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MELVIN BAKER v. LAFAYETTE COLLEGE (01/28/86)

filed: January 28, 1986.

MELVIN BAKER, APPELLANT,
v.
LAFAYETTE COLLEGE



Appeal from the judgment entered September 1, 1982 in the Court of Common Pleas of Northampton County, Civil Division, at No. 1979-C-205.

COUNSEL

J. Stephen Kreglow, Easton, for appellant.

George C. Laub and Norman Seidel, Easton, for appellee.

Spaeth, President Judge, and Rowley and Beck, JJ. Spaeth, President Judge, files a dissenting opinion. Spaeth, President Judge, wrote this opinion before the expiration of his term on the court.

Author: Beck

[ 350 Pa. Super. Page 71]

Appellant Melvin Baker ("Baker") was employed by appellee Lafayette College ("the College") as an assistant professor of art under a two-year contract. The College did not reappoint Professor Baker at the end of his two-year term. After Baker's internal appeals proved unsuccessful, he commenced the instant action against the College. His complaint contained three counts: Counts I and II sounded in defamation, and Count III in breach of contract. Baker brings the instant appeal from two orders of the trial court. The first order sustained the College's preliminary objections with respect to parts of counts I and II of the complaint and dismissed the complaint with respect to those parts of Counts I and II. The second order granted the College's motion for summary judgment on all remaining claims. We affirm.

DEFAMATION

Baker's defamation claims are based on four documents, attached as exhibits to his complaint, containing statements pertaining to Baker's performance as a faculty member at Lafayette College.*fn1 Exhibit A is a letter written by Professor Joseph Gluhman, then head of the art department, evaluating Baker's performance after the first year of his two-year appointment. Exhibit B is another evaluation of Baker's performance by Professor Gluhman, dated midway through the second year of Baker's contract. Both of these letters are highly critical of Baker's teaching ability, his grading standards, his willingness to contribute to improving the art department and his relationships with other members of the faculty. The second letter (Exhibit B) specifically recommends that Baker not be reappointed.

Exhibit C is a memorandum from Gluhman to Provost George Sause commenting unfavorably on the presence of

[ 350 Pa. Super. Page 72]

Baker's wife in his classes. Gluhman concludes the memo by stating that no action should or need be taken because Baker had already been informed that he would not be reappointed.

Finally, Exhibit D is a report written by Dean David Pease of the Tyler School of Art and addressed to Sause. The report states that Pease visited the Lafayette campus on December 20, 1977 at Gluhman's invitation "to discuss the performance of a member of the studio faculty and to review the decision concerning his termination." In the report, Pease indicates his agreement with the decision not to reappoint Baker, and he repeats several of the factual statements about Baker's teaching practices contained in Exhibits A and B, attributing these statements to Gluhman.

The trial court dismissed Baker's complaint with respect to Exhibits A and B on the grounds that Baker consented to the publication of these evaluations and that this consent gives the College an absolute privilege. We agree. Section 583 of the Restatement (Second) of Torts (1977) states that "the consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation." Comment (f) elaborates on the meaning of "complete defense," saying

The privilege conferred by the consent of the person about whom the defamatory matter is published is absolute. The protection given by it is complete, and it is not affected by the ill will or personal hostility of the publisher or by any improper purpose for which he may make the publication.

In DeLuca v. Reader, 227 Pa. Super. 392, 323 A.2d 309 (1974), this court cited § 583 in support of its holding that a letter explaining the reasons for disciplinary action against an employee was absolutely privileged where the collective bargaining agreement between the employer and the labor union required the employer to state in writing the reasons for discharge or other disciplinary action. DeLuca is commonly cited for the proposition that the public policy embodied in the federal labor laws favoring private resolution of

[ 350 Pa. Super. Page 73]

    labor-management disputes requires an absolute privilege to facilitate open and freewheeling debate. See, e.g., Gordon v. Lancaster Osteopathic Hospital, 340 Pa. Super. 253, 489 A.2d 1364 (1985) (Cirillo, J. concurring and dissenting); Agriss v. Roadway Express Inc., 334 Pa. Super. 295, 483 A.2d 456 (1984). However, the opinion may also be fairly read as holding that where an employment contract mandates that certain written notices or statements be disseminated to interested persons involved in evaluating an employee's record for the purposes of retention, promotion, discharge or discipline, an employee who is a party to the contract has consented to the publication of such statements, making them absolutely privileged.

