author: McGOVERN JR., J.,

text:
    Newman v. Lombardo

      C.P. of Delaware County,
    no. 97-21140.

      John C. Coste, for plaintiffs.

      J. Michael Kvetan, for defendant Lombardo.

      John S. Kokonos, for defendant Marion.
    March 3, 2000
   McGOVERN JR., J.,

Plaintiffs have filed this appeal from the court’s denial of their motion for post-trial relief.

The defendant, Darci Ann Lombardo, on January 21, 1997, drove her motor vehicle out of a small driveway or alley, crossing through a line of standing cars southbound on Lincoln Avenue and moving into a second southbound lane, intending to cross the double yellow line dividing Lincoln Avenue and then to make a left-hand turn. Defendant Lombardo, however, collided with defendant, Hunter Marion, who was operating his motor vehicle in the second or left southbound lane of Lincoln Avenue. The 74-year-old Hunter Marion was, immediately prior to the collision, in the process of stopping his car at a red light and he was therefore travelling “very slow.” (9/20/99 N.T. 164.) The mild impact from this collision caused Ms. Lombardo’s 1984 Honda Prelude to be pushed into the rear of plaintiffs’ vehicle which was stopped at the red light. The damage to plaintiffs’ vehicle was minimal. (9/20/99 N.T. 65 and exhibits Dl, D3, D4.) No ambulance was summoned. Plaintiffs did not require medical attention at the scene. (9/20/99 N.T. 89.) Plaintiffs drove their car away from the scene.

Plaintiffs’ physician, Dr. Rogowski, a chiropractor who only represents patients referred by attorneys, testified as to the adult plaintiffs’ alleged injuries. (9/20/99 N.T. 149.) Defendants presented only the testimony of defendant, Hunter Marion, and exhibit D4 in their case. The jury deliberated and unanimously determined that the defendant, Darci Ann Lombardo, was negligent but that her negligence was not a substantial factor in bringing about any harm to any of the plaintiffs. The jury concluded that the defendant, Hunter Marion, was not negligent. Plaintiffs’ timely post-trial motions were denied and this appeal followed.

Plaintiffs’ “statement of matters complained of on appeal,” filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), contends that the trial court erred in denying post-trial relief, erred in failing to grant a judgment n.o.v. as to causation, erred in failing to find the jury’s verdict contrary to the weight of the evidence, erred in failing to find the jury’s verdict was contrary to law, and erred in allowing the trial to be called on a Jewish holiday.

WAIVER

While plaintiffs raise boilerplate issues in their concise statement of matters complained of on appeal, they raised but two issues in post-trial motions. Plaintiffs, in their post-trial motions, inquired “Should the jury verdict of zero damages be overturned and a new trial be granted on the issue of damages?” and “Did the court err in calling this case for trial on Yom Kippur thereby excluding a significant portion of the general population from the jury trial?” A fair reading of plaintiffs’ brief accompanying their post-trial motion, suggests that plaintiffs ’ contention basically involves the weight of the evidence. Plaintiffs have failed to raise any specific issue for error by this court suggesting that it warrants a new trial. Plaintiffs have also failed to provide any argument or legal citation for any such proposition. It is clear that the Pennsylvania Rule of Appellate Procedure 2119(a) provides that any argument alleging court error shall be “followed by such discussion and citation of authorities as are deemed pertinent.” Arguments that are not appropriately developed are waived. Nimick v. Shuty, 440 Pa. Super. 87, 655 A.2d 132 (1995); Smith v. Penbridge Associates Inc., 440 Pa. Super. 410, 655 A.2d 1015 (1995); Gallagher v. Sheridan, 445 Pa. Super. 266, 665 A.2d 485 (1995). It is an appellant who has the burden of establishing his entitlement to relief by showing that the ruling of the trial court is erroneous under the evidence or the law. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

Where an appellant fails to cite authority in support of a contention, the claim is waived. Gallagher v. Sheridan, supra; see also, Hercules v. Jones, 415 Pa. Super. 449, 609 A.2d 837 (1992). Therefore, if this matter were presented to an appellate court, as it has been, the law in Pennsylvania would require that all issues save the weight of the evidence, and the listing on a Jewish holiday would be waived.

Further, Pennsylvania Rule of Civil Procedure 227.1(b) provides that

“Post-trial relief may not be granted unless the grounds therefor,
“(1)... were raised... by motion, objection, point for charge,... offer of proof or other appropriate method at trial; and
“(2) are specified in the motion. The motion shall say how the grounds were asserted. . . . Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.” Pennsylvania Rule of Civil Procedure 227.1(b).

Plaintiffs have failed utterly in complying with this rule and therefore all grounds, other than the weight of the evidence arguments have been waived. Frank v. Peckich, 257 Pa. Super. 561, 391 A.2d 624 (1978); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Indeed, Pennsylvania appellate courts have held they would not consider a claim which has not been called to the trial court’s attention at or reasonably near the time of an alleged error so as to allow an opportunity to correct the matter. Noecker v. Johns-Manville Corp., 355 Pa. Super. 463, 513 A.2d 1014 (1986); Takes v. Metropolitan Edison Co., 440 Pa. Super. 101, 655 A.2d 138 (1995). It is the movants’ responsibility to assist the trial court in preventing error at the trial stage wherever there is the opportunity to correct.

It is respectfully submitted that all of the foregoing grounds except the weight of the evidence argument have been waived.

Further, plaintiffs’ second contention suggesting that there was error in the court’s calling this trial on a Jewish holiday, Yom Kippur, has likewise been waived because plaintiffs never raised that issue until their post-trial motions. The notes of testimony are silent as to any such issue and, indeed, when the court inquired of counsel as to whether they were ready for trial, plaintiffs’ counsel responded affirmatively, without objection. (N.T. 8, 1. 12.) When this court inquired of counsel whether there was anything further before the jury was sworn, counsel for plaintiffs responded, “I have nothing further, your honor.” (N.T. 17, 1. 15.) Finally, at the conclusion of this court’s instructions to the jury, counsel were asked by the court:

“Alright. Do you have any exceptions, corrections, additions, deletions to the court’s charge for the plaintiffs, Mr. Coste: no, your honor.” (9/20/99 N.T. 235,11. 4-9.)

This court is unable to find any observation, request or exception by plaintiffs at any time in correspondence or in this record before plaintiffs’ post-trial motions which were filed September 27, 1999, suggesting that the trial date conflicted with a Jewish holiday. Therefore, pursuant to the law of this Commonwealth and its appellate courts, plaintiffs have clearly waived this contention as well.

WEIGHT OF THE EVIDENCE

Plaintiffs seem to contend that a judgment n.o. v. should be entered, finding that there was, in fact some harm legally caused by the defendant Lombardo’s negligence. However, the extreme relief of setting aside a jury’s verdict will be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that a verdict or finding was improper. Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa. Super. 308, 605 A.2d 373 (1992). It clearly cannot be said as a matter of law that no two reasonable minds could differ in finding of legal cause in the case at bar. Thomas v. Allegheny and Eastern Coal Company, 309 Pa. Super. 333, 455 A.2d 637 (1982). This extraordinary relief is not the appropriate action where the verdict is found to be against the weight of the evidence. There, a new trial is in order if the record warrants it.

