Lane, A. v. CBS Broadcasting

J. A20007/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ALYCIA LANE, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

CBS BROADCASTING, INC., : No. 1258 EDA 2013

T/A KYW-TV; MICHAEL COLLERAN AND :

LAWRENCE MENDTE :

Appeal from the Order, March 20, 2013,

in the Court of Common Pleas of Philadelphia County

Civil Division at No. September Term, 2008, No. 03425

ALYCIA LANE : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

CBS BROADCASTING INC., :

T/A KYW-TV; MICHAEL COLLERAN, :

LAWRENCE MENDTE :

:

APPEAL OF: LAWRENCE MENDTE, : No. 1416 EDA 2013

:

Appellant :

Appeal from the Order Dated May 16, 2011,

in the Court of Common Pleas of Philadelphia County

Civil Division at No. September Term, 2008, No. 03425

J. A20007/14

ALYCIA LANE : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

CBS BROADCASTING, INC. :

T/A KYW-TV, MICHAEL COLLERAN, :

LAWRENCE MENDTE :

:

APPEAL OF: CBS BROADCASTING INC. :

AND MICHAEL COLLERAN, : No. 1417 EDA 2013

:

Appellant :

Appeal from the Order Dated May 16, 2011,

in the Court of Common Pleas of Philadelphia County

Civil Division at No. September Term, 2008, No. 03425

BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 05, 2015

This is a consolidated appeal in the defamation action brought by

plaintiff, Alycia Lane (“Lane”). We reverse in part, affirm in part, and

remand for further proceedings.

The underlying facts of this matter may be briefly summarized as

follows:

Plaintiff Alycia Lane was employed by CBS as a news

anchor from September 2003 to January 2008. See

Plaintiff’s Amended Complaint, ¶ 9. CBS also

employed Defendant Lawrence Mendte (“Mendte”) as

a news anchor until approximately June 2008.

Beginning in 2006, Mendte began illegally accessing

both the personal and work email accounts of

Plaintiff.[Footnote 1] Mendte used a device known

as a “KeyCatcher” to obtain the passwords to

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Plaintiff’s email accounts. After acquiring the

passwords, he repeatedly accessed Plaintiff’s email

accounts without her authorization. Mendte

accessed Plaintiff’s passwords and emails when he

was both at work and at home. See Mendte

Deposition, p. 115-117; Government Criminal

Information, p. 3-17. He then would “leak” some of

the information he read in Plaintiff’s emails to the

press and the information would appear in numerous

news stories. See Amended Complaint, 18, 23, 25,

28; Mendte Deposition, p. 152-153, 157, 167-168,

207. Plaintiff alleges that Mendte accessed her email

accounts without her authorization over 7,000 times

throughout a two-year time period. See Amended

Complaint, ¶¶ 14, 17. Mendte eventually pled guilty

in a criminal case against him to intentionally

accessing Plaintiff’s email accounts without her

authorization.[Footnote 2]

[Footnote 1] CBS provided to its

employees, including Plaintiff, a “work”

email account. The Plaintiff also had two

personal email accounts -- one with

Apple Computer (“.mac account”) and

one with Yahoo!. See Amended

Complaint, ¶11.

[Footnote 2] Specifically, Mendte pled

guilty to violating federal criminal statute

18 U.S.C. §§1030(a)(2)(C) and

1030(c)(2)(B)(ii).

Plaintiff claims that she repeatedly informed

CBS of her belief that somebody was hacking into

her email accounts. Despite her repeated

complaints, Plaintiff alleges that CBS did not perform

a reasonable investigation into the hacking. Plaintiff

filed the present lawsuit in September 2008 against,

inter alia, CBS and Mendte. In Count VII of the

Amended Complaint, Plaintiff brought a claim for

negligence against CBS. Plaintiff claims that CBS

had a duty to protect Plaintiff from Mendte’s criminal

conduct and to investigate the allegation of criminal

conduct made by Plaintiff. See Plaintiff’s Omnibus

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Opposition to Summary Judgment, p. 65. Plaintiff

alleges that as a direct and proximate result of CBS’

negligence, Plaintiff suffered reputational damage

and financial losses arising from that reputational

damage. See Plaintiff’s Amended Complaint, ¶ 160.

CBS is now moving for summary judgment on

Plaintiff’s negligence claim.

Trial court opinion, 5/16/11 at 1-2.

Lane also brought a claim for defamation against CBS based upon the

following January 8, 2008 statement, read on the air:

CBS 3 announced today that Alycia Lane has

been released from her contract. Lane is facing a

charge of assaulting a police officer in New York last

month, a charge she categorically denies.

CBS 3 President and General Manager Michael

Colleran issued the following statement, it says

quote:

After assessing the overall impact

of a series of incidents resulting from

judgments she has made, we have

concluded that it would be impossible for

Alycia to continue to report the news as

she, herself, has become the focus of so

many news stories. We wish to make

clear that we are not prejudging the

outcome of the criminal case against

Alycia that is pending in New York. We

understand that Alycia expects to be fully

vindicated in that proceeding. We hope

that is the case and we wish her the best

in all her future endeavors.

On December 12, 2012, the Honorable Allan L. Tereshko dismissed all

claims against CBS, and some claims against Mendte, based on spoliation of

evidence. Specifically, Judge Tereshko found that Lane had intentionally

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disposed of her 2005 Apple G4 laptop computer (“the 2005 Laptop”),

thereby depriving CBS and Mendte of any meaningful defense.

