Agriss v. Roadway Express, Inc.

OPINION

“The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled by reason and natural justice; since without these, it is impossible to have the perfect enjoyment of any other advantage or right.” 1 W. Blackstone, Commentaries *134.

Appellant William Agriss sued his employer, Roadway Express, Inc., for what he considered a slight to his good name. A jury trial was held in the Monroe County Court of Common Pleas. After appellant had presented his evidence the court entered a nonsuit. This appeal followed.

The standard of review we utilize on appeals from nonsuits is given in McNally v. Liebowitz, 498 Pa. 163, 170, 445 A.2d 716, 717 (1982):

The standard for determining whether an involuntary nonsuit should have been granted is:

... plaintiff must be given the benefit of every fact and reasonable inference arising from the evidence. (Citation omitted). All conflicts in the testimony must be resolved in plaintiffs favor and the entry of the compulsory nonsuit is only supportable in a clear case where the facts and circumstances have as the only conclusion the absence of liability.

Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 595, 437 A.2d 1198, 1200 (1981) (Emphasis added), citing McKenzie v. Cost Brothers, 487 Pa. 303, 307, 409 A.2d 362, 364 (1979).

Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Hawthorne v. Dravo Corp., Keystone Division, 313 Pa.Super. 436, 460 A.2d 266 (1983). Guided by this standard, we review the evidence.

Appellant had been employed by Roadway Express since 1976 as a truck driver. In February 1979 he was elected as *302 a shop steward for Teamsters Local 229, the union representing Roadway employees based at Roadway’s facility in Tannersville, Pennsylvania.

On December 21, 1979, Agriss returned from a round trip to Hartford, Connecticut, and entered the Tannersville terminal. He was scheduled to begin his vacation that day, and went to the dispatcher’s window to collect his vacation paycheck. The dispatcher told Agriss to see the driver foreman, Steve Versuk, before leaving. Versuk handed Agriss a company “warning letter,” signed by Versuk and initialed by Roadway relay manager Joe Moran. The letter read:

By reason of your conduct as described below, it is necessary to issue this notice of warning. On 12/21/79 at Tannersville, Pennsylvania you violated our policy (or contract) by opening company mail. Subsequent violations of any company policy or contract will result in your receiving more severe disciplinary action up to and including discharge in accordance with Article 44 of the Central Pa Over-the-road and Local Cartage Supplemental Agreement.

The accusation in the letter was false, as Agriss had never, on that or any other day, opened company mail.

Agriss immediately took the letter to Joe Moran and denied the charge. Moran refused to withdraw the warning. Agriss then wrote out and presented to Moran a formal protest, which Moran rejected. Under the contractual grievance procedure between Roadway and the Teamsters, such a protest was the only remedial step open to an employee receiving a warning letter.

In accordance with the normal grievance procedure, both the warning letter and Agriss’s protest were forwarded to the union business agent, Peter Fiore, in Stroudsburg, Pa. The procedure in addition provided for the warning letter to be distributed to Roadway’s manager of labor relations and to Agriss’s employee personnel file.

After fruitlessly trying to convince Moran to drop the charge, Agriss went to Roadway’s district safety supervi *303 sor, Ronald Brophy, thinking Brophy might know something about the charge. While Agriss was talking with Brophy in Brophy’s office, Moran entered and began “interrogating” Agriss about opening company mail. Unable to resolve to Moran’s satisfaction that the charge was unfounded Agriss left the terminal.

Shortly thereafter, Agriss flew with his girlfriend to Hawaii to spend the holidays. While Agriss was in Hawaii, Roadway driver Joseph Verdier heard stories about the warning circulating in the drivers’ room at the Tannersville terminal. He heard other drivers and a Roadway dispatcher saying that Agriss was going to be fired for looking into company mail.

When Agriss returned to work on the 7th or 8th of January, 1980, several drivers asked him about the warning letter, and he heard the charge against him bandied over the CB radio. Aside from Versuk, Moran, and Brophy, Agriss had mentioned the charge only to his girlfriend.

On January 11 Agriss approached Moran to discuss the charge further. Agriss, Moran, and driver foreman Ron Cropt took up the discussion in Cropt’s office. District manager Mike Wickham was walking by the office and stopped in. The discussion became heated, and loud enough to be heard by Roadway employees outside Cropt’s office. At one point Wickham accused Agriss, “You read my _mail.”

