J-A22033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CINDY GALLAGHER,                               IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    ARCHDIOCESE OF PHILADELPHIA,

                             Appellant                 No. 632 EDA 2017


             Appeal from the Judgment Entered February 10, 2017
             in the Court of Common Pleas of Philadelphia County
               Civil Division at No.: March Term, 2015 No. 01835


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

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 13, 2017

        Appellant, the Archdiocese of Philadelphia, appeals from the final

judgment entered February 10, 2017. Specifically, it argues that the evidence

was insufficient to support the jury’s verdict, in favor of Appellee, Cindy

Gallagher, on the sole count of defamation, and that the trial court erred in

not granting a directed verdict on the basis of conditional privilege. We affirm.

        We take the factual and procedural history in this matter from the trial

court’s April 11, 2017 opinion and our review of the certified record. From

September 26 through September 30, 2016, this case was tried before a jury.

At trial, Appellee testified that she was employed as a full-time teacher at St.

Philip Neri School, part of the Archdiocese of Philadelphia, from 2007 through


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A22033-17



2014. During the 2013-2014 school year, she was one of two sixth-grade

homeroom teachers and, as such, was responsible for preparing students for

the TerraNova standardized tests. (See N.T. Trial, 9/27/16, at 17, 24).

      Principal Elizabeth Veneziale testified that on March 18, 2014, she

became aware of two practice TerraNova tests (for math and English language

arts) that contained questions similar to those on the actual test. (See id. at

127-28). Veneziale reviewed the practice tests and noticed the similarities.

She then called Theresa Garvin, the Director of Assessment and Special

Projects of Appellant’s Office of Catholic Education, to ask what she should do

next. (See id. at 128-29). After speaking with Garvin, Veneziale walked into

Appellee’s classroom, while Appellee was teaching, and asked her if the

practice tests were hers and if she had handed them out to the students.

Appellee replied that they were. (See id. at 25-27). Appellee testified that,

during this exchange, “the kids were staring at me and she was yelling at me”

and that after Veneziale left she “tried to get the kids back on track, but [she]

was just yelled at in front of [her] students by [her] principal.” (Id. at 28).

      The next morning Veneziale held a mandatory meeting with the

homeroom teachers who administer the TerraNova exam. Appellee testified

that at the meeting Veneziale said that there had been a “terrible cheating

scandal that has happened with the sixth grade teachers,” which was very

serious, and that both the Archdiocese and Monsignor Charles Vance, the head

of St. Philip Neri School, had been notified. (Id. at 32). Appellee explained




                                      -2-
J-A22033-17



that she and Pat Kaiser were the only sixth grade teachers who administered

the exam. (See id. at 33, 35).

      On March 24, 2014, Veneziale and Garvin conducted a mandatory

meeting of all the teaching faculty. (See id. at 37). Garvin explained that

she was called there because of a serious cheating scandal that happened at

the school. Appellee stated that Garvin “told us, the whole room, that the

[sixth] grade teachers had cheated and that they . . . could have brought

down the school . . . what they did was irreparable . . . and there was no

business for teachers like the cheaters to be teaching [] children.” (Id. at

38). Appellee further testified that Garvin said that the teachers who cheated

could be fired, lose licenses, and could be charged as criminals. (See id. at

39). Appellee explained that there was no doubt that Garvin was talking about

her and Kaiser, and that all of the other teachers in the room were looking at

them. (See id.).

      Garvin and Veneziale proceeded to conduct an investigation into the

alleged cheating, where they reviewed the conduct of the teachers and

concluded that, with respect to the math practice test, test questions on each

were nearly verbatim, specifically that the practice test “mimicked the

TerraNova,” and that Appellee had cheated. (N.T. Trial, 9/26/16, at 137; see

id. at 130; N.T. Trial, 9/27/16, at 137-38). Veneziale, Garvin, and the Office

of Catholic Education decided to invalidate the test. (See N.T. Trial, 9/27/16,

at 138).




