J-A15028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OTTO SLOZER AND JOHN DONCHES                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellants

                       v.

PATRICK SLATTERY; WESLEY BARRETT;
CRAIG NEELY; CITIZENS FOR STRONG
COMMUNITIES; JENAE WOLFE
HOLZHAFER; INTERNET POSTER 1 A/K/A
“CARIBBEAN QUEEN” AND JOHN AND
JANE DOE 2-10

                            Appellees                 No. 2566 EDA 2014


                 Appeal from the Order Entered August 22, 2014
                 In the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2012 C 1603


BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                         FILED NOVEMBER 18, 2015

        Appellants, Otto Slozer and John Donches, plaintiffs in the underlying

defamation suit, appeal from the August 22, 2014 order granting the various

motions for summary judgment filed by Appellees, Patrick Slattery, Wesley

Barrett, Craig Neely, Citizens for Strong Communities (Citizens), and Jenae

Wolfe Holzhafer,1 the named defendants in the defamation suit, and

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
  Ms. Holtzhafer noted in her motion for summary judgment that her name
had been misspelled as “Holzhafer” throughout the proceedings. Because
the rest of the record retains the “Holzhafer” spelling, we have done the
same for the sake of consistency.
J-A15028-15


dismissing Appellants’ complaint with prejudice. After careful consideration,

we affirm.

     The trial court supplied the following summary of the factual and

procedural background in this case.

             [T]he relevant facts are as follows.

                   In the context of a local municipal election in
             the Borough of Emmaus in the fall of 2011, []
             Slattery -- through an organization he headed, []
             Citizens [] -- published a website entitled
             “Ottosback.com” in reference to [] Slozer. Slozer
             had previously served as an elected member of the
             Emmaus Borough Council in 1990-1999, including
             service in the office of Borough Council President for
             three of those years.          He subsequently ran
             unsuccessfully for Council in 2003.

                    After leaving office, Slozer has continued to be
             visibly    engaged      in    Emmaus     politics   and
             controversies. To that end, he has served on the
             board of directors of an activist group, entitled,
             “Concerned East Penn Taxpayers Association”
             (“CEPTA”), which, among other things, has publicly
             advocated against public spending and has hosted
             candidate debates, some of which Slozer himself has
             moderated. Additionally, Slozer regularly writes for
             a local newspaper entitled The Lehigh Valley
             Commentator, which received startup funding from
             CEPTA. In his own words, Slozer uses that forum “to
             get [his] point of view out,” and claims it has a
             circulation of 13,000. It also appears undisputed
             that Slozer’s local reputation has been acknowledged
             by a prominent weekly columnist in the Lehigh
             Valley’s largest commercial newspaper, The Morning
             Call, who has recognized Slozer as a member of the
             columnist’s informal Hall of Fame of “famous people
             from the Lehigh Valley,” in which Emmaus is located.

                   The aforementioned website, “Ottosback.com,”
             published materials indicating that two of the then-

                                      -2-
J-A15028-15


          current candidates for Emmaus Borough Council,
          including [] Donches, were affiliated with Slozer, and
          indicated that a vote for these persons would be
          tantamount to a vote for Slozer. In urging viewers
          not to vote for Donches and the other candidate, the
          website offered negative commentary about Donches
          and Slozer.        [Appellants] base the present
          defamation action upon the substance of several of
          those comments which, [Appellants] allege, accused
          Donches of being a thief by taking a DVD not
          belonging to him and stealing campaign signs,
          assaulting a man in a road rage incident, and
          suffering from mental illness.      [Appellants] also
          maintain that the website falsely accused Slozer of
          mental illness as well.

                 In April 2012, [Appellants] filed suit against,
          inter alia, [] Slattery[, Holzhafer,] and Citizens [] as
          well as several unidentified “John Doe” Defendants.
          Although the website was online from October 2011
          through [E]lection [D]ay in November 2011,
          [Appellants] did not name [] Neely and [] Barrett
          until the filing of a second amended complaint in July
          2013, well beyond the one-year period of limitation
          applicable to defamation actions, as provided in 42
          Pa.C.S. § 5523(1). Hence, [on May 16, 2014, and
          May     23,     2014,]    those   defendants    move[d
          respectively] for summary judgment on that basis.
          [] Holzhafer, on May 30, 2014,] move[d] for
          summary judgment on different grounds, arguing
          that merely posting a link on one’s website without
          substantive commentary will not constitute a
          publication of the allegedly defamatory material
          contained on the linked site.

