J-A27016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOLORES RUSIEWICZ,                      :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
           v.                           :
                                        :
WILLIAM J. CHASE,                       :
                                        :
                       Appellee         :     No. 20 WDA 2014


             Appeal from the Order Entered December 2, 2013,
            In the Court of Common Pleas of Allegheny County,
                    Civil Division, at No. GD 13-004768.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED DECEMBER 18, 2014

     Dolores Rusiewicz (“Appellant”), appeals from the order entered on

December 2, 2013, that granted William J. Chase’s (“Appellee”) preliminary

objections and dismissed her complaint. We affirm.

     At issue in this matter is the March 15, 2012 grievance letter that

Appellee sent to multiple administrative offices at the University of

Pittsburgh regarding an incident between Appellee’s son and Appellant. At

all relevant times, both Appellant and Appellee were employed by the

University of Pittsburgh. Appellant worked as an Ombudsman in the Office

of Student Appeals, and Appellee was a professor of Russian History.

     On February 29, 2012, Appellee’s son, Matthew Chase, sought to drop

a class from his schedule.   There was a dispute and argument between
J-A27016-14



Appellee’s son and Appellant regarding the signature on a University of

Pittsburgh form.

     In response to the situation, Appellee drafted the aforementioned

grievance letter. The letter is reproduced below:

     Ms. Cheryl Ruffin                               15 March 2012
     Employee Relations Specialist
     Human Resources
     100 Craig Hall
     Pittsburgh, PA 15260

     Filing of a grievance against Ms. Dolores Rusiewicz

     Dear Ms. Ruffin:

            I am writing to file a grievance against Ms. Dolores
     Rusiewicz, a staff member in the Student Financial Services
     office, and to request an investigation of her behavior, which I
     outline below. Given my status and the situation, I do not know
     if you are the appropriate person to address, but I assume that
     you will know best how to handle this grievance. My complaint
     centers on Ms. Rusiewicz’s verbally abusive, demeaning, and
     intimidating treatment of a student (Matthew P. Chase) and her
     deliberate countermanding of the decision of an Assistant Dean’s
     approval without proper investigation or authorization. As I am
     the father of the student who experienced Ms. Rusiewicz’s
     unprofessional treatment, I admit that I have a personal bias.
     However, as a faculty member at the University for the past
     thirty-two years, I find her behavior to be absolutely
     unacceptable. Such behavior damages the hard work and fine
     reputation of the vast majority of staff and faculty who interact
     with students. Permit me to set the context for Ms. Rusiewicz’s
     unprofessional and unjustifiable behavior.

           On Tuesday, 28 February, Matthew Chase went to the
     Office of the Registrar to request a Late Drop for the course that
     he was taking in the School of Education (IL 1562). Matthew
     sought the Late Drop because he had come to the conclusion
     that he would be unable to complete the course’s requirements


                                      -2-
J-A27016-14



     in the aftermath of his late brother’s hospitalization. On 11
     February, Matthew’s brother was in an automobile accident that
     left him in a coma in the NeuroTrauma ICU at UPMC
     Presbyterian. On 27 February, when it was clear that his brother
     would remain in a vegetative state, Matthew and I made the
     decision to move his brother to a hospice, where he died on 3
     March. The strain of his brother’s condition was such that
     Matthew realized that he would be unable to complete the
     requirements for his class, especially the required group
     observations. Until his brother’s accident, Matthew had attended
     all of his classes save for one class when he had influenza; his
     instructor had approved that absence. When Matthew visited the
     Office of the Registrar to request a Late Drop, he had with him a
     letter from the Critical Care Coordinator of the NeuroTrauma ICU
     and other paperwork from UPMC attesting to his brother’s
     condition.

