# Sprague, R. v. Porter, J. > Superior Court of Pennsylvania · August 26, 2014 URL: https://www.frixlaw.com/law-library/cases/2720979 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** August 26, 2014 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2720979 ## Opinion text J-A15016-14 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37 RICHARD A. SPRAGUE, ESQUIRE IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. JILL PORTER, PHILADELPHIA NEWSPAPERS, LLC, PHILLY ONLINE, LLC, PMH ACQUISITION, LLC, PHILADELPHIA MEDIA HOLDINGS, LLC Appellees No. 1649 EDA 2013 Appeal from the Order May 17, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 2930 January Term, 2010 BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.* DISSENTING MEMORANDUM BY PANELLA, J.: FILED AUGUST 26, 2014 The decision of the trial court in this case undermines the principles of As I will further discuss, the accusations made by the Appellees, aimed at a lawyer appropriately advocating in his capacity as a criminal defense attorney, would serve to repress the defense that every citizen of the United States is entitled. This case involves issues over which every practicing ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A15016-14 attorney in Pennsylvania should be concerned. As this Court stated in Commonwealth v. Connolly, 689 A.2d 950 (Pa. Super. 1997): Effective representation of a criminal defendant entails more than presenting a vigorous and cogent defense. favorable a light as possible so that the jury may view him as a fellow citizen clothed in the protective shroud of innocence rather than a state correctional institution jumpsuit. Id., at 953. I vigorously dissent from the decision of the Majority, which affirms on the basis of a decision that misapplies existing law. The appropriate standard of review in addressing a motion for summary judgment is that the court must review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. See, e.g., , decision, certified record, and appellate briefs, I conclude that the trial court failed to properly review the evidence of record in a light most favorable to the non-moving party, Attorney Richard Sprague. I must therefore dissent. The background and contextual facts necessary to evaluate the claims at stake in this case are largely uncontroverted. State Senator Vincent J. Fumo and an associated non-profit organization, Citizens Alliance -2- J-A15016-14 investigation, the FBI subpoenaed records and e-mails in the possession of Citizens in the spring of 2004. Thereafter, on the evening of February 18, 2005, the FBI executed sea and Harrisburg. As the investigation continued, the FBI discovered that after Citizens Fumo had deleted e-mails and their backups. In January 2006, the U.S. justice charges based upon the deletion of the e-mails and their backups. Fumo retained Attorney Sprague to discuss the pending obstruction of justice charges and possible defenses. At this meeting, Fumo blamed his information technology personnel for being overly zealous, and opined that he was not required to preserve the e-mails until his records, as opposed to rague and his associates informed Fumo that his opinion was incorrect, and that if he knew he was under investigation, he had a duty under federal law to preserve evidence. A few days later, Attorney Sprague met with Fumo once again to discuss the pending charges. At this meeting, Fumo inquired whether it would help his defense if a lawyer had advised him that he had no duty to preserve the e-mails unless he had been personally subpoenaed. After receiving an affirmative answer, Fumo left the office and returned a short while later, stating that he had a lawyer who would state that he had given -3- J-A15016-14 Fumo such advice at the relevant time. When Attorney Sprague asked for the name of the attorney, Fumo replied that it was Robert Scandone, Esquire. Attorney Sprague requested Attorney Scandone to endorse an affidavit to the fact that he had provided such advice to Fumo. Attorney Scandone ultimately supplied a letter to Attorney Sprague, dated February 10, 2006, that outlined discussions Attorney Scandone had with Fumo. In relevant part, the letter stated: I told him that Citizens was a separate entity and that his attorneys were required to respond with responsive records. If, in co asked to cooperate, that they should do so, though they were under no specific obligation to do so. I further explained that if the grand jury sought records from his office, that he and/or his staff members would be subpoenaed directly. Finally, I advised him that because this subpoena was not directed to him or his office, there was no reason for him or his staff to do anything other than what was done in the normal course of District Office business. Letter from Robert Scandone, Esq., 2/10/06. Attorney Sprague subsequently turned the letter over to the federal government. On February 6, 2007, then United States Attorney Patrick Meehan (who is now a member of Congress) held a press conference outlining his decision to charge Fumo and three of his aides on charges of fraud, tax offenses and obstruction of justice. At the conference, Meehan distributed a press release describing the allegations supporting the charges. -4- J-A15016-14 In response, on February 8, 2007, Attorney Sprague held a press conference, the substance of which forms the primary