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RUDY V. DESANTIS v. BARBARA J. SWIGART. APPEAL RUDY V. DESANTIS (03/05/82)

filed: March 5, 1982.

RUDY V. DESANTIS, SAMUEL C. RICE AND KENNETH W. RANKIN AND NICHOLAS G. VALLAS
v.
BARBARA J. SWIGART. APPEAL OF RUDY V. DESANTIS, SAMUEL C. RICE & KENNETH W. RANKIN



Nos. 720 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas Civil Division - Law, of Butler County, at A.D. No. 78-498, Book 112, Page 446, Dated June 26, 1980, in Trespass.

COUNSEL

Leo M. Stepanian, Butler, for appellants.

Douglas G. Linn, II, Butler, for Vallas, appellee.

Richard W. Givan, Butler, for Swigart, appellee.

Brosky, DiSalle and Shertz, JJ. This case was decided prior to the expiration of Shertz, J.'s, commission of office. DiSalle, J., did not participate in the consideration or review of this case.

Author: Shertz

[ 296 Pa. Super. Page 285]

This is an action in libel wherein Appellants contend that the court below erred in sustaining Appellee's preliminary objections in the nature of a demurrer and dismissing the complaint on the ground that the communication in question enjoyed absolute privilege. We agree and therefore reverse.

Initially we note the applicable standard of review is expressed in Donnelly v. DeBourke, 280 Pa. Super.Ct. 486, 489, 421 A.2d 826, 828 (1980) (citations omitted):

[ 296 Pa. Super. Page 286]

[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom . . . [P]reliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i.e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

See also Bickell v. Stein, 291 Pa. Super.Ct. 145, 149, 435 A.2d 610, 612 (1981).

A demurrer is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Del Boring Tire Service, Inc. v. Barr Mach., Inc., 285 Pa. Super.Ct. 66, 426 A.2d 1143 (1981). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. Barto v. Felix, 250 Pa. Super.Ct. 262, 378 A.2d 927 (1977). In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint. Linda Coal and Supply Co. v. Tasa Coal Company, 416 Pa. 97, 204 A.2d 451 (1964). Any doubt as to whether a demurrer should be sustained should be resolved against the moving party. Commonwealth, Dept. of Environmental Resources v. Peggs Run Coal Co., 55 Pa. Commw.Ct. 312, 423 A.2d 765 (1980).

We must apply these standards to the complaint herein, which contains the following allegations: (1) on March 18, 1978, Appellee, Barbara J. Swigart, an individual, prepared, wrote and caused to be printed and published, in a local daily newspaper, an advertisement which was defamatory per se; (2) the paid advertisement was an unprivileged publication; (3) in the alternative, the publication was an abuse of privilege; (4) the advertisement and publication was malicious because the same was false and imputed to Appellants the commission of a ...


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