Thursday, December 27, 2012

Blog Defamation Suit To Move Forward, Sez Judge

Judge Smith at his other job
Breaking new legal ground, Northampton County Judge Edward Smith has applied the law of defamation to the Wild West of the Internet, the blogosphere. In a careful, 39-page, opinion issued Thursday afternoon, he has upheld a libel action that I've filed against West Easton blogger Tricia Mezzacappa.

In various Internet outlets, Mezzacappa has made specific claims of assault, animal abuse, stalking, pedophilia and even tax fraud. I filed suit in April, and Mezzacappa  asked the Court to toss the complaint. Judge Smith refused.

She tried to claim that her defamation was just her opinion. Judge Smith disagreed. "Contrary to Mezzacappa's contention, these statements do not merely appear to be expressions of non-actionable opinion. Instead, these statements not only appear to be defamatory, they appear to be defamatory per se."

Judge Smith also rejected Mezzacappa's claim that she was merely exercising a First Amendment right to raise matters of public concern. "[W]e cannot agree with Mezzacappa that all of the contested statements in this case raise matters of public concern as the overwhelming majority of the statements involve O'Hare's interaction with Mezzacappa, her property, and her pig."

Attorney Richard Orloski represents me in this matter.

Here is a scanned copy of Judge Smith's Opinion, which presents a great guide to the balance between First Amendment protected speech and online defamation.

smith1

Updated Friday, 9 PM.

75 comments:

Anonymous said...

Why do you hate this woman so much?

Anonymous said...

I agree, this case will break new ground especially since both parties are in the public eye as bloggers and/or former candidates, etc. The standard is high but not so much to overcome where an actor has reason or should be held to know his or her statements are patently false. This will be new context in the internet realm. I applaud you for taking this forward knowing the reach it might have as precedent. This case may be more significant than many know, especially if the court issues a well-reasoned reported opinion. -nlvlogic

Anonymous said...

Yes, this could rise to the level of an interesting national debate. I doubt it, because this type of suit is probably more common then we realize. The internet is no longer a "young" idea.

The defense could be, Bernie, as a well-known public personality, is subject to smears others are not.

Without direct physical threats, and they might well be out there, she could endure this unscathed.

Can you respond to this post, Bernie?

Uncle Remus said...

I smell a pig roast acoming

Anonymous said...

People get sued everyday. Most are heard and most are then denieed.

This is not a new case. The judge is merely saying, ok it can proceed. He willnot allow Mr. O'Hare to use the court as his personal revenge machine. All evidence will be confined to Ms. M and will involve no one else.

The court willnot be made a mockery of and will no doubt find this to be a routine matter of ex-lovers having a falling out and attacking each other. Bernie posting the nice poicture of the judge to get a leg up is noted and will be seen for what it is by the court.

Waste of the courts time. I hope both are forced to reimburse the taxpayers, as I doubt either pays taxes.

Bernie O'Hare said...

5:51, You must have me mixed up with her. I don't hate anyone. I have never wished anyone dead, as she has to me and others on numerous occasions.

Blog Mentor said...

Can pets be considered assets in the event of a judgement that bankrupts her?

Bernie O'Hare said...

6:46, That defense has already been rejected by Judge Smith's opinion. This case establishes that bloggers can be held responsible for their own defamation as well as defamatory "anonymous" comments on a moderated bog.

I am subject to smears that others are not, but that does not extend to accusations having nothing to do with matters of public concern. She has made those accusations, and as recently as today. She has to accept responsibility for them.

Anonymous said...

I'm 6:46. Bernie, I'm on your side, and I thank you for the response!

Bernie O'Hare said...

"The court willnot be made a mockery of and will no doubt find this to be a routine matter of ex-lovers having a falling out and attacking each other"

The Court has already ruled. Sorry.

" Bernie posting the nice poicture of the judge to get a leg up is noted and will be seen for what it is by the court."

I attend public meetings and take pictures so people can see who I am discussing. It's called photo-journalism. I'm sorry I could not find a bad picture of Judge Smith.

Blog Mentor said...

So when does this go to trial homeboy?

Anonymous said...

Somehow, the current Blog Mentor is not THAT Blog Mentor. Either way, both are losers.

Bernie O'Hare said...

8:42, Understood. Tomorrow, I will scan the opinion and load it or link to it from here. It establishes some ground rules here in the blogosphere.

Contrary to what 7:36 asserts, this case will extend to who was encouraging and instigating Mezzacappa. In fact, I believe the evidence will show that Mezzacappa was a part of an organized group of individuals who wanted to shout me down for exercising my First Amendment rights. It may very well lead to some public officials.

