Gordon v. Lancaster Osteopathic Hospital Ass'n

489 A.2d 1364, 340 Pa. Super. 253, 1985 Pa. Super. LEXIS 5916

• Court: Supreme Court of Pennsylvania
• Decided: February 13, 1985
• Docket: 1014
• Status: Published

Opinions

OLSZEWSKI, Judge:

This appeal follows an order sustaining appellees’ preliminary objections in the nature of demurrers and dismissing counts 1 through 16, inclusive, of the complaint.¹

Appellant, C. Ivan Gordon, D.O., practiced as a pathologist at the Lancaster Osteopathic Hospital (“LOH”) from March of 1976 until October of 1980. From July 1, 1978 until June 30, 1980, appellant was employed by LOH; the terms of employment were defined by a written contract, renewable annually for a one year term.² On April 29, 1980 appellee Joseph Gordon, Executive Director of LOH, notified appellant of the hospital’s intent not to renew the contract. On October 31, 1980, appellant delivered a letter of resignation to Dr. Gordon, effective as of that date.

This action arose as a consequence of a series of letters written by appellees Berel B. Arrow, D.O., Norman M. Axelrod, D.O., and G. Richard Hartz, D.O. to the Executive Director, the President of the Medical Staff and members of the Board of Directors of LOH in the early spring of 1980. These letters stated in pertinent part:

[W]e are totally unhappy and would like to present a vote of no confidence in Dr. Ivan Gordon. We all feel that we lack trust in the reporting of Dr. Gordon. We feel that the Pathology Department should be stronger as the institution grows. At this point, we would not like to go into absolute detail, but just inform you of the above opinion.

Letter of February 14, 1980. Reproduced record at 72a.

[T]he department concludes that because of the difficulty in communication and lack of confidence in Dr. Ivan Gordon’s work, that we regretfully recommend to you that under no circumstances shall Dr. Ivan Gordon accede the chairmanship of the department of Pathology at the Lancaster Osteopathic Hospital, and we further feel that attempts at recruitment of a pathologist should be actively carried out by the institution.

Letter of March 7, 1980. Reproduced record at 73a.

On March 10, 1980 a letter from Dr. Hartz to the Executive Board stated: “A resolution of no confidence in the above individual was passed by a unanimous vote.” Reproduced record at 74a. On October 10, 1980 a letter from Dr. Arrow to the Grievance and Ethics Committee stated: “... Dr. Gordon’s attitude and performance over the past several years warrants our opinion. We still feel that a vote of ‘no confidence’ is indicated.” Reproduced record at 83a.

Appellant alleges that these letters and other communications to the Executive Board were written in retaliation for his attempts to improve the quality of medical care provided by LOH. In the fall of 1979, appellant, as part of his duties as Chairman of the Professional Development Committee had gained approval of a plan to increase the number of specialists at LOH over a period of five years. Appellant charges that appellee-physicians resisted implementation of that plan based upon fears of increased competition among specialists at LOH. He further contends that appellee-physicians were fearful of and disturbed by his accurate and proper surgical tissue and autopsy reports which documented appellee-physicians’ “improper medical procedures and the substandard care provided to their patients.” Reproduced record at 14a.

Appellant’s complaint levels seventeen charges including counts in libel and slander, intentional interference with employment, intentional interference with future economic opportunities, wrongful termination, violation of common law and procedural due process, corporate negligence, intentional infliction of emotional distress, restraint of trade, civil conspiracy, and a claim for breach of contract. Following appellees’ preliminary objections in the nature of demurrers, the court below dismissed all counts now before us. This appeal follows.

Appellant raises nine issues in this appeal. We address them seriatim. First, appellant argues that the lower court erred in finding the publications not defamatory as a matter of law. We hold that the communications were not capable of a defamatory meaning.

On appeal from an order sustaining preliminary objections in the nature of demurrers, this Court is concerned only with determining the legal sufficiency of appellant’s complaint. Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969). We must confine our analysis to the complaint and decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Id.; D’Antona v. Hampton Grinding Wheel, 225 Pa.Super. 120, 310 A.2d 307 (1973).

