Sprague, R. v. Porter, J. ( 2014 )

J-A15016-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
RICHARD A. SPRAGUE, ESQUIRE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JILL PORTER, PHILADELPHIA
NEWSPAPERS, LLC, PHILLY ONLINE,
LLC, PMH ACQUISITION, LLC,
PHILADELPHIA MEDIA HOLDINGS, LLC
Appellees No. 1649 EDA 2013
Appeal from the Order May 17, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 2930 January Term, 2010
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
DISSENTING MEMORANDUM BY PANELLA, J.: FILED AUGUST 26, 2014
The decision of the trial court in this case undermines the principles of
As I will further discuss, the accusations made by the Appellees, aimed at a
lawyer appropriately advocating in his capacity as a criminal defense
attorney, would serve to repress the defense that every citizen of the United
States is entitled. This case involves issues over which every practicing
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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attorney in Pennsylvania should be concerned. As this Court stated in
Commonwealth v. Connolly, 689 A.2d 950 (Pa. Super. 1997):
Effective representation of a criminal defendant entails
more than presenting a vigorous and cogent defense.
favorable a light as possible so that the jury may view
him as a fellow citizen clothed in the protective shroud of
innocence rather than a state correctional institution
jumpsuit.
Id., at 953. I vigorously dissent from the decision of the Majority, which
affirms on the basis of a decision that misapplies
existing law.
The appropriate standard of review in addressing a motion for
summary judgment is that the court must review the record in the light most
favorable to the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the moving party.
See, e.g., ,
decision, certified record, and appellate briefs, I conclude that the trial court
failed to properly review the evidence of record in a light most favorable to
the non-moving party, Attorney Richard Sprague. I must therefore dissent.
The background and contextual facts necessary to evaluate the claims
at stake in this case are largely uncontroverted. State Senator Vincent J.
Fumo and an associated non-profit organization, Citizens Alliance
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investigation, the FBI subpoenaed records and e-mails in the possession of
Citizens in the spring of 2004. Thereafter, on the evening of February 18,
2005, the FBI executed sea
and Harrisburg.
As the investigation continued, the FBI discovered that after Citizens
Fumo had deleted e-mails and their backups. In January 2006, the U.S.
justice charges based upon the deletion of the e-mails and their backups.
Fumo retained Attorney Sprague to discuss the pending obstruction of
justice charges and possible defenses. At this meeting, Fumo blamed his
information technology personnel for being overly zealous, and opined that
he was not required to preserve the e-mails until his records, as opposed to
rague and his associates
informed Fumo that his opinion was incorrect, and that if he knew he was
under investigation, he had a duty under federal law to preserve evidence.
A few days later, Attorney Sprague met with Fumo once again to
discuss the pending charges. At this meeting, Fumo inquired whether it
would help his defense if a lawyer had advised him that he had no duty to
preserve the e-mails unless he had been personally subpoenaed. After
receiving an affirmative answer, Fumo left the office and returned a short
while later, stating that he had a lawyer who would state that he had given
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Fumo such advice at the relevant time. When Attorney Sprague asked for
the name of the attorney, Fumo replied that it was Robert Scandone,
Esquire.
Attorney Sprague requested Attorney Scandone to endorse an affidavit
to the fact that he had provided such advice to Fumo. Attorney Scandone
ultimately supplied a letter to Attorney Sprague, dated February 10, 2006,
that outlined discussions Attorney Scandone had with Fumo. In relevant
part, the letter stated:
I told him that Citizens was a separate entity and that his
attorneys were required to respond with responsive records. If,
in co
asked to cooperate, that they should do so, though they were
under no specific obligation to do so. I further explained that if
the grand jury sought records from his office, that he and/or his
staff members would be subpoenaed directly. Finally, I advised
him that because this subpoena was not directed to him or his
office, there was no reason for him or his staff to do anything
other than what was done in the normal course of District Office
business.
