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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


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

____________________________________________


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


____________________________________________


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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