Rubin, H. v. CBS Broadcasting Inc. ( 2017 )


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  • J-A31026-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    HOWARD RUBIN                                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    CBS BROADCASTING INC. D/B/A CBS 3
    Appellee                  No. 3397 EDA 2015
    Appeal from the Order Entered October 20, 2015
    In the Court of Common Pleas of Philadelphia County
    Civil Division at No(s): 1515 November Term, 2014
    BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*
    MEMORANDUM BY MOULTON, J.:                              FILED JUNE 13, 2017
    Howard Rubin appeals the October 20, 2015 order entered in the
    Philadelphia County Court of Common Pleas granting the motion of CBS
    Broadcasting Inc. d/b/a CBS 3 (“CBS”) for judgment on the pleadings. We
    reverse and remand for further proceedings.
    This appeal arises from a news report related to Rubin’s September
    2014 termination from his job as a school police officer at Multi-Cultural
    Academy Charter School (“MACS”) in Philadelphia.          The central issue on
    appeal is whether the substance of that report – that Rubin was fired from
    his job “over allegations of child sexual abuse” – was sufficiently close to the
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-A31026-16
    undisputed facts to warrant judgment on the pleadings for CBS.               We
    conclude that it was not.
    On September 29, 2014, during the 6:00 p.m. airing of Eyewitness
    News on a television station owned and operated by CBS, anchor Chris May 1
    read the following report regarding Rubin’s termination: “A police supervisor
    at a Philadelphia charter school is fired over allegations of child sexual
    abuse. Howard Rubin is the suspect. He is accused in the sexual abuse of
    an underage male student.            Rubin worked at the Multi-Cultural Charter
    School on North Broad Street.”            Opinion Pursuant to Pa.R.A.P. 1925(a),
    1/20/16, at 2 (“1925(a) Op.”).
    On September 30, 2014, Eyewitness News aired the following
    statement:
    We would like to correct a story we reported yesterday.
    We reported that a police supervisor at the Philadelphia
    Multi-Cultural Academy Charter School was fired over
    allegations that he sexually abused a male student at the
    school.
    According to the school’s principal, the supervisor’s
    contract was not renewed by the school. But the principal
    says the supervisor was never accused of sexual abuse of
    any student, and his separation from the school did not
    have anything to do with any allegations of abuse.
    ____________________________________________
    1
    May was named as a defendant in Rubin’s amended complaint but
    was not named as an appellee in Rubin’s notice of appeal. Not. of App.,
    10/28/15.
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    Sources now tell us that Philadelphia Police Special Victims
    Unit has no record of any investigation or charges
    involving the police supervisor.
    We apologize for the error.
    
    Id. at 2.2
    On May 8, 2015, Rubin filed an            amended complaint alleging
    defamation and false light invasion of privacy claims against both CBS and
    May. On May 18, 2015, CBS and May filed an answer with new matter. The
    new matter referenced, and attached, the September 13, 2014, termination
    letter to Rubin from James Higgins, MACS’ principal. The letter provided as
    follows:
    Dear Officer Rubin:
    This letter is in reference to your employment at [MACS]
    as a School Police Officer.
    As we discussed this past Thursday, September 11, some
    serious allegations have been made against you, which are
    now being investigated by police. On Thursday, you were
    immediately suspended indefinitely, without compensation,
    and MACS has been conducting its own investigation of
    these allegations, independent of the police probe.
    While we have yet to complete our investigation, we have
    determined that your behavior, at the very least, and even
    by your own admission, was unbecoming of a school police
    officer and a public employee.
    You have been warned in writing about fraternizing with
    minors, and you have acknowledged that you understood
    that this type of behavior would not be tolerated again.
    ____________________________________________
    2
    According to Rubin’s amended complaint, the original report
    remained on CBS’s website for at least two days after the correction aired.
    Am. Compl., 5/8/15, ¶ 19.
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    Because of your failure to honor this expectation, we have
    decided that your employment with MACS will not be
    renewed for the 2014-2015 school year, and as a result, is
    hereby terminated, effective immediately.
    We thank you for your service to our school and wish you
    the best in your future endeavors.
    Ans. to Am. Compl. with New Mattter, Ex. K, 5/18/15.
    On June 7, 2015, Rubin filed a reply to the new matter. Thereafter, on
    August 25, 2015, CBS and May filed a motion for judgment on the pleadings,
    alleging that Rubin could not meet his burden of demonstrating that the
    news report was materially false, and that because the report was
    substantially true it was non-actionable as a matter of law. Mot. for Judg.
    on Pleadings, 8/25/15, at 2, 8.     On September 17, 2015, Rubin filed a
    response. On October 20, 2015, the trial court granted the motion, although
    on different grounds than those asserted by CBS and May.        This appeal
    followed.
