J-A28001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JASON BANONIS, THOMAS CAROCCI, : IN THE SUPERIOR COURT OF
JENNIFER ZAVACKY AND "ZAVACKY : PENNSYLVANIA
CAROCCI BANONIS FOR LOWER :
SAUCON COUNCIL" :
:
Appellants :
:
:
v. : No. 1545 EDA 2022
:
:
THOMAS RONEY, VICTORIA ORTHOF- :
CORDARO, GEORGE GRESS, :
DEMOCRATS FOR LOWER SAUCON :
TOWNSHIP AND JOHN DOES 1 :
THROUGH 10
Appeal from the Order Entered May 16, 2022
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C-48-CV-2021-08193
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED MAY 1, 2023
Jason Banonis (“Banonis”), Thomas Carocci (“Carocci”), Jennifer
Zavacky (“Zavacky”), and “Zavacky Carocci Banonis for Lower Saucon
Council” (collectively, “Appellants”) appeal the order sustaining preliminary
objections in the form of a demurrer and dismissing their complaint asserting
defamation by Thomas Roney, George Gress, Victoria Orthof-Cordaro,
“Democrats for Lower Saucon Township,”1 and John Does 1 Through 10
(collectively, “Appellees”). We reverse and remand.
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1Appellant’s notice of appeal and brief misidentify this party as “Lower Saucon
Township,” instead of “Democrats for Lower Saucon Township,” the actual
party identified below. Accordingly, we have corrected the caption of this
appeal.
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On October 29, 2021, Appellants filed a complaint (“Complaint”). The
relevant averments of the Complaint are as follows. In October 2021,
Appellants, then-candidates in the November 2021 election for Lower Saucon
Township Council, discovered that Appellees had circulated, in writing and on
social media, a written communication (“the Communication”) addressed to
“Dear Lower Saucon Township Voter” that made the false assertion that “Our
opponents [Appellants] have pledged to refuse the $3,250/year council salary,
BUT they gladly accepted more than $75,000 in support from the landfill PAC
and other developers in this election.” See Complaint, 10/29/21, at ¶¶ 1-9,
13, 16 (emphasis in original).
Appellants also aver that they discovered the following statements on
the donation section of Democrats for Lower Saucon Township’s website:
a. Make no mistake, our opposition is well funded and organized
with the help of wealthy conservative voters and unlimited
resources from the landfill.
b. In fact, the landfill has its own super [PAC] which has funneled
$95,000.00 into Lower Saucon Council races to support
candidates who do not oppose their expansion efforts.
c. We have no doubt the landfill will pump as much money as
requested to keep the current council members in place.
d. Together we can make a difference in Lower Saucon and send
a message that big corporate landfill money can’t buy our
beautiful Township.
See id. at ¶ 18. (quotation marks omitted). The Complaint avers that:
Appellees “published, disseminated, and communicated the Communication
and Donate Page to individuals in the Township of Lower Saucon and,
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specifically, to Lower Saucon Township voters,” id. at 23; the Democrats for
Lower Saucon Township’s (“the Committee’s”) website “directs checks to be
mailed to ‘Democrats for LST’ and is signed ‘Respectfully, Georgia, Victoria,
and Tom’” [Appellees Roney, Gress, and Orthof-Cordaro’s first names], id. at
¶ 19, and “the patently false, misleading and defamatory Communication
and/or Donate Page were shared by one or more of the [Appellees] with one
or more local media outlet. . ..” Id. at 24.
The Complaint further avers that Appellees’ “false and defamatory
statement were [sic] intended to cause, and did cause, great injury . . ..” Id.
at ¶ 26. The Complaint also avers that Appellees did not take steps to
investigate the accuracy of their statements and acted in reckless disregard
of the truth or falsity of those statement:
27. [Appellees] failed and/or refused to conduct any investigation
to determine the accuracy of their statements prior to publishing
or communicate the Donate Page contents or the Communication.
28. In fact, [Appellants’] Campaign Finance Reports, filed with
the County Board of Elections as required by Pennsylvania
Campaign Finance Law and available to the public, clearly
revealed that [Appellants] did not receive any donations from the
landfill PAC or other developers. . . .
29. [Appellants’] publicly-available Campaign Finance Reports
clearly reveal that [Appellants] did not receive more than Twenty
Thousand ($20,000.00) Dollars in donations in total for the
Election.
