Baker v. Lafayette College

SPAETH, President Judge,

dissenting:

This appeal is from two orders. I believe that both orders should be reversed.

In its first order the trial court sustained the College’s preliminary objections in the nature of a demurrer, holding that insofar as the Gluhman evaluations were concerned, appellant had stated no claim against the College for defamation because the evaluations were absolutely privileged. The standard by which we must review a trial court’s action sustaining a demurrer is as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true. Clevenstein v. Rizzuto, 439 Pa. 397 , 266 A.2d 623 (1970). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501 , 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297 , 167 A.2d 472 (1960).

Mahoney v. Furches, 503 Pa. 60, 66 , 468 A.2d 458, 461-62 (1983), quoting Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241 , 465 A.2d 1231 (1983).

Applying this standard, I conclude that it cannot be said “with certainty that no recovery is possible.” As I shall try *89 to show, to hold that the Gluhman evaluations were absolutely privileged is contrary to settled law.

In its second order the trial court granted the College’s motion for summary judgment on what was left of the complaint after the preliminary objections had been sustained. The standard by which we must review this order is as follows:

Summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. No. 1035(b); Toth v. City of Philadelphia, 213 Pa.Super. 282 , 247 A.2d 629 (1968). In addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court’s function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Schacter v. Albert, 212 Pa.Super. 58 , 239 A.2d 841 (1968); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198 , 280 A.2d 570 (1971). Taylor v. Tukanowicz, 290 Pa.Super. 581, 585 , 435 A.2d 181, 183 (1981).

After examining the record in the light most favorable to appellant, I am convinced that, except as to one of his claims for defamation, genuine issues of material fact do exist, and that accordingly, the summary judgment should be vacated and the case remanded for trial, both on appellant’s remaining claims for defamation and on his claim for breach of contract.

The Facts

By letter dated May 19, 1976, the College offered appellant the position of Assistant Professor of Art for a two- *90 year term, 1976-1978. After stating the term and salary, the letter continued:

At this time no assurance can be offered that you will receive a renewal of appointment or that you may be promoted to associate professor or receive tenure. Continuation and advancement are dependent upon the staffing situation in your department and your own performance as a teacher, growth in scholarship and contributions to the College community.

The enclosed statement “General Conditions of Full-time Appointment to the Faculty of Lafayette College,” dated February 6, 1976, is hereby made a part of this letter and by your acceptance of the appointment becomes part of the agreement between you and the College.

R.R. 64a.

George G. Sause, Provost, signed the letter on behalf of the College. Appellant accepted the College’s offer, signifying his acceptance by signing the letter. The “General Conditions” thus made part of appellant’s contract of employment state in part: Statements on factors such as academic freedom, promotion, tenure, retirement, tuition support for the children of the Faculty, etc., are to be found in the Faculty Handbook.” R.R. 66a. The pertinent provisions of the faculty handbook are as follows:

3.32 Evaluation Procedures

3.321 Each nontenured Faculty member is evaluated once a year by his/her Department Head who sends a report of the evaluation to the Provost for the use of the President, the Provost, and the Faculty Committee on Appointments, Promotions and Dismissals.

3.323 Faculty members are evaluated according to teaching records, professional growth, and service to the College. Evidence of professional growth is normally in the form of, but is not restricted to, books and published articles, papers read at professional meetings, patents granted, and offices held in professional societies.

R.R. 428a.

*91 3.355 A Faculty member who is not reappointed at the end of a stated period, not promoted to tenure status by the expiration of the provisional period, or not promoted to a higher rank after his/her status has been considered by the Appointments, Promotions and Dismissals Committee and who feels there should be review of the matter may take the following steps:

3.3551 The individual may consult with the Provost about the reasons and such factors as may be helpful in furthering his/her career.

3.3552 If the Faculty member after discussion with the Provost feels the decision was made without all available data, he/she may request reconsideration by the Provost and the Appointments, Promotions and Dismissals Committee. The use of such procedure does not preclude the use of the appeal process described in paragraph 3.3553.

3.3553 If the Faculty member feels the judgment is improper on scholarly grounds or unjust for other reasons, appeal may be made to the President. The President will establish an advisory committee of three peers who are of Assistant Professor or higher rank and have had at least two years’ service with the College. One member of the committee will be chosen by the Provost, one by the Faculty member, and these two members will select a third member. The committee will review all aspects of the case. It will have access to all the materials that would be available to the Appointments, Promotions and Dismissals Committee, and it may seek the advice of outside consultants. The committee will report its findings to the President who will take such action as he deems appropriate to arrive at a just outcome.

3.3554 If the Faculty member does not accept the decision resulting from the review (3,3553), he/she may appeal to the Board of Trustees by submitting a written appeal to the Secretary of that body.

*92 3.3555 In no case will the appeal process be a cause for extending the term of appointment beyond the established expiration date.

R.R. 433a-34a.

On November 22, 1977, the College’s Appointments, Promotions and Dismissals Committee voted not to reappoint appellant for the academic year 1978-1979. R.R. 376a. On December 13,1977, Provost Sause informed appellant of the committee’s decision. According to appellant, Sause explained that his contract was not renewed for economic reasons. R.R. 237a. Sause, however, stated in his deposition that while he mentioned economic reasons in his meeting with appellant, the principal reason for not renewing the contract was that “[appellant] didn’t meet what we were looking for for long-term people.” Sause Dep. at 20. In addition, Sause said, he was aware that appellant and the head of the Art Department, Professor Joseph Gluhman, did not get along: “I also thought ... that even [sic; given?] the relationship that existed between the two people [it] just wasn’t wise to have them both in the same department[;] even the same building.” Id. at 19.

Prior to the determination that appellant’s contract would not be renewed, Professor Gluhman had prepared two evaluations, dated July 15, 1977, and October 31, 1977, of appellant’s performance. R.R. 48a-58a. Appellant was not shown the evaluations, Sause Dep. at 21, which are lengthy and very negative.

In the July 15, 1977, evaluation, in commenting on one of the five courses that appellant taught, Professor Gluhman states: “The approach throughout was unsystematic and unimaginative. The pace was leisurely. Expectations were undefined____ The grading system for the course was confusing and arbitrary to the point of eccentricity. Mr. Baker habitually absented himself from the class for long periods of time.” The evaluation further states that appellant “managed [an independent study course] in an irresponsible fashion” and “misunderst[ood] the nature and the seriousness of this advanced instructional option.” It also *93 states that appellant’s grading system had been too lenient, since he gave “A”s to 35 of 53 students; that appellant appropriated a classroom to use as an office when he had been assigned an office; and that he played loud music and permitted students to drink beer during class. R.R. 48a-52a. Finally, the evaluation states:

Mr. Baker ended the year with a flurry of incidents whose climax was a bizarre episode that involved the just retired former head of the Department of Art and Music____ Mr. Baker was instrumental in creating this episode, and during its course reportedly indulged in slander, character defamation, and criminal allegations directed against the present head of the Art Department. These included accusations so absurd and demonstrably untrue that they would seem pathetic were they not so calculated and vicious.

R.R. 52a-53a.

In the October 31, 1977, evaluation Professor Gluhman described appellant as resentful, indecisive, overly concerned with winning students’ approval, and lacking in “personal commitment or performance as a teacher.” R.R. 54a-57a. In recommending that appellant not be rehired Gluhman stated:

[Tjhere are clear indications that Mr. Baker’s attitudes and methods can lead only to a regression to former conditions in the Art Department. That is, to the beliefs that one need not produce genuinely good results, but only proclaim mediocre or poor work to be good, that the favor of students should be cultivated through low standards and easy grades, that self-interest should take precedence over the demands of a discipline or the best interests of the College, that providing students with happy experiences, informal entertainment and indoctrination in “life styles” should be substituted for proper instruction.

R.R. 54a-55a.

