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Home My WebLink About2009-6864 MARGARET M. STUSKI, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V.: : SHERYL M. DELOZIER, : NO. 2009 -6864 CIVIL TERM FRIENDS OF : SHERYL DELOZIER, AND : THOMAS BEENE, : Defendants : : IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS BEFORE GUIDO, OLER ORDER OF COURT AND NOW, this ________ day of AUGUST, 2010, for the reasons stated in the accompanying opinion, defendants’ preliminary objections in the nature of a demurrer are SUSTAINED and the plaintiff’s third amended complaint is DISMISSED with prejudice. By the Court, ________________ Edward E. Guido, J. Margaret M. Stuski 908 Walnut Street Wormleysburg, Pa. 17043 Karen Balaban, Esquire 223 State Street, Suite 200 P.O. Box 821 Harrisburg, Pa. 17108-0821 :sld NO. 2009 – 6864 CIVIL TERM IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS BEFORE GUIDO, OLER OPINION AND ORDER Plaintiff Margaret M. Stuski filed a multi-count complaint alleging defamation against Defendant Sheryl M. Delozier, Defendant Friends of Sheryl Delozier and Defendant Thomas Beene. Currently before us are the preliminary objections in the nature of a demurrer filed by all defendants. The parties have briefed and argued their respective positions. The matter is ready for disposition. Factual Background Stuski and Delozier were opponents in the 2008 general election to fill the open th 88 District State House seat. Both parties campaigned vigorously with Delozier prevailing. The claims against defendants Delozier and Friends of Delozier are based upon statements made in a brochure mailed to prospective voters. The alleged defamatory statements were that the plaintiff was “untruthful” “unpredictable,” had a “troubled record”, and that she had been rated “not recommended” for elective office “by 1 her peers at the Pa. Bar Association.” The brochure also referred to her as “a former car 2 dealer.” The claim against Beene is based upon a letter to the editor published in the Patriot News as well as numerous e-mails contained in exhibits attached to the complaint. She alleges that the defamatory statement in the letter is his allegedly false claim that “I 1 Complaint paragraph 49, Exhibit “P”. We note that the third amended complaint does not have Exhibit “P” attached. However, we consider it because it was attached to the prior complaints and addressed by the parties in their briefs as well as at argument. 2 Complaint paragraph 50, Exhibit “P”. 2 NO. 2009 – 6864 CIVIL TERM am fortunate to know and work closely with both of the candidates running for the open th3 House 88 District.” She does not specify the defamatory statements contained in the e- mails. Applicable Law Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. We may sustain a demurrer only when the complaint is “clearly insufficient to establish the pleader’s right to relief.” County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985) (citations omitted). Preliminary objections admit as true all relevant and material facts that are well-pleaded, as well as all inferences reasonably deduced form those facts. Id. 4 The Uniform Single Publication Act sets forth the elements of a prima facie case for defamation. The burden is upon plaintiff to prove, inter alia, the defamatory 5 character of the communication. A communication is defamatory if it “tends to harm the reputation” or expose the subject to “public hatred, contempt or ridicule.” Feldman v. Lafayette Green Condominium, Association, 806 A.2d 497 at 500-501 (Pa. Commonwealth 2002). However, certain types of communications no matter how offensive are not actionable. As the Feldman court noted, “a statement that is merely an expression of opinion is not defamatory.” Id. The court went on to explain: Pennsylvania courts have adopted Section 566 of the Restatement (Second) of Torts as an aid in determining whether a statement is strictly opinion. . . . Section 566 states that a defamatory communication in the form of an opinion is only actionable if it implies the allegation of undisclosed defamatory facts as its basis. Restatement (Second) of Torts § 566. Further, comment (c) to Section 566 3 Complaint paragraph 30, Exhibit “O”. 4 42 Pa. C.S.A. §§ 8341 – 8345. 5 42 Pa. C.S.A. § 8343 (a). 3 NO. 2009 – 6864 CIVIL TERM explains the distinction between non-actionable “pure” opinion and potentially actionable “mixed opinion.” It states: A simple expression of opinion based on disclosed . . . 