J-A09042-19

                           2019 PA Super 166

 JOY M. FOX                            :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 STACEY SMITH, DREW J. BAUM,           :
 GINAMARIE ELLIS, THERESA              :
 AGOSTINELLI, STEVE COCOZZA,           :   No. 1938 EDA 2018
 ELLEN LUONGO, STEVEN LUONGO,          :
 MARYANN D. FURLONG, RICHARD B.        :
 KERNS, WILLIAM PASCALE,               :
 REPUBLICAN COMMITTEE OF               :
 CHESTER HEIGHTS AND COMMITTEE         :
 FOR THE FUTURE OF CHESTER             :
 HEIGHTS,                              :
                                       :
                                       :
 APPEAL OF: THERESA AGOSTINELLI        :
 AND DREW BAUM                         :

                Appeal from the Order Dated June 15, 2018
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): 01438 February Term, 2018

 JOY M. FOX                            :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 STACEY SMITH, DREW J. BAUM,           :
 GINAMARIE ELLIS, THERESA              :
 AGOSTINELLI, STEVE COCOZZA,           :   No. 1942 EDA 2018
 ELLEN LUONGO, STEVEN LUONGO,          :
 MARYANN D. FURLONG, RICHARD B.        :
 KERNS, WILLIAM PASCALE,               :
 REPUBLICAN COMMITTEE OF               :
 CHESTER HEIGHTS AND COMMITTEE         :
 FOR THE FUTURE OF CHESTER             :
 HEIGHTS,                              :
                                       :
                                       :
 APPEAL OF: STACEY SMITH               :
J-A09042-19



                Appeal from the Order Dated June 15, 2018
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): 01438 February Term, 2018

 JOY M. FOX                              :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 STACEY SMITH, DREW J. BAUM,             :
 GINAMARIE ELLIS, THERESA                :
 AGOSTINELLI, STEVE COCOZZA,             :   No. 1952 EDA 2018
 ELLEN LUONGO, STEVEN LUONGO,            :
 MARYANN D. FURLONG, RICHARD B.          :
 KERNS, WILLIAM PASCALE,                 :
 REPUBLICAN COMMITTEE OF                 :
 CHESTER HEIGHTS AND COMMITTEE           :
 FOR THE FUTURE OF CHESTER               :
 HEIGHTS,                                :
                                         :
                                         :
 APPEAL OF: WILLIAM PASCALE AND          :
 DREW BAUM                               :

                Appeal from the Order Dated June 15, 2018
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): 01438 February Term, 2018

 JOY M. FOX                              :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 STACEY SMITH, DREW J. BAUM,             :
 GINAMARIE ELLIS, THERESA                :
 AGOSTINELLI, STEVE COCOZZA,             :   No. 1968 EDA 2018
 ELLEN LUONGO, STEVEN LUONGO,            :
 MARYANN D. FURLONG, RICHARD B.          :
 KERNS, WILLIAM PASCALE,                 :
 REPUBLICAN COMMITTEE OF                 :
 CHESTER HEIGHTS AND COMMITTEE           :
                                         :


                                   -2-
J-A09042-19


    FOR THE FUTURE OF CHESTER                    :
    HEIGHTS,                                     :
                                                 :
                                                 :
    APPEAL OF: ELLEN LUONGO,                     :
    STEVEN LUONGO, REPUBLICAN                    :
    COMMITTEE OF CHESTER HEIGHTS,                :
    AND COMMITTEE FOR THE FUTURE                 :
    OF CHESTER HEIGHTS                           :
    (COLLECTIVELY, "MOVING                       :
    DEFENDANTS”)                                 :
                                                 :
                                                 :

                   Appeal from the Order Dated June 15, 2018
      In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): 01438 February Term, 2018


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI, J.

OPINION BY PELLEGRINI, J.:                                 FILED MAY 23, 2019

        The Appellants, Stacey Smith, Drew J. Baum, Ginamarie Ellis, Theresa

Agostinelli, Steve Cocozza, Ellen Luongo, Steven Luongo, Maryann D. Furlong,

Richard B. Kerns, William Pascale, the Republican Committee of Chester

Heights, and the Committee for the Future of Chester Heights, seek review of

the orders entered on June 15, 2018, in the Court of Common Pleas of the

First Judicial District overruling their preliminary objections to venue.     We

affirm.




____________________________________________


   Retired Senior Judge assigned to the Superior Court.

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                                      I.

      This defamation case stems from a 2017 mayoral campaign held in

Chester Heights, a borough of Delaware County. The Appellee, Joy Fox, ran

as the Democratic candidate against Stacey Smith, the Republican candidate.

