J-A31026-16
2017 PA Super 224
HOWARD RUBIN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CBS BROADCASTING INC. D/B/A CBS 3
Appellee No. 3397 EDA 2015
Appeal from the Order Entered October 20, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1515 November Term, 2014
BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*
OPINION BY MOULTON, J.: FILED JULY 17, 2017
Howard Rubin appeals the October 20, 2015 order entered in the
Philadelphia County Court of Common Pleas granting the motion of CBS
Broadcasting Inc. d/b/a CBS 3 (“CBS”) for judgment on the pleadings. We
reverse and remand for further proceedings.
This appeal arises from a news report related to Rubin’s September
2014 termination from his job as a school police officer at Multi-Cultural
Academy Charter School (“MACS”) in Philadelphia. The central issue on
appeal is whether the substance of that report – that Rubin was fired from
his job “over allegations of child sexual abuse” – was sufficiently close to the
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A31026-16
undisputed facts to warrant judgment on the pleadings for CBS. We
conclude that it was not.
On September 29, 2014, during the 6:00 p.m. airing of Eyewitness
News on a television station owned and operated by CBS, anchor Chris May 1
read the following report regarding Rubin’s termination: “A police supervisor
at a Philadelphia charter school is fired over allegations of child sexual
abuse. Howard Rubin is the suspect. He is accused in the sexual abuse of
an underage male student. Rubin worked at the Multi-Cultural Charter
School on North Broad Street.” Opinion Pursuant to Pa.R.A.P. 1925(a),
1/20/16, at 2 (“1925(a) Op.”).
On September 30, 2014, Eyewitness News aired the following
statement:
We would like to correct a story we reported yesterday.
We reported that a police supervisor at the Philadelphia
Multi-Cultural Academy Charter School was fired over
allegations that he sexually abused a male student at the
school.
According to the school’s principal, the supervisor’s
contract was not renewed by the school. But the principal
says the supervisor was never accused of sexual abuse of
any student, and his separation from the school did not
have anything to do with any allegations of abuse.
____________________________________________
1
May was named as a defendant in Rubin’s amended complaint but
was not named as an appellee in Rubin’s notice of appeal. Not. of App.,
10/28/15.
-2-
J-A31026-16
Sources now tell us that Philadelphia Police Special Victims
Unit has no record of any investigation or charges
involving the police supervisor.
We apologize for the error.
Id. at 2.2
On May 8, 2015, Rubin filed an amended complaint alleging
defamation and false light invasion of privacy claims against both CBS and
May. On May 18, 2015, CBS and May filed an answer with new matter. The
new matter referenced, and attached, the September 13, 2014, termination
letter to Rubin from James Higgins, MACS’ principal. The letter provided as
follows:
Dear Officer Rubin:
This letter is in reference to your employment at [MACS]
as a School Police Officer.
As we discussed this past Thursday, September 11, some
serious allegations have been made against you, which are
now being investigated by police. On Thursday, you were
immediately suspended indefinitely, without compensation,
and MACS has been conducting its own investigation of
these allegations, independent of the police probe.
While we have yet to complete our investigation, we have
determined that your behavior, at the very least, and even
by your own admission, was unbecoming of a school police
officer and a public employee.
You have been warned in writing about fraternizing with
minors, and you have acknowledged that you understood
that this type of behavior would not be tolerated again.
____________________________________________
2
According to Rubin’s amended complaint, the original report
remained on CBS’s website for at least two days after the correction aired.
Am. Compl., 5/8/15, ¶ 19.
-3-
J-A31026-16
Because of your failure to honor this expectation, we have
decided that your employment with MACS will not be
renewed for the 2014-2015 school year, and as a result, is
hereby terminated, effective immediately.
We thank you for your service to our school and wish you
the best in your future endeavors.
Ans. to Am. Compl. with New Mattter, Ex. K, 5/18/15.
On June 7, 2015, Rubin filed a reply to the new matter. Thereafter, on
August 25, 2015, CBS and May filed a motion for judgment on the pleadings,
alleging that Rubin could not meet his burden of demonstrating that the
news report was materially false, and that because the report was
substantially true it was non-actionable as a matter of law. Mot. for Judg.
on Pleadings, 8/25/15, at 2, 8. On September 17, 2015, Rubin filed a
response. On October 20, 2015, the trial court granted the motion, although
on different grounds than those asserted by CBS and May. This appeal
followed.
