The opinion of the court was delivered by: Stengel, J.
The defendant seeks a modification to the Memorandum dated October 25, 2010 which dismissed the plaintiffs' amended complaint in its entirety. See Document #20. Specifically, because it waived its statute of limitations defense by stipulation in December 2009, the defendant asks for the plaintiffs' defamation and invasion of privacy claims to be decided on the merits, rather than being dismissed as untimely. The plaintiffs had timely brought those claims in a parallel action in the Court of Common Pleas of Lancaster County. The defendant waived its defense in exchange for the plaintiffs' withdrawal of their state court action. Accordingly, I will re-visit those claims and addressthem on their merits.*fn1
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which she bases her claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).
A. Defamation -- Count VI
The amended complaint alleges that the defendant "published" false and damaging statements about the plaintiffs on February 18, 2008. For example, in the employee warning notices issued to the plaintiffs, the defendant wrote that the plaintiffs had "falsi[fied] records with the intent to deceive the company." See Am. Compl. ¶ 70. Also, the defendant allegedly indicated to the company's Worknet physician that Miss Truong had "reported the work injury 'because she was denied a dayshift position.'" Id. ¶ 72. The physician allegedly relied upon that statement to deny Miss Truong an objective medical examination. Id.
Defamation is a communication which tends to harm an individual's reputation so as to lower him or her in the estimation of the community or deter third persons from associating or dealing with him or her. Elia v. Erie Ins. Exch., 634 A.2d 657, 660 (Pa. Super. 1993) (citing Zartman v. Lehigh County Humane Soc., 482 A.2d 266 (Pa. Super. 1984)). In an action for defamation in Pennsylvania, a plaintiff has the burden of proving: (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 defamatory meaning; (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 publication; and (7) abuse of a conditionally privileged occasion. See 42 Pa.C.S. § 8343(a). To prevail, the defendant in such an action must prove: (1) the truth of the defamatory communication; (2) the privileged character of the occasion on which it was published; and (3) the character of the subject matter of defamatory comment as of public concern. See 42 Pa.C.S. § 8343(b).
1. Statements Found in the Employee Warning Notices
Privilege is a defense to a claim of defamation. The contents of an employee's personnel file are entitled to an absolute privilege. Agriss v. Roadway Express, Inc., 483 A.2d 456, 463 (Pa. Super. 1984) (noting that one who publishes defamatory matter within the scope of an absolute privilege is immune from liability regardless of occasion or motive). In Agriss, the court held that the absolute privilege pertains to warning letters and notices of dismissal. Id. at 464. Furthermore, a copy of any warning letters sent to an employee's personnel file is also covered by the privilege. Id.
Here, the plaintiffs' employee warning notices are subject to an absolute privilege. As such, the plaintiffs cannot maintain a defamation cause of action based on the challenged statement found in such a communication.
2. Statement by the Defendant to the Worknet Physician
Unlike the first challenged statement, the statement that Miss Truong "reported a false work injury because she was denied first shift" is not subject to an absolute privilege. The statement is, however, conditionally privileged. A conditional privilege attaches to defamatory communications "made on a proper occasion, from a proper motive, and in a proper manner," whenever "circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know." Maier v. Maretti, 671 A.2d 701, 706 (Pa. Super. 1995). Examples of occasions giving rise to a conditional privilege are: (1) when some interest of the publisher of the defamatory matter is involved; (2) when some interest of the recipient of the matter or a third party is involved; or (3) when a recognized interest of the public is involved." Elia, 634 A.2d at 660. The qualified privilege also applies to communications between an employer and physicians with whom it contracts to examine employees who sustain on-the-job injuries. See Rigaud v. Garofalo, 2005 U.S. Dist. LEXIS 7791, *11-12 ...