           The staff in the Office of the Registrar treated Matthew in a
     very professional manner and informed him that he needed the
     approval of an Assistant Dean for his request for a Late Drop. As
     I was in my son’s room in UPMC Presbyterian at the time,
     Matthew called me to tell me what he needed to do. I told him
     that I would accompany him to the A&S Dean’s office in
     Thackeray Hall. There we met with Assistant Dean George
     Novacky. In light of the situation, Assistant Dean Novacky
     approved Matthew’s request for a Late Drop; he signed and
     dated    the    appropriate     paperwork.      Matthew    returned
     unaccompanied to the Office of the Registrar, where a staff
     member told him that he needed one final approval from the
     Office of Student Appeals in the Office of the Registrar’s suite.
     On that day, Ms. Dolores Rusiewicz was in that office. In her
     dealing with Matthew, Ms. Rusiewicz was rude, verbally abusive,
     and unprofessional. She never asked Matthew why he sought the
     Late Drop; in fact, she claimed that there was no such policy as
     a Late Drop. Nor did she ask to see the paperwork from UPMC.
     Rather, she accused Matthew of never having gone to class,
     which was untrue, of lying, which was untrue, and of forging
     Assistant Dean Novacky’s signature, which was untrue. Her tone
     throughout the conversation was hostile and demeaning. When
     Matthew asked her why, given her assertion, the Assistant Dean
     would approve such a request, she stated that the Assistant
     Dean did not know what he was talking about. She then crossed


                                     -3-
J-A27016-14



     out Assistant Dean Novacky’s signature by making a large “X”
     across it. After Matthew stated that, “I do not want to be treated
     like shit,” he rose to leave Ms. Rusiewicz’s office. Matthew is not
     given to using profanity, but under the circumstances, his
     frustration was understandable. Ms. Rusiewicz followed him out
     of the office and told the staff members in the Office of the
     Registrar to call Campus Security. Rather than do so, a staff
     member got David Robert Carmen, who after getting a brief
     synopsis of the situation, went to Assistant Dean Novacky, who
     once again signed and dated the form for a Late Drop. Mr.
     Carmen returned to the Office of the Registrar and instructed a
     staff member there to input the Late Drop for Matthew. After
     hearing of the incident, I returned to the Office of the Registrar
     to thank Mr. Carmen and staff for their handling the situation
     with professionalism and empathy. At that time, I learned of Ms.
     Rusiewicz’s name. Given my son Alex’s subsequent death, it is
     only now that I have the ability to file this grievance.

             As a longstanding member of the University community, I
     find Ms. Rusiewicz’s behavior to be absolutely unacceptable. She
     subjected a student to verbal insults and abuse; she
     countermanded an Assistant Dean’s order without any
     investigation or authorization; and she denied that the University
     even had a Late Drop policy. Had Matthew been a typical
     student, that is if his father was not a faculty member who
     happened to witness Assistant Dean Novacky’s approval of the
     request for a Late Drop, Ms. Rusiewicz’s unprofessional and
     demeaning behavior may not have come to light. Many students,
     uncertain about their rights, may well have let the situation
     pass. I do not know if Ms. Rusiewicz’s behavior that day is
     typical or atypical for her. In this instance, that is irrelevant.
     What matters is that no student should not [sic] be exposed to
     such hostile treatment when making a legitimate request for the
     fulfillment of University policy. The vast majority of University
     staff members and faculty know this and treat students with
     respect. That Ms. Rusiewicz apparently does not do so damages
     the reputation and undermines the hard work of all staff
     members. Such behavior has no place at the University of
     Pittsburgh.

          According to the Human Resources website on Disciplinary
     Concerns, “If an employee violates a University policy or rule or


                                     -4-
J-A27016-14



     is not meeting performance requirements, has been
     insubordinate, or has engaged in conduct affecting the workplace
     and/or other employees or students, a supervisor may take
     disciplinary action.” Examples of grounds for dismissal include:
     “Threatening or intimidating students,” including “abusive,
     demeaning, profane or threatening language to anyone,” and
     “Insubordination and Falsification of documents.” Ms. Rusiewicz’s
     language and behavior was clearly intimidating, abusive, and
     demeaning; her willful destruction of Assistant Dean Novacky’s
     signature constitutes both insubordination and a falsification of a
     University document.

           Although I am not Ms. Rusiewicz’s supervisor, in filing this
     grievance, I expect that the appropriate University officials will
     conduct a formal investigation of this incident and of Ms.
     Rusiewicz’s behavior over time. Please inform me in writing of
     the results of this investigation.

                                   Sincerely,

                                   s/ William J. Chase

                                   William J. Chase
                                   Professor of History
                                   Director, Urban Studies Program

     Cc: Associate Vice Chancellor for Student Financial Services,
     Dennis DeSantis
     Associate Provost Juan Manfredi
     Associate Dean Richard Howe
     Associate Dean John Twyning
     Assistant Dean George A. Novacky

Appellant’s Complaint, 3/13/13 Exhibit 1 (Grievance Letter, 3/15/12).

