The opinion of the court was delivered by: Lowell A. Reed, Jr., S.J.
Defendant Lojack Corporation has filed a motion to dismiss
plaintiffs' complaint for failure to state a claim upon which
relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). Upon
consideration of defendant's motion (Document No. 2), plaintiffs'
response (Document No. 6), and the evidence submitted therewith,
the motion will be granted in part and denied in part.
On Friday, July 18, 1997, a blue Lexus automobile was
reported stolen in West Philadelphia. Unbeknownst to the thieves,
the car was equipped with a tracking device made by defendant
LoJack Corporation ("LoJack"). The tracking device led police to
a garage in East Frankford, where the stolen car was discovered.
Evidence gathered at that garage in turn led police to probe
another group of garages. A raid of the garages on July 21, 1997,
yielded 13 stolen automobiles and four arrests. Among those
arrested was plaintiff Peter Fanelle ("Fanelle"). Fanelle was
later found not guilty of the charges stemming from his arrest.
The Philadelphia Inquirer ran an article about the vehicle
recoveries and arrests on July 23, 1997. The article named
Fanelle as one of the four arrestees and included a "mug shot" of
Fanelle. In his complaint, Fanelle alleges that in August 1998,
it was "brought to (his) attention . . . that promotional literature
and/or a brochure prepared by agents, servants and/or employees of
Lojack Corporation had been distributed in Philadelphia County and
elsewhere which employed the use of the July 23, 1997 article. . . ."
(Complaint, at ¶ 10).
The brochure, entitled "LoJack Stolen Vehicle Police Recovery
Network," included national and local statistics on car thefts,
the above-mentioned Philadelphia Inquirer article in which Fanelle
appears, testimonials and vignettes about car thefts and the
effectiveness of the LoJack system, a reproduction of a
BusinessWeek magazine article about LoJack, an award certificate
given to LoJack by Consumers Digest, and a break-down of typical
costs to the victim associated with car theft. (Defendant LoJack
Corporation's Motion to Dismiss Plaintiffs' Complaint Under
Federal Rule of Civil Procedure 12(b)(6), Exhibit 1).
The instant action, initially filed in the Court of Common
Pleas of Philadelphia County and then removed to this court
pursuant to 28 U.S.C. § 1441, et seq., consists of four counts.
Three counts are asserted by Peter Fanelle: defamation, false
light, and appropriation, and the final count appears to make
three different claims on behalf of plaintiff Susan Fanelle, the
wife of Peter Fanelle: loss of consortium, and intentional and
negligent infliction of emotional distress. Defendant argues that
plaintiffs have failed to state any claim for relief.
Rule 12(b) of the Federal Rules of Civil Procedure provides
that "the following defenses may at the option of the pleader be
made by motion: . . . (6) failure to state a claim upon which relief
can be granted." In deciding a motion to dismiss under Rule
12(b)(6), a court must take all well pleaded
facts in the
complaint as true and view them in the light most favorable to the
plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843
(1969). Because the Federal Rules of Civil Procedure require only
notice pleading, the complaint need only contain "a short and
plain statement of the claim showing that the pleader is entitled
to relief." Fed.R.Civ.P. 8(a). A motion to dismiss should be
granted if "it is clear that no relief could be granted under any
set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104
S.Ct. 2229, 2232 (1984).
Plaintiffs suggest that New Jersey law governs this action.
Where no effective choice of law has been made, Pennsylvania
applies a two-part choice of law analysis. See Lacey v. Cessna
Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991). First, the court
must determine whether an actual conflict exists. "Where the
different laws do not produce different results, courts presume
that the law of the forum state shall apply." Financial Software
Systems, Inc. v. First Union Nat'l Bank, No. 99-623, slip op. at 6
(E.D.Pa. Dec. 16, 1999) (citing MacFadden v. Burton, 645 F. Supp. 457,
461 (E.D.Pa. 1986)); Denenberg v. American Family Corp.,
566 F. Supp. 1242, 1251 (E.D.Pa. 1983), superseded on other grounds
as explained in Miniscalo v. Gordon, 916 F. Supp. 478, 481
(E.D.Pa. 1996). If the states' laws produce different results, the
court must determine whether a false conflict exists; that is, if
only one jurisdiction's governmental interests would be impaired
by the application of another jurisdiction's law. See
Petrokehagias v. Sky Climber, Inc., Nos. 96-6965, 97-3889, 1998
U.S. Dist. LEXIS 6746, at *10 (E.D.Pa. May 1, 1998) (citation
omitted). Second, where a true conflict exists, the court must
ascertain which state has the greater interest in the application
of its law. See LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1070
(3d Cir. 1996) (citations omitted).
Plaintiffs do not argue that the laws of Pennsylvania and New
Jersey will produce different results on any of the claims made in
the complaint. See McFadden, 645 F. Supp. at 461. A review of the
relevant law reveals that the result on any of the claims stated
will not be different under Pennsylvania or New Jersey law, and
thus there is no actual conflict.*fn1 Therefore, I will apply
the law of the forum state, Pennsylvania, in analyzing plaintiffs'
Plaintiffs' defamation claim is sufficient to survive a
motion to dismiss. The test of defamatory meaning is the effect
the statement would fairly produce, or the impression that it
would naturally engender, in the minds of the average persons
among whom it is intended to circulate. See Rockwell v. Allegheny
Health, Educ. & Research Found., 19 F. Supp.2d 401, 404-05
(E.D.Pa. 1998) (citing Corabi v. Curtis Publ'g Co., 441 Pa. 432,
273 A.2d 899, 904 (1971)). It is reasonable to infer from the
complaint that the persons intended to receive the LoJack brochure
were persons interested in protecting their cars from theft. The
inclusion of the Inquirer article containing the picture and name
of Peter Fanelle along with the circumstances of his arrest, in
and amongst vignettes and statistics about car theft, could have
given the average person interested in protecting her car from
theft the impression that Peter Fanelle was a car thief or illegal
chop-shop operator apprehended as a result of LoJack's tracking
device. Such an impression may "harm the reputation of another as
to lower him in the estimation of the community or deter third