author: OLSZEWSKI, Judge: CIRILLO, Judge,

text:
    489 A.2d 1364
    C. Ivan GORDON, D.O., Appellant, v. LANCASTER OSTEOPATHIC HOSPITAL ASSOCIATION, INC.; Professional Staff of Lancaster Osteopathic Hospital; Berel B. Arrow, D.O.; Norman M. Axelrod, D.O.; Joseph Gordon; G. Richard Hartz, D.O.; Seymour S. Kilstein, D.O.; Robert C. Scott, D.O.; and Lewis M. Yunginger, D.O., Deceased and his successor, Ethel M. Yunginger, Executrix, Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1984.
    Filed Feb. 13, 1985.
    Reargument Denied April 19, 1985.

      Thomas B. Schmidt, III, Harrisburg, for appellant.
    Thomas E. Brenner, Harrisburg, for Lancaster, appellees.
    Jack M. Mumford, Harrisburg, for Arrow, appellee.
    Michael M. Badowski, Harrisburg, for Hartz, appellee.
    Before CIRILLO, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This appeal follows an order sustaining appellees’ preliminary objections in the nature of demurrers and dismissing counts 1 through 16, inclusive, of the complaint.

Appellant, C. Ivan Gordon, D.O., practiced as a pathologist at the Lancaster Osteopathic Hospital (“LOH”) from March of 1976 until October of 1980. From July 1, 1978 until June 30, 1980, appellant was employed by LOH; the terms of employment were defined by a written contract, renewable annually for a one year term. On April 29, 1980 appellee Joseph Gordon, Executive Director of LOH, notified appellant of the hospital’s intent not to renew the contract. On October 31, 1980, appellant delivered a letter of resignation to Dr. Gordon, effective as of that date.

This action arose as a consequence of a series of letters written by appellees Berel B. Arrow, D.O., Norman M. Axelrod, D.O., and G. Richard Hartz, D.O. to the Executive Director, the President of the Medical Staff and members of the Board of Directors of LOH in the early spring of 1980. These letters stated in pertinent part:

[W]e are totally unhappy and would like to present a vote of no confidence in Dr. Ivan Gordon. We all feel that we lack trust in the reporting of Dr. Gordon. We feel that the Pathology Department should be stronger as the institution grows. At this point, we would not like to go into absolute detail, but just inform you of the above opinion.

Letter of February 14, 1980. Reproduced record at 72a.

[T]he department concludes that because of the difficulty in communication and lack of confidence in Dr. Ivan Gordon’s work, that we regretfully recommend to you that under no circumstances shall Dr. Ivan Gordon accede the chairmanship of the department of Pathology at the Lancaster Osteopathic Hospital, and we further feel that attempts at recruitment of a pathologist should be actively carried out by the institution.

Letter of March 7, 1980. Reproduced record at 73a.

On March 10, 1980 a letter from Dr. Hartz to the Executive Board stated: “A resolution of no confidence in the above individual was passed by a unanimous vote.” Reproduced record at 74a. On October 10, 1980 a letter from Dr. Arrow to the Grievance and Ethics Committee stated: “... Dr. Gordon’s attitude and performance over the past several years warrants our opinion. We still feel that a vote of ‘no confidence’ is indicated.” Reproduced record at 83a.

Appellant alleges that these letters and other communications to the Executive Board were written in retaliation for his attempts to improve the quality of medical care provided by LOH. In the fall of 1979, appellant, as part of his duties as Chairman of the Professional Development Committee had gained approval of a plan to increase the number of specialists at LOH over a period of five years. Appellant charges that appellee-physicians resisted implementation of that plan based upon fears of increased competition among specialists at LOH. He further contends that appellee-physicians were fearful of and disturbed by his accurate and proper surgical tissue and autopsy reports which documented appellee-physicians’ “improper medical procedures and the substandard care provided to their patients.” Reproduced record at 14a.

Appellant’s complaint levels seventeen charges including counts in libel and slander, intentional interference with employment, intentional interference with future economic opportunities, wrongful termination, violation of common law and procedural due process, corporate negligence, intentional infliction of emotional distress, restraint of trade, civil conspiracy, and a claim for breach of contract. Following appellees’ preliminary objections in the nature of demurrers, the court below dismissed all counts now before us. This appeal follows.

Appellant raises nine issues in this appeal. We address them seriatim. First, appellant argues that the lower court erred in finding the publications not defamatory as a matter of law. We hold that the communications were not capable of a defamatory meaning.

On appeal from an order sustaining preliminary objections in the nature of demurrers, this Court is concerned only with determining the legal sufficiency of appellant’s complaint. Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969). We must confine our analysis to the complaint and decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Id.; D’Antona v. Hampton Grinding Wheel, 225 Pa.Super. 120, 310 A.2d 307 (1973).

We begin our analysis with recognition that a complaint alleging defamation should not be dismissed upon a preliminary objection in the nature of a demurrer unless the court is certain that the communication is incapable of bearing a defamatory meaning. Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. 427, 389 A.2d 1197 (1978). The court, in making this determination, must accept as true all well-pleaded material facts alleged in the complaint, as well as all inferences reasonably deducible therefrom. Id. Under the circumstances of this case, we recognize that a communication is defamatory which “ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession.” Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 463, 442 A.2d 213, 216 (1981), cert. denied 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982), quoting Restatement (Second) of Torts § 573 (1977). The comment to section 573 elaborates:

The imputation must be of such a character as to disparage the other in his business, trade, profession or office or tend to harm him in it____ When peculiar skill or ability is necessary, an imputation that attributes a lack of skill or ability tends to harm the other in his business or profession.

Restatement (Second) of Torts § 573, comment (c) (1977).

If the court has any doubt that the communication is defamatory, then the issue must be given to the jury for them to determine whether the defamatory meaning was understood by the recipient. Vitteck, 256 Pa.Super. at 431, 389 A.2d at 1199. The court must be guided by consideration of the expertise and knowledge of those to whom the publication is circulated, and by consideration of the effect it is fairly calculated to produce. Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). “The test is ... the impression it would naturally engender in the minds of the average persons ... among whom it is intended to circulate.” Id., 441 Pa. at 447, 273 A.2d at 907 (citation omitted). Here, those ‘average persons’ are appellant’s fellow physicians and the professional community at LOH, particularly persons involved with personnel decisions. Even where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, the issue must proceed to the jury. Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981); Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980).

We agree with the lower court which held that the words complained of by appellant bear no reasonable interpretation which would render them defamatory. The phrases “a vote of no confidence”, “lack of trust in the reporting ability of [appellant]”, “lack of confidence in [appellant’s] work”, and “[appellant’s] attitude and performance over the past several years ... [indicates] ... a vote of ‘no confidence’ ”, if believed, do not impute a charge of incompetency or unfitness. Compare Miller v. Hubbard, 205 Pa.Super. 111, 207 A.2d 913 (1965) (letter describing transaction in which plaintiff was not involved held to state cause of action in defamation); Agency Services, Inc. v. Reiter, 513 F.Supp. 586 (E.D.Pa.1981) (letter imputing dishonesty); Rannels v. S.E. Nichols, Inc., 591 F.2d 242 (3d Cir.1979) (words imputing fraud); Altoona Clay Products v. Dun & Bradstreet, 367 F.2d 625 (3d Cir.1966) (publication imputing insolvency).

We agree with the court below that, even under the assumption that appellees were possessed of the motives and malice towards appellant as alleged, the letters state no more than in the most general terms that appellees, speaking for their departments, lacked confidence in appellant’s professional ability and could not recommend that his contract be renewed. As stated by the lower court, appellees “cunningly or unwittingly stopped short of committing acts susceptible of defamatory meaning.” Lower court opinion at 10.

We believe that the only reasonable interpretation of these letters is that they are expressions of opinions. Opinion without more is not actionable libel. Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962); see also Restatement (Second) of Torts § 566 (1977) (a statement in the form of an opinion is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion) adopted in Braig v. Field Communications, 310 Pa.Super. 569, 456 A.2d 1366 (1983). While the record shows that appellees specifically refused to elaborate on the basis of their opinion in response to a request from the Executive Board, we cannot say, as a matter of law, that the letters imply undisclosed defamatory facts.

Further, our court has held that communications which may annoy or embarass a person are not sufficient as a matter of law to create an action in defamation. Bogash; Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980); Scott-Taylor, Inc. v. Stokes, 425 Pa. 426, 229 A.2d 733 (1967) (plaintiff must have suffered that kind of harm which has grievously fractured his standing in the community). We must conclude, after review of the context, identity of the parties and the context of the communications that the letters were not defamatory.

