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ARONSON v. CREDITRUST CORP.

April 23, 1998

MARK B. ARONSON, Plaintiff, -vs- CREDITRUST CORPORATION, HARDY WRIGHT, MICHAEL SALVAN, CAROLYN GREEN and SCOTT KEENE, Defendants.


The opinion of the court was delivered by: AMBROSE

OPINION and ORDER OF COURT

 Pending before the Court is Defendants', Creditrust Corp., Carolyn Green, Milton Harper Wright, Michael J. Sullivan and Gregory Scott Keene, *fn1" Motion to Dismiss/Motion to Strike the Complaint of Plaintiff Mark Aronson ("Plaintiff"). Plaintiff has alleged in his Complaint that all of the Defendants have violated his rights under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et sec., ("FDCPA") and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et. seq. ("UTPCPL"). Plaintiff also has brought a claim for defamation against Defendants Sullivan and Wright. In their Motion, Defendants ask this Court to dismiss Plaintiff's defamation claims and strike Plaintiff's request for punitive damages and attorney fees from Counts I through V and the First and Second Claims for Relief in Plaintiff's Complaint. For the reasons set forth below, the Defendants' Motion to Dismiss/Motion to Strike is granted in part and denied in part.

 I. LEGAL STANDARD FOR MOTION TO DISMISS

 In deciding a motion to dismiss, all factual allegations and all reasonable inferences therefrom must be accepted as true and viewed in the light most favorable to the plaintiff. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988). A court may dismiss a plaintiff's complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In ruling on a motion to dismiss for failure to state a claim, the court looks to "whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer." Colburn, 838 F.2d at 666.

 II. LEGAL STANDARD FOR MOTION TO STRIKE

 Under Fed.R.Civ.P. 12(c), "the court [may strike] . . . from any pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(c). Motions to strike, however, are disfavored in the absence of prejudice. In re One Meridian Plaza Fire Litigation, 820 F. Supp. 1460, 1488 (E.D. Pa. 1993), citing, J & A Realty v. Asbury Park, 763 F. Supp. 85 (D. N.J. 1991).

 III. FACTUAL BACKGROUND

 The facts of the case sub judice as alleged by Plaintiff in his Complaint that are relevant to his defamation action against Defendants Sullivan and Wright are as follows. *fn2" At a time prior to 1990, Citibank issued a consumer MasterCard to Plaintiff. Complaint, P 9. Charges were made on this account. Id. No payments were made on this account after February 18, 1991. Id. at P 10. In August, 1997, Defendant Creditrust purchased this unpaid account from Citibank. Id. at P 14. On October 14, 1997, Plaintiff spoke with Defendant Keene. Id. at P 22. During this conversation, Defendant Keene looked at some records on Plaintiff's account. Defendant Keene conveyed to Plaintiff that the records of Defendant Creditrust stated that Plaintiff had agreed to settle the matter for $ 2841.00, payable by three quick check payments each in the amount of $ 947.00 with the first payment due on October 3, 1997 and that it would have been Defendant Sullivan who put the payment schedule information on the computer. Id. at PP 22, 47DDD, 47FFF and 47KKK. Plaintiff, in fact, had never communicated with Defendant Sullivan. Id. at P25. Defendant Sullivan's entry was unauthorized and created the false scenario wherein it appeared to others that Plaintiff had entered into a settlement agreement and then breached it by not making the first payment by October 3, 1997. Defendant Keene also told Plaintiff that the computer did not indicate that Defendant Sullivan had spoken to Plaintiff. Id. at P 47LLL. Defendant Keene furthered explained to Plaintiff that according to records reviewed by Defendant Keene, Defendant Wright thereafter noted on Defendant Creditrust's records that Plaintiff was taken out of the settlement plan into which he had (purportedly) entered because of failure to pay the first payment. Id. at PP 23 and 47AAA. Defendant Wright's entry taking Plaintiff out of the settlement plan was unauthorized and created the false scenario wherein it appeared to others that Plaintiff had entered into a settlement agreement and then breached it by not making the first payment by October 3, 1997. Id. at P 24. At no time did Plaintiff offer or agree to settle the matter at hand or to pay Defendant Creditrust Corp. any money. Id. at P 26. Defendant Scott believed the information he read to Plaintiff from the computer screen. P 28.

 IV. MOTION TO DISMISS DEFAMATION CLAIMS AGAINST DEFENDANTS SULLIVAN AND WRIGHT

 With respect to his defamation claim against Defendant Wright, Plaintiff asserts: "in making a false entry on the computer at CREDITRUST taking a certain agreement out of plan, thereby inferring that Plaintiff had entered into a settlement plan but then the settlement was breached by Plaintiff, Defendant defamed Plaintiff;" (2) "as a result thereof, another employee of CREDITRUST was caused to wrongly believe that Plaintiff had reneged on a settlement with CREDITRUST which false belief Plaintiff corrected;" and (3) Plaintiff's damages were nominal." Complaint, PP 80-82.

 With respect to his defamation claim against Defendant Sullivan, Plaintiff asserts: "in making a false entry on the computer at CREDITRUST that Plaintiff had entered into a settlement with CREDITRUST, when Plaintiff had not entered into any settlement with CREDITRUST, Defendant [Sullivan] set into motion the scenario whereby said false entry was undone by a subsequent entry that the settlement was taken out of plan;" (2) as a result thereof, another employee of CREDITRUST was caused to wrongly believe that Plaintiff had reneged on a settlement with CREDITRUST which false belief Plaintiff corrected; (3) "as a result of Defendant's conduct, Plaintiff was defamed by Defendant [Sullivan];" and (4) Plaintiff's damages were nominal." Complaint, PP 84-87.

 Defendant argues three premises upon which the Motion to Dismiss should be granted: (1) the computer entries made by Wright and Sullivan cannot have a defamatory meaning; (2) Aronson fails to aver abuse of a conditional privilege; and (3) Aronson fails to aver that he suffered actual or special harm. "Because the Complaint fails to allege facts which, if proven, would establish that the subject communications were defamatory, that Aronson suffered actual or special harm as a result of their alleged publication, or that either Wright or [Sullivan] abused a conditional privilege to publish the alleged statements, defendants' Motion regarding the defamation claim must be granted." Defendants' Brief, p. 5.

 Under Pennsylvania law, in an action for defamation, the plaintiff must prove: (1) the defamatory character of the communication; (2) the publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. Elia v. Erie Ins. Exchange, 430 Pa. Super. 384, 634 A.2d 657, 659 (Pa.Super. 1993), appl. den'd, 644 A.2d 1200 (1994). See also Jaindl v. Mohr, 432 Pa. Super. 220, 637 A.2d 1353, 1358 (1994), aff'd, 541 Pa. 163, 661 A.2d 1362 (1995); Maier v. Maretti, 448 Pa. Super. 276, 671 A.2d 701, 704 (Pa.Super. 1995), appl. den'd, 548 Pa. 637, 694 A.2d 622 (1997)..

 Initially, the court must determine whether the communication complained of is capable of a defamatory meaning. Id. "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 persons from associating or dealing with him." Id. "A communication is also defamatory if it ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct for his proper business, trade or profession." Id. Further, when considering whether a communication is defamatory, the nature of the audience is a ...


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