a year he quit and then he sought another job with another trucking company called shite area everyone's probably seen it on the  back yes in the case let me start off by asking you about the conditional privilege would perhaps i should say what conditional privilege obtains here mr never use seems to acknowledge that there is a conditional privilege merely by suggesting that the a showing of negligence would be well the district court concluded that there was a conditional privilege for a employer to tell a prospective employer about their employee agreed but what the district court did is they said in order to show an abuse of that privilege my client would have to prove that werner  right standard yes i do say that negligence is the right stand yes all right but how can we agree with you when title forty nine of united states code section five zero eight b and the relat federal regulations have a knowingly false standard well that's because your honor under the hills perry county automated medical laboratories supreme court case which i cite in my brief at the supreme court's very clear that regulations do not as a role  like me when he is at the podium why this case was not fought out on preemption from the start this is this is not only a classic preemption case with a regulatory scheme arising out of the commerce power in the regulations civically of interstate commerce in the trucking industry we've got explicit language within the regulation that speaks to preemption and  yet this was not an issue that apparently was addressed in the district court without a resolution of preemption i mean what do we have the district court just says well i get to conditional privileges here let me choose between them let address the regulations at all because it said well the standard has malice with regulations don't say malice but i do think that under these the supreme court case i  that the state law has not preempted by this single regulation and this is a question of state law interpretation of of the law of libel that's that's traditionally just been a state issue i want to you know federal libel law i like to bring to your attention to something else that they on supreme court pennsylvania said in american futures in a footnote they make a comment that says what they're holding is not meant to do and i'm on them that is quote nor should it be understood to foreclose legislative creation of privileges which may within constitutional limitations require showing a fault greater than negligence isn't it fair to read that language to suggest that even the pennsylvania supreme court recognized that the the regulators the legislatures could create additional privileges that could only be pierced at higher levels and as a result that's that's an affair reading and we don't really have a reaction problem what we do have is a contemplated privilege with its own different level of fault so how does your heels vary case and that language i just try to reconcile well i think the well no because if there is it's silent on whether there was an intent or not that the supreme court is saying that it has to be fixed crystal clear there is an intent you want to preempt state law with a federal regulation or else you think it has all expressly stated it in some fashion yes because so you don't recognize the doctrine of implied preemption or conflict preemption not in not in terms of a federal regulation has to be express ok well into a field it's regulation will be x will be exclusive such a will would be inconsistent with the federal state balance in body and in this court's supremacy clause jurisdiction i think that's very clear that this of the state where negligence is a standard i'm saying that this c f r one sentence in the c f r does not overrule pennsylvania state law on whether it's negligence for some truck driver and then we also just discussed the regulations on another tack and the regulations make a distinction between major accidents and minor accidents these along the way and i apologize to the court for being a truce or at times being myopic the trucking industry is as you're aware is completely regulated by federal regulations in ferry statute that requires a potential employer to seek the information that warner provided requires warner to provide that information and then provides a protections for following the statutes all three minor had to be reported under federal law under the federal regs there are two sections of accidents that can be reported and it's either that i call them the big three fatality dismemberments or vehicle towed or the manner in which you regularly keep your accident information both so you being the employer the employer and both yes for the operating procedures and it's the records that he chooses he corrected so  once one chose to keep these trigger the obligatory report once warner chose to keep them and provide them in response to an employment barrier to provide right ye to do that i think if you keep them in that manner as warner does you have to protect provide them as you keep your accent information wondered does that's what i was asking i'm sorry because word or for whatever reason good business practice is who knows why but because one to chose to keep track of these i couldn't have since it was required to report yes if one or keep some that way they produce in that way they don't get to pick and choose based upon it being bob today fred tomorrow and the reason why they are kept is quite honestly the frequency of minor accidents can be indicative of an accident going forward and drivers are judged upon both minor and larger accidents so the standard is clearly outlined by the district court interestingly used to malice standard you got there again by the wrong road by perhaps i put up the wrong signs for them in the district court but they define our submission to the third circuit we address the the statute the court also can find that the manner in which the district court research citizen was harmless there they got to the right place may have made a mistake or reroute along the way but that mistake was harmless because they applied standard was correct do you think we need to reach preemption based upon the footnote language i write here i'm sorry pennsylvania supreme court contemplated that  branches could come up with other standards they chose well i think it shows you where you can go and that you're not forced to to go to preemption but that the s f two case gives you that out i don't think you have to overall pennsylvania law in any way i think it is and if not controlled by federal regulation then a plaintiff in a pennsylvania defamation action may seek to prove their case be a negligence rather malice i think you have that out without the rectory taking on federal preemption but as far as what standard applies to the provision pursuant to this statute it's federal regs because i think be patently unfair to force a former employee to produce that information or provide that information and that ought not afford him the same protections of the language of the standard which you have to pretend you your client relies on both the research in the minority of a negligent standard as opposed to the mouse standard for the waiver of the conditional privilege most in time they do coincide so i actually have time on the clock and don't need unless i have  thank you whether it's negligence or malice the decision is wrong these three accidents we have solid photographs videotapes that these three accidents were reported falsely ok to say that when that was that you remember it's not that they were reported falsely it's whether the rip i'm sorry you did say that correctly when you talk about the report to the new employer but in the first let's just take the first example according to the records that the defendant had in his own records information in which the plaintiffs said he was the driver based on that information they disclosed it to the new employer now come litigation the client or right before litigation klein is now saying i really wasn't the driver how can one say that that report was knowingly falsely me but i want to answer that i want to quickly  him ploy or prospective employer that maitland's had nothing to do with the accident is just plain lying i thought the problem they reported x and as i understand it from the record was that the trailer door opened and i don't know if there's any connection between that that's not what my client testified to that when this deposition he said that the guy had a forklift where he had put all these pallets when he moved the forklift the trailer shifted and then made blame that on my guy when they gave him a defective trailer that's an absolute lie and then this the third one is another lie that there's a videotape the doesn't show anything but then they send out a letter that says the videotape shows him slamming into the another lie i mean why did why doesn't this me and get a trial this is what is frustrating why doesn't he get a trial where he can testify he can cross examine in the jury can decide  just it's it's frustrating because and then the only get back to the first one you know this is that one is not just one guy hit the bunch of people this guy over here tells my even if we were to assume that the standard applies of to apply here is negligence and not the higher standard list isn't your burden difficult because really it's a double burden first you've got to prove that information's falls but then there's church words questions i think are suggesting then you've got to prove negligence in the actual transfer of this information can do it i want to have a chance to do it for my corning and i this this cutting these things up a summary judgment and this case is just plain wrong i think i've got tons of evidence to show that they made false statements and they knew they were false not just negligent they knew they were