Reilly, D. v. WNEP

J-A29026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID REILLY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
WNEP A/K/A CHANNEL 16; SUZANNE : No. 557 MDA 2020
GOLDKLANG; ANDY PALUMBO; :
WBRE-TV; ANDY MEHALSHICK; :
KELLY CHOATE; DWAYNE HEISLER; :
VINCE DEMELFI; CHRIS DEFRAIN; :
FORREST BENNETT; JILL CARSON; :
UNITED WAY OF COLUMBIA AND :
MONTOUR COUNTY; ADRIENNE :
MAEL; OREN HELBOCK; NATE :
WHEELER; KEITH LAWRENCE :
HAYMAN, III; AND BRIAN :
BERNADINI :

Appeal from the Order Entered February 21, 2020,
in the Court of Common Pleas of Columbia County,
Civil Division at No(s): 2018-CV-330.

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 17, 2021

David Reilly appeals from the order sustaining the preliminary objections

of 17 defendants and dismissing this defamation lawsuit with prejudice. The

trial court correctly deemed most of the alleged statements to be opinions that

are not defamatory, as a matter of law. However, one alleged statement of

Keith Lawrence Hayman, III is not an opinion. We therefore reverse the order

sustaining Mr. Hayman’s preliminary objection to that one defamation count.

In all other respects, we affirm.
____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Before discussing the facts of this case, we recall of our scope of review.

When reviewing an order sustaining preliminary objections, our scope is “the

averments in the complaint, together with the documents and exhibits

attached thereto, in order to evaluate the sufficiency of the facts averred.” N.

Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 35 (Pa. Super. 2015). All

well-pleaded “facts set forth in the challenged pleadings are admitted as true,

as well as all inferences reasonably deducible therefrom.” Liberty Mut. Ins.

Co. v. Domtar Paper Co., 77 A.3d 1282, 1285 (Pa. Super.

2013), affirmed, 113 A.3d 1230 (Pa. 2015).

According to the operable complaint, in the summer of 2017, Mr. Reilly

lived in Bloomsburg, Pennsylvania and worked at WHLM, “a small, family-

owned radio station.” Mr. Reilly’s First Amended Complaint at 5. In his

personal capacity, he went to Charlottesville, Virginia on August 11-12, 2017

to film an “Alt-Right” Rally. Id. at 4. He did not participate in or comment on

the Rally, but he posted his video of it on Twitter. David Duke retweeted the

video without Mr. Reilly’s consent.

Thereafter, Dwayne Heisler; Vince DeMelfi; Chris DeFrain; Forrest

Bennett; Jill Carlson; the United Way of Columbia and Montour County;

Adrienne Mael; Oren Helbock; Nate Wheeler; Keith Lawrence Hayman, III;

and Brian Bernadini started a boycott campaign against WHLM. Mr. Heisler

spearheaded the boycott effort and celebrated its success. See id. at 9. He

“referred to WHLM as employing a racist (i.e., [Mr. Reilly]).” Id. at 10.

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Mr. DeMelfi called Mr. Reilly “a bigot, racist, [and] Neo-Nazi . . . .” Id.

He claimed that Mr. Reilly was “involved in the hate march — i.e., the Rally.”

Id. Mr. DeMelfi wished to “silence” Mr. Reilly. Id.

Mr. DeFrain said that Mr. Reilly “went to the white-supremacist [Rally]

as a participant, not an observer.” Id. He further declared that Mr. Reilly

promoted the Rally on WHLM.

Mr. Bernardini said that there was “a mountain of evidence proving that

[Mr.] Reilly is a white nationalist . . . .” Id.

Mr. Bennett and Ms. Carlson both claimed Mr. Reilly “was a racist and/or

bigot and/or prejudiced.” Id. at 12.

Ms. Mael, an employee of the United Way of Columbia and Montour

County, told her organization’s members that Mr. Reilly’s “physical presence

in Charlottesville, Virginia demonstrated bigotry and hatred.” Id. She posted

these statements on the Internet, thereby publishing them to the whole world.

Mr. Helbock claimed Mr. Reilly “embraced Neo-Nazi ideas.” Id. at 13.

Mr. Wheeler said Mr. Reilly is a “racist fuck, and a douche.” Id. He

made these statements to “several print and television outlets.” Id.

Mr. Hayman called Mr. Reilly “a white supremacist.” Id. at 15.

WNEP — Channel 16, a television station in Moosic, Pennsylvania, sent

a reporter, Suzanne Goldklang, to cover a protest at WHLM. She “broadcast

that [Mr. Reilly] condones prejudice.” Id. at 6. Andy Palumbo, who also

worked for Channel 16, “publicly claimed [Mr. Reilly] posted video of himself

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at the Rally.” Id. at 7. He also claimed Mr. Reilly was in and at a white-

supremacist rally. Id.

WBRE-TV, a station in Wilkes-Barre, employed Andy Mehalshick and

Kelly Choate. Mr. Mehalshick claimed Mr. Reilly made racist comments related

to the Rally and on the radio, posted racist materials on social-media, and

supported Neo-Nazis online. Ms. Choate reported Mr. Reilly “attended” the

Rally, rather than merely videoed it. Id. at 8.

