author: KELLY, Judge:

text:
    547 A.2d 778
    Richard J. DOUGHERTY, D.C., Appellant, v. The BOYERTOWN TIMES, a/k/a The Times of the Boyertown Area and Berks-Mont Newspapers, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued April 20, 1988.
    Filed Sept. 14, 1988.

      Audrey L. Jacobsen, Norristown, for appellant.
    Arthur R. Tilson, Ambler, for Berks-Mont, appellees.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

This is an appeal from an order in the Court of Common Pleas of Montgomery County denying the post-trial motions of plaintiff/appellant, Richard J. Dougherty, D.C. (hereinafter “Dougherty”) and affirming the trial court’s grant of defendant/appellee, The Boyertown Times, a/k/a The Times of the Boyertown Area and Berks-Mont Newspapers, Inc.’s (hereinafter “newspaper”) motion for compulsory non-suit. We reverse and remand the case for a new trial.

FACTS AND PROCEDURAL HISTORY

Dougherty is a doctor of chiropractic medicine. In 1976, Dougherty and his wife Barbara purchased a property in rural Pennsylvania, near Boyertown and Gilbertsville, where he intended to establish a private chiropractic practice. The property was converted to a home for the Doughertys and a chiropractic office, which opened in late 1977. George Gumbrell became one of Dougherty’s patients and made approximately ten visits to Dougherty in April and May of 1981. On July 2, 1981, Mrs. Gumbrell sent a letter to Donald L. Webb, the editor of the newspaper, expressing complaints concerning her husband’s experience with Dougherty. Webb contacted Mrs. Gumbrell to discuss the letter with her. He suggested that she rewrite the letter, omitting certain portions which he felt were improper. The following letter was submitted by Mrs. Gumbrell and subsequently published in the July 23,1981 edition of the newspaper, a paper with a Boyertown/Gilbertsville circulation, in the Letters to the Editor section, entitled “Patient complains about fees”:

To the editor:

I am writing this letter to tell you and the people of the area about our experience with Dr. Richard Dougherty, Chiropractor, whose home and office are located at Middle Creek Road and Route 73, Gilbertsville. It is my hope that others will profit by our experience.

On Wednesday, April 29, 1981, we received a call from Dr. Dougherty’s secretary, Wanda, asking us to make an appointment because one of their patients had told them that my husband had a back problem. The doctor encourages his patients to recruit others. Since my husband was feeling bad, we agreed and saw the doctor that afternoon. When we asked what the charges would be, Wanda said $15 per visit. She also asked if we had insurance and when we told her the insurance would pay $7 per visit, she told us to pay $8 per visit, which we did. My husband went to Dr. Dougherty a total of 10 times from April 29 to May 22. During that time he became worse and had to go to another doctor for treatment. On Juné 26, we received a statement from the insurance company that Dr. Dougherty had billed them for $198 and they had paid him $118. Since we had already paid him $80 and the insurance paid him $118. That’s $198. However, 10 visits at $15 a visit equals $150, a difference of $48. When I called about the extra charges, Wanda said that the first visit is always $30 (she never mentioned that before) and the second visit was $23 because the doctor went over the X-rays with us and that was considered an extended visit. When I pointed out that we were still being overcharged by $25, she said she would have to talk to the doctor. When I called today, July 1, she told me the extra $25 was for analyzing the X-rays and no money would be refunded to us.

Now I ask you, have you ever heard of a chiropractor who charges $30 for the first visit, $23 for an extended visit because he looked at X-rays, and $25 for analyzing those same X-rays? We were told that the charges would be $15 per visit. No other charges were ever mentioned until the insurance company overpaid the bill.

I would like to warn others to beware of extra charges and treatments which, at least for us, were ineffective and possibly harmful.

Sincerely,

Name Withheld.

The first paragraph of Mrs. Gumbrell’s first letter to Webb originally stated the following:

I am writing this letter at the suggestion of [a named third party] to tell you and the people of the area about our experience with Dr. Richard Dougherty, Chiropractor, whose home and office are located at Middle Creek Road and Rt. 73, Gilbertsville, Pa. It is my hope that others will profit by our experience and avoid being cheated as we have been.

(Exhibit B of Appellee’s Brief). The phrase “at the suggestion of [a named third party]” was deleted at Webb’s suggestion. He felt the matter was between Mrs. Gumbrell and Dougherty and it would be inappropriate to involve a third party. (N.T. 12/8/86 at 47). Mrs. Gumbrell also omitted “cheated” at Webb’s suggestion. The last paragraph of Mrs. Gumbrell’s first letter to Webb contained the following sentence. “All these charges are bad enough, but to deliberately mislead us is inexcusable and unethical to say the least.” (Exhibit B of Appellee’s Brief). Mrs. Gumbrell removed this sentence at Webb’s suggestion. Finally, Mrs. Gumbrell substituted “my husband” for “George” in the second letter; thus rendering the letter anonymous in form and content. Other than these changes, the second letter which was published was the same as the first letter.

Prior to its publication, Webb had sent a copy of the letter to Dougherty, with Mrs. Gumbrell’s name deleted. Webb asked Dougherty to consider responding to the letter. When Webb received no reply from Dougherty, he contacted him by phone, again requesting a written response. Dougherty declined. Neither Webb nor Dougherty specifically identified the Gumbrells as the complaining patient. After discussing the letter personally with Dougherty, Webb published the letter.

On June 2, 1982, Dougherty filed a complaint against appellee seeking compensatory and punitive damages. The complaint alleged that the letter was defamatory and that as a result of its publication, Dougherty had suffered, among other damages, a decline in his chiropractic practice.

At pre-trial conference, Dougherty isolated for the court the specific aspects of the letter which were alleged to be defamatory:

a. “My husband went to Dr. Dougherty a total of ten times from April 29 to May 22. During that time he became worse and had to go to another doctor for treatment.”
b. The extensive discussion during the course of the letter with reference to the various charges made by the plaintiff for his services.
c. “I would like to warn others to beware of extra charges and treatments which, at least for us, were ineffective and possibly harmful.”

The case was tried before a jury on December 5, 8, 9 and 10, 1986. At the conclusion of Dougherty’s case, the trial court entered a compulsory non-suit pursuant to the newspaper’s motion.

Dougherty filed post-trial motions seeking removal of the non-suit and a new trial. Following oral argument and consideration of the parties’ briefs, the trial court denied Dougherty’s post-trial motions in an order dated May 7, 1987. Dougherty filed a timely appeal to this Court. Dougherty has raised four issues for consideration on appeal:

Did the lower court err by granting a compulsory non-suit after determining that the published letter was capable of a defamatory interpretation by the jury?
Did the lower court err by determining that certain statements in the published letter were opinions based upon disclosed facts?
Did the lower court err by ruling that the subject matter of the letter was a matter of public concern and by imposing the burden of proving falsity upon the plaintiff? Did the lower court err by itself finding that the evidence did not establish the negligence of defendant under the facts and circumstances of this case?

I.

The standard of review in an appeal of an order granting a compulsory non-suit is well-settled:

... [Pjlaintiff must be given the benefit of every fact and reasonable inference arising from the evidence. All con- ' flicts in the testimony must be resolved in plaintiffs favor and the entry of the compulsory nonsuit is only supportable in a clear case where the facts and circumstances have as the only conclusion the absence of liability-

Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 595, 437 A.2d 1198, 1200 (1981) (citations omitted). “When a compulsory nonsuit is entered, lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement.” Scott v. Purcell, 490 Pa. 109, 112-113, 415 A.2d 56, 58 (1980) citing McAuliffe v. Constantine, 228 Pa.Super. 52, 54, 323 A.2d 158, 159 (1974). “A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion.” Speicher v. Reda, 290 Pa.Super. 168, 171, 434 A.2d 183, 185 (1981) citing Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 135, 359 A.2d 822, 825 (1976) citing Paul v. Hess Bros., 226 Pa.Super. 92, 94-95, 312 A.2d 65, 66 (1973) (citations omitted); Fisher v. Findlay, 319 Pa.Super. 214, 465 A.2d 1306 (1983). “It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.” Speicher, supra, 290 Pa.Superior Ct. at 171, 434 A.2d at 185 citing Cornell, supra, 241 Pa.Superior Ct. at 135, 359 A.2d at 825. Guided by this standard, we turn to the issues Dougherty has raised on appeal.

