J-S74016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARY BUSH                                         IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                         Appellant

                    v.

THOMAS LAWRENCE

                         Appellee                     No. 1713 EDA 2018


                Appeal from the Order Entered April 26, 2018
              In the Court of Common Pleas of Chester County
                     Civil Division at No: 2016-06184-TT


BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 11, 2019

      Appellant, Mary Bush, appeals pro se from the April 26, 2018 order

sustaining preliminary objections to her third amended complaint and

dismissing the complaint with prejudice. We affirm.

      The record reveals that Appellant’s mother, Genevieve Bush (“Mrs.

Bush”), is a resident at a nursing home. According to the parties’ filings in

this case, Appellant’s conduct at the nursing home was disruptive and

upsetting to Mrs. Bush, to other residents, and to the nursing home staff. In

January of 2016, Appellant was arrested and charged with trespass, disorderly

conduct, and resisting arrest based on her behavior at the nursing home.

Appellee, Thomas Lawrence, serves as the attending physician for the nursing

home.   At the request of the nursing home’s director of nursing, Appellee

wrote a letter to be read in court during a hearing on Appellant’s petition for
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bail modification in the criminal proceeding. Appellee’s May 23, 2016 letter

reads as follows:

      To Whom It May Concern:

      Ms. Genevieve Bush is a patient under my care at Park Lane at
      Bellingham nursing facility where I serve her as Attending
      Physician. I was asked to comment on the appropriateness of her
      receiving visits from her daughter and the impact that this has on
      her health. Her daughter has a long-standing history of causing
      turmoil during her visits and the staff at the nursing facility have
      witnessed Ms. Bush to be extremely upset by these visits. In
      addition, I have been informed that her daughter has been
      disruptive to the staff and to their caring for other residents as
      well as being disruptive to the other residents directly.

      Also of great concern is that her daughter fabricates untruths
      regarding Ms. Bush’s medical care and her medical condition. On
      one occasion she relayed a series of untrue statements about her
      health to her cardiologist causing him to change orders for
      treatment without even seeing the patient.          On numerous
      occasions the Pennsylvania Department of Health has been given
      false reports about her health status from her daughter who has
      not had any direct information about her health for some time. It
      is my understanding that her daughter has been prevented from
      visiting her at that facility due to the negative impact her visits
      have on her mother’s health as well as disruption to the other
      residents and staff at the facility.

      Please let me know if I can answer any questions about these
      issues. Thank you.

Third Amended Complaint, at Exhibit A.

      According to Appellant, the judge presiding over the criminal proceeding

imposed a bail condition prohibiting Appellant from visiting the nursing home.

Regardless of the criminal proceedings, the nursing home decided in January

of 2016 to forbid entry to Appellant. Given her inability to visit her mother,

Appellant states that “[t]he issue before this court is a matter of justice for a


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mother and daughter.” Appellant’s Reply Brief at 1. We disagree, inasmuch

as the propriety of the bail condition is not before us and the nursing home is

not a party to this action. Rather, we must address the trial court’s dismissal

of Appellant’s civil action against Appellee.

       Procedurally, Appellant pro se filed an original and three amended

complaints against Appellee alleging defamation and related causes of action1

based on his authorship of the May 23, 2016 letter. After each successive

complaint, the trial court sustained Appellee’s preliminary objections.      In

footnotes to its orders, the trial court explained to Appellant that her

complaints were woefully legally deficient and offered suggestions for

correcting some of the problems. The order sustaining Appellee’s preliminary

objections to Appellant’s second amended complaint warned Appellant that

similar failures in her third amended complaint would result in dismissal with

prejudice.    When her third amended complaint failed to cure any of the

deficiencies, the trial court sustained Appellee’s fourth round of preliminary

objections and dismissed Appellant’s complaint with prejudice. This timely

appeal followed.

       We conduct our review according to the following:

             Our standard of review of an order of the trial court
       overruling or sustaining preliminary objections is to determine
       whether the trial court committed an error of law.        When
____________________________________________


1  Appellant’s third amended complaint included, in addition to defamation, a
civil conspiracy cause of action. Her appellate briefs do not develop a coherent
argument regarding the dismissal of that cause of action.

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      considering the appropriateness of a ruling on preliminary
      objections, the appellate court must apply the same standard as
      the trial court.

            Preliminary objections in the nature of a demurrer test the
      legal sufficiency of the complaint. When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.       Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases in
      which it is clear and free from doubt that the pleader will be unable
      to prove facts legally sufficient to establish the right to relief. If
      any doubt exists as to whether a demurrer should be sustained, it
      should be resolved in favor of overruling the preliminary
      objections.

Adams v. Hellings Builders, Inc., 146 A.3d 795, 798 (Pa. Super. 2016)

(citation and alterations omitted).

      Appellant’s third amended complaint, filed December 19, 2017, is a

rambling, incoherent, forty-six page document written largely in narrative

form. The Judicial Code places the following burden on a defamation plaintiff:

      (a) Burden of plaintiff.--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.

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42 Pa.C.S.A. § 8343(a).

      Among many deficiencies, Appellant fails to explain precisely which

statements in Appellee’s May 23, 2016 letter are defamatory.          Further,

Appellant fails to explain precisely to whom—other than the presiding judge

in the criminal case—Appellee published his allegedly defamatory statements.

As Appellee correctly notes, “[a] complaint for defamation must, on its face,

identify specifically what allegedly defamatory statements were made, and to

whom they were made. Failure to do so will subject the complaint to dismissal

for lack of publication.” Moses v. McWilliams, 170, 549 A.2d 950, 960 (Pa.

Super. 1988), appeal denied, 558 A.2d 532 (Pa. 1989). Appellant also fails

to explain how any recipient or recipients of the May 23, 2016 letter

appreciated its allegedly defamatory character. We observe that the letter

never names Appellant. Additionally, Appellant’s complaint and appellate brief

fail to allege or explain why Appellee’s letter was not subject to absolute

judicial privilege. See generally, Schanne v. Addis, 121 A.3d 942, 945 (Pa.

2015).

      Rather than address these issues, Appellant spends much of her

principal and reply briefs complaining of procedural deficiencies with

Appellee’s preliminary objections, which she believes misstated pertinent facts

and failed to include a proper verification. These assertions, even if correct




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(we express no opinion), do not absolve Appellant of her failure, in four tries,

to state a claim upon which relief could be granted.2

       In light of all of the foregoing, we discern no error in the trial court’s

order sustaining Appellee’s preliminary objections and dismissing the

complaint with prejudice. See Spain v. Vicente, 461 A.2d 833, 837 (Pa.

Super. 1983) (noting that “the right to amend will be withheld if there does

not appear to be a reasonable possibility that amendment will be

successful.”).3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/19


____________________________________________


2   See Pa.R.C.P. No. 1028(a)(4).

3  Appellant cites Haines v. Kerner, 404 U.S. 519, 520-21 (1972), in which
the United States Supreme Court held that the pleadings of a pro se
incarcerated litigant should not be held to the same stringent standard as
pleadings drafted by an attorney. The litigant in Haines was seeking redress
against the state governor and various prison officials for alleged deprivation
of rights during his incarceration. Id. For purposes of a state law civil claim
in Pennsylvania, however, this Court has held that pro se litigants are “not
absolved from complying with procedural rules.” Hoover v. Davila, 862 A.2d
591, 595 (Pa. Super. 2004). Even so, the trial court permitted Appellant to
amend her complaint three times and offered Appellant guidance on how to
cure the various deficiencies in her complaints. The order on appeal was not
the result of unfair treatment of a pro se litigant.

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