United States District Court, W.D. Pennsylvania
DAVID STEWART CERCONE, District Judge.
Plaintiff, James Bentlejewski ("Plaintiff" or "Bentlejewski'), filed a three (3) count Complaint alleging (1) Intentional Interference with Existing Contractual Relationship; (2) Trade Libel; and (3) Defamation Per Se, against Defendants, Werner Enterprises, Inc. ("Werner") and Drivers Management, LLC ("DM") (collectively "Defendants" or "Werner"). Werner has filed a motion for summary judgment, Bentlejewski has responded and the matter is now before the Court.
II. STATEMENT OF THE CASE
Bentlejewski was employed as truck driver by Werner from May 9, 2011, until he voluntarily left his employment on May 14, 2012. Defendants' Concise Statement of Material Facts ("Def. CSMF") ¶ 1. On May 16, 2012, Schneider National, Inc. ("Schneider") extended Bentlejewski a conditional offer of employment as a driver associate. Plaintiff's Response to Concise Statement of Material Facts ("Pl. RCSMF") ¶ 9, Ex. I. On May 20, 2012, Bentlejewski began training for his position at Schneider. Def. CSMF ¶ 3. On or about May 22, 2012, at Schneider's request, Werner provided an Employment Verification which identified four (4) minor accidents involving Bentlejewski which occurred during his employment with Werner. Def. CSMF ¶ 5. By email dated May 25, 2012, Schneider informed Bentlejewski that he would not be considered for a driving position "based in whole or in part on information contained in a consumer report furnished by HireRight." Def. CSMF ¶ 7.
On or about March 11, 2013, Bentlejewski began probationary employment with Vitran Express, Inc. ("Vitran"). Def. CSMF ¶ 13. Pursuant to Federal Motor Carrier Safety Administration ("FMCSA") regulations, Vitran requested Bentlejewski's accident and driving history report for the previous three (3) years from his former employers. Def. CSMF ¶ 14. On June 10, 2013, Werner provided an Employment Verification which identified four (4) minor accidents involving Bentlejewski which occurred during his employment. Def. CSMF ¶ 15. On June 12, 2013, Vitran sent Bentlejewski a notice of probationary employment separation indicating that his employment would not be continued. Def. CSMF ¶ 17.
Bentlejewski then filed this lawsuit in September 2013, alleging that the Employment Verifications sent to Schneider and Vitran contained false and misleading information. Def. CSMF ¶ 19.
III. LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id . The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994)).
"Defamation, of which libel, slander, and invasion of privacy are methods, is the tort of detracting from a person's reputation, or injuring a person's character, fame, or reputation, by false and malicious statements." Mzamane v. Winfrey, 693 F.Supp.2d 442, 476 (E.D. Pa. 2010) (quoting Joseph v. Scranton Times L.P., 959 A.2d 322, 334 (Pa. Super. 2008)). A plaintiff invoking Pennsylvania law in an action for defamation 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 plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. See 42 PA. CON. STAT. ANN. § 8343(a); see also Mzamane v. Winfrey, 693 F.Supp.2d at 476-477.
A statement is considered libel or defamation per se when the "speaker imputes to another conduct, characteristics, or a condition that would adversely affect[him in his] lawful business or trade...." Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 237, 241 (Pa. Super. 1993). A statement is defamation per se as an accusation of business misconduct if it "ascribes to another conduct, characteristics or a condition that would adversely affect his fitness for the proper conduct of lawful business." Smith v. IMG Worldwide, Inc., 437 F.Supp.2d 297, 308 (E.D. Pa. 2006) (quoting Clemente v. Espinosa, 749 F.Supp. 672, 677-678 (E.D. Pa. 1990)). The statement must be "peculiarly harmful to one engaged in [that] business or profession. Disparagement of a general character, equally discreditable to all persons, is not enough...." Clemente v. Espinosa, 749 F.Supp. at 678. The statements that Bentlejewski alleges constitute defamation fall into this category.
Even if a plaintiff could establish the elements of defamation, Pennsylvania law shields the publisher of defamatory statements from liability if the statement "was made subject to a privilege, and the privilege was not abused." Moore v. Cobb-Nettleton, 889 A.2d 1262, 1268 (Pa. Super. 2005). A conditional privilege applies "if the publisher reasonably believes that the recipient shares a common interest in the subject matter and is entitled to know the information conveyed." Am. Future Sys., Inc. v. Better Bus. Bureau, 923 A.2d 389, 393 ...