[J-13-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

ELLIOT MENKOWITZ, M.D.,

Appellant

v.

PEERLESS PUBLICATIONS, INC. AND 

ERIC ENGQUIST,

Appellees

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No. 40 MAP 2018

Appeal from the Order of the Superior 

Court at Nos. 2048 & 2096 EDA 2014 

dated December 15, 2017 Vacating 

the Judgment Entered July 23, 2014 

in Montgomery County Court of 

Common Pleas, Civil Division, at No. 

1998-07291 and remanding

ARGUED: March 6, 2019

OPINION

JUSTICE DONOHUE DECIDED: July 17, 2019

A jury awarded Appellant, Elliot Menkowitz, M.D. (“Dr. Menkowitz”), $1,000,000 in 

compensatory damages in his defamation suit against Appellees, Peerless Publications, 

Inc. (“Peerless”) and Eric Engquist (“Engquist”). The Superior Court found that the trial 

court erred in failing to enter judgment non obstante verdicto (“JNOV”) in Appellees’ favor

and vacated the award of compensatory damages. We granted allocatur to consider 

whether in so doing, the Superior Court failed to exercise appropriate deference to the 

fact-finder when reviewing a JNOV ruling, as explained in this Court’s ruling in Joseph v. 

Scranton Times, L.P., 129 A.3d 404 (Pa. 2015) (“Joseph III”). For the reasons set forth 

herein, we vacate the order of the Superior Court and remand the case to that court for 

further proceedings. 
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Dr. Menkowitz began his employment as an orthopedic surgeon at Pottstown 

Memorial Medical Center (“PMMC”) in the early 1970s. At PMMC, Dr. Menkowitz was 

accused of verbally abusing colleagues and staff and engaging in other inappropriate 

behavior in front of patients. In April 1996, Dr. Menkowitz was informed that due to his 

inappropriate conduct, PMMC’s Medical Executive Committee and the Medical 

Committee of the Board had voted to suspend him or allow him to take a voluntary leave 

to address his behavioral problems. Dr. Menkowitz then disclosed that he had recently 

been diagnosed with ADHD and suggested that he might be protected under the 

Americans with Disabilities Act.

1

In light of this information, PMMC did not suspend Dr. 

Menkowitz or require him to take a leave of absence, but issued a written warning 

explaining that should Dr. Menkowitz’s misbehavior continue, PMMC would summarily 

suspend all of his clinical privileges. Less than a year later, on March 25, 1997, based 

upon continuing behavioral issues, PMMC suspended Dr. Menkowitz for six months. The

suspension did not last for the full six months, however, as PMMC lifted it approximately 

one month later when Dr. Menkowitz filed suit against PMMC in federal court for violation 

of the Americans with Disabilities Act and section 504 of the Rehabilitation Act.2

On April 18, 1997, the Mercury, a local Pottstown newspaper, ran a front-page 

article about Dr. Menkowitz (hereinafter “the Article”). The Mercury is published by 

Peerless and the Article was written by Engquist. Under the headline “PMMC Suspends 

Physician,” the Article reported that Dr. Menkowitz had been suspended from PMMC. Of 

particular relevance to this appeal, the Article further stated, that “[Dr. Menkowitz’s] 

 

1 42 U.S.C. §§ 12101-12213.

2 29 U.S.C. § 794. 
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sudden absence from the hospital has spawned rampant rumors of professional 

misconduct regarding his treatment of an older female patient.” This statement

(hereinafter, “the Statement”) forms the heart of this litigation. On April 26, 1997, the 

Mercury ran an editorial feature called “Cheers and Jeers,” which mentioned Dr. 

Menkowitz’s clash with PMMC and “jeered” the manner in which the parties handled the 

incident, noting the suspension, the federal civil action filed by Dr. Menkowitz, and 

PMMC’s subsequent decision to lift the suspension.3

Upon opening his newspaper on April 18, 1997, Dr. Menkowitz discovered the 

Article. He quickly fell into a severe depression. Dr. Menkowitz’s treatment for this 

depression included multiple medications that caused fasciculations (tremors) in his arms 

and hands, impairing Dr. Menkowitz’s ability to perform surgery. 

In April 1998, Dr. Menkowitz filed the underlying action in Montgomery County, 

raising claims of defamation, invasion of privacy - false light, intentional interference with 

existing and prospective relationships, and intentional infliction of emotional distress

related to these publications.

4

 In particular, Dr. Menkowitz alleged that the Statement, 

which referenced misconduct in connection with an elderly female patient, gave rise to 

 

3 The Mercury published two other articles related to Dr. Menkowitz’s suspension and 

his federal lawsuit, neither of which are relevant to the present litigation. These articles

were published on April 19 and 23, 1997. The April 19 article reported on the suit Dr. 

Menkowitz filed against PMMC alleging various federal and state civil rights violations and 

that his suspension violated the Americans with Disabilities Act. The April 23 article 

reported that PMMC had lifted the suspension, but indicated that the terms of the 

settlement that led to the lifting of the suspension were confidential.

