J-A15016-14


NON-PRECEDENTIAL DECISION                      SEE SUPERIOR COURT I.O.P 65.37



RICHARD A. SPRAGUE, ESQUIRE                           IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

JILL PORTER, PHILADELPHIA
NEWSPAPERS, LLC, PHILLY ONLINE,
LLC, PMH ACQUISITION, LLC,
PHILADELPHIA MEDIA HOLDINGS, LLC

                            Appellees                     No. 1649 EDA 2013


                       Appeal from the Order May 17, 2013
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): 2930 January Term, 2010


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

DISSENTING MEMORANDUM BY PANELLA, J.:                   FILED AUGUST 26, 2014

        The decision of the trial court in this case undermines the principles of



As I will further discuss, the accusations made by the Appellees, aimed at a

lawyer appropriately advocating in his capacity as a criminal defense

attorney, would serve to repress the defense that every citizen of the United

States is entitled. This case involves issues over which every practicing




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A15016-14


attorney in Pennsylvania should be concerned. As this Court stated in

Commonwealth v. Connolly, 689 A.2d 950 (Pa. Super. 1997):

          Effective representation of a criminal defendant entails
          more than presenting a vigorous and cogent defense.

          favorable a light as possible so that the jury may view
          him as a fellow citizen clothed in the protective shroud of
          innocence rather than a state correctional institution
          jumpsuit.

Id., at 953. I vigorously dissent from the decision of the Majority, which

affirms on the basis of                              a decision that misapplies

existing law.

       The appropriate standard of review in addressing a motion for

summary judgment is that the court must review the record in the light most

favorable to the non-moving party, and all doubts as to the existence of a

genuine issue of material fact must be resolved against the moving party.

See, e.g.,                                                                       ,



decision, certified record, and appellate briefs, I conclude that the trial court

failed to properly review the evidence of record in a light most favorable to

the non-moving party, Attorney Richard Sprague. I must therefore dissent.

       The background and contextual facts necessary to evaluate the claims

at stake in this case are largely uncontroverted.      State Senator Vincent J.

Fumo    and     an   associated   non-profit   organization,   Citizens   Alliance




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investigation, the FBI subpoenaed records and e-mails in the possession of

Citizens in the spring of 2004. Thereafter, on the evening of February 18,

2005, the FBI executed sea

and Harrisburg.

     As the investigation continued, the FBI discovered that after Citizens



Fumo had deleted e-mails and their backups.      In January 2006, the U.S.



justice charges based upon the deletion of the e-mails and their backups.

     Fumo retained Attorney Sprague to discuss the pending obstruction of

justice charges and possible defenses.    At this meeting, Fumo blamed his

information technology personnel for being overly zealous, and opined that

he was not required to preserve the e-mails until his records, as opposed to

                                                  rague and his associates

informed Fumo that his opinion was incorrect, and that if he knew he was

under investigation, he had a duty under federal law to preserve evidence.

     A few days later, Attorney Sprague met with Fumo once again to

discuss the pending charges.    At this meeting, Fumo inquired whether it

would help his defense if a lawyer had advised him that he had no duty to

preserve the e-mails unless he had been personally subpoenaed.         After

receiving an affirmative answer, Fumo left the office and returned a short

while later, stating that he had a lawyer who would state that he had given


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Fumo such advice at the relevant time. When Attorney Sprague asked for

the name of the attorney, Fumo replied that it was Robert Scandone,

Esquire.

         Attorney Sprague requested Attorney Scandone to endorse an affidavit

to the fact that he had provided such advice to Fumo. Attorney Scandone

ultimately supplied a letter to Attorney Sprague, dated February 10, 2006,

that outlined discussions Attorney Scandone had with Fumo.           In relevant

part, the letter stated:

         I told him that Citizens was a separate entity and that his
         attorneys were required to respond with responsive records. If,
         in co
         asked to cooperate, that they should do so, though they were
         under no specific obligation to do so. I further explained that if
         the grand jury sought records from his office, that he and/or his
         staff members would be subpoenaed directly. Finally, I advised
         him that because this subpoena was not directed to him or his
         office, there was no reason for him or his staff to do anything
         other than what was done in the normal course of District Office
         business.