We begin our analysis with recognition that a complaint alleging defamation should not be dismissed upon a preliminary objection in the nature of a demurrer unless the court is certain that the communication is incapable of bearing a defamatory meaning. Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. 427, 389 A.2d 1197 (1978). The court, in making this determination, must accept as true all well-pleaded material facts alleged in the complaint, as well as all inferences reasonably deducible therefrom. Id. Under the circumstances of this case, we recognize that a communication is defamatory which “ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession.” Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 463, 442 A.2d 213, 216 (1981), cert. denied 457 U.S. 1134, 102 , 73 L.Ed.2d 1351 (1982), quoting Restatement (Second) of Torts § 573 (1977). The comment to section 573 elaborates:

The imputation must be of such a character as to disparage the other in his business, trade, profession or office or tend to harm him in it____ When peculiar skill or ability is necessary, an imputation that attributes a lack of skill or ability tends to harm the other in his business or profession.

Restatement (Second) of Torts § 573, comment (c) (1977).

If the court has any doubt that the communication is defamatory, then the issue must be given to the jury for them to determine whether the defamatory meaning was understood by the recipient. Vitteck, 256 Pa.Super. at 431, 389 A.2d at 1199. The court must be guided by consideration of the expertise and knowledge of those to whom the publication is circulated, and by consideration of the effect it is fairly calculated to produce. Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). “The test is ... the impression it would naturally engender in the minds of the average persons ... among whom it is intended to circulate.” Id., 441 Pa. at 447, 273 A.2d at 907 (citation omitted). Here, those ‘average persons’ are appellant’s fellow physicians and the professional community at LOH, particularly persons involved with personnel decisions. Even where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, the issue must proceed to the jury. Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981); Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980).

We agree with the lower court which held that the words complained of by appellant bear no reasonable interpretation which would render them defamatory. The phrases “a vote of no confidence”, “lack of trust in the reporting ability of [appellant]”, “lack of confidence in [appellant’s] work”, and “[appellant’s] attitude and performance over the past several years ... [indicates] ... a vote of ‘no confidence’ ”, if believed, do not impute a charge of incompetency or unfitness. Compare Miller v. Hubbard, 205 Pa.Super. 111, 207 A.2d 913 (1965) (letter describing transaction in which plaintiff was not involved held to state cause of action in defamation); Agency Services, Inc. v. Reiter, 513 F.Supp. 586 (E.D.Pa.1981) (letter imputing dishonesty); Rannels v. S.E. Nichols, Inc., 591 F.2d 242 (3d Cir.1979) (words imputing fraud); Altoona Clay Products v. Dun & Bradstreet, 367 F.2d 625 (3d Cir.1966) (publication imputing insolvency).

We agree with the court below that, even under the assumption that appellees were possessed of the motives and malice towards appellant as alleged, the letters state no more than in the most general terms that appellees, speaking for their departments, lacked confidence in appellant’s professional ability and could not recommend that his contract be renewed.³ As stated by the lower court, appellees “cunningly or unwittingly stopped short of committing acts susceptible of defamatory meaning.” Lower court opinion at 10.⁴

We believe that the only reasonable interpretation of these letters is that they are expressions of opinions. Opinion without more is not actionable libel. Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962); see also Restatement (Second) of Torts § 566 (1977) (a statement in the form of an opinion is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion) adopted in Braig v. Field Communications, 310 Pa.Super. 569, 456 A.2d 1366 (1983). While the record shows that appellees specifically refused to elaborate on the basis of their opinion in response to a request from the Executive Board, we cannot say, as a matter of law, that the letters imply undisclosed defamatory facts.⁵

Further, our court has held that communications which may annoy or embarass a person are not sufficient as a matter of law to create an action in defamation. Bogash; Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980); Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 229 A.2d 733 (1967) (plaintiff must have suffered that kind of harm which has grievously fractured his standing in the community). We must conclude, after review of the context, identity of the parties and the context of the communications that the letters were not defamatory.⁶

Appellant next argues that the lower court erred in holding that his claim in defamation against Joseph Gordon was insufficient as a matter of law. The letter complained of requested that appellant return books, keys and reimburse LOH for personal telephone calls. Reproduced record at 87a. Appellant argues that these requests suggest that he is a thief. In light of the analysis above, we agree with the lower court that the letter bears no reasonable defamatory interpretation.

