Zartman v. Lehigh County Humane Soc.

• Decision Date: 14 September 1984
• Citation: 482 A.2d 266,333 Pa.Super. 245
• Parties: Marlin U. ZARTMAN, Appellant, v. LEHIGH COUNTY HUMANE SOCIETY, Jane Schramm, Mary Ann Faye, and John Kauffeld.
• Court: Pennsylvania Superior Court

482 A.2d 266

333 Pa.Super. 245

Marlin U. ZARTMAN, Appellant, v. LEHIGH COUNTY HUMANE SOCIETY, Jane Schramm, Mary Ann Faye, and John Kauffeld.

Superior Court of Pennsylvania.

September 14, 1984

Argued Sept. 6, 1983.

Dennis L. O'Connell, Gilbertsville, for appellant.

Donald B. Pritchard, Jr., Norristown, for Lehigh County appellee.

Malcolm J. Gross, Allentown, for Faye, appellee.

Before ROWLEY, POPOVICH and MONTGOMERY, JJ.

MONTGOMERY Judge:

Plaintiff-appellant Marlin Zartman, appeals from an order sustaining defendants-appellees' preliminary objections in the nature of a demurrer and dismissing his complaint. For the reasons stated herein, we reverse the order and remand for further proceedings.

On June 1 1982, appellant, the owner and operator of the Gilbertsville Sales Stables Livestock Auction at Zern's Market in Montgomery County, filed a complaint in trespass against the Lehigh County Humane Society (Society), Jane Schramm, Mary Ann Faye and John Kauffeld. Comprised of seven counts, the complaint averred that the defendants had defamed Zartman, invaded his privacy, intentionally and maliciously interfered in his business relationships, and unlawfully conspired to further these objectives. These allegations stemmed from two newspaper articles, "Where an animal's fate is determined by the highest bid," ^[1] published on February 24, 1982, in The Morning Call, an Allentown daily newspaper, and "A Life Devoted to Saving Dogs and Cats," printed in the April 25, 1982, edition of The Philadelphia Inquirer.

Defendant Kauffeld filed an answer which contained new matter. Thus, appellant's action against Kauffeld was not part of the order here on appeal. In addition, appellant has abandoned his conspiracy claim on appeal. We are not therefore concerned with the Inquirer article which is relevant only to the conspiracy claim and to the claim against Kauffeld.

The remaining defendants filed preliminary objections, including several which were in the nature of a demurrer, asserting that those portions of the Morning Call article characterized by appellant as libelous were incapable of a defamatory meaning. ^[2] The Honorable Richard S. Lowe agreed, sustained the preliminary objections in the nature of a demurrer, and dismissed the complaint as to the Society, Schramm and Faye. This appeal followed.

Adjudication of a defamation action in Pennsylvania involves, initially, consideration of § 8343(a) of the Judicial Code, 42 Pa.C.S. § 8343:

§ 8343 Burden of Proof

(a) Burden of plaintiff.--In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be applied to the plaintiff.

(6) Special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion.

Procedurally, it is the trial court's function to determine, in the first instance, whether the communication complained of is capable of a defamatory meaning. Rutt v. Bethlehems' Globe Publishing Co., --- Pa.Super. 627, 484 A.2d 72 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). If the court determines that it is capable of a defamatory meaning, it then becomes the jury's function to decide whether the communication was so understood by its recipients. Corabi v. Curtis Publishing Co., 441 Pa. 432, 442, 273 A.2d 899, 904 (1971); Braig v. Field Communications, 310 Pa.Super. 569, 574, n. 2, 456 A.2d 1366, 1369, n. 2 (1983); Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 482, 448 A.2d 6, 10 (1982).

A statement is defamatory if it tends to harm an individual's reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him. Corabi v. Curtis Publishing Co., 441 Pa., at 442, 273 A.2d at 904; Rybas v. Wapner, 311 Pa.Super., at 54, 457 A.2d at 110. As one leading authority has stated,

Defamation is ... that which tends to injure "reputation" in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. It necessarily, however, involves the idea of disgrace ...

