Arthur Wolk v. Olson, 10-3352, Opposition To Motion To Certify

Case: 10-3352 Document: 003110322744 Page: 1 Date Filed: 10/21/2010
IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
NO. 10-3352
ARTHUR ALAN WOLK, ESQUIRE
Appellant,
V.
WALTER K. OLSON, THEODORE H. FRANK, ESQUIRE,

DAVID M. NIEPORENT, ESQUIRE, THE OVERLAWYERED GROUP
AND OVERLAWYERED.COM
Appellees.
On Appeal from the United States District Court

For the Eastern District of Pennsylvania, No. 2:09-CV-4001
DEFENDANT-APPELLEES' RESPONSE IN OPPOSITION TO PLAINTIFF-

APPELLANT'S MOTION FOR CERTIFICATION TO PENNSYLVANIA
SUPREME COURT ON QUESTIONS OF STATE LAW
WHITE AND WILLIAMS LLP CENTER FOR INDIVIDUAL RIGHTS

Michael N. Onufrak, Esquire Michael E. Rosman, Esquire
Siobhan K. Cole, Esquire 1233 20th Street, NW
1650 Market Street, Suite 1800 Suite 300
One Liberty Place Washington, D.C. 20036
Philadelphia, PA 19103-7395
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I. INTRODUCTION
On April 8, 2007, Defendant-Appellee Theodore H. Frank ("Frank") posted
an article (the "Frank Article") on the weblog Overlawyered.com , containing the
following discussion of the district court decisions in Wolk v. Teledyne Ind., Inc.,
475 F. Supp. 2d 491 (E.D. Pa. 2007) and Taylor v. Teledyne Tech., Inc., 338 F.
Supp. 2d 1323 (N.D. Ga. 2004):
Arthur Alan Wolk v. Teledyne Industries, Inc.

Judge writes scathing opinion about attorney; opponent
attorney mails opinion to client; losing attorney sues
other attorney for defamation. No dice, but even this
ludicrous suit does not result in sanctions.
[Beck/Herrmann]
Beck and Herrmann miss, however, an especially

interesting subplot. Wolk settled the underlying case,
Taylor v. Teledyne, No. CIV.A.1:00-CV-1741-J (N.D.
Ga.), on the condition that the order criticizing him be
vacated. Did Wolk's client suffer from a reduced
settlement so that his attorney could avoid having the
order used against him in other litigation? (The discovery
violation complained about was apparently a repeat
occurrence.) The district court permitted a settlement that
vacated the order, but its only reported inquiry into
whether Wolk did not suffer from a conflict of interest
and was adequately protecting his client's rights was
Wolk's representation to the court that the client was
alright with the size of the settlement. That begs the
question whether the client was fully aware of the
conflict of interest; if, as seems to be the case, the N.D.
Ga. failed to do so, one really wishes courts would do
more to protect fiduciaries of plaintiffs' attorneys before
signing off on settlements. 338 F.Supp.2d 1323, 1327
(N.D. Ga. 2004), aff'd in unpublished summary per
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curiam opinion (11th Cir., Jun. 17, 2005) (App 000034,

45).
The Frank Article criticizing the Northern District of Georgia's procedure
said nothing about Mr. Wolk that had not already been published in the 2004
district court opinion in Taylor:
As to the second matter, the Court expressed concern that

a settlement of the case for less than its value to plaintiffs
not occur simply to allow Mr. Wolk to be rid of an order
that was critical of him. As to this inquiry, plaintiffs'
counsel assured the Court that plaintiffs were aware
generally of what was about to transpire and were in
agreement; further, counsel indicated that plaintiffs
would be receiving a large settlement with which they
were apparently well satisfied.
Taylor, 338 F. Supp. 2d at 1327.
Over two years after the Frank Article was published, Plaintiff-Appellant
Arthur Alan Wolk, ("Appellant" or "Wolk"), instituted this case in the Court of
Common Pleas, Philadelphia County, on May 13, 2009, claiming that Defendant-
Appellees, in their varying capacities as contributing authors, editors and managers
of the legal weblog Overlawyered.com , defamed Wolk and intentionally interfered
with his prospective contractual relations. (App Vol. II, Tab 2, 000037-000042,
Complaint pp. 14-19). 1 Defendant-Appellees removed the case to the Eastern
District of Pennsylvania and thereafter moved to dismiss Wolk's claims pursuant
I For the Court's convenience, a copy of Plaintiff-Appellant's Complaint is attached hereto as Exhibit "A."
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to Fed. R. Civ. P. 12(b)(6) because they were time barred and further, failed to
state cognizable claims because the Frank Article lacks defamatory meaning.
After full briefing and argument, the District Court, Honorable Mary A.
McLaughlin, found that all of Wolk's claims are barred by Pennsylvania's one year
statute of limitations for defamation claims, and rejected Wolk's arguments that
Pennsylvania's discovery rule applied to his mass-media defamation case. (App
Vol. 1, Tab "C," pp. 3-8, Memo. pp. 3-8). 2 Thus, the District Court dismissed
Wolk's case without reaching the lack of defamatory meaning issue. (App Vol 1,
Tab `B").
Wolk now appeals the District Court's dismissal and concurrently requests
that this Court certify a two-part inquiry to the Pennsylvania Supreme Court. As is
fully discussed below, however, Wolk's Motion for Certification should be denied
because (1) the questions posed do not control the outcome of the case, and (2)
according to its own Internal Operating Procedures, the Pennsylvania Supreme
Court will not certify questions that already were decided by this Court. 3d Cir.
L.A.R. 110.0 (2008); 210 Pa. Code § 63.10(B)(4).
In addition, even if Wolk's motion were procedurally correct, a petition to
the Pennsylvania Supreme Court would still be unnecessary and wasteful of
judicial resources because the questions raised are not so novel as to preclude this
2 A copy of the District Court's Memorandum is also attached hereto for the Court's convenience as Exhibit `B."
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Court's ability to predict the Pennsylvania Supreme Court's answers thereto, nor
are they the subject of conflicting decisions in other courts. See, Drozdowski v.
Callahan, No. 07-CV-01233-JF, 2008 WL 375110 at *1 (E.D. Pa. 2008, Feb. 12,
2008), Barrett v. Catacombs Press, 64 F. Supp. 2d 440, 444 (E.D. Pa. 1999),
Bradford v. American Media Operations, Inc., 882 F. Supp. 1508, 1519 (E.D. Pa.
1995) (each holding the discovery rule inapplicable to mass-media defamation
claims). Therefore, Defendant-Appellees respectfully request that this Court deny
Plaintiff-Appellant's Motion for Certification.
II. STANDARD FOR CERTIFICATION

Plaintiff-Appellant's Motion also fails to satisfy the Pennsylvania Supreme
Court's requirement that the question of law presented must not have been
previously decided by the petitioning court. Pursuant to 210 Pa. Code §
63.10(B)(4), the Pennsylvania Supreme Court, "shall not accept certification unless
all facts material to the question of law to be determined are undisputed, and the
question of law is one that the petitioning court has not previously decided." 210
Pa. Code § 63.10(B)(4). (Emphasis added).
As is more fully discussed below, this Court already decided, in Palmer v.
City of Harrisburg, 276 F.App'x 105, 2008 WL 1838632 (3d Cir. 2008), that
Pennsylvania's discovery rule did not apply to toll the statute of limitations
applicable to a defamation claim where the allegedly defamatory statements were
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published in a newspaper, and thereby immediately ascertainable, more than one
year before suit was initiated. Therefore, pursuant to 210 Pa. Code § 63.10(B)(4),
the Pennsylvania Supreme Court cannot accept a petition from this Court to answer
that same question.
III. QUESTIONS FOR CERTIFICATION

Plaintiff-Appellant's Motion asks this Court to petition the Pennsylvania
Supreme Court for certification of two questions that deviate significantly from the
concise question of law decided by the District Court. As stated by the District
Court in its August 2, 2010 Memorandum, "the issue before the [District] Court
[was] whether the Pennsylvania Supreme Court would apply the discovery rule to
toll the statute of limitations in a mass-media defamation case." (App Vol. 1, Tab
"C," p. 1, Memo. p. 1).
By contrast, Appellant's Motion for Certification asks this Court to present
the Pennsylvania Supreme Court with the following two, fact-specific questions:
"Does Pennsylvania exempt defamatory statements made on an

internet blog from the tolling principles of the "discovery rule"
under Pennsylvania's statute of limitations through a mass
media exception which would impute absolute knowledge of
the internet to a defamation victim?" And,
2. "If such a mass media exception for internet defamation exists,

would Pennsylvania law apply it in this instance of
unscrupulous misuse of the internet through an obscure blog
which caters to a small niche of special interest subscribers, but
is searchable through internet search engines?" (P1-Appint.
Motion § III).
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Because these questions posed by Appellant are imprecise mixtures of
never-before-pled fact and law, which vary significantly from the issue articulated
by the District Court, Defendant-Appellees respectfully submit that the only
question this Court should consider in its analysis of Appellant's Motion for
Certification is the precise issue identified by the District Court. Specifically,
"whether the Pennsylvania Supreme court would apply the discovery rule to toll
the statute of limitations in a mass-media defamation case?" (App Vol. 1, Tab "C,"
p. 1, Memo. p. 1).
IV. ARGUMENT IN OPPOSITION TO CERTIFICATION

