J-A22006-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LUIGI DEFRANCESCO,

 Appellant

v.

JEFFREY A. BROOKS 

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1485 WDA 2021

Appeal from the Judgment Entered November 24, 2021

In the Court of Common Pleas of Crawford County Civil Division at No(s): 

AD 2021-372

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: DECEMBER 28, 2022

Appellant, Luigi DeFrancesco, appeals pro se from an order entered in 

the Court of Common Pleas of Crawford County on November 24, 2021. The 

order challenged on appeal awarded summary judgment in favor of Jeffrey A. 

Brooks (Brooks) and dismissed Appellant’s defamation claims. We affirm.

Appellant and Brooks are both members of the Penncrest public school 

board in Crawford County. On July 15, 2021, Appellant filed a pro se civil 

complaint alleging that Brooks defamed him in seven separate social media 

posts discussing Appellant’s conduct and policy viewpoints relevant to 

Penncrest school board functions.1 Appellant’s complaint alleged that Brooks

published statements that were false, malicious, and harmful to Appellant. 

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* Retired Senior Judge assigned to the Superior Court.

1

In its November 24, 2021 opinion and order, the trial court described in 

detail each posting by Brooks that is alleged to have defamed Appellant. See 

Trial Court Opinion, 11/24/21, at 3-10.
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The complaint further alleged that Brooks knew his statements were false but 

proceeded with publication in reckless disregard of the truth. Appellant 

complained that Brooks’ statements impaired his reputation within the 

community, which had negative effects on his business, social, and family 

relationships. For each of these reasons, Appellant claimed that he made the 

requisite showing under 42 Pa.C.S.A. § 8343 (setting forth the burdens of 

proof allocated to the parties in an action for defamation) and that he was 

entitled to recover $30,000.00 in damages from Brooks.

On July 27, 2021, Brooks responded to Appellant’s complaint. 

Thereafter, on August 11, 2021, Appellant filed a motion for summary 

judgment. Appellant filed a brief in support of his motion on August 19, 2021 

and filed an addendum to his motion/brief on September 20, 2021. The trial 

court entertained oral argument by the parties on September 27, 2021 and, 

by order and opinion entered on November 24, 2021, awarded judgment in 

favor of Brooks, concluding (as a matter of law) that the challenged 

statements were incapable of defamatory meaning and that the record was 

devoid of proof that Brooks harbored actual malice2 when he published the 

challenged remarks.

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2 The trial court applied a legal standard that required actual malice in the 

publication of defamatory statements since Appellant was an elected member 

of the Penncrest public school board. See Trial Court Opinion, 11/24/21, at 

2, quoting American Future Systems, Inc. v. Better Business Bureau of 

Eastern Pennsylvania, 923 A.2d 389, 400 (Pa. 2007) (“If the plaintiff is a 

public official or public figure [] and the statement relates to a matter of public 

(Footnote Continued Next Page)
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Appellant filed a notice of appeal on December 15, 2021. On December 

23, 2021, the trial court, pursuant to Pa.R.A.P. 1925(b), ordered Appellant to 

file and serve a concise statement of errors complained of on appeal within 21 

days. Appellant timely complied on December 29, 2021. The trial court issued 

its opinion under Pa.R.A.P. 1925(a) on January 5, 2021.3

On appeal, Appellant claims that the trial court erred and/or abused its 

discretion in refusing to enter summary judgment in his favor. First, Appellant 

claims that the trial court abused its discretion in relying upon Brooks’ 

response to Appellant’s complaint since the response was never served and

“contained neither [an] oath nor affirmation, nor any proof.” Appellant’s Brief 

at 12 and 14. Second, Appellant claims that the trial court abused its 

discretion in denying his motion for summary judgment because Appellant 

offered proof that Brooks’ statements were false, Brooks failed to demonstrate 

that his comments were true, and Brooks’ repeated publication of false 

statements demonstrated actual malice.

When reviewing a grant of summary judgment, the scope and standard 

of review are as follows:

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concern, then to satisfy First Amendment strictures the plaintiff must establish 

that the defendant made a false and defamatory statement with actual 

malice.”) (citations omitted).

3

In its Rule 1925(a) opinion, the court incorporated its November 24, 2021 

determinations that “the seven statements alleged by [Appellant] were

individually and collectively found incapable of defamatory meaning nor was 

there evidence of any actual malice by Brooks.” Trial Court Opinion, 1/5/22, 

at 2.
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In reviewing an order granting summary judgment, our scope of 

review is plenary, and our standard of review is the same as that 

applied by the trial court. Our Supreme Court has stated the 

applicable standard of review as follows: an appellate court may 

reverse the entry of a summary judgment only where it finds that 

the lower court erred in concluding that the matter presented no 

genuine issue as to any material fact and that it is clear that the 

moving party was entitled to a judgment as a matter of law. In 

making this assessment, we view the record in the light most 

favorable to the nonmoving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. As our inquiry involves solely questions 

of law, our review is de novo.

