J-A31026-16

                                  2017 PA Super 292



HOWARD RUBIN                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

CBS BROADCASTING INC. D/B/A CBS 3

                            Appellee                  No. 3397 EDA 2015


                Appeal from the Order Entered October 20, 2015
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): 1515 November Term, 2014


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

OPINION BY MOULTON, J.:                          FILED SEPTEMBER 08, 2017

        Howard Rubin appeals the October 20, 2015 order entered in the

Philadelphia County Court of Common Pleas granting the motion of CBS

Broadcasting Inc. d/b/a CBS 3 (“CBS”) for judgment on the pleadings. We

reverse and remand for further proceedings.

        This appeal arises from a news report related to Rubin’s September

2014 termination from his job as a school police officer at Multi-Cultural

Academy Charter School (“MACS”) in Philadelphia.          The central issue on

appeal is whether the substance of that report – that Rubin was fired from

his job “over allegations of child sexual abuse” – was sufficiently close to the


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A31026-16



undisputed facts to warrant judgment on the pleadings for CBS.               We

conclude that it was not.

       On September 29, 2014, during the 6:00 p.m. airing of Eyewitness

News on a television station owned and operated by CBS, anchor Chris May 1

read the following report regarding Rubin’s termination: “A police supervisor

at a Philadelphia charter school is fired over allegations of child sexual

abuse. Howard Rubin is the suspect. He is accused in the sexual abuse of

an underage male student.            Rubin worked at the Multi-Cultural Charter

School on North Broad Street.”            Opinion Pursuant to Pa.R.A.P. 1925(a),

1/20/16, at 2 (“1925(a) Op.”).

       On September 30, 2014, Eyewitness News aired the following

statement:

           We would like to correct a story we reported yesterday.
           We reported that a police supervisor at the Philadelphia
           Multi-Cultural Academy Charter School was fired over
           allegations that he sexually abused a male student at the
           school.

           According to the school’s principal, the supervisor’s
           contract was not renewed by the school. But the principal
           says the supervisor was never accused of sexual abuse of
           any student, and his separation from the school did not
           have anything to do with any allegations of abuse.



____________________________________________


       1
       May was named as a defendant in Rubin’s amended complaint but
was not named as an appellee in Rubin’s notice of appeal. Not. of App.,
10/28/15.



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           Sources now tell us that Philadelphia Police Special Victims
           Unit has no record of any investigation or charges
           involving the police supervisor.

           We apologize for the error.

Id. at 2.2

       On May 8, 2015, Rubin              filed an   amended complaint alleging

defamation and false light invasion of privacy claims against both CBS and

May. On May 18, 2015, CBS and May filed an answer with new matter. The

new matter referenced, and attached, the September 13, 2014, termination

letter to Rubin from James Higgins, MACS’ principal. The letter provided as

follows:

           Dear Officer Rubin:

           This letter is in reference to your employment at [MACS]
           as a School Police Officer.

           As we discussed this past Thursday, September 11, some
           serious allegations have been made against you, which are
           now being investigated by police. On Thursday, you were
           immediately suspended indefinitely, without compensation,
           and MACS has been conducting its own investigation of
           these allegations, independent of the police probe.

           While we have yet to complete our investigation, we have
           determined that your behavior, at the very least, and even
           by your own admission, was unbecoming of a school police
           officer and a public employee.

           You have been warned in writing about fraternizing with
           minors, and you have acknowledged that you understood
           that this type of behavior would not be tolerated again.
____________________________________________


       2
       According to Rubin’s amended complaint, the original report
remained on CBS’s website for at least two days after the correction aired.
Am. Compl., 5/8/15, ¶ 19.



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        Because of your failure to honor this expectation, we have
        decided that your employment with MACS will not be
        renewed for the 2014-2015 school year, and as a result, is
        hereby terminated, effective immediately.

        We thank you for your service to our school and wish you
        the best in your future endeavors.

Ans. to Am. Compl. with New Matter, Ex. K, 5/18/15.

     On June 7, 2015, Rubin filed a reply to the new matter. Thereafter, on

August 25, 2015, CBS and May filed a motion for judgment on the pleadings,

alleging that Rubin could not meet his burden of demonstrating that the

news report was materially false, and that because the report was

substantially true it was non-actionable as a matter of law. Mot. for Judg.

on Pleadings, 8/25/15, at 2, 8.     On September 17, 2015, Rubin filed a

response. On October 20, 2015, the trial court granted the motion, although

on different grounds than those asserted by CBS and May.        This appeal

followed.

