J-A15031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN M. MORLEY, JR. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
STACEY ANNE COLLAZZO
Appellee No. 2852 EDA 2015
Appeal from the Order Entered August 7, 2015
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 140902787
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 14, 2016
John M. Morley, Jr. (“Appellant”) appeals, pro se, from the August 7,
2015 order of the Philadelphia County Court of Common Pleas granting
Appellee Stacey Anne Collazzo (“Appellee”) summary judgment. After
careful review, we affirm.
The relevant facts and procedural posture of this matter are as follows.
Appellant and Appellee were involved in a romantic relationship that began
in 2009 and ended in April or May of 2013. On September 30, 2013 and
October 1, 2013, the Chief Nursing Officer at Hahnemann University
Hospital, where Appellee was employed as a nurse, received anonymous
letters that enclosed naked photographs of Appellee and alleged that
Appellee shoplifted and used opiates. As a result of these letters, Appellee
filed a police report against Appellant and, on October 8, 2013, filed a
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petition for a protection from abuse order (“PFA”). The PFA petition claimed
Appellant sent the letters and naked photographs of Appellee to her
employer, that Appellant had told people in a bar explicit details of Appellant
and Appellee’s sex life, that Appellant once demanded sex from Appellee,
that Appellant was verbally abusive, and that Appellant suffers from
depression. The PFA court issued a temporary full stay away order after the
hearing on October 8, 2013.
On September 22, 2014, Appellant filed a complaint against Appellee
sounding in defamation, false light, and abuse of process based on
allegations that Appellee lied in her petition for the purpose of gaining a PFA
against Appellant. Appellee filed preliminary objections to the complaint
averring that her statements at the PFA hearing were protected by an
absolute privilege because they were made in the course of judicial
proceedings, that the alleged defamatory statements had not been published
beyond the court proceedings, and that Appellant had not alleged an
improper motive.
Appellant filed an amended complaint that, together with the
defamation, false light, and wrongful use of civil procedure counts, included
allegations that Appellee had published the defamatory statements to
numerous persons. Specifically, the amended complaint alleged that on
October 5, 2013, Appellee’s friend accused Appellant of contacting Appellee’s
employer and sending “lascivious photographs” of Appellee to her employer.
The amended complaint also claimed that Appellee’s friend had stated that
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Appellant was mentally ill and should seek medical help. The amended
complaint further averred that Appellee falsely stated Appellant’s address in
her petition, thus preventing the Philadelphia Police Department from
properly serving him with the PFA. Appellant claimed he learned of the PFA
only after attempting to purchase a firearm on October 11, 2013.
Appellee filed preliminary objections to the amended complaint. After
Appellant filed an answer, the trial court overruled Appellee’s preliminary
objections on January 14, 2015.
On January 16, 2015, Appellee filed an answer to Appellant’s amended
complaint. In her answer, Appellee denied Appellant’s claims and raised as
a new matter (1) that Appellant’s claims were barred because Appellee’s
actions were not the proximate cause of Appellant’s injury, (2) the defense
of privilege because the statements were made in the course of judicial
proceedings, and (3) the defense of the truth. Appellee further raised an
abuse of process counterclaim that averred Appellant filed the instant suit as
part of a two-year campaign of abuse instigated by Appellant upon Appellee
after she ended their romantic relationship in 2013.
Later in January, Appellant noticed Appellee’s deposition, requesting
that Appellee bring with her to the deposition: “any and all writings between
you and the Pennsylvania Department of State, Nurse board; and any and
all writings between you and your employer(s) since Wednesday, July 29,
2009.” On January 26, 2015, Appellee filed a discovery hearing request and
a motion for a protective order based on Appellant’s notice arguing that the
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requested correspondence was irrelevant, not reasonably calculated to lead
to the discovery of admissible evidence, and an attempt by Appellant to use
the court system to harass and invade Appellee’s privacy in her personal and
professional life.
On February 13, 2015, the trial court ordered that Appellee was not
required to produce the requested writings at the deposition. Appellant filed
a motion for reconsideration, which the court denied on February 18, 2015.
On February 27, 2015, Appellant filed a motion for judgment on the
pleadings, which the trial court dismissed on March 30, 2015.
Appellee filed a motion for summary judgment on June 12, 2015,
which the trial court granted on August 7, 2015.1 Appellant filed a timely
notice of appeal on September 2, 2015, and a Pa.R.A.P. 1925(b) statement
on September 21, 2015. The trial court filed its 1925(a) Opinion on
November 9, 2015.
