Intentional Torts Defamation Per Se Claim Evidence of Damages
Chasan v. Littman et al, PICS Case No. 17-1065 (C.P. Philadelphia June 30, 2017) Robinson, J. (11 pages).
Plaintiff's allegations were sufficient to establish that the defendant attorney's publications accusing him of criminal conduct constituted per se defamation, but he was not absolved of his burden of proving damages. The trial court recommended affirmance of its decision granting defendant summary judgment.
Attorney Gregory Littman represented the plaintiffs in a matter entitled Govberg v. Feierstein. Attorney Bruce Chasan represented the defendant Edward Feierstein. After Littman conducted a precomplaint deposition, Chasan repeatedly urged Littman and his clients not to pursue the matter, claiming it lacked merit. Littman's clients refused and filed a complaint against Feierstein. Chasan's client then filed an answer with a counterclaim against the plaintiffs and Littman personally, seeking attorney fees under Pa.C.S. 2503(9) for vexatious filing of a baseless suit. Thereafter, Littman sent Chasan a Dragonetti notice, asserting that a counterclaim brought by Chasan and his client was baseless, unlawful and a wrongful use of civil proceedings. Littman sent two more letters to Chasan reiterating his claim that Chasan was in violation of the Pennsylvania Rules of Professional Conduct. Significantly, Littman copied several third parties on the three letters. Ultimately, Chasan filed this defamation suit against Littman based on his conduct during the underlying litigation. Littman filed a motion for summary judgment, which the court granted due to Chasan's failure to produce evidence of damages. Chasan filed an appeal, prompting the court's opinion. Chasan noted that the statements in the three letters included allegations of criminal conduct, specifically witness intimidation in violation of 18 Pa.C.S. 4952. This alleged crime could result in imprisonment; therefore, the statements appeared to be per se defamatory on their face. Littman argued that the statements were not per se defamation because they were subject to protection under "judicial privilege." The court found that regardless of which argument should prevail, Chasan was unable to recover for defamation per se because he failed to produce evidence of damages. While per se defamation plaintiffs are not required to plead or prove special damages, they are not absolved of the burden of providing proof of any damages, the court explained. Rather, a defamation per se defendant is liable for the proven, actual harm the publication causes. Chasan claimed reputational damage but produced no evidence to support the claim. His own affidavit merely speculated that he may have potentially suffered damages. Chasan expressed concern about the reactions of those who received the letters and the possibility of being shunned by his peers. The court granted Littman relief because Chasan's personal beliefs about his reputation did not constitute sufficient evidence of damages.