J-A07043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT C. KNAPP AND DIANE S. KNAPP,             IN THE SUPERIOR COURT OF
HIS WIFE                                              PENNSYLVANIA

                          Appellants

                     v.

DOUGLAS ADAMS

                          Appellee                  No. 1523 WDA 2014


                     Appeal from the Order August 18, 2014
                In the Court of Common Pleas of Beaver County
                       Civil Division at No(s): 11792-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                           FILED OCTOBER 2, 2015

      Appellants, Robert C. Knapp and Diane S. Knapp, appeal from the

August 18, 2014 order granting summary judgment in favor of Appellee,

Douglas Adams in this defamation action. After careful review, we affirm.

      The trial court has set forth the relevant facts and procedural history,

as follows.

                    [Appellant], Robert Knapp, is a medical doctor
              with a practice concentrated in Endocrinology, with
              his   office  located    in  Bridgewater   Borough.
              [Appellee], Douglas Adams, is the Chief of Police of
              Bridgewater Borough. Dr. Knapp claims that Chief
              Adams is liable to him for an alleged defamatory
              comment the Chief made during an interview that
              aired on a WPXI news broadcast, on October 27,
              2009, regarding indecent assault charges that the
              police department filed against Dr. Knapp.
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                 By way of background, the Bridgewater Police
          first received a complaint from one of Dr. Knapp’s
          female patients in July 2009. The patient claimed
          Dr. Knapp had inappropriate physical contact with
          her during a medical exam. A few months later, the
          police filed formal criminal charges of indecent
          assault against Dr. Knapp based on the allegations of
          this female patient.

                 A few days after the formal charges were filed,
          on October 1, 2009, WPXI interviewed the patient
          regarding her allegations and published a news
          article on this story. Following this news report,
          several other women came forward reporting similar
          incidents with Dr. Knapp. Specifically, from October
          2, 2009 through October 26, 2009, the Bridgewater
          Police interviewed approximately 24 of Dr. Knapp’s
          patients. Formal criminal charges were filed by the
          Bridgewater Police on behalf of some of these
          women on October 26, 2009. The criminal charges
          all related to claims that Dr. Knapp had indecent
          physical contact with these patients during their
          medical exams.

                After the additional formal charges were filed
          against Dr. Knapp, on October 27, 2009, WPXI
          interviewed Chief Adams in his capacity as
          Bridgewater’s Chief of Police. That same day, the
          news station televised a report during the 5:00
          news, at which time the station aired portions of
          Chief Adams interview.

                Specifically, the relevant segment begins with
          a voiceover of the reporter stating: “First, we
          uncovered all of the police reports that are piling up
          against a well-known Beaver County doctor. Then,
          we were in place when Bridgewater physician, Robert
          Knapp, along with his attorney, appeared before a
          Beaver County magistrate to answer charges of
          indecent assault against five of his female patients.”

                This voiceover was accompanied by video
          footage of multiple criminal complaints against Dr.
          Knapp being set down in succession. Dr. Knapp’s

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           attorney then made a brief statement, and the
           voiceover came back on giving more background
           details to the story.

                 The televised report next showed Chief Adams
           making the statement at issue in this litigation: “In
           my eyes, he definitely crossed the line. He’s a—he’s
           a predator.” This single statement forms the basis of
           Dr. Knapp’s defamation claim against Chief Adams,
           and was the only alleged defamatory statement
           contained in the pleadings.

                 Chief Adams statement also appeared on the
           websites of WPXI and the Beaver County Times, and
           on the front page of the Beaver County Times print
           version.     These written news reports also
           summarized the nature of the allegations against Dr.
           Knapp, and noted that a number of female patients
           had reported similar allegations to the police.

                 Approximately one year later, on October 26,
           2010, following his acquittal on the criminal indecent
           assault charges, Dr. Knapp and his wife, filed an
           action in the United States District Court for the
           Western District of Pennsylvania asserting claims of
           defamation, violation of federal constitutional rights,
           and loss of consortium. [On November 2, 2010,
           Appellants’ amended their complaint.] The Federal
           Court dismissed all of the federal claims with
           prejudice, and declined to exercise jurisdiction over
           the state law claims.

Trial Court Opinion, 8/18/14, at 1-4 (footnote omitted).

