Isiminger, D. v. Davis, B.

J-A07037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANNY ISIMINGER, INDIVIDUALLY AND IN THE SUPERIOR COURT OF

TDBA ISIMINGER’S TOWING SERVICE PENNSYLVANIA

Appellant

v.

BRENDA DAVIS

Appellee No. 1351 WDA 2014

Appeal from the Order Entered July 30, 2014

In the Court of Common Pleas of Washington County

Civil Division at No(s): No. 2011-4478

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

MEMORANDUM BY MUNDY, J.: FILED APRIL 06, 2015

Appellant, Danny Isiminger, individually and tdba Isiminger’s Towing

Service, appeals from the July 30, 2014 order, which denied Appellant’s

motion for summary judgment and granted the motion for judgment on the

pleadings filed by Appellee, Brenda Davis.1 After careful review, we affirm.

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1

The denial of a motion for summary judgment is interlocutory and

generally not appealable. Aubrey v. Precision Airmotive LLC, 7A.3d 256,

261 (Pa. Super. 2010), appeal denied, 42 A.3d 289 (Pa. 2012). However,

“interlocutory orders … become reviewable on appeal upon the trial court’s

entry of a final order[.]” Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa. Super.

2008), appeal denied, 989 A.2d 918 (Pa. 2009). In this case, the order in

question contemporaneously denied Appellant’s motion for summary

judgment and granted Davis’ motion for judgment on the pleadings.

Therefore, we have jurisdiction to review the denial of the summary

judgment motion. See id.

J-A07037-15

We recount the factual and procedural history of this case, as gleaned

from the certified record, as follows. Appellant is the owner of Isiminger’s

Towing Service and contracted with the City of Washington to provide towing

services. Appellant’s Complaint, 7/6/11, at 1, ¶ 2. 2 The contract became

effective on April 9, 2011 and was to terminate on October 31, 2012, unless

the parties agreed to renew the contract prior to that date. Id. at Exhibit A

(Contract for Towing Services at 3 ¶ 9). Prior to entering the contract that is

the subject of this appeal, Appellant was also contracted to provide towing

services for the City of Washington for the previous four years. Id. at 9, ¶

29. In 2011, Davis ran for mayor in the City of Washington, and Appellant

claimed that Davis made several public comments attacking Appellant’s

towing business. Id. at 2, ¶¶ 5, 8. The comments Appellant claimed Davis

made relate to the length of time police officers wait for a tow truck after

pulling over a vehicle. Id. at ¶ 8. Appellant also claimed Davis publicly

suggested looking to other towing companies to provide the service to the

city at the expiration of Appellant’s contract. Id.

On July 7, 2011, Appellant filed a civil complaint against Davis alleging

defamation and interference with contractual relations. Id. at 4-13. On July

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2

Appellant’s complaint does not contain pagination. For ease of reference,

we have assigned each page a corresponding page number. Further,

Appellant’s contract, appended to his complaint at Exhibit A, and Appellant’s

petition for reconsideration also do not contain pagination. We likewise have

assigned corresponding page numbers when referencing these filings.

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27, 2011, Davis filed an answer to the complaint, and Appellant filed a

timely response thereto. On March 6, 2014, Davis submitted a motion for

judgment on the pleadings to the trial court, and Appellant submitted a

motion for summary judgment. The trial court, by separate orders, directed

Appellant and Davis to file memoranda in support of and opposing the

respective motions, and both parties timely complied. The trial court held

one hearing on both motions, and on April 11, 2014, the trial court filed an

opinion in which it entered judgment in favor of Davis and denied Appellant’s

motion for summary judgment as to all claims. Trial Court Opinion,

4/11/14, at 1-5.

Thereafter, Appellant filed a motion for reconsideration and request for

entry of summary judgment on April 21, 2014. Davis filed a response to the

motion on April 22, 2014, and at that time, she also filed a formal answer to

Appellant’s original motion for summary judgment. The trial court expressly

granted the request to reconsider its prior ruling on the issue of defamation,

scheduled a hearing, and set out a new briefing schedule. Trial Court Order,

4/25/14. On July 30, 2014, the trial court denied Appellant’s request and

reaffirmed its April 11, 2014 ruling. Trial Court Opinion, 7/30/14, at 1-3.

Appellant filed the instant, timely appeal on August 14, 2014.3

On appeal, Appellant raises the following issues for our review.

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3

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

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I. Whether the lower court erred in not granting

Appellant’s motion for summary judgment when

Appellee did not respond within thirty (30) days as

proscribed by Pa.R.A.C.P. 1035[?]

