Lapinski, R. v. Poling, D.

J-A05012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD A. LAPINSKI, GEORGE E. : IN THE SUPERIOR COURT OF
FITZGERALD AND MARY JO SIVY : PENNSYLVANIA
:
Appellants :
:
v. :
:
DAVID POLING, INDIVIDUALLY AND :
IN HIS CAPACITY AS CHAIRMAN OF :
THE ECONOMY BOROUGH :
DEMOCRATIC COMMITTEE AND :
MICHAEL SISK, INDIVIDUALLY AND :
IN HIS CAPACITY AS CHAIRMAN OF :
THE BEAVER COUNTY DEMOCRATIC :
COMMITTEE :
:
Appellees : No. 250 WDA 2016
Appeal from the Order January 20, 2016
In the Court of Common Pleas of Beaver County
Civil Division at No(s): 10754 of 2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 07, 2017
Appellants, Richard A. Lapinski, George E. Fitzgerald, and Mary Jo
Sivy, appeal from the order entered in the Beaver County Court of Common
Pleas, which sustained the preliminary objections of Appellees, David Poling
and Michael Sisk, and dismissed Appellants’ complaint. We affirm.
The relevant facts and procedural history of this appeal are as follows.
Appellants are residents of Economy Borough in Beaver County,
Pennsylvania, and were members of the Bipartisan Committee for a Better
Economy Borough (“Committee”) until it disbanded in October 2013. The
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Committee supported some candidates in the 2013 local municipal elections.
During the 2013 elections, Mr. Fitzgerald was a candidate for mayor of
Economy Borough, Ms. Sivy was a candidate for tax collector of Economy
Borough, and Mr. Lapinski served as treasurer of the Committee. Appellees
were also active in local politics. Mr. Poling was the mayor of Economy
Borough and chairman of the Economy Borough Democratic Committee, and
Mr. Sisk was the chairman of the Beaver County Democratic Committee.
In September 2013, a dispute arose concerning the campaign finance
reports of the Committee, Mr. Fitzgerald, and Ms. Sivy. Appellees sent
letters dated September 9, 2013, and September 17, 2013 (“Letters”), to
three Beaver County entities: the Bureau of Elections; the Board of
Elections; and the District Attorney’s Office. Appellees sent the Letters on
Economy Borough Democratic Committee letterhead and signed the Letters
as chairpersons of their respective political committees. In the Letters,
Appellees asked for an investigation into the Committee’s 30-day post
primary campaign finance report, based on the Committee’s alleged failure
to comply with reporting requirements. The Letters explained that Appellees
had documentary proof of the Committee’s noncompliance.1
In each letter, Appellees referred to several purported facts to support
____________________________________________
1
The Letters reference several attachments and detail the content of each
attachment, but the attachments are not in the certified record, and they
were not appended to Appellants’ complaint.
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their assertions. In the September 9th letter, Appellees explained Mr.
Lapinski had prepared the 30-day post primary campaign finance report on
behalf of the Committee. Appellees noted the report disclosed total
expenditures in the amount of $978.27. Appellees then listed several
observations to indicate the Committee had underreported their total
expenditures. First, Appellees explained the Committee sent to voters
approximately 11,000 mailers; Appellees estimated the cost of the postage
was nearly $4,000.00. Second, Appellees stated the Committee posted at
least 17 campaign signs throughout Economy Borough. Appellees
represented each sign costs $150.00, based on the amount that appeared in
a police report concerning damage to one of the Committee’s signs.
Appellees concluded, in relevant part, as follows:
[The Committee] has yet to produce evidence of accuracy
and transparency in their campaign finance reports.
Clearly, the evidence provided in this complaint…will
conclude that [the Committee’s] expenditures filed in the
30-day post primary campaign finance report failed to
disclose all monies spent in the 2013 primary election in
Economy Borough, PA. [We are] urging the [B]oard of
[E]lections and the [D]istrict [A]ttorney to take all
necessary actions to ensure this [C]ommittee acts
according to Pennsylvania election laws. The state
provides detailed guidelines on its laws as well as fines and
punishment that pertain to fraudulent campaign finance
reporting. … It’s apparent to [us] that th[e C]ommittee
has not disclosed accurate expenditures, in kind
contributions, or total contributions.
(See Letter dated 9/9/13, attached as Exhibit 1 to Appellants’ Complaint;
R.R. at 16a.)
