HomeMy WebLinkAbout2004-4155 Civil
CLINTON BARKDOLL and, : IN THE COURT OF COMMON PLEAS
DOUGLAS TENGLER : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. :
:
VALLEY HOUSING :
DEVELOPMENT CORPORATION, :
Defendant : NO. 04-4155 CIVIL ACTION
ORDER OF COURT
AND NOW
, this 6th day of July, 2007, upon consideration of the Motion for Summary
Judgment by Defendant Valley Housing Development Corporation and Plaintiffs’ Response
thereto, and oral argument;
IT IS HEREBY ORDERED AND DIRECTED
that the Defendant’s Motion for
GRANTED
Summary Judgment is .
By the Court,
M. L. Ebert, Jr., J.
Andrew M. Calvelli, Esquire
Attorney I.D. #79112
175 Strafford Avenue
Suite One, PMB 401
Wayne, PA 19087
(610) 983-3204
Attorney for the Plaintiffs
Steven E. Grubb, Esquire
Attorney I.D. # 75897
David M. Steckel, Esquire
Attorney I.D. #82340
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for the Defendant
CLINTON BARKDOLL and, : IN THE COURT OF COMMON PLEAS
DOUGLAS TENGLER : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. :
:
VALLEY HOUSING :
DEVELOPMENT CORPORATION, :
Defendant : NO. 04-4155 CIVIL ACTION
IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
BEFORE BAYLEY AND EBERT, J.J.
OPINION and ORDER OF COURT
EBERT, J., July 6, 2007.
In this civil case, Plaintiffs Clinton Barkdoll and Douglas Tengler allege that in
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November 2003, Defendant Valley Housing Development Corporation (hereinafter “VHDC”)
created and published a press release which defamed them. Defendant now requests Summary
Judgment contending that Plaintiffs have not met their burden of proof in establishing the press
release’s defamatory potential nor have Plaintiffs shown that Defendant expressed actual malice
in releasing the published statement. Having considered the nature of the press release in light of
the applicable law, Defendant’s Motion for Summary Judgment is granted.
STATEMENT OF FACTS
This case revolves around an allegedly defamatory November 11, 2003, press release
which pertained to an ongoing and public disagreement between Waynesboro Borough Council
(hereinafter, “the Borough”) and VHDC over the need for affordable housing in the community.
During the spring of 2003, Defendant informed the Borough of its intentions to erect an
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Defendants remark in their Answer that the proper name of Defendant is “Valley Community Housing
Corporation.” As the name on the docket caption is “Valley Housing Development Corporation,” we shall address
Defendants as such but accept both names as referring to the same entity in this case alone.
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affordable housing development in the community (approximately 22 units). In accordance
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with the typical loan process of Pennsylvania Housing Finance Agency (PHFA), Defendants
submitted an independent market study to the Borough in order to demonstrate the community’s
need for the new housing project. After reviewing the study, the Borough advised Defendant
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that it thought the market study was flawed, that Valley Housing was improperly formed, and
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that Defendant may have improperly obtained state and federal funding. At a public meeting,
the Borough Council voted to authorize legal action against the Defendant based upon these
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concerns if the issues were not adequately addressed. Plaintiffs Barkdoll and Tengler (who at
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all times were elected or appointed representatives serving on the Borough Council) assert that
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they informed VHDC of the potential legal action.
In an effort to respond to this public threat of legal action or in order to inform the public
of these community-related issues, Valley Housing, through its public relations firm, former-
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Defendant Hershey Philbin, issued the allegedly slanderous press release which is now at issue.
The press release was issued as follows:
2
Pl.’s Compl., filed Aug. 20, 2004, ¶ 6 (hereinafter Compl. ¶__); Answer of Defs. Valley Housing Development
Corporation with New Matter, filed May 13, 2005, ¶ 1 (hereinafter Answer ¶ __).
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Compl. ¶ 7; Answer ¶ 7.
4
Compl. ¶ 9-10; Def. Ex. C.
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Plaintiffs alleged that VHDC was fully or almost fully controlled by the Franklin County Housing Authority, a
government agency, as opposed to a non-profit private entity. They claimed that Valley Housing had been
approved for various state and federal funding because it had held itself out as a private non-profit corporation, thus
permitting it to qualify for state and federal agency funding. See Compl. ¶ 12-15. See also Answer ¶¶ 16-17
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Barkdoll Dep. 49; Def. Ex. E.