We believe that the concept that an employer should not be subject to a defamation suit by an employee based on statements the employer is contractually compelled to make may be extended to employment contracts in non-union contexts as well. In the instant case, Baker argues (in support of his breach of contract claim) that the Faculty Handbook is part of his employment contract. The Handbook provides for annual written evaluations by the department head. Recognizing the implications of this argument, Baker concedes that he consented to be evaluated:

By signing his employment contract he agreed to the evaluation procedures as set forth in The Faculty Handbook. Baker admits The Faculty Handbook contained conditions bearing upon his contract with College. Further, it cannot be argued that by accepting those conditions he did not agree to the evaluation process contained therein. Stated simply, Baker consented to be subject to the evaluation process.

Appellant's Brief at 16. As we shall explain in more detail below, we agree that the terms and conditions in the Faculty Handbook were part of the contract between Baker and the College. We therefore hold that Baker consented to the publication of the evaluations which constitute Exhibits A and B.

[ 350 Pa. Super. Page 74]

Baker's position is that any consent he gave to be evaluated does not bar our inquiry into the accuracy and objectivity of the evaluations and the state of mind and degree of care of those responsible for the publications. Baker relies on comment (d) to § 583 of the Restatement, which states that "one who agrees to submit his conduct to investigation knowing that its results will be published, consents to the publication of the honest findings of the investigators " (emphasis added). Baker contends that because of Professor Gluhman's bias and irrational behavior, his evaluations were not honest, objective or legitimate and hence should not be privileged.

Baker's argument fails because it is inconsistent with the nature of an absolute privilege. In determining the meaning intended by the drafters of § 583 of the Restatement, we should view the commentary with caution, just as we hold that the text of a procedural rule or uniform act controls over the comments thereto to the extent they are inconsistent. See, e.g., In re Bristol Associates Inc., 505 F.2d 1056 (3rd Cir.1974) (comments to Uniform Commercial Code). We therefore decline to apply comment (d) in the manner suggested by Baker because that would have the effect of converting the consent privilege from an absolute privilege to a conditional one.

The courts of our sister states which have applied § 583 have consistently held that consensual publications are absolutely privileged and that the absolute character of the privilege forbids inquiry into ill will, negligence or actual malice (knowledge of or recklessness as to falsity). Royer v. Steinberg, 90 Cal.App.3d 490, 153 Cal.Rptr. 499 (1979); Dominguez v. Babcock, Colo.App., 696 P.2d 338, 339 (1984), cert. granted (Colo. Feb. 4, 1985); Ernst v. Indiana Bell Telephone Co., Ind.App., 475 N.E.2d 351 (1985); Johnson v. City of Buckner, 610 S.W.2d 406 (Mo.Ct.App.1980); Gengler v. Phelps, 92 N.M. 465, 589 P.2d 1056 (1978). The California court explained this principle succinctly:

Royer also argues that the defense of consent should not be allowed where there is a showing of "reckless disregard

[ 350 Pa. Super. Page 75]

    for the truth." This is a misunderstanding of the law . . . . [quoting comment (f) to § 583 of the Restatement]. By its very definition, an absolute privilege cannot be overcome by a showing of actual malice; malice is simply not the proper subject of inquiry in such a case.

Royer v. Steinberg, 90 Cal.App.3d at 499, 153 Cal.Rptr. at 504.

We also believe as a matter of policy that the consent privilege should be absolute. The person who agrees to submit his work to criticism or evaluation assumes the risk that the criticism may be unfavorable. Therefore when that person consents to a publication of the evaluation he has reason to know that the publication may be defamatory and should not be heard to complain if that is in fact the case. See Comment (d) to § 583 of the Restatement.