A. THE QUESTIONS RAISED BY APPELLANT DO NOT
CONTROL THE OUTCOME OF THIS CASE
Appellant's request for certification to the Pennsylvania Supreme Court
should be denied because neither of the questions raised control the outcome of
this case. Pursuant to 3d Cir. L.A.R. 110.0 this Court may petition the
Pennsylvania Supreme Court to certify "questions arising under the laws of
[Pennsylvania] which will control the outcome of a case pending in federal court."
(Emphasis added).
Appellant filed this case alleging defamation, false light and intentional
interference with prospective contractual relations. (App Vol. II, Tab 2, 000037-
000042, Complaint pp. 14-19). Defendant-Appellees moved for dismissal of
Appellant's Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6),
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because all claims therein are barred by the applicable statute of limitations, and
also because the Frank Article lacks defamatory meaning. (App Vol. II, Tab 3,
000190-000203).
Appellant argued in response that Pennsylvania's discovery rule applied to
toll the statute of limitations on his defamation claims until he actually
"discovered" the offending post, two years after it was published to the internet.
(App Vol. III, Tab 4, 000364-000401).
The District Court disagreed with Appellant and dismissed his claims as
untimely without reaching the defamatory meaning question. (App Vol 1, Tab
`B"). Specifically, Judge McLaughlin held that the Pennsylvania Supreme Court
would not apply the discovery rule to toll the statute of limitations in a mass-media
defamation case, and therefore Appellant's claims were time barred. (App Vol. 1,
Tab "C," pp. 3-8, Memo. pp. 3-8).
Appellant immediately appealed Judge McLaughlin's decision, and now
asks this Court to certify two questions regarding the applicability of
Pennsylvania's discovery rule to mass-media defamation cases. (Pi-Appint. Motion
§ III). What Appellant's request neglects to consider, however, is that in order for
certification to the Pennsylvania Supreme Court to be proper, the question posed
must control the outcome of the case pending before this Court.
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Here, Defendant- Appellees' are not limited in their request for affirmance
to the statute of limitations ground. See, Nationwide Mutual Insurance Company v.
Cosenza, 258 F.3d 197, 205 (3d Cir. 2001) (agreeing with the proposition that this
Court may affirm the District Court on any basis which finds support in the
record), and Sinclair v. Soniform, 935 F.2d 599, 603-604 (3d Cir. 1991) (holding it
"true that [the Circuit Court] can affirm the disposition of the district court on any
grounds raised before that court.")
Accordingly, Defendant-Appellees' Brief, which is not yet due, will ask this
Court to affirm the District Court's dismissal of Wolk's claims on both the statute
of limitations and lack of defamatory meaning grounds, because the Frank Article
is protected opinion on a matter of public concern. Therefore, the discovery rule
question decided by the District Court, which Appellant believes should now be
certified to the Pennsylvania Supreme Court, need not control this Court's decision
of the case, and should not be certified to the Pennsylvania Supreme Court.
B. THE PENNSYLVANIA SUPREME COURT WILL NOT

ACCEPT CERTIFICATION OF APPELANT'S QUESTION
BECAUSE IT PREVIOUSLY WAS DECIDED BY THE
PETITIONING COURT
It is futile for this Court to petition the Pennsylvania Supreme Court for
certification of Appellant's question because pursuant to 210 Pa. Code §
63.10(B)(4), the Pennsylvania Supreme Court cannot accept it. Section 63.10
governs the procedure by which the Pennsylvania Supreme Court can certify
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questions arising under the laws of that state, which control the outcome of a case
pending in federal court. Section 63.1 O(B)(4) provides, "[t]his Court shall not
accept certification unless all facts material to the question of law to be determined
are undisputed, and the question of law is one that the petitioning court has not
previously decided." (Emphasis added).
As explained above, the only question this Court should even consider for
certification is whether Pennsylvania's discovery rule applies to toll the statute of
limitations in cases involving allegedly defamatory statements published in a mass-
media outlet. However, that question already was decided by this Court in Palmer
v. City of Harrisburg, 276 F.App'x 105, 2008 WL 1838632 (3d Cir. 2008) (per
curiam), which now precludes the Pennsylvania Supreme Court from certifying it
upon petition from this Court.
In Palmer, a state prisoner filed a civil rights action against the City of
Harrisburg, alleging a violation of his constitutional rights in connection with the
search and seizure of his vehicle, and also alleged common law causes of action
including defamation due to the publication of information regarding the seizure of
his vehicle in the Patriot-News. Palmer, 276 F. App'x. at 106. On appeal, this
Court affirmed the District Court's 12(b)(6) dismissal of Palmer's common law
claim of defamation, finding it barred by the applicable one-year statute of
limitations. Id. at 109.
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In affirming the District Court, the Palmer Court stated, "Palmer was not
entitled to rely on the discovery rule. The discovery rule was adopted by
Pennsylvania courts in recognition of the fact that some injuries are not
immediately apparent. The discovery rule applies in cases where the injured party
is unable to know that he is injured and to know what caused the injury, despite the
exercise of reasonable diligence." Id. at 107 (citing the Pennsylvania Supreme
Court's decision in Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 858 (2005)), See
also, Fine, 582 Pa. at 266. ("The purpose of the discovery rule has been to exclude
from the running the statute of limitations that period of time during which a party
who has not suffered an immediately ascertainable injury is reasonably unaware he
has been injured.").
The Palmer Court went on to explain that, "the standard of reasonable
diligence is an objective one and turns on the nature of the injury and whether it is
latent, and does not turn on `any specific characteristics unique to the plaintiff that
might otherwise prevent him from recognizing his injury as a cause of action." Id.
(quoting Lake v. Arnold, 232 F.3d 360, 367 (3d Cir. 2000)).
The Palmer Court then held that Palmer's "alleged injuries and the causes
thereof were immediately ascertainable [and] [t]hus, the discovery rule did not
apply in Palmer's case." Id. at 108. Although the Palmer Court did not explicitly
state that Palmer's injuries were immediately ascertainable because they were
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published in a mass media publication, a review of the entirety of the Court's
decision makes clear that it was based upon the manner in which the statements
were published. The Court went on to state that, "the fact that Palmer did not
know that he might have a valid cause of action was not relevant." Id. at 107.3
Here, just as in Palmer, the statements upon which Appellant bases his
defamation claims were published in a mass-media outlet more than one year
before Appellant initiated suit. Appellant argues, however, that he did not discover
the allegedly defamatory statements until two years after they were published, and
therefore the discovery rule should apply to toll the statute of limitations. This is
precisely the issue decided by the Palmer Court, which now precludes the
Pennsylvania Supreme Court from certifying Appellant's question.
Furthermore, Pa Code Section 63.10(B)(4) also provides that, "[t]his Court
shall not accept certification unless all facts material to the question of law to be
determined are undisputed." (Emphasis added). Although Appellant is correct
that numerous disputed issues of fact alleged by Appellant had to be taken as true
for purposes of Defendant-Appellees' Motion to dismiss, what this Court need not
accept as true are the never-before-pled facts Appellant now injects into his Motion
' Although Wolk seeks to distinguish the Internet from other forms of mass media,
(P1-Appint Motion at p. 10), the differences actually make the Internet less
appropriate for the application of the discovery rule. There are no search engines
covering the complete content of all periodicals or books on the shelves of all
bookstores.
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for Certification, which interestingly, only serve to undermine the propriety of his
request.
For example, up until this point all of Plaintiff-Appellant's factual
statements regarding Overlawyered.com have described it as a "popular and widely
read website" (App Vol. II, Tab 2, 000025, Complaint ¶ 2) that, "[s]ince its
inception ... has attracted a huge following that not only includes tens of thousands
of lawyers from every state in this Country, but also includes persons from other
professions, such as doctors, and a large overseas following." (App Vol. II, Tab 2,
000025, 000028, Complaint ¶¶ 2, 22). Plaintiff-Appellant further submitted that he
"has been a favorite target of criticism and ridicule from Overlawyered.com " (App
Vol. II, Tab 2, 000029, Complaint ¶ 25), and that "potential clients had
viewed.. .the Frank Article. ..and decided not to engage Wolk as an
attorney... solely on the basis of the Frank Article and the false statements made
therein." (App Vol. II, Tab 2, 000037, Complaint ¶ 50). In fact Plaintiff-
Appellant's false light count states, "[t]he Frank Article was dissemianted [sic] by
the Defendants and communicated to the public at large, and it was received by so
many persons that the matter must be regarded as public knowledge." (App Vol. II,
Tab 2, 000039, Complaint ¶ 63).
Notwithstanding these "facts" that must be considered true for purposes of
Defendant-Appellees' Motion to Dismiss, Plaintiff-Appellant now claims that the
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Pennsylvania Supreme Court must decide whether Pennsylvania's discovery rule
tolls the statute of limitations for defamation claims based upon statements
published "through an obscure blog which caters to a small niche of special interest
subscribers." (Pi-Appint Motion § III).
Plaintiff-Appellant never alleged these "facts" in the lower court and never
moved to amend his complaint. Accordingly, this Court must ignore these new
"facts" and any argument based upon them. (Similarly, this Court must ignore
Plaintiff-Appellant's assertion that "since this lawsuit was filed, Defendants have
manipulated search engine tools to place their defamatory blog at the beginning of
search engine rankings," (Pl-Appint Motion p. 6), an absurd contention that
appears nowhere in the record below). This provides yet another reason why
certification to the Pennsylvania Supreme Court should be denied.
C. PROPERLY POSED, THE QUESTION OF LAW AT ISSUE IS

