Gordon v. Lancaster Osteopathic Hospital Ass'n

CIRILLO, Judge,

concurring and dissenting:

I respectfully must disagree with the conclusion that the words contained in the letters of Drs. Arrow, Axelrod, Hartz, and Yunginger were incapable of a defamatory meaning. I would reinstate counts 1 through 5 of appellant’s complaint sounding in defamation.

Defendant Arrow’s letter stated, in part:

At an official meeting of the Department of Internal Medicine, it was a unanimous decision upon the following matter; we are totally unhappy and would like to present a vote of no confidence in Dr. Ivan Gordon.

We all feel that we lack trust in the reporting of Dr. Gordon. We feel that the Pathology Department should be stronger as the institution grows.

The first paragraph of defendant Axelrod’s letter read:

*269 At the February meeting of the surgical staff the continual ongoing serious problem of the present junior pathologist was discussed in detail by my department. The department concludes that because of the difficulty of communication and the lack of confidence in Dr. Ivan Gordon’s work, that [sic] we regretfully recommend to you that under no circumstances shall Dr. Ivan Gordon accede the [sic] chairmanship of the department of Pathology at the Lancaster Osteopathic Hospital, and we further feel that attempts at recruitment of a pathologist should be actively carried out by the institution.

Defendant Hartz’s letter said: “At a department head meeting held Tuesday, March 4, 1980 we discussed the service provided by and the relationship with Dr. C. Ivan Gordon, Department of Pathology. A resolution of no confidence in the above individual was passed by a unanimous vote.”

A fourth letter signed by defendants Arrow and Yunginger also expressed “no confidence” in Gordon’s “attitude” and “performance.”

I should think that no citation of authority beyond that provided by the majority is necessary to demonstrate that these imputations are capable of a defamatory meaning. The majority states:

We begin our analysis with recognition that a complaint alleging defamation should not be dismissed upon a preliminary objection in the nature of a demurrer unless the court is certain that the communication is incapable of bearing a defamatory meaning. Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. 427 , 389 A.2d 1197 (1978). The court, in making this determination, must accept as true all well-pleaded material facts alleged in the complaint, as well as all inferences reasonably deducible therefrom. Id. Under the circumstances of this case, we recognize that a communication is defamatory which “ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession.” *270 Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 463 , 442 A.2d 213, 216 (1981), cert. denied 457 U.S. 1134 [ 102 S.Ct. 2961 , 73 L.Ed.2d 1351 ] (1982), quoting Restatement (Second) of Torts § 573 (1977). The comment to section 573 elaborates:

The imputation must be of such a character as to disparage the other in his business, trade, profession or office or tend to harm him in it____ When peculiar skill or ability is necessary, an imputation that attributes a lack of skill or ability tends to harm the other in his business or profession.

Restatement (Second) of Torts § 573, comment (c) (1977).

If the court has any doubt that the communication is defamatory, then the issue must be given to the jury for them to determine whether the defamatory meaning was understood by the recipient. Vitteck, 256 Pa.Super. at 431 , 389 A.2d at 1199 . The court must be guided by consideration of the expertise and knowledge of those to whom the publication is circulated, and by consideration of the effect it is fairly calculated to produce. Corabi v. Curtis Publishing Co., 441 Pa. 432 , 273 A.2d 899 (1971). “The test is ... the impression it would naturally engender in the minds of the average persons ... among whom it is intended to circulate.” Id., 441 Pa. at 447 , 273 A.2d at 907 (citation omitted). Here, those ‘average persons’ are appellant’s fellow physicians and the professional community at LOH, particularly persons involved with personnel decisions. Even where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, the issue must proceed to the jury. Zelik v. Daily News Publishing Co., 288 Pa.Super. 277 , 431 A.2d 1046 (1981); Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588 , 422 A.2d 625 (1980).

At 261-262.

