J-S33031-20

                                   2020 PA Super 190


    JAMIYLAH BURNS                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BLAKELEY COOPER                            :
                                               :
                       Appellant               :   No. 2571 EDA 2019

              Appeal from the Judgment Entered November 1, 2019
      In the Court of Common Pleas of Montgomery County Civil Division at
                              No(s): 2016-11905


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED AUGUST 11, 2020

        Appellant, Blakeley Cooper, appeals from the November 1, 2019,

judgment entered upon a jury verdict in favor of Appellee, Jamiylah Burns, in

this case for defamation and tortious interference with contract. 1    After a

careful review, we affirm.


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 We note Appellant purported to appeal from the August 5, 2019, order
denying his post-trial motion; however, he subsequently filed a praecipe for
the entry of judgment. The docket reflects the prothontary entered judgment
in favor of Appellee on November 1, 2019. 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.” Pa.R.A.P. 905(a)(5). See K.H. v. J.R., 573 Pa. 481, 826 A.2d 863
(2003). As such, we deem the appeal in the case sub judice to be properly
taken from the subsequently entered judgment.
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       The relevant facts and procedural history are as follows: On August 15,

2014, Appellant filed a divorce complaint against Appellee. On December 5,

2015, while the divorce matter was pending, Appellee decided to visit her

father, who lived in Washington D.C. Concerned about the safety of her

jewelry and other valuables, including a Louis Vuitton baby bag, Appellee

removed the items from her home and put them in her car.2

       While her car was parked outside of her father’s house, someone

smashed the car window and stole the jewelry, Louis Vuitton baby bag, and

other personal items.         Appellee immediately contacted the police, who

prepared a report in connection with the incident.

       Appellee submitted an insurance claim to Erie Insurance Company

(“Erie”) in connection with the loss. The initial processing of the claim was

assigned to Kathy Riser, a representative of Erie, and the claim appeared to

proceed in a routine manner. However, because the insurance policy was in

the names of both Appellant and Appellee, Erie required Appellant to join in

the claim, and, thus, Ms. Riser contacted Appellant via telephone on January

18, 2016, at 9:54 a.m. Ms. Riser’s notes of the call read as follows:

              Spoke to [Appellant].




____________________________________________


2 Appellee testified that, during this time, the divorce was not amicable, but
she and Appellant were living in the same house. N.T., 6/18/19, at 37-38.
She testified she began putting valuable items in her car out of concern that
Appellant might remove them from the marital home. Id. at 39.

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              [Appellant] stated he does not believe this incident
              occurred, therefore he will not be signing the claim
              forms[.]
              He stated that she does not have a Luis Vutton [sic]
              bag, but it is a baby bag[.]
              He finds it hard to believe that she left such high value
              items in the car.

Trial Court Opinion, filed 1/17/20, at 2 (citations to record omitted).

       Shortly after this call, at 10:00 a.m., Ms. Riser referred Appellee’s claim

to Erie’s Investigative Services Section (“ISS”), which has the responsibility

of investigating whether an insurance claim involves fraud. Thereafter, Mark

Carlin, who was an Erie ISS investigator, contacted Appellee and requested

that she meet with him in his office in Media, Pennsylvania, to review the facts

surrounding her insurance claim. Appellee agreed and met with Mr. Carlin.

       During the meeting, Appellee discovered Mr. Carlin was a fraud

investigator. Appellee, who held a physical therapist license, became

concerned that she was being investigated for fraud.

       On June 13, 2016, Appellee filed a civil complaint, which she later

amended on August 1, 2016. In her amended complaint, as to Appellant,

Appellee presented claims of defamation and tortious interference with

contract.3

____________________________________________


3 Appellee also included Erie Indemnity Company, d/b/a/ Erie Insurance
Company, as a defendant, and she presented claims of breach of contract and
bad faith. However, thereafter, Erie made payment on Appellee’s insurance
claim, and all claims between Appellee and Erie have been either dismissed or
settled.

