J-A05034-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    FJW INVESTMENT, INC., D/B/A BATH           :   IN THE SUPERIOR COURT OF
    FITTER OF PITTSBURGH                       :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 1041 WDA 2018
    LUXURY BATH OF PITTSBURGH,                 :
    INC., BARRY ERENRICH, KENNETH              :
    KAYSER, RICHARD GALLAGHER,                 :
    BRYAN MYERS, MARK PINTEA, RB               :
    PRO, INC., D/B/A RE-BATH, JO ANN           :
    YOCHUM, AND CHRISTINE DUMM                 :

                Appeal from the Order Entered June 28, 2018
      In the Court of Common Pleas of Allegheny County Civil Division at
                           No(s): GD 12-009789

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                                 FILED APRIL 23, 2019

       FJW Investment, Inc., d/b/a Bath Fitter of Pittsburgh (Bath Fitter),

appeals from the order granting summary judgment in favor of Appellees

Luxury Bath of Pittsburgh, Inc., and its employees Barry Erenrich, Kenneth

Kayser, Richard Gallager, Bryan Myers (collectively, Luxury Bath) and RB Pro,

Inc., d/b/a Re-Bath, and its employees Mark Pintea, Jo Ann Yochum, and

Christine Dumm (collectively, Re-Bath).1           For the reasons that follow, we

affirm.


____________________________________________


1   We refer to Luxury Bath and Re-Bath collectively as Appellees.
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      Bath Fitter, Luxury Bath, and Re-Bath are each competitors in the one-

day bathroom remodeling business. These companies specialize in installing

acrylic bath and shower liners over existing bathtubs and showers at a

relatively inexpensive price.

      Sometime in 2010, Christopher Horney (Horney), the owner of Re-Bath,

created an allegedly defamatory video relating to Bath Fitter’s business

practices.   The video depicted Bath Fitter using shoddy materials, poor

workmanship, and engaging in other wrongful business practices in an effort

to cheat their customers. For example, the video showed Bath Fitter workers

using double-sided tape, as opposed to epoxy glue, as the adhesive behind

the acrylic bathtub and shower liners they installed over their customers’

existing bathtubs and showers.    Horney uploaded the video to YouTube in

March 2011. Between late September 2011 and June 2012, a Luxury Bath

salesperson showed the video to approximately five to ten potential

customers.    In February 2012, Bath Fitter allegedly learned about the

existence of the video.

      On June 4, 2012, Appellant filed a complaint against Luxury Bath and

Re-Bath in which it raised claims of defamation per se (Count I), commercial

disparagement (Count II), intentional interference with contractual relations

(Count III), trademark infringement (Count IV), unfair competition (Count V),

and civil conspiracy (Count VI). On November 16, 2012, in response to Luxury

Bath’s preliminary objections, Bath Fitter filed an amended complaint. Bath


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Fitter asserted that it suffered over $1,000,000.00 in losses stemming from

the allegedly defamatory video.

       Discovery began in May 2013 and continued for more than four years.

On July 17, 2017, Luxury Bath filed a motion for summary judgment as to all

counts in which it asserted that, inter alia, there was no evidence to support

Bath Fitter’s claim that the allegedly defamatory video caused Bath Fitter any

losses, and that in any event, the statute of limitations barred Bath Fitter’s

claims.    On October 11, 2017, the trial court entered an order granting

summary judgment in favor of Luxury Bath and against Bath Fitter with the

exception of Count I (defamation) of the complaint.2 With respect to Count I,

the trial court denied summary judgment to permit Bath Fitter additional time

to obtain evidence of loss and general damages to support its defamation

claim.

       On April 30, 2018, Re-Bath filed a motion for summary judgment in

which it argued that Bath Fitter had failed to prove damages stemming from

the publication of the allegedly defamatory video, and that the statute of

limitations barred Bath Fitter’s claims. On June 11, 2018, Luxury Bath joined

Re-Bath’s motion for summary judgment. On June 12, 2018, at the conclusion

of oral argument on the motions for summary judgment, the trial court once




____________________________________________


2  Count IV (trademark infringement) was dismissed by agreement of the
parties.

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again granted Bath Fitter an additional 10 days to obtain evidence of damages

that would support its defamation claim.

