Green v. Mizner

• Decision Date: 03 April 1997
• Citation: 692 A.2d 169
• Parties: John B. GREEN, Jr., Appellant, v. John F. MIZNER, Esq., MacDonald, Illig, Jones & Britton, Dennis Heindel, and Laurel Manufacturing, Inc., Appellees.
• Court: Pennsylvania Superior Court

Page 169

692 A.2d 169

John B. GREEN, Jr., Appellant, v. John F. MIZNER, Esq., MacDonald, Illig, Jones & Britton Dennis Heindel, and Laurel Manufacturing, Inc., Appellees.

Superior Court of Pennsylvania.

Argued Nov. 12, 1996.

Filed April 3, 1997.

Anthony S. Guido, Dubois, for appellant.

John P. Garhart, Erie, for Mizner and MacDonald, Illig, Jones & Britton, appellees.

James M. Horne, State College, for Heindel and Laurel Manufacturing, appellees.

Before HUDOCK, FORD ELLIOTT and HESTER, JJ.

HUDOCK, Judge:

This is an appeal from the order granting Appellees' preliminary objections in the nature of a demurrer and dismissing Appellant's complaint. We reverse and remand.

The facts may be summarized as follows: Appellant was a duly elected member of the Dubois City Council. On June 27, 1994, Appellant and three other council members passed a resolution accepting a proposal from Atlas Pressed Metals (Atlas) to purchase a 4.1 acre parcel owned by the city. In accepting Atlas's bid, council rejected a proposal by Appellee Laurel Manufacturing, Inc. (LMI). Thereafter, LMI, represented by Appellee MacDonald, Illig, Jones & Britton, filed an action in equity against the City of Dubois, Atlas, Appellant, and two other council members to enjoin the sale of the property. At the time LMI instituted the action, Appellant was a candidate for mayor of Dubois.

Just two weeks prior to the mayoral election, Appellee John F. Mizner, Esq. (Mizner) ¹ sent a letter to the Attorney General of the Commonwealth of Pennsylvania requesting that the office investigate certain actions allegedly made by Appellant. According to the letter, Appellant, on his own and without proper authority, illegally retained the services of the law firm of Ferraraccio & Noble. The letter accused Appellant of violating criminal and civil statutes, thus questioning his personal and professional reputation. Mizner forwarded a copy of this letter to the Dubois Courier Express newspaper for publication. In addition, Appellee Dennis Heindel (Heindel), Chief Executive Officer of LMI, forwarded a copy of the letter to local radio stations. While neither the newspaper nor the radio stations published the letter verbatim, excerpts regarding the accusations made in the letter were subsequently published and quoted.

Appellant filed a defamation action against Appellees claiming Mizner's investigative request was nothing more than a negative campaign tactic employed to defeat him in the election. Appellant avers that Mizner's goal was to rescind the sale of the property to Atlas, and that Mizner believed he had a better chance of obtaining this goal if Appellant was not elected. Appellant also claims that both Mizner and Heindel knew that the accusations made in the letter to the Attorney General were false because the decision to retain Ferraraccio & Noble in 1993 was not made unilaterally by Appellant. The crux of Appellant's complaint is that Appellees acted maliciously, hindering his campaign efforts with the result that he lost the election, injuring his reputation and directly causing personal anxiety and financial loss.

Appellees filed preliminary objections to Appellant's complaint in the nature of a demurrer. After hearing arguments, the trial court sustained the objections and dismissed the complaint on two grounds. The first was that Mizner's letter to the Attorney General was not capable of having a defamatory meaning because it consisted of opinions. The second was that Mizner's act of mailing the letter to the Attorney General was privileged, and therefore, not actionable. Thus, the court restricted Appellant's recourse to Mizner's act of mailing the letter to the newspaper and Heindel's act of mailing it to the radio stations. Deeming these actions de minimis, it concluded as a matter of law that Appellant had no cause of action.

Appellant raises the following two issues on appeal:

1. WHETHER [APPELLANT'S] COMPLAINT AS IT RELATES TO MIZNER'S OCTOBER 18, 1995 LETTER AND SUBSEQUENT PUBLICATIONS SUFFICIENTLY AVERS A CAUSE OF ACTION IN DEFAMATION.

2. WHETHER APPELLEES' STATEMENTS ARE PRIVILEGED COMMUNICATIONS PROTECTED BY THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION AND/OR DEFAMATION LAWS OF PENNSYLVANIA.

Appellant's Brief at 2.

