Wealand, et ux vs. Parker No. 2013-00801

Civil Action – Defamation – Slander – Elements – Publication – Third Parties -Time and Place – Insufficient Specificity – Preliminary Objections.

1. Pa.R.C.P. No. 1019(a) requires that the material facts on which a cause of action is based be stated in a concise and summary form.  A Complaint must not only apprise a defendant of the claim being asserted, but must also summarize the essential facts to support the claim.

2. Rule 1019(f) provides that averments of time and place shall be specifically stated.  However, under certain circumstances, allegations of periods of time, rather than dates certain, are sufficient if the defendants have greater knowledge than plaintiff of the actual dates when the acts were committed.

3. The fact that the defendant has as equal knowledge as the plaintiff does not excuse the plaintiff from the necessity of pleading a cause of action.  Regardless of the knowledge of the adverse party, the pleader must aver the material facts so that the basis for his claim or defense appears of record, and so that both the trial court and the appellate court can determine the issues to be tried.

4. A party may file Preliminary Objections to a pleading on the basis of insufficient specificity.

5. A prima facie case for defamation requires the claimant to plead the following:  (1) the defamatory character of the communication; (2) publication of the communication to a third party; (3) the communication refers to the plaintiff, (4) the third party’s understanding of the communication’s defamatory character, and (5) injury.

6. A pleading setting forth a cause of action for defamation must specifically identify on its face what the allegedly defamatory statements consist of and the identity of those to whom they were made.

7. A counterclaim is not pled with requisite specificity if the allegations are general in nature and fail to set forth the identity of the person or persons to whom the defamatory comments or statements were made and the time or place the alleged defamatory statements were made.

8. Although the Court did not require Defendant to provide the precise dates on which the statements were made, it did hold that Defendant must pinpoint the timeframe with much more accuracy.

9. The Court also found the Defendant’s references to the recipients and location of the defamatory comments impermissibly vague since Plaintiffs are entitled to have this information pled in order to prepare their response and defend against such allegations.

10. Because the Plaintiffs are entitled to be apprised of the precise conduct which is the basis for the cause of action asserted against them by Defendant, the Court sustained Plaintiffs’ Preliminary Objections and directed Defendant to amend her Counterclaim to plead these items with the requisite specificity.

Plaintiffs’ Preliminary Objections to Defendant’s Counterclaim.  C.P. of Lebanon County, Civil Action-Law, No. 2006-01715.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION NO. 2013-00801

DANIEL J. WEALAND, JR. and MELISSA M. WEALAND, husband and wife v.

SUSAN M. PARKER

ORDER OF COURT

AND NOW, this 31st day of January, 2013, upon consideration of Plaintiff’s Preliminary Objections to Defendants’ Counterclaim, and the Briefs submitted by the parties, it is hereby Ordered that said Preliminary Objections are SUSTAINED.  Defendant is granted leave to amend her Counterclaim in accordance with the accompanying Opinion within twenty days of this Order.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

ROBERT B. KEYS, ESQUIRE FOR DANIEL J. WEALAND, JR. and MELISSA M. WEALAND

LYNN ERICKSON, ESQUIRE FOR SUSAN M. PARKER

OPINION, TYLWALK, P.J., JANUARY 31, 2014

Plaintiffs instituted this action on April 30, 2013 seeking recovery for damages incurred as a result of Defendant’s unlawful entry into their home.    The Complaint alleges that Plaintiff Melissa M. Wealand (“Wife”) was sleeping in the couple’s living room at 1:30 a.m. on August 2, 2011 and that Defendant kicked in the front door and entered the house.  Once inside, Defendant struck Wife in and about the head and face with brass knuckles, pushed her into a wall and choked her with a copper pipe.  Wife sustained severe injuries and various items in the home were damaged during this incident.  Plaintiff Daniel J. Wealand, Jr. (“Husband”) also asserts a claim for loss of consortium.  On August 13, 2013, Defendant filed an Answer and a Counterclaim asserting causes of action in Defamation and Assault against Wife.  Plaintiffs have filed Preliminary Objections to Defendant’s Counterclaim, seeking dismissal of the count in Defamation for lack of specificity.  The matter was listed for Argument and is now ripe for disposition.

Defendant alleges that at the time of this incident, she was a nationally-recognized ATV champion with a very high public profile and that she utilized her notoriety to promote various charitable organizations and to encourage participation in ATV racing to children, disabled persons and others.  She alleges that prior to August 2, 2011, she and Wife were friends, participated in social activities together, and visited each other’s homes on a regular basis.  Her Counterclaim further alleges that:

22.  At some time in January 2011, Plaintiff Melissa Wealand, a married woman, told people who were closely associated with the Defendant and her public racing career that she was having a sexual affair with the Defendant, and that she wished to leave her children and husband for the Defendant.

23.  The allegation was untrue, but the said Plaintiff repeated the statement to others thereafter, including Defendant’s family, which statements were also communicated to the Defendant.

24.  Thereafter, including allegations in this action, Plaintiff accused the Defendant of using brass knuckles to assault her.

25.  All of said comments were made by Plaintiff intending to harm the reputation of the Defendant as to lower her in the estimation of the community and/or to deter third persons from associating with her.

(Defendant’s Answer and Counterclaim, Paras. 22 – 25)  Plaintiffs’ Preliminary Objections assert that the Counterclaim is insufficiently specific as Defendant failed to identify the individuals to whom the statements were made as well as the time and place where Wife allegedly made the statements.

