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C. IVAN GORDON v. LANCASTER OSTEOPATHIC HOSPITAL ASSOCIATION (02/13/85)

filed: February 13, 1985.

C. IVAN GORDON, D.O., APPELLANT,
v.
LANCASTER OSTEOPATHIC HOSPITAL ASSOCIATION, INC.; PROFESSIONAL STAFF OF LANCASTER OSTEOPATHIC HOSPITAL; BEREL B. ARROW, D.O.; NORMAN M. AXELROD, D.O.; JOSEPH GORDON; G. RICHARD HARTZ, D.O.; SEYMOUR S. KILSTEIN, D.O.; ROBERT C. SCOTT, D.O.; AND LEWIS M. YUNGINGER, D.O., DECEASED AND HIS SUCCESSOR, ETHEL M. YUNGINGER, EXECUTRIX, APPELLEES



No. 1014 Philadelphia 1983, Appeal from the Order of March 18, 1983 by the Court of Common Pleas, Lancaster County, Civil Division, at 129 February Term, 1981.

COUNSEL

Thomas B. Schmidt, III, Harrisburg, for appellant.

Thomas E. Brenner, Harrisburg, for Lancaster, appellees.

Jack M. Mumford, Harrisburg, for Arrow, appellee.

Michael M. Badowski, Harrisburg, for Hartz, appellee.

Cirillo, Olszewski and Beck, JJ. Beck, J., concurs in the result. Cirillo, J., files a concurring and dissenting opinion.

Author: Olszewski

[ 340 Pa. Super. Page 258]

This appeal follows an order sustaining appellees' preliminary objections in the nature of demurrers and dismissing counts 1 through 16, inclusive, of the complaint.*fn1

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.*fn2 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

[ 340 Pa. Super. Page 259]

    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

[ 340 Pa. Super. Page 260]

    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

[ 340 Pa. Super. Page 261]

S.Ct. 2961, 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'",

[ 340 Pa. Super. Page 262]

    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.*fn3 As stated by the lower court, appellees "cunningly or unwittingly stopped short of committing acts susceptible of defamatory meaning." Lower court opinion at 10.*fn4

[ 340 Pa. Super. Page 263]

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 ...


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