Livingston v. Murray

• Decision Date: 23 November 1992
• Citation: 612 A.2d 443,417 Pa.Super. 202
• Parties: , 77 Ed. Law Rep. 326, 20 Media L. Rep. 1824 Eileen LIVINGSTON, Appellant, v. John E. MURRAY, Jr., in His Own Right, and As Agent for Duquesne University, and Duquesne University.
• Court: Pennsylvania Superior Court

Page 443

612 A.2d 443

417 Pa.Super. 202, 77 Ed. Law Rep. 326,

20 Media L. Rep. 1824

Eileen LIVINGSTON, Appellant, v. John E. MURRAY, Jr., in His Own Right, and As Agent for

Duquesne University, and Duquesne University.

Superior Court of Pennsylvania.

Argued April 23, 1992.

Filed June 29, 1992.

Petition for Allowance of Appeal Denied Nov. 23, 1992.

Joel S. Sansone, Pittsburgh, for appellant.

Robert E. Durrant, Pittsburgh, for appellee.

Before HUDOCK, MONTGOMERY and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from the order of the lower court which granted appellees' motion for summary judgment. The sole issue presented for our review is whether the trial court erred in granting summary judgment on the basis that appellees' statements were incapable of defamatory meaning. For the reasons discussed below, we affirm.

Before addressing appellant's claim, we will briefly recount the relevant facts of this case. Appellant, Eileen Livingston, was employed by Duquesne University as its athletic director. Because the athletic program was to be reorganized or restructured, appellant was notified in March 1989 that her contract would not be renewed and that her employment at Duquesne would terminate as of June 30, 1989. Articles discussing the reorganization/restructuring of Duquesne University's athletic program as well as other changes at Duquesne were published in the March 21, 1989 edition of the Pittsburgh Post-Gazette and in the April 6, 1989 and October 22, 1989 editions of the Pittsburgh Press.

Because of the allegedly defamatory statements contained in these articles, appellant instituted this action against appellees, Duquesne University and its president, John E. Murray, Jr., by writ of summons on April 3, 1990. A complaint involving only the March and April articles was subsequently filed. In March of 1991, appellant sought leave of court to amend her complaint to include a third cause of action for the allegedly defamatory comments contained in the October article. Because the statute of limitations had expired as to the October publication, appellant's motion to amend was denied by the lower court. ¹ See 42 Pa.C.S.A. § 5523(1) (providing a one-year statute of limitations for defamation actions) and Graham v. Today's Spirit, 503 Pa. 52, 58, 468 A.2d 454, 457 (1983) (providing that a separate cause of action arises for defamatory statements which are contained in separate editions). After obtaining appellant's consent, appellees amended their answer to include new matter raising the statute of limitations as an affirmative defense to the March publication. Appellees thereafter filed a motion for summary judgment which was granted by the trial court. ² This timely appeal followed.

In reviewing the trial court's grant of summary judgment, we observe that

[s]ummary judgment is properly granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P.[, Rule] 1035(b)[, 42 Pa.C.S.A.] An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. The moving party has the burden of proving the nonexistence of any genuine issue of material fact. [Further,] [t]he record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Marks v. Tasman, 527 Pa. 132, 134-135, 589 A.2d 205, 206 (1991) (citations omitted). Accord Curran v. Philadelphia Newspapers, Inc. (I), 497 Pa. 163, 177-178, 439 A.2d 652, 659 (1981); Neish v. Beaver Newspapers, Inc., 398 Pa.Super. 588, 590, 581 A.2d 619, 620-621 (1990), allocatur denied, 527 Pa. 648, 593 A.2d 421 (1991). Moreover, an appellate court will overturn a trial court's entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., --- Pa.Super. ----, ----, 608 A.2d 1074, 1077 (1992), citing McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