Over the next year Agriss continued to receive comments and questions about the warning letter from Roadway workers and union officials. Agriss instituted this suit, claiming that Roadway had defamed him. Trial began on January 23, 1981. After the plaintiff rested his case, the court granted the defendant’s motion for compulsory non-suit, ruling that the plaintiff’s evidence failed to prove a cause of action for defamation. The court en banc denied the plaintiff’s petition to remove the nonsuit.

After a thorough review of the record and the applicable law, we have concluded that the plaintiff’s evidence was *304 sufficient to go to the jury, and therefore that the nonsuit should be removed and the plaintiff granted a new trial.

The plaintiffs burden of proof in a defamation case is set out in 42 Pa.C.S. § 8343(a):

Burden of plaintiff — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be applied to the plaintiff.

(6) Special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion.

See also Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6 (1982) (plaintiff has burden to prove falsity of defamatory statement).

In finding appellant’s evidence insufficient, the trial court ruled that: 1) the words “opening company mail” were incapable of a defamatory meaning as a matter of law; 2) there was insufficient proof that the defendant had published the words; 3) the plaintiff failed to prove “actual harm”; 4) the words complained of were not “libel per se” and the plaintiff failed to prove that they caused him special harm. In its opinion and order dated April 20, 1982, the court en banc upheld the trial court and further refined part 2 of the trial court’s ruling by holding that to the extent the plaintiff’s evidence proved publication, it was privileged publication. We address in turn each of the court’s holdings.

1. Defamatory character of the words “opening company mail"

The threshold question in an action for defamation is whether the communication at issue is capable of a *305 defamatory meaning. It is for the court in the first instance to make this determination; but if the communication could be understood as defamatory then it is for the jury to determine whether it was so understood by the recipient. Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971); Dunlap v. Philadelphia Newspapers, supra.

A publication is defamatory if it tends to blacken a person’s reputation or expose him to public hatred, contempt, or ridicule, or injure him in his business or profession. Corabi, supra; Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962); Dunlap, supra. “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Restatement (Second) of Torts § 559 (1977); Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982) ; Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980); Vitteck v. Washington Broadcasting Co., 256 Pa. Super. 427, 389 A.2d 1197 (1978). For purposes of the threshold determination whether a communication could be understood as defamatory, it is not necessary for the communication actually to have caused harm to reputation; defamatory character depends on the general tendency of the words to have such an effect. Corabi, supra; Miller v. Hubbard, 205 Pa.Super. 111, 207 A.2d 913 (1965); Restatement, supra, § 559 Comment d. However, it is not sufficient if the words are merely embarrassing or annoying to the plaintiff. Beckman v. Dunn, supra.

The court should read an allegedly libelous statement in context. Corabi, supra. The nature of the audience seeing or hearing the remarks is also a critical factor in assessing whether a communication is capable of a defamatory meaning. Beckman, supra.

*306 The test is the effect the article is fairly calculated to produce, the impression it would naturally engender; in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them.

Corabi, supra, 441 Pa. at 447, 273 A.2d at 907. Nevertheless, neither the mere susceptibility of an article to an interpretation which would render it innocuous nor the intention of the author conclusively defeats a right of action for libel. Id.; Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980).

With these principles in mind we turn to the parties’ arguments on the defamatory character of the charge “opening company mail.”

Appellant contends that the words could have been understood to impute to him at least dishonesty, lack of integrity, and untrustworthiness, and at worst the crime of illegally opening another’s United States mail. See 18 U.S.C. § 1702. He argues that the charge therefore had the potential to damage his reputation among fellow workers, especially in his capacity as a union official entrusted with handling employee grievances against the company.

For its part appellee argues that, “Taken at its worst, the warning issued in this case implies that Agriss is nosey or is eavesdropping on company affairs. There is no accusation of crime____” Brief for Appellee at 5. “[T]he words were not calculated to demean Agriss; they were intended to communicate to him a warning not to violate company policy.” Id. at 6.

The court en banc agreed with appellee’s interpretation, saying, “It appears to us that the words ‘opening company mail’. in the context in which they were delivered and with regard to the audience most likely to receive them amounted to little more than a benign reprimand for a purported breach of company policy.” Slip op. at 4.

