He Can't Buy An Island:
Total Victory in the Sember Case
by Barbara Pierce
The word "libel" has a nasty sound. It means publishing written untruths. In almost forty years of publishing, the Braille Monitor had never been sued for libel--never, that is, until Mary Ann and Tom Sember decided to do it in 1993. Many who have had reason to regret our dedication to the principle of printing the truth have muttered occasionally or even shouted their threats to sue, but they always thought better of the idea until the Sembers took exception to stories that appeared in the March and July, 1992, issues of the Braille Monitor. They had a neighbor and friend who was an attorney in a Pittsburgh law firm, and for reasons best known to himself, he agreed to handle the case for them.
The resulting lawsuit would eventually drag on for more than four years, costing the law firm hundreds of thousands in time, travel, and fees, according to estimates made by attorneys familiar with such things. Now it is finished. Somewhere toward the beginning of the process Tom Sember reportedly told friends that he intended to purchase a vacation island with the money he and Mary Ann would collect from the NFB. Larry Israel, now President and CEO of Telesensory, Inc., has been quoted as commenting that the Federation would learn its lesson this time around.
In the end the lesson has indeed been made clear: when an organization sticks to the facts and reports as honestly as it can what is going on, it is possible to point out unpalatable truths and urge reform. And if you publish those views in a journal, the courts will support your right to argue for change.
Since even those who read the original articles have probably forgotten the details of the situation by this time, we will begin with a brief summary of the problems as we described them in the 1992 stories. We had received complaints from a number of vendors of technology around the country saying that they were finding it virtually impossible to compete with Telesensory, Inc., for business with various state agencies serving blind consumers. In two areas, including Pittsburgh, one family member was working for the state agency, and another was a representative for Telesensory. In Pittsburgh the people involved were Tom and Mary Ann Sember. He was a counselor in the Pittsburgh office of the Bureau of Blindness and Visual Services (BVS), the state vocational rehabilitation agency for the blind in Pennsylvania; Mary Ann sold and serviced Telesensory products in the western Pennsylvania area.
Mary Ann Sember's competitors reported that the Pittsburgh office did not require bids before purchasing equipment. Stories circulated of consumers who requested particular technology but received Telesensory products instead. And, although we had no access to office records, as far as we could tell, Telesensory seemed to be getting just about all of the business generated by the state agency in the greater Pittsburgh area.
No one ever suggested that Tom Sember was overtly directing business to his wife. Regardless of the circumstances, such a thing would have been virtually impossible to prove one way or another. The proprieties were apparently always maintained. In fact, it was clear that, whenever his clients began moving toward a technology purchase, Sember formally handed the case over to a colleague for management during that phase of BVS involvement. Nonetheless, Telesensory got the order. It would have been surprising if anything else had happened. Sember was a colleague; the counselors undoubtedly knew Mary Ann, not only because of her professional relationship to the office as the person supplying most of the technology the counselors ordered, but because of her close personal ties to the staff through her husband.
In this connection it might be noted that as soon as a bidding procedure was imposed on the office, vendors of other technology products began getting orders. But that did not happen until after the Braille Monitor articles were published. All these facts eventually emerged as lawyers began digging through records and documents and interviewing potential witnesses.
A little short of a year after the publication of the first of the two articles, the Sembers went to court to serve summonses on a whole string of people and organizations. By Pennsylvania law the Sember lawyer could then conduct discovery before actually filing complaints, which he did on July 20, 1993.
In response the defendants then filed a motion for summary judgment, which in effect asked the court to throw out the case before it went to trial. Summary judgment is very rarely granted, but to our gratification that is precisely what the judge eventually did on January 31, 1996. Despite this indication of the strength of the defendants' case, the Sembers appealed the decision to the Superior Court of Pennsylvania, but that court upheld the lower court's ruling. Apparently still hoping they had a chance to get their vacation island, the Sembers petitioned the Pennsylvania Supreme Court to hear their appeal of the summary judgment. On September 2, 1997, the Pennsylvania Supreme Court gave its decision. It was another (and obviously a final) defeat for the Sembers--no finding of libel, no violation of the law, no island. In other words the Sembers' case was found to have so little merit that, not only was it never tried, but three courts refused to waste time even beginning the process.
Dan Goldstein, the NFB's lead attorney in this case, wrote a summary of the legal steeplechase that consumed four years of the Sembers' lives and a great deal of their lawyer's time and money.
