PATEL v. PATEL
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ROBERT F. KELLY ON 11/4/2015. 11/4/2015 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT F. KELLY, Sr. J.
November 4, 2015
Presently before this Court is Defendant and Counter-Plaintiff, Pratik Patel’s (“CounterPlaintiff” or “Pratik” or “Pratik Patel”) Motion for Summary Judgment, Plaintiff and CounterDefendant, Alkesh Patel (“Counter-Defendant” or “Alkesh” “Alkesh Patel”) has failed to file any
response thereto. For the reasons set forth below, Counter-Plaintiff’s Motion is granted in part
and denied in part.
Counter-Defendant filed a Complaint for Assault and Battery against Counter-Plaintiff
regarding a physical altercation that took place at the Asian American Hotel Owners
Association’s Annual Convention and Trade Show held at the Philadelphia Convention Center
on March 22, 2014. 1 (See Compl.; Def.’s Am. Answer and Counterclaims.) Counter-Plaintiff
On May 23, 2014, the case was removed from the Court of Common Pleas, Philadelphia County, pursuant to 28
U.S.C. § 1332 based upon diversity jurisdiction. See 28 U.S.C. § 1332. Plaintiff is a citizen of Vancouver,
Washington, and Defendant is a citizen of San Antonio, Texas. (Not. of Removal at 2.) Plaintiff alleges that the
amount in controversy exceeds $75,000. (Id.) On May 26, 2015, Defendant filed a Motion to Dismiss pursuant to
filed an Amended Answer to Counter-Defendant’s Complaint with New Matter and
Counterclaims alleging Assault and Battery, Intentional Infliction of Emotional Distress,
Defamation, Trade Libel and Commercial Disparagement, False Light, and Conspiracy. 2 (See
Def.’s Am. Answer and Counterclaims.)
Counter-Plaintiff moves for summary judgment regarding his Counter-Claims based
upon the fact that each request in his Request for Admissions have been deemed admitted under
Federal Rule of Civil Procedure 36(a)(3). (See Mot. for Summ. J.) On June 17, 2015, we
granted “Counter-Plaintiff Pratik’s Motion to Deem Admitted all Averments Made in CounterPlaintiff’s Request for Admission Propounded on Alkesh Patel March 16, 2015,” which was
unopposed, setting forth that:
each request in Counter-Plaintiff Pratik Patel’s Request for Admissions is hereby deemed
admitted under Federal Rule of Civil Procedure 36(a)(3). See Fed. R. Civ. P. 36(a)(3)
(providing that ‘[a] matter is admitted unless, within 30 days after being served, the party
to whom the request is directed serves on the requesting party a written answer or
objection addressed to the matter and signed by the party or its attorney.’); see also Miles
v. Elliot, No. 94-4669, 2011 WL 857310, at *1 (E.D. Pa. Mar. 10, 2011) (‘If the party to
whom a request for admissions is directed fails to respond within thirty days of service of
the request, the matter is deemed admitted.’)
(Doc. No. 20.) In light of this Order, Counter-Plaintiff argues that all facts in the Request for
Admission are deemed admitted, and he is entitled to judgment as a matter of law. (See Mot. for
Summ. J.) Counter-Defendant has not filed a response to the Motion. For the following reasons,
the Motion for Summary Judgment is granted in part and denied in part.
Federal Rule of Civil Procedure 56(c) states that summary judgment is proper “if there is
no genuine issue as to any material fact and the moving party is entitled to judgment as a matter
Federal Rule of Civil Procedure 37(b). (Doc. No. 18.) On July 7, 2015, we granted the Motion dismissing
Plaintiff’s Complaint with prejudice. (Doc. Nos. 21-22.)
As of today’s date, Plaintiff has not filed a response to Defendant’s Counterclaims.
of law.” See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The Court asks
“whether the evidence presents a sufficient disagreement to require submission to the jury or
whether . . . one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the
basis for the motion and identifying those portions of the record that demonstrate the absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A fact is
material if it could affect the outcome of the suit after applying the substantive law. Further, a
dispute over a material fact must be ‘genuine,’ i.e., the evidence must be such ‘that a reasonable
jury could return a verdict in favor of the non-moving party.’” Compton v. Nat’l League of
Prof’l Baseball Clubs, 995 F. Supp. 554, 561 n.14 (E.D. Pa. 1998).
