Loading...
HomeMy WebLinkAbout01-3507 CIVILALBERT H. "BUCK" SHULLER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW DANIEL L. DANNER, LUTHER: L. KECK, DORIS M. KECK, STEVEN P. HAMMOND, and TAMMY L. HAMMOND, Defendants NO. 01-3507 CIVIL TERM IN RE: DEFENDANT DANIEL L. DANNER'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER~ JJ.~ OPINION and ORDER OF COURT OLER, J., November 20, 2001. This case arises from allegedly defamatory statements that are said to have appeared in a flyer produced by Defendant Daniel L. Danner, a candidate in a primary election campaign for public office. The statements allegedly accused Plaintiff, the incumbent official, of various violations of Pennsylvania law while in office.2 On June 7, 2001, Plaintiff filed a complaint against Defendants, seeking compensatory and punitive damages and consisting of three counts: libel, slander, and defamation of character.3 On July 10, 2001, Defendant Daniel L. Danner filed preliminary objections to the complaint based on legal insufficiency of the complaint, ~ Hess, J, did not participate in the consideration or disposition of this case. ~ See Compl., filed June 7, 2001. 3 Id It was indicated at oral argument that the action has been settled as to all Defendants except Defendant Danner. Preliminary objections of Defendants other than Defendant Danner will therefore be considered moot. failure to conform to law or rule of court, and insufficient specificity.4 No answer was filed by Plaintiff in response to these preliminary objections.5 Among the issues presented in this matter is whether, in an action for defamation in which the plaintiff is a public figure, a characterization in the complaint of the defendant's state of mind in terms of "malevolency" or "ill-will" will be sufficient to withstand a demurrer. For the reasons stated in this opinion, Count I (libel) will be dismissed, subject to a right to amend, and Counts II (slander) and III (defamation of character) will be dismissed with prejudice. STATEMENT OF FACTS Plaintiff's complaint sets forth three separate causes of action: libel, slander, and defamation of character, all of which arise from the same allegedly defamatory publication.6 The allegations of the complaint may be summarized as follows: Plaintiff Albert H. "Buck" Shuller was the elected Township Supervisor in Penn Township, Cumberland County, Pennsylvania, and Defendant Daniel L. Danner (hereinafter Defendant Danner) was a candidate for that position in an upcoming primary election.7 Defendant Danner produced a flyer that accused Plaintiff of committing several violations of state law while in office,a Copies of the flyer were distributed to Defendants Luther L. Keck, Doris M. Keck, Steven P. Hammond, and Tammy L. Hammond (hereinafter Defendants Kecks and Hammonds), all of whom operated stores in the area, 4 See Prelim. Objections of Def. Daniel L. Danner to Pl.'s Compl., filed July 10, 2001. 5 Plaintiff was not required to file an answer because the preliminary objections did not include a notice to plead. Pa. R.C.P. 1026(a). 6 Xee Compl., paras. 17-34, filed June 7, 2001. 7Id. paras. 7-8. 8 Id. paras. 11-15. The flyer allegedly stated that Plaintiff "improperly placed himself and wife on the Township Health Insurance Plan," "violated state law by voting himself compensation during his term," "violated the Pennsylvania Sunshine and Open Records Law" in hiring processes, "violated state law and township second class code when he privately negotiated and signed a contract with an Advertising company," "secretly authorized the leasing of the township property," and "attempted to bribe another supervisor with jobs for voting yes." See id. at 20 (attached copy of flyer). 2 "for distribution and publication to the general public.''9 Through this distribution of the flyer, Defendant Danner "communicate[d] to others" that Plaintiff had acted illegally and, thus, harmed Plaintiff's reputation in the community, l0 The complaint alleges that the statements in the flyer were false, that they "were made by Defendant [Danner] as the result of expressed malice arising from ill will, bad intent or malevolency toward Plaintiff," and that Plaintiff is entitled to recover compensatory and punitive damages.~ The complaint requests compensatory and punitive damages "in an amount in excess of $100,000."12 Defendant Danner filed preliminary objections to the complaint on various grounds. The first objection, "in the [n]ature of a [d]emurrer [p]ursuant to Pa. R. Civ. P. 1028(a)(4)," contends that the complaint should be dismissed for failure to state legally sufficient causes of action for libel, slander, and defamation. ~3 The preliminary objections also maintain that the complaint fails to state with sufficient specificity the identity of the persons to whom the allegedly defamatory statements were made, the "understanding by recipients of any alleged defamatory meaning," or the "special harm.., beyond an alleged injury to reputation." ~4 The second objection argues that the complaint fails to conform to law or rule of court because it seeks damages "in excess of $100,000." It is contended that Plaintiff's 9 Id. paras. 9-10. The complaint includes counts of libel, slander, and defamation of character against all four of these defendants based on their publication of the flyer in a "place of business known to be frequented by members of the general public." Id para. 10. As stated previously, it was indicated at oral argument that Defendants Kecks and Hammonds were to be dismissed from this action by settlement of the parties. ~°Id para. 11, 21, 27, 33. ~ Id paras. 