J-A16038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JESSIE L. SMITH                          :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                      Appellant           :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 MAIN LINE ANIMAL RESCUE, INC.,           :     No. 1132 MDA 2018
 ET AL.                                   :

                Appeal from the Order Entered June 8, 2018
  In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                            2012-CV-4739-CV


BEFORE:    LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                FILED: SEPTEMBER 18, 2019

      Appellant, Jessie Smith, appeals from the order entered in the Court of

Common Pleas of Dauphin County sustaining Appellees’ preliminary objections

to Appellant’s Third Amended Complaint, which raised claims of defamation,

disparagement, false light invasion of privacy, and civil conspiracy based on

Appellees’ public statements concerning Appellant’s performance as Special

Deputy Secretary of Pennsylvania’s Bureau of Dog Law Enforcement.            We

affirm.

      The trial court aptly provides the procedural history of the present

matter, as follows:

      Plaintiff/Appellant Jessie L. Smith [hereinafter “Appellant”]
      initiated this action on June 8, 2012, by filing a Praecipe for Writ
      of Summons against Defendants/Appellees Main Line Animal
      Rescue, Inc., William Smith, Teresita Delgado a/k/a Terezita
      Caldoro a/k/a T Hope, Jenny Stephens, Lancaster Newspapers,

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A16038-19


       Inc., and York Newspaper Company (collectively “[Appellees]”).
       On June 28, 2102, Appellant filed a Praecipe to Reissue Writ of
       Summons. Appellees Main Line Animal Rescue, Inc., William
       Smith, Jenny Stephens, Lancaster Newspapers, Inc., and York
       Newspaper Company were served via sheriff in the time
       proscribed [sic] by the law. Service by sheriff was attempted on
       Appellee Teresita Delgado a/k/a/ Terezita Caldoro a/k/a T Hope
       a/k/a Theresa Gervase (hereinafter [Appellee] Gervase), but was
       returned “not found.”

       On August 14, 2012, Appellant filed a Complaint against Appellees
       alleging Defamation (Count I), Disparagement (Count II), False
       Light (Count III), and Civil Conspiracy (Count IV). Following the
       filing of the Complaint, Preliminary Objections were filed.[] In
       response, Appellant filed an Amended Complaint on September
       20, 2012. Preliminary Objections were again filed.[]

       Following oral argument, the court overruled the preliminary
       objections of Jenny Stephens,[] sustained the preliminary
       objections of York Newspaper Company,[] Lancaster Newspapers,
       Inc.,[] and sustained in part the preliminary objections of
       Appellees Main Line Animal Rescue, Inc. and William Smith.[]
       Additionally, Appellant’s claims against Lancaster Newspapers,
       Inc. and York Newspaper Company were dismissed with
       prejudice.[1]

       Appellant filed a Second Amended Complaint on March 13, 2013.
       Once again, Appellees Main Line Animal Rescue, Inc., Jenny
       Stephens, and William Smith filed preliminary objections.
       Following oral argument, the court sustained the preliminary
       objections of Appellees Main Line Animal Rescue, Inc., Jenny
       Stephens, and William Smith, and afforded Appellant sixty (60)
       days to conduct pre-Complaint discovery and ninety (90) days to
       file a third amended complaint.[]

       On February 10, 2014, Appellant filed a Third Amended Complaint.
       Once again, Appellees Main Line Animal Rescue, Inc., Jenny
       Stephens, and William Smith filed preliminary objections.
       Following oral argument, the court sustained the preliminary
____________________________________________


1 The late Honorable Bernard L. Coates, Jr., entered the order, without
accompanying opinion, dismissing with prejudice Appellant’s claims against
the newspapers.

                                           -2-
J-A16038-19


     objections of Appellees Main Line Animal Rescue, Inc., Jenny
     Stephens, and William Smith, and dismissed the claims against
     them with prejudice.[]

     On July 15, 2015, Appellant filed a Praecipe for Default Judgment
     against Appellee Gervase for her failure to answer the complaint
     and subsequent amended complaints. On the same day, a default
     judgment was entered against Appellee Gervase by the Dauphin
     County Prothonotary. Thereafter, Appellant filed a Notice of
     Appeal with the Superior Court of Pennsylvania. The Superior
     Court subsequently quashed the appeal as premature because
     Appellant’s claims against Appellee Gervase were still pending.[]

     Despite the fact that the claims against Appellees Main Line Animal
     Rescue, Inc. and William Smith were dismissed with prejudice and
     a default judgment had been entered against Appellee Gervase,
     Appellant filed a Motion to Compel Settlement on July 20, 2016.
     On March 8, 2017, the Honorable Scott A. Evans (hereinafter
     “Judge Evans”) denied Appellant’s Motion stating that the time to
     file a motion for settlement had long passed and noted that the
     preliminary objections of Appellees Main Line Animal Rescue, Inc.,
     and William Smith were previously sustained.[fn]


     Fn. This case was originally assigned to the Honorable Bernard L.
     Coates, Jr. who passed away on September 17, 2015. Since
     litigation in this matter appeared to have stopped after the entry
     of a default judgment against Appellee Delgado, it was not re-
     assigned to another judge until Appellant filed her Motion to
     Compel Settlement in 2016.


