defamation claim in Pennsylvania

2024“A statement of fact can be verified as true or false, whereas an expression of opinion only conveys a subjective belief of the speaker.” Meyers, 221 A.3d at 670 (citing Restatement (Second) of Torts § 566, Comment (a) and noting that “Pennsylvania has adopted the Second Restatement’s approach to defamation”). ____________________________________________ 5 The elements of a defamation claim in Pennsylvania are set forth in the Uniform Single Publication Act, which requires that a plaintiff prove: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its a

2024“A statement of fact can be verified as true or false, whereas an expression of opinion only conveys a subjective belief of the speaker.” Meyers, 221 A.3d at 670 (citing Restatement (Second) of Torts § 566, Comment (a) and noting that “Pennsylvania has adopted the Second Restatement’s approach to defamation”). ____________________________________________ 5 The elements of a defamation claim in Pennsylvania are set forth in the Uniform Single Publication Act, which requires that a plaintiff prove: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its a

2025“To prevail on their defamation claim, [plaintiffs], as public figures, must prove, by clear and convincing evidence that the allegedly defamatory statements were false and that [defendant]- newspapers either knew they were false or recklessly disregarded their falsity.” Tucker v. Philadelphia Daily News, 577 Pa. 598, 621 , 848 A.2d 113, 127-28 (2004).

2005“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

2024“A statement of fact can be verified as true or false, whereas an expression of opinion only conveys a subjective belief of the speaker.” Meyers, 221 A.3d at 670 (citing Restatement (Second) of Torts § 566, Comment (a) and noting that “Pennsylvania has adopted the Second Restatement’s approach to defamation”). ____________________________________________ 5 The elements of a defamation claim in Pennsylvania are set forth in the Uniform Single Publication Act, which requires that a plaintiff prove: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its a

2024“A statement of fact can be verified as true or false, whereas an expression of opinion only conveys a subjective belief of the speaker.” Meyers, 221 A.3d at 670 (citing Restatement (Second) of Torts § 566, Comment (a) and noting that “Pennsylvania has adopted the Second Restatement’s approach to defamation”). ____________________________________________ 5 The elements of a defamation claim in Pennsylvania are set forth in the Uniform Single Publication Act, which requires that a plaintiff prove: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its a

2019This Court stated that the four requirements “are necessary to ensure the proper balance between a speaker’s right to remain anonymous and a defamation plaintiff’s right to seek redress.” Id. at 442 . ____________________________________________ 8 We specifically previously held “the Wilson Letters are anonymous political speech under the First Amendment subject to Pilchesky’s four-part test for disclosure of anonymous or pseudonymous speakers.” Kuwait & Gulf Link Transport Co., 92 A.3d at 50 . - 21 - J-A16037-19 Kuwait & Gulf Link Transport Co., 92 A.3d at 49 (emphasis omitted).

2019This Court stated that the four requirements “are necessary to ensure the proper balance between a speaker’s right to remain anonymous and a defamation plaintiff’s right to seek redress.” Id. at 442 . ____________________________________________ 8 We specifically previously held “the Wilson Letters are anonymous political speech under the First Amendment subject to Pilchesky’s four-part test for disclosure of anonymous or pseudonymous speakers.” Kuwait & Gulf Link Transport Co., 92 A.3d at 50 . - 21 - J-A16037-19 Kuwait & Gulf Link Transport Co., 92 A.3d at 49 (emphasis omitted).

2015Id. at 1262-1263 (quoting Melvin v. Doe, 836 A.2d 42, 50 (Pa. 2003)).

2011Melvin II, 836 A.2d at 44-45 (vacating an order of the Superior Court, which had quashed an appeal of the discovery order).

2014DeLuca Co. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super 2012) (stating that claims are waived where an appellant does not develop an argument or cite to any authority to support the claim). 3 JAMS Rule 30 states that the Arbitrator may not be an expert in any case relating to the dispute that is the subject of arbitration. 4 The Arbitrator was involved with an unrelated action between Cory and Tornese, concerning a defamation claim that arose out of an email Cory had sent to the Arbitrator during the arbitration proceedings at issue in this case.

2014DeLuca Co. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super 2012) (stating that claims are waived where an appellant does not develop an argument or cite to any authority to support the claim). 3 JAMS Rule 30 states that the Arbitrator may not be an expert in any case relating to the dispute that is the subject of arbitration. 4 The Arbitrator was involved with an unrelated action between Cory and Tornese, concerning a defamation claim that arose out of an email Cory had sent to the Arbitrator during the arbitration proceedings at issue in this case.

