T. Joseph v. The Scranton Times, Aplt , 634 Pa. 35 ( 2015 )

[J-35-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
THOMAS A. JOSEPH, THOMAS J. : No. 135 MAP 2014
JOSEPH, ACUMARK, INC., AIRPORT :
LIMOUSINE AND TAXI SERVICE, INC.,
: Appeal from the Order of Superior Court at
: No. 929 MDA 2012 dated March 11, 2014,
Appellees : Reconsideration Denied May 13, 2014,
: Vacating and Remanding the decision of
: the Luzerne County Court of Common
v. : Pleas, Civil Division, at No. 2002-3816C
: judgment entered April 23, 2012.
:
THE SCRANTON TIMES L.P., THE : ARGUED: May 6, 2015
TIMES PARTNER, JAMES CONMY AND :
EDWARD LEWIS, :
:
Appellants :
OPINION
MR. JUSTICE STEVENS DECIDED: November 20, 2015
This discretionary appeal concerns a defamation case wherein The Scranton
Times L.P., The Times Partner, James Conmy, and Edward Lewis (collectively “the
Media Defendants”)1 appeal from an order of the Superior Court, which affirmed in part
and reversed in part the decision of the Honorable Joseph Van Jura of the Court of
Common Pleas of Luzerne County and granted Thomas A. Joseph, Thomas J. Joseph,
1 Edward J. Lynett, Jr., George V. Lynett, Cecelia Lynett Haggerty, The Scranton Times,
Inc., Shamrock Communications, Inc., and ZYXW, Inc. were originally included as
defendants. However, prior to trial, the parties stipulated to the dismissal of all claims
against these defendants.
Acumark, Inc., and Airport Limousine and Taxi Service, Inc. (collectively “Appellees”) a
new trial. For the reasons discussed in this opinion, we conclude the Superior Court
erred in granting Appellees a new trial, and therefore, we reverse.
I. Factual and Procedural Background
This matter arises out of a series of articles written by James Conmy (“Conmy”)
and Edward Lewis (“Lewis”) which appeared from June 1, 2001, to October 10, 2001, in
the Citizens’ Voice, a newspaper in the Wilkes-Barre/Scranton area owned by The
Scranton Times L.P.2 The articles reported about the existence of a federal criminal
investigation into the alleged ties of William D’Elia (“D’Elia”), the reputed head of the
Bufalino crime family of northeastern Pennsylvania, and Thomas A. Joseph, Sr. (“Joseph,
Sr.”) to organized crime activities. The articles included information related to, inter alia,
the May 31, 2001, execution of search warrants by a large contingent of federal agents
and state troopers at the Wilkes-Barre residence of Joseph, Sr., the office of Joseph, Sr.’s
business, Acumark, Inc. (“Acumark”), the residence of Samuel Marranca (“Marranca”),
the residence of Jeanne Stanton, and the residence of D’Elia. Specifically, the trial court
summarized the challenged articles as follows:
While the Citizens’ Voice published ten articles from June 1 to
October 10, 2001, [Appellees] agree that the first two articles were not
defamatory. The remaining eight articles at issue are summarized below.
The article of June 5, 2001, written by . . . Comny [sic] and Lewis,
indicates that, according to “a source[,]”[ ] the reason for the search
2 As indicated in detail infra, a non-jury trial in this matter was originally held before
former Judge Mark A. Ciavarella. However, in 2009, we vacated former Judge
Ciavarella’s verdict, judgment, and all substantive orders, and we remanded for a new
trial with a new judge. As our remand in this matter voided the prior trial court
proceedings, we have set forth the facts as found by Judge Van Jura following the second
trial.
[J-35-2015] - 2
warrants of May 31 was a money-laundering [sic] scheme involving “three
main players” whose residences were searched, . . . Acumark and “a
limousine/taxi service in Pittston Township[.]”[ ] The article indicates that
money was also laundered through a “now-defunct weekly newspaper
called The Metro[.]”[ ] The article references D’Elia, La Cosa Nostra Crime
Family[,] and reputed mobsters Russell Bufalino and Ralph Natale. The
article contains the photograph of only one person: Joseph, Sr. The
article contains confirmation from Joseph, Sr.’s civil attorney that records
were removed from Acumark’s Pittston office, followed by an assertion
based on an unnamed source, that records of The Metro were seized from
1303 Wyoming Avenue.
There were no further articles until two months later.
On August 5, 2001, the Citizens’ Voice published an article written by
. . . Conmy and Lewis. The article asserts, without indicating a source, that
arrests at a former Avoca bar (Lavelle’s Pub) three years before are
connected to the money laundering investigation. In the next paragraph,
the article states that a limousine and taxi service based at both the
Wilkes-Barre/Scranton and Lehigh Valley [I]nternational [A]irports is under
federal focus for transporting money, drugs, prostitutes[,] and guns to and
from Atlantic City, Philadelphia, and New York. It is followed by another
paragraph describing how Lavelle’s Pub was used for the purposes of the
use and distribution of cocaine. After several paragraphs about Lavelle’s
Pub, the article describes how prostitutes from an escort service operated
by Al Carpinet, Jr., were used to entertain clients, followed by assertions,
without attribution to a source, that a federal grand jury is investigating
information that as much as $3 million was laundered through The Metro
and ending with a paragraph about the above-described May 31 searches.
The gist of the article is that the investigations of Lavelle’s Pub and Al
Carpinet, Jr., and the purported investigations of an airport taxi and
limousine service that is transporting money, drugs, prostitutes, and guns
and of The Metro are related to the searches of May 31, 2001. Nowhere in
the article is it indicated that the assertions are only allegations, and
nowhere is/are the source(s) of the assertions indicated.
On August 5, 2001, . . . Lewis authored a separate article headlined
“Firearms dealer denies involvement in alleged money laundering scheme”
relating to an alleged firearms dealer, Gus Salazar [(“Salazar”)], and
indicating that both Salazar and Joseph, Sr., collect guns and use the same
attorney. The article concludes by stating that the money laundering
investigation is related to the investigation of Salazar. The parties agreed
that neither side would call Salazar as a witness at trial, and stipulated that
his testimony at the prior trial . . . would be excluded from consideration in
this trial. This was done.
On August 6, 2001, the Citizens’ Voice published an article written by
. . . Conmy and Lewis on page 3 entitled “Probe investigating pub clientele”
which was continued on page 37 under the heading “Probe: Customers
under scrutiny[.]”[ ] The article indicates that, according to “an investigative
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source[,]”[ ] a frequent visitor at Lavelle’s Pub “is a relative to one of three
persons who received a target letter” from a Harrisburg federal grand jury
investigating money laundering and indicates that the [sic] “the investigation
expanded to include prostitution, gun running[,] and further drug
trafficking[.]”[ ] At the continuation of the article on page 37, after repeating
earlier assertions that The Metro, “formerly owned by Joseph[,] (Sr.)” was
used to launder $3 million, the article asserts that a taxi and limousine
service owned by Joseph, Sr., and [Thomas J. Joseph, Jr. (“Joseph, Jr.”)],
“is being looked at as a means to transport money, drugs, prostitutes[,] and
guns to and from Atlantic City, Philadelphia[,] and New York City, several
reliable sources said[.]”[ ] The article indicates: “A source said that
although the transportation service at the Wilkes-Barre/Scranton
International Airport promotes limousines, no such vehicles exist. The
source continued to explain that the money, drugs[,] and guns are kept in
attach[é] cases in the trunks of the vehicles when they transport the goods
to the larger cities[.]”[ ]
The next day, August 8, 2001, the Citizens’ Voice published an
article written by . . . Lewis indicating that Bob Butts [(“Butts”)], who
published The Metro with Joseph, Sr., “didn’t see Joseph do anything
wrong” and indicating again that, during the searches of May 31, 2001,
records of The Metro were found in an office purportedly leased by . . .
Marranca and that one of the other individuals whose home was searched,
D’Elia, “is a reputed mob boss[.]”[ ] The article indicates that Joseph, Sr.,
Marranca, and D’Elia “are at the center” of a federal investigation into
money laundering that “expanded in recent weeks when federal
investigators learned about drug-trafficking, prostitution, and gun running to
and from Atlantic City and other larger cities[.]”[ ] Otherwise, the article
purports to be about Butts’ disclaimers that The Metro was profitable.
Four days later, on August 12, 2001, the Citizens’ Voice published
an article by Lewis entitled “Report: Judge Barrasse linked to IRS
investigation . . . Officials say he is not connected to former Lavelle’s Pub
Avoca[.]”[ ] Citing “several reliable sources[,]”[ ] the article repeats the
substance of the assertions that a cocaine ring was operating out of
Lavelle’s Pub and indicates that “Lavelle’s Pub was not involved in the
laundering of money” but is connected to the money laundering
investigation and to an investigation of Al Carpinet, Jr., because of the pub’s
clientele. The article indicates that one of at least three persons who sold
cocaine at the pub “is related to two of the three persons who received
target letters[.]”[ ] The article concludes by describing the May 31
searches of Marranca’s, D’Elia’s[,] and Joseph, Sr.’s residences and of
Acumark and concludes by asserting that “a source close to the
investigation” said that close to $3 million was laundered through The
Metro.
The next article by Lewis was published by the Citizens’ Voice on
August 20, 2001. The article states, “a source close to the probe said” that
the money laundering investigation “has expanded to include possible
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abuse of power and political corruption for personal gain . . . It also includes
prostitution involving alleged pimp Al Carpinet, Jr. and drug trafficking
similar to the 1986 federal prosecution of Frederick Luytjes[,]”[ ] indicating
that the federal grand jury investigation of money laundering through The
Metro and Acumark is being headed by the same prosecutor . . . who
prosecuted Luytjes. The laundered money, according to a source, came
from overfill at landfills in the state. The new information . . . was “learned
soon after the searches on May 31 on several homes and businesses,
including Acumark . . . .”
The final article, written by Lewis, was published by the Citizens’
Voice on October 10, 2001[,] and was headlined “3 witnesses subpoenaed
in money-laundering [sic] investigation[.]”[ ] Isolated portions of the article
are offset as follows: “QuickInfo - 1 of those ordered to testify before a grand
jury in Harrisburg had ties to an Avoca tavern that was closed in 1998
following a federal and state probe. Part of the investigation centers on
reputed crime boss . . . D’Elia of Hughestown[,]” and “THIS [sic]
investigation took off since May 31.” The article indicates that at least
three persons have been subpoenaed to the grand jury investigating money
laundering and at least one of them has ties to Lavelle’s Pub. The article
asserts that the grand jury “began hearing testimony from witnesses . . .
following nine months of video surveillance on key suspects[.]”[ ] After
recapping the May 31, 2001[,] searches and indicating that a car occupied
by D’Elia and Marranca was also searched, the article indicates, in the
same paragraph, that the IRS was investigating more than two years before
obtaining a court order for video surveillance and that information has been
received suggesting that as much as $3 million was laundered through The
Metro. The article republishes the assertion that most, if not all, of the
laundered money was from overfill and the selling of open airspace at
several landfills in Pennsylvania. According to the article, “Investigators
also ‘stumbled’ upon drug-trafficking, prostitution, gambling[,] and
gun-running[.]”[ ]
Trial Court Opinion filed 12/8/11 at 3-7 (citation to record, footnotes, and emphasis
omitted).
On May 22, 2002, Appellees commenced a civil action against the Media
Defendants pursuant to the Uniform Single Publication Act (“the Act”), 42 Pa.C.S. §§
8341-8345. The complaint contained eight counts, including one count of
defamation-libel and one count of false light invasion of privacy on behalf of each
Appellee against the Media Defendants based upon the articles published in the Citizens’
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Voice. On May 16, 2006, the matter proceeded to a non-jury trial before the former
Judge Ciavarella, who at the conclusion of the trial entered a verdict in favor of Appellees
and against the Media Defendants. Specifically, former Judge Ciavarella awarded
compensatory damages in the amount of $2 million to Joseph, Sr. and $1.5 million to
Acumark.
On appeal, a three-judge Superior Court panel affirmed former Judge Ciavarella’s
judgment. Joseph v. Scranton Times L.P., 959 A.2d 322 (Pa. Super. 2008) (“Joseph I”).
Thereafter, the Media Defendants filed in this Court an Application for Extraordinary
Relief, and exercising our King’s Bench authority, we vacated former Judge Ciavarella’s
verdict, judgment, and all substantive orders entered in the case based on the
appearance of judicial impropriety in the assignment and trial.3 Joseph v. Scranton
Times L.P., 604 Pa. 677, 987 A.2d 633 (2009) (per curiam order). We remanded the
matter to the Court of Common Pleas of Luzerne County for the assignment of a new
judge for a new trial. See id.
Upon remand, Judge Van Jura was assigned the case, and in entertaining motions
for summary judgment, he dismissed Airport Limousine and Taxi Service, Inc.’s (“Airport
3 A federal jury convicted former Judge Ciavarella of numerous crimes, including
racketeering and money laundering, resulting from the so-called “Kids for Cash” scandal
which erupted in Luzerne County in late 2008. In connection therewith, former Judge
Ciavarella and his fellow judge, Michael Conahan, received over $2 million in illegal
payments from Robert Mericle, the real estate developer of a private, for-profit juvenile
detention facility, and attorney Robert Powell, a co-owner of the facility. See United
States v. Ciavarella, 716 F.3d 705, 712-15 (3d Cir. 2013), cert. denied, ___ U.S. ___, 134
S. Ct. 1491 (2014). On August 11, 2011, former Judge Ciavarella was sentenced to
twenty-eight years in federal prison, and on May 24, 2013, the Third Circuit Court of
Appeals vacated his conviction on one count but affirmed his convictions and sentences
as to the remaining counts.
