J-A26036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMIYLAH BURNS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BLAKELEY COOPER :
:
Appellant : No. 895 EDA 2021
Appeal from the Order Entered April 2, 2021
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2016-11905
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 09, 2021
Blakeley Cooper (Appellant) appeals from the order entered in the
Montgomery County Court of Common Pleas, denying his motion to strike a
judgment entered in favor of Jamiylah Burns (Appellee).1 Appellant previously
appealed from the judgment itself, and this Court affirmed in a published
opinion. Burns v. Cooper, 244 A.3d 1231, 1233 (Pa. Super. 2020), appeal
denied, 252 A.3d 235 (Pa. 2021). Now, Appellant contends: (1) the trial
court had no “subject matter jurisdiction” to enter the underlying judgment
because Appellee had no causes of action for tortious interference with a
contract or defamation; and (2) the trial court failed to determine, as a matter
of law, whether the alleged defamatory statement at issue was an opinion.
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1 An appeal as of right may be taken from “[a]n order refusing to . . . strike
off a judgment.” Pa.R.A.P. 311(a)(1).
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Because we conclude this appeal is frivolous, we affirm the order on appeal,
and remand the case to the trial court for the imposition of attorneys’ fees and
costs upon Appellant’s counsel.
The relevant facts and procedural history underlying the November 1,
2019, judgment were summarized by this Court in a prior opinion as follows.
In December of 2015, while Appellant and Appellee were involved in a
contentious divorce, Appellee visited family in Washington, D.C. Burns, 244
A.3d at 1233. During that visit, her car was broken into and valuables were
stolen. Id. She reported the incident to both the police and her insurance
carrier, Erie Insurance Company (Erie). Id. Because the insurance policy was
in the names of both Appellee and Appellant, Erie “required Appellant to join
in the claim.” Id. at 1234. Appellant, however, refused to do so, and told
Erie’s claim representative he did not believe the incident occurred. Id. He
further stated “Appellee ‘was a liar who could not be trusted[.]’” Id. at 1237.
As a result, the claim representative referred the matter to Erie’s fraud
investigation section. Id. at 1234, 1238. During the ensuing investigation,
Appellee was required to take time off work, sit for a deposition, and retain
counsel. See id. at 1239-40.
On June 13, 2016, Appellee filed the underlying lawsuit, asserting claims
for defamation and tortious interference with a contract against Appellant, and
breach of contract and bad faith against Erie. Sometime after the action was
filed, Erie paid Appellee’s insurance claim, and the claims against Erie were
either settled or dismissed before trial. Burns, 244 A.3d at 1234 n.3.
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In July of 2018, Appellant filed a motion for summary judgment,
asserting Appellee failed to present any facts to support her allegations. See
Appellant’s Motion for Summary Judgment, 7/16/18, at 1. In his brief
accompanying the motion, Appellant argued, inter alia, the alleged
defamatory statement was “simply . . . his opinion of what had occurred” and,
therefore, not actionable. See Appellant’s Brief in Support of Motion for
Summary Judgment, 7/16/18, at 17-18. The trial court denied Appellant’s
motion by order entered October 30, 2018.2 Relevant herein, the court
determined Appellant’s statement, that Appellee “was a liar who could not be
trusted[,]” was capable of a defamatory meaning. Order, 10/30/18, at 2 n.3.
The case against Appellant proceeded to a jury trial. On June 20, 2019,
the jury returned a verdict in favor of Appellee on both counts. See Verdict
Sheet, 6/20/19, at 1. The jury awarded Appellee $55,000 in compensatory
damages and $20,000 in punitive damages. Id. at 1-2. Appellant filed a
timely post-trial motion, followed by an appeal to this Court.3
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2 The order also disposed of summary judgment motions filed by Appellee and
Erie. See Order, 10/30/18, at 1-2 (granting in part and denying in part Erie’s
motion for summary judgment, and granting Appellee’s motion for summary
judgment concerning a counterclaim for abuse of process filed by Appellant).