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Compl. ¶ 5; Answer ¶ 5.
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Compl. ¶ 18; Defendant’s deny that they were informed of any impending legal action. See Answer ¶ 18. What is
clear is that this legal suit was brought in response to the press release and not to any other outstanding
issues/concerns between the parties.
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Plaintiffs claim that the release came in response to the threat of legal action pertaining to the outstanding concerns
regarding funding and the market study. See Compl. ¶ 19-20; Defendant’s claim that the release was issued only to
inform the public and to invite public debate on the actions that the Council had taken. See Answer ¶ 19.
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BOROUGH CONTINUES TO HARASS VALLEY HOUSING
Board Chairman says, “I just don’t understand why elected officials would work
to deny hardworking citizens their civil right to affordable housing”
(Chambersburg, PA) – Ben Newcomer, chairman of the board of directors of Valley Housing
Development Corporation (VHDC), said today VHDC is considering requesting copies of ethics
filings made by specific Borough Councilmen to provide insight into possible motives behind
repeated baseless accusations made against the organization.
“We simply don’t understand why elected officials would continue to harass our organization
and work to deny decent, hardworking citizens affordable housing made possible under federal
programs and with state and private financing,” Newcomer said.
On September 25, the Borough filed an administrative complaint with both the Pennsylvania
Department of Community and Economic Development (DCED), and the Department of
Housing and Urban Development (HUD), against VHDC accusing the organization of violating
Federal Regulations requiring 1/3 board representative from low-income representatives. The
Borough also accused VHDC of breaching their bylaws by not conducting monthly meetings.
VHDC responded with a complete explanation and great detail refuting the allegations.
Thereafter, in a response letter from DCED to Douglas Tengler, President of the Waynesboro
Borough Council, DCED states, “we have reviewed the contents of both this letter and the
rebuttal from VHDC and determined that the Corporation had met the minimum requirements.”
The letter, written by Scott Dunwoody as Chief of Community Development Operations goes
on to explain to the Borough that, “the composition of a CHDO Board may change resulting in
less than the required percentage of low income representation, however, within a reasonable
amount of time, the required representation must be achieved again. As for the frequency of
meetings and the by-laws, this is a local determination and not something DCED would become
involved in.”
The letter also referenced a further notification from HUD’s Inspector General Office to the
Borough that the questioning of the eligibility of a CHDO is a programmatic issue and therefore
will not be pursued by HUD.
According to Newcomer, the accusations in the administrative complaint letter filed by the
Borough were baseless – and obviously so.
“The Borough goes so far as to accuse our organization of failing to ‘establish a Resident
Advisory Council for the purpose of advising the Valley Housing Board on various matters
regarding the proposed development.’ Our question to the Borough is, how do you form a
Resident Advisory Council when you don’t have an apartment complex built yet, must less
tenants who live in it?”
Newcomer is irritated by Borough officials who have continually tried to discredit not only
VHDC, but also the Franklin County Housing Authority on whose land the project will be built.
“We have followed all the Borough’s laws, ordinances and procedures to develop this
affordable housing complex. They attacked the validity of a market research study and continue
to do so after the research firm and state authorities responsibly determined the research was
indeed valid, and demonstrated a definite need for affordable housing in the Waynesboro
community. The research clearly proves that there are citizens – hardworking, taxpaying,
voting citizens in Waynesboro – who are entitled under state and federal law to affordable
housing.”
Newcomer also announced that a letter was sent by VHDC to Borough Manager Lloyd
Hamberger on October 20, 2003, requesting information regarding any market study for any
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proposed housing development requested by, filed with or presented to the Borough of
Waynesboro, Borough Council or Planning Commission.
“The response letter from Mr. Hamberger states, ‘to the best of our knowledge and belief, we
have not received any market studies for any currently proposed housing development (except
those which the VHCD has submitted). In addition, to the best of our knowledge and belief, the
Borough of Waynesboro, Borough Council or Borough Planning Commission have not received
any market studies for any housing developments that have been proposed in recent past’”
“We simply can’t figure out why Borough Councilmen have singled out an organization that
provides safe, quality, affordable housing to residents in our community. Is it because they have
determined in their judgment that the citizens of Waynesboro do not merit affordable housing
under state and federal law? Is it because the Borough prefers “high-end” residential
development such as in now in progress? Is it because Mr. Tengler and Mr. Barkdoll are
privately involved in the real estate business? I think it’s time the people of Waynesboro begin
to ask some of these questions.”
