Olszewski v. Sinclair Broadcast Group Inc.

62 Pa. D. & C.4th 236, 2003 Pa. Dist. & Cnty. Dec. LEXIS 209
CourtPennsylvania Court of Common Pleas, Luzerne County
DecidedMay 19, 2003
Docketno. 259-C-1998
StatusPublished

This text of 62 Pa. D. & C.4th 236 (Olszewski v. Sinclair Broadcast Group Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Luzerne County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olszewski v. Sinclair Broadcast Group Inc., 62 Pa. D. & C.4th 236, 2003 Pa. Dist. & Cnty. Dec. LEXIS 209 (Pa. Super. Ct. 2003).

Opinion

FEUDALE, J.,

Before the court is defendants’ motion for summary judgment in a defamation case wherein both parties are public figures. The plaintiff, who is currently a common pleas judge, was at the time the district attorney of Luzerne County. Defendant, Frederick W. Vopper a/k/a Fred Williams, was a radio talk show host who engaged in what defendants characterized as “classic talk radio.” The defendant hosted the “Fred Williams Show” on Wilkes-Barre radio station WILK-AM. In preparation for his show the defendant allegedly read newspapers “voraciously,” then focused on the day’s hot-button issues, such as “local politicos and emerging scandals.”

The cause of action involves defendant’s “commentary” on the radio about the plaintiff’s alleged acts of omission or commission/abuse of prosecutorial discretion in the performance of his duties as district attorney. [238]*238The plaintiff set forth in his complaint 24 different statements that he alleges were defamatory. Such reference plaintiff’s “prosecution” of a sexual predator (Rygiel), DUI homicide plea bargaining, a marijuana case involving a dentist (Weltman), spousal abuse (Coslett), embezzlement (Lefchak), and allegations about the district attorney’s alleged use/misuse of county-owned cell phones.

For example, defendant “commented,” inter alia, on such things as: (i) plaintiff’s alleged refusal to prosecute a spousal abuse claim against a friend who was an assistant district attorney for 15 years; (ii) that plaintiff allegedly engaged in “corrupt deal making” with a judge so sexual predators received a more lenient sentence, including work release; (iii) that plaintiff was engaging in “guilty” plea agreements where people who committed homicide by vehicle were only receiving weekends in jail or other special consideration; (iv) that plaintiff did not properly prosecute other defendants because of their political or social connections; and (v) that the district attorney allegedly failed to pay for private use of county-owned cell phones. All of the above, according to the defendant’s “commentary,” were acts by the district attorney of corruption, misfeasance and malfeasance.

STANDARD FOR SUMMARY JUDGMENT

Pursuant to Pennsylvania Rule of Civil Procedure 1035Í2 governing motions for summary judgment:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party [239]*239may move for summary judgment in whole or in part as a matter of law.
“(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 (2002).

Under Pennsylvania law, a court may grant a motion for summary judgment only when there exists no genuine issue as to any material fact, and where the moving party is entitled to judgment as a matter of law. Strain v. Ferroni, 405 Pa. Super. 349, 354, 592 A.2d 698, 701 (1991) (citing Vargo v. Hunt, 398 Pa. Super. 600, 601, 581 A.2d 625, 626 (1990)). However, a court will not grant summary judgment unless the case is clear and free from doubt. Lower Lake Dock Company v. Messinger Bearing Corp., 395 Pa. Super. 456, 461, 577 A.2d 631, 634 (1990).

Additionally, in reviewing the facts, pleadings and documentary evidence, the trial court must accept as true all well pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. Peffer v. Penn 21 Associates, 406 Pa. Super. 460, 463, 594 A.2d 711, 712 (1991). Any doubt regarding the ex[240]*240istence of a genuine issue of material fact must be resolved in favor of the non-moving party. Denlinger Inc. v. Dendler, 415 Pa. Super. 164, 608 A.2d 1061 (1992).

DEFAMATORY MEANING, MERE OPINION, RHETORICAL HYPERBOLE

Defendants’ arguments in support of summary judgment are twofold. They allege that 14 of the statements are not capable of defamatory meaning and/or that all 24 statements are merely opinion/rhetorical hyperbole.