    Rubin raises the following issue on appeal: “Upon a Motion for
    Judgment on the Pleadings, did the Court of Common Pleas[] err in holding
    that Rubin – a private actor – did not present a cognizable claim of
    defamation or false light under any standard when the above-referenced
    publication was ultimately admitted false?” Rubin’s Br. at 8.
    Our scope and standard of review of the granting of a motion for
    judgment on the pleadings is well-settled.
    Our scope of review on an appeal from the grant of
    judgment on the pleadings is plenary. Entry of judgment
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    on the pleadings is permitted under Pennsylvania Rule of
    Civil Procedure 1034, which provides that “after the
    pleadings are closed, but within such time as not to
    unreasonably delay trial, any party may move for
    judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion
    for judgment on the pleadings is similar to a demurrer. It
    may be entered when there are no disputed issues of fact
    and the moving party is entitled to judgment as a matter
    of law. In determining if there is a dispute as to facts, the
    court must confine its consideration to the pleadings and
    relevant documents. On appeal, we accept as true all well-
    pleaded allegations in the complaint.
    On appeal, our task is to determine whether the trial
    court’s ruling was based on a clear error of law or whether
    there were facts disclosed by the pleadings which should
    properly be tried before a jury or by a judge sitting without
    a jury.
    Neither party can be deemed to have
    admitted either conclusions of law or
    unjustified inferences. Moreover, in conducting
    its inquiry, the court should confine itself to the
    pleadings themselves and any documents or
    exhibits properly attached to them. It may not
    consider inadmissible evidence in determining
    a motion for judgment on the pleadings. Only
    when the moving party's case is clear and free
    from doubt such that a trial would prove
    fruitless will an appellate court affirm a motion
    for judgment on the pleadings.
    Kelly v. N’wide Ins. Co., [
    606 A.2d 470
    , 471-72
    (Pa.Super. 1992)] (quotations and citations omitted).
    Altoona Reg'l Health Sys. v. Schutt, 
    100 A.3d 260
    , 265 (Pa.Super. 2014)
    (some internal citations and quotation omitted).
    I.    Defamation
    We first examine Rubin’s defamation claim. The relevant burdens in a
    defamation action depend on the status of the plaintiff, the subject matter of
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    the communication, and the nature of the defendant. See generally Am.
    Future Sys., Inc. v. Better Bus. Bur. of Eastern Pa., 
    923 A.2d 389
    (Pa.
    2007); Lewis v. Phila. Newspapers, Inc., 
    833 A.2d 185
    (Pa.Super. 2003).
    In this case, all parties and the trial court agree that Rubin is a private-figure
    plaintiff, the subject matter of the report is a matter of public concern, and
    CBS is a media defendant.3          Accordingly, Rubin has the burden of proving
    both the falsity of the report as well as fault. Phila. Newspapers, Inc. v.
    Hepps, 
    475 U.S. 767
    , 776 (1986) (holding that in a defamation case against
    a media defendant for speech of public concern, there is “a constitutional
    requirement that the plaintiff bear the burden of showing falsity, as well as
    fault, before recovering damages”); see also 
    Lewis, 833 A.2d at 191
    .
    Rubin must prove that the report must was materially false:
    The law does not require perfect truth, so long as any
    inaccuracies do not render the substance and “gist” of the
    statements untrue.      See Masson v. New Yorker
    Magazine, Inc., 
    501 U.S. 496
    , 516, 517, 
    111 S. Ct. 2419
    ,
    
    115 L. Ed. 2d 447
    (1991). The “gist” of a statement is true
    if the effect upon a reader is the same regardless of the
    inaccuracy. 
    Id. ToDay's Housing
    v. Times Shamrock Commc'ns, Inc., 
    21 A.3d 1209
    ,
    1215 (Pa.Super. 2011).         Substantial truth “absolve[s] a defendant even if
    she cannot justify every word of the alleged defamatory matter; it is
    ____________________________________________
    3
    See 1925(a) Op. at 6. We agree as well.
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    sufficient if the substance of the charge be proved true, irrespective of slight
    inaccuracy in the details.” 
    Masson, 501 U.S. at 516-17
    (quotation omitted).
