J-A09014-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. DOUGHERTY,                  IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA
                   Appellant

                   v.

PHILADELPHIA NEWSPAPERS, L.L.C.,
HAROLD JACKSON, PAUL DAVIS, DAVID
BOYER, RUSSELL COOKE, MELANIE
BURNEY, TONY AUTH, AND MONICA
YANT KINNEY,

                         Appellee                    No. 1635 EDA 2014

                Appeal from the Order Entered April 28, 2014
            In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): March Term, 2009 No. 004790


BEFORE: GANTMAN, P.J., BOWES, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 14, 2015

      John J. Dougherty appeals from the April 28, 2014 order granting

summary judgment to the defendants in this defamation lawsuit. We affirm.

      On   March   30,   2009,   Dougherty    instituted   this     action    against

Philadelphia   Newspapers,    L.L.C.   and   seven   of    its    employees      (the

“Newspaper”) based upon articles published in the Philadelphia Inquirer,

which was owned by Philadelphia Newspapers, L.L.C.               Dougherty averred

that three articles, two of which were published on April 13, 2008, and one

of which was published on April 17, 2008, were defamatory.

      The facts leading up to this lawsuit are set forth below.              In 2007,

former State Senator Vincent J. Fumo of Philadelphia resigned his seat in the
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Pennsylvania   Senate,   First   Senatorial   District,   which   was   based   in

Philadelphia. In early March, 2008, Dougherty announced his candidacy for

the Democratic Party's nomination for the seat vacated by Senator Fumo.

Dougherty was the business manager of the International Brotherhood of

Electrical Workers Local 98, Chairman of the Board of the Philadelphia

Redevelopment Authority, President of the Philadelphia Mechanical Trades

Council, Vice President of the Philadelphia Building Trades Council, Vice

President of the Philadelphia AFL-CIO, Board Member of Independence Blue

Cross, Board Member of the Penn's Landing Corporation, President of the

Pennsport Civic Association, and a Commissioner of the Delaware River Port

Authority.

      The Newspaper published articles about various candidates, including

Dougherty. The first article involved in this defamation suit was an editorial

appearing in print and online on April 13, 2008, with the headline, “For First

District State Senate Choose Farnese.” It stated:

      Perhaps nobody can do for Philadelphia what retiring state Sen.
      Vincent J. Fumo did for this city when he was at his best. But
      what's scary about the three-candidate race in the Democratic
      primary to replace Fumo is that union official John Dougherty
      appears fully capable of matching the incumbent at his indictable
      worst.

      The powerful Fumo is retiring after 30 years in Harrisburg, and
      faces a federal corruption trial in the fall. His withdrawal created
      an open seat to represent the city's First Senate District, which
      stretches from South Philly to Center City to the lower
      Northeast.




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     Dougherty, 47, business manager of Local 98 of the
     International Brotherhood of Electrical Workers, leads this race -
     in recent polls, and in denials.

     He denies sending goons to intimidate people whenever it suits
     his union's interests. He denies accepting valuable favors from a
     lifelong friend and union colleague, as outlined in a federal
     criminal indictment against the friend. He denies that the feds
     found anything incriminating when they searched his home. He
     denies that his petulant two-day labor walkout at the
     Pennsylvania Convention Center in 2004 hurt the city's ability to
     attract business. He denies that his leadership has thwarted
     minorities from gaining high-paying union jobs.

     With the current state senator headed for trial, Philadelphia can't
     afford to send Dougherty to Harrisburg. And the candidate with
     the best chance of defeating the mercurial, influential labor
     leader in the Democratic primary is LARRY FARNESE.

     [At this point, the editorial article discusses Mr. Farnese and
     another candidate for the seat, Anne Dicker, for five
     paragraphs.]

     With the district’s overwhelming Democratic edge in voter
     registration, this primary is likely to decide the next state
     senator. Dougherty would be a poor choice, beholden to the
     union first and the district whenever it didn’t conflict with his
     labor interests. In the anything-goes atmosphere of Harrisburg,
     it is difficult if not impossible to envision Dougherty staying out
     of the wrong headlines.

     For those reasons, the Inquirer endorses Farnese for state
     Senate.

Complaint, 3/23/11, at Exhibit A.

     Dougherty averred in his complaint that this article was defamatory

because it stated as a fact or implied that Dougherty “had previously

engaged in and/or if elected to the Pennsylvania Senate would continue to




                                    -3-
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engage in criminal conduct on a scale at least equal to that outlined in the

indictment against former Senator Fumo.” Id. at ¶ 20.

      On the same day, April 13, 2008, an article was published in the paper

and online, entitled “Dubious Judgment It’s Dougherty's gift,” and it read:

      Say you're a powerful union boss who chairs the city's
      Redevelopment Authority, serves as a Delaware River Port
      Authority commissioner, presides over a South Philadelphia
      waterfront neighborhood group, and dreams of being mayor or,
      for now, state senator.

      It’s 2005. You earn $175,000 that year and decide to renovate
      your home.

      Do you (a) rent a place for the duration of the messy six-month
      project or (b) live for free at a luxury waterfront apartment
      building owned by a prominent developer?

      John Dougherty chose b.

