Loading...
HomeMy WebLinkAbout97-6119 CivilFRANCINE E. WEIMER,: EXECUTRIX OF THE : ESTATE OF DAVID WEIMER, Plaintiff FORD MOTOR CREDIT COMPANY and GEORGE: HARTMAN, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-6119 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., May 9, 2001. This civil action was commenced by Plaintiff's decedent, David Weimer, following his termination as an at-will employee of one of the Defendants, Ford Motor Credit Company, where he was under the supervision of a second Defendant, George Hartman. Mr. Weimer died during the course of the litigation. The amended complaint in the action contained five counts. These were for libel, tortious interference with contractual relations, prima facie tort, breach of a covenant of good faith and fair dealing, and wrongful discharge. However, preliminary objections in the form of demurrers were sustained with respect to the counts for prima facie tort, breach of a covenant of good faith and fair dealing and wrongful discharge. Two other defendants were removed from the case by means of a settlement, which also effectively withdrew from the case the claim for tortious interference with contractual relations. At the conclusion of a jury trial, bifurcated as to liability and damages,~ verdicts in favor of Defendants Ford Motor Credit Company and George Hartman on the remaining defamation claim were returned as to liability. No motion for post-trial relief was filed. Neither side filed a praecipe to enter judgment on the verdicts. The bifurcation was pursuant to an agreement of counsel. See Trial N.T. 6-7 (hereinafter N.T. __). On February 28, 2001, Plaintiff filed an appeal to the Pennsylvania Superior Court from the jury's verdicts2 and from the pretrial order sustaining p~eliminary objections to the counts for prima facie tort, breach of a covenant of good faith and fair dealing, and wrongful discharge. Plaintiff's statement of matters complained of on appeal recites the following grounds: 1. Plaintiff submits that the Trial Court erred by failing to instruct the jury that the act of terminating Plaintiff's decedent, David Weimer, alone could be construed as a defamatory "publication," despite: a. Plaintiff's request to that effect, in the second paragraph of Section A of Plaintiff's Proposed Jury Instructions; b. Plaintiff's averment, in Paragraph 16 of Plaintiff's Second Amended Complaint, that the act of terminating Plaintiff's decedent was a defamatory publication; c. Defendants' waiver of any objection to the requested instruction by entering Plaintiff's Second Amended Complaint into evidence as a Defense Exhibit; and d. Plaintiff again requesting that such instruction be given, during jury deliberations, following a question from the jury, to the Trial Court, regarding the issue. 2. Plaintiff submits that the Lower Court erred in dismissing most of the claims set forth in Plaintiff's original complaint, following Preliminary Objections thereto, from the Defendants, by its Order and Decision dated September 15, 1998. Specifically, the Lower Court erred in granting the demurrer of Defendants George Hartman and Ford Motor Credit Company, to the following causes of action pleaded in Plaintiff's original Complaint: a. Count III - "Prima Facie Tort;" 2 Although the notice of appeal states that it is from "the Judgments entered in this matter on 2nd day of February, 2001," an examination of the docket entries indicates that the reference is to the verdicts rendered by the jury on February 2, 2001. 2 b. Count IV - "Breach of Covenant of Good Faith and Fair Dealing;" and c. Count V - "Wrongful Discharge." The reasons for the court's pretrial dismissal of the claims for prima facie tort, breach of a covenant of good faith and fair dealing, and wrongful discharge were expressed in an opinion which accompanied the order of dismissal, and will not be here repeated.3 The present opinion, written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), will address the merits of the court's refusal to instruct the jury that Defendant's termination per se could be considered a defamatory publication; in addition, the opinion will address certain issues of waiver, timeliness and appealability. STATEMENT OF FACTS The defamation trial in this case was held from January 29 through February 2, 2001. The pertinent evidence at trial may be summarized as follows. On August 22, 1997, Plaintiff's decedent was terminated from his position as a dealer/account manager with Defendant Ford Motor Credit Company, after 25 years of employment with the company.4 The termination resulted from an investigation conducted by his supervisor, Defendant George Hartman, which led Mr. Hartman to conclude that Plaintiff's decedent had participated in a fraud against the company.5 The alleged fraud involved a scheme by a debtor of the company in the form of an automobile dealership to convey a false impression that vehicles serving as security for the debt had not been sold by the dealership.6 The alleged participation in the scheme by Plaintiff's decedent involved his alerting the dealership to impending on-site audits by the company, so that the dealership See Opinion of Court, September 15, 1998. Trial N.T. 36, 86, 638. N.T. 86-88. N.T. 86-89, 96-97. 