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VINCENT X. YAKOWICZ v. ARTHUR T. MCDERMOTT (10/18/88)

decided: October 18, 1988.

VINCENT X. YAKOWICZ, APPELLANT
v.
ARTHUR T. MCDERMOTT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Arthur T. McDermott v. Vincent X. Yakowicz, No. 1355 S 1984.

COUNSEL

Laura Fredricks, Deputy Attorney General, with her, Gregory R. Neuhauser, Senior Deputy Attorney General and Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, for appellant.

Spero T. Lappas, Stefanon & Lappas, for appellee.

Judges Palladino and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail did not participate in the decision in this case.

Author: Palladino

[ 120 Pa. Commw. Page 481]

Vincent X. Yakowicz (Appellant) appeals from an order of the Court of Common Pleas of Dauphin County denying his post-trial relief motion for judgment notwithstanding the verdict (JNOV) or a new trial. For the reasons which follow, we reverse the denial of Appellant's post-trial motion for JNOV and order the trial court to enter judgment in favor of Appellant.

Arthur T. McDermott was hired by the Pennsylvania Department of Treasury (Treasury) on March 28, 1983 for the position of deputy counsel. He was assigned to assist Appellant, who was Treasury's Chief Deputy Counsel. On July 22, 1983, Appellant wrote McDermott a memo entitled "You Or I Are Leaving." The memo contained Appellant's derogatory evaluation of McDermott's work on three projects Appellant had assigned to McDermott. Language used in the memo was profane and crude. In addition to giving this memo to McDermott, Appellant circulated it to his three superiors -- the Treasurer, the Deputy Treasurer and Treasury's Chief Counsel. After McDermott read the memo, he requested and had a meeting with the Treasurer, the Deputy Treasurer, and Treasury's Chief Counsel. As a result of this meeting, McDermott resigned his position effective September 30, 1983. In the interim between the meeting and September 30, 1983, McDermott was reassigned to work with Treasury's Chief Counsel.

[ 120 Pa. Commw. Page 482]

On May 2, 1984, McDermott filed a civil action against Appellant, based on the memo, containing two counts. One count alleged defamation and the other false light.*fn1 A jury trial was held, during which the trial court granted Appellant's motion for a non-suit on the false light count. On the defamation count, the jury returned a verdict in favor of McDermott in the amount of $60,000 in compensatory damages and $10,000 in punitive damages. Appellant filed a post-trial motion for JNOV or a new trial; McDermott filed a post-trial motion for a new trial on the amount of damages he should receive. The trial court denied both post-trial motions. The verdict was reduced to judgment and docketed on October 14, 1987. Appellant filed a timely notice of appeal to this court.

Appellant asserts that JNOV should have been entered in his favor because as a matter of law (1) he is immune to liability for defamation because of his government position and (2) the memo, in the context in which it was written, is not defamatory.*fn2 Appellant requests that we reverse the trial court's denial of his motion for JNOV and direct the trial court to enter judgment in his favor. Our scope of review from the refusal to enter JNOV is limited to determining whether the trial court committed an abuse of discretion. Maloney v. City of Philadelphia, 111 Pa. Commonwealth Ct. 634, 535 A.2d 209 (1987). JNOV is an extreme remedy and

[ 120 Pa. Commw. Page 483]

    should be entered only in a clear case after the evidence and all reasonable inferences derived therefrom have been evaluated in the light most favorable to the verdict winner. Id. The Pennsylvania Supreme Court has defined abuse of discretion as follows:

'"An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, ...


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