Smith, J. v. Main Line Animal Rescue

J-A16038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JESSIE L. SMITH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MAIN LINE ANIMAL RESCUE, INC., : No. 1132 MDA 2018
ET AL. :
Appeal from the Order Entered June 8, 2018
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2012-CV-4739-CV
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 18, 2019
Appellant, Jessie Smith, appeals from the order entered in the Court of
Common Pleas of Dauphin County sustaining Appellees’ preliminary objections
to Appellant’s Third Amended Complaint, which raised claims of defamation,
disparagement, false light invasion of privacy, and civil conspiracy based on
Appellees’ public statements concerning Appellant’s performance as Special
Deputy Secretary of Pennsylvania’s Bureau of Dog Law Enforcement. We
affirm.
The trial court aptly provides the procedural history of the present
matter, as follows:
Plaintiff/Appellant Jessie L. Smith [hereinafter “Appellant”]
initiated this action on June 8, 2012, by filing a Praecipe for Writ
of Summons against Defendants/Appellees Main Line Animal
Rescue, Inc., William Smith, Teresita Delgado a/k/a Terezita
Caldoro a/k/a T Hope, Jenny Stephens, Lancaster Newspapers,
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A16038-19
Inc., and York Newspaper Company (collectively “[Appellees]”).
On June 28, 2102, Appellant filed a Praecipe to Reissue Writ of
Summons. Appellees Main Line Animal Rescue, Inc., William
Smith, Jenny Stephens, Lancaster Newspapers, Inc., and York
Newspaper Company were served via sheriff in the time
proscribed [sic] by the law. Service by sheriff was attempted on
Appellee Teresita Delgado a/k/a/ Terezita Caldoro a/k/a T Hope
a/k/a Theresa Gervase (hereinafter [Appellee] Gervase), but was
returned “not found.”
On August 14, 2012, Appellant filed a Complaint against Appellees
alleging Defamation (Count I), Disparagement (Count II), False
Light (Count III), and Civil Conspiracy (Count IV). Following the
filing of the Complaint, Preliminary Objections were filed.[] In
response, Appellant filed an Amended Complaint on September
20, 2012. Preliminary Objections were again filed.[]
Following oral argument, the court overruled the preliminary
objections of Jenny Stephens,[] sustained the preliminary
objections of York Newspaper Company,[] Lancaster Newspapers,
Inc.,[] and sustained in part the preliminary objections of
Appellees Main Line Animal Rescue, Inc. and William Smith.[]
Additionally, Appellant’s claims against Lancaster Newspapers,
Inc. and York Newspaper Company were dismissed with
prejudice.[1]
Appellant filed a Second Amended Complaint on March 13, 2013.
Once again, Appellees Main Line Animal Rescue, Inc., Jenny
Stephens, and William Smith filed preliminary objections.
Following oral argument, the court sustained the preliminary
objections of Appellees Main Line Animal Rescue, Inc., Jenny
Stephens, and William Smith, and afforded Appellant sixty (60)
days to conduct pre-Complaint discovery and ninety (90) days to
file a third amended complaint.[]
On February 10, 2014, Appellant filed a Third Amended Complaint.
Once again, Appellees Main Line Animal Rescue, Inc., Jenny
Stephens, and William Smith filed preliminary objections.
Following oral argument, the court sustained the preliminary
____________________________________________
1 The late Honorable Bernard L. Coates, Jr., entered the order, without
accompanying opinion, dismissing with prejudice Appellant’s claims against
the newspapers.
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objections of Appellees Main Line Animal Rescue, Inc., Jenny
Stephens, and William Smith, and dismissed the claims against
them with prejudice.[]
On July 15, 2015, Appellant filed a Praecipe for Default Judgment
against Appellee Gervase for her failure to answer the complaint
and subsequent amended complaints. On the same day, a default
judgment was entered against Appellee Gervase by the Dauphin
County Prothonotary. Thereafter, Appellant filed a Notice of
Appeal with the Superior Court of Pennsylvania. The Superior
Court subsequently quashed the appeal as premature because
Appellant’s claims against Appellee Gervase were still pending.[]
Despite the fact that the claims against Appellees Main Line Animal
Rescue, Inc. and William Smith were dismissed with prejudice and
a default judgment had been entered against Appellee Gervase,
Appellant filed a Motion to Compel Settlement on July 20, 2016.
On March 8, 2017, the Honorable Scott A. Evans (hereinafter
“Judge Evans”) denied Appellant’s Motion stating that the time to
file a motion for settlement had long passed and noted that the
preliminary objections of Appellees Main Line Animal Rescue, Inc.,
and William Smith were previously sustained.[fn]
Fn. This case was originally assigned to the Honorable Bernard L.
Coates, Jr. who passed away on September 17, 2015. Since
litigation in this matter appeared to have stopped after the entry
of a default judgment against Appellee Delgado, it was not re-
assigned to another judge until Appellant filed her Motion to
Compel Settlement in 2016.
