In Fox v. Smith, No. 1438, February term 2018 (C.P. Philadelphia, Aug. 30), Judge Arnold L. New held that, under current caselaw, a cause of action for defamation, false light and conspiracy could have proper venue in Philadelphia County because: the plaintiff, a Democrat, was running for mayor in Chester Heights, Delaware County, in the November 2017 election; defendants included her opponent (who won) and several individuals and two Republican groups, the Republican Committee of Chester Heights and the Committee for the Future of Chester Heights; and, the defamatory statements were promulgated by the defendants creating a website where the statements resided and promulgated the website by delivering fliers in Chester Heights and by erecting billboards there advertising it, a friend of the plaintiff residing in Philadelphia County could have read in Philadelphia County the putative defamatory statements promulgated on the internet. The court reasoned that, under prior, controlling caselaw, venue for a defamation claim can arise in a county where a defamatory statement is minimally circulated and recognized by one person to be defamatory even if that county is by no means the location where the statement was made or intended to be circulated and circulation in one or more other counties is considerably greater and the place or places the statement was intended to be circulated. The Court found the controlling precedent which dictated his holding to be hopelessly out-of-date in our world of information technology, but recognized that its role as a trial court was to apply, and not rewrite, existing law, and so found venue in Philadelphia County proper and requested the appellate courts to revisit the issue as it applies to “the internet, social media and the technology of the modern era.”

The court is to be lauded both in its criticism of existing precedent and in its recognition of its role in inviting the appellate courts to rewrite that precedent rather than doing so itself. In the first part of this column, I shall discuss why the court is right on both counts.

Background

Plaintiff Joy Michelle Fox ran as the Democratic party's candidate for mayor of Chester Heights, Delaware County, Pennsylvania, against Republican Stacey Smith in the November 2017 general election. Defendant Smith defeated the plaintiff in the general election. Defendants Drew J. Baum, Ginamarie Ellis, Theresa Agostinelli, Steve Cocozza, Ellen Luongo, Steven Luongo, Maryann D. Furlong, Richard B. Kerns, William Pascale, Steve Cocozza, the Republican Committee of Chester Heights, and the Committee for the Future of Chester Heights,  Republicans and Republican committees, supported defendant Smith's election efforts and opposed the plaintiff's candidacy.

As part of their active opposition, the defendants created a website, www.chfactcheck.com, and a campaign flier. “The defendants promoted the website using social media and by erecting billboards in Chester Heights advertising it. The campaign fliers were mailed to Chester Heights residents. Both the website and the flier contained defamatory information, to wit, that the state of North Carolina criminally charged the plaintiff with passing worthless checks.

The complaint alleged the defendants “cherry-picked” information obtained from three background-search websites to “verify” the accuracy of their claims. Specifically, the complaint alleged that the defendants relied on search results indicating “Joyce Watkins” had been charged in North Carolina with passing worthless checks. Although the plaintiff's maiden name is Watkins, her first name, per her birth certificate, is Joy, not Joyce. The complaint further alleged that the plaintiff informed the defendants of the falsity of their claims on multiple occasions, but the defendants refused to take down the website or otherwise remove the defamatory information.

The Cause of Action

The plaintiff commenced action on Feb. 15, 2018, by filing a complaint in Philadelphia County, claiming defamation, false light and civil conspiracy. Defendants William Pascale, Drew Baum and Theresa Agostinelli filed preliminary objections arguing improper venue.

Defendant Stacey Smith also filed a preliminary objection in which she averred venue was improper in Philadelphia. Defendants Ellen Luongo, Steven Luongo, Republican Committee of Chester Heights and Committee for the Future of Chester Heights filed preliminary objections in which they made a similar objection. The plaintiff's response averred venue was proper in Philadelphia County because her cause of action arose in Philadelphia County since: the campaign fliers were processed at the U.S. Post Office's bulk mail processing facility on Lindbergh Boulevard in southwest Philadelphia, and so it was reasonable to believe the workers at the facility saw the defamatory information, and the defamatory information contained on the website was accessible to Philadelphia residents, including the plaintiff's friend, Kellie Clark.

The court heard oral argument on the issue of improper venue on June 13. By order dated June 15, 2018, this court overruled the preliminary objections to improper venue and found that a substantial issue of venue existed under Pa.R.A.P. 311(b)(2). Defendants Pascale, Baum, Agostinelli, Smith, EllenLuongo, Steven Luongo, Republican Committee of Chester Heights, and Committee for the Future of Chester Heights filed notices of appeal.

Venue

The court noted that Pennsylvania Rule of Civil Procedure 1028(a)(1) provided that improper venue must be challenged by preliminary objection. As the moving party, the defendant bore the burden of proving improper venue, citing Zampana-Barry v. Donaghue, 921 A.2d 500,503 (Pa. Super. 2007). The court further noted that, with respect to suits against an individual, Rule 1006(a)(1) made clear that the individual could be served only in a county in which “the cause of action arose,” “where a transaction or occurrence took place out of which the cause of action arose,” or “in any other county authorized by law.” When a plaintiff sought “to enforce liability against joint tortfeasors,” the action could “be brought against all defendants 'in any county in which the venue may be laid against any one of the defendants,' per Rule 1006(c)(l). In the case sub judice.

The plaintiff argued venue was proper in Philadelphia County because her cause of action arose in Philadelphia County. The court explained that in “a defamation claim, the cause of action arises in the place where the defamatory statement is published,” citing to the Pennsylvania Supreme Court's decision in Gaetano v. Sharon Herald, 231 A.2d 753, 755 (Pa. 1967), which held that publication occurred in the county in which the defamatory statement is read and understood as being defamatory of the plaintiff. The court quoted the Supreme Court's example that if “a newspaper is published and circulated in New York City which includes a defamatory statement of a person in Scranton, Pennsylvania, but no one in New York City recognizes the article as applying to the individual defamed, or if there is such recognition of identity but no realization that the article is defamatory of the person in Scranton, then there is no publication in New York City. However, if a few copies of this newspaper published in New York City are sent to Scranton and there read by the Scranton resident's neighbors or associates who recognize the reference to him and reasonably believe that it is defamatory,  then the newspaper has libeled him in Scranton, and not in New York City,” even though the newspaper was printed and primarily circulated in New York City.

The court rejected the plaintiff's first argument that “her cause of action arose in Philadelphia when workers at the U.S. Post Office bulk mail facility in Southwest Philadelphia read the defamatory information contained on the campaign fliers as those workers processed the mail.” The court noted that the complaint contained “no allegations the workers at the bulk mail processing facility either recognized the references to the plaintiff, a political candidate in Delaware County, or understood the defamatory nature of the statements.” The court noted that the Supreme Court in Gaetano observed that “no cause of action” arose “in Philadelphia when postal workers read a defamatory statement but there is no allegation the postal workers knew the plaintiff or recognized the defamatory nature of the statement” at issue.

The court, however, accepted the plaintiff's second argument that “her cause of action for defamation arose in Philadelphia because the social media posts and website containing defamatory information were accessible to Philadelphia residents, including her friend Kellie Clark. The court reasoned that while it was it was unlikely that the postal workers in the first argument recognized the defamatory nature of the statement, it was “reasonable to infer” that plaintiff's friend did so.

In part 2, I'll discuss how the court interpreted venue in cases arising out of defamation on the internet.

Leonard Deutchman is a consultant regarding electronic discovery, digital forensics, and criminal and civil legal matters. Before that, he was vice president, legal for KLDiscovery, which he helped found, and a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cybercrime, fraud, drug trafficking and other offenses. Contact him at [email protected].