Judge Tereshko determined that Lane’s case was overwhelmingly based

upon documents originated and stored in her 2005 Laptop. Also on

December 12, 2012, Judge Tereshko granted summary judgment for CBS on

Lane’s claims for defamation and false light. On March 20, 2013, the

remaining claims against Mendte were dismissed based on spoliation.

We will address Lane’s claims on appeal first. She has raised the

following issues for our review:

1. Utilizing “strict scrutiny,” did the trial court

abuse its discretion in dismissing Plaintiff’s

claims based upon spoliation?

2. Did the trial court err and violate the

coordinate jurisdiction rule in reversing the

denial of the CBS motion for summary

judgment as to defamation and false light?

3. Did the trial court abuse its discretion in

excluding the expert testimony of Frank Keel

as to defamation?

4. Did the trial court abuse its discretion in

denying Plaintiff’s motion in limine to preclude

at trial the deposition of Officer Bernadette

Enchautegui, and Plaintiff’s motion for a

de bene esse deposition of her?

5. Viewed in totality, does Judge Tereshko’s

conduct evidence an appearance of

impropriety?

Lane’s brief at 4-5.

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“When reviewing a court’s decision to grant or deny

a spoliation sanction, we must determine whether

the court abused its discretion.” Mount Olivet

Tabernacle Church v. Edwin L. Wiegand

Division, 781 A.2d 1263, 1269 (Pa.Super. 2001)

(citing Croydon Plastics Co. v. Lower Bucks

Cooling & Heating, 698 A.2d 625, 629 (Pa.Super.

1997) (recognizing that “[t]he decision whether to

sanction a party, and if so the severity of such

sanction, is vested in the sound discretion of the trial

court”)). Such sanctions arise out of “the common

sense observation that a party who has notice that

[evidence] is relevant to litigation and who proceeds

to destroy [evidence] is more likely to have been

threatened by [that evidence] than is a party in the

same position who does not destroy [the evidence].”

Mount Olivet, 781 A.2d at 1269 (quoting

Nation-Wide Check Corp. v. Forest Hills

Distributors, Inc., 692 F.2d 214, 218 (1st Cir.

1982)). Our courts have recognized accordingly that

one potential remedy for the loss or destruction of

evidence by the party controlling it is to allow the

jury to apply its common sense and draw an

“adverse inference” against that party. See

Schroeder v. Commonwealth of Pa., Dep’t of

Transp., 551 Pa. 243, 710 A.2d 23, 28 (1998).

Although award of summary judgment against the

offending party remains an option in some cases, its

severity makes it an inappropriate remedy for all but

the most egregious conduct. See Tenaglia v.

Proctor & Gamble, Inc., 737 A.2d 306, 308

(Pa.Super. 1999) (“[S]ummary judgment is not

mandatory simply because the plaintiff bears some

degree of fault for the failure to preserve the

product.”).

Creazzo v. Medtronic, Inc., 903 A.2d 24, 28-29 (Pa.Super. 2006).

To determine the appropriate sanction for spoliation,

the trial court must weigh three factors:

(1) the degree of fault of the party who

altered or destroyed the evidence;

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(2) the degree of prejudice suffered by the

opposing party; and (3) whether there is

a lesser sanction that will avoid

substantial unfairness to the opposing

party and, where the offending party is

seriously at fault, will serve to deter such

conduct by others in the future.

Mount Olivet, 781 A.2d at 1269-70 (quoting

Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d

76, 79 (3d Cir.1994)). In this context, evaluation of

the first prong, “the fault of the party who altered or

destroyed the evidence,” requires consideration of

two components, the extent of the offending party’s

duty or responsibility to preserve the relevant

evidence, and the presence or absence of bad faith.

See Mt. Olivet, 781 A.2d at 1270. The duty prong,

in turn, is established where: “(1) the plaintiff knows

that litigation against the defendants is pending or

likely; and (2) it is foreseeable that discarding the

evidence would be prejudicial to the defendants.”

Id. at 1270-71.

Id. at 29.

Here, we note that the defendants never requested production of the

2005 Laptop during discovery. The Honorable Howland Abramson, who

presided over this case until his retirement, previously ruled that Lane had

satisfied her discovery document production obligations. In addition, from

our review of the record, the defendants’ argument that there are missing

documents including e-mail correspondence between Lane and her friends is,

at best, speculative.

Lane explained that her 2005 Laptop “died” and the screen went black,

so she purchased a new MacBook laptop (“the 2008 Laptop”) from the

Apple store. According to Lane, the Apple store transferred data including

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photographs from her old laptop to the new one, and she then discarded the

2005 Laptop.1

The trial court’s conclusion that Lane’s case is based upon documents

originated and stored in her 2005 Laptop, and that her disposal of the

2005 Laptop was with the intent to destroy material evidence and thus

deprive the defendants of any meaningful defense, is simply not tenable.

