APPEAL FROM THE JUDGMENT ENTERED MARCH 27, 1985 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CIVIL NO. GD 84-5615
Sheldon L. Albert, Philadelphia, for appellant.
Walter T. McGough and John G. Ferreira, Pittsburgh, for appellees.
Cirillo, President Judge, and Brosky and Johnson, JJ.
[ 353 Pa. Super. Page 495]
Appellant, Cyril Wecht, M.D., J.D., initiated this action in trespass against appellees, the Pittsburgh Post-Gazette, its publisher and various of its editors, agents and employees, alleging that appellees maliciously published a number of articles and editorial cartoons which were false, defamatory and portrayed Dr. Wecht in a false light. The trial court sustained appellees preliminary objections in the nature of a demurrer. The court held that the publications were not defamatory as a matter of law. Although the court found the publications objectionable to varying extents, it resolved that the publications failed to meet the threshold requirement of tending to harm Dr. Wecht. This appeal followed.
On appeal, Dr. Wecht submits that the trial court erred: 1) in finding the publications incapable of defamatory meaning; and 2) in sustaining appellees' preliminary objection to appellant's false light/invasion of privacy claim.
[ 353 Pa. Super. Page 496]
We find appellant's arguments in support of his first issue to be meritless. We agree with the trial court that the challenged publications are incapable of defamatory meaning but our decision to affirm on this issue is based upon different reasons than those advanced by the trial court. We may affirm a decision of the trial court when it is correct on any legal ground or theory without regard to the ground upon which the trial court relied. Green v. Juneja, 337 Pa. Super. 460, 487 A.2d 36 (1985); Emerick v. Carson, 325 Pa. Super. 308, 472 A.2d 1133 (1984); Leasing Service Corp. v. Benson, 317 Pa. Super. 439, 464 A.2d 402 (1983).
In determining that the published material in question was not defamatory, the trial court relied upon Dr. Wecht's position as an elected official and a well-known public figure. The court stated in its opinion that the "law of libel is alive and well, but that when a public figure sues under it, he carries a heavy burden, and the first is to show that the subject matter complained of is defamatory." The court continued that "in a careful review of the subject matter here complained of, we cannot find that it is, recognizing that the First Amendment guarantee of a free press, as interpreted by the United States Supreme Court, carries with it a limited privilege of free expression." (Emphasis added). The privilege to which the trial judge referred is a qualified one. It is accepted that absolute privileges may be raised at the preliminary objection stage, Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968). But, it is well established that the defense of qualified privilege must be raised by new matter and not by preliminary objection. Vitteck v. Washington Broadcasting Co., Inc., 256 Pa. Super. 427, 389 A.2d 1197 (1978); Burke v. Triangle Publications, Inc., 225 Pa. Super. 272, 302 A.2d 408 (1973). See Pa.R.C.P. 1030. The trial court erred in considering the qualified privilege extended to those commenting on the lives of public figures when ruling upon appellees' preliminary objections. However, we agree
[ 353 Pa. Super. Page 497]
with the trial court that the communications in question were not defamatory in that appellant's reputation in the community was not harmed.
To maintain his complaint in libel, Wecht was charged with establishing the defamatory nature of the challenged publications. In Pennsylvania
a communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third ...