Appellee Main Line Animal Rescue, Inc., filed an Administrative
Application for Status Conference on July 10, 2017, asserting that
Appellant had failed to pursue the remaining claims against
Appellee Gervase in a timely fashion. Following a status
conference, Judge Evans entered an Order directing Appellant to
file a Certificate of Readiness for a non-jury trial on the issue of
damages within sixty (60) days of the Order. Appellant complied,
and a non-jury trial on the issue of damages was scheduled before
the Honorable John L. Braxton (hereinafter “Senior Judge
Braxton”).[]
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On March 27, 2018, a non-jury trial on the issue of damages was
conducted before Senior Judge Braxton. Appellant appeared with
counsel, and Appellee Gervase failed to appear. At the conclusion
of the hearing, Senior Judge Braxton afforded Appellant an
opportunity to submit post-hearing proposed findings of facts and
conclusion of law, which were filed by Appellant on April 10, 2018.
Thereafter, Appellee [Jenny] Stephens submitted a response to
Appellant’s proposed findings of fact and conclusions of law
asserting that Appellant failed to inform the court of relevant
proceedings that have previously adjudicated the primary issues
in this matter, including testimony directly related to Appellant’s
claims for economic damages.
Trial Court Opinion, 6/8/18, at 1-4.
The trial court examined the record with respect to the claims raised
against Appellee Gervase and voided the default judgment against her for two
reasons. First, the court determined the Third Amended Complaint, which
serves as the basis for the default judgment, failed to include a notice to
defend as required by Pa.R.C.P. 1037(b). Second, the court determined it
lacked personal jurisdiction over Appellee Gervase because Gervase never
received proper service of the complaint or the amended complaints against
her.
Not only did the court void default judgment against Gervase, however,
it also invoked the doctrine of collateral estoppel to dismiss Appellant’s claims
against Gervase with prejudice. Specifically, the court took judicial notice of
a defamation action filed by Jenny Stephens against Appellant and her
attorney in the Court of Common Pleas of Philadelphia County.2 The basis for
Stephens’ action was a Philadelphia Inquirer article reporting on the present
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2 See Stephens v. Smith and Barbin, Esq., No. 418 C.P. Phila. 2013
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Dauphin County action and incorporating verbatim averments from
Appellant’s complaint, a copy of which Appellant’s attorney had provided to
the Inquirer.
Stephens entered into a pre-trial settlement with Appellant, and she
subsequently won judgment on the merits against Appellant’s attorney
following a jury trial. As noted by the trial court herein:
The Philadelphia Court found, among other things,
that ‘[t]he evidence showed that [Appellant’s
attorney] acted with actual malice and was
unconcerned with the truth or falsity of his
statements.’ . . . Therefore, by entering the judgment
against [Appellant’s attorney], the Philadelphia Court
found that the material averments in the Dauphin
County Complaint, which [Appellant] verified, were
false. Additionally, the judgment entered against
[Appellant’s attorney] reflects a final adjudication that
[the attorney] was aware or should have been aware
of their falsity at the time he published the Dauphin
County Complaint via a Philadelphia Inquirer reporter.
[T]he issues presented in the Dauphin County and
Philadelphia County cases are identical in that the
Philadelphia Court, by necessity, examined the
veracity and truthfulness of the Dauphin County
Complaint. Following a multi-day jury trial, a final
judgment was entered on the merits by the
Philadelphia court. . . . As named Defendants,
[Appellant and her attorney] had a full and fair
opportunity to litigate the veracity and truthfulness of
the Dauphin County Complaint in the Philadelphia
County jury trial. Lastly, it is clear that the judgment
entered in Philadelphia County is essential to the
instant action.
Therefore, [Appellant] is collaterally estopped from
pursuing the claims raised in the instant matter, and
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should have discontinued the matter after judgment
was entered in Philadelphia County.
Trial Court Opinion, at 9-10. This timely appeal followed.
Appellant raises the following issues for our consideration:
1. Did [the trial court] commit reversible error by misapplying the
standard to sustain Appellees Main Line, William Smith, and
Lancaster’s preliminary objections where [Appellant’s]
complaint complied with the requirements of Pa.R.C.P. 1019?
2. Did [the trial court] commit reversible error when it dismissed
[Appellant’s] complaint against Appellee Gervase based on the
statute of limitations where Appellee Gervase had actual notice
of the action?
3. Did [the trial court] commit reversible error by determining
[Appellant’s] claims were barred by the doctrine of collateral
estoppel where it lacked the ability to fully consider the nature
of the allegedly related action and Ms. Smith’s involvement in
that action?
Appellant’s brief, at 3.
Our scope and standard of review of a challenge to an order sustaining
preliminary objections is well-settled:
Our standard of review of an order of the trial court overruling or
granting preliminary objections is to determine whether the trial
court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
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should be resolved in favor of overruling the preliminary
objections.
Khawaja v. RE/MAX Central, 151 A.3d 626, 630 (citation omitted). “[W]e
rely on the facts as alleged in the complaint, including its exhibits.” Id. at
627 n.1.
Appellant’s Third Amended Complaint (“TAC”) and attached exhibits
alleged the following facts: In 2006, then-Governor Ed Rendell appointed
Appellant as Special Deputy Secretary for Dog Law Enforcement within the
Pennsylvania Department of Agriculture. According to the TAC,
Defendants/Appellees targeted her in a series of defamatory and, at times,
profane internet comments accusing her of failing to enforce newly enacted
dog laws against a purportedly noncompliant kennel, Lancaster County’s
Turkey Hill Kennel, because, inter alia, she may have been receiving bribes
from, or engaged in a sexual relationship with, the kennel owner.
