Krolczyk, G. v. Goddard Systems, Inc. , 164 A.3d 521 ( 2017 )

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2017 Pa. Super. 159
G. MICHELLE KROLCZYK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GODDARD SYSTEMS, INC.; NICOLE
WISHARD, T/A THE GODDARD SCHOOL
OF HARRISBURG; GODDARD SCHOOL;
FLH, INC.
No. 533 MDA 2016
Appeal from the Order Entered March 3, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): 2008 CV 11907
LYDIA DICOLA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GODDARD SYSTEMS, INC., NICOLE
WISHARD, T/A GODDARD SCHOOL OF
HARRISBURG, THE GODDARD SCHOOL,
A FICTITIOUS NAME, AND FLH, INC.
No. 534 MDA 2016
Appeal from the Order Entered March 3, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): 2008 CV 12139-CV
BEFORE: BOWES, OLSON AND STABILE, JJ.
OPINION BY BOWES, J.: FILED MAY 23, 2017
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G. 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.
Ms. 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.
In late 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
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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.
The 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.
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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.
Prior 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.
On 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
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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.
On 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.
On January 28th, A.G. broke the toilet seat, threw water on the
bathroom floor, and began to roll around. On February 4 th, A.G. bit Ms.
Krolczyk in her forearm, leaving a mark. On the morning of February 5 th,
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
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afternoon. On February 6th, A.G. threatened students and teachers with
physical violence, screamed, and would not follow directions.
Thursday, 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.
The 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,”
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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.
On 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.
On 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
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suspected there was abuse or neglect in A.G.’s home. Plaintiffs were
mandated reporters of suspected abuse under Pennsylvania law.
Within 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 Exhibit I.
During 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.
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Ms. 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.
After 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
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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.1 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.”).
In this appeal from the grant of summary judgment, Plaintiffs raise
these averments:
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 post-hoc pretext?
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1
For inexplicable reasons, in deciding that Defendants offered a legitimate,
non-pretextual reason for firing Plaintiffs, the trial court relied upon federal
law disseminated in the area of age, race, or sex discrimination rather than
the rules applicable to grant of summary judgment in Pennsylvania.
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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 Appellant[s’] employment?
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 Appellant[s’] ability to obtain
employment in [their] chosen f[ield]?
Appellants’ briefs at 2.
We first set forth the principles applicable to grant of summary
judgment in Pennsylvania. As we observed in Nationwide Mut. Fire Ins.
Co. v. Modern Gas, 143 A.3d 412, 415 (Pa.Super. 2016) (quoting Atcovitz
v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002)), our
Supreme Court has often admonished that “summary judgment is
appropriate only in those cases where the record clearly demonstrates that
there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.” See Pa.R.C.P. 1035.2(1).
Moreover, when any court considers a motion for summary judgment, it is
required to accept all the facts of record as well as the reasonable inferences
from those facts in favor of the non-moving party. Nationwide, supra.
Additionally, the trial court “must resolve all doubts as to the existence of a
genuine issue of material fact against the moving party, and, thus, may only
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grant summary judgment where the right to such judgment is clear and free
from all doubt.” Id. at 415 (citation and quotation marks omitted).
As the appellate court, we are permitted to “reverse a grant of
summary judgment if there has been an error of law or an abuse of
discretion.” Id. Since the question of “whether there are no genuine issues
as to any material fact presents a question of law,” we engage in a standard
of review that is de novo, and are not required to “defer to the
determinations made by the lower tribunals.” Id. “If there is evidence that
would allow a fact-finder to render a verdict in favor of the non-moving
party, then summary judgment should be denied.” Id.
We will address together Plaintiffs’ first two claims, which pertain to
the grant of summary judgment as to the wrongful discharge causes of
action. It is evident herein that, in resolving the motion for summary
judgment as to wrongful discharge, the trial court did not view the facts in
the light most favorable to Plaintiffs, and, instead, accepted the version of
the facts proffered by Defendants. As more fully delineated infra, the trial
court also violated the well-established Nanty-Glo rule.
