J-S71031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RONNIE CREAZZO,                               IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    ALYSSA A. LOPIANO-REILLY, LOPIANO-
    REILLY LAW OFFICES, AND VERONICA
    M. CREAZZO,

                             Appellees               No. 1003 EDA 2017


               Appeal from the Order Entered February 28, 2017
             in the Court of Common Pleas of Northampton County
                   Civil Division at No.: C-48-CV-2016-04524


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 11, 2018

        Appellant, Ronnie Creazzo, appeals pro se from the trial court’s order

sustaining the preliminary objections of Appellees, Alyssa A. Lopiano-Reilly,

Lopiano-Reilly Law Offices, and Veronica M. Creazzo, and dismissing his

complaint with prejudice. We affirm.

        We take the following facts and procedural background from the trial

court’s May 10, 2017 opinion and our independent review of the certified

record.

              By way of background, Appellant . . . is an attorney
        practicing in Northampton County. He is married to [Appellee]
        Creazzo.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           On June 2, 2015, Appellant and [Appellee] Creazzo
     separated after some type of marital discord. [Appellee] Creazzo
     hired [Appellee] Lopiano-Reilly to represent her in the divorce
     action.    Immediately upon filing the complaint, [Appellee]
     Lopiano-Reilly brought a petition for special relief seeking to
     preserve the marital estate by pursuing a freeze order on the
     marital assets and also seeking to require Appellant to disgorge
     marital assets that he allegedly converted from the marital estate
     into his own name.

           The petition for special relief was heard before the
     Honorable Michael J. Koury on June 16, 2016. At that time,
     argument was made by counsel and eventually Judge Koury
     granted the bulk of the relief sought by [Appellee] Creazzo
     including requiring Appellant to replenish monies taken from the
     marital estate and directing the parties to preserve all property,
     real and personal, which may be subject to equitable distribution.

           Appellant claims that both his wife and her attorney
     defamed and slandered him in both the written pleadings and in
     oral argument before Judge Koury. Specifically, the petition for
     special relief alleged that [] Appellant closed out two (2) checking
     accounts held in the marital estate totaling $82,126.42 and
     transferred that money into financial instruments control[led]
     solely by Appellant. In addition, the petition for special relief
     alleged that [] Appellant spent or transferred over $10,000.00
     from equity lines of credit encumbering the marital residence.
     Additionally, the petition alleged that given [] Appellant’s
     emotional state, [Appellee] Creazzo was concerned that [he]
     might damage or destroy marital property, including the parties’
     real estate.

            Even though [] Appellant agreed to the entry of an order
     directing him to replenish the marital funds and to a freeze order
     protecting the marital estate, [on August 23, 2016,] he [] filed a
     slander, libel,] and defamation complaint alleging that [Appellee]
     Creazzo and her attorney[, Appellee Lopiano-Reilly,] defamed him
     in the pleadings and during argument in open court. . . .

(Trial Court Opinion, 5/10/17, at 1-2) (unnecessary capitalization

omitted).




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        On September 19, 2016, Appellees filed preliminary objections to

Appellant’s complaint, on the bases that Appellant’s claims were legally

insufficient and, in any event, Appellees were protected by absolute judicial

privilege. On November 17, 2016, Appellant filed preliminary objections to

Appellees’ preliminary objections. The court heard argument on February 21,

2017. On February 28, 2017, it granted Appellees’ preliminary objections and

dismissed Appellant’s complaint as legally insufficient based on judicial

privilege. Appellant timely appealed.1

        Appellant raises three questions for this Court’s review.

        1.    Did the trial court err in granting [Appellees’] preliminary
        objections based on an absolute judicial privilege, where privilege
        is an affirmative defense which must be presented as new matter
        under Pa. R.C.P. 1030?

        2.     Did the trial court err in applying an absolute judicial
        privilege to the defamatory statements [Appellees] made at the
        hearing on the petition for special relief where such statements
        were not relevant or material to the proceedings or to the relief
        requested?

        3.   Did the trial court err in holding [Appellees] not liable of
        defamation per se by falsely stating [Appellant] was guilty of
        assault, theft, or destruction of property and thereby imputing to
        him criminal offenses, punishable by imprisonment, or conduct
        incompatible with his profession as an attorney at law?

(Appellant’s Brief, at 5-6) (unnecessary capitalization omitted).2


____________________________________________


1 Pursuant to the court’s order, Appellant filed a timely statement of errors
complained of on appeal on April 17, 2017. The court filed an opinion on May
10, 2017. See Pa.R.A.P. 1925.

2   We have re-numbered the issues for ease of disposition.

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      Appellant’s issues challenge the trial court’s order sustaining Appellee’s

preliminary objections. Our standard of review of this matter is well-settled:

            In reviewing a trial court’s grant of preliminary objections,
      the standard of review is de novo and the scope of review is
      plenary. The salient facts are derived solely from the complaint
      and pursuant to that standard of review, the court accepts all well-
      pleaded material facts in the complaint, and all inferences
      reasonably deduced therefrom must be accepted as true.