Before addressing the merits of the specific issues raised in the instant appeal, we note the following general principles which apply in defamation cases of this nature. Pursuant to 42 Pa.C.S.A. § 8343(a), in a defamation action a 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;
(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;
(7) abuse of a conditionally privileged occasion.

In Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984), this Court held that: “a plaintiff in libel in Pennsylvania need not prove special damages or harm in order to recover; he may recover for any injury done his reputation and for any other injury of which the libel is the legal cause.” 334 Pa.Superior Ct. at 328, 483 A.2d at 474. Pennsylvania has adopted the rule of Restatement (Second) of Torts, § 569 (1977), that all libels are actionable without proof of special harm. Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 546 A.2d 639 (1988).

A private figure plaintiff cannot recover damages without some showing that the media defendant was at fault in publishing the challenged statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Where a newspaper publishes speech of public concern, a private figure plaintiff cannot recover damages without also showing that the challenged statements are false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). We shall now address the particular issues raised by Dougherty on appeal.

II.

The first issue raised by Dougherty addresses the determination by the trial court that the published letter was capable of a defamatory interpretation by the jury. In an action for defamation it is the court’s duty to make the initial determination if the challenged statements are capable of a defamatory meaning. Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982); Corabi v. Curtis Publishing Company, 441 Pa. 432, 273 A.2d 899 (1971); Agriss, supra; Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6 (1982).

The test is the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same significance that other people are likely to attribute to them.

Corabi, supra, 273 A.2d at 907, quoting Boyer v. Pitt. Publishing Co., 324 Pa. 154, 157, 188 A. 203, 204 (1936); Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. 253, 489 A.2d 1364 (1985); Agriss, supra, 334 Pa.Superior Ct. at 306, 483 A.2d at 461-462. The nature of the audience is a critical factor in determining whether a statement is capable of defamatory meaning. “Even where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, the issue must proceed to the jury.” Gordon, supra, 489 A.2d at 1368, quoting Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981) and Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980). However, the fact that the challenged statements may annoy or embarrass a person is not sufficient as a matter of law to create an action in defamation. Gordon, supra; Agriss, supra; Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980). Injury to reputation is judged by the reaction of other persons in the community and not by the party’s self-estimation. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). Specifically, a communication is defamatory if it “ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his lawful business, trade or profession.” Baker v. Lafayette College, 350 Pa.Super. 68, 76, 504 A.2d 247, 251 (1986) quoting Thomas Merton Center, supra, 422 A.2d at 216.

The trial court, in the instant case, initially found that the letter was capable of defamatory meaning but later held that Dougherty had not proven the falsity of the alleged defamatory statements and so the letter could not be considered defamatory. We shall address the falsity issue infra. We note here, however, that the letter was clearly capable of defamatory meaning.

At the time of publication, Dougherty was a professional practicing in a close-knit rural community. Statements (a) and (c), supra, refer to the treatments given by Dougherty as making Mr. Gumbrell’s condition worse and as being ineffective and possibly harmful. These statements plainly disparage Dougherty’s professional competence. Statement (b), supra, refers generally to the charges the Gumbrells received from Dougherty for the treatments. Dougherty admitted at trial that the monetary amounts as stated in the letter were substantially correct. However, Dougherty argued that the letter falsely insinuates that Dougherty intentionally misrepresented the charges and was in fact attempting to commit a fraud upon the Gumbrells and their insurance company. Evaluating the nature of the audience, such a letter, written by a member of this close-knit rural community, was capable of harming Dougherty’s reputation so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Moreover, at trial, Dougherty presented evidence that his chiropractic practice declined, that he and his wife had been subjected to telephone harassment, and that a rock had been thrown through a window in their home since publication of the letter. Thus, we find that Dougherty had presented evidence from which a jury could infer that the letter was not only capable of defamatory meaning but that it was in fact so understood in the community.

III.

The next issue we address is Dougherty’s third issue; whether the trial court erred by ruling that the subject matter of the letter was a matter of public concern, and consequently, imposing the burden of proving the falsity of the alleged defamatory statements upon Dougherty. Dougherty and appellee agreed that Dougherty was a private figure plaintiff. (N.T. 12/5/86 at 32-33). The trial court ruled, however, that the letter contained matters of public concern because the qualifications and practices of a chiropractor were allegedly at issue and because chiropractors and insurance practices are regulated by statute. Therefore, the trial court found, in accordance with Philadelphia Newspapers, Inc. v. Hepps, supra, that despite the fact that Dougherty was a private figure plaintiff, the burden of proving the falsity of the alleged defamatory statements must be borne by Dougherty because the challenged statements involved matters of legitimate public concern.

In Philadelphia Newspapers, Inc. v. Hepps, supra, the United States Supreme Court held that the First Amendment requires a private figure plaintiff to prove that defamatory statements are false when he seeks damages against a media defendant for speech of “public concern.” Since that decision, Pennsylvania has not focused on the public/private concern distinction.

The sole Pennsylvania appellate case which did address this distinction was Matus v. Triangle Publications which was decided before Hepps, supra. In Matus, our Supreme Court held that a talk show host who alleged that his wife had been overcharged for snow removal and that the snow remover should not be in the business, was a matter of private concern. Our Supreme Court explained:

This was no contribution ‘to robust debate on public issues’; it was by no stretch of imagination a matter of public concern that Gerhart thought he or his wife had been bilked by Matus the evening before; it was but a matter of private pique.

Matus, supra, 286 A.2d at 365.

The instant case is distinguishable. Dougherty was a practicing chiropractor at the time the letter was published. The letter contained statements which placed Dougherty’s ethical and professional character in question. As a practicing chiropractor, Dougherty was subject to the provisions of the “Chiropractic Practice Act.” This Act explicitly provides for, inter alia, license requirements, examination requirements, continuing education and penalties for violations of the provisions of the Act. By this Act, the legislature has implicitly stated that the quality of chiropractic services rendered in this Commonwealth is a matter of public concern.

The trial court, in holding that the subject matter of the letter was of public concern, relied upon the regulation by statute of the medical profession, specifically chiropractic medicine, and insurance practices. “These legislatively imposed regulations give credence to a holding that such matters concerning both physicians and insurance are matters of utmost public concern____” (Trial Ct.Op. at 12). We hold that the subject matter of the letter, i.e. the qualifications and practices of a chiropractor, involved matters of public concern, therefore, we need not address the trial court’s reasoning which refers to insurance practices.

As a result of our finding that the challenged statements involved matters of public concern, and of the parties’ stipulation that Dougherty is a private figure, we find further that the burden of proving the falsity of the alleged defamatory statements was properly imposed upon Dougherty by the trial court in accordance with the United States Supreme Court’s holding in Philadelphia Newspapers, Inc. v. Hepps, supra.

IV.

Dougherty also contends that the lower court erred by determining that the following two statements were opinions based solely upon disclosed facts and therefore not actionable:

(a) I would like to warn others to be aware of extra charges and treatments which at least for us were ineffective and possibly harmful.
(c) During that time he became worse and had to go to another doctor for treatment.

Whether a particular statement constitutes a fact or an opinion is a question of law for the trial court to determine. Veno v. Meredith, 357 Pa.Super. 85, 92, 515 A.2d 571, 575 (1986) quoting Braig v. Field Communications, 310 Pa.Super. 569, 579, 456 A.2d 1366, 1372 (1983) cert. denied 466 U.S. 970, 104 S.Ct. 2341, 80 L.Ed.2d 816 (1984). In Braig this Court adopted Section 566 of the Restatement (Second) of Torts, supra, entitled Expression of Opinion, which provides as follows:

A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.

Comment (b) of § 566 explains the two types of expressions of opinion:

(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 plaintiffs 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.”

Restatement (Second) of Torts, § 566, comment (b). Comment (c) of § 566 explains the constitutional significance of the distinction explained in comment (b):

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).

Thus, the trial court must determine whether the challenged statement is an opinion or a fact. If the challenged statement is an opinion, it is actionable only if it “may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.” Veno, supra, 357 Pa.Superior Ct. at 93, 515 A.2 at 575, quoting Beckman, supra, 276 Pa.Superior Ct. at 535, 419 A.2d at 587, citing Restatement (Second) of Torts, § 566. With these principles in mind, we proceed to an examination of the challenged statements.

