J-A11020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CATHERINE M. DUSMAN                        :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH O. PADASAK, JR.                     :   No. 1746 MDA 2017

               Appeal from the Order Entered October 11, 2017
    In the Court of Common Pleas of Franklin County Civil Division at No(s):
                                 2013-4009


BEFORE:      STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 24, 2018

        Appellant Catherine M. Dusman appeals from the order granting

Appellee Joseph O. Padasak, Jr.’s motion for summary judgment and

dismissing her action against Appellee for defamation and other claims.

Appellant asserts that the trial court erred in determining that the record

lacked adequate evidence to submit the case to a jury and by improperly

weighing evidence to determine that Appellee’s communications could not

have been interpreted as defamatory. Appellant also claims that the trial court

erred in determining that Appellee’s statements were not defamatory per se

and that she had to prove damages. We affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        During the relevant time frame in the 2012-2013 school year, Appellant

was an assistant superintendent in the Chambersburg Area School District

(CASD) and Appellee was the superintendent of CASD.1 Appellant alleges that

Appellee had a conversation with three elementary principals who typically

reported to Appellant. Appellee indicated that Appellant did not have a current

commission as an assistant superintendent and that an audit revealed this

fact.    Appellee further told the principals that Appellant would not be in a

supervisory position until her commission was up to date. Appellee also stated

that CASD could be fined and that Appellant could be fired. In addition to his

conversation with the principals, Appellant alleges that Appellee made similar

statements to the president of the teachers’ association and two former

assistant superintendents.

        Appellant further alleges that Appellant and another CASD administrator

had interviewed to become superintendent of Tuscarora School District (TSD).

Some time after their interviews, Appellee had a conversation with the school

board president of TSD about a project involving standards-based report

cards. According to Appellant, both Appellant and the other candidate took

credit for the project during their interviews, but Appellee later told the TSD

board president that Appellant lied about being in charge of the project.2


____________________________________________


1   We state the facts in the light most favorable to Appellant.

2 Phillip Miracle, a former CASD board member, testified at a deposition that
a conversation between Appellee and the TSD board president took place.

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       Appellant initially filed a complaint on August 25, 2014, with the

following counts:

          Count 1: Defamation, based upon conversations with the
          principals, the president of the teachers’ association, and the
          former assistant superintendents.

          Count 2: Defamation, based upon the conversation with the
          TSD school board president.

          Count 3: False Light, alleging that Appellee used information
          about Appellee’s lack of commission to cast Appellant in a false
          light to the principals, the president of the teachers’
          association, and the former assistant superintendents.

          Count 4: Violation of Constitutional Right of Privacy, based
          upon informing a reporter of details of Appellant’s “demotion.”3

          Count 5: Intentional Infliction of Mental Distress, based upon
          Appellee’s allegedly extreme and outrageous conduct that
          produced anxiety, sleeplessness, high blood pressure, and
          family strain requiring ongoing medical treatment and
          medication for Appellant for approximately one year.

See Compl., 8/25/14, at 2-7 (unpaginated).

       Appellee removed the action to federal court. Appellant then filed an

amended complaint to exclude references to federal constitutional rights. In

response to Appellee’s motion for remand, the district court thereafter held

that Appellant’s action only implicated state law claims and transferred the

matter back to the court of common pleas.

____________________________________________


3 In support of count 4, Appellant asserted that Appellee invited a reporter to
her mid-year review in February 2013. Appellee took the reporter to lunch
immediately after the review and informed the reporter of plans to “demote”
Appellant.




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       Following the transfer from the district court, Appellee filed preliminary

objections.4 The trial court sustained the preliminary objections in part and

dismissed count 4 and overruled the preliminary objections as to the

remaining counts.5 Order, 5/21/15.

       Appellee filed an answer and new matter, in which he raised the statute

of limitations and argued that Appellant’s claims are barred by consent and

estoppel. Answer and New Matter, 6/16/15, at ¶¶ 42-44. Appellee also raised

immunity and the truth of the statements as defenses. See id. at ¶¶ 46, 50.

Appellant filed a reply to the new matter.

