J-S52003-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES T. PICARELLA, JR.,                :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                 Appellant                :
                                          :
           v.                             :
                                          :
MICHAEL McCARTHY                          :            No. 104 MDA 2017

             Appeal from the Order entered December 15, 2016
         in the Court of Common Pleas of Northumberland County,
                      Civil Division, No(s): CV-16-2173

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 21, 2017

     Charles T. Picarella, Jr. (“Picarella”), pro se, appeals from the Order

dismissing as frivolous his defamation action against Michael McCarthy

(“McCarthy”). We affirm.

     On June 19, 2016, the following letter to the editor, authored by

McCarthy, was published in the News-Item, a newspaper circulated in

Shamokin, Pennsylvania:

           Once again, convicted felon Charles Picarella, who’s
     serving a lengthy sentence in state prison for his string of guilty
     pleas for illegal drug activities, is on his soap box. This time he’s
     blathering about the use of confidential informants by law
     enforcement. His latest rant is as accurate as a Flat Earth
     Society newsletter.

           According to inmate Picarella, using confidential informants
     perpetuates the demand for drugs and is the root cause of drug
     suppliers. No, inmate Picarella, it’s not informants, it’s the
     loathsome, contemptible, evil sleaze bags selling this poison who
     are solely to blame. So why don’t you take a hard look in the
     mirror?
J-S52003-17


            Inmate Picarella whines and complains incessantly, but
     never once apologized to the victims of his criminal behavior and
     the families he destroyed. Nor has he offered viable solutions
     for anything. To him there’s always somebody or something
     else to blame. His continual avoidance of responsibility for his
     destructive anti-social behavior is obvious, as is his lack of
     remorse. His failure to conform to a law-abiding society put him
     where he is today and will remain for a long time, thereby
     descending farther and farther into the black hole of irrelevance.
     So here’s a challenge: Cut out your half-baked jailhouse know-
     it-all rhetoric and misconception of self-righteousness. Quit
     whining and start showing some character. Take responsibility
     for the staggering number of crimes documented in your lengthy
     criminal history, and admit that you’re responsible for
     contributing to the misery and hopelessness of some of the
     shattered lives that are addicted to heroin and drifting aimlessly
     in the economically depressed Mount Carmel and Shamokin area
     you wrote about.

            And since you seem to enjoy writing letters to newspapers,
     look inside yourself and see if you have the backbone and
     fortitude to write an open letter to The News-Item and make a
     public apology to the victims whose lives you helped destroy and
     their families. Include the honest law-abiding citizens whose tax
     dollars are being spent to keep criminals like you behind bars.

     Man-up and do something productive for once.

Trial Court Opinion, 3/31/17, at 2-3 (unnumbered).

     On December 14, 2016, Picarella filed a pro se defamation action

against McCarthy.    Picarella’s Complaint averred that the letter falsely

claimed that he had not taken responsibility or expressed remorse for his

criminal conduct. Complaint, ¶¶ 10-13. The Complaint further averred that

the publication of the letters darkened Picarella’s reputation, constituted

libel, and caused damage and injury to his reputation.      Id., ¶¶ 14, 17.




                                -2-
J-S52003-17


Picarella sought $50,000 in compensatory damages, and additionally sought

punitive damages.

      Picarella filed a Petition for leave to proceed in forma pauperis.    On

December 15, 2016, the trial court entered an Order denying Picarella’s

Motion for leave to proceed in forma pauperis, and dismissing the Complaint

as frivolous. Trial Court Order, 12/15/16, at 1. Thereafter, Picarella, pro se,

filed the instant timely appeal, followed by a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

      Picarella presents the following claim for our review: “Did the [trial]

[c]ourt err in dismissing this matter as frivolous [p]ursuant to Pa.R.C.[P.]

240(j)[?]” Brief of Appellant at 4.