Appellant next argues that the lower court erred in holding that his claim in defamation against Joseph Gordon was insufficient as a matter of law. The letter complained of requested that appellant return books, keys and reimburse LOH for personal telephone calls. Reproduced record at 87a. Appellant argues that these requests suggest that he is a thief. In light of the analysis above, we agree with the lower court that the letter bears no reasonable defamatory interpretation.

Appellant next alleges that the lower court erred in holding that his complaint in intentional interference with prospective contractual relations was insufficient as a matter of law. We agree.

Our courts have recognized that a cause of action may exist for interference with prospective contractual relations. Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971) quoting Restatement of Torts § 766. Glenn delineated the elements of this tort which must be present to state a sufficient cause of action: the complaint must show a prospective contractual relation between appellant and LOH; the purpose or intent to harm appellant by preventing the relationship from occurring; the absence of privilege or justification on the part of appellees; the occurrence of actual harm or damage to appellant as a result of appellees’ conduct. Glenn, 441 Pa. at 479-80, 272 A.2d at 898; see also Adler, Barish, Daniels, Levin, etc. v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978) (adopting Restatement (Second) Torts § 766 (1977)).

In the instant case, the complaint alleges that, but for the communications to the Executive Board, appellant had every expectation of renewal of his contract. Reproduced record at 21a, 25a, 27a, 30a, 33a-34a, and 37a. The complaint further alleges that the communications were intended to harm appellant by preventing his renewal of contract with LOH.

As to the absence of justification or privilege for the communications, appellant, in counts 2-5 of the complaint, has alleged that the letters were defamatory. While we today hold that the letters, as a matter of law, do not sustain a cause of action in libel, we nevertheless believe that substantial questions have been raised which may at trial negate any asserted justification or privilege. Appellant argues that the letters were unjustified in that his work at all times was properly performed. Reproduced record at 13a. Appellant has raised a question of fact as to whether the letters were privileged, in light of the censor of appellees by the Medical Staff Executive Committee. Reproduced record at 16a. Further, appellant alleges that, under the Medical Staff Constitution and By-laws, “individual physicians at the department level do not have the responsibility or legal function to review the professional abilities of other professional staff members____” Id. These allegations raise questions as to the existence and scope of any privilege which must go to the jury as finder of fact. Compare Burke v. Triangle Publications, Inc., 225 Pa.Super. 272, 302 A.2d 408 (1973) (issue whether alleged defamatory communication is within scope of privilege is question of fact). Finally, appellant has alleged lost wages as actual harm resulting from the interference. Therefore, while expressing no view as to the merits of the claim, we hold that preliminary objections as to counts 8-11 were improperly sustained.

Appellant next alleges that the lower court erred in dismissing his claim for violation of procedural due process. We agree with the court below that none of appellant’s rights of due process were violated. The employment contract provided for compulsory arbitration, of which appellant chose not to avail himself. That arbitration would have provided appellant with full due process protection. Instead, appellant chose voluntarily to terminate his employment with LOH. See Chowdhury v. Reading Hospital and Medical Center, 520 F.Supp. 134 (E.D.Pa.1981), rev’d on other grounds, 677 F.2d 317 (3d Cir.1982).

Appellant next alleges that the lower court erred in dismissing his claim for violation of his right to continued employment at LOH. We agree with the court that, absent contractual or statutory provisions to the contrary, an employee has no legal recourse against his employer for dismissal unless the dismissal in some way offended a manifest public policy. See Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). We note that appellant’s brief presents an argument based in public policy. We are not at liberty to consider that argument insofar as our review is limited to the content of the complaint. Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969); D’Antona v. Hampton Grinding Wheel, 225 Pa.Super. 120, 310 A.2d 307 (1973).

Appellant next alleges that the lower court erred in dismissing his action in negligence against LOH for its failure to insure a fair procedure as required by its employment contract, the staff by-laws and state law. We hold that the count was properly dismissed. While we recognize that this count pleads a cause of action separate from appellant’s claim under due process, appellant’s failure to avail himself of proffered arbitration procedures persuades us that dismissal was correct.

Appellant next alleges that the lower court erred in dismissing his action for outrageous conduct and intentional infliction of emotional distress. We hold that the count was properly dismissed. Recovery for intentional infliction of emotional distress will be allowed where there is conduct “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society”. Restatement (Second) of Torts § 46, comment (d) (1977); see Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981) (altering medical records to impute criminal acts); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir.1979) (reckless diagnosis of fatal disease); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) (mishandling of corpse). The publication of letters of ‘no confidence’, as a matter of law, do not rise to this level of atrocity.

Appellant next alleges that the lower court erred in dismissing his action for conspiracy in restraint of trade. We agree with the court below that this count was properly dismissed. Appellant was free to seek employment at any other hospital or medically related institution following his termination of employment at LOH.

Finally, appellant alleges that the lower court erred in dismissing his actions for conspiracy to defame and conspiracy to interfere with contractual relations. In light of our holding that the letters were incapable of any reasonable defamatory meaning, the action as to conspiracy to defame must fall.

We reverse the order of the lower court dismissing count 7 of the complaint, alleging a conspiracy to interfere with contractual relations. For purposes of this analysis we incorporate our discussion, supra, of the appellant’s cause of action in interference with prospective contractual relations.

A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by an unlawful means or for an unlawful purpose. A conspiracy becomes actionable when some overt act is done in pursuance of the common purpose or design held by the conspirators and actual damage results.

Baker v. Rangos, 229 Pa.Super. 333, 351, 324 A.2d 498 (1974) (citations omitted).

In the instant case, taking all facts pleaded in the complaint as true, appellant has alleged that the letters were written as the product of combined action of the physicians for the unlawful purpose of interfering with his prospective contractual relations. Appellant alleged $1,300,000 in actual damages. Therefore, sufficient facts have been alleged to allow count 7 of the complaint to proceed to trial. We cannot, at this point, accept appellees’ theory that a conspiracy cannot occur in the context of the ‘single entity’ of a hospital and its medical staff. See Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa.1976); see also Buckner, M.D. v. Lower Florida Keys Hospital District, 403 So.2d 1025 (Fla.App.1981). In the instant case, appellant has alleged that appellees did not have the responsibility or legal function to review the professional abilities of other professional staff members under the medical staff constitution and by-laws. Reproduced record at 16a. This allegation persuades us that the issue must go to trial.

In conclusion, the lower court’s order as to counts 1-6, 12, and 13-16 is affirmed. The order as to counts 7-11 is reversed.

The order is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

BECK, J., concurs in the result.

CIRILLO, J., files a concurring and dissenting opinion.

CIRILLO, Judge,

concurring and dissenting:

I respectfully must disagree with the conclusion that the words contained in the letters of Drs. Arrow, Axelrod, Hartz, and Yunginger were incapable of a defamatory meaning. I would reinstate counts 1 through 5 of appellant’s complaint sounding in defamation.

Defendant Arrow’s letter stated, in part:

At an official meeting of the Department of Internal Medicine, it was a unanimous decision upon the following matter; we are totally unhappy and would like to present a vote of no confidence in Dr. Ivan Gordon.
We all feel that we lack trust in the reporting of Dr. Gordon. We feel that the Pathology Department should be stronger as the institution grows.

The first paragraph of defendant Axelrod’s letter read:

At the February meeting of the surgical staff the continual ongoing serious problem of the present junior pathologist was discussed in detail by my department. The department concludes that because of the difficulty of communication and the lack of confidence in Dr. Ivan Gordon’s work, that [sic] we regretfully recommend to you that under no circumstances shall Dr. Ivan Gordon accede the [sic] chairmanship of the department of Pathology at the Lancaster Osteopathic Hospital, and we further feel that attempts at recruitment of a pathologist should be actively carried out by the institution.

Defendant Hartz’s letter said: “At a department head meeting held Tuesday, March 4, 1980 we discussed the service provided by and the relationship with Dr. C. Ivan Gordon, Department of Pathology. A resolution of no confidence in the above individual was passed by a unanimous vote.”

A fourth letter signed by defendants Arrow and Yunginger also expressed “no confidence” in Gordon’s “attitude” and “performance.”

