Meyers, M. v. Certifiied Guaranty Company, LLC

J-A22034-19

2019 PA Super 316

MATTHEW MEYERS AND EMILY : IN THE SUPERIOR COURT OF

MEYERS, INVESTMENT GRADE : PENNSYLVANIA

BOOKS, LLC :

:

Appellant :

:

:

v. :

: No. 391 EDA 2019

:

CERTIFIED GUARANTY COMPANY, :

LLC, CLASSIC COLLECTIBLE :

SERVICES, LLC, MATTHEW A. :

NELSON, AND HERITAGE :

AUCTIONEERS & GALLERIES, INC. :

Appeal from the Order Dated January 22, 2019

In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): Dec. Term, 2016 No. 01182

BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED OCTOBER 18, 2019

The Appellants, Matthew Meyers and Emily Meyers (the Meyers) appeal

the order of summary judgment entered in the Philadelphia County Court of

Common Pleas as to their claims of defamation and false light against the

Appellees, Certified Guaranty Company, LLC (CGC), Classic Collectible

Services, LLC (CCS), Matthew A. Nelson (Nelson) and Heritage Auctioneer &

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-A22034-19

Galleries, Inc. (Heritage).1 The Meyers contend that because there existed

questions of material fact that should have gone to the jury, the trial court

erred in ruling that those claims were not actionable. Based on the facts

outlined in the parties’ respective motions and responses, the order of

summary judgment must be reversed as to the defamation and false light

claims but affirmed in all other respects.

I.

The Meyers began restoring comic books professionally in 2013. As they

gained experience, they learned the tools of the trade, such as color touch,

piece replacement, tear seals, cleaning or replacing staples, re-glossing and

cover cleaning. By skillfully applying those methods, a restorative artist can

breathe new life into an aged and worn comic book, substantially increasing

its market value. Comic books sold at auction are typically graded on a “1 to

10” scale for overall condition, an “A to C” scale for the quality of restoration,

and a “1 to 5” scale for the quantity of restoration work.

CGC is an entity which grades and certifies comic books for valuation

purposes. CCS is an entity that restores comic books and it is owned by CGC.

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1 The Appellant, Investment Grade Books, LLC, also asserted counts of

intentional interference with existing business relations, intentional

interference with prospective contractual relations, and civil conspiracy. The

trial court granted summary judgment in favor of CGC, CCS, Nelson and

Heritage as to all those counts, but they are not at issue in this appeal; nor is

the Meyers’ claim of civil conspiracy. See Pa.R.A.P. 1925(b)(4)(vii) (errors

not included in a Statement of Issues are waived on appeal).

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At the relevant times, Nelson had dual roles as both a grader for CGC and the

president of CCS. In his capacity as a grader, he evaluated much of the

Meyers’ work. He also corresponded with the Meyers beginning in 2014,

advising them on how to avoid the use of irreversible restoration techniques

that would decrease a comic book’s auction value, such as “trimming” the

outer dimensions of pages and applying too much “color touch” to artwork.

It is undisputed that Nelson appreciated the Meyers’ talent and sought

to hone their ability. In fact, in 2014 alone, the Meyers had received the

highest possible rating from CGC on seven comics they had submitted for

evaluation. The next year, in January 2015, the Meyers met with Nelson at

his office in Florida. Nelson reviewed a number of their restored comic books

and gave them additional advice about which processes to use or avoid.

At the meeting, Nelson complimented a restored “Batman #1” as the

best he had ever seen. Nelson also offered to “press” the Meyers’ restored

copy of “Amazing Fantasy #15” in order to remove a warp in the spine and

thereby achieve an almost perfect grade from CGC. The Meyers followed

Nelson’s advice and were grateful to be mentored by a respected authority on

comic book restoration.

The Meyers continued receiving generally high gradings from CGC well

into 2015, having followed many of Nelson’s suggestions. Nelson confirmed

as much in April 2015, emailing them that a recent submission had earned a

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very high grading. CGC awarded the Meyers the highest known grading in

May 2015 for restored editions of two other comic books.

In 2015, the Meyers received two low gradings by CGC as to another

“Batman #1” and an “Action Comics #7.” The Meyers acknowledged that

unusual circumstances during the restoration had caused a “stiffer” and

“thicker” cover than usual on the Action Comics #7. Tape applied by a

previous owner of the Batman #1 could not safely be removed, increasing its

weight. Because of the disagreements between Meyers and Nelson on CGC’s

grading policies, the Meyers began having their work graded by a competitor

of CGC called Comic Book Certification Service (CBCS).