Appellant next alleges that the lower court erred in holding that his complaint in intentional interference with prospective contractual relations was insufficient as a matter of law. We agree.

Our courts have recognized that a cause of action may exist for interference with prospective contractual relations. Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971) quoting Restatement of Torts § 766.⁷ Glenn delineated the elements of this tort which must be present to state a sufficient cause of action: the complaint must show a prospective contractual relation between appellant and LOH; the purpose or intent to harm appellant by preventing the relationship from occurring; the absence of privilege or justification on the part of appellees; the occurrence of actual harm or damage to appellant as a result of appellees’ conduct. Glenn, 441 Pa. at 479-80, 272 A.2d at 898; see also Adler, Barish, Daniels, Levin, etc. v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978) (adopting Restatement (Second) Torts § 766 (1977)).

In the instant case, the complaint alleges that, but for the communications to the Executive Board, appellant had every expectation of renewal of his contract. Reproduced record at 21a, 25a, 27a, 30a, 33a-34a, and 37a. The complaint further alleges that the communications were intended to harm appellant by preventing his renewal of contract with LOH.

As to the absence of justification or privilege for the communications, appellant, in counts 2-5 of the complaint, has alleged that the letters were defamatory. While we today hold that the letters, as a matter of law, do not sustain a cause of action in libel, we nevertheless believe that substantial questions have been raised which may at trial negate any asserted justification or privilege. Appellant argues that the letters were unjustified in that his work at all times was properly performed. Reproduced record at 13a. Appellant has raised a question of fact as to whether the letters were privileged, in light of the censor of appellees by the Medical Staff Executive Committee. Reproduced record at 16a. Further, appellant alleges that, under the Medical Staff Constitution and By-laws, “individual physicians at the department level do not have the responsibility or legal function to review the professional abilities of other professional staff members____” Id. These allegations raise questions as to the existence and scope of any privilege which must go to the jury as finder of fact. Compare Burke v. Triangle Publications, Inc., 225 Pa.Super. 272, 302 A.2d 408 (1973) (issue whether alleged defamatory communication is within scope of privilege is question of fact). Finally, appellant has alleged lost wages as actual harm resulting from the interference. Therefore, while expressing no view as to the merits of the claim, we hold that preliminary objections as to counts 8-11 were improperly sustained.

Appellant next alleges that the lower court erred in dismissing his claim for violation of procedural due process. We agree with the court below that none of appellant’s rights of due process were violated. The employment contract provided for compulsory arbitration, of which appellant chose not to avail himself. That arbitration would have provided appellant with full due process protection.⁸ Instead, appellant chose voluntarily to terminate his employment with LOH. See Chowdhury v. Reading Hospital and Medical Center, 520 F.Supp. 134 (E.D.Pa.1981), rev’d on other grounds, 677 F.2d 317 (3d Cir.1982).

Appellant next alleges that the lower court erred in dismissing his claim for violation of his right to continued employment at LOH. We agree with the court that, absent contractual or statutory provisions to the contrary, an employee has no legal recourse against his employer for dismissal unless the dismissal in some way offended a manifest public policy. See Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). We note that appellant’s brief presents an argument based in public policy. We are not at liberty to consider that argument insofar as our review is limited to the content of the complaint. Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969); D’Antona v. Hampton Grinding Wheel, 225 Pa.Super. 120, 310 A.2d 307 (1973).

Appellant next alleges that the lower court erred in dismissing his action in negligence against LOH for its failure to insure a fair procedure as required by its employment contract, the staff by-laws and state law. We hold that the count was properly dismissed. While we recognize that this count pleads a cause of action separate from appellant’s claim under due process, appellant’s failure to avail himself of proffered arbitration procedures persuades us that dismissal was correct.

Appellant next alleges that the lower court erred in dismissing his action for outrageous conduct and intentional infliction of emotional distress. We hold that the count was properly dismissed. Recovery for intentional infliction of emotional distress will be allowed where there is conduct “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society”. Restatement (Second) of Torts § 46, comment (d) (1977); see Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981) (altering medical records to impute criminal acts); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir.1979) (reckless diagnosis of fatal disease); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) (mishandling of corpse). The publication of letters of ‘no confidence’, as a matter of law, do not rise to this level of atrocity.

