Fox, J. v. Smith, S. , 211 A.3d 862 ( 2019 )

J-A09042-19
2019 Pa. Super. 166
JOY M. FOX : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STACEY SMITH, DREW J. BAUM, :
GINAMARIE ELLIS, THERESA :
AGOSTINELLI, STEVE COCOZZA, : No. 1938 EDA 2018
ELLEN LUONGO, STEVEN LUONGO, :
MARYANN D. FURLONG, RICHARD B. :
KERNS, WILLIAM PASCALE, :
REPUBLICAN COMMITTEE OF :
CHESTER HEIGHTS AND COMMITTEE :
FOR THE FUTURE OF CHESTER :
HEIGHTS, :
:
:
APPEAL OF: THERESA AGOSTINELLI :
AND DREW BAUM :
Appeal from the Order Dated June 15, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 01438 February Term, 2018
JOY M. FOX : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STACEY SMITH, DREW J. BAUM, :
GINAMARIE ELLIS, THERESA :
AGOSTINELLI, STEVE COCOZZA, : No. 1942 EDA 2018
ELLEN LUONGO, STEVEN LUONGO, :
MARYANN D. FURLONG, RICHARD B. :
KERNS, WILLIAM PASCALE, :
REPUBLICAN COMMITTEE OF :
CHESTER HEIGHTS AND COMMITTEE :
FOR THE FUTURE OF CHESTER :
HEIGHTS, :
:
:
APPEAL OF: STACEY SMITH :
J-A09042-19
Appeal from the Order Dated June 15, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 01438 February Term, 2018
JOY M. FOX : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STACEY SMITH, DREW J. BAUM, :
GINAMARIE ELLIS, THERESA :
AGOSTINELLI, STEVE COCOZZA, : No. 1952 EDA 2018
ELLEN LUONGO, STEVEN LUONGO, :
MARYANN D. FURLONG, RICHARD B. :
KERNS, WILLIAM PASCALE, :
REPUBLICAN COMMITTEE OF :
CHESTER HEIGHTS AND COMMITTEE :
FOR THE FUTURE OF CHESTER :
HEIGHTS, :
:
:
APPEAL OF: WILLIAM PASCALE AND :
DREW BAUM :
Appeal from the Order Dated June 15, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 01438 February Term, 2018
JOY M. FOX : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STACEY SMITH, DREW J. BAUM, :
GINAMARIE ELLIS, THERESA :
AGOSTINELLI, STEVE COCOZZA, : No. 1968 EDA 2018
ELLEN LUONGO, STEVEN LUONGO, :
MARYANN D. FURLONG, RICHARD B. :
KERNS, WILLIAM PASCALE, :
REPUBLICAN COMMITTEE OF :
CHESTER HEIGHTS AND COMMITTEE :
:
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J-A09042-19
FOR THE FUTURE OF CHESTER :
HEIGHTS, :
:
:
APPEAL OF: ELLEN LUONGO, :
STEVEN LUONGO, REPUBLICAN :
COMMITTEE OF CHESTER HEIGHTS, :
AND COMMITTEE FOR THE FUTURE :
OF CHESTER HEIGHTS :
(COLLECTIVELY, "MOVING :
DEFENDANTS”) :
:
:
Appeal from the Order Dated June 15, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 01438 February Term, 2018
BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI, J.
OPINION BY PELLEGRINI, J.: FILED MAY 23, 2019
The Appellants, Stacey Smith, Drew J. Baum, Ginamarie Ellis, Theresa
Agostinelli, Steve Cocozza, Ellen Luongo, Steven Luongo, Maryann D. Furlong,
Richard B. Kerns, William Pascale, the Republican Committee of Chester
Heights, and the Committee for the Future of Chester Heights, seek review of
the orders entered on June 15, 2018, in the Court of Common Pleas of the
First Judicial District overruling their preliminary objections to venue. We
affirm.
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
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I.
This defamation case stems from a 2017 mayoral campaign held in
Chester Heights, a borough of Delaware County. The Appellee, Joy Fox, ran
as the Democratic candidate against Stacey Smith, the Republican candidate.
Allegedly, Smith and the other Appellants posted false information about Fox
on a website they created called www.chfactcheck.com indicating that she had
been charged with check fraud in North Carolina in the 1990s. The website
contained links to several background checks which purported to document
the charges. The Appellants promoted the website to residents of Chester
Heights with online social media posts, local campaign flyers and billboards.
