Beverly Enterprises Inc. v. Trump

• Decision Date: 08 July 1999
• Parties: (3rd Cir. 1999) BEVERLY ENTERPRISES, INC.; DONALD L. DOTSON APPELLANTS v. ROSEMARY TRUMP; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 585 NO. 98-3222
• Court: U.S. Court of Appeals — Third Circuit

Page 183

182 F.3d 183 (3rd Cir. 1999)

BEVERLY ENTERPRISES, INC.; DONALD L. DOTSON APPELLANTS v. ROSEMARY TRUMP; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 585

NO. 98-3222

U.S. Court of Appeals, Third Circuit

Argued December 11, 1998

Opinion Filed June 28, 1999

Corrected July 8, 1999

On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civil Action No. 97-cv-01490) District Judge: Honorable Gary L. Lancaster

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Michael T. McMenamin (Argued) Walter & Haverfield 50 Public Square 1300 Terminal Tower Cleveland, OH 44113 Attorney for Appellants

Claudia Davidson Healey, Davidson & Hornack Law & Finance Building, 5th Floor Pittsburgh, PA 15219 and Harold C. Becker (Argued) Associate General Counsel Service Employees International Union 14 West Erie Street Chicago, IL 60610 Attorneys for Appellees

Geraldine R. Gennet General Counsel Kerry W. Kircher Deputy General Counsel Office of General Counsel U.s. House of Representatives 219 Cannon House Office Building Washington, D.c. 20515-6601 Attorneys for Amicus Curiae Bipartisan Legal Advisory Group of the United States House of Representatives

Before: Becker, Chief Judge, and Stapleton, Circuit Judges, and HARRIS,^* District Judge

OPINION OF THE COURT

Stapleton, Circuit Judge

This diversity-based defamation action arises from statements allegedly made by a union representative about a company official during two separate incidents, one at a political rally and another at a "Town Hall meeting." The District Court dismissed the plaintiffs' complaint after finding the comments at the rally incapable of defamatory meaning and the Town Hall meeting comment protected under the doctrine of absolute testimonial immunity. Although for somewhat different reasons, we will affirm.

I.

There is a long-standing and acrimonious relationship between Beverly Enterprises, a national provider of nursing home care, and the Service Employees International Union ("SEIU"), whose local affiliates represent a substantial number of Beverly's employees. Plaintiffs are Beverly Enterprises and Donald L. Dotson, Beverly's Senior Vice President for Labor and Employment. Before joining Beverly Enterprises, Dotson had a prestigious career in labor relations, serving as Chairman of the National Labor Relations Board and as Assistant Secretary for Labor- Management Relations at the U.S. Department of Labor. This suit arises from two incidents in which Rosemary Trump, President of Local 585 of the SEIU, allegedly made false and defamatory statements about Dotson and Beverly. Plaintiffs allege that, as a result of the statements uttered by Trump, Dotson and Beverly have suffered damage to their reputations. A district court's order dismissing a complaint is subject to plenary review. Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1997 (3d Cir. 1993). We accept as true all well-pleaded factual allegations in the plaintiffs' complaint and all reasonable inferences therefrom. Independent Enterprises v. Pittsburgh Water, 103 F.3d 1165, 1168 (3d Cir. 1997). The parties agree that Pennsylvania law governs this dispute.

II.

The first set of allegedly defamatory statements were made in August, 1996, at a political rally in Pittsburgh, Pennsylvania, sponsored by the Dole/Kemp presidential campaign. Plaintiffs allege that Trump approached Dotson in the midst of a large crowd, ascertained his identity as a Beverly official, and asked him whether he knew who she was. When Dotson said he did not, Trump became visibly upset, told Dotson he should know her, identified herself, and then began to berate Dotson in a loud and angry voice. Specifically, Trump accused Dotson of being a "criminal" and said that "you people at Beverly are all criminals." When Dotson tried to respond, Trump cut him off and angrily accused him of "devoting [his] entire career to busting unions." Despite Dotson's efforts at reasoned discourse, Trump continued berating Dotson, finally shouting at him: "I know your kind. You're just part of that World War II generation that danced on the graves of Jews."

Plaintiffs allege that these statements were false and defamatory as to both Dotson and Beverly Enterprises. Moreover, they allege that Trump uttered the statements with actual malice, and that, as a result of these statements, Dotson suffered damage to his reputation. The District Court concluded that each of the three statements at the rally were incapable of defamatory meaning because they constituted mere hyperbole and insulting rhetoric, all too common in labor disputes.