NOT SO NOVEL AS TO PRECLUDE THIS COURT'S
ABILITY TO PREDICT THE PENNSYLVANIA SUPREME
COURT'S ANSWER THERETO.
Notwithstanding all of the above, this Court should deny Plaintiff-
Appellant's Motion for Certification because this Court is fully capable of
interpreting the substantial amount of guidance issued by the Pennsylvania
Supreme Court regarding Pennsylvania's discovery rule and confidently
predicting, as the District Court did, that it does not apply to toll the statute of
limitations in a mass-media defamation case.
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By way of example, a review of established law regarding Pennsylvania
statutes of limitation and the discovery rule, including the very cases upon which
Appellant's appeal relies, reveals the following undisputed direction from the
Pennsylvania Supreme Court.
First, it is well established in Pennsylvania that statutes of limitation serve an
important purpose and are to be strictly construed. See, Gustine Uniontown
Assocs., Ltd. v.Anthony Crane Rental, Inc., 577 Pa. 14, 33, 842 A.2d 334, 346
(2004).
Second, Pennsylvania has adopted the Uniform Single Publication Act by
statute. 42 Pa. Cons. Stat. § 8341(b) (2007)
No person shall have more than one cause of action for

damages for libel or slander or invasion of privacy, or
any other tort founded upon any single publication, or
exhibition, or utterance, such as any one edition of a
newspaper, or book, or magazine, or any one presentation
to an audience, or any one broadcast over radio or
television, or any one exhibition of a motion picture.
As the Supreme Court of Pennsylvania explained in Graham v. Today's
Spirit, the single publication rule was to prevent the statute of limitations from
being rendered "meaningless in that an action could be filed any time a defamatory
article was read, no matter what the time lag between the actual printing of the
article and the reading of the article by a third party." 503 Pa. 52, 468 A.2d 454,
457 (1983). Accepting Wolk's discovery rule argument would undermine this
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important purpose of the Single Publication Rule as articulated by the
Pennsylvania Supreme Court (as would accepting his alternate suggestion, (Pl-
Appint Motion at p. 9,10) that a posting on the Internet is republished every time it
is seen).
Third, as noted by the District Court, Pennsylvania law is clear that "the
discovery rule is a narrow exception to an otherwise strict limitations standard.
For example, Pennsylvania does not toll the statute of limitations for a plaintiff
who fails to discover a cause of action due to incarceration or insanity. 42 Pa.
Cons. Stat. Ann. § 5533(a) (2010). Likewise, ignorance, mistake or
misunderstanding will not toll the statute, even though a plaintiff may not discover
an injury until it is too late. See Pocono Int'l Raceway, Inc., v. Pocono Produce,
Inc., 468 A.2d 468, 471 (Pa. 1983)." (App Vol. 1, Tab "C," p. 5, Memo. p. 5).
Additionally, the Pennsylvania Supreme Court has also stated that the discovery
rule should be employed only for "worthy cases" and "cannot be applied so loosely
as to nullify the purpose for which a statute of limitations exists." Dalrymple v.
Brown, 701 A.2d 164, 167 (Pa. 1997).
Furthermore, as was also noted by the District Court, even the cases
Appellant relies upon for his argument in favor of application of the discovery
rule, taken in totality, stand for the proposition that not all cases are worthy of the
discovery rule. (App Vol. 1, Tab "C," p. 6). In Fine v. Checcio, the Pennsylvania
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Supreme Court clearly stated that the purpose of the discovery rule is to toll the
statute of limitations when a party suffered an injury that is not immediately
ascertainable. Fine, 582 Pa. at 266. The Fine Court further explained that, "the
salient point giving rise to [the discovery rule's] application is the inability of the
injured, despite the exercise of reasonable diligence, to know that he is injured and
by what cause." Id. at 267 (citing Pocono International Raceway, Inc., v. Pocono
Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983)). "Put another way, the
question in any given case is not, what did the plaintiff know of the injury done
him? But, what might he have known, by the use of the means of information
within his reach, with the vigilance the law requires of him? While reasonable
diligence is an objective test, it is sufficiently flexible to take into account the
differences between persons and their capacity to meet certain situations and the
circumstances confronting them at the time in question." (citing Scranton Gas &
Water Co. v. Lackawanna Iron & Coal Co., 167 Pa. 136, 31 A. 484, 485 (1895),
and Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606, 611 (2000) (internal
quotations omitted).
Following Fine, the Pennsylvania Supreme Court provided even further
guidance on the applicability of the discovery rule in Wilson v. El-Daief, 964 A.2d
354 (Pa. 2009). Interpreting Fine, the Wilson Court stated, "[i]n certain cases
involving latent injury, and/or instances in which the causal connection between an
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injury and another's conduct is not apparent, the discovery rule may operate to toll
the statute of limitations until the plaintiff discovers, or reasonably should
discover, that she has been injured and that her injury has been caused by another
party's conduct." Id. at 361-362 (citing Fine v. Checcio, 582 Pa. 253, 268, 870
A.2d 850, 859 (2005) (emphasis added)).
Recognizing that as the discovery rule evolved, some ambiguities arose, the
Wilson Court further clarified that despite the fact that some prior cases applied an
"all-vigilance" requirement to parties claiming protection under the discovery rule,
that most cases apply a reasonable-diligence requirement, as articulated in Fine,
and that reasonable diligence is the appropriate formulation. Id. at 363. Finally,
quoting Cochran v. GAF Corp.,542 Pa. 210, 216, 666 A.2d 245, 248 (1995), the
Wilson Court noted, " `We have not hesitated to find as a matter of law that a party
has not used reasonable diligence in ascertaining the cause of an injury thus barring
the party from asserting their claim under the discovery rule.' The party relying on
the discovery rule bears the burden of proof." Id. at 362.
Given all of the above instruction from the Pennsylvania Supreme Court on
the application of the discovery rule, it is hard to lend weight to Appellant's
argument that his case cannot be decided by this Court. While it may be true that
the Pennsylvania Supreme Court has not issued an opinion explicitly stating
whether or not the discovery rule applies to a mass media defamation case, the
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Fine and Wilson decisions both stand for the proposition that this Court can find,
as a matter of law, that Appellant's alleged injury was immediately ascertainable
upon publication and not entitled to protection from the discovery rule. Therefore,
it is not essential for disposition of this case that the Pennsylvania Supreme Court
decide whether the discovery rule ever applies to a mass media defamation case.
Further, even if the discovery rule's application to mass-media defamation
cases was a controlling question, this Court has the right and ability to predict the
Pennsylvania Supreme Court's answer thereto, just as the court did in Palmer v.
City of Harrisburg, 276 F.App'x. 105, 2008 WL 1838632 (3d Cir. 2008). See also,
Amvest v, Anderson Equipment Company, 358 F. App'x. 344, 347 (3d Cir. 2009)
(interpreting the Pennsylvania Supreme Court's decisions in Fine v. Checcio and.
Wilson v. El-Daief, and determining that Pennsylvania's discovery rule did not
apply to toll the statute of limitations in a buyer's action asserting claims of
negligence, breach of express warranty, and strict liability until the cause of a truck
fire was determined.).
V. CONCLUSION
Certification to the Pennsylvania Supreme Court of the questions raised by
Appellant is inappropriate and unnecessary pursuant to the rules of this Court, the
Pennsylvania Supreme Court, and established case law. Furthermore, certification
of Appellant's questions would only serve to waste the resources of both courts,
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because even if the Pennsylvania Supreme Court were to hold the discovery rule is
applicable to mass-media defamation cases, this Court would still have to decide
(a) whether it is applicable to Wolk's case, and (b) whether Wolk's claims are
separately barred by the First Amendment. Therefore, Defendant-Appellees
respectfully request that this Court deny Appellant's Motion for Certification to the
Pennsylvania Supreme Court.
Respectfully Submitted,
WHITE AND WILLIAMS LLP
Dated: October 21, 2010
By: /s/ Michael N. Onufrak
Michael N. Onufrak, Esquire
Siobhan K. Cole, Esquire
1650 Market Street
One Liberty Place, Suite 1800
Philadelphia, PA 19103-7395
CENTER FOR INDIVIDUAL RIGHTS
By: /s/ Michael E. Rosman

Michael E. Rosman, Esquire
Michelle A. Scoot, Esquire
1233 20th Street, NW, Suite 300
Washington, D.C. 20036
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CERTIFICATE OF SERVICE
I, Michael N. Onufrak, hereby certify that on October 21, 2010, I served the
foregoing Response in Opposition to Appellant's Motion for Certification to the
Pennsylvania Supreme Court on Questions of State Law, to the following persons,
who are filing users of the court's electronic filing system and are thus being
served with the Court's Notice of Docket Activity:
George Bochetto, Esquire

David P. Heim, Esquire
Bochetto & Lentz, P.C.
1524 Locust Street
Philadelphia, PA 19102
Bradley J. Stoll, Esquire

The Wolk Law Firm
1710-12 Locust Street
BY: /s/Michael N. Onufrak

Michael N. Onufrak
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EXHIBIT "A"
SPECTOR GADON & ROSEN, P.C.