Specifically, the TAC alleged that Defendant/Appellee Theresa Gervase
published a blog at “turkeyhillkennel.blogspot.com” in which she routinely
criticized Appellant and encouraged her readers to forward her blog entries to
multiple private, public, and media outlets. In her blog, she made the
following statements over the course of several days:
• The authorities who have the power to enforce these laws have
decided to look the other way. Is somebody being paid off or
are they just too lazy to do their jobs? . . . . Who does [Turkey
Hill Kennel owner Zimmerman] have in his pocket?
• Why did Zimmerman receive a waiver? Money, blow jobs,
connections—which one?
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• [caption of a stock photo of a horse and buggy] Are
[Plaintiff/Appellant] Smith and Zimmerman [who is Mennonite]
getting it on in the back of this buggy? Why is he above the
law?
• [Celebrating removal of Smith from her office] “Jesse L Smith
Gets Fired; Don’t Let the Door Hit Ya on The [sic] Way Out”
TAC at ¶¶ 141, 144, 162, Exhibits 016, 030, 042, 043, 051. Appellant’s TAC
averred that Defendant/Appellee Gervase explained her tactics to her
audience in an email, as follows:
We want to embarrass Jessie L Smith into doing her job, maybe
having her name all over the internet connected with sexual favors
on a Mennonite may get her to get off her ass and do something
if she wants this to end. There is already blatant animal cruelty
taking place at Turkey Hill. There are other attacks in the works
as well.
TAC at ¶ 168.
Appellant’s TAC also alleged that Appellees Gervase, Jenny Stephens,
Main Line Animal Rescue, Inc., and Main Line Executive Director and self-
described animal advocate William Smith acted both individually and
conspiratorially in authoring and republishing defamatory posts and emails
about Appellant. Specifically, the TAC averred that Main Line Animal Rescue
promoted on its Facebook page and website the aforementioned Gervase post
asking if a sexual relationship or an illicit financial arrangement with an
allegedly scofflaw kennel owner might possibly explain why Appellant failed to
carry out the duties of her office. The TAC also alleged that Main Line, in
publicly criticizing Appellant, underreported the Bureau of Dog Law
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Enforcement (“BDLE”) record of sanctioning noncompliant kennels for their
violations.
William Smith, the TAC maintained, sent to Appellant’s superior,
Agriculture Secretary George Grieg, an email repeating Gervase’s accusations.
The TAC also averred that William Smith posted a false statement on Main
Line’s Facebook page after Appellant’s reassignment that she was “unpopular
with many in Pennsylvania’s animal welfare community and often went to
great lengths to protect breeders over the dogs in their kennels.”
As for Appellee Lancaster Newspapers, Inc., the TAC averred that the
newspaper’s online version published an article discussing the kennel
controversy and supplying a hyperlink to the Gervase blog in question. The
TAC posited that the hyperlink constituted a republication of the allegedly
defamatory and disparaging blog.
In Appellant’s first issue, she argues that the trial court erred in
sustaining preliminary objections in favor of Appellees Lancaster Newspaper,
William Smith, and Main Line Animal Rescue3 where her complaints sufficiently
averred their “individual and collective attacks through the coordinated and
widespread dissemination of false and offensive information [caused her] to
suffer[] irreparable harm to her reputation in the community and to her
career.” Appellant’s brief, at 24.
____________________________________________
3Appellant does not challenge the order sustaining the preliminary objections
of Jenny Stephens.
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In an action for defamation, the plaintiff has the burden of proving, when
the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be
applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.
42 Pa.C.S. § 8343(a).
On the matter of what constitutes a defamatory communication, this
Court recently explained:
“A communication may be considered defamatory if it tends
to harm the reputation of another so as to lower him or her in the
estimation of the community or to deter third persons from
associating or dealing with him or her.” Bell v. Mayview State
Hosp., 853 A.2d 1058, 1062 (Pa.Super. 2004) (citation omitted).
Further, in determining whether a statement is capable of
defamatory meaning, a court must view the statement in context.
See id. [4] “The nature of the audience is a critical factor in
determining whether a statement is capable of defamatory
meaning.” Dougherty v. Boyertown Times, 377 Pa.Super.
462, 547 A.2d 778, 783 (1988) (some quotation omitted).
When raised by a public figure concerning statements
bearing on a matter of public concern, claims for
defamation are subject to an onerous standard of
____________________________________________
4 See also Thomas Merton Ctr. v. Rockwell Int'l Corp., 442 A.2d 213,
216 (Pa. 1981) (“Words which standing alone may reasonably be understood
as defamatory may be so explained or qualified by their context as to make
such an interpretation unreasonable. Thus, we must consider the full context
of the article to determine the effect the article is fairly calculated to produce,
the impression it would naturally engender, in the minds of the average
persons among whom it is intended to circulate.”)
