Meyers, M. v. Certifiied Guaranty Company, LLC ( 2019 )

J-A22034-19
2019 PA Super 316MATTHEW MEYERS AND EMILY : IN THE SUPERIOR COURT OF
MEYERS, INVESTMENT GRADE : PENNSYLVANIA
BOOKS, LLC :
:
Appellant :
:
:
v. :
: No. 391 EDA 2019
:
CERTIFIED GUARANTY COMPANY, :
LLC, CLASSIC COLLECTIBLE :
SERVICES, LLC, MATTHEW A. :
NELSON, AND HERITAGE :
AUCTIONEERS & GALLERIES, INC. :
Appeal from the Order Dated January 22, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): Dec. Term, 2016 No. 01182
BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED OCTOBER 18, 2019
The Appellants, Matthew Meyers and Emily Meyers (the Meyers) appeal
the order of summary judgment entered in the Philadelphia County Court of
Common Pleas as to their claims of defamation and false light against the
Appellees, Certified Guaranty Company, LLC (CGC), Classic Collectible
Services, LLC (CCS), Matthew A. Nelson (Nelson) and Heritage Auctioneer &
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Galleries, Inc. (Heritage).1 The Meyers contend that because there existed
questions of material fact that should have gone to the jury, the trial court
erred in ruling that those claims were not actionable. Based on the facts
outlined in the parties’ respective motions and responses, the order of
summary judgment must be reversed as to the defamation and false light
claims but affirmed in all other respects.
I.
The Meyers began restoring comic books professionally in 2013. As they
gained experience, they learned the tools of the trade, such as color touch,
piece replacement, tear seals, cleaning or replacing staples, re-glossing and
cover cleaning. By skillfully applying those methods, a restorative artist can
breathe new life into an aged and worn comic book, substantially increasing
its market value. Comic books sold at auction are typically graded on a “1 to
10” scale for overall condition, an “A to C” scale for the quality of restoration,
and a “1 to 5” scale for the quantity of restoration work.
CGC is an entity which grades and certifies comic books for valuation
purposes. CCS is an entity that restores comic books and it is owned by CGC.
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1 The Appellant, Investment Grade Books, LLC, also asserted counts of
intentional interference with existing business relations, intentional
interference with prospective contractual relations, and civil conspiracy. The
trial court granted summary judgment in favor of CGC, CCS, Nelson and
Heritage as to all those counts, but they are not at issue in this appeal; nor is
the Meyers’ claim of civil conspiracy. See Pa.R.A.P. 1925(b)(4)(vii) (errors
not included in a Statement of Issues are waived on appeal).
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At the relevant times, Nelson had dual roles as both a grader for CGC and the
president of CCS. In his capacity as a grader, he evaluated much of the
Meyers’ work. He also corresponded with the Meyers beginning in 2014,
advising them on how to avoid the use of irreversible restoration techniques
that would decrease a comic book’s auction value, such as “trimming” the
outer dimensions of pages and applying too much “color touch” to artwork.
It is undisputed that Nelson appreciated the Meyers’ talent and sought
to hone their ability. In fact, in 2014 alone, the Meyers had received the
highest possible rating from CGC on seven comics they had submitted for
evaluation. The next year, in January 2015, the Meyers met with Nelson at
his office in Florida. Nelson reviewed a number of their restored comic books
and gave them additional advice about which processes to use or avoid.
At the meeting, Nelson complimented a restored “Batman #1” as the
best he had ever seen. Nelson also offered to “press” the Meyers’ restored
copy of “Amazing Fantasy #15” in order to remove a warp in the spine and
thereby achieve an almost perfect grade from CGC. The Meyers followed
Nelson’s advice and were grateful to be mentored by a respected authority on
comic book restoration.
The Meyers continued receiving generally high gradings from CGC well
into 2015, having followed many of Nelson’s suggestions. Nelson confirmed
as much in April 2015, emailing them that a recent submission had earned a
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very high grading. CGC awarded the Meyers the highest known grading in
May 2015 for restored editions of two other comic books.
In 2015, the Meyers received two low gradings by CGC as to another
“Batman #1” and an “Action Comics #7.” The Meyers acknowledged that
unusual circumstances during the restoration had caused a “stiffer” and
“thicker” cover than usual on the Action Comics #7. Tape applied by a
previous owner of the Batman #1 could not safely be removed, increasing its
weight. Because of the disagreements between Meyers and Nelson on CGC’s
grading policies, the Meyers began having their work graded by a competitor
of CGC called Comic Book Certification Service (CBCS).
