MATTHEW W. BRANN, District Judge.
This is a curious and unfortunate action sounding in defamation. A self-proclaimed energy healer asserts that he can employ his powers to alter the molecular composition of water. A university research assistant not only derides this claim but publicly states that the healer lacks sexual mores.
On December 28, 2011, Plaintiffs, Mahendra Kumar Trivedi, Trivedi Foundation, and Trivedi Master Wellness, LLC (collectively "Trivedi"), commenced the instant action by filing a complaint. Jurisdiction is predicated on diversity. Trivedi filed an amended complaint on December 13, 2012. ECF No. 31. Trivedi alleges that Defendant, Tania M. Slawecki (hereinafter "Slawecki"), defamed him (Count I), committed tortious interference with contractual relations of affiliates (Count II), and committed tortious interference with contractual relations with employees (Count III).
In response, Slawecki filed an amended answer on May 7, 2013, that asserts an abuse of process counterclaim against Plaintiffs. ECF NO. 40.
Slawecki filed a motion for summary judgment on August 25, 2014. ECF No. 64. The motion has been fully briefed by the parties. Additionally, the undersigned heard oral argument on the motion on October 29, 2014. The matter is now ripe for disposition.
For the following reasons, the motion for summary judgment will be granted in part and denied in part.
Middle District Local Rule 56.1 requires the moving party to set forth a statement of facts to which the moving party contends there is no genuine issue to be tried. The statement of facts is required to include references to the record to support the statement of facts. Both parties failed to comply with the local rule. Defendants provided only sixteen paragraphs of undisputed `facts,' which are not actually the facts of the case, but a procedural history of the case, with no references to the record. Plaintiffs' response also contains no references to the record.
Defendant's document, with a lack of undisputed facts is insufficient, considering that it is defendant's burden to demonstrate the absence of disputed material facts. Instead, defendant has merely provided the Court with a sparse recitation of the procedural history of the case. Defendant did cite to the record in the briefs supporting the motion, but this is not as useful to the Court as the statement of material facts required by the rule, because there is not a meaningful way for plaintiff to then respond to the asserted statements of fact by admission or denials. The manner in which the local rule has been written was done so in a considered deliberate manner specifically for the Court to determine the disputed, material facts with direction from the parties. "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (Posner, J.).
However, despite the lack of a statement of the undisputed facts as required by the local rule from which the Court may recite the facts to write a lucid opinion, it is clear from oral argument that the same essential storyline unfolds regardless of whether it is plaintiffs' recitation or defendant's. The dispute between the parties appears to center around the application of these facts to the law.
Accordingly, the following are the truffles
Plaintiffs are Mahendra Kumar Trivedi, Trivedi Foundation, and Trivedi Master Wellness, LLC (collectively "Trivedi"). Mr. Trivedi founded the non-profit Trivedi Foundation and he controls the for-profit company, Trivedi Master Wellness. ECF No. 70-1 at 2 and 6. Mr. Trivedi asserts that he received guidance from a "universal intelligence" that lead him to understand that he had been given the ability to transmit energy, such that his blessings can change the structure of the atoms that make up water. ECF No. 70-1 at 3, and ECF No. 70-3 at 38-39 Pl.'s Responses to Defendant's Request for Admission.
In 2009, Mr. Trivedi "began research with Dr. Rustum Roy, director of The Pennsylvania State University's material research laboratory and arguable [sic] one of the world's experts on the molecular structure of water" ECF No. 76-1 at 3, Affidavit of Mahendra Kumar Trivedi. Mr. Trivedi appeared to have the support of Dr. Roy. See Letter purportedly directed to the department of Immigration and Naturalization Services from Dr. Roy, ECF No. 76-1 at 17.
Mr. Trivedi met Defendant, Tania M. Slawecki, Ph.D. (hereinafter "Slawecki"), through Dr. Roy. Dr. Slawecki is a Research Associate with the Materials Research Institute at The Pennsylvania State University (hereinafter "Penn State") in State College, Centre County, Pennsylvania. ECF. No. 7601 at 14.
