court must first determine as a matter of law whether there is sufficient evidence for reasonable persons to find extreme or outrageous conduct. If so, the matter is then left to the jury to find the facts and reach its own characterization of the conduct. Chuy, supra, 595 F.2d at 1274. The mere filing of the two lawsuits that plaintiff was forced to defend in other states, even if they were entirely baseless, does not, as a matter of law, constitute extreme or outrageous conduct. Rose v. Wissinger, 294 Pa. Super. 265, 439 A.2d 1193 (1982); cf., Martin v. Little Brown & Co., 304 Pa. Super. 424, 450 A.2d 984 (1981) (threat of legal counterclaim, even if entirely lacking in merit, does not constitute outrageous conduct). Nor do the statements allegedly made by attorney Dilimetin, even if they may be considered implied threats as plaintiff alleges, so exceed the bounds of decency that they render defendants' conduct extreme and outrageous. Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa. Super. 377, 368 A.2d 770 (1976) (statements by creditors to plaintiffs that their house was to be sold and that they had 30 days to get their junk out not extreme and outrageous within the context of § 46 even where plaintiffs alleged the creditors knew they could not complete execution proceedings).
Defendants' press release concerning the Kiplinger/Denenberg suit would be a more difficult problem. The contents of this press release were not set forth in the pleadings but plaintiff has moved to amend his complaint to include the press release and attached a copy of it to his response to defendants' motion. In Chuy, the Third Circuit held that the plaintiff had proved outrageous conduct where there was "a statement to the press by a physician assumed to know the facts that a person is suffering from a potentially fatal disease, even though the physician was aware that the person was not stricken with that condition." 595 F.2d at 1274. See also, Restatement (Second) of Torts § 46, Illustration 1 (false statement that one's spouse is seriously injured extreme and outrageous).
But here, the press release stated that American Family Life had filed a $5 million libel action against several persons, including Denenberg. Denenberg was referred to as a "noted outspoken and self styled consumer advocate." Denenberg and the other defendants in that action were accused of being responsible for an article that was "false and defamatory," and contained malicious, untrue and misleading statements in order to reap considerable financial gain and cast American Family in a "diabolical, fiendish and megalomaniacal light." These statements were quotations from the complaint filed in the Kiplinger/Denenberg suit. They are not, in the context of the obvious dispute between these parties, so outrageous as to be beyond all possible bounds of decency. Accordingly, Count IV will be dismissed for failure to state a cause of action upon which relief can be granted.
D. Count V -- Civil Conspiracy
Plaintiff alleges that a conspiracy existed "for the sole purpose of oppression, harassment, intimidation, embarrassment, coercion, extortion, and otherwise to inflict financial injury, professional injury, and emotional distress upon plaintiff Denenberg, and to attempt to silence him, and deprive him from pursuing his right as an American citizen to freedom of speech under the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania." Complaint, para. 66. This alleged conspiracy was carried out in at least four states,
although it is not clear where plaintiff alleges it was entered.
Neither New York nor Virginia recognize an independent tort of civil conspiracy. Powell v. Kopman, 511 F. Supp. 700, 704 (S.D.N.Y. 1981); Stauffer v. Fredericksburg Ramada, Inc., 411 F. Supp. 1136 (D. Va. 1976). Pennsylvania and Maryland do recognize such a cause of action. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Green v. Washington Suburban Sanitary Comm'n., 259 Md. 206, 269 A.2d 815 (1970). Some of the acts in furtherance of the conspiracy are alleged to have occurred in Pennsylvania where its effects would have been suffered by a domiciliary of Pennsylvania. Plaintiff's domicile has a strong interest in protecting its citizens against injury from civil conspiracies, so that Pennsylvania law should apply.
To state a cause of action for civil conspiracy under Pennsylvania law, a plaintiff must allege that "two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means." Thompson, supra, 488 Pa. at 211, 412 A.2d at 472.
Here, plaintiff alleges a conspiracy among the three named defendants. However, Amos, Chairman of the Board and Chief Executive Director of AFC, could not conspire with AFC when acting in that capacity. Id. at 212-213, 412 A.2d at 473. Dilimetin, attorney for AFC, could conspire with Amos or AFC only if he acted solely to injure plaintiff rather than as an attorney seeking to advance the interests of AFC. Id. at 211, 412 A.2d at 472; see also, Jagielski v. Package Machine Co., 489 F. Supp. 232 (E.D.Pa. 1980); Realco Services Inc. v. Holt, 479 F. Supp. 880 (E.D.Pa. 1979); cf., Johnston v. Baker, 445 F.2d 424 (3d Cir. 1971).