Smith won the election and became mayor of Chester Heights.
In her complaint, Fox alleged that the check fraud claim was false and
asserted several causes of action against the Appellants, including civil
conspiracy, defamation and false light. She filed suit not in Delaware County
but rather in Philadelphia County. Fox averred that her claims were filed in a
proper forum because the Appellants’ flyers were read by mail processors in
Philadelphia County and the information which the Appellants published on
the above website was accessed by residents there, including a personal friend
of Fox (Kellie Clark), who understood the check fraud story to be damaging to
Fox’s reputation.
The Appellants each filed preliminary objections asserting that venue
was improper in Philadelphia County. In overruling those objections, the trial
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court applied the rule set forth in Gaetano v. Sharon Herald Co., 231 A.2d
753 (Pa. 1967), a case involving a defamatory newspaper article. See Trial
Court Opinion, 8/30/18, at 4-5. The Pennsylvania Supreme Court held in
Gaetano that a defamation claim may be filed in a county where the material
is disseminated to a third party who personally knows the plaintiff and
understands the material to be defamatory.
The Appellants assert in their brief that the trial court erred in applying
Gaetano, which they claim is out-of-date and impracticable as to internet-
based defamation claims. The Appellants make two main sub-arguments in
support of a new venue rule: (a) Delaware County is the only proper forum
because it is where all the parties reside and where most of Fox’s reputational
harm occurred; and (b) forum should be limited to Delaware County because
the Appellants did not intend for their online postings to have an effect
anywhere else.
II.
A.
This appeal concerns a purely procedural question of law as to whether
Fox filed suit in an appropriate forum. Specifically, the issue is one of venue,
which “relates to the right of a party to have the controversy brought and
heard in a particular judicial district.” Commonwealth v. Bethea, 828 A.2d
1066, 1074 (Pa. 2003). The venue of a court of common pleas is “generally
prescribed by rules” of the Pennsylvania Supreme Court. Id. (citing 42
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Pa.C.S. § 931(c)). Pa.R.C.P. 1006 provides in pertinent part that “an action
against an individual may be brought in and only in a county . . . where a
transaction or occurrence took place out of which the cause of action arose or
in any other county authorized by law[.]” Pa.R.C.P. 1006(a)(1); see also
Pa.R.C.P. 2179(a)(4) (providing that “a personal action against a corporation
or similar entity may be brought in . . . a county where a transaction or
occurrence took place out of which the cause of action arose[.])”1
The transaction or occurrence of a defamation action involves
“publication” of defamatory material. See Flaxman v. Burnett, 574 A.2d
1061, 1066 (Pa. Super. 1990) (“An essential element of a defamation action
is publication.”).2 In Gaetano, the Pennsylvania Supreme Court held that
venue is proper in a place of publication, which was defined as the forum
where a communication was read by a third party personally known to the
plaintiff, such as her “neighbors or associates,” causing harm to the plaintiff’s
____________________________________________
1 Although a plaintiff generally may decide the forum in which to file suit, the
issue of whether venue in a given county is proper is treated the same way as
a challenge to a court’s jurisdiction to hear the case. See Deyarmin v.
Consol. Rail Corp., 931 A.2d 1, 10 (Pa. Super. 2007) (citing Kring v. Univ.
of Pittsburgh, 829 A.2d 673, 676 (Pa. Super. 2003)).
2 The Gaetano Court explained that “[t]he most important function of an
action for defamation is to give the innocent and injured plaintiff a public
vindication of his good name. Its primary purpose is to restore his unjustly
tarnished reputation, and ‘reputation is the estimation in which one’s
character is held by his neighbors or associates.’” 231 A.2d at 755 (citing
Restatement, Torts § 577, comment b (1938)).
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reputation. 231 A.2d at 755. Further, for the material to cause the requisite
harm, the third party must understand it be defamatory. Id.
The Gaetano Court applied that rule in holding that venue for the
plaintiff’s suit was proper in Allegheny County, where the plaintiff suffered
reputation harm, regardless of the fact that the defendants had printed the
subject newspapers in Mercer County. The Court explained that
if one writes or prints a defamatory letter in Mercer County and
mails it to an addressee in Allegheny County, there obviously is
no publication of the libel until the letter is read in Allegheny
County and (which is most important) understood as being
defamatory of the plaintiff.
