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JOHN RYBAS v. MORTON B. WAPNER (02/18/83)

filed: February 18, 1983.

JOHN RYBAS, APPELLANT
v.
MORTON B. WAPNER, ESQUIRE AND SHELLY'S FORMAN, INDIVIDUALLY AND T/A SHELLY'S PHARMACY AND SPAWD, IND.



NO. 1119 PHILADELPHIA, 1981, Appeal from the Order entered April 23, 1981 in the Court of Common Pleas of Philadelphia County, Civil Action, at No. 2228 December Term, 1978.

COUNSEL

Paul Benjamin, Philadelphia, submitted a brief on behalf of appellant.

Steven G. Wigrizer, Philadelphia, for appellees.

Wieand, Beck and Montemuro, JJ.

Author: Beck

[ 311 Pa. Super. Page 53]

This defamation action was initiated by appellant John Rybas against appellees Morton B. Wapner, Esquire, and his client, Shelly Forman, a pharmacist. The trial court granted appellees' motion for summary judgment and this appeal followed.

Rybas is engaged in several businesses run by himself and his three sons in the Far Northeast section of Philadelphia, where his family have been long-time residents. Forman's drug store, known as Shelly's Pharmacy, has been located since 1970 in space leased by Rybas in a shopping center which Rybas built. Forman, too, lives in the Far Northeast.

In 1977, Rybas and Forman were in the midst of two separate lawsuits arising out of their landlord-tenant relationship. During the settlement negotiations, on December 12, 1977, Benjamin Paul, Rybas' attorney, wrote a letter to Wapner, Forman's attorney, asking for certain financial statements and tax returns. On December 16, 1977, Wapner

[ 311 Pa. Super. Page 54]

    responded to Paul. His letter contained the following paragraph:

"If Mr. Rybas ever intends to settle this amicably, it is going to be incumbent upon him to make some gesture of good faith, some attempt to demonstrate that he is not as an anti-Semitic as he appears to be, and to make some effort at trying to live together as a good neighbor."

Following receipt of Wapner's letter, Rybas filed suit, claiming that the letter was defamatory and demanding judgment in excess of $100,000. Wapner denies that the letter was defamatory, and claims that Rybas fails to prove damages. He does not plead truth as a defense, but claims that the statement in question is absolutely privileged as relating to a judicial proceeding.

In reviewing summary judgment, the Court must accept as true all well-pleaded facts in the non-moving party's pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. Scheetz v. Borough of Lansdale, 64 Pa. Commw. 24, 438 A.2d 1048 (1982). Clearly there is no genuine issue of material fact in this case. Our review is therefore limited to the issues of (1) whether Wapner's ...


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