II. Whether the lower court erred in applying the

law dismissing statements made by the Appellee

towards a professional businessman as slanderous

per se and dismissing the action in that the

statements were “mildly critical”[?]

III. Whether there was an obligation on the part of

the lower court to inform the parties of a potential

conflict or is it the responsibility of the parties to

investigate the presiding judge[?]

Appellant’s Brief at 4.

In Appellant’s first issue, he argues the trial court erred in denying

Appellant’s motion for summary judgment because “[t]he [trial] court was []

mandated to enter [s]ummary [j]udgment against [Davis] for failure to reply

under the Pa. Rules of Civil Procedure.” Id. at 9-10. When deciding a

challenge to a trial court’s disposition on a motion for summary judgment,

the following principles guide our review.

Our scope of review of a trial court’s order granting

or denying summary judgment is plenary, and our

standard of review is clear: the trial court’s order will

be reversed only where it is established that the

court committed an error of law or abused its

discretion.

Summary judgment is appropriate only when the

record clearly shows that there is no genuine issue of

material fact and that the moving party is entitled to

judgment as a matter of law. The reviewing court

must view the record in the light most favorable to

the nonmoving party and resolve all doubts as to the

existence of a genuine issue of material fact against

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the moving party. Only when the facts are so clear

that reasonable minds could not differ can a trial

court properly enter summary judgment.

Yorty v. P.J.M. Interconnection, L.L.C., 79 A.3d 655, 662 (Pa. Super.

2013) (citation omitted).

As noted, Appellant argues, “the [s]ummary [j]udgment [m]otion

should have been granted for [Davis’] failure to file a response pursuant to

[] Pa.R.C.P. 1053.3[.]” Appellant’s Brief at 11. For the following reasons,

we conclude Appellant is not entitled to relief on this issue.

Rule 1053.3 governs responses to motions for summary judgment and

provides as follows.

Rule 1035.3. Response. Judgment for Failure

to Respond

(a) Except as provided in subdivision (e) the adverse

party may not rest upon the mere allegations or

denials of the pleadings but must file a response

within thirty days after service of the motion

identifying

(1) one or more issues of fact arising from

evidence cited in support of the motion or from

a challenge to the credibility of one or more

witnesses testifying in support of the motion,

or

(2) evidence in the record establishing the

facts essential to the cause of action or

defense which the motion cites as not having

been produced.

(b) An adverse party may supplement the record or

set forth the reasons why the party cannot present

evidence essential to justify opposition to the motion

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and any action proposed to be taken by the party to

present such evidence.

(c) The court may rule upon the motion for judgment

or permit affidavits to be obtained, depositions to be

taken or other discovery to be had or make such

other order as is just.

(d) Summary judgment may be entered against a

party who does not respond.

(e)(1) Nothing in this rule is intended to prohibit a

court, at any time prior to trial, from ruling upon a

motion for summary judgment without written

responses or briefs if no party is prejudiced. A party

is prejudiced if he or she is not given a full and fair

opportunity to supplement the record and to oppose

the motion.

(2) A court granting a motion under subdivision

(e)(1) shall state the reasons for its decision in a

written opinion on the record.

Pa.R.C.P. 1035.3 (emphasis added). Moreover, the explanatory comment to

the rule clarifies that “[t]he Rule permits entry of judgment for failure to

respond to the motion but does not require it.” Id. at cmt.

In the instant case, Appellant presented his motion for summary

judgment to the court on March 6, 2014, the same day as Davis submitted

her motion for judgment on the pleadings. Davis timely filed her brief in

opposition to the summary judgment motion on April 2, 2014, yet she did

not file a formal answer to the motion until April 22, 2014, patently

exceeding the thirty-day period for filing her answer.

The trial court addressed Appellant’s argument in its Rule 1925 opinion

as follows.

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The [trial c]ourt finds that [] [Davis] did

respond to the [motion for summary judgment]. The

[motions for judgment on the pleadings and

summary judgment] were presented simultaneously

to th[e trial c]ourt on March 6, 2014, where the

parties requested an argument date. In the [motion

for judgment on the pleadings], [Davis] argues that

the facts within the pleadings did not prove that the

alleged statements were defamatory in character.

Further, [Davis] filed a [b]rief in [o]pposition to the

[motion for summary judgment] on April 9, 2014. []

Appellant was clearly on notice of the alleged

defenses and was in no way prejudiced. In this

matter, the [trial c]ourt’s decision was based on the

alleged statements, which were concluded to be not

defamatory in character. The [motion for judgment

on the pleadings] and brief in response to the

[motion for summary judgment] specifically raised

and addressed those issues.