point of contention between the parties in the present appeal. Attorney Sprague opened the following statement: investigation, Senator Fumo went and sought advice from a lawyer, not me, but a lawyer, whether he had to change his [e- mail retention] policy. And this has been told to the government. Transcript of the Press Conference of Richard A. Sprague, 2/8/07, transcribed from a recording on 4/22/11, at 26. Attorney Sprague and Fumo also concluded that they desired a meeting with the United States House of Representatives Judiciary Subcommittee on Commercial and Administrative Law and the United States Senate Majority Whip to discuss their belief that the Justice Department was selectively prosecuting Democrats. The Subcommittee requested a memorandum supporting this belief. Subsequent to this meeting, Attorney Sprague sought to withdraw from representing Fumo. However, prior to withdrawing, Attorney Sprague committed to drafting the memorandum for the Subcommittee as a final -5- J-A15016-14 drafted the memorandum, and submitted it to the Subcommittee on November 21, 2007. This memo misusing his office for partisan political purposes. The document began with Senator Fumo . (Emphasis seeks to provide the Subcommittee with the background and context which he believes shows how the pervasive politicization of the Department of the unfair and unprecedented manner in which appeal, in footnote 12, the memorandum states The last broad category of charges relates to allegations of conspiracy to obstruct justice. In this regard, Senator Fumo is alleged to have conspired to obstruct the investigation. In pursuing these charges, the government intentionally ignored documentary evidence of a long standing document retention policy and was followed until a search warrant was served in the advice for much of the relevant period. Memorandum to Eric Tamarkin, Esq., from Sprague & Sprague, 11/21/2007, affirm this most basic tru -6- J-A15016-14 in law enforcement requires the elimination of partisan politics from its decision making. Id., at 11. advised him that the e-mails could be deleted so long as he or his office had not been served with a subpoena. As a result of this testimony, the court ruled that Fumo had waived the attorney-client privilege, and the federal government subpoenaed Attorney Sprague to testify. On the stand, Attorney Sprague testified that he had never given such advice to Fumo. See N.T., Trial, 2/18/09, at 90. On cross-examination, Attorney Sprague been advised by Attorney Scan Id., Id., at 163. to the Subcommittee, and the assertion that the evidence concerning uncontroverted. There was no one else to dispute it. Did I believe it? Of Id., at 164. On Friday, February 20, 2009, reporter Jill Porter published a column -7- J-A15016-14 Porter included references to the opinion of Robert Tuttle, professor of professional responsibility at George Washington University School of Law. Professor Tuttle had opined that, while it may not be illegal, it is immoral for an attorney to lie to the public. However, Professor Tuttle later wrote a letter to the newspaper complaining that Porter had misleadingly used his comments out of context to suggest that he was offering an opinion on nor did [he] intend to offer, any opinion about the conduct of Mr. Sprague, would be misled into believing that he had offered such an opinion, and that the reader would not know that he was only opining about an instance involving materially inconsistent statements. Porter, 2/8/12, at 55. She further admitted that she had not attempted to say. Id., at 61 (emphasis supplied). -8- J-A15016-14 Attorney Sprague subsequently filed a complaint against Appellees, asserting causes of action for defamation and invasion of privacy - false light. Discovery ensued, and ultimately, the trial court granted Appellees motion for summary judgment on all claims. Under the First Amendment to the United States Constitution, a Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). If it cannot be conclusively determined that the publication was false, or even if the factfinding process is unable to resolve conclusively whether the speech was true or false, the plai See id. burden of proving by clear and convincing evidence that the offending stateme then provides a string of citations that ostensibly stand for the proposition of those cases, only one of th statement. The first citation in the string, Hepps v. Philadelphia Newspapers, Inc., 485 A.2d 374, 389 (Pa. 1984), is a case in which a private, non-public figure sued a newspaper for defamation. On appeal, the newspaper -9- J-A15016-14 conceded that state law could assign the burden of establishing truth upon a defendant in a case concerning a non-public figure. Thus, the Court in Hepps was concerned with the issue of whether the application of Amendment doctrine. The Court held that presumption of falsity still applied and reversed the case, as the trial court had held that the presumption was no longer valid under the First Amendment. The portion of the decision cited by the trial court in its opinion on appeal in this case deals with the issue of punitive damages. The Hepps Court held that the traditional presumption of falsity does not contribute to Specifically, the Court held that the court could not presume actual malice pursuant to the traditional presumption of falsity: In this instance it would