Barrett v. Seprosky

42 Pa. D. & C.4th 538, 1999 Pa. Dist. & Cnty. Dec. LEXIS 166
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedFebruary 18, 1999
Docketno. 95 Civil-431
StatusPublished

This text of 42 Pa. D. & C.4th 538 (Barrett v. Seprosky) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrett v. Seprosky, 42 Pa. D. & C.4th 538, 1999 Pa. Dist. & Cnty. Dec. LEXIS 166 (Pa. Super. Ct. 1999).

Opinion

CORBETT, J.,

Before the court is plaintiff’s motion for post-trial relief. This case arises out of plaintiff’s claim of defamation against defendant. A jury trial was conducted before a special trial master on June 3 and 4, 1998. The jury rendered a verdict in favor of defendant, finding that the defendant did not make a defamatory statement about the plaintiff. On June 10,1998, plaintiff filed the instant post-trial motion seeking a new trial. Oral argument was heard before this court on November 4, 1998. However, trial transcripts were not available at that time. The court ordered the plaintiff to obtain trial transcripts and permitted the parties to file supplemental briefs. Thus, the matter became ripe for disposition on January 19,1999. The parties have briefed their respective positions and the matter is now ripe for disposition.

[540]*540FACTS

On June 13, 1995, plaintiff filed a complaint claiming, inter alia, that defendant made a defamatory statement about her. Specifically, plaintiff claimed that the defendant told a close friend of his that the plaintiff had gonorrhea. Thus, plaintiff claimed that the statement constituted defamation per se because defendant’s statement imputed to plaintiff a loathsome disease, thus entitling plaintiff to damages. A jury trial was held before a special trial master on June 3 and 4,1998. The jury concluded that the defendant did not make a defamatory statement about the plaintiff and returned a verdict in favor of defendant.

Plaintiff now seeks a new trial on several grounds. First, plaintiff contends that the court erred in charging the jury that they could find defamation per se if they believed plaintiff’s witnesses. Thus, plaintiff argues that the trial court’s instruction misled the jury by implying that the jury’s finding should be based solely on plaintiff’s evidence, rather than on all the evidence. Second, plaintiff argues that the court erred in refusing to charge the jury that defendant’s testimony amounted to a binding admission because the defendant did not affirmatively deny making the statement. Thus, plaintiff contends that defendant’s failure to deny making the statement constitutes an admission by silence against his pecuniary interests. Finally, plaintiff asserts that the jury’s verdict was contrary to the law and the evidence. We will address each of plaintiff’s arguments in turn.

DISCUSSION

Rule 227.1 of the Rules of Civil Procedure governs the standard for post-trial relief following a jury trial. The rule provides:

[541]*541“(a) After trial and upon the written motion for post-trial relief filed by any party, the court may
“(1) order a new trial as to all or any of the issues; or
“(2) direct the entry of judgment in favor of any party; or
“(3) remove a nonsuit; or
“(4) affirm, modify or change the decision or decree nisi; or
“(5) enter any other appropriate order.” Pa.R.C.P. 227.1(a).

Thus, the rule authorizes the court to grant post-trial relief upon motion of the parties. See Pa.R.C.P. 227.1. (Explanatory comment — 1983.) With this standard in mind, we now turn to plaintiff’s arguments.

I. The Defendant’s Testimony Constitutes an Admission

Plaintiff argues that the special trial master erred in not charging the jury that the defendant’s testimony constituted a binding admission that defendant made the defamatory statement. Here, plaintiff argues that the defendant’s failure to deny that he made the statement at issue amounts to an admission by silence because the circumstances surrounding the statement would compel the defendant to deny making the statement. Plaintiff raised the issue before the special trial master and requested a specific charge to that effect. However, the special trial master disagreed with plaintiff that the defendant’s testimony constituted an admission. Therefore, the special trial master refused to read the requested charge that defendant’s testimony constituted an admission.

In Pennsylvania, “[a]n admission is admissible in evidence as an exception to the hearsay rule....” L. Wash[542]*542ington & Associates Inc. v. Unemployment Compensation Board of Review, 662 A.2d 1148, 1150 (Pa. Commw. 1995) (citing Levin v. Van Horn, 412 Pa. 322, 194 A.2d 419 (1963)). Moreover, “an admission can be used as substantive evidence to prove the truth of the matter asserted.” Id. at 1150 (citing Gougher v. Hansler, 388 Pa. 160, 130 A.2d 150 (1957)). Thus, “[t]he failure of aparty to reply to a statement made in his presence or hearing is significant only where the nature of the statement, and the circumstances under which it was made, are such as [to] render a reply natural and proper ....” L. Washington & Associates Inc. at 1149 (quoting Levin, 412 Pa. at 327, 194 A.2d at 421); see also, 31 C.J.S. Evidence, §295.

The Commonwealth Court more fully explained the rule in Gancom v. Unemployment Compensation Board of Review, 163 Pa. Commw. 423, 641 A.2d 652 (1994). There, the court stated:

“[I]f one is restrained by fear or doubt as to his rights, or by the belief that his interest will be best promoted by his silence, then no inference of assent can be drawn from that silence. ‘Nothing can be more dangerous than this kind of evidence; it should always be received with caution, and never ought to be, unless the evidence is of direct declarations of that kind, which naturally calls for contradiction.’” Gancom at 428, 641 A.2d at 654 (quoting Smith v. American Stores Co., 156 Pa. Super. 375, 380, 40 A.2d 696, 698 (1945)).

Plaintiff contends that the defendant’s failure, at trial, to deny making the statement is tantamount to an admission. We disagree. Our review of the record leads us to conclude that the defendant’s trial testimony did not constitute an admission. First, it is important to note that the rule as explained above is an exception to the hearsay [543]*543rule, and thus contemplates an out-of-court statement. Specifically, the rule contemplates the admissibility of a person’s silence in the face of an out-of-court statement against that person’s interest where the circumstances would ordinarily require that person to affirmatively deny the content of the statement. Thus, the rule does not apply in a situation such as this where the party charged with making the admission is available and testifies in court.

The record before us reveals no evidence of an accusation made in the defendant’s presence where the defendant failed to respond. Here, on cross-examination of the defendant, plaintiff’s counsel did not directly ask the defendant if he made the alleged defamatory statement. In fact, the entire cross-examination went as follows:

“Q. This information about Mrs.

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Bluebook (online)
42 Pa. D. & C.4th 538, 1999 Pa. Dist. & Cnty. Dec. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-seprosky-pactcompllackaw-1999.