J-A30020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS W. SHAFFER IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
ALFRED AMBROSINI
Appellee No. 653 WDA 2017
Appeal from the Order Entered April 24, 2017
In the Court of Common Pleas of Fayette County
Civil Division at No: 552 OF 2016 G.D.
BEFORE: BOWES, STABILE, JJ., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED MARCH 28, 2018
Appellant, Thomas W. Shaffer (“Shaffer”), appeals pro se from the April
24, 2017 order entered in the Court of Common Pleas of Fayette County,
granting summary judgment in favor of Appellee, Alfred Ambrosini
(“Ambrosini”). Following review, we affirm.
Shaffer, a former part-time public defender in Fayette County, was
terminated from that position on July 29, 2013. He initiated an action in
federal court against Fayette County and Ambrosini, a former Fayette County
commissioner who voted in favor of Shaffer’s termination. Shaffer claimed
violations of his Fourteenth Amendment rights and violations of the Equal Pay
Act, and asserted state law claims based on allegedly defamatory statements
indicating Shaffer was in need of anger management training. By order
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entered February 19, 2016, the Honorable Joy Flowers Conti, Chief United
States District Judge for the Western District of Pennsylvania, granted
summary judgment in favor of Fayette County and Ambrosini on Shaffer’s
federal claims, and dismissed his state law defamation claim without prejudice
to pursue the claim in state court.
Shaffer’s case was transferred to Fayette County on March 18, 2016.
Ambrosini subsequently filed a motion for summary judgment, contending
that Shaffer failed to set forth a prima facie case of defamation because
statements made by Ambrosini about anger management were true and
because Shaffer failed to demonstrate any special damages, a required
element of a defamation claim. Shaffer filed a brief in opposition and sought
leave to amend his complaint. On November 7, 2016, the trial court denied
the motion for leave to amend. Shaffer filed an appeal to this Court from the
November 7, 2016 order but discontinued that appeal on January 23, 2017.
Shaffer v. Ambrosini, 1931 WDA 2016.1
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1 Shaffer sought to “amplify” his complaint “to specifically plead defamation
per se.” Motion for Leave to File Amended Complaint, 9/6/16, at ¶¶ 4, 22.
Ambrosini opposed the motion, contending Shaffer’s complaint asserted
defamation, claiming only that Ambrosini’s statements about Shaffer were
false and contended Shaffer had an anger issue. Amending the complaint to
allege defamation per se would not be an amplification but rather would raise
a new claim beyond the statute of limitations. Ambrosini’s Opposition to
Motion to Amend, 9/16/16, at ¶¶ 6, 22. The trial court denied the motion,
finding Shaffer was attempting to plead defamation per se beyond the
applicable statute of limitations and that the amendment would be prejudicial
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The trial court heard argument on Ambrosini’s motion for summary
judgment and granted the motion on April 24, 2017. This timely appeal
followed. Both Shaffer and the trial court complied with Pa.R.A.P. 1925.
Shaffer asks us to consider two issues on appeal:
1. Whether the trial court erred by abusing its discretion in
granting [Ambrosini’s] motion for summary judgment where its
decision lacked any factual and legal merit on the issue of truth
as to the defamatory per se statements made by [Ambrosini].
Specifically, in reference to the court’s finding that “. . . in our
judgment under the circumstances of this case, they would not
have had [‘]a different effect on the mind of those hearing than
the truth would have produced[’] with regard to whether
[Shaffer] had an anger issue.” This improper finding of fact
contradicts all of the evidence of record. More particularly, the
testimony of Pete Cordaro, Timothy Mahoney and [Shaffer]
clearly demonstrates that [Shaffer] was never referred for
anger management classes or received any such treatment
thereby creating a genuine issue of fact that could only be
resolved by a jury and not the trial judge.
2. Whether the trial court erred by abusing its discretion in
granting [Ambrosini’s] motion for summary judgment where its
decision lacked any factual and legal merit on the issue of
consent to privileged medical information. Specifically,
[Shaffer] never orally or in written form consented to the
release of privileged medical information from [Ambrosini] to
Pete Cordaro and Timothy Mahoney. This improper finding of
fact contradicts all of the evidence of record. More particularly,
the testimony of [Ambrosini], Pete Cordaro, Timothy Mahoney
and [Shaffer] clearly demonstrates that [Shaffer] never gave
any written or oral consent for [Ambrosini] to provide any
medical information to anyone thereby creating a genuine issue
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to Ambrosini. Trial Court Order, 12/7/16, at 1-2. Shaffer does not challenge
the trial court’s ruling in this appeal.
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of fact that could only be resolved by a jury and not the trial
judge.
Appellant’s Brief at 4.