Prosser, Law of Torts, 4th Ed., Sec. 111, p. 739, quoted with approval in Vitteck v. Washington Broadcasting Co., 256 Pa.Super. 427, 432, 389 A.2d 1197, 1200 (1978).

In determining whether a newspaper article, for example, is defamatory, the trial court must decide whether it can reasonably be construed to have the libelous meaning ascribed to it by the complaining party. Corabi v. Curtis Publishing Co., supra; Rutt v. Bethlehems' Globe Publishing Co., supra. As such, the work must be construed in its entirety. Rutt v. Bethlehems' Globe Publishing Co., supra; Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980).

The test is the effect the [entire] article 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 significance that other people are likely to attribute to them.

Corabi v. Curtis Publishing Co., 441 Pa., at 447, 273 A.2d at 907, quoting Boyer v. Pitt Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936).

The issue in this case is whether the Morning Call article is capable of a defamatory meaning. ^[3] In assessing this claim, we first observe that

[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom ... [P]reliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the Plaintiff.

Bickell v. Stein, 291 Pa.Super. 145, 149, 435 A.2d 610, 612 (1981), quoting Donnelly v. DeBourke, 280 Pa.Super. 486, 421 A.2d 826 (1980), overruled on other grounds, Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) (Citations omitted.)

At this procedural stage, any doubt must be resolved against the demurrer. Vitteck v. Washington Broadcasting Co., supra. Furthermore, the fact that the alleged defamatory statements are susceptible to an innocuous interpretation does not necessarily defeat the cause of action. Corabi v. Curtis Publishing Company, supra; Brophy v. Philadelphia Newspapers Inc., supra. When ruling on preliminary objections in the nature of a demurrer, the question is whether a nondefamatory interpretation is the only reasonable one. "... [U]nless the court is certain the communication is incapable of bearing a defamatory meaning a demurrer challenging the sufficiency of the complaint should be overruled." Vitteck v. Washington Broadcasting Co., Inc., 256 Pa.Super. at 433, 389 A.2d at 1201. Applying these legal principles to the facts of this case, we find the order dismissing appellant's complaint to be in error.

The article describes appellant's animal auction and the continuing dissension between him and the Lehigh County Humane Society. (Schramm is shelter manager of the Society.) It includes an account of a 1977 raid on the auction by Society members, following which appellant was:

... charged with 150 counts of animal cruelty.

"We saw animals eating their own vomit. Most couldn't stand up in their cages," said Cindy O'Keefe, one of the society members on the 1977 raid. "There was blood in their stools and discharge running from their eyes and noses."

It also detailed a purchase of a cat made by Schramm as follows:

"I knew the cat was severely sick," said Schramm, "and I didn't want it to go somewhere where it would continue to suffer."

* * *

By the time the cat arrived in Allentown, said Schramm, "She was literally gasping for air, thrashing, crying and dying. I had no choice but to put her to sleep."

* * *

According to the preliminary autopsy report, the cat died of feline infectious peritonitis (FIP), a highly contagious, always fatal disease, according to Dr. Eugene Witiak, who performed the autopsy. "When we suspect FIP, we don't put the cats in the regular hospital," said Dr. Witiak. "We isolate them."

The final portion of the article links appellant to at least two dealers who sell animals to research labs and describes the following tests as examples of those for which the animals are used.

The most common test for toxicity is the Lethal Dose 50 in which 50 percent of the animals in a test group have to die in order to get a toxicity rating to satisfy federal requirements. Lipstick, for example, is fed to animals until half of them die, usually of stomach blockages or uremia, not of toxicity, said Marc Paulhus, an investigator with the U.S. humane society. Dr. Fox calls this test "psuedo-science."

The $14-billion-a-year cosmetics industry uses an estimated half-million rabbits a year for the Draize test in which a substance like hairspray is dripped into the eyeballs of live rabbits until they ulcerate or the rabbits go blind. The Draize test is used to test the eye irritancy of substances like soap, perfume and other common products.

Appellant concludes that the entire article, and especially these excerpts, accuse him of cruelty to animals, maintaining unhealthy conditions at his auction and selling the majority of the animals at the auction for testing and laboratory use similar to that described above. We agree that such a conclusion is...