We first examine whether Plaintiffs have a viable wrongful discharge
cause of action. In Pennsylvania, absent an express agreement, there is a
presumption that any employment relationship is at-will, and thus can be
“terminated by either party at any time, for any reason or for no reason.”
Wakeley v. M.J. Brunner, Inc., 147 A.3d 1, 5 (Pa.Super. 2016) (citation
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omitted). In the seminal decision in Geary v. United States Steel Corp.,
319 A.2d 174 (Pa. 1974), our Supreme Court articulated that there is a
common law wrongful discharge cause of action in Pennsylvania for an at-
will employee if the employee’s firing violated public policy. However, the
Court concluded that no public policy was implicated in Geary’s termination.
Subsequently, in Shick v. Shirey, 716 A.2d 1231 (Pa. 1998), the
Supreme Court first announced a public policy exception to the at-will
employment doctrine. Therein, the Court held that, in Pennsylvania, an at-
will employee asserts a viable common law cause of action for wrongful
discharge when the employee maintains that he was fired because he
exercised his statutory right to file a workers’ compensation claim. Our High
Court ruled that the lawsuit could be brought since terminating an employee
for exercising his or her legal right to workers’ compensation violated
Pennsylvania public policy. See also Rothrock v. Rothrock Motor Sales,
Inc., 883 A.2d 511 (2005) (holding that it violates public policy for a father
to be dismissed for failing to prevent his son from obtaining workers’
compensation benefits); Highhouse v. Avery Transportation, 660 A.2d
1374 (Pa.Super. 1995) (concluding that an employee was wrongfully
discharged after filing an unemployment compensation claim); Reuther v.
Fowler & Williams, Inc., 386 A.2d 119 (Pa.Super. 1978) (ruling that a
cause of action for wrongful discharge was present where employee claimed
that he was fired for performing jury duty).
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The decision announced in Field v. Philadelphia Elec. Co., 565 A.2d
1170 (Pa.Super. 1989), is dispositive. Therein, plaintiffs, who were at-will
employees, filed an action against their employer raising, inter alia, a
wrongful discharge cause of action. We concluded that the cause of action
survived a demurrer since plaintiffs had set forth that their dismissals were a
violation of a recognized public policy. In Field, the employees maintained
that they were fired because one of them reported a violation of federal law
to the federal agency charged with oversight of the matter. They
additionally averred that the reporter was statutorily-required to report the
employer’s violation of the applicable federal law.
Since the employees alleged that they were all terminated because
one of them “performed a duty he was required to perform under federal
law,” the Field Court ruled that they had stated a claim for wrongful
discharge. Id. at 1180. We observed that the federal law in question was
“designed to protect the health and safety of the public” and that the
employee’s action of reporting the employer’s violation of the federal
mandates “directly advanced the public concerns addressed” by the statute
in question. Id.
In this case, Plaintiffs were mandated reporters of suspected child
abuse under 23 Pa.C.S. § 6311(a). Section 6311, which is entitled
“mandated reporters,” provides: “The following adults shall make a report of
suspected child abuse, subject to subsection (b), if the person has
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reasonable cause to suspect that a child is a victim of child abuse: . . . [a]
school employee [or a]n employee of a child-care service who has direct
contact with children in the course of employment.” 23 Pa.C.S. § 6311
(a)(4), (5). Subsection (b), basis to report, also applies herein:
(1) A mandated reporter enumerated in subsection (a) shall
make a report of suspected child abuse in accordance with
section 6313 (relating to reporting procedure), if the mandated
reporter has reasonable cause to suspect that a child is a victim
of child abuse under any of the following circumstances:
(i) The mandated reporter comes into contact with
the child in the course of employment, occupation
and practice of a profession or through a regularly
scheduled program, activity or service.
(ii) The mandated reporter is directly responsible for
the care, supervision, guidance or training of the
child, or is affiliated with an agency, institution,
organization, school, regularly established church or
religious organization or other entity that is directly
responsible for the care, supervision, guidance or
training of the child.
23 Pa.C.S. § 6311.
Plaintiffs pled and presented sufficient proof that A.G.’s behavioral
issues caused them to suspect that he was a victim of abuse or neglect.
