FJW Investment v. Luxury Bath of Pittsburgh ( 2019 )

J-A05034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FJW INVESTMENT, INC., D/B/A BATH : IN THE SUPERIOR COURT OF
FITTER OF PITTSBURGH : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1041 WDA 2018
LUXURY BATH OF PITTSBURGH, :
INC., BARRY ERENRICH, KENNETH :
KAYSER, RICHARD GALLAGHER, :
BRYAN MYERS, MARK PINTEA, RB :
PRO, INC., D/B/A RE-BATH, JO ANN :
YOCHUM, AND CHRISTINE DUMM :
Appeal from the Order Entered June 28, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 12-009789
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 23, 2019
FJW Investment, Inc., d/b/a Bath Fitter of Pittsburgh (Bath Fitter),
appeals from the order granting summary judgment in favor of Appellees
Luxury Bath of Pittsburgh, Inc., and its employees Barry Erenrich, Kenneth
Kayser, Richard Gallager, Bryan Myers (collectively, Luxury Bath) and RB Pro,
Inc., d/b/a Re-Bath, and its employees Mark Pintea, Jo Ann Yochum, and
Christine Dumm (collectively, Re-Bath).1 For the reasons that follow, we
affirm.
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1 We refer to Luxury Bath and Re-Bath collectively as Appellees.
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Bath Fitter, Luxury Bath, and Re-Bath are each competitors in the one-
day bathroom remodeling business. These companies specialize in installing
acrylic bath and shower liners over existing bathtubs and showers at a
relatively inexpensive price.
Sometime in 2010, Christopher Horney (Horney), the owner of Re-Bath,
created an allegedly defamatory video relating to Bath Fitter’s business
practices. The video depicted Bath Fitter using shoddy materials, poor
workmanship, and engaging in other wrongful business practices in an effort
to cheat their customers. For example, the video showed Bath Fitter workers
using double-sided tape, as opposed to epoxy glue, as the adhesive behind
the acrylic bathtub and shower liners they installed over their customers’
existing bathtubs and showers. Horney uploaded the video to YouTube in
March 2011. Between late September 2011 and June 2012, a Luxury Bath
salesperson showed the video to approximately five to ten potential
customers. In February 2012, Bath Fitter allegedly learned about the
existence of the video.
On June 4, 2012, Appellant filed a complaint against Luxury Bath and
Re-Bath in which it raised claims of defamation per se (Count I), commercial
disparagement (Count II), intentional interference with contractual relations
(Count III), trademark infringement (Count IV), unfair competition (Count V),
and civil conspiracy (Count VI). On November 16, 2012, in response to Luxury
Bath’s preliminary objections, Bath Fitter filed an amended complaint. Bath
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Fitter asserted that it suffered over $1,000,000.00 in losses stemming from
the allegedly defamatory video.
Discovery began in May 2013 and continued for more than four years.
On July 17, 2017, Luxury Bath filed a motion for summary judgment as to all
counts in which it asserted that, inter alia, there was no evidence to support
Bath Fitter’s claim that the allegedly defamatory video caused Bath Fitter any
losses, and that in any event, the statute of limitations barred Bath Fitter’s
claims. On October 11, 2017, the trial court entered an order granting
summary judgment in favor of Luxury Bath and against Bath Fitter with the
exception of Count I (defamation) of the complaint.2 With respect to Count I,
the trial court denied summary judgment to permit Bath Fitter additional time
to obtain evidence of loss and general damages to support its defamation
claim.
On April 30, 2018, Re-Bath filed a motion for summary judgment in
which it argued that Bath Fitter had failed to prove damages stemming from
the publication of the allegedly defamatory video, and that the statute of
limitations barred Bath Fitter’s claims. On June 11, 2018, Luxury Bath joined
Re-Bath’s motion for summary judgment. On June 12, 2018, at the conclusion
of oral argument on the motions for summary judgment, the trial court once
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2 Count IV (trademark infringement) was dismissed by agreement of the
parties.