     Appellee Main Line Animal Rescue, Inc., filed an Administrative
     Application for Status Conference on July 10, 2017, asserting that
     Appellant had failed to pursue the remaining claims against
     Appellee Gervase in a timely fashion.          Following a status
     conference, Judge Evans entered an Order directing Appellant to
     file a Certificate of Readiness for a non-jury trial on the issue of
     damages within sixty (60) days of the Order. Appellant complied,
     and a non-jury trial on the issue of damages was scheduled before
     the Honorable John L. Braxton (hereinafter “Senior Judge
     Braxton”).[]



                                    -3-
J-A16038-19


        On March 27, 2018, a non-jury trial on the issue of damages was
        conducted before Senior Judge Braxton. Appellant appeared with
        counsel, and Appellee Gervase failed to appear. At the conclusion
        of the hearing, Senior Judge Braxton afforded Appellant an
        opportunity to submit post-hearing proposed findings of facts and
        conclusion of law, which were filed by Appellant on April 10, 2018.
        Thereafter, Appellee [Jenny] Stephens submitted a response to
        Appellant’s proposed findings of fact and conclusions of law
        asserting that Appellant failed to inform the court of relevant
        proceedings that have previously adjudicated the primary issues
        in this matter, including testimony directly related to Appellant’s
        claims for economic damages.

Trial Court Opinion, 6/8/18, at 1-4.

        The trial court examined the record with respect to the claims raised

against Appellee Gervase and voided the default judgment against her for two

reasons. First, the court determined the Third Amended Complaint, which

serves as the basis for the default judgment, failed to include a notice to

defend as required by Pa.R.C.P. 1037(b). Second, the court determined it

lacked personal jurisdiction over Appellee Gervase because Gervase never

received proper service of the complaint or the amended complaints against

her.

        Not only did the court void default judgment against Gervase, however,

it also invoked the doctrine of collateral estoppel to dismiss Appellant’s claims

against Gervase with prejudice. Specifically, the court took judicial notice of

a defamation action filed by Jenny Stephens against Appellant and her

attorney in the Court of Common Pleas of Philadelphia County.2 The basis for

Stephens’ action was a Philadelphia Inquirer article reporting on the present

____________________________________________


2   See Stephens v. Smith and Barbin, Esq., No. 418 C.P. Phila. 2013

                                           -4-
J-A16038-19



Dauphin   County    action   and   incorporating   verbatim    averments   from

Appellant’s complaint, a copy of which Appellant’s attorney had provided to

the Inquirer.

      Stephens entered into a pre-trial settlement with Appellant, and she

subsequently won judgment on the merits against Appellant’s attorney

following a jury trial. As noted by the trial court herein:

            The Philadelphia Court found, among other things,
            that ‘[t]he evidence showed that [Appellant’s
            attorney] acted with actual malice and was
            unconcerned with the truth or falsity of his
            statements.’ . . . Therefore, by entering the judgment
            against [Appellant’s attorney], the Philadelphia Court
            found that the material averments in the Dauphin
            County Complaint, which [Appellant] verified, were
            false. Additionally, the judgment entered against
            [Appellant’s attorney] reflects a final adjudication that
            [the attorney] was aware or should have been aware
            of their falsity at the time he published the Dauphin
            County Complaint via a Philadelphia Inquirer reporter.

            [T]he issues presented in the Dauphin County and
            Philadelphia County cases are identical in that the
            Philadelphia Court, by necessity, examined the
            veracity and truthfulness of the Dauphin County
            Complaint. Following a multi-day jury trial, a final
            judgment was entered on the merits by the
            Philadelphia court. . . .       As named Defendants,
            [Appellant and her attorney] had a full and fair
            opportunity to litigate the veracity and truthfulness of
            the Dauphin County Complaint in the Philadelphia
            County jury trial. Lastly, it is clear that the judgment
            entered in Philadelphia County is essential to the
            instant action.

            Therefore, [Appellant] is collaterally estopped from
            pursuing the claims raised in the instant matter, and



                                      -5-
J-A16038-19


            should have discontinued the matter after judgment
            was entered in Philadelphia County.

Trial Court Opinion, at 9-10. This timely appeal followed.

      Appellant raises the following issues for our consideration:

      1. Did [the trial court] commit reversible error by misapplying the
         standard to sustain Appellees Main Line, William Smith, and
         Lancaster’s preliminary objections where [Appellant’s]
         complaint complied with the requirements of Pa.R.C.P. 1019?

      2. Did [the trial court] commit reversible error when it dismissed
         [Appellant’s] complaint against Appellee Gervase based on the
         statute of limitations where Appellee Gervase had actual notice
         of the action?


      3. Did [the trial court] commit reversible error by determining
         [Appellant’s] claims were barred by the doctrine of collateral
         estoppel where it lacked the ability to fully consider the nature
         of the allegedly related action and Ms. Smith’s involvement in
         that action?

Appellant’s brief, at 3.

      Our scope and standard of review of a challenge to an order sustaining

preliminary objections is well-settled:

      Our standard of review of an order of the trial court overruling or
      granting preliminary objections is to determine whether the trial
      court committed an error of law.          When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint.       When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.       Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases in
      which it is clear and free from doubt that the pleader will be unable
      to prove facts legally sufficient to establish the right to relief. If
      any doubt exists as to whether a demurrer should be sustained, it

                                      -6-
J-A16038-19


     should be resolved in favor of overruling the preliminary
     objections.

Khawaja v. RE/MAX Central, 151 A.3d 626, 630 (citation omitted). “[W]e

rely on the facts as alleged in the complaint, including its exhibits.” Id. at

627 n.1.

