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RICHARD J. DOUGHERTY v. BOYERTOWN TIMES (09/14/88)

filed: September 14, 1988.

RICHARD J. DOUGHERTY, D.C., APPELLANT,
v.
THE BOYERTOWN TIMES, A/K/A THE TIMES OF THE BOYERTOWN AREA AND BERKS-MONT NEWSPAPERS, INC., APPELLEES



Appeal from the Order entered May 7, 1987 in the Court of Common Pleas of Montgomery County, Civil Division, No. 82-8646.

COUNSEL

Audrey L. Jacobsen, Norristown, for appellant.

Arthur R. Tilson, Ambler, for Berks-Mont, appellees.

Olszewski, Kelly and Hoffman, JJ. Hoffman, J. concurs in the result.

Author: Kelly

[ 377 Pa. Super. Page 466]

This is an appeal from an order in the Court of Common Pleas of Montgomery County denying the post-trial motions of plaintiff/appellant, Richard J. Dougherty, D.C. (hereinafter "Dougherty") and affirming the trial court's grant of defendant/appellee, The Boyertown Times, a/k/a The Times of the Boyertown Area and Berks-Mont Newspapers, Inc.'s (hereinafter "newspaper") motion for compulsory non-suit. We reverse and remand the case for a new trial.

FACTS AND PROCEDURAL HISTORY

Dougherty is a doctor of chiropractic medicine. In 1976, Dougherty and his wife Barbara purchased a property in rural Pennsylvania, near Boyertown and Gilbertsville, where he intended to establish a private chiropractic practice. The property was converted to a home for the Doughertys and a chiropractic office, which opened in late 1977. George Gumbrell became one of Dougherty's patients and made approximately ten visits to Dougherty in April and May of 1981. On July 2, 1981, Mrs. Gumbrell sent a letter to Donald L. Webb, the editor of the newspaper, expressing complaints concerning her husband's experience with Dougherty. Webb contacted Mrs. Gumbrell to discuss the letter with her. He suggested that she rewrite the letter, omitting certain portions which he felt were improper. The following letter was submitted by Mrs. Gumbrell and subsequently published in the July 23, 1981 edition of the newspaper,

[ 377 Pa. Super. Page 467]

    a paper with a Boyertown/Gilbertsville circulation, in the Letters to the Editor section, entitled "Patient complains about fees":

To the editor:

I am writing this letter to tell you and the people of the area about our experience with Dr. Richard Dougherty, Chiropractor, whose home and office are located at Middle Creek Road and Route 73, Gilbertsville. It is my hope that others will profit by our experience.

On Wednesday, April 29, 1981, we received a call from Dr. Dougherty's secretary, Wanda, asking us to make an appointment because one of their patients had told them that my husband had a back problem. The doctor encourages his patients to recruit others. Since my husband was feeling bad, we agreed and saw the doctor that afternoon. When we asked what the charges would be, Wanda said $15 per visit. She also asked if we had insurance and when we told her the insurance would pay $7 per visit, she told us to pay $8 per visit, which we did. My husband went to Dr. Dougherty a total of 10 times from April 29 to May 22. During that time he became worse and had to go to another doctor for treatment. On June 26, we received a statement from the insurance company that Dr. Dougherty had billed them for $198 and they had paid him $118. Since we had already paid him $80 and the insurance paid him $118. That's $198. However, 10 visits at $15 a visit equals $150, a difference of $48. When I called about the extra charges, Wanda said that the first visit is always $30 (she never mentioned that before) and the second visit was $23 because the doctor went over the X-rays with us and that was considered an extended visit. When I pointed out that we were still being overcharged by $25, she said she would have to talk to the doctor. When I called today, July 1, she told me the extra $25 was for analyzing the X-rays and no money would be refunded to us.

Now I ask you, have you ever heard of a chiropractor who charges $30 for the first visit, $23 for an extended

[ 377 Pa. Super. Page 468]

    visit because he looked at X-rays, and $25 for analyzing those same X-rays? We were told that the charges would be $15 per visit. No other charges were ever mentioned until the insurance company overpaid the bill.

I would like to warn others to beware of extra charges and treatments which, at least for us, were ineffective and possibly harmful.

Sincerely,

Name Withheld.

The first paragraph of Mrs. Gumbrell's first letter to Webb originally stated the following:

I am writing this letter at the suggestion of [a named third party] to tell you and the people of the area about our experience with Dr. Richard Dougherty, Chiropractor, whose home and office are located at Middle Creek Road and Rt. 73, Gilbertsville, Pa. It is my hope that others will profit by our experience and avoid being cheated as we have been.

(Exhibit B of Appellee's Brief). The phrase "at the suggestion of [a named third party]" was deleted at Webb's suggestion. He felt the matter was between Mrs. Gumbrell and Dougherty and it would be inappropriate to involve a third party. (N.T. 12/8/86 at 47). Mrs. Gumbrell also omitted "cheated" at Webb's suggestion. The last paragraph of Mrs. Gumbrell's first letter to Webb contained the following sentence. "All these charges are bad enough, but to deliberately mislead us is inexcusable and unethical to say the least." (Exhibit B of Appellee's Brief). Mrs. Gumbrell removed this sentence at Webb's suggestion. Finally, Mrs. Gumbrell substituted "my husband" for "George" in the second letter; thus rendering the letter anonymous in form and content. Other than these changes, the second letter which was published was the same as the first letter.

Prior to its publication, Webb had sent a copy of the letter to Dougherty, with Mrs. Gumbrell's name deleted. Webb asked Dougherty to consider responding to the letter. When Webb received no reply from Dougherty, he contacted

[ 377 Pa. Super. Page 469]

    him by phone, again requesting a written response. Dougherty declined. Neither Webb nor Dougherty specifically identified the Gumbrells as the complaining patient. After discussing the letter personally with Dougherty, Webb published the letter.

On June 2, 1982, Dougherty filed a complaint against appellee seeking compensatory and punitive damages. The complaint alleged that the letter was defamatory and that as a result of its publication, Dougherty had suffered, among other damages, a decline in his chiropractic practice.

At pre-trial conference, Dougherty isolated for the court the specific aspects of the letter which were alleged to be defamatory:

     a. "My husband went to Dr. Dougherty a total of ten times from April 29 to May 22. During that time he became worse and had to go to another doctor for treatment."

     b. The extensive discussion during the course of the letter with reference to the various charges made by the plaintiff for his services.

     c. "I would like to warn others to beware of extra charges and treatments which, at least for us, were ineffective and possibly harmful."

The case was tried before a jury on December 5, 8, 9 and 10, 1986. At the conclusion of Dougherty's case, the trial court entered a compulsory non-suit pursuant to the newspaper's motion.

Dougherty filed post-trial motions seeking removal of the non-suit and a new trial. Following oral argument and consideration of the parties' briefs, the trial court denied Dougherty's post-trial motions in an order dated May 7, 1987. Dougherty filed a timely appeal to this Court. Dougherty has raised four issues for consideration on appeal:

Did the lower court err by granting a compulsory non-suit after determining that the published letter was capable of a defamatory interpretation by the jury?

[ 377 Pa. Super. Page 470]

Did the lower court err by determining that certain statements in the published letter were opinions based upon disclosed facts?

Did the lower court err by ruling that the subject matter of the letter was a matter of public concern and by imposing the burden of ...


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