We begin by addressing Trump's alleged statements accusing Dotson of "union-busting" and referring to Dotson and others at Beverly as "criminals." By statute in Pennsylvania, a plaintiff in a defamation action has the burden of proving:

"(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; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of any conditional privilege."

42 Pa. C. S. § 8343(a) (West 1999).

The Pennsylvania Supreme Court has held that "[i]n an action for defamation, it is the court's duty to determine if the publication is capable of the defamatory meaning ascribed to it by the party bringing suit." MacElree v. Philadelphia Newspapers, Inc., 674 A.2d 1050, 1053 (Pa. 1996). "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him." Id. at 1055 (quoting Thomas Merton Center v. Rockwell Int'l Corp., 442 A.2d 213, 215 (Pa. 1981)).

Appellants contend that Trump's references to "criminals" and "union busting" were defamatory per se because they imputed criminal conduct to both Dotson and Beverly.¹

Moreover, they argue that other attendees at the Dole/Kemp rally within earshot could reasonably have interpreted Trump's statements as alleging actual facts about Dotson and Beverly.

We disagree. Although Trump's statements were undoubtedly offensive and distasteful, the law of defamation does not extend to mere insult. Courts in Pennsylvania and elsewhere have long recognized a distinction between actionable defamation and mere obscenities, insults, and other verbal abuse. "[S]tatements which are merely annoying or embarrassing or no more than rhetorical hyperbole or a vigorous epithet are not defamatory." Kryeski v. Schott Glass Techn., Inc., 626 A.2d 595, 601 (Pa. Super. 1993) (quoting Redding v. Carlton, 296 A.2d 880, 881 (Pa. Super. 1972)); see also Greenbelt Cooperative Publishing Assoc. v. Bresler, 398 U.S. 6, 14 (1970) (finding that a statement that was "no more than rhetorical hyperbole, a vigorous epithet" was not slander). As the Restatement (Second) of Torts explains:

"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 listeners to amount to nothing more. This is true particularly when it is obvious that the speaker has lost his temper and is merely giving vent to insult. Thus when, in the course of an altercation, the defendant loudly and angrily calls the plaintiff a bastard in the presence of others, he is ordinarily not reasonably to be understood as asserting the fact that the plaintiff is of illegitimate birth but only to be abusing him to his face. No action for defamation will lie in this case."

Restatement (Second) of Torts § 566, comment e (1977).

Similarly here, Trump's exclamation that "you people at Beverly are all criminals" is reasonably understood as a vigorous and hyperbolic rebuke, but not a specific allegation of criminal wrongdoing. Trump's accusation that Dotson "devot[ed] [his] entire career to busting unions" is equally incapable of a defamatory construction. Appellants describe these statements as "mean-spirited . . . accusations of illegal and immoral conduct." First, it is doubtful at best that an accusation of "union-busting" amounts to an insinuation of criminal activity. Even if it were so understood, however, the reasonable listener would recognize this statement as merely a vituperative outburst which, although undoubtedly offensive, it is not actionable in defamation. On this basis, we conclude that these two statements are incapable of defamatory meaning and thus cannot support an action in tort.

Plaintiffs' claim based on the third comment Trump allegedly made at the rally -- that Dotson was "part of that World War II generation that danced on the graves of Jews" -- fails for a different reason. As a rule, except as to allegations of slander per se, plaintiffs in slander actions must allege special damages beyond an injury to reputation. 42 Pa. C. S. § 8343(a)(6); Baird, 285 A.2d at 171 ("[i]t is a general rule that defamatory words are not actionable, absent proof of special damage"); Solosko v. Paxton, 119 A.2d 230, 232 (Pa. 1956) ("[g]enerally speaking, damages for defamatory words when spoken are not recoverable in the absence of proof of special damages"); Altoona Clay Prod. Inc., v. Dun & Bradstreet, Inc., 246 F. Supp. 419, 422 (W.D. Pa. 1965), rev'd on other grounds, 367 F.2d 625 (3d Cir. 1966) ("The Pennsylvania cases require both the allegation and proof of [a] specific item of damage to support the recovery."); Restatement (Second) of Torts, § 558(d). Whereas the aforementioned comments arguably impute criminal conduct to the plaintiff, and thus constitute allegations of slander per se, this accusation of bigotry does not fall within the narrowly defined categories of per se defamation. Clemente, 749 F. Supp. at 677 (citing the four categories of slander...