30. Furthermore, [Appellants’] publicly-available Campaign
Finance Reports clearly reveal that [Appellants] did not receive
Seventy-five Thousand ($75,000.00) Dollars (or Ninety-five
Thousand ($95,000.00) Dollars) in support from the landfill PAC
and other developers, or from anyone for that matter.
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31. Assuming arguendo that [Appellees] purportedly conducted
an investigation, the same was not thorough, complete, or
designed to determine the accuracy or truthfulness of [Appellees’]
statements prior to publishing or communicating the contents of
the Donate Page or Communication.
32. [Appellees] could easily have accessed [Appellants’] filed and
publicly-available Campaign Finance Reports to ascertain the
falsity of their statements, but failed to do so.
****
35. [Appellees] knew or should have known that the statements
set forth in their Communication and Donate Page were false.
36. [Appellants] acted in reckless disregard of the truth or falsity
of their statements which were communicated and published on
their Donate Page and in their Communication.
37. For the reasons set forth above, [Appellees] acted recklessly,
intentionally, and/or maliciously in publishing or communicating
false and defamatory statements regarding [Appellants].
Id. at ¶¶ 27-32, 35-37.
The Complaint also avers in the alternative that Appellee’s
Communication and Donate page constituted defamation per se. See id. at
38. Finally, the Complaints avers that Appellants sent cease and desist letters
to Appellees upon learning of the communications and that Appellee Thomas
Roney later contacted Banonis’s employer and republished the defamatory
statements. See Complaint, 10/29/21, at ¶¶ at 42, 44-45.
Appellants filed an emergency petition for special relief and preliminary
injunction on the same day as their Complaint. Appellees filed preliminary
objections to the Complaint. In May 2022, the trial court heard argument and
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sustained preliminary objections in the nature of a demurrer. The trial court
found that the challenged statements constituted permissible political speech;
Appellants failed to show that Appellees’ statements were defamatory or made
with actual malice; and Appellees adequately showed that the Committee’s
statements were neither false nor made with reckless disregard of their
truthfulness. See Trial Court Opinion, 5/16/22, at 2. The trial court dismissed
Appellants’ complaint with prejudice.
Appellants timely appealed and both they and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellants present the following issues for our review:
A. Whether [the] [t]rial [c]ourt erred in failing to apply the
appropriate standard for preliminary objections in the nature
of a demurrer and dismissed Appellants’ Complaint with
prejudice and without leave to amend?
B. Whether the [t]rial [c]ourt committed errors of law and
abused its discretion by dismissing the action and finding no
legally permissible recovery based on the facts asserted in
the Complaint?
C. Whether the [t]rial [c]ourt erred in making findings of fact at
the pleading stage before any discovery occurred?
Appellants’ Brief at 5 (underlining omitted).
All three of Appellants’ issues implicate the standards of review
applicable to an order sustaining preliminary objections in the form of a
demurer in a defamation case and the trial court’s application of those
standards. We address Appellants’ three claims together.
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The standards governing our review of an order sustaining preliminary
objections in the nature of a demurrer are well-settled:
On appeal, we exercise de novo review of a lower tribunal’s order
sustaining preliminary objections in the nature of a demurer. A
demurrer tests the legal sufficiency of a complaint. For the
purpose of evaluating the legal sufficiency of the challenged
pleading, the court must accept as true all well-pleaded, material,
and relevant facts alleged in the complaint and every inference
that is fairly deducible from those facts. The question presented
by the demurrer is whether, on the facts averred, the law says
with certainty that no recovery is possible. Where a doubt exists
as to whether a demurrer should be sustained, this doubt should
be resolved in favor of overruling it.
Commonwealth by Shapiro v. UPMC, 208 A.3d 898, 908-09 (Pa. 2019)
(quotation marks and internal citations omitted). Our scope of review is
limited to the averments in the complaint together with the attached
documents and exhibits. See Hill v. Ofalt, 85 A.3d 540, 547 (Pa. Super.
2014). A court should not grant a demurrer even if it appears that a party
may not be able to prove its case at trial. See Webb Mfg. Co. v. Sinoff, 674
A.2d 723, 728 (Pa. Super. 1996).
A plaintiff pursuing a common law claim of defamation must prove the
following elements:
(1) the defamatory character of the communication;
(2) publication by the defendant;
(3) its application to the plaintiff;
(4) understanding by the recipient of its defamatory meaning;
(5) understanding by the recipient of it as intended to be applied
to the plaintiff;
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(6) special harm to the plaintiff; and
(7) abuse of a conditionally privileged occasion.
