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                             2017 PA Super 159

G. MICHELLE KROLCZYK                         IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

GODDARD SYSTEMS, INC.; NICOLE
WISHARD, T/A THE GODDARD SCHOOL
OF HARRISBURG; GODDARD SCHOOL;
FLH, INC.

                                                  No. 533 MDA 2016


                Appeal from the Order Entered March 3, 2016
              In the Court of Common Pleas of Dauphin County
                  Criminal Division at No(s): 2008 CV 11907


LYDIA DICOLA                                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

GODDARD SYSTEMS, INC., NICOLE
WISHARD, T/A GODDARD SCHOOL OF
HARRISBURG, THE GODDARD SCHOOL,
A FICTITIOUS NAME, AND FLH, INC.

                                                  No. 534 MDA 2016


                Appeal from the Order Entered March 3, 2016
              In the Court of Common Pleas of Dauphin County
                Criminal Division at No(s): 2008 CV 12139-CV


BEFORE: BOWES, OLSON AND STABILE, JJ.

OPINION BY BOWES, J.:                               FILED MAY 23, 2017
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      G. Michelle Krolczyk and Lydia DiCola (“Plaintiffs”), who instituted

these wrongful discharge/defamation lawsuits, appeal from the March 3,

2016 order entering summary judgment in favor of Goddard Systems, Inc.,

Nicole Wishard, t/a the Goddard School of Harrisburg, the Goddard School, a

fictitious name (collectively “Goddard”), and FLH, Inc., which is the

franchisor of Goddard (collectively “Defendants”). We reverse the decision

dismissing their wrongful discharge cause of action, but affirm the grant of

summary judgment as to the defamation claim.

      Ms. Wishard owned and operated Goddard, a private school, and was

the president of FLH, Inc.     Ms. Krolczyk is a state certified pre-school

educator through the academic board of private schools in Pennsylvania.

Ms. DiCola is a Florida and Texas certified early childhood education teacher.

We have consolidated the cases for purposes of appellate review as they

were instituted based upon the same series of events, which occurred when

Plaintiffs were co-instructors in a classroom at Goddard.

      In late 2007 and early 2008, Plaintiffs were working as pre-school

teachers for Goddard co-instructing children aged three and four in a

classroom known as the Junior Genius classroom. Ms. Wishard dismissed

both women on February 14, 2008, and, the following day, a letter was

disseminated to their students’ parents regarding their termination. In their

lawsuits, Plaintiffs alleged that they were wrongfully discharged after

informing Ms. Wishard that they were going to report, as required by

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Pennsylvania law, that they suspected that one of their students, A.G., was

being abused or neglected. They averred that the letter given to the parents

was defamatory.     Their cases were dismissed based upon the grant of

summary judgment.

      The record indicates the following. A.G., a student in the Junior Genius

classroom, was four years old when the pertinent events transpired. A.G.’s

mother was Jennifer G., who was the Director of Education for Goddard and

who supervised Plaintiffs. A.G. was developmentally delayed and extremely

aggressive.   Plaintiffs delineated that, during the waning months of 2007,

A.G. engaged in the following behavior in their classroom: 1) called the

teachers and other students profane names; 2) repeatedly threatened to

shoot and kill or to stab the teachers and other students; 3) on numerous

occasions, physically assaulted and threw objects at teachers as well as

other students; 4) bit Plaintiffs and their co-workers with sufficient force to

break the skin and leave welts and bruises; 5) otherwise terrorized students

to such an extent that those students no longer wanted to attend Goddard;

6) continually defecated on himself and resisted efforts to clean up the

feces; and 7) physically and verbally prevented the teachers from instructing

any of their students. Based upon A.G.’s conduct, Plaintiffs suspected that

he was being either neglected or abused.       Jennifer G. admitted that her

son’s chronic bowel incontinence and hyper-aggression supported Plaintiffs’

suspicion that he was being abused or neglected.      Specifically, Jennifer G.

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conceded that “late stage potty training and inappropriate aggression” were

“indicators” of a “possibility of abuse” and that her son A.G. had both of

these “red flags.” Deposition of Jennifer G., 4/13/11, at 78.

      Prior to December 2007, Plaintiffs sought help with A.G. from Ms.