By: Paul R. Rosen, Esquire
Attorney I.D. No. 13396
[email protected]
By: Andrew J. DeFalco, Esquire
Attorney I.D. No. 84360
[email protected]
Seven Penn Center Plaza
1635 Market Street, 7th Floor
(215) 241-8888
ARTHUR ALAN WOLK, ESQUIRE :

CIVIL ACTION — LAW
Plaintiff
vs. MAY TERM, 2009
WALTER K. OLSON, ESQUIRE NO.: 1489

THEODORE H. FRANK, ESQUIRE
DAVID M. NIEPORENT, ESQUIRE JURY TRIAL DEMANDED
THE OVERLAWYERED GROUP
And OVERLAWYERED.COM
Defendants
COMPLAINT — CIVIL ACTION

DEFAMATION, LIBEL AND SLANDER — 2L
Plaintiff Arthur Alan Wolk, Esquire ('Wolk" or "Plaintiff'), by and through his
attorneys, Paul R. Rosen, Esquire, Andrew J. DeFalco, Esquire and Spector Gadon &
Rosen, P.C., hereby files this Complaint, and in support thereof, avers the following:
PRELIMINARY STATEMENT
The Constitution of the Commonwealth of Pennsylvania places
reputational interests on the "highest plane," the same level as those interests pertaining
to life, liberty and property. In Pennsylvania, the right of any person to the protection of
his own reputation from unjustified invasion and wrongful hurt reflects Pennsylvania's
basic concept of the essential dignity and worth of every human being.
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Case ID: 090501489
2. In violation of these fundamental principles, the individual Defendants,
Walter K. Olson, Esquire ("Olson"), Theodore H. Frank, Esquire ("Frank"), and David
Nieporent, Esquire ("Nieporent"), who are themselves lawyers, and their entity,
"Overlawyered.com," which is funded by trade organizations representing the aircraft
industry and dedicated to permitting aircraft manufacturers to avoid liability for defective
and unsafe products, intentionally and maliciously posted a defamatory article on their
popular and widely read website, Overlawyered.com , which falsely accused the Plaintiff,
a world-renowned attorney, of selling-out his client in obtaining a settlement, for his own
personal benefit, at the expense and to the dertiment of his client. In addition to being
outrageously false, an accusation of selling out a client in such a manner, on a website
that is read daily by tens of thousands of lawyers and potential clients, is just about the
worst thing that can be said about an attorney, and was intended to, and did, have the
effect of damaging Wolk's reputation in the legal community in Philadelphia and beyond.
3. Accordingly, Wolk seeks damages from the Defendants under theories of
defamation and false-light invasion of privacy.
THE PARTIES
4. The Plaintiff, Wolk, is an individual, citizen and resident of the
Commonwealth of Pennsylvania, and an attorney licensed to practice law in the
Commonwealth of Pennsylvania. Wolk has a business address located at 1710-12 Locust
Street, Philadelphia, Pennsylvania.
5. Defendant Walter K. Olson, Esquire is an individual, citizen and resident
of the State of New York, with an address located at 875 King Street, Chappaqua, New
York 10514-3430.
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Case ID: 090501489
6. Defendant Theodore H. Frank, Esquire is an individual, citizen and
resident of the State of Virginia, with an address located at 901 North Monroe Street,
Apartment 1007, Arlington, Virginia 22201-2353.
7. Defendant David M. Nieporent, Esquire, is an individual, citizen and
resident of the State of New Jersey, with an address located at 155 Tillotson Road,
Fanwood, New Jersey 07023.
8. Defendant The Overlawyered Group is a New York business entity with
its home office and principal place of business located at 875 King Street, Chappaqua,
New York 10514-3430.
9. Defendant Overlawyered.com is a California business entity with its home
office and principal place of business located at318 State Street, Santa Barbara,
California 93101-2361.
JURISDICTION AND VENUE
10. Subject matter jurisdiction over the Defendants with respect to these
claims and causes of action is conferred upon this Court pursuant to 42 Pa.C.S. § 931
and 42 Pa.C.S.A. § 8341 et seq.
11. This Court has personal jurisdiction over the Defendants under 42 Pa.C.S.
§ 5322 (a) - (b), because the Defendants, jointly and severally, do business in this
Commonwealth, committed intentional torts against the Defendant, a Philadelphia
resident, where the brunt of the harm was felt by the Plaintiff in Philadelphia, and the
Defendants expressly aimed their tortious conduct at Pennsylvania such that
Pennsylvania is the focal point of the tortious activity.
453152-1
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12. Venue is proper in this Court pursuant to Pennsylvania Rule of Civil
Procedure 1006 (a), because Plaintiff's offices are headquartered in Philadelphia County,
and the conduct at issue resulted in damages here in Philadelphia County.
FACTS
A. The Plaintiff
13. Wolk is perhaps the most prominent aviation attorney in the United States
of America. Wolk has practiced aviation law for over 35 years. During the last decade
alone, Wolk has generated almost $1 billion in verdicts and settlements for injured
victims of aircraft-related occurrences.
14. For over 30 years, Wolk has been an aircraft pilot, and holds the Federal
Aviation Administration's highest pilot's certificate — Airline Transport Pilot (ATP) — for
multi-engine land engine and sea aircraft, and single-engine land and sea airplanes.
15. Wolk is also the past editor of Lawyer Pilots Bar Association Journal and
the past legal editor for Business and Commercial Aviation Magazine. Wolk is regularly
quoted and consulted by aviation writers, is a frequent contributor to The Aviation
Consumer, Aviation Safety, and other aviation publications, and has appeared as an on-
air aviation expert for ABC's "Nightline", the CBS Evening News, NBC, CNN, the BBC
and numerous other television and radio stations around the world.
16. Wolk is nationally known to be a zealous advocate for his clients, one who
will go to the ends of the earth to secure for them a just result in litigation. While
accusations come and go in the legal profession, Wolk has never been accused of failing
to zealously represent any client, or selling out his client to benefit himself financially.
Such an accusation, to a lawyer practicing in Wolk's area of specialty, would have an
4
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enormous negative impact, as trust between an attorney and client, and a belief that an
attorney will zealously represent the client, is particularly essential to Wolk's practice.
B. Overlawyered.com
17. In 1999, the "Overlawyered.com" website was created. The
Overlawyered.com website describes itself as "the oldest law blog."
18. Olson, a licensed attorney, founded Overlawyered.com , and is its
predominant contributor and editor. Olson has been, and remains, a Senior Fellow at the
Manhattan Institute, and is the author of several books critical of the United States
litigation system.
19. Frank is also a licensed attorney, and was formerly a practicing attorney
associated with O'Melveny and Myers, one of the largest and most prominent law firms
in the United States. Frank has regularly contributed to Overlawyered.com since 2003.
At all times material, Frank has been a resident fellow at the American Enterprise
Institute, and the director of the American Enterprise Institute Legal Center.
20. Neiporent is a practicing attorney in the State of New Jersey, and has been
a regular contributor to Overlawyered.com during the relevant time period.
21. On the website, Overlawyered.com describes itself as follows:
Overlawyered.com explores an American legal system that

too often turns litigation into a weapon against guilty and
innocent alike, erodes individual responsibility, rewards
sharp practice, enriches its participants at the public's
expense, and resists even modest efforts at reform and
accountability.
22. Since its inception, Overlawyered.com has attracted a huge following that
not only includes tens of thousands of lawyers from every state in this Country, but also
includes persons from other professions, such as doctors, and a large overseas following.
453152-1
Case ID: 090501489
At one point, Olson boasted about his readership: "My readership has a large following
among lawyers, but I've been surprised to find that a lot of doctors are reading it, as are a
lot of people from other countries."
23. In fact, in an article written by Law.com, Olson advised that
Overlawyered.com is one of the most popular "blog" websites in the country, "regularly
surpassing 9,000 unique daily visitors."
24. Olson has also boasted that Overlawyered.com is #298 on the list of most
popular blog websites, and #4 on the list of most popular legal blogs. Further, Olson
boasts that even these figures vastly understate the actual readership of
Overlawyered.com because it has many RSS readers, and "several thousand people who
receive Overlawyered through mailing lists."
25. Wolk has been a favorite target of criticism and ridicule from
Overlawyered.com . For example, after Wolk secured a a $480 million verdict against
Cessna arising from an aircraft accident, a different website, AV Web, issued an article
critical of Wolk, for which AV Web eventually issued a retraction and apologized.
Notwithstanding, and despite AV Web's admission that its article was false,
Overlawyered.com and Olson posted a gratiuitous article ridiculing Wolk and criticizing
AV Web's retraction:
by Walter Olson on September 20, 2002
September 16-17 — Free speech & web litigation:

AVweb capitulates to defamation suit. Which reminds us
of an update we should have posted earlier: readers will
recall the defamation lawsuits filed last year by aviation
plaintiff's attorney Arthur Alan Wolk against two editors
and four subscribers of the aviation-news website AVweb,
all of whom had sharply criticized him after he won a $480
million verdict against Cessna(Sept. 7 and Oct. 12-14,
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2001). On July 19 the website rendered to Wolk a

thoroughly abject capitulation and apology in connection
with his agreement to drop his suit against it. Its statement
to readers (link now dead) includes a number of passages
which deserve to be read with great care by those to whom
the Internet still represents some sort of idealized sanctuary
for untrammeled discussion [italicized comments ours]:
"One of Mr. Wolk's complaints was that we did not
supervise our chat room to prevent libelous comments
about him being published by our subscribers. We have
corrected that. Another of Mr. Wolk's complaints was that
our characterizations instigated some of our subscribers to
libel him. We will no longer characterize matters in such a
way as to bring apparent discredit upon anyone." [The
consequences of such a formula for the future of hard-
hitting journalism can be imagined. And the mind reels at
what is involved in the task of avoiding all
characterizations which, whether or not libelous
themselves, might instigate others to commit that offense. --
ed.]
"While the defense of Mr. Wolk's lawsuit has been

expensive, he nonetheless has been gracious enough to
settle with us for a payment to charity. In fact, even in
settlement negotiations, when there was a demand for
money, it was always to be contributed to charity, none for
Mr. Wolk himself. He steadfastly insisted that his lawsuit
was not about money and we have come to believe him."
[Why would it be thought surprising that the aim of such a
lawsuit might be more to silence certain critics than to
obtain cash from them? -- ed.]
As we say, read the whole thing, which lays out at

considerable length Mr. Wolk's reasons for considering
himself libeled. AVweb then goes on to publish a sort of
protracted advertisement for Mr. Wolk's services, in the
form of tributes and testimonials from grateful clients he
has represented in litigation, as well as others. Also
included is the painfully self-abasing apology of one of the
reader-posters who found himself individually sued by the
powerful lawyer — outgunned in every way, and facing
who knows what sort of prolonged personal exposure to the
cost of litigation. Among the lessons many observers will
draw, we think, will be the old one: watch whato ^ u say
about lawyers. (DURABLE LINK)
453152-1
Case ID: 090501489

