conditional privilege in Pennsylvania

2023Abuse of a conditional privilege occurs when the publication is actuated by malice, see Beckman v. Dunn, 419 A.2d 583, 588 (Pa. Super. 1980) or is distributed to unauthorized persons.

2013“Thus, proper occasions giving rise to a conditional privilege exist when (1) some interest of the person who publishes defamatory matter is involved; (2) some interest of the person to whom the matter is published or some other third person is involved; or (3) a recognized interest of the public is involved.” Id. (quoting Beckman, 419 A.2d at 588 ).

2024Elia v. Erie Insurance Exchange, 634 A.2d 657, 661 (Pa. Super. 1993) (footnote and citations omitted).

2013See Elia, 634 A.2d at 661 .

2022Id. at 328 (citing Binder v. Triangle Publications, Inc., 275 A.2d 53, 56 (Pa. 1971) (some citations omitted)). - 40 - J-S38014-21 In Miketic, this Court examined a series of Pennsylvania cases in which a conditional privilege was found to apply and recognized: “An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.” Rankin v. Phillippe, … 211 A.2d 56, 58 ([Pa. Super.] 1

2022Id. at 328 (citing Binder v. Triangle Publications, Inc., 275 A.2d 53 , 56 (Pa. 1971) (some citations omitted)). - 40 - J-S38014-21 In Miketic, this Court examined a series of Pennsylvania cases in which a conditional privilege was found to apply and recognized: “An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.” Rankin v. Phillippe, … 211 A.2d 56 , 58 ([Pa. Super.]

2017Baird v. Dun & Bradstreet, Inc., 446 Pa. 266 , 285 A.2d 166 (1971) (holding that a credit reporting agency has a conditional privilege to publish defamatory matter, provided the publication is made in response to a request); Chicarella v. Passant, 343 Pa.Super. 330 , 494 A.2d 1109 (1985) (finding that an investigator’s report to an insurance company constituted a conditionally privileged publication).

2017Baird v. Dun & Bradstreet, Inc., 446 Pa. 266 , 285 A.2d 166 (1971) (holding that a credit reporting agency has a conditional privilege to publish defamatory matter, provided the publication is made in response to a request); Chicarella v. Passant, 343 Pa.Super. 330 , 494 A.2d 1109 (1985) (finding that an investigator’s report to an insurance company constituted a conditionally privileged publication).

2022Id. at 328 (citing Binder v. Triangle Publications, Inc., 275 A.2d 53, 56 (Pa. 1971) (some citations omitted)). - 40 - J-S38014-21 In Miketic, this Court examined a series of Pennsylvania cases in which a conditional privilege was found to apply and recognized: “An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.” Rankin v. Phillippe, … 211 A.2d 56, 58 ([Pa. Super.] 1

2022Id. at 328 (citing Binder v. Triangle Publications, Inc., 275 A.2d 53 , 56 (Pa. 1971) (some citations omitted)). - 40 - J-S38014-21 In Miketic, this Court examined a series of Pennsylvania cases in which a conditional privilege was found to apply and recognized: “An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.” Rankin v. Phillippe, … 211 A.2d 56 , 58 ([Pa. Super.]

2024In a separate argument, Mazur contends that the mere “allegations” of theft Cuthbert relayed to her superiors “imputed that she was guilty of the crime of theft thereby making the allegations defamation per se.” (Mazur’s Br. at 16.) We disagree. 10 In Pennsylvania, a conditional privilege “applies to private communications among employers regarding discharge and discipline.” Daywalt v. Montgomery Hospital, 573 A.2d 1116, 1118 (Pa. Super. 1990) (holding that supervisor’s communication to a personnel director of her suspicions concerning the plaintiff’s alteration of her timecard was conditional

1996In Daywalt v. Montgomery Hospital, 393 Pa.Super. 118 , 573 A.2d 1116 (1990), it was specifically stated that the conditional privilege “applies to private communications among employers regarding discharge and discipline.” Id. at 122 , 573 A.2d at 1118 (emphasis added).

2017Baird v. Dun & Bradstreet, Inc., 446 Pa. 266 , 285 A.2d 166 (1971) (holding that a credit reporting agency has a conditional privilege to publish defamatory matter, provided the publication is made in response to a request); Chicarella v. Passant, 343 Pa.Super. 330 , 494 A.2d 1109 (1985) (finding that an investigator’s report to an insurance company constituted a conditionally privileged publication).

