*3 CAVANAUGH, HUDOCK, DEL JJ. Before SOLE SOLE, Judge. DEL $300,000
Ann Bargerstock, Appellee, was awarded *4 against Washington- punitive damages and compensatory (WGCAC) Action and John Community Corporation Greene Wilson, that and Appellants, after found WGCAC had her rights. Wilson defamed and had violated her civil raising five issues. reach appeal WGCAC and Wilson We the first three issues and and remand for a new reverse trial. manager as the
Bargerstock employed was of trans- WGCAC, of a non-profit organization section en- portation care, service activities gaged community including day the transportation elderly and of and head start centers low Bargerstock for the people. responsible receipt income was of monies deposit and collected from who received people from the transportation program. responsible She was also reports on the amount of received and monthly money Carolyn Ross deposited. Bargerstock’s secretary department. June, 1986, September, 1986, From no monthly reports by Bargerstock’s department were made to the fiscal office up WGCAC. fiscal office was made of John Patter- son, supervisor officer, fiscal and procurement and August Stash, fiscal officer. After the missing third report, Stash notified In August, 1986, Patterson. Patterson notified Wilson, WGCAC, executive director no money deposited had been transportation in the account for that month. Patterson also told Bargerstock Wilson that had told him that there were reports money and submitted for filing. Patterson continued to have problems getting reports Bargerstock’s department. Wilson told Pat- terson if persisted the problems he should contact James Ealy, operations manager Bargerstock’s supervisor.
After the four missing submitted, monthly reports were Wilson, Patterson and discovered that Ealy the records did conform Although deposit bank records. slips indicated account, had money deposited been into the money no had actually deposited. been The bank which held the WGCAC account the opinion slips Stash, forgeries. Ealy Wilson and met deter- mined the only people had access who money in the involved transactions were and Ross. alerted Wilson the president of the WGCAC board of the situation and was meetings decided that should be held with Bargerstock If and Ross no separately. one admitted *5 meetings then the matter would turned
guilt after the attorney. to the district over held meetings Bargerstock were and Ross with Separate 19, 1986. meetings Present at the were Joan on December WGCAC, Owens, executive director of and deputy Stash a union meeting present At steward was also Ross’ Ealy. Barger- a union member. Neither Ross nor since she was responsibility funds. The missing admitted stock handed over to district and both attorney was matter Ralph Eisiminger, an suspended pay. women were without department was Bargerstock’s told about the employee months Ealy. two Ross was rein- by Within suspensions Bargerstock had the focus of the become stated because investigation. against Bargerstock. were filed Soon charges
Criminal that, by police which after new evidence was discovered to her confession. suspicion toward Ross and led turned and against Bargerstock then she Charges dropped at her former rate of position to her former was returned Her lasted four and one-half months. suspension pay. time, this ran three small During newspaper local only at article about the situation WGCAC. stories an article Bargerstock’s name was about which mentioned defamation lawsuit. WGCAC, Bargerstock In complaint against her when WGCAC and Wilson that she was defamed alleged Bargerstock department police told members funds; of a missing told members “Pereinatal Task took told a PennDOT fund Bargerstock guilty; Force” that was because representative Bargerstock suspended was ing told various impropriety; employees of a work-related Ross guilty Bargerstock WGCAC reporters a formality; newspaper as told suspended only in connection suspended that two staff members were with rehired Ross while impropriety; fiscal suspended1. remained raised and Wilson has three
The first issue WGCAC deal the third part We will which asks the parts. question charged trial court properly whether *6 of an the defense affirmative We hold that it privilege. on did not. defamation, plaintiff
In an action the the has burden proving: of
(1) defamation; The defamatory character of the (2) publication by defendant; Its the (3) Its application plaintiff; the (4) The understanding the by recipient of its defamatory
meaning; (5) The understanding recipient the of by it as intended to applied plaintiff;
be the part appeal, question 1. As of their WGCACand Wilson this whether allegation by Bargerstock actually final atory. can be considered defam- is, rehiring Barger- That whether action of Ross defamed support against stock and can a claim WGCACand Wilson. We hold Actions, employee that it does not. for of action like an the dismissal of innocent theft, capable defamatory meaning are of and can sustain a cause they accompanied by Berg when are verbal communication. Freightways, Pa.Super. (1980). v. Consolidated 280 party by party Conduct directed at one another can also sustain a Norban, cause of action for defamation. Bennett v. Pa. 151 however, Pennsylvania, by A.2d 476 In a conduct defendant party support plaintiff’s directed at a third cause of action involved has never been held to a may difficulty for defamation. This of the because proving a connection between of the conduct the defen- party plaintiff. dant towards the third harm caused to the In case, present Bargerstock