The falling out between Nelson and the Meyers then took a public turn.

On the Collector’s Society forum, an online message board, a debate emerged

among posters as to why CGC had decided to stop accepting the Meyers’ work.

CGC owns and operates the forum and Nelson moderated it as an

administrator.

In a December 2015 message board thread, numerous posters

questioned whether the Meyers were doing “re-creation” rather than

“restoration” of original work. See Defendants’ Motion for Summary

Judgment, Exhibit “K.”. Posters also remarked that CGC had decided to stop

accepting work from the Meyers because they were destroying comic books

rather than restoring them. See id. (“From what I’m hearing it seems CGC

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won’t grade these books because they are more ‘re-creations’ than

‘restorations’”).

It bears emphasizing here that within the industry, a comic book’s value

becomes greatly diminished once any component is substituted or removed,

such as “trimming” off the damaged edges of a page or “reprinting” covers

with a Xeroxed copy. Such practices both mar the quality of the original comic

book and mislead collectors about how much of the original work remains.

“Re-creation” is often synonymous with “fake” or “counterfeit.”

The Meyers addressed those concerns in posts to the thread dated

December 30, 2015, explaining some of their restoration methods on certain

projects and the reasons they stopped submitting their work to CGC. Id.2

They denied that any of their work was “fake” or photocopied and claimed that

they had stopped submitting work to CGC because they did not want their

“proprietary techniques in the hands of CCS – the industry leader and [their]

direct competition.” Id.

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2 In a highly technical post on August 11, 2016, to the CGC message board,

the Meyers explained that they would only “trim” extensively restored comic

books when necessary to remove prior restoration. The post referred

specifically to a highly valuable Detective Comics #27, which had been subject

to lengthy discussion on the message board, including a post by Kenny

Sanderson, an employee of CGC and CCS, who had remarked that it had been

“trimmed.” See Response in Opposition to Defendants’ Motion for Summary

Judgment, at Exhibit “A,” pp. 83-84 (Deposition of Matthew Meyers).

Therefore, while the Meyers may have trimmed certain comic books, the

evidence makes it difficult to say whether original material or prior restorative

materials were removed in the process.

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That same day, Nelson responded on the message board with a post

that is now at issue:

Up to the point we stopped receiving submissions there were

issues with the work, reflected in our assigning either a B or C

classification. A decision was going to be made whether to stop

taking books that exhibited questionable work, but submissions

ceased . . . The point of professional restoration is to return a book

back to as close to its original state as possible using reversible

materials. When work becomes so extensive that it becomes hard

to tell what is real and what is re-created, it is impossible to

accurately and fairly represent a grade to the market.

Id. (Emphasis added).

That post, in turn, generated dozens of lengthy responses on the thread

by third parties, many of which cast the Meyers in a negative light:

At this point there is still a bit of a credibility gap between what

[the Meyers have] said and what Matt Nelson just said.

[The Meyers] said that they didn't go to CGC because Matt is under

their umbrella and they didn't want CCS appropriating their

restorative techniques.

But [Nelson] just confirmed that CGC essentially determined the

books were ungradable and showing restoration techniques that

were questionable.

Evidently [CBCS] has no such qualms and will grade anything for

the business and that's why these books are in [CBCS casings].

Id.

The doubts sown in such posts prompted Nelson to respond again, to

clarify “misconceptions” on the thread that could “potentially [affect] the

health of the restored market in the future[.]” Id. On January 3, 2016, he

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then made the following statements, which like the earlier post, are also

alleged to be defamatory:

There are two particular aspects I hope to have been resolved.

They were present on the books we graded (hence the B and C

notations we gave) which were subsequently cross graded by

CBCS, who gave them professional designations and usually a

higher grade. One was the large amount of color touch being

applied to the covers, and the other was the material used as a

glossing agent over that color touch.

....

I believe [the Meyers] used a product called Golden Gel, which is

irreversible[.] To achieve all of these 9.6’s and 9.8’s (according

to CBCS), either these flaws must be masked with a glossing

agent, or only very high grade copies are chosen for restoration.

Based on the information I’ve seen, I don’t believe that you are

restoring books that were previously unrestored high grade

copies. And I don’t think there are enough ‘perfect’ candidates

out there to produce the large number of ultra high grade books

that have entered the market in only the past few months.