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proof, owing to considerations of free speech that
inhere to any claim that implicates the First
Amendment. See Milkovich v. Lorain Journal Co.,
497 U.S. 1, 17, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)
(emphasizing the obligation of appellate courts to
ensure that judgments entered pursuant to state tort
law do not intrude on the “field of free expression”).
Consequently, our Courts' First Amendment
jurisprudence makes clear that statements on matters
of public concern must be provable as false before
there can be liability under state defamation law....
Moreover, …a statement of opinion relating to matters
of public concern that does not contain a provably
false connotation will receive full constitutional
protection.
Krajewski v. Gusoff, 53 A.3d 793, 803 (Pa.Super. 2012)
(quotation marks and quotations omitted) (footnote added).
In determining whether a statement is capable of defamatory
meaning, the trial court must also ascertain whether the
statement constitutes an opinion. The question of “[w]hether a
particular statement constitutes a fact or an opinion is a question
of law for the trial court to determine.” Mathias v. Carpenter,
402 Pa.Super. 358, 587 A.2d 1, 3 (1991). Hence,
[i]n determining whether [a publication is] capable of
defamatory meaning, a distinct standard is applied
[when] the publication is of an opinion. Veno v.
Meredith, 357 Pa.Super. 85, 515 A.2d 571, 575
(1986), appeal denied, 532 Pa. 665, 616 A.2d 986(1992). “A statement in the form of an opinion is
actionable only if it may reasonably be understood to
imply the existence of undisclosed defamatory facts
justifying the opinion. A simple expression of opinion
based on disclosed facts is not itself sufficient for an
action of defamation.” Id. (internal citations
omitted); see also Neish v. Beaver Newspapers,
Inc., 398 Pa.Super. 588, 581 A.2d 619, 622–24
(1990), appeal denied, 527 Pa. 648, 593 A.2d 421(1991) (editorial criticizing the way appellant handled
his job and suggesting replacing him was an opinion
not based on undisclosed defamatory facts and,
therefore, was not actionable. The Court found that
while the statements in the editorial “might be viewed
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as annoying and embarrassing, they were not
tantamount to defamation.”).
Kurowski v. Burroughs, 994 A.2d 611, 618 (Pa.Super. 2010)
(emphasis in original).
This principle is in conformity with Restatement (Second) of Torts
§ 566, Expression of Opinion. See Mathias, supra (applying §
566). That section provides: “A defamatory communication may
consist of a statement in the form of an opinion, but a statement
of this nature is actionable only if it implies the allegation of
undisclosed defamatory facts as the basis for the opinion.”
Restatement (Second) of Torts § 566.
Thus, generally, only statements of fact, rather than mere
expressions of opinion, are actionable under Pennsylvania's
defamation law. Bell, supra. In order for an opinion to be
deemed capable of defamatory meaning, it must reasonably be
understood to imply the existence of undisclosed defamatory facts
justifying the opinion. Dougherty, supra....
Caselaw prescribes additional elements that arise in
relation to the character of the statement, the role of
the defendant as a media outlet, or the role of the
plaintiff as a public official or public figure. If the
statement in question bears on a matter of public
concern, or the defendant is a member of the media,
First Amendment concerns compel the plaintiff to
prove, as an additional element, that the alleged
defamatory statement is in fact false.[4] See
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.
767, 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986);
see also Milkovich v. Lorain Journal Co., 497 U.S.
1, 2, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); Ertel v.
Patriot–News Co., 544 Pa. 93, 674 A.2d 1038, 1041
(1996).
If the plaintiff is a public official or public figure, she
must prove also that the defendant, in publishing the
offending statement, acted with “actual malice,” i.e.
“with knowledge that [the statement] was false or
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with reckless disregard of whether it was false or not.”
Curran v. Philadelphia Newspapers, Inc., 376
Pa.Super. 508, 546 A.2d 639, 642 (1988).
“Actual malice” is a fault standard, predicated on the
need to protect the public discourse under the First
Amendment from the chill that might be fostered by
less vigilant limitations on defamation actions brought
by public officials.
[T]he stake of the people in public
business and the conduct of public officials
is so great that neither the defense of
truth nor the standard of ordinary care
would protect against self-censorship and
thus adequately implement First
Amendment policies. Neither lies nor
false communications serve the ends of
the First Amendment, and no one
suggests their desirability or further
proliferation. But to insure the
ascertainment and publication of the truth
about public affairs, it is essential that the
First Amendment protect some erroneous
publications as well as true ones.
Curran, 546 A.2d at 643. Thus, the actual malice
standard, by design, assures “that public debate will
not suffer for lack of ‘imaginative expression’ or
‘rhetorical hyperbole’ which has traditionally added
much to the discourse of this Nation.” Milkovich, 497
U.S. at 2, 110 S.Ct. 2695. “[T]he First Amendment
requires that we protect some falsehood in order to
protect speech that matters.”