With respect to defamation actions, we additionally note that "[i]t is the function of the court to [initially] determine whether the challenged publication is capable of a defamatory meaning. If the court determines that the challenged publication is not capable of a defamatory meaning, there is no basis for the matter to proceed to trial." Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 464-465, 442 A.2d 213, 215-216 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). Accord Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987); Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Neish v. Beaver Newspapers, Inc., 398 Pa.Super. at 591, 594, 581 A.2d at 621, 622-623; Dobson by Dobson v. WBRE-TV, Inc., 347 Pa.Super. 612, 614, 500 A.2d 1226, 1227 (1985); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 305, 483 A.2d 456, 461 (1984); Zartman v. Lehigh County Humane Society, 333 Pa.Super. 245, 250, 482 A.2d 266, 268 (1984). However, in cases "where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, the issue must proceed to the jury." Dougherty v. Boyertown Times, 377 Pa.Super. 462, 472, 547 A.2d 778, 783 (1988). Accord Corabi v. Curtis Publishing Co., 441 Pa. at 447, 273 A.2d at 906-907; Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. 253, 261, 489 A.2d 1364, 1368 (1985). We will evaluate the trial court's decision in accordance with these principles.

The article published in the April 6 edition of the Pittsburgh Press appeared as follows: ³

Duquesne hires Colleary as AD

Duquesne University has hired Marist College's Brian Colleary as athletic director to replace Eileen Livingston, fired last month after nearly six years as head of the Dukes' athletic department.

Colleary has been athletic director at Marist in Poughkeepsie, N.Y., for four years, during which the men's basketball team made two NCAA tournament appearances and the men's tennis, lacrosse, football and women's volleyball teams made significant improvement. Colleary oversaw a program of 14 Division I sports at Marist.

Duquesne President Dr. John Murray said Colleary was recommended to him by "some people in athletics for whom we have the utmost respect. He comes with a great many recommendations from people who have seen his work.["] "After meeting him, we understand why there was so much enthusiasm in those recommendations."

Colleary also is given credit for expanding and improving the school's athletic facilities and upgrading the men's basketball schedule to include such teams as Providence and Villanova and a berth in the ECAC Holiday Festival in 1987.

Marist's basketball program recently completed a two-year NCAA probation tenure for violations committed in 1984, before Colleary was hired.

Murray said that issue was discussed during the interview.

"As I understand it, Brian made absolutely certain that situation was not only resolved but would never occur again, so it was a very positive aspect of his background."

Murray said the hiring of Colleary would help Duquesne in the pursuit of a head basketball coach.

The search committee has interviewed several candidates this week, including Tim Grgurich, Nevada-Las Vegas assistant coach, and Penn State assistant Tim Loomis.

"It's nice to have an AD for the coach to meet," Murray said. "If the new coach does not know who the AD will be, he might have some misgivings.["]

"Now we have an AD who has respect around the country."

Colleary is a graduate of Fordham University.

He served as head football coach, assistant director of athletics and associate director of athletics at Iona College in New Rochelle, N.Y., during the late 1970s and early 1980s.

Appellant's Complaint, Exhibit B. Appellant believes that the statement "[n]ow we have an AD who has respect around the country", which appears to be attributed to President Murray, is capable of defamatory meaning. We disagree.

A publication is defamatory if it tends to blacken a person's reputation or expose him to public hatred, contempt, or ridicule, or injure him [or her] in his [or her] business or profession. [Also,] [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 to deter third persons from associating or dealing with him.

Agriss v. Roadway Express, Inc., 334 Pa.Super. at 305, 483 A.2d at 461. Accord Baker v. Lafayette College, 516 Pa. at 296, 532 A.2d at 402; Thomas Merton Center v. Rockwell International Corp., 497 Pa. at 464, 442 A.2d at 215; Corabi v. Curtis Publishing Co., 441 Pa. at 441-442, 273 A.2d at 904; Neish v. Beaver Newspapers, Inc., 398 Pa.Super. at 591, 581 A.2d at 621; Dobson by Dobson v. WBRE- TV, Inc., 347 Pa.Super. at 615, 500 A.2d at 1227; Zartman v. Lehigh County Humane Society, 333 Pa.Super. at 250, 482 A.2d at 268. Further, a communication is defamatory if it ascribes to another conduct, character or a condition that would adversely affect his or her fitness for the proper conduct of his or her lawful business, trade or profession. Thomas Merton Center v. Rockwell International, Corp., 497 Pa. at 466, 442 A.2d at 216; Dougherty v. Boyertown Times, 377 Pa.Super. at 473, 547 A.2d at 783; Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. at 260, 489 A.2d at 1368.

In determining whether a communication is defamatory, the court must consider

the effect the [entire] article is fairly calculated to produce[ ] [and] the impression it would naturally engender[ ] in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same significance that...