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HomeMy WebLinkAbout99-3893 civilJOHN E. KNOWLES, JOANNE KNOWLES and BRENDAN J. KNOWLES, Plaintiffs go MARIBETH BUCHER, Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · · : NO. 99-3893 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE HOFFER, P,J., HESS, GUIDO, JJ. AND NOW, this OPINION AND ORDER OF COURT day of JANUARY, 2000, for the reasons stated in the accompanying opinion, Defendant's preliminary objections in the nature of a demurrer are DENIED. By the Edward E. Guido, J. Glen R. Davis, Esquire For the Plaintiffs David A. Baric, Esquire For the Defendant :sld JOHN E. KNOWLES, JOANNE KNOWLES and BRENDAN J. KNOWLES, Plaintiffs Vo MARIBETH BUCHER, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 99-3893 .CIVIL TERM · ' CIVIL ACTION- LAW IN RE' DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE HOFFER, P.J., HESS, GUIDO, JJ. OPINION AND ORDER OF COURT On June 25, 1999, the Plaintiffs filed the above civil action seeking damages against the Defendant on a cause of action sounding in slander. On July 13, 1999, the Defendant filed preliminary objections in the nature of a demurrer. She requests that we dismiss Plaintiff's complaint on the following grounds' 1) The alleged defamatory statement was an expression of opinion and is not actionable. 2) The statement is subject to a conditional privilege. 3) The complaint fails to allege special damages which are necessary to support an action for slander. There were other issues raised in Defendant's preliminary objections. However, these issues were not briefed and are deemed to have been abandoned pursuant to Local Rule 210-7. 99-3893 CIVIL TERM FACTUAL BACKGROUND This action was commenced by Plaintiffs John E. Knowles and Joanne Knowles on behalf of their minor son Brendan Knowles,~ (hereinafter referred to as "Plaintiff' or "Brendan"). Brendan has received numerous awards for his academic achievements.2 He is active in several community service and charitable organizations.3 As a result of his awards and achievements he was accepted as a student at the Pennsylvania State University where he began attending classes in the fall of 1999.4 On November 4, 1998, the Defendant called the Silver Spring Township Police Department to complain that the Plaintiffs' dog was loose and "pooping" on her property.5 She also told the police that she "thinks that the Knowles teenage boy was the type to take a machine gun to school and start shooting.''6 As a result of the above statement, Plaintiff alleges that he has suffered damage to his reputation,7 as well as humiliation and embarrassment.8 He also alleges that he has suffered financial detriment in the form of lost occupational and educational opportunities.9 DISCUSSION The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. For the purpose of ~ Complaint paragraph 1. Complaint paragraphs 5 and 6. Complaint paragraph 7. Complaint paragraph 8. Complaint Exhibit A. Complaint Exhibit A. Complaint paragraph 17. Complaint paragraph 21. Complaint paragraph 22. 99-3893 CIVIL TERM testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as tree all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. (citations omitted). Allegheny County v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402 (1985). Applying the above standard to the case at bar, we cannot sustain the demurrer. Statement Of Opinion. It has long been the law of this Commonwealth that statements of opinion, without more, are not actionable. Beckman v. Dunn, 276 Pa. Super 527, 419 A.2d 583 (1980). However, there are certain circumstances where communicated opinions are actionable. See Braig v. Field Communications, 310 Pa. Super 569, 456 A.2d 1366 (1983) cert. denied, 466 U.S. 970, 104 S.Ct. 2341, 80 L.Ed 2d 816 (1984). The Braig Court adopted the Restatement (Second) Torts § 566 which provides' Expression of Opinion. A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. 456 A.2d 1372.~° The Court went on to quote at length from comment b to Section 566 which sets forth two types of expression of opinion. The relevant portions of the comment as quoted in Braig are as follows: There are two kinds of expressions of opinion. The simple expression of opinion, or the pure type, occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses The Pennsylvania Supreme Court relied on Section 566 in Baker v, Lafayette College, 516 Pa. 291,532 A.2d 399 (1987). 99-3893 CIVIL TERM a comment as to the plaintiff's conduct, qualifications or character .... The second kind of expression of opinion, or the mixed type, is one 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 the opinion gives rise to the inference that there are undisclosed facts that justify the forming of the opinion expressed by the defendant... 456 A.2d 1372-1373.l~ The pure type of opinion is never actionable but the mixed type may be. Green v. Mizner, 692 A.2d 169 (Pa. Super 1997). The Green court pointed out that a portion of Comment c to Section 566 aptly summarizes the distinction as follows: 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. 