4 Presently, we are concerned only with Dr. Menkowitz’s defamation claim related to the 

Article containing the Statement, published on April 18, 1997. Although Dr. Menkowitz

also alleged defamation in his complaint related to the April 26 editorial, he did not pursue 

this claim at trial. 
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defamatory implications or innuendo. Complaint, 4/14/1998, ¶ 19. Dr. Menkowitz sought 

punitive damages, which required him to prove that Appellees acted with malice in 

publishing the Article. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

5 Dr. 

Menkowitz also sought compensatory damages for his mental and emotional pain. To be 

entitled to compensatory damages, Dr. Menkowitz did not have to prove malice, but did 

have to prove that the alleged defamatory innuendo was published negligently and that 

Dr. Menkowitz suffered reputational injury therefrom.6 See Joseph, 129 A.3d at 428-29; 

American Future Sys., Inc. v. Better Bus. Bureau of E. Pennsylvania, 923 A.2d 389, 400 

(Pa. 2007). 

Trial did not commence until 2014. In an attempt to prove malice in connection 

with his claim for punitive damages, Dr. Menkowitz presented testimony from an expert 

 

5 Malice in the context of defamation requires a showing that “the defendant must have 

made the false publication with a ‘high degree of awareness ... of probable falsity,’ or 

must have ‘entertained serious doubts as to the truth of his publication.’” Joseph III, 129 

A.3d at 437 (quoting Harte-Hanks Comm. Inc. v. Connaughton, 491 U.S. 657, 666-67 

(1989)). 

6

 Pursuant to Pennsylvania statute, in an action for defamation, the plaintiff has the 

burden of proving, when the issue is properly raised:

(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.

42 Pa.C.S. § 8343(a).
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witness to establish that Appellees published the Article with a high awareness of its 

probable falsity or serious doubts as to its truthfulness. Appellees defended against this 

accusation with testimony from Engquist regarding his sources for the Article and his 

belief as to the truth of its representations. Appellees also called an expert witness, who 

opined that publication of the Article did not violate journalistic standards. 

With regard to compensatory damages, Dr. Menkowitz testified to the depression 

he suffered following the publication of the Article and the physical consequences of the 

medicines used to alleviate the depression. He also testified that after publication of the

Article, additional hospitals terminated his privileges and attorneys ceased using him as

an expert witness. Dr. Menkowitz’s wife and son testified regarding the effect that reading 

the Article had on him. Dr. Menkowitz’s treating psychologist, who testified as to the depth 

and severity of Dr. Menkowitz’s depression, opined that it was triggered by the publication 

of the Article. Dr. Menkowitz also presented the testimony of a practicing attorney, Jeffrey 

A. Krawitz, Esquire (“Attorney Krawitz”), who indicated that he had written a letter to 

opposing counsel who was planning to use Dr. Menkowitz as an expert in a particular 

case. In this letter, Attorney Krawitz informed opposing counsel that he had learned that 

Dr. Menkowitz had been indicted on charges relating to improper sexual conduct with 

patients. 

The jury returned a verdict in Dr. Menkowitz’s favor, awarding both compensatory 

and punitive damages. In compensatory damages, the jury awarded $200,000 for harm 

to reputation and $800,000 for past wage loss and future earning capacity. Appellees 

filed post-trial motions, seeking, among other relief, JNOV, and a remittitur or vacation of 

the punitive damage award. After entertaining argument, the trial court vacated the 
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punitive damage award, concluding that Dr. Menkowitz had failed to establish that 

Appellees acted with malice. The trial court denied all other relief, including Appellees’

request for entry of JNOV. 

Both parties appealed. Appellees raised eight issues of trial court error, asserting 

claims that the trial court erred in denying their post-trial request for JNOV; denying their 

post-trial request for remittitur of the compensatory damage award; failing to issue 

particular jury instructions; and making certain evidentiary rulings. See Trial Court 

Opinion, 9/19/2014, at 5-6. Dr. Menkowitz challenged only the trial court’s decision to 

vacate the punitive damage award. Id. at 5. The trial court issued a lengthy opinion 

pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. With regard 

to Appellees’ challenge to the denial of their motion for JNOV, the trial court rejected 

Appellees’ contention that Dr. Menkowitz had failed to prove that the Article contained a 

material falsity. The trial court noted that the Superior Court has recognized the tort of 

defamation by implication, pursuant to which the “literal accuracy of separate statements 

will not render a communication ‘true’ where ... the implication of the communication as 

a whole was false.” Id. at 13 (quoting Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 

6, 15 (Pa. Super. 1982)). Reviewing the testimony of Dr. Menkowitz, his son, his wife 

and Attorney Krawitz, each of whom indicated that the Statement’s reference to 

“professional misconduct” in connection with an “older female patient” implied that Dr. 

Menkowitz was guilty of sexual improprieties, the trial court concluded that the jury had 

sufficient evidence to conclude that the Statement was defamatory by implication, and 

thus it was not error to submit the issue of defamatory meaning to the jury for resolution. 

