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Joan Krajewski v. Fred Paul Gusoff

August 14, 2012

JOAN KRAJEWSKI, APPELLANT
v.
FRED PAUL GUSOFF, JOHN SCANLON, PHILLY ONLINE, LLC, PHILADELPHIA NEWSPAPERS, LLC, DBA BROAD STREET COMMUNITY NEWSPAPERS, AND BROAD STREET PUBLISHING, LLC, APPELLEE



Appeal from the Order Entered July 20, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): December Term, 2009, No. 1828

The opinion of the court was delivered by: Bender, J.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, J., and COLVILLE, J.*fn1

OPINION BY BENDER, J.

Joan Krajewski appeals the trial court's order granting preliminary objections in the nature of a demurrer and dismissing her claims of libel and false light invasion of privacy against defendants Fred Paul Gusoff; John Scanlon; Philly Online, LLC; Philadelphia Newspapers, LLC, doing business as Broad Street Community Newspapers; and Broad Street Publishing, LLC (collectively "the Newspapers"). Krajewski contends that the allegations of her complaint, if accepted as true, were legally sufficient to sustain her claims and that, consequently, the trial court erred in granting the demurrer.

The trial court, the Honorable Patricia A. McInerney, concluded that the Complaint's averments failed to state claims of defamation as Krajewski, in her capacity as a public official, could not demonstrate that the information the Newspapers published was in fact false. We agree with the distinguished trial court concerning three of those claims for the reasons Judge McInerney explained in her opinion. We differ with the court's conclusions, however, in our disposition of Krajewski's libel claim concerning the Holmesburg Library and all of her claims of false light invasion of privacy. The court concluded that proof of a false light privacy claim mandates allegations and proof sufficient to show "falsity [and] actual malice," neither of which the court discerned in the articles the Newspapers published. Trial Court Opinion, 9/29/11, at 31. The court reasoned, in addition, that Krajeski's claims might be otherwise unsustainable as the matters the articles raised were of "legitimate concern to the public." Id. (citing Rush v. Philadelphia Newspapers, 732 A.2d 648, 654 (Pa. Super. 1999)). The court also recognized, however, that in view of apparent conflict in our decisional law defining the elements of false light invasion of privacy, "this issue is better left to the Superior Court." Id.

Upon review of the trial court's analysis of Krajeski's false light claims, we accept the court's invitation to clarify our jurisprudence defining false light invasion of privacy as a cause of action. Accordingly, we differentiate false light from other invasion of privacy claims, delineate the elements of false light as a cause of action, and consider the extent to which falsity must be demonstrated to substantiate a claim. To aid in our discussion, we recite the pertinent factual and procedural history of this case as ably chronicled in Judge McInerney's Rule 1925 Opinion:

[I]n this action Philadelphia City Councilwoman Joan Krajewski ("Councilwoman Krajewski" or "Plaintiff") asserted causes of action for defamation and false light invasion of privacy based on the contents of a series of editorials, columns, cartoons, and letters to the editor published in the Northeast Times which to varying degrees commented critically upon her enrollment in the City of Philadelphia's Deferred Retirement Option Plan ("DROP") and/or subsequent acceptance of a $274,587.13 DROP payment following a one-day retirement between terms on the Council of the City of Philadelphia ("City Council"). Pursuant to DROP, a City of Philadelphia ("City") employee who elects to participate may only continue to work for the City for a maximum of four years [after electing to participate in DROP]. (See P1.'s Am.

Compl. ("Compl.") ¶¶ 8-9). Thus, by enrolling in DROP, the employee makes a commitment to retire within the next four years. While the employee remains working, a monthly pension payment for that employee is credited to a tax-deferred, interest-bearing account. (Compl. ¶ 9). The employee receives the balance of the payments and interest as a lump sum upon retirement. (Compl. ¶ 10). The election to participate in DROP is irrevocable. (Compl. ¶ 8).

In 2004, having served on City Council since 1979, and having been elected to a four-year term ending in early January 2008, Plaintiff enrolled in DROP and made the decision to retire.

(See Compl. ¶¶ 5, 11, 19-21). Later, however, Plaintiff considered not retiring, but rather running for another four-year term on City Council. (See Compl. ¶¶ 11-12, 13, 15).