[J-35-2015] - 6
Limousine”) and Acumark’s false light invasion of privacy claims. In May of 2011, a
non-jury trial on the remaining claims was held before Judge Van Jura, who ultimately
entered a verdict in favor of the Media Defendants and against Appellees.
In support of his verdict, in a December 8, 2011, opinion, Judge Van Jura began
his analysis by examining the Act and setting forth the elements required to be proven by
a plaintiff in a defamation case, as well as the elements the defense may prove in order to
rebut a prima facie case of defamation. Trial Court Opinion filed 12/8/11 at 10-11.
Additionally, he held Appellees, as plaintiffs, were required to prove the statements at
issue were false. Id. at 12.
Judge Van Jura indicated that, in determining the appropriate standard of fault in
order to satisfy the First Amendment strictures and the Pennsylvania Constitution’s
protections in the area of reputational interests, a court must first consider whether the
plaintiff is a public or private figure. Id. at 12-22. In this vein, he recognized, if the
plaintiff is a public figure, for a limited purpose or otherwise, in order to establish liability,
the plaintiff must prove the defendant made a false and defamatory statement with actual
malice, i.e., with knowledge the statement was false or with reckless disregard of its
falsity. Id. at 12-13. However, he further recognized, by contrast, if the plaintiff is a
private figure, the plaintiff may establish liability by proving the defendant acted
negligently rather than with actual malice. Id. at 13.
In applying the law to the facts and making credibility determinations, Judge Van
Jura rejected the Media Defendants’ claim that all or some of Appellees were all purpose
public or limited purpose public figures. Id. at 13-22. Thus, he held the evidence
[J-35-2015] - 7
revealed Appellees were private figures, and therefore, Appellees were required to
demonstrate the Media Defendants published false statements negligently. Id.
As to whether Appellees met their burdens, Judge Van Jura held the articles
contained false statements. He found there was “[n]o credible evidence . . . admitted at
trial demonstrating that any of the ‘defamatory statements’ published by the Citizens’
Voice concerning [Appellees], after reporting the initial searches of Acumark and Joseph,
Sr.’s home, were true.” Id. at 20. Further, while the Media Defendants argued the
articles reported on a government investigation without accusing Appellees of committing
crimes, Judge Van Jura found “there was no credible evidence admitted at trial that the
government was conducting an investigation that embraced the elements and events that
were reported in the Citizens’ Voice.” Id. at 20 n.13.
For example, Judge Van Jura noted:
[T]here was no evidence that Joseph, Sr., had ever been sent a target letter,
as clearly implied to the average reader of the Citizens’ Voice; no evidence
that Joseph, Sr., had ever been the subject of video surveillance, as clearly
implied to the average reader by the Citizens’ Voice; no evidence that
[Appellees] had any connection to the local pub that was a focal point of a
local drug ring; no evidence that Joseph, Sr.’s airport transportation
businesses were being investigated for drug trafficking, prostitution, gun
running[,] or money laundering; no evidence that any of the [Appellees]
were ever under investigation for political corruption; and no evidence that
any [Appellee] was in imminent danger of being indicted. When an
indictment was handed down in May 2006, by the grand jury that [the Media
Defendants] contend was conducting the investigation upon which [the
Media Defendants] were reporting in the articles, that indictment never
mentioned [Appellees] or any of Joseph, Sr.’s other businesses.
Id. (citation to record omitted).
However, Judge Van Jura did not explicitly opine as to whether Appellees met their
burden of proving, at a minimum, the Media Defendants negligently published the false
statements. Instead, Judge Van Jura opined Appellees were not entitled to recover for
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defamation since they failed to prove with legal sufficiency “either general or special
damages or harm” caused by the Citizens’ Voice articles. Id. at 22. He noted one
category of damages, which is recoverable in defamation claims, includes “‘general
damages’ such as ‘impairment of reputation and standing in the community, personal
humiliation, and mental anguish and suffering.’” Id. at 23 (quotation omitted). He
reasoned “[h]arm to reputation is ‘judged by the reaction of other persons in the
community and not by the party’s self-estimation.’” Id. at 24 (quotation omitted). He
noted it was proper for the court to consider as well whether a plaintiff’s harm to reputation
was caused by the articles at issue or any other factor. Id.
Additionally, Judge Van Jura noted another category of damages is “‘special
damages’ which are ‘actual and concrete damages capable of being estimated in money,
established by specific instances such as actual loss due to withdrawal of trade of
particular customers, or actual loss due to refusal to credit by specific persons, all
expressed in figures.’” Id. (quotation omitted). He noted “[w]here special damages are
claimed, the plaintiffs’ belief as to lost business is not enough; rather they must be proven
by the testimony of third parties that the specific statements complained of caused them
to withdraw their business.” Id. (citations omitted). Applying these standards to the
evidence, Judge Van Jura specifically opined “none of the [Appellees] have credibly
shown, with legal sufficiency, any loss caused by the articles at issue, published in the
Citizen[s’] Voice.” Id. at 25.
Specifically, as it relates to Joseph, Sr.’s claim for general damages, Judge Van
Jura highlighted that while Joseph, Sr. testified he lost friends, his social life was impaired,
and he curtailed his social activities, the credible testimony established such occurred as
[J-35-2015] - 9
a result of injuries Joseph, Sr. sustained in an automobile accident as opposed to the
articles in the Citizens’ Voice. Id. He noted that, “[i]n his accident case, Joseph, Sr.
never mentioned the Citizen[s’] Voice [a]rticles as the cause of his harm.” Id. Also,
Judge Van Jura concluded that, although Joseph, Sr. testified a local dinner club would
not give him reservations, Joseph, Sr. testified in his July 11, 2001, deposition “that he
had stopped attending the [dinner club] because of his injuries from the accident.” Id. at
26 (citations to record omitted). Moreover, he concluded the logs from the dinner club
revealed Joseph, Sr. continued to dine at the dinner club “during the entire period of the
[Citizens’ Voice] [a]rticles and after.” Id. (citations to record omitted).
Judge Van Jura specifically held “[t]his Court does not find, based upon an
exhaustive review of the evidence at trial, that Joseph[,] Sr.’s testimony with respect to the
claimed damages being caused by the publication of the Citizen[s]’ Voice articles to be
credible or legally sufficient.” Id. (emphasis omitted). Judge Van Jura reasoned:
The testimony of Leah Joseph was not sufficient, nor sufficiently credible, to
prove that Joseph[,] Sr.’s alleged loss of social enjoyment was caused by
the Citizen[s’] Voice articles. Neither Joseph[,] Sr., nor Leah Joseph,
proved that the alleged loss of social enjoyment was specifically and solely
attributable to the allegedly false and defamatory statements complained of
in the Citizen[s’] Voice articles or that it was different in kind, quantity or
quality[ ] from the loss of social enjoyment previously claimed by Joseph[,]
Sr. in connection with his 1997 automobile accident for which he received
$450,000[.]
Id. at 27-28 (citation to record omitted).
Moreover, as to Joseph, Sr.’s claim of reputational damages, Judge Van Jura
rejected the claim for several reasons. Initially, he opined Joseph, Sr.’s claim of
reputational harm was predicated on statements made in the August articles which were
not “of and concerning” him. Id. at 26. In this regard, Judge Van Jura noted the August
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articles, which reported about the airport limousine business being investigated for
crimes, were not “of and concerning” Joseph, Sr. Id. Therefore, inasmuch as Joseph,
Sr. claimed the “real harm” to his reputation occurred in response to the August articles,
Judge Van Jura concluded he failed to prove the articles caused him reputational injuries.
Id.
Additionally, the Judge specifically highlighted he did “not find credible Joseph[,]
Sr.’s testimony that none of the true statements in the Citizen[s’] Voice articles were the
cause of any reputational damages to him.” Id. (emphasis omitted). Likewise, Judge
Van Jura indicated he considered the testimony of Joseph, Sr.’s daughter, Leah Joseph,
and found her testimony “did not credibly indicate that any claimed damage to [her
father’s] reputation in the community was caused by the publication of the article in the
Citizen[s’] Voice and not by something else[.]” Id.
Judge Van Jura concluded Joseph, Sr. presented no evidence that anyone in the
community “cared about his alleged ties to organized crime, his long friendship with
reputed mobster D’Elia or the fact that he was being investigated by federal and state
authorities for money laundering, tax evasion[,] and illegal betting.” Id. at 27 (citations to
record omitted). He further concluded Joseph, Sr. presented no testimony from the
community that his reputation was damaged. Id. Judge Van Jura noted witnesses,
including friends and employees who testified for Joseph, Sr. at trial, testified
“unequivocally” that nothing in the articles caused them to have a diminished view of
Joseph, Sr.’s reputation. Id.
As it relates to Joseph, Jr.’s defamation claim, Judge Van Jura held a single
statement in the articles was “of and concerning” Joseph, Jr., who failed to demonstrate
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the statement diminished his reputation in the community. Id. at 28. The Judge
acknowledged Joseph, Jr. testified he ceased using his last name in public approximately
six months prior to the 2011 trial; however, the Judge concluded he offered no evidence
the decision to do so was caused by the Citizens’ Voice article. Id. Moreover, Judge
Van Jura noted Joseph, Jr. did not introduce any testimony that anyone’s view of Joseph,
Jr.’s reputation was changed because of the articles, and the Judge found that, although
Joseph, Jr.’s fiancé testified “friends pull away when she mentions Joseph[,] Jr.’s name,”
she did not establish such a reaction occurs because of the single statement contained in
the Citizens’ Voice. Id. (citation to record omitted).
As it relates to Acumark and Airport Limousine, Judge Van Jura held they “failed to
prove their claims for general or special damages by a preponderance of the evidence.”
Id. at 28-29 (emphasis omitted). Judge Van Jura concluded no witness testified the
businesses had a diminished reputation as a result of the articles and, in fact, no evidence
was presented from any witness concerning the businesses’ reputation in the community.
Id. at 29.
As to Airport Limousine, the Judge noted Joseph, Sr. offered testimony indicating
he advised the Public Utility Commission (“PUC”) that Airport Limousine had remained in
business despite the poor economic effect which the 9/11 terrorist attacks had on the
transportation industry nationally and locally, resulting in a reduction of people travelling
from the airport, as well as the fact Airport Limousine’s former largest customer, U.S.
Airways, went bankrupt, leaving an account payable of $18,000. Id. However, the
Judge noted Joseph, Sr. did not inform the PUC that Airport Limousine had been affected
in any manner by the Citizens’ Voice articles. Id.
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As to Acumark, Judge Van Jura indicated that when Joseph, Sr. was attempting to
secure financial assistance for his daughter to attend college, he informed a bank official
that profits at Acumark had been down due to “‘overcapacity and reduced demand’ in the
printing industry[.]” Id. Judge Van Jura found “[a]t no point in time, however, after the
publishing of the Citizen[s’] Voice articles, did Joseph[,] Sr. ever publicly blame the
Citizen[s’] Voice articles for any negative impact on his businesses, Acumark [or] Airport
Limousine[.]” Id. at 29-30. The Judge further found “[t]he one and only time that
Joseph[,] Sr. has ever blamed the articles for harming his businesses was within the
context of this litigation, and at least for the purpose of this litigation, he blames all of his
problems on the Citizen[s’] Voice articles [sic].” Id. at 30 (citation to record omitted).
However, Judge Van Jura indicated Joseph, Sr. and Joseph, Jr. admitted articles
appearing in the Times Leader were harmful to the businesses’ reputation. Id.
As to special damages, Judge Van Jura concluded Airport Limousine made no
separate claim for special damages, but rather, its claim was subsumed within Acumark’s
claim. Judge Van Jura concluded it was possible for Appellees to present evidence
separately for Airport Limousine; however, having failed to do so, “Airport Limousine
failed to credibly prove any quantifiable harm[.]” Id. at 31.
Judge Van Jura acknowledged Appellees presented expert testimony of special
damages for lost revenue as to Acumark but held Appellees “failed to prove the amount of
its alleged lost revenue with a reasonable degree of certainty and did not prove that the
alleged lost revenue was proximately caused by the alleged defamatory statements in the
Citizen[s’] Voice articles.” Id. at 32. In this vein, although Appellees’ expert testified
Acumark had the potential for greater revenue from 2001 to 2009, Judge Van Jura
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concluded Appellees’ expert did not offer an opinion as to what caused Acumark not to
perform at its alleged potential. Id. at 32-33. In fact, the Judge held “[Appellees] did not
offer any competent evidence to show any of the alleged lost profits [revenues] were
proximately caused by the Citizen[s’] Voice articles.” Id. at 33 (citation omitted). He
further held speculation “is not a legally sufficient substitute for [Appellees’] failure to
produce evidence on causation.” Id. (citation omitted). Judge Van Jura opined
Appellees’ expert’s opinion, which was not based on specific facts or data, did not assist
the court in determining what portion of “Acumark’s claimed ‘loss potential’ could be
attributed to the allegedly defamatory statements in the Citizen[s’] Voice articles in 2001
individually and/or as opposed to what could be attributed to other negative business
events and conditions that occurred between 2001 and 2009.” Id.