Without reading more into the letters than their plain wording imports, one could easily determine that: 1) Arrow's letter imputes that the internal medicine department *271 did not trust Gordon’s capability to report pathology department findings, and felt that Gordon’s continued presence would therefore be inconsistent with a strong pathology department; 2) Axelrod’s letter implies that Gordon was unfit to be chairman of the pathology department because the department of surgery “lack[ed] ... confidence in Dr. Ivan Gordon’s work”; 3) the other two letters indicate that the members of two medical departments at the hospital had no confidence in Gordon’s “service” and “performance.” Surely these expressions can be understood to imply that Dr. Gordon’s actual work performance showed him to be unfit to practice his business or calling as a pathologist at the hospital and lacking in the professional competence required for the chairmanship of the pathology department. So understood, the words clearly bore the potential to impair Gordon’s “ ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence” in which his colleagues and employers held him. Zelik v. Daily News, supra, 288 Pa.Super. at 281 , 431 A.2d at 1049 , quoting Vitteck, supra, 256 Pa.Super. at 432 , 389 A.2d at 1200 (quoting W. Prosser, Handbook of the Law of Torts § 111, at 739 (4th ed. 1971)) (emphasis mine). In fact, Gordon alleges that the words had exactly such a damaging effect on his professional reputation, with the ultimate result that the Lancaster Osteopathic Hospital refused to renew his contract.

The majority holds that the “only reasonable interpretation of these letters is that they are expressions of opinion.” At 263. Expressions of opinion, however, can support an action for libel if they imply defamatory allegations of fact. Braig v. Field Communications, 310 Pa.Super. 569 , 456 A.2d 1366 (1983); Beckman v. Dunn, 276 Pa.Super. 527 , 419 A.2d 583 (1981); Restatement (Second) of Torts § 566 (1977); cf. Rybas v. Wapner, 311 Pa.Super. 50 , 457 A.2d 108 (1983) (not actionable to characterize plaintiff as “anti-Semitic” in letter to his attorney). Even if the only reasonable way to interpret the defendants’ letters is as expressions of opinion, I think it obvious that the particular expressions *272 used can be read reasonably to imply defamatory allegations of fact, namely Dr. Gordon’s unreliable performance as a pathologist and deficiency in the objective qualifications needed in the position of department chairman.

Moreover, under any interpretation the letters do not consist entirely of opinion; they profess to report as fact that the collective members of various medical departments passed votes of no confidence in Dr. Gordon. The Doctor alleges that the letters were false, and accordingly we must treat this “fact” recited in the letters as false.

The allegedly defamatory words used in the letters are virtually indistinguishable from those found actionable in Miller v. Hubbard, 205 Pa.Super. 111 , 207 A.2d 913 (1965), where an insurance claims adjuster wrote a letter saying that based on the adjuster’s past experience with a contractor he had “no confidence” in the contractor’s opinion about the cause of damage to a building. Obviously such well-chosen “expressions of opinion” tend to imply that they are based on defamatory facts, and can seriously damage a person’s business reputation if believed. 1

The following quote from Miller is apropos to the majority’s observation that Arrow, Axelrod, Hartz, and Yunginger “cunningly or unwittingly stopped short of committing acts susceptible of defamatory meaning” (at 262, quoting trial ct. op.):

To render a defamatory statement actionable, it is not necessary that the charge be made in a direct, positive and open manner. If the words used, when taken in their ordinary acceptation, convey a degrading imputation, no matter how indirectly, they are libelous, and it matters *273 not how artfully their meaning is concealed or disguised. 33 Am.Jur. (Libel and Slander) Sec. 9, page 43.

205 Pa.Super. at 115 , 207 A.2d at 916 .

The mere susceptibility of a statement to an innocuous interpretation does not defeat a cause of action in libel. Raffensberger v. Moran, 336 Pa.Super. 97 , 485 A.2d 447 (1984); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295 , 483 A.2d 456 (1984). Especially in ruling on preliminary objections in the nature of a demurrer, the court should not decide that words are nondefamatory as a matter of law unless it is certain that a nondefamatory meaning is the only reasonable interpretation to be given to the words. Zartman v. Lehigh County Humane Society, 333 Pa.Super. 245 , 482 A.2d 266 (1984).

I cannot agree that the only rational interpretation of the defendants’ letters is to view them as innocuous and nondefamatory expressions of opinion. Giving appellant the benefit of reasonable inferences from well-pleaded facts to which he is entitled on appeal from a demurrer, see Douglas v. Schwenk, 330 Pa.Super. 392 , 479 A.2d 608 (1984), I find the letters to be capable of a defamatory meaning.

