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HomeMy WebLinkAbout99-3893 civilJOHN E. KNOWLES, JOANNE KNOWLES and BRENDAN KNOWLES, Plaintiffs VS. MARIBETH BUCHER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW 99-3893 CIVIL IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., HESS AND GUIDO, J.J. ORDER AND NOW, this day of November, 2000, the motion of the defendant for summary judgment is GRANTED. BY THE COURT, Glenn R. Davis, Esquire For the Plaintiff ess, J. David A. Baric, Esquire For the Defendant :rlm JOHN E. KNOWLES, JOANNE KNOWLES and BRENDAN KNOWLES, Plaintiffs VS. MARIBETH BUCHER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 99-3893 CIVIL IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., HESS AND GUIDO, J.J. OPINION AND ORDER Before the court is the defendant's motion for summary judgment. The background of this case is a neighborhood dispute between the parties. The instant action, sounding in slander, arose from a telephone call made by the defendant to the Silver Spring Township Police Department on November 4, 1998. When the defendant telephoned the police department, she made a report to Detective Dale Sabadish in which she complained that the plaintiffs' dog was relieving itself on her property. At the end of the conversation, the defendant offered the following statement' "... the Knowles' teenage boy was the type to take a machine gun to school and start shooting." Plaintiffs claim that Brendan Knowles has, by virtue of this remark, suffered damage to his reputation as well as humiliation and embarrassment. He also claims a loss of occupational and educational opportunities to his financial detriment.~ ~ Nonetheless, the plaintiffs aver that, in reality, Brendan enjoys a very good reputation. He achieved academic distinction in high school and was active in various community service organizations. He has been attending Penn State University since the fall of 1999. 99-3893 CIVIL The complaint in this matter was filed on June 25, 1999. On July 13, 1999, the defendant filed preliminary objections in the nature of a demurrer. Following oral argument, the Honorable Edward E. Guido issued an opinion and order dated January 24, 2000, denying the defendant's preliminary objections. In his opinion, Judge Guido dealt with the question of whether or not the defendant's statement to Detective Sabadish was actionable. In doing so, he resorted to the test provided in Braig v. Field Communications~ 310 Pa. Super. 569, 456 A.2d 1366 (1983)cert. denied, 446 U.S. 970, 104 S.Ct. 2341, 80 L.Ed.2d 816 (1984). That decision adopted the standard from the Restatement of Torts (2nd) Section 566 entitled "Expression of Opinion" and established a distinction between pure statements of opinion and statements of opinion which imply an allegation of undisclosed defamatory facts as the basis for the opinion. The latter is known as the "mixed type" of expression of opinion. While "mixed type" expressions of opinion are generally actionable in Pennsylvania, pure expressions of opinion are not, according to the Superior Court's decision in Green v. Mizner, 692 A.2d 169 (1997). As noted in Green, the difference between the two types of opinions has to do with the effect of the statement on the recipient of the communication. Concluding that the statement made by Ms.Bucher in this case was clearly of the mixed type, Judge Guido went on to opine that "[I]f 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 statement is actionable." At the time Judge Guido ruled on the demurrer, of course, the record was silent with respect to this question as Detective Sabadish had not yet been deposed. 99-3893 CIVIL The record, for the purpose of the disposition of this summary judgment motion, now includes deposition of Detective Sabadish. In that deposition there are two portions of the testimony that are directly relevant to the issue currently before the court. MR. BARIC: What did you think of that statement when you heard it? DET. SABADISH: Not a whole lot, to be quite honest with you. Q Did you conclude this was a continuation of the name calling that had taken place? A Somewhat, yes. Q Did you conclude from that statement that Brendan Knowles actually owned a machine gun? A No. Q Did you conclude from that statement that you should contact the Cumberland Valley High School immediately? A No. Q Did you take any action to follow up on that statement? A. No, sir. Q So does that comport, Detective, with your understanding of that statement being nothing more than a continuation of the name calling? A I would agree with that, yes. Q When that statement was made to you, did you believe that there was anything known by Mrs. Bucher behind that statement, so to speak? A I did not think so. 99-3893 CIVIL Q Did you say to yourself at the time you heard this statement that she must know something about this person which she isn't telling me? A No. I thought that if there was - if this was a serious incident, it wouldn't have been in general conversation. Especially if she's originally calling me to tell me about a dog, I would think that someone, a boy with a machine gun at the high school would be the object of the complaint