3 Judgment was entered on the verdict on November 1, 2019, after Appellant
improperly filed a notice of appeal from the order denying his post-trial
motion. See Burns, 244 A.3d at 1233 n.1 (“Although an appeal from an order
denying post-trial motions is interlocutory, where judgment is subsequently
entered, the appeal is “treated as filed after such entry and on the date
thereof.”), citing Pa.R.A.P. 905(a)(5).
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On appeal, Appellant raised the following three claims: (1) the trial
court erred when it failed “to determine before trial, and as a matter of law,
whether any statements made by [him] were capable of a defamatory
meaning[;]” (2) the evidence was insufficient to support the jury’s verdict for
defamation because Appellee “failed to prove ‘the statement’s recipient — the
insurer — understood the statement to have a defamatory meaning[;]” and
(3) the evidence was insufficient to support the jury’s verdict for tortious
interference with a contract because the insurer paid Appellee’s claim, and
thus, she had no actual damages. See Burns, 244 A.3d at 1235, 1237, 1239
(footnote omitted).
This Court affirmed the judgment in a published opinion. With respect
to Appellant’s first claim, the panel determined the trial court did not “shirk[ ]
its duty[,]” but rather properly “considered in the first instance whether the
challenged statement was capable of having a defamatory meaning as a
question of law when it ruled on Appellant’s summary judgment motion.”
Burns, 244 A.3d at 1237. Next, the panel concluded the evidence supported
the jury’s determination that “the defamatory meaning of Appellant’s
statement was understood by Erie representatives.” Id. at 1238. The Burns
Court reasoned that Erie conducted a “full investigation into whether
Appellee’s claim was fraudulent” in response to Appellant’s statement to an
Erie representative that Appellee “was a liar who could not be trusted.” Id.
With regard to Appellant’s third claim — which challenged the jury’s
verdict for tortious interference with a contract — the panel concluded “the
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jury could reasonably find Appellee suffered ‘actual damage’ as a result of
Appellant’s defamatory statement, notwithstanding the fact that Erie
eventually paid out on Appellee’s insurance claim.” Burns, 244 A.3d at 1239.
These damages included, but were not limited to, the additional attorney’s
fees she incurred due to the fraud investigation. Id. at 1240. Appellant
petitioned the Pennsylvania Supreme Court for allocatur review, which was
denied on April 6, 2021. See Burns, 252 A.3d 235.
Meanwhile, Appellee sought to execute on the judgment in the trial
court. On June 8, 2020, she filed a praecipe for writ of execution. Thereafter,
on December 21, 2020, Appellee filed a motion requesting the trial court
compel Appellant to provide responses to previously served interrogatories in
aid of execution of the judgment. See Appellee’s Motion to Compel
[Appellant’s] Discovery Responses, 12/21/20. The trial court granted
Appellee’s motion by order entered March 16, 2021.
On April 1, 2021 — five days before the Supreme Court denied his
petition for allocatur review of his prior appeal — Appellant filed, in the trial
court, the underlying motion to strike both the November 2019 judgment and
the court’s March 16th order. See Appellant’s Motion to Have Judgment (Filed
November 1, 2019) and Order Dated March 16, 2021 Stricken, 4/1/21.
Appellant averred the trial court improperly permitted the jury to determine
whether his statement was an opinion (which is not actionable), when the
court itself should have made that determination as a matter of law. See id.
at 2-4. Because this action “was outside [the trial court’s] subject matter
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jurisdiction[,]” Appellant insisted the judgment was “void,” and could be
stricken at any time. Id. at 4-5. Accordingly, despite this Court’s affirmance
of the judgment on appeal, he moved to strike both the judgment, and in turn,
the court’s March 16th order compelling him to answer Appellee’s
interrogatories in aid of execution on that judgment.