Id. (Emphasis added). Nelson concluded by complimenting the Meyers’ talent

and remarking that after the “considerable strides” they had made, “a couple

of the books turned out really great by [CGC’s standards].” Id.

In addition to his public posts on CGC’s message board, Nelson made a

number of verbal statements about the Meyers to third parties, all of which

are alleged to be defamatory:

 Commenting to a broker (Marcos Mercado) and one of the Meyers’

buyers (“Cyrus”) in June 2015 that a Detective Comics #29 was

graded a “9,” but deserved a non-professional level designation of

“8.” Response in Opposition to Defendants’ Motion for Summary

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Judgment, at Exhibit “A,” pp. 82-83 (Deposition of Matthew

Meyers).3

 Commenting to Mercado and Cyrus in July 2015 that the Meyers’

work made comics “stiff,” making them more like “re-creations”

than restorations.” Id. at Exhibit “W,” p. 1 (Affidavit of Marcos

Mercado).

 Commenting to the managing director of the Heritage (James

Lonergran Allen) that the Meyers’ work made comics thick and

unnatural to the touch. Id. at Exhibit “I,” p. 25 (Deposition of

James Lonergran Allen).

Other CGC employees allegedly had made similarly negative remarks

about the Meyers’ work. Paul Litch (Litch), CGC’s primary grader, sent an

email in October 2014 to the managing director of the auction house, Heritage,

saying that CGC had “caught a fake cover.” See Response in Opposition to

Motion for Summary Judgment, at Exhibit “S.” The cover was never proven

to be a fake and Litch could not explain in his deposition how he arrived at

that conclusion.

Rumors about the Meyers’ relationship with Nelson/CGC/CCS spread

within their industry, beyond CGC’s online message board.4 Several

____________________________________________

3 Matthew Meyers claimed that these comments caused the buyer to become

disgruntled and request a refund, ultimately receiving $3,000 back from the

Meyers out of the total purchase price of $24,000. See id. CGC did grade

the item a “C,” but the record is not clear as to whether Nelson discussed the

factual basis of that grading.

4See Matthew Meyers, Deposition, at 102 (“Well, I mean just about anybody

who’s ever talked to us says that they know that CGC won’t grade our books

and has reiterated everything that Matt has said.”).

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employees of Heritage took part in an email chain in which they wrote to each

other that the Meyers were “reprinting” comic books and that CGC would no

longer be grading them. Because of these suspicions, Heritage made a

decision not to auction any of the Meyers’ restorations. Yet during discovery

in the ensuing litigation, none of those Heritage employees could verify the

truth of those assertions or even say how they came to the knowledge

exchanged in their emails. See, e.g., Defendants’ Motion for Summary

Judgment, at Exhibit “N” (Deposition of Barry David Sandoval).

James Lonergran Allen (Allen), an employee of Heritage, admitted that

at one point, he thought the Meyers’ work was “fake” and said so to the owner

of one of their restorations at a New York convention in 2015. See Response

in Opposition to Motion for Summary Judgment, at Exhibit “I,” at 41

(Deposition of James Lonergran Allen). The owner was able to convince Allen

that his comic book was not a fake but Allen did not immediately report this

episode back to his colleagues at Heritage who had still been dubious about

the Meyers’ work. Id. at 41-43.

The Meyers also alleged that a number of collectors and dealers

conveyed to them at a convention in Chicago, in August 2016, that CGC had

refused to grade their work and that Heritage had refused to auction it. When

the Meyers spoke directly with Heritage’s officers, they admitted to making a

decision not to accept their submissions. That decision was ultimately

reversed after the Meyers agreed to special conditions as to how their

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restoration work would be described to buyers at auction. These conditions

included caveats on a comic book’s casing that warned of non-standard

restoration techniques.

In their individual capacities and as their corporate entity, Investment

Grade Books, LLC, the Meyers alleged that the above conduct by CGC, CCS,

Nelson and Heritage constituted defamation, false light, tortious interference

with a contract and civil conspiracy. See Complaint, at ⁋⁋ 61-97. Those

defendants each filed motions for summary judgment as to all claims against

them.

The trial court granted those motions for summary judgment and

dismissed the action.5 In its Rule 1925(a) opinion, the trial court reasoned

that the Meyers’ defamation claims concerned statements based on proven

facts “not capable of defamatory meaning” or not published to a third party.

