Slozer, O. v. Slattery, P. ( 2015 )

J-A15028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
OTTO SLOZER AND JOHN DONCHES IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
PATRICK SLATTERY; WESLEY BARRETT;
CRAIG NEELY; CITIZENS FOR STRONG
COMMUNITIES; JENAE WOLFE
HOLZHAFER; INTERNET POSTER 1 A/K/A
“CARIBBEAN QUEEN” AND JOHN AND
JANE DOE 2-10
Appellees No. 2566 EDA 2014
Appeal from the Order Entered August 22, 2014
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2012 C 1603
BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 18, 2015
Appellants, Otto Slozer and John Donches, plaintiffs in the underlying
defamation suit, appeal from the August 22, 2014 order granting the various
motions for summary judgment filed by Appellees, Patrick Slattery, Wesley
Barrett, Craig Neely, Citizens for Strong Communities (Citizens), and Jenae
Wolfe Holzhafer,1 the named defendants in the defamation suit, and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Ms. Holtzhafer noted in her motion for summary judgment that her name
had been misspelled as “Holzhafer” throughout the proceedings. Because
the rest of the record retains the “Holzhafer” spelling, we have done the
same for the sake of consistency.
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dismissing Appellants’ complaint with prejudice. After careful consideration,
we affirm.
The trial court supplied the following summary of the factual and
procedural background in this case.
[T]he relevant facts are as follows.
In the context of a local municipal election in
the Borough of Emmaus in the fall of 2011, []
Slattery -- through an organization he headed, []
Citizens [] -- published a website entitled
“Ottosback.com” in reference to [] Slozer. Slozer
had previously served as an elected member of the
Emmaus Borough Council in 1990-1999, including
service in the office of Borough Council President for
three of those years. He subsequently ran
unsuccessfully for Council in 2003.
After leaving office, Slozer has continued to be
visibly engaged in Emmaus politics and
controversies. To that end, he has served on the
board of directors of an activist group, entitled,
“Concerned East Penn Taxpayers Association”
(“CEPTA”), which, among other things, has publicly
advocated against public spending and has hosted
candidate debates, some of which Slozer himself has
moderated. Additionally, Slozer regularly writes for
a local newspaper entitled The Lehigh Valley
Commentator, which received startup funding from
CEPTA. In his own words, Slozer uses that forum “to
get [his] point of view out,” and claims it has a
circulation of 13,000. It also appears undisputed
that Slozer’s local reputation has been acknowledged
by a prominent weekly columnist in the Lehigh
Valley’s largest commercial newspaper, The Morning
Call, who has recognized Slozer as a member of the
columnist’s informal Hall of Fame of “famous people
from the Lehigh Valley,” in which Emmaus is located.
The aforementioned website, “Ottosback.com,”
published materials indicating that two of the then-
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current candidates for Emmaus Borough Council,
including [] Donches, were affiliated with Slozer, and
indicated that a vote for these persons would be
tantamount to a vote for Slozer. In urging viewers
not to vote for Donches and the other candidate, the
website offered negative commentary about Donches
and Slozer. [Appellants] base the present
defamation action upon the substance of several of
those comments which, [Appellants] allege, accused
Donches of being a thief by taking a DVD not
belonging to him and stealing campaign signs,
assaulting a man in a road rage incident, and
suffering from mental illness. [Appellants] also
maintain that the website falsely accused Slozer of
mental illness as well.
In April 2012, [Appellants] filed suit against,
inter alia, [] Slattery[, Holzhafer,] and Citizens [] as
well as several unidentified “John Doe” Defendants.
Although the website was online from October 2011
through [E]lection [D]ay in November 2011,
[Appellants] did not name [] Neely and [] Barrett
until the filing of a second amended complaint in July
2013, well beyond the one-year period of limitation
applicable to defamation actions, as provided in 42
Pa.C.S. § 5523(1). Hence, [on May 16, 2014, and
May 23, 2014,] those defendants move[d
respectively] for summary judgment on that basis.
[] Holzhafer, on May 30, 2014,] move[d] for
summary judgment on different grounds, arguing
that merely posting a link on one’s website without
substantive commentary will not constitute a
publication of the allegedly defamatory material
contained on the linked site.
[On May 29, 2014,] [] Slattery and []Citizens
[] move[d] for summary judgment for other reasons,
contending that, as a matter of law, the materials
set forth are incapable of defamatory meaning as
factual allegations. In particular, these [Appellees]
argue that the comments about Slozer’s personality
and mental traits, which appeared on the website,
were merely opinions and otherwise fair game in the
rough-and-tumble world of politics. As such, they
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contend the statements are not actionable.
