Case ID: 140203044 Control No.: 14053383

LISE RAPAPORT and
SEAMUS P. McCAFFERY, h/w

Plaintiffs,

vs.

INTERSTATE GENERAL MEDIA, LLC
t/a INTERSTATE GENERAL MEDIA, also
t/a THE PHILADELPHIA INQUIRER,
also t/a PHILADELPHIA DAILY NEWS,
also t/a PHILLY.COM, also t/a
PHILLYDAILYNEWS.COM; WILLIAM
MARIMOW; CRAIG McCOY; SIGNE
WILKINSON; and MICHAEL DAYS

Defendants.
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COURT OF COMMON PLEAS
PHILADELPHIA COUNTY

FEBRUARY TERM, 2014
No. 3044

JURY TRIAL DEMANDED

ORDER

AND NOW, this ___ day of ___________, 2014, upon consideration of the Defendants
Preliminary Objections and the Plaintiffs response in opposition thereto, it is hereby ORDERED
that all of the Preliminary Objections are OVERRULED, and that the Defendants shall Answer
the Amended Complaint within twenty (20) days from the date hereof.

BY THE COURT:

_____________________________________
J ohn M. Cleland, S.J .
Specially Presiding
Case ID: 140203044
17 JUN 2014 05:39 pm
L. OWENS
Control No.: 14053383
THE BEASLEY FIRM, LLC
BY: Dion G. Rassias, Esquire
Identification No.: 49724
1125 Walnut Street
Philadelphia, PA 19107-4997
(215) 592-1000
(215) 592-8360 (Facsimile)

LISE RAPAPORT and

Plaintiffs,

vs.


Defendants.
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PHILADELPHIA COUNTY

FEBRUARY TERM, 2014
No. 3044

JURY TRIAL DEMANDED

PLAINTIFFS RESPONSE IN OPPOSITION TO THE PRELIMINARY OBJECTIONS
OF ALL DEFENDANTS

Plaintiffs Lise Rapaport and Seamus P. McCaffery, by and through their undersigned
counsel, hereby file their response in opposition to the numerous Preliminary Objections filed by
all Defendants, and in support thereof, and with the incorporation of the Plaintiffs attached
Memorandum of Law,
1
state and aver as follows:
1. The Defendants Preliminary Objections each and every one of them are
completely contrary to Pennsylvania law with respect to claims for false light and defamation,
and are also fatally deficient because the Defendants improperly offer their own competing

1
During a conference call with all parties on April 25, 2014, Plaintiffs counsel requested, and this Honorable Court
granted, permission for the Plaintiffs to file an omnibus response in opposition and memorandum of law collectively
addressing all of the Defendants various preliminary objections.
Case ID: 140203044
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factual explanations for what was published about the Plaintiffs. At its core, this case is far
simpler and much clearer than the Defendants pleading would ever suggest: the Defendants did
not just publish facts about the Plaintiffs, but instead conducted a repeated and blatant smear
campaign that brought the First Amendment to its knees. Contrary to the gratuitous
pronouncements throughout the Preliminary Objections, this case is not about diminishing the
First Amendment. It is about what happens when the First Amendment is actually used as a
weapon but invoked by its abusers as a shield to insulate their wrongdoing. For that abuse of a
constitutional right, well-settled law demands that the Defendants be held accountable, and,
because the First Amendment is so precious, when it is abused, the law specifically provides for
punitive damages.
2. At the risk of oversimplification, each of the Defendants Preliminary Objections
can be eliminated by the Pennsylvania Superior Courts crystal clear opinion in Krajewski v.
Philly Online, LLC, et al., 2012 Pa.Super. 166, 53 A.3d 793 (Pa.Super. Ct. 2012), which
articulated the standards for false light and defamation claims and, when applied to the Plaintiffs
Amended Complaint, confirms the frivolity of the pending Preliminary Objections.
3. As is set forth at length in Plaintiffs accompanying Memorandum of Law, the
Defendants repeatedly and improperly attempt to justify what they published by offering their
own factual interpretations and explanations for what was written and depicted in their various
publications. At the preliminary objections stage, this is completely improper.
4. The Defendants Memorandum of Law repeatedly and incorrectly states that
recovery for false light and defamation is not available for publications about matters of public
concern. However, Pennsylvania courts have very clearly permitted recovery for the disclosure
of public, as well as private, facts, and the Defendants brief on this issue is simply incorrect.
Case ID: 140203044
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5. The Defendants also incorrectly claim that publications which convey opinion
are not actionable. This blanket statement is again completely contrary to Pennsylvania law,
and notably, the United States Supreme Court has rejected the notion that there is a wholesale
defamation exemption for anything that might be labeled an opinion.
6. Finally, the Defendants baldly assert that the element of malice has not been pled
and cannot be met. This is a baseless and unsupported conclusion. Even without the benefit of
forthcoming discovery, there is already an abundance of evidence establishing malice.
7. Ultimately, the Defendants Preliminary Objections are a rote, misleading and
incomplete medley of fact-based and sanitized arguments that must respectfully be overruled.

BY: s/ Dion G. Rassias
DION G. RASSIAS

DATED: J une 17, 2014
Case ID: 140203044
BY: Dion G. Rassias, Esquire
Identification No.: 49724
1125 Walnut Street
(215) 592-1000
(215) 592-8360 (Facsimile)

LISE RAPAPORT and

Plaintiffs,

vs.


Defendants.
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PHILADELPHIA COUNTY

FEBRUARY TERM, 2014
No. 3044

JURY TRIAL DEMANDED

PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF
THEIR RESPONSE IN OPPOSITION TO THE PRELIMINARY OBJECTIONS
OF ALL DEFENDANTS

Case ID: 140203044
TABLE OF CONTENTS

A. Introduction 1
B. Preliminary Objections Standard 1
C. False Light Invasion of Privacy Claims..... 2
D. The Defamatory Meaning... 12
E. Public and Private Concerns are Both Actionable in Pennsylvania... 14
F. Opinions are Actionable. 16
G. Malice has been Abundantly Pled; Even the Defendant Newspapers Own
Publisher Knew and Confirmed that Defendants Marimow and McCoy Wrote
an Improper and Contrived Smear Piece About the Plaintiffs...

17
H. The Defendants Specific Factual Challenges 19
I. The Caricature is Actionable.. 27
J . Defendants Mis-Cite the Reliable Source Doctrine 28

