MacElree v. Philadelphia Newspapers, Inc.

resign stating that he desires Resignation Statement Pennsylvania accor- Bar of the Commonwealth from the Pa.R.D.E., isit provisions of Rule dance with Frankel Jeffrey Harris resignation ORDERED and is DISBARRED ON hereby accepted he be and it Pennsylva- Bar of Commonwealth of from the CONSENT comply shall nia; that he it is further ORDERED and shall Respondent pay Pa.R.D.E. Rule provisions to Rule costs, pursuant Board any, Disciplinary if 208(g), Pa.R.D.E. II, Appellant, MacELREE,

Honorable James P. NEWSPAPERS, PHILADELPHIA INC. Phillips, Appellees. B J. Pennsylvania.

Supreme Court of Argued 1995. Oct. April

Decided 11, 1996. Reargument June Denied Johnson, Geoffrey Philadelphia, for Richard A. R. Sprague, MacElree, Hon. II. James Clarke, Klein, Philadelphia, R. for Phila.

Samuel E. Jennifer Newspapers, Inc. ZAPPALA, NIX, C.J., FLAHERTY, CAPPY

Before and MONTEMURO, and JJ. THE COURT

OPINION OF FLAHERTY1, Justice. MacElree, II, appeals P. the Honorable James

Appellant, an order of the court which affirmed judgment County. Pleas The Philadelphia of the Court Common the preliminary sustained pleas of common Newspa- by appellees, of a demurrer filed nature reassigned case was to this writer. This Inc. pers, Phillips, and B.J. and appellant’s dismissed com plaint prejudice.2 granted We review to address whether issue of the lower courts erred determining matter law that failed to complaint state a cause of follow, For the appellees’ action. reasons we hold that preliminary objections were improperly sustained and remand this matter for further proceedings. September 28,

On two carloads of men young came from New York City campus Lincoln University (Lincoln) in County. Chester The New went Yorkers to a university dormitory. looking for girls, fight whereupon ensued between the New Lincoln Yorkers and students. The visitors were taken into Lincoln custody by campus police A group fifty officers. to one hundred Lincoln students gathered and the campus security stormed where office held, New Yorkers were and more violence erupted. 1,1991 In the November edition of the Philadelphia Inquir- er (.Inquirer) Phillips article B.J. described the incident Lincoln. article focused on the fact that both the New and Yorkers the students in the involved attack African- were American. It also discussed response of Lincoln’s admin- attempt istration its to minimize the role the students played in incident. MacElree,

Judge who was the district attorney Chester incident, County the time mentioned article. The article contained following which is the basis for the issue now before us:

Writing to a newspaper, [University local Su- President] questioned by darkasa remarks County the Chester district attorney that one of the New Yorkers had been stabbed. D.A. When James MacElree replied quotations from police reports, university’s lawyer, Glanton, the Richard him of electioneering—“the accused David Duke Chester County running by for office attacking Lincoln.” Appellees’ preliminary 2. previously granted had been dismissed; however, appellant's pleas case the court of common al- appellant complaint. lowed to file an amended MacElree, had According Judge Glanton Record 70a. remark, Duke but the nonethe- Inquirer made the David not 1993, it In April it and to Glanton. less attributed printed Philadelphia Newspapers, against MacElree filed suit Judge for defamation. Phillips Inc. and B.J. pleas granted appellees’ preliminary

The court common It appel- demurrer. held that objections in nature a the law, legal a matter of failed to meet lant’s as complaint, Ma- tort of defamation. to establish the necessary standard op. at slip Term No. October Phillips, cElree 1994). (C.P. According to County Apr. from the court, it could be inferred was whether question to depict appel- intended entirety appellees its article racially electioneering on the basis of a who was lant as racist court went on to state Id. at 6. The motivated hatred. ordinary reader defamatory “if the only could the column that it squarely a to state column as whole Phillips’ would take de- person kind of that MacElree is the position is her scribed____” In reference to the characterization Id. at 6-7. County,” the Duke court “David of Chester appellant although was not because held that this comment may be considered crude what typing politician it was opinion. Id. at 8-9. manner was nonetheless an pleas empha- the common court support holding, In of its of the entire article only portion the fact that small sized of it majority while the discussed discussed incident response incident at Lincoln and the Finally, the court noted that university officials. Id. any objective the comment had failed to cite effect case, the 10. That Id. at reputation. on defamatory in been meaning the statement could have Id. County. many, any, people if Chester the minds affirmed, court with the trial agreeing superior actionable defamation. question statement in was not Inc., Pa.Super. Philadelphia Newspaper, MacElree v. (1994). According reasonable court, unless a action had be dismissed context, statement, taken interpret reader would Id. at defamatory. at A.2d 1070. The court superior also in noted that use of the word describ- “electioneering” only ing appellant negative had a connotation examined when Id. at 602 in comparison connection with the to David Duke. 2,n. 650 A.2d at 1070 2. n. classified the reference to metaphor David Duke as a bare which could only defamatory if it supplemented had been with factual allega- Id. 602-03, tions. at 650 A.2d at 1070-71. superior analysis,