argues rehiring the defamed her. and that the union suspended. directly of Ross however, note, We a Ross was member of a union grievance against a filed WGCACafter Ross was grievance Ross’reinstatement after came was filed. (Notes 8/8/88, 206-207). Testimony, pp. Bargerstock was not a extenuating union member. This illustrates the circumstances in- by volved when we are asked to hold that conduct the defendant party actually defaming plaintiff. a Up directed towards third time, point Pennsylvania to has limited defamation actions to by party against communications and conduct directed one another party. We no see reason to extend this cause of action based on the present allegation against case. It is this final Wilson and support WGCAC does not which cause action. The rest of the allegations are deficient. resulting publi- from its plaintiff harm
(6) Special and, if applicable, cation conditionally privileged occasion. (7) Abuse 8343(a) 42 Pa. C.S.A. § the defense the communication may raise
A defendant prove is on the defendant to and the burden privileged was on which was character occasion “privileged 8343(b). 42 Pa. C.S.A. published.” § in her amended that she alleged complaint Bargerstock of remarks Wilson because defamed WGCAC police newspaper, attorney, the district to the local made and other associated officers, employees people various remarks made after allegedly These with WGCAC. meeting during which December board. by members of the WGCAC initially confronted an requested from the trial court and Wilson WGCAC on nature of those privileged instruction *7 following instruction: gave The trial court remarks. as law that the instructing you I a matter of Now am to and communicate privileged were discuss defendants comments, the state- and those comments were certain 19th in which meeting took at the on the place ments that Stash, Owens, Wilson, Bargerstock Mrs. Mrs. Mr. Mr. accountant, had who and the who was gentleman for reports. that he had called Mrs. testified was, law, of a meeting privileged as a matter That meeting had persons The who were at that conversation. in a they were involved right to be there because However, investigation. a business decision and business any then meeting, that action parties when those leave of first that any independent of them must be determined still cannot that there meeting. Now that doesn’t mean privileged or statements privileged be communication date, that each communica- at a later it means made but its merit. upon tion must determined own also at the Ealy present of Mr. who was testimony meeting, testimony Eisiminger, of Mr. according to the Eisiming- Mr. he certain comments to that communicated
411 I believe, law, as a matter of privileged er. that it was Eisiminger he Mr. that would tell that he had duties. new I think is in dispute you don’t that It up this case. is to decide, upon Eisiminger’s to Mr. testimony based weight give to to you want whether testimony, or any privilege Mr. abused he had and Ealy as a result the plaintiff, Bargerstock. defamed Anne That is one questions you must decide. Those are the instances case I am holding as a matter law privileged either communications at partial- least ly privileged It is up you communications. if decide there was an abuse that communication.
(Jury 8/8/88-8/10/88, Charge, 367-368.) pp.
Whether a communication is conditionally privileged is a question for court and privilege whether that is is a question abused the jury. Montgomery v. Denni son, 255, 69 (1950). 363 Pa. A.2d 520 publication “A is if conditionally privileged the publisher reasonably believes recipient shares a common the subject interest know____ and is matter entitled to privilege This applies private among communications dis employers regarding charge discipline.” v. Daywalt Montgomery Hospital, Pa.Super. 393 573 (1990). A.2d 1116 A conditional if privilege abused plaintiff can show the defen dant acted with malice. v. Berg Consolidated Freight ways, Pa.Super. A.2d 831 The privilege can the plaintiff also be lost if can show that the defendant acted with negligence. International, v. Banas Matthews Pa.Super. (1985) This is question that the jury cannot decide proper guid without *8 ance from the trial court.
A charge proper on com conditionally privileged begin munications should with which communications judge privileged trial finds are and privilege which fall they The judge under. should then instruct jury that privilege can lost for if each communication the jury decides that the defendant an privilege. abused To find abuse the privilege, the has to jury find the defen- 412 defamatory intentionally, communication
dant made false, knowledge recklessly, that it was without with the false, it true or outside of the regard to whether duties rise to gave of the defendant’s which performance or that the defendant made a false statement privilege, (See using reasonable care to determine the truth. without (Civil) 13.09 Def- Jury Selected Instructions Pennsylvania § (1980)). Privilege amation: Defense of in the case no charge given present gives The jury an of a about what constitutes abuse guidance possibly conditional The could not have privilege. communication is and privileged ascertained what how Because of charge given. can be abused from the inadequacy charge, we reverse the verdict and remand for a new trial.2 issue raised and by second WGCAC Wilson is erred by failing grant
whether the trial court their motion for a on post-trial judgment non obstante verdicto Bargerstock’s U.S.C.A. 1983 action. We hold that the § did err.
