J-E03003-16

                            2017 PA Super 397

ELLIOT MENKOWITZ, M.D.,                         IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

PEERLESS PUBLICATIONS, INC. AND
ERIC ENGQUIST,

                                                   No. 2048 EDA 2014


            Appeal from the Judgment Entered July 23, 2014
          In the Court of Common Pleas of Montgomery County
                      Civil Division at No: 98-07291


ELLIOT MENKOWITZ, M.D.,                         IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA


                   v.

PEERLESS PUBLICATIONS, INC. AND
ERIC ENGQUIST,

                        Appellants                 No. 2096 EDA 2014


            Appeal from the Judgment Entered July 23, 2014
          In the Court of Common Pleas of Montgomery County
                      Civil Division at No: 98-07291


BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE,
        DUBOW, MOULTON, RANSOM, JJ.

OPINION BY STABILE, J.:                       FILED DECEMBER 15, 2017

     This is an action for defamation commenced by a private-figure plaintiff

against a media defendant involving an issue of public interest.        Elliot
J-E03003-16



Menkowitz, M.D., appeals from the July 23, 2014 judgment entered in his

favor and against Peerless Publications, Inc. and Eric Engquist (collectively the

“Newspaper”), and challenges the trial court’s grant of judgment non obstante

verdict (judgment n.o.v.) on a punitive damage award rendered by a jury.1

The Newspaper cross-appeals contesting the trial court’s denial of judgment

n.o.v. or a new trial on the jury award of compensatory damages on the

defamation claim. After careful review, we vacate the judgment in favor of

Dr. Menkowitz in its entirety and remand for entry of judgment in favor of

Peerless Publications, Inc. and Eric Engquist.

       The facts giving rise to the within action are as follows. Dr. Menkowitz

is a board-certified orthopedic surgeon.         In 1971, he was granted staff

privileges at the Pottstown Memorial Medical Center (“PMMC”). In April 1996,

Mr. John Buckley, the President and CEO of PMMC, told Dr. Menkowitz that his

behavior of yelling at staff and other doctors was unacceptable. Mr. Buckley

conveyed the Medical Executive Committee’s (“MEC”) decision “to suspend

[Dr. Menkowitz’s] privileges or allow him to take a voluntary leave in an

attempt to address his behavioral concerns which had been ongoing for some

time.” N.T. Jury Trial Vol. II, 3/17/14, at 115, see Ex. P-3; N.T. Jury Trial


____________________________________________


1 Both parties purported to appeal from the June 26, 2014 order disposing of
the Newspaper’s motion for post-trial relief. We have amended the caption to
reflect that the appeals properly lie from the entry of judgment. Lynn v.
Pleasant Valley Country Club, 54 A.3d 915, 918 (Pa. Super. 2012) (citation
omitted) (appeal properly lies from entry of judgment).

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Vol. III, 3/18/14, at 609, see Ex. P-3. At that time, Dr. Menkowitz informed

Mr. Buckley that he had been diagnosed with attention deficit disorder (“ADD”)

in 1995, he was under the care of a psychiatrist and psychologist, and that

Ritalin had been prescribed for the condition.       Consequently, in lieu of

suspension, the MEC imposed certain conditions described in a May 9, 1996

letter to Dr. Menkowitz:

      This is to inform you that [PMMC] will not tolerate conduct by you
      which violates the Bylaws and Policies (“Bylaws”) of [PMMC].
      Specifically, this includes, but is not limited to, the following
      conduct: verbal harassment of other physicians or employees of
      [PMMC]; use of unprofessional language to other physicians or
      employees of [PMMC]; inappropriate behavior in the presence of
      [PMMC] patients; or physical intimidation of [PMMC] employees.

N.T. Jury Trial Vol. III, 3/18/14, at 609, see Ex. P-4. The letter continued

that, after Dr. Menkowitz’s meeting with Mr. Buckley and others, his disclosure

of previously unknown circumstances, and “his agreement to refrain from

providing services to patients in [PMMC] through and including May 8, 1996,

it was determined that no suspension of your clinical privileges would take

place at that time.” Id. The letter concluded:

      Nevertheless, you should know that any future failure by you to
      abide by the above restrictions, or any similar related violation by
      you of the Bylaws of [PMMC] will be considered a willful disregard
      of the Bylaws of [PMMC] and will result in the summary suspension
      of your full clinical privileges.

Id.




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      Less than one year later, on March 18, 1997, Dr. Menkowitz’s privileges

were suspended by PMMC for six months. The suspension was confirmed in a

formal letter dated March 25, 1997:

      Since the issuance of the Caution letter, [PMMC] Administration
      has informed you of your continuing unacceptable conduct . . .
      This disruptive and unacceptable conduct has been and continues
      to be a grave concern to [PMMC] and staff because a significant
      portion of it occurs in operating room suites, patient floors and the
      transitional care unit.

      Consequently, on March 18, 1997, after hearing reports of your
      conduct, the MEC voted unanimously to reaffirm its decision of
      April 26, 1996 to implement section 6.5(b) of the Bylaws and
      summarily suspend your medical staff privileges on the basis that
      your conduct described in the Caution letter continues and
      therefore constitutes a willful disregard of the Bylaws or other
      policies of [PMMC] and also constitutes conduct which affects or
      could affect, adversely the health or welfare of a patient(s). On
      March 24, 1997, during a meeting at which [PMMC] staff members
      appeared and described instances of disruptive behavior by you in
      the operating room suites and transitional care unit, the Board of
      Directors reached the conclusion that your conduct poses an
      immediate threat to the health and welfare of patients.
      Accordingly, the Board of Directors voted at the March 24, 1997,
      meeting to unanimously approve the MEC’s decision to summarily
      suspend your medical staff privileges. This summary suspension
      shall be for a period of six (6) months commencing midnight,
      March 25, 1997 (“Suspension Period”).

N.T. Jury Trial Vol. II., 3/17/14, at 130, see Ex. P.-16; N.T. Jury Trial
Vol. III, 3/18/14, at 609, see Ex. P-16.

      On April 18, 1997, the first of four articles written by Eric Engquist, at

the time a reporter at the Pottstown Mercury Newspaper, about Dr.

Menkowitz’s suspension appeared in the Pottstown Mercury Newspaper:

      A prominent physician has been suspended by Pottstown Memorial
      Medical Center after 25 years on the hospital staff.

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     Orthopedic surgeon Dr. Elliot Menkowitz, a partner at Orthopedic
     Specialists of Pottstown, 1603 High St., was banned in late March
     from seeing patients at the hospital.

     The reported six-month suspension was handed down after a
     “peer review” of Dr. Menkowitz by the hospital’s medical executive
     committee and its board of directors.

     Dr. Menkowitz’s sudden absence from the hospital has spawned
     rampant rumors of professional misconduct regarding his
     treatment of an older female patient. Yet hospital spokesperson
     Debra L. Bennis has declined numerous requests from The
     Mercury for comment.

     “It’s an internal peer review issue, and we’re not at liberty to
     discuss the details,” said Bennis. Asked to define the peer review
     process, she would only say it concerned medical staff privileges.

     Dr. Menkowitz has retained prominent Philadelphia attorney, Alan
     Epstein, but as of Thursday had not legally challenged his
     suspension. Epstein declined to comment Thursday . . .

           ....

     Colleagues of the doctor lamented his recent fate and said they
     have never hesitated to refer patients to him.