Letter     from   Robert   Scandone,    Esq.,   2/10/06.     Attorney   Sprague

subsequently turned the letter over to the federal government.

         On February 6, 2007, then United States Attorney Patrick Meehan

(who is now a member of Congress) held a press conference outlining his

decision to charge Fumo and three of his aides on charges of fraud, tax

offenses and obstruction of justice. At the conference, Meehan distributed a

press release describing the allegations supporting the charges.




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      In response, on February 8, 2007, Attorney Sprague held a press

conference, the substance of which forms the primary point of contention

between the parties in the present appeal.           Attorney Sprague opened the




following statement:


      investigation, Senator Fumo went and sought advice from a
      lawyer, not me, but a lawyer, whether he had to change his [e-
      mail retention] policy.

      And this has been told to the government.

Transcript of the      Press Conference of Richard A. Sprague, 2/8/07,

transcribed from a recording on 4/22/11, at 26.

      Attorney Sprague and Fumo also concluded that they desired a

meeting   with   the   United   States    House      of   Representatives   Judiciary

Subcommittee on Commercial and Administrative Law and the United States

Senate Majority Whip to discuss their belief that the Justice Department was

selectively   prosecuting   Democrats.         The   Subcommittee     requested    a

memorandum supporting this belief.

      Subsequent to this meeting, Attorney Sprague sought to withdraw

from representing Fumo. However, prior to withdrawing, Attorney Sprague

committed to drafting the memorandum for the Subcommittee as a final




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J-A15016-14


drafted the memorandum, and submitted it to the Subcommittee on

November 21, 2007.

       This memo

misusing his office for partisan political purposes. The document began with

                                                                     Senator

Fumo                                                          .   (Emphasis



seeks to provide the Subcommittee with the background and context which

he believes shows how the pervasive politicization of the Department of

                             the unfair and unprecedented manner in which




appeal, in footnote 12, the memorandum states

       The last broad category of charges relates to allegations of
       conspiracy to obstruct justice. In this regard, Senator Fumo is
       alleged to have conspired to obstruct the investigation. In
       pursuing these charges, the government intentionally ignored
       documentary evidence of a long standing document retention
       policy and was followed until a search warrant was served in the


       advice for much of the relevant period.

Memorandum to Eric Tamarkin, Esq., from Sprague & Sprague, 11/21/2007,




affirm this most basic tru


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J-A15016-14


in law enforcement requires the elimination of partisan politics from its

decision making. Id., at 11.



advised him that the e-mails could be deleted so long as he or his office had

not been served with a subpoena. As a result of this testimony, the court

ruled that Fumo had waived the attorney-client privilege, and the federal

government subpoenaed Attorney Sprague to testify.           On the stand,

Attorney Sprague testified that he had never given such advice to Fumo.

See N.T., Trial, 2/18/09, at 90.   On cross-examination, Attorney Sprague



been advised by Attorney Scan                                            Id.,




                                                                Id., at 163.



to the Subcommittee, and the assertion that the evidence concerning



uncontroverted. There was no one else to dispute it. Did I believe it? Of

              Id., at 164.

     On Friday, February 20, 2009, reporter Jill Porter published a column




                                    -7-
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      Porter included references to the opinion of Robert Tuttle, professor of

professional responsibility at George Washington University School of Law.

Professor Tuttle had opined that, while it may not be illegal, it is immoral for

an attorney to lie to the public.    However, Professor Tuttle later wrote a

letter to the newspaper complaining that Porter had misleadingly used his

comments out of context to suggest that he was offering an opinion on



nor did [he] intend to offer, any opinion about the conduct of Mr. Sprague,



would be misled into believing that he had offered such an opinion, and that

the reader would not know that he was only opining about an instance

involving materially inconsistent statements.




Porter, 2/8/12, at 55. She further admitted that she had not attempted to




                                                   say.   Id., at 61 (emphasis

supplied).


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J-A15016-14


         Attorney Sprague subsequently filed a complaint against Appellees,

asserting causes of action for defamation and invasion of privacy - false

light.    Discovery ensued, and ultimately, the trial court granted Appellees

motion for summary judgment on all claims.