Letter from Robert Scandone, Esq., 2/10/06. Attorney Sprague
subsequently turned the letter over to the federal government.
On February 6, 2007, then United States Attorney Patrick Meehan
(who is now a member of Congress) held a press conference outlining his
decision to charge Fumo and three of his aides on charges of fraud, tax
offenses and obstruction of justice. At the conference, Meehan distributed a
press release describing the allegations supporting the charges.
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In response, on February 8, 2007, Attorney Sprague held a press
conference, the substance of which forms the primary point of contention
between the parties in the present appeal. Attorney Sprague opened the
following statement:
investigation, Senator Fumo went and sought advice from a
lawyer, not me, but a lawyer, whether he had to change his [e-
mail retention] policy.
And this has been told to the government.
Transcript of the Press Conference of Richard A. Sprague, 2/8/07,
transcribed from a recording on 4/22/11, at 26.
Attorney Sprague and Fumo also concluded that they desired a
meeting with the United States House of Representatives Judiciary
Subcommittee on Commercial and Administrative Law and the United States
Senate Majority Whip to discuss their belief that the Justice Department was
selectively prosecuting Democrats. The Subcommittee requested a
memorandum supporting this belief.
Subsequent to this meeting, Attorney Sprague sought to withdraw
from representing Fumo. However, prior to withdrawing, Attorney Sprague
committed to drafting the memorandum for the Subcommittee as a final
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drafted the memorandum, and submitted it to the Subcommittee on
November 21, 2007.
This memo
misusing his office for partisan political purposes. The document began with
Senator
Fumo . (Emphasis
seeks to provide the Subcommittee with the background and context which
he believes shows how the pervasive politicization of the Department of
the unfair and unprecedented manner in which
appeal, in footnote 12, the memorandum states
The last broad category of charges relates to allegations of
conspiracy to obstruct justice. In this regard, Senator Fumo is
alleged to have conspired to obstruct the investigation. In
pursuing these charges, the government intentionally ignored
documentary evidence of a long standing document retention
policy and was followed until a search warrant was served in the
advice for much of the relevant period.
Memorandum to Eric Tamarkin, Esq., from Sprague & Sprague, 11/21/2007,
affirm this most basic tru
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in law enforcement requires the elimination of partisan politics from its
decision making. Id., at 11.
advised him that the e-mails could be deleted so long as he or his office had
not been served with a subpoena. As a result of this testimony, the court
ruled that Fumo had waived the attorney-client privilege, and the federal
government subpoenaed Attorney Sprague to testify. On the stand,
Attorney Sprague testified that he had never given such advice to Fumo.
See N.T., Trial, 2/18/09, at 90. On cross-examination, Attorney Sprague
been advised by Attorney Scan Id.,
Id., at 163.
to the Subcommittee, and the assertion that the evidence concerning
uncontroverted. There was no one else to dispute it. Did I believe it? Of
Id., at 164.
On Friday, February 20, 2009, reporter Jill Porter published a column
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Porter included references to the opinion of Robert Tuttle, professor of
professional responsibility at George Washington University School of Law.
Professor Tuttle had opined that, while it may not be illegal, it is immoral for
an attorney to lie to the public. However, Professor Tuttle later wrote a
letter to the newspaper complaining that Porter had misleadingly used his
comments out of context to suggest that he was offering an opinion on
nor did [he] intend to offer, any opinion about the conduct of Mr. Sprague,
would be misled into believing that he had offered such an opinion, and that
the reader would not know that he was only opining about an instance
involving materially inconsistent statements.
Porter, 2/8/12, at 55. She further admitted that she had not attempted to
say. Id., at 61 (emphasis
supplied).
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Attorney Sprague subsequently filed a complaint against Appellees,
asserting causes of action for defamation and invasion of privacy - false
light. Discovery ensued, and ultimately, the trial court granted Appellees
motion for summary judgment on all claims.