require presuming not only that the content was false, but also that the defendant at the time of publication knew of that falsity. This is the clearest type of double presumption that we have rejected. Id., at 389. Accordingly, the Hepps Court treated falsity as a separate element from the state of mind of the defendant. However, the opinion does not explicitly state a standard of proof for falsity, only for the element of reckless disregard of the truth. See id. Hepps is a problematic citation, as it was reversed by the Supreme Court of the - 10 - J-A15016-14 United States in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 Hepps II that the plaintiff bear the burden of showing falsity, as well as fault, before Id., at 776. Once again, it is clear that the element of falsity is separate from the fault element. If any question remained, the Supreme Court of the United States explicitly answered it in footnote 4, which was sur We also have no occasion to consider the quantity of proof of falsity that a private-figure plaintiff must present to recover damages. Nor need we consider what standards would apply if the plaintiff sues a nonmedia defendant. Id., at 779 n.4. Thus, the ultimate, authoritative opinion in the Hepps litigation explicitly disclaimed that it was setting forth a clear and convincing standard for the burden of proof for falsity. Ertel v. Patriot-News Co., 674 A.2d 1038 (Pa. 1996), is another case utilized by the trial court as authority for its assertion that Attorney Sprague bore the burden of proving falsity by clear and convincing evidence. The relevant passage in Ertel provides: Thus, it is the burden of a public figure plaintiff, such as Ertel, to In addition to establishing that the statement was false, the public figure plaintiff must also establish that the defendant - 11 - J-A15016-14 Id., at 1041. Once again, the opinion does not explicitly assign the clear and convincing standard to the Ertel Id., at 1042. Thus, there was no need to apply any stan evidence of falsity, as there was none. And, once again, the element of falsity is treated as separate from the element of actual malice. Another case cited by the trial court in support of its assertion regarding the appropriate standard for the burden of proof on the issue of falsity is Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). The trial court cites to footnote six of the Milkovich opinion, which I quote in full, omitting only citations: In Hepps, the Court reserved judgment on cases involving nonmedia defendants and accordingly we do the same. Prior to Hepps, of course, where public-official or public-figure plaintiffs were involved, the New York Times rule already required a showing of falsity before liability could result. Id., at 20 n.6. Footnote 6 clearly does not explicitly assign a clear and convincing standard to the burden of falsity. And again, it is clear that the issue of falsity is treated as separate from the issue of fault or actual malice. The one case cited by the trial court that actually supports its assertion that a clear and convincing standard applies to the burden of proving falsity is Tucker v. Philadelphia Daily News, 848 A.2d 113, 127-128 (Pa. 2004). - 12 - J-A15016-14 Pennsylvania, begins its review of existing federal case law on the First Amendment limits on state defamation claims with the following statement: To prevail on their defamation claim, the Tuckers, as public figures, must prove, by clear and convincing evidence that the allegedly defamatory statements were false and that Appellant- newspapers either knew they were false or recklessly disregarded their falsity. Id. Thus, for the first time, a case cited by the trial court for the proposition that the appropriate standard is clear and convincing actually contains language supporting that conclusion. However, there are several readily apparent reasons to doubt that the Supreme Court of Pennsylvania intended to impose a higher evidentiary standard than the minimum set forth by the United States Supreme Court for compliance with the First Amendment. First, the fact that the quoted believe that the Supreme Court was focused on the issue of actual malice, and not falsity. As noted above, case law has consistently treated these two elements as distinct, and therefore discussion of the standard of proof applicable to falsity was likely not the principle intent of the paragraph. Second, the Supreme Court cited to Milkovich to support the proposition. See id. As noted previously, Milkovich does not support this conclusion, and, in fact, explicitly rejects the notion that it addressed the issue of the standard for the burden of proving falsity. Furthermore, the Tucker opinion pinpoint cites to 497 U.S. at 15 as its authority for the - 13 - J-A15016-14 sentence at issue. The only mention of the clear and convincing standard on page 15 of the U.S. Reporter is an acknowledgment that the clear and convincing standard applies to the burden of actual malice borne by public officials and public figures. Finally, the Supreme Court of Pennsylvania did not engage in an extended analysis of the application of the clear and convincing standard to the burden of proving falsity. It is unlikely that such a drastic shift in the law would be imposed in such a flippant fashion. As a result, I conclude that the single sentence in Tucker highlighted by the trial