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Appellees stated in the September 17th letter that Mr. Fitzgerald and
Ms. Sivy failed to file 30-day post primary campaign reports. Appellees
explained each candidate sent out to voters during the 2013 campaign over
5,500 mailers. Appellees added that these mailers bore the same
identification numbers which appeared on the Committee’s 2013 campaign
materials. The September 17th letter concluded, in relevant part, as follows:
[We] strongly believe[] that…[Mr.] Fitzgerald[’s] and [Ms.]
Sivy[’s] campaign materials were funded by the
[Committee]. However, both candidates failed to report
their campaign expenditures to the Beaver County Bureau
of Elections…. … The state’s election laws clearly caution
candidates about failure to produce and report all
campaign finances that exceed $250.00…which include
fines, and criminal charges for fraudulent campaign
financing. [We are] asking our elected county officials to
order a[n] investigation into [Mr.] Fitzgerald and [Ms.]
Sivy for failure to comply with the Pennsylvania election
laws. These candidates clearly with the evidence
provided…are in violation of the Pennsylvania Finance
Reporting Laws section 1638.
(See Letter dated 9/17/13, attached as Exhibit 2 to Appellants’ Complaint;
R.R. at 17a.)
The Bureau of Elections referred Appellees’ complaints to the District
Attorney’s Office, which transferred the complaints to the Attorney General’s
Office, due to a conflict. After it conducted an investigation, the Attorney
General’s Office did not file criminal charges against Appellants and the
Committee for violation of campaign finance laws. In their defamation/false
light complaint, Appellants alleged the Attorney General’s Office issued a
letter to the Beaver County District Attorney explaining why it declined to
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prosecute Appellants for the alleged campaign finance violations set forth in
the Letters. (Appellants’ Complaint, filed 9/10/14, at ¶¶ 39-40). The
Attorney General’s Office letter does not appear in the certified record.
During the 2013 election, John Paul Vranesevich reported Beaver County
news on a website he maintained. In September and October 2013, Mr.
Vranesevich wrote and published on the website three articles that discussed
the allegations in the Letters. Mr. Vranesevich’s articles also summarized
and quoted the Letters.
On May 15, 2014, Appellants commenced this defamation/false light
action against Appellees and Mr. Vranesevich by writ of summons.
Appellants filed a complaint against Appellees and Mr. Vranesevich for
defamation and false light on September 10, 2014. Appellants included the
following averments in their complaint:
11. [Appellants] are longtime residents of Economy
Borough, Beaver County, who are active in the community
and in local politics.
* * *
13. Fitzgerald was a candidate for mayor of Economy
Borough in the 2013 municipal elections.
14. Sivy was a candidate for tax collector of Economy
Borough in the 2013 municipal elections.
15. [Appellants] were members of the [Committee]
until it disbanded in or about October 2013.
16. At all relevant times, Lapisnki served as treasurer
of the Committee.
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* * *
18. In or about September 2013, [Appellees] drafted,
signed and circulated letters to the Beaver County Bureau
of Elections, the Beaver County Board of Commissioners –
Board of Elections, the Beaver County District Attorney’s
Office and perhaps other individuals….
19. In their [L]etters, [Appellees] called for the
county to launch criminal investigations of [Appellants] and
the Committee for not reporting certain campaign
expenses in violation of campaign finance reporting laws
set forth in the Pennsylvania Election Code, 25 P.S. §
3241, et seq.….
* * *
23. For their [L]etters, [Appellees] used the official
letterhead of the Beaver County Democratic Committee
without the consent or authorization of the committee.
24. [Appellees] identified [Appellants] by name in
their [L]etters.
25. [Appellees] falsely asserted in their September 9
letter that a 30-Day Post-Primary campaign expenditure
report, which was prepared by Lapinski and submitted to
the Beaver County Bureau of Elections on June 20, 2013,
violated the Pennsylvania campaign finance reporting laws.
26. Among other things, [Appellees] falsely claimed in
their September 9 letter that:
a. The expenditures reported by Lapinski in the
Report are false and that Lapinski “failed to disclose
all monies spent in the 2013 primary election in
Economy Borough, PA.”
b. The Committee “has yet to produce evidence
of accuracy and transparency in their campaign
finance reports.”
c. Lapinski and the Committee engaged in
“fraudulent campaign finance reporting.”