Although plaintiffs requested a judgment n.o.v. because that relief is clearly inappropriate, the plaintiffs’ contentions, therefore, will be weighed against the standards applicable to the grant of a new trial. Here, the court is required to consider all competent evidence and determine whether the verdict was against the clear weight of the evidence or whether there was clear error of law, or a palpable abuse of discretion on the part of the trial court. Klyman v. SEPTA, 331 Pa. Super. 172, 480 A.2d 299 (1984); Tyus v. Resta, 328 Pa. Super. 11, 476 A.2d 427 (1984). Abuse of discretion by a trial court can be found only where there is clear and convincing evidence of such. Where the trial court’s decision is valid on any ground, it will be upheld. Dalton v. Dalton, 409 Pa. Super. 258, 597 A.2d 1192 (1991). The record must be examined to determine whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corporation, 513 Pa. 411, 521 A.2d 413 (1987); Solomon v. Baum, 126 Pa. Commw. 646, 560 A.2d 878 (1989). Abuse of discretion is not merely an error of judgment but rather, if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill will as shown by the evidence or the record, then discretion is abused. Spitzer v. Tucker, 404 Pa. Super. 539, 591 A.2d 723 (1991). A new trial will be awarded only where the verdict is so contrary to the evidence as to shock the court’s sense of justice. Palange v. City of Philadelphia, Law Department, 433 Pa. Super. 373,640 A.2d 1305 (1994); Giovanetti v. Johns-Manville Corp., 372 Pa. Super. 431, 539 A.2d 871 (1988); Ludmer v. Nernberg, 433 Pa. Super. 316, 640 A.2d 939 (1994).

As has hereinabove been seen, plaintiffs at no point have indicated any error of law by this court nor have plaintiffs directed this court’s attention to any place in the record that would suggest the court’s judgment was manifestly unreasonable or the result of partiality, prejudice, bias, or ill will.

Plaintiffs’ proposed relief seeks to have the court find that there was negligence on the part of both defendants and that such was a legal cause of harm to all of the plaintiffs. Plaintiffs have indicated no place in this record where the trial judge erred in his rulings and, as has hereinabove been observed, plaintiffs had no exception upon the completion of the court’s instructions to the jury. Plaintiffs have no objection to any evidentiary ruling by the trial judge. Therefore, the only basis that could possibly exist for a new trial would be that the verdict is against the weight of the evidence.

The evidence, as has been seen, indicates that the defendant, Darci Ann Lombardo, exited from a small driveway passing through a standing line of traffic into a moving line of southbound traffic and there collided with the other defendant who was travelling “very slow.” (9/20/99 N.T. 164.) Plaintiff, Kathleen M. Harkins (mother of the driver), and plaintiff, Katie E. Newman (the driver), could not contradict defendant’s testimony as to the careful nature of defendant Marion’s driving because the first the plaintiffs knew of the accident was at the impact. (N.T. 57-58, 80.) Therefore, there was no evidence in this trial upon which a jury could impact. (N.T. 57-58, 80.) Therefore, there was no evidence in this trial upon which a jury could possibly have found the defendant, Hunter Marion, negligent since the only testimony was that he was carefully and cautiously proceeding prior to the impact from Ms. Lombardo. The defendant, Hunter Marion, testified that: defendant, Darci Ann Lombardo,

“As I was approaching that alleyway, a car shot out and hit me on my front right part of my car... it bounced off me ....” (9/20/99 N.T. 165-66.)

Defendant, James Newman, also testified concerning this aspect of the accident. He was in the car behind his mother-in-law and wife, other plaintiffs. He testified that Ms. Lombardo “just shot across____” (9/20/99 N.T. 107, 108.) This witness claimed that Mr. Marion struck Ms. Lombardo. Although barely, one can conclude that there is adequate evidence in this record to support the jury’s verdict finding Ms. Lombardo negligent.

The impact in this matter was minimal. Plaintiffs did not strike the vehicle in front of them which was also stopped for the red light. (9/20/99 N.T. 95.) As has already been seen, this incident involved very little speed and very slight impact. (9/20/99 N.T. 80, 107-109, 165, 168, 171.) None of the plaintiffs required any medical attention at the scene and no ambulance was called. The plaintiffs drove home in their own car following this incident. (9/20/99 N.T. 89.) The minor, Francis J. Newman, was examined once by his pediatrician and was found uninjured. (9/20/99 N.T. 80.) And the plaintiffs, Katie Newman and Kathleen Harkins, treated not with their family doctors but with a chiropractor that they saw one or two days after the accident following their visit to an attorney. (9/20/99 N.T. 59, 61, 70, 84, 96, 97.) The chiropractor testified that he discharged both of these women about two months after the accident with instructions to return if they had further problems. Neither returned. (9/ 20/99 N.T. 152-53, 155.) Both of those plaintiffs, however, complained at trial that they were still suffering from this collision. Further, it was clear that Mrs. Newman had consulted other physicians but only the chiropractor was called at trial.

Therefore, in light of the foregoing, which represents only some of the testimony in this trial, a jury had ample evidence upon which to conclude that Ms. Lombardo’s negligence was not a substantial factor in causing any of these plaintiffs harm. Certainly, this trial judge’s conscience is not shocked by the jury’s verdict but rather this record supports the conclusion that the verdict was indeed supported by greater than a fair preponderance of the evidence. Hilbert v. Katz, 309 Pa. Super. 466, 455 A.2d 704 (1983). This jury, in all likelihood, found plaintiffs’ testimony as to injuries and physical impact to be incredible along with the testimony offered from plaintiffs’ chiropractor, who only takes referrals from lawyers.

Since there is simply no basis in this record upon which one can conclude that the verdict was against the clear weight of this evidence, there can be no error in this court’s denial of defendant’s motions for post-trial relief.

YOM KIPPUR

Although this court is convinced that this issue has been waived by plaintiffs, because of the unfortunate nature of the accusation, this court believes it is compelled to briefly respond.

Plaintiffs argue that by holding this trial on Yom Kippur, the plaintiffs were deprived of a significant portion of the general population which would otherwise be eligible for service on this jury.

The plaintiffs’ bold assertion in this regard is not only waived, but also fails to meet even a modicum of credibility. Initially, there is no evidence in this record that September 20, 1999 was Yom Kippur. This court, however, is willing to take judicial notice sua sponte of the calendar in that regard. Plaintiffs, however, have failed to produce any evidence that Jewish members of the community were not included in the general venire or in the venire panel made available for this particular jury trial. Indeed, plaintiffs have failed to establish that no member of this jury was Jewish. Plaintiffs have failed to indicate as to whether or not . they were Jewish. But on a broader scale, plaintiffs have failed to indicate that by this court’s calling jurors in on September 20, it has indeed deprived litigants of the opportunity to select Jewish jurors for their trials. There is no constitutional right in this regard, nor depravation thereof nor pleading, nor argument as to any such suggestion.

It must be said that this court has not ever, nor is it now, nor did it in this case, in any way discriminate against any party because of race, religion or any other unconstitutional basis.

