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January 12, 2000


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' claims.

A. Defamation

Under Pennsylvania law, a plaintiff in a defamation action has the burden of proving the following: (1) the communication was defamatory; (2) publication by the defendant; (3) the communication applies to plaintiff; (4) the recipient of the communication understands the communication's defamatory meaning; (5) the recipient understands the communication to be intended to apply to plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. See 42 Pa.C.S.A. § 8343; see also Kiffin, 1999 U.S. Dist. LEXIS 5582, *at 21-22. Defendant bears the burden of proving (1) the truth of the defamatory communication; (2) the privileged character of the publication; and (3) that the subject matter was of public concern. See 42 Pa.C.S.A. § 8343.

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 persons ...

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