G. MICHELLE KROLCZYK, Appellant
GODDARD SYSTEMS, INC.; NICOLE WISHARD, T/A THE GODDARD SCHOOL OF HARRISBURG; GODDARD SCHOOL; FLH, INC. LYDIA DICOLA, Appellant
GODDARD SYSTEMS, INC., NICOLE WISHARD, T/A GODDARD SCHOOL OF HARRISBURG, THE GODDARD SCHOOL, A FICTITIOUS NAME, AND FLH, INC.
from the Order Entered March 3, 2016 In the Court of Common
Pleas of Dauphin County Criminal Division at No(s): 2008 CV
11907, 2008 CV 12139-CV
BEFORE: BOWES, OLSON AND STABILE, JJ.
Michelle Krolczyk and Lydia DiCola ("Plaintiffs"),
who instituted these wrongful discharge/defamation lawsuits,
appeal from the March 3, 2016 order entering summary judgment
in favor of Goddard Systems, Inc., Nicole Wishard, t/a the
Goddard School of Harrisburg, the Goddard School, a
fictitious name (collectively "Goddard"), and FLH,
Inc., which is the franchisor of Goddard (collectively
"Defendants"). We reverse the decision dismissing
their wrongful discharge cause of action, but affirm the
grant of summary judgment as to the defamation claim.
Wishard owned and operated Goddard, a private school, and was
the president of FLH, Inc. Ms. Krolczyk is a state certified
pre-school educator through the academic board of private
schools in Pennsylvania. Ms. DiCola is a Florida and Texas
certified early childhood education teacher. We have
consolidated the cases for purposes of appellate review as
they were instituted based upon the same series of events,
which occurred when Plaintiffs were co-instructors in a
classroom at Goddard.
2007 and early 2008, Plaintiffs were working as pre-school
teachers for Goddard co-instructing children aged three and
four in a classroom known as the Junior Genius classroom. Ms.
Wishard dismissed both women on February 14, 2008, and, the
following day, a letter was disseminated to their
students' parents regarding their termination. In their
lawsuits, Plaintiffs alleged that they were wrongfully
discharged after informing Ms. Wishard that they were going
to report, as required by Pennsylvania law, that they
suspected that one of their students, A.G., was being abused
or neglected. They averred that the letter given to the
parents was defamatory. Their cases were dismissed based upon
the grant of summary judgment.
record indicates the following. A.G., a student in the Junior
Genius classroom, was four years old when the pertinent
events transpired. A.G.'s mother was Jennifer G., who was
the Director of Education for Goddard and who supervised
Plaintiffs. A.G. was developmentally delayed and extremely
aggressive. Plaintiffs delineated that, during the waning
months of 2007, A.G. engaged in the following behavior in
their classroom: 1) called the teachers and other students
profane names; 2) repeatedly threatened to shoot and kill or
to stab the teachers and other students; 3) on numerous
occasions, physically assaulted and threw objects at teachers
as well as other students; 4) bit Plaintiffs and their
co-workers with sufficient force to break the skin and leave
welts and bruises; 5) otherwise terrorized students to such
an extent that those students no longer wanted to attend
Goddard; 6) continually defecated on himself and resisted
efforts to clean up the feces; and 7) physically and verbally
prevented the teachers from instructing any of their
students. Based upon A.G.'s conduct, Plaintiffs suspected
that he was being either neglected or abused. Jennifer G.
admitted that her son's chronic bowel incontinence and
hyper-aggression supported Plaintiffs' suspicion that he
was being abused or neglected. Specifically, Jennifer G.
conceded that "late stage potty training and
inappropriate aggression" were "indicators" of
a "possibility of abuse" and that her son A.G. had
both of these "red flags." Deposition of Jennifer
G., 4/13/11, at 78.
to December 2007, Plaintiffs sought help with A.G. from Ms.
Wishard, suggesting that intervention from a state agency
might be appropriate. Ms. Wishard failed to undertake any
affirmative action, and instead, directed Plaintiffs neither
to contact any child welfare agency nor to report that they
suspected that A.G. was being abused or neglected. Since the
above-delineated inappropriate behavior neither abated nor
was addressed, in December 2007, Plaintiffs began to keep a
daily journal to document A.G.'s conduct and their
efforts to redirect his aggressive behavior. The journal
indicated the following. A.G. urinated and/or defecated
himself December 4th, December 5th,
December 14th, December 17th, and,
following the holiday break, on January 7th,
January 9th, January 10th, January
11th, January 14th, January
16th, January 23rd, January
25th, January 29th, January
31st, February 4th, and February
6th, 2008. On many of these occasions, A.G.
defecated in his pants more than once.