     “I just feel bad,” said Dr. Michael Pawlowski. “I know him to be a
     nice person. I have sent him patients before and he has taken
     care of them suitably.”

     “I use him for orthopedic cases,” said Dr. Keith Harrison. “In fact,
     my son fractured his foot and Dr. Menkowitz took care of him.”

     The two physicians, both former members of the hospital’s
     medical executive committee, said they were unaware of the
     reason for Dr. Menkowitz’s suspension. “You hear rumors, but I’m
     not aware of any details,” said Dr. Pawlowski. I know what you
     know: that he’s not there to take patients.”




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Complaint, 4/14/98 at ¶ 10 (quoting The Pottstown Mercury Article, April 18,

1997).

      The article listed Dr. Menkowitz’s professional credentials, civic

involvement and contributions, and concluded:

      Three unrelated lawsuits, including two for wrongful death, have
      been filed against Dr. Menkowitz in Montgomery County in the last
      five years. The outcome of those suits could not be determined
      Thursday.

      No formal action against Dr. Menkowitz’s medical license has been
      taken by the state Board of Medicine, according to State
      Department spokesman Kevin Shivers.

Id. (quoting The Pottstown Mercury Article, April 18, 1997).

      The Newspaper published a second article the next day, April 19, 1997,

which reported the details of a civil rights suit filed by Dr. Menkowitz that day

against PMMC. The suit alleged that his suspension violated the Americans

With Disabilities Act of 1990, 42 U.S.C. §12101 et seq. and other federal and

state statutes. The Newspaper summarized Dr. Menkowitz’s assertions that

he had ADD, that PMMC was so informed, that he was being treated for that

condition, and that he did not pose a threat to patients or hospital employees.

Complaint, 4/14/98 at ¶ 12.        The Newspaper reported the physician’s

allegation that PMMC “engaged in a pattern of harassment and intimidation

due to his disability, including suspending his medical privileges without good

cause and a fair hearing[,]” and his contention that his suspension had nothing




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to do with his treatment of patients. N.T. Jury Trial Vol. III, 3/18/14, at 430,

609, see Ex. P-19.The Pottstown Mercury Article, April 19, 1997.

       In a follow-up news article on April 23, 1997, the Newspaper reported

that an accord had been reached between Dr. Menkowitz and PMMC, and that

Dr. Menkowitz’s suspension had been lifted.         Although the terms were

confidential, Dr. Menkowitz’s attorney was quoted as saying, “Treatment of

the patients by Dr. Menkowitz was never an issue.” N.T. Jury Trial Vol. IV,

3/19/14, at 99.

       On April 26, 1997, the Newspaper published the following in its editorial

column entitled “Cheers and Jeers,” which purported to “[c]heer those working

to make our community a better place in which to live,” and “[j]eer those

whose deeds merit derision.” The Pottstown Mercury, April 26, 1997.

              JEERS: To Dr. Elliott Menkowitz and Pottstown Memorial
       Medical Center for the way they settled an incident that got the
       doctor suspended. PMMC suspended Menkowitz, but then the
       doctor sued in federal court for damages and to get the suspension
       lifted. PMMC then backed down and lifted the suspension . . . .

Complaint, 4/14/98 at ¶ 14.

       Dr. Menkowitz filed the instant defamation lawsuit against the

Newspaper on April 14, 1998.2 He alleged that the statement “professional

____________________________________________


2  Dr. Menkowitz also asserted claims for invasion of privacy based on false
light, intentional interference with existing and prospective relationships, and
intentional infliction of emotional distress based on the newspaper articles.




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misconduct in his treatment of an older, female patient” contained in the April

18, 1997 news article, as well as the April 26, 1997 editorial, were defamatory

per se and false and made with reckless disregard for the truth.3             Dr.

Menkowitz asserted that the statement “professional misconduct in his

treatment of an older, female patient” portrayed him “as an incompetent

doctor who engaged in criminal acts toward his patients,” Id. at ¶17, and

“implied that Dr. Menkowitz had engaged in unlawful or unprofessional

behavior.” Id. at ¶ 19.

        Dr. Menkowitz testified at trial that he fell into a deep depression after

reading the first article.      N.T. Jury Trial, Vol. II, 3/17/14, at 254.    The

depression medications he was prescribed caused fasciculations4 and tremors

in his arms and hands and prevented him from performing surgery. He offered

expert testimony that his psychological condition impaired his ability to

perform surgery.

        The Newspaper took the position that the aforementioned statement

was true, not misleading, and published in good faith, with a proper motive,

and without malice.       Further, in new matter, the Newspaper pled that Dr.

Menkowitz’s injury to reputation and emotional and psychological injuries



____________________________________________


3Dr. Menkowitz did not challenge the statements in the April 19 and 23, 1997
articles as defamatory or false.

4   Fasciculations are involuntary muscle twitches.

                                           -8-
J-E03003-16



purportedly caused by the defamatory publication were the same damages

that Dr. Menkowitz claimed, in the federal litigation against PMMC, were

caused by his wrongful suspension.

       For various reasons not pertinent hereto, this case did not proceed to a

jury trial until March 2014, almost sixteen years after the filing of the

complaint. At the close of Dr. Menkowtiz’s case, the trial court denied the

Newspaper’s motion for nonsuit, which was premised on the absence of proof

of falsity. A motion for directed verdict at the close of the evidence also was

denied. The jury found in favor of Dr. Menkowitz on the defamation claim and

awarded both compensatory and punitive damages.5

       The Newspaper filed post-trial motions seeking judgment n.o.v. or, in

the alternative, a new trial or a remittitur of both the compensatory and

punitive damages. Following argument, the trial court vacated the punitive

damage award based on its finding that there was no evidence of malice, but

upheld the verdict and the award of compensatory damages. Dr. Menkowitz

appealed and he presents one issue for our review:

       1. Where the jury’s verdict on punitive damages was supported
          by clear and convincing evidence that [the Newspaper] acted
          with actual malice in publishing defamatory statements about
          [Dr. Menkowitz] in reckless disregard of the falsity of the
          defamatory statements published by them, and the [trial] court
____________________________________________


5  The jury did not find liability for invasion of privacy based on false light,
intentional interference with existing and prospective relationships, and
intentional infliction of emotional distress and these claims are not at issue on
appeal. The jury also did not award any damages for emotional distress.

                                           -9-
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          below, in granting judgment notwithstanding the verdict,
          viewed the evidence only in a light favoring to [the
          Newspaper], did the [trial] court below commit reversible error
          in vacating the jury’s award of punitive damages?

Dr. Menkowitz’s Brief at 7.

       The Newspaper cross-appealed and asserted six errors: 6

       1. Whether the trial court erred in failing to enter judgment in
          [the Newspaper’s] favor because [Dr. Menkowitz] failed to
          meet his constitutional burden of proving [the Newspaper’s]
          news report on a matter of public concern contained a material
          falsehood[?]

       2. Whether the trial court committed reversible error by failing to
          instruct the jury that [Dr. Menkowitz] was obligated to prove
          the challenged news report was materially false, and [the
          Newspaper] could not be found liable if the report was
          substantially true[?]

       3. Whether the trial court committed reversible error by not
          admitting into evidence [the] minutes of a Board of Directors’
          meeting that documented the basis for [Dr. Menkowitz]’s
          suspension, because those minutes established the truth of the
          challenged article[?]