Id. at 14-16. 
[J-13-2019] - 7

Next, the trial court supported its decision to vacate the jury’s award of punitive 

damages, concluding that Dr. Menkowitz had failed to produce sufficient evidence that 

Appellees either knew that the Article was false or had a “high degree of awareness of ... 

probable falsity.” Id. at 12 (quoting Harte-Hanks Commc’ns., Inc. v. Connaughton, 491 

U.S. 657, 688 (1989)). Finally, based upon the testimony of Dr. Menkowitz, his treating 

psychologist, and Attorney Krawitz, the trial court determined that Dr. Menkowitz had 

presented sufficient evidence to support the jury’s award of compensatory damages for 

harm to reputation, past wage loss and impairment of future income, and that as a result 

JNOV had been properly denied. Id. at 27-29. 

On appeal, the Superior Court acknowledged that in cases such as this, with a 

private figure as plaintiff, a media defendant, and an issue of public concern, the plaintiff 

must prove falsity of the communication at issue, negligence in its publication, and actual 

damage to the plaintiff’s reputation caused by the defamatory communication for an 

award of compensatory damages. Menkowitz v. Peerless Publ’ns, Inc., 176 A.3d 968, 

978 (Pa. Super. 2017), appeal granted in part, 190 A.3d 594 (Pa. 2018). Concerning 

falsity, the court explained that although Dr. Menkowitz conceded that the component of 

the Article that reported on his suspension was true, his argument focused on the 

Statement and alleged that it was capable of defamatory implications or innuendo that 

were false. Id. at 982. The Superior Court recognized that the test to determine whether 

a statement is capable of defaming a subject by innuendo asks whether the statement

can reasonably be construed to imply the defamatory meaning alleged. Id. (citing 

Sarkees v. Warner-West Corp., 37 A.2d 544, 546 (Pa. 1944)). The alleged innuendo 

must be adequately supported by the challenged language and cannot be the product of 
[J-13-2019] - 8

a forced construction of the natural meaning of the words. Id. The trial court, in the first 

instance, must assess whether the objected-to language is capable of defamatory 

implication; if the court determines that the language does not support the alleged 

innuendo, the case should not be sent to the jury. Id. When the language is capable of 

both innocent and defamatory interpretations, it is for a jury to decide if the recipient 

understood the defamatory implications. Id. (quoting Pelagatti v. Cohen, 536 A.2d 1337, 

1345 (Pa. Super. 1987)). 

The Superior Court found that Dr. Menkowitz adequately established that the 

Statement is capable of defamation by implication. In reaching this conclusion, the 

Superior Court parsed the Statement’s phrases and discussed their plausible implications 

at length. See id. at 983-87. For instance, it reasoned that a jury could find that the 

phrase “professional misconduct” suggests an array of misconduct to lay persons, 

including sexual impropriety. Id. at 984. The Superior Court found the inclusion of the 

patient’s gender supportive of the innuendo of sexual impropriety, as there would be no 

reason to identify the patient as female “if nothing sexual is to be inferred.” Id. at 984. It 

further noted that the sexual innuendo from “professional misconduct” is plausible 

because the State Board of Medicine’s regulations provide that sexual behavior with a 

patient is “unprofessional conduct.” Id. The Court also focused on the use of the phrase 

“sudden absence,” which, in its view, could reasonably suggest that Dr. Menkowitz had 

to act with urgency and was fleeing PMMC. Id.

The Superior Court then turned its attention to whether Dr. Menkowitz met the 

threshold requirements to be entitled to either punitive or compensatory damages. It first 

considered the trial court’s conclusion that Dr. Menkowitz failed to establish malice in 
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connection with the punitive damage award. The Superior Court found that the evidence 

of record supported the trial court’s conclusion, citing to Engquist’s testimony and 

Appellees’ expert’s opinion that there was no deviation from journalistic standards so as 

to permit a finding of malice. Id. at 988. 

Turning to the propriety of the compensatory damage award, the Superior Court 

considered whether Dr. Menkowitz established that he suffered damage to his reputation 

attributable to the Statement’s defamatory innuendo, as opposed to his suspension from 

PMMC. It concluded that Dr. Menkowitz had presented no evidence to confirm that the 

alleged injury to reputation was caused by the contents of the Article as opposed to his 

suspension. The Superior Court explained that

[n]ot one witness testified that his or her view of the physician 

changed as a result of this communication. Furthermore, even 

[Dr. Menkowitz] conceded that the harshness of suspension 

alone after twenty-five years would lead one to believe that he 

had done something horrible. N.T.[], 3/17/[20]14, at 260. He 

recounted a conversation with an elderly gentleman who 

recognized his name “because he remembered I was the 

doctor who was ‘kicked out of the hospital.’” Id. at 262. [Dr. 

Menkowitz’s] expert also acknowledged that the public 

disclosure of the suspension alone was damaging to the 

physician's reputation. Mr. Eveslage conceded, “If I am 

reading that a surgeon in a hospital in my town has been 

banned from seeing patients at the hospital, that clearly is 

going to be damaging to his reputation.” N.T.[], 3/18/[20]14, at 

440.

