                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-16-2005

Capozzi v. Lucas
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3468




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NOT PRECEDENTIAL

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                             Case No: 04-3468

                         LOUIS J. CAPOZZI;
                    CAPOZZI AND ASSOCIATES, P.C.


                                      v.

                      CHRISTOPHER S. LUCAS;
                   LAW OFFICES OF CHRISTOPHER S.
                      LUCAS AND ASSOCIATES,

                                    Appellants

                           ________________

              On appeal from the United States District Court
                  for the Middle District of Pennsylvania
                      District Court No.: 03-CV-00811
              District Judge: The Honorable John E. Jones III
                             ________________


              Submitted pursuant to Third Circuit LAR 34.1(a)
                           September 15, 2005

          Before: SLOVITER, BARRY, and SMITH, Circuit Judges

                        (Filed: September 16, 2005)
                         _____________________

                       OPINION OF THE COURT
                        _____________________




                                    1
SMITH, Circuit Judge.

       Christopher S. Lucas appeals a final judgment of the District Court entered in

favor of Louis J. Capozzi following a bench trial. The District Court entered judgment in

favor of Capozzi in connection with Capozzi’s state law defamation claim against Lucas.

Lucas challenges the District Court’s decision, arguing that the allegedly defamatory

statements contained in a letter drafted by Lucas and circulated to prospective clients

cannot form the basis for a successful defamation claim because they were “substantially

true.” Lucas also challenges certain of the District Court’s evidentiary rulings, as well as

the District Court’s decision to award damages to Capozzi. We will affirm the judgment

of the District Court.1

       Because we write only for the parties, we restrict our discussion to the facts and

legal principles necessary to resolve this appeal. The parties are competing lawyers

whose practices focus primarily upon providing representation to Pennsylvania long-term

care providers such as nursing homes. Both firms advise their clients on issues relating to

the receipt of reimbursements from Pennsylvania’s Department of Public Welfare

(“DPW”), including appeals from rate-setting decisions made under DPW’s

reimbursement system, appeals from DPW audit findings, and the potential settlement of

such appeals through DPW’s “Intergovernmental Transfer” (“IGT”) program. The IGT


       1
        Capozzi’s complaint included a Lanham Act claim arising under 15 U.S.C. §
1125(a)(1)(B). This claim was dismissed at the close of Capozzi’s case-in-chief. The District
Court exercised supplemental jurisdiction over Capozzi’s Pennsylvania defamation claim
pursuant to 28 U.S.C. § 1367. We have appellate jurisdiction under 28 U.S.C. § 1291.

                                               2
program refers to a process in which Pennsylvania counties may transfer funds to DPW to

be used in settling claims filed by long-term care providers. Transfer of such funds from

a county to DPW enables DPW to collect matching funds from the federal government.

Documents that memorialize this process of transfer-matching-reimbursement in

particular cases are known as IGT Agreements.

       On August 28, 2000, Capozzi filed a lawsuit, styled as a “Class Action,” in the

Pennsylvania Board of Claims. This lawsuit was filed on behalf of a group of nursing

home chains that wished to challenge certain aspects of DPW’s reimbursement

procedures and practices. The group of entities that authorized the filing of the lawsuit

organized itself under the banner of “CPR for Quality Care.” The CPR for Quality Care

Organizing Agreement authorized a contingency payment to counsel (Capozzi) of “10%

of any increases in payment resulting from the Class Action, including any increases

resulting from a settlement of the Class Action, from a settlement of any related matters

involving Members, or from any distributions to the Members occurring after August 1,

2000 as may result from an Intergovernmental Transfer Agreement requiring a settlement

of any related matters involving the Members.” Prior to and independent of this

Organizing Agreement, Capozzi had negotiated hourly and contingent fee arrangements

with certain preexisting clients whom he represented in connection with DPW rate

appeals. A number of these pre-existing clients joined the CPR for Quality Care lawsuit

after it was filed. Some elected to maintain their earlier, separate fee arrangements with



                                             3
Capozzi, while a number opted instead to bind themselves to the Organizing Agreement’s

10% contingency fee provision.

