Free Answering Brief in Opposition - District Court of Delaware - Delaware

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press about the matter). A retaliation claim cannot be based on speech or conduct if the defendant erroneously believed that the plaintiff engaged in such speech or conduct. Id.; Barkoo v. Melby, 901 F.2d 613, 619 (7th Cir.1990) ("[Plaintiff] provides no authority for the proposition that her free speech rights are deprived in violation of § 1983 when the speech at issue admittedly never occurred.")

that after the debate, she perceived that Eppihimer was upset with her "because of the way the programming went." (Id. at 92.) Plaintiff did not appear on the debate or speak to the Defendants on the issue at that time. In light of Plaintiff's own testimony regarding the limited nature of her activities in connection with the debate, and her testimony that she did not engage in the specific conduct that purportedly motivated the Defendants to retaliate against her, Plaintiff's showing is insufficient to establish that she engaged in conduct that is protected by the First Amendment. For example, even if Plaintiff could show at trial that Eppihimer became upset with her because he perceived that she barred callers from speaking against the municipal trash collection referendum, Plaintiff's own deposition testimony that she did not engage in such activity means that any actions taken on his part in retaliation for such conduct would be based on a mistaken belief as to what Plaintiff had done. Even if such conduct were protected, FN4 the fact that Plaintiff did not actually engage in such conduct means that the televised debate incident cannot be the basis for Plaintiff's First Amendment retaliation claim. FN5 See Barkoo, 901 F.2d at 619.

FN3. "A public employee's speech involves a matter of public concern if it can `be fairly considered as relating to any matter of political, social or other concern to the community.' " Green, 105 F.3d at 885-86 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). In this respect, we focus on the content, form, and context of the activity in question. Connick, 461 U.S. at 147-48; Watters v. City of Phila., 55 F.3d 886, 892 (3d Cir.1995). Speech in a form that is not deemed a matter of public concern in one context does not become a matter of public concern simply because it could be deemed protected in a different context. See Connick, 461 U.S. at 148 n. 8. Here, Plaintiff alleges that the Defendants retaliated against her because of their perception that she engaged in speech or conduct relating to two public issues: the municipal trash collection referendum and the proposal to abolish the Reading Area W ater Authority ("Authority"). She alleges that this speech and conduct was protected by the First Amendment. The primary incident occurred in 1998, and related to Plaintiff's role in organizing and overseeing a televised debate on the trash collection referendum. (Compl. ¶ 22; Defs.' Ex. F ("Kelleher Dep.") at 88, 90-91.) Plaintiff testified in her deposition that her role in the debate was helping to secure a debate representative for each side and establishing rules regarding the format of the debate. (Kelleher Dep. at 88.) Kelleher testified that while she was involved in screening calls to put on the air, she only screened the calls to ensure the remarks related to the debate topic, and not to determine which side the caller intended to support. (Id. at 89-90.) She testified

FN4. Because the Court determines that the Plaintiff has failed to establish a genuine issue of material fact as to whether she engaged in the purportedly protected activity, it need not consider the legal question of whether such conduct would be protected by the First Amendment. FN5. Plaintiff further testified in her deposition that she spoke on the subject of municipal trash collection when she objectively told Eppihimer the "pros and cons" of adopting such a plan. (Pl.'s Resp. to Defs.' Mot. Ex. 1 ("Kelleher Verification") ¶ 23.) This speech, however, is not alleged in the Complaint, and therefore is not part of Plaintiff's retaliation claim here. Furthermore, Plaintiff fails to identify the specifics of that speech, such as the time and place at which it took place or the circumstances in which the speech was given. Even had Plaintiff included

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an allegation that she engaged in such speech, Plaintiff has provided insufficient evidence to establish a genuine issue of material fact concerning whether she engaged in speech that was protected. *5 Plaintiff's evidence is similarly insufficient concerning the other alleged incident. Plaintiff alleges that in 1997, Eppihimer, then a Councilman, asked her to draft an ordinance to abolish the Authority. (Compl. ¶ 13.) Plaintiff alleges that she researched the issue and learned that abolishing the Authority would, among other things, place restrictions on the City's sale of water to outlying communities and force the City to assume the Authority's bond debt. (Id. ¶ 14.) W hen Plaintiff informed Eppihimer of these facts, he "began yelling at her, and saying that she was against him and he would have her fired." (Id. ¶ 15.) Plaintiff's retaliation claim, with respect to this incident, is based on the Defendant's perception that she was speaking against his position on the abolition of the Authority. Kelleher testified in her deposition, however, that she made no such recommendation or criticism regarding the merits of Eppihimer's proposal to abolish the Authority. (Kelleher Dep. at 53-54.) Plaintiff admits that she did not have an opinion as to whether the authority should be abolished. (Id.) She denies that she did anything other than objectively relay the results of her research to Eppihimer. (Id.) Because Plaintiff denies having engaged in the speech that forms the alleged basis of Defendants' alleged retaliatory motive, that speech cannot form the basis of her retaliation claim.

failed to meet her burden to show that the protected activity was a substantial or motivating factor in the alleged retaliatory actions. In this case, Plaintiff alleges that the Defendants engaged in a campaign of harassment that included a host of different retaliatory actions: (a) Plaintiff's one-week suspension; (b) Plaintiff's lock-out from City Hall during her suspension; (c) the retrieval and reading of Plaintiff's e-mails; (d) dissemination of her e-mail messages to the media; (e) dissemination of the ethics complaint to the media; (f) public comments regarding Plaintiff's suspension; (g) refusal to issue Plaintiff a parking permit; (h) refusal to pay Plaintiff additional salary allotted by the City Council; and (i) initiation of rumors of Plaintiff's extramarital affairs. FN6

2. Nexus Between Alleged Retaliation and Speech Furthermore, even if Plaintiff could establish that she engaged in protected speech and conduct, she has failed to establish a connection between that speech and conduct and the allegedly retaliatory conduct by the Defendants. A plaintiff must show that her protected activity was a substantial or motivating factor in the actions alleged to be retaliatory. Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.1997). Even assuming that Plaintiff engaged in protected activity, Plaintiff has