Before addressing Shaffer’s issues, we note that Ambrosini asked us to
dismiss this appeal pursuant to Pa.R.A.P. 2101 (Conformance with
Requirements) and Pa.R.A.P. 2188 (Consequence of Failure to File Brief and
Reproduced Records). Ambrosini contended Shaffer failed to file a designation
of the parts of the record to be included in the reproduced record and then
filed a reproduced record that failed to comply with both Pa.R.A.P. 2152
(Content and Effect of Reproduced Record) and Pa.R.A.P. 2153 (Docket
Entries and Related Matter). Ambrosini argued he was prejudiced by Shaffer’s
failure to comply with the rules and suffered financial prejudice for the time
and expense of compiling and filing a supplemental reproduced record.
It is evident that Shaffer failed to comply with the referenced rules.
While we do not condone his disregard for our appellate rules, we recognize
that the documents he failed to include in the reproduced record are part of
the certified record on appeal. Therefore, while Ambrosini may have been
inconvenienced and certainly incurred the costs of supplementing the
reproduced record, our review of the issues presented in this appeal is not
impeded by Shaffer’s misstep. Therefore, we deny Ambrosini’s motion to
dismiss.
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As noted above, Shaffer’s suit against Ambrosini is a defamation action.
As our Supreme Court recognized in Joseph v. Scranton Times L.P., 129
A.3d 404 (Pa. 2015):
[The analysis of a defamation action] begins with an examination
of the relevant legislative authority which sets forth that 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.
Id. at 424 (quoting 42 Pa.C.S.A. § 8343(a) (emphasis added)).
With regard to the element of special harm from a defamatory
statement, our Supreme has stated that, “for purposes of a Pennsylvania
defamation case, proof of actual injury to a private plaintiff's reputation is a
prerequisite to the recovery of damages for other actual injuries, including
mental and emotional injuries.” Joseph, 129 A.3d at 429. Further:
[W]e have held the plaintiff must demonstrate 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. We have specifically
indicated that, as to this element, it is not enough that the victim
of the statements be embarrassed or annoyed, he must have
suffered the kind of harm which has grievously fractured his
standing in the community of respectable society.
Id. at 430 (internal quotations, citations, brackets, and ellipses omitted).
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Further, as this Court recently recognized:
[Section 8343(a)] “does not overrule the long line of cases in our
Supreme Court which hold that a slander per se is actionable
without proof of special damage.” Walker v. Grand Cent.
Sanitation, Inc., 430 Pa. Super. 236, 634 A.2d 237, 242 (1993)
(adopting Restatement of Torts as applicable law regarding
defamation per se). Under the Restatement (Second) of Torts,
defamation per se occurs when the statement ascribes to the
plaintiff any of the following: commission of a criminal offense, a
loathsome disease, serious sexual misconduct, or conduct or
characteristics that adversely affect the plaintiff's fitness to
properly conduct his profession, trade or business. Restatement
(Second) of Torts § 570. See Livingston v. Murray, 417 Pa.
Super. 202, 612 A.2d 443 (1992) (holding a statement
defamatory if it blackens or injures a person in his business or
professional reputation).
Krolczyk v. Goddard Systems, Inc., 164 A.3d 521, 531 (Pa. Super. 2017).
Turning to Shaffer’s assertion that the trial court erred or abused its
discretion by granting summary judgment in this case, we recognize the
applicable scope and standard of our review as follows:
As has been oft declared by this Court, “summary judgment is
appropriate only in those cases where the record clearly
demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.”
Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812
A.2d 1218, 1221 (2002); Pa. R.C.P. No. 1035.2(1). When
considering a motion for summary judgment, the trial court must
take all facts of record and reasonable inferences therefrom in a
light most favorable to the non-moving party. Toy v.
Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 195
(2007). In so doing, the trial court must resolve all doubts as to
the existence of a genuine issue of material fact against the
moving party, and, thus, may only grant summary judgment
“where the right to such judgment is clear and free from all
doubt.” Id. On appellate review, then,
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an appellate court may reverse a grant of summary
judgment if there has been an error of law or an abuse of
discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law,
and therefore, on that question our standard of review is de
novo. This means we need not defer to the determinations
made by the lower tribunals.
Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d
899, 902–03 (2007) (internal citations omitted). To the extent
that this Court must resolve a question of law, we shall review the
grant of summary judgment in the context of the entire record.
Id. at 903.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).
As reflected in the above passage, the trial court is to consider all facts,
as well as reasonable inferences from those facts, in a light most favorable to
Shaffer as the non-moving party. The trial court encapsulated the underlying
facts in its Rule 1925(a) opinion. We repeat that summary here, finding it
represents the facts in a light most favorable to Shaffer.
