J-A22044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 F. EARL REED III                         :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellant            :
                                          :
                                          :
               v.                         :
                                          :
                                          :
 TONETTE PRAY                             :   No. 963 EDA 2018

               Appeal from the Order Entered March 14, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): 160400908


BEFORE:      BENDER, P.J.E., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                    FILED OCTOBER 22, 2018

      Appellant F. Earl Reed, III, (“Mr. Reed”) appeals from the final order

entered in the Philadelphia County Court of Common Pleas, which granted

Appellee Tonette Pray’s (“Ms. Pray”) motion for judgment on the pleadings

and disposed of all the claims in this case. After a careful review, we affirm.

      The relevant facts and procedural history are as follows: On April 9,

2016, Mr. Reed instituted this case via the filing of a civil complaint against

Ms. Pray. Therein, Mr. Reed averred that he has been a lifelong resident of

the Borough of Colwyn, Pennsylvania, and for many years, including 2007, he

was active in the community and served as the President of the Colwyn Fire

Department.     Moreover, as of 2007, Mr. Reed was a member of the Colwyn

Borough Council and served as chair of the Republican Campaign Committee

of Colwyn.


____________________________________
* Former Justice specially assigned to the Superior Court.
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      Mr. Reed asserted that Ms. Pray also resided in Colwyn Borough and

served on the Colwyn Borough Council. In the 2007 election, running against

Mr. Reed and other Republican members of the Colwyn Borough Council, Ms.

Pray and her supporters defeated Mr. Reed and his allies, and the Democrats

took control of the Colwyn Borough Council.

      One of the issues raised during the campaign was whether Mr. Reed had

“stolen” $100,000 from the Colwyn Sewer Fund during his time on the Council.

This accusation arose as a result of a transaction that occurred in 2006 or

2007 whereby the Colwyn Borough Council approved a short-term loan of

$100,000 from Colwyn’s Sewer Fund to the Colwyn Fire Company so that the

latter could take advantage of an early payment discount that would reduce

the purchase price of a new fire truck. The savings resulting from the early

payment discount was approximately $30,000; however, Ms. Pray and her

political allies, contending the transaction was improper, blamed Mr. Reed for

the removal of the money. After receiving complaints, the Delaware County

District Attorney’s Office commenced a lengthy investigation, at the conclusion

of which the Criminal Investigation Division declined to recommend

prosecution.

      After Mr. Reed was defeated in the 2007 election, Ms. Pray was elected

the President of the Colwyn Borough Council.      Mr. Reed averred Ms. Pray

examined the Borough’s financial records and discovered that the $100,000

had been repaid to the Colwyn Sewer Fund in full with interest. Specifically,


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Mr. Reed averred that he made arrangements to ensure the repayment was

made before he left the Council.      Subsequently, the Borough of Colwyn

encountered such financial problems that the Commonwealth of Pennsylvania

declared the Borough to be a financially distressed municipality.

      Mr. Reed relevantly averred the following occurred:

            14. During the term of her service on Colwyn Borough
      Council, [Ms.] Pray, in statements made outside of Borough
      Council meetings, repeatedly and publicly blamed Colwyn
      Borough’s financial difficulties on [Mr. Reed] for having “stolen”
      $100,000 from the Borough of Colwyn back in 2007. These
      statements include statements made within the past year as part
      of a continuing practice and continuing course of conduct
      extending back to 2012 or before.
            15. These repeated charges, and the publicity surrounding
      the Borough of Colwyn’s fiscal woes (which were blamed on [Mr.
      Reed]), have subjected [Mr. Reed] to repeated shame,
      humiliation, vilification, mockery and extensive negative attention
      in or from the news media, including but not limited to The
      Philadelphia Inquirer, The Daily Times of Delaware County, The
      News of Delaware County, Maria Schaffer (a reporter with The
      Philadelphia Inquirer), Dann Cuellar, Harry Hairston, Channel 6,
      and Channel 10.
                    (a) Incidents of this public shame, mockery and
            vilification, etc. have occurred within the past year,
            and these incidents extend back over the years.
                  (b) These incidents include, but are not limited
            to, being accused by neighbors of criminal conduct
            when [Mr. Reed] was walking his dog in the late
            afternoon.
                  (c) [Mr. Reed] has been informed, believes, and
            therefore avers that it was [Ms.] Pray who said to
            these neighbors that [Mr. Reed] had committed such
            criminal acts, thereby prompting the comments made
            to [Mr. Reed] by his neighbors.
            16. This course of conduct by [Ms.] Pray, consisting of
      repeatedly and publicly (outside of Borough Council meetings)
      accusing [Mr. Reed] of criminal conduct, including but not limited