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again granted Bath Fitter an additional 10 days to obtain evidence of damages
that would support its defamation claim.
On June 28, 2018, the trial court granted summary judgment on the
defamation claim in favor Appellees and against Bath Fitter, thereby
dismissing Bath Fitter’s sole remaining claim. The trial court concluded that
Bath Fitter’s defamation per se claim was barred by the statute of limitations
and that Bath Fitter had failed to produce “any evidence that linked any of
[Luxury Bath’s or Re-Bath’s] alleged conduct to an alleged million dollar drop
in sales during any period of time.” Trial Court Opinion, 9/27/18, at 4-6. On
July 23, 2018, this timely appeal followed.
On appeal, Bath Fitter presents the following issues for review:
1. Are general damages sufficient for [Bath Fitter]’s
commercial defamation per se claims, and is [Bath Fitter]
entitled to submit expert reports and complete discovery to
support these damages and other causes of action?
2. Does the statute of limitations not bar [Bath Fitter]’s claims
when [Bath Fitter] filed its Complaint upon reasonable
discovery of the [Appellees’] defamatory Video, which
[Appellees] concealed, the Video was modified and newly
published and [Appellees’] Video, Pitch Books, and oral
defamatory statements were still being republished to
customers up to and/or beyond the date of filing of the
Complaint?
3. Did the [trial court] violate the Pennsylvania Rules of Civil
Procedure, the Local Rules of the Court of Common Pleas of
Allegheny County, and due process by issuing summary
judgment while discovery was proceeding, Discovery Judge
orders compelling relevant Defendant production were
pending, and relevant expert reports were not yet due?
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4. Did the [trial court] violate due process, the Local Rules of
Allegheny County Court of Common Pleas, and the
Pennsylvania Rules of Civil Procedure by (1) ruling in
violation of its own briefing schedule prior to the receipt of
a Reply Brief, and (2) permitting summary judgment
without proper timely filing of motions and briefs by
[Appellees]?
5. Was summary judgment improper on each of [Bath Fitter]’s
Counts when there were disputed issues of material fact and
ongoing discovery?
6. Did various Orders of the Discovery Judge violate the judicial
policy of free and open discovery by limiting [Bath Fitter]’s
discovery activities which were attempting to obtain further
evidence of tortious activity and damages?
Appellant’s Brief at 6-7.3
In its first issue, Bath Fitter argues that the trial court erred in granting
summary judgment in favor of Appellees on the basis that it did not submit
evidence of damages. Bath Fitter contends that general damages are
presumed in a defamation per se claim and that in any event, it did submit
sufficient proof of damages to sustain its defamation claim.
Our Supreme Court has set forth the standard of review for an order
granting summary judgment as follows:
As has been oft declared by this Court, “summary judgment is
appropriate only in those cases where the record clearly
demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.”
Atcovitz v. Gulph Mills Tennis Club, Inc., [] 812 A.2d 1218,
1221 ([Pa.] 2002); Pa.R.C.P. No. 1035.2(1). When considering a
motion for summary judgment, the trial court must take all facts
of record and reasonable inferences therefrom in a light most
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3 We have reordered Bath Fitter’s first and second issues for ease of review.
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favorable to the non-moving party. Toy v. Metropolitan Life
Ins. Co., [] 928 A.2d 186, 195 ([Pa.] 2007). In so doing, the trial
court must resolve all doubts as to the existence of a genuine
issue of material fact against the moving party, and, thus, may
only grant summary judgment “where the right to such judgment
is clear and free from all doubt.” Id. On appellate review, then,
an appellate court may reverse a grant of summary
judgment if there has been an error of law or an abuse of
discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law,
and therefore, on that question our standard of review is de
novo. This means we need not defer to the determinations
made by the lower tribunals.
