APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 71-1802)
Before Gibbons and Van Dusen, Circuit Judges, and Fisher, District Judge.*fn* Argued Nov. 29, 1977. Reargued Nov. 6, 1978 In Banc. Before Seitz, Chief Judge, Van Dusen, Aldisert, Gibbons, Rosenn, Hunter, Weis, Garth and Higginbotham, Circuit Judges.*fn**
This appeal presents several interesting questions growing out of the employment by the Philadelphia Eagles Football Club ("the Eagles") of a former professional player, Don Chuy ("Chuy"). The unexpected and unfortunate termination of Chuy's employment evoked charges by him that the Eagles had not played the game according to the rules when Chuy blew the whistle terminating his football career. Chuy ultimately reduced those charges to an antitrust and diversity action in the United States District Court for the Eastern District of Pennsylvania.
Chuy joined the Eagles in 1969, having been traded from the Los Angeles Rams, another professional football club with which he had played for a half dozen years. On June 16, 1969, he met with the Eagles general manager, Palmer "Pete" Retzlaff, in Philadelphia, Pennsylvania, to negotiate a contract with the Eagles for the 1969, 1970, and 1971 football seasons. The parties concluded their negotiations by executing three National Football League (NFL) standard form player contracts on June 16, 1969, covering the 1969, 1970, and 1971 football seasons respectively at a salary of $30,000 for each season, with a $15,000 advance for the 1969 season.
The contracts each contained a standard NFL injury-benefit provision entitling a player injured in the performance of his service to his salary "for the term of his contract." Chuy sustained a serious injury to his shoulder during his first season in a game between the Eagles and the New York Giants in November, 1969. Sidelined for the remainder of the season, Chuy had to be hospitalized for most of December, 1969. During the hospitalization, his diagnosis revealed a pulmonary embolism, a blood clot in his lung, which marked the end of his professional athletic career. Following the advice of his physician, Chuy decided to retire from professional football and notified the Eagles of his intention. At the same time, Chuy requested that the Eagles pay him for the remaining two years of what he asserted was a three-year contract.
The Eagles requested that Chuy submit to a physical examination which Dr. Dick D. Harrell conducted in March, 1970. After extensive tests, Dr. Harrell concluded that Chuy suffered from an abnormal cell condition, presumably stress polycythemia, which may have predisposed him to the formation of dangerous blood clots. He therefore recommended to the Eagles that Chuy should "not be allowed to participate further in contact sports." Shortly after receiving Dr. Harrell's recommendation, General Manager Retzlaff informed Hugh Brown, a sports columnist for the Philadelphia Bulletin, that Chuy had been advised to quit football because of his blood clot condition. Brown thereupon telephoned Dr. James Nixon, the Eagles' team physician, for further information on Chuy's medical status.
On April 9, 1970, Hugh Brown's by-lined column in the Philadelphia Bulletin carried an account of Chuy's premature retirement. The column opened with the following:
It's a jaw-breaker . . . Polycythemia Vera . . . and the question before the house is how Don Chuy, the Eagles' squatty guard, got hit with the jaw-breaker.
"One of the consequences of Polycythemia Vera," said Dr. James Nixon, the Eagles' physician, "is that the blood cells get in each other's way. It's a definite threat to form embolisms, or emboli."
The remainder of the column quoted Retzlaff, Dr. Nixon, and Chuy's attorney concerning Chuy's medical condition and his effort to obtain compensation for the additional two years of his putative three-year contract. The Associated Press wire service picked up the story and articles appeared the next day in newspapers throughout the country, including the Los Angeles Times. The articles reported that Chuy had been "advised to give up football and professional wrestling because of a blood condition" and that, according to Dr. James Nixon, the Eagles' physician, "Chuy is suffering from polycythemia vera. Nixon said it is considered a threat to form blood clots."
