J-A22044-18

____________________________________

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

F. EARL REED III 

Appellant

v.

TONETTE PRAY

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 963 EDA 2018

Appeal from the Order Entered March 14, 2018

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 160400908

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 22, 2018

Appellant F. Earl Reed, III, (“Mr. Reed”) appeals from the final order 

entered in the Philadelphia County Court of Common Pleas, which granted 

Appellee Tonette Pray’s (“Ms. Pray”) motion for judgment on the pleadings 

and disposed of all the claims in this case. After a careful review, we affirm. 

The relevant facts and procedural history are as follows: On April 9, 

2016, Mr. Reed instituted this case via the filing of a civil complaint against 

Ms. Pray. Therein, Mr. Reed averred that he has been a lifelong resident of 

the Borough of Colwyn, Pennsylvania, and for many years, including 2007, he 

was active in the community and served as the President of the Colwyn Fire 

Department. Moreover, as of 2007, Mr. Reed was a member of the Colwyn 

Borough Council and served as chair of the Republican Campaign Committee 

of Colwyn.
J-A22044-18

- 2 -

Mr. Reed asserted that Ms. Pray also resided in Colwyn Borough and 

served on the Colwyn Borough Council. In the 2007 election, running against 

Mr. Reed and other Republican members of the Colwyn Borough Council, Ms. 

Pray and her supporters defeated Mr. Reed and his allies, and the Democrats 

took control of the Colwyn Borough Council. 

One of the issues raised during the campaign was whether Mr. Reed had 

“stolen” $100,000 from the Colwyn Sewer Fund during his time on the Council. 

This accusation arose as a result of a transaction that occurred in 2006 or 

2007 whereby the Colwyn Borough Council approved a short-term loan of 

$100,000 from Colwyn’s Sewer Fund to the Colwyn Fire Company so that the 

latter could take advantage of an early payment discount that would reduce 

the purchase price of a new fire truck. The savings resulting from the early 

payment discount was approximately $30,000; however, Ms. Pray and her 

political allies, contending the transaction was improper, blamed Mr. Reed for 

the removal of the money. After receiving complaints, the Delaware County 

District Attorney’s Office commenced a lengthy investigation, at the conclusion 

of which the Criminal Investigation Division declined to recommend 

prosecution.

After Mr. Reed was defeated in the 2007 election, Ms. Pray was elected 

the President of the Colwyn Borough Council. Mr. Reed averred Ms. Pray 

examined the Borough’s financial records and discovered that the $100,000 

had been repaid to the Colwyn Sewer Fund in full with interest. Specifically, 
J-A22044-18

- 3 -

Mr. Reed averred that he made arrangements to ensure the repayment was 

made before he left the Council. Subsequently, the Borough of Colwyn 

encountered such financial problems that the Commonwealth of Pennsylvania 

declared the Borough to be a financially distressed municipality. 

Mr. Reed relevantly averred the following occurred:

14. During the term of her service on Colwyn Borough 

Council, [Ms.] Pray, in statements made outside of Borough 

Council meetings, repeatedly and publicly blamed Colwyn 

Borough’s financial difficulties on [Mr. Reed] for having “stolen” 

$100,000 from the Borough of Colwyn back in 2007. These 

statements include statements made within the past year as part 

of a continuing practice and continuing course of conduct 

extending back to 2012 or before.

15. These repeated charges, and the publicity surrounding 

the Borough of Colwyn’s fiscal woes (which were blamed on [Mr. 

Reed]), have subjected [Mr. Reed] to repeated shame, 

humiliation, vilification, mockery and extensive negative attention 

in or from the news media, including but not limited to The 

Philadelphia Inquirer, The Daily Times of Delaware County, The 

News of Delaware County, Maria Schaffer (a reporter with The 

Philadelphia Inquirer), Dann Cuellar, Harry Hairston, Channel 6, 

and Channel 10. 

(a) Incidents of this public shame, mockery and 

vilification, etc. have occurred within the past year, 

and these incidents extend back over the years. 