     Rubin raises the following issue on appeal: “Upon a Motion for

Judgment on the Pleadings, did the Court of Common Pleas[] err in holding

that Rubin – a private actor – did not present a cognizable claim of

defamation or false light under any standard when the above-referenced

publication was ultimately admitted false?” Rubin’s Br. at 8.

     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


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J-A31026-16


         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.

         Kelly v. N’wide Ins. Co., [606 A.2d 470, 471-72
         (Pa.Super. 1992)] (quotations and citations omitted).

Altoona Reg'l Health Sys. v. Schutt, 100 A.3d 260, 265 (Pa.Super. 2014)

(some internal citations and quotation omitted).

I.    Defamation

      We first examine Rubin’s defamation claim. The relevant burdens in a

defamation action depend on the status of the plaintiff, the subject matter of



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J-A31026-16


the communication, and the nature of the defendant. See generally Am.

Future Sys., Inc. v. Better Bus. Bur. of Eastern Pa., 923 A.2d 389 (Pa.

2007); Lewis v. Phila. Newspapers, Inc., 833 A.2d 185 (Pa.Super. 2003).

Because the subject matter of the report is a matter of public concern and

CBS is a media defendant, Rubin has the burden of proving both the falsity

of the report as well as fault. Phila. Newspapers, Inc. v. Hepps, 475 U.S.

767, 776 (1986) (holding that in a defamation case against a media

defendant   for   speech   of   public    concern,   there   is   “a   constitutional

requirement that the plaintiff bear the burden of showing falsity, as well as

fault, before recovering damages”); see also Lewis, 833 A.2d at 191.

Rubin must prove that the report was materially false:

             The law does not require perfect truth, so long as any
         inaccuracies do not render the substance and “gist” of the
         statements untrue.      See Masson v. New Yorker
         Magazine, Inc., 501 U.S. 496, 516, 517, 111 S.Ct. 2419,
         115 L.Ed.2d 447 (1991). The “gist” of a statement is true
         if the effect upon a reader is the same regardless of the
         inaccuracy. Id.

ToDay's Housing v. Times Shamrock Commc'ns, Inc., 21 A.3d 1209,

1215 (Pa.Super. 2011).     Substantial truth “absolve[s] a defendant even if

she cannot justify every word of the alleged defamatory matter; it is

sufficient if the substance of the charge be proved true, irrespective of slight

inaccuracy in the details.” Masson, 501 U.S. at 516-17 (quotation omitted).

      As to the appropriate standard of fault, this




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J-A31026-16


           depends on whether the plaintiff is a public or private
           figure.[3] 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.

Am. Future Sys., Inc., 923 A.2d at 400.               In contrast, a private-figure

plaintiff may recover by establishing that the defendant acted negligently in

publishing the allegedly defamatory statements.              Joseph v. Scranton

Times L.P., 129 A.3d 404, 428 (Pa. 2015) (noting that where “plaintiffs are

private[-]figure plaintiffs, this Court has held that Pennsylvania requires




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       3
      Discussing the United States Supreme Court’s decision in Gertz v.
Robert Welch, Inc., 418 U.S. 323 (1974), our Supreme Court wrote that:

           the classification as a public figure arises in two
           circumstances: first, referring to an “all purpose” public
           figure, the [United States Supreme] 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.” [Gertz], 418
           U.S. at 351, 94 S.Ct. at 3013. Alternatively, a “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.”    Id.     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.” Id. 352, 94
           S.Ct. at 3013 . . . .

Am. Future Sys., Inc., 923 A.2d at 401.



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J-A31026-16


private figures to prove, at a minimum, negligence in a civil libel case”); see

also Am. Future Sys., Inc., 923 A.2d at 400.4

       The trial court recognized that “[i]n Pennsylvania, a private figure

plaintiff may prove the element of falsity by either a negligence or actual

malice standard.” 1925(a) Op. at 6. The court also stated:

               Unfortunately for [Rubin], it is of no moment whether
           or not he committed the actions alleged in his personnel
           file. The defamation requirement of “falsity” should not be
           taken at face value. Rather, [Rubin] must be able to show
           a reasonable case for either negligence or actual malice in
           Appellees’ reporting.