I should think that no citation of authority beyond that provided by the majority is necessary to demonstrate that these imputations are capable of a defamatory meaning. The majority states:

We begin our analysis with recognition that a complaint alleging defamation should not be dismissed upon a preliminary objection in the nature of a demurrer unless the court is certain that the communication is incapable of bearing a defamatory meaning. Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. 427, 389 A.2d 1197 (1978). The court, in making this determination, must accept as true all well-pleaded material facts alleged in the complaint, as well as all inferences reasonably deducible therefrom. Id. Under the circumstances of this case, we recognize that a communication is defamatory which “ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession.” Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 463, 442 A.2d 213, 216 (1981), cert. denied 457 U.S. 1134 [102 S.Ct. 2961, 73 L.Ed.2d 1351] (1982), quoting Restatement (Second) of Torts § 573 (1977). The comment to section 573 elaborates:
The imputation must be of such a character as to disparage the other in his business, trade, profession or office or tend to harm him in it____ When peculiar skill or ability is necessary, an imputation that attributes a lack of skill or ability tends to harm the other in his business or profession.
Restatement (Second) of Torts § 573, comment (c) (1977).
If the court has any doubt that the communication is defamatory, then the issue must be given to the jury for them to determine whether the defamatory meaning was understood by the recipient. Vitteck, 256 Pa.Super. at 431, 389 A.2d at 1199. The court must be guided by consideration of the expertise and knowledge of those to whom the publication is circulated, and by consideration of the effect it is fairly calculated to produce. Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). “The test is ... the impression it would naturally engender in the minds of the average persons ... among whom it is intended to circulate.” Id., 441 Pa. at 447, 273 A.2d at 907 (citation omitted). Here, those ‘average persons’ are appellant’s fellow physicians and the professional community at LOH, particularly persons involved with personnel decisions. Even where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, the issue must proceed to the jury. Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981); Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980).

At 261-262.

Without reading more into the letters than their plain wording imports, one could easily determine that: 1) Arrow's letter imputes that the internal medicine department did not trust Gordon’s capability to report pathology department findings, and felt that Gordon’s continued presence would therefore be inconsistent with a strong pathology department; 2) Axelrod’s letter implies that Gordon was unfit to be chairman of the pathology department because the department of surgery “lack[ed] ... confidence in Dr. Ivan Gordon’s work”; 3) the other two letters indicate that the members of two medical departments at the hospital had no confidence in Gordon’s “service” and “performance.” Surely these expressions can be understood to imply that Dr. Gordon’s actual work performance showed him to be unfit to practice his business or calling as a pathologist at the hospital and lacking in the professional competence required for the chairmanship of the pathology department. So understood, the words clearly bore the potential to impair Gordon’s “ ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence” in which his colleagues and employers held him. Zelik v. Daily News, supra, 288 Pa.Super. at 281, 431 A.2d at 1049, quoting Vitteck, supra, 256 Pa.Super. at 432, 389 A.2d at 1200 (quoting W. Prosser, Handbook of the Law of Torts § 111, at 739 (4th ed. 1971)) (emphasis mine). In fact, Gordon alleges that the words had exactly such a damaging effect on his professional reputation, with the ultimate result that the Lancaster Osteopathic Hospital refused to renew his contract.

The majority holds that the “only reasonable interpretation of these letters is that they are expressions of opinion.” At 263. Expressions of opinion, however, can support an action for libel if they imply defamatory allegations of fact. Braig v. Field Communications, 310 Pa.Super. 569, 456 A.2d 1366 (1983); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1981); Restatement (Second) of Torts § 566 (1977); cf. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983) (not actionable to characterize plaintiff as “anti-Semitic” in letter to his attorney). Even if the only reasonable way to interpret the defendants’ letters is as expressions of opinion, I think it obvious that the particular expressions used can be read reasonably to imply defamatory allegations of fact, namely Dr. Gordon’s unreliable performance as a pathologist and deficiency in the objective qualifications needed in the position of department chairman.

Moreover, under any interpretation the letters do not consist entirely of opinion; they profess to report as fact that the collective members of various medical departments passed votes of no confidence in Dr. Gordon. The Doctor alleges that the letters were false, and accordingly we must treat this “fact” recited in the letters as false.

The allegedly defamatory words used in the letters are virtually indistinguishable from those found actionable in Miller v. Hubbard, 205 Pa.Super. 111, 207 A.2d 913 (1965), where an insurance claims adjuster wrote a letter saying that based on the adjuster’s past experience with a contractor he had “no confidence” in the contractor’s opinion about the cause of damage to a building. Obviously such well-chosen “expressions of opinion” tend to imply that they are based on defamatory facts, and can seriously damage a person’s business reputation if believed.

The following quote from Miller is apropos to the majority’s observation that Arrow, Axelrod, Hartz, and Yunginger “cunningly or unwittingly stopped short of committing acts susceptible of defamatory meaning” (at 262, quoting trial ct. op.):

To render a defamatory statement actionable, it is not necessary that the charge be made in a direct, positive and open manner. If the words used, when taken in their ordinary acceptation, convey a degrading imputation, no matter how indirectly, they are libelous, and it matters not how artfully their meaning is concealed or disguised. 33 Am.Jur. (Libel and Slander) Sec. 9, page 43.

205 Pa.Super. at 115, 207 A.2d at 916.

The mere susceptibility of a statement to an innocuous interpretation does not defeat a cause of action in libel. Raffensberger v. Moran, 336 Pa.Super. 97, 485 A.2d 447 (1984); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984). Especially in ruling on preliminary objections in the nature of a demurrer, the court should not decide that words are nondefamatory as a matter of law unless it is certain that a nondefamatory meaning is the only reasonable interpretation to be given to the words. Zartman v. Lehigh County Humane Society, 333 Pa.Super. 245, 482 A.2d 266 (1984).

I cannot agree that the only rational interpretation of the defendants’ letters is to view them as innocuous and nondefamatory expressions of opinion. Giving appellant the benefit of reasonable inferences from well-pleaded facts to which he is entitled on appeal from a demurrer, see Douglas v. Schwenk, 330 Pa.Super. 392, 479 A.2d 608 (1984), I find the letters to be capable of a defamatory meaning.

I deem it appropriate to consider, however, whether the trial court’s dismissal of counts 1-5 of the complaint might be sustained on the basis of privilege. Each defendant, in preliminary objections, raised the defense of privilege under the Peer Review Protection Act of July 20, 1974, P.L. 564, No. 193, § 3, 63 P.S. § 425.3. The court declined to rule on the issue of privilege, finding it inappropriate for resolution on preliminary objections. Appellees Arrow and Hartz do not pursue the claim of privilege on appeal; the remaining appellees advert to the theory of privilege enunciated in DeLuca v. Reader, 227 Pa.Super. 392, 323 A.2d 309 (1974) (allocatur denied), a theory not specifically presented to the trial court. Principles of waiver, however, cannot preclude us from affirming dismissal of the defamation counts on the ground that appellees’ letters were privileged. It is well settled that we may affirm the trial court’s decision if the result is correct on any legal ground, without regard to the grounds relied on by the trial court. E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 381 A.2d 441 (1977); Perri v. Broad Street Hospital, 330 Pa.Super. 50, 478 A.2d 1344 (1984).

There are basically two classes of privilege which may defeat liability in an action for defamation: conditional privilege and absolute privilege.

A conditional, qualified privilege extends to defamatory communications made upon a proper occasion, from a proper motive, and based on reasonable or probable cause. Biggans v. Foglietta, 403 Pa. 510, 170 A.2d 345 (1961). The constitutional privilege stemming from the First Amendment is a type of conditional privilege since it may be lost if the publisher acts with actual malice.

But see Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984) (under United States Supreme Court interpretations of constitutional privilege, common law conditional privileges “have lost their significance”) (dictum).

One who publishes within the scope of an absolute privilege is immune from liability even though he acts from an improper motive, with actual malice, and without reasonable or probable cause. Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963). A publisher acting under an absolute privilege loses its protection only if he exceeds its scope by publishing to unauthorized parties. See Agriss v. Roadway Express, supra.

“[A]bsolute privileges” are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for miscon duct in their position. Therefore the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor.

Restatement (Second) of Torts, Ch. 25, at 243 (emphasis added). For an enumeration of the absolute privileges generally recognized, see id. §§ 583-592A.

It is a question of law whether privilege applies in a given case, but a question of fact for the jury whether a privilege has been abused. Montgomery v. City of Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958).

