HomeMy WebLinkAbout2001-3507 Civil
ALBERT H. "BUCK"
SHULLER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
DANIEL L. DANNER,
Defendant
NO. 01-3507 CIVIL TERM
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., June 28, 2006.
In this defamation case, following a bench trial the court entered a verdict
in favor of Plaintiff and against Defendant and awarded damages in the amount of
$500.00.1 Defendant's motion for post-trial relief, in the form of a motion for
judgment notwithstanding the verdict,2 was denied by the court en banc3 and
judgment was subsequently entered on the verdict.4 From this judgment,
Defendant has filed an appeal to the Pennsylvania Superior Court. 5
The issues on Defendant's appeal have been expressed in a statement of
matters complained of on appeal as follows:
1. Did the lower Court commit an error of law or abuse of discretion
in awarding damages to a public official for statements made by Appellant
in a campaign flyer distributed during a primary election in which
Appellee defeated the candidacy of Appellant?6
2. Did the lower Court commit an error of law or abuse of discretion
in finding Appellant liable for defamatory statements against a public
1 Order of Court, December 30,2005.
2 Defendant's Motion for Judgment Notwithstanding the Verdict, filed January 9, 2006.
3 Order of Court, March 29,2006.
4 Praecipe for Entry of Judgment, filed April 27, 2006.
5 Defendant's Notice of Appeal, filed April 28, 2006.
6 This general ground for appeal will not be addressed in the present opinion, except to the extent
that it can be regarded as based upon the specific grounds set forth elsewhere in the statement of
matters complained of on appeal. See Commonwealth v. Reyes, 582 Pa. 317, 326 n.3, 870 A.2d
888, 894 n.3 (2005) (boilerplate assertion in statement of matters complained of on appeal held
not reviewable).
official without clear and convincing evidence of actual malice being
presented by Appellee?
3. Did the lower court commit an error of law or abuse of discretion
in finding that Appellee as a public official suffered actual damage from
Appellant's campaign flyer when Appellee prevailed in the primary
election, publicly initiated the subject litigation prior to the general
election, and is currently an employee of and active politically in Penn
Township, Cumberland County?7
This opinion in support of the judgment is written pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Defendant's appeal may be regarded as a challenge to the en bane court's
denial of his motion for judgment notwithstanding the verdict. 8 In this regard,
"the evidence must be considered in the light most favorable to the verdict winner,
and he must be given the benefit of every reasonable inference of fact arising
therefrom, and any conflict in the evidence must be resolved in his favor." Boutte
v. Seitchik, 719 A.2d 319,322 (1998) (citation omitted).9 Viewed in this light, the
evidence in this case may be summarized as follows:
Plaintiff is Albert H. Shuller, an individual residing at 120 Leeds Road,
Newville (Penn Township), Cumberland County, Pennsylvania.lO Defendant is
Daniel L. Danner, an individual residing at 1046 Centerville Road, Newville (Penn
Township), Cumberland County, Pennsylvania. 11
In May of 2001, both parties were candidates for the Republican
nomination for the elected office of Penn Township supervisor. 12 Two days before
7 Defendant's Statement of Matters Complained of on Appeal, filed May 18,2006.
8 As a general rule, issues cognizable on appeal in a civil case are those which have been
preserved in a motion for post-trial relief. See, e.g., Diener Brick Co. v. Mastro Masonry
Contractor, 885 A.2d 1034, 1038 (Pa. Super. Ct. 2005).
9 A single judge's findings, approved by a court en banc, have the same effect as a jury's verdict.
Durso v. D 'Urso, 409 Pa. 487, 489, 187 A.2d 270,271 (1963).
10 NT. 61-62, Trial, December 21, 2005 (hereinafter N T. ~.
11 NT. 4.
12 NT. 7, 48.
2
the primary election, which was held on May 15, 2001,13 Defendant went door-to-
door in the township distributing caples of a campaign flyer which he had
prepared; he also gave out other copies following a township meeting, and
distributed more copies on election day. 14 Of the hundred copies of the flyer he
had printed, he distributed at least fifty. 15
The purpose of the flyer was to defeat Plaintiff in the election. 16
Defendant's flyer described Defendant as a "[1 life time resident of Penn Township
[who] attended Big Spring School District, [was] a Contractor for 40 years in Penn
Township, [was] retired, and [had been an] Elected Auditor for [a] 6 year term.,,17
It accused Plaintiff, the incumbent chairman of the township's board of
supervisors, of "improper conduct."18 In particular, it made the following specific
accusations of misconduct in office:
Shuller collected money for being a road superintendent, a title he created,
and all he did was the normally required duties as elected supervisor,
collected money in violation of state law.
