Pennsylvania Appellate Court Forces Trial Court To Enforce A Non-Disparagement Agreement After One Party Makes Accusations About The Other On Facebook And At A Public Meeting
October 9, 2023
By: Carl L. Engel
The Pennsylvania Superior Court, in the case Weiser v. Babik, has just reversed a trial court that refused to enforce a non-disparagement provision contained in a settlement agreement. After one of the parties accused the other of “corruption” on Facebook, and of “stalking” him at a public meeting, the target of the accusations asked the trial court for an order prohibiting further disparaging comments about him. The trial court refused, finding that the term “disparaging communication” in the settlement agreement was too ambiguous to enforce, and that the complaining party hadn’t been identified by name. The Superior Court reversed, however, because the Facebook remarks and stalking accusation were plainly “disparaging” under the agreement, and the target had been identified with enough specificity for people to know who he was. This case illustrates the ease with which a party to a non-disparagement or confidentiality agreement can find themselves in breach, and serves as a warning regarding the gravity of promises not to make certain statements.
John-Walter Weiser and Alexander Babik used to be business partners in a cigar shop near Gettysburg, Pennsylvania, and were both members of the Commonwealth Constable Association (the “CCA”), a professional organization for state constables. The two men had a falling out, and, on April 16, 2021, Mr. Weiser filed a lawsuit against Mr. Babik related to their business. On May 28, 2021, they agreed to dissolve the business pursuant to a settlement agreement.
On account of the hostility between the two men, the settlement agreement included a non-disparagement provision. The provision banned “any disparaging communication about the other party,” and defined “disparaging communication” broadly as “a communication which is belittling, contemptuous, decrying, degrading, demeaning, denigrative, denigratory, deprecatory, depreciative, depreciatory, derisory, derogative, derogatory, detractive, disdainful, scornful, slighting, and/or uncomplimentary.” It provided that an aggrieved party could seek an injunction to prohibit further disparagement, as well as his attorneys’ fees and costs incurred in connection therewith.
On March 7, 2022, Mr. Weiser filed a motion to enforce the settlement agreement and for an injunction to prohibit Mr. Babik from making further disparaging statements. In his motion, Mr. Weiser alleged that Mr. Babik had made disparaging comments about him in a Facebook post on July 10, 2021, and during a meeting of the CCA on January 20, 2022. Specifically, Mr. Weiser alleged that he and another man, Shawn Vinson, were the only two candidates running for president of the CCA. In his Facebook post, Mr. Babik wrote that he was endorsing Mr. Vinson because of “the corruption of past leadership.” He also stated that “past leadership has abused our money,” “has claimed our money as their own,” and is “being controlling and racist.” At a hearing on the motion, Mr. Babik admitted that he intended to include Mr. Weiser in the term “past leadership.” At the meeting on January 20, 2022, in front of everyone present, Mr. Babik told Mr. Weiser to “stop stalking” him.
On August 26, 2022, the trial court denied Mr. Weiser’s motion, finding that the non-disparagement provision of the settlement was ambiguous. Specifically, the court found that the term “disparaging communication” had been defined with so many synonyms that the term effectively had been rendered ambiguous, because it could be understood in several different ways depending on the context in which the statement was made. The trial court also observed that Mr. Weiser was not mentioned by name in any of the allegedly disparaging statements. Mr. Weiser appealed.
On October 6, 2023, the Superior Court reversed the trial court’s decision that Mr. Babik had not violated the settlement agreement by making disparaging statements on Facebook and at the CCA meeting. The Superior Court found that the definition of “disparaging communication” was not made ambiguous by the inclusion of the synonyms, but instead was meant to apply whenever a statement could be described by one of those words. The Superior Court also found that the non-disparagement provision did not require Mr. Weiser to be identified by name, and that he had been sufficiently identified because he was the only candidate running against Mr. Vinson, so the Facebook post must have referred to him. Finally, the Superior Court held that Mr. Babik’s stalking accusation at the CCA meeting arose to disparagement, because it was an unsupported criminal accusation. The Superior Court then remanded the case to the trial court, so it could determine the scope of injunctive relief and the amount of attorneys’ fees owed to Mr. Weiser.
This case illustrates the importance of honoring non-disparagement and confidentiality agreements in contracts. Courts will enforce them, and an offhand comment at a public meeting or a half-baked post on social media could expose the speaker to significant financial penalties. Mr. Babik, for example, has to pay Mr. Weiser’s attorneys’ fees. Therefore, when a party signs a settlement agreement in which they agree not disparage another person, or not to disclose the details of a lawsuit or accusations, they should take the obligation seriously and should assume that the other party will tell a judge about any public statements made in violation thereof.