This is the way Dan Goldstein described it:
On February 24, 1993, Thomas and Mary Ann Sember filed summonses to be served on the National Federation of the Blind; the National Federation of the Blind of Pennsylvania; Theodore Young, the President of the National Federation of the Blind of Pennsylvania; his company, Young Opportunities, Inc.; Humanware, a competitor of TeleSensory; Edward Smith, a salesman for Humanware; Bob Jakub, a blind man in Pittsburgh who sold Arkenstone and other computer products; and Bob Jakub's company, Genesis Computer Services. Under Pennsylvania's unique court rules, discovery may take place without a complaint's having been filed if a summons stating the intent to file a complaint has been served. Before filing their complaint and making their claims, the Sembers wanted to know what information the Pennsylvania Auditor General and the State Board of Ethics had about them in their files. The Office of the Auditor General produced its file, but the State Board of Ethics refused to do so, contending and being sustained in its contention, that its files were confidential and did not have to be produced.
Finally, after waiting five months, the Sembers filed their complaint on July 20, 1993. All the parties, they said, had libeled them--that is, participated in publishing written untruths about them that damaged their reputation. Moreover, the parties had slandered them, they said--that is, uttered damaging untruths about them. (Because the Sembers did not specify what those oral statements were, the slander counts were promptly dismissed.) In addition, the Sembers claimed that their privacy had been invaded by their having publicly been put in a false light. Ms. Sember also claimed that the defendants had intentionally interfered with her contracts and those she might have had and that the defendants had disparaged her goods and services. Finally, this thirty-one-page complaint said that the defendants had engaged in a conspiracy to harm the Sembers.
When the court required the Sembers to dismiss the slander count, the Sembers added, for good measure, a claim that the defendants had intentionally inflicted emotional distress on them, a claim normally reserved for conduct so outrageous as to fall outside the bounds of civilized conduct! All of these claims were based on two Monitor articles (one appearing in March, 1992, and the other in July, 1992); a resolution by the National Federation of the Blind of Pennsylvania asking the Auditor General of the state to look into the purchasing practices of the Pittsburgh Office of the Bureau of Blindness and Visual Services (BVS); and Ted Young's letter to the Auditor General following up on the resolution.
Bob Jakub had the questionable pleasure, as one of his last experiences on Earth, of being deposed in this case. The day before he was scheduled for surgery to amputate his remaining leg, his deposition was taken by the Sembers in Jakub's living room. Jakub, who had sold a grand total of two Arkenstone readers to the Pittsburgh Office of BVS, said that he kept asking BVS why it didn't even let him bid and that that is what he had told Barbara Pierce. Bob Jakub entered the hospital the next day and died following surgery. The Sembers then substituted his estate in their complaint and continued the case against him.
Edward Smith, the Humanware salesman, was deposed as well. He said he did not get business from Pittsburgh BVS until after the Monitor articles, despite making frequent presentations. Smith explained that he had never talked to Dr. Jernigan or Barbara Pierce about the Sembers or TeleSensory, but that when Ted Young had called him, he told Young there were three times when his equipment had been recommended, and each time TeleSensory equipment had been bought instead. After the lawyers for Ed Smith and Humanware sent an interrogatory (a written question requiring a sworn written answer), asking the Sembers to detail what Smith and his company had done that they could be sued for, and after they did not get an answer and asked the court to require an answer, the Sembers dropped Ed Smith and Humanware from the case.
As the case progressed toward trial, counselor after counselor from the Pittsburgh Office of BVS acknowledged that until the Monitor articles and the beginning of competitive bidding, if TeleSensory sold the kind of product needed, they went to Mary Ann Sember and bought it, although each offered different reasons for doing so. The records of Pittsburgh BVS (enough to fill a file cabinet) confirmed that Mary Ann Sember had the lion's (or perhaps more accurately the lioness's) share of the business of Pittsburgh BVS. Mr. Sember admitted that on occasion he had some involvement with the selection of equipment for his clients and that the equipment came from TeleSensory, though not from his wife in every instance. Ms. Sember, when asked under oath, said that the problem with the Monitor articles was what they did not say. She could not point to a single statement about her or her husband that she could say was untrue.
Finally the matter came before the court on the defendants' motion for summary judgment. A motion for summary judgment, when granted, means winning without a trial. It is, accordingly, rare since every citizen is entitled to have disputed facts resolved at a trial. To win a motion for summary judgment, a party has to be able to show not just that no facts that matter are in dispute but that on the undisputed facts he or she is entitled to win. The party must also show that, even giving every inference from the undisputed facts to the other side, the moving party is still unquestionably entitled to win. That is exactly what happened here. The judge looked at the undisputed facts and threw out the Sembers' entire case.