Under the First Amendment to the United States Constitution, a
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). If it
cannot be conclusively determined that the publication was false, or even if
the factfinding process is unable to resolve conclusively whether the speech
was true or false, the plai See id.burden of proving by clear and convincing evidence that the offending
stateme
then provides a string of citations that ostensibly stand for the proposition
of those cases, only one of th
statement.
The first citation in the string, Hepps v. Philadelphia Newspapers,
Inc., 485 A.2d 374, 389 (Pa. 1984), is a case in which a private, non-public
figure sued a newspaper for defamation. On appeal, the newspaper
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conceded that state law could assign the burden of establishing truth upon a
defendant in a case concerning a non-public figure. Thus, the Court in
Hepps was concerned with the issue of whether the application of
Amendment doctrine. The Court held that presumption of falsity still applied
and reversed the case, as the trial court had held that the presumption was
no longer valid under the First Amendment.
The portion of the decision cited by the trial court in its opinion on
appeal in this case deals with the issue of punitive damages. The Hepps
Court held that the traditional presumption of falsity does not contribute to
Specifically, the Court held that the court could not presume actual malice
pursuant to the traditional presumption of falsity:
In this instance it would require presuming not only that the
content was false, but also that the defendant at the time of
publication knew of that falsity. This is the clearest type of
double presumption that we have rejected.
Id., at 389. Accordingly, the Hepps Court treated falsity as a separate
element from the state of mind of the defendant. However, the opinion does
not explicitly state a standard of proof for falsity, only for the element of
reckless disregard of the truth. See id.Hepps is
a problematic citation, as it was reversed by the Supreme Court of the
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United States in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767Hepps II
that the plaintiff bear the burden of showing falsity, as well as fault, before
Id., at 776. Once again, it is clear that the element
of falsity is separate from the fault element. If any question remained, the
Supreme Court of the United States explicitly answered it in footnote 4,
which was sur
We also have no occasion to consider the quantity of proof of
falsity that a private-figure plaintiff must present to recover
damages. Nor need we consider what standards would apply if
the plaintiff sues a nonmedia defendant.
Id., at 779 n.4. Thus, the ultimate, authoritative opinion in the Hepps
litigation explicitly disclaimed that it was setting forth a clear and convincing
standard for the burden of proof for falsity.
Ertel v. Patriot-News Co., 674 A.2d 1038 (Pa. 1996), is another
case utilized by the trial court as authority for its assertion that Attorney
Sprague bore the burden of proving falsity by clear and convincing evidence.
The relevant passage in Ertel provides:
Thus, it is the burden of a public figure plaintiff, such as Ertel, to
In addition to establishing that the statement was false, the
public figure plaintiff must also establish that the defendant
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Id., at 1041. Once again, the opinion does not explicitly assign the clear
and convincing standard to
the Ertel
Id., at
1042. Thus, there was no need to apply any stan
evidence of falsity, as there was none. And, once again, the element of
falsity is treated as separate from the element of actual malice.
Another case cited by the trial court in support of its assertion
regarding the appropriate standard for the burden of proof on the issue of
falsity is Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). The trial
court cites to footnote six of the Milkovich opinion, which I quote in full,
omitting only citations:
In Hepps, the Court reserved judgment on cases involving
nonmedia defendants and accordingly we do the same. Prior to
Hepps, of course, where public-official or public-figure plaintiffs
were involved, the New York Times rule already required a
showing of falsity before liability could result.
Id., at 20 n.6. Footnote 6 clearly does not explicitly assign a clear and
convincing standard to the burden of falsity. And again, it is clear that the
issue of falsity is treated as separate from the issue of fault or actual malice.
The one case cited by the trial court that actually supports its assertion
that a clear and convincing standard applies to the burden of proving falsity
is Tucker v. Philadelphia Daily News, 848 A.2d 113, 127-128 (Pa. 2004).
