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J-A30015-16

2017 PA Super 159

G. MICHELLE KROLCZYK IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

GODDARD SYSTEMS, INC.; NICOLE 

WISHARD, T/A THE GODDARD SCHOOL 

OF HARRISBURG; GODDARD SCHOOL; 

FLH, INC.

No. 533 MDA 2016

Appeal from the Order Entered March 3, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): 2008 CV 11907

LYDIA DICOLA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

GODDARD SYSTEMS, INC., NICOLE 

WISHARD, T/A GODDARD SCHOOL OF 

HARRISBURG, THE GODDARD SCHOOL, 

A FICTITIOUS NAME, AND FLH, INC.

No. 534 MDA 2016

Appeal from the Order Entered March 3, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): 2008 CV 12139-CV

BEFORE: BOWES, OLSON AND STABILE, JJ.

OPINION BY BOWES, J.: FILED MAY 23, 2017
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G. Michelle Krolczyk and Lydia DiCola (“Plaintiffs”), who instituted 

these wrongful discharge/defamation lawsuits, appeal from the March 3, 

2016 order entering summary judgment in favor of Goddard Systems, Inc., 

Nicole Wishard, t/a the Goddard School of Harrisburg, the Goddard School, a 

fictitious name (collectively “Goddard”), and FLH, Inc., which is the 

franchisor of Goddard (collectively “Defendants”). We reverse the decision 

dismissing their wrongful discharge cause of action, but affirm the grant of 

summary judgment as to the defamation claim. 

Ms. Wishard owned and operated Goddard, a private school, and was 

the president of FLH, Inc. Ms. Krolczyk is a state certified pre-school 

educator through the academic board of private schools in Pennsylvania. 

Ms. DiCola is a Florida and Texas certified early childhood education teacher. 

We have consolidated the cases for purposes of appellate review as they 

were instituted based upon the same series of events, which occurred when 

Plaintiffs were co-instructors in a classroom at Goddard. 

In late 2007 and early 2008, Plaintiffs were working as pre-school 

teachers for Goddard co-instructing children aged three and four in a 

classroom known as the Junior Genius classroom. Ms. Wishard dismissed 

both women on February 14, 2008, and, the following day, a letter was 

disseminated to their students’ parents regarding their termination. In their 

lawsuits, Plaintiffs alleged that they were wrongfully discharged after 

informing Ms. Wishard that they were going to report, as required by 
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Pennsylvania law, that they suspected that one of their students, A.G., was 

being abused or neglected. They averred that the letter given to the parents 

was defamatory. Their cases were dismissed based upon the grant of 

summary judgment. 

The record indicates the following. A.G., a student in the Junior Genius 

classroom, was four years old when the pertinent events transpired. A.G.’s 

mother was Jennifer G., who was the Director of Education for Goddard and 

who supervised Plaintiffs. A.G. was developmentally delayed and extremely 

aggressive. Plaintiffs delineated that, during the waning months of 2007, 

A.G. engaged in the following behavior in their classroom: 1) called the 

teachers and other students profane names; 2) repeatedly threatened to 

shoot and kill or to stab the teachers and other students; 3) on numerous 

occasions, physically assaulted and threw objects at teachers as well as 

other students; 4) bit Plaintiffs and their co-workers with sufficient force to 

break the skin and leave welts and bruises; 5) otherwise terrorized students 

to such an extent that those students no longer wanted to attend Goddard; 

6) continually defecated on himself and resisted efforts to clean up the 

feces; and 7) physically and verbally prevented the teachers from instructing 

any of their students. Based upon A.G.’s conduct, Plaintiffs suspected that 

he was being either neglected or abused. Jennifer G. admitted that her 

son’s chronic bowel incontinence and hyper-aggression supported Plaintiffs’ 

suspicion that he was being abused or neglected. Specifically, Jennifer G. 
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conceded that “late stage potty training and inappropriate aggression” were 

“indicators” of a “possibility of abuse” and that her son A.G. had both of 

these “red flags.” Deposition of Jennifer G., 4/13/11, at 78.

Prior to December 2007, Plaintiffs sought help with A.G. from Ms. 