      On June 28, 2018, the trial court granted summary judgment on the

defamation claim in favor Appellees and against Bath Fitter, thereby

dismissing Bath Fitter’s sole remaining claim. The trial court concluded that

Bath Fitter’s defamation per se claim was barred by the statute of limitations

and that Bath Fitter had failed to produce “any evidence that linked any of

[Luxury Bath’s or Re-Bath’s] alleged conduct to an alleged million dollar drop

in sales during any period of time.” Trial Court Opinion, 9/27/18, at 4-6. On

July 23, 2018, this timely appeal followed.

      On appeal, Bath Fitter presents the following issues for review:

      1.    Are general damages sufficient for [Bath Fitter]’s
            commercial defamation per se claims, and is [Bath Fitter]
            entitled to submit expert reports and complete discovery to
            support these damages and other causes of action?

      2.    Does the statute of limitations not bar [Bath Fitter]’s claims
            when [Bath Fitter] filed its Complaint upon reasonable
            discovery of the [Appellees’] defamatory Video, which
            [Appellees] concealed, the Video was modified and newly
            published and [Appellees’] Video, Pitch Books, and oral
            defamatory statements were still being republished to
            customers up to and/or beyond the date of filing of the
            Complaint?

      3.    Did the [trial court] violate the Pennsylvania Rules of Civil
            Procedure, the Local Rules of the Court of Common Pleas of
            Allegheny County, and due process by issuing summary
            judgment while discovery was proceeding, Discovery Judge
            orders compelling relevant Defendant production were
            pending, and relevant expert reports were not yet due?




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       4.     Did the [trial court] violate due process, the Local Rules of
              Allegheny County Court of Common Pleas, and the
              Pennsylvania Rules of Civil Procedure by (1) ruling in
              violation of its own briefing schedule prior to the receipt of
              a Reply Brief, and (2) permitting summary judgment
              without proper timely filing of motions and briefs by
              [Appellees]?

       5.     Was summary judgment improper on each of [Bath Fitter]’s
              Counts when there were disputed issues of material fact and
              ongoing discovery?

       6.     Did various Orders of the Discovery Judge violate the judicial
              policy of free and open discovery by limiting [Bath Fitter]’s
              discovery activities which were attempting to obtain further
              evidence of tortious activity and damages?

Appellant’s Brief at 6-7.3

       In its first issue, Bath Fitter argues that the trial court erred in granting

summary judgment in favor of Appellees on the basis that it did not submit

evidence of damages.           Bath Fitter contends that general damages are

presumed in a defamation per se claim and that in any event, it did submit

sufficient proof of damages to sustain its defamation claim.

       Our Supreme Court has set forth the standard of review for an order

granting summary judgment as follows:

          As has been oft declared by this Court, “summary judgment is
       appropriate only in those cases where the record clearly
       demonstrates that there is no genuine issue of material fact and
       that the moving party is entitled to judgment as a matter of law.”
       Atcovitz v. Gulph Mills Tennis Club, Inc., [] 812 A.2d 1218,
       1221 ([Pa.] 2002); Pa.R.C.P. No. 1035.2(1). When considering a
       motion for summary judgment, the trial court must take all facts
       of record and reasonable inferences therefrom in a light most
____________________________________________


3   We have reordered Bath Fitter’s first and second issues for ease of review.

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     favorable to the non-moving party. Toy v. Metropolitan Life
     Ins. Co., [] 928 A.2d 186, 195 ([Pa.] 2007). In so doing, the trial
     court must resolve all doubts as to the existence of a genuine
     issue of material fact against the moving party, and, thus, may
     only grant summary judgment “where the right to such judgment
     is clear and free from all doubt.” Id. On appellate review, then,

         an appellate court may reverse a grant of summary
         judgment if there has been an error of law or an abuse of
         discretion. But the issue as to whether there are no genuine
         issues as to any material fact presents a question of law,
         and therefore, on that question our standard of review is de
         novo. This means we need not defer to the determinations
         made by the lower tribunals.

