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MCFADDEN v. BURTON

August 13, 1986

WILLIAM McFADDEN, Plaintiff
v.
RICHARD BURTON, BROOK WILLIAMS, RICHARD DICKES, DR. JOHN K. ESHLEMAN and CELEBRITY LIMOUSINE SERVICE, INC., a corporation of the Commonwealth of Pennsylvania, Defendants



The opinion of the court was delivered by: DITTER

DITTER, J.

 MEMORANDUM AND ORDER

 All defendants in this diversity action have moved for summary judgment. For reasons that follow, the motions of all defendants except Celebrity Limousine Service are granted. The motion of Celebrity Limousine Service is granted in part and denied in part.

 Plaintiff suffers from a congenital defect that has resulted in the shortening of his left leg. In June, 1983, he began driving and performing promotion work for defendant Celebrity Limousine Services, Inc., which is owned by defendants Richard Dickes and John K. Eshleman. Plaintiff was to be paid $200 per week plus fifteen percent of the gross receipts Celebrity secured from plaintiff's efforts.

 In July, 1983, the production company for the play Private Lives retained Celebrity to provide limousine services while the play was running in Philadelphia. Plaintiff was assigned to meet certain members of the company, including Richard Burton and Brook Williams, at 30th Street train station and drive them to the Palace Hotel. Two days later, on July 19, 1983, plaintiff drove Williams and Sally Burton, Burton's wife, to a supermarket, where he helped his passengers carry packages to the car. Later that same day, plaintiff drove Burton, Mrs. Burton, and Williams to other stores and returned them to the hotel.

 Plaintiff alleges that on July 20, 1983, Dickes told him that he would be reassigned from the Burton job, but would continue to drive for the rest of the production company. He further alleges that Williams asked Celebrity to remove plaintiff as the driver for the Burton job because the party was embarrassed to have a person who walked with a limp carrying packages for them. According to plaintiff, Burton said that he, his wife, and Williams did not feel comfortable riding with a handicapped driver, and then requested that Dickes not allow the media to know of his dissatisfaction with plaintiff.

 Plaintiff continued to drive for Celebrity until August 15, 1984, when he was told by Dickes that business was slow and that the company could not afford to pay him a salary.

 Plaintiff then filed this nine-count action in the United States District Court for the District of New Jersey. The complaint alleges that Burton *fn1" and Williams published statements that were slanderous per se and made with the intent to humiliate plaintiff and cause him emotional distress. It further alleges that Burton and Williams unjustifiably interfered with plaintiff's right to pursue a lawful business, plaintiff's prospective business advantage, and plaintiff's contractual rights. As against Dickes, Eshleman, and Celebrity, plaintiff alleges claims sounding in wrongful discharge, breach of contract and negligent failure to investigate or perform a proper evaluation of plaintiff. Finally, plaintiff advances a claim against all defendants under the New Jersey law against discrimination.

 On motion of the individual defendants, the Honorable Maryanne Trump Barry transferred the matter to this court, finding that the New Jersey district court could not exercise personal jurisdiction over the individual defendants and that the interests of justice warranted transfer.

 My first task in resolving these motions is to determine whether Pennsylvania or New Jersey choice-of-law provisions apply to the various counts of plaintiff's complaint. Ordinarily, when an action is transferred from one district to another, the transferee court is to apply the choice-of-law rules of the state of the transferor court. VanDusen v. Barrack, 376 U.S. 612, 638-39, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964). However, where a transfer is effected because the transferor court lacks jurisdiction over the defendant, the transferee court is to apply the choice-of-law provisions of the state in which the transferee court is held. See, e.g., Roofing and Sheet Metal Services v. La Quinta Motor Inns, Inc., 689 F.2d 982, 991-93 (11th Cir. 1982); Ellis v. Great Southwestern Corp., 646 F.2d 1099 (5th Cir. 1981); Reyno v. Piper Aircraft Co., 630 F.2d 149, 165 (3d Cir. 1980), rev'd on other grounds, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). When a case involving multiple defendants is transferred, the transferee court must distinguish among those defendants over whom the transferor court could and could not properly exercise jurisdiction. See Reyno, 630 F.2d at 164.