         Under the First Amendment to the United States Constitution, a




Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). If it

cannot be conclusively determined that the publication was false, or even if

the factfinding process is unable to resolve conclusively whether the speech

was true or false, the plai                      See id.




burden of proving by clear and convincing evidence that the offending

stateme

then provides a string of citations that ostensibly stand for the proposition



of those cases, only one of th

statement.

         The first citation in the string, Hepps v. Philadelphia Newspapers,

Inc., 485 A.2d 374, 389 (Pa. 1984), is a case in which a private, non-public

figure sued a newspaper for defamation.          On appeal, the newspaper


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conceded that state law could assign the burden of establishing truth upon a

defendant in a case concerning a non-public figure.      Thus, the Court in

Hepps was concerned with the issue of whether the application of




Amendment doctrine. The Court held that presumption of falsity still applied

and reversed the case, as the trial court had held that the presumption was

no longer valid under the First Amendment.

      The portion of the decision cited by the trial court in its opinion on

appeal in this case deals with the issue of punitive damages.    The Hepps

Court held that the traditional presumption of falsity does not contribute to



Specifically, the Court held that the court could not presume actual malice

pursuant to the traditional presumption of falsity:

      In this instance it would require presuming not only that the
      content was false, but also that the defendant at the time of
      publication knew of that falsity. This is the clearest type of
      double presumption that we have rejected.

Id., at 389.   Accordingly, the Hepps Court treated falsity as a separate

element from the state of mind of the defendant. However, the opinion does

not explicitly state a standard of proof for falsity, only for the element of

reckless disregard of the truth. See id.

                                                                   Hepps is

a problematic citation, as it was reversed by the Supreme Court of the

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J-A15016-14


United States in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767

                            Hepps II



that the plaintiff bear the burden of showing falsity, as well as fault, before

                        Id., at 776. Once again, it is clear that the element

of falsity is separate from the fault element. If any question remained, the

Supreme Court of the United States explicitly answered it in footnote 4,

which was sur

      We also have no occasion to consider the quantity of proof of
      falsity that a private-figure plaintiff must present to recover
      damages. Nor need we consider what standards would apply if
      the plaintiff sues a nonmedia defendant.

Id., at 779 n.4.    Thus, the ultimate, authoritative opinion in the Hepps

litigation explicitly disclaimed that it was setting forth a clear and convincing

standard for the burden of proof for falsity.

      Ertel v. Patriot-News Co., 674 A.2d 1038 (Pa. 1996), is another

case utilized by the trial court as authority for its assertion that Attorney

Sprague bore the burden of proving falsity by clear and convincing evidence.

The relevant passage in Ertel provides:

      Thus, it is the burden of a public figure plaintiff, such as Ertel, to


      In addition to establishing that the statement was false, the
      public figure plaintiff must also establish that the defendant




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J-A15016-14


Id., at 1041.     Once again, the opinion does not explicitly assign the clear

and convincing standard to

the Ertel

                                                                           Id., at

1042.    Thus, there was no need to apply any stan

evidence of falsity, as there was none.        And, once again, the element of

falsity is treated as separate from the element of actual malice.

        Another case cited by the trial court in support of its assertion

regarding the appropriate standard for the burden of proof on the issue of

falsity is Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).           The trial

court cites to footnote six of the Milkovich opinion, which I quote in full,

omitting only citations:

        In Hepps, the Court reserved judgment on cases involving
        nonmedia defendants and accordingly we do the same. Prior to
        Hepps, of course, where public-official or public-figure plaintiffs
        were involved, the New York Times rule already required a
        showing of falsity before liability could result.

Id., at 20 n.6.     Footnote 6 clearly does not explicitly assign a clear and

convincing standard to the burden of falsity. And again, it is clear that the

issue of falsity is treated as separate from the issue of fault or actual malice.

        The one case cited by the trial court that actually supports its assertion

that a clear and convincing standard applies to the burden of proving falsity

is Tucker v. Philadelphia Daily News, 848 A.2d 113, 127-128 (Pa. 2004).




