*1 police”) property to held be (cited supra, 428 at Opperman, U.S. 3098).

96 S.Ct. at

Chadwick, distinguishing for Fourth purposes the intrusiveness of a

Amendment seizure,

search from that of a distin- containers, among

guishing types intro- may in fu-

duces new considerations proper

ture affect our view of the cases

scope inventory both warrantless police custody

searches of vehicles in investigative

warrantless searches vehi- mind, However, my search

cles. under

Ochs’ briefcase was reasonable

then-prevailing interpretation of the Fourth Judge Friendly I agree

Amendment. briefcase, having opened lawfully justified seizing were officers

clearly incriminating evidence was in

plain view. Under Peltier and Reda it

would inappropriate exclude evi- up

dence turned in the course of this search. CHUY, Appellant

Don in No. 77-1412

The PHILADELPHIA EAGLES FOOT- (sued Philadelphia

BALL as “The CLUB

Eagles”), Appellant in No. 77-1411 League. Football National 77-1411,

Nos. 77-1412. Appeals,

United States Court of

Third Circuit.

Argued Nov. 6, 1978.

Reargued En Banc Nov.

Decided March

Marvin Comisky, Weisberg, Morris L. Blank, Rome, Perlberger, Norman Klaus & Pa., Comisky, Philadelphia, appellant No. 77-1412. Schaeffer, Brodie,

Leonard Michael Rosen, Pechner, Dorfman, Wolffe, James D. Pa., each contained ap- The contracts a standard Cabot, Philadelphia, & Rounick entitling provision injury-benefit NFL 77-1411. pellant No. performance of his injured, in the player salary “for the term his to his service Argued Nov. injury sustained a serious contract.” DUSEN, Cir GIBBONS and VAN Before during his first season his shoulder FISHER, Judge.* District Judges, and cuit Eagles and the New game between the In Banc. Reargued Nov. November, 1969. Sidelined Giants York season, Chuy the remainder of SEITZ, Judge, VAN DU- Chief Before December, hospitalized for most ROSENN, ALDISERT, GIBBONS, SEN, hospitalization, his During diag- HUNTER, WEIS, and HIGGIN- GARTH embolism, pulmonary nosis revealed BOTHAM, Judges.** Circuit lung, in his which marked the end blood clot professional athletic career. Follow- of his THE OF COURT OPINION physician, Chuy ing the advice of his decid- ROSENN, Judge. Circuit professional ed to retire from football and Eagles of intention. At the interesting notified the appeal presents several This time, Chuy requested same employment questions growing out remaining years two pay him for the Club Philadelphia Eagles Football three-year what he asserted was contract. professional (“the Eagles”) of a former *5 (“Chuy”). unexpect- The Chuy Don player, Eagles requested Chuy that submit The Chuy’s ed termination and unfortunate Dick physical which Dr. D. examination charges by him that evoked employment March, in 1970. After Harrell conducted game accord- Eagles played had not the the tests, Dr. Harrell concluded that extensive the whistle Chuy when blew ing to the rules Chuy from an abnormal cell condi- suffered ulti- Chuy career. terminating football tion, polycythemia, which presumably stress to an anti- mately charges reduced those the may predisposed him to formation the diversity and action in United trust dangerous clots. He therefore rec- blood Eastern Dis- District Court the States for. Eagles Chuy should ommended Pennsylvania. trict of participate further “not be allowed Shortly receiving sports.” after Dr.

contact recommendation, I. BACKGROUND General Mana- Harrell’s Brown, Hugh informed ger Retzlaff 1969, having joined Eagles the Chuy Philadelphia Bulle- sports for the columnist Rams, Angeles from Los been traded the tin, quit Chuy advised to had been professional with another football club his blood clot condition. football because of years. played which he had half dozen telephoned thereupon Brown Dr. James 1969, Eagles met On June with the Nixon, for fur- Eagles’ physician, team Retzlaff, general manager, Palmer “Pete” Chuy’s on medical status. ther information Philadelphia, Pennsylvania, negotiate 9, 1970, Hugh by-lined Brown’s April On a contract with the for the Philadelphia in the Bulletin carried par- column and 1971 football seasons. The Chuy’s premature retirement. an account of negotiations their execu- ties concluded following: opened The column League (NFL) ting three National Football player on June Polycythe- standard form contracts . . . jaw-breaker It’s a 1969,1970, question covering and 1971 foot- be- mia . . . and Vera $30,- salary Chuy, Don respectively at a fore the house is how ball seasons $15,000 season, Eagles’ got hit with the squatty guard, with a advance each jaw-breaker. for the 1969 season.

* ** Judge Fisher, sit with the court States Adams was unable to Honorable Clarkson S. United Jersey, injuries. Judge New in banc because of District for the District of sitting by designation. (E.D.Pa.1976), and the dismissal has not consequences Polycythe-

“One Nixon, Vera,” appealed. mia said Dr. James been The court submitted the jury by “is that blood cells Eagles’ physician, remaining special claims to in- get way. It’s a in each other’s definite terrogatories, and the returned ver- embolisms, or emboli.” threat form plaintiff. dict for the On the basis jury’s findings, the district court molded a quoted The column Retz- remainder damages award for breach contract laff, Nixon, attorney Chuy’s Dr. con- $45,000, $60,- the amount of which reflected Chuy’s medical condition and his cerning salary due for 1970 and 1971 sea- compensation effort to for the obtain addi- sons, $15,000 Chuy less a debt owed the putative three-year years tional two of his Chuy $10,- Eagles. awarded also contract. The Associated Press wire service compensatory damages for the inten- picked up story appeared and articles tional infliction of emotional distress claim throughout day newspapers next $60,- punitive damages in the sum including Angeles country, the Los Times. claim, 590.96. defamation reported Chuy On the articles had been in its give up profession- special interroga- “advised to found answer to the football wrestling al of a that Dr. Nixon’s statements because blood condition” tories tended to that, Nixon, injure reputation, according Chuy’s to Dr. James but that the col- umnist, Brown, Eagles’ physician, “Chuy suffering Hugh did not understand polycythemia vera. it publication Nixon said is con- that the the doctor’s state- reputation. sidered threat to form blood clots.” ments would harm thereupon judgment district court entered reading Angeles After the Los Times ar- against his defamation claim. ticle, Chuy panicked testified that he immediately personal physician, called his entry judgment against After the Perry. Dr. Perry John W. informed $115,590.96, aggregate sum of vera was a fatal parties post-trial seeking both filed motions that, records, disease but from his did judgment notwithstanding either the ver- *6 not have that Perry disease. Dr. added v.) (judgment dict n. o. or newa trial. The that he would run a series of tests con- Eagles the addressed their motions to con- diagnosis. Chuy firm his testified that he tract and of intentional infliction emotional apprehensive, despite Perry’s became Dr. Chuy’s sought distress claims. motion assurances, and, emotionally, broke down new trial the on defamation claim. The frightened by the of prospect imminent post-trial court all district denied motions death, any refused submit to Chuy tests. parties and appealed. both We af- months, stated that for the next several firm.1 cope daily could not with routines and he people. avoided He Perry, returned II. OF BREACH CONTRACT gave who him numerous tests which dis- contend, they The as did in the proved presence the of vera. court, district that the three contracts Nonetheless, Chuy testified that he contin- signed with the day them on same were on ued be apprehensive about death and consecutive, separate, their face three one- that marital developed. difficulties also year They contracts. assert that the con- Chuy eventually brought against suit the tracts for the 1970 and 1971 seasons re- Eagles and the League, quired Chuy comply 6, National Football paragraph violations, alleging antitrust provides breach con- complete physical of which for a ex- tract, intentional infliction of emotional dis- amination of the of player at the start each tress and defamation. training during The district court session the term and the claim, dismissed the F.Supp. antitrust 407 right of the “Club” to terminate the con- Eagles’ appeal Chuy’s cross-appeal panel to be vacated and the case reheard initially panel were heard of court. court in banc. judgment original The court ordered the