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       With regard to her defamation claim, Appellee specifically alleged

Appellant made false statements to Erie representatives indicating Appellee

filed a fraudulent insurance claim.            Appellee averred her reputation was

damaged by Appellant’s false statements, which suggested Appellee had

committed the crime of insurance fraud.

       With regard to her tortious interference with contract claim, Appellee

averred Appellant’s intentional false defamatory statements, which he made

to Erie representatives, interfered with her insurance contract with Erie.

       On August 18, 2016, Appellant filed an answer with new matter and a

counterclaim in which he presented against Appellee a claim of abuse of

process, and Appellee filed an answer thereto.4

       On July 16, 2018, Appellant filed a motion for summary judgment, as

well as a brief in support thereof, and on August 15, 2018, Appellee filed an

answer in opposition to the motion for summary judgment.5             Additionally,

Appellee filed a motion for summary judgment as to Appellant’s counterclaim.

       By order entered on October 30, 2018, the trial court denied Appellant’s

motion for summary judgment; however, the trial court granted Appellee’s


____________________________________________


4 Appellant amended his new matter and counterclaim several times in
response to Appellee filing preliminary objections.

5 As will be discussed in detail infra, in support of her opposition to Appellant’s
motion for summary judgment, Appellee pointed to Appellant’s deposition
testimony wherein Appellant admitted he told an Erie representative that
Appellee “was a liar who could not be trusted.” See Appellee’s Motion in
Opposition to Summary Judgment, filed 8/15/18, at Exhibit C.

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J-S33031-20


motion for summary judgment and dismissed Appellant’s counterclaim for

abuse of process.       Thereafter, the matter proceeded to a jury trial as to

Appellee’s claims of defamation and tortious interference with contract against

Appellant.

       At the conclusion of the jury trial, on June 20, 2019, the jury answered

“Yes” to the question of whether Appellant was liable to Appellee for

defamation, as well as to the question of whether Appellant was liable to

Appellee for tortious interference with contract.     The jury then awarded

Appellee $55,000.00 in compensatory damages.            Additionally, the jury

answered “Yes” to the question of whether Appellant’s conduct was so

outrageous as to entitle Appellee to punitive damages. The jury then awarded

Appellee $20,000.00 in punitive damages.

       On July 3, 2019, Appellant filed a post-trial motion,6 and by order

entered on August 5, 2019, the trial court denied Appellant’s post-trial motion.

This appeal followed on August 28, 2019. On September 4, 2019, the trial

court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant

complied on September 24, 2019. On November 1, 2019, upon praecipe of

Appellant, the prothontary entered judgment in favor of Appellee and against



____________________________________________


6 We note the trial court expressly granted Appellant permission to file a post-
trial motion no later than July 3, 2019. See Lenhart v. Cigna Companies,
824 A.2d 1193, 1198 (Pa.Super. 2003) (“[T]he decision to allow the filing of
post-trial motions nunc pro tunc is vested in the sound discretion of the trial
court.”) (citation omitted)).

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Appellant in the amount of $75,000.00. On January 17, 2020, the trial court

filed a Pa.R.A.P. 1925(a) opinion.

      On appeal, Appellant sets forth the following sole issue in his “Statement

of Questions Involved” (verbatim):

             In an action alleging defamation, trial is authorized if the
      trial court determines, before trial, as a matter of law, that the
      statement at issue is capable of a defamatory meaning. Is it
      permissible for the trial court to do the opposite: not make such
      determination; have the case go to trial (without such
      determination); and then have such determination made by the
      jury, after trial?

Appellant’s Brief at 4 (suggested answer omitted).