3 could temporarily position cars that had been sold back on the dealer's premises, thereby creating the illusion that these vehicles had not been sold and remained in tile dealership's name.? When it was discovered that the dealership had succeeded in selling vehicles "out of trust," notwithstanding the audit procedure,8 an internal investigation was conducted by the supervisor of Plaintiff's decedent, Defendant George Hartman.° Defendant Hartman procured affidavits from two employees of the dealership, indicating that Plaintiff's decedent had alerted the dealership to impending audits.l° Defendant Hartman's testimony at trial was to the effect that he did not believe a fraud of this type and magnitude~ could have been perpetrated without advance notice to the dealership of the impending audits.~2 His investigation, according to his testimony, convinced him that Plaintiff's decedent had been the source of such advance notice,~3 and resulted in his recommendation that Plaintiff's decedent be dismissed. 14 Plaintiff's decedent apparently informed others of the reason for his termination.~5 However, the evidence indicated that Defendants were careful not to disclose the reason for the termination to others, including co-workers.~6 7 N.T. 86-89, 96-97. 8N.T. 619-21. 0 N.T. 620. l0 N.T. 72, 560-62. ~ The amount of losses suffered by Defendant Ford Motor Credit Company xvere said to have exceeded $1,000,000.00. N.T. 59, 647. ~2 N.T. 621-23,647. ~3 N.T. 621-23,642-43. 14 N.T. 616-18. ~5 N.T. 69, 107. ~6 See N.T. 108. Brenda Westcoat, an employee of Ford Credit at the tim~ of David Weimer's termination, testified that George Hartman informed the branch employees of David Weimer's 4 At the conclusion of the trial, the court instructed the jury on the tort of defamation, including its elements (such as publication), absolute and conditional privileges, abuse of privilege, the doctrine of respondeat superior, and burden of proof, inter alia.~7 On the subject of publication, the court included these words in its charge: A communication is any act by which a person brings an idea to another's attention. A communication may be made by speaking or by writing words or by any other act or combination of acts that result in bringing an idea to another's attention. ~ s Prior to the jury's commencement of deliberations, Plaintiff's counsel indicated his satisfaction with the charge as given.~9 During the course of its deliberations, the jury requested reiteration or clarification of the law as to defamation on a number of occasions,2° with particular emphasis on privileges and abuse of privilege.2~ On one such occasion, the court gave examples of possible instances of publication of defamatory information about Plaintiff's decedent, including any communication by Defendants of the contents of the notice of his termination to others.22 Plaintiff's counsel requested that the court further particularize instruction on publication by adding the proposition that a termination employment can itself constitute a defamatory publication? its of Defendants' counsel termination and told them that if any dealers called to say that Mr. Weimer was no longer with the company and to refer additional questions to management. ~7 N.T. 738-52, 756-57. ~8 N.T. 740. 19 N.T. 753-54, 757. 20 N.T. 762, 774, 779, 785. 2~ N.T. 775, 779-82, 785. 22 N.T. 766-73,776-77, 779-82. 23 N.T. 783-84. The transcript incorrectly attributes a portion of this request to Defendants' counsel. See N.T. 784, lines 7-12. opposed further elaboration upon the instruction, and the court declined the request.24 Ultimately, the jury returned verdicts in favor of Defendants on the issue of liability for defamation.25 No post-trial motions were filed, and the verdicts have not been reduced to judgment. DISCUSSION General--appeal from interlocutory order. Although not within the substantive scope of this opinion, it may be noted briefly that as a general rule a jury's verdict is not considered a final, appealable order. See Rellick v. Redevelopment Authority, 127 Pa. Commw. 