1271 its “clear if words are instrument fails to establish his written “Player” if the tract Id.; Cross- unambiguous.” the satisfac- see East physical condition to excellent Co., Eagles’ Center, 416 physician. tion v. of Club roads Inc. Mellon-Stuart of a “no-cut” position 229, (1965); is that absence Refin- United Pa. A.2d 865 205 for the 1970 and provision or “no-release” 126, 574 189 A.2d ing 410 Pa. Co. v. Jenkins seasons, only to 1971 was entitled language of the (1963). However, when the 1969 season salary under the balance his extrinsic or ambiguous, written is contract the district They argue that contract. to resolve admissible parol evidence is given effect to this un- should have 90, Estate, 400 Pa. In Herr’s ambiguity. re of the contract ambiguous construction (1960); Kennedy v. 94, 32, 161 A.2d 34 par- parol evidence of the without resort to v. Erkman, Columbia supra; Castellucci understanding.2 ties’ intent and A.2d Gas, Inc., Pa.Super. 310 226 however, Becker, interpreta- concluded Judge (1973). Although 333 signed by forms the three written contract is contract that clear tion of a written reasonably were sus- and the court, Plaza is Pines unambiguous meaning ceptible ambiguity in Inc., Rossview, Pa. Bowling, v. 394 Inc. in as used phrase “term of this contract” (1958), once the court 676 145 A.2d thereof and that when the paragraph 14 parol pertinent evidence determines 14 together, paragraph read contracts were ambiguous con- to the construction “highly ambiguous.” He decided that tract; the ambi- it is for the to resolve ambiguity resolve the jury should Easton parties’ find intent. guities and parol pertinent the basis evidence. Co., County Washington Insurance prac- jury found that under the established (1957); 28, 35-36, 137 Pa. A.2d NFL, tice relieved of in club Inc., Gas, supra Castellucci Columbia salary liability subsequent seasons Pa.Super. A.2d at at “multiple” by which a covered contract coverage compensation The term day player signs documents on the same en- per are determinative season relating to football sea- generally successive the con- paragraph under titlement sons, injury one if the sustains an player tract, event of provides that which perform by reason season and is unable to injury: injury subsequent of that seasons.3 (2) will con- . Club ... must determine whether We first contract, tinue, during term this as a law court erred matter of district salary provided in 3 pay Player K task as submitting opin- it long so is the . obligations parties un certaining the *7 Player, Physician that ion of the Club executed on they der the three documents per- injury, to because of such is unable 16, The rule of con June 1969. cardinal by this required of him form the services is the intent of the tract construction (Emphasis supplied.) contract. parties they time contracted is con at the 651, paragraph Erkman, Chuy compensation under Kennedy claims trolling. 389 Pa. The seasons. Under Penn 14 for the 1970 and 1971 133 A.2d as a contracting having each contract sylvania law,4 Eagles, the construed intent the respond that parties exclusively single-year agreement, from the determined incapable found, interrogato- jury response injury him 2. to an ed in 1969 which rendered The ry, Chuy play playing during 1970 and football for the unable football Eagles during seasons, Eagles 1970 and 1971 seasons liable to the the would be the play- injuries salary because of the he sustained while for 1970 1971. and during ing do not the 1969 season. The challenge finding. parties in Penn- the documents 4. The executed undisputed law sylvania it the the The found that applies of the to the construction that state during negotiating the session on June intended contract. football-relat- sustained a Eagles rely heavily Sample The the 1969 season’s contract was effect at injury the of Chuy’s time and that their Club, Inc., Gotham Football 59 F.R.D. 160 obligation to him is limited to that contract (S.D.N.Y.1973), the where district court had solely.5 before standard form it construction player adopted by The standard contract player which were contracts identical professional leagues the football sets forth those here and which raised a similar issue. respective obligations player, the club play- The court had to determine whether a league. only provisions requiring injured er in 1969 was entitled recover negotiation agreement individualized salary his for the 1970 season under the are the term of the contract and the injury-benefits clause in view of his simul- compensation.6 appear amount of Blanks separate taneous execution of three con- parties on the form for complete 1968, 1969, covering tracts and 1970 termination date of contract and the football seasons. It held that the intent of compensation amount of payable for each parties clearly revealed that each sea- during football season the term of the con- son’s contract was discrete and distinct and signed tract. On one form by Chuy, the rejected player’s contention that he had termination date paragraph indicated in three-year contract, entered into one not- May the first of following the close of withstanding sepa- the execution of three season; others, 1969football on the rate contracts. It therefore denied as a years 1970 and 1971 were respectively in- matter plaintiff’s of law the claim for sala- serted. On $30,- each form the amount of ry for the remaining following season 000 was entered in space para- the blank injury. however, Sample, as confirmed graph 3. Eagles’ letter counsel to this Because the date of execution for court, printed paragraph terms 1 had each contract plain was June been altered in the form contract. The meaning paragraph contracts, 1 of the parties had stricken the words “the date of executed, was to create respectively a one- execution hereof” and had entered in hand- year season, contract the 1969 a two- writing for the “May 1969 season the date year seasons, contract for the 1969and 1970 2, 1969” and in the contract for the 1970 a three-year contract for the 1969-1971 season “May the date 1970.” These in- overlapping seasons. Such terms of cover brief, terpolations, although were sufficient age paragraph rendered 14 in the executed to relieve the ambiguity contracts from ambiguous. Thus, documents we cannot to their term. Had the say contracts before that the us district court erred in admit ting parol emendations, borne similar clarify might evidence to we also the intent of parties toas the term of their unambiguous. contract have deemed them and the applicability pro of paragraph 14’s testimony

vision heard compensation. claim for Moreover, principals concerning negotiations Pennsylvania under well-settled law, the trial properly on the day submitted to eventful the documents were question parties’ signed. Chuy intent. recounted that he re- Eagles argue day May following in their briefs this court the close of the football *8 contract, that unlike a commencing year “no-cut” or “no-trade” season in the calendar signed by Chuy required 19-, the subject, however, termination, three documents to ex- report camp, training him to each season to to specified tension or renewal as herein. pass physical perform the examination and to ****** satisfactorily during each season in order to Player’s 3. For: the services a skilled salary given become entitled to his a for sea- player during football of the term this con- son. promises . tract: the Club . pay Player during to the each football season player provides 6. A standard contract form in contract, the term of this . . the . pertinent part: of__ amount 1. The term of this contract shall be from the date of execution hereof until the first