When the legal question of privilege is interlaced with factual questions concerning its abuse, the issue of privilege generally cannot be resolved as a matter of law. The defense of conditional privilege in particular nearly always calls for factual determinations about the defendant’s motives and mental state in publishing a defamation. We have thus held that privilege to defame is an affirmative defense which may not be decided on preliminary objections, but must be raised as “new matter” in the defendant’s answer. Barber v. Lynch, 275 Pa.Super. 333, 418 A.2d 749 (1980); see Pa.R.C.P. 1030.

However, as we have just seen the policy behind absolute privilege is to preclude not only liability for defamation, but also the risk and expense of defending suit. Restatement, supra; see also Montgomery v. Philadelphia, supra. Accordingly, the question of absolute privilege may be raised and decided on preliminary objections where the defendant’s entitlement to an absolute privilege appears on the face of the complaint so as to preclude the plaintiff’s right of action as a matter of law. See, e.g., Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984). Accord Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968); DeSantis v. Swigart, 296 Pa.Super. 283, 442 A.2d 770 (1982); cf. Burke v. Triangle Publications, Inc., 225 Pa.Super. 272, 302 A.2d 408 (1973) (allocatur denied) (qualified, constitutional privilege not properly raised in preliminary objections).

With those principles in mind, we should examine the privileges of arguable application to the present context, to determine whether any such privilege would furnish grounds for sustaining appellees’ objections as a matter of law.

The Peer Review Protection Act confers immunity in the following terms:

(a) Notwithstanding any other provision of law, no person providing information to any review organization shall be held, by reason of having provided such information, to have violated any criminal law, or to be civilly liable under any law, unless:
(1) such information is unrelated to the performance of the duties and functions of such review organization, or
(2) such information is false and the person providing such information knew, or had reason to believe, that such information was false.

63 P.S. § 425.3(a). “Review organization” as defined by the Act clearly would include the officers of Lancaster Osteopathic Hospital to whom appellees disseminated their letters. See id. § 425.2. The privilege provided by the Act is therefore of primary relevance to this case; it is, however, a conditional privilege which is lost if the person participating in peer review knowingly disseminates false information.

Dr. Gordon alleges that the information contained in appellees’ letters was false and that appellees knew it to be false. If so, peer review immunity would be lost by virtue of section 425.3(a)(2). Consequently, the Act does not provide grounds for upholding the judgment rendered for appellees on preliminary objections.

The only species of absolute privilege appellees can point to as possibly immunizing their action is the privilege pronounced in DeLuca v. Reader, supra, protecting certain communications between employers and employees arising in the context of a labor dispute. Appellees’ letters to the officers of Lancaster Osteopathic Hospital communicated information in the context of what might be characterized as a “labor dispute” concerning Dr. Gordon. However, even a superficial analysis demonstrates that appellees cannot claim absolute privilege under the rationale of DeLuca.

In DeLuca this Court considered national and state policies favoring private resolution of disputes between employers, employees, and unions, and held that

[Njotices of dismissal for cause which are contemplated by a collective bargaining agreement and which are published by the employer only to those with a legitimate interest in the subject matter may not be made the subject of an action in libel, regardless of whether the allegations of cause are true or false and regardless of the actual motive behind the dismissal.

227 Pa.Super. at 399-400, 323 A.2d at 313, quoting Joftes v. Kaufman, 324 F.Supp. 660, 662 (D.D.C.1971) (quoting General Motors Corp. v. Mendicki, 367 F.2d 66, 71 (10th Cir.1966)). In Agriss v. Roadway Express, supra, we extended the DeLuca privilege by logical implication to employee warning notices contemplated by a collective bargaining agreement.

Crucial to the DeLuca-Agriss privilege is not the mere fact that libelous communications have occurred in the context of a labor dispute, but that the communications be transmitted in notices specifically authorized by a collective bargaining agreement between an employer and a union. Thus, if a libel is engendered by utilization of the regular procedures mandated under a collective bargaining agreement, important considerations of labor policy dictate that the dispute be resolved under the agreement and not by resort to the state courts.

Outside the class of cases represented by DeLuca and Agriss, this State does not recognize an absolute privilege to defame in the context of a labor dispute. Indeed, the type of privilege generally applicable to labor-related defamation actions is conditional, and is closely related to the constitutional privilege protecting the First Amendment right to free speech. See Old Dominion Branch No. 496, National Assn. of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Raffensberger v. Moran, supra; see also Wilson v. Benjamin, 332 Pa.Super. 211, 481 A.2d 328 (1984); see generally Annots., 60 A.L.R.3d 1041, 1080 (1974).

Thus, even were we to find, by analogy, a “labor dispute” between Dr. Gordon and his peers at the hospital, we could not fashion an absolute privilege that would entitle appellees to judgment on this appeal. I therefore dissent from the decision to affirm dismissal of counts 1 through 5 of the complaint.

      . Count 17 was voluntarily discontinued by appellant. Appellant’s brief at 1.

      . The contract was renewed for one year on September 25, 1979. Reproduced record at 70a.

      . Appellees mistakenly assert that the communications were privileged, citing to the Peer Review Protection Act, Act of July 20, 1974, P.L. 564, No. 193. The lower court correctly found the defense of privilege inapplicable to the resolution of preliminary objections. Had the issue proceeded to trial, the court would have determined whether the privilege applied, and the jury would have determined whether the scope of the privilege were abused. Burke v. Triangle Publications, Inc., 225 Pa.Super. 272, 302 A.2d 408 (1973).

      . Our holding today demands a more stringent burden of production by appellant than that adopted by the federal courts pursuant to Fed.R.Civ.P. 56(c).
      It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts ... [or] ... what the intentions of the parties was as shown by the facts____ Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.

        S.J. Groves and Sons v. Ohio Turnpike Commission, 315 F.2d 235 (6th Cir.1963) cert. denied 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963); see also Rannels v. S.E. Nichols, Inc., 591 F.2d 242 (1979). We therefore reject the reasoning in Moyer v. Mid-Penn Bank, 48 Northumberland L.J. 182 (1976) (held, where defendant denies all averments of libel, legal issues are raised per se which can only be determined fairly by trial of the case).

      . Reproduced record at 72a, 83a.

      . Appellant’s allegations as to defamatory oral communications fail for want of specificity as to the content of the statements and as to the identity of the persons receiving the alleged communications. See Raneri v. Depolo, 65 Pa.Commw. 183, 441 A.2d 1373 (1982); Gross v. United Engineers and Constructors, Inc., 224 Pa.Super. 233, 302 A.2d 370 (1973).

      . Restatement of Torts § 766 states "... one who, without a privilege to do so, induces or otherwise purposely causes a third person not to ... (b) enter into or continue a business relationship with another is liable to the other for the harm caused thereby." Id. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Yaindl v. Ingersoll Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980).

      . By letter of April 29, 1980 LOH offered to meet with appellant under the “resolution of disputes” provision of his contract. Reproduced record at 75a.

      . We note that the lower court did not address the 'single entity’ theory.

      . I find unpersuasive any attempt to distinguish Miller on the ground that there the contractor was not involved in the transaction referred to in the defamatory letter. The letter defamed Miller by imputing that his unreliability on past occasions warranted a lack of confidence. In any event, the issue in a defamation action is not whether the plaintiff was somehow "involved" in the transaction underlying the defamatory communication, but whether the communication itself is false and defamatory.

      . Additionally, I dissent from affirmance of the dismissal of count 14, and would reinstate that claim. Count 14 alleges, in paragraph 161, that appellant’s termination from employment violated public policy. Neither the trial court nor the majority has addressed appellant’s public policy argument on the merits, and yet both courts have inexplicably denied the claim. I find that the legal merit of the public policy argument cannot be determined on the present state of the record, and would remand on count 14 for further proceedings. I concur in the majority’s judgment insofar as it reverses dismissal of counts 7-11 of the complaint alleging interference with contractual relations; and insofar as it affirms dismissal of counts 6, 12-13, and 15-16 of the complaint.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    489 A.2d 1378
    COMMONWEALTH of Pennsylvania v. John R. COLVIN, Appellant.
    Superior Court of Pennsylvania.
    Argued July 31, 1984.
    Filed Feb. 22, 1985.
    Reargument Denied April 19, 1985.

      Joseph A. Massa, Jr., Public Defender, Warren, for appellant.
    Richard A. Hernán, Jr., District Attorney, Warren, for Commonwealth, appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

On August 21, 1981, the Appellant threw a stone through a window at the residence owned and occupied by Charles and Donna Adams and in which Elizabeth and Frederick R. Adams, their children also resided. That stone broke the window and caused damage of some minor amount to the residence.

