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F. Earl Reed, Iii v. Tonette Pray

August 22, 2012


The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: May 15, 2012



Appellant F. Earl Reed, III (Reed), appeals from the May 12, 2011, and June 28, 2011, orders of the Court of Common Pleas of Delaware County (trial court). In those orders, the trial court entered summary judgment in favor of Appellees Tonette Pray (Pray), Martha Van Auken, Arthur Van Auken, Julius Coles (Coles) (collectively, Individual Appellees), and the Borough of Colwyn (Borough). The trial court dismissed Reed's complaint against Individual Appellees and the Borough with prejudice and denied Reed's motion for leave to amend his complaint. We affirm in part, reverse in part, and remand the matter for further proceedings.


Reed is a former member of the Borough Council. In 2006, as chair of the Borough's finance committee and a member of the Colwyn Fire Company, Reed spearheaded the Fire Company's effort to purchase a new fire truck for $262,000. The Fire Company had successfully raised a portion of the purchase price, but a $115,000 shortfall remained. To cover the shortfall, Reed requested a $15,000 advance from the Borough, which the Borough Council later approved. As to the balance of the shortfall, Reed championed the idea of securing a $100,000 advance from the Borough's sewer fund, which in turn would be loaned to the Fire Company to finance the balance of the shortfall. On August 23, 2006, Reed called an emergency Borough Council meeting to approve the loan. It is undisputed that the Fire Company eventually received a $100,000 loan from the sewer fund. Pray and Martha Van Auken were also members of the Borough Council. From the time of the idea's inception, Pray and Van Auken were opposed to the sewer fund loan, even questioning its legality. In October 2006, Pray brought her concerns over the legality of the loan to the attention of the Colwyn Police Department, which referred the matter to the Delaware County District Attorney's Office. No formal charges were ever filed. This, however, was not the end of the matter.

The loan became a hot button in local politics, pitting Pray, Martha Van Auken, and Coles (also on Borough Council), against Reed and his supporters. In the context of the debate, Reed claims that, at certain polling places on Election Day in November 2008, Martha Van Auken and Coles stated in the presence of numerous voters and other persons that "Earl Reed took $100,000 from Colwyn," referring to the above-referenced loan to the Fire Company. Reed also alleges that, months later, Arthur Van Auken (Martha's spouse) shouted out at a local Home Depot store that "Earl Reed took $200,000 from Colwyn," referring again the purchase of the fire truck.

Based on the above allegations, Reed filed his Complaint on July 31, 2009, asserting a common law defamation claim against Pray, for reporting her concerns to the Colwyn Police Department, and Martha and Arthur Van Auken and Coles for their public statements that Reed "took" money from the Borough and seeking, inter alia, punitive damages. With regard to the Borough, Reed alleged that the Borough improperly released to the media a confidential document about the 2006 criminal investigation of Reed titled "Colwyn Police Investigation Time Line" (Timeline).

In November 2010, Pray, Martha Van Auken, Coles, and the Borough filed a motion for summary judgment. Reed requested additional time to conduct discovery and to respond to the motion, which the trial court granted. On February 28, 2011, the trial court heard oral argument on the motion. Thereafter, Reed filed a motion to amend his complaint. On May 12, 2011, in separate orders, the trial court granted the motion for summary judgment and denied Reed's motion to amend his complaint. Arthur Van Auken filed a separate motion for summary judgment, which the trial court granted on June 28, 2011. Reed filed a timely appeal, challenging the trial court's dismissal of his complaint on summary judgment and denial of his request to file an amended pleading.

In an opinion filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)(1), the trial court detailed its reasoning behind the orders on appeal. With respect to the statements that Reed "took" $100,000 or $200,000 from the Borough, the trial court found that such statements were not defamatory as a matter of law. The trial court reasoned:

[I]t is inconceivable how any reasonable person could consider such statements made by the individual Appellees to be slanderous. The statements do not suggest criminal conduct on the part of Mr. Reed, nor do the statements suggest that Mr. Reed personally benefited from taking a sum of money from the Borough. Moreover, the statements concerned a hot-button political issue within the Borough at a time when the individual Appellees were campaigning against Mr. Reed's political party. True, the statements may have been made to lower Mr. Reed's status and deter third persons from associating with him in the political arena, but absolutely nothing about those statements suggest that any average person would conclude from those statements that Appellees were attempting to lower Mr. Reed's status and deter third persons from associating with him personally. If anything, these statements can be considered a statement of opinion regarding Mr. Reed and his political party's handling of Borough affairs while in elected office, which of course does not constitute slander.

(Opinion, 8/11/2011, at 6 (emphasis in original).)

With respect to Pray, the trial court held that Pray cannot be held liable for defamation where, in the context of her official capacity as a member of Borough Council, she expressed her concern over the legality of the loan to the Fire Company to local law enforcement authorities. With respect to Reed's claim that the Borough inappropriately released documents related to its criminal investigation of the loan to local media, the trial court noted an absence of any admissible evidence that the Borough did so. Even if the Borough had released the documents, the trial court held that the police record of its investigation of Reed and the loan was not Reed's personal property and that Reed, therefore, could not maintain a cause of action to challenge its release. The trial court also dismissed Reed's claim for punitive damages because it found that Reed failed to maintain a cause of action for defamation.

With respect to the motion to amend, the trial court noted that Reed sought to amend his Complaint by attaching two documents. (Reproduced Record (R.R.) #15.)*fn2 These two documents appear to be political campaign circulars. The first is a letter from Richard Booker, then a candidate for mayor. There is a notation at the bottom of the letter: "Paid for by the Colwyn Democratic Party." The letter includes claims to the effect that the loan of monies to the Fire Company to purchase the fire truck was improper, as it occurred without an authorized vote of Borough Council. Reed's name does not appear in this document. The second document appears to be a political flyer of some type, but there is nothing in the document directly attributing it to a particular source or author. Nonetheless, the tone of the piece is very partisan, criticizing the "Republican Party" of engaging in a "shell game." The document does reference Reed by name, suggesting he was behind the "shell game."

In its opinion, the trial court defended its decision to deny the motion to amend. It noted that based on its review of the proposed Amended Complaint, Reed offered nothing that would link the Individual Appellees to either document. He also noted that there was no evidence adduced during discovery that would prove any of the Individual Defendants were involved in the publication of either document. Indeed, the trial court said the evidence showed the opposite. In the absence of such evidence, the trial court noted that amendment would merely postpone his ruling favorably on the Individual Appellee's summary judgment motions.

On appeal, Reed claims that the trial court erred in granting summary judgment on his defamation claims. Reed maintains that there are genuine issues of material fact that precluded summary judgment on the defamation claims. In addition, he contends that the trial court erred when it concluded that the statements in question were not capable of a defamatory meaning. Reed also claims that the trial court erred in denying his motion to amend. He further alleges that the trial court erred in failing to recognize his property claim to the criminal investigative record. Finally, he challenges the impartiality of the trial court, based on certain language found in the trial court's opinion. If this Court remands, Reed asks that we remand with direction that the matter be reassigned to a different trial judge or to a different County.


A. Summary Judgment*fn3

1. Defamation

A plaintiff pursuing a common law claim for defamation must prove the following:

(1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the ...

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