On December 30, 1977, about one week after appellant had been told that he would not be rehired, Professor *94 Gluhman engaged David Pease, Acting Dean of Tyler School of Art of Temple University, to “discuss the performance of a member of the studio faculty [appellant] and to review the decision concerning his termination.” Pease wrote a letter to Provost Sause, dated January 19, 1978, stating his findings. He explained that he had not interviewed appellant but that “[appellant’s attitude, as reported by Professor Gluhman, would seem to be almost cavalier in his dealings with the students, i.e., no regular office hours, no outside assignments, a general attitude that the best way to build a program is by giving high grades.” R.R. 60a-61a. Appellant was not shown the Pease evaluation. Sause Dep. at 29.

On February 16, 1978, Professor Gluhman wrote a letter to Provost Sause complaining of the “extraordinary, peculiar, and academically deplorable arrangement” of appellant’s wife’s “habitualM” presence in appellant’s classes. R.R. 59a.

In his deposition appellant specifically denied the truth of certain statements contained in Professor Gluhman’s evaluations of him, for example, that he had given as many “A”s as Gluhman claimed he had, Baker Dep. at 32; that he refused to use his office and had appropriated a studio instead, id. 34; that he had permitted loud music and drinking in his classes, id. 36; and that he had slandered Gluhman, id. 37. Also in his deposition appellant speculated on the reason for Gluhman’s negative evaluations. In May 1977, R.R. 239a, appellant had been asked to meet with the President of the College, K. Roald Bergethon, Provost Sause, and Assistant Provost David Crockett, to discuss Gluhman’s behavior. They asked appellant about “Dr. Gluhman’s opening private mail of faculty members[;] ... breaking up of material; Dr. Gluhman’s behavior with specific students.” Baker Dep. at 49. Appellant said in his deposition that he had been assured that any statements he made would be kept confidential, but he believed that one of the administrators had broken this promise of confidence, *95 for it was only after the meeting that his relationship with Gluhman began to deteriorate. Id. at 50. 1

When Provost Sause was asked on his deposition about Professor Gluhman’s evaluation of appellant, he stated that he had made no effort to verify statements in the evaluation, but that he took the statement Gluhman had made in the first evaluation to the effect that appellant had “indulge[d] in slander, character defamation, and criminal allegations with a grain of salt, frankly.” Id. at 13-15. Sause further stated, however, that he thought that the evaluation was “fair in terms of the conclusion reached [and he] agree[d] with the recommendation [of non-renewal].” Id. at 18.

On March 21, 1978, Professor Gluhman was informed that he had not been granted tenure, and on May 2,1978, he resigned from the College. Apparently in connection with the decision on Gluhman’s tenure, Provost Sause engaged William Loerke of Dumbarton Oaks to conduct an evaluation of “1. Dr. Gluhman’s competence in his field; 2. the judgment he exercises regarding performance of teachers of studio and art history; 3. the adequacy of the program he has developed.” R.R. 213a. In a lengthy report dated March 23, 1978, Loerke stated his conclusion that “[Gluhman’s judgment of the younger faculty is defective, and must be so, granted the serious failure of communication between himself and them.” Id.

Immediately upon Professor Gluhman’s resignation from the College, appellant, by letter dated May 2, 1978, to the President, requested that the appeal procedure provided in the faculty handbook be implemented. In his letter, appel *96 lant stated: “I believe that the Appointments, Promotions and Dismissals Committee was not informed of all the pertinent facts when my contract was before them for consideration. It is my intention to be certain that certain facts, incidents, confidential conversations and other important data now be presented.” R.R. 379a. By letter dated May 5, 1978, the President replied to appellant that an advisory committee would be appointed pursuant to Section 3.355 of the faculty handbook.

The advisory committee appointed by the President was composed of Thomas W. Norton, Assistant Professor of Sociology, Thomas G. Miller, Professor of Chemistry, and Maressa Fanelli, Associate Professor of Languages. The committee met in May 1978 and reviewed appellant’s file. The file included the Gluhman evaluations of appellant, the Pease evaluation, and also a memorandum dated May 18, 1978, prepared by appellant at Provost Sause’s request. The memorandum stated that before initiating his appeal, appellant told Sause that he believed that “all of the events of the previous Spring were not presented to the [Appointments, Promotions, and Dismissals] Committee,” R.R. 243a, and it chronicled the history of the difficulties between appellant and Professor Gluhman. The committee’s view of the Gluhman evaluations was as follows:

Professor Norton:

As I read the evaluation of Professor Baker by Professor Gluhman, I felt that Professor Gluhman was not capable of giving a fair and adequate evaluation; and I say that based on the specific points that he raised in his letters of evaluation of Professor Baker, the language of the letters, the innuendo and other indications.

It was my judgment that given the language of the evaluations and the matters that he brought out that the [Gluhman] evaluations were not fair evaluations.

Norton Dep. at 15, 22-23.

Professor Miller:

*97 I have a page of notes that’s pretty extensive, if I can find it. Here, I commented on Gluhman’s evaluation of Baker, that there was a great emphasis on personal things, such as lifestyle and currying favor with students, complaining, Baker’s need — or Gluhman stated that Baker had need for constant student approval.

I drew from the tone of these that Gluhman was not capable of making an accurate and unbiased evaluation of Baker on matters such as these.

In Gluhman’s evaluation of Baker there are also statements of facts which I thought should be investigated and confirmed or denied that are not matters of opinion or personality, such as comments as to Baker’s grading standards, his absence from the first day of classes without notice or permission, his uncooperativeness about budgetary matters, the fact that he spent little time around the department, and missed department meetings, that he absented himself from classes for long periods, studio classes, that he served beer in class, that he helped finish and execute work displayed as students’ work, that he failed to maintain office hours, and a couple of other things like that.

I didn’t form any opinion about the truth or falsity of any of those statements, but I thought they were worth considering.

Miller Dep. at 34-35.

Professor Fanelli “didn’t think that the material presented [to the Appointments, Promotions and Dismissals Committee] was valid,” Fanelli Dep. at 48, and that “the evaluation, such as it was, was invalid,” id. at 46. .

Further with regard to Professor Gluhman’s evaluation of appellant, Professor Miller stated that the committee did not view its role as one of factfinding but rather of determining whether the process had been fair. Id. at 37. Accordingly, the committee did not try to determine whether appellant’s or Gluhman’s version of certain incidents about which their accounts differed was correct.

*98 With regard to the Pease evaluation, the committee saw no point to it, ordered as it was, following notice to appellant that he would not be rehired. Thus, Professor Norton stated:

[I]t seemed to me that it was a post facto evaluation of Baker’s work, after he had already been formally told that his contract would not be renewed.

That raised in my mind: what was the need for the evaluation of Baker?

Secondly, I was very much bothered by the procedural aspects of the evaluation, more particularly, the fact that, according to the records, Baker’s representative work on the part of his students was not evaluated, that Baker was not informed of the evaluation, and that comments about Baker were made by Professor Gluhman. Professor Pease indicates that he did not meet Baker on that occasion.

In short, I thought that the evaluation was flawed. Norton Dep. at 13-14

And Professor Miller stated:

Well, I had further ... comments on the Pease evaluation. I had the same lack of confidence in that as the other members of the committee.

It seemed to me that that evaluation was almost a clandestine evaluation that was orchestrated by Gluhman, and the outcome of it was more or less predetermined, and I was struck in that evaluation by the repetition of certain words and phrases that appeared in Gluhman’s evaluations earlier.

Miller Dep. at 35-36.

The record is clear that it was the judgment of the advisory committee that appellant had been unfairly treated. Thus, in his deposition Professor Norton repeated the recommendations he had made by letter dated June 5, 1978, to the President, in which he said: “I wish to reaffirm my opinion that Professor Mel Baker of the Art Department was inadequately and unfairly evaluated in the decision involving the non-renewal of his contract.” See Norton *99 Dep. at 26; R.R. at 389a. And Professor Fanelli reported to the President that she “felt the evaluation, such as it was, was invalid.” Fanelli Dep. at 46. In addition, Norton stated that he had recommended — and he believed that “at least one, if not two other members of the committee” had also recommended — an evaluation by an outside consultant, “because [he] thought that the work of [appellant’s] students was improperly evaluated by the Pease evaluation.” Norton Dep. at 31. The faculty handbook provides that the Appointments, Promotions and Dismissals Committee “may seek the advice of outside consultants.” Faculty Handbook, ¶ 3.3553, supra. The President, however, “thought that that was [not] necessary — to do that.” Norton Dep. at 32.