Lane had e-mail accounts with both Yahoo! and Apple (“.mac”). The subject

of Lane’s complaint were the communications stored on her remote, web-

accessed Yahoo! and .mac accounts, which were preserved. Those e-mails,

which were the subject of an FBI investigation, are stored indefinitely on the

Yahoo! and .mac remote servers. Similarly, e-mails sent through Lane’s

CBS work e-mail account would be stored on CBS servers, not on Lane’s

laptop. The defendants cannot point to any missing, material evidence from

Lane’s 2005 Laptop that she intentionally destroyed. Obviously this court is

bound by the trial court’s credibility determination that Lane intentionally

disposed of the 2005 Laptop; however, the suggestion that there are

missing e-mails detrimental to Lane’s case that were stored only on her

1

Lane described this process as “cloning.” The trial court relied on the

defense expert, Mr. McGowan’s testimony that “cloning” is a “byte-for-byte”

transfer of data which would not have been possible because the 2005

Laptop and 2008 Laptop used different computer chips. However, Lane is

not a computer expert, she is a layperson, and her use of the term “cloning”

may have been inadvertent. Furthermore, Mr. McGowan conceded that files

including e-mails and photographs could have been transferred from the

2005 Laptop to the 2008 Laptop.

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2005 Laptop is speculation. Under these circumstances, the extreme

sanction of dismissal was unwarranted.

Next, Lane argues that Judge Tereshko’s grant of summary judgment

for CBS ran afoul of the coordinate jurisdiction rule, since Judge Abramson

had previously denied CBS’s motion for summary judgment.

Initially, we note:

Our scope of review of a trial court’s

order disposing of a motion for summary

judgment is plenary. Accordingly, we

must consider the order in the context of

the entire record. Our standard of

review is the same as that of the trial

court; thus, we determine whether the

record documents a question of material

fact concerning an element of the claim

or defense at issue. If no such question

appears, the court must then determine

whether the moving party is entitled to

judgment on the basis of substantive

law. Conversely, if a question of

material fact is apparent, the court must

defer the question for consideration of a

jury and deny the motion for summary

judgment. We will reverse the resulting

order only where it is established that

the court committed an error of law or

clearly abused its discretion.

Grimminger v. Maitra, 887 A.2d 276, 279

(Pa.Super.2005) (quotation omitted). “[Moreover,]

we will view the record in the light most favorable to

the non-moving party, and all doubts as to the

existence of a genuine issue of material fact must be

resolved against the moving party.” Evans v.

Sodexho, 946 A.2d 733, 739 (Pa.Super.2008)

(quotation omitted).

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Ford Motor Co. v. Buseman, 954 A.2d 580, 582-583 (Pa.Super. 2008),

appeal denied, 970 A.2d 431 (Pa. 2009).

[T]his Court has long recognized that judges of

coordinate jurisdiction sitting in the same case

should not overrule each other[’s] decisions. See,

e.g., Okkerse v. Howe, 521 Pa. 509, 516-517, 556

A.2d 827, 831 (1989). This rule, known as the

“coordinate jurisdiction rule,” is a rule of sound

jurisprudence based on a policy of fostering the

finality of pre-trial applications in an effort to

maintain judicial economy and efficiency. Id. See

also Golden v. Dion & Rosenau, 410 Pa.Super.

506, 510, 600 A.2d 568, 570 (1991) (once a matter

has been decided by a trial judge the decision should

remain undisturbed, unless the order is appealable

and an appeal therefrom is successfully prosecuted).

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995).

In our view, this coordinate jurisdiction rule

falls squarely within the ambit of a generalized

expression of the “law of the case” doctrine. This

doctrine refers to a family of rules which embody the

concept that a court involved in the later phases of a

litigated matter should not reopen questions decided

by another judge of that same court or by a higher

court in the earlier phases of the matter. See

21 C.J.S. Courts § 149a; 5 Am.Jur.2d Appeal and

Error § 744. Among the related but distinct rules

which make up the law of the case doctrine are that:

(1) upon remand for further proceedings, a trial

court may not alter the resolution of a legal question

previously decided by the appellate court in the

matter; (2) upon a second appeal, an appellate court

may not alter the resolution of a legal question

previously decided by the same appellate court; and

(3) upon transfer of a matter between trial judges of

coordinate jurisdiction, the transferee trial court may

not alter the resolution of a legal question previously

decided by the transferor trial court. See Joan

Steinman, Law of the Case: A Judicial Puzzle in

Consolidated and Transferred Cases and in

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Multidistrict Litigation, 135 U.Pa.L.Rev. 595, 602

(1987) (citing A. Vestal, Law of the Case:

Single-Suit Preclusion, 12 Utah L.Rev. 1, 1-4

(1967)) (hereinafter “Judicial Puzzle”).

Id.

The various rules which make up the law of the

case doctrine serve not only to promote the goal of

judicial economy (as does the coordinate jurisdiction

rule) but also operate (1) to protect the settled

expectations of the parties; (2) to insure uniformity

of decisions; (3) to maintain consistency during the

course of a single case; (4) to effectuate the proper

and streamlined administration of justice; and (5) to

bring litigation to an end. 21 C.J.S. Courts § 149a;

Judicial Puzzle at 604-605.

Id.

Departure from either of these principles is allowed

only in exceptional circumstances such as where

there has been an intervening change in the

controlling law, a substantial change in the facts or

evidence giving rise to the dispute in the matter, or

where the prior holding was clearly erroneous and

would create a manifest injustice if followed.