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d. “Th[e C]ommittee has not disclosed accurate
expenditures, in kind contributions, or total
contributions.”
27. [Appellees] also erroneously reported the number
of campaign flyers that the Committee mailed to voters
and the number of campaign signs that the Committee
purchased.
28. In addition to their campaign against Lapinski and
the Committee, [Appellees] attacked Fitzgerald and Sivy in
their September 9 letter and in their September 17 letter.
29. [Appellees] erroneously claimed that Fitzgerald
and Sivy broke the law by failing to file 30-Day Post-
Primary campaign expenditure reports with the Beaver
County Bureau of Elections.
30. [Appellees] wrote that “both candidates failed to
report their campaign expenditures to the Beaver County
Bureau of Elections which would have listed all in kind
contributions that were labor donated to both campaigns,”
and [Appellees] called on “elected county officials to order
an investigation into candidates George E. Fitzgerald and
Mary Jo Sivy for failure to comply with the Pennsylvania
election laws.”
31. Upon information and belief, [Appellees]
slandered and smeared [Appellants] by making similar
accusations concerning alleged campaign finance reporting
violations to others in Economy Borough and Beaver
County.
* * *
42. Lapinski and the Committee submitted all
required reports during the 2013 election cycle and did so
in a timely manner.
43. Likewise, Sivy properly submitted the required
30-Day Post-Primary report for 2013, and Fitzgerald was
not required to file said report because his personal
expenses did not exceed $250.00.
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* * *
COUNT I – DEFAMATION
* * *
57. Each of the statements made by [Appellees] was
false.
58. [Appellees] knew that such statements were
false, and/or acted in reckless disregard of their truth or
falsity.
59. [Appellees] had no privilege to make such
statements.
(Appellants’ Complaint, filed 9/10/14, at ¶¶ 11, 13-16, 18-19, 23-31, 42-43,
57-59; R.R. at 5a-12a) (internal citations to exhibits omitted). Appellants
appended to their complaint as exhibits copies of the Letters at issue,
without the attachments to the Letters.
On September 30, 2014, Mr. Vranesevich filed preliminary objections
in the nature of a demurrer.2 Mr. Poling filed preliminary objections in the
nature of a demurrer to Appellants’ complaint on October 27, 2014. On
October 31, 2014, Mr. Sisk also filed preliminary objections in the nature of
a demurrer. In their preliminary objections, Appellees asked the court to
dismiss the complaint because, inter alia, Appellants are public figures and
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2
The trial court sustained Mr. Vranesevich’s preliminary objections and
dismissed Appellants’ complaint against him on April 1, 2015. Appellants did
not challenge the court’s April 1, 2015 order, and Mr. Vranesevich is not a
party to this appeal.
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they failed to plead that Appellees had made the allegedly defamatory
statements with actual malice. For the same reason, Mr. Sisk also asked the
court to dismiss Appellants’ false light claim.
On September 24, 2015, Mr. Poling filed a brief in support of his
preliminary objections. In his brief, Mr. Poling posited the Letters are
incapable of a defamatory meaning. The court conducted a hearing on
Appellees’ preliminary objections on September 28, 2015. At the hearing,
Ms. Sivy joined Mr. Poling’s position on lack of defamatory meaning. The
court sustained Appellees’ preliminary objections and dismissed Appellants’
complaint on January 20, 2016. Appellants timely filed a notice of appeal on
February 16, 2016. On February 23, 2016, the court ordered Appellants to
file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b); Appellants timely complied on March 15, 2016.
Appellants raise three issues for our review:
WHETHER THE TRIAL COURT ERRED IN SUSTAINING
APPELLEES’ PRELIMINARY OBJECTIONS IN THE NATURE
OF A DEMURRER AND CONCLUDING THAT LETTERS
PREPARED AND CIRCULATED BY [APPELLEES] ARE NOT
CAPABLE OF DEFAMATORY MEANING AND ARE NOT
HIGHLY OFFENSIVE TO A REASONABLE PERSON[?]
WHETHER THE TRIAL COURT ERRED IN FINDING THAT
APPELLEES HAD PROPERLY AND TIMELY ARGUED THAT
APPELLANTS HAD NOT SHOWN THAT THE STATEMENTS IN
QUESTION ARE CAPABLE OF DEFAMATORY MEANING
WHEN, IN FACT, APPELLEES FAILED TO RAISE SUCH
ARGUMENTS IN THEIR PRELIMINARY OBJECTIONS[?]