On June 7, 1978, the Appointments, Promotions and Dismissals Committee met and discussed “the issues raised in [appellant’s] appeal.” R.R. 392a. Minutes of the meeting state:

The President said the advisory committee had concluded that certain aspects of the evaluation process used by the A, P & D Committee should be further reviewed. The President, the Provost, and the Chairman of the A, P & D Committee had agreed that the A, P & D Committee should have an opportunity to read new material presented by [appellant] in a May 18, 1978 memorandum and should be encouraged also to review the letters about [him] composed by Professor Gluhman at the time of the initial appointment (spring 1976) and the evaluation letters submitted in the summer and the fall of 1977.

The committee then voted five to three against recommending appellant’s reappointment. Thereafter, the committee unanimously agreed to support the President in any action he took regarding appellant’s case. R.R. 392a.

On June 28, 1978, the President wrote to appellant, “responding] formally to [appellant’s] appeal letter____” The President’s letter states in part:

[B]ecause of observations made by members of the Advisory Committee, I again reviewed your case with the Committee on Appointments, Promotions, and Dismissals. *100 I have personally made an intensive study of all materials relevant to your appeal.

All who have reviewed the various documents have agreed that the evaluation____by Dean Pease of Temple University was methodologically flawed. Therefore, the report will no longer be associated with your personnel records and will be regarded as having no relevance whatsoever to your work at this institution. It must be noted ... that this report was not part of the matter available to and considered by the A, P & D Committee in reaching the conclusion that you have been appealing....[ 2 ]

Serious consideration was given by the Advisory Committee and all others to the statements in your memorandum of May 18 to Provost Sause intended to demonstrate that any report by Dr. Gluhman “directed against me (particularly those dated after May 13, 1977) would be prejudicial in nature and should be highly suspect for evaluative purposes.” Your statements must surely have raised some doubts in respect to opinions expressed by the head of your department. However, if your statements are to be taken at face value, fairness would clearly require opportunity for Dr. Gluhman to make comment and perhaps rebuttal.

The letter goes on to point out certain “conflicting interpretations,” including discrepancies between appellant’s version of certain facts and the President’s, and continues:

What you have added to the file as part of the appeal process may, as intended, raise questions about Dr. Gluhman’s judgment. The things you report, even if there were no questions of interpretation, do not in themselves or in toto demonstrate that his professional judgment is without validity. Nor does what you have presented add to information about your own performance as a teacher and scholar. The statements you have presented in your *101 behalf also do not alter the institutional circumstances to which the College has responded both in the decision on your further appointment and in defining the personnel level and disciplinary orientation of the department for the period immediately ahead....

I believe I have examined all relevant data available, and I believe I have considered the viewpoints and the factors that are pertinent to your appeal. Having done so, I do not find reason that would justify rejecting and reversing the conclusion of the Committee on Appointment, Promotions and Dismissals in regard to your appointment....

R.R. 398-99a.

On July 3, 1978, appellant appealed to the Board of Trustees, pursuant to Section 3.3554 of the faculty handbook, supra. See R.R. 401a. The trustees delegated responsibility to consider the appeal to a committee composed of five members of the board. On October 21, 1978, the committee’s report recommending that appellant’s appeal be denied, was submitted to the board. The board apparently adopted the report the same day.

After summarizing the history of the case, the committee’s report to the board stated that on August 1, 1978, the committee met with the Provost, the President, and appellant. (Appellant, it should be noted, still had not seen the Gluhman and Pease evaluations. Sause Dep. at 39.) According to the report, the committee then “considered the material before it [and] evaluated answers to the questions which it had posed during the day____ Id. at 140a. The report continued by stating that “[t]he Committee has viewed its function as one of review and to insure that there has been substantive and procedural due process afforded the appellant Baker, that there has been compliance with the applicable rules of the College and that there was substantial evidence upon which the College could have based its decision.” R.R. 140a. Following this, the report recited that the committee had made certain “Findings of Fact,” among them the following:

*102 2. Baker understood and appreciated that his contract was for a specific period of time and would terminate unless renewed at the close of the academic year 1977-78.

3. Sometime toward the close of the academic year, 1976-77, in May, 1977, Baker said it became apparent to him that there were personality differences with his Department Head. The nature and extent of these differences are not relevant to this committee’s determination except to state that Baker was under the impression that he was not looked upon favorably by his Department Head.

4. The Department Head did not give Baker a positive recommendation when the same was requested on October 31, 1977. At about the same time, the College budget was being prepared; and, while budget and fiscal consideration^] apparently did not enter into the determination not to renew Baker’s contract at this time, the Provost was in the process of preparing the budget.

5. The Committee on Appointments, Promotions and Dismissals, made its determination upon the lack of a positive recommendation by the Department Head and recommended non-renewal of Baker’s contract.

13. The advisory committee consulted with the President and urged another study or independent evaluation of Baker, with the manner of evaluation, to be to judge the quality of teaching by the Art exhibit or the quality of the students[’] work. This recommendation was not acceptable to the President and he declined to have a further evaluation.

16. At no time has Baker been impugned, nor have his professional status or qualifications been an issue.

17. Baker was given notice of [and] an opportunity to be heard. His counsel was aware of this opportunity and declined to request opportunity to be heard. Baker was thoughtful in his responses to this committee and the *103 committee has noted that he had presented himself and his position in a most professional manner.

18. The committee, after considerable discussion, has determined not to review Baker’s personnel file, or the evaluations contained therein, and has declined to consider any of the comments or incidents which were raised by Baker in his memoranda regarding his relationship with the Department Head. Taking all of Baker’s memoranda submitted for purposes of this appeal and his testimony on August 1, 1978, the committee finds no infringement of free speech, no injury to Baker’s personal integrity and no stigma which would preclude Baker’s future employment. We further find that there has been previous adequate consideration of all points raised by Baker on his appeal.

R.R. 140-44a.

After stating its findings of fact, the committee made “Conclusions.” In the course of doing so, the committee further commented on how it regarded its responsibility:

From a standpoint of college administration and administration of any business, for that matter, the immediate superiors’ conclusions are normally entitled to great weight. The committee feels, as the AP & D Committee must have felt, that it is not the province of this committee to supplant the judgment of a Department Head, unless it is alleged that there were illegal or unconstitutional reasons given by the Department Head in his recommendation. There is no such charge nor suggestion in this case. For example, if it were alleged that the Department Head had discriminated against the individual on the basis of one of the constitutional guarantees, e.g., sex, race, religion, country of national origin, age, or deprivation of a property right, then greater inquiry would have to be made. Here it is only suggested that the Department Head and the individual professor did not work well together. Since it is the responsibility of a Department Head to administer his department, and it is unlikely that the recommendation of an immediate superior or Department Head will be disregarded, the AP & D *104 Committee apparently accepted such recommendation and recommended the non-renewal.

R.R. 145a.

In both the President’s letter to appellant, dated June 28, 1978, and the trustees’ committee’s report to the board, the concern is expressed that appellant did not commence his appeal until some four months from the time he was notified that he would not be reappointed. The record makes clear, however, that appellant did not wish to remain in the Art Department if Professor Gluhman remained, and that he decided to appeal only after it became known that tenure had not been granted to Gluhman. Also, the faculty handbook contains no provision regarding the time for taking an appeal.

When his contract was not renewed, appellant applied for but was denied a position at Temple University. Baker Dep. at 51-52. Appellant stated that the contents of his personnel file, including the Gluhman evaluations, had been communicated in connection with that application. Appellant also stated that while he did not know, he suspected that the contents of the file had been communicated to others. Id. at 52. From the time he left the College, in August 1978, until September 1980 appellant was unemployed. In September 1980 he became a visiting artist at Brandéis University, and at the time of his deposition he held that position. Id. at 6, 11-12.