[Dr. Menkowitz’s] testimony that other hospitals with which he 

was associated read the article and stopped using him is 

similarly deficient as it failed to distinguish whether the alleged 

injury to reputation was caused by the suspension or the 

article. Absent is the causal connection required by Joseph

between the alleged defamatory innuendos and the harm to 

reputation, as distinguished from the suspension itself. All of 

the foregoing proof tends to confirm that any damage to [Dr. 

Menkowitz’s] reputation flowed from the suspension itself, not 

any implication of sexual or physical abuse. Thus, even if we 
[J-13-2019] - 10

were to find a basis for liability, the record contained 

insufficient proof that the defamatory statement or innuendos, 

rather than the fact of suspension, caused damage to 

reputation that would have supported a compensatory 

damage award. [Dr. Menkowitz’s] failure to prove damages to 

his reputation resulting from the defamatory innuendo is fatal 

to his claim. 

Id. at 989. The Superior Court vacated the award of compensatory damages and 

remanded for the entry of JNOV in Appellee’s favor without reaching the other issues 

raised. Id.7

On appeal to this Court, we granted allocatur with respect to a single issue:

Did the Superior Court disregard this Court’s holding in 

Joseph III by failing to apply the appropriate standards of 

causation and deference in vacating the judgment entered by 

the trial court awarding substantial compensatory and 

consequential damages to Elliot Menkowitz, M.D. for harm to 

reputation and loss of past and future earnings?

Menkowitz v. Peerless Publ’ns., Inc., 190 A.3d 594 (Pa. 2018). With respect to this 

question, Dr. Menkowitz argues that in Joseph III, this Court held that appellate courts 

must defer to the facts as determined by the factfinder when reviewing defamation claims. 

Dr. Menkowitz’s Brief at 26-29; 32-34. Dr. Menkowitz claims that contrary to this standard, 

here the Superior Court made its own findings of fact rather than limiting its inquiry to 

determining whether there was sufficient competent evidence of record to support the 

jury’s determination. See id. at 29-32, 35-40. In particular, Dr. Menkowitz criticizes the 

Superior Court for disregarding specific evidence that supported the jury’s award of 

damages. Dr. Menkowitz argues that the Superior Court was not free to ignore this 

 

7

In a concurring opinion joined by three judges, the Honorable Mary Jane Bowes 

explained her view that the Statement was not reasonably capable of defamatory 

innuendo such that the claim should not have been submitted to the jury. See Menkowitz, 

176 A.3d at 989-90 (Bowes, J., concurring). 
[J-13-2019] - 11

evidence, but instead was required to consider and accept it as credible fact when 

reviewing the trial court’s denial of Appellees’ motion for JNOV. 

Appellees disagree. To the contrary, they argue that the Superior Court performed 

the proper review, and in so doing found that Dr. Menkowitz offered no evidence (as 

opposed to incredible evidence) that he suffered reputational harm because of the 

Statement’s alleged false innuendo. Appellees’ Brief at 26. Appellees suggest that 

Joseph III is distinguishable on this basis, arguing that while in Joseph III this Court found

error when the Superior Court ignored or minimized certain evidence to arrive at contrary 

factual conclusions, in the present case, the Superior Court did not make factual findings

but rather merely discerned that the record was entirely devoid of evidence that would 

support a finding that Dr. Menkowitz suffered reputational harm due to innuendo arising 

from the Statement. Id. at 28.8

We review the Superior Court’s legal conclusions de novo and our scope of review 

is plenary. Reott v. Asia Trend, Inc., 55 A.3d 1088, 1093 (Pa. 2012). An appellate court 

will reverse the trial court’s decision to grant or deny JNOV only when it finds an abuse 

of discretion or an error of law. See Rost v. Ford Motor Co., 151 A.3d 1032, 1042 (Pa. 

2016) (citing Reott, 55 A.3d at 1093). An abuse of discretion does not result from a mere 

error of judgment. See, e.g., Humphreys v. DeRoss, 790 A.2d 281, 283 (Pa. 2002); Kelly 

v. Cty. of Allegheny, 546 A.2d 608, 610 (Pa. 1988); Echon v. Pa. R. Co., 76 A.2d 175, 

 

8 Pennsylvania NewsMedia Association has filed a brief for amicus curiae in support of 

Appellees. It advocates for a standard that requires an analysis of each statement and 

alleged innuendo individually in defamation claims by a private citizens against a media 

defendant “to strike the proper balance between the competing interests of protecting 

speech and protecting reputation.” See Brief for Amicus Curiae at 4-7. It argues that the 

Superior Court engaged in this type review when it reached it decision and vacated the 

judgment adverse to Appellees. Id. at 8-9. 
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178 (Pa. 1950); Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934). An abuse of discretion 

exists where the law is overridden or misapplied, or the judgment exercised is manifestly 

unreasonable or the result of partiality, prejudice, bias, or ill will, as shown by the evidence 

or the record. Echon, 76 A.2d at 178. 