Rubin raises the following issue on appeal: “Upon a Motion for
Judgment on the Pleadings, did the Court of Common Pleas[] err in holding
that Rubin – a private actor – did not present a cognizable claim of
defamation or false light under any standard when the above-referenced
publication was ultimately admitted false?” Rubin’s Br. at 8.
Our scope and standard of review of the granting of a motion for
judgment on the pleadings is well-settled.
Our scope of review on an appeal from the grant of
judgment on the pleadings is plenary. Entry of judgment
-4-
J-A31026-16
on the pleadings is permitted under Pennsylvania Rule of
Civil Procedure 1034, which provides that “after the
pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for
judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion
for judgment on the pleadings is similar to a demurrer. It
may be entered when there are no disputed issues of fact
and the moving party is entitled to judgment as a matter
of law. In determining if there is a dispute as to facts, the
court must confine its consideration to the pleadings and
relevant documents. On appeal, we accept as true all well-
pleaded allegations in the complaint.
On appeal, our task is to determine whether the trial
court’s ruling was based on a clear error of law or whether
there were facts disclosed by the pleadings which should
properly be tried before a jury or by a judge sitting without
a jury.
Neither party can be deemed to have
admitted either conclusions of law or
unjustified inferences. Moreover, in conducting
its inquiry, the court should confine itself to the
pleadings themselves and any documents or
exhibits properly attached to them. It may not
consider inadmissible evidence in determining
a motion for judgment on the pleadings. Only
when the moving party's case is clear and free
from doubt such that a trial would prove
fruitless will an appellate court affirm a motion
for judgment on the pleadings.
Kelly v. N’wide Ins. Co., [606 A.2d 470, 471-72
(Pa.Super. 1992)] (quotations and citations omitted).
Altoona Reg'l Health Sys. v. Schutt, 100 A.3d 260, 265 (Pa.Super. 2014)
(some internal citations and quotation omitted).
I. Defamation
We first examine Rubin’s defamation claim. The relevant burdens in a
defamation action depend on the status of the plaintiff, the subject matter of
-5-
J-A31026-16
the communication, and the nature of the defendant. See generally Am.
Future Sys., Inc. v. Better Bus. Bur. of Eastern Pa., 923 A.2d 389 (Pa.
2007); Lewis v. Phila. Newspapers, Inc., 833 A.2d 185 (Pa.Super. 2003).
In this case, all parties and the trial court agree that Rubin is a private-figure
plaintiff, the subject matter of the report is a matter of public concern, and
CBS is a media defendant.3 Accordingly, Rubin has the burden of proving
both the falsity of the report as well as fault. Phila. Newspapers, Inc. v.
Hepps, 475 U.S. 767, 776 (1986) (holding that in a defamation case against
a media defendant for speech of public concern, there is “a constitutional
requirement that the plaintiff bear the burden of showing falsity, as well as
fault, before recovering damages”); see also Lewis, 833 A.2d at 191.
Rubin must prove that the report must was materially false:
The law does not require perfect truth, so long as any
inaccuracies do not render the substance and “gist” of the
statements untrue. See Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 516, 517, 111 S.Ct. 2419,
115 L.Ed.2d 447 (1991). The “gist” of a statement is true
if the effect upon a reader is the same regardless of the
inaccuracy. Id.
ToDay's Housing v. Times Shamrock Commc'ns, Inc., 21 A.3d 1209,
1215 (Pa.Super. 2011). Substantial truth “absolve[s] a defendant even if
she cannot justify every word of the alleged defamatory matter; it is
____________________________________________
3
See 1925(a) Op. at 6. We agree as well.
-6-
J-A31026-16
sufficient if the substance of the charge be proved true, irrespective of slight
inaccuracy in the details.” Masson, 501 U.S. at 516-17 (quotation omitted).