The Defamation Action

The issues presented by appellant’s action for defamation are (a) whether the statements about him, in particular, Professor Gluhman’s evaluations, were defamatory; (b) if they were, whether their publication was either absolutely or qualifiedly privileged; and (c) if their publication was qualifiedly privileged, whether a jury could find that the College abused the privilege.

A

Whether a statement is defamatory is for the court. Beckman v. Dunn, 276 Pa.Super. 527, 534 , 419 A.2d 583, 586 (1980). The test the court must apply is settled:

*105 A libel is “a maliciously written or printed publication which tends to blacken a person’s reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession.” Corabi v. Curtis Publishing Co., 441 Pa. 482, 441 , 273 A.2d 899, 904 (1971); Volomino v. Messenger Publishing Co., 410 Pa. 611, 613 , 189 A.2d 873, 874-75 (1963). A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating or dealing with him, Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314 , 182 A.2d 751 (1962), and necessarily involves the idea of disgrace. Vitteck v. Washington Broadcasting Co., 256 Pa.Super. 427 , 389 A.2d 1197 (1978). “ ‘The test is the effect the [statement] 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.’ ” Corabi v. Curtis Publishing Co., supra 441 Pa. at 447, 273 A.2d at 907 , quoting, Boyer v. Pitt Publishing Co., 324 Pa. 154, 157 , 188 A. 203, 204 (1936).

Id., 276 Pa.Superior Ct. at 533-34, 419 A.2d at 586 .

By this test, Professor Gluhman’s evaluations of appellant were without doubt defamatory, for they attacked appellant in virtually every aspect of his profession: his classroom presentation (“unsystematic and unimaginative”; “absented himself from the class for long periods”); his grading (“confusing and arbitrary to the point of eccentricity”); his supervision of advanced work (“irresponsible”; “misunderstood the nature and seriousness of this advanced instructional option”); and his professional relations (“accusations [against the head of the Art Department] so absurd and demonstrably untrue that they would seem pathetic were they not so calculated and vicious”). Such statements necessarily “tend[ed] to blacken” appellant’s reputation, “injure[d] him in his ... profession,” “lower[ed] him in the *106 estimate of the community,” and “deter[red] third persons from assisting or dealing with him.” 3

For the same reasons that the Gluhman evaluations were defamatory, so too was the Pease evaluation. In one sense, indeed, the Pease evaluation was more aggravated than the Gluhman evaluations. Since its author, an Acting Dean of another institution, was reporting to Provost Sause as an outside consultant, a degree of impartiality was to be expected; and yet in substance the Gluhman evaluations were accepted, and many of them summarized, without any discussion with appellant. 4 A jury might find that appellant’s reputation was more grievously harmed by the purportedly impartial evaluation of an outside consultant than by the Gluhman evaluations. The College, it may be added, was evidently of the same opinion, for as noted, the President wrote appellant that it had been concluded that the Pease evaluation should “no longer be associated with your personnel records” and that it had not been included in the material transmitted to the Appointments, Promotions and Dismissals Committee for its consideration.

*107 B

With the conclusion that the Gluhman and Pease evaluations were defamatory, it becomes necessary to determine whether their publication was privileged. The majority holds that the Gluhman evaluations were absolutely privileged because, it says, appellant “consented to [their] publication.” Maj. op. at 74. This conclusion, I submit, is contrary both to the facts stated in appellant’s complaint and in his reply to new matter, and to settled law. 5 In my view, the trial court erred in sustaining the College’s preliminary objections to the Gluhman evaluations because, accepting as true “all material facts set forth in the complaint,” and in appellant's reply to new matter in which he denied that the Gluhman evaluations were absolutely privileged, “the law [does not ] say[] with certainty that no recovery is possible.” Mahoney v. Furches, supra. My reasons for so concluding shall become apparent shortly. Since the trial court erred in sustaining the preliminary objections, however, and since therefore the Gluhman evaluations should have been considered by the court on the College’s motion for summary judgment, I shall consider the Gluhman evaluations with the Pease evaluation, as on motion for summary judgment.

The various absolute privileges that may be asserted in defending against an action for defamation “are based upon policy that treats the ends to be gained by permitting defamatory statements as outweighing the harm that may be done to the reputation.” Restatement (Second) of Torts § 584, Title B (1958).

These “absolute 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. *108 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 misconduct 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.

Id.

See also Prosser and Keeton, Torts 815 (5th ed. 1984) (“[the absolute privilege] rests upon the ... idea that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection, even at the expense of uncompensated harm to the plaintiffs reputation.”). Thus, absolute privileges have been created for statements made in legislative proceedings, see, e.g., Jennings v. Cronin, 256 Pa.Super. 398 , 389 A.2d 1183 (1978), and judicial proceedings, see, e.g., Binder v. Triangle Publications, Inc., 442 Pa. 319 , 275 A.2d 53 (1971).

With regard to cases in which the person defamed has consented to publication of the statement, the Restatement provides:

Except as stated in § 584,[ 6 ] the consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation.

Restatement (Second) of Torts supra § 583.

It is apparent that for Section 583 to be applicable — i.e., before “the consent of another to the publication” may be found — it must appear that the person alleged to have *109 consented knew that the material to be published might be defamatory. As the Restatement comment puts the point: “It is not necessary that the other know that the matter to the publication of which he consents is defamatory in character. It is enough that he knows the exact language of the publication or that he has reason to know that it may be defamatory.” Restatement (Second) of Torts § 583, comment d. Here, as noted above in stating the facts, appellant, when he initiated his appeal, had not been shown the Gluhman and Pease evaluations, and indeed was not shown them even when he further appealed the President’s decision to the board of trustees. Assuming — and the record is unclear on this — that appellant even knew of the existence of the evaluations when he initiated his appeal, 7 nothing in the record supports a finding that he had reason to know they might be defamatory. Especially is this so when it is borne in mind that this case arises on appeal from a summary judgment, so that we “must examine the record in the light most favorable” to appellant. Taylor v. Tukanowicz, supra. 8

*110 In addition to these reasons, there is yet another reason why Section 583 is inapplicable. As comment d points out, “[O]ne who agrees to submit his conduct to investigation knowing that its results will be published, consents to the publication of the honest findings of the investigators.” Restatement (Second) of Torts § 585, comment d (emphasis added). The essence of appellant’s claim is that the Gluhman [and Pease] evaluations, did not represent honest findings, and a great deal in the record supports that claim. The College itself acknowledged that the Pease evaluation was “methodologically flawed” and withdrew it from appellant’s file. As for the Gluhman evaluations: The College manifested its doubts about Professor Gluhman’s reliability by having appellant meet with the President, Provost, and Assistant Provost, to discuss Gluhman’s behavior; the College psychiatrist was asked to speak with appellant regarding Gluhman’s emotional stability (“whether Gluhman was really letting his temper carry him away and whether he should cool off, calm down”); Provost Sause engaged William Loerke specifically to evaluate Gluhman, including his “competence in his field” and “the judgment he exercises regarding performance of teachers of studio and art history [which would include appellant]”; Sause himself took some of the statements in the Gluhman evaluations “with a grain of salt, frankly”; and Gluhman was not granted tenure. Again, it must be emphasized that the case arises on appeal from a summary judgment. Perhaps at a trial a jury would find that the evaluations were honest. The issue at this point, however, is only whether, after examining the record “in the light most favorable” to appellant, and after resolving all doubts in appellant’s favor, we can say that “there is no genuine issue” as to whether the evaluations were honest. Taylor v. Tukanowicz, supra. The majority, however, not only fails to acknowledge that this is the standard we must apply, it “declines to apply,” Maj. op. at 74, comment d’s provision that while one may consent to publication of an evaluation of his conduct, the consent is “to the *111 publication of the honest findings of the investigators.” The only reason the majority gives for “declining] to apply” comment d is that it is “inconsistent” with Section 583. Maj. op. at 74. I do not understand this. I find no inconsistency. The comment simply recognizes that there are two situations in which one may consent to publication of a defamatory statement: One, where one knows that a statement exists, and one has “reason to know that it may be defamatory,” the other, where one does not know that- a statement exists but does know that in the course of an investigation of one’s conduct it may be made and published, in which case one’s consent to publication is consent only to publication of honest findings.