(b) These incidents include, but are not limited 

to, being accused by neighbors of criminal conduct 

when [Mr. Reed] was walking his dog in the late 

afternoon.

(c) [Mr. Reed] has been informed, believes, and 

therefore avers that it was [Ms.] Pray who said to 

these neighbors that [Mr. Reed] had committed such 

criminal acts, thereby prompting the comments made 

to [Mr. Reed] by his neighbors.

16. This course of conduct by [Ms.] Pray, consisting of 

repeatedly and publicly (outside of Borough Council meetings) 

accusing [Mr. Reed] of criminal conduct, including but not limited 
J-A22044-18

- 4 -

to “stealing” $100,000 from the Borough of Colwyn, was 

undertaken in a spirit of “malice” because [Ms.] Pray either:

(a) Knew that the accusation was false; or

(b) Proceeded recklessly in making the accusation 

publicly when she either knew or should have known 

that the charge was false; or

(c) Accused [Mr. Reed] of other criminal or wrongful 

conduct that was of no public interest, and that she 

did so for the purpose of humiliating [Mr. Reed] and 

running down his reputation, the better to shift blame 

for the Borough’s distressed fiscal condition. 

17. As a direct and proximate result of the foregoing, [Mr. 

Reed] suffered mental distress, humiliation and depression, 

possibly including suffering a mental breakdown. 

Mr. Reed’s Complaint, filed 4/9/16, at 4-5, ¶¶ 14-17.

Based on the aforementioned, Mr. Reed alleged a count of false light 

invasion of privacy and a count of defamation against Ms. Pray. In further 

developing his claims, Mr. Reed averred in his count for invasion of privacy 

that he “experienced humiliation and vilification by neighbors and others for 

alleged criminal acts, which as [Mr. Reed] is advised, believes and therefore 

avers, [Ms.] Pray accused him of to such neighbors and others.” Id. at 6, ¶

20. Moreover, in his count for defamation, Mr. Reed averred “[o]utside of 

Borough Council, [] [Ms.] Pray, consistently and over a period of years 

(including one or more such statements made within the previous year) told 

citizens and residents in Colwyn Borough that [Mr. Reed] had ‘stolen’

$100,000 or more from the Borough of Colwyn[.]” Id. at 7, ¶ 26. He also 

asserted “[t]he statement(s) complained of herein were made in a campaign 

mode, outside of Borough Council meetings[,]” and Ms. Pray made the 
J-A22044-18

- 5 -

statements “at least in part [to] shift[] from herself the public blame for the 

financial distress the Borough of Colwyn descended into during her 

administration and her term in office as President of [the] Council.” Id. at 7, 

¶ 27, 8 ¶ 30. Finally, Mr. Reed also sought punitive damages due to Ms. Pray’s 

“outrageous” conduct. 

On June 16, 2016, Ms. Pray filed preliminary objections to Mr. Reed’s 

complaint averring improper venue, and on July 6, 2016, Mr. Reed filed an 

answer. By order entered on August 30, 2016, the trial court dismissed Ms. 

Pray’s preliminary objections. 

On September 7, 2016, Ms. Pray filed her answer to Mr. Reed’s 

complaint with new matter and affirmative defenses,1 and on January 24, 

2017, Mr. Reef filed a reply to the new matter. 

On January 25, 2018, Ms. Pray filed a motion for judgment on the 

pleadings pursuant to Pennsylvania Rule of Civil Procedure 1034. Therein, Ms. 

Pray relevantly averred Mr. Reed failed to set forth with sufficient specificity 

his claims for defamation or invasion of privacy. She also averred he failed to 

set forth sufficient facts to demonstrate that his causes of action for 

defamation or invasion of privacy were commenced within the applicable 

____________________________________________

1 Therein, Ms. Pray averred, inter alia, that Mr. Reed’s complaint failed to state 

a cause of action against Ms. Pray; Mr. Reed’s claims are barred by the 

applicable statute of limitations; and Ms. Pray is entitled to official immunity 

as the cause of action arose from the performance of her duties as a public 

official. 
J-A22044-18

- 6 -

statute of limitations. Consequently, Ms. Pray requested the trial court enter 

judgment in her favor and dismiss Mr. Reed’s complaint in its entirety with 

prejudice. 