                [On May 29, 2014,] [] Slattery and []Citizens
          [] move[d] for summary judgment for other reasons,
          contending that, as a matter of law, the materials
          set forth are incapable of defamatory meaning as
          factual allegations. In particular, these [Appellees]
          argue that the comments about Slozer’s personality
          and mental traits, which appeared on the website,
          were merely opinions and otherwise fair game in the
          rough-and-tumble world of politics. As such, they

                                   -3-
J-A15028-15


              contend the statements are not actionable.
              Additionally, they argue that, in view of the public-
              figure status of both [Appellants], there is
              insufficient evidence of actual malice, in the form of
              evidence that [Appellees] knew the statements were
              false or acted in reckless indifference to the truth of
              any matter published. More specifically, Slattery
              points to evidence indicating that Donches has
              admitted in deposition that he did verbally confront
              and grab a motorist in a traffic altercation and that
              he did, in fact, take possession of the subject DVD
              without permission, thereby justifying the allegation
              that Donches stole property, as alleged in the
              website. Slattery contends that in light of these
              admissions, he cannot be deemed to have acted in
              reckless disregard of the truth. Finally, in relation to
              the campaign signs, Slattery maintains he never
              accused Donches of stealing these materials.
              Rather, he insists that [Appellants’] reading of the
              website referencing removal of political signs
              represents a mischaracterization of the information
              actually published.

Trial Court Opinion, 8/22/14, at 2-4 (citations omitted).

       Argument on the various motions for summary judgment was held on

August 20, 2014.        On August 22, 2014, the trial court issued an order

granting all of the Appellees’ various motions for summary judgment and

dismissing Appellants’ claims with prejudice. Appellants filed a timely notice

of appeal on September 9, 2014.2




____________________________________________
2
  Appellants and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



                                           -4-
J-A15028-15


       On appeal, Appellants raise 18 overlapping issues in the “questions

presented for review” section of their brief.3 However, the Argument section

of their brief is divided into only five sections with alternatively phrased

headings describing the issues addressed in each section.           This fails to

comply with the briefing requirements set forth in the Pennsylvania Rules of

Appellate Procedure. See Graziani v. Randolph, 856 A.2d 1212, 1216 (Pa.

Super. 2004) (noting a brief containing argument sections that do not clearly

correspond to the questions presented violates Rule 2116(a)). However, to

the extent Appellants’ arguments essentially streamline and subsume the

issues articulated in his questions presented, we will address them as

presented in their argument section.           See Lundy v. Manchel, 865 A.2d

850, 855 (Pa. Super. 2004) (addressing the merits of appellants arguments

to the extent they were similar to the questions presented). The issues so

described in the argument section are as follows.

              A.    [Whether t]he trial court erred in its conclusion
              that the website www.ottosback.com did not defame
              [Appellants] when the allegations of criminal activity
              and mental illness attributed to Appellants was
              demonstrably false and done with malice[?]

              B.    [Whether] [] Donches was falsely accused of
              theft of campaign signs by [] Slattery in another

____________________________________________
3
  The statement of questions presented for review are identical to those
posed in Appellants’ Rule 1925(b) statement. See Appellants’ Brief at 2-4,
and Rule 1925(b) Concise Statement, 9/25/14, at 1-2. Nevertheless, for the
reasons explained above we elect to address the issues as argued by
Appellants in their appellate brief.


                                           -5-
J-A15028-15


            Internet posting and thereby defamed Candidate
            Donches[?]

            C.    [Whether] [] Slozer is a private person for
            purposes of this action[?] [Whether] Donches is a
            public figure[?]

            D.   [Whether] Defamation through social media,
            Facebook, is a novel question in Pennsylvania[?]

            E.   [Whether] [] Neely and Barrett are proper
            defendants in this matter[?]

Appellants’ Brief at 6, 13, 15, 19-20.

      We begin by acknowledging the standard of review governing our

consideration of this appeal. “[O]ur standard of review of an order granting

summary judgment requires us to determine whether the trial court abused

its discretion or committed an error of law[,] and our scope of review is

plenary.” Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa. Super.

2012) (citations omitted). “We view the record in the light most favorable to

the nonmoving party, and all doubts as to the existence of a genuine issue

of material fact must be resolved against the moving party.”      Barnes v.

Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing Erie Ins. Exch. v.

Larrimore, 987 A.2d 732, 736 (Pa. Super. 2009) (citation omitted). “Only

where there is no genuine issue as to any material fact and it is clear that

the moving party is entitled to a judgment as a matter of law will summary

judgment be entered.”     Id.   The rule governing summary judgment has

been codified at Pennsylvania Rule of Civil Procedure 1035.2, which states as

follows.

                                     -6-
J-A15028-15


            Rule 1035.2. Motion

            After the relevant pleadings are closed, but within
            such time as not to unreasonably delay trial, any
            party may move for summary judgment in whole or
            in part as a matter of law

                    (1) whenever there is no genuine issue of any
                    material fact as to a necessary element of the
                    cause of action or defense which could be
                    established by additional discovery or expert
                    report, or

                    (2) if, after the completion of discovery
                    relevant to the motion, including the
                    production of expert reports, an adverse party
                    who will bear the burden of proof at trial has
                    failed to produce evidence of facts essential to
                    the cause of action or defense which in a jury
                    trial would require the issues to be submitted
                    to a jury.

Pa.R.C.P. 1035.2.

      “Where the non-moving party bears the burden of proof on an issue,

he may not merely rely on his pleadings or answers in order to survive

summary judgment.” Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa.

Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa. 2013).

Further, “failure of a non-moving party to adduce sufficient evidence on an

issue essential to his case and on which he bears the burden of proof

establishes the entitlement of the moving party to judgment as a matter of

law.” Id.

