Currently before the court are the defendants’ preliminary objections seeking dismissal of a defamation action brought by the plaintiff, a public official. For the reasons set forth below, the preliminary objections are sustained and the defamation action dismissed.
BACKGROUND
On June 29, 2003, the York Sunday News published an editorial titled “State police sex scandal,” under the “Our views” section of the paper. The substance of the publication was that the Pennsylvania State Police was in the midst of a scandal involving sex discrimination and abuse claims within its ranks. The editorial stated that the Pennsylvania State Police Commissioner at the time, plaintiff Colonel Jeffrey Miller, had confirmed that between 1995 and 2001, 163 allegations of sex abuse complaints had been made against the state police, 68 of which were substantiated. An attorney representing a woman in a lawsuit against the police believed that the problem within the Pennsylvania State Police was systemic while Miller believed the problem was the result of a “few bad apples,” and thought the charges of a broader problem were “nonsense.” The editorial opined that Col. Miller’s institution of a zero-tolerance policy in substantiated cases should be vigorously pursued. Colonel Miller had admitted, however, that in the past, the punishment meted out by the state police in miscon
“The arbitration problem is no excuse for the state police brass going easy on rogues, though. They should play hardball in arbitration cases, even if they ultimately lose. Meanwhile, Miller, who used to head up the state police legislative affairs office, should start lobbying for arbitration reform.
“But he shouldn’t be handling the probe into these misconduct cases.
“Why? Because he himself was the subject of a sex discrimination case. A female employee in the legislative office recently won $277,000 in a suit disputing her firing by Miller. She claimed the office had turned into an old boys club.
“If this is true, can the president of that club really be expected to conduct a thorough ‘zero tolerance ’probe?
“Gov. Ed Rendell is right to appoint an outsider to investigate the situation.” (Complaint, exhibit A.) (emphasis added)
Plaintiff asserts that the highlighted portions of the editorial are defamatory. (Complaint ¶12.)
The lawsuit referred to in the article was one brought by Barbara Wilhelm, who had been employed in the Pennsylvania State Police Legislative Affairs Office. Wilhelm’s lawsuit named as defendants the Commonwealth of Pennsylvania, the Pennsylvania State Police and individual Pennsylvania State Police employees not including Col. Miller. (Complaint ¶15.) Col. Miller as
Plaintiff alleges that the defendants published the article with knowledge that it was false, or with reckless disregard of truth or falsity. (Complaint ¶¶31,32.) With regard to reckless disregard, plaintiff alleges that the defendants failed to verify their facts with him or with the Pennsylvania State Police prior to publication and also failed to verify the facts against the Wilhelm lawsuit, a matter of public record. (Complaint ¶¶13,16,19.) Plaintiff seeks both compensatory and punitive damages for the alleged harm he has suffered to his professional and personal reputation and for his resultant severe emotional distress.
LEGAL DISCUSSION
Defendants raise preliminary objections testing the legal sufficiency of plaintiff’s defamation action. The question presented by the demurrer (legal insufficiency) is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Tucker v.
An action for defamation under Pennsylvania statute requires as follows:
“Section 8343. Burden of proof
“(a) Burden of plaintiff. — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
“(1) The defamatory character of the communication.
“(2) Its publication by the defendant.
“(3) Its application to the plaintiff.
“(4) The understanding by the recipient of its defamatory meaning.
“(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
“(6) Special harm resulting to the plaintiff from its publication.
“(7) Abuse of a conditionally privileged occasion.” 42 Pa.C.S. §8343.
“If the statement in question bears on a matter of public concern, or the defendant is a member of the media, First Amendment concerns compel the plaintiff to prove, as an additional element, that the alleged defamatory statement is in fact false.” Lewis v. Philadelphia Newspapers Inc., 833 A.2d 185, 191 (Pa. Super. 2003). (citations omitted) Where the plaintiff is a public figure or public official, as is the plaintiff here, the plaintiff must additionally prove that the defendant, in publishing the offending statement, acted with actual malice, i.e., “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” Id. (cita
“ ‘Actual malice’ is a fault standard, predicated on the need to protect the public discourse under the First Amendment from the chill that might be fostered by less vigilant limitations on defamation actions brought by public officials.
“[T]he stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones....
“Thus, the actual malice standard, by design, assures ‘that public debate will not suffer for lack of “imaginative expression” or “rhetorical hyperbole” which has traditionally added much to the discourse of this Nation.’ ... ‘[T]he First Amendment requires that we protect some falsehood in order to protect speech that matters. ’ ” Lewis at 191. (citations omitted)
The defendants attack plaintiff’s complaint as insufficient since they claim the alleged defamatory statements are not false. Alternatively, they argue that the plaintiff has failed to sufficiently plead actual malice.