Plaintiffs present the matter of Commonwealth v. Craver, 547 Pa. 17, 688 A.2d 691 (1997), as authority to support their position. The Pennsylvania Supreme Court there held that, in order to establish a prima facie violation of the requirement that the jury array fairly represent the community, defendants must show that the group allegedly excluded is a distinctive group in the community, that representation of the group in venires from which juries are selected is not fair and reasonable in relation to the number of such people in the community, and that under-representation is due to systematic exclusion of the group in the jury selection process. Systematic means caused by or inherent in the system by which juries are selected. The court’s citing Duren v. Missouri, 439 U.S. at 64, 99 S.Ct. at 668, 58 L.Ed.2d at 586-87. This same Pennsylvania Supreme Court noted that “in Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976), this court upheld Delaware County’s method of using voter registration list to create its jury array. Since that time, the county’s jury pool has been made more inclusive by adding to the pool list of those holding driver’s licenses as permitted by 42 Pa.C.S. §4521.”

Even a cursory glance at the Supreme Court’s opinion in Commonwealth v. Craver, supra, will indicate the shallowness of plaintiffs’ contention. There is not a scintilla of evidence presented anywhere in this record that suggest a group, here Jewish, was in fact excluded. There is no indication of the representative numbers of that group in the community nor is there any indication of the representative numbers of the Jewish community that were called for jury duty on the date in question or during the year in question. Plaintiffs have not even proffered an argument that “the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such people in the community.” Finally, and quite significantly, plaintiffs have failed to show that there is any systematic exclusion of people who would celebrate Yom Kippur in this county’s jury selection process.

While not a matter of this record, this opinion cannot be concluded without the observation that plaintiffs’ counsel has never by letter, telephone call, or any other means of communication requested that this trial be held on a date other than Yom Kippur. The first time this issue was raised was in post-trial motions.

It is this court’s conclusion that plaintiffs’ contention in this regard is meritless and even reprehensible since plaintiffs have not only waived this contention but also have failed to support such a contention by evidence, a record of any sort, or law. Indeed, the case authority presented by plaintiffs presents ample legal authority to support the denial of plaintiffs’ post-trial motions in this regard.

It is respectfully suggested that for the foregoing reasons the denial of plaintiffs’ post-trial motions was neither an error of law nor an abuse of discretion and that plaintiffs’ grounds are without merit and therefore the trial court properly denied plaintiffs’ post-trial request for relief.

      . Plaintiffs sought to recover compensatory damages for plaintiff, Francis J. Newman, a minor, plaintiff, Katie E. Newman and plaintiff, Kathleen M. Harkins. Plaintiffs also sought to recover damages for loss of consortium to James Newman and James Harkins.

      . Although plaintiffs’ post-trial motions requested a new trial limited to damages, such a result would be legally impossible since this jury found no legal cause connected with the only negligence that they found on the part of defendant, Darci Ann Lombardo.

      . It is observed that the notes of testimony filed December 23, 1999 indicate that the date of this trial was September 29, 1999. This court’s records, however, indicate that the proper date is September 20, 1999.

      . Because of the serious nature of this latter contention, however, it will be treated briefly in this opinion.

      . As has already here and above been observed, plaintiffs sought a judgment n.o.v. which this court, compelled by the law, treats as a request for a new trial. Plaintiffs specifically requested in their motion for post-trial relief that “the verdict is amended to read as follows:

        ‘Verdict in favor of plaintiffs, Francis Newman, Katie E. Newman, James Newman, Kathleen M. Harkins and James Harkins, and against defendants, Darci Ann Lombardo and Hunter Marion, on the issues of whether the defendants were negligent and whether the defendants’ negligence was a substantial factor in causing injury to the plaintiffs. ’ ” (Plaintiffs’ proposed order accompanying plaintiffs’ brief in support of motion for post-trial relief.)


source: Caselaw Access Project

author: FORD, J.,

license: Public Domain

text:
    Leary v. Horn

      C.P. of Lehigh County,
    no. 1997-C-2438.

      Ronald J. Gordon, for plaintiff.

      Kevin C. Reid, for defendants.
    March 8, 2000
   FORD, J.,

The plaintiff, Jane Leary, and defendant, John Horn, were involved in an automobile accident on January 16, 1996, in the City of Allentown. The accident was caused by the negligence of defendant, John Horn. The defendant admitted this at the jury trial which occurred on November 22 and 23,1999.

As a result of the automobile accident, the plaintiff, Jane Leary, claimed that she suffered soft tissue injury to her upper back, neck and arms. However, the evidence tended to establish a minimal impact car accident.

Specific interrogatories were submitted to the jury. The jury responded that the negligence of defendant, John Horn, was a substantial factor in bringing about harm to plaintiff, Jane Leary. However, the jury wrote “none” on the special interrogatory in response to the following: “Question 2: State the amount of damages sustained by the plaintiff, Jane Leary.”

In view of these responses to the special interrogatories, the court, on November 23, 1999, molded the verdict to read that a verdict was entered in favor of defendant, John Horn, and against the plaintiff, Jane Leary.

The plaintiff, through counsel, filed a motion for post-trial relief under Pa.R.C.P. 227.1(1), on December 1, 1999. A brief accompanied that motion. Defense counsel filed a response to the motion on January 27, 2000. That response was almost two months after the motion. Additionally, we do not have the benefit of defendant’s argument in opposition to the post-trial motion because defense counsel did not file a brief accompanying the response.

In the post-trial motion, the plaintiff seeks a new trial because “[t]he verdict of the jury... is so contrary to the evidence that it shocks one’s sense of justice.”

The following discussion in Gallagher v. Marguglio, 429 Pa. Super. 451, 632 A.2d 1309 (1993), allocatur denied, 538 Pa. 612, 645 A.2d 1316 (1994), sets forth the standard for us to determine whether the verdict of the jury should be set aside and a new trial be granted on the issue of damages.

“The decision to grant a new trial because of the ex-cessiveness or inadequacy of the judgment is a matter within the sound discretion of the trial court, and its decision will be sustained by an appellate court in the absence of a clear abuse of discretion or error of law which affected the judgment or the outcome of the case....

“The amount of a jury verdict will rarely be held inadequate on appeal. Moreover, we emphasize that it is the province of the jury to assess the evidence and to accept or reject conflicting testimony given by witnesses. Even if testimony is uncontradicted, the jury is not required to accept everything or anything a party presents.

“Dawson v. Fowler, 384 Pa. Super. 329, [333,] 558 A.2d 565, 567 (1989), appeal denied, 523 Pa. 636, 565 A.2d 445 (1989). (citations omitted) A verdict will not be set aside if the verdict bears a reasonable resemblance to the proven charges....

“We have held that seemingly low and unfair jury verdicts are nevertheless adequate when the jurors are presented with conflicting testimony on liability, contributory negligence or degree of injury. Dawson, supra.” Gallagher at 454, 632 A.2d at 1311. (citations omitted)

The Superior Court, in Gallagher v. Marguglio, stated that “[i]f an injury is not shown to be a type that is painful, the pain experienced is subjective and the triers of fact are not obliged to believe that every injury causes pain or the pain alleged.” Gallagher at 455, 632 A.2d at 1311.