2024On April 26, 2021, Appellants filed a “Motion for Leave to Conduct Discovery Related to the Identities of Unknown Defendants” (“Appellants’ ____________________________________________ to disclose his identity and a reasonable opportunity to contest the petition;” 2) “[e]very plaintiff who petitions the court to disclose the identity of an anonymous or pseudonymous communicator must present sufficient evidence to establish a prima facie case for all elements of a defamation claim, within the plaintiff's control, such as would survive a motion for summary judgment;” 3) “[a] petitioner must subm

2024Specifically, the Pilchesky Court held, before a trial court may issue a discovery order that provides a defamation plaintiff with the identities of anonymous or pseudonymous internet posters, the trial court must address the following four requirements: first, “[t]he reviewing court must ensure that the John Doe defendant receives proper notification of a petition to disclose his identity and a reasonable opportunity to contest the petition;” second, “[e]very plaintiff who petitions the court to disclose the identity of an anonymous or pseudonymous communicator must present sufficient evidenc

2015As noted above, the second element of a defamation claim is publication by the defendant. “[Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.’’'’ Agriss, 483 A.2d at 463 (emphasis added).

2015A libel plaintiff need not show ‘special damages’ to satisfy the statutory burden of proving ‘special harm.’ ” Id. (footnote and emphasis omitted).

2010The Pennsylvania Supreme Court has held that in order to award punitive damages to a private party plaintiff in a defamation suit, a jury must conclude that there was clear and convincing evidence that the defendant(s) acted with “actual malice.” Hepps v. Philadelphia Newspapers Inc., 506 Pa. 304 , 485 A.2d 374 (1984), reversed on other grounds, 475 U.S. 767 , 106 S.Ct. 1558 , 89 L.Ed.2d 783 (1986); Bargerstock v. Washington Greene Community Action Corporation, 397 Pa. Super. 403, 415 , 580 A.2d 361, 366 (1990).

2010The Pennsylvania Supreme Court has held that in order to award punitive damages to a private party plaintiff in a defamation suit, a jury must conclude that there was clear and convincing evidence that the defendant(s) acted with “actual malice.” Hepps v. Philadelphia Newspapers Inc., 506 Pa. 304 , 485 A.2d 374 (1984), reversed on other grounds, 475 U.S. 767 , 106 S.Ct. 1558 , 89 L.Ed.2d 783 (1986); Bargerstock v. Washington Greene Community Action Corporation, 397 Pa. Super. 403, 415 , 580 A.2d 361, 366 (1990).

2024When the issue is properly raised by the plaintiff, the defendant has the burden of proving the following elements: (1) the truth of the defamatory communication; (2) the privileged character of the occasion on which it was published; and/or (3) the character of the subject matter of defamatory comment as of public concern. 42 Pa.C.S. § 8343(b); Joseph, 129 A.3d at 424-25. - 12 - J-A28039-23 There is no “wholesale defamation exemption for anything that might be labeled ‘opinion,’” however, because “expressions of ‘opinion’ may often imply an assertion of objective fact.” Milikovich v. Lorain J

2024When the issue is properly raised by the plaintiff, the defendant has the burden of proving the following elements: (1) the truth of the defamatory communication; (2) the privileged character of the occasion on which it was published; and/or (3) the character of the subject matter of defamatory comment as of public concern. 42 Pa.C.S. § 8343(b); Joseph, 129 A.3d at 424-25 . - 12 - J-A28039-23 There is no “wholesale defamation exemption for anything that might be labeled ‘opinion,’” however, because “expressions of ‘opinion’ may often imply an assertion of objective fact.” Milikovich v. Lorain

2024See, e.g., Pa.R.Civ.P. 240(j)(1), Note (“A frivolous action or proceeding has been defined as one that ‘lacks an arguable basis either in law or in fact.’”) (citation omitted); Ocasio v. Prison Health Services, 979 A.2d 352 , 355 (Pa. Super. 2009) (same).

2024See, e.g., Pa.R.Civ.P. 240(j)(1), Note (“A frivolous action or proceeding has been defined as one that ‘lacks an arguable basis either in law or in fact.’”) (citation omitted); Ocasio v. Prison Health Services, 979 A.2d 352, 355 (Pa. Super. 2009) (same).