      Personally, if I wore as many hats as Dougherty does and
      wanted to hold office, I'd jump into the Delaware before taking a
      gift like that.

      Dougherty, business manager for Local 98 of the International
      Brotherhood of Electrical Workers and Democratic candidate for
      the First District’s state Senate seat, seems to have no problem
      with sweet deals that to voters may taste sour.

      In 2003, according to federal authorities, he bought a North
      Wildwood condo from an electrician pal for $24,000 less than
      what you or I would have had to pay because he could, never
      mind that the law forbids contractors from plying union leaders
      with gifts.

      Investigators are also concerned whether, a year later, the same
      contractor did work gratis on Dougherty's home in South Philly.




                                    -4-
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     Now we learn that during the renovation, developer Peter DePaul
     gave Dougherty a key to a $3,000-a-month unit in the Dockside
     Luxury Apartments.

     Inside the complex - which resembles a cruise ship and boasts of
     offering "a sea of amenities" - Dougherty had granite
     countertops, a private terrace, and the use of an indoor pool.

     This was a freebie, Dougherty freely acknowledged.        Now if it
     was only clear why he had taken it in the first place.

     Home away from home Dougherty referenced his luxury living on
     a federal financial disclosure form that labor leaders must file.

     In 2004, for instance, he received a "holiday gift basket" from
     the law firm Jennings Sigmond.

     “The gift basket," he acknowledged, "was shared with the staff
     of Local 98.”

     In 2005, Dougherty reported that his family "occasionally stayed
     overnight (estimated between 10 and 20 nights) in an apartment
     of Peter DePaul" at the Dockside.

     That answer raises more questions. Which was it, 10 days or 20?

     If the stay was really that short, why didn't Dougherty get a
     hotel room? Surely he knows there's a Hyatt next door to the
     Dockside. Surely he could have afforded it.

     And why, of all his friends, and they are legion, did he take a gift
     from this one?

     DePaul, the developer, later invested in the Foxwoods slots
     parlor planned for the city’s Pennsport section. Dougherty, in
     addition to his day job as a labor leader and his work with the
     Redevelopment Authority, is president of the Pennsport Civic
     Association whose members have serious concerns about the
     casino.

     Informed decisions DePaul [sic] told my colleague Craig McCoy
     that Dougherty repeatedly had asked to pay for the stay, but
     that the developer wouldn't hear of it.


                                    -5-
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      I wanted to share Dougherty's side of the story, but he and his
      staff are refusing to speak to me or any of my colleagues until
      after the April 22 primary.

      Via email, a Dougherty spokesman accused The Inquirer of a
      "premeditated effort to smear John and damage his electability."

      That's unfortunate, because Dougherty wants voters to trust
      him, yet he doesn't trust voters to review his history and make
      an informed decision.

      Dougherty is happy to be the well-known front-runner, but
      blinded by the spotlight it brings.

      The reality is, of the three Democrats vying for the nomination,
      only one runs a union that has been repeatedly cited for labor
      intimidation and Election Day thuggery.

      Only one candidate has a long record of politicking and being in
      the public eye.

      Only one is under federal investigation.

      Dougherty's campaign motto is “Real change. Real results.” It's
      hard to imagine he'd achieve either in office if he won't even
      discuss the gifts he has been given, and why.

Id. at Exhibit B.

      In his complaint, Dougherty averred that the statements in this second

April 13, 2008 article were defamatory since they falsely implied that

Dougherty “accepted a bribe from Mr. DePaul[, a contractor]. In particular,

these statements falsely imply that Mr. DePaul provided Mr. Dougherty with

a luxury apartment in exchange for Mr. Dougherty's agreement to use his

influence over the Pennsport Civic Association to assist Mr. DePaul with the

Foxwoods slots parlor planned for Pennsport.” Id. at ¶ 22.


                                     -6-
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     The final article was in the editorial section, was published April 17,

2008, and read:

                  Editorial: A Closer Look at John Dougherty
                              Which constituents?

     John Dougherty has some really good friends.

     One unrelated pal, Donald "Gus" Dougherty, allegedly did more
     than $100,000 worth of work at John's house free.

     Another friend, Peter DePaul, a well-connected developer, let
     Dougherty stay at DePaul’s $3,000-a-month waterfront
     apartment free while Dougherty's home was undergoing a
     $400,000 renovation.

     Federal prosecutors are looking at these relationships as part of
     a broader probe of the union boss. He has not been charged
     and denies any wrongdoing. But voters in the first District,
     where Dougherty is running for state Senate, should take a look
     as well.

     Here are some questions they should be asking: Who else does
     Dougherty owe? More important, given Dougherty’s ties to so
     many organizations: If elected, whom will he really represent in
     Harrisburg?

     To be sure, Dougherty already wears many hats.

     He is head of Local 98 of the International Brotherhood of
     Electrical Workers, which paid him $182,000 last year and
     employs one of his daughters.

     Dougherty’s union started a charter school, the Philadelphia
     Electrical and Technology Charter High School, where another
     daughter works as the director of special projects.

     He is chairman of the city's Redevelopment Authority, which
     steers tens of millions in government funding into projects in
     blighted areas.