The falling out between Nelson and the Meyers then took a public turn.
On the Collector’s Society forum, an online message board, a debate emerged
among posters as to why CGC had decided to stop accepting the Meyers’ work.
CGC owns and operates the forum and Nelson moderated it as an
administrator.
In a December 2015 message board thread, numerous posters
questioned whether the Meyers were doing “re-creation” rather than
“restoration” of original work. See Defendants’ Motion for Summary
Judgment, Exhibit “K.”. Posters also remarked that CGC had decided to stop
accepting work from the Meyers because they were destroying comic books
rather than restoring them. See id. (“From what I’m hearing it seems CGC
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won’t grade these books because they are more ‘re-creations’ than
‘restorations’”).
It bears emphasizing here that within the industry, a comic book’s value
becomes greatly diminished once any component is substituted or removed,
such as “trimming” off the damaged edges of a page or “reprinting” covers
with a Xeroxed copy. Such practices both mar the quality of the original comic
book and mislead collectors about how much of the original work remains.
“Re-creation” is often synonymous with “fake” or “counterfeit.”
The Meyers addressed those concerns in posts to the thread dated
December 30, 2015, explaining some of their restoration methods on certain
projects and the reasons they stopped submitting their work to CGC. Id.2
They denied that any of their work was “fake” or photocopied and claimed that
they had stopped submitting work to CGC because they did not want their
“proprietary techniques in the hands of CCS – the industry leader and [their]
direct competition.” Id.____________________________________________
2 In a highly technical post on August 11, 2016, to the CGC message board,
the Meyers explained that they would only “trim” extensively restored comic
books when necessary to remove prior restoration. The post referred
specifically to a highly valuable Detective Comics #27, which had been subject
to lengthy discussion on the message board, including a post by Kenny
Sanderson, an employee of CGC and CCS, who had remarked that it had been
“trimmed.” See Response in Opposition to Defendants’ Motion for Summary
Judgment, at Exhibit “A,” pp. 83-84 (Deposition of Matthew Meyers).
Therefore, while the Meyers may have trimmed certain comic books, the
evidence makes it difficult to say whether original material or prior restorative
materials were removed in the process.
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That same day, Nelson responded on the message board with a post
that is now at issue:
Up to the point we stopped receiving submissions there were
issues with the work, reflected in our assigning either a B or C
classification. A decision was going to be made whether to stop
taking books that exhibited questionable work, but submissions
ceased . . . The point of professional restoration is to return a book
back to as close to its original state as possible using reversible
materials. When work becomes so extensive that it becomes hard
to tell what is real and what is re-created, it is impossible to
accurately and fairly represent a grade to the market.
Id. (Emphasis added).
That post, in turn, generated dozens of lengthy responses on the thread
by third parties, many of which cast the Meyers in a negative light:
At this point there is still a bit of a credibility gap between what
[the Meyers have] said and what Matt Nelson just said.
[The Meyers] said that they didn't go to CGC because Matt is under
their umbrella and they didn't want CCS appropriating their
restorative techniques.
But [Nelson] just confirmed that CGC essentially determined the
books were ungradable and showing restoration techniques that
were questionable.
Evidently [CBCS] has no such qualms and will grade anything for
the business and that's why these books are in [CBCS casings].
Id.The doubts sown in such posts prompted Nelson to respond again, to
clarify “misconceptions” on the thread that could “potentially [affect] the
health of the restored market in the future[.]” Id. On January 3, 2016, he
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then made the following statements, which like the earlier post, are also
alleged to be defamatory:
There are two particular aspects I hope to have been resolved.
They were present on the books we graded (hence the B and C
notations we gave) which were subsequently cross graded by
CBCS, who gave them professional designations and usually a
higher grade. One was the large amount of color touch being
applied to the covers, and the other was the material used as a
glossing agent over that color touch.
....
I believe [the Meyers] used a product called Golden Gel, which is
irreversible[.] To achieve all of these 9.6’s and 9.8’s (according
to CBCS), either these flaws must be masked with a glossing
agent, or only very high grade copies are chosen for restoration.