Subsequently, on August 28, 1981, at approximately 1:20 a.m. Charles and Donna Adams were asleep in their bedroom, Elizabeth Adams was in the bathroom and Frederick R. Adams was in the den watching television. At that time the Appellant threw another stone at the house, striking the side of the house making a noise which Frederick Adams heard but which no one else in the household heard. Frederick Adams then proceeded to the second floor to inform his family that someone had thrown a stone again at the house, waking his mother and father and calling this event to the attention of his sister.

Mrs. Donna Adams entered the hallway of the second floor to ask what happened and was told that someone had thrown a stone at the house. Upon hearing this news, she collapsed and died. As a result of these events, the Appellant was charged with two counts of criminal mischief and one count of involuntary manslaughter.

Following a non-jury trial, the Appellant was found guilty of both counts of criminal mischief and involuntary manslaughter and subsequently sentenced on the involuntary manslaughter charge to a period of incarceration of one to two years. It is from the sentence on the charge of involuntary manslaughter that the Appellant appeals.

The question simply stated is whether or not a person can be convicted of involuntary manslaughter when he' commits a criminal act, and another person dies after being told that the act was committed. We think not.

First, we note that although the Appellant filed written post trial motions in boiler plate form, the motions were filed before Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) and therefore the issues are properly preserved for Appellate review.

The trial court in its opinion sets forth the operative statute as 18 Pa.C.S.A. § 2504 which defines involuntary manslaughter:

“(a) General Rule. A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.”

The statute requires that the death be a direct result of the act of the defendant. In the instant case, it was clearly established that the act of throwing the stone and the noise that it caused were not heard or reacted to by the decedent. The testimony of Charles Adams, husband of the decedent, as found on pages 31 through 34 of the notes of testimony reveals that neither he nor his wife heard the noise since they were both asleep. Further, Mrs. Adams was still asleep when Mr. Adams heard his son coming up the stairs excitedly advising what happened. The testimony of Elizabeth Adams, the daughter, as found on pages 25 through 27 of the notes of testimony reveals that she did not hear the noise even though she was awake and in the bathroom on the second floor. She first became aware of the incident when she heard her brother call out that someone had thrown a stone.

Frederick R. Adams testified on pages 9 and 10 of the record that he ran up the stairs screaming, met his father in the hall and told him what happened and then told his mother what happened. Following that, Mrs. Donna Adams collapsed and died.

A seminal case dealing with the issue before us is Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961). Therein, the Supreme Court of Pennsylvania reversed the conviction for involuntary manslaughter for one of two participants in “drag race” when the co-racer was killed as a result of a collision between his vehicle and an on-coming truck. The court, speaking through Mr. Chief Justice Jones stated as follows:

“While precedent is to be found for application of the tort law concept of ‘proximate cause’ in fixing responsibility for criminal homicide the want of any rational basis for its use in determining criminal liability can no longer be properly disregarded. When proximate cause was first borrowed from the field of tort law and applied to homicide prosecutions in Pennsylvania, the concept noted as much more direct causal relation in producing the alleged culpable result than it does today. Proximate cause, as an essential element of a tort founded in negligence, has undergone in recent times, and still undergoing, a marked extension ... To persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of civil liability of defendants in tort actions for negligence would be to extend possible criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of a resultant death.” Commonwealth v. Root, supra, 403 Pa. at 574-575, 170 A.2d at 311.

Thus, the Supreme Court has specifically rejected a “proximate cause” analysis for involuntary manslaughter and rather relies upon the statute’s “direct cause” concept.

The prosecution’s reliance on Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 is, in our judgment, misplaced. In the Youngkin case, the defendant’s conviction of involuntary manslaughter was sustained. In that case the defendant, a physician, had recklessly and in a grossly negligent manner prescribed medication to one Barbara Fedder, a seventeen year old patient, which medication was a barbiturate. As a result of ingesting the medication while at a party, Miss Fedder died of asphyxiation from aspiration of the contents of her stomach due to the depression of her gag reflex. The depression of her gag reflex was caused by the medication she was taking. Therefore, in the Youngkin case, the action of the defendant, namely, prescribing a medication which the deceased ingested, was directly linked to the death.

Reference is also made to the case of Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974). Therein, a mother was convicted of involuntary manslaughter as the result of the deaths of her children. The mother had left her two children aged 3 years and 10 months home alone unattended and had wedged shut their bedroom door so that they could not leave the room. As a result, when a fire occurred, the children were not able to escape nor was help able to reach them and they perished. Here again, we have action by the accused that directly caused the deaths of the victims.

In the case at bar, the noise caused by the stone was not heard by the decedent. The stone caused property damage and the noise frightened Frederick Adams, and there the direct causal relationship ends.

Further, it is our view that the evidence is not sufficient to sustain a conviction in this case. The court below relied upon the testimony of Dr. Dickinson Lipphard, which is set forth in the trial court’s opinion as follows:

“On the information given to me as to what happened at the home, that the subject died of fright or some other intense emotion, whether it was fright or fear or just excitement, some intense emotional state was the cause of death.”

The trial court further points out that the factual history relied on by Dr. Lipphard was given to him by the coroner. Unfortunately, the factual history given to Dr. Lipphard upon which he bases his conclusion was incorrect. On page 60 of the notes of testimony, Dr. Lipphard testified as follows:

“Q. What specific facts—
A. What did they tell me?
Q. Yes.
A. Oh, they told me that somebody had thrown a rock through a window of a house where this — where the deceased was living, and that she had already retired, and they said the sound of this woke her up...”

Also, and on page 61 he gave testimony given as follows:

“Q. So, I understand this correctly, without trying to repeat your words, you say that you were told a rock was thrown through a window at this person’s home—
A. Un-huh.
Q. —and she was asleep—
A. Yes.
Q. —did the noise caused by the rock awaken her—
A. Yes.
Q. —in bed?
A. Right”

Dr. Lipphard’s assumed facts are not in keeping with the testimony of Mr. Adams and Frederick and Elizabeth Adams all of whom testified that Mrs. Adams was not awakened by the noise caused by the throwing of the rock. Since the underlying facts giving rise to Dr. Lipphard’s opinion have not been established in the record the Commonwealth has failed in meeting its burden of proof in this case. Even Dr. Lipphard admits that the death of Mrs. Adams was most unusual. (N.T. 62)

Our review of the record leads us to conclude that the conviction on the charge of involuntary manslaughter is against the weight of the evidence and is contrary to law.

Appellant was also convicted of two counts of criminal mischief, which convictions will stand. We therefore remand this case for resentencing on the two counts of criminal mischief.

Judgment of Sentence of Involuntary Manslaughter is vacated.

Jurisdiction relinquished.


author: ROWLEY, Judge:

text:
    489 A.2d 1381
    CHARTIERS VALLEY SCHOOL DISTRICT and Township of Scott, Appellants, v. VIRGINIA MANSIONS APARTMENTS, INC., Elias J. Hakim, Jr. and Janet R. Hakim, husband and wife, Robert O. Lampl, Trustee of Sunland Properties Trust, Appellees.
    Superior Court of Pennsylvania.
    Argued July 12, 1984.
    Filed March 15, 1985.

      Thomas J. Dempsey, Pittsburgh, for appellants.
    Benjamin B. Wechsler, Jr., Pittsburgh, for appellees.
    Before ROWLEY, TAMILIA and HESTER, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This appeal stems from a long-standing challenge to the tax assessment of improved real estate in Scott Township, Allegheny County. Plaintiff-appellants, Chartiers Valley School District (“District”) and the Township of Scott (“Township”), filed a Complaint in Equity against defendants-appellees, Virginia Mansions Apartments Inc., (“Corporation”), Elias and Janet Hakim, and Robert O. Lampl, as trustee of Sunland Properties Trust, at various times the record owners of the subject property. Appellants requested the imposition of a constructive trust on the property, the rescission of conveyances of portions of the property, and the issuance of an injunction enjoining further transfers. Before us, appellants question the trial court’s order sustaining defendants-appellees’ preliminary objections and dismissing the complaint with prejudice. The trial court’s order also struck the lis pendens indexed against the property. Specifically, appellants contend, the court erred in dismissing the complaint which, they argue, alleged fraud by the appellees in their attempt to avoid the payment of real estate taxes. After affording careful consideration to appellants’ arguments, we affirm.

