J-A04013-14 NON- PRECEDENTI AL DECI SI ON - SEE SUPERI OR COURT I.O.P. 6 5.3 7 ANDREW HRI SHENKO, LAURA A. COOMBS, v. Appellant I N THE SUPERI OR COURT OF PENNSYLVANI A Appellee No. 676 WDA 2013 Appeal from the Order Dated April 9, 2013 I n the Court of Com m on Pleas of Allegheny County Civil Division at No(s): G.D. 11-020063 BEFORE: BOWES, WECHT, and STABI LE, JJ. MEMORANDUM BY BOWES, J.: FI LED MARCH 1 0, 2 0 1 4 Andrew Hrishenko appeals from the order granting Laura A. Coom bs s m otion for judgm ent on the pleading and dism issing Appellant s com plaint for defam ation and invasion of privacy. We affirm. Mr. Hrishenko and Ms. Coom bs are political rivals. During May of 2011, the parties were em broiled in a struggle to attain the Republican Party s nom ination as the candidate for the Franklin Park Borough Municipal Council. Mr. Hrishenko was an incum bent m em ber of council, and Ms. Coom bs was a challenger. Mr. Hrishenko asserts that Ms. Coom bs distributed two cam paign flyers to voters im m ediately prior to the prim ary election on May 17, 2011, that were critical of his representation. One of the flyers was a letter drafted over Ms. Coom bs s signature. The second
J-A04013-14 flyer was published by Concerned Citizens of Franklin Park ( CCFP ), an organization that Mr. Hrishenko alleged was under Ms. Coom bs s control. As it relates to this appeal, Ms. Coom bs s letter stated, in pertinent part, that Mr. Hrishenko... [ has] continued to pursue a m ulti-year lawsuit against the Borough and Franklin [ Park] Nursery, costing the Borough s taxpayers over $33,000 in legal defense fees, with no resolution in sight. See Com plaint, 3/ 12/ 12, Exhibit A. Sim ilarly, the CCFP handout accused Mr. Hrishenko of: using... the m edia to m ake repeated allegations against other m em bers of Council and other m unicipal support staff, consistently providing false and m isleading inform ation. After looking into these allegations, State and County Officials dism issed them as petty politics... ; and choosing a friend and a work associate as applicants for the Engineer s position. I d. at Exhibit B. On January 17, 2012, Mr. Hrishenko filed a civil com plaint alleging that the two leaflets that Ms. Coom bs allegedly distributed to voters had defam ed him and invaded his privacy. Mr. Hrishenko sought to hold Ms. Coom bs liable for defam ation and defam ation per se. Ms. Coom bs countered with prelim inary objections to the com plaint based upon Mr. Hrishenko s failure to plead sufficient facts to support the contention that she acted with actual m alice, an essential elem ent of a defam ation action involving a public official in Pennsylvania. Ms. Coom bs also asserted that Mr. Hrishenko failed to - 2 -
J-A04013-14 sufficiently plead that she published the CCFP circular. Following argum ent, the m otions judge overruled Ms. Coom bs s objections. Thereafter, on February 5, 2013, Ms. Coom bs filed a m otion for judgm ent on the pleadings. The m otion asserted, inter alia, that (1) the relevant statem ents are non-offensive public facts that are incapable of defam atory m eaning and (2) Mr. Hrishenko had filed a com panion lawsuit against a different defendant and that the trial court overseeing that suit granted the defendant s prelim inary objections and dism issed that case based upon an identical argum ent, i.e., that the sam e statem ents that are at issue herein are incapable of defam atory m eaning. On April 9, 2013, the trial court granted Ms. Coom bs s m otion and dism issed Mr. Hrishenko s lawsuit with prejudice. This tim ely-filed appeal followed. Mr. Hrishenko com plied with the court s directive to file a concise statem ent of errors com plained of on appeal pursuant to Pa.R.A.P. 1925(b). Mr. Hrishenko presents the following questions for review: I. Did the trial court err in invading the province of the jury and im properly concluding that the defendant s false statem ents are incapable of defam atory m eaning where defendant m ade statem ents that accused plaintiff of crim inal conduct, im puted business m isconduct in his role as a public official, and otherwise grievously fractured his standing in the com m unity of respectable society? I I. Did the trial court err in overruling its own prior ruling (by a different judge) that the plaintiff stated a claim for defam ation when it rejected the defendant s prelim inary objections to the com plaint? - 3 -