      Pennsylvania Rule of Civil Procedure 240(j) provides, in relevant part,

as follows:

      (1) If, simultaneous with the commencement of an action or
      proceeding or the taking of an appeal, a party has filed a petition
      for leave to proceed in forma pauperis, the court prior to acting
      upon the petition may dismiss the action, proceeding or appeal if
      the allegation of poverty is untrue or if it is satisfied that the
      action, proceeding or appeal is frivolous.

         Note: A frivolous action or proceeding has been defined
         as one that “lacks an arguable basis either in law or in
         fact.” Neitzke v. Williams, 490 U.S. 319, 109 S. Ct.
         1827, 104 L. Ed. 2d 338 (1989).

Pa.R.C.P. 240(j)(1).1


1
 As we review Picarella’s Complaint, we are mindful that a pro se complaint
should not be dismissed simply because it is not artfully drafted. Bell v.
Mayview State Hosp., 853 A.2d 1058, 1060 (Pa. Super. 2004).


                                  -3-
J-S52003-17


     In its Opinion, the trial court addressed Picarella’s claim and concluded

that it lacks merit. See Trial Court Opinion, 3/31/17, at 2-4 (unnumbered).

We agree with the sound reasoning of the trial court, as set forth in its

Opinion, and affirm on this basis. See id.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




                                 -4-
                                                                              Circulated 08/03/2017 03:14 PM




                      IN TH COURT OF COMMON PLEAS OF
                  NORTHU   BERLAND COUNTY, PENNSYLVANIA
                             CIVIL ACTION - LAW


CHARLES PICARELLA, J
                PLA
                                                                                    .. ~. ,· .
                                                    NO. CV-2016-21 73
                vs.                                                                 . --~·'   '

                                                                                    -<            w
                                                                                                  en
MICHAEL McCARTHY,
               DEF NDANT

                      STATEM NT IN LIEU OF FORMAL OPINION

SAYLOR, J.

       Plaintiff, Charles Pie rella, Jr., initiated this action by filing a Complaint on

December 14, 2016. On De ember 15, 2016, this court entered an Order pursuant to

Pa.R.C.P. No. 2400)(1) dis issing Plaintiff's Complaint as frivolous and lacking an

arguable basis in law. Plain 'ff filed a timely Notice of Appeal and on .January I 0. 2017.

this court directed Plaintiff t file a concise statement of the matters complained of on

appeal.

          Plaintiff in his 1925( ) statement contends this court erred by finding the

Plaintiff's Complaint failed o state a valid claim as it lacked an arguable basis either in

 law or fact and thus, frivolo s.

          Plaintiff's Complain alleges one count of defamation pursuant to 42 Pa.C.S. §

 8343. Specifically, Plaintif alleges that Defendant's letter to the editor of a local

 newspaper has "darkened th reputation of Plaintiff'. He further alleges he has suffered

 damage and injury in his na e and reputation, "and has been brought into disgrace and

 disrepute among his neighb rs and diverse other persons ... ". Pl 's. Comp!. Ex. C.
       In an action for defa   ation it is the trial court's functio!n to determine whether a

challenged publication is cap ble of a defamatory meaning. Green v. Mizner, 692 A.2d
                                                                  i
169, 172 (Pa. Super. 1997).     publication is defamatory if it tends to blacken a persons
                                                                  !

reputation in the community. Id. The court must view the statement "in context" and

consider "the effect the state ent is fairly calculated to produce, the impression it would

naturally engender, in the mi ds of the average persons among whom it is intended to

circulate." Remick v. Manfr dy, 238 F.3d 248, 260 (3d. Cir. 2QO I) (quoting Bakerv.
                                                                  !


Lafayette College, 532 A.2d 99, 402 (Pa. 1987). Furthermore, an opinion cannot be

defamatory unless it "may re sonably be understood to imply ~he existence of

undisclosed defamatory fact justifying the opinion". Hill v. Cosby, 665 Fed.Appx. 169.

174 (3d. Cir. 2016) (quoting aker, supra).