             In determining whether the trial court properly sustained
      preliminary objections, the appellate court must examine the
      averments in the complaint, together with the documents and
      exhibits attached thereto, in order to evaluate the sufficiency of
      the facts averred. The impetus of our inquiry is to determine the
      legal sufficiency of the complaint and whether the pleading would
      permit recovery if ultimately proven. This Court will reverse the
      trial court’s decision regarding preliminary objections only where
      there has been an error of law or abuse of discretion. When
      sustaining the trial court’s ruling will result in the denial of claim
      or a dismissal of suit, preliminary objections will be sustained only
      where the case is free and clear of doubt.

Jones v. Board of Directors of Valor Credit Union, 169 A.3d 632, 635 (Pa.

Super. 2017) (citations omitted).

      In Appellant’s first two issues, he argues that the trial court erred in

sustaining the preliminary objections raising absolute judicial privilege

because Appellees should have raised this defense in new matter, and the

statements were not subject to the privilege. (See Appellant’s Brief, at 18-

27). These issues lack merit.

      Pennsylvania Rule of Civil Procedure 1030 provides, in pertinent part,

that “all affirmative defenses including but not limited to the defense[] of . . .

privilege . . . shall be pleaded in a responsive pleading under the heading ‘New


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Matter’. . . .” Pa.R.C.P. 1030(a). However, although “the defense of qualified

privilege must be raised by new matter and not by preliminary objection[,]”

“absolute privileges may be raised at the preliminary objection stage.”

Wecht v. PG Pub. Co., 510 A.2d 769, 771 (Pa. Super. 1986), appeal denied,

522 A.2d 559 (Pa. 1987) (citations omitted; emphases added).             A judicial

privilege is an absolute privilege:

              Pursuant to the judicial privilege, a person is entitled to
      absolute immunity for communications which are issued in the
      regular course of judicial proceedings and which are pertinent and
      material to the redress or relief sought. This privilege is based on
      the public policy which permits all suiters, however bold and
      wicked, however virtuous and timid, to secure access to the courts
      of justice to present whatever claims, true or false, real or
      fictitious, they seek to adjudicate. . . . [T]o assure that such claims
      are justly resolved, it is essential that pertinent issues be aired in
      a manner that is unfettered by the threat of libel or slander suits
      being filed. Notably, this privilege is extended not only to parties
      so that they are not deterred from using the courts, but also to .
      . . counsel to enable him to best represent his client’s interests.

Bochetto v. Gibson, 860 A.2d 67, 71 (Pa. 2004) (citations, quotation marks,

footnote and emphases omitted).

      Here, after our independent review, we are satisfied that it is apparent

from the face of Appellant’s complaint that the trial court properly found

absolute judicial privilege applied to bar his suit.      Appellant claimed that

Appellee Creazzo’s petition for special relief was libelous because it

maintained, in pertinent part, that he “engaged in a physical confrontation

with [Appellee Creazzo’s] extended family members[.”] (Complaint, 8/23/15,

at 3 ¶ 11; see id. at 5 ¶ 21) (pagination provided).          The complaint also


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maintained that, during the hearing on the petition, Appellee Creazzo “blared

out in a boisterous and vociferous voice[]” that Appellant “stole over

$93,000.00 from a joint bank account” and that he “would engage in

destruction of the marital residence or the ‘real estate[.’]” (Id. at 8 ¶ 32, 10-

11 ¶ 42, 12 ¶ 47) (pagination provided).         Each of these allegations was

pertinent to the issue before the court:         whether Appellant’s behavior

warranted the imposition of a freeze order in an effort to preserve the marital

estate, pending the resolution of the divorce matter.

       Therefore, Appellees properly raised, and the trial court properly found,

based on the allegations of the complaint, that absolute judicial privilege

rendered Appellant unable to obtain relief on his defamation action as a matter

of law. See Bochetto, supra at 71. Hence, the court properly sustained

Appellees’ preliminary objections and dismissed Appellant’s complaint with

prejudice.3 See Jones, supra at 635. Appellant’s first and second issues

lack merit.

       Order affirmed.




____________________________________________


3 Because of our disposition, we need not reach Appellant’s third issue, i.e.,
whether the statements complained of were capable of defamatory meaning.
However, after our independent review, we note our agreement with the trial
court’s observation that “the alleged offensive statements are the fodder
typically found in contentious divorce matters. We are hard pressed to
categorize the offensive statements as defamatory.” (Trial Ct. Order, at 1);
(see also Trial Ct. Op., at 4 (“[N]one of the statements alleged in the
[c]omplaint constitute defamation per se[.]”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:1/11/18




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