      Appellant contends the trial court was required to determine before trial,

and as a matter of law, whether any statements made by Appellant were

capable of a defamatory meaning. See Appellant’s Brief at 21, 27, 29. He

avers the trial court “shirked” its duty by failing to render a ruling prior to trial

in this regard and permitting the jury, in the first instance, to determine

whether the statements were capable of a defamatory meaning. Id. at 30-

31.   Additionally, Appellant suggests that, to the extent the trial court

attempted to “cure” its error by asserting in its Pa.R.A.P. 1925(a) opinion that

Appellant’s statements were capable of a defamatory meaning, the court’s

attempt was improper since such a determination must be made by the trial

court before the commencement of trial. Id. at 35. After a careful review,

we conclude Appellant has mischaracterized the record and the trial court’s

rulings in the case sub judice.


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J-S33031-20


      Initially, for background purposes, we note the following relevant legal

principles:

      The requirements of a defamation claim are codified as follows:

      (a) Burden of plaintiff.—In an action for defamation, the
      plaintiff has the burden of proving, when the issue is properly
      raised:
      (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.
      (b) Burden of defendant.—In an action for defamation, the
      defendant has the burden of proving, when the issue is properly
      raised:
      (1) The truth of the defamatory communication.
      (2) The privileged character of the occasion on which it was
      published.
      (3) The character of the subject matter of defamatory comment
      as of public concern.

42 Pa.C.S.A. § 8343 (bold in original).

      Further, as it relates specifically to the defamatory character of the

communication, as Appellant correctly contends, this Court has relevantly held

the following:

            Whether the challenged statements are capable of having a
      defamatory meaning is a question of law for the court to
      determine in the first instance. “A statement is defamatory if it
      tends to harm an individual’s reputation so as to lower h[er] in the


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J-S33031-20


      estimation of the community or deter third persons from
      associating or dealing with h[er].”
            Pennsylvania courts have held that certain types of
      communications, although undoubtedly offensive to the subject,
      do not rise to the level of defamation. For example, expressions
      of opinion are not actionable. Likewise, statements which are
      merely annoying or embarrassing or “‘no more than rhetorical
      hyperbole’” or “‘a vigorous epithet’” are not defamatory.

Kryeski v. Schott Glass Technologies, Inc., 626 A.2d 595, 600-01

(Pa.Super. 1993) (internal citations and quotations omitted). See Baker v.

Lafayette College, 516 Pa. 291, 532 A.2d 399, 402 (1987) (“In order for a

statement to be considered libelous or slanderous, the trial court must, in the

first instance, make a determination as to whether the communication

complained of can be construed to have the defamatory meaning ascribed to

it by the complaining party.”) (citation omitted)); Kuwait & Gulf Link

Transport Company v. Doe, 216 A.3d 1074 (Pa.Super. 2019) (holding that

in ruling upon a summary judgment motion the issue of whether a statement

is capable of a defamatory meaning is an issue for the trial court to decide as

a matter of law).

      In the case sub judice, in his motion for summary judgment, Appellant

averred that Appellee failed to set forth a prima facie case as to defamation

and, further, that there was no genuine issue of material fact such that

Appellant was entitled to summary judgment as a matter of law. Moreover,

in his brief attached to his summary judgment motion, Appellant specifically




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J-S33031-20


argued Appellee failed to set forth a prima facie case that any statements

made by Appellant were capable of a defamatory meaning.

      By order entered on October 30, 2018, the trial court held that “[t]he

Motion for Summary Judgment of [Appellant] is DENIED.” Trial Court Order,

filed 10/30/18, at 2 (bold omitted). Additionally, the trial court specifically

noted the following:

             Counts I and II of [Appellee’s] Amended Complaint are
      brought against [Appellant] for defamation and tortious
      interference with contract, on the basis that [Appellant] made
      statements to an Erie representative casting doubt on the validity
      of her insurance claim. Those statements include that [Appellee]
      “was a liar who could not be trusted.” ([Appellant’s] Dep., at 65[;]
      [Appellee’s] Response to [Appellant’s] Mot. for Summary Jt., Ex.
      C). [Appellant] argues that the statement was not defamatory,
      that it was protected by privilege, and that [Appellee] fails to show
      damages. To the contrary, the statement that someone is a liar
      is, “‘as a matter of law, capable of defamatory meaning.” Smith
      v. Wagner, 588 A.2d 1308, 1311 (Pa.Super. 1991)….[Appellant]
      fails to identify any recognized privilege that would apply to this
      case.