Mr. Reilly eventually resigned from WHLM to save it from bankruptcy

and moved to Kansas and then to Indiana to seek new employment. While

he has found work in South Bend, Mr. Reilly cannot obtain work in the radio

industry, because of the defendants’ alleged statements. He therefore filed

this suit and raised four counts against all 17 defendants. Those four counts

were for defamation; defamation per se1; defamation by implication; and

invasion of privacy, false light.

All 17 defendants filed preliminary objections in the nature of a demurrer

to Mr. Reilly’s Complaint. While those preliminary objections were pending,

Mr. Reilly served discovery requests and interrogatories on all defendants.

Some defendants responded, and others refused. Thus, in July of 2018, Mr.

Reilly filed two motions to compel discovery. The trial court denied his motions

and granted a protective order to the defendants.

____________________________________________

1 Mr. Reilly’s counsel mistakenly headed the second court as “Negligence Per
Se,” but it clear from the substance of the count that defamation per se is the
tort he intended to allege. See First Amendment Complaint at 17-18.

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Next, in August of 2019, the trial court sustained the preliminary

objections of all 17 defendants, but it refused to dismiss the matter with

prejudice. Mr. Reilly filed a First Amended Complaint, and all the defendants

renewed their preliminary objections.

In the trial court’s view, the amended complaint did not cure the legal

insufficiencies of Mr. Reilly’s original Complaint, and he could not fix those

deficiencies with a second amended complaint. The court concluded the

alleged-defamatory statements amounted to nothing more than the 17

defendants’ expressions of opinion that Mr. Reilly was a racist, bigot, white-

supremacist, and Neo-Nazi.

The court said, “Simple expression of opinion, based on disclosed facts

is not itself sufficient for an action of defamation.” Trial Court Opinion,

2/21/20, at 5, 6 (citing Kurowski v. Burroughs, 994 A.2d 611, 618 (Pa.

Super. 2010)). It further opined that those opinions arose from disclosed

facts – i.e., Mr. Reilly’s presence at the Alt-Right Rally, filming a video of the

Rally, and posting that video on his Twitter page. Thus, the trial court deemed

the defendants’ opinions to be non-defamatory and dismissed Mr. Reilly’s First

Amended Complaint with prejudice. This timely appeal followed.

Mr. Reilly raises six issues on appeal. They are as follows:

1. Did the trial court err by [not] permitting [Mr. Reilly]
the opportunity to determine the basis of defendants’
statements through discovery?

2. Did the trial court err by determining that [the]
defendants’ statements do not imply an assertion of
objective fact during the pleadings stage?

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3. Did the trial court err by permitting the defendants to
rely upon documents and/or records which were not
attached to the complaint?

4. Did the trial court err by applying a standard
equivalent to a motion for summary judgment . . .
while ruling on preliminary objections?

5. Did the trial court err by holding [Mr. Reilly] to the
standard of a public figure?

6. Did the trial court err by permitting the defendants to
conduct discovery while staying [Mr. Reilly’s]
discovery?

Mr. Reilly’s Brief at 5. We address issues one through three in turn, then

issues four and five simultaneously, and finally issue six.

A. The Discovery Ruling

First, Mr. Reilly contends the trial court erred by not compelling certain

defendants to answer his discovery requests. Those requests inquired into

the “basis and nature of all statements by the defendants” about him. Id. at

13. Mr. Reilly argues, “Only after ascertaining the basis of the statements

could the trial court have analyzed whether the statements were pure opinion,

missed opinion, or fact.” Id. In short, he believes the trial court made an

error in judgment and therefore frames this issue as if our standard of review

were de novo. It is not.

When “reviewing the propriety of a discovery order, our standard of

review is whether the trial court committed an abuse of discretion.” Gallo v.

Conemaugh Health Sys., Inc., 114 A.3d 855, 860 (Pa. Super. 2015). “An

abuse of discretion is not merely an error of judgment.” Ambrogi v. Reber,

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932 A.2d 969, 974 (Pa. Super. 2007). “Rather, an abuse of discretion exists

if the trial court renders a judgment that is manifestly unreasonable, arbitrary,

or capricious; if it fails to apply the law; or was motivated by partiality,

prejudice, bias, or ill will.” Id.

Although Mr. Reilly acknowledged this deferential standard of review, he

did not consider it when making his argument. See Mr. Reilly’s Brief at 4, 11-

13. Accordingly, he fails to contend – much less persuade us – that an abuse

of discretion occurred. This appellate issue affords him no relief.

B. The Defendants’ Statements

For his second issue, Mr. Reilly argues the trial court failed “to appreciate

that the statements made by the defendants, which the [trial] court

characterized as ‘opinion,’ imply facts by their nature.” Id. at 14. Mr. Reilly

then performs a “cursory reading of the Amended Complaint” and lists a string

of alleged statements he believes “imply undisclosed, false, and defamatory

facts.” Id.

Those alleged statements are as follows:

64. Mehalshick alleged [Mr. Reilly] made racist comments
related to the Rally.

65. Mehalshick reported [Mr. Reilly] made racial
comments on the radio, and made racist social media
posts.

67. Mehalshick claimed [Mr. Reilly] posted online support
for Neo-Nazis.

73. Further, Choate reported [Mr. Reilly] supported the
Alt-Right on his Twitter Page.

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74. Choate reported [Mr. Reilly] made racial social media
posts.

