Wilson v. Benjamin

WIEAND, Judge,

dissenting:

I respectfully dissent. After analyzing the union newsletters written by Ricardo Benjamin, I am constrained to conclude that they are not capable of a defamatory meaning as to appellees. Therefore, I would reverse the judgment entered in appellees’ favor and direct that judgment be entered for appellants.

James Wilson and Louella Hynson were employees of the Philadelphia Naval Hospital. When a rating panel rated Wilson “qualified” but not “highly qualified” for the position of foreman in food management, he filed a grievance. Louella Hynson acted as his representative. While the grievance was pending, Ricardo Benjamin authored and distributed several issues of a union newsletter which Wilson and Hynson contend was defamatory. The learned trial judge, sitting without a jury, found that the newsletters were libelous per se. Although special damages were not proved, he awarded damages to each plaintiff of $2,500.00.

“A man’s good name is as much his possession as his physical property. It is more than property, it is his guardian angel of safety and security; it is his lifesaver in the sea of adversity, it is his parachute when he falls out of the sky of good fortune, it is his plank of rescue in the quicksands of personal disaster.” Musmanno, J., in Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 173, 191 A.2d 662, 665 (1963). A communication is defamatory of another’s good name if it “ ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ Procedurally, it is the function of the court in the first instance to determine whether the communication com*223plained of is capable of a defamatory meaning. The test is the effect the statement would fairly produce, or the impression it would naturally engender, ‘in the minds of the average persons among whom it is intended to circulate.’ ” Rybas v. Wapner, 311 Pa.Super. 50, 54-55, 457 A.2d 108, 110 (1983), quoting Corabi v. Curtis Publishing Co., 441 Pa. 432, 441 & 447, 273 A.2d 899, 904 & 907 (1971). The meaning of an allegedly defamatory communication must be ascertained by reading the communication as a whole and in context. Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 482 n.3, 448 A.2d 6, 10 n.3 (1982). “Defamatory words, in order to be actionable, must refer to some ascertained or ascertainable person, and that person must be the plaintiff.” Schonek v. W.J.A. C., Inc., 436 Pa. 78, 82-83, 258 A.2d 504, 507 (1969), quoting 22 P.L.E. Libel and Slander § 17.

The majority says that statements made in the union’s newsletters were libelous per se as to both appellees because they “falsely accused Wilson of misrepresenting his qualifications for the position sought; accused Hynson of defaming the integrity of a member of the rating panel; and made allegations of breaking and entering and stealing against both appellees.” (At 333.) A careful analysis of the newsletters, I suggest, discloses that there are no statements which are capable of such a defamatory meaning.1

The following excerpted passages are pertinent to the statements regarding Wilson’s qualifications:

“[Mr. Wilson’s] claim of being a Snapper for 17 years: there is no official record to substantiate such claim[.]”

(Plaintiffs’ Exhibit #4).

“The panel then was fooled by Wilson[’s] claim of 17 years as a snapper, they not being fully informed[,] accepted the 17 years as years of actual work as foreman or supervisor. A snapper is not a supervisor.”

*224(Plaintiffs’ Exhibit #5). I am unable to interpret these statements as “allegations” that Wilson lied or falsely misrepresented his qualifications. The writer of the newsletter did no more than comment that experience as a “snapper” did not qualify as “supervisory experience.” He also commented that proof of Wilson’s experience was lacking. Such statements, in my opinion, cannot be said to engender naturally a belief that Wilson willfully lied so as to lower him in the estimation of his fellow workers. Because there was no defamatory meaning to be drawn from these words, I would hold that the trial court erred when it based an award of damages thereon.

Benjamin also wrote:

“We believe there was [sic] malicious willful attempts made to continue the buddy system by ratings given some applicants^] ratings which we believe no employee in the Federal Service can honestly justify as deserving.
“We know and is [sic] a party to predetermination in that management officials and us [sic] had so acted in favor of Wilson.”

(Plaintiffs’ Exhibit #4).

“We can honestly say that our thinking was colored by the high esteem in which Wilson was held and that is borne out in the supervisor evaluation which we believe was an caculative [sic] attempt to carry on the buddy type of promotions. There is no doubt in our minds that had Wilson rated in the top group regardless of where, he would of [sic] been selected and all kind of justification would of [sic] been written by his immedeate [sic] supervisor.”