       Discovery followed, during which the three principals and two former

assistant superintendents submitted affidavits, and Appellant, Appellee, and

the TSD board president were deposed. Appellant indicated in her deposition

that she suffered damages based upon the “unbelievable treatment” she had

endured. Dep. of Catherine M. Dusman, 10/25/16, at 70.




____________________________________________


4 Appellee argued that counts 1, 2, 3, and 5 should be dismissed pursuant to
Pa.R.C.P. 1028(a)(4) because Appellee had immunity from tort claims. See
Prelim. Objs., 10/28/14, at ¶ 15. Appellee also asserted that count 4 should
be dismissed under Pa.R.C.P. 1028(a)(3) and (a)(4) because the count lacked
specificity and sufficiency and monetary damages were unavailable under that
claim. See id. at ¶¶ 68-70, 75-77.

5 Appellee attempted to have the order certified as immediately appealable
based on his immunity issue, but the trial court declined. See Mot. for
Certification for an Interlocutory Appeal by Permission, 6/22/15. Appellee
thereafter filed a petition for review in the Commonwealth Court, which was
denied on September 4, 2015. See Order, 9/4/15.


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       Appellee filed a motion for summary judgment on all remaining counts.

In relevant part, Appellee asserted that Appellant failed to establish her

defamation claims (counts 1 and 2) because: (1) it was true that Appellant

did not have a commission; (2) three principals and two former assistant

superintendents did not remember Appellee discussing (a) Appellant’s lack of

commission was discovered in an audit, (b) Appellant could be fired, or (c)

CASD could be fined; (3) there was no evidence regarding a conversation with

the teachers’ association president other than Appellee admitting he

mentioned a lack of commission to her; and (4) the TSD board president

indicated that he did not have a conversation with Appellee about Appellant

until after the board made its decision to not consider Appellant for the

superintendent position. See Mem. of Law in Supp. of Mot. for Summ. J.,

4/21/17, at 3-4, 6-8. Additionally, Appellee asserted that Appellant failed to

establish that she suffered special harm as a result of the publication of the

allegedly defamatory statements. Id. at 13.

       In response, Appellant argued that summary judgment was improper

because     Appellee     relied   on   affidavits   and   deposition   testimony   in

contravention of Nanty-Glo.6           See Brief in Opp’n to Mot. for Summ. J.,

____________________________________________


6 Borough of Nanty-Glo v. American Surety Co. of New York, 163 A. 523
(Pa. 1932). Nanty-Glo holds that without more, “testimonial affidavits of the
moving party or his witnesses, not documentary, even if uncontradicted, will
not afford a sufficient basis for the entry of summary judgment.” Larsen v.
Philadelphia Newspapers, Inc., 602 A.2d 324, 333 (Pa. Super. 1991)
(citing Nanty-Glo, 163 A. at 524).


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7/10/17, at 2. According to Appellant, genuine issues of material fact existed

based on Appellee’s admissions that he told others that Appellant “could be

fired,” even after he knew she would not be fired, as well as Appellee’s failure

to deny the statements to the two former assistant superintendents and the

president of the teachers’ association. Id. at 4-6. Appellant also noted that

that Appellee admitted to having a conversation with the board president of

TSD. Id. at 5-6. Appellant further argued that she did not have the burden

of proving special harm because Appellee’s statements were defamatory per

se and related to her fitness to conduct her profession. Id. at 7.

      Following oral argument, the trial court granted summary judgment

against Appellant as to all remaining counts and dismissed her action.

Appellant filed a timely notice of appeal, and Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises three issues on appeal:

      1. Whether the trial court erred as a matter of law in determining
         that the record lacked sufficient evidence such that a jury could
         find in [Appellant]’s favor, by failing to view the evidence in
         light most favorable to the non-moving party, and by using
         third party affidavits to disregard [Appellee]’s admitted
         statements, which are capable of a defamatory meaning.

      2. Whether the trial court usurped the role of the jury by weighing
         evidence to determine that [Appellee]’s communications could
         have not have a defamatory meaning.

      3. Whether the trial court erred, as a matter of law, by
         determining that [Appellee]’s statements were not defamatory
         “per se” and that [Appellant] was required to prove actual,
         special, or general damages, where [Appellee]’s statements
         imputed shortcomings in [Appellant]’s profession and calling.