VHCD learned orally last week that, at the Borough’s Council meetings, Councilmen voted to
authorize additional legal action against plans for the project. Mr. Tengler would not elaborate
on the specifics of the legal action that they will be taking against VHDC because he did not
want to disclose strategy. VHDC is again requesting a formal expansion.
“What now,” asks Newcomer, “What will a frivolous lawsuit cost the taxpayers of
Waynesboro? One hundred and fifty thousand dollars? Two hundred thousand dollars? For
what purpose?
“Neither Mr. Tengler or Mr. Barkdoll will serve on the council after next month because neither
ran for reelection,” Newcomer said. “Therefore, the costs of a questionable lawsuit they are
instigating the Borough to file will fall to other council members to defend and raise taxes to
pay for next year.”
“I just don’t understand why publicly elected officials would behave this way. It’s an insult to
the people of Waynesboro. I don’t know the answer to my many questions, but I have ever right
to ask these questions of public officials,” Newcomer said.
Newcomer said that, under the Right-to-Know law, Valley Housing’s Board of Directors are
considering filing a formal request to review the ethics contracts of both Mr. Tengler and Mr.
Barkdoll so that the public can determine for itself if they are conforming to the ethical and
constitutional requirements of their oath of office.
“We will continue to fight to provide affordable housing to the hardworking families within our
community. If the Borough wants to continue to incur costs in an attempt to still this project, we
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will continue to defend our organization, mission, and vision,” Newcomer added.
Plaintiffs now contend that the press release was defamatory in that Defendant’s
statements in the press release were knowingly false statements which touched upon the
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Plaintiff’s business reputation as public servants.
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Def. Ex. B
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Compl. ¶ 23 -24
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DISCUSSION
I. Summary Judgment
According to Pa.C.S.A. 1035.2, after the proper pleadings have occurred, a party may
move for summary judgment in two instances:
(1) Whenever there is no genuine issue of any material fact as to a necessary
element of the cause of action or defense which could be established by additional
discovery or expert report, or
(2) If, after the completion of discovery relevant to the motion, including the
production of expert reports, an adverse party who will bear the burden of proof at
trial has failed to produce evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be submitted to a jury.
When a party seeks summary judgment, the court shall enter judgment only if there are
no genuine issues of material fact as to a necessary element of the cause of action or defense that
could be established by additional discovery. Santorella v. Donegal Mut. Ins. Co., 905 A.2d
534, 535 (Pa. Super. 2006). An issue is material, for purposes of a summary judgment motion, if
its resolution could affect the outcome of the case under the governing law. Farabaugh v.
Pennsylvania Turnpike Com'n, 911 A.2d 1264, (Pa. 2006). The record must at all times be
reviewed in the light most favorable to the non-moving party, and any doubts as to the existence
of genuine issues of material fact must be resolved against the moving party. Stephens v. Paris
Cleaners, Inc., 885 A.2d 59, 63 (Pa. Super. 2005).
II. Defamation: Applicable Law
In order for a Plaintiff who is a public official to be successful in a defamation action, he
must show (1) that the communication at issue is actionable; (2) that the communication satisfies
the statutory elements of defamation; and (3) that the Defendant acted with actual malice. In this
case, Plaintiff has failed to satisfy any of the three factors and therefore Defendant’s Motion for
Summary Judgment is granted.
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A. The Press Release Constitutes a Pure Opinion and Is Therefore Not Actionable
Certain types of communications, regardless of their offensive nature, are not actionable.
“‘Pure opinion’ is based on disclosed facts and is non-actionable. Opinion that is not based on
disclosed facts is ‘mixed opinion,’ comprising factual statements that surpass mere expressions
of opinion. ‘Mixed opinion’ implies the existence of undisclosed facts and is therefore
actionable.” Rockwell v. Allegheny Health, Educ. & Research Foundation,19 F. Supp.2d 401,
406 (E.D.Pa.1998).Pennsylvania courts have adopted Section 566 of the Restatement (Second)
of Torts as an aid in determining the difference between a “pure” and “mixed” opinion.Green v.
Mizner, 692 A.2d 169, 174 (Pa. Super. 1997).
“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.”
Restatement (Second) of Torts § 566(c)(emphasis added).