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Pennsylvania, begins its review of existing federal case law on the First
Amendment limits on state defamation claims with the following statement:
To prevail on their defamation claim, the Tuckers, as public
figures, must prove, by clear and convincing evidence that the
allegedly defamatory statements were false and that Appellant-
newspapers either knew they were false or recklessly
disregarded their falsity.
Id. Thus, for the first time, a case cited by the trial court for the proposition
that the appropriate standard is clear and convincing actually contains
language supporting that conclusion.
However, there are several readily apparent reasons to doubt that the
Supreme Court of Pennsylvania intended to impose a higher evidentiary
standard than the minimum set forth by the United States Supreme Court
for compliance with the First Amendment. First, the fact that the quoted
believe that the Supreme Court was focused on the issue of actual malice,
and not falsity. As noted above, case law has consistently treated these two
elements as distinct, and therefore discussion of the standard of proof
applicable to falsity was likely not the principle intent of the paragraph.
Second, the Supreme Court cited to Milkovich to support the
proposition. See id. As noted previously, Milkovich does not support this
conclusion, and, in fact, explicitly rejects the notion that it addressed the
issue of the standard for the burden of proving falsity. Furthermore, the
Tucker opinion pinpoint cites to 497 U.S. at 15 as its authority for the
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sentence at issue. The only mention of the clear and convincing standard on
page 15 of the U.S. Reporter is an acknowledgment that the clear and
convincing standard applies to the burden of actual malice borne by public
officials and public figures.
Finally, the Supreme Court of Pennsylvania did not engage in an
extended analysis of the application of the clear and convincing standard to
the burden of proving falsity. It is unlikely that such a drastic shift in the
law would be imposed in such a flippant fashion. As a result, I conclude that
the single sentence in Tucker highlighted by the trial court does not
represent a definitive statement of Pennsylvania law. Interestingly, this
Court has recently addressed the issue explicitly, and reached the opposite
conclusion. See Joseph v. Scranton Times L.P., 959 A.2d 322, 335 (Pa.
least, then, the question of the standard of proof applicable to Sprague in
the instant matter is an issue deserving of a more thorough analysis than a
single, conclusory sentence.
As such, I would reject joining the Majority in affirming on the opinion
of the trial court, even if I agreed with their ultimate decision to affirm.
I conclude, however, that the evidence of record, when viewed under
the appropriate standard of granting all reasonable inferences to the non-
moving party, is more than sufficient to establish, clearly and convincingly,
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article penned by Jill Porter was false in
significant aspects. Therefore, despite the incorrect standard applied by the
trial court and the majority, reversal of the trial court is appropriate under
either standard the clear and convincing standard or the preponderance of
the evidence standard.
As a prefatory matter to this discussion, it is important to understand
the role of attorneys in the United States justice system. Professional
persons who choose to become attorneys subject themselves to certain
duties in excess of the common citizen regarding the quality of justice. See
confronting every attorney in the representation of a client is the
requirement of complete loyalty and service in good faith to the best of his
Johns v. Smyth, 176 F.Supp. 949, 952 (E.D. Va. 1959). This duty
Osborn v.
Shllinger
advocacy required by the Sixth Nix v. Whiteside, 475 U.S.
157, 189 (Blackmun, J., concurring in judgment) (internal citation omitted).
The Third Circuit Court of Appeals has explicitly rejected the contention that
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a criminal defense attorney must act on his personal beliefs regarding his
While defense counsel in a criminal case assumes a dual role as
conjectures about the guilt or innocence of his client. It is the
role of the judge or jury to determine the facts, not that of the
attorney.
It is apparent that an attorney may not volunteer a mere
innocence are perjured. To do so would undermine a
cornerstone of our system of criminal justice.
