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JOSEPHINE ZELIK v. DAILY NEWS PUBLISHING COMPANY (06/26/81)

filed: June 26, 1981.

JOSEPHINE ZELIK, APPELLANT,
v.
THE DAILY NEWS PUBLISHING COMPANY, A PENNSYLVANIA CORPORATION, AND JANICE STOLTZ, AN INDIVIDUAL



No. 1113 April Term, 1979, No. 100 Pittsburgh, 1980, Appeals from the Orders of the Court of Common Pleas of Allegheny County, Civil Division, GD 79-1950.

COUNSEL

Kenneth W. Kubrick, Pittsburgh, for appellant.

Diane W. Perer, Pittsburgh, for The Daily News, appellee.

Eileen D. Yacknin and Margaret Heinz, Pittsburgh, for Stoltz, appellee.

Price, Cavanaugh and Hoffman, JJ.

Author: Hoffman

[ 288 Pa. Super. Page 278]

These consolidated appeals arise from a defamation action brought by appellant, Josephine Zelik. In two separate orders, the lower court granted the preliminary objections in the nature of a demurrer of appellee Janice Stoltz and the motion for judgment on the pleadings of appellee The Daily News Publishing Company (Daily News) on the ground that a statement made by Mrs. Stoltz, which was referred to in a

[ 288 Pa. Super. Page 279]

    newspaper article published by the Daily News, was not capable of a defamatory meaning. For the reasons which follow, we reverse the orders of the court below and remand for further proceedings.

Our review of both of the lower court's orders is governed by the same principles. See Beckman v. Dunn, 276 Pa. Super. 527, 533, 419 A.2d 583, 585 (1980) (citing Trost v. Clover, 234 Pa. Super. 255, 338 A.2d 630 (1975)). On appeals from orders granting motions for judgment on the pleadings or preliminary objections in the nature of a demurrer, we accept as true the opposing party's well-pleaded averments of fact and consider against him only those facts which he specifically admits. Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967); Thomas Merton Center v. Rockwell International Corp., 280 Pa. Super. 213, 421 A.2d 688 (1980); Beckman v. Dunn, supra. Additionally, such a motion or preliminary objection will be sustained only in cases which are clear and free from doubt. Bata v. Central-Penn National Bank of Philadelphia, supra (judgment on the pleadings); Vitteck v. Washington Broadcasting Co., 256 Pa. Super. 427, 389 A.2d 1197 (1978) (demurrer). So viewed, the pleadings in this case disclose the following. At the time this action was instituted, Mrs. Zelik was the regular third grade classroom teacher at the Borland Elementary School in West Mifflin, Pennsylvania. Mrs. Stoltz' son Paul was a third grade student at the Borland School enrolled in a learning disabilities class conducted pursuant to the Allegheny Intermediate Unit's (AIU) program for exceptional children. He was also a student in Mrs. Zelik's classes during part of each school day. Sometime between December 6 and December 13, 1978, Mrs. Stoltz told several persons that before her son's regularly scheduled science class on the afternoon of December 6, 1978, plaintiff had thrown a metal object at him.*fn1 On

[ 288 Pa. Super. Page 280]

December 14, 1978, The McKeesport Daily News, a newspaper of general circulation owned by the Daily News, published an article entitled, "Local Task Force Again Questions AIU Decisions." After stating that members of the Local Task Force for the AIU had previously assisted Mrs. Stoltz and her husband in placing one of their sons in a learning disabilities program at the PACE school in Pittsburgh, the article continued:

Now, the task force again is in the corner of Mr. and Mrs. Stoltz, this time in behalf of another son, eight-year-old Paul, also afflicted with a learning disability and currently ...


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