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GIBSON BUTLER v. FLO-RON VENDING COMPANY AND MILTON FRIEDBERG AND ESTELLE FRIEDBERG AND LEE FRIEDBERG AND BARRY FRIEDBERG (03/30/89)

filed: March 30, 1989.

GIBSON BUTLER, APPELLANT,
v.
FLO-RON VENDING COMPANY AND MILTON FRIEDBERG AND ESTELLE FRIEDBERG AND LEE FRIEDBERG AND BARRY FRIEDBERG, APPELLEES. GIBSON BUTLER, APPELLEE, V. FLO-RON VENDING COMPANY AND MILTON FRIEDBERG AND ESTELLE FRIEDBERG AND LEE FRIEDBERG AND BARRY FRIEDBERG, APPELLANTS



Cross-appeals from the judgment of the court of Common Pleas, Civil Division, Philadelphia County, No. 1539 April Term, 1982.

COUNSEL

William A. Habib, Bala Cynwyd, for appellant in No. 3200 and appellee in No. 3252.

Simon J. Rosen, Philadelphia, for appellees in No. 3200 and appellants in No. 3252.

Brosky, Rowley and McEwen, JJ. McEwen, J., files a dissenting statement.

Author: Rowley

[ 383 Pa. Super. Page 637]

These cross-appeals by all the parties are from a judgment entered on a jury verdict in favor of the plaintiff, Gibson Butler (Butler), in an action against Flo-Ron Vending Co., Inc. (Flo-Ron), Milton Friedberg, Estelle Friedberg,*fn1 Lee Friedberg and Barry Friedberg, to recover compensatory and punitive damages for: (1) intentional infliction of emotional distress; (2) defamation; (3) invasion of privacy; (4) malicious prosecution; (5) malicious abuse of process; (6) injurious falsehood; and (7) false imprisonment.

The facts giving rise to this action are as follows. On April 20, 1981, it was discovered that the offices of Flo-Ron, Butler's employer, had been burglarized. Approximately one week later, Butler received a job offer from AVM Vending Company (AVM), and gave Flo-Ron two weeks' notice. Milton Friedberg, the owner of Flo-Ron, suspected Butler of complicity in the burglary and hired a "trouble shooter in the neighborhood" to try to recover from Butler some of the personal jewelry which had been taken during the burglary. Butler was followed by the "troubleshooter" for approximately one month and received from him numerous threats to his life and that of his girlfriend.

Milton Friedberg also asked Butler to submit to questioning by the police. While Butler was being questioned by the police, defendants Barry and Lee Friedberg, who were the sons of Milton Friedberg and employees of Flo-Ron,*fn2 with the assistance of their secretary, Ann Marie Cusack McDowell (McDowell), searched the van that had been provided by Flo-Ron to Butler for use in his employment.

[ 383 Pa. Super. Page 638]

The search was conducted by Barry Friedberg handing boxes from the van to McDowell who then inspected the contents of the boxes for "anything that looked like it didn't belong there." In one of the boxes, McDowell found a small gold ring which was identified by the Friedbergs as one which had been stolen from the Flo-Ron office. Butler was subsequently arrested, charged with receiving stolen property (the ring), and fired from his employment with Flo-Ron by Barry Friedberg. Following Butler's arrest, Lee Friedberg contacted Joseph Valerio, Jr., then the Vice President of AVM Vending Company, and informed him of the criminal charge filed against Butler. As a result of Friedberg's communication, AVM withdrew its previous offer of employment to Butler.

On June 8, 1981, approximately four days following Butler's preliminary hearing on the criminal charges, Barry and Lee Friedberg told McDowell that they put the ring inside a box that was in Butler's van because they felt that he was guilty of the burglary. McDowell reported this conversation to the police in September of 1981. Consequently, the charges against Butler were nol prossed in January of 1982.

Butler commenced the present action in April 1982. A jury trial resulted in a verdict in favor of Butler in the amount of $41,545 compensatory damages against all defendants, and in the amount of $10,000 and $5,000 punitive damages against Lee and Barry Friedberg, respectively. Butler filed a petition for delay damages which was denied, and all parties filed post-verdict motions requesting a new trial which were also denied. These cross-appeals from the judgment entered on the verdict followed.