WHETHER THE TRIAL COURT ERRED IN SUSTAINING
APPELLEES’ PRELIMINARY OBJECTIONS IN THE NATURE
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OF A DEMURRER AND CONCLUDING THAT APPELLEES
PREPARED AND SUBMITTED THEIR LETTERS IN THEIR
CAPACITIES AS CHAIRMEN OF TWO DEMOCRATIC
COMMITTEES, NOTWITHSTANDING APPELLANTS’
AVERMENTS THAT APPELLEES ACTED INDIVIDUALLY IN
PART AND USED OFFICIAL LETTERHEAD WITHOUT
CONSENT OR AUTHORIZATION[?]
(Appellants’ Brief at 3-4).
In their first issue, Appellants argue Appellees accused Appellants in
the Letters of criminal acts in violation of Pennsylvania campaign finance
laws. Appellants assert these criminal allegations are capable of a
defamatory meaning as libel per se and are highly offensive to a reasonable
person. Appellants also claim the Letters baldly stated Appellants violated
political campaign advertising laws and implied the existence of undisclosed
defamatory facts. Appellants maintain the Letters did not reference the
nature of the alleged violations or include citations to specific provisions of
the Pennsylvania Election Code. Appellants note the record does not include
the attachments to Appellees’ Letters. Appellants posit they should be
allowed to conduct discovery to determine whether: (1) the proposed
attachments support Appellees’ claims; and (2) the Beaver County officials
who received the Letters would have considered Appellants disparaged after
reading the Letters.
In their second issue, Appellants argue Appellees waived their position
that the statements in the Letters are incapable of a defamatory meaning,
because Appellees failed to raise that contention in their preliminary
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objections. Appellants aver Mr. Poling first challenged the defamatory
meaning of the Letters in his brief in support of his preliminary objections
and again during the hearing on the preliminary objections. Appellants
represent Mr. Sisk joined Mr. Poling’s argument at the hearing but did not
otherwise argue the Letters are incapable of a defamatory meaning.
In their third issue, Appellants argue Appellees did not author the
Letters in their respective capacities as chairpersons of political committees.
Appellants claim Appellees had no authorization to write the Letters on the
official letterhead of the Beaver County Democratic Committee. Appellants
conclude this Court should vacate the trial court’s order that sustained
Appellees’ preliminary objections and dismissed Appellants’ complaint. We
disagree.
The relevant scope and standard of review in examining a challenge to
an order sustaining preliminary objections in the nature of a demurrer are as
follows:
Our review of a trial court’s sustaining of preliminary
objections in the nature of a demurrer is plenary.
Such preliminary objections should be sustained only
if, assuming the averments of the complaint to be
true, the plaintiff has failed to assert a legally
cognizable cause of action. We will reverse a trial
court’s decision to sustain preliminary objections
only if the trial court has committed an error of law
or an abuse of discretion.
All material facts set forth in the complaint as well as
all inferences reasonably [deducible] therefrom are
admitted as true for the purpose of this review. The
question presented by the demurrer is whether, on
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the facts averred, the law says with certainty that
no recovery is possible. Where a doubt exists as to
whether a demurrer should be sustained, this doubt
should be resolved in favor of overruling it.
Regarding a demurrer, this Court has held:
A demurrer is an assertion that a complaint does not
set forth a cause of action or a claim on which relief
can be granted. A demurrer by a defendant admits
all relevant facts sufficiently pleaded in the complaint
and all inferences fairly deducible therefrom, but not
conclusions of law or unjustified inferences. In ruling
on a demurrer, the court may consider only such
matters as arise out of the complaint itself; it cannot
supply a fact missing in the complaint.
Where the complaint fails to set forth a valid cause of
action, a preliminary objection in the nature of a demurrer
is properly sustained.
Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa.Super. 2008) (emphasis in
original) (internal citations omitted). Also, when analyzing a demurrer, the
court “need not consider the pleader’s conclusions of law, unwarranted
inferences from facts, opinions, or argumentative allegations.” Wiernik v.
PHH U.S. Mortg. Corp., 736 A.2d 616, 619 (Pa.Super. 1999), appeal
denied, 561 Pa. 700, 751 A.2d 193 (2000) (internal citations omitted). To
determine if the trial court properly sustained preliminary objections, this
Court examines the averments in the complaint and the documents attached
to the complaint to evaluate the adequacy of the facts averred and to assess
the legal sufficiency of the complaint. Clemleddy Constr., Inc. v.
