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filed: September 14, 1984.




Ronald J. Mishkin, Stroudsburg, for appellant.

George W. Westervelt, Jr., Stroudsburg, for appellee.

Spaeth, President Judge, and Cirillo and Johnson, JJ.

Author: Cirillo

[ 334 Pa. Super. Page 301]


"The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled by reason and natural justice; since without these, it is impossible to have the perfect enjoyment of any other advantage or right." 1 W. Blackstone, Commentaries 134.

Appellant William Agriss sued his employer, Roadway Express, Inc., for what he considered a slight to his good name. A jury trial was held in the Monroe County Court of Common Pleas. After appellant had presented his evidence the court entered a non-suit. This appeal followed.

The standard of review we utilize on appeals from nonsuits is given in McNally v. Liebowitz, 498 Pa. 163, 170, 445 A.2d 716, 717 (1982):

The standard for determining whether an involuntary non-suit should have been granted is:

Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 595, 437 A.2d 1198, 1200 (1981) (Emphasis added), citing McKenzie v. Cost Brothers, 487 Pa. 303, 307, 409 A.2d 362, 364 (1979).

Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Hawthorne v. Dravo Corp., Keystone Division, 313 Pa. Super. 436, 460 A.2d 266 (1983). Guided by this standard, we review the evidence.

Appellant had been employed by Roadway Express since 1976 as a truck driver. In February 1979 he was elected as

[ 334 Pa. Super. Page 302]

    a shop steward for Teamsters Local 229, the union representing Roadway employees based at Roadway's facility in Tannersville, Pennsylvania.

On December 21, 1979, Agriss returned from a round trip to Hartford, Connecticut, and entered the Tannersville terminal. He was scheduled to begin his vacation that day, and went to the dispatcher's window to collect his vacation paycheck. The dispatcher told Agriss to see the driver foreman, Steve Versuk, before leaving. Versuk handed Agriss a company "warning letter," signed by Versuk and initialed by Roadway relay manager Joe Moran. The letter read:

By reason of your conduct as described below, it is necessary to issue this notice of warning. On 12/21/79 at Tannersville, Pennsylvania you violated our policy (or contract) by opening company mail. Subsequent violations of any company policy or contract will result in your receiving more severe disciplinary action up to and including discharge in accordance with Article 44 of the Central Pa Over-the-road and Local Cartage Supplemental Agreement.

The accusation in the letter was false, as Agriss had never, on that or any other day, opened company mail.

Agriss immediately took the letter to Joe Moran and denied the charge. Moran refused to withdraw the warning. Agriss then wrote out and presented to Moran a formal protest, which Moran rejected. Under the contractual grievance procedure between Roadway and the Teamsters, such a protest was the only remedial step open to an employee receiving a warning letter.

In accordance with the normal grievance procedure, both the warning letter and Agriss's protest were forwarded to the union business agent, Peter Fiore, in Stroudsburg, Pa. The procedure in addition provided for the warning letter to be distributed to Roadway's manager of labor relations and to Agriss's employee personnel file.

After fruitlessly trying to convince Moran to drop the charge, Agriss went to Roadway's district safety supervisor,

[ 334 Pa. Super. Page 303]

Ronald Brophy, thinking Brophy might know something about the charge. While Agriss was talking with Brophy in Brophy's office, Moran entered and began "interrogating" Agriss about opening company mail. Unable to resolve to Moran's satisfaction that the charge was unfounded Agriss left the terminal.

Shortly thereafter, Agriss flew with his girlfriend to Hawaii to spend the holidays. While Agriss was in Hawaii, Roadway driver Joseph Verdier heard stories about the warning circulating in the drivers' room at the Tannersville terminal. He heard other drivers and a Roadway dispatcher saying that Agriss was going to be fired for looking into company mail.

When Agriss returned to work on the 7th or 8th of January, 1980, several drivers asked him about the warning letter, and he heard the charge against him bandied over the CB radio. Aside from Versuk, Moran, and Brophy, Agriss had mentioned the charge only to his girlfriend.