Molovinsky's Goon Squadron said...

Why can't you leave this poor woman alone?

Bernie O'Hare said...

Because I don't take kindly to false accusations of stalking, assault, pedophilia and tax fraud. I'm funny that way. I suspect the evidence will lead to you.

Anonymous said...

Bernie-

We MUST fight back against these bullies! The only thing they fear are BIGGER bullies. Let's be that!

Be that, but in a more mature way. Take a higher level and STILL put these mental midgets in their proper place.

We will not yield! Their kind of noise will NOT be heard.

Anonymous said...

Bernie,

When you say it may well lead to public officials, do you mean sitting, elected, public officials?

Anonymous said...

Doesn't it suck to not be out riding Bernie? I'm going nuts. As far as the suit goes , she was way out of line . It's fine to have arguments and slag eachother off, she crossed some lines in my opinion

Anonymous said...

Mr. O'Hare,
Congratulations on your victory. Do you and Mr. Orloski have a timetable for getting this case to trial? I'm certain a jury will have no trouble finding in your favor on liability. The big issue will be the amount of damages. I'm expecting a six figure verdict. Best of luck!

Bernie O'Hare said...

"When you say it may well lead to public officials, do you mean sitting, elected, public officials?"

Yes.

Anonymous said...

8:58 PM said: "Why can't you leave this poor woman alone?"

When this case is over the woman will be "poor" and probably "alone" as well. Her day of reckoning is coming thanks to Judge Smith.

Bernie O'Hare said...

"Doesn't it suck to not be out riding Bernie? I'm going nuts."

Me, too. It's not the cold, but the earl darkness. I feel I would be pressing my luck going to and from meetings in the dark. But I miss it so much.

Bernie O'Hare said...

" Do you and Mr. Orloski have a timetable for getting this case to trial? I'm certain a jury will have no trouble finding in your favor on liability. "

We have not discussed the ruling or where we go from here. I would expect to see a verdict in about 9-12 months.

Blog Mentor said...

"Me, too. It's not the cold, but the earl darkness. I feel I would be pressing my luck going to and from meetings in the dark. But I miss it so much."

I always thought night riding to be safer in some ways, you can usually tell where other vehicles are much earlier by the headlights. Also they make very affordable led systems.

Bernie O'Hare said...

I have lots of lights on my bike so that is not a problem. But I would have to leave the courthouse, in the dark, at rush hour, to travel to a meeting. After that, I would ride home, in the dark. That's too much for me. I love riding in the dark in the Summer and Fall, but not this time of year.

Anonymous said...

It is still a bizzare case. She says you kicked her pig, you say you didn't. You call her names and she calls you names. I still don't see the great judgement here. You have both set up blogs with the intent of getting coments. Some of the commentors you allowed, have said some very nasty things about her. You have claimed she drinks a drug coctail, is that malicious? You both have thrown yourselves into the public arena, so the court is going to give great leeway in either one of you claiming any real harm by the other.

As to elected officials, what would that mean? Conspiracy? You know that is almost imppossible to prove even in criminal cases by DA's and their impressive staff. You would have to prove an official, elected or otherwise, made an injurious statement about you with malice intent and or collusion to have it done. How do you prove that?

You have had a thing with this woman for some time and I guess you see some great day of reckoning somewhere down the road but I just don't see it.

The whackos on this blog that cheer you on, obvioulsy are playing to your delusions but in reality, other than maybe a judgement against this woamn for much less than her home, I don't see where this is going.

Classic he said she said but on blogs. I still question its place on an already busy court schedule. Frankly, it sounds like you are tryinig to shut her up every bit as much as you claim she is trying to shut you up.

Bernie O'Hare said...

Like I said, the court has already ruled And she herself has stated she needs to take a drug cocktail.

Bernie O'Hare said...

"Frankly, it sounds like you are tryinig to shut her up every bit as much as you claim she is trying to shut you up."

What I am trying to do, and you know this, is to prevent people from trying to shout others down with outright lies and per se defamation. There's nothing wrong with boisterous debate. There's plenty wrong with false and very serious accusations of criminal behavior,and accusations that can be proved false by her own statements and police reports. There's plenty wrong when the defaming party also makes death wishes. There;s plenty wrong when assholes like you encourage and instigate her.

Anonymous said...

I neither encourage nor instigate anyone. I thiink both of you are crazy. Your over the top response shows your own intolerance and instability.

Your response appears to be more about any other blog taking away from your blog. I guess the 'Saving Private Gracedale" folks are next on your hit list.

Bernie O'Hare said...