After reading the Los Angeles Times article, Chuy testified that he panicked and immediately called his personal physician, Dr. John W. Perry. Dr. Perry informed Chuy that polycythemia vera was a fatal disease but that, from his records, Chuy did not have that disease. Dr. Perry added that he would run a series of tests to confirm his diagnosis. Chuy testified that he became apprehensive, despite Dr. Perry's assurances, broke down emotionally, and, frightened by the prospect of imminent death, refused to submit to any tests. Chuy stated that for the next several months, he could not cope with daily routines and he avoided people. He returned to Dr. Perry, who gave him numerous tests which disproved the presence of polycythemia vera. Nonetheless, Chuy testified that he continued to be apprehensive about death and that marital difficulties also developed.
Chuy eventually brought suit against the Eagles and the National Football League, alleging antitrust violations, breach of contract, intentional infliction of emotional distress and defamation. The district court dismissed the antitrust claim, 407 F. Supp. 717 (E.D.Pa.1976), and the dismissal has not been appealed. The court submitted the remaining claims to the jury by special interrogatories, and the jury returned a verdict for the plaintiff. On the basis of the jury's findings, the district court molded a damages award for breach of contract in the amount of $45,000, which reflected $60,000 salary due for the 1970 and 1971 seasons, less a $15,000 debt Chuy owed the Eagles. The jury also awarded Chuy $10,000 compensatory damages for the intentional infliction of emotional distress claim and punitive damages in the sum of $60,590.96. On the defamation claim, the jury found in its answer to the special interrogatories that Dr. Nixon's statements tended to injure Chuy's reputation, but that the columnist, Hugh Brown, did not understand that the publication of the doctor's statements would harm Chuy's reputation. The district court thereupon entered judgment against Chuy on his defamation claim.
After the entry of judgment against the Eagles in the aggregate sum of $115,590.96, both parties filed post-trial motions seeking either judgment notwithstanding the verdict (judgment n. o. v.) or a new trial. The Eagles addressed their motions to the contract and intentional infliction of emotional distress claims. Chuy's motion sought a new trial on the defamation claim. The district court denied all post-trial motions and both parties have appealed. We affirm.*fn1
The Eagles contend, as they did in the district court, that the three contracts Chuy signed with them on the same day were on their face three Separate, consecutive, one-year contracts. They assert that the contracts for the 1970 and 1971 seasons required that Chuy comply with paragraph 6, which provides for a complete physical examination of the player at the start of each training session during the term and the right of the "Club" to terminate the contract if the "Player" fails to establish his excellent physical condition to the satisfaction of the Club physician. The Eagles' position is that in the absence of a "no-cut" or "no-release" provision for the 1970 and 1971 seasons, Chuy was entitled only to the balance of his salary under the 1969 season contract. They argue that the district court should have given effect to this unambiguous construction of the contract without resort to parol evidence of the parties' intent and understanding.*fn2
Judge Becker, however, concluded that the three written contract forms signed by Chuy and the Eagles were reasonably susceptible to ambiguity in the meaning of the phrase "term of this contract" as used in paragraph 14 thereof and that when the contracts were read together, paragraph 14 was "highly ambiguous." He decided that the jury should resolve the ambiguity on the basis of pertinent parol evidence. The jury found that under the established practice in the NFL, a club is not relieved of liability for salary in subsequent seasons covered by a "multiple" contract by which a player signs documents on the same day generally relating to successive football seasons, if the player sustains an injury in one season and is unable to perform by reason of that injury in subsequent seasons.*fn3
We must first determine whether the district court erred as a matter of law in submitting to the jury the task of ascertaining the obligations of the parties under the three documents they executed on June 16, 1969. The cardinal rule of contract construction is that the intent of the parties at the time they contracted is controlling. Kennedy v. Erkman, 389 Pa. 651, 655, 133 A.2d 550, 552 (1957). Under Pennsylvania law,*fn4 the intent of the contracting parties is exclusively determined from the written instrument if its words are "clear and unambiguous." Id.; See East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865 (1965); United Refining Co. v. Jenkins 410 Pa. 126, 189 A.2d 574 (1963). However, when the language of the written contract is ambiguous, extrinsic or parol evidence is admissible to resolve the ambiguity. In re Herr's Estate, 400 Pa. 90, 94, 161 A.2d 32, 34 (1960); Kennedy v. Erkman, supra ; Castellucci v. Columbia Gas, Inc., 226 Pa.Super. 288, 292, 310 A.2d 331, 333 (1973). Although the interpretation of a written contract that is clear and unambiguous is for the court, Pines Plaza Bowling, Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672, 676 (1958), once the court determines that parol evidence is pertinent to the construction of an ambiguous contract; it is for the jury to resolve the ambiguities and find the parties' intent. Easton v. Washington County Insurance Co., 391 Pa. 28, 35-36, 137 A.2d 332, 336 (1957); Castellucci v. Columbia Gas, Inc., supra 226 Pa.Super. at 294, 310 A.2d at 334.