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     to “stealing” $100,000 from the Borough of Colwyn, was
     undertaken in a spirit of “malice” because [Ms.] Pray either:
           (a) Knew that the accusation was false; or
           (b) Proceeded recklessly in making the accusation
           publicly when she either knew or should have known
           that the charge was false; or
           (c) Accused [Mr. Reed] of other criminal or wrongful
           conduct that was of no public interest, and that she
           did so for the purpose of humiliating [Mr. Reed] and
           running down his reputation, the better to shift blame
           for the Borough’s distressed fiscal condition.
           17. As a direct and proximate result of the foregoing, [Mr.
     Reed] suffered mental distress, humiliation and depression,
     possibly including suffering a mental breakdown.

Mr. Reed’s Complaint, filed 4/9/16, at 4-5, ¶¶ 14-17.

     Based on the aforementioned, Mr. Reed alleged a count of false light

invasion of privacy and a count of defamation against Ms. Pray. In further

developing his claims, Mr. Reed averred in his count for invasion of privacy

that he “experienced humiliation and vilification by neighbors and others for

alleged criminal acts, which as [Mr. Reed] is advised, believes and therefore

avers, [Ms.] Pray accused him of to such neighbors and others.” Id. at 6, ¶

20. Moreover, in his count for defamation, Mr. Reed averred “[o]utside of

Borough Council, [] [Ms.] Pray, consistently and over a period of years

(including one or more such statements made within the previous year) told

citizens and residents in Colwyn Borough that [Mr. Reed] had ‘stolen’

$100,000 or more from the Borough of Colwyn[.]” Id. at 7, ¶ 26. He also

asserted “[t]he statement(s) complained of herein were made in a campaign

mode, outside of Borough Council meetings[,]” and Ms. Pray made the

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statements “at least in part [to] shift[] from herself the public blame for the

financial distress the Borough of Colwyn descended into during her

administration and her term in office as President of [the] Council.” Id. at 7,

¶ 27, 8 ¶ 30. Finally, Mr. Reed also sought punitive damages due to Ms. Pray’s

“outrageous” conduct.

       On June 16, 2016, Ms. Pray filed preliminary objections to Mr. Reed’s

complaint averring improper venue, and on July 6, 2016, Mr. Reed filed an

answer. By order entered on August 30, 2016, the trial court dismissed Ms.

Pray’s preliminary objections.

       On September 7, 2016, Ms. Pray filed her answer to Mr. Reed’s

complaint with new matter and affirmative defenses,1 and on January 24,

2017, Mr. Reef filed a reply to the new matter.

       On January 25, 2018, Ms. Pray filed a motion for judgment on the

pleadings pursuant to Pennsylvania Rule of Civil Procedure 1034. Therein, Ms.

Pray relevantly averred Mr. Reed failed to set forth with sufficient specificity

his claims for defamation or invasion of privacy. She also averred he failed to

set forth sufficient facts to demonstrate that his causes of action for

defamation or invasion of privacy were commenced within the applicable



____________________________________________


1Therein, Ms. Pray averred, inter alia, that Mr. Reed’s complaint failed to state
a cause of action against Ms. Pray; Mr. Reed’s claims are barred by the
applicable statute of limitations; and Ms. Pray is entitled to official immunity
as the cause of action arose from the performance of her duties as a public
official.