Wishard, suggesting that intervention from a state agency might be 

appropriate. Ms. Wishard failed to undertake any affirmative action, and 

instead, directed Plaintiffs neither to contact any child welfare agency nor to 

report that they suspected that A.G. was being abused or neglected. Since 

the above-delineated inappropriate behavior neither abated nor was 

addressed, in December 2007, Plaintiffs began to keep a daily journal to 

document A.G.’s conduct and their efforts to redirect his aggressive 

behavior. The journal indicated the following. A.G. urinated and/or 

defecated himself December 4th, December 5th, December 14th, December 

17th, and, following the holiday break, on January 7th, January 9th, January 

10th, January 11th, January 14th, January 16th, January 23rd, January 25th, 

January 29th, January 31st, February 4th, and February 6th, 2008. On many 

of these occasions, A.G. defecated in his pants more than once. 

On December 5th, A.G. threatened violence against children and adults 

and was very disruptive. On December 14th, he tormented and physically 

harassed a classmate, and on December 17th, he threw wooden blocks at a 

sleeping child. On that occasion, A.G. was restrained in the presence of 

Jennifer G., who immediately removed A.G. from the classroom. On January 
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th, A.G. kicked, scratched, and tried to bite Ms. Krolczyk several times and 

informed her that he was “going to get a machine gun and load it with 

bullets and blow her head off.” Deposition of Jennifer G., 4/13/11 at Exhibit 

D-12 (the “Journal”) at 368. He also threw his shoes at her and said that he 

was going to break her nose. The following day, A.G. again threatened to 

kill Ms. Krolczyk as well as another student, and punched and scratched Ms. 

Krolczyk on the face. A.G. also pulled Ms. DiCola’s hair and kicked her. He 

was restrained on this occasion.

On January 11th, A.G. struck a child with a toy, and was again 

restrained; Ms. Krolczyk told Jennifer G. about this incident. On January 

22nd, A.G. threw his shoes at Ms. Krolczyk and called her profane names. 

On January 23rd, A.G.’s father dragged him from the classroom as A.G. was 

crying. On January 25th, A.G. called Ms. Krolczyk profane names and told 

Ms. DiCola, who was pregnant, that he was going to take a knife and remove 

her baby and that his father was going to kill her with his gun. He also 

informed Ms. Krolczyk that he was going to kill the police so they could not 

“get his Mom.” Journal at 384. 

On January 28th, A.G. broke the toilet seat, threw water on the 

bathroom floor, and began to roll around. On February 4th, A.G. bit Ms. 

Krolczyk in her forearm, leaving a mark. On the morning of February 5th, 

A.G. began to scream and flail his arms, and, when Ms. Krolczyk carried him 

from the room, he buried his teeth in her forearm. He also bit her later that 
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afternoon. On February 6th, A.G. threatened students and teachers with 

physical violence, screamed, and would not follow directions. 

Thursday, February 7, 2008, was A.G.’s last day under Plaintiffs’ 

supervision. A.G. began the day by continually defecating in his pants. 

Since his hostile behavior began to escalate, another employee at Goddard, 

Ms. Angie, whose last name is not revealed in the record, offered to help to 

control him. During naptime, A.G. repeatedly refused to lie down and be 

quiet. He was playing with a toy, and each time A.G. engaged in disruptive 

behavior, Ms. Krolczyk told him that she would take it away from him. As 

A.G. persisted in his actions, the toy was removed. A.G. immediately began 

to act out inappropriately. Ms. Angie held down his feet, and Ms. Krolczyk 

restrained him by hugging him. Journal at 408. Becoming more agitated,

A.G. attempted to bite Ms. Krolczyk, and, when Ms. DiCola intervened, he bit 

her forearm and refused to release his teeth from her flesh, which began to 

bleed. 

The journal continued that Ms. DiCola “attempted to activate the reflex 

of tilting your head back by gently pressing on the nerve cluster underneath 

his nose, against his lip to force him to release his bite.” Journal at 409. 

A.G. was not affected by this action, and Ms. Angie and Ms. Krolczyk “helped 

break his grip” on Ms. DiCola’s arm. Id. All three women, Ms. Angie, Ms. 

Krolczyk, and Ms. DiCola, held A.G. in order to calm him down. The journal 

delineated that, during this episode, A.G. was “completely out of control,” 
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and appeared to be in a “full-blown, adrenaline-fueled rage” and “out of his 

mind and body.” Id. Eventually, the three women quieted A.G. and laid 

him down on his mat next to the sleeping children. Five minutes later, 

Jennifer G. came into the classroom and was told about the incident. She 

listened and nodded and then left with A.G., who did not return to school the 

following day. 