The term of coverage and compensation per season are determinative of Chuy's entitlement under paragraph 14 of the contract, which provides that in the event of injury:
Chuy claims compensation under paragraph 14 for the 1970 and 1971 seasons. The Eagles, having construed each contract as a single-year agreement, respond that only the 1969 season's contract was in effect at the time of Chuy's injury and that their obligation to him is limited to that contract solely.*fn5
The standard player contract adopted by the professional football leagues sets forth the respective obligations of the player, club and league. The only provisions requiring individualized negotiation and agreement are the term of the contract and the amount of compensation.*fn6 Blanks appear on the form for the parties to complete the termination date of the contract and the amount of compensation payable for each football season during the term of the contract. On one form signed by Chuy, the termination date indicated in paragraph 1 was the first of May following the close of the 1969 football season; on the others, the years 1970 and 1971 were respectively inserted. On each form the amount of $30,000 was entered in the blank space in paragraph 3.
Because the date of execution for each contract was June 16, 1969, the plain meaning of paragraph 1 of the contracts, as executed, was to create respectively a one-year contract for the 1969 season, a two-year contract for the 1969 and 1970 seasons, and a three-year contract for the 1969-1971 seasons. Such overlapping terms of coverage rendered paragraph 14 in the executed documents ambiguous. Thus, we cannot say that the district court erred in admitting parol evidence to clarify the intent of the parties as to the term of their contract and the applicability of paragraph 14's provision to Chuy's claim for compensation. Moreover, under well-settled Pennsylvania law, the trial court properly submitted to the jury the question of the parties' intent.
The Eagles rely heavily on Sample v. Gotham Football Club, Inc., 59 F.R.D. 160 (S.D.N.Y.1973), where the district court had before it for construction standard form player contracts which were identical to those here and which raised a similar issue. The court had to determine whether a player injured in 1969 was entitled to recover his salary for the 1970 season under the injury-benefits clause in view of his simultaneous execution of three separate contracts covering the 1968, 1969, and 1970 football seasons. It held that the intent of the parties clearly revealed that each season's contract was discrete and distinct and rejected the player's contention that he had entered into one three-year contract, notwithstanding the execution of three separate contracts. It therefore denied as a matter of law the plaintiff's claim for salary for the remaining season following his injury. In Sample, however, as confirmed by letter of the Eagles' counsel to this court, the printed terms of paragraph 1 had been altered in the form contract. The parties had stricken the words "the date of execution hereof" and had entered in handwriting for the 1969 season the date "May 2, 1969" and in the contract for the 1970 season the date "May 2, 1970." These interpolations, although brief, were sufficient to relieve the contracts from ambiguity as to their term. Had the contracts before us borne similar emendations, we also might have deemed them unambiguous.