264,561 A.2d 382 (1989). Pretrial dismissal of claims for prima facie tort, breach of covenant of good faith and fair dealing, and wrongful discharge. As previously mentioned, the merits of the court's pretrial dismissal of claims for prima facie tort, breach of a covenant of good faith and fair dealing, and wrongful discharge were the subject of an opinion of the court, dated September 15, 1998, which accompanied the dismissal. The reasons for the pretrial order will not be restated here. Although not within the substantive scope of this opinion, two additional impediments, of a procedural nature, to Plaintiff's pursuit of these issues may also be briefly noted. First, the absence of a final judgment in the case has been referred to above. Second, to the extent that the dismissed claims are deemed to have been separate and distinct causes of action from the defamation claim the ruling was appealable at the time of its occurrence. Britt v. Chestnut Hill College, 429 Pa. Super. 263, 266, 632 A.2d 557, 559 (1993); Ella v. Erie Insurance Exchange, 398 Pa. Super. 433,436-37, 581 A.2d 209, 211 (1990).26 24 N.T. 784. 25 N.T. 787. 26 As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Ganassi v. Buchanan Ingersoll, P.C., 373 Pa. Super. 9, 540 A.2d 272 (1988). 6 The courts in this area of the law focus upon the distinct kind of harm for which recovery is sought, regardless of whether similar factual allegations give ri~e to the separate counts. Zikria v. Association of Thoracic & Cardiovascular Surgeons, P.C., 432 Pa. Super. 248, 637 A.2d 1367 (1994). In this context, there is authority in Pennsylvania for the proposition that claims for breach of contract, interference with prospective business or contractual relations, intentional infliction of emotional distress, and wrongful suspension are separate and distinct causes of action from a claim for defamation. See Ganassi v. Buchanan Ingersoll, P.C., 373 Pa. Super. 9, 540 A.2d 272 (1988); Daywalt v. Montgomery Hospital, 393 Pa. Super. 118, 573 A.2d 1116 (1990). An appeal must be filed at the earliest possible opportunity.27 Thus, where a pretrial dismissal of a count was appealable under the rule discussed above at the time of dismissal, a deferral of the appeal to the conclusion of the case will result in a quashal of the appeal on the ground of untimeliness. Daywalt v. Montgomery Hospital, 393 Pa. Super. 118, 573 A.2d 1116 (1990). Refusal of court to charge that dismissal of employee per se couM constitute defamatory publication. With respect to Plaintiff's contention that the court committed reversible error in failing to categorize the termination of employment per se as a potential defamatory publication, the Plaintiff's position on the merits did not seem to the court to be compelling. In this regard, while it is true that some types of conduct can be so suggestive of impropriety on the part of another as to be the functional equivalent of a declaration for purposes of defamation,28 the dismissal of an at-will employee does not, per se, constitute a defamatory publication. Holewinski v. Children's Hospital of Pittsburgh, 437 Pa. Super. 174, 180, 649 A.2d 712, 716 (1994), appeal 27 Daywalt v. Montgomery Hospital, 393 Pa. Super. 118, 573 A.2d 1116 (1994). 28 See Berg v. Consolidated Freightways, Inc., 280 Pa. Super. 495, 500, 421 A.2d 831, 833 (1980), citing Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959) (search of patron's pockets and purse by store manager in public). 7 denied, 540 Pa. 641, 659 A.2d 560 (1995). This is true even though the employee's co-workers may have inferred from the termination that he or she must have been an untrustworthy or otherwise bad employee. Marley v. Board of Pensions of the Presbyterian Church, 33 Phila. 340, 356 (1997). In the present case, the evidence indicated that Defendants, upon the dismissal of Plaintifffs decedent, had been careful not to disclose the reason for his termination to third persons, including, co-workers. The termination, in itself, did not, in the court's view, constitute a defamatory publication, and an instruction to the jury suggesting otherwise would have diverted its attention from the legitimate issues of publication which Plaintiff had presented. Although not within the substantive scope of this opinion, two other impediments to Plaintiff's pursuit of this issue may be noted briefly. First, the absence of a final judgment in the case has been referred to above. Second, an objection to an instruction is generally not cognizable on appeal where it was not made the subject of a motion for post-trial relief in the trial court. Brown v. Philadelphia Tribune Co., 447 Pa. Super. 52, 57-58, 668 A.2d 159, 162 (1995), appeal denied, 544 Pa. 621, 675 A.2d 1241 (1996), cert. denied, 519 U.S. 864, 1175 S. Ct. 173, 136 L. Ed. 2d 114 (1996). Keith E. Kendall, Esq. 4409 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff BY THE COURT, ' y Ol~.iJ. · 8 David E. Stem, Esq. Kevin Bugraks, Esq. 1650 Arch Street 22nd Floor Philadelphia, PA 19103-2097 Attorneys for Defendant 9