       4. Whether the trial court committed reversible error by failing to
          instruct the jury on which statement was at issue, or even
          identifying which of the three publications in the record was in
          dispute[?]

       5. Whether the trial court committed reversible error by
          instructing the jury to draw an adverse inference from the
          absence of certain evidence without any showing by [Dr.


____________________________________________


6   The Newspaper presents a seventh issue that was merely a
counterstatement of the issue asserted by Dr. Menkowitz: “Whether the trial
court correctly vacated the jury’s award of punitive damages where plaintiff
failed to prove by clear and convincing evidence that defendants published
any defamatory falsehood with actual malice.” Newspaper’s Brief at 5.

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J-E03003-16



          Menkowitz] that [the Newspaper] had a duty to preserve the
          evidence or that they did not preserve it in bad faith[?]

      6. Whether the trial court erred by failing to set aside or remit the
         compensatory damages award because [Dr. Menkowitz] failed
         to present evidence establishing the alleged defamatory
         implication caused any actual injury[?]

The Newspaper’s Brief at 4-5.

      Because the issues raised by the cross-appeal, if successful, would result

in either judgment in the Newspaper’s favor or a new trial, and render Dr.

Menkowitz’s punitive damages issue moot, we begin our analysis there. The

Newspaper contends first that Dr. Menkowitz failed to adduce evidence that

the defamatory statement was materially false. Additionally, the Newspaper

maintains that, with regard to the allegedly defamatory implications assigned

to that statement, the court erred as it failed to determine whether the words

were reasonably capable of those implications.          Since these questions

implicate the trial court’s denial of judgment n.o.v., the following informs our

review:

      There are two bases on which the court can grant judgment
      n.o.v.:

            [O]ne, the movant is entitled to judgment as a matter
            of law and/or two, the evidence is such that no two
            reasonable minds could disagree that the outcome
            should have been rendered in favor of the movant.
            With the first, the court reviews the record and
            concludes that even with all factual inferences decided
            adverse to the movant[,] the law nonetheless requires
            a verdict in his favor, whereas the second, the court
            reviews the evidentiary record and concludes that the



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            evidence was such that a verdict for the movant was
            beyond peradventure.

      Polett v. Public Communications, Inc., 83 A.3d 205, 212 (Pa.
      Super. 2013) [(en banc)]. In an appeal from the trial court’s
      decision to deny judgment n.o.v.,

            we must consider the evidence, together with all
            favorable inferences drawn therefrom, in a light most
            favorable to the verdict winner. Our standard of
            review when considering motions for a directed
            verdict and judgment notwithstanding the verdict are
            identical. We will reverse a trial court’s grant or denial
            of a judgment notwithstanding the verdict only when
            we find an abuse of discretion or an error of law that
            controlled the outcome of the case. Further, the
            standard of review for an appellate court is the same
            as that for a trial court.

      Id. at 211.

Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 258-59 (Pa. Super.

2015).

      Dr. Menkowitz is a private figure, the Newspaper is a media defendant,

and the issue is one of public concern. See Dougherty v. The Boyertown

Times, 547 A.2d 778 (Pa. Super. 1988) (speech concerning character of

chiropractor was matter of public concern); see also ToDay’s Housing v.

Times Shamrock Communications, Inc., 21 A.3d 1209, 1213 (Pa. Super.

2011) (activities of highly regulated industry like the housing industry are

matters of public concern). In such cases, the United States Supreme Court

has identified two competing societal interests: the “need to avoid self-

censorship by the media” and the “legitimate state interest underlying the law



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of libel [in] the compensation of individuals for the harm inflicted on them by

defamatory falsehood.” Gertz v. Robert Welch, 418 U.S. 323, 341 (1974);

see also Time, Inc. v. Firestone, 424 U.S. 448, 456 (1976).

       In a case involving similar parties, Philadelphia Newspapers, Inc. v.

Hepps, 475 U.S. 767, 778 (1986), the United States Supreme Court ruled

unconstitutional Pennsylvania’s common law presumption that defamatory

speech is false. It held further that, when a newspaper publishes speech of

public concern about a private-figure plaintiff, the “private-figure plaintiff must

bear the burden of showing that the speech at issue is false before recovering

damages for defamation from a media defendant.” Id. (emphasis added);

see also Krajewski v. Gusoff, 53 A.3d 793, 803 (Pa. Super. 2012)

(reinforcing that statements on matters of public concern by the media must

be provable as false before there can be liability); ToDay’s Housing, supra.7


____________________________________________


7 In addition, the Pennsylvania defamation statute, the Uniform Single
Publication Act, 42 Pa.C.S.A. § 8343(a), provides that the burden is on the
plaintiff to prove:

       (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.




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Section 8343(b)(1) of the Uniform Single Publication Act, 42 Pa.C.S.A. §

8343(b)(1), also provides that a defendant may avoid liability for defamation

if it shows “[t]he truth of the defamatory communication.” See also Dunlap

v. Phila. Newspapers, Inc., 448 A.2d 6, 15 (Pa. Super. 1982) (“The proof

of truth must go to the gist or sting of the defamation.”). In Masson v. New

Yorker Magazine, Inc., 501 U.S. 496, 516-17 (1991), the United States

Supreme Court held that substantial truth “would absolve 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.’” Id. at 516-17. The Masson Court explained, “the law does

not require perfect truth.” Id.; see also ToDay’s Housing, supra at 1215

(“The law does not require perfect truth.”). “Minor inaccuracies do not amount

to falsity so long as ‘the substance, the gist, the sting, of the libelous charge

be justified.’” Id. The Court added that “[t]he essence of that inquiry . . .

remains the same whether the burden rests upon plaintiff or defendant.” Id.

A “statement is not considered false unless it ‘would have a different effect on



____________________________________________


       (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.

42 Pa.C.S.A. § 8343.

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the mind of the reader from that which the pleaded truth would have

produced.’” Id. (quoting R. Sack, Libel, Slander, and Related Problems 138

(1980)).

      Furthermore, as this Court held in Krajewski, supra, even “a

statement of opinion relating to matters of public concern that does not

contain a provably false connotation will receive full constitutional protection.”

Id. (citing Hepps, supra).      “[W]hether a particular statement or writing

constitutes fact or opinion is a question of law for the court to determine in

the first instance.”   Elia v. Erie Ins. Exchange, 634 A.2d 657, 660 (Pa.

Super. 1993). Opinion is actionable only if it "implies the existence of [false]

undisclosed facts.” Dougherty, supra at 785.

      In addition to proving falsity, the plaintiff must prove fault in publishing

the communication. The Gertz Court concluded that private-figure plaintiffs

could recover compensatory damages against media defendants by proving

something less than actual malice. Gertz, supra at 348. So long as a state

law does not impose liability without fault, “the States may define for

themselves the appropriate standard of liability for a publisher or broadcaster

of defamatory falsehood injurious to a private individual.”      Id. at 347. In

Pennsylvania, that fault need not rise to the level of malice; negligence in the

publication will suffice. Specifically, in order to prove negligence, a plaintiff

must demonstrate publication with “want of reasonable care and diligence to




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ascertain the truth.” Am. Future Sys., Inc. v. Better Bus. Bureau, 923

A.2d 389, 400 (Pa. 2007).