                                     -3-
J-A22033-17



      On May 19, 2014, Veneziale mailed a letter to sixth grade parents

explaining that the integrity of the tests was compromised and the tests were

invalidated because “the students received study guides with questions from

the actual battery prior to testing.” (Letter, 5/19/14; see N.T. Trial, 9/27/16,

at 44). Appellee testified that after the letter was mailed, she received phone

calls from friends and concerned parents. (See N.T. Trial, 9/27/16, at 44).

In June of that year, Monsignor Vance informed Appellee that she would not

be offered a contract to teach at the school for the following year. (See id.

at 50).

      At the conclusion of Appellee’s case in chief, Appellant moved for nonsuit

based on agency and the ministerial exception of the defamation act, moved

to strike the claim for punitive damages, and asked the court to find

conditional privilege, and instruct the jury accordingly.     (See N.T. Trial,

9/28/16, at 60-64). The court denied nonsuit with respect to agency, the

ministerial exception, and conditional privilege, and granted nonsuit with

respect to punitive damages. (See id. at 70; N.T. Trial, 9/29/16, at 4). The

court later explained that when it denied the motion for nonsuit because of

conditional privilege, it did so because it believed that Appellee had shown

abuse of the privilege.   (See N.T. Trial, 9/30/16, at 24).     At the close of

evidence, Appellant moved for a directed verdict arguing that Appellee had

not met her burden of proving defamation, which the court denied. (See id.

at 29-33).    The jury returned a verdict in favor of Appellee and against

Appellant.

                                     -4-
J-A22033-17



       On October 11, 2016, Appellant moved for post-trial relief seeking a

judgment notwithstanding the verdict (JNOV), a new trial, a new trial on

damages, and/or remittitur.         On October 21, 2016, Appellee filed a cross-

motion for post-trial relief in regard to punitive damages. The court denied

both motions and judgment was entered on February 10, 2017. Appellant

timely appealed.1

       Appellant raises two issues for our review:

       1. Did [Appellee] fail to prove a prima facie case of defamation
          for any communication she alleged was defamatory, and,
          further,   was     every  allegedly   defamatory    statement
          conditionally privileged?

       2. Was [Appellant] entitled to a compulsory nonsuit or directed
          verdict on the basis of conditional privilege, and, alternatively,
          did the trial court abuse its discretion in sua sponte directing a
          verdict for [Appellee] on the question of abuse of privilege?

(Appellant’s Brief, at 2-3).

       Appellant challenges the trial court’s denial of its motion for judgment

notwithstanding the verdict (JNOV), for which our standard of review is well

settled.

              A JNOV can be entered upon two bases: (1) where the
       movant is entitled to judgment as a matter of law; and/or, (2) the
       evidence was such that no two reasonable minds could disagree
       that the verdict should have been rendered for the movant. When
       reviewing a trial court’s denial of a motion for JNOV, we must
       consider all of the evidence admitted to decide if there was
       sufficient competent evidence to sustain the verdict. In so doing,
       we must also view this evidence in the light most favorable to the
____________________________________________


1 The court did not order Appellant to file a concise statement of errors
complained of on appeal. It entered an opinion on April 11, 2017. See
Pa.R.A.P. 1925.

                                           -5-
J-A22033-17


      verdict winner, giving the victorious party the benefit of every
      reasonable inference arising from the evidence and rejecting all
      unfavorable testimony and inference. Concerning any questions
      of law, our scope of review is plenary. Concerning questions of
      credibility and weight accorded the evidence at trial, we will not
      substitute our judgment for that of the finder of fact. If any basis
      exists upon which the [court] could have properly made its award,
      then we must affirm the trial court’s denial of the motion for JNOV.
      A JNOV should be entered only in a clear case.

V-Tech Servs., Inc. v. Street, 72 A.3d 270, 275 (Pa. Super. 2013) (citation

omitted).

      Appellant claims that the trial court erred in denying its motion for

judgment notwithstanding the verdict because Appellee failed to establish a

prima facie case of defamation. Further, it contends that even if Appellee met

her initial burden, she failed to prove that the statements in question were not

conditionally privileged. (See Appellant’s Brief, at 20-41). We disagree.