While the wording in the press release at issue is strong, there is nothing to suggest that
the article is a “mixed” opinion based upon undisclosed factual information. Rather, the
expressed opinions are sufficiently supported through factual disclosures made within the
statement itself.
Plaintiffs’ strongest argument pertaining to the “mixed opinion” status of the press
release is that the language regarding Plaintiff’s supposed private involvement in the real estate
business is based on undisclosed facts - thereby making the release an actionable, mixed opinion.
We disagree. In paragraph 13 of the release, Newcomer poses various questions as to why the
Borough disapproved the projected housing plan. He states, “We simply can’t figure out why
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Borough Councilmen have singled out an organization that provides safe, quality, affordable
housing to residents of our community…Is it because Mr. Tengler and Mr. Barkdoll are privately
involved in the real estate business?” While it is true that there is no direct, factual basis
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established in the article as to the involvement of the Plaintiffs in the real estate business, the
information is posed as a question, which does not in and of itself suggest that the assertion is
factual. In fact, the interrogatory statement does not even constitute an “opinion” in the general
sense of the word. Such a statement would certainly not cause the general public to assume that
the officials were attempting a disservice to the entire Waynesboro community.
A contextual analysis of the portion at issue supports the proposition that Newcomer was
not offering his opinion, but rather was merely challenging the people to question the choices of
their elected officials and responding to the allegations made against VDHC. Before asking
whether or not Plaintiffs had a private stake in the real estate business, Newcomer asked, “Is it
because [the Borough Councilmen] have determined in their judgment that the citizens of
Waynesboro do not merit affordable housing under state and federal law?” Obviously, the
Borough seeks to provide affordable housing for Waynesboro citizens as part if its official duty.
Considering the context of Newcomer’s statements, one can logically deduce that Newcomer
was not stating the question pertaining to the real estate involvement matter-of-factly, but rather
was making an exaggerated request for an explanation as to why the project had not been
approved. In fact, Newcomer follows his question regarding the real estate involvement with the
statement, “I think it’s time the people of Waynesboro begin to ask some of these questions.”
Such language is not aimed at defaming the officials themselves; rather, the question was posed
for rhetorical effect. Newcomer’s strong use of rhetoric is typical of one who is attempting to
influence the public to become more informed and contact their community representatives.
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Evidence reveals that both Plaintiffs were in some way connected to the real estate business. Mr. Barkdoll as an
attorney was involved in representing multiple real estate agents and brokers, Barkdoll Dep. pp. 11-12, 14 -16 & 18,
while Mr. Tengler owned at least 8 rental properties in Waynesboro within a 1-1 ½ miles from the anticipated
project. Tengler Dep. Ex. 1; Tengler Dep. p. 107.
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Plaintiffs also argue that the allusion to “ethics contracts” suggests that the Plaintiffs are
not acting ethically and that the alleged ability to request ethics contracts under the “Right-to-
Know” law is factually unfounded. Such a contention is without merit. Newcomer admitted in
his deposition that by stating “ethics filings” he was referring to the “Statement of Financial
Interests” which elected officials or committee members must file every year. Newcomer
Deposition p. 83. According to the Public Official and Employee Ethics Act, “Each public
employee and public official of the Commonwealth shall file a statement of financial interests for
the preceding calendar year with the department, agency, body or bureau in which he is
employed or to which he is appointed or elected…” 65 Pa. C.S. § 1104(a). In paragraph 18 of
the release, Mr. Newcomer says that the VHDC is considering filing a formal request in order to
obtain documents which might provide further insight into the basis of the Borough’s decision.
Essentially, the language conveys only that VHDC was contemplating an investigation to see if
Borough Council members were acting in Waynesboro’s best interest or if their own financial
interests were influencing their judgment.
This statement, as opposed to the stark criminal allegations made in the Green case,
makes no suggestion that Plaintiffs were in fact acting unethically. The public has access to
these documents and has a right and duty to consider the ethical behavior of their elected
officials. There is nothing hidden about the statement; it suggests only that the Borough Council
must have reasons for denying the project and that the citizens of Waynesboro should look into
the basis for the denial.
B. Plaintiff Has Failed to Satisfy the Statutory Elements of Defamation
Even if the statement were actionable, Plaintiffs fail to prove the defamatory nature of the
communication. 42 Pa.C.S.A. § 8343(a) provides that in an action for defamation, the plaintiff
has the burden of proving all of the following elements: (1) The defamatory character of the
communication; (2) Its publication by the defendant; (3) Its application to the plaintiff; (4) The
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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; and (7) Abuse of a conditionally privileged occasion. While the statute requires a
plaintiff to prove all of the above, we will only discuss those which are clearly legally deficient.