Wishard, suggesting that intervention from a state agency might be

appropriate.    Ms. Wishard failed to undertake any affirmative action, and

instead, directed Plaintiffs neither to contact any child welfare agency nor to

report that they suspected that A.G. was being abused or neglected. Since

the   above-delineated   inappropriate   behavior   neither   abated   nor   was

addressed, in December 2007, Plaintiffs began to keep a daily journal to

document A.G.’s conduct and their efforts to redirect his aggressive

behavior.      The journal indicated the following.     A.G. urinated and/or

defecated himself December 4th, December 5th, December 14th, December

17th, and, following the holiday break, on January 7th, January 9th, January

10th, January 11th, January 14th, January 16th, January 23rd, January 25th,

January 29th, January 31st, February 4th, and February 6th, 2008. On many

of these occasions, A.G. defecated in his pants more than once.

      On December 5th, A.G. threatened violence against children and adults

and was very disruptive.    On December 14th, he tormented and physically

harassed a classmate, and on December 17th, he threw wooden blocks at a

sleeping child.    On that occasion, A.G. was restrained in the presence of

Jennifer G., who immediately removed A.G. from the classroom. On January

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8th, A.G. kicked, scratched, and tried to bite Ms. Krolczyk several times and

informed her that he was “going to get a machine gun and load it with

bullets and blow her head off.” Deposition of Jennifer G., 4/13/11 at Exhibit

D-12 (the “Journal”) at 368. He also threw his shoes at her and said that he

was going to break her nose. The following day, A.G. again threatened to

kill Ms. Krolczyk as well as another student, and punched and scratched Ms.

Krolczyk on the face. A.G. also pulled Ms. DiCola’s hair and kicked her. He

was restrained on this occasion.

     On January 11th, A.G. struck a child with a toy, and was again

restrained; Ms. Krolczyk told Jennifer G. about this incident.   On January

22nd, A.G. threw his shoes at Ms. Krolczyk and called her profane names.

On January 23rd, A.G.’s father dragged him from the classroom as A.G. was

crying. On January 25th, A.G. called Ms. Krolczyk profane names and told

Ms. DiCola, who was pregnant, that he was going to take a knife and remove

her baby and that his father was going to kill her with his gun.     He also

informed Ms. Krolczyk that he was going to kill the police so they could not

“get his Mom.” Journal at 384.

     On January 28th, A.G. broke the toilet seat, threw water on the

bathroom floor, and began to roll around.     On February 4 th, A.G. bit Ms.

Krolczyk in her forearm, leaving a mark. On the morning of February 5 th,

A.G. began to scream and flail his arms, and, when Ms. Krolczyk carried him

from the room, he buried his teeth in her forearm. He also bit her later that

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afternoon.     On February 6th, A.G. threatened students and teachers with

physical violence, screamed, and would not follow directions.

     Thursday, February 7, 2008, was A.G.’s last day under Plaintiffs’

supervision.    A.G. began the day by continually defecating in his pants.

Since his hostile behavior began to escalate, another employee at Goddard,

Ms. Angie, whose last name is not revealed in the record, offered to help to

control him.    During naptime, A.G. repeatedly refused to lie down and be

quiet. He was playing with a toy, and each time A.G. engaged in disruptive

behavior, Ms. Krolczyk told him that she would take it away from him. As

A.G. persisted in his actions, the toy was removed. A.G. immediately began

to act out inappropriately. Ms. Angie held down his feet, and Ms. Krolczyk

restrained him by hugging him. Journal at 408. Becoming more agitated,

A.G. attempted to bite Ms. Krolczyk, and, when Ms. DiCola intervened, he bit

her forearm and refused to release his teeth from her flesh, which began to

bleed.

     The journal continued that Ms. DiCola “attempted to activate the reflex

of tilting your head back by gently pressing on the nerve cluster underneath

his nose, against his lip to force him to release his bite.”    Journal at 409.

A.G. was not affected by this action, and Ms. Angie and Ms. Krolczyk “helped

break his grip” on Ms. DiCola’s arm. Id. All three women, Ms. Angie, Ms.