*307 We have considered the court en banc’s construction of what the words actually were meant to convey, but we cannot agree that as a matter of law the words can be confined to such a benign meaning. The plaintiff in this case attempted to prove that the company’s publication of the charge “opening company mail” was not an official reprimand through proper channels, but a malicious dissemination of false charges to employees at large. Assuming this wider publication to have been proven, see section 2 infra, the words’ potential to expose appellant to public contempt and ridicule becomes clearer. See Collins v. Dispatch Publishing Co., 152 Pa. 187, 25 A. 546 (1893) (on the meaning to be attached to the word “intimacy”).

Appellant proved, for purposes of overcoming a motion for nonsuit, that when he returned from his vacation speculation was rampant among his fellow employees and union men about what exactly he had done and whether he would be discharged for it. Obviously the charge of “opening company mail” implied more to some people than that he had received a benign reprimand. For a Roadway employee to be charged with opening company mail was highly uncommon. Appellant testified that in all his time as a union steward, during which he had dealt with “thousands” of grievances, he had never heard of an employee’s being warned or cited for opening company mail. T.T. at 73-74. Moreover, the specific misconduct alleged — opening mail he had no right to open — reasonably could be interpreted to call in question appellant’s general character for honesty, integrity, or trustworthiness. In fact, appellant testified that the accusation prompted people to ask him what he was accused of stealing. Id. at 56. Giving appellant the benefit of inferences to which he is entitled, the charge “opening company mail” was capable of impugning appellant’s good name or reputation in the popular sense, and these are the interests that defamation law seeks to protect. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Rybas v. Wapner, supra.

*308 Appellee calls our attention to the following cases in which Pennsylvania appellate courts found publications to be nondefamatory as a matter of law: Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 229 A.2d 733 (1967) (characterization of architect’s buildings as “chicken coops”); McAndrew v. Scranton Republican Publishing Co., 364 Pa. 504, 72 A.2d 780 (1950) (characterization of politician as favoring “a little Communism”); Redding v. Carlton, 223 Pa.Super. 136, 296 A.2d 880 (1972) (township supervisor, considering purchase for township of lands he partly owned, accused of conflict of interest “and perhaps much more”). See also Rybas v. Wapner, supra (characterization of plaintiff as anti-Semitic not actionable).

Given the unique context and factual situation of each defamation case, it is not particularly helpful to compare the words “opening company mail” with widely dissimilar words alleged to be defamatory in other cases. The rule of law appellee contends for, on which the cited cases more or less turn, is that “Statements which represent difference of opinion or are annoying or embarrassing, are without more not libelous.” Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962). See also Braig v. Field Communications, 310 Pa.Super. 569, 456 A.2d 1366 (1983) (expression of opinion not actionable in defamation unless reasonably understood to imply defamatory allegation of fact); accord, Restatement, supra, § 566. The words “opening company mail” were not an expression of opinion, but a factual allegation charging appellant with a concrete act of impropriety. And as we have already indicated, in our opinion the words had the potential to cause harm greater than mere annoyance or embarrassment. Compare, e.g., Mercado v. Hoefler, 190 Cal.App.2d 12, 11 Cal.Rptr. 787 (1961) (defamatory to say of employee that he took papers out of employer’s private file); Potter v. Milbank Manufacturing Co., 489 S.W.2d 197 (Mo.1972) (defamatory for plaintiff’s employer to publish charge plaintiff was argumentative, irritable, and insecure, and his work slow and unsatisfactory); Arnold v. Sharpe, 37 N.C.App. 506, 246 S.E.2d 556 (1978) (libelous to write of *309 employee that she was troublemaker and gossip and could not get along with others), rev’d on other grounds, 296 N.C. 533, 251 S.E.2d 452 (1979).

We hold that the words “opening company mail,” as applied to appellant and circulated among his fellow employees, were capable of a defamatory meaning.

2. Sufficiency of proof of publication/Existence of privilege

The issues of publication and privilege intertwine in this case to form the question: Was appellant’s evidence sufficient to prove that Roadway published the charge “opening company mail” in a manner that was not privileged?