     Appellant’s Third Amended Complaint (“TAC”) and attached exhibits

alleged the following facts:   In 2006, then-Governor Ed Rendell appointed

Appellant as Special Deputy Secretary for Dog Law Enforcement within the

Pennsylvania   Department      of   Agriculture.    According   to   the   TAC,

Defendants/Appellees targeted her in a series of defamatory and, at times,

profane internet comments accusing her of failing to enforce newly enacted

dog laws against a purportedly noncompliant kennel, Lancaster County’s

Turkey Hill Kennel, because, inter alia, she may have been receiving bribes

from, or engaged in a sexual relationship with, the kennel owner.

     Specifically, the TAC alleged that Defendant/Appellee Theresa Gervase

published a blog at “turkeyhillkennel.blogspot.com” in which she routinely

criticized Appellant and encouraged her readers to forward her blog entries to

multiple private, public, and media outlets.       In her blog, she made the

following statements over the course of several days:

     • The authorities who have the power to enforce these laws have
       decided to look the other way. Is somebody being paid off or
       are they just too lazy to do their jobs? . . . . Who does [Turkey
       Hill Kennel owner Zimmerman] have in his pocket?

     • Why did Zimmerman receive a waiver?            Money, blow jobs,
       connections—which one?



                                      -7-
J-A16038-19



      • [caption of a stock photo of a horse and buggy] Are
        [Plaintiff/Appellant] Smith and Zimmerman [who is Mennonite]
        getting it on in the back of this buggy? Why is he above the
        law?

      • [Celebrating removal of Smith from her office] “Jesse L Smith
        Gets Fired; Don’t Let the Door Hit Ya on The [sic] Way Out”

TAC at ¶¶ 141, 144, 162, Exhibits 016, 030, 042, 043, 051.    Appellant’s TAC

averred that Defendant/Appellee Gervase explained her tactics to her

audience in an email, as follows:

      We want to embarrass Jessie L Smith into doing her job, maybe
      having her name all over the internet connected with sexual favors
      on a Mennonite may get her to get off her ass and do something
      if she wants this to end. There is already blatant animal cruelty
      taking place at Turkey Hill. There are other attacks in the works
      as well.

 TAC at ¶ 168.

      Appellant’s TAC also alleged that Appellees Gervase, Jenny Stephens,

Main Line Animal Rescue, Inc., and Main Line Executive Director and self-

described animal advocate William Smith acted both individually and

conspiratorially in authoring and republishing defamatory posts and emails

about Appellant. Specifically, the TAC averred that Main Line Animal Rescue

promoted on its Facebook page and website the aforementioned Gervase post

asking if a sexual relationship or an illicit financial arrangement with an

allegedly scofflaw kennel owner might possibly explain why Appellant failed to

carry out the duties of her office. The TAC also alleged that Main Line, in

publicly criticizing   Appellant,   underreported the   Bureau of   Dog Law




                                       -8-
J-A16038-19



Enforcement (“BDLE”) record of sanctioning noncompliant kennels for their

violations.

       William Smith, the TAC maintained, sent to Appellant’s superior,

Agriculture Secretary George Grieg, an email repeating Gervase’s accusations.

The TAC also averred that William Smith posted a false statement on Main

Line’s Facebook page after Appellant’s reassignment that she was “unpopular

with many in Pennsylvania’s animal welfare community and often went to

great lengths to protect breeders over the dogs in their kennels.”

       As for Appellee Lancaster Newspapers, Inc., the TAC averred that the

newspaper’s online version published an article discussing the kennel

controversy and supplying a hyperlink to the Gervase blog in question. The

TAC posited that the hyperlink constituted a republication of the allegedly

defamatory and disparaging blog.

       In Appellant’s first issue, she argues that the trial court erred in

sustaining preliminary objections in favor of Appellees Lancaster Newspaper,

William Smith, and Main Line Animal Rescue3 where her complaints sufficiently

averred their “individual and collective attacks through the coordinated and

widespread dissemination of false and offensive information [caused her] to

suffer[] irreparable harm to her reputation in the community and to her

career.” Appellant’s brief, at 24.



____________________________________________


3Appellant does not challenge the order sustaining the preliminary objections
of Jenny Stephens.

                                           -9-
J-A16038-19



       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).

       On the matter of what constitutes a defamatory communication, this

Court recently explained:

             “A communication may be considered defamatory if it tends
       to harm the reputation of another so as to lower him or her in the
       estimation of the community or to deter third persons from
       associating or dealing with him or her.” Bell v. Mayview State
       Hosp., 853 A.2d 1058, 1062 (Pa.Super. 2004) (citation omitted).
       Further, in determining whether a statement is capable of
       defamatory meaning, a court must view the statement in context.
       See id. [4] “The nature of the audience is a critical factor in
       determining whether a statement is capable of defamatory
       meaning.” Dougherty v. Boyertown Times, 377 Pa.Super.
       462, 547 A.2d 778, 783 (1988) (some quotation omitted).

              When raised by a public figure concerning statements
              bearing on a matter of public concern, claims for
              defamation are subject to an onerous standard of
____________________________________________


4 See also Thomas Merton Ctr. v. Rockwell Int'l Corp., 442 A.2d 213,
216 (Pa. 1981) (“Words which standing alone may reasonably be understood
as defamatory may be so explained or qualified by their context as to make
such an interpretation unreasonable. Thus, we must consider the full context
of the article to determine the effect the article is fairly calculated to produce,
the impression it would naturally engender, in the minds of the average
persons among whom it is intended to circulate.”)


