Pellegrino Food Products Co. v. Valley Voice

DISSENTING OPINION BY

JOYCE, J.:

111 I disagree with the Majority’s conclusion that the trial court abused its discretion in awarding attorney’s fees to Ap-pellees. Accordingly, I respectfully dissent.

*1166¶ 2 Our standard of review of awards of attorney’s fees is well-settled. “Whether to award attorneys’ fees and costs incurred in bringing an action are within the discretion of the trial court, and we will not reverse a trial court’s decision on the matter in the absence of a palpable abuse of discretion.” Thunberg v. Strause, 545 Pa. 607, 682 A.2d 295, 302 (1996) (citation omitted).

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or [the judgment is] the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record, discretion is abused. We emphasize that an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion, but requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.

Carter v. May Dept. Store Co., 853 A.2d 1037, 1040 (Pa.Super.2004) (emphasis added).

¶ 3 It is my opinion that the trial court did not abuse its discretion in determining that attorney’s fees should be awarded because Appellants’ conduct in filing the suit was vexatious. It is undisputed that Appellants were on notice that Appellees were asserting the fair report privilege prior to filing the first and second law suits.

In Pennsylvania, the fair report privilege protects the press from liability for the publication of defamatory material if the published material reports on an official action or proceeding. See Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586, 588 (1963); Mosley v. Observer Pub. Co., 427 Pa.Super. 471, 629 A.2d 965, 967 (1993). No responsibility attaches so long as the account of the official action or proceeding is fair, accurate and complete, and is not published “solely for the purpose of causing harm to the person defamed.” Sciandra, 187 A.2d at 589. See also RESTATEMENT (FIRST) OF TORTS § 611. “However, this qualified immunity is forfeited if the publisher steps out of the scope of the privilege or abuses the ‘occasion.’ This can be done by exaggerated additions, or embellishments to the account.” Id. at 600, 187 A.2d 586. See also Mosley, 629 A.2d at 969.

DeMary v. Latrobe Printing and Publishing Co., 762 A.2d 758, 763 (Pa.Super.2000).

¶ 4 In this case, the fair report privilege was applicable. Mrs. Curtin’s articles reported on official proceedings, the meetings of the Mead Township Supervisors. The information contained in the articles was an account of what happened at those meetings and, which viewed in whole, there is no evidence that the articles were unfair, inaccurate or incomplete. In fact, the evidence shows that Mrs. Curtin received the information directly from the Supervisors and from the Township’s Solicitor and that those people had personal knowledge of the truth of the matter. Moreover, there is no evidence that the article was published “solely for the purpose of causing harm to the person defamed.” DeMary, supra.

¶ 5 The Majority finds that the privilege was forfeited because Mrs. Curtin reported “inaccuracies and clear embellishments of the events which occurred at the meeting. ...” Majority opinion, at 8. The inaccuracy pertains to the fact that Mead Township’s dispute was not with Pellegrino Foods, but rather with the owners of the Pellegrino building. The Pellegrino building is owned by Thomas and Sally Pelle-grino. Thomas Pellegrino is the President *1167of Pellegrino Foods, however. Although the entities are closely entwined, technically the reference was inaccurate. Such an inaccuracy does not result in the forfeit of the fair report privilege, though, since it is neither an exaggerated addition nor an embellishment and errors do not negate the privilege. DeMary, supra; Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53, 56 (1971).

¶ 6 The Majority also concludes that the fair report privilege was not applicable because the article stated that “Pellegrino has been notified of the infractions and has responded with the statement ‘Prove it!” ’3 As it turns out, this was not a direct quote from any Pellegrino official, but was the attitude of that person. I agree that the words “prove it” in quotation marks may lead some into thinking that it is a direct quote. While this is an unfortunate misstep, I do not agree that this singular gaffe is the sort of “embellishment” that removes the fair report privilege. The evidence of record established that Mrs. Cur-tin was told that the supervisors told her that when a Pellegrino official was found to be in violation of the zoning infractions that the attitude was “prove it to us.” Mrs. Curtin’s version was not so far from the truth so to remove the fair report privilege. Binder, supra (“a qualified privilege is one that can be lost by abuse, such as overly embellishing an account of a proceeding”) (emphasis added).

