                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2009

Joseph Pacitti v. Richard Durr
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2105




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Joseph Pacitti v. Richard Durr" (2009). 2009 Decisions. Paper 1881.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1881


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 08-2105
                                    _____________

                     JOSEPH PACITTI; BEN CINQUEGRANA,

                                                Appellants

                                           v.

                           RICHARD E. DURR; JANE DOE
                                 ______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                 (D.C. No. 05-cv-317)
                     District Judge: Honorable Joy Flowers Conti
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 5, 2009

              Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.

                               (Filed: February 11, 2009)
                                   _______________

                              OPINION OF THE COURT
                                  _______________




_______________
   *Honorable Alan D. Lourie, Circuit Judge of the United States Court of Appeals for
the Federal Circuit, sitting by designation.
JORDAN, Circuit Judge.

       Plaintiffs Joseph Pacitti and Ben Cinquegrana appeal an order from the United

States District Court for the Western District of Pennsylvania granting summary judgment

to Defendant Richard E. Durr on Pacitti’s claims of defamation of character, invasion of

privacy, and ethnic intimidation and on Cinquegrana’s claim of defamation of character.

Because the District Court correctly applied the law that the parties agreed was applicable

to the Plaintiffs’ claims and because we agree that there are no genuine issues of material

fact, we will affirm.

I.     Background

       The seeds of acrimony in this case can be described briefly. Pacitti and Durr both

own condominiums in a community called “Seapointe,” in Key Colony Beach, Florida.

In March 2003, Durr was appointed President of the Seapointe Condominium Association

Board of Directors. In that capacity, he wrote Pacitti a series of letters regarding matters

related to the Association, and he included allegations that Pacitti had failed to timely pay

his association fees, had made unapproved renovations to his condominium, and was

violating the Seapointe guest policy. Durr mentioned these same issues in memoranda

and letters he sent to other Seapointe unit owners. Pacitti alleges that Durr also searched

public records regarding encumbrances on Pacitti’s unit, entered Pacitti’s unit without

permission while it was being remodeled, and made a derogatory remark about Pacitti’s

Italian heritage after an Association meeting.



                                              2
       Cinquegrana owns a construction company that was hired by Pacitti and other unit

owners to perform renovation projects at Seapointe. As President of the Board, Durr sent

Cinquegrana letters concerning Association matters, including alleged damage to a

Seapointe elevator and payment for engineering work performed at Seapointe by an

associate of Cinquegrana’s. Cinquegrana also alleges that, during a face-to-face

confrontation, Durr called him a liar and a thief and made an offensive remark about his

Italian heritage.

       Pacitti and Cinquegrana filed suit against Durr in the Western District of

Pennsylvania, where Durr maintains his principle residence. As noted earlier, Pacitti

alleges state law claims for defamation, invasion of privacy, and ethic intimidation, and

Cinquegrana alleges a claim for defamation.1 The District Court granted summary

judgment to Durr on all of the claims and issued a thorough explanation of its holding.

The Court applied Pennsylvania law and concluded that the communications that formed

the basis for Pacitti’s defamation claims, to the extent they could be attributed to Durr,

were either substantially true, or privileged, or not capable of defamatory meaning. The

Court further determined that Pacitti had failed to produce sufficient evidence to establish

his claim for invasion of privacy. Finally, the Court held that, because Pacitti had not

established any of the offenses that are a prerequisite for a claim of ethnic intimidation, he



      1Plaintiffs also filed claims for harassment and conspiracy. Those claims,
however, were dismissed by the District Court early in this litigation and are not
mentioned by Plaintiffs in this appeal.

                                              3
could not maintain that claim either. As to Cinquegrana’s defamation claim, the Court

determined that the communications complained of, to the extent not already addressed by

the analysis pertaining to Pacitti’s claims, were only published to Cinquegrana himself,

not to any third party, and therefore could not be defamatory. Pacitti and Cinquegrana

filed a timely notice of appeal and now argue that the District Court erred in granting

Durr’s motion for summary judgment.

