J-A05036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 LAW OFFICE OF BRUCE J. CHASAN,           :   IN THE SUPERIOR COURT OF
 LLC AND BRUCE CHASAN, ESQUIRE            :        PENNSYLVANIA
                                          :
                     Appellant            :
                                          :
                                          :
                v.                        :
                                          :
                                          :   No. 2928 EDA 2016
 FREUNSLICH & LITTMAN, LLC AND            :
 GREGORY LITTMAN, ESQUIRE                 :

              Appeal from the Order Entered August 22, 2016
    In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): 00623 Feb. Term, 2015


BEFORE:       NICHOLS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED MARCH 29, 2018

      Appellants Bruce J. Chasan, Esq. et al., (hereinafter Chasan) appeal

from the Order entered in the Court of Common Pleas of Philadelphia County

on August 22, 2016, granting summary judgment in favor of Appellees

Gregory Littman, Esq. et al. (hereinafter Littman) and dismissing Chasan’s

defamation action. We affirm.

      The trial court set forth the pertinent facts and procedural history herein

as follows:

            This is a defamation suit arising from the conduct of
      attorneys in the litigation of a separate matter, Govberg v.
      Feierstein, Philadelphia CCP no. 130704676. The allegedly
      defamatory statements were made in three letters written by
      Attorney Littman and sent to multiple third parties while the
      Govberg case was pending. Attorney Littman was plaintiffs'
      counsel, and Attorney Chasan represented defendant Edward
      Feierstein. It is undisputed that Attorney Littman made the

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05036-18


     statements, intended their apparent meaning, and meant them to
     apply to Attorney Chasan. It is further undisputed that the
     recipients of the letters understood the intended meanings of the
     statements.
           In the Govberg matter, Attorney Littman conducted a pre -
     Complaint deposition of would-be defendant Mr. Feierstein. After
     the deposition, Attorney Chasan repeatedly urged Attorney
     Littman and his clients not to pursue the matter, saying it lacked
     merit. Attorney Littman's clients refused and filed a Complaint
     against Mr. Feierstein. Mr. Feierstein's Answer laid a counterclaim
     against the plaintiffs and against Attorney Littman personally,
     suing for attorney's fees under 42 Pa. C.S.A. § 2503(9) for
     vexatious filing of a baseless suit.

          The February 5, 2014 letter (Dragonetti Notice) to
     Attorney Chasan

           Shortly after the filing of the Govberg Answer, Attorney
     Littman sent a Dragonetti Notice to Attorney Chasan. The letter
     contained several allegations of misconduct and included the
     following statements:

         1. the counterclaim brought by Attorney Chasan and his
            client was baseless, unlawful, and constituted
            wrongful use of civil proceedings;

         2. Attorney Chasan and Mr. Feierstein were engaged in
            witness intimidation by using their counterclaim
            against Attorney Littman to discourage Attorney
            Littman's brother, Matthew Littman, from testifying
            against Mr. Feierstein in an upcoming, unrelated
            criminal trial for which Matthew Littman had been
            subpoenaed;

         3. Attorney Littman had notified the Attorney General's
            Office of Attorney Chasan and Mr. Feierstein's
            "egregious and criminal offense" of witness
            intimidation;

         4. Mr. Feierstein had claimed mental incompetence to
            stand trial in his criminal matter and had checked
            himself into a mental health facility, although he
            simultaneously continued to file and sign legal papers
            for the Govberg matter; Attorney Littman therefore

                                    -2-
J-A05036-18


              suspected that Mr. Feierstein was defrauding the
              criminal court and that Attorney Chasan was be
              knowingly participating in this conduct; and

         5. that Attorney Chasan's actions violated the
            Pennsylvania Rules of Professional Conduct, and the
            counterclaim was brought "with gross negligence,
            without probable cause and with the intention to
            annoy, forcing [Attorney Littman and his clients] to
            spend more time and money with [the Govberg]
            litigation, while attempting to intimidate a witness
            that will testify against Mr. Feierstein in his criminal
            trial," and that this conduct warranted a disciplinary
            report.

     The letter instructed Attorney Chasan to withdraw the Govberg
     counterclaim within three days or be subject to an ethics
     complaint. The letter was carbon-copied to Deputy Attorneys
     General Kenneth McDaniels and Eric Schoenberg, the prosecutors
     in Mr. Feierstein's criminal trial; Bruce Castor, Esq., Mr.
     Feierstein's criminal defense attorney; James Schwartzman, Esq.,
     an ethics attorney with whom Attorney Littman had consulted
     about the instant matter; and Attorney Littman's clients, the
     Govberg plaintiffs. Attorney Chasan and/or Mr. Feierstein declined
     to withdraw the Complaint.

