Rush v. Philadelphia Newspapers, Inc.

• Decision Date: 09 June 1999
• Citation: 732 A.2d 648
• Parties: Harold L. RUSH and Dorothy Sumners Rush, Appellants v. PHILADELPHIA NEWSPAPERS, INC., and Zachary Stalberg Kevin Haney, Yvette Ousley and Cynthia Burton, Appellees.
• Court: Pennsylvania Superior Court

732 A.2d 648

Harold L. RUSH and Dorothy Sumners Rush, Appellants v. PHILADELPHIA NEWSPAPERS, INC., and Zachary Stalberg Kevin Haney, Yvette Ousley and Cynthia Burton, Appellees.

Superior Court of Pennsylvania.

Submitted April 8, 1999.

Filed June 9, 1999.

Adrian J. Moody, Philadelphia, for appellants.

Amy B. Ginensky, Philadelphia, for appellees,

Before HUDOCK, EAKIN and MUSMANNO, JJ.

HUDOCK, J.:

¶ 1 Harold L. Rush and Dorothy Sumners Rush (the Rushes) appeal from the order that granted summary judgment to Philadelphia Newspapers, Inc., Zachary Stalberg, Kevin Haney, Yvette Ousley and Cynthia Burton (the newspaper) on the Rushes' complaint sounding in defamation and invasion of privacy (false light). We affirm.

¶ 2 The trial court summarized the pertinent facts of this case as follows:

The underlying action filed by the [Rushes] claimed that two separate articles written by and published by the [newspaper] defamed them and invaded their privacy by casting them in a false light. The [newspaper] filed preliminary objections to the complaint. On October 31, 1996, the Honorable Pamela P. Cohen granted the preliminary objections pertaining to the defamation count in the complaint and dismissed those claims. The claims pertaining to invasion of privacy (false light) were permitted to remain. Extensive discovery has taken place and based upon the record and existing case law, the [newspaper has] moved for summary judgment on the basis that [the Rushes] cannot prove their claims as a matter of law.

[Appellant], Harold Rush, was the owner of T-Enta Corporation, a business which contracted with the School District of Philadelphia to provide vending services to schools. Plaintiff, Dorothy Rush, was a member of the School Board who was appointed after the vending contract was awarded to her husband's business. The record reveals that a large degree of controversy surrounded the awarding of the vending contract to Mr. Rush. In addition, the appointment of Mrs. Rush to the School Board came with its own questions, concerns and opposition. The record also reveals that prior to 1996, several articles were published by [the newspaper] which reported facts relating to both of the Rush's [sic] and their dealings with politicians, public figures, and business figures in Philadelphia. No lawsuits were ever brought regarding these articles. In February, 1996, [the newspaper] authored and published two articles relating to a speech given by the President of the Philadelphia School Board, Andrew Farnese. This speech focused on the elimination of "patronage" in the School District and Mr. Farnese's attempt to reduce District financial expenditures. The articles identified three individuals who maintained contracts with the District which may be targets in the contract review and revisions initiated by Mr. Farnese. The three individuals were identified as having been active in former Congressman Gray's political machine. Mr. Rush's company was one of the three individuals identified in the article. As a result of these two articles, [the Rushes] filed suit claiming that their privacy had been invaded by the [newspaper] who had cast them in a false light.

Trial Court Opinion, 11/9/98, at 1-2.

¶ 3 The Rushes raise the following issues on appeal:

1. THE NEWSPAPER ARTICLE WAS CAPABLE OF A DEFAMATORY MEANING

2. THE APPELLEES' ARTICLE CAST THE APPELLANTS IN A FALSE LIGHT

3. EVIDENCE EXISTED THAT THE APPELLEES ACTED NEGLIGENTLY

4. DISPUTED ISSUES OF FACT PRECLUDED SUMMARY JUDGMENT

Appellants' Brief at 3.

¶ 4 In reviewing the grant of summary judgment, we look to whether the trial court committed an error of law. Panichelli v. Liberty Mut. Ins. Group, 543 Pa. 114, 669 A.2d 930 (1996).