The case law on consent as a defense to defamation confirms this analysis. For the cases show that the basis, or rationale, of the principle that consent to publication of a defamatory statement will preclude recovery for defamation is that one may not, knowing or having reason to know that a statement is defamatory, at the same time consent to the publication and seek damages because of the publication.

This rationale was clearly stated by the Supreme Court of Oregon in Lee v. Paulsen, 273 Or. 103, 106 , 539 P.2d 1079, 1080-81 (1976):

Shinglemeyer v. Wright, 124 Mich. 230 , 82 N.W. 887, 890 (1900), illustrates this rationale. In a private conversation between the parties the defendant charged the plaintiff with stealing his wheel. Plaintiff called a policeman. When he came she told him that the defendant had accused her of stealing his wheel and, in effect, asked him to hear the defendant’s version. Defendant told the officer that the plaintiff had stolen his wheel. Plaintiff brought a slander action based upon the defendant’s statement to the officer.

The court held for defendant, stating:

“In regard to the statement by defendant in the presence of the officer Henry, it was not a publication for which the law gives a remedy. She herself solicited *112 the statement, and sent for the officer for the express purpose of having the defendant repeat the statement in his presence. It would not have been stated to him except by her invitation.” Shinglemeyer v. Wright, supra [82 N.W.], at p. 890, starting at 3.

The facts in Lee v. Paulsen, supra, were as follows. The plaintiff, a'teacher, requested a statement of the reasons for his dismissal from employment. At a public hearing on his dismissal, after the plaintiff had been furnished with the statement, the plaintiffs counsel requested that the statement be read, and it was that reading that served as the basis of the plaintiffs action for defamation. In holding the statement absolutely privileged, the Supreme Court of Oregon recognized that knowledge that the statement would be defamatory was “essential in order for the publication to be absolutely privileged.” Id. at 107 , 539 P.2d at 1081 . The court also stated why, given such knowledge by the plaintiff, publication was absolutely privileged:

The reason for the imposition of the privilege when the plaintiff consents or requests the publication “is based upon the unwillingness of the courts to let the plaintiff ‘lay the foundation of a lawsuit for his own pecuniary gain.’ ”

Id., 539 P.2d at 1080 (quoting Harper and James, The Law of Torts 400 (1956), and Richardson v. Gundy, 88 Kan. 47, 54 , 127 P. 533 536 (1912).

See also Mick v. American Dental Association, 49 N.J.Super. 262, 275 , 139 A.2d 570, 577 (1958) (“It is offensive to an elementary sense of justice that after securing defendant’s candid expression of plaintiff’s views ... [plaintiff] should be permitted to sue for the injury he thus invited.”).

Unlike the plaintiff in Lee v. Paulsen, supra, appellant knew neither the contents of the Gluhman and Pease evaluations nor that he would find statements in them defamatory. It may not be said of appellant, as it could be said of the plaintiff in Lee v. Paulsen, that he requested publication of the evaluations, knowing they were defamatory, to lay the foundation of a lawsuit against the College. This is *113 therefore not a case like Lee v. Paulsen, in which the absolute privilege of consent was applicable. Neither is this a case in which “the ends to be gained by permitting defamatory statements ... outweigh[ ] the harm that may be done to the reputation.” Restatement (Second) of Torts, supra § 584, Title B.

The majority relies upon DeLuca v. Reader, 227 Pa.Super. 392 , 323 A.2d 309 (1974), as support for its conclusion that by consenting to be evaluated, appellant consented to be defamed. DeLuca is not in point, as examination of its facts will disclose. DeLuca’s employer informed him that “he was discharged because of his failure to turn in money collected and his failure to note the cash collection on the company’s receipt.” Id., 227 Pa.Superior Ct. at 396, 323 A.2d at 311 . The next day a manager of the employer wrote DeLuca a letter confirming the dismissal; DeLuca later alleged that this letter contained defamatory statements. Before suing his employer, DeLuca invoked the grievance procedures contained in the collective bargaining agreement of the union of which he was a member, and as a result, his job was reinstated. DeLuca then sued his employer for defamation. In holding that the employer’s letter was privileged, we said: “In express furtherance of this policy of private resolution of disputes between employers and employees and unions, the courts have held such remarks are absolutely privileged.” Id., 227 Pa.Superior Ct. at 399, 323 A.2d at 313 . Initially it should be noted, as the majority acknowledges, that the opinion may be read as applying the privilege solely to remarks made by an employer about a union member for the purpose of fostering private resolution of labor management disputes. The more important point, however, is that an examination of the opinion in DeLuca reveals that despite our use of the term “absolutely privileged,” we were applying a qualified privilege. Thus we observed that “[t]he letter forming the basis of the action was not unusually published having been sent to the appellee, a vice president of the union, the union business agent and the union shop steward, all persons *114 having an interest in this proceeding and in accordance with the written contract.” Id., 227 Pa.Superior Ct. at 397, 323 A.2d at 312 . See Restatement (Second) of Torts, supra § 596. If we were applying an absolute privilege, these facts would be without significance. Moreover, after concluding that the statements made in the letter were privileged, we went on to decide that there was no evidence of malice. As the majority acknowledges, consideration of malice is irrelevant when an absolute privilege is invoked. Maj. op. at 75 (“The existence of malice, recklessness or negligence does not defeat a privilege based on consent, because such a privilege is absolute.”). Finally, even if we had applied an absolute privilege in DeLuca, DeLuca is like Lee v. Paulsen, supra, for it was with knowledge of the contents of the alleged defamatory letter that DeLuca instituted action under the grievance procedures in his union contract. Here, appellant did not have knowledge of the contents of the alleged defamatory material at the time he exercised his right to appeal under the faculty handbook.

The cases that the majority has cited from other jurisdictions likewise do not support the majority’s position.

Ernst v. Indiana Bell Telephone Co., Ind.App., 475 N.E.2d 351 (1985), is like DeLuca v. Reader, supra. Ernst was involved in an accident in a company vehicle; his employer claimed that the accident occurred when Ernst was off duty. As a result of injuries sustained in the accident Ernst was unable to work, and for a year he was paid under a company benefit plan. When his employment was terminated, Ernst filed a grievance under the collective bargaining agreement to which he was subject, challenging his employer’s conclusion that his injuries had been sustained when he was off duty. The court concluded that the company’s statement of its version of the facts was absolutely privileged because when Ernst invoked the provisions of the collective bargaining agreement, he “consented to the publication of the company’s version of the matter.” Id. 475 N.E.2d at 355 . Thus, as in DeLuca v. Reader, supra, *115 but not as in this case, when Ernst filed his grievance, he knew what the company’s version was.

Royer v. Steinberg, 90 Cal.App.3d 490 , 153 Cal.Rptr. 499 (1979), and Johnson v. City of Buckner, 610 S.W.2d 406 (Mo.App.1980), are absolute privilege cases and also demonstrate the principle of Lee v. Paulsen, supra. In each, the plaintiff expressly invited the defamatory comments, with knowledge of their contents, and the court held the statement not to be actionable. In addition it should be noted that while Royer v. Steinberg is not in point, another case, decided by the same court but not cited by the majority, is in point. In Slaughter v. Friedman, 127 Cal.App.3d 704 , 179 Cal.Rptr. 722 (1982), patients of the plaintiff, a dentist, submitted claims to an insurance company. In response to some of the claims the company denied coverage and in its denial notices made statements concerning the plaintiff and his practice that he considered to be defamatory. In holding that the plaintiff had not consented to the publication of the statements, and that the statements were therefore not absolutely privileged, the court stated:

Defendants contend that the communications involved are not actionable because plaintiff had consented to the publication of the defamation, if any. Unlike Royer v. Steinberg (1979)[,] 90 Cal.App.3d 490 , 153 Cal.Rptr. 499 , on which defendants rely, the plaintiff here had not, himself published the communications herein involved. Plaintiff’s consent to have the claims evaluated by defendants did not extend to a consent to the making of the allegedly defamatory communications now before us.