There are two documents that appear to form the basis of Trivedi's claims against Dr. Slawecki. The first is an article on the internet written by Dr. Slawecki that the parties have titled the "overview." The second is an email written by Dr. Slawecki on July 28, 2011.
Dr. Slawecki has a link to a personal webpage that can be accessed through the official Penn State website. Dr. Slawecki posted on her personal website an article that the parties describe as an "overview." The overview was written after Dr. Roy's death. ECF No. 76-1 at 57. The overview is an approximately 5 page article that Dr. Slawecki posted on her personal website titled "Overview and Summary of Research on Mahendra Trivedi Conducted at Penn State University in 2009" and is dated May 2011. ECF No. 76-1 at 68-73. The following are the excerpts from the overview written by Dr. Slawecki that are relevant to the instant motion:
ECF No. 76-1 at 68-73.
There are three versions of the "overview" in the record. ECF No. 76-1 at 68-73; 75-78 and 80-83. The second version does not contain the references to the devil or an `evil spirit.' The second version also does not insinuate that Trivedi's blessings were casually related to Dr. Roy's death. The third version is in print too minuscule for the Court to decipher.
On July 28, 2011, Dr. Slawecki sent an email to Heather McKinney and Julie March. ECF No. 76-1 at 85-87. Heather McKinney was a Penn State colleague of Dr. Slawecki's. Julie March had been an employee of Trivedi's. The email states:
ECF No. 76-1 at 85-87.
Dr. Slaweki wrote in a later email to Dennis Lang that she intended the email to be a private communication and she did not intend for Julie March to disseminate it. ECF No. 76-1 at 88. She further wrote "there was a tiny part of me that questioned whether or not this was the right thing to do. . ." Id. "I have an iron conscience and this will haunt me for the rest of my life. I know I stooped to the level of gossip. . ." Id. Julie March acknowledged in an email to Dr. Slawecki that she had disseminated Dr. Slawecki's July 28, 2011 email, stating, "Basically, I can take accountability that I forwarded an email without knowing it was meant to be confidential." ECF No. 76-1 at 92.
Mr. Trivedi asserts that "all [of Dr. Slawecki's] implications are false, " including Dr. Slawecki's accusations of sexual abuse. ECF No. 76-1 at 4, Affidavit of Mahendra Kumar Trivedi.
Kathleen V. Yurchak, Esquire, counsel for plaintiffs, clarified in oral argument before the Honorable Yvette Kane, to whom this matter was previously assigned, that Count I, defamation, is based only on the accusation of sexual misconduct. ECF No. 32 at 18. Additionally, the amended complaint only alleges the sexual misconduct statement as a basis for the defamation claim. ECF No. 31 at -8. Mr. Trivedi has denied having a sexual relationship with any of his employees. ECF No. 70-1 at 9. Mr. Trivedi also asserts that no criminal charges have been filed against him, no civil liability has been alleged/imposed, and he has made no settlement agreements for sexual misconduct and/or physical abuse. ECF No. 70-2 at 16-17, Pl.'s Amended Responses to Df.'s First Set of Interrogatories.
Mr. Trivedi asserts that,
ECF No. 76-1 at 4, Affidavit of Mahendra Kumar Trivedi.
Mr. Trivedi named seven affiliates who stopped doing business with him. ECF No. 70-2 at 20, Pl.'s Amended Responses to Df.'s First Set of Interrogatories. These seven entities form the basis of the interference with contractual relations of affiliates claim, Count II. Mr. Trivedi named four employees who stopped doing business with him. ECF No. 70-2 at 20, Pl.'s Amended Responses to Df.'s First Set of Interrogatories. These four employees form the basis of the interference with contractual relations of employees claim, Count III. There is no evidence that Dr. Slawecki directly contacted any of Trivedi's affiliates. ECF No. 68 at ¶ 10.