On Monday, February 11, 2008, Plaintiffs gave Ms. Wishard their 

journal. Deposition of Lydia DiCola, 5/8/13, at 63. Since A.G.’s behavior 

gave rise to a suspicion by Plaintiffs that he was being abused or neglected, 

on February 13, 2008, Ms. Krolczyk called the hotline of the Pennsylvania 

Department of Education and asked how she and Ms. DiCola should proceed 

to report their suspicion of abuse or neglect. Plaintiffs were instructed to 

meet with Ms. Wishard and inform her about their shared suspicion of abuse 

or neglect. They were also told that they should report their suspicion of 

abuse or neglect by filing a formal report of suspected child abuse with the 

local department of the Pennsylvania Department of Public Welfare. 

On February 14, 2008, Plaintiffs met with Ms. Wishard and informed 

her that A.G.’s behavior was indicative that he was being abused or 

neglected at home. They also notified Ms. Wishard that they had contacted 

the Department of Education, and they conveyed to Ms. Wishard that they 

intended to formally report to the Department of Public Welfare that they 
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suspected there was abuse or neglect in A.G.’s home. Plaintiffs were 

mandated reporters of suspected abuse under Pennsylvania law. 

Within hours of the February 14, 2008 meeting, Ms. Wishard called 

Plaintiffs at home and said that they were fired. Ms. Krolczyk testified that 

Ms. Wishard informed her that she was being discharged, “Based on the 

conversation we had this afternoon and your decision [i.e., to report 

suspected abuse or neglect of A.G.], that your services are just no longer 

needed here, we’ll call today your last day and go our separate ways.” 

Deposition of G. Michelle Krolczyk, 5/8/13, at 150. Ms. Wishard thereafter 

sent a letter to the parents delineating that Plaintiffs were terminated “for 

various reasons” but Ms. Wishard assured them “that protecting both the 

children’s interest as well as the parents’ interest as well as the good of this 

school are the deciding factors for my decision.” Deposition of Jennifer G., 

4/13/11, at Exhibit I. 

During her deposition, Ms. Wishard claimed that Plaintiffs were 

dismissed for having “inappropriate contact with a student” by restraining 

A.G. Deposition of Nicole Wishard, 6/2/10, at 40, 51. She relied specifically 

on the February 7, 2008 incident, as described in the journal, when A.G. was 

hugged by Ms. Krolczyk, Ms. DiCola had applied pressure to A.G.’s upper lip, 

Ms. Krolczyk and Ms. Angie had removed his teeth from Ms. DiCola’s 

bleeding arm, and all three women held him in order to calm him down. 
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Ms. Wishard admitted that the journal indicated that Plaintiffs 

restrained A.G. “in order to prevent him from hurting himself, a teacher, or 

another child” and that there was no indication that Plaintiffs physically 

abused A.G. in any manner by hitting, beating, or kicking him. Id. Ms. 

Wishard also acknowledged that the journal indicated that Ms. Angie was 

involved in restraining A.G., but that she was not discharged, ostensibly 

because Ms. Wishard interviewed Ms. Angie and Ms. Angie denied restraining 

A.G. While Ms. Wishard asserted that she would fire any teacher who 

restrained a student, cross-examination indicated that there were other 

instances of restraint where teachers were not fired. When deposed, 

Jennifer G. acknowledged that another teacher, J.S., had not been 

terminated even though she pinched a child’s forearm. Deposition of 

Jennifer G., 4/13/11, at 23-24. Indeed, Jennifer G. herself restrained a child 

and was not dismissed. Id. at 52. 