FN6. Because the Court determines that Plaintiff has failed to establish a genuine issue of material fact with respect to there being a retaliatory motive, it is unnecessary to examine in detail the evidence that such retaliation took place at the hands of the Defendants. The Court notes, however, that in several respects, Plaintiff's evidentiary showing is insufficient to establish genuine issues of material fact. For example, Plaintiff points to no admissible evidence that she was actually locked out of either the building (after hours) or the computer system during the relevant period. Although Plaintiff testified in her deposition that Councilman W altman ordered her to be locked out of City Hall and the computer system, and that Eppihimer did so, (Kelleher Dep. at 282-88), Plaintiff admits that she had no personal knowledge of Mr. W altman having told Defendant Eppihimer to lock Plaintiff out of City Hall. (Kelleher Dep. at 288.) Similarly, Plaintiff provides no admissible evidence that D efendants actually disseminated the e-mails. Plaintiff provides a statement in her Verification that Don Kaiser, a television news reporter, "sent [a copy of] the e-mails and ethics complaint to me after I

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agreed to trim off the header. I looked at the header before I trimmed it off, and saw that the facsimile had been sent from the Mayor's office, ..." (Kelleher Verification ¶ 58.) However, this account of events is contradicted by her prior deposition testimony, in which she indicated that "... Kaiser and.... W eiler ... told me they received copies of the complaint. It was faxed. And although they, let's say, trimmed the lead, whatever you call that section at the top, they did tell me that it was from the mayor's office." Plaintiff also testified in her deposition that she never saw any copy of the ethics complaint with any fax identifier on it. (Kelleher Dep. at 238, 324-26). Given the conflict in testimony, it is appropriate to d isregard the subsequent verification statement, because on a motion for summary judgment, a court may properly refuse to consider testimony presented in an affidavit when the non-movant's affidavit contradicts, without satisfactory explanation, testimony previously provided in deposition. See Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir.1988) ("The objectives of summary judgment would be seriously impaired if the district court were not free to disregard the conflicting affidavit.") Furthermore, Plaintiff's statements as to what Kaiser and W eiler told her about the origins of the e-mails (that they came from Eppihimer's office) are inadmissible hearsay. Moreover, Plaintiff fails to establish that all of the allegedly retaliatory actions were sufficiently serious enough for purposes of the retaliation claim. In a First Amendment retaliation case, the alleged retaliatory action itself does not have to infringe on a federally protected right independent of the First Amendment. See Perry v. Sinderman, 408 U.S. 593, 596-98 (1972) ("[E]ven though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, ... [the government] may not deny a benefit to a person on a basis that

infringes his constitutionally protected interests ... his interest in freedom of speech.); see also Rutan v. Republican Party of Illinois, 497 U.S. 62, 76 n. 8, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). Nevertheless, while the actions taken do not independently need to violate a constitutional right, not every action of harassment is actionable under § 1983 in a retaliation case. Rather, the actions must be such that they would "deter a person of ordinary firmness" from exercising her First Amendment rights. Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.2000). "[I]n the field of constitutional torts de minimis non curat lex. Section 1983 is a tort statute. A tort to be actionable requires injury. It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise ..." Suppan, 203 F.3d at 235 (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982)). Several of the retaliatory actions likely do not pass the Suppan test. For example, Plaintiff alleges that the Defendants monitored and screened her private e-mails, yet she adduces no evidence to demonstrate that such correspondence was confidential. In fact, Plaintiff admits that she signed a statement saying that she received and read a copy of the City's usage guidelines, which specifically reserve the City's right to read and monitor e-mail communications. (Kelleher Dep. at 430-33; Defs.' Ex. T ("Guidelines.") Plaintiff also does not dispute that such monitoring has occurred on other occasions with other employees. (Defs.' Ex. C ("Tangredi Dep.") at 121-24.) Given that Plaintiff was clearly subject to such monitoring, had notice of such monitoring, and that such monitoring had occurred before with another employee, the action seems far less likely to deter a person of ordinary firmness from the exercise of protected activity. Similarly, Plaintiff alleges that the Defendants denied her a dashboard parking permit.

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However, notwithstanding her unsubstantiated claim that it "is undisputed that free parking is one of the fringe benefits of fulltime employees of the City of Reading who work in City Hall," (Pl.'s Resp. at 12), Plaintiff adduces no evidence, and there is no evidence in the record, which establishes such an entitlement. Plaintiff, in fact, did not receive a new permit until after the City Council passed an ordinance granting parking passes to the City Council and employees, thus suggesting that she was not entitled to such a permit. (See Kelleher Dep. at 418.) Furthermore, Plaintiff's primary grievance is the large number of parking tickets that she received; yet Plaintiff received tickets for parking in areas where she admits she did not know whether the dashboard permits allowed for the waiver of the parking rules. (See Kelleher Dep. at 426-27.) In light of Plaintiff's failure to adduce evidence that she was entitled to such a permit and that such a permit would have prevented all of her parking tickets, it is unlikely that such a denial of the permit would deter a person of ordinary firmness from engaging in protected conduct. *6 Examining the evidence in the record, however, the Court can identify no admissible evidence that draws a connection between Plaintiff's alleged speech and conduct in 1997 and 1998, and the alleged retaliatory actions that form the "campaign of harassment." FN7 None of the deposition testimony or the documentary evidence establishes such a connection. Plaintiff argues that this connection can be inferred from the series of retaliatory actions themselves; however, this kind of circular reasoning simply underscores the fact that there is no genuine issue of material fact with respect to a nexus between the protected conduct and the retaliation. In the absence of some other type of evidence, this inference is not one that can be supported solely by the alleged "retaliatory campaign." This is particularly true in light of Plaintiff's failure even to adduce evidence to support that all of the actions took place.

tend to indicate Eppihimer's desire to see Plaintiff terminated as the City Clerk. (Kelleher Dep. at 84.) However, these statem ents, even if a d m issib le, are insufficiently connected to Plaintiff's speech in 1997 and 1998. M oreover, the statements are an insufficient basis upon which to infer that Defendants engaged in particular activities for the purpose of retaliating against her. Moreover, the large gap in time between the allegedly protected speech (in 1997 and 1998) and the alleged retaliatory activities (in 2000 and later) cuts against Plaintiff's position that the Defendants' actions were motivated by a retaliatory motive. FN8 Temporal proximity between the protected activity and the allegedly retaliatory action is a factor to consider in retaliation cases. See Grimm v. Borough of Norristown, No.01-CV-431, 2002 U.S. Dist. LEXIS 3954, at *83 (E.D.Pa. M ar. 11, 2002) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80 (3d Cir.2000) (noting that temporal proximity has probative value in retaliation cases, but that other evidence suggesting a causal connection between protected activity and allegedly retaliatory action may be considered)); Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir.1997) (noting that if timing alone could ever be sufficient to establish a causal link, the timing of the alleged retaliatory action must be "unusually suggestive" of retaliatory motive); see generally Russoli v. Salisbury Twp., 126 F.Supp.2d 821, 855 (E.D.Pa.2000).