     Subsequently, on October 6, 2011, Appellants filed a praecipe to

transfer the matter from federal court to the Court of Common Pleas

pursuant to 42 Pa.C.S.A. § 5103. On January 18, 2013, Chief Adams filed

an answer and new matter in response to Appellants’ November 2, 2010

amended complaint which alleged, inter alia, claims of defamation and loss


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of consortium.    Appellants filed an answer to Chief Adams new matter on

February 4, 2013. Thereafter, on March 7, 2014, Chief Adams filed a motion

for summary judgment. In his motion Chief Adams argued he was entitled

to summary judgment on the bases: (1) he prefaced the statement by the

words “in my eyes” signaling it was “an expression of his opinion”, (2) he is

entitled to immunity as public official, and (3) he is entitled to summary

judgment on the loss of consortium claim on the basis that Dr. Knapp’s

defamation claim is meritless. Chief Adams’ Motion for Summary Judgment,

3/7/14, at 4-5, ¶¶ 13-15.     A hearing was held on April 16, 2014, and on

August 18, 2014, the trial court granted Chief Adams’ motion for summary

judgment.

       On September 15, 2014, Appellants filed a timely notice of appeal, and

on September 16, 2014, the trial court filed an order stating its August 18,

2014    memorandum      opinion   shall   serve   as   its   opinion   pursuant   to

Pennsylvania Rule of Appellant Procedure 1925(a).             Said order did not

require Appellants to file a concise statement of errors complained of on

appeal pursuant to Rule 1925(b).          Nevertheless, on October 3, 2014,

Appellants filed a Rule 1925(b) statement.

       On appeal, Appellants raise the following issues for our review.

             [1.] Whether the trial court erred as a matter of
             law when it ruled that Adams’ statement “in my eyes
             … he’s a predator” operated as a defense to the
             claim of defamation because the otherwise
             defamatory statement was preceded with signal
             words which is not in accord to the precedent set

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J-A07043-15


            forth in Milkovich v. Lorain Journal Co., 497 U.S.
            1, 18-19 (U.S. 1990)?

            [2.] Whether the trial court erred as a matter of
            law when it refused to consider the entire statement
            made by Adams in the same news broadcast as part
            of the context in which the beginning of his
            statement was made pursuant to Baker v.
            Lafayette College, 532 A.2d 399, 402 ([Pa.]
            1987)?

            [3.] Whether the trial court erred as a matter of
            law, and also abused its discretion, when it
            determined on summary judgment that the
            statements made by Adams were incapable of
            defamatory meaning, when those statements were
            false and derogatory, and provably lowered
            [Appellant Dr. Knapp]’s personal and professional
            reputation in the eyes of the community?

Appellants’ Brief at 4.

      We begin by noting our well-settled standard of review.

            “[O]ur standard of review of an order granting
            summary judgment requires us to determine
            whether the trial court abused its discretion or
            committed an error of law[,] and our scope of review
            is plenary.” Petrina v. Allied Glove Corp., 46 A.3d
            795, 797–798 (Pa. Super. 2012) (citations omitted).
            “We view the record in the light most favorable to
            the nonmoving party, and all doubts as to the
            existence of a genuine issue of material fact must be
            resolved against the moving party.”        Barnes v.
            Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing
            Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736
            (Pa. Super. 2009) (citation omitted). “Only where
            there is no genuine issue as to any material fact and
            it is clear that the moving party is entitled to a
            judgment as a matter of law will summary judgment
            be entered.”    Id. The rule governing summary
            judgment has been codified at Pennsylvania Rule of
            Civil Procedure 1035.2, which states as follows.


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J-A07043-15


               Rule 1035.2. Motion

               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

                     (1) whenever there is no genuine issue
                     of any material fact as to a necessary
                     element of the cause of action or defense
                     which could be established by additional
                     discovery or expert report, or

                     (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.

                 “Where the non-moving party bears the
          burden of proof on an issue, he may not merely rely
          on his pleadings or answers in order to survive
          summary judgment.” Babb v. Ctr. Cmty. Hosp.,
          47 A.3d 1214, 1223 (Pa. Super. 2012) (citations
          omitted), appeal denied, 65 A.3d 412 (Pa. 2013).
          Further, “failure of a non-moving party to adduce
          sufficient evidence on an issue essential to his case
          and on which he bears the burden of proof
          establishes the entitlement of the moving party to
          judgment as a matter of law.” Id.