According to deposition testimony of Alice Branton, the Chief Executive Officer of Trivedi Global, Inc. (and formerly the Vice President for Business Development for Trivedi Master Wellness), the Trivedi Foundation "collected around $65,000" in 2009; in 2010 "it was very close to $2.4 million;" and for 2011 "it collected revenue" of $3.5 million. ECF No. 70-1 at 6. Additionally, in 2011 Trivedi Master Wellness was created, and that "collected around $5 million" that year. ECF No. 70-1 at 6-7. Ms. Branton went on to state, "[a]nd in 2012, our revenue was $4.5 million, because whatever Tania Slawecki, she did, right, with the whole group. So the revenue started coming down: 2012, $4.5 million; 2013, $3.2 million." ECF No. 70-1 at 7.
Dr. Slawecki alleges that Trivedi has abused process by filing multiple lawsuits in multiple jurisdictions against her.
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations or denials in its own pleading; rather its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Service, 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S. at 247-48.
Dr. Slawecki argues that she is entitled to summary judgment on the defamation claim because, as Plaintiffs are limited purpose public figures, Dr. Slawecki can only be liable if she had acted with actual malice; Plaintiffs cannot show the falsity of the alleged defamatory statement; and she is entitled to a conditional privilege with respect to the allegedly defamatory email. Morevoer, Dr. Slawecki argues that the demand for attorneys fees at Count I is not permissible pursuant to Pennsylvania law.
In response, Trivedi argues that there are material facts in dispute that would defeat the motion for summary judgment; actual malice exists; Dr. Slawecki's statements are defamation per se; and there is a basis for punitive damages.
""Defamation," of which libel, 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." Cogley v. Duncan, 32 A.3d 1288 (Pa. Super. Ct. 2011). "In an action for defamation, the plaintiff has the burden of proving . . . [t]he defamatory character of the communication." Tucker v. Philadelphia Daily News, 848 A.2d 113, 123 (Pa. 2004), citing 42 Pa.C.S. § 8343(a).
Pennsylvania law sets out the elements of both the claim and defense as follows:
42 Pa. Cons. Stat. Ann. § 8343.
However, despite Pennsylvania's statue placing the burden of proving truth in a defamation action in on the defendant, the burden on truth/falsity is shifted to the plaintiff when the plaintiff is a public figure. Counsel at oral argument conceded that Plaintiffs are limited-purpose public figures.
The standard of review for a public figure and a limited purpose public figure are the same. "[A] public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation." Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 1563, 89 L. Ed. 2d 783 (1986); See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (reading Sullivan for the proposition that "a public official [is] allowed the civil [defamation] remedy only if he establishes that the utterance was false"). See also Herbert v. Lando, 441 U.S. 153, 176, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115 (1979) ("[T]he plaintiff must focus on the editorial process and prove a false publication attended by some degree of culpability").
"It is the function of the court to determine whether the challenged publication is capable of a defamatory meaning." Tucker, 848 A.2d at 124. "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." Id., citing Thomas Merton Center v. Rockwell International Corp., 442 A.2d 213, 215-16 (Pa. 1981). "To determine whether a statement is capable of a defamatory meaning, we consider whether the statement "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third parties from associating or dealing with him." Id. citing Birl v. Philadelphia Elec. Co., 167 A.2d 472, 475 (Pa. 1960) (quoting Restatement (First) of Torts, § 559 (1989). "It is not enough that the victim of the [statements] . . . be embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of respectable society." Id. citing Scott-Taylor, Inc. v. Stokes, 229 A.2d 733, 734 (Pa. 1967).
Plaintiffs would have the burden at trial of showing that Dr. Slawecki's statement was made with `actual malice' and are false. "[T]he appropriate standard of fault depends on whether the plaintiff is a public or private figure." Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pennsylvania, 923 A.2d 389, 400 (Pa. 2007), See Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (articulating that "the state interest in compensating injury to the reputation of private individuals requires a different rule should obtain with respect to them" as compared to public figures). "If the plaintiff is a public official or public figure, see Curtis Publ'g Co. v. Butts, 388 U.S. 130, 164, 87 S.Ct. 1975, 1996, 18 L.Ed.2d 1094 (1967) (extending the actual malice requirement to public figures who are not governmental officials), and the statement relates to a matter of public concern, then to satisfy First Amendment strictures the plaintiff must establish that the defendant made a false and defamatory statement with actual malice." Id. Actual malice is "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L. Ed. 2d 686 (1964).