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J-A15016-14


Pennsylvania, begins its review of existing federal case law on the First

Amendment limits on state defamation claims with the following statement:

      To prevail on their defamation claim, the Tuckers, as public
      figures, must prove, by clear and convincing evidence that the
      allegedly defamatory statements were false and that Appellant-
      newspapers either knew they were false or recklessly
      disregarded their falsity.

Id. Thus, for the first time, a case cited by the trial court for the proposition

that the appropriate standard is clear and convincing actually contains

language supporting that conclusion.

      However, there are several readily apparent reasons to doubt that the

Supreme Court of Pennsylvania intended to impose a higher evidentiary

standard than the minimum set forth by the United States Supreme Court

for compliance with the First Amendment.        First, the fact that the quoted



believe that the Supreme Court was focused on the issue of actual malice,

and not falsity. As noted above, case law has consistently treated these two

elements as distinct, and therefore discussion of the standard of proof

applicable to falsity was likely not the principle intent of the paragraph.

      Second, the Supreme Court cited to Milkovich to support the

proposition. See id. As noted previously, Milkovich does not support this

conclusion, and, in fact, explicitly rejects the notion that it addressed the

issue of the standard for the burden of proving falsity.      Furthermore, the

Tucker opinion pinpoint cites to 497 U.S. at 15 as its authority for the


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J-A15016-14


sentence at issue. The only mention of the clear and convincing standard on

page 15 of the U.S. Reporter is an acknowledgment that the clear and

convincing standard applies to the burden of actual malice borne by public

officials and public figures.

      Finally, the Supreme Court of Pennsylvania did not engage in an

extended analysis of the application of the clear and convincing standard to

the burden of proving falsity. It is unlikely that such a drastic shift in the

law would be imposed in such a flippant fashion. As a result, I conclude that

the single sentence in Tucker highlighted by the trial court does not

represent a definitive statement of Pennsylvania law.         Interestingly, this

Court has recently addressed the issue explicitly, and reached the opposite

conclusion. See Joseph v. Scranton Times L.P., 959 A.2d 322, 335 (Pa.




least, then, the question of the standard of proof applicable to Sprague in

the instant matter is an issue deserving of a more thorough analysis than a

single, conclusory sentence.

      As such, I would reject joining the Majority in affirming on the opinion

of the trial court, even if I agreed with their ultimate decision to affirm.

      I conclude, however, that the evidence of record, when viewed under

the appropriate standard of granting all reasonable inferences to the non-

moving party, is more than sufficient to establish, clearly and convincingly,


                                      - 14 -
J-A15016-14


                                   article penned by Jill Porter was false in

significant aspects. Therefore, despite the incorrect standard applied by the

trial court and the majority, reversal of the trial court is appropriate under

either standard the clear and convincing standard or the preponderance of

the evidence standard.

      As a prefatory matter to this discussion, it is important to understand

the role of attorneys in the United States justice system.       Professional

persons who choose to become attorneys subject themselves to certain

duties in excess of the common citizen regarding the quality of justice. See



confronting every attorney in the representation of a client is the

requirement of complete loyalty and service in good faith to the best of his

         Johns v. Smyth, 176 F.Supp. 949, 952 (E.D. Va. 1959). This duty



                                                                  Osborn v.

Shllinger




advocacy required by the Sixth                  Nix v. Whiteside, 475 U.S.

157, 189 (Blackmun, J., concurring in judgment) (internal citation omitted).

The Third Circuit Court of Appeals has explicitly rejected the contention that




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J-A15016-14


a criminal defense attorney must act on his personal beliefs regarding his



     While defense counsel in a criminal case assumes a dual role as


     conjectures about the guilt or innocence of his client. It is the
     role of the judge or jury to determine the facts, not that of the
     attorney.



     It is apparent that an attorney may not volunteer a mere

     innocence are perjured.       To do so would       undermine    a
     cornerstone of our system of criminal justice.