Additionally, Judge Van Jura noted that, in the litigation related to the injuries
Joseph, Sr. sustained in his automobile accident, Joseph, Sr. explained Acumark’s lack
of growth was due to the automobile accident. Id. at 34. The Judge concluded:
While [Appellees] claim that the articles linking [Appellees] to guns, drugs,
and prostitutes[ ] led to the loss of several of Joseph[,] Sr.’s customers,
including Adelphia Cable, North Penn Savings & Loan, CEO People
Helping People, the University of Scranton, St. Ann’s Media, Catholic
Golden Age Charities, and [the] Luzerne County Courthouse, [Appellees]
did not offer testimony from any of these customers indicating that they
withdrew or transferred their business because of the Citizens’ Voice
articles, nor was [Appellees’ expert] provided with documentation indicating
that these customers withdrew their business because of the Citizens’
Voice articles. The [Media Defendants’] expert . . . provided testimony and
documentation which analyzed the actual customer data and determined
that the business from these customers actually increased significantly in
the three years after the publication of the Citizens’ Voice articles.
Joseph[,] Sr. and Joseph[,] Jr. testified that Acumark and Airport
Limousine lost local customers as a result of the publicity associated with
the Citizens’ Voice articles. However, Acumark’s financial documents
reflect that 80% of Acumark’s revenue after the Citizens’ Voice articles
remained local in nature. Moreover, Joseph[,] Sr.’s claim that the articles
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caused him to lose lucrative local business was completely at odds with his
testimony, as part of his accident case, that he was forced to give up foreign
and national accounts, and instead take on less profitable business.
[Appellees] also claimed that they lost significant political customer
accounts. Other than their own testimony stating that Acumark had
significant political business in May 2001[,] and then no political business in
November 2001, no documents were introduced to substantiate this claim
and no specific account or customer was either credibly (1) identified or (2)
testified.
Id. at 34-35 (citations to record omitted).
Finally, Judge Van Jura concluded Joseph, Sr. and Joseph, Jr. did not satisfy their
burden of proving the elements necessary for false light invasion of privacy. In this
regard, relying on his analysis pertaining to Appellees’ defamation claims, the Judge
opined they failed to prove the Citizens’ Voice articles caused them any injury. Id. at 36.
Appellees filed post-trial motions seeking judgment notwithstanding the verdict
and/or a new trial. Since Judge Van Jura’s term had expired, the matter was re-assigned
to the Honorable Lesa S. Gelb, who summarily denied Appellees’ post-trial motions on
the basis that she “concurred with the 37 page Opinion of Judge Van Jura filed December
8, 2011[.]” Trial Court Opinion filed 6/1/12 at 1. Judgment was entered in favor of the
Media Defendants, and Appellees filed an appeal to the Superior Court.
On appeal, a three-judge Superior Court panel affirmed in part and reversed in
part, vacated the defense judgment, and remanded for further proceedings. Joseph v.
Scranton Times, L.P., 89 A.3d 251 (Pa. Super. 2014) (“Joseph II”), appeal granted, ___
Pa. ___, 105 A.3d 655 (2014). In so doing, the Superior Court began by indicating a
prior panel of the intermediate appellate court had summarized the facts and history of
the case previously in Joseph I. The Superior Court then quoted at length and relied
[J-35-2015] - 15
upon the factual and procedural history as it had been set forth in its previous panel’s
decision.4 Joseph II, 89 A.3d at 254-58 (quoting Joseph I, 959 A.2d at 328-33).
Turning to the issues raised on appeal, the Superior Court, citing to 42 Pa.C.S. §
8343(a), set forth the elements a plaintiff is required to prove in a claim of defamation.
Joseph II, 89 A.3d at 260. As to the special harm required by Section 8343(a)(6), the
Superior Court opined proof of this element “varies depending upon the type of
defamatory statement at issue.” Id. at 261. The Court concluded that, for libel cases,
Pennsylvania has adopted the Restatement (Second) of Torts § 569 which provides:
“‘[o]ne who falsely publishes matter defamatory of another in such manner as to make the
publication a libel is subject to liability to the other although no special harm results from
the publication.’” Id. (quoting Restatement (Second) of Torts § 569) (citing Agriss v.
Roadway Exp., Inc., 483 A.2d 456, 473 (Pa. Super. 1984)). Thus, the Superior Court
held “although the statute indicates that ‘special harm’ must be proven, our courts have
held that a libel plaintiff need not prove ‘special harm.’” Id.
In explaining this “apparent contradiction” between Section 8343 of the statute and
Section 569 of the Restatement, the Superior Court reasoned:
[T]he term “special harm” has different meanings in the statue and
Restatement. The term “special harm” as used in the statute has been
interpreted to mean “general damages” which are proven upon a showing
of “actual harm.” “Actual harm includes ‘impairment of reputation and
standing in the community, . . . personal humiliation, and mental anguish
and suffering.’”
4 As discussed infra, the Superior Court erred in quoting at length to and relying upon the
facts set forth in its previous panel’s decision since the facts in that opinion were derived
from proceedings held before former Judge Ciavarella, as opposed to the proceedings
held before Judge Van Jura.
[J-35-2015] - 16
As used in [S]ection 569 of the Restatement, the “special harm” that
a libel plaintiff need not show is actually “special damages.” “Special
damages” are “economic harm” or “pecuniary loss.”
Id. (quotation marks, quotations, and citations omitted).
Thus, the Court held: “in order to satisfy the ‘special harm’ element of a defamation
claim, a libel plaintiff need only show ‘actual harm’ to establish general damages. A libel
plaintiff need not show ‘special damages’ to satisfy the statutory burden of proving
‘special harm.’” Id. (footnote and emphasis omitted).
The Superior Court concluded the trial court acknowledged the elements required
for a defamation cause of action and entered its verdict in favor of the Media Defendants
on the basis that Appellees failed to meet their burden of proof as to actual harm. Id. at
262. After reviewing the parties’ arguments on appeal, the Superior Court held:
(A) the trial court determined that [plaintiffs] met their burden of proof as to
all elements except damages; (B) the trial court’s conclusions that [plaintiffs]
failed to prove general damages, i.e.[,] actual harm, is based upon
misapplication of the law; (C) the trial court erred in failing to make a factual
finding on whether [the Media Defendants] published the articles with actual
malice; (D) the trial court erred in dismissing [plaintiffs’] false light [invasion
of privacy] claims for want of proof of damages; and (E) the trial court’s
rejection of Acumark’s special damages claim is supported by the record
and is not against the weight of the evidence.
Id.
With regard to holding (A), the Superior Court reasoned the trial court concluded
the Media Defendants published the articles, the articles contained statements, which
were defamatory per se, all who received the publication understood the defamatory
meaning, and the defamatory statements were false. Id. at 262-63. The Superior Court
held the trial court’s findings as to these elements were supported by the record because
had the trial court not found that Appellees satisfied their burdens of proof as to liability, it
[J-35-2015] - 17
would not have reached the issue of whether Appellees suffered damages as a result of
the defamation. Id. Thus, the Superior Court held “in rendering its verdict in favor of
[the Media Defendants], the only proof the trial court found lacking from [Appellees] was
that of damages caused by [the Media Defendants’] libel.” Id.
With regard to holding (B), the Superior Court concluded the trial court’s verdict of
zero damages was erroneous. In so holding, the Court acknowledged the trial court had
explained in its opinion that Joseph, Sr. failed to meet his burden of proof as to harm to his
reputation because the trial court did not believe his or his daughter’s testimony in this
regard. Id. However, the Court noted general damages (actual harm) includes, in
addition to evidence of reputational harm, personal humiliation and mental anguish. Id.
The Court then concluded the trial court improperly ignored Leah Joseph’s, Joseph, Sr.’s,
and Joseph, Jr.’s testimony, which established Joseph, Sr. suffered emotional distress,
mental anguish, and personal humiliation as a result of the articles, and instead, the trial
court improperly focused solely on the question of reputational damage. Id. at 266
(setting forth specific testimony).
The Superior Court opined the trial court did not find the testimony related to
Joseph, Sr.’s personal humiliation and anguish to be incredible, but rather, ignored such
testimony completely and improperly focused solely on the question of reputational
damage. Id. Thus, concluding it was improper for the trial court to find in favor of the
Media Defendants without considering evidence of emotional distress, mental anguish,
and personal humiliation, the Superior Court held the trial court abused its discretion in
denying Appellees’ post-trial motion for a new trial as to damages. Id.
[J-35-2015] - 18
The Superior Court additionally concluded the trial court improperly denied
damages to Appellees on the basis that they failed to prove their reputational harm was
caused solely by the defamatory statements, and not by the fact as reported in the
Citizens’ Voice and elsewhere, that Joseph, Sr. and Acumark were subject to searches
during an alleged money laundering investigation and as a result to alleged connections
to organized crime. Id. In so holding, the Superior Court reasoned the trial court had
misapprehended the law on causation. Id. at 267. In this vein, the Court held the fact
“there were other causes for the damage to [Appellees’] reputations certainly impacts the
quantity of the damages for which [the Media Defendants] are liable; however, that does
not negate liability.” Id. Thus, the Superior Court found the trial court should have
focused on whether the defamatory statements played a substantial part in damaging
Appellees’ reputations instead of focusing on whether the defamatory statements were
the sole cause of such harm. Id. Accordingly, the Superior Court held the trial court
abused its discretion in denying Appellees’ post-trial motion for a new trial since the
verdict was based upon a misapplication of the law. Id. The Superior Court directed
that “[u]pon retrial, the fact finder must determine whether each of the four [Appellees]
suffered harm to his or its reputation for which the defamatory statements in the Citizens’
Voice articles were substantial causal factors.” Id.
Moreover, the Superior Court held the trial court should have considered whether
Joseph, Sr.’s reputation was harmed by the Citizens’ Voice August 6, 2001, article, which
reported about Airport Limousine’s involvement in illegally transporting money, drugs,
guns, and prostitutes, since the article was “of and concerning” Joseph, Sr. Id. at
267-68. The Superior Court noted, on the one hand, the trial court found Joseph, Sr.
[J-35-2015] - 19
was not entitled to reputational damages as to this article since the article was not “of or
concerning” Joseph, Sr. Id. at 267. Conversely, the trial court found Joseph, Jr. was
not entitled to reputational damages for the same article since he “did not bear his burden
of proof that the sole statement in the Citizens’ Voice articles that was actually about him
diminished his reputation in the community[.]” Id. at 268 (quotation to record omitted).
Thus, the Superior Court stated, “[i]n an apparent contradiction, the trial court did not find
that the article was not ‘of or concerning’ Joseph, Jr.” Id.
The Superior Court opined the trial court’s conclusion the defamatory statements
in the August 6, 2001, article were not “of and concerning” Joseph, Sr. was not only
inconsistent with the trial court’s determination as to Joseph, Jr., but it was also based on
a misapplication of the law. Id. In this regard, the Superior Court held the article “clearly
implie[d] that the Josephs are involved in the airport businesses’ criminal activity.” Id.
(citations omitted). Thus, the Court opined, to the extent the trial court failed to consider
whether the August 2001 article damaged Joseph, Sr.’s reputation, it had erred. Id.
With regard to holding (C), the Superior Court held, even absent proof of
compensatory damages, actual malice was a relevant inquiry in this case. The Court
noted proof of actual malice permits the fact finder to award punitive and presumed
damages, and consequently, the trial court erred in failing to make a finding as to whether
the Media Defendants published the defamatory articles with actual malice. Id. at 269.
As to punitive damages, the Court reasoned that, while the trial court correctly
determined Appellees, as private figures, were not obligated to prove actual malice in
order to recover compensatory damages, it failed to recognize Appellees were required to
prove actual malice for purposes of punitive damages. Id. Also, the Superior Court
[J-35-2015] - 20
found the trial court erred in failing to make any factual findings on the question of actual
malice and holding Appellees were not entitled to punitive damages because they all
failed to prove general damages. Id. In this regard, the Superior Court noted the trial
court misapplied the law as it related to general damages, as discussed supra, and in any
event, the trial court failed to recognize punitive damages may be warranted even though
the fact finder elects not to award compensatory damages. Id. at 269-70. Accordingly,
the Superior Court held “the question of actual malice, as it relates to [Appellees’] claims
for punitive damages, must be determined by the fact finder upon the retrial of this case.”
Id. at 270.
As to presumed damages, the Superior Court opined that if Appellees proved
actual malice, they would be entitled to presumed damages, alleviating the need to
establish actual harm. Id. In so ruling, the Court initially acknowledged that its previous
decision in Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 237 (Pa. Super. 1993),
“seems to suggest that compensatory damages are unavailable to a plaintiff in a
defamation per se action unless actual harm, i.e.[,] general damages, are proven.”
Joseph II, 89 A.3d at 271. However, the Superior Court noted, as pointed out by the
Third Circuit Court of Appeals, “‘[a]lthough Walker appears generally to foreclose
presumed damages under Pennsylvania law, it is not entirely clear whether presumed
damages remain available where the plaintiff proves actual malice.’” Id. at 271-72
(quoting Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 342 (3d Cir.
2005) (emphasis omitted)).
[J-35-2015] - 21
In further examining this issue, the Superior Court reviewed Pennsylvania
Suggested Standard Jury Instruction (Civil) § 17.180(B) (4th ed. 2011),5 and concluded
the instruction, with the proof of actual malice, entitles a defamation plaintiff to presumed
damages. Thus, noting the trial court failed to address the issue of actual malice, the
Superior Court concluded a new trial was required on this issue, as well.