1. Defamatory Character and Recipient Understanding
Plaintiffs’ arguments as to the defamatory nature of the press release rely heavily on
Green v. Mizner. In Green, Defendant wrote a letter to the Pennsylvania Attorney General
requesting a criminal investigation of the Plaintiff, Green, who was Councilman running for
Mayor of Dubois, Pennsylvania. The letter, sent out two weeks before the election, accused
Green of violating criminal and civil statutes, and called into question his personal and
professional reputation. A copy of this letter was then (apparently at or about the same time)
forwarded by Mizner to a newspaper for publication. The letter was also sent to local radio
stations to be freely broadcasted. Neither the newspaper nor the radio stations published the
letter verbatim, but excerpts regarding the criminal accusations made in the letter were still
published and quoted.
The Green court found that the letter was defamatory because the factual statements
surpassed mere expressions of opinion and implied the existence of undisclosed facts. The Court
additionally found that the letter was capable of two interpretations and that the average citizen
reading the letter may become enraged by the content of the letter. Because the two
interpretations existed, the Court found that the question of the defamatory nature of the letter
should be placed before a jury. See Green v. Mizner, 692 A.2d 169 (Pa. Super. 1997).
We find the case at bar distinguishable from Green. While the factual background of the
cases is similar, the nature of the documents and allegations is distinct. The letter submitted in
Green did more than merely suggest self interest on the part of the Councilman – it stated a
criminal allegation in plain terms as if there were undisclosed information which would prove
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such charges. It also stated that the Councilman’s allegedly illegal behavior took place without
of the knowledge of the other City Council members. Harsh and unfounded accusations were
made and subsequently quoted by the media – inciting the public to believe the defaming
statements during a period immediately before Green’s mayoral election. It appears that the
request for an investigation was used as a basis to make criminal allegations in the media during
this critical election period. Essentially, the Defendant in Green used the letter requesting an
investigation as a weapon against the Plaintiff who was running for election. Such is not the case
at bar.
In the current case, the release is not being used as a weapon against the Borough
Council. Rather, the statements were being made in response to public accusations made against
the Defendant, who had been accused of obtaining improper funding, violating Federal
regulations, and improper collusion with the Franklin County Housing Authority. The
statements also expressed frustrations as to the disapproval of the project after the Defendant had
complied with all of the requests of the Borough.
Significantly, neither Plaintiff disagrees with the pertinent factual content in the release,
but rather with insignificant facts of no comprehensive importance to the overall message of the
release. The vast majority of the complaints stem from technicalities and word choices which
reflect poorly upon their community reputation. Examples of these technicalities include: The
fact that Barkdoll was referred to as an elected official as opposed to an appointed official, the
objection to the Board’s behavior being described as “harassment,” and the characterization of
certain public, financial documents as being “ethical filings.” Barkdoll Dep. pp. 29-35; Tengler
Dep. p. 72. In comparison to the blatant accusations of illegal activity made in Green, word
choices, in the context of promoting public debate, would, in this Court’s opinion, have little
effect upon the general community’s opinion of their public officials personal reputations.
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Beyond Plaintiff’s objections to technicalities and word characterization, the remaining
portions of the release do not constitute defamatory communication. Plaintiffs do not disagree
that the Borough disapproved of the market study or that the Borough Council publicly accused
VHDC of violating by-laws and federal regulations – these factual assertions form the basis of
Newcomer’s published response. The included accusations posed by Newcomer against the
Borough do little more than convey his frustration as to the disapproval of what is in his opinion
a very important project.
2. Conditional Privilege
A conditional privilege to issue defamatory communications traditionally extends to
communications about matters of public concern, Baami v. Dimson, 310 A.2d 298 (Pa. Super.
1973), and to communications that criticize public officers and candidates. Muldrig v. Wilkes-
Barre Times, 64 A. 636, 637 (Pa. 1906)(Criticism ofthe official conduct of a public officer is
always a proper subject for public discussion and information. If communication is privileged it
must be made upon proper occasion, through proper motives, upon reasonable cause, and made
in the proper manner.); See also Restatement of Torts §607 (The privilege of criticism, stated in
§ 606 [permitting certain criticisms of public matters, even if defamatory], includes a privilege to
criticize the public conduct of all officers or employees of the United States, a State or Territory
thereof, or a municipal corporation of a State or Territory, and all candidates for such office and
applicants for such employment in so far as the conduct of such officer, employee or candidate is
a matter of public concern to those to whom the criticism is published.”)
