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SMITH v. POCONO COUNTRY PLACE PROP. OWNERS ASSN.

December 3, 1987

Barry Smith, Plaintiff
v.
A Pocono Country Place Property Owners Association, Inc., Lou Cardilla, Antonio D'Erasmo, William Cetta, Angelo DiGiovanni, Carmella McGrath and Ray Bender, Defendants



The opinion of the court was delivered by: NEALON

 William J. Nealon, Chief United States District Judge, Middle District of Pennsylvania

 Plaintiff filed a Complaint on April 25, 1985 against defendants alleging breach of contract and defamation. Presently before the court is defendant's Motion for Summary Judgment. For the reasons set forth below, the court will deny defendants' Motion for Summary Judgment.

 FACTUAL BACKGROUND

 In his Complaint, plaintiff alleges that he was employed by Defendant A Pocono Country Place Property Owners Association (Association) as General Manager of a residential property development known as "A Pocono Country Place." Plaintiff alleges that on April 28, 1984, the Association, by and through its President and Board of Directors, breached a written employment agreement with plaintiff. Damages as a result of this alleged breach of contract are sought.

 In addition, plaintiff avers that on April 29, 1984, the day after his employment contract allegedly was breached, the Association, by and through the individual defendants, and the individual defendants in their own rights, published and circulated a document entitled "Pocono Country Place Special Issue Newsletter Bulletin." Plaintiff maintains that defendants falsely, maliciously, wickedly, illegally and/or negligently printed and published the newsletter containing statements of and concerning plaintiff and reflecting upon his character. Defendants maintain that plaintiff was a public official or a public figure at the time of the alleged publication and, as such, plaintiff bears the burden of proving that defendants acted with actual malice. Alternatively, defendants argue that plaintiff was a limited purpose public figure who voluntarily injected himself into a particular public controversy and, therefore, became a limited purpose public figure who bears the same burden of showing actual malice. It is defendant's position that plaintiff cannot meet his burden of showing by clear and convincing evidence that each defendant realized at the time of publication that the statement was false or that each defendant subjectively entertained serious doubts as to the truth of the statements. *fn1"

 DISCUSSION

 Our Court of Appeals repeatedly has noted that although a defamation suit has profound First Amendment implications, it is fundamentally a state cause of action. See McDowell v. Paiewonsky, 769 F.2d 942, 945 (3d Cir. 1985). Adjudicating defamation claims requires inquiries under both state and federal law. Id. In the first instance, the court must determine whether the defendant has injured the plaintiff's reputation under the applicable state law. Id. If so, then the court must ascertain whether the First Amendment nevertheless prohibits the imposition of liability. Id. In defendants' motion, they raise issues concerning only the First Amendment, i.e., that plaintiff was a public official/public figure/limited purpose public figure and that defendants have failed to meet their burden of showing actual malice. Consequently, the court will not discuss at this juncture whether the published material is defamatory so as to injure plaintiff's reputation under applicable state law.

 I.

 Initially, although not discussed in detail by the parties, see Document 63 of the Record at para. 8, the court must consider whether the actual malice standard of proof set forth in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964) can apply to the non-media defendants in this case. The United States Supreme Court recognized that it had never decided the question of whether the New York Times standard applies to individual defendants as opposed to a media defendant. Hutchinson v. Proxmire, 443 U.S. 111, 133-34 n.16, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979). See also Avins v. White, 627 F.2d 637 (3d Cir. 1980), cert. denied, 449 U.S. 982, 66 L. Ed. 2d 244, 101 S. Ct. 398 (1980) (New York Times privilege extended to private individual criticizing a public figure in the course of commenting on matters germane to accreditation of law school; court did not consider whether New York Times privilege extends to all private individuals regardless of the context in which the alleged defamatory statement is uttered). In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 781, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (1985), Justice Brennan, responding to an argument that the guidelines set forth in Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), be limited to cases in which the defendant is a "media" entity, stated that such a distinction is irreconcilable with the fundamental First Amendment principle that the inherent worth of speech in terms of its capacity for informing the public does not depend upon the identity of its source. Id. slip op. at 781 (citation omitted) (Brennan, J., dissenting). Moreover, Justice Brennan stated:

 
Accordingly, at least six Members of this Court (the four who join this opinion and JUSTICE WHITE and THE CHIEF JUSTICE) agree today that, in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities. *fn2"

 Id. at 783-84 (citation omitted) (footnote omitted) (footnote not in original).

 In Garcia v. Board of Educ., 777 F.2d 1403, 1410 (10th Cir. 1985), cert. denied, 479 U.S. 814, 107 S. Ct. 66, 93 L. Ed. 2d 24 (1986), the court adopted this reasoning and held "First amendment protection should not depend on whether that criticism is in the form of speech by a private individual or publication by the institutional press." Similarly, then District Judge Becker previously reached the conclusion that a non-media defendant is entitled to the benefit of the New York Times standard of proof. Chuy v. Philadelphia Eagles Football Club, 431 F. Supp. 254, 265-66 n.20 (E.D. Pa. 1977), aff'd, 595 F.2d 1265 (3d Cir. 1979). See Woy v. Turner, 533 F. Supp. 102 (N.D. Ga. 1981); Fram v. Yellow Cab Co., 380 F. Supp. 1314, 1334 (W.D. Pa. 1974). See also Davis v. Schuchat, 166 U.S. App. D.C. 351, 510 F.2d 731, 734 (D.C. Cir. 1975) (understanding of New York Times and its offspring is that private persons and the press are equally protected by the requirement that false comment about public figures must be knowing or in reckless disregard of the truth in order to be actionable). Plaintiffs advance no reason why the New York Times standard should not apply in this case merely because defendants are not so-called media defendants. Thus, on the factual record presented, the court finds that the New York Times standard may apply to the individual and corporate defendants in this case.

 In considering a defamation case, the court is required to ascertain in the first instance whether the plaintiff is a public figure. See Marcone v. Penthouse Int'l Magazine, 754 F.2d 1072, 1081 (3d Cir. 1985), cert. denied, 474 U.S. 864, 106 S. Ct. 182, 88 L Ed. 2d 151 (1985). "The classification of a plaintiff as a public or private figure is a question of law to be determined initially by the trial court and then carefully scrutinized by an appellate court." Id. at 1081 n. 4. *fn3"

 II.

 Defendants first aver that plaintiff is a public official. Defendants cite cases which purportedly provide that one need not hold public office to be considered a public official. Plaintiff was the General Manager of the Association which consisted of approximately 2,050 property owners and defendants maintain that his position can be compared to that of a Mayor of a borough in Northeastern Pennsylvania. The court finds this argument unpersuasive.

 In Rosenblatt v. Baer, 383 U.S. 75, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1966), the United States Supreme Court stated "it is clear, therefore, that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Id. at 85 (emphasis added) (footnote omitted). As the Court indicated, there is a strong interest in debate on public issues and a similarly heightened interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Id. For example, police officers qualify as public officials because they have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. See Coughlin v. Westinghouse Broadcasting & Cable, Inc., 603 F. Supp. 377 (E.D. Pa. 1985), aff'd, 780 F.2d 340 (3d Cir. 1985), cert. denied, 476 U.S. 1187, 106 S. Ct. 2927, 91 L. Ed. 2d 554 (1986). *fn4" In this case, plaintiff is in no way connected with a government agency. Plaintiff was ...


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