Compare Musumeci v. Penn’s Landing

Corporation, 433 Pa.Super. 146, 151-152, 640

A.2d 416, 419 (1994), appeal denied, 539 Pa. 653,

651 A.2d 540 (1994) (the coordinate jurisdiction rule

applies in all cases except where newly-discovered

evidence or newly-developed legal authority compel

a result different than that reached by the first

judge) and Commonwealth v. Brown, 485 Pa.

368, 371, 402 A.2d 1007, 1008 (1979) (where the

evidence is substantially the same as that originally

ruled upon by the first judge, a second judge

commits a per se abuse of discretion in overruling or

vacating the prior order) (citations omitted) with

21 C.J.S. Courts § 149b (same).

Id. at 1332.

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Our supreme court has recently recognized the

continuing validity of the clearly erroneous/manifest

injustice exception. [Zane v. Friends Hospital,

836 A.2d 25, 29-30 (Pa. 2003)] (upholding the

clearly erroneous/manifest injustice exception to the

law of the case doctrine in those circumscribed cases

in which the prior court’s ruling was so clearly

erroneous that it would create a manifest injustice

that would be, in essence, plainly intolerable, if

followed). See also Ryan v. Berman, 572 Pa. 156,

813 A.2d 792 (2002); Gerrow v. John Royle &

Sons, 572 Pa. 134, 813 A.2d 778 (2002) (plurality);

Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d

581 (1999). The Zane court clearly instructs,

however, that Pennsylvania courts must be

scrupulous in applying the exception so that it does

not swallow the rule. First, the prior court’s ruling

must, in fact, be so palpably erroneous that reversal

is almost certain on appeal. Zane, supra at 243-44,

836 A.2d at 29. Even then, the error must also

create such an injustice as to be plainly intolerable.

Id. at 30.

Commonwealth v. Viglione, 842 A.2d 454, 464-465 (Pa.Super. 2004)

(en banc) (footnote omitted). See also Gerrow, 813 A.2d at 782 (“In

some circumstances, however, application of the rule can ‘thwart the very

purpose the rule was intended to serve, i.e., that judicial economy and

efficiency be maintained.’”), quoting Salerno v. Philadelphia

Newspapers, Inc., 546 A.2d 1168, 1170 (Pa.Super. 1988).

Judge Tereshko revisited Judge Abramson’s ruling based, in part, on

changed circumstances, i.e., dismissal of the case on spoliation grounds,

and exclusion of Lane’s expert report on defamation. For the reasons

discussed above, we have already determined that outright dismissal of the

case based on spoliation was error. As explained below, we agree with the

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ruling regarding Lane’s expert. At the time Judge Abramson ruled, the

defendants’ challenge to the admissibility of Keel’s report had not yet been

decided by that court. It was assumed that Keel was going to testify at trial.

However, Judge Abramson did not explicitly rely on Mr. Keel’s expert report.

Rather, Judge Abramson, citing Michael Colleran’s deposition testimony,

stated as his reason for denying summary judgment that there were genuine

issues of material fact based on his interpretation of Colleran’s testimony as

to whether CBS entertained serious doubts as to the truth of the statement.2

2

Judge Abramson’s May 12, 2011 order provided, in relevant part:

The Court finds that the statement at issue in this case

(the “Statement”) is capable of defamatory meaning,

given the context in which the Statement was made.

Genuine issues of material fact exist regarding whether

the Statement was understood as defamatory by the

recipients of the Statement. In other words, genuine

issues of material fact exist as to whether an average

person could conclude from the Statement that Plaintiff

committed the alleged actions in New York, which

underlay the criminal case.

Further, since Plaintiff is a public figure, she

“must prove that the defendant published the offending

statement with ‘actual malice,’ i.e., with knowledge

that the statement was false or with reckless disregard

of its falsity.” Weaver v. Lancaster Newspapers, Inc.,

926 A.2d 899, 903 (Pa. 2007) (citations omitted).

“[F]or the purposes of establishing that a defendant

acted with reckless disregard for the truth, there must

be sufficient evidence to permit the conclusion that the

defendant in fact entertained serious doubts as to the

truth of his publication.” Id.

The Court finds that Plaintiff has produced

sufficient evidence of actual malice to survive summary

judgment. Plaintiff has pointed to specific deposition

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Therefore, the record on the summary judgment defamation issue was not

materially different and without more, we would find a violation of the

coordinate jurisdiction rule.

However, Judge Tereshko also found that permitting the case to go to

trial on the basis of CBS’s statement would result in a manifest injustice, and

that Judge Abramson’s ruling denying CBS’s summary judgment motion was

clearly erroneous. According to Judge Tereshko, the statement is not

capable of a defamatory meaning as a matter of law.

“Defamation is a communication which tends to

harm an individual’s reputation so as to lower him or

her in the estimation of the community or deter third

persons from associating or dealing with him or her.”

Elia v. Erie Insurance Exchange, 430 Pa.Super.

384, 634 A.2d 657, 660 (1993). Only statements of

fact, not expressions of opinion, can support an

testimony in the record which creates genuine issues of

material fact as to whether CBS entertained “serious

doubts” as to the truth of the Statement. (See, e.g.,

Calabria Dep., p. 429; Colleran Dep., p. 572-575, 623-

629). Therefore, CBS’s Motion for Summary Judgment

on Plaintiff’s defamation claim is denied.” (Order,

5/12/11 at 1-2 n.1.)