A court may enter JNOV on one of two bases. The first is where a movant is 

entitled to judgment as a matter of law because, upon reviewing the record and deciding 

all factual inferences adverse to the movant, the law nonetheless requires a verdict in his 

favor. Moure v. Raeuchis, 604 A.2d 1003, 1007 (Pa. 1992). The second is where “the 

evidence was such that no two reasonable minds could disagree that the outcome should 

have been rendered in favor of the movant.” Id.; see also Birth Ctr. v. St. Paul Companies, 

Inc., 787 A.2d 376, 383 (Pa. 2001). In such a case, the court reviews the evidentiary 

record and concludes based on the evidence that a verdict for the movant was beyond 

peradventure. Moure, 604 A.2d at 1007. In reviewing the lower court’s decision, we must

read the record in the light most favorable to the verdict winner and afford him the benefit 

of all reasonable inferences. Id.

Thus, in the present case we may conclude that the trial court’s denial of JNOV 

was inappropriate only if there is insufficient, competent evidence to sustain the verdict. 

Wenrick v. Schloemann-Siemag Aktiengesellschaft, 564 A.2d 1244, 1246 (Pa. 1989). 

Because Dr. Menkowitz prevailed at trial on his entitlement to compensatory damages, 

we give him the benefit of every reasonable inference arising from the evidence, while 

rejecting all unfavorable testimony and inferences. Justice v. Lombardo, __ A.3d __,

2019 WL 2324277 (Pa. May 31, 2019). Moreover, JNOV should only be entered in a 

clear case with any doubts resolved in favor of the verdict winner. An appellate court 
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“stands on a different plane” than a trial court, and it is the trial court that has the benefit 

of an “on-the-scene evaluation of the evidence.” Exner v. Gangewere, 152 A.2d 458, 

472-73 (Pa. 1959). As such, while the appellate court may disagree with a verdict, it may 

not grant a motion for JNOV simply because it would have come to a different conclusion. 

Indeed, the verdict must stand unless there is no legal basis for it. Birth Ctr., 787 A.2d at 

383. 

With this background, we turn to Joseph III. In 2002, Thomas Joseph, Sr., his son

and his two businesses, Acumark, Inc., and Airport Limousine and Taxi Service, Inc., filed 

suit against a Scranton-area newspaper and two of its journalists, alleging, inter alia, 

defamation. They based their claims on eight articles, published between June and 

October 2001, concerning alleged ties between Joseph and organized crime activities, 

including an association with the purported head of a Northeastern Pennsylvania crime 

family, William D’Elia. Among other information, the articles reported on the execution of

federal and state search warrants at Acumark, Inc., Joseph’s home, D’Elia’s home, and 

the homes of two other individuals. The now-former Judge Mark Ciavarella of Luzerne 

County Court of Common Pleas presided over a bench trial, at the conclusion of which 

he returned a verdict in Joseph’s favor and awarded $2,000,000 in compensatory 

damages. The Superior Court affirmed. Joseph v. Scranton Times L.P., 959 A.2d 322 

(Pa. Super. 2008) (“Joseph I”). In response to an application for extraordinary relief filed 

by the media defendants, however, this Court exercised its King’s Bench power to vacate 

the verdict, judgments, and all substantive orders, due to the appearance of judicial 

impropriety in the assignment of the case and remanded for the assignment of a new 

judge and trial. Joseph III, 129 A.3d at 410.
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The Honorable Joseph Van Jura presided over a second bench trial. While Judge 

Van Jura found that the articles contained false statements, he concluded that Joseph 

was not entitled to recover damages because he failed to establish that he suffered any 

impairment of reputation or standing in the community. Id. at 411. The trial court found 

the testimony of Joseph and his daughter that he had lost friendships and his social life 

had been impaired to be incredible, as Joseph had made the same claims in relation to 

injuries that he suffered in a car accident. Id. Further, the trial court found that Joseph 

completely failed to put forth a single member of the community that held a diminished 

view of him because of allegations that he was connected to organized crime. Id. at 434. 

Because Joseph failed to establish any harm caused by the articles, a verdict was entered

for the media defendants. Judge Van Jura’s term having expired, the Honorable Lesa S. 

Gelb denied Joseph’s post-trial motion seeking JNOV or a new trial. Id. at 415. 

The Superior Court reversed, disagreeing with the conclusion that Joseph had 

failed to establish that he had suffered harm as a result of the articles. Although 

recognizing that the trial court did not believe Joseph’s (or his daughter’s) testimony 

regarding harm to his reputation, the Superior Court explained that the injuries from 

defamatory statements include not only reputational harm, but also personal humiliation 

and mental anguish. Id. at 417 (discussing Joseph v. Scranton Times, L.P., 89 A.3d 251 

(Pa. Super. 2014) (“Joseph II”), appeal granted, 105 A.3d 655 (Pa. 2014)). In this regard, 

the Superior Court concluded that it was error to ignore the testimony of Joseph, his son 

and his daughter-in-law, all of whom, in the Superior Court’s view, established that Joseph 

had suffered emotional distress, mental anguish and personal humiliation because of the 

articles. Id. The Superior Court noted that the trial court had not found this testimony to 
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be incredible, but had instead ignored it entirely. Id. This error, the court concluded, 

entitled Joseph to a new trial. Id. at 420.