They articulated that they believed that A.G.’s problems with soiling himself
and physically hostile behavior indicated that he may have been neglected or
abused. Plaintiffs also testified that they contacted the Department of
Education, which confirmed that these behaviors were indicators of
suspected child abuse or neglect. Finally, Jennifer G. admitted that her son’s
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hyper-aggressive behavior and bowel movements in his clothing were red
flags for possible child abuse or neglect.
Thus, Plaintiffs adduced sufficient proof to establish that they were
required, under Pennsylvania law, to report their suspicion that A.G. was
being neglected or abused. They also presented testimonial and
circumstantial evidence to support their position that they were discharged
solely because they planned to report, as required by the statute, that they
suspected that there was abuse or neglect in A.G.’s home. The most crucial
aspect of Plaintiffs’ proof about the reason for the terminations came from
Ms. Krolczyk’s testimony, which we are required to credit under the
standards applicable to summary judgment. Ms. Krolczyk’s deposition
indicated that Ms. Wishard informed Ms. Krolczyk that she was being
dismissed, “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.
This proof, standing alone, prevents the grant of summary judgment in favor
of Defendants.
However, there was additional, circumstantial evidence that Plaintiffs
were not fired for the reason proffered by Ms. Wishard, but due to their
articulated intent to report suspected abuse or neglect. Even though
Plaintiffs were purportedly terminated for engaging in restraint, Ms. Wishard
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and Jennifer G. admitted that other teachers were not discharged after they
had restrained children, including a teacher who pinched a child.
Significantly, Ms. Angie was not fired despite the fact that the journal
indicated that she actively participated in restraining A.G. on February 7,
2008.2
Plaintiffs’ evidence also included the following. Jennifer G. was present
on December 17, 2007, and observed Plaintiffs restraining A.G. They were
not fired then. Jennifer G. was told about an incident occurring on January
11, 2008, when A.G. was restrained. Plaintiffs were not terminated at that
time. Plaintiffs specifically told Jennifer G. about the events of February 7,
2008, immediately after they occurred. Plaintiffs were not discharged on
February 7, 2008. Likewise, Plaintiffs were not terminated on February 11,
2008, when they gave Ms. Wishard the journal, which documented instances
of restraint. Instead, Plaintiffs were fired on February 14, 2008,
immediately after they told Ms. Wishard that they were going to file a report
that they suspected A.G. was being abused or neglected.
Thus, Plaintiffs’ proof was sufficient to establish that the reason for
their discharge was their articulation that they, as mandated reporters, were
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2
We note that, for purposes of a summary judgment determination, we are
not permitted to credit Ms. Wishard’s representation that she did not fire Ms.
Angie because she interviewed Ms. Angie and Ms. Angie denied holding down
A.G.
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going to file a report with the Department of Public Welfare that they
suspected that A.G. was being abused or neglected. Child abuse and neglect
are matters of great public concern, and are advanced by the requirement
that certain persons report suspected abuse. Simply put, if a mandated
reporter could be fired for articulating an intent to report suspected abuse, it
would have a chilling effect on the very purpose for the statute in question.
Plaintiffs’ decision to file a report promoted the statute’s public policy of
protecting children. Plaintiffs have a viable cause of action for wrongful
discharge based upon public policy, and they presented sufficient evidence
that their discharge was based upon the implicated public policy.
Not only did the trial court ignore the evidence supporting the position
that Plaintiffs were terminated for telling Ms. Wishard that they were going
to report suspected child abuse or neglect, it also credited the testimonial
deposition of Ms. Wishard that Plaintiffs were not fired for that reason. As
noted, Ms. Wishard claimed that Plaintiffs were dismissed for violating school
policy against restraining children. We concur with Plaintiffs’ argument that
the grant of summary judgment herein violated the well-ensconced Nanty-
Glo rule. In Nanty–Glo v. American Surety Co., 163 A. 523, 524 (Pa.
1932), the Supreme Court reversed the entry of a directed verdict, and held
that, however “clear and indisputable may be the proof when it depends on
oral testimony, it is nevertheless the province of the jury to decide, under
instructions from the court, as to the law applicable to the facts.”