Thus, the “actual malice” standard is a constitutionally
mandated safeguard and, as such, must be proven by
clear and convincing evidence, the highest standard
of proof for civil claims. Moreover, evidence adduced
is not adjudged by an objective standard; rather,
“actual malice” must be proven applying a subjective
standard by evidence “that the defendant in fact
entertained serious doubts as to the truth of his
publication.” See Curran, 546 A.2d at 642. This
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determination may not be left in the realm of the
factfinder:
The question whether the evidence in the
record in a defamation case is of the
convincing clarity required to strip the
utterance of First Amendment protection
is not merely a question for the trier of
fact. Judges, as expositors of the
Constitution, must independently decide
whether the evidence in the record is
sufficient to cross the constitutional
threshold that bars the entry of any
judgment that is not supported by clear
and convincing proof of “actual malice”.
Curran, 546 A.2d at 644. We have recognized
accordingly that the question of “actual malice” is not
purely one of fact, but rather may be described as one
of “ultimate fact,” a “hybrid of evidential fact on the
one hand and conclusion of law on the other.” Id.Application of these concepts is more difficult than its
recitation. See Curran, 546 A.2d at 644.
“[E]rroneous statement is inevitable in free debate,
and...must be protected if the freedoms of expression
are to have the ‘breathing space’ that they need to
survive.” Id. at 645. To minimize judicial intrusion
into this “breathing space,” our courts have tended to
measure actionable conduct by what the defendant
did, as opposed to what it refrained from doing or
might have done but omitted to do. Curran, 546 A.2d
at 648. Thus, while “actual malice” may be shown by
circumstantial evidence of events surrounding the
publication of the offending statement, that evidence
must tend to establish fabrication, or at least that the
publisher had “obvious reasons to doubt the veracity
of the informant or the veracity of his reports.”
Because “actual malice” is a fault standard, it is not
shown by the falsity of the statement in and of itself.
See Curran, 546 A.2d at 642. Similarly, evidence of
ill will or a defendant's desire to harm the plaintiff's
reputation, although probative of the defendant's
state of mind, without more, does not establish
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“actual malice.” Harte–Hanks Communications,
Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678,
105 L.Ed.2d 562 (1989) (“The phrase ‘actual malice’
is confusing in that it has nothing to do with bad
motive or ill will.”).
Lewis v. Philadelphia Newspapers, Inc., 833 A.2d 185, 191-
93 (Pa.Super. 2003) (quotations and citations omitted) (emphasis
in original) (footnote added).
Kuwait & Gulf Link Transp. Co. v. Doe, 2019 PA Super 234, at *7 (Aug. 1,
2019).
At the outset, we observe that Appellee Gervase’s blog statements are
central not only to the claims against her individually but also to the conspiracy
claim implicating William Smith and Main Line Animal Rescue, and to the
defamation claim against Lancaster Newspaper. For these reasons, we first
examine whether Theresa Gervase’s relevant statements appearing in her
blog were capable of a defamatory meaning as contemplated under the
applicable standard of review.
In her blog statements, reproduced supra, an openly frustrated Gervase
questioned why the Turkey Hill Kennel remains open despite an unfavorable
investigation report filed by the BDLE, and asked in an ostensibly speculative—
albeit profane—manner whether sex or bribery was involved. Gervase’s
guesswork did not name Appellant specifically, and her query is offered in
such a freewheeling and sensational way—without any suggestion that it relies
on fact or evidence for support—that there is no reason to believe that the
average reader to whom Gervase directs her blog would have understood the
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statement as anything other than an obviously satirical expression of her
frustration with relevant official decisionmaking.
Furthermore, the blatant outlandishness of Gervase’s subsequent post
eliminates any reasonable doubt her audience might have harbored about the
satirical posture of the comments in question. Again devoid of any
discussion—let alone a serious one—of fact or evidence offered to support the
“allegation” within, the second post consists of a stock photograph of a horse
and enclosed buggy of the style typically seen in Lancaster County, and asks
if Appellant and the Kennel owner—a Mennonite—might be “getting it on”
inside. While embarrassment and personal offense understandably could flow
from such base and ignoble commentary, this second post nevertheless is no
more than a farcical addition to an already patently satirical theme clearly
intended to draw attention to Gervase’s opinion that Appellant, as head of the
Dog Law Enforcement Bureau, should close the Turkey Hill Kennel.
As discussed above, for an opinion to constitute defamation of a public
figure regarding a matter of public concern, “it must reasonably be understood
to imply the existence of undisclosed defamatory facts justifying the opinion.”
Dougherty, supra. Here, we find that no audience would reasonably
understand Gervase’s comments to imply the existence of undisclosed
defamatory facts relating to a sexual relationship or bribery. Given the utterly
sophomoric presentation of a speculative, baseless suggestion, the aim of
such posts would have been obvious to her readers—use offensive and
ridiculous expression only as a means to gain attention to the Gervase’s
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sincerely held political opinion.5 See Commonwealth v. Knox, 190 A.3d
1146, 1154 (Pa. 2018) (acknowledging First Amendment protections attach
“equally to cultured, intellectual expressions and to crude, offensive, or tawdry
ones.”) (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (First
Amendment protections attached to adult magazine’s “parody” of
advertisement portraying plaintiff, a public figure and preacher, as stating his
“first time” was with his mother in an outhouse; actual malice not shown
where parody could not “reasonably be understood as describing actual
facts….”). Accordingly, upon examination of the Third Amended Complaint
and its attachments, we conclude it is free and clear from doubt that Appellant
would be incapable of proving by clear and convincing evidence that actual
malice attended the statements appearing in Theresa Gervase’s blog.