trial court
Bargerstock alleged
complaint
her amended
made
her def-
up
actions WGCAC and Wilson which
constituted
amation count
state action but also
her
her
her
damaged
reputation
ability
pursue
pro-
An
a person,
fession.
action under
exists when
§
law,
acting
deprives person
rights,
under color of state
privileges
by
or immunities secured
the Constitution or laws
of the United States. Parratt v.
451 U.S.
Taylor,
S.Ct.
413 Davis, state 424 by officer. Paul v. U.S. 96 S.Ct. (1976). defamation, Beyond L.Ed.2d 405 Barger- alleged stock has the actions that of WGCAC and Wilson her to damaged ability pursue profession. have her And in she been reinstated yet, position has her old salary.3 WGCAC at the same of appeal n.o.v.,
On from denial a motion this court light must view all evidence most favorable verdict winner. Kubacki v. Citizens Water Washing of ton, Pa., 403 Pa. Even viewing the evidence in the most to light favorable Bargerstock as winner, nothing verdict we can find that supports her alleged Her at claim. defamation the hands of § enough, WGCAC and Wilson is not according to U.S. Court, Supreme produced and she no evidence at trial to support her claim her ability pursue that her profession damaged. Therefore, was we reverse the verdict trial court and remand this claim as well.
The third issue raised Wilson WGCAC and whether damages the trial court’s on charge punitive improper. hold We that was. The trial court instructed on punitive damages as follows:
Now determining punitive damages matter of whether or not you grant punitive you will damages, may determine or must determine whether conduct outrageous defendants so that in addition compen- damages satory may which Mrs. you have awarded Bar- action, gerstock negligence you on her that wish award additional punish monies in order to the defendant or argues Bargerstock’s 3. The dissent claim was § 1983 based on the damages her during suspended she suffered the five months she was position allegation at WGCAC. This is not included in her complaint complaint. argues or her amended The dissent further compensated wages should at least be for the she lost period. over the five month The trial court instructed the they wages part damages could consider lost as of her under her however, wages, necessarily § 1983 claim. The loss does rise infringement Rights. Bargerstock to the level anof of Civil could possibly wages wrongful recover lost under a breach of contract or discharge suit. We note that both of those claims were included in complaint complaint either the or amended but were later withdrawn. conduct, purpose punish- for their defendants as a this must be looked at in a case like a defendant ing to recov- rights Bargerstock’s not Mrs.’s punishment *10 or defendants a defendant punish if want to you er. Now taking place activity this of type to deter in order that this of type out future, message or to send a then tolerated, you will not then will be conduct I stated Now have awarding punitive damages. consider (sic), the damage punitive in order to award twice is a conduct person’s Now outrageous. must conduct be he acts with under the law when outrageous considered reckless he acts with such or when a bad motive such and the party interest of another as to the indifference If him, in case defamation. by committed actions (sic), then damage punitive and intend to award you wish that the defendant to show or to find must able you acted with they or that had a motive defendants bad Bargerstock. Mrs. the interest of indifference to reckless 370) 8/8/88-8/10/88, p. Charge, (Jury instruc- general as a proper instruction The trial court’s (See conduct. for most tortious damages punitive tion on (Civil) 14.00 Pu- Instructions Jury Selected Pennsylvania § In def- (1980)). Instructions Damages nitive —General required a actions, however, damages have punitive amation that: court has noted formulation. This different actions are in defamation damages [bjecause punitive formulation of speech, punishment effect a influenced constitution- standard has been appropriate Inc., Welch, 418 In v. Robert al considerations. Gertz (1974), 3011, 789 323, 349, 2997, 41 L.Ed.2d 94 S.Ct. U.S. may held States Court Supreme the United States ‘[T]he at damages, or punitive permit recovery presumed showing of knowl- is not based on liability least when This for the truth.’ falsity disregard or reckless edge formulation of is, course, ‘actual malice’ the familiar 254, 710, Sullivan, 84 376 U.S. S.Ct. New York Times v. (1964). 11 686 L.Ed.2d
415
Steinbronn,
v.
Geyer
536, 559,
351 Pa.Super.
506 A.2d
(1986).