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statute of limitations. Consequently, Ms. Pray requested the trial court enter

judgment in her favor and dismiss Mr. Reed’s complaint in its entirety with

prejudice.

       On February 14, 2018, Mr. Reed filed an answer to Ms. Pray’s motion

for judgment on the pleadings, and on February 20, 2018, Ms. Pray filed a

reply. By order entered on March 14, 2018, the trial court granted Ms. Pray’s

motion for judgment on the pleadings. Mr. Reed filed a timely notice of appeal

on March 20, 2018,2 and all Pa.R.A.P. 1925 requirements have been met.

       On appeal, Mr. Reed sets forth the following issues (verbatim):

       1. Whether Plaintiff’s Complaint, in Count I, pled his cause of
       action for defamation with adequate specificity for defamation
       claims when he complained of statements published in 2015 by
       Defendant which (i) accused Plaintiff of criminal conduct, of
       conduct which would tend to lower him in the estimation of those
       who heard the statement(s), or which would tend to deter them
       from associating with him; which defamatory statements (ii) were
       identified by the class of persons to whom such statements were
       published; and (iii) which defamatory statements were identified
       as to time, including the scheduled Borough Council meetings for
       Colwyn Borough during the year 2015 - and did such allegations
       aver a cause of action within the one-year statute of limitations
       for defamation?

       2. When Plaintiff's Complaint averred a "continuing" course of
       conduct, or campaign of defamation, by Defendant consisting of a
       series of defamatory statements, some published during the year
       prior to the filing of the Complaint, and some published during
       preceding years, did such averments state a proper cause of
       action under Pennsylvania law for defamation reaching back to the
       earliest published statements in that series when the publication
____________________________________________


2 Mr. Reed also filed a motion for reconsideration of the trial court’s March 14,
2018, order.      The trial court filed an order denying the motion for
reconsideration on April 2, 2018.

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J-A22044-18


       of such statements was averred to have started more than one
       year prior to the filing of the Complaint and to have continued into
       the year preceding the filing of the Complaint, and when the
       Complaint alleged statements which were not only false, but which
       tended to lower Plaintiff in the eyes of the Community or to
       discourage people from associating with him, or which falsely
       accused him of criminal conduct?

       3. Since the Motion for Judgment on the Pleadings addressed only
       the Defamation count, since the Complaint also included an
       Invasion of Privacy count, and since there are no special pleading
       requirements for Invasion of Privacy (as there are for
       Defamation), granting the Motion for Judgment on the Pleadings
       could at most have dismissed only the Defamation count, leaving
       the Invasion of Privacy count intact; hence, even if the Court
       determined to grant the Motion for Judgment on the Pleadings,
       was it not error to dismiss the entire case?

Mr. Reed’s Brief at 3-4 (footnotes and responses from trial court omitted).

       In his first issue, Mr. Reed avers that, in his complaint, he set forth the

elements of defamation with sufficient specificity and, more specifically, he

set forth a prima facie claim of defamation occurring within the applicable one-

year statute of limitations.3 Accordingly, he contends the trial court erred in

granting Ms. Pray’s motion for judgment on the pleadings on this basis.4

____________________________________________


3  42 Pa.C.S.A. § 5523(1) provides that “[t]he following actions and
proceedings must be commenced within one year: (1) An action for libel,
slander or invasion of privacy.”

4 In its Rule 1925(a) opinion, the trial court indicated that it granted Ms. Pray’s
motion for judgment on the pleading since the compliant failed to allege with
sufficient specificity “what was said,” “to whom it was said,” and “when it was
said.” Trial Court Opinion, filed 5/21/18, at 7. That is, as it applied to Mr.
Reed’s claim of defamation, the trial court concluded Mr. Reed failed to set
forth a prima facie case regarding (1) the defamatory nature of a specific
communication, (2) the publishing of a communication to an identified third



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       Our scope and standard of review of the granting of a motion for

judgment on the pleadings is well-settled.

