DeMary v. Latrobe Printing and Pub. Co.

• Citation: 762 A.2d 758
• Parties: Louis DeMARY and Dorothy DeMary, Appellants, v. LATROBE PRINTING AND PUBLISHING COMPANY, a Pennsylvania Corporation, t/d/b/a The Latrobe Bulletin, Thomas Whiteman, Marie McCandless and Jeanette Wolff, Appellees.
• Decision Date: 09 November 2000
• Court: Superior Court of Pennsylvania

762 A.2d 758

Louis DeMARY and Dorothy DeMary, Appellants, v. LATROBE PRINTING AND PUBLISHING COMPANY, a Pennsylvania Corporation, t/d/b/a The Latrobe Bulletin, Thomas Whiteman, Marie McCandless and Jeanette Wolff, Appellees.

Superior Court of Pennsylvania.

Argued September 6, 2000.

Filed November 9, 2000.

Emily Smarto, Greensburg, for appellants.

David G. Klaber, Pittsburgh, for appellees.

Before McEWEN, President Judge, CAVANAUGH, KELLY, JOHNSON, HUDOCK, ELLIOTT, JOYCE, MUSMANNO, and LALLY-GREEN, JJ.

JOHNSON, J.:

¶ 1 Louis DeMary and Dorothy DeMary [hereinafter collectively referred to as "the DeMarys"] appeal from the order sustaining preliminary objections filed by Latrobe Printing and Publishing, Inc., t/d/b/a/ the Latrobe Bulletin, Thomas Whiteman, Marie McCandless, and Jeanette Wolf [hereinafter collectively referred to as "the Bulletin"] to the DeMarys' twelve count amended complaint. The DeMarys argue that their amended complaint was sufficient to withstand the Bulletin's demurrers. For the following reasons, we reverse and remand. ¶ 2 On February 20, 1998, the DeMarys commenced an action for defamation against the Bulletin. The twenty-one count complaint averred various libel counts based on articles written and published by the Bulletin that concerned a workers' compensation hearing, public proceedings of the Derry Township Board of Supervisors (Board), and comments made by citizens while a Board meeting was in recess. At all relevant times, Louis DeMary was a member of the Board.

¶ 3 The Bulletin filed preliminary objections, and the trial court struck various counts of the original complaint. The court ordered the DeMarys to file a more specific pleading with respect to the remaining counts. The DeMarys then filed an amended complaint that contained twelve counts. The Bulletin again filed preliminary objections asserting the defense of the "fair report privilege" and claiming that the amended complaint failed to state a claim upon which relief could be granted. The record bears no indication that the DeMarys ever objected to the Bulletin's premature interjection of a substantive defense at this stage of the litigation. Following argument on the Bulletin's preliminary objections, the trial court found that the fair report privilege applied, sustained the Bulletin's preliminary objections and dismissed the amended complaint in its entirety with prejudice. The DeMarys then brought this appeal.

¶ 4 On appeal, the DeMarys argue that the trial court committed errors of law on four separate occasions when it determined that: (1) the Bulletin did not abuse the privilege by including embellishments, exaggerations and additions; (2) the fair report privilege applies to workers' compensation hearings; (3) the fair report privilege could not be defeated by showing that the defendant published the defamatory material solely for the purpose of causing harm to the person defamed; and (4) the fair report privilege applies to comments made by citizens while the Board meeting was in recess. We shall address these questions in order.

¶ 5 When reviewing a trial court's order sustaining preliminary objections in the nature of a demurrer and dismissing a suit, our scope of review is plenary. See Donahue v. Federal Express Corp., 753 A.2d 238, 241 (Pa.Super.2000)

.

When reviewing an order granting preliminary objections in the nature of a demurrer, an appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.

Juban v. Schermer, 751 A.2d 1190, 1192 (Pa.Super.2000) (emphasis added) (quoting Jackson v. Garland, 424 Pa.Super. 378, 622 A.2d 969, 970 (1993)). Where affirmance of the trial court's order sustaining preliminary objections would result in the dismissal of an action, we may do so only when the case "is clear and free from doubt." Donahue, 753 A.2d at 241. "To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections." Id. We review the trial court's decision for an abuse of discretion or an error of law. See Ellenbogen v. P.N.C. Bank, N.A., 731 A.2d 175, 181 (Pa.Super.1999)

.