…

It is clearly within the [trial c]ourt’s discretion

to grant summary judgment for failure to respond.

Even if, arguendo, this [c]ourt had found that

[Davis] failed to timely respond to the [motion for

summary judgment], it would not have been

granted. The [trial c]ourt reviewed the pleadings in

the light most favorable to [] Appellant and

determined that the alleged statements made by

[Davis] could not be construed as defamatory. Thus,

[] Appellant failed to plead a prima facie case of

defamation. As such, granting summary judgment

would have been inappropriate and contrary to its

purpose.

Trial Court Opinion, 10/27/14, at 6-7.

The text and explanatory comment of Rule 1035.3 unequivocally state

that a trial court may grant summary judgment against a party who fails to

respond to the motion, but such is not required by the rule. Pa.R.C.P.

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1035.3(d); Id. at cmt. Therefore, Appellant’s claim is meritless, as the trial

court was not required to grant Appellant’s motion for summary judgment

based on Davis’ failure to file her answer to the motion within thirty days.

See id. Accordingly, the trial court did not err when it did not grant

Appellant’s summary judgment motion based on Davis’ failure to timely

answer said motion. See Yorty, supra.

Furthermore, the rule also explicitly gives the trial court the authority

to rule on the motion for summary judgment without a written response if

no party is prejudiced, i.e., if there has been a full and fair opportunity to

oppose the motion for summary judgment. Pa.R.C.P. 1035.3(e). The trial

court found the brief in opposition to summary judgment and the motion for

judgment on the pleadings filed by Davis were responsive to Appellant’s

motion for summary judgment. Trial Court Opinion, 10/27/14, at 6. The

record demonstrates Davis was given a full and fair opportunity to respond

to Appellant’s motion for summary judgment and specifically addressed

Appellant’s arguments in her brief opposing the summary judgment motion

and her own motion for judgment on the pleadings, which were

simultaneously argued to and decided by the trial court. As such, we

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

when it denied Appellant’s summary judgment motion based on a finding

that Davis timely responded to the motion. See Pa.R.C.P. 1035.3; Yorty,

supra.

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Appellant next argues, “[t]he [trial] court [] erred in its application of

the law … to the judgment on the pleadings.” Appellant’s Brief at 15-16.

Specifically, Appellant contends, “[t]he court erred in applying the law and

abused its discretion in determining the statements made by [Davis] were

not defamatory and not capable of defamatory meaning …” Id. at 11-12.

Further, Appellant claims the trial court erred “in not finding actual malice.”

Id. at 12.

When considering the grant of a motion for judgment on the pleadings,

we adhere to the following standard of review.

Entry of judgment on the pleadings is permitted

under Pennsylvania Rule of Civil Procedure 1034,

which provides that “after the pleadings are closed,

but within such time as not to unreasonably delay

trial, any party may move for judgment on the

pleadings.” Pa.R.C.P. 1034(a). A motion for

judgment on the pleadings is similar to a demurrer.

It may be entered when there is no disputed issues

of fact[,] and the moving party is entitled to

judgment as a matter of law.

Appellate review of an order granting a motion for

judgment on the pleadings is plenary. The appellate

court will apply the same standard employed by the

trial court. A trial court must confine its

consideration to the pleadings and relevant

documents. The court must accept as true all well

pleaded statements of fact, admissions, and any

documents properly attached to the pleadings

presented by the party against whom the motion is

filed, considering only those facts which were

specifically admitted.

We will affirm the grant of such a motion only when

the moving party’s right to succeed is certain and the

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case is so free from doubt that the trial would clearly

be a fruitless exercise.

Sw. Energy Prod. Co. v. Forest Res., LLC., 83 A.3d 177, 185 (Pa. Super.

2013) (citation omitted), appeal denied, 96 A.3d 1029 (Pa. 2014).

We now proceed to determine whether Davis’ right to succeed against

Appellant was certain. If it was, then the trial court’s action was proper.

See id. In a defamation case, the plaintiff has the burden of proof on 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.

…

42 Pa.C.S.A. § 8343(a).

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In this case, the trial court found Appellant did not meet his burden

because the statements purportedly made by Davis “were not capable of a

defamatory meaning.” Trial Court Opinion, 4/11/14, at 4; Trial Court

Opinion, 10/27/14, at 12. “It is the function of the trial court to determine,

in the first instance, whether the communication complained of is capable of

defamatory meaning.” Kurowski v. Burroughs, 994 A.2d 611, 616 (Pa.