Additionally, they argue that, in view of the public-
figure status of both [Appellants], there is
insufficient evidence of actual malice, in the form of
evidence that [Appellees] knew the statements were
false or acted in reckless indifference to the truth of
any matter published. More specifically, Slattery
points to evidence indicating that Donches has
admitted in deposition that he did verbally confront
and grab a motorist in a traffic altercation and that
he did, in fact, take possession of the subject DVD
without permission, thereby justifying the allegation
that Donches stole property, as alleged in the
website. Slattery contends that in light of these
admissions, he cannot be deemed to have acted in
reckless disregard of the truth. Finally, in relation to
the campaign signs, Slattery maintains he never
accused Donches of stealing these materials.
Rather, he insists that [Appellants’] reading of the
website referencing removal of political signs
represents a mischaracterization of the information
actually published.
Trial Court Opinion, 8/22/14, at 2-4 (citations omitted).
Argument on the various motions for summary judgment was held on
August 20, 2014. On August 22, 2014, the trial court issued an order
granting all of the Appellees’ various motions for summary judgment and
dismissing Appellants’ claims with prejudice. Appellants filed a timely notice
of appeal on September 9, 2014.2
____________________________________________
2
Appellants and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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On appeal, Appellants raise 18 overlapping issues in the “questions
presented for review” section of their brief.3 However, the Argument section
of their brief is divided into only five sections with alternatively phrased
headings describing the issues addressed in each section. This fails to
comply with the briefing requirements set forth in the Pennsylvania Rules of
Appellate Procedure. See Graziani v. Randolph, 856 A.2d 1212, 1216 (Pa.
Super. 2004) (noting a brief containing argument sections that do not clearly
correspond to the questions presented violates Rule 2116(a)). However, to
the extent Appellants’ arguments essentially streamline and subsume the
issues articulated in his questions presented, we will address them as
presented in their argument section. See Lundy v. Manchel, 865 A.2d
850, 855 (Pa. Super. 2004) (addressing the merits of appellants arguments
to the extent they were similar to the questions presented). The issues so
described in the argument section are as follows.
A. [Whether t]he trial court erred in its conclusion
that the website www.ottosback.com did not defame
[Appellants] when the allegations of criminal activity
and mental illness attributed to Appellants was
demonstrably false and done with malice[?]
B. [Whether] [] Donches was falsely accused of
theft of campaign signs by [] Slattery in another
____________________________________________
3
The statement of questions presented for review are identical to those
posed in Appellants’ Rule 1925(b) statement. See Appellants’ Brief at 2-4,
and Rule 1925(b) Concise Statement, 9/25/14, at 1-2. Nevertheless, for the
reasons explained above we elect to address the issues as argued by
Appellants in their appellate brief.
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Internet posting and thereby defamed Candidate
Donches[?]
C. [Whether] [] Slozer is a private person for
purposes of this action[?] [Whether] Donches is a
public figure[?]
D. [Whether] Defamation through social media,
Facebook, is a novel question in Pennsylvania[?]
E. [Whether] [] Neely and Barrett are proper
defendants in this matter[?]
Appellants’ Brief at 6, 13, 15, 19-20.
We begin by acknowledging the standard of review governing our
consideration of this appeal. “[O]ur standard of review of an order granting
summary judgment requires us to determine whether the trial court abused
its discretion or committed an error of law[,] and our scope of review is
plenary.” Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa. Super.
2012) (citations omitted). “We view the record in the light most favorable to
the nonmoving party, and all doubts as to the existence of a genuine issue
of material fact must be resolved against the moving party.” Barnes v.
Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing Erie Ins. Exch. v.
Larrimore, 987 A.2d 732, 736 (Pa. Super. 2009) (citation omitted). “Only
where there is no genuine issue as to any material fact and it is clear that
the moving party is entitled to a judgment as a matter of law will summary
judgment be entered.” Id. The rule governing summary judgment has
been codified at Pennsylvania Rule of Civil Procedure 1035.2, which states as
follows.
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Rule 1035.2. Motion
After the relevant pleadings are closed, but within
such time as not to unreasonably delay trial, any
party may move for summary judgment in whole or
in part as a matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the
cause of action or defense which could be
established by additional discovery or expert
report, or
(2) if, after the completion of discovery
relevant to the motion, including the
production of expert reports, an adverse party
who will bear the burden of proof at trial has
failed to produce evidence of facts essential to
the cause of action or defense which in a jury
trial would require the issues to be submitted
to a jury.
Pa.R.C.P. 1035.2.
“Where the non-moving party bears the burden of proof on an issue,
he may not merely rely on his pleadings or answers in order to survive
summary judgment.” Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa.
Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa. 2013).
Further, “failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a matter of
law.” Id.Thus, our responsibility as an appellate court is to
determine whether the record either establishes that
the material facts are undisputed or contains
insufficient evidence of facts to make out a prima
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facie cause of action, such that there is no issue to
be decided by the fact-finder. If there is evidence
that would allow a fact-finder to render a verdict in
favor of the non-moving party, then summary
judgment should be denied.
Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa. Super.
2011), quoting Jones v. Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007)
(internal citations omitted).
In a defamation case, the plaintiff has the burden of proof on the
following elements.
§ 8343. Burden of proof
(a) Burden of plaintiff.--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.A. § 8343(a).
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We proceed to address the merits of Appellants’ issues, albeit in a
different order than presented in their brief. As related above, each motion
for summary judgment filed by the various Appellees sought relief on distinct
grounds. Appellants’ issue “E” addresses the trial court’s grant of the motion
for summary judgment brought by Neely and Barrett on the grounds the
action against them was barred by the statute of limitations. Appellants’
Brief at 20. The parties acknowledge that the applicable statute of
limitations for Appellants’ defamation action requires commencement within
one year.4 Id. Appellants assert that, with respect to Neely and Barrett,
their inclusion of “John Doe” as an unknown defendant responsible for
creation and dissemination of the offending website within the one-year
period is sufficient to satisfy the statute when they promptly amended the
complaint to add Neely and Barrett by name upon learning of their identity.
Appellants’ Brief at 23.
[Appellants] speculated that there were others
involved in the campaign and website but had no
hard evidence to prove that Neely and Barrett were
involved. [Appellants] timely filed their initial
____________________________________________
4
The statute provides as follows.
§ 5523. One year limitation
The following actions and proceedings must be
commenced within one year:
(1) An action for libel, slander or invasion of privacy.
42 Pa.C.S.A. § 5523(1).
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complaint in April 2012 naming John and Jane
[]Does [] to preserve the statute of limitations,
regarding the possible existence of other defendants
whose involvement came to light as the case
progressed.
…Assuming the propriety of the John Doe filing in the
original complaint filed in April 2012, the action was
timely filed within the one year statute of limitations.
The ultimate discovery of the identity of the creators
of the website came in April 2013. Plaintiffs
promptly filed a motion to amend the complaint to
add Neely and Barrett which [the trial c]ourt allowed.
The amended complaint was then filed after the
motion was granted on July 17, 2013.
Id. at 20, 23.
Appellants alternatively suggest the statute did not commence until
they discovered not only the injury from the alleged defamation but the
identity of the persons responsible. Id. at 22. “However, [] Neely and
Barrett solely focus on the date of discovery of the injury which covers a
time period from October 12, 2011 through November 8, 2011. The
problem is that [Appellants] in this case did not know who caused the injury
beyond Citizens [], [] Slattery and [] Holzhafer.” Id. Finally, Appellants
make reference to the application of the “discovery rule,” outlining their due
diligence in ascertaining the identity of Neely and Barrett, and the lack of
cooperation of the Appellees in that effort. Id. at 20-21.
Generally, a statute of limitations period begins to
run when a cause of action accrues; i.e., when an
injury is inflicted and the corresponding right to
institute a suit for damages arises. It is the duty of
the party asserting a cause of action to use all
reasonable diligence to properly inform him-or
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herself of the facts and circumstances upon which
the right of recovery is based and to institute suit
within the prescribed period. Generally, once the
prescribed statutory period has expired, the
complaining party is barred from bringing suit.
Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011). Contrary to
Appellants’ implication, neither the commencement of the running of a
statute of limitations, nor the application of the “discovery rule” is dependent
on a plaintiff’s knowledge of the identity of the individual causing the injury.
[T]he general rule that a cause of action accrues,
and thus the applicable limitations period begins to
run, when an injury is inflicted. In certain cases
involving latent injury, and/or instances in which the
causal connection between an injury and another’s
conduct is not apparent, the discovery rule may
operate to toll the statute of limitations until the
plaintiff discovers, or reasonably should discover,
that she has been injured and that her injury has
been caused by another party’s conduct.
Wilson v. El-Daief, 964 A.2d 354, 361-362 (Pa. 2009) (citations omitted;
emphases added).
Instantly, it is undisputed that Appellants became aware of the alleged
defamatory statement in the website and of their alleged injury therefrom by
at least November of 2011. Trial Court Opinion, 8/22/14, at 5. Appellants
did not add Neely and Barrett to the amended complaint until July 24, 2013,
well after the one-year limitation triggered by Appellants’ discovery of their
injury and cause of action. See Gleason, supra. Further, their inability to
identify Neely and Barrett did not toll the running of the statute of limitation
as to those Appellees. See Wilson, supra.
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We also conclude that the filing of a “John Doe” complaint did not
bring Appellants into compliance with the one-year period to commence an
action against Neely and Barrett. An unidentified “John Doe” defendant,
who has not been served or entered an appearance, is not a legal party to a
suit. Weiley v. Albert Einstein Med. Ctr, 51 A.3d 202, 215 (Pa. Super.
