*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 obtаin 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 crоss-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
contraсting
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
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 tо 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
еxisting
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 pоsture
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.
&
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 threshоld 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 оf 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 awardеd 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.
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 athlеtic 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 hаs 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 аdopted. 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
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 bеlieved 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 рolycythemia 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 Businеss, 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 whеther 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 оffer 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
mеnt 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
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 corrеct 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 сommitted 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.