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QUINN v. LIMITED EXPRESS

June 9, 1989

KATHLEEN QUINN, Plaintiff
v.
LIMITED EXPRESS, INC., and JAYNE L. SAINER, Defendants



The opinion of the court was delivered by: SMITH

 This removal action, before this Court pursuant to diversity jurisdiction, presents us with a Motion for Summary Judgment by defendants, Limited Express, Inc. (Limited) and Jayne L. Sainer (Sainer). On February 19, 1988, plaintiff commenced an action against the defendants *fn1" alleging slander, slander by compelled self-publication, and assault and battery.

 Plaintiff, a former employee of Limited, contends that Limited and Sainer are liable for slander because Sainer, plaintiff's supervisor at Limited, accused plaintiff of the theft of Limited's funds totalling approximately $ 2.87. Plaintiff also alleges that Limited and Sainer are liable for slander because plaintiff was compelled to publish this defamatory accusation to a prospective employer. Finally, plaintiff asserts that Limited and Sainer are liable for an assault and battery arising out of a polygraph examination which the plaintiff submitted to as part of her employer's investigation regarding an earlier unrelated disappearance of funds.

 First, we address plaintiff's claim of slander. Defendants assert summary judgment is appropriate inasmuch as this Court previously ruled in its disposition of defendant's Motion to Remand that no cause of action existed because the alleged defamatory statements were conditionally privileged. Plaintiff contends that discovery subsequent to the Court's ruling on the Motion to Remand shows that the alleged defamatory statements may have been published to non-supervisory employees.

 A conditional privilege does exist in this instance because it is reasonable that the alleged defamatory statements would be communicated to plaintiff's supervisors. Gresh v. Potter McCune Co., 235 Pa. Super. 537, 344 A.2d 540 (1975). Plaintiff, however, has produced evidence which may establish an abuse of that privilege, that is, the publication of the defamatory statement to non-supervisory employees. Since there is a genuine issue of fact regarding the abuse of the privilege, summary judgment will be denied as to plaintiff's count of slander. *fn2"

 Second, we address defendants' Motion for Summary Judgment as to plaintiff's claim of slander due to compelled self-publication. Defendants, again, rely on Judge Teitelbaum's previous ruling in this case which held that no cause of action for compelled self-publication existed in Pennsylvania. Plaintiff admits this, but argues that we should follow the Pennsylvania Superior Court's liberal trend with regard to defamation and recognize this novel cause of action. Plaintiff cites as persuasive authority only the Minnesota Supreme Court decision of Lewis v. Equitable Life Assurance, 361 N.W.2d 875 (Minn. 1985), which recognized this cause of action.

 As a federal district court presiding over a diversity matter, we must apply the substantive law of the forum state to the dispute between the parties. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). We have carefully researched this area of the law and have failed to find any Pennsylvania authority even addressing the issue. Moreover, as noted by the defendants, Pennsylvania statutory law provides that the defendant show seven elements to prove a claim of defamation, including "its publication by the defendant." 42 Pa.C.S.A. § 8343(a)(2) (1978). For these reasons, we decline to accept the plaintiff's invitation to recognize a new cause of action. The defendants are entitled to summary judgment as a matter of law with regard to plaintiff's claim for slander due to self-publication.

 Finally, we address the defendants' Motion for Summary Judgment as to plaintiff's claim for assault and battery. Plaintiff alleges that she was compelled to submit to a polygraph examination at the request of defendants on January 2, 1987. This polygraph was administered as part of an investigation into an unrelated disappearance of the store's funds in December 1986. Plaintiff admits that she was not required to take the polygraph and that she signed the release forms *fn3" before the examination. Nevertheless, plaintiff asserts she felt compelled to take the polygraph. (Quinn Depo. p. 73). Plaintiff contends that the actual administration of the polygraph was unlawful because of section 7321 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 7321 (1972) Therefore, she argues that the written releases were invalid and the contact with her body was tantamount to an assault and battery.

 Section 7321 provides:

 
A person is guilty of a misdemeanor of the second degree if he requires as a condition for employment or continuation of employment that an employee or other individual shall take a polygraph test or any form of a mechanical or electrical lie detector test.

 18 Pa.C.S.A. § 7321(a). This section has been recognized as a statement of Pennsylvania's public policy regarding the administration of polygraphs to employees. See Polsky v. Radio Shack, 666 F.2d 824 (3rd Cir. 1981). Violations of this section by an employer have given rise to causes of action for tortious discharge, invasion of privacy, and intentional infliction of emotional distress Polsky, 666 F.2d at 824; Molush v. Orkin Exterminating Co., Inc., 547 F. Supp. 54 (E.D. Pa. 1982); Leibowitz v. H. A. Winston Co., 342 Pa. Super. 456, 493 A.2d 111 (1985). Moreover, employee claims of this nature have been actionable despite the fact that the employee signed a release of liability associated with the employer's request for a polygraph. Id.

 An employee's signed release of liability associated with the administration of a polygraph was not a bar to litigating his claims in Liebowitz v. H.A. Winston Co., Pa. Super. , 493 A.2d at 111. The superior court held that a jury should decide whether the employee's signed release was valid because the evidence supported a reasonable inference that compulsion may have been present. As a result, the plaintiff in Liebowitz was able to obtain a new trial on his claims for wrongful discharge, invasion of privacy and intentional infliction of emotional distress.

 Plaintiff's argument that the releases are invalid due to the fact that she was compelled to sign them is persuasive, at first blush. There is a distinction, however, between the written release of liability upon which plaintiff bases her argument, and the consent plaintiff physically and nonverbally exhibited when the polygraph was given. At issue is whether plaintiff consented to the administration of the polygraph. Hence, whether plaintiff was compelled to sign the release of liability is irrelevant.


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