We note that portions of Colleran’s deposition testimony cited by Lane are taken

out of context, to create an impression that Colleran subjectively believed Lane

was guilty of criminal misconduct in New York. In fact, Colleran testified that he

had no idea whether the allegations were true, that Lane struck a police officer

and made a homophobic slur. (RR at 2014.) However, this is not relevant to

the alleged defamatory content of the CBS statement. Viewing Colleran’s

testimony in its totality, it is clear that he simply felt that given the news stories

concerning Lane, including the pending charges in New York, she had lost

credibility as a television journalist and CBS could not continue to employ her.

The CBS statement does not accuse Lane of criminal misconduct, in fact CBS

noted that it was not prejudging Lane and that it hoped she would be

exonerated.

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action in defamation. Id. In a defamation case, a

plaintiff must prove: “(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;

and (7) abuse of a conditionally privileged occasion.”

Porter v. Joy Realty, Inc., 872 A.2d 846, 849 n. 6

(Pa.Super. 2005), quoting, 42 Pa.C.S.A. § 8343(a).

See also, Weber v. Lancaster Newspapers, Inc.,

878 A.2d 63 (Pa.Super. 2005).

Moore v. Cobb-Nettleton, 889 A.2d 1262, 1267 (Pa.Super. 2005).

It is for the trial court to determine as a matter of

law whether a statement is one of fact or opinion, as

well as to determine whether a challenged statement

is capable of having defamatory meaning. Elia, 634

A.2d at 660, citing Braig v. Field

Communications, 310 Pa.Super. 569, 456 A.2d

1366 (1983), cert. denied, 466 U.S. 970, 104 S.Ct.

2341, 80 L.Ed.2d 816 (1984). “A communication is

. . . defamatory if it ascribes to another conduct,

character or a condition that would adversely affect

his fitness for the proper conduct of his proper

business, trade or profession.” Maier v. Maretti,

448 Pa.Super. 276, 671 A.2d 701, 704 (1995),

appeal denied, 548 Pa. 637, 694 A.2d 622 (1997),

citing Gordon v. Lancaster Osteopathic Hospital

Association, 340 Pa.Super. 253, 489 A.2d 1364

(1985). Additionally, the court should “consider the

effect the statement would fairly produce, or the

impression it would naturally engender, in the minds

of average persons among whom it is intended to

circulate.” Maier, 671 A.2d at 704, citing Rybas v.

Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983).

Constantino v. University of Pittsburgh, 766 A.2d 1265, 1270 (Pa.Super.

2001). “It is clear that expressions of pure opinion that rely on disclosed

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facts are not actionable.” Feldman v. Lafayette Green Condominium

Ass’n, 806 A.2d 497, 501 (Pa.Cmwlth. 2002) (citations omitted).

It is not disputed that Lane, as a newscaster, was a public figure.

[T]he appropriate standard of fault depends on

whether the plaintiff is a public or private figure. If

the plaintiff is a public official or public figure, and

the statement relates to a matter of public concern,

then to satisfy First Amendment strictures the

plaintiff must establish that the defendant made a

false and defamatory statement with actual malice.

In contrast, states are free to allow a private-figure

plaintiff to recover by establishing that the defendant

acted negligently rather than maliciously.

American Future Systems, Inc. v. Better Business Bureau of Eastern

Pennsylvania, 923 A.2d 389, 400 (Pa. 2007), cert. denied, 552 U.S. 1076

(2007) (citations and parentheticals omitted).3

3

As used in this discussion, the term “actual malice”

(sometimes shortened to “malice”) is a term of art

that refers to a speaker’s knowledge that his

statement is false, or his reckless disregard as to its

truth or falsity. Thus, it implies at a minimum that

the speaker “‘entertained serious doubts about the

truth of his publication,’ . . . or acted with a ‘high

degree of awareness of . . . probable falsity.’”

Masson v. New Yorker Magazine, 501 U.S. 496,

510, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991)

(quoting St. Amant v. Thompson, 390 U.S. 727,

731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968);

Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct.

209, 216, 13 L.Ed.2d 125 (1964)). This term

“should not be confused with the concept of malice

as an evil intent or a motive arising from spite or ill

will.” Id.

Id. at 76 n.6, 923 A.2d at 395 n.6.

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Here, CBS stated, after noting that Lane was facing criminal charges in

New York, a true statement at the time, that “it would be impossible for

Alycia to continue to report the news, as she herself has become the focus of

so many news stories.” This merely conveys an opinion, which is not

actionable as a matter of Pennsylvania law. While Lane argues that the

statement somehow suggests or implies that she committed criminal acts,

the statement clearly relates the fact that Lane denies she committed any

crime, and that she expects to be “fully vindicated.” The statement also

expresses CBS’s hope that Lane will be fully vindicated. Lane’s

interpretation contradicts the statement’s plain terms and clear meaning.

The statement makes clear that there had been no determination of guilt or

innocence and that CBS hoped Lane would be cleared of any charges. There

is simply no evidence that CBS knew anything in the statement was false or

probably false, or that the statement was made with actual malice. In fact,

Lane admitted that taken at face value, there was nothing false about CBS’s

statement. (Lane deposition, 1/21/11 at 604-608.) While Lane claims the

statement implies guilt, as the trial court states, innuendo can only support

a defamation action where it is warranted, justified and supported by the

publication. (Trial court opinion and order, 12/12/12 at 33, citing

Livingston v. Murray, 612 A.2d 443, 449 (Pa.Super. 1992), appeal

denied, 617 A.2d 1275 (Pa. 1992)). Lane’s argument that the statement

implies she committed crimes is directly contrary to its plain terms. Lane

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failed to establish that the publication was capable of defamatory meaning. 4

As the appellate court, we find Judge Abramson’s prior ruling was so

palpably erroneous that reversal would be almost certain on appeal. As

such, the prior court’s ruling was clearly erroneous and an exception to the

coordinate jurisdiction rule applied.5

In her third assignment of error, Lane contends that CBS should not

have been permitted to use Officer Bernadette Enchautegui’s deposition

where Lane did not have a full and fair opportunity to cross-examine.