FN7. Plaintiff does point to statements that

FN8. The only exception is that the alleged spreading of rumors took place closer in time to Plaintiff's allegedly protected speech. However, Plaintiff has adduced no admissible evidence that either individual Defendant was responsible for spreading any such rumors. Plaintiff states that "I believe that Mr. Eppihimer was responsible for these rumors [of extramarital affairs] because a variety of people told me that they heard that he was spreading the rumors." (Kelleher Verification ¶ 13.) Plaintiff also discusses at length in her deposition the various rumors. (Kelleher Dep.

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at 58-77.) However, Plaintiff provides no testimony from any of the individuals that allegedly heard M r. Eppihimer make such statements or otherwise had personal knowledge that he spread the rumors. Plaintiff has likewise provided insufficient evidence upon which to infer that Eppihimer was responsible for starting them. Accordingly, the Court has not considered the rumors as part of Plaintiff's contention that there was a retaliatory motive behind the alleged "campaign of harassment." Accordingly, judgment on the retaliation claims is granted in favor of the City of Reading and the individual Defendants in their official and individual capacities.

and Defendants are entitled to judgment on those claims.

D. Invasion of Privacy Claim Plaintiff's final count is a claim for invasion of privacy against Defendant Cramsey in his individual capacity. Pennsylvania law provides four theories on which a claim of invasion of privacy can be based: (1) intrusion upon seclusion; (2) appropriation of name and likeness; (3) publicity given to private life; and (4) publicity placing a person in false light. Smith, 112 F.Supp.2d at 434. Plaintiff's claim proceeds on the "intrusion upon seclusion" and "publicity given to private life" theories. For the reasons that follow, the Court determines that Defendant is entitled to judgment on this Count. The Pennsylvania courts have adopted section 652B of the Restatement (Second) of Torts which provides: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts § 652B (1976); Harris v. Easton Publ'g Co., 335 Pa.Super. 141, 483 A.2d 1377, 1383 (Pa.Super.Ct.1984). The invasion may take various forms including: (a) physical intrusion into a place where the plaintiff has secluded herself; (2) use of the defendant's senses to oversee or overhear the plaintiff's private affairs; or (3) some other form of investigation into plaintiff's private concerns. Restatement (Second) of Torts § 652B cmt. b (1976); Harris, 483 A.2d at 1383. Defendant is subject to liability under this section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about her person or affairs. Restatement (Second) of Torts § 652B cmt. c (1976). There is no liability unless the interference with the plaintiff's seclusion is both substantial and highly offensive to the ordinary reasonable person. Id. cmt. d; Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3d Cir.1992). Defendant first contends that Plaintiff had no

C. Conspiracy Claims

FN9

FN9. Count 3 brings a conspiracy claim under 42 U.S.C. § 1983 against the City of Reading and the individual Defendants in their official capacities. Count 4 brings the same conspiracy claim against the individual Defendants in their individual capacities. *7 Plaintiff also alleges that the Defendants conspired to violate her First Amendment rights. To demonstrate a conspiracy under § 1983, a plaintiff must show: (1) there was a single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences; (2) the purpose of the plan was to violate a constitutional right of the plaintiff; (3) an overt act resulted in an actual deprivation of the plaintiff's constitutional rights; and (4) the constitutional violation was the result of an official custom or policy of the municipality. Sieger v. Township of Tinicum, Civ.A. No. 89-5236, 1990 W L 10349, at *2 (E.D.Pa. Feb. 6, 1990). As discussed above, Plaintiff has failed to demonstrate the deprivation of a constitutional right, because she has failed to demonstrate retaliation under the First Amendment. Accordingly, her conspiracy claims fail,

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expectation of privacy with respect to her e-mail communications. Some courts have held that there is no reasonable expectation of privacy in e-mail communications. See Smyth v. Pillsbury Co., 914 F.Supp. 97, 101 (E.D.Pa.1996) ("[U]nlike urinalysis and personal property searches, we do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system n o tw ith sta n d i n g a n y a ss u r a n c e s th a t s u c h communications would not be intercepted by management."); see also Commonwealth v. Proetto, 771 A.2d 823, 827, 830-31 (Pa.Super.Ct.2001) (rejecting criminal defendant's challenge under the Fourth Amendment that e-mail evidence used against him at trial was improper). Smyth and Proetto do not necessarily foreclose the possibility that an employee might have a reasonable expectation of privacy in certain e-mail communications, depending upon the circumstances of the communication and the configuration of the e-mail system. See, e.g., McLaren v. Microsoft Corp., No. 05-97-00824-CV, 1999 Tex.App. LEXIS 4103, at *10-12 (Tex.Ct.App. May 28, 1999) (examining the configuration of the company e-mail system to determine if there was an expectation of privacy). *8 In this case, however, the uncontroverted evidence demonstrates that Plaintiff did not have a reasonable expectation of privacy with respect to her e-mail. The City's Guidelines regarding the expectation of privacy of e-mail messages, which are uncontroverted, explicitly informed employees that there was no such expectation of privacy: Messages that are created, sent, or received using the City's e-mail system are the property of the City of Reading. The City reserves the right to access and disclose the contents of all messages created, sent, or received using the e-mail system. The E-mail system is strictly for official City of Reading messaging. (Defs.' Ex. T ("Guidelines")). Plaintiff signed an acknowledgment that she had received and read the Guidelines on September 16, 1999. (Id.; Kelleher Dep. at 431-33.) Although Plaintiff contends that other employees were not subject to such review, she adduces no evidence to support her allegations, and, in fact,

Defendant presents evidence, again uncontroverted, of at least one other instance in which an employee had his e-mail communications monitored and reviewed. (Defs.' Ex. C ("Tangredi Dep.") at 131-32.) It is clear from the undisputed evidence in the record that there is no genuine issue of material fact, and that the Plaintiff clearly lacked a reasonable expectation of privacy with respect to her e-mail communications on the City of Reading's e-mail system. See Smyth, 914 F.Supp. at 101. Aside from the e-mail communications, Plaintiff alleges that Defendant "disseminated information about the executive session in which it was decided to suspend her without pay for one week; and/or disseminated information about the Ethics Complaint which had been lodged against her." (Compl. ¶ 109.) W hether these allegations are sufficient to support the intrusion upon seclusion claim depends on whether Plaintiff had a reasonable expectation of privacy in this information. Plaintiff alleges that the information involved was not part of the public record, and that she therefore had a reasonable expectation of privacy in this information. FN10 However, Plaintiff adduces no evidence to support her contention that she had a reasonable expectation of privacy in this information. Although she testified in her deposition that Mayor Eppihimer had previously said that the reasons that he fired an employee were confidential, such evidence does not tend to demonstrate that her being disciplined by a different body-here, the City Council-is similarly confidential.

