Bernard Ellsworth & Associates Inc. v. Empire Radio Partners Ltd.

7 Pa. D. & C.4th 614, 1990 Pa. Dist. & Cnty. Dec. LEXIS 236
CourtPennsylvania Court of Common Pleas, Blair County
DecidedMarch 26, 1990
Docketno. 1435 C.P. 1989
StatusPublished

This text of 7 Pa. D. & C.4th 614 (Bernard Ellsworth & Associates Inc. v. Empire Radio Partners Ltd.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Blair County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernard Ellsworth & Associates Inc. v. Empire Radio Partners Ltd., 7 Pa. D. & C.4th 614, 1990 Pa. Dist. & Cnty. Dec. LEXIS 236 (Pa. Super. Ct. 1990).

Opinion

KOPRIVA, J.,

Plaintiffs commenced this action by filing a complaint on August 14, 1989. The complaint sets forth 10 counts in which plaintiffs allege that individual defendant, Robert J. Puffer, defamed them and tortiously placed them in a false light by making the following statement during his morning radio show on January 16, 1989: “I may be setting myself up for a lawsuit. Ellsworth’s is closed, filing for bankruptcy and it is just as well, their service is slow, their food is cold and desserts are $4.50.”

Defendants filed preliminary objections on September 21, 1989. Plaintiffs then filed an amended complaint pursuant to Pa.R.C.P. 1028(c) which corrected the errors in the original complaint that defendants had objected to in counts VI, VII, IX and X of their preliminary objections. Therefore, the [615]*615issues now before this court are contained within counts I through V and count VII of defendants’ preliminary objections. The issues raised are as follows:

(I) Does an officer of a corporation have a right to recover damages for an alleged defamation published of the corporation?

(II) Can an officer of a corporation maintain a cause of action under a theory of invasion of privacy for being placed in a false light where the allegedly tortious statements refer specifically to the corporation?

(III) Are the individual plaintiffs, Bernard E. Kitt Jr. and Mary J.C. Kitt, entitled to recover punitive damages?

(IV) Should that portion of paragraph 40 of plaintiffs’ complaint be stricken as being scandalous or impertinent matter under Pa.R.C.P. 1017(b)(2)?

DEMURRER

Does an Officer of a Corporation Have a Right to Recover Damages for an Alleged Defamation Published of the Corporation?

Defendants are asking that counts II and III of plaintiffs’ complaint be dismissed. In ruling on the demurrer, we accept as true all well-pled material facts in the complaint as well as all inferences reasonably deducible therefrom. Vitteck v. Washington Broadcasting Co. Inc., 256 Pa. Super. 427, 389 A.2d 1197 (1978). A complaint alleging defamation should not be dismissed upon a preliminary objection in the nature of a demurrer unless the court is certain that the communication is incapable of bearing a defamatory meaning. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 489 A.2d 1364 (1985). A statement is defamatory if it tends to harm an individual’s repu[616]*616tation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him. Zartman v. Lehigh County Humane Society, 333 Pa. Super. 245, 482 A.2d 266 (1984).

Defendants contend that as a matter of law, a corporate officer has no cause of action for defamation when the allegedly defamatory statement names only the corporation. In support of their position, defendants cite Volomino v. Messenger Publishing Company, 410 Pa. 611, 189 A.2d 873 (1963).

Volomino does not hold that a corporate officer is incapable of being defamed by words criticizing the corporation. It merely states, by way of a footnote, that “words criticizing a corporation without more, are not defamatory of a person connected with it.” Volomino, supra, (emphasis supplied)

The critical phrase “without more” is explained in the early Superior Court case of Binder v. Daily News Publishing Company, 33 Pa. Super. 411 (1907), where the court states at page 425 as follows:

“Sometimes an attack upon a thing may be defamatory of the owner of that thing, or of others immediately connected with it. But this is only where an attack upon the thing is also an indirect attack upon the individual. If the words do not touch the personal character or professional conduct of the individual, they are not defamatory of him, and no action lies unless the words fall within the rules relating to slander of title.”

Therefore, even though an allegation refers only to a corporate entity, if the allegation reflects negatively on the character or conduct of an individual closely connected with the corporation, such individual has a cause of action for defamation. Although Pennsylvania case law is somewhat sparse, we find the law to be clear that there can be [617]*617circumstances that justify permitting a corporate officer to maintain a defamation action even though the allegedly defamatory words were directed at the corporation. We have reviewed the cases from other jurisdictions cited by defendants, and are not persuaded that they contradict what we perceive to be the law of this state at this time, without comment as to the wisdom or reasonableness of such legal thinking.

Therefore, when we accept as true the facts pled in counts I and II of plaintiffs’ complaint we find that the statements made by defendant Puffer concerning Ellsworth’s are capable of a defamatory meaning regarding the individual plaintiffs, Bernard E. and Mary J.C. Kitt. Plaintiffs have a heavy burden of proof in a defamation action as set forth in 42 Pa.C.S. §8343. It may come before a jury to decide whether the statements made by Mr. Puffer were so understood by WFBG’s listening audience to refer to Mr. and Mrs. Kitt. At this procedural stage, any doubt that the law will not permit recovery must be resolved against the demurrer, so we will allow the individual plaintiffs to proceed with this action. To rule otherwise would be premature, depriving plaintiffs of their opportunity to create a factual scenario which could sustain their heavy burden of proof.

Can an Officer of a Corporation Maintain a Cause of Action Under a Theory of Invasion of Privacy for Being Placed in a Light Where the Allegedly Tortious Statements Refer Specifically to the Corporation?

Defendants are hereby requesting that counts VII and VIII of plaintiffs’ complaint be dismissed. Defendants claim that the individual plaintiffs have no cause of action since the publicity referred only to [618]*618the corporation. Basically, defendants are advancing the same reasoning argued in the preceding issue.

Restatement (Second) of Torts §652E defines false-light invasion of privacy as follows:

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

“(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

“(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

Unlike actions for defamation, it is not the tendency to lower the person in the esteem of others, but the tendency to be highly offensive, that forms the gravamen of the false-light tort. Southern Air Transport v. American Broadcast Company, 670 F.Supp. 38, 42 (1987).

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Related

Walder v. Lobel
488 A.2d 622 (Supreme Court of Pennsylvania, 1985)
Volomino v. Messenger Publishing Co.
189 A.2d 873 (Supreme Court of Pennsylvania, 1963)
Martin v. Municipal Publications
510 F. Supp. 255 (E.D. Pennsylvania, 1981)
Gordon v. Lancaster Osteopathic Hospital Ass'n
489 A.2d 1364 (Supreme Court of Pennsylvania, 1985)
Vitteck v. Washington Broadcasting Co.
389 A.2d 1197 (Superior Court of Pennsylvania, 1978)
Zartman v. Lehigh County Humane Society
482 A.2d 266 (Supreme Court of Pennsylvania, 1984)
Binder v. Pottstown Daily News Publishing Co.
33 Pa. Super. 411 (Superior Court of Pennsylvania, 1907)

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Bluebook (online)
7 Pa. D. & C.4th 614, 1990 Pa. Dist. & Cnty. Dec. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-ellsworth-associates-inc-v-empire-radio-partners-ltd-pactcomplblair-1990.