The statement — “I would like to warn others to be aware of extra charges and treatments which at least for us were ineffective and possibly harmful” — was found by the trial court to be “a statement of opinion by the author of the letter based upon the facts that are disclosed or assumed in the letter.” (Trial Ct.Op. at 7). In the trial court’s opinion the statement referred only to the facts in the letter and did not relate to or suggest undisclosed facts. The trial court then held as a matter of law that the challenged statement was not actionable.

The portion of the statement referring to extra charges appears to be based upon the facts alleged throughout the letter regarding the billing dispute. While the alleged facts may be actionable if calculated to convey a false impression, we agree that the opinion expressed regarding those facts is not by itself actionable.

Giving Dougherty the benefit of inferences to which he is entitled, we disagree, however, with the trial court’s conclusion that the second part of that statement, “which at least for us were ineffective and possibly harmful,” referred only to the facts disclosed in the letter. The letter does not disclose any information regarding the treatments Dougherty gave to Gumbrell. The nature and frequency of the treatments as well as Gumbrell’s condition before, during and after these treatments are never addressed. The letter never discloses whether Gumbrell expressed his concerns to Dougherty. The reader of this letter could reasonably infer from the “warning” that Dougherty subjected Gumbrell to treatments which were ineffective, harmful and possibly painful, while he intentionally misrepresented his fees in order to make more money. Since the author of the letter was the patient’s wife, a reader of the letter could easily infer that the wife, being in such close relation to the patient, was in a good position to know undisclosed facts concerning the treatments upon which she based her opinion. Thus, we find that the second part of the statement quoted above is a mixed opinion which could reasonably be interpreted to imply undisclosed defamatory facts, and is therefore actionable.

The statement — “During that time he became worse and had to go to another doctor for treatment” — was also found by the trial court to be an opinion based on disclosed facts and therefore not actionable. The trial court in its opinion states:

... [J]ust prior to the grant of the nonsuit that it was possible from the evidence for the jury to determine that the statement that, ‘he became worse,’ was false. However, in light of the fact that the second portion of the statement, ‘that he had to go to another doctor,’ was a true disclosed fact on which the opinion was based, it is protected and therefore not defamatory.

(Trial Ct.Op. at 16).

At trial, evidence was presented which established that Gumbrell did go to another doctor. However, it does not follow that the reader of the letter would assume that the opinion expressed, i.e. Gumbrell’s condition had become worse, was based solely on the fact that he went to another doctor. The reader of the letter was not informed about the treatments Gumbrell received from Dougherty; how these treatments made Gumbrell’s condition worse; Gumbrell’s condition before, during or after the treatments; the medical opinion of the doctor who detected that Gumbrell’s condition had become worse; the treatment Gumbrell received to correct this condition; a specific description of the worsening condition; whether Gumbrell had discussed his condition and concerns with Dougherty; whether Gumbrell had experienced increasing amounts of pain and discomfort and voiced this to his wife; or how the treatments given by Dougherty caused Gumbrell’s condition to worsen. The reader of the letter could reasonably infer from the opinion expressed that the author of the opinion, i.e. the patient’s wife, had specific undisclosed information as to how Dougherty’s treatments caused Gumbrell’s condition to worsen so that Gumbrell had to seek relief by going to another doctor. Though the challenged statement is an opinion in form, it may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion. As such, it is a mixed opinion and is therefore actionable.

V.

Dougherty’s final contention is that the lower court erred by finding that the newspaper was not negligent, as a matter of law, in the publication of the letter. The lower court acknowledged the importance of allowing the jury to determine the issue of negligence in most instances, but held that in this case, "... there is no legally sufficient evidence of defendant’s negligence discernible from the record” and granted the newspaper’s motion for a compulsory non-suit. (Trial Ct.Op. at 21). The lower court found that Webb, editor of the newspaper, used reasonable care and due diligence in investigating the contents of the letter before the letter was published.

Both parties agree that Dougherty is a private figure, plaintiff and that the negligence standard is the proper standard of proof in this action. In Gertz, supra, the United States Supreme Court held:

... so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

Gertz, supra, 418 U.S. at 347, 94 S.Ct. at 3010. In Hepps, supra, the United States Supreme Court stated:

... Pennsylvania requires a private figure who brings a suit for defamation to bear the burden of proving negligence or malice by the defendant in publishing the statements at issue.

Hepps, supra, 475 U.S. at 770, 106 S.Ct. at 1560. In Rutt v. Bethlehem’s Globe Publishing Co., 335 Pa.Super. 163, 484 A.2d 72 (1984), this Court held:

... a private figure defamation plaintiff, seeking compensation for harm inflicted as a result of the publication of defamatory matter, must prove that the defamatory matter was published with ‘want of reasonable care and diligence to ascertain the truth’ or, in the vernacular, with negligence.

Id., 335 Pa.Superior Ct. at 186, 484 A.2d at 83.

A court may grant a non-suit only when the plaintiff’s evidence together with all reasonable inferences of fact arising therefrom, viewed in the light most favorable to the plaintiff, is insufficient to make out a prima facie case of negligence. Watkins v. Sharon Aerie No. 327 Fraternal Order of Eagles, 423 Pa. 396, 398, 223 A.2d 742, 743 (1966); Stenson v. Rechutti, 416 Pa. 548, 207 A.2d 760 (1965). Negligence is a question for the jury to determine upon proper instruction. The court should not remove the question from the jury unless the facts leave no room for doubt. Papa v. Pittsburgh Penn-Center Corporation, 421 Pa. 228, 218 A.2d 783 (1966); Spraggins v. Shields, 310 Pa.Super. 408, 456 A.2d 1000 (1983).

In the instant case, Webb stated that generally when a letter to the editor was received by the newspaper, the first determination to be made was whether what was said was true. (N.T. 12/8/86 at 44). However, Webb admitted that he never spoke directly with Mr. Gumbrell, who was Dougherty’s patient, (N.T. 12/8/86 at 51-52), nor attempted to find out if Mr. Gumbrell’s condition had actually become worse due to Dougherty’s treatment. (N.T. 12/8/86 at 51; N.T. 12/10/86 at 115). Webb conceded that he believed that Dougherty was a professional whose reputation could be harmed in a small degree by the publication of the letter. (N.T. 12/10/86 at 117). Nonetheless, Webb admitted that he did not specifically identify the Gumbrells to Dougherty, as the complaining patient when Webb asked Dougherty to respond to letter. (N.T. 12/8/86 at 63-64). Webb admitted that he did not talk with Wanda, Dougherty’s receptionist who handled the billing for services challenged in the letter. (N.T. 12/8/86 at 56). Webb acknowledged that he never inquired as to the identity of the other doctor who treated Mr. Gumbrell. (N.T. 12/10/86 at 115). He conceded that he never considered or discussed the physician/patient privilege with Dougherty and its potential effect on Dougherty’s willingness and ability to respond to the allegations. (N.T. 12/8/86 at 65). He admitted that he never informed Dougherty that if Dougherty had a dispute with the facts contained in the letter, there was a possibility that it would not have been published. (N.T. 12/8/86 at 57, 61-65).

We find that Dougherty presented sufficient evidence from which a jury could infer that the newspaper failed to act with reasonable care and due diligence. Because there is room for doubt as to whether or not the newspaper was negligent, the motion for compulsory non-suit should not have been granted. The question of negligence should have been permitted to go to the jury.

CONCLUSION

We find that the published letter is capable of defamatory meaning. A reasonable person could infer from the letter that Dougherty was incompetent as a chiropractor and unethical as a businessman. The subject matter of the published letter involved matters of public concern, i.e. the professional competence of a licensed chiropractor. As a private figure plaintiff seeking damages from a media defendant for speech relating to matters of legitimate public concern, Dougherty bore the burden of proving the falsity of the challenged defamatory statements. Here, Dougherty presented sufficient evidence to raise a jury question as to the falsity of the challenged statements; consequently, this issue should have gone to the jury. Two of the challenged statements were expressed in the form of opinions. Because the opinions may reasonably be understood to be based at least in part on undisclosed defamatory facts, they were therefore actionable. The newspaper had a legal obligation to exercise reasonable care and due diligence to ascertain the truth or falsity of the potentially defamatory statements before publishing the letter. Dougherty presented enough evidence to create a jury question as to whether the newspaper fulfilled this duty; therefore, this issue should have been left to the jury to decide.