1273 we testimony, conclude there is sufficient “no-cut, no-trade” three-year, a quested $100,- jury of from which the could have aggregate an sum evidence contract for $15,000.00. He parties compen- the intended to and an advance found that 000.00 a any countered with Chuy years that Retzlaff for three for football- testified sate which he described three-year disability contract crippling related his career. We “$90,000 including package,” an attractive error the therefore find no in district $15,000 advance, rejected the no- but the Eagles’ judg- court’s motion for denial hand, cut, the other proposal. no-trade On n. ment o. on contract claim. Chuy request- ever denied that Retzlaff $100,000pack- or three-year package ed a III. INTENTIONAL INFLICTION OF to pointed He that he out age. testified EMOTIONAL DISTRESS Eagles to still that latter came the Chuy the recovery damages for Plaintiff’s $25,000signed existing at under an contract distress, stemming having from emotional Rams, to Angeles but encour- with Los read Dr. Nixon’s statement that Philadelphia he coming to age vera, was suffering from $30,- him renegotiate to and offered agreed predicated upon principle enunciated that. year and each after 000 for 1969 for (Second) 46 of section the Restatement special inter- jury, response to the provides: Torts That section Retz- found that both and rogatories, outrageous One who extreme and an intent” to “manifested words laff intentionally recklessly causes conduct salary'to Chuy for have the liable severe emotional distress to another 1970and 1971in the event sustained subject liability for such emotional dis- injury 1969 which ren- football-related tress, bodily to the other and harm incapable playing him in 1970 and dered it, bodily from harm. results such 1971.7 Thus, there are four elements the action of a motion appeal from a denial On (1) be ex under 46: the conduct must verdict, notwithstanding judgment (2) the outrageous; conduct treme all the evidence and this must view reckless; (3) must be intentional or it must reasonably drawn inferences therefrom distress; (4) cause emotional the dis to the light party most favorable Although the Penn tress must be severe. Equitable Kademenos v. Life the verdict. yet spe sylvania Supreme has not as (3d Court Society, F.2d 1074 Assurance entirety the Restate cifically adopted in its 1975). this limited function at Cir. Our comments, Pennsyl ment’s point review of the formulation to ascertain from a acceptance their signalled vania courts have record whether there is sufficient evidence evolving Law jury Papieves this tort. of the on to sustain verdict rence, (1970); reviewing pertinent trial Pa. 263 A.2d After issue. brought by complaint strenuously Papieves, argue dis- that the trial traught jury parents alleged judge refusing to let the defendant’s erred in have opportunity examining de- their and that the three contractual automobile struck son fendant, minor, notifying police signed by parties during instead of their documents boy, body parents judge so or the of the hid deliberations. reasoned to do they grave. might suggested it in The Penn- later buried a makeshift sylvania Supreme interrogatories solely the dismiss- should answer the on the Court overruled demurrer, holding complaint language. He al of the basis the contract chose on may “recovery inform the of the nature the contractual had for serious mental ambiguity directly inten- to construe emotional directed them distress caused documents, mishandling dece- written but determine the tional and wanton acts parties parol body alleged.” intent of the evidence. dent’s 437 Pa. which are here Although explicitly prefer- we it would have at believe been A.2d at 121. The court permit part docu- relied in 46§ able examine the of the Restatement instructions, However, proper say we cannot of Torts. ments under because *9 procedural posture error in of the extraor- the district court committed reversible case its dinary facts, oppor- adopted. the court did not have the the course he Manchester, 192, 189 Pa. precisely Forster A.2d district court followed the Re- (1963); Nissenbaum, Rudolph procedure. Jones statement’s Seidner, Pa.Super. & 368 A.2d 770 applying legal In the standard for law, light the extant case we to sufficiency support of the evidence believe that the black letter rule of 46 of § finding outrageous conduct, of extreme and Restatement, along interpre the with the correctly the district court ruled that comments, may tive be as basis applied the Dr.] sportswriter Nixon advised Brown that in Pennsylvania law for tort of inten suffered vera,] tional infliction of emotional distress. not knowing that did have the dise Eagles argue that court the district ase,10 reasonably such conduct could be jury should have submitted to the regarded outrageous. as extreme and Ac question Dr. whether Nixon’s statements cording Restatement, to comment d of the outrageous constituted “extreme and con- finding it has not been for a sufficient duct”; gave improper that the court in- liability “the that defendant has acted with concerning intent necessary structions criminal, an intent which is tortious or even for the tort and that there insufficient or that he has intended to inflict emotional jury evidence for the the requisite to find distress, or even that his conduct has been intent; Chuy’s allegedly exaggerated that ” characterized ‘malice.’ unreasonable reaction Dr. Nixon’s Liability has been found where precludes remarks the Eagles’ liability; and outrageous conduct has been so in charac- the Eagles that cannot vicariously be liable ter, degree, and so go extreme in as to even if intentionally Dr. Nixon or recklessly beyond possible all decency, bounds of caused severe emotional distress. regarded and to atrocious, be and ut- terly community. intolerable in a civilized The Eagles first contend judge Torts, submitting (Second) trial Restatement erred com- § ment d. the issue whether Dr. Nixon’s statements outrageous

constituted “extreme and con Accepting stage as we must at this They duct.” assert that an actor’s conduct Chuy’s events, version of the we have a must as a examined matter law the press by statement physician as- h upon court limine. Comment to § sumed to know the person facts that a which the Eagles rely, divides the functions suffering potentially disease, from a fatal the court and conventional though physician even was aware that determine, manner.9 The court must as a person was not stricken with that condi- law, matter whether there is sufficient This, course, tion. constituted intolera- evidence for persons reasonable ex find professional ble Disseminating conduct. treme outrageous plain conduct. If the through press falsehood the national tiff has evidentiary satisfied threshold compounded Surely the harm. Dr. Nixon’s requirement, find facts statements, must jury, understood went and make insults, its own The beyond indignities characterization. the “mere . tunity scope newly court, whether, particular define further the of this to determine recognized case, tort. sufficiently ex- conduct has been outrageous liability. treme and to result 9. Restatement Torts comment h, recognize We Nixon testified that reads in full: diagnosis positive he never polycythemia told Brown of a jury. h. Court and It is for the only suggested vera and determine, instance, in the first whether Chuy may polycythe- suffered from a may reasonably defendant’s conduct be re- mia, jury, garded outrageous non-fatal blood condition. The as so extreme as to however, recovery, permit necessarily believed Brown’s recollection whether it is differ, may phone so. Where reasonable it is conversation with Dr. We are men Nixon. subject jury, accept jury’s finding. the control of bound to *10 plaintiff will be to cause the emotional dis- annoyances” people prepared or which are tress, equivalent, language withstand.11 is to i, to the “deliberate Restatement’s comment next that Eagles contend degree of disregard high probability of a charging the district court erred that the emotional distress will follow.” and Section 46 does on intent recklessness. Thus, the district court’s instruction com- recognize negligent liability mere ported requirements Restatement’s infliction of emotional distress. See Con for recklessness. (E.D.Pa.1975). Spitz, F.Supp. way Having charged, properly been However, causing reckless conduct emotion reasonably found could have that the re- actor as as if he al distress renders an liable to quirements of section 46 as intent had i to intentionally. had acted See comment testimony given by met. The Brown been jury’s To to 46.12 facilitate answer § sufficiently supported finding a that Dr. interrogatories, judge gave the trial in Nixon’s remarks were reckless. the tort of structions the elements of re infliction of emotional distress. With Beyond of Dr. the characterization intent, requisite he stated that the spect to as reckless outra Nixon’s statement and if could found prevail Chuy’s that reac geous, the assert (a) Dr. inten that Nixon’s statement was exaggerated tion to the and statement (b) natural probable tional and that the Eagles point to evidence unreasonable. The consequences making the statement were reading the at Chuy, that after statement Chuy and that it would known to become newspa tributed to Dr. Nixon in the local would him emo that such awareness cause undergo tests which he had per, refused distress.13 tional disprove presence been advised would attempt vera. Nor did Eagles’ argument, As we understand the Dr. Nixon or Dr. Har to communicate with was aware that his com- unless Nixon verify newspaper account of his rell to substantially cause ments were certain to Instead, Chuy depressed illness. became distress, remarks Chuy severe emotional delaying period tests despondent, cannot be to be “reckless.” We are found that of six months. The assert however, if that Dr. Nixon’s persuaded, Chuy’s prompt failure to secure medical intentional, he need not statements were un putative of his illness was verification proba- have been aware of the natural and liability inflic justified, precluding for the enough consequences ble of his words. It is of emotional distress. tion substantially cer- that distress was follow j requires plain- tain to Dr. Nixon’s rash statements. Comment to 46 that § falsehood, Intentionally propagate that suffered severe distress prove tiff he unreasonable, consequences or probable exaggerated, natural and of which is not that certain, certain, substantially By analogy, 46 of the illustration such distress liability supports applies Restatement here: It also to result where he acts his conduct. recklessly joke, falsely ... in deliberate practical 1. As a A tells B degree probability injured disregard high badly of a that her that husband has been accident, hospital and is in with both emotional distress will follow.” legs severe liability dis- broken. B suffers emotional subject A is her tress. to B for explained in these 13. The district the tort If it emotional distress. causes nervous precise words: illness, subject resulting shock A is you intentionally make a statement the So liability to B illness. for her consequences probable of which natural fortiori, joke, playing A is liable If liability recklessly person him and cause it will known falsely justifiable seems if doctor making distress and if or her emotional person it known to a makes shocking outrageous statement is suffering from a fatal disease. decency exceeds with re- and spect the bounds i “Intention and reckless- Comment reads: probable impact, its then natural and applies ness. rule stated in this Section a case of intentional infliction of emotional where the desires to severe emo- actor inflict distress is made out. distress, tional and also where he knows *11 1276 e., performed