As to holding (D), the Superior Court opined the trial court erred in entering a
verdict in favor of the Media Defendants on Appellees’ false light invasion of privacy
claims. In entering the verdict, the trial court pointed to its earlier finding that Appellees
failed to establish they suffered any damages as a result of the publication of the Citizens’
Voice articles. The Superior Court reasoned that, since “the trial court’s finding as to
damages on the defamation claims was erroneous[, it] invalidates the trial court’s
determination of the same issue as to the [false light] invasion of privacy claims.” Id. at
274. Accordingly, the Superior Court concluded a new trial was warranted as to
damages regarding the false light invasion of privacy claims. Id. at 274 n.14.
With regard to holding (E), the Superior Court held the trial court’s rejection of
Acumark’s special damages claim was neither an abuse of discretion nor against the
5 This instruction provides:
If you find that the defendant acted either intentionally or recklessly in
publishing the false and defamatory communication, you may presume that
the plaintiff suffered both injury to [his] [her] reputation and the emotional
distress, mental anguish, and humiliation that would result from such a
communication. This means you need not have proof that the plaintiff
suffered emotional distress, mental anguish, and humiliation in order to
award [him] [her] damages for such harm because such harm is presumed
by the law when a defendant publishes a false and defamatory
communication with the knowledge that it is false or in reckless disregard of
whether it is true or false.
Joseph II, 89 A.3d at 273 n.13 (quoting Pa. Suggested Standard Jury Instruction (Civil) §
17.180(B) (4th ed. 2011)).
[J-35-2015] - 22
weight of the evidence. The Superior Court set forth the trial court’s factual findings as to
this issue and concluded the following:
Unlike with the general damages claims, there is no indication in the trial
court’s analysis of Acumark’s proof of special damages that the trial court
imposed an erroneous burden on Acumark or ignored relevant evidence.
It simply was unconvinced by the Josephs’ testimony as to causation and by
[their expert’s] opinion evidence that Acumark failed to achieve a
factually-unsupported potential. Rather, the trial court was persuaded by
[the Media Defendants’] expert, and other specified factors that explained
Acumark’s performance between 2001 and 2009. Accordingly, we hold
that the trial court did not abuse its discretion in denying Acumark’s
post-trial motions based upon the weight of the evidence concerning its
claim for special damages.
Id. at 276.
Based on the aforementioned, the Superior Court held the trial court abused its
discretion in denying, in its entirety, Appellees’ post-trial motion for a new trial.
Specifically, in sum, the Superior Court concluded the trial court should have granted in
part Appellees’ post-trial motion for a new trial since:
(1) it failed to consider [Appellees’] evidence of emotional distress, mental
anguish, and personal humiliation; (2) it applied the incorrect standard of
proof in requiring all [Appellees] to prove that the defamation was the sole
cause, rather than merely a substantial cause, of their damages; (3) it held
that the August 6, 2001[,] article was not of or concerning Joseph, Sr.; (4) it
failed to make a factual finding on whether [the Media Defendants]
published the articles with actual malice; and (5) it dismissed [Appellees’]
false light [invasion of privacy] claims for want of proof of damages.
Id. Thus, the Superior Court affirmed in part and reversed in part the trial court’s order
denying Appellees’ post-trial motion for a new trial, vacated the judgment in favor of the
Media Defendants, and remanded for further proceedings.
The Media Defendants filed a petition for allowance of appeal, which this Court
granted. Specifically, we granted review of the following issues, as framed by the Media
Defendants:
[J-35-2015] - 23
a) Whether an appellate court may disregard the foundational rules
requiring deference to the trial court’s factual findings and credibility
determinations?
b) Whether a court may disregard the First Amendment constraints on
defamation actions by concluding that the injury-in-fact liability element of a
defamation claim is established without proof of reputational harm caused
by defamatory statements?
c) Whether a court may disregard the First Amendment constraints on
defamation actions by holding that proof of actual malice relieves plaintiffs
of their burden to prove injury-in-fact?
d) Whether a court may disregard the First Amendment constraints that
require a defamation plaintiff to prove falsity and fault on the part of a media
defendant and order a retrial on damages only where the record does not
establish that a plaintiff met his constitutional burdens?
Joseph v. Scranton Times L.P., ___ Pa. ___, 105 A.3d 655 (2014) (per curiam order).
II. Arguments
The primary premise of the Media Defendants’ argument is that the Superior Court
erred in concluding the trial court abused its discretion in denying, in its entirety,
Appellees’ post-trial motion for a new trial. They allege the trial court entered a verdict in
their favor because Appellees did not offer any credible evidence proving the newspaper
articles at issue caused them an actual injury. Thus, they suggest the Superior Court’s
opinion, which ordered a new trial on the issues of whether the Media Defendants
published the articles with actual malice, whether Appellees suffered general damages,
and whether Appellees are entitled to punitive damages, contravenes Pennsylvania law
in many respects.
Initially, the Media Defendants aver the Superior Court disregarded the deferential
standard of review which governs appeals from non-jury verdicts, ignored Judge Van
Jura’s findings and credibility determinations, and erred in relying on the facts as set forth
[J-35-2015] - 24
in a prior Superior Court panel’s opinion. The Media Defendants contend Appellees
attempted to prove injury and causation via their own testimony and the testimony of
family members; however, Judge Van Jura did not find the testimony to be credible.
They assert the Superior Court should have deferred to the trial court’s credibility
determinations, thus ending the analysis in this case.
The Media Defendants further posit that in reviewing this matter, the Superior
Court improperly re-shaped the trial court’s factual findings as legal error and then
announced two new principles of law:
(1) a defamation plaintiff need not prove reputational injury and instead may
establish the injury element solely based on [the plaintiff’s] own testimony
that he was humiliated and embarrassed; and (2) a defamation plaintiff is
entirely relieved of his burden to prove actual injury caused by the alleged
defamatory statements if he proves actual malice.
The Media Defendants’ Brief at 23. The Media Defendants allege these holdings
conflict with First Amendment limitations on defamation actions against media
defendants as well as established Pennsylvania jurisprudence, which requires proof of
injury to reputation and causation in a defamation action.
As to the Superior Court’s first legal holding, the Media Defendants allege the
Superior Court’s legal principle is inconsistent with settled law in that the tort of
defamation remedies harm to reputation such that it is insufficient for a plaintiff to satisfy
the actual injury requirement by proving the plaintiff suffered embarrassment or
annoyance. In other words, the Media Defendants posit “mental anguish and personal
humiliation unaccompanied by proof of reputational injury is not the kind of harm that
defamation is intended to address.” Id. at 35. Consequently, the Media Defendants
aver the Superior Court’s holding that defamation plaintiffs may satisfy their burden to
[J-35-2015] - 25
prove actual injury based solely on their own testimony of humiliation and
embarrassment, without evidence of actual injury to reputation, is inconsistent with
Pennsylvania law and the First Amendment’s mandate that where the case involves
media defendants, there must be competent evidence of actual injury to reputation.
The Media Defendants alternatively contend that even assuming the Superior
Court’s first principle is legally sound, in applying the holding to this case, the Superior
Court erred in concluding the trial court ignored Appellees’ testimony as to their alleged
humiliation, embarrassment, and mental anguish. The Media Defendants aver the trial
court considered Appellees’ testimony of humiliation and mental anguish, but rejected the
testimony as incredible. In fact, the Media Defendants posit, the trial court concluded
Appellees failed to credibly prove the defamatory articles caused any actual injury to
them.
Additionally, in applying the first principle, the Media Defendants allege the
Superior Court mischaracterized the trial court’s analysis as focusing on whether the
Media Defendants were the sole cause of Appellees’ reputational injuries when, in fact,
the trial court concluded Appellees failed to prove they suffered any reputational injury.
They contend Appellees’ lack of credibility led the trial court to conclude Appellees did not
prove causation and actual reputational injury as the law requires prior to recovery in a
defamation case.
As to the Superior Court’s second legal holding, the Media Defendants allege the
Superior Court erred in concluding proof of actual malice relieves a defamation plaintiff
from proving actual injury to reputation and permits recovery of presumed and punitive
damages. The Media Defendants suggest the Superior Court’s holding confuses the
[J-35-2015] - 26
purpose of actual malice in a defamation case and “reverts back to the days before
Walker when a plaintiff could point to the doctrine of presumed damages as a basis to
argue that he need not establish actual injury to prove his defamation case.” Id. at 41-42.
The Media Defendants urge this Court to expressly hold that as a necessary element of
all defamation claims, plaintiffs must prove they suffered actual injury to their reputation
as a result of the defamatory statement. They note this notion is equally applicable to
punitive damages as well.
Finally, the Media Defendants contend that to the extent this Court does not
reinstate the trial court’s order and judgment in their favor, we should remand for the trial
court to make relevant findings as to all of the elements necessary to establish liability,
and not just a limited remand on the issues of damages and actual malice only as
instructed by the Superior Court. They elaborate that the Superior Court’s limited
remand was based on the mistaken assumption that the trial court found in favor of
Appellees as to all of the necessary elements for defamation but then erred in failing to
award damages. In fact, the Media Defendants contend, the trial court concluded
Appellees did not prove they suffered an actual injury which was caused by the
newspaper articles, and thus, the trial court found it unnecessary to address the
remaining elements for defamation liability purposes, including whether the Media
Defendants published such false statements in a negligent manner.
The Media Defendants allege the Superior Court failed to recognize that injury
caused by the articles and damages are separate issues. The injury/causation issue is
an element which Appellees were required to prove in order to establish liability, whereas
the damages issue assesses a proper monetary award. The Media Defendants posit
[J-35-2015] - 27
that having found Appellees did not prove injury/causation, the trial court did not fully
address the remaining elements necessary for liability.
Supplementing the Media Defendants’ arguments, their Amici, The Pennsylvania
NewsMedia Association and Pennsylvania Freedom of Information Coalition, ask this
Court to clarify that proof of actual injury in the defamation context requires plaintiffs to
demonstrate their reputation was injured by the publication and it is not sufficient for
plaintiffs to allege emotional distress or “offended sensibilities” only. Amici’s Brief at 23.
The Amici argue that particularly when the material at issue is related to matters of public
concern, as occurred in this case, courts should require plaintiffs to prove actual injury to
their reputation as a necessary element of a defamation case.
Furthermore, they urge this Court to reject the current Superior Court panel’s
unwarranted expansion of the media’s liability in defamation cases, and in the process
thereof, affirm the Superior Court’s previous holding in Walker that, regardless of the
standard of fault at issue, a defamation plaintiff must demonstrate actual injury and may
not rely upon presumed damages. The Amici observe that, in Walker the Superior Court
quoted the defamation statute and concluded the legislature “abrogated the common law
rule of presumed damages when it included in the statutory prerequisites for recovering in
a defamation action, the necessity of proving ‘[s]pecial harm resulting to the plaintiff’ from
the defamatory publication.” Id. at 12 (quoting Walker, 643 A.2d at 242; 42 Pa.C.S. §
8343).
The Amici contend the rejection of presumed damages in Walker has been the rule
in Pennsylvania for two decades and the Superior Court erred in departing from the rule in
the case sub judice. The Amici specifically question the soundness of the Superior
[J-35-2015] - 28
Court’s reasoning in relying upon Pennsylvania’s Standard Jury Instructions and a caveat
to the Restatement (Second) of Torts § 621, as well as its interpretation of Gertz v. Robert
Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997 (1974), in concluding that a defamation plaintiff
who has proven a false statement was published with actual malice may recover
presumed damages.
The Amici stress that in the context of general tort law, there is no judicially
recognized exception for presumed damages, and plaintiffs may not recover unless they
prove actual harm caused by the defendant as an element of the claim itself. The Amici
suggest that creating an exception of presumed damages for defamation claims will lead
to problematic verdicts, including lack of guidance as to the amount a jury should award
absent evidence of injury and the risk the jury will consider impermissible factors.
In response, Appellees dispute the Media Defendants’ and their Amici’s
arguments that the Superior Court failed to defer to the trial court’s factual findings or
fashioned “new legal principles” in reversing the trial court’s denial of Appellees’ post-trial
motion for a new trial. See Appellees’ Brief at 29. Rather, they insist the Superior Court
gave the proper deference to the trial court’s factual findings, as well as its credibility
determinations, and then properly reversed based on the conclusion the trial court erred
as a matter of law in failing to consider all types of damages after finding Appellees met
their burden of proving all necessary elements for liability.
Appellees aver the Media Defendants are mistaken in their assertion that the trial
court entered a verdict in favor of the Media Defendants because Appellees failed to
prove injury/causation. Rather, they contend the trial court found Appellees properly
proved all of the elements required for liability, including causation, but then improperly
[J-35-2015] - 29
found Appellees insufficiently proved damages. That is, they urge this Court to adopt the
Superior Court’s premise that “‘[h]ad the trial court not made the factual finding that
[Plaintiffs] satisfied their burdens of proof as to liability, it would not have had the occasion
to reach the question of whether [Plaintiffs] suffered damages as a result of the
defamation.’” Id. at 50 (quoting Joseph II, 89 A.3d at 266).
