BENTLEJEWSKI v. WERNER ENTERPRISES, INC. et al
Filing
39
MEMORANDUM OPINION re 30 MOTION for Summary Judgment filed by DRIVERS MANAGEMENT, LLC., WERNER ENTERPRISES, INC. Signed by Judge David S. Cercone on 7/8/15. (jmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES BENTLEJEWSKI,
Plaintiff,
v.
WERNER ENTERPRISES, INC. and
DRIVERS MANAGEMENT, LLC,
a wholly owned subsidiary of WERNER
ENTERPRISES, INC. ,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
2:13cv1385
Electronic Filing
MEMORANDUM OPINION
July 8, 2015
I.
INTRODUCTION
Plaintiff, James Bentlejewski (“Plaintiff” or “Bentlejewski’), filed a three (3) count
Complaint alleging (1) Intentional Interference with Existing Contractual Relationship; (2) Trade
Libel; and (3) Defamation Per Se, against Defendants, Werner Enterprises, Inc. (“Werner”) and
Drivers Management, LLC (“DM”) (collectively “Defendants” or “Werner”). Werner has filed a
motion for summary judgment, Bentlejewski has responded and the matter is now before the
Court.
II.
STATEMENT OF THE CASE
Bentlejewski was employed as truck driver by Werner from May 9, 2011, until he
voluntarily left his employment on May 14, 2012. Defendants’ Concise Statement of Material
Facts (“Def. CSMF”) ¶ 1. On May 16, 2012, Schneider National, Inc. (“Schneider”) extended
Bentlejewski a conditional offer of employment as a driver associate. Plaintiff’s Response to
Concise Statement of Material Facts (“Pl. RCSMF”) ¶ 9, Ex. I. On May 20, 2012, Bentlejewski
began training for his position at Schneider. Def. CSMF ¶ 3. On or about May 22, 2012, at
Schneider’s request, Werner provided an Employment Verification which identified four (4)
minor accidents involving Bentlejewski which occurred during his employment with Werner.
Def. CSMF ¶ 5. By email dated May 25, 2012, Schneider informed Bentlejewski that he would
not be considered for a driving position “based in whole or in part on information contained in a
consumer report furnished by HireRight.” Def. CSMF ¶ 7.
On or about March 11, 2013, Bentlejewski began probationary employment with Vitran
Express, Inc. (“Vitran”). Def. CSMF ¶ 13. Pursuant to Federal Motor Carrier Safety
Administration (“FMCSA”) regulations, Vitran requested Bentlejewski’s accident and driving
history report for the previous three (3) years from his former employers. Def. CSMF ¶ 14. On
June 10, 2013, Werner provided an Employment Verification which identified four (4) minor
accidents involving Bentlejewski which occurred during his employment. Def. CSMF ¶ 15. On
June 12, 2013, Vitran sent Bentlejewski a notice of probationary employment separation
indicating that his employment would not be continued. Def. CSMF ¶ 17.
Bentlejewski then filed this lawsuit in September 2013, alleging that the Employment
Verifications sent to Schneider and Vitran contained false and misleading information. Def.
CSMF ¶ 19.
III.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall
be granted when there are no genuine issues of material fact in dispute and the movant is entitled
to judgment as a matter of law. To support denial of summary judgment, an issue of fact in
dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could
base a verdict for the non-moving party and one which is essential to establishing the claim.
2
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary
judgment, the court is not permitted to weigh the evidence or to make credibility determinations,
but is limited to deciding whether there are any disputed issues and, if there are, whether they are
both genuine and material. Id. The court’s consideration of the facts must be in the light most
favorable to the party opposing summary judgment and all reasonable inferences from the facts
must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West
Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358,
361 (3d Cir. 1987).
When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of
the Rule, the nonmoving party must come forward with “specific facts showing that there is a
genuine issue for trial.” FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on
unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a
summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond
Aby pointing to sufficient cognizable evidence to create material issues of fact concerning every
element as to which the non-moving party will bear the burden of proof at trial.@ Simpson v. Kay
Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v.
Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994)).
3
IV.
DISCUSSION
A.
