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HomeMy WebLinkAbout97-5332 civilFUGLEE, INC. PLAINTIFF ANN NISSAN and BARBARA STODDART-MORGAN, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-5332 CIVIL TERM IN RE: MOTIONS OF DEFENDANTS FOR SUMMARY JUDGMENT OPINION AND ORDER OF COURT BAYLEY, J., May 18, 1999:-- Plaintiff, Fuglee, Inc., is a corporation that performs lawn maintenance services and painting. Defendants, Ann Nissan and Barbara Stoddart-Morgan, are condominium owners in the Westwood Village Condominium community. Plaintiff provides lawn care and related services and painting under contract to Westwood Village. Plaintiff filed a second amended complaint against defendants alleging defamation and the intentional interference with its contractual relations. The parties took the deposition of William Hicks, the president of Fuglee, Inc. The record is closed and both defendants have filed a motion for summary judgmi~nt. The issues were briefed and argued and are ready for decision. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment: [w]e must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non-moving party 'must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce 97-5332 CIVIL TERM this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.' Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Finally, we must stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). (Emphasis added.) COUNT I DEFAMATION In defamation a plaintiff has the burden of proving (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to 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 any conditional privilege. 42 Pa.C.S. § 8343(a); Kryeski v. Schott Glass Technologies, Inc., 426 Pa. Super. 105 (1993). Communications are defamatory if they would harm reputation so as to lower plaintiff in the estimation of the community or deter third persons from associating or dealing with plaintiff. Zartman v. Lehigh County Humane Soc., 333 Pa. Super. 245 (1984). This centers on the effect the communications would be fairly calculated to produce and the impression they would engender in the minds of those among whom they were intended to circulate. Petula v. Mellody, 138 Pa. Commw. 411 (1991). Whether communications are capable of having a defamatory meaning is a question of law for the court. If we find that communications by any defendant are capable of a defamatory meaning, it is the jury's function to determine whether they were so understood by the recipients. If we determine that any such communications are not capable of a defamatory meaning -2- they are subject to summary judgment. Livingston v. Murray, 417 Pa. Super. 202 (1992). Each of plaintiff's claims of defamation will be evaluated in accordance with these principles. A. Statements Pertaining to Conflict of Interest Plaintiff alleges that defendants made and published false accusations that William Hicks as president of Fuglee, Inc., performed work for Westwood Village with a conflict of interest, and that defendants made statements that Fuglee, Inc., charged inflated and unreasonable prices.1 Westwood Village has a council of five persons who are elected by the Westwood Village condominium owners. The Council is responsible for the preservation of the equity of the unit owners of Westwood Village which includes all exterior maintenance of the buildings, maintenance of the grounds and capital improvements. William Hicks first became involved as a member of the Westwood Village Community Council in 1994 as a member at large. In 1995, he became president through 1996. In 1997, he reverted to vice president. In 1998, he again became president. Property Management, Inc. is a property manager for Westw(J~)d Village. PMI solicits bids for work needed to be done in Westwood Village. PMI presents the bids it receives with its recommendations to the Council. Hicks, as council president, communicated regularly with Sue Brightbill, a PMI representative who is in charge of obtaining the bids. In 1995, PMI sent approximately ten invitations for bids for 1. Interestingly for a defamation case, Fuglee's president, William Hicks, testified in a deposition that he took the name "Fuglee" for his corporation knowing that the term was generally understood to mean "fucking ugly." -3- 97-5332 CIVIL TERM landscaping, lawn care, and exterior painting. One of these invitations was sent to plaintiff Fuglee, Inc., that was not yet incorporated at that time. Hicks incorporated Fuglee, Inc., in January, 1996, after retiring from the Commonwealth of Pennsylvania where he was employed for 32 years. He had no training or experience in the field of lawn care and painting other than he mowed lawns for neighbors when he was a teenager. When Hicks became the president of the Westwood Village Council in 1995, the Council was experiencing problems with its landscaping and painting contractors. The work of the previous contractors influenced Hicks in his decision to start a company to do landscaping, lawn care, and painting work. PMI received only two bids for the landscaping work at Westwood Village, and only Fuglee's bid for the painting. When PMI presented the bids to Council, Hicks recused himself from the Council's discussions and the vote on awarding contracts. When the contracts for lawn care and painting were awarded to Fuglee, Inc., there were four other council members. Two were Hicks' personal friends'~vho did not recuse themselves from