Doe v. Kohn Nast & Graf, PC

• Decision Date: 06 October 1994
• Docket Number: Civ. A. No. 93-4510.
• Citation: 866 F. Supp. 190
• Parties: John DOE, Esquire (pseudonym for an attorney), Plaintiff, and Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. KOHN NAST & GRAF, P.C., d/b/a Kohn Klein Nast & Graf, P.C. and Kohn Savett Klein & Graf, P.C., Harold E. Kohn, and Steven Asher, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

866 F. Supp. 190

John DOE, Esquire (pseudonym for an attorney), Plaintiff and Equal Employment Opportunity Commission, Plaintiff-Intervenor, v. KOHN NAST & GRAF, P.C., d/b/a Kohn Klein Nast & Graf, P.C. and Kohn Savett Klein & Graf, P.C., Harold E. Kohn, and Steven Asher, Defendants.

Civ. A. No. 93-4510.

United States District Court, E.D. Pennsylvania.

October 6, 1994.

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Alan B. Epstein, Jablon, Epstein and Wolf, Philadelphia, PA, for John Doe.

John Doe, pro se.

J. Freedley Hunsicker, Jr., Gregg R. Melinson, Drinker, Biddle & Reath, Donald J.P. Sweeney, Robyn F. McGrath, Sweeney, Sheehan & Spencer, William J. O'Brien, Conrad, O'Brien, Gellman & Rohn, P.C., Barbara A. O'Connell, Patrick T. Ryan, Drinker, Biddle & Reath, Philadelphia, PA, for Kohn Nast & Graf, P.C. and Steven A. Asher.

Carmen R. Matos, Deborah M. Floyd, E.E.O.C., Mary M. Tiernan, Jose L. Perez, E.E.O.C., Philadelphia, PA, for E.E.O.C.

Ronald P. Schiller, Piper & Marbury, Philadelphia, PA, Madeleine Schachter, New York City, for CBS, Inc.

Carl A. Solano, Schnader Harrison Segal & Lewis, Philadelphia, PA, for National Broadcasting Co., Inc., and Capital Cities/ABC, Inc.

Carmen R. Matos, E.E.O.C., Philadelphia, PA, for Ellen Braffman.

Robyn F. McGrath, Sweeney, Sheehan & Spencer, William J. O'Brien, Conrad, O'Brien, Gellman & Rohn, P.C., Barbara A. O'Connell, Philadelphia, PA, for Harold E. Kohn.

OPINION

GAWTHROP, District Judge.

This case today before the court on defendants' motion for partial summary judgment, involves a lawyer infected with the Human Immunodeficiency Virus "HIV" who claims that his law firm fired him because of his infection.

The defendants seek summary judgment on the portions of the defamation and invasion of privacy claims that plaintiff added to his second amended complaint; on the defamation and invasion of privacy claims against Harold Kohn individually; and on the claims that defendants violated sections of the Americans with Disabilities Act, 42 U.S.C. §§ 12112, et seq. (ADA), which prohibit employers from making improper medical inquiries and from interfering, coercing or intimidating employees who exercise their rights under the ADA.

Standard of Review

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." The inquiry for the court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). A party opposing summary judgment must marshal sufficient facts to show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

Defamation

The defendants advance several legal and factual arguments in support of their motion for judgment on the defamation claim added to the second amended complaint. I need not address all of these arguments. Upon the following reasoning, I find that, as a matter of law, these statements were fair comment upon judicial proceedings. As such, they were conditionally privileged against defamation suits, and defendants did not abuse this privilege.

The statements at issue appear at ¶¶ 53-56 of the Second Amended Complaint:

"53. On October 5, 1993, following the filing of this lawsuit, defendants, through their counsel Drinker Biddle & Reath, issued false press statements to members of the Philadelphia media for publication which stated that Attorney Doe:

... engaged in improper conduct with regard to the firm, and left when this was called to his attention.

54. In early December of 1993, defendants told the National Law Journal for publication that Attorney Doe had `erratic attendance and lack of commitment.'

55. In mid-December of 1993, defendants told members of the AIDS health care advocacy group ACT-UP that Attorney Doe `was erratic and inconsistent' and had `recent performance problems.'

56. In January and February of 1994, defendants, through their counsel Sweeney, Sheehan & Spencer, issued false press statements to NBC news and ABC news for broadcast to the public which stated that Attorney Doe `engaged in improper conduct' and `left when this was called to his attention.'"

The Kohn firm issued these statements during a time when plaintiff was holding press conferences and appearing on television news shows to discuss his allegations.