Defamation
“Defamation, of which libel1, slander, and invasion of privacy are methods, is the tort of
detracting from a person’s reputation, or injuring a person’s character, fame, or reputation, by
false and malicious statements.” Mzamane v. Winfrey, 693 F. Supp. 2d 442, 476 (E.D. Pa. 2010)
(quoting Joseph v. Scranton Times L.P., 959 A.2d 322, 334 (Pa. Super. 2008)). A plaintiff
invoking Pennsylvania law in an action for defamation has the burden of proving: (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 plaintiff; (6) special harm
resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged
occasion. See 42 PA. CON. STAT. ANN. § 8343(a); see also Mzamane v. Winfrey, 693 F. Supp. 2d
at 476-477.
A statement is considered libel or defamation per se when the “speaker imputes to
another conduct, characteristics, or a condition that would adversely affect[him in his] lawful
business or trade . . . .” Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 237, 241 (Pa. Super.
1993). A statement is defamation per se as an accusation of business misconduct if it “ascribes to
another conduct, characteristics or a condition that would adversely affect his fitness for the
proper conduct of lawful business.” Smith v. IMG Worldwide, Inc., 437 F. Supp. 2d 297, 308
(E.D. Pa. 2006) (quoting Clemente v. Espinosa, 749 F. Supp. 672, 677-678 (E.D. Pa. 1990)). The
1
A written defamation is considered libel. See Joseph v. Scranton Times L.P., 959 A.2d 322,
334 (Pa. Super. 2008) (“A ‘libel’ is any malicious publication that is written, printed, or painted,
or procured to be written, printed, or painted, and which tends to expose a person to contempt,
ridicule, hatred, or degradation of character.”).
4
statement must be “peculiarly harmful to one engaged in [that] business or profession.
Disparagement of a general character, equally discreditable to all persons, is not enough . . . .”
Clemente v. Espinosa, 749 F. Supp. at 678. The statements that Bentlejewski alleges constitute
defamation fall into this category2.
Even if a plaintiff could establish the elements of defamation, Pennsylvania law shields
the publisher of defamatory statements from liability if the statement “was made subject to a
privilege, and the privilege was not abused.” Moore v. Cobb-Nettleton, 889 A.2d 1262, 1268 (Pa.
Super. 2005). A conditional privilege applies “if the publisher reasonably believes that the
recipient shares a common interest in the subject matter and is entitled to know the information
conveyed.” Am. Future Sys., Inc. v. Better Bus. Bureau, 923 A.2d 389, 393 (Pa. 2007). The
defendant has the burden of proving the privileged character of the defamatory statement. 42 PA.
CON. STAT. ANN. § 8343(b).
If a defendant carries its burden to show that a communication is conditionally privileged,
the burden shifts to the plaintiff to establish that the defendant abused its conditional privilege.
Miketic v. Baron, 675 A.2d 324, 329 (Pa. Super. 1996). An abuse of privilege occurs if “the
publication is actuated by malice or negligence, is made for a purpose other than that for which
the privilege is given, or to a person not reasonably believed to be necessary for the
accomplishment of the purpose of the privilege, or included defamatory matter not reasonably
2
A plaintiff in a defamation per se action need not make a showing of special damages, i.e.,
out-of-pocket expenses borne by the plaintiff due to the defamation, he or she must demonstrate
general damages caused by the statement i.e., proof that one’s reputation was actually affected
by defamation or that one suffered personal humiliation, or both. Synygy, Inc. v. Scott- Levin,
Inc., 51 F. Supp. 2d 570, 581 (E.D. Pa. 1999); Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super.
2000); see also Pennoyer v. Marriott Hotel Services, Inc., 324 F. Supp. 2d 614, 619 (E.D. Pa.
2004) (“The Restatement (Second) of Torts requires a victim of slander per se to make some
showing of general damages . . . .”)
5
believed to be necessary for the accomplishment of the purpose.” Moore v. Cobb-Nettleton, 889
A.2d at 1269.
The Court, in this instance, finds no need to perform a detailed analysis of the required
elements of defamation and/or defamation per se, as it finds that the Employment Verifications
provided by Werner to potential employers, identifying four (4) minor accidents involving
Bentlejewski during his employment, are conditionally privileged. Further, the Court finds no
evidence in the record that Werner abused the privilege.