2017Baird v. Dun & Bradstreet, Inc., 446 Pa. 266 , 285 A.2d 166 (1971) (holding that a credit reporting agency has a conditional privilege to publish defamatory matter, provided the publication is made in response to a request); Chicarella v. Passant, 343 Pa.Super. 330 , 494 A.2d 1109 (1985) (finding that an investigator’s report to an insurance company constituted a conditionally privileged publication).

2007See Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495 , 421 A.2d 831 (1980) (determining that a trial court's charge to the jury requiring malice was consistent with a conditional privilege); Doman v. Rosner, 246 Pa.Super. 616 , 371 A.2d 1002 (1977) (finding that an alleged libelous statement was not capable of a defamatory meaning and, even if it was, the statement concerned a public figure and was subject to a qualified privilege requiring plaintiff to show defendant acted with malice). [6] As used in this discussion, the term "actual malice" (sometimes shortened to "malice") is a te

2007See Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495 , 421 A.2d 831 (1980) (determining that a trial court's charge to the jury requiring malice was consistent with a conditional privilege); Doman v. Rosner, 246 Pa.Super. 616 , 371 A.2d 1002 (1977) (finding that an alleged libelous statement was not capable of a defamatory meaning and, even if it was, the statement concerned a public figure and was subject to a qualified privilege requiring plaintiff to show defendant acted with malice). [6] As used in this discussion, the term "actual malice" (sometimes shortened to "malice") is a te

2005In Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163 , 484 A.2d 72 (1984), we stated: *1211 Matus [v. Triangle Publications, Inc., 445 Pa. 384 , 286 A.2d 357 (1971), cert. denied, 408 U.S. 930 , 92 S.Ct. 2494 , 33 L.Ed.2d 343 (1972) ], ... deelare[s] quite unequivocally, that under Pennsylvania law, once the issue of conditional privilege is raised by a defendant who has been sued by a private figure for defamatory communications concerning matters which are not of public concern, the burden of proof of the plaintiff in order to establish abuse of the conditional privilege is “want o

2005In Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163 , 484 A.2d 72 (1984), we stated: *1211 Matus [v. Triangle Publications, Inc., 445 Pa. 384 , 286 A.2d 357 (1971), cert. denied, 408 U.S. 930 , 92 S.Ct. 2494 , 33 L.Ed.2d 343 (1972) ], ... deelare[s] quite unequivocally, that under Pennsylvania law, once the issue of conditional privilege is raised by a defendant who has been sued by a private figure for defamatory communications concerning matters which are not of public concern, the burden of proof of the plaintiff in order to establish abuse of the conditional privilege is “want o

2004See e.g., Binder v. Triangle Publications, Inc., 442 Pa. 319 , 275 A.2d 53 (1971) (applying fair report privilege with citation to Restatement (First) Torts); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167 , 191 A.2d 662, 667 (1963) (analyzing radio station's comments about judicial proceeding under Section 611 fair report privilege); Rosenbloom v. Metromedia, 403 U.S. 29, 37-38 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971) ("Pennsylvania law recognizes... a conditional privilege for news media to report judicial, administrative, or legislative proceedings if the account is fair and accurate,

2004See e.g., Binder v. Triangle Publications, Inc., 442 Pa. 319 , 275 A.2d 53 (1971) (applying fair report privilege with citation to Restatement (First) Torts); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167 , 191 A.2d 662, 667 (1963) (analyzing radio station's comments about judicial proceeding under Section 611 fair report privilege); Rosenbloom v. Metromedia, 403 U.S. 29, 37-38 , 91 S.Ct. 1811 , 29 L.Ed.2d 296 (1971) ("Pennsylvania law recognizes... a conditional privilege for news media to report judicial, administrative, or legislative proceedings if the account is fair and accurate,

2022Id. at 328 (citing Binder v. Triangle Publications, Inc., 275 A.2d 53, 56 (Pa. 1971) (some citations omitted)). - 40 - J-S38014-21 In Miketic, this Court examined a series of Pennsylvania cases in which a conditional privilege was found to apply and recognized: “An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.” Rankin v. Phillippe, … 211 A.2d 56, 58 ([Pa. Super.] 1

2022Id. at 328 (citing Binder v. Triangle Publications, Inc., 275 A.2d 53 , 56 (Pa. 1971) (some citations omitted)). - 40 - J-S38014-21 In Miketic, this Court examined a series of Pennsylvania cases in which a conditional privilege was found to apply and recognized: “An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.” Rankin v. Phillippe, … 211 A.2d 56 , 58 ([Pa. Super.]

