4. Count V: Defamation
Defamation is a communication which tends to harm an individual's
reputation so as to lower him or her in the estimation of the
community or deter third persons from associating or dealing with
him or her. Elia v. Erie Ins. Exch., 634 A.2d 657, 660 (Pa. Super.
1993). 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 v. Barshak,
1999 U.S. Dist. LEXIS 5582, at *21-*22 (E.D.Pa. April 12, 1999).
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.
An essential element of a defamation action is publication.
Flaxman v. Burnett, 574 A.2d 1061, 1066 (Pa. Super. 1990); see
also Bickling v. Kent Gen. Hosp., Inc., 872 F. Supp. 1299, 1307
(D.Del. 1994). Publication is the communication, either
intentionally or by negligent act, of the alleged defamatory
statement to a third party or at least one person other than the
person defamed. Restatement (Second) of Torts, § 577. The term
publication is a technical term and does not in any sense refer to
printing or mass communication; rather it refers to any form of
defamatory communication to a third party. Id.
Here, the claim must fail because the amended complaint fails to
allege that a communication occurred. Indeed, the amended
complaint fails to allege that any of the defendants wrote, spoke
or otherwise published any statement, let alone a defamatory
statement. To the extent that the summary offense citation itself
is alleged to be defamatory, it is undisputed that the citation
was issued by Sergeant Shurr and not by any of the defendants.
Finally, plaintiff has also failed to allege to whom the allegedly
defamatory statement was published. See Gallagher v. Borough of
Downingtown, 1999 U.S. Dist. LEXIS 7498, at *11 (E.D.Pa. May 13,
1999); Suppan v. Kratzer, 660 A.2d 226, 229 (Pa. Cmwlth. 1995).
The amended complaint fails to state a claim for defamation and
therefore the motion to amend will be denied as to Count V on
grounds of futility.
5. Count VI: Intentional Infliction of Emotional Distress
"Pennsylvania courts recognize a cause of action under the
Restatment (Second) of Torts section 46 (1965) for the intentional
infliction of emotional distress." Trans Penn Wax Corp. v.
McCandless, 50 F.3d 217, 232 (3d Cir. 1995); Williams v. Guzzardi,
875 F.2d 46, 50-51 (3d Cir. 1989); Regan v. Township of Lower
Merion, 36 F. Supp.2d 245, 250 n. 2 (E.D.Pa. 1999). The tort of
intentional infliction of emotional distress is available when a
defendant engages in conduct that is deliberate or reckless,
extreme and outrageous, and causes emotional distress. Hoy v.
Dominick, 720 A.2d 745, 753-54 (Pa. 1998). The conduct complained
of must be "`so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.'"
Hoy, 720 A.2d at 754 (quoting Buczek v. First Nat'l Bank of
Mifflintown, 531 A.2d 1122, 1125 (Pa. Super.)); Mulgrew v. Sears
Roebuck & Co., 868 F. Supp. 98, 103 (E.D.Pa. 1994). This Court
concludes that the factual allegations of the amended complaint do
not satisfy this stringent standard. Craig v. Salamone, 1999 WL
213368, * 9
(E.D.Pa. Apr. 8, 1999). Moreover, plaintiff has cited no case law,
and the Court has found none, supporting the contention that a
corporation can suffer emotional distress. The amended complaint
fails to state a claim for intentional infliction of emotional
distress and therefore the motion to amend will be denied as to
Count VI on grounds of futility.
6. Punitive Damages
Punitive damages may not be awarded against municipalities under
42 U.S.C. § 1983. Newport v. Fact Concerts, Inc., 453 U.S. 247,
271 (1981); Combs v. Sch. Dist. of Philadelphia, 1999 WL 1077082,
at *2 (E.D.Pa. Nov. 29, 1999). Likewise, because official
capacity suits are in effect suits against the governmental
entity, punitive damages not available against an officer in his
or her official capacity. Gregory v. Chehi, 843 F.2d 111, 120 (3d
Cir. 1988); Combs, 1999 WL 1077082, at *2. Accordingly, the motion
to amend will be denied insofar as it seeks punitive damages from
the Borough of Royersford and from the Borough Manager, Robert
Umstead, and the Borough Solicitor, Jennifer Walters Brown, in
their official capacities.
Based upon the foregoing, the motions to dismiss will denied as
moot and the motion to amend will be granted in part and denied in
part. An appropriate Order follows.
AND NOW, this 24th day of August, 2000, upon consideration of the
motion of defendant Robert Umstead and the Borough of Royersford
to dismiss (Document No. 7), the motion of defendant Jennifer
Walters Brown to dismiss (Document No. 9) and the response
thereto, as well as the motion of plaintiffs B.J. Marchese and
B.J. Marchese Chevrolet to amend (Document No. 10) it is hereby
• The motions to dismiss of the defendants (Document Nos. 7 &
9) are DENIED WITHOUT PREJUDICE AS MOOT based upon the filing
of an amended complaint.
• The motion to amend (Document No. 10) is GRANTED IN PART
AND DENIED IN PART in accordance with the following:
A) The motion to amend is DENIED with respect to the
Counts I-VII brought on behalf of plaintiff B.J.
Marchese, an individual.
B) The motion to amend is also DENIED with respect to the
corporation B.J. Marchese Chevrolet as to Counts I, V, VI and to
the extent that the asserted claims seek punitive damages
from the Borough of Royersford or defendants Robert
Umstead and Jennifer Walters Brown in their official capacities.
C) The motion is GRANTED with respect to the joinder of B.J.
Marchese Chevrolet, a Pennsylvania corporation and the claims of
said B.J. Marchese Chevrolet contained in Counts II and
IV as well as the allegations of municipal liability
found in Count III.
IT IS FURTHER ORDERED that the Clerk of Court is directed to amend
the caption, substituting B.J. Marchese Chevrolet as plaintiff and
deleting B.J. Marchese as plaintiff.
IT IS FURTHER ORDERED that, no later than September 13, 2000,
plaintiff B.J. Marchese Chevrolet shall file an amended complaint,
in the form attached to the motion to amend as modified only to
comply precisely with the provisions of the foregoing memorandum
opinion and Order.
IT IS FURTHER ORDERED that the defendants shall respond to the
amended complaint no later than October 4, 2000.