179 Cal.Rptr. at 725. 9

Dominquez v. Babcock, Colo.App., 696 P.2d 338 (1984), cert. granted February 4, 1985, must be read as a qualified, *116 not an absolute, privilege case. The issue was whether, when an employee requested “accountability” for alleged defamatory statements made by other faculty members, the employee had consented to their subsequent publication. On motion for summary judgment, the trial court found consent. The court of appeals held that there was a question of fact as to whether the request for accountability amounted to consent. The court of appeals further held, however, that even if there had been no consent, still summary judgment was proper because “plaintiff failed to present any evidence which would sustain a factual finding that defendants had abused their qualified privilege.” Id. 696 P.2d at 342 .

Finally, the majority cites Gengler v. Phelps, 92 N.M. 465 , 589 P.2d 1056 (1978). There, plaintiff was given three months prior notice of the termination of employment as a nurse anesthetist at a hospital. During that period, in an application for employment at another hospital, the plaintiff stated that references could be sought from her present employer “any time.” In response to inquiries, her employer stated that the plaintiff lacked professional competence. The court held that the statement was absolutely privileged. It is not clear from the case report whether the plaintiff knew what kind of recommendation would be given but it does seem clear that the court’s holding was based on public policy: “In the business and professional world, public policy necessitates the disclosure of an employee’s prior services when inquiry is made with the consent of the employee.” Id. at 467 . 589 P.2d at 1058 . This generalization is at best imprecise and should not be taken literally, for to do so would obliterate the distinction between absolute privileges and qualified privileges: an employer may well have a privilege to make statements about an employee’s prior services, but this privilege, is not absolute; it is qualified, and as such, may be lost if abused.

C

Without doubt, the College did have a qualified (or, in the Restatemént’s term, a “conditional”) privilege to publish *117 defamatory evaluations of a member of its faculty: information regarding the competence of the faculty “affect[ed] a sufficiently important interest” of the College, and “the recipient’s knowledge of the defamatory matter [was] of service in the lawful protection” of that interest. Restatement (Second) of Torts § 594; and see Banas v. Matthews International Corp., 348 Pa.Super. 464 , 502 A.2d 637 (1985). The question to be decided, therefore, is whether the College abused its qualified privilege — more exactly, whether, viewing the record in the light most favorable to appellant, and resolving all doubts in appellant’s favor, there is a genuine issue as to whether the College abused its qualified privilege. One who has a qualified privilege abuses the privilege if he knows the matter published to be false, or acts in reckless disregard as to its truth or falsity, or is negligent with regard to the truth or falsity of the matter. Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304 , 485 A.2d 374 (1984), appeal pending — U.S. —, 105 S.Ct. 3496 , 87 L.Ed.2d 628 (1985); Banas v. Matthews International Corp., supra; Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163 , 484 A.2d 72 (1984). And see Restatement (Second) of Torts § 600 (conditional privilege abused if statement made with knowledge of falsity or with reckless disregard as to its truth.) Applying this test, I find that there is indeed a genuine issue as to whether the College abused its qualified privilege to publish the Gluhman and Pease evaluations of appellant’s conduct.

The most obvious instance that a jury might find constituted an abuse of privilege was the College’s publication of the Gluhman evaluations to Temple University, when after not being rehired by the College, appellant applied for a position at Temple. As already discussed, the record as it now stands includes ample evidence on the basis of which a jury could find that the College knew or should have known that the Gluhman evaluations were false, and that the College should therefore not have published their contents but should have removed them from appellant’s file, as it had removed the Pease evaluation. Of course, at a trial the *118 jury might find otherwise: given a fuller record, and with the benefit of observing the witnesses, the jury might find, for example, that contrary to appellant’s testimony on deposition, the Gluhman evaluations were not published to Temple, or, even if they were, that they were not false. This possibility, however, is of no relevance to disposition of this appeal, arising as it does from summary judgment.

Another, less obvious but by no means obscure, instance that a jury might find constituted an abuse of privilege was Provost Sause’s publication of the Gluhman and Pease evaluations to the Appointments, Promotions and Dismissals Committee. The jury might find that Sause knew that Professor Gluhman was emotionally unstable; that Sause further knew, or at least should have surmised, that Gluhman’s very negative evaluations of appellant were, or might be, motivated by Gluhman’s anger upon learning of appellant’s meeting with the President, Sause himself, and the Assistant Provost, at which Gluhman’s conduct was discussed; and finally, that Sause made no effort to verify the accuracy of the statements in the Gluhman evaluations, even though he took the allegations (one of the most serious) that appellant had “indulge[d] in slander, character defamation, and criminal allegations with a grain of salt, frankly.” On the basis of these findings the jury might further find that Sause either knew that the Gluhman evaluations were false, recklessly disregarded or was negligent as to whether they were true or false, and that therefore, in publishing them to the committee, he abused the College’s qualified privilege. The jury might make the same finding with respect to Sause’s publication to the committee of the Pease evaluation, since that evaluation not only accepted Professor Gluhman’s evaluation of appellant but did so without consulting appellant. The possibility that the jury might make these findings is, moreover, considerably enhanced by the fact that when, in response to appellant’s appeal, an advisory committee examined the Gluhman and Pease evaluation, it rejected them both out of hand. As discussed more fully in stating the facts, Profes *119 sors Norton and Miller concluded that Professor Gluhman “was not capable” of a fair evaluation of appellant. Professor Fanelli regarded the evaluations as “invalid”, and the Pease evaluation was dismissed as “flawed” (Norton), and “clandestine” and “more or less predetermined.” If, the jury might well ask, the advisory committee so regarded the Gluhman and Pease evaluations, how was it that Sause had considered them worthy of publication to the Appointments, Promotions and Dismissals Committee?

The order of the trial court should therefore be reversed and the case remanded for trial on the issues whether the Gluhman and Pease evaluations were published (as noted, whether they were defamatory is an issue for the court, not for the jury, and they were defamatory); and if they were published, whether they were true, or if not true, whether in publishing them the College abused its qualified privilege to publish them.

The Contract Action

Appellant argues that the College breached its contract of employment with him in two respects: first, because of verbal assurances given him at the time he was hired, his contract should have been renewed at the end of the two-year term; and second, because the College did not fulfil its obligation to make a fair evaluation of his performance as a member of the faculty. I agree with the majority that appellant’s contract was for a two-year term and that there is no merit to appellant’s argument that he was entitled to have it renewed. The majority states, however, that both of appellant’s “arguments fail [because] the College at no time assumed any contractual obligation beyond the two-year duration of his employment,” Maj. op. at 81. This statement betrays a failure to recognize that appellant’s second argument is fundamentally different from his first. It is undeniable, and the majority acknowledges, id. at 254 n. 2, that the faculty handbook was part of appellant’s contract of employment. What the majority’s statement fails to recognize is that the principal issue in this case — appellant characterizes it as “the true gist of [his] complaint,” *120 Brief for Appellant at 26 — is, not whether the College had the right to terminate appellant’s contract at the end of its two-year term, but whether during that term the College performed its obligation under the contract to make a fair evaluation of appellant. In my opinion, there is a genuine issue of fact as to whether the College did perform that obligation.

The majority’s reliance on Krasik v. Duquesne University, 293 Pa.Super. 165 , 437 A.2d 1257 (1981), demonstrates its misunderstanding. In Krasik , the appellant, the university's law librarian, sought to enjoin the university from terminating her employment at the end of its one-year term. The librarian relied on the fact that her contract had incorporated standards of the American Bar Association and the Association of American Law Schools; in her view, these standards required faculty approval before her employment could terminate, and although the President of the University had written her that her employment would terminate, the faculty had not approved the termination. We concluded, however, that appellant’s contract expired by its own terms, and that the standards on which appellant relied were only “vague advisory language” that did not “convert the agreement into a contract for permanent employment ... nor [did they] require faculty review prior to the expiration of the [one-year] term of the agreement.” Id., 293 Pa.Superior Ct. at 172, 437 A.2d at 1261 . While Krasik supports the majority’s dismissal of appellant’s first argument, that he had a right to continued employment after his contract expired, it is irrelevant to his second argument, that the College breached its obligation to make a fair evaluation of him.