Here we believe it is undisputed that [Shaffer] was employed as a
part-time public defender and was suspended with pay following
an incident in the Public Defender’s Office of Fayette. County. He
was referred to the Employee Assistance Program with goals
which included anger management. Adam Sedlock, as part of the
referral, administrated a Minnesota [Multiphasic (“MMPI”)] Test
and found [Shaffer] did not require participation in an anger
management program. [Shaffer] returned to work on November
29, 2012. Eight months later he was involved in a disruptive
incident in a magisterial judge’s office following which he was
suspended without pay. During the County’s investigation into
the incident and its decision[-]making process as to [Shaffer’s]
future at the Public Defender’s Office, [Shaffer] requested two
individuals, Mr. Cordaro and Mr. Mahoney, to speak to [Ambrosini]
on his behalf. [Ambrosini’s] statements to Cordaro were that he
believed [Shaffer] needed anger management classes or that he
may have been referred to anger management. [Ambrosini’s]
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statement to Mahoney was that he thought [Shaffer] was in anger
management and that there would not be a conclusion until the
anger management was over. To the extent that those
statements conveyed the message that [Shaffer] was required to
enroll in anger management, they were not accurate.
Trial Court Opinion, 4/24/17, at 5-6.
In support of its grant of summary judgment, the trial court explained:
[I]n our judgment, under the circumstances of this case,
[Ambrosini’s statements] would not have had a “different effect
on the mind of those hearing than the truth would have produced”
with regard to whether [Shaffer] had an anger issue. We,
therefore, believe summary judgment is proper on this basis.
Trial Court Opinion, 4/24/17, at 5-6.
We agree. We recognize that Shaffer was not enrolled in anger
management classes, nor was he required to enroll in anger management
classes. It is not disputed that he was given the goal of “anger management”
as a prerequisite to returning to work in 2012. He was evaluated by means
of a test that determined he did not require anger management classes.
However, that did not change the goal set for him to return to work.
Despite Shaffer’s protestations and his arguments to the contrary, his
complaint alleged defamation.2 Importantly, Shaffer did not prove any actual
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2 As noted above, Shaffer sought leave to amend to complaint to allege
defamation per se, contending he was merely attempting to “amplify” his
defamation claims that he filed within the applicable statute of limitations. His
motion was denied. Consequently, he was required to prove actual injury,
whereas a claim of defamation per se would require a showing of general
damage but not proof of “special damage,” i.e., monetary or out-of-pocket
loss. Walker, 634 A.2d at 241; see also Joseph, 129 A.3d at 429.
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injury to his reputation. Even if Ambrosini’s statements suggesting Shaffer
required, or was receiving, anger management training caused him
embarrassment, he has not demonstrated that he suffered the kind of harm
that “grievously fractured his standing in the community.” See Joseph,
supra. Consequently, the trial court properly considered his claims of
defamation and correctly determined that Ambrosini was entitled to summary
judgment. Shaffer is not entitled to relief on his first issue.
In his second issue, Shaffer argues the trial court erred by granting
summary judgment in light of the fact he did not give consent to disclose
privileged medical information. However, it is not clear from a reading of
Shaffer’s brief what “privileged medical information” he believes was
disclosed.3 The only “medical” records he mentions were in reference to a
HIPAA authorization he signed for purposes of the MMPI test administered in
2012. Appellant’s Brief at 24. There is no suggestion that any medical
information was disclosed or medical records shared.
Shaffer knew that his conduct jeopardized his employment, both in 2012
and in 2013. Due to the possibility of losing his job, he approached Cordaro
and Mahoney and asked them to contact Ambrosini and another commissioner
____________________________________________
3 Shaffer’s Third Amended Complaint does not clarify what “medical
information” is at issue. In Count II of the complaint, styled “Defamation of
Character,” Shaffer simply alleged that “Ambrosini slandered [Shaffer] by
publicating false, defamatory and non-existent medical allegations about him
regarding anger management counseling[.]” Appellant’s Third Amended
Complaint, 12/30/14, at ¶ 31.
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to put in a good word for him. He could not reasonably expect that
conversations between his friends and the commissioners would NOT include
discussion of his behavior, regardless of whether the words “anger
management” were part of the conversation. As the trial court determined,
“That [Ambrosini] would express his understanding of the status of the
investigation could reasonably be anticipated.” Trial Court Opinion, 4/24/17,
at 6. As Ambrosini observes, “[t]here is no evidence or even specific allegation
that Ambrosini stated or inferred [Shaffer] had a mental defect or other
psychiatric issue; the undisputed evidence demonstrates that Ambrosini
indicated that Shaffer was referred for ‘anger management.’” Appellee’s Brief
at 18 (citation to record omitted). In fact, the only person who has suggested
there was any mention of a “mental defect” is Shaffer himself. Neither
Ambrosini nor the individuals with whom he spoke—Cordaro and Mahoney—
attribute any mention of a “mental defect” to Ambrosini. Moreover, any
discussion with Cordaro and Mahoney involved Shaffer’s behavior, not
“privileged medical information.” Shaffer’s second issue fails for lack of merit.
We find no error of law or abuse of discretion on the part of the trial
court. Therefore, we shall not disturb its order granting summary judgment
in favor of Ambrosini.
Motion to dismiss denied. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2018
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