            Thus, our responsibility as an appellate court is to
            determine whether the record either establishes that
            the material facts are undisputed or contains
            insufficient evidence of facts to make out a prima

                                      -7-
J-A15028-15


            facie cause of action, such that there is no issue to
            be decided by the fact-finder. If there is evidence
            that would allow a fact-finder to render a verdict in
            favor of the non-moving party, then summary
            judgment should be denied.

Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa. Super.

2011), quoting Jones v. Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007)

(internal citations omitted).

      In a defamation case, the plaintiff has the burden of proof on the

following elements.

            § 8343. Burden of proof

            (a) Burden of plaintiff.--In an action for
            defamation, the plaintiff has the burden of proving,
            when the issue is properly raised:

                  (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.

                                           …

42 Pa.C.S.A. § 8343(a).

                                      -8-
J-A15028-15


        We proceed to address the merits of Appellants’ issues, albeit in a

different order than presented in their brief. As related above, each motion

for summary judgment filed by the various Appellees sought relief on distinct

grounds. Appellants’ issue “E” addresses the trial court’s grant of the motion

for summary judgment brought by Neely and Barrett on the grounds the

action against them was barred by the statute of limitations.            Appellants’

Brief at 20.         The parties acknowledge that the applicable statute of

limitations for Appellants’ defamation action requires commencement within

one year.4     Id.    Appellants assert that, with respect to Neely and Barrett,

their inclusion of “John Doe” as an unknown defendant responsible for

creation and dissemination of the offending website within the one-year

period is sufficient to satisfy the statute when they promptly amended the

complaint to add Neely and Barrett by name upon learning of their identity.

Appellants’ Brief at 23.

              [Appellants] speculated that there were others
              involved in the campaign and website but had no
              hard evidence to prove that Neely and Barrett were
              involved.    [Appellants] timely filed their initial
____________________________________________
4
    The statute provides as follows.

              § 5523. One year limitation

              The following actions and proceedings must be
              commenced within one year:

              (1) An action for libel, slander or invasion of privacy.

42 Pa.C.S.A. § 5523(1).


                                           -9-
J-A15028-15


            complaint in April 2012 naming John and Jane
            []Does [] to preserve the statute of limitations,
            regarding the possible existence of other defendants
            whose involvement came to light as the case
            progressed.

            …Assuming the propriety of the John Doe filing in the
            original complaint filed in April 2012, the action was
            timely filed within the one year statute of limitations.
            The ultimate discovery of the identity of the creators
            of the website came in April 2013.             Plaintiffs
            promptly filed a motion to amend the complaint to
            add Neely and Barrett which [the trial c]ourt allowed.
            The amended complaint was then filed after the
            motion was granted on July 17, 2013.

Id. at 20, 23.

      Appellants alternatively suggest the statute did not commence until

they discovered not only the injury from the alleged defamation but the

identity of the persons responsible.     Id. at 22.    “However, [] Neely and

Barrett solely focus on the date of discovery of the injury which covers a

time period from October 12, 2011 through November 8, 2011.                  The

problem is that [Appellants] in this case did not know who caused the injury

beyond Citizens [], [] Slattery and [] Holzhafer.”      Id.   Finally, Appellants

make reference to the application of the “discovery rule,” outlining their due

diligence in ascertaining the identity of Neely and Barrett, and the lack of

cooperation of the Appellees in that effort. Id. at 20-21.

            Generally, a statute of limitations period begins to
            run when a cause of action accrues; i.e., when an
            injury is inflicted and the corresponding right to
            institute a suit for damages arises. It is the duty of
            the party asserting a cause of action to use all
            reasonable diligence to properly inform him-or

                                     - 10 -
J-A15028-15


            herself of the facts and circumstances upon which
            the right of recovery is based and to institute suit
            within the prescribed period. Generally, once the
            prescribed statutory period has expired, the
            complaining party is barred from bringing suit.

Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011). Contrary to

Appellants’ implication, neither the commencement of the running of a

statute of limitations, nor the application of the “discovery rule” is dependent

on a plaintiff’s knowledge of the identity of the individual causing the injury.

            [T]he general rule that a cause of action accrues,
            and thus the applicable limitations period begins to
            run, when an injury is inflicted. In certain cases
            involving latent injury, and/or instances in which the
            causal connection between an injury and another’s
            conduct is not apparent, the discovery rule may
            operate to toll the statute of limitations until the
            plaintiff discovers, or reasonably should discover,
            that she has been injured and that her injury has
            been caused by another party’s conduct.

Wilson v. El-Daief, 964 A.2d 354, 361-362 (Pa. 2009) (citations omitted;

emphases added).

      Instantly, it is undisputed that Appellants became aware of the alleged

defamatory statement in the website and of their alleged injury therefrom by

at least November of 2011. Trial Court Opinion, 8/22/14, at 5.        Appellants

did not add Neely and Barrett to the amended complaint until July 24, 2013,

well after the one-year limitation triggered by Appellants’ discovery of their

injury and cause of action. See Gleason, supra.        Further, their inability to

identify Neely and Barrett did not toll the running of the statute of limitation

as to those Appellees. See Wilson, supra.

