J-A31013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JARMEN M. NELSON AND RAKI D.                     IN THE SUPERIOR COURT OF
NELSON                                                 PENNSYLVANIA

                            Appellant

                       v.

LA FITNESS INTERNATIONAL, LLC

                                                      No. 367 MDA 2015


                Appeal from the Order Entered January 26, 2015
               In the Court of Common Pleas of Lancaster County
                       Civil Division at No(s): CI-10-13380


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 05, 2016

        Appellants, Jarmen M. and Raki D. Nelson (“the Nelsons”), appeal from

the order granting LA Fitness International, LLC’s (“the Gym”) motion for

summary judgment pursuant to the statute of limitations on the Nelson’s

claims for defamation. After careful review, we affirm on a slightly different

rationale.

         On October 26 and 28, 2010, the Nelsons instituted separate actions

for defamation against the Gym, which the trial court subsequently

consolidated. In their complaints, the Nelsons each asserted three separate

claims for defamation against the Gym. In 2014, the Gym filed a motion for

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*
    Retired Senior Judge assigned to the Superior Court.
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summary judgment, arguing that the Nelsons’ claims were barred by the

applicable statute of limitations. The trial court found that, based upon the

record, the Nelsons knew or should have known that they had a cause of

action against the Gym more than a year before they filed their complaints,

and granted the Gym’s motion for summary judgment. This timely appeal

followed.

      On appeal, the Nelsons argue that the trial court erred in ruling, as a

matter of law, that they knew or should have known of the existence of a

cause of action against the Gym.      We review a challenge to the entry of

summary judgment as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.
      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.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).




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      A review of the record in the light most favorable to the Nelsons

provides the following summary. The Nelsons were members of the Gym on

March 10, 2009, when the Harrisburg location of the Gym experienced

several thefts in its locker room.   After reporting the thefts to police, an

investigation revealed that the Nelsons were the only non-regularly

attending members at the facility at the time. Further investigation revealed

that the Nelsons were not seen using exercise equipment at the time, but

that they were loitering near the locker room.

      No charges were filed on the Harrisburg thefts, but the Gym posted

pictures of the Nelsons, advised members and employees that the Nelsons

were suspects in the thefts, and instructed employees to surveil the Nelsons

while they were at the Gym.

      One employee of the Gym informed the Nelsons that the Gym

suspected them of committing the thefts.         Furthermore, the employee

notified the Nelsons that the Gym had posted their pictures at the Harrisburg

location and that they were under surveillance while attending the

Harrisburg location. The Nelsons testified that this information did not cause

them any alarm, as it was just rumors.

      On October 30, 2009, a local television station reported that the

Nelsons had been charged with thefts occurring in the Gym’s Manheim

Township facility. In fact, the Manheim Police had charged the Nelsons with

thefts that had occurred in the Manheim location on March 10, 2009. The


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officer who filed the charges recorded the following reasoning for the

charges

      After reviewing [the investigative report from the Harrisburg
      thefts] and the log in sheet from [the Gym’s corporate office,] I
      will be filing charges against [the Nelsons] for theft by unlawful
      taking, (ten counts). Their pattern was to sign into [the Gym’s]
      clubs in Harrisburg, York, and Lancaster on the days of the thefts
      for about ten minutes each, not working out but hanging around
      the male locker rooms, and the thefts were discovered shortly
      after they left the clubs.

Manheim Township Incident Report, 2009-MT-02343. Shortly thereafter, the

Nelsons turned themselves in to the Manheim Township Police and denied

involvement in the thefts.

      Further investigation revealed that

      after contacting the Gym’s corporate officers, it] appears that
      [the Nelsons] did check into the Harrisburg [location of the Gym]
      on March 10, 2009 but did not actually check into the York or
      Lancaster [facilities].

      The way it was explained to me was that once their names came
      up as suspects in Harrisburg, the call was made to the York and
      Lancaster gyms, then an employee at each ran their names to
      determine if they had been in either York or Lancaster gyms.
      Running their names showed up on the check in list even though
      they never actually checked into the York or Lancaster gym.