Summary judgment must be granted “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Once the moving party
has produced evidence in support of summary judgment, the non-moving party must go beyond
the allegations set forth in its pleadings and counter with evidence that presents “specific facts
showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Big Apple BMW, Inc.
v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992). “More than a mere scintilla of
evidence in its favor” must be presented by the non-moving party in order to overcome a
summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996).
If the court determines that there are no genuine issues of material fact, then summary judgment
will be granted. Celotex, 477 U.S. at 322.
A court may consider Rule 36 admissions when deciding whether parties agree to a fact
for purposes of summary judgment. See Fed. R. Civ. P. 36(b) (“A matter admitted under this
rule is conclusively established unless the court, on motion, permits the admission to be
withdrawn or amended.”); Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be
disputed must support the assertion by: (A) citing to particular parts of materials in the record,
including . . . admissions[.]”); Fed. R. Civ. P. 56(e) (“If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider
the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and
supporting materials - including the facts considered undisputed - show that the movant is
entitled to it; or (4) issue any other appropriate order.”).
In the Third Circuit, the United States Court of Appeals has “long recognized that
deemed admissions are sufficient to support orders of summary judgment.” 3 Kelvin
Cryosystems, Inc. v. Lightnin, 252 F. App’x 469, 472 (3d Cir. 2007). “Rule 36 admissions are
conclusive for purposes of the litigation” and they are accordingly “sufficient to support
summary judgment.” Langer v. Monarch Life Ins. Co., 966 F.2d 786, 803 (3d Cir. 1992). Here,
we have accepted all averments in Counter-Defendant’s Requests for Admissions to be true.
Consequently, we permit entry of summary judgment in favor of Counter-Plaintiff on the claims
where the facts admitted are dispositive.
The only way that a party may undo the conclusive effect of a Rule 36 admission is to move the Court to withdraw
or amend it. See Fed. R. Civ. P. 36(b) (“A matter admitted under this rule is conclusively established unless the
court, on motion, permits the admission to be withdrawn or amended.”). As of the filing of this Memorandum
Opinion, Counter-Defendant has neither responded to the Motion for Summary Judgment nor moved to withdraw or
amend any of the Rule 36 admissions.
A. Assault and Battery
Under Pennsylvania law, an individual commits the tort of battery when he or she
intentionally causes a “harmful or offensive” contact with another person’s body. 4 C.C.H. v.
Phila. Phillies, Inc., 940 A.2d 336, 340 n.4 (Pa. 2008). The tort of assault is committed when an
individual acts with the intent “to put another person in reasonable apprehension of an immediate
battery, and which succeeds in causing an apprehension of such battery.” Cucinotti v. Ortmann,
159 A.2d 216, 217 (Pa. 1960). Words alone, no matter how threatening, do not constitute an
assault; “the actor must be in a position to carry out the threat immediately, and he must take
some affirmative action to do so” for there to be a reasonable apprehension of fear. Id.
Relying upon certain admissions, Counter-Plaintiff sufficiently supports a finding that
Counter-Defendant committed the torts of assault and battery by strangling Counter-Plaintiff’s
neck. In Counter-Plaintiff’s Request for Admissions, Counter-Defendant was asked to admit that
he walked over to Counter-Plaintiff to have a discussion, which entailed him threatening to slap
Counter-Plaintiff, and then he attacked Counter-Plaintiff by putting both of his hands around
Counter-Plaintiff’s neck. (Ad. 10-14.) Additionally, Counter-Plaintiff asked Counter-Defendant
to admit that Counter-Plaintiff did not attack, touch or physically harm him before he chocked
Counter-Plaintiff. (Ad. 15.)
