HomeMy WebLinkAbout93-0926 CivilJAMES W. SHELTON,
Plaintiff
V.
BRUCE MILLER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. 926 CIVIL 1993
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO
PLAINTIFF'S AMENDED COMPLAINT
BEFORE SHEELY, P.J., AND OLER, J.
ORDER OF COURT
AND NOW, this294 day of August, 1993, upon consideration of Defendant's
Preliminary Objections to Plaintiff's Amended Complaint, and for the reasons stated
in the accompanying Opinion, Defendant's demurrer is SUSTAINED as to Plaintiff s
claim for defamation based upon statements allegedly made by Defendant during a
Borough Council meeting. Otherwise, the demurrer is DENIED.
BY THE COURT,
)_
d. Wesley Oler, r `
Marcus A. McKnight, III, Esq.
Attorney for Plaintiff
Arthur T. McDermott, Esq.
Attorney for Defendant
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JAMES W. SHELTON,
Plaintiff
V.
BRUCE MILLER,
Defendant
Oler, J.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. 926 CIVIL 1993
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO
PLAINTIFF'S AMENDED COMPLAINT
BEFORE SHEELY, P.J., AND OLER J
ORDER OF COURT
At issue in the present case is a preliminary objection' in the form of a
demurrer filed by Bruce Miller (Defendant). The preliminary objection is in response
to an amended complaint for defamation filed by James W. Shelton (Plaintiff). For the
reasons set forth in this Opinion, Defendant's demurrer will be sustained in part and
denied in part.
The standard of review for considering a preliminary objection in the form of
a demurrer is well settled in Pennsylvania. Such an objection tests the legal
sufficiency of the complaint. Mudd v. Hoffman Homes for Youth, Inc., 374 Pa. Super.
522, 524, 543 A.2d 1092, 1093 (1988). The court, in considering a demurrer, regards
as admitted "every well -pleaded material fact set forth in the pleadings ... as well as
all inferences reasonably deducible therefrom...." Gekas v. Shapp, 469 Pa. 1, 5, 364
A.2d 691, 693 (1976). Furthermore, "a demurrer is not to be sustained and the
complaint dismissed unless the law says with certainty that no recovery is possible."
Cianfrani v. Commonwealth of Pennsylvania, State Employees' Retirement Board, 505
1 Although Defendant's pleading is entitled "Defendant Bruce E. Miller's Preliminary
Objections," only one preliminary objection has been raised.
No. 926 Civil 1993
Pa. 294, 297, 479 A.2d 468, 469 (1984). With specific reference to an allegedly
defamatory statement, it has been held that a court should not sustain a demurrer
unless it is certain that the communication cannot bear a defamatory meaning. Vitteck
v. Washington Broadcasting Co., Inc., 256 Pa. Super. 427, 389 A.2d 1197 (1978). Any
doubt should be resolved against the granting of a demurrer. Gekas v. Shapp, 469 Pa.
1, 6, 364 A.2d 691, 693 (1976). In light of these principles, the facts as averred in
Plaintiff's Amended Complaint may be summarized as follows:'
Plaintiff is a resident of Newville, Cumberland County, Pennsylvania, and is the
President of the Newville Borough Council.' Defendant is also a resident of Newville
and is likewise a member of the Borough Council.4
On or about February 22, 1993, Jerry Stamy, a Borough employee, at the
insistence of Defendant, contacted an attorney, alleging that Plaintiff had threatened
to fire him "in direct violation of the Whistleblower Law."' During a March 2, 1993,
Council meeting, Defendant stated that Plaintiff had threatened Jerry Stamy.'
Following the Council meeting, Defendant held an interview with a reporter from the
2 By summarizing the averments of the Amended Complaint for purposes of this Opinion,
the Court is not, of course, expressing an opinion as to the truth of the allegations.
a Plaintiff's Amended Complaint, paragraph 1.
' Plaintiff's Amended Complaint, paragraph 2.
5 Plaintiff's Amended Complaint, paragraph 3.
6 Plaintiffs Amended Complaint, paragraph 4.
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No. 926 Civil 1993
Valley Star Times expounding on the remarks made during the meeting regarding the
alleged threat to Stamy and accusing Plaintiff of threatening Starry for
"whistleblowing."? The Amended Complaint alleges that Defendant knew these
statements were false when he made them,' and that Defendant also related to the
reporter that Plaintiff threatened to "take Jerry's head off for communicating with
Miller.i'
Plaintiff commenced the present action, asserting claims for defamation and
intentional infliction of emotional distress.10 Defendant filed preliminary objections
to both counts. Plaintiff responded by agreeing to withdraw the intentional infliction
of emotional distress count and to file a more specific pleading as to the defamation
count."