Case ID: 140203044
1

A. INTRODUCTION
The Defendants have raised various Preliminary Objections to the Amended Complaint
that can be categorized as follows: 1) lack of falsity; 2) opinion is not actionable; 3) lack of
malice; and 4) public vs. private concerns. Plaintiffs hereby submit their omnibus response in
opposition to those objections and respectfully submit that all of the Defendants arguments must
fail. As this Honorable Court will plainly see, the Defendants have mis-cited the law in several
respects, have improperly interjected their own factual interpretation and explanation of what
they earlier wrote and drew, and ultimately, completely disregard the significance of the fact that
the newspapers own publisher has admitted twice that the lead article was written to make
the Plaintiffs look bad and appear as though they had done something improper, and was
factually tainted because of the way The Inquirers reporter asked the questions. In fact, the
publisher even went so far as to state that the story was so disappointing that it should never
have been placed on page one of the newspaper.
Against this established and indisputable factual background, the Defendants have filed
Preliminary Objections that are completely without merit. Each preliminary objection should be
summarily denied, and the Defendants should be ordered to Answer the Amended Complaint
forthwith so that discovery may promptly commence.
B. PRELIMINARY OBJECTIONS STANDARD
Defendants have filed Preliminary Objections in the nature of a demurrer. This requires
the court to resolve the issues solely on the basis of the facts alleged in the Complaint. A
preliminary objection in the nature of a demurrer admits every well-pleaded fact and all
inferences reasonably deducible therefrom. Rutherfoord v. Presbyterian-University Hospital,
417 Pa.Super. 316, 321-322, 612 A.2d 500, 502 (1992). A defendant is not permitted to allege
Case ID: 140203044
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facts or evidence outside of the Complaint, and the court may not consider any facts or evidence
outside of the Complaint in disposing of the legal issues. Mellon Bank, N.A. v. Fabinyi, 437
Pa.Super. 559, 650 A.2d 895 (1994).
Preliminary objections that seek the dismissal of a cause of action should be sustained
only in a case in which it is clear and free from doubt that the pleader will be unable to prove
facts legally sufficient to establish the right to relief. If there is any doubt as to whether a
demurrer should be sustained, it should be resolved in favor of overruling the preliminary
objections. ODonnell v. Hovnanian Enter., Inc., 2011 Pa.Super 210 (Pa.Super. 2011); Feingold
v. Hendrzak, 2011 Pa.Super. 34, 15 A.3d 937, 941 (Pa.Super. 2011); Haun v. Community Health
Sys., Inc., 2011 Pa.Super. 15, 14 A.3d 120, 123 (Pa.Super. 2011).
Nowhere in the Defendants respective briefs do they cite the standards controlling
preliminary objections. This, of course, is not an oversight: it is because the Defendants
Preliminary Objections repeatedly violate these standards by impermissibly disregarding the true
nature of what the Plaintiffs have actually pled, or by repeatedly arguing their own factual
explanations of what they now pretend the articles say or, worse, what the articles were allegedly
intended to convey. Under any scenario, the law controlling preliminary objections is clear, and
the Defendants deliberately fail to remind the Court in their briefs of these well-settled tenets.
C. FALSE LIGHT INVASION OF PRIVACY CLAIMS
Turning specifically to the false light invasion of privacy claims, Krajewski v. Philly
Online, LLC, et al., 2012 Pa.Super. 166, 53 A.3d 793, 805 (Pa.Super. Ct. 2012) (Krajewski),
recognized that:
A cause of action for invasion of privacy is actually comprised of
four analytically distinct torts: 1) intrusion upon seclusion, 2)
appropriation of name or likeness, 3) publicity given to private life,
and 4) publicity placing a person in a false light. Larsen v.
Case ID: 140203044
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Philadelphia Newspapers, Inc., 375 Pa.Super. 66, 543 A.2d 1181,
1188 (Pa.Super. 1988). The fourth of these, recognized in
Pennsylvania as false light invasion of privacy, is defined by the
Restatement (Second) of Torts, Section 652E as follows:

652E. Publicity Placing Person In False Light

One who gives publicity to a matter concerning
another that places the other before the public in a
false light is subject to liability to the other for
invasion of his privacy, if

(a) the false light in which the other was placed
would be highly offensive to a reasonable person,
and

(b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter
and the false light in which the other would be
placed.

RESTATEMENT (SECOND) TORTS, 652E. In contradistinction to
invasion of privacy for publicity given to private life, see id.,
652D, false light does not require proof that the matter giving rise
to the plaintiffs claim be restricted to one of private concern.
Indeed, recovery in tort for disclosure of public, as well as private,
facts, . . . is warranted to protect a claimants right to be free from
being placed in a false light . . . which may be caused by the
discriminate publication of such facts. Larsen, 543 A.2d at 1189.

Krajewski, 2012 Pa.Super. at *27-30.
Unlike defamation, false light invasion of privacy provides a cause of action not merely
for publications that are provably false, but also for those that although true, are selectively
publicized in a manner creating a false impression. Id. at *31 (citing Larsen, 543 A.2d at 1189).
In Larsen, an en banc Superior Court noted:
In many cases . . . the publicity given to the plaintiff is defamatory,
so that he would have an action for libel or slander . . . . In such
[cases] the action for invasion of privacy will afford an alternative
or additional remedy, and the plaintiff can proceed upon either
theory, or both, although he can have but one recovery for a single
instance of publicity.
Case ID: 140203044
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It is not, however, necessary to the action for invasion of privacy
that the plaintiff be defamed. It is enough that he is given
unreasonable and highly objectionable publicity that attributes to
him characteristics, conduct or beliefs that are false, and so is
placed before the public in a false position. When this is the case
and the matter attributed to the plaintiff is not defamatory, the rule
here stated affords a different remedy, not available in an action for
defamation.

See RESTATEMENT (SECOND) TORTS 652E Cmt. b (Relation to defamation.).

Moreover, in Santillo v. Reedel, 430 Pa.Super. 290, 634 A.2d 264, 267 (Pa.Super. 1993),
the Superior Court again carefully noted:
Consistent with this standard, a false light claim can be established
where true information is released if the information tends to imply
falsehoods. [citing Larsen]. "Literal accuracy of separate
statements will not render a communication 'true' where the
implication of the communication as a whole was false." Id. (citing
Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448
A.2d 6, 15 (1982)). In order to prevail on this theory of false light
invasion of privacy, appellant must show discriminate publication
of true statements, that is, appellees must have created a false
impression by knowingly or recklessly publicizing selective pieces
of true information. The question is whether appellees made
discrete presentation[s] of information in a fashion which
render[ed] the publication susceptible to inferences casting
[appellant] in a false light.... Id. (Emphasis added.)

In Larsen, the en banc Superior Court noted that a plaintiff may recover in tort for the
disclosure of public, as well as private, facts, even though they be true, [and the recovery] is
warranted to protect a claimants right to be free from being placed in a false light and incurring
the resultant mental suffering, shame or humiliation which may be caused by the discriminate
publication of such facts. Allowing the individual a cause of action in instances like that in the
case before us, where the media allegedly selectively excerpts and publishes portions of the truth,
finds support in the law of defamation. Larsen, 543 A.2d at 1188 (emphasis added). Further:
Case ID: 140203044
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The falsity with which we are concerned arises from the inference
derived from published statements, whether those statements are
actually true or not. We find that the element of falsity is met if
the plaintiff alleges that the defendant knowingly or recklessly
selectively printed or broadcast true statements or pictures in a
manner which created a false impression. To permit an editor to
publish misleading portions of the truth is the equivalent of
sanctioning the promulgation of falsehoods under the guise of the
First Amendment. This was never the intention of the drafters of
the Constitution, nor has the First Amendment been interpreted to
insulate one from any and all complaints premised upon the
publication of false or misleading information.

Id.