At trial, Trivedi must "prove by clear and convincing evidence that the allegedly defamatory statements were false and that [Dr. Slawecki] either knew they were false or recklessly disregarded their falsity." Tucker 848 A.2d at 128. "[T]he requirement that the plaintiff be able to show actual malice by clear and convincing evidence is initially a matter of law." Id. at 130. "`The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law.'" Id. (quoting Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685-86, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)).
Fitzpatrick v. Philadelphia Newspapers, Inc., 389 Pa.Super. 438, 443-44, 567 A.2d 684, 687 (1989)
From the evidence provided to the Court, it appears that Plaintiffs may be able to produce enough evidence at trial to convince a reasonable jury of the first five factors set forth at 42 Pa. Cons. Stat. Ann. § 8343.
Defendant argues that plaintiffs haven't proved the falsity of the allegations, plaintiffs have failed to prove the lack of privilege, and defendant further argues that plaintiffs haven't shown actual malice by clear and convincing evidence.
The matter therefore turns on two points: the existence, or lack thereof, of "actual malice" and plaintiffs setting forth some evidence to show that the allegations are false. The Court must consider whether a reasonable jury could conclude by clear and convincing evidence that Dr. Slawecki knew the statements were false or wrote them with a reckless disregard of their falsity.
Dr. Slawecki testified at her deposition that there were two reasons that she sent the email (that was quoted verbatim above). The first, is that "I knew Julie had fled Mr. Trivedi, abandoned him at a hotel, for reasons that were unknown to me." ECF. No. 76-1 at 62. Dr. Slawecki went on to say, "The second factor. . .was that I had learned [from the reporter, Dennis Lang] that abuses to women had occurred in Mr. Trivedi's employ." Id.
Defendant's brief indicates that Dr. Slawecki had heard the information about the allegations of sexual abuse of a 19 year old girl from both the reporter, Dennis Lang, as well as from a former employee of Trivedi's, Gloria Zamora.
As the Superior Court of Pennsylvania observed in a case of recent vintage:
Blackwell v. Eskin, 2007 PA Super 20, 916 A.2d 1123, 1125-26 (2007)
Black's Law Dictionary defines negligence as "[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights. The term denotes culpable carelessness." BLACK'S LAW DICTIONARY (9th ed. 2009).
Black's Law Dictionary defines recklessness as "1. [c]onduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk. Recklessness involves a greater degree of fault than negligence but a lesser degree of fault than intentional wrongdoing. 2. The state of mind in which a person does not care about the consequences of his or her actions. The ordinary meaning of the word [recklessness] is a high degree of carelessness. It is the doing of something which in fact involves a grave risk to others, whether the doer realizes it or not. The test is therefore objective and not subjective. BLACK'S LAW DICTIONARY (9th ed. 2009).
Although the terms negligence and recklessness seem easily defined, they are not easily applied. It has been aptly said that,
C. Mutter, MOVING TO COMPARATIVE NEGLIGENCE IN AN ERA OF TORT REFORM: DECISIONS FOR TENNESSEE, 57 Tenn.L.Rev. 199, 211 (1990).
It is a formidable task for the Court to determine as a matter of law where on the continuum Dr. Slawecki's actions stood. With this in mind, the undersigned turns to the facts presented by the parties. The Court finds that Plaintiffs simply have not set forth enough evidence for a reasonably jury to find by clear and convincing evidence that Dr. Slawecki acted recklessly. To the contrary, Plaintiffs have merely set forth evidence to show that Dr. Slawecki acted negligently.
Dr. Slawecki heard gossip about Mr. Trivedi through multiple sources, as delineated above. Dr. Slawecki failed to exercise the care that a reasonably prudent person may have taken, in not repeating that gossip. Plaintiffs have not, however, set forth anything to demonstrate to this Court that Dr. Slawecki recklessly spread information that she believed to be false. Plaintiff's "[e]vidence may be sufficient to support a finding of negligence in failing to discover misstatements, but constitutionally insufficient to show the recklessness required for a finding of actual malice." Fitzpatrick, 567 A.2d at 689 (1989), (citing New York Times v. Sullivan, 376 U.S. at 288, 84 S.Ct. at 730).