Shuller improperly placed himself and wife on the Township Health
Insurance Plan in the middle of a six-year term as supervisor. Violated
state law by voting himself compensation while in office and not waiting
until next term.
Mr. Shuller violated the Pennsylvania Sunshine and Open Records Law
when the current township secretary and treasurer were hired.
Albert Shuller violated state law and the township second class code when
he privately negotiated and signed a contract with an Advertising company
to construct two bill board signs along Interstate 81 on township property.
Mr. Shuller secretly authorized the leasing of the township property
without allowing the public to bid on the lease. Albert Shuller was the
only Supervisor to sign the contract.
Albert Shuller using his personal and township attorney Ron Turo
attempted to bribe another supervisor with jobs for voting yes with Albert
13 NT. 47-48.
14 NT. 12.
15 NT. 12.
16 NT. 7,10-11.
17 Plaintiffs Exhibit 1, Trial, December 21,2005 (hereinafter Plaintiffs/Defendant's Exhibit~.
18 Plaintiffs Exhibit 1.
3
Shuller at township meetings. This offer of a bribe was given on township
property.
As Auditor Daniel Danner and fellow elected auditors are denied
permission to access the computerized financial and other records of the
h. 19
towns Ip.
Notwithstanding the publication of this material immediately prior to the
primary, Plaintiff succeeded in winning the Republican nomination for re-
election.20 Following the primary and prior to the general election, in an attempt
to defend his reputation,21 Plaintiff filed the instant suit for defamation.22
The accusations made by Defendant were not retracted,23 and at least a
portion of the voting public remembered the flyer as of the time of the general
election?4 The registration among the 1200 registered voters in Penn Township
was predominantly Republican,25 but Plaintiff lost his seat to a Democrat in the
general election. 26 Plaintiff testified, credibly in the court's view, that he
experienced "a definite coolness from the residents in the community" which had
not existed previously. 27
With respect to the falsity of the defamatory material contained in the flyer,
this issue has not been pursued in either Defendant's motion for judgment
notwithstanding the verdict28 or his statement of matters complained of on
19 Plaintiffs Exhibit 1.
20 NT. 87.
21 NT. 75.
22 Plaintiffs complaint was filed on June 7, 2001.
23 NT. 76-77
24 NT. 86.
25 NT. 78.
26 NT. 77-78.
27 NT. 76.
28 See Defendant's Motion for Judgment Notwithstanding the Verdict, filed January 9, 2006.
4
appeal. 29 The evidence leading the court to conclude that Defendant's accusations
were in fact false will therefore not be reviewed here?O
With respect to actual malice on the part of Defendant in creating and
publishing the flyer, the court did not find credible Defendant's testimony that he
had had "no personal objections or concerns regarding" the Plaintiff,31 that he had
had "no personal animus towards the Plaintiff,,,32 and that he had spent "months"
researching the accusations in the flyer.33 To the contrary, the evidence tended to
show that personal animosity on the part of Defendant and his son, who was
himself a township supervisor,34 toward the Plaintiff had become a focus of
township meetings.35
The situation was described by the township solicitor as follows:
. . . [D]uring that time the Danner family was insistently
coming to township meetings, being very difficult, obnoxious,
totally improper, totally unprofessional. As township solicitor
it got to the point that I was very concerned that the
environment had turned into such a zoo. If the Board said it
was black, the Danners said it was white; if it was night out, it
was day time. It just got ridiculous. 36
* * * *
. . . [Defendant's son] was acting out of control like a
spoiled young kid, ranting and raving, getting up and walking
out of meetings, being totally unprofessional. 37
29 See Defendant's Statement of Matters Complained of on Appeal, filed May 18,2006.
30 The issue as to the burden of proof in a defamation action on the issue of the truth or falsity of
allegedly defamatory material is discussed in Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.
Super. 475,484-91,448 A.2d 6, 11-14 (1982), inter alia.
31 NT. 125.
32 NT. 111.
33 NT. 10.
34 NT. 46.
35 NT. 50.
36 NT. 50.
37 NT. 58.
5
* * * *
. . . I asked [Defendant' s son] to behave as [ a] professional
and an elected supervisor, that is what I asked him to do as a
fellow township official. He actually got a little bit better after
those conversations for some period of time until [Defendant]
told him what to do again, and that was to misbehave. 38
* * * *
. . . [Defendant] would yell [to his son at] public meetings.
