J-A06003-18


                              2018 PA Super 209

  WEIRTON MEDICAL CENTER, INC.             : IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                 Appellant                 :
                                           :
                     v.                    :
                                           :
  INTROUBLEZONE, INC., D/B/A               :
  INTROUBLEZONE PRODUCTIONS, A             :
  WYOMING CORPORATION, AND PAUL            :
  SCHNEIDER AND LYNDA SCHNEIDER,           :
  HUSBAND AND WIFE,                        :
                                           :
                 Appellees                 : No. 952 WDA 2017

                 Appeal from the Order Entered June 13, 2017
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD-16-001563

BEFORE:    BENDER, P.J.E., SHOGAN, and STRASSBURGER, JJ.*

OPINION BY STRASSBURGER, J.:                            FILED JULY 18, 2018

      Weirton Medical Center, Inc. (WMC) appeals from the order entered on

June 13, 2017, which sustained preliminary objections in the nature of a

demurrer to the complaint it filed against Introublezone, Inc. d/b/a

Introublezone Productions (ITZ), Paul Schneider, and Lynda Schneider (the

Schneiders) (collectively, Appellees). Upon review, we affirm in part, reverse

in part, and remand for proceedings consistent with this opinion.

      We provide the following background based upon the facts alleged in

the complaint. This case involves the actions of a licensed plastic surgeon,

Dr. Craig Richard Oser. WMC extended staff privileges to him in December of

2008, and between November 1, 2009 and September 30, 2014, Dr. Oser was


*Retired Senior Judge assigned to the Superior Court.
J-A06003-18


an employee of WMC. See Complaint, 3/23/2017, at ¶ 8. According to WMC,

Dr. Oser and Lynda Schneider entered into an agreement, “pursuant to which

Ms. Schneider agreed to represent and advise Dr. Oser in matters including,

but not limited to, the development of a reality television show.” Id. at ¶ 9.

That reality show would be called “Drastic Plastic” and feature Dr. Oser. It

“was intended to highlight the most salacious elements of Dr. Oser’s practice

at WMC. Among other things, the production dubbed Dr. Oser ‘The Vagician’

because of his specialization in labiaplasty and vaginal reconstruction.” Id. at

¶ 11.

        WMC contends that on June 14, 2014, “a ‘sizzle re[e]l’ for Drastic Plastic

(the ‘Video’) was filmed at WMC’s Medical Office Building in Weirton, West

Virginia.” Id. at ¶ 12. WMC alleged that the “Video was commissioned with

the intent of submitting it to persons and entities in the entertainment industry

that might be interested in producing Drastic Plastic.” Id. According to WMC,

Ms. Schneider wrote the script for the Video, and the Schneiders “directed all

aspects of filming.” Id. at ¶ 13.

              The Video contains statements by individuals who identify
        themselves as Dr. Oser’s patients and employees, and therefore,
        patients and employees of WMC. Throughout the Video, Dr.
        Oser’s patients are frequently and pejoratively called “crazy.”
        Countless, highly offensive references are made concerning Dr.
        Oser’s work in breast augmentation. Additionally, the Video
        portrays the residents of West Virginia as uneducated and willing
        to waste money on unnecessary plastic surgery. The Video also
        appears to include images of actual patient medical files. Simply
        stated, the Video is in extremely poor taste.

Id. at ¶ 14.

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      Attached to the complaint is Ms. Schneider’s written outline of the Video.

According to WMC, it did not consent or authorize the use of its facilities for

this purpose. “After filming, Ms. Schneider edited the Video and sent it to Dr.

Oser for his review and approval. Thereafter, the Video was submitted to ITZ

for publication.” Id. at ¶ 17.

      Pursuant to an agreement between ITZ and Dr. Oser, “ITZ was granted

the exclusive right to pitch and submit Drastic Plastic” to those in the

entertainment industry interested in creating this reality show. Id. at ¶ 19.

“As part of its efforts to promote Drastic Plastic, [Appellees] posted the Video

on the online video service Vimeo, as well as on Dr. Oser’s website and

Facebook page.” Id. at ¶ 22.

