J-A05034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 FJW INVESTMENT, INC., D/B/A BATH        :   IN THE SUPERIOR COURT OF
 FITTER OF PITTSBURGH                    :        PENNSYLVANIA
                                         :
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 1041 WDA 2018
 LUXURY BATH OF PITTSBURGH,              :
 INC., BARRY ERENRICH, KENNETH           :
 KAYSER, RICHARD GALLAGHER,              :
 BRYAN MYERS, MARK PINTEA, RB            :
 PRO, INC., D/B/A RE-BATH, JO ANN        :
 YOCHUM, AND CHRISTINE DUMM              :

               Appeal from the Order Entered June 28, 2018
     In the Court of Common Pleas of Allegheny County Civil Division at
                          No(s): GD 12-009789


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

CONCURRING STATEMENT BY SHOGAN, J.:                  FILED APRIL 23, 2019

      I join my esteemed colleagues in the Majority but write separately to

note the inherent tension in Pennsylvania jurisprudence between the need to

prove actual damages in defamation cases and the heightened protection

given to reputation pursuant to our state Constitution. See Pa. Const. art I,

§ 1 (“All men are born equally free and independent, and have certain inherent

and indefeasible rights, among which are those of enjoying and defending life

and liberty, of acquiring, possessing and protecting property and reputation,

and of pursuing their own happiness.”) (emphasis added); see also

American Future Systems, Inc. v. Better Business Bureau of Eastern
J-A05034-19


Pennsylvania, 923 A.2d 389, 395 (Pa. 2007) (“reputational interests occupy

an elevated position within our state Constitution’s system of safeguards”)

(footnote omitted).

      Consistent with this position, our Supreme Court has explained that

awards of presumed and punitive damages are not prohibited in all defamation

cases.

      As to presumed and punitive damages, although the [Gertz v.
      Robert Welch, Inc., 418 U.S. 323 (1974)] Court made it clear
      that the First Amendment prohibits awards of presumed and
      punitive damages for defamatory statements where private
      plaintiffs show less than actual malice, the Court left open the
      question of whether presumed or punitive damages are
      constitutional when the plaintiff proves actual malice in such
      cases.

Joseph v. Scranton Times, L.P., 129 A.3d 404, 430 (Pa. 2015).               The

Joseph Court concluded that:

      we . . . find no specific directive from the U.S. Supreme Court to
      cause us to abandon the long standing practice in this jurisdiction
      of allowing punitive, as well as presumed, damages in appropriate
      cases. Thus, . . . , we reject [the argument] to the contrary and
      permit private plaintiffs in libel cases involving media defendants
      to recover presumed and punitive damages upon their satisfaction
      of the [New York Times Co. v. Sullivan, 376 U.S. 254 (1964)]
      actual malice test.[ ]

Id. at 432.

      Of further elucidation is our Supreme Court’s comments regarding this

Court’s decision in Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 237

(Pa. Super. 1993), which the Majority relies upon in its statement of the law:

      To the extent the [defendants] and their Amici argue the Superior
      Court’s decision in Walker, supra establishes the controlling

                                     -2-
J-A05034-19


     precedent as to the availability of presumed damages upon a
     plaintiff’s showing of actual malice, we disagree. This Court is not
     bound by the Superior Court’s decisions.           Stone Crushed
     Partnership v. Kassab Archbold Jackson & O'Brien, 589 Pa.
     296, 306, 908 A.2d 875, 881 (2006). Moreover, while Walker
     suggested that a plaintiff in a defamation per se action must prove
     actual harm in order to recover compensatory damages, Walker
     left open the question of whether a plaintiff may recover for
     presumed damages upon a showing of actual malice.               See
     Franklin Prescriptions, Inc. [v. New York Times Co.], 424
     F.3d [336,] 342 [(3d Cir. 2005)](discussing Walker).

Joseph, 129 A.3d at 432 n.13. Accordingly, there may be defamation per se

actions where a plaintiff may recover presumed damages, and proof of actual

harm is not required. However, my review of the record reveals this is not

such a case.




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