2012). This Court has noted its disagreement with the “proposition that a
defendant can be named as “John Doe” in the original complaint and later
the plaintiff can substitute the real name after the defendant’s true identity
has been discovered even though the statute of limitations has expired.”
Anderson Equip. Co. v. Huchber, 690 A.2d 1239, 1242 (Pa. Super. 1997);
see also Commonwealth v. Laventure, 894 A.2d 109, 116-117 (Pa.
2006) (applying the same principles in disapproving of the Commonwealth’s
attempt to substitute in an amended complaint a known named defendant
for the “John Doe” defendant named in the original complaint after the
expiration of the applicable statute of limitations). Appellants here attempt
to do precisely what this Court disallowed in Anderson. Accordingly, we
conclude the trial court properly granted Neely and Barrett’s motions for
summary judgment because Appellants cannot state a valid claim against
them. See Barnes, supra.
In their issue “D”, Appellants fault the trial court for granting
Holzhafer’s motion for summary judgment on the grounds that her only
action was a mere posting of a link to the site without substantive
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commentary, and therefore does not constitute publication of the alleged
defamatory statement. Appellants’ Brief at 15. Further, Appellants argue
that Holzhafer, although not a party to the composing and initial publishing
of the allegedly defamatory statements, did more than merely link to the
“ottosback” website. They assert that by “liking” the link on her Facebook
page, Holzhafer communicated her attitude to the substance of the
referenced article, sufficient to be considered a republication of the alleged
defamation. Id. at 17. Accordingly, Appellants argue Holzhafer’s posting of
a link to the allegedly defamatory article accompanied with a “like”
designation is sufficient republication of the defamatory statements to create
a cause of action against Holzhafer. Id. We disagree.
Citing In re Phila. Newspapers, LLC, 690 F.3d 161, 173-175 (3d
Cir. 2012) and the Restatement (Second) of Torts §§ 577, 581, the trial
court concluded “the mere posting of a link on one’s website without
substantive commentary will not constitute a republication of any linked
materials so as to state a claim for defamation.” Trial Court Opinion,
8/22/14, at 6. Specifically, the trial court described Holzhafer’s link and
attendant comments on her Facebook page as follows. “In this case, the
only statement uttered by Holzhafer consisted of a reference to the website
coupled with the following exhortation: ‘Oh, politics … this is when I’d like to
fast forward to November 9 and know what the future holds! This election is
critical. Please get out and vote!’” Id. The trial court concluded that
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“[u]nder any reasonable assessment, this cannot be deemed a publication of
any underlying defamatory material that may or may not appear at the
linked website.” Id.
In Phila. Newspapers,5 the Third Circuit Court of Appeals noted that
“Pennsylvania courts have not considered whether the single publication rule
applies to Internet publication.”6 Phila. Newspapers, supra at 174. The
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5
We recognize “pronouncements of the lower federal courts have only
persuasive, not binding, effect on the courts of this Commonwealth—
although we certainly are bound by the decisions of the U.S. Supreme Court
on questions of federal law.” Gongloff Contracting, L.L.C. v. L. Robert
Kimball & Assocs., Architects and Eng’rs, Inc., 119 A.3d 1070, 1078 n.6
(Pa. Super. 2015).
6
Pennsylvania has adopted the “single publication rule” by statute.
§ 8341. Single publication limitation
(a) Short title of section.--This section shall be
known and may be cited as the “Uniform Single
Publication Act.”
(b) General rule.--No person shall have more than
one cause of action for damages for libel or slander,
or invasion of privacy, or any other tort founded
upon any single publication, or exhibition, or
utterance, such as any one edition of a newspaper,
or book, or magazine, or any one presentation to an
audience, or any one broadcast over radio or
television, or any one exhibition of a motion picture.
Recovery in any action shall include all damages for
any such tort suffered by the plaintiff in all
jurisdictions.
(c) Bar by judgment.--A judgment in any
jurisdiction for or against the plaintiff upon the
substantive merits of any action for damages
(Footnote Continued Next Page)
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Third Circuit noted that under the rule, only one cause of action for a single
publication of defamatory statements may be brought, regardless of the
extent or timing of any circulation of that publication. Id. Republication of
the same content, however, may provide a new cause of action if it
constitutes a new edition of the defamatory material. Id. “Additionally,
under traditional principles of republication, a mere reference to an article,
regardless how favorable it is as long as it does not restate the defamatory
material, does not republish the material.” Id. at 175 (citation omitted).
Traditional principles of republication thus require
the retransmission of the allegedly defamatory
material itself for the doctrine to apply. However,
courts addressing the doctrine in the context of
Internet publications generally distinguish between
linking, adding unrelated content, or making
technical changes to an already published website
_______________________
(Footnote Continued)
founded upon a single publication, or exhibition, or
utterance, as described in subsection (b), shall bar
any other action for damages by the same plaintiff
against the same defendant founded upon the same
publication, or exhibition, or utterance.