Appellant next alleges that the lower court erred in dismissing his action for conspiracy in restraint of trade. We agree with the court below that this count was properly dismissed. Appellant was free to seek employment at any other hospital or medically related institution following his termination of employment at LOH.

Finally, appellant alleges that the lower court erred in dismissing his actions for conspiracy to defame and conspiracy to interfere with contractual relations. In light of our holding that the letters were incapable of any reasonable defamatory meaning, the action as to conspiracy to defame must fall.

We reverse the order of the lower court dismissing count 7 of the complaint, alleging a conspiracy to interfere with contractual relations. For purposes of this analysis we incorporate our discussion, supra, of the appellant’s cause of action in interference with prospective contractual relations.

A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by an unlawful means or for an unlawful purpose. A conspiracy becomes actionable when some overt act is done in pursuance of the common purpose or design held by the conspirators and actual damage results.

Baker v. Rangos, 229 Pa.Super. 333, 351, 324 A.2d 498 (1974) (citations omitted).

In the instant case, taking all facts pleaded in the complaint as true, appellant has alleged that the letters were written as the product of combined action of the physicians for the unlawful purpose of interfering with his prospective contractual relations. Appellant alleged $1,300,000 in actual damages. Therefore, sufficient facts have been alleged to allow count 7 of the complaint to proceed to trial. We cannot, at this point, accept appellees’ theory that a conspiracy cannot occur in the context of the ‘single entity’ of a hospital and its medical staff. See Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa.1976); see also Buckner, M.D. v. Lower Florida Keys Hospital District, 403 So.2d 1025 (Fla.App.1981). In the instant case, appellant has alleged that appellees did not have the responsibility or legal function to review the professional abilities of other professional staff members under the medical staff constitution and by-laws. Reproduced record at 16a. This allegation persuades us that the issue must go to trial.⁹

In conclusion, the lower court’s order as to counts 1-6, 12, and 13-16 is affirmed. The order as to counts 7-11 is reversed.

The order is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

BECK, J., concurs in the result. CIRILLO, J., files a concurring and dissenting opinion.

1 . Count 17 was voluntarily discontinued by appellant. Appellant’s brief at 1.

2 . The contract was renewed for one year on September 25, 1979. Reproduced record at 70a.

3 . Appellees mistakenly assert that the communications were privileged, citing to the Peer Review Protection Act, Act of July 20, 1974, P.L. 564, No. 193. The lower court correctly found the defense of privilege inapplicable to the resolution of preliminary objections. Had the issue proceeded to trial, the court would have determined whether the privilege applied, and the jury would have determined whether the scope of the privilege were abused. Burke v. Triangle Publications, Inc., 225 Pa.Super. 272, 302 A.2d 408 (1973).

4 . Our holding today demands a more stringent burden of production by appellant than that adopted by the federal courts pursuant to Fed.R.Civ.P. 56(c).

It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts ... [or] ... what the intentions of the parties was as shown by the facts____ Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.

S.J. Groves and Sons v. Ohio Turnpike Commission, 315 F.2d 235 (6th Cir.1963) cert. denied 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963); see also Rannels v. S.E. Nichols, Inc., 591 F.2d 242 (1979). We therefore reject the reasoning in Moyer v. Mid-Penn Bank, 48 Northumberland L.J. 182 (1976) (held, where defendant denies all averments of libel, legal issues are raised per se which can only be determined fairly by trial of the case).

5 . Reproduced record at 72a, 83a.

6 . Appellant’s allegations as to defamatory oral communications fail for want of specificity as to the content of the statements and as to the identity of the persons receiving the alleged communications. See Raneri v. Depolo, 65 Pa.Commw. 183, 441 A.2d 1373 (1982); Gross v. United Engineers and Constructors, Inc., 224 Pa.Super. 233, 302 A.2d 370 (1973).

7 . Restatement of Torts § 766 states "... one who, without a privilege to do so, induces or otherwise purposely causes a third person not to ... (b) enter into or continue a business relationship with another is liable to the other for the harm caused thereby." Id. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Yaindl v. Ingersoll Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980).

8 . By letter of April 29, 1980 LOH offered to meet with appellant under the “resolution of disputes” provision of his contract. Reproduced record at 75a.

9 . We note that the lower court did not address the 'single entity’ theory.