Defamation suit spurred by false allegations of assault remanded to Phila. Common Pleas Court

By Jon Campisi | May 17, 2012

A federal judge sitting in Philadelphia earlier this month remanded back to state court the case of a woman who filed a lawsuit against a local radio personality for allegedly falsely saying on air that the plaintiff had participated in a fight at her own daughter’s school, a claim that caused the plaintiff to allegedly receive death threats and other hardships.

In late November 2011, Tracey Parson and her business, Kiddie Kare Child Care & Education Center, filed suit at the Philadelphia Court of Common Pleas against Power 99 FM disc jockey Tarsha Jones, Clear Channel Communications Inc. and Capstar Radio Operating Company.

The suit, which contains defamation and other state-law claims, alleges that Jones aired calls on her radio show, titled Jonesy In The Morning, from callers identifying Parson as the mother who participated in an October 14, 2011 fight at the school of her daughter, a melee in which a female student was left seriously injured.

Soon after radio show callers identified Parson as a fight participant, the plaintiff received death threats and her business, Kiddie Kare, open since 2008, was vandalized.

After the suit was filed at Common Pleas Court, the defendants removed the case to the U.S. District Court in downtown Philadelphia based on diversity of jurisdiction.

The plaintiffs followed up by moving to remand the matter to state court, arguing that the federal court lacks subject matter jurisdiction because Parson, like Jones, is actually a citizen of New Jersey.

On Jan. 18 of this year, the federal court granted the defendants leave to conduct expedited jurisdictional discovery regarding Parson’s citizenship, according to background information on the case.

Following discovery, both sides filed briefs in support of their respective positions, with oral arguments on the matter being held on April 13.

In a May 3 memorandum, U.S. District Judge Berle Schiller agreed with the plaintiff, writing that because Parson is a New Jersey resident, “complete diversity of citizenship is lacking.”

Although Parson spends most of her days in Philadelphia, the judge wrote, she makes her official residence in the Garden State.

“Under the circumstances, Parson’s continued ties to Philadelphia do not negate her apparent intention to remain in New Jersey indefinitely,” Schiller wrote. “Moreover, any uncertainties should be resolved in favor of remand.”

Schiller, who wrote that the federal court in Philadelphia would have jurisdiction over the matter only if Parson was a Pennsylvania resident, noted that while the parties agree that Parson was a resident of New Jersey at the time the lawsuit was filed, the critical issue was whether Parson intended to remain a Garden State resident indefinitely, which is integral to the issue of jurisdiction.

At the time the complaint was filed, Parson had been living in New Jersey for nearly three years, although she conducted many of her personal and business activities in Pennsylvania, according to the judicial memorandum.

The memorandum states that Parson often held herself out as a Philadelphia resident in order to take advantage of certain privileges of Pennsylvania citizenship, including public schooling for her children.

Schiller wrote, however, that subject matter jurisdiction can never be created by estoppel, and thus “the propriety of Parson’s behavior is not relevant to the issue of her citizenship.”

Parson’s original complaint was filed by Philadelphia attorneys George Bochetto and Tricia Desmarais Clark, of the firm Bochetto & Lentz.

The complaint states that on the afternoon of Oct. 14, 2011, Parson, while on business in Bensalem, Pa., just outside of Philadelphia, received a phone call from her brother informing Parson that her 14-year-old daughter might have been injured during an altercation with other students from the Walter D. Palmer Leadership Academy.

The altercation occurred at a nearby train station.

Following the incident, the teen was able to safely make it to a Kiddie Kare location to await her mother’s arrival.

Unknown to Parson, following the student altercation, one of the mothers of the girls involved in the incident began cruising the area looking for some of the offenders, the suit states.

That woman ended up participating in an attack on the girls, an incident that police reports indicate involved the use of baseball bats.

Five days after the incident, listeners calling into the Power 99 radio show falsely identified Parson as the mother who unleashed an attack on the schoolgirls, according to the lawsuit.

“No fact-checking or verification procedures of any type were undertaken by Jonesy or Power 99 before airing such calls,” the lawsuit states.

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