J-A26009-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

UNITED SENIOR ADVISORS GROUP, INC.                 IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                         Appellant

                    v.

LEISAWITZ HELLER ABRAMOWITCH
PHILLIPS, P.C.I., WILLIAM R. BLUMER,
ESQUIRE

                                                         No. 365 MDA 2017


              Appeal from the Order Entered January 27, 2017
               In the Court of Common Pleas of Berks County
                       Civil Division at No(s): 08-7390


BEFORE: BOWES, OLSON, AND RANSOM, JJ.

MEMORANDUM BY BOWES, J.:                           FILED FEBRUARY 14, 2018

     United Senior Advisors Group, Inc. appeals from the January 27, 2017

order entering summary judgment against it. We affirm.

     On   January   28,    2008,     Appellant   instituted   this   action   against

Appellees, Leisawitz Heller Abramowitch Phillips, P.C.I. (“LHAP”) and William

R. Blumer, Esquire, in the Chester County Court of Common Pleas, averring

that the named defendants had defamed it and intentionally interfered with

its existing and prospective business relationships.             The matter was

transferred to the Berks County Court of Common Pleas on June 10, 2008,

where preliminary objections were filed and Appellant eventually filed a

second amended complaint.
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      The second amended complaint sets forth that the basis for this

lawsuit was a November 9, 2007 letter authored by Mr. Blumer, in his

capacity as the chairman of the board of Berks County Senior Citizen's

Council and as a local attorney practicing in the area of elder law, and sent

on LHAP letterhead.    The document stated that there was a “Living Trust

Scam” involving companies that solicit senior clubs to present programs on

living trusts and estate planning, and it identified Appellant as one of those

companies.     Second Amended Complaint, 6/10/08, at Exhibit A. The

correspondence characterized the presentations as a “sinister form of

financial exploitation of the elderly” that “often result in seniors losing

thousands of dollars in unnecessary fees for documents they do not need,”

and that “can also result in the sale of investments that are not appropriate

for seniors.” Id.

      The letter delineated the following.    The companies try to gain the

confidence of senior citizens by overstating the expenses associated with the

estate-planning process and exaggerating the benefits of a living trust in

solving estate planning issues faced by elderly citizens, but the presentations

are “disguised attempts to sell annuities and other investment products.” Id.

After a client creates the living trust, the companies immediately try to re-

title assets into the trust’s name and to sell annuities that result in sales

commissions that greatly exceed the fees charged to prepare the living

trusts. The annuities often contain early withdrawal penalties “that result in

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seniors having their assets tied up for as many as ten or twenty years

without being able to access the money without payment of significant

penalties.”   Id.   Appellant averred that the letter was sent to Clara Koch,

who furnished the letter to Gene and Barbara Messner.              These three

recipients “then furnished the November 9, 2007 Correspondence and/or a

verbal account of its contents to numerous others in Berks County, Chester

County, and elsewhere.” Id. at ¶ 10.

        After Appellees filed an answer to the second amended complaint and

Appellant issued a final response to Appellees’ new matter, the pleading

stage of this lawsuit closed on December 22, 2008.         On June 8, 2009,

Appellees sent interrogatories and a request for production of documents to

Appellant.      There were no docket activities from June 8, 2009, until

September 10, 2010, when Neil E. Jokelson, Esquire, entered his appearance

for Appellant due to the death of its original lawyer, Oliver Fey, Esquire. On

December 11, 2012, the Berks County prothonotary sent notice that it

intended to terminate this action due to a lack of docket activity, and, on

January 14, 2013, Appellant responded by filing a notice of its intent to

proceed.

        Other than two orders re-assigning this case to a different judge and

one notice of a change of address by a defense counsel, there were no

documents filed in this lawsuit from January 14, 2013, until February 18,

2015,    when    Mr.   Jokelson   withdrew.   Present   counsel,   Douglas   B.

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Breidenbach Jr., Esquire, entered his appearance for Appellant on May 4,

2015.

        On October 17, 2016, Appellees filed a document titled, “Defendants’

Joint Motion for Summary Judgment,” the body of which also indicates that

the movants were seeking summary judgment. While the motion included

the procedural background of this matter, which necessarily recited the

absence of any activity on Appellant’s part to advance this case, Appellees

clearly set forth, “LHAP Defendant and Defendant Blumer now move for

summary judgment and respectfully submits [sic] that Plaintiff has failed to

identify any actual quantifiable damages such that Plaintiff’s claims fail as a

matter of law.” Defendants’ Joint Motion for Summary Judgment, 10/17/16,

at ¶ 22. The body of the document in question is replete with references to

Pa.R.C.P. 1035.2 and 1035.3, which are rules applicable to the grant of

summary judgment, and it continually demands entry of summary judgment

in favor of Appellees. After Appellant failed to respond to the motion, the

trial court entered summary judgment against Appellant on December 7,

2016.