court does not represent a definitive statement of Pennsylvania law. Interestingly, this Court has recently addressed the issue explicitly, and reached the opposite conclusion. See Joseph v. Scranton Times L.P., 959 A.2d 322, 335 (Pa. least, then, the question of the standard of proof applicable to Sprague in the instant matter is an issue deserving of a more thorough analysis than a single, conclusory sentence. As such, I would reject joining the Majority in affirming on the opinion of the trial court, even if I agreed with their ultimate decision to affirm. I conclude, however, that the evidence of record, when viewed under the appropriate standard of granting all reasonable inferences to the non- moving party, is more than sufficient to establish, clearly and convincingly, - 14 - J-A15016-14 article penned by Jill Porter was false in significant aspects. Therefore, despite the incorrect standard applied by the trial court and the majority, reversal of the trial court is appropriate under either standard the clear and convincing standard or the preponderance of the evidence standard. As a prefatory matter to this discussion, it is important to understand the role of attorneys in the United States justice system. Professional persons who choose to become attorneys subject themselves to certain duties in excess of the common citizen regarding the quality of justice. See confronting every attorney in the representation of a client is the requirement of complete loyalty and service in good faith to the best of his Johns v. Smyth, 176 F.Supp. 949, 952 (E.D. Va. 1959). This duty Osborn v. Shllinger advocacy required by the Sixth Nix v. Whiteside, 475 U.S. 157, 189 (Blackmun, J., concurring in judgment) (internal citation omitted). The Third Circuit Court of Appeals has explicitly rejected the contention that - 15 - J-A15016-14 a criminal defense attorney must act on his personal beliefs regarding his While defense counsel in a criminal case assumes a dual role as conjectures about the guilt or innocence of his client. It is the role of the judge or jury to determine the facts, not that of the attorney. It is apparent that an attorney may not volunteer a mere innocence are perjured. To do so would undermine a cornerstone of our system of criminal justice. U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. (Pa.), 1977). role in the Pennsylvania Rules of Professional Conduct. Rule 3.3 prohibits a lawyer from knowingly making a false statement of material fact or presenting evidence of such. However, the Rule then explicitly distinguishes situations where a lawyer merely believes that evidence is false: may refuse to offer evidence, other than the testimony of a defendant in a Rule 3.3(a)(3). As far back as 1884, at the least, it was recognized that a lawyer is not to act on merely his opinion, as opposed to certain knowledge, assistance because in his judgment the case is unjust and indefensible, - 16 - J-A15016-14 od, Legal Ethics, (5th Ed. 1884), at 84. respond to the press conference held by the United States Attorney in order to preserve a fair jury pool. Former Philadelphia District Attorney and Common Pleas Judge Lynne Abraham testified that a criminal defense attorney holds a press conference to counter the power of the prosecutor to influence public perception through press conferences. See N.T., Deposition of Lynne Abraham, Esq., 1/16/13, at 127. public to know about this case and why he or she thought the prosecutor brought it against him. What the defense attorney is going to say, my client is innocent, s home in bed, he was in Ohio, power of the prosecutor to have all those cameras in front, make all those statements, and this d for him. His lawyer is his voice, whoever the defendant is: powerful and back against the power of the prosecution. Id. In the present matter, the alleged defamatory statements were printed used select quotes from a press conference Attorney Sprague held to - 17 - J-A15016-14 counter the press conference held by Meehan to announce the charges everybody here for taking the time to come and listen to particular relevance to the present litigation, Attorney Sprague stated that lawyer, not me, but a lawyer, whether he had to change his policy. And this Id., at 26. As noted previously, was true. In her article, Porter wrote that Attorney Spr assertion that Fumo had been acting on the advice of counsel with several additional assertions: So one of the most powerful attorneys in Philadelphia believes that it is acceptable to deliberately mislead the public on behalf of a client? of his legal obligation? such as it is. unethical under the code of legal conduct, which specifically prohibits misleading a court but not the public. - 18 - J-A15016-14 But it sure seems underhanded and immoral to me. But not every lawyer would deliberately sell the public a bill of goods. Lawyers are clearly prohibited from lying in court and in sworn testimony before, say, a legislature. professor of law at George Washington University Law School. expert on legal ethics. difference between deferring and deflecting a question and this role from somebody offering a lawful service to somebody So while Sprague may feel triumphant this week about being either. Porter couches many of her statements as opinions, there are several explicit and implicit defamatory allegations of fact. At the beginning of the - 