or the phone call, not of the dog. Therefore, I just took this with a grain of salt, if you will. (Deposition of Detective Dale Sabadish, pp. 13-15) MR. BARIC' Just one, Detective. Without reference to using defamatory anywhere in it, from your testimony, did you conclude that there were no facts to back up the statement that was made? DET. SABADISH' I would say that there was no facts. It might have been an opinion, that she thinks this was the case. It was an opinion. Q But you concluded that there were no facts to back up that statement? A That' s correct. (Id. at p. 31) It is clear from our review of Detective Sabadish's response that he, the recipient of the communication, was not led to the conclusion that the statement was based upon undisclosed defamatory facts. It would appear, therefore, that the statement is not actionable. To reach a decision on the defendant's motion, however, this court must evaluate a grant of summary judgment in accordance with the appropriate rules of civil procedure. Rule 103 5.2 is directly applicable to the circumstances in this matter: 99-3893 CIVIL After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (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. Pa.R.C.P. 1035.2. We believe that this case is more appropriately governed by the provisions of paragraph (2) above. The question is not whether there is a genuine issue of material fact but rather whether the plaintiffs have presented a prima facie case. The distinction is important with respect to the application of the so-called Nanty-Glo role. This doctrine, which arises out of the holding in Nanty-Glo v. American Surety Co,, 309 Pa. 236, 163 A. 523 (1932), stands for the proposition that ordinarily the party moving for summary judgment may not rely solely upon its own testimonial affidavits or depositions, or those of its own witnesses, to establish the nonexistence of genuine issues of material fact. This rule, in turn, flows from our understanding that questions of credibility are, in the final analysis, always for the jury. In resolving the application of the Nanty-Glo rule to the instant matter, the holding of the Superior Court in Dudley v. U.S.X. Corp., 414 Pa. Super. 160, 606 A.2d 916 (1992) is helpful. In Dudley, the court was asked to reverse the trial court' s decision to grant summary judgment to 99-3893 CIVIL the defendants based on the deposition, testimony and affidavits of its witnesses. The court faced the same argument that the plaintiffs here advance. A review of these cases demonstrates that there is an inherent 3-step process involved in determining whether the Nanty-Glo rule applies to as to preclude a grant of summary judgment. Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the jury by resolving any material issues of fact. ..Id. at 168, 606 A.2d at 920. In the Dudley case, summary judgment was granted in the case based upon the pleadings, depositions of U.S.X. personnel and decedent's co-trespassers, among other things. The court found it undisputed that the decedent, Orlando Dudley, was a trespasser on U.S.X.'s property, that he and his companions had broken into the U.S.X. facility with the purpose of stealing copper cable, that they decided to climb one of the electric transmission towers to steal copper cable, and, in order to climb the tower, had to break a steel guard designed to prevent this sort of trespass. Upon reaching a platform on the tower, Dudley contacted an energized wire and was electrocuted and died. Based on these facts, the lower court and the Superior Court found that U.S.X. breached no duty to Dudley and that summary judgment was warranted in their favor. In reaching this conclusion, the court said: If there are no material issues of fact in dispute, and plaintiff has failed to allege facts sufficiem to make out a prima facie case, as a matter of law, then summary judgment may be granted properly. Such was the result reached by our supreme court 99-3893 CIVIL in Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). When confronted with appellant's argument that the trial court erred in granting summary judgment, in light of Bremmer, supra, and Nam?Glo, supra, the court concluded' We have no credibility issue here. Assuming everything that appellants argue is accepted as pristine truth, appellants fail to make out a prima facie case as a matter of law, not as a matter of fact. Thompson Coal Co., 488 Pa. at 213-14, 512 A.2d at 474. Dudley, at 169-170, 606 A.2d 920. Here, as in the Dudley case, the analysis must focus on the evidence viewed in a light most favorable to the nonmoving party. As Judge Guido earlier observed, in order to establish a prima facie case, it is incumbent upon the plaintiff to establish that Detective Sabadish concluded that the defendant's statement was based on undisclosed defamatory facts. Detective Sabadish, however, has testified to the opposite effect. Accordingly, the defendant is entitled to summary judgment. ORDER AND NOW, this ~ t · summary judgment is GRAN ED. day of November, 2000, the motion of the defendant for B Y THE COURT, Hess, J. 99-3893 CIVIL Glenn R. Davis, Esquire For the Plaintiff David A. Baric, Esquire For the Defendant :rim