Turning, then, to Appellant’s defamation claim against Lancaster
Newspaper for its alleged republication of the Gervase blog, we observe that
such claim was conditional upon first finding that the Gervase posts were
capable of a defamatory meaning. As we have refuted this necessary
condition, it follows that we may affirm the order sustaining preliminary
objections to the defamation claim lodged against Lancaster Newspaper.
Next, we address Appellant’s contention that the trial court erroneously
sustained preliminary objections to her claims against William Smith and Main
Line Animal Rescue. In Appellant’s brief, she argues that her TAC averred
____________________________________________
5As the attachments to the TAC establish, Gervase admitted to this tactic in
an email she sent to a follower shortly after posting the comments in question.
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sufficient facts that William Smith authored defamatory emails and posts in
both his individual capacity and as the President/Director of Main Line Animal
Rescue.
For instance, Appellant states, the TAC identified as a source of
defamation William Smith’s “Open Letter” of June 9, 2011, which he posted
on Main Line’s Facebook page, and other remarks by Smith critical of the
Bureau of Dog Law Enforcement’s response to an inspection of Turkey Hill
Kennel revealing poor air quality and other deficits. Exhibits to Plaintiff’s TAC,
p. 8. In the article, Smith asked rhetorically, “How long are you going to allow
these poor dogs to suffer?” suggesting that the Bureau was remiss in failing
to contact a local humane officer. Id. Smith also opines that allowing the
kennel to use proscribed wire flooring in certain situations is “hardly valid.”
Id. He concludes “It’s a great tragedy that in this great state we’re allowing
people to deny hundreds of dogs breathable air.” Id.The TAC provides the following excerpt of Smith’s remarks:
Secretary Smith [Appellant] is claiming “appropriate action” has
been taken against this kennel. Appropriate action was NOT
taken. The fact that her Bureau still refuses to contact local
humane agents when her inspectors find conditions that so
obviously pose a threat to the welfare of hundreds of dogs is
appalling and reflects badly on her personally now that she is
acting director of the BDLE. Last summer, we were also assured
by Secretary Smith that dogs’ feet were no longer falling through
the wire strand flooring in commercial kennels. Well, here is proof
that PA still has a serious problem with the enforcement of the
laws designed to protect breeding dogs in these facilities. If the
section of our new laws guaranteeing unfettered access to outside
exercise runs was being enforced, the dogs trapped inside this
facility could have escaped the noxious fumes by simply going
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outside. But Secretary Smith and the Department of Agriculture
still believe the financial hardship of installing indoor/outdoor runs
(which is almost nothing) trumps the health and welfare of
hundreds of innocent animals. What stinks more? The air in this
kennel last March – or the fact that our money pays Secretary
Smith’s salary and she’s once again failing to do her job.
TAC at ¶ 204.
According to Appellant, Smith’s accusations of a mishandled
investigation relied upon “misrepresented facts and statistics regarding
[Appellant] and made other false representations regarding [Appellant’s]
competence. Appellant’s brief, at 38 (citing TAC ¶¶ 203-205). Appellant also
averred that Smith sent what she called a “defamatory” email to both
Secretary Grieg and her containing
false and defamatory statements that stated or were reasonably
understood to imply that: [Appellant] had granted improper
waivers, willfully failed to respond to complaints, failed to pass on
complaints to dog wardens, pushed a compromise which allowed
the violations at Turkey Hill, and then had a “handful of supporters
write false statements in support of the compromise, which were
falsely characterized as having caused or condoned conduct which
was illegal under both the prior and current laws.
TAC at ¶¶ 207, 208.
Appellant likewise points to a June 16, 2011, post authored by Smith
on Main Line’s Facebook page announcing her removal from office. In the
post, Smith stated “[Appellant] was unpopular with many members of
Pennsylvania’s animal welfare community and often when [sic] to great
lengths to protect the breeders over the dogs in their kennels.” TAC ¶¶ 228-
231. Again, the TAC avers that the latter clause in the quotation represented
a falsehood.
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With respect to William Smith’s comments criticizing the Bureau
generally and Appellant specifically for official decisions following the
inspection of Turkey Hill Kennel, we find them incapable of a defamatory
meaning where they represent Smith’s opinions based solely on disclosed facts
of public concern. See Kuwait, supra. Moreover, Smith’s statement that
Appellant went to great lengths to protect breeders over the dogs is fairly
understood to express only his opinion on how Appellant in her official capacity
should have balanced the potentially competing interests of kennel
microeconomics and dog health/safety at play in operating a kennel. Finally,
to the extent the TAC takes issue with the accuracy of Smith’s statistics on
the BDLE, it does not aver the kind of fabrication or reckless disregard for the
veracity of his report that the “actual malice” fault standard requires. Averring
the mere falsity of Smith’s statistics, in and of itself, was not enough. See
Curran, 546 A.2d at 642.
Because the averments pertaining to comments posted by William Smith
and Main Line Animal Rescue, therefore, do not reflect actual malice, we affirm
the order sustaining preliminary objections in favor of William Smith and Main
Line Animal Rescue with respect to Appellant’s defamation claim.