Larsen is highly significant because it confirmed that there can be a recovery in tort for
the disclosure of public and private facts, especially under circumstances like those presented by
the instant case. Larsen was decided in 1988, and the law on false light and defamation has not
changed in this regard; in fact, in 2012, the Superior Court decided Krajewski and there, the
well-settled law regarding false light was again confirmed.
In Krajewski, a trial court granted preliminary objections in the nature of a demurrer
dismissing the Plaintiffs claims of libel and false light invasion of privacy. The trial court found
that the Plaintiff could not demonstrate that the information an article and a caricature that
the newspapers had published was, in fact, false. In reversing the trial court, the Superior Court
specifically held that there were alternative interpretations of the content of the writings and the
caricature that were demonstrative of falsity and/or false light. In fact, it was established that the
writings and caricature at issue created the impression that the plaintiff, J oan Krajewski, was
ripping off taxpayers, whipping up public sentiment against her by suggesting that she had
robbed from the city treasury, and was otherwise in whole or in part responsible for the closing
of a local public library. Krajewski, 2012 Pa.Super. at *14. In its analysis, the Krajewski court
recognized that where a statement of opinion on a matter of public concern reasonably implies
Case ID: 140203044
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false and defamatory facts regarding public figures or officials, those individuals must show that
such statements were made with knowledge of their false implications or with reckless disregard
of their truth. See Krajewski, 2012 Pa.Super. at *25 (citing Milkovich v. Loraine J ournal Co.,
497 U.S. 1, 20, 110 S. Ct. 2695, 111 L. Ed. 2d 1(1990)). In viewing all of the defendants
articles, considered together in the context in which the papers editors placed them, the
Superior Court found that the articles might suggest to the average reader that Krajewski acted
to the detriment of her constituents in accepting a large payout of public funds that might
otherwise have sustained a branch of the Philadelphia Free Library. Krajewski, 2012 Pa.Super.
at *25. Ultimately, the implication from the articles and caricature was that Krajewski valued
her own interest above those of her constituents and was therefore unfit to hold public office.
Id. at *26. Thus, the Superior Court concluded that such a scenario could be provably false,
and therefore such an underlying communication, even when couched as an opinion, could be
defamatory. Id.
Krajewski contains a legal analysis of both an article and a caricature, exactly like the
instant case. Krajewski is the Pennsylvania appellate courts most recent opinion on the issue of
false light invasion of privacy claims, and as such, offers this Honorable Court the most guidance
on the law in Pennsylvania.
The Defendants here attempt to run from Krajewski (and Larsen), but the grounds offered
for such a wholesale retreat are not compelling in any way. Defendants initially attempt to
dismiss Krajewski by suggesting that because the Pennsylvania Supreme Court granted allocatur,
it should be inferred that the Court intended to reverse, thus implying that this Honorable Court
can choose not to accord it precedential authority.
2
That approach has been squarely rejected by

2
After the Superior Court filed its opinion, and ironically on the same day that the Supreme Court granted allocatur,
J oan Krajewski died. After her estate was established, the case was withdrawn as a result of her death.
Case ID: 140203044
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our appellate courts. In Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super. 2000),
appeal denied, 788 A.2d 381 (Pa. 2001), the Superior Court rejected the appellants argument
that since the Pennsylvania Supreme Court has granted a petition for allowance of appeal in
Brown, we should infer that it will be reversed. The Superior Court held that, to the contrary:
[W]e have long held that as long as the decision has not been
overturned by our Supreme Court, a decision by our Court remains
binding precedent.

Marks, 762 A.2d p. 1101. Accord Dixon v. Geico, 1 A.3d 921, 925 (Pa.Super. 2010) (noting that
our Supreme Court has recently granted allowance of appeal in a similar case, but [t]his Court
is of course bound by existing precedent under the doctrine of stare decisis and, therefore, we
continue to review the appeal before us in accordance with currently controlling precedent);
Prudential Prop. and Cas. Ins. Co. v. McAninley, 801 A.2d 1268, 1275 (Pa.Super. 2002) (a
majority Opinion of this Court remains binding precedent unless and until it has been overturned
by our Supreme Court, and [t]his is true even when the Supreme Court has granted a petition
for allowance of appeal in the previous case); Prowell v. Eastwood Chrysler-Plymouth, Inc., 20
D. & C. 5
th
67, 75 (Lawrence Co. 2010) ([t]his Court cannot assume that the Pennsylvania
Supreme Courts decision to grant the petition for allowance of appeal demonstrates an intent to
reverse the Superior Courts decision on the instant issue; [a]s long as the Superior Court has
not been overruled, the Superior Courts decision remains binding precedent). See also
Townsend Trust No. 7, 36 A.2d 438, 439 (Pa. 1944) (a lower court has no right to ignore the
latest decision of the Superior Court of this Commonwealth on an issue which has been squarely
decided. Until that decision should be over-ruled by the Superior Court itself or over-ruled by
the Supreme Court, it is still the law of this Commonwealth, regardless of the decisions of any
other court in the country).
Case ID: 140203044
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Defendants next argue that Krajewski and Larsen conflict with other Superior Court
decisions which, they claim, do not recognize a false light claim based on publications about
matters of legitimate concern to the public. However, they fail to acknowledge that the other
Superior Court decisions they cite were panel decisions, while Larsen v Philadelphia
Newspapers, Inc., 543 A.2d 1181 (Pa.Super. 1988), appeal denied, 552 A.2d 251 (Pa. 1988) was
handed down by the Court en banc and, as such, is controlling. Pa.R.A.P. 3103(b) expressly
provides:
An opinion of the court en banc is binding on any subsequent panel
of the appellate court in which the decision was rendered.

Larsen is binding precedent, and the Superior Court has never purported to overturn it.
The statements cited by defendants in other cases are mere dicta. Hull v. Curtis Publishing
Co., 125 A.2d 644 (Pa.Super. 1956) was an action by police officers over a photograph of them
arresting a suspect. The arrest had been reported in a local newspaper, accompanied by a
photograph of them capturing the suspect. Three years later, the Saturday Evening Post
published a story about the experiences of a former California chief of police and paid a news
agency for another photograph of the same arrest, which it used to illustrate the story. The
officers contended they received feedback accusing them of being bullies, but did not claim that
the photograph had been falsified in any way. More importantly, they did not file their action
until more than 3 years after the photograph was used. The Superior Court held their lawsuit
was time-barred. There was no claim that the magazine had done anything to cast the officers in
a false light and, in dicta, the court expressed doubt whether merely photographing an official
performing his public duty could constitute an invasion of privacy. That has nothing to do with
the present case, in which the Plaintiffs contend that the Defendants published articles and a
caricature that indeed cast them in a false light.
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Neish v. Beaver Newspapers, Inc., 581 A.2d 619 (Pa.Super. 1990) arose out of a number
of news articles regarding the appointment of the plaintiff as the borough solicitor. The Superior
Court held that the plaintiff had failed to show either that he has been placed in a false light by
the Appellees or that the publications would have been highly offensive to a reasonable person.
Id. at 624.
Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648 (Pa.Super. 1999) arose out of
articles regarding a proposed plan to eliminate school district contracts with politically
connected people, and described the awarding of such contracts as patronage. The articles
also identified the husband of a school board member who provided vending machines to the
schools as a likely loser if the plan were adopted, because he had worked for former U.S.
Representative William H. Gray. The plaintiffs sued, claiming the word patronage suggested
that the husband was guilty of corruption. The court rejected that argument and concluded that
the articles would not have been highly offensive to a reasonable person. It also commented, in
dicta, that the general public has an interest in and a right to know about their public school
system. Id. at 654.
However, the Superior Court also considered the plaintiffs further argument that, even
though the articles concern matters of public concern, their publication was accompanied by
unfair and unwarranted comment such that their false light cause of action remains viable.
The court disagreed that the articles contained such comment, but did not dispute that such
comment would have supported a cause of action for false light invasion of privacy. Thus, the
court implied that a publication is not immunized merely because the subject may be of public
interest, but may support a false light claim where it contains unfair and unwarranted comment
about the plaintiff.
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Strickland v. Univ. of Scranton, 700 A.2d 979 (Pa.Super. 1997) involved news articles
concerning a dispute over repayment of a loan. After a tenured university professor was killed in
an auto accident, his widow loaned money to a dean at the university. A dispute later arose as to
whether the dean had repaid the loan, leading to a lawsuit by the widow to collect the monies.
The dean was suspended by the university, and the District Attorneys Office commenced a
criminal investigation into the deans financial dealings with the widow. Thereafter, the dean
was removed from his administrative positions and told his contract would not be renewed and
that, unless he resigned, formal disciplinary proceedings would be initiated. He resigned,
received a sum of money from the university, and executed a general release. However, he then
sued the university and the widow.
Among his many claims, he attempted to allege one for false light based upon news
articles regarding the widows lawsuit. The Superior Court held that this claim failed because
there was no evidence that either the University or [the widow] controlled the content or
decision to publish any article concerning [the widows] lawsuit against him, a matter which was
of public record and not a private fact. Id. at 654. Thus, the court held that the claim failed in
the absence of any evidence that the university or the widow had made any statements to the
newspaper that cast the plaintiff in a false light. The point of the courts comment about the
Complaint being a matter of public record and not a private fact was merely to show that the
Complaint had been readily accessible to the newspaper, without any need to contact the
university or the widow, so the mere publication of news articles regarding the lawsuit did not
show that either the university or the widow was responsible for anything contained in the
articles.
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None of these cases held that a public official is precluded from bringing an action for
false light where a newspaper publishes statements that cast him in a false and highly offensive
light. The only cases that decided this issue were Larsen and Krajewski, and in both instances,
the Superior Court held that a public official may bring such an action.
Larsen and Krajewski are consistent with the U.S. Supreme Courts recognition in Gertz
v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), that there is no constitutional value in false
statements of fact. The public does not have a legitimate concern, worthy of constitutional
protection, in demonstrable falsehoods. A lie is a lie, no matter whom it concerns.
In a last gasp effort to distinguish Larsen and Krajewski, Defendants here improperly rely
on an unpublished Superior Court decision, Henderson v. Lancaster Newspapers. However,
unpublished memoranda decisions are not precedential, and the Superior Courts Internal
Operating Procedures prohibit a party from relying upon or citing them. See Pa. Superior Court
Internal Operating Procedure 65.37:
65.37. Unpublished Memoranda Decisions