Thus, our responsibility as an appellate court is to determine 

whether the record either establishes that the material facts are 

undisputed or contains insufficient evidence of facts to make out 

a prima facie cause of action, such that there is no issue to be 

decided by the fact-finder. If there is evidence that would allow a 

fact-finder to render a verdict in favor of the non-moving party, 

then summary judgment should be denied.

Jones v. Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007) (internal citations 

omitted).

We first consider Appellant’s claim that the trial court erred and/or 

abused its discretion in considering Brooks’ response to the complaint when 

denying Appellant’s motion. We then address the merit of Appellant’s 

substantive defamation claims.

Appellant complains that the trial court should have entered judgment 

in his favor since Brooks did not respond to the complaint or, alternatively, 

Brooks’ responsive submission was unsigned and unverified. See Appellant’s 

Brief at 13-14. In rejecting this claim, the trial court stated in its January 5, 

2022 Rule 1925(a) opinion that:
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Contrary to [Appellant’s] contention, Brooks in fact timely filed a 

document titled “Response,” in which he specifically disputed each 

of [Appellant’s] seven claims for defamation. While Brooks’ 

response reflected its pro se authorship, there was never a motion 

to strike it filed by [Appellant]. Hence, it remains a pleading in 

which Brooks set forth his reasons why each of [Appellant’s] 

claims are without merit.

Secondly, at no time did [Appellant] ever file or serve on Brooks 

a [n]otice of [i]ntention to [t]ake [d]efault [j]udgment for [f]ailure 

to [f]ile an [a]nswer pursuant to Pa.R.C.P. 237.1(a)(2)(ii). 

Without the required praecipe putting Brooks on a ten-day notice 

of a possible default judgment against him, [Appellant] is not 

entitled to any relief.

Notably, [Appellant’s m]otion for [s]ummary [j]udgment filed on 

August 11, 2021 was an attempt to snap a judgment prematurely.

Thirdly, [Appellant] did not contend or establish that he suffered 

any prejudice. He has been on notice of the challenges by Brooks

to his [c]omplaint by virtue of the written [r]esponse filed a week 

after service of the [c]omplaint on Brooks (and 12 days after the 

[c]omplaint was filed).

Trial Court Opinion, 1/5/22, at 2.

We agree with the trial court’s conclusion that, in the circumstances of 

this case, Appellant is not entitled to relief. Here, Brooks’ response to 

Appellant’s complaint did not fully comport with our rules of civil procedure. 

As the trial court correctly observed, however, if Appellant objected to the

form (or lack of service) of Brooks’ response, he had the option to move to 

strike the responsive submission or he could pursue a default judgment after

filing a ten-day notice. Appellant did neither. Instead, Appellant elected to 

seek summary judgment, a procedural device aimed at testing the substantive 

merit of Appellant’s defamation claims. Our procedural rules employ certain 
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safeguards which preclude the entry of adverse judgments without first 

affording a party some opportunity to cure defective submissions. The trial 

court did not err in observing those procedural prerequisites.

We now address Appellant’s claims that the trial court erred in rejecting 

the substantive merit of his defamation claims.

In an action for defamation, the plaintiff must prove: (1) the 

defamatory character of the communication; (2) publication by 

the defendant; (3) its application to the plaintiff; (4) 

understanding by the recipient of its defamatory meaning; (5) 

understanding by the recipient of it as intended to be applied to 

plaintiff; (6) special harm to the plaintiff; (7) abuse of a 

conditionally privileged occasion. Initially, it is the function of the 

court to determine whether the communication complained of is 

capable of a defamatory meaning. 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. A communication 

is also 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. If the court 

determines that the challenged publication is not capable of a 

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

to trial; however, if there is an innocent interpretation and an 

alternate defamatory interpretation, the issue must proceed to the 

jury.

Further, when determining whether a communication is 

defamatory, the court will consider what effect the statement 

would have on the minds of the average persons among whom 

the statement would circulate. The words must be given by 

judges and juries the same significance that other people are likely 

to attribute to them.

When raised by a public official concerning statements bearing on 

a matter of public concern, claims for defamation are subject to

an onerous standard of proof, owing to considerations of free 

speech that inhere to any claim that implicates the First 

Amendment. See Milkovich v. Lorain Journal Co., 497 U.S. 1

(1990) (emphasizing the obligation of appellate courts to ensure 
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that judgments entered pursuant to state tort law do not intrude 

on the “field of free expression”). Consequently, our Courts' First 

Amendment jurisprudence makes clear that “statements on 

matters of public concern must be provable as false before there 

can be liability under state defamation law, at least in situations 

... where a media defendant is involved[.]” Id. at 19–20, citing

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 

(1986).[4] Moreover, even “a statement of opinion relating to 

matters of public concern that does not contain a provably false 

connotation will receive full constitutional protection.” Milkovich

497 U.S. at 19-20, citing Hepps, supra.

Krajewski v. Gusoff, 53 A.3d 793, 802-803 (Pa. Super. 2012); see also 42 

Pa.C.S.A. § 8343 (delineating the parties’ burden of proof in a defamation 

action).