U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. (Pa.), 1977).



role in the Pennsylvania Rules of Professional Conduct. Rule 3.3 prohibits a

lawyer from knowingly making a false statement of material fact or

presenting evidence of such. However, the Rule then explicitly distinguishes

situations where a lawyer merely believes that evidence is false:

may refuse to offer evidence, other than the testimony of a defendant in a



Rule 3.3(a)(3). As far back as 1884, at the least, it was recognized that a

lawyer is not to act on merely his opinion, as opposed to certain knowledge,



assistance because in his judgment the case is unjust and indefensible,




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J-A15016-14


                                                       od, Legal Ethics, (5th

Ed. 1884), at 84.



respond to the press conference held by the United States Attorney in order

to preserve a fair jury pool.    Former Philadelphia District Attorney and

Common Pleas Judge Lynne Abraham testified that a criminal defense

attorney holds a press conference to counter the power of the prosecutor to

influence public perception through press conferences. See N.T., Deposition

of Lynne Abraham, Esq., 1/16/13, at 127.


      public to know about this case and why he or she thought the
      prosecutor brought it against him.



      What the defense attorney is going to say, my client is innocent,
                               s home in bed, he was in Ohio,


      power of the prosecutor to have all those cameras in front, make
      all those statements, and this d
      for him.

      His lawyer is his voice, whoever the defendant is: powerful and


      back against the power of the prosecution.

Id.

      In the present matter, the alleged defamatory statements were printed



used select quotes from a press conference Attorney Sprague held to

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J-A15016-14


counter the press conference held by Meehan to announce the charges




everybody here for taking the time to come and listen to



particular relevance to the present litigation, Attorney Sprague stated that



lawyer, not me, but a lawyer, whether he had to change his policy. And this

                                    Id., at 26.        As     noted    previously,



was true.

      In her article, Porter wrote that Attorney Spr




assertion that Fumo had been acting on the advice of counsel with several

additional assertions:

      So one of the most powerful attorneys in Philadelphia believes
      that it is acceptable to deliberately mislead the public on behalf
      of a client?


      of his legal obligation?

                                                            such as it is.


      unethical under the code of legal conduct, which specifically
      prohibits misleading a court but not the public.

                                    - 18 -
J-A15016-14



     But it sure seems underhanded and immoral to me.



     But not every lawyer                       would deliberately sell
     the public a bill of goods.

     Lawyers are clearly prohibited from lying in court and in sworn
     testimony before, say, a legislature.


     professor of law at George Washington University Law School.


     expert on legal ethics.




     difference between deferring and deflecting a question and



     this role from somebody offering a lawful service to somebody


     So while Sprague may feel triumphant this week about being

     either.



Porter couches many of her statements as opinions, there are several

explicit and implicit defamatory allegations of fact. At the beginning of the




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        The trial court held, and Appellees argue, that Attorney Sprague has

not adduced sufficient evidence to establish that this allegation was false. A



Dictionary, (1995), at 631                               a   false   statement



                                        Id., at 633.

allegation to be true, the statements by Attorney Sprague she was focusing

on needed to be false.

        The statements by Attorney Sprague at issue concern the same

underlying allegation by Fumo that he had received legal advice from an

attorney that he was permitted to delete e-

subpoenaed but before he was personally subpoenaed or searched. First, at



Senator Fumo went and sought advice from a lawyer, not me, but a lawyer,

                                                pt of the Press Conference of

Richard A. Sprague, 2/8/07, transcribed 4/22/11, at 26.          The second




upon (albeit erron

Memorandum to Eric Tamarkin, from Sprague & Sprague, 11/21/07, at 10

n.12.




                                    - 20 -
J-A15016-14


      Appellees argue that Porter based her allegation that Attorney Sprague

was a liar only upon the memorandum to the Subcommittee, and not his

press conference. Even accepting this as true, which I believe constitutes



motion for summary judgment, I conclude that the record establishes, under

any   standard   of   pr

memorandum to the Subcommittee was not false.             When Porter was

questioned under oath, the following exchange occurred:

      Q.    Okay. Is it a true or false statement as far as you know
      from your thorough analysis of all of the information before
      writing this article that the government ignored, the government

      upon, albeit erroneous, legal advice for much of the relevant
      period? Is that true or false?

      A.

N.T., Deposition of Jill Porter, 2/8/12, at 54-55. Thus, Porter has admitted



                                                     , as it was not false.

