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April 18, 1977


The opinion of the court was delivered by: BECKER


 I. Preliminary Statement

 This opinion addresses the post-trial motions of the defendant, The Philadelphia Eagles Football Club (Eagles), to set aside a substantial jury verdict in favor of the plaintiff, Donald Chuy, a former Eagles lineman, on claims of breach of contract and intentional infliction of mental distress. *fn1" We also consider plaintiff's motion for a new trial on his defamation claim which the jury resolved in the Eagles' favor. The unusual factual background of this case may be summarized as follows.

 On November 2, 1969, Chuy suffered a severe injury to his left shoulder while executing a downfield block in a game against the New York Giants. The full extent of Chuy's injury was not diagnosed, however, until weeks later, when it was discovered that he had developed an acute pulmonary embolism. After hospitalization and treatment the embolus was dissolved, but Chuy's career in football had been brought to an end.

 Chuy's contractual claim is set against the peculiar practice, in effect in the National Football League at the time of the operative events of this case, whereby players would sign on the same day two or more separate NFL Standard Player Contract forms for two or more successive years. Thus, on June 16, 1969, Chuy signed three separate documents bearing respectively the dates of the 1969, 1970, and 1971 seasons. Each contract provided for $30,000 compensation and guaranteed him full salary for the contract term in case of a disabling football related injury. The Eagles maintain that this arrangement was for three separate one-year contracts conditioned upon Chuy's making the team each year. Chuy on the other hand contends that his dealings with the Eagles created a three-year contract and that, because the Eagles had not paid him for the 1970 and 1971 seasons, they owe him $60,000. Finding ambiguity in the documents taken together, we admitted parol evidence pertaining to the negotiations between the parties. The jury believed Chuy's version of the facts and awarded him the sought-for $60,000, less the sum of $15,000 which the Eagles had loaned to him and which he had not repaid.

 The bizarre aspect of the case lies in the facts underlying Chuy's claim for intentional infliction of mental distress. After Chuy had recovered from the acute phase of his injury and had been examined by Eagles' physicians to determine his ability to play again, he returned to his home in Los Angeles, California. Chuy's condition was a matter of interest to Philadelphia sports fans and sports writers, particularly because he had been the subject of a prominent trade the previous year under the terms of which he had been brought to the Eagles and Bob Brown, an All-American All-Pro Lineman, had been sent to the Los Angeles Rams. Accordingly, Hugh Brown, a Philadelphia Bulletin sports writer, interviewed Eagles General Manager Palmer "Pete" Retzlaff and Eagles Team physician Dr. James Nixon on the matter. What resulted was a story in the Bulletin and, via the wire services in newspapers all over America, reporting that Dr. Nixon had stated that Chuy was suffering from a rare blood disease known as polycythemia vera which would prevent him from playing professional football again. *fn2" Chuy read the article and became panic stricken. He consulted his personal physician, Dr. John Perry, also team physician for the Los Angeles Rams. Dr. Perry explained the serious nature of polycythemia vera, and though he counseled Chuy that in his opinion he was not suffering from the disease and suggested tests to rule it out conclusively. Chuy was inconsolable. Chuy testified to experiencing thereafter a lengthy period of extreme emotional anguish and torment during which he anticipated death. *fn3"

  It was conceded by the Eagles at trial that Chuy did not have and indeed never had polycythemia vera and that Dr. Nixon knew that he did not have it. This concession was consistent with the Eagles' defense because Dr. Nixon testified that he had never told Mr. Brown that Chuy had polycythemia vera. However, the jury credited Mr. Brown's testimony that Dr. Nixon made the statement. The jury also found, in answer to a special interrogatory, that the Eagles had actual control or the right to control the substance of Dr. Nixon's statements to the press about the conditions of Eagles players. Finding that the record facts established that Chuy was a public figure and that the constitutional privilege defense of New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and its progeny should be accorded even to a non-media defendant such as the Eagles, we applied a "clear and convincing" standard in our instructions and special interrogatories. Nonetheless, the jury answered most of the interrogatories favorably to Chuy. In accordance therewith a verdict was rendered for Chuy against the Eagles3a for intentional infliction of mental distress, the jury awarding Chuy $10,000 as compensatory damages and $60,590.96 as punitive damages. Chuy had also sued for defamation. Because the jury found that Dr. Nixon's statements were not understood by Hugh Brown (the recipient) as defamatory, a requirement of Pennsylvania law, we molded a verdict for the Eagles on the defamation claim.

 The Eagles have asserted a variety of grounds in support of their post-trial motions. With respect to the contract claim, as we have indicated above, they mainly contend that the documents in question should have been construed as three one-year contracts as a matter of law; that we should not have permitted introduction of parol evidence; and that in any event there was no evidence to support the verdict. With respect to the mental distress claim, defendant mainly argues that there was no evidence of a master-servant relationship and that the Eagles cannot therefore be held vicariously liable for Dr. Nixon's statements to the press. As will appear from the discussion below, Chuy's evidence on both these points was thin, but it was enough to permit the case to go to the jury and to support its verdict.