             In an action for defamation, the plaintiff must prove: (1) the
      defamatory character of the communication; (2) publication by
      the defendant; (3) its application to the plaintiff; (4)
      understanding by the recipient of its defamatory meaning; (5)
      understanding by the recipient of it as intended to be applied to
      plaintiff; (6) special harm to the plaintiff; (7) abuse of a
      conditionally privileged occasion. . . .

Krajewski v. Gusoff, 53 A.3d 793, 802 (Pa. Super. 2012), appeal dismissed,

84 a3d 1057 (Pa. 2014) (citation omitted); see 42 Pa.C.S.A. § 8343(a).

            A communication is defamatory if it tends to harm the
      reputation of another as to lower him in the estimation of the
      community or to deter third persons from association or dealing
      with him. A communication is also defamatory 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.




                                      -6-
J-A22033-17



Davis v. Resources for Human Development, Inc., 770 A.2d 353, 357

(Pa. Super. 2001) (citations omitted).

      Here, Appellee provided evidence with respect to three defamatory

communications: (1) oral statements from Veneziale to teachers during the

March 19, 2014 meeting; (2) oral statements from Garvin to teachers at the

March 24, 2014 training session; and (3) the May 19, 2014 letter to parents.

(See Trial Ct. Op., at 22). The trial court concluded that:

      [f]or each communication, Appellee offered sufficient evidence of
      its publication, its application to Appellee, and that the recipients
      understood the communication as defamatory and applicable to
      her.

             Appellee testified that Veneziale, in a mandatory meeting of
      all homeroom teachers administering the TerraNova exam, told
      the attendees that there was a “terrible cheating scandal”
      involving the sixth-grade teachers. (N.T. Trial, 9/27/16, at 2; see
      id. at 30-32). . . .

             During Garvin’s presentation to all teachers, Appellee
      testified that Garvin similarly told the attendees that there was a
      “serious cheating scandal,” the sixth-grade teachers had cheated,
      their actions were irreparable, and proceeded to discuss the
      consequences of cheating in standardized tests. (Id. at 38; see
      id. at 36-39). . . .

            It was not unreasonable for the jury to conclude that the
      communication applied to Appellee and was understood to be as
      such. The jury heard that the attendees at both meetings
      associated the statements as referring to Appellee because
      everyone was staring at her. (See N.T. Trial, 9/27/16, at 35, 39,
      88). In Garvin’s presentation, she explicitly said that sixth-grade
      exams had been invalidated. . . . Appellee, as one of two sixth-
      grade homeroom teachers, was subject to the statements.
      Furthermore, during the testimony of former school principal
      Bernice Annechini (“Annechini”), the jury heard that former
      faculty told Annechini about the cheating scandal and that
      Annechini understood that the incident involved Appellee. (See
      N.T. Trial, 9/28/16, at 10-11).

                                      -7-
J-A22033-17


             Also, it was established that explanatory letters were sent
      to sixth-grade parents. (See Letter, 5/19/14). It was clear that
      the letter applied to Appellee as she was the affected students’
      teacher.     Appellee presented evidence that the sixth-grade
      parents read the letter and subsequently contacted both Appellee
      and the school about its meaning and effects. (See N.T. Trial,
      9/27/16, at 44).

            Considering the context in which the statements were made
      and [their] overall effect, the hearer or reader of the
      communication could have interpreted that Appellee engaged in
      unethical teaching practices. It could have led the hearer to
      believe that Appellee was unfit as a teacher. These were within
      reasonable implications of such remarks, especially in light of the
      teachers’ reactions . . . . These implications demonstrate that the
      statements were understood as defamatory within the category of
      slander per se.

             Given the nature of the statements, Appellee presented
      Annechini’s testimony to support a showing of its detrimental
      effects. (See N.T. Trial, 9/28/16, at 11). Annechini testified that
      hearing about the incident caused her to question her previous
      opinion of Appellee and that she decided to stay away from
      Appellee. (See id. at 11, 16). Moreover, Monsignor Vance
      testified that he believed Appellee was a cheater after he was
      informed about the incident. (See N.T. Trial, 9/27/16, at 166-
      67).     Lastly, Appellee declared that her relationships with
      students, parents, teachers, and parishioners deteriorated. (See
      id. at 57).