Based upon the foregoing, we find that the non-suit was improvidently granted; accordingly, we vacate the non-suit and remand for a new trial.

HOFFMAN, J. concurs in the result.

      . This issue is addressed before Dougherty's other issues because the trial court, which initially found the letter capable of defamatory meaning, granted the compulsory non-suit since it found that Dougherty had failed to meet his burden of proving falsity with respect to matters which the trial court considered to be of public concern.

        . 445 Pa. 384, 286 A.2d 357 (1971) cert. denied 408 U.S. 930, 92 S.Ct. 2494, 33 L.Ed.2d 343 (1972), overruled on other grounds, 506 Pa. 304, 485 A.2d 374 (1984).

      . "Chiropractive Practice Act,” 63 P.S. §§ 625.101 to 625.1106, 1986, Dec. 16, P.L. 1646, No. 188, replaced the “Chiropractic Registration Act of 1951," 63 P.S. §§ 601 to 624, 1951, Aug. 10, P.L. 1182, § 1.

      . We note that whether the regulation by statute of insurance practices is sufficient to render this single incident of alleged medical insurance fraud a matter of public concern is not clear; nor is it apparent that Matus is materially distinguishable in this respect.

      . The language, "assumed in the letter,” would appear to qualify and undermine the trial court's holding that the challenged statement is an opinion based solely upon disclosed facts.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    547 A.2d 788
    COMMONWEALTH of Pennsylvania v. Walter WINSTEAD, III Appellant.
    Superior Court of Pennsylvania.
    Submitted June 6, 1988.
    Filed Sept. 14, 1988.

      J. David Farrell, Norristown, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Com., appellee.
    Before MELINSON, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from an order denying appellant’s petition under the Post Conviction Hearing Act (PCHA), 42 Pa. C.S.A. §§ 9541-9551. Appellant contends that counsel was ineffective for failing to (1) impeach the Commonwealth’s witness with his prior inconsistent statements by using the notes of testimony from appellant’s first trial; (2) investigate the scene of the alleged crime and object to an inaccurate diagram of the scene used by the Commonwealth during the trial; (3) request a polling of the individual jurors; and (4) move for a mistrial after it was discovered that a juror and the prosecutor had contact during the trial. For the reasons set forth below, we affirm the order of the PCHA court.

Appellant was arrested and charged with robbery, 18 Pa. C.S.A. § 3701, theft by unlawful taking, 18 Pa. C.S.A. § 3921, and criminal conspiracy, 18 Pa. C.S.A. § 903. Appellant was found guilty by a jury of the aforementioned offenses. Appellant filed a motion for a new trial, which was granted. Following his second jury trial, appellant was again convicted on all charges. Post-trial motions were filed, argued, and denied. Appellant was sentenced to an aggregate term of imprisonment of thirty-four-to-sixty-eight-months. No appeal was taken from the judgment of sentence. Approximately two years later, appellant filed a pro se PCHA petition. PCHA counsel was appointed and an amended PCHA petition was filed. Following a hearing, appellant’s petition was dismissed. This appeal followed.

To determine whether counsel rendered ineffective assistance, a two-prong test is employed. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983). Second, if appellant’s claim does have arguable merit, we must determine whether “the course chosen by counsel had some reasonable basis designed to serve the best interests of his [or her] client.” Commonwealth v. Buehl, 510 Pa. at 378, 508 A.2d at 1171 (citations omitted).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, 515 Pa. at 159, 527 A.2d at 976. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show that the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. Furthermore, in reviewing claims of ineffective assistance of counsel, it should be noted that counsel is presumed effective, and appellant bears the burden of proving that counsel was ineffective. Commonwealth v. Petras, 368 Pa.Super. 372, 375, 534 A.2d 483, 484 (1987).

Appellant initially contends that trial counsel was ineffective for not impeaching the Commonwealth’s witness, Fred Lynch, an alleged co-conspirator, by confronting him with the notes of testimony from appellant’s first trial. Appellant argues that, at the second trial, the witness substantially altered his testimony regarding how the money from the robbery was to be divided among the partidpants from the testimony he gave at appellant’s first trial. Specifically, appellant argues that had counsel ordered the notes of testimony from the first trial, counsel would have been able to confront the witness with prior inconsistent testimony.

Our first inquiry is to determine if appellant’s claim has arguable merit. A review of the record reveals that counsel in fact did cross-examine Fred Lynch about his contradictory testimony. At appellant’s first trial, Fred Lynch testified that the money from the robbery was to be split equally among his cohorts. N.T. January 19, 1984 at 63. During appellant’s second trial, when the prosecutor questioned him about the plan to divide the profits from the robbery, Fred Lynch responded that after he took his “cut” the remainder would be split between his cohorts. On cross-examination, appellant’s counsel questioned Fred Lynch extensively about his conflicting testimony.

[APPELLANT’S COUNSEL]
Q. Say you got money how were you going to divide it?
[WITNESS (FREDDIE LYNCH)]
A. Three ways.
Q. Three equal shares?
A. I would have got the most because I went in the bank.
Q. You would have got the most and that was what the deal was?
A. Yes.
Q. Do you recall testifying before and saying that it would have been split equally?
A. Well, it would have been but I would have took more.
Q. Oh, equally is equal except you would have gotten more? That is what you are testifying now?
A. That is what I am saying....
Q. Isn’t the reason you changed your testimony that the last time it didn’t make sense when you testified that it was a three way split and that you had the gun and that you went in the bank and that you took all the risks and that you said it was going to be a three way split, equal?
A. It was going to be a three way split. When you say equal—
Q. Well, do you recall testifying before that you were going to split it equally?
A. I probably did say that.
Q. Which time were you lying? This time or the last time?
A. I said that. I said it. Okay?
Q. Okay. Which is the truth? This time or last time?
A. Well, I would say this is the truth.
Q. You would say this is the truth because you had more time to think about it?
A. Yes.

Id. at 62-64 (emphasis added). This exchange convinces us that counsel effectively cross-examined Freddie Lynch about his prior inconsistent statements. Additionally, the witness admitted that he had previously lied. Thus, the purpose perceived by appellant for using the notes of testimony was accomplished by counsel’s course of questioning at trial. Moreover, appellant has failed to allege how the introduction of notes of testimony from his first trial would have been more effective than the questioning employed by his counsel. Therefore, because counsel did impeach the witness through the use of prior inconsistent statements, appellant’s first claim does not possess arguable merit and we will not deem counsel ineffective. See Commonwealth v. Parker, supra.

Appellant’s second claim of ineffectiveness is that trial counsel should have investigated the scene of the crime and taken steps at trial to have the diagram of the crime scene corrected. Appellant contends that the diagram of the scene of the crime used throughout the trial by the prosecutor was inaccurate and did not correspond to his testimony. At trial, appellant testified that he drove through a driveway near the bank to get to the mall. Because the diagram did not show the existence of a driveway near the bank, appellant argues that his testimony was discredited by the jury, and thus, he was prejudiced.

As we noted previously, when reviewing an ineffectiveness claim, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Jones, 298 Pa.Super. 199, 205, 444 A.2d 729, 732 (1982). Moreover, in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981), our Supreme Court noted that,

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id., 492 Pa. at 563, 424 A.2d at 1335.

Here, the lower court concluded that without corroborating testimony to support appellant’s allegation, appellant failed to sustain his burden of proof. We are constrained to agree. At trial, appellant, on direct examination, used the diagram, without objection, to illustrate his testimony. See N.T. January 20, 1984 at 18-19. Appellant did not claim that the diagram was inaccurate until he was cross-examined. See id. at 37-38. It is important to note that appellant does not offer any explanation for his delay in claiming that the diagram was inaccurate. Moreover, because appellant did not call trial counsel as a witness at his PCHA hearing, no further proof of counsel’s failure to undertake an independent investigation of the area was offered. See PCHA Hearing, July 23, 1987 at 46-47. In addition, we note that absent appellant’s self-serving testimony, the record and transcripts are devoid of information that would suggest that the diagram was inaccurate. Furthermore, appellant does not point to any specific harm that was suffered as a result of counsel’s failure to have the diagram corrected. As noted by the lower court in its opinion, the issue of the “missing driveway” was inconsequential to appellant’s defense because it neither proved nor disproved appellant’s involvement in the robbery. PCHA Opinion at 12. Thus, appellant has failed to substantiate his claim that counsel did not investigate the crime scene and that the diagram was inaccurate. Additionally, appellant has not shown how an investigation of the crime scene would have benefited his case. Without further evidence to support appellant’s claim, we are left with nothing more than appellant’s naked assertion and, on that alone, appellant’s claim of ineffectiveness is without merit. See Commonwealth v. Pettus, 492 Pa. at 553, 424 A.2d at 1335 (1981).