HISTORY OF THE CASE

In February of 1974, the parties agreed that the 1975 assessment of the property owned by the Corporation would be set at $1,500,000.00. This stipulation acknowledged by appellee Elias Hakim, Jr., president and controlling stockholder of Virginia Mansions Apartments, Inc., received judicial approval on February 22, 1974 and was filed. Nonetheless, the Corporation appealed the 1975 assessment to the Board of Property Assessment, Appeals and Review of Allegheny County (“the Board”)- The Board reduced the assessment to $1,000,000.00. Seeking to enforce the settlement agreement as set forth in the stipulation, the District filed an appeal to the Court of Common Pleas of Allegheny County, at No. G.D. 75-17450. Declaring the Board’s reduction of the 1975 assessment null and void, the Honorable Michael J. O’Malley reinstated the 1975 assessment of $1,500,000.00 as agreed to in the stipulation. Judge O’Malley’s order, dated January 23, 1976, was affirmed on appeal to the Commonwealth Court. Scott Township Tax Assessment Case, 31 Pa.Commw. 505, 377 A.2d 826 (1977).

The Board also set the assessment for 1976 at $1,000,000.00. On April 4, 1978, Judge O’Malley remanded the case to the Board to determine the proper assessment for the triennial period beginning in 1976. Holding that the District had abandoned its claim, the Board, on remand, refused to alter the assessment. Consequently, on July 21, 1978, the District appealed the Board’s decision for 1976-1978 to the Court of Common Pleas. Although the Corporation moved to quash the appeal, the Honorable Joseph Del Sole, by order dated September 14, 1979, directed that the question of the appropriate assessment for the years 1976, 1977 and 1978 be listed for trial. On June 20, 1980, the Commonwealth Court affirmed the trial court’s order, on the basis of Judge Del Sole’s unpublished opinion. Virginia Mansions Apartments, Inc., Appeal, 52 Pa.Commw. 262, 415 A.2d 963 (1980). After initially granting allocatur, the Supreme Court, on July 2, 1981, dismissed Virginia Mansions’ appeal as improvidently granted. Chartiers Valley School District v. Board of Property Assessment, Appeals and Review, 494 Pa. 315, 431 A.2d 277 (1981).

THE COMPLAINT IN EQUITY

Pending re-evaluation, at trial, of the assessment for the years 1976 through 1979, the Complaint in Equity around which this appeal revolves was filed. Acknowledging that the Corporation had paid the real estate taxes due for these years, based on the Board’s assessment of $1,000,000.00, the District and Township sought therein to protect their interest in any additional taxes that would be owed as a result of an increase in the assessed value of the property.

In support of the request for equitable relief, appellants averred that on August 1, 1979, the Corporation conveyed to appellees, Elias and Janet Hakim, husband and wife, that part of the subject property upon which a restaurant had been erected. Although the assessed value of that parcel of real estate exceeded $88,000.00, the stated consideration for the transaction was $5,000.00. In addition, by agreement dated September 1, 1979, the Sunland Properties Trust was created. Funded initially with $20,000.00 from the Hakims, the trust was established for the benefit of five-named children of the Hakims. Appellee Robert O. Lampl, counsel for the Hakims, was named as trustee. On December 1, 1979, the Complaint alleged, the remainder of the subject property, assessed at $911,500.00, was conveyed to Lampl as trustee of the Sunland Properties Trust for $1.00, rendering the Corporation insolvent. That same day the Corporation was dissolved. The apartments held by the trust were subsequently converted into condominiums, and the leases and rents therefrom were assigned to Equibank, to secure payment of notes totalling $7,150,000.00 that had been issued to Lampl as trustee.

Maintaining that Elias Hakim, Jr., controls Lampl’s actions with respect to the real property conveyed to him as trustee by the Corporation, and that the Hakim family continues to have the beneficial use and enjoyment of the subject properties, the District and Township averred that the conveyances of the property and the creation of the trust were fraudulent, in that they were designed to place the corporate assets beyond the reach of its creditors, including plaintiffs-appellants. Thus, the municipalities contended, equitable intervention was necessary to safeguard their potential interest in additional tax revenues. Accordingly, plaintiffs-appellants requested that the conveyances to the Hakims and to Lampl as trustee be set aside, that any further transfers of the property be enjoined, and that a constructive trust upon all properties previously known as Virginia Mansions and now held by Hakim or Lampl as trustee be imposed.

On June 16, 1982, defendants-appellees filed preliminary objections in the nature of a demurrer. Alleging that the sole purpose of the plaintiffs’ action was the collection of taxes that had not yet been assessed, defendants argued that plaintiffs should be denied the equitable relief sought, given that adequate legal remedies were available under the taxing statutes and the Pennsylvania Business Corporation Law. 15 P.S. § 1001 et seq. Concomitantly, defendants requested that the lis pendens indexed against the property be stricken. Plaintiffs responded with preliminary objections, contending that defendants’ preliminary objections should be stricken for lack of conformity to law and rule of court. Following oral argument, the trial court, on August 27, 1982, sustained defendants’ preliminary objections and dismissed the Complaint with prejudice. This appeal followed.

APPLICABLE PRINCIPLES OF LAW

A preliminary objection in the nature of a demurrer admits all well-pleaded facts, as well as all reasonable inferences therefrom, and may not be sustained unless it is clear on the face of the pleading that the law will not permit the recovery sought. Aiken v. Radnor Tp. Bd. of Sup’rs., 83 Pa.Commw. 190, 476 A.2d 1383 (1984). Thus, any doubt as to whether such an objection should be sustained must be resolved against the moving party. DeSantis v. Swigart, 296 Pa.Super. 283, 442 A.2d 770 (1982). In granting defendants’ preliminary objections, the Honorable Emil Narick concluded that, in reality, this was a tax collection action. As such, plaintiffs were required to pursue the legal remedies available, absent a demonstration of their inadequacy, which was not made here. We agree.

Although the remedies requested by appellants are equitable in nature, the underlying action is a legal one. Plaintiffs-appellants sought the preservation of assets from which to satisfy their potential tax claim. Thus, this case is analogous to Derry Twp. v. S. Dist. v. Barnett C. Co., 332 Pa. 174, 2 A.2d 758 (1938). There the Derry Township School District requested, inter alia, that the taxpayer be permanently restrained from removing any buildings or equipment remaining on the subject property. As the Court noted,

Although a decree based on this prayer would not expressly order the payment of taxes, it is clearly an essential step in the process of collection. The suit is directed toward rendering the property amenable to the reach of the taxing authorities. As such, it must be regarded as a proceeding to collect taxes.

Id., 332 Pa. at 178, 2 A.2d at 760.

Pennsylvania law is clear: actions relating to the collection of taxes are statutory in nature. As Mr. Justice Brown stated in Schmuck v. Hartman, 222 Pa. 190, 70 A. 1091 (1908):

All taxation is statutory, and while it is the duty of every citizen to bear his just proportion of the burden of supporting national, state and local government, he cannot be compelled to do so, except in a way provided by a statute. Liability to pay taxes arises from no contractual relation between the taxable and the taxing power, and cannot be enforced by common-law proceedings unless a statute so provides.

Id., 222 Pa. at 195, 70 A. at 1092.

See also Urban Redev. Condemnation Case, 406 Pa. 6, 178 A.2d 149 (1961); Morrow Estate, 390 Pa. 422, 135 A.2d 913 (1957); Derry, supra. As such, equitable relief will be appropriate only where the statutory remedy is inadequate. Significantly, the adequacy of the legal remedy is not measured by the success or failure of a legal claim. Rather, in deciding whether a remedy is adequate, it is the remedy itself, and not its possible lack of success, that is the determining factor. Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978); Ragano v. Rigot, 25 Pa.Commw. 428, 360 A.2d 779 (1976). The fact that the statutory remedy may not be successful in realizing the fruits of a recovery at law, on account of the defendants’ insolvency, is not, of itself, a basis for equitable intervention. Willing, supra; Derry, supra. Thus, the mere fact that the collection of any additional taxes may be more difficult here, or that the taxpayer will be judgment proof, as alleged, does not warrant equitable intervention.

Appellants here attempted to resort to equity without first exhausting statutorily prescribed remedies, which would have adequately protected their interest in the payment of the potential tax bill, if timely followed.