Based on the information I’ve seen, I don’t believe that you are
restoring books that were previously unrestored high grade
copies. And I don’t think there are enough ‘perfect’ candidates
out there to produce the large number of ultra high grade books
that have entered the market in only the past few months.
Id. (Emphasis added). Nelson concluded by complimenting the Meyers’ talent
and remarking that after the “considerable strides” they had made, “a couple
of the books turned out really great by [CGC’s standards].” Id.In addition to his public posts on CGC’s message board, Nelson made a
number of verbal statements about the Meyers to third parties, all of which
are alleged to be defamatory:
 Commenting to a broker (Marcos Mercado) and one of the Meyers’
buyers (“Cyrus”) in June 2015 that a Detective Comics #29 was
graded a “9,” but deserved a non-professional level designation of
“8.” Response in Opposition to Defendants’ Motion for Summary
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Judgment, at Exhibit “A,” pp. 82-83 (Deposition of Matthew
Meyers).3
 Commenting to Mercado and Cyrus in July 2015 that the Meyers’
work made comics “stiff,” making them more like “re-creations”
than restorations.” Id. at Exhibit “W,” p. 1 (Affidavit of Marcos
Mercado).
 Commenting to the managing director of the Heritage (James
Lonergran Allen) that the Meyers’ work made comics thick and
unnatural to the touch. Id. at Exhibit “I,” p. 25 (Deposition of
James Lonergran Allen).
Other CGC employees allegedly had made similarly negative remarks
about the Meyers’ work. Paul Litch (Litch), CGC’s primary grader, sent an
email in October 2014 to the managing director of the auction house, Heritage,
saying that CGC had “caught a fake cover.” See Response in Opposition to
Motion for Summary Judgment, at Exhibit “S.” The cover was never proven
to be a fake and Litch could not explain in his deposition how he arrived at
that conclusion.
Rumors about the Meyers’ relationship with Nelson/CGC/CCS spread
within their industry, beyond CGC’s online message board.4 Several
____________________________________________
3 Matthew Meyers claimed that these comments caused the buyer to become
disgruntled and request a refund, ultimately receiving $3,000 back from the
Meyers out of the total purchase price of $24,000. See id. CGC did grade
the item a “C,” but the record is not clear as to whether Nelson discussed the
factual basis of that grading.
4See Matthew Meyers, Deposition, at 102 (“Well, I mean just about anybody
who’s ever talked to us says that they know that CGC won’t grade our books
and has reiterated everything that Matt has said.”).
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employees of Heritage took part in an email chain in which they wrote to each
other that the Meyers were “reprinting” comic books and that CGC would no
longer be grading them. Because of these suspicions, Heritage made a
decision not to auction any of the Meyers’ restorations. Yet during discovery
in the ensuing litigation, none of those Heritage employees could verify the
truth of those assertions or even say how they came to the knowledge
exchanged in their emails. See, e.g., Defendants’ Motion for Summary
Judgment, at Exhibit “N” (Deposition of Barry David Sandoval).
James Lonergran Allen (Allen), an employee of Heritage, admitted that
at one point, he thought the Meyers’ work was “fake” and said so to the owner
of one of their restorations at a New York convention in 2015. See Response
in Opposition to Motion for Summary Judgment, at Exhibit “I,” at 41
(Deposition of James Lonergran Allen). The owner was able to convince Allen
that his comic book was not a fake but Allen did not immediately report this
episode back to his colleagues at Heritage who had still been dubious about
the Meyers’ work. Id. at 41-43.
The Meyers also alleged that a number of collectors and dealers
conveyed to them at a convention in Chicago, in August 2016, that CGC had
refused to grade their work and that Heritage had refused to auction it. When
the Meyers spoke directly with Heritage’s officers, they admitted to making a
decision not to accept their submissions. That decision was ultimately
reversed after the Meyers agreed to special conditions as to how their
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restoration work would be described to buyers at auction. These conditions
included caveats on a comic book’s casing that warned of non-standard
restoration techniques.
In their individual capacities and as their corporate entity, Investment
Grade Books, LLC, the Meyers alleged that the above conduct by CGC, CCS,
Nelson and Heritage constituted defamation, false light, tortious interference
with a contract and civil conspiracy. See Complaint, at ⁋⁋ 61-97. Those
defendants each filed motions for summary judgment as to all claims against
them.