                                     - 11 -
J-A15028-15


      We also conclude that the filing of a “John Doe” complaint did not

bring Appellants into compliance with the one-year period to commence an

action against Neely and Barrett.    An unidentified “John Doe” defendant,

who has not been served or entered an appearance, is not a legal party to a

suit. Weiley v. Albert Einstein Med. Ctr, 51 A.3d 202, 215 (Pa. Super.

2012). This Court has noted its disagreement with the “proposition that a

defendant can be named as “John Doe” in the original complaint and later

the plaintiff can substitute the real name after the defendant’s true identity

has been discovered even though the statute of limitations has expired.”

Anderson Equip. Co. v. Huchber, 690 A.2d 1239, 1242 (Pa. Super. 1997);

see also Commonwealth v. Laventure, 894 A.2d 109, 116-117 (Pa.

2006) (applying the same principles in disapproving of the Commonwealth’s

attempt to substitute in an amended complaint a known named defendant

for the “John Doe” defendant named in the original complaint after the

expiration of the applicable statute of limitations). Appellants here attempt

to do precisely what this Court disallowed in Anderson.      Accordingly, we

conclude the trial court properly granted Neely and Barrett’s motions for

summary judgment because Appellants cannot state a valid claim against

them. See Barnes, supra.

      In their issue “D”, Appellants fault the trial court for granting

Holzhafer’s motion for summary judgment on the grounds that her only

action was a mere posting of a link to the site without substantive


                                    - 12 -
J-A15028-15


commentary, and therefore does not constitute publication of the alleged

defamatory statement.     Appellants’ Brief at 15.   Further, Appellants argue

that Holzhafer, although not a party to the composing and initial publishing

of the allegedly defamatory statements, did more than merely link to the

“ottosback” website. They assert that by “liking” the link on her Facebook

page, Holzhafer communicated her attitude to the substance of the

referenced article, sufficient to be considered a republication of the alleged

defamation. Id. at 17. Accordingly, Appellants argue Holzhafer’s posting of

a link to the allegedly defamatory article accompanied with a “like”

designation is sufficient republication of the defamatory statements to create

a cause of action against Holzhafer. Id. We disagree.

       Citing In re Phila. Newspapers, LLC, 690 F.3d 161, 173-175 (3d

Cir. 2012) and the Restatement (Second) of Torts §§ 577, 581, the trial

court concluded “the mere posting of a link on one’s website without

substantive commentary will not constitute a republication of any linked

materials so as to state a claim for defamation.”         Trial Court Opinion,

8/22/14, at 6.     Specifically, the trial court described Holzhafer’s link and

attendant comments on her Facebook page as follows.          “In this case, the

only statement uttered by Holzhafer consisted of a reference to the website

coupled with the following exhortation: ‘Oh, politics … this is when I’d like to

fast forward to November 9 and know what the future holds! This election is

critical.   Please get out and vote!’”   Id.   The trial court concluded that


                                     - 13 -
J-A15028-15


“[u]nder any reasonable assessment, this cannot be deemed a publication of

any underlying defamatory material that may or may not appear at the

linked website.” Id.

        In Phila. Newspapers,5 the Third Circuit Court of Appeals noted that

“Pennsylvania courts have not considered whether the single publication rule

applies to Internet publication.”6 Phila. Newspapers, supra at 174. The

____________________________________________
5
   We recognize “pronouncements of the lower federal courts have only
persuasive, not binding, effect on the courts of this Commonwealth—
although we certainly are bound by the decisions of the U.S. Supreme Court
on questions of federal law.” Gongloff Contracting, L.L.C. v. L. Robert
Kimball & Assocs., Architects and Eng’rs, Inc., 119 A.3d 1070, 1078 n.6
(Pa. Super. 2015).
6
    Pennsylvania has adopted the “single publication rule” by statute.

              § 8341. Single publication limitation

              (a) Short title of section.--This section shall be
              known and may be cited as the “Uniform Single
              Publication Act.”

              (b) General rule.--No person shall have more than
              one cause of action for damages for libel or slander,
              or invasion of privacy, or any other tort founded
              upon any single publication, or exhibition, or
              utterance, such as any one edition of a newspaper,
              or book, or magazine, or any one presentation to an
              audience, or any one broadcast over radio or
              television, or any one exhibition of a motion picture.
              Recovery in any action shall include all damages for
              any such tort suffered by the plaintiff in all
              jurisdictions.

              (c) Bar by judgment.--A judgment in any
              jurisdiction for or against the plaintiff upon the
              substantive merits of any action for damages
(Footnote Continued Next Page)

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J-A15028-15


Third Circuit noted that under the rule, only one cause of action for a single

publication of defamatory statements may be brought, regardless of the

extent or timing of any circulation of that publication. Id. Republication of

the same content, however, may provide a new cause of action if it

constitutes a new edition of the defamatory material.       Id.   “Additionally,

under traditional principles of republication, a mere reference to an article,

regardless how favorable it is as long as it does not restate the defamatory

material, does not republish the material.” Id. at 175 (citation omitted).

