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JOSEPH J. GEYER AND REGINA H. GEYER v. JOHN STEINBRONN (02/03/86)

filed: February 3, 1986.

JOSEPH J. GEYER AND REGINA H. GEYER, APPELLANTS,
v.
JOHN STEINBRONN, RAYMOND MILEY, SR., MILEY SECURITY, INC., MILEY DETECTIVE AGENCY, INC., AND SERVICE REVIEW, INC. JOSEPH J. GEYER AND REGINA H. GEYER V. JOHN STEINBRONN, RAYMOND MILEY, SR., MILEY SECURITY, INC., MILEY DETECTIVE AGENCY, INC. AND SERVICE REVIEW, INC. APPEAL OF JOHN STEINBRONN AND MILEY SECURITY, INC.; JOSEPH J. GEYER AND REGINA H. GEYER V. JOHN STEINBRONN, RAYMOND MILEY, SR., MILEY SECURITY, INC., MILEY DETECTIVE AGENCY, INC. AND SERVICE REVIEW, INC. APPEAL OF JOHN STEINBRONN, AND MILEY SECURITY, INC.



Appeal from the judgment entered September 10, 1982 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4386 October Term, 1974. Appeal from the judgment entered September 10, 1982 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4386 October Term, 1974. Appeal from the order entered August 13, 1982 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4386 October Term, 1974.

COUNSEL

Edward C. German, Philadelphia, for Service Review, appellant (at 2640 and 2641) and appellee (at 2639).

Stephen C. Vondercrone, Jr., Lansdale, for Steinbronn, appellant (at 2640 and 2641) and appellee (at 2639).

George J. O'Neill, Philadelphia, for Geyer, appellants (at 2639) and appellees (at 2640 and 2641).

Spaeth, President Judge, and Beck and Tamilia, JJ. Spaeth, P.j., files concurring statement. Tamilia, J., joined Judge Spaeth's concurring statement on the issue of punitive damages but otherwise joined Judge Beck's Opinion.

Author: Beck

[ 351 Pa. Super. Page 542]

The instant litigation arose out of an unfavorable employment recommendation concerning plaintiff Joseph Geyer. Plaintiff sued defendants Miley Security Service Inc., his former employer; John Steinbronn, Miley Security's vice president and plaintiff's former supervisor; Raymond Miley Sr., an alleged officer of Miley Detective Agency, Inc., the corporate alter ego of Miley Security; and Service Review, Inc., a mercantile reporting agency.

Plaintiff alleged that defendants communicated to plaintiff's prospective employer, Sears, Roebuck & Co., a false and defamatory report of his employment record which caused Sears not to hire him. Plaintiff's complaint rested on the theories of defamation and intentional interference with prospective contractual relations. Plaintiff's wife Regina Geyer claims for the resulting loss of consortium.

At the close of the jury trial, the court directed verdicts in favor of Raymond Miley Sr., Miley Detective Agency and Service Review Inc. The jury returned a verdict in favor of plaintiffs against Steinbronn and Miley Security Services, assessing $100,000 in compensatory damages for Mr. Geyer, $35,000 damages for Mrs. Geyer's loss of consortium, and $50,000 punitive damages against Steinbronn only.

[ 351 Pa. Super. Page 543]

Appellants*fn1 John Steinbronn and Miley Security Services appeal from the judgment entered on the verdict, raising issues which we will divide for the sake of convenience into several categories. First, appellants attack the verdicts on the defamation and intentional interference with contract counts as against the evidence, the weight of the evidence and the law. Secondly, they claim error in the court's charge to the jury on these counts.*fn2 Thirdly, they contend that the damages awarded were excessive. Finally, appellants argue that the trial court abused its discretion in opening a judgment of non pros entered in favor of all defendants, thereby allowing the action to proceed to trial.

Plaintiffs cross-appeal from the trial court's orders directing verdicts in favor of Raymond Miley, Sr. and Service Review Inc.*fn3 and denying various other motions of plaintiffs. Plaintiffs allege the following specific errors:

1. The Court Erred In Refusing Plaintiffs' Motion To Amend The Caption and Complaint To Correct Misnomer of Raymond Miley, Sr., Defendant.

2. The Court Erred In Refusing To Admit The Deposition Of John Steinbronn As Plaintiffs' Evidence Against Service Review, Inc., And All Other Defendants.

3. The Court Erred In Granting The Motions Of Defendants Service Review, Inc., And Raymond Miley For A Directed Verdict.

4. The Court Erred In Refusing Plaintiffs' Points For Binding Instructions; Plaintiffs' Motions For Directed Verdicts Against Service Review, Inc., And Raymond Miley, Jr., And Plaintiffs' Motions For Judgment N.O.V. Upon The Whole Record Against Said Defendants

[ 351 Pa. Super. Page 544]

Or In The Alternative, For A New Trial As To Those Defendants Only.

5. The Lower Court Erred In Denying Plaintiffs' Motion For Assessment Of Damages For Delay Pursuant To Pa.R.C.P. No. 238.

For the reasons stated below we affirm.

NON PROS APPEAL

Pursuant to Pa.R.A.P. 311(d)(1)(i), appellants contest on appeal the trial court's opening of a non pros judgment entered in their favor. See Valley Forge Historical Society v. Washington Memorial Chapel, 330 Pa. Super. 494, 479 A.2d 1011 (1984), allocatur denied, October 15, 1984.