             Our scope of review on an appeal from the grant of
       judgment on the pleadings is plenary. Entry of judgment on the
       pleadings is permitted under Pennsylvania Rule of Civil Procedure
       1034, which provides that “after the pleadings are closed, but
       within such time as not to unreasonably delay trial, any party may
       move for judgment on the pleadings.” Pa.R.C.P. 1034(a). A
       motion for judgment on the pleadings is similar to a demurrer. It
       may be entered when there are no disputed issues of fact and the
       moving party is entitled to judgment as a matter of law. In
       determining if there is a dispute as to facts, the court must confine
       its consideration to the pleadings and relevant documents. On
       appeal, we accept as true all well-pleaded allegations in the
       complaint.
             On appeal, our task is to determine whether the trial court’s
       ruling was based on a clear error of law or whether there were
       facts disclosed by the pleadings which should properly be tried
       before a jury or by a judge sitting without a jury.
              Neither party can be deemed to have admitted either
       conclusions of law or unjustified inferences. Moreover, in
       conducting its inquiry, the court should confine itself to the
       pleadings themselves and any documents or exhibits properly
       attached to them. It may not consider inadmissible evidence in
       determining a motion for judgment on the pleadings. Only when
       the moving party’s case is clear and free from doubt such that a
       trial would prove fruitless will an appellate court affirm a motion
       for judgment on the pleadings.

Rubin v. CBS Broadcasting, Inc., 170 A.3d 560, 564-65 (Pa.Super. 2017)

(quotations omitted).

       Initially, we note that, to state a cause of action for defamation, a

complaint must contain averments of fact which, if proven, would establish:

____________________________________________


person, and (3) the alleged defamatory communication was published within
one year so as to overcome the statute of limitations.

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      (1) The defamatory character of the communication.
      (2) Its publication by the defendant.
      (3) Its application to the plaintiff.
      (4) The understanding by the recipient of its defamatory meaning.
      (5) The understanding by the recipient of it as intended to be
      applied to the plaintiff.
      (6) Special harm resulting to the plaintiff from its publication.
      (7) Abuse of a conditionally privileged occasion.

Joseph v. Scranton Times L.P., 634 Pa. 35, 129 A.3d 404, 424 (2015)

(quoting 42 Pa.C.S.A. § 8343(a)).

      As it relates to the “publication” element for defamation, it is well-settled

that the alleged defamatory communication must be published to an identified

third person.   See Foster v. UPMC South Side Hosp., 2 A.3d 655, 666

(Pa.Super. 2010) (finding complaint “fatally vague” where it failed to identify

“who made the statements and to whom the statements were made”); Davis

v. Resources for Human Development, Inc., 770 A.2d 353, 358

(Pa.Super. 2001) (“It is clear that in Pennsylvania, the communication must

be expressed to a third party in order to be ‘published.’”); Jaindl v. Mohr,

637 A.2d 1353, 1358 (Pa.Super. 1994), affirmed, 541 Pa. 163, 661 A.2d 1362

(1995) (“A complaint for defamation must, on its face, identify exactly to

whom the allegedly defamatory statements were made.”); Moses v.

McWilliams, 549 A.2d 950, 960 (Pa.Super. 1988) (en banc) (“A complaint

for defamation must, on its face, identify specifically what allegedly




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defamatory statements were made, and to whom they were made. Failure to

do so will subject the complaint to dismissal for lack of publication.”).

      Here, assuming, arguendo, Mr. Reed sufficiently identified an alleged

defamatory statement in his complaint (i.e., that Ms. Pray stated Mr. Reed

stole $100,000 from the Borough of Colwyn back in 2007), we agree with the

trial court that Mr. Reed failed to aver sufficient facts as to whom the

defamatory statement was published.           At most, Mr. Reed alleges, in

conclusory fashion, that Ms. Pray made the statement “publicly,” “outside of

Borough Council meetings,” “to citizens and residents in Colwyn Borough,”

and “to neighbors.” Mr. Reed’s Complaint, filed 4/9/16, at 4-7, ¶¶ 14-16, 26.