The trial court denied Appellant’s motion the next day. See Order,
4/2/21. This timely appeal follows.4
Appellant raises three questions on appeal:
1. A tortious interference with a contract requires that the
contract not be performed. In this case, the contract was
performed, yet the trial court entered judgment for tortious
interference with the contract. Could the trial court enter such
judgment?
2. If a statement that is alleged to be defamatory is an opinion,
the statement (opinion) is not actionable. In this case,
[Appellee] admits that [Appellant’s] statement is an opinion,
yet the trial court entered judgment for defamation. Could the
trial court enter such judgment?
3. When a statement is alleged to be defamatory, the trial court
must determine, as a matter of law, whether the statement is
an opinion because an opinion is not actionable. In this case,
the trial court did not make such determination; instead, the
trial court had such determination (of law) made by the jury,
which action led to judgment for defamation. Could the trial
court have such determination (of law) made by the jury?
Appellant’s Brief at 4.
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4Appellant complied with the trial court’s directive to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Preliminarily, we emphasize that the appeal before us is not from the
underlying judgment. Rather, this Court affirmed the judgment in our August
2020 opinion.5 See Burns, supra. Instead, Appellant appeals from the post-
appeal order of the trial court denying his motion to strike the judgment,
ostensibly for lack of subject matter jurisdiction. As we discuss infra,
however, Appellant is merely attempting to get a “second bite of the apple” in
the courts.
A trial court may grant a petition to strike a judgment “only for a fatal
defect or irregularity appearing on the face of the record.” Digital Commc'ns
Warehouse, Inc. v. Allen Invs., LLC, 223 A.3d 278, 284 (Pa. Super. 2019)
(citation omitted).
“[A] petition to strike is not a chance to review the merits of the
allegations of a complaint. Rather, a petition to strike is aimed at
defects that affect the validity of the judgment and that entitle the
petitioner, as a matter of law, to relief.”
Id. at 285 (citations omitted). See Resolution Trust Corp. v. Copley Qu-
Wayne Assocs., 683 A.2d 269, 273 (Pa. 1996) (“[I]f the truth of the factual
averments contained in [the] record are disputed, then the remedy is by a
proceeding to open the judgment and not to strike.”).6 Our review of an order
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5 We reiterate that the Pennsylvania Supreme Court denied Appellant’s
request for allocatur review of that decision. See Burns, 252 A.3d 235.
6 By referring to a petition to open judgment, we do not encourage Appellant
to file such a petition in the trial court in a third attempt to undermine the
jury’s verdict. In fact, our research reveals no authority permitting a party to
file a petition to open a judgment entered upon a jury verdict which has been
(Footnote Continued Next Page)
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denying a motion to strike a judgment “is limited to a determination of
whether the record as filed by the party [seeking to uphold the] judgment is
sufficient to sustain the judgment.” First Union Nat. Bank v. Portside
Refrigerated Servs., Inc., 827 A.2d 1224, 1227 (Pa. Super. 2003).
Here, Appellant contends the “fatal defect” on the face of the November
2019 judgment is the trial court’s lack of subject matter jurisdiction.
Applying circular reasoning and a tortured interpretation of case law, Appellant
insists the trial court had no authority to enter judgment on either of
Appellee’s claims because Appellee “had no cause of action.” Appellant’s Brief
at 37, 48. He maintains Appellee’s contract claim was deficient because “the
contract was performed[,]” and the defamation claim was flawed because
trial court shirked its duty by refusing to determine, as a matter of law, if the
statement was a non-actionable opinion, a fact which he claims Appellee later
admitted. See id. at 37, 44-48.
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affirmed on appeal. Rather, a petition to open is appropriate after a
judgment has been confessed, or entered following non pros or default. See
Neducsin v. Caplan, 121 A.3d 498, 506 (Pa. Super. 2015) (party may
petition to open confessed judgment by (1) promptly filing petition, (2)
alleging meritorious defense; and (3) producing sufficient evidence to submit
case to jury); Bartolomeo v. Marshall, 69 A.3d 610, 613 (Pa. Super. 2013)
(party may petition to open judgment of non-pros by (1) promptly filing
petition to open, (2) providing reasonable excuse for delay, and (3)
demonstrating facts exist to support cause of action); Myers v. Wells Fargo
Bank, N.A., 986 A.2d 171, 175–76 (Pa. Super. 2009) (party may petition to
open default judgment by (1) promptly filing petition to open, (2) providing
reasonable excuse for failing to respond to complaint, and (3) pleading
meritorious defense).