The trial court granted those motions for summary judgment and
dismissed the action.5 In its Rule 1925(a) opinion, the trial court reasoned
that the Meyers’ defamation claims concerned statements based on proven
facts “not capable of defamatory meaning” or not published to a third party.
Trial Court Opinion, 5/8/2019, at 15-18. The trial court also found that the
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5 “[S]ummary 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.” Atcovitz v.
Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa. R.C.P.
No. 1035.2(1). When considering a motion for summary judgment, the trial
court must construe all facts of record and make all reasonable inferences in
the light that most favors the non-moving party. See Toy v. Metropolitan
Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). Any question as to whether
there exists a genuine issue of material fact must be resolved against the
moving party, and the right to summary judgment must be “clear and free
from all doubt.” Id.- 10 -
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Meyers had presented no evidence of reputational harm, a necessary element
of defamation. Id. at 16.6
As to the false light claim, the trial court found that none of the subject
statements had been publicized to an extent necessary to create an issue of
fact for the jury. Id. at 19. Moreover, the Meyers had “assumed the risk” of
damaging responses by posting on CGS’s message board and inviting Nelson
to respond. Id. This appeal followed.7
II.
On appeal, the Meyers contend that the statements at issue
communicated to third parties that they re-created rather than restored comic
books. The Meyers argue that those statements are defamatory because they
suggested the Meyers are incompetent and lacking in integrity in the conduct
of their business. According to the Meyers, the underlying premises of the
statements are objectively false. In their brief, CGC, CCS, Nelson and
Heritage contend that the orders of summary judgment should be affirmed
____________________________________________
6 It is unnecessary to recount the trial court’s rulings as to the remaining
counts in the Meyers’ complaint because they are not at issue in this appeal.
7 On appeal, “an appellate court may reverse a grant of summary judgment if
there has been an error of law or an abuse of discretion.” Weaver v.
Lancaster Newspapers, Inc., 926 A.2d 899, 902–03 (Pa. 2007) (internal
citations omitted). A de novo standard of review applies as to whether there
exists an issue of material fact, as this presents a pure question of law. Id.Appellate review in this context must be done in the context of the entire
record. Id. at 903.
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because, as discussed in the trial court’s opinion, all of the statements at issue
are true and, therefore, not actionable.8
Before we address the merits, a short review of the law of defamation
is needed.
III.
A.
“Defamation is a communication which tends to harm an individual’s
reputation so as to lower him or her in the estimation of the community or
deter third persons from associating or dealing with him or her.” Elia v. Erie
Ins. Exch., 634 A.2d 657, 660 (Pa. Super. 1993); see Bell v. Mayview
State Hosp., 853 A.2d 1058, 1062 (Pa. Super. 2004) (same).
In an action for defamation, the plaintiff has the burden of proving:
(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;
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8 CGC, CCS, Nelson and Heritage also argue in the alternative and for the first
time on appeal that no Pennsylvania court has personal jurisdiction over them.
See Appellees’ Brief, at 34-35. However, “personal jurisdiction is readily
waivable.” Grimm v. Grimm, 149 A.3d 77, 83 (Pa. Super. 2016) (quoting
In re Estate of Albright, 545 A.2d 896, 902 (Pa. Super. 1988)); see also
Fletcher–Harlee Corp. v. Szymanski, 936 A.2d 87, 103 (Pa. Super. 2007)
(issue relating to personal jurisdiction waived for failure to comply with
applicable rules of court). These parties did not object to personal jurisdiction
at the trial level; so they have already acquiesced to the court’s authority over
them in this case. Although they assert in their brief that personal jurisdiction
in Philadelphia County was based on a single factual claim which the Meyers
have since abandoned, nothing precluded them from taking up the issue prior
to when this appeal was filed; so the issue cannot be addressed for the first
time here.
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(5) The understanding by the recipient of it as intended to be
applied to the plaintiff; (6) Special harm resulting to the plaintiff
from its publication; [and] (7) Abuse of a conditionally privileged
occasion.
42 Pa.C.S. § 8343(a).
A defendant may prevail against a plaintiff in a defamation suit by
proving: “(1) The truth of the defamatory communication; (2) The privileged
character of the occasion on which it was published; [and] (3) The character
of the subject matter of defamatory comment as of public concern.” Id. at §
8343(b).
The possibility of reputational harm from a statement must be examined
in full context. See id. “The nature of the audience is a critical factor” in this
assessment. Dougherty v. Boyertown Times, 547 A.2d 778, 783 (Pa.