I deem it appropriate to consider, however, whether the trial court’s dismissal of counts 1-5 of the complaint might be sustained on the basis of privilege. Each defendant, in preliminary objections, raised the defense of privilege under the Peer Review Protection Act of July 20, 1974, P.L. 564, No. 193, § 3, 63 P.S. § 425.3. The court declined to rule on the issue of privilege, finding it inappropriate for resolution on preliminary objections. Appellees Arrow and Hartz do not pursue the claim of privilege on appeal; the remaining appellees advert to the theory of privilege enunciated in DeLuca v. Reader, 227 Pa.Super. 392 , 323 A.2d 309 (1974) (allocatur denied), a theory not specifically presented to the trial court. Principles of waiver, however, cannot preclude us from affirming dismissal of the defamation counts on the ground that appellees’ letters were privileged. It is well settled that we may affirm the trial court’s decision if the result is correct on any legal ground, without regard to the *274 grounds relied on by the trial court. E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610 , 381 A.2d 441 (1977); Perri v. Broad Street Hospital, 330 Pa.Super. 50 , 478 A.2d 1344 (1984).

There are basically two classes of privilege which may defeat liability in an action for defamation: conditional privilege and absolute privilege.

A conditional, qualified privilege extends to defamatory communications made upon a proper occasion, from a proper motive, and based on reasonable or probable cause. Biggans v. Foglietta, 403 Pa. 510 , 170 A.2d 345 (1961). The constitutional privilege stemming from the First Amendment is a type of conditional privilege since it may be lost if the publisher acts with actual malice.

But see Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304 , 485 A.2d 374 (1984) (under United States Supreme Court interpretations of constitutional privilege, common law conditional privileges “have lost their significance”) (dictum).

One who publishes within the scope of an absolute privilege is immune from liability even though he acts from an improper motive, with actual malice, and without reasonable or probable cause. Sciandra v. Lynett, 409 Pa. 595 , 187 A.2d 586 (1963). A publisher acting under an absolute privilege loses its protection only if he exceeds its scope by publishing to unauthorized parties. See Agriss v. Roadway Express, supra.

“[A]bsolute privileges” are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for miscon *275 duct in their position. Therefore the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor.

Restatement (Second) of Torts, Ch. 25, at 243 (emphasis added). For an enumeration of the absolute privileges generally recognized, see id. §§ 583-592A.

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).

When the legal question of privilege is interlaced with factual questions concerning its abuse, the issue of privilege generally cannot be resolved as a matter of law. The defense of conditional privilege in particular nearly always calls for factual determinations about the defendant’s motives and mental state in publishing a defamation. We have thus held that privilege to defame is an affirmative defense which may not be decided on preliminary objections, but must be raised as “new matter” in the defendant’s answer. Barber v. Lynch, 275 Pa.Super. 333 , 418 A.2d 749 (1980); see Pa.R.C.P. 1030.

However, as we have just seen the policy behind absolute privilege is to preclude not only liability for defamation, but also the risk and expense of defending suit. Restatement, supra; see also Montgomery v. Philadelphia, supra. Accordingly, the question of absolute privilege may be raised and decided on preliminary objections where the defendant’s entitlement to an absolute privilege appears on the face of the complaint so as to preclude the plaintiff’s right of action as a matter of law. See, e.g., Smith v. Griffiths, 327 Pa.Super. 418 , 476 A.2d 22 (1984). Accord Greenberg v. Aetna Insurance Co., 427 Pa. 511 , 235 A.2d 576 (1967), cert. denied, 392 U.S. 907 , 88 S.Ct. 2063 , 20 L.Ed.2d 1366 (1968); DeSantis v. Swigart, 296 Pa.Super. 283 , 442 A.2d 770 (1982); cf. Burke v. Triangle Publications, Inc., 225 Pa.Super. 272 , 302 A.2d 408 (1973) (allocatur denied) (quali *276 fied, constitutional privilege not properly raised in preliminary objections).

With those principles in mind, we should examine the privileges of arguable application to the present context, to determine whether any such privilege would furnish grounds for sustaining appellees’ objections as a matter of law.