      Finally, the private-figure plaintiff suing a media defendant for

defamation must prove actual damage to reputation causally linked to the

false defamatory communication to recover compensatory damages. Joseph

v. The Scranton Times, L.P., 129 A.3d 404 (Pa. 2015). Thus, in order to

recover under Pennsylvania law, a private-figure plaintiff must prove falsity,

at a minimum negligence in the publication, and actual damage to reputation

flowing from the defamatory communication.          Damages will be presumed

without proof of harm to reputation only if actual malice is shown. See Gertz,

418 U.S. at 349 (even a private-figure plaintiff is required to show actual

malice in order to recover either punitive damages or presumed compensatory

damages, i.e., compensatory damages without proof of harm to reputation);

accord Hepps, 475 U.S. at 773-774. Malice “can be proven by demonstrating

that the defendant subjectively acted with reckless disregard for the truth [by

entertaining] serious doubts as to the truth of his publication.” Castellani v.

Scranton Times, L.P., 124 A.3d 1229, 1234 (Pa. 2015) (quotation marks

omitted) (quoting Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899,

903 (Pa. 2007)).

      Preliminarily, we note the following. Although Dr. Menkowitz initially

identified both the statement in the April 18, 1997 article and the “Cheers and

Jeers” editorial as defamatory, he focused on the April 18th article at trial, and

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particularly, one sentence: “Dr. Menkowitz’s sudden absence from the hospital

has spawned rampant rumors of professional misconduct regarding his

treatment of an older female patient . . ..” Secondly, those same defamatory

words were the basis of Dr. Menkowitz’s defamation by implication claim.

Although an action for defamation by implication lies only when non-

defamatory, i.e., innocent words, become contextually defamatory, the

propriety of permitting the plaintiff to proceed on both theories was not

challenged below. Hence, that issue is not before us. 8 Third, the verdict slip

____________________________________________


8 Herein, the phrase “Dr. Menkowitz’s sudden absence from the hospital has
spawned rampant rumors of professional misconduct regarding his treatment
of an older female patient[,]” was explicitly libelous on its face and actionable
per se. Dr. Menkowitz also proffered several defamatory implications from
those same words.           In ToDay’s Housing v. Times Shamrock
Communications, Inc., 21 A.3d 1209 (Pa. Super. 2011), the plaintiff pled
both defamation per se and defamation by implication. However, unlike the
situation herein, the defamatory implications were not derived from the
defamatory per se statements but from innocent words in the article that were
not materially false. Therein, a modular housing retail company sued for
defamation after the local newspaper published a series of five articles
reporting homeowner complaints about the company’s failure to respond to
and repair deficiencies. The company alleged that its reputation was harmed
because the articles explicitly impugned its customer service. It argued, in
the alternative, that the articles falsely implied that it designed and
manufactured the defective modular homes. The trial court granted summary
judgment in favor of the newspaper. On appeal, this Court held the company
did not prove the falsity of the newspaper’s account of customer complaints.
We found that the evidence in the record was not “even remotely capable of
supporting a finding that the pertinent articles were false.” Id. at 1214.

In the alternative, the company argued that the articles as a whole, while not
materially false, falsely implied that it manufactured the defective modular
homes. We concluded that the articles could not reasonably be construed as



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made no distinction between the per se defamatory statement and the

allegedly defamatory innuendos. Thus, we are unable to discern whether the

jury believed the defamatory statement in the April 18, 1997 article was

facially false, the implications were false, or both. The jury was simply asked:

       1. Did  Defendants    negligently   publish    a       defamatory
          communication about Elliot Menkowitz, M.D.?

       2. Was the defamatory communication false either because it
          contained untrue or incomplete statement of fact or because
          its implication was untrue?

N.T. Jury Trial Vol. V, 3/20/14, at 151-52. It is against this backdrop that we

apply the applicable legal principles to the facts herein.

       The April 18, 1997 article reported that Dr. Menkowitz’s staff privileges

at PMMC had been suspended and that “his sudden absence from the hospital

had spawned rampant rumors of professional misconduct regarding his

treatment of an older, female patient.” Dr. Menkowitz pled that this statement

was defamatory per se and false.

       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.”        Elia, supra at 704.    “A

communication is also defamatory if it ascribes to another conduct, character


____________________________________________


imparting such an implication. One of the articles identified the manufacturers
of the modular homes and another specifically stated that ToDay’s Housing
did not build the homes, but was responsible for the manufacturer’s warranty.
The claim for defamation by innuendo failed as a matter of law.

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or a condition that would adversely affect his fitness for the proper conduct of

his proper business, trade or profession.” Maier v. Maretti, 671 A.2d 701,

704 (Pa. Super. 1995); Restatement (Second) of Torts, § 573 (1977); see

also Mengel v. Reading Eagle Co., 88 A. 660, 661 (Pa. 1913) (“Written or

printed words injurious to one in his business, calling, trade or profession are

libelous”). Since the published statement was of the type that would tend to

adversely affect Dr. Menkowitz’s fitness for his profession, we agree that it

was defamatory per se.

      However, not all defamatory publications subject the publisher to

liability. Where, as here, an issue of public interest is involved, even a private-

figure plaintiff must prove that the statements were false, negligently or

maliciously published, and, absent proof of actual malice, that the false

defamatory communications caused damage to his reputation.               Joseph,

supra. The Newspaper contends that, in order to recover even compensatory

damages, Dr. Menkowitz was required to show that the statement was

materially false, i.e., that it “would have a different effect on the mind of the

reader from that which the pleaded truth would have produced.” Air Wis.

Airlines Corp. v. Hoeper, 134 S.Ct. 852, 861 (2014) (citation omitted).

      Dr. Menkowitz conceded the truth of the Newspaper’s representation

that his staff privileges at PMMC were suspended. He maintained, however,

that the statement that his “sudden absence from the hospital has spawned

rampant rumors” was defamatory and false. Dr. Menkowitz denied that there

                                      - 19 -
J-E03003-16



were rumors; his wife said she did not personally hear any rumors.          Dr.

Menkowitz’s journalism expert, Thomas Eveslage, Ph.D, opined that, “rampant

rumors of professional misconduct is a false statement” because “I did not see

any evidence that it was true.”    N.T. Jury Vol. III, 3/18/14, at 423.     Dr.

Eveslage thus testified in derogation of the constitutional requirement that a

plaintiff, rather than the media defendant, has the burden to prove the falsity

of a statement.

      We find first that the report of “rampant rumors” did not carry the gist

of the libelous charge and was not actionable as defamation as a matter of

law. The substance of the alleged rumors was the proper focus of the alleged

defamation.   Moreover, even if the “rampant rumors” language could be

viewed as libelous, the record substantiates the truth of that representation.

Dr. Pawlowski, one of the physicians interviewed by Mr. Engquist regarding

Dr. Menkowitz’s suspension, was quoted in the news article as stating that,

although he was unaware of the reasons for the suspension, “You hear

rumors.” Pottstown Mercury Article, April 18, 1997. Dr. Menkowitz offered

no evidence that the Newspaper falsified or fabricated Dr. Pawlowski’s

statement. Dr. Menkowitz’s own witness, Attorney Jeffrey Krawitz, testified

that there were “rumors flying all over” about Dr. Menkowitz’s suspension.

N.T. Jury Trial Vol. I, 3/14/14, at 47.      Mr. Engquist’s confidential source

reported such rumors, and Mr. Engquist verified that members of the public

telephoned the Newspaper positing why Dr. Menkowitz was suspended.

                                    - 20 -
J-E03003-16



Hence, even if the “rampant rumors” statement had been actionable, Dr.

Menkowitz did not establish that it was false.