21-22, 27-28, 33-34. ~2 Id at 3, 4, 5 (ad damnun clauses of Counts I, II, and III). ~3 Prelim. Objections of Def. Daniel L. Danner to Pl.'s Compl., para. 7, filed July 10, 2001. ~4 Id paras. 13-16. request for damages is "prejudicial" and violates Pennsylvania Rule of Civil Procedure 1021.15 DISCUSSION Statement of Law Preliminary Objections. In reviewing preliminary objections that would result in the dismissal of a cause of action, the court is obliged to accept as true "all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts." Small v. Horn, 554 Pa. 600, 608, 722 A.2d 664, 668 (1998). However, the court need not accept any conclusions of law contained in the pleadings. Id at 608, 722 A.2d at 668. "In order to sustain the demurrer, it is essential that the plaintiffs complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery." Gekas v. Sha££, 469 Pa. 1, 5, 364 A.2d 691,693 (1976). Defamation. In a defamation action, Section 8343 of Title 42 of the Pennsylvania Consolidated Statutes places the burden of proof on plaintiffs to establish the following elements: (1) The defamatory character of the communication. (2) Its publication by the defendant. (3) Its application to the plaintiff. (4) The 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. (7) Abuse of a conditionally privileged occasion. Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa. C.S.A. § 8343(a) (West 1998 & Supp. 2001). The defamatory character of a publication is a question of law and is determined by examining whether the publication, considered in its entirety, tends to "lower a person in the estimation of the community, deter third parties from associating with him, or ~5Id. paras. 8-12. 4 adversely affect his fitness for the proper conduct of his lawful business or profession." Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. Ct. 1997). A publication cannot be deemed defamatory if it is merely an expression of opinion, meaning that it does not "imply the existence of undisclosed defamatory facts." Id at 174. To establish "special harm," plaintiffs must establish that they suffered more than "mere annoyance or embarrassment," but do not need to prove actual "out-of-pocket loss." Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 309, 316, 483 A.2d 456, 463, 467 (1984) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323,350, 94 S. Ct. 2997, 3012, 41 L. Ed. 2d 789, 811 (1974)). Allegations of reputational harm are sufficient to satisfy this element against a challenge of legal insufficiency. Id at 328, 483 A.2d at 474. In addition to the statutory requirements, the First Amendment of the United States Constitution requires public figure plaintiffs to prove that the defamatory statement was made with "actual malice." United States v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964). "Actual malice," in this context, means that the statements were made either "with knowledge that it was false or with reckless disregard of whether it was false or not." Id at 280, 84 S. Ct. at 726, 11 L. Ed. 2d at 706. This definition may be contrasted with "common law malice," which refers to ill-will or malevolency. DeMary v. Latrobe Printing and Pub. Co., 762 A.2d 758, 764 (Pa. Super. Ct. 2000). Under the Sullivan standard, a plaintiff must establish that the defendant "entertained serious doubts" regarding the truth of the statement. Tucker v. Philadelphia Daily News, 757 A.2d 938, 945 (Pa. Super. Ct. 2000) (quoting Raffensberger v. Moran, 336 Pa. Super. 97, 109, 485 A.2d 447, 453 (1984)). A legally sufficient cause of action for defamation must allege - or contain facts that permit an inference - that the statement was made with knowledge of their its or with reckless disregard for its possible falsity. Smith v. Wagner, 403 Pa. Super. 316, 321,588 A.2d 1308, 1311 (1991). The statutory and constitutional requirements apply with equal force to the two types of defamation: libel and slander. Ella v. Erie Ins. Exchange, 430 Pa. Super. 384, 390-91, 634 A.2d 657, 660 (1993); Sobel v. Wingard, 366 Pa. Super. 482, 486, 531 A.2d 520, 522 (1987). Libel generally refers to a written or printed form of defamation, while slander generally refers to oral defamation. Id at 486, 531 A.2d at 522; Agriss, 334 Pa. Super. at 319-20, 483 A.2d at 469.~6 Subsequent repetition of a libel cannot establish a cause of action for slander. Id at 320 n.6, 483 A.2d at 469 n.6. Damages. Pennsylvania Rule of Civil Procedure 1021 provides, in pertinent part, as follows: (b) Any pleading demanding relief for unliquidated damages shall not claim any specific sum. (c) In counties having rules governing compulsory arbitration the plaintiff shall state whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration referral by local rule. Pa. R.C.P. 1021. Under Cumberland County Rule of Procedure 1301-1, all cases in which the total amount in controversy does not exceed $25,000 must be submitted for arbitration. C.C.R.P. 1301-1. Application of Law to Facts Defamation. Plaintiff's complaint is legally insufficient because it does not allege that Defendant Danner acted with "actual malice" in publishing the statements. Under Sullivan, to establish a prima facie case of defamation, a public figure plaintiff must allege that the statements were made with knowledge of their falsity or with reckless disregard for their possible falsity. In this case, Plaintiff, who was admittedly a public figure by virtue of his position as Township Supervisor, has alleged that the statements were made "as a result of expressed malice arising from ill-will, bad intent or malevolency." This allegation, if proven, would support a finding of "common law malice," but does not support a finding of "actual malice," as defined in Sullivan. Plaintiff has alleged no facts that support a conclusion that Defendant Danner either knew that the statements were false or acted with reckless disregard for their falsity; therefore, Plaintiff has failed to state a legally sufficient claim for defamation. 