II.    Discussion 2

       A.     Defamation

       Applying Pennsylvania law, the District Court granted summary judgment to Durr

on Plaintiffs’ defamation claims, largely on the basis of two defenses: privilege and truth.3

To establish a defamation claim under Pennsylvania law, Plaintiffs needed to prove that

Durr published defamatory material in a negligent manner. American Future Sys., Inc. v.

BBB of Eastern Pa., 923 A.2d 389, 400 (Pa. 2007); see also Joseph v. Scranton Times

L.P., 959 A.2d 322, 342 (Pa.Super. 2008). Negligence in this context is the publication of



       2 The District Court had diversity jurisdiction over this case pursuant to 28 U.S.C.
§ 1332. We have appellate jurisdiction over the District Court’s final order, under 28
U.S.C. § 1291, and exercise plenary review over the District Court’s decision to grant
summary judgment. Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008).
Summary judgment should be granted “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

       3The Court also correctly noted and relied on the lack of defamatory meaning of
certain statements as to which Pacitti complained.

                                             4
information with a want of reasonable care to ascertain the truth. Joseph, 959 A.2d at 342

(citing Rutt v. Bethlehems’ Globe Publ'g Co., 484 A.2d 72, 83 (Pa.Super. 1984)).

Although Pennsylvania law has historically recognized a conditional privilege for

“[c]ommunications which are made on a proper occasion, from a proper motive, in a

proper manner, and which are based upon reasonable cause,” Moore v. Cobb-Nettleton,

889 A.2d 1262, 1268 (Pa.Super. 2005) (citation omitted), a plaintiff can, by establishing

negligence, show that the defendant abused any such privilege. See Banas v. Matthews

International Corp., 502 A.2d 637, 638-39 (Pa.Super. 1985). Thus, under current

Pennsylvania law, a showing of negligence is both required for a plaintiff to prove a

defamation claim and sufficient for a plaintiff to overcome the conditional privilege

provided by state law. See American Future Sys., 923 A.2d at 397. The Pennsylvania

Supreme Court recently noted that, because a plaintiff can overcome state law conditional

privileges simply by proving a defamation claim, the conditional privileges have “lost

their significance” and become “superfluous.” Id. at 397-98 (citation omitted).

       Although the District Court discussed certain communications in terms of

conditional privilege, the Court correctly analyzed them according to the dispositive

negligence standard, saying, for example, that no reasonable finder of fact could conclude

that Durr had been negligent in making them. (District Court Op. at 30.)

       Moreover, in Pennsylvania truth is an absolute defense to a defamation claim and a

defendant need only show substantial, rather than complete, truth. See Bobb v. Kraybill,



                                             5
511 A.2d 1379, 1380 (Pa.Super. 1986) (citation omitted). In its detailed opinion, the

District Court set forth the bases for its conclusion that various written communications 4

of which the Plaintiffs complain were substantially true. In effect, the Court held that no

reasonable juror could conclude that the Plaintiffs’ evidence supports a finding that the

communications were not substantially true. On this record, that conclusion is sound.

       B.     Invasion of Privacy and Ethnic Intimidation

       The District Court fully and correctly analyzed Pacitti’s invasion of privacy and

ethnic intimidation 5 claims, and no further discussion of them is required.

III.   Conclusion

       For the foregoing reasons, the judgment of the District Court will be affirmed.




        4In its analysis of Plaintiffs’ defamation claims, the District Court did not address
the allegations regarding Durr’s oral statements. Neither have Plaintiffs argued on appeal
that those statements were defamatory. Plaintiffs have, instead, limited their arguments
on the defamation claims to the various written statements. Therefore, we too have
limited our defamation analysis to Durr’s letters and memoranda.

       5 Under Pennsylvania law, an ethnic intimidation claim must be based on an
underlying offense. 18 Pa.C.S. § 2710(a); see Pennsylvania v. Robinson, 936 A.2d 107,
109 (Pa.Super. 2007). In this case, Pacitti alleges that Durr harassed him, in violation of
18 Pa.C.S. § 2709 (a)(3). The District Court correctly determined that Pacitti could not
establish harassment and therefore could not maintain his ethnic intimidation claim.

                                              6