       Dr. Menkowitz also pled that the statement that his suspension involved

“professional misconduct regarding his treatment of an older, female patient”

was false. These words were the essence of his defamation claim, and under

Hepps, supra, it was Dr. Menkowitz’s burden to prove the falsity of that

statement.9 However, Dr. Menkowitz testified that he had “no knowledge”

why he was suspended or whether his suspension was related to an incident

involving a 79-year-old female patient A.D.10 in the Transitional Care Unit

(“TCU”) on March 16, 1997. See N.T. Jury Trial Vol. III, 3/17/14, at 162.

Although he confirmed he visited A.D. in the TCU on that date, N.T. Jury Trial

Vol. I, 3/14/14, at 68, he had “absolutely no recollection” of the interaction

between him and the female patient. N.T. Jury Trial Vol. II, 3/17/14, at 268,

276.    As the Newspaper correctly points out, a lack of recollection or

knowledge does not constitute evidence of falsity. ToDay’s Housing, supra

at 1214.



____________________________________________


9Dr. Menkowitz also testified that he had no knowledge of the truth or falsity
of representations that there were three lawsuits pending against him, two of
which were wrongful death actions, or whether the Commonwealth had taken
any action against his license. N.T. Jury Trial Vol II, 3/17/14, at 165-168.
Furthermore, he offered no proof that the representation was false.

10 Although the patients were identified in the certified record, we use initials
to protect their privacy.

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      Dr. Menkowitz argues on appeal that he was suspended because of

PMMC’s determination that his disruptive behavior and verbal harassment of

co-workers continued in violation of the ground rules set forth in a 1996

caution letter rather than any misconduct in his professional treatment of an

older, female patient. In support thereof, he points to the May 25, 1997 letter

advising him that he was suspended for six months because his conduct

“poses an immediate threat to the health and welfare of patients.” N.T. Jury

Trial Vol. III, 3/18/14, at 531. The letter recounted the issuance of the 1996

warning letter and alluded generally to his continued disruptive and

unacceptable conduct. Dr. Menkowitz argued that the Newspaper’s account

that he was suspended due to professional misconduct involving a female

patient was false because the suspension letter did not specifically mention

such an incident as the basis for the action.

      The caution and suspension letters simply did not refute the

Newspaper’s account.     Furthermore, the Newspaper introduced substantial

evidence that the statement was true.         Dr. Buckley confirmed that staff

reported that Dr. Menkowitz verbally intimidated a patient in the TCU. N.T.

Jury Trial Vol. II, 3/17/14, at 134. Clayton W. Chang, M.D., who was the

Medical Director of the TCU in 1997, testified regarding an incident in that unit

involving Dr. Menkowitz on March 16, 1997, just days before the suspension.

Dr. Chang was conducting his rounds when Registered Nurse Kathy Koresko

approached him. After a conversation with her, Dr. Chang sought out and

                                     - 22 -
J-E03003-16



spoke to two patients in the TCU, one a female, and the other a male. He

described the woman as “upset, agitated, confused, and close to tears.” N.T.

Jury Trial Vol. IV, 3/19/14, at 694. The man “was confused, agitated, he was

angry.” Id. at 696. Dr. Chang met with each of the patients and prepared

an incident report addressed to his superior. He was subsequently directed

to obtain a statement from Dr. Menkowitz regarding the incident, but Dr.

Menkowitz refused to sign anything. Even Dr. Menkowitz’s journalism expert,

Mr. Eveslage, conceded that the April 18, 1997 article was factually true. N.T.

Jury Trial Vol III, 3/18/14, at 580-81; 591-92. Dr. Menkowitz did not meet

his burden of proving the falsity of the defamatory statement under Hepps

and Dougherty and thus, there can be no liability premised on a defamation

per se theory as a matter of law.

      However, in addition to arguing that the statement in the article that Dr.

Menkowitz’s suspension was prompted by “professional misconduct involving

the treatment of an older, female patient” was defamatory per se and false,

Dr. Menkowitz argued that those same words were capable of defamatory

implications that were also false. We agree.

      Defamation by implication is an acknowledgement that, in some

instances, innocent words, i.e., words not defamatory on their face, may

create a defamatory innuendo due to the context in which the statements are

issued. Innuendo is the insinuation or implication that arises from the literal

language used in a statement or set of comments. Such words are actionable

                                    - 23 -
J-E03003-16



as defamation where the innuendo is both defamatory and false.              See

Dunlap, supra at 15 (recognizing that “the literal accuracy of separate

statements will not render a communication ‘true’ where . . . the implication

of the communication as a whole was false.”). Even where innocent words

are literally true, if, when viewed in toto, they create a false implication, the

speaker may be liable for creating a defamatory implication.

      The Newspaper contends that the trial court applied the wrong legal

standard when it submitted the defamation by implication claim to the jury.

It argues that the trial court incorrectly viewed the issue as one of sufficiency

of the evidence and found that the statement could be interpreted as

defamatory based upon the testimony of Dr. Menkowitz, his wife and son, and

Attorney Krawitz.   The proper question, according to the Newspaper, was

whether the various innuendos were reasonable and justified from the

language used, an inquiry that the Newspaper urges us to answer in the

negative.

      The legal test to be applied to determine whether a statement is

defamatory by implication is whether the challenged language can “fairly and

reasonably be construed” to imply the defamatory meaning alleged by a

plaintiff. Sarkees v. Warner-West Corp., 37 A.2d 544, 546 (Pa. 1944).

The “innuendo must be warranted, justified and supported by the publication.”

Livingston v. Murray, 612 A.2d 443, 449 (Pa.Super. 1992) (quoting

Thomas Merton Center v. Rockwell International Corp., 442 A.2d 213,

                                     - 24 -
J-E03003-16



217 (Pa. 1981)).       A publication however, cannot be made libelous “by

innuendo which puts an unfair and forced construction on the interpretation

of the publication.” Bogash v. Elkins, 176 A.2d 677, 679 (Pa. 1962) (quoting

Sarkees, supra at 546).       In other words, innuendo cannot be “used to

introduce new matter, or to enlarge the natural meaning of the words, and

thereby give to the language a construction which it will not bear.” Sarkees,

supra at 546. “If the words are not susceptible of the meaning ascribed to

them by the plaintiff and do not sustain the innuendo, the case should not be

sent to a jury.” Id.

      To determine whether a publication is capable of a defamatory meaning

“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.” Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. 1997) (citations

omitted). When considering defamation by implication, we have stated the

following:

      The purpose of an innuendo, as is well understood, is to define the
      defamatory meaning which the plaintiff attaches to the words; to
      show how they come to have that meaning and how they relate
      to the plaintiff. But it cannot be used to introduce new matter, or
      to enlarge the natural meaning of the words, and thereby give to
      the language a construction which it will not bear[.] It is the duty
      of the trial court in all cases to determine whether the language
      used in the objectionable article could fairly and reasonably be
      construed to have the meaning imputed in the innuendo. If the
      words are not susceptible of the meaning ascribed to them by the
      plaintiff and do not sustain the innuendo, the case should not be
      sent to a jury[.]



                                     - 25 -
J-E03003-16




Livingston, 612 A.2d at 449 (first alteration in original) (quoting Sarkees,

37 A.2d at 546). “[E]ven where a plausible innocent interpretation of the

communication exists, if there is an alternative defamatory interpretation, it

is for the jury to determine if the defamatory meaning was understood by the

recipient.”   Pelagatti v. Cohen, 536 A.2d 1337, 1345 (Pa. Super. 1987)

(citing Gordon v. Lancaster Osteopathic Hosp. Ass’n, Inc., 489 A.2d

1364, 1368 (Pa. Super. 1985)), appeal denied, 548 A.2d 256 (Pa. 1988).

