Paul v. Lankenau Hospital

*34 BECK, Judge,

concurring and dissenting:

I respectfully dissent from the majority decision to grant Dr. Paul a trial on his defamation claim. I concur in the result as to the remaining issues. I also write separately in order to explain why I believe that the majority’s view of promissory estoppel is incompatible with Banas v. Matthews International Corporation, 348 Pa.Super. 464 , 502 A.2d 637 (1985) (en banc), and why Banas should be expressly overruled.

DEFAMATION

In any defamation action, the plaintiff must prove that the defendant published a defamatory communication. 42 Pa.Cons.Stat.Ann. § 8343 (Purdon 1982). The majority concludes that Lankenau’s act of discharging Dr. Paul may be viewed as a defamatory communication that he was a thief. I disagree.

An employer does not defame an employee if he fires the employee after privately accusing him of a crime. See Williams v. Kroger Grocery & Baking Co., 337 Pa. 17 , 10 A.2d 8 (1940). Dr. Paul failed to introduce evidence that the management of Lankenau informed the hospital staff, prospective employers, or other third parties of the reason for his discharge. Compare Geyer v. Steinbronn, 351 Pa.Super. 536 , 506 A.2d 901 (1986) (employer defamed plaintiff by circulating letter of reference which implied that plaintiff was forger); Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495 , 421 A.2d 831 (1980) (employer defamed plaintiff by forcing plaintiff to resign and then telling other workers that plaintiff was fired for stealing company property). Moreover, during the course of his employment, Lankenau had not publicized the allegations against Lr. Paul beyond the limited extent necessary to conduct an internal investigation. Under these circumstances, I would find that Lankenau did not publish any communication which was capable of a defamatory meaning.

*35 PROMISSORY ESTOPPEL

I agree with the majority that the award of damages to Dr. Paul should be upheld on the basis of promissory estoppel. However, I also believe that the majority should have expressly overruled the decision of this court in Banas v. Matthews International Corporation, 348 Pa.Super. 464 , 502 A.2d 637 (1985) (en banc). Banas cannot be meaningfully distinguished from the case sub judice.

In Banas , the plaintiff was an employee-at-will who worked for a company which manufactured grave markers. Plaintiff Banas received direct permission from his immediate supervisor to build a grave marker from company owned materials and place it on his nephew’s grave. Banas had also received a handbook, distributed by his employer, which stated that supervisors will often cooperate with employees by giving permission to use company equipment for personal work. He was then fired for doing exactly what he had been given permission to do. Bañas filed suit against his employer for breach of contract. At trial, the judge instructed the jury that a “contract by estoppel” might be found if the jury concluded that Banas had permission to make the grave marker. 348 Pa.Super. at 486 n. 12, 502 A.2d 648 n. 12. The jury returned a verdict of $10,000 for the breach of contract claim. On appeal, Superior Court en banc reversed.

A careful reading of Banas indicates that in Banas , as in the instant case, permission was derived from the employer and the employer should have reasonably believed that his promise connoted to his employee that he had permission to act. It is also clear that both Banas and Dr. Paul relied on a promise and acted in accordance with that promise. And in both cases enforcement of the promise was necessary to avoid an injustice.

The majority indicates that the critical difference between Banas and the instant case is that in Banas “the employer could not have reasonably believe[d] that his employee *36 would rely upon a promise.” Majority at 12. There is no support for this statement. A company supervisor gave Bañas permission to make a grave marker in accordance with company policy as stated in a handbook. All of the evidence supports the proposition that the company should have reasonably believed that the employee would rely on the promise.

I have always believed that Banas was wrongly decided. See Banas, 348 Pa.Super. at 498-504 , 502 A.2d 655 -58 (Beck, J., dissenting). This conclusion is supported by the analysis • which underlies the majority’s decision in the instant case. Wholly apart from any contractual significance that might be attributed to the employee handbook distributed by the employer, the fact remains that Bañas’ employer made a promise which it reasonably could have expected would induce action on the part of Bañas. I believe that the doctrine of promissory estoppel afforded Bañas a remedy for the wrong done by his employer. The analysis of promissory estoppel in the majority opinion is correct, but it leads to the conclusion that Bañas should have prevailed as well as Dr. Paul. See Majority at 12-15 (applying Cardamone test).

Although the majority goes to great lengths to distinguish the Banas case, I can only conclude that Banas has been substantially undermined. In my view, it would have been preferable for the majority to overrule Banas outright. In this way, we could have provided the bench and bar of Pennsylvania with a clear statement of the effect of the doctrine of promissory estoppel on employment-at-will.

In summary, for the above-stated reasons, I would affirm the award of damages as remitted on the basis of promissory estoppel, and I would affirm the trial court’s entry of non-suit as to Dr. Paul’s remaining claims, including defamation.

DEL SOLE, J., joins.