(Plaintiffs’ Exhibit #5). These were references to the fact that Wilson had been rated “highly qualified” by prior rating panels. I have read and re-read these statements but am unable to find therein a meaning defamatory of Wilson. At worst, they can be interpreted as a suggestion that Wilson’s prior ratings and the high esteem in which he had been held were attributable to high ratings given by a friendly supervisor. To suggest that a person’s high rat*225ings were attributable to friendly connections may be offensive to the thin-skinned, but it cannot truly be said to be defamatory. It suggests a reality which is part of the politics of the workplace. There was a very real dispute which existed in this workplace, and there were bound to be differences of opinion and perhaps angry words spoken in support of one side and in derogation of the other. However, “[statements which represent differences of opinion or are annoying or embarrassing, are, without more, not libelous.” Bogash v. Elkins, 405 Pa. 437, 440, 176 A.2d 677, 679 (1962).

The reference in the newsletter to breaking and entering and stealing, when taken in context, cannot be interpreted as an accusation of a crime. It referred to the taking and copying of a letter which had been posted on a bulletin board. Moreover, the charge was made so generally that it cannot reasonably be interpreted as an accusation against any specific person. The newsletter stated, cryptically, as follows:

“This is a Union with a heart, if not the most serious of charges for breaking and entering and in essence stealing would be filed against those whom open [sic] the locked Union Bullitin [sic] board and took pictures of the letter there in [sic].”

(Plaintiffs’ Exhibit #5). This was a general accusation that someone had opened a locked, glass bulletin board in the workplace in order to make a copy of a letter which had been posted thereon. In reality, this was not an accusation that anyone had committed a crime. Even if it could be so construed, moreover, it cannot reasonably be interpreted as an accusation directed against either Wilson or Hynson. A careful reading suggests that the author of the newsletter was unaware of the person or persons who had committed this “terrible” deed. A continued reading of the remaining paragraph discloses a suggestion that if employees wished copies of notices, the union would make them available upon request.

*226Mrs. Hynson, according to the newsletter, had made a charge against an individual who served on the rating panel “that tends to defame or mar that person [sic] character, dignity, integrity, honesty, or principles and implies conduct unbecoming to society____” An accusation made by Mrs. Hynson against Mrs. Pauline Elliott, a panel member, was said to be “willful, malicious, slanderious [sic], unwarranted and tends to defame and mar the lady [sic] principles.” “We are very disturbed,” the writer said, “by the attack on [a] specific member of the Panel____ To us the attack on Mrs. Pauline Elliott is malicious, premeditated, willful and intended to defame and destroy Mrs. Elliott’s integrity, dignity, principles and dedication to serve. It question [sic] the honor of the board member selected by this Union and there-by is an attack on the Union as well.” (Plaintiffs’ Exhibit #5). Also

“The charges against Mrs. Pauline Elliot [sic] is [sic] willful and unwarranted[,] malicious[,] slanderious [sic] and tends to defame and mar: They are allegations made by a third party whom [sic] was not an applicant or whom [sic] did not act in any certified official capacity.”

(Plaintiffs’ Exhibit #4). A close examination discloses that these are expressions of opinion. They contain no facts. The charges which Mrs. Hynson was alleged to have made against Mrs. Elliott are nowhere recited or disclosed. Instead, the writer appears to have assumed that the specific charges were known to his readers. He added nothing factually, not expressly nor by necessary implication, to the reader’s knowledge. He merely characterized the charges allegedly made by Mrs. Hynson according to his own expression of opinion. He did no more than express a judgment upon known or assumed facts. For such an expression of opinion, an action of defamation cannot be sustained. Restatement (Second) of Torts § 566, comment d. “A certain amount of vulgar name-calling is frequently resorted to by angry people without any real intent to make a defamatory assertion, and it is properly understood by reasonable *227listeners to amount to nothing more.” Restatement (Second) of Torts § 566, comment e.

I would reverse and direct that judgment be entered in favor of appellants.

. An analysis is made difficult by what, in charity, might be termed the rambling and disjointed writing style of the author of the newsletters.