Rubin v. CBS Broad. Inc.

• Decision Date: 08 September 2017
• Docket Number: No. 3397 EDA 2015.,3397 EDA 2015.
• Parties: Howard RUBIN, Appellant v. CBS BROADCASTING INC. d/b/a CBS 3, Appellee
• Court: Pennsylvania Superior Court

170 A.3d 560

Howard RUBIN, Appellant

v.CBS BROADCASTING INC. d/b/a CBS 3, Appellee

No. 3397 EDA 2015.

Superior Court of Pennsylvania.

Argued November 16, 2016

Filed September 8, 2017

Matthew B. Weisberg, Morton, for appellant.

Michael L. Berry, Philadelphia, for appellee.

BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.^*

OPINION BY MOULTON, J.:

Howard Rubin appeals the October 20, 2015 order entered in the Philadelphia County Court of Common Pleas granting the motion of CBS Broadcasting Inc. d/b/a CBS 3 ("CBS") for judgment on the pleadings. We reverse and remand for further proceedings.

This appeal arises from a news report related to Rubin's September 2014 termination from his job as a school police officer at Multi–Cultural Academy Charter School ("MACS") in Philadelphia. The central issue on appeal is whether the substance of that report—that Rubin was fired from his job "over allegations of child sexual abuse"—was sufficiently close to the undisputed facts to warrant judgment on the pleadings for CBS. We conclude that it was not.

On September 29, 2014, during the 6:00 p.m. airing of Eyewitness News on a television station owned and operated by CBS, anchor Chris May¹ read the following report regarding Rubin's termination: "A police supervisor at a Philadelphia charter school is fired over allegations of child sexual abuse. Howard Rubin is the suspect. He is accused in the sexual abuse of an underage male student. Rubin worked at the Multi–Cultural Charter School on North Broad Street." Opinion Pursuant to Pa.R.A.P. 1925(a), 1/20/16, at 2 ("1925(a) Op.").

On September 30, 2014, Eyewitness News aired the following statement:

We would like to correct a story we reported yesterday. We reported that a police supervisor at the Philadelphia Multi–Cultural Academy Charter School was fired over allegations that he sexually abused a male student at the school.

According to the school's principal, the supervisor's contract was not renewed by the school. But the principal says the supervisor was never accused of sexual abuse of any student, and his separation from the school did not have anything to do with any allegations of abuse.

Sources now tell us that Philadelphia Police Special Victims Unit has no record of any investigation or charges involving the police supervisor.

We apologize for the error.

Id. at 2.²

On May 8, 2015, Rubin filed an amended complaint alleging defamation and false light invasion of privacy claims against both CBS and May. On May 18, 2015, CBS and May filed an answer with new matter. The new matter referenced, and attached, the September 13, 2014, termination letter to Rubin from James Higgins, MACS' principal. The letter provided as follows:

Dear Officer Rubin:

This letter is in reference to your employment at [MACS] as a School Police Officer.

As we discussed this past Thursday, September 11, some serious allegations have been made against you, which are now being investigated by police. On Thursday, you were immediately suspended indefinitely, without compensation, and MACS has been conducting its own investigation of these allegations, independent of the police probe.

While we have yet to complete our investigation, we have determined that your behavior, at the very least, and even by your own admission, was unbecomingof a school police officer and a public employee.

You have been warned in writing about fraternizing with minors, and you have acknowledged that you understood that this type of behavior would not be tolerated again.

Because of your failure to honor this expectation, we have decided that your employment with MACS will not be renewed for the 2014–2015 school year, and as a result, is hereby terminated, effective immediately.

We thank you for your service to our school and wish you the best in your future endeavors.

Ans. to Am. Compl. with New Matter, Ex. K, 5/18/15.

On June 7, 2015, Rubin filed a reply to the new matter. Thereafter, on August 25, 2015, CBS and May filed a motion for judgment on the pleadings, alleging that Rubin could not meet his burden of demonstrating that the news report was materially false, and that because the report was substantially true it was non-actionable as a matter of law. Mot. for Judg. on Pleadings, 8/25/15, at 2, 8. On September 17, 2015, Rubin filed a response. On October 20, 2015, the trial court granted the motion, although on different grounds than those asserted by CBS and May. This appeal followed.