On February 14, 2018, Mr. Reed filed an answer to Ms. Pray’s motion 

for judgment on the pleadings, and on February 20, 2018, Ms. Pray filed a 

reply. By order entered on March 14, 2018, the trial court granted Ms. Pray’s 

motion for judgment on the pleadings. Mr. Reed filed a timely notice of appeal 

on March 20, 2018,

2 and all Pa.R.A.P. 1925 requirements have been met.

On appeal, Mr. Reed sets forth the following issues (verbatim): 

1. Whether Plaintiff’s Complaint, in Count I, pled his cause of 

action for defamation with adequate specificity for defamation 

claims when he complained of statements published in 2015 by 

Defendant which (i) accused Plaintiff of criminal conduct, of 

conduct which would tend to lower him in the estimation of those 

who heard the statement(s), or which would tend to deter them 

from associating with him; which defamatory statements (ii) were 

identified by the class of persons to whom such statements were 

published; and (iii) which defamatory statements were identified 

as to time, including the scheduled Borough Council meetings for 

Colwyn Borough during the year 2015 - and did such allegations 

aver a cause of action within the one-year statute of limitations 

for defamation?

2. When Plaintiff's Complaint averred a "continuing" course of 

conduct, or campaign of defamation, by Defendant consisting of a 

series of defamatory statements, some published during the year 

prior to the filing of the Complaint, and some published during 

preceding years, did such averments state a proper cause of 

action under Pennsylvania law for defamation reaching back to the 

earliest published statements in that series when the publication 

____________________________________________

2 Mr. Reed also filed a motion for reconsideration of the trial court’s March 14, 

2018, order. The trial court filed an order denying the motion for 

reconsideration on April 2, 2018. 
J-A22044-18

- 7 -

of such statements was averred to have started more than one 

year prior to the filing of the Complaint and to have continued into 

the year preceding the filing of the Complaint, and when the 

Complaint alleged statements which were not only false, but which 

tended to lower Plaintiff in the eyes of the Community or to 

discourage people from associating with him, or which falsely 

accused him of criminal conduct?

3. Since the Motion for Judgment on the Pleadings addressed only 

the Defamation count, since the Complaint also included an 

Invasion of Privacy count, and since there are no special pleading 

requirements for Invasion of Privacy (as there are for 

Defamation), granting the Motion for Judgment on the Pleadings 

could at most have dismissed only the Defamation count, leaving 

the Invasion of Privacy count intact; hence, even if the Court 

determined to grant the Motion for Judgment on the Pleadings, 

was it not error to dismiss the entire case?

Mr. Reed’s Brief at 3-4 (footnotes and responses from trial court omitted). 

In his first issue, Mr. Reed avers that, in his complaint, he set forth the 

elements of defamation with sufficient specificity and, more specifically, he 

set forth a prima facie claim of defamation occurring within the applicable oneyear statute of limitations.3

 Accordingly, he contends the trial court erred in 

granting Ms. Pray’s motion for judgment on the pleadings on this basis.4

____________________________________________

3 42 Pa.C.S.A. § 5523(1) provides that “[t]he following actions and 

proceedings must be commenced within one year: (1) An action for libel, 

slander or invasion of privacy.”

4

In its Rule 1925(a) opinion, the trial court indicated that it granted Ms. Pray’s 

motion for judgment on the pleading since the compliant failed to allege with 

sufficient specificity “what was said,” “to whom it was said,” and “when it was 

said.” Trial Court Opinion, filed 5/21/18, at 7. That is, as it applied to Mr. 

Reed’s claim of defamation, the trial court concluded Mr. Reed failed to set 

forth a prima facie case regarding (1) the defamatory nature of a specific 

communication, (2) the publishing of a communication to an identified third 
J-A22044-18

- 8 -

Our scope and standard of review of the granting of a motion for 

judgment on the pleadings is well-settled.