     The University conducted an investigation into Appellee’s claims, and

on April 12, 2012, Attorney John Greeno of the University of Pittsburgh’s

Legal Department drafted the following memorandum relating his findings

and conclusions:


                                     -5-
J-A27016-14



      TO:         Dolores Rusiewicz
      FROM:       John Greeno
      SUBJECT:    Investigation
      DATE:       April 12, 2012
      CC:         Dennis DeSantis

            This is to advise you that I have completed my
      investigation into the allegations raised by William Chase with
      respect to your interaction with his son, Matthew, on or about
      February 29, 2012. I have concluded that you did not violate
      University policy, and I have so informed William Chase. My
      conclusion is that you correctly advised Matthew Chase that he
      did not have the correct signature on the Add/Drop form, and
      that the interaction degenerated due to an unfortunate
      combination of circumstances, including the tragic situation
      involved (of which you were not aware), Matthew’s fragile state,
      and the failure of others to recognize the erroneous signature
      before sending Matthew to see you. I have recommended that
      members of all offices involved in this occurrence be reminded of
      the importance of obtaining pertinent information when assisting
      students.

            There is no reason for anything related to this matter to be
      included in your departmental file, and I consider the matter to
      be closed. Thank you for your cooperation.

Appellant’s   Complaint,   3/13/13    Exhibit   2   (Human   Resources    Letter,

4/12/12).

      On March 13, 2013, Appellant filed a 189 paragraph complaint in

which she raised ninety counts of defamation of character and one count

alleging intentional infliction of emotional distress. Appellee filed preliminary

objections in which he averred that the complaint should be dismissed

because Appellant failed to state a cause of action upon which relief could be

granted.    Preliminary Objections, 7/17/13, at ¶¶ 9, 16. On December 2,




                                        -6-
J-A27016-14



2013, the trial court sustained Appellee’s preliminary objections.     The trial

court concluded that Appellee’s grievance letter was incapable of being

defamatory because it asserted merely Appellee’s opinions. Additionally, the

trial court found that Appellant could not sustain her claim of intentional

infliction of emotional distress as there was no extreme or outrageous

conduct. The December 2, 2013 order dismissed Appellant’s complaint with

prejudice. This timely appeal followed.1


1
   As will be discussed in greater detail below, Appellee filed preliminary
objections averring that Appellant failed to state a claim upon which relief
could be granted. Preliminary Objections, 7/17/13, at ¶¶ 9, 16. While it
appears from the preliminary objections that Appellee focused on Appellant’s
failure to present evidence of damages, Appellee did state, generally, that
Appellant failed to state a claim upon which relief could be granted. In
reaching its decision, the trial court treated Appellee’s preliminary objections
as a demurrer, and focused on whether the allegedly defamatory statement
was an opinion. The trial court decided the preliminary objections on that
issue and did not discuss damages. However, Appellant never challenged
the trial court’s decision to treat Appellee’s preliminary objections as a
demurrer and dispose of the preliminary objections on the basis that the
statement was an opinion, and thus not defamatory. Additionally, Appellant
has not presented a challenge on this issue in her appeal.              Because
Appellant never challenged the trial court’s decision to focus on whether the
statement at issue was an opinion as opposed to whether Appellant
established damages, we deem it waived on appeal. Moreover, in her brief
on appeal, Appellant assails only the trial court’s determination that the
statement at issue was an opinion and not capable of defamatory meaning.
Accordingly, we will proceed with our discussion and review the trial court’s
decision as an order granting preliminary objections in the nature of a
demurrer. See Dominski v. Garrett, 419 A.2d 73 (Pa. Super. 1980)
(stating that where preliminary objections were treated as a demurrer by the
trial court, and where the appellant did not challenge the trial court’s
decision on those grounds, the reviewing court would treat the preliminary
objections as a demurrer; the course of litigation would not be served by
dismissing the objections).


                                       -7-
J-A27016-14



      On appeal, Appellant raises the following issue for this Court’s

consideration:

            Whether the Lower Court erred when it sustained
      Appellee’s Preliminary Objections where underlying defamatory
      facts and an accusation of the crime of Forgery supported
      Appellant’s defamation claims and intentional infliction of
      emotional distress claim.

Appellant’s Brief at 12 (italicization omitted).

      The standard of review we apply when reviewing a trial court’s order

granting preliminary objections in the nature of a demurrer is as follows:

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

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (quoting Haun

v. Community Health Systems, Inc., 14 A.3d 120, 123 (Pa. Super.