Under Pennsylvania law, a conditional privilege applies when a prior employer provides
an evaluation of a former employee at the request of a prospective employer. Grogan v. Duane,
Morris & Heckscher, 1991 U.S. Dist. LEXIS 7550, 20-21 (E.D. Pa. June 4, 1991) (citing
Zuschek v. Whitmoyer Laboratories, Inc., 430 F. Supp. 1163, 1165 (E.D. Pa. 1977), aff’d, 571
F.2d 573 (3d Cir. 1978); Rost v. National Railroad Passenger Corp., 1990 U.S. Dist. LEXIS
4691 (E.D. Pa. April 20, 1990); Frymire v. Painewebber, Inc., 107 Bankr. 506 (E.D. Pa. 1989)).
Moreover, under the FMCSA regulations, every motor carrier was required “to make . . .
investigations and inquiries with respect to each driver it employs,” including but not limited to
“[a]n investigation of the driver’s safety performance history with Department of
Transportation regulated employers during the preceding three years.” See 49 C.F.R. §
391.23(a)(2) (2012) (emphasis added). Werner, an “employer” as defined by § 390.5 of the
regulations, was required to respond to each such request and did so by supplying an
Employment Verification Report to the employers looking to hire Bentlejewski. See 49 C.F.R. §
391.23(g).
Bentlejewski, however, argues that the information included in the Employment
Verification Reports provided by Werner was not required by federal law. Section 391.23(d)
requires that the prospective motor carrier “investigate, at a minimum, the information listed in
6
this paragraph from all previous employers of the applicant that employed the driver to operate a
CMV within the previous three years” including “[a]ny accidents as defined by § 390.5 of this
chapter;” and “[a]ny accidents the previous employer may wish to provide that are retained
pursuant to § 390.15(b)(2), or pursuant to the employer’s internal policies for retaining more
detailed minor accident information.” 49 C.F.R. § 391.23(d)(2)(i) and (ii).
Under the FMCSA regulations, “[a]ccident” means:
(1)
. . . an occurrence involving a commercial motor vehicle operating on a
highway in interstate or intrastate commerce which results in:
(i)
A fatality;
(ii)
Bodily injury to a person who, as a result of the injury immediately
receives medical treatment away from the scene of the accident; or
(iii) One or more motor vehicles incurring disabling damage as a result
of the accident, requiring the motor vehicle(s) to be transported away from the
scene by a tow truck or other motor vehicle.
(2)
The term accident does not include:
(i)
An occurrence involving only boarding and alighting from a
stationary motor vehicle; or
(ii)
An occurrence involving only the loading and unloading of cargo.
49 C.F.R. § 390.5. Bentlejewski, therefore, argues that under the regulations, he had no
“accidents” while employed by Werner.
The Court can envision, however, numerous occurrences involving a commercial motor
vehicle that would affect a driver’s “safety performance history” that fall outside of both
subsections (1) and (2) of § 390.5’s definition of “accident,” including the preventable accidents
dated May 11, 2011, September 11, 2011, and March 9, 2012, listed by Werner in the
Employment Verification Reports provided to Schneider and Vitran. Whether such information
was required under federal law does not affect its status as conditionally privileged. Clearly,
Werner and both Schneider and Vitran shared a common interest in Bentlejewski’s safety
performance history and, as prospective employers, Schneider and Vitran were entitled to the
information conveyed.
7
Bentlejewski also ignores the public’s interest in the safety of commercial trucking.
Pennsylvania has affirmatively held that matters of public concern give rise to a conditional
privilege. See, Moore v. Cobb-Nettleton, 889 A.2d at 1268. “A conditional privilege arises when
a recognized interest of the public is involved.” Thompson v. Wagner, 631 F. Supp. 2d 664, 686
(W.D. Pa. 2008) (quoting Am. Future Sys. v. Better Business Bureau of E. Pa., 872 A.2d 1202,
1210 (Pa. Super. 2005). The Court finds that the communications at issue between Werner and
Bentlejewski’s prospective employers were conditionally privileged.
Bentlejewski now must establish that Werner abused its conditional privilege. See
Miketic v. Baron, 675 A.2d at 329. An abuse of privilege occurs if “the publication is actuated
by malice or negligence, is made for a purpose other than that for which the privilege is given, or
to a person not reasonably believed to be necessary for the accomplishment of the purpose of the
privilege, or included defamatory matter not reasonably believed to be necessary for the
accomplishment of the purpose.” Moore v. Cobb-Nettleton, 889 A.2d at 1269.