16 Although the distinction between slander and libel has been referred to as archaic - and although Pennsylvania statute does not distinguish between the two forms - "to this day, they wield dead-hand influence over the law of defamation." Agriss, 334 Pa. Super. at 320 n.6, 483 A.2d at 469 n.6; see 42 Pa. C.S.A. § 8343(a). Thus, the distinction will be followed in this case. Although currently insufficient, the complaint may be supplemented by allegations that support a finding of "actual malice." The flyer implies the existence of facts that suggest Plaintiff acted illegally while in office, and, thus, may be deemed defamatory. Further, the allegations, if proven, could support conclusions that the statements were distributed to Defendants Kecks and Hammonds, that the statements applied to Plaintiff, that the statements were understood by Defendants Kecks and Hammonds to be defamatory, and that reputational harm was suffered by Plaintiff. If Plaintiff is able to allege that the Defendant acted, at a minimum, with reckless disregard for the falsity of the statements, the complaint may state a legally sufficient claim. However, even supplemented with allegations of "actual malice," the complaint is capable of sustaining only one cause of action. Currently, the complaint seeks recovery on three separate counts: libel, slander, and defamation of character. These terms, however, do not refer to three distinct claims, but represent different descriptions of the same claim. Slander and libel are merely forms of defamation, and, thus, Plaintiff cannot advance more than one of these counts when the allegations suggest only a single incident of defamation, specifically libel. For these reasons, Plaintiff will be granted an opportunity to amend Count I (libel), to supplement the allegations to conform with constitutional requirements, if Plaintiff is able to do so, and Counts II (slander) and III (defamation of character) will be dismissed with prejudice. Damages. The complaint contains an improper request for a specified amount of unliquidated damages. Pennsylvania Rule of Civil Procedure 1021 permits parties to "state [only] whether the amount claimed does or does not exceed the jurisdictional amount requiring arbitration referral by local rule." Pa. R.C.P. 1021(b). The complaint, however, specifies damages "in excess of $100,000." If Plaintiff chooses to file an amended complaint, Plaintiff should refrain from stating any specific sum of damages; rather, Plaintiff should state only whether the amount exceeds the minimum arbitration amount. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 20th day of November, 2001, after careful consideration of the Preliminary Objections of Defendant Daniel L. Danner to Plaintiff's Complaint, and of the briefs and arguments on the issues presented therein, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Count I (libel) of Plaintiff's complaint is dismissed, subject to a right of Plaintiff to file an amended complaint within 20 days of the date of this order, repleading the count, if possible, in accordance with the accompanying opinion; and 2. Counts II (slander) and III (defamation of character) of Plaintiff's complaint are dismissed with prejudice. BY THE COURT, Ron Turo, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff Douglas G. Miller, Esq. West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 Attorney for Defendant Daniel L. Danner /s/J. Wesley Oler, Jr., J. J. Wesley Oler, Jr., J. ALBERT H. "BUCK" SHULLER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW DANIEL L. DANNER, LUTHER: L. KECK, DORIS M. KECK, STEVEN P. HAMMOND, and TAMMY L. HAMMOND, Defendants NO. 01-3507 CIVIL TERM 1N RE: DEFENDANT DANIEL DANNER'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER~ JJ? ORDER OF COURT AND NOW, this 20th day of November, 2001, after careful consideration of the Preliminary Objections of Defendant Daniel L. Danner to Plaintiff's Complaint, and of the briefs and arguments on the issues presented therein, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Count I (libel) of Plaintiff's complaint is dismissed, subject to a right of Plaintiff to file an amended complaint within 20 days of the date of this order, repleading the count, if possible, in accordance with the accompanying opinion; and 2. Counts II (slander) and III (defamation of character) of Plaintiff's complaint are dismissed with prejudice. BY THE COURT, J. Wesley Oler, Jr., J. Ron Turo, Esq. 28 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff Douglas G. Miller, Esq. West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013-3222 Attorney for Defendant Daniel L. Danner * Hess, J, did not participate in the consideration or disposition of this case. 12