 The Eagles also urge that the presence in the jury room of a book entitled What You Need to Know For Jury Duty, by Godfrey Lehman, prejudiced their case, and that our instruction to the jury not to make any use of the book in response to the jury's inquiry whether it could be used was prejudicial to defendants because it took place in the absence of counsel. Moreover, the Eagles assert that the way in which the special interrogatories to the jury were framed prejudiced their case because the jury could ascertain from their structure which answers were the "correct" ones and because the jury was misled into thinking that Chuy would get no contract damages, thus encouraging the jury to increase the punitive damage award for the infliction of mental distress. The Eagles have also raised a question as to the size and overall propriety of the punitive damage award. The plaintiff, in his motion for a new trial on the defamation claim, argues that we erred in finding that Chuy was a public figure and in instructing the jury in accordance with the strict standard of New York Times v. Sullivan, under which the plaintiff was obliged to prove "malice" in order to recover.

 While the parties have asserted other grounds in their moving papers and briefs, the foregoing are the only points requiring discussion. The trial consumed 10 days and was interrupted by numerous colloquies; hence, the basis for most of our challenged rulings is already amply spread upon the record. For the reasons which follow, defendant's post-trial motions (and plaintiff's as well) are without merit. An order denying them has previously been filed and this opinion explicates our reasoning. *fn3"

 II. Discussion

 A. The Contract Claim

 In order to present fully the questions which defendant has raised in its motion for judgment n.o.v. or a new trial on plaintiff's contract claim, it will be necessary to examine the three contract forms which defendant and plaintiff signed, the difficulties of interpretation arising from their apparently overlapping application, and the procedures followed at trial regarding proof by parol evidence.

 Chuy, of course, had to demonstrate at trial that the three separate "Standard Player Contract" forms established an overall contractual arrangement by which the Eagles Football Club was obligated to him for his salary over three football seasons, and that, by virtue of the injury clause (paragraph 14), upon the occurrence of a disabling injury in the course of his football activities in 1969 he became entitled to receive his salary for the 1970 and 1971 seasons.

 We note preliminarily our threshold conclusion that the correct interpretation of the separate forms in this case necessarily depended upon a consideration of all three forms together, for despite the use of separate forms it is the combination which here embodies the rights and duties of the Eagles Football Club and Don Chuy vis a vis each other over three years. *fn4" See, e.g., International Mill Co. v. Hachmeister, Inc., 380 Pa. 407, 110 A.2d 186, 191 (1955); Chicago Pneumatic Tool Co. v. Ziegler, 151 F.2d 784, 795 (3d Cir. 1946) (interpreting Pennsylvania law); Stern and Co. v. State Loan and Finance Corp., 238 F. Supp. 901, 911 (D.Dela. 1965) (interpreting Pennsylvania law). This view is also in accord with the law of other jurisdictions than Pennsylvania. See Lowell v. Twin Disc, Inc., 527 F.2d 767, 769-70 (2d Cir. 1975); St. Paul Fire and Marine Insurance Co. v. Tennefos Construction Co., 396 F.2d 623, 628-29 (8th Cir. 1968). Lawrence v. United States, 378 F.2d 452, 461 (5th Cir. 1967); Phoenix Title and Trust Co. v. Stewart, 337 F.2d 978, 983 (9th Cir. 1964), cert. denied, 380 U.S. 979, 14 L. Ed. 2d 273, 85 S. Ct. 1335 (1965); Century Refining Co. v. Hall, 316 F.2d 15, 21 (10th Cir. 1963).

 The Eagles have argued that the documents are clear on their face in creating three separate one-year agreements, with the result that, since Chuy did not make the team in 1970 they are not obligated to him. The problem with that contention and the need for parol evidence to resolve the ambiguity created by the three documents can be demonstrated by referring to the third of the three documents, in which the year "1971" is typed into the first paragraph. The pertinent language is as follows:

the term of the contract shall be from the date of execution hereof [June 16, 1969] until the first day of May following the close of the football season commencing in the calendar year 1971 . . . .

 The salary figure appearing in paragraph 3 is $30,000 payable as follows:

10.0% of "said amount in equal semimonthly installments commencing with the first regularly scheduled League game played by the Club during each season and continuing each semi-monthly period thereafter . . . .
If Player is injured in the performance of his services under this contract, this contract shall remain in full force and effect despite the fact that Player, following injury, is either carried by the Club on its Reserve List or is waived out as an injured player while injured . . . .

