On December 24, 2019, the Pennsylvania Supreme Court entered an Order in the case of Fox v. Smith, et al., granting the Petition for Allowance of Appeal filed by Rawle & Henderson LLP on behalf of its client, Stacey Smith, to review the issue of proper venue in an Internet defamation case. As set forth in the Supreme Court’s Order granting the Petition, the issue is as follows:
Whether the Superior Court panel, in a matter of first impression, improperly developed a rule for determining proper venue in an internet-based defamation action that deems venue proper anywhere the purported defamation is accessed through the internet despite the lack of any other connection to the venue, a rule which abandons all of the protections accorded by the limiting characteristics of the venue rules and opens the door to unchecked forum shopping, calling for this Court to provide “decision and statutory guidance” as requested by the Opinion of the concurring panel member of the Pennsylvania Superior Court?
The Fox lawsuit arose out of a mayoral election in Chester Heights, a small borough located in Western Delaware County, Pennsylvania. In November 2017, plaintiff Joy Fox, the Democrat mayoral candidate, lost the election to Stacey Smith, the Republican mayoral candidate; Smith is currently serving as the Mayor of Chester Heights.
In her ensuing defamation lawsuit, which she filed in state court in Philadelphia County, candidate Fox alleged that in connection with the November 2017 election, Smith and several other Republican candidates and members of Republican committees in Delaware County posted on the Internet information that Fox had had a “bad check” conviction, among other things, in order to damage her reputation and impact the election. Rawle & Henderson LLP was retained to represent Mayor Smith. The defendants filed preliminary objections based on improper venue, arguing that venue was only proper in Delaware County where Fox and all the defendants resided and the Internet postings were made. In response to the venue challenge, Fox argued that a close friend of hers, who resided in Philadelphia, “read the defamatory information on the Facebook post published by the candidates and their committee on their social media pages” on her computer at her residence in Philadelphia, thus making venue proper in Philadelphia County.
The trial judge, Judge Arnold New, denied the defendants’ preliminary objections. Although Judge New noted in his opinion that the postings in question were not directed or sent to anyone in Philadelphia, and had to be sought out by any viewer, he concluded that he was compelled to follow the Supreme Court’s prior holding in Gaetano v. Sharon Herald Co., a 1967 decision that held venue was proper in a print media defamatory cause of action where the defamatory statement is “published,” which the Supreme Court defined as where the defamatory statement was read and understood to be defamatory to the plaintiff. However, Judge New also specifically recognized that Fox’s Internet defamation case raised venue issues that were not before the Supreme Court when it decided Gaetano:
In the 51 years since Gaetano was decided, technology drastically changed the way in which we communicate, yet the venue rules related to defamation have remained stagnant. This Court humbly requests a reevaluation of these principles to the internet, social media, and technology of the modern era.
Judge New also certified the issue of venue as being appropriate for immediate appeal to the Pennsylvania Superior Court. On appeal, a three-member panel of the Superior Court affirmed the trial court’s decision, again following the Supreme Court’s 1967 decision in Gaetano. However, one member of the Superior Court panel, Judge Mary Murray, in her concurring Opinion, specifically requested the Supreme Court to examine the venue issue and update the law requiring proper venue in an Internet defamation case:
Accordingly, I write to underscore that the courts of this Commonwealth – at both the intermediate appellate and trial level – would benefit from decision and statutory guidance in analyzing established legal principles such as venue, [and] I respectfully request that our Supreme Court, its rules committees, and our legislature provide further guidance in the evolving area of electronic communications.
As noted, it is Rawle & Henderson LLP’s position on behalf of Mayor Smith that proper venue in an Internet defamation case should be limited to the venues in which the allegedly defamatory remarks were posted and directed, and where the plaintiff resides. In other words, venue should be limited in such cases to where the allegedly defamatory posting would have its most significant impact since the primary purpose in a defamation action is to assure that a plaintiff who has been defamed will be allowed to vindicate his/her reputation where their reputation is most important, in their home community. Rawle & Henderson will also argue that following the venue rule in Gaetano in an Internet defamation case would completely undermine all the protections afforded by the limiting characteristics of the venue rules, and open the door to uncheckable forum shopping. In fact, applying the Supreme Court’s holding in Gaetano to an Internet defamation case would theoretically permit the filing of such a lawsuit in any of the 67 counties in Pennsylvania, despite the lack of any meaningful connection to the remote venue.
Smith’s and the co-defendants’ Supreme Court briefs are currently due on February 3, 2020, but this date will likely be extended by the Court.