Rubin raises the following issue on appeal: "Upon a Motion for Judgment on the Pleadings, did the Court of Common Pleas[ ] err in holding that Rubin—a private actor—did not present a cognizable claim of defamation or false light under any standard when the above-referenced publication was ultimately admitted false?" Rubin's Br. at 8.

Our scope and standard of review of the granting of a motion for judgment on the pleadings is well-settled.

Our scope of review on an appeal from the grant of judgment on the pleadings is plenary. Entry of judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1034, which provides that "after the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment on the pleadings." Pa.R.C.P. 1034(a). A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. On appeal, we accept as true all well-pleaded allegations in the complaint.

On appeal, our task is to determine whether the trial court's ruling was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly be tried before a jury or by a judge sitting without a jury.

Neither party can be deemed to have admitted either conclusions of law or unjustified inferences. Moreover, in conducting its inquiry, the court should confine itself to the pleadings themselves and any documents or exhibits properly attached to them. It may not consider inadmissible evidence in determining a motion for judgment on the pleadings. Only when the moving party's case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings.

Kelly v. N'wide Ins. Co., [ 414 Pa.Super. 6, 606 A.2d 470, 471–72 (Pa.Super. 1992) ] (quotations and citations omitted).

Altoona Reg'l Health Sys. v. Schutt, 100 A.3d 260, 265 (Pa.Super. 2014) (some internal citations and quotation omitted).

I. Defamation

We first examine Rubin's defamation claim. The relevant burdens in a defamation action depend on the status of the plaintiff, the subject matter of the communication, and the nature of the defendant. See generally Am. Future Sys., Inc. v. Better Bus. Bur. of Eastern Pa., 592 Pa. 66, 923 A.2d 389 (2007) ; Lewis v. Phila. Newspapers, Inc., 833 A.2d 185 (Pa.Super. 2003). Because the subject matter of the report is a matter of public concern and CBS is a media defendant, Rubin has the burden of proving both the falsity of the report as well as fault. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (holding that in a defamation case against a media defendant for speech of public concern, there is "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages"); see also Lewis, 833 A.2d at 191. Rubin must prove that the report was materially false:

The law does not require perfect truth, so long as any inaccuracies do not render the substance and "gist" of the statements untrue. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). The "gist" of a statement is true if the effect upon a reader is the same regardless of the inaccuracy. Id.

ToDay's Housing v. Times Shamrock Commc'ns, Inc., 21 A.3d 1209, 1215 (Pa.Super. 2011). Substantial truth "absolve[s] a defendant even if she cannot justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details." Masson, 501 U.S. at 516–17, 111 S.Ct. 2419 (quotation omitted).

As to the appropriate standard of fault, this

depends on whether the plaintiff is a public or private figure.^{[3 ]} If the plaintiff is a public official or public figure, and the statement relates to a matter of public concern, then to satisfy First Amendment strictures the plaintiff must establish that the defendant made a false and defamatory statement with actual malice.

Am. Future Sys., Inc., 923 A.2d at 400. In contrast, a private-figure plaintiff may recover by establishing that the defendant acted negligently in publishing the allegedly defamatory statements. Joseph v. Scranton Times L.P., 634 Pa. 35, 129 A.3d 404, 428 (2015) (noting that where "plaintiffs are private[-]figure plaintiffs, this Court has held that Pennsylvania requires private figures to prove, at a minimum, negligence in a civil libel case"); see also Am. Future Sys., Inc., 923 A.2d at 400.⁴

The trial court recognized that "[i]n Pennsylvania, a private figure plaintiff may prove the element of falsity by either a negligence or actual malice standard." 1925(a) Op. at 6. The court also stated:

Unfortunately for [Rubin], it is of no moment whether or not he committed the actions alleged in his personnel file. The defamation requirement of "falsity" should not be taken at face value. Rather, [Rubin] must be able to show a reasonable case for either negligence or actual malice in Appellees' reporting.

Id. at 8. The trial court did not address the question briefed by the parties below—whether Rubin could establish that the report was materially false. Rather, it found that, whether or not the report was false, Rubin could not establish that CBS acted...