In Joseph III, this Court reversed. We began by reviewing specific principles 

imposed by the First Amendment to the United States Constitution9that govern the 

analysis of causation in private figure defamation cases. A state's legitimate interest in 

compensating private individuals for injury to reputation “extends no further than

compensation for actual injury," and that injury must flow from "the publication of a false 

fact.'" Joseph III, 129 A.3d at 426 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 

349 (1974)). As such, the First Amendment requires that, in cases where the alleged 

defamation is published negligently, a private figure must establish through "competent 

evidence" that the falsehood caused an actual injury. Id. at 426 (quoting Gertz, 418 U.S. 

at 350). In accordance therewith, in Joseph III we indicated that "it is incumbent upon 

[private figure] plaintiffs to establish a causal connection between the negligently 

published falsehood and the actual injuries which they have suffered." Id. at 429. To do 

so, a plaintiff must prove that the negligently published falsehood was both the cause-infact and the proximate cause of the injuries: (1) "but for” the negligently published 

falsehood the plaintiff would not have sustained the injury, and (2) the falsehood was "a 

substantial factor in bringing about the plaintiff's injury." Id. In sum, we held that 

 

9

In Joseph III, this Court acknowledged that in light of landmark U.S. Supreme Court 

defamation decisions, we may not interpret our state's Constitution as providing broader 

free expression rights than does its counterpart. Joseph III, 129 A.3d at 428; see also 

Norton v. Glenn, 860 A.2d 48, 58 (Pa. 2004) {“[T]he protections accorded ... by the U.S. 

Supreme Court to the right of free expression in defamation actions ... demarcate the 

outer boundaries of our Commonwealth's free expression provision.”); American Future 

Sys., 923 A.2d at 395 (“[I]n the context of defamation law the state Constitution's free 

speech guarantees are no more extensive than those of the First Amendment.”). 
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Pennsylvania law requires that a private figure show the falsehood caused an actual injury 

to his reputation, and that "proof of actual injury to ... reputation is a prerequisite to the 

recovery of damages for other actual injuries, including mental and emotional injuries." 

Id. at 429-30. A plaintiff may establish causation “with any evidence, direct or 

circumstantial, which tends to prove the media defendant's libelous publication caused 

the alleged actual injury.” Id. at 429 (citing Hamil v. Bashline, 392 A.2d 1280, 1285

(1978)).

Given the requirement of proof of actual injury to reputation, in Joseph III we held 

that the Superior Court had erred in ruling that Joseph could recover for mental and 

emotional injury without establishing reputational harm. Id. at 433. Of particular 

importance to the issues presented here, this Court also rejected the Superior Court’s 

determination that the trial court had ignored the testimony of Joseph, his son and 

daughter-in-law. Id. We pointed out that, to the contrary, it was within the trial court’s 

discretion, as the factfinder, to reject this testimony, citing the well-established standard 

that questions of credibility and conflicts in evidence are for trial courts to resolve, not 

appellate courts. Id. (citing Dept. of Trans., Bureau of Traffic Safety v. O’Connell, 555 

A.2d 873, 875 (Pa. 1989)). We admonished the Superior Court for its approach, in which 

it “scour[ed] the record for evidence which could, arguably, support the finding the articles 

caused [Joseph] to suffer personal humiliation and anguish, and then ... suggest[ed] that 

the trial court erred in disregarding th[is] evidence” as contrary to the abuse of discretion 

standard it was bound to apply. Id. We indicated that “[w]here, as here, the plaintiffs are 

private figure plaintiffs, this Court has held that Pennsylvania requires private figures to 

prove, at a minimum, negligence in a civil libel case.” Id. at 428 (citing American Future 
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Sys., Inc., 923 A.2d at 400). We concluded by acknowledging that “[t]he fact that the 

Superior Court would have reached a decision contrary to the trial court based on facts 

in the record does not constitute an abuse of discretion.” Id. 

In reversing the trial court’s refusal to grant JNOV on compensatory damages, the 

Superior Court framed the issue as whether Dr. Menkowitz proved that the injury to his 

reputation was caused by the “allegedly false statements or innuendos” in the Statement, 

as opposed to the “truthful reporting of the suspension” in the Article. Menkowitz, 176 

A.3d at 989. The Superior Court first indicated that “not one witness testified that his or 

her view of the physician changed as a result of this communication.” Id. It noted Dr. 

