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ROBERT J. WALDER v. WILLIAM LOBEL (02/15/85)

filed: February 15, 1985.

ROBERT J. WALDER, INDIVIDUALLY AND JOINTLY, AND JOSEPH WALDER, INDIVIDUALLY AND JOINTLY, AND MCCARRIE SCHOOLS, INC., APPELLANTS,
v.
WILLIAM LOBEL, INDIVIDUALLY AND T/A NATIONAL SCHOOL OF HEALTH TECHNOLOGY AND NATIONAL SCHOOL OF HEALTH TECHNOLOGY. ROBERT J. WALDER AND JOSEPH WALDER, INDIVIDUALLY AND JOINTLY, AND MCCARRIE SCHOOLS, INC. V. WILLIAM LOBEL, INDIVIDUALLY AND T/A NATIONAL SCHOOL OF HEALTH TECHNOLOGY AND NATIONAL SCHOOL OF HEALTH TECHNOLOGY, APPELLANTS



No. 01108 PHL 83, Appeal from the Order entered April 7, 1983 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5394 August Term, 1973. NO. 01114 PHL 83, Appeal from the Order entered April 7, 1983 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5394 August Term, 1973.

COUNSEL

Keith S. Erbstein, Philadelphia, for appellants (at 1108) and appellees (at 1114).

Jeremy T. Ross, Philadelphia, for appellants (at 1114) and appellees (at 1108).

McEwen, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 339 Pa. Super. Page 205]

Both parties have appealed from the lower court's April 7, 1983 order which granted defendants a new trial, but denied their motions for judgment n.o.v. and in arrest of judgment. For the reasons stated herein, we modify in part and affirm in part.

[ 339 Pa. Super. Page 206]

Plaintiffs, Robert J. Walder and Joseph Walder, are the owners and operators of plaintiff McCarrie Schools, Inc. (McCarrie School), a private dental technology school. Defendant William Lobel is the owner and operator of defendant National School of Health Technology (National School), a competing dental technology school. On August 30, 1973, plaintiffs filed a defamation action against defendants. After defendants filed preliminary objections to the complaint, plaintiffs filed an amended complaint. Defendants' preliminary objections to the amended complaint were sustained and, on July 15, 1977, plaintiffs filed a second amended complaint. On November 14, 1977, the lower court, per Judge Smith, dismissed defendants' preliminary objections to the first and second causes of action of the second amended complaint.*fn1 Subsequently, defendants filed a motion for summary judgment based upon the legal insufficiency of the second amended complaint. The lower court, per Judge Chalfin, considered this motion a motion for judgment on the pleadings and denied it on June 10, 1982. Following a June 10-22 trial, the jury found defendants liable and awarded plaintiffs $500,000 in compensatory damages and $450,000 in punitive damages. On July 15, 1982, defendants filed motions for a new trial, judgment n.o.v., and arrest of judgment. The lower court, in an April 7, 1983 order and opinion, granted the motion for a new trial based upon an erroneous jury charge and an excessive verdict; the remaining motions were denied. These appeals followed.

Before turning to the parties' contentions, we must first examine the defamatory communications in question, namely, several letters purportedly sent by students but actually sent by defendant Lobel to discredit plaintiffs. The "West" letter, dated January 22, 1973, was sent to the Veterans Administration (VA) in Philadelphia and ostensibly signed by Robert A. West, a veteran and graduate of McCarrie School. In the letter, West allegedly complained about the

[ 339 Pa. Super. Page 207]

    poor quality of the education which he had received at McCarrie School, his rejections by various dental labs based upon his schooling, and his inability to obtain employment. He also requested VA approval to take a course at National School "so that I may become employable." The "Wheeler" letters, dated January 5, 1973, were typed on National School stationery and ostensibly signed by Brenda Wheeler, a student at National School. The signatures on the two letters are different. In these letters, Wheeler allegedly claimed that McCarrie School representatives repeatedly called her to try to convince her to transfer to McCarrie School and told her that McCarrie School had more teachers, better equipment, and guaranteed job placement while National School had "lousy teachers." According to the letters, McCarrie representatives also told Wheeler that National School had been disqualified by the Board of Health. The "Jones" letters, dated December 13, 1972, were also typed on National School stationery and were ostensibly from Sandra Jones, a student at National School. One letter was signed; the other was unsigned. These letters described Jones' visit to McCarrie School, during which plaintiff Walder allegedly slandered rival schools, suggested to Jones a "dishonest" method of getting into the school free, called Lobel "a crook" and National School a "fly-by-night school" and a "little hole-in-the-ground," and bragged about McCarrie School. Jones also allegedly wrote that, when she next visited National School, "my faith in private schools was reaffirmed" because defendant Lobel only told her about the advantages and opportunities offered at National School and did not discuss any other school.

The "West" letter was received by the VA on January 24, 1973. (N.T. June 15, 1982 at 3.127). On March 2, 1973, the VA forwarded the letter to Dr. Joseph Gavenonis of the VA section of the Pennsylvania Department of Education in Harrisburg, which maintains an approved list of veterans' programs. (Id. at 3.130-3.131). Without state approval, private trade schools cannot enroll veterans. (Id. at 3.166,

[ 339 Pa. Super. Page 2083]

.173). Dr. Gavenonis then sent the letter to James Kiernan, an employee of the Department in Philadelphia, who investigated the charges by visiting McCarrie School and speaking with plaintiff Walder. Kiernan concluded that the complaint was groundless, and no further ...


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