Even if the plaintiff was injured, it is possible that the jury could find that the injury was so slight, justifying a refusal to award damages. Kirby v. Carlisle, 178 Pa. Super. 389, 392, 116 A.2d 220, 221 (1955). Our law recognizes that there are some injuries that are not compensable, a “rub of life” so to speak.

The Pennsylvania Supreme Court has held that “it is not only a trial court’s inherent fundamental and salutary power, but its duty to grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of justice.” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). (citations omitted) A new trial should not be granted simply because of conflicts in the testimony. Rather, if the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, then the award of a new trial is imperative “so that right may be given another opportunity to prevail.” Burrell v. Philadelphia Electric Company, 438 Pa. 286, 289, 265 A.2d 516, 518 (1970).

With these considerations in mind, we turn to what transacted at trial.

While fault for the accident was admitted by the defendant, the issue of damages was hotly contested. It was uncontroverted that following the accident in Allentown, the plaintiff visited with her daughter in Allentown and then returned to her home in Stroudsburg, approximately one hour away by automobile ride. 11/22/99 N.T., pp. 22-23. It was admitted that the plaintiff did not suffer any loss of work as a result of the accident. N.T., pp. 27-28.

The plaintiff also suffered an accident subsequent to this January 16,1996 accident. On April 12,1996, plaintiff injured herself at work. That did result in loss of employment. N.T., pp. 15,33,40. Additionally, the plaintiff had problems, prior to the accident, with areas of her body that were allegedly injured in the accident.

Although the testimony was somewhat contradictory, it appears that the plaintiff did not alter her activities following this accident. N.T., pp. 34-35.

The only treatment that she received following this automobile accident was at the hands of a chiropractor, which treatment began about six days after the automobile accident. N.T., p. 9. However, following the subsequent work injury, she treated with other healthcare providers.

The chiropractor testified and corroborated the claims of the plaintiff which tended to indicate bothersome, long-term soft tissue injuries as a result of the accident. On the other hand, the defendant offered the testimony of an orthopedic surgeon who testified that he believed an injury was suffered but he classified it as strain that resolved in a matter of a few months.

In summary, there was conflicting testimony about the degree of injuries claimed. The jury was free to disregard all the evidence and to disbelieve the plaintiff that she suffered any injury. By the same token the jury was free to accept the evidence and argument of the defense that only minimal injuries were sustained. If that was the reasoning of the jury, it was at liberty to find that such injuries were not compensable. There is nothing shocking about this verdict. It is not contrary to the weight of the evidence. It is not inadequate as a matter of law. Rather, there is basis in the record for the verdict rendered by the jury.

Under these circumstances, it is necessary that we deny the motion for post-trial relief.

ORDER

Now, March 8, 2000, for the reasons set forth in the accompanying opinion, and after consideration of plaintiff’s motion for post-trial relief, brief in support thereof and the defendant’s response to the motion, it is hereby ordered that the plaintiff’s motion for post-trial relief is denied.

      . The only petition that was presented for transcription was the petition of the plaintiff who sought the notes of testimony for the plaintiff’s testimony only. Those notes of testimony have been transcribed and constitute the only portion of the trial to be transcribed.


author: DONOHUE, Member,

text:
    In re Anonymous No. 28 D.B. 98

      Disciplinary Board Docket no. 28 D.B. 1998.
    February 3, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

DONOHUE, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

Respondent, [ ], was temporarily suspended by order of the Supreme Court, dated March 25, 1998, based on his conviction for making false statements to the [A] Administration in violation of 18 U.S.C. §1001. This matter was referred to the Disciplinary Board pursuant to Rule 214(f)(1), Pa.R.D.E. A petition for discipline was filed by Office of Disciplinary Counsel against respondent on April 21, 1998. Respondent filed an answer to the petition on May 20,1998 and admitted to the allegations contained therein.

A disciplinary hearing was held on August 31, 1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, Member [ ], Esquire, and Alternate Member [ ], Esquire. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ], Esquire. A stipulation of fact and law was entered into by the parties and submitted into evidence.

The Hearing Committee filed a report on October 5, 1998 and recommended a two-year suspension retroactive to March 25, 1998, the date of respondent’s temporary suspension. No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of November 18, 1998.

E. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom in 1943, was admitted to practice law in Pennsylvania in 1971, and his registered address is [ ].

(3) By order of the Supreme Court of Pennsylvania dated March 25, 1998, it was ordered that a joint petition to temporarily suspend an attorney was granted, respondent was placed on temporary suspension, and the matter was referred to the Disciplinary Board pursuant to Rule 214(f)(1), Pa.R.D.E.

(4) In an information filed in the United States District Court for the [ ] District of Pennsylvania, respondent was charged with nine counts of the offense of making false statements to the [A] Administration, an agency within the United States Department of [B] in violation of 18U.S.C. §1001.

(5) Each count of the information is punishable by imprisonment for not more than five years.

(6) On December 18,1997, respondent entered a plea of guilty to all nine counts of the information.

(7) On December 18,1997, respondent was sentenced. He was placed on probation for a term of two years on each of the nine counts to run concurrently. He was placed on home detention for a period of six months commencing December 18,1997. He was ordered to perform community service in the amount of 50 hours per year for each of the two years of probation, and he was fined $20,000 and ordered to pay a $450 assessment.

(8) Respondent’s conviction' stems from misconduct he engaged in as a general partner in 32 different limited partnerships formed to build and/or manage rural rental housing projects for low income tenants under the Rural Rental Housing Program. This program was administered by the [A] Administration, an agency within the United States Department of [B].

(9) Pursuant to mortgage loan agreements entered into by respondent with the United States government, each limited partnership was required to establish and maintain replacement reserve accounts for each project in order to provide funds to meet capital expenses.

(10) These replacement accounts were funded by 1 percent of the rental income being deposited by the limited partnerships.

(11) Funds placed in these accounts were restricted in that they could only be used by the limited partnership as authorized by the [A] Administration and could only be withdrawn with prior written approval of the [A].

(12) Respondent was required to submit a monthly report for each housing project in which he was required to state the current balance in the replacement reserve accounts.

(13) Beginning in 1989 or 1990, respondent became involved in a series of private real estate ventures that resulted in personal financial difficulties. Respondent accumulated approximately $150,000,000 in debt.

(14) Respondent’s financial crisis grew to the point that all available funds were being used to meet the immediate needs of respondent’s ventures. These funds included those in the replacement reserve accounts.

(15) At no time did respondent obtain authorization from the [A] Administration to remove monies from the accounts.

(16) At times, respondent would withdraw funds and then replace that amount at the end of the fiscal year so as to conceal his withdrawals from auditors. In December 1992, respondent did not have funds to replace those he took from the reserve accounts and wrote checks to the accounts that bounced.

(17) On nine monthly reports that respondent was required to prepare and submit to the government, he overstated the balance amounts in the reserve accounts.