Our scope of review on an appeal from the grant of 

judgment on the pleadings is plenary. Entry of judgment on the 

pleadings is permitted under Pennsylvania Rule of Civil Procedure 

1034, which provides that “after the pleadings are closed, but 

within such time as not to unreasonably delay trial, any party may 

move for judgment on the pleadings.” Pa.R.C.P. 1034(a). A 

motion for judgment on the pleadings is similar to a demurrer. It 

may be entered when there are no disputed issues of fact and the 

moving party is entitled to judgment as a matter of law. In 

determining if there is a dispute as to facts, the court must confine 

its consideration to the pleadings and relevant documents. On 

appeal, we accept as true all well-pleaded allegations in the 

complaint.

On appeal, our task is to determine whether the trial court’s 

ruling was based on a clear error of law or whether there were 

facts disclosed by the pleadings which should properly be tried 

before a jury or by a judge sitting without a jury.

Neither party can be deemed to have admitted either 

conclusions of law or unjustified inferences. Moreover, in 

conducting its inquiry, the court should confine itself to the 

pleadings themselves and any documents or exhibits properly 

attached to them. It may not consider inadmissible evidence in 

determining a motion for judgment on the pleadings. Only when 

the moving party’s case is clear and free from doubt such that a 

trial would prove fruitless will an appellate court affirm a motion 

for judgment on the pleadings.

Rubin v. CBS Broadcasting, Inc., 170 A.3d 560, 564-65 (Pa.Super. 2017) 

(quotations omitted). 

Initially, we note that, to state a cause of action for defamation, a 

complaint must contain averments of fact which, if proven, would establish:

____________________________________________

person, and (3) the alleged defamatory communication was published within 

one year so as to overcome the statute of limitations. 
J-A22044-18

- 9 -

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be 

applied to the plaintiff.

(6) Special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion.

Joseph v. Scranton Times L.P., 634 Pa. 35, 129 A.3d 404, 424 (2015) 

(quoting 42 Pa.C.S.A. § 8343(a)). 

As it relates to the “publication” element for defamation, it is well-settled 

that the alleged defamatory communication must be published to an identified 

third person. See Foster v. UPMC South Side Hosp., 2 A.3d 655, 666 

(Pa.Super. 2010) (finding complaint “fatally vague” where it failed to identify 

“who made the statements and to whom the statements were made”); Davis 

v. Resources for Human Development, Inc., 770 A.2d 353, 358 

(Pa.Super. 2001) (“It is clear that in Pennsylvania, the communication must 

be expressed to a third party in order to be ‘published.’”); Jaindl v. Mohr, 

637 A.2d 1353, 1358 (Pa.Super. 1994), affirmed, 541 Pa. 163, 661 A.2d 1362 

(1995) (“A complaint for defamation must, on its face, identify exactly to 

whom the allegedly defamatory statements were made.”); Moses v. 

McWilliams, 549 A.2d 950, 960 (Pa.Super. 1988) (en banc) (“A complaint 

for defamation must, on its face, identify specifically what allegedly 
J-A22044-18

- 10 -

defamatory statements were made, and to whom they were made. Failure to 

do so will subject the complaint to dismissal for lack of publication.”). 

Here, assuming, arguendo, Mr. Reed sufficiently identified an alleged 

defamatory statement in his complaint (i.e., that Ms. Pray stated Mr. Reed 

stole $100,000 from the Borough of Colwyn back in 2007), we agree with the 

trial court that Mr. Reed failed to aver sufficient facts as to whom the 

defamatory statement was published. At most, Mr. Reed alleges, in 

conclusory fashion, that Ms. Pray made the statement “publicly,” “outside of 

Borough Council meetings,” “to citizens and residents in Colwyn Borough,” 

and “to neighbors.” Mr. Reed’s Complaint, filed 4/9/16, at 4-7, ¶¶ 14-16, 26. 