After discovery was conducted, Defendants filed a motion for summary 

judgment. They asserted that Plaintiffs’ wrongful discharge claims were not 

viable because Plaintiffs were fired for a valid, legitimate, and non-prohibited 

reason, as outlined in Ms. Wishard’s deposition, i.e., they restrained A.G. in 

violation of school policy. Defendants also averred that the letter was not 

defamatory. The trial court granted summary judgment on the wrongful 

discharge claims by finding that, in accordance with the testimonial 

deposition of Ms. Wishard, Defendants had offered a “separate, plausible and 
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legitimate reason” for the terminations. Trial Court Opinion, 3/3/16, at 

(unnumbered page) 5. It rejected the position that the reason was pretextual.1

 In concluding that Defendants “proffered a legitimate 

nondiscriminatory reason for terminating Plaintiff[s’] employment, the court 

ruled that Plaintiffs were dismissed solely because they “had been physically 

restraining a four-year-old boy for several months[.]” Id. at (unnumbered 

page) 6. In dismissing the defamation count, the trial court noted that 

Plaintiffs had not incurred special harm and apparently decided that the 

letter sent to parents was not defamatory per se. Id. at (unnumbered page) 

9 (“A fair reading of this letter shows that it is not fairly calculated to harass 

Plaintiff[s’] reputation.”). 

In this appeal from the grant of summary judgment, Plaintiffs raise 

these averments: 

A. Did the lower court err in dismissing Appellant[s’] claim[s] for 

wrongful termination when there were material issues of fact 

vital to the adjudication of said claims, including, but not 

limited to, a temporal proximity between the protected 

activity (i.e., reporting suspected abuse) and the adverse job 

action (i.e., termination) which could be measured in minutes 

and/or hours, as well as material issues of fact which could 

establish that the asserted “legitimate” basis for termination 

was, in fact, a post-hoc pretext?

____________________________________________

1

 For inexplicable reasons, in deciding that Defendants offered a legitimate, 

non-pretextual reason for firing Plaintiffs, the trial court relied upon federal 

law disseminated in the area of age, race, or sex discrimination rather than 

the rules applicable to grant of summary judgment in Pennsylvania. 
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B. Did the lower court err, as a matter of law, when it violated 

the Nanty-Glo rule in entering judgment against Appellant[s] 

on the basis of the Appellee[s’] own deposition testimony 

concerning the facts and circumstances giving rise to 

Appellee[s’] decision to terminate Appellant[s’] employment?

C. Did the lower court erred [sic] in entering judgment against 

Appellant[s’] “defamation” claim[s] when the facts of the case 

establish that Appellees published a false and misleading 

letter which adversely affected Appellant[s’] ability to obtain 

employment in [their] chosen f[ield]?

Appellants’ briefs at 2. 

We first set forth the principles applicable to grant of summary 

judgment in Pennsylvania. As we observed in Nationwide Mut. Fire Ins. 

Co. v. Modern Gas, 143 A.3d 412, 415 (Pa.Super. 2016) (quoting Atcovitz 

v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002)), our 

Supreme Court has often admonished that “summary judgment is 

appropriate only in those cases where the record clearly demonstrates that 

there is no genuine issue of material fact and that the moving party is 

entitled to judgment as a matter of law.” See Pa.R.C.P. 1035.2(1). 

Moreover, when any court considers a motion for summary judgment, it is 

required to accept all the facts of record as well as the reasonable inferences 

from those facts in favor of the non-moving party. Nationwide, supra. 

Additionally, the trial court “must resolve all doubts as to the existence of a 

genuine issue of material fact against the moving party, and, thus, may only 
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grant summary judgment where the right to such judgment is clear and free

from all doubt.” Id. at 415 (citation and quotation marks omitted). 

As the appellate court, we are permitted to “reverse a grant of 

summary judgment if there has been an error of law or an abuse of 

discretion.” Id. Since the question of “whether there are no genuine issues 

as to any material fact presents a question of law,” we engage in a standard 

of review that is de novo, and are not required to “defer to the 

determinations made by the lower tribunals.” Id. “If there is evidence that 

would allow a fact-finder to render a verdict in favor of the non-moving 

party, then summary judgment should be denied.” Id. 

We will address together Plaintiffs’ first two claims, which pertain to 

the grant of summary judgment as to the wrongful discharge causes of 

action. It is evident herein that, in resolving the motion for summary 

judgment as to wrongful discharge, the trial court did not view the facts in 

the light most favorable to Plaintiffs, and, instead, accepted the version of 

the facts proffered by Defendants. As more fully delineated infra, the trial 

court also violated the well-established Nanty-Glo rule. 

We first examine whether Plaintiffs have a viable wrongful discharge 

cause of action. In Pennsylvania, absent an express agreement, there is a 

presumption that any employment relationship is at-will, and thus can be 

“terminated by either party at any time, for any reason or for no reason.” 