Miketic v. Baron, 675 A.2d 324, 327 (Pa. Super. 1996) (spacing added)
(footnote omitted). Harm from defamation includes impairment of reputation
and standing in the community, personal humiliation, and mental anguish and
suffering. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974);
Pilchesky v. Gatelli, 12 A.3d 430, 444 (Pa. Super. 2011).
Where the person alleging defamation is a public figure, he or she must
prove “actual malice,” i.e., that the challenged statement is made with
knowledge that it is false or reckless disregard of whether it is false or not.
See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). To plead
actual malice, a plaintiff must assert that the speaker, at a minimum,
entertained serious doubts about the truth of the publication or acted with a
high degree of awareness of its probable falsity. See American Future Sys.
Inc. v. Better Bus. Bureau, 923 A.2d 389, 395 n.6 (Pa. Super. 2007).
It is for the trial court to determine, viewing a statement in context, if
it can be construed to have the defamatory meaning the complaining party
ascribes to it. See Baker v. Lafayette College, 532 A.2d 399, 402 (Pa.
1987). A court should not sustain preliminary objections in the form of a
demurrer in a defamation case unless it is clear that the communication is
incapable of defamatory meaning. See Gordon v. Lancaster Osteopathic
Hosp. Ass’n Inc., 489 A.2d 1364, 1368 (Pa. Super. 1985). Where any doubt
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exists about the defamatory nature of a communication, the issue is for the
jury. See id. (further stating that “[e]ven where a plausible innocent
interpretation of the communication exists, if there is an alternative
defamatory interpretation, the issue must proceed to the jury.”).
A communication is defamatory if it tends to denigrate a person’s
reputation and lower him in the estimation of the community, deter third
persons from associating or dealing with him, or expose him to public hatred,
contempt, or ridicule, or injure him in his business or profession. See
Constantakis v. Bryan Advisory Services, LLC, 275 A.3d 998, 1023 (Pa.
Super. 2022). Thus, in MacElree v. Philadelphia Newspapers, Inc., 674
A.2d 1050 (Pa. 1996), the Supreme Court reversed the grant of a demurrer
in a public figure’s defamation suit predicated on statements that he was
“electioneering” and “the David Duke of Chester County running for office by
attacking Lincoln [University].”2 Id. at 1052. The MacElree Court held that
the challenged statement would permit a reasonable person to conclude that
the statement accused MacElree of “abusing his power as the district attorney,
an elected official, to further racism and his own political aspirations,” and that
such an accusation amounted to a charge of misconduct in office. See id. at
1054; see also Smith v. Wagner, 588 A.2d 1308, 1311 (Pa. Super. 1991)
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2 David Duke is an American white supremacist, antisemitic conspiracy
theorist, far-right politician, and former Grand Wizard of the Knights of the Ku
Klux Klan. See Reed, Julia, “His Brilliant Career,” The New York Review of
Books (April 9, 1992).
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(holding that a statement that a public figure is a liar, a thief, and a crook
states a cause of action for defamation and compels the reversal of the grant
of a demurrer); Reed v. Pray, 53 A.3d 134, 137, 141-42 (Pa. Cmwlth. 2012)
(reversing grant of summary judgment to: (1) council members who stated
to voters at a polling station on Election Day that a local elected official “took
$100,000” from the Borough, and (2) a council member who shouted
statements at a retail store that the official took $200,000 from the Borough).3
Appellants allege that the trial court erred, inter alia, by failing to accept
the averments in the Complaint as true, engaging in fact-finding, and
determining that Appellees’ communications were not capable of defamatory
meaning. Appellants also contend that Appellees’ communications expressly
or impliedly represented that they (1) accepted $75,000 from the landfill PAC
and other developers, (2) were “bought off” or bribed by the landfill or other
developers, (3) were beholden to the landfill and other developers, (4) would
disregard and lacked concern for Lower Saucon Township residents best
interests in favor of campaign donors, (5) did not act with integrity, and (6)
used their positions as council members to act in their own self-interest to the
detriment of the Township and its residents.
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3 This Court is not bound by the decisions of the Commonwealth Court but
such decisions provide persuasive authority, and we may turn to them for
guidance when appropriate. See Petow v. Warehime, 996 A.2d 1083, 1089
n.1 (Pa. Super. 2010).