42 Pa.C.S.A. § 8341.
Pennsylvania established this rule in response to the
concern that a contrary rule would render any
statute of limitations “meaningless in that an action
could be filed any time a defamatory article was
read, no matter the time lag between the actual
printing of the article and the reading of the article
by a third party.” Graham v. Today’s Spirit, 503
Pa. 52, 468 A.2d 454, 457 (1983).
McClenaghan v. Turi, 567 F. App’x. 150, 153-154 (3d Cir. 2014).
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(which they hold is not republication), and adding
substantive material related to the allegedly
defamatory material to an already published website
(which they hold is republication).
Several courts specifically have considered
whether linking to previously published material is
republication. To date, they all hold that it is not
based on a determination that a link is akin to the
release of an additional copy of the same edition of a
publication because it does not alter the substance of
the original publication. See, e.g., Sundance
Image Tech., Inc. v. Cone Editions Press, Ltd.,
No. 02–02258, 2007 WL 935703 (S.D.Cal. Mar. 7,
2007); Churchill v. State of N.J., 378 N.J. Super.
471, 876 A.2d 311 (2005).
Id. at 174.
We agree with the reasoning of the Third Circuit and conclude it
accurately reflects Pennsylvania law regarding the doctrines of single
publication and republication in defamation actions as they apply to internet
communications. We further conclude the trial court correctly applied those
principles to the facts of the instant case. Holzhafer, by providing a link to
the challenged posting, without reiterating the content of that posting did
not initiate a republication. Her motivations and her designation of the link
with a “like” as alleged by Appellants, is not equivalent to a reiteration of the
defamatory content as to constitute republication. See Phila.
Newspapers, supra at 174. Accordingly, we determine Appellants’ issue
“D” to be without merit and discern no error by the trial court in granting
Holzhafer’s motion for summary judgment.
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We proceed to address Appellants’ issue “C”, wherein Appellants assert
the trial court erred in determining that Slozer is a public figure. Appellants’
Brief at 13. “The classification of a plaintiff as a public or private figure is a
question of law to be determined initially by the trial court and then carefully
scrutinized by an appellate court.” Joseph v. Scranton Times L.P., 959
A.2d 322, 339, (Pa. Super. 2008) (internal quotation marks and citations
omitted) (Joseph I). “[O]ur review of this issue is plenary, as it involves a
question of law.” Brown v. Phila. Tribune Co., 668 A.2d 159, 162 (Pa.
Super. 1995), appeal denied, 675 A.2d 1241 (Pa. 1996), cert. denied, 519
U.S. 864 (1996).
A plaintiff’s status as a public figure will affect his or her burden in a
defamation case. “If the plaintiff is a public official or public figure, [he or]
she must prove also that the defendant, in publishing the offending
statement, acted with actual malice, i.e. with knowledge that [the
statement] was false or with reckless disregard of whether it was false or
not.” Joseph v. Scranton Times, L.P., 89 A.3d 251, 260-261 (Pa. Super.
2014) (citation omitted) (Joseph II), appeal granted, 105 A.3d 655 (Pa.
2014). A public-figure plaintiff must meet that burden by clear and
convincing evidence. Tucker v. Phila. Daily News, 848 A.2d 113, 127-128
(Pa. 2004).
“Because one individual’s speech has the ability to harm another
person’s reputation, there is an inevitable tension in the law between the
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goals of protecting freedom of expression and safeguarding reputation from
unjust harm.” Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa.,
923 A.2d 389, 395 (Pa. 2007) (additional citation omitted), citing, Gertz v.
Robert Welch, Inc., 418 U.S. 323, 342 (1974). Thus, the United States
Supreme Court determined as follows.
If the plaintiff is a public official or public figure… and
the statement relates to a matter of public concern,
then to satisfy First Amendment strictures the
plaintiff must establish that the defendant made a
false and defamatory statement with actual malice.
In contrast, states are free to allow a private-figure
plaintiff to recover by establishing that the defendant
acted negligently rather than maliciously.
Id. at 400 (citations omitted). Our Supreme Court has determined that “in
the context of defamation law the state Constitution’s free speech
guarantees are no more extensive than those of the First Amendment.” Id.(citations omitted).
[T]he First Amendment does not force states to
require a showing of actual malice where a private
person’s reputation is harmed, even where the
speech pertains to a matter of public or general
interest. Accordingly, this Court has… recognized
that any focus on whether the speech is of public or
private concern has been replaced by an inquiry into
whether the plaintiff is a public or private figure.
Id. at 399 (citations omitted).