Wakeley v. M.J. Brunner, Inc., 147 A.3d 1, 5 (Pa.Super. 2016) (citation 
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omitted). In the seminal decision in Geary v. United States Steel Corp.,

319 A.2d 174 (Pa. 1974), our Supreme Court articulated that there is a 

common law wrongful discharge cause of action in Pennsylvania for an atwill employee if the employee’s firing violated public policy. However, the 

Court concluded that no public policy was implicated in Geary’s termination. 

Subsequently, in Shick v. Shirey, 716 A.2d 1231 (Pa. 1998), the 

Supreme Court first announced a public policy exception to the at-will 

employment doctrine. Therein, the Court held that, in Pennsylvania, an atwill employee asserts a viable common law cause of action for wrongful 

discharge when the employee maintains that he was fired because he 

exercised his statutory right to file a workers’ compensation claim. Our High 

Court ruled that the lawsuit could be brought since terminating an employee 

for exercising his or her legal right to workers’ compensation violated 

Pennsylvania public policy. See also Rothrock v. Rothrock Motor Sales, 

Inc., 883 A.2d 511 (2005) (holding that it violates public policy for a father 

to be dismissed for failing to prevent his son from obtaining workers’ 

compensation benefits); Highhouse v. Avery Transportation, 660 A.2d 

1374 (Pa.Super. 1995) (concluding that an employee was wrongfully 

discharged after filing an unemployment compensation claim); Reuther v. 

Fowler & Williams, Inc., 386 A.2d 119 (Pa.Super. 1978) (ruling that a 

cause of action for wrongful discharge was present where employee claimed 

that he was fired for performing jury duty).
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The decision announced in Field v. Philadelphia Elec. Co., 565 A.2d 

1170 (Pa.Super. 1989), is dispositive. Therein, plaintiffs, who were at-will 

employees, filed an action against their employer raising, inter alia, a 

wrongful discharge cause of action. We concluded that the cause of action 

survived a demurrer since plaintiffs had set forth that their dismissals were a 

violation of a recognized public policy. In Field, the employees maintained 

that they were fired because one of them reported a violation of federal law 

to the federal agency charged with oversight of the matter. They 

additionally averred that the reporter was statutorily-required to report the 

employer’s violation of the applicable federal law. 

Since the employees alleged that they were all terminated because 

one of them “performed a duty he was required to perform under federal 

law,” the Field Court ruled that they had stated a claim for wrongful 

discharge. Id. at 1180. We observed that the federal law in question was 

“designed to protect the health and safety of the public” and that the 

employee’s action of reporting the employer’s violation of the federal 

mandates “directly advanced the public concerns addressed” by the statute 

in question. Id. 

In this case, Plaintiffs were mandated reporters of suspected child 

abuse under 23 Pa.C.S. § 6311(a). Section 6311, which is entitled 

“mandated reporters,” provides: “The following adults shall make a report of 

suspected child abuse, subject to subsection (b), if the person has 
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reasonable cause to suspect that a child is a victim of child abuse: . . . [a] 

school employee [or a]n employee of a child-care service who has direct 

contact with children in the course of employment.” 23 Pa.C.S. § 6311 

(a)(4), (5). Subsection (b), basis to report, also applies herein:

(1) A mandated reporter enumerated in subsection (a) shall 

make a report of suspected child abuse in accordance with 

section 6313 (relating to reporting procedure), if the mandated 

reporter has reasonable cause to suspect that a child is a victim 

of child abuse under any of the following circumstances:

(i) The mandated reporter comes into contact with 

the child in the course of employment, occupation 

and practice of a profession or through a regularly 

scheduled program, activity or service.

(ii) The mandated reporter is directly responsible for 

the care, supervision, guidance or training of the 

child, or is affiliated with an agency, institution, 

organization, school, regularly established church or 

religious organization or other entity that is directly 

responsible for the care, supervision, guidance or 

training of the child.

23 Pa.C.S. § 6311. 

Plaintiffs pled and presented sufficient proof that A.G.’s behavioral 

issues caused them to suspect that he was a victim of abuse or neglect. 

They articulated that they believed that A.G.’s problems with soiling himself 

and physically hostile behavior indicated that he may have been neglected or 

abused. Plaintiffs also testified that they contacted the Department of 

Education, which confirmed that these behaviors were indicators of 

suspected child abuse or neglect. Finally, Jennifer G. admitted that her son’s 
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hyper-aggressive behavior and bowel movements in his clothing were red 

flags for possible child abuse or neglect. 