      …

      Even though the Harrisburg gym has some witnesses and further
      evidence to support [the Nelsons] as suspects, and the M.O. is
      the same in our thefts as in the Harrisburg thefts, the cases
      against [the Nelsons] in the Lancaster [location of the Gym] has
      no evidence that would support the prosecutions.

Id.   The Manheim Township charges against the Nelsons were therefore

dropped shortly thereafter.

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      In granting summary judgment, the trial court’s one and a half page

discussion indicated that it believed that the Nelsons should have known of

the defamatory statements when they were informed by the Gym’s

employee that the Gym suspected them of the thefts over a year before the

Nelsons filed their complaint. The Nelsons argue that the issue of when they

should have known about the defamatory statements in an issue of fact best

left to the jury.    We conclude that the trial court reached the correct

conclusion as to most of the Nelsons’ claims, however, its cursory reasoning

is not entirely correct.

      “[A] cause of action accrues, and thus the applicable limitations period

begins to run, when an injury is inflicted.”   Wilson v. El-Daief, 964 A.2d

354, 361 (Pa. 2009) (citation omitted). In general, once the period of time

prescribed by the applicable statute has passed, the plaintiff is barred from

bringing suit. See Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa.

2011). Here, the Nelsons concede on appeal that the applicable limitation

period is one year.        See Appellants’ Reply Brief, at 1; 42 Pa.C.S.A. §

5523(1).

      Rather, the Nelsons argue that the discovery rule delayed the start of

the statutory limitation period. “The discovery rule applies to toll the statute

of limitations in any case in which a party is reasonably unaware of his or

her injury at the time his or her cause of action accrued.” Gleason, 15 A.3d

at 485 (citation omitted). The Gym argued, and the trial court concluded,


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that the Nelsons were no longer reasonably unaware that they had been

injured once the Gym’s employee informed them that they were under

suspicion and that their pictures had been posted in the Gym.

       In defamation cases, Pennsylvania requires a showing of damage to

reputation before any non-economic damages may be awarded.                  See

Joseph v. Scranton Times, L.P., ___A.3d ___, 2015 WL 7432373 (Pa.,

filed Nov. 20, 2015).       Absent a showing of malice, damages may not be

presumed, even when allegations of criminal wrongdoing form the basis of

the defamation claim. See id., at *25. Thus, in order to apply the statute

of limitations to a defamation claim, we must determine when the plaintiff

suffered an injury to his reputation.

       Here, both Nelsons admitted in their depositions that they were

informed of the Gym’s posting of their pictures and discussing their

suspicions of the Nelsons at least several months before the Manheim

Township Police Department filed charges on October 30, 2009. See N.T.,

deposition of Jarmen Nelson, 8/8/12, at 51-52; N.T., deposition of Raki

Nelson, 6/19/12, at 83-84.1           At that point in time, the Nelsons were on

notice of any alleged defamation by the Gym to its employees or members,
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1
  Both men testified at their depositions that this happened approximately
one year before the charges were filed. However, the thefts occurred
approximately seven months prior to the date charges were filed.
Obviously, the Nelsons’ credibility on the timing of the events is
questionable, but it is fair to infer that the conversation in question occurred
more than a month before the charges were filed.



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and more importantly, made aware of a possible injury to their reputation,

and the limitations period was not tolled. As such, the complaints filed by

the Nelsons on October 26 and 28, 2010, were beyond the one year statute

of limitations.

      One claim, however, is based upon the injury suffered when the

charges were filed and the story was published. This injury obviously did not

occur until October 30, 2009. Since the Nelsons arguably testified that the

earlier actions did not cause any injury to them, see id., it is plausible that

this claim was timely filed. However, statements made to police during the

course of an investigation are absolutely privileged, and cannot be

considered legally defamatory. See Pawlowski v. Smorto, 588 A.2d 36,

42-43 (Pa. Super. 1991). The Gym raised this defense in its initial motion

for partial summary judgment, and therefore was before the trial court at

the time it granted summary judgment on the grounds of the statute of

limitations.   This court will affirm the trial court if any evidence of record

supports its decision. See The Brickman Group, Ltd. v. CGU Insurance

Company, Inc., 865 A.2d 918, 928 (Pa. Super. 2004) (“We are not bound

by the trial court’s rationale, and may affirm on any basis.”). We therefore

affirm.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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