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Nanty–Glo is applicable in the summary judgment context, and
summary judgment may not be premised upon the acceptance of the
testimonial proof offered by the moving party. As our Supreme Court
articulated in Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 154 (Pa.
2009) (quoting Goodrich–Amram 2d § 1035.1, p. 423.), summary judgment
serves to avoid “a useless trial but is not, and cannot, be used to provide for
trial by affidavits or trial by depositions.” The admonition that “trial by
testimonial affidavit is prohibited ‘cannot be emphasized too strongly.’”
Stimmler, supra at 154 (partially quoting Curran v. Philadelphia
Newspapers, Inc., 439 A.2d 652, 662 (Pa. 1981)).
Herein, the trial court claimed that that it was not violating the Nanty-
Glo rule because the journals, documentary proof, established that Plaintiffs
restrained A.G. The trial court’s reasoning is misguided. The journal does
not set forth why Plaintiffs were fired; it merely proved the fact of restraint.
It was Ms. Wishard’s deposition testimony that established the purported
reason that she dismissed Plaintiffs. In short, in granting summary
judgment, the court not only ignored the above-delineated proof presented
by Plaintiffs, it also credited Ms. Wishard’s testimonial assertion that
Plaintiffs were terminated due to the fact that they engaged in restraining
A.G. The trial court was simply not permitted to accept Ms. Wishard’s
position on the reason for Plaintiffs’ termination due to both the proof
presented by Plaintiffs and the application of the Nanty-Glo rule.
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Defendants do not contest that Plaintiffs stated viable causes of action
for wrongful discharge if they were fired for stating that they were going to
report that they suspected the presence of abuse or neglect in A.G.’s
household. Their position is that Plaintiffs were dismissed not as a result of
this lawful activity but due to “separate, plausible, and legitimate reasons.”
Appellees’ briefs at 16. They continue that Plaintiffs’ terminations “had
nothing at all to do with [their] stated intention of reporting [their]
suspicions of child abuse,” and instead, that they were terminated based on
their restraint of a child in violation of school policy. Id. Defendants posit
that their separate, plausible, and legitimate reason for firing Plaintiffs
defeats Plaintiffs’ wrongful discharge causes of action. Id. at 19. They also
parrot the trial court’s reasoning that Nanty-Glo was not violated herein
since the journal established the existence of restraint.
We have discredited these positions in our analysis, supra. To accept
the assertion that Plaintiffs were discharged due to their restraint of A.G.,
one must credit Ms. Wishard’s testimonial evidence presented in her
deposition. This is prohibited by the Nanty-Glo rule. More importantly, to
conclude that Ms. Wishard dismissed Plaintiffs based upon restraint, one
must discredit Ms. Krolczyk’s deposition, wherein she stated that Ms.
Wishard told her that the termination was based upon the February 14, 2008
conversation regarding her decision to report. This would also violate the
precepts applicable in the summary-judgment context, where one must
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accept all the evidence presented by the nonmoving party as true. We thus
reject Defendants’ arguments.
In conclusion, Plaintiffs adduced sufficient proof to go to the jury on
the question of whether they were wrongfully discharged because they were
intended, as mandated reporters, to file a report of suspected abuse or
neglect in A.G.’s household. The jury must decide whether to credit Ms.
Wishard’s contrary explanation for Plaintiffs’ dismissals. We therefore hold
that summary judgment was improperly granted on Plaintiffs’ wrongful
termination causes of action.
We now address Plaintiffs’ position that their defamation causes of
action should have survived summary judgment. The elements of a cause of
action in defamation are codified in § 8343 of The Uniform Single Publication
Act, 42 Pa.C.S. §§ 8341-8345, as follows:
(a) Burden of plaintiff.--In an action for defamation, the
plaintiff has the burden of proving, when the issue is
properly raised:
(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.
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(6) Special harm resulting to the plaintiff from its
publication.
(7) Abuse of a conditionally privileged occasion.