STATUTORY REMEDIES

Chapter 25 of Pennsylvania’s General Municipal Law, 53 P.S. § 7101 et seq, is addressed to municipal claims and liens. 53 P.S. § 7101 et seq. As defined therein, “municipality” encompasses townships and school districts, such as appellants. Within this context, the word “taxes” refers to any county, city, borough, incorporated town, township, school, bridge, road or poor taxes. 53 P.S. § 7101. While the term “tax claim” thus refers to the claim filed to recover taxes, 53 P.S. § 7101, the phrase “municipal claim” has been statutorily defined as

(1) the claim arising out of, or resulting from, a tax assessed, service supplied, work done, or improvement authorized and undertaken, by a municipality, although the amount thereof be not at the time definitely ascertained by the authority authorized to determine the same, and a lien therefor be not filed, but becomes filable within the period and in the manner herein provided, (2) the claim filed to recover for the grading guttering, macadamizing, or otherwise improving, the cartways of any public highway; for grading, curbing, recurbing, paving, repaving, constructing, or repairing the footways thereof; for laying water pipes, gas pipes, culverts, sewers, branch sewers, or sewer connections therein; for assessments for benefits in the opening, widening or vacation thereof; or in the changing of watercourses or the construction of sewers through private lands; or in highways of townships of the first class; or in the acquisition-of sewers and drains constructed and owned by individuals and corporations, and of rights in and to use the same; for the removal of nuisances; or for water rates, lighting rates, or sewer rates, and (3) the claim filed to recover for work, material, and services rendered or furnished in the construction, improvement, maintenance, and operation of a project or projects of a body politic or corporate created as a Municipal Authority pursuant to law.

53 P.S. § 7101 (Emphasis added.) Governing the filing of municipal claims, section 7143 of the Act provides, in relevant part,

Claims for taxes ... must be filed in the court of common pleas of the county in which the property is situated ... All such claims shall be filed on or before the last day of the third calendar year after that in which the taxes ... are first payable____
* * * * * *
A number of years’ taxes ... if payable to the same plaintiff may be included in one claim. Municipal claims shall likewise be filed within said period, where any appeal is taken from the assessment for the recovery of which such municipal claim is filed. In such case the lien filed shall be in the form hereinafter provided, except that it shall set forth the amount of the claim as an undetermined amount, the amount thereof to be determined by the appeal taken from the assessment upon which such municipal claim is based, pending in a certain court (referring to the court and proceeding where such appeal is pending.) Upon the filing of such municipal claim, the claim shall be indexed by the prothonotary upon the judgment index and upon the locality index of the court, and the amount of the claim set forth therein as an undetermined amount ...
* * * * * *
When the final judgment is obtained upon such appeal, the court in which said municipal claim is pending shall, upon the petition of any interested party, make an order fixing the undetermined amount claimed in such a claim at the amount determined by the final judgment upon said appeal ... Proceedings upon said municipal claim thereafter shall be as in other cases.
Where, on final judgment upon said appeal, it appears that no amount is due upon the assessment for the recovery of which such claim is filed, the court in which such municipal claim is pending shall, upon the petition of any interested party, make an order striking such municipal claim from the record ...

53 P.S. § 7143. Significantly, the statute refers to the municipal claim, once filed, as a lien.

The procedures for taking assessment appeals are not found in the General Municipal Law, but rather, in the General County Assessment Law, 72 P.S. § 5020-101 et seq. As indicated there, any owner of real estate in this Commonwealth, who feels aggrieved by the last or any future assessment or valuation of his real estate, may appeal from the Board’s decision. 72 P.S. § 5020-518.1. Taxing bodies are afforded the same appeal rights as the statute accords to taxpayers. 72 P.S. § 5020-520; Appeal of Chartiers Valley School District, 79 Pa.Commw. 69, 469 A.2d 324 (1983). Thus, the appeals referred to in 53 P.S. § 7143 may be appeals taken by municipalities, as well as by taxpayers.

The Legislature is not presumed to have intended provisions of its enactments as mere surplusage. Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977); Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982). In construing statutory language then, courts must assume that the Legislature intended that every word would have effect. 1 Pa.Cons.Stat. § 1922; Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979). Thus, we conclude that appellants’ “expectancy of additional tax revenues” falls within the definition of a municipal claim set forth in 53 P.S. § 7101.

The extent of appellants’ interests, if any, arising from the assessment of the subject property for real estate tax purposes, has not been “definitely ascertained by the authority authorized” to do so. Although initially the amount of taxes owed for the years in question was calculable, based on the assessed value of $1,000,000.00, Judge O’Malley remanded the question of the appropriate assessment for these years to the Board, in light of the $1,500,-000.00 assessment as stipulated to for 1975. When the Board refused to alter the earlier assessment, appellants appealed to the Court of Common Pleas, pursuant to 72 P.S. §§ 5020-518.1 and 5020-520. Moreover, the emphasized language in the statutory definition could well be rendered meaningless were we not to conclude that the municipalities’ anticipated claim for additional revenue fell within its scope. In situations where the amount of taxes owed has been ascertained, the taxing authority may file a “tax claim.” In light of the definition of “municipal claim” in question, “tax claim” does not entail a claim for taxes in an amount as yet undetermined; otherwise this reference within the definition of “municipal claim” would be superfluous. Similarly, the scope of the underlined language is not limited by the definition’s subsequent references to claims resulting from the provision of services, improvements of highways and sewer systems, maintenance of Municipal Authorities, etc. Section 7101 indicates that “municipal claim” includes both of the subjects thereafter delineated, thereby distinguishing between the several types of municipal claims. In addition, the language under scrutiny here is unnecessary to the protection of a municipality’s interest in these other forms of municipal claims, given the detail used in specifically defining these other types of claims. Furthermore, the definition does not limit the kinds of taxes referred to by the phrase “arising out of, or resulting from, a tax assessed” to any particular kind of tax assessed, e.g., real property tax, transit tax. Finally, although no lien has been filed here, the municipalities’ claim “has become filable,” as mandated by the statutory language. As noted above, a municipal claim may be filed

where any appeal is taken from the assessment for the recovery of which such municipal claim is filed ... [I]t shall set forth the amount of the claim as an undetermined amount, the amount thereof to be determined by the appeal upon which such municipal claim is based, pending in a certain court (referring to the court and proceeding where such appeal is pending.)

53 P.S. § 7143.

Inclusion of the emphasized language in section 7101 within this legislative scheme signals, then, the General Assembly’s intent to afford a taxing body protection of its interest pending resolution of the dispute over the amount of taxes owed; by virtue of 53 P.S. § 7143, a municipality need not await a decision in its favor in the Court of Common Pleas to file a “municipal claim.”

The tax years at issue in the municipalities’ assessment appeal here began with the year 1976. Given that appellants’ interest in additional tax revenues, though contingent, may be characterized as a “municipal claim” under 53 P.S. § 7101, appellants had until December 31, 1979 to file a claim for any additional sum appellees would owe as a result of an increased assessment for 1976, and so forth for the subsequent years. 53 P.S. § 7143. The Court of Common Pleas acquired jurisdiction over the 1976 assessment dispute at least as early as July 21, 1978, the date of the District’s appeal to that tribunal following the Board’s failure to increase the assessment for 1976. On that date, more than one full year before the allegedly fraudulent conveyances, appellants could have filed a municipal claim in an undetermined amount. By doing so, appellants could have protected themselves against subsequent purchasers of the subject property, whether or not the conveyances were fraudulent.

Moreover, by virtue of 53 P.S. § 7432, appellants could have safeguarded their interests, notwithstanding further transfers of the subject property by appellees. In pertinent part, this provision states

Whenever, heretofore or hereafter, any ... township, school district ... has failed to file in the office of the prothonotary of the county, any tax claim or municipal claim assessed against any property within the time limit required by law for such filing, whereby the lien of such tax or municipal claim is lost; ... then, in any such case heretofore or hereafter occurring, any such ... township, school district ... may, at any time after the effective date of this act, file such tax or municipal claim ... and such claim ... so entered ... shall be a valid claim ... and be a lien upon the real estate upon which it was a lien at the time the claim was filed ...: Provided, that the lien of any such claim ... shall not reattach against any real estate transferred to any purchaser before such claim is filed or during the time when the lien of any such tax or municipal claim ... is lost, nor shall the lien of any such claim ... impair or affect the priority because of the lien of any mortgage or other lien which gained priority because of the failure of the township, school district ... to file such claim.

53 P.S. § 7432.

Because this is a statutory lien, no judgment need be obtained; perfection can be accomplished merely by filing the lien. See In re Wilson, 25 B.R. 61 (Bankr.W.D.Pa. 1982).