U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. (Pa.), 1977).
role in the Pennsylvania Rules of Professional Conduct. Rule 3.3 prohibits a
lawyer from knowingly making a false statement of material fact or
presenting evidence of such. However, the Rule then explicitly distinguishes
situations where a lawyer merely believes that evidence is false:
may refuse to offer evidence, other than the testimony of a defendant in a
Rule 3.3(a)(3). As far back as 1884, at the least, it was recognized that a
lawyer is not to act on merely his opinion, as opposed to certain knowledge,
assistance because in his judgment the case is unjust and indefensible,
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od, Legal Ethics, (5th
Ed. 1884), at 84.
respond to the press conference held by the United States Attorney in order
to preserve a fair jury pool. Former Philadelphia District Attorney and
Common Pleas Judge Lynne Abraham testified that a criminal defense
attorney holds a press conference to counter the power of the prosecutor to
influence public perception through press conferences. See N.T., Deposition
of Lynne Abraham, Esq., 1/16/13, at 127.
public to know about this case and why he or she thought the
prosecutor brought it against him.
What the defense attorney is going to say, my client is innocent,
s home in bed, he was in Ohio,
power of the prosecutor to have all those cameras in front, make
all those statements, and this d
for him.
His lawyer is his voice, whoever the defendant is: powerful and
back against the power of the prosecution.
Id.In the present matter, the alleged defamatory statements were printed
used select quotes from a press conference Attorney Sprague held to
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counter the press conference held by Meehan to announce the charges
everybody here for taking the time to come and listen to
particular relevance to the present litigation, Attorney Sprague stated that
lawyer, not me, but a lawyer, whether he had to change his policy. And this
Id., at 26. As noted previously,
was true.
In her article, Porter wrote that Attorney Spr
assertion that Fumo had been acting on the advice of counsel with several
additional assertions:
So one of the most powerful attorneys in Philadelphia believes
that it is acceptable to deliberately mislead the public on behalf
of a client?
of his legal obligation?
such as it is.
unethical under the code of legal conduct, which specifically
prohibits misleading a court but not the public.
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But it sure seems underhanded and immoral to me.
But not every lawyer would deliberately sell
the public a bill of goods.
Lawyers are clearly prohibited from lying in court and in sworn
testimony before, say, a legislature.
professor of law at George Washington University Law School.
expert on legal ethics.
difference between deferring and deflecting a question and
this role from somebody offering a lawful service to somebody
So while Sprague may feel triumphant this week about being
either.
Porter couches many of her statements as opinions, there are several
explicit and implicit defamatory allegations of fact. At the beginning of the
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The trial court held, and Appellees argue, that Attorney Sprague has
not adduced sufficient evidence to establish that this allegation was false. A
Dictionary, (1995), at 631 a false statement
Id., at 633.
allegation to be true, the statements by Attorney Sprague she was focusing
on needed to be false.
The statements by Attorney Sprague at issue concern the same
underlying allegation by Fumo that he had received legal advice from an
attorney that he was permitted to delete e-
subpoenaed but before he was personally subpoenaed or searched. First, at
Senator Fumo went and sought advice from a lawyer, not me, but a lawyer,
pt of the Press Conference of
Richard A. Sprague, 2/8/07, transcribed 4/22/11, at 26. The second
upon (albeit erron
Memorandum to Eric Tamarkin, from Sprague & Sprague, 11/21/07, at 10
n.12.
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Appellees argue that Porter based her allegation that Attorney Sprague
was a liar only upon the memorandum to the Subcommittee, and not his
press conference. Even accepting this as true, which I believe constitutes
motion for summary judgment, I conclude that the record establishes, under
any standard of pr
memorandum to the Subcommittee was not false. When Porter was
questioned under oath, the following exchange occurred:
Q. Okay. Is it a true or false statement as far as you know
from your thorough analysis of all of the information before
writing this article that the government ignored, the government
upon, albeit erroneous, legal advice for much of the relevant
period? Is that true or false?
A.
N.T., Deposition of Jill Porter, 2/8/12, at 54-55. Thus, Porter has admitted
, as it was not false.