Weaver v. Lancaster Newspapers, Inc., [] 926 A.2d 899, 902-
03 ([Pa.] 2007) (internal citations omitted). To the extent that
this Court must resolve a question of law, we shall review the
grant of summary judgment in the context of the entire record.
Id. at 903.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).
This Court has stated the following with respect to defamation claims:
A publication is defamatory if it is intended to harass the
reputation of another so as to lower him or her in the estimation
of the community or if it tends to deter third persons from
associating or dealing with him or her. When considering
defamatory meaning, the court must determine what effect the
statement is fairly calculated to produce and the impression it
would naturally engender in the minds of average persons among
whom it is intended to circulate. A statement which ascribes to
another conduct, character, or a condition which would adversely
affect her fitness for the proper conduct of her lawful business,
trade or profession is defamatory.
Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 237, 240 (Pa. Super.
1993).
We have further explained “that a publication in which the speaker
imputes to another conduct, characteristics, or a condition that would
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adversely affect her in her lawful business or trade is termed a ‘[defamation]
per se.’” Id. at 241. “[A] plaintiff who pleads and proves [defamation] per
se need not prove special damages in order to recover.” Id. at 242. “The
term ‘special damages’ is defined as ‘actual economic harm’ or ‘pecuniary
loss.’” Pilchesky v. Gatelli, 12 A.3d 430, 444 (Pa. Super. 2011) (citation
omitted). Importantly, however, “every defamation plaintiff must prove
‘actual harm.’ Pecuniary loss is not the only, or even the most significant
harm resulting from defamation. Injury to reputation, impairment of standing
in the community, personal humiliation and mental anguish are types of actual
harm ‘not limited to out-of-pocket loss’ compensable for defamation.” Id.
Thus, we have held that “a defendant who publishes a statement which can
be considered [defamation] per se is liable [only] for the proven, actual
harm the publication causes.” Walker, 634 A.2d at 244 (emphasis
added).
In support of its claim that general damages are presumed in a
defamation per se action, Bath Fitter cites Leitz v. Hohman, 16 Pa. Super.
276 (1901). In Leitz, this Court stated that “[g]eneral damages are such as
the law will presume to be the natural or probable consequence of the
defendant’s conduct.” Id. at 283. This case, however, is over 100 years old
and not reflective of the more recent developments in the law relating to
defamation per se claims, cited above, which clearly state that a plaintiff in a
defamation per se action must provide proof of actual harm.
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Based on our review of the certified record on appeal, we conclude that
the trial court did not err in determining that Bath Fitter failed to present any
evidence of actual harm to support a defamation per se claim. Discovery in
this case commenced in May 2013 and the trial court entered its final order
granting summary judgment on June 28, 2018. The certified record reflects
that in the more than five years Bath Fitter had to produce evidence of actual
harm, Bath Fitter presented no evidence to connect the allegedly defamatory
video to the $1,000,000.00 decrease in sales asserted by Bath Fitter.
Likewise, Bath Fitter failed to present any oral testimony from an actual or
prospective customer to state that the video negatively impacted their opinion
of Bath Fitter.
For example, Samuel Lucci, Bath Fitter’s designated corporate
representative, testified at his deposition as follows:
Q . . . The question is, sitting here right now, can you name a
customer whose business [Bath Fitter] lost because of the video?
A Are you asking me personally?
Q Let’s start with that.
A No.
Appendix of Exhibits in Support of Motion for Summary Judgment, Exhibit 7
(Deposition of Samuel Lucci, Vol. IV, at 1014).
Even on appeal, Bath Fitter does not point to any evidence that would
indicate that the video caused Bath Fitter any pecuniary loss or a loss to its
standing in the community. At the time the trial court granted summary
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judgment, Bath Fitter had failed to identify a single person who could testify
that he or she viewed the allegedly defamatory video and that the video
caused that individual to view Bath Fitter in a negative light. Bath Fitter has
not at any point in this lawsuit tied its $1,000,000.00 decrease in sales to the
video. Indeed, it is difficult to conceive of a manner in which Bath Fitter could
relate the sales decrease to the video, particularly when Bath Fitter has been
unable to identify a single instance of lost business arising out of the video.