On January 11 Agriss approached Moran to discuss the charge further. Agriss, Moran, and driver foreman Ron Cropt took up the discussion in Cropt's office. District manager Mike Wickham was walking by the office and stopped in. The discussion became heated, and loud enough to be heard by Roadway employees outside Cropt's office. At one point Wickham accused Agriss, "You read my ___ mail."

Over the next year Agriss continued to receive comments and questions about the warning letter from Roadway workers and union officials. Agriss instituted this suit, claiming that Roadway had defamed him. Trial began on January 23, 1981. After the plaintiff rested his case, the court granted the defendant's motion for compulsory non-suit, ruling that the plaintiff's evidence failed to prove a cause of action for defamation. The court en banc denied the plaintiff's petition to remove the non-suit.

After a thorough review of the record and the applicable law, we have concluded that the plaintiff's evidence was

[ 334 Pa. Super. Page 304]

    sufficient to go to the jury, and therefore that the non-suit should be removed and the plaintiff granted a new trial.

The plaintiff's burden of proof in a defamation case is set out in 42 Pa.C.S. § 8343(a):

Burden of plaintiff. -- In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be applied to the plaintiff.

(6) Special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion.

See also Dunlap v. Philadelphia Newspapers, Inc., 301 Pa. Super. 475, 448 A.2d 6 (1982) (plaintiff has burden to prove falsity of defamatory statement).

In finding appellant's evidence insufficient, the trial court ruled that: 1) the words "opening company mail" were incapable of a defamatory meaning as a matter of law; 2) there was insufficient proof that the defendant had published the words; 3) the plaintiff failed to prove "actual harm"; 4) the words complained of were not "libel per se" and the plaintiff failed to prove that they caused him special harm. In its opinion and order dated April 20, 1982, the court en banc upheld the trial court and further refined part 2 of the trial court's ruling by holding that to the extent the plaintiff's evidence proved publication, it was privileged publication. We address in turn each of the court's holdings.

1. Defamatory character of the words "opening company mail "

The threshold question in an action for defamation is whether the communication at issue is capable of a

[ 334 Pa. Super. Page 305]

    defamatory meaning. It is for the court in the first instance to make this determination; but if the communication could be understood as defamatory then it is for the jury to determine whether it was so understood by the recipient. Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971); Dunlap v. Philadelphia Newspapers, supra.

A publication is defamatory if it tends to blacken a person's reputation or expose him to public hatred, contempt, or ridicule, or injure him in his business or profession. Corabi, supra; Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962); Dunlap, supra. "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559 (1977); Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982); Rybas v. Wapner, 311 Pa. Super. 50, 457 A.2d 108 (1983); Beckman v. Dunn, 276 Pa. Super. 527, 419 A.2d 583 (1980); Vitteck v. Washington Broadcasting Co., 256 Pa. Super. 427, 389 A.2d 1197 (1978). For purposes of the threshold determination whether a communication could be understood as defamatory, it is not necessary for the communication actually to have caused harm to reputation; defamatory character depends on the general tendency of the words to have such an effect. Corabi, supra; Miller v. Hubbard, 205 Pa. Super. 111, 207 A.2d 913 (1965); Restatement, supra, § 559 Comment d. However, it is not sufficient if the words are merely embarrassing or annoying to the plaintiff. Beckman v. Dunn, supra.

The court should read an allegedly libelous statement in context. Corabi, supra. The nature of the audience seeing or hearing the remarks is also a critical factor in assessing whether a communication is capable of a defamatory meaning. Beckman, supra.

[ 334 Pa. Super. Page 306]

The test is the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them.

Corabi, supra, 441 Pa. at 447, 273 A.2d at 907. Nevertheless, neither the mere susceptibility of an article to an interpretation which would render it innocuous nor the intention of the author conclusively defeats a right of action for libel. Id.; Brophy v. ...

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