                     Thus, our responsibility as an appellate
               court is to determine whether the record either
               establishes that the material facts are
               undisputed or contains insufficient evidence of
               facts to make out a prima facie cause of
               action, such that there is no issue to be
               decided by the fact-finder. If there is evidence

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J-A07043-15


                  that would allow a fact-finder to render a
                  verdict in favor of the non-moving party, then
                  summary judgment should be denied.

            Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d
            896, 898 (Pa. Super. 2011), quoting Jones v.
            Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007)
            (internal citations omitted).

Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013).

      Instantly, we recognize that each of Appellants’ three issues are

interrelated. First, Appellants asserts the trial court erred in holding that the

“statement made by Adams were opinions and, as such, were not subject to

defamatory meaning.”     Appellants’ Brief at 15. Second, Appellants argues

the “trial court erred when it refused to consider the other factual allegations

in Adams’ statement made in the same news broadcast as part of the

context in which the alleged defamatory statement was made.” Id. at 16.

Finally, Appellants argues the “statement made by Adams is not capable of

defamatory meaning.” Id. at 19. Accordingly, we begin by examining Chief

Adams’ statement to determine if the trial court abused its discretion in

granting summary judgment on the basis that there was no issue of material

fact regarding its defamatory meaning.

      “Defamation, … is the tort of detracting from a person’s reputation, or

injuring a person’s character, fame, or reputation, by false and malicious

statements.”   Joseph v. Scranton Times, L.P., 959 A.2d 322, 334 (Pa.

Super. 2008) (citation omitted), appeal dismissed, 982 A.2d 1223 (Pa.

2009). In a defamation case, the plaintiff first bears the burden of proving


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J-A07043-15


the cause of action, if properly pled, the defendant must then prove the

following elements.

           § 8343. Burden of proof

           (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.

           (b) Burden of defendant.--In an action for
           defamation, the defendant has the burden of
           proving, when the issue is properly raised:

                 (1)  The    truth         of    the      defamatory
                 communication.

                 (2) The privileged character of the occasion on
                 which it was published.

                 (3) The character of the subject matter of
                 defamatory comment as of public concern.

42 Pa.C.S.A. § 8343.


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J-A07043-15


     Instantly, Appellants argue the trial court erred as a matter of law in

finding that Chief Adams statement was an opinion, and therefore was not

defamatory.    Appellants argue “the trial court relied on the flawed

assumption that, if a potentially defamatory statement is preceded by

certain signaling words, the statement is a non-actionable opinion.”

Appellants’ Brief at 15.   Appellants further argues that in Milkovich v.

Loarin Journal Co., 497 U.S. 1 (1990), the United States Supreme Court

held that words signaling an opinion, created “at best, the rebuttable

presumption that the statement is intended by the speaker to be an

opinion.” Id. at 16.

     In Milkovich, the Supreme Court held that there is no “wholesale

defamation exemption for anything that might be labeled ‘opinion.’”

Milkovich, supra at 18. The Court clarified as follows.

           If a speaker says, “In my opinion John Jones is a
           liar,” he implies a knowledge of facts which lead to
           the conclusion that Jones told an untruth. Even if
           the speaker states the facts upon which he bases his
           opinion, if those facts are either incorrect or
           incomplete, or if his assessment of them is
           erroneous, the statement may still imply a false
           assertion of fact. Simply couching such statements
           in terms of opinion does not dispel these
           implications; and the statement, “In my opinion
           Jones is a liar,” can cause as much damage to
           reputation as the statement, “Jones is a liar.”

                                     …

           [W]here a statement of “opinion” on a matter of
           public concern reasonably implies false and
           defamatory facts regarding public figures or officials,

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J-A07043-15


              those individuals must show that such statements
              were made with knowledge of their false implications
              or with reckless disregard of their truth. Similarly,
              where such a statement involves a private figure on
              a matter of public concern, a plaintiff must show that
              the false connotations were made with some level of
              fault[.]

Id. at 18-19, 21.

       However, our Supreme Court cautioned as follows.

              A critical factor in determining whether a
              communication is capable of defamatory meaning …
              is the nature of the audience hearing the remarks.
              [O]pinion without more does not create a cause of
              action in libel. Instead, the allegedly libeled party
              must demonstrate that the communicated opinion
              may reasonably be understood to imply the
              existence of undisclosed defamatory facts justifying
              the opinion.