              There was sufficient evidence to sustain the verdict of
      liability against Appellant on this defamation claim. It was within
      the province of the jury to weigh the evidence, determine the
      veracity and credibility of the witnesses, and render its verdict
      accordingly. The verdict was not against the weight of the
      evidence such that reasonable persons could not have disagreed
      as to the result. This court will not disturb the jury’s finding.

(Trial Ct. Op., 22-25) (case citation and one record citation omitted; record

citation formatting provided).

      Upon review, we conclude that there was sufficient competent evidence

to sustain the jury’s verdict. Appellee offered evidence that Veneziale and


                                     -8-
J-A22033-17



Garvin made defamatory statements, which applied to Appellee, during the

March 19, and March 24, 2014 meetings with teaching faculty. In addition,

Appellee offered evidence of a letter sent to her students’ parents concerning

cheating on the TerraNova. It was clear that the letter was defamatory and

that it applied to Appellee. Appellee offered proof of harm, testifying that she

suffered as a result of these statements, both in the form of mental anguish

and damage to her reputation. Finally, Appellee testified that the statements

were made negligently, in that an investigation had not been completed prior

to accusing her of cheating, and that the defamatory language in the letter to

parents was unnecessary. Given this evidence, it was reasonable for the jury

to conclude that Appellee met her burden to prove a prima facie case of

defamation. See Krajewski, supra at 802; Davis, supra at 357. Therefore,

we conclude that the trial court did not err in denying Appellant’s motion for

JNOV. See V-Tech Servs., Inc., supra at 275. The first part of Appellant’s

first issue does not merit relief.

      In the second part of its first issue, Appellant contends that even if

Appellee met her burden of establishing the elements for defamation, it was

entitled to JNOV because the allegedly defamatory statements were

conditionally privileged. (See Appellant’s Brief, at 30-41). We disagree.

      This court has held that the defense of conditional privilege may apply

to certain defamatory statements where the communications were made on a

proper occasion, with proper motive, in a proper manner and based on

reasonable cause. See Miketic v. Baron, 675 A.2d 324, 329 (Pa. Super.

                                     -9-
J-A22033-17



1996).   “[P]roper occasions giving rise to a conditional privilege exist when

(1) some interest of the person who publishes defamatory matter is involved;

(2) some interest of the person to whom the matter is published or some other

third person is involved; or (3) a recognized interest of the public is involved.”

Id. (citations omitted). After a defendant proves that a matter is conditionally

privileged, the burden shifts to the plaintiff who must prove that such

conditional privilege was abused.

            Abuse of a conditional privilege is indicated when the
      publication is actuated by malice or negligence, is made for a
      purpose other than that for which the privilege is given, or to a
      person not reasonably believed to be necessary for the
      accomplishment of the purpose of the privilege, or includes
      defamatory matter not reasonably believed to be necessary for
      the accomplishment of the purpose.

Id. (citations omitted).

      Here, the trial court held that:

             Appellee entered sufficient evidence to sustain the jury’s
      finding of negligence for abuse of privilege. The jury heard
      evidence that Appellant exposed and blamed Appellee with
      cheating on the TerraNova exam to other faculty members and
      parents without adequate investigation as to the truth of the
      statement. Garvin specifically testified that the investigation was
      incomplete by the time she made her presentation. There was
      evidence that other teachers prepped the students in the same
      way as Appellee, (see N.T. Trial, 9/26/16, at 96-97, 118-19; N.T.
      Trial, 9/27/16, at 33-34), because Appellant recommended
      modeling the practice questions in the same format and
      disseminated this method of prepping students to the teachers.
      Lastly, the jury heard that the parent letter could have been
      worded in a way to lessen damage to Appellee’s reputation. Based
      on the evidence, the jury reasonably could have found that
      Appellant did not exercise reasonable care in investigating the
      truth of the statements prior to its publication and that Appellant’s



                                     - 10 -
J-A22033-17


      publication of the statements included defamatory matter not
      reasonably believed to be necessary to accomplish its purpose.