       Following Capozzi’s filing of the CPR for Quality Care lawsuit with the

Pennsylvania Board of Claims, settlement offers were made by DPW in connection with a

series of IGT Agreements that proposed to utilize county and matching funds to resolve

pending nursing facility rate appeals. An October 13, 2000 IGT Agreement made

available $152,861,823 to resolve pending nursing facility rate appeals. Most of the

nursing facilities represented by Capozzi accepted the funds offered in this IGT

Agreement, agreeing in return to withdraw pending rate appeals and waive any further

participation in the Class Action filed by Capozzi. The Class Action proceeded with the

remaining nursing facilities that were among the named plaintiffs, but ultimately was

dismissed by the Commonwealth Court based on a finding that the Board of Claims

lacked jurisdiction over the case.

       As a result of these proceedings, Capozzi sent bills to various nursing facilities that

had received funds in connection with the October 13, 2000 IGT Agreement, including

facilities that were parties to the CPR for Quality Care Organizing Agreement containing

the contingent fee provision quoted above. It appears from the record that certain

facilities receiving these bills took the position that they had not acceded to the

Organizing Agreement’s contingent fee provision, instead retaining an independent fee

arrangement with Capozzi that arguably did not require payment of the monies sought.



                                              4
When these entities refused to pay, Capozzi initiated fee litigation against them. As of

April 2003, Lucas and his firm represented five such facilities in connection with this fee

litigation. On April 23, 2003, in what was apparently an effort to obtain additional

clients, Lucas faxed a letter to approximately 700 recipients. In this letter, he described

the existence of contingent fee arrangements between Capozzi and various entities that

had accepted settlement funds pursuant to the October 13, 2000 IGT Agreement. This

letter noted that some facilities that paid Capozzi did so based on the assumption that the

receipt of IGT funds was within the contingency spelled out in an applicable fee

agreement, “and/or because they believed Capozzi’s work contributed to the

establishment and/or aggregation of the IGT fund.”

       The letter did not distinguish between entities that had preexisting contingency fee

arrangements with Capozzi in connection with Capozzi’s work on rate appeals, and

entities whose only contingent fee arrangement with Capozzi arose under the Organizing

Agreement. Nor did the letter distinguish between pre-existing Capozzi clients that had

abandoned their earlier fee arrangements with Capozzi upon joining the CPR for Quality

Care lawsuit, and those that had retained such arrangements in lieu of the Organizing

Agreement’s 10% contingency fee provision. The letter described Lucas’s work on

behalf of his clients (the “Facilities”), and stated, “[W]e believe that if the court finds that

the receipt of the IGT funds by these Facilities is not within the contingency set forth in

the Capozzi contingent fee agreements, other Facilities that have already paid Capozzi a



                                               5
percentage of their IGT funds would be entitled to a refund.” The letter concluded by

urging recipients to contact Lucas promptly, in order to avoid the expiration of the statute

of limitations.

       Neither party disputes the District Court’s factual finding that the “scope of

contingency” argument outlined in Lucas’s letter had no application whatsoever to the

vast majority of the 700 recipients of the letter. Indeed, many of these recipients included

persons and entities that had never been Capozzi’s clients, entities that were not nursing

facilities, entities that had no connection to the reimbursement system that was the subject

of the CPR for Quality Care lawsuit, and entities that, while represented by Capozzi, had

never entered into any sort of contingent fee agreement with him, whether in connection

with the Organizing Agreement or otherwise. More importantly, Lucas concedes that the

“scope of contingency” argument had no validity with respect to recipients whose only

relationship with Capozzi arose from participation in the CPR for Quality Care lawsuit,

and who were subject to the 10% contingency fee provision contained in the Organizing

Agreement. In sum, Lucas does not dispute that the “scope of contingency” argument

potentially applied, at most, to between three and five of the letter’s 700 initial

addressees.2

       Based on these facts, the District Court held that Lucas’s letter was defamatory



       2
         After faxing the letter to 700 recipients, Lucas later placed an advertisement containing
similar text in a trade publication. He also posted a link to an electronic copy of the letter on his
firm’s website.

