Green v. Mizner

692 A.2d 169, 1997 Pa. Super. LEXIS 796, 1997 WL 154560
CourtSuperior Court of Pennsylvania
DecidedApril 3, 1997
DocketNo. 01077
StatusPublished
Cited by40 cases

This text of 692 A.2d 169 (Green v. Mizner) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Mizner, 692 A.2d 169, 1997 Pa. Super. LEXIS 796, 1997 WL 154560 (Pa. Ct. App. 1997).

Opinion

HUDOCK, Judge:

This is an appeal from the order granting Appellees’ preliminary objections in the nature of a demurrer and dismissing Appellant’s complaint. We reverse and remand.

The facts may be summarized as follows: Appellant was a duly elected member of the Dubois City Council. On June 27, 1994, Appellant and three other council members passed a resolution accepting a proposal from Atlas Pressed Metals (Atlas) to purchase a 4.1 acre parcel owned by the city. In accepting Atlas’s bid, council rejected a proposal by Appellee Laurel Manufacturing, Inc. (LMI). Thereafter, LMI, represented by Appellee MacDonald, Illig, Jones & Britton, filed an action in equity against the City of Dubois, Atlas, Appellant, and two other council members to enjoin the sale of the property. At the time LMI instituted the action, Appellant was a candidate for mayor of Dubois.

Just two weeks prior to the mayoral election, Appellee John F. Mizner, Esq. (Miz-ner) 1 sent a letter to the Attorney General of the Commonwealth of Pennsylvania requesting that the office investigate certain actions allegedly made by Appellant. According to the letter, Appellant, on his own and without proper authority, illegally retained the services of the law firm of Ferraraccio & Noble. The letter accused Appellant of violating criminal and civil statutes, thus questioning his personal and professional reputation. Mizner forwarded a copy of this letter to the Dubois Courier Express newspaper for publication. In addition, Appellee Dennis Heindel (Heindel), Chief Executive Officer of LMI, forwarded a copy of the letter to local radio stations. While neither the newspaper nor the radio stations published the letter verbatim, excerpts regarding the accusations made in the letter were subsequently published and quoted.

Appellant filed a defamation action against Appellees claiming Mizner’s investigative request was nothing more than a negative campaign tactic employed to defeat him in the election. Appellant avers that Mizner’s goal was to rescind the sale of the properly to Atlas, and that Mizner believed he had a better chance of obtaining this goal if Appellant was not elected. Appellant also claims that both Mizner and Heindel knew that the accusations made in the letter to the Attorney General were false because the decision [172]*172to retain Ferraraccio & Noble in 1993 was not made unilaterally by Appellant. The crux of Appellant’s complaint is that Appel-lees acted maliciously, hindering his campaign efforts with the result that he lost the election, injuring his reputation and directly causing personal anxiety and financial loss.

Appellees filed preliminary objections to Appellant’s complaint in the nature of a demurrer. After hearing arguments, the trial court sustained the objections and dismissed the complaint on two grounds. The first was that Mizner’s letter to the Attorney General was not capable of having a defamatory meaning because it consisted of opinions. The second was that Mizner’s act of mailing the letter to the Attorney General was privileged, and therefore, not actionable. Thus, the court restricted Appellant’s recourse to Mizner’s act of mailing the letter to the newspaper and Heindel’s act of mailing it to the radio stations. Deeming these actions de minimis, it concluded as a matter of law that Appellant had no cause of action.

Appellant raises the following two issues on appeal:

1. WHETHER [APPELLANT’S] COMPLAINT AS IT RELATES TO MIZ-NER’S OCTOBER 18, 1995 LETTER AND SUBSEQUENT PUBLICATIONS SUFFICIENTLY AVERS A CAUSE OF ACTION IN DEFAMATION.
2. WHETHER APPELLEES’ STATEMENTS ARE PRIVILEGED COMMUNICATIONS PROTECTED BY THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION AND/OR DEFAMATION LAWS OF PENNSYLVANIA.

Appellant’s Brief at 2.

When reviewing the grant or denial of preliminary objections in the nature of a demurrer, we must regard the allegations in the appellant’s complaint as true and accord him all the inferences reasonably deduced therefrom. Snyder v. Speciality Glass Products, Inc., 441 Pa.Super. 613, , 658 A.2d 366, 368 (1995); Al Hamilton Contracting Co. v. Cowder, 434 Pa.Super. 491, , 644 A.2d 188, 190 (1994). Preliminary objections should only be sustained where it appears with certainty that the law permits no recovery under the allegations pleaded. Al Hamilton Contracting Co., 644 A.2d at 190 (citing Gallagher v. City of Philadelphia, 142 Pa. Commw. 487, 491, 597 A.2d 747, 748 (1991)). When a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Snyder, 658 A.2d at 368.

Before reaching the merits of Appellant’s first issue, we note that the only communication we are asked to review is the letter authored by Mizner. Appellant has not challenged the written and oral reports stemming from the letter, nor has he instituted proceedings against the media based on their reports. With this in mind, we turn to Appellant’s first issue regarding the propriety of the trial court’s conclusion that the letter was not defamatory.

It is the function of the trial court to determine whether a challenged publication is capable of a defamatory meaning. Maier v. Maretti, 448 Pa.Super. 276, , 671 A.2d 701, 704 (1995); Livingston v. Murray, 417 Pa.Super 202, , 612 A.2d 443, 446, alloc. den., 533 Pa. 601, 617 A.2d 1275 (1992). When making such an assessment, the court must consider the effect of the entire article and the impression it would engender in the minds of the average reader among whom it is circulated. Livingston, 612 A.2d at 446; Maier, 671 A.2d at 705 (a critical factor to consider is the nature of the audience). A publication is defamatory if it tends to blacken a person’s reputation or expose him to public hatred, contempt, or ridicule, or injure him in his business or profession. Livingston, 612 A.2d at 447. When communications tend to lower a person in the estimation of the community, deter third persons from associating with him, or adversely affect his fitness for the proper conduct of his lawful business or profession, they are deemed defamatory. Id. Accordingly, we must consider the content of the letter authored by Mizner, the audience to which it was presented, and the effect it may have had thereon.

The letter states the following:

The purpose of this letter is to request an investigation of a matter involving John B. Green who is a member of the DuBois [173]*173City Council. Recent actions by Mr. Green as a member of City Council appear to involve conduct which is contrary to the Third Class City Code and other provision [sic] of Pennsylvania law.
Specifically, we request an investigation of Mr. Green’s retention of the law firm of Ferraraccio and Noble as Special Counsel for the City of DuBois without notifying other members of the DuBois City Council or without the passage of the necessary resolution by the DuBois City Council.

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Cite This Page — Counsel Stack

Bluebook (online)
692 A.2d 169, 1997 Pa. Super. LEXIS 796, 1997 WL 154560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-mizner-pasuperct-1997.