Super. 2011) (citations omitted), appeal denied, 12 A.3d 752. “If the court

determines that the challenged [communication] is not capable of a

defamatory meaning, there is no basis for the matter to proceed to trial.”

Weber v. Lancaster Newspapers, Inc., 878, A2d 63, 78 (Pa. Super.

2005) (citation omitted), appeal denied, 903 A.2d 539 (Pa. 2006). The

determination of whether a statement is defamatory turns on “if it tends to

harm the reputation of another so as to lower him in the estimation of the

community or deter third persons from associating or dealing with him.” Id.

(citations omitted). Further, when considering whether a communication is

slanderous, “the Court must determine the effect of the communication in

the minds of average people amongst whom the communication is intended

to circulate.” Reardon v. Allegheny Coll., 926 A.2d 477, 484 (Pa. Super.

2007) (citation omitted). A statement is “defamatory if it ascribes to

another conduct, character or a condition that would adversely affect his

fitness for the proper conduct of his business.” Constantino v. Univ. of

Pittsburgh, 766 A.2d 1265, 1270 (Pa. Super. 2001) (citation omitted), “It

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is not enough that the victim of the [statements] … be embarrassed or

annoyed, he must have suffered the kind of harm which grievously fractured

his standing in the community.” Kurowski, supra at 617-618 (citations

omitted).

Appellant specifically alleged Davis made the following statements.

A. [A]t the first mayoral debate [Davis] said words

to the effect that:

[W]e needed to look at our vendors. Our

city police department our officers pulling

someone over are waiting one hour to one and

one half hours to tow a vehicle away;

B. at the second mayoral debate [Davis] said words

to the effect that:

I have ideas city vendors and services

need to be looked at. City police officers are

sometimes waiting one hour to one and one

half hours for a tow truck to show up; and

C. at a meeting of City Council [Davis] said words to

the effect that:

The city towing contract should not be

extended and should be advertised so that the

best possible person is serving the City and

suggested two other towers who were

allegedly in the city.

Appellant’s Complaint, 7/6/11, at 3, ¶ 8.

Applying the above principles to the alleged statements, we agree with

the trial court that they are incapable of carrying defamatory meaning. With

regard to the first two comments, it cannot be concluded, as a matter of

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law, that “sometimes” an hour to one and one-half hour delay for a tow

truck to arrive would result in the type of harm that would grievously

fracture Appellant’s standing in the community. See Kurowski, supra at

617-618. Nor can their effect on the average person hearing such

communication be that Appellant is incapable of properly conducting his

business, i.e., towing vehicles. See Reardon, supra; Constantino, supra.

Further, regarding the third alleged statement, the suggestion that the city

should advertise the towing contract in order to find the best service

provider does not ascribe any conduct, character, or condition to Appellant,

much less such conduct, character, or condition that would adversely affect

his fitness for the proper conduct of his business. See Constantino, supra.

Accordingly, we conclude the trial court properly granted Davis’ motion for

judgment on the pleadings, as permitting these claims to proceed to trial

would be a fruitless exercise.4 See Sw. Energy Prod. Co., supra.

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4

Because we conclude the statements were not defamatory, we need not

analyze whether the statements sufficiently identified Appellant as the

subject. See Weber, supra. (observing that it is the function of the trial

court to first determine if the challenged statements are defamatory, and if

they are not, there is no basis for the case to proceed). Likewise, whether

or not Davis made the alleged statements with malice is not relevant, given

our determination that the statements are not defamatory. See id.

However, we observe Appellant is a private figure; therefore, Appellant was

not required to prove the comments were made with actual malice. See

Norton v. Glenn, 860 A.2d 48, 56 (Pa. 2004) (concluding, “the U.S.

Supreme Court has, pursuant to the actual malice standard, provided

considerable protection to defendants in defamation actions filed by public

(Footnote Continued Next Page)

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In Appellant’s final issue on appeal, he suggests that the trial court

should have disclosed to Appellant a “potential conflict” that would be

material to Appellant in considering whether to file a motion for recusal.

Appellant’s Brief at 20.

Initially, “[w]e recognize that our trial judges are honorable, fair, and

competent, and although we employ an abuse of discretion standard, we do

so recognizing that the judge himself is best qualified to gauge his ability to

preside impartially.” In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014)

(internal quotation marks and citation omitted).

However, before we address Appellant’s claim, we first address the

argument by Davis and the trial court that Appellant failed to preserve this

issue for review. Davis’ Brief at 11; Trial Court Opinion, 10/27/14, at 8. It

is fundamental that “only issues properly presented in the lower court are

preserved for appeal.” Coulter v. Ramsden, 94 A.3d 1080, 1089 (Pa.