Thus, Plaintiffs adduced sufficient proof to establish that they were 

required, under Pennsylvania law, to report their suspicion that A.G. was 

being neglected or abused. They also presented testimonial and 

circumstantial evidence to support their position that they were discharged 

solely because they planned to report, as required by the statute, that they 

suspected that there was abuse or neglect in A.G.’s home. The most crucial 

aspect of Plaintiffs’ proof about the reason for the terminations came from 

Ms. Krolczyk’s testimony, which we are required to credit under the 

standards applicable to summary judgment. Ms. Krolczyk’s deposition 

indicated that Ms. Wishard informed Ms. Krolczyk that she was being 

dismissed, “Based on the conversation we had this afternoon and your 

decision [i.e., to report suspected abuse or neglect of A.G.], that your 

services are just no longer needed here, we’ll call today your last day and go 

our separate ways.” Deposition of G. Michelle Krolczyk, 5/8/13, at 150. 

This proof, standing alone, prevents the grant of summary judgment in favor 

of Defendants. 

However, there was additional, circumstantial evidence that Plaintiffs 

were not fired for the reason proffered by Ms. Wishard, but due to their 

articulated intent to report suspected abuse or neglect. Even though 

Plaintiffs were purportedly terminated for engaging in restraint, Ms. Wishard 
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and Jennifer G. admitted that other teachers were not discharged after they 

had restrained children, including a teacher who pinched a child. 

Significantly, Ms. Angie was not fired despite the fact that the journal 

indicated that she actively participated in restraining A.G. on February 7, 

2008.2 

Plaintiffs’ evidence also included the following. Jennifer G. was present 

on December 17, 2007, and observed Plaintiffs restraining A.G. They were 

not fired then. Jennifer G. was told about an incident occurring on January 

11, 2008, when A.G. was restrained. Plaintiffs were not terminated at that 

time. Plaintiffs specifically told Jennifer G. about the events of February 7, 

2008, immediately after they occurred. Plaintiffs were not discharged on 

February 7, 2008. Likewise, Plaintiffs were not terminated on February 11, 

2008, when they gave Ms. Wishard the journal, which documented instances 

of restraint. Instead, Plaintiffs were fired on February 14, 2008, 

immediately after they told Ms. Wishard that they were going to file a report 

that they suspected A.G. was being abused or neglected. 

Thus, Plaintiffs’ proof was sufficient to establish that the reason for 

their discharge was their articulation that they, as mandated reporters, were 

____________________________________________

2 We note that, for purposes of a summary judgment determination, we are 

not permitted to credit Ms. Wishard’s representation that she did not fire Ms. 

Angie because she interviewed Ms. Angie and Ms. Angie denied holding down 

A.G. 
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going to file a report with the Department of Public Welfare that they 

suspected that A.G. was being abused or neglected. Child abuse and neglect 

are matters of great public concern, and are advanced by the requirement 

that certain persons report suspected abuse. Simply put, if a mandated 

reporter could be fired for articulating an intent to report suspected abuse, it 

would have a chilling effect on the very purpose for the statute in question. 

Plaintiffs’ decision to file a report promoted the statute’s public policy of 

protecting children. Plaintiffs have a viable cause of action for wrongful 

discharge based upon public policy, and they presented sufficient evidence 

that their discharge was based upon the implicated public policy. 

Not only did the trial court ignore the evidence supporting the position 

that Plaintiffs were terminated for telling Ms. Wishard that they were going 

to report suspected child abuse or neglect, it also credited the testimonial 

deposition of Ms. Wishard that Plaintiffs were not fired for that reason. As 

noted, Ms. Wishard claimed that Plaintiffs were dismissed for violating school 

policy against restraining children. We concur with Plaintiffs’ argument that 

the grant of summary judgment herein violated the well-ensconced NantyGlo rule. In Nanty–Glo v. American Surety Co., 163 A. 523, 524 (Pa. 

1932), the Supreme Court reversed the entry of a directed verdict, and held 

that, however “clear and indisputable may be the proof when it depends on 

oral testimony, it is nevertheless the province of the jury to decide, under 

instructions from the court, as to the law applicable to the facts.”
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Nanty–Glo is applicable in the summary judgment context, and 

summary judgment may not be premised upon the acceptance of the 

testimonial proof offered by the moving party. As our Supreme Court 

articulated in Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 154 (Pa. 