FN10. If, for example, this information was deemed to be part of the public record, then there could be no intrusion upon seclusion for publicizing the information. Restatement (Second) of Torts § 652B cmt. c. *9 Similarly, Plaintiff's privacy claim fails under the publicity of private life theory. Section 652D of the Restatement (Second) of Torts states: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter published is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the

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public. Restatement (Second) of Torts § 652D; Harris, 483 A.2d at 1384. To state a cause of action, the plaintiff must prove that the defendant (1) publicized (2) private facts (3) that would be highly offensive to a reasonable person, and (4) are not of legitimate concern to the public. Id. The publicity element requires that the matter be communicated "to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Kryeski v. Schott Glass Techs., Inc., 426 Pa.Super. 105, 626 A.2d 595, 601 (Pa.Super.Ct.1993) (quoting Restatement (Second) of Torts § 625E (1976)); Harris, 483 A.2d at 1384. Disclosure of information to only a small number of people is insufficient to constitute publicity. See Kryeski, 626 A.2d at 602 (disclosure to two people is insufficient); Harris, 483 A.2d at 1384 (disclosure to one person is insufficient). To determine if facts are "private facts," the line is drawn "when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. The limitations, in other words, are those of common decency...." Restatement (Second) of Torts § 652D cmt. h. In this case, Plaintiff adduces no evidence demonstrating that the fact of her suspension by the City Council constitutes private information, the publication of which would offend standards of decency. Plaintiff has cited no evidence demonstrating that she had any expectation of privacy in this information, which related to her professional conduct in the course of her job as the clerk for the City Council. *10 Furthermore, even if Plaintiff did adduce evidence establishing that she had a privacy right in the fact of her being suspended by the City Council, or that the fact of her suspension constituted private facts the disclosure of which would represent an intrusion into her private life, she has adduced no evidence that

Defendant Cramsey, the only Defendant remaining in this Count, took any action to publicize or distribute the information. Plaintiff's only evidence is testimony from her deposition that Cramsey spent a great deal of time with Mayor Eppihimer. Such evidence is insufficient to support an inference that proves Plaintiff's position. For these reasons, the Court grants judgment in favor of Defendant Cramsey as to the invasion of privacy claims.

III. Conclusion For all of the above reasons, the Court grants Defendant W altman's Motion for Summary Judgment and Defendants City of Reading, Joseph Eppihimer, and Kevin Cramsey's Motion for Summary Judgment. The claims against Defendant W altman are dismissed under the doctrine of qualified immunity. Judgment is entered in favor of the remaining Defendants on all of the remaining claims. An appropriate Order follows.

ORDER AND NOW , this day of May, 2002, upon consideration of Defendants' Unopposed M otion to File Reply Brief (Doc. No. 26), IT IS HEREBY ORDERED that said Motion is GRANTED and the Reply Brief is filed herewith. IT IS FURTHER ORDERED that: 1. Upon consideration of Plaintiff's Motion to Amend Response to Defendants' Motion for Summary Judgment (Doc. No. 28), and the response thereto, said Motion is GRANTED and the Response is considered AMENDED as specified by Plaintiff. 2. Upon consideration of Defendant Jeffrey W altman's Motion for Summary Judgment (Doc. No. 16), and all responsive and supporting briefing, IT IS HEREBY ORDERED that said Motion is GRANTED. All claims against said Defendant are DISM ISSED under the doctrine of qualified immunity. 3. Upon consideration of Defendants City of Reading, Joseph D. Eppihimer, and Kevin Cramsey's Motion for Summary Judgment (Doc. No. 21), and all responsive

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and supporting briefing, IT IS HEREBY ORDERED that said Motion is GRANTED. Judgment is ENTERED in favor of said Defendants on all remaining counts.

E.D.Pa.,2002. Kelleher v. City Of Reading Not Reported in F.Supp.2d, 2002 W L 1067442 (E.D.Pa.) Briefs and Other Related Documents (Back to top) · 2:01CV03386 (Docket) (Jul. 05, 2001) END OF DOCUMENT

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Judge of the United States Court of International Trade, sitting by designation. Briefs and Other Related Documents Only the W estlaw citation is currently available.This case was not selected for publication in the Federal Reporter.NOT PRECEDENTIAL Please use FIND to look at the applicable circuit court rule before citing this opinion. Third Circuit Local Appellate Rule 28.3(a) and Internal Operating Procedure 5.3. (FIND CTA3 Rule 28.0 and CTA3 IOP APP I 5.3.) United States Court of Appeals,Third Circuit. Thomas F. LAPINSKI, Appellant v. THE BOARD OF EDUCATION OF THE BRANDYW INE SCHOOL DISTRICT; Joseph P. Dejohn; Donald Fantine, Jr.; Ralph Ackerman; Paul Hart; Robert Blew; Nancy Doorey; G. Lawrence Pelkey, Jr.; G. Harold Thompson; Raymond Tomasetti, Jr. No. 04-1709. Argued Jan. 10, 2005. Decided Jan. 24, 2006.

OPINION OF THE COURT ROTH, Circuit Judge. *1 Appellant Thomas F. Lapinski appeals the decision by the District Court granting summary judgment for appellees. W e will reverse and remand.

I The facts of this case are set forth in detail in the District Court's opinion. W e briefly set forth only the most relevant facts here, in the light most favorable to Lapinski. Lapinski alleges that, during his time as principal of Mount Pleasant High School (MPHS), appellees engaged in certain retaliatory actions against him due to "whistle blowing" letters he wrote and statements he made to appellee former superintendent Joseph P. DeJohn and other Brandywine School District administrators. The specific whistle blowing activities are set forth in the District Court's opinion, see Lapinski v. Bd. of Educ., No. 00-173, 2004 U.S. Dist. LEXIS 1124, at *3-7 & nn. 3-4 (D.Del. Jan. 29, 2004), and we will not repeat them here. Lapinski alleges that in response to these whistle blowing activities, appellees decided in December 1999 not to renew his employment contract, though under Delaware law Lapinski could have stayed on at MPHS as a teacher, earning a teacher's salary rather than the higher principal's salary. On March 13, 2000, Lapinski filed a complaint alleging, inter alia, various forms of First Amendment retaliation. On January 29, 2004, the District Court granted appellees' motion for summary judgment. Lapinski thereafter filed a motion for reargument, which the District Court denied.