Super. 1988).
B.
While the general elements of defamation are straightforward, the law
is less clear as to when a communication expresses an opinion or a statement
of fact. Pennsylvania has adopted the Second Restatement’s approach to
defamation,9 and it distinguishes a statement of fact from a statement of
opinion by whether it can be “objectively determined.” Restatement (Second)
of Torts, § 566, Comment (a). A statement of fact can be verified as true or
____________________________________________
9 See Krajewski v. Gusoff, 53 A.3d 793, 805-06 (Pa. Super. 2012).
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false, whereas an expression of opinion only conveys a subjective belief of the
speaker. Id. at § 566, Comment (a); see also Milkovich v. Lorain Journal
Co., 497 U.S. 1, 21 (1990) (quoting Scott v. News-Herald, 496 N.E.2d 699,
707 (Ohio. 1986)) (“Unlike a subjective assertion the averred defamatory
language is an articulation of an objectively verifiable event.”).10
As clarified in Comment (b) of Section 566, expressions of opinion fall
into two sub-categories:
(1) The pure type – which “occurs when the maker of the
comment states the facts on which he bases his opinion of the
plaintiff and then expresses a comment as to the plaintiff’s
conduct, qualifications or character.”
(2) The mixed type – which “while an opinion in form or context,
is apparently based on facts regarding the plaintiff or his conduct
that have not been stated by the defendant or assumed to exist
by the parties to the communication. Here the expression of
opinion gives rise to the inference that there are undisclosed facts
that justify the forming of the opinion expressed by the
defendant.”
Dougherty, 547 A.2d at 476-77 (quoting Restatement (Second) of Torts, §
566, Comment (b)); see also Braig, 456 A.2d at 1373 (quoting Beckman v.
Dunn, 419 A.2d 583, 587 (Pa. 1980)) (Comments may take the form of a
“mixed” expression of fact and opinion where the statement is made on the
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10 Whether construed as an expression of fact or opinion, a statement is
defamatory if it “contained a demonstrably false ‘factual connotation.’”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990) (explaining that the
inquiry is whether a statement is “sufficiently factual to be susceptible of being
proved true or false” with reference to “a core of objective evidence.”).
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basis “of undisclosed facts about the plaintiff that must be defamatory in
character in order to justify the opinion.”).
Comment (c) of Section 566 fleshes out the purpose of categorizing
speech in this manner:
A simple expression of opinion based on disclosed or assumed
nondefamatory facts is not itself sufficient for an action of
defamation, no matter how unjustified and unreasonable the
opinion may be or how derogatory it is. But an expression of
opinion that is not based on disclosed or assumed facts and
therefore implies that there are undisclosed facts on which the
opinion is based, is treated differently. The difference lies in the
effect upon the recipient of the communication. In the first case,
the communication itself indicates to him that there is no
defamatory factual statement. In the second, it does not, and if
the recipient draws the reasonable conclusion that the derogatory
opinion expressed in the comment must have been based on
undisclosed defamatory facts, the defendant is subject to liability.
The defendant cannot insist that the undisclosed facts were not
defamatory but that he unreasonably formed the derogatory
opinion from them. This is like the case of a communication
subject to more than one meaning. As stated in § 563, the
meaning of a communication is that which the recipient correctly,
or mistakenly but reasonably, understands that it was intended to
express.
Restatement (Second) of Torts, § 566, Comment (c) (emphases added); see
also Dougherty, 547 A.2d at 477; Veno v. Meredith, 515 A.2d 571, 575
(Pa. Super. 1986) (a pure expression an opinion “is actionable only if it may
reasonably be understood to imply the existence of undisclosed defamatory
facts justifying the opinion.”) (emphasis in original); Kurowski v.
Burroughs, 994 A.2d 611, 618 (Pa. Super. 2010) (when the facts underlying
the opinion are both true and fully disclosed, the opinion is not defamatory as
a matter of law, regardless of whether the opinion is “annoying and
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embarrassing” to the plaintiff) (citing Neish v. Beaver Newspapers, Inc.,
581 A.2d 619, 622–24 (Pa. Super. 1990)).11
The United States Supreme Court has distilled this concept yet further,
explaining that a speaker does not become immune from liability merely by
couching a statement as an “opinion”:
Even if the speaker states the facts upon which he bases his
opinion, if those facts are either incorrect or incomplete, or if his
assessment of them is erroneous, the statement may still imply a
false assertion of fact. Simply couching such statements in terms
of opinion does not dispel these implications[.]