The acts that plaintiff alleges were performed by Dilimetin in furtherance of a conspiracy are alleged to have been performed by him as agent for defendants AFC and Amos. Complaint, paras. 37 and 72. But plaintiff also alleges that Dilimetin acted "on his own behalf." Complaint, para. 7. On a motion to dismiss, the court must construe the pleadings liberally in favor of plaintiff; the motion may not be granted unless it is clear that plaintiff can prove no set of facts at trial to support his cause of action. Because the pleadings are unclear, the court is reluctant to hold that plaintiff has failed to state a cause of action. Accordingly, defendants' motion to dismiss this Count is denied without prejudice to renewal as a motion for summary judgment at the conclusion of discovery or for a directed verdict at trial.
E. Count VI -- Defamation
In choosing which jurisdiction's law is to be applied on this Count, the place or places of publication of the allegedly defamatory statements and the place or places of injury to plaintiff's reputation must be considered. Generally, the law of the jurisdiction where the defamatory statements were published is applied. See, Restatement (Second) Conflicts of Law (1971) § 149. But here, plaintiff alleges that the statements were published to a national audience. Therefore, the court will look to the law of the state of plaintiff's domicile. Restatement, supra § 150. As a resident and media personality in Pennsylvania, Denenberg would suffer injury to his reputation in Pennsylvania if defendants published any defamatory statements here. Pennsylvania has a significant interest in protecting the reputation of a domiciliary. Fitzpatrick v. Milky Way Productions, Inc., 537 F. Supp. 165 (E.D.Pa. 1982). Nothing in the record convinces the court that any other state bears a more significant relationship to this cause of action. Accordingly, Pennsylvania law will apply.
Plaintiff claims that defendants published defamatory accounts of the two lawsuits filed against Denenberg and others. Plaintiff has alleged that defendants published "Media Wire" accounts to "city" and "business" desks of newspapers. Complaint, para. 76. Because plaintiff has not alleged the contents of the publications or to whom they were made, defendants have moved to dismiss this Count. However, plaintiff has attached as Exhibit G to his memorandum in opposition to defendants' motion a copy of a media wire account sent by defendants and requested leave to amend the complaint to incorporate this document. Leave to amend will be granted without determining whether the amended complaint states a cause of action for defamation. Whether the statements are capable of defamatory meaning as to this plaintiff, 42 Pa.C.S.A. § 8343(a), or are of a privileged character, 42 Pa.C.S.A. § 8343(b) will not be determined on this motion to amend.
F. Count VII -- Exemplary Damages
Plaintiff has brought a separate Count to recover exemplary damages. This Count will be dismissed; if plaintiff recovers on the remaining Counts, he will recover such damages as are appropriate. In amending his complaint, plaintiff may include a prayer for exemplary damages in the form permitted by Local Rule 30.
Defendants' motion is granted in part and denied in part. Counts I, II, III, IV and VII of plaintiff's complaint are dismissed. The motion is denied as to Counts V and VI with leave to amend in accordance with this Memorandum. However, the court cannot help but wonder if when this litigation is terminated there will be yet another lawsuit in this or some other forum concerning the bona fides of this litigation. Perhaps it can be hoped that at some point the parties will find it sufficient to debate the value of cancer care insurance in the forum of public opinion rather than the courts of law all over the nation.
AND NOT, this 29th day of June, 1983, upon consideration of defendants' motion to dismiss plaintiff's complaint, plaintiff's memorandum in opposition thereto, and for the reasons set forth in the foregoing Memorandum it is ORDERED that:
1. Defendants' motion is GRANTED in part and DENIED in part. Counts I, II, III, IV and VII of plaintiff's complaint are DISMISSED. The motion is denied as to Counts V and VI.
2. Plaintiff is granted twenty (20) days' leave to amend the remaining Counts (V and VI) of his complaint in accordance with the court's Memorandum of this date. Defendant shall answer Counts V and VI within the time provided by the Federal Rules of Civil Procedure.
3. A preliminary pretrial conference will be held on Tuesday, August 30, 1983 at 4:30 p.m., at which time a schedule for proceeding with this litigation, including a discovery deadline, will be set. Two days prior to the conference, the parties shall submit a joint proposed discovery schedule, or their individual proposals if they are unable to reach agreement.