Appellant raises the following four (4) claims for review:
[1.] Are writings between [Appellee] and the Pennsylvania
Department of State Nurse Board and her employer reasonably
calculated to lead to the discovery of admissible evidence?
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1
This is a simplification of the procedural posture. Between the June 12,
2015 filing of Appellee’s motion for summary judgment and the trial court’s
August 5, 2015 grant thereof, Appellant filed multiple filings to which
Appellee filed multiple responses. We have omitted the specifics of these
filings, however, because they do not bear on the instant appeal.
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[2.] Did the trial court abuse it’s [sic] discretion when it sua
sponte ordered [Appellee’s] counsel to not waive objections at
the deposition of [Appellee]?
[3.] Is [Appellee], who appeared without [s]ubpoena in the
underlying [PFA] Court, in an ex parte hearing, wherein hearsay
was considered and no criminal proceeding against [Appellant]
was pending, entitled to Judicial or Witness Immunity?
[4.] Are material facts in dispute?
Appellant’s Brief, p. 5.
This Court’s scope and standard of review on an appeal from the grant
of a motion for summary judgment is well settled:
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 the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Herder Spring Hunting Club v. Keller, 93 A.3d 465, 468
(Pa.Super.2014), reargument denied (July 11, 2014), appeal granted, 108
A.3d 1279 (Pa.2015) (quoting Shamis v. Moon, 81 A.3d 962, 968–69
(Pa.Super.2013)).
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Appellant’s first two claims deal with the trial court’s February 12,
2015 discovery order.2 First, Appellant claims the trial court erred by ruling
that Appellee need not produce at her deposition writings between herself
and the state Board of Nurses, and herself and her employers from 2009
through the date of the deposition. See Appellant’s Brief, p. 13-16.
Second, Appellant claims the trial court erred by sua sponte directing
Appellee’s counsel to not waive objections at the deposition, but instead to
place all objections on the record. See id. at 16-18. These claims lack
merit.3
Generally, on review of an order concerning discovery, an
appellate court applies an abuse of discretion standard. To the
extent that the question involves a pure issue of law, our scope
and standard of review are plenary.
Crum v. Bridgestone/Firestone N. Am. Tire, LLC, 907 A.2d 578, 585
(Pa.Super.2006) (internal citations and quotations omitted); see also PECO
____________________________________________
2
The trial court filed the original order on February 12, 2015. The February
18, 2015 order denied Appellant’s requested reconsideration of the February
12, 2015 order.
3
The trial court and Appellee argue these discovery claims are either non-
appealable as interlocutory or waived as untimely. See Appellee’s Brief, pp.
7-9; 1925(a) Opinion, pp. 13-14. Appellant alleges the claims are an appeal
of a collateral order (or, if interlocutory, properly brought following a final
order in the case). See Appellant’s Brief, pp. 1-2. “Generally, discovery
orders are deemed interlocutory and not immediately appealable because
they do not dispose of the litigation.” Dougherty v. Heller, 97 A.3d 1257,
1261 (Pa.Super.2014). The instant appeal was timely taken after the trial
court issued a final order granting summary judgment. Therefore, we
decline to find Appellant’s claims either interlocutory or waived.
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Energy Co. v. Insurance Co. of North America, 852 A.2d 1230, 1233
(Pa.Super.2004) (“The trial court is responsible for ‘[overseeing] discovery
between the parties and therefore it is within that court’s discretion to
determine the appropriate measure necessary to insure adequate and
prompt discovering of matters allowed by the Rules of Civil Procedure.”).
Pennsylvania’s Rules of Civil Procedure permit discovery regarding
“any matter, not privileged, which is relevant to the subject matter involved
in the pending action,” whether or not admissible at trial, provided that “the
information sought appears reasonably calculated to lead to the discovery of
admissible evidence.” Pa.R.C.P. 4003.1. The Rules prohibit, however,
irrelevant discovery, or discovery sought for an improper purpose. Pa.R.C.P.
4011; see also Keystone Dedicated Logistics, LLC v. JGB Enterprises,
Inc., 77 A.3d 1, 12 (Pa.Super.2013) (“The matters about which [a
discovery] inquiry is made must bear pertinently upon the matters which he
will be required to prove affirmatively at trial.” (internal quotations and
citation omitted; emphasis deleted)). The Rules allow parties to request
protective orders to define and enforce the parameters of discovery in a
given matter. Pa.R.C.P. 4012.