voting. All previous contractors that had done landscaping for Westwood Village had been working on one year contracts. Commercial Lawn Care, the other bidder for the lawn care, made a bid for one year. Plaintiff's bid was for five years although the bid invitation did not seek a five year bid. The Council asked Fuglee, Inc., if it would agree to a one year contract. Plaintiff refused. Notwithstanding, the Council -4- accepted the bids for five years for the landscaping and painting and plaintiff's attorney wrote contracts in excess of $250,000 which Council signed. The alleged defamatory comments of defendants that Fuglee, Inc., obtained its five year contracts at inflated and unreasonable prices through a conflict of interest In Kryeski v. Schott Glass Technologies, supra, the court constitutes opinion. stated: [E]xpressions of opinion are not actionable. Baker v. Lafayette College, 350 Pa. Super. 68, 78, 504 A.2d 247, 252 (1986), afl'd, 516 Pa. 291,532 A.2d 399 (1987). Likewise, statements which are merely annoying or embarrassing or "no more than rhetorical hyperbole" or "a vigorous epithet" are not defamatory. Redding v. Carlton, 223 Pa. Super. 136, 139, 296 A.2d 880, 881 (1972). Defendants' statements constitute elements of both truth and "vigorous epithet." When the Council was deciding to award contracts, two of plaintiff's close personal friends participated in the vote. Plaintiff himself was the president of Council. The statements of defendants are opinions relating to the hiring of plaintiff for what was an unusually long period at what defendants opined were inflated and unreasonable prices. B. Statements Pertaining to the Quality of Fuglee, Inc.'s Labor Force Plaintiff alleges that defendants made false accusations that plaintiff hired and utilized untrained, substandard labor. Hicks testified in his deposition that both defendants on separate occasions complained to him about the performance of Fuglee, Inc. Before April, 1996, Hicks had never done any professional painting or lawn care work. Hicks acknowledged that in April, 1996, he and some persons in his -5- 97-5332 CIVIL TERM employ did not have knowledge relevant to the right time of year to trim shrubs so as not to damage them. Plaintiff has had approximately 15 to 20 employees since its formation. Hicks testified that when hiring he would interview the persons and find out their salary requirements. He testified that if a person seemed to be someone that he would be able to work with and was interested in the type of work available, he would employ them. Hicks testified that most of his employees were inexperienced in painting and lawn care work when hired. Their inexperience resulted in some mistakes and damage to Westwood Village property. As an example one employee pulled chrysanthemums out of a flower bed when weeding because he thought they were grass. Another employee ran one of the lawn mowers over a decorative shrub. Truth is an absolute defense to a civil action for defamation. Badami v. Dirnson, 226 Pa. Super. 75 (1973). In Badami, the alleged defamation resulted in part from an article in a local newspaper which stated that a Lower Merion constable disappeared subsequent to collecting rent money and was purportedly in New Jersey. The Superior Court of Pennsylvania stated: Regarding the portion of the newspaper articles on the fact that appellant collected certain rent monies and then went to New Jersey there is clearly no issue of fact. Appellant admitted in his depositions that he collected the rent monies, went to New Jersey, returned and gave himself up when he learned that a warrant had been issued for his arrest, and that he was charged with a criminal offense. Truth is an absolute defense to a civil action for libel. (citations omitted). -6- Hicks has admitted in his deposition that the statements pertaining to the quality of Fuglee, Inc.'s labor force are true because, in fact, Fuglee, Inc., hired and utilized some untrained labor. Defendants' statements concerning the quality of plaintiff's labor force constitute an expression of opinion. Statements of opinion not founded on defamatory facts are not actionable. Baker v. Lafayette College, 350 Pa. Super. 68 (1986). Based upon their experience with plaintiff's labor force, defendants opined that it provided substandard services as a result of their lack of experience and training. C. Statements Pertaining to the Contracts Being Awarded on a Noncompetitive Basis Plaintiff alleges that defendants made false accusations that contracts between Westwood Village and plaintiff were awarded on a noncompetitive basis. Those statements pertain to the action of the Westwood Village Council. In order to properly state a cause of action for defamation, a plaintiff has the burden of proving that the statement applies to the plaintiff. 