Opinion
C.A. No. 04C-07-032 PLA.
Submitted: December 16, 2004.
Decided: December 21, 2004.
Upon Defendants' Motion to Dismiss GRANTED IN PART/DENIED IN PART
Edward J. Romanowski, pro se.
Frank E. Noyes, II, Esquire, Wilmington, Delaware, Attorney for Defendants.
ORDER
Defendant's Motion To Dismiss for failure to state a cognizable claim is GRANTED IN PART. It appears to the Court that:
Facts
Plaintiff Edward Romanowski was employed as an alarm salesman by defendant Wayman Fire Protection, Inc. ("WFP") for many years. Defendant Duane Wayman owns WFP, and though the complaint is unclear on this point, possibly the other corporate defendants. Defendants Wayne Wilson and Robert Weitzel are officers of WFP, and Weitzel was Romanowski's immediate supervisor during the relevant time period.
WFP fired Romanowski on July 9, 2002. The stated reasons for termination were Romanowski's involvement in a bid-rigging scam for a job at Drexel University, his failure to meet sales goals, and his failure to follow Weitzel's instructions. Romanowski's version is that Weitzel and Drexel University scape-goated him for the bid-rigging scam in order to protect their own cronies that were also involved. He also claims that Weitzel took away his accounts with other customers and gave them to his friends, ensuring that he could not meet his sales goals. Finally, Romanowski claims that Weitzel set him up for termination by orally telling him to ignore sales goals, and then reprimanding him in writing for doing so. Wayman and Wilson allegedly endorsed or ordered this conduct.
After firing Romanowski, Weitzel wanted to ensure that he would not take his accounts with him. Weitzel allegedly held a meeting of all the company's salesmen, the topic of which was "how to keep Ed Romanowski from getting to his old accounts." It seems that the consensus of this meeting was to tell all of Romanowski's old contacts that he was fired for being incompetent and unethical. Romanowski has evidence that Weitzel made phone calls to numerous people in the alarm business, making remarks to that effect.
Procedural Posture
Romanowski filed his initial complaint on July 7, 2004, alleging that Weitzel's phone calls to Romanowski's clients constituted slander. Romanowski claims that his professional reputation has been damaged, causing him to lose earnings. He also claims that the stress caused by the alleged slander caused him to develop nervous disorders requiring medical treatment.
The first complaint was written as a long and often incomprehensible narrative, leaving it impossible for the defendants to respond in accordance with Superior Court Civil Rule 8. This led to a motion for a more definite statement, which the Court granted on August 23, 2004. The Court warned Romanowski at that time that he had failed to state a claim, that his complaint did not comply with Superior Court Rules, and that, in the Court's opinion, he would need to hire an attorney to pursue the matter. Romanowski assured the Court that he would hire an attorney and comply with court rules in the future.
Despite this, Romanowski did not hire an attorney, and resubmitted the first complaint largely unchanged. The major difference was that he numbered each paragraph; however, these newly numbered paragraphs still do not state an insular averment or legal conclusion that the defendants can admit or deny. Romanowski also seems to have scoured a tort textbook for every action relating to employment, and has alleged numerous torts having little or nothing to do with the underlying claim of defamation. This led to Defendants' motion to dismiss for failure to state a claim, which the Court heard on December 16, 2004.
Romanowski did not appear for oral argument, claiming that he is ill. This is not a problem, however, because the written pleadings in the case provide sufficient grounds for the Court to decide this motion. Moreover, the proceeding was scheduled solely for the purpose of argument, and not for hearing any testimony.
Standard
On a Rule 12(b)(6) motion, a complaint will be dismissed if "[i]t appears to a certainty that, under no set of facts which could be proved to support the claim asserted, would the plaintiff be entitled to relief." A motion to dismiss measures the face of the complaint, rather than other outside evidence.Discussion
It is clear that the complaint has failed to state a claim against every defendant except Weitzel. The complaint does not even mention Defendants Wayman Associates, Inc. and Wayman Resources, Inc., and thus states no claim against them. The complaint attempts to link Wayman and Wilson to Weitzel's alleged defamation through vicarious liability, but states none of the elements necessary to establish that relationship. Wayman and Wilson must also therefore be dismissed from the action. Similarly, the complaint does not adequately allege that Weitzel made the slanderous remarks on behalf of WFP. Instead, the complaint suggests, though painfully unclearly, that Weitzel made the disputed remarks to conceal his own incompetent and unethical conduct. The claims against WFP must therefore also be dismissed.
The Court has decided, however, that a genuine issue of fact exists as to whether Weitzel's remarks amount to excessive publication, and, as such, fall outside the conditional privilege of employers to discuss reasons for an employee's termination. Romanowski has submitted affidavits from industry professionals stating that Weitzel called them unsolicited solely to "bash" Romanowski. While an employer is entitled to discuss its reasons for terminating an employee, the conditional privilege does not permit a "scorched-earth" strategy of ensuring that the fired employee will never again be able to work in his industry. The issue of whether Weitzel's phone calls were "reasonable" or "excessive" is a pure question of fact especially suited to determination by a jury. The slander claim against Weitzel must therefore be allowed to proceed.
Finally, the complaint lists numerous employment-related torts. Romanowski has failed in every instance to enumerate and allege the essential elements of these torts, and thus has failed to state them in accordance with Rule 8. Moreover, the defendants correctly point out that most of the torts are preempted by administrative remedies, or relate to discrimination against suspect classes. Dismissal of these claims is therefore appropriate.
Conclusion
For all of these reasons, Defendants' Motion To Dismiss is GRANTED IN PART. All claims except that alleging defamation against Defendant Robert Weitzel are hereby DISMISSED.