According to defendants, the fundamental question is “whether statements about a prosecutor’s legal exercise of discretion in entering plea bargains (Rygiel, DUI cases, Weltman) or refrained from discretionary acts (Coslett, Lefchak) are capable of defamatory meaning.”

Defendants attempt to cast the “fundamental question” by utilizing the term “legal exercise” of prosecutorial discretion. However, a review of the context and content of what counsel for the defendants describe as Mr. Williams’ “spontaneous, provocative, hyperbolic give and take” on his radio talk show, reflects a clear jury question as to whether the defendant was engaging in what we would characterize as “reflective rumination” about the district attorney’s discretionary plea bargaining as compared to his “commentary” that District Attorney Olszewski was failing to prosecute politically/socially connected individuals or friends and/or was otherwise engaging in misfeasance and malfeasance in office. See Curran v. Philadelphia Newspapers Inc., 497 Pa. 163, 439 A.2d 652 (1981) and Sprague v. Walter, 357 Pa. Super. 570, 516 A.2d 706 (1980) wherein defamation ac[241]*241tions were sustained where plaintiff was accused of failing to prosecute politically connected individuals and friends. See also, MacElree v. Philadelphia Newspapers Inc., 544 Pa. 117, 674 A.2d 1050 (1996) which held that an accusation of misconduct in office (allegedly acting in a racist manner in his official capacity as district attorney) is actionable.

In their argument, defendants seem to assert there is some sort of dichotomy if the commentary occurs in a “hard news” newspaper (in the above case articles printed in the Philadelphia Inquirer) as compared to the “commentary” assertions uttered over the radio.

Defendants’ arguments about the role/commentary of the radio talk show host seemed to suggest that Mr. Williams’ commentary does not really matter i.e., should be taken with a “grain of salt” because no one is really listening anyway or in the alternative that the content should be ameliorated in consideration of the nature of the audience hearing the remarks.”1

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

Related

Pierro v. Pierro
252 A.2d 652 (Supreme Court of Pennsylvania, 1969)
Denlinger, Inc. v. Dendler
608 A.2d 1061 (Superior Court of Pennsylvania, 1992)
Lower Lake Dock Co. v. Messinger Bearing Corp.
577 A.2d 631 (Supreme Court of Pennsylvania, 1990)
Commonwealth v. Starr
664 A.2d 1326 (Supreme Court of Pennsylvania, 1995)
MacElree v. Philadelphia Newspapers, Inc.
674 A.2d 1050 (Supreme Court of Pennsylvania, 1996)
Ranker v. Skyline Corp.
493 A.2d 706 (Supreme Court of Pennsylvania, 1985)
Livingston v. Murray
612 A.2d 443 (Superior Court of Pennsylvania, 1992)
Curran v. Philadelphia Newspapers, Inc.
439 A.2d 652 (Supreme Court of Pennsylvania, 1981)
Sprague v. Walter
516 A.2d 706 (Supreme Court of Pennsylvania, 1986)
Vargo v. Hunt
581 A.2d 625 (Supreme Court of Pennsylvania, 1990)
Courtney v. Ryan Homes, Inc.
497 A.2d 938 (Supreme Court of Pennsylvania, 1985)
Reynolds v. Thomas Jefferson University Hospital
676 A.2d 1205 (Superior Court of Pennsylvania, 1996)
Troxel v. A.I. duPont Institute
675 A.2d 314 (Superior Court of Pennsylvania, 1996)
Graham v. Today's Spirit
468 A.2d 454 (Supreme Court of Pennsylvania, 1983)
Strain v. Ferroni
592 A.2d 698 (Superior Court of Pennsylvania, 1991)
Peffer v. Penn 21 Associates
594 A.2d 711 (Superior Court of Pennsylvania, 1991)
Connor v. Allegheny General Hospital
461 A.2d 600 (Supreme Court of Pennsylvania, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
62 Pa. D. & C.4th 236, 2003 Pa. Dist. & Cnty. Dec. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olszewski-v-sinclair-broadcast-group-inc-pactcomplluzern-2003.