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J-A11020-18



Appellant’s Brief at 5.7

       Appellant’s first two issues are closely related, and we address them

together. Appellant asserts that in Appellee’s answer, Appellee “admits [that

he told the three principals] that, without a commission, there was a legal

question whether [Appellant] could supervise principals and that the school

district could possibly be fined because she lacked a commission.            These

statements are judicial admissions for the purposes of this action[.]”

Appellant’s Brief at 13. According to Appellant, Appellee “testified that he told

these principals that [Appellant] ‘could’ be fired, not that she ‘should’ be fired

because she lacked a commission. He told the principals this, although he

never disclosed a prior decision not to fire her.” Id. at 14. Appellant also

asserts that Appellee did not “specifically admit or deny that he made ‘similar’

or ‘almost identical statements’ to [the teachers’ association president and the

two former assistant principals].” Id. at 15 n.1.

       According to Appellant,

       [t]hat, at the time, [Appellant] had no commission is a fact. No
       defamation arises out of such a statement alone. However, when
       [Appellee] stated that there was a legal question whether she
       could supervise principals and that her employer, the school
       district, could be fined because of her lack of commission, he
       defamed her by stating things that were not true. His admission
       conclusively establishes that [Appellee] published the statements,
       that the statements applied to [Appellant], and that the recipients
       knew the statements applied to [Appellant].”
____________________________________________


7 Appellant does not challenge the trial court’s ruling regarding her claims of
false light (count 3) and intentional infliction of mental distress (count 5).



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J-A11020-18



Appellant’s Brief at 15 (citing 42 Pa.C.S. § 8343(a)(2), (3), (5)).

      Appellant also asserts that the trial court “never examined [Appellee’s]

statements according to [the] standard [of whether they were capable of

defamatory meaning].” Id. at 17. “Instead, the trial court immediately used

the affidavits produced by [Appellee from the various individuals involved] to

assess the impact these statements had on the hearers and how the

statements may have injured [Appellant].” Id. According to Appellant, the

use of these affidavits was insufficient to establish the absence of a genuine

issue of material fact under Nanty-Glo. Id. at 22-24. Essentially, Appellant

argues that the trial court failed to analyze whether the character of the

communications was defamatory and instead improperly analyzed whether

the recipients understood the communications to be defamatory.

      Our scope and standard of review following the grant of summary

judgment follows:

      A proper grant of summary judgment depends upon an
      evidentiary record that either (1) shows the material facts are
      undisputed or (2) contains insufficient evidence of facts to make
      out a prima facie cause of action or defense. Under Pa.R.C.P.
      1035.2(2), if a defendant is the moving party, he may make the
      showing necessary to support the entrance of summary judgment
      by pointing to materials which indicate that the plaintiff is unable
      to satisfy an element of his cause of action. Correspondingly, the
      non-moving party must adduce sufficient evidence on an issue
      essential to its case and on which it bears the burden of proof such
      that a jury could return a verdict favorable to the non-moving
      party.

      Thus, a plaintiff’s failure to adduce evidence to substantiate any
      element of his cause of action entitles the defendant to summary
      judgment as a matter of law. As with all questions of law, our
      scope of review of a trial court's order granting summary

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J-A11020-18


     judgment is plenary. Our standard of review is the same as that
     of the trial court; we must review the record in the light most
     favorable to the non-moving party granting her the benefit of all
     reasonable inferences and resolving all doubts in her favor. We
     will reverse the court’s order only where the appellant . . .
     demonstrates that the court abused its discretion or committed
     legal error.

Lewis v. Philadelphia Newspapers, Inc., 833 A.2d 185, 190 (Pa. Super.

2003) (citations, brackets, and quotation marks omitted). We may affirm the

trial court’s ruling on any basis apparent in the record. Mariner Chestnut

Partners, L.P. v. Lenfest, 152 A.3d 265, 277 (Pa. Super. 2016).

     In a defamation action, the plaintiff has the burden of proof regarding

the following elements:

     (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.

Lewis, 833 A.2d at 191 (citing 42 Pa.C.S. § 8343).