As enunciated in Sanft v. Boro. of West Grove, 63 Pa.Commw. 366, 437 A.2d 1332 (1981), sections 7143 and 7432 together establish a three-year limitation period for the filing of municipal claims, while allowing a municipality which has failed to file within that time to file later, but with protection for interests which attached while the lien of the municipal claim was lost by reason of the municipality’s failure to file timely. Id., 63 Pa.Commw. at 369, 437 A.2d at 1334. Therefore, the public’s interest in the municipality’s receipt of payment of its claims is preserved, as are the rights of intervening purchasors and lienors.

Thus, because appellants had adequate statutory remedies available to them, we conclude that Judge Narick properly granted appellees’ preliminary objections and dismissed the Complaint in Equity with prejudice. Contra Zerbe Twp. Sch. Dist. v. Thomas, 353 Pa. 162, 44 A.2d 566 (1945) (Equitable intervention appropriate to prevent waste where tax collection proceedings had terminated.)

Relying on section 5511.21(b) of the Local Tax Collection Law, 72 P.S. § 5511.1- .42, appellants contend, however, that an equitable action is statutorily authorized. That provision states that

In addition to all other remedies provided by this act, each taxing district shall have power to collect unpaid taxes from the persons owing such taxes by suit in assumpsit or other appropriate remedy.

72 P.S. § 5511.21(b) (Emphasis added.)

Appellants, however, misconstrue this provision. For purposes of the Local Tax Collection Law, the term “taxes” includes all taxes levied and assessed by taxing districts. 72 P.S. § 5511.2. As appellants concede, the tax bill assessed to date here has been completely satisfied; no unpaid taxes remain. Moreover, there is no suggestion that any other form of municipal claim, such as a claim for an undetermined amount of taxes, would trigger application of section 5511.21(b). Accordingly, appellants’ argument here too must fail.

ALLEGATIONS OF FRAUD

Alternatively, appellants contend that equitable intervention is appropriate here, given that fraud has been alleged with specificity, and equity always has jurisdiction where fraud is involved. Here appellant distinguishes Derry Township, supra, relying instead on Witmer’s Appeal, 45 Pa. 455, 461 (1863), which was discussed in Derry:

The plaintiff relies on the case of Witmer’s Appeal, 45 Pa. 455, in an effort to sustain equity jurisdiction on the ground of fraud. That decision has no application to the facts in this case. There the defendant admitted that he had detached parts of the machinery for the purpose of enabling certain of his creditors to obtain a preference. Proof of collusion was clearly established. Moreover, the act was done with the express intention of rendering the mill incapable of being operated as a going concern. In the present case there are no facts on which a charge of fraud could be sustained.

In the instant case, the pleadings contain, arguably, “facts on which a charge of fraud could be sustained.” The Complaint includes averments of fraud in the transfers of the Virginia Mansions property, to a trust established for the benefit of the corporate president-majority stockholder’s children, and to the president and his wife as tenants by the entireties, for less than fair consideration and in the face of the outstanding tax dispute with appellants. These allegations do not, however, speak to the municipalities’ failure to take advantage of their available statutory remedies. In fact, the Complaint notes that each of the deeds conveying the subject property were duly recorded on the date of the conveyances. As such, appellants are charged with constructive notice of the conveyances on August 1, 1979, and December 1, 1979, respectively, long after the assessment dispute began. Section 7143 provided appellants with an adequate statutory remedy; the fraudulent conduct alleged here is not cited as the cause of appellants’ failure to timely pursue the statutory avenues available. Accord, Pivirotto v. Starusko, 64 Pa.Commw. 346, 440 A.2d 637 (1982).

CONCLUSION

Given that statutory remedies are preferred over those found at common law, 1 Pa.Cons.Stat. § 1504; Pechner, Dorfman, etc. v. Pa. Ins. Dept., 499 Pa. 139, 452 A.2d 230 (1982), equity will not act to save litigants from their failure to statutorily protect their interests, where the statutory remedy is adequate to prevent the harm. For example, in First Federal Savings & Loan v. Swift, 457 Pa. 206, 321 A.2d 895 (1974), First Federal, as mortgagee, instituted an equitable proceeding to set aside a judicial tax sale, on the basis of its own unilateral mistake. Although the chancellor set aside the sale, the Supreme Court, per Justice Roberts, reversed, noting that the rights of the parties were specifically established by the Real Estate Tax Sale Law.

The statute provides several protections for a mortgagee. Notice must be given, and here it was. A mortgagee, as a “lien creditor of the owner,” may stay the sale by entering into an agreement with the tax bureau for the payment of back taxes. First Federal negotiated no such agreement. Prior to sale, “any lien creditor” may redeem the property. First Federal did not____ Finally, a mortgagee may bid for and purchase premises on which it holds a mortgage. Despite actual notice, First Federal did not appear or bid at the judicial sale. The record reveals that First Federal failed to avail itself of any of the ample opportunities to protect its interest ...
Id., 457 Pa. at 211-212, 321 A.2d at 897-898. (Footnotes omitted.)

Thus, concluding that First Federal was not entitled to the relief sought, the majority observed that

[Cjourts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there are available means which would have enabled him to avoid the mistake if reasonable care had been exercised.
Id., 457 Pa. at 213, 321 A.2d at 898. (Citations omitted.)

Accordingly, in light of the foregoing, the order sustaining appellees’ preliminary objections, dismissing the Complaint with prejudice, and striking the lis pendens indexed against the subject property in the instant case is affirmed.

      . As the Commonwealth Court noted in Virginia Mansions Apts., Inc. Appeal, 52 Pa.Commw. 262, 415 A.2d 963 (1980), the 1976-77-78 triennial assessment at issue here was made by the assessors in late 1975, before Judge O’Malley’s decision in the 1975 case. Judge O’Malley thereby acquired jurisdiction over the 1976-77-78 triennial appeal, by virtue of 72 P.S. § 5452.11, applicable to taxing bodies, 72 P.S. § 5020-520, which provides that a tax assessment appeal pending before the court will be treated as an appeal for any triennial assessment made before determination of the original appeal by the court. Similarly, because resolution by the Court of Common Pleas of the question of the assessment for the triennial period beginning in 1976 had not been achieved as of May 25, 1982, the date on which the Complaint in Equity was filed, the trial court had jurisdiction over the assessment for the subsequent years as well.

      . Throughout, the municipalities’ request for an increase in the assessment has been premised on (1) the agreed-upon assessed value of $1,500,000.00 for 1975, and (2) the alleged appreciation in value of the property since 1974, by reason of improvements made to it, and the general increase in real estate values.

      . We have been advised that the trial court has determined the appropriate assessment for these years, and that an appeal from that determination has been taken to the Commonwealth Court.

      . The Complaint in Equity speaks of $250,000.00 in taxes that would be owed as a result of an increase, if the value of the properties for these years is assessed at $1,500,000.00.

      . The Complaint at one point alleges that this conveyance was made on August 1, 1979, and at another point, indicates that the transferral occurred on September 1, 1979. The exact date is not, however, relevant to our disposition here.

      . The Sunland Properties Trust Agreement was recorded on December 28, 1979.

      . Apparently some of the condominium units have since been sold, as opposed to merely leased.

      . Some factual dissimilarities exist between Derry and the instant case. In Derry, the real estate tax bill had not been paid. As such, the taxing authority requested an order directing payment of the unpaid school taxes, and permanently restraining the coal company from removing any buildings or mine equipment still remaining on its property. Nonetheless, we do not view this distinction as dispositive in the instant case, with regard to the request for equitable relief.

      . By Act of April 30, 1929, P.L. 902 § 1, the definition of municipal claim relevant here was added to the statute as originally phrased, Act of May 16, 1923, P.L. 207 § 1. Apparently the word “both” here was carried over from the original enactment.

      . We assume that no municipal claim has been filed here, given the commencement of this action in equity.

      . The pleadings in the instant case are incomplete with regard to the exact date that the question of the 1976 assessment was before the Court of Common Pleas. But see, n. 1, infra. In any case, our decision to err in favor of appellants on this question does not influence the analysis here.

      . 53 P.S. § 7391 contains a similar provision. Nonetheless, we refer here to section 7432 given that § 7391, promulgated on April 4, 1957, permits the filing of a municipal claim "within six months after its effective date.”

      . Appellees will not be heard to complain that the municipalities’ interest is too indefinite to be characterized as a "municipal claim” under 53 P.S. § 7101. In arguing that appellants have an adequate remedy at law, appellees, within their brief, contend that appellants could have utilized the protections of section 7143 vis-a-vis the filing of municipal claims.