Yorston, 810 A.2d 693, 696 (Pa.Super. 2002), appeal denied, 573 Pa. 682,
823 A.2d 143 (2003).
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The Uniform Single Publication Act outlines the basics of a defamation
action. See 42 Pa.C.S.A. §§ 8341-8345. Section 8343 provides:
§ 8343. Burden of Proof
(a) Burden of plaintiff.—In an action for defamation,
the plaintiff has the burden of proving, when the issue is
properly raised:
(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.
(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.
(7) Abuse of a conditionally privileged occasion.
42 Pa.C.S.A. § 8343(a). A communication is defamatory if it “tends…to
harm the reputation of another as to lower him in the estimation of the
community or to deter third parties from associating or dealing with him.”
Tucker v. Philadelphia Daily News, 577 Pa. 598, 615, 848 A.2d 113, 124
(2004). “It is not enough that the victim…be embarrassed or annoyed, he
must have suffered the kind of harm which has grievously fractured his
standing in the community of respectable society.” Id.
“Libel is the malicious publication of printed or written matter which
tends to blacken a person’s reputation and expose him to public hatred,
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contempt or ridicule.” Id. See also Agriss v. Roadway Exp., Inc., 483
A.2d 456, 469 (Pa.Super. 1984) (defining libel as “a method of defamation
expressed by print, writing, pictures, or signs”). A publication is also
defamatory if it tends to injure the subject of the publication in his business
or profession. Id. at 461. Statements which impute the commission of a
crime are capable of a defamatory meaning as a matter of law.3 Marcone
v. Penthouse Intern. Magazine for Men, 754 F.2d 1072, 1078 (3d Cir.
1985), certiorari denied, 474 U.S. 1014, 106 S. Ct. 182, 88 L. Ed. 2d 477
(1985) (citing Baird v. Dun & Bradstreet, 446 Pa. 266, 285 A.2d 166
(1971) and Agriss, supra). The Restatement (Second) of Torts § 571
provides: “One who publishes a slander that imputes to another conduct
constituting a criminal offense is subject to liability to the other without
proof of special harm if the offense imputed is of a type which, if committed
in the place of publication, would be (a) punishable by imprisonment in a
state or federal institution….” Restatement (Second) of Torts § 571. See
also Agriss, supra at 473 (noting Pennsylvania generally tends to adopt
Restatement rule in defamation).
It is not necessary th[at] the charge be made in technical
language. It is enough that the language used impute to
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3
The Pennsylvania Election Code, 25 P.S. § 2600, et seq. (“Election Code”),
sets forth political campaign finance reporting and advertising requirements.
25 P.S. §§ 3246, 3258. A violation of the Election Code is a misdemeanor,
the sentence for which is either a fine or imprisonment, at the court’s
discretion. 25 P.S. §§ 3545, 3550.
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the other the criminal offense. … It is not necessary that
the defamer charge any particular criminal offense by
name or description, if the words used imply some crime….
Neither is it necessary that the defamer directly charge the
other with the criminal offense or that the charge be made
as of the speaker’s own knowledge or belief.
Restatement (Second) of Torts § 571, Comment C.
Importantly, public-figure plaintiffs must plead additional elements to
state a cause of action for defamation. Coleman v. Ogden Newspapers,
Inc., 142 A.3d 898, 905 (Pa.Super. 2016). Individuals who are “intimately
involved in the resolution of important public questions or, by reason of their
fame, shape events in areas of concern to society at large” are public
figures. Milkovich v. Lorain Journal Co., 497 U.S. 1, 14, 110 S. Ct. 2695,
111 L. Ed. 2d 1 (1990) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323,
337, 94 S. Ct. 2997, 3005, 41 L. Ed. 2d 789 (1974)) (internal quotations
omitted). Generally, candidates for office are public figures. Id. at 344, 94
S.Ct. at 3009, 41 L.Ed.2d at ___ (stating: “An individual who decides to seek
governmental office must accept certain necessary consequences of that
involvement in public affairs. He runs the risk of closer public scrutiny than
might otherwise be the case”).