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Nevertheless, the fatal flaw in Appellant’s claim is that none of his
arguments implicates, as he claims, the trial court’s subject matter
jurisdiction. “[J]urisdiction of the subject matter is conferred by the
Commonwealth’s Constitution and laws.” Heath v. W.C.A.B. (Pennsylvania
Bd. of Prob. & Parole), 860 A.2d 25, 29 (Pa. 2004). “Jurisdiction lies if the
court had power to enter upon the inquiry, not whether it might ultimately
decide that it could not give relief in the particular case.” In re Est. of
Ciuccarelli, 81 A.3d 953, 958 (Pa. Super. 2013) (citation omitted).
“The assessment of ‘whether a court has subject matter
jurisdiction inquires into the competency of the court to determine
controversies of the general class to which the case presented for
consideration belongs.’” The pertinent consideration is whether
the court could “‘enter upon the inquiry, not whether it might
ultimately decide that it was unable to grant the relief sought in
the particular case.’”
Domus, Inc. v. Signature Bldg. Sys. of PA, LLC, 252 A.3d 628, 636 (Pa.
2021) (citations omitted).
Appellant’s claims concerning purported deficiencies in Appellee’s
causes of action implicate the sufficiency of the evidence presented by
Appellee, not the authority of the trial court to enter a judgment. See Guzek
v. Empire Wholesale Co., 151 A.2d 470, 471 (Pa. 1959) (“A demurrer to a
complainant’s averments of fact, on the ground that they do not support the
asserted cause of action, does not raise a jurisdictional question.”). Moreover,
with regard to his assertion that the trial court improperly directed the jury to
determine, as a matter of law, whether the alleged defamatory statement was
an opinion, Appellant made a similar argument before the trial court in his
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post-trial motion. See Appellant’s Motion for Post-Trial Relief, 7/3/19, at 8
(“Because the Court had the jury do what only the Court could do, [i.e.,
determine whether Appellant’s statements were capable of a defamatory
meaning,] the Court acted outside its subject matter jurisdiction.”). In a prior
opinion, the trial court characterized this argument as “frivolous.” See Trial
Ct. Op., 1/17/20, at 5 n.6. The court stated it was “not aware of any authority
that the allocation of functions between the judge and jury is a matter of the
[trial c]ourt’s subject-matter jurisdiction.” Id. We agree. In fact, Appellant
provides no authority for his tortured interpretation of subject matter
jurisdiction case law.
Thus, because Appellant has failed to identify a fatal defect on the face
of the record, we affirm the trial court’s ruling denying his motion to strike the
judgment. Nevertheless, we would be remiss if we did not comment on the
other deficiencies in this appeal, and address Appellee’s request for sanctions.
First, we note that Appellant did not challenge the contract claim in his
motion to strike. Accordingly, for that reason alone, the argument is waived.
See Pa.R.A.P. 302 (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”).7
Second, Appellant’s arguments in this appeal are very similar to those
presented in his prior appeal — where he was represented by the same
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7As explained above, we reject Appellant’s contention that his claim is a non-
waivable challenge to the trial court’s subject matter jurisdiction.
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counsel. To the extent the challenges are distinct — the first appeal
challenged trial court’s failure to determine if Appellant’s statement was
capable of defamatory meaning, and the present appeal challenges the
trial court’s purported failure to determine if statement was an opinion —
Appellant’s present claim is barred because he failed to raise it in his first
appeal. See Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265,
286 (Pa. Super. 2016) (“Under the doctrine of res judicata, . . . ‘a final
judgment on the merits by a court of competent jurisdiction will bar any future
action on the same cause of action between the parties and their privies[,’
and] forbid[ ] further litigation on ‘all matters which might have been
raised and decided in the former suit, as well as those which were actually
raised therein.’”) (citation omitted and emphasis added).