Trial Court Opinion, 5/8/2019, at 15-18. The trial court also found that the

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5 “[S]ummary judgment is appropriate only in those cases where the record

clearly demonstrates that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law.” Atcovitz v.

Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa. R.C.P.

No. 1035.2(1). When considering a motion for summary judgment, the trial

court must construe all facts of record and make all reasonable inferences in

the light that most favors the non-moving party. See Toy v. Metropolitan

Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). Any question as to whether

there exists a genuine issue of material fact must be resolved against the

moving party, and the right to summary judgment must be “clear and free

from all doubt.” Id.

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Meyers had presented no evidence of reputational harm, a necessary element

of defamation. Id. at 16.6

As to the false light claim, the trial court found that none of the subject

statements had been publicized to an extent necessary to create an issue of

fact for the jury. Id. at 19. Moreover, the Meyers had “assumed the risk” of

damaging responses by posting on CGS’s message board and inviting Nelson

to respond. Id. This appeal followed.7

II.

On appeal, the Meyers contend that the statements at issue

communicated to third parties that they re-created rather than restored comic

books. The Meyers argue that those statements are defamatory because they

suggested the Meyers are incompetent and lacking in integrity in the conduct

of their business. According to the Meyers, the underlying premises of the

statements are objectively false. In their brief, CGC, CCS, Nelson and

Heritage contend that the orders of summary judgment should be affirmed

____________________________________________

6 It is unnecessary to recount the trial court’s rulings as to the remaining

counts in the Meyers’ complaint because they are not at issue in this appeal.

7 On appeal, “an appellate court may reverse a grant of summary judgment if

there has been an error of law or an abuse of discretion.” Weaver v.

Lancaster Newspapers, Inc., 926 A.2d 899, 902–03 (Pa. 2007) (internal

citations omitted). A de novo standard of review applies as to whether there

exists an issue of material fact, as this presents a pure question of law. Id.

Appellate review in this context must be done in the context of the entire

record. Id. at 903.

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because, as discussed in the trial court’s opinion, all of the statements at issue

are true and, therefore, not actionable.8

Before we address the merits, a short review of the law of defamation

is needed.

III.

A.

“Defamation is a communication which tends to harm an individual’s

reputation so as to lower him or her in the estimation of the community or

deter third persons from associating or dealing with him or her.” Elia v. Erie

Ins. Exch., 634 A.2d 657, 660 (Pa. Super. 1993); see Bell v. Mayview

State Hosp., 853 A.2d 1058, 1062 (Pa. Super. 2004) (same).

In an action for defamation, the plaintiff has the burden of proving:

(1) The defamatory character of the communication; (2) Its

publication by the defendant; (3) Its application to the plaintiff;

(4) The understanding by the recipient of its defamatory meaning;

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8 CGC, CCS, Nelson and Heritage also argue in the alternative and for the first

time on appeal that no Pennsylvania court has personal jurisdiction over them.

See Appellees’ Brief, at 34-35. However, “personal jurisdiction is readily

waivable.” Grimm v. Grimm, 149 A.3d 77, 83 (Pa. Super. 2016) (quoting

In re Estate of Albright, 545 A.2d 896, 902 (Pa. Super. 1988)); see also

Fletcher–Harlee Corp. v. Szymanski, 936 A.2d 87, 103 (Pa. Super. 2007)

(issue relating to personal jurisdiction waived for failure to comply with

applicable rules of court). These parties did not object to personal jurisdiction

at the trial level; so they have already acquiesced to the court’s authority over

them in this case. Although they assert in their brief that personal jurisdiction

in Philadelphia County was based on a single factual claim which the Meyers

have since abandoned, nothing precluded them from taking up the issue prior

to when this appeal was filed; so the issue cannot be addressed for the first

time here.

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(5) The understanding by the recipient of it as intended to be

applied to the plaintiff; (6) Special harm resulting to the plaintiff

from its publication; [and] (7) Abuse of a conditionally privileged

occasion.

42 Pa.C.S. § 8343(a).

A defendant may prevail against a plaintiff in a defamation suit by

proving: “(1) The truth of the defamatory communication; (2) The privileged

character of the occasion on which it was published; [and] (3) The character

of the subject matter of defamatory comment as of public concern.” Id. at §

8343(b).