We therefore agree with the well-reasoned decisions of our sister states. The existence of malice, recklessness or negligence does not defeat a privilege based on consent, because such a privilege is absolute. The trial court was correct in holding Exhibits A and B absolutely privileged as a matter of law and dismissing Baker's defamation claims with respect to these documents.

Exhibit C (memorandum from Professor Gluhman to Provost Sause) is likewise a communication concerning Baker's performance. However, it is not one of the formal evaluations provided for in the Faculty Handbook. Therefore this document is not absolutely privileged on consent grounds. In granting the College's motion for summary judgment, the trial court held that Exhibit C was not capable of defamatory meaning and in the alternative that it was conditionally privileged as a matter of law. Although we agree with the trial court on both points, our decision to affirm rests primarily on the lack of defamatory meaning because the defamatory character of the communication is a threshold issue which, if decided against the plaintiff, renders the question of privilege moot.

[ 350 Pa. Super. Page 76]

Whether a publication is capable of defamatory meaning is a question of law for the court to decide. Doman v. Rosner, 246 Pa. Super. 616, 371 A.2d 1002 (1977). A publication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or deter third persons from associating and dealing with him. Rybas v. Wapner, 311 Pa. Super. 50, 457 A.2d 108 (1983). Specifically, a communication which "ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his lawful business, trade or profession" is defamatory. Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 463, 442 A.2d 213, 216 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982), quoting Restatement (Second) of Torts § 573 (1977). Even when the record is viewed most favorably to Baker as the non-moving party, which we must do in reviewing the grant of summary judgment, Ritmanich v. Jonnel Enterprises, 219 Pa. Super. 198, 280 A.2d 570 (1971), it is clear that Exhibit C is not capable of defamatory meaning. The statement that Baker's wife was present in the classroom when he was teaching does not impugn Baker's talent as an artist, his abilities as a scholar or his skills as a teacher. Professor Gluhman's expression of his disapproval of this practice is a statement of opinion not founded on defamatory facts and therefore not actionable, even if it may be annoying or embarrassing to Baker. Beckman v. Dunn, 276 Pa. Super. 527, 419 A.2d 583 (1980).

Exhibit D (report by Dean Pease of the Tyler School of Art to Provost Sause) poses more difficult questions. The College argues that it was consented to by Baker, because the Faculty Handbook provides that "where special competence in judgment is required, the opinion of authoritative persons outside the College may be sought to assist the Faculty Committee on Appointments, Promotions and Dismissals in its evaluation." Baker contends that Dean Pease's report is not protected by the consent privilege for two reasons. First, because Dean Pease's visit to the

[ 350 Pa. Super. Page 77]

College took place after the decision not to reappoint Baker had been made, Baker argues that the report was not published for the use of the College in considering whether to reappoint him. Secondly, Baker maintains he was initially informed that he was not reappointed for economic reasons and on that basis he told Provost Sause he would not appeal the decision on the condition no further evaluations be done. These allegations raise factual issues as to whether Exhibit D is within the scope of the consent Baker gave to be evaluated and whether any consent was revoked by subsequent agreement. Therefore the grant of summary judgment cannot be upheld on these grounds.

However, as with Exhibit C we conclude as a matter of law that Dean Pease's report is not capable of a defamatory meaning. The pertinent portion of Exhibit D is as follows:

Evaluation of Assistant Professor Mel Baker

[ 350 Pa. Super. Page 78]