Milkovich, 497 U.S. at 18-19.
Accordingly, and as held by Pennsylvania courts, a statement qualified
by the speaker as being only an opinion may nevertheless be considered a
statement of fact if it could “reasonably be interpreted” as such by the
audience. See Braig v. Field Communications, 456 A.2d 1366, 1373 (Pa.
Super. 1983). An opinion can be defamatory if is misleading or based on
undisclosed facts which are not true. Id.Whether a statement constitutes an opinion or a statement of fact is a
question of law for a court to determine in the first instance. See Mathias v.
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11 A heightened standard applies where the plaintiff is a public official or public
figure, in which case it must be shown that the defendant published a
statement with “actual malice,” which is defined as having “knowledge that
[the statement] was false or with reckless disregard of whether it was false or
not.” Curran v. Philadelphia Newspapers, Inc., 546 A.2d 639, 642 (Pa.
Super. 1988). This standard does not apply in the present case because the
Meyers are not alleged to be public figures.
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Carpenter, 587 A.2d 1, 3 (Pa. Super. 1991). Once a court determines that
a statement can be construed as potentially defamatory, depending on the
kind of statement at issue, the jury then resolves whether the plaintiff can
prove the elements of defamation and whether the defendant can prove the
truth of the statement. See Kurowski, 994 A.2d at 616 (“If the court
determines that the communication is capable of a defamatory meaning, it
then becomes the jury’s function to decide whether it was so understood by
those who read it.”). “In determining whether the challenged communication
is defamatory, the court must decide whether the communication complained
of can fairly and reasonably be construed to have the libelous meaning
ascribed to it by the party.” Id. at 617.
C.
1.
Applying the above standards to this case, if Nelson made a derogatory
statement about the Meyers based on false and defamatory facts, he is subject
to liability for those statements, even if expressed as an opinion. The crux of
the subject posts on the CGC message board was a claim that the Meyers
were “re-creating” valuable comic books and passing them off as “restored.”
Nelson noted that CGC was about to stop grading the Meyers’ comic books
due to “issues with the work,” such as their suspected use of too much “color
touch” on covers and concealing a “glossing agent.” Nelson stated, or at least
implied, that the Meyers had only received non-professional gradings of “B”
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or “C” for work submitted to CGC, which could have been misleading in light
of the numerous “A” grades the Meyers had gotten from CGC in the past.
Readers could have understood Nelson to be pronouncing as a
statement of verifiable fact that the Meyers did not do professional level
restoration. Worse, they could have understood Nelson to be insinuating that
the Meyers were defrauding their buyers. For similar reasons, Nelson’s verbal
remarks to buyers and brokers could have reasonably been interpreted as
defamatory statements of fact or expressions of opinion. By telling those
individuals that the Meyers’ work was “re-creation” and that their restorations
felt “thick” or “like cardboard,” Nelson could have been understood as making
an accusation of fraud or incompetence against the Meyers. At least one buyer
seemed to interpret Nelson’s comments in a potentially defamatory context,
prompting him to demand a refund from the Meyers on a recent purchase.
Moreover, Nelson admitted that he did not have a full understanding of
the Meyers’ techniques and, without providing any figures or dates, Nelson
suggested on the message board that the Meyers had produced too many
“high grade” issues in a short span of time. In other words, Nelson thought
the work was too good to be true, leaving readers to wonder what exactly the
Meyers had done to hide the character of their work. Nelson also directly
contradicted the Meyers’ claims that they achieved consistently high grades
due to the sheer amount of time they put into each project rather than the
use of disreputable methods.
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What all of this shows is that there exists a genuine issue of material
facts as to whether the subject posts on the CGC message board12 and the
verbal statements to third parties were based on true facts. A trier of fact
could determine that all of the subject communications were either statements
of fact not verified to be true or mixed opinions based on misleading or
undisclosed defamatory facts. See Milkovich, 497 U.S. at 18-19; Braig, 456
A.2d at 1373; Beckman, 419 A.2d at 587. Summary judgment was improper
because if the facts underlying a statement “are either incorrect or incomplete,
or if his assessment of them is erroneous, the statement may still imply a
false assertion of fact.” See Milkovich, 497 U.S. at 18-19. Thus, since the
truth of the subject statements is in dispute, a jury should resolve that genuine
question of fact and determine if the Meyers can prove the elements of
defamation enumerated in 42 Pa.C.S. § 8343(a), and if the Nelson/CGC/CCS
can prove the elements of 42 Pa.C.S. § 8343(b).
