Baker v. Lafayette College

• Decision Date: 28 January 1986
• Citation: 504 A.2d 247,350 Pa.Super. 68
• Parties: , 30 Ed. Law Rep. 431 Melvin BAKER, Appellant, v. LAFAYETTE COLLEGE. 02809 PHILA. 1982
• Court: Pennsylvania Superior Court

Page 247

504 A.2d 247

350 Pa.Super. 68, 30 Ed. Law Rep. 431

Melvin BAKER, Appellant, v. LAFAYETTE COLLEGE.

02809 PHILA. 1982

Superior Court of Pennsylvania.

Submitted March 19, 1984.

Filed Jan. 28, 1986.

[350 Pa.Super. 70] J. Stephen Kreglow, Easton, for appellant.

George C. Laub and Norman Seidel, Easton, for appellee.

Before SPAETH, President Judge, and ROWLEY and BECK, JJ.

BECK, Judge:

Appellant Melvin Baker ("Baker") was employed by appellee Lafayette College ("the College") as an assistant professor of art under a two-year contract. The College did not reappoint Professor Baker at the end of his two-year term. After Baker's internal appeals proved unsuccessful, he commenced the instant action against the College. His complaint contained three counts: Counts I and II sounded in defamation, and Count III in breach of contract. Baker brings the instant appeal from two orders of the trial court. The first order sustained the College's preliminary objections with respect to parts of counts I and II of the complaint and dismissed the complaint with respect to those parts of Counts I and II. The second order granted the College's motion for summary judgment on all remaining claims. We affirm.

DEFAMATION

Baker's defamation claims are based on four documents, attached as exhibits to his complaint, containing statements pertaining to Baker's performance as a faculty member at Lafayette College. ¹ Exhibit A is a letter written by Professor Joseph Gluhman, then head of the art department, evaluating Baker's performance after the first year of his two-year appointment. Exhibit B is another evaluation of Baker's performance by Professor Gluhman, dated midway through the second year of Baker's contract. Both of these letters are highly critical of Baker's teaching ability, his grading standards, his willingness to contribute to improving the art department and his relationships with other members of the faculty. The second letter (Exhibit B) specifically recommends that Baker not be reappointed.

Exhibit C is a memorandum from Gluhman to Provost George Sause commenting unfavorably on the presence of Baker's wife in his classes. Gluhman concludes the memo by stating that no action should or need be taken because Baker had already Finally, Exhibit D is a report written by Dean David Pease of the Tyler School of Art and addressed to Sause. The report states that Pease visited the Lafayette campus on December 20, 1977 at Gluhman's invitation "to discuss the performance of a member of the studio faculty and to review the decision concerning his termination." In the report, Pease indicates his agreement with the decision not to reappoint Baker, and he repeats several of the factual statements about Baker's teaching practices contained in Exhibits A and B, attributing these statements to Gluhman.

been informed that he would not be reappointed.

The trial court dismissed Baker's complaint with respect to Exhibits A and B on the grounds that Baker consented to the publication of these evaluations and that this consent gives the College an absolute privilege. We agree. Section 583 of the Restatement (Second) of Torts (1977) states that "the consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation." Comment (f) elaborates on the meaning of "complete defense," saying

The privilege conferred by the consent of the person about whom the defamatory matter is published is absolute. The protection given by it is complete, and it is not affected by the ill will or personal hostility of the publisher or by any improper purpose for which he may make the publication.

In DeLuca v. Reader, 227 Pa.Super. 392, 323 A.2d 309 (1974), this court cited § 583 in support of its holding that a letter explaining the reasons for disciplinary action against an employee was absolutely privileged where the collective bargaining agreement between the employer and the labor union required the employer to state in writing the reasons for discharge or other disciplinary action. DeLuca is commonly cited for the proposition that the public policy embodied in the federal labor laws favoring private resolution of labor-management disputes requires an absolute privilege to facilitate open and freewheeling debate. See, e.g., Gordon v. Lancaster Osteopathic Hospital, 340 Pa.Super. 253, 489 A.2d 1364 (1985) (Cirillo, J. concurring and dissenting); Agriss v. Roadway Express Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984). However, the opinion may also be fairly read as holding that where an employment contract mandates that certain written notices or statements be disseminated to interested persons involved in evaluating an employee's record for the purposes of retention, promotion, discharge or discipline, an employee who is a party to the contract has consented to the publication of such statements, making them absolutely privileged.