42 Pa.C.S. § 8343(a). D. Statements Pertaining to the Use of Watered-Down Paint ~, Plaintiff alleges that defendants falsely accused it of using watered-down paint. Hicks testified in his deposition that he believed that Ann Nissan may have made statements about plaintiff using watered-down paint but had no proof that she did. Plaintiff has the burden of proving specific defamatory communications by a defendant. See 42 Pa.C.S. § 8343(a). Hicks testified that Barbara Stoddart-Morgan falsely accused him of using watered-down paint by writing a document stating: -7- 97-5332 CIVIL TERM FOOD FOR THOUGHT: When I called Mr. Maxwell at PMI, he told me that my wood would be replaced next year since it wasn't deemed critical to be done this year (plus they ran out of $$$). I suggested to him that we could save $$ on paint by not wasting paint on rotten wood. Think about this for a minute. Fuglee (Bill Hicks) gets paid for painting over rotten wood this year. Next year, after the wood is replaced, he gets paid AGAIN, for painting it again. That's almost as bad as "watering down" the paint. What a waste and squandering of our money!I!!!! (Emphasis added.) The document does not accuse plaintiff of watering down paint. Statements Pertaining to Fuglee, Inc.'s Intentionally Painting Over Rotten Wood Plaintiff alleges that defendants falsely accused it of deliberately and intentionally painting over rotten wood so as to create additional work. This allegation arose as a result of a picture with accompanying text that was posted on the Westwood Village bulletin board. The text stated: THIS IS WHAT FUGLEE, INC. WAS GOING TO PAINT!I! (Bill Hicks told me, 'he'll paint anything that's there') UNTIL I NOTIFIED SHERRI AKENS WHO HALTED THE PAINTING UNTIL THE RO'FFED WOOD WAS REPLACED ON THE SHED AND ON 2 SIDES OF MY FENCE, BUT THE SAME WARPED GATE WAS REINSTALLED. LOOKS MUCH BETTER NOW SINCE PAINTED - BUT THE WARPED GATE CAN'T BE CLOSED? 234 BRIAN DRIVE Hicks testified in his deposition that it is his policy to paint what is there -8- regardless of its condition. He testified that Fuglee, Inc., has painted over rotten wood and that it would paint over such wood before it was replaced. He stated that he was going to repaint the wood in Barbara Stoddart-Morgan's area of Westwood Village regardless of when the wood was to be replaced because he was not responsible for replacing the wood or determining when it should be replaced. Truth is an absolute defense. F. Statements Pertaining to Grass Clippings on the Sidewalk Plaintiff maintains that defendants committed defamation by posting a photograph depicting grass clippings on a sidewalk. The photograph shows a significant amount of grass clippings on a sidewalk of Westwood Village with a writing accompanying it that states: "THE WESTWOOD VILLAGE 'SIDEWALK TREATMENT' NO SWEEPING, NO CLEANING, NO BLOWING: AS PER CONTRACT!!" In his deposition, Hicks opined that the photograph was taken during the day while work was in progress in either the late morning or early afternoon. He based that opinion on the appearance of shadows in the pictures. When asked whether the photograph could have been taken the day after the area depicted was mowed, Hicks responded, "Possibly." Hicks could not be certain that his crew left the site without blowing the sidewalk clear on the day before the photograph was taken. The actions of defendant constitute both the truth and vigorous epitaph. Statements Pertaining to Unprofessional Techniques Employed by Fuglee, Inc. Plaintiff alleges that defendants made statements to other residents of the -9- 97-5332 CIVIL TERM Westwood Village community to the effect that the work of plaintiff was faulty, unsatisfactory and unprofessional. These statements included criticism of painting over rotten wood, unprofessional techniques used in applying the paint, inappropriate painting techniques, bushes being trimmed at the wrong time of the year, damage caused to vegetation and shrubs, insecticides and fertilizers applied at inappropriate times, maintenance and tan barking of beds in an unprofessional and unsatisfactory manner, and that plaintiff was inappropriately insured. Such statements represent defendants' opinions as to the quality of plaintiff's work. For the foregoing reasons, summary judgment must be entered as to all of the allegations in plaintiff's counts alleging defamation. COUNT II -- INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS In Triffin v. Janssen, 426 Pa. Super. 57 (1993), the Superior Court of Pennsylvania set forth the elements of the tort of intentional interference with contractual relations: (1) the existence of a contractual relationship, (2) an intent on the part of defendant to harm the plaintiff by interfering with that contractual relationship, (3) the absence of a privilege of justification for such interference, and (4) damages resulting from defendants' conduct. A party that cannot prove actual pecuniary loss cannot prevail on a count of intentional interference with contractual relations solely on the basis of alleged harm to that party's business reputation. Shiner v. Moriarity, 706 A.2d 1228 (Pa. Super. 1998). Hicks testified in his deposition that he is not aware of not having been awarded any contracts because of -10- the alleged conduct of defendants. None of his existing contracts, including the Westwood Village contract, have been cancelled or altered. He knows of no loss as a result of the allegations he has made against defendants. Accordingly, summary judgment must be entered on the count alleging intentional interference with contractual relations. AND NOW, this ORDER OF COURT day of May, 1999, IT IS ORDERED: (1) Summary judgment IS GRANTED and plaintiff's complaint IS DISMISSED against defendant Ann Nissan. (2) Summary judgment IS GRANTED and plaintiff's complaint IS DISMISSED against defendant Barbara Stoddart-Morgan. William T. Smith, Esquire For Plaintiff Edgar B. l~yl~'y, J. Kevin C. McNamara, Esquire For Ann Nissan Mark W. AIIshouse, Esquire For Barbara Stoddart-Morgan : saa