Not every error in a publication provides a basis for a defamation action. Pennsylvania law provides that it is a complete defense to a libel action that the publication is “substantially true.” 42 Pa.C.S. §8342. “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’ Put another way, the statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’ ” Mason v. New Yorker Magazine Inc., 501 U.S. 496, 517 (1991). (citations omitted)
In this case, the pleaded truth would reveal that the statements that plaintiff “was the subject of a sex discrimination suit” in which Ms. Wilhelm won $277,000 “disputing her firing by Miller,” are substantially true. The pleaded truth, discerned from the complaint, attached exhibits and the public record of the underlying suit
The essence of her federal suit was that over the course of her employment in the Legislative Affairs Office, from January 1998 through her termination on May 1, 2000, she was discriminated on the basis of her gender as reflected in her salary, the manner in which she was treated and in her opportunities for advancement; that she complained repeatedly, to no avail, to her supervisors, and elsewhere, about her disparate treatment; and that in retaliation, she was fired. Officially, Wilhelm had been told her job was terminated due to the need to reorganize the Legislative Affairs Office. Her complaint included separate counts for equal pay, sex discrimination and wrongful discharge. In addition to naming the Commonwealth of Pennsylvania and the Pennsylvania State Police as defendants, Wilhelm also named three individual defendants, then-Commissioner of the Pennsylvania State Police Paul J. Evanko, the Deputy Commissioner of
By the time of trial, Wilhelm’s equal pay and discrimination counts had been dismissed leaving her wrongful discharge claim remaining. As to that claim, Wilhelm brought it against all the named defendants, asserting they had initiated a series of investigations and administrative actions to destroy her career in retaliation for her making complaints about their discriminatory employment practices, obtaining private legal counsel and discussing her complaints with an independent entity within the state government. Id.
Plaintiff points out that the editorial’s depiction of Wilhelm’s lawsuit was false since Wilhelm never accused
“I requested that if there was any way possible for us to get clerical support in the office, that we needed that as soon as possible. And secondly my recommendation was that Ms. Wilhelm be removed from my office as soon as possible if the commissioner saw fit to do so.” (Id. at p. 34.)
According to Col. Miller, Comm. Evanko told him he understood Col. Miller and would discuss it with Lt. Col. Coury. Colonel Miller learned a short while later from Lt. Col. Coury that action had been taken upon his re
In reaching its verdict, the jury specifically found that Wilhelm “was dismissed from her job because she complained about sex discrimination.” (Id. exhibit C.) This verdict was clearly a rejection of the official reason for firing Wilhelm, and as testified to by Col. Miller, which was that the police needed to reorganize the Legislative Affairs Office. Thus, the reasons offered by Col. Miller for firing her were found by the jury to have been pretextual. The jury found Wilhelm had been fired in retaliation for raising sex discrimination complaints. Thus, the depiction in the editorial that Col. Miller had fired Wilhelm is substantially true. Colonel Miller initiated and succeeded in getting her fired by requesting that Comm. Evanko remove her from his office. Furthermore, it is accurate that Col. Miller’s actions were the subject of Wilhelm’s sex discrimination case. By the time of trial, the only issue before the jury was whether Wilhelm had been wrongfully terminated. Her termination was set in motion by Col. Miller. Thus, a fair reading of the editorial’s depiction of the Wilhelm lawsuit and Col. Miller’s relationship and involvement in it, would have the same effect on the mind of the reader as that produced from the pleaded truth as reflected in the record from the Wilhelm trial. Mason, supra. As such, because the challenged language is substantially true, plaintiff’s claims are legally insufficient to maintain a defamation action.
“[Wilhelm] claimed the office had turned into an old boys club.
“If this is true, can the president of that club really be expected to conduct a thorough ‘zero tolerance’ probe?”
Colonel Miller characterizes this portion of the article as falsely stating that he was the president of an “old boys club” within the Pennsylvania State Police, was someone who tolerates sexual misconduct, and was someone who cannot be taken at his word when he said he would institute a zero-tolerance policy. This is a mis-characterization of the plain words of the article. The language posits a question and an opinion that “if this is true,” as Wilhelm suggests, that the Pennsylvania State Police had become an “old boys club,” then Col. Miller, as the head of the police or “president of that club,” should not preside over the probe into police misconduct. The article does not state that Col. Miller is the president of an old boys club. Nor does it state that he cannot be expected to properly conduct the probe.