913
The Pennsylvania Supreme Court has held that
punitive
in order
damages
private
award
to a
party
suit,
in a defamation
plaintiff
jury must conclude that
convincing
there was clear and
evidence that
the defen-
dants) acted with “actual malice.” Hepps
Philadelphia
v.
Inc., 506
Newspapers,
reversed
(1984)
Pa. 304
A proper
punitive
instruction on
in a
damages
begin
defamation action would
with the judge explaining
convincing”
the “clear and
standard
and how it
higher
is a
standard
“preponderance
than the
of the evi
dence” test
used most civil cases. The
should then
judge
the jury
meaning
instruct
on the
of the term “actual mal
ice.” “Actual malice” means “that
the defamatory publica
*11
tion was made either
knowledge
with
it was false or
Banas,
with reckless disregard
of whether
it was false.”
Pa.Super.
If
apparent
at
The given instruction in the case jury present did give Therefore, not a definition of “actual malice.” we reverse and remand this case for a new trial on this count as reversing well. Because we are on the first three issues we do not reach the final issues. two
Reversed and remanded. relinquished. Jurisdiction CAVANAUGH, J., concurring dissenting files a and opinion.
CAVANAUGH, Judge, concurring dissenting: and I dissent respectfully majority’s reversal of a verdict in jury favor of Ann Bargerstock for the reasons which follow. ap- holding which
First, majority’s disagree I of one rehiring I that the footnote. believe in its first pears Ross) employees suspending after both (Carolyn employee is alleged impropriety same Bargerstock) for the (Ross and Furthermore, light meaning. defamatory capable Bar- circumstances of the determination the jury’s ele- otherwise fulfilled the suspension continued gerstock’s defamation, decision WGCAC’s for a claim ments sus- after both were Bargerstock not Ross but . reinstate Barger- directed at clearly reason is for the same pended stock. investigation determination made a targeted unjustifiably and way falsely in a which
proceeded in the fraud. When guilty party as the Ms. occurred, it is that a fraud established already has been conclude, law,1 that an em- matter or as a unrealistic exonerate, one reinstate, therefore decision ployer’s not at least individuals does guilty potentially of the two It is guilty party. second individual was imply not this jury, instructed properly appellate in fact defamatory court, an action to determine whether directed fact the defamation was and to decide whether Moreover, under the circumstances plaintiff. at the deter- for the to have case, not unreasonable it was Bargerstock’s during of Ross mined that the reinstatement implication.2 defamatory by suspension continued that the fact footnote, implies majority In first its employee a union Ross, Bargerstock, but is an extenuat- on her behalf grievance whose union filed a *12 actions excuses WGCAC’s which somehow ing circumstance why I fail to see a Bargerstock. reinstating in Ross but protection greater has employee, presumably union who holding. majority’s import explicit of the 1. This is the clear and adequately the court instructed plaintiff: 2. I also note that at the trial apply defamatory to the statement must the application of that not the You must also consider whether or ... Barger- Certainly [defamatory] plaintiff. Mrs. statement was to the defamatory up made for a statement stock would not make against myself a claim her____ against you; or it must be misconduct, enjoy more freedom should employer against employee employer an than defamation non-union cause of action matter, or, why Bargerstock’s for that chose to avoid conflict WGCAC merely fail because should employee. expense the of a non-union the union at with with the problems well have avoided very could WGCAC it Ross until had reinstating Bargerstock both and union by did the Since WGCAC guilty party. was determined which probe- the money, equally had taken was not know who in any Ross as event. have reinstated matic to in holding sweeping to the respect majority’s Lastly, in one, I who future wish employers note footnote defamation, with- suits justifiable themselves from shield alleged investigation wrongdo- into making reasonable out reputations of their protect discretion to ing using or fire more temporarily suspend employees, only need alleged have committed actually than could employees is under investigation way, that an claim improprieties, suspected, only least those who are employees reinstate significant por- the most using carrying care out later permits even investigation. majority tions of the during suspension to retain withheld employer pay after wrongdoing. is cleared of suspended any employee Second, assertion that the majority’s I with the disagree so insufficient or erroneous charge court’s charge, except trial. The entire as to warrant a new was sufficient damages, see relating punitive infra, in all substantially respects. correct sufficiency on the motion for a new trial is based Where a charge this court must examine jury charge, background of the evidence entirety against its appellate If the whether error was committed. determine erroneous, a new trial charge concludes that the court might preju- if have granted jury charge will be however, need appellant; prejudice, diced the extent of the 372 Pa.Su- v. Dempster Systems, not be certain. Sweitzer charge A of the entire review per. occurred; a whether error has necessary to determine *13 granted only trial be the instruction new will where Id.; erroneous. v. fundamentally Commonwealth Prosco- dimo, Supreme No. W.D. Docket Court of Appeal (filed 17, 1990). August Pennsylvania, The that the court majority adequately finds never de- conditional for the privilege jury they fined order determine whether a conditional privilege could was abused. fact, In the trial court found that a conditional privilege existed as a matter of law and explained why privilege attached: I am as a matter of that the instructing you
Now law defendants privileged discuss communicate comments, and those certain comments were the state- meeting that took at the on the 19th That place ments ... was, law, meeting as a matter of a privileged conversa- tion. The at that persons meeting right who were had a there they to be because were involved a business However, investigation. decision and a business when parties meeting, any those leave that then action any of them must determined of that first independent be meeting. Now that doesn’t mean that there still cannot privileged communication or statements privileged date, made at a later it means that each commu- just but nication must be determined its merit. upon own (Notes 367.) of Testimony, p.