83. As part of his campaign to target [Mr. Reilly], WHLM
and WHLM’s advertisers, Heisler claimed that WHLM
promoted the Rally.

91. DeMelfi publicly referred to [Mr. Reilly] as a bigot,
racist, Neo-Nazi and organized a campaign to target
WFILM’s advertisers.

92. DeMelfi publicly targeted WHLM for employing [Mr.
Reilly] and portrayed WHLM as a racist organization
for employing [Mr. Reilly].

93. DeMelfi attacked [Mr. Reilly] by encouraging the
general public to call WHLM and demand to know why
WHLM employs a bigot - i.e., [Mr. Reilly].

94. DeMelfi claimed [Mr. Reilly] was involved in the hate
march - i.e., the Rally.

97. DeFrain stated [Mr. Reilly] participated in the Rally as
a participant and not an observer. According to
DeFrain, [Mr. Reilly] “went to the white-supremacist
[Rally] as a participant, not an observer.”

98. When DeFrain publicly declared [Mr. Reilly] was a
participant rather than an observer, DeFrain intended
to declare that [Mr. Reilly] was a racist and bigot.

100. DeFrain also declared [Mr. Reilly] was openly
promoting the Rally on WHLM.

104. Bernardini publicly stated, “There’s a mountain of
evidence proving that David Reilly is a white
nationalist, and you know the saying about the apple
not falling far from the tree.”

123. Helbock claimed [Mr. Reilly] embraced Neo-Nazi ideas.

128. Wheeler claimed [Mr. Reilly] supports Neo-Nazis.

129. Wheeler claimed WHLM employs Nazis - referring to
[Mr. Reilly]

130. Wheeler referred to [Mr. Reilly] as a racist fuck and a
douche.

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137. Hayman publicly referred to [Mr. Reilly] as a white
supremacist.

138. As part of a campaign to target [Mr. Reilly], Hayman
proudly boasted: “We’ve got them on the ropes.
David Reilly has been suspended without pay pending
an internal investigation.”

Mr. Reilly’s Brief at 14-15.

Mr. Reilly then faults the trial court for failing to “include any indicia in

its reasoning that it considered whether there is a possibility that any of the

statements in the Amended Complaint included any undisclosed facts.” Id. at

16. He believes the statements that he attributed to various defendants

“speak to the factual nature of the assertions contained within.” Id. Hence,

Mr. Reilly claims these statements are either factual assertions or opinions

based on undisclosed, factual assertions that are actionable for defamation.

Before addressing the merits of Mr. Reilly’s claims, we pause to ascertain

which issues are properly before this Court for review. Mr. Reilly’s argument

focuses exclusively on the first count (defamation) of his operable complaint.

Thus, he does not contend that the trial court committed an error of law by

dismissing with prejudice the other counts: defamation per se, defamation by

implication, and invasion of privacy – false light. Accordingly, we limit our

review to Mr. Reilly’s count for defamation.

Moreover, some of the defendants argue that Mr. Reilly has partially

waived this appellate issue by failing to tie his allegations of trial court error

to them. We agree.

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“The applicability of waiver principles presents a question of law, over

which our standard of review is de novo. Additionally . . . our scope of review

is plenary.” Temple Estate of Temple v. Providence Care Ctr., LLC, 233

A.3d 750, 760 (Pa. 2020).

“The Rules of Appellate Procedure state unequivocally that each

question an appellant raises is to be supported by discussion and analysis of

pertinent authority.” Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa.

Super. 2002); Pa.R.A.P. 2119(b). Under our Appellate Rules, “arguments

which are not appropriately developed are waived,” because we “will not act

as counsel and will not develop arguments on behalf of an appellant.” Coulter

v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014). “When an appellant’s

argument is underdeveloped, we may not supply [him] with a better one. In

such situations, we shall not . . . scour the record to find evidence to support

an argument; instead, we will deem the issue to be waived.”

Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884–85 (Pa. Super.

2019), appeal denied, 221 A.3d 644 (Pa. 2019).

From Mr. Reilly’s “cursory reading” of his First Amended Complaint, he

identifies the alleged statements of nine defendants as grounds for reversal.

These defendants are Mr. Mehalshick, Ms. Choate, Mr. Heisler, Mr. DeMelfi,

Mr. DeFrain, Mr. Bernadini, Mr. Helbock, Mr. Wheeler, and Mr. Hayman. See

Mr. Reilly’s Brief at 14-15. Because Mr. Reilly alleged that Mr. Mehalshick and

Ms. Choate are agents of WBRE-TV, his inclusion of their statements within

this section extend to WBRE-TV. Thus, Mr. Reilly has developed an appellate

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argument as to only ten of the 17 defendants. He does not identify any alleged

statements of WNEP—Channel 16, Ms. Goldklang, Mr. Palumbo, Mr. Bennett,

Ms. Carson, the United Way of Columbia and Montour County, or Ms. Mael

that he believes the trial court erroneously deemed opinions. Mr. Reilly has

developed no argument whatsoever as to those seven defendants, and this

Court “may not supply [him] with a better one.” Pi Delta Psi, Inc., 211 A.3d

at 884. Nor will this Court scour the First Amended Complaint to find alleged

statements that the trial court may have incorrectly deemed opinions.