2007Cf. Unelko Corp. v. Rooney, 912 F.2d 1049, 1056 (9th Cir.1990) (finding that a statement concerning the effectiveness of a consumer product addressed a matter of public concern).

2005See Unelko, supra. Thus, BBB was entitled to a conditional privilege in its publication of the reports.

2007Justice Saylor, writing for the majority, in reliance on Williams v. Kroger Grocery Baking Co., 337 Pa. 17 , 10 A.2d 8 (1940) and Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 324 , 485 A.2d 374, 385 (1984), rev'd on other grounds, 475 U.S. 767 , 106 S.Ct. 1558 , 89 L.Ed.2d 783 (1986), concludes that the concept of common law conditional privilege may no longer alter the level of fault that a defamation plaintiff must prove in order to recover compensatory damages, and that ordinary negligence is sufficient for liability to attach where the plaintiff is a private figure.

2007Justice Saylor, writing for the majority, in reliance on Williams v. Kroger Grocery Baking Co., 337 Pa. 17 , 10 A.2d 8 (1940) and Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 324 , 485 A.2d 374, 385 (1984), rev'd on other grounds, 475 U.S. 767 , 106 S.Ct. 1558 , 89 L.Ed.2d 783 (1986), concludes that the concept of common law conditional privilege may no longer alter the level of fault that a defamation plaintiff must prove in order to recover compensatory damages, and that ordinary negligence is sufficient for liability to attach where the plaintiff is a private figure.

2005Finally, cases which have held that a conditional privilege can be lost by negligence are restricted to matters which are “not of a public concern.” See, American Future Systems, Inc.; Banas v. Matthews Inter *1270 national Corp., 348 Pa.Super. 464 , 502 A.2d 637 (1985); Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163 , 484 A.2d 72 (1984).

2005Finally, cases which have held that a conditional privilege can be lost by negligence are restricted to matters which are “not of a public concern.” See, American Future Systems, Inc.; Banas v. Matthews Inter *1270 national Corp., 348 Pa.Super. 464 , 502 A.2d 637 (1985); Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163 , 484 A.2d 72 (1984).

1990See Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa.1976). *604 We find that a question of privilege was raised by the facts that were pleaded, and, clearly, a proper occasion resulting in a conditional privilege was present in this case.

1980Keddie v. Pennsylvania State University, supra; MacRae v. Afro-American Co., supra. *537 Clearly, a proper occasion resulting in a conditional privilege was present in this case.

2012Communications which are made on a proper occasion, from a proper motive, in a proper manner, and which are based on reasonable cause are privileged.” Moore v. Cobb-Nettleton, 889 A.2d 1262, 1268 (Pa.Super.2005).

2010Moore v. Cobb-Nettleton, 889 A.2d 1262 (Pa.Super.2005).

2007See also MacRae v. Afro-American Co., 172 F.Supp. 184, 188 (1959) ("Proper occasions, which give rise to a conditional privilege, are classified ... as follows: (1) situations in which some interest of the person who publishes the defamatory matter is involved, (2) situations in which some interest of the person to whom the matter is published or of some other third person is involved, and (3) situations in which a recognized interest of the public is involved.”).

2007See also MacRae v. Afro-American Co., 172 F.Supp. 184, 188 (1959) ("Proper occasions, which give rise to a conditional privilege, are classified . . . as follows: (1) situations in which some interest of the person who publishes the defamatory matter is involved, (2) situations in which some interest of the person to whom the matter is published or of some other third person is involved, and (3) situations in which a recognized interest of the public is involved.").