Id.
Gaetano was decided in 1967. Since that time, no Pennsylvania court
has deviated from its venue rule for defamation cases. The central inquiry
has, therefore, remained whether the plaintiff suffered reputational harm in a
given county and not how easily a given medium can transmit the defamatory
material. The parties in this case agree that if the Gaetano venue rule
applies, then the orders on review must stand. However, the parties differ on
whether Gaetano applies as to an internet defamation suit and this appears
to be an issue of first impression in Pennsylvania.
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B.
In the absence of Pennsylvania law regarding the precise issue at hand,
the federal courts’ approach to venue is instructive.3 Although several federal
courts have noted the difficulty in formulating a workable venue rule for
internet defamation claims, they tend to support Fox’s position that
Philadelphia County is a proper forum.
For example, in Capital Corp. Merch. Banking v. Corp. Colocation,
Inc., 2008 WL 4058014, at *2 (M.D. Fla. Aug. 27, 2008), a plaintiff asserted
claims in Florida against Pennsylvania defendants due to material posted on a
website. The court expressed concern that “the harm from an online
defamatory statement can occur in any place where the website . . . is
viewed[.]” Capital Corp., 2008 WL 4058014, at *2. Venue was nevertheless
held to be proper in Florida because the plaintiff had alleged “that the website
was accessed in this District, that it suffered harm to its reputation in this
District, and that it suffered an economic injury in this District.” Id. These
circumstances created a “substantial nexus” between the plaintiff’s chosen
forum of Florida and the acts originating in Pennsylvania which gave rise to
the defamation claim. Id.
____________________________________________
3 The decisions of federal courts other than the United States Supreme Court
are not binding but may be considered as persuasive authority. See
generally Hall v. Pennsylvania Bd. of Prob. & Parole, 851 A.2d 859, 863
(Pa. 2004).
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Crucially, under this framework, the plaintiff’s choice of forum is not
limited by her place of residence. In fact, in a case involving internet
defamation, a court cited Capital Corp. in holding that venue is proper in any
forum where the plaintiff has suffered the requisite harm to her reputation:
Nor is the Court persuaded by Defendants’ argument that venue
should lie in the district in which publication occurred and Plaintiffs
reside. Defendants are correct in that, “in the context of
defamation and other nonphysical torts, courts generally hold that
venue under Section 1391 (b)(2) is proper in the district where
the injured party resides and the defamatory statements were
published.” Capital Corp., 2008 WL 4058014, at *3 (collecting
cases). However, these cases do not address, much less
rule out, the possibility of venue lying in another judicial
district where the plaintiff does not reside, but
nevertheless has suffered economic or reputational injury,
and where publication has occurred.
Indeed, the holdings in these cases appear to be consistent
with the prevailing approach in the defamation context that
“venue is proper in a district in which the allegedly
defamatory statement was published, particularly if injury
was suffered in the same district.” Kravitz v. Niezgoda,
2012 WL 4321985, at *4 (E.D. Pa. Sept. 21, 2012).
Eakin v. Rosen, 2015 WL 8757062, at *6 (S.D. Ga. Dec. 11, 2015) (emphasis
added, some citations omitted) (overruling defendants’ objection to venue
where plaintiffs resided in the Middle District of Georgia but filed a defamation
suit in the Southern District of Georgia based in part on internet postings).
Most recently, in Seidel v. Kirby, 296 F. Supp. 3d 745 (D. Md. 2017),
the court stressed that venue in internet defamation actions should not be
based solely on whether a third party in a particular forum has accessed
material understood to be defamatory toward a plaintiff:
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This rule, that an act of defamation “occurs” where it is publicized
such that it may harm a plaintiff's reputation, is of little help when
the publication is effectively world-wide. It would seem that, in
the context of defamation publicized over the Internet, such a rule
would make venue proper in any district in the United States.
296 F. Supp. 3d at 753 (citations omitted).
To reduce the number of possible venues for an internet defamation
suit, the Seidel court narrowly construed the federal venue statute, 28 U.S.C.
