Joseph Pacitti; Ben Cinquegrana v. Richard E. Durr

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2105
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JOSEPH PACITTI; BEN CINQUEGRANA,
Appellants
v.
RICHARD E. DURR; JANE DOE
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 05-cv-317)
District Judge: Honorable Joy Flowers Conti
_______________
Submitted Under Third Circuit LAR 34.1(a)
February 5, 2009
Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.
(Filed: February 11, 2009)
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OPINION OF THE COURT
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_______________
*Honorable Alan D. Lourie, Circuit Judge of the United States Court of Appeals for
the Federal Circuit, sitting by designation.

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JORDAN, Circuit Judge.
Plaintiffs Joseph Pacitti and Ben Cinquegrana appeal an order from the United
States District Court for the Western District of Pennsylvania granting summary judgment
to Defendant Richard E. Durr on Pacitti’s claims of defamation of character, invasion of
privacy, and ethnic intimidation and on Cinquegrana’s claim of defamation of character.
Because the District Court correctly applied the law that the parties agreed was applicable
to the Plaintiffs’ claims and because we agree that there are no genuine issues of material
fact, we will affirm.
I. Background
The seeds of acrimony in this case can be described briefly. Pacitti and Durr both
own condominiums in a community called “Seapointe,” in Key Colony Beach, Florida.
In March 2003, Durr was appointed President of the Seapointe Condominium Association
Board of Directors. In that capacity, he wrote Pacitti a series of letters regarding matters
related to the Association, and he included allegations that Pacitti had failed to timely pay
his association fees, had made unapproved renovations to his condominium, and was
violating the Seapointe guest policy. Durr mentioned these same issues in memoranda
and letters he sent to other Seapointe unit owners. Pacitti alleges that Durr also searched
public records regarding encumbrances on Pacitti’s unit, entered Pacitti’s unit without
permission while it was being remodeled, and made a derogatory remark about Pacitti’s
Italian heritage after an Association meeting.

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1Plaintiffs also filed claims for harassment and conspiracy. Those claims,
however, were dismissed by the District Court early in this litigation and are not
mentioned by Plaintiffs in this appeal.
3
Cinquegrana owns a construction company that was hired by Pacitti and other unit
owners to perform renovation projects at Seapointe. As President of the Board, Durr sent
Cinquegrana letters concerning Association matters, including alleged damage to a
Seapointe elevator and payment for engineering work performed at Seapointe by an
associate of Cinquegrana’s. Cinquegrana also alleges that, during a face-to-face
confrontation, Durr called him a liar and a thief and made an offensive remark about his
Italian heritage.
Pacitti and Cinquegrana filed suit against Durr in the Western District of
Pennsylvania, where Durr maintains his principle residence. As noted earlier, Pacitti
alleges state law claims for defamation, invasion of privacy, and ethic intimidation, and
Cinquegrana alleges a claim for defamation. The District Court granted summary1
judgment to Durr on all of the claims and issued a thorough explanation of its holding.
The Court applied Pennsylvania law and concluded that the communications that formed
the basis for Pacitti’s defamation claims, to the extent they could be attributed to Durr,
were either substantially true, or privileged, or not capable of defamatory meaning. The
Court further determined that Pacitti had failed to produce sufficient evidence to establish
his claim for invasion of privacy. Finally, the Court held that, because Pacitti had not
established any of the offenses that are a prerequisite for a claim of ethnic intimidation, he