Instead, Mr. Reilly has waived any application of this claim of error to

WNEP—Channel 16, Ms. Goldklang, Mr. Palumbo, Mr. Bennett, Ms. Carson,

the United Way of Columbia and Montour County, and Ms. Mael. We therefore

affirm the trial court’s order dismissing them from this action with prejudice.

As for the ten defendants to whom Mr. Reilly’s argument refers, we

further limit our review to the specific statements of those defendants that Mr.

Reilly identified in his brief. Otherwise, this Court risks serving as both his

appellate advocate and adjudicator. Any error the trial court made regarding

any of the alleged statements that Mr. Reilly did not identify in his argument

are also waived. See Pi Delta Psi, Inc., supra.

Turning to the merits of those statements in Mr. Reilly’s brief, we must

determine whether, as a matter of law, the trial court should have sustained

the ten defendants’ preliminary objections in the nature of a demurrer. Such

preliminary objections “test the legal sufficiency of the complaint.” Am.

Interior Constr. & Blinds Inc. v. Benjamin’s Desk, LLC, 206 A.3d 509,

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512 (Pa. Super. 2019). We may affirm the order sustaining a demurrer only

if we have no “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 should be resolved in favor of overruling

the preliminary objections.” Id. Our “standard of review is de novo . . . .”

Martin v. Rite Aid of Pennsylvania, Inc., 80 A.3d 813, 814 (Pa. Super.

2013).

As in his count for defamation, Mr. Reilly needed to plead facts relevant

to the following elements for each of the ten defendants:

(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.

Weirton Med. Ctr., Inc. v. Introublezone, Inc., 193 A.3d 967, 973 (Pa.

Super. 2018) (quoting 42 Pa.C.S.A. § 8343). In this matter, the trial court

found that, as a matter of law, Mr. Reilly pleaded insufficient facts to satisfy

the first element – i.e., that the statements he attributes to the ten defendants

were defamatory communications.

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Regarding this element, we have held, “A communication is defamatory

if it tends to deter third persons from associating with the subject of the

communication or to harm his reputation by lowering him in the estimation of

the community.” Parano v. O’Connor, 641 A.2d 607, 609 (Pa. Super. 1994).

“Only after the trial court has determined, as a matter of law, that the

communication is capable of a defamatory meaning does the jury consider the

defamatory nature of the communication.” Id.

“Finally, opinion without more does not create a cause of action [for

defamation]. Instead, the [plaintiff] must demonstrate that the

communicated opinion may reasonably be understood to imply the existence

of undisclosed defamatory facts justifying the opinion.” Mathias v.

Carpenter, 587 A.2d 1, 2–3 (Pa. Super. 1991) (emphasis added). We have

long held in Pennsylvania that an “accusation of racial prejudice” is not

defamatory. Rybas v. Wapner, 457 A.2d 108, 110 (Pa. Super. 1983); see

also MacElree v. Philadelphia Newspapers, Inc., 674 A.2d 1050, 1055

(Pa. 1996) (Cappy, J. concurring). If someone makes “a mere abstract

statement of a belief based on unworthy prejudice, [then] there is nothing

particularly [defamatory] about that . . . .” O’Donnell v. Philadelphia

Record Co., 51 A.2d 775 (Pa. 1947). Calling “a person a bigot or other

appropriate name descriptive of his political, racial, religious, economic, or

sociological philosophies gives no rise to an action for libel,” because these

are a speaker’s personal opinions of the plaintiff’s world views. Rybas, 457

A.2d at 110.

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This Court based its conclusion upon federal constitutional concerns. As

we explained, “to restrict too severely the right to express such opinions, no

matter how annoying or disagreeable, would be dangerous curtailment of a

First Amendment Right.” Id. “Individuals should be able to express their

views about the prejudices of others without the chilling effect of a possible

lawsuit in defamation resulting from their words.” Id.

We apply this legal test to the statements of each defendant in turn.

1. Andy Mehalshick

We begin with Mr. Mehalshick. According to the First Amended

Complaint, Mr. Mehalshick reported that Mr. Reilly made racist comments

related to the Rally, made racial comments on the radio, posted racist social-

media content, and posted support for Neo-Nazis on the Internet. See First

Amended Complaint at 7. The trial court correctly held that these are opinions

under our precedents. Whether Mr. Reilly’s comments relating to the Rally,

whether his comments on the radio, or whether his social-media posts were

“racist” is a matter of Mr. Mehalshick’s opinion. See Rybas, supra. What

one person may view as racist may be acceptable to others as healthy socio-

political debate.

The same is true for any statement that Mr. Mehalshick may have made

regarding Mr. Reilly’s online posts that allegedly supported Neo-Nazism.

Whether Mr. Reilly’s posts supported Neo-Nazism is an inquiry centered on

whatever Mr. Mehalshick personally views as the ideals and philosophies of

Neo-Nazism. His views of what constitutes that political philosophy are not

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facts capable of defamatory meaning, nor do they hint at any undisclosed

facts. Regardless of what online posts may have fueled Mr. Mehalshick’s views

of Mr. Reilly’s political philosophies, Mr. Mehalshick’s views of those political

philosophies are his own and cannot expose him to liability for defamation

under Rybas, supra.