Don't you sit there and take that, Jeff, vote against that, Jeff,
things like that. Walk out of here, Jeff. 39
Defendant's purported good faith belief in the truthfulness of his
accusations was belied, in the court's view, by a demonstrated pattern in
connection with the flyer of willful misconstruction, failure to investigate, and
distortion. First, with regard to the allegations that Plaintiff had "created" the
position of road superintendent and "collected money in violation of state law" for
work not done in that capacity, Defendant had no basis whatsoever for the first
proposition40 and made no effort to verify the second conjecture.41
Second, with regard to the allegation of a violation "of state law [on the
part of Plaintiff] by voting himself compensation while in office and not waiting
until next term," the opposite of this proposition was patently true. Plaintiff had
declined to accept available "compensation" in the form of health benefits until
such time as his health insurance from another source had lapsed, thereby saving
the township $24,000.00 in premiums.42 In the court's view, Defendant's
misconstruction of Section 606 of the Second Class Township Code 43 to
characterize this conduct as violative of state law and, by implication, as a theft of
38 NT. 50.
39 NT. 59.
40 See NT. 18-22.
41 See NT. 20-21.
42 See NT. 66-69.
4353 P.S. ~6506.
6
public funds, was so preposterous as to be indicative of an intentional
. 44
mIsstatement.
Third, with regard to the accusation that Plaintiff "violated the
Pennsylvania Sunshine and Open Records Law when the current township
secretary and treasurer were hired," Defendant's lack of foundation for this
misstatement was apparent in the confused and evasive nature of his testimony on
the subject.45 Fourth, with regard to the supposed "secret[]" and "privately
negotiated" lease of township property, a similar lack of foundation for the
assertion was evident from the record.46 Defendant conceded that the accusation
was published with no concern on his part as to whether Plaintiff s action had been
publicly authorized by the board of supervisors or not.47
Fifth, with regard to the accusation by Defendant that Plaintiff had
attempted to bribe another supervisor to obtain his vote at township meetings, the
allegation was a particularly egregious example of a false statement arising from
Defendant's willingness to attribute to Plaintiff in print the supposed misconduct
of a third party with no basis for doing so and no investigation of whether the
attribution was true.48 Finally, with regard to the assertion by Defendant that he
and other auditors had been "denied permission to access the computerized
financial and other records of the township," the allegation would appear to be a
mischaracterization of the township's failure to provide a record which it did not
h 49
ave.
In summary, based upon the totality of the circumstances, including the
cumulative nature of the misstatements in question, the court was of the view that
44 See NT. 23-27.
45 See, e.g., NT. 28-41.
46 See NT. 41-45.
47 See NT. 41-45; see also NT. 71-73.
48 See NT. 46-47.
49 See NT. 123.
7
Defendant's generation and publication of the defamatory material in question had
been shown, by clear and convincing evidence, to have been the product of a
willful disregard of the facts.
With respect to damages suffered by Plaintiff, Plaintiff conceded that he
chose to file the present defamation action notwithstanding his realization that the
additional publicity generated by the suit could itself diminish his prospects in the
general election. 50 His rationale for the decision to proceed with the litigation was
provided in his testimony as follows:
This whole action came about only after Mr. Danner
decided to put verbal allegations that he had made on paper. In
a small community like we live in, people listen to what is said
and put the value on it that they feel they want to put on it. But
when it comes to something in writing, they give it a lot more
weight because they feel, well, somebody wouldn't dare write
something like that unless it was true. So basically, it put me
between making a choice, the choice was that I want to just let
it go and take a chance winning the fall elections and going on
as supervisor, or did I want to try to protect my reputation,
which was very important to me, and take immediate steps to
bring a suit against Mr. Danner for the allegations that he had
made. So weighing the job against my reputation, I chose to
protect my reputation, and if I lost the job, then I lost the job,
b . . 51
ut my reputatIOn was more Important.
Some monetary consequences, of course, were occasioned by the loss of
Plaintiff s position as a township supervisor. 52 Defendant's counsel, while
conceding that Plaintiff s concern that he would lose the general election as a
result of filing suit probably became a reality, 53 ascribed this aspect of Plaintiff s
harm to Plaintiff s own conduct in initiating the litigation rather than to the flyer