In the appeal at No. 3252 Philadelphia 1987, defendants Milton, Barry, and Lee Friedberg, as well as Flo-Ron, request a new trial on liability on two related bases. First, they assert that the trial court*fn3 erred in permitting Butler

[ 383 Pa. Super. Page 639]

    to introduce evidence of his character by means of his military record. Secondly, they argue that the first error was compounded when the trial court refused to permit the defendants to impeach Butler by means of a) specific bad acts collateral to the issues in the case, i.e., whether he had been fired by prior employers for stealing and whether or not he had sold stolen property in the past, and b) evidence directly contradicting Butler's assertions that he had been continuously employed. In addition, defendant Flo-Ron requests a new trial on the basis that there was insufficient evidence to establish the corporation's liability for compensatory damages for the actions of any of the individual defendants, and on the basis that the verdict against the corporation for compensatory damages was against the weight of the evidence.

Butler, in his appeal at No. 3200 Philadelphia 1987, also argues that we should grant a new trial, but he argues that the new trial should be limited to the issue of damages. The bases of his request for a new trial limited to damages are that 1) the amount of the compensatory damages is inadequate; 2) the amount of the punitive damages is inadequate; 3) the punitive damages should have been assessed against Flo-Ron as well as Lee and Barry Friedberg individually; 4) the trial court limited Butler's opening argument to the jury; and 5) the trial court should have granted a mistrial or given a cautionary instruction when reference was made to a polygraph examination. Butler also argues that Pa.R.C.P. 238 regarding delay damages is applicable to the present case because the injuries to his reputation and ability to pursue employment were bodily injuries and property damage respectively.

For the reasons set forth below, we affirm the judgment.

APPEAL AT NO. 3252 PHILADELPHIA 1987

The defendants first argue that the trial court erred in permitting Butler to present evidence of his good military record because it was evidence of good character, and such

[ 383 Pa. Super. Page 640]

    evidence is inadmissible unless one's good character has been attacked. We agree, but find the error to have been harmless.

In Greenberg v. Aetna Insurance Co., 427 Pa. 494, 235 A.2d 582 (1967), which involved a claim by an insured to recover fire loss damages payable under fire insurance policies issued to the insured, the Court remanded the case for a new trial because the jury had been improperly charged. Because the case was going to be retried, the Court also addressed the question of whether the trial court had erred in admitting evidence of the plaintiff's military record. The Court re-stated the well-established rule that "in civil actions evidence of good character or reputation 'is inadmissible unless directly in issue or involved in the nature of the proceedings, and even then evidence of good character is not admissible unless and until it is attacked by evidence to the contrary.'" Id., 427 Pa. at 498, 235 A.2d at 584. Moreover, the Court noted that for a party's character to be an issue within the meaning of this rule, his or her "character must be of particular importance and therefore a material fact in the case." Id. The Court concluded that Greenberg's character was not in issue, and therefore on remand, evidence of his good military record should not be admitted.

Since its decision in Greenberg, the Supreme Court has continued to reiterate the rule regarding evidence of good character applied in Greenberg. Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 312, n. 1, 485 A.2d 374, 379, n. 1 (1984). In consideration of the continuing viability of the rule set forth in Greenberg, and in light of the failure of either the trial court or Butler to distinguish Greenberg from the present case, we find that Greenberg is applicable to the case before us.

The record certified to us in the present case does not disclose that Butler's character was placed in issue. Furthermore, at the time that evidence of his military record was introduced, his good character had not been attacked. Therefore, it was error to permit Butler to admit evidence

[ 383 Pa. Super. Page 641]

    of his military record. However, because there was other evidence of the defendants' liability,*fn4 such as McDowell's unimpeached and uncontradicted testimony that Lee and Barry Friedberg planted the ring in Butler's truck, and the unofficial surveillance of Butler performed at the direction of Milton Friedberg, we find no prejudice to the defendants that warrant a new trial. Shaffer v. Torrens, 359 Pa. 187, 58 A.2d 439 (1948).

The defendants also argue that the trial court compounded its error in permitting Butler to testify concerning his military record when it refused to permit the defendants to impeach Butler by presenting 1) evidence that Butler had not been continuously employed as he had testified, and 2) evidence of specific bad acts such as his having been fired from previous jobs for stealing and his having sold stolen goods.

As to the first of these two arguments we find no merit because the defendants never offered at trial to present evidence which would contradict Butler's testimony that he had been continuously employed, and they were not precluded from presenting such evidence. The defendants only offered to rebut Butler's assertion that he had been continuously employed by evidence that he had been fired from previous jobs. Such evidence does not establish that Butler was not continuously employed because even if Butler had previously been fired from other jobs, he may have immediately found new work, and thereby have been continuously employed. The trial court expressly permitted the defendants to "put some witness on to say I know ...


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