In considering appellant’s second, and principal, argument, it should be noted at the outset that this case differs from many breach of employment contract cases based on an employee handbook. Aside from cases in which an at-will employee has sued for breach of a clause providing for dismissal for just cause only, see, e.g., Toussaint v. Blue Cross and Blue Shield of Michigan. 408 Mich. 579 , 292 *121 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983); Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284 , 491 A.2d 1257 (1985); Thompson v. St. Regis Paper Co., 102 Wash. 219 , 685 P.2d 1081 (1984); Weiner v. McGraw-Hill, Inc:, 57 N.Y.2d 458 , 443 N.E.2d 441 , 457 N.Y.S.2d 193 (1982), many such cases involve a dismissed employee’s rights to certain monetary benefits, such as severance pay or vacation pay, see, e.g., Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604 , 647 P.2d 1274 (1982); Langdon v. Saga Corporation, 569 P.2d 524 (Okla.App.1976). This case is more like cases in which it has been held that an action for breach of contract will lie because the employer did not honor handbook policy regarding demotions, Salimi v. Farmers Insurance Group, 684 P.2d 264, 265 (Colo.App.1984), or probationary employees, Yartzoff v. The Democrat-Herald Publishing Co., Inc., 281 Or. 651 , 576 P.2d 356 (1978), or grievance procedures, Carter v. Kaskaskia Community Action Agency, 24 Ill. App.3d 1056 , 322 N.E.2d 574 (1974). Appellant’s claim is that because of the negative evaluations that remain in his file, he has been unable to obtain favorable references in connection with his search for a position. If he were able to establish that these negative evaluations are in his file as a result of the College’s failure to perform its obligation to make a fair evaluation of him, he would be entitled to damages.

It should further be noted that this is not a case in which we are asked to read into an employment contract an obligation on the part of the employer to dismiss an employee only for good cause. Some courts have found such an obligation. See, e.g., Gates v. Life Insurance Co., 196 Mont. 178 , 638 P.2d 1063 (1982); Monge v. Beebe Rubber Co., 114 N.H. 130 , 316 A.2d 549 (1974), modified in Howard v. Dorr Wollen Co., 120 N.H. 295 , 414 A.2d 1273 (1980); Cleary v. American Airlines, Inc., 111 Cal.App.3d 487 , 168 Cal.Rptr. 722 (1980). Others have declined to do so. See, e.g., Parnar v. Americana Hotels, Inc., 65 Haw. 370 , 652 P.2d 625 (1982); Brockmeyer v. Dun & Bradstreet, 113 *122 Wis.2d 561 , 335 N.W.2d 834 (1983); Daniel v. Magma Copper Co., 127 Ariz. 320 , 620 P.2d 699 (Ct.App.1980). The distinction that must be borne in mind here has been well stated by the Connecticut Supreme Court in Magnan v. Anaconda Industries, Inc., 193 Conn. 558 , 479 A.2d 781 (1984). Said the court:

While we see no reason to exempt employment contracts from the implication of a covenant of good faith and fair dealing in the contractual relationship, we do not believe that this principle should be applied to transform a contract of employment terminable at the will of either party into one terminable only at the will of the employee or for just cause.

Id. at 568 , 479 A.2d at 787 .

While concluding that an employer is bound to exercise good faith in the performance of its obligations under an employment contract, the court “decline[d] the invitation of the plaintiff to transform the requirement of good faith into a condition that an employee may be dismissed only for good cause.” Id. at 571 , 479 A.2d at 788 .

These distinctions noted, it is in order to consider appellant’s claim that the College breached its obligation to make a fair evaluation of him.

If the College was under such an obligation, the obligation was not express but implied; for while the faculty handbook provides for evaluative procedures, it does not expressly state that these procedures must be fairly conducted. Under the Restatement, however, “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Restatement (Second) of Contracts, § 205 (1979) (emphasis added). See also 13 Pa.C.S. § 1203 (Commercial Code: “Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement.”) Comment a to section 205 of the Restatement provides that “[g]ood faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party----” And see *123 generally Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv.L.Rev. 369 (1980)

No Pennsylvania appellate case of which I am aware has explicitly held that the covenant of good faith and fair dealing is to be implied into every contract, although the courts of a majority of jurisdictions have so held. See Burton, supra at 369, 404 (Appendix). But see Atlantic Richfield Company v. Razumic, 480 Pa. 366 , 390 A.2d 736 (1978) (duty to terminate franchise agreement in good faith). Nevertheless, without using the terms “good faith” or “fair dealing,” it has been held that contracts are to be performed “with faithfulness to an agreed common purpose and consistency with the justified expectations of the other party.” Restatement (Second) of Contracts, § 205 comment a. For example, in Philadelphia v. Philadelphia Transportation Company, 345 Pa. 244 , 26 A.2d 909 (1942), it was said:

“[T]he contract itself must be read in the light of the circumstances under which it was made” and [] it is necessary to “consider the situation of the parties at that time, the necessities for which they naturally provided, and the advantages each probably sought to secure and the relation of the properties and rights in regard to which they negotiated.”

Id., 345 Pa. at 250 , 26 A.2d at 912 quoting Baseman v. Shell Union Oil Corp., 138 Pa.Super. 512, 516 , 10 A.2d 881, 883 (1939).

See also Pritchard v. Wick, 406 Pa. 598 , 178 A.2d 725 (1962). I therefore conclude that the College was under the obligation to make a fair evaluation of appellant’s performance as a member of its faculty during his two-year term of employment.

When the record is examined, as we must examine it, in the light most favorable to appellant, all doubts being resolved in appellant’s favor, it is evident that a genuine issue of fact exists as to whether the College did make a fair evaluation of appellant. Without repeating the facts *124 already stated in the opening portion of this opinion, some particularly significant facts may be noted.

To begin, the jury might find, as the faculty advisory committee unanimously found, that Professor Gluhman was unable to make a fair evaluation of appellant, and that the Pease evaluation, conducted as it was “clandestinely]” and without consultation with appellant, was at least equally unfair. This finding made, the jury would presumably inquire whether the conduct of the College following the Gluhman and Pease evaluations, in response to appellant’s appeal, was consistent with the College’s obligation to make a fair evaluation of appellant’s performance.

At least one member of the advisory committee, Professor Norton, recommended to the President that a new evaluation be conducted. In his letter to appellant reaffirming the decision not to rehire him, the President, while stating that he had made an extensive review of the file and that he would remove the Pease evaluation, made no mention, either of the advisory committee’s conclusion that the Gluhman and Pease evaluations had been unfair, or of the committee’s recommendation that another evaluation be conducted. Yet the President’s letter reveals that he too had doubts about the fairness of the Gluhman evaluations, for he said: “Your statements must surely have raised some doubts in respect to opinions expressed by the head of your department. However, if your statements are to be taken at face value, fairness would clearly require opportunity for Dr. Gluhman to make comment and perhaps rebuttal.” It will be recalled that at the time of the President’s letter to appellant, Professor Gluhman had left the College. Even so, if doubts remained about “opinions expressed” by Gluhman, fairness might better have been assured, or so a jury might find, not by opening old wounds by inviting rebuttal by Gluhman, but by engaging an outside consultant to review appellant’s performance anew, as Norton had recommended, and as was expressly provided for in the faculty handbook. Faculty Handbook, supra § 3.3553.