All public figures must establish the alleged defamatory statement was
false and the defendant made the statement with actual malice. American
Future Systems, Inc. v. Better Business Bureau of Eastern
Pennsylvania, 592 Pa. 66, 91-92, 923 A.2d 389, 404 (2007), certiorari
denied, 552 U.S. 1076, 128 S. Ct. 806, 169 L. Ed. 2d 606 (2007); Tucker,
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supra, at 624-25, 848 A.2d at 129-30. Actual malice exists where a
defendant makes a defamatory statement “with knowledge that it was false
or with reckless disregard of whether it was false or not.” Id. at 624, 848
A.2d at 129 (quoting New York Times v. Sullivan, 376 U.S. 254, 279-80,
84 S. Ct. 710, 726, 11 L. Ed. 2d 686 (1964)). “The requirement that the
plaintiff be able to show actual malice by clear and convincing evidence is
initially a matter of law.” Tucker, supra at 626, 848 A.2d at 130 (citing
Milkovich, supra).
The meaning of terms such as actual malice—and, more
particularly, reckless disregard—…is not readily captured in
one infallible definition. Rather, only through the course of
case-by-case adjudication can we give content to those
otherwise elusive constitutional standards. … Most
fundamentally, …“[j]udges as expositors of the
Constitution,” have a duty to “independently decide
whether the evidence in the record is sufficient to
cross the constitutional threshold that bars the entry
of any judgment that is not supported by clear and
convicting proof of ‘actual malice.’”
Tucker, supra at 626, 848 A.2d at 131 (quoting Harte-Hanks Commc’ns,
Inc. v. Connaughton, 491 U.S. 657, 686, 109 S. Ct. 2678, 2695, 105
L. Ed. 2d 562 (1989)) (emphasis in original).
To survive preliminary objections in the nature of a demurrer, a
plaintiff must plead sufficient allegations of actual malice. Tucker, supra at
635, 848 A.2d at 136. The plaintiff must plead the defendant had
unequivocal notice that the statement was false. Id. at 630-32, 848 A.2d at
133-36. Additionally, the plaintiff must also plead the defendant knew the
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statement was false or made the statement with reckless disregard to its
falsity. Id. at 624, 848 A.2d at 129. “A showing of a reckless disregard for
the truth…requires more than a departure from reasonably prudent conduct.
Failure to check sources, or negligence alone, is simply insufficient to
maintain a cause of action for defamation.” Id. at 634, 848 A.2d at 135
(quoting Harte-Hanks, supra at 688, 109 S. Ct. at 2696, 105 L.Ed.2d at
___) (internal quotations omitted).
The [United States] Supreme Court has emphasized that
the question of whether a statement has been published
with reckless disregard of falsity is not measured by
whether a reasonably prudent [person] would have
[published], or would have investigated before publishing.
Rather, [t]here must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious
doubts as to the truth of the publication. Thus, while
recklessness may be found where there are obvious
reasons to doubt the veracity of the informant or the
accuracy of his reports, it simply cannot be concluded that
a defendant entertained the requisite doubt as to the
veracity of the challenged publication where the
publication was based on information a defendant could
reasonably believe to be accurate.
Tucker, supra at 634, 848 A.2d at 135-36 (quoting Curran v.
Philadelphia Newspapers, Inc., 497 Pa. 163, 179-80, 439 A.2d 652, 660
(1981)).
Under Pennsylvania law, invasion of privacy includes several torts, one
of which is publicity that unreasonably places another in a false light before
the public, or simply, false light. Burger v. Blair Medical Associates,
Inc., 600 Pa. 194, 964 A.2d 374 (2009) (citing Restatement (Second) of
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Torts §§ 652B-E). The Restatement sets forth the elements of false light as
follows:
§ 652E. Publicity Placing Person In False Light
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. Under this section, “publicity”
means “the matter is made public, by communicating it to the public at
large, or to so many persons that the matter must be regarded as
substantially certain to become one of public knowledge.” Id. at § 652E,
Comment A; Burger, supra at 204-204, 964 A.2d at 379-80 (noting
publicity element requires that matter is made public to so many people that
matter is substantially certain to become one of public knowledge). “Thus, it
is not an invasion of the right of privacy…to communicate a fact concerning
the plaintiff’s private life to a single person or even to a small group of
persons.” Restatement (Second) of Torts § 652E, Comment A. The plaintiff
must also establish the publicity given to him is such that a reasonable
person would feel seriously aggrieved by it. Id. at § 652E, Comment C.