[T]he classification as a public figure arises in two
circumstances: first, referring to an “all purpose”
public figure, the Court explained that, in some
instances an individual may achieve such pervasive
fame or notoriety that he becomes a public figure for
all purposes and in all contexts. Alternatively, a
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limited purpose public figure,” which according to the
Court is more common, is an individual who
“voluntarily injects himself or is drawn into a
particular public controversy and thereby becomes a
public figure for a limited range of issues. To
determine such status, the Court instructed that it is
necessary to consider the nature and extent of an
individual’s participation in the particular controversy
giving rise to the defamation.
Traditionally, a plaintiff could only be
considered a limited-purpose public figure relative to
a pre-existing controversy in which he elected to
participate. [H]owever… a controversy may be
created by a plaintiff’s own activities, particularly
with respect to widespread public solicitation and
advertisements.
Id. at 401-402 (some internal quotation marks and citations omitted).
“[I]nquiries into limited-purpose public figure status are particularized and
fact-sensitive.” Id. at 404. “[T]he requirement that the plaintiff be able to
show actual malice by clear and convincing evidence is initially a matter of
law. 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.”
Tucker, supra at 130.
Appellants concede that Donches, as a candidate for election to public
office is a public figure for the purposes of this case. Appellants’ Brief at 13.
Our review is therefore confined to the trial court’s determination that Slozer
is a limited-purpose public figure. Id. at 14.
Slozer was a public official until 2000. He is still a
concerned citizen. But he is a private person for
purposes of the legal analysis here. The [trial]
court[‘s] [] conclusion that Slozer is a public figure
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based upon his activities carried on 14 years ago and
Slozer’s participation in community affairs between
2000 and 2011 simply do not meet the … test to
determine a public figure status.
Id. at 14. In support of his argument, Slozer quotes Gertz as follows.
“We would not lightly assume that a citizen’s
participation in community and professional affairs
rendered him a public figure for all purposes. Absent
clear evidence of general fame or notoriety in the
community, and pervasive involvement in the affairs
of society, an individual should not be deemed a
public personality for all aspects of his life.”
Id. at 14-15, quoting Gertz, supra at 352 (emphasis added).
The trial court, however did not find Slozer a public figure for all
aspects of his life. Trial Court Opinion, 8/22/14, at 9. Rather, the trial court
tailored its finding to the particular circumstances surrounding the alleged
defamation. Id. The trial court explained as follows.
[I]n view of his unquestionably public role in the
relevant community of Emmaus, Slozer must also be
deemed a public figure for purposes of a defamation
analysis in the circumstance at issue in this case.
This conclusion is further compelled by the fact that
the statements at issue here are directly connected
to, and concerned with, criticisms of Slozer’s record
in his elected position in Emmaus municipal
government. Although it cannot be said that one
categorically renounces a private life in all respects
upon taking public office, it is but a truism to
acknowledge that public actions by a public servant
remain of legitimate public concern even after an
official leaves office. And where such an official
continues to participate vocally in public affairs, he
may not so easily dissociate himself from his role as
a “public figure.” On the present facts, there is,
therefore, no question that in the relevant
community of Emmaus, Plaintiff Slozer maintained
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the status of public figure during the 2011 campaign
season for the purposes of defamation law.
Id. at 8-9.
Our review of the record leads us to the same conclusion.
A person may become a limited purpose public figure
if he thrust[s] himself into the vortex of the
discussion of pressing public concerns. Such a
person uses purposeful activity to thrust his
personality into a public controversy. He becomes a
limited purpose public figure because he invites and
merits attention and comment. A person may
become a limited purpose public figure if he attempts
to have, or realistically can be expected to have, a
major impact on the resolution of a specific public
dispute that has foreseeable and substantial
ramifications for persons beyond its immediate
participants. A private individual, however, is not
automatically transformed into a public figure just by
becoming involved in or associated with a matter
that attracts public attention.
Joseph I, supra at 339 (internal quotation marks and citations omitted).
Here the record supports the conclusion Slozer, in the time since his stint as
council member continued to advocate issues and publically organize to
advance his political agenda. Cf. Brown, supra at 162 (holding dentist who
was thrust into controversy over his actions by press reports was not
thereby rendered a public figure). For these reasons we conclude the trial
court did not err in treating Slozer as a public figure for the purposes of this
case.
Finally, in their issues “A” and “B,” Appellants challenge the trial
court’s findings that the posting by Slattery and Citizens on the website
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ottosback.com from about October 8, 2011 to November 11, 2011, was not
capable of defamatory meaning where the same falsely claimed Appellants
engaged in criminal behavior and/or suffered from psychiatric illnesses.
Appellants’ Brief at 6-13.