On Appeal from the United States District Court for the District of Delaware. (Dist.Ct. No. 00-cv-00173). District Judge: Hon. Kent A. Jordan. Swartz Campbell LLC, W ilmington, Delaware, By: Neil R. Lapinski (Argued), for Appellant. Young Conaway Stargatt & Taylor, LLP, W ilmington, Delaware, By: Barry M. W illoughby (Argued), W illiam W . Bowser, Scott A. Holt, for Appellees. Before ROTH and CHERTOFF, FN* Circuit Judges, and RESTANI, FN** Chief Judge. FN* Judge Chertoff heard oral argument in this case but resigned prior to the time the opinion was filed. The opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d). FN** The Honorable Jane A. Restani, Chief

II

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Our review of a District Court's grant of summary judgment is plenary. See Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir.2003). W e assess the record using the same summary judgment standard that guides district courts. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.2000). To prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In granting appellees' motion for summary judgment, the District Court noted that Lapinski had voluntarily resigned as the principal of MPHS after learning that appellees did not intend to renew his contract. Concluding that an employee's decision to resign or retire, even in the face of pending termination, is presumptively voluntary, the District Court required Lapinski to show that he had been constructively discharged. W e need not address whether Lapinski was constructively discharged, as appellees' failure to renew Lapinski's employment contract constitutes an adverse employment action for purposes of Lapinski's First Amendment retaliation claim. In Suppan v. Dadonna, we held that defendants' action of placing plaintiffs lower on promotion ranking lists in retaliation for the exercise of their First Amendment free speech rights was sufficiently adverse to state a claim for retaliation. 203 F.3d 228, 234-35 (3d Cir.2000). In doing so, we relied primarily on Rutan v. Republican Party, 497 U.S. 62 (1990). The Rutan "Court rejected the argument that the First Amendment rights of public employees had `not been infringed because they [had] no entitlement to promotion, transfer, or rehire." ' Suppan, 203 F.3d at 234 (alteration in original) (quoting Rutan, 497 U.S. at 72). See also Brennan v. Norton, 350 F.3d 399, 419 (3d Cir.2003) ("A public employer adversely affects an employee's First Amendment rights when it refuses to rehire an employee because of the exercise of those rights or when it makes decisions, which relate to promotion, transfer, recall and hiring, based on the exercise of an employee's First Amendment rights." (quotation marks omitted)).

*2 W e therefore conclude that appellees' failure to renew Lapinski's employment contract was "sufficient to deter a person of ordinary firmness from exercising his First Amendment rights," Suppan, 203 F.3d at 235. That Lapinski had a right under Delaware law to remain at MPHS as a teacher does not change our conclusion. Even though appellees could not have terminated Lapinski's employment entirely, the nonrenewal was a demotion in title and salary and therefore actionable conduct. See, e.g., Brennan, 350 F.3d at 419; Baldassare v. New Jersey, 250 F.3d 188, 201 (3d Cir.2001) (noting that it is clearly established that a public employee cannot be demoted in retaliation for exercising his or her First Amendment rights).

III For the foregoing reasons, we will reverse the judgment of the District Court and remand for further proceedings not inconsistent with this opinion. C.A.3 (Del.),2006. Lapinski v. Board of Educ. of Brandywine School Dist. Slip Copy, 2006 W L 167443 (C.A.3 (Del.)) Briefs and Other Related Documents (Back to top) · 04-1709 (Docket) (Mar. 18, 2004) END OF DOCUMENT

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Only the W estlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Superior Court of Delaware, New Castle County. James L. MARTIN, Plaintiff, v. W IDENER UNIVERSITY SCHOOL OF LAW , Anthony J. Santoro and Mitchell S. Bierman, Defendants. Civ.A. No. 91C-03-255. Submitted: Aug. 29, 1991. Decided June 4, 1992. Memorandum Opinion Submitted: Aug. 12, 1991. Decided June 17, 1992.

W hen applying to W idener in 1979, Martin answered "no" to a question asking if he had ever been a patient in a mental, penal or correctional institution. This was not a correct answer as M artin had been FN2 institutionalized in 1975. W idener later communicated to various state bar examiners Martin's incorrect answer. An avalanche of litigation, including this matter, has ensued.

FACTS Some of the claims raised in this litigation result from events which occurred in the last several years since W idener's communication to various boards of bar examiners. On July 14, 1989 Dr. Eric Copeland [Copeland], who refers to himself as a client of Martin, called Santoro and tape-recorded their phone conversation. Martin claims Santoro slandered him in this conversation. Martin supplied transcribed portions of the conversation with his complaint. The details of that conversation will be discussed as necessary to resolve the allegations. On February 18, 1990, The Philadelphia Inquirer [Inquirer] published an article detailing the controversy, "1 answer thwarts his law career" [Appendix A]. The article was sympathetic to Martin in that it highlighted the opinion of professors from two other law schools who stated they would have overlooked Martin's lack of candor and would not have communicated any related facts to the various bar examiners. The article also gave full detail to Martin's explanation of the events. Defendants claim Martin solicited the article by approaching the reporters. Martin denies he voluntarily sought the publicity. The Delaware Law Forum [Forum ] is a small topical newspaper with circulation to W idener's students, faculty, alumni and the local legal community. Staff writer Bierman authored an article that summarized the Inquirer article. Bierman quoted extensively from and repeatedly referenced the Inquirer article to the degree of precise page number per quote. Delaware Law

U p o n M o t io n o f P l a in tiff f o r S u m m a r y Judgment-Denied, Upon Motion of Defendants to Dismiss-Granted. James L. Martin, pro se. Somers S. Price, Jr., of Potter, Anderson & Corroon, for defendants. OPINION HERLIHY, Judge. *1 Presently before the Court are two motions. The first motion filed is defendants' motion to dismiss for failure to state a claim under Superior Court Rule 12(b)(6). The second motion filed is plaintiff's motion for summary judgment. Plaintiff James L. Martin [M artin] has filed suit in this Court against W idener University School of Law FN1 [W idener], its dean Anthony J. Santoro [Santoro] and a W idener newspaper writer Mitchell S. Bierman [Bierman] [collectively "defendants"]. This last suit stems from a long-standing dispute between M artin and W idener.