Threatening words alone are insufficient; however, the facts support a finding of assault
because the threat to slap Counter-Plaintiff was coupled with evidence of a prior disagreement,
Counter-Defendant being intoxicated, and Counter-Defendant being in close proximity to
Counter-Plaintiff giving him the ability to carry out the threatened battery. (Ad. 8-12) A claim
for battery is also supported by the facts because Counter-Defendant eventually struck Counter4
Pennsylvania law applies because federal courts sitting in diversity cases must apply the substantive law of the
states where they sit. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
Plaintiff in the face several times with his hands and choked him. (Ad. 13-14) Such
confrontation would be harmful and offensive to a reasonable person. Therefore, CounterPlaintiff is entitled to summary judgment regarding his Assault and Battery Counter-Claim.
B. Intentional Infliction of Emotional Distress
The Pennsylvania Supreme Court has yet to formally recognize a cause of action for
intentional infliction of emotional distress. Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650,
652 (Pa. 2000). The Pennsylvania appellate courts, however, have recognized the tort. Field v.
Phila. Elec. Co., 565 A.2d 1170, 1183–84 (Pa. Super. Ct. 1989). The United States Court of
Appeals for the Third Circuit (“Third Circuit’), predicting that the Pennsylvania Supreme Court
will ultimately recognize the tort, has also allowed recovery for intentional infliction of
emotional distress. Williams v. Guzzardi, 875 F.2d 46 (3d Cir. 1989). Therefore, this Court is
bound to conclude that Pennsylvania permits recovery for intentional infliction of emotional
In Pennsylvania, the Restatement (Second) of Torts sets forth the minimum elements
necessary to sustain a cause of action for intentional infliction of emotional distress. Taylor, 754
A.2d at 652. In order to recover, a plaintiff must plead and prove that (1) by extreme and
outrageous conduct (2) defendant intentionally or recklessly (3) caused (4) severe emotional
distress. Id. (citing Restatement (Second) of Torts § 46 (1965)). “It is for the court to determine
in the first instance whether the defendant’s conduct may reasonably be regarded as so extreme
and outrageous [as] to permit recovery.” Bock v. CVS Pharmacy, Inc., No. 07 412, 2008 WL
3834266, at *2 (E.D. Pa. Aug. 14, 2008) (quoting Johnson v. Caparelli, 625 A.2d 668, 671 (Pa.
Super. Ct. 1993), appeal denied, 647 A.2d 511 (Pa. 1994)). Pennsylvania courts further require
that the existence of emotional distress be supported by competent medical evidence. Kazatsky
v. King David Mem’l Park, Inc., 527 A.2d 988, 995 (Pa. 1987).
Counter-Plaintiff asked Counter-Defendant to admit that he intended to cause CounterPlaintiff to be emotionally distressed by his physical assault and defamation of Counter-Plaintiff.
(Ad. 27.) This Request for Admission has been deemed admitted, and established that CounterDefendant intentionally caused Counter-Plaintiff to be emotionally distressed.
Even though Counter-Plaintiff’s actions were intentional, there are serious doubts
whether these actions rise to the high level of extreme and outrageous conduct that Pennsylvania
courts have recognized in the past. See Hoy v. Angelone, 720 A.2d 745, 755 (Pa. 1998) (citing
Papieves v. Lawrence, 263 A.2d 118, 119 (Pa. 1970) (holding defendant’s conduct of killing the
plaintiff’s son in a hit and run accident and burying the boy in a field did rise to the level of
extreme and outrageous); Banyas v. Lower Bucks Hosp., 437 A.2d 1236, 1237-1238 (Pa. Super.
Ct. 1981) (holding defendants conduct of falsifying medical records in order to implicate
plaintiff in the death of a patient, leading to plaintiff’s indictment for homicide rose to the level
of extreme and outrageous); Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1269-70 (3d
Cir. 1979) (holding defendant’s team physician’s conduct of falsely informing the media that the
plaintiff suffered from a fatal disease was extreme and outrageous).
Ultimately, this Court does not need to decide whether Counter-Defendant’s conduct was
extreme and outrageous at this time because, even assuming the conduct met this standard, the
Counter-Claim will still fail. Counter-Plaintiff’s emotional distress needs to be supported by
competent medical evidence, which has not been proven or even provided in this matter.