Baker v. Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987) (citations and

quotation marks omitted).

       Applying the aforementioned standards to the instant matter, we

conclude the trial court did not abuse its discretion or commit an error of law

in granting summary judgment.1 At the April 16, 2014 summary judgment

____________________________________________


1
  We note that the law relied upon by the trial court regarding the higher
standard in matters of public concern would only apply if the parties in this
case were in inverse positions, i.e. had Appellant made defamatory
statements against Chief Adams, a public figure. See Trial Court Opinion,
8/18/14, at 6. Accordingly, Lewis v. Phila. Newspapers, Inc., 833 A.2d
185 (Pa. Super. 2003), appeal denied, 844 A.2d 553 (Pa. 2004), and the
trial court’s reasoning based on the facts therein, are inapplicable.
Nevertheless the trial court’s subsequent analysis accurately reflects the law
of this Commonwealth, and we agree with its ultimate resolution. See
(Footnote Continued Next Page)


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J-A07043-15


hearing, counsel for Chief Adams, Karin Romano, Esquire (Attorney

Romano), argued as follows.2

             As is reflected in the, the footage of the news report,
             the statement was prefaced by a voice over, which
             referred to a number of police reports which were
             filed against Dr. Knapp.

                   There was a statement that charges of
             indecent assault had been filed on behalf of five of
             his patients. There was a statement that Dr. Knapp
             was contesting the charges and maintained that he
             would be exonerated, and immediately proceeding
             [sic] the statement, there was a voice over that
             since early October, six women had accused Dr.
             Knapp of molesting them during appointments.

                   It’s at this point in the broadcast that Chief
             Adams is shown stating, “In my eyes he definitely
             crossed the line. He’s a predator,” and that’s the
             defamatory statement that’s alleged in the
                       _______________________
(Footnote Continued)

generally Trial Court Opinion, 8/18/14, at 6-8. Further, although not the
basis for the trial court’s ruling, McKibben v. Schmotzer, 700 A.2d 484,
(Pa. Super. 1997) held that an exemption for “the doctrine of absolute
privilege for high public officials” is “unlimited and exempts a high public
official from all civil suits for damages arising out of false defamatory
statements and even from statements or actions motivated by malice,
provided the statements are made or the actions are taken in the course of
the official’s duties or powers and within the scope of his authority, or as it is
sometimes expressed, within his jurisdiction.” Id. at 488. Further, the
McKibben Court noted that “the parameters establishing ‘high public official’
status would be delineated by the judiciary on a case-by-case basis.” Id.
Nevertheless, we need not reach this exception as we conclude that the trial
court did not commit an error of law or abuse its discretion in granting
summary judgment on the basis that Chief Adams’ statement was an opinion
based on disclosed facts, and therefore no issue of material fact exists.
2
  Appellants’ Brief in Support of Summary Judgment contains a DVD copy of
the full segment which aired on October 27, 2009. See Appellants’ Brief in
Support of Summary Judgment, 3/7/14, at Exhibit K.



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J-A07043-15


          pleadings, and that Dr. Knapp himself testified as the
          basis of his claim.

                Following the statement in the news report,
          there’s a voice over that the Bridgewater Chief of
          Police told me the women say Knapp groped,
          fondled, and kissed them at some time during their
          exams, and immediately following this, Chief Adams
          himself is shown stating, “Indecent conduct, you
          know, just different unethical touching of their body
          parts that shouldn’t have happened for the type of
          exam they went in for.”

                  In opposing summary judgment, [Appellant]
          has focused primarily on this later statement, which
          I’ll refer to as the unethical touching statement, and
          for brevity I’ll refer to the former statement as the
          predator statement, and [Appellant] is now
          contending that the unethical touching statement is
          defamatory in itself.

                We think it’s clear from the context of the
          broadcast, as, of course, reflected in the video
          footage, that Chief Adams was simply describing the
          nature of the allegations that were made when he
          referred to the indecent contact and unethical
          touching, and those allegations are also reflected in
          the police reports that have been submitted in our
          appendix as Exhibt H and Exhibit I.

                The other major problem with [Appellant]’s
          argument is that the later statement regarding
          unethical touching and being unrelated to the type of
          examination they went in for is that that statement
          was never raised at any point in the proceedings
          until now, their brief in opposition to summary
          judgment.




