Balletta v. Spadoni , 2012 Pa. Commw. LEXIS 178 ( 2012 )

CONCURRING/DISSENTING

OPINION BY

Judge McCULLOUGH.

I concur in the Majority’s decision to affirm the dismissal of the complaint against Mr. Spadoni, both individually and in his official capacity, as well as the Northampton County Solicitor, the Northampton County Sheriffs office, and Mr. Ruberry in his official capacity as well. However, I dissent as to the Majority’s decision to affirm the trial court’s dismissal of the defamation claim against Mr. Ru-berry individually on the basis of a demurrer as it is premature to conclude that, as a matter of law, certain of his statements cannot support a suit for defamation.

I respectfully disagree with the Majority’s interpretation that as a matter of law, Mr. Ruberry’s statements are incapable of defamatory meaning as a mere expression of opinion. The subject newspaper article recites that Mr. Ruberry “speculated” that appellants are “paper terrorists” and are “fellow travelers” with various and specifically named organizations which he labels as “anti-government.” “Speculation” is not the same as an “opinion” and instead is indicative that the speaker is basing his comments on something other than a complete factual background. Consequently, I believe such statements do not fall within the absolute privilege of Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Further, as to the essence of whether Appellants have a claim for “constitutional defamation” pursuant to Article I, Section I of the Pennsylvania Constitution, I believe we do not reach this issue given my position as stated above. See County Commissioners Association v. Dinges, 935 A.2d 926, 933 n. 11 (Pa.Cmwlth.2007) (“[Cjourts will avoid constitutional issues when the issue at hand may be decided on other grounds.”) (citation omitted).