Opinion
No. 613 WDA 1999.
Filed: January 7, 2000.
Appeal from the Order Entered March 15, 1999, in the Court of Common Pleas of Westmoreland County, Civil Division at No. 1034 OF 1998.
BEFORE: POPOVICH, ORIE MELVIN, and HESTER, JJ.
OPINION
¶ 1 Appellants appeal from the order of the Court of Common Pleas of Westmoreland County that granted appellees' preliminary objections and dismissed appellants' complaint in its entirety with prejudice. Upon review, we reverse the order of the lower court.
¶ 2 On February 20, 1998, appellants commenced an action for defamation against appellees. The twenty-one count complaint averred various libel counts based on articles published and written by appellees that concerned a workers' compensation hearing, public proceedings of the Derry Township Board of Supervisors ("the Board") and comments made by citizens while a Board meeting was in recess. At all relevant times, appellant, Supervisor DeMary, was a member of the Board. Appellees filed preliminary objections, and pursuant to the trial court's order, various counts of the original complaint were stricken, and appellants were ordered to file a more specific pleading with respect to the remaining counts.
Appellants consist of Derry Township Supervisor Louis DeMary and his wife.
Appellees consist of the Latrobe Printing and Publishing Company, Thomas Whiteman (owner, publisher, and chief executive officer of the Latrobe Bulletin), Marie McCandless (editor of the Latrobe Bulletin) and Jeannette Wolff (reporter for the Latrobe Bulletin).
¶ 3 Appellants filed an amended complaint that contained twelve counts. Appellees filed preliminary objections asserting the defense of the "fair report privilege" and claiming that the amended complaint failed to state a claim for which relief could be granted as well as failed to comply with the specificity requirement set forth in the trial court's previous order. On March 15, 1999, the trial court found that the fair report privilege applied, granted appellees' preliminary objections and dismissed the amended complaint in its entirety with prejudice.
¶ 4 Herein, appellants ask the following:
DID THE TRIAL COURT ERR IN DETERMINING THAT THE FAIR REPORT PRIVILEGE WAS APPLICABLE TO A NEWSPAPER ARTICLE DEALING WITH A WORKERS' COMPENSATION HEARING[?]
DID THE TRIAL COURT ERR IN DETERMINING THAT THE FAIR REPORT PRIVILEGE APPLIES TO NEWS COVERAGE OF COMMENTS MADE WHILE A MEETING OF THE DERRY TOWNSHIP SUPERVISORS WAS IN RECESS FOR APPROXIMATELY FORTY-FIVE MINUTES?
ASSUMING THE FAIR REPORTING PRIVILEGE IS APPLICABLE TO COVERAGE OF THE WORKERS' COMPENSATION HEARING, DID THE TRIAL COURT ERR IN DETERMINING THAT SAID PRIVILEGE WAS NOT ABUSED?
DID THE TRIAL COURT ERR IN DETERMINING THE FAIR REPORT PRIVILEGE HAD NOT BEEN ABUSED WHEN THE ARTICLE COVERING A MEETING OF THE DERRY TOWNSHIP BOARD OF SUPERVISORS CONTAINED INACCURACIES, EMBELLISHMENTS, AND EXAGGERATIONS?
ASSUMING THE FAIR REPORT PRIVILEGE IS APPLICABLE, DID THE TRIAL COURT ERR IN DETERMINING THE PRIVILEGE HAD NOT BEEN ABUSED WHEN THE ARTICLE CONTAINED UNNEC[E]SSARY EMBELLISHMENT?
Appellant's questions were renumbered for editorial convenience.
¶ 5 When reviewing a trial court's decision to grant preliminary objections in the nature of a demurrer, "all material facts as set forth in the complaint as well as all inferences reasonably deducible therefrom are accepted as true." Estate of Witthoeft v. Kiskaddon, ___ Pa. ___, 733 A.2d 623, 624 n. 1 (1999). "The core issue presented by the demurrer is whether on the facts averred, the law says with certainty that recovery is impossible." Id. "Where doubt exists, this doubt should be resolved in favor of overruling the demurrer." Id. (citations omitted). Moreover, "preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer." Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa.Super. 1994).