Appellant next contends that trial counsel was ineffective for not requesting that the jurors be polled separately. Specifically, appellant argues that each juror should have been polled individually on the verdict and, as a result of counsel’s inadvertence to request this method of polling, he was denied a fair trial. We disagree.

“It is well-settled in this Commonwealth that a criminal defendant tried before a jury has the right to a unanimous verdict.” Commonwealth v. Sanchez, 363 Pa.Super. 499, 501, 526 A.2d 790, 791 (1987) (citations omitted). See also Pa.R.Crim.P. 1120(b). To safeguard against less than a unanimous verdict, either party has the right to request that the jury be polled to ascertain whether the jurors are in agreement with the verdict reached. Commonwealth v. Pemberton, 256 Pa.Super. 297, 301, 389 A.2d 1132, 1134 (1978). See also Pa.R.Crim.Pro. 1120(f).

The purpose of the poll is to give any juror, who may possibly have been under pressure from other members of the jury to acquiesce in the verdict, an opportunity to speak out and declare to the court that the verdict as announced by the foreman was not voluntarily joined in by the answering juror.

Commonwealth ex rel. Ryan v. Banmiller, 400 Pa. 326, 328, 162 A.2d 354, 355, cert. denied, 364 U.S. 852, 81 S.Ct. 99, 5 L.Ed.2d 76 (1960).

Here, in evaluating appellant’s claim of ineffectiveness of counsel, our first step is to ascertain whether counsel’s failure to request that each juror be polled individually has arguable merit. We find that it does not. Our review of the transcripts indicates that after the verdict was announced, counsel asked that the jury be polled collectively and stated that an individual poll of each juror was unnecessary. See N.T. January 20, 1988 at 91. The court then proceeded to ask the jury the following questions:

Q. Members of the jury, will you please state your verdict in regards to the charge of criminal conspiracy?
A. Guilty.
Q. Is everyone unanimously agreed as to the verdict of guilty in regards to the charge of criminal conspiracy?
A. Yes.
Q. If anyone has not agreed would you raise your hand? All right. In regards to the charge of theft of movable property, what is your verdict?
A. Guilty.

Id. at 91-92. The court continued to ask the jury similar questions about the verdict for each charge and then entered a statement on the record indicating that when the jury was polled, each juror responded affirmatively to the questions, and the result was that the verdict was unanimous. Id. at 93. The purpose of a jury poll is to allow the jury an opportunity before the recording of the verdict, to declare their assent with or dissent from the verdict. See Commonwealth ex rel. Ryan v. Banmiller, 400 Pa. at 328, 162 A.2d at 355. The method, (permitting the jury to respond in unison), undertaken by the court in this case accomplished the purpose for polling the jury: it ascertained that the verdict reached by the jury was agreed upon by each member. See id. We can find no authority and appellant cites none to support his contention that an individual poll of each juror is required. Moreover, appellant has not alleged that any juror hesitated in announcing his or her assent to the verdict or demonstrated an underlying dissent. Accordingly, because the jury was polled at counsel’s request and the result of the poll indicated that the verdict was unanimous, appellant’s claim lacks arguable merit and counsel will not be found ineffective for failing to pursue a meritless claim. Commonwealth v. Parker, 503 Pa. at 341, 469 A.2d at 584.

Lastly, appellant contends that counsel was ineffective for not moving for a mistrial after it became known that juror number seven and the prosecutor had out-of-court contact. Appellant notes that the prosecutor and juror number seven engaged in an improper conversation during a recess at trial that was witnessed by appellant’s father. According to appellant, because of the improper contact between the prosecutor and the juror, he was denied the right to an impartial jury. Thus, appellant contends that he was prejudiced by counsel’s failure to move for a mistrial after discovering the improper communication between the prosecutor and the juror.

At the onset, we note that “contact between jurors and other parties, court officers, lawyers and judges is viewed with disfavor.” Colosimo v. Pennsylvania Elec. Co., 513 Pa. 155, 161, 518 A.2d 1206, 1209 (1986). The impartiality and integrity of the jury are critical to the proper functioning of our judicial system. Id. Not only does the Code of Professional Responsibility, DR 7-108(B), proscribe ex parte contact with jurors, but it is also a crime for any person to influence a juror’s decision in a case, 18 Pa. C.S.A. § 5102.

In Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983), our Supreme Court announced the standard for determining whether contact between a juror and an officer of the court warrants a new trial. Id., 501 Pa. at 27, 459 A.2d at 734. Under Bradley, there must be a showing that the contact between a member of the jury and an officer of the court resulted in “a reasonable likelihood of prejudice”. Id., 501 Pa. at 36, 459 A.2d at 739.

The courts look with suspicion upon any communications between parties to a suit or their counsel and the jury impaneled to try it; and if such communication is had and it appears that a conversation was had about the suit, or the communication is not explained satisfactorily, it will, in itself, be ground for a new trial. If, when explained, however, it can be seen in the communication nothing was said about the case and nothing was done for the purpose of influencing the mind of the jury, and that the communication or conversation had no influence on the verdict which was reached, no ground exists to set the verdict aside for the reasons that said comment could not have been prejudicial.

Colosimo v. Pennsylvania Elec. Co., 513 Pa. at 165, 518 A.2d at 1211 (citing Printed Terry Finishing v. City of Lebanon, 247 Pa.Super. 277, 299, 372 A.2d 460, 471 (1977), quoting California Fruit Exchange v. Henry, 89 F.Supp. 580, 588-89 (W.D.Pa.1950)).

Here, during a recess in the proceedings on the second day of the trial, juror number seven approached the prosecutor and conversed with her in the corridor of the Court House. N.T. January 19, 1984 at 92, 96. Appellant’s father witnessed the encounter and reported it to trial counsel. Id. at 92. Counsel, in turn, reported it to the Court and requested that the juror be questioned as to the purpose and content of the conversation. Id. The court questioned the prosecutor about her contact with the juror and was informed that the conversation focused on the merits of living in the Upper Dublin area. Id. The prosecutor assured the court that there was no discussion of the case or anything related to it. Id. at 93. Subsequently, juror number seven was asked about his contact with the prosecutor and he confirmed that the conversation did not involve any aspects of the case and that it would not affect his impartiality as a juror. Id. at 96-97. At that point, appellant’s counsel stated that he was satisfied and the trial reconvened.

Because the prosecutor and the juror did not discuss the case and there was no attempt to influence the outcome of the trial, the lower court concluded that the contact was satisfactorily explained and shown to be harmless. See PCHA Opinion at 8. See also Colosimo v. Pennsylvania Elec. Co., 513 Pa. at 165, 518 A.2d at 1211. On the basis of this record, we cannot discern any prejudice to appellant from the juror’s contact with the prosecutor. Although the contact and communication between the prosecutor and the juror was improper and ill-advised, appellant has failed to show that it resulted in a “likelihood of prejudice” to the outcome of his case. See id. Accordingly, because we cannot conclude that the Commonwealth’s case benefitted from the prosecutor’s contact with the juror and prejudiced appellant’s case, appellant’s claim lacks arguable merit and counsel was not ineffective for failing to move for a mistrial on the basis of the juror’s contact with the prosecutor.

For the foregoing reasons, we affirm the order of the PCHA court.

ORDER AFFIRMED. Jurisdiction relinquished.

      . Appellant also contends that sentencing counsel was ineffective for failing to perfect an appeal. Following an evidentiary hearing, the lower court found sentencing counsel’s testimony that he was never asked to file an appeal to be credible and concluded that appellant had waived his right to appeal. See N.T. October 9, 1987 at 9. See also PCHA Opinion February 9, 1988 at 20. Appellant, however, challenges the findings of the PCHA court on appeal and alleges that he did not waive his appellate rights. Brief for Appellant at 17-18. The determination of the PCHA court that appellant waived his rights does not preclude us from reviewing the merits of the issues raised on a PCHA appeal. See Commonwealth v. Jenkins, 316 Pa.Super. 167, 171, 462 A.2d 847, 849 (1983) (questions raised on appeal from denial of PCHA not “finally litigated" since merits of claims have not been ruled on by appellate court).