Krolczyk, and Ms. DiCola, held A.G. in order to calm him down. The journal

delineated that, during this episode, A.G. was “completely out of control,”

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and appeared to be in a “full-blown, adrenaline-fueled rage” and “out of his

mind and body.”     Id.   Eventually, the three women quieted A.G. and laid

him down on his mat next to the sleeping children.        Five minutes later,

Jennifer G. came into the classroom and was told about the incident. She

listened and nodded and then left with A.G., who did not return to school the

following day.

      On Monday, February 11, 2008, Plaintiffs gave Ms. Wishard their

journal.   Deposition of Lydia DiCola, 5/8/13, at 63.   Since A.G.’s behavior

gave rise to a suspicion by Plaintiffs that he was being abused or neglected,

on February 13, 2008, Ms. Krolczyk called the hotline of the Pennsylvania

Department of Education and asked how she and Ms. DiCola should proceed

to report their suspicion of abuse or neglect.   Plaintiffs were instructed to

meet with Ms. Wishard and inform her about their shared suspicion of abuse

or neglect.   They were also told that they should report their suspicion of

abuse or neglect by filing a formal report of suspected child abuse with the

local department of the Pennsylvania Department of Public Welfare.

      On February 14, 2008, Plaintiffs met with Ms. Wishard and informed

her that A.G.’s behavior was indicative that he was being abused or

neglected at home. They also notified Ms. Wishard that they had contacted

the Department of Education, and they conveyed to Ms. Wishard that they

intended to formally report to the Department of Public Welfare that they




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suspected there was abuse or neglect in A.G.’s home.            Plaintiffs were

mandated reporters of suspected abuse under Pennsylvania law.

      Within hours of the February 14, 2008 meeting, Ms. Wishard called

Plaintiffs at home and said that they were fired. Ms. Krolczyk testified that

Ms. Wishard informed her that she was being discharged, “Based on the

conversation we had this afternoon and your decision [i.e., to report

suspected abuse or neglect of A.G.], that your services are just no longer

needed here, we’ll call today your last day and go our separate ways.”

Deposition of G. Michelle Krolczyk, 5/8/13, at 150. Ms. Wishard thereafter

sent a letter to the parents delineating that Plaintiffs were terminated “for

various reasons” but Ms. Wishard assured them “that protecting both the

children’s interest as well as the parents’ interest as well as the good of this

school are the deciding factors for my decision.” Deposition of Jennifer G.,

4/13/11, at Exhibit I.

      During her deposition, Ms. Wishard claimed that Plaintiffs were

dismissed for having “inappropriate contact with a student” by restraining

A.G. Deposition of Nicole Wishard, 6/2/10, at 40, 51. She relied specifically

on the February 7, 2008 incident, as described in the journal, when A.G. was

hugged by Ms. Krolczyk, Ms. DiCola had applied pressure to A.G.’s upper lip,

Ms. Krolczyk and Ms. Angie had removed his teeth from Ms. DiCola’s

bleeding arm, and all three women held him in order to calm him down.




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       Ms. Wishard admitted that the journal indicated that Plaintiffs

restrained A.G. “in order to prevent him from hurting himself, a teacher, or

another child” and that there was no indication that Plaintiffs physically

abused A.G. in any manner by hitting, beating, or kicking him.         Id. Ms.

Wishard also acknowledged that the journal indicated that Ms. Angie was

involved in restraining A.G., but that she was not discharged, ostensibly

because Ms. Wishard interviewed Ms. Angie and Ms. Angie denied restraining

A.G.   While Ms. Wishard asserted that she would fire any teacher who

restrained a student, cross-examination indicated that there were other

instances of restraint where teachers were not fired.          When deposed,

Jennifer G. acknowledged that another teacher, J.S., had not been

terminated even though she pinched a child’s forearm.            Deposition of

Jennifer G., 4/13/11, at 23-24. Indeed, Jennifer G. herself restrained a child

and was not dismissed. Id. at 52.