¶ 6 This dispute appears to stem from political disputes in Derry Township. Three members of the Board do not possess an amicable political relationship. In addition, tension between the public and the Board appears to exist. This tension was evident in several of the articles in question that described Board meetings punctuated with comments and questions from citizens followed by the summoning of police by certain members of the Board. Jeanette Wolff of the Latrobe Bulletin reported the events in question.
¶ 7 We begin our analysis by explaining the fair report privilege as it exists in the Commonwealth. The Pennsylvania Supreme Court has explained the scope and operation of Pennsylvania's fair report privilege as follows:
Upon the theory that it is in the public interest that information be made available as to what takes place in public affairs, a newspaper has the privilege to report the acts of the executive or administrative officials of government . . . However, this is a qualified or conditional privilege, rather than absolute. If the newspaper account is fair, accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches, even though the information contained therein is false or inaccurate. . . . Further, it is essential that . . . the official report, be set forth verbatim by the newspaper. A summary of substantial accuracy is all that is required. . . . However, this qualified immunity is forfeited if the publisher steps out of the scope of the privilege or abuses the "occasion." This can be done by exaggerated additions, or embellishments to the account. . . . Furthermore, this qualified privilege is lost if the defamatory material is published solely for the purpose of causing harm to the person defamed.
Sciandra v. Lynett, 409 Pa. 595, 600, 187 A.2d 586, 588-589 (1963) (citing Restatement of Torts § 611) (further citations omitted); see also Mosley v. Observer Publishing Co., 629 A.2d 965, 967 (Pa.Super. 1993) (citing Sciandra, supra, and Restatement (Second) of Torts, § 611), appeal denied, 537 Pa. 664, 644 A.2d 1201 (1994).
¶ 8 One theory relied upon to explain the fair report privilege is the agency theory. Mosley, 629 A.2d at 968. The rationale of this theory is the following:
[T]he media serves as an agent for citizens who have a right to attend public meetings and inform themselves of what transpired. Secondly, the privilege acts as a supervisory function which recognizes both the public's duty to scrutinize official conduct and the security which publicity gives to the proper administration of justice. The final basis for the fair report privilege is the public's interest in being fully informed of important issues and controversies.
Id. (citations omitted). In Mosley, supra, we applied this rationale to extend the fair report privilege to information contained in search warrants and affidavits for search warrants used in public investigations. Cf. Oweida v. Tribune-Review Publishing Co., 599 A.2d 230 (Pa.Super. 1991) (the fair report privilege extended to articles regarding a medical malpractice action since the subject matter was a civil complaint filed in a judicial proceeding involving issues of public concern); cf. Wilson v. Slatalla, 970 F. Supp. 405 (E.D. Pa. 1997) (under Pennsylvania law, the fair report privilege applied to statements in a nonfiction book since the authors relied upon material contained in a presentence report prepared by the probation department, a letter from the United States Attorney to a judge regarding sentencing and a document that had been annexed to a letter from the United States Attorney to a judge).
¶ 9 Essentially, the defense of the fair report privilege involves a three-step process. Step one requires the determination of whether the fair report privilege applies to the event in question. Steps two and three require the determination of whether the fair report privilege was abused. The privilege can be abused if the event is not reported fairly or accurately. Moreover, the privilege is abused if the material is published solely for the purpose of causing harm to the person defamed. See Mosley, supra.
¶ 10 We now address appellants' arguments that the fair report privilege did not apply to the newspaper articles covering the workers' compensation hearing and comments made by citizens, who attended a Board meeting, while the Board meeting was in recess. Initially, we note that the defendant bears the burden of proving to the court the applicability of the privilege. 42 Pa.C.S.A. § 8343 (b)(2); Sciandra, 187 A.2d at 589 (once the plaintiff establishes a prima facie case for defamation, it becomes the burden of the defendant to establish the existence of a "privileged occasion" for the defamatory publication). "It is . . . a matter for the trial court to determine whether the occasion upon which the defendant published the defamatory material gives rise to a privilege." Oweida, 599 A.2d at 235. Herein, we find that the fair report privilege applied to the workers' compensation hearing. However, based upon appellants' complaint, the fair report privilege did not apply to the comments made by citizens while the Board meeting was in recess.
