J-A09024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

GEORGE B. KEAHEY,                            : IN THE SUPERIOR COURT OF
                                             :      PENNSYLVANIA
                   Appellant                 :
                                             :
            v.                               :
                                             :
WENDY KEAHEY,                                :
                                             :
                   Appellee                  : No. 2169 EDA 2014

                 Appeal from the Order entered June 18, 2014,
                  Court of Common Pleas, Delaware County,
                      Civil Division at No. 2013-003741

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED APRIL 21, 2015

      Appellant, George B. Keahey (“GK”), appeals from the order entered

June 18, 2014 granting summary judgment in favor of Appellee, Wendy

Keahey (“WK”).     GK contends that the trial court erred in dismissing his

claims for defamation and libel based upon its conclusion that WK’s

statements were protected by the judicial privilege.       For the reasons that

follow, we affirm the trial court’s order.

      GK and WK are divorcing spouses. GK initiated this action on or about

April 18, 2013, alleging in a civil complaint that he had suffered damages as

a result of an affidavit (hereinafter, WK’s Affidavit”) provided by WK in a

federal civil rights lawsuit brought by GK against Bethel Township and

certain of its police officers (hereinafter, the “Federal Suit”).   In the present

case, GK’s complaint against WK asserted three caused of action against
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WK:   (1) statutory defamation (42 Pa. C.S.A. § §8343); (2) common law

libel/defamation; and (3) wrongful use of judicial proceedings (42 Pa. C.S.A.

§ 8351).

      By way of background, we begin with the Federal Suit. In its written

opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate

Procedure, the trial court aptly summarized the factual and procedural

background of the Federal Suit as follows:

           On the evening of November 25, 2009, the Bethel
           Police responded to a call from [WK], concerning a
           domestic dispute at the Keahey residence, 1584
           Conchester Road, Bethel Township, Delaware
           County, Pennsylvania. [Bethel] Officers James
           Register and Brian Buck responded to the call. The
           officers arrived in separate cars, and they observed
           that there were two vehicles parked outside the
           residence, a Ford F150 truck and 1987 Mustang.
           Officer Buck described the couple as being "verbally
           combative upon [their] arrival." According to Officer
           Register, [WK] was "heated and agitated” upon the
           officers arrival, the couple was arguing, and [WK]
           was "adamant" that she wanted her husband out of
           the house. The officers then separated the couple to
           question them separately. [WK] informed Officer
           Buck that the mortgage to the property was in her
           name and the F150 truck and 1987 Mustang were
           titled solely in her name. When asked by Officer
           Buck if she had somewhere else she could go, [WK]
           replied that she did not. Officer Register asked [GK]
           if he had somewhere else he could go, and [GK]
           stated he had a friend's house to which he could go
           and voluntarily agreed to do so. [WK] refused to let
           her husband take the F150 truck and suggested that
           he contact Irene Reardon, a woman [GK] was
           allegedly seeing, and ask her for a ride.




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          [GK] describes a different scene. He states that his
          wife was "very inebriated” and "really looped” when
          the officers arrived. He also states that, while his
          wife was angry that he would not give her the keys
          to the Ford F150 as a result of her intoxication, he
          would not classify the situation as an "argument."
          He also claims that he had been home from work for
          only ten minutes and was just sitting down to eat
          when the police arrived. [GK] says that Officer Buck
          said to him, "One of you has to leave. You both
          can't stay in the house tonight." He was also told
          that he would be unable to take the F150 truck or
          the Mustang to leave because they were his wife's
          vehicles. Finally, Officer Register told [GK] that he
          was going to take him in his police car, and asked if
          [GK] wanted to get his coat.

          [GK] was eventually taken by Officer Register in his
          police car and dropped off at a nearby McDonald's
          restaurant. At the time, [GK] states that he felt he
          was under arrest "in a legal sense," and felt this way
          because he was going to get in the front seat of the
          car but was told he need to sit in the back seat.
          [GK] was picked up and given a ride by Ms. Reardon
          to another friend's house where he spent the night.
          [GK] returned to the property the next morning.
          When his wife discovered he had returned, she
          "started screaming” and [GK] took the Ford F150
          truck and left. [WK] then informed [Bethel] Officer
          Bradshaw and Detective Mervine of the previous
          night's events, told them that her husband did not
          have her permission to use the truck, and that she
          did not want to file charges against her husband.
          [GK] spoke with Detective Mervine advising that he
          did not have to return the truck and was not
          planning on doing so. Later that day, a "stop and
          hold” order was placed on the truck. The "stop and
          hold” order was removed the following day after
          Officer Bradshaw consulted with the Delaware
          County District Attorney's Office.