          The February 24, 2014 letter to Attorney Chasan

           Three weeks later, Attorney Littman sent a second allegedly
     defamatory letter addressed to Attorney Chasan and copied to the
     same parties from the previous letter. The letter reiterated that
     Attorney Chasan was acting in violation of Pennsylvania Rule of
     Professional Conduct 3.3, Candor Toward the Tribunal.
     Furthermore, he alleged, Attorney Chasan's conduct was being
     used for illegitimate purposes to harass and intimidate others, it
     violated statutory law, and it disrespected the legal system and
     attorneys. He furthermore stated, "[I]f you continue to represent
     Mr. Feierstein with the knowledge that he is defrauding the Court,
     you will leave me no choice [but to lodge an ethics complaint]."

                 The March 28, 2014 letter to the Court

           One month later, Attorney Littman wrote a third letter
     allegedly defaming Attorney Chasan, this time addressed to the

                                    -3-
J-A05036-18


      Honorable Ellen Ceisler, the presiding judge in the Govberg case,
      and copied only to Attorney Chasan. The letter stated that
      Attorney Chasan and Mr. Feierstein were acting "in bad faith" in
      the Govberg matter, that Attorney Littman's attempts to resolve
      the issue with Attorney Chasan had been met with silence, that
      Mr. Feierstein had sued Attorney Littman personally for filing the
      Govberg suit, that Mr. Feierstein was alleging mental
      incompetence to stand trial in the contemporaneous Montgomery
      County criminal proceeding, and that Attorney Chasan was suing
      Attorney Littman for defamation due to Attorney Littman's copying
      of outside parties on the prior two letters. He furthermore
      requested a conference with the court and Attorney Chasan "so
      that this matter can be litigated without jeopardizing the integrity
      of the Court." Attorney Littman also attached copies of the prior
      two letters to the Judge Ceisler letter.
      ___

      1Appellants  and Appellees are suing in their personal capacity as
      individual attorneys and as their respective related professional
      entities/law practices. We refer to them herein as "Attorney
      Chasan" and "Attorney Littman," respectively, for clarity.
      2 Appellants raised eight allegations of error in their 1925(b)

      Statement of Matters Complained on Appeal. However, for the
      sake of relative brevity and due to the duplicative nature of certain
      allegations, we limit this Opinion to the requirements of Pa. R.A.P.
      1925(a).

Trial Court Opinion, filed 6/30/17, at 1-4.

      In its Order entered on August 22, 2016, the trial court granted

Littman’s Motion for Summary Judgment and dismissed Chasan’s claims with

prejudice. On September 7, 2016, Chasan filed a timely notice of appeal with

this Court. On September 9, 2016, the trial court ordered Chasan to file a

concise statement of the errors complained of on appeal within twenty-one

(21) days. Chasan filed the same on September 28, 2016, wherein he set

forth the following eight issues:




                                      -4-
J-A05036-18


     1. The court erred in granting summary judgment to [Littman] on
     [Chasan’s] defamation complaint wherein the record included
     evidence to support each element on which [Chasan] bear[s] the
     burden of proof under 42 Pa.C.S.A. § 8343(a), thus showing a
     disputed issue of material fact as to each element.

     2. The court erred in granting summary judgment to [Littman] in
     the mistaken belief that it was necessary for [Chasan] to introduce
     expert testimony in support of the elements on which [Chasan]
     bear[s] the burden of proof under 42 Pa.C.S.A. § 8343(a).

     3. The court erred in granting summary judgment to [Littman]
     when there were disputed issues of material fact as to truth of the
     alleged defamatory communications.

     4. The court erred in granting summary judgment to [Littman]
     when there were disputed issues of material fact as to whether
     the letters authored by Attorney Littman were privileged.

     5. The court erred in granting summary judgment to [Littman]
     when there were disputed issues of material fact as to whether
     the subject matter of the defamatory comments was a matter of
     public concern.

     6. The court erred in granting summary judgment to [Littman],
     relying on [Littman’s] beliefs and [Littman’s] advisor's belief and
     opinions, since the credibility of the movant's oral testimony is for
     the jury to determine.

     7. The court erred in granting summary judgment to [Littman]
     when relying on [Littman’s] expert report, as the credibility of the
     expert is for the jury.

     8. The court erred in granting summary judgment to [Littman] in
     relying on two October 2014 emails by Feierstein, which [Chasan]
     had no role in composing or sending, and which were authored by
     Feierstein more than six months after [Littman] sent [the]
     defamatory communications, and were therefore irrelevant.

See [Chasan’s] Rule 1925(b) Statement of Errors Complained of, filed

9/28/16, at ¶¶ 1-8.




                                     -5-
J-A05036-18



      In his brief, Chasan presents the following two questions for this Court’s

review:


      1.    Did the court err as a matter of law in holding that [Chasan]
      had insufficient evidence to show [Littman] published the
      defamatory statements with fault, i.e., with negligence and/or
      reckless disregard of their falsity?

      2.    Did the court err as a matter of law in holding that [Chasan]
      had insufficient evidence of damages to support a claim for
      defamation based on [Littman’s] publication of defamatory
      statements?