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2 The District Court had diversity jurisdiction over this case pursuant to 28 U.S.C.
§ 1332. We have appellate jurisdiction over the District Court’s final order, under 28
U.S.C. § 1291, and exercise plenary review over the District Court’s decision to grant
summary judgment. Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008).
Summary judgment should be granted “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
3The Court also correctly noted and relied on the lack of defamatory meaning of
certain statements as to which Pacitti complained.
4
could not maintain that claim either. As to Cinquegrana’s defamation claim, the Court
determined that the communications complained of, to the extent not already addressed by
the analysis pertaining to Pacitti’s claims, were only published to Cinquegrana himself,
not to any third party, and therefore could not be defamatory. Pacitti and Cinquegrana
filed a timely notice of appeal and now argue that the District Court erred in granting
Durr’s motion for summary judgment.
II. Discussion 2
A. Defamation
Applying Pennsylvania law, the District Court granted summary judgment to Durr
on Plaintiffs’ defamation claims, largely on the basis of two defenses: privilege and truth.3
To establish a defamation claim under Pennsylvania law, Plaintiffs needed to prove that
Durr published defamatory material in a negligent manner. American Future Sys., Inc. v.
BBB of Eastern Pa., 923 A.2d 389, 400 (Pa. 2007); see also Joseph v. Scranton Times
L.P., 959 A.2d 322, 342 (Pa.Super. 2008). Negligence in this context is the publication of

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information with a want of reasonable care to ascertain the truth. Joseph, 959 A.2d at 342
(citing Rutt v. Bethlehems’ Globe Publ'g Co., 484 A.2d 72, 83 (Pa.Super. 1984)).
Although Pennsylvania law has historically recognized a conditional privilege for
“[c]ommunications which are made on a proper occasion, from a proper motive, in a
proper manner, and which are based upon reasonable cause,” Moore v. Cobb-Nettleton,
889 A.2d 1262, 1268 (Pa.Super. 2005) (citation omitted), a plaintiff can, by establishing
negligence, show that the defendant abused any such privilege. See Banas v. Matthews
International Corp., 502 A.2d 637, 638-39 (Pa.Super. 1985). Thus, under current
Pennsylvania law, a showing of negligence is both required for a plaintiff to prove a
defamation claim and sufficient for a plaintiff to overcome the conditional privilege
provided by state law. See American Future Sys., 923 A.2d at 397. The Pennsylvania
Supreme Court recently noted that, because a plaintiff can overcome state law conditional
privileges simply by proving a defamation claim, the conditional privileges have “lost
their significance” and become “superfluous.” Id. at 397-98 (citation omitted).
Although the District Court discussed certain communications in terms of
conditional privilege, the Court correctly analyzed them according to the dispositive
negligence standard, saying, for example, that no reasonable finder of fact could conclude
that Durr had been negligent in making them. (District Court Op. at 30.)
Moreover, in Pennsylvania truth is an absolute defense to a defamation claim and a
defendant need only show substantial, rather than complete, truth. See Bobb v. Kraybill,

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4In its analysis of Plaintiffs’ defamation claims, the District Court did not address
the allegations regarding Durr’s oral statements. Neither have Plaintiffs argued on appeal
that those statements were defamatory. Plaintiffs have, instead, limited their arguments
on the defamation claims to the various written statements. Therefore, we too have
limited our defamation analysis to Durr’s letters and memoranda.
5 Under Pennsylvania law, an ethnic intimidation claim must be based on an
underlying offense. 18 Pa.C.S. § 2710(a); see Pennsylvania v. Robinson, 936 A.2d 107,
109 (Pa.Super. 2007). In this case, Pacitti alleges that Durr harassed him, in violation of
18 Pa.C.S. § 2709 (a)(3). The District Court correctly determined that Pacitti could not
establish harassment and therefore could not maintain his ethnic intimidation claim.
6
511 A.2d 1379, 1380 (Pa.Super. 1986) (citation omitted). In its detailed opinion, the
District Court set forth the bases for its conclusion that various written communications4
of which the Plaintiffs complain were substantially true. In effect, the Court held that no
reasonable juror could conclude that the Plaintiffs’ evidence supports a finding that the
communications were not substantially true. On this record, that conclusion is sound.
B. Invasion of Privacy and Ethnic Intimidation
The District Court fully and correctly analyzed Pacitti’s invasion of privacy and
ethnic intimidation claims, and no further discussion of them is required.5
III. Conclusion
For the foregoing reasons, the judgment of the District Court will be affirmed.

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