J-A06003-18


                                  2018 PA Super 209

    WEIRTON MEDICAL CENTER, INC.,                       IN THE SUPERIOR COURT
                                                                  OF
                                                             PENNSYLVANIA
                             Appellant

                        v.

    INTROUBLEZONE, INC., D/B/A
    INTROUBLEZONE PRODUCTIONS, A
    WYOMING CORPORATION, AND PAUL
    SCHNEIDER AND LYNDA SCHNEIDER,
    HUSBAND AND WIFE,

                             Appellees                     No. 952 WDA 2017


                  Appeal from the Order Entered June 13, 2017
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD-16-001563


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

CONCURRING AND DISSENTING OPINION BY BENDER, P.J.E.:

                                                             FILED JULY 18, 2018

        I respectfully disagree with the Majority’s conclusions regarding the

dismissal of WMC’s claims for defamation, and false association and/or false

advertising under the Lanham Act.              For the reasons that follow, I would

reverse the trial court’s order sustaining the preliminary objections in the

nature of a demurrer filed by Appellees in its entirety, and remand for further

proceedings.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       Initially, I believe the trial court erred when it reviewed and considered

evidence that was outside the complaint — specifically, the Video.        In my

opinion, examining the Video contravened the standard of review for deciding

preliminary objections. While the trial court may have been trying to

streamline the litigation by reviewing the Video, neither it nor Appellees offer

authority to support that: (1) WMC was required to append an actual

transcript of the Video to its complaint;1 (2) the trial court could review

evidence outside of the complaint in disposing of Appellees’ preliminary

objections;2 and (3) the trial court could, on its own initiative, file the Video

as part of the record after WMC had already filed its notice of appeal to this

Court.3
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1 Appellees did not make this argument in their preliminary objections, and do
not argue it on appeal, despite WMC’s assertion in its brief that it was not
required to provide an actual transcript. See WMC’s Brief at 10 (“In an action
for slander the complaint is sufficient if it contains the substance of the
spoken words.”) (citing Itri v. Lewis, 422 A.2d 591, 592 (Pa. Super. 1980)
(per curiam)) (emphasis added in WMC’s brief).

2 Appellees also do not develop an argument in their brief advocating that the
trial court could consider evidence outside of WMC’s complaint. Rather, they
claim that WMC waived this issue by submitting the Video to the trial court.
Appellees’ Brief at 4. I would not deem this issue waived, given the procedural
irregularities below and that WMC submitted the Video in response to the trial
court’s inquiry and/or direction.

3 As the Majority mentions, at argument on Appellees’ preliminary objections,
the trial court requested that WMC send it the Video. See Majority Op. at 4.
It appears that after WMC had already filed its notice of appeal, the trial court
then took it upon itself to make the Video a part of the record. See Rule
1925(a) Opinion, 6/28/2017, at 2 (“The DVD that I reviewed has been filed
by me with the court file and should be forwarded with that file.”)
(unnumbered pages).

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      This Court has stated, “[P]reliminary objections in the nature of a

demurrer require the court to resolve the issues solely on the basis of the

pleadings; no testimony or other evidence outside of the complaint may be

considered to dispose of the legal issues presented by a demurrer.” Mellon

Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994) (citation

omitted). “In order to sustain a demurrer, it is essential that the face of the

complaint indicate that its claims may not be sustained and that the law will

not permit a recovery.” Id. (citation omitted).

      With respect to WMC’s defamation claim, I believe the trial court should

not have evaluated the Video, but instead should have limited its review of

that claim to the allegations made in WMC’s complaint. As WMC points out,

the trial court went beyond “resolving the basic legal question of whether WMC

stated a cognizable claim in its [c]omplaint.” WMC’s Brief at 11.      Further,

based on the complaint, I would determine that WMC set forth sufficient facts

to state a plausible claim for defamation against Appellees. In arriving at that

conclusion, I note my divergence with two key determinations made by the

Majority.