26. Thus, despite AV Web's admission that the facts it printed were
inaccurate, Overlawyered.com took it upon itself to criticize AV Web's retraction and
Wolk. This only demonstrates the animosity and malice directed towards Wolk by
Olson, Frank, Nieporent and Overlawyered.com .
27. At all times material, the Defendants in this case held themselves out, and
continue to hold themselves out, as being persons with superior knowledge and access to
information respecting problems with the practice of law in this Country, and unethical
practicioners of law in this Country. Therefore, any decision by the Defendants to brand
a legal practicioner as unethical or willing to sell-out his client is treated as true, even if
made out of personal animosity, ill-will, jealousy, bias or prejudice, and taken by the
recipient to imply the existence of undisclosed facts resulting in a purportedly informed
assessment by the Defendants.
28. Moreover, while the Defendants hold themselves out as being unbiased
"scholars" of the legal profession, in fact, the Defendants are employed by, and funded
by, organizations dedicated to reducing liability to victims for personal injuries,
including, but not limited to, the aircraft industry. Therefore, without actually disclosing
this to the public, in drafting and disseminating articles critical of attorneys who represent
victims, the Defendants' columns are merely shilling for aircraft companies and other
sources of funding under the guise of scholarly writing, and attempting to turn public
opinion against victims.
C. The Taylor Case
29. Beginning in 2000, Wolk's law firm represented the victim of an aircraft
accident in a case venued in the United States District Court for the Northern District of
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Case ID: 090501489
Georgia, captioned Taylor v. Teledyne Technologies, Inc., No. 00-cv-1741 (the "Taylor
Case").
30. After discovery disputes arose, the Trial Judge in the Taylor Case issued a
September 2002 discovery order critical of Wolk's conduct during discovery, even
though Wolk was not personally involved in any of the asserted conduct.
31. In 2003, the Trial Judge vacated the September 2002 discovery order, and
precluded all parties from publicizing the September 2002 order.
32. Thereafter, the Taylor Case settled for a sum that far exceeded the value
previously placed on the Taylor Case by a federal magistrate, and all attorneys in the
Taylor Case unanimously agreed that Wolk never committed any unprofessional,
unethical or wrongful conduct in the Taylor Case. Wolk did not, in fact, commit any
unprofessional, unethical or wrongful conduct in the Taylor case, but instead represented
his client zealously with an extrordinarily high degree of professionalism and dedication
worthy of his reputation.
33. Wolk then sued certain of the Defendants in the Taylor Case for
defamation in a case brought in the United States District Court for the Eastern District of
Pennsylvania, captioned Arthur Alan Wolk v. Teledyne Industries, Inc., No. 03-5693 (the
"Wolk Case").
34. The Wolk Case settled after it was mediated by a federal judge. As part
off the settlement, all attorneys in the Taylor Case unanimously agreed that Wolk never
committed any unprofessional or wrongful conduct in the Taylor Case.
0
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D. The Defamatory Frank Article
35. As discussed above, although they do not disclose the sources of their
funding or affiliations on the website, the Defendants, and their employers such as the
American Enterprise Instutute, are funded by aircraft engine manufacturers and other
organizations, and seek to turn public opinion against victims and those who represent
victims to save money for their patrons.
36. Wolk is perhaps the most prominent and important attorney who
represents victims of aircraft accidents, and is therefore a major target of the aircraft
industry. It benefits the aircraft manufacturers to attempt to besmirch Wolk's name, to
coerce clients not to seek Wolk's representation, because Wolk has been so successful in
obtaining compensation to injured victims.
37. In conjunction with this mission, on or about April 8, 2007, Defendant
Frank, writng for "Overlawyered.com ," wrote an article relating to the Wolk Case and the
Taylor Case (the "Frank Article"). Upon information and belief, Defendants Olson and
Nieporent edited and approved of this article.
38. After a brief reference to the Wolk Case, the Frank Article accused Wolk
of "selling out" his client in the Taylor Case, accepting a lesser settlement in the T_ aylor
Case for his client in order obtain future business from other clients and to avoid being
impaired by remarks regarding unprofessional conduct in the discovery order in the
Taylor Case (which was vacated), and violating his professional and ethical
responsibilities and duties. The text of the Frank Article is as follows:
by Ted Frank on April 8, 2007
10
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Case ID: 090501489
Judge writes scathing opinion about attorney; opponent

attorney mails opinion to client; losing attorney sues other
attorney for defamation. No dice, but even this ludicrous
suit does not result in sanctions. [Beck/Herrmann]
Beck and Herrmann miss, however, an especially

interesting subplot. Wolk settled the underlying case,
Taylor v. Teledyne, No. CIV.A.1:00-CV-1741-J (N.D.
Ga.), on the condition that the order criticizing him be
vacated. Did Wolk's client suffer from a reduced settlement
so that his attorney could avoid having the order used
against him in other litigation? (The discovery violation
complained about was apparently a repeat occurrence.) The
district court permitted a settlement that vacated the order,
but its only reported inquiry into whether Wolk did not
suffer from a conflict of interest and was adequately
protecting his client's rights was Wolk's representation to
the court that the client was alright with the size of the
settlement. That begs the question whether the client was
fully aware of the conflict of interest; if, as seems to be the
case, the N.D. Ga. failed to do so, one really wishes courts
would do more to protect fiduciaries of plaintiffs' attorneys
before signing off on settlements. 338 F.Supp.2d 1323,
1327 (N.D. Ga. 2004), aff d in unpublished summary per
curiam opinion (11th Cir., Jun. 17, 2005).
We've earlier reported on Mr. Wolk for his lawsuits against

commenters at an aviation website that criticized him: Sep.
16-17, 2002. As the Taylor opinion notes, Wolk also
threatened to sue the federal judge in that case. He also
filed what the Eleventh Circuit called a frivolous
mandamus petition.
(See Frank Article, attached as Exhibit "A")
39. The Frank Article was received by the tens of thousands of readers of
Overlawyered.com, including the thousands of people who read Overlawyered.com on
the internet, and the thousands more who receive the Overlawyered.com newsletters, the
majority of whom are practicing attorneys in Pennsylvania and in the United States.
40. Considering the Frank Article in context, and in particular, the assertion
that Wolk "sold out" his client for his own personal benefit, with an eye toward the effect
11
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Case ID: 090501489
the Frank Article was fairly calculated to produce, and the impression it would naturally
engender in the minds of the average persons among whom it was intended to circulate, it
is clear that the Frank Article is defamatory.
41. In fact, the Frank Article is defamatory per se because it was intended to,
and did, blacken Wolk's reputation and explse him to public hatred, contempt and
ridicule, and injure him in his business and profession, by ascribing to Wolk conduct and
characteristics that would adversely affect his fitness for the proper conduct of his lawful
business as an attorney at law.
42. Further, the Frank Article is not merely "opinion," but it purports to be an
analysis of a case and an attorney's conduct by several persons, Frank, Olson and
Nieporent, who hold themselves out as having superior knowledge of the legal field and
of attorney misconduct, such that the Frank Article implies undisclosed, false and
defamatory facts — namely, that Frank, Olson, Nieporent and Overlwayered.com , as a
result of their investigation and analysis, had determined that Wolk acted improperly and
unethically, and "sold out" his client for his owner personal and professional gain.
43. In fact, the implication that Wolk had sold out his client for his own
personal and professional gain was false.
44. When the Frank Article was disseminated, Frank, Olson, Nieporent and
Overlawyered.com knew that it was false, knew that they had no basis to assert that Wolk
"sold out" his client for his own personal and professional gain, and knew that the
settlement that was achieved in the Taylor case was a remarkably good settlement which
exceeded the value of the case placed upon it by a mediator. Notwithstanding, due to
their personal animosity and ill-will towards Wolk, with actual malice, and with actual
12
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Case ID: 090501489
knowledge that their statements in the Frank Article were false, the Defendants
disseminated the Frank Article.
45. As a direct and proximate result of the false and malicious Frank Article,
Wolk has sustained damages that include, but are not limited to, pecunairy loss,
impairment of reputation and standing in the legal community, personal humiliation, and
mental anguish and suffering.
E. Wolk Learns Of The Defamatory Frank Article In April 2009
46. In April 2009, Wolk attended a seminar dealing with, inter alia, client
relationships. During this seminar, the speaker advised the listeners that clients were
becoming increasingly media and internet savvy, such that, prior to engaging an attorney
to represent him in a lawsuit, many clients will perform a "Google" search on the
attorney as part of due dilligence. Therfore, the speaker advised Wolk and others that it
was important to ascertain what a "Google" search would reveal, and warned that there
could be inaccurate, unfair, or false information on the internet that would be revealed
through a "Google" search. For this reason, the speaker recommended that all listeners
perform a "Google" search on themselves.
47. That night, Wolk returned to his home and, for the first time, performed a
"Google" search on himself, and saw the defamatory Frank Artcile for the first time.
Wolk was outraged and dismayed.
48. Thus, Wolk immediately sent a April 9, 2009 email to Frank. This email
stated that Wolk never sold out his clients, pointed out that Frank had miscast important
facts of the case, and then stated:
I demand that you immediately remove this and every other