       After discovery was conducted, Defendants filed a motion for summary

judgment. They asserted that Plaintiffs’ wrongful discharge claims were not

viable because Plaintiffs were fired for a valid, legitimate, and non-prohibited

reason, as outlined in Ms. Wishard’s deposition, i.e., they restrained A.G. in

violation of school policy. Defendants also averred that the letter was not

defamatory.    The trial court granted summary judgment on the wrongful

discharge claims by finding that, in accordance with the testimonial

deposition of Ms. Wishard, Defendants had offered a “separate, plausible and

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legitimate reason” for the terminations.             Trial Court Opinion, 3/3/16, at

(unnumbered page) 5.           It rejected the position that the reason was pre-

textual.1      In    concluding     that       Defendants   “proffered   a   legitimate

nondiscriminatory reason for terminating Plaintiff[s’] employment, the court

ruled that Plaintiffs were dismissed solely because they “had been physically

restraining a four-year-old boy for several months[.]” Id. at (unnumbered

page) 6.     In dismissing the defamation count, the trial court noted that

Plaintiffs had not incurred special harm and apparently decided that the

letter sent to parents was not defamatory per se. Id. at (unnumbered page)

9 (“A fair reading of this letter shows that it is not fairly calculated to harass

Plaintiff[s’] reputation.”).

       In this appeal from the grant of summary judgment, Plaintiffs raise

these averments:

       A. Did the lower court err in dismissing Appellant[s’] claim[s] for
          wrongful termination when there were material issues of fact
          vital to the adjudication of said claims, including, but not
          limited to, a temporal proximity between the protected
          activity (i.e., reporting suspected abuse) and the adverse job
          action (i.e., termination) which could be measured in minutes
          and/or hours, as well as material issues of fact which could
          establish that the asserted “legitimate” basis for termination
          was, in fact, a post-hoc pretext?

____________________________________________


1
  For inexplicable reasons, in deciding that Defendants offered a legitimate,
non-pretextual reason for firing Plaintiffs, the trial court relied upon federal
law disseminated in the area of age, race, or sex discrimination rather than
the rules applicable to grant of summary judgment in Pennsylvania.



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      B. Did the lower court err, as a matter of law, when it violated
         the Nanty-Glo rule in entering judgment against Appellant[s]
         on the basis of the Appellee[s’] own deposition testimony
         concerning the facts and circumstances giving rise to
         Appellee[s’] decision to terminate Appellant[s’] employment?


      C. Did the lower court erred [sic] in entering judgment against
         Appellant[s’] “defamation” claim[s] when the facts of the case
         establish that Appellees published a false and misleading
         letter which adversely affected Appellant[s’] ability to obtain
         employment in [their] chosen f[ield]?

Appellants’ briefs at 2.

      We first set forth the principles applicable to grant of summary

judgment in Pennsylvania. As we observed in Nationwide Mut. Fire Ins.

Co. v. Modern Gas, 143 A.3d 412, 415 (Pa.Super. 2016) (quoting Atcovitz

v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002)), our

Supreme    Court   has     often   admonished   that   “summary   judgment   is

appropriate only in those cases where the record clearly demonstrates that

there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law.” See Pa.R.C.P. 1035.2(1).

Moreover, when any court considers a motion for summary judgment, it is

required to accept all the facts of record as well as the reasonable inferences

from those facts in favor of the non-moving party.        Nationwide, supra.

Additionally, the trial court “must resolve all doubts as to the existence of a

genuine issue of material fact against the moving party, and, thus, may only




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grant summary judgment where the right to such judgment is clear and free

from all doubt.” Id. at 415 (citation and quotation marks omitted).

      As the appellate court, we are permitted to “reverse a grant of

summary judgment if there has been an error of law or an abuse of

discretion.” Id. Since the question of “whether there are no genuine issues

as to any material fact presents a question of law,” we engage in a standard

of review that is de novo, and are not required to “defer to the

determinations made by the lower tribunals.” Id. “If there is evidence that

would allow a fact-finder to render a verdict in favor of the non-moving

party, then summary judgment should be denied.” Id.

      We will address together Plaintiffs’ first two claims, which pertain to

the grant of summary judgment as to the wrongful discharge causes of

action.   It is evident herein that, in resolving the motion for summary

judgment as to wrongful discharge, the trial court did not view the facts in

the light most favorable to Plaintiffs, and, instead, accepted the version of

the facts proffered by Defendants. As more fully delineated infra, the trial

court also violated the well-established Nanty-Glo rule.