     “Whether a communication can be construed to have a defamatory

meaning is a question of law for the court to determine.”       Cashdollar v.

Mercy Hosp. of Pittsburgh, 595 A.2d 70, 75 (Pa. Super. 1991).              A

communication is considered to be defamatory




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J-A11020-18


       if it ascribes to another conduct, character or a condition that
       would adversely affect his fitness for the proper conduct of his
       proper business, trade or profession. Additionally, the court
       should consider the effect the statement would fairly produce, or
       the impression it would naturally engender, in the minds of
       average persons among whom it is intended to circulate.

Constantino v. Univ. of Pittsburgh, 766 A.2d 1265, 1270 (Pa. Super. 2001)

(citations and internal quotation marks omitted). Moreover, “[t]he defendant

can defend against an action in defamation by proving that the [allegedly]

defamatory communication was true[.]” Spain v. Vicente, 461 A.2d 833,

836 (Pa. Super. 1983) (citing 42 Pa.C.S. § 8343(b)).

       Constantino was a defamation case involving letters that alleged that

the plaintiff engaged in conduct that made her unfit for her job as a clinical

instructor.8 Constantino, 766 A.2d at 1270. The letters were directed to “a

particular audience” whose duties involved evaluating employees in teaching

roles. Id. In affirming the trial court’s dismissal of the complaint, based on

its assessment that the contents of the letters were incapable of defamatory

meaning, this Court stated that “this audience would not as likely be affected

by any derogatory inference in the letters as might the public at large.” Id.

(citation omitted). Additionally, “while the letters did not specify the precise
____________________________________________


8 The plaintiff’s conduct included several incidents that were “problematic for
the operation of [] inpatient units” in a healthcare facility owned and operated
by the University of Pittsburgh Medical Center. Constantino, 766 A.2d at
1267.    Additionally, there were “problems with [the plaintiff’s] clinical
teaching.” Id. We acknowledge Constantino arose from the procedural
posture of a review from an order sustaining preliminary objections, unlike
the instant motion for summary judgment. Id.



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J-A11020-18



nature of [the plaintiff’s] alleged problems, without rampant speculation

nothing in the letters could be considered capable of disgracing [the plaintiff]

by lowering her reputation among the letters’ recipients or deterring them

from associating with her.” Id. at 1270-71.

      By way of background to this claim, Appellee admitted to making most

of the statements alleged, but denied making any false statements.           See

Answer and New Matter, 6/16/15, at ¶¶ 6-8, 20.

      In paragraph six of his Answer, Appellee admits that

      in October 2012 . . . [Appellee] informed . . . three elementary
      school principals under the supervision of [Appellant] that an audit
      had uncovered that [Appellant] did not, at that time, have a
      Commission from the Pennsylvania Department of Education to
      serve as an Assistant Superintendent for [CASD]. . . . [Appellee]
      told the three elementary school principals that because
      [Appellant] did not have a Commission, . . . there was a legal
      question as to whether [Appellant] could continue to supervise
      [them]. [Appellee] told the three elementary principals that
      [CASD] could possibly be fined because [Appellant] did not have
      a Commission[.]

Id. at ¶ 6. At his deposition, Appellee also admitted to telling the principals

that Appellant “could be fired.” Dep. of Joseph O. Padasak, Jr., 11/9/16, at

26. Also during his deposition, Appellee clarified that the CASD school board

decided to prevent Appellant from supervising the principals until she received

an updated commission, that he recalled subsidies being withheld due to

certification issues, and that not having a commission could be grounds for

dismissal. Id. at 24-25, 28-29, 37.




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      Further, in paragraph seven of his Answer, Appellee states that “[i]t is

admitted that [Appellee told former assistant superintendents of CASD] that

[Appellant] did not have a Commission to serve as Assistant Superintendent

for [CASD].” Answer and New Matter, 6/16/15, at ¶ 7. Likewise, Appellee

admits that he told the president of the teachers’ association about Appellant’s

lack of commission. Id. at ¶ 8. Appellee also admits that the TSD school

board president contacted him. Id. at ¶ 20.

