MEDIA – Counsel for online news provider Patch and one of its reporters have been granted consolidation of two lawsuits based upon an article it published, which claimed both the plaintiff and his mother were arrested for a fatal shooting in June 2021, when in fact they were arrested for unrelated offenses.
DaJuan Andrews of Darby first filed suit in the Delaware County Court of Common Pleas on May 23, 2022 versus Planck, LLC (doing business as “Patch Media Corporation”) and Max Bennett, both of New York, N.Y.
“On or about June 11, 2021, the plaintiff was arrested at his residence and charged with firearms offenses and other related charges under the Pennsylvania Crimes Code. The arrest was based upon the events of the evening of June 9, 2021 at the plaintiff’s residence located at 302 Mulberry Street, Darby, PA 19023,” the suit said.
“After a preliminary investigation the Darby Borough Police Department obtained a search warrant for plaintiff’s residence. On June 11, 2021 the search warrant was executed wherein several firearms were found in the residence. Plaintiff was taken into custody along with the other resident, plaintiff’s mother, Janell Smart, and both were charged with firearms offenses and other related charges. Plaintiff was never charged with, never investigated for and was in no way involved with the murder of one individual and the shooting of two additional individuals at Rudy’s Tavern, located at 7160 Marshall Road, Upper Darby, PA 19082.”
The suit added that the incident at plaintiff’s residence on Mulberry Street which occurred on June 9, 2021, “did not involve anyone being killed or wounded as a result of the discharge of a firearm.”
“Defendant Bennett working as an agent servant workman staff member and/or independent contractor for defendant Patch authored and posted to the Patch online website an article dated June 11, 2021 stating as fact that plaintiff was charged for the murder of a man and a shooting of two other individuals at Ruby’s Tavern in Upper Darby, PA,” the suit stated.
“Plaintiff was nowhere in the vicinity of Ruby’s Tavern when the murder and shootings occurred. The above-mentioned Ruby’s Tavern is located over three miles from the residence of plaintiff, and is in a different municipality. MSN picked up the original article from defendant Patch and posted it on the MSN website on June 11, 2021. The MSN website disseminated the information worldwide on the same date.”
According to the plaintiff, the defendants fabricated the information that the plaintiff was charged in connection with a murder and shootings that occurred outside of Ruby’s Tavern in Upper Darby, PA.
“The publication that plaintiff was charged with murder and also charged with murder and shootings at Ruby’s Tavern was a complete fiction made up by defendants Bennett and Patch with no rational basis for same. There are and were no governmental or police statements issued that stated plaintiff was charged with murder and also charged with murder and the shootings of other individuals that occurred at Ruby’s Tavern in Upper Darby, PA,” the suit said.
“The Delaware County District Attorney’s Office issued a press release concerning plaintiff on June 11, 2021. The press release stated that plaintiff was arrested in connection with a firearm discharge on the 200 block of Mulberry Street in Darby, PA on June 9, 2021. Nowhere in the aforementioned press release from the Delaware County District Attorney’s Office does it indicate that plaintiff was arrested and charged with murder and also arrested and charged with the shootings of other individuals at Ruby’s Tavern in Upper Darby, PA. Based upon the aforementioned press release the fair report privilege is not applicable.”
Despite the defendants updating the original article to attempt to correct their error, which included information that plaintiff was charged with murder in connection with a deadly shooting that occurred outside of Ruby’s Tavern in Upper Darby, PA the plaintiff said that the photo caption in the updated article again falsely accused him of having been charged with murder.
The plaintiff argued that the updated article was “published after the defendants became aware that he was never suspected of, accused of or charged with murder in any shooting incident, yet they chose to publish the false information a second time that plaintiff was charged with murder.”
“Defendants Bennett and Patch only removed the articles from their respective websites [on Feb. 22, 2022] after notice of a potential defamation lawsuit was provided to them. Plaintiff’s mother Janell Smart is a private person,” the suit stated.
Nearly one year later, on May 31, defense counsel filed a motion to consolidate the instant action with a separate one filed by the plaintiff’s mother, Smart, based upon the exact same news article.
“Plaintiff’s mother, Smart, also filed a complaint against defendants in this Court, Case ID CV-2022-008490, based upon the same exact article. Indeed, Smart is represented by the same attorney as plaintiff and her complaint asserts the same exact causes of action as plaintiff’s complaint in this matter. There can be no dispute as to the fact that these two matters must be consolidated. According to Pennsylvania Rule of Civil Procedure 213(a): ‘In actions pending in a county which involve a common questions of law or fact or which arise from the same transaction occurrence, the Court…on the motion of any party may order…the actions consolidated. Therefore, the decision to consolidate actions rest within the complete discretion of the trial court, who should consolidate separate actions to avoid the multiplicity of trials and reduce the expense to the parties. Consolidation should be granted where the trial of the cases together would not put the objecting party at a disadvantage or prejudice the party’s rights,” the consolidation motion stated.
“Here, consolidation is proper because the actions involve common questions of law and fact (i.e. whether defendants’ articles are defamatory) and arise from the same transaction or occurrence (the articles). Indeed, plaintiff and Smart assert the same causes of action based upon the same exact article. Furthermore, there would be no disadvantage or prejudice to plaintiff or Smart as the legal questions are identical. Indeed, the consolidation of these actions would lessen the parties’ costs, as they would only have to prepare for one trial instead of two, and would lessen the judicial resources needed to resolve the matters. The only issue which will require separate treatment in these actions would be the amount of damages (if any) to be awarded, which can be easily addressed by the use of proper jury instructions to separate the claims of plaintiff and Smart.”
Per the defendants, since (1) Both actions arise out of the same transaction and occurrence; (2) Both actions involve the common questions of both law and fact; and (3) Any decision(s) in either action on such common questions of law and fact have the potential to negatively impact the other cause of action based on res judicata/collateral estoppel.
UPDATE
On Aug. 28, Delaware County Court of Common Pleas Judge Barry C. Dozor granted the consolidation motion.
“Upon consideration of plaintiffs’ motions for consolidation and receiving no opposition, thereto it is ordered that said motions are granted and the above-captioned matters are consolidated under Janell D. Smart v. Planck, LLC d/b/a Patch Media Corporation Et.Al, CV-2022-008490,” Dozor ruled.
For multiple counts of defamation and intentional infliction of emotional distress, the plaintiff is seeking damages in excess of $50,000, including, but not limited to:
• Actual harm to plaintiff’s reputation resulting from the conduct of defendants each of them;
• Emotional distress mental anguish and humiliation plaintiff suffered as a result of the conduct of defendants each of them;
• Physical symptoms suffered as a result of the conduct of the defendants including symptoms of severe stress anxiety headaches depression sleeplessness and vomiting;
• Punitive damages.
The plaintiff is represented by James D. Famiglio of James D. Famiglio, P.C., in Media.
The defendants are represented by D. Wesley Meehan of Gordon Rees Scully Mansukhani, in Florham Park, N.J.
Delaware County Court of Common Pleas case CV-2022-003527
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com