Third, Appellant’s contention that Appellee admitted the statement was
a non-actionable opinion is simply untrue. Appellant cites to various filings by
Appellee in which she allegedly acknowledged that Appellant “did not possess
any information . . . as to whether this incident did or did not occur” and that
he had “‘zero’ knowledge of the facts” related to her claim. See Appellant’s
Brief at 42-43, citing Appellee’s Brief in Response to Appellant’s Motion for
Summary Judgment, 8/15/18, at 5; Appellee’s Response to Appellant’s Post-
Trial Motion, 7/9/19, at 3. However, a review of those filings reveals Appellee
made those comments in reference to the egregious nature of Appellant’s
defamatory statement. She referenced Appellant’s admission that, despite
the fact he told Erie’s claim representative he did not believe the incident
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occurred and that Appellee was a “liar who could not be trusted,” he “admitted
in his deposition” that he did not have any information regarding the theft.
See Appellee’s Brief in Response to Appellant’s Motion for Summary
Judgment, 8/15/18, at 5; Appellee’s Response to Appellant’s Post-Trial
Motion, 7/9/19, at 3. Moreover, contrary to Appellant’s assertion that no
opinion can support a claim for defamation, we note that “[a] statement in
the form of an opinion is actionable . . . if it may reasonably be understood to
imply the existence of undisclosed defamatory facts justifying the opinion.”
Kuwait & Gulf Link Transp. Co. v. Doe, 216 A.3d 1074, 1086 (Pa. Super.
2019) (citation omitted), appeal denied, 226 A.3d 92 (Pa. 2020). The trial
court properly charged the jury on this proposition of law. See N.T., Jury
Trial, 6/19/19, at 214.
Lastly, we address Appellee’s request for sanctions against Appellant
because, she asserts, this appeal “was filed in bad faith and amounts to
frivolous, obdurate, and vexatious litigation[.]” See Appellee’s Brief at 2, 10.
See also Trial Ct. Op., 7/21/21, at 10 (“Even if [Appellant] himself does not
understand the appellate process, it is expected that his counsel exercise ‘the
legal professionalism to take no for an answer in a court of law.’”).
Pennsylvania Rule of Appellate Procedure 2744 permits an appellate
court to award counsel fees and delay damages “if it determines that an appeal
is frivolous or taken solely for delay or that the conduct of the participant
against whom costs are to be imposed is dilatory, obdurate or vexatious.”
Pa.R.A.P. 2744. The Rule further provides, “The appellate court may remand
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the case to the trial court to determine the amount of damages authorized by
this rule.” Id.
This Court is reluctant to impose Rule 2744 costs and damages so as
“to avoid discouraging litigants from bringing appeals for fear of being
wrongfully sanctioned.” Menna v. St. Agnes Med. Ctr., 690 A.2d 299, 304
(Pa. Super. 1997). Thus, the standard for determining whether an appeal is
frivolous is high: “[A]n appeal is not frivolous simply because it lacks merit[;
r]ather, it must be found that the appeal has no basis in law or fact.” Id.
We conclude the counseled appeal filed in the present case meets this
high standard. Indeed, Appellant’s counsel had no basis in law or fact to file
the motion to strike the judgment, let alone appeal the trial court’s denial of
that motion. Thus, we are compelled to impose sanctions upon counsel for
their vexatious prosecution of this frivolous appeal. We remand this case to
the trial court for the calculation and imposition of attorneys’ fees and costs
incurred by Appellee in this appeal. See Wallace v. State Farm Mutual
Automobile Insurance Co., 199 A.3d 1249, 1257 (Pa. Super. 2018).
Order affirmed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2021
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