2024Further, as this case stands, the trial court has never addressed whether Appellants’ proposed notification procedure in its Third Discovery Motion was adequate, the trial court has never ruled on whether any of the contested statements are capable of a defamatory meaning,5 the trial court has never ruled on whether Appellants presented “sufficient evidence to establish a prima facie case for all elements of [their] defamation claim,” and the trial court has never “expressly balance[d] the defendant’s First Amendment rights against the strength of the plaintiff’s prima facie case.” See id.; se

2018See Urban v. Dollar Bank, 725 A.2d 815 (Pa. Super. 1999), appeal granted, 742 A.2d 172 (Pa. 1999).

2018Commonwelth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010). -8- J-A05036-18 Here, Chasan failed to identify specifically in his concise statement how the evidence had been insufficient to satisfy any of the elements necessary to establish a defamation claim.

2016“Whether a communication can be construed to have a defamatory meaning is a question of law for the court to determine.” Cashdollar v. Mercy Hosp. of Pittsburgh, 595 A.2d 70, 75 (Pa. Super. 1991).

2015Id. at 206 (internal quotation marks and citations omitted); see also Sprague v. Walter, 656 A.2d 890, 922-23 (Pa. Super. 1995) (in the context of a defamation claim, discussing that an award of punitive damages requires both common law malice, evidenced by conduct that is outrageous, malicious and wanton, and actual malice, a constitutional standard requiring that “publication of an allegedly defamatory statement was made either with knowledge that the statement was false or with reckless disregard for its truth or falsity”).

2015Id. at 206 (internal quotation marks and citations omitted); see also Sprague v. Walter, 656 A.2d 890, 922-23 (Pa. Super. 1995) (in the context of a defamation claim, discussing that an award of punitive damages requires both common law malice, evidenced by conduct that is outrageous, malicious and wanton, and actual malice, a constitutional standard requiring that “publication of an allegedly defamatory statement was made either with knowledge that the statement was false or with reckless disregard for its truth or falsity”).

2014See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 , 109 S.Ct. 2678 , 105 L.Ed.2d 562 (1989). .

2014See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 , 109 S.Ct. 2678 , 105 L.Ed.2d 562 (1989). .

2014In Pennsylvania, any person bringing a defamation claim bears the burden of proving: “(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.” Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007) (citing 42 Pa. CONS.

2014Generally, “[d]efamation is a communication which tends to harm an individual’s reputation so as to lower him [ ] in the estimation of the community or deter third persons from associating or dealing with him [ ].” Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa.Super.2014) (citation omitted); see also 42 Pa.C.S.A. § 8343 (outlining the burdens of proof in a defamation claim).

2012It is well settled that truth is an absolute defense to a defamation claim, see, American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 592 Pa. 66, 77-78 , 923 A.2d 389, 396 (2007), and that the defendant bears the burden of proving the truth of the defamatory communication.

2012It is well settled that truth is an absolute defense to a defamation claim, see, American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 592 Pa. 66, 77-78 , 923 A.2d 389, 396 (2007), and that the defendant bears the burden of proving the truth of the defamatory communication.

2011See Cahill, at 464 (noting that a public figure plaintiff need not provide evidence of actual malice in a petition to disclose because "[w]ithout discovery of the defendant's identity, satisfying this element may be ... impossible"); see also Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163 , 439 A.2d 652, 662 (1981) ("The proof of `actual malice' calls a defendant's state of mind into question, and does not readily lend itself to summary disposition.") (citation omitted), quoting Hutchinson v. Proxmire, 443 U.S. 111 , 120 n. 9, 99 S.Ct. 2675 , 61 L.Ed.2d 411 (1979). [16] In so doing, a pl

2011See Cahill, at 464 (noting that a public figure plaintiff need not provide evidence of actual malice in a petition to disclose because "[w]ithout discovery of the defendant's identity, satisfying this element may be ... impossible"); see also Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163 , 439 A.2d 652, 662 (1981) ("The proof of `actual malice' calls a defendant's state of mind into question, and does not readily lend itself to summary disposition.") (citation omitted), quoting Hutchinson v. Proxmire, 443 U.S. 111 , 120 n. 9, 99 S.Ct. 2675 , 61 L.Ed.2d 411 (1979). [16] In so doing, a pl