The opinion of the court was delivered by: Robert Simpson, Judge
Submitted: March 12, 2012
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
In this appeal from a dismissal of a complaint raising defamation claims, Victor and Stephanie Balletta, Michael and Susan Proetto, and Michael Reis (collectively, Appellants) ask whether the Court of Common Pleas of Northampton County (trial court) erred in sustaining the preliminary objections filed by the Northampton County Solicitor‟s Office, the Northampton County Sheriff‟s Office, Assistant County Solicitor Christopher Spadoni, and Deputy Sheriff Dave Ruberry (collectively, Appellees). Appellants contend the trial court erred in: (1) failing to recognize the existence of a cause of action for monetary damages pursuant to Article I, Section 1 of the Pennsylvania Constitution based on injury to reputation; (2) determining Appellees were entitled to an immunity-based dismissal of Appellants‟ suit; (3) concluding that Appellants‟ averments were legally insufficient to state a claim for defamation as set forth in Section 8343 of the Judicial Code, 42 Pa. C.S. §8343, and case law; (4) denying Appellants leave to amend their complaint; and, (5) dismissing Appellants‟ derivative loss of consortium claims. Upon review, we affirm.
I. Factual and Procedural Background
Through their Third Amended Civil Action Complaint,*fn1 Appellants aver the following facts.*fn2 On October 10, 2008, Appellants Michael Proetto, Michael Reis, and Victor Balletta sought to purchase property at a Northampton County Sheriff‟s sale. They arrived at the sale and attempted to submit bids on nine foreclosed properties. However, Deputy Sheriff Dave Ruberry ignored the bids because they were not predicated on credit. Instead, as they indicated in advance of the sale, Proetto, Reis, and Balletta intended to purchase the foreclosed properties with gold and silver. Prior to the sale, no one advised Appellants that their bids in gold and silver would not be accepted. Five days after the sale, Appellants sent the Northampton County Sheriff‟s Office affidavits further memorializing their bids on the nine properties.
On October 29, 2008, The Morning Call newspaper published, in print and online, an article about Appellants‟ failed attempts to purchase the foreclosed properties. Reproduced Record (R.R.) at 159a-60a. The article included statements from Appellant Michael Proetto and Appellees Deputy Sheriff Ruberry and Assistant Solicitor Spadoni. In relevant part, the article stated:
"Ruberry thinks [that Appellants] are anarchists ...
[Ruberry] speculated the three men might be part of an anarchist movement engaging in a paper terrorism‟ campaign to clog the courts." R.R. at 160a.
"Spadoni ... said they may simply be opportunists. Most of the properties the men made unsuccessful bids on were bought by the banks holding the mortgages. By challenging the sales, the men could hold up the bank‟s ability to sell the property for up to two years, Spadoni said." Id.
"Ruberry believes the men may be fellow travelers of antigovernment groups such as the Sovereign Citizen, Posse Comitatus and Liberty Dollar movements that believe paper money is not legal tender." Id.
"Proetto said while he and his colleagues may hold similar philosophies to those organized groups, they are not associated with any of them and are not on an anti-government campaign. ... We‟re just three guys trying to buy $4 million worth of property with gold and silver - the only real money that was bid." Id.
In the article, Proetto also stated the successful bids, which were offered in "illegitimate paper money" used "worthless paper money backed by nothing more than black ink." R.R. at 159a.
Appellants further averred, "[c]ommencing on or about October 28, 2008 and continuing thereafter, [Appellees] made and published newspaper and internet stories defaming [Appellants]. [Appellees] falsely stated and implied that [Appellants] were terrorists, anarchists, and members of anti-government and extremist groups. ..." R.R. at 144a. Appellants allege Appellees made these statements "in an attempt to, [among other things], create a false impression of [Appellants] so as to de facto preclude [Appellants] from future sales." Id.
Appellants further alleged Appellees‟ statements were false, that Appellees made their statements intentionally or with reckless disregard for the truth, resulting in injury to Appellants. Specifically, Appellants averred, since The Morning Call printed the defamatory statements, Appellants: "have been threatened; approached by extreme/radical groups mentioned in the [a]rticle; have lost business opportunities, had their endangered families [sic]; Proetto requires psychiatric care; and[,] Balletta purchased firearms for protection." R.R. at 144a- 45a.