Super. 2014), appeal denied, --- A.3d ---, 2014 WL 6978349 (Pa. 2014);

accord Pa.R.A.P. 302(a). Moreover, “[a] party seeking recusal or

disqualification [is required] to raise the objection at the earliest possible

moment, or that party will suffer the consequence of being time barred.” In

Re Lokuta, 11 A.3d 427, 437 (Pa. 2011). Indeed, “[i]t is the duty of the

_______________________

(Footnote Continued)

officials and public figures[]” and declining to abandon the standard in

Pennsylvania).

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party asserting disqualification to file the petition in a timely fashion.”

Coulter, supra (citation omitted).

In this case, Appellant notes, “[s]ubsequent to the entry of the [trial

c]ourt’s decision several things came to light raised in a [p]etition for

[r]econsideration.” Appellant’s Brief at 19. In Appellant’s petition for

reconsideration, he alerted the trial court to this potential conflict as follows.

11. Subsequent to the entry of the [trial

c]ourt’s decision[,] several things came to light

which [Appellant] must also raise and place on the

record, namely:

A. [Davis] specifically requested to have the

issuing jurist swear [her] in when she took her

oath of office;

B. [Davis’] attorney was the campaign

chairperson for the issuing jurist’s husband’s

judicial campaign;

C. [Davis’] attorney may have also contributed

the issuing jurist’s husband’s campaign.

All of which when taken as a whole leads to an

appearance of impropriety[.] In that this jurist has

the case on her docket. The [trial c]ourt was so

aware[,] never [i]ndicating the same and [Appellant]

was not.

12. A newspaper article subsequent to said

decision indicates said counsel and his client

“expected to win all along” and that “[Davis] never

mentioned them by name. …

13. Counsel apparently knew of the various

conflicts and never mentioning someone by name is

clearly not the law ….

…

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Wherefore, [Appellant] requests for all of the

aforementioned reasons the [trial c]ourt reconsider

its decision and enter [s]ummary [j]udgment against

[Davis].

Appellant’s Petition for Reconsideration, 4/21/14, at 4-5.

The trial court addressed Appellant’s argument as follows.

[] Appellant never filed a written recusal

motion nor did he make an oral motion or petition

asking the [trial c]ourt to recuse. [] Appellant raised

the issue … during argument of the [r]econsideration

[p]etition on May 15, 2014. … Though two and one

half months elapsed between the date of argument

and the [trial court opinion], no motion was ever

brought to this [c]ourt. From the [trial c]ourt’s

perspective, it was clear that the impromptu

accusation of partiality was made in desperation to

save Appellant’s case from dismissal. Appellant has

waived the issue on appeal by failing to raise it on

the record. This is an improper issue to allege at an

appellate stage.

Trial Court Opinion, 10/27/14, at 8-9 (footnote and citation omitted). We

agree with the trial court that Appellant failed to properly preserve this issue

for review. Although Appellant brought the potential conflicts to the trial

court’s attention, Appellant never sought recusal. Specifically, in his petition

for reconsideration, the only relief Appellant sought was a request for entry

of summary judgment against Davis. Appellant’s Petition for

Reconsideration, 4/21/14, at 5. Appellant had the opportunity to properly

seek recusal of the trial court prior to raising the issue on appeal and failed

to do so. Indeed, Appellant’s petition for reconsideration, wherein he lists

the perceived, potential conflicts yet does not request recusal, demonstrates

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that he had occasion to seek recusal as soon as the information was

available but inexplicably did not seek such remedy. See Appellant’s

Petition for Reconsideration, 4/21/14, at 4-5. Accordingly, because

Appellant never sought recusal of the trial court, he failed to properly

preserve this issue, and we conclude it is waived.5 See Coulter, supra;

Lokuta, supra; Pa.R.A.P. 302(a)

Based on the foregoing, we conclude all of Appellant’s issues on appeal

are devoid of merit or waived. Accordingly, the trial court’s July 30, 2014

order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015

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5

In addition to finding the issue waived, the trial court addressed its

impartiality in its Rule 1925(a) opinion. “In this matter [the trial court]

applied the law to the pleaded facts. No other factor influenced [the trial

court’s] decision.” Trial Court Opinion, 10/27/14, at 10. Had the trial court

denied a request for recusal, we would conclude, based on our review of the

record, that the trial court did not abuse its discretion. See A.D., supra.

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