§ 1391. Part (a)(2) of that statute makes venue proper in a judicial district
only where a “substantial part” of the underlying conduct giving rise to the
claim occurred. Id. at 753-54. The Seidel court held that for the purposes
of part (a)(2), a “substantial part” of a defamation action occurs when a third
party “actually knows” the plaintiff, reads the defamatory material, and
understands it to be defamatory:
The venue statute, however, does not authorize venue in any
district where any events that gave rise to the action occurred,
but rather where a substantial part of those actions occurred.
Therefore, while it may not always be the case, the district in
which a plaintiff resides is often going to be where the substantial
part of the harmful publication occurred, i.e. where people are
exposed to the material who may actually know the plaintiff or
interact with him in a way that could be affected by the
information.
Id. at 753 (emphases in original).4
____________________________________________
4 Although the plaintiffs in Seidel filed suit in the same forum where they
resided, the court cited favorably to Eakin’s conclusion that venue in that
case was “proper in a different district” than forum of the plaintiffs’ residence
because reputational harm occurred there. Seidel, 296 F. Supp. 3d at 753.
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While couched in slightly different language, the above federal courts
have adopted a venue rule for internet defamation that mirrors the principles
of Gaetano. We follow the lead of those authorities in holding that a plaintiff
may file a defamation action in any county where an internet posting causes
the requisite harm to the plaintiff’s reputation. As outlined in Gaetano, this
harm occurs when an internet communication is read by a third party who the
plaintiff knows personally and who understands the communication to be
harmful to the plaintiff’s reputation. See Gaetano, 231 A.2d at 755-56.
Since the county in which that third party lives is a place of publication, it is a
place where the plaintiff may file suit. Id.
Under this standard, the Appellants’ objection to venue in Philadelphia
County was properly overruled. Fox alleged that her friend resided in
Philadelphia County and read material on a website which had been posted by
the Appellants. Fox’s friend understood the material to be defamatory. This
reputational harm made the friend’s county of residence a place of publication
and a proper venue for Fox’s defamation claims.5
____________________________________________
The dispositive factor in both of those cases is that venue lays wherever the
reputational harm occurs, including but not limited to where the plaintiff lives.
5 We find no merit in Fox’s alternative basis for venue – that the Appellants’
campaign flyers were read by mail processors in Philadelphia County. Fox did
not allege that she personally knew the workers in the mail processing facility
so the flyers caused her no reputational harm for the purposes of venue.
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C.
Finally, we decline to limit venue to Delaware County based on the
Appellants’ stated intent to damage Fox’s reputation only in that lone forum.
The website in question was accessible to the general public. The Appellants
knew or should have known the scandalous information they posted online
(and advertised with campaign flyers and social media posts) would be read
by Fox’s neighbors or associates throughout the state. See Reed v. Brown,
166 A.3d 570, 576 (Pa. Cmwlth. 2017) (holding that venue was proper in
forum other than place of original publication where a defendant’s agent
republished the defamatory material, since “republication” was “authorized,
intended or reasonably expected.”).
Fox therefore had the choice to file suit in Philadelphia County, where
she is alleged to have suffered reputational harm. If litigating in that forum
caused the Appellants any hardship or inconvenience, then their remedy was
to move to dismiss or transfer the case on those grounds.6
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6 “For the convenience of parties and witnesses the court upon petition of any
party may transfer an action to the appropriate court of any other county
where the action could originally have been brought.” Pa.R.C.P. 1006(d)(1).
“[A] petition to transfer venue should be granted only if the defendant
‘demonstrates, with detailed information on the record, that the plaintiff’s
chosen forum is oppressive or vexatious to the defendant.’” Bratic v.
Rubendall, 99 A.3d 1, 7 (Pa. 2014) (citing Cheeseman v. Lethal
Exterminator, Inc., 701 A.2d 156, 162 (Pa. 1997)). “Transfer on forum non
conveniens grounds is proper only if the defendant proves that the chosen
forum is oppressive to him.” Moody v. Lehigh Valley Hosp.-Cedar Crest,
179 A.3d 496, 508 (Pa. Super. 2018). Determining whether a forum is
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Orders affirmed.
Judge Kunselman joins the Opinion.
Judge Murray files a concurring opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/19
____________________________________________
oppressive “requir[es] consideration of the totality of the circumstances. The
distance between the two forums, the disruption to the parties’ personal and
professional lives, are part of the equation, but no one factor is dispositive.”
Id. at 508 n.9.
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