      We first examine whether Plaintiffs have a viable wrongful discharge

cause of action. In Pennsylvania, absent an express agreement, there is a

presumption that any employment relationship is at-will, and thus can be

“terminated by either party at any time, for any reason or for no reason.”

Wakeley v. M.J. Brunner, Inc., 147 A.3d 1, 5 (Pa.Super. 2016) (citation

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omitted). In the seminal decision in Geary v. United States Steel Corp.,

319 A.2d 174 (Pa. 1974), our Supreme Court articulated that there is a

common law wrongful discharge cause of action in Pennsylvania for an at-

will employee if the employee’s firing violated public policy. However, the

Court concluded that no public policy was implicated in Geary’s termination.

      Subsequently, in Shick v. Shirey, 716 A.2d 1231 (Pa. 1998), the

Supreme Court first announced a public policy exception to the at-will

employment doctrine. Therein, the Court held that, in Pennsylvania, an at-

will employee asserts a viable common law cause of action for wrongful

discharge when the employee maintains that he was fired because he

exercised his statutory right to file a workers’ compensation claim. Our High

Court ruled that the lawsuit could be brought since terminating an employee

for exercising his or her legal right to workers’ compensation violated

Pennsylvania public policy. See also Rothrock v. Rothrock Motor Sales,

Inc., 883 A.2d 511 (2005) (holding that it violates public policy for a father

to be dismissed for failing to prevent his son from obtaining workers’

compensation benefits); Highhouse v. Avery Transportation, 660 A.2d

1374 (Pa.Super. 1995) (concluding that an employee was wrongfully

discharged after filing an unemployment compensation claim); Reuther v.

Fowler & Williams, Inc., 386 A.2d 119 (Pa.Super. 1978) (ruling that a

cause of action for wrongful discharge was present where employee claimed

that he was fired for performing jury duty).

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      The decision announced in Field v. Philadelphia Elec. Co., 565 A.2d

1170 (Pa.Super. 1989), is dispositive. Therein, plaintiffs, who were at-will

employees, filed an action against their employer raising, inter alia, a

wrongful discharge cause of action. We concluded that the cause of action

survived a demurrer since plaintiffs had set forth that their dismissals were a

violation of a recognized public policy. In Field, the employees maintained

that they were fired because one of them reported a violation of federal law

to the federal agency charged with oversight of the matter.               They

additionally averred that the reporter was statutorily-required to report the

employer’s violation of the applicable federal law.

      Since the employees alleged that they were all terminated because

one of them “performed a duty he was required to perform under federal

law,” the Field Court ruled that they had stated a claim for wrongful

discharge. Id. at 1180. We observed that the federal law in question was

“designed to protect the health and safety of the public” and that the

employee’s action of reporting the employer’s violation of the federal

mandates “directly advanced the public concerns addressed” by the statute

in question. Id.

      In this case, Plaintiffs were mandated reporters of suspected child

abuse under 23 Pa.C.S. § 6311(a). Section 6311, which is entitled

“mandated reporters,” provides: “The following adults shall make a report of

suspected child abuse, subject to subsection (b), if the person has

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reasonable cause to suspect that a child is a victim of child abuse: . . . [a]

school employee [or a]n employee of a child-care service who has direct

contact with children in the course of employment.”        23 Pa.C.S. § 6311

(a)(4), (5). Subsection (b), basis to report, also applies herein:

      (1) A mandated reporter enumerated in subsection (a) shall
      make a report of suspected child abuse in accordance with
      section 6313 (relating to reporting procedure), if the mandated
      reporter has reasonable cause to suspect that a child is a victim
      of child abuse under any of the following circumstances:

            (i) The mandated reporter comes into contact with
            the child in the course of employment, occupation
            and practice of a profession or through a regularly
            scheduled program, activity or service.

            (ii) The mandated reporter is directly responsible for
            the care, supervision, guidance or training of the
            child, or is affiliated with an agency, institution,
            organization, school, regularly established church or
            religious organization or other entity that is directly
            responsible for the care, supervision, guidance or
            training of the child.

23 Pa.C.S. § 6311.

      Plaintiffs pled and presented sufficient proof that A.G.’s behavioral

issues caused them to suspect that he was a victim of abuse or neglect.