December 5th, A.G. threatened violence against
children and adults and was very disruptive. On December
14th, he tormented and physically harassed a
classmate, and on December 17th, he threw wooden
blocks at a sleeping child. On that occasion, A.G. was
restrained in the presence of Jennifer G., who immediately
removed A.G. from the classroom. On January 8th,
A.G. kicked, scratched, and tried to bite Ms. Krolczyk
several times and informed her that he was "going to get
a machine gun and load it with bullets and blow her head
off." Deposition of Jennifer G., 4/13/11 at Exhibit D-12
(the "Journal") at 368. He also threw his shoes at
her and said that he was going to break her nose. The
following day, A.G. again threatened to kill Ms. Krolczyk as
well as another student, and punched and scratched Ms.
Krolczyk on the face. A.G. also pulled Ms. DiCola's hair
and kicked her. He was restrained on this occasion.
January 11th, A.G. struck a child with a toy, and
was again restrained; Ms. Krolczyk told Jennifer G. about
this incident. On January 22nd, A.G. threw his
shoes at Ms. Krolczyk and called her profane names. On
January 23rd, A.G.'s father dragged him from
the classroom as A.G. was crying. On January 25th,
A.G. called Ms. Krolczyk profane names and told Ms. DiCola,
who was pregnant, that he was going to take a knife and
remove her baby and that his father was going to kill her
with his gun. He also informed Ms. Krolczyk that he was going
to kill the police so they could not "get his Mom."
Journal at 384.
January 28th, A.G. broke the toilet seat, threw
water on the bathroom floor, and began to roll around. On
February 4th, A.G. bit Ms. Krolczyk in her
forearm, leaving a mark. On the morning of February
5th, A.G. began to scream and flail his arms, and,
when Ms. Krolczyk carried him from the room, he buried his
teeth in her forearm. He also bit her later that afternoon.
On February 6th, A.G. threatened students and
teachers with physical violence, screamed, and would not
February 7, 2008, was A.G.'s last day under
Plaintiffs' supervision. A.G. began the day by
continually defecating in his pants. Since his hostile
behavior began to escalate, another employee at Goddard, Ms.
Angie, whose last name is not revealed in the record, offered
to help to control him. During naptime, A.G. repeatedly
refused to lie down and be quiet. He was playing with a toy,
and each time A.G. engaged in disruptive behavior, Ms.
Krolczyk told him that she would take it away from him. As
A.G. persisted in his actions, the toy was removed. A.G.
immediately began to act out inappropriately. Ms. Angie held
down his feet, and Ms. Krolczyk restrained him by hugging
him. Journal at 408. Becoming more agitated, A.G. attempted
to bite Ms. Krolczyk, and, when Ms. DiCola intervened, he bit
her forearm and refused to release his teeth from her flesh,
which began to bleed.
journal continued that Ms. DiCola "attempted to activate
the reflex of tilting your head back by gently pressing on
the nerve cluster underneath his nose, against his lip to
force him to release his bite." Journal at 409. A.G. was
not affected by this action, and Ms. Angie and Ms. Krolczyk
"helped break his grip" on Ms. DiCola's arm.
Id. All three women, Ms. Angie, Ms. Krolczyk, and
Ms. DiCola, held A.G. in order to calm him down. The journal
delineated that, during this episode, A.G. was
"completely out of control, " and appeared to be in
a "full-blown, adrenaline-fueled rage" and
"out of his mind and body." Id.
Eventually, the three women quieted A.G. and laid him down on
his mat next to the sleeping children. Five minutes later,
Jennifer G. came into the classroom and was told about the
incident. She listened and nodded and then left with A.G.,
who did not return to school the following day.
Monday, February 11, 2008, Plaintiffs gave Ms. Wishard their
journal. Deposition of Lydia DiCola, 5/8/13, at 63. Since
A.G.'s behavior gave rise to a suspicion by Plaintiffs
that he was being abused or neglected, on February 13, 2008,
Ms. Krolczyk called the hotline of the Pennsylvania
Department of Education and asked how she and Ms. DiCola
should proceed to report their suspicion of abuse or neglect.
Plaintiffs were instructed to meet with Ms. Wishard and
inform her about their shared suspicion of abuse or neglect.
They were also told that they should report their suspicion
of abuse or neglect by filing a formal report of suspected
child abuse with the local department of the Pennsylvania
Department of Public Welfare.
February 14, 2008, Plaintiffs met with Ms. Wishard and
informed her that A.G.'s behavior was indicative that he
was being abused or neglected at home. They also notified Ms.