Your previous comment, which attempts to minimize clearly outrageous and defamatory behavior, is most certainly encouragement and instigation. And the exact nature will be developed via discovery, whether you like it or not. My guess is you won't like it one bit.

Anonymous said...

Stating the obvcious is neither malicious nor beneficient, it just is!

From Gods lips to your ears. I still think you are both acting crazy.

Bernie O'Hare said...

Oh you are God now.

Blog Mentor said...

B.O good luck with your lawsuit, hypothetical question. If the ducking stool was still an option would accept that as Mezzacappa's sentence over a financial sum of $50,000?

Bernie O'Hare said...

I am seeking damages for her defamation.

Anonymous said...

Hey "Blog Mentor" nice gay picture. What the Hell is a ducking stool, some gay sex toy?

Blog Mentor said...

Google it you plebe

Bill said...

Please be careful Bernie, she does not sound stable

Anonymous said...

I think it's "dunking" stool. And Im from UMBT, we still use it.

Anonymous said...

To all the amateur lawyers in these comments: This is a valid lawsuit. A judge reviewed O'Hare's legal complaint and said it passed muster and may proceed. O'Hare has a respected lawyer on his side. Mezzacappa is winging it without the assistance of counsel. Judge Smith said the statements made by Mezzacappa about O'Hare appear to be defamatory per se. Statements falsely accusing someone of a crime are in that "per se" category. O'Hare is not trying to "shut her up." He is trying to hold her accountable in a court of law. This case is not a "he said, she said." The statements Mezzacappa made accusing O'Hare of crimes are either true or false. I think the discovery process, which could include depositions and the production of documents, will be very revealing.

Anonymous said...

oh no, i have jury duty in Jan. well maybe it's good too. maybe i can get back at BO!! hahahha

O'Hare's Komedy Klowns said...

Mezzacappa is the real victim here, all this slanderous talk.

Anonymous said...

The judge will letting the lawsuit proceed is not a verdict, jackass. The judge is not going to let his courtroom become a zoo for O'Hare's agenda of revenge. The discovery process will not reveal as much as you goofs seem to think. The first amendment rights of people and their peecievied freedom of expression and protection from someone seeking only to defmae people and not really germaine to the actual case will be tossed faster than a bad taco.

You folks are funny, dumb butfunny.

Jack

Bernie O'Hare said...

" The discovery process will not reveal as much as you goofs seem to think."

Circling the wagons? Actually, the case has not been tossed. The judge has instead ruled that the complained of statements are defamatory, and most of the are per se defamatory. Most libel cases do not get this stage. This one did.

Anonymous said...

All that really means Benrie is that any defamatory statement Mezza made or allowed on her monitored blog are her responsibility.

I know you have this grand idea that you are somehow going to snare a Lamont McClure or Steve Barron making some statemnt about you but it will never happen. The blog is Mezza's, the comments are Mezza's and as a former practicing attorney you know that. Unless one of these or other persons admits it, it means nothing. I think it is fun that you are trying to scare people but you know I aam right.

If you don't know that, I am glad you no longer practice law.

Remeber emotions and the law don't mix. First semester.

Bernie O'Hare said...

We shall see what we shall see. There is no question in my mind that she was encouraged and instigated. I already know one of the players. But I suspect there are more, and that public officials are involved. And I am not trying to scare anyone. I am fighting for the right to speak freely without fear of disgusting libelous accusations that come from her and possibly from a group whose agenda is similar with hers. But my primary focus right nw is to hold her accountable for what she has done.

Anonymous said...

You must run fast, Bernie.
How did you get between Orloski and an ambulance! lol

Bernie O'Hare said...

Rick is a very good lawyer, as evidenced by Judge Smith's opinion. He has been subjected to all kinds of taunting and harassment from Mezzacappa like this:

"While hunting through yard sales and flea markets recently, I found a special treasure. Its so special in fact that I thought I should give it you, free of charge. It looks and works exactly like a cuckoo clock. On the hour, each hour, the bird emerges from its coop, to sing its tune according to the time. I hung it up, and like clockwork, at three o'clock, the bird emerged. But instead of hooting "CUCKOO, CUCKOO, CUCKOO" it hooted "DISMISSED, DISMISSED, DISMISSED" with a libel case hanging from its beak. Its extraordinary, and yours if you will accept it."

Looks like she needs a new cuckoo clock.

monkey momma said...

If TM took the time to read the judge's statements on this matter, it would certainly be clear to her that she is not in good standing for this case.

But it appears (from her own blog even just yesterday) that she does not understand the severity of the judge's words or the case against her.