Plaintiff filed an Amended Complaint on June 9, 1993. To this Complaint
Defendant has filed the present Preliminary Objections in the form of a demurrer,
claiming that Plaintiff has failed to state the facts necessary to support a cause of
7 Id.
S Id.
9 Plaintiff"s Amended Complaint, paragraph 5.
io
Plaintiff's Complaint, paragraphs 7-8.
ii See Order of Court, Shelton v. Miller, No. 926 Civil 1993 (Cumberland County, May 20,
1993).
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No. 926 Civil 1993
action for defamation. 12 In raising this objection, Defendant makes the following
contentions: (1) that, in order to state a cause of action for defamation against a public
official, Plaintiff must allege that Defendant acted with actual malice, and that, since
the statements allegedly made by Defendant were the product of reliance upon
information given him by Mr. Stamy, actual malice is lacking;` and (2) that, because
the statements arose out of a public Borough Council meeting, where issues concerning
the Borough of Newville were being discussed, the declarations are privileged by the
Constitutional right to freedom of speech afforded to elected public officials.14
As a general rule, to state a cause of action for defamation in Pennsylvania a
plaintiffs complaint must aver the following: "(1) the defamatory character of the
communication; (2) its publication by the defendant; (3) a reference to the plaintiff; (4)
a recipient's understanding of the communication's defamatory character and its
application to plaintiff; (5) special harm resulting from the publication; and (6) abuse
of any conditional privilege." Smith v. Wagner, 403 Pa. Super. 316, 321, 588 A.2d
1308, 1311(1991). In addition, where the plaintiff is a local public official, a complaint
of the present type must aver that the communication was made with "actual malice."
Id.; see New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed.
12 Defendant's Preliminary Objections to Plaintiffs Amended Complaint, paragraph 8.
13 Id., paragraphs 5, 6, 8.
" Id., paragraph 7.
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No. 926 Civil 1993
2d 686, 706 (1964) .
According to the Restatement (Second) of Torts, liability for a defamatory
statement generally may be imposed irrespective of whether the person charged with
defamation relied on or repeated the statements of another when issuing an allegedly
defamatory remark. Restatement (Second) of Torts § 578 (1977). "[O]ne who repeats
or otherwise republishes defamatory matter is subject to liability as if he had originally
published it."" Id. Thus, in Hoover v. Peerless Publications, Inc., 461 F. Supp. 1206
(E.D. Pa. 1978), it was held that the defendant could not be shielded from liability
solely because a letter sent by him contained allegedly defamatory statements which
were made by others and which defendant claimed he was simply passing along.
The United States Supreme Court has held that a statement made with actual
malice is one made "with knowledge that it was false or with reckless disregard of
whether it was false or not." New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.
Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964). In addition, Pennsylvania Rule of Civil
Procedure 1019(b) provides that "[m]alice ... and other conditions of mind may be
averred generally." The Superior Court of Pennsylvania, while not having to decide
the question to reach its decision, implied that Rule 1019(b) would apply to a
complaint which stated that a publication was made with knowledge that it was false,
and that such a complaint would thus be sufficient to aver actual malice. Burke v.
15 See Restatement (Second) of Torts § 578 cmts. b, c (1977) (applying this standard to
both libel and slander).
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No. 926 Civil 1993
Triangle Publications, Inc., 225 Pa. Super. 272, 277, 302 A.2d 408, 411 (1973).
Defendant's contention that Plaintiff has failed to aver actual malice is thus not
compelling. Plaintiff has averred in his Amended Complaint that Defendant knew that
the statements he made were false when he made them. This is sufficient to allege
actual malice in accordance with the standard set forth in New York Times v. Sullivan
and Pennsylvania Rule of Civil Procedure 1019(b). Moreover, the fact that Defendant
was repeating a statement made by another does not automatically constitute a
defense. Consequently, Defendant's demurrer on this ground must be denied.
In regard to Defendant's second contention, namely that the statements arose
out of a public Borough Council meeting relating to Borough matters and, therefore,
are privileged, it should be noted that Pennsylvania courts have divided privilege into
two categories — absolute and conditional.18 Matson v. Margiotti, 371 Pa. 188, 193,
88 A.2d 892, 895 (1952). In this regard, the Supreme Court of Pennsylvania has held
that
falbsolute privilege ... is unlimited, and exempts a high
public official from all civil suits for damages arising out of
false defamatory statements and even from statements or
actions motivated by malice, provided the statements are
made ... in the course of the official's duties or powers and
within the scope of his authority....
Id. at 193-94, 88 A.2d at 895 (emphasis in original). In determining who is a "high
is Conditional privilege is also referred to as qualified privilege. Corabi v. Curtis
Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971).