Here, the trial court granted Appellee’s request for a protective order
following Appellant’s request that Appellee produce “any and all writings
between [Appellee] and the Pennsylvania Department of State, Nurse Board”
or “any writings between [Appellee] and [her] employer since Wednesday
July 29, 2009.” The instant lawsuit involves allegedly defamatory
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statements made in Appellee’s October 2013 PFA petition. Accordingly,
Appellant’s requested discovery seeks documents well beyond the scope of
the case, and the trial court did not abuse its discretion in granting
Appellee’s motion for a protective order against the production of such wide-
sweeping and irrelevant documentation.
The trial court also sua sponte included in its discovery order a
directive that Appellee’s counsel not waive objections at Appellee’s
deposition, but instead place all objections on the record with specificity so
the court would be able to rule upon them if Appellant filed any motions to
compel Appellee to answer. See Order, February 12, 2015; see also N.T.
2/12/2015, pp. 10-12. As this Court has explained: “The trial court is
responsible for overseeing discovery between the parties and therefore it is
within that court’s discretion to determine the appropriate measure
necessary to insure adequate and prompt discovering of matters allowed by
the Rules of Civil Procedure.” Berkeyheiser v. A-Plus Investigations,
Inc., 936 A.2d 1117, 1125 (Pa.Super.2007) (internal quotations and citation
omitted). Accordingly, it was within the trial court’s discretion to attempt to
expedite the pretrial discovery process by ordering counsel to place
objections on the record. This claim lacks merit.
Appellant next claims the trial court erred in determining Appellee’s
alleged defamatory statements were privileged. See Appellant’s Brief, pp.
18-23. He is incorrect.
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“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 Ins. Exch., 634 A.2d 657, 660 (Pa.Super.1993). “[O]nly statements of
fact can support an action for libel or slander, not merely expressions of
opinion.” Id.
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.
Krajewski v. Gusoff, 53 A.3d 793, 802-03 (Pa.Super.2012) (quoting Maier
v. Maretti, 671 A.2d 701, 704 (Pa.Super.1995)) (emphasis deleted).
“It has long been the law of Pennsylvania that statements made by
judges, attorneys, witnesses and parties in the course of or pertinent to any
stage of judicial proceedings are absolutely privileged and, therefore, cannot
form the basis for liability for defamation.” Richmond v. McHale, 35 A.3d
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779, 784 (Pa.Super.2012); see also Post v. Mendel, 507 A.2d 351
(Pa.1986). As a general rule, no civil liability attaches to statements made
in pleadings or during discovery, trial, or argument of a case where the
statements are pertinent, relevant, and material to any issue in the suit.
See Post, 507 A.2d at 355; see also Bochetto v. Gibson, 860 A.2d 67, 71
(Pa.2004).
Here, Appellee made the statements about which Appellant complains
in a PFA petition. The PFA petition alleged, in pertinent part, as follows:
[Appellant] has been sending damaging letters to my job, he
sent them to all the big bosses. He did not sign them but I know
its him because there’s things in the letter [sic] only he could
know. He sent nakes [sic] photos of me to my job also. He
went to a bar and was talking about our sex life in explicit detail.
My job is jeopardize [sic] now from him sending all these letter
[sic] and I am being scrutinized. On 10/5/13 I called the police
and filed a report against [Appellant] #13-01-039615.
Parties were in a relationship for 3 years. Parties [sic]
relationship ended in May 2013. In the past on one occasion
[Appellant] demanded [Appellee] have sexual relations with him.
[Appellant] was very verbally abusive to [Appellee] during the
relationship. [Appellant] told [Appellee] in the past he suffered
from depression and was prescribed medication. [Appellant] is
51 and [Appellee] is 44.
These statements were relevant and material to the claims of the PFA
petition and were made in a judicial pleading.4 Accordingly, the statements
were privileged and Appellant’s claim lacks merit.5
____________________________________________
4
Appellant acknowledged as much at the February 12, 2015 hearing on
Appellee’s petition for a protective order in which the following exchange
took place between the court and Appellant, acting pro se:
(Footnote Continued Next Page)
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Finally, Appellant argues the trial court erred in granting Appellee
summary judgment because factual disputes remain. See Appellant’s Brief,
pp. 23-32. This claim also lacks merit.