A. An unpublished memorandum decision shall not be relied upon
or cited by a Court or a party in any other action or proceeding,
except that such a memorandum decision may be relied upon or
cited (1) when it is relevant under the doctrine of law of the case,
res judicata, or collateral estoppel, and (2) when the memorandum
is relevant to a criminal action or proceeding because it recites
issues raised and reasons for a decision affecting the same
defendant in a prior action or proceeding.

Furthermore, the appellant in Henderson stated in her appellate brief that she is prepared
to forego these claims and focus instead on the defamation counts, and apparently failed to
develop this argument (Memorandum Opinion at 29). The Superior Court therefore declined to
address this claim. Id. Defendants effort here to rely on an unpublished memorandum that did
not even address the issue only demonstrates how weak and unsupportable their argument is.
Case ID: 140203044
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The cases from other jurisdictions upon which the Defendants attempt to rely are
equally unavailing. For example, in Torrance v. Morris Publg Group, LLC, 636 S.E.2d 740
(Ga. App. 2006), the news articles reporting the results of an investigation by the Georgia Bureau
of Investigation were held to be truthful reports that accurately relayed the results of a public
investigation and did not support claims for libel or false light. That obviously has nothing to do
with the present case, factually or legally.
D. THE DEFAMATORY MEANING
The court has a duty to determine if a publication is capable of the defamatory meaning
ascribed to it by the party bringing suit. MacElree v. Phila. Newspapers, Inc., 544 Pa. 117, 124,
674 A.2d 1050, 1053 (1996). The court must bear in mind that "the mere susceptibility of the
publication to an interpretation which would render it innocuous [does not] conclusively defeat a
right of action for libel," id. at 126, 674 A.2d at 1054, quoting Corabi v. Curtis Pub. Co., 441 Pa.
432, 447, 273 A.2d 899, 907 (1971), and must overrule preliminary objections so long there is
any doubt as to whether a statement could be interpreted as defamatory. MacElree, 544 Pa. at
126, 674 A.2d at 1055 (where statement "could be interpreted" to convey defamatory meaning
ascribed to it by plaintiff, "there was doubt as to the defamatory nature of the complained of
language," and "demurrer should have been overruled").
A defamatory accusation need not be directly stated to be actionable. A cause of action
may also arise from an implied meaning of a communication. Gertz v. Robert Welch, Inc., 418
U.S. 323, 326 (1974). For example, where a Philadelphia newspaper was alleged to have
manufactured a quotation and falsely attributed it to counsel for a predominantly minority
university, accusing the local district attorney of electioneering and being the county's "David
Duke," the Pennsylvania Supreme Court held that preliminary objections in the nature of a
Case ID: 140203044
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demurrer should have been overruled because the statement could have been construed to imply
a defamatory accusation. MacElree, 544 Pa. at 126, 674 A.2d at 1055. The Court explained that
"a reasonable person could conclude that this was an accusation that [the plaintiff] was abusing
his power as the district attorney ... to further racism and his own political aspirations." Id. at
125, 674 A.2d at 1054.
Thereafter, the Superior Court held that a letter stating the plaintiff would be receiving "a
bill for the items that were missing out of [her hotel] room" was capable of a defamatory
meaning because it could be understood to "impl[y] that [she] had stolen the items missing from
her hotel room." Davis v. Resources for Human Dev., Inc., 2001 Pa.Super. 73,, 770 A.2d 353,
357 (Pa.Super. 2001). Similarly, the Superior Court also determined that a newspaper headline
stating "Attorney named in abuse petition" and a lead paragraph stating that the attorney "has
been accused in a court document of making harassing phone calls to a Mountville woman" were
capable of a defamatory meaning, despite the fact that they were literally true: the attorney had
indeed been "named" and "accused" in the petition. Weber v. Lancaster Newspapers, Inc., 2005
Pa.Super. 192, 878 A.2d 63 (Pa.Super. 2005), appeal denied, 588 Pa. 759, 916 A.2d 634 (2007).
However, the newspaper had falsely implied that the attorney had been named as a defendant in
the petition, when in fact the attorney was mentioned only incidentally in a petition that
overwhelmingly concerned another party, who was the actual defendant in the petition. The
Superior Court concluded that the statements were actionable because "a reasonable jury could
come to the conclusion that the article conveys the false impression that [the plaintiff] was
named as a defendant" in the petition. Weber, 2005 Pa.Super. 192, 878 A.2d at 74.

Case ID: 140203044
14

E. PUBLIC AND PRIVATE CONCERNS ARE BOTH ACTIONABLE IN
PENNSYLVANIA

The Defendants bungled analysis concludes with a section on whether Pennsylvania law
permits recovery for false light invasion of privacy for publications that pertain to matters of
public concern. Beginning at p. 28 of their brief
3
, Defendants McCoy and Marimow first claim
that the false light invasion of privacy tort should be rejected in its entirety because the
Pennsylvania Supreme Court has never ruled on the merits of such a claim. Then, one page later,
Defendants retrench and state that it remains unclear whether a plaintiff may ever recover for
false light invasion of privacy in Pennsylvania for publications about matters of public concern.
See Defendants Brief at p. 29. Then, the Defendants attempt to distinguish the Larsen and
Krajewski opinions set forth above, but ultimately conclude, in what can only be described as a
wholesale retreat, that this Honorable Court is unlikely to ignore the Supreme Courts
recognition of false light, and confess they are merely preserving this dispositive issue for any
potential appeal. Defendants Brief at 32. That is certainly not a proper basis for an appropriate
preliminary objection, and ultimately, is only probative of how weak and unsupported the
Defendants legal analysis truly is.
As noted above, Larsen v. Phila. Newspapers, Inc., supra, specifically states that "public,
as well as private, facts" may support a false light claim under 652E:
[O]ur review of the writings and case on the subject at hand also
gives credence to the tenet that recovery in tort for the disclosure
of public, as well as private, facts is warranted to protect a
claimant's right to be free from being placed in a false light and
incurring the resultant mental suffering, shame or humiliation
which may be caused by the discriminate publication of such facts.