692 A.2d 174. It is clear from the allegations in the complaint that the statement in this case, while clearly an expression of opinion, is of the mixed type. There were not any stated or obviously assumed non-defamatory facts upon which the opinion was based. It is clear that the opinion implies that there are undisclosed facts upon which it is based. If the policeman to whom the statement was made drew a reasonable conclusion that the derogatory opinion of Plaintiff was based upon defamatory facts, then the ~ In addition to the expression of facts upon which the opinion is based, the "pure" type of opinion can exists where it is clear that both parties to the communication know the facts upon which the opinion is based. Malia v. Monchak, 543 A.2d 184 (Pa. Commonwealth 1988). 99-3893 CIVIL TERM statement is actionable. Therefore, we cannot sustain the demurrer on the basis of the statement being merely an expression of opinion. Conditional Privilege. The Defendant points out that the alleged statement was made only to a law enforcement officer. Therefore, she argues, the statement was conditionally privileged. She further argues that it is Plaintiff's burden to prove that the privilege was abused. We do not agree. In the first instance, Plaintiff has alleged that the statement was made with the knowledge of its falsity and for a malicious purpose. Furthermore, the burden is on the Defendant to establish the existence of a privileged occasion. First Lehigh Bank v. Cowen, 700 A.2d 498 (Pa. Super 1997). 12 Once the existence of the privilege is established the burden then shifts to the Plaintiff to establish an abuse of that privilege. Id. 13 Whether the privilege is abused is a question for the jury. /d. Under those circumstances, it would not be appropriate to sustain the demurrer. Failure to Plead Special Damages. "It is a general role that defamatory words are not actionable, absent proof of special damage." Baird v. Dunn & Bradstreet., 446 Pa. 266, 274, 285 A.2d 166, 171 (1971). See also Solos.ko v. Paxton, 383 Pa. 419, 119 A.2d 230 (1956). 42 Pa. C.S.A. § 8343(a)(6). "Special damage" has been defined by our courts as "monetary or out-of- See also 42 Pa. C.S.A. § 8343(b)(2). See also 42 Pa. C.S.A. § 8343(a)(7). 99-3893 CIVIL TERM pocket loss borne by the defamation." Walker v, Grand Cenl~ral Sanitation, Inc,, 430 Pa. Super 236, 634 A.2d 237, 241 (1993). There is an exception to the general role. In cases of slander per se a Plaintiff need not establish pecuniary or economic loss. Walker v. Grand Central Sanitation, Inc., supra, 634 A.2d 237, 242. He need only establish that his reputation was actually affected by the slander or that he suffered personal humiliation. /d. See also Pelagatti v. Cohen, 370 Pa. Super 422, 536 A.2d 1337 (1988). Plaintiff alleges that the statement at issue is slanderous per se. We disagree. Slander per se is limited to statements which impute a criminal offense, a loathsome disease, business misconduct or serious sexual misconduct. Chicarella v. Passant.., 343 Pa. Super 330, 494 A.2d 1109, (1985).TM In the instant case, Defendant's alleged statement does not fall into any of those categories. While the statement expresses an opinion that Plaintiff is capable of committing a criminal offense, it does not impute that he has committed such an offense. Nor is it reasonable to believe that the unarticulated facts supporting the opinion impute a criminal offense to Plaintiff. The statements were made to a police officer in a small township where the Plaintiff is a young high school student. If he had murdered anyone, or committed any other such crime, there would have been no need for the Defendant to point it out to the police. The statement was clearly referring to her opinion as to his character or mindset and not to any criminal offenses.~s ~4 See also Restatement Torts (Second) § 570 which is referred to in Chicarelleo v. Passan~, supra. ~5 We have considered whether a mental illness which would allow someone to machine gun his classmates might be considered a loathsome disease for purposes of slander per se. We are satisfied that it cannot. Section 572 of the Restatement (Second) Torts defines the disease referred to in Section 570 as "an existing venereal disease or other loathsome and communicable disease." (emphasis added). It is questionable whether such a mental illness is a loathsome disease. However, there is no doubt that it is not communicable. 99-3893 CIVIL TERM However, even though the statement is not slanderous per se, Defendant's demurrer must still be denied. The complaint clearly alleges that the Plaintiff has sustained pecuniary loss in the form of lost occupational and educational opportunities. If he is able to prove those special damages at trial, along with the abuse of a conditional privilege and the officer's reasonable conclusion that Defendant's opinion was based upon defamatory facts, he will be entitled to recover on his claim. ORDER OF COURT AND NOW, this 24TM day of JANUARY, 2000, for the reasons stated in the accompanying opinion, Defendant's preliminary objections in the nature of a demurrer are DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Glen R. Davis, Esquire For the Plaintiffs David A. Baric, Esquire For the Defendant :sld