It is interesting to see that Orloski, a well known Democrat, is representing O'Hare, whom I think of as Republican. I would think most reasonable people who have read some of TM's own statements would agree that this defamation case is solid. I congratulate O'Hare and Orloski for handling this professionally and seriously. On the other hand, I am sorry that such craziness rose to this level.

Anonymous said...

I appreciated the opportunity to read specifics of this case.

Generally, I conclude the following:

TM has been much more careless with her blog entries and retorts than Bernie. Some of that does cross a certain line.

It will be difficult to be declared a "winner" in a case like this, and any monetary reward will be insignificant, difficult to collect, and washed away by legal fees.

Bernie's chance to prevail,coming in, was probably 55-45 in Bernie's favor. After reading more, I'll increase his position to 60-40.

Bernie O'Hare said...

Monkey Momma,

I find Rick to be a genuine class act. His clients love him. He really cares about them.

I am a Democrat with Republican leanings. I support about as many Rs as Ds, so I don't think it matters what party I'm in. I considered switching, but would just get in trouble with them for supporting too many Democrats. In reality, I'm an independent but don't want to register that way bc I can't then vote in primaries.

Bernie O'Hare said...

"any monetary reward will be insignificant, difficult to collect, and washed away by legal fees."

I have been libeled and continue to be libeled, even after the judge's decision. All of this takes a toll on me personally. The only way to make her stop is to punish her, with punitive damages, to make her think twice. That will be up to a jury.

Anonymous said...

Agree with 9:25, after reading the opinion that is my take as well. The opinion made it clear the court is going to stick to specific facts and I doubt it woill allow Bernie to go on a witch hunt other than one and with that only a few things she said.

The "conspiracy theory" will get as far as the gunman on the grassy knoll.

Bernie O'Hare said...

Worried? You should be.

Bernie O'Hare said...

I've deleted a comment referring to a person whose name can't be mentioned here. Previously I have been told my lawsuit is nonsense and a waste of the court's time. Now, I am being told what I will be able to discover.

Here's reality, which is not always the same as anonymous comments on a blog. A very busy judge spent 39 pages explaining the law of defamation to everyone. It's actually a quite helpful guide. As busy as he is, this case was apparently important to him, probably bc of this relatively new form of communication.

To the extent my discovery is regarded as over-reaching, I will back off. I am interested primarily in this case.

Months ago, Interrogatories and a Request for Production of Documents were served on Mezzacappa. She has not responded. I have not pushed it bc i was waiting for the decision.

On December 19, 2011, she published the Supreme Court Order suspending me. That's fine. It's public record. But it includes a handwritten note, “Enjoy! BV”. Who is this person? Did he email or send her that Order? I've asked her to provide all details on how she acquired it.

Has she allowed this person, posing under numerous pseudonyms like “Worth Repeating Department”,“Blog Coach”, “Blog Mentor” and “A Convenient Friend,” to post comments on her moderated blog?

On November 26, 2011, she said this to “Blog Mentor.” “Thanks again for all your help. The forwarded photos and videos might come in handy. And thanks again for stopping by to teach me how to upload, download, and link items onto the blog. You have been like an angel from heaven … and I am truly grateful for all you have done. And also, your phone calls to the people in the right places are greatly appreciated.”

I believe I am entitled to know:

(a) the name and address of “Blog Mentor;”
(b) a description of the photos and videos provided; and
(c) the identity of the persons, by name, address and phone number, that the “Blog Mentor” contacted on her behalf.

I believe I am entitled to know the name and address of each of her contacts at the IRS, which she claims to have through her deceased father, who apparently was a prominent IRS attorney.

I believe I am entitled to know which of these IRS contacts told her that there are over 300 complaints filed against Ron Angle.

I believe I am entitled to know which IRS contact told her that her complaint against me was misplaced.

If she was lying, I am entitled to know that.

I believe this discovery is entirely appropriate and helps me prove malice against her. I'll be ore than happy to litigate this and a few other points.

But thanks for your anonymous advice.

Anonymous said...

What you "believe" you are entitled to and what you get are two different tings. By the way, my post was not mean or bad in any way. Other than mentionng the name, I don't think it was unfair of mean or anytihng but an opion. I dodn't know there wasa a no name policy.

By the way you failed to mention I wished you and all a Happy Festivus.

Now lets wrestle!

Bernie O'Hare said...

That is true. I had to delete the comment bc of the name but responded to your contention.

Anonymous said...

Without Mezzacappa naming names it will be tough to get past her.
Even if she does, there is an entirely different set of hurdels. However, based on what you have said. You may have something with the "bv" thing. Maybe.