42 Pa.C.S. § 8343.
Herein, Plaintiffs have conceded that they did not suffer special harm
from the publication. Ms. Krolczyk obtained other employment as an
educator, and Ms. DiCola elected to cease working. Appellants’ briefs at 36-
37. However, this statute “does not overrule the long line of cases in our
Supreme Court which hold that a slander per se is actionable without proof
of special damage.” Walker v. Grand Cent. Sanitation, Inc., 634 A.2d
237, 242 (Pa.Super. 1993) (adopting Restatement of Torts as applicable law
regarding defamation per se). Under the Restatement (Second) of Torts,
defamation per se occurs when the statement ascribes to the plaintiff any of
the following: commission of a criminal offense, a loathsome disease, serious
sexual misconduct, or conduct or characteristics that adversely affect the
plaintiff’s fitness to properly conduct his profession, trade or business.
Restatement (Second) of Torts § 570.3 See Livingston v. Murray, 612
____________________________________________
3
That section states:
One who publishes matter defamatory to another in such a manner
as to make the publication a slander is subject to liability to the
other although no special harm results if the publication imputes to
the other
(Footnote Continued Next Page)
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A.2d 443 (Pa.Super. 1992) (holding a statement defamatory if it blackens or
injures a person in his business or professional reputation).
As we delineated in Kurowski v. Burroughs, 994 A.2d 611, 617
(Pa.Super. 2010) (citations omitted), since the plaintiff has the burden of
proving the defamatory character of the communication under the Uniform
Single Publication Act, it “is the function of the court to determine whether
the challenged publication is capable of a defamatory meaning. If the court
determines that the challenged publication is not capable of a defamatory
meaning, there is no basis for the matter to proceed to trial.” Accord Baker
v. Lafayette College, 532 A.2d 399, 402 (Pa. 1987) (“In order for a
_______________________
(Footnote Continued)
(a) a criminal offense, as stated in § 571, or
(b) a loathsome disease, as stated in § 572, or
(c) matter incompatible with his business, trade, profession,
or office, as stated in § 573, or
(d) serious sexual misconduct, as stated in § 574.
Restatement (Second) of Torts § 570. These lawsuits implicate § 573, which
outlines:
One who publishes a slander that ascribes to another conduct,
characteristics or a condition that would adversely affect his
fitness for the proper conduct of his lawful business, trade or
profession, or of his public or private office, whether honorary or
for profit, is subject to liability without proof of special harm.
Restatement (Second) of Torts § 573.
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statement to be considered libelous or slanderous, the trial court must, in
the first instance, make a determination as to whether the communication
complained of can be construed to have the defamatory meaning ascribed to
it by the complaining party.”).
In the present case, the letter in question reported to the parents that
Plaintiffs were discharged “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 Exhibit I. The statement
accused Plaintiffs of no conduct that would impugn or blacken their
professional reputation; it merely reported that they were fired for
undisclosed reasons and that the best interests of the children, the parents,
and the school were behind the terminations. The letter did not report that
Plaintiffs were poor teachers or otherwise suggest that they were not
competent professionals. We therefore concur with the trial court that the
statements in the letter were not defamatory per se.
Plaintiffs counter that the communication that they were terminated
for the “good of the children” implicitly impugned their professional
reputation. Appellants’ briefs at 25-36. Thus, they premise their right to
recovery on an innuendo that an action taken for the best interest of the
children castigated their teaching abilities. “The question of whether
innuendo is actionable as defamatory is a question of law.” ToDay’s
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Housing v. Times Shamrock Communications Inc., 21 A.3d 1209, 1215
(Pa.Super. 2011). When this Court is confronted with a question of law, our
standard of review is de novo and the scope of review is plenary. Bowling
v. Office of Open Records, 75 A.3d 453 (Pa. 2013). In order to assess
whether the statement is capable of the defamatory meaning imputed to it
by a plaintiff, the “court must view the statements in context” to ascertain
“the impression it would naturally engender, in the minds of the average
persons among whom it is intended to circulate.” Kurowski, supra at 617.
In this respect, we concur with the trial court that “for the good of the
children” did not suggest that Plaintiffs were not capable teachers and did
not have the implication that Plaintiffs seek to have us make. Hence, we
affirm its decision to grant summary judgment in favor of Defendants as to
the defamation count.
The March 3, 2016 Order is affirmed in part and reversed in part.
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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