             Traditional principles of republication thus require
             the retransmission of the allegedly defamatory
             material itself for the doctrine to apply. However,
             courts addressing the doctrine in the context of
             Internet publications generally distinguish between
             linking, adding unrelated content, or making
             technical changes to an already published website
                       _______________________
(Footnote Continued)
             founded upon a single publication, or exhibition, or
             utterance, as described in subsection (b), shall bar
             any other action for damages by the same plaintiff
             against the same defendant founded upon the same
             publication, or exhibition, or utterance.

42 Pa.C.S.A. § 8341.

             Pennsylvania established this rule in response to the
             concern that a contrary rule would render any
             statute of limitations “meaningless in that an action
             could be filed any time a defamatory article was
             read, no matter the time lag between the actual
             printing of the article and the reading of the article
             by a third party.” Graham v. Today’s Spirit, 503
             Pa. 52, 468 A.2d 454, 457 (1983).

McClenaghan v. Turi, 567 F. App’x. 150, 153-154 (3d Cir. 2014).



                                           - 15 -
J-A15028-15


              (which they hold is not republication), and adding
              substantive material related to the allegedly
              defamatory material to an already published website
              (which they hold is republication).

                    Several courts specifically have considered
              whether linking to previously published material is
              republication. To date, they all hold that it is not
              based on a determination that a link is akin to the
              release of an additional copy of the same edition of a
              publication because it does not alter the substance of
              the original publication. See, e.g., Sundance
              Image Tech., Inc. v. Cone Editions Press, Ltd.,
              No. 02–02258, 2007 WL 935703 (S.D.Cal. Mar. 7,
              2007); Churchill v. State of N.J., 378 N.J. Super.
              471, 876 A.2d 311 (2005).

Id. at 174.

      We agree with the reasoning of the Third Circuit and conclude it

accurately reflects Pennsylvania law regarding the doctrines of single

publication and republication in defamation actions as they apply to internet

communications. We further conclude the trial court correctly applied those

principles to the facts of the instant case. Holzhafer, by providing a link to

the challenged posting, without reiterating the content of that posting did

not initiate a republication. Her motivations and her designation of the link

with a “like” as alleged by Appellants, is not equivalent to a reiteration of the

defamatory      content   as   to    constitute   republication.   See    Phila.

Newspapers, supra at 174.           Accordingly, we determine Appellants’ issue

“D” to be without merit and discern no error by the trial court in granting

Holzhafer’s motion for summary judgment.




                                       - 16 -
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      We proceed to address Appellants’ issue “C”, wherein Appellants assert

the trial court erred in determining that Slozer is a public figure. Appellants’

Brief at 13. “The classification of a plaintiff as a public or private figure is a

question of law to be determined initially by the trial court and then carefully

scrutinized by an appellate court.”    Joseph v. Scranton Times L.P., 959

A.2d 322, 339, (Pa. Super. 2008) (internal quotation marks and citations

omitted) (Joseph I). “[O]ur review of this issue is plenary, as it involves a

question of law.”   Brown v. Phila. Tribune Co., 668 A.2d 159, 162 (Pa.

Super. 1995), appeal denied, 675 A.2d 1241 (Pa. 1996), cert. denied, 519

U.S. 864 (1996).

      A plaintiff’s status as a public figure will affect his or her burden in a

defamation case. “If the plaintiff is a public official or public figure, [he or]

she must prove also that the defendant, in publishing the offending

statement, acted with actual malice,           i.e. with knowledge that [the

statement] was false or with reckless disregard of whether it was false or

not.” Joseph v. Scranton Times, L.P., 89 A.3d 251, 260-261 (Pa. Super.

2014) (citation omitted) (Joseph II), appeal granted, 105 A.3d 655 (Pa.

2014).    A public-figure plaintiff must meet that burden by clear and

convincing evidence. Tucker v. Phila. Daily News, 848 A.2d 113, 127-128

(Pa. 2004).

      “Because one individual’s speech has the ability to harm another

person’s reputation, there is an inevitable tension in the law between the


                                      - 17 -
J-A15028-15


goals of protecting freedom of expression and safeguarding reputation from

unjust harm.” Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa.,

923 A.2d 389, 395 (Pa. 2007) (additional citation omitted), citing, Gertz v.

Robert Welch, Inc., 418 U.S. 323, 342 (1974). Thus, the United States

Supreme Court determined as follows.

            If the plaintiff is a public official or public figure… and
            the statement relates to a matter of public concern,
            then to satisfy First Amendment strictures the
            plaintiff must establish that the defendant made a
            false and defamatory statement with actual malice.
            In contrast, states are free to allow a private-figure
            plaintiff to recover by establishing that the defendant
            acted negligently rather than maliciously.

Id. at 400 (citations omitted). Our Supreme Court has determined that “in

the context of defamation law the state Constitution’s free speech

guarantees are no more extensive than those of the First Amendment.” Id.

(citations omitted).

            [T]he First Amendment does not force states to
            require a showing of actual malice where a private
            person’s reputation is harmed, even where the
            speech pertains to a matter of public or general
            interest. Accordingly, this Court has… recognized
            that any focus on whether the speech is of public or
            private concern has been replaced by an inquiry into
            whether the plaintiff is a public or private figure.