Further gave instruction in the same vein more jury than adequate guidance privilege as to what a is and how it can by indicating be abused that communications jury protected under certain circumstances are are they because motivated by legitimate business concerns—which was the only kind of at issue in privilege this case. Rather than delving into the esoterics surrounding the entire law of privilege, concrete, the court communicated to closely upon related examples privilege they which could base their determinations to other respect statements. This was entirely proper certainly fundamentally so erroneous require as to a new trial. erred in the trial court states that majority also could find an abuse
failing to instruct the defendant acted with if it privilege determined have known of the is, knew should negligence, *14 While of the instruc portion that falsity of the statement. not a clear opinion in did contain quoted majority’s tion the necessary to (negligence) the of intent expression of level abused, the point at another privilege find a was that it need told the that to jury it would court’s instructions3 in order Bargerstock’s employers recklessly acted find that privilege. abuse of to find an as to charge entirety, in its we are bound
Examining the it the that would do, jury that the court instructed reveals (recklessness) than is higher a level of intent have to find the making in the false (negligence) needed actually find defendants abused their statement in order to that instruction, from inappropriately far privilege. The court’s them. The benefitted prejudicing appellants, actually element which the every instruction also included court’s proper- to necessary jury for the evaluate majority states privilege conditional was the assertion ly plaintiff’s inappropriate. ground is therefore abused. Reversal on of the trial Third, I the reversal disagree majority’s with motion for grant appellants’ post-trial court’s refusal to 42 Bargerstock’s on U.S. judgment non obstante verdicto 1983 action. C.A. § outset, should
At I note that n.o.v. judgment the cases, facts are the clearest of when the entered agree could fail to persons such that no two reasonable the doubts should be resolved improper. Any verdict was jury the pages transcript, court instructed 3. At 362-63 of the trial properly plaintiff proving privilege. has the burden of abuse 386, page At as the court instructed the follows: you defamatory if find that a communication made “Now false, may disregard you as find to whether was true then just privilege which I discussed abused.” produce actually required plaintiff This recklessness, evidence of instruction requires, higher before which is a standard than law benefitted, liability. charge unfairly find could Thus prejudiced, appellants. rather than Steinbronn, v. Geyer favor of the verdict winner. appeal, On the sole Pa.Super. court is to decide whether there was duty appellate verdict, grant- sufficient evidence to sustain the competent every winner the favorable infer- ing the verdict benefit reasonably ence which can be drawn the evidence. Id. assertions, had Contrary majority’s In alleged sufficient facts to sustain a Section 1983 action. to proving injury reputation, Bargerstock proved addition See, in her change employment status at WGCAC. Board Roth, v. 408 U.S. 92 S.Ct. 33 L.Ed.2d Regents of 548 (wherein (1972) proof Court held that of such allegations would be sufficient to sustain a Section action). sought damages Bargerstock recover were asserts, as the her to secure future
only,
majority
ability
*15
but also
to her
and her
employment,
damage
reputation
inability
during
period
to work
the five-month
when she was
loss of
does not
rise
suspended.
wages
necessarily
While
infringement
rights,
to the level of an
of civil
as the
notes,
to
the
majority
damage
reputation
inability
to
See,
pursue
may.
one’ career
v. Southeastern
McKnight
The case cited
the
by
majority, Paul v.
U.S.
(1976),
96 S.Ct.
v. CORNBLETH,
Terry Appellant. Superior Pennsylvania. Court
Argued May 1990. Sept.
Filed 1990. Appeal Petition for Allowance of Denied 1991. Jan.