During Officer Enchautegui’s deposition concerning the New York incident,

plaintiff’s counsel moved to strike on the basis of CPL § 160.50, which

provides for the sealing of records relating to the arrest and prosecution

upon the termination of a criminal proceeding in the favor of the accused.

According to plaintiff’s counsel, Officer Enchautegui was not allowed to

testify to documents in the police file, and could even be exposing herself to

criminal liability. (Trial court opinion, 1/27/12 at 3, citing notes of

4

It follows that Lane’s claim for false light also cannot be maintained. To

make out a false light invasion of privacy claim, Lane would have to prove,

inter alia, that “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) Torts, § 652E(b). Here,

there was nothing false about CBS’s statement announcing Lane’s

termination.

5

“Moreover, it is a well-settled doctrine in this Commonwealth that a trial

court can be affirmed on any valid basis appearing of record.” In re T.P.,

78 A.3d 1166, 1170 (Pa.Super. 2013), appeal denied, 93 A.3d 463 (Pa.

2014) (citations omitted).

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testimony, Enchautegui deposition, 1/10/11 at 100-105.) At that point,

Officer Enchautegui requested counsel and asked that the deposition be

adjourned.

As the trial court states, the privilege afforded by Section 160.50 is not

absolute and is waived where the accused makes the criminal prosecution an

issue in a civil action. (Id. at 6.) That is clearly the case here. The trial

court explains,

In the instant matter, Plaintiff put the details of her

arrest squarely at issue as she has alleged that CBS

defamed her by conveying to the viewing public that

CBS had determined that Plaintiff was guilty of the

crime charged in New York and terminated her

contract as a result. In doing so, Plaintiff has waived

the privilege conferred by CPL § 160.50, and the

threats leveled at Officer Enchautegui during the

deposition by Plaintiff’s counsel were baseless.

Id. We agree. Lane was not unfairly denied an opportunity to

cross-examine Officer Enchautegui, where her own frivolous objections

caused Officer Enchautegui to request counsel and stop the proceedings.

Next, Lane argues that the trial court abused its discretion by

precluding the testimony of her expert on the defamation issue, Frank J.

Keel (“Keel”). “The admission of expert testimony is a matter of discretion

[for] the trial court and will not be remanded, overruled or disturbed unless

there was a clear abuse of discretion.” Blicha v. Jacks, 864 A.2d 1214,

1218 (Pa.Super. 2004).

An expert witness is a witness who possesses

knowledge not within ordinary reach or

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understanding, and who, because of this knowledge,

is specially qualified to address a particular subject.

Steele v. Shepperd, 411 Pa. 481, 192 A.2d 397

(1963). When a witness is offered as an expert, the

first question the trial court should ask is whether

the subject to be addressed by the witness is “so

distinctly related to some science, profession,

business or occupation” that it is beyond the

understanding of the average layperson. McDaniel

v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533

A.2d 436, 440 (1987), appeal denied, 520 Pa. 589,

551 A.2d 215 (1998) (quoting Dambacher v.

Mallis, 336 Pa.Super. 22, 485 A.2d 408, 415

(1984), appeal dismissed, 508 Pa. 643, 500 A.2d

428 (1985)). If the answer to that question is “Yes,”

the trial court must then ascertain whether the

proposed witness has “sufficient skill, knowledge, or

experience in that field or calling as to make it

appear that his opinion or inference will probably aid

the trier in [the] search for truth.” Id.

Bergman v. United Services Auto. Ass’n, 742 A.2d 1101, 1105

(Pa.Super. 1999).

Necessity is fundamental to the admissibility of

opinion evidence. Cooper v. Metropolitan Life

Ins. Co., 323 Pa. 295, 186 A. 125 (1936). If the

facts can be fully and accurately described to the

fact-finder, who, without special knowledge or

training, is able to estimate the bearing of those

facts on the issues in the case, then the opinions of

witnesses are inadmissible because they are

unnecessary in the search for truth. Whyte v.

Robinson, 421 Pa.Super. 33, 617 A.2d 380 (1992).

The trial court must determine whether the necessity

for the testimony exists and whether the witness is

qualified to testify. Ruzzi v. Butler Petroleum Co.,

527 Pa. 1, 588 A.2d 1 (1991); Cooper, supra.

Id.

This Court has also emphasized that expert

testimony should not invite the fact-finder to

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abdicate its responsibility to ascertain and assess the

facts and, instead, defer to the expert’s opinion.

Commonwealth v. Montavo, 439 Pa.Super. 216,

653 A.2d 700 (1995), appeal denied, 541 Pa. 636,

663 A.2d 689 (1995). The primary purpose of the

expert testimony must be to assist the trier of fact in

understanding complicated matters, not simply to

assist one party or another in winning the case.