Appellees point out the Superior Court was not obliged to defer to the trial court’s
misconstruction of the existing law on defamation damages or its erroneous application of
the law to the evidence. Id. at 29. In this vein, they aver the U.S. Supreme Court and
Pennsylvania jurisprudence have long recognized that defamation plaintiffs may recover
damages for humiliation, mental anguish, and emotional distress caused to them by
defamatory articles, and thus the Superior Court properly concluded the trial court was
required to consider such damages after finding Appellees met their burden of proving the
elements required for liability. See id. at 45-50 (setting forth and discussing authority for
the proposition that personal humiliation, mental anguish, and suffering are cognizable
forms of actual harm upon which recovery for defamation may be based). Appellees
contend the Superior Court properly held the trial court erred in considering Appellees’
proof of damages solely in the context of reputational injury, without considering the issue
of emotional distress, mental anguish, and personal humiliation.
Furthermore, Appellees suggest “the record is bereft of any support for the trial
court’s hypothesis that ‘something else’ damaged Joseph, Sr.’s reputation in the
community.” Id. at 38-39 (citation to record omitted). Appellees argue that, even
assuming actual injury to reputation is the proper standard for damages, as alleged by the
Media Defendants and their Amici, Appellees sufficiently proved they suffered
[J-35-2015] - 30
reputational harm due to the defamatory articles. In this vein, they contend the trial court
improperly discarded Appellees’ witnesses’ testimony of reputational injury on the basis
their individual views of Joseph, Sr. had not been altered by the articles. Appellees
assert the proper inquiry is not whether the witnesses’ individual views had changed as a
result of the articles; but rather, whether their testimony demonstrated Appellees’
reputation was diminished in the community by the articles.
Moreover, Appellees note the Superior Court properly rejected the trial court’s
reasoning that testimony given by Joseph, Sr. in a 2001 deposition related to an
automobile accident demonstrated Joseph, Sr.’s injuries were caused by the accident
and not the articles. Similarly, they argue the Superior Court properly rejected the trial
court’s conclusion Joseph, Sr.’s injuries were caused by articles printed in The Times
Leader. As such, Appellees proffer the Superior Court properly held the trial court’s
verdict of “zero damages” was based upon hypotheses with no foundation and a
misapplication of the law. Id. at 41.
Additionally, Appellees aver the Superior Court properly concluded that, where a
plaintiff proves a media defendant printed defamatory articles with actual malice,
presumed damages are available. Finally, Appellees contend the Superior Court
properly fulfilled its duty of “‘mak[ing] an independent examination of the whole record in
order to make sure that the judgment does not constitute a forbidden intrusion on the field
of free expression.’” Id. at 56 (quotation omitted). Thus, they conclude the Superior
Court logically held the trial court found Appellees met all of their burdens as to liability but
then improperly concluded Appellees did not prove damages.
III. Discussion
[J-35-2015] - 31
Our analysis begins with an examination of the relevant legislative authority which
sets forth that in an action for defamation, the plaintiff has the burden of proving, when the
issue is properly raised:
(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.
42 Pa.C.S. § 8343(a).
Where the plaintiff has met this burden, the Act sets forth the following, which the
defendant has the burden of proving:
(1) The truth of the defamatory communication.
(2) The privileged character of the occasion on which it was published.
(3) The character of the subject matter of defamatory comment as of public
concern.
42 Pa.C.S. § 8343(b).
Precedent has further developed the law of defamation, recognizing the tort’s
evolving constitutional infrastructure. “Under Pennsylvania’s common law regime, the
defendant was strictly liable for the publication of a defamatory statement unless he could
prove that the statement was true, or that it was subject to a privilege.” American Future
Systems, Inc. v. Better Business Bureau of Eastern PA, 592 Pa. 66, 77-78, 923 A.2d 389,
396 (2007), cert. denied, 552 U.S. 1076, 128 S. Ct. 806 (2007) (citation and footnote
omitted). Such privileges arose where the statements were “made upon a proper
occasion, from a proper motive, in a proper manner and based upon reasonable and
probable cause.” Id. at 78, 923 A.2d at 396 (quotation and quotation marks omitted).
[J-35-2015] - 32
After the defendant established a privilege, the burden shifted to the plaintiff to
demonstrate an abuse of the privilege, which included the defendant failing to exercise
reasonable care or in some cases legal malice. See id. General damages were
awarded not only for harm to reputation which the plaintiff proved to have occurred, but
also, in the absence of such proof, for harm to reputation that would normally be assumed
to flow from a defamatory publication of the nature involved. See Restatement (Second)
of Torts § 621 cmt. a. Pursuant to its origins, defamation typically focused on the
defamatory character of the words rather than the injury, such that “[u]nder the traditional
rules pertaining to actions for libel, the existence of injury [was] presumed from the fact of
publication.” Gertz, 418 U.S. at 349, 94 S.Ct. at 3011. “This scheme developed during
an era in which the First Amendment was inapplicable to the law of libel.” See American
Future Systems, Inc., 592 Pa. at 78, 923 A.2d at 396 (citations omitted).
However, more recent changes to the tort of defamation have been shaped by
First Amendment concerns, which have largely conflicted with former common law
notions of presumed injury to reputation and damages. The U.S. Supreme Court has on
several occasions described the contours of the law of libel, which involves the
accommodation of federal constitutional interests of free speech and a robust press with
state interests in protecting the reputations of its citizens from defamatory falsehoods.
For instance, in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710
(1964), the U.S. Supreme Court recognized that defamation actions are subject to
constitutional scrutiny. Therein, the Court declared the First Amendment protects
certain defamatory speech. More specifically, the Court held:
The constitutional guarantees require . . . a federal rule that prohibits a
public official from recovering damages for a defamatory falsehood relating
[J-35-2015] - 33
to his official conduct unless he proves that the statement was made with
‘actual malice’--that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.
Id. at 279-80, 84 S.Ct. at 726. See Norton v. Glenn, 580 Pa. 212, 226, 860 A.2d 48, 56
(2004), cert. denied, 544 U.S. 956, 125 S. Ct. 1700 (2005) (acknowledging the U.S.
Supreme Court has indicated public officials are required to prove actual malice as a
prerequisite to establishing liability in defamation actions).6
Following New York Times, the U.S. Supreme Court struggled with whether and
how the New York Times standard should apply to private individuals.7 In Rosenbloom
v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811 (1971) (plurality opinion), abrogated by
Gertz, supra, the Court, in separate opinions each garnering three votes or less,
extended the New York Times standard to defamation claims by private individuals in
areas of public interest. However, later, in Gertz, the Court retreated from Rosenbloom
concluding private plaintiffs may recover against media defendants under a standard less
than actual malice since the strong and legitimate “state interest in compensating injury to
the reputation of private individuals requires . . . a different rule . . . with respect to them.”
Gertz, 418 U.S. at 343, 94 S.Ct. at 3008-09.
The Gertz Court concluded “the States should retain substantial latitude in their
efforts to enforce a legal remedy for defamatory falsehood injuries to the reputation of a
private individual.” Id. at 345-46, 94 S.Ct. at 3010. Thus, balancing the competing
concerns of the First Amendment and the state interest in compensating private plaintiffs
6 This actual malice standard for defamation against public officials was later extended
by the federal High Court to public figures generally. See Curtis Pub. Co. v. Butts, 388
U.S. 130, 87 S. Ct. 1975 (1967).
7 The parties agree Appellees are private figure plaintiffs in the case sub judice.
[J-35-2015] - 34
for wrongful injury to their reputations, the U.S. Supreme Court held “that, so long as they
do not impose liability without fault, the States may define for themselves the appropriate
standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a
private individual.” Id. at 347, 94 S.Ct. at 3010 (footnote omitted).
After establishing the minimum requirement of fault, Gertz turned to the issue of
presumed injury in defamation actions involving private figure plaintiffs and criticized
defamation as an “oddity of tort law” because it allows recovery of compensatory
damages without proof of actual loss, thus permitting juries to “award substantial sums as
compensation for supposed damage to reputation without any proof that such harm
actually occurred.” Id. at 349, 94 S. Ct. at 3011. The Court concluded:
[T]he doctrine of presumed damages invites juries to punish unpopular
opinion rather than to compensate individuals for injury sustained by the
publication of a false fact. More to the point, the States have no substantial
interest in securing for plaintiffs . . . gratuitous awards of money damages
far in excess of any actual injury.
Id. at 349, 94 S.Ct. at 3012.
Gertz addressed these concerns by holding that “the States may not permit
recovery of presumed or punitive damages, at least when liability is not based on a
showing of knowledge of falsity or reckless disregard for the truth.” Id. at 349, 94 S. Ct. at
3011. In such cases, Gertz recognized that although the States have a strong interest in
compensating private individuals for injury to reputation, the “state interest extends no
further than compensation for actual injury.” Id. See Herbert v. Lando, 441 U.S. 153,
159, 99 S. Ct. 1635, 1640 (1979) (“[N]onpublic figures must demonstrate some fault on
the [media] defendant’s part, and, at least where knowing or reckless untruth is not
[J-35-2015] - 35
shown, some proof of actual injury to the plaintiff before liability may be imposed and
damages awarded.”).
Recognizing trial courts have experience in crafting jury instructions in tort actions,
the Gertz Court declined to define “actual injury,” although it clarified:
[A]ctual injury is not limited to out-of-pocket loss. Indeed, the more
customary types of actual harm inflicted by defamatory falsehood include
impairment of reputation and standing in the community, personal
humiliation, and mental anguish and suffering. Of course, juries must be
limited by appropriate instructions, and all awards must be supported by
competent evidence concerning the injury, although there need be no
evidence which assigns an actual dollar value to the injury.
Id. at 350, 94 S.Ct. at 3012.
In Gertz, the U.S. Supreme Court indicated that only the State’s interest in
protecting an individual’s reputation can justify the intrusion into otherwise constitutionally
protected free speech. However, subsequently, in Time, Inc. v. Firestone, 424 U.S. 448,
96 S. Ct. 968 (1976), the Supreme Court narrowed Gertz’s emphasis on injury to
reputation by permitting the States to allow recovery for injuries such as mental anguish
without a showing of injury to reputation. The federal High Court noted that by permitting
the libel plaintiff in Firestone to withdraw a claim for injury to reputation, thus leaving solely
a claim for mental anguish, “Florida has obviously decided to permit recovery for other
injuries without regard to measuring the effect the falsehood may have had upon a
plaintiff’s reputation. This does not transform the action into something other than an
action for defamation as that term is meant in Gertz.”8 Id. at 460, 96 S.Ct. at 968.
8 Thus, in Firestone, the U.S. Supreme Court concluded the Florida jury’s award of
$100,000 in compensatory damages, which was premised entirely on mental anguish
suffered by the private figure plaintiff, was not unconstitutional on this basis.
[J-35-2015] - 36
Justice Brennan criticized the Court’s majority for permitting the States to allow
defamation plaintiffs to recover for emotional and mental injuries absent proof of
reputational injury. Notably, he indicated:
It seems pretty clear that by allowing this type of recovery [Florida] has
subverted whatever protective influence the “actual injury” stricture may
possess. Gertz would, of course, allow for an award of damages for such
injury after proof of injury to reputation. But to allow such damages without
proof “by competent evidence” of any other “actual injury” is to do nothing
less than return to the old rule of presumed damages supposedly outlawed
by Gertz in instances where the New York Times standard is not met.
Id. at 475 n.3, 96 S. Ct. at 975 n.3 (Brennan, J., dissenting) (emphasis and citations
omitted).
In addition to limiting the availability of presumed damages to private figure
plaintiffs against media defendants upon a showing of less than actual malice, as
discussed supra, in Gertz, the U.S. Supreme Court also limited the availability of punitive
damages holding:
We also find no justification for allowing awards of punitive damages
against publishers and broadcasters held liable under state-defined
standards of liability for defamation. In most jurisdictions jury discretion
over the amounts awarded is limited only by the gentle rule that they not be
excessive. Consequently, juries assess punitive damages in wholly
unpredictable amounts bearing no necessary relation to the actual harm
caused. And they remain free to use their discretion selectively to punish
expressions of unpopular view. Like the doctrine of presumed damages,
jury discretion to award punitive damages unnecessarily exacerbates the
danger of media self-censorship, but, unlike the former rule, punitive
damages are wholly irrelevant to the state interest that justifies a negligence
standard for private defamation actions. They are not compensation for
injury. Instead, they are private fines levied by civil juries to punish
reprehensible conduct and to deter its future occurrence. In short, the
private defamation plaintiff who establishes liability under a less demanding
standard than that stated by New York Times may recover only such
damages as are sufficient to compensate him for actual injury.
[J-35-2015] - 37
Gertz, 418 U.S. at 350, 94 S. Ct. at 3012. See Milkovich v. Lorain Journal Co., 497 U.S.
1, 16, 110 S. Ct. 2695, 2704 (1990) (indicating where private individual brings defamation
action “States [may] not permit recovery of presumed or punitive damages on less than a
showing of New York Times malice.”) (citation omitted)); Philadelphia Newspapers, Inc. v.
Hepps, 475 U.S. 767, 774, 106 S. Ct. 1558, 1562 (1986) (“[T]he Court in Gertz expressly
held that, although a showing of simple fault sufficed to allow recovery for actual
damages, even a private-figure plaintiff was required to show actual malice in order to
recover presumed or punitive damages.”) (citation omitted)); Smith v. Wade, 461 U.S. 30,
50, 103 S. Ct. 1625, 1637 (1983) (“[I]n the First Amendment context, . . . punitive damages
cannot be assessed for defamation in the absence of proof of ‘knowledge of falsity or
reckless disregard for the truth.’”) (quotation omitted)).