Under the court’s no reasonable reader could infer question from the that appellees office, appellant abusing accused his his oath of violating committing office and state federal and offenses as claimed Id. at appellant. 1071. did Appellees nothing at Id. Like the trial court, more than call racist. superior court cited fact mainly that the article was about Id. Lincoln while appellant barely mentioned. at court, According superior at 1070. “to the extent that the reader would be left with any impression of MacElree all, positive would be a impression when contrasted with the dissembling university officials.” Id. The superior court held that the trial court was correct in determining that comments attributed to Glanton were insufficient to sustain a Id. defamation action. 650 A.2d at 1071. Appellant argues superior court failed to properly follow the standard of review in affirming the trial court’s complaint. dismissal his According to appellant, superi- or court imposed adverse inferences on him giving rather than him the benefit all inferences which could be drawn at the preliminary objection stage proceedings. of the Appellant asserts that court avoided fair inference that racist, labeling addition to him a the article accused him of carrying out his official duties as the attorney district Additionally, racist manner. appellant claims that the superi- or court in concluding erred there are no circumstances under which appellee’s statement could be considered defama- tory. It is appellant’s position that the statement is defamato- ry because its effect is “accuse MacElree of his abusing office, oath, his violating sworn and state committing According for at Brief federal offenses.” “abusing prosecutori- him as portrays the article appellant, ingratiate college order by harassing al black office Id. County.” in Chester himself with the white voters of should that an accusation racism argues also Appellant defamation, damage to an individu- it can cause actionable is that Additionally, position it his and career. reputation al’s not will merely opinion is claim that a statement the Appellant’s liability for defamation. protect a defendant his attacked actions is that because the statement argument the official, being by as found metaphor rather than a public or false court, verified as true the accusation can be superior being defamatory. Accordingly, is of capable and therefore have objections should argues preliminary that the appellant denied. been hand, that the argue the other

Appellees, on of grant for the reviewing standard properly applied the not and that the defam- preliminary objections publication to his burden appellant that failed meet atory. They contend It position of is appellees’ a claim defamation. establishing capable is enough allege publication it is not to that Rather, to the court must be able meaning. any defamatory by complainant defamatory meaning asserted the find that the defamatory language. from the allegedly can be construed correctly held that the lower courts Appellees assert that not to actionable does amount question the statement at issue According language to the appellees, defamation. calling charge name nothing amounted to more than position appellant’s It their using hyperbole. racism is of action claim on innuendo to state a cause unsupported relies argue average for reader Appellees defamation. article to mean interpret appellees’ would not Moreover, argue, appellees claims. what of statement out of context with the remainder takes the Appel- thereof. support interpretation article order if improperly the statement were argue lees also that even Glanton, it action support would not defamation attributed 124 it causing

unless were capable reputational Appel- harm. by lees assert such harm is not indicated the record. defamation, In an action for it is duty the court’s if publication determine is capable v. bringing suit. Baker meaning party ascribed to Lafayette 291, (1987). College, 516 Pa. 532 402 libel, In order to sustain an allegation the burden is on the complaining party to establish that publication chal Thomas lenged Merton Center Rockwell defamatory. International Corp., 497 Pa. 460, 464, (1981), 215 denied, cert. U.S. S.Ct. L.Ed.2d (1982). If the court concludes that publication is capable defamatory meaning, the case should be dismissed. 464-65, Id. A.2d at 215-16. appellate

An scope court’s of review has where there challenge sustaining been a in preliminary the nature a was demurrer set forth this court Inc., Vattimo v. Lower Bucks Hospital, 241, 502 Pa. (1983). 1231 We stated that