                                    -7-
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      Dougherty is also on the board of the Delaware River Port
      Authority, which has invested millions in area projects.

      He is president of the Pennsport Civic Association, where he
      lives.

      Until early this year, Dougherty was on the board of
      Independence Blue Cross, which is in the process of merging
      with the state's other insurance giant, Highmark.

      If elected, Dougherty may exit some of the posts, but he plans
      to keep his six figure union job. That alone seems fraught with
      potential conflicts of interest.

      What side will he take on labor issues that come up at the state-
      owned convention center?

      What about the inherent tension between nearby residents and
      the developer/investors of the two slots parlors planned for the
      city?

      DePaul, who let Dougherty stay at his waterfront pad free, is an
      investor in the Foxwoods casino planned in Dougherty's
      Pennsport neighborhood.

      Dougherty’s union, of course, favors building things because it
      creates jobs. But many Pennsport residents, and others that
      Dougherty seeks to represent in the Senate, oppose the casinos.

      Dougherty says he is pro-neighborhood and supports the
      casinos. It's tough to have it both ways.

      And if elected, how well would Dougherty work with Mayor
      Nutter on Philly issues in Harrisburg? Dougherty worked hard to
      keep Nutter from getting elected last year. In fact, the city
      ethics board is investigating whether his union was behind a
      campaign flyer that said a vote for Nutter is a vote for “racial
      profiling.” The bigger question remains: If elected to the state
      Senate, whom will Dougherty really represent?

Id. at Exhibit C.




                                    -8-
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      In his complaint, Dougherty claimed that the statements in this article

were defamatory since “they also falsely imply that Mr. Dougherty accepted

a bribe from Mr. DePaul. In particular, these statements falsely imply that

Mr. DePaul provided Mr. Dougherty with a luxury apartment in exchange for

Mr. Dougherty’s agreement to use his influence over the Pennsport Civic

Association to assist Mr. DePaul with the Foxwoods slots parlor planned for

Pennsport.” Id. at ¶ 25.

      On April 27, 2011, the Newspaper filed an answer to the complaint.

The lawsuit was stayed due to the bankruptcy filing of the corporate

defendant. On October 23, 2012, Dougherty moved to disqualify counsel for

the Newspaper, and the motion was denied. The Newspaper filed a motion

for summary judgment on December 10, 2012. Dougherty took an appeal

from the order denying his motion to disqualify the Newspaper’s law firm,

and, on February 11, 2014, we reversed based upon a finding that counsel

had a conflict of interest. Dougherty v. Philadelphia Newspapers, LLC,

85 A.3d 1082 (Pa.Super. 2014).

      The trial court re-assumed jurisdiction, and, on April 28, 2014, it

granted the Newspaper’s motion for summary judgment.           The trial court

concluded that no statement in any article was capable of defamatory

meaning as a matter of law. It ruled that any statement contained in the

articles either was true or was an opinion premised upon true facts.       The

court ruled that the articles in question did not state or imply that Dougherty


                                     -9-
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committed crimes in the past or would do so in the future.       This appeal

followed. Dougherty raises the following averments of trial court error:

      A. Whether the trial court erred by granting defendants’ motion
      for summary judgment because there are genuine issues of
      material fact regarding the falsity of the defamatory statements
      and implications made in the allegedly defamatory publications.

      B. Whether the trial court erred in granting defendants' motion
      for summary judgment because there is a genuine issue of
      material fact whether defendants' statements at issue are not
      opinions but are statements which are defamatory in nature or
      imply defamatory facts and not simply non-actionable opinions.

      C. Whether the trial court erred in granting defendants' motion
      for summary judgment by acting as fact-finder and determining
      that the FBI Affidavit's allegations were proven facts and thus
      that no genuine issue of material fact existed regarding the
      falsity of the defamatory statements and implications made in
      the allegedly defamatory publications.

      D. Whether the trial court erred by holding that statements in
      the publications at issue were incapable of defamatory meaning.

      E. Whether the trial court erred in prematurely granting
      summary judgment on the basis that plaintiff had failed to prove
      the defamatory statements were untrue before the relevant
      discovery had been completed.

Appellant’s brief at 3.

      Initially, we observe that when this Court reviews the grant of

summary judgment, our standard and scope of review are as follows:

         Our scope of review is plenary, and our standard of review is
      the same as that applied by the trial court. Our Supreme Court
      has stated the applicable standard of review as follows: An
      appellate court may reverse the entry of a summary judgment
      only where it finds that the lower court erred in concluding that
      the matter presented no genuine issue as to any material fact
      and that it is clear that the moving party was entitled to a


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      judgment as a matter of law. In making this assessment, we
      view 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. As our
      inquiry involves solely questions of law, our review is de novo.

          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 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.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.Super.

2015) (en banc).

      A cause of action for defamation in this Commonwealth is now codified

in § 8343 of The Uniform Single Publication Act, 42 Pa.C.S. §§ 8341-8345,

as follows:

      (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.




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           (7) Abuse of a conditionally privileged occasion.

     (b) Burden of defendant.−In an action for defamation, the
     defendant has the burden of proving, when the issue is
     properly raised:

     (1) The truth of the defamatory communication.