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Forum, May 1990, Vol. 17, No. 6 [Appendix B]. Pertinent portions of the article will be discussed as is necessary to resolve the issues herein. Martin seeks various forms of relief: (1) an injunction against W idener preventing any further dissemination of information about him without his consent; (2) a "declaratory judgment" to purge W idener's files on him which he contends are defamatory; (3) damages for alleged libel by the defendants W idener and Bierman; (4) damages against W idener and Santoro for slander; and (5) damages from all defendants for invading his privacy. The basis of Martin's action is that several or all of the defendants (1) falsely reported his W idener graduation date, (2) recast his personal and academic history, (3) misrepresented his litigation against the law school, (4) falsely wrote about his contacts with certain hospitals which are the subject matter of other litigation, (5) falsely described his high school career, (6) falsely wrote about police contacts he had, and (7) falsely described his litigation in New Jersey and his bar status there. These claims will be detailed later as is necessary to resolve them. *2 Defendants argue that the doctrine of res judicata or collateral estoppel and/or lack of merit to Martin's complaint entitle them to judgment in their favor. They also contend this Court lacks jurisdiction to grant Martin's request for equitable relief. Believing no genuine issues of material fact exist, Martin, in turn, contends he is entitled to summary judgment.

A motion for summary judgment may only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pullman, Inc. v. Phoenix Steel Corp., Del.Super., 304 A.2d 334 (1973). All facts and inferences are considered in a light most favorable to the non-moving party. Shultz v. Delaware Trust Co., Del.Super., 360 A.2d 576 (1976).

RES JUDICATA As noted, Martin has filed a number of law suits involving claims against W idener. The claims he brought against W idener in one of those suits are summarized as follows:

BACKGROUND FACTS. The relevant facts, as alleged by Plaintiff [M artin] in his Complaint and various briefs, are as follows. Plaintiff claims that Polyclinic and Philhaven admitted and detained him against his will without cause or hearing. Apparently, this action occurred in 1975. Plaintiff alleges that Philhaven subsequently erroneously informed the Law Examiners that he had voluntarily admitted himself to Philhaven for psychiatric care. He alleges that L.V.C. [Lebanon Valley College], where Plaintiff had been an undergraduate student, falsified his transcripts and supplied "disinformation" to employees of Polyclinic and Philhaven, which was later given to the Law Examiners. Plaintiff alleges that Defendants James Reilly and John Feather, in their capacities as Lebanon County Legal Services attorneys, acted improperly by agreeing to represent Plaintiff in a proceeding against L.V.C., while they were associates of the law firm which was representing L.V.C. Plaintiff alleges that Defendants Judge Gates and Judge W alters improperly "issued orders against him" in his efforts to "get relief from the college's disinformation scheme". Plaintiff alleges that [W idener] refused to send his transcript to the U.S. Department of Justice, thus preventing him from obtaining full-time employment. Plaintiff alleges that [W idener] also erroneously concluded that he had falsified his law school application by denying that he had been

STANDARD A motion to dismiss for failure to state a claim upon which relief can be granted made pursuant to Superior Court Rule 12(b)(6) will not be granted if the plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. Spence v. Funk, Del.Supr., 396 A.2d 967 (1978). In considering this motion, all well-pleaded allegations in the complaint must be accepted as true. American Ins. Co. v. Material Transit, Inc., Del.Super., 446 A.2d 1101 (1982).

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committed to a mental hospital, and later sent this information to each of the State Boards of Law Examiners to which Plaintiff had applied for admittance. Plaintiff alleges that the Law Examiners refused to admit him to the Bar after he passed the Bar Examination. Plaintiff alleges that the [Pennsylvania] D.O.T. improperly revoked his driver's license in 1981 by relying upon "not [sic] existent medical reports about a neuro-psychiatric condition", and that [Commonwealth National Bank] wrongfully dishonored his checks following his enrollment in law school after agreeing not to do so. *3 Martin, 625 F.Supp at 1293, aff'd. 884 F.2d 1384 (3rd Cir.1989), cert. denied, 110 S.Ct. 411 (1989), reh'g denied, 110 S.Ct. 766 (1990). In another action, filed in Pennsylvania, Martin made five claims against W idener and Santoro with their dispositions as follows: ]W idener] and [Santoro] are named, either specifically or as one of "the defendants" by plaintiff in five claims arising under federal statutes or the United States Constitution: the first claim (Rehabilitation Act of 1973 29 U.S.C. § 794); second claim (fourteenth amendment equal protection clause); third claim (first amendment right to freedom of association); fourth claim (fourteenth amendment guarantee of due process); and eleventh claim (Family Education Rights and Privacy Act 20 U.S.C. § 1232). These defendants argue that plaintiff is barred from pursuing these claims, inter alia, under the doctrine of res judicata [sic]. The claims recited in plaintiff's instant complaint are based on the law school's determination that plaintiff made a knowing misrepresentation on his law school application and communicated this finding to the Pennsylvania Board of Law Examiners. In 1985 plaintiff initiated civil action No. 85-53 in the United States District Court for the District of Delaware naming, inter alia, [Widener] as a defendant and alleging virtually identical facts and claims recited in the instant complaint. (See plaintiff's complaint filed in CA 85-53 attached as court exhibit B). In particular, plaintiff alleged [Widener] violated his rights provided under the Rehabilitation Act of 1973, 29 U.S.C. § 794; Title 7, 42 U.S.C. § 2000e-2; 42 U.S.C. §§ 1983, 1985 and 1986; Fourteenth amendment; and the Family

