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HOOVER v. PEERLESS PUBLS.

December 18, 1978

Cove HOOVER
v.
PEERLESS PUBLICATIONS, INC., and Ellis Rietzel



The opinion of the court was delivered by: LUONGO

Plaintiff filed the original complaint in this libel action on April 19, 1978. The complaint alleges that on September 9, 1977, defendant Rietzel sent a letter containing defamatory statements about plaintiff to the general manager of the Valley Sentinel, a newspaper with which plaintiff had sought employment. Jurisdiction is based solely on diversity of citizenship. 28 U.S.C. § 1332 (1976). Presently before me is defendants' motion for judgment on the pleadings. For the reasons hereafter stated, I conclude that this motion should be denied.

A brief review of the procedural history of this case may be helpful. Plaintiff filed his original complaint on April 19, 1978, and his first amended complaint on April 25, 1978. See generally Fed.R.Civ.P. 15(a). Pursuant to a stipulation for an extension of time, defendants filed their answer on June 19, 1978. Defendants then moved for judgment on the pleadings, asserting that the complaint failed to state a claim upon which relief could be granted. See generally Fed.R.Civ.P. 12(h)(2) ("A defense of failure to state a claim upon which relief can be granted . . . may be made . . . by motion for judgment on the pleadings . . . ."). Plaintiff then moved for leave to amend the complaint, and I granted that motion by order dated August 29, 1978. When plaintiff then failed to file his second amended complaint with the court, *fn1" I advised plaintiff's counsel to do so. At the same time, I requested of counsel for both sides supplemental briefs on the defense of qualified privilege, which was raised in defendants' answer. Plaintiff filed his second amended complaint on October 16, 1978, and defendants answered that complaint on October 24, 1978. Counsel then furnished the requested briefs. On November 3, plaintiff moved to strike the recently-filed second amended complaint and to substitute therefor the "correct" second amended complaint, which was attached as Exhibit B to plaintiff's motion. Document No. 27. Defendants acquiesced in this substitution, and I granted the motion by order dated November 7, 1978. On November 9, plaintiff filed his corrected second amended complaint. Document No. 29. On November 20, defendants filed their answer to the corrected second amended complaint. Document No. 30. Although defendants have not specifically renewed their motion since the most recent amendment to the complaint, it is my understanding that their legal arguments, as set forth in their briefs, apply to the corrected second amended complaint just as much as they applied to the first amended complaint. I will therefore proceed to consider defendants' motion for judgment on the pleadings.

 In resolving a motion for judgment on the pleadings, "all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false." 2A Moore's Federal Practice P 12.15 at 2343 & n.7 (2d ed. 1948) (collecting authorities).

 The corrected second amended complaint alleges that defendant Rietzel sent a letter to the general manager of the Valley Sentinel, a newspaper with which plaintiff had sought employment, and that this letter contained false defamatory statements concerning plaintiff. Defendants admit in their answer that the letter, attached as Exhibit A to the corrected second amended complaint, was sent in response to an inquiry from the Valley Sentinel regarding plaintiff's qualifications for employment with that newspaper. The letter begins by referring to plaintiff's tenure as an executive with the Gannett newspaper chain, and noting that plaintiff later came to be publisher of the Delaware Valley Times, an Ingersoll newspaper with offices in Chester, Pennsylvania, during "turbulent Guild negotiations which deteriorated into a long strike situation." It then continues:

 
"It is my understanding that Mr. Hoover had some mental problems while with the Gannett chain, and they put him on some sort of retirement program. Whether the situation in Chester brought on further mental problems or whether they were there to begin with, I would not venture to say. In any event it was felt that a separation would be in the best interests of both the newspaper and Mr. Hoover.
 
In answer to your questions, specifically "Would the group rehire him?' Probably not on the basis of "once burned . . .'.
 
"Is he a qualified executive?' Depending on his mental condition at this time.
 
"An able news man?' Under normal conditions, yes.
 
"A sound individual?' I think the above will answer this question."

 Plaintiff's corrected second amended complaint alleges that these false and defamatory statements have injured his "reputation as a publisher, editor and businessman," and that his "physical well-being" has also been injured. Complaint PP 15, 16. Plaintiff seeks compensatory and punitive damages. The parties have assumed, and I agree, that Pennsylvania libel law governs this action.

 Defendants' motion challenges the sufficiency of plaintiff's allegations. Their memoranda of law advance several arguments in support of the view that the complaint fails to state a claim upon which relief may be granted.

 First, defendants argue that the complained-of letter can only be construed as "an expression of the writer's opinion based on information received from many sources and without any reasonable warrant of the completeness or accuracy of the information." Defendants' Memorandum of Law (Document No. 21) at 3. Such an expression of opinion, they urge, cannot give rise to liability for defamation. Defendants thus invoke the subtle and still-evolving rules governing liability for expressions of derogatory opinion, as opposed to statements of fact. See generally Restatement (Second) of Torts § 566 & Comments b & c (1977). However, I conclude that the opinion-versus-fact distinction cannot aid defendants here.

 To begin with, two particularly damaging portions of Rietzel's letter seem not to be expressions of opinion at all. Rietzel's statement that plaintiff "had some mental problems" when he was with the Gannett chain appears to be an ordinary statement of fact. Defendants suggest that this is actually an expression of opinion, on the ground that Rietzel simply collected information from others and passed it along, without personally vouching for it, in his letter. But this argument would make an "opinion" out of every statement that is not based on personal knowledge. Thus, on defendants' view, if Rietzel had written "John Smith told me that Mr. Hoover had some mental problems," Rietzel still would have expressed only an opinion and he still would be shielded from liability. This approach, of course, runs counter to the black-letter rule that one who republishes a libel is subject to liability just as if he had published it originally, even though he attributes the libelous statement to the original publisher, and even though he expressly disavows the truth of the statement. See, e.g., Restatement (Second) of Torts § 578 & Comments b & e (1977); L. Eldredge, The Law of Defamation § 44 at 232-33 (1978). Thus, Rietzel's statement that plaintiff "had some mental problems" while at the Gannett chain cannot be treated as an expression of opinion simply because Rietzel may have lacked first-hand knowledge of the underlying events.

 Much the same may be said of Rietzel's statements regarding plaintiff's experience in Chester. These statements, quoted earlier, rather clearly imply that plaintiff experienced further mental problems of some sort while working in Chester. Once again, these statements cannot be deemed expressions of opinion merely because Rietzel was passing on information gleaned from other sources. Too, Rietzel's explicit refusal to comment on the Cause of plaintiff's difficulties ...


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