     (2) The privileged character of the occasion on which it
     was published.

     (3) The character of the subject matter of defamatory
     comment as of public concern.

42 Pa.C.S. § 8343.

     While the statute places the burden on a defendant to establish that a

defamatory communication is true, the plaintiff bears the burden of proving

a statement’s falsity in certain circumstances.       As this Court clarified in

applying United States Supreme Court precedent:

         “If the statement in question bears on a matter of public
     concern, or the defendant is a member of the media, First
     Amendment concerns compel the plaintiff to prove, as an
     additional element, that the alleged defamatory statement is in
     fact false.” Lewis v. Philadelphia Newspapers, Inc., 833
     A.2d 185, 191 (Pa.Super. 2003). “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.” Id.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 260-61 (Pa.Super. 2014),

appeal granted on other grounds, 105 A.3d 655 (Pa. 2014); Philadelphia

Newspapers,     Inc.   v.   Hepps,    475     U.S.   767   (1986)   (under   First




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Amendment, if a media article relates to matter of public concern, private

plaintiff has burden of proving defamatory statement is false).

      The seminal case applying First Amendment protection to newspaper

articles that criticize public officials is New York Times Co. v. Sullivan,

376 U.S. 254 (1964). Therein, the New York Times published an editorial

advertisement purchased by leaders and supporters of the 1960’s civil rights

movement.     The editorial advertisement, inter alia, outlined violent and

oppressive activities undertaken by individuals in Montgomery, Alabama, to

suppress the movement as well as wrongful police conduct and criminal

actions directed at its leader, Dr. Martin Luther King.           Some of the

statements were false.    Sullivan, an elected commissioner of the City of

Montgomery, Alabama, brought a civil libel action against the newspaper

and people whose names appeared in the editorial.       He averred that the

newspaper article implied that he had participated in the responses to Dr.

King’s protests and was involved in illegal intimidation and violence.

Sullivan obtained a jury award of $500,000.

      The United States Supreme Court accepted review of the case to

determine if the jury award conflicted with the newspaper’s constitutional

right to freedom of speech.     It observed: “The general proposition that

freedom of expression upon public questions is secured by the First

Amendment has long been settled by our decisions,” and it concluded that

the article in question related to a matter of public concern. Id. at 269. The


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High Court continued that, when a media article is critical of the official

conduct of public officials, the First Amendment mandates that the public

official prove that the statement was false as well as that the media

defendant acted with actual malice in making the statement. The Sullivan

Court concluded that the evidence presented to the jury therein was

insufficient to prove actual malice.    It therefore reversed the judgment

against the newspaper.

      The United States Supreme Court later articulated that a newspaper

enjoys Sullivan protections in commenting upon candidates for public office.

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971). The Monitor Court

observed that the First Amendment right to free speech was designed to

“assure unfettered interchange of ideas for the bringing about of political

and social changes desired by the people,” and held that it has “its fullest

and most urgent application precisely to the conduct of campaigns for

political office.” Id. 272

      Of particular import here is the fact that the court, not a jury, has the

role of deciding initially whether a statement is capable of defamatory

meaning. As we delineated in Kurowski v. Burroughs, 994 A.2d 611, 616

(Pa.Super. 2010), “It is the function of the trial court to determine, in the

first instance, whether the communication complained of is capable of

defamatory meaning. Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d

108, 110 (1983); Braig v. Field Communications, 310 Pa.Super. 569, 574


                                    - 14 -
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n. 2, 456 A.2d 1366, 1369 n. 2 (1983).” Only if the court determines the

existence of a defamatory meaning is the case submitted to a jury.

Kurowski, supra; see also Baker v. Lafayette College, 532 A.2d 399,

402 (Pa. 1987) (“In order for a statement to be considered libelous or

slanderous, the trial court must, in the first instance, make a determination

as to whether the communication complained of can be construed to have

the defamatory meaning ascribed to it by the complaining party.”).

     Dougherty suggests that this long line of cases has been abrogated.

Specifically, he maintains that, “The Pennsylvania Supreme Court has made

clear that summary judgment in a defamation action, as with other actions,

is reserved only for those limited cases where none of the material facts is

disputed.” Appellant’s brief at 18. In this respect, he relies upon Weaver

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

     In Weaver, the newspaper published a letter by Oscar Brownstein

wherein Brownstein reported that Weaver, a public figure, raped a woman

and had been arraigned for sexually abusing women and children. Weaver

told Brownstein that these accusations were false, that he had not raped

anyone, and that he was never arraigned for sexual abuse.        Brownstein

nevertheless re-published the entire letter, including the accusations in

question, on a website.     The trial court granted Brownstein summary

judgment based upon a finding that there was no proof of actual malice.




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      Our   High   Court   reversed,    ruled   that   the   republication   of   the

purportedly defamatory statements was relevant to actual malice for

purposes of the first publication, and held that there were issues of material

fact as to whether actual malice existed.        It observed that the finding of

whether actual malice exists is normally a jury function, even in a

defamation case involving a public figure.         Thus, the Weaver decision

explicitly pertained to whether the defendant had actual malice when he

published the defamatory remark. Weaver decidedly did not alter the law

that it is the trial court’s function to decide whether a publication is capable

of defamatory meaning.