Thus, the trial court correctly sustained the preliminary objection of Mr.

Mehalshick as to the first count of the amended complaint.

2. Kelly Choate

Regarding Ms. Choate, she allegedly reported that Mr. Reilly supported

the Alt-Right on his Twitter Page and that he posted racial material on his

social-media pages. See id. at 8. As with Mr. Mehalshick’s comments, neither

of these statements are capable of defamatory meaning. Ms. Choate’s

personal views of what constitutes supporting the political philosophies of the

Alt-Right are her own opinions, as is what constitutes a “racial” post on social

media. See Rybas, supra.

Accordingly, the trial court properly sustained the preliminary objections

of Ms. Choate as to the first count of the amended complaint.

3. WBRE-TV

We next consider the preliminary objection of WBRE-TV. This defendant

is a corporation. In Pennsylvania, “a corporation may act only through its

officers and agents . . . .” Daniel Adams Assocs., Inc. v. Rimbach Pub.,

Inc., 519 A.2d 997, 1001–02 (Pa. Super. 1987).

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Ms. Choate and Mr. Mehalshick are the only alleged agents of WBRE-TV

whom Mr. Reilly has sued. Because the trial court properly sustained the

preliminary objections of Ms. Choate and Mr. Mehalshick, it also properly

sustained the preliminary objections of WBRE-TV. That corporation could only

be vicariously liable to the extent that its two agents could have been directly

liable for defamation.

4. Dwayne Heisler

Mr. Reilly alleges that Mr. Heisler said WHLM promoted the Rally. See

First Amended Complaint at 9. This alleged statement does not apply to Mr.

Reilly. It is about the conduct of a third party, WHLM. Mr. Heisler’s alleged

statement is not actionable by Mr. Reilly, because Mr. Reilly has no standing

to assert harm such comments might cause to a third party. See 42 Pa.C.S.A.

§ 8343(a)(3).

As such, Mr. Reilly’s reliance upon whatever Mr. Heisler may have said

about WHLM does not persuade us that the trial court erroneously sustained

Mr. Heisler’s preliminary objection to count one of the operable complaint.

5. Vince DeMelfi

Next, Mr. Reilly claims he pleaded sufficient facts to overcome the

preliminary objection of Mr. DeMelfi. In this regard, Mr. Reilly relies upon his

allegations that Mr. DeMelfi referred to him as a bigot, racist, and Neo-Nazi;

publicly targeted WHLM for employing him and portrayed WHLM as a racist

organization; encouraged the public to call WHLM and demand to know why

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it employs a bigot; and claimed he was involved in a hate march - i.e., the

Rally. See First Amended Complaint at 10.

Even if Mr. DeMelfi referred to Mr. Reilly as a bigot, racist, and Neo-

Nazi, such comments are merely his opinion under our precedents. They are

legally incapable of defamatory meaning. See Rybas, supra. As for Mr.

Reilly’s reliance upon his allegations that Mr. DeMelfi targeted WHLM and

portrayed it as a racist organization, these claims are no basis for a defamation

action by Mr. Reilly. He has no standing to assert the rights of WHLM, because

any statements by Mr. DeMelfi about the radio station do not reflect upon Mr.

Reilly’s character. See 42 Pa.C.S.A. § 8343(a)(3).

Regarding Mr. Reilly’s allegation that Mr. DeMelfi encouraged the public

to call the radio station about his employment, this is a factual allegation of

Mr. DeMelfi’s conduct, not of anything he communicated. Mr. Reilly alleges

that Mr. DeMelfi truly did encourage the public to call the radio station. Thus,

Mr. Reilly does not allege a falsehood by Mr. DeMelfi. What motivated Mr.

DeMelfi’s action in this regard was his underlying opinion – i.e., that Mr. Reilly

is a racist. As such, there is nothing defamatory about this allegation. See

Rybas, supra.

Turning to Mr. Reilly’s fourth ground for reversing the trial court’ order

as to Mr. DeMelfi, we again find no error. Mr. DeMelfi allegedly said Mr. Reilly

was “involved” in the Rally. First Amended Complaint at 10. Taking the

allegations as true and drawing all reasonable inferences therefrom that favor

Mr. Reilly, we infer that “involved” means that Mr. Reilly actively participated

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in (rather than passively filmed) the Rally. Even taking the allegation in this

light, the statement has no defamatory meaning as a matter of law.

Participating in the Charlottesville Rally does not undermine Mr. Reilly’s

reputation in the community. Indeed, as one commentator opined, the

Charlottesville Rally had “very fine people, on both sides . . . there were people

protesting very quietly the taking down of the statue of Robert E. Lee . . . you

had a lot of people in that group that were there to innocently protest, and

very legally protest.” President Donald J. Trump, August 15, 2017 Press

Conference.2 Thus, an allegation that Mr. Reilly was “involved” in the Rally at

Charlottesville could, at most, indicate that Mr. Reilly legally exercised his First

Amendment rights to protest peaceably and to speak freely on political

matters. There is nothing in this alleged statement implying Mr. Reilly

committed any crime or did anything untoward in Charlottesville. In fact, Mr.

DeMelfi’s audience might have considered Mr. Reilly to be one of the “very fine

people” in Charlottesville on that August weekend. Id.

Absent from the amended complaint is any allegation of who heard Mr.