      . The Code of Professional Responsibility provides in pertinent part as follows:
      Disciplinary Rule 7-108(B)-
      (1) A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury.
      (2) A lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case.

      . 18 Pa. C.S.A. § 5102 provides in relevant part:
      (a) A person is guilty of a misdemeanor of the second degree if he intentionally interferes with, obstructs or impedes the administration of justice, or with the intent of influencing any judge, juror, witness or court officer in the discharge of his duty.

      . It is important to note that by our decision here today, we are not condoning contact between jurors and officers of the court. Although, the facts of this case do not rise to the legal standard necessary to prove that the contact between the juror and attorney prejudiced appellant, we, nevertheless, are disturbed by the conduct exhibited by the prosecutor. Though the contact was shown to be innocuous, the prosecutor’s actions by engaging in conversation with a juror and failing to report the incident to the court were imprudent and in disregard of not only the Code of Professional Responsibility, 7-I08(B), but also the court’s explicit instructions that there should not be any contact between the jury and the parties or their counsel.


author: ROWLEY, Judge:

text:
    547 A.2d 794
    Joseph T. SVETIK and Rose Svetik, His Wife, Appellants, v. Joseph T. SVETIK and Michael R. Martino, Jr., a Partnership.
    Superior Court of Pennsylvania.
    Argued March 9, 1988.
    Filed Sept. 19, 1988.

      William P. Coffin, Easton, for appellants.
    Jeffrey R. Dimmich, Allentown, for appellees.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   ROWLEY, Judge:

This is an appeal from the trial court’s entry of summary judgment in favor of the appellee partnership. The question presented is whether a general partner (Joseph T. Svetik) has a cause of action against his partnership for negligence resulting in personal injuries sustained by him as he examined the partnership premises. We hold that, under the facts of this case and the present state of the law in Pennsylvania, appellant has no such cause of action.

The facts are as follows. Joseph T. Svetik, an appellant herein, and Michael R. Martino, Jr. entered into a written agreement to form a partnership. On the same day the agreement was executed the partners acquired, as tenants in common, certain real estate known as 66 Broadway, Jim Thorpe, Pennsylvania. The stated purpose of the partnership was to operate and rent the property. The partnership agreement stated that the duties of Michael Martino were primarily “to collect rents, pay bills, handle all repairs, complaints of tenants, etc.” The duties of appellant were primarily “to prepare all tax returns and handle all relations with attorneys, real estate agents regarding the purchase and sale of the property, and to handle questions and matters that arise concerning the financing of the property.”

In spite of the foregoing provisions establishing primary duties in the agreement, Svetik had just completed painting a gate on the property when an iron arch fell, striking him and causing him personal injuries. He and his wife instituted this negligence action against the partnership, to recover damages for his injuries. The record is clear, and there is no dispute, that this action was instituted against the partnership and not against Mr. Martino as an individual. Specifically, plaintiffs aver in the complaint that “an ornate arch ... attached to a fence post and building situate at 66 Broadway Street” fell on, and broke, Svetik’s legs.

The partnership filed a motion for summary judgment. The evidence before the trial court, when it considered the motion, consisted, inter alia, of: the complaint; defendant’s answer* and new matter; plaintiffs’ reply to new matter; an affidavit by defense counsel with an attached partnership agreement, fictitious name registration, and deed to the premises; and plaintiffs’ reply to defendant’s request for production of documents, which included photographs of the premises. The motion for summary judgment was granted by the trial court and the action was dismissed. This appeal followed.

We note, initially, that the party who moves for summary judgment, in this case the partnership, “has the burden of showing that there is no genuine issue as to any material fact and must submit affidavits or other evidence in support of the motion.” Billman by Billman v. Pennsylvania Assigned Claims Plan, 349 Pa.Super. 448, 453, 503 A.2d 932, 935 (1986). Our scope of review of a summary judgment was set forth in Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 288-90, 515 A.2d 980, 981 (1986):

In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, [313 Pa.Super. 479,] 482, 460 A.2d [288], 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 384, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1971).

Appellant presents two arguments in support of his assertion that the trial court erred in granting summary judgment. First, he asserts that Pennsylvania Rule of Civil Procedure 2129 specifically permits an action sounding in negligence by one partner against the partnership for injuries sustained by him. Alternatively, he argues that Pennsylvania should follow cases in two other jurisdictions which, he suggests, permit such an action.

Appellee responds that appellant, as one of two members of the partnership, is in effect suing himself. Therefore, appellee argues, the trial court was justified in granting summary judgment pursuant to Bowser v. Hershey Baseball Association, 357 Pa.Super. 435, 516 A.2d 61 (1986).

Before addressing appellant’s two arguments, we note that our Court has stated “[i]t is axiomatic that a party may not sue himself.” West Penn Administration, Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, 469, 433 A.2d 896, 901 (1981). Our task, therefore, is to determine, within the constraints of the law of partnerships, whether this principle operates to prevent the case at bar from proceeding on the merits. In other words, we must determine whether the plaintiffs status as a partner in the partnership which operates the premises on which he was working bars this negligence action.

I.

Rule 2129 states, in relevant part: “An action may be prosecuted at law by ... one or more partners, or by such partners together with other persons not partners, against the partnership.” Appellant’s primary argument is that this provision permits his action to proceed. We disagree.

The Pennsylvania Constitution vests in the Supreme Court “the power to prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant____” Const, art. 5, § 10(c) (emphasis added). Pursuant to this power, the Supreme Court appointed a Civil Procedural Rules Committee to assist in the preparation and revision of the Rules. The Committee recommended the Rules of Civil Procedure, which were adopted by the Supreme Court. See, 42 Pa.C.S., Rules of Civil Procedure, at XXV.

The Constitution specifically states that the Rules of Procedure do not enlarge the substantive rights of any litigant. This constraint is emphasized in numerous comments concerning the history of Rule 2129. One jurist has explained the purpose of Rule 2129 in this manner:

Prior to the adoption of [Rule 2129], with certain exceptions, actions by a partnership against one of its members were prohibited at law, and the remedy was held to be solely in equity. Rule 2129 was apparently adopted to avoid delays and expenses incident to an accounting in equity____

Kukurin v. Hallam, 21 Wash.Co.Rep. 27, 30, 40 D. & C. 514, 517 (1940). Most actions between a partner and co-partners which required an accounting were heard in equity. 21 Standard Pennsylvania Practice 2d § 112:12; 28 P.L.E. Partnerships § 111; see also Stephens v. Lehnert, 310 Pa. 412, 165 A. 651 (1933). The Rules Committee Note which previously accompanied Rule 2129 indicates the efforts of the drafters to make those actions available at law:

This rule is purely procedural and is only intended to make available at law those actions between partners and the partnership which previously could only have been brought in equity. If there are any situations in which the substantive law would prevent suits between the partners and the partnership because isolated acts should not be adjudicated while the partnership is a going concern this rule will not create any right to sue at law.

Rules Committee Note to Pa.R.C.P. 2129, 42 Pa.C.S. (rescinded effective April 18, 1975); see 4 Anderson Pennsylvania Civil Practice (1962 ed.) at 281-82. Thus, one commentator has explained, “[t]he mere fact that a partner is on one side and the firm is on the other is no longer a bar to an action at law.” 6 Goodrich Amram 2d § 2129:1. Because Rule 2129 arose from concerns involving the distinction between law and equity, it is evident that the rule was not intended to create a cause of action where none had previously existed. We hold that the application of Rule 2129 to the facts of the case at bar does not provide a basis upon which the trial court’s granting of summary judgment will be overturned.

II.

Appellants next argue that if Rule 2129 does not create such a cause of action, the Pennsylvania courts should follow two other jurisdictions in permitting negligence actions for personal injuries by one partner against the partnership. In support of their position, appellants cite a case from each of those jurisdictions which, they assert, indicates a movement toward allowing negligence actions by a partner against the partnership.