2011)).

      In order to succeed on a claim of defamation, the plaintiff bears the

following burden of proof:


                                        -8-
J-A27016-14



     (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.

42 Pa.C.S. § 8343(a).

     A defamatory statement is defined as follows:

            Defamation is a communication which tends to harm an
     individual’s reputation so as to lower him or her in the estimation
     of the community or deter third persons from associating or
     dealing with him or her. Under Pennsylvania defamation law,
     only statements of fact can support an action for libel or slander,
     not merely expressions of opinion. Further, whether a
     particular statement or writing constitutes fact or opinion
     is a question of law for the court to determine in the first
     instance. Additionally, it is within the trial court’s
     province to determine whether the challenged statements
     are capable of having defamatory meaning.

Elia v. Erie Ins. Exchange, 634 A.2d 657, 660 (Pa. Super. 1993)

(emphasis added).




                                       -9-
J-A27016-14



      Additionally, in order “to prevail on a claim of intentional infliction of

emotional distress, Appellant[] must prove that [Appellee], by extreme and

outrageous    conduct,   intentionally   or     recklessly   caused    [her]   severe

emotional distress.” Brezenski v. World Truck Transfer, 755 A.2d 36, 45

(Pa. Super. 2000).

      Appellant   argues   that   Appellee’s     grievance    letter   defamed    her

generally, accused her of forgery,2 and as a result of Appellee’s actions she

has suffered from physical manifestations of anxiety and other maladies.

Upon review, we conclude that Appellant is entitled to no relief.

      The trial court aptly addressed this issue as follows:

            I find that such statements are not capable of a
      defamatory meaning because they are only the writer’s opinions
      as to how [Appellant] performed her job.

                                     ***

            In the present case, the statements in the letter were
      those of a disgruntled parent regarding an incident between
      [Appellant] and [Appellee’s] son as reported by the son. These
      are expressions of opinion that may, in fact, be given little
      weight because opinions of disgruntled parents, even faculty
      member parents, tend to receive little weight. These expressions
      of opinion in [Appellee’s] letter are probably less offensive than a
      newspaper article accusing a person who holds himself out as a


2
   Appellant’s claim that Appellee allegedly accused her of the crime of
forgery and thus defamed her, apparently stems from that part of the
grievance letter wherein Appellee stated that Appellant crossed-out Assistant
Dean Novacky’s signature by making a large “X” across it. Appellant then
links that statement to the part of the grievance letter that stated that
falsification of documents is grounds for dismissal. Appellant’s Brief at 27.


                                         -10-
J-A27016-14



      community activist of land speculation under the guise of being a
      community activist.[3]

            I am also dismissing [Appellant’s] claims based on the tort
      of intentional infliction of emotional distress. To prevail on a
      claim of intentional infliction [of] distress, a plaintiff must prove
      that the defendant, by extreme and outrageous conduct,
      intentionally or recklessly caused severe emotional distress.
      Brezenski v. World Truck Transfer, 755 A.2d 36, 45 (Pa.
      Super. 2000).

             [Appellant] made a large X across the Assistant Dean’s
      signature approving a Late Drop. [Appellee] characterized this
      conduct as “a falsification of a university document.” However,
      this is only defendant’s opinion as to how the behavior should be
      characterized. This characterization does not constitute extreme
      and outrageous conduct.

Trial Court Opinion, 12/2/13, at 1-3.

      We agree with the trial court’s assessment that Appellee’s letter was

merely the opinion of a disgruntled parent, and it was incapable of

defamatory meaning. Elia, 634 A.2d at 660. Moreover, we further agree

that Appellee’s conduct was not outrageous, and therefore, there can be no

cause of action for intentional infliction of emotional distress.    Brezenski,

755 A.2d at 45. We discern no abuse of discretion or error of law in the trial




3
  The trial court is referencing its earlier discussion of Alston v. PW-
Philadelphia Weekly, 980 A.2d 215 (Pa. Cmwlth. 2009) (stating that a
newspaper article that referred to a neighborhood activist as “no more than
a land speculator who cloaks himself in the guise of a community activist”
was an expression of opinion and not actionable under law) (citing the
Restatement (Second) of Torts §566, Comment C). Trial Court Opinion,
12/2/13, at 2.

                                        -11-
J-A27016-14



court’s conclusions, and therefore, we affirm the order granting Appellee’s

preliminary objections and dismissing Appellant’s complaint.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




                                     -12-