                                          - 10 -
J-A16038-19


           proof, owing to considerations of free speech that
           inhere to any claim that implicates the First
           Amendment. See Milkovich v. Lorain Journal Co.,
           497 U.S. 1, 17, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)
           (emphasizing the obligation of appellate courts to
           ensure that judgments entered pursuant to state tort
           law do not intrude on the “field of free expression”).
           Consequently,    our    Courts'   First   Amendment
           jurisprudence makes clear that statements on matters
           of public concern must be provable as false before
           there can be liability under state defamation law....
           Moreover, …a statement of opinion relating to matters
           of public concern that does not contain a provably
           false connotation will receive full constitutional
           protection.

     Krajewski v. Gusoff, 53 A.3d 793, 803 (Pa.Super. 2012)
     (quotation marks and quotations omitted) (footnote added).

     In determining whether a statement is capable of defamatory
     meaning, the trial court must also ascertain whether the
     statement constitutes an opinion. The question of “[w]hether a
     particular statement constitutes a fact or an opinion is a question
     of law for the trial court to determine.” Mathias v. Carpenter,
     402 Pa.Super. 358, 587 A.2d 1, 3 (1991). Hence,
           [i]n determining whether [a publication is] capable of
           defamatory meaning, a distinct standard is applied
           [when] the publication is of an opinion. Veno v.
           Meredith, 357 Pa.Super. 85, 515 A.2d 571, 575
           (1986), appeal denied, 532 Pa. 665, 616 A.2d 986
           (1992). “A statement in the form of an opinion is
           actionable only if it may reasonably be understood to
           imply the existence of undisclosed defamatory facts
           justifying the opinion. A simple expression of opinion
           based on disclosed facts is not itself sufficient for an
           action of defamation.”          Id. (internal citations
           omitted); see also Neish v. Beaver Newspapers,
           Inc., 398 Pa.Super. 588, 581 A.2d 619, 622–24
           (1990), appeal denied, 527 Pa. 648, 593 A.2d 421
           (1991) (editorial criticizing the way appellant handled
           his job and suggesting replacing him was an opinion
           not based on undisclosed defamatory facts and,
           therefore, was not actionable. The Court found that
           while the statements in the editorial “might be viewed

                                   - 11 -
J-A16038-19


           as annoying and embarrassing, they were not
           tantamount to defamation.”).

     Kurowski v. Burroughs, 994 A.2d 611, 618 (Pa.Super. 2010)

     (emphasis in original).

     This principle is in conformity with Restatement (Second) of Torts
     § 566, Expression of Opinion. See Mathias, supra (applying §
     566). That section provides: “A defamatory communication may
     consist of a statement in the form of an opinion, but a statement
     of this nature is actionable only if it implies the allegation of
     undisclosed defamatory facts as the basis for the opinion.”
     Restatement (Second) of Torts § 566.

     Thus, generally, only statements of fact, rather than mere
     expressions of opinion, are actionable under Pennsylvania's
     defamation law. Bell, supra. In order for an opinion to be
     deemed capable of defamatory meaning, it must reasonably be
     understood to imply the existence of undisclosed defamatory facts
     justifying the opinion. Dougherty, supra.

     ...

           Caselaw prescribes additional elements that arise in
           relation to the character of the statement, the role of
           the defendant as a media outlet, or the role of the
           plaintiff as a public official or public figure. If the
           statement in question bears on a matter of public
           concern, or the defendant is a member of the media,
           First Amendment concerns compel the plaintiff to
           prove, as an additional element, that the alleged
           defamatory statement is in fact false.[4] See
           Philadelphia Newspapers, Inc. v. Hepps, 475 U.S.
           767, 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986);
           see also Milkovich v. Lorain Journal Co., 497 U.S.
           1, 2, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); Ertel v.
           Patriot–News Co., 544 Pa. 93, 674 A.2d 1038, 1041
           (1996).

           If the plaintiff is a public official or public figure, she
           must prove also that the defendant, in publishing the
           offending statement, acted with “actual malice,” i.e.
           “with knowledge that [the statement] was false or

                                     - 12 -
J-A16038-19


          with reckless disregard of whether it was false or not.”
          Curran v. Philadelphia Newspapers, Inc., 376
          Pa.Super. 508, 546 A.2d 639, 642 (1988).

          “Actual malice” is a fault standard, predicated on the
          need to protect the public discourse under the First
          Amendment from the chill that might be fostered by
          less vigilant limitations on defamation actions brought
          by public officials.

                [T]he stake of the people in public
                business and the conduct of public officials
                is so great that neither the defense of
                truth nor the standard of ordinary care
                would protect against self-censorship and
                thus     adequately       implement      First
                Amendment policies.         Neither lies nor
                false communications serve the ends of
                the First Amendment, and no one
                suggests their desirability or further
                proliferation.      But to insure the
                ascertainment and publication of the truth
                about public affairs, it is essential that the
                First Amendment protect some erroneous
                publications as well as true ones.

          Curran, 546 A.2d at 643. Thus, the actual malice
          standard, by design, assures “that public debate will
          not suffer for lack of ‘imaginative expression’ or
          ‘rhetorical hyperbole’ which has traditionally added
          much to the discourse of this Nation.” Milkovich, 497
          U.S. at 2, 110 S.Ct. 2695. “[T]he First Amendment
          requires that we protect some falsehood in order to
          protect speech that matters.”