      According to WMC, the “graphic nature of the Video, its objectification

of women, the careless way in which patient records are displayed, and the

contemptuous way it portrays the residents of West Virginia adversely affects

WMC’s reputation.” Id. at ¶ 27.     Based on the foregoing allegations, WMC

asserted claims against Appellees for defamation and false designation of

origin/false advertising pursuant to the Lanham Act, 15 U.S.C. § 1125. In

addition, WMC asserted a claim against the Schneiders for trespass for their

actions in entering WMC facilities without proper authorization.

      On May 1, 2017, Appellees filed preliminary objections to the complaint.

Specifically, they asserted preliminary objections in the nature of a demurrer

to the defamation and Lanham Act claims. Additionally, Appellees asserted


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“the trespass claim fails because Dr. Oser had apparent authority to permit

entry and filming on the property, and the filming of the [V]ideo on the

property did not physically damage the property.” Preliminary Objections,

5/1/2017, at 1 (unnumbered).

      WMC filed a response, and the trial court heard argument on this motion

on June 1, 2017. According to the trial court, WMC’s defamation claim was

based upon the contents of the Video, but WMC “had not taken the time to

transcribe that [V]ideo into a written document.” Trial Court Opinion,

6/13/2017, at 2. The trial court then requested WMC send it the Video, and

WMC complied. The trial court watched the Video “three times” and found

“nothing defamatory. Poor taste, yes; Defamation—No.” Id.

      According to the trial court,

      [n]othing in the [V]ideo identified [WMC] and any plaques and
      pictures on the wall are illegible. That Dr. Oser is an employee of
      [WMC] is well known and [WMC] has advertised his employment
      by it. Nevertheless, this connection does not give rise to a cause
      of action for something he did, with others, that [WMC] doesn’t
      like but does not defame it.

Id. at 3. The trial court also concluded that “the other claims, a fortiori, fail

as well.” Id. Thus, on June 13, 2017, the trial court dismissed the complaint

with prejudice.

      WMC timely filed a notice of appeal. The trial court did not issue an

order pursuant to Pa.R.A.P. 1925(b), but directs this Court to rely on its June

13, 2017 memorandum pursuant to Pa.R.A.P. 1925(a).




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         On appeal, WMC contends first that the trial court committed reversible

error by viewing the Video when it was not attached originally to the

complaint. WMC’s Brief at 10-13. According to WMC, the trial court’s actions,

“where it required WMC to provide it with evidence outside the four corners of

the [c]omplaint, and used its own review of that evidence as the basis for

determination[,]” were “contrary to the law of this Commonwealth regarding

the standard of review, and transformed the trial court’s role at the

preliminary objection stage from that of a gatekeeper to a finder of fact.” Id.

at 10.

         We consider the following in reviewing this claim.

                A preliminary objection in the nature of a demurrer is
         properly granted where the contested pleading is legally
         insufficient. Preliminary objections in the nature of a demurrer
         require the court to resolve the issues solely on the basis of the
         pleadings; no testimony or other evidence outside of the
         complaint may be considered to dispose of the legal issues
         presented by the demurrer. All material facts set forth in the
         pleading and all inferences reasonably deducible therefrom must
         be admitted as true.

                In determining whether the trial court properly sustained
         preliminary objections, the appellate court must examine the
         averments in the complaint, together with the documents and
         exhibits attached thereto, in order to evaluate the sufficiency of
         the facts averred. The impetus of our inquiry is to determine the
         legal sufficiency of the complaint and whether the pleading would
         permit recovery if ultimately proven. This Court will reverse the
         trial court’s decision regarding preliminary objections only where
         there has been an error of law or abuse of discretion. When
         sustaining the trial court’s ruling will result in the denial of claim
         or a dismissal of suit, preliminary objections will be sustained only
         where the case i[s] free and clear of doubt.




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             Thus, the question presented by the demurrer is whether,
       on the facts averred, the law says with certainty that no recovery
       is possible. Where a doubt exists as to whether a demurrer should
       be sustained, this doubt should be resolved in favor of overruling
       it.

Barton v. Lowe’s Home Ctrs., Inc., 124 A.3d 349, 354 (Pa. Super. 2015)

(quoting Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 208–09 (Pa.

Super. 2012) (citations omitted)).

       With respect to a claim for defamation, “[i]nitially, it is the function of

the court to determine whether the communication complained of is capable

of a defamatory meaning.” Krajewski v. Gusoff, 53 A.3d 793, 802 (Pa.

Super. 2012).       “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 associating or dealing with him.” Id.