DeMelfi’s statement or why they might have perceived it in a negative light.

Additionally, just as President Trump was entitled to his opinion that the Rally

____________________________________________

2 See Glenn Kessler, THE WASHINGTON POST, The “Very Fine People” at
Charlottesville: Who Were They?, available at
https://www.washingtonpost.com/politics/2020/05/08/very-fine-people-
charlottesville-who-were-they-2/ (last visited 2/28/21).

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had “very fine” participants, Mr. DeMelfi was entitled to his opinion that the

Rally was a hate march. See Rybas, supra.

The trial court therefore properly sustained the preliminary objections

of Mr. DeMelfi as to the first count of the amended complaint.

6. Chris DeFrain

Next, Mr. Reilly claims the trial court erroneously sustained Mr.

DeFrain’s preliminary objection. Mr. DeFrain allegedly said Mr. Reilly “went to

the white-supremacist [Rally] as a participant, not an observer,” intended to

declare that Mr. Reilly was a racist and bigot, and claimed that Mr. Reilly

promoted the Rally on WHLM. See First Amended Complaint at 10-11.

Stating that the Rally was for “white-supremacists” is an expression of

Mr. DeFrain’s socio-political opinion, to which the law attributes no defamatory

meaning. See Rybas, supra. The same is true of declarations that Mr. Reilly

was a racist and bigot. See id. Finally, regarding any statement that Mr.

Reilly promoted the Charlottesville Rally or participated in it were incapable of

defamatory meaning, because promoting and participating in a political rally

is not an object of ridicule. If such promotion or attendance is negative is a

matter of personal opinion and political perception. See Trump, supra. Thus,

the statement is incapable of defamatory meaning, as a matter of law, and

the trial court properly sustained the preliminary objections of Mr. DeMelfi.

7. Brian Bernardini

Mr. Reilly asserts the trial court should have overruled Mr. Bernardini’s

preliminary objection, because Mr. Bernardini allegedly said, “There’s a

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mountain of evidence proving that David Reilly is a white nationalist . . .” First

Amended Complaint at 11. Whether any evidence “proves” that Mr. Reilly is

a white nationalist is matter of socio-political opinion incapable of defamatory

meaning. See Rybas, supra. This is so, because the conclusion of the

alleged statement rests upon the implied, subjective premise of how Mr.

Bernardini defines white-supremacist views.

Accordingly, the trial court properly sustained the preliminary objections

of Mr. Bernardini as to the first count of the amended complaint.

8. Oren Helbock

As for Mr. Helbock, Mr. Reilly believes the trial court erred, because Mr.

Helbock allegedly “claimed that [Mr. Reilly] embraced Neo-Nazi ideas.” First

Amended Complaint at 13. Whether Mr. Reilly embraced the political

philosophies of Neo-Nazism is an opinion, incapable of defamatory meaning

under Rybas, supra.

The trial court therefore properly sustained the preliminary objections

of Mr. Helbock as to the first count of the amended complaint.

9. Nate Wheeler

Mr. Reilly next claims that the trial court should have overruled the

preliminary objections of Mr. Wheeler. He bases this upon his allegations that

Mr. Wheeler said Mr. Reilly supports Neo-Nazis, claimed that WHLM employs

Nazis, and referred to Mr. Reilly as a “racist fuck and a douche.” First

Amended Complaint at 14.

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Mr. Wheeler’s statements about the employment practices of WHLM are

not defamatory of Mr. Reilly, because they do not reflect upon Mr. Reilly’s

character. See 42 Pa.C.S.A. § 8343(a)(3). And, even if they did, the

underlying accusation regarding WHLM employing a Nazi is not defamatory,

as a matter of law, because whether Mr. Reilly is a Nazi constitutes the political

opinion of Mr. Wheeler. See Rybas, supra. The same is true for Mr. Reilly’s

allegations that Mr. Wheeler called him a Neo-Nazi supporter and a “racist

fuck.” First Amended Complaint at 14; see Rybas, supra.

Finally, regarding Mr. Wheeler’s alleged comment that Mr. Reilly is a

“douche,” this is also opinion. In this context, Mr. Wheeler undoubtedly was

using the term “douche” in its idiomatic sense, i.e., that Mr. Reilly was at “an

obnoxious or offensive person.” Fourth Definition of “Douche,” MERRIAM-

WEBSTER DICTIONARY ONLINE, available at https://www.merriam-

webster.com/dictionary/douche (last visited 2/28/21). This was clearly an

expression of Mr. Wheeler’s personal opinion of Mr. Reilly and not actionable

for defamation. See Mathias, supra.

As a result, the trial court properly sustained the preliminary objections

of Mr. Wheeler as to the first count of the amended complaint.

10. Keith Lawrence Hayman

Finally, regarding Mr. Hayman’s alleged comments, Mr. Reilly contends

the trial court erred in granting Mr. Hayman’s preliminary objection, because

he allegedly referred to Mr. Reilly as a white supremacist and said, “We’ve got

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them on the ropes. David Reilly has been suspended without pay pending an

internal investigation” of WHLM radio. First Amended Complaint at 15.

Referring to Mr. Reilly as a white supremacist was a statement of Mr.