“[T]he literal accuracy of separate statements will not render a communication

‘true’ where, as here, the implication of the communication as a whole was

false.”   Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6, 15 (Pa.

Super. 1982). (citations omitted). A publisher may be liable

      for the implications of what he has said or written, not merely the
      specific literal statements made. To say, for example, that a man
      and a woman married, but not to each other, spent a night
      together in a hotel room, will be interpreted as an assertion of the
      pair engaged in sexual activities, because the average reader will
      assume that “they sayeth not a pater noster there.”
Dunlap 448 A.2d at 15 (citation omitted) (emphasis in original). However,

      The literal “truth” of a publication need not be established, only
      that the statement is “substantially true.” The proof of “truth”
      must go to the “gist” or “sting” of the defamation. The test is
      “whether the [alleged] libel as published would have a different
      effect on the mind of the reader from that which the completed
      truth would have produced.
Id. (citing Sack, Libel, Slander, and Related Problems, 50-51, 137-138

(1980)) (footnotes omitted) (emphasis in original).




                                     - 26 -
J-E03003-16



       Dr. Menkowitz, his wife, son, and Attorney Krawitz assigned several

libelous innuendos to the defamatory per se words “professional misconduct

in the treatment of an older, female patient.” Mrs. Menkowitz testified that

one could believe that Dr. Menkowitz had been accused of sexual misconduct,

although she did not state that she believed it. Similarly, the couple’s son

testified that the words could mean sexual misconduct or medical malpractice,

but again, did not testify that he personally believed either implication.

Attorney Jeffrey Krawitz testified that he believed Dr. Menkowitz was indicted

for sexual misconduct, although he could not link that belief to the language

in the article in question.11

       The operative paragraph in the Newspaper’s article upon which the

defamation by implication claim is premised reads:

       Dr. Menkowitz’s sudden absence from the hospital has spawned
       rampant rumors of professional misconduct regarding his
       treatment of an older female patient. Yet hospital spokesperson
       Deborah L. Bennis has declined numerous requests from The
       Mercury for comment.

A jury reading this passage as a whole could find that the passage constitutes

defamation by implication. The passage speaks about the doctor’s “sudden


____________________________________________


11 Although Attorney Krawitz testified that he read an article discussing Dr.
Menkowitz’s professional misconduct with respect to his treatment of an
elderly female patient, he was unable to link his impression that it was sexual
abuse to the article under scrutiny. He vaguely stated that he “obtained or
read from multiple publications articles about Dr. Menkowitz.” N.T. Jury Trial
Vol. III, 3/18/14, at 255.


                                          - 27 -
J-E03003-16



absence” from the hospital that has spawned “rampant rumors” of

“professional misconduct” regarding his treatment of an older “female”

patient and that the hospital spokesperson remains mute when asked for

comment. It cannot be said as a matter of law that the cumulative effect of

this passage may not suggest that Dr. Menkowitz engaged in improper sexual

or physical conduct with an older female patient. The reference to the doctor’s

sudden absence suggests some immediate urgency as if to suggest he is

fleeing. People sometimes flee when they have done something terribly wrong

or have committed a crime. The mention of “rampant rumors” can certainly

suggest something salacious in the untold details of this report. Professional

misconduct may certainly suggest many types of misbehavior, including

physical or sexual, to a layperson, and certainly at least that and more to

others in the medical profession. All of this of course is tied to the treatment

of a female patient. One may reasonably ask the purpose to be served by

referring to gender if nothing sexual is to be inferred. Thus, a jury was entitled

to consider whether this passage is defamatory by implication. “[E]ven where

a plausible innocent interpretation of the communication exists, if there is an

alternative defamatory interpretation, it is for the jury to determine if the

defamatory meaning was understood by the recipient.” Pelagatti, 536 A.2d

at 1345 (citations omitted).




                                     - 28 -
J-E03003-16



        Further, the phrase “professional misconduct” could implicate physical

contact or criminal activity. The Medical Practice Act of 198512 provides that

the State Board of Medicine (“State Board”) has the authority to discipline a

board-regulated practitioner found guilty of immoral or unprofessional

conduct. Regulations promulgated by the State Board provide, inter alia,

that sexual exploitation by a board-regulated practitioner of a current

patient constitutes unprofessional conduct.            49 Pa. Code § 16.110(a).

“Sexual Exploitation” in turn is defined as “[a]ny sexual behavior that uses

trust, knowledge, emotions or influence derived from the professional

relationship.” 49 Pa. Code § 16.1. “Sexual Behavior” is defined as “[a]ny

sexual conduct which is non-diagnostic and non-therapeutic.” Id.

        This is not an instance wherein a plaintiff is attempting to use innuendo

to introduce new matter, or to enlarge the natural meaning of words to sustain

his claim for defamation by implication.           See Sarkees, 37 A.2d at 546.

Instead, the implications that may be deemed defamatory are derived from

the meanings ascribed to the language used and the manner in which the

language is used when looking at the statement as a whole. See Dunlap,

448 A.2d at 14-15.          The passage specifically refers to Dr. Menkowitz’s

professional misconduct with regard to his treatment of an older female

patient.    The suggestion of sexual or physical misconduct may be inferred


____________________________________________


12   Act of December 20, 1985, P.L. 457, 63 P.S. §422.1, et seq.

                                          - 29 -
J-E03003-16



from the allegation of professional misconduct.              This innuendo does not

enlarge the natural meaning of these terms. Rather, the innuendo may be

derived from the ordinary meaning of the language used. Thus, we conclude

the language used by the Newspaper could fairly and reasonably be construed

by implication in a defamatory manner. Therefore, the trial court did not err

when it submitted the case to the jury on a defamation by implication theory

and denied the Newspaper’s motion for judgment n.o.v.13

       Our conclusion that the challenged statements were capable of

defamation by implication also is supported by and aligns with other cases.

In Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6 (Pa. Super.

1982), the Philadelphia Inquirer ran a front page article with a large banner

entitled “Wide Police Corruption Revealed” and two smaller headlines side-by-

side stating “Patrol Outside, Gambling Inside” and “Hidden Cameras Confirm

Reports of Payoff System.”         Id. at 8.       Under the first of the two smaller


____________________________________________


13 In his brief, Dr. Menkowitz claims that he was not required to prove material
falsity in a defamation by implication claim. This claim fails. In Dunlap v.
Philadelphia Newspapers, Inc., 448 A.2d 6, 14 (Pa. Super. 1982), we held
that it was the plaintiff’s burden to prove the falsity of the article claimed to
be defamatory by implication. We further held “that the literal accuracy of
separate statements will not render a communication ‘true’ where … the
implication of the communication as a whole was false.” Id. at 15; see also,
Philadelphia Newspaper v. Hepps, 475 U.S. 767, 776 (1984)(the common
law’s rule on falsity – that the defendant must bear the burden of proving
truth – must similarly fall here to a constitutional requirement that the plaintiff
bear the burden of showing falsity, as well as fault, before recovering
damages.)