In light of these landmark U.S. Supreme Court decisions, this Court has
recognized that we may not interpret our state’s Constitution as providing broader free
expression rights than does its counterpart. Thus, “the protections accorded . . . by the
U.S. Supreme Court to the right of free expression in defamation actions . . . demarcate
the outer boundaries of our Commonwealth’s free expression provision.” Norton, 580
Pa. at 229, 860 A.2d at 58. See American Future Systems, Inc., 592 Pa. at 77, 923 A.2d
at 395 (“[I]n the context of defamation law the state Constitution’s free speech guarantees
are no more extensive than those of the First Amendment.”) (citations omitted)).
Therefore, consistent with this principle, we have acknowledged that defamation
includes a requirement the plaintiff prove a constitutionally-mandated minimum level of
fault in order for the court to impose liability on a media defendant. See Norton, 580 Pa.
at 224-25, 860 A.2d at 55-56. As indicated, the appropriate minimum level of fault
[J-35-2015] - 38
depends on whether the plaintiff is a public or private figure. More specifically, where, as
here, the 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
American Future Systems, Inc., 592 Pa. at 84-85, 923 at 400 (recognizing the Gertz
Court’s formulation for determining liability).9
Moreover, consistent with the federal High Court’s requirement, in Pennsylvania,
when private figure plaintiffs establish liability based on negligence, recovery is restricted
to compensation for actual injury, thus eliminating the specters of presumed and punitive
damages in this regard. See Norton, 580 Pa. at 224-25, 860 A.2d at 55-56; Restatement
(Second) of Torts § 621 cmt. b (“[T]he [U.S.] Supreme Court [has] held that the common
law rule of presumed damages is incompatible with the First Amendment freedoms and
therefore unconstitutional.”), cmt. d (“Punitive damages cannot constitutionally be
awarded if the defendant was merely negligent in failing to ascertain the falsity of the
defamatory communication.”). As such, it is incumbent upon such plaintiffs to establish a
causal connection between the negligently published falsehood and the actual injuries
which they have suffered. See Gertz, 418 U.S. at 349-50, 94 S.Ct. at 3012; Restatement
(Second) of Torts § 622A (“Defamation is a legal cause of special harm to the person
defamed if . . . it is a substantial factor in bringing about the harm[.]”); Pa. Suggested
Standard Jury Instructions (Civil) § 17.190 (4th ed. 2013) (“A false and defamatory
communication is a cause of injury if the harm would not have occurred absent the
9 We have held this standard is not altered as to private figure plaintiffs where the
defamatory statement involves a matter of public concern. See id. at 83-84, 923 A.2d at
399-400.
[J-35-2015] - 39
communication. A false and defamatory communication is not a cause of injury if it has
no connection or only an insignificant connection with the injury.”).
As with other torts, causation in defamation consists generally of two separate and
essential concepts: cause-in-fact (i.e., but for the negligently published falsehood the
plaintiff would not have sustained the injury) and legal, or proximate, cause (i.e., the point
at which legal responsibility attaches because the publication was a substantial factor in
bringing about the plaintiff’s injury). See Ford v. Jeffries, 474 Pa. 588, 594-95, 379 A.2d
111, 114 (1977); Whitner v. Von Hintz, 437 Pa. 448, 455-57, 263 A.2d 889, 893-94
(1970). The burden of proving causation is on the private figure plaintiff, and that burden
must be sustained by a preponderance of the evidence. See Hamil v. Bashline, 481 Pa.
256, 265, 392 A.2d 1280, 1284 (1978). “Whether in a particular case that standard has
been met with respect to the element of causation is normally a question of fact[.]” Id. at
266, 392 A.2d at 1284-85 (citations omitted). Additionally, the plaintiff may establish
causation with any evidence, direct or circumstantial, which tends to prove the media
defendant’s libelous publication caused the alleged actual injury. See id. at 266, 392
A.2d at 1285.
As to the type of actual injuries for which private figure plaintiffs may recover
damages in establishing liability based on negligence, the Court in Gertz declined to set
forth an exhaustive definition; however, the federal High Court defined such as including
monetary and non-monetary injuries, such as “impairment of reputation and standing in
the community, personal humiliation, and mental anguish and suffering.”10 Gertz, 418
10 Consistent with Restatement (Second) of Torts § 569, Pennsylvania case law holds
that proof of special harm, i.e., monetary damages, is not a prerequisite to recovery in a
(continuedU)
[J-35-2015] - 40
U.S. at 349-50, 94 S. Ct. at 3012. Furthermore, the U.S. Supreme Court indicated “all
awards must be supported by competent evidence concerning the injury, although there
need be no evidence which assigns an actual dollar value to the injury.” Id. at 350, 94
S.Ct. at 3012. Moreover, we now take this opportunity to clarify that, as suggested by
the Media Defendants and their Amici, for purposes of a Pennsylvania defamation case,
proof of actual injury to a private plaintiff’s reputation is a prerequisite to the recovery of
damages for other actual injuries, including mental and emotional injuries.
Although not specifically considered by this Court previously, we find ample
support for our conclusion within the historical framework of defamation, the Second
Restatement of Torts (which this Court has a tendency to adopt in defamation matters),
and the manner in which the law of defamation has generally been understood within our
appellate case law. For instance, in analyzing the elements of a defamation cause of
action, we have held the plaintiff must demonstrate “whether the statement tends so to
harm the reputation of another as to lower him in the estimation of the community or to
deter third parties from associating or dealing with him.” Tucker v. Philadelphia Daily
News, 577 Pa. 598, 615, 848 A.2d 113, 124 (2004) (quotation and quotation marks
omitted). See MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 124-25, 674
A.2d 1050, 1054 (1996); Restatement (Second) of Torts § 559. We have specifically
indicated that, as to this element, “[i]t is not enough that the victim of the [statements] . . .
be embarrassed or annoyed, he must have suffered the kind of harm which has
(Ucontinued)
defamation libel matter. See Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. 2011); Agriss,
483 A.2d at 472-74.
[J-35-2015] - 41
grievously fractured his standing in the community of respectable society.” Id. (quotation
and quotation marks omitted).
Although the analysis in Tucker and MacElree focused on the elements of the
prima facie case other than the reputational injury element, namely, whether the
communication itself was defamatory, our case law makes it clear that the protection of an
individual’s reputation is the very essence of a claim for defamation. Thus, as Justice
Brennan articulated in his dissent in Firestone, permitting the recovery of damages for
injuries such as mental anguish without a showing of injury to reputation subverts the
intended “protective influence” of Gertz’s actual injury stricture. Firestone, 424 U.S. at
475 n.3, 96 S. Ct. at 975 n.3 (Brennan, J., dissenting). We note that Pennsylvania is not
alone in requiring reputational injury as a prerequisite to a defamation plaintiff’s recovery
of damages for mental and emotional injuries. See Smith v. Durden, ___ N.M. ___, 276
P.3d 943 (2012) (holding proof of actual reputational injury is a prerequisite to recovery in
a defamation case); Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933
(1983) (indicating defamation claims always require proof of reputational injury for mental
suffering alone is insufficient to permit recovery); Gobin v. Globe Pub. Co., 232 Kan. 1,
649 P.2d 1239 (1982) (holding that unless damage to reputation is shown the plaintiff has
not established a valid claim for defamation damages).
As to presumed and punitive damages, although the Gertz Court made it clear that
the First Amendment prohibits awards of presumed and punitive damages for defamatory
statements where private plaintiffs show less than actual malice, the Court left open the
question of whether presumed or punitive damages are constitutional when the plaintiff
[J-35-2015] - 42
proves actual malice in such cases.11 See Gertz, 418 U.S. at 349, 94 S.Ct. at 3011
(“[W]e hold that the States may not permit recovery of presumed or punitive damages, at
least when liability is not based on a showing of knowledge of falsity or reckless disregard
for the truth.”); Id. at 349, S.Ct. at 3012 (“It is necessary to restrict defamation plaintiffs
who do not prove knowledge of falsity or reckless disregard for the truth to compensation
for actual injury.”). As indicated supra, the Media Defendants and their Amici contend
that, even in cases where private figure plaintiffs prove actual malice, damages should be
limited to those for proven actual injury. Thus, the Media Defendants specifically
suggest “proof of actual malice is no substitute for proof of actual injury.” Media
Defendants’ Brief at 45.
In Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984),
reversed on other grounds, 475 U.S. 767, 106 S. Ct. 1558 (1986), which involved a libel
action brought by private plaintiffs against a newspaper publisher and reporters, this
Court recognized the “considerable controversy” raised by Gertz regarding the continued
availability of presumed and punitive damages in defamation cases. Specifically, we
stated:
We should note that the Gertz decision has raised considerable
controversy concerning whether it foreshadows the total abolition of
punitive damage awards in defamation cases. In holding unconstitutional
the awarding of presumed or punitive damages where defamatory
publications are negligently published, the Gertz Court reasoned that the
11In the Second Restatement of Torts, as to this issue, the Institute indicated:
The Institute takes no position on whether the traditional common law rule
allowing recovery in the absence of proof of actual harm, for the harm that
normally results from such a defamation, may constitutionally be applied if
the defendant knew of the falsity of the communication or acted in reckless
disregard of its truth or falsity.
Restatement (Second) of Torts § 621, Caveat.
[J-35-2015] - 43
potential for large verdicts, completely unrelated to the actual injury suffered
by the victim, might have a chilling effect or act as a prior restraint of free
expression. Gertz, supra, 418 U.S. at 350-51, 94 S. Ct. at 3012-13.
Further, the Court surmised that the doctrine of presumed damages and the
unabridged discretion conferred upon juries to award punitive damages,
bearing no relationship to the injury suffered, invites juries to punish the
expression of unpopular opinion rather than effectuate any legitimate social
goal. Id. at 350-51, 94 S. Ct. at 3012-13. Nonetheless, a number of courts
have considered whether Gertz presaged the abolition of punitive damages
and have concluded that it did not. We are satisfied that under the present
law as articulated by the [U.S.] Supreme Court there has not been a
sufficiently definitive directive to cause us to abandon the long standing
practice in this jurisdiction of allowing punitive damages in the appropriate
case.
The Gertz decision did make it clear that the negligent standard of
fault would not be a sufficient basis for the allowance of punitive damages.
To justify punitive damages, the plaintiff is called upon to satisfy the “actual
malice” test.
Hepps, 506 Pa. at 329-30, 485 A.2d at 387-88 (citations and footnotes omitted).
The U.S. Supreme Court granted certiorari in Hepps12 and, in discussing Gertz,
the Court relevantly indicated:
[E]ven when private figures are involved, the constitutional requirement of
fault supersedes the common law’s presumptions as to fault and damages.
In addition, the Court in Gertz expressly held that, although a showing of
simple fault sufficed to allow recovery for actual damages, even a
private-figure plaintiff was required to show actual malice in order to recover
presumed or punitive damages.
Hepps, 475 U.S. at 774, 106 S.Ct. at 1562 (citation omitted). See Milkovich, 497 U.S. at
16, 110 S.Ct. at 2704 (“[W]e held [in Gertz] the States could not permit recovery of
12 The federal High Court reversed this Court’s decision in Hepps on grounds other than
those pertaining to punitive and presumed damages. Specifically, as it relates to a
plaintiff seeking damages against a media defendant for speech of public concern, the
U.S. Supreme Court held, contrary to this Court, that “the common law’s rule of
falsity--that the defendant must bear the burden of proving truth--must . . . fall here to a
constitutional requirement that the plaintiff bear the burden of proving falsity, as well as
fault, before recovering damages.” Hepps, 475 U.S. at 776, 106 S.Ct. at 1563.
[J-35-2015] - 44
presumed or punitive damages on less than a showing of New York Times malice.”)
(citation omitted)).
Based on the aforementioned, we continue to find no specific directive from the
U.S. Supreme Court to cause us to abandon the long standing practice in this jurisdiction
of allowing punitive, as well as presumed, damages in appropriate cases. Thus, unless
the federal High Court concludes the Constitution requires otherwise, we reject the Media
Defendants’ and their Amici’s argument to the contrary and permit private plaintiffs in libel
cases involving media defendants to recover presumed and punitive damages upon their
satisfaction of the New York Times actual malice test.13
With these legal principles in mind, we now examine the Media Defendants’
contention that, in the instant case, the Superior Court failed to apply the proper reviewing
standards in determining whether the trial court abused its discretion in denying, in its
entirety, Appellees’ post-trial motion for a new trial. In this regard, our standard of review
is whether the Superior Court committed an error of law or an abuse of discretion.
Morrison v. Com., Dept. of Public Welfare, 538 Pa. 122, 133-35, 646 A.2d 565, 570-72
(1994).
The Media Defendants specifically contend that in ordering a new trial as to
Appellees’ claims of emotional distress, mental anguish, and personal humiliation, the
13 To the extent the Media Defendants and their Amici argue the Superior Court’s
decision in Walker, supra establishes the controlling precedent as to the availability of
presumed damages upon a plaintiff’s showing of actual malice, we disagree. This Court
is not bound by the Superior Court’s decisions. Stone Crushed Partnership v. Kassab
Archbold Jackson & O’Brien, 589 Pa. 296, 306, 908 A.2d 875, 881 (2006). Moreover,
while Walker suggested that a plaintiff in a defamation per se action must prove actual
harm in order to recover compensatory damages, Walker left open the question of
whether a plaintiff may recover for presumed damages upon a showing of actual malice.