Id. at 399 (citations omitted).

            [T]he classification as a public figure arises in two
            circumstances: first, referring to an “all purpose”
            public figure, the Court explained that, in some
            instances an individual may achieve such pervasive
            fame or notoriety that he becomes a public figure for
            all purposes and in all contexts. Alternatively, a

                                      - 18 -
J-A15028-15


            limited purpose public figure,” which according to the
            Court is more common, is an individual who
            “voluntarily injects himself or is drawn into a
            particular public controversy and thereby becomes a
            public figure for a limited range of issues.          To
            determine such status, the Court instructed that it is
            necessary to consider the nature and extent of an
            individual’s participation in the particular controversy
            giving rise to the defamation.

                   Traditionally, a plaintiff could only be
            considered a limited-purpose public figure relative to
            a pre-existing controversy in which he elected to
            participate. [H]owever… a controversy may be
            created by a plaintiff’s own activities, particularly
            with respect to widespread public solicitation and
            advertisements.

Id. at 401-402 (some internal quotation marks and citations omitted).

“[I]nquiries into limited-purpose public figure status are particularized and

fact-sensitive.” Id. at 404. “[T]he requirement that the plaintiff be able to

show actual malice by clear and convincing evidence is initially a matter of

law. The question whether the evidence in the record in a defamation case

is sufficient to support a finding of actual malice is a question of law.”

Tucker, supra at 130.

      Appellants concede that Donches, as a candidate for election to public

office is a public figure for the purposes of this case. Appellants’ Brief at 13.

Our review is therefore confined to the trial court’s determination that Slozer

is a limited-purpose public figure. Id. at 14.

            Slozer was a public official until 2000. He is still a
            concerned citizen. But he is a private person for
            purposes of the legal analysis here.       The [trial]
            court[‘s] [] conclusion that Slozer is a public figure

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            based upon his activities carried on 14 years ago and
            Slozer’s participation in community affairs between
            2000 and 2011 simply do not meet the … test to
            determine a public figure status.

Id. at 14. In support of his argument, Slozer quotes Gertz as follows.

            “We would not lightly assume that a citizen’s
            participation in community and professional affairs
            rendered him a public figure for all purposes. Absent
            clear evidence of general fame or notoriety in the
            community, and pervasive involvement in the affairs
            of society, an individual should not be deemed a
            public personality for all aspects of his life.”

Id. at 14-15, quoting Gertz, supra at 352 (emphasis added).

      The trial court, however did not find Slozer a public figure for all

aspects of his life. Trial Court Opinion, 8/22/14, at 9. Rather, the trial court

tailored its finding to the particular circumstances surrounding the alleged

defamation. Id. The trial court explained as follows.

            [I]n view of his unquestionably public role in the
            relevant community of Emmaus, Slozer must also be
            deemed a public figure for purposes of a defamation
            analysis in the circumstance at issue in this case.
            This conclusion is further compelled by the fact that
            the statements at issue here are directly connected
            to, and concerned with, criticisms of Slozer’s record
            in his elected position in Emmaus municipal
            government. Although it cannot be said that one
            categorically renounces a private life in all respects
            upon taking public office, it is but a truism to
            acknowledge that public actions by a public servant
            remain of legitimate public concern even after an
            official leaves office. And where such an official
            continues to participate vocally in public affairs, he
            may not so easily dissociate himself from his role as
            a “public figure.” On the present facts, there is,
            therefore, no question that in the relevant
            community of Emmaus, Plaintiff Slozer maintained

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J-A15028-15


              the status of public figure during the 2011 campaign
              season for the purposes of defamation law.

Id. at 8-9.

        Our review of the record leads us to the same conclusion.

              A person may become a limited purpose public figure
              if he thrust[s] himself into the vortex of the
              discussion of pressing public concerns.       Such a
              person uses purposeful activity to thrust his
              personality into a public controversy. He becomes a
              limited purpose public figure because he invites and
              merits attention and comment.         A person may
              become a limited purpose public figure if he attempts
              to have, or realistically can be expected to have, a
              major impact on the resolution of a specific public
              dispute that has foreseeable and substantial
              ramifications for persons beyond its immediate
              participants. A private individual, however, is not
              automatically transformed into a public figure just by
              becoming involved in or associated with a matter
              that attracts public attention.

Joseph I, supra at 339 (internal quotation marks and citations omitted).

Here the record supports the conclusion Slozer, in the time since his stint as

council member continued to advocate issues and publically organize to

advance his political agenda. Cf. Brown, supra at 162 (holding dentist who

was thrust into controversy over his actions by press reports was not

thereby rendered a public figure). For these reasons we conclude the trial

court did not err in treating Slozer as a public figure for the purposes of this

case.

        Finally, in their issues “A” and “B,” Appellants challenge the trial

court’s findings that the posting by Slattery and Citizens on the website



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ottosback.com from about October 8, 2011 to November 11, 2011, was not

capable of defamatory meaning where the same falsely claimed Appellants

engaged in criminal behavior and/or suffered from psychiatric illnesses.