Such vague allegations are insufficient to demonstrate publication of the

alleged defamatory statement under the circumstances of this case.          See

Foster, supra; Davis, supra; Jaindl, supra; Moses, supra.

      While Mr. Reed acknowledges that a complaint is defective if it merely

avers the alleged defamatory material was published to “third parties,” he

avers he presented a prima facie case of publication via his allegations, which

identified a category of persons and/or described the recipient and events in

a fashion that made them easily ascertainable. In this regard, he argues he

“identified the persons to whom such statements were published as being

citizens of Colwyn who were present at the times when [Ms. Pray] was

entering or exiting the said Borough Council meetings[.]” Mr. Reed’s Brief at

9, 14.   He argues this averment set forth to whom defamatory statements


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were published by class or category (i.e., citizens of Colwyn) and his reference

to “outside of Borough Council meetings” “within the past year” set forth the

events in a fashion that it could be readily ascertainable to whom Ms. Pray

made the defamatory statements. Mr. Reed’s Complaint, filed 4/9/16, at 4-

7, ¶¶ 14, 16, 26.

      In support of his claim, Mr. Reed cites to Smith v. Wagner, 588 A.2d

1308 (Pa.Super. 1991), wherein this Court held that a county official stated a

prima facie claim of defamation with sufficient specificity so as to avoid

preliminary objections in the nature of a demurrer. In that case, the plaintiff

made general averments in his complaint that a newspaper publisher and

printer had published defamatory statements about him and the newspaper

was distributed “among residents of Potter County who were familiar with

[the] plaintiff. . .and who were capable of understanding the references to

him.” Id. at 1311. However, in concluding the plaintiff sufficiently identified

the content of the statements, as well as to whom and when the statements

were published, we noted that, while the averments in the complaint were not

in and of themselves sufficiently specific, the complaint generally referred to

newspaper articles, which the plaintiff attached to the complaint. Id. Thus,

we held that, although the plaintiff’s “style of pleading [is] not to be

encouraged. . .when one wades through the sea of information” it was possible

to find a legally cognizable claim of defamation. Id. at 1310.




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       Mr. Reed also cites to Petula v. Mellody, 588 A.2d 103 (Pa.Cmwlth.

1991),5 wherein our sister court found the plaintiff set forth a prima facie claim

of defamation. In that case, the trial court granted a demurrer, in part, on

the basis the plaintiff did not set forth with sufficient specificity to whom the

alleged defamatory statements were published. There, the plaintiff averred

in his complaint that defamatory statements about him were made by the

defendants to “representatives and board members” of certain named school

districts (including St. Michael’s and Wyoming Valley West).           While the

Commonwealth Court noted it “would have been preferable to identify the

third parties by name, the identification of the third parties [was] not so vague

as to warrant sustaining a demurrer.” Petula, 588 A.2d at 417.

       In so ruling, the Commonwealth Court distinguished the pleading in

Petula from the pleading in a separate case, Raneri v. DePolo, 441 A.2d

1373 (Pa.Cmwlth. 1982), wherein the plaintiff alleged the defendant made

defamatory statements about him to “third parties.” In Raneri, the

Commonwealth Court held the complaint failed “to allege with particularity the

identity of the persons to whom the statements were made[,]” and thus, the




____________________________________________


5 “This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa.Super. 2010) (quotations
marks, quotation, and citation omitted).

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Court affirmed the trial court’s entry of preliminary objections in the nature of

a demurrer.