Furthermore, as we have concluded it is clear and free from doubt that
Appellant is incapable of proving a defamation claim against any of the named
Defendants/Appellees, we may also affirm the trial court’s order sustaining all
preliminary objections to Appellant’s conspiracy to commit defamation claims.
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The next part to Appellant’s first issue contends that the trial court erred
in sustaining preliminary objections to her claim of false light invasion of
privacy. As with defamation, the elements of a claim for false light include
knowledge of, or reckless disregard for, the falsity of a publication:
One who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to
liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would
be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and
the false light in which the other would be placed.
Restatement (Second) of Torts § 652E.
Coleman v. Ogden Newspapers, Inc., 142 A.3d 898, 905 (Pa.Super.
2016).
The United States Supreme Court has extended First Amendment
protections to speech uttered in violation of a plaintiff's state privacy rights.
See Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 17 L.Ed.2d 456(1967) (extending actual malice standard—requiring that “the defendant
acted with knowledge of the falsity of the statement or in reckless disregard
as to truth or falsity”—to claim of false light invasion of privacy under state
statute). Krajewski, 53 A.3d at 807–08. See also Coleman v. Ogden
Newspapers, Inc., 142 A.3d 898, 906 (Pa.Super. 2016) (recognizing actual-
malice prong to false light claim).
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We have already determined that Appellant’s TAC fails to aver actions
on the part of Appellees demonstrating actual malice. For this reason, we
conclude that it is clear and free from doubt that Appellant will be unable to
prove facts legally sufficient to establish a necessary element to her false light
claims and the conspiracy claims corresponding thereto.
Next, we address Appellant’s argument challenging the trial court’s
orders sustaining preliminary objections to her disparagement claims.
Regarding the tort of disparagement, the Pennsylvania Supreme Court has
observed:
The Restatement (Second) of Torts § 623A labels this tort as
“injurious falsehood.” Regardless of the label, the publication of
a disparaging statement concerning the business of another is
actionable where: (1) the statement is false; (2) the publisher
either intends the publication to cause pecuniary loss or
reasonably should recognize that publication will result in
pecuniary loss; (3) pecuniary loss does in fact result; and (4) the
publisher either knows that the statement is false or acts in
reckless disregard of its truth or falsity. Restatement (Second) of
Torts § 623(A) (1977).
Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 246
(Pa. 2002).
In its Pa.R.A.P. 1925(a) opinion, the trial court explains why it sustained
Appellees’ preliminary objections with respect to Appellant’s disparagement
claim:
Appellant fails to show that Appellees intended for publication of
the allegedly false statements to result in harm to interests of
Appellant having a pecuniary value. To the contrary, in her [TAC],
Appellant alleges the “motives” as follows: “(1)[Appellees]
believed the compromise was inadequate; (2) [Appellees] felt that
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increasingly aggressive action was needed to restore waning
attention of the media; (3) [Appellees] had vested financial
interests in keeping the passions of their donors inflamed; (4)
[Appellees] had become enamored of it [if] not addicted to self-
aggrandizing publicity; and (5) rather than attempting to work
with those actually tasked with enforcing the law, [Appellees]
worked actively to undermine it, in order to justify their unceasing
calls for more radical solutions, which the Legislature had not
approved in the original law.” (TAC at ¶ 38; SAC at ¶ 37). As
such, the allegations raised by Appellant do not establish any
allegedly false statements intending for the publication of the
statement to result in harm to interests of the other having a
pecuniary value.
Furthermore, assuming arguendo that defendants’[/Appellees’]
statements were intended to result in harm to Appellant, she fails
to state any pecuniary loss.[] Appellant filed her initial Complaint
in August of 2012, and she filed various subsequent complaints,
the most recent being a Third Amended Complaint filed in
February of 2014. In none of her four (4) complaints does
Appellant allege a specific amount of monetary loss that she
suffered as a result of the allegedly false publications despite
having nearly two years to determine such amount of monetary
damages. Moreover, as alluded to above, Appellant has even
indicated that she continues to reside, work, and earn a living in
Dauphin County, Pennsylvania. (TAC at ¶ 8; SAC at ¶ 8).
Trial Court Opinion, filed 11/2/18, at 13-14.
Appellant counters the court’s opinion by claiming economic damages
or pecuniary loss are presumed without proof of harm to reputation if actual
malice is shown. See Appellant’s brief at 56, 45, and 63 (citing Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767, 773-774 (1986) for the
proposition that actual malice must be shown to recover either punitive
damages or presumed compensatory damages, i.e., compensatory damages
without proof of harm to reputation). As discussed supra, however, we have
concluded that Appellant’s TAC makes it free and clear of doubt that she will
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be unable to prove facts legally sufficient to establish Appellees acted with
actual malice in making their comments. Accordingly, we find no merit to
Appellant’s challenge to the court’s orders sustaining Appellees’ preliminary
objections to Appellant’s claim of disparagement.
Finally, we address Appellant’s contentions that the court erred in
striking the default judgment entered against Theresa Gervase for defective
service and in dismissing the action against her for reasons of collateral
estoppel.
Regarding the court’s decision to strike default judgment against
Gervase, the trial court relied on either of two bases to strike default judgment
on the Third Amended Complaint.