    As to fault, because Rubin is a private-figure plaintiff, he may recover
    by establishing that CBS acted negligently in publishing the report. Joseph
    v. Scranton Times L.P., 
    129 A.3d 404
    , 428 (Pa. 2015) (noting that where
    “plaintiffs   are   private[-]figure     plaintiffs,   this   Court   has   held   that
    Pennsylvania requires private figures to prove, at a minimum, negligence in
    a civil libel case”); see also Am. Future Sys., 
    Inc., 923 A.2d at 400
    .4
    The trial court recognized that “[i]n Pennsylvania, a private figure
    plaintiff may prove the element of falsity by either a negligence or actual
    malice standard.” 1925(a) Op. at 6. The court also stated:
    Unfortunately for [Rubin], it is of no moment whether
    or not he committed the actions alleged in his personnel
    file. The defamation requirement of “falsity” should not be
    taken at face value. Rather, [Rubin] must be able to show
    a reasonable case for either negligence or actual malice in
    Appellees’ reporting.
    
    Id. at 8.
    The trial court did not address the question briefed by the parties
    below – whether Rubin could establish that the report was materially false.
    Rather, it found that, whether or not the report was false, Rubin could not
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    4
    With regard to damages, “although a showing of simple fault
    suffice[s] to allow recovery for actual damages, even a private-figure
    plaintiff [is] required to show actual malice in order to recover presumed or
    punitive damages.” 
    Hepps, 475 U.S. at 774
    .
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    establish that CBS acted negligently or with actual malice. 
    Id. at 11.5
    We
    disagree.
    A. Falsity
    Whether Rubin can meet his burden of proving falsity turns on whether
    there exists a material difference between the report’s assertion that he was
    terminated “over allegations of child sexual abuse” and the actual basis for
    his termination.      The September 13, 2014 termination letter states that
    Rubin was terminated for failing to honor expectations following warnings
    about “fraternizing with minors.”              While the termination letter also
    references “serious allegations” levied against Rubin, the letter could be read
    to find that Rubin was terminated because he failed to follow a directive
    prohibiting    fraternization    with    minor   students,   not   because   of   the
    “allegations.” In other words, though the letter acknowledges the existence
    of allegations against Rubin, it does not state that those allegations were the
    basis for Rubin’s termination as the news report stated. Conversely, other
    documents attached to the pleadings support the inference that Rubin was
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    5
    The falsity and fault elements of defamation are separate inquiries,
    both of which the plaintiff bears the burden of proving when the statement
    in question relates to a matter of public concern. See 
    Lewis, 833 A.2d at 191
    . In its motion for judgment on the pleadings, CBS made no argument
    regarding Rubin’s ability to establish CBS’s negligence. Nor does it defend
    the trial court’s reasoning on appeal. Instead, it again argues that because
    the report was substantially true, Rubin could not meet his burden of
    demonstrating that the news report was materially false. See Mot. for Judg.
    on Pleadings, 8/25/15, at 2; CBS’s Br. at 14.
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    indeed fired based on “allegations of child sexual abuse.”6 At this stage of
    the proceedings, however, without the benefit of pretrial discovery, we
    cannot say with confidence that Rubin will be unable to establish the falsity
    of the CBS report.
    The question remains, however, whether Rubin will be able to
    establish that that falsity was material. In other words, was the “gist” of the
    publication – that Rubin was fired because of allegations of sexual abuse –
    sufficiently different from what may prove to be the truth – that he was fired
    for violating a warning about “fraternizing with minors” – to have a
    ____________________________________________
    6
    The trial court explained the events that preceded the termination
    letter as follows:
    Two days prior, three complaints were filed against
    [Rubin]. One alleged [Rubin] “sexually touch[ed]” and
    “flirt[ed]” with a male. See New Matter Exhibit G. Another
    alleged that Appellant rubbed a male’s chest, telling the
    male not to tell his mom. See New Matter Exhibit H. The
    final document was a lengthy email from a student’s
    mother to Princip[al] Higgins, alleging, among other
    things, “taking advantage and lewd acts on a minor child
    my son REDACTED.” See New Matter Exhibit J.
    [Rubin’s personnel file] also contains a screenshot of
    Facebook messages from “PhillyHip HopCop”, [Rubin’s]
    Facebook account, to a minor user which shows repeated
    requests from PhillyHip HopCop for the minor to call him.
    The requests were made on September 6 and 8, 2014
    between the times of 11:00 am and 2:00 pm. See New
    Matter Exhibit I.
    1925(a) Op. at 2 (some alterations in original).
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    materially different “effect upon a viewer”? ToDay's 
    Housing, 21 A.3d at 1215
    .7     While that difference may not be vast, we conclude that it is
    material. In the minds of viewers of the CBS broadcast, a termination based
    on an allegation of “the sexual abuse of an underage male student” surely
    could carry a greater sting than a termination for violating a personnel
    directive, even a directive about “fraternizing with minors.” Notably, for at
    least some viewers, the former could suggest that the school had
    investigated     and   credited     the   allegations    of   abuse,     something    the
    termination letter itself expressly disavows.