unjustified. conduct to further busi- The same comment further the may encompass *12 for an punishment view be a form of double Choi, also at 1227. See supra Medvecz v. compensable at all only offense is which Makers, Cystoscope Thomas v. American outrageous of nature. Ecken- because its Inc., (E.D.Pa.1976). 255, F.Supp. 414 263 Co., v. America Insurance 470 rode Life of so, being predicating compensatory This 1, (7th 1972) (punitive damages 5 F.2d Cir. outrageous con- damages upon finding a of outrageous quality of denied because “the preclude separate duct assess- does not of the defendant’s conduct forms the basis damages past ment punitive punish of damages compensatory the action” and suf- future conduct. deter tortious Second, punitive). Eagles ficiently ar- damages commonly are awarded Punitive damages gue punitive improperly were in cases of intentional torts. There is noth- upon the for the torts of imposed principal ing peculiar of of about the tort infliction Third, agent. Eagles its contend that emotional distress that should limit its vic- improperly instructed on only compensatory damages. tims The punitive damages measurement of and that explicitly justifies of Restatement Torts compari- the amount levied was excessive in punitive compensatory award of both compensatory son with the award. damages analogous for an tort: Pennsylvania recognize courts the stan- which, prosecu- torts like malicious [I]n governing punitive damages set dards forth tion, require particular state anti-social (1939). of in 908 the Restatement of Torts § mind, of improper motive the tort- of Choi, 1221, (3rd v. 569 Medvecz F.2d 1226 necessary feasor is both a element in the 1977). Montgomery, Cir. See Chambers awarding cause of action and a reason for 355, (1963); Pa. 192 358 411 A.2d punitive damages. Babcock, 475, 480-81, Hughes v. 349 Pa. 37 551, (1944). 908, A.2d Torts, 554 comment c. Restatement of § acknowledge recog- all that not states We damages,

Punitive as defined for of emotional dis- Restatement, nizing a tort infliction 908(1) section of the Torts are damages. punitive tress an of allow award damages compensatory other than or nomi In- nal, Compare v. Life America against person punish Eckenrode “awarded Co., (7th 1972) 470 5 outrageous him for conduct.” We see surance F.2d Cir. damages Illi- inconsistency awarding punitive (punitive no not sanctioned under dam ages by legal Law), same Na- standard used nois with Fletcher Western Co., determining liability compensatory Cal.App.3d 10 for tional Life Insurance damages. purposes (1970) The 404, Cal.Rptr. (punitive two forms 89 95 damages quite are law). distinct under Penn damages under California sanctioned court, sylvania applying law. This Penn Pennsyl- anticipate It is task to how the our law, sylvania recently pur enunciated the Supreme on this vania Court would rule punitive poses damages in tort actions: noncompensatory light matter. damages in malpractice purposes punitive question promoted by The in medical cases, generally, generally Pennsylvania as in tort tort under actions actions law, sufficiently ag Pennsylvania whether there has been courts would we believe damages in gravated contrary plain punitive conduct sanction award interests, involving tiffs’ bad motive or cases of tortious infliction appropriate indifference, Cf., justify Richette v. spe- reckless emotional distress.15 Solo- every damages proper. suggest punitive 15. We do not of Torts are case proven liability Although underlying out- conduct must be under 46 of the Restatement 1278

moa, (1963) damages is liable (uphold- exemplary 910 ration for 410 Pa. A.2d servant, ing punitive damages in suit for acts acting award of its within the prospective authority. scope intentional interference of his Skeels v. Universal advantage). supra Accord, business Corp., C. I. T. Credit at 852. Orbann, Philadelphia Traction Co. v. that, argue gen (1888); Pa. 12 A. 816 Gerlach v. Pitts- rule, punitive damages eral should not be burgh Railways, Pa.Super. against principal who assessed does Judge recognized potential Hastie in or con participate approve tortious agent. rationale harshness this rule concluded suggested duct of his agent “the conduct of the who damages designed punish wrong whole, complained doers, injury inflicts the of must than make victims rather against clearly outrageous justify rather parties per assessed the vi- should be imposition responsible exemplary damages carious sonally tortious conduct. that, upon principal.” assert of this F.2d at 852. We facts *13 case, persuaded wrongdoing Judge were are to follow they innocent Hastie’s analysis reviewing the regard to Nixon’s statements. In the record in this case. managerial participation in absence of or We note that request, the did not statements, approval of Dr. Nixon’s the Ea refused, so and were not an instruction gles punitive damages claim in the delineating compass a narrow the for award penalty inappropriate. nature of a were punitive against damages employer an Eagles rely The 909 of the on Restate- employee. for the torts of his § intentional Torts, adopted ment of as pursuant 217C requested, § Fed.R. (1958), of Agency Restatement Civ.P. an on punitive instruction dam- scope employ- which circumscribes ages the an which special did not mention a stan- liability principal’s punitive er’s or for dam- Rather, for liability. dard vicarious the in- ages.16 Although Pennsylvania no cases required jury struction would the have apply have cited this provision, been which making find that the act of the statements we do not write on a clean slate. In Skeels was done with a bad motive or reckless Corp., v. C. I. Universal T. Credit 335 F.2d indifference to others. The instruction did (3d 1964), court, diversity 846 in a request Cir. jury the to determine whether action, considered whether Pennsylvania Eagles’ the management participated in or the adhered to rule of 909 of the Restate- approved § the reckless acts. The district ment limiting employer’s expo- of Torts an parties court informed the it would punitive damages sure to for the torts his the request charge cover defendant’s for Hastie, employee. Judge reviewing the punitive damages on in its instructions. precedents, state concluded jury The actual instruction accurate- Pennsylvania followed the “less ly restrictive” reflected law stated Pennsylvania above. rule Michigan enunciated in Lake Shore & jury was instructed to award in its Railway Rosenzweig, Southern Pa. damages punitive penalty discretion as a (1886), corpo- 6 A. that a and deterrent “dereliction and malice.” rageous liability, may damages properly to sustain the factfinder Punitive can be awarded conclude, case, particular against principal the record in a a master or other because exemplary damages if, if, would not be agent warrant- anof act an but Torts, 908(2) (1939). ed. Restatement (a) principal doing the authorized the and The factfinder must whether act, consider the func- the manner of the punitive damages tion of would be well served (b) agent principal the unfit and the was light circumstances, including all the him, employing reckless in act, character the motive of the tort- (c) agent employed managerial in a feasor, parties. relation between the capacity acting scope and was of em- Montgomery, See Chambers v. 411 Pa. ployment, or A.2d (d) employer manager or a of the em- ployer approved ratified or the act. provides: 16. Section 909 president’s remarks about the team deciding that Dr. Nixon’s In statements jury- the tort outrageous, dispute The contract Chuy.17 were extreme causes of action underlying claim, for the Cause although found a basis distinct action, In punitive well as award. interwoven and liability, are the context of prior parties court’s construction light of this at between bear on relations Pennsylvania law in Universal Skeels were harmful statements the time the damages Corp.,supra, punitive C.I.T. Credit Thus, jury could we believe that made. against assessed properly could been Eagles’ conduct of have considered the Eagles. either Dr. Nixon resisting efforts to management in calculating the pay in years’ receive three sum, Pennsylvania we believe that circum- In view of unusual award.18 adopt of vicarious courts would a standard giving stances of this case liability punitive damages which would which benefit of all inferences encompass of Dr. Nixon found the conduct entitled, are conclude now we unable outrageous. to be The award reducing erred in not that the district court left damages properly such damages.19 punitive jury’s award of case such in this made factfinder. con- on the basis of instructions award proposed by those the defend- sistent with Y. DEFAMATION governing Pennsyl- ants and in accord with court’s appealed Plaintiff the district has vania law. new trial on the denial of motion objection to the *14 One further On the complaint. count of the defamation damages award the punitive concerns pertinent to jury’s basis of the answers contend that the amount. The interrogatories, court molded the district $60,590.96 award was both excessive against plaintiff, denying him re- verdict Chuy’s improperly reflective of contract caused covery injury reputation for to his claim. e to 908 of the Restate Comment § defamatory the content of Dr. allegedly provides that ment Torts the trier April Brown’s Nixon’s statements recited in fact, may assessing damages, consider all in 9, 1970 column. circumstances, including the motives of the relationship the wrongdoer and the between found, spe to in answer jury addition, parties. Pennsylvania In courts proved that the interrogatory, cific punitive damages require that not be dis convincing that Dr. evidence by clear and proportionate compensato to the amount of intentionally told Brown that Nixon ry Hughes Babcock, Pa. damages. 349 vera. suffering was 551, A.2d 37 554 jury the to determine The court also asked men all Nixon’s statements whether of Dr. Although punitive damages the awarded article, when taken newspaper in were six tioned more than times the compensatory injure Chuy’s reputa damages, to together, we do not tended order a reduction of affirmatively. tion, jury answered punitive recovery. it and the jury before had whether news jury was asked Eagles’ manage- Finally, the concerning evidence publiea- that understood ment’s for Brown Chuy’s disdain contractual claims columnist actually office, secretary Eagles’ evidence that 17. A in Mrs. have no 19. We front equal punitive damage Jurgelewicz, award to Gloria remem- testified she calculated course, Tose, president, Eagles’ it bered that Leonard had claim. is well contract Of said, way Chuy, inquire in accepted in reference to into the “There is no a court will not going money, pay employed hell are we to him that dur- calculation methods damage his remainder of contract.” ing When a award its deliberations. susceptible liquidated a mathematical to not formula, point in 18. The can neither error to an disturb the are reluctant to courts the district court’s instruction as to calculation Loveland, 115 Armit v. resultant measure. any punitive damages re- of amount of to nor 1940). (3d 314 Cir. F.2d give fusal the district to instruction requested pursuant to Rule 1280 part upon plain- Dr. would characterization of