Competent expert medical evidence confirming the existence, cause, and severity of the distress
is required in order for Counter-Plaintiff to recover on this Counter-Claim. See Williams, 875
F.2d at 5152. As such, summary judgment is inappropriate for the Counter-Claim of Intentional
Infliction of Emotional Distress.
C. Defamation (Slander and Slander Per Se/ Libel and Libel Per Se)
Defamation, of which libel and slander are methods, is the tort of detracting from a
person’s reputation, or injuring a person’s character by false and malicious statements. Zartman
v. Lehigh Cnty. Humane Soc’y, 482 A.2d 266, 268 (Pa. Super. Ct. 1984). “Under Pennsylvania
law, in an action for defamation, the plaintiff has the burden of proving seven elements: (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, (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.” Banka v. Columbia Broad. Co., 63 F. Supp. 3d 501, 506 -07 (E.D. Pa. 2014) (citing
42 Pa. Cons. Stat. § 8343(a)); see also Tucker v. Fischbein, 237 F.3d 275 (3d Cir. 2001).
It is the court who decides whether the statements are in fact capable of a defamatory
meaning. Corabi v. Curtis Publ. Co., 273 A.2d 899 (1971). “In Pennsylvania, a defamatory
statement is one that ‘tends to so harm the reputation of another as to lower him in the estimation
of the community or to deter third persons from associating or dealing with him.’” Resnick v.
Manfredy, 52 F. Supp. 2d 462, 470 (E.D. Pa. 1999) (quoting U.S. Healthcare, Inc. v. Blue Cross
of Greater Phila., 898 F.2d 914, 922 (3d Cir. 1990)).
Once the courts determine that the statements are capable of having a defamatory
meaning, the plaintiff must then prove, amongst other requirements, that he or she suffered a
special harm. 42 Pa. Cons. Stat. Ann. § 8343(a)(6). The term “special harm” is defined as
“actual damages which are economic or pecuniary losses.” Sprague v. Am. Bar Ass’n, 276 F.
Supp. 2d 365, 368–69 (E.D. Pa. 2003) (quoting Restatement (Second) of Torts, § 575, cmt. b
However, the Pennsylvania courts have adopted an exception to the requirement for
special damages when the statement made constitutes defamation per se. Synygy, Inc. v. ScottLevin, Inc., 51 F. Supp. 2d 570, 581 (E.D. Pa. 1999); Brinich v. Jencka, 757 A.2d 388, 397 (Pa.
Super. Ct. 2000); see also Pennoyer v. Marriott Hotel Servs., Inc., 324 F. Supp. 2d 614, 619
(E.D. Pa. 2004) (“The Restatement (Second) of Torts requires a victim of slander per se to make
some showing of general damages.”). There are four categories of words that constitute
defamation per se: words that impute (1) criminal offense, (2) loathsome disease, (3) business
misconduct, or (4) serious sexual misconduct. Clemente v. Espinosa, 749 F. Supp. 672, 677
(E.D. Pa. 1990) (citing Restatement (Second) of Torts § 570 (1977)).
Counter-Plaintiff only addresses facts regarding defamation per se relating to business
misconduct, so we will limit our analysis to that category. A statement is considered defamation
per se relating to business misconduct when the “speaker imputes to another conduct,
characteristics, or a condition that would adversely affect [him in his] lawful business or trade.”
Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 237, 241 (Pa. Super. Ct. 1993). The statement
must be “peculiarly harmful to one engaged in [that] business or profession. Disparagement of a
general character, equally discreditable to all persons, is not enough.” Clemente, 749 F. Supp. at
678 (quoting Restatement (Second) of Torts, Comment e (1977)). Defamation per se would
also be allowed if “the particular quality disparaged . . . is peculiarly valuable in the plaintiff’s
business or profession.” Id.
At common law, damages were presumed if the action was based on defamation per se.
Restatement (Second) of Torts § 621. Pennsylvania courts have come to varying conclusions
regarding the issues of damages. The Pennsylvania Superior Court case of Walker appeared to
eliminate the idea of presumed damages when it concluded that Section 621 of the Restatement
(Second) of Torts accurately states the law of Pennsylvania regarding the requirement of general
damages i.e. proof that one’s reputation was actually affected by defamation or that one suffered
personal humiliation. Walker, 634 A.2d at 244 (citing Restatement (Second) of Torts § 621).