The possibility of reputational harm from a statement must be examined

in full context. See id. “The nature of the audience is a critical factor” in this

assessment. Dougherty v. Boyertown Times, 547 A.2d 778, 783 (Pa.

Super. 1988).

B.

While the general elements of defamation are straightforward, the law

is less clear as to when a communication expresses an opinion or a statement

of fact. Pennsylvania has adopted the Second Restatement’s approach to

defamation,9 and it distinguishes a statement of fact from a statement of

opinion by whether it can be “objectively determined.” Restatement (Second)

of Torts, § 566, Comment (a). A statement of fact can be verified as true or

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9 See Krajewski v. Gusoff, 53 A.3d 793, 805-06 (Pa. Super. 2012).

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false, whereas an expression of opinion only conveys a subjective belief of the

speaker. Id. at § 566, Comment (a); see also Milkovich v. Lorain Journal

Co., 497 U.S. 1, 21 (1990) (quoting Scott v. News-Herald, 496 N.E.2d 699,

707 (Ohio. 1986)) (“Unlike a subjective assertion the averred defamatory

language is an articulation of an objectively verifiable event.”).10

As clarified in Comment (b) of Section 566, expressions of opinion fall

into two sub-categories:

(1) The pure type – which “occurs when the maker of the

comment states the facts on which he bases his opinion of the

plaintiff and then expresses a comment as to the plaintiff’s

conduct, qualifications or character.”

(2) The mixed type – which “while an opinion in form or context,

is apparently based on facts regarding the plaintiff or his conduct

that have not been stated by the defendant or assumed to exist

by the parties to the communication. Here the expression of

opinion gives rise to the inference that there are undisclosed facts

that justify the forming of the opinion expressed by the

defendant.”

Dougherty, 547 A.2d at 476-77 (quoting Restatement (Second) of Torts, §

566, Comment (b)); see also Braig, 456 A.2d at 1373 (quoting Beckman v.

Dunn, 419 A.2d 583, 587 (Pa. 1980)) (Comments may take the form of a

“mixed” expression of fact and opinion where the statement is made on the

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10 Whether construed as an expression of fact or opinion, a statement is

defamatory if it “contained a demonstrably false ‘factual connotation.’”

Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990) (explaining that the

inquiry is whether a statement is “sufficiently factual to be susceptible of being

proved true or false” with reference to “a core of objective evidence.”).

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basis “of undisclosed facts about the plaintiff that must be defamatory in

character in order to justify the opinion.”).

Comment (c) of Section 566 fleshes out the purpose of categorizing

speech in this manner:

A simple expression of opinion based on disclosed or assumed

nondefamatory facts is not itself sufficient for an action of

defamation, no matter how unjustified and unreasonable the

opinion may be or how derogatory it is. But an expression of

opinion that is not based on disclosed or assumed facts and

therefore implies that there are undisclosed facts on which the

opinion is based, is treated differently. The difference lies in the

effect upon the recipient of the communication. In the first case,

the communication itself indicates to him that there is no

defamatory factual statement. In the second, it does not, and if

the recipient draws the reasonable conclusion that the derogatory

opinion expressed in the comment must have been based on

undisclosed defamatory facts, the defendant is subject to liability.

The defendant cannot insist that the undisclosed facts were not

defamatory but that he unreasonably formed the derogatory

opinion from them. This is like the case of a communication

subject to more than one meaning. As stated in § 563, the

meaning of a communication is that which the recipient correctly,

or mistakenly but reasonably, understands that it was intended to

express.

Restatement (Second) of Torts, § 566, Comment (c) (emphases added); see

also Dougherty, 547 A.2d at 477; Veno v. Meredith, 515 A.2d 571, 575

(Pa. Super. 1986) (a pure expression an opinion “is actionable only if it may

reasonably be understood to imply the existence of undisclosed defamatory

facts justifying the opinion.”) (emphasis in original); Kurowski v.

Burroughs, 994 A.2d 611, 618 (Pa. Super. 2010) (when the facts underlying

the opinion are both true and fully disclosed, the opinion is not defamatory as

a matter of law, regardless of whether the opinion is “annoying and

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embarrassing” to the plaintiff) (citing Neish v. Beaver Newspapers, Inc.,

581 A.2d 619, 622–24 (Pa. Super. 1990)).11

The United States Supreme Court has distilled this concept yet further,

explaining that a speaker does not become immune from liability merely by

couching a statement as an “opinion”:

Even if the speaker states the facts upon which he bases his

opinion, if those facts are either incorrect or incomplete, or if his

assessment of them is erroneous, the statement may still imply a

false assertion of fact. Simply couching such statements in terms

of opinion does not dispel these implications[.]