The Sembers, unhappy with the trial court's decision, filed an appeal with the Superior Court of Pennsylvania. The Superior Court, just like the trial court, concluded that the defendants had done nothing wrong and affirmed the trial court's decision.
In a last-ditch effort to bring their case to trial, the Sembers petitioned the Supreme Court of Pennsylvania to hear their appeal. On September 2, 1997, the Supreme Court of Pennsylvania denied their petition.
There you have Dan Goldstein's summary of what actually happened over these four long years. The only assessment of the substance of this case's merit was rendered by Judge R. Stanton Wettick, Jr., of the Court of Common Pleas of Allegheny County. His January 31, 1996, ruling to grant summary judgment to the National Federation of the Blind and others (the defendants) against Tom and Mary Ann Sember (the plaintiffs) was clear and definitive. But it was a great deal more than that. Because of its importance to the NFB and to our commitment to protecting the rights of blind people, we are reprinting the ruling in its entirety, except that for clarity we have omitted the case citations. Here is what the judge said:
MEMORANDUM AND ORDER OF COURT
Defendants have filed motions for summary judgment seeking dismissal of plaintiffs' remaining claims. (Plaintiffs have withdrawn their claims against Ed Smith and Humanware, Inc. Plaintiffs have also withdrawn Counts XII (Slander), XIII (Slander), XIV (Intentional Infliction of Emotional Distress), and XV (Intentional Infliction of Emotional Distress). In addition, plaintiff is not pursuing a claim that defendants interfered with any actual business relationships--Count IX is limited to intentional interference with prospective business relationships.)
During the relevant times plaintiff Thomas Sember was employed as a counselor in the Pittsburgh Office of the Pennsylvania Bureau of Blindness and Visual Services (BVS). Counselors deal with the needs and concerns of visually impaired clients which may include the evaluation, selection, and purchase of adaptive electronic equipment.
During the relevant times plaintiff Mary Ann Sember was the sales representative for TeleSensory, Inc., in Western Pennsylvania. TeleSensory is a national company whose business is limited to the manufacture and sale of products for the visually impaired; TeleSensory manufactures and sells adaptive electronic equipment. During the relevant times the Pittsburgh office of BVS almost always purchased TeleSensory's electronic equipment from Ms. Sember whenever TeleSensory manufactured the type of electronic equipment that would be appropriate for a client. Competitors' electronic equipment was almost never purchased.
Mr. Sember did not make purchases from his wife. Whenever he determined that his client might need a product which TeleSensory manufactured, he referred the client to another counselor in the Pittsburgh office.
This lawsuit arises out of publications that criticized the Pittsburgh BVS office for doing business almost exclusively with TeleSensory. The publications state that, whenever TeleSensory manufactures a type of product needed by the client, the Pittsburgh office almost always purchases the product that TeleSensory manufactures; the office does not select products offered by competing manufacturers that would also be appropriate.
These publications state that Mr. Sember is a counselor in the Pittsburgh Office of BVS, that Ms. Sember is the TeleSensory sales representative for Western Pennsylvania, and that Mr. Sember and Ms. Sember are husband and wife. The publications opine that this relationship is a reason why TeleSensory's competitors cannot do business with the Pittsburgh office of BVS.
COUNTS I, II, III, AND IV
These counts are defamation claims against the National Federation of the Blind (NFB); the National Federation of the Blind of Pennsylvania (NFB of Pa.); and Theodore Young, President of NFB of Pa., based on articles appearing in the March, 1992, and July, 1992, publications of the Braille Monitor. The Braille Monitor is a national publication of NFB. Plaintiffs' claims against Theodore Young and NFB of Pa. are based primarily on Mr. Young's providing information utilized in the March, 1992, Braille Monitor articles and encouraging NFB to publish these articles.
At pages 32-34 of their brief, plaintiffs set forth the portions of the March, 1992, article that they primarily rely upon to support their defamation claim.