article about me from your website. What you wrote is
13
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Case ID: 090501489
false, shows a complete disregard for the facts and malice,

an intent to herm me when you couldn't beat me in court
and an effort to destroy the perception of potential clients
who would read this and fail to hire me. You have accused
me of unethical conduct, fraud and the commission of a
crime, none of which is true. This is clearly the reason I
have found it extremely difficult to gain new business.
You will soon find the same.
(See April 9, 2009 email, attached as Exhibit "B")
49. The Defendants refused to retract the defamatory Frank Article, which still
remains accessible on the Overlawyered.com website.
50. In fact, Wolk has information that potential clients had, in fact, viewed the
Overlawyered.com website and the defamatory Frank Article, and viewed the accusations
that Wolk is unethical, that he cheats and sells-out his clients, and the other false
accusations, and decided not to engage Wolk as an attorney, despite his track record and
prominence, solely on the basis of the Frank Article and the false statements made
therein.
51. Thus, the false Frank Article has had an enormous negative impact on
Wolk as a legal practicioner based primarily in Philadelphia, Pennsylvania.
COUNT I
DEFAMATION
PLAINTIFF VS. DEFENDANTS
52. The Plaintiff incorporates by reference the preceding Paragraphs of this
Complaint.
53. The Defendants published the Frank Article, and the Frank Aricle was
disseminated to the thousands of readers who read Overlawyered.com , as well as those
who receive written copies of Overlawyered.com through the mail including attorneys
14
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Case ID: 090501489
and other persons in Pennsylvania. The Frank Article presently remains accessible on the
Overlawyered.com webiste.
54. The Frank Article defamed the Plaintiff because, inter alia, it ascribed
conduct and character to the Plaintiff that would adversely affect his fitness for the proper
conduct of his lawful profession, blackened his reputation, exposed him to public
contempt and ridicule, injured him in his business or profession, lowered him in the
estimation of the community, and deterred third persons from associating and/or dealing
with him.
55. The Frank Article expressly applied to the Plaintiff.
56. The Frank Article's defamatory meaning, and its application to the
Plaintiff, was understood by the thousands of ordinary and reasonable readers of
Overlawyered.com.
57. As a result of the Frank Article, the Plaintiff suffered special harm in the
form of severe monetary loss, economic and consequential damages discussed above, as
well as severe and irreparable impairment of his reputation and credibility in the
community generally, and personal humiliation, mental anguish and mental suffering.
58. The Frank Article was false. The false and defamatory Frank Article was
made with actual malice by Frank, Olson, Nieporent, and Overlawyered.com , because
Frank, Olson, Nieporent, and Overlawyered.com had actual knowledge of the falsity of
the Frank Article when it was made, and/or a reckless disregard for the falsity of the
Frank Article when it was made. Indeed, Frank, Olson, Nieporent, and
Overlawyered.com entertained serious doubts as to the truth of the Frank Article at the
time it was disseminated. Further, when making the false and defamatory Frank Article,
15
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Case ID: 090501489
Frank, Olson, Nieporent, and Overlawyered.com were motivated by personal animosity
and ill-will towards the Plaintiff, and published the Frank Article with the intent to harm
the Plaintiff and destroy his career.
59. The Frank Article was not subject to any recognized privilege, and/or to
the extent that any privilege existed or could exist, Frank, Olson, Nieporent, and
Overlawyered.com abused any such privilege.
60. Due to the willful, wanton, intentional and malicious nature of the
Defendants' conduct, Plaintiff also demands an award of punitive damages in an amount
to be determined at trial.
WHEREFORE, Plaintiff Arthur Alan Wolk respectfully requests that the Court
enter judgment in his favor and against the Defendants, award the Plaintiff Arthur Alan
Wolk compensatory and punitive damages in an amount in excess of the statutory
minimum for arbitration, and grant such other and further relief as this Court deems just
and appropriate.
COUNT!!
FALSE LIGHT
Complaint.
62. By disseminating the Frank Article, the Defendants gave publicity to a
matter concerning the Plaintiff that placed the Plaintiff before the public in a false light.
63. The Frank Article was dissemianted by the Defendants and communicated
to the public at large, and it was received by so many persons that the matter must be
regarded as public knowledge.
lli
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64. The Frank Article included major misrepresentations of the Plaintiff's
character, conduct and activities.
65. The Frank Article is highly offensive to the Plaintiff, as it would be to any
reasonable person.
66. The misrepresentations contained in the Frank Article, concerning the
(alleged and false) assertion that the Plaintiff sold out his client, and accepted a lesser
settlement for personal reasons to the dertiment of his client, are not of any legitimate
public concern.
67. The false Frank Article was disseminated by the Defendants with the
knowledge and/or reckless disregard for the false light in which the Plaintiff would be
portrayed.
68. Further, the false Frank Article was made by the Defendants with actual
malice, because the Defendants had actual knowledge of the falsity of the Frank Article
when it was made, and/or a reckless disregard for the falsity of the Frank Article when it
was made. Indeed, the Defendants entertained serious doubts as to the truth of the Frank
Article at the time it was disseminated. Further, when disseminating the false Frank
Article, the Defendants were motivated by ill-will and personal animus towards the
Plaintiff, and published the Frank Article with the intent to harm the Plaintiff and destroy
his reputation.
69. The Frank Article was disseminated to the public at large through the
internet and mailings, and is continuously available to the general public on the
Overlawyered.com website, and elsewhere on the worldwide web.
17
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Case ID: 090501489
70. As a result of the Frank Article, the Plaintiff suffered severe harm to his
interest in privacy, as well as significant damages in the form of monetary loss, economic
and consequential damages discussed above, severe and irreparable impairment of his
reputation and credibility in the community generally, and personal humilliation, mental
anguish and mental suffering.
and appropriate.
COUNT III
INTENTIONAL INTERFERENCE WITH
PROSPECTIVE CONTRACTUAL RELATIONS
Complaint.
72. As set forth above, Wolk is one of the world's most prominent aviation
attorneys, and one of the most successful attorneys ever in this country representing
victims of aircraft accidents. Wolk is also widely known through his appearances in the
media, as a commentator on aircraft safety and accidents.
73. Since the dissemiation of the false Frank Article, and following his
becoming aware of the false Frank Article, Wolk has become aware of several potential
victims who intended to engage Wolk as their counsel to represent them, and would have
in fact represented him but for their due dilligence on him, which included reference to
18
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Case ID: 090501489
the defamatory and false Frank Article. As to these persons, Wolk can establish a
prospective contractual relationship.
74. As agents of the aircraft industry, the Defendants in this case acted with
the purpose and intent to harm Wolk in Pennsylvania, where his home office exists, by
spreading false and defamatory statements about him, and accusing him of selling out his
client, in order to prevent Wolk from representing clients who are victims of aircraft
accidents.
75. The Defendants in this case acted without privilege or justification.
76. As a result of the Deffndants' conduct, Wolk has sustained actual legal
damage.
and appropriate.
Respectfully submitted,
Paul R. Rosen, Esquire

Andrew J. DeFalco, Esquire
SPECTOR GADON & ROSEN, P.C.
1635 Market Street, 7`h Floor
Philadelphia, Pennsylvania 19103
(215) 241-8888 (Main)
(215) 241-8844 (Fax)
Counsel for Plaintiff
Dated: August 17, 2009
19
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Case ID: 090501489
VERIFICATION
1, Andrew J. DeFalco, Esquire, hereby verify that I am counsel for Plaintiff in the within
action and, as such, I am authorized to make this Verification on his behalf.
The statements made in the foregoing Complaint are true to the best of my personal
knowledge, information and belief, based on my knowledge of this litigation.
I understand that the statements made therein are subject to the penalties of 18 Pa.C.S. §4904
relating to unsworn falsification to authorities.
Date: August 17, 2008
Andrew . DeFalco
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Case ID: 090501489

EXHIBIT A
Case ID: 090501489

Case: 10-3352 Document: 003110322744
Arthur Alan Wolk V. Teledyne Industries, Inc.
Page: 44 Date Filed: 10/21/2010
I'age I of '/
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Overlawwered
Chronicling the high cost of our legal system

by Ted Frank on April 8, 2007
Judge writes scathing opinion about attorney; opponent attorney mails opinion to client; losing attorney
sues other attorney for defamation. No dice, but even this ludicrous suit does not result in sanctions.
[Beck/Herrmann]
Beck and Herrmann miss, however, an especially interesting subplot. Wolk settled the underlying case,
Taylor v. Teledyne, No. CIV.A.1:00-CV-1741-J (N.D. Ga.), on the condition that the order criticizing
him be vacated. Did Wolk's client suffer fro _ ni.L_reduced sPttlement so that his attorney could avoid
having the order used against him in other litigation? (The discovery violation complained about was
apparently a repeat occurrence.) The district court permitted a settlement that vacated the order, but its
only reported inquiry into whether Wolk did not suffer from a conflict of interest and was adequately
protecting his client's rights was Wolk's representation to the court that the client was alright with the
size of the settlement. That begs the question whether the client was fully aware of the conflict of
interest; if, as seems to be the case, the N.D. Ga. failed to do so, one really wishes courts would do more
to protect fiduciaries of plaintiffs' attorneys before signing off on settlements. 338 F.Supp.2d 1323,
1327 (N.D. Ga. 2004), aff'd in unpublished summary per curiam opinion (11th Cir., Jun. 17, 2005).
We've earlier reported on Mr. Wolk for his lawsuits against commenters at an aviation website that
criticized him: $p. 16-17, 2002. As the Taylor opinion notes, Wolk also threatened to sue the federal
judge in that case. He also filed what the Eleventh Circuit called a frivolous mandamus petition.
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Tagged as: libel slander and defamation
http://overlawyered.com/2007/04/arthur-alan-wolk-v-teledyne-industries-inc/ Casl1i2d^O 50 1489