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12 As an agent of CGC and CCS, Nelson’s statements clearly may be imputed
to those corporate entities. CGC argues that it has no liability for statements
posted on its message board under the Communications Decency Act, 47
U.S.C. § 230. See Appellees’ Brief, at 53-55. The Act shields a provider of
an interactive computer service from liability for content posted on the online
service, but only if the service provider did not itself generate the content.
The content at issue here was provided by Nelson, in his capacity as a member
of CGC, so CGC was both a service provider and a provider of the subject
content, making the Act inapplicable.
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2.
With respect to the defamation claim against Heritage, the trial court
also erred in granting summary judgment. See Trial Court Opinion, 5/8/2019,
at 18. Almost all of the subject statements were internal communications
between Heritage employees. They alluded to unsubstantiated claims that
the Meyers had “reprinted” covers or trimmed pages, leading to the decision
of Heritage to cease the auctioning of the Meyers’ work. Such communications
alone are not defamatory for lack of publication to a third party, as the Meyers
acknowledge. However, the Meyers identified evidence that the content of
those messages was somehow disclosed to third parties. Users on CGC’s
online message board and acquaintances of the Meyers apparently knew of
and referred to Heritage’s decision not to auction their work.
More specifically, James Lonergran Allen, a Heritage employee,
commented to a third-party dealer at a New York convention in 2016 that a
comic book restored by the Meyers was “fake.” See Response in Opposition
to Motion for Summary Judgment, at Exhibit “I,” at 41. Even though the
dealer convinced Allen that the work was properly restored, and Allen agreed
that Heritage would auction it, the statement was still published and
defamatory per se. See Restatement (Second) of Torts §570 (false
statements that have detrimental effect on “the plaintiff’s fitness to conduct
business” are defamation per se, making it unnecessary for plaintiffs to prove
special damages.). Moreover, the fact that Allen spoke of Heritage’s position
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to third parties supports the Meyers’ claim that the substance of the Heritage
emails was revealed to the public. In light of this evidence of publication to
third parties, the trial court erred in granting summary judgment on the count
of defamation as to Heritage.
D.
The orders of summary judgment as to the false light claim must also
be reversed. The tort is defined as follows:
One who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to
liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be
highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard
as to the falsity of the publicized matter and the false light in which
the other would be placed.
Restatement (Second) of Torts, § 652E; Neish v. Beaver Newspapers, Inc.,
581 A.2d 619, 624 (Pa. Super. 1990) (“a publication is actionable if it is not
true, is highly offensive to a reasonable person and is publicized with
knowledge or in reckless disregard of its falsity”). “[U]nlike the law of
defamation . . . false light invasion of privacy offers redress not merely for the
publication of matters that are provably false, but also for those that, although
true, are selectively publicized in a manner creating a false impression.”
Krajewski v. Gusoff, 53 A.3d 793, 806 (Pa. Super. 2012).
Here, the trial court found that none of the statements made by Nelson
and Heritage employees to third parties was sufficiently publicized for the
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purposes of a false light claim. See Trial Court Opinion, 5/8/2019, at 18-19.
The trial court also ruled that the Meyers had “assumed the risk” of the
statements posted on CGC’s message board by entering the fray with their
own posts. Id.As discussed above, the statements at issue here are potentially harmful
to the Meyers’ reputations and standing within their industry. The statements,
or the reasonable implications of the statements, have not been proven true.
Pennsylvania does not recognize “assumption of risk” as a defense to a false
light claim, and regardless, the case facts in no way suggest that the Meyers
ever invited a defamatory comment about themselves. Although statements
spoken to a third party may not constitute “publication” for the purposes of
the tort of false light, there is evidence in the record that those same
defamatory statements by CGC, CCS, Nelson and Heritage were publicly
disseminated on CGC’s message board and elsewhere. Thus, the trial court’s
orders of summary judgment as to the false light claims cannot stand.
Reversed in part, affirmed in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/19
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