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The trial court found that Appellants failed to allege facts that could
permit recovery for defamation. See Trial Court Opinion, 8/5/22, at 2, citing
Unglow v. Zubik, 29 A.3d 810 (Pa. Super. 2010). The court declared that
Appellants are public figures who are required to establish actual malice, and
that:
[i]t is clear that the statements in questions constitute
permissible public speech and [Appellants] failed to show that
such statements were defamatory or made with actual malice.
[Appellees] have adequately shown that statements about the
political action committee were not false or made with reckless
disregard as to their truthfulness.
Id. at 2-3. The trial court asserted that the First Amendment is due the fullest
and most urgent application in the conduct of campaigns for public office. See
id. at 3, citing Monitor Patriot Co. v. Roy, 401 U.S. 262 (1971). The trial
court specifically found that the communication that Appellants “gladly
accepted more than $75,000 in support from the landfill PAC and other
developers in this election,” could not reasonably be read as defamatory or
made with malice in the context of a political campaign and did not assert
illegal conduct. See id. at 4. The court found that a “reasonable reading” of
the communication did not lead to a finding of defamation or malice. See id.
at 5. The trial court’s assertion constitutes fact-finding that is in direct
contravention of the applicable standard of review for a trial court’s
consideration of preliminary objections which requires a court to accept the
truth of the facts asserted and every inference that is fairly deducible from
those facts, and does not authorize a court to offer its own “reasonable
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reading.” See Commonwealth by Shapiro, 208 A.3d at 908-09 (internal
citation omitted) (stating that the legal standard of review requires a court to
accept as true all well-pleaded, material, and relevant facts the Complaint
avers).
After a thorough review of the record and the applicable standard of
review, it is clear that the trial court committed reversible error by sustaining
preliminary objections in the form of a demurrer. The Complaint averred,
inter alia, the falsity of the allegation that Appellants “gladly accepted more
than $75,000 in support from the landfill PAC and other developers in this
election,” and also that publicly-available records demonstrated that
Appellees’ communication was false, easily discoverable to be false, and either
false or made with reckless disregard of their truthfulness. See Complaint,
10/29/21, at ¶¶ 13, 22, 28-32, 35-37. The trial court’s finding that Appellees
“have adequately shown that statements about the political action committee
were not false or made with reckless disregard as to their truthfulness,” see
Trial Court Opinion, 8/5/22, at 2-3, constituted both a failure to accept the
well-pleaded facts as true and an improper factual finding in Appellees’ favor.
Because the legal standard of review required the trial court to accept all facts
averred and all reasonable inferences therefrom in reviewing the Complaint,
and because the facts averred and the reasonable inferences therefrom pled
defamation, the trial court erred in granting Appellee’s preliminary objections.
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See Commonwealth by Shapiro, 208 A.3d at 908-09; Webb Mfg. Co., 674
A.2d at 728.
The trial court also erred when it found that there could be no recovery
because Appellants failed to show the defamatory quality of the statements.
See Trial Court Opinion, 8/5/22, at 2-3. Again, the applicable standard of
review required the trial court to accept as true that Appellees had
communicated to potential voters that, inter alia, Appellants had accepted
more than $75,000 from a landfill PAC and other developers and that
Appellants would act in their own self-interest to the detriment of the residents
of Lower Saucon Township because of their receipt of that money. The
standard of review also required the court to allow the case to proceed unless
it was clear that the communications were “incapable of bearing a
defamatory meaning,” despite the possibility of an innocent interpretation.
Gordon, 489 A.2d at 1368 (emphasis added).
Applying de novo review to the lower tribunal’s order, the Complaint
sufficiently averred that Appellees’ communications, published in print and on
a website, were capable of at least some of the defamatory meaning
Appellants ascribe to them. The Complaint avers that Appellants accepted a
large sum of money from a special interest group; the special interest group
would spend as much money as requested to keep current council members,
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Appellants,4 in place; and that Appellants would, without integrity, use their
positions as council members in the interest of the landfill and to the detriment
of the Township. Those allegations are capable of a defamatory reading. See
MacElree, 674 A.2d at 1054; Reed, 53 A.2d at 137, 141-42.5 The applicable
standard is not, as the trial court stated, whether the communications are
susceptible of a “reasonable reading” that they do not constitute defamation
but whether they are susceptible of a defamatory interpretation that would
require the issue to proceed to a jury. See Gordon, 489 A.2d at 1368. At
the demurrer stage, a defamatory interpretation exists namely that Appellees
took a large sum of money from a special interest group and would promote
those interests to the detriment of the Township.6 Further, the Complaint’s
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4 Two of the three Appellants were on the current council seeking reelection;
the third was running for office with them.