(Emphasis supplied.)

3
This argument is incorporated by reference by Defendant Interstate and briefly reiterated by Defendants Wilkinson
and Days.
Case ID: 140203044
15

The plaintiff in that case was a J ustice of the Pennsylvania Supreme Court. He contended
that Philadelphia newspapers and others had published articles concerning hearings into his
conduct on the Court "which placed him in a false light." Larsen, 375 Pa.Super. at 81, 327 A.2d
at 1188. It was undisputed that the conduct of a Supreme Court J ustice was a matter of public
concern and the facts regarding his conduct were not private facts.
Recognizing that "public, as well as private, facts" may support an action under 652E,
the Superior Court held that the J ustice's allegations were "sufficient to allege a cause of action
under Section 652E and to withstand a demurrer." Id. at 84, 327 A.2d at 1190. (Emphases
supplied.) Federal courts following Pennsylvania law have also found that "[it] is enough that
the defendant has given publicity to any matter concerning the plaintiff that creates a 'highly
offensive' false impression about the plaintiff." Mzamane v. Winfrey, 693 F. Supp. 2d 442, 511
n.37 (E.D. Pa. 2010). Accord Tanzosh v. In Photo Surveillance, Kroll, Inc., 2008 U.S. Dist.
LEXIS 76022, 2008 WL 4415693 at *6 (M.D. Pa. Sept. 26, 2008); McGee v. Times Leader,
1990 U.S. Dist. LEXIS 17926, 1990 WL 288628 at *2 (M.D. Pa. Sept. 14, 1990).
Additionally, in Santillo v. Reedel, supra, the Superior Court distinguished between a
claim for publicity given to private life under 652D, and a false light claim under 652E. The
court observed that under 652D, "to make out a claim of publicity given to private life, a
plaintiff must establish that a private fact was publicized and that such fact was of a type highly
offensive to a reasonable person and not of legitimate concern to the public." Id. at 295, 634
A.2d at 266. To make out a false light claim under 652E, on the other hand, the Superior Court
stated, the plaintiff "must establish that a highly offensive statement was publicized ... with
knowledge or in disregard of the falsity." Id. Accord Doe v. Wyo. Valley Health Care Sys.,
2009 Pa.Super. 250 at *P13, 987 A.2d 758, 766 (Pa.Super. 2009) (distinguishing between a
Case ID: 140203044
16

claim for publicity given to private life under 652D and a false light claim under 652E, and
noting that under 652D, "[w]hen the subject-matter of the publicity is of legitimate public
concern, there is no invasion of privacy," whereas in a false light claim "under Section 652E, it is
essential that the matter published concerning the plaintiff is false").
F. OPINIONS ARE ACTIONABLE
The United States Supreme Court has rejected the notion that there is a wholesale
defamation exemption for anything that might be labeled opinion and explained that such a
notion ignore[s] the fact that expressions of opinion may often imply an assertion of objective
fact. Milkovich v. Lorain J ournal Co., 497 U.S. 1, 18 (1990). The High Court further held that
a so-called expression of opinion is not protected, so long as it contains or implies a false
assertion of fact. Id. at 21.
Milkovich arose out of a story on a sports page concerning testimony presented at an
investigatory hearing into an altercation at a high school wrestling match. The newspaper stated
in its story that [a]nyone who attended the meet knows in his heart that [the wrestling coach]
lied at the hearing after having given his solemn oath to tell the truth. Milkovich, 497 U.S. at
5. The coach sued, contending the story implicitly accused him of committing perjury. The trial
court granted summary judgment for the newspaper, and the intermediate state appellate court
affirmed on the ground that the statement was an opinion and would have been seen as such
because it appeared on the sports page, a traditional haven for cajoling, invective and
hyperbole. Id. at 9.
The United States Supreme Court granted certiorari and reversed. Holding that there is
no separate constitutional protection for anything that might be labeled an opinion, the High
Court concluded that a statement is actionable so long as its challenged meaning or implication is
Case ID: 140203044
17

sufficiently factual to be susceptible of being proved true or false. Id. at 21. In the case of the
newspaper story, the High Court found that the connotation that petitioner committed perjury is
sufficiently factual to be susceptible of being proved true or false and, was therefore, actionable.
Id.
Following Milkovich, the Pennsylvania Supreme Court held that a newspaper story that
could be read to imply that a prosecutor had abused the power of his office (there, by inflaming
racial tensions to further his personal political ambitions) was sufficiently factual to be
actionable, and any doubt regarding the meaning of the story must be resolved in favor of
allowing a jury to decide the claim. MacElree v. Philadelphia Newspapers, Inc., supra. The
Court further held that an accusation an individual failed to properly carry out his office is
inherently defamatory.
G. MALICE HAS BEEN ABUNDANTLY PLED; EVEN THE DEFENDANT
NEWSPAPERS OWN PUBLISHER KNEW AND CONFIRMED THAT
DEFENDANTS MARIMOW AND McCOY WROTE AN IMPROPER AND
CONTRIVED SMEAR PIECE ABOUT THE PLAINTIFFS

Publisher Robert J . Hall blasted the Philadelphia Inquirers editor, Defendant William
Marimow, and criticized the front-page placement of the story about Plaintiffs, candidly and
remarkably admitting that the story was obviously intended to make the Plaintiffs look bad.
See Amended Complaint at 19-25. Further, it should not be disregarded by this Honorable
Court that The Inquirers publishers reading of the story, i.e., that it was improper and designed
only to make the Plaintiffs look bad, is the same reading of the story which the Plaintiffs proffer
in support of their false light invasion of privacy claims. Yet, ironically, it is this reading of the
article which the Defendants now attempt to paint, through their Preliminary Objections, as
unreasonable. The Inquirers publisher not only set forth his impressions about the article in
his email, but then affirmed his reading of the story when he testified before the Honorable
Case ID: 140203044
18