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J-A07043-15


N.T, 4/16/14, at 6-8.3

       In concluding summary judgment was proper, the trial court reasoned

as follows.

                    First, the statement was prefaced with the
              words “in my eyes,” which signifies an opinion.
              Additionally, the statement was made in response to
              an interview by WPXI regarding multiple allegations
              against Dr. Knapp. The broadcast states as many as
              30 women made allegations of inappropriate
              touching by Dr. Knapp, and criminal charges had
              been filed on behalf of some of those women on the
              basis of those allegations. These reports summarize
              the nature of the allegations against Dr. Knapp, and
              note that a number of the female patients had
              reported similar allegations to the police.

                    The [trial c]ourt believes the factual basis
              of Chief Adams’ statement was disclosed in the
              police reports, criminal charges, and both the
              televised and written news reports. There was
____________________________________________


3
   Appellant’s counsel acknowledged to the trial court that Dr. Knapp’s
complaint and subsequent arguments are based solely on the “predatory
statement.” See N.T., 4/16/14, at 19 (regarding the “unethical touching”
counsel stated “I never said that was defamation. … I just said the predator
statements []”).    Therefore, our review is confined solely to the first
statement. Further, Chief Adams Brief in Support of Motion for Summary
Judgment contains the criminal complaints filed prior to Chief Adams
interview, where the complainants assert allegations of inappropriate
touching by Dr. Knapp which were the basis of Chief Adams subsequent
statement. See Brief in Support of Motion for Summary Judgment, 3/7/14,
at 3, n.2 (“One such patient reported that [Appellant] placed his hands on
her thighs, spread her legs, and told her that she was beautiful and could be
a model. … Several patients reported that [Appellant] had them in a seated
position during breast exams, which reportedly consisted of him grabbing or
squeezing their nipples, or ‘caressing’ their breasts. … Several patients
reported [Appellant] kissed them or attempted to do so, and one patient
reported that [Appellant] initiated intercourse with her, which thereafter
occurred on an ongoing basis during her appointments[]”).



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J-A07043-15


            no suggestion in the broadcast that Chief
            Adams relied on hidden facts or false facts to
            form his opinion. In fact, the news broadcast
            even displayed       images of the criminal
            complaints     against     Dr.  Knapp     before
            broadcasting Chief Adams’ statement. Chief
            Adams’ statement was clearly based on the
            numerous reports and charges against Dr.
            Knapp, all of which were disclosed. Thus, as a
            matter of law, the [trial c]ourt finds Chief
            Adams’ statement was an opinion, and the
            factual basis for the opinion was disclosed.

Trial Court Opinion, 8/18/14, at 7-8 (emphasis added).

      The record supports the trial court’s conclusion.   As trial counsel for

Chief Adams noted, “the statement of opinion by Chief Adams is surrounded

by factual basis for that opinion.”    N.T., 4/16/14, at 10.   Further, counsel

correctly noted that the broadcast stated “that as many as 30 women had

made allegations to this effect of inappropriate physical conduct of physical

conduct or physical contact during medical exams, and that criminal charges

had been filed on behalf of five of those women on the basis of those

allegations.” Id. at 10-11; see also Chief Adams Brief in Support of Motion

for Summary Judgment, 3/17/14, at Exhibit H and I. Additionally, previous

news reports had covered the pending criminal allegations against Appellant.

Id. at Exhibit D, “Woman Speaks to WPXI, Accuses Doctor of Groping Her,”

10/1/09, at 1 (wherein a complainant told the media Dr. Knapp straddled

her while she was lying on her stomach, rubbed her upper back, squeezed

her buttocks, pulled her head towards his, and tried to kiss her).




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     The aforementioned evidence supports the trial court’s conclusion that

Chief Adams’ statement, “[i]n my eyes, he definitely crossed the line. He’s a

– he’s a predator[,]” was an opinion of Chief Adams based on facts known to

him and the public at the time said statement was made.          See Baker,

supra. Accordingly, there was no issue of material fact for a jury to decide.

     Based on the foregoing, we conclude the trial court did not abuse its

discretion or commit an error of law when it denied Appellants’ motion for

summary judgment.      See Cadena, supra.       Accordingly, the trial court’s

August 18, 2014 order is affirmed.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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