[a]ll material facts set forth complaint as well as all reasonably inferences deducible therefrom are admitted as true for purpose [the this The question present- review.] whether, ed by averred, the demurrer is on the facts the law says certainty recovery possible. no is a Where doubt exists as a sustained, to whether demurrer should this doubt should be resolved in favor overruling it. (citations omitted). Id. at 465 A.2d 1232-33 With this mind, standard in we must determine whether the trial court properly held that the statement is complained of not capable as a matter of law. Because we hold that the statement be defamatory, could we the superior reverse court’s affirmance of the trial court’s order dismissing appel- lant’s complaint and remand this matter for further proceed- ings.

In assessing publication whether a we defamatory, must if determine the communication “tends so to harm the reputation complaining party] [the as to lower him in the

125 community persons or deter third of the to estimation Elec- associating dealing Philadelphia or with him.” Birl (1960) Co., 167 475 (quoting tric Pa. (1938)). § In reading charge Restatement of Torts Duke of and was David electioneering was this person reasonable could conclude that County, Chester a abusing power his as the an was accusation office, elected to further racism and attorney, district to a Such an accusation amounts political aspirations. own office, in his charge appellant alleges of misconduct as Co., Record F.2d Sweeney v. complaint. See (3d Cir.1942) officer with crime or (charging public se). per At this we are stage, misdemeanor in office is libel along true this with all others set accept allegation bound v. Lower Hos- appellant’s complaint. forth Vattimo Bucks Inc., Therefore, hold that the court pital, supra. superior we mistakenly characterized the attributed misquoted labeling appellant a racist. merely Glanton incorrectly implied court also that an superior remark makes small allegedly defamatory up only which of an There is portion defamatory. legal article is no basis In position, superi- for such an of its implication. support MacElree; not about or stated that article was “[t]he any the extent reader left with impression would be all, positive impression MacElree at it would be a when university dissembling contrasted with the officials.” MacEl ree, 602, 650 A.2d at 1070. The Pa.Super. court cites Merton v. Rockwell International Thomas Center of lan Corp., supra, proposition complained for the must in context the entire article in order guage be read with defamatory meaning. it is of capable determine whether However, defamatory though even specific language may be subject defamatory of is not the focus of the language Moreover, publication may sympathetic article. a be towards have a subject particular its overall while portions meaning.

126

In reading the of complained context with article, the entire in light concluded that article, the balance of the the mention of appellant flattering compared impression when given Lincoln MacElree, officials. 437 Pa.Super. at 650 A.2d at 1070. fact may that Lincoln officials have portrayed been less favorably than does not support a conclusion that the comment about was not capable being defama Co., Corabi v. Curtis tory. As we Publishing stated 441 Pa. 432, 447, (1971), 273 A.2d “the mere susceptibility publication to an which interpretation would render conclusively innocuous defeat a right [does not] of action for libel.”

Appellees cite several cases in support position their v. an accusation of racism is not actionable Sweeney libel. Co., (cause Philadelphia Record 126 F.2d at 55 action for defamation not found where “appellant charged with a who, bigoted person by prejudice actuated of an unpleasant kind, and undesirable opposed foreignborn judicial Jew for a Newsweek, Inc., Raible v. appointment”); 341 F.Supp. (W.D.Pa.1972) (“[T]o call a person bigot or other appro- priate descriptive racial, name of his political, religious, eco- nomic, or sociological philosophies gives no rise to an action McAndrew v. libel.”); for Republican Publishing Scranton Co., (1950) 504, 511, (“It 364 Pa. 72 A.2d would very annoying doubtless be for a man to charged kind, bigotry any yet it has been held that for a man to be Rybas charged defamation.”); with such bigotry is not (1983) (“A Wapner, 50, 55, Pa.Super. publication charges which that an individual is actuated unpleasant or undesirable prejudice may offend his sensitivi- libelous.”). ties, but is not thereby The statement are presented we with here could be inter- preted as more than a simple accusation of racism. As stated before, the statement could be construed to mean appel- lant was acting a racist manner his official capacity as district attorney. Because there was doubt as to the defama- appellees’ of demur- complained language, nature tory overruled. rer should have been been not to be