Hayman’s opinion of Mr. Reilly’s socio-political philosophy and therefore not

capable of defamatory meaning under Rybas, supra. However, the

statement that the radio station suspended Mr. Reilly “without pay pending an

internal investigation” is a statement of fact. Indeed, Mr. Hayman seems to

concede this point in his brief. He wrote, “The only statement highlighted by

[Mr. Reilly] which . . . does not involve a statement regarding racial prejudice

or political views, is the statement . . . regarding [Mr.] Reilly being suspended

without pay pending an investigation.” Mr. Hayman’s Brief at 16.

Rather than attempt to refute the factual nature of this statement, Mr.

Hayman seeks to shift the burden to Mr. Reilly to prove its falsity. He argues

that, had Mr. Reilly “attached transcripts of the news reports to his Amended

Complaint, . . . it would be evident that the source of this ‘undisclosed’ fact

was a press release from WHLM announcing that Reilly had been suspended,

which had been reported by the media.” Id. at 16-17. In other words, Mr.

Hayman seeks to assert the affirmative defense of truth – i.e., that the

statement of fact he allegedly made was true and, thus, not defamatory.

“[A]ll affirmative defenses including . . . truth . . . shall be pleaded in a

responsive pleading under the heading ‘New Matter’.” Pa.R.C.P. No. 1030.

Hence, Mr. Hayman’s asserted defense of “truth,” must wait until he files an

Answer and New Matter to Mr. Reilly’s complaint.

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Accordingly, the trial court erred when it concluded that Mr. Hayman’s

alleged statement that Mr. Reilly was “suspended without pay pending an

internal investigation” was a matter of personal opinion. If Mr. Hayman made

that statement, then he made a declaration of fact, the truth or falsehood of

which may be ascertained from empirical evidence. As such, we agree with

Mr. Reilly on this point; the trial court should have overruled the preliminary

objection of Mr. Hayman as to the count of defamation.

In sum, Mr. Reilly’s second issue affords him appellate relief only as to

Mr. Hayman. As to all other 16 defendants, this issue is either waived or lacks

merit.

C. The Trial Court’s Scope of Review

For his third issue, Mr. Reilly contends the trial court exceeded its scope

of review by considering evidence outside his First Amended Complaint. To

support this contention, Mr. Reilly cites one sentence from the trial court’s

1925(a) Opinion: “Defendants’ comments were based on disclosed facts

posted by [Mr. Reilly] in his Twitter blog page as averred in the complaint.”

Mr. Reilly’s Brief at 17 (quoting Trial Court Opinion, 6/19/20, at 2). He also

alleges the defendants impermissibly attached screenshots of his various

Internet postings that constitute evidence from outside the operable

complaint.3

____________________________________________

3We reincorporate our scope and standard of review for waiver in Section B,
supra, here by reference.

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The quotation that Mr. Reilly takes from the Rule 1925(a) Opinion clearly

states that the trial court based its reasoning on the disclosed facts that Mr.

Reilly posted on his Twitter account “as averred in the complaint.” Id. Thus,

the quote upon which Mr. Reilly relies to claim the trial court exceeded its

scope of review proves exactly the opposite occurred. We take the trial court

at its word; it relied upon the averments “in the complaint.” Id. Thus, it did

not exceed its scope of review in this regard.

As for the exhibits that some defendants attached to their preliminary

objections, the trial court asserts that Mr. Reilly did not preserve this claim of

error for our review. See Trial Court Opinion, 6/19/20, at 3. We agree.

When a party includes inappropriate material in a pleading, such as

preliminary objections, the offended party has resource under the Rules of

Civil Procedure. “The proper method for challenging the propriety of a

preliminary objection is by a preliminary objection to the preliminary

objection.” 2 Goodrich Amram 2d § 1017(a):13. “Preliminary objections may

be filed by any party to any pleading” based on the “(2) failure of a pleading

to conform to law or rule of court . . .” Pa.R.C.P. 1028.

Mr. Reilly claims the preliminary objections of certain defendants failed

to conform to the law or rule of court that barred them from attaching

evidence to their preliminary objections. He therefore should have filed

preliminary objections to those preliminary objections under Rule of Civil

Procedure 1028(a)(2) and asserted to the trial court that it should strike the

attached exhibits and links to various websites from the defendants’

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preliminary objections. Mr. Reilly did not do so. Thus, he did not raise this

issue in the trial court, as the Rules of Civil Procedure demand.

“Claims which have not been raised in the trial court may not be raised

for the first time on appeal.” Jahanshahi v. Centura Dev. Co., 816 A.2d

1179, 1189 (Pa. Super. 2003). By failing to raise any impropriety of the

attachments to some of the defendants’ preliminary objections below, Mr.

Reilly has not preserved this claim of error for appellate review. We therefore

dismiss this claim of error as waived.

D. The Trial Court’s Standard of Review

We next address Mr. Reilly’s fourth and fifth issues simultaneously,

because they both implicate the trial court’s standard of review. He contends

that the trial court (1) erroneously applied the standard of review for summary

judgment when reviewing the preliminary objections and (2) erroneously

applied the legal test for public figures to him, a private individual.4

Mr. Reilly identifies nothing of record to demonstrate that the trial court

applied a summary-judgment standard of review. He baldly announces that

the trial court, “in holding that the defendants’ statements were based on

disclosed facts, took the averments in the defendants’ preliminary objections

and weighed them against those of the amended complaint, thereby utilizing

a summary-judgment standard.” Mr. Reilly’s Brief at 19-20. This conclusory

statement is not a legal analysis; thus, this argument is underdeveloped.
____________________________________________

4We reincorporate our scope and standard of review for waiver in Section B,
supra, here by reference.