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. Id, citations omitted. If the plaintiff is a public figure, as in the case at bar, case law imposes an additional burden. She must prove that the defendants published the statements with actual malice. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899 (2007); New York Times v. Sullivan, 376 U.S. 254 (1964). Actual malice is a legal term of art meaning that the defendants acted “with knowledge that the statement was false or with reckless disregard of its falsity.” Weaver, 926 A.2d at 903. Negligence or carelessness in publishing incorrect information is not evidence of actual malice. New York Times v. Sullivan, supra. Nor does the failure to investigate the accuracy of a statement, without more, satisfy the requirements of actual malice. Fitzpatrick v. Philadelphia Newspaper, Inc. 389 Pa Super 438, 567 A.2d 684 (1989). DISCUSSION Applying the above law to the case at bar we are satisfied that all of defendants’ preliminary objections must be sustained. We start by noting that the alleged defamatory statements were made during a hotly contested political campaign. We also note that they were relatively mild when judged against the standard we have come to expect in the political arena. While plaintiff may have been personally offended, none of the statements are actionable. We will discuss the offending statements seriatim. “Not Recommended for Elective Office.” 4 NO. 2009 – 6864 CIVIL TERM Count I of the complaint is based upon the claim in Delozier’s campaign flyer that plaintiff was “not recommended for elective office by her peers at the Pa. Bar 6 Association.” However, it is clear from the pleadings that the element of actual malice is lacking. The flyer itself cites to a report in the Philadelphia Inquirer as the source of the information. Furthermore, the plaintiff admits in the complaint that she received such 7 a rating in connection with her aborted candidacy for the Pennsylvania Supreme Court. “Unpredictable . . . – Can’t tell the truth.” At the very top of Delozier’s brochure in stark bold letters is the statement 8 Marge Stuski Unpredictable . . . Can’t Tell the Truth.” “ Counts II and III of plaintiff’s complaint are based upon this statement. However, the brochure goes on to explain: “Marge Stuski’s barrage of negative th campaign mailers in the 88 District would make a Philadelphia ward boss blush with 9 pride, given their blatant disregard of the facts.” It then sets forth the allegedly false statements contained in plaintiff’s campaign mailers. Not only is the alleged defamatory statement an expression of opinion, it is clearly based upon disclosed facts. As such it is not actionable. See Feldman supra. “Former Car Dealer.” 6 Exhibit “P” to the Complaint. 7 Complaint, paragraphs 69 – 77. 8 Exhibit “P”. 9 Exhibit “P”. 5 NO. 2009 – 6864 CIVIL TERM Count IV of the complaint is based upon the allegedly false accusation that 10 plaintiff was a “former car dealer.” We cannot imagine any circumstances in which such a statement could be considered defamatory under the law. Plaintiff’s claim to the contrary does not merit any further discussion. Claims Against Defendant Beene The plaintiff attached various e-mails and a letter to the editor as exhibits “A” through “O” to the complaint. She alleges that they contained “wicked, malicious, false, 11 and illegal” statements.” The complained of statement in the letter is pure opinion. With regard to the e-mails she does not specify, nor were we able to find any which were actionable. Those that may be considered objectionable were statements of opinion based upon disclosed facts. Therefore, we will enter the order that follows. ORDER st AND NOW, this 31 day of AUGUST, 2010, for the reasons stated in the accompanying opinion, defendants’ preliminary objections in the nature of a demurrer are SUSTAINED and the plaintiff’s third amended complaint is DISMISSED with prejudice. By the Court, /s/Edward E. Guido Edward E. Guido, J. 10 Complaint paragraph 119, Exhibit “P”. the actual allegation in the flyer refers to plaintiff as “A Philadelphia lawyer and former car dealer. . . “ 11 Complaint, paragraphs 140 – 145. 6 NO. 2009 – 6864 CIVIL TERM Margaret M. Stuski 908 Walnut Street Wormleysburg, Pa. 17043 Karen Balaban, Esquire 223 State Street, Suite 200 P.O. Box 821 Harrisburg, Pa. 17108-0821 :sld 7