Weirton Med. Ctr., Inc. v. Introublezone, Inc.

193 A.3d 967

WEIRTON MEDICAL CENTER, INC., Appellant

v.INTROUBLEZONE, INC., d/b/a Introublezone Productions, a Wyoming Corporation, and Paul Schneider and Lynda Schneider, Husband and Wife, Appellees

No. 952 WDA 2017

Superior Court of Pennsylvania.

Argued February 27, 2018

Filed July 18, 2018

Joseph A. Del Sole, Pittsburgh, for appellant.

Vincent J. Restauri, Jr., Cranberry Township, for appellees.

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

OPINION BY STRASSBURGER, J.:

Weirton Medical Center, Inc. (WMC) appeals from the order entered on June 13, 2017, which sustained preliminary objections in the nature of a demurrer to the complaint it filed against Introublezone, Inc. d/b/a Introublezone Productions (ITZ), Paul Schneider, and Lynda Schneider (the Schneiders) (collectively, Appellees). Upon review, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

We provide the following background based upon the facts alleged in the complaint. This case involves the actions of a licensed plastic surgeon, Dr. Craig Richard Oser. WMC extended staff privileges to him in December of 2008, and between November 1, 2009 and September 30, 2014, Dr. Oser was an employee of WMC. See Complaint, 3/23/2017, at ¶ 8. According to WMC, Dr. Oser and Lynda Schneider entered into an agreement, "pursuant to which Ms. Schneider agreed to represent and advise Dr. Oser in matters including, but not limited to, the development of a reality television show." Id. at ¶ 9. That reality show would be called "Drastic Plastic" and feature Dr. Oser. It "was intended to highlight the most salacious elements of Dr. Oser's practice at WMC. Among other things, the production dubbed Dr. Oser ‘The Vagician’ because of his specialization in labiaplasty and vaginal reconstruction." Id. at ¶ 11.

WMC contends that on June 14, 2014, "a ‘sizzle re[e]l’ for Drastic Plastic (the ‘Video’) was filmed at WMC's Medical Office Building in Weirton, West Virginia." Id. at ¶ 12. WMC alleged that the "Video was commissioned with the intent of submitting it to persons and entities in the entertainment industry that might be interested in producing Drastic Plastic." Id. According to WMC, Ms. Schneider wrote the script for the Video, and the Schneiders "directed all aspects of filming." Id. at ¶ 13.

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

Id. at ¶ 14.

Attached to the complaint is Ms. Schneider's written outline of the Video. According to WMC, it did not consent or authorize the use of its facilities for this purpose. "After filming, Ms. Schneider edited the Video and sent it to Dr. Oser for his review and approval. Thereafter, the Video was submitted to ITZ for publication." Id. at ¶ 17.

Pursuant to an agreement between ITZ and Dr. Oser, "ITZ was granted the exclusive right to pitch and submit Drastic Plastic" to those in the entertainment industry interested in creating this reality show. Id. at ¶ 19. "As part of its efforts to promote Drastic Plastic, [Appellees] posted the Video on the online video service Vimeo, as well as on Dr. Oser's website and Facebook page." Id. at ¶ 22.

According to WMC, the "graphic nature of the Video, its objectification of women, the careless way in which patient records are displayed, and the contemptuous way it portrays the residents of West Virginia adversely affects WMC's reputation." Id. at ¶ 27. Based on the foregoing allegations, WMC asserted claims against Appellees for defamation and false designation of origin/false advertising pursuant to the Lanham Act, 15 U.S.C. § 1125. In addition, WMC asserted a claim against the Schneiders for trespass for their actions in entering WMC facilities without proper authorization.

On May 1, 2017, Appellees filed preliminary objections to the complaint. Specifically, they asserted preliminary objections in the nature of a demurrer to the defamation and Lanham Act claims. Additionally, Appellees asserted "the trespass claim fails because Dr. Oser had apparent authority to permit entry and filming on the property, and the filming of the [V]ideo on the property did not physically damage the property." Preliminary Objections, 5/1/2017, at 1 (unnumbered).

WMC filed a response, and the trial court heard argument on this motion on June 1, 2017. According to the trial court, WMC's defamation claim was based upon the contents of the Video, but WMC "had not taken the time to transcribe that [V]ideo into a written document." Trial Court Opinion, 6/13/2017, at 2. The trial court then requested WMC send it the Video, and WMC complied. The trial court watched the Video "three times" and found "nothing defamatory. Poor taste, yes; Defamation—No." Id.

According to the trial court,

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

Id. at 3. The trial court also concluded that "the other claims, a fortiori, fail as well." Id. Thus, on June 13, 2017, the trial court dismissed the complaint with prejudice.

WMC timely filed a notice of appeal. The trial court did not issue an order pursuant to Pa.R.A.P. 1925(b), but directs this Court to rely on its June 13, 2017 memorandum pursuant to Pa.R.A.P. 1925(a).

On appeal, WMC contends first that the trial court committed reversible error by viewing the Video when it was not attached originally to the complaint. WMC's Brief at 10-13. According to WMC, the trial court's actions, "where it required WMC to provide it with evidence outside the four corners of the [c]omplaint, and used its own review of that evidence as the basis for determination[,]" were "contrary to the law of this Commonwealth regarding the standard of review, and transformed the trial court's role at the preliminary objection stage from that of a gatekeeper to a finder of fact." Id. at 10.

We consider the following in reviewing this claim.

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

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

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

Barton v. Lowe's Home Ctrs., Inc. , 124 A.3d 349, 354 (Pa. Super. 2015) (quoting Weiley v. Albert Einstein Med. Ctr. , 51 A.3d 202, 208–09 (Pa. Super. 2012) (citations omitted) ).

With respect to a claim for defamation, "[i]nitially, it is the function of the court to determine whether the communication complained of is capable of a defamatory meaning." Krajewski v. Gusoff , 53 A.3d 793, 802 (Pa. Super. 2012). "A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Id.

Here, the trial court could not determine whether the Video was "capable of defamatory meaning" without viewing the Video. See id. As the party asserting the Video was defamatory, WMC should have attached the Video to the complaint. However, it did not.¹ WMC's now complaining that the trial court should not have watched a video it should have provided in the first place is disingenuous. Thus, we conclude the trial court was within its rights to request and view the Video to make a ruling on these preliminary objections.

In any event, even if the trial court erred by requesting and watching the Video, the trial court was correct in concluding that WMC did not establish a prima facie case for defamation. Defamation is codified at 42 Pa.C.S. § 8343, which sets forth the following in relevant part.

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

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be applied to the plaintiff.

(6) Special

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