Menkowitz’s testimony “that other hospitals with which he was associated read the article 

and stopped using him,” but stated that this testimony was “similarly deficient as it failed 

to distinguish whether the alleged injury to reputation was caused by the suspension or 

the article.” Id. Finally, the court cited to instances in the evidentiary record where (1) 

Dr. Menkowitz and his expert witness indicated that a suspension alone could be 

damaging to one’s reputation, and (2) an elderly man told Dr. Menkowitz that he 

recognized his name because “he remembered I was the doctor who was kicked out of 

the hospital.” Id. In summary, the court held that “[a]ll of the foregoing proof tends to 

confirm that any damage to Dr. Menkowitz flowed from the suspension itself, not any 

implication of sexual or physical abuse.” Id. (emphasis in original).

In support of the Superior Court’s reasoning, Appellees insist that Joseph III has 

no application because here, unlike in Joseph III, the Superior Court did not weigh any 
[J-13-2019] - 18

evidence or hold that the causation evidence presented was unpersuasive.10 Appellees’ 

Brief at 26. Instead, Appellees contend that the Superior Court merely held that Dr. 

Menkowitz had presented no evidence linking his reputational injuries to the false 

implications of improprieties in the Statement. Id. Unlike Joseph III, Appellees argue that 

this is not a case where the Superior Court “scoured the trial record” to find evidence that 

supported its preferred outcome. Id. at 28. 

We disagree with Appellees’ contentions, as we conclude that the Superior Court 

erred when reviewing the trial court’s denial of JNOV relief. First, in reversing the trial 

court’s denial of Appellees’ motion for JNOV, the Superior Court did not reach a finding 

that the trial court had abused its discretion or committed an error of law. To the contrary, 

the intermediate appellate court did not mention the evidence cited by the trial court in its 

Rule 1925(a) opinion in support of its denial of JNOV. In particular, the Superior Court

overlooked the testimony of Dr. Menkowitz’s principal causation witness, Attorney 

Krawitz, who testified that after reading the Article, he wrote a letter to another attorney 

 

10

 Appellees attempt to distinguish Joseph III on two additional grounds. First, Appellees 

contend that the two cases involve different types of claims, since Joseph III involved 

claims of direct defamatory statements while this case involves a claim of defamation by 

implication. Appellees’ Brief at 27. We cannot agree with this argument, since both cases 

raise the same foundational issue as to whether the plaintiff presented sufficient 

competent evidence to tie the defamatory statements in question to the plaintiff’s claims 

for damages. 

Second, Appellees claim that Joseph III's deference requirement attaches only when an 

appellate court wrongly second-guesses a trial court’s finding that the plaintiff failed to 

support its damage claim with sufficient competent evidence, but does not apply with the 

same force when the appellate court second-guesses a trial court’s finding that the 

plaintiff did introduce the necessary support for its claim. Appellees’ Brief at 28. We do 

not agree that Joseph III’s deference requirement is to be limited in this respect, as an 

appellate court’s standard of review over a trial court’s ruling on a request for JNOV is 

fundamentally the same in all cases. 
[J-13-2019] - 19

who was using Dr. Menkowitz as an expert witness and informed him that Dr. Menkowitz

had been accused of committing “improper sexual advances on his patients.” Trial Court 

Opinion, 9/19/2014, at 25. 

Second, contrary to Appellees’ contention, the Superior Court here did in fact 

“scour the record” to identify evidence that supported its outcome. The trial court made 

no mention of the testimony of Dr. Menkowitz11 or his expert witness regarding the 

potential damage to reputation that may result from a hospital suspension. The trial court 

also did not include in its ruling any reference to Dr. Menkowitz’s recollection of an elderly 

man who remembered his name because he had been “kicked out of the hospital.” As 

indicated hereinabove, when reviewing a denial of JNOV, the reviewing court should limit 

its inquiry as to whether there is sufficient competent evidence to support the factfinder’s 

verdict, and in this regard the court must reject all unfavorable testimony and inferences. 

See Justice, __ A.3d __, 2019 WL 2324277. The Superior Court did not do so, as it 

instead used contrary evidence as the principal support for its conclusion that “any 

damage to Dr. Menkowitz flowed from the suspension itself, not any implication of sexual 

or physical abuse.” Menkowitz, 176 A.3d at 989.

Third, and perhaps most importantly, the Superior Court, unlike the trial court, did 

not give Menkowitz, as the verdict winner, the benefit of every reasonable inference 

arising from the evidence while resolving any doubts in his favor. Contrary to the Superior 

Court’s contention that “not one witness testified that his or her view of the physician 

 

11

 In other testimony, Dr. Menkowitz testified that he suffered no harmful effects (e.g., 

depression) as a result of the Article’s report of his suspension. N.T., 4/15/2014, at 252 

(“I was pretty confident that I had good legal counsel, and they were going to resolve the 

issue, and I would be back doing what I loved to do.”).
[J-13-2019] - 20

changed as a result of this communication,” id., the trial court specifically identified 

Attorney Krawitz as one such individual. Based upon its review of the evidentiary record, 

the trial court determined that Attorney Krawitz “testified that he believed the Article 

implied Dr. Menkowitz made ‘improper sexual advances on his patients.’” Trial Court 