Based on these averments, Count I of Appellants‟ complaint alleged a claim for "DEFAMATION/PENNSYLVANIA CONSTITUTIONAL CLAIM" premised on Article I, Section 1 of the Pennsylvania Constitution. Additionally, Appellants Stephanie Balletta and Susan Proetto alleged claims for loss of consortium. Based on these claims, Appellants sought the following relief: an injunction (including monitoring and education); statutory damages; compensatory damages; and, punitive damages.
Appellees responded by filing preliminary objections in the nature of a demurrer. They also asserted immunity from suit under the act commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act). See 42 Pa. C.S. §§8541-8542.
Ultimately, the trial court issued an opinion and order in which it sustained Appellees‟ preliminary objections. More particularly, the trial court rejected Appellants‟ claim that the Pennsylvania Constitution creates a private right of action for defamation. The trial court noted that Pennsylvania courts consistently hold that Article I, Section 1 of the Pennsylvania Constitution provides Pennsylvania citizens with certain guarantees, including the right to reputation, of which the government may not deprive them without due process. See Erdman v. Mitchell, 207 Pa. 79, 56 A. 327 (1903). However, the trial court stated, Pennsylvania courts have not interpreted the Pennsylvania Constitution as a self-executing basis for a defamation suit. Further, even if the Pennsylvania Constitution created such a cause of action, the trial court explained, Appellants‟ claim could not proceed because neither statute nor case law authorizes an award of monetary damages for a violation of the Pennsylvania Constitution. See Jones v. City of Phila., 890 A.2d 1188 (Pa. Cmwlth. 2006) (en banc).
As to Appellants‟ defamation claims against the Sheriff‟s Office and the Solicitor‟s Office that were not based on the Pennsylvania Constitution, the trial court held these entities were immune from suit under the Tort Claims Act. Similarly, the trial court determined Deputy Sheriff Ruberry and Assistant Solicitor Spadoni were immune from suit under the Tort Claims Act. To that end, the trial court stated Appellants did not allege that Deputy Sheriff Ruberry or Assistant Solicitor Spadoni acted in their individual capacities or otherwise acted outside the scope of their official duties. To the contrary, Appellants alleged that at all material times, Ruberry and Spadoni acted in their official capacities as employees or agents of their respective County offices. Thus, the trial court determined Ruberry and Spadoni enjoyed immunity from Appellants‟ suit.
In addition, the trial court stated that even if the Tort Claims Act
did not shield these county employees from suit, it would nevertheless
sustain Appellees‟ demurrer. Specifically, the trial court stated
Ruberry‟s comments regarding Appellants‟ political affiliations or
philosophies could not, as a matter of law, be defamatory. See Rybas
v. Wapner, 457 A.2d 108 (Pa. Super. 1983); Lawrence v. Welker, 9 Pa.
D. & C. 5th 225 (C.P. Centre 2009). Further, Ruberry‟s comment that
Appellants "might be part of an anarchist movement engaging in a
paper terrorism‟ campaign to clog the courts," R.R. at 160a, was not
capable of defamatory meaning. In support, the trial court noted that
not every embarrassing or annoying publication is actionable. Rybas.
Finally, the trial court stated Spadoni‟s comment that Appellants "may
simply be opportunists" was pure opinion that was not capable of a
defamatory meaning. See Alston v. PWPhiladelphia Weekly, 980 A.2d
215 (Pa. Cmwlth. 2009).
The trial court also sustained Appellees‟ preliminary objections to Appellants‟ loss of consortium claims on the ground that such claims are derivative; therefore, they could not survive in light of the dismissal of the underlying defamation claims. Thus, the trial court dismissed Appellants‟ complaint with prejudice. Appellants appealed.*fn3
On appeal, Appellants contend the trial court erred in: (1) failing to recognize the existence of a cause of action for monetary damages pursuant to Article I, Section 1 of the Pennsylvania Constitution based on injury to reputation;
(2) determining Appellees enjoyed immunity from Appellants‟ suit; (3) concluding Appellants‟ averments were legally insufficient to state a claim for defamation as set forth in Section 8343 of the Judicial Code and case law; (4) denying Appellants leave to amend their complaint; and, (5) dismissing Appellants‟ derivative loss of consortium claims.
A. Pennsylvania Constitutional Claim
Appellants initially assert this Court should reverse the trial court and clearly hold a self-executing constitutional tort for defamation exists. Appellants acknowledge the issue of whether a viable claim for "constitutional defamation" exists in Pennsylvania is an issue of first impression. They point out that in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), our Supreme Court established four factors a party must brief in a case implicating a provision of the Pennsylvania Constitution: (1) the text of the Pennsylvania constitutional provision; (2) history of the provision, including Pennsylvania case law; (3) related case law from other states; and, (4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.