It is my understanding that Professor Baker is currently one of two full-time studio faculty at Lafayette. Because of administrative exigencies it is necessary that one of the two studio faculty positions be eliminated for the coming year. A decision has been made that Professor Baker's position will be eliminated and the other studio faculty member, Ms. Constance Pierce, will be retained. After lengthy discussion with Professor Gluhman and having studied examples of the work produced in Professor Baker's classes, I would concur with the decision which has been made. In any art program and particularly in one the size of the one at Lafayette currently, it is important that each member of the faculty have a commitment to the students and their needs that goes beyond merely meeting the requirements. Students must be exposed to an enthusiastic and solidly prepared faculty who will present them with both challenging and exciting problems. The demands of a small program are different from those in a large department and it takes a very special type of faculty to be able to both enjoy and successfully fulfill the requirements. Professor Baker seems, from the reports I received, to be less successful Page 78} at meeting these requirements than the other studio faculty member. His attitude, as reported by Professor Gluhman, would seem to be almost cavalier in his dealings with the students, i.e. no regular office hours, no outside assignments, a general attitute that the best way to build a program is by giving high grades. Although he was brought in originally to develop the sculpture and three-dimensional design program, he does not seem to have any interest in three-dimensional design. His primary interest lies in the area of figurative modeling, but the results of his class, as shown in examples provided for me, seem ordinary at best.

In fairness to Professor Baker, whom I did not meet, his resume appears to be that of a reasonably active exhibiting artist, and I might speculate that he is more concerned about his own development as an artist than he is in meeting the wide range of needs presented by the students. In a larger department, or in a professional school, this might not be a major problem, since there are usually a far larger number of faculty and the type of role models expected is different; but in a department with only two studio faculty, it is a luxury that cannot be afforded.

If there must be a reduction in the studio staff -- and obviously, as an artist and educator, I would like to encourage the college to reinstate the position as soon as it is feasible -- it seems that the appropriate decision has been made.

R. 60a-61a (emphasis apparently supplied by Baker).

The statements of Dean Pease fall into two categories: (1) his opinion that the decision not to reappoint Baker was correct, and (2) the repetition of some of Gluhman's criticisms of Baker. Statements of opinion without more are not actionable, for there can be no such thing as a false opinion in a free society. Gertz v. Robert Welch Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Braig v. Field Communications, 310 Pa. Super. 569, 456 A.2d 1366

[ 350 Pa. Super. Page 79]

(1983); Beckman v. Dunn. However, a plaintiff may maintain a libel action if he can demonstrate that the statement of opinion "may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion." Beckman, 276 Pa. Super. at 535, 419 A.2d at 587.

A fair reading of Exhibit D does not lead to the conclusion that Dean Pease's opinions are based on undisclosed defamatory facts. Dean Pease states clearly the reasons underlying his conclusions. He explains that he believes Baker's approach to teaching does not meet the special needs of a small art department and that his subject matter interests do not lie in the areas which the department seeks to develop. Pease also observes that the need to eliminate one of the studio art faculty positions arose because of "administrative exigencies," i.e. economics, and that he [Pease] regrets this need. Finally, Pease suggests that Baker might fit in better at a larger art department or at a professional school. These statements do not reasonably imply that Baker's employment should be terminated because he is an untalented artist or an incompetent teacher. The fact that Baker's teaching methods and interests may not meet the particular needs of a particular institution is not tantamount to a disparagement of Baker's skills which would tend to blacken his reputation.

As for the statements of a factual nature which are contained in the Pease report, we also conclude that they are incapable of a defamatory meaning. In comparison with the highly critical evaluations by Professor Gluhman which we have found to be absolutely privileged, the tone of the Pease report is mild. The report alleges that Baker did not keep regular office hours, did not assign outside work and was an easy grader. While these comments are not exactly laudatory, neither are they of such a nature which would "tend to lower [Baker] in the estimation of the community" in a way that "necessarily involves the idea of disgrace." Beckman, 276 Pa. Super. at 533, 419 A.2d at 586. The thrust of the report as a whole is not that Baker is incompetent but that he would be better off in a different

[ 350 Pa. Super. Page 80]

    institutional environment. The author of the report does express his support for the decision not to reappoint Baker but he also states his view that it would be better if the College did not need to make staff cutbacks.