     Weaver v. Lancaster Newspapers, Inc., [] 926 A.2d 899, 902-
     03 ([Pa.] 2007) (internal citations omitted). To the extent that
     this Court must resolve a question of law, we shall review the
     grant of summary judgment in the context of the entire record.
     Id. at 903.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).

     This Court has stated the following with respect to defamation claims:

     A publication is defamatory if it is intended to harass the
     reputation of another so as to lower him or her in the estimation
     of the community or if it tends to deter third persons from
     associating or dealing with him or her.        When considering
     defamatory meaning, the court must determine what effect the
     statement is fairly calculated to produce and the impression it
     would naturally engender in the minds of average persons among
     whom it is intended to circulate. A statement which ascribes to
     another conduct, character, or a condition which would adversely
     affect her fitness for the proper conduct of her lawful business,
     trade or profession is defamatory.

Walker v. Grand Cent. Sanitation, Inc., 634 A.2d 237, 240 (Pa. Super.

1993).

     We have further explained “that a publication in which the speaker

imputes to another conduct, characteristics, or a condition that would

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adversely affect her in her lawful business or trade is termed a ‘[defamation]

per se.’” Id. at 241. “[A] plaintiff who pleads and proves [defamation] per

se need not prove special damages in order to recover.” Id. at 242. “The

term ‘special damages’ is defined as ‘actual economic harm’ or ‘pecuniary

loss.’” Pilchesky v. Gatelli, 12 A.3d 430, 444 (Pa. Super. 2011) (citation

omitted).   Importantly, however, “every defamation plaintiff must prove

‘actual harm.’ Pecuniary loss is not the only, or even the most significant

harm resulting from defamation. Injury to reputation, impairment of standing

in the community, personal humiliation and mental anguish are types of actual

harm ‘not limited to out-of-pocket loss’ compensable for defamation.”       Id.

Thus, we have held that “a defendant who publishes a statement which can

be considered [defamation] per se is liable [only] for the proven, actual

harm the publication causes.”         Walker, 634 A.2d at 244 (emphasis

added).

      In support of its claim that general damages are presumed in a

defamation per se action, Bath Fitter cites Leitz v. Hohman, 16 Pa. Super.

276 (1901). In Leitz, this Court stated that “[g]eneral damages are such as

the law will presume to be the natural or probable consequence of the

defendant’s conduct.” Id. at 283. This case, however, is over 100 years old

and not reflective of the more recent developments in the law relating to

defamation per se claims, cited above, which clearly state that a plaintiff in a

defamation per se action must provide proof of actual harm.


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      Based on our review of the certified record on appeal, we conclude that

the trial court did not err in determining that Bath Fitter failed to present any

evidence of actual harm to support a defamation per se claim. Discovery in

this case commenced in May 2013 and the trial court entered its final order

granting summary judgment on June 28, 2018. The certified record reflects

that in the more than five years Bath Fitter had to produce evidence of actual

harm, Bath Fitter presented no evidence to connect the allegedly defamatory

video to the $1,000,000.00 decrease in sales asserted by Bath Fitter.

Likewise, Bath Fitter failed to present any oral testimony from an actual or

prospective customer to state that the video negatively impacted their opinion

of Bath Fitter.

      For   example,   Samuel    Lucci,   Bath   Fitter’s   designated   corporate

representative, testified at his deposition as follows:

      Q . . . The question is, sitting here right now, can you name a
      customer whose business [Bath Fitter] lost because of the video?

      A Are you asking me personally?

      Q Let’s start with that.

      A No.

Appendix of Exhibits in Support of Motion for Summary Judgment, Exhibit 7

(Deposition of Samuel Lucci, Vol. IV, at 1014).

      Even on appeal, Bath Fitter does not point to any evidence that would

indicate that the video caused Bath Fitter any pecuniary loss or a loss to its

standing in the community.       At the time the trial court granted summary

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judgment, Bath Fitter had failed to identify a single person who could testify

that he or she viewed the allegedly defamatory video and that the video

caused that individual to view Bath Fitter in a negative light. Bath Fitter has

not at any point in this lawsuit tied its $1,000,000.00 decrease in sales to the

video. Indeed, it is difficult to conceive of a manner in which Bath Fitter could

relate the sales decrease to the video, particularly when Bath Fitter has been

unable to identify a single instance of lost business arising out of the video.