Appellants’ Brief at 6-13.

        “Whether a communication can be construed to have a defamatory

meaning is a question of law for the court to determine.” Joseph II., supra

at 262 (citation omitted).     “If the court determines that the challenged

[communication] is not capable of a defamatory meaning, there is no basis

for the matter to proceed to trial.”      Weber v. Lancaster Newspapers,

Inc., 878, A.2d 63, 78 (Pa. Super. 2005) (citation omitted), appeal denied,

903 A.2d 539 (Pa. 2006). “[H]owever, if there is an innocent interpretation

and an alternate defamatory interpretation, the issue must proceed to the

jury.” Krajewski v. Gusoff, 53 A.3d 793, 803 (Pa. Super. 2012) (emphasis

and citation omitted), appeal dismissed, 84 A.3d 1057 (Pa. 2014).

        The determination of whether a statement is defamatory turns on “if it

tends to harm the reputation of another so as to lower him in the estimation

of the community or deter third persons from associating or dealing with

him.”     Id.   (citations omitted).    Further, when considering whether a

communication is slanderous, “the Court must determine the effect of the

communication in the minds of average people amongst whom the

communication is intended to circulate.” Reardon v. Allegheny Coll., 926

A.2d 477, 484 (Pa. Super. 2007) (citation omitted), appeal denied, 947 A.2d


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J-A15028-15


738 (Pa. 2008).     A statement is “defamatory if it ascribes to another

conduct, character or a condition that would adversely affect his fitness for

the proper conduct of his business.” Constantino v. Univ. of Pittsburgh,

766 A.2d 1265, 1270 (Pa. Super. 2001) (citation omitted). “It is not enough

that the victim of the [statements] … be embarrassed or annoyed, he must

have suffered the kind of harm which grievously fractured his standing in the

community.” Kurowski v. Borroughs, 994 A.2d 611, 617-618 (Pa. Super.

2010) (citations omitted), appeal denied, 12 A.3d 752 (Pa. 2010).

     The internet website at issue addressed Donches’ candidacy for a seat

on the Borough Council for Emmaus Borough and sought to expose his

political connection with Slozer, a past Borough council member. Complaint,

4/16/12, Exhibit A at 1-5. In addition to characterizations of Donches and

Slozer’s supposed political positions and philosophy, the website contained

the following assertions, which Appellants claim are defamatory. In headline

fashion to a section discussing Donches, Slattery and Citizens, the website

included the following statements: “Stole Borough property in 2010,” and

“Assaulted a man in Lower Macungie.” Id. at 1. The posting continued in

paragraph form as set forth below.

           Meet John Donches: John made headlines late last
           year after he kindly stole Borough property from the
           Service Electric TV studios in a delusional panic in
           which he thought his wife’s comments at a public
           meeting were altered. Borough Council decided to
           let a man who suffers from unmedicated mental
           health issues walk away scott-free [sic], apparently
           compassionate about his untreated condition. It was

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J-A15028-15


              not John’s only bout with the law.           John was
              summoned to court after assaulting a man in a road
              rage incident in Lower Macungie Township in which
              he violently ripped a man out of the front window of
              his truck after driving close to John and his wife, who
              were bicycling outside, blocking the road and travel
              lane. John SNAPPED and darted after the driver until
              he came to a stop. John assaulted the man at which
              point the State Police arrived. John’s rage is well
              known among ex-friends and those who watch
              council meeting online or attend them in person.
              Watching his blood boil and his face turn intense
              shades of red as he represses a tantrum would be
              funny if it wasn’t so scary to think that such an
              unstable man is a proud card carrying NRA member.
              Lock your doors!

Id. at 1-2.

      In like fashion, the section addressing Slozer, commenced with the

following.

              Meet Otto Slozer: Just thinking of Otto Slozer is
              reminiscent of a psychological vocab test.

              Megalomania: A delusional mental disorder that is
              marked by feelings of personal omnipotence and
              grandeur.

              Paranoia: a psychosis characterized by systematized
              delusions of persecution or grandeur usually without
              hallucinations.

              Delusional: A persistent false psychotic belief
              regarding the self or persons or objects outside the
              self that is maintained despite indisputable evidence
              to the contrary.

Id. at 5.

      Appellants, with regard to the mental health references contained in

the website, argued as follows.

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J-A15028-15


            The Ottosback website says that [] Slozer suffers
            from a variety of mental illnesses as defined in the
            DSM. These were not mere opinion as the Court
            below suggests. They were offered as facts by the
            defendants without any basis in reality. Similarly,
            allegations of mental illness are leveled against []
            Donches.

Appellants’ Brief at 7.     The trial court found, to the contrary, that the

website’s references to the Appellants’ mental health were not capable of

defamatory meaning.

            Although hardly a lofty exposition of the issues
            evidently at the forefront of the campaign -- much
            less a shining example of political pamphleteering
            worthy of the heritage bestowed by Paine and his
            erudite cohort of Founding Fathers -- the statements
            about Donches and Slozer are nevertheless not
            capable of defamatory meaning as a matter of law.
            Properly viewed in the context in which they appear,
            the references to Donches’ and Slozer’s psychological
            traits would fairly be received by the intended
            audience as nothing more than opinionated
            assessments of a political opponent’s character and
            motivation.