In considering the Pease report we note that the nature of the intended audience of a communication is a factor in deciding whether it is capable of a defamatory meaning. Beckman; see also Rybas v. Wapner, 311 Pa. Super. 50, 54, 457 A.2d 108, 110 (1983) ("The test is the effect the statement would fairly produce, or the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate") (citation omitted). Although Baker makes the bare allegation that Pease report was disseminated to a variety of persons, including at least one prospective employer, there is in fact no evidence that it was distributed to persons other than College officials involved in the consideration of Baker for reappointment. Baker's bare allegation to the contrary is insufficient to preserve a factual issue for purposes of the summary judgment ruling before us. In Beckman, the similarly limited nature of the audience was a substantial factor in the court's decision that the complained-of remarks were not capable of a defamatory meaning. This lends further support to our holding that Exhibit D is not defamatory.

Finally, the statements contained in the Pease report are notably less damaging than other evaluative statements containing more direct imputations of incompetence which the courts have found nondefamatory. See, e.g., Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa. 1976) (decision not to grant tenure to faculty member "was based on evaluation of his effectiveness as a faculty member with teaching, research and other responsibilities on this campus"); Beckman v. Dunn, 276 Pa. Super. at 533, 419 A.2d at 586 (doctoral candidate's classwork "quite mediocre" and examination performance "totally inadequate"). Cf. Avins v. White, 627 F.2d 637 (3rd Cir.1980), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980)

[ 350 Pa. Super. Page 81]

(statement that law school was pervaded by "academic ennui" and lacked "intellectual spark," while possibly critical of dean and disparaging of his performance, held not defamatory).

Under all the circumstances we conclude that the trial court was correct in holding Exhibit D incapable of defamatory meaning as a matter of law. Therefore we uphold the grant of summary judgment on the defamation counts.

BREACH OF CONTRACT

Baker's breach of contract argument is twofold. First, he contends that he had an enforceable right to renewal of his two-year contract based on oral assurances that he could expect more than two years of employment and on his claim that "the evaluation procedures themselves are geared toward the expectation of renewal." Secondly, Baker argues that the College breached an obligation, embodied in the Faculty Handbook, to evaluate him in good faith on the basis of his teaching record, professional growth and service to the College.

Both of these arguments fail for essentially the same reason -- the College at no time assumed any contractual obligation beyond the two-year duration of his appointment. Baker attached as Exhibit E to his complaint the documents which he argues and the College agrees constitute his written contract. Chronologically, the first of these documents is a May 19, 1976 letter offering Baker the position. This letter states clearly that the appointment was for a two-year term and "[a]t this time no assurance can be offered that you will receive a renewal of appointment or that you may be promoted to associate professor or receive tenure." Baker accepted this offer by affixing his signature to a copy of the letter under the statement "I accept the conditions noted above." Exhibit E also contains the College's April 15, 1977 letter to Baker informing of his salary for the second year of his appointment. This letter contains the same "no assurance can be offered" disclaimer

[ 350 Pa. Super. Page 82]

    and the identical "I accept the conditions stated above" subscription by Baker.

Baker also contends that the Faculty Handbook is part of the employment contract. The May 19, 1976 letter offering Baker the position states that his employment would be subject to the terms contained in an attached document entitled "General Conditions of Full-time Appointment to the faculty of Lafayette College." This document incorporates by reference the Faculty Handbook's "[s]tatements on factors such as academic freedom, promotion, tenure, retirement, tuition support for children of the Faculty, etc." We therefore agree that the handbook is part of Baker's contract.*fn2

Despite this fact, though, we believe the record supports the grant of summary judgment to the College on the breach of contract claim for several reasons. First, nothing in the Faculty Handbook supports Baker's contention that the evaluation procedures were geared to an expectation of renewal. In describing the various ranks within the faculty, the handbook clearly states the customary terms of appointment for junior faculty members and explains that "[a] term appointment for one, two or three years is considered to be terminal with the last year of the term defined in the appointment," with reappointment contingent on recommendation and approval by appropriate departmental and College officials based on a meritorious record of teaching and scholarship (R.431a-432a). This language reinforces rather than contradicts the College's declarations that "no assurance" of reappointment was offered.