The first basis centered on Appellant’s failure to include on the TAC a
notice to defend. Relevant authority consistently provides that such an
omission renders the complaint, itself, fatally defective. See, e.g., Pa. R.C.P.
No. 1018.1(a) (“Every complaint filed by a plaintiff ... shall begin with a notice
to defend....”); 11 Standard Pennsylvania Practice 2d § 68:6 (2010 ed.) (“A
complaint that omits the notice to defend is facially and fatally defective.”)
(citing Gerber v. Emes, 511 A.2d 193 (Pa.Super. 1986); Clymire v.
McKivitz, 504 A.2d 937 (Pa.Super. 1986)); Mother's Rest., Inc. v.
Krystkiewicz, 861 A.2d 327 (Pa.Super.2004) (holding default judgment
entered by prothonotary void ab initio where plaintiff’s amended complaint did
not contain a notice to defend).
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In Mother’s, this Court examined the very issue presently before this
panel, and reasoned as follows:
Rule 1511(a)[6] of the Pennsylvania Rules of Civil Procedure
authorizes the prothonotary to enter a judgment of default upon
the praecipe of the plaintiff where the defendant fails “to plead
within a required time to a complaint which contains a notice
to defend.” (Emphasis added). Despite this clear rule, our review
of the record reveals that the prothonotary entered a default
judgment even though Restaurant's amended complaint did not
contain a notice to defend. The Restaurant's failure to include the
notice to defend constitutes a facial defect of record and renders
the default judgment void due to the prothonotary's lack of
authority to enter it. See Clymire [ ] (finding the entry of a
default judgment facially defective where the defendant failed to
respond to a complaint which did not contain a notice to defend);
Gerber [at] 198; Franklin Interiors, Inc. v. Browns Lane,
Inc., 227 Pa.Super. 252, 323 A.2d 226, 228 (1974) (holding that
“a default judgment entered where there has not been strict
compliance with the rules of civil procedure is void”);
Lewandowski v. Crawford, 208 Pa.Super. 365, 222 A.2d 601,
601 (1966) (en banc) (holding that the failure to endorse a
pleading with the proper notice relieves the opposite party of the
obligation to file a responsive pleading and precludes the entry of
default judgment); Phillips v. Evans, 164 Pa.Super. 410, 65 A.2d
423, 424 (1949) (stating the “prothonotary acts in a ministerial
and not a judicial capacity, and a judgment entered by [the
prothonotary] upon default or admission, except as provided by
[the Rules of Civil Procedure] is a nullity without legal effect”).
...
Foremost, Rule 1018.1 of the Pennsylvania Rules of Civil
Procedure unequivocally states that, “every complaint filed by a
____________________________________________
6 Rule 1511(a) was rescinded on December 16, 2003, effective July 1, 2004,
and has essentially been replaced by a functionally equivalent Rule 1037(b),
which provides in relevant part, “the prothonotary, on praecipe of the plaintiff,
shall enter judgment against the defendant for failure to file within the
required time a pleading to a complaint which contains a notice to defend. . .
.”
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plaintiff ... shall begin with a notice to defend.” Pa.R.C.P. 1018.1;
see Explanatory Note, Pa.R.C.P. 1501 (finding the procedure
enunciated in Rule 1018.1 applicable to equity actions).
Additionally, Rule 1026 provides that
every pleading subsequent to the complaint shall be
filed within twenty days after service of the preceding
pleading, but no pleading need be filed unless the
preceding pleading contains a notice to defend or is
endorsed with a notice to plead.
Pa.R.C.P. 1026; see Explanatory Note, Pa.R.C.P. 1501 (finding
the provisions of Rule 1026 applicable in equity actions).
In view of the plain language of Rule 1018.1, we find that every
complaint, including amended complaints, must include Notice to
Defend. Furthermore, as stated in Rule 1026, Krystkiewicz had
no obligation to file a responsive pleading since the preceding
pleading (the Restaurant's amended complaint) did not contain a
notice to defend. As Krystkiewicz had no duty to respond to the
complaint under Rule 1026, the prothonotary had no authority to
enter the default judgment pursuant to Rule 1511. Accordingly,
we reverse the order of the trial court denying Krystkiewicz's
“Petition For Relief From Judgment By Default” and remand for
further proceedings.
Mother's, 861 A.2d at 337–38.
Such authority compels the same remedy in the present matter.
Accordingly, because this basis, alone, supported striking default judgment
entered against Gervase, we discern no error with the trial court order in this
regard.7
As for the court’s determination that the Jenny Stephens defamation
judgment in Philadelphia County collaterally estopped Appellant’s claims
____________________________________________
7 We note, additionally, that Appellant failed to provide argument challenging
the court’s decision to strike default judgment for the complaint’s lack of a
“notice to defend.”
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against Theresa Gervase so as to require dismissal of the action against her,
we find this issue mooted by our own determination that dismissal is required
because the TAC failed to support a conclusion that Appellant could prove
actual malice on Gervase’s part by clear and convincing evidence.
For the foregoing reasons, therefore, we affirm the order entered below.
Order affirmed.
Judge Murray joins the memorandum.
Judge Lazarus concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2019
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