Furthermore, under Section 652E, the publication must be false. Id. at §
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652E, Comment A. The publication must also be a major misrepresentation
of a person’s character, history, activities, or beliefs which could cause a
reasonable person to take serious offense. Id. at § 652E, Comment C.
Instantly, Appellants’ defamation and false light claims stem from two
letters Appellees sent to the Beaver County Board of Elections, Bureau of
Elections, and District Attorney’s Office. Appellants attached the Letters to
their complaint as exhibits. In the September 9th letter, Appellees alleged
the Committee failed to comply with statutory campaign contribution
reporting requirements and requested an investigation into the Committee’s
2013 campaign financing. In the September 17th letter, Appellees explained
Mr. Fitzgerald and Ms. Sivy were candidates for office during the 2013
municipal election. Appellees stated the candidates’ campaign materials had
the same identification numbers as those the Committee deployed.
Appellees indicated Mr. Fitzgerald and Ms. Sivy did not file campaign finance
reports. In the letter, Appellees concluded the candidates violated statutory
campaign finance reporting requirements.
As to whether the Letters are incapable of a defamatory meaning, the
trial court reasoned as follows:
[Appellees] only sent letters including the statements in
question to the [Beaver County] Board of Elections, the
Beaver County Bureau of Elections, and the Beaver County
District Attorney. The [L]etters served as formal
complaints expressing concern that [Appellants] had
potentially failed to disclose necessary campaign finance
expenditures.
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* * *
[Appellees]…expressed their concerns to the proper body
for investigating such concerns. … [Appellees] did not
publish these statements widely, but, instead, sent them
to the officials charged with investigating these types of
claims. The audience hearing the remarks was apprised of
possible election code violations, and urged to look into the
allegations.
Moreover, the statements were not bold assertions of
[Appellants] breaking the law, but arguments that could
lead to such a conclusion. For example, [Appellants]
allege that [Appellees] stated [Appellants] “failed to
disclose all monies spent in the 2013 primary election in
Economy Borough.” The full sentence of the letter actually
states, “Clearly, the evidence provided in this
complaint…will conclude [the Committee’s] expenditures
filed in the 30-day post primary campaign finance report
failed to disclose all monies spent in the 2013 primary
election in Economy Borough, PA.” Read in full, the
statement is not an accusation, but a conclusion to be
reached in light of the supporting evidence provided.
Also, [Appellees] filed the [Letters] in their capacities as
[c]hairmen of two Democratic [c]ommittees, stating they
believed it was apparent to them that [the] Committee
“has not disclosed accurate expenditures, in kind
contributions or total contributions.” This was their
opinion.
Finally, with respect to the allegation that [Mr. Fitzgerald
and Ms. Sivy] “broke the law,” it is true that if they failed
to file campaign finance reports, then they would be in
violation of campaign finance reporting laws. With respect
to this allegation, [Appellees]…ask[ed] the appropriate
officials to investigate the matter. This complaint is
separate from allegations against the [Committee].
When the statements [Appellants] complain about are
considered in their full context, [the court] believe[s] the
statements are not capable of a defamatory meaning. As
a matter of law, the [c]ourt will sustain [Appellees’]
preliminary objections and dismiss [Appellants’]
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defamation claim against them.
(Trial Court Opinion, filed January 20, 2016, at 4-7) (internal citations
omitted). Regarding Appellants’ false light claim, the trial court said:
To determine the offensive nature of the statement in
question in the instant case, we must again consider the
context in which they were made. The statements were
made in [letters] to the individuals responsible for
investigating such complaints. When read in their entirety,
the statements contained the opinions of [Appellees] and
the [L]etters included documentation and evidence to
support those opinions. Accordingly, considering their
entire context, we find that these statements are not
highly offensive to a reasonable person.
(Id. at 8). We respectfully disagree with the court’s conclusion here.
In the Letters, Appellees requested that authorities investigate
Appellants’ purported failure to comply with the Election Code, the violation
of which is a misdemeanor punishable by fine or imprisonment. See 25 P.S.
§§ 3545, 3550, supra. Appellees imputed criminal activity to Appellants.
See Restatement (Second) of Torts § 571, Comment C, supra. To the
extent Appellees implied or expressed that Appellants engaged in criminal
activity, Appellees’ statements are capable of a defamatory meaning.4 See
Marcone, supra (stating statements which impute commission of crime are
capable of defamatory meaning as matter of law). Accordingly, the trial
____________________________________________
4
Our decision that the statements in the Letters are capable of a defamatory
meaning renders moot Appellants’ second issue concerning the preservation
of Appellees’ position that their statements are incapable of a defamatory
meaning.