Wishard that they had contacted the Department of Education,
and they conveyed to Ms. Wishard that they intended to
formally report to the Department of Public Welfare that they
suspected there was abuse or neglect in A.G.'s home.
Plaintiffs were mandated reporters of suspected abuse under
hours of the February 14, 2008 meeting, Ms. Wishard called
Plaintiffs at home and said that they were fired. Ms.
Krolczyk testified that Ms. Wishard informed her that she was
being discharged, "Based on the conversation we had this
afternoon and your decision [i.e., to report
suspected abuse or neglect of A.G.], that your services are
just no longer needed here, we'll call today your last
day and go our separate ways." Deposition of G. Michelle
Krolczyk, 5/8/13, at 150. Ms. Wishard thereafter sent a
letter to the parents delineating that Plaintiffs were
terminated "for various reasons" but Ms. Wishard
assured them "that protecting both the children's
interest as well as the parents' interest as well as the
good of this school are the deciding factors for my
decision." Deposition of Jennifer G., 4/13/11, at
her deposition, Ms. Wishard claimed that Plaintiffs were
dismissed for having "inappropriate contact with a
student" by restraining A.G. Deposition of Nicole
Wishard, 6/2/10, at 40, 51. She relied specifically on the
February 7, 2008 incident, as described in the journal, when
A.G. was hugged by Ms. Krolczyk, Ms. DiCola had applied
pressure to A.G.'s upper lip, Ms. Krolczyk and Ms. Angie
had removed his teeth from Ms. DiCola's bleeding arm, and
all three women held him in order to calm him down.
Wishard admitted that the journal indicated that Plaintiffs
restrained A.G. "in order to prevent him from hurting
himself, a teacher, or another child" and that there was
no indication that Plaintiffs physically abused A.G. in any
manner by hitting, beating, or kicking him. Id. Ms.
Wishard also acknowledged that the journal indicated that Ms.
Angie was involved in restraining A.G., but that she was not
discharged, ostensibly because Ms. Wishard interviewed Ms.
Angie and Ms. Angie denied restraining A.G. While Ms. Wishard
asserted that she would fire any teacher who restrained a
student, cross-examination indicated that there were other
instances of restraint where teachers were not fired. When
deposed, Jennifer G. acknowledged that another teacher, J.S.,
had not been terminated even though she pinched a child's
forearm. Deposition of Jennifer G., 4/13/11, at 23-24.
Indeed, Jennifer G. herself restrained a child and was not
dismissed. Id. at 52.
discovery was conducted, Defendants filed a motion for
summary judgment. They asserted that Plaintiffs' wrongful
discharge claims were not viable because Plaintiffs were
fired for a valid, legitimate, and non-prohibited reason, as
outlined in Ms. Wishard's deposition, i.e., they
restrained A.G. in violation of school policy. Defendants
also averred that the letter was not defamatory. The trial
court granted summary judgment on the wrongful discharge
claims by finding that, in accordance with the testimonial
deposition of Ms. Wishard, Defendants had offered a
"separate, plausible and legitimate reason" for the
terminations. Trial Court Opinion, 3/3/16, at (unnumbered
page) 5. It rejected the position that the reason was
pre-textual. In concluding that Defendants
"proffered a legitimate nondiscriminatory reason for
terminating Plaintiff[s'] employment, the court ruled
that Plaintiffs were dismissed solely because they "had
been physically restraining a four-year-old boy for several
months[.]" Id. at (unnumbered page) 6. In
dismissing the defamation count, the trial court noted that
Plaintiffs had not incurred special harm and apparently
decided that the letter sent to parents was not defamatory
per se. Id. at (unnumbered page) 9 ("A
fair reading of this letter shows that it is not fairly
calculated to harass Plaintiff[s'] reputation.").
appeal from the grant of summary judgment, Plaintiffs raise
A. Did the lower court err in dismissing Appellant[s']
claim[s] for wrongful termination when there were material
issues of fact vital to the adjudication of said claims,
including, but not limited to, a temporal proximity between
the protected activity (i.e., reporting suspected abuse) and
the adverse job action (i.e., termination) which could be
measured in minutes and/or hours, as well as material issues
of fact which could establish that the asserted
"legitimate" basis for termination was, in fact, a
B. Did the lower court err, as a matter of law, when it
violated the Nanty-Glo rule in entering judgment against
Appellant[s] on the basis of the Appellee[s'] own
deposition testimony concerning the facts and circumstances
giving rise to Appellee[s'] decision to terminate
C. Did the lower court erred [sic] in entering judgment
against Appellant[s'] "defamation" claim[s]
when the facts of the case establish that Appellees published
a false and misleading letter which adversely affected