Granting this evidence all reasonable inferences, as we must at this stage of



article to satisfy any evidentiary burden placed upon Attorney Sprague.




difference of opinion, based on disclosed facts, about whether it is morally

acceptable for a lawyer to publicly lie on be

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Opinion, 11/1/13, at 29.         Furthermore, the trial court added a footnote to

this finding, noting that Attorney Sprague, acting in his professional capacity

representing a client in court, had argued that allegations of lies constituted

nothing more than non-actionable opinion. See id., n.12. These passages



fundamentally misapprehends the nature of this case. First, the trial court

assumes that Attorney Sprague lied; I have already shown that Porter has

admitted that he did not.            Second, the footnote referencing Attorney



reveals    that   the    trial   court   suffers   from   the   same   fundamental

misunderstanding of the role of an attorney from which Porter suffered.




law.

        The trial court found that publishing an allegation that a public figure

lied constitutes a statement of pure opinion that is non-actionable.         In so

doing, however, the trial court fails to cite any binding authority.

Accordingly, I conclude that this finding by the trial court was also in error.1

____________________________________________


1
    It is worth noting that the U.S. Supreme Court has rejected the argument


                    Milkovich, 497 U.S. at 18. Rather, the Court observed
that expressions of opinion often imply assertions of objective fact. See id.
(Footnote Continued Next Page)


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       Having established that the trial court erred in reviewing the record

pursuant to the necessary standard, I will not extend this already long



merely s

falsity.   Attorney Sprague contends that he adduced sufficient evidence of

record     to   establish   that   Porter    deliberately   misled   Professor   Tuttle.

Furthermore, Attorney Sprague argues that Porter m

quotes out of context in a manner that implied Professor Tuttle was opining



explicitly disclaimed any such opinion, I conclude that Attorney Sprague has

also satisfied any evidentiary burden of establishing that this implicit

allegation was also false.

       Turning to the issue of actual malice, I begin by noting that at least on



Attorney Sprague bears the burden of establishing actual malice by clear and

convincing evidence. However, I once again conclude that the trial court did

not utilize the appropriate standard to review the evidence of record at the

summary judgment stage.             The Supreme Court of Pennsylvania has held
                       _______________________
(Footnote Continued)


those facts are either incorrect or incomplete, or if his assessment of them is
erroneous, the statement may still imply a                               Id., at


serve as the basis of a defamation action. See id., at 20 n.7.



                                            - 23 -
J-A15016-14


that the clear and convincing standard of proof is only relevant upon post-

trial review of the record, not at the summary judgment stage.             See

Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 908 (Pa. 2007).

The only issue at the summary judgment phase is whether the plaintiff has

adduced evidence capable of establishing a dispute of material fact. See id.



evidence to allow a fact-finder to conclude that the statement at issue was



                      N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-280.

In determining whether actual malice has been established, the reviewing

court must consider the entirety of the factual record.     See Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).

     At her deposition, Porter testified that she did not know what part of

                                                       ittee was false, nor did



wrote the article. See N.T., Deposition of Jill Porter, 2/8/12, at 61. Porter




                                         Id., at 62.

     While the trial court correctly notes that a lack of investigation is not

                                                see Tucker, 848 A.2d 113,

130, review of the record indicates to me that Attorney Sprague is not


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J-A15016-14




record as a whole reveals that Attorney Sprague has adduced significant

evidence to establish that Porter purposely avoided the truth of her

allegations. See Harte-Hanks, 491 U.S. at 692.

     Here, as noted above, Attorney Sprague has adduced sufficient



defamatory statements. Also, as noted previously, Porter has testified that



Furthermore, the admittedly truthful literal interpretation, viewed in the

context I set forth above concerning the role of an attorney, is sufficient

evidence that Porter was alerted to the probability of the falsity of her




was arguing for Fumo. His explicitly qualified statements, taken in context,

were enough to establish that Porter knew he was not speaking for himself,



validity of her claims certainly gives rise to an inference that she was



     In addition, the record reveals that Professor Tuttle was not offering

an opinion on the conduct of Attorney Sprague.     See N.T., Deposition of

Robert W. Tuttle, 1/7/13, at 37. Appellees contend that the article does not




                                   - 25 -
J-A15016-14


However, it is certainly fair to infer that the quotations were a direct

comment on Attorney Sprague, as they were bracketed by paragraphs



             -like focus on evidence of lack of investigation ignored the

abundant evidence in the rest of the record that could support a finding of




misapplied the law. Initially, the trial court concludes that Attorney Sprague

cannot have suffered damages since it found that the allegations in the



erroneous, and therefore this cannot be a basis for concluding that Attorney

Sprague suffered no damages.