          Thus, the “actual malice” standard is a constitutionally
          mandated safeguard and, as such, must be proven by
          clear and convincing evidence, the highest standard
          of proof for civil claims. Moreover, evidence adduced
          is not adjudged by an objective standard; rather,
          “actual malice” must be proven applying a subjective
          standard by evidence “that the defendant in fact
          entertained serious doubts as to the truth of his
          publication.” See Curran, 546 A.2d at 642. This

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J-A16038-19


          determination may not be left in the realm of the
          factfinder:

                The question whether the evidence in the
                record in a defamation case is of the
                convincing clarity required to strip the
                utterance of First Amendment protection
                is not merely a question for the trier of
                fact.    Judges, as expositors of the
                Constitution, must independently decide
                whether the evidence in the record is
                sufficient to cross the constitutional
                threshold that bars the entry of any
                judgment that is not supported by clear
                and convincing proof of “actual malice”.

          Curran, 546 A.2d at 644. We have recognized
          accordingly that the question of “actual malice” is not
          purely one of fact, but rather may be described as one
          of “ultimate fact,” a “hybrid of evidential fact on the
          one hand and conclusion of law on the other.” Id.

          Application of these concepts is more difficult than its
          recitation.      See Curran, 546 A.2d at 644.
          “[E]rroneous statement is inevitable in free debate,
          and...must be protected if the freedoms of expression
          are to have the ‘breathing space’ that they need to
          survive.” Id. at 645. To minimize judicial intrusion
          into this “breathing space,” our courts have tended to
          measure actionable conduct by what the defendant
          did, as opposed to what it refrained from doing or
          might have done but omitted to do. Curran, 546 A.2d
          at 648. Thus, while “actual malice” may be shown by
          circumstantial evidence of events surrounding the
          publication of the offending statement, that evidence
          must tend to establish fabrication, or at least that the
          publisher had “obvious reasons to doubt the veracity
          of the informant or the veracity of his reports.”
          Because “actual malice” is a fault standard, it is not
          shown by the falsity of the statement in and of itself.
          See Curran, 546 A.2d at 642. Similarly, evidence of
          ill will or a defendant's desire to harm the plaintiff's
          reputation, although probative of the defendant's
          state of mind, without more, does not establish

                                   - 14 -
J-A16038-19


            “actual malice.” Harte–Hanks Communications,
            Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678,
            105 L.Ed.2d 562 (1989) (“The phrase ‘actual malice’
            is confusing in that it has nothing to do with bad
            motive or ill will.”).

      Lewis v. Philadelphia Newspapers, Inc., 833 A.2d 185, 191-
      93 (Pa.Super. 2003) (quotations and citations omitted) (emphasis
      in original) (footnote added).

Kuwait & Gulf Link Transp. Co. v. Doe, 2019 PA Super 234, at *7 (Aug. 1,

2019).

      At the outset, we observe that Appellee Gervase’s blog statements are

central not only to the claims against her individually but also to the conspiracy

claim implicating William Smith and Main Line Animal Rescue, and to the

defamation claim against Lancaster Newspaper. For these reasons, we first

examine whether Theresa Gervase’s relevant statements appearing in her

blog were capable of a defamatory meaning as contemplated under the

applicable standard of review.

      In her blog statements, reproduced supra, an openly frustrated Gervase

questioned why the Turkey Hill Kennel remains open despite an unfavorable

investigation report filed by the BDLE, and asked in an ostensibly speculative—

albeit profane—manner whether sex or bribery was involved.             Gervase’s

guesswork did not name Appellant specifically, and her query is offered in

such a freewheeling and sensational way—without any suggestion that it relies

on fact or evidence for support—that there is no reason to believe that the

average reader to whom Gervase directs her blog would have understood the




                                     - 15 -
J-A16038-19



statement as anything other than an obviously satirical expression of her

frustration with relevant official decisionmaking.

      Furthermore, the blatant outlandishness of Gervase’s subsequent post

eliminates any reasonable doubt her audience might have harbored about the

satirical posture of the comments in question.          Again devoid of any

discussion—let alone a serious one—of fact or evidence offered to support the

“allegation” within, the second post consists of a stock photograph of a horse

and enclosed buggy of the style typically seen in Lancaster County, and asks

if Appellant and the Kennel owner—a Mennonite—might be “getting it on”

inside. While embarrassment and personal offense understandably could flow

from such base and ignoble commentary, this second post nevertheless is no

more than a farcical addition to an already patently satirical theme clearly

intended to draw attention to Gervase’s opinion that Appellant, as head of the

Dog Law Enforcement Bureau, should close the Turkey Hill Kennel.

      As discussed above, for an opinion to constitute defamation of a public

figure regarding a matter of public concern, “it must reasonably be understood

to imply the existence of undisclosed defamatory facts justifying the opinion.”

Dougherty, supra.       Here, we find that no audience would reasonably

understand Gervase’s comments to imply the existence of undisclosed

defamatory facts relating to a sexual relationship or bribery. Given the utterly

sophomoric presentation of a speculative, baseless suggestion, the aim of

such posts would have been obvious to her readers—use offensive and

ridiculous expression only as a means to gain attention to the Gervase’s

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sincerely held political opinion.5      See Commonwealth v. Knox, 190 A.3d

1146, 1154 (Pa. 2018) (acknowledging First Amendment protections attach

“equally to cultured, intellectual expressions and to crude, offensive, or tawdry

ones.”) (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (First

Amendment        protections     attached      to   adult   magazine’s   “parody”   of

advertisement portraying plaintiff, a public figure and preacher, as stating his

“first time” was with his mother in an outhouse; actual malice not shown

where parody could not “reasonably be understood as describing actual

facts….”). Accordingly, upon examination of the Third Amended Complaint

and its attachments, we conclude it is free and clear from doubt that Appellant

would be incapable of proving by clear and convincing evidence that actual

malice attended the statements appearing in Theresa Gervase’s blog.