¶ 11 Even assuming appellants' averments as true, we find it rather obvious that the fair report privilege applies to workers' compensation hearings. First and foremost, workers' compensation hearings are quasi-judicial proceedings that are open to the public. Just like hearings before this court and the lower courts, workers' compensation hearings develop and shape the law. The thousands of citizens affected by workers' compensation issues on a daily basis have an interest in the outcome of workers' compensation hearings. Moreover, appellants' argument that the publication in question lost its privilege due to the reporter's inclusion of a narrative with the article flies in the face of authority. See Sciandra, 187 A.2d at 588-589 (it is not essential that the official report be set forth verbatim). It was proper for the lower court to determine at this stage of the litigation that the fair report privilege applies to workers' compensation hearings.
¶ 12 Appellants do not contest that the fair report privilege applies to the Board meetings. The Board meetings are open to the public and involve the type of activity conducted by elected officials that we found the fair report privilege to apply. See Mosley, 629 A.2d at 968-969 ("[c]itizens are entitled to be informed regarding the management of tax dollars by public officials"). Appellants argue that the comments made by citizens after a Board meeting was declared in recess were not subject to the fair report privilege. Appellants claim that these comments were made while no official proceeding, official action or matter of public concern was taking place.
¶ 13 Unlike our analysis of the workers' compensation hearing of which we are well versed in its setting and procedure, we do not possess sufficient familiarity with the context in which the comments were made while the Board meeting was in recess. Due to the fact that we are dealing with a dismissal based upon a demurrer, we must make our determination based upon the facts found within appellants' complaint. See Mellon Bank, N.A., supra. Since we are bound to consider appellants' averments regarding the citizens' comments as true, we must assume that the setting in which the citizens made their comments during the Board's recess was not sufficiently public to warrant the application of the fair report privilege. See Schick v. Shirley, 552 Pa. 590, 594, 716 A.2d 1231, 1233 (1998) (we must consider all of appellant's averments as true, except to the extent that they constitute conclusions of law). Therefore, appellants averred sufficient facts to defeat the fair report privilege at this stage of the proceedings and to survive dismissal pursuant to a demurrer.
¶ 14 The lower court failed to employ the proper standard for deciding whether to sustain a demurrer. The lower court disregarded the truth of appellants' averments and concluded that the comments made by the citizens occurred during a "subsequent public meeting that was held immediately after the supervisors adjourned." Trial Court Opinion, 3/15/99, at 3. Appellants' allegation that the citizens' comments were not made at a public meeting is a cognizable claim that defeats the fair report privilege at this stage of the litigation. The trial lower court was bound to regard appellants' averments as true. Therefore, this ruling was clearly erroneous.
¶ 15 We now address appellants' contentions that even if the fair report privilege applies to the occasions in dispute, the privilege was abused by appellees. Once the existence of the conditional privilege is established, the burden shifts to the plaintiff to establish an abuse of that privilege. Oweida, 599 A.2d at 235. Whether the privilege is abused is a question for the jury. First Lehigh Bank v. Cowen, 700 A.2d 498, 503 (Pa.Super. 1997) (citation omitted). "However, as with any question of fact, it may be a question that should be answered by the judge rather then by the jury." Id. (quoting Scott v. Extracorporeal, Inc., 545 A.2d 334, 340 (Pa.Super. 1988)). "If the evidence is so clear no reasonable person would determine the issue before the court in any way but one, the court will itself determine the issue." Id.