Moreover, as a matter of law the oral assurances given to Baker*fn3 and the handbook's statements on evaluation

[ 350 Pa. Super. Page 83]

    and reappointment are insufficient to create an enforceable right beyond the stated term. With respect to the oral statements to Baker prior to and contemporaneous with his hiring, they cannot vary the terms of the written contract. This is not a novel rule of law; it is simply an application of the well-known principle that prior or contemporaneous oral representations which concern a subject specifically dealt with in the written contract are not admissible to vary the terms of a written agreement intended by the parties to be the complete contract. See, e.g., LeDonne v. Kessler, 256 Pa. Super. 280, 389 A.2d 1123 (1978).*fn4 Here, Baker indicated in writing his assent to all the terms and conditions contained in a written agreement which, together with the documents incorporated by reference, is a comprehensive statement of the rights and duties of both parties. Among these terms was the statement that the contract was for a two-year term and no assurance of renewal could be offered. The alleged oral representations to the contrary cannot vitiate the parties' written agreement.

With respect to the Faculty Handbook, we have already observed that nothing in the handbook expressly gives Baker the right to reappointment. Indeed, this Court has held that general statements of hiring policy and evaluation procedure incorporated into a non-tenured faculty member's contract do not create a right to continued employment beyond the stated term. In Krasik v. Duquesne University of the Holy Ghost, 293 Pa. Super. 165, 437 A.2d 1257 (1981), the plaintiff was employed by Duquesne University as a law librarian with faculty status pursuant to a one-year contract. The university renewed the contract once but denied further renewal at the end of the second year. Plaintiff brought an action seeking to enjoin her termination. She based her claim on certain policies promulgated by the American Association of Law Schools and the American

[ 350 Pa. Super. Page 84]

Bar Association and incorporated by reference into her contract. These statements of policy concerned the appropriate role of the faculty in personnel decisions. This Court held that such "advisory language" could not overcome the clear statement that the plaintiff's contract was for one year and "[did] not convert the agreement into a contract for permanent employment." Accordingly, we held that the plaintiff was entitled to no relief because her contract had simply expired by its own terms. 293 Pa. Super. at 172, 437 A.2d at 1261.

On the basis of Krasik we conclude that the description of evaluation standards and procedures in the Lafayette Faculty Handbook does not overcome the clear statement that the term of Baker's contract was for two years. Although Baker concedes in his brief that " Krasik stands for the proposition that a terminal contract creates no right to continued employment" (Appellant's Brief at 30), he contends that is not the essence of his claim. Baker's position is that while he may not have a right to continued employment per se, implicit in his employment contract is an obligation on the College to conduct the evaluation process in good faith. Baker contends that he is entitled to damages because the College breached this obligation.

We hold that the College had a limited duty to evaluate Baker in good faith which is defined by the terms of the College's contractual undertakings. This is consistent with the general duty of contracting parties to perform their contractual obligations in good faith set forth in the Restatement (Second) of Contracts at section 205: "Every contract imposes on each party a duty of good faith and fair dealing in its performance and its enforcement." The Comments suggest a variety of meanings for "good faith" but perhaps the most perceptive comment is the statement that "its meaning varies somewhat with the context." In the particular context of this case, the College's contract with Baker contained certain undertakings by the College pertaining to the evaluation of faculty members and the faculty member's right to review of unfavorable decisions. The

[ 350 Pa. Super. Page 85]

College was required to render a sincere and substantial performance of these contractual undertakings, complying with the spirit as well as the letter of the contract. In other words, to the extent the College undertook to evaluate Baker, the evaluation and review process must be honest and meaningful, not a sham formality designed to ratify an arbitrary decision already made.