      In determining whether a statement is capable of defamatory

meaning, the trial court must also ascertain whether the statements

constitute opinions.   The question of “[w]hether a particular statement

constitutes a fact or an opinion is a question of law for the trial court to

determine.” Mathias v. Carpenter, 587 A.2d 1, 3 (Pa.Super. 1991).

Hence,

          In determining whether [a publication is] capable of
      defamatory meaning, a distinct standard is applied [when] the
      publication is of an opinion. Veno v. Meredith, 357 Pa.Super.
      85, 515 A.2d 571, 575 (1986), appeal denied, 532 Pa. 665, 616
      A.2d 986 (1992). “A statement in the form of an opinion is
      actionable only if it may reasonably be understood to imply the
      existence of undisclosed defamatory facts justifying the
      opinion. A simple expression of opinion based on disclosed facts
      is not itself sufficient for an action of defamation.” Id. (internal
      citations omitted); see also Neish v. Beaver Newspapers,
      Inc., 398 Pa.Super. 588, 581 A.2d 619, 622-624 (1990). appeal


                                       - 16 -
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      denied 527 Pa. 648, 593 A.2d 421 (1991) (editorial criticizing
      the way appellant handled his job and suggesting replacing him
      was an opinion not based on undisclosed defamatory facts and,
      therefore, was not actionable. The Court found that while the
      statements in the editorial “might be viewed as annoying and
      embarrassing, they were not tantamount to defamation.”).

Kurowski, supra at 618 (emphasis in original).

      This principle is in conformity with Restatement (Second) of Torts §

566, Expression of Opinion. See Mathias, supra (applying § 566).                  That

section provides: “A defamatory communication may consist of a statement

in the form of an opinion, but a statement of this nature is actionable only if

it implies the allegation of undisclosed defamatory facts as the basis for the

opinion.”

      The   articles   in    question    related   that   federal   authorities   were

investigating Dougherty for illegally accepting favors from contractors.            In

them, the Newspaper outlined that the federal inquiry encompassed

allegations that Dougherty bought a condominium for less than fair market

value from one contractor.              That contractor was Donald Dougherty

(“Donald”), who is no relation to Dougherty and who owned Dougherty

Electric Inc. (“DEI”).      The federal inquiry also delved into allegations that

Dougherty received free home renovations from Donald.               The articles also




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maintained that Dougherty accepted a free apartment from a different

contractor, Mr. DePaul.1

        The trial court herein concluded that the contents of the articles were

true since Dougherty either admitted to or was under federal investigation

for the events in question.                    Dougherty, on appeal, presents no specific

challenge to this finding. He appears to dispute that he was under federal

investigation while also maintaining that the federal investigation was not

relevant to his argument on appeal.                   Dougherty’s brief at 19 (“Even if, as

[the trial court] contends (and Dougherty disputes), there were no disputed

issues of fact as to whether Dougherty was under federal investigation, that

is beside the point.”).              Dougherty maintains that the “statements at issue

are defamatory for suggesting that Dougherty actually committed crimes,

not just that he was being investigated.” Id. (emphasis in original; footnote

omitted).

        We disagree with Dougherty’s positions that the federal investigation is

irrelevant herein and that there is a genuine issue of material fact that he

was under federal investigation. The articles’ statements were derived from


____________________________________________
1
  In its motion for summary judgment, the Newspaper established the
following. Dougherty filed a financial disclosure form in which he outlined
that he stayed rent-free in the apartment provided by Mr. DePaul while
renovations were being performed on Dougherty’s house; thus, any
statements in the articles outlining that event are true. Dougherty was not
under federal investigation for that action, and the newspaper did not
suggest that he was.


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or were opinions premised upon the federal investigation, which is therefore

critical to resolution of this matter.           The Newspaper presented documents

establishing that Dougherty was being investigated for violations of federal

law. Kathleen A. O’Hanlon, special agent for the FBI, executed an affidavit

in support of a search warrant for Dougherty’s home.2 That fifty-four page



____________________________________________
2
  The search warrant and supporting affidavit were initially sealed by the
judge who issued the warrant. United States v. Dougherty, 2015 WL
574142 (3rd Cir. 2015) (unpublished memorandum).           After the federal
government initiated its criminal prosecution against Donald, it filed a brief
in that action, and the affidavit for the search of Dougherty’s home was
inadvertently attached to the brief. Id. The affidavit was publicly accessible
from January 30, 2008, until December 17, 2012 in the Donald Dougherty
federal matter. Id. The Newspaper filed its motion for summary judgment
herein on December 10, 2012, when the affidavit was still publicly available.
On December 17, 2012, the federal government’s request to have the FBI
affidavit removed from Donald Dougherty’s file and returned to it was
granted. Id.

     In this lawsuit, Dougherty moved to seal the motion for summary
judgment and to strike any mention of the FBI affidavit. On January 2,
2013, the trial court provisionally sealed the motion for summary judgment.
When the trial court granted the Newspaper summary judgment, it denied
Dougherty’s motion to strike the FBI affidavit and unsealed the motion for
summary judgment.