Plaintiffs commenced this action by filing a summons in trespass on October 30, 1974. On October 23, 1975, defendants Steinbronn, Miley Sr., and the Miley companies filed a praecipe for rule to file a complaint within twenty days. The praecipe and rule were served on plaintiffs, but plaintiffs did not file a complaint within the requisite time period. On November 28, 1975, a judgment of non pros was entered in favor of all the defendants. On December 12, 1975, plaintiffs petitioned the court to strike or open the non pros judgment. The plaintiffs' petition was granted on June 17, 1976.

A petition to open a judgment of non pros is directed to the equitable powers of the court and as such, is "'by way of grace and not of right. Its grant or refusal is peculiarly a matter for the lower court's discretion. An appellate court may not reverse the lower court's ruling unless an abuse of discretion is clearly evident . . . .'" Lewis v. Reid, 244 Pa. Super. 76, 80, 366 A.2d 923, 924 (1976) (citation omitted), aff'd on reargument, 244 Pa. Super. 599, 371 A.2d 872 (1976), allocatur denied, April 7, 1977.

Three requirements must be satisfied before a non pros judgment may be opened: (1) the petition to open must be promptly filed; (2) a reasonable explanation or excuse must be offered for the petitioner's defective conduct (here, the

[ 351 Pa. Super. Page 545]

    failure to file a timely complaint), and (3) facts constituting grounds for petitioner's underlying cause of action must be alleged. Wurster v. Peters, 318 Pa. Super. 46, 464 A.2d 510 (1983); Reid.

In the case sub judice, plaintiffs filed their petition to open the non pros judgment within fifteen days of the entry of said judgment; hence, the petition to open was promptly filed. Furthermore, the complaint attached as an exhibit to the plaintiffs' petition to open averred facts establishing grounds for a cause of action in defamation and a cause of action for intentional interference with prospective contractual relations. See Kennedy v. Board of Supervisors of Warminster Township, 243 Pa. Super. 46, 364 A.2d 442 (1976); see also discussion of both substantive issues, infra. Finally, plaintiffs explained that their complaint was not filed within the time frame stipulated by the court's rule because plaintiffs' counsel and defendants' counsel agreed to an extended filing date for plaintiffs' complaint.

Given these circumstances, we hold that the trial court did not clearly abuse its discretion in finding that the plaintiffs met the criteria for opening the judgment of non pros, and accordingly, we affirm the opening of that judgment.

FACTUAL BACKGROUND

Plaintiff Joseph Geyer applied for employment as a security assistant with Sears, Roebuck & Co. in December 1972 and again in August 1973. He listed Miley Security Services on his application as one of his former employers and stated as his reason for leaving, "Could not get along with vice president [Steinbronn]. Resigned." Plaintiff was interviewed by Sears and offered a position which he accepted. R. 526a-527a, 531a. On October 15, 1973, Iva Reiter, a personnel manager for Sears, wrote Geyer instructing him to report on November 19, 1973 for a physical examination and to begin work. Her letter also informed Geyer that Sears would conduct a routine investigation of his employment references and personal background.

[ 351 Pa. Super. Page 546]

Sears engaged Service Review to conduct the investigation. Service Review's initial report stated that no criticisms were forthcoming from any contact, including Miley Security. At the same time, though, Sears sent its own reference request to several of Geyer's former employers. On October 25, 1973, Steinbronn responded to this request with a letter containing the following statements concerning Geyer:

In reply to your request for information on Joseph J. Geyer.

1. In the two month period Joseph Geyer was employed as a manager of Security Guards, he could not cope with the duties assigned.

     a. He would leave the office and revert to drinking and use a company car.

     b. He was informed not to use a company car for any reason. Taking a 1972 vehicle he did at 10:00 p.m. on Luzerne Street run head on into a pole -- resulting in $800.00 in damages.

     c. He was fired as a result of his failure to obey directives and orders.

     d. His signature has been found on several checks as an endorsor. By letter we requested of him to call our office for an appointment, as we are investigating forgeries -- but he failed to respond.

     e. Our case is being turned over to the District Attorney of Bucks County and I am sure he will be sent for, to explain his signature or disprove his signature.

     f. His services were poor and in no case would we re-employ.

Mrs. Reiter telephoned Geyer to discuss the conflicting reports. Geyer provided her with a favorable letter purportedly signed by Steinbronn, dated May 17, 1973.*fn4 Sears then requested Service Review to conduct a personal interview with Steinbronn. Service Review sent Wayne Rowland, a field inspector, to interview Steinbronn. Rowland

[ 351 Pa. Super. Page 547]

    was instructed simply to report Steinbronn's statements to Iva Reiter without any further evaluation or verification. Rowland's narrative report of the interview reads as follows:

Subject worked here as a security guard from 3-12-73 to 5-13-73.

Subjects file was not here at this office as his file has been forwarded to the lawyers office of the Miley Security Inc. for the turning over to the D.A.'S office in Bucks County for possible charges being filed against the named subject for theft by forgery.

A. Many checks have been forged and they are in the process of checking various avenues that all lead ...


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