The opinion of the court was delivered by: J. CURTIS JOYNER
This civil matter is before the court by motion of the Plaintiff, Norman L. Johnson, Ph.D. ("Johnson") to dismiss the counterclaim for defamation filed April 4, 1994 by Defendant Resources for Human Development, Inc. ("RHD") in Defendant's Answer With Affirmative Defense And Counterclaim To Plaintiff's Amended Complaint. For the reasons below, Plaintiff's motion is denied.
RHD's counterclaim arose on or about June 1, 1993 when Johnson prepared and published an allegedly defamatory memorandum to certain federal, state and local government offices. RHD, a non-profit organization sponsoring government-funded social service programs, terminated Johnson as a clinical coordinator on June 15, 1993. Johnson, a black plaintiff claiming discrimination in violation of 42 U.S.C. § 1981 and §§ 2000e-2000e-5 ("Title VII"), seeks dismissal of RHD's counterclaim by asserting a privilege to communicate a matter of public concern or appertaining to public funds to persons authorized to act in the public interest. RHD opposes Johnson's motion by asserting that Johnson abused his conditional privilege by excessive publication and by intending only to protect a private interest.
II. STANDARDS APPLICABLE TO A RULE 12(b)(6) MOTION TO DISMISS
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted is the appropriate method by which to challenge the legal sufficiency of a claim. See e.g. United States v. Marisol, Inc., 725 F. Supp. 833, 836 (M.D. Pa. 1989)). The standard for dismissal of a counterclaim is the same as the standard for dismissal of a complaint. United States v. Union Gas Co., 743 F. Supp. 1144, 1150 (E.D. Pa. 1990).
In ruling upon a 12(b)(6) motion to dismiss, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be considered. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). The court must accept as true all of the matters pleaded, and construe all reasonable inferences drawn therefrom most favorably to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Hough/Loew Assoc., Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1142 (E.D. Pa. 1991). The court determines whether the allegations constitute a statement of a claim under Rule 8(a) and whether the pleader is entitled to any relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80, (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d. Cir 1988).
A complaint is properly dismissed under Rule 12(b)(6) only if it appears certain that no set of facts can be proved which would entitle the pleader to relief. Conley, 78 S. Ct. at 101-2; Ransom, 848 F.2d at 401. A complaint may be dismissed under Rule 12(b)(6) when the allegations indicate the existence of an affirmative defense, but the defense must clearly appear on the face of the pleading. Jordan v. Fox, Rothschild, O'Brien & Frankel, 787 F. Supp. 471, 480, (E.D. Pa. 1992) (granting motion to dismiss based on qualified immunity). A privilege to publish defamatory matter is an affirmative defense that has been considered on a Rule 12(b)(6) motion to dismiss, Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069, 1075 (3d Cir. 1988), but an affirmative defense will not generally support a Rule 12(b)(6) motion to dismiss. Fortner v. Thomas, 983 F.2d 1024, 1028-9 (11th Cir. 1993).
Ruling on Johnson's motion requires the court to determine whether RHD's allegations (1) fully plead an action for defamation, (2) permit Johnson to assert privilege as an affirmative defense, and (3) plead that Johnson abused any privilege.
A. RHD HAS FULLY PLEADED A PRIMA FACIE CASE FOR DEFAMATION
The court must initially determine whether the complained-of statements are reasonably capable of conveying the alleged defamatory meaning to the publisher's intended recipients. See e.g Weinstein v. Bullick, 827 F. Supp. 1193, 1196 (E.D. Pa. 1993) (citing e.g. Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987)); Pino v. Prudential Ins. Co., 689 F. Supp. 1358, 1365 (E.D. Pa. 1988). Statements which harm a person's business or profession, lower a person's reputation in the community or deter third persons from dealing with the subject of the statement convey a defamatory meaning. Pino, 689 F. Supp. at 1365; Elia v. Erie Ins. Exch., 430 Pa. Super. 384, 390, 634 A.2d 657, 660 (1993). See also Baker, 532 A.2d at 402. Corporations may claim defamation for language which imputes incompetence, dishonesty or lack of integrity in business conduct. Zerpol Corp. v. DMP Corp., 561 F. Supp. 404, 408-9 (E.D. Pa. 1983), Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 319-20, 182 A.2d 751, 753-4 (1962). Opinions are actionable which in context reasonably imply to intended recipients that undisclosed defamatory facts justify the opinion. Baker, 532 A.2d at 402; Dougherty v. Boyertown Times, 377 Pa. Super. 462, 478, 547 A.2d 778, 782-3 (1988).
The court accepts as true RHD's allegation that Johnson's memorandum is defamatory. RHD quotes Johnson's memorandum to allege that Johnson defamed RHD's operations and personnel, and Johnson does not ...