¶ 16 This qualified privilege can be forfeited if the report is inaccurate or unfair. Mosley, 629 A.2d at 969 (citing Schiavone Construction Co. v. Time, Inc., 847 F.2d 1069, 1085 (3rd Cir. 1988)). The following is the standard for determining whether the event has been fairly and accurately reported:
The question of whether the fair report privilege has been abused has been distilled by the federal courts to a "gist" or "sting" test. A statement is substantially accurate if its "gist" or "sting" is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced. The question is whether a reasonable person, comparing the complaint and the article as a whole, could conclude that the article was a fair and accurate rendition of the complaint. If the reader could conclude that the article carries with it a materially greater "sting", then the fair report privilege has been abused and is thus forfeited. An unfair summary in the present context is one that amplifies the libelous effect that publication of the government report verbatim would have on a reader who read it carefully — that carries a "greater sting".
Mosley, 629 A.2d at 969 (citations omitted). "The truth or falsity of the underlying facts in the article do not affect the privilege so long as the story was a fair and accurate summary of the judicial proceedings." Binder v. Triangle Publications Inc., 442 Pa. 319, 326, 275 A.2d 53, 57 (1971).
¶ 17 Appellants argue that the fair report privilege was abused in relation to the article concerning the workers' compensation hearing since it was not a fair and accurate report. We list the portion of appellants' amended complaint that describes the inaccuracies:
Reporter Wolff asserts in the first paragraph of her article that the Workman's [sic] Compensation case was brought against the Township Supervisors. If she would have reviewed the Claim Petition itself (Attached hereto as Exhibit 4), she would note that the claim was brought against Derry Township as an employer.
The article also states that the former employee had filed suit "soon after" [appellant] became chairman of the board. The claim, however, which was readily available to reporter Wolff for review at the time she published her articles, indicates the claim was not filed until July, 1996, approximately six (6) months after Plaintiff was elected Chairman of the Township Supervisors.
Reporter Wolff states in her article that the workers' compensation suit contains allegations that [appellant], Louis DeMary, made the work environment hostile to the point that the employee developed stress related physical problems and was unable to work. A simple review of the Claim Petition, by Reporter Wolff, however, would put Reporter Wolff on notice that the claim was filed as a result of manipulative and repetitive movements of the employee's hand in the performance of her clerical duties over a period of time. Additionally, the Claim Petition makes no mention of a hostile work environment or stress related physical problems.
The front page article of April 25, 1997 continues to describe unlawful, wrongful, and unethical conduct on the part of [appellant] Lou DeMary, as set forth fully in Paragraph 12, however, those statements had absolutely no relevance to the Workman's [ sic] Compensation Claim brought by Patricia Thomas.
The article was not complete in that Reporter Wolff failed to obtain comment from [appellant].
The article is clearly slanted, inaccurate, unfair, embellished, suppresses facts and not complete for the reasons herein set forth.
Appellants' amended complaint, at ¶ 30.
¶ 18 As before, we are limited to the facts found within appellants' complaint and constrained to assume these averments as true, except to the extent that they constitute conclusions of law. See Mellon Bank, N.A., supra; see also Shick, supra. Appellants' allegations support a claim that appellees failed to report the workers' compensation hearing fairly and accurately. Such an averment defeats the defense of the fair report privilege at this stage of the litigation. Once again, the lower court failed to apply the standard for deciding whether to grant a demurrer. The lower court displayed its error of going beyond appellants' complaint and failing to regard appellants' averments as true when it stated the following, "[t]his [c]ourt has carefully reviewed the articles in question and has determined that [appellees] did not embellish or exaggerate any of the matters . . . raised by the testimony in the workers' compensation case." Trial Court Opinion, 3/15/99, at 4. Therefore, the lower court erred by dismissing appellants' complaint based upon the demurrer.
¶ 19 We now address appellants' contention that the fair report privilege was abused in relation to a newspaper article concerning a Board meeting since it was not fairly and accurately reported. Appellants allege the following inaccuracies:
[Appellee] Wolff was never informed by solicitor Greg Moore that [appellant] was involved in any illegality in passing a resolution.
[Appellee] Wolff was never informed by solicitor Greg Moore that [appellant's] conduct was against the mandates of the state's Ethics commission.
The insertion of these factual statements creates a published article which is unfair and inaccurate for the reasons herein set forth.