       Here, the trial court could not determine whether the Video was “capable

of defamatory meaning” without viewing the Video. See id.           As the party

asserting the Video was defamatory, WMC should have attached the Video to

the complaint. However, it did not.1 WMC’s now complaining that the trial



____________________________________________


1 “When any claim or defense is based upon a writing, the pleader shall attach
a copy of the writing, or the material part thereof, but if the writing or copy is
not accessible to the pleader, it is sufficient so to state, together with the
reason, and to set forth the substance in writing.” Pa.R.C.P. 1019(i). Under
these circumstances, we conclude the Video is akin to a writing and had to be
attached to the complaint. In fact, WMC requested and received the Video
during pre-complaint discovery, so it clearly had access to the Video at the
time it filed its complaint.


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J-A06003-18


court should not have watched a video it should have provided in the first

place is disingenuous. Thus, we conclude the trial court was within its rights

to request and view the Video to make a ruling on these preliminary

objections.

      In any event, even if the trial court erred by requesting and watching

the Video, the trial court was correct in concluding that WMC did not establish

a prima facie case for defamation.         Defamation is codified at 42 Pa.C.S.

§ 8343, which sets forth the following in relevant part.

      (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.

42 Pa.C.S. § 8343(a).

      Here, the trial court determined that WMC did not establish the third

element, a connection between the Video and WMC. As the trial court points

out, “[n]othing in the [V]ideo identified [WMC].” Trial Court Opinion,

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J-A06003-18


6/13/2017, at 3.        WMC argues, however, that Appellees’ use of “WMC’s

identifying characteristics, medical professionals and employees (most

notably Dr. Oser), and facilities in the Video creates the reasonable likelihood

that individuals will believe that WMC is associated with or otherwise endorses

Drastic Plastic.” WMC’s Brief at 15. Notably missing from WMC’s argument is

where in the Video these references are made. In addition, our review of the

exhibits attached to the complaint reveals no mention of WMC. 2 See

Complaint, at Exhibits B, C. Based on the foregoing, we agree with the trial

court that WMC has not established a prima facie case for defamation with

respect to WMC.3 Thus, we affirm the trial court order as to WMC’s claim for

defamation.

____________________________________________


2 Moreover, our review of the Video reveals, consistent with the trial court’s
conclusions, that there are no references to WMC.

3 In addition, even if we agreed that WMC was identified in the Video, we
would conclude that WMC has not established a prima facie case for
defamation with respect to the first element, i.e. the defamatory character of
the Video as to WMC.

       In considering whether a statement is capable of defamatory
       meaning, the court considers “whether the statement tends so to
       harm the reputation of another as to lower him in the estimation
       of the community or to deter third parties from associating or
       dealing with him.” Tucker v. Phila. Daily News, [] 848 A.2d 113,
       124 ([Pa.] 2004) (internal quotation marks omitted). The
       statement must be examined in context to determine its likely
       effect on the reader, id., and the Court should evaluate the effect
       it is likely to produce “in the minds of the average persons among
       whom it is intended to circulate,” Tucker v. Fischbein, 237 F.3d
       275, 282 (3d Cir. 2001) (internal quotation marks omitted).



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         WMC next argues that the trial court erred in dismissing its claim for

trespass and its claim pursuant to the Lanham Act. WMC’s Brief at 16-21.

Here, the trial court concluded that because WMC failed to establish a claim

for defamation, these claims fail as well. See Trial Court Opinion, 6/13/2017,

at 3. The trial court’s conclusion is incorrect in this regard. The failure to

establish a claim for defamation bears no relationship to whether WMC has

established a claim under the Lanham Act or for trespass.           Thus, we will

analyze each claim individually.

         We begin with WMC’s claim it established a prima facie claim for false

association and/or false advertising pursuant to the Lanham Act. The Lanham

Act is

         codified at 15 U.S.C. § 1125(a), [and] creates two distinct bases
         of liability: false association … and false advertising. Section
         1125(a)(1)(A) prohibits “false or misleading” claims that are
         “likely to cause confusion, or to cause mistake, or to deceive as to
         ... the origin, sponsorship, or approval of his or her goods,
         services, or commercial activities by another person[.]” That
         provision is “the foremost federal vehicle for the assertion of ...
____________________________________________


         Furthermore, the statement must do more than merely
         annoy or embarrass the purported victim; “[s]he must have
         suffered the kind of harm which has grievously fractured h[er]
         standing in the community of respectable society.” Phila. Daily
         News, 848 A.2d at 124 (internal quotation marks omitted).