(Trial Ct. Op., at 14-15) (record citation formatting provided; parenthetical

quotation omitted).

      Upon review, we agree with the trial court that, viewing the evidence in

the light most favorable to Appellee, she met her burden of proving that

Appellant abused its conditional privilege where it had failed to adequately

investigate the truth of the defamatory statements before publishing them

and included defamatory statements in the letter to parents that were

unnecessary. See Miketic, supra at 329; (Trial Ct. Op., at 15). Therefore,

we conclude that the trial court did not err because the evidence was such

that no two reasonable minds could disagree that Appellee proved all of the

elements of defamation and that Appellant abused its conditional privilege.

See V-Tech Servs., Inc., supra at 275; see also Krajewski, supra at 802;

Davis, supra at 357. Appellant’s first issue does not merit relief.

      In its second issue, Appellant claims that the court erred when it “sua

sponte directed a verdict for [Appellee] on the question of abuse of privilege.”

(Appellant’s Brief, at 42 (unnecessary capitalization omitted); see id. at 42-

57). Specifically, it argues that the court erred when it decided as a matter

of law that Appellee met her burden, and therefore did not instruct the jury or

include a question on the verdict sheet concerning abuse of privilege. (See

id. at 45).   Appellant failed to raise its argument before the trial court,

therefore it is waived.



                                     - 11 -
J-A22033-17


            . . . [I]n order to preserve an issue for appellate review, a
      party must make a timely and specific objection at the appropriate
      stage of the proceedings before the trial court. Failure to timely
      object to a basic and fundamental error, such as an erroneous jury
      instruction, will result in waiver of that issue. On appeal, the
      Superior Court will not consider a claim which was not called to
      the trial court’s attention at a time when any error committed
      could have been corrected. . . . By specifically objecting to any
      obvious error, the trial court can quickly and easily correct the
      problem and prevent the need for a new trial. Additionally, the
      appellate court should not be required to waste judicial resources
      correcting a problem that the trial court could have easily
      corrected if it had been given the opportunity to avoid the
      necessity of granting a new trial.

Fillmore v. Hill, 665 A.2d 514, 515–16 (Pa. Super. 1995), appeal denied,

674 A.2d 1073 (Pa. 1996) (citations omitted); see Pa.R.A.P. 302(a).

      Here, in denying Appellant’s motion for nonsuit, the trial court explained

that it was denying nonsuit on the basis of conditional privilege because

Appellee had sufficiently proved abuse of privilege. (See N.T. Trial, 9/30/16,

at 22-24).    Thereafter, Appellant did not object to the trial court’s jury

instructions, which did not include an instruction on abuse of privilege, or the

verdict sheet, which did not include an abuse of privilege question. (See id.

at 23-24, 114). Because Appellant did not object before the trial court, we

conclude that it waived its argument that the failure to include such instruction

or verdict sheet question was error.          See Fillmore, supra at 515-16;

Pa.R.A.P. 302(a).

      Moreover, to the extent that Appellant claims the trial court erred in

denying its motion for JNOV because Appellee failed to show abuse of

privilege, it would not merit relief. As discussed supra at 10-11, the trial



                                     - 12 -
J-A22033-17



court explained that “[b]ased on the evidence, the jury reasonably could have

found that Appellant did not exercise reasonable care in investigating the truth

of the statements prior to its publication and that Appellant’s publication of

the statements included defamatory matter not reasonably believed to be

necessary to accomplish its purpose.” (Trial Ct. Op., at 15). Upon review, we

conclude that the trial court did not err where, viewing the evidence in the

light most favorable to Appellee, the evidence was such that no two

reasonable minds could disagree that Appellant abused its conditional

privilege. See V-Tech Servs., Inc., supra at 275; Miketic, supra at 329.

Appellant’s second issue would not merit relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




                                     - 13 -