They articulated that they believed that A.G.’s problems with soiling himself

and physically hostile behavior indicated that he may have been neglected or

abused.   Plaintiffs also testified that they contacted the Department of

Education, which confirmed that these behaviors were indicators of

suspected child abuse or neglect. Finally, Jennifer G. admitted that her son’s



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hyper-aggressive behavior and bowel movements in his clothing were red

flags for possible child abuse or neglect.

        Thus, Plaintiffs adduced sufficient proof to establish that they were

required, under Pennsylvania law, to report their suspicion that A.G. was

being    neglected   or   abused.    They     also   presented   testimonial   and

circumstantial evidence to support their position that they were discharged

solely because they planned to report, as required by the statute, that they

suspected that there was abuse or neglect in A.G.’s home. The most crucial

aspect of Plaintiffs’ proof about the reason for the terminations came from

Ms. Krolczyk’s testimony, which we are required to credit under the

standards applicable to summary judgment.             Ms. Krolczyk’s deposition

indicated that Ms. Wishard informed Ms. Krolczyk that she was being

dismissed, “Based on the conversation we had this afternoon and your

decision [i.e., to report suspected abuse or neglect of A.G.], that your

services are just no longer needed here, we’ll call today your last day and go

our separate ways.”       Deposition of G. Michelle Krolczyk, 5/8/13, at 150.

This proof, standing alone, prevents the grant of summary judgment in favor

of Defendants.

        However, there was additional, circumstantial evidence that Plaintiffs

were not fired for the reason proffered by Ms. Wishard, but due to their

articulated intent to report suspected abuse or neglect.            Even though

Plaintiffs were purportedly terminated for engaging in restraint, Ms. Wishard

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and Jennifer G. admitted that other teachers were not discharged after they

had   restrained     children,    including    a   teacher   who   pinched   a   child.

Significantly, Ms. Angie was not fired despite the fact that the journal

indicated that she actively participated in restraining A.G. on February 7,

2008.2

       Plaintiffs’ evidence also included the following. Jennifer G. was present

on December 17, 2007, and observed Plaintiffs restraining A.G. They were

not fired then. Jennifer G. was told about an incident occurring on January

11, 2008, when A.G. was restrained. Plaintiffs were not terminated at that

time. Plaintiffs specifically told Jennifer G. about the events of February 7,

2008, immediately after they occurred.             Plaintiffs were not discharged on

February 7, 2008. Likewise, Plaintiffs were not terminated on February 11,

2008, when they gave Ms. Wishard the journal, which documented instances

of restraint.       Instead,     Plaintiffs were    fired on February 14, 2008,

immediately after they told Ms. Wishard that they were going to file a report

that they suspected A.G. was being abused or neglected.

       Thus, Plaintiffs’ proof was sufficient to establish that the reason for

their discharge was their articulation that they, as mandated reporters, were

____________________________________________


2
 We note that, for purposes of a summary judgment determination, we are
not permitted to credit Ms. Wishard’s representation that she did not fire Ms.
Angie because she interviewed Ms. Angie and Ms. Angie denied holding down
A.G.



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going to file a report with the Department of Public Welfare that they

suspected that A.G. was being abused or neglected. Child abuse and neglect

are matters of great public concern, and are advanced by the requirement

that certain persons report suspected abuse.       Simply put, if a mandated

reporter could be fired for articulating an intent to report suspected abuse, it

would have a chilling effect on the very purpose for the statute in question.

Plaintiffs’ decision to file a report promoted the statute’s public policy of

protecting children.   Plaintiffs have a viable cause of action for wrongful

discharge based upon public policy, and they presented sufficient evidence

that their discharge was based upon the implicated public policy.

      Not only did the trial court ignore the evidence supporting the position

that Plaintiffs were terminated for telling Ms. Wishard that they were going

to report suspected child abuse or neglect, it also credited the testimonial

deposition of Ms. Wishard that Plaintiffs were not fired for that reason. As

noted, Ms. Wishard claimed that Plaintiffs were dismissed for violating school

policy against restraining children. We concur with Plaintiffs’ argument that

the grant of summary judgment herein violated the well-ensconced Nanty-

Glo rule.   In Nanty–Glo v. American Surety Co., 163 A. 523, 524 (Pa.