EXHIBIT B
Case ID: 090501489

Page 1 of 2
Arthur Alan Wolk
From: Arthur Alan Wolk

Sent: Thursday, April 09, 2009 9:29 PM
To: [email protected]
Cc: Paul Rosen; Walter DeForest; Cheryl DeLisle; Bradley J. Stoll
Subject: Your false and disparaging statements on the website Overlawyered.com
Mr. Frank:
I have just seen the false and disparaging statements made about on your web site or better said the
web said managed, supervised and promoted by those who would deny consumers all rights to sue
companies that manufacture defective products, the American Enterprise Institute, a web site run by
and for defense lawyers and manufacturers and which by your lead at least made absolutely no effort
to investigate the facts.
You don't mention the fact that for example you worked for at least two defense firms against which I
have been extremely successful thus your pique over me appears to be related more to my beating
your clients backsides than any umbrage over some undefined legal transgression. Absent from your
bio is any description of any success anywhere on any subject and with any law firm of substance so it
therefore must be easy for you to tear down someone who has a had a forty year success record
against the likes of you. Absent from your tirade is my forty years of success and my hundreds and
hundreds of cases with not a critical word by a lawyer or a judge.
But more important to me is your false commentary on the Taylor case and your outright libelous
statements that make me look like I sold out my clients in that case for a retraction of a false discovery
order. Had you investigated the facts you would have seen that it was my firm that made complete
discovery and the defense none. In fact it was because the court looked so foolish with nothing to back
up her vitriol that she vacated that order and for no other reason.
I have never sold out my clients ever and never will but I will fight to protect my name against people
like you who hide behind some phony title like "scholar" bestowed upon yourself. What did the Taylor
case settle for? Who were the heirs and what were their damages? What was the liability defense and
what were the facts against Teledyne. How many plaintiffs' death verdicts had ever been allowed out of
that judge's courtroom? What were the damages recoverable under Georgia law? What considerations
as to liability and damages did I make before recommending settlement. What potential for proofs of
contributory conduct or even sole causation by immune persons such as the pilots' employer were
there as in bad maintenance? What steps did I take to ensure that the settlement was fair and
reasonable and like other settlements or even better for similar circumstances in Georgia? Did I contact
other Georgia lawyers for their views?
The 11 th circuit affirmed the trial court's decision not to hold be in contempt, not to award counsel fees,
and not to reinstate the false discovery order. That affirmance had nothing to do with the underlying
Taylor case at all so you even got that wrong.
Kindly provide full and complete answers to these questions in writing within twenty-four hours and yes
I will sue you for defamation. I know you never contacted me to get answers to these questions so let's
learn whom you spoke to.
I will check to see if your late firms represented Teledyne in anything. I know Kirtland and Ellis
represented Pratt and Whitney unsuccessfully against me at least once and maybe more. I am
attempting to see if you were involved in that debacle.
You see Mr. Frank, if you are going to libel someone you need to understand the facts first and the law
and also understand the person you are libeling. This was a big mistake.
By copy of this e-mail I am requesting my counsel, Paul Rosen to immediately institute a lawsuit
against you and your organization. When we learn who your contributors are we will sue each and
every one of them against whom I have had cases or who motivated you to continue the defense
generated effort to damage my reputation.
Case ID: 090501489

4/13/2009
Page 2 of 2
Also by copy of this e-mail I am requesting counsel for Teledyne to set you straight because if I find
they had anything to do with these lies I'll sue them too.
I demand that you immediately remove this and every other article about me from your website. What
you wrote is false, shows a complete disregard for the facts and malice, an intent to harm me when you
couldn't beat me in court and an effort to destroy the perception of potential clients who would read this
and fail to hire me. You have accused me of unethical conduct, fraud and the commission of a crime
none of which is true. This is clearly the reason I have found it extremely difficult to gain new business.
You will soon find the same.
Arthur Alan Wolk
Case ID: 090501489

4/13/2009
EXHIBIT "B"
Case 2:09-cv-04001-MAM Document 36 Filed 08/02/10 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ARTHUR ALAN WOLK, ESQUIRE CIVIL ACTION
v.
WALTER K. OLSON, et al NO. 09-4001
McLaughlin, J. August 2, 2010
The issue before the Court is whether the Pennsylvania
Supreme Court would apply the discovery rule to toll the statute
of limitations in a mass-media defamation case. The Court holds
that it would not.
Arthur Alan Wolk, a well-known aviation attorney, has
sued Overlawyered.com for defamation, false light, and
intentional interference with prospective contractual relations
arising out of an article published on that website. The
plaintiff also names as defendants Walter K. Olson, Theodore H.
Frank, David M. Nierporent, and The Overlawyered Group.
The defendants move to dismiss the complaint on the
ground that the case was not brought within the statute of
limitations and the complaint fails to state a claim. The Court
will grant the defendant's motion to dismiss on statute of
limitations grounds.
I. The Complaint
The plaintiff is perhaps the most prominent aviation
attorney in the country. Compl. 1 13. Overlawyered.com is a
public website that attracts more than 9,000 unique daily
visitors, including tens of thousands Df lawyers and other
professionals. Compl. 11 22-24, 39.
In 2002, the court in Taylor v. Teledyne Tech., Inc.
issued a discovery order critical of the plaintiff's conduct, but
the plaintiff was not personally involved in any of the asserted
conduct. Compl. 5 30. The trial judge subsequently vacated the
order and sealed it from publication. Compl. 1 31. Thereafter,
the parties settled the case. Compl. ¶ 32.
On April 8, 2007, Mr. Frank wrote an article (the
"Frank Article") for Overlawyered.com , and Mr. Olson and Mr.
Nierporent edited it. Compl. 1 37. The article commented on the
chain of events leading to settlement in the Taylor case:
Did Wolk's client suffer from a reduced

settlement so that his attorney could avoid
having the order used against him in other
litigation? [I]f, as seems to be the case,
the N.D. Ga. failed to [disclose a potential
conflict of interest], one really wishes
courts would do more to protect fiduciaries
of plaintiffs' attorneys before signing off
on settlements.
Compl. 1 38.
In April 2009, the plaintiff discovered the Frank
Article. Compl. 1 47. He immediately contacted Mr. Frank and
demanded that all articles relating to the plaintiff be removed

2
from Overlawyered.com . Compl. 1 48. The defendants refused to
retract the Frank Article, which remained accessible on the
website at the time the plaintiff filed his complaint. Comp'.
1 49.
II. Analysis
The plaintiff commenced this suit on May 12, 2009, by
filing a praecipe for a writ of summons in the Court of Common
Pleas. After removing the case to federal court, the defendant
moved for dismissal under Rule 12(b)(6). Under this rule, a
court may dismiss an action if the complaint shows facial
noncompliance with the statute of limitations. Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir. 1994);
see also Jones v. Bock, 549 U.S. 199, 215 (2007).
Pennsylvania's one-year statute of limitations for
defamation applies to all three claims.' See 42 Pa. Cons. Stat.
Ann. § 5523(a) (2010); Menichini v. Grant, 995 F.2d 1224, 1228
n.2 (3d Cir. 1993). The statute began to run from the time of
publication. See Dominiak v. Nat'l Enquirer, 266 A.2d 626, 629-
30 (Pa. 1970). Mr. Frank published the article on April 8, 2007,
1 Because the plaintiff's claim for intentional interference

with a potential contractual relationship arises from his
defamation claim, the one-year statute of limitations applies to
the contract claim, even though it would otherwise be subject to
a two-year limitations period. Evans v. Philadelphia Newspaper,
Inc., 601 A.2d 330, 333-34 (Pa. Super. Ct. 1991) ("[T]he one year
statute of limitation for defamation cannot be circumvented by
cloaking such a cause of action in other legal raiment.").
3
with the result that the limitations window closed on April 8,
2008. The plaintiff's action, therefore, was time-barred when he
commenced it on May 12, 2009, unless some tolling principle had
tolled the statute.
The discovery rule represents a potential tolling
principle. It accounts for a plaintiff's "inability . . .
despite the exercise of reasonable diligence, to know that he is
injured and by what cause." Fine v. Checcio, 870 A.2d 850, 858
(Pa. 2005). The plaintiff claims that the discovery rule should
apply to toll the statute of limitations here, 2 but the
defendants argue that the rule does not apply to mass-media
defamation.
The plaintiff relies on two Pennsylvania Supreme Court
cases to support his position. The plaintiff reads these cases
too broadly, however. He first cites Fine v. Checcio, in which
the Pennsylvania Supreme Court stated that "the discovery rule
applies to toll the statute of limitations in any case where a
party neither knows nor reasonably should have known of his
injury and its cause at the time his right to institute suit
arises." 870 A.2d at 859. Although the plaintiff takes from
2 The plaintiff also asserts that fraudulent concealment