tion of Nixon’s statements tend reputation. official, injure Chuy’s public public figure, re- tiff as either a sponded interrogatory specific private person. In v. Robert Gertz negative. law Pennsylvania Because re- Inc., Welch, 418 94 41 U.S. S.Ct. quires recipient understand (1976), Supreme Court de- L.Ed.2d defamatory liability communication as public types figures. scribed two Some exist, Co., Publishing Corabi v. Curtis “pervasive notoriety” fame or individuals (1971); Pa. A.2d Pa.Stat.Ann. figures all public are contexts. Id. at 1584a(d), tit. 12 response to the last Alternatively, “an at 3013. S.Ct. interrogatory compelled the court to enter injects himself or is drawn into a individual the verdict for on the defendant this issue. public controversy thereby becomes a Although we judgment, affirm the we public range for a limited issues.” figure reach this result because we believe the Id. in question remarks were defamatory matter law and the issue should not athletes, least as Professional at gone jury. playing careers, generally their assume a position public Their prominence. con defamation, prove To a ease of disputes, as well as their athletic tractual Chuy needed first show Nixon’s accomplishments, command the attention of capable remark was of defamatory meani sports particular, Chuy, fans. was a ng,20 and whether he had made this show player Eagles. had starting ing awas matter for the court to decide. fHe gained special being in reaching prominence question, a decision on the court, amajorand^well-publicized as a trade matter of volved in federal constitutional law, to apply proof assigned from the standard of which contract based Chuy’s public inju Angeles Eagles. status. The Los Rams His United States Supreme Court has these ry established stan field and led to sustained on proof response dards of to two competing condition which physical of a discovery principles: protect the need to personal rep all this as forced his retirement. With *15 utation, and vigorous the need for a dispute background, Chuy’s with press uninhibited that will serve the strong concerning payment in the 1970 offseason public interest in learning public about fig private years’ salary was no mere two Welch, Inc., ures. Gertz v. Robert 418 U.S. Chuy been thrust contractual matter. 323, 341, 2997, 94 S.Ct. 41 L.Ed.2d 789 Dr. Nix public prominence long into before (1976). April, appeared on’s in the 1970 statements difficulty no in con and we have Bulletin

Beginning New York Times Co. v. Sullivan, of law that was a cluding as matter 254, 376 710, U.S. 84 S.Ct. 11 article, public which discussed figure. L.Ed.2d 686 (1964), the United States Su- condition, preme Chuy’s his contractual physical Court has enunciated various federal retirement, clearly constitutional and his con dispute, rules protect which first public figure, amendment interests man who was at and which limit cerned a in respects ability several to respect play state causes of action for least with defamation. The rule applied depends to be football.21 Pennsylvania Co., 432, Supreme Publishing adopt- 441 Pa. Court has v. Corabi Curtis 442, 899, (1971), quoting ed the defamatory definition A.2d Restate- 273 904 communica- (1938). tion as Torts § in ment of 559 enunciated the First Restatement of Torts: Chuy’s public prominence 21. We believe that defamatory A communication is if it tends so good deal more was a marked than the status reputation to harm the Time, of another as to lower Firestone, in Inc. v. 424 community 958, him the 448, estimation of (1976). or to 96 47 154 U.S. S.Ct. L.Ed.2d persons associating deter third from or deal- Mrs. Firestone was found not The former ing prominence with him. a role of in affairs of have attained society her divorce action deemed not 453-54, controversy. public Id. at 96 S.Ct.

1281 suffered vera. may Chuy from figure, this public is a Because by “convincing clari- prove that he no require perceive We basis for contention capable that Dr. Nixon’s statement ty” that it is a disease” which “loathesome This is the stan- defamatory meaning. defamatory per should be treated as se. York Times Co. enunciated in New dard Liability imputing to another an exist- Sullivan, malice supra, proof of actual must, according to ing loathesome disease decid- public figure. of a Without required 572, the Restatement Torts § defamatory ing whether the evidence limited to that are held in some “be diseases stan- content should be measured repugnance .” decid- special . . . we stringent, one are satisfied dard or less cases concerned with loathesome disease ed prove defamation. failed to sexually have limited term to communi- law, ques Pennsylvania leprosy. Poly- venereal disease and Under cable publication capable is tion of whether vera is a disease unknown cythemia defamatory meaning is for by increased characterized concentra- cause instance, jury. not for the Pierce first great hemoglobin and a absolute tion of Inc., Communications, 576 Capital Cities enlarge- red attended increase in cells - Cir.), denied, (3d 502 cert. F.2d contagious neither spleen. It is ment of -, 58 170 L.Ed.2d U.S. S.Ct. repug- any way socially nor attributed Co., 441 (1978); Publishing Corabi v. Curtis conduct. nant (Pa.1971). Pa. 273 A.2d have also examined Brown’s article We ascertaining governed, We must be any context whether there determine particular capa whether a form of words physical disease imputation of his which the meaning by defamatory ble of the standard defamatory. Dr. Nix- might be considered Torts, announced Restatement Chuy’s condition on’s medical evaluation (1938), Pennsylvania which have courts attributed of several sentences consists adopted. Cosgrove See Studio & Camera him, of which is the sum and substance Pane, Inc. v. Pa. Shop, 182 A.2d poly- known as had a condition blood 559 of the Restate Section manufactured blood vera which cythemia provides: ment way” other’s “get in each cells that it defamatory A communication is embolisms.22 form reputation tends so to harm of anoth- er as to lower him in the estimation absolutely nothing in the perceive We persons or to deter community third which Nixon attributed statements associating dealing with him. In this defamatory. can be construed era, knowl- greater medical with its carefully