       Turning, then, to Appellant’s defamation claim against Lancaster

Newspaper for its alleged republication of the Gervase blog, we observe that

such claim was conditional upon first finding that the Gervase posts were

capable of a defamatory meaning.               As we have refuted this necessary

condition, it follows that we may affirm the order sustaining preliminary

objections to the defamation claim lodged against Lancaster Newspaper.

       Next, we address Appellant’s contention that the trial court erroneously

sustained preliminary objections to her claims against William Smith and Main

Line Animal Rescue. In Appellant’s brief, she argues that her TAC averred
____________________________________________


5As the attachments to the TAC establish, Gervase admitted to this tactic in
an email she sent to a follower shortly after posting the comments in question.

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sufficient facts that William Smith authored defamatory emails and posts in

both his individual capacity and as the President/Director of Main Line Animal

Rescue.

      For instance, Appellant states, the TAC identified as a source of

defamation William Smith’s “Open Letter” of June 9, 2011, which he posted

on Main Line’s Facebook page, and other remarks by Smith critical of the

Bureau of Dog Law Enforcement’s response to an inspection of Turkey Hill

Kennel revealing poor air quality and other deficits. Exhibits to Plaintiff’s TAC,

p. 8. In the article, Smith asked rhetorically, “How long are you going to allow

these poor dogs to suffer?” suggesting that the Bureau was remiss in failing

to contact a local humane officer. Id. Smith also opines that allowing the

kennel to use proscribed wire flooring in certain situations is “hardly valid.”

Id. He concludes “It’s a great tragedy that in this great state we’re allowing

people to deny hundreds of dogs breathable air.” Id.

      The TAC provides the following excerpt of Smith’s remarks:

      Secretary Smith [Appellant] is claiming “appropriate action” has
      been taken against this kennel. Appropriate action was NOT
      taken. The fact that her Bureau still refuses to contact local
      humane agents when her inspectors find conditions that so
      obviously pose a threat to the welfare of hundreds of dogs is
      appalling and reflects badly on her personally now that she is
      acting director of the BDLE. Last summer, we were also assured
      by Secretary Smith that dogs’ feet were no longer falling through
      the wire strand flooring in commercial kennels. Well, here is proof
      that PA still has a serious problem with the enforcement of the
      laws designed to protect breeding dogs in these facilities. If the
      section of our new laws guaranteeing unfettered access to outside
      exercise runs was being enforced, the dogs trapped inside this
      facility could have escaped the noxious fumes by simply going

                                     - 18 -
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     outside. But Secretary Smith and the Department of Agriculture
     still believe the financial hardship of installing indoor/outdoor runs
     (which is almost nothing) trumps the health and welfare of
     hundreds of innocent animals. What stinks more? The air in this
     kennel last March – or the fact that our money pays Secretary
     Smith’s salary and she’s once again failing to do her job.

TAC at ¶ 204.

      According   to   Appellant,    Smith’s   accusations   of   a   mishandled

investigation relied upon “misrepresented facts and statistics regarding

[Appellant] and made other false representations regarding [Appellant’s]

competence. Appellant’s brief, at 38 (citing TAC ¶¶ 203-205). Appellant also

averred that Smith sent what she called a “defamatory” email to both

Secretary Grieg and her containing

     false and defamatory statements that stated or were reasonably
     understood to imply that: [Appellant] had granted improper
     waivers, willfully failed to respond to complaints, failed to pass on
     complaints to dog wardens, pushed a compromise which allowed
     the violations at Turkey Hill, and then had a “handful of supporters
     write false statements in support of the compromise, which were
     falsely characterized as having caused or condoned conduct which
     was illegal under both the prior and current laws.

TAC at ¶¶ 207, 208.

      Appellant likewise points to a June 16, 2011, post authored by Smith

on Main Line’s Facebook page announcing her removal from office. In the

post, Smith stated “[Appellant] was unpopular with many members of

Pennsylvania’s animal welfare community and often when [sic] to great

lengths to protect the breeders over the dogs in their kennels.” TAC ¶¶ 228-

231. Again, the TAC avers that the latter clause in the quotation represented

a falsehood.


                                     - 19 -
J-A16038-19



       With respect to William Smith’s comments criticizing the Bureau

generally and Appellant specifically for official decisions following the

inspection of Turkey Hill Kennel, we find them incapable of a defamatory

meaning where they represent Smith’s opinions based solely on disclosed facts

of public concern. See Kuwait, supra. Moreover, Smith’s statement that

Appellant went to great lengths to protect breeders over the dogs is fairly

understood to express only his opinion on how Appellant in her official capacity

should   have   balanced the    potentially    competing     interests of   kennel

microeconomics and dog health/safety at play in operating a kennel. Finally,

to the extent the TAC takes issue with the accuracy of Smith’s statistics on

the BDLE, it does not aver the kind of fabrication or reckless disregard for the

veracity of his report that the “actual malice” fault standard requires. Averring

the mere falsity of Smith’s statistics, in and of itself, was not enough. See

Curran, 546 A.2d at 642.

       Because the averments pertaining to comments posted by William Smith

and Main Line Animal Rescue, therefore, do not reflect actual malice, we affirm

the order sustaining preliminary objections in favor of William Smith and Main

Line   Animal   Rescue   with   respect   to   Appellant’s    defamation    claim.

Furthermore, as we have concluded it is clear and free from doubt that

Appellant is incapable of proving a defamation claim against any of the named

Defendants/Appellees, we may also affirm the trial court’s order sustaining all

preliminary objections to Appellant’s conspiracy to commit defamation claims.