                                                  6
under Pennsylvania law, in that it falsely implied that recipients who had paid fees to

Capozzi had been improperly billed for matters outside the scope of their own contingent

fee arrangements. Lucas challenges this holding, arguing that the statements contained in

the letter were “substantially true,” and thus not defamatory. However, Lucas’s truth

defense is predicated entirely on the potential existence of other unproven defenses to

payment and/or theories of reimbursement that may have been available to entities that

had paid funds to Capozzi after receiving funds pursuant to the October 13, 2000 IGT

Agreement. In this sense, Lucas’s substantive challenge to the District Court’s decision is

intertwined with his evidentiary challenges, in which he asserts that the District Court

improperly barred him from introducing evidence concerning various ways in which

Capozzi may have allegedly engaged in improper or unauthorized billing with respect to

clients who received the Lucas letter.

       In an appeal following a bench trial, a district court’s findings of fact “shall not be

set aside unless clearly erroneous.” Newark Branch, NAACP v. City of Bayonne, 134

F.3d 113, 119 (3d Cir. 1998). A district court’s evidentiary rulings are reviewed for an

abuse of discretion. See In re Merritt Logan, Inc. v. Fleming Companies, 901 F.2d 349,

359 (3d Cir. 1990). A district court’s legal conclusions are subject to plenary review. See

Fotta v. Trustees of United Mine Workers 319 F.3d 612, 615-16 (3d Cir. 2003). “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



                                              7
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.” Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648,

652 (Pa. Super. 1999). While truth is a defense to a claim of defamation, a statement

must be considered in context, and the literal truth of isolated sentences does not preclude

a finding of falsity based on the existence of a misleading implication. See Davis v.

Resources for Human Development, 770 A.2d 353, 357 (Pa. Super. 2001); Larsen v.

Philadelphia Newspapers, Inc., 543 A.2d 1181, 1189 (Pa. Super. 1988) (“The falsity with

which we are concerned arises from the inference derived from published statements,

whether those statements are actually true or not.”).

       The District Court’s holding with respect to the defamatory nature of Lucas’s letter

was proper, and the District Court did not abuse its discretion in excluding the evidence

that Lucas sought to introduce. Even if the fee litigation initiated by Capozzi had been

favorably resolved in favor of Lucas’s clients pursuant to the theory outlined in Lucas’s

letter, this fact alone would not have provided a basis for concluding that Capozzi had

billed the letter’s recipients in a manner not contemplated by the contingent fee provision

contained in the Organizing Agreement to which many of the recipients were parties.

Lucas’s letter falsely implied that such a direct correlation existed, and this implication of

contractually-unauthorized billing by Capozzi tended to harm Capozzi’s reputation

among those who viewed the letter. The sweeping nature of Lucas’s assertion, which



                                              8
failed to acknowledge the existence of the various fee arrangements Capozzi had

negotiated with his clients, had a tendency to be particularly harmful to Capozzi’s

reputation amongst clients who were subject to the Organizing Agreement and had paid

to Capozzi a portion of the funds received under the October 13, 2000 IGT Agreement,

notwithstanding that the particular theory of improper billing described in the letter was

inapplicable to any such client whose involvement with Capozzi was limited to the CPR

for Quality Care “Class Action.”

       Given the nature of Capozzi’s claim, Lucas cannot seek to defend the falsity of the

implications concerning Capozzi’s contractually-unauthorized billing by introducing

evidence concerning other theories of alleged improper billing that were not referenced in

his letter. Lucas’s arguments concerning the truth defense, and his challenges to the

District Court’s evidentiary rulings, improperly conflate the relatively narrow scope of the

false implication arising from Lucas’s letter with the breadth of the general language used

by the courts in describing the reputational harm inflicted by a defamatory statement.