Because Bath Fitter was unable to produce any evidence that the video
damaged its reputation, impaired its standing in the community, or caused
any kind of pecuniary loss, we conclude that the trial court properly
determined that Bath Fitter failed to provide proof of actual harm. See
Pilchesky v. Gatelli, 12 A.3d at 444; Walker, 634 A.2d at 244. Accordingly,
the trial court properly granted summary judgment in favor of Appellees.
In its second issue, Bath Fitter argues that the trial court erred in
granting summary judgment in favor of Appellees on the basis that the statute
of limitations barred Bath Fitter’s defamation per se claim. Because we
conclude that the trial court correctly determined that Bath Fitter presented
no evidence to prove actual harm arising out of the publication of the allegedly
defamatory video, we decline to address this issue further.
In its third issue, Bath Fitter argues that the trial court erred in granting
summary judgment because the trial court did so while discovery was
ongoing. Specifically, Appellant asserts that the trial court violated
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Pennsylvania Rule of Civil Procedure 1035.2(2), because there was an
outstanding order directing Appellees to identify customers that they solicited
from Bath Fitter, and because Bath Fitter had identified an expert willing to
provide a report relating the $1,000,000.00 loss in sales directly to the video.
Rule 1035.2(2) provides:
After the relevant pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for summary
judgment in whole or in part as a matter of law
* * *
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an adverse
party who will bear the burden of proof at trial has failed to
produce evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury.
Pa.R.C.P. 1035.2(2) (emphasis added). The explanatory comment for Rule
1035.2 further explains:
Special note should be taken of the requirement under Rule
1035.2(2) that the motion be made after completion of
discovery relevant to the motion, including the production of
expert reports. While Rule 1035.2(2) is prefaced with the
statement that any party may file a motion after the relevant
pleadings have closed, the adverse party must be given adequate
time to develop the case and the motion will be premature if filed
before the adverse party has completed discovery relevant to the
motion. The purpose of the rule is to eliminate cases prior to trial
where a party cannot make out a claim or a defense after relevant
discovery has been completed; the intent is not to eliminate
meritorious claims prematurely before relevant discovery has
been completed.
Pa.R.C.P. 1035.2, explanatory comment.
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We conclude that the trial court did not violate Rule 1035.2(2) when it
granted summary judgment in favor of Appellees. We find this Court’s
decision in Kerns v. Methodist Hospital, 574 A.2d 1068 (Pa. Super. 1990),
instructive. In Kerns, the appellants argued that the trial court erred in ruling
on a motion for summary judgment because “an order extending the period
for discovery had previously been entered, and two proper discovery requests
remained outstanding at the time summary judgment was granted. We find
no merit in the contention.” Id. at 1071. In determining that there was no
merit to this claim, we explained:
The applicable rules provide no timetable for discovery; rather,
the parties are permitted to engage in the various types of
discovery simultaneously, subject to the supervision of the trial
court. In supervising discovery, the trial court has broad
discretion to take such action as it deems appropriate to insure
prompt and adequate discovery.
It may be an abuse of discretion to deny a continuance to
complete further discovery when the party opposing summary
judgment has been denied an adequate opportunity to conduct
reasonable discovery.
* * *
On the other hand, appellate courts of this Commonwealth
have found no abuse of discretion in denying a continuance to
pursue further discovery pursuant to Pa.R.C.P. 1035(e) when a
reasonable period for discovery had expired, and the opposing
party failed to demonstrate the materiality of the outstanding
discovery or the opposing party failed to demonstrate that it had
proceeded in a timely manner with respect to the discovery
sought.
