J-A05034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FJW INVESTMENT, INC., D/B/A BATH : IN THE SUPERIOR COURT OF
FITTER OF PITTSBURGH : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1041 WDA 2018
LUXURY BATH OF PITTSBURGH, :
INC., BARRY ERENRICH, KENNETH :
KAYSER, RICHARD GALLAGHER, :
BRYAN MYERS, MARK PINTEA, RB :
PRO, INC., D/B/A RE-BATH, JO ANN :
YOCHUM, AND CHRISTINE DUMM :
Appeal from the Order Entered June 28, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 12-009789
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
CONCURRING STATEMENT BY SHOGAN, J.: FILED APRIL 23, 2019
I join my esteemed colleagues in the Majority but write separately to
note the inherent tension in Pennsylvania jurisprudence between the need to
prove actual damages in defamation cases and the heightened protection
given to reputation pursuant to our state Constitution. See Pa. Const. art I,
§ 1 (“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.”) (emphasis added); see also
American Future Systems, Inc. v. Better Business Bureau of Eastern
J-A05034-19
Pennsylvania, 923 A.2d 389, 395 (Pa. 2007) (“reputational interests occupy
an elevated position within our state Constitution’s system of safeguards”)
(footnote omitted).
Consistent with this position, our Supreme Court has explained that
awards of presumed and punitive damages are not prohibited in all defamation
cases.
As to presumed and punitive damages, although the [Gertz v.
Robert Welch, Inc., 418 U.S. 323 (1974)] Court made it clear
that the First Amendment prohibits awards of presumed and
punitive damages for defamatory statements where private
plaintiffs show less than actual malice, the Court left open the
question of whether presumed or punitive damages are
constitutional when the plaintiff proves actual malice in such
cases.
Joseph v. Scranton Times, L.P., 129 A.3d 404, 430 (Pa. 2015). The
Joseph Court concluded that:
we . . . find no specific directive from the U.S. Supreme Court to
cause us to abandon the long standing practice in this jurisdiction
of allowing punitive, as well as presumed, damages in appropriate
cases. Thus, . . . , we reject [the argument] to the contrary and
permit private plaintiffs in libel cases involving media defendants
to recover presumed and punitive damages upon their satisfaction
of the [New York Times Co. v. Sullivan, 376 U.S. 254 (1964)]
actual malice test.[ ]
Id. at 432.
Of further elucidation is our Supreme Court’s comments regarding this
Court’s decision in Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 237
(Pa. Super. 1993), which the Majority relies upon in its statement of the law:
To the extent the [defendants] and their Amici argue the Superior
Court’s decision in Walker, supra establishes the controlling
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precedent as to the availability of presumed damages upon a
plaintiff’s showing of actual malice, we disagree. This Court is not
bound by the Superior Court’s decisions. Stone Crushed
Partnership v. Kassab Archbold Jackson & O'Brien, 589 Pa.
296, 306, 908 A.2d 875, 881 (2006). Moreover, while Walker
suggested that a plaintiff in a defamation per se action must prove
actual harm in order to recover compensatory damages, Walker
left open the question of whether a plaintiff may recover for
presumed damages upon a showing of actual malice. See
Franklin Prescriptions, Inc. [v. New York Times Co.], 424
F.3d [336,] 342 [(3d Cir. 2005)](discussing Walker).
Joseph, 129 A.3d at 432 n.13. Accordingly, there may be defamation per se
actions where a plaintiff may recover presumed damages, and proof of actual
harm is not required. However, my review of the record reveals this is not
such a case.
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