          On January 23, 2010, upon discovering the truck
          parked outside the home of Irene Reardon, [WK]



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           took the truck and parked it at a new location. Upon
           discovering that the vehicle was missing, [GK] called
           the Bethel Police and demanded that the truck be
           returned to him as he had personal belongings and
           items needed for his law practice. He also advised
           the Bethel police that he had a court order allowing
           him to use the truck. On the same day, [WK]
           contacted the Bethel police and informed them that
           Irene Reardon had called and threatened her. She
           advised that she would return her husband's
           personal belongings and items needed for his law
           practice, but she would not return the truck. Upon
           being informed that his belongings would be
           returned by his wife, [GK] advised that he wanted
           his wife charged with theft. [GK] was advised that if
           he wanted charges filed, he needed to contact the
           police where the alleged theft took place, Aldan
           Borough [Delaware County, Pennsylvania].            On
           February 17, 2010, the Delaware County Court of
           Common Pleas entered an order permitting [GK] to
           use what was identified as [WK’s] 1987 Mustang for
           a period of thirty days, "at which time he shall return
           the vehicle to [WK] without further proceeding."

           Following the above-described course of events,
           [GK] filed an action in the United States District
           Court for the Eastern District of Pennsylvania
           bringing six counts:      (1) seizure and detention
           without probable cause in violation of 42 U.S.C. §
           1983; (2) seizure and deprivation of property in
           violation of 42 U.S.C. § 1983; (3) conspiracy to
           deprive [GK] of his rights under § 1983; (4) false
           imprisonment; (5) harassment; and (6) malicious
           abuse of process. Counts (5) harassment and (6)
           malicious abuse of process claims were dismissed
           and [GK] later agreed to drop count (3) the
           conspiracy claim. The remaining claims were
           ultimately dismissed following [the Honorable United
           States    District   Court]    Judge    Buckwalter's
           consideration of the Bethel Defendants Motion for
           Summary Judgment.

Trial Court Opinion, 11/10/2014, at 8-12 (citations and footnotes omitted).



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      WK signed her Affidavit on or about October 18, 2012, and on October

23, 2012, the defendants in the Federal Suit attached it to a motion for

leave to amend their motion for summary judgement. WK’s Affidavit stated

in full as follows:

      The undersigned, Wendy Keahey, hereby deposes and says as follows:

      1.     I married George Keahey on September 6, 2002.

      2.     Because of George's credit background, the mortgage on 1584
             Conchester Road was in my name only.

      3.     At the time of the marriage I owned a 1987 Mustang my father
             bought in 1988 and gave to me when I was in college.

      4.     I also owned a Subaru which I traded in for a Ford F-150 truck,
             through a discount I had as an employee of a Ford dealership.
             The truck and loan were in my name only.

      5.     Several weeks before the incident on November 25, 2009, I
             called police after George threw me across the kitchen when I
             was trying to leave to go to a friend's home.

      6.     George was yelling, "Go ahead, run me over!" and other things
             as he stood in the back of the truck preventing me from leaving.
             I locked myself in the truck and called police.

      7.     When officers arrived, one officer took George to one side of the
             driveway and another officer got me and my dog out of the
             truck.

      8.     In a threatening tone, George said I better get a good attorney.

      9.     The officer warned George that he should be careful because I
             wasn't pressing charges and allowed me to leave in the truck
             since it was in my name.

      10.    On the night before Thanksgiving, 2009, we had another
             argument. I was not drunk or under the influence of drugs.

      11.    George was secretly taking boxes from the home and placing
             them in the back of the truck which was locked and he had the



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           only key. He refused to give me the key so I could see what he
           was trying to take out of the house.

     12.   We were also arguing because I believed George was seeing
           another woman, Irene Reardon, and I confronted him about this.

     13.   After calling the police, I waited outside on the walkway for
           police to arrive and I believe George was in the sunroom.

     14.   When officers arrived, one asked me where George was and I
           believe I walked him to the sunroom and opened the door.

     15.   George immediately started giving the officer a hard time and
           was argumentative and uncooperative.

     16.   An officer asked me if I had somewhere I could go and I said I
           did not and I really didn't see why I had to leave.