In the instant matter [plaintiffs' brief states], the Defendants combined and conspired in publishing an article entitled "Concerning Integrity, Monopoly, and TeleSensory" in the March, 1992, edition of the Braille Monitor, a periodical distributed throughout the nation and the Commonwealth of Pennsylvania. The first three paragraphs of that article read as follows:
"In Pittsburgh," as more than one person told us, "it doesn't matter how good your technology is or how low your prices. It doesn't matter about the quality of your service or the support you give your technology. If you aren't selling products made by TeleSensory, you can't do business with the state rehabilitation agency"--which is known as BVS, or the Bureau of Blindness and Visual Services. This is what we were told by a frustrated vendor of high-tech equipment for the blind and what we heard echoed by many others. What this vendor of technology did not say (but everybody knows) is that the TeleSensory sales representative in Pittsburgh, Mary Ann Sember, is married to Tom Sember, a counselor in the state agency's Pittsburgh office.
In New Jersey the TeleSensory sales representative has a daughter who works for the state agency. The family relationship is different, but the pattern is the same. State business goes to TeleSensory regardless of cost, performance, or quality of service.
The arrangement is cozy for those who are part of the inner circle, but if the same situation occurred in military procurement, it would be front-page scandal with everybody crying foul. Here, however, only blind clients are being hurt--along with small business operations (mostly owned by blind people). Since those who are being denied the right to compete are not big-time operators with major bucks and political clout, such complaints as have surfaced have largely been ignored.
Kenneth Jernigan & Barbara Pierce, "Concerning Integrity, Monopoly, & TeleSensory," the Braille Monitor, March, 1992 The article later states:
At a time when rehabilitation money is in short supply everywhere in the country for the purchase of technology that blind people need to become or remain competitive, why do so many state agency counselors insist on buying equipment from a company with a nationwide reputation for slow and unresponsive support service and prices higher than those of the competition? Why is this done even when blind clients request alternative technology that they think will serve their needs better? Some say that the answer lies in a combination of history, sloth, and inertia--the fact that TeleSensory (formerly TSI) has been in the field longer than most of its competitors and is bigger than the rest of them. Others (whether correctly or not) cut through the niceties and call it collusion and skulduggery.
The article further states that:
For the most part, we are told, the Pittsburgh counselors buy TeleSensory equipment. And the only TeleSensory representative in the area is Mary Ann Sember, the wife of one of the office counselors. No one has suggested that money is changing hands, but old habits are hard to break--and pressures to conform to established practice do not have to be overt in order to be effective.
Finally, the article concludes with the following paragraphs:
TeleSensory is not the only game in town, and the blind users of technology will no longer settle for having their informed views ignored. When unsavory business practices exist, we will do our best to put an end to them.
It is not appropriate to funnel state business to one producer, whose prices are high and whose service is slow to nonexistent. When that producer's sales representatives have direct family ties to the agencies of government that make the purchases, then the consumers, the competing vendors, and the general public will inevitably draw their own conclusions about what is happening.
[After this quotation from the brief of the plaintiffs and their quotations from the March, 1992, Braille Monitor, Judge Wettick continued as follows:]
The July, 1992, issue of the Braille Monitor revisited the subject of the March, 1992, article in a report titled, "The Pot Boils and TeleSensory Stews." In their brief at page 35 plaintiffs cite an additional provision in this issue:
This article [the Sember brief says] also replied to TeleSensory's rebuttal to the original March, 1992, publication. This response stated, in part:
In the first place, what possible difference does it make whether "Mary Ann Sember is an independent distributor, not a TeleSensory employee?" The fact still remains that she sells TeleSensory equipment and that her husband is a counselor in the Pittsburgh office of the state agency for the blind, which buys the equipment. Quibbles and technicalities won't cut it. It may, as Bliss [Dr. James Bliss, head of TeleSensory at the time] insists, be true that "Tom Sember does not have any involvement in the purchase of products from TeleSensory"--but again, technicalities won't cut it.