Allegedly, Smith and the other Appellants posted false information about Fox

on a website they created called www.chfactcheck.com indicating that she had

been charged with check fraud in North Carolina in the 1990s. The website

contained links to several background checks which purported to document

the charges. The Appellants promoted the website to residents of Chester

Heights with online social media posts, local campaign flyers and billboards.

Smith won the election and became mayor of Chester Heights.

      In her complaint, Fox alleged that the check fraud claim was false and

asserted several causes of action against the Appellants, including civil

conspiracy, defamation and false light. She filed suit not in Delaware County

but rather in Philadelphia County. Fox averred that her claims were filed in a

proper forum because the Appellants’ flyers were read by mail processors in

Philadelphia County and the information which the Appellants published on

the above website was accessed by residents there, including a personal friend

of Fox (Kellie Clark), who understood the check fraud story to be damaging to

Fox’s reputation.

      The Appellants each filed preliminary objections asserting that venue

was improper in Philadelphia County. In overruling those objections, the trial


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J-A09042-19


court applied the rule set forth in Gaetano v. Sharon Herald Co., 231 A.2d

753 (Pa. 1967), a case involving a defamatory newspaper article. See Trial

Court Opinion, 8/30/18, at 4-5.     The Pennsylvania Supreme Court held in

Gaetano that a defamation claim may be filed in a county where the material

is disseminated to a third party who personally knows the plaintiff and

understands the material to be defamatory.

      The Appellants assert in their brief that the trial court erred in applying

Gaetano, which they claim is out-of-date and impracticable as to internet-

based defamation claims. The Appellants make two main sub-arguments in

support of a new venue rule: (a) Delaware County is the only proper forum

because it is where all the parties reside and where most of Fox’s reputational

harm occurred; and (b) forum should be limited to Delaware County because

the Appellants did not intend for their online postings to have an effect

anywhere else.

                                      II.

                                       A.

      This appeal concerns a purely procedural question of law as to whether

Fox filed suit in an appropriate forum. Specifically, the issue is one of venue,

which “relates to the right of a party to have the controversy brought and

heard in a particular judicial district.” Commonwealth v. Bethea, 828 A.2d

1066, 1074 (Pa. 2003). The venue of a court of common pleas is “generally

prescribed by rules” of the Pennsylvania Supreme Court.          Id. (citing 42


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J-A09042-19


Pa.C.S. § 931(c)). Pa.R.C.P. 1006 provides in pertinent part that “an action

against an individual may be brought in and only in a county . . . where a

transaction or occurrence took place out of which the cause of action arose or

in any other county authorized by law[.]” Pa.R.C.P. 1006(a)(1); see also

Pa.R.C.P. 2179(a)(4) (providing that “a personal action against a corporation

or similar entity may be brought in . . . a county where a transaction or

occurrence took place out of which the cause of action arose[.])”1

       The transaction or occurrence of a defamation action involves

“publication” of defamatory material. See Flaxman v. Burnett, 574 A.2d

1061, 1066 (Pa. Super. 1990) (“An essential element of a defamation action

is publication.”).2    In Gaetano, the Pennsylvania Supreme Court held that

venue is proper in a place of publication, which was defined as the forum

where a communication was read by a third party personally known to the

plaintiff, such as her “neighbors or associates,” causing harm to the plaintiff’s



____________________________________________


1 Although a plaintiff generally may decide the forum in which to file suit, the
issue of whether venue in a given county is proper is treated the same way as
a challenge to a court’s jurisdiction to hear the case. See Deyarmin v.
Consol. Rail Corp., 931 A.2d 1, 10 (Pa. Super. 2007) (citing Kring v. Univ.
of Pittsburgh, 829 A.2d 673, 676 (Pa. Super. 2003)).

2 The Gaetano Court explained that “[t]he most important function of an
action for defamation is to give the innocent and injured plaintiff a public
vindication of his good name. Its primary purpose is to restore his unjustly
tarnished reputation, and ‘reputation is the estimation in which one’s
character is held by his neighbors or associates.’” 231 A.2d at 755 (citing
Restatement, Torts § 577, comment b (1938)).


                                           -6-
J-A09042-19


reputation. 231 A.2d at 755. Further, for the material to cause the requisite

harm, the third party must understand it be defamatory. Id.