Under Pennsylvania law, attorneys and parties to a judicial proceeding enjoy an absolute privilege against defamation suits for any statements made during the course of those proceedings. Binder v. Triangle Publications, Inc., 442 Pa. 319, 323, 275 A.2d 53, 56 (1971). When a party makes these same statements outside of the courtroom by issuing a press release or holding a news conference, it may not claim this privilege.

However, individuals may invoke a qualified, or conditional, privilege when they make out-of-court statements if those statements are a fair and accurate report of statements made or pleadings filed in a judicial proceeding, provided that the reporter, the individual, does not abuse the privilege or make his report with the sole purpose of causing harm to the person defamed. See, e.g., Heyward v. Stouffer, 1991 WL 275604 (E.D.Pa. December 23, 1991); Binder, 442 Pa. at 323, 275 A.2d at 56.

The statements issued by the defendants are a fair and accurate report of pleadings and in-court statements made by defendants at future stages of the case. The defendants have repeatedly alleged, both in their papers and in open court, that they dismissed the plaintiff in March, 1993 because he had engaged in what they considered to be improper conduct. They have also alleged that they decided not to renew plaintiff's contract because his performance and attendance record did not meet their standards. See, e.g., Affidavit of Samuel E. Klein, Exhibit 37, Appendix to Defendants' Motion for Summary Judgment ("I recall clearly that Mr. Asher expressed some dissatisfaction with Mr. Doe's work performance. Mr. Asher stated that Mr. Doe was not around when Mr. Asher needed him, particularly in the mornings, and that Mr. Doe seemed to lack commitment and dedication to his work.").

Pennsylvania courts have not addressed the issue of whether the fair comment privilege applies to a party's fair and accurate report of statements and pleadings that have not yet been made or filed, but will be at the appropriate stage of the litigation.

Under Pennsylvania law, the fair comment privilege does apply to reports of pleadings even in the absence of judicial action upon the pleadings. See Pittock v. O'Niell, 63 Pa. 253 (1869); Mengel v. Reading Eagle Co., 241 Pa. 367, 88 A. 660 (1913); Godwin v. Daily Local News, 36 Chester Co.Rep. 35, n. 5 (1987); see also Kimball v. Post Pub. Co., 199 Mass. 248, 85 N.E. 103 (1908) (Pound, J.) ("incongruous result" follows if newspaper allowed to report document because judicial action taken upon it but if document has been filed but not yet heard, newspaper is subject to libel action for printing it); Eldredge, The Law of Defamation, § 79(b)(1) at 427, 430 (1978) (trend in cases decided since 1972 is that reports of pleadings upon which no judicial action has been taken comes within privilege to report judicial proceedings); but see Hanish v. Westinghouse Broadcasting Co., 487 F.Supp. 397 (E.D.Pa.1980).

The same "incongruous result" observed by Judge Pound would occur in this case if the fair comment privilege did not apply to statements that the party intends to make during the course of judicial proceedings. Plaintiff would be permitted to report his own allegations because he has filed his pleadings, but defendant is subject to a defamation claim because he has not had the opportunity to file a response with the court.

The essence of the defamation claim is that defendants are averred to have made certain comments setting forth with some particularity the reasons which they claim culminated in plaintiff's termination, those reasons being pejorative of the plaintiff to the extent of being defamatory. The defense argues that the defendants published these comments in response to the complaint and concomitant press conference.¹ The argument is that the defense should be allowed to respond to those utterances, and should not have to wait until its response is buttressed by its formal responsive pleadings, upon which the defense would be permitted to make fair comment, when finally pled. I agree with the defense position.

When the defense well knows that its pleading will in fact, formally set forth the position of the defense, which pleadings will inexorably be filed in due course, I conclude that they may fairly comment in advance. I find defendants' statements to be fair comment on the legal proceeding, and fairly within the defendants' First Amendment rights to speak to the cause of the action with pecuniary impunity.

Invasion of Privacy

Defendants seek summary judgment on the invasion of privacy claim, added to the Second Amended Complaint. According to the allegations, defendants allegedly opened plaintiff's personal mail with knowledge that they lacked the authority so to do. The defendants assert that the claim is untimely and that the evidence is insufficient.

Pennsylvania law provides a one-year statute of limitations on claims for invasion of privacy. 42 Pa.C.S. § 5523. The incidents at issue occurred as early as March, 1993. Plaintiff did not serve his Second Amended Complaint until July 1994. On this basis, defendants argue that the claim is time-barred.

The plaintiff claims that he did not begin to discover that this mail had been opened, and in some cases copied and resealed, until August, 1993, when the defendants showe...