HARRISBURG – A three-judge complement of the Superior Court of Pennsylvania upheld the trial court dismissal of a civil suit pitting two families against one another, one caused by a series of events which took place in the wake of a dog-bite attack.
On Sept. 22, Superior Court judges John T. Bender, Maria McLaughlin and Dan Pellegrini affirmed the dismissal of litigation from Christopher Burke, Lauren Yankanich and Tom Yankanich against Jacqueline Kubicek and Richard Kubicek.
“The parents and pet owners are two neighboring families who began a feud after an unfortunate dog-bite incident. In 2016, the parents’ six year-old child, N.K., was bitten on the face by the pet owners’ dog while playing at the latter family’s home. The child was taken to the hospital to receive stitches and the pet owners were cited for harboring a dangerous dog,” Pellegrini said.
“According to the pet owners, they were told by an animal control officer, John Daywalt, that they were only cited because the parents had threatened to sue the police department unless the citation was issued. Ultimately, the pet owners were found not guilty of the cited offense.”
A few months later, Christopher Burke (the father of Lauren Yankanich) saw N.K. playing with another dog in the neighborhood. Burke allegedly began taking photos of the child, because he believed it refuted the Kubiceks’ claims that the bite had left her too traumatized to play with dogs.
When Richard Kubicek heard of that activity from a neighbor, he remarked, “What, do we have a pedophile living across the street now?” Days later, Richard Kubicek confronted Christopher Burke at the pet owners’ home, and after Burke denied taking any such photos, Richard Kubicek responded, “Good, because I thought maybe you were some kind of pedophile.”
Hostility continued into 2017, when the pet owners noticed that the parents had named their wireless network, “FaceEatingDogTown.” Following an exchange in which Tom Yankanich confronted Richard Kubicek whether he had been made disparaging comments about the pet owners to others in the neighborhood, the parents changed the name of their wireless network to “Accosted.” Further, the pet owners accused the parents of egging their car, setting off their car alarm and following them while they walked their dog.
The pet owners filed a complaint alleging five counts against the parents: (I) common law malicious prosecution, (II) invasion of privacy, false light, (III) defamation, (IV) defamation (slander) per se, and (V) intentional infliction of emotional distress, along with punitive damages as to all counts.
The Kubiceks filed preliminary objections in the nature of a demurrer and the pet owners filed an answer to those objections. On Dec. 18, 2017, the trial court sustained the parents’ demurrer with respect to counts I, II, III and V. Those claims were dismissed and the punitive damages request was stricken without prejudice. The parents’ preliminary objection as to count IV was overruled and later dismissed in 2019, along with the rest of the complaint, through summary judgment.
This led Burke and the Yankaniches to appeal to the Superior Court, claiming that the trial court erred in dismissing the case.
“It is undisputed that the pet owners’ dog bit the parents’ child, causing serious injuries that required her to be hospitalized. This alone was sufficient to justify the police’s decision to issue a citation for a violation of the ‘Dog Law,’ which imposes liability on an owner of an animal that has ‘inflicted severe injury on a human being without provocation’ and which has a ‘propensity to attack human beings,” Pellegrini said.
“The parents accurately reported the incident to the police. Accordingly, because, as a matter of law, there was probable cause to support the citation issued to the pet owners, precluding the pet owners from relief, the trial court did not err in granting the parents’ preliminary objection as to the pet owners’ claim of malicious prosecution.”
As to the false light claim’s dismissal Pellegrini found that the statements in the count “were not shown to be false, nor would they cause a reasonable person to take offense” and that there “was no allegation that anyone other than the pet owners ever noticed that the parents renamed their wireless network, “FaceEatingDogTown.”
Pellegrini ruled similarly as to the defamation count.
“The parents could not have made defamatory comments essentially by stating their opinion that the pet owners were guilty of that summary offense. The parents demonstrated the grounds for their opinion by disclosing to their audience the facts which they believed justified it. These facts included pictures of N.K.’s injuries, as well as the undisputed fact that the pet owners’ dog bit the child,” Pellegrini said.
“The parents’ statements do not fit any of the definitions of slander per se. When the statements were made, the pet owners had been cited for harboring a dangerous dog, which is a summary offense that is not punishable by imprisonment. Since the citation was pending at that point, the parents could not have been making a false allegation of a crime or a crime of moral turpitude.”
As to the intentional infliction of emotional distress claim, Pellegrini also found that it was rightly dismissed.
“In this case, the trial court did not err in ruling that the pet owners failed to allege the utterance of statements which rise to the level of extreme or outrageous conduct. We agree with the trial court that the pet owners have alleged ‘typical examples of bickering between neighbors who have animosity towards one another and are clearly not the type of behavior which would cause a community member to proclaim it was ‘outrageous,” Pellegrini said.
Pellegrini also agreed that the slander per se claim as to the “pedophile” comment was dismissed correctly by the trial court.
“The comment would not qualify as a publication because it was made in the presence of only three people, all of whom would have understood the factual basis for the statement. It would have also been obvious to those observers that Kubicek was speaking in hyperbole, not making a serious allegation of criminal conduct,” Pellegrini said.
“With respect to Kubicek’s second use of the word ‘pedophile’ directly to Burke himself, the comment again could not be defamatory or slanderous as a matter of law. The pet owners do not allege that any third parties overheard this exchange, so it was clearly not disseminated to the degree necessary to qualify as a publication. Burke was also fully aware of the facts that gave rise to Kubicek’s statement, so the opinion could not have been based on any undisclosed defamatory facts. Thus, the trial court did not err in granting summary judgment in the pet owners’ favor as to count IV of the complaint, and that ruling must, therefore, stand.”
Superior Court of Pennsylvania case 1015 EDA 2020
Montgomery County Court of Common Pleas case 2017-15922
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com