Trial Court Opinion, 8/22/14 at 14. We agree.

      First, the language used does not claim that a professional diagnosis

for any mental health issue exists. See Complaint, 4/16/12, Exhibit A at 1-

5.   Rather the references draw parallels the author perceives between the

positions and actions of Appellants in the context of Borough politics and the

supposed symptomatic manifestations suggested by the definitions of certain

psychological conditions. Id. Read in the context of the whole posting it is

clear, as the trial court notes, that the import is that the political positions of


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J-A15028-15


Appellants are irrational in the view of the author because they are

“reminiscent” of conclusions and positions that would be generated by one

with such mental traits. Id. at 5. While the tone and manner of expression

may be crude, unartful, and vexing for Appellants, that does not raise the

author’s opinions in this regard, capable of defamatory meaning.         See

Kurowski, supra.     Accordingly, we discern no error by the trial court in

granting Slattery and Citizens’ motion for summary judgment relative to

Slozer’s defamation claim.

     With respect to the averments in the posting averring criminal conduct

by Donches, the statements are more direct. Here the statements were not

stated as comparisons or opinion as was the case with the references to

“undiagnosed” mental health conditions. See Complaint, 4/16/12, Exhibit A

at 1-2. Rather the incidents were stated as facts of criminal conduct. Id.

“Statements by a defendant imputing to the plaintiff a criminal offense,

punishable by imprisonment, or conduct incompatible with the plaintiff’s

business constitute slander per se.” Brinich v. Jencka, 757 A.2d 388, 397

(Pa. Super. 2000), appeal denied, 771 A.2d 1276 (Pa. 2001), citing

RESTATEMENT (SECOND)   OF   TORTS §§ 570(a), (c), 571, 573 (holding published

statement indicating plaintiffs misused construction loan funds to support a

drug habit is defamatory per se); see also Krajewski, supra (holding

publication of comments interpretable as impugning public figure plaintiff

with criminal conduct was capable of defamatory meaning); Agriss v.


                                     - 26 -
J-A15028-15


Roadway Exp., Inc., 483 A.2d 456, 462-463 (Pa. Super. 1984) (holding

statement that plaintiff opened company mail was capable of defamatory

meaning because it implicated criminal conduct).

       The trial court determined, however, under the facts of this case, that

Appellants could not establish the requisite malice by clear and convincing

evidence.    See Tucker, supra.     Our review of the record compels us to

agree.      While Donches in his deposition testimony provided alternate

explanations for the incidents referred to on the website and relative to

Slattery’s comment about the photo line-up, he admitted to the basic factual

truth that the incidents occurred and that allegations had been made against

him.     Slattery’s Motion for Summary Judgment, 5/29/14, Exhibit H

(Deposition of Donches) at 7, 8-16. As such, we concur in the trial court’s

conclusion that Donches could not establish malice on the part of Slattery or

Citizens by clear and convincing evidence.         See Trial Court Opinion,

8/22/14, at 10 (stating, “the undisputed facts establish that Donches,

without permission, took property not belonging to him and that he, in fact,

verbally and physically confronted another person in the course of a traffic

accident”); see also Tucker, supra. Where a factual basis for a statement

is present, malice cannot be shown merely because further investigation

may have led to different conclusions. “However… even were [an a]ppellee

to be deemed negligent for failure to investigate, either by obtaining

independent confirmation of his information or consulting other, possibly


                                    - 27 -
J-A15028-15


more reliable sources, that finding would be insufficient to demonstrate

actual malice.”    Blackwell v. Eskin, 916 A.2d 1123, 1126, (Pa. Super.

2007). Accordingly, we conclude as a matter of law that Donches would be

unable to establish actual malice against Slattery and Citizens by clear and

convincing evidence.   We therefore conclude the trial court did not err in

granting Slattery and Citizens’ motion for summary judgment relative to

Donches’ claims.

     In summary, we conclude that Appellants’ claims against Appellees

Neely and Barrett are barred as being commenced after the expiration of the

applicable statute of limitations. We also conclude that Appellee Holzhafer’s

posting a link to the allegedly defamatory website with a “like” designation

on her Facebook page, is not a republication of the content of the website

sufficient to support a separate cause of action for defamation against her.

We further conclude that for the purposes of the instant litigation, both

Appellants are public figures and subject to the burdens attendant to public

figure plaintiffs in defamation cases.   Additionally, we conclude that the

alleged defamatory comments relative to the mental health status of the

Appellants is not capable of defamatory meaning when viewed in the context

of the website as a whole.       Finally, we conclude that the statement

attributing criminal behavior to Donches cannot be shown to have been

made with malice by clear and convincing evidence.




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J-A15028-15


      Based on the foregoing, we discern no issues of material fact for a jury

to determine in this case, and we find no error by the trial court in granting

the several motions for summary judgment and dismissing Appellants’

complaint with prejudice.    Accordingly, the trial court’s August 22, 2014

order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2015




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