        Appellant moved for reconsideration of the grant of summary

judgment, claiming that it actually was a motion for judgment of non pros

and failed to establish that Appellees were entitled to such an award.

Appellant additionally claimed that it did not have to file a response to the

summary judgment motion because the order attached to it indicated that:

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1) Appellees were seeking a rule to be issued upon Appellant to show cause

why Appellees were not entitled to relief, which would allow Appellant to

respond to the motion after the rule was issued; and 2) the motion was to

proceed pursuant to Pa.R.C.P. 206.7,1 which pertains to the procedure to be

followed after a rule to show cause is issued.

        The trial court agreed that the order’s reference to a rule to show

cause why the motion should not be granted could cause confusion as to the

necessity of an immediate answer, and, concomitantly, on January 5, 2017,

____________________________________________


1   That rule sets forth:

        (a) If an answer is not filed, all averments of fact in the petition
        may be deemed admitted for the purposes of this subdivision
        and the court shall enter an appropriate order.

        (b) If an answer is filed raising no disputed issues of material
        fact, the court on request of the petitioner shall decide the
        petition on the petition and answer.

        (c) If an answer is filed raising disputed issues of material fact,
        the petitioner may take depositions on those issues, or such
        other discovery as the court allows, within the time set forth in
        the order of the court. If the petitioner does not do so, the
        petition shall be decided on petition and answer and all
        averments of fact responsive to the petition and properly
        pleaded in the answer shall be deemed admitted for the purpose
        of this subdivision.

        (d) The respondent may take depositions, or such other
        discovery as the court allows.

Pa.R.C.P. 206.7




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it granted Appellant’s motion for reconsideration and vacated its December

7, 2016 grant of summary judgment without prejudice.

      Appellees then filed a joint pre-trial conference memorandum, in which

they repeated their claim that Appellant, at trial, would not be able to

produce any evidence of damages.         At the pretrial conference held on

January 20, 2017, Appellees renewed their request for grant of summary

judgment, maintaining that Appellant “in the over eight years since the

inception of the case, including over one and [one-]half years since current

Plaintiff’s Counsel took the case, failed to produce any evidence or undertake

any discovery to show that Defendant’s letter caused any harm to Plaintiff.”

Trial Court Opinion, 4/24/17, at 4-5. In response to that request, “Plaintiff’s

counsel was unable to offer any evidence whatsoever to support Plaintiff’s

claim of damages caused by the 2007 letter,” conceding that Appellant “had

not interviewed or deposed any of the recipients” of the letter to establish

“the alleged harm to Plaintiff.” Id. at 9. Appellant additionally “was unable

to show that additional discovery time would be fruitful in producing such

evidence.” Id. at 10. After hearing the argument of counsel, the trial court

granted summary judgment to Appellees, and this appeal, wherein the

following issues are raised, ensued:

      1. Whether the Court erred in granting summary judgment to
      Defendants where no Motion for Summary Judgment, properly
      designated as such, was filed.




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      2. Whether the Court erred in granting summary judgment to
      Defendants where, assuming arguendo that a Motion for
      Summary Judgment was properly filed and unopposed, the
      Defendants were nevertheless not entitled to summary
      judgment, as a matter of law.

Appellant’s brief at 1.

      Initially, we delineate the standards applicable in the summary

judgment context.         “We review a challenge to the entry of summary

judgment . . . only where it is established that the court committed an error

of law or abused its discretion.”    Finder v. Crawford, 167 A.3d 40, 44

(Pa.Super. 2017). Furthermore,

             In evaluating the trial court's decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not
      merely rely on his pleadings or answers in order to
      survive summary judgment. Failure of a non-moving party to
      adduce sufficient evidence on an issue essential to his case and
      on which he bears the burden of proof establishes the
      entitlement of the moving party to judgment as a matter of law.
      Lastly, we will review the record in the light most favorable to
      the nonmoving party, and all doubts as to the existence of a
      genuine issue of material fact must be resolved against the
      moving party.

Id. (citation omitted; emphasis added).