Trial Court Order, filed 10/30/18, at 2 n.3.

      Based on the aforementioned, as is evident, contrary to Appellant’s

assertion, the trial court 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. See

id.   The trial court answered the issue affirmatively prior to trial, and

therefore, contrary to Appellant’s assertion, there is no evidence the trial court

“shirked” its duty in this regard. The trial properly confirmed as much in its

Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, filed 1/17/20, at 5 n.6

                                      -9-
J-S33031-20


(“[T]he Court did determine that [Appellant’s] statements were capable of a

defamatory meaning before submitting the jury the question [of] whether the

statements were defamatory.”) (citations to record omitted)). Consequently,

there is no merit to Appellant’s claim.7

       This does not end our inquiry, however, as Appellant additionally

contends that, assuming, arguendo, the trial court properly ruled the

statement at issue was capable of a defamatory meaning, the evidence offered

at trial was insufficient to sustain the jury’s verdict since Appellee failed to

prove “the statement’s recipient—the insurer--understood the statement to

have a defamatory meaning.”8 Appellant’s Brief at 35 (bold omitted).

____________________________________________


7 As indicated supra, in denying Appellant’s motion for summary judgment,
the trial court determined Appellant’s statement that Appellee “was a liar who
could not be trusted” was capable of a defamatory meaning as a matter of
law. To the extent Appellant suggests on appeal the trial court erred in this
regard, we disagree. It is well-settled that statements that a person is a liar
are capable of a defamatory meaning as a matter of law. See Smith, supra.
Further, statements implicating a person committed a crime, as could be
inferred from Appellant’s statement in the context at issue, are capable of a
defamatory meaning as a matter of law. See Brown v. Philadelphia
Tribune Co., 668 A.2d 159 (Pa.Super. 1995). Accordingly, the trial court
properly denied Appellant’s summary judgment motion on this basis. See
Nicolaou v. Martin, 649 Pa. 227, 195 A.3d 880, 891 (2018) (“Summary
judgment is appropriate [only in] cases where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of
law.”) (citation omitted)).

8 Appellant sufficiently presented this claim in his post-trial motion and
Pa.R.A.P. 1925(b) statement. We note with displeasure, however, that
Appellant neither included this issue within his “Statement of Questions
Involved” nor in a separately headed argument section of his appellate brief.
See Pa.R.A.P. 2116, 2119. However, since Appellant’s briefing failures do not



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J-S33031-20


Accordingly, Appellant suggests he is entitled to judgment notwithstanding

the verdict (“judgment n.o.v.”) as to Appellee’s defamation claim.

              Our standard of review of an order denying judgment n.o.v.
       is whether, reading the record in the light most favorable to the
       verdict winner and granting the benefit of every favorable
       inference, there is sufficient competent evidence to support the
       verdict. Any conflict in the evidence must be resolved in the
       verdict winner’s favor. Judgment n.o.v. may be granted only in
       clear cases where the facts are such that no two reasonable minds
       could fail to agree that the verdict was improper.

Tillery v. Children's Hospital of Philadelphia, 156 A.3d 1233, 1239-40

(Pa.Super. 2017) (quotation omitted). We will disturb a trial court’s grant or

denial of judgment n.o.v. “only for an abuse of discretion or an error of law.”

Quinby v. Plumsadville Family Practice, Inc., 589 Pa. 183, 907 A.2d

1061, 1074 (2006) (citation omitted).

       As indicated supra, “the threshold question in an action for defamation

is whether the communication at issue is capable of a defamatory meaning.