19 - J-A15016-14 The trial court held, and Appellees argue, that Attorney Sprague has not adduced sufficient evidence to establish that this allegation was false. A Dictionary, (1995), at 631 a false statement Id., at 633. allegation to be true, the statements by Attorney Sprague she was focusing on needed to be false. The statements by Attorney Sprague at issue concern the same underlying allegation by Fumo that he had received legal advice from an attorney that he was permitted to delete e- subpoenaed but before he was personally subpoenaed or searched. First, at Senator Fumo went and sought advice from a lawyer, not me, but a lawyer, pt of the Press Conference of Richard A. Sprague, 2/8/07, transcribed 4/22/11, at 26. The second upon (albeit erron Memorandum to Eric Tamarkin, from Sprague & Sprague, 11/21/07, at 10 n.12. - 20 - J-A15016-14 Appellees argue that Porter based her allegation that Attorney Sprague was a liar only upon the memorandum to the Subcommittee, and not his press conference. Even accepting this as true, which I believe constitutes motion for summary judgment, I conclude that the record establishes, under any standard of pr memorandum to the Subcommittee was not false. When Porter was questioned under oath, the following exchange occurred: Q. Okay. Is it a true or false statement as far as you know from your thorough analysis of all of the information before writing this article that the government ignored, the government upon, albeit erroneous, legal advice for much of the relevant period? Is that true or false? A. N.T., Deposition of Jill Porter, 2/8/12, at 54-55. Thus, Porter has admitted , as it was not false. Granting this evidence all reasonable inferences, as we must at this stage of article to satisfy any evidentiary burden placed upon Attorney Sprague. difference of opinion, based on disclosed facts, about whether it is morally acceptable for a lawyer to publicly lie on be - 21 - J-A15016-14 Opinion, 11/1/13, at 29. Furthermore, the trial court added a footnote to this finding, noting that Attorney Sprague, acting in his professional capacity representing a client in court, had argued that allegations of lies constituted nothing more than non-actionable opinion. See id., n.12. These passages fundamentally misapprehends the nature of this case. First, the trial court assumes that Attorney Sprague lied; I have already shown that Porter has admitted that he did not. Second, the footnote referencing Attorney reveals that the trial court suffers from the same fundamental misunderstanding of the role of an attorney from which Porter suffered. law. The trial court found that publishing an allegation that a public figure lied constitutes a statement of pure opinion that is non-actionable. In so doing, however, the trial court fails to cite any binding authority. Accordingly, I conclude that this finding by the trial court was also in error.1 ____________________________________________ 1 It is worth noting that the U.S. Supreme Court has rejected the argument Milkovich, 497 U.S. at 18. Rather, the Court observed that expressions of opinion often imply assertions of objective fact. See id. (Footnote Continued Next Page) - 22 - J-A15016-14 Having established that the trial court erred in reviewing the record pursuant to the necessary standard, I will not extend this already long merely s falsity. Attorney Sprague contends that he adduced sufficient evidence of record to establish that Porter deliberately misled Professor Tuttle. Furthermore, Attorney Sprague argues that Porter m quotes out of context in a manner that implied Professor Tuttle was opining explicitly disclaimed any such opinion, I conclude that Attorney Sprague has also satisfied any evidentiary burden of establishing that this implicit allegation was also false. Turning to the issue of actual malice, I begin by noting that at least on Attorney Sprague bears the burden of establishing actual malice by clear and convincing evidence. However, I once again conclude that the trial court did not utilize the appropriate standard to review the evidence of record at the summary judgment stage. The Supreme Court of Pennsylvania has held _______________________ (Footnote Continued) those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a Id., at serve as the basis of a defamation action. See id., at 20 n.7. - 23 - J-A15016-14 that the clear and convincing standard of proof is only relevant upon post- trial review of the record, not at the summary judgment stage. See Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 908 (Pa. 2007). The only issue at the summary judgment phase is whether the plaintiff has adduced evidence capable of establishing a dispute of material fact. See id. evidence to allow a fact-finder to conclude that the statement at issue was N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-280. In determining whether actual malice has been established, the reviewing court must consider the entirety of the factual record. