the statements he made are false. Pursuant to Pennsylvania law, truth is an absolute defense, Corabi, 441 Pa. at 449, and the defendant has the burden of proving that the statement is substantially true. Chicarella v. Passant, 343 Pa. Super. 330, 341, n.5, 494 A.2d 1109 (1985); Corabi, 441 Pa. at 450.
Simms claims that "there is simply no evidence to support a claim that what Simms wrote to the shareholders was false." Simms claims that absent the Flacks pleading the issue of falsity in their original complaint, the statements cannot be defamatory. However, the Flacks are correct in stating that they do not have to prove falsity in their defamation case. See Corabi, 441 Pa. at 449.
The Flacks submitted to this Court portions of the transcript from Simms' deposition, at which he was questioned about the basis for making the statements. When asked whether he was speculating that the Flacks had influence over the state courts, Simms responded "absolutely." Doc. 133, App. A, 134. When asked what facts he had in his possession that the Flacks had influenced the local courts, Simms responded: "I had no facts one way or another relating to that. I made clear that I could not fathom the reason that they took that action." Doc. 133, App. A, 136.
When asked whether he believed that the Flacks could have gone to another lending institution and obtained a loan at an interest lower than what Exeter received from the Flacks, Simms responded: "I don't know. I have no way of knowing. I didn't try to do it." Doc. 133, App. A, 132.
When asked whether he knew for a fact that Exeter's counsel was paying the Flacks' legal expenses, Simms stated that all he could do was speculate, and that "it strongly indicated to me without actually looking at invoices and checks that the company was paying for all legal action in defense of this lawsuit." Doc. 133, App. A, 139; 138. It appears from a review of the pleadings and affidavits that Simms has not met his burden of showing that the statements are true.
Simms' Claim that the Statements Were Merely Opinion
Simms next claim that "expressions of opinion are not actionable." It is true that generally, an opinion is not actionable as defamatory. Elia v. Erie Insurance Exchange, 430 Pa. Super. 384, 390, 634 A.2d 657 (1993), appeal denied, 537 Pa. 662, 644 A.2d 1200 (1994). However, "an opinion can be defamatory if there are certain undisclosed facts justifying the opinion that are understood to be defamatory." Fort Washington Resources, Inc. v. Tannen, 846 F. Supp. 354, 365 (E.D. Pa. 1994). Additionally, if the underlying facts are false, the opinion is not protected. Burns v. Supermarkets General Corporation, 615 F. Supp. 154, 158 (E.D. Pa. 1985) (quoting Redco Corporation v. CBS, Inc., 758 F.2d 970, 972 (3d Cir.), cert. denied, 447 U.S. 843 (1985)).
Whether the statement or writing constitutes fact or opinion is a question of law for the court to determine. Elia, 430 Pa. Super. at 390. After reviewing the transcripts, we feel that Simms' statements contained in the letters are not based on his opinion.
For example, Simms stated during his deposition that he was speculating when he stated that the Flacks had certain influence over the state courts. When asked about whether he thought that Exeter could have received a loan from a commercial lender at a lower rate than that obtained from the Flacks, Simms stated that "he had no way of knowing." Doc 133, App. A, 132; 136. If there were no facts from which Simms could formulate an opinion that the Flacks were receiving a financial benefit at the expense of Exeter, then Simms' statement could not have been in the form of an opinion. Simms also stated that he was speculating that Exeter was paying the legal expenses which the Flacks incurred in defending this case. Doc. 133, App. A, 138-9.
The Flacks' Proof of Harm
Lastly, Simms claims that the Flacks have not suffered harm to their reputation. In a defamation action, the plaintiff must prove, inter alia, special harm resulting from the publication of an allegedly defamatory statement. 42 Pa.C.S.A. § 8343(a)(6).
The meaning of harm encompasses impairment of reputation and standing in the community, personal humiliation, or mental anguish or suffering. Agriss, 334 Pa. Super. at 316 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974)).
Pennsylvania courts have ruled that a plaintiff need only prove injury to his reputation in order to recover. "A plaintiff in Pennsylvania need not prove special damages or harm in order to recover; he may recover for any injury done [to] his reputation and for any other injury of which the libel is the legal cause." Agriss, 334 Pa. Super. at 328.
In this case, the Flacks contend that their reputation has been tarnished by Simms, since some shareholders have contacted Simms and further inquired about the Flacks' alleged actions. Doc. 129, App. A, letter dated January 7, 1994. Harold E. Flack, II also stated in his deposition that he felt that their (both his and Charles Flacks') reputation has been damaged by Simms' statements because the Simms' accusations. We agree with the Flacks that the shareholders' further inquiry into the "'improper' and 'self-dealing' loans" is enough to establish harm to the Flacks' business reputation. Furthermore, Simms accused the Flacks of interfering with his personal mail. Doc. 129, App. A, document dated April 2, 1993, page two (2) encaptioned "some anticipated shareholder questions." This is an allegation of an indictable offense, 18 U.S.C. § 1708, and statements imputing the commission of an indictable offense are defamatory meaning as a matter of law. See Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072, 1078 (3d Cir.), cert. denied, 474 U.S. 864, 88 L. Ed. 2d 151, 106 S. Ct. 182 (1985). We are of the opinion that libelous statements such as these would definitely harm one's standing in the community.
An overall review of the facts surrounding this motion reveal too many conflicting facts for us to grant Simms' Motion for partial Summary Judgement. The record and pleadings reveal that both parties view Simms' intentions in publishing the statements contained in the shareholder letters rather differently. Therefore, summary judgement is not appropriate where such an essential fact is in dispute. "Because a jury is particularly well suited to deciding factual issues concerning a parties' intent or the reasonableness of a parties' conduct, such issues are generally not appropriate for summary adjudication by the court." Wittekamp v. Gulf & Western, Inc., 788 F. Supp. 246, 248 (W.D. Pa. 1992). In this instance, where so many essential facts are being interpreted differently, the facts must be decided by the trier of fact, and not by this Court.
For the foregoing reasons, Simms' Motion for Partial Summary Judgement (Doc. 129) is denied. An appropriate Order is attached.
Richard P. Conaboy
United States District Judge
AND NOW, THIS 10th DAY OF FEBRUARY, 1996, IT IS HEREBY ORDERED THAT the Defendant's [Simms] Motion for Partial Summary Judgment (Doc. 129) is DENIED.
Richard P. Conaboy
United States District Judge