Pa.R.C.P. No. 1019(a) requires that the material facts on which a cause of action is based to be stated in a concise and summary form.  Pa.R.C.P. No. 1019(a). A Complaint must not only apprise a defendant of the claim being asserted, but must also summarize the essential facts to support the claim.  Krajsa v. Keypunch, Inc., 622 A.2d 355 (Pa. Super. 1993).   Rule 1019(f) provides that averments of time and place shall be specifically stated.  Pa.R.C.P. No. 1019(f).   However, under certain circumstances, allegations of periods of time, rather than dates certain, are sufficient if the defendants have greater knowledge than plaintiff of the actual dates when the acts were committed.  Mikula v. Harrisburg Polyclinic Hospital, 58 Pa.D.&C.2d 125 (C.C.P. Dauphin Cnty. 1972); Pa.R.C.P. No. 1019(f).

It is not sufficient that the defendant might know the basis for the plaintiff’s claims against her as the rules require that the facts be set forth in the plaintiff’s complaint.  Gross v. United Engineers, supra.  “The fact that the defendant has as equal knowledge as the plaintiff … does not excuse the plaintiff from the necessity of pleading a cause of action.  Regardless of the knowledge of the adverse party, the pleader must aver the material facts so that the basis for his claim or defense appears of record, and so that both the trial court and the appellate court can determine the issues to be tried.”  Id. at 237.  A party may file Preliminary Objections to a pleading on the basis of insufficient specificity.  Pa.R.C.P. No. 1028(a)(3).

A prima facie case for defamation requires the claimant to plead the following:  (1) the defamatory character of the communication, (2) publication of the communication to a third party, (3) the communication refers to the plaintiff, (4) the third party’s understanding of the communication’s defamatory character, and (5) injury.  Bell v. Mayview State Hospital, 853 A.2d 1058 (Pa. Super. 2004).

A pleading setting forth a cause of action for defamation must specifically identify on its face what the allegedly defamatory statements consist of and the identity of those to whom they were made.  Evans v. Philadelphia Newspapers, Inc., 1991 WL 1011010, 22 Phila Co.  Rptr. 25  (C.C.P. Phila. Cnty. 1991), citing Moses v. McWilliams, 549 A.2d 950 (Pa. Super. 1988); Gross v. United Engineers and Constructors, Inc., 302 A.2d 370 (Pa. Super. 1973).  A counterclaim is not pled with requisite specificity if the allegations are general in nature and fail to set forth the identity of the person or persons to whom the defamatory comments or statements were made and the time or place the alleged defamatory statements were made. Industrial Valley Bank and Trust Co. v. Howard, 533 A.2d 1055 (Pa. Super. 1987);  Pultz v. Whitehead, 49 Pa.D.&C.3d 444 (C.C.P. Northampton Cnty. 1988).

In explaining the importance of the requirements for specificity in pleading a cause of action in defamation, the Court in Evans v. Philadelphia Newspapers, Inc., supra, discussed the appellate court’s holding in Gross as follows:

In explaining this requirement, the Superior Court in Gross stated that the Pennsylvania Rules of Civil Procedure mandate that plaintiffs plead the material facts of their cause of action and that because the material facts of a cause of action in defamation, whether written or oral, include the content of the statement, the identity of the person making the statement, and the identity of the person receiving the statement, these facts must be specifically pled. Gross v. United Engineers, 224 Pa.Super. at 235. The Court reasoned that such information was necessary so that the basis for the claim would appear of record, so that the defendants would be given notice of what they had to defend, and so that the trial and appellate courts could properly determine the issues to be resolved. Gross v. United Engineers, 224 Pa.Super. at 237. This rationale is particularly germane to suits based on slander where recipients may quickly forget the exact content of what they heard, and, since slight alterations of content may make the difference between truth and falsity, the content of what was said is extremely important. By requiring the plaintiff to specifically plead the content and identity of recipients, the statement is preserved of record and the defendant has the opportunity to respond appropriately and promptly investigate the allegations. …

Plaintiffs’ averments as to the time the slanderous statements were made is insufficient on its face. The phrase ‘for a period of time following‘ could be applied to one day, one year or conceivably longer. In a defamation case, averments as to time are of significant importance in that the statute of limitations for such cases is one year after the statement is made. … 42 Pa. C.S.A. §5523(1). If plaintiffs could make general averments as to time, statutes of limitations would be meaningless. Even if plaintiffs were able to supply the dates at some future point, they are not relieved from pleading all the material facts. Gross v. United Engineers, 224 Pa.Super. at 235. Indeed, plaintiffs have never made known to defendants or to the court specifically when these statements were made.

Evans v. Philadelphia Newspapers, Inc., supra at 32.

As to time, Defendant avers that Wife made alleged defamatory statements in January 2011 and “thereafter.”  This is clearly insufficient.  Plaintiffs cannot respond to such a vague allegation and cannot evaluate any potential defense on the basis of the statute of limitations.  We realize that it may be somewhat difficult to provide an exact date when statements made in casual circumstances are made.  Thus, we will not require Defendant to provide the precise dates on which such statements were made; however, she must pinpoint the timeframe with much more accuracy.

Defendant’s references to the recipients and location of the defamatory comments are likewise impermissibly vague.  Plaintiffs are also entitled to have this information pled in order to prepare their response and defend against such allegations.

Defendant argues that she should not be required to provide more specificity as Wife has superior knowledge of these facts.  We disagree.  Plaintiffs are entitled to be apprised of the precise conduct which is the basis for the cause of action asserted by Defendant.  For these reasons, we will sustain Plaintiffs’ Preliminary Objections and direct Defendant to amend her Counterclaim to plead these items with the requisite specificity.