Bentlejewski argues that his burden is “relatively light” in that he need only show that
Werner was negligent is publishing the defamatory material in order to show the privilege was
abused. Werner asserts, however, that the matter at issue is a public concern, therefore
Bentlejewski must prove malice to overcome the conditional privilege. See Moore v. CobbNettleton, 889 A.2d at1269 (“cases which have held that a conditional privilege can be lost by
negligence are restricted to matters which are ‘not of a public concern’”).
In Moore v. Vislosky, 240 Fed. Appx. 457 (3d Cir. 2007), the Court of Appeals for the
Third Circuit predicted that the Pennsylvania Supreme Court would require a private-figure
plaintiff suing on matters of public concern to show that the defamatory statements were made
with actual malice to defeat a conditional privilege under Pennsylvania law. Id. at 464. In
reaching its conclusion the Court reasoned:
8
In a 1963 opinion, the Pennsylvania Supreme Court indicated that negligence on
the part of the defendant in making defamatory statements is sufficient to show
that a conditional privilege has been abused and, thus, has been lost. Purcell v.
Westinghouse Broadcasting Co., 411 Pa. 167, 191 A.2d 662, 668 (Pa. 1963). The
Purcell Court stated, “[t]he failure to employ such ‘reasonable care and diligence’
can destroy a privilege which otherwise would protect the utterer of the
communication.” Id. Accordingly, Pennsylvania cases following Purcell regularly
stated that abuse of a conditional privilege occurs when:
the publication is actuated by malice or negligence, is made for a
purpose other than that for which the privilege is given, or to a
person not reasonably believed to be necessary for the
accomplishment of the purpose of the privilege, or includes
defamatory matter not reasonably believed to be necessary for the
accomplishment of the purpose.
Miketic v. Baron, 450 Pa. Super. 91, 675 A.2d 324, 329 (Pa. Super. Ct. 1996)
(quoting Beckman v. Dunn, 276 Pa. Super. 527, 419 A.2d 583, 588 (Pa. Super. Ct.
1980)) . . .
However, more than a decade after Purcell was handed down, the United States
Supreme Court announced its decision in Gertz v. Robert Welch, Inc., 418 U.S.
323 (1974), holding that a private-figure plaintiff must show some fault (i.e., at
least negligence) to recover against a defendant where the speech at issue relates
to matters of public concern. In light of the Supreme Court’s pronouncement in
Gertz, the Pennsylvania Superior Court has recognized that where the allegedly
defamatory speech relates to matters of public concern, a private-figure plaintiff is
required to show more than mere negligence to defeat a conditional privilege. Am.
Future Sys. Inc. v. Better Bus. Bureau of E. Pa., 872 A.2d 1202, 1211 (Pa. Super.
Ct. 2005) (citing Banas v. Matthews Int’l Corp., 348 Pa. Super. 464, 502 A.2d
637 (Pa. Super. Ct. 1985); Rutt v. Bethlehems' Globe Publ'g Co., 335 Pa. Super.
163, 484 A.2d 72 (Pa. Super. Ct. 1984)); see also Moore v. Cobb-Nettleton, 889
A.2d 1262, 1269-70 (Pa. Super. Ct. 2005) . . .
This view finds support in section 600 of Restatement (Second) of Torts, which
states, in relevant part, “one who upon an occasion giving rise to a conditional
privilege publishes false and defamatory matter concerning another abuses the
privilege if he (a) knows the matter to be false, or (b) acts in reckless disregard as
to its truth or falsity.” RESTATEMENT (SECOND) OF TORTS § 600 (1977). As the
Comment to this section explains,
One consequence of the holding [of Gertz v. Robert Welch, Inc.] is
that mere negligence as to falsity, being required for all actions of
defamation, is no longer treated as sufficient to amount to abuse of
a conditional privilege. Instead, knowledge or reckless disregard as
to falsity is necessary for this purpose.
9
Id. cmt. b.
Id. at 463-464. Accordingly, this Court agrees that Bentlejewski is required to prove that Werner
intentionally included false information on his Employment Verifications to defeat the
conditional privilege.