Burton v. Teleflex Inc., 707 F.3d 417, 434 (3d Cir. 2013) (emphasis added).

     While the representations in the Video possibly contained statements
capable of defamatory meaning as to the individuals featured in the Video or
even patients of Dr. Oser, there was nothing in the Video that was capable of
defamatory meaning with respect to WMC.


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      infringement of ... unregistered marks, names and trade dress[.]”
      5 McCarthy on Trademarks § 27:9. Claims made under it are often
      called “false designation of origin” or “false association” claims….
      To establish a false association claim, the owner of an
      unregistered mark “has the burden ... of proving the existence of
      a protectable mark.”

Parks LLC v. Tyson Foods, Inc, 863 F.3d 220, 225–26 (3d Cir. 2017) (some

citations omitted).

      To establish a false advertising claim under the Lanham Act, a
      plaintiff must prove:

         1) that the defendant has made false or misleading statements
         as to his own product [or another’s]; 2) that there is actual
         deception or at least a tendency to deceive a substantial
         portion of the intended audience; 3) that the deception is
         material in that it is likely to influence purchasing decisions; 4)
         that the advertised goods traveled in interstate commerce; and
         5) that there is a likelihood of injury to the plaintiff in terms of
         declining sales, loss of good will, etc.

Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 248 (3d

Cir. 2011).

      Here, WMC has not asserted the existence of either an unregistered or

registered trademark.     WMC asserts only that Appellees used without its

permission “names and likenesses of [WMC’s] medical professionals and

employees (in particular, Dr. Oser), facilities, and confidential patient

information.” Complaint, 3/23/2017, at ¶ 30. Thus, WMC has not stated a

cause of action for false association. Furthermore, it is clear that this Video is

not false advertising within the meaning of the Lanham Act. Specifically, WMC

has not alleged there are any false statements about the medical services




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J-A06003-18


offered at WMC in the Video. Accordingly, we affirm the trial court’s order as

to WMC’s claim under the Lanham Act.4

        Finally, WMC argues that the trial court erred in concluding WMC failed

to state a claim for trespass. WMC’s Brief at 19-20.            According to the

complaint, the Schneiders were not authorized to enter the WMC facility.

Complaint, 3/23/2017, at ¶ 37. According to Appellees, Dr. Oser had apparent

authority to authorize the Schneiders’ presence at WMC. Preliminary

Objections, 5/1/2017.

        “In Pennsylvania, a person is subject to liability for trespass on land in

accordance with the dictates of Restatement (Second) of Torts § 158.”5 Gavin

v. Loeffelbein, 161 A.3d 340, 355 (Pa. Super. 2017). “One is subject to

liability to another for trespass, irrespective of whether he thereby causes


____________________________________________


4“[I]n general we may affirm the decision of the trial court if there is any
basis on the record to support the trial court’s action; this is so even if we rely
on a different basis in our decision to affirm.” Williams v. Erie County Dist.
Attorney’s Office, 848 A.2d 967, 969 (Pa. Super. 2004).

5   That section provides the following.

        One is subject to liability to another for trespass, irrespective of
        whether he thereby causes harm to any legally protected interest
        of the other, if he intentionally

              (a) enters land in the possession of the other, or causes a
              thing or a third person to do so, or
              (b) remains on the land, or
              (c) fails to remove from the land a thing which he is under
              a duty to remove.

Restatement (Second) of Torts § 158 (1965).

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J-A06003-18


harm to any legally protected interest of the other, if he intentionally … enters

land in the possession of the other[.]” Restatement (Second) of Torts § 158.

Based on the foregoing, WMC has pled facts that, if true, would entitle it to

relief. WMC’s damages may be limited to two peppercorns, but it has pled a

sufficient claim to get past the preliminary objection stage.      Furthermore,

Appellees’ defense of apparent consent requires a factual determination,

rendering it not ripe for disposition at this juncture. Accordingly, we reverse

the order of the trial court on this basis, and reinstate WMC’s complaint as to

its trespass claim only.

      Order affirmed in part, reversed in part, and case remanded for

proceedings consistent with this opinion. Jurisdiction relinquished.

      Judge Shogan join this opinion.

      PJE Bender files a concurring and dissenting opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2018




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