Milkovich, 497 U.S. at 18-19.

Accordingly, and as held by Pennsylvania courts, a statement qualified

by the speaker as being only an opinion may nevertheless be considered a

statement of fact if it could “reasonably be interpreted” as such by the

audience. See Braig v. Field Communications, 456 A.2d 1366, 1373 (Pa.

Super. 1983). An opinion can be defamatory if is misleading or based on

undisclosed facts which are not true. Id.

Whether a statement constitutes an opinion or a statement of fact is a

question of law for a court to determine in the first instance. See Mathias v.

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11 A heightened standard applies where the plaintiff is a public official or public

figure, in which case it must be shown that the defendant published a

statement with “actual malice,” which is defined as having “knowledge that

[the statement] was false or with reckless disregard of whether it was false or

not.” Curran v. Philadelphia Newspapers, Inc., 546 A.2d 639, 642 (Pa.

Super. 1988). This standard does not apply in the present case because the

Meyers are not alleged to be public figures.

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Carpenter, 587 A.2d 1, 3 (Pa. Super. 1991). Once a court determines that

a statement can be construed as potentially defamatory, depending on the

kind of statement at issue, the jury then resolves whether the plaintiff can

prove the elements of defamation and whether the defendant can prove the

truth of the statement. See Kurowski, 994 A.2d at 616 (“If the court

determines that the communication is capable of a defamatory meaning, it

then becomes the jury’s function to decide whether it was so understood by

those who read it.”). “In determining whether the challenged communication

is defamatory, the court must decide whether the communication complained

of can fairly and reasonably be construed to have the libelous meaning

ascribed to it by the party.” Id. at 617.

C.

1.

Applying the above standards to this case, if Nelson made a derogatory

statement about the Meyers based on false and defamatory facts, he is subject

to liability for those statements, even if expressed as an opinion. The crux of

the subject posts on the CGC message board was a claim that the Meyers

were “re-creating” valuable comic books and passing them off as “restored.”

Nelson noted that CGC was about to stop grading the Meyers’ comic books

due to “issues with the work,” such as their suspected use of too much “color

touch” on covers and concealing a “glossing agent.” Nelson stated, or at least

implied, that the Meyers had only received non-professional gradings of “B”

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or “C” for work submitted to CGC, which could have been misleading in light

of the numerous “A” grades the Meyers had gotten from CGC in the past.

Readers could have understood Nelson to be pronouncing as a

statement of verifiable fact that the Meyers did not do professional level

restoration. Worse, they could have understood Nelson to be insinuating that

the Meyers were defrauding their buyers. For similar reasons, Nelson’s verbal

remarks to buyers and brokers could have reasonably been interpreted as

defamatory statements of fact or expressions of opinion. By telling those

individuals that the Meyers’ work was “re-creation” and that their restorations

felt “thick” or “like cardboard,” Nelson could have been understood as making

an accusation of fraud or incompetence against the Meyers. At least one buyer

seemed to interpret Nelson’s comments in a potentially defamatory context,

prompting him to demand a refund from the Meyers on a recent purchase.

Moreover, Nelson admitted that he did not have a full understanding of

the Meyers’ techniques and, without providing any figures or dates, Nelson

suggested on the message board that the Meyers had produced too many

“high grade” issues in a short span of time. In other words, Nelson thought

the work was too good to be true, leaving readers to wonder what exactly the

Meyers had done to hide the character of their work. Nelson also directly

contradicted the Meyers’ claims that they achieved consistently high grades

due to the sheer amount of time they put into each project rather than the

use of disreputable methods.

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What all of this shows is that there exists a genuine issue of material

facts as to whether the subject posts on the CGC message board12 and the

verbal statements to third parties were based on true facts. A trier of fact

could determine that all of the subject communications were either statements

of fact not verified to be true or mixed opinions based on misleading or

undisclosed defamatory facts. See Milkovich, 497 U.S. at 18-19; Braig, 456

A.2d at 1373; Beckman, 419 A.2d at 587. Summary judgment was improper

because if the facts underlying a statement “are either incorrect or incomplete,

or if his assessment of them is erroneous, the statement may still imply a

false assertion of fact.” See Milkovich, 497 U.S. at 18-19. Thus, since the

truth of the subject statements is in dispute, a jury should resolve that genuine

question of fact and determine if the Meyers can prove the elements of

defamation enumerated in 42 Pa.C.S. § 8343(a), and if the Nelson/CGC/CCS

can prove the elements of 42 Pa.C.S. § 8343(b).