Although accusations racism have held defamation, such accu- every cannot be said actionable meaning not a matter of capable defamatory is as sation v. Rock- Thomas Merton Center in As this court stated law. Corp., well International 442 A.2d at Pa. (citations omitted), if it defamatory “[a] communication him reputation tends so to harm the of another to lower persons to deter third community the estimation of the or dealing him.” A of racism associating charge or with charged. could on the individual so clearly have such effect exists, fact up jury such a it is possibility Where every to its This is not to say finder determine existence. it remains defamatory. Accordingly, accusation racism is challenged function of whether “the the court determine Id. Where meaning.” is capable of a publication established, possibility there is no that harm can be and the defamatory, trial judge communication is therefore not dismissed. may properly order case be this case rise to a complained Because statements than a accusation of racism and level more harmless could caused harm to the trial court clearly appellant, have in sustaining appellees’ erred demurrer.

Hence, trial affirming the order of the reversed, the case trial court court is is remanded opinion. for consistent this proceedings C.J., NIX, case. participate in the decision of this did CASTILLE, J., in the or participate did not consideration decision of this case.

MONTEMURO, J., did not sitting by designation, who was the decision this case. participate J., CAPPY, concurring opinion. files CAPPY, Justice, concurring.

I concur but I majority’s holding separately write emphasize majority’s holding today that does not change the law of defamation regard allegation with of racism. allegation The rule continues to be that a mere of racism is, law, without more as a matter of not actionable in defama- Co., McAndrew v. Republican Publishing See Scranton tion. 504, 511, (1950); Rybas Wapner, v. 780, 364 Pa. 72 A.2d 783 (1983). 50, 55, See also Pa.Super. 311 457 A.2d 110 Co., (3d Sweeney v. Record 126 F.2d 53 Cir. Newsweek, Inc., Raible v. 1942); 341 807 F.Supp. Tillman, (W.D.Pa.1972) (7th and Stevens v. 855 F.2d 394 Cir.1988) law). Illinois (construing To the extent that majority’s appearing page Opinion dicta on 126-27 of the otherwise, I suggests expressly myself disassociate therefrom. Furthermore, dicta, I note that as is nonprecedential. Bender, Hunsberger In re (1962); Pa. 4 180 A.2d Cassell, (1939) Estate 334 Pa.

Today, majority merely decides that this Court can not was, published by conclude the statement as a Appellees law, incapable matter of of a In other meaning. words, we cannot conclude as a matter of law that the state- ment published by Appellees allega- amounted to a mere tion of racism which would be actionable. This decision is consonant with the juncture standard review this Appellees case. made preliminary the nature granted. demurrer which the trial court The standard of .preliminary objections review for in the nature of a demurrer limited; question presented by “the the demurrer is wheth- er, averred, says on the facts the law with that no certainty recovery is possible. Where a doubt exists as to whether a sustained, demurrer should be this doubt should be resolved in Franchise v. Atlantic Rich- favor of it.” overruling AM/PM (1990) (citations field, 526 Pa. 110, 121, omitted). Because, at stage proceedings, this of the it cannot be said with certainty published by statement Appellees racism, amounted to a mere allegation prelim- inary objections the nature of a demurrer should have been state Indeed, as to the because there is doubt overruled. minds reasonable to whether precise import, ment’s charge to constitute understand the statement could i.e., office, Attorney the District public abuse of in order to favor the voters curry Lincoln persecuting so to advance supposed prejudice to the voters’ playing denied. career, have been the demurrer should political own majority.1 I with the Accordingly, concur 674 A.2d 1056 ADVOCATE, Appellee, The PUBLIC Philadelphia and Gas PHILADELPHIA GAS COMMISSION Management Facilities Works and

Corporation, Appellants. Pennsylvania. Supreme Court of Argued 1995. Oct. April 22, 1996.

Decided holding today does not Additionally, note that the Court’s I would concluding ultimately that as a matter preclude the factfinder racism, fact, allegation and to mere the statement amounted recovery. Again, is so Appellant this would not entitled to therefore of a reviewing preliminary are in the nature because we law, such, addressing question not of fact. we are demurrer

Case Details

Case Name: MacElree v. Philadelphia Newspapers, Inc.

Court Name: Supreme Court of Pennsylvania

Date Published: Apr 19, 1996

Citation: 674 A.2d 1050

Court Abbreviation: Pa.