       On May 1, 2014, Dougherty filed a motion in the federal criminal
action against Donald and asked the federal district court for an order
declaring the affidavit to be still subject to seal protection and directing that
the state court be required to seal the Newspaper’s summary judgment
motion and any other filed document referencing or attaching the affidavit.
Id. Dougherty’s motion was denied, and the Third Circuit Court of Appeals
subsequently affirmed the denial of Dougherty’s request. Id. Dougherty
filed a petition for writ of certiorari from the Third Circuit’s decision, John J.
Dougherty v. Philadelphia Newspapers LLC, et al. (U.S. June 11,
2015) (No. 14-1452), and certiorari was denied, Dougherty v.
(Footnote Continued Next Page)


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affidavit outlined that Dougherty had been under FBI investigation for his

receipt of monetary benefits from Donald, whose company used union

workers from Dougherty’s union.                  It is a violation of federal law for union

leaders to accept favors from organizations contracting with the leader’s

union. 29 U.S.C. § 186. The affidavit also stated that Dougherty was being

investigated for committing federal income tax evasion and filing false

federal tax returns in contravention of 26 U.S.C. §§ 7201, 7206(1).

        The affidavit set forth two relevant instances when Dougherty

accepted financial favors from Donald. Special Agent O’Hanlon presented

detailed information as to why she had probable cause to believe

        JOHN J. DOUGHERTY, Business Manager of the International
        Brotherhood of Electrical Workers, Local 98, unlawfully received
        payments of something of value from Donald Dougherty, Jr.,
        owner/operator of Dougherty Electric, Inc. (DEI), an electrical
        contracting business that employs members of the International
        Brotherhood of Electrical Workers, Local 98 (hereinafter "IBEW
        Local 98”). As set forth in detail in this affidavit, JOHN J.
        DOUGHERTY's 1933 E. Moyamensing Avenue, Philadelphia, PA
        home was completely renovated by Donald Dougherty, Jr., DEI
        and Fastrack Construction ("FTC"), a general contractor that
        subcontracts employee members of IBEW Local 98 and that took
        over for DEI to complete the renovation work. The renovations
        were worth more than $400,000. I have probable cause to
        believe that JOHN J. DOUGHERTY did not pay Donald Dougherty,
        Jr. and/or DEI for their work and made only partial payment.

Motion for Summary Judgment, 12/10/12, at Exhibit A, Affidavit In Support

of a Search Warrant of the Premises Located At 1933 E. Moyamensing
                       _______________________
(Footnote Continued)
Philadelphia Newspapers, 2015 WL 3646732, 83 USLW 3915 (October 5,
2015).


                                                 - 20 -
J-A09014-15



Avenue, Philadelphia, Pa, 19148, 11/9/06, at page 1.        Special Agent

O’Hanlon also provided specifics leading her to acquire probable cause to

believe that “JOHN J. DOUGHERTY purchased from Donald Dougherty, Jr. a

condominium at 775 E. Allen Drive, Unit 101A, North Wildwood, NJ at below

fair market price.” Id. The FBI concluded that the unit in question had a

fair market value of $275,000, based upon a comparison with other units

inside the same building, a loan that Dougherty secured to pay for the

condominium, and an appraisal of the property obtained by the lender prior

to issuing the loan. Dougherty paid Donald $206,000 for the condominium.

The affidavit outlined why Special Agent O’Hanlon had probable cause to

believe that evidence of crimes would be discovered inside Dougherty’s 1933

East Moyamensing Avenue home.

     In the record is a summary of an interview that the FBI conducted with

Donald.   During that interview, Donald claimed that Dougherty paid him

$250,000 in cash for the renovation work performed at 1933 East

Moyamensing Avenue. Additionally, the certified record contains notes from

a May 22, 2006 interview that the FBI conducted of Dougherty, who was

questioned about purchasing the condominium for less than fair market

value and whether he paid for the renovation work on his home.

     A copy of a 100 count indictment returned against Donald by a federal

grand jury is attached to the Newspaper’s motion for summary judgment.

After that indictment was returned, the federal government proceeded with


                                  - 21 -
J-A09014-15



a criminal prosecution, wherein Donald pled guilty to ninety-nine of those

counts.     See United States v. Dougherty, No. 2-07-CR-00361-001

(ED.Pa. June 26, 2007).    The indictment set forth the following.    Donald’s

company, DEI, was a party to a collective bargaining agreement with the

“International Brotherhood of Electrical Workers Local 98 (‘IBEW Local 98’).”

Motion for Summary Judgment, 12/10/12, at Exhibit B, Indictment filed in

the United States District Court for the Eastern District of Pennsylvania,

6/26/07, against Donald J. Dougherty at page 2, ¶ 2. Donald was accused

of making unlawful payments to a union official, specifically “IBEW Local 98

Official #1 [who] was responsible for the management and supervision of

the field activities and business office, and for conducting the daily business

of IBEW Local 98.” Id. at page 12, ¶ 2.