(18) In 1993, after his illegal use of the reserves was discovered during an audit, respondent agreed to sell his interest in the properties. The new owners assumed the mortgages plus any other debts. They also agreed to invest in the capital improvement of the properties and develop a plan for the funding of the reserve accounts, thereby eliminating any actual loss to the government.

(19) Respondent has no history of discipline.

(20) Respondent served his period of home detention and paid his fine of $20,000. He completed the first portion of his community service by volunteering at a literacy program.

(21) Respondent demonstrated sincere remorse for his misconduct and cooperated fully with the investigation of Office of Disciplinary Counsel.

III. CONCLUSIONS OF LAW

Respondent’s conviction constitutes an independent basis for discipline, pursuant to Rule 203(b)(1), Pa.R.D.E.

IV. DISCUSSION

This matter is before the Disciplinary Board upon a petition for discipline charging respondent with violation of Pa.R.D.E. 203(b)(1) based on his conviction of nine counts of making false statements to a government agency in violation of 18 U.S.C. §1001.

Pa.R.D.E. 203(b)(1) provides that conviction of a serious crime shall be grounds for discipline. A serious crime is defined by the rules as a crime punishable by imprisonment of one year or more in this or any other jurisdiction. Rule 214(e), Pa.R.D.E., specifies that a certificate of conviction of an attorney for a serious crime shall be conclusive evidence of that crime. When a disciplinary action is commenced against an attorney based on a criminal conviction, the board does not engage in a retrial of the underlying facts of the crime. The board’s responsibility in this situation is to determine the appropriate measure of discipline relative to the seriousness of the crime. The focal issue is whether the attorney’s character, as shown by his or her conduct, makes the attorney unfit to practice law. Office of Disciplinary Counsel v. Casety, 511 Pa. 177, 512 A.2d 607 (1986). This test balances a concern for the public with a respect for the substantial interest of an attorney in maintaining his or her privilege to practice law. Office of Disciplinary Counsel v. Lewis, 492 Pa. 519, 426 A.2d 1138 (1981). It is appropriate for the board to examine any aggravating or mitigating circumstances present in this matter.

Respondent entered a plea of guilty to nine counts of making false statements to a government agency. Each count is punishable by up to five years in prison. Respondent was sentenced to six months home detention, two years of probation, a $20,000 fine, and 50 hours of community service for each of two years. Respondent was placed on temporary suspension by the Supreme Court by order of March 25, 1998.

Respondent acknowledged his culpability and entered into a stipulation with petitioner as to the relevant facts of the matter. The parties stipulated that respondent’s conviction was a violation of the Rules of Disciplinary Enforcement. Respondent and petitioner agreed to a discipline of a two-year period of suspension retroactive to March 25,1998. Even though the parties stipulated to this sanction, the board still conducts a de novo review of this matter. There are no plea agreements permitted in the disciplinary system. The board has the duty to review the case and the authority to impose a different sanction than that stipulated by the parties, if the facts so warrant.

The underlying facts of the criminal conduct as evidenced by the record demonstrate that in February 1993, respondent submitted nine monthly reports to the [A] Administration for the period of December 1992 for nine separate projects, which reports listed higher account balances for replacement reserve accounts than the actual balances in the accounts. Respondent withdrew monies from these accounts to help meet expenses incurred relative to other business pursuits. Respondent’s illegal use of the reserves was eventually discovered during an audit. Respondent was subsequently convicted and sentenced. He served his period of home detention and paid in full his $20,000 fine. He completed the first portion of his probation and the first portion of his community service, which he fulfilled by volunteering at a literacy program.

Other relevant facts of record show that respondent is 55 years of age and was admitted to practice law in Pennsylvania in 1971. Respondent has no prior history of discipline. He is very active in his community of [ ], setting up a scholarship fund for [ ] High School students, contributing time and money to youth sports organizations, and chairing the local [ ] Board. For the past 20 years, respondent has not practiced law but has been active in the area of real estate development. Despite suffering financial setbacks wherein he accumulated $150,000,000 in debt, he was able to work out agreements with various banks across the country to resolve the debts, instead of declaring personal bankruptcy. Respondent sold his interest in the [A] Administration properties and got out of that business. The new owners assumed the mortgage payments and agreed to invest in the capital improvement of the properties and develop a plan for the funding of the reserve accounts, thereby eliminating any actual loss to the government.

Respondent is remorseful for his misconduct and described the events of his conviction as the worst time of his life, as well as for his family. Respondent cooperated fully with petitioner by entering into the stipulation, which saved petitioner the expense of calling as witnesses various government agents and accountants.

Existing case law suggests that a two-year period of suspension is an appropriate discipline for this matter. In the case of In re Anonymous No. 103 D.B. 89, 13 D.&C.4th 238 (1991), an attorney who was convicted of offenses involving fraudulent real estate schemes was suspended for two years retroactive to the date of the temporary suspension.

In light of the totality of the facts of this matter, as well as the case law, the board recommends a two-year period of suspension retroactive to March 25, 1998.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from the practice of law for a period of two years, retroactive to March 25, 1998.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Halpem recused himself.

Board Member Elliott did not participate in the November 18, 1998 adjudication.

ORDER

And now, April 6, 1999, upon consideration of the report and recommendations of the Disciplinary Board dated February 3,1999, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of two years, retroactive to March 25, 1998, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: MOTT, J.,

text:
    McGovern v. Chilson

      C.P. of Bradford County,
    no. 96CV000072.

      Kevin J. Fitzgerald, for plaintiff.

      Bruce L. Coyer, for defendants.
    June 21, 2000
   MOTT, J.,

This matter chiefly revolves around an incident which occurred on February 17,1995, in connection with a thyroidectomy surgery which was scheduled to be performed by the plaintiff, Thomas M. McGovern M.D., at the Robert Packer Hospital. The plaintiff alleges that as the patient was being prepared for surgery, the defendant, Carolyn Chilson, while a nurse employed by the defendant, Robert Packer Hospital and in a defamatory manner, questioned whether the plaintiff possessed surgical privileges to perform that particular type of surgery. In addition, the plaintiff avers that Carolyn Chilson and the defendant, Judy Arena, also a nurse employed by the Robert Packer Hospital, made defamatory remarks in relation to the plaintiff during and following this incident.

On March 5, 1996, the plaintiff filed separate complaints against Carolyn Chilson and Judy Arena. In these two complaints, the plaintiff set forth claims in defamation, and in tortious interference with prospective business advantage. On March 3,1997, the plaintiff also filed a complaint against the Robert Packer Hospital. In this complaint, the plaintiff set forth claims in tortious interference with prospective business advantage, injurious falsehood, intentional infliction of emotional distress, and negligence. On July 20, 1998, Carolyn Chilson, Judy Arena and the Robert Packer Hospital, defendants, jointly filed a motion for consolidation. That motion was granted on August 21,1998, and these related matters were consolidated to number 96CV000072. On December 13, 1999, the defendants filed a motion for summary judgment. That motion is before the court for disposition.

We note that a party may move for summary judgment after the relevant pleadings are closed, if, after the completion of discovery relevant to the motions, the party who bears the burden of proof at trial has failed to produce evidence essential to submit the case to a jury at trial. Pa.R.C.P. 1035.2. Our standard in determining whether to grant such a motion is well settled. We must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 471, 684 A.2d 137, 140 (1996). Summary judgment can only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id.