      In the case sub judice, although Mr. Reed referenced in his complaint

that Ms. Pray made statements of a defamatory nature “publicly,” “outside of

Borough Council meetings,” “to citizens and residents,” and “to neighbors,”

his complaint did not, as he now alleges in his appellate brief, suggest that

Ms. Pray made the statements specifically as she was entering or exiting

Borough Council meetings. Mr. Reed’s Complaint, filed 4/9/16, at 4-7, ¶¶ 14-

16, 26.

      In any event, assuming, arguendo, this is a fair inference from his

complaint, and we accept it as true under our standard of review, see Rubin,

supra, such a general averment does not set forth a prima face case of

defamation under the circumstances of this case.        Simply put, Mr. Reed’s

averment that Ms. Pray made statements of a defamatory nature as she was

entering or exiting Borough Council meetings at some unidentified time over

the past year is too vague to state a cause of action for defamation. We

conclude that the pleading in this case is more akin to that in Raneri, supra,

wherein the Commonwealth Court held the identification of “third parties” was

insufficient. See id. In fact, we note the complaint in the case sub judice

does not include any averments as to the specific dates of the subject Borough

Council meetings or that any citizens or residents were even within earshot of

Ms. Pray and/or heard Ms. Pray make the statements. Accordingly, we agree


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with the trial court that Mr. Reed’s defamation count fails to allege with

sufficient particularity the identity of persons to whom the statements were

made, which is an essential element of an actionable defamation claim.6 See

id.

       In his final claim,7 Mr. Reed contends the trial court erred in dismissing

his claim for invasion of privacy. Specifically, he argues:

             [Ms. Pray’s] Motion for Judgment on the Pleadings did not
       challenge Count I of the Complaint (the “Invasion of Privacy”
       Count); instead, [Ms. Pray’s] Motion concentrated exclusively on
       asserting that [Mr. Reed] did not plead his Count II defamation
       claims with requisite specificity as to the time, as to the content
       of what was said, or as to the persons to whom the defamatory
       statements were allegedly published.
                                        ***
           Since she raises no legal issues concerning Count I of the
       Complaint, sounding in “Invasion of Privacy,” even the dismissal


____________________________________________


6 We specifically note that Mr. Reed’s averments that Ms. Pray made
defamatory statements to unidentified neighbors, who then repeated the
statements to Mr. Reed as he was walking his dog in the late afternoon, is too
vague to set forth a prima facie case of defamation. See Joseph, supra;
Raneri, supra.       Further, his general averment that Ms. Pray’s “charges”
resulted in “publicity” and “negative attention in or from the news media” does
not set forth a prima facie case of defamation. Mr. Reed’s Complaint, filed
4/9/16, at ¶ 15. Unlike in Smith, Mr. Reed did not attach any articles or
provide further information as to the content of the communications or the
dates of the publication.

7 In light of our holding that Mr. Reed did not set forth a prima facie case of
publication for defamation, we find it unnecessary to address Mr. Reed’s
second claim; to wit, whether this Court should uphold a “continuing tort for
defamation” so that a plaintiff may be fairly compensated for harm suffered
prior to the one year statute of limitations.



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       of Count II of the Complaint does not remove Count I from
       consideration.

Mr. Reed’s Brief at 33-34.

       We have reviewed Ms. Pray’s motion for judgment on the pleadings, and

we agree with the trial court that Ms. Pray challenged in her motion the

specificity of Mr. Reed’s pleading as to both defamation and invasion of

privacy, as well as whether he met the applicable statute of limitations as to

both claims. Thus, Mr. Reed had notice that Ms. Pray was seeking judgment

on the pleadings as to both claims8 and, without further development of the

issue on appeal by Mr. Reed, we find no error.

       For all of the foregoing reasons, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/18




____________________________________________


8 In fact, in her motion, Ms. Pray specifically “request[ed] that th[e] [trial]
court enter judgment in her favor and against [Mr. Reed] and dismiss [Mr.
Reed’s] Complaint with prejudice.” Ms. Pray’s Motion for Judgment on the
Pleadings, filed 1/25/18.

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