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. The moving party has the burden of proving the nonexistence of any genuine issue of material fact. The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Salazar v. Allstate Ins. Co., 549 Pa. 658, 662, 702 A.2d 1038, 1040 (1997); see also Bethlehem Steel Corp. v. MATX Inc., 703 A.2d 39 (Pa.Super.1997). The entry of summary judgment is proper where the uncontraverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Knoud v. Galante, 696 A.2d 854, 855 (Pa.Super.1997), appeal denied, 553 Pa. 707, 719 A.2d 747 (1998); Phico Ins. Co. v. Presbyterian Med. Serv., 444 Pa.Super. 221, 663 A.2d 753, 755 (1995).

¶ 5 Initially, we address the newspaper's claim that the Rushes' first issue, regarding the defamation cause of action, is not properly before this Court because the trial court granted summary judgment on this claim on October 31, 1996, and no appeal was taken from that order. However, the October 31, 1996, order was not immediately appealable because it did not dispose of all claims or all parties to the action. This Court has stated:

The time for filing [an] appeal is measured from the date an appealable order is entered. Under Pennsylvania law, an appeal may only be taken from an interlocutory order as of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P.341), from a collateral order (Pa.R.A.P.313), or from an interlocutory order by permission (Pa.R.A.P. 313, 1311, 42 Pa. C.S.A. § 702(b)).

* * *

[T]he partial grant of summary judgment only becomes final after entry of an order disposing of all claims or of all parties. Appeal must be taken within thirty days thereafter. See [Bonner v. Fayne, 441 Pa.Super. 432, 657 A.2d 1001 (1995) ]; Pa.R.A.P. 341.

Smitley v. Holiday Rambler Corp., 707 A.2d 520, 523-24 (Pa.Super.1998) (some citations and quotation marks omitted; footnotes omitted). An order granting summary judgment on one cause of action but not all those contained in a complaint will not be immediately appealable absent the trial court's certification that an immediate appeal would facilitate resolution of the entire case. Pa.R.A.P. 341(c). We note that no such certification exists in this case. Under such circumstances, an appellant must wait to file his appeal until after an order disposing of all claims or all parties has been issued. The trial court entered a final order in the instant case on September 14, 1998, and the Rushes' appeal was filed in a timely fashion thereafter. Hence, the Rushes are not precluded by our Rules of Appellate Procedure from appealing the October 31, 1996, order at this time.¹

¶ 6 The Rushes first contend that the newspaper article was capable of a defamatory meaning. This Court has stated the elements of a defamation action in the following manner:

In an action for defamation, the plaintiff must prove: (1) the defamatory character of the communication; (2) publication by the defendant; (3) its application to the plaintiff; (4) understanding by the recipient of its defamatory meaning; (5) understanding by the recipient of it as intended to be applied to plaintiff; (6) special harm to the plaintiff; (7) abuse of a conditionally privileged occasion. Initially, it is the function of the court to determine whether the communication complained of is capable of a defamatory meaning. A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. A communication is also defamatory if it ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession. If the court determines that the challenged publication is not capable of a defamatory meaning, there is no basis for the matter to proceed to trial; however, if there is an innocent interpretation and an alternate defamatory interpretation, the issue must proceed to the jury.

Maier v. Maretti, 448 Pa.Super. 276, 671 A.2d 701, 704 (1995) (citations omitted). Further, when determining whether a communication is defamatory, the court will consider what effect the statement would have on the minds of the average persons among whom the statement would circulate. Id. "The words must be given by judges and juries the same significance that other people are likely to attribute to them." Id.

¶ 7 The present case concerns two newspaper articles, the first published in THE PHILADELPHIA DAILY NEWS on February 21, 1996. This first article, entitled "Starting with Patronage: Board's Prez Calls for Major Cutbacks," outlined a speech given by the president of the Philadelphia School Board, Mr. Andrew N. Farnese. Therein, Farnese noted that the school district faced a budget deficit of $150 million, and outlined his proposals for saving the district money. A major component of Farnese's plan was to eliminate contracts with "politically connected people." Farnese stated, "The price of political patronage has become too high for our financially distressed district." Farnese also stated that he planned to introduce an ethics code for the Board of Education that would preclude board members from making money from district contracts. The newspaper mentioned three politically connected people who might be affected in this article by name, one of whom was Mr. Rush. The article also referenced Mr. Rush as having worked with former United States Representative William H. Gray.

¶ 8 The second article appeared in THE PHILADELPHIA DAILY NEWS on February 22, 1996. This article was entitled, "Goring Whose Ox? Fumo Friends & Foes Alike May Lose Out if Schools Actually Eliminate `Patronage'." In this article, Mr. Rush is again...