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12 As an agent of CGC and CCS, Nelson’s statements clearly may be imputed

to those corporate entities. CGC argues that it has no liability for statements

posted on its message board under the Communications Decency Act, 47

U.S.C. § 230. See Appellees’ Brief, at 53-55. The Act shields a provider of

an interactive computer service from liability for content posted on the online

service, but only if the service provider did not itself generate the content.

The content at issue here was provided by Nelson, in his capacity as a member

of CGC, so CGC was both a service provider and a provider of the subject

content, making the Act inapplicable.

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2.

With respect to the defamation claim against Heritage, the trial court

also erred in granting summary judgment. See Trial Court Opinion, 5/8/2019,

at 18. Almost all of the subject statements were internal communications

between Heritage employees. They alluded to unsubstantiated claims that

the Meyers had “reprinted” covers or trimmed pages, leading to the decision

of Heritage to cease the auctioning of the Meyers’ work. Such communications

alone are not defamatory for lack of publication to a third party, as the Meyers

acknowledge. However, the Meyers identified evidence that the content of

those messages was somehow disclosed to third parties. Users on CGC’s

online message board and acquaintances of the Meyers apparently knew of

and referred to Heritage’s decision not to auction their work.

More specifically, James Lonergran Allen, a Heritage employee,

commented to a third-party dealer at a New York convention in 2016 that a

comic book restored by the Meyers was “fake.” See Response in Opposition

to Motion for Summary Judgment, at Exhibit “I,” at 41. Even though the

dealer convinced Allen that the work was properly restored, and Allen agreed

that Heritage would auction it, the statement was still published and

defamatory per se. See Restatement (Second) of Torts §570 (false

statements that have detrimental effect on “the plaintiff’s fitness to conduct

business” are defamation per se, making it unnecessary for plaintiffs to prove

special damages.). Moreover, the fact that Allen spoke of Heritage’s position

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to third parties supports the Meyers’ claim that the substance of the Heritage

emails was revealed to the public. In light of this evidence of publication to

third parties, the trial court erred in granting summary judgment on the count

of defamation as to Heritage.

D.

The orders of summary judgment as to the false light claim must also

be reversed. The tort is defined as follows:

One who gives publicity to a matter concerning another that

places the other before the public in a false light is subject to

liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be

highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard

as to the falsity of the publicized matter and the false light in which

the other would be placed.

Restatement (Second) of Torts, § 652E; Neish v. Beaver Newspapers, Inc.,

581 A.2d 619, 624 (Pa. Super. 1990) (“a publication is actionable if it is not

true, is highly offensive to a reasonable person and is publicized with

knowledge or in reckless disregard of its falsity”). “[U]nlike the law of

defamation . . . false light invasion of privacy offers redress not merely for the

publication of matters that are provably false, but also for those that, although

true, are selectively publicized in a manner creating a false impression.”

Krajewski v. Gusoff, 53 A.3d 793, 806 (Pa. Super. 2012).

Here, the trial court found that none of the statements made by Nelson

and Heritage employees to third parties was sufficiently publicized for the

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purposes of a false light claim. See Trial Court Opinion, 5/8/2019, at 18-19.

The trial court also ruled that the Meyers had “assumed the risk” of the

statements posted on CGC’s message board by entering the fray with their

own posts. Id.

As discussed above, the statements at issue here are potentially harmful

to the Meyers’ reputations and standing within their industry. The statements,

or the reasonable implications of the statements, have not been proven true.

Pennsylvania does not recognize “assumption of risk” as a defense to a false

light claim, and regardless, the case facts in no way suggest that the Meyers

ever invited a defamatory comment about themselves. Although statements

spoken to a third party may not constitute “publication” for the purposes of

the tort of false light, there is evidence in the record that those same

defamatory statements by CGC, CCS, Nelson and Heritage were publicly

disseminated on CGC’s message board and elsewhere. Thus, the trial court’s

orders of summary judgment as to the false light claims cannot stand.

Reversed in part, affirmed in part. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/19

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