In general, publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed. Gaetano v. Sharon Herald Co., 426 Pa. 179, 231 A.2d 753 (1967); Restatement, supra, § 577. By its nature, the question whether there has been publication by the defendant is a question of fact for the jury.

Liability for publication of defamatory matter may be defeated by a privilege to publish the defamation. One who publishes defamatory matter within the scope of an absolute privilege is immune from liability regardless of occasion or motive. Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963). However, such a privilege may be lost if the publisher exceeds the scope of his privilege by publishing the defamation to unauthorized parties. It is a question of law whether privilege applies in a given case, but a question of fact for the jury whether a privilege has been abused. Montgomery v. City of Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); see also Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984).

Here the court en banc held that “the publication of the warning letter to those parties who were proper recipients [under the collective bargaining agreement between Roadway and the union] was absolutely privileged.” Slip op. at *310 6. This holding undoubtedly was correct. Our Court has held, based on the public policy favoring private resolution of disputes among employers, employees, and unions, that Pennsylvania law extends to employers an absolute privilege to publish defamatory matter in notices of employee termination. DeLuca v. Reader, 227 Pa.Super. 392, 323 A.2d 309 (1974). DeLuca defined the scope of the privilege as follows:

[N]otices of dismissal for cause which are contemplated by a collective bargaining agreement and which are published by the employer only to those with a legitimate interest in the subject matter may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal.

227 Pa.Super. at 399-400, 323 A.2d at 313 (emphasis added), quoting Joftes v. Kaufman, 324 F.Supp. 660, 662 (D.D.C. 1971). Accord, Hasten v. Phillips Petroleum Co., 640 F.2d 274 (10th Cir.1981); Macy v. Trans World Airlines, Inc., 381 F.Supp. 142 (D.Md.1974). 1

We agree with the learned court en banc of Monroe County that the absolute privilege pertaining to notices of dismissal applies with equal force to a warning letter. For purposes of defamation privilege there is no valid distinction to be drawn between dismissal notices contemplated by a collective bargaining agreement and warning notices so contemplated. Roadway therefore had an absolute privilege to publish Agriss’s warning letter to parties entitled to receive it under the collective bargaining agreement. These parties were Agriss himself; Peter Fiore, the union business agent; and Roadway management personnel Joe Moran, Steve Versuk, and the manager of labor relations. The *311 copy of the warning letter sent to Agriss’s employee personnel file also was covered by the privilege.

However, it is undisputed that while Agriss was away in Hawaii the contents of his warning letter were widely disseminated to persons who were not authorized to read the letter. Joseph Verdier testified that he heard several drivers and a company dispatcher talking about the warning in the drivers’ room at Tannersville. Agriss himself testified that upon returning from Hawaii he was greeted with comments and questions about the warning from several drivers, and also heard the charge against him discussed indiscriminately over the citizens band radio. 2

Agriss testified without qualification that aside from the parties who were privileged under the grievance procedure, he had told no one else at Roadway about the charge except Ronald Brophy, a management-level employee. For purposes of overcoming the nonsuit motion, therefore, appellant proved that the contents of the warning letter were published in an unprivileged manner, and that only a handful of possible sources could have originated the unprivileged publication. The question we turn to now is *312 whether the evidence was sufficient to hold Roadway liable for unprivileged, excessive publication. 3

Appellant argues that circumstantial evidence permitted the link to be made. He relies on the historic decision in Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959), in which our Supreme Court said,

It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability____ The facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant. It is the duty of plaintiff to produce substantial evidence which, if believed, warrants the verdict he seeks. The right of a litigant to have the jury pass upon the facts is not to be foreclosed just because the judge believes that a reasonable man might properly find either way. A substantial part of the right to trial by jury is taken away when judges withdraw close cases from the jury. Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith.

397 Pa. at 138-39, 153 A.2d at 480.

In rejecting appellant’s argument the court en banc, also quoting from Smith, drew on the equally well settled rule that “the jury may not be permitted to reach its verdict *313 merely on the basis of speculation or conjecture, but ... there must be evidence upon which logically its conclusion may be based.” Id., 397 Pa.Superior Ct. at 138, 153 A.2d at 479.