Granting this evidence all reasonable inferences, as we must at this stage of
article to satisfy any evidentiary burden placed upon Attorney Sprague.
difference of opinion, based on disclosed facts, about whether it is morally
acceptable for a lawyer to publicly lie on be
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Opinion, 11/1/13, at 29. Furthermore, the trial court added a footnote to
this finding, noting that Attorney Sprague, acting in his professional capacity
representing a client in court, had argued that allegations of lies constituted
nothing more than non-actionable opinion. See id., n.12. These passages
fundamentally misapprehends the nature of this case. First, the trial court
assumes that Attorney Sprague lied; I have already shown that Porter has
admitted that he did not. Second, the footnote referencing Attorney
reveals that the trial court suffers from the same fundamental
misunderstanding of the role of an attorney from which Porter suffered.
law.
The trial court found that publishing an allegation that a public figure
lied constitutes a statement of pure opinion that is non-actionable. In so
doing, however, the trial court fails to cite any binding authority.
Accordingly, I conclude that this finding by the trial court was also in error.1
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1
It is worth noting that the U.S. Supreme Court has rejected the argument
Milkovich, 497 U.S. at 18. Rather, the Court observed
that expressions of opinion often imply assertions of objective fact. See id.(Footnote Continued Next Page)
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Having established that the trial court erred in reviewing the record
pursuant to the necessary standard, I will not extend this already long
merely s
falsity. Attorney Sprague contends that he adduced sufficient evidence of
record to establish that Porter deliberately misled Professor Tuttle.
Furthermore, Attorney Sprague argues that Porter m
quotes out of context in a manner that implied Professor Tuttle was opining
explicitly disclaimed any such opinion, I conclude that Attorney Sprague has
also satisfied any evidentiary burden of establishing that this implicit
allegation was also false.
Turning to the issue of actual malice, I begin by noting that at least on
Attorney Sprague bears the burden of establishing actual malice by clear and
convincing evidence. However, I once again conclude that the trial court did
not utilize the appropriate standard to review the evidence of record at the
summary judgment stage. The Supreme Court of Pennsylvania has held
_______________________
(Footnote Continued)
those facts are either incorrect or incomplete, or if his assessment of them is
erroneous, the statement may still imply a Id., at
serve as the basis of a defamation action. See id., at 20 n.7.
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that the clear and convincing standard of proof is only relevant upon post-
trial review of the record, not at the summary judgment stage. See
Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 908 (Pa. 2007).
The only issue at the summary judgment phase is whether the plaintiff has
adduced evidence capable of establishing a dispute of material fact. See id.evidence to allow a fact-finder to conclude that the statement at issue was
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-280.
In determining whether actual malice has been established, the reviewing
court must consider the entirety of the factual record. See Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).
At her deposition, Porter testified that she did not know what part of
ittee was false, nor did
wrote the article. See N.T., Deposition of Jill Porter, 2/8/12, at 61. Porter
Id., at 62.
While the trial court correctly notes that a lack of investigation is not
see Tucker, 848 A.2d 113,
130, review of the record indicates to me that Attorney Sprague is not
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record as a whole reveals that Attorney Sprague has adduced significant
evidence to establish that Porter purposely avoided the truth of her
allegations. See Harte-Hanks, 491 U.S. at 692.
Here, as noted above, Attorney Sprague has adduced sufficient
defamatory statements. Also, as noted previously, Porter has testified that
Furthermore, the admittedly truthful literal interpretation, viewed in the
context I set forth above concerning the role of an attorney, is sufficient
evidence that Porter was alerted to the probability of the falsity of her
was arguing for Fumo. His explicitly qualified statements, taken in context,
were enough to establish that Porter knew he was not speaking for himself,
validity of her claims certainly gives rise to an inference that she was
In addition, the record reveals that Professor Tuttle was not offering
an opinion on the conduct of Attorney Sprague. See N.T., Deposition of
Robert W. Tuttle, 1/7/13, at 37. Appellees contend that the article does not
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However, it is certainly fair to infer that the quotations were a direct
comment on Attorney Sprague, as they were bracketed by paragraphs
-like focus on evidence of lack of investigation ignored the
abundant evidence in the rest of the record that could support a finding of
misapplied the law. Initially, the trial court concludes that Attorney Sprague
cannot have suffered damages since it found that the allegations in the
erroneous, and therefore this cannot be a basis for concluding that Attorney
Sprague suffered no damages.
