v. Commonwealth, 500 Pa. 326, 330-32, 456 A.2d 979, 981-82 (1982).
The issue of whether under federal labor law an individual employee may enter into a contract with his employer, independent of a collective bargaining agreement in place between the exclusive bargaining agent and his employer, was considered by the Supreme Court in J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 339, 64 S. Ct. 576, 581, 88 L. Ed. 762 (1944). In that case, the Supreme Court concluded, "we know of nothing to prevent the employee's because he is an employee, making any contract provided it is not inconsistent with a collective bargaining agreement or does not amount to or result from or is not part of an unfair labor practice." Relying by analogy upon the Supreme Court's decision in J.I. Case Co., plaintiff contends that, under Pennsylvania law, he and Temple were free to enter into the contract here at issue because the contract's terms were "not inconsistent" with the collective bargaining agreement between Temple and TAUP.
(See Plf.'s Mem. Contra Defs.' Mot. Summ. J., doc. no. 34 at 24-25 (quoting J.I. Case, Co., 321 U.S. at 339, 64 S. Ct. at 581)) Plaintiff recognizes, however, that if resolution of his contract claim requires interpretation of the Temple/TAUP collective bargaining agreement, then the claim is subject to the collective bargaining agreement's grievance procedures and is, therefore, not properly before this Court. (See Plf.'s Mem. Contra Defs.' Mot. Summ. J., doc. no. 34 at 27-28 (citing Adam v. Benjamin, 426 Pa. Super. 543, 627 A.2d 1186 (Pa. Super. 1993) (interpreting pre-emptive force of § 301 of the Labor Management Relations Act), appeal denied, 642 A.2d 482 (1994), and cert. denied, 115 S. Ct. 92 (1994)))
Following plaintiff's own analysis, his contract claim must be dismissed. Plaintiff contends that his contract with Temple was for "a fresh and fair [tenure] review which would follow the procedures outlined in the collective bargaining agreement and the faculty handbook."
(Plf.'s Mem. Contra Defs.' Mot. Summ. J., doc. no 34 at 25) The Court can not possibly analyze whether this alleged contract was breached absent interpretation of the Temple/TAUP collective bargaining agreement. Proper resolution of plaintiff's claim was, therefore, left to the collective bargaining agreement's grievance procedures.
As noted previously, plaintiff requested that TAUP submit his grievance to arbitration. TAUP's refusal to honor this request, however, did not give plaintiff the "unfettered right" to sue his employer. See Ziccardi, 500 Pa. At 332, 456 A.2d at 981-82. In the absence of an allegation of collusion between TAUP and Temple, not present here, plaintiff's remedy was a state court action against TAUP for breach of its fiduciary duty to represent him. See Id. at 330-32, 456 A.2d at 981-82. Count IV of the second amended complaint will, therefore, be dismissed.
Count V of the second amended complaint, alleging defamation, will also be dismissed. The statements made by defendants in the course of plaintiff's 1993 tenure evaluation which were repeated to the Faculty Senate Personnel Committee in February 1994, cannot support a claim for defamation because these statements were made with plaintiff's consent and, therefore, under Pennsylvania law they are absolutely privileged. Baker v. Lafayette College, 350 Pa. Super. 68, 504 A.2d 247 (Pa. Super. 1986) (appellant college professor's consent to publication of formal evaluations of his performance gave appellee college absolute privilege against professor's defamation claim), aff'd on other grounds, 516 Pa. 291, 532 A.2d 399 (Pa. 1987). This absolute privilege applies even if the statements were made with "ill will, negligence or actual malice (knowledge of or recklessness as to falsity)." Id. at 250 (citations omitted); see Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 483 A.2d 456, 463 (Pa. Super. 1984) (one who publishes defamatory matter within scope of an absolute privilege is immune from liability regardless of occasion or motive) (citing Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (Pa. 1963)); Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 585 A.2d 1022, 1024 (Pa. Super.) (same), appeal denied, 600 A.2d 539 (Pa. 1991).
Plaintiff admits that he "consented to the review by the Faculty Senate Personnel Committee of his tenure review file." (Pl.'s Mem. Contra Defs.' Mot. Summ. J., doc. no. 34 at 30) However, plaintiff argues that the Baker case, where the Superior Court held that the faculty member's consent to the evaluation process cloaked statements made in connection with that process with absolute privilege, although affirmed by the Pennsylvania Supreme Court, was not affirmed on the ground of privilege, but instead on the ground that the statements there at issue were not capable of defamatory meaning. (Id. at 29-30) Therefore, according to plaintiff, Baker is not the law of Pennsylvania on the availability of absolute privilege to defendants. (Id.)
Although plaintiff is correct that a ruling of the Superior Court is not binding on this Court, simply because the Pennsylvania Supreme Court did not reach the absolute privilege issue in Baker does not mean that the Superior Court's ruling is stripped of all value. "In the absence of guidance from the state's highest court, we are to consider decisions of the state's intermediate appellate courts for assistance in predicting how the state's highest court would rule." Gares v. Willingboro Township, 90 F.3d 720, 1996 U.S. App. LEXIS 18155, 1996 WL 413987 at * 4 (3d Cir. 1996) (citation omitted); see Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir. 1991) (in predicting state law, federal court cannot disregard decision of state's intermediate appellate court unless convinced that state's highest court would rule otherwise), cert. denied, 507 U.S. 973, 113 S. Ct. 1417, 122 L. Ed. 2d 787 (1993). Additionally, although the Pennsylvania Supreme Court has yet to speak to the issue, other courts in Pennsylvania, both state and federal have recognized that an absolute privilege based on consent currently exists in Pennsylvania. See Johnson v. Resources for Human Development, Inc., 860 F. Supp. 218, 222 (E.D. Pa. 1994) (absolute privileges are granted by consent); Frymire v. Painewebber, Inc., 87 Bankr. 856, 859 (Bankr. E.D. Pa. 1988) (same); Miketic v. Baron, 450 Pa. Super. 91, 675 A.2d 324, 328 (Pa. Super. 1996) (same).
The Court finds these decisions persuasive and plaintiff has not argued convincingly why they should not be followed.
Therefore, Count V of the second amended complaint will be dismissed.
As no genuine issues of material fact remain with regard to plaintiff's due process, contract and defamation claims, counts II, IV and V of the second amended complaint are dismissed. Counts I and III of the second amended complaint, containing plaintiff's claims that defendants retaliated against him for his exercise of his right to free speech will proceed to trial.
An appropriate order shall be entered.
AND NOW, this 6th day of August, 1996, upon consideration of the Defendants' Motion for Summary Judgment (doc. no. 31), Plaintiff's response thereto (doc. no. 34), the Defendants' reply (doc. no. 37), Plaintiff's surreply (doc. no. 39) and the Defendants' surreply (doc. no. 40), it is hereby ORDERED that the Defendants' motion is GRANTED as to Counts II, IV and V of the second amended complaint and DENIED as to Counts I and III.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO