McGonigle, 955 F. Supp. 374, 382 (E.D.Pa. 1997). Here, accepting
as true Plaintiff's contention that it was Manfredy who contacted
him, the fee agreement nevertheless called for Remick to
provide services to Manfredy, who resides in Indiana. By his own
pleading, Plaintiff avers that he has a "national practice
specializing in sports and entertainment law," through which he
presumably targets and conducts business on behalf of
out-of-state residents and on the soil of states other than
Pennsylvania. (Complaint, ¶ 13).
Moreover, there is no evidence that any of the fights which
Remick purportedly secured for Manfredy were to take place in
Pennsylvania, or that Manfredy executed the fee agreement or any
endorsement, promotional or fight agreements in Pennsylvania. Mr.
Manfredy's affidavit reflects that the only time he has been in
Pennsylvania was to deplane at the Philadelphia airport en
route to Atlantic City, NJ. In short, there is no evidence to
suggest that Angel Manfredy in any way directed his activities
toward the Commonwealth of Pennsylvania, other than retaining an
attorney whose office is located in Philadelphia and who is a
member of the Pennsylvania Bar. We do not find this sole contact
between Mr. Manfredy and Mr. Remick to be sufficient to confer
specific jurisdiction on this Court. See: Vetrotex Certainteed
Corp. v. Consolidated Fiber Glass, 75 F.3d 147, 151, 152 (3rd
Cir. 1996) (single agreement, standing alone, is an insufficient
ground upon which to exercise specific personal jurisdiction, nor
do informational communications in furtherance of a contract
between a resident and a non resident establish the purposeful
activity necessary for a valid assertion of personal jurisdiction
over non-resident defendant). Accordingly, the Defendants' motion
to dismiss for lack of in personam jurisdiction is granted with
respect to Angel Manfredy, John Manfredy, Kathleen Klaus and
As regards the law firm defendant, given its admission that it
has records of having serviced 54 clients in Pennsylvania, some
of which are present clients, we conclude that sufficient
evidence exists that it has purposefully availed itself of the
privilege of conducting activities within this state to justify
the exercise of general personal jurisdiction over it. However,
Plaintiff's complaint shall be dismissed as against this
defendant as well pursuant to Fed.R.Civ.P. 12(b)(6).*fn2
Plaintiff's claims against D'Ancona & Pflaum are asserted in
Counts I, II, III and VI under the state law theories of
defamation, civil conspiracy and tortious interference with
contractual relations and seek to hold the law firm vicariously
liable for the actions of its employees, Brown and Klaus.
To plead a cause of action for defamation in Pennsylvania, a
must plead and prove each of the following elements:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its
(5) The understanding by the recipient of it as
intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its
(7) Abuse of a conditionally privileged occasion.
Furillo v. Dana Corporation Parish Division, 866 F. Supp. 842,
847 (E.D.Pa. 1994), citing 42 Pa.C.S. § 8343, Elia v. Erie
Insurance Exchange, 430 Pa. Super. 384, 634 A.2d 657, 659 (1993).
Under Pennsylvania defamation law, it is within the trial court's
province to make an initial determination whether or not the
challenged statements are capable of having a defamatory meaning.
In Pennsylvania, a defamatory statement is one that "tends to
so harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from
associating or dealing with him." U.S. Healthcare, Inc. v. Blue
Cross of Greater Philadelphia, 898 F.2d 914, 922 (3rd Cir. 1990)
quoting Birl v. Philadelphia Electric Co., 402 Pa. 297, 303,
167 A.2d 472 (1960). In determining whether or not a particular
communication is defamatory, the court must view the statement in
context with an eye toward the effect the article is fairly
calculated to produce and the impression it would naturally
engender in the minds of the average persons among whom it is
intended to circulate. Baker v. Lafayette College, 516 Pa. 291,
296, 532 A.2d 399, 402 (1987); Corabi v. Curtis Publishing
Company, 441 Pa. 432, 447, 273 A.2d 899, 907 (1971). Opinion,
without more, does not create a cause of action in libel;
instead, the allegedly libeled party must demonstrate that the
communicated opinion may reasonably be understood to imply the
existence of undisclosed defamatory facts justifying the opinion.
Baker, 516 Pa. at 296-297, 532 A.2d at 402.
In this case, Plaintiff is basing his defamation claim against
the law firm defendant on Attorney Klaus' September 11, 1998
letter to plaintiff reiterating that since Angel Manfredy had
terminated plaintiff's engagement on March 2, 1998, any further
efforts by plaintiff to "extort" money from Cedric Kushner
Productions or anyone else on the basis of the fee agreement
would result in the institution of a lawsuit by Manfredy against
Remick for damages arising from Remick's failure to adequately
represent Manfredy. Reading this letter in the context of
responding to plaintiff's threat of legal proceedings against a
firm client and even giving plaintiff the benefit of the doubt
that it was published to other, third parties, we cannot find it
to be anything other than an expression of opinion and
dissatisfaction with Mr. Remick's performance on Mr. Manfredy's
behalf. While we can understand that Mr. Remick may have found
the letter to be personally insulting, we do not find it to be
defamatory. Thus, plaintiff's defamation claim against D'Ancona &
Pflaum is dismissed with prejudice.
We reach a similar conclusion with respect to the plaintiff's
claim for interference with business and contractual
relationships and civil conspiracy. Again, the plaintiff seeks to
hold the law firm vicariously liable for the alleged actions of
its associate attorney, Jeffrey Brown who purportedly conspired
with John Manfredy "to wrongfully terminate Remick's
representation" and "intended to interfere and cause harm to the
contract and future economic relationships that Remick had with
Angel Manfredy by, among other things, setting Remick up to fail
in the negotiations over the Azumah Nelson fight and by
publishing and disseminating false and defamatory information
skill and ability." (Pl's Complaint, ¶ 69).
Pennsylvania has adopted the Restatement (Second) of Torts §
766 (1979) version of tortious interference with contract while
recognizing two distinct branches of the tort: one concerning
existing contractual rights and another regarding prospective
contractual relations. Under the Restatement, "one who
intentionally and improperly interferes with the performance of a
contract (except a contract to marry) between another and a third
person by inducing or otherwise causing the third person not to
perform the contract, is subject to liability to the other for
the pecuniary loss resulting to the other from the third person's
failure to perform the contract." U.S. Healthcare v. Blue
Cross, 898 F.2d at 924-925; Adler, Barish, Daniels, Levin and
Creskoff v. Epstein, 482 Pa. 416, 431, 393 A.2d 1175 (1978),
cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979).
With respect to prospective contractual relations, the
following elements must be demonstrated: (1) a prospective
contractual relation; (2) the purpose or intent to harm the
plaintiff by preventing the relation from occurring; (3) the
absence of privilege or justification on the part of the
defendant; and (4) the occasioning of actual damage resulting
from the defendant's conduct. Id.
The tort of civil conspiracy, in turn, is defined under the law
of Pennsylvania as the combination of two or more persons to do
an unlawful act or to do an otherwise lawful act by unlawful
means. Pierce v. Montgomery County Opportunity Board,
884 F. Supp. 965 (E.D.Pa. 1995). Malice, i.e., an intent to injure,
and lack of justification are essential elements to a civil
conspiracy cause of action. Barmasters Bartending School, Inc.
v. Authentic Bartending School, 931 F. Supp. 377 (E.D.Pa. 1996).
Here, Plaintiff alleges only that John Manfredy and Jeffrey
Brown intended to and did interfere and cause harm to Remick's
contract with Angel Manfredy by "setting [him] up to fail in the
negotiations over the Azumah Nelson fight and by conspiring with
John Manfredy to wrongfully terminate his representation of Angel
Manfredy by, inter alia, publishing false and defamatory
information about Remick's skill and competence." Given that
under Fed.R.Civ.P. 8(a), a complaint must outline all of the
elements of the claim and is subject to dismissal if the pleading
fails to reasonably inform the adverse party of the asserted
cause of action, we find Mr. Remick's complaint to be deficient
by virtue of its failure to advise the defendant of how its
employee allegedly "set up" the plaintiff to fail in fight
negotiations and what false and defamatory information he is
accused of disseminating and to whom. See, Haines v. Kerner,
404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Delgado v.
Federal Bureau of Prisons, 727 F. Supp. 24 (D.D.C. 1989). See
Also: Hides v. CertainTeed Corp., 1995 WL 458786 (E.D.Pa. 1995).
Accordingly, Counts II, III and VI of the complaint shall be
dismissed as against D'Ancona & Pflaum also, albeit with leave
given to plaintiff to re-plead his tortious interference with
contract and civil conspiracy claims.*fn3
An order follows.
AND NOW, this 22nd day of April, 1999, upon consideration of
the Defendants' Motion to Dismiss Plaintiff's Complaint and
Plaintiff's Response thereto, it is hereby ORDERED that the
Motion is GRANTED and the Plaintiff's Complaint is DISMISSED
without prejudice in accordance with and for the reasons set
forth in the preceding Memorandum Opinion.