J-A15002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MENITES, INC., D/B/A THEO’S BAR AND          IN THE SUPERIOR COURT OF
GRILLE, THEODORE KALATHAS, AND                     PENNSYLVANIA
MOSCA KALATHAS

                          Appellants

                     v.

WHTM ABC27 NEWS, MEDIA GENERAL,
INC., JAMES CRUMMEL, AMANDA ST.
HILAIRE

                          Appellee                No. 100 MDA 2017


            Appeal from the Order Entered December 14, 2016
           In the Court of Common Pleas of Cumberland County
                    Civil Division at No(s): 2016-00116


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                    FILED OCTOBER 10, 2017

     Menites, Inc. d/b/a Theo’s Bar and Grille, Theodore Kalathas, and

Mosca Kalathas (collectively, “Appellants”) appeal from the December 14,

2016 order entered in the Cumberland County Court of Common Pleas

granting the motion for judgment on the pleadings of WHTM ABC27 News,

Media General, Inc., James Crummel, and Amanda St. Hilaire (collectively,

“ABC27”). We affirm.

     The trial court summarized the factual and procedural history of this

matter as follows:

           [On January 7, 2016, Appellants] filed this action for
        defamation/libel and false light against ABC27 seeking
        damages as a result of allegedly defamatory statements
        about [Appellants] which were broadcast on December 18,
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         2015. The news report in question discussed the results of
         a health inspection done by the Commonwealth of
         Pennsylvania, Department of Agriculture in a segment
         called “Restaurant Report.”

            The health inspection report states that there was
         “Round-up weed killer stored next to food in the kitchen
         area,” “brown residue inside the soda gun holders at the
         bar and at the waitress station,” “dried food residue
         around the inside guard on the floor mixer,” and “pink
         residue on the deflector plate inside the ice machine.”

            The news report said: “Well, do you like your dinner
         with a side of weed killer? We didn’t think so. Neither do
         restaurant inspectors from the Department of Agriculture;”
         “want dinner with a side of weed killer?” “weed killer
         stored near food,” “brown residue built up in the soda
         nozzle at the bar,” “dried food residue caked on the floor,”
         and “pink slimy residue inside the ice machine.”

            Specifically, [Appellants] allege that the health
         inspection report did not say: dinner was served with a
         side of weed killer; that brown residue was “built up”
         anywhere or on anything; that anything was found on the
         floor; that the words “caked” and “slimy” were ever used.

            After responding to the complaint, [ABC27] filed a
         motion for Judgment on the Pleadings on May 13, 2016,
         arguing that they are protected by the Fair Report Privilege
         as they were reporting on an official report and they gave
         a fair and accurate summary of the state health inspection
         report, that the news reports are not “of and concerning”
         the Kalathases because the News Report does not even
         mention them, and that corporate entities cannot state an
         invasion of privacy claim because false light can only be
         maintained by a living individual, not corporate entities.

Opinion and Order of Court, 12/14/16, at 1-3 (footnotes omitted) (“Trial Ct.

Op.”). On December 14, 2016, the trial court granted ABC27’s motion and

dismissed Appellants’ complaint. Appellants timely filed a notice of appeal.

      Appellants raise the following issues on appeal:



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           I. Whether the Court committed an error of law and
           abused its discretion in concluding that no triable facts
           exist to support that [ABC27] forfeited their fair report
           privilege?

           II. Whether the Court committed an error of law and
           abused its discretion in concluding the news reports were
           not “of and concerning” [Theodore Kalathasas and Mosca
           Kalathas], and that no triable facts exist to suggest
           otherwise?

           III. Whether the Court committed an error of law and
           abused its discretion in concluding that a corporate entity
           cannot make a false light claim?

Appellants’ Br. at 4 (footnote omitted).

      We review the grant of a motion for judgment on the pleadings as

follows:

               Entry of judgment on the pleadings is permitted under
           Pennsylvania Rule of Civil Procedure 1034, which provides
           that “after the pleadings are closed, but within such time
           as not to unreasonably delay trial, any party may move for
           judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion
           for judgment on the pleadings is similar to a demurrer. It
           may be entered when there are no disputed issues of fact
           and the moving party is entitled to judgment as a matter
           of law.