[After these quotations from the brief of the plaintiffs and from the Braille Monitor, Judge Wettick said:]
In an action for defamation a court must initially determine whether the challenged statements are capable of a defamatory meaning. [citation] In making this determination, it is not sufficient that a plausible innocent interpretation of the statement exists; the issue must proceed to the jury if there is an alternative defamatory interpretation. [citation] A statement is defamatory if it ascribes to another "conduct, character, or a condition which would adversely affect her fitness for the proper conduct of her lawful business, trade, or profession." [citation]
Plaintiffs contend that the portions of the articles quoted above when read in conjunction with the entire text of both articles are capable of a defamatory meaning. These articles, according to plaintiffs, accuse plaintiffs of engaging in improper conduct. In their brief plaintiffs state that the "clear import of these statements is that business awarded through the Bureau of Blindness and Visual Services of the Commonwealth of Pennsylvania goes to TeleSensory not based on cost, performance, or quality of service, but rather as a result of complicity and conspiracy on the part of both plaintiffs." [This quotation is taken from the plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment at 35, as is the following.] The articles insinuate "that she [Ms. Sember] and her husband improperly influenced BVS purchasing policies and the supply of equipment to clients." The March article implies that money is "changing hands." The articles imply that Mr. Sember "was `in cahoots' with the other BVS counselors, who may have been receiving some sort of compensation for purchasing from Ms. Sember." The articles imply that "the plaintiffs conspired between themselves and colluded with other counselors to benefit themselves." The articles insinuated that plaintiffs "exerted influence to force BVS counselors to purchase from TeleSensory." The articles' reference to collusion and skulduggery indicates that the authors possess undisclosed defamatory facts showing that plaintiffs are "engaged in dishonest, underhanded, unfair, or unscrupulous behavior or activity"; that TeleSensory receives BVS's business "because of a collusive agreement between the Sembers"; and that there is "clandestine cooperation between the Sembers."
[After the quotation from the plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment, Judge Wettick said:]
I disagree with plaintiffs' characterization of the articles. These articles state that TeleSensory obtains more business from the Pittsburgh office of BVS than its products deserve and that the distributor for TeleSensory's products in the Pittsburgh area is the wife of a counselor who works in the Pittsburgh office of BVS. In these articles the authors express their opinion that plaintiffs' relationship as husband and wife is a reason why TeleSensory receives more business than its products deserve and that TeleSensory receives favored treatment because it employs Ms. Sember to sell its products. However, these articles do not suggest that Mr. and Ms. Sember are engaging in any dishonest or unscrupulous conduct. The articles are critical of the other counselors and staff members within the Pittsburgh office for giving preferential treatment to TeleSensory because its sales representative is married to a counselor who works in the office.
Ms. Sember is the representative for TeleSensory products within the Pittsburgh area. Her job is to persuade counselors and other staff within the Pittsburgh office of BVS to purchase TeleSensory products. She is very effective; plaintiffs acknowledge that at the time the articles were written the Pittsburgh office of the BVS purchased almost no products from TeleSensory's competitors. The claim that Ms. Sember managed to dominate the market because she is the wife of a counselor does not reflect adversely on her character or integrity. She is not accused of engaging in any impermissible conduct. The only charge is that the other counselors and staff give her favorable treatment because she is married to a co-employee.
It is not unusual [Judge Wettick continued] for law firms, architect firms, and other businesses that provide goods and services to governmental bodies to make political contributions and to hire the political supporters and relatives of elected officials. When these law firms, architect firms, and other businesses obtain governmental business, newspapers regularly report this fact. This is a typical example:
The ABC law firm was hired as bond counsel for the Commonwealth of Pennsylvania. This law firm was a major financial contributor to the Committee to Re-elect the Governor. Sarah White, a senior partner in the law firm, was the campaign manager for the governor during last year's campaign.
At the most, such an article is suggesting that the law firm obtained the bond business because it has a connection with the Governor that other law firms do not have. The article cannot be read as asserting that either the law firm or the Governor engaged in any unethical or dishonest conduct.
This is equally true in the present case. The articles are accusing the Pittsburgh office of giving favored treatment to Mary Ann Sember because she is married to a counselor who works in the office. She is not being accused of engaging in any unethical or dishonest conduct in order to become the recipient of the favored treatment.
Also the articles do not describe any unethical or dishonest conduct on the part of Mr. Sember or suggest that the authors possess defamatory facts regarding Mr. Sember that they did not disclose. Mr. Sember is not accused of placing orders with his wife. Neither is he accused of directing or persuading others to place orders with his wife. It is not claimed that he has supervisory responsibility regarding purchases in the Pittsburgh office. The claim is that the Pittsburgh office has not developed a bidding procedure. Consequently the staff gives favored treatment to Ms. Sember because of her relationship with Mr. Sember.
Plaintiffs contend [the judge continued] that the statement that no one "has suggested that money is changing hands, but old habits are hard to break" insinuates that money is changing hands. This is an incorrect reading of the statement. The statement is made in the context of the Pittsburgh office's being in the habit of recommending only TeleSensory products. This is a habit, according to the article, that may have developed when there were few competitors in the field. The article suggests only that TeleSensory's use of Ms. Sember as its representative in the Pittsburgh area makes it more difficult for the Pittsburgh office to break its old habits.