Under Pennsylvania law, “[o]pinion, without more, is not actionable as libel.” Beckman v. Dunn, 276 Pa. Super. 527, 535, 419 A.2d 583, 587 (1980). Similarly, under federal law, “a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). To be ac
Second, the defendants alternatively seek dismissal of Col. Miller’s action on the basis that the pleadings are legally insufficient to meet the actual malice standard required to maintain defamation against a public figure. As noted, actual malice requires that statements be published with knowledge of their falsity or with reckless disregard of whether they are false or not. See Tucker, supra, 848 A.2d at 127-28. The requirement that the plaintiff be able to show actual malice by clear and convincing evidence is initially a matter of law. Id., 848 A.2d at 130 (citing Milkovich at 17).
“This rule [requiring actual malice] is not simply premised on common-law tradition, but on the unique character of the interest protected by the actual malice standard. Our profound national commitment to the free exchange of ideas, as enshrined in the First Amendment, demands that the law of libel carve out an area of breathing space so that protected speech is not discouraged. The meaning of terms such as actual malice — and, more particularly, reckless disregard — however, is not readily
As explained above, the speech in question was either substantially true or was opinion. As such, actual malice cannot be shown since the article was not published with either knowledge of falsity or reckless disregard for its potential falsity.
Furthermore, to the extent that the editorial could be considered false, the plaintiff has failed to sufficiently allege actual malice since his allegations of reckless disregard amount to no more than negligence. Regarding the showing of actual malice through reckless disregard, our Supreme Court in Tucker stated:
“It is clear that a showing of ‘ [a] “reckless disregard” for the truth . . . requires more than a departure from reasonably prudent conduct.’ Harte-Hanks, 491 U.S. at
“The [United States] Supreme Court has emphasized that the question of whether a statement has been published with reckless disregard of falsity is not measured by whether a reasonably prudent man would have [published], or would have investigated before publishing. Rather, (t)here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Thus, while recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports it simply cannot be concluded that a defendant entertained the requisite doubt as to the veracity of the challenged publication where the publication was based on information a defendant could reasonably believe to be accurate.
“Curran, 439 A.2d at 660 (internal citations and quotations omitted). The allegations of recklessness against appellant-newspapers, at best, present a situation in which one could conclude that perhaps it would have been better if appellant-newspapers asked the Tuckers or their attorney directly whether their loss of consortium claim included a claim for damage to their sexual relationship. However, while hindsight may be twenty-twenty, this failure does not constitute actual malice. Indeed, it may not rise to the level of negligence.” Tucker, 848 A.2d at 135-36.
Colonel Miller here raises the almost identical bases as argued in Tucker for claiming reckless disregard by
Accordingly, we enter the following:
ORDER
And now, January 28, 2005, defendants’ preliminary objections to plaintiff’s complaint are sustained. Plaintiff’s complaint is hereby dismissed.
. The documents from the Wilhelm case — including the federal complaint, orders of judgment and portions of Colonel Miller’s and Wilhelm’s trial testimony — were not part of the pleadings, but were attached to defendants’ brief. Nevertheless, “a court may take judicial notice of public documents in ruling on a preliminary objection in the nature of a demurrer.” Solomon v. United States Healthcare Systems of Pennsylvania Inc., 797 A.2d 346, 352 (Pa. Super. 2002). (citation omitted)
. Among Wilhelm’s complaints were that she was not assigned an automobile, was held accountable for leave usage and attendance, was required to perform duties outside of her classification and was prohibited from attending staff meetings and selected legislative functions; that she repeatedly notified Comm. Evanko and those under his supervision, as well as a number of people under the supervision of Lt. Col. Coury of the disparate treatment; that persons within the department learned of her complaints in violation of department procedure; that Comm. Evanko and Lt. Col. Coury allowed Simmers to head an investigation of her complaints even though she was making complaints against him; that her complaints against Captain Simmers were adjudicated and held to be unfounded without notifying her or permitting her to be a witness to the proceedings, in violation of internal regulations; that she was not afforded an opportunity to apply for the director of the Legislative Affairs Office, which position was given to then-Captain Jeffrey Miller by Comm. Evanko on March 18,2000, and that Wilhelm was required to train Miller after he was chosen; that she was not given an opportunity to apply for the assistant legislative liaison position, which was given to another male employee, and that she was also required to train him.
. To the extent that plaintiff alleges actual malice on the basis that the defendants published the editorial with knowledge of its falsity, his allegations would be sufficient to withstand a demurrer, assuming the publication was indeed false. See complaint ¶23 (plaintiff alleges “defendants knew that the statements, innuendoes and implications concerning Colonel Miller in the ... editorial were totally false.”). As noted, however, the statements at issue are substantially true or are opinion.