Although admittedly this is a close case, we conclude that appellant’s evidence met the Smith test for circumstantial proof. Without resort to conjecture, the jury would have had a rational basis to choose, over any other inference suggested by the evidence, the inference that Roadway disseminated the defamatory matter.

Appellant’s evidence, if believed, reasonably suggested only one party outside Roadway’s control, Peter Fiore, who could have published the defamation. If Fiore did not originate publication, the only other reasonable inference to be drawn is that Roadway managers or agents did. 4 Having concluded that appellant’s evidence narrowed the field of conceivable publishers to Fiore and Roadway, we iterate that it is beyond the power of the court to say whether two or more reasonable inferences are equal. Id. In order to avoid nonsuit, the plaintiff need not negate all other possible causes of an occurrence, Jones v. Treegoob, 433 Pa. 225, 249 A.2d 352 (1969), or prove with mathematical certainty, to the exclusion of other possibilities, that an occurrence could only have been caused in one manner consistent with the defendant’s liability. Calhoun v. Jersey Shore Hospital, 250 Pa.Super. 567, 378 A.2d 1294 (1977).

However, lest it be objected that there was still room for impermissible speculation as between two possible sources of publication, we must emphasize that there was evidence from which the jury reasonably could have concluded that Roadway was a more likely source of publication than Fiore. On cross-examination of appellant, defense counsel suggested that Fiore might have undertaken to investigate *314 the warning letter, and in the course of investigation broached the charge against appellant to unauthorized Roadway employees. T.T. at 82. In response and on redirect examination, appellant testified that Fiore’s visits to Tannersville were very rare, that ordinarily any inquiry from Fiore came to his attention, and that Fiore had never contacted him personally about the letter. Id. at 82, 89, 90. Finally, appellant’s evidence might have suggested to the jury that Roadway had a motive for defaming him, namely to discredit him as a union shop steward. Taken as a whole, the evidence created a jury question on publication.

Our holding that circumstantial evidence was sufficient to prove publication by the defendant parallels other Pennsylvania decisions permitting the factfinder to infer liability despite the absence of direct proof linking the party held liable to wrongful or negligent acts. See Sperrazza v. Cambridge Mutual Fire Insurance Co., 313 Pa.Super. 60, 459 A.2d 409 (1983) (no direct evidence linking insurance claimants to arson); Speicher v. Reda, 290 Pa.Super. 168, 434 A.2d 183 (1981) (action under Pennsylvania dram shop act; evidence sufficient to prove driver was served alcohol while “visibly intoxicated,” even though no direct evidence of driver’s condition while in tavern); Bethay v. Philadelphia Housing Authority, 271 Pa.Super. 366, 413 A.2d 710 (1979) (no witness to boy’s fall to death down elevator shaft; evidence of landlord’s negligence sufficient); Canery v. Southeastern Pennsylvania Transportation Authority, 267 Pa.Super. 382, 406 A.2d 1093 (1979) (no witness to subway accident).

We have found no comparable case in Pennsylvania’s law of defamation. However, Tumbarella v. Kroger Co., 85 Mich.App. 482, 271 N.W.2d 284 (1978), is squarely on point and in line with our holding. There the Kroger Company circulated a letter to managers of its grocery stores, telling them the plaintiff had been fired for theft. Subsequently the plaintiff received phone calls from several employees in the other stores inquiring about the charge. The court held that there was a reasonable inference that the privileged *315 communication to the store managers had been republished to unauthorized persons, and that Kroger could be held liable. The court also applied the rule that “one who publishes a defamatory statement is liable for the injurious consequences of its repetition where the repetition is the natural and probable result of the original publication.” 85 Mich.App. at 496, 271 N.W.2d at 290. Accord, W. Prosser, Law of Torts § 112 at 762 & nn. 16-18 (4th ed. 1971); 53 C.J.S. Libel and Slander § 85. The Tumbarella court further held that it is a question of fact whether repetition is the natural and probable result of an original publication. Cf. Pulliam v. Bond, 406 S.W.2d 635 (Mo.1966) (defendant not liable for unauthorized republications); Jorgensen v. Pennsylvania Railroad, 25 N.J. 541, 566, 138 A.2d 24, 38 (1958) (“A mere showing of extensive publication without proof tending to connect the defendant to such publication is not sufficient to destroy ... qualified privilege ____”).

We believe that