The statement that "Others (whether correctly or not) cut through the niceties and call it collusion and skulduggery" is not aimed at the Sembers. The statement refers to TeleSensory's practice of utilizing family ties and other methods to dominate the markets in Pittsburgh, New Jersey, and New York. The thrust of this article is that TeleSensory utilizes sales methods that permit it to obtain a greater share of various markets than the quality of the products justifies. The Sembers are an example of "family ties," which is one of the methods that TeleSensory is accused of utilizing.
Plaintiffs appear to be arguing that the articles suggest that the authors know of defamatory facts concerning the Sembers that they did not include. I disagree. These are not articles in which the authors appear to be withholding any facts that will support their opinions. The only fair reading of the articles is that TeleSensory's sales methods described in the articles have permitted TeleSensory to dominate the Pittsburgh market (as well as other markets). The articles do not suggest that the Sembers are engaging in any dishonest or unscrupulous conduct that the articles do not describe.
In summary [the judge said], most citizens believe that governmental bodies should make decisions involving the purchase of goods and services strictly on objective criteria through a process in which every competitor has an equal opportunity to be selected. A charge that one competitor appears to be receiving favored treatment does not suggest that anyone is engaging in dishonest or unscrupulous behavior.
Ms. Sember is permitted to attempt to persuade persons in the BVS office (other than her husband and persons whom he supervises) to select TeleSensory products for their clients provided that she does not involve her husband, directly or indirectly, in the transaction or offer favors in return for the selection of her products. The Braille Monitor articles cannot be fairly read as insinuating that Ms. Sember is either involving her husband in any transactions or offering favors to persons who purchase her products. Consequently the articles do not accuse her of any wrongdoing. They simply accuse the Pittsburgh office of giving undue consideration to Ms. Sember because she is the wife of a fellow employee.
It is Mr. Sember's position [the judge continued] that under the law he is permitted to provide services to his clients as long as he removes himself from the case whenever his wife's product is recommended for that client. There is nothing in the articles suggesting that Mr. Sember remains involved in transactions after his wife's products are recommended for his clients. The articles do not claim that Mr. Sember is making any purchases from his wife. The articles do not claim that Mr. Sember is putting pressure on persons within the office to purchase TeleSensory products. A reasonable reader would not conclude [the judge said] that Mr. Sember is being accused of engaging in such conduct because the entire thrust of the article is that family ties, in and of themselves, will create an atmosphere in which TeleSensory's products will dominate the market.
The articles criticize TeleSensory for using family relationships and other methods that have, in the opinion of the authors, resulted in its products' being selected for reasons other than the merit of the products. The criticism against TeleSensory is that it is taking advantage of the persons whom it purportedly serves (the visually impaired) by utilizing these methods.
The articles criticize the Pennsylvania BVS for allowing the situation to exist. The articles indicate that family ties will not have the impact that TeleSensory desires if the Pennsylvania BVS would require its purchasing agents to seek bids before purchasing electronic adaptive equipment and if it would begin to recognize that TeleSensory is no longer the only game in town.
The articles do not criticize plaintiffs. They are described as the beneficiaries of a purchasing pattern that is likely to emerge if the largest manufacturer of equipment for the visually impaired sells its products through relatives of employees of state governmental agencies who service the visually impaired and if the state agencies do not have in place a system for selecting equipment that gives all competitors an equal opportunity to sell their products.
Because I conclude [the judge said] that the statements upon which plaintiffs rely are not capable of a defamatory meaning, I am dismissing Counts I through IV without considering defendants' additional argument that recovery is impermissible except upon a showing of malice and that plaintiffs' evidence would not support such a finding.
COUNTS V, VI, VII, AND VIII
These are invasion of privacy claims brought by both plaintiffs against NFB, NFB of Pa., and Mr. Young.
In their brief plaintiffs state that the cause of action for invasion of privacy is comprised of four 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 false light. [citation] Plaintiffs state that they seek to recover under the tort of publicly placing a person in false light. [citation] They rely on 15652E of the Restatement (Second) of Torts, which reads as follows:
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.
Plaintiffs base their invasion of privacy claims on the same statements upon which they base their defamation claims. Plaintiffs cannot recover under =15652E because of the requirement that the publicity place them in a "false light" of a kind "highly offensive to a reasonable person." As I previously discussed, the facts in these statements regarding the Sembers are accurate. Thomas P. Sember is a counselor in the Pittsburgh office of BVS. He and Mary Ann Sember are married to each other. Mary Ann Sember is the sales representative for TeleSensory products in the Pittsburgh area. The Pittsburgh BVS office purchases almost exclusively TeleSensory products.