We emphasize that our holding is a narrow one. This case does not present the more difficult issue whether an obligation of good faith and fair dealing should be implied into any employer-employee relationship, including at-will employment. Consequently, we do not decide that issue. We hold only that when an employer such as the College here expressly provides in an employment contract for a comprehensive evaluation and review process, we may look to the employer's good faith to determine whether the employer has in fact performed those contractual obligations. The College's obligation to act in good faith extends only to the performance of those contractual duties it has chosen to assume.

The record admits of no conclusion other than that the College at all times acted in good faith towards Baker. The College complied fully with the evaluation and appeal provisions of the contract,*fn5 and we find that these procedures were not a sham but guaranteed Baker a fair and meaningful review. Baker had an ample opportunity to present his side of the story to all those involved in the review process,

[ 350 Pa. Super. Page 86]

    and the record is devoid of any evidence of bias, arbitrariness, misrepresentation or any other sharp practice on the part of the College.

Under the guise of "good faith," Baker would have us conduct a de novo review of the College's decision not to renew his contract. We decline Baker's invitation to re-examine the merits of the College's decision or to apply some sort of negligence standard to the myriad of "sub-decisions" involved, such as how much weight to give certain facts or how much investigation into a particular allegation was warranted,*fn6 because we hold that the only reasonable construction of the contract between the parties is that at all times the College retained its sole discretion to decide whether to reappoint Baker. The Faculty Handbook states that " [t]o merit consideration for reappointment, an Assistant Professor must have a record of good teaching, professional growth, and service to the College." (Emphasis added.) In other words, even if Baker had received the most favorable evaluation possible, he would not be contractually entitled to reappointment; he would simply "merit consideration." The College still retained the freedom not to rehire him; Baker had no contractual right to reappointment under any circumstances. Therefore, upon finding, as we have, that the College performed all its contractual

[ 350 Pa. Super. Page 87]

    obligations fully and in good faith, the terms of the contract require that our inquiry end.

We know of no legal principle which forbids the parties from entering into such a contract and we decline to create one. The evaluation of the performance of a college professor and of his or her suitability to the educational needs, goals and philosophies of a particular institution necessarily involves many subjective, nonquantifiable factors. The assessment of these factors is best performed by those closely involved in the life of the institution, not by judges. It is with good reason that the College retains discretion not to reappoint non-tenured faculty members. Even if the faculty member's performance has been exemplary, measured by the most objective yardstick possible, the institution may wish to hire another person because, for example, an individual with superior qualifications has become available, or the institution decides that this particular faculty member does not mesh with the institution's educational goals and philosophies, however excellent his work and distinguished his scholarship. As a matter of sound public policy an institution of higher learning should be free to make such decisions. We believe that engrafting a right to judicial second-guessing of the soundness of personnel decisions made under contracts such as Baker's would hamper this decision-making freedom. It would require courts to inquire into the truth or falsity of matters which are not amenable to such determination, and it would tend to convert an express contract for a specific term into one of indefinite duration, which we have already held in Krasik is improper.

We further believe that this holding is not unfair to the employee in this context. Baker was not an at-will employee subject to his employer's whim and caprice. He was protected by an express contract for a specific term. During the term of that contract the College could not dismiss him without cause. When the decision not to reappoint him was made, Baker was entitled to several levels of internal appeals. The College complied fully with Baker's appeal

[ 350 Pa. Super. Page 88]

    rights. Baker received the full benefit of his two-year contract. The College's decision not to renew that contract was substantively within its discretion and was made in compliance with the procedures set forth in the contract. Therefore, Baker's contractual claim fails as a matter of law and the trial court correctly entered summary judgment in favor of the College.

Affirmed.

SPAETH, President Judge, dissenting:

This appeal is from two orders. I believe that both orders should be reversed.

In its first order the trial court sustained the College's preliminary objections in the nature of a demurrer, holding that insofar as the Gluhman evaluations were concerned, appellant had stated no claim against the College for defamation because the evaluations were absolutely privileged. The standard by which we must review a trial court's action sustaining a demurrer is as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983), quoting Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231 (1983).

Applying this standard, I conclude that it cannot be said "with certainty that no recovery is ...


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