See Franklin Prescriptions, Inc., 424 F.3d at 342 (discussing Walker).
[J-35-2015] - 45
Superior Court improperly concluded Judge Van Jura ignored Appellees’ evidence with
regard thereto. See Media Defendants’ Brief at 24-25, 27-30. In fact, the Media
Defendants contend, Judge Van Jura considered Appellees’ testimony concerning their
alleged emotional distress, mental anguish, and personal humiliation, but rejected the
testimony as incredible. Id. at 25. The Media Defendants aver the Superior Court erred
not only in mischaracterizing Judge Van Jura’s consideration of the testimony, but also in
failing to defer to Judge Van Jura’s credibility determinations and factual findings. Id. at
27-30, 33-34. Intertwined in this argument is the Media Defendants’ contention the
Superior Court erred in quoting at length to and relying upon the facts set forth in its
previous panel’s decision since the facts in that opinion were derived from proceedings
held before former Judge Ciavarella, as opposed to the proceedings held before Judge
Van Jura. See id. at 23, 29, 47.
Initially, we agree with the Media Defendants that to the extent the Superior Court
relied upon the factual findings and credibility determinations made by former Judge
Ciavarella, it was error. As noted supra, this Court, exercising its King’s Bench authority,
vacated former Judge Ciavarella’s verdict, judgment, and all substantive orders, thus
rendering the proceedings before him null and void. Joseph v. Scranton Times L.P., 604
Pa. 677, 987 A.2d 633 (2009) (per curiam order). Therefore, and notably, in setting forth
and relying upon over four pages of facts from its prior panel’s decision, which were
based upon proceedings held before former Judge Ciavarella, the present Superior Court
panel erred. See Joseph II, 89 A.3d at 254-58.
Furthermore, in concluding a new trial was warranted on the basis Judge Van Jura
improperly ignored testimony related to Appellees’ claims of emotional distress, mental
[J-35-2015] - 46
anguish, and personal humiliation, we initially disagree with the Superior Court’s legal
premise that private figure plaintiffs resting their defamation claims upon negligence may
recover for mental injuries caused by the publication of defamatory articles, absent proof
of actual injury to reputation. Rather, as previously discussed, such plaintiffs are
required to establish actual injury to their reputation as a prerequisite to recovery for
actual mental injuries. Thus, Judge Van Jura, who as discussed infra properly found
Appellees did not prove they suffered actual reputational injury, was not required to
consider whether Appellees suffered actual mental injuries for purposes of defamation.
However, since the issue is related to whether Judge Van Jura properly denied
Appellees’ claims for false light invasion of privacy, we note that we disagree with the
Superior Court that Judge Van Jura ignored the testimony related to Appellees’ claims of
such mental injuries. Rather, we find that, exercising his discretion, Judge Van Jura
considered the testimony related to Appellees’ claims of mental injuries but rejected the
testimony offered by Appellees in this regard, finding it to be incredible. Trial Court
Opinion filed 12/8/11 at 25-26, 28.
For instance, Judge Van Jura specifically considered testimony presented by
Appellees as it related to Joseph, Sr.’s loss of enjoyment and feelings of isolation but
found the evidence suggested such injuries were not caused by the publication of the
defamatory articles. Id. Rather, he found the mental injuries from which Joseph, Sr.
claimed to have suffered resulted from injuries he sustained in a prior motor vehicle
accident. Id. Moreover, as it relates to Joseph, Jr., Judge Van Jura found Joseph, Jr.
failed to credibly prove he suffered any actual injury as a result of the single statement
made about him in the Citizens’ Voice articles. Id. at 25, 35-36.
[J-35-2015] - 47
We agree with the Media Defendants’ argument suggesting that Judge Van Jura
was entitled to exercise his discretion in this regard. See Com., Dept. of Transp., Bureau
of Traffic Safety v. O’Connell, 521 Pa. 242, 248, 555 A.2d 873, 875 (1989) (“Questions of
credibility and conflicts in the evidence presented are for the trial court to resolve, not our
appellate courts.”) (citations omitted)). Moreover, we note the Superior Court’s
approach in scouring the record for evidence which could, arguably, support the finding
the articles caused Appellees to suffer personal humiliation and anguish, and then in
suggesting the trial court erred in disregarding the evidence, is contrary to the approach
this Court has mandated. See Morrison, 538 Pa. at 133-35, 646 A.2d at 571-72.
Where, as here, the record adequately supports the trial court’s reasons and factual
basis, the Superior Court should have deferred to the judgment of the trial court. Id. at
134, 646 A.2d at 571. The fact the Superior Court would have reached a decision
contrary to the trial court based on the facts in the record does not constitute an abuse of
discretion on the part of the trial court. Id. at 134-35, 646 A.2d at 571. Accordingly, we
agree with the Media Defendants that the Superior Court erred in determining a new trial
was warranted for the trial court to further consider Appellees’ claims of emotional
distress, mental anguish, and personal humiliation.
The Media Defendants next argue that in determining a new trial was warranted as
to Appellees’ claims of reputational injury, the Superior Court erred in holding the trial
court misapprehended the law on causation. The Superior Court held the trial court
erroneously focused its analysis on whether Appellees’ claims of reputational harm were
caused solely by the defamatory articles. See Joseph II, 89 A.3d at 266-67. In so
holding, the Superior Court adopted Appellees’ appellate argument that “[t]he trial court
[J-35-2015] - 48
implicitly conceded that Joseph, Sr.’s reputation was damaged by the Articles; just not, in
the trial court’s view, only by the articles[.]” Id. at 267 (quotation and quotation marks
omitted). The Superior Court opined “[t]he finding that there were other causes for the
damage to [Appellees’] reputations certainly impacts the quantity of the damages for
which [the Media Defendants] are liable; however, that does not negate liability.” Id.
Thus, concluding the trial court abused its discretion in misapplying the law when it denied
Appellees’ post-trial motion for a new trial, the Superior Court ordered, “[u]pon retrial, the
fact finder must determine whether each of the four [Appellees] suffered harm to his or its
reputation for which the defamatory statements in the Citizens’ Voice articles was
substantial causal factors.” Id.
Contrary to the Superior Court’s holding, the Media Defendants argue the trial
court did not implicitly find that Appellees’ reputations were damaged, to any extent, by
the articles. They contend that since Judge Van Jura’s factual findings are supported by
the record, the Superior Court applied an incorrect standard of review in failing to defer to
said findings.
We conclude the Superior Court mischaracterized Judge Van Jura’s analysis as it
relates to Appellees’ claims of reputational injury. Judge Van Jura did not implicitly find
that Appellees’ reputations were damaged, to any extent, by the articles. Rather, as
discussed in detail infra, he held Appellees failed to meet their burden of proving either (1)
they suffered reputational injuries or (2) they suffered reputational injuries which had a
connection to the defamatory articles. The record adequately supports Judge Van
Jura’s reasons and factual basis.
[J-35-2015] - 49
For instance, with regard to Joseph, Sr., Judge Van Jura initially noted that his
friends and employees, including Mary Faulkner, Frank Falzone, John Syzelowski, Barry
Centini, and Jim Worobey (“Worobey”) testified “unequivocally that nothing in the articles
caused them to have a lesser view of Joseph’s reputation[.]” Trial Court Opinion filed
12/8/11 at 27. The trial court further considered Joseph, Sr.’s and Leah Joseph’s
testimony, concluding it did not credibly establish that Joseph, Sr.’s reputation was
diminished by the articles. Id. at 25-28.
Additionally, Judge Van Jura noted Worobey testified the articles had no effect on
his view of Joseph, Jr.’s reputation. Id. at 27. Also, the Judge noted that, although
Joseph, Jr.’s fiancé testified “friends pulled away when she mentions Joseph[,] Jr.’s
name[,] . . . she did not testify that this reaction was caused by the statements complained
of in the Citizen[s’] Voice published ten years ago.” Id. at 28 (citation to record omitted).
Judge Van Jura specifically indicated that “Joseph[,] Jr. did not introduce the testimony of
any member of his community who had a lesser or diminished view of his reputation
because of the Citizen[s’] Voice article.” Id. Additionally, although Judge Van Jura
recognized Joseph, Jr. testified he stopped using his name in public approximately six
months before the 2011 trial, the Judge concluded Joseph, Jr. offered no evidence that
his decision to do so related in any manner to the Citizens’ Voice article. Id.
Finally, as it relates to Acumark and Airport Limousine, Judge Van Jura examined
the evidence and relevantly concluded “[n]ot a single third party testified that Acumark or
Airport Limousine had a diminished reputation attributable to the statements ‘of and
concerning’ those [parties] in the Citizen[s’] Voice newspaper.” Id. at 29. Judge Van
Jura noted Joseph, Sr. testified the Citizens’ Voice articles negatively impacted his
[J-35-2015] - 50
businesses’ reputations; however, Judge Van Jura rejected the testimony as incredible,
noting that, though given other opportunities to do so, Joseph, Sr. never indicated, prior to
the instant litigation, that his businesses’ reputations were diminished by the articles. Id.
at 29-30. Judge Van Jura further indicated Joseph, Sr.’s instant testimony was
“completely at odds with his testimony[,]” which he gave in his accident case regarding his
businesses. Id. at 34. Furthermore, although Appellees presented expert testimony in
an effort to prove the businesses suffered lost revenue, Judge Van Jura noted the expert
“admitted that he did not offer an opinion on causation at all.” Id. at 32 (emphasis and
citation to record omitted).
We conclude Judge Van Jura properly exercised his discretion in concluding
Appellees failed to meet their burden of proving they suffered any actual reputational
injury in connection with the publication of the articles. O’Connell, 521 Pa. at 248, 555
A.2d at 875. Since the record supports Judge Van Jura’s reasons and factual basis, the
Superior Court erred in failing to defer thereto. See Morrison, 538 Pa. at 134, 646 A.2d
at 571. As such, we agree with the Media Defendants that the Superior Court improperly
remanded the case for the trial court for further consideration of Appellees’ claims of
actual reputational injury.14
14 Moreover, in remanding for a new trial as to Joseph, Sr.’s claim for reputational
injuries, the Superior Court concluded, to the extent the trial court found the August 6,
2001, article was not “of and concerning” Joseph, Sr., and thus failed to consider whether
the article damaged Joseph, Sr.’s reputation, the trial court erred. Joseph II, 89 A.3d at
267-69. However, in ordering a new trial on this basis, the Superior Court failed to
recognize that Judge Van Jura provided this as an alternate reason for finding Joseph, Sr.
did not prove the article caused him actual reputational harm. See Trial Court Opinion
filed 12/8/1 at 26-28. The “crux” of Judge Van Jura’s analysis is that, even if he were to
consider Joseph, Sr.’s claim of reputational harm due to the August 6, 2001, article, he did
not find Joseph, Sr.’s testimony to be credible. Id. We conclude Judge Van Jura
(continuedU)
[J-35-2015] - 51
The Media Defendants next contend the Superior Court erred in determining a
new trial is warranted for the trial court to consider whether Appellees proved the Media
Defendants published the defamatory articles with actual malice. As indicated supra,
unless the federal High Court concludes the Constitution requires otherwise, we permit
private plaintiffs in libel cases involving media defendants to recover presumed and
punitive damages upon their satisfaction of the New York Times actual malice test.
In analyzing the instant claim, we initially note that, as the Superior Court
concluded, Judge Van Jura made no assessment of whether Appellees proved the Media
Defendants published the articles with actual malice. Moreover, while Judge Van Jura
acknowledged that private figure plaintiffs such as Appellees are required to prove, at a
minimum, negligence in order to establish liability for defamation, see Trial Court Opinion
filed 12/8/11 at 12, 22, we agree with the Media Defendants that he did not explicitly opine
as to whether Appellees met their burden in this regard. Instead, Judge Van Jura
concluded Appellees failed to meet their burden of proving the articles caused them an
actual injury, which is constitutionally mandated by Gertz when private figure plaintiffs rest
their defamation claims upon a negligence theory. However, we agree with the Superior
Court that Judge Van Jura erred in failing to make a determination as to whether
Appellees met the New York Times actual malice standard since Appellees argued in the
trial court that the Media Defendants published the articles with actual malice, and thus
sought presumed and punitive damages. Notwithstanding, we disagree with the
Superior Court that a remand is necessary as to this issue.
(Ucontinued)
properly exercised his discretion in this regard. See Morrison, 538 Pa. at 134, 646 A.2d
at 571.
[J-35-2015] - 52
“[T]he requirement that the plaintiff be able to show actual malice by clear and
convincing evidence is initially a matter of law.” Tucker, 577 Pa. at 626, 848 A.2d at 130
(citation omitted). “The question whether the evidence in the record in a defamation
case is sufficient to support a finding of actual malice is a question of law.” Milkovich,
497 U.S. at 17, 110 S.Ct. at 2705 (quotation marks and quotation omitted). This rule is
premised on “the unique character of the interest protected by the actual malice
standard.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685-86,
109 S. Ct. 2678, 2695 (1989). More fundamentally, the rule is derived from the
recognition that “[j]udges, as expositors of the Constitution, must independently decide
whether the evidence in the record is sufficient to cross the constitutional threshold that
bars the entry of any judgment that is not supported by clear and convincing proof of
‘actual malice.’” Bose Corp., 466 U.S. at 511, 104 S.Ct. at 1965.