Panitz v. Behrend, 429 Pa.Super. 273, 632 A.2d

562 (1993).

Id.

Lane argues that Keel’s testimony was necessary to put the CBS

statement into context, and to explain how it relied on undisclosed

defamatory facts. In the introduction to his expert report, Keel states that,

“This opinion is limited to addressing the effect that the Statement at issue

would have on the average recipient or listener, and the public perception of

the Statement with respect to the average members of the community and

general public.” (Trial court opinion, 2/16/12 at 2.) Keel then goes on to

conclude that, inter alia: the statement tended to harm Lane’s reputation

in the community and deter third persons from dealing with her; the

statement conveys that Lane was guilty of a felony and had exhibited

criminal bad judgment, such that she could not possibly continue to work in

her chosen field; the statement conveys that Lane had credibility issues so

severe it was impossible for her to continue to practice her profession; and

the statement was, in fact, untrue. (Id. at 2-3.)

We agree with the trial court that permitting Keel to testify as to the

statement’s effect on the average listener would invade the province of the

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jury. Whether the statement has the effect of conveying to the average

viewer that Lane was guilty of a felony is not beyond the knowledge or

experience of the average layperson. As the trial court remarked, “this

Court is presented with the proposition that an Expert is required to tell the

average person on a jury what the average person would think about

Defendant’s Statement.” (Id. at 3 (emphasis deleted).) Keel’s proposed

testimony would only serve to confuse the jury and unduly influence them.

The trial court did not abuse its discretion in refusing to permit this

testimony.

Finally, Lane argues that Judge Tereshko’s conduct in this matter

evidences an appearance of impropriety and bias. Primarily, Lane’s

argument in this regard focuses on Judge Tereshko’s adverse rulings

including on the spoliation issue and revisiting Judge Abramson’s denial of

CBS’s summary judgment motion. While we conclude the spoliation ruling

was in error, and we express concerns regarding the trial court’s findings in

this regard, we cannot say that there is an appearance of impropriety or bias

in the defendants’ favor.

We now turn to CBS’s cross-appeal.6 First, CBS argues that the trial

court erred in denying its motion for summary judgment on Lane’s

6

Lane has filed motions to quash both CBS’s and Mendte’s cross-appeals,

arguing that because they prevailed in the court below, they are not

“aggrieved parties” with standing to appeal. We disagree. Neither CBS nor

Mendte received all the relief they requested, e.g., the trial court denied

summary judgment on Lane’s negligence claim against CBS. While a

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negligence claim. Lane brought a claim under § 213 of the Restatement

(Second) of Agency, alleging that CBS negligently failed to prevent Mendte’s

tortious conduct of hacking into Lane’s e-mails. CBS argues that the trial

court failed to identify any legal duty CBS owed to Lane.

Initially, we observe that in addition to arguing lack of a legal duty to

Lane, CBS claims that Lane’s negligence cause of action is statutorily barred

by the Workers’ Compensation Act; that there was no evidence Lane was

harmed by Mendte’s conduct; and that the negligence claim is barred by the

statute of limitations. None of these particular issues were raised in

CBS’s concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b); therefore, they are deemed waived. In CBS’s

Rule 1925(b) statement, it alleged only that the trial court erred by denying

its summary judgment motion as to Lane’s theory of negligence based upon

the Restatement of Agency (Second) § 213. It is firmly established that

issues not raised in a Rule 1925(b) statement are waived on appeal.

Pa.R.A.P. 1925(b)(4)(vii).

Section 213 provides,

protective cross-appeal is not required under Pa.R.A.P. 511, it is permitted

where CBS and Mendte were clearly “aggrieved” by particular rulings in the

trial court. See Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 588-590

(Pa.Super. 2003) (the prevailing party properly cross-appealed where it was

aggrieved by a judgment that did not grant it the full contractual relief it

sought).

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A person conducting an activity through servants or

other agents is subject to liability for harm resulting

from his conduct if he is negligent or reckless:

(a) in giving improper or ambiguous orders

of [sic] in failing to make proper

regulations; or

(b) in the employment of improper persons

or instrumentalities in work involving risk

of harm to others:

(c) in the supervision of the activity; or

(d) in permitting, or failing to prevent,

negligent or other tortious conduct by

persons, whether or not his servants or

agents, upon premises or with

instrumentalities under his control.

The Comment states that, “Liability exists only if all the requirements

of an action of tort for negligence exist.” This court has commented, “these

Restatement sections do no more than to restate the existing tort law of

Pennsylvania. They impose on an employer the duty to exercise reasonable

care in selecting, supervising and controlling employees.” Brezenski v.

World Truck Transfer, Inc., 755 A.2d 36, 42 (Pa.Super. 2000), quoting

R.A. v. First Church of Christ, 748 A.2d 692 (Pa.Super. 2000). See also

Heller v. Patwil Homes, Inc., 713 A.2d 105, 107 (Pa.Super. 1998) (“Our

reasoning that an employer may be liable directly for wrongful acts of its

negligently hired employee comports with the general tort principles of

negligence long recognized in this jurisdiction.”), citing Dempsey v. Walso

Bureau, Inc., 246 A.2d 418 (Pa. 1968).