A partnership is statutorially defined, in Pennsylvania, as “an association of two or more persons to carry on as co-owners a business for profit.” 59 Pa.C.S. § 311(a). Our Supreme Court has held that, generally speaking, a partnership is not a legal entity separate from its partners:

We deem it to be the law in Pennsylvania and the approved opinion in most other jurisdictions that a partnership is not recognized as an entity like a corporation, that it is not a legal entity having as such a domicile or residence separate and distinct from that of the individuals who compose it. It is rather a relation or status between two or more persons who unite their labor or property to carry on a business for profit. This is subject to apparent exception, for while a partnership as such is not a person, it, as a matter of fact, is treated by a legal fiction as a quasi person or entity for such purposes as keeping of partnership accounts and marshalling assets.

Tax Review Board of the City of Philadelphia v. D.H. Shapiro Co., 409 Pa. 253, 260, 185 A.2d 529, 533 (1962), quoting In Morrison’s Estate, 343 Pa. 157, 162, 22 A.2d 729, 732 (1941); McElhinney v. Belsky, 165 Pa.Super. 546, 69 A.2d 178 (1949).

The most obvious area of exception, in which courts and legislative bodies have treated partnerships as legal entities, is taxation. See Freedman v. Tax Review Board of the City of Philadelphia, 434 Pa. 282, 258 A.2d 323 (1969); Tax Review Board v. Belmont Laboratories Co., 392 Pa. 473, 141 A.2d 234 (1958); Houston v. City of Pittsburgh, 8 Pa.Cmwlth. 468, 303 A.2d 860 (1973); see also 28 P.L.E. Partnerships § 52. Partnerships have been viewed as entities in other phases of their operation, as well. For example, “the capacity of a partnership to sue and be sued in its firm name generally turns on whether it is considered a legal entity for that purpose, separate and apart from its member partners.” 59A Am.Jur.2d Partnership § 698.

A few jurisdictions have permitted partners to maintain various tort actions against their partnerships. See “Tort Action for Personal Injury or Property Damage by Partner Against Another Partner or the Partnership,” 39 ALR 4th 139. While the reason for allowing suits involving intentional torts is apparent, at least two jurisdictions have also permitted suits sounding in negligence, and it is for this reason appellant maintains the trial court erred in granting summary judgment.

In the case of Smith v. Hensley (Ky.App.1961), 354 S.W.2d 744, the Kentucky supreme court permitted a partner to maintain an action against the partnership of which he was a member for the loss of his truck in a fire caused by the negligence of partnership employees. The plaintiff, one of eight partners in a coal mining operation, employed a driver and owned a truck which the partnership rented for the purpose of hauling coal. Plaintiffs truck was one of thirty vehicles in the partnership’s fleet. Plaintiff alleged that as his truck was being filled with gasoline at a partnership-owned gasoline station, the fuel ignited, thus destroying the vehicle. He sought to recover from the partnership the value of his truck on the basis that some of the partnership employees had acted in a negligent manner. The court recognized that

[vjarious legal concepts could be invoked as a basis for denying a right of recovery to the plaintiff. One would be that a partner cannot sue the partnership because a litigant cannot sue himself. Another would be that if negligence of the partnership employees is to be imputed to the defendant partnership to establish a basis for liability, by the same token the negligence must be imputed to the plaintiff so as to bar recovery.
It is our opinion, however, that under a realistic approach, seeking to achieve substantial justice, the plaintiff should be held entitled to maintain the action.

Id. at 745. In holding that the partner was entitled to maintain an action against the partnership, the Kentucky court emphasized the business relationship between the partner and the partnership. The court noted that a partner who has paid an obligation of the firm out of his own pocket may seek contribution from his co-partners, and that a partner is entitled to reimbursement from the firm for losses suffered by him in the ordinary and proper course of firm affairs.

The case at bar differs markedly from that cited by appellants. In Smith v. Hensley, the partnership had a contract with the plaintiff, not as a partner, but as an individual engaged in an unrelated business relationship with the partnership. No such business arrangement exists in the case at bar. Rather, appellant was merely present on property, owned by him and his partner and in the possession and control of the partnership, engaged in the type of work which was specified in furthering the partnership business. Therefore, we are not persuaded that we must create an exception which would permit an action sounding in negligence for personal injuries, under the circumstances of the case at bar, to proceed. Instead, we look to the unambiguous language of the Uniform Partnership Act, adopted in Pennsylvania at 59 Pa.C.S. § 301, et seq., for guidance. Under the Act, appellant’s suit cannot be maintained because: 1) the negligence he attributes to Michael Martino must by law be imputed to him; and 2) appellant, as a partner, would be in effect suing himself.

The law of partnerships in Pennsylvania makes it clear that a partnership as a unit is liable for the negligence or misconduct of a partner in the ordinary course of the partnership’s business. 28 P.L.E. Partnerships § 77. The statute regarding wrongful acts committed by a partner, 59 Pa.C.S. § 325, states:

Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his co-partners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act. (Emphasis added.)

Section 325 is derived verbatim from the Uniform Partnership Act, § 13. The effect of § 325 is that it creates a liability on the partnership as an entity. Further, the general rule is that “[e]very member of a partnership is liable for a tort committed by one of the members acting in the scope of the firm business, even if the other partners did not participate in, ratify or have knowledge of the tort.” “Derivative Liability of a Partner for Punitive Damages for Wrongful Act of Copartner,” 14 ALR 4th 1335, 1336 (footnote omitted). The necessary result is that where a person who is not a partner is injured as the result of the negligent acts of a partner acting within the scope of his or her duties, the partners become joint and severally liable. Thus, we hold that the averred negligence must be imputed to appellant.

We find support for this view in the decision of this Court in Bowser v. Hershey Baseball Association, 357 Pa.Super. 435, 516 A.2d 61 (1986). The Hershey Baseball Association was an unincorporated, non-profit association. Bowser, a member of the association’s board of directors, sustained injuries when he was struck in the head by a baseball during tryouts. He brought an action against the association based on the alleged negligence of the association. At the close of the plaintiffs’ testimony on liability, the trial court granted a compulsory nonsuit. This Court affirmed the trial court’s holding that a member of an unincorporated, non-profit association had no cause of action against the association for personal injuries. We noted:

The record clearly discloses that Bowser was not a client, customer or invitee of the association. Instead, he was one of the members of the association and was actively engaged in organizing and conducting tryouts for teenagers who wished to be a part of the association’s baseball program. Thus, he was one of the joint entrepreneurs who were in possession of the ballfield and actively engaged in conducting the very activity which caused his injury. If the activity were conducted negligently by allowing the batter to hit from a spot in front of the backstop, as appellant contends, that negligence must also be imputed to him. We agree with the trial court, therefore, that the action cannot be maintained.

Id., 357 Pa.Superior Ct. at 440, 516 A.2d at 63; Accord,, Plasterer v. Paine, 375 Pa.Super. 407, 544 A.2d 985 (1987)

Finally, the eminent jurist Learned Hand noted in Helvering v. Smith, 90 F.2d 590 (2d Cir., 1937), that the Uniform Partnership Act has not made partnerships independent juristic entities. Thus, in seeking to impose liability on the partnership Mr. Svetik is actually imposing liability on himself, as appellee contends. Since a suit against oneself cannot be maintained, West Penn Administration, Inc., supra, the trial court was correct in granting summary judgment.

Summary judgment affirmed.

      . Mr. Svetik’s wife, Rose Svetik, is also an appellant herein. She has asserted a derivative claim for loss of consortium.

      . The grantees named in the deed are Joseph T. Svetik and Michael R. Martino, Jr., as tenants in common.

      . It does not appear from the complaint that the accident was in any way related to the painting of the gate. Indeed, paragraph 5 of the complaint avers that appellant had returned his paint brush and scraper to the building prior to occurrence of the accident. Paragraph 6 avers that the accident took place as appellant "examined an ornate arch.”

      . The specific acts of negligence alleged to have been the cause of appellant’s injuries were that the defendant partnership, and in particular Michael Martino, Jr., knew or should have known that the metal arch would fall down by the touch of a person (Complaint, paragraph 8); and, negligent and careless maintenance of the building constituted breach of a legal duty to appellant (Complaint, paragraph 9).

      . The trial court filed no opinion, but cited Bowser v. Hershey Baseball Association, 357 Pa.Super. 435, 516 A.2d 61 (1986), discussed infra.