      First, I disagree with the Majority that WMC failed to establish a

connection between the Video and WMC.        See Majority Op. at 7-8. In its

complaint, WMC alleged that, “[a]t the time [Appellees] were engaged in their

efforts to promote Drastic Plastic, Dr. Oser’s affiliation with WMC was well-

known and publicized among current patients, prospective patients, and the

medical community. In fact, Dr. Oser’s website and Facebook page included

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direct links to WMC-related websites.”       Complaint, 3/23/2017, at ¶ 25

(internal citations omitted). Moreover, WMC averred that “[Appellees’] use of

WMC’s identifying characteristics, medical professionals and employees (in

particular, Dr. Oser), facilities, and the display of confidential patient

information creates the reasonable likelihood that individuals will believe that

WMC is associated with or otherwise endorses Drastic Plastic, the Video, and

its content.” Id. at ¶ 26. At this juncture, we must accept WMC’s allegations

and all inferences reasonably deducible therefrom as true. See Greenberg

v. McGraw, 161 A.3d 976, 980 (Pa. Super. 2017) (“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.”) (citation omitted).    Thus, accepting as true that Dr. Oser’s

association with WMC was well-known throughout the community, I would

consider Dr. Oser’s starring role in Drastic Plastic as sufficient to connect WMC

to the Video.

      Second, I dispute the Majority’s determination that “there was nothing

in the Video that was capable of defamatory meaning with respect to WMC.”

See Majority Op. at 8 n.3.       Again, accepting WMC’s allegations and all

inferences reasonably deducible therefrom as true, which is required at this

stage, see Greenberg, supra, the conduct described in WMC’s complaint

demonstrates a lack of respect for patients and their privacy, thereby lowering

the quality of the medical services that Dr. Oser, his staff, and WMC provide

to them. See Complaint at ¶ 14 (“The Video contains statements made by

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individuals who identify themselves as Dr. Oser’s patients and employees, and

therefore, patients and employees of WMC. Throughout the Video, Dr. Oser’s

patients are frequently and pejoratively called ‘crazy.’     Countless, highly

offensive references are made concerning Dr. Oser’s work in breast

augmentation. Additionally, the Video portrays the residents of West Virginia

as uneducated and willing to waste money on unnecessary plastic surgery.”);

id. at ¶ 27 (“The graphic nature of the Video, its objectification of women, the

careless way in which patient records are displayed, and the contemptuous

way it portrays the residents of West Virginia adversely affects WMC’s

reputation. Among other things, current patients, prospective patients, and

the medical community are led to believe that WMC has no respect for its

patients and their privacy.”).   I do not think that most people would want to

go to a hospital where staff insults them, objectifies them, considers them

uneducated and foolish, and disregards their privacy. To me, such content

could tend to harm the reputation of WMC so as to lower it in the estimation

of the community or deter third persons from associating or dealing with it.

See Bell v. Mayview State Hospital, 853 A.2d 1058, 1062 (Pa. Super.

2004) (“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.”) (citation omitted); see also MacElree v. Philadelphia Newspapers,

Inc., 674 A.2d 1050, 1055 (Pa. 1996) (“Because there was doubt as to the

defamatory nature of the complained of language, [the] appellees’ demurrer

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should have been overruled.”).           Thus, I would decline to dismiss WMC’s

defamation claim on these grounds.

       Finally, as for WMC’s other claims, I agree with the Majority that the

trial court incorrectly determined that, because WMC’s defamation claim

failed, WMC’s claims under the Lanham Act and for trespass must necessarily

fail too. See Majority Op. at 9.4 However, Appellees’ only other argument

raised in their brief as to why these claims should be dismissed is that ITZ

could not have trespassed as “WMC does not allege that … ITZ ever stepped

foot on the property.” See Appellees’ Brief at 8. Yet, it appears that WMC

only advanced its trespassing claim against Mr. and Ms. Schneider — and not

ITZ — in its complaint anyway. See Complaint at 9 (bringing trespass count

against only Mr. and Ms. Schneider).5 Consequently, in light of the arguments

advanced by the parties, I would determine that the trial court’s dismissal of

WMC’s claims for trespass and Lanham Act violations was also improper.



____________________________________________


4 Because I determine that WMC has set forth a cognizable defamation claim,
the basis for the trial court’s rationale would be undermined.

5 Further, in their preliminary objections below, Appellees contended that
WMC’s “trespass claim fails because Dr. Oser had apparent authority to permit
entry and filming on the property, and the filming of the [V]ideo on the
property did not physically damage the property.” See Appellees’ Preliminary
Objections, 5/1/2017, at 2 (unnumbered pages). Additionally, they claimed
that “WMC lacks Lanham Act standing for unfair competition because as set
forth in the [c]omplaint[,] WMC and [Appellees] are not competitors.” Id.
Appellees do not adequately develop and support these arguments below, and
therefore they fail to convince me that WMC’s claims are legally insufficient
on these grounds.

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