* * *
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Parties must be given a reasonable period of time to pursue
proper discovery, and if a summary judgment motion is filed
prematurely, the trial court must grant a continuance if the
opposing party specifies proper discovery to be sought in a timely
manner. On the other hand, if an adequate time for discovery has
already expired when a continuance is sought, the party opposing
summary judgment must establish both materiality and due
diligence with regard to the further discovery sought. Applying
these rules in the instant case, we find no abuse of discretion in
the trial court’s denial of a continuance to complete further
discovery.
Id. at 1073-74 (citations omitted). Ultimately, even though there was
discovery outstanding, this Court concluded that the appellants failed to
establish either the materiality or due diligence of the discovery they sought,
as they provided no explanation as to why they could not obtain the discovery
in the nearly three years since the filing of the complaint. Id. at 1074.
In this case, where the trial court granted summary judgment on June
28, 2018, discovery had been ongoing since May 2013, well over five years.
As explained above, the trial court properly granted summary judgment, in
part, because in the over five years of discovery, Bath Fitter had failed to
produce any evidence tying its $1,000,000.00 decline in sales to the allegedly
defamatory video or a single instance of a person stating that they thought
less of Bath Fitter after viewing the video. The trial court afforded Bath Fitter
multiple time extensions after Appellees filed their motions for summary
judgment to produce such evidence. With no evidence to support its claim
that the video caused harm to Bath Fitter’s reputation, Bath Fitter provided
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no evidence upon which an expert could rely to establish any type of pecuniary
damages.
Moreover, Bath Fitter has at no point, either before the trial court or this
Court, identified what an expert would have specifically stated in his or her
testimony. Bath Fitter has also failed to establish or even attempted to explain
why they could not have obtained any of this evidence in the five-plus years
of ongoing discovery. Accordingly, we conclude that the trial court did not err
in granting summary judgment prior to resolving the outstanding discovery
issues identified by Bath Fitter, because Bath Fitter failed to establish either
the materiality or due diligence of the discovery they sought. See id. at 1073-
74.
In its fourth, fifth, and sixth issues, Bath Fitter argues that the trial court
erred in granting summary judgment when Appellees violated the local rules
of civil procedure by not properly or timely filing motions; that the trial court
improperly granted summary judgment as to Counts II through VI of the
complaint; and that the Discovery Judge violated free and open discovery by
limiting discovery designed to obtain evidence of tortious activity and
damages. Bath Fitter has waived these issues.
“The argument portion of a brief must include pertinent discussion of
the point raised as well as citations to relevant authority.” Iron Age Corp.
v. Dvorak, 880 A.2d 657, 665 (Pa. Super. 2005); Pa.R.A.P. 2119(a)-(b). The
“[f]ailure to develop an argument results in waiver of the claim.” Plastipak
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Packaging, Inc. v. DePasquale, 937 A.2d 1106, 1112 (Pa. Super. 2007).
“This Court will not develop arguments on the behalf of an appellant or comb
the record for factual underpinnings to support an appellant’s position.”
Keller v. Mey, 67 A.3d 1, 7 (Pa. Super. 2013).
In its discussion of these three issues, Bath Fitter only cites two total
cases, one of which is a Commonwealth Court decision, which is not binding
on this Court. Bath Fitter does not discuss the contents of those cases or how
they relate to this appeal. The arguments for each of these issues are severely
underdeveloped, tersely worded, and in no way explain how the trial court
erred with respect to each of the issues. In sum, Bath Fitter provides no basis
upon which this Court could grant relief on these issues. Given these
deficiencies, we find that Bath Fitter has waived its fourth, fifth, and sixth
issues on appeal. See J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56
A.3d 402, 411 (Pa. Super. 2012) (holding that issue on appeal is waived where
appellant fails to develop argument of trial court error).
Order affirmed.
P.J.E. Gantman joins the memorandum.
Judge Shogan files a concurring statement.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2019
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