        The letter, as attache to Plaintiffs Complaint, states the following:

           To the editor: On e again, convicted felon CharlesPicarella,
           who's serving a le gthy sentence in state prison for! his string of
           guilty pleas for ill gal drug activities, is on his soap box. This
           time he's blatheri g about the use of confidential inforrnants by
           law enforcement. His latest rant is as accurate as a !Flat Earth
           Society newslette .

           According to inm te Picarella, using confidential informants
           perpetuates the de and for drugs and is the root cause of drug
           suppliers. No, i ate Picarella, it's not informants] it's the
           loathsome, conte ptible, evil sleaze bags selling this poison
           who are solely to lame. So why don't you take a hard look in
           the mirror?                                         ·

           Inmate Picarella hines and complains, incessant!), but never
           once apologized t the victims of his criminal behavior and the
           families he destro ed. Nor has he offered viable solutions for
           anything. To him there's always somebody or something else to
           blame. His conti ual avoidance of responsibility fer his
        destructive anti-so9ial behavior is obvious, as is his lack of
        remorse. His failu]e to conform to a law-abiding society put
        him where he is to1ay and will remain for a long time, thereby
         descending farther and farther into the black hole of irrelevance.

         So here's a challen~e: Cut out your half-baked jailhouse know-
         it-all rhetoric and np.isconceptionof self-righteousness. Quit
         whining and start showing some character. Take responsibility
         for the staggering riumber of crimes documented in your lengthy
         criminal history, arid admit that you're responsible for
         contributing to the !misery and hopelessness of some of the
         shattered lives thatiare addicted to heroin and drifting aimlessly
          in the economically depresses Mount Carmel and Shamokin
          area you wrote abo~t.                                      .

               ·
         An d smce           j to enJOY
                    you see:tp       ·    ..
                                        wntmg  1 etters to newspapers, 1 ook
         inside yourself an9 see if you have the backbone and fortitude to
         write an open letterI to The News-Time and make a public
         apology to the victims whose lives you helped destroy and their
         families. Include the honest law-abiding citizens whose tax
         dollars are being spent to keep criminals like you behind bars.

          Man-up and do so~ething productive for once.

          Michael J. McCajhy
                                I
       In reviewing the lette~ authored by the Defendant, this court concludes the letter is

not defamatory. Defendant's letter to the editor is merely an expression of his opinion of
                                    I
Plaintiff. Importantly, Plainiiff disclosed the factual basis for his opinion which is
                                    I
Plaintiff's criminal record. ln Pennsylvania, "pure opinions" which are defined as

statements that provide fact1 on which the opinion-holder basis his opinion, are not
                                    !
actionable. Hill, supra. Plaintiff is incarcerated in a state correctional institution for

multiple felony drug offenses, facts which are of public record. 1 It is clear to this court

that the communication is incapable of bearing a defamatory meaning given the fact that

                                        I
1A review of the Northumberland County Clerk of Court public records illustrates Plaintiffs lengthy
criminal record involving numerobls felony drug convictions: CR-2002-213, CR-2002-1 152, CR-2002-
1286, CR-2005-1050, CR-2006-311, CR-2007-942, CR-2008-565, CR-2012-1258, and CR-2013-4 72.



                                        I
Plaintiff is a convicted felon   nd Defendant's statements relate solely to Plaintiffs

known, unlawful conduct. R mick at 260 (noting that "a publication is defamatory if it

ascribes to another 'conduct, haracter or a condition that would adversely affect his

fitness for the proper conduct of his lawful business, trade or profession") (quoting

Restatement (Second) of To s § 573 (1977)). Accordingly, the appeal should be

quashed.




                                                        BY THE COURT:



   3/3;/;7
    ,                                                   ____£_
Date                                                    Charles H. Saylor,



 cc:    Charles Picarella, Jr., #JD0020, SCI-Benner Twp, 301 Institution Dr., Bellefonte.
          PA 16823
        Michael McCarthy, 43 Stoner Rd., Mechanicsburg, PA 17055
        Law Clerk
        Court




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