2009) (quoting Goodrich–Amram 2d § 1035.1, p. 423.), summary judgment 

serves to avoid “a useless trial but is not, and cannot, be used to provide for 

trial by affidavits or trial by depositions.” The admonition that “trial by 

testimonial affidavit is prohibited ‘cannot be emphasized too strongly.’” 

Stimmler, supra at 154 (partially quoting Curran v. Philadelphia 

Newspapers, Inc., 439 A.2d 652, 662 (Pa. 1981)). 

Herein, the trial court claimed that that it was not violating the NantyGlo rule because the journals, documentary proof, established that Plaintiffs 

restrained A.G. The trial court’s reasoning is misguided. The journal does 

not set forth why Plaintiffs were fired; it merely proved the fact of restraint. 

It was Ms. Wishard’s deposition testimony that established the purported 

reason that she dismissed Plaintiffs. In short, in granting summary 

judgment, the court not only ignored the above-delineated proof presented 

by Plaintiffs, it also credited Ms. Wishard’s testimonial assertion that 

Plaintiffs were terminated due to the fact that they engaged in restraining 

A.G. The trial court was simply not permitted to accept Ms. Wishard’s 

position on the reason for Plaintiffs’ termination due to both the proof 

presented by Plaintiffs and the application of the Nanty-Glo rule. 
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Defendants do not contest that Plaintiffs stated viable causes of action 

for wrongful discharge if they were fired for stating that they were going to 

report that they suspected the presence of abuse or neglect in A.G.’s 

household. Their position is that Plaintiffs were dismissed not as a result of 

this lawful activity but due to “separate, plausible, and legitimate reasons.” 

Appellees’ briefs at 16. They continue that Plaintiffs’ terminations “had 

nothing at all to do with [their] stated intention of reporting [their] 

suspicions of child abuse,” and instead, that they were terminated based on 

their restraint of a child in violation of school policy. Id. Defendants posit 

that their separate, plausible, and legitimate reason for firing Plaintiffs 

defeats Plaintiffs’ wrongful discharge causes of action. Id. at 19. They also 

parrot the trial court’s reasoning that Nanty-Glo was not violated herein 

since the journal established the existence of restraint. 

We have discredited these positions in our analysis, supra. To accept 

the assertion that Plaintiffs were discharged due to their restraint of A.G., 

one must credit Ms. Wishard’s testimonial evidence presented in her 

deposition. This is prohibited by the Nanty-Glo rule. More importantly, to 

conclude that Ms. Wishard dismissed Plaintiffs based upon restraint, one 

must discredit Ms. Krolczyk’s deposition, wherein she stated that Ms. 

Wishard told her that the termination was based upon the February 14, 2008 

conversation regarding her decision to report. This would also violate the 

precepts applicable in the summary-judgment context, where one must 
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accept all the evidence presented by the nonmoving party as true. We thus 

reject Defendants’ arguments. 

In conclusion, Plaintiffs adduced sufficient proof to go to the jury on 

the question of whether they were wrongfully discharged because they were 

intended, as mandated reporters, to file a report of suspected abuse or 

neglect in A.G.’s household. The jury must decide whether to credit Ms. 

Wishard’s contrary explanation for Plaintiffs’ dismissals. We therefore hold 

that summary judgment was improperly granted on Plaintiffs’ wrongful 

termination causes of action. 

We now address Plaintiffs’ position that their defamation causes of 

action should have survived summary judgment. The elements of a cause of 

action in defamation are codified in § 8343 of The Uniform Single Publication 

Act, 42 Pa.C.S. §§ 8341-8345, as follows:

(a) Burden of plaintiff.--In an action for defamation, the 

plaintiff has the burden of proving, when the issue is 

properly raised:

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory 

meaning.

(5) The understanding by the recipient of it as intended 

to be applied to the plaintiff. 
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(6) Special harm resulting to the plaintiff from its 

publication.

(7) Abuse of a conditionally privileged occasion.