Educational Rights and Privacy Act of 1976, 20 U.S.C. § 1232g. All of these claims were dismissed by the District Court in December of 1985, (Martin v. Delaware Law School of Widener University, 625 F.Supp. 1288, 1302 (D.Del.1985)). Plaintiff, however, was permitted to file an amended complaint. In October of 1986, the court held that the amended complaint "merely rehashes the allegations in the original Complaint, which this Court has found to be insufficient" [sic] Martin v. Delaware Law School of Widener University. [sic], No. 85-53 Civ. 3. (D.Del October 16, 1986). The Amended Complaint was dismissed with prejudice. An appeal was unsuccessful. Martin v. Delaware Law School of Widener University, 625 F.Supp. 1288 (D.Del.1985), aff'd 884 F.2d 1384 (3rd Cir.1989), cert. denied 110 S.Ct. 422, reh'g. denied, 110 S.Ct. 766 (1990). W hile seeking appellate relief, plaintiff filed civil action 88-0768 on March 22, 1988 in the U nited States District Court for the District of Columbia naming [W idener] and [Santoro], inter alia, as defendants (see court exhibit C). This complaint alleged facts and claims virtually identical to those averred in civil action 85-53 and was dismissed as "barred under the principles of res judicata [sic]." Martin v. Delaware Law School of Widener University, Inc., et al., [sic] No. 88-0768 Civil (D.D.C. July 22, 1988). *4 Martin v. Walmer, D.C.E.D.Pa., C.A. No. 90-2752 at 8-10, Huyett, J. (September 26, 1990). All five claims were dismissed on grounds of claims or issue preclusion. Id. at 10-11; Napier v. Thirty or More Unidentified Fed. Agents, 855 F.2d 1080 (3rd Cir.1988). It is unnecessary to catalogue the multitude of state and federal law suits Martin has filed in Pennsylvania, New Jersey, D elaware, Virginia and the District of Columbia. See, e.g., Martin v. Delaware Law School of Widener Univ., D.C.Del., C.A.No. 88-298-JJF (December 14, 1990) (memorandum opinion); Martin's opening brief before Third Circuit, Appeal No. 91-3026, January 24, 1991 [Appendix C]. Defendants assert that most of M artin's claims are barred by the principle of res judicata now also referred

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to as claim preclusion or by collateral estoppel, now also known as issue preclusion. The doctrine of claim preclusion holds that a final judgment upon the merits rendered by a court of competent jurisdiction operates as a bar and prevents relitigation of all grounds for, or defenses to, recovery that were then available to the parties before the particular court rendering the judgment in relation to the same claim regardless of whether all grounds for recovery or defenses were judicially determined. Federated Dept. Stores v. Moitie, 452 U.S. 394, 398 (1981); Trans World Airlines, Inc. v. Hughes, Del.Ch., 317 A.2d 114, 118 (1974) aff'd, 336 A.2d 572 (1975). Defendants argue that the present action is grounded in the "basic transaction of his conduct in submitting his application, the related background and related events thereafter." Defendants contend this action is simply a repackaging of the old underlying claim concerning W idener's communication to various state bar examiners. The modern transactional view of res judicata bars litigation between the same parties if the claims in the later litigation arose from the same "transaction" that formed the basis of the prior adjudication and not on the substantive legal theories or types of relief sought. The modern transactional view of the doctrine ... does not require that the claim subsequently asserted be based on a same cause of action to be barred, but permits the doctrine to be invoked to bar litigation between the same parties if the claims in the later litigation arose from the same transaction that formed the basis of the prior adjudication.... The determination, therefore, whether the doctrine shall be invoked is now based on the underlying transaction and not on the substantive legal theories or types of relief which are sought. Under the modern rule, ordinarily, a transaction gives rise to only one claim regardless of the number of ways that the claim may be asserted. Maldonado v. Flynn, Del.Ch., 417 A.2d 378, 381 (1980); rev'd on other grounds sub nom., Del.Supr., 430 A.2d 779 (1981). The Restatement (Second) of Judgments § 24, comment b (1982) describes a "transaction" as:*5 In general, the expression connotes a natural grouping or common nucleus of operative

facts. Among the factors relevant to a determination whether the facts are so woven together as to constitute a single claim are their relatedness in time, space, origin, or motivation, and whether taken together, they form a convenient unit for trial purposes. Though no single factor is determinative, the relevance of the trial convenience makes it appropriate to ask how far the witnesses or proofs in the second action would tend to overlap the witnesses or proofs relevant to the first. If there is a substantial overlap, the second action should ordinarily be held precluded.

Despite defendants' portrayal of these occurrences as "one lengthy transaction", this Court recognizes a new transaction having occurred upon publishing the article in the school newspaper. The libel and invasion of privacy claims against W idener and Bierman arise from that new transaction. The act of publishing the Forum article is remote in time from the initial transaction, creating a new origin for the defamation and invasion of privacy claims. Any attempt to relitigate the initial transaction concerning the W idener communication of Martin's negative response on the law school application is precluded by the doctrine of res judicata. Applying this principle, the prayers for injunctive and declaratory relief are barred.

Injunctive Action M artin seeks to enjoin W idener from issuing any statements concerning his medical condition, standing as an attorney or performance as a student. The basis for this claim stems from the initial transaction and despite repackaging with additional defendants and new forms of relief, the claim is precluded by the doctrine of claim preclusion. A court of competent jurisdiction rendered a final judgment upon the merits. Martin v. Delaware Law School of Widener University, et al., D.Del., C.A.No. 85-53-JJF, Farnan, J. (October 16, 1986). "It is simply not fair to require a defendant to return to court time and time again to defend against the same allegations as plaintiff moves from one theory of recovery to another." Poe v. Kuyk, D.Del., 448 F.Supp. 1231, 1234 (1978), aff'd, 591 F.2d 1336 (3rd Cir.1979), cert. denied, 442 U.S. 943 (1979).

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Further, Martin's request for injunctive relief is not within the jurisdiction of this Court. Delaware Constitution, Article IV, §§ 7 and 10. While the request for such relief could be transferred to Chancery Court pursuant to 10 Del.C. § 1901, claim preclusion, at a minimum, otherwise prevents it.

against Santoro is issue barred. Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Neoplan USA Corp. v. Taylor, D.C.Del., 604 F.Supp. 1540 (1985).

B Declaratory Judgment Martin also seeks a declaratory judgment to alter and/or delete his school record "to show what actually occurred". "W hat actually occurred" has been litigated. Martin v. Delaware Law School of Widener University, supra. This claim, therefore, is barred by the doctrine of claim preclusion. Despite terming the relief requested as a declaratory judgment, Martin seeks affirmative mandatory relief by asking the Court to alter and/or delete portions of the record. Relief of this type is not within the subject matter jurisdiction of this Court. Further, Martin's request to purge W idener's files on him is in the nature of a request for a mandatory injunction. Such power lies in the Court of Chancery, not this Court. Cf. Simmons v. Steiner, Del.Ch., 108 A.2d 173 (1954), rev'd on other grounds, Del.Supr., 111 A.2d 574 (1955). However, as with his prayer for injunctive relief, claim preclusion prohibits transfer under 10 Del.C. § 1901. Martin's complaint included portions of an apparent transcription of the Santoro-Copeland telephone conversation. An alleged "authenticated", full transcription is included with Martin's motion for summary judgment. While there is insufficient authentication of the transcription, for purposes of the motions, the Court will view the transcription as full and accurate. Copeland telephoned Santoro and asked to meet with him about alleged deficiencies in W idener's records on Martin. Santoro expressed a willingness to listen to Copeland but remarked that W idener was in litigation with Martin. There is a reference to a letter Copeland previously sent to Santoro with many people copied, including Delaware Governor Castle. FN3 The conversation boils down to this alleged exchange: Santoro: Basically, what is it you want? Copeland: I want to know why the law school has not corrected misrepresentations about Mr. Martin's character. He did not lie on his answer to question number 6 [that is the question which inquired about prior mental institutionalization].