This approach is contrary to the manner in which the truth defense is applied in

Pennsylvania courts, because, while “it is permissible to show that one claiming damages

for injury to his reputation has a bad reputation, proof of separate acts of bad conduct or

guilt of criminal offenses is not admissible on an issue of general reputation, not even to

mitigate damages.” See Frisk v. News Company, 523 A.2d 347, 351-52 (Pa. Super. 1986)

(quoting Bausewine v. Norristown Herald, Inc., 41 A.2d 736, 742 (Pa. 1945) (emphasis



                                             9
added)).3 Thus, Lucas’s attempt to establish a truth defense for statements concerning the

scope of Capozzi’s contingent fee arrangement with his clients by introducing unrelated

evidence concerning separate challenges to Capozzi’s billing practices was properly

rejected by the District Court.

       The fact that Lucas’s letter outlined a theory of fee recovery that was potentially

applicable to a small number of the recipients does not change the result. “Publication”

of a defamatory statement occurs when it is circulated to third parties, Davis, 770 A.2d at

358, but a statement circulated to third parties may nonetheless be “conditionally

privileged” if it was made on a proper occasion, from a proper motive, in a proper

manner, and based upon reasonable cause. See Beckman v. Dunn, 419 A.2d 583, 587 (Pa.

Super. 1980) (citing Baird v. Dun & Bradstreet, Inc., 285 A.2d 166, 171 (Pa. 1971)). We

need not decide whether Lucas’s letter was “conditionally privileged” in the first instance.

It is well settled that a conditional privilege may be lost if the publisher exceeds the scope

of the privilege by publishing the defamation to unauthorized parties who lack a valid

interest in the underlying subject matter. See Miketic v. Baron, 675 A.2d 324, 329 (Pa.

Super. 1996); Agriss v. Roadway Express, Inc., 483 A.2d 456, 463-64 (Pa. Super. 1984).

A conclusion that a conditional privilege has been abused is a finding of fact subject to

review for clear error. See Agriss, 483 A.2d at 463 (citing Montgomery v. City of


       3
        Applying this rule, the Frisk court rejected attempts by a defendant to introduce
newspaper articles containing accusations of misconduct against the plaintiffs, noting that the
subject matter of these other articles was not related to the contents of the allegedly defamatory
statements that gave rise to the plaintiff’s claim. See Frisk, 523 A.2d at 352.

                                                10
Philadelphia, 140 A.2d 100, 102-03 & n.4 (Pa. 1958)). Given the facts of this case as

found by the District Court, we hold that the District Court did not commit clear error in

concluding that any conditional privilege that might apply was lost by virtue of Lucas

having circulated his letter to over 700 recipients, the vast majority of whom were in no

position to challenge Capozzi’s prior billings based upon the “scope of contingency”

theory outlined by Lucas.

       In addition to the issues discussed above, Lucas also challenges the District

Court’s award of damages to Capozzi and Capozzi’s firm. Lucas is correct in stating that

as a matter of law, a plaintiff’s “actual” or compensatory damages in a defamation case

must be established through competent proof. See Gertz v. Robert Welch, Inc., 418 U.S.

323, 350 (1974). Pennsylvania law recognizes various types of damages in connection

with defamation claims. Relevant here are “general damages,” which refer to those

compensatory damages that typically flow from defamation, such as impairment of

reputation, personal humiliation, and mental anguish and suffering. See Marcone v.

Penthouse Int’l Magazine, 754 F.2d 1072, 1077 (3d Cir. 1985) (applying Pennsylvania

law); Sprague v. Am. Bar Ass’n, 276 F. Supp. 2d 365, 368 (E.D. Pa. 2003) (applying

Pennsylvania law, and citing Walker v. Grand Central Sanitation, Inc., 634 A.2d 237, 243

(Pa. Super. 1993)). Capozzi introduced sufficient evidence at trial from which a

reasonable factfinder could infer the existence of such damages, and thus the District

Court did not err in awarding compensatory damages of $500 to Capozzi and $1500 to



                                            11
Capozzi’s law firm.

      We have considered Lucas’s other arguments in addition to those discussed above,

and find them to be without merit. The judgment of the District Court is affirmed.




                                           12