Thus, in New York Times, after concluding the actual malice standard was
applicable and the trial court judge erred in failing to instruct the jury properly as to the
actual malice requirement, the U.S. Supreme Court reversed the judgment, holding the
following:
Since respondent may seek a new trial, we deem that considerations
of effective judicial administration require us to review the evidence in the
present record to determine whether it could constitutionally support a
judgment for respondent. This Court’s duty is not limited to the elaboration
of constitutional principles; we must also in proper cases review the
evidence to make certain that those principles have been constitutionally
applied. This is such a case, particularly since the question is one of
alleged trespass across ‘the line between speech unconditionally
guaranteed and speech which may legitimately be regulated.’ In cases
where that line must be drawn, the rule is that we ‘examine for ourselves the
statements in issue and the circumstances under which they were made to
see . . . whether they are of a character which the principles of the First
Amendment, as adopted by the Due Process Clause of the Fourteenth
Amendment, protect.’ We must ‘make an independent examination of the
[J-35-2015] - 53
whole record,’ so as to assure ourselves that the judgment does not
constitute a forbidden intrusion on the field of free expression.
New York Times, 376 U.S. at 284-85, 84 S.Ct. at 728-29 (quotations, citations, and
footnote omitted).
As to what constitutes actual malice, the federal High Court has held the standard
is not met through a showing of ill will or malice in the ordinary sense of the term, by virtue
of the fact the media defendant published the material to increase its profits, or the failure
to investigate before publishing, even when a reasonably prudent person would have
done so, although the purposeful avoidance of the truth is in a different category.
Harte-Hanks Communications, Inc., 491 U.S. at 666-92, 109 S.Ct. at 2685-98. Rather,
actual malice requires “at a minimum that statements were made with a reckless
disregard for the truth.” Id. at 667, 109 S.Ct. at 2686. That is, “the defendant must have
made the false publication with a ‘high degree of awareness . . . of probable falsity,’ or
must have ‘entertained serious doubts as to the truth of his publication[.]’” Id. (quotations
omitted). Although courts should not place too much reliance on such factors, a media
defendant’s state of mind, including actual malice, may be proven by the plaintiff through
circumstantial evidence. Id. at 668, 109 S.Ct. at 2686. Also, “[t]he standard is a
subjective one--there must be sufficient evidence to permit the conclusion that the
defendant actually had a ‘high degree of awareness of . . . probable falsity.’” Id. at 688,
109 S.Ct. at 2696 (quotation omitted). With these standards in mind, we now review the
record to determine whether it could sufficiently support a finding of actual malice by clear
and convincing proof. Bose Corp, 466 U.S. at 511, 104 S. Ct. at 1965.
Lewis testified that, at the time he was writing the articles at issue, he knew that
using anonymous sources, though critical to some important news stories, increased the
[J-35-2015] - 54
risk of inaccurate information. N.T. 5/2/11-5/13/11 at 113.15 Lewis admitted he relied
upon information from six confidential sources in order to write the articles at issue;
however, he knew the confidential sources “well before [he] started writing these stories.”
Id. at 121. He noted the sources were in a position of authority to obtain the information,
he trusted the sources, and he believed what the sources were telling him. Id. at 233,
247-48.
Moreover, Lewis informed the newspaper’s editors of the identity of his confidential
sources prior to the publication of the articles, he reviewed the sources’ statements with
the editors, and the editors gave him clearance to write the articles. Id. at 130, 249, 252.
In providing information, two of the sources came to the newsroom to meet with Lewis.
Id. at 195-97. After the stories were published, neither Joseph, Sr. nor Joseph, Jr.
contacted Lewis to complain about the articles, and they never asked for a retraction. Id.
at 255-56.
Concerning the grand jury proceedings and video surveillance of Appellees, Lewis
indicated his confidential source was involved in law enforcement, he had provided him
with past tips that proved to be true, and based on his recollection, he believed he verified
the information with a second source. Id. at 125-35, 152-53, 224-29. He admitted he
did not independently verify the source by reviewing judicial records or court orders, and
after a grand jury indictment was returned for D’Elia, he did not return to his source to
inquire why the information provided to him about Joseph, Sr. was not included in the
indictment. Id. at 152-53, 158-63.
15The trial before Judge Van Jura spanned multiple days from May 2, 2011, to May 13,
2011, and this Court was provided with one complete transcript pertaining thereto.
[J-35-2015] - 55
Regarding the statements published in the Citizens’ Voice concerning a limousine
and taxi service being used as a means to transport money, drugs, prostitutes, and guns,
Lewis indicated his source was a driver at the service. Id. at 163-64, 212. Lewis
indicated that, after he wrote the article, he reviewed the search warrant related to the
investigation, and it discussed the transferring of suitcases and other contraband from the
airport. Id. at 164. He admitted the search warrant did not mention prostitutes. Id. at
164-65.
With regard to statements suggesting drug arrests at Lavelle’s Pub were related to
the investigation, Lewis did not go to Lavelle’s Pub to determine whether anyone knew
Joseph, Sr. or Joseph, Jr. Id. at 166-67. Furthermore, he admitted he wrote that “a
frequent visitor at Lavelle’s Pub is a relative to one of the three persons who received a
target letter of the ongoing federal grand jury investigation.” Id. at 174. He indicated he
wrote this based on information provided to him by a confidential source and without
viewing a target letter; however, he believed he verified the information with a second
source. Id. at 174-75, 181-82, 226. After the grand jury returned an indictment for
D’Elia, Lewis did not return to his source to ask why there was no mention of the target
letter contained therein. Id. at 180-81.
Lewis relied upon information provided to him by a confidential source regarding
The Metro, who informed Lewis that he testified before a grand jury that was investigating
money laundering. Id. at 202, 206. The source told him that $3 million was laundered
through The Metro, and to ensure he heard the source correctly, Lewis asked him three
times about the amount of money, which was allegedly laundered through The Metro.
Id. at 202. After the grand jury indictment was returned for D’Elia, Lewis did not return to
[J-35-2015] - 56
his source to ask why there was no mention of $3 million being laundered through The
Metro. Id. at 207-08.
Conmy confirmed he independently wrote articles and assisted Lewis with writing
articles. Id. at 275-77. In gaining information for the articles, he utilized four confidential
sources, including a “high level Lackawanna County official.” Id. at 287-89. As to
information contained in the articles regarding searches by authorities, Conmy testified
he relied on information provided to him by Pete Trucksis, a federal special agent. Id. at
274-80. Conmy admitted he had no personal knowledge of a money laundering scheme
or video surveillance of Appellees. Id. at 285-86. However, prior to writing the articles,
he personally observed multiple agents carrying boxes out of Acumark’s offices when it
was searched by authorities. Id. at 299-300.
Furthermore, Conmy telephoned Joseph, Sr.’s civil attorney, who informed him
Joseph, Sr.’s and D’Elia’s residences had been searched. Id. at 303-04. Conmy knew
Joseph, Sr.’s attorney personally, and he spoke to him several times during the summer
of 2001. Id. at 311. Joseph, Sr.’s attorney neither indicated the information in the
articles was false nor asked for a retraction. Id. at 311, 314. Conmy testified that at the
time he wrote and contributed to the articles, he believed the information contained
therein to be true and he had no doubt as to the accuracy of the articles. Id. at 309,
313-14.
Joseph, Sr. testified no one from the Citizens’ Voice contacted him to determine
whether he had received a target letter. Id. at 516. He confirmed that during the
summer and fall of 2001, he never asked the Citizens’ Voice for a retraction or correction
of any of the articles. Id. at 598. Moreover, he never asked his attorney to seek a
[J-35-2015] - 57
retraction or correction of the articles. Id. at 598-99. Joseph, Jr. confirmed he, also, did
not contact the newspaper for any correction. Id. 1405-06.
Christopher Harper (“Harper”), an associate professor of journalism, testified as an
expert on behalf of Appellees. He indicated the use of confidential sources can be “very
dangerous because the individual making the statements is not held accountable other
than by the journalist who knows that individual’s name.” Id. at 924. Harper opined the
editors in this case should have been more actively involved in overseeing the reporters’
use of confidential sources, and the failure to do so was a violation of the newspaper’s
own standards. Id. at 925-29, 954. He testified the articles violated the newspaper’s
own written policies on ethics, as well as generally accepted newsroom practices, by
relying excessively on confidential sources. Id. at 929, 932-36, 939, 942, 944, 948-49,
966, 970-71, 980.
Harper indicated the frequent use of confidential sources in this case increased the
risk of inaccuracy, and the editors should have done their due diligence to ensure the
accuracy of the articles. Id. at 971-73. Harper acknowledged evidence revealed that, in
July or August of 2001, the then managing editor of the Citizens’ Voice, Paul Leonard
Golias (“Golias”), met with Lewis and Conmy to review the articles, and he determined the
confidential sources were credible. Id. at 1011-14. However, Harper opined he “would
expect more than that” from Golias. Id. at 1012. Moreover, Harper noted that one of the
editors indicated in his deposition that he believed Joseph, Sr. had ties to organized crime
and, therefore, under prevailing standard newsroom practices, he should have reported
his personal bias to his superiors without participating in the publishing of the articles. Id.
at 996-99.
[J-35-2015] - 58
Harper opined that Lewis and his editor could have ensured the accuracy of the
report of a target letter by requesting to review the document before reporting on it. Id. at
964-65. Harper reasoned, to a reasonable degree of certainty, that the articles did not
conform to the standard of care expected of professional journalists. Id. at 981. He
noted there were opportunities for the reporters to pursue information from sources other
than confidential sources; however, Lewis and Conmy did not avail themselves of them.
Id. at 981-82, 1005. With regard to Lewis corroborating the information he received from
one confidential source with information from another confidential source, Harper testified
“it is standard practice within journalism that you do not corroborate with a source who is
confidential or anonymous. You need to corroborate with someone on the record.” Id.
at 1019.
Golias confirmed that prior to the publication of the August 5, 2001, article he met
with Lewis and Conmy to review the development of the story, as well as the sources. Id.
at 1584-85. At this meeting, he learned the identity of the reporters’ confidential sources,
and based on his experience, he believed the information provided by the sources was
accurate. Id. at 1585-86, 1600, 1609-10. Golias admitted the use of confidential
sources increases the risk of inaccurate information. Id. at 1590.
Applying the relevant standards, we conclude the proof presented to show actual
malice lacks the convincing clarity which the constitutional standard demands, and hence
that it could not constitutionally sustain a judgment for presumed or punitive damages in
favor of Appellees under the proper rule of law. The evidence against the Media
Defendants supports, at most, a finding of negligence, and thus, it is constitutionally
insufficient to show the recklessness required for a finding of actual malice. See
[J-35-2015] - 59
Sprague v. Walter, 518 Pa. 425, 437, 543 A.2d 1078, 1084 (1988) (indicating, to establish
actual malice, the plaintiff’s burden “requires more than a consideration of whether a
reasonably prudent man would have published the article without further investigation,
but rather requires the presentation of ‘sufficient evidence to permit the conclusion that
the defendant in fact entertained serious doubts as to the truth of his publication.’”)
(quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325 (1968)
(emphasis omitted)). Consequently, we agree with the Media Defendants that the
Superior Court erred in remanding for a new trial as to this issue.
In their final argument, the Media Defendants contend that, to the extent we agree
with the Superior Court as to the damages and actual malice issues, we should remand
for the trial court to make relevant findings and conclusions as to all of the elements
necessary to establish liability for defamation. The Media Defendants aver the Superior
Court’s limited remand is based on the mistaken assumption that Judge Van Jura found in
favor of Appellees as to all elements establishing liability for defamation when, in fact,
Judge Van Jura did not determine, inter alia, whether Appellees proved, at a minimum,
the Media Defendants published the articles negligently. In light of our discussion supra
concluding the Superior Court erred in remanding for a new trial, it is unnecessary to
address this final contention further.16
16 Relying upon its analysis pertaining to Appellees’ failure to prove actual injury with
regard to their defamation claims, the trial court rejected Appellees’ claims of false light
invasion of privacy. See Trial Court Opinion filed 12/8/11 at 35-36. Noting the trial
court’s failure to award damages to Appellees as to their false light invasion of privacy
claims was entirely premised upon the trial court’s “erroneous” analysis pertaining to
Appellees’ defamation damages claims, the Superior Court summarily reversed and
ordered a new trial for consideration of damages for Appellees’ false light invasion of
privacy claims. Joseph II, 89 A.3d at 273-74. Having concluded the Superior Court
(continuedU)
[J-35-2015] - 60
IV. Conclusion
In conclusion, we affirm that portion of the Superior Court’s order which affirmed
the trial court’s order denying Appellees’ post-trial motion for a new trial, and we reverse
that portion of the Superior Court’s order which reversed and remanded as to the trial
court’s order denying Appellees’ post-trial motion for a new trial. As there are no
outstanding appellate issues, we reinstate the order of the trial court denying Appellees’
post-trial motion for a new trial and judgment in favor of the Media Defendants.
Jurisdiction relinquished.
Mr. Chief Justice Saylor and Madame Justice Todd join the opinion.
Mr. Justice Eakin authors a CO/DO to which Mr. Justice Baer joins.
(Ucontinued)
erred in finding a new trial was warranted to address Appellees’ defamation damages
claims, we likewise conclude the Superior Court erred finding a new trial is warranted as
to Appellees’ false light invasion of privacy damages claims.
[J-35-2015] - 61