¶ 7 In my view, Appellees were protected by the fair report privilege. Appellants were advised of this factor prior to filing the first complaint but proceeded anyway, establishing that their conduct was vexatious. Moreover, there were a variety of other factors that support the trial court’s finding of fact that Appellants’ conduct in filing the complaint was vexatious. For example, Tom Curtin, Mrs. Curtin’s husband, was named as a defendant in the first complaint despite the fact that he had no ownership in the Valley Voice nor did he write or otherwise participate in the writing of the articles.4 Additionally, the fact that Appellees discontinued the first action five days before argument on summary judgment was scheduled and then filed the second action the day after argument was to be had was *1168indicative of vexatious conduct. Also, Ap-pellees filed a motion to compel interrogatories and argument was scheduled but again Appellants discontinued the case several days before argument. These discontinuances, which immediately preceded scheduled arguments, raise the inference that the suits had no merit. Regarding the last discontinuance, Appellants claim in their appellate brief that they “unilaterally decided to withdraw the case as they did not wish to expose Susan Curtin’s personal assets.” Appellants’ brief, at 6. However, this claim is somewhat disingenuous since Appellants were on notice that the Valley Voice was not insured when Mrs. Curtin was deposed on February 13, 2002. The deposition occurred during the pendency of the first action. Notwithstanding this knowledge, Appellants proceeded with the first action, discontinued it, and then filed a second action. All of these factors led the trial court to properly conclude that Appellants’ conduct in filing the law suits was vexatious so to support an award of attorney’s fees.

¶ 8 Lastly, the trial court also based its decision to award counsel fees upon a finding that Appellees met their burden of proof relative thereto and also the underlying merits while Appellants did not. As to the defamation, Mrs. Curtin met her burden when she established that she reported on an official proceeding. The burden then shifted to Appellants to prove that Mrs. Curtin knew the statements were false or acted with recMess disregard for their truth and acted with malice or ill-will toward the Appellants. DeMary, supra, 762 A.2d at 764.

¶ 9 In regards to the attorney’s fees, the trial court found that Appellants did not meet their burden of proof there either. The court applied the test proscribed in In re Estate of Roos, 305 Pa.Super. 86, 451 A.2d 255 (1982).

[W]hen a litigant ‘has the burden of proof it means that he has made a claim which he cannot expect to have accepted until he offers proof sufficient to support it; and the least degree of proof any claimant can offer in order to obtain persuasion is proof which fairly outweighs the probative value of any proof offered against the claim. If the evidence does not fairly preponderate in favor of his claim he has failed to carry his burden of proof. Since proof by a ‘preponderance of the evidence’ is the lowest degree of proof recognized in the administration of justice, the evidence the burdened party offers does not become proof until it preponderates in evidentiary weight against the opposing evidence.

In this connection, we also have said that the burden of proof may shift during the course of the trial in the following manner:

If he [the plaintiff] makes a prima facie case, and nothing is done by the other side to answer it ‘the plaintiff wins.’ ... there are points at which the onus of proof shifts, ... it is not a burden which rests forever on the person on whim [sic] it is first cast, but as soon as he, in his turn, finds evidence which, prima facie, rebuts the evidence against which he is contending, the burden shifts until again there is evidence which satisfies the demand. Now, that being so, the question as to onus of proof is only a rule for deciding on whom the obligation rests of going further, if he wishes to win. Arco Metalscraft Co. v. Shaw, 364 Pa. 39, 44, 70 A.2d 850, 853 (1950) (Emphasis added).

Id. at 256-257 (footnotes and quotation marks omitted).

¶ 10 The trial court determined that Ap-pellees met their burden of proof in estab*1169lishing a prima facie case for an award of attorney’s fees. The court further found that Appellants only alleged (via the answer to the petition for attorney’s fees) that their conduct was not vexatious without producing evidence in support thereof. Relying on Roos, wherein the defendants did not meet their burden of proof in defending the claim for attorney’s fees by resting on the pleadings, the trial court found that Appellants did not meet their burden of proof. On the record, I do not find that the trial court abused its discretion in arriving at this conclusion.

¶ 11 For all of the foregoing reasons, I dissent.

. There is a question as to the propriety of this Court making a finding of fact that the fair report privilege was abused. See First Lehigh Bank v. Cowen, 700 A.2d 498, 503 (Pa.Super.1997) (stating that "[w]hether the [fair report] privilege is abused is a question for the jury”) Obviously, in this case, the trial court was required to assume this fact finding mission in order to decide the petition for attorney’s fees. Since the fact finder determined that the Appellees did not forfeit the privilege, we are not in a position to reverse that conclusion unless it is clearly unsupported by the record. The very fact that members of this panel disagree on this factual determination supports the contention that we should defer to the trial court’s finding.

. The irony of this fact cannot be overlooked. Appellants claim that they felt entitled to file a law suit because conduct attributed to Pelle-grino Foods should have been ascribed to the owners of the Pellegrino building and this fact could have been easily ascertained by a simple check of ownership. Similarly, in their lawsuit, Appellants named Tom Curtin as a defendant, attributing conduct to him that would never withstand legal muster since he was only an occasional reporter for the Valley Voice and not the writer of the article or the owner, a fact that would have been ascertained by a simple check of ownership. It is fortunate for Appellants that Mr. Curtin did not file for attorney's fees along with his wife and Valley Voice. See Thunberg v. Strause, 545 Pa. 607, 682 A.2d 295, 302 (1996) ("the filing of a complaint merely to protect a client’s possible claim against a party without any regard for the truth of the matters asserted therein may give rise to an award of attorney's fees where such allegations are later proven to have been made without a reasonable investigation or inquiry by the filing party-”)