     17.   I told the officer the mortgage was in my name alone, but the
           deed was in both of our names.

     18.   The officer with George then asked me to come inside.

     19.   He told me that George was willing to leave and wanted to know
           if George would take the truck.

     20.   I told the officer no, George would not take the truck and that it
           is in my name alone and suggested George call his girlfriend,
           Irene, for a ride.

     21.   By this point, George was no longer argumentative.

     22.   I went back outside and heard one of the officers offer to give
           George a ride and George walked away with them.

     23.   I did not see any of the officers forcibly remove George from the
           home.

     24.   During this time, George was wearing the same clothes he was
           wearing when he left for work in the morning.

     25.   Early the next morning, I heard the truck being started and I
           saw it being driven off.

     26.   After seeing the truck being driven off I called police.



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J-A09024-15


     27.   Two officers arrived and I told them what had happened the
           night before and that George was told he wasn't to take the
           truck.

     28.   The next thing I heard about the truck was from Officer
           Bradshaw who advised me that the D.A. had told them they
           couldn't charge George with unauthorized use and there was
           nothing more they could do.

     29.   On January 23, 2010, after George refused to return my truck, I
           took my truck from where it was parked on the street in front of
           the home of Irene Reardon.

     30.   When I got home, I had a message I felt was threatening from
           Irene Reardon (telling me I was "done")

     31.   I was afraid of what they might do and called police.

     32.   An officer came to the house and listened to the message and
           said he could see how the message could be seen as
           threatening.

     33.   An Order was issued in the divorce case that allowed George to
           use the Mustang for 30 days only. When the 30 days were up
           and George refused to return the Mustang, I contacted the
           police.

     34.   I did not know any of the officers at the Bethel Police.

           FURTHER AFFIANT SAYETH NOT.

Id. at 4-6. The federal district court granted the motion for leave to amend

and subsequently granted the motion for summary judgment.1

     In the present lawsuit, GK alleges that WK’s Affidavit was defamatory

because it “falsely accused him of criminal assault,” GK’s Brief at 3, and

because in filing it WK “vindictively conspired with Bethel Defendants to


1
    The United States Court of Appeals for the Third Circuit affirmed the
district court’s grant of summary judgment.        Trial Court Opinion,
11/10/2014, at 12 n.5.


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thwart [GK’s] success in the [Federal Suit].” Complaint, ¶ 21. On April 28,

2014, GK filed a motion for partial summary judgment, and on May 6, 2014,

WK filed a motion for summary judgment. By order dated June 18, 2014,

the trial court granted WK’s motion for summary judgment. On appeal, GK

contends that the trial court erred as a matter of law in issuing its June 18,

2014 order.

      Our standard of review with respect to a trial court's decision to grant

or deny a motion for summary judgment is as follows:

              A reviewing court may disturb the order of the trial
              court only where it is established that the court
              committed an error of law or abused its discretion.
              As with all questions of law, our review is plenary.

              In evaluating the trial court's decision to enter
              summary judgment, we focus on the legal standard
              articulated in the summary judgment rule. Pa.R.C.P.
              1035.2. The rule states that where there is no
              genuine issue of material fact and the moving party
              is entitled to relief as a matter of law, summary
              judgment may be entered. Where the non-moving
              party bears the burden of proof on an issue, he may
              not merely rely on his pleadings or answers in order
              to survive summary judgment. Failure of a non[-
              ]moving party to adduce sufficient evidence on an
              issue essential to his case and on which it bears the
              burden of proof establishes the entitlement of the
              moving party to judgment as a matter of law.
              Lastly, we will view the record in the light most
              favorable to the non-moving party, and all doubts as
              to the existence of a genuine issue of material fact
              must be resolved against the moving party.




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Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (quoting JP

Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261–62 (Pa. Super.

2013)), appeal denied, 108 A.3d 36 (Pa. 2015).

      The trial court determined that WK’s Affidavit could not form the basis

for a defamation action because it is protected by the judicial privilege. We

agree.    In discussing the judicial privilege, our Supreme Court has

instructed:

              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.” Post v. Mendel, 510 Pa. 213, 507
              A.2d 351, 355 (1986) (emphasis in original). 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.” Id. As we
              explained in Post, “[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.” Id. Notably, this
              privilege is extended not only to parties so that they
              are not deterred from using the courts, but also to
              judges so that they may “administer the law without
              fear of consequences,” “to witnesses to encourage
              their complete and unintimidated testimony in court,
              and to counsel to enable him to best represent his
              client's    interests.”        Binder     v.    Triangle
              Publications, Inc., 442 Pa. 319, 275 A.2d 53, 56
              (1971).