[Chasan’s] Brief at 5.

      Before reaching Appellant’s claims raised on appeal, we must first

determine whether they are properly before us.           Pennsylvania Rule of

Appellate Procedure 1925 provides that a Rule 1925(b) statement “shall

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.

1925(b)(4)(ii). “Issues not included in the Statement and/or not raised in

accordance with the provisions of this [Rule] are waived.” Pa.R.A.P.

1925(b)(4)(vii). Regarding Rule 1925(b), our Supreme Court has stated:

            Our jurisprudence is clear and well-settled, and firmly
      establishes that: Rule 1925(b) sets out a simple bright-line rule,
      which obligates an appellant to file and serve a Rule 1925(b)
      statement, when so ordered; any issues not raised in a Rule
      1925(b) statement will be deemed waived; the courts lack the
      authority to countenance deviations from the Rule's terms; the
      Rule's provisions are not subject to ad hoc exceptions or selective
      enforcement; appellants and their counsel are responsible for
      complying with the Rule's requirements; Rule 1925 violations may
      be raised by the appellate court sua sponte, and the Rule applies

                                      -6-
J-A05036-18


      notwithstanding an appellee's request not to enforce it; and, if
      Rule 1925 is not clear as to what is required of an appellant, on-
      the-record actions taken by the appellant aimed at compliance
      may satisfy the Rule.13 We yet again repeat the principle first
      stated in Lord that must be applied here: “[I]n order to preserve
      their claims for appellate review, [a]ppellants must comply
      whenever the trial court orders them to file a Statement of Matters
      Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues
      not raised in a Pa.R.A.P. 1925(b) statement will be deemed
      waived.” [Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 2011)].

Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011) (footnote

omitted).

      This Court also has considered the question of what constitutes a

sufficient 1925(b) statement on many occasions, and it is well-established

that “Appellant's concise statement must properly specify the error to be

addressed on appeal.” Commonwealth v. Hansley, 2011 PA Super 129, 24

A.3d 410, 415 (Pa. Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275

(2011) (citation omitted). “[T]he Rule 1925(b) statement must be specific

enough for the trial court to identify and address the issue an appellant wishes

to raise on appeal.” Id. (brackets, internal quotation marks, and citation

omitted). In re A.B., 63 A.3d 345, 350 (Pa.Super. 2013). Moreover, “[a]

theory of error different from that presented to the trial jurist is waived on

appeal, even if both theories support the same basic allegation of error which

gives rise to the claim for relief.” Commonwealth v. Ryan, 909 A.2d 839,

845 (Pa.Super. 2006) (citation omitted), appeal denied, 597 Pa. 714, 951 A.2d

1163 (2008).




                                     -7-
J-A05036-18


        In his appellate brief, Chasan contends the trial court erred in finding

the evidence was insufficient to establish that the defamatory statements had

been published with fault and that there had been insufficient evidence of

damages to support Littman’s defamation claims.              However, while he

presented a challenge to the sufficiency of the evidence in paragraph one of

his concise statement, the claim is a general one pertaining the evidence to

support “each element on which [Littman] bear[s] the burden of proof under

42 Pa.C.S.A. § 8343(a).” See concise statement, supra, at ¶1. That statute

lists seven (7) issues which a plaintiff has the burden of proving in a

defamation action.     It is well-established that “[i]n order to preserve a

challenge to the sufficiency of the evidence on appeal, an appellant's Rule

1925(b) statement must state with specificity the element or elements upon

which   the   appellant    alleges   that   the   evidence    was   insufficient.”

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013). While the

trial court herein ultimately granted Littman’s motion for summary judgment

upon finding that Chasan had failed to provide sufficient evidence of fault or

damages to prove a defamation or defamation per se claim, see Trial Court

Opinion, filed 6/30/17, at 4, the fact that a trial court addressed an appellant’s

sufficiency claim in its Rule 1925(a) opinion is of no moment to a waiver

analysis. Commonwelth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009),

appeal denied, 3 A.3d 670 (Pa. 2010).




                                      -8-
J-A05036-18


       Here, Chasan failed to identify specifically in his concise statement how

the evidence had been insufficient to satisfy any of the elements necessary to

establish a defamation claim.          Moreover, Appellant’s claims raised in his

appellate brief are not subsumed in the remaining seven issues presented in

his concise statement. Because only claims properly presented before the trial

court are preserved for appeal, and Chasan’s sufficiency of the evidence

challenge in his Rule 1925(b) statement not only was vague but also did not

mention publication with negligence and/or reckless disregard or refer to

damages, his contentions in his appellate brief concerning those statements

are waived. See Hansley and Ryan, supra.

     Order affirmed.1
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/18




____________________________________________


1We may affirm the trial court's order on any valid basis. Plasticert, Inc. v.
Westfield Ins. Co., 923 A.2d 489, 492 (Pa.Super. 2007).



                                           -9-