      Next, the trial court concludes that Pennsylvania law requires a



conclusion is not an accurate description of Pennsylvania law.          A panel of

this Court has recently observed:

      [I]n   addition   to   evidence    of   reputational   harm,   personal

      compensable for defamation. Pilchesky, 12 A.3d at 444. See
      also Brinich, 757 A.2d at 397 (quoting Restatement (Second)
      of Torts § 621, Comment at b.); 50 Am.Jur.2d Libel and Slander




                                        - 26 -
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Joseph v. The Scranton Times, L.P., 89 A.3d 251, 265-266 (Pa. Super.

2014) (Joseph II). The panel in Joseph II reversed the trial court as the

panel concluded that the trial court had not considered evidence of non-

reputational damages in reaching its non-jury verdict.     See id., at 266.

Thus, the trial court is incorrect in finding that Attorney Sprague was

required to adduce evidence of damage to his reputation.

     In its other alternative theory in support of dismissal, the trial court

asserts that Attorney Sprague was required to present expert testimony

regarding his mental and emotional injuries. First, I note that the authority

relied upon by the trial court, Kazatsky v. King David Memorial Park,

Inc., 527 A.2d 988 (Pa. 1987), did not concern defamation at all; rather, it

concerned the tort of intentional infliction of severe emotional distress. As

such, it certainly should not be relied upon in summarily dismissing Attorney




                                                                       prove

compensable damages.      Joseph II, 89 A.3d at 266 (summarizing lay

testimony of emotional harm and concluding that trial court erred in not

considering such testimony in reaching non-jury verdict); Joseph I, 959

                  plaintiff's testimony concerning damage to reputation and

emotional harm was sufficient to prove compensable damages ; Wilson v.

Benjamin


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J-A15016-14


reputational injury and emotional distress sufficient to establish damages in

defamation).



invasion of privacy    false light claim, I note that I have already set forth



correctly recognized that the First Amendment jurisprudence elucidated by

N.Y. Times and its progeny apply to false light claims. However, as noted

above, I conclude that the trial court erred in its application of the applicable

standards. For the same reasons as set forth above, I conclude that the trial

court erred in holding that the First Amendment bars relief on Attorney



      In the alternative, the trial court held that the record cannot support a

false light claim. The trial court based this result on its conclusion that false

light claims cannot be premised upon the publication of public facts about

the plaintiff, citing Strickland v. University of Scranton, 700 A.2d 979

(Pa. Super. 1997).    I agree with the trial court that Strickland certainly

stands for that proposition.   However, I note that it is, unfortunately, far

from clear that Strickland represents the law of Pennsylvania on this

matter. As Appellees argue, in their brief on appeal, prior decisions of the

Superior Court are binding precedent on a subsequent three-judge panel of

this Court. See Commonwealth v. Hull, 705 A.2d 911, 912 (Pa. Super.

1998). Thus, the Strickland panel had no authority to overrule Larsen v.


                                     - 28 -
J-A15016-14


Philadelphia Newspapers, Inc., 543 A.2d 1181, 1189 (Pa. Super. 1988),

                                                               blic, as well as




the trial court misapplied the law when it held that the record could not
                                                   2
support




____________________________________________


2
    I further observe that the Supreme Court of Pennsylvania granted a

Pennsylvania recognize a cause of action for false light invasion of privacy by
an elected official for publications discussing her public, not private,
         Krajewski v. Gusoff, 74 A.3d 119 (Pa. 2013) (Order). However,
that appeal was subsequently dismissed as moot.            See Krajewski v.
Gusoff, 84 A.3d 1057 (Pa. 2014) (Order).



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