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No. 926 Civil 1993
public official' entitled to absolute immunity, the court should look to the "nature of
his duties, the importance of his office, and particularly whether or not he has policy-
making functions." Montgomery v. Philadelphia, 392 Pa. 178, 186, 140 A.2d 100, 105
(1958).
The Court of Common Pleas of Cumberland County, observing that the reason
for the grant of absolute privilege is to protect the public official from "defending the
good faith of his public actions before a jury," and to "remov[e] any inhibitions which
might deprive the public of the best service of its officials," has held that a school
district superintendent is a high public official, entitled to the absolute privilege
accorded such an authority. Steffin v. Mainello, 26 Cumb. L.J. 319, 321(1976),quoting
Montgomery v. Philadelphia, 392 Pa. 178, 182-83, 140 A.2d 100, 102-03 (1958).
Another Pennsylvania court has interpreted the term "high public official' to include
a borough council member. Eck v. Shanaman, 66 Pa. D. & C.2d 600, 602 (Lebanon
Co. 1972).17 More recently, the Commonwealth Court of Pennsylvania has held that
the mayor and the revenue officer of the City of Philadelphia are considered "high
public officials," entitled to absolute immunity when acting in their official capacities.
" See also Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952) (holding that the State
Attorney General enjoyed absolute privilege with respect to his official communications and
acts); Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958) (holding that the Deputy
Commissioner of Public Property and the City Architect of the City of Philadelphia are
absolutely privileged in making defamatory statements to the press which are within the scope
of their duties); Cormick v. Specter, 220 Pa. Super. 19, 275 A.2d 688 (1971) (holding that a
district attorney enjoyed absolute privilege when performing his official functions).
No. 926 Civil 1993
Factor v. Goode, 149 Pa. Commw. 81, 612 A.2d 591 (1992).
While a member of a local legislative body enjoys this absolute privilege with
respect to statements concerning another in the performance of his or her legislative
functions, this privilege does not extend to protect statements made by a legislator in
a context outside the legislative process. Restatement (Second) of Torts § 590 cmt. a
(1977). It was held in Eck v. Shanaman, 66 Pa. D. & C.2d 600 (Lebanon Co. 1972),
that a borough council member enjoyed an absolute privilege as to any allegedly
defamatory statement made during a council meeting in the course of a discussion of
borough business. However, the Supreme Court of Pennsylvania has held that
allegedly defamatory statements published through the political headquarters of a
council member and not during a meeting of the city council were not entitled to
absolute privilege. Biggans v. Foglietta, 403 Pa. 510, 512-13, 170 A.2d 345, 346-47
(1961). While holding that the communication outside the council chambers was not
absolutely privileged, the Court did note that the councilman might have been entitled
to a conditional privilege. Id. at 512, 170 A.2d 346. This is an issue we need not
address in the present case since it has been held, in accordance with Pennsylvania
Rule of Civil Procedure 1030,18 that preliminary objections are not the proper vehicle
for determination of a qualified privilege. Burke v. Triangle Publications, Inc., 255 Pa.
18 Rule 1030 provides that "[a]ll affirmative defenses including ... immunity from suit ...
[and] privilege ... shall be pleaded in a responsive pleading under the heading `New Matter."'
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No. 926 Civil 1993
Super. 272, 276, 302 A.2d 408, 411 (1973).
For these reasons, we hold that Defendant, being a member of the Borough
Council, is a high public official and entitled to absolute privilege as to any allegedly
defamatory statements made in the conduct of his official duties during a public
Council meeting. This privilege forecloses any cause of action brought against
Defendant for the statements allegedly made during the March 2, 1993, Council
meeting, which regarded Borough business. The statements allegedly made following
the meeting to the reporter, while still relating to the business of the Borough, do not
partake of the same absolute privilege as the statements made during the meeting.
Although Defendant may be entitled to a qualified privilege in relation to these
statements, this is not the stage at which such an issue may be addressed.
ORDER OF COURT
AND NOW, this-�'34'�day of August, 1993, upon consideration of Defendant's
Preliminary Objections to Plaintiffs Amended Complaint, and for the reasons stated
in the accompanying Opinion, Defendant's demurrer is SUSTAINED as to Plaintiff's
claim for defamation based upon statements allegedly made by Defendant during a
Borough Council meeting. Otherwise, the demurrer is DENIED.
BY THE COURT,
J. Wesley Oler, Jr -
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No. 926 Civil 1993
Marcus A. McKnight, III, Esq.
Attorney for Plaintiff
Arthur T. McDermott, Esq.
Attorney for Defendant
:rc
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