COPELAND CONVERSATION A

*6 Martin seeks damages from W idener and Santoro. Martin argues that Santoro's remarks were defamatory per se. He argues Santoro "tried to justify [Widener's] view that I should not be certified for practicing law ... imputed a mental disease upon me ... and interfered with my law licenses by claiming I am also dishonest...." It is clear that while the telephone conversation occurred in 1989, the underlying complaint against Santoro relates back to the fundamental, oft-litigated dispute between W idener and Martin. Martin has been uniformly unsuccessful in all that litigation. Thus, on this ground alone, his claim

Copeland repeated a number of allegations and claims Martin has made in his numerous law suits. As noted above, the issues Copeland raised have been explored exhaustively and rejected in M artin's prior law suits. M artin v. Sparks, D.C.Del, No. 90-235, Huyett, J. (August 16, 1991). They may not be relitigated now. The remaining issue under this claim arising out of the Santoro-Copeland telephone conversation is whether anything Santoro said was defamatory. "Defamation generally is understood as a false publication calculated to bring one into disrepute." Snavely v. Booth, Del.Super., 176 A. 649, 654 (1935). The gist of an action for defamation is the injury to

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reputation, business or occupation. It must expose a plaintiff to public contempt or ridicule or lower him in the estimation of the community in which he lives. Danias v. Fakis, Del.Super., 261 A.2d 529, 531 (1969); Pierce v. Burns, Del.Supr., 185 A.2d 477, 479 (1962). A plaintiff in a defamation action is presumed to have stated his claim in the best light. Snavely, 176 A. at 654. In determining whether words are defamatory, the Court must take their plain and natural meaning and understand them as would a person of average intelligence and perception. Danias, 261 A.2d at 531. The Court cannot find anything defamatory in what Santoro said to Copeland. The references to events which Martin claims are defamatory are by Copeland not Santoro. *7 Prior to Copeland's telephone call to Santoro, Martin had executed a release to Copeland to examine and copy "neuropsychiatric records about me" from Dr. Rebecca Jaffe [Appendix D]. Shortly after this telephone conversation, Martin signed a release in favor of Copeland waiving "any confidentiality rights" to his W idener file [Appendix E]. The "waiver" also included authority for Copeland to copy Martin's records. It is inconceivable that with all the litigation occurring prior to the telephone conversation, Martin's relationship with Copeland FN4 and the prior and subsequent releases that anything defamatory occurred during the conversation. Martin's claim against W id en e r a n d S a n to ro a rising out of the Copeland-Santoro telephone conversation is utterly without merit. The defendant's motion to dismiss this claim will be GRANTED. Martin's motion for summary judgment on this claim is DENIED.

defamed by various specific portions of the article and by the thrust of the entirety of the article. Resolution of the motions on these claims, in turn, requires resolution of a series of threshold issues.

A The first of these issues is to determine Martin's status. The United States Supreme Court and the Delaware Supreme Court have recognized that a public official may not recover in libel unless he or she can show that the media source printed a defamatory falsehood relating to official conduct with actual malice, that is, that the statement was made with knowledge it was false or with reckless disregard of whether or not it was false. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Ross v. News Journal Co., Del.Supr., 228 A.2d 531 (1967). Martin is not a public official, However, the United States Supreme Court and the Delaware Supreme Court have recognized that in certain circumstances a non-public official can become a public figure. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Gannett Co., Inc. v. Re, Del.Supr., 496 A.2d 553 (1985). The original language defining a public figure is found in Gertz: In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. Gertz, 417 U.S. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812.

FORUM ARTICLE Martin seeks damages from W idener, Santoro and Bierman for an article Bierman authored which was published in the Forum [Appendix B]. As described earlier, ante at 2, this newspaper is circulated to Delaware Law School students, faculty, alumni and the local legal community. Martin claims that he was

B There can be no argument that M artin does not fit into the first category of public figure. The question is

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whether he fits into the second, "limited" category. There are several guidelines to answer this question. It is necessary to examine the nature and extent of Martin's participation in the controversy giving rise to alleged defamation. Gertz, 418 U.S. at 352, 94 S.Ct. at 3013, 41 L.Ed.2d at 812. A collateral issue is how much did M artin engage the public in an attempt to influence the resolution of the issues involved. Wolston v. Reader's Digest Ass'n. Inc., 443 U.S. 157, 168, 99 S.Ct. 2701, 2707, 61 L.Ed. 450, 460 (1979).

to our Bar." Kosseff v. Board of Bar Examiners, Del.Supr., 475 A.2d 349, 353 (1984). In recognizing the licensure of lawyers as a public controversy, this Court concludes that the licensing procedures affect "the general public or some segment of it in an appreciable way," meeting the Waldbaum standard. The unremitting duty of candor to all persons charged with investigating and passing upon an applicant's qualifications is "a dispute ... between sides holding opposing views" and, thus, meets the controversy standard set forth in Gannett. Gannett, 496 A.2d at 556. This Court rejects the notion that merely because most people would agree that there is a duty of candor for Bar applicants, there is no "controversy" regarding this matter. M arcone v. Penthouse Intern. Magazine for Men, 754 F.2d 1072, 1083 n. 8 (3rd Cir.1985). FN5 In Connolly v. Labowitz, Del.Super., 519 A.2d 138 (1986) this Court concluded that the dissemination of information concerning the qualification and performance of a particular physician is not a matter of public concern. The court considered whether applying traditional libel standards, instead of constitutional standards, would have a chilling effect on the "unfettered interchange of ideas for the bringing about of political and social changes desired by the people". Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 759, 762-63, 105 S.Ct. 2945, 2957, 86 L.Ed.2d 602, 605 (1985). The court reasoned that because 24 Del.C.