We will initially consider the defendants’ motion for summary judgment as it relates to the plaintiff’s allegations filed against Carolyn Chilson and Judy Arena: First, concerning a cause of action in defamation, we note that defamation is a communication which tends to harm an individual’s reputation so as to lower him or her in the estimation of the community, or to deter third persons from associating or dealing with him. Zartman v. Lehigh County Humane Society, 333 Pa. Super. 245, 250, 482 A.2d 266, 268 (1984). Second, in order for defamation to occur either in the form of libel or slander, the defamatory material must be published or communicated to a third person. Gaetano v. Sharon Herald Co., 426 Pa. 179, 182, 231 A.2d 753, 755 (1967).

The defendants Chilson and Arena, however, argue that they are entitled to summary judgment on the plaintiff’s defamation claims because the plaintiff cannot demonstrate special harm. In an ordinary defamation matter, Pennsylvania does not recognize presumed damages, but instead, requires a showing of special damages. Walker v. Grand Central Sanitation Inc., 430 Pa. Super. 236, 249, 634 A.2d 237, 243 (1993) (citing Solosko v. Paxton, 383 Pa. 419, 119 A.2d 230, 232 (1956)); 42 Pa.C.S. §8343(a)(7). “Generally speaking, damages for defamatory words when spoken are not recoverable in the absence of proof of special damages.” Id. “Typically considered as pecuniary loss, ‘special damages,’ for purposes of defamation action under Pennsylvania law, are actual and concrete damages capable of being estimated in money, established by specific instances such as actual loss due to withdrawal of trade of particular customers, or actual loss due to refusal of credit by specific persons, all expressed in figures.” 81 Pa.D.2d 411. Special harm is the loss of something having economic or pecuniary value. Restatement (Second) of Torts §575 comment b; Beverly Enterprises Inc. v. Trump, 182 F.3d 183, 188 (3d Cir. 1999). Loss of reputation alone is riot enough to make the defamer hable unless it is reflected in some kind of economic or pecuniary loss. Restatement (Second) of Torts §575 comment b.

Here, the plaintiff contends that the number of referrals made to him by cardiologists reduced after, and as a result of, the incident of February 17, 1995. Therefore, the plaintiff avers that, as a result of the conduct of Carolyn Chilson and Judy Arena, the number of surgeries that he performed while at Robert Packer Hospital diminished, and that he suffered financial loss. However, the plaintiff himself testified that he was a salaried employee, that it made no difference with respect to his salary whether he treated more or less patients, and that, regardless, he was to receive a 10 percent increase in salary in each of the three years following his initial year with the Guthrie Clinic. (Defendants’ exhibit A.) In fact, the plaintiff indicated that he did not know of any manner in which he could earn additional money, aside from his salary, from his duties performed for the Guthrie Clinic, and, that if he did earn additional money, he would have to surrender that money to the Guthrie Clinic pursuant to the provisions of his contract. (Defendants’ exhibit A.) Accordingly, we fail to see how a reduction in referrals could have caused the plaintiff financial loss. Furthermore, the plaintiff testified that he left his employment with the Guthrie Clinic of his own volition, and that no one at the Guthrie Clinic requested that he leave. (Defendants’ exhibit B.) Thus, the plaintiff has not demonstrated that the alleged conduct of Carolyn Chilson and Judy Arena caused his departure from the Guthrie Clinic, or brought about any financial loss to him. Hence, the evidence in the record before us is insufficient to establish pecuniary, or special, harm to the plaintiff.

Where words are held to be slanderous per se, however, proof of special damages is not required. Walker v. Grand Central Sanitation Inc., supra at 245, 634 A.2d at 241; Restatement (Second) of Torts §570. Rather, a victim of slander per se is only required to make a showing of general damages. Walker v. Grand Central Sanitation Inc., supra at 245, 634 A.2d at 241; Restatement (Second) of Torts §621. “Under the Second Restatement, a plaintiff in a slander per se case must show ‘general damages:’ proof that one’s reputation was actually affected by the slander, or that she suffered personal humiliation, or both.” Walker v. Grand Central Sanitation Inc., supra at 246, 634 A.2d at 242. The Restatement (Second) of Torts §573 provides:

“One who publishes a slander that ascribes to another conduct, characteristics or a condition that would adversely affect his fitness for the proper conduct of his lawful business, trade or profession, or of his public or private office, whether honorary or for profit, is subject to liability without proof of special harm.”

This is applicable to members of a learned profession such as medicine. Restatement (Second) of Torts §573 comment b. Thus, statements that a physician is incompetent or negligent in the practice of his profession, are actionable. Id.

Here, the plaintiff asserts that Judy Arena made the false and malicious defamatory statements of “if it was another doctor, they wouldn’t have questioned it,” and that the plaintiff “couldn’t be trusted.” The first of these statements could suggest that the plaintiff’s privileges were questioned because, as opposed to other doctors whose privileges would not be questioned, the plaintiff was incompetent or negligent in the practice of his profession, thereby ascribing to him conduct or characteristics that would adversely affect his fitness for the proper conduct of his profession. With regard to the second of these statements, it is clear that a doctor constantly deals with his patients most private and personal matters, including their physical and mental well-being. Thus, suggesting that a doctor cannot be trusted may certainly impugn his fitness to conduct his profession. Therefore, these statements could disparage the plaintiff in the pursuit of his profession, or tend to harm him in it. Restatement (Second) of Torts §573 comment c. Furthermore, the plaintiff alleges that these statements actually harmed his good name and personal reputation. Thus, we characterize the plaintiff’s defamation claim against Judy Arena as one in slander per se. If proven at trial, the statements could sustain the plaintiff’s claim that his professional reputation was actually affected by the slander, or that he suffered personal humiliation, or both. Therefore, the plaintiff is not required to show special damages, and as a consequence, the defendant, Judy Arena, is not entitled to summary judgment upon her argument that the plaintiff has not demonstrated special harm.

However, concerning Carolyn Chilson, we find that the alleged defamatory statements attributed to her would not sustain a claim of slander per se. The plaintiff asserts that Carolyn Chilson stated, “There is a problem with Dr. McGovern’s credentials,” and “Dr. McGovern does not have privileges to do the procedure that is listed.” In making these statements, it appears that Carolyn Chilson was acting in furtherance of her duties as supervisor of the operating room. Thus, in questioning whether the plaintiff possessed the proper surgical privileges to perform the thyroidectomy, Carolyn Chilson was protecting the interests of the patient, the operating room staff, and the Robert Packer Hospital. While the statements uttered by Judy Arena can be categorized as slander per se, we do not believe the statements made by Carolyn Chilson can be so categorized. Her statements do not ascribe to the plaintiff conduct, characteristics, or a condition that would adversely affect his fitness for the proper conduct of his profession. Nor do these statements in any way suggest that the plaintiff is incompetent or negligent in the practice of his profession. They merely suggest that Dr. McGovern may not have had the proper credentials and privileges to do the procedure scheduled. Because the statements of Carolyn Chilson cannot be characterized as slander per se, the plaintiff must demonstrate special damages on his claim against her, and, as we discussed above, he has not done so. Thus, Carolyn Chilson is entitled to summary judgment on the defamation claim against her.