 The two other forms are in all respects the same, except that the term of one runs from execution in 1969 through the 1970 season and the term of the other runs only through the 1969 season.

 The result of the foregoing is that these contracts could be construed on their face to create contemporaneously running one-year, two-year, and three-year contracts, thus providing Chuy $90,000 for his first season (1969), $60,000 for his second season (1970), and $30,000 for his third season (1971). Because this would seem to be a most peculiar, if not absurd, result (which neither party has urged) and because no other meaning clearly appears, we concluded that the meaning of paragraph 14 when the documents were read together was highly ambiguous. Because of the ambiguity, we held that evidence of prior and contemporaneous negotiations which did not contradict or alter the plain terms of the contract forms would be admissible at trial in order to provide a basis for determining the manifestation of the parties' intent. *fn5" See In re Herr's Estate, 400 Pa. 90, 161 A.2d 32 (1960); *fn6" see Lowell v. Twin Disc, Inc., 527 F.2d 767, 770 (2d Cir. 1975) (interpreting New York law). The issue of what the parties agreed to was, within this framework, submitted to the jury as the finder of fact. See, e.g., BBCI, Inc. v. Canada Dry Delaware Valley Bottling Co., 393 F. Supp. 299 (E.D.Pa. 1975); Framlau Corp. v. Upper Dublin School Authority Board, 219 Pa. Super. 369, 281 A.2d 464 (1971).

 The Eagles in their post-trial brief continued to maintain that the separate forms should have been interpreted independently of one another and that there is no ambiguity since the contracts clearly limit their applicability to one football season each. By this theory Chuy would be entitled to nothing for the 1970 and 1971 football seasons, because the salary "during the term of this contract" (paragraph 14) would only mean the salary due under the claimed single contract applicable to the 1969 season -- the season in which the plaintiff's injury occurred. While the parties might have agreed clearly to such a plan under some form of contract, we believe the defendant's contention, as based upon the documents before us, is untenable. The (third) contract document which defines the term of duration as 1969 to 1971 itself negates defendant's approach when juxtaposed with the verbiage of paragraph 14: to give each contract a purely independent interpretation would be to create a fundamental contradiction to the effect that the contracting parties agreed in three separate contracts to matters already covered on the face of just one of those agreements. We conclude (1) that the contract forms must be construed together, for to do otherwise would be simply to produce an insensible result; *fn7" and (2) that we were correct in admitting parol evidence on the subject of the parties' otherwise ambiguous intentions. *fn8"

 We turn now to the question of sufficiency of the evidence to support the verdict. That question, more precisely stated, is whether the verdict on the plaintiff's contract claim (as molded from the jury's answers to special interrogatories) is, as the Eagles maintain, against the clear weight of the evidence such that the conclusion drawn by the defendant is the only reasonable one, without weighing the credibility of witnesses, Eisenberg v. Smith, 263 F.2d 827 (3d Cir.), cert. denied, 360 U.S. 918, 3 L. Ed. 2d 1534, 79 S. Ct. 1436 (1959). We must now review the evidence upon which the jury could have based its decision. *fn9"

 The testimony of the plaintiff Donald Chuy and former Eagles General Manager Palmer ("Pete") Retzlaff who negotiated the Chuy contract is central to this task. To summarize, Chuy testified that Retzlaff, in presenting the three standard forms, told Chuy he was acquiring a three-year contract, and that Retzlaff repeatedly described the agreement as a $90,000 package (N.T. Chuy 36). Chuy also testified that he expressed his interest in the security of such a contract. Retzlaff, on the other hand, denied in his testimony that he referred to any "three year package," (N.T. Retzlaff 10), and, in general asserted that he at no time spoke of a three year agreement. The resulting disagreement thus presented a credibility question for the jury which they resolved in Chuy's favor. While the evidence for Chuy's position was not strong, certainly Chuy's testimony was some evidence from which the jury could have inferred that the parties at the time of contracting mutually manifested an intent to enter into a comprehensive financial arrangement to cover all three years rather than a step by step progression by which each year would be treated independently. In addition, there was testimony by Gloria Jurgelewicz, formerly the secretary to the Eagles owner Leonard Tose, that she overheard Tose say to Retzlaff, after Chuy had demanded the additional $60,000 and before the Eagles formally rejected the claim, that "there is no way in hell we are going to pay him that money, the remainder of his contract." (N.T. Jurgelewicz 7, 21) (emphasis supplied). This testimony, too, constitutes some evidence by way of admission that the $90,000 package deal to which Chuy claimed entitlement was agreed to by the Eagles. *fn10"

 Given the ambiguity in the parties' contractual association (deriving from the use of three facially overlapping documents), we think that this testimony provided sufficient evidence to support the jury's view that a $90,000 obligation was mutually intended and that an injury in the course of Mr. Chuy's football duties would establish defendant's liability for ...

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