      The Gaetano Court applied that rule in holding that venue for the

plaintiff’s suit was proper in Allegheny County, where the plaintiff suffered

reputation harm, regardless of the fact that the defendants had printed the

subject newspapers in Mercer County. The Court explained that

      if one writes or prints a defamatory letter in Mercer County and
      mails it to an addressee in Allegheny County, there obviously is
      no publication of the libel until the letter is read in Allegheny
      County and (which is most important) understood as being
      defamatory of the plaintiff.

Id.

      Gaetano was decided in 1967. Since that time, no Pennsylvania court

has deviated from its venue rule for defamation cases. The central inquiry

has, therefore, remained whether the plaintiff suffered reputational harm in a

given county and not how easily a given medium can transmit the defamatory

material.   The parties in this case agree that if the Gaetano venue rule

applies, then the orders on review must stand. However, the parties differ on

whether Gaetano applies as to an internet defamation suit and this appears

to be an issue of first impression in Pennsylvania.




                                     -7-
J-A09042-19


                                               B.

       In the absence of Pennsylvania law regarding the precise issue at hand,

the federal courts’ approach to venue is instructive.3 Although several federal

courts have noted the difficulty in formulating a workable venue rule for

internet defamation claims, they tend to support Fox’s position that

Philadelphia County is a proper forum.

       For example, in Capital Corp. Merch. Banking v. Corp. Colocation,

Inc., 2008 WL 4058014, at *2 (M.D. Fla. Aug. 27, 2008), a plaintiff asserted

claims in Florida against Pennsylvania defendants due to material posted on a

website.     The court expressed concern that “the harm from an online

defamatory statement can occur in any place where the website . . . is

viewed[.]” Capital Corp., 2008 WL 4058014, at *2. Venue was nevertheless

held to be proper in Florida because the plaintiff had alleged “that the website

was accessed in this District, that it suffered harm to its reputation in this

District, and that it suffered an economic injury in this District.” Id. These

circumstances created a “substantial nexus” between the plaintiff’s chosen

forum of Florida and the acts originating in Pennsylvania which gave rise to

the defamation claim. Id.



____________________________________________


3 The decisions of federal courts other than the United States Supreme Court
are not binding but may be considered as persuasive authority.          See
generally Hall v. Pennsylvania Bd. of Prob. & Parole, 851 A.2d 859, 863
(Pa. 2004).


                                           -8-
J-A09042-19


      Crucially, under this framework, the plaintiff’s choice of forum is not

limited by her place of residence.       In fact, in a case involving internet

defamation, a court cited Capital Corp. in holding that venue is proper in any

forum where the plaintiff has suffered the requisite harm to her reputation:

      Nor is the Court persuaded by Defendants’ argument that venue
      should lie in the district in which publication occurred and Plaintiffs
      reside.    Defendants are correct in that, “in the context of
      defamation and other nonphysical torts, courts generally hold that
      venue under Section 1391 (b)(2) is proper in the district where
      the injured party resides and the defamatory statements were
      published.” Capital Corp., 2008 WL 4058014, at *3 (collecting
      cases). However, these cases do not address, much less
      rule out, the possibility of venue lying in another judicial
      district where the plaintiff does not reside, but
      nevertheless has suffered economic or reputational injury,
      and where publication has occurred.

      Indeed, the holdings in these cases appear to be consistent
      with the prevailing approach in the defamation context that
      “venue is proper in a district in which the allegedly
      defamatory statement was published, particularly if injury
      was suffered in the same district.” Kravitz v. Niezgoda,
      2012 WL 4321985, at *4 (E.D. Pa. Sept. 21, 2012).

Eakin v. Rosen, 2015 WL 8757062, at *6 (S.D. Ga. Dec. 11, 2015) (emphasis

added, some citations omitted) (overruling defendants’ objection to venue

where plaintiffs resided in the Middle District of Georgia but filed a defamation

suit in the Southern District of Georgia based in part on internet postings).

      Most recently, in Seidel v. Kirby, 296 F.Supp. 3d 745 (D. Md. 2017),

the court stressed that venue in internet defamation actions should not be

based solely on whether a third party in a particular forum has accessed

material understood to be defamatory toward a plaintiff:


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       This rule, that an act of defamation “occurs” where it is publicized
       such that it may harm a plaintiff's reputation, is of little help when
       the publication is effectively world-wide. It would seem that, in
       the context of defamation publicized over the Internet, such a rule
       would make venue proper in any district in the United States.

296 F.Supp. 3d at 753 (citations omitted).

       To reduce the number of possible venues for an internet defamation

suit, the Seidel court narrowly construed the federal venue statute, 28 U.S.C.

