of partial summary judgment in Marchese, Jr.'s favor, insofar as plaintiff's cause of action is based on violation of Civil Rights, is proper, and will be ordered.
2. State Law Slander Action.
As to the part of this suit which is a tort action for slander, with jurisdiction based on diversity of citizenship, Marchese, Jr.'s motion for summary judgment is based on a claim of privilege. In Pennsylvania defamation cases, there is a qualified privilege which protects a person who communicates in good faith, without actual malice, with reasonable or probable grounds for believing his statements to be true, on a subject in which the speaker has an interest or social or moral duty, to a person having a corresponding interest or duty. Williams v. Kroger Grocery & Baking Co., 337 Pa. 17, 10 A. 2d 8 (1940). If Marchese, Jr. had probable or reasonable grounds for believing that the plaintiff was carrying a gun, he was under a duty to inform the proper authorities of that fact, and Sergeant Fair was a proper authority to whom to communicate that information. Whether the communication was privileged, therefore, depends upon whether Marchese, Jr. had reasonable grounds to believe that the statement was true, or whether, on the other hand, the statement was made with malice. The record, in this regard, presents a genuine issue of fact for trial. Marchese, Jr. in his deposition, stated that, on the day of the search, he told Sergeant Fair that he had seen plaintiff in the courthouse lounge with a bulge in the area of his left shoulder several days before; that on that occasion plaintiff and others were harassing Marchese, Jr. and other members of his family; and that a police officer, Officer Corropolese, had observed the bulge and had surmised that it probably was a gun. (Marchese, Jr. Deposition pp. 8-14) Sergeant Fair's testimony made no mention of a police officer, or of a bulge. Sergeant Fair testified only that he was told by Marchese, Jr. that Kahermanes might be carrying a gun. (Fair Deposition pp. 30-33) Officer Corropolese has not been deposed.
Plaintiff's deposition was also taken. Plaintiff denied that he had ever owned a gun; denied that the harassment incident occurred; and denied that there was a bulge, or that there were any police in the lounge to observe any bulge. (Kahermanes Deposition pp. 63-66) These conflicts in the evidence are sufficient, in themselves, to raise an issue for trial as to whether Marchese, Jr. has reasonable grounds to believe his statement was true. In addition, a claim of qualified privilege can also be defeated if it is found that Marchese, Jr.'s statement to Sergeant Fair was motivated by malice toward the plaintiff. The history of conflict within the Marchese family; Kahermanes' friendship with one faction of the family; and the fact that the incident giving rise to this suit happened at the courthouse when Kahermanes was a defendant in a criminal action and Marchese, Jr. was one of the complaining witnesses, could very well combine with a finding of no reasonable ground to believe that Kahermanes was carrying a gun, to support a conclusion that Marchese, Jr.'s statement was made maliciously. See O'Donnell v. Philadelphia Record Co., 356 Pa. 307, 315, 51 A. 2d 775, cert. denied, 332 U.S. 766, 68 S. Ct. 74, 92 L. Ed. 351 (1947).
Because there is a genuine issue of fact as to whether the communication was privileged, Marchese, Jr. is not entitled to summary judgment in his favor on the charge of defamation.
3. Jurisdictional Amount.
On this record, there is a serious question whether plaintiff has pleaded the jurisdictional amount of damages in good faith. This court has the power to determine the facts requisite to jurisdiction, Wetmore v. Rymer, 169 U.S. 115, 18 S. Ct. 293, 42 L. Ed. 682 (1898); and it is the court's duty to be vigilant to dismiss any diversity cases involving less than the jurisdictional amount in controversy. The standard to be applied in ferreting out cases involving less than ten thousand dollars in damages is the same as in a motion for a remittitur. Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971).
The record as to damages is not complete, but some things are clear. Plaintiff does not claim loss of job or promotion as a result of the slander. The publication (of the information concerning gun-carrying) was extremely limited, and the effect of it was dissipated when the search turned up no weapon. The search itself, consisting merely of a pat-down, lasted only a few seconds and it took place in a remote corridor, witnessed only by a few secretaries. Moreover, such publication as there was took place in Norristown, Pennsylvania, away from the New Jersey communities in which plaintiff lives and works.
On the present state of the record, plaintiff has sustained special damages totalling approximately $200, consisting of ambulance charges, medical bills and lost wages. He contends that the slander and search caused him to "pass out" and to suffer a "near stroke," and that these physical symptoms were accompanied by pain, suffering and nervous shock. He will, of course, have the burden to establish the causal relationship. For the present, I am assuming that he will be able to do so, although there is, as yet, no medical evidence to substantiate plaintiff's bald assertion of cause and effect. Plaintiff is also seeking punitive damages, and punitive damages are recoverable if he can prove that the slander was maliciously or recklessly published. Leppley v. Smith, 91 Pa. Super. 117 (1927). Punitive damages are to be considered in determining whether the jurisdictional amount is in issue. 1 J. Moore, Federal Practice Para. 0.93  (1972). If there is a serious deficiency in compensatory damages, however, plaintiff may not rely very heavily on punitive damages to satisfy the jurisdictional amount, for in Pennsylvania punitive damages must be reasonably related, and not disproportionate, to the amount of compensatory damages. Suflas v. Cleveland Wrecking Co., 218 F. Supp. 289 (E.D. Pa. 1963); Givens v. W.J. Gilmore Drug Co., 337 Pa. 278, 10 A. 2d 12 (1940).
Although I believe it is unlikely that plaintiff will be able to approach the requisite jurisdictional amount in damages, I will not pass judgment on that at this time. Plaintiff is forewarned, however, that in due course a pretrial conference will be scheduled and plaintiff will then be required to demonstrate, by the procedures approved in Nelson v. Keefer, supra, that he has pleaded the jurisdictional amount in good faith. Plaintiff will be required, particularly, to present medical proof of causal relationship between the slander and search and the physical harm he claims to have suffered.