Even if the statement were actionable and defamatory, Defendant’s statement is
protected by privilege. Plaintiffs are clearly public officers within the community and the
content of the article pertains to an issue of importance to the community – in this instance
affordable housing. Because the statements pertained to public matters and public officials,
they are thereby permissible in context of this factual situation - even if they had been
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defamatory in nature, which we do not believe them to be. The motive for the statements was
also proper, considering the allegations made against VHDC and the denial of their proposal
despite their efforts to comply with the Borough Council’s requests.
C. Plaintiffs Have Not Established the Presence of Actual Malice.
Even if Plaintiffs had satisfied the required elements of defamation, they have failed to
establish the presence of Defendant’s actual malice. The United States Supreme Court has held
that where the plaintiff in a defamation action is a public figure or public official, that plaintiff
must prove, inter alia, that the defendant published the statement with actual malice. Actual
malice is established where the defendant made the statement “with knowledge that it was false
or with reckless disregard of whether it was false or not.” Norton v. Glenn, 860 A.2d 48, 50 (Pa.
2004), citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1
(1990). See also Curtis Pub. Co. v. Butts, 388 U.S. 130, 153 (1975) (“[O]fficials were permitted
to recover in libel only when they could prove that the publication involved was deliberately
falsified, or published recklessly despite the publisher's awareness of probable falsity.
Investigatory failures alone were held insufficient to satisfy this standard”).
It should be duly noted that the actual malice standard is “a rigorous, if not impossible,
burden to meet in most circumstances.” Manning v. WPXI, Inc.886 A.2d 1137, 1143 (Pa.
Super. 2005), citing Weaver v. Lancaster Newspapers Inc., 875 A.2d 1093, 1103 (Pa. Super
2005) (McCaffery, J., concurring). In fact, the actual malice standard extends so far as to deny
defendant liability even in such circumstances as where he negligently publishes false,
defamatory statements about a public figure or public official. Norton, 860 A.2d at 56.
We need not spend much time discussing why the press release at issue does not contain
actual malice. In light of the previous analysis, it suffices to say that no evidence has been
produced to suggest that Mr. Newcomer was deliberately falsifying information nor doubting
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the truthfulness of his statements. In fact, neither Plaintiff has made any suggestion that the
release was done with a reckless disregard for the truth. Rather, the assertions of defamation are
heavily based in trivial word choices. After considering the language of the release in context,
logic dictates that Defendant, in releasing the statement, was merely responding, as is permitted
by the First Amendment, to the decisions made by local officials. Therefore, this Court is not
convinced that Defendant possessed the requisite actual malice in publishing the statement.
CONCLUSION
Having considered the evidence and testimony of the parties, this Court holds that the
communication at issue is not an actionable, mixed opinion, and that even if it were, Plaintiffs
have failed to meet their burden of satisfying the requisite elements of defamation. We
additionally find that such statements as issued in the press release are permitted under
conditional privilege.
This Court further finds that even if the Plaintiffs had established that the communication
was actionable, satisfied the elements of the defamation cause of action, and shown the
statements were not privileged, Plaintiffs failed to establish that Defendant acted with actual
malice in publishing the allegedly defamatory statement against public officials. Defendant’s
motion for Summary Judgment is therefore granted.
Accordingly, the following order shall be entered:
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ORDER OF COURT
th
AND NOW
, this 6 day of July, 2007, upon consideration of the Motion for Summary
Judgment by Defendant Valley Housing Development Corporation and Plaintiffs’ Response
thereto, and oral argument;
IT IS HEREBY ORDERED AND DIRECTED
that the Defendant’s Motion for
GRANTED
Summary Judgment is .
By the Court,
M. L. Ebert, Jr., J.
Andrew M. Calvelli, Esquire
Attorney I.D. #79112
175 Strafford Avenue
Suite One, PMB 401
Wayne, PA 19087
(610) 983-3204
Attorney for the Plaintiffs
Steven E. Grubb, Esquire
Attorney I.D. # 75897
David M. Steckel, Esquire
Attorney I.D. #82340
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for the Defendant
.
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