Bentlejewski, however, fails to direct this Court to any cognizable evidence that would
create a material issue of fact regarding Werner’s alleged abuse of its conditional privilege.
Instead, Bentlejewski implores this Court to “examine the facts of the three incidents [in the
Employment Verification Report] . . . with the understanding that where there is a conflict in
the record, Plaintiff’s rendition is to be believed.” Brief in Opposition p. 9 (emphasis added).
Obviously, Bentlejewski misunderstands the applicable legal standard for summary judgment.
As the nonmoving party, Bentlejewski cannot rely, as he so attempts here, upon “unsupported
assertions, conclusory allegations, or mere suspicions in attempting to survive a summary
judgment motion.” Celotex Corp. v. Catrett, 477 U.S. at 325. To the contrary, the nonmoving
party must direct the Court to sufficiently cognizable evidence “to create material issues of fact
concerning every element as to which [he] will bear the burden of proof at trial.@ Fuentes v.
Perskie, 32 F.3d at 762 n.1. At this stage of the litigation, Plaintiff needs more than conclusory
allegations to defeat summary judgment.
After a comprehensive review of the record, this Court is unable to find a material issue
of fact regarding whether Werner acted with actual malice in its communications to Schneider
and Vitran regarding Bentlejewski’s safety performance history during his employment with
Werner. Accordingly, summary judgment on his claims of libel and defamation per se will be
granted.
10
B.
Intentional Interference with Existing Contractual Relationship
Pennsylvania recognizes both interference with existing contractual relations and
interference with prospective contractual relations as branches of the tort of interference with
contract. See U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 925 (3d Cir.
1990). Though distinct, the two branches of tortious interference share essentially the same
elements. See Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 529 (3d Cir.
1998). A claim for intentional interference with contractual or prospective contractual relations
requires proof of:
(1) the existence of a contractual or prospective contractual or economic
relationship between the plaintiff and a third party; (2) purposeful action by the
defendant, specifically intended to harm an existing relationship or intended to
prevent a prospective relation from occurring; (3) the absence of privilege or
justification on the part of the defendant; (4) legal damage to the plaintiff as a
result of defendant's conduct; and (5) for prospective contracts, a reasonable
likelihood that the relationship would have occurred but for the defendant’s
interference.
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 212 (3d Cir. 2009); Pelagatti v.
Cohen, 536 A.2d 1337, 1343 (Pa. Super. 1988); also see Thompson Coal Co. v. Pike Coal Co.,
412 A.2d 466, 471 (Pa. 1979).
Similar to the defamation analysis under Pennsylvania law, however, a communication is
not intentional interference of an existing contractual claim if there is a “privilege or justification
on the part of the defendant” who shared the information. Foster v. UPMC S. Side Hosp., 2 A.3d
655, 665-66 (Pa. Super. 2010); RESTATEMENT (SECOND) OF TORTs § 766 (1979). The plaintiff
must prove that “the defendant’s actions were improper under the circumstances presented.”
Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 98 (Pa. Super. 2009). “One
who intentionally causes a third person not to perform a contract . . . does not interfere
improperly with the other’s contractual relation . . . by giving the third person (a) truthful
11
information . . . or (b) honest advice within the scope of a request for the advice.” RESTATEMENT
(SECOND) OF TORTS § 772 cmt. b.; Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 982 A.2d
at 99.
The Court is unable to find any evidence in the record that suggests Werner improperly
provided the Employment Verifications requested by Schneider and Vitran. Moreover, Werner
was required to respond to such inquiries under the FMCSA regulations. As with the defamation
claim, even assuming the communications were untrue, there is no evidence that would allow a
reasonable jury to find that Werner acted in a way that was improper. Summary judgment on
Bentlejewski’s intentional interference with contract claim will be granted.
IV.
CONCLUSION
Based on the foregoing, Defendants’ motion for summary judgment shall be granted. An
appropriate Order follows.
s/ DAVID STEWART CERCONE
David Stewart Cercone
United States District Judge
cc:
John David Newborg, Esquire
Timothy R. Smith, Esquire
Christopher T. Sasada, Esquire
Frank M. Gianola, Esquire
(Via CM/ECF Electronic Mail)
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?