Such vague allegations are insufficient to demonstrate publication of the 

alleged defamatory statement under the circumstances of this case. See 

Foster, supra; Davis, supra; Jaindl, supra; Moses, supra.

While Mr. Reed acknowledges that a complaint is defective if it merely 

avers the alleged defamatory material was published to “third parties,” he 

avers he presented a prima facie case of publication via his allegations, which 

identified a category of persons and/or described the recipient and events in 

a fashion that made them easily ascertainable. In this regard, he argues he 

“identified the persons to whom such statements were published as being 

citizens of Colwyn who were present at the times when [Ms. Pray] was 

entering or exiting the said Borough Council meetings[.]” Mr. Reed’s Brief at 

9, 14. He argues this averment set forth to whom defamatory statements 
J-A22044-18

- 11 -

were published by class or category (i.e., citizens of Colwyn) and his reference 

to “outside of Borough Council meetings” “within the past year” set forth the 

events in a fashion that it could be readily ascertainable to whom Ms. Pray 

made the defamatory statements. Mr. Reed’s Complaint, filed 4/9/16, at 4-

7, ¶¶ 14, 16, 26.

In support of his claim, Mr. Reed cites to Smith v. Wagner, 588 A.2d 

1308 (Pa.Super. 1991), wherein this Court held that a county official stated a 

prima facie claim of defamation with sufficient specificity so as to avoid 

preliminary objections in the nature of a demurrer. In that case, the plaintiff 

made general averments in his complaint that a newspaper publisher and 

printer had published defamatory statements about him and the newspaper 

was distributed “among residents of Potter County who were familiar with 

[the] plaintiff. . .and who were capable of understanding the references to 

him.” Id. at 1311. However, in concluding the plaintiff sufficiently identified 

the content of the statements, as well as to whom and when the statements 

were published, we noted that, while the averments in the complaint were not 

in and of themselves sufficiently specific, the complaint generally referred to 

newspaper articles, which the plaintiff attached to the complaint. Id. Thus, 

we held that, although the plaintiff’s “style of pleading [is] not to be 

encouraged. . .when one wades through the sea of information” it was possible 

to find a legally cognizable claim of defamation. Id. at 1310.
J-A22044-18

- 12 -

Mr. Reed also cites to Petula v. Mellody, 588 A.2d 103 (Pa.Cmwlth. 

1991),5 wherein our sister court found the plaintiff set forth a prima facie claim 

of defamation. In that case, the trial court granted a demurrer, in part, on 

the basis the plaintiff did not set forth with sufficient specificity to whom the 

alleged defamatory statements were published. There, the plaintiff averred 

in his complaint that defamatory statements about him were made by the 

defendants to “representatives and board members” of certain named school 

districts (including St. Michael’s and Wyoming Valley West). While the 

Commonwealth Court noted it “would have been preferable to identify the 

third parties by name, the identification of the third parties [was] not so vague 

as to warrant sustaining a demurrer.” Petula, 588 A.2d at 417. 

In so ruling, the Commonwealth Court distinguished the pleading in 

Petula from the pleading in a separate case, Raneri v. DePolo, 441 A.2d 

1373 (Pa.Cmwlth. 1982), wherein the plaintiff alleged the defendant made 

defamatory statements about him to “third parties.” In Raneri, the 

Commonwealth Court held the complaint failed “to allege with particularity the 

identity of the persons to whom the statements were made[,]” and thus, the 

____________________________________________

5 “This Court is not bound by decisions of the Commonwealth Court. However, 

such decisions provide persuasive authority, and we may turn to our 

colleagues on the Commonwealth Court for guidance when appropriate.” 

Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa.Super. 2010) (quotations 

marks, quotation, and citation omitted). 
J-A22044-18

- 13 -

Court affirmed the trial court’s entry of preliminary objections in the nature of 

a demurrer.