However, the defendants, Carolyn Chilson and Judy Arena, also argue that they are entitled to summary judgment as to the plaintiff’s defamation claims because the allegedly defamatory statements made by them were conditionally privileged. More specifically, these defendants contend that their communications were privileged because there was a legitimate question as to whether the plaintiff was authorized to perform the thyroidectomy, because their communications were made in the interest of a third party, i.e. the patient, and because the inquiry concerning the surgical privileges was warranted since the safety of the patient was involved. A publisher of defamatory matter is not liable if the publication was made subject to a privilege, and the privilege was not abused. Chicarella v. Passant, 343 Pa. Super. 330, 337, 494 A.2d 1109, 1112 (1985). “Communications made on a proper occasion, from a proper motive, in a proper manner, and based upon reasonable cause are privileged.” Id. at 337, 494 A.2d at 1113. Such occasions giving rise to conditional privileges, for defamation purposes, include: (1) when some interest of the publisher of the defamatory matter is involved; (2) when some interest of the recipient of the matter, or a third party, is involved; and (3) when a recognized interest of the public is involved. Beckman v. Dunn, 276 Pa. Super. 527, 536, 419 A.2d 583, 588 (1980). Once a matter is deemed conditionally privileged, a plaintiff must establish that the defendant abused that conditional privilege. Chicarella v. Passant, supra at 337, 494 A.2d at 1113. Abuse of a conditional privilege is present where the publication: (1) is actuated by malice or negligence; (2) is made for a purpose other than that for which the privilege is given; (3) is made to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege; or (4) includes defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose. Beckman v. Dunn, supra at 537, 419 A.2d at 588. Malice consists of a wrongful act, done intentionally, without just cause or excuse. Corabi v. Curtis Publishing Co., 441 Pa. 432, 451, 273 A.2d 899, 909 (1971).

We find that evidence contained in the record shows that the alleged defamatory statements made by Carolyn Chilson were made subject to a conditional privilege. As we pointed out above, in questioning whether the plaintiff possessed surgical privileges to perform the particular type of surgery that was scheduled, it appears the alleged defamatory words were uttered by Carolyn Chilson to protect the interests of the patient, the operating room staff, and the Robert Packer Hospital. Furthermore, C.W. Konvolinka M.D., chairman of the department of surgery at the Robert Packer Hospital, stated, “the operative privileges for cardiothoracic surgery are vague and perhaps misleading to some.” (Plaintiff’s exhibit A.) Thus, these communications were made on a proper occasion, from a proper motive, and based upon reasonable cause.

We have difficulty, however, even considering the statements of Judy Arena as being made subject to a conditional privilege. Her statements that, “if it was another doctor, they wouldn’t have questioned it,” and that the plaintiff “couldn’t be trusted,” do not seem to be the kind of statements one would make merely to protect the patient or others. Nevertheless, even if we assume they were uttered for those purposes, when we consider whether the statements were made subject to a conditional privilege, we must also consider whether they were made in a proper manner. Here, the nature of the statements made by Judy Arena, raise doubt, at least, of whether they were made in a malicious or negligent manner, made for a purpose other than that for which the privilege is given, and whether they included defamatory matter not reasonably believed to be necessary for the accomplishment of the proper purpose. Therefore, at a minimum, a genuine issue of material fact exists concerning whether Judy Arena abused the conditional privilege. Thus, Judy Arena is also not entitled to summary judgment upon her argument that her communications were privileged.

Conversely, we fail to see how the nature of Carolyn Chilson’s statements could be construed as overstepping the protection afforded by the privilege. It appears that Carolyn Chilson’s statements were appropriate for the purpose of ensuring that the plaintiff’s surgical privileges were in order, and were reasonably necessary for the accomplishment of that purpose. Furthermore, the plaintiff, himself, when asked whether Carolyn Chilson acted maliciously in questioning his surgical privileges, answered, “I’m not sure.” (Defendants’ exhibit D.) Thus, we find that it is evident that Carolyn Chilson did not abuse the conditional privilege. Therefore, for these additional reasons, summary judgment on the defamation claim against her will be granted.

Next, we will consider the defendants’ motion for summary judgment as it relates to the plaintiff’s claim of tortious interference with prospective business advantage against Carolyn Chilson and Judy Arena. The plaintiff alleges that a defamatory course of conduct on the part of these defendants caused a decline in the number of patient referrals to him from cardiologists, thereby disrupting the plaintiff’s relationship with prospective patients. This decline in the number of referrals, the plaintiff asserts, in turn resulted in a loss of a reasonable expectation of economic gain. With respect to tortious interference with business and professional relationships, our Superior Court has stated that four elements must be pleaded:

“(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party;
“(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring;
“(3) the absence of privilege or justification on the part of the defendant; and
“(4) the occasioning of actual legal damage as a result of the defendant’s conduct.” Pawlowski v. Smorto, 403 Pa. Super. 71, 78, 588 A.2d 36, 39-40 (1991). The Restatement (Second) of Torts defines “actual damages” for interference with a contract as follows, at section 774A:
“(1) One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for
“(a) the pecuniary loss of the benefits of the contract or the prospective relation;
“(b) consequential losses for which the interference is a legal cause; and
“(c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference . . . .” Id. at 78, 588 A.2d at 40. (citations omitted)

Thus, initially, we will determine whether the plaintiff has furnished evidence sufficient to prove pecuniary loss in relation to his interference claims. Pecuniary loss is “a loss of money, or of something by which money or something of money value may be acquired.” Black’s Law Dictionary 1288 (4th ed. 1968). Special damages, as applied in a defamation matter, are defined as “actual and concrete damages capable of being estimated in money.” 81 Pa.D.2d 411; see also, Restatement (Second) of Torts §575 comment b (special harm is the loss of something having economic or pecuniary value). Therefore, we conclude that pecuniary loss, as used here pertaining to the plaintiff’s interference claims, is synonymous with special damages, as applied in a defamation matter. Thus, the analysis which we conducted above, concerning whether the plaintiff has provided evidence sufficient to demonstrate special damages as to his defamation claims, is applicable here in deciding whether the plaintiff has demonstrated pecuniary loss. As we stated above, the plaintiff has not demonstrated that the alleged conduct of Carolyn Chilson and Judy Arena caused special harm to him. He simply has not demonstrated that he suffered any pecuniary loss.

However, in his claims for tortious interference with prospective business advantage against Judy Arena and Carolyn Chilson, the plaintiff also asserts that these defendants caused actual harm to his reputation by way of their allegedly defamatory statements. In characterizing the plaintiff’s defamation claim against Judy Arena as one in slander per se, we concluded that Judy Arena’s alleged defamatory statements, “if it was another doctor, they wouldn’t have questioned it,” and that the plaintiff “couldn’t be trusted,” if proven at trial, could sustain the plaintiff’s claim that his reputation was actually affected by the slander. Thus, there also is sufficient evidence in the record to sustain the plaintiff’s claim against Judy Arena for tortious interference with prospective business advantage. Therefore, Judy Arena is not entitled to summary judgment on the plaintiff’s cause of action against her for tortious interference with prospective business advantage.

