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Meyers v. Certified Guaranty Co., LLC

Superior Court of Pennsylvania

October 18, 2019

MATTHEW MEYERS AND EMILY MEYERS, INVESTMENT GRADE BOOKS, LLC Appellant
v.
CERTIFIED GUARANTY COMPANY, LLC, CLASSIC COLLECTIBLE SERVICES, LLC, MATTHEW A. NELSON, AND HERITAGE AUCTIONEERS & GALLERIES, INC.

          Appeal from the Order Dated January 22, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): Dec. Term, 2016 No. 01182.

          BEFORE: MURRAY, J., STRASSBURGER, J. [*] , and PELLEGRINI, J. [*]

          OPINION

          PELLEGRINI, J.

         The Appellants, Matthew Meyers and Emily Meyers (the Meyers) appeal the order of summary judgment entered in the Philadelphia County Court of Common Pleas as to their claims of defamation and false light against the Appellees, Certified Guaranty Company, LLC (CGC), Classic Collectible Services, LLC (CCS), Matthew A. Nelson (Nelson) and Heritage Auctioneer & Galleries, Inc. (Heritage).[1] The Meyers contend that because there existed questions of material fact that should have gone to the jury, the trial court erred in ruling that those claims were not actionable. Based on the facts outlined in the parties' respective motions and responses, the order of summary judgment must be reversed as to the defamation and false light claims but affirmed in all other respects.

         I.

         The Meyers began restoring comic books professionally in 2013. As they gained experience, they learned the tools of the trade, such as color touch, piece replacement, tear seals, cleaning or replacing staples, re-glossing and cover cleaning. By skillfully applying those methods, a restorative artist can breathe new life into an aged and worn comic book, substantially increasing its market value. Comic books sold at auction are typically graded on a "1 to 10" scale for overall condition, an "A to C" scale for the quality of restoration, and a "1 to 5" scale for the quantity of restoration work.

         CGC is an entity which grades and certifies comic books for valuation purposes. CCS is an entity that restores comic books and it is owned by CGC. At the relevant times, Nelson had dual roles as both a grader for CGC and the president of CCS. In his capacity as a grader, he evaluated much of the Meyers' work. He also corresponded with the Meyers beginning in 2014, advising them on how to avoid the use of irreversible restoration techniques that would decrease a comic book's auction value, such as "trimming" the outer dimensions of pages and applying too much "color touch" to artwork.

         It is undisputed that Nelson appreciated the Meyers' talent and sought to hone their ability. In fact, in 2014 alone, the Meyers had received the highest possible rating from CGC on seven comics they had submitted for evaluation. The next year, in January 2015, the Meyers met with Nelson at his office in Florida. Nelson reviewed a number of their restored comic books and gave them additional advice about which processes to use or avoid.

         At the meeting, Nelson complimented a restored "Batman #1" as the best he had ever seen. Nelson also offered to "press" the Meyers' restored copy of "Amazing Fantasy #15" in order to remove a warp in the spine and thereby achieve an almost perfect grade from CGC. The Meyers followed Nelson's advice and were grateful to be mentored by a respected authority on comic book restoration.

         The Meyers continued receiving generally high gradings from CGC well into 2015, having followed many of Nelson's suggestions. Nelson confirmed as much in April 2015, emailing them that a recent submission had earned a very high grading. CGC awarded the Meyers the highest known grading in May 2015 for restored editions of two other comic books.

         In 2015, the Meyers received two low gradings by CGC as to another "Batman #1" and an "Action Comics #7." The Meyers acknowledged that unusual circumstances during the restoration had caused a "stiffer" and "thicker" cover than usual on the Action Comics #7. Tape applied by a previous owner of the Batman #1 could not safely be removed, increasing its weight. Because of the disagreements between Meyers and Nelson on CGC's grading policies, the Meyers began having their work graded by a competitor of CGC called Comic Book Certification Service (CBCS).

         The falling out between Nelson and the Meyers then took a public turn. On the Collector's Society forum, an online message board, a debate emerged among posters as to why CGC had decided to stop accepting the Meyers' work. CGC owns and operates the forum and Nelson moderated it as an administrator.

         In a December 2015 message board thread, numerous posters questioned whether the Meyers were doing "re-creation" rather than "restoration" of original work. See Defendants' Motion for Summary Judgment, Exhibit "K.". Posters also remarked that CGC had decided to stop accepting work from the Meyers because they were destroying comic books rather than restoring them. See id. ("From what I'm hearing it seems CGC won't grade these books because they are more 're-creations' than 'restorations'").

         It bears emphasizing here that within the industry, a comic book's value becomes greatly diminished once any component is substituted or removed, such as "trimming" off the damaged edges of a page or "reprinting" covers with a Xeroxed copy. Such practices both mar the quality of the original comic book and mislead collectors about how much of the original work remains. "Re-creation" is often synonymous with "fake" or "counterfeit."

         The Meyers addressed those concerns in posts to the thread dated December 30, 2015, explaining some of their restoration methods on certain projects and the reasons they stopped submitting their work to CGC. Id.[2]They denied that any of their work was "fake" or photocopied and claimed that they had stopped submitting work to CGC because they did not want their "proprietary techniques in the hands of CCS - the industry leader and [their] direct competition." Id.

         That same day, Nelson responded on the message board with a post that is now at issue:

Up to the point we stopped receiving submissions there were issues with the work, reflected in our assigning either a B or C classification. A decision was going to be made whether to stop taking books that exhibited questionable work, but submissions ceased . . . The point of professional restoration is to return a book back to as close to its original state as possible using reversible materials. When work becomes so extensive that it becomes hard to tell what is real and what is re-created, it is impossible to accurately and fairly represent a grade to the market.

Id. (Emphasis added).

         That post, in turn, generated dozens of lengthy responses on the thread by third parties, many of which cast the Meyers in a negative light:

At this point there is still a bit of a credibility gap between what [the Meyers have] said and what Matt Nelson just said.
[The Meyers] said that they didn't go to CGC because Matt is under their umbrella and they didn't want CCS appropriating their restorative techniques.
But [Nelson] just confirmed that CGC essentially determined the books were ungradable and showing restoration techniques that were questionable.
Evidently [CBCS] has no such qualms and will grade anything for the business and that's why these books are in [CBCS casings].

Id.

         The doubts sown in such posts prompted Nelson to respond again, to clarify "misconceptions" on the thread that could "potentially [affect] the health of the restored market in the future[.]" Id. On January 3, 2016, he then made the following statements, which like the earlier post, are also alleged to be defamatory:

There are two particular aspects I hope to have been resolved. They were present on the books we graded (hence the B and C notations we gave) which were subsequently cross graded by CBCS, who gave them professional designations and usually a higher grade. One was the large amount of color touch being applied to the covers, and the other was the material used as a glossing agent over that color touch.
I believe [the Meyers] used a product called Golden Gel, which is irreversible[.] To achieve all of these 9.6's and 9.8's (according to CBCS), either these flaws must be masked with a glossing agent, or only very high grade copies are chosen for restoration. Based on the information I've seen, I don't believe that you are restoring books that were previously unrestored high grade copies. And I don't think there are enough 'perfect' candidates out there to produce the large number of ultra high grade books that have entered the market in only the past few months.

Id. (Emphasis added). Nelson concluded by complimenting the Meyers' talent and remarking that after the "considerable strides" they had made, "a couple of the books turned out really great by [CGC's standards]." Id.

         In addition to his public posts on CGC's message board, Nelson made a number of verbal statements about the Meyers to third ...


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