that precipitated the suit. 54
50 NT. 75.
51 NT. 75.
52 NT. 75-76.
53 NT. 159.
54 NT. 159.
8
At the conclusion of the trial, the court took the matter under advisement. 55
After reviewing the evidence and the law related to defamation of public figures, it
entered the following verdict:
AND NOW, this 30th day of December, 2005, upon
consideration of Plaintiff s Amended Complaint in the above-
captioned matter, and following a nonjury trial held on
December 21, 2005, on the issue of libel, the court finds in
favor of Plaintiff and against Defendant and awards damages in
the amount of $500.00, plus costs of suit.56
Judgment was entered on the verdict on April 27, 2006.57 Defendant's
appeal from the judgment was filed on April 28, 2006.58
DISCUSSION
Statement of Law
Defamation in general. Defamation is a communication that "tends so to
harm the reputation of another as to lower him in the estimation of the community
or to deter third persons from associating or dealing with him." Cosgrove Studio
& Camera Shop, Inc. v. Pane, 408 Pa. 314, 318, 182 A.2d 751, 753 (1962). "A
libel is a maliciously written or printed publication which tends to blacken a
person's reputation or expose him to public hatred, contempt, or ridicule or injure
him in his business or profession." Id at 317, 182 A.2d at 753. The defamatory
character of a publication is a question of law. Bogash v. Elkins, 405 Pa. 437, 440,
176 A.2d 677, 678 (1962).
Special harm. By statute in Pennsylvania a plaintiff can not recover in a
defamation action absent proof of "special harm resulting to the plaintiff from its
publication." Act of July 9, 1976, P.L. 586, 92, 42 Pa. C.S. 98343(a)(6). To
establish "special harm," a plaintiff must prove that he or she suffered more than
55 NT. 169.
56 Order of Court, December 30,2005.
57 Praecipe for Entry of Judgment, filed April 27, 2006.
58 Defendant's Notice of Appeal, filed April 28, 2006.
9
mere annoyance or embarrassment, but does not need to prove actual "out-of-
pocket loss." Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 316, 483 A.2d
456, 463, 467 (1984) (citations omitted). Reputational harm is, however,
sufficient to satisfy this element. Id at 328,483 A.2d at 473-74.
Furthermore, it is obvious that a defendant who has defamed another will
not be relieved of responsibility for a repetition of the defamation by the victim
where such "self-publication" is a reasonable and foreseeable response under the
circumstances. See Stine v. Walter, 29 Pa. D. & CAd 193, 198-99 (York Co.
1996); McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 795-98 (1980).
Actual malice. "When... the plaintiff is a public figure, he can not recover
[in a libel action] unless he proves by clear and convincing evidence that the
defendant published the defamatory statement with actual malice, i. e., with
knowledge that it was false or with reckless disregard of whether it was false or
not. . .. Mere negligence does not suffice." Masson v. New Yorker Magazine,
501 U.S. 496, 510,111 S. Ct. 2419, 2429,115 L. Ed. 2d 447,468 (1991) (citations
omitted). "[T]he plaintiff must demonstrate that the [ defendant] in fact entertained
serious doubts as to the truth of his publication. . . or acted with a high degree of
awareness of . . . probable falsity." Id (citations omitted). 59 This principle does
not mean, however, that a public figure is, as a practical matter, without legal
recourse when egregiously defamed. The Pennsylvania Supreme Court has been
alert to
the seesawing balance between the constitutional rights of
freedom of expression and of safeguarding one's reputation:
protection of one of those rights quite often leads to diminution
of the other. Yet, in the quest to strike a balance between these
two competing protections, [the C]ourt [has] cautioned that the
freedom of expression should not be seen as dominant and the
protection of reputation as inferior. [It has] stressed that the
right to protect one's reputation is not a second-class right,
59 A township supervisor in Pennsylvania qualifies as a public figure for this purpose. See
generally Bartlett v. Bradford Publishing, Inc., 885 A.2d 562, 566 (Pa. Super. Ct. 2005)
(township police officer deemed public figure for purposes of defamation law).
10
amenable to being pressed into oblivion by other constitutional
provisions. [The Court has] made it plain that "a person's
interest in his or her reputation has been placed in the same
category with life, liberty and property.
Norton v. Glenn, 580 Pa. 212, 228-29, 860 A.2d 248, 58, (2004).
Application of Law to Facts
In the present case, the defamatory nature of the written material created
and published by Defendant was self-evident, and, as noted, Defendant has not
pursued the issue of the truth of the accusations. With respect to special harm, the
publication had, in the court's view, the desired effect of so damaging Plaintiffs
reputation as to lower him in the estimation of the community. The fact that this
injury may have been exacerbated economically by Plaintiff s initiation of suit is
not an exculpatory factor, where the suit was a reasonable and foreseeable
consequence of Defendant's conduct.
With respect to actual malice, the circumstances were such in this case that
the court, in its capacity as trier of fact, found that actual malice on the part of
Defendant had been proven by clear and convincing evidence. The court did not
find credible Defendant's testimony to the effect that he did not entertain serious
doubts as to the truth of the accusations which he formulated and published
against Plaintiff.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Galen R. Waltz, Esq.
28 South Pitt Street
Carlisle, P A 17013
Attorney for Plaintiff
11
Douglas G. Miller, Esq.
West Pomfret Professional Bldg.
60 West Pomfret Street
Carlisle, P A 17013
Attorney for Defendant
12