J-A15002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MENITES, INC., D/B/A THEO’S BAR AND IN THE SUPERIOR COURT OF
GRILLE, THEODORE KALATHAS, AND PENNSYLVANIA
MOSCA KALATHAS
Appellants
v.
WHTM ABC27 NEWS, MEDIA GENERAL,
INC., JAMES CRUMMEL, AMANDA ST.
HILAIRE
Appellee No. 100 MDA 2017
Appeal from the Order Entered December 14, 2016
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2016-00116
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 10, 2017
Menites, Inc. d/b/a Theo’s Bar and Grille, Theodore Kalathas, and
Mosca Kalathas (collectively, “Appellants”) appeal from the December 14,
2016 order entered in the Cumberland County Court of Common Pleas
granting the motion for judgment on the pleadings of WHTM ABC27 News,
Media General, Inc., James Crummel, and Amanda St. Hilaire (collectively,
“ABC27”). We affirm.
The trial court summarized the factual and procedural history of this
matter as follows:
[On January 7, 2016, Appellants] filed this action for
defamation/libel and false light against ABC27 seeking
damages as a result of allegedly defamatory statements
about [Appellants] which were broadcast on December 18,
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2015. The news report in question discussed the results of
a health inspection done by the Commonwealth of
Pennsylvania, Department of Agriculture in a segment
called “Restaurant Report.”
The health inspection report states that there was
“Round-up weed killer stored next to food in the kitchen
area,” “brown residue inside the soda gun holders at the
bar and at the waitress station,” “dried food residue
around the inside guard on the floor mixer,” and “pink
residue on the deflector plate inside the ice machine.”
The news report said: “Well, do you like your dinner
with a side of weed killer? We didn’t think so. Neither do
restaurant inspectors from the Department of Agriculture;”
“want dinner with a side of weed killer?” “weed killer
stored near food,” “brown residue built up in the soda
nozzle at the bar,” “dried food residue caked on the floor,”
and “pink slimy residue inside the ice machine.”
Specifically, [Appellants] allege that the health
inspection report did not say: dinner was served with a
side of weed killer; that brown residue was “built up”
anywhere or on anything; that anything was found on the
floor; that the words “caked” and “slimy” were ever used.
After responding to the complaint, [ABC27] filed a
motion for Judgment on the Pleadings on May 13, 2016,
arguing that they are protected by the Fair Report Privilege
as they were reporting on an official report and they gave
a fair and accurate summary of the state health inspection
report, that the news reports are not “of and concerning”
the Kalathases because the News Report does not even
mention them, and that corporate entities cannot state an
invasion of privacy claim because false light can only be
maintained by a living individual, not corporate entities.
Opinion and Order of Court, 12/14/16, at 1-3 (footnotes omitted) (“Trial Ct.
Op.”). On December 14, 2016, the trial court granted ABC27’s motion and
dismissed Appellants’ complaint. Appellants timely filed a notice of appeal.
Appellants raise the following issues on appeal:
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I. Whether the Court committed an error of law and
abused its discretion in concluding that no triable facts
exist to support that [ABC27] forfeited their fair report
privilege?
II. Whether the Court committed an error of law and
abused its discretion in concluding the news reports were
not “of and concerning” [Theodore Kalathasas and Mosca
Kalathas], and that no triable facts exist to suggest
otherwise?
III. Whether the Court committed an error of law and
abused its discretion in concluding that a corporate entity
cannot make a false light claim?
Appellants’ Br. at 4 (footnote omitted).
We review the grant of a motion for judgment on the pleadings as
follows:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides
that “after the pleadings are closed, but within such time
as not to unreasonably delay trial, any party may move for
judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion
for judgment on the pleadings is similar to a demurrer. It
may be entered when there are no disputed issues of fact
and the moving party is entitled to judgment as a matter
of law.
Appellate review of an order granting a motion for
judgment on the pleadings is plenary. The appellate court
will apply the same standard employed by the trial court.
A trial court must confine its consideration to the pleadings
and relevant documents. The court must accept as true all
well pleaded statements of fact, admissions, and any
documents properly attached to the pleadings presented
by the party against whom the motion is filed, considering
only those facts which were specifically admitted.