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court erred when it determined the Letters are not capable of a defamatory
meaning, as a matter of law.
Nevertheless, Appellants’ pleadings expressly demonstrate they are
public figures. Appellants alleged they were active in their community and
local politics and were members of the Committee until October 2013. (See
Appellants’ Complaint at ¶¶ 11, 15.) Appellants also pled that during the
2013 municipal elections, Mr. Fitzgerald was a candidate for mayor of
Economy Borough, Ms. Sivy was a candidate for tax collector of Economy
Borough, and Mr. Lapinski served as treasurer of the Committee. (See id.
at ¶¶ 13, 14, 16.) Through their activity in the community and participation
in politics, Appellants were public figures. See Milkovich, supra; Gertz,
supra. As public figures, Appellants were required to establish in their
complaint facts which demonstrate Appellees’ statements were false and
made with actual malice. See Tucker, supra.
In their complaint, Appellants baldly averred Appellees’ statements
were false. (See Appellants’ Complaint at ¶ 57.) Appellants similarly
concluded Appellees made the statements knowing they were false or with
reckless disregard to their falsity. (See id. at ¶ 58.) Appellants, however,
failed to plead any facts to support either assertion. Appellants also failed to
plead and attach relevant documents to show Appellees unequivocally were
on notice that their statements were false or made with reckless disregard
for their falsity. See Tucker, supra. Therefore, Appellants failed to plead
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the elements of falsity and actual malice. See id.; Lerner, supra;
Clemleddy, supra. Likewise, Appellants were required to plead adequate
facts concerning Appellees’ alleged abuse of a conditional privilege. See 42
Pa.C.S.A. § 8343(a)(7), supra. Appellants’ single conclusory averment that
Appellees did not have privilege to make their statements is inadequate.
(See Appellants’ Complaint at ¶ 59.) See also Lerner, supra. Accordingly,
Appellants’ defamation claim was legally insufficient.
Regarding Appellants’ false light claim, Appellants alleged in their
complaint that Appellees sent the Letters to three Beaver County entities:
the Board of Elections; Bureau of Elections; and District Attorney’s Office.
Appellants averred Appellees told other unnamed individuals in Economy
Borough and Beaver County about Appellees’ accusations. Appellants also
alleged Mr. Vranesevich published on his website several articles about
Appellees’ letters. Appellants, however, failed to plead Appellees were
responsible for the Internet commentary on Appellees’ letters. Appellants’
allegation that Appellees told “others” does not make out the widespread
publicity necessary to support a false light claim. (See Appellants’
Complaint at ¶¶ 18, 31.) Appellants failed to plead that Appellees
disseminated their statements to the public at large to make the statements
a matter of general knowledge. See Burger, supra; Restatement (Second)
of Torts § 652E, Comment A, supra. Thus, Appellants’ claim for false light
against Appellees was legally insufficient as well.
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Regarding Appellants’ third issue on Appellees’ use of official
letterhead of the Beaver County Democratic Committee, the trial court
reasoned as follows:
The letters in question were sent on official letterhead and
signed by [Appellees] in their capacity as chairmen of
these respective committees. Although it was alleged that
the letters were sent without consent or
authorization…[Appellants] never alleged that [Appellees]
needed consent or authorization from [the Beaver County
Democratic Committee] before sending letters. …
(Trial Court Opinion, filed May 11, 2016, at 4) (internal citation to record
omitted). The record supports the trial court’s rationale. Appellants failed to
plead in their complaint or argue on appeal that consent or authorization
was required by law. Moreover, even if Appellees sent the Letters in an
official or individual capacity, the outcome of this case remains unchanged.
Therefore, Appellants’ third issue merits no relief. Accordingly, we affirm the
trial court’s order sustaining Appellees’ preliminary objections and dismissing
Appellants’ defamation/false light complaint with prejudice. See Divine v.
Hutt, 863 A.2d 1160, 1170 (Pa.Super. 2004) (stating where trial court has
reached correct result, this Court may affirm its decision on alternative
basis).
Order affirmed.
President Judge Emeritus Bender joins the memorandum.
Judge Moulton concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
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