Applying these factors, Appellants first assert Article I, Section 1 of the Pennsylvania Constitution recognizes that an individual‟s interest in his reputation is on equal footing with an individual‟s interests in property and the pursuit of happiness.
As to the second factor, regarding the history of the constitutional provision, Appellants point out the Pennsylvania Constitution, which preceded the U.S. Constitution, recognizes reputation as a fundamental interest of unique importance. See Castellani v. Scranton Times, L.P., 598 Pa. 283, 956 A.2d 937 (2008) (McCaffrey, J., dissenting); see also R. v. Dep‟t of Pub. Welfare, 535 Pa. 440, 636 A.2d 142 (1994) (citing Hatchard v. Westinghouse Broad. Co., 516 Pa. 184, 532 A.2d 346 (1987)). Appellants maintain in Hatchard our Supreme Court stated a remedy must exist for injuries to reputation. See also Sprague v. Walter, 518 Pa. 425, 543 A.2d 1078 (1988) (state constitutional interest existed in providing redress for defamation). Comparing Article I, Section 1 of the Pennsylvania Constitution with the Declaration of Independence as well as the Fifth Amendment to the U.S. Constitution, Appellants assert, the Pennsylvania Constitution grants a reputation interest that is not found in the U.S. Constitution.
As to the third factor, Appellants acknowledge there is a lack of case law from other jurisdictions that recognizes a state constitutional tort for defamation. Further, Appellants point out, while the State of Illinois Constitution recognizes reputation in a manner similar to the Pennsylvania Constitution, a federal court in Illinois determined this reference was meant merely as a philosophy rather than creation of a right. Jacobson v. Nat‟l R.R. Passenger Corp., No. 97 C 6012, 1999 WL 1101299 (N.D. Ill., filed Nov. 29, 1999).
As to the fourth factor, relating to policy considerations, Appellants argue, as Justice McCaffrey expressed in his dissenting opinion in Castellani, our founders intended to create a state civil rights remedy for Pennsylvania‟s citizens where state officials violate a citizen‟s constitutional reputation interest through defamation. Appellants point out that in Jones, this Court, in considering whether state constitutional provision grants a private remedy, elucidated two possibilities:
(1) pursuant to Section 874A of the Restatement (Second) of Torts; or, (2) where the constitutional provision at issue is self-executing.
Appellants further contend in Jones this Court, citing Erdman and Hunter v. Port Authority of Allegheny County, 419 A.2d 631 (Pa. Super. 1980), recognized that Article I, Section 1 of the Pennsylvania Constitution is self- executing, and although this Court has not examined the Pennsylvania Constitution as a self-executing basis for a private cause of action for defamation, this Court should adopt a tort of constitutional defamation as espoused in Justice McCaffrey‟s dissent. Appellants further maintain this Court‟s recognition of a constitutional tort for defamation is particularly significant if we hold the Tort Claims Act shields local agencies and their employees from suit for defamation claims. Thus, Appellants ask this Court to hold, for the first time, that there exists a selfexecuting constitutional tort in defamation for which there exists a legal remedy or, in the alternative, that this Court adopt Section 847A of the Restatement (Second) of Torts. See Jones.
Article I, Section 1 of the Pennsylvania Constitution states: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." PA. CONST. art I, §1 (emphasis added); see also PA. CONST. art I, §11 ("All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. ...") (Emphasis added).
Appellants are correct that the Pennsylvania Supreme Court acknowledged that the Pennsylvania Constitution establishes reputation as a fundamental right that cannot be abridged without compliance with state constitutional standards of due process and equal protection. Hatchard. However, as Appellants concede, there is no Pennsylvania case that creates a cause of action for monetary damages for "constitutional defamation." To that end, although Appellants cite Justice McCaffrey‟s dissenting opinion in Castellani as recognizing that possession and protection of an individual‟s reputation is an inherent and indefeasible right, Justice McCaffrey did not opine that a cause of action for "constitutional defamation" should be recognized. Additionally, none of the other cases referenced by Appellants suggest that a cause of action for "constitutional defamation" should exist. See R. v. Dep‟t of Pub. Welfare; Sprague; Hatchard. To the contrary, based on the language of Article I, Sections 1 and ...