1932), the Supreme Court reversed the entry of a directed verdict, and held

that, however “clear and indisputable may be the proof when it depends on

oral testimony, it is nevertheless the province of the jury to decide, under

instructions from the court, as to the law applicable to the facts.”

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       Nanty–Glo is applicable in the summary judgment context, and

summary judgment may not be premised upon the acceptance of the

testimonial proof offered by the moving party.         As our Supreme Court

articulated in Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 154 (Pa.

2009) (quoting Goodrich–Amram 2d § 1035.1, p. 423.), summary judgment

serves to avoid “a useless trial but is not, and cannot, be used to provide for

trial by affidavits or trial by depositions.”   The admonition that “trial by

testimonial affidavit is prohibited ‘cannot be emphasized too strongly.’”

Stimmler, supra at 154 (partially quoting Curran v. Philadelphia

Newspapers, Inc., 439 A.2d 652, 662 (Pa. 1981)).

       Herein, the trial court claimed that that it was not violating the Nanty-

Glo rule because the journals, documentary proof, established that Plaintiffs

restrained A.G. The trial court’s reasoning is misguided. The journal does

not set forth why Plaintiffs were fired; it merely proved the fact of restraint.

It was Ms. Wishard’s deposition testimony that established the purported

reason that she dismissed Plaintiffs.         In short, in granting summary

judgment, the court not only ignored the above-delineated proof presented

by Plaintiffs, it also credited Ms. Wishard’s testimonial assertion that

Plaintiffs were terminated due to the fact that they engaged in restraining

A.G.   The trial court was simply not permitted to accept Ms. Wishard’s

position on the reason for Plaintiffs’ termination due to both the proof

presented by Plaintiffs and the application of the Nanty-Glo rule.

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      Defendants do not contest that Plaintiffs stated viable causes of action

for wrongful discharge if they were fired for stating that they were going to

report that they suspected the presence of abuse or neglect in A.G.’s

household. Their position is that Plaintiffs were dismissed not as a result of

this lawful activity but due to “separate, plausible, and legitimate reasons.”

Appellees’ briefs at 16.    They continue that Plaintiffs’ terminations “had

nothing at all to do with [their] stated intention of reporting [their]

suspicions of child abuse,” and instead, that they were terminated based on

their restraint of a child in violation of school policy. Id. Defendants posit

that their separate, plausible, and legitimate reason for firing Plaintiffs

defeats Plaintiffs’ wrongful discharge causes of action. Id. at 19. They also

parrot the trial court’s reasoning that Nanty-Glo was not violated herein

since the journal established the existence of restraint.

      We have discredited these positions in our analysis, supra. To accept

the assertion that Plaintiffs were discharged due to their restraint of A.G.,

one must credit Ms. Wishard’s testimonial evidence presented in her

deposition. This is prohibited by the Nanty-Glo rule. More importantly, to

conclude that Ms. Wishard dismissed Plaintiffs based upon restraint, one

must discredit Ms. Krolczyk’s deposition, wherein she stated that Ms.

Wishard told her that the termination was based upon the February 14, 2008

conversation regarding her decision to report.     This would also violate the

precepts applicable in the summary-judgment context, where one must

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accept all the evidence presented by the nonmoving party as true. We thus

reject Defendants’ arguments.

     In conclusion, Plaintiffs adduced sufficient proof to go to the jury on

the question of whether they were wrongfully discharged because they were

intended, as mandated reporters, to file a report of suspected abuse or

neglect in A.G.’s household.    The jury must decide whether to credit Ms.

Wishard’s contrary explanation for Plaintiffs’ dismissals. We therefore hold

that summary judgment was improperly granted on Plaintiffs’ wrongful

termination causes of action.

     We now address Plaintiffs’ position that their defamation causes of

action should have survived summary judgment. The elements of a cause of

action in defamation are codified in § 8343 of The Uniform Single Publication

Act, 42 Pa.C.S. §§ 8341-8345, as follows:


     (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 publication 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.



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              (6)    Special harm resulting to the plaintiff from its
                     publication.

              (7)    Abuse of a conditionally privileged occasion.