Moreover, and most notably, plaintiffs have not provided any evidence from the young woman alleged to have been a sexual abuse victim to show that the allegations were false. Public figure plaintiffs have the burden of proving the falsity of the statement at trial. See New York Times v. Sullivan, supra. In attempting to defeat summary judgment, deposition testimony or an affidavit from this young woman would be a key piece of evidence the plaintiffs would need both for the purposes of the instant motion and for trial. Trivedi has provided scant evidence, essentially nothing aside from his own affidavit, to say that the allegation was false. "As a general proposition, "conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment."" Gonzalez v. Sec'y of Dep't of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012), citing Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir.2009) (citation omitted) (internal quotation marks omitted); see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The plaintiffs' lack of evidence showing falsity of the statement is glaring and falls well short of the clear and convincing evidence standard.
As to Count II, Dr. Slawecki argues that she is entitled to summary judgment on the tortious interference with contractual relations — affiliates claim because Plaintiffs have not provided any evidence that the six identified affiliates ceased doing business with them because of the statements by Dr. Slawecki; Mr. Trivedi failed to attribute a specific monetary loss because of the affiliates' refusal to do business with Plaintiffs; there is no evidence to support a punitive damages demand; and there are no allegations that would entitle Plaintiffs to attorneys' fees.
As to Count III, Dr. Slawecki argues that she is entitled to summary judgment on the tortious interference with contractual relations — employees and others claim because Plaintiffs only identified one employee, Cindy Sparks, in the complaint who alleges that she declined to continue to work for Plaintiffs because of Dr. Slawecki's conduct; Plaintiffs have produced no evidence to establish that Sparks terminated her employment with Plaintiffs because of Dr. Slawecki's conduct; Plaintiffs have failed to produce any evidence that a client, Kristen Stewart, declined to be associated with Plaintiffs as a result of Dr. Slawecki's actions; there is no evidence to support a punitive damages demand; and there are no allegations that would entitle Plaintiffs to attorneys' fees.
In response, Trivedi argues that there are material facts to defeat the motion for summary judgment.
Blackwell v. Eskin, 2007 PA Super 20, 916 A.2d 1123, 1127-28 (2007) citing Reading Radio, Inc. v. Fink, 833 A.2d 199, 211 (Pa.Super.2003), appeal denied, 577 Pa. 723, 847 A.2d 1287 (2004) (quoting Strickland v. University of Scranton, 700 A.2d 979, 985 (Pa.Super.1997)).
As to the first element,
Baier v. Jersey Shore State Bank, No. 4:07-CV-2236, 2009 WL 2843325, at *17 (M.D. Pa. Aug. 31, 2009) (McClure, J.) (internal citations and quotations omitted).
"It is not enough for a plaintiff to show merely that defendant's actions had the incidental consequence of affecting plaintiff's business relationships with third persons." Devon Robotics v. DeViedma, No. 09-CV-3552, 2012 WL 3627419, at *16 (E.D. Pa. Aug. 23, 2012) (Joyner, J.) "A plaintiff must show that the defendant acted for the malevolent purpose of interfering with the plaintiff's existing . . . business relationships." Id. citing Valley Forge Convention & Visitors Bureau v. Visitor's Servs., Inc., 28 F.Supp.2d 947, 951 (E.D.Pa.1998).
"The second element requires proof that the defendant acted for the specific purpose of causing harm to the plaintiff." Phillips v. Selig, 2008 PA Super 244, 959 A.2d 420, 429 (2008) (internal citations omitted). The wrong ordinarily requires conduct intended to interrupt negotiations or prevent the consummation of a contract." Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1025 (Pa. Commw. Ct. 2014) (citing Glenn v. Point Park College, 441 Pa. 474, 481, 272 A.2d 895, 899 (1971)). "[T]he second prong is satisfied if defendant acts improperly and with the knowledge that such interference is substantially certain to occur." Id. citing RESTATEMENT (SECOND) OF TORTS § 766 cmt. j; § 766B cmt. d (1979).