      Because Bath Fitter was unable to produce any evidence that the video

damaged its reputation, impaired its standing in the community, or caused

any kind of pecuniary loss, we conclude that the trial court properly

determined that Bath Fitter failed to provide proof of actual harm.           See

Pilchesky v. Gatelli, 12 A.3d at 444; Walker, 634 A.2d at 244. Accordingly,

the trial court properly granted summary judgment in favor of Appellees.

      In its second issue, Bath Fitter argues that the trial court erred in

granting summary judgment in favor of Appellees on the basis that the statute

of limitations barred Bath Fitter’s defamation per se claim.         Because we

conclude that the trial court correctly determined that Bath Fitter presented

no evidence to prove actual harm arising out of the publication of the allegedly

defamatory video, we decline to address this issue further.

      In its third issue, Bath Fitter argues that the trial court erred in granting

summary judgment because the trial court did so while discovery was

ongoing.    Specifically, Appellant asserts that the trial court violated


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Pennsylvania Rule of Civil Procedure 1035.2(2), because there was an

outstanding order directing Appellees to identify customers that they solicited

from Bath Fitter, and because Bath Fitter had identified an expert willing to

provide a report relating the $1,000,000.00 loss in sales directly to the video.

      Rule 1035.2(2) provides:

      After the relevant pleadings are closed, but within such time as
      not to unreasonably delay trial, any party may move for summary
      judgment in whole or in part as a matter of law

                                 *     *      *

         (2) if, after the completion of discovery relevant to the
         motion, including the production of expert reports, an adverse
         party who will bear the burden of proof at trial has failed to
         produce evidence of facts essential to the cause of action or
         defense which in a jury trial would require the issues to be
         submitted to a jury.

Pa.R.C.P. 1035.2(2) (emphasis added). The explanatory comment for Rule

1035.2 further explains:

      Special note should be taken of the requirement under Rule
      1035.2(2) that the motion be made after completion of
      discovery relevant to the motion, including the production of
      expert reports.   While Rule 1035.2(2) is prefaced with the
      statement that any party may file a motion after the relevant
      pleadings have closed, the adverse party must be given adequate
      time to develop the case and the motion will be premature if filed
      before the adverse party has completed discovery relevant to the
      motion. The purpose of the rule is to eliminate cases prior to trial
      where a party cannot make out a claim or a defense after relevant
      discovery has been completed; the intent is not to eliminate
      meritorious claims prematurely before relevant discovery has
      been completed.

Pa.R.C.P. 1035.2, explanatory comment.




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      We conclude that the trial court did not violate Rule 1035.2(2) when it

granted summary judgment in favor of Appellees.           We find this Court’s

decision in Kerns v. Methodist Hospital, 574 A.2d 1068 (Pa. Super. 1990),

instructive. In Kerns, the appellants argued that the trial court erred in ruling

on a motion for summary judgment because “an order extending the period

for discovery had previously been entered, and two proper discovery requests

remained outstanding at the time summary judgment was granted. We find

no merit in the contention.” Id. at 1071. In determining that there was no

merit to this claim, we explained:

         The applicable rules provide no timetable for discovery; rather,
      the parties are permitted to engage in the various types of
      discovery simultaneously, subject to the supervision of the trial
      court.    In supervising discovery, the trial court has broad
      discretion to take such action as it deems appropriate to insure
      prompt and adequate discovery.

         It may be an abuse of discretion to deny a continuance to
      complete further discovery when the party opposing summary
      judgment has been denied an adequate opportunity to conduct
      reasonable discovery.

                                 *     *      *

         On the other hand, appellate courts of this Commonwealth
      have found no abuse of discretion in denying a continuance to
      pursue further discovery pursuant to Pa.R.C.P. 1035(e) when a
      reasonable period for discovery had expired, and the opposing
      party failed to demonstrate the materiality of the outstanding
      discovery or the opposing party failed to demonstrate that it had
      proceeded in a timely manner with respect to the discovery
      sought.