      The indictment specified the following.      Donald sold IBEW Local 98

Official #1 a condominium, which was Unit 101A, Allen Drive, North

Wildwood, New Jersey, for $206,000.          Prior to the sale, Donald had his

employees perform extensive electrical upgrades, which involved use of

materials worth between $20,000 and $30,000 and labor costs buried in

other electric contracts that DEI was performing at that time. Donald also

hired other contractors to install new hardwood flooring and upgrade the

kitchen. The appraisal for a loan obtained to purchase the condominium did

not include any of this renovation work and indicated that the unit was worth

$230,000.


                                    - 22 -
J-A09014-15



      The indictment also accused Donald of “making renovations on IBEW

Local 96 Official #1's Moyamensing Avenue rowhouse.” Id. at page 15, ¶ 2.

The document continued that the union official was not invoiced and did not

pay for the work performed by Donald until after the union official came

under federal investigation.      At that point, the union official asked to be

invoiced for DEI’s work on the home.

      Dougherty, who had the burden of proving the falsity of the

Newspaper’s      report   about    the    federal   investigation,   produced   no

countervailing evidence.    Thus, there is no genuine issue of material fact

that Dougherty was investigated by federal authorities for accepting favors

from Donald and that Donald was indicted for conferring those favors upon

Dougherty.

      While Dougherty purports to present five distinct issues, in actuality,

his first four averments are identical. Dougherty repeatedly insists that the

articles state or imply that he actually was guilty of the criminal acts under

investigation.   As to the April 13, 2008 editorial, Dougherty argues that it

“implies that Dougherty ‘accepted valuable favors from a lifelong friend and

union colleague,’ that federal investigators found incriminating evidence

when they searched his home, and that he ‘thwarted minorities from gaining

high-paying jobs.’” Appellant’s brief at 20.

      The April 13, 2008 editorial does not suggest or state that Dougherty

committed any crime for which he was being investigated.              It expressly


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stated that Dougherty was similar to Fumo insofar as Fumo was indictable.

The editorial then noted that Dougherty denied certain facts.     Specifically,

the article stated that Dougherty “denies accepting valuable favors from a

lifelong friend and union colleague, as outlined in a federal criminal

indictment against the friend,” and “denies that his leadership has thwarted

minorities from gaining high-paying union jobs” and also “denies that the

feds found anything incriminating when they searched his home[.]”

     Thus, the article expressed an opinion that Dougherty was as

indictable as Fumo. Concededly, a portion of the article about Dougherty’s

denials was sarcastic in tone. Dougherty did deny accepting valuable favors

from Donald, he did deny that he prevented minorities from obtaining high

paying jobs, and he did deny that the federal government found anything in

his home.   The sarcasm expressed in the editorial was a reflection of the

Newspaper’s opinion that Dougherty’s denials were not credible.

     However, the Newspaper’s belief that Dougherty was similar to Fumo

at Fumo’s indictable worst and the Newspaper’s stated skepticism about the

truth of Dougherty’s denials was firmly premised upon disclosed, true facts.

It was true that Dougherty was being investigated by federal authorities and

that his house was searched by federal authorities with a warrant supported

by an extensive affidavit of probable cause outlining why items incriminatory

to Dougherty would be found therein.     It was true that a federal criminal

indictment had been filed against Donald and that indictment accused


                                   - 24 -
J-A09014-15



Donald of conferring favors upon Dougherty by selling him a condominium

unit for less than fair market value and by performing free renovations on

his home.     We are aware that the union official to whom Donald gave

financial benefits is unnamed in the federal indictment presented against

Donald. However, when the indictment is read together with the affidavit of

probable cause, it is conclusively established that the unnamed union official

was Dougherty.

      In light of the documents generated in the federal investigation of

Dougherty and Donald, the Newspaper was constitutionally permitted to

express its opinion that Dougherty, like Fumo, was indictable.     It likewise

was free to express its doubt about the veracity of Dougherty’s denials that

he did not accept favors from Donald, as outlined in the indictment, and that

nothing incriminatory was found in his home, which was searched by federal

authorities under warrant issued pursuant to the extensive affidavit of

probable cause.

      An opinion, as noted, is actionable only if it implies an allegation of

undisclosed defamatory facts as the basis for the opinion.      Milkovich v.

Lorain Journal Co., 497 U.S. 1, 20 (1990) (under United States Supreme

Court precedent, “a statement of opinion relating to matters of public

concern which does not contain a provably false factual connotation will

receive full constitutional protection”).    Moreover, of critical importance

herein is the fact that the article was an editorial about whether a union


                                    - 25 -
J-A09014-15



official who was running for political office was a worthy candidate.            This

context is precisely where the First Amendment right to free speech enjoys

its fullest and most urgent application because that amendment is

“fashioned to assure the unfettered interchange of ideas for the bringing

about of political and social changes desired by the people[.]”           Monitor

Patriot Co., supra at 272 (accusing a candidate for office of being a former

bootlegger) (citation omitted).      The right to comment on candidates for

elections “protects the paramount public interest in a free flow of information

to the people concerning public officials, their servants.”            Id. at 273.

Anything that might bear upon a candidate’s fitness for office, including

private or public matters, and especially any malfeasance or criminal

conduct, is fair game for political commentary. Id.