Initially, the trial court properly concluded that any statements made
in the course of the PFA proceedings were privileged and thus could not
support Appellant’s claims for defamation or false light. Further, as to
Appellee’s alleged extrajudicial statements, after receiving Appellee’s
preliminary objections to the original complaint in which she claimed she
only made statements in her PFA petition, the trial court stated:
Appellant further argues that Appellee made extrajudicial
statements to family and friends. However, although Appellant
_______________________
(Footnote Continued)
THE COURT: Let me see if I understand you. She filed a
protection from abuse order under the statutes of the
Commonwealth of Pennsylvania?
[APPELLANT]: Correct.
THE COURT: So you filed an action against her for the
statements made in that complaint?
[APPELLANT]: Right. . . .
N.T. 2/12/2015, p. 6.
5
Appellant’s claims that (1) Appellee “appeared without subpoena,” (2) the
original hearing was conducted ex parte, and (3) the trial court received and
considered hearsay testimony at the hearing have no bearing on whether
the statements in Appellee’s PFA petition are privileged, and we need not
discuss them further. Additionally, to the extent Appellant argues his
defamation claims relate to statements Appellee made to her family and
friends, he has produced no evidence to support these claims and has
alleged no special harm resulting from them.
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pled general allegations to this effect in his Amended Complaint,
Appellee specifically denied them, and Appellant has not, either
during discovery or through any other part of the proceeding,
provided any factual basis on which to support these claims.
The only possible statement Appellee made that Appellant can
point to with any specificity is that, on October 4, 2013, Appellee
spoke with Guiseppe and Salvatore Foglia, Appellant’s friends,
and asked them for help in “getting [Appellant] off [her] back . .
.” and told them that Appellant had sent letters to Appellee’s
place of employment and that she feared for her life. These are
not statements of fact but opinion, nor has Appellant plead any
special harm resulting from this statement. Appellant cannot
show defamation as a result. Consequently, Appellant has not
and cannot make out a prima facie case for [d]efamation[.]
1925(a) Opinion, p. 11.
The trial court’s conclusion is correct. Therefore, the trial court did not
abuse its discretion in granting Appellee’s motion for summary judgment as
to Appellant’s defamation claim.
The same is true of Appellant’s false light claim. A false light claim is
actually a cause of action for invasion of privacy, which the Restatement
(Second) of Torts defines as:
§ 652E. Publicity Placing Person In False Light
One who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to
liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly
offensive to a reasonable person, and
(b) 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. “Significantly, unlike the law of
defamation, false light invasion of privacy offers redress not merely for the
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publication of matters that are provably false, but also for those that,
although true, are selectively publicized in a manner creating a false
impression.” Krajewski v. Gusoff, 53 A.3d 793, 806 (Pa.Super.2012)
(internal citation omitted).
As the trial court correctly explained:
[T]he statements made in the course of the PFA hearing were
protected by an absolute privilege. Further, Appellant did not
prove that Appellee publicized any statements outside of the PFA
hearing to any one person and, in fact, specifically stated in his
deposition testimony that he did not have actual factual
knowledge of the time, place, and manner of any defamatory
statement made by Appellee to many of the people Appellant
alleged she had publicized to. Further, nothing said to the
Foglias rises to the level of offensiveness required, or the level of
recklessness required, to make out a prima facie case.
1925(a) Opinion, p. 12.
Likewise, the trial court properly awarded Appellee summary judgment
on Appellant’s abuse of process claim. The Judicial Code provides as
follows:
§ 8351. Wrongful use of civil proceedings
(a) Elements of action.--A person who takes part in the
procurement, initiation or continuation of civil proceedings
against another is subject to liability to the other for wrongful
use of civil proceedings:
(1) he acts in a grossly negligent manner or without
probable cause and primarily for a purpose other than that
of securing the proper discovery, joinder of parties or
adjudication of the claim in which the proceedings are
based; and
(2) the proceedings have terminated in favor of the person
against whom they are brought.
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42 Pa.C.S. § 8351.
As the trial court explained:
Nowhere in Appellant’s pleadings has he pled or alleged that
Appellee acted in a grossly negligent manner in filing the PFA
proceeding. Indeed, both pleadings and depositions reflect the
fact that Appellee had cause to file the action and acted
reasonably and without malice in doing so.
1925(a) Opinion, p. 13.
For the these reasons, the trial court properly granted summary
judgment in this matter. Accordingly, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
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