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J-A16038-19



      The next part to Appellant’s first issue contends that the trial court erred

in sustaining preliminary objections to her claim of false light invasion of

privacy. As with defamation, the elements of a claim for false light include

knowledge of, or reckless disregard for, the falsity of a publication:

      One who gives publicity to a matter concerning another that
      places the other before the public in a false light is subject to
      liability to the other for invasion of his privacy, if

             (a) the false light in which the other was placed would
             be highly offensive to a reasonable person, and

             (b) the actor had knowledge of or acted in reckless
             disregard as to the falsity of the publicized matter and
             the false light in which the other would be placed.

      Restatement (Second) of Torts § 652E.

Coleman v. Ogden Newspapers, Inc., 142 A.3d 898, 905 (Pa.Super.

2016).

      The United States Supreme Court has extended First Amendment

protections to speech uttered in violation of a plaintiff's state privacy rights.

See Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 17 L.Ed.2d 456

(1967) (extending actual malice standard—requiring that “the defendant

acted with knowledge of the falsity of the statement or in reckless disregard

as to truth or falsity”—to claim of false light invasion of privacy under state

statute).   Krajewski, 53 A.3d at 807–08.       See also Coleman v. Ogden

Newspapers, Inc., 142 A.3d 898, 906 (Pa.Super. 2016) (recognizing actual-

malice prong to false light claim).




                                      - 21 -
J-A16038-19



      We have already determined that Appellant’s TAC fails to aver actions

on the part of Appellees demonstrating actual malice. For this reason, we

conclude that it is clear and free from doubt that Appellant will be unable to

prove facts legally sufficient to establish a necessary element to her false light

claims and the conspiracy claims corresponding thereto.

      Next, we address Appellant’s argument challenging the trial court’s

orders sustaining preliminary objections to her disparagement claims.

Regarding the tort of disparagement, the Pennsylvania Supreme Court has

observed:

      The Restatement (Second) of Torts § 623A labels this tort as
      “injurious falsehood.” Regardless of the label, the publication of
      a disparaging statement concerning the business of another is
      actionable where: (1) the statement is false; (2) the publisher
      either intends the publication to cause pecuniary loss or
      reasonably should recognize that publication will result in
      pecuniary loss; (3) pecuniary loss does in fact result; and (4) the
      publisher either knows that the statement is false or acts in
      reckless disregard of its truth or falsity. Restatement (Second) of
      Torts § 623(A) (1977).

Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 246

(Pa. 2002).

      In its Pa.R.A.P. 1925(a) opinion, the trial court explains why it sustained

Appellees’ preliminary objections with respect to Appellant’s disparagement

claim:

      Appellant fails to show that Appellees intended for publication of
      the allegedly false statements to result in harm to interests of
      Appellant having a pecuniary value. To the contrary, in her [TAC],
      Appellant alleges the “motives” as follows:       “(1)[Appellees]
      believed the compromise was inadequate; (2) [Appellees] felt that

                                     - 22 -
J-A16038-19


      increasingly aggressive action was needed to restore waning
      attention of the media; (3) [Appellees] had vested financial
      interests in keeping the passions of their donors inflamed; (4)
      [Appellees] had become enamored of it [if] not addicted to self-
      aggrandizing publicity; and (5) rather than attempting to work
      with those actually tasked with enforcing the law, [Appellees]
      worked actively to undermine it, in order to justify their unceasing
      calls for more radical solutions, which the Legislature had not
      approved in the original law.” (TAC at ¶ 38; SAC at ¶ 37). As
      such, the allegations raised by Appellant do not establish any
      allegedly false statements intending for the publication of the
      statement to result in harm to interests of the other having a
      pecuniary value.

      Furthermore, assuming arguendo that defendants’[/Appellees’]
      statements were intended to result in harm to Appellant, she fails
      to state any pecuniary loss.[] Appellant filed her initial Complaint
      in August of 2012, and she filed various subsequent complaints,
      the most recent being a Third Amended Complaint filed in
      February of 2014. In none of her four (4) complaints does
      Appellant allege a specific amount of monetary loss that she
      suffered as a result of the allegedly false publications despite
      having nearly two years to determine such amount of monetary
      damages. Moreover, as alluded to above, Appellant has even
      indicated that she continues to reside, work, and earn a living in
      Dauphin County, Pennsylvania. (TAC at ¶ 8; SAC at ¶ 8).

Trial Court Opinion, filed 11/2/18, at 13-14.

      Appellant counters the court’s opinion by claiming economic damages

or pecuniary loss are presumed without proof of harm to reputation if actual

malice is shown. See Appellant’s brief at 56, 45, and 63 (citing Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767, 773-774 (1986) for the

proposition that actual malice must be shown to recover either punitive

damages or presumed compensatory damages, i.e., compensatory damages

without proof of harm to reputation). As discussed supra, however, we have

concluded that Appellant’s TAC makes it free and clear of doubt that she will


                                     - 23 -
J-A16038-19



be unable to prove facts legally sufficient to establish Appellees acted with

actual malice in making their comments. Accordingly, we find no merit to

Appellant’s challenge to the court’s orders sustaining Appellees’ preliminary

objections to Appellant’s claim of disparagement.

      Finally, we address Appellant’s contentions that the court erred in

striking the default judgment entered against Theresa Gervase for defective

service and in dismissing the action against her for reasons of collateral

estoppel.