This requirement of proof allows the court to have some type of control of the amount of
damages awarded by a jury since it allows the juror a basis for accessing harm. Synygy, 51 F.
Supp. 2d at 581.
However, more recent cases have permitted presumed damages in cases where actual
malice was present. The Third Circuit stated that “[a]lthough Walker appears generally to
foreclose presumed damages under Pennsylvania law, it is not entirely clear whether presumed
damages remain available where the plaintiff proves actual malice.” Franklin Prescriptions, Inc.
v. New York Times Co., 424 F.3d 336, 342 (3d Cir. 2005). Notably, a very recent Pennsylvania
Superior Court concluded that “presumed damages do indeed remain available upon a showing
of actual malice.” Joseph v. Scranton Times, L.P., 89 A.3d 251, 272 (Pa. Super. Ct. 2014).
Actual malice is when a statement is made “with knowledge that [the statement] was false or
with reckless disregard of whether it was false or not.” Id. at 261 (quoting Lewis v. Phila.
Newspapers, Inc., 833 A.2d 185, 191 (Pa. Super. Ct. 2003)). Therefore, this Court is bound to
conclude that Pennsylvania permits presumed damages in defamation per se claims when actual
malice is pleaded and proven.
Here, by having the Requests for Admissions deemed admitted, Counter-Defendant has
admitted that he stated to AAHOA members and third parties that Counter-Plaintiff was the
initial aggressor of the incident. (Ad. 18, 20) Additionally, Counter-Defendant admitted he
made slanderous statements regarding Counter-Plaintiff to AAHOA members. (Ad. 19)
Counter-Defendant also admitted he knowingly made the following false statement:
Pratik Patel as a convention chair did not get proper approval of funds from board.
Entertainment contract was awarded to Arya International without following proper RFP
process. $50,000 extra was given to the entertainment group beforehand and payments
were done based on extra amount without doing due diligence on signing the contract and
having legal review it in detail.
Furthermore, Counter-Defendant admitted he authored a document with the following
statements that he also knew to be false:
Pratik is a puppet for Mowji and Tauren Patel; Pratik stole volleyball tourney funds, and
spent and his . . . unaccounted convention funds hoodwinked aahoa Board . . .; At last
convention as to the sham the officers ran, especially . . . Pratik assaulted and punched
Alkesh 5-6 times with . . . of gala nite [sic] to repay Alkesh for instigating a [sic] audit
and . . . of Pratiks [sic] abuse and theft; This is a violation of ethics, especially by the new
AAHOA . . . damaged 25 years of hard work done to bring this association . . . respect;
Pratik is a thug, he has a criminal record arrested twice . . . weapons and drugs, heave
funds paid by his family to.
(Ad. 23-24). Counter-Defendant also admitted that the statements he made were slanderous,
libelous, and premeditated to defame Counter-Plaintiff’s personal and business reputation as
Chairman of AAHOA. (Ad. 25-26).
Since Counter-Plaintiff has not alleged any special harm relating to the alleged
defamation, he cannot rely on a traditional defamation argument since proof of special harm is
required. 42 Pa. Cons. Stat. Ann. § 8343(a)(6). Thus, we turn to Counter-Plaintiff’s defamation
per se argument. As a threshold matter, I do believe the statements made by Counter-Defendant
could be considered defamation per se. The statements would adversely affect Counter-Plaintiff
in his position as Chairmen of AAHOA. In addition, they are “peculiarly harmful” to him in that
position and not equally discreditable to all persons. Clemente, 749 F. Supp. at 678. The most
disparaging statements were those stating that Counter-Plaintiff “stole volleyball funds,” and
how he “is a thug . . . arrested twice . . . weapons and drugs.” (Doc. No. 23-2, p. 18.) Through
the Request for Admissions, these statements all been deemed to have been said by CounterDefendant. (Doc. Nos. 19, 20.) As chairman of an organization, the qualities of honesty,
loyalty, and integrity are especially important. The statements made by Counter-Plaintiff attack
these attributes by essentially calling him a thief, criminal, and someone who cannot be trusted.