2007See Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495 , 421 A.2d 831 (1980) (determining that a trial court's charge to the jury requiring malice was consistent with a conditional privilege); Doman v. Rosner, 246 Pa.Super. 616 , 371 A.2d 1002 (1977) (finding that an alleged libelous statement was not capable of a defamatory meaning and, even if it was, the statement concerned a public figure and was subject to a qualified privilege requiring plaintiff to show defendant acted with malice). [6] As used in this discussion, the term "actual malice" (sometimes shortened to "malice") is a te

2007See Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495 , 421 A.2d 831 (1980) (determining that a trial court's charge to the jury requiring malice was consistent with a conditional privilege); Doman v. Rosner, 246 Pa.Super. 616 , 371 A.2d 1002 (1977) (finding that an alleged libelous statement was not capable of a defamatory meaning and, even if it was, the statement concerned a public figure and was subject to a qualified privilege requiring plaintiff to show defendant acted with malice). [6] As used in this discussion, the term "actual malice" (sometimes shortened to "malice") is a te

1985The Pennsylvania Supreme Court has long held that “[w]ant of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication, will destroy the privilege.” Montgomery v. Dennison, 363 Pa. 255, 262 , 69 A.2d 520, 524 (1949), quoting Hartman v. Hyman & Lieberman, 287 Pa. 78, 83-84 , 134 A. 486, 487-488 (1926).

1985The Pennsylvania Supreme Court has long held that “[w]ant of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication, will destroy the privilege.” Montgomery v. Dennison, 363 Pa. 255, 262 , 69 A.2d 520, 524 (1949), quoting Hartman v. Hyman & Lieberman, 287 Pa. 78, 83-84 , 134 A. 486, 487-488 (1926).

1975See Dubree v. Commonwealth, 8 Pa. Com monwealth Ct. 567, 303 A. 2d 530 (1973); Ammlung v. Platt, supra. Lower level public officials and employes enjoy a conditional immunity from tort liability.

1974The liability of State employes who cannot be classified as “high public officials” was considered in DuBree v. Commonwealth, 8 Comm. Ct. 567, 574, 303 A. 2d 530 (1973) and on page 534, the opinion reads: “It would also seem reasonable to hold that a conditional immunity applied to those public officers and employeees not entitled to absolute immunity would protect the public in much the same manner, and it would seem equally reasonable that the conditions of this immunity be that the official be acting within the scope of his authority and that his negligent conduct must not be intentionally

1973Our Supreme Court has ruled squarely on this point in Matson v. Margiotti, 371 Pa. 188, 203 , 88 A. 2d 892, 900 (1952) : “One other point has given us grave concern: Was the immediate delivery to the press by the Attorney General of a copy of his letter, prior to its delivery, to the District Attorney — a regrettable practice pursued by high ranking officials whose victims first learn their fate by radio or press — incidental to and hence entitled to the same absolute privilege as the letter, or was it outside the scope of the Attorney General’s official duties or powers and therefore entitled

1973Our Supreme Court has ruled squarely on this point in Matson v. Margiotti, 371 Pa. 188, 203 , 88 A. 2d 892, 900 (1952) : “One other point has given us grave concern: Was the immediate delivery to the press by the Attorney General of a copy of his letter, prior to its delivery, to the District Attorney — a regrettable practice pursued by high ranking officials whose victims first learn their fate by radio or press — incidental to and hence entitled to the same absolute privilege as the letter, or was it outside the scope of the Attorney General’s official duties or powers and therefore entitled

2023See Forbes v. King Shooters Supply, 230 A.3d 1181, 1188 (Pa. Super. 2020). 10 Even had the trial court not erred by engaging in impermissible fact-finding, its dismissal of the Complaint with prejudice would still constitute error because the court failed to offer Appellants the opportunity to amend their Complaint.

2022Foster v. UPMC South Side Hosp., 2 A.3d 655, 665 (Pa. Super. 2010) (internal citations omitted).

2022Foster v. UPMC South Side Hosp., 2 A.3d 655 , 665 (Pa. Super. 2010) (internal citations omitted).

2022Id. (citing Menkowitz v. Peerless Publications, Inc., 211 A.3d 797 , 806 (Pa. 2019) (quoting American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 923 A.2d 389 , 400 (Pa. 2007)) (“In general, in Pennsylvania, (Footnote Continued Next Page) - 43 - J-S38014-21 however, they agreed that the majority view requires a showing of malice to defeat a conditional privilege for a Form U5 disclosure.

2022We further believe that Appellees have produced sufficient evidence to overcome the conditional privilege by a showing of negligence on the part of Appellants.25 “[T]he appropriate standard of fault depends on whether the plaintiff is a public or private figure.” American Future Systems, 923 A.2d at 400 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)).26 As Appellees are clearly private figures, the standard of negligence would most likely be applied.