Next, the trial court concludes that Pennsylvania law requires a
conclusion is not an accurate description of Pennsylvania law. A panel of
this Court has recently observed:
[I]n addition to evidence of reputational harm, personal
compensable for defamation. Pilchesky, 12 A.3d at 444. See
also Brinich, 757 A.2d at 397 (quoting Restatement (Second)
of Torts § 621, Comment at b.); 50 Am.Jur.2d Libel and Slander
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Joseph v. The Scranton Times, L.P., 89 A.3d 251, 265-266 (Pa. Super.
2014) (Joseph II). The panel in Joseph II reversed the trial court as the
panel concluded that the trial court had not considered evidence of non-
reputational damages in reaching its non-jury verdict. See id., at 266.
Thus, the trial court is incorrect in finding that Attorney Sprague was
required to adduce evidence of damage to his reputation.
In its other alternative theory in support of dismissal, the trial court
asserts that Attorney Sprague was required to present expert testimony
regarding his mental and emotional injuries. First, I note that the authority
relied upon by the trial court, Kazatsky v. King David Memorial Park,
Inc., 527 A.2d 988 (Pa. 1987), did not concern defamation at all; rather, it
concerned the tort of intentional infliction of severe emotional distress. As
such, it certainly should not be relied upon in summarily dismissing Attorney
prove
compensable damages. Joseph II, 89 A.3d at 266 (summarizing lay
testimony of emotional harm and concluding that trial court erred in not
considering such testimony in reaching non-jury verdict); Joseph I, 959
plaintiff's testimony concerning damage to reputation and
emotional harm was sufficient to prove compensable damages ; Wilson v.
Benjamin
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reputational injury and emotional distress sufficient to establish damages in
defamation).
invasion of privacy false light claim, I note that I have already set forth
correctly recognized that the First Amendment jurisprudence elucidated by
N.Y. Times and its progeny apply to false light claims. However, as noted
above, I conclude that the trial court erred in its application of the applicable
standards. For the same reasons as set forth above, I conclude that the trial
court erred in holding that the First Amendment bars relief on Attorney
In the alternative, the trial court held that the record cannot support a
false light claim. The trial court based this result on its conclusion that false
light claims cannot be premised upon the publication of public facts about
the plaintiff, citing Strickland v. University of Scranton, 700 A.2d 979(Pa. Super. 1997). I agree with the trial court that Strickland certainly
stands for that proposition. However, I note that it is, unfortunately, far
from clear that Strickland represents the law of Pennsylvania on this
matter. As Appellees argue, in their brief on appeal, prior decisions of the
Superior Court are binding precedent on a subsequent three-judge panel of
this Court. See Commonwealth v. Hull, 705 A.2d 911, 912 (Pa. Super.
1998). Thus, the Strickland panel had no authority to overrule Larsen v.
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Philadelphia Newspapers, Inc., 543 A.2d 1181, 1189 (Pa. Super. 1988),
blic, as well as
the trial court misapplied the law when it held that the record could not
2
support
____________________________________________
2
I further observe that the Supreme Court of Pennsylvania granted a
Pennsylvania recognize a cause of action for false light invasion of privacy by
an elected official for publications discussing her public, not private,
Krajewski v. Gusoff, 74 A.3d 119 (Pa. 2013) (Order). However,
that appeal was subsequently dismissed as moot. See Krajewski v.
Gusoff, 84 A.3d 1057 (Pa. 2014) (Order).
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