Furthermore [the judge continued] the statements regarding plaintiffs are not highly offensive. According to plaintiffs, the articles, when read as a whole, falsely accuse Mr. and Mrs. Sember of engaging in very serious improprieties of a kind that would be highly offensive to a reasonable person. I reject this contention for the reasons set forth in my discussion of the Defamation Counts.
This is a claim by Ms. Sember against all defendants for interference with prospective business relationships. This claim is based on the same publications upon which plaintiffs base their defamation and invasion of privacy counts.
The initial problem with this claim [the judge said] is the absence of any evidence establishing that the publication of these articles damaged Ms. Sember. In her brief at pages 90-91, Ms. Sember refers to decreased sales to the Allegheny Intermediate Unit ("AIU") and to the Pittsburgh, Erie, and Altoona BVS offices. She testified that these sales have dramatically decreased since 1992. She cites actual sales figures to BVS/AIU of $289,000 in 1990, $273,000 in 1991, $202,000 in 1992, and $154,000 in 1993. However, Ms. Sember does not offer evidence from anyone at BVS or AIU indicating the reasons why her sales declined. For example, during this period the Pittsburgh BVS office was moving to a bidding system for the purchase of the higher priced products. This could be one of many explanations for the decline in the sales.
A plaintiff can prove actual harm [Judge Wettick continued] by showing only that her sales declined where it is not possible to identify the persons who may have been influenced by the publication. But where the claim is made that the plaintiff lost sales to specific customers, the plaintiff must introduce evidence showing that these customers were substantially influenced by the publication. [citation]
The tort of intentional interference with prospective contractual relations [the judge went on to say] requires that plaintiff establish a prospective contractual relationship and actual damages to the relationship resulting from defendants' conduct. Plaintiff did not have a contract with the BVS or AIU. Consequently her future sales depended upon the needs of BVS/AIU; available governmental funding; the type, quality, and prices of products that would be offered by TeleSensory and other companies; the methods that BVS/AIU followed in making its purchases; and the marketing approaches and services offered by TeleSensory and its competitors. There are too many variables to permit a finding that the articles in the Braille Monitor are an explanation for the decline in plaintiff's sales to BVS/AIU.
There are other difficulties with plaintiffs' tortious interference claims. Pennsylvania recognizes a cause of action for intentional interference with prospective contractual relations. In order to recover, the plaintiff must establish the following elements: (a) the existence of a prospective contractual relationship between the plaintiff and a third party, (b) the defendant acted for the purpose of causing a specific type of harm to plaintiff, (c) the act was unprivileged, and (d) actual harm resulted. [citation]
Plaintiff may be claiming that she lost potential sales because the articles prompted BVS to institute competitive bidding. However, this would be a privileged act; defendants were entitled to make statements intended to persuade a public body to alter its purchasing procedures in a manner that would, in the opinion of defendants, result in a more objective process.
With respect to NFB, NFB of Pa., and Mr. Young, the evidence does not support a finding that they acted for the purpose of causing harm to plaintiffs. They were not seeking to dissuade BVS or anyone else from doing business with Ms. Sember whenever the TeleSensory product was the best choice for the client. They were not asking that any competitors of Ms. Sember receive preferential treatment. They simply wanted BVS to base its decisions on the quality of the product and pricing.
Plaintiffs' claim against Mr. Jakub and Genesis Computer Services fails because any actions that they took were proper actions of a competitor. [citation] Mr. Jakub was a competitor. He believed that he did not have the same opportunity as Ms. Sember to submit bids and to persuade BVS staff to purchase his products. He never alleged that Ms. Sember had engaged in any dishonest or unscrupulous conduct. His complaint was that BVS had not given him the same opportunities afforded to Ms. Sember.
He contributed to the articles in an effort to persuade BVS to adopt a more objective system for purchasing products. As a competitor, his conduct is proper.
For these same reasons plaintiffs' claim against the Young Opportunities, Inc., and Mr. Young as its principal owner also fails.
COUNT X--INJURIOUS FALSEHOOD
Ms. Sember has brought a claim against all defendants for injurious falsehood. She alleges that the statements in the March and July, 1992, Braille Monitors contained false and disparaging statements that were designed to prevent others from dealing with her to her business disadvantage.