¶ 6 In this case, the Bulletin invoked the fair report privilege in its preliminary objections. A "privilege to defame is an affirmative defense which may not be decided on preliminary objections." Gordon v. Lancaster Osteopathic Hospital Assoc. Inc., 340 Pa.Super. 253, 489 A.2d 1364, 1376 (1985). Normally, a trial court's scope of review in ruling upon preliminary objections in the nature of a demurrer is limited to a review of the factual averments within the complaint to determine their legal sufficiency for stating a claim upon which relief may be granted. See Donahue, 753 A.2d at 241

. However, "[w]here a party erroneously asserts substantive defenses in preliminary objections rather than to raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule" on whether the affirmative defense defeats the claim against which the defense has been invoked. Preiser v. Rosenzweig, 418 Pa.Super. 341, 614 A.2d 303, 305 (1992). Accordingly, in the instant case, the trial court's scope of review effectively extended beyond the DeMarys' complaint to include a determination of whether, as a matter of law, the Bulletin's affirmative defense defeats the defamation claims set forth in the DeMarys' complaint. Although a trial court's scope of review properly encompasses consideration of an affirmative defense first when ruling upon a motion for judgment on the pleadings, the trial court's standard of review remains unchanged. Thus, while the court could properly consider the Bulletin's affirmative defense on preliminary objections due to the DeMarys' default, see id., it was compelled to review the averments in the DeMarys' complaint solely for legal sufficiency of the claims asserted, accepting as true all well pled averments of fact. See Juban, 751 A.2d at 1192. See also Emerich v. Philadelphia Center for Human Development, Inc., 554 Pa. 209, 720 A.2d 1032, 1034 n. 1 (1999) (stating that the "[p]rinciples applicable to judgment on the pleadings are the same as the principles applicable to a preliminary objection in the nature of a demurrer").

¶ 7 In the first issue presented for our review, the DeMarys argue that the trial court erred in determining that the Bulletin had not abused the privilege. The trial court concluded that the DeMarys had "failed to plead sufficient facts which would result in a finding that the privilege was abused by the defendants." Trial Court Opinion (T.C.O.) at 7. In Pennsylvania, the fair report privilege protects the press from liability for the publication of defamatory material if the published material reports on an official action or proceeding. See Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586, 588 (1963)

; Mosley v. Observer Pub. Co., 427 Pa.Super. 471, 629 A.2d 965, 967 (1993). No responsibility attaches so long as the account of the official action or proceeding is fair, accurate and complete, and is not published "solely for the purpose of causing harm to the person defamed." Sciandra, 187 A.2d at 589. See also RESTATEMENT (FIRST) OF TORTS § 611. "However, this qualified immunity is forfeited if the publisher steps out of the scope of the privilege or abuses the `occasion.' This can be done by exaggerated additions, or embellishments to the account." Id. at 600, 187 A.2d 586. See also Mosley, 629 A.2d at 969.

¶ 8 In reviewing the DeMarys' complaint, the trial court was bound to consider as true "all the material facts set forth in the complaint as well as all inferences reasonably deducible therefrom." Juban, 751 A.2d at 1192. A review of the trial court opinion reveals that it did not adhere to this standard. Paragraphs 23, 30, 31, 34, 35, 68, and 94 of the DeMarys' complaint clearly set forth specific factual averments, which, if accepted as true, would establish that the Bulletin abused the fair report privilege. However, the trial court did not accept these factual averments as true. Instead, it "reviewed the articles in question and ... determined that [the Bulletin] did not embellish or exaggerate any of the matters addressed during the meeting in question and raised by the testimony in the workers' compensation case." T.C.O. at 4. In so doing, the trial court committed an error of law by going beyond the affirmative defense and the face of the complaint and concluding that the Bulletin had not embellished or exaggerated the matters surrounding the workers' compensation case and the Board meeting. See Preiser, 614 A.2d at 305

. This type of factual determination is to be made by the jury and, therefore, is clearly proscribed at this stage of the litigation. See First Lehigh Bank v. Cowen, 700 A.2d 498, 503 (Pa.Super.1997) (stating that "[w]hether the [fair report] privilege is abused is a question for the jury."). Therefore, we conclude that the trial court erred in sustaining the Bulletin's demurrers based on the DeMarys' failure to aver facts sufficient to establish abuse of the fair report privilege.

¶ 9 In the second issue presented for our review, the DeMarys argue that the trial court erred in determining that the fair report privilege applies to newspaper articles regarding workers' compensation hearings. After reviewing the DeMarys' argument on their second issue, we conclude that they advance two arguments in support of their...