Appellants' amended complaint, at ¶ 65.
¶ 20 We must consider these averments as true since we are reviewing a case that was dismissed on preliminary objections in the nature of a demurrer. See Estate of Witthoeft, supra. Appellants allege that appellees inserted a blatant fabrication into the article that referred to comments made by Solicitor Moore. Although the fair report privilege attaches even if information contained in the article is inaccurate and false, the privilege does not apply to false information created by the publisher of the article. See Sciandra, supra. Therefore, these averments defeat the fair report privilege at this stage of the proceedings. The lower court erred by failing to regard appellants' averments as true and consulted evidence beyond the complaint when it made its ruling.
Appellants argue that the fair report privilege was abused when appellees reported that a citizen compared appellant and another Supervisor to the "Mafia" while the Board meeting was in recess. Appellants argue that this comment was not relevant and it was inserted simply to sensationalize the article. Even regarding appellants' averments as true and constraining our analysis to the complaint, we determine that this argument is meritless and overlooks the definition of the fair report privilege.
As long as the account of the proceeding is fair, accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches. See Sciandra, 187 A.2d at 588-589. Nowhere does the fair report privilege require newspapers to weigh issues of relevance or sensationalism. In fact, the privilege does not require that the newspaper account contain true and accurate information as long as it meets the standard set forth in Sciandra, supra. Therefore, the privilege would apply to material that was determined to be irrelevant and inserted for the sole purpose of sensationalizing the article.
¶ 21 Appellants also argue that appellees violated the fair report privilege by publishing the newspaper articles for the sole purpose of harming appellants. The following portions of appellants' amended complaint assert that the articles were published solely to harm appellants.
¶ 23(c). The publication, circulation and distribution of said defamatory statements were made with "actual Malice" in light of the following: [t]he printing, publication and circulation of the false, malicious, defamatory and libelous subject article was sparked by ill will, evil motive and intent to injure. That is, [appellees] are and have been on a mission to destroy [appellant's] reputation as a public official. [Appellees] are engaged in a political vendetta to have [appellant] removed as Supervisor of Derry Township causing them to make deliberate or reckless falsehoods.
¶ 31. [Appellees] printed, published, and circulated said article solely for the specific purpose of causing harm to [appellant].
¶ 34. Upon information and belief [appellees] are politically aligned with and supportive of Lon Sinemus, another Derry Township Supervisor.
¶ 35. Stemming from political motivation to ensure that [appellant] is impeached or resigns, [appellees] hope to rally political support for their ultimate goal of ousting [appellant] from office.
¶ 68. The publication of said article was intended to accomplish the improper purpose of injuring [appellant's] reputation for honesty, integrity and ability in the performance of [his] duties as a public official and to subject him to public hatred, contempt, ridicule, and distrust.
¶ 94. [Appellees] were wantonly misleading when they published said Article on or about January 6, 1997. The intent of the article was to present [appellant] in a false light in the public eye and the sole purpose of this method of reporting was to injure [appellant's] reputation for honesty, integrity and ability in the performance of his duties as a public official and to subject him to public hatred, contempt, ridicule and distrust.
Appellants' amended complaint.
¶ 22 Instead of reviewing the material allegations set forth in appellants' complaint, the lower court stated that it "will not permit [appellants] to attempt to challenge [appellees'] fair and accurate reports of the proceedings as described in the articles in question by asserting that [appellees] intended to cause harm to [appellants]." Trial Court Opinion, 3/15/99, at 6. The lower court based this decision on its opinion that the Pennsylvania Supreme Court, given the opportunity, will officially adopt the Restatement (Second) of Torts § 611. This version of the Restatement deleted clause (b) of the original Restatement of Torts § 611 that made it a condition of the fair report privilege that the publication was not to be "made solely for the purpose of causing harm." The lower court essentially decided that proof that an article was published for the sole purpose to harm the defamed individual no longer defeats the fair report privilege.