                                          - 30 -
J-E03003-16



headlines were two large photographs, the larger of which “shows a man

placing his hand inside a police car marked ‘17B.’        The caption to this

photograph reads ‘Sergeant’s Car 17B Stops Outside Known Gambling

Location.’” Id. The article further elaborated by explaining that a “man, who

appeared to be in his late 50s or early 60s, walked out into the street, leaned

on the driver’s side, and reached into the squad car through an open window.”

Id. When the Newspaper called the police station, the paper was told Sgt.

Samuel Dunlap occupied the car. Id. When asked, Dunlap indicated “more

than likely” he was driving the car that day and that he knew the man,

otherwise known as the town drunk. Id. The question presented was whether

those who read it could understand the article as defamatory. This Court

answered affirmatively concluding that a reasonable person who read the

article could have construed it to mean that Sgt. Dunlap was in car 17B and

receiving a bribe or pay off. Id. at 10. The paper attempted to defend arguing

that “the article reported only the undisputed and true facts.”     Id. at 11

(citation omitted). We concluded that when taken as a whole, the article,

headline, and photographs could give rise to a false inference drawn from true

facts. Id. at 15. We also concluded that “‘true facts’ that in context imply a

falsehood are, in an action for defamation not ‘true’” and that “the literal

accuracy of separate statements will not render a communication ‘true’ where,

as here, the implication as a whole was false.” Id. at 448 A.2d 15 (citation

omitted). As in Dunlap, the literal accuracy of the statements here regarding

                                    - 31 -
J-E03003-16



Dr. Menkowitz may be true, but the implication that he may have physically

or sexually abused an older female patient also may reasonably be suggested

by innuendo.

      In Mzamane v. Winfrey, 693 F. Supp.2d 442 (E.D. Pa. 2010), the

district court, applying Pennsylvania law, found that the statements there

could be defamatory by implication. The plaintiff brought an action for

defamation against Oprah Winfrey “stemming from comments made by

[Winfrey] regarding plaintiff’s performance as headmistress of” the girls’

school open and run by a foundation created by Winfrey in South Africa. Id.

at 461. Winfrey was alleged to state in a meeting and at a press conference

that “any person that caused harm to any [of the students] at the school will

no longer be allowed to work at the school.” Id. at 480. She continued to

relate that

      thus far, we have removed all of the dorm parents. I’ve spoken
      to [plaintiff] and I said to [plaintiff] that I don’t know what she
      knows because the investigation is continuing. I don’t know what
      she knows, or knew, or didn’t know, but that I have lost
      confidence in her ability to run this school. And therefore, she will
      not be returning to this school.
Id. (some capitalization omitted). The court held that the statements were

capable of defamatory meaning, since

      [t]he average listener could interpret Winfrey’s statement that she
      has “lost confidence” in plaintiff’s abilities, in conjunction with the
      preceding statement that “any person that caused harm” to the
      students would not be returning to [the school], to mean that
      plaintiff was not being retained due to the fact that she played
      some role in the “harm” caused to the students.


                                      - 32 -
J-E03003-16



Id. at 481 (some capitalization omitted).

      Winfrey’s statement that she is uncertain what plaintiff ‘knows, or
      knew, or didn’t know’ does not negate the implication that plaintiff
      was aware of the misconduct by the dorm parents.               The
      implication that plaintiff was aware of abuse by the dorm parents
      and did not react accordingly is capable of defamatory meaning
      as it ascribes conduct which would render her unfit for her
      profession as an educator.
Id. (some capitalization omitted). As in Winfrey, the same can be said here

where Dr. Menkowitz’s name was associated with an article alleging rampant

rumors of professional misconduct in his treatment of an older female patient.

      In Cheney v. Daily News L.P., 654 Fed. Appx. 578 (3rd Cir. 2016),

the court held that the plaintiff could be defamed by implication, where

      the Daily News published an article on its website entitled “Heated
      Sex Scandal Surrounds Philadelphia Fire Department: ‘It’s Bad
      Stuff.’” The text of the article described a sex scandal within the
      Philadelphia Fire Department.       According to the article, the
      investigation into the scandal “implicates dozens of city
      employees, including … firefighters,” and it was possible that such
      employees would be criminally charged.
Cheney, 654 Fed. Appx. at 580.      “The article consisted of two columns: the

left contained pictures, and the right contained the text of the article. In the

left column, a reader could toggle between two photographs. The first was the

silhouette of an unidentified firefighter outside a burning building[.]” Id. The

second, was a photograph “of Cheney captioned ‘Philadelphia firefighter

Francis Cheney holds a flag at a 9/11 ceremony in 2006.’ The photograph

focused on Cheney’s arm patch, but his face, though out of focus, is visible.”

Id. Cheney had no part in the scandal, but “was flooded with messages from



                                     - 33 -
J-E03003-16



his colleagues at the Philadelphia Fire Department, family, friends and

strangers.” Id. Cheney sued for defamation, and the question to be resolved

by the court was whether the article implicated Cheney as one of the

firefighters described in the scandal. In holding that the article was capable of

defamation, the court found that the article could suggest to a reasonable

person that Cheney was among the firefighters implicated in the scandal,

because the article described a scandal in which dozens of firefighters were

accused, but only identified Cheney in the caption next to the text of the

article. Id. Similar to Cheney, Dr. Menkowitz was associated with allegations

of professional misconduct regarding his treatment of an older female patient.

The possible association between the innuendo of sexual or physical

misconduct and Dr. Menkowitz cannot be mistaken.

      Our determination that the challenged statement may be found to be

defamatory by implication however, does not answer completely the issue of

whether the Newspaper was entitled to have judgment n.o.v. entered in its

favor. It must still be determined whether the record supports an award of

either compensatory or punitive damages, as proof of damages is an essential

part of establishing Dr. Menkowitz’s cause of action for defamation by

implication. Our Supreme Court’s decision in Joseph is most instructive in

this regard.   The Joseph Court reaffirmed that, in a private figure/public

concern defamation claim, “proof of actual injury to a private plaintiff’s

reputation is a prerequisite to the recovery of damages for other actual

                                     - 34 -
J-E03003-16



injuries, including mental and emotional injuries[,]” unless there is a showing

of actual malice. Joseph, supra at 429. Moreover, there must be proof by

a preponderance of the evidence that the plaintiff’s injury to reputation was

caused by the defamatory publication rather than the true statements in the

article.

      First, we agree with the trial court there was no evidence of actual

malice adduced herein that would support an award of punitive damages. Our

High Court held in Joseph that a private-figure plaintiff in a libel case involving

media defendants may only recover punitive damages upon satisfaction of the

actual malice test enunciated in New York Times Co. v. Sullivan, 376 U.S.

254 (1964). Actual malice must be shown by clear and convincing evidence,

and “whether the evidence in the record in a defamation case is sufficient to

support a finding of actual malice is a question of law.” Joseph, supra at

436 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990)). A

media defendant acts with actual malice if it publishes false statements “with

a high degree of awareness . . . of probable falsity,” or with “serious doubts

as to the truth of his publication.” Joseph, supra at 437. The trial court

correctly found that there was no clear and convincing evidence that the

Newspaper and Mr. Engquist acted with actual malice. Hepps, supra at 774.

      The following facts were largely uncontroverted.        As in Joseph, Mr.