"The third element requires proof that the defendant's actions were improper under the circumstances presented. Phillips v. Selig, 959 A.2d 420, 429 (Pa. Super. 2008). "The presence of a privilege is not an affirmative defense, rather, the absence of such a privilege is an element of the cause of action which must be pleaded and proven by the plaintiff." Synthes, Inc. v. Emerge Med., Inc., 2014 WL 2616824, at *19 (E.D. Pa. June 11, 2014) citing Bahleda v. Hankison Corp., 323 A.2d 121, 122-123 (Pa.Super.1974).
"Whether a defendant is privileged or justified in a particular course of conduct is defined by "the rules of the game," or the "area of socially acceptable conduct which the law regards as privileged. Orange Stones Co., 87 A.3d at 1025, citing Glenn v. Point Park College, 441 Pa. 474, 482, 272 A.2d 895, 899 (1971).
Pennsylvania has adopted the Restatement Second of Torts proposition that the interference must be improper, i.e., without privilege or justification. See Empire Trucking Co., Inc., v. Reading Anthracite Coal Co., 71 A.3d 923 (Pa. Super. 2013). To determine impropriety includes consideration of:
RESTATEMENT (SECOND) OF TORTS § 767, and see, Phillips, supra ([The] third element. . .is determined in accordance with the factors listed in Restatement section 767).
In applying these factors, comment b to section 767 is also instructive:
Phillips, 959 A.2d at 430 (2008) (internal citations omitted).
Strikingly, the only evidence plaintiffs relied on to defeat summary judgment on this claim is a two-page affidavit from Alice Branton, the Chief Executive Officer of Trivedi Global, Inc. (and former Vice President for Business Development for Trivedi Master Wellness). Ms. Branton named twenty-three "key employees, affiliates, volunteers and clients" "who left due to Tania Slawecki's allegations." ECF No. 76-1 at 128-9. Ms. Branton also named another employee who "[a]t the time Slawecki was making her allegations (March 2011), Gloria Zamora started her litigation after resigning with [sic] the Trivedi Foundation[,] and was considered a hostile employee."
"Under Pennsylvania law, [Plaintiffs] must present adequate proof of an objectively reasonable probability that a contract will come into existence" Baier, supra. "[Plaintiffs] need only demonstrate that it is reasonably probable that it would have obtained a contract, not that it was guaranteed to do so." Id. "Stated another way, [Plaintiffs] may recover if, but for [defendant's] wrongful acts, it is reasonably probable that a contract would have been entered." Id. "This reasonable probability may result from an unenforceable express agreement, an offer, or the parties' current dealings, but not merely from prior dealings or an existing business relationship between the parties."
Trivedi has offered no evidence of either existing or prospective contracts. There were no contractual documents provided to defeat summary judgment to show the existence of a contract with these named individuals. Nor was any evidence adduced of a prospective contract, such as an offer or negotiation documents. No facts were presented to defeat the summary judgment motion; Plaintiffs merely set forth the unsupported opinion of one employee who stated that twenty-four people left the Trivedi enterprises because of Slawecki's statements, including one employee who apparently began litigation against Trivedi approximately three months before Slawecki wrote the "overview" internet post and the email at issue. In other words, Trivedi has responded with no facts that create a genuine issue for trial.
In opposing summary judgment, the non-moving party "may not rely merely on allegations or denials in its own pleading; rather its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Service, 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
Because the decision to grant summary judgment rests on the first factor of these two claims, the court need not address the remaining factors.
Dr. Slawecki asserts in her motion for summary judgment, ECF No. 64, that the undisputed facts show that she is entitled to summary judgment on her abuse of process counterclaim against Plaintiffs. However, Dr. Slawecki made no mention of the abuse of process claim in either her brief supporting the motion, ECF No. 70, or in her reply brief, ECF No. 77.
Accordingly, because Defendant made no argument for plaintiffs to respond to, insofar as the motion is for summary judgment on Defendant's counterclaim, the Court deems it to have been abandoned by Defendant.
Defendant's Motion for Summary Judgment on Counts I, II, and III, will be granted.
Insofar as Defendant's Motion for Summary Judgment is a motion for judgment in her favor on her counterclaim, it will be denied.