¶ 23 As evidenced by our decision in Mosley, supra, we still adhere to the original standard set forth by our Supreme Court in Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963), that allowed the fair report privilege to be defeated upon a showing of a sole purpose to harm the defamed. Although the Restatement (Second) of Torts was in existence at the time of the Mosley decision, we declined to anticipate the actions of our Supreme Court and applied the standard set forth by our Supreme Court in Sciandra, supra. See Mosley, 629 A.2d at 967.
¶ 24 Since appellees filed preliminary objections in the nature of a demurrer, the lower court was required to consider the well-pleaded, material and relevant facts as true. Mellon Bank, N.A., 650 A.2d at 899. In similar fashion, we must consider all of appellant's averments as true, except to the extent that they constitute conclusions of law. Shick, supra. Moreover, any doubt must be resolved in favor of overruling the demurrer. Estate of Witthoeft, supra. The trial court failed to apply this standard to this particular ruling as well.
¶ 25 Since the fair report privilege is lost if the defamatory material is published solely for the purpose of causing harm to the person defamed, appellants alleged sufficient facts to defeat the defense of the fair report privilege at this stage of the litigation. Not only did the lower court fail to regard appellants' allegations concerning appellees' purpose to cause harm as true, but also the lower court failed to consider this legal cause of action entirely. Based solely upon the complaint, appellants aver enough facts to prevent the dismissal of their complaint based upon a demurrer. The lower court's ruling further demonstrates the error of its decision to dismiss appellants' complaint based on preliminary objections in the nature of a demurrer.
¶ 26 In conclusion, with regard to the workers' compensation hearing, we agree with the lower court and find that the fair report privilege applied. However, we disagree with the lower court's finding concerning the fairness and accuracy in which the hearing was reported since the lower court failed to regard appellants' averments as true and constrain its analysis to the contents of appellants' complaint. Appellants alleged sufficient facts regarding the fairness and accuracy of the report in order to defeat the defense of the fair report privilege at this stage of the proceedings. Likewise, we find that the lower court erred by failing to address the question of whether appellees published the article for the sole purpose of harming appellants. Appellants' averments that appellees published the article with the sole purpose of harming them were enough to defeat the fair report privilege at this stage of the litigation and avoid dismissal based upon a demurrer.
¶ 27 Appellants acknowledge that the fair report privilege applies to Board meetings. However, appellants alleged that the fair report privilege did not apply to comments made by citizens while a particular Board meeting was in recess. The lower court failed to regard appellants' averments as true and consulted evidence outside of the complaint. We find that appellants asserted sufficient facts regarding the inapplicability of the privilege in order to defeat the defense of the fair report privilege at this stage of the litigation. Furthermore, the lower court's failure to address appellants' allegation that appellees published the article with the sole purpose to harm appellants was erroneous. These averments concerning appellees' purpose of publishing the articles would have defeated the defense of the fair report privilege at this stage of the proceedings.
¶ 28 Appellants alleged that the privilege was abused by appellees in relation to an article concerning a particular Board meeting. Appellants alleged that appellees failed to report the Board meeting fairly and accurately. Like appellants' other averments, the lower court failed to consider them as true. Quite clearly, appellants set forth averments sufficient to defeat the defense of the fair report privilege at this stage of the litigation. Moreover, the lower court's refusal to address appellants' allegations that this article was published with the sole purpose of harming appellants was erroneous. These allegations that the article was published solely to harm appellants were enough to defeat the defense of the fair report privilege at this stage of the proceedings and survive a preliminary objection in the nature of a demurrer.
Moreover, we note that since the fair report privilege is qualified rather than absolute, it was improper for appellees to raise this conditional privilege at the preliminary objection stage. "It is well established that the defense of qualified privilege must be raised by new matter and not by preliminary objection." Wecht v. PG Publishing Co., 510 A.2d 769, 771 (Pa.Super. 1986) (citations omitted). However, appellants have waived this issue by failing to raise it below.
¶ 29 For the foregoing reasons, we reverse the order of the lower court and remand for further proceedings consistent with this court's findings.
¶ 30 Reversed and remanded. Jurisdiction relinquished.