      Appellant first insists that the grant of summary judgment was infirm

because no motion for summary judgment “properly designated as such”

was filed.   We disagree for these reasons: 1) the motion in question was



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clearly labeled a joint motion for summary judgment; 2) the relief therein

expressly was sought pursuant to Pa.R.C.P. 1035.2 and 1035.3, which

govern a motion for summary judgment; and 3) the term “summary

judgment” is scattered throughout the document in question. In maintaining

that there was no summary judgment motion filed, Appellant focuses

singularly on the fact that the order appended to the summary judgment

motion requested a rule to show cause. However, any confusion caused by

the order would relate solely to whether an immediate response to the

motion was required.         Additionally, any prejudice to Appellant from the

order’s contents was cured when the trial court vacated entry of summary

judgment, without prejudice, on the very ground it now advances.            The

present grant of summary judgment was issued after Appellees renewed

their requested relief for summary judgment, and Appellant admitted, during

the pretrial conference, that it could not present a single witness to establish

the existence of damages. Accordingly, this first issue is meritless.

       Appellant’s second position is that summary judgment was improperly

granted since it did not have to prove the existence of any damages

whatsoever because the November 9, 2007 letter was defamatory per se.2

Appellant relies upon antiquated common law in advancing this assertion.

____________________________________________


2 Appellant does not claim on appeal that it did not have to prove the
existence of damages for purposes of its claim for intentional interference
(Footnote Continued Next Page)


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      As our Supreme Court outlined in Joseph v. Scranton Times L.P.,

129 A.3d 404, 424 (Pa. 2015), a cause of action in defamation is now

codified by statute, which provides that in a defamation lawsuit, plaintiff has

the burden of proving:

      (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) (emphasis added); see also Pilchesky v. Gatelli, 12

A.3d 430, 444 (Pa.Super. 2011) (citing Gertz v. Robert Welch, Inc., 418

U.S. 323 (1974) (while defamation per se is actionable without proof of

economic loss, “every defamation plaintiff must prove ‘actual harm,’” and

“[m]ore is required than a bald assertion that the defamatory statements

harmed plaintiff’s reputation in the social, civil, professional and political

community.”)).
(Footnote Continued) _______________________

with business relationships. Its argument on appeal pertains solely to the
defamation cause of action outlined in its complaint.



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     In Walker v. Grand Central Sanitation, Inc., 634 A.2d 237

(Pa.Super. 1993), we analyzed this precise issue, concluding that the

general assembly had abrogated the common law rule absolving a plaintiff in

a defamation per se action from proving actual harm, and we adopted

Restatement (Second) of Torts § 621, which provides, “One who is liable for

a defamatory communication is liable for the proved, actual harm caused to

the reputation of the person defamed.” The Walker Court articulated that

the Restatement of Torts

     exhibits a concern for the relative inability of courts to control the
     amount of damages awarded by juries under the common law. It
     therefore requires a victim of slander per se to make some
     showing of general damage, although she need not prove “special
     damage,” i.e., monetary or out-of-pocket loss borne by the
     defamation. See Restatement (Second) of Torts, § 573. One
     who is liable for a defamatory communication is liable for the
     proved, actual harm caused to the reputation of the person
     defamed. Id., § 621. A comment to this section indicates that
     proof of actual damage is a requirement for all slander actions;
     the only difference between actions which are per se and those
     which are actionable only upon proof of an “innuendo” is that in
     per se cases a plaintiff need not establish pecuniary or economic
     loss. Id. Under the Second Restatement, a plaintiff in a slander
     per se case must show “general damages”: proof that one's
     reputation was actually affected by the slander, or that she
     suffered personal humiliation, or both.

           In Pennsylvania, our legislature seemingly abrogated the
     common law rule of truly “presumed damage” when it codified
     the prerequisites for recovering in a defamation action. 42
     Pa.C.S.A. § 8343.

Id. at 241–42.




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      Accordingly, Appellant incorrectly maintains that it did not have to

prove the existence of any harm because the letter in question accused it of

engaging in misconduct or fraud in marketing living trusts to senior citizens.

While it did not have to establish economic loss, it did have to adduce some

proof that its business reputation was affected by the communication.

Appellant admitted to the trial court that it could present no witness to attest

that its reputation in the community was harmed due to the dissemination of

the correspondence in question. Since Appellant had the burden of proving

that aspect of its defamation cause of action, summary judgment was

properly entered herein.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/14/2018




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