§ 1391. Part (a)(2) of that statute makes venue proper in a judicial district

only where a “substantial part” of the underlying conduct giving rise to the

claim occurred. Id. at 753-54. The Seidel court held that for the purposes

of part (a)(2), a “substantial part” of a defamation action occurs when a third

party “actually knows” the plaintiff, reads the defamatory material, and

understands it to be defamatory:

       The venue statute, however, does not authorize venue in any
       district where any events that gave rise to the action occurred,
       but rather where a substantial part of those actions occurred.
       Therefore, while it may not always be the case, the district in
       which a plaintiff resides is often going to be where the substantial
       part of the harmful publication occurred, i.e. where people are
       exposed to the material who may actually know the plaintiff or
       interact with him in a way that could be affected by the
       information.

Id. at 753 (emphases in original).4


____________________________________________


4 Although the plaintiffs in Seidel filed suit in the same forum where they
resided, the court cited favorably to Eakin’s conclusion that venue in that
case was “proper in a different district” than forum of the plaintiffs’ residence
because reputational harm occurred there. Seidel, 296 F.Supp. 3d at 753.



                                          - 10 -
J-A09042-19


       While couched in slightly different language, the above federal courts

have adopted a venue rule for internet defamation that mirrors the principles

of Gaetano. We follow the lead of those authorities in holding that a plaintiff

may file a defamation action in any county where an internet posting causes

the requisite harm to the plaintiff’s reputation. As outlined in Gaetano, this

harm occurs when an internet communication is read by a third party who the

plaintiff knows personally and who understands the communication to be

harmful to the plaintiff’s reputation.         See Gaetano, 231 A.2d at 755-56.

Since the county in which that third party lives is a place of publication, it is a

place where the plaintiff may file suit. Id.

       Under this standard, the Appellants’ objection to venue in Philadelphia

County was properly overruled.             Fox alleged that her friend resided in

Philadelphia County and read material on a website which had been posted by

the Appellants. Fox’s friend understood the material to be defamatory. This

reputational harm made the friend’s county of residence a place of publication

and a proper venue for Fox’s defamation claims.5




____________________________________________


The dispositive factor in both of those cases is that venue lays wherever the
reputational harm occurs, including but not limited to where the plaintiff lives.

5 We find no merit in Fox’s alternative basis for venue – that the Appellants’
campaign flyers were read by mail processors in Philadelphia County. Fox did
not allege that she personally knew the workers in the mail processing facility
so the flyers caused her no reputational harm for the purposes of venue.


                                          - 11 -
J-A09042-19


                                               C.

       Finally, we decline to limit venue to Delaware County based on the

Appellants’ stated intent to damage Fox’s reputation only in that lone forum.

The website in question was accessible to the general public. The Appellants

knew or should have known the scandalous information they posted online

(and advertised with campaign flyers and social media posts) would be read

by Fox’s neighbors or associates throughout the state. See Reed v. Brown,

166 A.3d 570, 576 (Pa. Cmwlth. 2017) (holding that venue was proper in

forum other than place of original publication where a defendant’s agent

republished the defamatory material, since “republication” was “authorized,

intended or reasonably expected.”).

       Fox therefore had the choice to file suit in Philadelphia County, where

she is alleged to have suffered reputational harm. If litigating in that forum

caused the Appellants any hardship or inconvenience, then their remedy was

to move to dismiss or transfer the case on those grounds.6

____________________________________________


6 “For the convenience of parties and witnesses the court upon petition of any
party may transfer an action to the appropriate court of any other county
where the action could originally have been brought.” Pa.R.C.P. 1006(d)(1).
“[A] petition to transfer venue should be granted only if the defendant
‘demonstrates, with detailed information on the record, that the plaintiff’s
chosen forum is oppressive or vexatious to the defendant.’” Bratic v.
Rubendall, 99 A.3d 1, 7 (Pa. 2014) (citing Cheeseman v. Lethal
Exterminator, Inc., 701 A.2d 156, 162 (Pa. 1997)). “Transfer on forum non
conveniens grounds is proper only if the defendant proves that the chosen
forum is oppressive to him.” Moody v. Lehigh Valley Hosp.-Cedar Crest,
179 A.3d 496, 508 (Pa. Super. 2018). Determining whether a forum is



                                          - 12 -
J-A09042-19


       Orders affirmed.

       Judge Kunselman joins the Opinion.

       Judge Murray files a concurring opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/19




____________________________________________


oppressive “requir[es] consideration of the totality of the circumstances. The
distance between the two forums, the disruption to the parties’ personal and
professional lives, are part of the equation, but no one factor is dispositive.”
Id. at 508 n.9.

                                          - 13 -