Patricia McInerney on November 15, 2013. There, he confirmed that the story by The Inquirer
Defendants was written to make J ustice McCaffery and his wife look as though they had done
something improper. See Exhibits 6 and 7 to the Amended Complaint. It is simply
extraordinary for the Defendants to now contend that no malice has been alleged when the
newspapers own publisher has literally stated on two separate occasions, once in writing and
once under oath in a judicial proceeding, that a particular story was obviously deliberately
intended to make the Plaintiffs look bad, and was written to make conduct appear improper,
and that the article was predicated upon how [The Inquirer] asked the question. Indeed, all of
this evidence does not only plead malice, it proves malice.
The Inquirer Defendants efforts to diminish and minimize Publisher Halls email and
testimony is a blatant factual analysis a self-serving recreation of his sworn testimony and his
email that cannot be indulged at the time of preliminary objections. In fact, it should not even
be indulged at the time of summary judgment. Indeed, in their efforts to recast Mr. Halls clear
words and testimony, these Defendants blatantly attempt to sidestep the obvious import of
Publisher Halls position that the story was not fair, was designed to make the J ustice and his
wife appear as though they had done something improper, was written in an improper way
because of how Mr. McCoy asked the questions, and should never have been on the front
page. Specifically, for The Inquirer Defendants to state on p. 25 of their brief that at most,
Halls email establishes that the March 4 article could have been written differently, is
wishful thinking and a blatant and unreasonable mischaracterization of the email. In fact,
Plaintiffs submit that no jury in the world would ever believe that Mr. Halls March email was
only suggesting that the article could have been written differently; if that was Mr. Halls
position, as the publisher of the dominant newspaper in the fifth largest city in the United States
Case ID: 140203044
19

of America, presumably he would have stated precisely that. These admissions from The
Inquirers publisher are in and of themselves sufficient to prove malice. Further, the
Abundance of Malice section of the Amended Complaint, at 69, clearly satisfies any such
legal threshold for preliminary objections.
Finally, the microscopic Amplification, attached to the Amended Complaint as Exhibit P-
2, is further evidence of malice. By publishing the Amplification (whatever that term means),
deep within the newspaper, in small print, and hidden from disclosure by the fact that it had no
title even referring to the Plaintiffs, it is evident that the Defendants did not want the public to
see the Amplification, or relate it to the Plaintiffs in any way. This is prima facie evidence of the
Defendants deliberate and illegal efforts to bury the truth, which is completely consistent with
the way the Defendants published the initial article.
H. THE DEFENDANTS SPECIFIC FACTUAL CHALLENGES
It is difficult to respond to the Defendants briefs because they repeatedly bludgeon this
Honorable Court with general, sweeping statements of First Amendment principles that are not
in dispute in this lawsuit. Stripped of these absurdly far-reaching generalities, the Defendants
respective briefs never get down to the true nitty gritty: does the Amended Complaint allege the
basic elements of a claim for false light/invasion of privacy and defamation? The key factor to
consider at the outset of any discussion regarding the publication of false content is the nature
of the falsity. Specifically, is the publication false, that is, capable of being proved right or
wrong, or is the publication true but selectively publicized in such a manner as to create a false
impression? In the instant case, both apply. See, e.g., Larsen, supra, and Krajewski, supra. The
Defendants printed false statements about the Plaintiffs (capable of being proven untrue to a
Case ID: 140203044
20

jury), and further, selectively published true statements in such a manner as to create a wildly
false impression about the Plaintiffs.
Simply put, there is no way that any reasonable person could read the articles and the
caricature attached to the Amended Complaint and not conclude that the referral fees in question
were somehow related to Plaintiff McCafferys role as a jurist, and further, that there was not
something improper about Plaintiff Rapaports referral fees. Indeed, it is indisputable that the
articles and caricature clearly imply that there is a tie between Plaintiff McCafferys role as a
J ustice and Plaintiff Rapaports role as a referral lawyer, and that the conduct of the Plaintiffs
was illegal or unethical, or both.
The first argument raised by The Inquirer Defendants is that the articles cannot
reasonably be read to state or imply any falsity. This, of course, is completely wrong.
Beginning on p. 14 of their brief and continuing through p. 22, the Defendants attempt to attack
nine (9) instances referenced by the Plaintiffs where falsity has been stated or implied in the
articles. Generally, the Defendants efforts in this regard require this Honorable Court to make
factual determinations based upon the Defendants interpretation of what has been written. As
set forth clearly above, this is highly improper at the preliminary objections stage. In the end,
there is simply no way for any reasonable person to read the articles at issue and not believe that
the Plaintiffs were involved in some sort of despicable conduct that was predicated upon the
abuse of power by Plaintiff McCaffery in exchange for the receipt of referral fees by Plaintiff
Rapaport. This is what the articles intended to convey, this is what everyone who has read the
articles thinks, and this is ultimately why this lawsuit is proper and should be successful.
4

4
Notably, by addressing the nine (9) instances chosen by the Defendants in their Preliminary Objections, the
Plaintiffs in no way agree that the legal analysis is limited to the nine (9) instances specifically raised by the
Defendants. In fact, the Amended Complaint is far more detailed than the Defendants characterization of the nine
(9) instances they chose to discuss.
Case ID: 140203044
21

With regard to the first argument raised by Defendants, it is completely unreasonable to
suggest that the publications do not imply that Plaintiff McCafferys rulings in favor of the firms
that paid Plaintiff Rapaport referral fees are not tied to those referrals. Indeed, if The Inquirer
wanted to be truthful about the report, and not create that false impression, it would never have
tied the referral fees to the $821,000.00 fee whose lawyer or firm never appeared before J udge or
J ustice McCaffery. Instead, The Inquirer starts its story with the $821,000.00 in the headline,
and creates the clear impression that Plaintiff McCafferys vote(s) are linked to referral fees paid
to Plaintiff Rapaport, even though this $821,000.00 fee has nothing to do with Plaintiff
McCaffery. The Defendants simply cannot credibly run from this inescapable conclusion in their
reporting. Simply put, there is a clear implication that J ustice McCafferys votes are tied to his
wifes $821,000.00 referral fee, and that is a blatant and ongoing falsity.
Second, The Inquirer Defendants attempt to sidestep the issue of Plaintiff Rapaports
employment at the time the $821,000.00 referral fee was earned. Court records confirming
Plaintiff Rapaports employment status were publicly available, just as were the court records
upon which The Inquirer Defendants relied as part of their review of the referral fee disclosures.
The Defendants failed to report that Plaintiff Rapaport was not employed within the court system
at the time that the referral was made. Rather, the article stressed in its very first sentence that
she was then employed in Plaintiff McCafferys office.
5
The Inquirer Defendants argue that
Plaintiff Rapaport received the $821,000.00 while she was employed in J ustice McCafferys
chambers. However, referral fees are earned when made, not when received. Indeed, the
Disciplinary Board of the Supreme Court of Pennsylvania has permitted attorneys who have

5
Furthermore, it is axiomatic that at the time the referral was made in 2007, Plaintiff Rapaport would have had
absolutely no idea about the potential worth of the case, or even if the medical malpractice case would be successful.
Indeed, in Pennsylvania, medical malpractice statistics diligently kept by the Administrative Office of the
Pennsylvania Courts confirm that statewide, 78.5% of such cases end up as defense verdicts.
Case ID: 140203044
22

been disbarred and/or suspended to still receive referral fees for referrals that were made prior to
the attorneys sanction; similarly, judges in Pennsylvania are permitted to retain referral fees that
were paid after the respective judges election to the bench but made while the judge was still a
lawyer. The Defendants Preliminary Objections attempt to cover this gaping hole in their
analysis by deliberately referring to when the money was received, not when it was earned,
which of course creates and furthers the impression the Defendants intended, which is that when
the referral fees were paid, notwithstanding that the $821,000.00 referral was made five (5) years
beforehand, J ustice McCaffery was ruling in favor of the referral firms as the fees have come
in. This epitomizes false light reporting, because despite the clear implications to the contrary,
the matter that resulted in the $821,000.00 fee never went to trial or up on appeal, and its lawyer
had never appeared before Plaintiff McCaffery in the more than twenty years he has been a
jurist.
The Defendants brief sidesteps the enormous factual hole which the article deliberately
omitted reporting and indeed exploited in order to reach its desired conclusion, by thereafter
attempting to dismiss the employment issue as being at most, immaterial. See p. 16 of
Defendants Brief. Plaintiffs contend, and this Honorable Court should agree, that there is
absolutely nothing immaterial about properly identifying Plaintiff Rapaports employment
status, especially as it pertained to the proprietary of referral fees, and when the article itself
placed her employment status in its opening sentence and implied an impropriety. Indeed, if the
employment issue is as immaterial as now claimed by The Inquirer Defendants, it would not
have been noted in the articles first sentence, and then there would have been no reason to later
publish the laughable Amplification correcting the earlier deliberate omission. The
Amplification is buried in the newspaper even though, by The Inquirer Defendants own
Case ID: 140203044
23