We scrutinized modern with health and the comment attributed to Dr. edge Nixon and societal concern 22. The wealthy the attention of a more sustained and wider lating public article attributed professional ing: ion). Co. 1975, Vera,” “One sician, other’s embolisms, or emboli.” Although 18 L.Ed.2d 1094 to his audience. Butts, pertinent do not make them said “is way. athlete’s contractual Dr. James playing performance consequences It’s a definite threat the marital statements to Dr. Nixon are the the blood See also Curtis U.S. Nixon, (1967) 130, 154-55, cells in public figures, of troubles of the (plurality Brown’s Polycythemia troubles Eagles’ phy- get commands Publishing 87 S.Ct. to form in each follow- news opin- re- The next cavity found that Dr. Nixon added. cleared,” known,” according given anti-coagulants emboli, Subsequent be give “With such a trouble.” Polycythemia for him to good put it often. ****** ^[******] and it him in the doctor would be thing he x-rays give pre-disposition to embolisms If he presence had a we said. Vera blood to Dr. Nixon. showed doesn’t, unwise heard the hospital. “The wise pulmonary of the disease . the Red Cross . fluid in the could he . “source play *16 family There, thing would “Chuy embolism. embolism football,” get known it was doctor chest into un- or it, if he Even did raise care, diseases and medical treat- testified at medical candidly freely in ment are discussed Eagles’ general spoke trial that he circles, home, in social and in media. manager “told January in 1970 and him example, malignancy For suffered definitely not be back to would [he] States, wife the President of United play.” February In Dr. John W. Per- senator, prominent byor by a United States Chuy’s ry, personal physician who was also page public a movie is front news. star No engage “that advised he should not in today one treats such communication as such physical activity, serious strenuous or damaging reputation esteem wrestling his and football.” Because career in community. the unfortunate victim the then, over player as a football and the public’s today reaction to a victim The published article Brown was not until usually sympathy cancer is one rather April Chuy could not recover scorn, support rejection. not than Per- reflecting adversely comments in the article or sons afflicted with cancer other serious profession. on fitness for that As com- diseases, his debilitating whether or ulti- mately fatal, frequently carry per- example, on their c explains, ment to section 573 or professional today’s sonal activities imputation character must be such enlightened world in normal fashion and disparage pursuit as to other any deprecatory without reflection whatso- business, trade, or profession this office Defamatory ever. are statements those an or tend to in it. Therefore harm him which or person’s good discredit debase a public of a offi- imputation of misconduct standing up public name and or hold him to not expired cer whose term has does come ridicule, contempt. hatred or McAndrew Section. within the rule stated this Republican Publishing Company, Scranton Pa.Super. 67 A.2d rev’d on possibility The dissent also discusses the grounds other at 364 Pa. 72 A.2d 780 reported in Brown’s arti- that the remarks crippling The incurrence of a or Chuy’s possible opportunities cle harmed but, fatal illness is indeed unfortunate un- sportscaster. Chuy did not make this loathsome, less disease is it does not argument appeal, we find no evi- on tarnish the reputation victim’s or cause oth- any professional dence in this record of to spurn ers him. We con- interest him as a broadcaster. suggests, n. dissent clude as a matter of law that the state- might claim for rest defamation attributed to Dr. Nixon were ments section 573 of the Restatement capable defamatory meaning.23 (1977), of Torts which concerns slanderous court will be judgment district imputations trade, affecting business, pro- fession, parties bear own affirmed. The their office. It is not clear that raised argument cross-appeal. his costs'. separate statement, review, Judge just including In litigant appellate Aldisert full and dissents, explaining diversity majority that this is a case in banc consideration whenever a diversity necessary. Here, majority and that he it believes the court deem cases should not Hence, rehearing any support position be heard in banc. voted banc. dis- of his proposals procedure notes various cussion of our banc is irrelevant restrict eliminate diversity jurisdiction to the issues. federal courts. Congress, however, yet has not fit seen to re- case, moreover, particular impor- This has *17 diversity jurisdiction move from the federal many diversity cases A tance that lack. deci- courts, Congress acts, parties and until defamatory meaning sion about is indeed made right diversity jurisdiction have the to invoke here under state law. law But because the they though may even have an alternative fo- defamation demands the accommodation particular, rum. the defendant in this personal reputation case interest and an interest voluntarily did not discussion, enter the vigorous public federal courts full this area consciously jurisdiction. did not invite federal of law has first amendment overtones. The duty adjudicate amendment, It remains our example, to continue to first dictates diversity congressional proof cases the absence of standards of as to some elements defa- legislation contrary give to the and to mation. each DUSEN, Judge, dissenting Circuit

VAN X part: Yes No majority’s from I dissent respectfully Question no, 7 is If the answer to then opinion V of its that part conclusion in skip questions through and please plaintiff’s motion district court’s denial you that inform the Marshal have com- the defamation count pleted your for new trial on deliberations.

should affirmed because (a) proved by evidence plaintiff “8. Has clear and did. Dr. convincing evidence that Nixon’s count as a of law. support that matter Chuy about Mr. tended statements The evidence at trial indi- uncontroverted Chuy in his injure Mr. business or cated describes a number polycythemia reputation profession, by harm his involving excessive different conditions the estimation lowering him in polycythemia is not' red blood cells. Stress to deter community, or others condition, poly- life-threatening while associating dealing from with cythemia potentially vera is fatal. All doc- him? having Mr. examined tors who testified X definitely suf- Chuy that he never agreed Yes No vera. polycythemia fered from 8(a) No, Question If the answer to then qualified Despite Perry’s Dr. assurances Question skip Question 8(b) go on to Chuy not indicate that that his records did vera, a potentially fatal polycythemia (b) 8(a) Yes, If the answer has disease, that he testified believed Chuy Dr. by proved the plaintiff clear and publicized diagno- Nixon would not have his convincing Hugh evidence 82; 349a). (N.T. Chuy testi- sis unless true publication Brown understood just (id). snapped” fied that his “mind statements about Dr. Nixon’s Mr. office, Perry’s Chuy injure Even Mr. Chuy Chuy while in Dr. would tend to Mr. profession, to harm his business or (N.T. 83-84; emotionally broke 350a- down lowering by him in reputation 51a). Chuy Afterwards became a “mental community estimation wreck,” ensued, and his marital difficulties to deter others from association or 84-88; (N.T. physical worsened condition dealing with him? 351a-55a). before elapsed months Several ” Perry’s under put Mr. himself Dr. x tests, care which dis- and submitted No Yes proved polycythemia vera. the existence found, interrogato- The in answer to by ry plaintiff proved clear ques- following The answered Nixon convincing that Dr. evidence inten- tions: Don tionally Mr. Brown that told proved by “7. Has the clear suffering polycythemia vera (App. from convincing evidence that Dr. Nixon 968a). jury was also asked to deter- intentionally Hugh told Brown that Mr. of Dr. Nixon’s mine whether all statements suffering article, quoted newspaper when tak- injure together, en tended to Mr. Chuy’s vera? Also, questions 6(a) X answered and' (b) as follows: No Yes plaintiff proved by pre- “6. Has the a fair (b) their virtue of relation- ponderance of the evidence that: right ship Dr. Nixon had the control any (a) Eagles exerted actual control statements the substance Nixon to over the substance of Dr. Nix- statements physical concerning press condition concerning press physical con- Eagles players? Eagles players? dition of X *18 No Yes 1284 938a).