*125 Provost Sause’s deposition reinforces the conclusion that a jury might find that while the College had doubts, at the least, about the fairness of the Gluhman evaluations, it was not prepared to resolve them, choosing instead to leave the evaluations in appellant’s file. Certainly Sause did not resolve doubts about the evaluations; he, it will be recalled, made no effort to confirm any of the statements made in them. Nor did the President resolve the doubts, declining, without explanation, the recommendation to engage an outside consultant to make a new evaluation. Given the seriousness of the charges that Professor Gluhman had made, a jury might find that the College, in the exercise of its obligation to make a fair evaluation of appellant, was required to take some further action, either to confirm, qualify and explain, or remove the evaluations from appellant’s file. „

Finally, a jury might find that the conduct of the Board of Trustees provided further support for appellant’s position that he was not fairly evaluated. At the time of the trustee committee’s report to the board, the decision regarding Professor Gluhman’s tenure had been made and the Loerke report, which questioned Gluhman’s ability to supervise the members of his department, was in hand. Yet with that knowledge, the committee, while acknowledging that “[T]he Committee on Appointments, Promotions and Dismissals, made its determination [not to rehire appellant] upon the lack of a positive recommendation by the Department Head, [ie., Professor Gluhman]” stated: “The nature and extent of [the differences between Gluhman and appellant] are not relevant to this committee’s determination except to state that Baker was under the impression that he was not looked upon favorably by his department head.” It seems apparent, however, and a jury might find, that the differences between the two faculty members were indeed relevant, especially in view of the fact that on the basis of the Loerke report, the trustees had reason to question Gluhman’s judgment. In addition, it is clear from the trustee committee’s report that the committee considered the College’s obligation to appellant as limited to employment for the two- *126 year contract term, and its obligation on appeal as limited to inquiring, not whether appellant had been fairly evaluated, but only whether he had been afforded “due process.” How, a jury might ask, could the trustees say that appellant had been fairly treated, how could they find “no injury to [appellant’s] personal integrity,” R.R. 144a, and at the same time not even read the evaluations on the basis of which appellant had not been rehired, (much less manifesting any knowledge of the fact that a faculty committee had rejected the evaluations as unfair)? 10 Was so empty an “appeal” consistent with the College’s promise, implicit in its contract with appellant, that appellant’s performance as a member of the faculty would be fairly evaluated?

The majority states that “[T]he record admits of no conclusion other than that the College at all times acted in good faith toward [appellant],” and that it “complied fully with the evaluation and appeal provisions of the contract____” Maj. op. at 85 (footnote omitted). I submit that these statements are not only not supported by but are contrary to the record, and that they represent fact-finding by the majority inconsistent with our obligation to examine the record in the light most favorable to appellant, resolving all doubts in his favor. The record makes plain what making a fair evaluation of appellant might have entailed: permitting appellant to see the Gluhman evaluations so that he could respond to them; telling appellant that the Gluhman evaluations had been rejected by the faculty advisory committee as unfair, that they were therefore being removed from his file, and that his appeal would be decided without reference to them; appointing an outside evaluator, as recommended by Professor Norton and as provided by the faculty handbook. None of these actions, however, nor any equivalent action, was taken. Instead, the Appointments, Promotions, and Dismissals Committee recom *127 mended that appellant not be rehired on the basis of evaluations that the College knew or should have known were unfair; throughout the appeal process appellant was never shown the evaluations; and appellant was never informed, and the record does not suggest, that the decision to deny his appeal was on a basis independent of the evaluations.

The majority further states that “[a]s a matter of sound public policy an institution of higher learning should be free” to decide not to hire a “particular faculty member [who] does not mesh with the institution’s goals and philosophies, however excellent his work and distinguished his scholarship.” Id. at 87. No one could quarrel with this proposition. It is irrelevant, however, to our consideration here, limited as we are — or should be — to deciding whether a jury might find that the College did not honor its obligation to make a fair evaluation of appellant’s performance as a member of its faculty during his two-year term, and that as a result, appellant has suffered monetary loss.

Except as to Professor Gluhman’s memorandum regarding the presence of appellant’s wife in his classroom, the orders of the trial court should be reversed and the case remanded for proceedings consistent with this opinion.

SPAETH, President Judge, wrote this opinion before the expiration of his term on the court.

. As to whether there was such a breach of confidence, the record is incomplete. The President and Assistant Provost were not deposed. Provost Sause was deposed and denied having told Professor Gluhman what appellant had said about him, except "on one occasion where there was a conflict of reported fact.” Sause Dep. at 10. Sause also said, however, that Dr. Robert Stein, the College psychiatrist, was called to speak with appellant concerning Gluhman “to consider whether Gluhman was really letting his temper carry him away and whether he should cool off, calm down.” Id. at 9. Stein told Sause that in his opinion Gluhman needed counseling. Id. at 11.

. The Appointments, Promotions and Dismissals Committee recommended that appellant’s contract not be renewed on November 22, 1977. The Pease evaluation is dated January 19, 1978.

. Professor Gluhman’s memorandum regarding the presence of appellant's wife in the classroom does not satisfy this test; it therefore was not defamatory.

. The trial court states in its opinion that "Dean Pease made many favorable comments about [appellant], and admitted that he did not meet [appellant] before the evaluation.” Slip op. of tr. ct. at 7. An examination of the Pease evaluation does not support this characterization. In addition to the excerpts from the evaluation already quoted (regarding appellant’s "cavalier” attitude, office hours, and misuse of grades), the evaluation states that although appellant had been "brought in originally to develop the sculpture and three-dimensional design program,” he seemed to have no interest in that program, and that in the area that did interest him, "figurative modeling ... the results of his class, as shown in the examples provided for me, seem ordinary at best.” Dean Pease, further stated that while appellant "appear[ed]” to be "a reasonably active exhibiting artist ... I might speculate that he is more concerned about his own development as an artist than he is in meeting the wide range of needs presented by the students." Finally, Dean Pease stated that he "was very impressed with the dedication and seriousness which Professor Gluhman brings to his job," thereby further putting his imprimatur on Professor Gluhman’s evaluation of appellant. Nowhere in the evaluation is there any comment, much less "many comments,” "very favorable" to appellant.

. The majority holds that the Pease evaluation was not absolutely privileged, but since it concludes that that evaluation was not defamatory, it does not consider the question whether it was qualifiedly privileged. As discussed infra, in my view the Gluhman evaluations and the Pease evaluation were qualifiedly privileged.

. Section 584 is not applicable here; it provides:

An honest inquiry or investigation by the person defamed to ascertain the existence, source, content of meaning of a defamatory publication is not a defense to an action for its republication by the defamer.

Restatement (Second) of Torts, supra § 584.

. In his deposition Provost Sause stated that appellant had not seen the evaluations that were attached as exhibits to the complaint but that he had discussed them "just generally" with appellant. Sause Dep. at 21. Although the record is not specific as to exactly when appellant saw the evaluations, the inference is that he had not seen them at the time he initiated his appeal, for his May 18, 1978, memorandum to the Provost makes no mention of them. In fact, he states: “I have never been confronted by the administration or the head of my department [Professor Gluhman] as to any displeasure with my performance of my teaching, academic or scholarly activities. Just the opposite, I was told that I was doing well.” R.R. 243a (emphasis added). As late as August 1978, when he met with the trustees, appellant had not seen the evaluations. Sause Dep. at 36.

. It may also be noted that while "[a]bsolute privilege in a libel case may be raised by preliminary objections where defendant’s privilege appears on the face of the complaint, DeSantis v. Swigart, 296 Pa.Super. 283, 287 , 442 A.2d 770, 772 (1982), to sustain the College’s demurrer as to the Gluhman evaluations, the trial court was required to add to the facts contained in the complaint and to appellant’s denial, in reply to new matter, that a privilege applies to this case, the fact that when he was hired by the College, appellant knew or had reason to know that his future evaluations would be defamatory. Not only does no such fact appear in appellant’s pleadings, but examina *110 tion of the record on the motion for summary judgment strongly suggests that the contrary was the case.

. On further appeal, the California Supreme Court considered an issue not considered by the Court of Appeals, the application of Section 592A of the Restatement, which creates an absolute privilege for "[o]ne who is required by law to published defamatory matter....” Supreme Court held that that absolute privilege did not apply. Slaughter v. Friedman, 32 Cal.3d 149 , 649 P.2d 886 , 185 Cal.Rptr. 244 (1982).

. Although the trustee committee’s report states that the committee "has determined not to review [appellant’s] personnel file,” it also states that the committee "considered the material before it." It is not apparent how the committee could “consider[ ] the material" without "reviewing] [appellant’s] personnel file,” for presumably the file was part of the "material.”