J-A04013-14 I I I. Did the trial court err in considering, and then following, its opinion from another case on the defendant s m otion for judgm ent on the pleadings? I V. Should leave to am end be granted to cure any perceived defects in the plaintiff s com plaint? Appellant s brief at 3-4. Our review of an order granting a m otion for judgm ent on the pleadings is de novo. Cubler v. TruMark Financial Credit Union, 83 A.3d 235, 239 (Pa.Super. 2013). We apply the identical standard of review of the m otion as the trial court. I d. We will affirm the grant of such a m otion only when the m oving party's right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise. Colem an v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa.Super. 2012). Our consideration is confined to the pleadings and relevant exhibits. Cubler, supra at 239. We m ust accept as true all well pleaded statem ents of fact, adm issions, and any docum ents properly attached to the pleadings presented by the party against whom the m otion is filed, considering only those facts which were specifically adm itted. I d. I n Pennsylvania, 42 Pa.C.S. 8343 outlines the burden of proof in a defam ation case as follows: ( a) Burden of plaintiff.--i n an action for defam ation, the plaintiff has the burden of proving, when the issue is properly raised: (1) The defam atory character of the com m unication. (2) I ts publication by the defendant. - 4 -
J-A04013-14 (3) I ts application to the plaintiff. (4) The understanding by the recipient of its defam atory m eaning. (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. 42 Pa.C.S. 8343. (7) Abuse of a conditionally privileged occasion Before a statem ent can be considered libelous or slanderous, the trial court m ust m ake the threshold determ ination of whether the com m unication can be construed to have a defam atory m eaning. Baker v. Lafayette College, 532 A.2d 399, 402 (Pa. 1987). Thus, it is for the court to determ ine whether a statem ent is capable of a defam atory m eaning. I f the court concludes that the publication is not capable of defam atory m eaning, the case should be dism issed. MacElree v. Philadelphia New spapers, I nc., 674 A.2d 1050, 1053 ( Pa. 1996). Additionally, where, as here, the plaintiff is a public figure, he m ust prove that the statem ent was m ade with actual m alice. 1 Manning v. W PXI, I nc., 886 A.2d 1137 (Pa.Super. 2005). I n Manning, we reiterated that actual m alice is a rigorous, if not im possible, burden to m eet in m ost 1 During oral argument before this Court, Mr. Hrishenko conceded that he was a public figure when the statem ents were published. - 5 -
J-A04013-14 circum stances. I d. at 1143 (citation om itted). We explained it as a fault standard, predicated on the need to protect the public discourse under the First Am endm ent from the chill that m ight be fostered by less vigilant lim itations on defam ation actions brought by public officials. I d. (citation om itted). We stressed that actual m alice could be construed to forbid im position of liability even in those instances where the defendant negligently publishes false, defam atory statem ents about a public figure or public official. I d. (citation om itted). At the outset, we observe that Mr. Hrishenko s final argum ent regarding the am endm ent of his civil com plaint is waived because it was not raised in the trial court or included in the court-ordered Rule 1925(b) statem ent. See Pa.R.A.P. 302 ( I ssues not raised in the lower court are waived and cannot be raised for the first tim e on appeal. ); Pa.R.A.P. 1926(b)(4)(vii) ( Issues not included in the Statem ent and/ or not raised in accordance with the provisions of this paragraph (b)(4) are waived ). Thus, to the extent that Mr. Hrishenko asserts that the trial court erred in failing to grant him leave to am end his com plaint, we do not address that argum ent herein. After a thorough review of the parties briefs, pertinent law, and the certified record, we conclude that the Honorable Alan Hertzberg cogently addressed Mr. Hrishenko s rem aining argum ents in his well-reasoned opinion - 6 -
J-A04013-14 entered on June 19, 2013, and we affirm based on the reasoning expressed therein. Order affirm ed. Judgm ent Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/ 10/ 2014-7 -