42 Pa.C.S. § 8343. 

Herein, Plaintiffs have conceded that they did not suffer special harm 

from the publication. Ms. Krolczyk obtained other employment as an 

educator, and Ms. DiCola elected to cease working. Appellants’ briefs at 36-

37. However, this statute “does not overrule the long line of cases in our 

Supreme Court which hold that a slander per se is actionable without proof 

of special damage.” Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 

237, 242 (Pa.Super. 1993) (adopting Restatement of Torts as applicable law 

regarding defamation per se). Under the Restatement (Second) of Torts, 

defamation per se occurs when the statement ascribes to the plaintiff any of 

the following: commission of a criminal offense, a loathsome disease, serious 

sexual misconduct, or conduct or characteristics that adversely affect the 

plaintiff’s fitness to properly conduct his profession, trade or business. 

Restatement (Second) of Torts § 570.3 See Livingston v. Murray, 612 

____________________________________________

3

That section states: 

One who publishes matter defamatory to another in such a manner 

as to make the publication a slander is subject to liability to the 

other although no special harm results if the publication imputes to 

the other

(Footnote Continued Next Page)
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A.2d 443 (Pa.Super. 1992) (holding a statement defamatory if it blackens or 

injures a person in his business or professional reputation).

As we delineated in Kurowski v. Burroughs, 994 A.2d 611, 617 

(Pa.Super. 2010) (citations omitted), since the plaintiff has the burden of 

proving the defamatory character of the communication under the Uniform 

Single Publication Act, it “is the function of the court to determine whether 

the challenged publication is capable of a defamatory meaning. 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.” Accord Baker 

v. Lafayette College, 532 A.2d 399, 402 (Pa. 1987) (“In order for a 

(Footnote Continued) _______________________

(a) a criminal offense, as stated in § 571, or

(b) a loathsome disease, as stated in § 572, or

(c) matter incompatible with his business, trade, profession, 

or office, as stated in § 573, or

(d) serious sexual misconduct, as stated in § 574.

Restatement (Second) of Torts § 570. These lawsuits implicate § 573, which 

outlines:

One who publishes a slander that ascribes to another conduct, 

characteristics or a condition that would adversely affect his 

fitness for the proper conduct of his lawful business, trade or 

profession, or of his public or private office, whether honorary or 

for profit, is subject to liability without proof of special harm.

Restatement (Second) of Torts § 573.
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statement to be considered libelous or slanderous, the trial court must, in 

the first instance, make a determination as to whether the communication 

complained of can be construed to have the defamatory meaning ascribed to 

it by the complaining party.”). 

In the present case, the letter in question reported to the parents that 

Plaintiffs were discharged “for various reasons,” but Ms. Wishard assured 

them “that protecting both the children’s interest as well as the parents’ 

interest as well as the good of this school are the deciding factors for my 

decision.” Deposition of Jennifer G., 4/13/11, at Exhibit I. The statement 

accused Plaintiffs of no conduct that would impugn or blacken their 

professional reputation; it merely reported that they were fired for 

undisclosed reasons and that the best interests of the children, the parents, 

and the school were behind the terminations. The letter did not report that 

Plaintiffs were poor teachers or otherwise suggest that they were not 

competent professionals. We therefore concur with the trial court that the 

statements in the letter were not defamatory per se. 

Plaintiffs counter that the communication that they were terminated 

for the “good of the children” implicitly impugned their professional 

reputation. Appellants’ briefs at 25-36. Thus, they premise their right to 

recovery on an innuendo that an action taken for the best interest of the 

children castigated their teaching abilities. “The question of whether 

innuendo is actionable as defamatory is a question of law.” ToDay’s 
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Housing v. Times Shamrock Communications Inc., 21 A.3d 1209, 1215 

(Pa.Super. 2011). When this Court is confronted with a question of law, our 

standard of review is de novo and the scope of review is plenary. Bowling 

v. Office of Open Records, 75 A.3d 453 (Pa. 2013). In order to assess 

whether the statement is capable of the defamatory meaning imputed to it 

by a plaintiff, the “court must view the statements in context” to ascertain 

“the impression it would naturally engender, in the minds of the average 

persons among whom it is intended to circulate.” Kurowski, supra at 617. 

In this respect, we concur with the trial court that “for the good of the 

children” did not suggest that Plaintiffs were not capable teachers and did 

not have the implication that Plaintiffs seek to have us make. Hence, we 

affirm its decision to grant summary judgment in favor of Defendants as to 

the defamation count. 

The March 3, 2016 Order is affirmed in part and reversed in part. 

Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2017