      Here, Appellee’s admitted statements were based on a truthful comment

that Appellant did not have a commission and the consequences flowing from

that statement. Appellant’s arguments that Appellee made false statements

regarding whether she could supervise principals legally, whether CASD could

be fined, and whether she could be fired are incorrect. Taking Appellant’s

versions of the statements as accurate, Appellee truthfully expressed the

CASD school board’s doubt regarding Appellant continuing to supervise the

principals. See Dep. of Joseph O. Padasak, Jr., 11/9/16, at 37. Additionally,

Appellee truthfully stated that CASD could be fined, or more specifically, have

subsidies withheld, based on Appellant’s lack of a current commission. See

id. at 24. The fact that Appellant was not fired did not detract from the truth

that her lack of commission could be grounds to fire her.       See id. at 29.

Appellant has not cited to any evidence tending to establish a material issue

of fact regarding the statements’ truthfulness.

      Even if the foregoing statements were not truthful, however, their

publication was unlikely to produce a negative effect in the audience to which

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J-A11020-18



Appellee published the statements.     See Constantino, 766 A.2d at 1270.

The audience to whom Appellee published information about Appellant was a

particular group of people, many of whom needed to know the information to

perform their duties.   Id. at 1270.    Here, as in Constantino, Appellee’s

publication of the consequences of Appellant’s lack of commission to those

with experience with the administrative requirements of a school district

provides only a speculative basis for determining that Appellant could have

been disgraced. Id. at 1270-71. Thus, the statements were not capable of

being defamatory.

     Appellant also alleges that Appellee stated that she lied about being in

charge of the standards-based report cards project. Assuming Appellee made

the statement, Appellant does not dispute that such a statement was true.

Thus, this statement was also incapable of being defamatory. Spain v., 461

A.2d at 836.

     Accordingly, because Appellant failed to establish that Appellee’s

statements were untrue or possessed defamatory meaning, we discern no

basis to disturb the trial court’s grant of Appellee’s motion for summary

judgment. See 42 Pa.C.S. § 8343(1); Cashdollar, 595 A.2d at 75; Spain v,

461 A.2d at 836; see also Mariner Chestnut Partners, 152 A.3d at 277.

Furthermore, in light of our conclusion based upon matters of law rather than

factual disputes, we need not address Appellant’s further argument that the

trial court improperly considered affidavits in violation of Nanty-Glo when




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J-A11020-18



determining whether the recipients of the communication understood the

statements to be defamatory.

         In her final issue, Appellant argues that the trial court erred by

determining that “the absence of evidence of ‘special harm’ to [Appellant was]

a basis for entering summary judgment with respect to the statements

relating to her commission.” Appellant’s Brief at 27. According to Appellant,

the trial court erred in determining that Appellant was required to prove

actual, special, or general damages because the alleged publication was

defamation per se that related to her ability to perform in her profession. Id.

at 28-29 (citing Agriss v. Roadway Express, Inc., 483 A.2d 456, 470 (Pa.

Super. 1984)). Appellant also argues that she testified to the damages she

suffered, including that in her deposition she stated she was forced to go

through “unbelievable treatment.” Dep. of Catherine M. Dusman, 10/25/16,

at 70.

         Although Appellant argues that damages are presumed for per se

defamation, the Pennsylvania legislature abrogated the common law rule of

“presumed damages” when it codified the elements required to recover in a

defamation action. Walker v. Grand Central Sanitation, Inc., 634 A.2d

237, 242 (Pa. Super. 1993) (citing 42 Pa.C.S. § 8343)). Indeed, 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.” Id. at 242, 244 (adopting Restatement (Second) of




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Torts § 621, which provides that proof of actual damage is a requirement for

all slander actions).

       To the extent Appellant argues that she showed damages in her

deposition testimony, her testimony lacked specificity and merely stated in

conclusory fashion that she was harmed. See McCain v. Pennbank, 549

A.2d    1311,    1313-14    (Pa.   Super.     1988)   (“unsupported assertions

of conclusory accusations cannot create genuine issues of material fact”

(citation omitted)). Accordingly, Appellant’s failure to present any evidence

of damages is an additional reason that her defamation claims fail, as she fails

to meet a required element of defamation. See Lewis, 833 A.2d at 191 (citing

42 Pa.C.S. § 8343).

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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