42 Pa.C.S. § 8343.

        Herein, Plaintiffs have conceded that they did not suffer special harm

from the publication.         Ms. Krolczyk obtained other employment as an

educator, and Ms. DiCola elected to cease working. Appellants’ briefs at 36-

37. However, this statute “does not overrule the long line of cases in our

Supreme Court which hold that a slander per se is actionable without proof

of special damage.” Walker v. Grand Cent. Sanitation, Inc., 634 A.2d

237, 242 (Pa.Super. 1993) (adopting Restatement of Torts as applicable law

regarding defamation per se).          Under the Restatement (Second) of Torts,

defamation per se occurs when the statement ascribes to the plaintiff any of

the following: commission of a criminal offense, a loathsome disease, serious

sexual misconduct, or conduct or characteristics that adversely affect the

plaintiff’s fitness to properly conduct his profession, trade or business.

Restatement (Second) of Torts § 570.3              See Livingston v. Murray, 612

____________________________________________


3
    That section states:

     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

(Footnote Continued Next Page)


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A.2d 443 (Pa.Super. 1992) (holding a statement defamatory if it blackens or

injures a person in his business or professional reputation).

      As we delineated in Kurowski v. Burroughs, 994 A.2d 611, 617

(Pa.Super. 2010) (citations omitted), since the plaintiff has the burden of

proving the defamatory character of the communication under the Uniform

Single Publication Act, it “is the function of the court to determine whether

the challenged publication is capable of a defamatory meaning. If the court

determines that the challenged publication is not capable of a defamatory

meaning, there is no basis for the matter to proceed to trial.” Accord Baker

v. Lafayette College, 532 A.2d 399, 402 (Pa. 1987) (“In order for a
                       _______________________
(Footnote Continued)

      (a)    a criminal offense, as stated in § 571, or

      (b)    a loathsome disease, as stated in § 572, or

      (c)    matter incompatible with his business, trade, profession,
             or office, as stated in § 573, or

      (d)    serious sexual misconduct, as stated in § 574.

Restatement (Second) of Torts § 570. These lawsuits implicate § 573, which
outlines:

      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.

Restatement (Second) of Torts § 573.




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statement to be considered libelous or slanderous, the trial court must, in

the first instance, make a determination as to whether the communication

complained of can be construed to have the defamatory meaning ascribed to

it by the complaining party.”).

      In the present case, the letter in question reported to the parents that

Plaintiffs were discharged “for various reasons,” but Ms. Wishard assured

them “that protecting both the children’s interest as well as the parents’

interest as well as the good of this school are the deciding factors for my

decision.” Deposition of Jennifer G., 4/13/11, at Exhibit I. The statement

accused Plaintiffs of no conduct that would impugn or blacken their

professional reputation; it merely reported that they were fired for

undisclosed reasons and that the best interests of the children, the parents,

and the school were behind the terminations. The letter did not report that

Plaintiffs were poor teachers or otherwise suggest that they were not

competent professionals. We therefore concur with the trial court that the

statements in the letter were not defamatory per se.

      Plaintiffs counter that the communication that they were terminated

for the “good of the children” implicitly impugned their professional

reputation.   Appellants’ briefs at 25-36.   Thus, they premise their right to

recovery on an innuendo that an action taken for the best interest of the

children castigated their teaching abilities.     “The question of whether

innuendo is actionable as defamatory is a question of law.” ToDay’s

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Housing v. Times Shamrock Communications Inc., 21 A.3d 1209, 1215

(Pa.Super. 2011). When this Court is confronted with a question of law, our

standard of review is de novo and the scope of review is plenary. Bowling

v. Office of Open Records, 75 A.3d 453 (Pa. 2013). In order to assess

whether the statement is capable of the defamatory meaning imputed to it

by a plaintiff, the “court must view the statements in context” to ascertain

“the impression it would naturally engender, in the minds of the average

persons among whom it is intended to circulate.” Kurowski, supra at 617.

     In this respect, we concur with the trial court that “for the good of the

children” did not suggest that Plaintiffs were not capable teachers and did

not have the implication that Plaintiffs seek to have us make.     Hence, we

affirm its decision to grant summary judgment in favor of Defendants as to

the defamation count.

     The March 3, 2016 Order is affirmed in part and reversed in part.

Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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