    B. Fault
    Based on the foregoing analysis, we also disagree with the trial court’s
    determination that “the facts could not reasonably support a finding of
    negligence     or   malice    because     [Rubin’s]     personnel      file   corroborated
    Appellees’ communication.” 1925(a) Op. at 11. The pleadings and attached
    documents do not make clear either the nature or the source of the
    information CBS possessed prior to publication.               Accordingly, as with the
    falsity issue, there is not enough information at this stage in the proceedings
    to say with confidence that Rubin will be unable to establish that CBS acted
    negligently or maliciously in publishing the report.                     If the as-yet-
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    7
    Of course, further discovery, including depositions of relevant school
    officials, may very well establish that, despite Principal Higgins’ post-
    publication denial of the report’s accuracy, the basis for Rubin’s termination
    was indeed the allegations of abuse.
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    undetermined facts support Rubin’s claim that he was not terminated “over
    allegations of child sexual abuse,” then he may be able to establish CBS’s
    negligence or malice in publishing the report. Of course, even if he is able to
    prove falsity, discovery may establish that he is unable to prove that CBS
    acted with the requisite fault.8
    II.    False Light
    We next turn to Rubin’s claim for false light invasion of privacy, which
    the trial court concluded must also fail. In Pennsylvania, a claim for false
    light invasion of privacy requires that: “(a) the false light in which the other
    ____________________________________________
    8
    The trial court focused on the documents in Rubin’s personnel file,
    which it held preclude a finding that CBS acted with fault. But CBS
    acknowledges that it did not obtain Rubin’s personnel file until after Rubin
    filed suit. CBS’s Br. at 11. Therefore, the documents themselves cannot
    stand as an absolute bar to a finding that CBS acted negligently (or with
    actual malice) in publishing the report. The trial court’s opinion, responding
    to Rubin’s reliance on Principal Higgins’ post-publication denial, focused on
    the Pennsylvania Supreme Court’s decision in Curran v. Philadelphia
    Newspapers, Inc., 
    439 A.2d 652
    (Pa. 1981). In Curran, the Court found
    that “neither the pre-publication denials nor the refusal to comment served
    to cast sufficient doubt upon the veracity of the . . . publication to make the
    issue of actual malice a question for a jury.” 
    Id. at 660.
    The Court stated
    that the pre-publication statements, when weighed against information
    provided by the newspaper’s source, “could reasonably have been dismissed
    as subjective statements not impeaching the integrity of the information.”
    
    Id. Here, the
    trial court, after emphasizing that Principal Higgins contacted
    CBS only after the broadcast, opined that even if Principal Higgins had
    contacted CBS before publication, his denial could have been dismissed by
    CBS as a subjective statement not impeaching the integrity of Rubin’s
    personnel file. 1925(a) Op. at 10. While the trial court may be correct that
    a post-publication denial sheds little light on the publisher’s fault at the time
    of publication, that observation does not alter our analysis.
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    was placed would be highly offensive to a reasonable person, and (b) the
    actor had knowledge of or acted in reckless disregard as to the falsity of the
    publicized matter[9] and the false light in which the other would be placed.”
    Krajewski v. Gusoff, 
    53 A.3d 793
    , 805–06 (Pa.Super. 2012) (quoting
    Restatement (Second) of Torts § 652E). “[U]nlike the law of defamation, . .
    . false light invasion of privacy offers redress not merely for the publication
    of matters that are provably false, but also for those that, although true, are
    selectively publicized in a manner creating a false impression.” 
    Id. at 806.
    The trial court concluded that the “admitted facts cannot support a
    finding of knowledge of or reckless disregard as to the falsity of the
    publicized matter” because CBS’s report accurately “summarized [Rubin’s]
    termination letter, which was found in [Rubin’s] personnel file that contained
    multiple corroborating documents.” 1925(a) Op. at 13. We disagree. As we
    stated in our analysis of Rubin’s defamation claim, there is not enough
    information at this stage in the proceedings to say with confidence that
    Rubin will be unable to establish that CBS acted with actual malice.
    Accordingly, we reverse the trial court’s order granting CBS’s motion
    for judgment on the pleadings and remand for further proceedings
    consistent with this memorandum.
    ____________________________________________
    9
    The required standard of fault in a false light claim is thus actual
    malice. See Time, Inc. v. Hill, 
    385 U.S. 374
    , 387 (1967) (defining actual
    malice as “knowledge that the statements are false or in reckless disregard
    of the truth”).
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    Order reversed. Case remanded. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/13/2017
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