Degnan Chevrolet, Inc. v. Cocco

• Court: Pennsylvania Commonwealth Court
• Writing for the Court: SPORKIN, J.
• Citation: Degnan Chevrolet, Inc. v. Cocco, 63 Pa. D. & C.2d 572 (Pa. Commw. Ct. 1973)
• Decision Date: 07 May 1973
• Docket Number: 4713,3498
• Parties: Degnan Chevrolet, Inc. v. Cocco

63 Pa. D. & C.2d 572

Degnan Chevrolet, Inc. v. Cocco

Nos. 3498, 4713

Common Pleas Court of Philadelphia County, Pennsylvania

May 7, 1973

October term, 1972.

Adjudication in equity.

David Malis, for plaintiff.

John F. X. Fenerty, for defendants.

OPINION

SPORKIN, J.

This matter comes before the court upon the consolidation of a bill in equity filed by plaintiff, Degnan Chevrolet, Inc., (Degnan) against defendants, Albert A. Cocco (Cocco) and his wife, Elizabeth J. Cocco (Mrs. Cocco) and an action in trespass filed by Degnan against Cocco only. ^[1] Degnan instituted these actions simultaneously, October 20, 1972, seeking in the equity action injunctive and general equitable relief, and in the trespass suit damages, arising from the erection by defendants of two signs alleged by Degnan to be libelous.

On November 8, 1972 a preliminary injunction was issued by the Hon. Ned L. Hirsh, J., enjoining and restraining Cocco and Mrs. Cocco " from erecting and maintaining signs placed on their premises which make reference to any business dealings and/or transactions with plaintiff." On November 13, 1972, and on nine intermittent dates thereafter, ^[2] testimony was presented as on final hearing before the writer of this opinion. ^[3]

The facts, as admitted in the pleadings and as found from the testimony and evidence adduced at trial are summarized as follows: ^[4]

On February 27, 1969, Degnan, a Chevrolet dealer, ordered several new Chevrolet automobiles, included among which was a newly manufactured 1969 Impala Custom Coupe bearing the serial number 164479T121078, the sale of which automobile to Cocco is, as will hereafter be discussed, the subject of the present controversy. ^[5]

While this automobile was being unloaded at Degnan's place of business, the car sustained damage to its right front fender and the door hinges adjacent thereto. ^[6] Degnan replaced the damaged fender ^[7] with a new fender and adjusted the hinges, following which Degnan's " Make-Ready" department inspected the car and on its inspection sheet reported it to be in all respects a completely new and merchantable vehicle, ^[8] and the automobile was taken to the Degnan showroom floor.

Cocco chose this particular automobile after having examined several other automobiles on Degnan's two showroom floors, and after inspecting other new cars on the Degnan lot. On April 11, 1969, Cocco placed a deposit of $ 10 on the car and signed an agreement to purchase this vehicle, described thereon as bearing the serial number 164479T121078. The car was accordingly removed from the showroom floor and was returned to the service department of Degnan and was prepared for delivery. Cocco took delivery thereof on April 17, 1969, and on April 26, 1969, Cocco paid the balance due on the total purchase price of $ 3,612.

Approximately seven weeks thereafter, Cocco discovered paint overspray on the chrome stripping attached to the right front fender. His ensuing investigation led him to find that the fender had been replaced upon delivery of the car to Degnan, as stated previously. Cocco, feeling that he had been unjustly wronged by such actions of Degnan, then embarked upon a course designed to gain " recompense" for what he considered to be injuries suffered by him.

Cocco complained both to General Motors and to Degnan, alleging, in substance, that he had paid for what he thought was a new car and that he was actually sold a used automobile. Cocco further demanded a new car to replace the one selected, purchased, and used by him. General Motors stated that the relief sought by Cocco could not be granted in such a case, but Degnan responded that it would willingly refinish the car to Cocco's satisfaction. Cocco, in fact, brought the car to Degnan on or about January 23, 1970, and the refinishing work was performed under the warranty, at no charge to Cocco.

Cocco, however, remained dissatisfied. He continued with the course of action that had been instituted by him immediately upon discovering the alleged defect. This included letters by Cocco to the State Attorney General and to the Bureau of Consumer Protection. Those agencies investigated and reviewed the case, but found no cause for further action. Cocco again complained to Chevrolet and, finally, having been informed at every point that he had no valid cause of action, Cocco filed a complaint against Degnan in the Court of Common Pleas of Philadelphia, ^[9] seeking substantial compensatory and punitive damages.