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). At her deposition, Porter testified that she did not know what part of ittee was false, nor did wrote the article. See N.T., Deposition of Jill Porter, 2/8/12, at 61. Porter Id., at 62. While the trial court correctly notes that a lack of investigation is not see Tucker, 848 A.2d 113, 130, review of the record indicates to me that Attorney Sprague is not - 24 - J-A15016-14 record as a whole reveals that Attorney Sprague has adduced significant evidence to establish that Porter purposely avoided the truth of her allegations. See Harte-Hanks, 491 U.S. at 692. Here, as noted above, Attorney Sprague has adduced sufficient defamatory statements. Also, as noted previously, Porter has testified that Furthermore, the admittedly truthful literal interpretation, viewed in the context I set forth above concerning the role of an attorney, is sufficient evidence that Porter was alerted to the probability of the falsity of her was arguing for Fumo. His explicitly qualified statements, taken in context, were enough to establish that Porter knew he was not speaking for himself, validity of her claims certainly gives rise to an inference that she was In addition, the record reveals that Professor Tuttle was not offering an opinion on the conduct of Attorney Sprague. See N.T., Deposition of Robert W. Tuttle, 1/7/13, at 37. Appellees contend that the article does not - 25 - J-A15016-14 However, it is certainly fair to infer that the quotations were a direct comment on Attorney Sprague, as they were bracketed by paragraphs -like focus on evidence of lack of investigation ignored the abundant evidence in the rest of the record that could support a finding of misapplied the law. Initially, the trial court concludes that Attorney Sprague cannot have suffered damages since it found that the allegations in the erroneous, and therefore this cannot be a basis for concluding that Attorney Sprague suffered no damages. Next, the trial court concludes that Pennsylvania law requires a conclusion is not an accurate description of Pennsylvania law. A panel of this Court has recently observed: [I]n addition to evidence of reputational harm, personal compensable for defamation. Pilchesky, 12 A.3d at 444. See also Brinich, 757 A.2d at 397 (quoting Restatement (Second) of Torts § 621, Comment at b.); 50 Am.Jur.2d Libel and Slander - 26 - J-A15016-14 Joseph v. The Scranton Times, L.P., 89 A.3d 251, 265-266 (Pa. Super. 2014) (Joseph II). The panel in Joseph II reversed the trial court as the panel concluded that the trial court had not considered evidence of non- reputational damages in reaching its non-jury verdict. See id., at 266. Thus, the trial court is incorrect in finding that Attorney Sprague was required to adduce evidence of damage to his reputation. In its other alternative theory in support of dismissal, the trial court asserts that Attorney Sprague was required to present expert testimony regarding his mental and emotional injuries. First, I note that the authority relied upon by the trial court, Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988 (Pa. 1987), did not concern defamation at all; rather, it concerned the tort of intentional infliction of severe emotional distress. As such, it certainly should not be relied upon in summarily dismissing Attorney prove compensable damages. Joseph II, 89 A.3d at 266 (summarizing lay testimony of emotional harm and concluding that trial court erred in not considering such testimony in reaching non-jury verdict); Joseph I, 959 plaintiff's testimony concerning damage to reputation and emotional harm was sufficient to prove compensable damages ; Wilson v. Benjamin - 27 - J-A15016-14 reputational injury and emotional distress sufficient to establish damages in defamation). invasion of privacy false light claim, I note that I have already set forth correctly recognized that the First Amendment jurisprudence elucidated by N.Y. Times and its progeny apply to false light claims. However, as noted above, I conclude that the trial court erred in its application of the applicable standards. For the same reasons as set forth above, I conclude that the trial court erred in holding that the First Amendment bars relief on Attorney In the alternative, the trial court held that the record cannot support a false light claim. The trial court based this result on its conclusion that false light claims cannot be premised upon the publication of public facts about the plaintiff, citing Strickland v. University of Scranton, 700 A.2d 979 (Pa. Super. 1997). I agree with the trial court that Strickland certainly stands for that proposition. However, I note that it is, unfortunately, far from clear that Strickland represents the law of Pennsylvania on this matter. As Appellees argue, in their brief on appeal, prior decisions of the Superior Court are binding precedent on a subsequent three-judge panel of this Court. See Commonwealth v. Hull, 705 A.2d 911, 912 (Pa. Super. 1998). Thus, the Strickland panel had no authority to overrule Larsen v. - 28 - J-A15016-14 Philadelphia Newspapers, Inc., 543 A.2d 1181, 1189 (Pa. Super. 1988), blic, as well as the trial court misapplied the law when it held that the record could not 2 support ____________________________________________ 2 I further observe that the Supreme Court of Pennsylvania granted a Pennsylvania recognize a cause of action for false light invasion of privacy by an elected official for publications discussing her public, not private, Krajewski v. Gusoff, 74 A.3d 119 (Pa. 2013) (Order). However, that appeal was subsequently dismissed as moot. See Krajewski v. Gusoff, 84 A.3d 1057 (Pa. 2014) (Order). - 29 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2720979. Public record. Not legal advice.