reputation Finally, capable defamatory meaning. tion is of a (App. Id.; Shop, Cosgrove was asked whether Mr. Brown understood Studio Camera Inc. & Pane, 314, 751, 318, v. publication of 408 Pa. 182 A.2d 753 Dr. Nixon’s statements (1962) (citing of Torts injure Chuy’s reputation. Mr. Restatement would tend to 614(1)). 8(a), § jury, response question an- affirmatively of swered that dissemination Hugh Philadelphia Brown’s column injure Dr. Nixon’s remarks tended to Mr. 1970, April 9, reported Bulletin on that a Chuy’s reputation. Dr. Harrell had Don examined diagnosed a pulmonary embolism and rec- Pennsylvania, In defamation claims are longer participate ommended that no governed long established law common sports pro in contact such as football and standards, proof as well as burden of rules wrestling. report This Harrell’s ex- statute, prescribed 12 Pa.Stat.Ann. amination was uncontroverted in the rec- (Purdon Supp.1978). 1584a Plaintiffs § truth, ord. The which did not prove the defamatory must first character deny, predisposition his to embo- particular communications. The Penn- lisms dictated retirement from football. sylvania Supreme adopted Court has article, In the quoted same Dr. Nixon was definition of a defamatory communication confirming diagnosis Dr. Harrell’s as contained in the First Restatement addition, In recommendation. the article Torts: quotes paraphrases assessment defamatory “A communication is if it polycythemia Dr. Nixon that tends so to reputation harm the of anoth- vera, which involved the probability er as to lower him in the estimation of single formation of emboli. This statement community or persons to deter third was false. The issue is whether the untrue associating dealing from or with him.” remark, against set backdrop Co., v. Publishing 432, Corabi Curtis 441 Pa. article, accurate information in the was ca- 442, 899, (1971), 273 A.2d 904 quoting Re- pable is, defamatory meaning: Also, (1938).2 statement of Torts 559 § the meaning that would “so tend to harm the Pennsylvania Supreme Court has shown a reputation [Chuy] lower as to him the protecting concern for business interests in community estimation or deter Corabi, its definition of libel. In 441 Pa. at persons associating dealing third from or 442, 904, 273 A.2d at the court said: with him." libel “A is a maliciously written or print- Reading entirety, the article in its a read- publication ed which tends to blacken a might er polycythe- have understood that person’s reputation expose or to him to mia vera was the direct cause of Mr. hatred, public contempt ridicule, or to forced, premature pro retirement injure him in his or profession.” business football, might have understood (Emphasis added.)3 poten- vera learned that instance, In the first the trial court must tially imputation Where of a fatal. determine particular whether a communica- physical explicitly fatal disease is related 2. Imputations revised Second Affecting Restatement retains in- “§ 573. Slanderous tact Trade, First Business, Restatement’s definition of de- Conduct or Profession. famatory meaning. Restatement falsely privilege “One who and without (1977). § Torts 559 so, publishes do which ascribes to a slander conduct, another or a condi- characteristics above-quoted language appears also proper incompatible tion conduct of with the Pennsylvania these Messenger decisions: Volomino v. trade, business, profession his lawful [or] Co., 611, 613, Pub. 410 Pa. 189 A.2d . is liable to the other.” 873, (1963); Elkins, Bogash 874-75 v. 405 Pa. Cosgrove Shop, See Studio Inc. v. & Camera 437, 439, 677, (1962); Mengel 176 A.2d 678 Pane, A.2d 408 Pa. Reading Co., Eagle 370-71, 241 Pa. 88 A. Morthimer, (1962); Fegley Pa.Super. (1913). addition, Pennsylvania 56-57, 202 A.2d Supreme has followed 573 of the Re- Court Torts, provides; statement of which *19 “recipient” within the meaning Pennsyl- communication allegedly defamatory demise, spoken his business to a person’s professional Defamatory a vania words law. weakened. For seriously has been stature in a col- newspaper reporter for attribution just possibility, name one it is example, to communicated not umn should deemed ath- professional for retired not uncommon general reporter but also to alone to opportuni- professional to be offered letes jury The readership newspaper. of the advertising, or or in sportscasting, ties in have been asked whether this case should other, sports. Those less strenuous even Philadelphia Bul- average reader of the approach who would otherwise persons Mr.. as letin understood Dr. Nixon’s statements might be de- opportunities with such harming reputation.5 Chuy’s See Sellers dealing with him associating terred from Time, Inc., (3d 423 F.2d 889-90 Cir. they thought if professional capacity in this 1970). suffering potentially from a that he was Clearly personal comprehen- Mr. Brown’s I It is in this context that fatal disease. publication of Dr. sion of the effect of imputation to Dr. Nixon’s conclude that corre- Nixon’s statements need not have potentially fatal illness Don average reader’s actual sponded with the conveying as might have been understood understanding. contrary answers to meaning.4 defamatory 8(a) 8(b) interrogatories indicate charged with determin- jury must be defamatory poten- jury understood proved that the “re- ing whether differently tial of Dr. Nixon’s statements understood it cipient” of the communication jury’s finding that from Mr. Brown. The defamatory. Pa.Stat.Ann. as Chuy’s Mr. the statements tended to harm Supp.1978). The 1584a(l)(d) (Purdon’s § repre- reputation may implicitly well have to consider charged district court jurors’ understanding own sented the recipient and to con- Hugh Brown as average perception readers or their of how understood that personally sider whether he statements would publication average of Dr. Nixon’s readers would have under- other (935a, 938a-39a). sum, Don harm cause the statements. I conclude stood 8(a) split 8(b) into interrogatories submit- that the district court erred not jury’s distinguished between under- as to whether ting question understanding standing Mr. Brown’s average understood Dr. Nixon’s reader meaning of Dr. Nixon’s statements. context of the arti- statements taken in the profes- injure Mr. tending cle as erred in I believe that the district court This error reputation.6 as the relevant sional necessitates treating sportswriter speaker liable for libel ders as well as I false state- conclude that Dr. Nixon’s defamatory meaning, capable Thus, ment was revelations to a slander. a news source’s reporter properly that it was so understood nor that it was the libelous when treated as are proximate any damages corollary, cause of actual sus- printed evening paper. As a by Chuy. tained Don See Restatement recipients and the the reporter the libel are its readers of d; §§621, (Second) of Torts comment § recipient id. of the slander. is the 622A. 9(a) questions following 6. The answers to sued, newspaper has not been X 5. Because the (b) improbable that the would make it not republica- action for do not view this as a libel question liability for defamation have found defamatory I con- of a remark. Nor do tion charge 8(b) properly and the had been worded newspaper agent for the strue the average reader’s made clear that My propagating statements. Dr. Nixon’s understanding Dr. Nixon’s statement newspaper readership that the view controlling: “recipient,” not Mr. Brown to relevant spoken, plaintiff proved by (a) the words were is bolstered clear and whom the Restatement’s treatment third Has the “9. publication convincing nat- evidence that it was the person. 577 of the probable consequence In comment f to ural and of Dr. (1977), view Restatement of Torts making that to Mr. Nixon’s statement expressed intent that that an individual’s it would direct Brown that come to the writing, fol- slanderous words be reduced to Chuy? plaintiff, Donald attention embodiment, subsequent their ren- lowed ALDISERT, Judge, Circuit defamation claim Statement *20 plaintiff’s remand on DUSEN, Judge, with whom Circuit VAN my view. joins. a If the retrial that finds on What is not a divides this court matter of average polycythe- that reader would learn significance. precedential institutional or debilitating mia vera that he was so would disagreement Nor is it over the choice of a Chuy associating cease with or not consider controlling legal precept, interpretation position sports- him for a such as that of thereof, of application precept or the caster, statement then Dr. Nixon’s would be chosen to the interpreted facts at hand. defamatory.7 I believe court is Rather, on a prediction. this court divides required by this to decide that record Dr. The majority guess an educated offers as to capable of lay Nixon’s statement is such Supreme what the Pennsylvania Court understanding. readership facts; would do if the same faced with remand, plaintiff arguing for a dissenters offer This is the theirs. nature disputed also court’s district conclusion diversity of cases in federal courts of “public Chuy figure” Don was a and appeals. proof claimed that his burden need not opinions case are impressive required produce him to clear and expressions thoughtful analysis and care- convincing major- concur in evidence. I ful craftsmanship, they but are no more ity’s conclusion “pub- that Don was a legal than essays without sig- institutional figure” lic who must meet a constitutionally They “performative nificance. are ut- higher proof mandated standard on the terances,” to J. use Professor L. Austin’s issue of actual than malice other defamed description appellate opin- of an orthodox plaintiffs.8 ion. opinion the court has no con- I would remand for new trial trolling precedential a limited value to because the Pennsylvania judicial system defamation complaint. claim is free to ac-