It is for the court in the first instance to make this determination[.]” Agriss

v. Roadway Exp., Inc., 483 A.2d 456, 461 (Pa.Super. 1984). Thereafter, if

the trial court concludes the statement is capable of a defamatory meaning,

it is then for the jury, as the finder of fact, to determine whether it was so

understood by the recipient. Id.

            [To be defamatory the] communication [must] tend[] to so
       harm another’s reputation as to lower h[er] in the estimation of
____________________________________________


impede our meaningful review in this case, we shall review the merits of the
issue as presented in the argument portion of his brief.


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J-S33031-20


      the community or deter third persons from associating or dealing
      with h[er]. To be defamatory, these words must have been
      understood by the ‘recipient correctly, or mistakenly but
      reasonably,’ to mean what the defamed party asserts they were
      understood to mean.

Baird v. Dun and Bradstreet, 446 Pa. 266, 285 A.2d 166, 169 (1971)

(citations omitted).   With regard to the latter, the “nature of the audience

hearing the remarks is a critical factor[.]” Maier v. Maretti, 671 A.2d 701,

704 (Pa.Super. 1995) (citation omitted).

      In the case sub judice, viewing the evidence in the light most favorable

to Appellee, the verdict winner, we conclude the jury could reasonably find

that the recipients of Appellant’s statement understood the statement to be

defamatory in nature.

      For instance, Appellant admitted that, although he had no first-hand

knowledge of the situation, he was a policyholder in the instant matter and

informed an Erie representative that he believed the incident as alleged by

Appellee did not occur. N.T., 6/19/19, at 102. He admitted that he was aware

that, if Appellee filed a claim for a loss, and the loss did not occur, the claim

would be considered dishonest. Id. at 108. Further, after being confronted

with his deposition testimony, Appellant admitted at trial that he informed an

Erie representative that Appellee “was a liar who could not be trusted[.]” Id.

at 111-12.

      Moreover, Carl Gremminger, an Erie property claim supervisor, admitted

Erie delayed paying Appellee’s insurance claim and conducted a full fraud


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investigation   because    of   statements    made   by    Appellant   to   Erie

representatives.   Id. at 78, 86-87.    As indicated supra, such statements

included Appellant’s statement that Appellee “was a liar who could not be

trusted.” Id. at 111-12.

      Here, Appellant made his statement that Appellee “was a liar who could

not be trusted” to an Erie representative, who had contacted him in connection

with Appellee’s insurance claim. In response to Appellant’s statement, Erie

conducted a full investigation into whether Appellee’s claim was fraudulent in

nature.

      We conclude the jury could reasonably find that the defamatory

meaning of Appellant’s statement was understood by Erie representatives.

See Krolczyk v. Goddard Systems, Inc., 164 A.3d 521 (Pa.Super. 2017)

(holding statement ascribing to the plaintiff the commission of a crime

constitutes defamation); Smith, 588 A.2d at 1311 (finding statements a

person is a liar, thief, or “crook” are defamatory in nature); Agriss, supra

(holding statement published to employee’s supervisor and co-workers

concerning plaintiff’s opening of company mail was defamatory because it

implied to them that the plaintiff had committed a crime). Accordingly, the

trial court did not err in denying Appellant’s request for judgment n.o.v. as to

defamation.

      Finally, we note Appellant contends that, assuming, arguendo, the

evidence was sufficient to support the jury’s verdict for defamation, there is


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insufficient evidence to sustain the jury’s verdict for tortious interference with

contact.9    In this vein, Appellant avers that, since Erie paid Appellee’s

insurance claim, there is no evidence that his defamatory statement caused

Appellee any actual damage. Accordingly, Appellant suggests he is entitled to

judgment n.o.v. as to Appellee’s tortious interference with contract claim.10

              We have explained that a party is liable for pecuniary loss
       due to tortious interference with a contractual relationship when
       the party “intentionally and improperly interferes with the
       performance of a contract (except a contract to marry) between
       another and a third person by inducing or otherwise causing the
       third person not to perform the contract....” Walnut St. Assoc.,
       Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 98 (Pa.Super.
       2009), aff'd, 610 Pa. 371, 20 A.3d 468 (2011)….[The] elements
       of tortious interference with a contractual relationship…are as
       follows:
              (1) [T]he existence of a contractual relationship
              between the complainant and a third party; (2) an
              intent on the part of the defendant to harm the
              plaintiff by interfering with that contractual
              relationship; (3) the absence of privilege or
____________________________________________