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We “will not act as counsel and will not develop arguments on behalf of

an appellant.” Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super.

2017). “It is well-established that, when issues are not properly raised and

developed in briefs, when the briefs are wholly inadequate to present specific

issues for review, a court will not consider the merits thereof.” Id. (some

punctuation and quotation omitted). Instead, we dismiss the issues as

waived. See Pi Delta Psi, Inc., 211 A.3d at 884. Because Mr. Reilly has not

developed his claim that the trial court applied the standard of review for

summary judgment, we dismiss this issue as waived.

Turning to the public-figure standard that Mr. Reilly alleges the trial

court erroneously applied, the record belies his contention. Mr. Reilly asserts

that the “trial court reasoned that [he] has not shown evidence that the

statements made by the defendants were false or that they were published/re-

tweeted in reckless disregard to their falsity.” Mr. Reilly’s Brief at 21. To

support that contention, he directs us to “See Appendix ‘B’” of his brief, the

trial court’s 1925(a) Opinion. Id. Noticeably absent is any page on which Mr.

Reilly believes the trial court committed this error.

The trial court made no such mistake. The court “found that [Mr.

Reilly’s] new assertions in the amended complaint did not show that the

defamatory statements had been published at least negligently” – i.e., the

minimum degree of fault necessary for a private person to make a case for

defamation. Trial Court Opinion, 6/19/20, at 4 (emphasis added) (citing Am.

Future Sys. Inc. v. Better Bus. Bureau, 932 A.2d 389 (Pa. 2007)). Hence,

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Mr. Reilly’s claim that the trial court applied the heightened, public-figure

standard of New York Times v. Sullivan, 376 U.S. 254 (1964), is incorrect.

E. The Trial Court’s Discovery Ruling (Revisited)

For his final appellate claim, Mr. Reilly mounts another challenge to the

discovery ruling. Here, he asserts the “trial court committed reversible error

when it refused to permit [him] to conduct discovery while simultaneously

permitting the defendants to proceed with discovery.” Mr. Reilly’s Brief at 21

(capitalization removed).5

The trial court indicates that we should find waiver. Citing to Dilliplaine

v. Lehigh Valley Tr. Co., 322 A.2d 114 (Pa. 1974), it opines that Mr. Reilly

committed waiver by failing to raise this issue below, because he did not object

to the defendants’ discovery requests. See Trial Court Opinion, 6/19/20, at

4. Indeed, Mr. Reilly concedes he “did not object to the discovery requests

issued by the defendants . . . .” Mr. Reilly’s Brief at 22. While we commend

Mr. Reilly’s candor, this is waiver under Dilliplaine.

In that landmark case repudiating the doctrine of fundamental error, the

Supreme Court of Pennsylvania explained that raising issues in the trial court

is an imperative for attorneys and prevents trial-court proceedings from

“becoming merely a dress rehearsal.” Id. at 116. To allow appellate courts

to decide issues in the first instance “removes the professional necessity for

trial counsel to be prepared to litigate the case fully at trial and to create a
____________________________________________

5We reincorporate our scope and standard of review for waiver in Section B,
supra, here by reference.

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record adequate for appellate review.” Id. “The ill-prepared advocate’s hope

is that an appellate court will come to his aid after the fact and afford him

relief despite his failure at trial to object to an alleged error.” Id. Additionally,

the “[f]ailure to interpose a timely objection . . . denies the trial court the

chance to hear argument on the issue and an opportunity to correct error.”

Id.

Mr. Reilly interposed no objection to the defendant’s discovery requests.

Thus, the trial court had no opportunity to rule on their propriety in the first

instance. Mr. Reilly has therefore failed to preserve this issue for appeal.

Also, even if he had preserved it, Mr. Reilly committed a second wavier

on appeal. He has cited to no legal authority to support his claim that the trial

court misapplied the Rules of Civil Procedure pertaining to discovery. See Mr.

Reilly’s Brief at 21-22. “It is well settled that a failure . . . to cite any authority

supporting any argument constitutes a waiver of issues on appeal.” George

v. Ellis, 911 A.2d 121, 126 (Pa. Super. 2006); Pa.R.A.P. 2119(a) (dictating

that “The argument shall be divided into as many parts as there are questions

to be argued; and shall have . . . citation of authorities as are deemed

pertinent.”).

Thus, based on Mr. Reilly’s failure to object below, and his failure to cite

any authority to support this claim of error on appeal, we dismiss his final

appellate issue as waived.

Mr. Reilly has waived most of his arguments. The vast majority of the

rest is meritless. The only instance where the trial court erred pertains to Mr.

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Hayman’s preliminary objection to the first count of the operable complaint.

In all other respects, we affirm the order sustaining preliminary objections and

dismissing the First Amended Complaint with prejudice as to the other 16

defendants.

Order reversed in part and affirmed in part. Case remanded for further

proceedings consistent with this decision.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/17/2021

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