The case of Cocco v. Degnan was heard by the board of arbitrators on June 19, 1972, which panel unanimously found for Degnan. Cocco appealed on July 12, 1972 the decision of the arbitrators, ^[10] and shortly thereafter erected two signs in his yard, in plain view of the public. Such signs, standing next to each other, read as follows:

" BEFORE YOU BUY

REMEMBER

DEGNAN CHEVROLET

SOLD ME A NEW CAR

THAT HAD $ 198.00

IN BODY REPAIR AND

DID NOT TELL ME."

" DEGNAN AND G.M.

DISSATISFIED CUSTOMER

ASS'N JOIN HERE."

Degnan then filed the instant actions, asserting that the signs resulted in a libelous innuendo that Degnan sold a car to Cocco which was unfit for operation, and concealed the damages to same. Upon consideration of the pleadings, of the testimony presented, of the briefs and arguments of counsel, and of the applicable law, we have concluded that the prayer for injunctive relief should be granted, that Cocco should be permanently enjoined from erecting and/or maintaining the aforementioned signs, and that no monetary damages will be assessed.

Libel has been defined by our Pennsylvania courts as " a maliciously written or printed publication which tends to blacken a person's reputation or expose him to public hatred, contempt, or ridicule or injure him in his business or profession" : Cosgrove S. & C. Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962). As stated in McIntyre v. Weinert, 195 Pa. 52, 56-7, 45 A. 666 (1900), quoting Odgers on Libel and Slander, at page 29:

" 'Any printed or written words are libelous which impeach the credit of any merchant or trader by imputing to him... dishonesty... in the conduct of his business...'" (Italics supplied.)

Cocco contends, however, that the words of the signs, taken in their literal sense, are true. Degnan did, in fact, sell a new car to Cocco upon which it had done $ 198 of fender repair and did not tell him, and Cocco is obviously a dissatisfied, if not absolutely irate Degnan and G. M. customer. ^[11] The law of libel in Pennsylvania does not look solely to the meaning literal of the written words, however, but rather is concerned also with the innuendo arising from such statements. In Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203 (1936) Mr. Justice Stern, speaking for a unanimous court, reaffirmed and elaborated upon the concept of libel by innuendo arising from words which are true when taken only in their literal sense, saying:

" That a publication is susceptible of an interpretation which would render it innocuous does not conclusively defeat a right of action for libel. The test is the effect the (publication) is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them." (Parenthetical insertions and italics supplied.)

In passing upon the alleged libelous nature of Cocco's signs, our courts have uniformly held that it is for the court to say, as a matter of law, whether the writings were capable of a libelous meaning; if they are found to be capable of such an interpretation, it becomes a question of fact as to whether the writings actually had that meaning: Bausewine v. Norristown Herald, 351 Pa. 634, 643, 41 A.2d 736 (1945). To be defamatory, these words must have been understood by the " recipient correctly, or mistakenly but reasonably," to mean that the defamed party asserts they were understood to mean: Restatement, Torts, § 563, § 614(2), comment (b). It is ominously clear to us that the writings in question were capable of meaning that Degnan sold an imperfect or unfit vehicle, or that Degnan sold him a reconditioned or used vehicle while dishonestly representing that it was a new car, and are thus capable of a defamatory innuendo.

In deciding whether the statements on Cocco's signs were, in fact, understood by passersby to have the meaning asserted by Degnan, we may, as the fact finder, properly consider extrinsic circumstances surrounding the publication: Bausewine, supra; McAndrew v. Scranton Republican Publishing Co., 165 Pa.Super 276, 280, 281, 67 A.2d 730 (1949); Bocchiccio v. Curtis Publishing Co., 203 F.Supp. 403, 409 (E.D. Pa. 1962); Baird et al. v. Dun & Bradstreet, Inc., 446 Pa. 266, 272, 285 A.2d 166 (1971).

Degnan introduced evidence of such extrinsic circumstances, establishing that Cocco complained to several sources, alleging that in selling him a car upon which it had replaced a fender damaged in shipping, Degnan had foisted upon Cocco goods which were damaged, less than perfect, or even used, and that Cocco characterized Degnan's business dealings with him as being dishonest or close to criminal activities. Cocco himself testified that he spoke to perhaps a thousand people in his neighborhood about his " problems" with Degnan, and Degnan presented testimony to the effect that the dealership was innundated with phone calls in response to Cocco's signs, which callers berated Degnan for being dishonest in its business dealings.

Finally as to whether the readers of Cocco's sign could reasonably have considered the words thereon to mean that Degnan had...