in criminal conduct, then he might have a defamation action based on the physical conduct of the guards. Cf. Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959) (woman accosted and searched in street outside store by merchant; nonverbal conduct was capable of defamatory meaning).
Plaintiffs also suggest that the defendants defamed Mr. Krochalis by circulating his photograph to the building security guards. The dissemination of a mug shot can be defamatory if it imputes criminal behavior. See Paul v. Davis, 424 U.S. 693, 697, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). In Paul v. Davis the Supreme Court assumed that distribution of a mug shot to merchants under the heading "active shoplifters" imputed criminal behavior and, therefore, was defamatory. 424 U.S. at 697. In the present case, there is no evidence that any photograph of Mr. Krochalis was distributed that bore any indication or inference of criminal conduct. In fact, the entire record strongly suggests that the reason a photograph may have been given to the building security guards was simply to prevent Mr. Krochalis from returning to his former office and disrupting the company's business after the termination of his employment. His appearance at the office on February 2, 1982, after resigning, certainly must have been confusing to the employees in his department and INA may have wanted to prohibit any reoccurrence of such an incident. It seems doubtful that the circulation of Mr. Krochalis' photograph among security personnel was a publication capable of defamatory meaning. Defendants have not, however, demonstrated the lack of any material issue of fact with respect to the defamatory meaning of this "publication." Although the issue has not been briefed by the parties, it would appear that any distribution of Mr. Krochalis' photograph was a privileged occasion. At trial it may be appropriate to grant defendants judgment on Count III, but at this point defendants have not demonstrated that they are entitled to judgment on that count as a matter of law.
In Count XI plaintiffs allege that defendants defamed Debra Krochalis. Defendants contend that her cause of action is barred by the one-year statute of limitations for defamation actions, 42 Pa. Cons. Stat. Ann. § 5523(1), and that she has failed to allege with particularity any defamatory communication. According to Mr. Krochalis, some communications were made to him on February 1, 1982 concerning improprieties by both him and his wife. A claim concerning any defamatory publication to Mr. Krochalis concerning Mrs. Krochalis made on that date would not be barred by the statute of limitations because the complaint was filed on January 28, 1983.
Plaintiffs contend that, although no specific reference was made to Debra Krochalis on February 1, 1982, William Krochalis understood his discharge for wrongful conduct after the audit to imply that the auditors were reaffirming the accusations against both him and his wife that the auditors had made in December of 1981. The auditors had indicated that it may have been improper for Mr. Krochalis to have employed his wife in a project for INA, and apparently had intimated that the work may not have been properly performed. Moreover, Mrs. Krochalis may have been implicated in some of the improper expense vouchers allegedly submitted by Mr. Krochalis. Even if there was a false and defamatory publication concerning Mrs. Krochalis made to Mr. Krochalis on February 1, 1982, that publication was made on a privileged occasion and there is no evidence of abuse of the privilege. Both the auditors' inquiries to Mr. Krochalis in December 1981 and Krochalis' discharge on February 1, 1982 were conditionally privileged occasions because of the common business interest of the parties to the communications in ensuring propriety in the conduct of INA's business affairs. Cf., e.g., Harbridge v. Greyhound Lines, Inc., 294 F. Supp. 1059 (E.D. Pa. 1969) (statements made during investigation of shortage of funds were privileged). There is no evidence of abuse of that privilege. The statements were made only to William Krochalis and were limited to subject matter within the privilege. Plaintiffs do not contend that Malling's remarks to other employees on February 2, 1982, were understood to have defamatorily referred to Mrs. Krochalis. Judgment will be entered in favor of defendants on Count XI.
William Krochalis contends that Pat Hasson's threats to him over the phone on February 2, 1982, constitute an assault. Even construing Hasson's remarks most favorably to plaintiffs as constituting threats of the use of physical force on Mr. Krochalis, they fail to rise to the level of an assault as a matter of law.
An assault is " an act intended to put another person in reasonable apprehension of an immediate battery, and which succeeds in causing an apprehension of such battery." Cucinotti v. Ortmann, 399 Pa. 26, 27, 159 A.2d 216 (1960). "Words in themselves, no matter how threatening, do not constitute an assault; the actor must be in a position to carry out the threat immediately, and he must take some affirmative action to do so." Id.
Hasson may have intended to put Krochalis in apprehension of an offensive touching by security guards, but he was in no position to carry out the threat of an offensive touching immediately, nor did he take any action to do so. Judgment must be granted in favor of defendants as a matter of law with respect to Count IV based on assault.
III. False Imprisonment
William Krochalis contends that he was falsely imprisoned on February 2, 1982, when Pat Hasson requested that Krochalis come to his office. Krochalis refused to talk to Hasson on the phone, and Hasson told Krochalis' secretary that he would have security guards remove Krochalis from his office if Krochalis refused to come down to Hasson's office. Hasson repeated this threat to Krochalis when Krochalis finally did speak to him on the phone. Krochalis ended up going to Hasson's office, where he was told that his employment was terminated and that he should leave the premises. Krochalis contends that he was confined in Hasson's office under threat of physical force.
The only threat of physical force Krochalis has identified that may have coerced him to go to Hasson's office and remain there was the threat to have security guards remove Krochalis from his office, and presumably from the INA building. An actor is liable for false imprisonment if:
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and