As to fault, because Rubin is a private-figure plaintiff, he may recover
by establishing that CBS acted negligently in publishing the report. Joseph
v. Scranton Times L.P., 129 A.3d 404, 428 (Pa. 2015) (noting that where
“plaintiffs are private[-]figure plaintiffs, this Court has held that
Pennsylvania requires private figures to prove, at a minimum, negligence in
a civil libel case”); see also Am. Future Sys., Inc., 923 A.2d at 400.4
The trial court recognized that “[i]n Pennsylvania, a private figure
plaintiff may prove the element of falsity by either a negligence or actual
malice standard.” 1925(a) Op. at 6. The court also stated:
Unfortunately for [Rubin], it is of no moment whether
or not he committed the actions alleged in his personnel
file. The defamation requirement of “falsity” should not be
taken at face value. Rather, [Rubin] must be able to show
a reasonable case for either negligence or actual malice in
Appellees’ reporting.
Id. at 8. The trial court did not address the question briefed by the parties
below – whether Rubin could establish that the report was materially false.
Rather, it found that, whether or not the report was false, Rubin could not
____________________________________________
4
With regard to damages, “although a showing of simple fault
suffice[s] to allow recovery for actual damages, even a private-figure
plaintiff [is] required to show actual malice in order to recover presumed or
punitive damages.” Hepps, 475 U.S. at 774.
-7-
J-A31026-16
establish that CBS acted negligently or with actual malice. Id. at 11.5 We
disagree.
A. Falsity
Whether Rubin can meet his burden of proving falsity turns on whether
there exists a material difference between the report’s assertion that he was
terminated “over allegations of child sexual abuse” and the actual basis for
his termination. The September 13, 2014 termination letter states that
Rubin was terminated for failing to honor expectations following warnings
about “fraternizing with minors.” While the termination letter also
references “serious allegations” levied against Rubin, the letter could be read
to find that Rubin was terminated because he failed to follow a directive
prohibiting fraternization with minor students, not because of the
“allegations.” In other words, though the letter acknowledges the existence
of allegations against Rubin, it does not state that those allegations were the
basis for Rubin’s termination as the news report stated. Conversely, other
documents attached to the pleadings support the inference that Rubin was
____________________________________________
5
The falsity and fault elements of defamation are separate inquiries,
both of which the plaintiff bears the burden of proving when the statement
in question relates to a matter of public concern. See Lewis, 833 A.2d at
191. In its motion for judgment on the pleadings, CBS made no argument
regarding Rubin’s ability to establish CBS’s negligence. Nor does it defend
the trial court’s reasoning on appeal. Instead, it again argues that because
the report was substantially true, Rubin could not meet his burden of
demonstrating that the news report was materially false. See Mot. for Judg.
on Pleadings, 8/25/15, at 2; CBS’s Br. at 14.
-8-
J-A31026-16
indeed fired based on “allegations of child sexual abuse.”6 At this stage of
the proceedings, however, without the benefit of pretrial discovery, we
cannot say with confidence that Rubin will be unable to establish the falsity
of the CBS report.
The question remains, however, whether Rubin will be able to
establish that that falsity was material. In other words, was the “gist” of the
publication – that Rubin was fired because of allegations of sexual abuse –
sufficiently different from what may prove to be the truth – that he was fired
for violating a warning about “fraternizing with minors” – to have a
____________________________________________
6
The trial court explained the events that preceded the termination
letter as follows:
Two days prior, three complaints were filed against
[Rubin]. One alleged [Rubin] “sexually touch[ed]” and
“flirt[ed]” with a male. See New Matter Exhibit G. Another
alleged that Appellant rubbed a male’s chest, telling the
male not to tell his mom. See New Matter Exhibit H. The
final document was a lengthy email from a student’s
mother to Princip[al] Higgins, alleging, among other
things, “taking advantage and lewd acts on a minor child
my son REDACTED.” See New Matter Exhibit J.
[Rubin’s personnel file] also contains a screenshot of
Facebook messages from “PhillyHip HopCop”, [Rubin’s]
Facebook account, to a minor user which shows repeated
requests from PhillyHip HopCop for the minor to call him.
The requests were made on September 6 and 8, 2014
between the times of 11:00 am and 2:00 pm. See New
Matter Exhibit I.
1925(a) Op. at 2 (some alterations in original).
-9-
J-A31026-16
materially different “effect upon a viewer”? ToDay's Housing, 21 A.3d at
1215.7 While that difference may not be vast, we conclude that it is
material. In the minds of viewers of the CBS broadcast, a termination based
on an allegation of “the sexual abuse of an underage male student” surely
could carry a greater sting than a termination for violating a personnel
directive, even a directive about “fraternizing with minors.” Notably, for at
least some viewers, the former could suggest that the school had
investigated and credited the allegations of abuse, something the
termination letter itself expressly disavows.