                                 *     *      *




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          Parties must be given a reasonable period of time to pursue
      proper discovery, and if a summary judgment motion is filed
      prematurely, the trial court must grant a continuance if the
      opposing party specifies proper discovery to be sought in a timely
      manner. On the other hand, if an adequate time for discovery has
      already expired when a continuance is sought, the party opposing
      summary judgment must establish both materiality and due
      diligence with regard to the further discovery sought. Applying
      these rules in the instant case, we find no abuse of discretion in
      the trial court’s denial of a continuance to complete further
      discovery.

Id. at 1073-74 (citations omitted).       Ultimately, even though there was

discovery outstanding, this Court concluded that the appellants failed to

establish either the materiality or due diligence of the discovery they sought,

as they provided no explanation as to why they could not obtain the discovery

in the nearly three years since the filing of the complaint. Id. at 1074.

      In this case, where the trial court granted summary judgment on June

28, 2018, discovery had been ongoing since May 2013, well over five years.

As explained above, the trial court properly granted summary judgment, in

part, because in the over five years of discovery, Bath Fitter had failed to

produce any evidence tying its $1,000,000.00 decline in sales to the allegedly

defamatory video or a single instance of a person stating that they thought

less of Bath Fitter after viewing the video. The trial court afforded Bath Fitter

multiple time extensions after Appellees filed their motions for summary

judgment to produce such evidence. With no evidence to support its claim

that the video caused harm to Bath Fitter’s reputation, Bath Fitter provided




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no evidence upon which an expert could rely to establish any type of pecuniary

damages.

      Moreover, Bath Fitter has at no point, either before the trial court or this

Court, identified what an expert would have specifically stated in his or her

testimony. Bath Fitter has also failed to establish or even attempted to explain

why they could not have obtained any of this evidence in the five-plus years

of ongoing discovery. Accordingly, we conclude that the trial court did not err

in granting summary judgment prior to resolving the outstanding discovery

issues identified by Bath Fitter, because Bath Fitter failed to establish either

the materiality or due diligence of the discovery they sought. See id. at 1073-

74.

      In its fourth, fifth, and sixth issues, Bath Fitter argues that the trial court

erred in granting summary judgment when Appellees violated the local rules

of civil procedure by not properly or timely filing motions; that the trial court

improperly granted summary judgment as to Counts II through VI of the

complaint; and that the Discovery Judge violated free and open discovery by

limiting discovery designed to obtain evidence of tortious activity and

damages. Bath Fitter has waived these issues.

      “The argument portion of a brief must include pertinent discussion of

the point raised as well as citations to relevant authority.” Iron Age Corp.

v. Dvorak, 880 A.2d 657, 665 (Pa. Super. 2005); Pa.R.A.P. 2119(a)-(b). The

“[f]ailure to develop an argument results in waiver of the claim.” Plastipak


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Packaging, Inc. v. DePasquale, 937 A.2d 1106, 1112 (Pa. Super. 2007).

“This Court will not develop arguments on the behalf of an appellant or comb

the record for factual underpinnings to support an appellant’s position.”

Keller v. Mey, 67 A.3d 1, 7 (Pa. Super. 2013).

      In its discussion of these three issues, Bath Fitter only cites two total

cases, one of which is a Commonwealth Court decision, which is not binding

on this Court. Bath Fitter does not discuss the contents of those cases or how

they relate to this appeal. The arguments for each of these issues are severely

underdeveloped, tersely worded, and in no way explain how the trial court

erred with respect to each of the issues. In sum, Bath Fitter provides no basis

upon which this Court could grant relief on these issues.         Given these

deficiencies, we find that Bath Fitter has waived its fourth, fifth, and sixth

issues on appeal. See J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56

A.3d 402, 411 (Pa. Super. 2012) (holding that issue on appeal is waived where

appellant fails to develop argument of trial court error).

      Order affirmed.

      P.J.E. Gantman joins the memorandum.

      Judge Shogan files a concurring statement.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2019




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