Therefore, defamation per se is met in this case.
Even concluding that Counter-Defendant’s statements constitute defamation per se, the
issue of damages remains. General damages have not been proven or even pleaded in this case.
Counter-Plaintiff simply states that he “relies on his good name and reputation . . . [CounterDefendant] has ascribed to Pratik misconduct and characteristics that would render Pratik unfit
for the proper conduct of the business as Chairman of AAHOA or his investor will no longer
invest in his company.” (Doc. No. 23-2, p. 19.) These are simply general statements that are not
supported by any facts or evidence. Counter-Plaintiff has not presented any testimony or
evidence from AAHOA’s representatives that their opinions regarding Counter-Plaintiff’s ability
to perform his job were affected by Counter-Defendant’s statements. Moreover, no evidence has
been provided showing that Counter-Plaintiff’s name or reputation was actually damaged by the
However, as discussed above, Pennsylvania courts have allowed presumed damages in
cases of defamation per se where actual malice is present. Scranton Times, 89 A.3d at 272.
Here, Counter-Plaintiff has established actual malice by relying on certain admissions. In
Counter-Plaintiff’s Request for Admissions, Counter-Defendant was asked to admit that he knew
the statements he made were false. (Ad. 22, 24). Counter-Defendant was also asked to admit
that he made these statements in an attempt to destroy the Counter-Plaintiff’s personal and
business reputation. (Ad. 25). Given these admissions, as well as the other evidence submitted
by Counter-Plaintiff, actual malice has been proven since Counter-Defendant made these
statements with knowledge of their falsity. Thus, since general damages need not be proven as
presumed damages are allowed under current Pennsylvania law when actual malice is proven,
Counter-Plaintiff is entitled to summary judgment regarding his Defamation Counter-Claim.
Under Pennsylvania law, to establish a prima facie case of civil conspiracy, a plaintiff
must plead and prove: (1) a combination of two or more persons acting with a common purpose
to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an
overt act in furtherance of the conspiracy; and (3) actual legal damages. Goldstein v. Phillip
Morris, Inc., 854 A.2d 585, 590 (Pa. Super. Ct. 2004); Thompson Coal Co. v. Pike Coal Co., 412
A.2d 466, 472 (Pa. 1979) (stating that the unlawful intent must be without justification).
Here, Counter-Plaintiff’s Counter-Claim must be denied because he has not pleaded, or
shown, that two or more people acted with a common purpose. See Caplan v. Fellheimer
Eichen Braverman & Kaskey, 884 F. Supp. 181, 184 (E.D. Pa. 1995) (dismissing Pennsylvania
civil conspiracy claim because, inter alia, only one alleged conspirator remained in the action).
He only alleges one conspirator, Counter-Defendant, which does not meet the legal definition of
a conspiracy. Id. Therefore, summary judgment regarding the Conspiracy Counter-Claim is
E. False Light
In Count V, Counter-Plaintiff makes a Counter-Claim for False Light. “In Pennsylvania
there can be four separate torts when there has been an invasion of privacy, one of which, [is]
publicity placing a person in a false light.” Graboff v. Colleran Firm, 744 F.3d 128, 136-37 (3d
Cir. 2014) (citing Marks v. Bell Tel. Co., 331 A.2d 424, 430 (Pa. 1975)). “Pennsylvania has
adopted the definition of false light invasion of privacy from the Restatement (Second) of Torts,
which imposes liability on a person who publishes material that ‘is not true, is highly offensive
to a reasonable person, and is publicized with knowledge or in reckless disregard of its falsity.’”