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

      Pennsylvania has adopted section 587 of the Restatement (Second) of

Torts, which provides an absolute privilege to parties to private litigation “to


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publish defamatory matter concerning another … if the matter has some

relation to the proceeding.” Restatement (Second) of Torts § 587 (2012);

see, e.g., Pawlowski v. Smorto, 588 A.2d 36, 42 (Pa. Super. 1991).

Section 588 offers a parallel rule for witnesses, providing that “a witness is

absolutely privileged to publish defamatory matter concerning another in

communications preliminary to a proposed judicial proceeding or as a part of

a judicial proceeding in which he [or she] is testifying, if it has some relation

to the proceeding.” Restatement (Second) Torts § 588 (2012). Since final

judgments in cases are based on witness testimony, “it is necessary [ ] that

a full disclosure not be hampered by fear of private suits for defamation.”

Restatement (Second) Torts § 588 cmt. (b) (2012).

      The statements in WK’s Affidavit, even if defamatory, may not form

the basis for civil liability in Pennsylvania. In accordance with sections 587

and 588, WK’s statements were provided in the regular course of judicial

proceedings (at the summary judgment stage of the Federal Suit) and were

pertinent and material to the subject matter of the Federal Suit. As a result,

the trial court did not err in granting WK’s motion for summary judgment

dismissing all of GK’s claims against her.2




2
   On appeal, GK has not challenged the trial court’s dismissal of his claim for
wrongful use of judicial proceedings pursuant to 42 Pa. C.S.A. § 8351 (Count
III). The trial court noted that GK had not stated a cause of action because
WK was not a party to the Federal Suit. Trial Court Opinion, 11/10/2014, at
14.


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         In his appellate brief, GK contends that the trial court’s ruling applying

the absolute judicial privilege was error because WK was not a client of the

law firm representing the defendants in the Federal Suit, or a party,

attorney, or judge in the Federal Suit.         GK’s Brief at 17.   GK cites to no

authority in support of such limitations on application of the judicial

privilege, however, and this Court is not aware that any such limitations

exist.

         GK further argues that WK was not a “witness” because she did not

testify in court or by deposition. Id. at 18. GK notes that WK stated that

she submitted an affidavit so that she could avoid having to appear for a

deposition. Id. Again, however, no such limitations on the application of the

judicial privilege exist. Our Pennsylvania Supreme Court has ruled that “[a]ll

communications pertinent to any stage of a judicial proceeding are accorded

an absolute privilege which cannot be destroyed by abuse,” and that

“statements by a party, a witness, counsel, or a judge cannot be the basis of

a defamation action whether they occur in the pleadings or in open

court.”     Binder v. Triangle Publ'ns, Inc., 275 A.2d 53, 56 (Pa. 1971)

(emphasis added).

         As the trial court correctly emphasized, GK himself identified WK in his

Disclosure Statement pursuant to Rule 26 of the Federal Rules of Civil

Procedure in the Federal Suit as a an individual “reasonably likely to have

information concerning the subjects” at issue in that case.            Trial Court



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J-A09024-15


Opinion, 11/10/2014, at 13. We find unconvincing GK’s argument that this

point is irrelevant because neither party subsequently listed WK as a witness

in their pretrial statements in the Federal Suit. Even if, as GK contends, the

omission from the pretrial statements precludes WK from being a “witness in

the litigation as a matter of Federal Law,” GK’s Brief at 23, it is irrelevant for

present purposes. A person’s status as a witness for purposes of application

of the judicial privilege under Restatement section 588 does not depend

upon their identification as a witness by a party to the litigation, as our

Supreme Court has held that even those who volunteer as witnesses are

protected under section 588. Ginsburg v. Halpern, 118 A.2d 201, 202 (Pa.

1955) (“Even if defendants had been shown to have volunteered to be

witnesses and then [gave] false testimony against plaintiff [it] would not

constitute a valid cause of action.       In support of this we refer to the

Restatement of Torts of the American Law Institute, Section 588.”).

      In WK’s Affidavit, she testified under oath to what she observed and

heard regarding the events at issue in the Federal Suit. Pursuant to sections

587 and 588 of the Restatement (Second) of Torts, she is protected by an

absolute judicial privilege, even if her statements could be construed as

libelous or defamatory. For this reason, the trial court’s order granting WK’s

motion for summary judgment was not error, and GK is not entitled to any

relief on appeal.

      Order affirmed.



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J-A09024-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2015




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