Opinion, 9/19/2014, at 15. The Superior Court disregarded this testimony on the grounds 

that Attorney Krawitz was unable to link his impression that Dr. Menkowitz had sexually 

abused a female patient to the Article. Menkowitz, 176 A.3d at 983 n.11 (indicating that 

Attorney Krawitz “vaguely stated that he ‘obtained or read from multiple publications 

articles about Dr. Menkowitz’”). In its Rule 1925(a) opinion, however, the trial court found 

precisely to the contrary, quoting the following testimony in the record relating to his belief 

about Dr. Menkowitz’s sexual improprieties:

Counsel: Did you read an Article that accused him of 

professional misconduct with respect to his treatment 

of an elderly, female patient?

Krawitz: I did.

Trial Court Opinion, 9/19/2014, at 26 (quoting N.T., 4/15/2014, at 361). Attorney Krawitz 

further testified that he had read the Article in the Mercury. N.T., 4/15/2014, at 363 (“I 

saw that Article and I had that Article based upon my research.”). Based upon this 

testimony, the trial court, drawing all inferences in favor of Dr. Menkowitz as the verdict 

winner, concluded that he had presented sufficient evidence to establish a causal link 

between the Statement in the Article and Dr. Menkowitz’s reputational harm – such that 

a reasonable juror could have concluded that Attorney Krawitz’s reading of the Statement 

in the Article had damaged Dr. Menkowitz’s reputation in Attorney Krawitz’s eyes. Trial 

Court Opinion, 9/19/2014, at 25-26. 
[J-13-2019] - 21

Dr. Menkowitz’s own testimony also established the necessary causal link between 

the Statement and the harm to his reputation. Dr. Menkowitz testified as follows: 

Menkowitz: Well, you know, as a physician, when someone says

something about "professional misconduct," I am 

thinking I gave you the wrong medication, I operated 

on the wrong leg; you know, what in the world did I do 

wrong from a medical standpoint.

* * *

All the other Hospitals I was associated with read the 

article and asked me to resign my appointments. 

Lawyers that used me to evaluate patients stopped 

using me and most importantly patients stopped

coming to see me. Those who read the article drew 

negative inferences, and those who only heard the 

rumor drew worse conclusions. The rumors spread 

as far as Hawaii and the incident became 

sensationalized with negative connotations.

Trial Court Opinion, 9/19/2014, at 26 (quoting N.T., 4/15/2014, at 250, 262) (emphasis 

added). Dr. Menkowitz’s references to “rumors” in this testimony permits a reasonable 

inference in his favor that the alleged damage to his reputation was the result not of the 

Article’s report of his suspension, but rather more specifically to the Statement, as the 

Statement referenced “rampant rumors of professional misconduct regarding his 

treatment of an older female patient.” Menkowitz, 176 A.3d at 973 (emphasis added). In 

addition, Dr. Menkowitz testified that he stopped receiving patient referrals and lost 

privileges at other hospitals not at the time of his suspension, but only after publication of 

the Article containing the Statement. N.T., 4/15/2014, at 251 (noting that after the 

suspension, “I continued to be very busy, and I was just taking patients to other facilities 

to operate on them.”). Based upon its review of the trial record, the trial court, again 

drawing all reasonable inferences in Dr. Menkowitz’s favor, concluded that the “evidence 
[J-13-2019] - 22

at trial, including [Dr. Menkowitz’s] own testimony, provided a sufficient basis for his 

compensatory damage award based upon harm to his reputation.” Trial Court Opinion, 

9/19/2014, at 26.

In this case, the Superior Court’s standard of review in connection with the trial 

court’s denial of JNOV was to determine whether the trial court had abused its discretion 

when it determined that sufficient, competent evidence existed in the trial record to sustain 

the jury’s verdict. For the reasons set forth herein, we conclude that the Superior Court 

failed to do so.12 Instead, the Superior Court cited to other evidence that could support a 

contrary conclusion and, in so doing, did not review the record in the light most favorable 

to the verdict winner and afford him the benefit of all reasonable inferences. As a result, 

the Superior Court disregarded this Court’s holding in Joseph III by failing to apply the 

appropriate standards of causation and deference.

Accordingly, we reverse the Superior Court’s order in the present case granting 

JNOV in favor of Appellees. Because the intermediate appellate court did not rule on the 

other issues the parties raised before it, we remand to that court for further proceedings.

Chief Justice Saylor and Justices Baer, Todd, Dougherty, Wecht and Mundy join 

the opinion.

 

12

 In their brief filed with this Court, Appellees raise two additional issues: (1) because 

the First Amendment requires that a private figure establish that his/her injury was caused 

by a false statement, a trial court’s denial of JNOV should be subject to an independent 

appellate review (rather than an abuse of discretion analysis); and (2) the Superior Court 

erred in its determination that the Statement was capable of defamatory implication. This 

Court did not grant allocatur to consider these issues, however, and thus they are beyond 

the scope of our present review.