We believe that the concept that an employer should not be subject to a defamation suit by an employee based on statements the employer is contractually compelled to make may be extended to employment contracts in non-union contexts as well. In the instant case, Baker argues (in support of his breach of contract claim) that the Faculty Handbook is part of his employment contract. The Handbook provides for annual written evaluations by the department head. Recognizing the implications of this argument, Baker concedes that he consented to be evaluated:

By signing his employment contract he agreed to the evaluation procedures as set forth in The Faculty Handbook. Baker admits The Faculty Handbook contained conditions bearing upon his contract with College. Further, it cannot be argued that by accepting those conditions he did not agree to the evaluation process contained therein. Stated simply, Baker consented to be subject to the evaluation process.

Appellant's Brief at 16. As we shall explain in more detail below, we agree that the terms and conditions in the Faculty Handbook were part of the contract between Baker and the College. We therefore hold that Baker consented to the publication of the evaluations which constitute Exhibits A and B Baker's position is that any consent he gave to be evaluated does not bar our inquiry into the accuracy and objectivity of the evaluations and the state of mind and degree of care of those responsible for the publications. Baker relies on comment (d) to § 583 of the Restatement, which states that "one who agrees to submit his conduct to investigation knowing that its results will be published, consents to the publication of the honest findings of the investigators " (emphasis added). Baker contends that because of Professor Gluhman's bias and irrational behavior, his evaluations were not honest, objective or legitimate and hence should not be privileged.

Baker's argument fails because it is inconsistent with the nature of an absolute privilege. In determining the meaning intended by the drafters of § 583 of the Restatement, we should view the commentary with caution, just as we hold that the text of a procedural rule or uniform act controls over the comments thereto to the extent they are inconsistent. See, e.g., In re Bristol Associates Inc., 505 F.2d 1056 (3rd Cir.1974) (comments to Uniform Commercial Code). We therefore decline to apply comment (d) in the manner suggested by Baker because that would have the effect of converting the consent privilege from an absolute privilege to a conditional one.

The courts of our sister states which have applied § 583 have consistently held that consensual publications are absolutely privileged and that the absolute character of the privilege forbids inquiry into ill will, negligence or actual malice (knowledge of or recklessness as to falsity). Royer v. Steinberg, 90 Cal.App.3d 490, 153 Cal.Rptr. 499 (1979); Dominguez v. Babcock, Colo.App., 696 P.2d 338, 339 (1984), cert. granted (Colo. Feb. 4, 1985); Ernst v. Indiana Bell Telephone Co., Ind.App., 475 N.E.2d 351 (1985); Johnson v. City of Buckner, 610 S.W.2d 406 (Mo.Ct.App.1980); Gengler v. Phelps, 92 N.M. 465, 589 P.2d 1056 (1978). The California court explained this principle succinctly:

Royer also argues that the defense of consent should not be allowed where there is a showing of "reckless disregard for the truth." This is a misunderstanding of the law.... [quoting comment (f) to § 583 of the Restatement]. By its very definition, an absolute privilege cannot be overcome by a showing of actual malice; malice is simply not the proper subject of inquiry in such a case.

Royer v. Steinberg, 90 Cal.App.3d at 499, 153 Cal.Rptr. at 504.

We also believe as a matter of policy that the consent privilege should be absolute. The person who agrees to submit his work to criticism or evaluation assumes the risk that the criticism may be unfavorable. Therefore when that person consents to a publication of the evaluation he has reason to know that the publication may be defamatory and should not be heard to complain if that is in fact the case. See Comment (d) to § 583 of the Restatement.

We therefore agree with the well-reasoned decisions of our sister states. The existence of malice, recklessness or negligence does not defeat a privilege based on consent, because such a privilege is absolute. The trial court was correct in holding Exhibits A and B absolutely privileged as a matter of law and dismissing Baker's defamation claims with respect to these documents.

Exhibit C (memorandum from Professor Gluhman to Provost Sause) is likewise a communication concerning Baker's performance. However, it is not one of the formal evaluations provided for in the Faculty Handbook. Therefore this document is not absolutely privileged on consent grounds. In granting the College's motion for summary judgment, the trial court held that Exhibit C was not capable of defamatory meaning and in the alternative that it was conditionally privileged as a...