B. Fault
Based on the foregoing analysis, we also disagree with the trial court’s
determination that “the facts could not reasonably support a finding of
negligence or malice because [Rubin’s] personnel file corroborated
Appellees’ communication.” 1925(a) Op. at 11. The pleadings and attached
documents do not make clear either the nature or the source of the
information CBS possessed prior to publication. Accordingly, as with the
falsity issue, there is not enough information at this stage in the proceedings
to say with confidence that Rubin will be unable to establish that CBS acted
negligently or maliciously in publishing the report. If the as-yet-
____________________________________________
7
Of course, further discovery, including depositions of relevant school
officials, may very well establish that, despite Principal Higgins’ post-
publication denial of the report’s accuracy, the basis for Rubin’s termination
was indeed the allegations of abuse.
- 10 -
J-A31026-16
undetermined facts support Rubin’s claim that he was not terminated “over
allegations of child sexual abuse,” then he may be able to establish CBS’s
negligence or malice in publishing the report. Of course, even if he is able to
prove falsity, discovery may establish that he is unable to prove that CBS
acted with the requisite fault.8
II. False Light
We next turn to Rubin’s claim for false light invasion of privacy, which
the trial court concluded must also fail. In Pennsylvania, a claim for false
light invasion of privacy requires that: “(a) the false light in which the other
____________________________________________
8
The trial court focused on the documents in Rubin’s personnel file,
which it held preclude a finding that CBS acted with fault. But CBS
acknowledges that it did not obtain Rubin’s personnel file until after Rubin
filed suit. CBS’s Br. at 11. Therefore, the documents themselves cannot
stand as an absolute bar to a finding that CBS acted negligently (or with
actual malice) in publishing the report. The trial court’s opinion, responding
to Rubin’s reliance on Principal Higgins’ post-publication denial, focused on
the Pennsylvania Supreme Court’s decision in Curran v. Philadelphia
Newspapers, Inc., 439 A.2d 652 (Pa. 1981). In Curran, the Court found
that “neither the pre-publication denials nor the refusal to comment served
to cast sufficient doubt upon the veracity of the . . . publication to make the
issue of actual malice a question for a jury.” Id. at 660. The Court stated
that the pre-publication statements, when weighed against information
provided by the newspaper’s source, “could reasonably have been dismissed
as subjective statements not impeaching the integrity of the information.”
Id. Here, the trial court, after emphasizing that Principal Higgins contacted
CBS only after the broadcast, opined that even if Principal Higgins had
contacted CBS before publication, his denial could have been dismissed by
CBS as a subjective statement not impeaching the integrity of Rubin’s
personnel file. 1925(a) Op. at 10. While the trial court may be correct that
a post-publication denial sheds little light on the publisher’s fault at the time
of publication, that observation does not alter our analysis.
- 11 -
J-A31026-16
was placed would be highly offensive to a reasonable person, and (b) the
actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter[9] and the false light in which the other would be placed.”
Krajewski v. Gusoff, 53 A.3d 793, 805–06 (Pa.Super. 2012) (quoting
Restatement (Second) of Torts § 652E). “[U]nlike the law of defamation, . .
. false light invasion of privacy offers redress not merely for the publication
of matters that are provably false, but also for those that, although true, are
selectively publicized in a manner creating a false impression.” Id. at 806.
The trial court concluded that the “admitted facts cannot support a
finding of knowledge of or reckless disregard as to the falsity of the
publicized matter” because CBS’s report accurately “summarized [Rubin’s]
termination letter, which was found in [Rubin’s] personnel file that contained
multiple corroborating documents.” 1925(a) Op. at 13. We disagree. As we
stated in our analysis of Rubin’s defamation claim, there is not enough
information at this stage in the proceedings to say with confidence that
Rubin will be unable to establish that CBS acted with actual malice.
Accordingly, we reverse the trial court’s order granting CBS’s motion
for judgment on the pleadings and remand for further proceedings
consistent with this opinion.
____________________________________________
9
The required standard of fault in a false light claim is thus actual
malice. See Time, Inc. v. Hill, 385 U.S. 374, 387 (1967) (defining actual
malice as “knowledge that the statements are false or in reckless disregard
of the truth”).
- 12 -
J-A31026-16
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
- 13 -