MEDIA – Defense counsel is seeking plaintiffs provide reasoning for their lack of response to discovery requests, or face sanctions, in a defamation case brought by a former member of the Borough of Eddystone’s Civil Service Commission against the borough’s mayor and one of its council members.
Dawn Jones first filed suit in the Delaware County Court of Common Pleas on June 9, 2021 versus Brookhaven Council President Terry Heller and the Borough of Brookhaven. All parties are of Brookhaven.
“On or about Sept. 23, 2020, defendant Heller, while acting as Council President for defendant Borough, distributed and/or circulated a letter stating that plaintiff had engaged in ‘habitual intemperance’ as well as ‘conduct unbecoming a member of good standing with the [Brookhaven Borough] Recreation Board,” the suit said.
“On or about Sept. 25, 2020, defendant Heller, while acting as Council President for defendant Borough, published statements and false accusations, pertaining to plaintiff, on defendant Heller’s public Facebook page. On or about May 18, 2021, defendant Heller, while acting as Council President for defendant Borough, wrote on his public Facebook page, in reference to plaintiff, ‘Good morning chief. Better hold your wallet tight.'”
The suit stated that the aforesaid statements and allegations made by defendant Heller were false insofar as they related to plaintiff, and that Heller “knew or should have known that the above statements were false when made and that said conduct was extreme and outrageous as to go beyond all possible bounds of decency.”
“The statements and actions of defendant Heller, acting as Council President of defendant Borough, were made in the regular course and scope of his employment. The statements, conduct, and actions of defendant Heller caused emotional distress to plaintiff,” according to the suit.
“The slanderous, libelous, and defamatory statements were made by defendant Heller, within the course and scope of his duties as agent, employee and Council President of defendant Borough.”
After nearly nine months, the defendants filed an answer along with new matter in the case on March 2, denying that any statements made were slanderous, libelous or defamatory.
“Plaintiff‘s complaint fails to set forth a cause of action against the answering defendants, Borough of Brookhaven and Terry Heller. Answering defendants, are entitled to all of the defenses and immunities set forth in the Pennsylvania Political Subdivision Tort Claims Act. Plaintiff has failed to mitigate her damages. Answering defendants assert that the matters and statements upon which plaintiff complains were true or substantially true. Answering defendant Heller is entitled to official immunity under the common law of Pennsylvania as a high public official from the claims set forth by plaintiff,” according to the new matter, in part.
“None of the statements of which plaintiff complains which are attributable to answering defendants were capable of defamatory meaning. Plaintiff suffered no special harm as a result of any of the statements attributed to answering defendants. The purported statements of which plaintiff complains constitute a matter of public concern. The purported statements of which plaintiff complains were not malicious, nor were they capable of malicious meaning. The purported statements of which plaintiff complains were justified under the circumstances. The purported statements of which plaintiff complains were neither communications referring to the plaintiff, nor were they capable of being understood as referring to the plaintiff.”
In addition to Jones being a public figure, according to Heller, any statements he made “constitute fair comment and his opinion”, and “said statements were privileged on the occasion on which they were published.”
UPDATE
On May 31, defense counsel filed a motion to compel responses to discovery requests it made in March, or else that the plaintiff should face sanctions from the Court.
“On March 7, 2022, counsel for defendants Terry Heller and Brookhaven Borough served interrogatories, request for production of documents and expert interrogatories addressed to plaintiff on her counsel. On April 25, 2022, counsel for defendants Terry Heller and Brookhaven Borough wrote to counsel for plaintiff requesting the discovery be answered within the next 10 days so that a motion to compel would not be necessary,” according to the motion.
“As of the filing of this motion, plaintiff has neither responded to the discovery nor provided any explanation as to why she has failed to respond. Pursuant to Pennsylvania Rule of Civil Procedure 4019(a), this Honorable Court may enter an order compelling plaintiff to respond to the interrogatories, request for production of documents and expert interrogatories of defendants Terry Heller and Brookhaven Borough. Wherefore, the defendants Terry Heller and Brookhaven Borough respectfully request this Honorable Court grant its motion to compel ordering plaintiff to respond to the discovery within the next 10 days or suffer sanctions upon further motion to the Court.”
For counts of emotional distress and slander, the plaintiff is seeking compensatory damages in excess of $50,000, plus interest, costs, attorney’s fees and punitive damages.
The plaintiff is represented by William E. Malone Jr. in Media.
The defendants are represented by Robert P. DiDomenicis of Holsten Associates, also in Media.
Delaware County Court of Common Pleas case CV-2021-005122
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com