I still think the Gracedale blog deal is a stetch but who knows. People can show sympathy for a person without condoning their actions or hold responsbility for their words. Very high burden of proof.

I have no doubt you will win at least a limited suit against Mexxacappa, what that amounts to in $$ is questionable but I don't think the money is your major concern.

Bobby Gunther Walsh said...

Will the "Blog Mentor" be in violation of your previous settlement terms if he is id'ed by TM in the discovery process? Perhaps the undefeated champion of the blogosphere will suffer his first loss, oopsie!

Bernie O'Hare said...

1:34, I will listen to what my attorney tells me.

Anonymous said...

My guess is 90% of readers here know full well who the Blog Mentor is. I sure do. Other boards correctly name him.

Blog Mentor said...

My lawyer Jackie Childs has been spending his entire Festivus Holiday breaking down the ruling from the Honorable Judge Smith and informed me that all my assets should be ferreted out of the country post haste.

Anonymous said...

Trish is really hot.

Porcine Earl said...

Her latest blogs on Orloski are pure gold, she exposes some of her insanity in the form of an email exchange with B.O's attorney.

Bernie O'Hare said...

Instead of feeling the slightest bit remorseful, she sent several emails taunting my attorney, Rick Orloski. Then she published five vitriolic blogs replete with the same kinds of defamatory accusations that got her sued in the first place. She includes a photoshopped picture of Orloski's head, between and under her legs for some reason.

I hope he enjoys the view.

She also published a photoshopped picture of West Easton Boro Council Prez Kelly Gross, designed to make her look obese. If you click on it, you get a website saying, "Pray the Devil Back to Hell." That theme also appears at the tail end of her most recent gun video, along with the West Easton Boro webpage.

No threat there.

In November, Mezzacappa was found guilty of disorderly conduct after threatening to drag Gross to the river and drown her. She has not appealed the decision, and is paying $30 per month.

Her actions this weekend are a continuation of the libel, a republication, and it constitutes malice.

Anonymous said...

Thanks for pissing away my taxes on ridiculous litigation.

Anonymous said...

I neither encourage nor instigate anyone. I thiink both of you are crazy. Your over the top response shows your own intolerance and instability.

The sense I get is that BOH has been welcomed to the world of the internet, is a dick to everyone, and now it has come back to bite him. In an attempt to save face, he is wasting the courts time to lash out legally rather than the typical tactic employed on the internet for the last two decades - take the flames like a man. Most of us have been flamed on the internet at one point or another. But most of us don't go around attacking people publicly. Why bring all of this bad mojo on yourself, man?

Anonymous said...

BOH 2:44 - Are you new to the internet, satire, and parody? Apparently you are.

Bernie O'Hare said...

9:14 & 9:24, A judge has already determined this is not ridiculous litigation. His Opinion matters a bit more than some anonymous comment.

I have been flamed many times and have very thick skin. But just bc you're angry at me, and don't like what I say, is no excuse for wild, but very serious, allegations of criminal behavior. It is no excuse to continue making them once a suit is filed. That is republication and constitutes malice. It is no justification to continue them after a judge calls those statements defamation per se. It is no reason for taunting emails to my attorney, which started back in April.

This is no game. You have been sued and will be required to take responsibility for your defamatory behavior. You are just digging a deeper hole for yourself.

Bernie O'Hare said...

9:30, There is no satire or parody in false accusations of sexual assault. That is defamation.

Anonymous said...

Boy O'Hare, you are really off your rocker on this one. Where in the decision did you read that the Judge found her guilty of defamation? I read that he only agrees that the allegations you have made survive a demurer.


Its only defamation if YOU CAN PROVE the staements are recklessly false

Bernie O'Hare said...

Take your drug cocktail, Tricia. The most difficult hurdle in a defamation case is whether, as a matter of law, the statements can be considered defamatory. A judge has concluded they are. From there, it will be rather easy to prove that you made or published them. The burden then shifts on you to prove they are true. And you will fail. In fact, the evidence that does exist proves that you made these statements knowing very well that they were false. It is per se defamation, and you have continued to make defamatory statements, even after the ruling against you. You have also taunted my attorney repeatedly and now are even judge shopping, hoping to find one who will tell you what you want to hear. It does not work that way. I'm afraid the only thing that will get your attention is the imposition of punitive damages.

Anonymous said...

Wow! She is letting comments on her blog now. Anonymous ones, too. (wink, wink) Amazing!

Bernie O'Hare said...

Well, I hope she enjoys talking to herself.

Anonymous said...

Is defamation per se a criminal offense in PA?

Bernie O'Hare said...

No.