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filed: July 27, 1984.


No. 1037 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 1982 March 1977.


James A. Lynch, III, Havertown, for appellants.

David C. Harrison, Philadelphia, for appellees.

Wickersham, Wieand and Lipez, JJ. Wieand, J., files a dissenting opinion.

Author: Wickersham

[ 332 Pa. Super. Page 213]

This appeal involves a defamation action brought by plaintiffs-appellees James Wilson and Louella Hynson seeking damages from defendants-appellants Ricardo Benjamin, individually and in his capacity as President of the American

[ 332 Pa. Super. Page 214]

Federation of Government Employees, Lodge No. 1350, and the Lodge itself, for injuries sustained when Benjamin caused certain articles to be printed and distributed which the appellees allege were libelous in nature.

Both appellees and appellant Benjamin were employees at the United States Naval Hospital in Philadelphia. In November of 1976 appellee James Wilson applied for a promotion to the position of foreman in the food management division of the hospital. The application was made pursuant to a notice that two such positions were open. A rating panel was convened and, after reviewing Wilson's application, the panel rated him as "qualified." Three other applicants were rated "highly qualified;" two of these "highly qualified" applicants were awarded the positions.

Since Mr. Wilson had previously been rated "highly qualified" when he applied for the same position, and because he felt that he had been unfairly rated by the most recent panel, he filed an informal grievance and asked appellee Louella Hynson to act as his representative. Eventually, Wilson retained counsel and filed a formal grievance, which was sustained. Despite the affirmative response to his formal grievance, Wilson was still unable to obtain the desired promotion since the position had already been filled.

In the meantime, while the appellees were involved in the grievance procedure, appellant Ricardo Benjamin, who was president of the appellant union, caused two (2) newsletters to be published which appellees allege to be libelous in nature. One of the newsletters was posted on the bulletin board; the other was distributed directly to union members.

These newsletters referred to the informal grievance filed by appellees. Mr. Wilson had submitted the informal grievance in the form of a letter written by Mrs. Hynson as his representative. In that letter, the appellees questioned the composition of the rating panel in that one of the members of the panel was quite friendly with one of the applicants (who was rated "highly qualified" and was ultimately selected for the position) and that another applicant (who was also rated "highly qualified") was a subordinate of one of

[ 332 Pa. Super. Page 215]

    the panel members. Appellant Benjamin argues that he subsequently wrote the newsletters solely to defend a member of the rating panel whom he felt was being attacked by the appellees' letter and to criticize the conduct of a third party, Thomas Marshall, for his attempt to resort to the "buddy system" to determine who would be promoted. Benjamin testified that the newsletters criticized Marshall's conduct and were not defamatory as to Wilson or Hynson.

The Honorable Ethan Allen Doty, sitting without a jury, found, however, that the newsletters were libelous in nature and that, when read as a whole, they clearly referred to appellees. The court further concluded that, after their co-workers learned of the contents of the newsletters, appellees' ability to perform in their respective positions was affected. The court entered a verdict in favor of James Wilson in the amount of $2,500.00 and in favor of Louella Hynson in the amount of $2,500.00 and against appellant Ricardo Benjamin, individually and as president of the American Federation of Government Employees, Lodge No. 1350 and against appellant union. Punitive damages were denied because, while appellees proved legal malice, actual malice was not established. Appellants filed exceptions to the verdict, which were denied on March 5, 1982. This appeal timely followed.

In Mancini v. Morrow, 312 Pa. Super. 192, 458 A.2d 580 (1983), we reiterated our scope of review in cases decided by a judge sitting without a jury:

Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa. Super. 564, 567, 440 A.2d 609, 611 (1982); Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa. Super. 177, 180, 395 A.2d 1373, 1375 (1978). The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence

[ 332 Pa. Super. Page 216]

    in the record. Eddystone Fire Co. No. 1 v. Continental Insurance Cos., 284 Pa. Super. 260, 263, 425 A.2d 803, 804 (1981). When an appellate court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all the evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Brenna v. Nationwide Insurance Co., supra 294 Pa. Super. at 567-68, 440 A.2d at 611; Courts v. Campbell, 245 Pa. Super. 326, 331, 369 A.2d 425, 428 (1976).

Id., 312 Pa. Superior Ct. at 196, 197, 458 A.2d at 582.

With these standards in mind, we now turn to the first issue presented by appellants for our consideration:

Did the lower court have jurisdiction of the libel suit involving a union of federal employees?

Brief for Appellants at 4.

Appellants cite 5 U.S.C.A. § 185(c) for the proposition that the jurisdiction of all actions by and against federal labor organizations rests in the United States District Courts. Brief for Appellants at 11. We note that no such statute exists; title 5 of the United States Code does not contain a section 185. We assume, as did the appellees,*fn1 that appellants are referring to 29 U.S.C. § 185(c), part of the National Labor-Management Relations Act, which provides:

§ 185. (c) Jurisdiction.

For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.

While this section defines in which district court a specific suit against a labor union may be brought, it does not give

[ 332 Pa. Super. Page 217]

Were the alleged libelous publications privileged either absolutely, ...

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