Engquist relied heavily upon a trusted confidential source that had proven 100

percent reliable in the past.    N.T. Jury Trial Vol. IV, 3/19/14, at 737.      He

                                      - 35 -
J-E03003-16



attempted to get confirmation of the reason for the suspension from Debra

Bennis, the spokesperson for PMMC, but she would not comment.                        When

Dr. Menkowitz did not return his one-half dozen telephone calls, the reporter

went to the physician’s office in an effort, albeit unsuccessful, to speak to him.

Mr. Engquist obtained a list of all members of the MEC and called every person.

Two physicians who had previously served on the MEC agreed to speak to him

and he quoted their remarks in the article. Information regarding former and

pending   lawsuits   was      verified   with     reference   to   court   records    and

conversations with the attorneys involved.               Attorney Epstein spoke to

Mr. Engquist “off the record” and upon the condition that he did not publish

his remarks. There is no evidence that he shared with Mr. Engquist what he

believed to be the reason for the suspension, but only that a federal lawsuit

would be filed the next day. The record establishes that the very day the

federal lawsuit was filed, Mr. Engquist accurately and fairly reported

Dr. Menkowitz’s allegations against PMMC and the physician’s view of the

stated reasons for his suspension.         Finally, Dr. Menkowitz never sought a

retraction or a correction.

      Mr. Engquist testified. He professed to have no doubts about the truth

of the publication. He characterized the factual statements in the first article

appearing April 18, 1997, as true.                He chose the term “professional

misconduct” to connote that the incident occurred in the context of Dr.




                                         - 36 -
J-E03003-16



Menkowitz’s duties as a doctor. The reporter believed that was a fair choice

of words to describe Dr. Menkowitz’s conduct, and we agree.

      Although Professor Eveslage criticized the ethics of a journalist relying

solely on confidential sources, such a deviation from journalistic standards

was held not to constitute actual malice in Harte-Hanks Communications,

Inc. v. Connaughton, 491 U.S. 657, 666-92 (1989); see also Blackwell v.

Eskin, 916 A.2d 1123 (Pa.Super. 2007) (holding reliance upon one

confidential source without independent confirmation is not malice). Herein,

the Newspaper conducted an investigation, but even the failure to do so does

not support a finding of malice. Harte-Hanks Communications, supra. A

showing of malice requires “more than consideration of whether a reasonable

person would have published the statement without further investigation;

rather, it requires the plaintiff to present evidence sufficient ‘to permit the

conclusion that the defendant in fact entertained serious doubts as to the truth

of his publication.’”   Castellani, supra at 1241 (quoting St. Amant v.

Thompson, 390 U.S. 727, 731 (1968)). A newspaper’s decision to proceed

to publish the article, even if it did so in order to get the scoop on the story

and increase its profits, is not malice.      Harte-Hanks Communication,

supra.

      Herein, the trial court found, and the record supports, that “the proof

presented to show actual malice lacks the convincing clarity which the

constitutional standard demands, and hence that it could not constitutionally

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sustain a judgment for presumed or punitive damages in favor of [the

Newspaper] under the proper rule of law.” Trial Court Opinion, 9/19/14, at

59. Hence, the punitive damages award was properly vacated.14

       The absence of proof of malice also plays a role in Dr. Menkowitz’s claim

for compensatory damages. In the absence of proof of malice, Dr. Menkowitz

was required to prove an injury to reputation caused by the allegedly false

statements or innuendos, not the truthful reporting of the suspension, in order

to be entitled to compensatory damages. He failed to meet that burden. Not



____________________________________________


14 We note that the trial court did not instruct the jury that actual malice for
purposes of punitive damages must be proven by clear and convincing
evidence, not by a mere preponderance. The court told the jury:

       If you find that the Defendant or Defendants acted either
       intentionally or recklessly in publishing the false or defamatory
       communication, you may presume that the Plaintiff suffered both
       injury to his reputation and emotional distress, mental anguish,
       and humiliation that would result from such a communication.

N.T. Jury Trial Vol. V., 3/20/14, at 930. Later, the trial court reviewed the
verdict slip and the special interrogatory regarding punitive damages, which
asked: “Did Defendants act with knowledge that the published communication
was false or with reckless disregard of whether it was false or not?” Id. at
947. The court explained, “Again, for this particular proposition and question,
you evaluate the evidence, and you weigh the evidence and how the scales
relate to each other.” Id. This was a reference to its previous example of the
scales and the Plaintiff’s “burden of tipping the scale ever so slightly in
Plaintiff’s favor. If it is tipped ever so slightly in Plaintiff’s favor, then you
must vote for the Plaintiff on that question.” Id. at 943-944.

Although this instruction was erroneous, the Newspaper did not challenge it
below and the issue is not before us on appeal.


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J-E03003-16



one witness testified that his or her view of the physician changed as a result

of this communication. Furthermore, even Dr. Menkowitz conceded that the

harshness of suspension alone after twenty-five years would lead one to

believe that he had done something horrible. N.T. Jury Trial Vol. II, 3/17/14,

at 260.     He recounted a conversation with an elderly gentleman who

recognized his name “because he remembered I was the doctor who was

‘kicked out of the hospital.’”         Id. at 262.     Dr. Menkowitz’s expert also

acknowledged that the public disclosure of the suspension alone was

damaging to the physician’s reputation.            Mr. Eveslage conceded, “If I am

reading that a surgeon in a hospital in my town has been banned from seeing

patients at the hospital, that clearly is going to be damaging to his reputation.”

N.T. Jury Trial, Vol. III, 3/18/14, at 440.

       Dr. Menkowitz’s testimony that other hospitals with which he was

associated read the article and stopped using him is similarly deficient as it

failed to distinguish whether the alleged injury to reputation was caused by

the suspension or the article.15 Absent is the causal connection required by

Joseph between the alleged defamatory innuendos and the harm to


____________________________________________


15The Newspaper pled that Suburban General Hospital threatened to suspend
Dr. Menkowitz’s privileges at that facility in a letter dated two days before
publication of the April 18, 1997 article due to PMMC’s dissemination of the
news of his suspension. Defendants’ Answer and New Matter at ¶42.
Dr. Menkowitz admitted the truth of that allegation. Plaintiff’s Answer to
Defendants’ New Matter at ¶42. That admission was not placed before the
jury.

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J-E03003-16



reputation, as distinguished from the suspension itself. All of the foregoing

proof tends to confirm that any damage to Dr. Menkowitz’s reputation flowed

from the suspension itself, not any implication of sexual or physical abuse.

Thus, even if we were to find a basis for liability, the record contained

insufficient proof that the defamatory statement or innuendos, rather than the

fact of suspension, caused damage to reputation that would have supported

a compensatory damage award. Dr. Menkowitz’s failure to prove damages to

his reputation resulting from the defamatory innuendo is fatal to his claim.

The Newspaper accordingly, was entitled to have judgment n.o.v. entered in

its favor on this claim.

       For the above reasons, we vacate the judgment in favor of

Dr. Menkowitz, thus affirming the trial court’s decision to vacate his punitive

damages award, and remand for entry of judgment in favor of Peerless

Publications Inc. and Eric Engquist.16 Jurisdiction relinquished.

       President Judge Emeritus Bender, Judge Panella, Judge Lazarus, and

Judge Ransom join this opinion.

       Judge Bowes files a concurring opinion in which Judge Ott, Judge

Dubow, and Judge Moulton join.




____________________________________________


16In light of our conclusion that Dr. Menkowitz failed to sustain his burden of
proving damages and thus, his defamation claim, we need not consider the
Newspaper’s remaining issues presented for appeal.

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J-E03003-16



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/17




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