tolled the statute. If a defendant causes a plaintiff to relax
his vigilance or deviate from a typical standard of inquiry, the
doctrine of fraudulent concealment tolls the statute of
limitations. Fine, 870 A.2d at 860. The doctrine does not apply
here. The plaintiff alleged no facts that would demonstrate that
the defendant actively or passively misled the plaintiff or hid
from him the existence of the Frank Article.
I
this that the discovery rule should apply to "any case," the
court went on to clarify that the purpose of the rule is to
address "an injury that is not immediately ascertainable." Id.
at 860.
The plaintiff also cites Wilson v. El-Daief, in which
the Pennsylvania Supreme Court held that the discovery rule is a
tool of statutory interpretation that determines when a cause of
action accrues. 964 A.2d 354, 363 (Pa. 2009). Because the
statute of limitations begins to run "from the time the cause of
action accrued," the plaintiff infers from Wilson that the
discovery rule must be applied in all cases to determine when
accrual occurs and the statute begins to run. 42 Pa. Cons. Stat.
Ann. § 5502(a) (2010). The decision, however, described a more
limited application: "to toll the running of the statute of
limitations for latent injuries, or injuries of unknown
etiology . . . ." Wilson, 964 A.2d at 356.
Elsewhere, the Pennsylvania Supreme Court has stated
that the discovery rule should be employed only for "worthy
cases"; it "cannot be applied so loosely as to nullify the
purpose for which a statute of limitations exists. i3 Dalrymple
3 Indeed, the discovery rule is a narrow exception to an

otherwise strict limitations standard. For example, Pennsylvania
does not toll the statute of limitations for a plaintiff who
fails to discover a cause of action due to incarceration or
insanity. 42 Pa. Cons. Stat. Ann. § 5533(a) (2010). Likewise,
ignorance, mistake or misunderstanding will not toll the statute,
even though a plaintiff may not discover an injury until it is
too late. See Pocono Int'l Raceway, Inc., v. Pocono Produce,
Inc., 468 A.2d 468, 471 (Pa. 1983).
5
v. Brown, 701 A.2d 164, 167 (Pa. 1997). Taken in their totality,
Fine and Wilson agree that not all cases are worthy of the
discovery rule. Worthy cases are those pertaining to hard-to-
discern injuries.
Consequently, the discovery rule would appear to be
inapplicable in this case. If the rule is intended for hard-to-
discern injuries, it would be at odds with a cause of action
based upon a defamatory statement disseminated through a mass
medium, like a website, and received by tens of thousands of
readers.
Moreover, applying the discovery rule here would
undermine the purpose of the statute of limitations. If a
plaintiff may bring a person into court after a limitations
period has expired simply by invoking the discovery rule, and if
a court is bound from dismissing the claim no matter how public
or ancient the injury may be, then the discovery rule will have
nullified the stability and security that the statute of
limitations aims to protect. See Schumucker v. Naugle, 231 A.2d
121, 123 (Pa. 1967).
Three other judges from this Court have concluded that
the discovery rule does not apply to mass-media defamation.
Bradford v. Am. Media Operations, Inc., 882 F. Supp. 1508, 1519
(E.D. Pa. 1995) (holding that the discovery rule could not apply
to defamation in the widely distributed Star newspaper); Barrett
6
v. Catacombs Press, 64 F. Supp. 2d 440, 446 (E.D. Pa. 1999)
("[T]he discovery rule should not be applied where . . . a
defendant's alleged defamation was not done in a manner meant to
conceal the subject matter of the defamation."); Drozdowski v.
Callahan, No. 07-cv-01233-JF, 2008 WL 375110, at *1 (E.D. Pa.
Feb. 12, 2008) (declining to apply the discovery rule to
defamation published in a book); see also Smith v. IMG Worldwide
Inc., 437 F. Supp. 2d 297, 306 (E.D. Pa. 2006) (distinguishing
defamation in a private conversation).
Many other courts have also declined to apply the
discovery rule to mass-media defamation. See, e.g., Schweihs v.
Burdick, 96 F.3d 917, 920-21 (7th Cir. 1996) (adopting a "mass-
media exception" to the discovery rule, explaining that the rule
only applies to defamation "in situations where the defamatory
material is published in a manner likely to be concealed from the
plaintiff, such as credit reports or confidential memoranda");
Rinsley v. Brandt, 446 F. Supp. 850, 852-53 (D. Kan. 1977) ("We
would not apply the discovery rule where the defamation is made a
matter of public knowledge through such agencies as newspapers or
television broadcasts."); Shively v. Bozanich, 80 P.3d 676, 688-
89 (Ca. 2003) ("[A]pplication of the discovery rule to statements
contained in books and newspapers would undermine the single-
publication rule and reinstate the indefinite tolling of the
statute of limitations . . . ."); Mullin v. Washington Free
Weekly, Inc., 785 A.2d 296, 299 (D.C. 2001) ("[E]very other court
7
squarely faced with this issue [rejected] application of the
discovery rule in mass media defamation claims. We follow these
precedents and do likewise here." (citations omitted)); Flynn v.
Assoc'd Press, 519 N.E.2d 1304, 1307 (Ma. 1988) ("The discovery
rule does not apply to a public libel printed in a newspaper
widely available to the public, including the plaintiff."); Clark
v. AiResearch Mfg. Co. of Ariz. Inc., 673 P.2d 984, 986-87 (Az.
1983) ("We believe the rule of discovery should be applied in
those situations in which the defamation is published in a manner
in which it is peculiarly likely to be concealed from the
plaintiff . . . ."); Tom Olesker's Exciting World of Fashion,
Inc. v. Dun & Bradstreet, Inc., 334 N.E.2d 160, 164 (Il. 1975)
(distinguishing defamation in a credit report from defamation in
magazines, books, newspapers, and radio and television programs).
The Court is not aware of any case in which the
discovery rule has been applied to postpone the accrual of a
cause of action based upon the publication of a defamatory
statement contained in a book or newspaper or other mass medium.
I reach the same conclusion as my colleagues in the Eastern
District of Pennsylvania and other jurisdictions: as a matter of
law, the discovery rule does not apply to toll the statute of
limitations for mass-media defamation.
An appropriate Order will be issued separately.

Arthur Wolk v. Olson, 10-3352, Opposition To Motion To Certify

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Arthur Wolk v. Olson, 10-3352, Opposition To Motion To Certify

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Case: 10-3352 Document: 003110322744 Page: 1 Date Filed: 10/21/2010

IN THE UNITED STATES COURT OF APPEALS

ARTHUR ALAN WOLK, ESQUIRE

WALTER K. OLSON, THEODORE H. FRANK, ESQUIRE,

On Appeal from the United States District Court

DEFENDANT-APPELLEES' RESPONSE IN OPPOSITION TO PLAINTIFF-

WHITE AND WILLIAMS LLP CENTER FOR INDIVIDUAL RIGHTS

an article (the "Frank Article") on the weblog Overlawyered.com , containing the

Supp. 2d 1323 (N.D. Ga. 2004):

Arthur Alan Wolk v. Teledyne Industries, Inc.

Beck and Herrmann miss, however, an especially

curiam opinion (11th Cir., Jun. 17, 2005) (App 000034,

The Frank Article criticizing the Northern District of Georgia's procedure

district court opinion in Taylor:

As to the second matter, the Court expressed concern that

Taylor, 338 F. Supp. 2d at 1327.

Appellees, in their varying capacities as contributing authors, editors and managers

of the legal weblog Overlawyered.com , defamed Wolk and intentionally interfered

Complaint pp. 14-19). 1 Defendant-Appellees removed the case to the Eastern

District of Pennsylvania and thereafter moved to dismiss Wolk's claims pursuant

Pennsylvania's discovery rule applied to his mass-media defamation case. (App

according to its own Internal Operating Procedures, the Pennsylvania Supreme

L.A.R. 110.0 (2008); 210 Pa. Code § 63.10(B)(4).

In addition, even if Wolk's motion were procedurally correct, a petition to

the Pennsylvania Supreme Court would still be unnecessary and wasteful of

1995) (each holding the discovery rule inapplicable to mass-media defamation

claims). Therefore, Defendant-Appellees respectfully request that this Court deny

Plaintiff-Appellant's Motion for Certification.

II. STANDARD FOR CERTIFICATION

previously decided by the petitioning court. Pursuant to 210 Pa. Code §

Pa. Code § 63.10(B)(4). (Emphasis added).

As is more fully discussed below, this Court already decided, in Palmer v.

applicable to a defamation claim where the allegedly defamatory statements were

published in a newspaper, and thereby immediately ascertainable, more than one

that same question.

III. QUESTIONS FOR CERTIFICATION

"C," p. 1, Memo. p. 1).

By contrast, Appellant's Motion for Certification asks this Court to present

"Does Pennsylvania exempt defamatory statements made on an

2. "If such a mass media exception for internet defamation exists,

Because these questions posed by Appellant are imprecise mixtures of

by the District Court, Defendant-Appellees respectfully submit that the only

Certification is the precise issue identified by the District Court. Specifically,

IV. ARGUMENT IN OPPOSITION TO CERTIFICATION

Pennsylvania Supreme Court to certify "questions arising under the laws of

000042, Complaint pp. 14-19). Defendant-Appellees moved for dismissal of

Appellant's Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6),

Appellant argued in response that Pennsylvania's discovery rule applied to

toll the statute of limitations on his defamation claims until he actually

(App Vol. III, Tab 4, 000364-000401).

Tab "C," pp. 3-8, Memo. pp. 3-8).

Appellant immediately appealed Judge McLaughlin's decision, and now

asks this Court to certify two questions regarding the applicability of

Pennsylvania's discovery rule to mass-media defamation cases. (Pi-Appint. Motion

certification to the Pennsylvania Supreme Court to be proper, the question posed

to the statute of limitations ground. See, Nationwide Mutual Insurance Company v.

grounds raised before that court.")

is protected opinion on a matter of public concern. Therefore, the discovery rule

B. THE PENNSYLVANIA SUPREME COURT WILL NOT