Concerning Carolyn Chilson, we again refer our analysis pertaining to the plaintiff’s defamation claims. We have found that Carolyn Chilson’s alleged defamatory statements would not sustain a claim of slander per se. It appears that in making the statements, “There is a problem with Dr. McGovern’s credentials,” and, “Dr. McGovern does not have privileges to do the procedure that is listed,” Carolyn Chilson was acting in furtherance of her duties as supervisor of the operating room. Thus, we do not believe that her statements would sustain the plaintiff’s claim that his reputation was actually affected by the statements. In addition, we found above that her statements were privileged and that it did not appear that she abused the privilege. Thus, there is insufficient evidence in the record to sustain the plaintiff’s claim against Carolyn Chilson for tortious interference with prospective business advantage. He has not established pecuniary loss. He has not established actual harm to his reputation, and the record indicates her statements were privileged. Thus, Carolyn Chilson is entitled to summary judgment on this claim against her.

In summary, as to Judy Arena, we reiterate that the alleged defamatory statements made by her, if proven at trial, could sustain a slander per se cause of action. On such a claim the plaintiff is not required to show special damages. As a result, the defendant Arena is not entitled to summary judgment based upon her argument that the plaintiff has failed to demonstrate special harm. In addition, even if the statements of Judy Arena were made subject to a conditional privilege, a genuine issue of material fact exists concerning whether she abused that privilege. Hence, she is also not entitled to summary judgment based upon her argument that her communications were privileged. Moreover, the plaintiff has furnished evidence in the record sufficient to sustain his claim that Judy Arena caused actual harm to his reputation, and consequently, Judy Arena is not entitled to summary judgment on the claim for tortious interference with prospective business advantage filed against her.

Concerning Carolyn Chilson, we note that the alleged defamatory statements made by her cannot be characterized as slander per se. Thus, the plaintiff must demonstrate special damages on the defamation claim against her. He has not proven special damages in this matter. Furthermore, even if we assumed arguendo that Carolyn Chilson’s statements could be categorized as slander, per se, the plaintiff still could not prevail on his defamation claim against her, because her statements are protected by a conditional privilege that she did not abuse. Moreover, because the plaintiff has failed to prove the essential elements of pecuniary loss, actual harm to reputation and that Carolyn Chilson’s statements were made in the absence of privilege or justification, he cannot prevail against her on his claim for tortious interference with prospective business advantage. Thus, Carolyn Chilson is entitled to summary judgment on both claims against her.

We turn now to the allegations against the Robert Packer Hospital. Count I of those allegations set forth a claim in tortious interference with prospective business advantage. This claim is similar to the claims in tortious interference with prospective business advantage made against Carolyn Chilson and Judy Arena, and is based wholly upon the allegations that Carolyn Chilson and Judy Arena acted as agents of the Robert Packer Hospital. We recapitulate that the plaintiff has not established pecuniary loss in this matter, and thus, will not be permitted to make such an allegation against the Robert Packer Hospital at trial. However, there is sufficient evidence in the record to sustain the plaintiff’s claim that Judy Arena, acting as an employee and agent of the Robert Packer Hospital, caused actual harm to his reputation. In the claim for tortious interference with prospective business advantage made against the Robert Packer Hospital, vis-a-vis the similar claims against the defendants Arena and Chilson, the plaintiff additionally avers that the tortious conduct of the defendants Arena and Chilson caused him to suffer from emotional distress. Concerning Judy Arena, we determine that emotional distress could reasonably be expected to result from her allegedly defamatory statements, uttered while she was acting as an employee and agent of the Robert Packer Hospital. Hence, the Robert Packer Hospital is not entitled to summary judgment pertaining to the plaintiff’s claim for tortious interference with prospective business advantage made against it, and the plaintiff will be allowed to continue on his claims against the Robert Packer Hospital for actual harm to his reputation and for emotional distress.

In their motion for summary judgment the defendants do not even mention the claims set forth in Counts II, III and IV of the complaint against the Robert Packer Hospital. Thus, summary judgment will not be granted on those counts.

Accordingly, we enter the following:

ORDER

And now, June 21, 2000, in accord with the opinion filed this date, the motion for summary judgment filed by the defendants, Carolyn Chilson, Judy Arena and the Robert Packer Hospital, is granted in part and denied in part. Concerning Judy Arena, the motion for summary judgment is denied. Concerning Carolyn Chilson, the motion for summary judgment is granted. Concerning the Robert Packer Hospital, the motion for summary judgment is denied. As a result, on praecipe, the clerk of courts is directed to enter judgment in favor of the defendant Carolyn Chilson, and against the plaintiff on all claims asserted in the complaint filed against the said defendant.

      . The plaintiff signed an employment contract and began working for the Guthrie Clinic in 1992. Surgeons employed by the Guthrie Clinic regularly perform surgeries at the Robert Packer Hospital.

      . Also, 42 Pa.C.S. §8343 provides the following:
      “Burden of proof.
      “(a) Burden of plaintiff — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
      “(1) The defamatory character of the communication.
      “(2) Its communication by the defendant.
      “(3) Its application to the plaintiff.
      “(4) The understanding by the recipient of its defamatory meaning.
      “(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
      “(6) Special harm resulting to the plaintiff from its publication.
      “(7) Abuse of a conditionally privileged occasion.”

      . Special damages are those damages capable of being estimated in money. 81 Pa.D.2d 411. Also, in Pennsylvania, “actual” [real, concrete, identifiable] damages are synonymous with “compensatory” damages. Weider v. Hoffman, 238 F. Supp. 437, 445 (1965). Actual damages are “substantial,” as distinguished from “nominal” [no substantial injury] damages. 25 C.J.S. Damages §2. Actual damages are either “general” or “special.” Weider v. Hoffman, supra at 445; 25 C.J.S. Damages §2. General damages are such as the law implies and presumes to have occurred from the wrong complained of. 25 C.J.S. Damages §2.

      . The plaintiff left the Guthrie Clinic on July 8, 1996 to begin a private practice in the Pittsburgh area.

      . Restatement (Second) of Torts §570 provides the following:
      “One who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other
      “(a) a criminal offense ...
      “(b) a loathsome disease ...
      “(c) matter incompatible with his business, trade, profession, or office...

        “(d) serious sexual misconduct____” See also, Chicarella v. Passant, 343 Pa. Super. 330, 341, 494 A.2d 1109, 1115 (1985).

      . Restatement (Second) of Torts §621 provides the following:
      “One who is liable for a defamatory communication is liable for the proved, actual harm caused to the reputation of the person defamed.”

      . A “conditional privilege,” unique to matters in defamation, exists so long as the privilege is not abused. Chicarella v. Passant, 343 Pa. Super. 330, 337, 494 A.2d 1109, 1113 (1985).

      . In his allegations against Judy Arena and Carolyn Chilson the plaintiff avers that as a result of their actions he remains greatly injured in his good name, credit, esteem, opinion and reputation.