In the case sub judice, although Mr. Reed referenced in his complaint 

that Ms. Pray made statements of a defamatory nature “publicly,” “outside of 

Borough Council meetings,” “to citizens and residents,” and “to neighbors,” 

his complaint did not, as he now alleges in his appellate brief, suggest that 

Ms. Pray made the statements specifically as she was entering or exiting 

Borough Council meetings. Mr. Reed’s Complaint, filed 4/9/16, at 4-7, ¶¶ 14-

16, 26.

In any event, assuming, arguendo, this is a fair inference from his 

complaint, and we accept it as true under our standard of review, see Rubin, 

supra, such a general averment does not set forth a prima face case of 

defamation under the circumstances of this case. Simply put, Mr. Reed’s 

averment that Ms. Pray made statements of a defamatory nature as she was 

entering or exiting Borough Council meetings at some unidentified time over 

the past year is too vague to state a cause of action for defamation. We 

conclude that the pleading in this case is more akin to that in Raneri, supra,

wherein the Commonwealth Court held the identification of “third parties” was 

insufficient. See id. In fact, we note the complaint in the case sub judice 

does not include any averments as to the specific dates of the subject Borough 

Council meetings or that any citizens or residents were even within earshot of 

Ms. Pray and/or heard Ms. Pray make the statements. Accordingly, we agree 
J-A22044-18

- 14 -

with the trial court that Mr. Reed’s defamation count fails to allege with 

sufficient particularity the identity of persons to whom the statements were 

made, which is an essential element of an actionable defamation claim.6 See 

id. 

In his final claim,7 Mr. Reed contends the trial court erred in dismissing 

his claim for invasion of privacy. Specifically, he argues:

[Ms. Pray’s] Motion for Judgment on the Pleadings did not 

challenge Count I of the Complaint (the “Invasion of Privacy” 

Count); instead, [Ms. Pray’s] Motion concentrated exclusively on 

asserting that [Mr. Reed] did not plead his Count II defamation 

claims with requisite specificity as to the time, as to the content 

of what was said, or as to the persons to whom the defamatory 

statements were allegedly published. 

***

Since she raises no legal issues concerning Count I of the 

Complaint, sounding in “Invasion of Privacy,” even the dismissal 

____________________________________________

6 We specifically note that Mr. Reed’s averments that Ms. Pray made 

defamatory statements to unidentified neighbors, who then repeated the 

statements to Mr. Reed as he was walking his dog in the late afternoon, is too 

vague to set forth a prima facie case of defamation. See Joseph, supra; 

Raneri, supra. Further, his general averment that Ms. Pray’s “charges” 

resulted in “publicity” and “negative attention in or from the news media” does 

not set forth a prima facie case of defamation. Mr. Reed’s Complaint, filed 

4/9/16, at ¶ 15. Unlike in Smith, Mr. Reed did not attach any articles or 

provide further information as to the content of the communications or the 

dates of the publication.

7

In light of our holding that Mr. Reed did not set forth a prima facie case of 

publication for defamation, we find it unnecessary to address Mr. Reed’s 

second claim; to wit, whether this Court should uphold a “continuing tort for 

defamation” so that a plaintiff may be fairly compensated for harm suffered 

prior to the one year statute of limitations. 
J-A22044-18

- 15 -

of Count II of the Complaint does not remove Count I from 

consideration. 

Mr. Reed’s Brief at 33-34. 

We have reviewed Ms. Pray’s motion for judgment on the pleadings, and 

we agree with the trial court that Ms. Pray challenged in her motion the 

specificity of Mr. Reed’s pleading as to both defamation and invasion of 

privacy, as well as whether he met the applicable statute of limitations as to 

both claims. Thus, Mr. Reed had notice that Ms. Pray was seeking judgment 

on the pleadings as to both claims8 and, without further development of the 

issue on appeal by Mr. Reed, we find no error. 

For all of the foregoing reasons, we affirm.

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/18

____________________________________________

8

In fact, in her motion, Ms. Pray specifically “request[ed] that th[e] [trial] 

court enter judgment in her favor and against [Mr. Reed] and dismiss [Mr. 

Reed’s] Complaint with prejudice.” Ms. Pray’s Motion for Judgment on the 

Pleadings, filed 1/25/18.