The jury heard testimony from the principals concerning the negotiations on the eventful day the documents were signed. Chuy recounted that he had requested a three-year, "no-cut, no-trade" contract for an aggregate sum of $100,000.00 and an advance of $15,000.00. He testified that Retzlaff countered with a three-year contract which he described as an attractive "$90,000 package," including the $15,000 advance, but rejected the no-cut, no-trade proposal. On the other hand, Retzlaff denied that Chuy had ever requested a three-year package or a $100,000 package. He testified that he pointed out to Chuy that the latter came to the Eagles still under an existing contract at $25,000 signed with the Los Angeles Rams, but to encourage Chuy in coming to Philadelphia he agreed to renegotiate and offered him $30,000 for 1969 and for each year after that. The jury, in response to the special interrogatories, found that both Chuy and Retzlaff "manifested by words an intent" to have the Eagles liable for salary to Chuy for 1970 and 1971 in the event he sustained a football-related injury in 1969 which rendered him incapable of playing in 1970 and 1971.*fn7
On an appeal from a denial of a motion for judgment notwithstanding the verdict, this court must view all the evidence and inferences reasonably drawn therefrom in the light most favorable to the party with the verdict. Kademenos v. Equitable Life Assurance Society, 513 F.2d 1073, 1074 (3d Cir. 1975). Our limited function at this point is to ascertain from a review of the record whether there is sufficient evidence to sustain the verdict of the jury on this issue. After reviewing the pertinent trial testimony, we conclude there is sufficient evidence from which the jury could have found that the parties intended to compensate Chuy for three years for any football-related disability crippling his career. We therefore find no error in the district court's denial of Eagles' motion for judgment n. o. v. on Chuy's contract claim.
III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiff's recovery of damages for emotional distress, stemming from having read Dr. Nixon's statement that Chuy was suffering from polycythemia vera, was predicated upon the principle enunciated in section 46 of the Restatement (Second) of Torts (1965). That section provides:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Thus, there are four elements to the action under § 46: (1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe. Although the Pennsylvania Supreme Court has not as yet specifically adopted in its entirety the Restatement's formulation and comments, Pennsylvania courts have signalled their acceptance of this evolving tort. Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970);*fn8 Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963); Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976). In light of the extant case law, we believe that the black letter rule of § 46 of the Restatement, along with the interpretive comments, may be applied as the basis in Pennsylvania law for the tort of intentional infliction of emotional distress.
The Eagles argue that the district court should not have submitted to the jury the question whether Dr. Nixon's statements constituted "extreme and outrageous conduct"; that the court gave improper instructions concerning the intent necessary for the tort and that there was insufficient evidence for the jury to find the requisite intent; that Chuy's allegedly exaggerated and unreasonable reaction to Dr. Nixon's remarks precludes the Eagles' liability; and that the Eagles cannot be vicariously liable even if Dr. Nixon intentionally or recklessly caused Chuy severe emotional distress.
The Eagles contend first that the trial judge erred in submitting to the jury the issue whether Dr. Nixon's statements constituted "extreme and outrageous conduct." They assert that an actor's conduct must be examined as a matter of law by the court In limine. Comment h to § 46, upon which the Eagles rely, divides the functions of the court and jury in a conventional manner.*fn9 The court must determine, as a matter of law, whether there is sufficient evidence for reasonable persons to find extreme or outrageous conduct. If the plaintiff has satisfied this threshold evidentiary requirement, the jury must find the facts and make its own characterization. The district court followed precisely the Restatement's procedure.
In applying the legal standard for sufficiency of the evidence to support a finding of extreme and outrageous conduct, the district court correctly ruled that if Dr. Nixon advised sportswriter Brown that Chuy suffered from polycythemia vera, knowing that Chuy did not have the disease,*fn10 such conduct could reasonably be regarded as extreme and outrageous. According to comment d of the Restatement, it has not been sufficient for a finding of liability that "the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice.' "
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Restatement (Second) of Torts, § 46, comment d.
Accepting as we must at this stage Chuy's version of the events, we have a statement to the press by a physician assumed to know the facts that a person is suffering from a potentially fatal disease, even though the physician was aware that the person was not stricken with that condition. This, of course, constituted intolerable professional conduct. Disseminating the falsehood through the national press compounded the harm. Surely Dr. Nixon's statements, as understood ...