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CBS has a duty to hire and supervise its employees to prevent

foreseeable harm. Instantly, there was evidence that CBS had either actual

or constructive notice of the harm that Mendte was to cause Lane. As

Judge Abramson found in denying CBS’s motion for summary judgment:

The Court finds that [Lane] has produced sufficient

evidence to proceed on her Section 213 theory of

negligence with respect to her personal emails.[7]

Paragraph (d) of Section 213 states that an

employer is liable “in permitting or failing to prevent,

negligent or other tortious conduct by persons,

whether or not his servants or agents upon premises

or with instrumentalities under his control.” In this

instance, it is undisputed that Defendant Mendte

illicitly accessed Lane’s personal email accounts, and

that this accessing occurred (in part) on CBS

property and utilizing CBS’ chattels. Moreover, while

CBS may not have known that Mendte was the

perpetrator, the record indicates that a genuine issue

of material fact exists as to whether CBS had

“constructive” notice that one of its employees was

committing tortious actions on its premises and

using its chattels.

Opinion and Order, 5/16/11 at 15-16 (footnote omitted) (emphasis in

original). The trial court did not err in denying CBS’s motion for summary

judgment on Lane’s negligence claim.

Secondly, CBS complains that the trial court denied its motion for

sanctions under Pa.R.C.P. 4019 for Lane’s conduct relative to the

Enchautegui deposition. “Discovery matters are within the discretion of the

trial court, and, therefore, we employ an abuse of discretion standard of

7

The trial court refused to recognize a personal privacy interest in Lane’s

corporate e-mail.

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review.” McNeil v. Jordan, 814 A.2d 234, 241 (Pa.Super. 2002), reversed

on other grounds, 894 A.2d 1260 (Pa. 2006), citing Luszczynski v.

Bradley, 729 A.2d 83, 87 (Pa.Super. 1999). We can discern no basis for

disturbing the trial court’s ruling in this regard, which would seem to be

uniquely within the trial court’s discretion. In fact, there was some

indication that Officer Enchautegui had been led to believe that she was

represented by counsel for CBS, which was untrue, and this was at least part

of the reason she refused to continue with the deposition. In any event, it

could be argued that Lane’s conduct worked to CBS’s benefit where we have

held that the deposition testimony would have been admissible in the

defamation action despite lack of cross-examination.

Finally, we turn to Mendte’s arguments on cross-appeal. Mendte

appeals the May 16, 2011 order granting partial summary judgment in favor

of Lane on Counts III and XIII (Invasion of Privacy -- Intrusion Upon

Seclusion), IV (Tortious Interference with Prospective Contractual Relations),

and V (Invasion of Privacy -- Publicity Given to Private Life).

Judge Abramson granted summary judgment on these counts as to liability

only, limited to Lane’s personal e-mails, with causation and damages to be

determined at trial.

Mendte had pled guilty to violating 18 U.S.C. §§ 1030(a)(2)(C) and

1030(c)(2)(B)(ii), which require the government to prove that the defendant

(1) intentionally; (2) accessed a computer without authorization; and

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(3) thereby obtained information from any protected computer; (4) the

conduct involved an interstate communication; and (5) the defendant did so

in furtherance of any criminal or tortious act in violation of the Constitution

or laws of the United States or any state. (Opinion and Order, 5/16/11 at

1 n.1.) Pursuant to his guilty plea in federal court, Mendte admitted the

underlying facts, including that from January to March 2008, he accessed

Lane’s personal e-mail accounts without authorization more than 500 times.

(Id.) These included e-mails between Lane and her attorneys discussing

Lane’s criminal case in New York. (Id.) Mendte admitted that he read these

e-mails and leaked information to the press. (Id.) In addition, Mendte

admitted that he attempted to undermine Lane’s efforts to achieve a

favorable disposition of her criminal case in New York, including sending an

anonymous letter to the New York City district attorney’s office. (Id. at 1-2

n.1.) Judge Abramson concluded that these facts constitute the torts set

forth in the above counts and Mendte is judicially estopped from denying or

disputing these facts at trial. (Id. at 2 n.1.)

The doctrine of judicial estoppel holds that [a]s a

general rule, a party to an action is estopped from

assuming a position inconsistent with his or her

assertion in a previous action, if his or her contention

was successfully maintained. The purpose of this

doctrine is to uphold the integrity of the courts by

preventing parties from abusing the judicial process

by changing positions as the moment requires.

Bugosh v. Allen Refractories Co., 932 A.2d 901, 912 (Pa.Super. 2007),

appeal dismissed as improvidently granted, Bugosh v. I.U. North

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America, Inc., 971 A.2d 1228 (Pa. 2009) (quotation marks and citations

omitted).

Mendte admitted to the above facts as part of his guilty plea and is

now estopped from denying them in a subsequent civil trial. Notably,

Judge Abramson found that the issues of causation and damages suffered, if

any, were never determined and that Mendte would not be precluded from

litigating those issues in the present case. Therefore, to the extent Mendte

argues that Lane suffered no damages from his tortious interference with

prospective contractual relations where the criminal charges in New York

were ultimately dismissed, he will have the opportunity to litigate that issue

despite his previous admissions in criminal court. Judge Abramson did not

err in granting partial summary judgment for Lane, limited to liability.

Affirmed in part and reversed in part. Remanded for further

proceedings consistent with this memorandum. CBS’s application for

sanctions, filed April 7, 2014, and joined by Mendte on April 24, 2014, is

hereby denied. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/5/2015

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