cept reject any analysis or of state law pronounced by court. a federal SEITZ, Judge, GIBBONS, Chief Cir- cuit Judge, join foregoing opinion majority I fail to see a of this how court’s dissenting in part opinion from judges could have in bane ordered consider- court. For forth in separate reasons set ation of panel’s while respect- decision statement, ALDISERT, Judge, joins Circuit ing spirit both the letter Fed.R. dissent, in this App.P. 35: x language matiori under from the Restate- Yes No quoted page ment of Torts at 1284 above. Thus, persuaded by majority’s I am not effort to confine defamation attribution of 9(a) No, If the answer to Question leprosy. illness to venereal diseases or skip 9(b). Question (b) 9(a) Yes, If the answer to Question public figure may proves 8. A plaintiff proved by has recover clear and defamatory convincing statement was made with evidence that under all the “ is, knowledge facts and ‘actual with circumstances of this case malice’ —that you be, making disregard find them it was false Nixon’s or with reckless that statement Mr. Brown constituted whether it was not.” New false or York Times shocking outrageous Sullivan, 254, 279-80, or conduct on his Co. v. 376 U.S. 84 S.Ct. part, decency, case, exceeded the bounds of 11 L.Ed.2d 686 In this respect probable natural its Dr. Nixon admitted that did not have impact plaintiff, Chuy? Donald polycythemia jury found, “by vera and the evidence,” convincing clear and in answer X question intentionally Nixon told “that Dr. Yes No Hugh suffering Brown that Mr. Thus, finding a vera.” actual It knowing- seems clear that defendant who properly malice was the district made court ly spread rumor that inaccurate special interrogatory without submission of being presidency corpora- considered for of a jury. tion had cancer could be found liable for defa- congestion, Because of this 1970 to 1977. [Rehearing in is not favored banc] exceptions, (1) longer, with few except takes ordinarily will not be ordered it now case in a federal dispose full court is of a civil consideration when for a state maintain uniform- than it does necessary to secure or district court decisions, (2) pro- comparable when the dispose of its ity system exceptional question ceeding involves case.

importance. E3792, July Congressional Record are, as that the issues Although I concede reasons, I the court believe For these states, “interesting,” I cannot the court *21 rehearing in I granted banc. improvidently question “a presents agree appeal that this dissenting opinion which reflects join in the deserving in exceptional importance” original panel. views consideration.1 banc Moreover, full court energies of the diversity case at committed to

have been ques- seriously has Congress time when retaining óf federal advisability

tioned the February

jurisdiction diversity cases. On 266-133, the House by a vote of have abol-

passed H.R. 9622 which would jurisdiction. companion A diversity ished MILLS, INC., Appellant, MANNINGTON Bill, 2389,was also introduced in S. Senate pro- Congress. A more moderate the 95th CORPORATION, CONGOLEUM diversity would have limited posal, S. Appellee. jurisdiction by preventing from home state. bringing diversity suit in his No. 78-1845. was unable A conference committee Appeals, United States Court of legislation agreement, achieve so Third Circuit. Quarterly 3055 Congressional enacted. Nevertheless, 21, 1978). (October Professor Argued Jan. General, Meador, Attorney Assistant Daniel April Decided before the House Committee testified legislation Department supports the Justice diversity jur-

which would restrict or reduce

isdiction. Professor Meador stated legislation necessary

such judiciary adjudi- equip the federal economically the expeditiously

cate

unprecedented volume of civil cases. illusory.

This increase in volume is not filings in 1977 was

The number civil

130,567; over percent an increase of 49.5 when the last in-

the number judges Because

crease in occurred. Trial Act of federal Speedy crimi-

judges giving priority been the civil calen- expense

nal cases at the result, of civil the number

dar. As a percent increased 63.3 pending

cases complete agree- solely There is issue. on a state law court divides that the will be noted 1. It considerations. first amendment on the ment notes severe distress employer ness of the and not for the serv- horror, grief, anguish, fright, worry, mental personal purposes. Railway ant’s Norton v. and other emotional disturbances. The ex- Inc., (3d Express Agency, 412 F.2d by is to severity tent of the be measured 1969); Wright, F.Supp. Cir. Mauk any ex- whether “reasonable man could be (M.D.Pa.1973). The 965—66 existence pected to endure it.” Restatement relationship con- of master-servant Torts, 46, j. jury comment this § scope employment without the are duct case was asked the to determine whether Norton, supra; jury. factual issues for the probable” impact “natural and Nix- Dr. Nichols, Anzenberger v. 413 Pa. on’s statements the rendered statements be- A.2d yond the it decency respond- bounds of jury specifically in this case found Thus, affirmatively. implicit ed Eagles right the to that the control and jury’s its affirmative answer is determina- actually did control the substance of Dr. person ordinary sensibility tion that a press concerning Nixon’s to the statements could not have withstood the distress with- physical players. the condition of the team’s anguish out severe mental and that Although Eagles may the be correct that feign anxiety. did not his mental performed surgical as Nixon duties by Eagles None of the cases cited the an from independent contractor immune requires as an element of the cause of ac- control, jury properly team in- was tion that the victim of infliction of emotion- structed focus on Dr. Nixon’s role as al distress seek by to alleviate that distress press spokesman players’ sta- about medical immediate medical treatment or verifica- ample tus. There evidence that in this tion.14 The district court instructed function, limited was subject Dr. Nixon they found that unreason- Moreover, control team officials. ably injuries, they failed to minimize his frequency performance of Dr. Nixon’s accordingly damage could reduce his award. this role established that he did it within correctly We believe these instructions dis- scope employment. of his tinguished severity between of distress We prop- conclude that the district court liability as an element of failure of erly against Eagles, rendered a verdict reasonably mitigate damages. the victim holding vicariously responsible them for Dr. The jury properly therefore was instructed Nixon’s tortious In statement to Brown. so on the significance Chuy’s reluctance to doing, reject any suggestion by we the Ea- undergo extensive testing medical after master, gles that held be liable for sustaining emotional distress. tort, participate this must it either arguendo, Even assuming, exhibit scienter. tort, Dr. Nixon committed a they contend should not have been held IV. PUNITIVE DAMAGES vicariously responsible liable as a master the torts of a The district court Pennsylvania servant. Under instructed law, punitive damages could relationship penal- master-servant it award as a is estab employer ty lished if the power had the defendant deterrent likeminded, control and direct the others might conduct of the em who if the ployee. A master is liable damages for the torts of concluded that such appro- were his servant if the priate. latter’s tortious conduct advance several was within the scope employment, of his i. grounds rejecting jury’s award of example, Manchester, 14. For in Forster v. su- the emotional distress caused surveil- pra, woman, Eagles, lance, Pennsylvania Supreme cited who not Court did expected injuries alleging deny to file a suit an the reasonableness of the victim’s reac- subjected automobile accident was to surveil- tion but conduct rather excused defendant’s public places reasonable, lance socially in order to determine the valuable and and hence injuries. recovery denying extent of her outrageous. First, of punitive damages. eial sanction That they, damages in case. punitive damages pe- cannot be the dual function of punitive contend that sanction serves past constituting ag- a 46 tort because liabili- conduct nalizing awarded for interests, must be extreme and ty-producing gravated conduct another’s violation of Enhancing ver- outrageous by definition. such behavior in deterring and of punitive damages would their dict with future.