In Weber v. Lancaster Newspapers, Inc., et al., 878 A.2d 63 (Pa. 

Super. 2005), appeal denied, 903 A.2d 539 (Pa. 2006), this Court explained 

the test used to determine whether a communication has “defamatory 

character:”

In an action for defamation, the plaintiff has the burden of proving 

... the defamatory character of the communication. It is the 

function of the court to determine whether the challenged 

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4

In Hepps and Milkovich, the United States Supreme Court reserved 

judgment on whether the requirement of actual malice applied in cases that 

did not involve media defendants. See Hepps, 475 U.S. at 779 n.4; see also 

Milkovich, 497 U.S. at 20 n.6. Our own decisions, however, appear to extend 

the actual malice rule to cases that do not involve media defendants, so long 

as the challenged statement involved a matter of public concern. See Kuwait 

& Gulf Link Transport Co. v. Doe, 216 A.3d 1074, 1087 n.4 (Pa. Super. 

2019) (rejecting claim that plaintiff in defamation cases did not have to show 

falsity where defendant was not part of the news media and concluding that 

“a plaintiff asserting defamation concerning a publication of a matter of ‘public 

concern’ bears the burden of proving that the publication was false”), appeal 

denied, 226 A.3d 92 (Pa. 2020). As stated above, Brooks’ postings pertained 

to Appellant’s conduct and policy viewpoints concerning a local school board.
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publication is capable of a defamatory meaning. If the court 

determines that the challenged publication is not capable of a 

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

to trial.

To determine whether a statement is capable of a defamatory 

meaning, we consider whether the statement tends so to harm 

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

community or to deter third parties from associating or dealing 

with him. Libel is the malicious publication of printed or written 

matter which tends to blacken a person's reputation and expose 

him to public hatred, contempt or ridicule. The court must view 

the statements in context.

Words which standing alone may reasonably be understood as 

defamatory may be so explained or qualified by their context as 

to make such an interpretation unreasonable. Thus, we must 

consider the full context of the article to determine the effect the 

article is fairly calculated to produce, the impression it would 

naturally engender, in the minds of the average persons among 

whom it is intended to circulate.

It 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 of 

respectable society.

Weber, 878 A.2d at 78, quoting Tucker v. Phila. Daily News, 848 A.2d 

113, 123–124 (Pa. 2004) (internal citations and quotations omitted); 

Scott-Taylor Inc. v. Stokes, 229 A.2d 733, 734 (Pa. 1967); Blackwell v. 

Eskin, 916 A.2d 1123, 1125 (Pa. Super. 2007).

In determining whether a statement is capable of defamatory meaning, 

a distinct standard is applied if the publication is of an opinion. Veno v. 

Meredith, 515 A.2d 571, 575 (Pa. Super. 1986), appeal denied, 616 A.2d 

986 (Pa. 1992). “A statement in the form of an opinion is actionable only if it 

may reasonably be understood to imply the existence of undisclosed 
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defamatory facts justifying the opinion. A simple expression of opinion based 

on disclosed ... facts is not itself sufficient for an action of defamation.” Id.

(internal citations omitted); see also Neish v. Beaver Newspapers, Inc.,

581 A.2d 619, 622–624 (Pa. Super. 1990), appeal denied, 593 A.2d 421 (Pa. 

1991) (criticism of the way appellant handled his job and suggestions that he 

should be replaced were opinions not based on undisclosed defamatory facts 

and were not actionable; while statements “might be viewed as annoying and 

embarrassing, [they were] not tantamount to defamation”).

We have carefully reviewed the certified record, the submissions of the 

parties, and the pertinent case law. Based upon our review, we conclude that 

the trial court correctly determined, as an initial matter of law, that Brooks’ 

seven social media postings were either true or incapable of defamatory 

meaning since they pertained to matters of public concern (e.g. Penncrest 

school board policy and functions), could not reasonably be understood to 

have grievously fractured Appellant’s standing in the community, and/or

because the statements simply expressed opinions based on known facts and 

did not imply the existence of undisclosed false or defamatory facts. See Trial 

Court Opinion, 11/24/21, at 3-10. As such, the trial court properly entered 

judgment in favor of Brooks. Because we further conclude that the trial court 

adequately and accurately resolved the issues Appellant raised on appeal, we 

adopt the trial court’s November 24, 2021 opinion as our own. The parties 
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are therefore directed to include a copy of the trial court’s November 24, 2021 

opinion with all future filings pertaining to the disposition of this appeal.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/28/2022
Circulated 11/30/2022 03:50 PM