Porter v. Joy Realty, Inc.

872 A.2d 846, 2005 Pa. Super. 129, 2005 Pa. Super. LEXIS 856
CourtSuperior Court of Pennsylvania
DecidedApril 11, 2005
StatusPublished
Cited by17 cases

This text of 872 A.2d 846 (Porter v. Joy Realty, Inc.) 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
Porter v. Joy Realty, Inc., 872 A.2d 846, 2005 Pa. Super. 129, 2005 Pa. Super. LEXIS 856 (Pa. Ct. App. 2005).

Opinion

OPINION BY

McCAFFERY, J.:

¶ 1 In this appeal, we must determine whether the “publication” element of a defamation cause of action may be proven using only circumstantial evidence when the quantity and quality of such evidence is substantial. In this case, Appellant, Lee Porter (“Porter”), claims that the circumstantial evidence which he presented in support of his defamation claim should have been deemed to be sufficient to avoid summary judgment. After careful review of the relevant law and the evidence presented in this particular case, we conclude that circumstantial evidence may be sufficient to prove “publication” in the context of defamation and indeed, in this case, the quantity and quality of the evidence presented was substantial enough to allow Appellant’s cause of action to survive a motion for summary judgment. Accordingly, we reverse the order granting Joyce Overdorffs and Joy Realty, Ine.’s motion for summary judgment and remand for further proceedings.

¶2 The relevant facts and procedural history1 are as follows. This case stems from a home inspection performed by Porter on October 28, 1999, for Ms. Jamie Dailey (“Dailey inspection”). Prior to the Dailey inspection, Porter had performed approximately eighty-five (85) inspections, all of which resulted in the ultimate sale of the home being inspected. (Deposition Testimony (“D.T.”) of Porter, at 58; R.R. at 112). Most of these inspections were the result of referrals from Putt Real Estate (Putt) and Moreau Real Estate (Mor-eau). The Dailey inspection was the first Porter had performed on a property connected with Appellee Joy Realty. During the Dailey inspection, Porter discovered a defect in the basement of the home which he felt could potentially present a threat to the structural integrity of the residence. As a result of Porter’s finding, the potential buyer, Ms. Dailey, decided against purchasing the property. Apparently, this result angered the realtor involved, Appellee Joyce Overdorff (“Overdorff”)2 of Joy Realty, because the next day Overdorff sent a scathing fax to Porter accusing him, inter alia, of performing his job in an unprofessional manner.3 In addition, Overdorff [848]*848made very unfavorable comments about Porter directly to Ms. Dailey when she returned to Overdorffs office to retrieve her deposit money. (D.T. of Ms. Dailey, at 33-43; R. 135-139).

¶ 3 Following the Dailey inspection and its aftermath, Porter received referrals for only six additional home inspections, all of which occurred in close temporal proximity to the Dailey inspection. (D.T. of Porter at 56; R.R. at 115). Indeed, Porter never again received any referrals from his (previously) best sources, Putt and Moreau. (Id. at 47-48; R.R. at 108-109). Further, Porter’s name no longer appeared on the current list of recommended inspectors given out by agents of Kuzneski & Lock-ard Real Estate. (D.T. of Nancy Sherry, 3/24/03, at 78; R.R. at 158; 173). As a result of the sudden total dearth of new referrals, Porter’s home inspection business literally failed. As a result, he was forced to sell his home and has since only been able to obtain a series of low paying jobs. (D.T. of Porter at 6-10; R.R. at 85-89).

¶ 4 Porter filed a complaint, and a subsequent amended complaint, alleging that Overdorff, while acting as an agent of Joy Realty, had told other agents of other real estate agencies that Porter was incompetent and unprofessional. Porter further averred that Overdorffs “publication” of these false and defamatory statements directly resulted in the loss of referrals which Porter had been receiving from these agencies and which had been the lifeblood of his inspection business. (Amended Complaint at 9; R.R. at 9). After filing an answer and conducting discovery, Appellees Overdorff and Joy Realty filed a motion for summary judgment in which they claimed that Porter had failed to present sufficient evidence of “publication” as required under the defamation statute. They alleged that Porter had not adduced any direct testimony regarding any alleged defamatory statements made by Overdorff to any real estate agent. The trial court agreed that the evidence of publication was insufficient as a matter of law, and granted Appellees’ motion for summary judgment.4 Porter filed a timely appeal wherein he raises the following issue:

WHETHER [THE] TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT?

(Porter’s Brief at 6).

¶ 5 As a prefatory matter we note:
The awarding of summary judgment with respect to an issue of fact is supportable only when the non-moving party has failed to adduce evidence from which a factfinder could find in his/her favor. Stated alternatively, where there is evidence that would allow a jury to [849]*849find in the non-moving party’s favor, summary judgment should be denied and the case should proceed to trial. Moreover, the evidence must be viewed in a light most favoring the non-movant giving that party the benefit of credibility determinations and any inferences deducible from the evidence.

Griffin v. Central Sprinkler Corporation, 823 A.2d 191, 199 (Pa.Super.2003) (citations omitted). Further, as reiterated in First v. Zem Zem Temple,5 to avoid “summary judgment [the] appellant ‘need not negate all other possible causes of an occurrence, ... or prove with mathematical certainty, to the exclusion of other possibilities, that an occurrence could only have been caused in one manner consistent with ... [the appellees’] liability.’ ” Id. at 22.

¶ 6 In the case sub judice, Porter contends that the trial court incorrectly concluded that he had failed to meet his burden of proof regarding the “publication” element required for a successful defamation action.6 However, as noted by the trial court, Porter acknowledges that he has no direct evidence to present of the publication of any defamatory comments by Overdorff to any of the realtors in question due to the difficulty he experienced in penetrating the “tight knit” realtor community in his attempts to secure statements or testimony from them. (Porter’s Brief at 18). Instead, Porter argues that the quality and quantity of circumstantial evidence regarding publication which he adduced is enough at least to present a material issue of fact sufficient to survive summary judgment. (Porter’s Brief at 19-20). Specifically, Porter points to the accusatory fax that Overdorff sent to him after the Dailey inspection, as well as Overdorffs extremely negative comments to Ms. Dailey as evidence of Over-dorffs state of mind and her propensity to make defamatory comments concerning him to others. Further, Porter effectively highlights the sudden dramatic, unprecedented and otherwise inexplicable cessation of all of the referrals which he had been receiving regularly prior to the Dai-ley inspection, as uncontroverted circumstantial evidence that Overdorff had to have made defamatory statements to other realtors who had previously been providing him with referrals.

¶ 7 The overarching question presented in this case is whether, under Pennsylvania law, the publication element of a defamation cause of action may be proven using only circumstantial evidence when the quantity and quality of such evidence is substantial.

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Cite This Page — Counsel Stack

Bluebook (online)
872 A.2d 846, 2005 Pa. Super. 129, 2005 Pa. Super. LEXIS 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-joy-realty-inc-pasuperct-2005.