5 For the purposes of this memorandum, we do not decide whether the
communications constitute accusations of criminal conduct and therefore
constitute defamation per se. We note only that to the extent the trial court
suggested that the communications could not be defamatory if they did not
allege criminal conduct, see Trial Court Opinion, 8/5/22, at 4, the court was
incorrect.
6 Appellees assert that they never said that Appellants directly received
financial contributions from the landfill PAC or other developers; at most, they
asserted that Appellants received “support” from the landfill PAC. See
Appellees’ Brief at 16. In fact, the Complaint avers that Appellees stated that
Appellants gladly accepted more than $75,000 from a landfill PAC and other
developers. Appellees also assert that as public figures, Appellants “must
plead that they did not receive ANY support, direct or indirect, from the landfill
PAC or any other developers,” see id. at 17, and further argue that developers
did contribute to Appellants’ campaign. See id. Appellees cite no authority,
(Footnote Continued Next Page)
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averments that Appellants’ “Campaign Finance Reports, filed with the County
Board of Elections . . . and available to the public, clearly revealed that
[Appellants] did not receive any donations from the landfill PAC or other
developers,” Complaint, 10/29/21, at ¶ 28; Appellees “knew or should have
known that the statements set forth in their Communication and Donate page
were false, id. at ¶ 35; and Appellees “acted in reckless disregard of the truth
or falsity of their statements,” id. at ¶36, satisfied the pleading standard for
actual malice. See American Future Sys. Inc., 923 A.2d at 395 n.6. The
trial court therefore erred as a matter of law by sustaining preliminary
objections in the form of a demurrer.7
Appellants’ additional assertions allege facts that are sufficient to
establish the other elements of defamation, namely that recipients of the
communications would recognize their defamatory meaning and its application
to Appellants, the existence of special harm,8 and the abuse of a conditionally
____________________________________________
nor are we aware of any, for the proposition that their alleged statements
could not be defamatory if Appellants received any support from the landfill
PAC or other developers.
7 Monitor Patriot Co. v. Roy, 401 U.S. 262 (1971), which the trial court
cites, does not support the trial court’s ruling. Although Monitor Patriot Co.
recognized the need for fulsome political debate, it reversed a judgment in
favor of media defendants who characterized a senatorial candidate as a
“former small-time bootlegger.”
8Pennsylvania holds that proof of special harm, i.e., monetary damages, is
not a prerequisite to recovery in a defamation libel case. See Joseph v.
Scranton Times, L.P., 129 A.3d 404, 429 n. 10 (Pa. 2015).
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privileged occasion.9 The trial court did not find that the Complaint’s factual
averments concerning those elements were deficient, nor do Appellees make
that assertion.10
Under the standard that applies to the review of preliminary objections,
Appellants’ Complaint sufficiently alleged facts that, if true, are capable of
establishing actual malice. The trial court therefore erred as a matter of law
in sustaining Appellees’ preliminary objections to Appellant’s Complaint
asserting defamation.
Order reversed. Case remanded. Jurisdiction relinquished.
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9 Communications are privileged when made on a proper occasion, from a
proper motive, and in a proper manner, such as when circumstances “lead
any one of several persons having a common interest in a particular subject
matter correctly or reasonably to believe that facts exist which another sharing
such common interest is entitled to know.” See Maier, 671 A.2d at 706.
Abuse of a conditional privilege occurs when the publication is actuated by
malice, see Beckman v. Dunn, 419 A.2d 583, 588 (Pa. Super. 1980) or is
distributed to unauthorized persons. See Forbes v. King Shooters Supply,
230 A.3d 1181, 1188 (Pa. Super. 2020).
10 Even had the trial court not erred by engaging in impermissible fact-finding,
its dismissal of the Complaint with prejudice would still constitute error
because the court failed to offer Appellants the opportunity to amend their
Complaint. See Connor v. Allegheny General Hosp., 461 A.2d 600, 602
(Pa. 1983) (stating that the right to amend should be liberally granted and
holding that the lower court abused its discretion by failing to grant the right
to amendment where it would not have prejudiced the appellee).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2023
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