We will affirm the grant of such a motion only when the
moving party’s right to succeed is certain and the case is
so free from doubt that the trial would clearly be a fruitless
exercise.
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Southwestern Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185
(Pa.Super. 2013) (quoting Coleman v. Duane Morris, LLP, 58 A.3d 833,
836 (Pa.Super. 2012)).
Appellants first contend that the trial court erred and abused its
discretion in concluding that there were no triable facts as to whether
whether ABC27 forfeited its fair report privilege. We have previously stated:
Pennsylvania courts recognize the “fair report privilege.”
DeMary v. Latrobe Printing & Publ'g Co., 762 A.2d 758
(Pa.Super.2000), appeal denied, . . . 786 A.2d 988 (2001).
Under this privilege, media defendants have qualified
immunity from defamation liability when they report on
official governmental proceedings. Id. The fair report
privilege extends to court pleadings, such as a complaint.
First Lehigh Bank v. Cowen, 700 A.2d 498, 502
(Pa.Super.1997). The DeMary Court succinctly described
the scope of the privilege, and its limitations, as follows:
In Pennsylvania, the fair report privilege
protects the press from liability for the
publication of defamatory material if the
published material reports on an official action
or proceeding. See Sciandra v. Lynett, . . .
187 A.2d 586, 588 (Pa.1963); Mosley v.
Observer Pub. Co., . . . 629 A.2d 965, 967
(Pa.Super.1993). No responsibility attaches so
long as the account of the official action or
proceeding is fair, accurate and complete, and
is not published “solely for the purpose of
causing harm to the person defamed.”
Sciandra, 187 A.2d at 589. See also
RESTATEMENT (FIRST) OF TORTS § 611.
“However, this qualified immunity is forfeited if
the publisher steps out of the scope of the
privilege or abuses the ‘occasion.’ This can be
done by exaggerated additions, or
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embellishments to the account.” Id. at 600,
187 A.2d 586. See also Mosley, 629 A.2d at
969.
Id. at 763.
The defendant abuses the fair report privilege if the
article carries a materially greater “sting” than a precisely
accurate retelling of the public proceeding itself. First
Lehigh Bank, 700 A.2d at 503. Generally, the question of
whether the privilege has been abused is a question of fact
for the jury. Id. The trial court may make that
determination as a matter of law, where the evidence is so
clear that it points to only one reasonable conclusion. Id.
Weber v. Lancaster Newspapers, Inc., 878 A.2d 63, 72 (Pa.Super. 2005)
(footnote omitted).
The trial court found that ABC27 did not abuse, and thus forfeit, its fair
report privilege because the news report did not produce a greater “gist” or
“sting” than the health inspection report prepared by the Department of
Agriculture upon which ABC27’s report was based. After reviewing the
parties’ briefs, the certified record, and the relevant law, we conclude that
ABC27 did not forfeit its fair report privilege with respect to the news report
at issue. We agree with and adopt the well-reasoned opinion of the
Honorable Albert H. Masland. See Trial Ct. Op. at 4-8.
Appellants next claim that the trial court erred and abused its
discretion in concluding that the news reports were not “of and concerning”
Theodore and Mosca Kalathas (collectively, “Kalathases”). Because, as
discussed above, the fair report privilege protects ABC27 from defamation
claims arising out of the news report in question, the Kalathases’ defamation
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claims fail even assuming the news report was “of and concerning” them.
Accordingly, we need not consider whether the news reports were “of and
concerning” the Kalathases.
Finally, we conclude that Appellants have waived their issue
concerning the false light claim by failing to include it in their Pennsylvania
Rule of Appellate Procedure 1925(b) concise statement of errors complained
of on appeal. Forest Highlands Community Ass’n v. Hammer, 879 A.2d
223, 226 n.2 (Pa.Super. 2005) (citing Commonwealth v. Lord, 719 A.2d
306 (Pa.Super. 1998)).
Accordingly, we conclude that the trial court properly granted ABC27’s
motion for judgment on the pleadings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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Circulated 09/29/2017 01:17 PM