assertion, the referrals issue was of such public interest as to initially be worthy of page one,
above-the-fold coverage in the Sunday newspaper. Yet The Inquirer Defendants deliberately
buried their correction of the employment issue, making it smaller than its coverage of
Punxatawny Phil, in the obvious hope that none of its readers would see either something
favorable about the Plaintiffs, or that The Inquirers prior reporting the very hook to the story
was false. Any reasonable person can see that burying the Amplification as The Inquirer
Defendants did is very clear and convincing evidence of malice.
Third, the Defendants admit that the March 2013 article never states that neither the
lawyer nor the firm that paid Plaintiff Rapaport the $821,000.00 fee ever appeared before J ustice
McCaffery. Without that fact, the clear implication is that the $821,000.00 fee was obtained
more as a result of something J ustice McCaffery did, when in fact he did nothing, than as a
result of a tragic injury to a young child. This, of course, was exactly what The Inquirer
Defendants intended to convey. To suggest that such an important and crucial fact is not
material to satisfy a falsity burden is laughably without merit.
Fourth, the Defendants dispute the Plaintiffs assertion that the article creates the
impression that J ustice McCaffery ruled on the case in which there was the $821,000.00 referral
fee. In fact, the $821,000.00 referral fee is prominently noted in the byline of the article and, still
on the first page, the article notes that as the fees have come in, McCaffery has ruled on 11
Supreme Court cases in which some of the firms tied to the fees were participants. Of
course, the only fees mentioned in that opening salvo is the $821,000.00. Then, instead of
reporting the fact that Plaintiff McCaffery never ruled on any of the cases involving the payment
of any referral fee, the first article and buried well off the first page merely quietly notes that
there is no indication that Plaintiff McCaffery participated in cases where his wife had
Case ID: 140203044
24

received a referral fee. There, The Inquirer had an absolute obligation, especially in light of the
misleading and twisted page-one coverage, to state affirmatively that Plaintiff McCaffery never
ruled on any of the cases involving any of Plaintiff Rapaports referral fees at any time, nor had
the lawyer who paid the $821,000.00 fee ever appeared before Plaintiff McCaffery. Instead of
being truthful about this critical matter, The Inquirer decided to bury the critical facts deep
within its coverage, and even then, only noted that there was not an indication of his
participation. This is a classic example of a false light portrayal. Thus, as so correctly stated by
Publisher Robert Hall in his email to Defendant Marimow expressing his disappointment in the
story, such coverage makes the conduct of the Plaintiffs appear improper and, of course, a lot
depends on how we [The Inquirer] asked the question. See Exhibit 7 to Plaintiffs Amended
Complaint.
In the fifth prong of The Inquirer Defendants analysis, they dispute the fact that it was
false for the March 4 article to state that J ustice McCaffery never disclosed the fees. The
Defendants strained characterization of this section of the Amended Complaint is completely
wrong. In fact, it was Plaintiff McCaffery who properly disclosed the fees in the first instance.
Plaintiff McCaffery fully complied with all of the financial disclosure requirements for jurists;
without his compliance, there would have been nothing for The Inquirer Defendants to report at
all, much less in such false light. The Defendants were false in their coverage of this issue,
however, because they published a statement that lawyers in the cases say the J ustice never
disclosed the fees. This, of course, is as false as the Defendants reporting. Nowhere in the
Rules governing Pennsylvania appellate courts is a judge or J ustice required to disclose fees
directly to the appellate lawyers appearing before them. Filing completed financial disclosure
forms are exactly and only what is required as a matter of law. However, The Inquirer wrote
Case ID: 140203044
25

about the disclosure issue in such a way as to clearly imply that Plaintiff McCaffery had some
obligation, above and beyond filing his financial disclosure statements, to notify the lawyers who
appeared before him about Plaintiff Rapaports referral fees. Indisputably, that is not the law.
Again, The Inquirer Defendants wrote this in order to make Plaintiff McCaffery appear as
though he was not following the law and not disclosing fees to lawyers when, in fact, Plaintiff
McCaffery had completely complied with every applicable and well-settled law on the topic.
The Inquirer Defendants contend that the context makes the distinction clear. In fact, the
context confirms that the article was written expressly to imply that J ustice McCaffery was not
following the rules even though he was, in each and every instance. There is simply no way that
a reasonable person could read this portion of the article and not believe that J ustice McCaffery
had some duty or rule of law to follow and disclose fees directly to the lawyers appearing before
the Supreme Court. That is exactly what The Inquirer intended, and it is blatantly false.
In the Defendants sixth argument, pertaining to the four (4), or majority, of Supreme
Court J ustice votes necessary to create, uphold or reverse a law or prior decision, The Inquirer
Defendants analysis again deliberately misses the mark. While it is obvious that truthful
reporting of these issues would have disclosed how J ustice McCafferys votes literally cannot,
standing alone, control the law or the outcome of a case, such an analysis would have clearly
dispelled the implication the article created that his votes were tied to the referral fees paid to his
wife. That, however, was and is a truth The Inquirer Defendants did not and do not want to
report. In the final analysis, the only conclusion a reasonable reader of the article can draw is
that the referral fees tainted Plaintiff McCafferys decision-making process, and this is
completely false, especially in the context of the entire article. It cannot be credibly disputed that
the overall impression from the article is one that falsely implies that the referral fees were
Case ID: 140203044
26

corrupting; the referral fees paid to a judge or J ustices wife are illegal and corrupting; that a
judge or J ustice whose wife is receiving referral fees is compromised and corrupted; and
ultimately, that J ustice McCaffery had additional obligations (i.e., to disclose these referral fees
to lawyers) that simply do not exist as a matter of law.
Seventh, The Inquirer Defendants attempt to dismiss the issues raised by their
incomplete coverage of Pa.R.A.P. 3121 by claiming that it is an editorial decision. However,
in the context of all of the other editorial decisions that have been made with respect to the
referral fee issue, it is not coincidence that all of the editorial decisions were cast against the
Plaintiffs and in favor of a conclusion that the Plaintiffs sidestepped the law and/or were
operating unethically. This argument, of course, does not concede that material issues about
whether Plaintiff Rapaport was permitted by law to receive the referral fees is, in fact, an
editorial decision. The Defendants cannot hide behind editorial decisions when they
deliberately sanitize and/or falsely report important, material facts that would help the reader
understand and reach the conclusion that the Plaintiffs conduct has come fully and completely
within all aspects of the law and ethics governing attorneys and jurists. Further, it cannot be
credibly disputed that all of the alleged editorial decisions with regard to the coverage of the
Plaintiffs have tilted toward the side of eliminating any and all exculpatory and favorable
commentary about the Plaintiffs.
In their eighth argument, the Defendants suggest that because the J une 11 and August 18
article regurgitate the falsities of the March 4, 2013 article, they must also not be actionable for
the various unavailing reasons these Defendants have already offered. Conversely, when this
Honorable Court finds that the March 4 article does, in fact, contain the falsities as described
herein and set forth in the Amended Complaint and is capable of being actionable, the
Case ID: 140203044
27