Id. (quoting Larsen v. Phila. Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. 1988) (en banc) (citing
Restatement (Second) of Torts § 652E). Under Pennsylvania law, one is subject to liability for
the tort of false light 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.” Lin v. Rohm and Haas Co., 293 F. Supp. 2d 505, 521–22 (E.D. Pa. 2003) (citing Curran
v. Children’s Serv. Ctr., 578 A.2d 8, 12 (Pa. Super. Ct. 1990) (quoting Restatement (Second) of
Torts § 652E)). False light is not limited to the disclosure of private facts as courts applying
Pennsylvania law have found “[i]t is enough [for the plaintiff] that the defendant has given
publicity to any matter concerning the plaintiff that creates a ‘highly offensive’ false impression
about the plaintiff.” Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1087–88 (E.D. Pa. 1980).
As explained above in Section C, Counter-Defendant, through the Requests for
Admissions being deemed admitted, has admitted that he knowingly made false statements about
Counter-Plaintiff. Even though Counter-Defendant knowingly made these false statements,
summary judgment for the False Light Counter-Claim is inappropriate at this time. The issue of
whether a statement would be highly offensive to a reasonable person is a question of fact. See
Harris by Harris v. Easton Publ’g Co., 483 A.2d 1377, 1387 (Pa. Super. Ct. 1984) (determination
of whether an issue is highly offensive is a question of fact precluding summary judgment);
Martin v. Mun. Publ’ns, 510 F. Supp. 255, 259 (E.D. Pa. 1981) (denying summary judgment and
finding under Pennsylvania law that “the question of whether a message would be highly
offensive to a reasonable person is a matter for the jury”). Counter-Plaintiff completely fails to
address this element of his False Light Counter-Claim. Counter-Plaintiff neither sets forth any
facts indicating that these statements should be considered highly offensive to a reasonable
person, nor does he even simply state this element of his claim has been met. Thus, a genuine
issue of material fact exists with respect to the issue of whether a reasonable person would find
the statements and/or the implications of the statements to be highly offensive; therefore,
summary judgment is denied.
F. Trade Libel – Commercial Disparagement
In Count IV, Counter-Plaintiff alleges Trade Libel and Commercial Disparagement. In
Pennsylvania, a claim for trade libel, also called “commercial disparagement,” requires proof
that: 1) the statement is false; 2) the publisher either intends the publication to cause pecuniary
loss or reasonably should recognize that publication will result in pecuniary loss; 3) pecuniary
loss does in fact result; and 4) the publisher either knows that the statement is false or acts in
reckless disregard of its truth or falsity.” McNulty v. Citadel Broad. Co., 58 F. App’x 556, 56667 (3d Cir. 2003) (citing Neurotron Inc. v. Med. Serv. Assoc. of Pa., Inc., 254 F.3d 444 (3d Cir.
2001)). The main difference between an action for defamation and an action for trade libel is its
consequence. Defamation results in damage to one’s interest in character and reputation while
trade libel negatively affects a person’s business or marketability. Zerpol Corp. v. DMP Corp.,
561 F. Supp. 404, 408 (E.D. Pa. 1983).
Summary judgment is inappropriate on this Counter-Claim because Counter-Plaintiff has
not sufficiently pleaded any pecuniary loss arising from the pertinent statements deemed
admitted by Counter-Defendant. McNulty., 58 F. App’x at 567. Counter-Plaintiff simply makes
a general statement that he “has suffered huge personal and business losses” due to CounterDefendant’s conduct. (Mot. for Summ. J. at 23-2, p. 26.) This is conclusory and does not meet
the standards required under Pennsylvania law. See Testing Sys., Inc. v. Magnaflux Corp., 251
F. Supp. 286, 290 (E.D. Pa. 1966) (holding that Pennsylvania courts require a plaintiff claiming
commercial disparagement to plead damages with considerable specificity); Zerpol., 561 F.Supp.
at 409 (holding that the plaintiff “must in his complaint set out the names of his lost customers
and show by figures how much he has lost financially”). Therefore, we deny Counter-Plaintiff’s
request for summary judgment pertaining to his Trade Libel Counter-Claim.
For the above mentioned reasons, we conclude that Counter-Plaintiff’s Motion for
Summary Judgment is granted in part and denied in part. The Motion is granted with respect to
the claims of Assault and Battery and Defamation. The Motion is denied with respect to the
claims of Intentional Infliction of Emotional Distress, Conspiracy, False Light, and Trade Libel.
An appropriate Order follows.
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