Auld v. Mobay Chemical Company, Civ. A. No. 68-898.

• Decision Date: 05 June 1969
• Docket Number: Civ. A. No. 68-898.
• Citation: 300 F. Supp. 138
• Parties: William G. AULD, Plaintiff, v. MOBAY CHEMICAL COMPANY, a Delaware corporation, Ross B. Nason, an individual, Charles O. Koch, an individual, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

300 F. Supp. 138

William G. AULD, Plaintiff, v. MOBAY CHEMICAL COMPANY, a Delaware corporation, Ross B. Nason, an individual, Charles O. Koch, an individual, Defendants.

Civ. A. No. 68-898.

United States District Court W. D. Pennsylvania.

June 5, 1969.

Floyd L. Arbogast, Jr., Pittsburgh, Pa., for plaintiff.

Frank A. McFerran, Jr., and Frederick N. Egler, Pittsburgh, Pa., for defendants.

OPINION

GERALD J. WEBER, District Judge.

This is a motion to dismiss Plaintiff's Amended Complaint or in the alternative to strike certain counts.

This action stems out of an alleged conspiracy by the corporate defendant through its corporate officers, two of whom, Ross B. Nason and Charles O. Koch, are also defendants. In his original complaint, plaintiff alleges that on August 3, 1966 he was summarily dismissed from his employment by Messrs. Nason and Koch, the individual defendants, and alleges that since that time said individual defendants have conspired wilfully and intentionally to make false and defamatory statements about plaintiff calculated to injure his good name, reputation, business and profession and to keep plaintiff from procuring other employment.

Plaintiff instituted suit against these defendants by filing his complaint August 1, 1968, which purported to aver the above allegations. Defendants moved to dismiss the complaint for the reason that the plaintiff was barred by the applicable Pennsylvania Statute of Limitations. By order of this court dated October 7, 1968 we required plaintiff to amend his complaint to plead more fully acts or actions which occurred within one year of the filing of the complaint and to allege more fully those acts or actions which would indicate a conspiracy to defame, or a conspiracy to injure a person in his profession or occupation.

Plaintiff has amended his complaint as required and defendants again move for a motion to dismiss on the ground that relief is barred by the one year Pennsylvania statute of limitations applicable to libel and slander. 12 P.S. §§ 31 and 32.

Upon a hearing of said motions the plaintiff informed the court that four theories of recovery had been pleaded; defamation, a conspiracy to defame, a conspiracy to injure a person in his trade or profession, and a conspiracy to deprive plaintiff of his civil rights. We must, therefore, review each one of these theories in regard to defendants' allegations that all actions so pleaded are barred by the one year statute of limitations.

To the extent that plaintiff alleges acts of defamation, either slander or libel, there can be no doubt that claims based on these acts are barred except for such allegations of specific defamation occurring within one year prior to the filing of the complaint, i. e., from and after August 1, 1967.

Furthermore, the cause of action on defamation is barred as against any defendant not charged with a specific act subsequent to August 1, 1967.

Paragraphs 28 and 38 of the Amended Complaint contain the only allegations of a tortious act occurring within one year of the filing of plaintiff's complaint. The alleged libelous statement asserted in paragraph 28 involves a letter sent from one of defendant's officers, Peter Bauma, to a prospective employer of plaintiff. In that letter the following phrase appeared, "but we would not under any circumstances ever rehire Mr. Auld." This is the alleged libelous statement. As this phrase is not libelous per se, we will require the plaintiff to plead the extrinsic circumstances by which this statement is made allegedly defamatory. This letter was not written by individual defendants, Nason or Koch; therefore, the plaintiff must plead that the letter was sent by Mr. Bauma as part of the conspiracy; otherwise as to this allegation the individual defendants must be dismissed.

Paragraph 38 contains an averment that defendants continued making defamatory remarks to personnel of the Pittsburgh office of the United States Bureau of Internal Revenue, concerning plaintiff's alleged "kickbacks" and "purchasing irregularities" after August 3, 1967. This also appears to allege a defamation within the prescribed statutory period of one year. As to the other allegation of libel and slander occurring before August 1, 1967, they are hereby dismissed as barred by the statute of limitations.

Plaintiff by his Amended Complaint sought to clarify the position taken at the time of defendants' prior motion to dismiss. Plaintiff argues that he has a cause of action for civil conspiracy for which the statute of limitations is six years irrespective of the nature of the overt act by which the conspiracy is manifested. This we cannot accept. Since there are no appellate opinions in Pennsylvania controlling on this matter we are required to determine the issue as we believe the Supreme Court of Pennsylvania would so decide.

The conspiracy to be actionable must be a conspiracy to injure in one of the ways for which the law gives redress. Plaintiff's conspiracy claim must either by a conspiracy to injure by defamation or to injure through some non-defamatory but otherwise tortious action.

To the extent that we have a conspiracy to defame, we hold that the applicable period of limitation is the state statute of limitation on the overt act, i. e., one year. We decide this despite the holding of the Lackawanna County Common Pleas Court in Smith v. Morris, 40 Pa.D. & C. 237 1940, that applied a six year statute of limitation on allegations of conspiracy to defame and false imprisonment. We are not bound by this lower state court determination and we do not consider it well-founded.

There is authority elsewhere to support our decision.

In Cimijotti v. Paulsen, 230 F.Supp. 39 D.C.Iowa, 1964, affirmed 340 F.2d 613, 8th Cir., 1965 where plaintiff alleged a conspiracy to commit defamation the court held that the inclusion of the conspiracy count did not change in any way the statute of limitations for the tort itself.

Plaintiff's cause of action in Morrison v. National Broadcasting Company, Inc., 19 N.Y.2d 453, 280 N.Y.S.2d 241, 227 N.E.2d 572 1967 was defendant's act of intentionally inducing plaintiff to appear on what defendant knew to be a "rigged" television quiz program, which brought plaintiff into public scorn, ridicule and contempt so that his professional standing and reputation was seriously damaged. Plaintiff asserted that since this was an intentional tort the applicable statute of limitation was six years rather than the one year statute of limitation applicable to traditional defamatory torts of libel and slander. The Court held, citing the Restatement of Torts, § 559, that defamation is defined in terms of the injury, damage to reputation, and not in terms of the manner in which the injury is accomplished. In determining the nature of the claims asserted, the court must look to the essence of the action and not merely to its name. Since plaintiff's present action seeks relief for damages to his reputation and professional standing...