      . Accord, Bowser v. Hershey Baseball Association, 357 Pa.Super. 435, 516 A.2d 61 (1986) (existence of Pa.R.C.P. 2154, which is substantially similar in form and content to Pa.R.C.P. 2129, did not preclude our Court from barring an action for personal injuries by member of unincorporated, non-profit association against the association), discussed infra.

      . At common law, a partnership could not sue or be sued as an entity, consistent with the view that a partnership was not a legal person. 68 C.J.S. Partnership § 67 n. 74 and § 200.

      . Further, we emphasize that we take no position as to whether the views expressed by the Kentucky court should be adopted in Pennsylvania.

      . We also decline to follow Norick v. Dove Construction, 204 Mt. 57, 662 P.2d 1318 (1983), which appellant set forth in support of his position. Norick also involved many factors not present in the case at bar, including the presence of a third-party subcontractor who allegedly caused the loss.


text:
    547 A.2d 800
    COMMONWEALTH of Pennsylvania v. Daniel Jordan THOMPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 9, 1988.
    Filed Sept. 15, 1988.

      John P. Liekar, Public Defender, Canonsburg, for appellant.
    Almon S. Burke, Jr., Assistant District Attorney, Washington, for Com.
    Before CAVANAUGH, ROWLEY and KELLY, JJ.
   KELLY, Judge:

Appellant, Daniel Jordan Thompson, seeks to appeal from judgment of sentence entered following his conviction of third degree murder. We deny allowance of appeal of the discretionary aspects of sentence.

FACTS AND PROCEDURAL HISTORY

On August 4, 1986, appellant, David Reynier and Fred Bazzoli, consumed a case of beer while painting a home in Taylorstown, Pennsylvania. After work, they purchased a second case of beer and decided to drive to an isolated location and practice target shooting. Appellant had a .22 magnum rifle and Fred Bazzoli had a 30.06 rifle.

Appellant asked Fred to set up some targets in the field on a tree stump. As Fred walked toward the stump, the gun in appellant’s hands discharged; appellant claimed the gun discharged accidentally. Fred was startled but he was not hit. Appellant then challenged David Reynier to take a shot at Fred. David’s shot struck Fred in the arm. Both went to see Fred’s injury. David told Fred to lay still and that he would go get help. As David walked back to the car, he heard a gun shot. He turned and saw appellant standing with his rifle levelled at Fred. Fred died from the gun shot wounds.

Appellant and David then fled in the victim’s girlfriend’s car which the victim had borrowed on the day of his death. They eventually turned themselves in to police in Kansas City, Kansas. Though they initially claimed that they had shot Fred in self-defense when he shot at them, David later admitted the foregoing facts.

On February 20,1987, appellant entered a general plea of guilty to criminal homicide and theft. Because of the evidence of intoxication, the trial court convicted appellant of third degree murder rather than first degree murder. On April 27, 1987, the trial court sentenced appellant to ten (10) to twenty (20) years imprisonment for the murder conviction and a concurrent term of two (2) to four (4) years for the theft conviction. A timely motion to reconsider the sentence was denied, and this timely appeal followed.

I.

On appeal, appellant contends that the trial court abused its discretion by: sentencing him to the statutory maximum despite the absence of aggravating factors; failing to adequately consider mitigating factors; and, failing to make an adequate statement of the reasons for the sentence imposed on the record. These contentions are addressed to the discretionary aspects of sentence.

Appellant offered the following statement in purported compliance with Pa.R.A.P. 2119(f):

In compliance with Pa.R.A.P. 2119, (f), appellant herewith sets forth the reasons for challenging the discretionary aspects of the sentence imposed by the lower court. Appellant contends that the trial court in sentencing appellant to the maximum term of imprisonment, failed to consider the general standards in sentencing set forth in Sentencing Code 42 Pa.C.S.A. 9721(b); failed to take into consideration the mitigating factors set forth in the Sentencing Code 42 Pa.C.S.A. 9722 nor weigh said mitigating factors against the guidelines for total confinement as set forth in the sentencing code, 42 Pa.C.S.A. 9725.

(Appellant’s Brief at 8). This statement is inadequate to raise a substantial question as to the appropriateness of sentence so as to permit grant of allowance of appeal.

In Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988), this Court stated:

We note, however, that we do not recommend the above Pa.R.A.P. 2119(f) statement as a model for future cases. In Commonwealth v. Douglass, [370 Pa.Super. 104, 535 A.2d 1172 (1987) (Kelly, J., concurring)], this author explained:
[T]he mandate of 42 Pa.C.S.A. § 9781(b) is not fulfilled by the mere incantation of the language of one of the subprovisions of 42 Pa.C.S.A. § 9781(c). Our former practice was struck down as having improperly enlarged an appellant’s right to appeal. Would a construction of 42 Pa.C.S.A. § 9781(b) and Pa.R.A.P. 2119(f) which merely required the incantation of conclusions of law or particular statutory language have any real or practical effect on the decision of whether to
grant allowance of appeal? Assuredly not. Our Supreme Court explained:
Our insistence on separate presentation of these issues is more than mere formalism; important concerns of substance guide this decision. In addition to preserving the respective rights of both parties according to the jurisdictional scheme provided by the legislature, it furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.
Commonwealth v. Tuladziecki, [513 Pa. 508, 513, 522 A.2d 17, 19-20 (1987) ]. This purpose can only be effectuated if this Court requires that appellant’s concise statement contain specific allegations of fact, rather than mere conclusions of law. Moreover, because the determination as to whether appellant’s allegations are sufficient to raise the appearance of a substantial question must be separate and distinct from the review of the merits of the appeal, the factual allegations in the statement must be accepted as a true and complete statement of the relevant facts for this limited purpose. Only in this way can the requirement of a separate review of the statement rise above mere formalism and achieve its substantive purpose of limiting discretionary review on the merits to ‘exceptional case[s].’
535 A.2d at 1176-1177; see also Commonwealth v. Darden, supra, [366 Pa.Super. 597 at 602] 531 A.2d [1144] at 1147 [(1987)].
The Commonwealth’s Pa.R.A.P. 2119(f) statement in the instant case consists primarily of incantations of statutory provisions and pronouncements of conclusions of law; nonetheless, when read together with the statement of question presented, sufficient assertions of fact exist to raise a substantial question under 42 Pa.C.S.A. § 9781(c)(3). In the future, however, reference to the guideline ranges applicable and a complete statement of factual assertions in support of any challenge under 42 Pa.C.S.A. § 9781(c)(2) or 42 Pa.C.S.A. § 9781(c)(3) is highly recommended.

539 A.2d at 377-78. The statement criticized but found adequate in Commonwealth v. Felix, supra, is materially distinguishable from that presented by appellant in the instant case. The statement in Felix contained specific factual assertions. The Pa.R.A.P. 2119(f) statement in the instant case consists wholly of incantations of statutory provisions and pronouncements of conclusions of law, and fails entirely to articulate the facts upon which the claim is predicated. “It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Commonwealth v. Tuladziecki, supra, 522 A.2d at 20; Commonwealth v. Felix, supra, 539 A.2d at 380.

Allowance of appeal from discretionary aspects of sentence is denied.

CAVANAUGH and ROWLEY, JJ., concur in the result.

       We note that the record clearly indicates that the trial court reviewed the pre-sentence investigation report, entertained arguments of counsel, considered the applicable guidelines, and then concluded that a maximum sentence was appropriate in this case based upon the fact that, had appellant not exhibited diminished capacity due to voluntary intoxication, a first degree murder conviction would have been appropriate and that the third degree murder conviction was in that sense aggravated. The trial court also noted that the pre-sentence investigation report demonstrated problems in appellant’s criminal, social, employment and educational history which were caused or exacerbated by appellant’s alcohol abuse. The weight to be given to the sentencing factors was exclusively the province of the sentencing court to determine. See Commonwealth v. Moran, 369 Pa.Super. 109, 110, 534 A.2d 1103, 1104 (1987). Though brief, the statement of reasons for the sentence imposed was plainly sufficient. See Commonwealth v. Devers, — Pa. —, 546 A.2d 12 (1988); cf. Commonwealth v. Graham, 372 Pa.Super. 365, 368 n. 2, 539 A.2d 838, 839 n. 2 (1988); Commonwealth v. Darden, 366 Pa.Super. 597, 604, 531 A.2d 1144, 1148 (1987); Commonwealth v. Osborn, 364 Pa.Super. 505, 520, 528 A.2d 623, 631 (1987).