The Peer Review Protection Act confers immunity in the following terms:

(a) Notwithstanding any other provision of law, no person providing information to any review organization shall be held, by reason of having provided such information, to have violated any criminal law, or to be civilly liable under any law, unless:

(1) such information is unrelated to the performance of the duties and functions of such review organization, or

(2) such information is false and the person providing such information knew, or had reason to believe, that such information was false.

63 P.S. § 425.3(a). “Review organization” as defined by the Act clearly would include the officers of Lancaster Osteopathic Hospital to whom appellees disseminated their letters. See id. § 425.2. The privilege provided by the Act is therefore of primary relevance to this case; it is, however, a conditional privilege which is lost if the person participating in peer review knowingly disseminates false information.

Dr. Gordon alleges that the information contained in appellees’ letters was false and that appellees knew it to be false. If so, peer review immunity would be lost by virtue of section 425.3(a)(2). Consequently, the Act does not provide grounds for upholding the judgment rendered for appellees on preliminary objections.

The only species of absolute privilege appellees can point to as possibly immunizing their action is the privilege pronounced in DeLuca v. Reader, supra, protecting certain communications between employers and employees arising in the context of a labor dispute. Appellees’ letters to the *277 officers of Lancaster Osteopathic Hospital communicated information in the context of what might be characterized as a “labor dispute” concerning Dr. Gordon. However, even a superficial analysis demonstrates that appellees cannot claim absolute privilege under the rationale of DeLuca .

In DeLuca this Court considered national and state policies favoring private resolution of disputes between employers, employees, and unions, and held that

[Njotices 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 , quoting Joftes v. Kaufman, 324 F.Supp. 660, 662 (D.D.C.1971) (quoting General Motors Corp. v. Mendicki, 367 F.2d 66, 71 (10th Cir.1966)). In Agriss v. Roadway Express, supra, we extended the DeLuca privilege by logical implication to employee warning notices contemplated by a collective bargaining agreement.

Crucial to the DeLuca-Agriss privilege is not the mere fact that libelous communications have occurred in the context of a labor dispute, but that the communications be transmitted in notices specifically authorized by a collective bargaining agreement between an employer and a union. Thus, if a libel is engendered by utilization of the regular procedures mandated under a collective bargaining agreement, important considerations of labor policy dictate that the dispute be resolved under the agreement and not by resort to the state courts.

Outside the class of cases represented by DeLuca and Agriss , this State does not recognize an absolute privilege to defame in the context of a labor dispute. Indeed, the type of privilege generally applicable to labor-related defamation actions is conditional, and is closely related to the constitutional privilege protecting the First Amendment *278 right to free speech. See Old Dominion Branch No. 496, National Assn. of Letter Carriers v. Austin, 418 U.S. 264 , 94 S.Ct. 2770 , 41 L.Ed.2d 745 (1974); Raffensberger v. Moran, supra; see also Wilson v. Benjamin, 332 Pa.Super. 211 , 481 A.2d 328 (1984); see generally Annots., 60 A.L.R.3d 1041 , 1080 (1974).

Thus, even were we to find, by analogy, a “labor dispute” between Dr. Gordon and his peers at the hospital, we could not fashion an absolute privilege that would entitle appellees to judgment on this appeal. I therefore dissent from the decision to affirm dismissal of counts 1 through 5 of the complaint. 2

. I find unpersuasive any attempt to distinguish Miller on the ground that there the contractor was not involved in the transaction referred to in the defamatory letter. The letter defamed Miller by imputing that his unreliability on past occasions warranted a lack of confidence. In any event, the issue in a defamation action is not whether the plaintiff was somehow "involved" in the transaction underlying the defamatory communication, but whether the communication itself is false and defamatory.

. Additionally, I dissent from affirmance of the dismissal of count 14, and would reinstate that claim. Count 14 alleges, in paragraph 161, that appellant’s termination from employment violated public policy. Neither the trial court nor the majority has addressed appellant’s public policy argument on the merits, and yet both courts have inexplicably denied the claim. I find that the legal merit of the public policy argument cannot be determined on the present state of the record, and would remand on count 14 for further proceedings. I concur in the majority’s judgment insofar as it reverses dismissal of counts 7-11 of the complaint alleging interference with contractual relations; and insofar as it affirms dismissal of counts 6, 12-13, and 15-16 of the complaint.