      The flippant nature of the April 13th editorial provides Dougherty no

relief in the context of political speech. “It is a prized American privilege to

speak one's mind, although not always with perfect good taste, on all public

institutions.”      Sullivan, supra at 269 (citation omitted).         Due to our

“profound national commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open, . . . . it may well include

vehement,        caustic,   and   sometimes     unpleasantly   sharp   attacks    on

government and public officials.” Id. at 270 (emphasis added). Given the

disclosed and true facts that Dougherty’s home was searched by federal

officials based upon probable cause and that Donald was under indictment


                                       - 26 -
J-A09014-15



for conferring two financial benefits upon Dougherty, the Newspaper had the

right to express its opinion that Dougherty’s denials rang hollow and that he

was “indictable.”

          Regarding the second April 13, 2008 article and the April 17, 2008

editorial, Dougherty avers that he was falsely accused therein of accepting

“bribes from a developer and contractor.”        Id.   The April 13, 2008 article

clearly and unequivocally states that federal authorities were making the

accusation.       It reported, “In 2003, according to federal authorities,

[Dougherty] bought a North Wildwood condo from an electrician pal for

$24,000 less than what you or I would have had to pay because he could,

never mind that the law forbids contractors from plying union leaders with

gifts.”      That article continues, “Investigators are also concerned

whether, a year later, the same contractor did work gratis on Dougherty's

home in South Philly.” Thus, the article did not report that Dougherty had

been found guilty of violating federal law by paying less than fair market

value for a condominium and by receiving free home repairs.              In both

instances, the article clearly and expressly stated what the federal

authorities were investigating. At no point did the April 13, 2008 article

accuse Dougherty of actually committing the crimes being investigated.

          As to the April 17, 2008 article, it reported that Donald “allegedly did

more than $100,000 worth of work at John's house free.” Complaint,

3/23/11, at Exhibit C. Next, the article indicates, “Federal prosecutors are


                                        - 27 -
J-A09014-15



looking at these relationships as part of a broader probe of the union boss.

He has not been charged and denies any wrongdoing.”                 Id.   Rather

than implicate Dougherty in committing a crime, that article expressly notes

the lack of charges and the denials by Dougherty. The tone of this article is

not sarcastic. That document also stated, “Another friend, Peter DePaul, a

well-connected developer, let Dougherty Stay at DePaul’s $3,000-a-month

waterfront apartment free while Dougherty's home was undergoing a

$400,000 renovation.”    Dougherty revealed in financial documents that he

stayed at DePaul’s apartment without paying rent.       Hence, that statement

was true.

      Dougherty’s second issue on appeal is that the trial court erred in

concluding that the statements in the articles that constituted opinions about

Dougherty’s fitness for office were opinions based on disclosed and

undisputed facts. Dougherty continues that the opinions in the three articles

were based upon false and defamatory implied facts rather than disclosed

true facts. In this connection, Dougherty repeats his previous assertion that

the “articles may reasonably be read to contain or imply untrue statements

of fact about Dougherty—that Dougherty had committed crimes (i.e.

bribery) and will continue to do so in the future.” Appellant’s brief at 22.

      As analyzed above, to the extent that the articles mentioned

Dougherty taking prohibited financial favors in the form of home renovations

and paying less than fair market value for a condominium, they clearly and


                                     - 28 -
J-A09014-15



unequivocally reported that these were activities for which Dougherty was

under investigation by federal authorities and that the federal authorities

were the source of the information.          The articles never stated that

Dougherty actually accepted these unlawful financial favors.     The opinions

expressed in all the articles, which were that Dougherty was indictable and

unsuitable for office, that his denials were not worthy of belief, and that

Dougherty was not as worthy a candidate as the other Democrats, were thus

based upon disclosed and true facts about the federal investigation into

Dougherty and Donald. The trial court therefore properly found that these

opinions, in accordance with the above-delineated case authority, were not

actionable.

      Dougherty’s third and fourth positions are repetitions of his single note

approach to this matter. In his third issue, Dougherty contends that the trial

court erred in failing to appreciate that the article’s innuendos were that he

was guilty of the crimes under investigation. His fourth allegation is that the

trial court erred in concluding that Dougherty failed to demonstrate that the

Newspapers’ statements were false since “he was never charged with, let

alone convicted of, any crime.” Appellant’s brief at 26. We note that at no

point in his brief does Dougherty quote a statement in any article that would

constitute an accusation that he actually committed a crime being

investigated by the FBI.




                                    - 29 -
J-A09014-15



       Dougherty’s final position is that he should have been accorded

discovery.     Under the law, Dougherty had to establish the falsity of the

articles, that they were capable of defamatory meaning, and that the

defendant acted with actual malice.    The Newspaper provided an affidavit

establishing the existence of the federal investigation. The articles did not

accuse or imply that Dougherty actually committed any of the acts under

investigation. The opinions about Dougherty in the articles were based upon

disclosed, true facts. The question of whether the articles were capable of

defamatory meaning and whether the opinions were based upon disclosed

and true facts were determinations that were firmly vested in the trial court.

Discovery would not have impacted upon the legal determination made by

the trial court in this matter.

       For the foregoing reasons, we affirm the grant of summary judgment.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2015




                                    - 30 -