regurgitations in J une 11 and August 18 must similarly be actionable by the Defendants own
admission here.
Finally, in its ninth challenge, The Inquirer Defendants contend that the articles convey
an opinion which is not actionable. This blanket statement is completely contrary to
Pennsylvania law and has been addressed above in Section F.
I. THE CARICATURE IS ACTIONABLE
Defendants Wilkinson and Days, in large measure, regurgitate the preliminary objections
of The Inquirer Defendants by suggesting that 1) the caricature cannot be actionable because it is
an expression of opinion; 2) the caricature was not published with any degree of fault; and 3)
false light claims do not lie for matters of public concern. These preliminary objections have
already all been addressed herein. With regard to the claim that the caricature is not actionable
because it is an expression of opinion, the Plaintiffs have already amply demonstrated that there
is no blanket preclusion in the law that makes an opinion legally off limits in the world of
defamation and false light. See pp. 16 and 17 herein. Further, with regard to the third claim
concerning false light as being unavailable for a matter of public concern, the Defendants have
already conceded that this preliminary objection is without merit and is really being filed to
somehow preserve some issue for appeal. See pp. 14 through 16 herein. This sort of pleading
has no place at preliminary objections and, ultimately, was asserted without any legal basis
whatsoever.
The final preliminary objection of these Defendants, that the caricature was published
without any degree of fault, is belied by the actual facts set forth in the Plaintiffs Amended
Complaint.
Case ID: 140203044
28

The Plaintiffs do not dispute that malice is an element of Plaintiff McCafferys
defamation claim. On the other hand, the Plaintiffs do dispute that Plaintiff Rapaport is a public
official, and at the appropriate time, will fully address that issue once a discovery record has
been established. However, for purposes of preliminary objections and the Amended Complaint,
the inquiry of malice has already been satisfied with respect to Plaintiff McCaffery. Therefore,
the issue of malice, or the lesser standard of negligence, is similarly simultaneously satisfied for
Plaintiff Rapaport. However, by making that assertion, Plaintiff Rapaport does not concede that
she is a public official; again, she is not.
Ultimately, notwithstanding the Defendants verbiage to the contrary, and for the reasons
set forth above in Section G herein, it is impossible to conclude on the face of the Amended
Complaint that actual malice has not been established. Not only has the Defendants coverage of
the referral fee issue been false and grossly misleading, the newspapers own publisher has
acknowledged in writing and in sworn testimony that the story was simply designed to make the
Plaintiffs look bad, and was slanted in such a way so as to be unfair to the Plaintiffs because of
how The Inquirers agents asked certain questions. The Amended Complaint also details with
great precision how the caricature is false. See 49 through 57 of the Amended Complaint.
J. DEFENDANTS MIS-CITE THE RELIABLE SOURCE DOCTRINE
Finally, the Wilkinson/Days Defendants rely upon what they call the reliable source
doctrine, which is actually more correctly referred to as the wire service defense. In support of
their erroneous position, these Defendants claim that if there is a reliable source, then a
subsequent publication cannot be defamatory because the source was reliable, citing Curran v.
Phila. Newspapers, Inc., 439 A.2d 652 (Pa. 1982). This argument fails for at least two reasons.
Case ID: 140203044
29

First, in Curran, the reliable source analysis was predicated upon an analysis of malice
and not on whether reliance upon a prior publication can immunize subsequent defamatory
content. In addition, it is very clear that such a defense is not the law in this Commonwealth.
While the Defendants are reduced to citing North Carolina and Florida cases in support of this
alleged defense, a more detailed analysis can be found in Friedman v. Globe Newspaper Co., 957
F. Supp. 701; 1997 U.S. Dist. LEXIS 3415 (E.D. Pa. 1997). There, the Honorable William H.
Yohn, J r. clearly noted that the wire service defense is currently unavailable under Pennsylvania
law. Id. at 715. In that case, because there was a question of fact whether the subsequent
publication substantially altered the earlier one, or, the subsequent publisher unreasonably
relied upon the first publication, summary judgment was not permissible. Id.
Second, Pennsylvania has adopted the republication rule that subjects the republisher of
a defamatory statement to the same liability as the original publisher would incur. Obviously,
the well-settled republication rule flies completely in the face of the Defendants asserted
reliable source doctrine. The Superior Court stated it best in Mosley v. Observer Publishing Co.,
427 Pa. Super 471, 629 A.2d 965 (Pa.Super. 1993), when it declared:
The republisher of a defamation was subject to liability similar to
that risked by the original defamer. Pennsylvania had adopted the
republication rule by the turn of the century, and no case brought
to our attention suggests that Pennsylvania has abandoned it.
When a newspaper published a newsworthy account of one
persons defamation of another, it was by virtue of the
republication rule, charged with publication of the underlying
defamation. Thus, although the common law exonerated one who
published a defamation as long as the statement was true, a
newspaper in these circumstances traditionally could avail itself of
the truth defense only if the truth of the underlying defamation
were established.

Id. at 477.
Case ID: 140203044
30

Clearly, as set forth more fully herein, there has not been --and cannot be -- any finding
that the underlying defamation has not been, or will not be, determined to be non-defamatory.
See DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 530, 544 A.2d 1345 (Pa.Super. 1988)
(holding that the trial court did not err in charging the jury that [a] newspaper that repeats or
otherwise republishes false and defamatory matter is subject to liability as if it had originally
published it.); Good v. Grit Publishing Co., 36 Pa.Super. 238, 252, 1908 Pa.Super. LEXIS 145
(Pa.Super. 1908) (the words being defamatory, it would not ordinarily be a bar to action for
libel that the report was a truthful recital of what was asserted by others. See also, e.g., Bloch v.
Temple Univ., 1995 U.S. Dist. LEXIS 5750 (E.D. Pa. 1995) (Under Pennsylvania law, each
republication of a defamatory remark constitutes a new cause of action.); ZS Assoc., Inc. v.
Synygy, Inc., 2011 U.S. Dist. LEXIS 55711, *12 (E.D. Pa. 2011) (Pennsylvania has adopted the
republication rule which subjects the republisher of a defamatory statement to the same liability
as the original publisher would incur. citing Medico v. Time, Inc., 643 F.2d 134, 137, 1981 U.S.
App. LEXIS 19737 (3d Cir. 1981)).
For these reasons, the Defendants invocation of the so-called reliable source doctrine
is misplaced.


BY: /s/ Dion G. Rassias
DION G. RASSIAS

Case ID: 140203044
CERTIFICATE OF SERVICE

I, Dion G. Rassias, hereby certify that I caused a true and correct copy of the foregoing to
be served via ECF and first class mail, postage prepaid, upon:

Amy B. Ginensky, Esquire
Michael A. Schwartz, Esquire
Michael E. Baughman, Esquire
Raphael Cunniff, Esquire
Eli Segal, Esquire
Kaitlin M. Gurney, Esquire
Pepper Hamilton, LLP
3000 Two Logan Square
18
th
and Arch Streets
Attorneys for Defendants Interstate General Media, LLC,
William Marimow, Craig McCoy,
Signe Wilkinson and Michael Days

Honorable J ohn M. Cleland
(Address withheld)

BY: /s/ Dion G. Rassias
DION G. RASSIAS, ESQUIRE
Attorney I.D. No.: 49724
1125 Walnut Street
Philadelphia, PA 19107
(215) 592-1000
(215) 592-8360 (facsimile)

Case ID: 140203044

Case ID: 140203044 Control No.: 14053383

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LISE RAPAPORT and

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