David A. Klein Real Estate Ltd. v. Ridings at Brookside Condominium Ass'n

67 Pa. D. & C.4th 384, 2004 Pa. Dist. & Cnty. Dec. LEXIS 175
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJuly 12, 2004
Docketno. 2003-C-679
StatusPublished

This text of 67 Pa. D. & C.4th 384 (David A. Klein Real Estate Ltd. v. Ridings at Brookside Condominium Ass'n) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David A. Klein Real Estate Ltd. v. Ridings at Brookside Condominium Ass'n, 67 Pa. D. & C.4th 384, 2004 Pa. Dist. & Cnty. Dec. LEXIS 175 (Pa. Super. Ct. 2004).

Opinion

BLACK, J.,

The plaintiff, David A. Klein Real Estate Ltd., seeks to recover money damages from the defendant, The Ridings at Brookside Condominium Association, for breaching the management agreement between the parties and for publishing defamatory statements about the plaintiff in The Ridings Record, the Association’s newsletter. Presently before the court for disposition is the Association’s motion for partial summary judgment on Count II of the complaint alleging defamation. The Association contends that it enjoys a conditional privilege to publish statements about the plaintiff’s performance as managing agent to its members. It also argues that the newsletter contained mere expressions of opinion and that these statements were truthful and hence are not actionable.

[386]*386The evidence before the court consists of the complaint and answer; the management agreement;1 a September 26, 2002 letter terminating the plaintiff’s services;2 and the allegedly defamatory newsletter.3 Two depositions have also been submitted for our consideration from Martha A. Westbrook, president of the board of directors of the Association,4 and from David A. Klein, president of the plaintiff.5

For the reasons stated, partial summary judgment is granted in favor of the Association on the defamation claim in Count II.

FACTUAL AND PROCEDURAL BACKGROUND

David A. Klein Real Estate Ltd. is a real estate management corporation. The Association is a non-stock, non-profit corporation whose members are the owners of the 213 condominium units in The Ridings at Brookside Condominium located in the Borough of Macungie, Lehigh County, Pennsylvania. The plaintiff and the Association entered into an agreement on August 24,1999, for the plaintiff to act as the Association’s managing agent.

On Thursday, September 25,2002, the board of directors for the Association met and voted to terminate the [387]*387plaintiff’s services. The plaintiff was formally terminated on September 25, 2002, by verbal notification and by letter dated September 26, 2002, written by the Association’s attorney. The board identified 10 reasons in support of its decision. These reasons were published in the Association’s September 2002 newsletter, distributed to all condominium owners at The Ridings at Brookside Condominium. The reasons given were as follows:

“(1) Inaccurate and incomplete unit owners directory. Klein Realty has been managing agent for the past 2 1/2 years and Friends have found 85 mistakes in the directory list maintained by David Klein Realty.
“(2) Failure to make regular walk-through inspections of the property.
“(3) Failure to make timely repairs.
“(4) Failure to follow up on rule enforcement.
“(5) Failure to follow through with unit owner communications.
“(6) Failure to help with developer transition.
“(7) Failure to maintain and provide copies of leases.
“(8) Failure to record accurate minutes of meetings.
“(9) Creating a conflict of interest.
“(10) Failure to communicate.” Complaint, exhibit D. (emphasis in original)

In response to his termination, the plaintiff filed a complaint in the instant action on March 14, 2003. In Count I, the plaintiff asserts a claim for breach of the management agreement. In Count II, the plaintiff asserts a cause of action for libel, claiming that the newsletter contained [388]*388false and misleading statements that amount to libel per se.

The Association acknowledges in its answer that, after terminating the plaintiff, it published the September 2002 newsletter stating the reasons for the plaintiff’s dismissal. However, the Association denies that the statements in the newsletter were defamatory, false or malicious. The Association sets forth three defenses as the basis for its partial summary judgment motion: (1) that it had a conditional privilege to make the statements to its members; (2) that the article in the newsletter contained merely expressions of opinion; and (3) that the statements in the newsletter were truthful.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is warranted after the relevant pleadings are closed under the following circumstances: “(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.

Summary judgment is to be granted only in a case that is clear and free from doubt. Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998). However, where [389]*389the relevant facts are not in dispute, summary judgment is appropriate. Diamond Energy Inc. v. Pennsylvania Public Utility Commission, 653 A.2d 1360, 1367 (Pa. Commw. 1995).

II. The Libel Cause of Action

The Association’s first argument in support of its partial summary judgment motion rests upon the defense of conditional privilege. A publication is conditionally privileged when “circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.” Restatement (Second) of Torts §596.

The Association, as the defendant in the present action, has the burden of proving the “privileged character” of the newsletter. 42 P.S. §8343(a).

The Pennsylvania Superior Court has applied the doctrine of conditional privilege to communications regarding the termination of employment. In Sobel v. Wingard, 366 Pa. Super. 482, 531 A.2d 520 (1987), a high school principal sent a substitute teacher a letter informing her that she was being terminated due to her inability to follow administrative procedures. Copies of the letter were provided to the school’s personnel director and secondary education director. The plaintiff filed a lawsuit against the principal asserting that the letter constituted libel. The court disagreed, holding that employers have an “absolute privilege to publish defamatory matters in notices of employee terminations.” Id. at 487, 531 A.2d at 522. The court noted that the letter related to the plaintiff’s employment and was distributed only to limited personnel.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Washington v. Baxter
719 A.2d 733 (Supreme Court of Pennsylvania, 1998)
Ertel v. Patriot-News Co.
674 A.2d 1038 (Supreme Court of Pennsylvania, 1996)
Sobel v. Wingard
531 A.2d 520 (Supreme Court of Pennsylvania, 1987)
Chicarella v. Passant
494 A.2d 1109 (Supreme Court of Pennsylvania, 1985)
Diamond Energy, Inc. v. Pennsylvania Public Utility Commission
653 A.2d 1360 (Commonwealth Court of Pennsylvania, 1995)
Long Island Jewish Medical Center v. Schonholz
519 U.S. 1008 (Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
67 Pa. D. & C.4th 384, 2004 Pa. Dist. & Cnty. Dec. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-a-klein-real-estate-ltd-v-ridings-at-brookside-condominium-assn-pactcompllehigh-2004.