Relatedly, at the time she was considering a bid for re-election, Plaintiff spoke with then Philadelphia City Solicitor, Romulo Diaz, Esquire, (The "City Solicitor") about withdrawing from DROP. (Compl. ¶ 15). The City Solicitor informed her that she could not withdraw from DROP. (Compl. ¶ 16). The City Solicitor, however, informed Plaintiff that if she won re-election, she could retire for one day at the conclusion of her existing term of office to fulfill the DROP requirement and then take the DROP payment and return for her new term of office. (Comp. ¶ 16).

Around the time Plaintiff spoke with the City Solicitor, City Council President Anna Verna, in a request for advice, also sought the opinion of the City Solicitor regarding employment of City Council members who had or would enter DROP during their current terms of office and then win re-election. (See Compl. ¶¶ 16, 29, 31, 33). Consistent with what he told Plaintiff, the City Solicitor advised City Council President Verna in a letter that such City Council members could separate from City service and return no later than January 3, 2008 and be [formally] retired for at least one working day, after which they could become rehired retirees upon being sworn in to their re-elected positions, and that would be in compliance with the Philadelphia Code. (See Compl. ¶¶ 16, 29, 31, 33).

In January of 2007, Plaintiff announced her intention to run for re-election. (Compl. ¶¶ 19-20). Plaintiff subsequently ran and won the election for another four-year term on City Council, this one beginning in January 2008. (See Compl. ¶¶ 21, 33). Before beginning that term[,] Plaintiff retired for one day. (See Compl. ¶ 21). Shortly thereafter, Plaintiff received a DROP payment of $274,587.13 (See Compl. ¶¶ 21, 24). Currently, serving out this most recent term of office, Plaintiff remains a member of City Council. (See Compl. ¶¶ 5, 21).*fn2

On December 18, 2009, the instant action was commenced by a writ of summons. The defendants named were: Fred Paul Gusoff; John Scanlon; Philly Online, LLC; Philadelphia Newspapers, LLC; and Broad Street Publishing, LLC ("Defendants"). Defendants are editors and publishers of the Northeast Times, a local Philadelphia newspaper. On March 10, 2010, the case was deferred due to the filing of a suggestion of bankruptcy for Philly Online, LLC; Philadelphia Newspapers, LLC; and Broad Street Publishing, LLC. While the case was deferred[,] Plaintiff filed a complaint against Defendants for defamation and false light invasion of privacy pursuant to a stipulation which allowed for the filing of the complaint. The case was removed from deferred status on April 4, 2011. On April 8, 2011, preliminary objections to the complaint were filed. On April 28, 2011, an amended complaint was filed.

In her amended complaint Plaintiff averred that in spite of the Northeast Times' endorsement of her on November 1, 2007, less than a month later Defendants "began their abuse of the Councilwoman in the Northeast Times . . . ." (Compl. ¶ 21).

According to Plaintiff, this abuse was Defendants' "systematic efforts to misrepresent the facts and manipulate their readers regarding the Councilwoman's DROP Payment [,]" which was exemplified by the following January 10, 2008 "plea" to their readers:

Do as mayor what [Michael Nutter] couldn't do as councilman: Prohibit all elected officials from participating in the Deferred Retirement Option Plan. By the way, Councilwoman Joan Krajewski, who's collecting about $300,000 in retirement benefits even though she is not retiring, claims that she has not received a single call from citizens complaining about her acceptance of the bonanza. Readers, call Joan Krajewski's City Hall office and instruct her not to rip you off. The phone number is 215-686- 3444.

You're her boss, remember?

(See Compl. ¶¶ 21-25). According to Plaintiff,

Defendants' "plea" falsely and/or with a reckless disregard for the truth implied that Councilwoman Krajewski could withdraw from participation in the DROP plan, despite [D]efendants' knowledge that the City of Philadelphia ordinance creating the DROP and the Philadelphia Board of Pensions and Retirement regulations implementing the DROP barred any employee who has enrolled in the DROP from rescinding her enrollment, and the City's Personnel Department had so advised.

(Compl. ¶ 26).

In her amended complaint, Plaintiff complained about a number of other publications as well. For example, Plaintiff averred that:

On January 17, 2008, defendant Scanlon attacked Krajewski, and others, as "greedy politicians" and called the legal opinion supporting the DROP payments received by [City Commissioner]

Tartaglione, Councilwoman Krajewski and other members of City Council the "Krajewski Clause,"

placing the Councilwoman in a false light with his malicious and reckless words, which falsely implied that Councilwoman Krajewski had requested a legal opinion that would permit her to remain in the DROP program without retiring and disregarded Councilwoman Krajewski's effort to withdraw from the DROP program and the ...


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