When reviewing the grant or denial of preliminary objections in the nature of a demurrer, we must regard the allegations in the appellant's complaint as true and accord him all the inferences reasonably deduced therefrom. Snyder v. Speciality Glass Products, Inc., 441 Pa.Super. 613, , 658 A.2d 366, 368 (1995); Al Hamilton Contracting Co. v. Cowder, 434 Pa.Super. 491, , 644 A.2d 188, 190 (1994). Preliminary objections should only be sustained where it appears with certainty that the law permits no recovery under the allegations pleaded. Al Hamilton Contracting Co., 644 A.2d at 190 (citing Gallagher v. City of Philadelphia, 142 Pa.Commw. 487, 491, 597 A.2d 747, 748 (1991)). When a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Snyder, 658 A.2d at 368.

Before reaching the merits of Appellant's first issue, we note that the only communication we are asked to review is the letter authored by Mizner. Appellant has not challenged the written and oral reports stemming from the letter, nor has he instituted proceedings against the media based on their reports. With this in mind, we turn to Appellant's first issue regarding the propriety of the trial court's conclusion that the letter was not defamatory.

It is the function of the trial court to determine whether a challenged publication is capable of a defamatory meaning. Maier v. Maretti, 448 Pa.Super. 276, , 671 A.2d 701, 704 (1995); Livingston v. Murray, 417 Pa.Super. 202, , 612 A.2d 443, 446, alloc. den., 533 Pa. 601, 617 A.2d 1275 (1992). When making such an assessment, the court must consider the effect of the entire article and the impression it would engender in the minds of the average reader among whom it is circulated. Livingston, 612 A.2d at 446; Maier, 671 A.2d at 705 (a critical factor to consider is the nature of the audience). A publication is defamatory if it tends to blacken a person's reputation or expose him to public hatred, contempt, or ridicule, or injure him in his business or profession. Livingston, 612 A.2d at 447. When communications tend to lower a person in the estimation of the community, deter third persons from associating with him, or adversely affect his fitness for the proper conduct of his lawful business or profession, they are deemed defamatory. Id. Accordingly, we must consider the content of the letter authored by Mizner, the audience to which it was presented, and the effect it may have had thereon.

The letter states the following:

The purpose of this letter is to request an investigation of a matter involving John B. Green who is a member of the DuBois City Council. Recent actions by Mr. Green as a member of City Council appear to involve conduct which is contrary to the Third Class City Code and other provision [sic] of Pennsylvania law.

Specifically, we request an investigation of Mr. Green's retention of the law firm of Ferraraccio and Noble as Special Counsel for the City of DuBois without notifying other members of the DuBois City Council or without the passage of the necessary resolution by the DuBois City Council. We would request you to investigate: (1) whether it was illegal for Mr. Green to retain the law firm of Ferraraccio and Noble as Special Counsel for the City of DuBois; and if so (2) whether appropriate charges should be filed against Mr. Green.

Mr. Green Illegally Retained A Private Law Firm To Serve As Special Counsel For The City Of DuBois Without Passage Of The Necessary Resolution Of The City Council.

The City of DuBois is a Third Class City operating under a Home Rule Charter. The City of DuBois retains a City Solicitor and pays the Solicitor an annual retainer of $17,000. Toni Cherry is currently the City Solicitor and has been the City Solicitor since 1989.

Under the applicable provision of the Third Class City Code, only the DuBois City Council, not individual members, has the authority to retain special counsel. Specifically, the Third Class City Code provides that:

Council may, at its discretion, retain special counsel for particular proceedings or matters of the City and fix his compensation by resolution.

53 P.S. § 36610.

Patrick Nuzzo, the DuBois City Manager, testified under oath that the DuBois City Council never passed a resolution to retain the law firm of Ferraraccio and [Noble] as Special Counsel or to establish the law firm's compensation for services provided to the City of DuBois. According to Mr. Nuzzo, this matter was simply never raised at a DuBois City Council meeting.

However, beginning in February of 1993 and ending in approximately September of 1994, the City of DuBois paid the law firm of Ferraraccio and Noble of Clearfield close to $12,000 (at an hourly rate of $45.00 per hour). All of the legal work performed by Ferraraccio and Noble was legal work that could have and should have been performed by the City Solicitor as part of her responsibilities as the City Solicitor.

What is so amazing about this situation is that Mr. Green unilaterally and without knowledge of the other members of City Council retained the law firm of Ferraraccio and [Noble] as Special Council (sic) to the City and never brought this matter before the City Council for review or approval. It was all done by Mr. Green and Mr. Green only. In addition, our investigation has revealed that the law firm of Ferraraccio and Noble corresponded directly with Mr. Green, submitted the bills in Mr. Green's names (sic) directly to Mr. Green and did not interact with any other members of City Council.

We believe that this type of conduct warrants an investigation. Not only did Mr. Green violate the above-referenced statute, but his actions...