The provisions of the Restatement (Second) of Torts governing a disparagement of title claim are set forth in =15623A and =15624, which read as follows:
15623A. Liability for Publication of Injurious Falsehood--
One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity.
15624. Disparagement of Property--Slander of Title
The rules on liability for the publication of an injurious falsehood stated in 15623A apply to the publication of a false statement disparaging another's property rights in land, chattels, or intangible things that the publisher should recognize as likely to result in pecuniary harm to the other through the conduct of third persons in respect to the other's interests in the property.
Plaintiff [the judge continued] bases this claim on the same publications. This claim fails for several reasons. First, for the reasons that I previously discussed. The statements were not published to harm the legitimate interests of Ms. Sember. Her interest was in making sales whenever the TeleSensory product would best serve the needs of a BVS client or other sight-impaired person. Defendants were not intending to harm these interests.
Second, for the reasons that I previously discussed, there were no false statements regarding Ms. Sember. She was not accused of engaging in any dishonest or unethical conduct.
Third, there were no false statements regarding the products she sold as TeleSensory's sales representative (even assuming that she could recover if there were false statements regarding the quality of TeleSensory's products). The articles simply expressed the opinions of the writers that, as to certain products, TSI's competitors offered better service, better prices, and/or a superior product. (Ms. Sember also states that the articles cast doubt on the quality and propriety of her sales ability. Even assuming that injurious falsehood as to her sales ability could serve as the basis for recovery under 15624, for the reasons I previously discussed, the articles do not question the quality or propriety of her sales ability.)
COUNT XI--CIVIL CONSPIRACY
This count fails because there can be no recovery without showing that two or more persons harmed plaintiffs through an agreement to perform unlawful acts or lawful acts by unlawful means. Since plaintiffs have not established that any of the defendants engaged in any improper conduct, any concerted activities in which they engaged were lawful.
For these reasons, I enter the following order of court:
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION
THOMAS P. SEMBER and MARY
ANN SEMBER, his wife, Plaintiffs
NATIONAL FEDERATION OF THE BLIND, a corporation; HUMANWARE, INC.,a corporation; GENESIS COMPUTER SERVICES; THE YOUNG OPPORTUNITIES, INC., a corporation; ED SMITH, an individual; BOB JAKUB, an individual; THEODORE YOUNG, an individual; NATIONAL FEDERATION OF THE BLIND OF PENNSYLVANIA, INC., a corporation, Defendants
ORDER OF COURT
On this 31st day of January, 1996, upon consideration of defendants' motions for summary judgment to plaintiffs' complaint it is hereby ORDERED that these motions for summary judgment are granted and that plaintiffs' complaint is dismissed as to all defendants.
BY THE COURT WETTICK, J.
That was Judge Wettick's ruling granting summary judgment, and with it the case was, for all practical purposes, finished. The Sembers would appeal his decision to the Superior Court of Pennsylvania, and their arguments would have to be countered by our attorneys. But by that time the evidence had been gathered, the depositions taken, and the documents combed for useful facts. Such activity is exciting in John Grisham novels and is apparently interesting to lawyers, but speaking as one who had never before undergone the deposition process, I can report that two and a half days of precisely answering rambling, ill-constructed questions by opposing counsel was both tiring and unproductive. I can't imagine that the Sembers enjoyed facing Dan Goldstein's tough questioning either; yet, they were clearly hoping that they could persuade the courts to send us all into a trial--which even though it might be unpleasant and time-consuming, would give them some money, as well as justifying past BVS action. It didn't happen that way. If the vacation island was ever a dream, it is still a dream--one that may have to wait for some other engine of propulsion than the one that was employed.
Happily, the courts of Pennsylvania understood that there really was no case to be tried. The final judicial statement by the Pennsylvania Supreme Court on September 2, 1997, was the shortest of them all, and possibly the most painful to those who had pinned their hopes on the lawsuit. All the accusations of defamation, libel, and the rest; all of the claims that the Braille Monitor had twisted the facts and implied what wasn't so--all these dissolved into thin air with the ruling of the Supreme Court of Pennsylvania. Here is what it said:
ORDER PER CURIAM
And now this second day of September, 1997, the Petition for Allowance of Appeal is DENIED.
That was it--total victory for the National Federation of the Blind. Those who contemplate suing the Braille Monitor in the future should take note of what the courts of Pennsylvania said. Castles in Spain, pie in the sky, and enchanted vacation islands are hard to come by.