“Whether a communication can be construed to have a defamatory
meaning is a question of law for the court to determine.” Joseph II., supra
at 262 (citation omitted). “If the court determines that the challenged
[communication] is not capable of a defamatory meaning, there is no basis
for the matter to proceed to trial.” Weber v. Lancaster Newspapers,
Inc., 878, A.2d 63, 78 (Pa. Super. 2005) (citation omitted), appeal denied,
903 A.2d 539 (Pa. 2006). “[H]owever, if there is an innocent interpretation
and an alternate defamatory interpretation, the issue must proceed to the
jury.” Krajewski v. Gusoff, 53 A.3d 793, 803 (Pa. Super. 2012) (emphasis
and citation omitted), appeal dismissed, 84 A.3d 1057 (Pa. 2014).
The determination of whether a statement is defamatory turns on “if it
tends to harm the reputation of another so as to lower him in the estimation
of the community or deter third persons from associating or dealing with
him.” Id. (citations omitted). Further, when considering whether a
communication is slanderous, “the Court must determine the effect of the
communication in the minds of average people amongst whom the
communication is intended to circulate.” Reardon v. Allegheny Coll., 926
A.2d 477, 484 (Pa. Super. 2007) (citation omitted), appeal denied, 947 A.2d
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738 (Pa. 2008). A statement is “defamatory if it ascribes to another
conduct, character or a condition that would adversely affect his fitness for
the proper conduct of his business.” Constantino v. Univ. of Pittsburgh,
766 A.2d 1265, 1270 (Pa. Super. 2001) (citation omitted). “It is not enough
that the victim of the [statements] … be embarrassed or annoyed, he must
have suffered the kind of harm which grievously fractured his standing in the
community.” Kurowski v. Borroughs, 994 A.2d 611, 617-618 (Pa. Super.
2010) (citations omitted), appeal denied, 12 A.3d 752 (Pa. 2010).
The internet website at issue addressed Donches’ candidacy for a seat
on the Borough Council for Emmaus Borough and sought to expose his
political connection with Slozer, a past Borough council member. Complaint,
4/16/12, Exhibit A at 1-5. In addition to characterizations of Donches and
Slozer’s supposed political positions and philosophy, the website contained
the following assertions, which Appellants claim are defamatory. In headline
fashion to a section discussing Donches, Slattery and Citizens, the website
included the following statements: “Stole Borough property in 2010,” and
“Assaulted a man in Lower Macungie.” Id. at 1. The posting continued in
paragraph form as set forth below.
Meet John Donches: John made headlines late last
year after he kindly stole Borough property from the
Service Electric TV studios in a delusional panic in
which he thought his wife’s comments at a public
meeting were altered. Borough Council decided to
let a man who suffers from unmedicated mental
health issues walk away scott-free [sic], apparently
compassionate about his untreated condition. It was
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not John’s only bout with the law. John was
summoned to court after assaulting a man in a road
rage incident in Lower Macungie Township in which
he violently ripped a man out of the front window of
his truck after driving close to John and his wife, who
were bicycling outside, blocking the road and travel
lane. John SNAPPED and darted after the driver until
he came to a stop. John assaulted the man at which
point the State Police arrived. John’s rage is well
known among ex-friends and those who watch
council meeting online or attend them in person.
Watching his blood boil and his face turn intense
shades of red as he represses a tantrum would be
funny if it wasn’t so scary to think that such an
unstable man is a proud card carrying NRA member.
Lock your doors!
Id. at 1-2.
In like fashion, the section addressing Slozer, commenced with the
following.
Meet Otto Slozer: Just thinking of Otto Slozer is
reminiscent of a psychological vocab test.
Megalomania: A delusional mental disorder that is
marked by feelings of personal omnipotence and
grandeur.
Paranoia: a psychosis characterized by systematized
delusions of persecution or grandeur usually without
hallucinations.
Delusional: A persistent false psychotic belief
regarding the self or persons or objects outside the
self that is maintained despite indisputable evidence
to the contrary.
Id. at 5.
Appellants, with regard to the mental health references contained in
the website, argued as follows.
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The Ottosback website says that [] Slozer suffers
from a variety of mental illnesses as defined in the
DSM. These were not mere opinion as the Court
below suggests. They were offered as facts by the
defendants without any basis in reality. Similarly,
allegations of mental illness are leveled against []
Donches.
Appellants’ Brief at 7. The trial court found, to the contrary, that the
website’s references to the Appellants’ mental health were not capable of
defamatory meaning.
Although hardly a lofty exposition of the issues
evidently at the forefront of the campaign -- much
less a shining example of political pamphleteering
worthy of the heritage bestowed by Paine and his
erudite cohort of Founding Fathers -- the statements
about Donches and Slozer are nevertheless not
capable of defamatory meaning as a matter of law.
Properly viewed in the context in which they appear,
the references to Donches’ and Slozer’s psychological
traits would fairly be received by the intended
audience as nothing more than opinionated
assessments of a political opponent’s character and
motivation.