 In transferring the matter to this court, Judge Barry stated that the individual defendants were not subject to the in personam jurisdiction of the court. Celebrity did not move to dismiss the complaint for lack of personal jurisdiction and does not assert now that New Jersey lacked jurisdiction over it. Consequently, Pennsylvania choice-of-law provisions will apply to the claims asserted against the individuals and New Jersey choice-of-law provisions will apply to the claims against Celebrity.

 Tort Claims against Burton's Estate and Williams

 The Third Circuit has observed that with respect to tort cases Pennsylvania employs a flexible methodology to choice-of-law problems which combines the "most significant relationship" test espoused in the Restatement (Second) of Conflicts and the "interest-analysis" approach attributed to Professor Currie. See Melville v. American Home Assurance Co., 584 F.2d 1306, 1311-13 (3d Cir. 1978) (citing Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964)). Under this approach, the court should take "into account both the grouping of contacts with the various concerned jurisdictions and the interests and policies that may be validly asserted by each jurisdiction." Id. at 1311. Judge Broderick has summarized this method as follows:

 
'Interest' analysis involves a qualitative appraisal of the relevant states' policies with respect to the controversy before the court so that the court may determine the state which has the most significant interest in the dispute. The Restatement (Second) examines the totality of the contact which each state has with various portions of the controversy, counting and weighing those contacts in order to determine which state possesses the 'most significant relationship' with the dispute.

 Savitt v. City of Philadelphia, 557 F. Supp. 321, 322-23 (E.D. Pa. 1983).

 With respect to the tort claims against Burton's Estate and Williams, it is clear that Pennsylvania has the most significant factual relationship to the dispute. In this case, plaintiff's employment with Celebrity was centered in Pennsylvania. Celebrity's engagement by the Private Lives production company occurred in Pennsylvania. The trips plaintiff undertook on behalf of Celebrity for transportation of the Burton party took place exclusively in Pennsylvania. The alleged statements giving rise to the tort actions were claimed to have been both uttered and heard in Pennsylvania.

 The only relevant New Jersey contacts are plaintiff's domicile, *fn2" his alleged conversation with an individual named Gary Burr about working for Celebrity, and the driving of limousines by McFadden and Celebrity on other occasions. On balance, I believe it is clear that Pennsylvania has the most significant relationship to the issues involved in these counts.

 Plaintiff has failed to articulate with respect to these counts how New Jersey law differs from Pennsylvania law or how New Jersey interests would be thwarted by the application of Pennsylvania law in this case. Therefore, because Pennsylvania has the most significant factual relationship and plaintiff has failed to show how a New Jersey interest would be frustrated, Pennsylvania law will be applied to the tort claims against Burton's estate and Williams. See Denenberg v. American Family Corp., 566 F. Supp. 1242, 1251 (E.D. Pa. 1983) (where parties failed to state difference between laws of two states, forum law would be applied).

 Slander

 Turning to the parties' substantive contentions, defendants argue that even if one accepts as true plaintiff's allegations that Burton and Williams made the statements to Dickes, plaintiff cannot maintain a defamation action based on them. Plaintiff testified that he had heard from Dickes that both Burton and Williams asked Dickes to replace McFadden as the Burton party chauffeur. Dickes allegedly told plaintiff that Williams asked to have McFadden taken off the job because he felt embarrassed about having a person who limped carrying packages in front of or behind him. McFadden deposition at 62, 64, 127 & 132. According to plaintiff, Burton told Dickes that he, his wife, and his secretary did not feel comfortable riding with a handicapped driver. Id. at 64 & 134.

 Defendants argue that plaintiff has failed to meet his burden of proving the defamatory character of the alleged statements. Procedurally, the question whether a statement is capable of a defamatory meaning is one for the court to decide. Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072, 1078 (3d Cir. 1985).

 Under Pennsylvania law, a statement is defamatory if it "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971) (quoting Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962)). The threshold determination of whether a statement is capable of defamatory meaning depends on the general tendency of the words to have such an effect. Corabi, 441 Pa. at 442.

 Plaintiff asserts that defendants' alleged statements are defamatory because they can be construed to "directly impact on plaintiff's ability to work and be a chauffeur." Memorandum of Law in Opposition to the Motions of Defendants for Summary Judgment at 26. To the extent the alleged statements can be construed to mean that defendants believe ...


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