Pilchesky v. Gatelli, PICS Case No. 11-0045 (Pa. Super. Jan. 5, 2011) Freedberg, J.; Colville, J., concurring and dissenting (36 pages).

Superior Court

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SUPERIOR COURT

CIVIL PRACTICE

Disclosure of Identity • Interlocutory Orders • First Amendment • Modified Dendrite/Cahill Test

Pilchesky v. Gatelli, PICS Case No. 11-0045 (Pa. Super. Jan. 5, 2011) Freedberg, J.; Colville, J., concurring and dissenting (36 pages).

Appellant appealed from the trial court's order directing him to disclose the identities of six John Doe defendants who appellee and cross-appellant Judy Gatelli claimed pseudonymously published defamatory statements about her on an Internet message board hosted by appellant. Appellee cross-appealed the order seeking the identities of eight additional John Doe defendants. The court quashed the appeals in part, vacated the order and remanded.

Appellant Joseph Pilchesky maintained a Web site that published articles critical of the city government of Scranton. Registered users selected a unique username, or "pseudonym." Only registered users could post a message to the message board. Every message was attributed to the registered user's pseudonym. Appellant maintained a list of registered users and their pseudonyms. Certain messages posted to the message board were the subject of this appeal and cross-appeal.

In April 2007, appellant filed a complaint against appellee, claiming defamation, retaliation and harassment. Appellant alleged that appellee, the former city council president, falsely and publicly accused him of "terrorism, making death threats, stalking, harassment by communication and intimidation" in the course of his political activities and the operation of his Web site. Appellee alleged that appellant published numerous defamatory statements on his Web site resulting in injury to her good name and reputation, personal humiliation and embarrassment. Appellee also joined appellant's wife and 100 John Doe defendants claiming defamation, civil conspiracy and intentional infliction of emotional distress.

Appellee filed a petition to compel, inter alia, the disclosure of the identity of the John Doe defendants. The court denied appellee's petition to compel for failure to provide sufficient information to warrant the disclosure of the identity of the John Doe defendants. Appellee filed an amended petition. The court ordered the petition and other relevant materials to be forwarded to the John Doe defendants and granted each defendant 30 days to file an objection to the disclosure of his identity.

The attorney for the represented Doe defendants filed objections to disclosure. No objections were filed by any unrepresented Doe defendants. Appellant was directed to disclose the identity of six Doe defendants. The trial court did not direct the disclosure of any represented Doe defendants. Appellant appealed. Appellee filed a cross-appeal.

Prior to addressing the merits, the court examined whether the order of the trial court was appealable. Only the trial discovery order directing the disclosure of the identity of several Doe defendants was entitled to collateral review.

On the merits, the court noted that the First Amendment right to speak anonymously is not absolute. Some regulation of speech may be imposed by the states. The court found that no Pennsylvania appellate court has addressed the appropriate standard by which the identity of a person who chooses to speak pseudonymously may be disclosed.

The court looked to the cases of Dendrite Int'l, Inc. v. Doe , 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and Doe No. 1 v. Cahill , 884 A.2d 451 (De. 2005) and fashioned a four-part test that balanced the speaker's right to remain anonymous with the defamation plaintiff's right to seek redress. The elements of this test are: 1) proper notice; 2) sufficient evidence to establish a prima facie case for all elements of a defamation claim such as would survive a motion for summary judgment; 3) an affidavit of good faith and necessity; and 4) balancing defendant's First Amendment rights against the strength of plaintiffs' prima facie case. The balancing test should include an examination of the defamatory nature of the comments, the quantity and quality of evidence presented, whether any comments were privileged and the forum in which the actionable comments arose.

The trial court did not conduct a balancing test in this case. The court vacated the order of the trial court and remanded for further proceedings consistent with this opinion. Appellee was permitted to file an amended petition.

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