Trial Court Opinion, 8/22/14 at 14. We agree.
First, the language used does not claim that a professional diagnosis
for any mental health issue exists. See Complaint, 4/16/12, Exhibit A at 1-
5. Rather the references draw parallels the author perceives between the
positions and actions of Appellants in the context of Borough politics and the
supposed symptomatic manifestations suggested by the definitions of certain
psychological conditions. Id. Read in the context of the whole posting it is
clear, as the trial court notes, that the import is that the political positions of
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Appellants are irrational in the view of the author because they are
“reminiscent” of conclusions and positions that would be generated by one
with such mental traits. Id. at 5. While the tone and manner of expression
may be crude, unartful, and vexing for Appellants, that does not raise the
author’s opinions in this regard, capable of defamatory meaning. See
Kurowski, supra. Accordingly, we discern no error by the trial court in
granting Slattery and Citizens’ motion for summary judgment relative to
Slozer’s defamation claim.
With respect to the averments in the posting averring criminal conduct
by Donches, the statements are more direct. Here the statements were not
stated as comparisons or opinion as was the case with the references to
“undiagnosed” mental health conditions. See Complaint, 4/16/12, Exhibit A
at 1-2. Rather the incidents were stated as facts of criminal conduct. Id.“Statements by a defendant imputing to the plaintiff a criminal offense,
punishable by imprisonment, or conduct incompatible with the plaintiff’s
business constitute slander per se.” Brinich v. Jencka, 757 A.2d 388, 397
(Pa. Super. 2000), appeal denied, 771 A.2d 1276 (Pa. 2001), citing
RESTATEMENT (SECOND) OF TORTS §§ 570(a), (c), 571, 573 (holding published
statement indicating plaintiffs misused construction loan funds to support a
drug habit is defamatory per se); see also Krajewski, supra (holding
publication of comments interpretable as impugning public figure plaintiff
with criminal conduct was capable of defamatory meaning); Agriss v.
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Roadway Exp., Inc., 483 A.2d 456, 462-463 (Pa. Super. 1984) (holding
statement that plaintiff opened company mail was capable of defamatory
meaning because it implicated criminal conduct).
The trial court determined, however, under the facts of this case, that
Appellants could not establish the requisite malice by clear and convincing
evidence. See Tucker, supra. Our review of the record compels us to
agree. While Donches in his deposition testimony provided alternate
explanations for the incidents referred to on the website and relative to
Slattery’s comment about the photo line-up, he admitted to the basic factual
truth that the incidents occurred and that allegations had been made against
him. Slattery’s Motion for Summary Judgment, 5/29/14, Exhibit H
(Deposition of Donches) at 7, 8-16. As such, we concur in the trial court’s
conclusion that Donches could not establish malice on the part of Slattery or
Citizens by clear and convincing evidence. See Trial Court Opinion,
8/22/14, at 10 (stating, “the undisputed facts establish that Donches,
without permission, took property not belonging to him and that he, in fact,
verbally and physically confronted another person in the course of a traffic
accident”); see also Tucker, supra. Where a factual basis for a statement
is present, malice cannot be shown merely because further investigation
may have led to different conclusions. “However… even were [an a]ppellee
to be deemed negligent for failure to investigate, either by obtaining
independent confirmation of his information or consulting other, possibly
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more reliable sources, that finding would be insufficient to demonstrate
actual malice.” Blackwell v. Eskin, 916 A.2d 1123, 1126, (Pa. Super.
2007). Accordingly, we conclude as a matter of law that Donches would be
unable to establish actual malice against Slattery and Citizens by clear and
convincing evidence. We therefore conclude the trial court did not err in
granting Slattery and Citizens’ motion for summary judgment relative to
Donches’ claims.
In summary, we conclude that Appellants’ claims against Appellees
Neely and Barrett are barred as being commenced after the expiration of the
applicable statute of limitations. We also conclude that Appellee Holzhafer’s
posting a link to the allegedly defamatory website with a “like” designation
on her Facebook page, is not a republication of the content of the website
sufficient to support a separate cause of action for defamation against her.
We further conclude that for the purposes of the instant litigation, both
Appellants are public figures and subject to the burdens attendant to public
figure plaintiffs in defamation cases. Additionally, we conclude that the
alleged defamatory comments relative to the mental health status of the
Appellants is not capable of defamatory meaning when viewed in the context
of the website as a whole. Finally, we conclude that the statement
attributing criminal behavior to Donches cannot be shown to have been
made with malice by clear and convincing evidence.
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Based on the foregoing, we discern no issues of material fact for a jury
to determine in this case, and we find no error by the trial court in granting
the several motions for summary judgment and dismissing Appellants’
complaint with prejudice. Accordingly, the trial court’s August 22, 2014
order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2015
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