Id. at 8. The trial court did not address the question briefed by the parties

below – whether Rubin could establish that the report was materially false.

Rather, it found that, whether or not the report was false, Rubin could not

establish that CBS acted negligently or with actual malice. Id. at 11.5 We

disagree.

____________________________________________


       4
          With regard to damages, “although a showing of simple fault
suffice[s] to allow recovery for actual damages, even a private-figure
plaintiff [is] required to show actual malice in order to recover presumed or
punitive damages.” Hepps, 475 U.S. at 774.
       5
        The falsity and fault elements of defamation are separate inquiries,
both of which the plaintiff bears the burden of proving when the statement
in question relates to a matter of public concern. See Lewis, 833 A.2d at
191. In its motion for judgment on the pleadings, CBS made no argument
regarding Rubin’s ability to establish CBS’s negligence or actual malice. Nor
does it defend the trial court’s reasoning on appeal. Instead, it again argues
that because the report was substantially true, Rubin could not meet his
burden of demonstrating that the news report was materially false. See
Mot. for Judg. on Pleadings, 8/25/15, at 2; CBS’s Br. at 14.



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J-A31026-16


   A. Falsity

       Whether Rubin can meet his burden of proving falsity turns on whether

there exists a material difference between the report’s assertion that he was

terminated “over allegations of child sexual abuse” and the actual basis for

his termination.      The September 13, 2014 termination letter states that

Rubin was terminated for failing to honor expectations following warnings

about “fraternizing with minors.”              While the termination letter also

references “serious allegations” levied against Rubin, the letter could be read

to find that Rubin was terminated because he failed to follow a directive

prohibiting    fraternization    with    minor   students,   not   because   of   the

“allegations.” In other words, though the letter acknowledges the existence

of allegations against Rubin, it does not state that those allegations were the

basis for Rubin’s termination as the news report stated. Conversely, other

documents attached to the pleadings support the inference that Rubin was

indeed fired based on “allegations of child sexual abuse.”6 At this stage of


____________________________________________


       6
         The trial court explained the events that preceded the termination
letter as follows:

           Two days prior, three complaints were filed against
           [Rubin]. One alleged [Rubin] “sexually touch[ed]” and
           “flirt[ed]” with a male. See New Matter Exhibit G. Another
           alleged that Appellant rubbed a male’s chest, telling the
           male not to tell his mom. See New Matter Exhibit H. The
           final document was a lengthy email from a student’s
           mother to Princip[al] Higgins, alleging, among other
(Footnote Continued Next Page)


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J-A31026-16


the proceedings, however, without the benefit of pretrial discovery, we

cannot say with confidence that Rubin will be unable to establish the falsity

of the CBS report.

      The question remains, however, whether Rubin will be able to

establish that that falsity was material. In other words, was the “gist” of the

publication – that Rubin was fired because of allegations of sexual abuse –

sufficiently different from what may prove to be the truth – that he was fired

for violating a warning about “fraternizing with minors” – to have a

materially different “effect upon a viewer”? ToDay's Housing, 21 A.3d at

1215.7    While that difference may not be vast, we conclude that it is

material. In the minds of viewers of the CBS broadcast, a termination based

on an allegation of “the sexual abuse of an underage male student” surely


                       _______________________
(Footnote Continued)

          things, “taking advantage and lewd acts on a minor child
          my son REDACTED.” See New Matter Exhibit J.

          [Rubin’s personnel file] also contains a screenshot of
          Facebook messages from “PhillyHip HopCop”, [Rubin’s]
          Facebook account, to a minor user which shows repeated
          requests from PhillyHip HopCop for the minor to call him.
          The requests were made on September 6 and 8, 2014
          between the times of 11:00 am and 2:00 pm. See New
          Matter Exhibit I.

1925(a) Op. at 2 (some alterations in original).
      7
         Of course, further discovery, including depositions of relevant school
officials, may very well establish that, despite Principal Higgins’ post-
publication denial of the report’s accuracy, the basis for Rubin’s termination
was indeed the allegations of abuse.