      Regarding the court’s decision to strike default judgment against

Gervase, the trial court relied on either of two bases to strike default judgment

on the Third Amended Complaint.

      The first basis centered on Appellant’s failure to include on the TAC a

notice to defend.    Relevant authority consistently provides that such an

omission renders the complaint, itself, fatally defective. See, e.g., Pa. R.C.P.

No. 1018.1(a) (“Every complaint filed by a plaintiff ... shall begin with a notice

to defend....”); 11 Standard Pennsylvania Practice 2d § 68:6 (2010 ed.) (“A

complaint that omits the notice to defend is facially and fatally defective.”)

(citing Gerber v. Emes, 511 A.2d 193 (Pa.Super. 1986); Clymire v.

McKivitz, 504 A.2d 937 (Pa.Super. 1986)); Mother's Rest., Inc. v.

Krystkiewicz, 861 A.2d 327 (Pa.Super.2004) (holding default judgment

entered by prothonotary void ab initio where plaintiff’s amended complaint did

not contain a notice to defend).




                                      - 24 -
J-A16038-19



       In Mother’s, this Court examined the very issue presently before this

panel, and reasoned as follows:

       Rule 1511(a)[6] of the Pennsylvania Rules of Civil Procedure
       authorizes the prothonotary to enter a judgment of default upon
       the praecipe of the plaintiff where the defendant fails “to plead
       within a required time to a complaint which contains a notice
       to defend.” (Emphasis added). Despite this clear rule, our review
       of the record reveals that the prothonotary entered a default
       judgment even though Restaurant's amended complaint did not
       contain a notice to defend. The Restaurant's failure to include the
       notice to defend constitutes a facial defect of record and renders
       the default judgment void due to the prothonotary's lack of
       authority to enter it. See Clymire [ ] (finding the entry of a
       default judgment facially defective where the defendant failed to
       respond to a complaint which did not contain a notice to defend);
       Gerber [at] 198; Franklin Interiors, Inc. v. Browns Lane,
       Inc., 227 Pa.Super. 252, 323 A.2d 226, 228 (1974) (holding that
       “a default judgment entered where there has not been strict
       compliance with the rules of civil procedure is void”);
       Lewandowski v. Crawford, 208 Pa.Super. 365, 222 A.2d 601,
       601 (1966) (en banc) (holding that the failure to endorse a
       pleading with the proper notice relieves the opposite party of the
       obligation to file a responsive pleading and precludes the entry of
       default judgment); Phillips v. Evans, 164 Pa.Super. 410, 65 A.2d
       423, 424 (1949) (stating the “prothonotary acts in a ministerial
       and not a judicial capacity, and a judgment entered by [the
       prothonotary] upon default or admission, except as provided by
       [the Rules of Civil Procedure] is a nullity without legal effect”).

       ...

       Foremost, Rule 1018.1 of the Pennsylvania Rules of Civil
       Procedure unequivocally states that, “every complaint filed by a
____________________________________________


6 Rule 1511(a) was rescinded on December 16, 2003, effective July 1, 2004,
and has essentially been replaced by a functionally equivalent Rule 1037(b),
which provides in relevant part, “the prothonotary, on praecipe of the plaintiff,
shall enter judgment against the defendant for failure to file within the
required time a pleading to a complaint which contains a notice to defend. . .
.”

                                          - 25 -
J-A16038-19


       plaintiff ... shall begin with a notice to defend.” Pa.R.C.P. 1018.1;
       see Explanatory Note, Pa.R.C.P. 1501 (finding the procedure
       enunciated in Rule 1018.1 applicable to equity actions).
       Additionally, Rule 1026 provides that

              every pleading subsequent to the complaint shall be
              filed within twenty days after service of the preceding
              pleading, but no pleading need be filed unless the
              preceding pleading contains a notice to defend or is
              endorsed with a notice to plead.

       Pa.R.C.P. 1026; see Explanatory Note, Pa.R.C.P. 1501 (finding
       the provisions of Rule 1026 applicable in equity actions).

       In view of the plain language of Rule 1018.1, we find that every
       complaint, including amended complaints, must include Notice to
       Defend. Furthermore, as stated in Rule 1026, Krystkiewicz had
       no obligation to file a responsive pleading since the preceding
       pleading (the Restaurant's amended complaint) did not contain a
       notice to defend. As Krystkiewicz had no duty to respond to the
       complaint under Rule 1026, the prothonotary had no authority to
       enter the default judgment pursuant to Rule 1511. Accordingly,
       we reverse the order of the trial court denying Krystkiewicz's
       “Petition For Relief From Judgment By Default” and remand for
       further proceedings.

Mother's, 861 A.2d at 337–38.

       Such authority compels the same remedy in the present matter.

Accordingly, because this basis, alone, supported striking default judgment

entered against Gervase, we discern no error with the trial court order in this

regard.7

       As for the court’s determination that the Jenny Stephens defamation

judgment in Philadelphia County collaterally estopped Appellant’s claims

____________________________________________


7 We note, additionally, that Appellant failed to provide argument challenging
the court’s decision to strike default judgment for the complaint’s lack of a
“notice to defend.”

                                          - 26 -
J-A16038-19



against Theresa Gervase so as to require dismissal of the action against her,

we find this issue mooted by our own determination that dismissal is required

because the TAC failed to support a conclusion that Appellant could prove

actual malice on Gervase’s part by clear and convincing evidence.

     For the foregoing reasons, therefore, we affirm the order entered below.

     Order affirmed.

     Judge Murray joins the memorandum.

     Judge Lazarus concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2019




                                   - 27 -