9  Appellant sufficiently presented this claim in his post-trial motion and
Pa.R.A.P. 1925(b) statement. We note with displeasure, however, that
Appellant neither included this issue within his “Statement of Questions
Involved” nor in a separately headed argument section of his appellate brief.
See Pa.R.A.P. 2116, 2119. However, since Appellant’s briefing failures do not
impede our meaningful review in this case, we shall review the merits of the
issue as presented in the argument portion of his brief.

10 He also suggests that, assuming, arguendo, the evidence was insufficient
to sustain the jury’s verdict for defamation the evidence was likewise
insufficient to sustain the jury’s verdict for tortious interference with contract,
which was based upon the alleged false and defamatory character of the
communication complained of. Accordingly, Appellant seeks judgment n.o.v.
as to Appellee’s tortious interference with contract claim on this basis as well.
As indicated supra, we find no merit to Appellant’s challenges to the jury’s
verdict regarding defamation, and therefore, we need not address this claim
further.

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            justification on the part of the defendant; and (4) the
            occasioning of actual damage as a result of
            defendant’s conduct.

Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 932-

33 (Pa.Super. 2013) (quotation and citation omitted).

      Here, viewing the evidence in the light most favorable to the verdict

winner, Appellee, we conclude the jury could reasonably find Appellee suffered

“actual   damage”   as   a   result   of   Appellant’s    defamatory    statement,

notwithstanding the fact Erie eventually paid out on Appellee’s insurance

claim.

      For instance, Mr. Gremminger testified Erie delayed paying on Appellee’s

insurance claim and conducted a full fraud investigation due to Appellant’s

statements, which included the statement Appellee was “a liar who could not

be trusted.”   N.T., 6/19/19, at 78, 86-87.       As part of this investigation,

Appellee was required to drive “fairly far” to Media, Pennsylvania, to meet with

Mr. Carlin. Id. at 49.

      Further, Appellee testified that, after the meeting with Mr. Carlin, she

retained counsel to protect her interests with respect to her claim, which she

made under her insurance policy. Id. at 52-53.           She noted that, as part of

Erie’s fraud investigation into her claim, she had to produce documents

“repeatedly,” make several telephone calls, sit for a deposition at the behest

of Erie, meet often with her attorney, and complete a questionnaire. Id. at




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54-55. These efforts resulted in her taking time off from work and losing

approximately $15,000.00 in income. Id. at 61.

       Moreover, she noted the attorney’s fees she incurred during Erie’s fraud

investigation    (which   occurred    in   response     to   Appellant’s   defamatory

statement) were triple the amount of the loss she claimed under her insurance

policy for the stolen items.       Id. at 57-58.    Appellee testified Erie did not

conclude her claimed loss under the policy was legitimate until after she spent

more    than     $40,000.00   in   attorney’s    fees   in   connection    with   Erie’s

investigation.     Id. at 58-59.     Further, Erie did not actually pay out on

Appellee’s insurance claim under her policy until after Appellee filed the instant

civil complaint in which she named Erie as a defendant.

       Based on the aforementioned, we conclude the evidence sufficiently

supports the jury’s verdict that Appellee demonstrated actual damage

resulting from Appellant’s defamatory statement as is necessary for tortious

interference with contract. See Empire Trucking Co., supra. Accordingly,

we find no merit to his claim that the trial court erred in denying his request

for judgment n.o.v. as to Appellee’s claim of tortious interference with

contract.

       For all of the foregoing reasons, we affirm.

       Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




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