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J-A31026-16


could carry a greater sting than a termination for violating a personnel

directive, even a directive about “fraternizing with minors.” Notably, for at

least some viewers, the former could suggest that the school had

investigated    and   credited   the   allegations    of   abuse,     something    the

termination letter itself expressly disavows.

   B. Fault

      Based on the foregoing analysis, we also disagree with the trial court’s

determination that “the facts could not reasonably support a finding of

negligence     or   malice   because   [Rubin’s]     personnel      file   corroborated

Appellees’ communication.” 1925(a) Op. at 11. The pleadings and attached

documents do not make clear either the nature or the source of the

information CBS possessed prior to publication.            Accordingly, as with the

falsity issue, there is not enough information at this stage in the proceedings

to say with confidence that Rubin will be unable to establish that CBS acted

negligently or maliciously in publishing the report.                  If the as-yet-

undetermined facts support Rubin’s claim that he was not terminated “over

allegations of child sexual abuse,” then he may be able to establish CBS’s

negligence or malice in publishing the report. Of course, even if he is able to




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J-A31026-16


prove falsity, discovery may establish that he is unable to prove that CBS

acted with the requisite fault.8

II.    False Light

       We next turn to Rubin’s claim for false light invasion of privacy, which

the trial court concluded must also fail. In Pennsylvania, a claim for false

light invasion of privacy requires that: “(a) the false light in which the other

was placed would be highly offensive to a reasonable person, and (b) the

actor had knowledge of or acted in reckless disregard as to the falsity of the



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       8
         The trial court focused on the documents in Rubin’s personnel file,
which it held preclude a finding that CBS acted with fault. But CBS
acknowledges that it did not obtain Rubin’s personnel file until after Rubin
filed suit. CBS’s Br. at 11. Therefore, the documents themselves cannot
stand as an absolute bar to a finding that CBS acted negligently or with
actual malice in publishing the report. The trial court’s opinion, responding
to Rubin’s reliance on Principal Higgins’ post-publication denial, focused on
the Pennsylvania Supreme Court’s decision in Curran v. Philadelphia
Newspapers, Inc., 439 A.2d 652 (Pa. 1981). In Curran, the Court found
that “neither the pre-publication denials nor the refusal to comment served
to cast sufficient doubt upon the veracity of the . . . publication to make the
issue of actual malice a question for a jury.” Id. at 660. The Court stated
that the pre-publication statements, when weighed against information
provided by the newspaper’s source, “could reasonably have been dismissed
as subjective statements not impeaching the integrity of the information.”
Id. Here, the trial court, after emphasizing that Principal Higgins contacted
CBS only after the broadcast, opined that even if Principal Higgins had
contacted CBS before publication, his denial could have been dismissed by
CBS as a subjective statement not impeaching the integrity of Rubin’s
personnel file. 1925(a) Op. at 10. While the trial court may be correct that
a post-publication denial sheds little light on the publisher’s fault at the time
of publication, that observation does not alter our analysis.




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J-A31026-16


publicized matter[9] and the false light in which the other would be placed.”

Krajewski v. Gusoff, 53 A.3d 793, 805–06 (Pa.Super. 2012) (quoting

Restatement (Second) of Torts § 652E). “[U]nlike the law of defamation, . .

. false light invasion of privacy offers redress not merely for the publication

of matters that are provably false, but also for those that, although true, are

selectively publicized in a manner creating a false impression.” Id. at 806.

       The trial court concluded that the “admitted facts cannot support a

finding of knowledge of or reckless disregard as to the falsity of the

publicized matter” because CBS’s report accurately “summarized [Rubin’s]

termination letter, which was found in [Rubin’s] personnel file that contained

multiple corroborating documents.” 1925(a) Op. at 13. We disagree. As we

stated in our analysis of Rubin’s defamation claim, there is not enough

information at this stage in the proceedings to say with confidence that

Rubin will be unable to establish that CBS acted with actual malice.

       Accordingly, we reverse the trial court’s order granting CBS’s motion

for judgment on the pleadings and remand for further proceedings

consistent with this opinion.

       Order reversed. Case remanded. Jurisdiction relinquished.


____________________________________________


       9
         The required standard of fault in a false light claim is thus actual
malice. See Time, Inc. v. Hill, 385 U.S. 374, 387 (1967) (defining actual
malice as “knowledge that the statements are false or in reckless disregard
of the truth”).



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J-A31026-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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