               Appellate review of an order granting a motion for
           judgment on the pleadings is plenary. The appellate court
           will apply the same standard employed by the trial court.
           A trial court must confine its consideration to the pleadings
           and relevant documents. The court must accept as true all
           well pleaded statements of fact, admissions, and any
           documents properly attached to the pleadings presented
           by the party against whom the motion is filed, considering
           only those facts which were specifically admitted.

              We will affirm the grant of such a motion only when the
           moving party’s right to succeed is certain and the case is
           so free from doubt that the trial would clearly be a fruitless
           exercise.


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Southwestern Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185

(Pa.Super. 2013) (quoting Coleman v. Duane Morris, LLP, 58 A.3d 833,

836 (Pa.Super. 2012)).

      Appellants first contend that the trial court erred and abused its

discretion in concluding that there were no triable facts as to whether

whether ABC27 forfeited its fair report privilege. We have previously stated:


             Pennsylvania courts recognize the “fair report privilege.”
         DeMary v. Latrobe Printing & Publ'g Co., 762 A.2d 758
         (Pa.Super.2000), appeal denied, . . . 786 A.2d 988 (2001).
         Under this privilege, media defendants have qualified
         immunity from defamation liability when they report on
         official governmental proceedings. Id. The fair report
         privilege extends to court pleadings, such as a complaint.
         First Lehigh Bank v. Cowen, 700 A.2d 498, 502
         (Pa.Super.1997). The DeMary Court succinctly described
         the scope of the privilege, and its limitations, as follows:

                  In Pennsylvania, the fair report privilege
               protects the press from liability for the
               publication of defamatory material if the
               published material reports on an official action
               or proceeding. See Sciandra v. Lynett, . . .
               187 A.2d 586, 588 (Pa.1963); Mosley v.
               Observer Pub. Co., . . . 629 A.2d 965, 967
               (Pa.Super.1993). No responsibility attaches so
               long as the account of the official action or
               proceeding is fair, accurate and complete, and
               is not published “solely for the purpose of
               causing harm to the person defamed.”
               Sciandra, 187 A.2d at 589. See also
               RESTATEMENT (FIRST) OF TORTS § 611.
               “However, this qualified immunity is forfeited if
               the publisher steps out of the scope of the
               privilege or abuses the ‘occasion.’ This can be
               done     by    exaggerated      additions,    or


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               embellishments to the account.” Id. at 600,
               187 A.2d 586. See also Mosley, 629 A.2d at
               969.

         Id. at 763.

            The defendant abuses the fair report privilege if the
         article carries a materially greater “sting” than a precisely
         accurate retelling of the public proceeding itself. First
         Lehigh Bank, 700 A.2d at 503. Generally, the question of
         whether the privilege has been abused is a question of fact
         for the jury. Id. The trial court may make that
         determination as a matter of law, where the evidence is so
         clear that it points to only one reasonable conclusion. Id.

Weber v. Lancaster Newspapers, Inc., 878 A.2d 63, 72 (Pa.Super. 2005)

(footnote omitted).

      The trial court found that ABC27 did not abuse, and thus forfeit, its fair

report privilege because the news report did not produce a greater “gist” or

“sting” than the health inspection report prepared by the Department of

Agriculture upon which ABC27’s report was based.          After reviewing the

parties’ briefs, the certified record, and the relevant law, we conclude that

ABC27 did not forfeit its fair report privilege with respect to the news report

at issue.   We agree with and adopt the well-reasoned opinion of the

Honorable Albert H. Masland. See Trial Ct. Op. at 4-8.

      Appellants next claim that the trial court erred and abused its

discretion in concluding that the news reports were not “of and concerning”

Theodore and Mosca Kalathas (collectively, “Kalathases”).         Because, as

discussed above, the fair report privilege protects ABC27 from defamation

claims arising out of the news report in question, the Kalathases’ defamation


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claims fail even assuming the news report was “of and concerning” them.

Accordingly, we need not consider whether the news reports were “of and

concerning” the Kalathases.

      Finally,   we   conclude   that   Appellants   have   waived   their   issue

concerning the false light claim by failing to include it in their Pennsylvania

Rule of Appellate Procedure 1925(b) concise statement of errors complained

of on appeal. Forest Highlands Community Ass’n v. Hammer, 879 A.2d

223, 226 n.2 (Pa.Super. 2005) (citing Commonwealth v. Lord, 719 A.2d

306 (Pa.Super. 1998)).

      Accordingly, we conclude that the trial court properly granted ABC27’s

motion for judgment on the pleadings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




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