J-A15031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN M. MORLEY, JR.                            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

STACEY ANNE COLLAZZO

                         Appellee                   No. 2852 EDA 2015


                Appeal from the Order Entered August 7, 2015
            in the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): No. 140902787


BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JULY 14, 2016

      John M. Morley, Jr. (“Appellant”) appeals, pro se, from the August 7,

2015 order of the Philadelphia County Court of Common Pleas granting

Appellee Stacey Anne Collazzo (“Appellee”) summary judgment.             After

careful review, we affirm.

      The relevant facts and procedural posture of this matter are as follows.

Appellant and Appellee were involved in a romantic relationship that began

in 2009 and ended in April or May of 2013. On September 30, 2013 and

October 1, 2013, the Chief Nursing Officer at Hahnemann University

Hospital, where Appellee was employed as a nurse, received anonymous

letters that enclosed naked photographs of Appellee and alleged that

Appellee shoplifted and used opiates. As a result of these letters, Appellee

filed a police report against Appellant and, on October 8, 2013, filed a
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petition for a protection from abuse order (“PFA”). The PFA petition claimed

Appellant sent the letters and naked photographs of Appellee to her

employer, that Appellant had told people in a bar explicit details of Appellant

and Appellee’s sex life, that Appellant once demanded sex from Appellee,

that Appellant was verbally abusive, and that Appellant suffers from

depression. The PFA court issued a temporary full stay away order after the

hearing on October 8, 2013.

      On September 22, 2014, Appellant filed a complaint against Appellee

sounding in defamation, false light, and abuse of process based on

allegations that Appellee lied in her petition for the purpose of gaining a PFA

against Appellant.   Appellee filed preliminary objections to the complaint

averring that her statements at the PFA hearing were protected by an

absolute privilege because they were made in the course of judicial

proceedings, that the alleged defamatory statements had not been published

beyond the court proceedings, and that Appellant had not alleged an

improper motive.

      Appellant filed an    amended complaint      that, together    with the

defamation, false light, and wrongful use of civil procedure counts, included

allegations that Appellee had published the defamatory statements to

numerous persons.     Specifically, the amended complaint alleged that on

October 5, 2013, Appellee’s friend accused Appellant of contacting Appellee’s

employer and sending “lascivious photographs” of Appellee to her employer.

The amended complaint also claimed that Appellee’s friend had stated that

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Appellant was mentally ill and should seek medical help.       The amended

complaint further averred that Appellee falsely stated Appellant’s address in

her petition, thus preventing the Philadelphia Police Department from

properly serving him with the PFA. Appellant claimed he learned of the PFA

only after attempting to purchase a firearm on October 11, 2013.

      Appellee filed preliminary objections to the amended complaint. After

Appellant filed an answer, the trial court overruled Appellee’s preliminary

objections on January 14, 2015.

      On January 16, 2015, Appellee filed an answer to Appellant’s amended

complaint. In her answer, Appellee denied Appellant’s claims and raised as

a new matter (1) that Appellant’s claims were barred because Appellee’s

actions were not the proximate cause of Appellant’s injury, (2) the defense

of privilege because the statements were made in the course of judicial

proceedings, and (3) the defense of the truth.    Appellee further raised an

abuse of process counterclaim that averred Appellant filed the instant suit as

part of a two-year campaign of abuse instigated by Appellant upon Appellee

after she ended their romantic relationship in 2013.

      Later in January, Appellant noticed Appellee’s deposition, requesting

that Appellee bring with her to the deposition: “any and all writings between

you and the Pennsylvania Department of State, Nurse board; and any and

all writings between you and your employer(s) since Wednesday, July 29,

2009.” On January 26, 2015, Appellee filed a discovery hearing request and

a motion for a protective order based on Appellant’s notice arguing that the

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requested correspondence was irrelevant, not reasonably calculated to lead

to the discovery of admissible evidence, and an attempt by Appellant to use

the court system to harass and invade Appellee’s privacy in her personal and

professional life.

       On February 13, 2015, the trial court ordered that Appellee was not

required to produce the requested writings at the deposition. Appellant filed

a motion for reconsideration, which the court denied on February 18, 2015.

       On February 27, 2015, Appellant filed a motion for judgment on the

pleadings, which the trial court dismissed on March 30, 2015.

       Appellee filed a motion for summary judgment on June 12, 2015,

which the trial court granted on August 7, 2015.1        Appellant filed a timely

notice of appeal on September 2, 2015, and a Pa.R.A.P. 1925(b) statement

on September 21, 2015.             The trial court filed its 1925(a) Opinion on

November 9, 2015.

       Appellant raises the following four (4) claims for review:

       [1.] Are writings between [Appellee] and the Pennsylvania
       Department of State Nurse Board and her employer reasonably
       calculated to lead to the discovery of admissible evidence?




____________________________________________


1
   This is a simplification of the procedural posture. Between the June 12,
2015 filing of Appellee’s motion for summary judgment and the trial court’s
August 5, 2015 grant thereof, Appellant filed multiple filings to which
Appellee filed multiple responses. We have omitted the specifics of these
filings, however, because they do not bear on the instant appeal.



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      [2.] Did the trial court abuse it’s [sic] discretion when it sua
      sponte ordered [Appellee’s] counsel to not waive objections at
      the deposition of [Appellee]?

      [3.] Is [Appellee], who appeared without [s]ubpoena in the
      underlying [PFA] Court, in an ex parte hearing, wherein hearsay
      was considered and no criminal proceeding against [Appellant]
      was pending, entitled to Judicial or Witness Immunity?

      [4.] Are material facts in dispute?

Appellant’s Brief, p. 5.

      This Court’s scope and standard of review on an appeal from the grant

of a motion for summary judgment is well settled:

      Our scope of review of a trial court’s order granting or denying
      summary judgment is plenary, and our standard of review is
      clear: the trial court’s order will be reversed only where it is
      established that the court committed an error of law or abused
      its discretion.

      Summary judgment is appropriate only when the record clearly
      shows that there is no genuine issue of material fact and that
      the moving party is entitled to judgment as a matter of law. The
      reviewing court must view the record in the light most favorable
      to the nonmoving party and resolve all doubts as to the
      existence of a genuine issue of material fact against the moving
      party. Only when the facts are so clear that reasonable minds
      could not differ can a trial court properly enter summary
      judgment.

Herder     Spring    Hunting    Club    v.   Keller,   93   A.3d   465,   468

(Pa.Super.2014), reargument denied (July 11, 2014), appeal granted, 108

A.3d 1279 (Pa.2015) (quoting Shamis v. Moon, 81 A.3d 962, 968–69

(Pa.Super.2013)).




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       Appellant’s first two claims deal with the trial court’s February 12,

2015 discovery order.2 First, Appellant claims the trial court erred by ruling

that Appellee need not produce at her deposition writings between herself

and the state Board of Nurses, and herself and her employers from 2009

through the date of the deposition.               See Appellant’s Brief, p. 13-16.

Second, Appellant claims the trial court erred by sua sponte directing

Appellee’s counsel to not waive objections at the deposition, but instead to

place all objections on the record.            See id. at 16-18.   These claims lack

merit.3

             Generally, on review of an order concerning discovery, an
       appellate court applies an abuse of discretion standard. To the
       extent that the question involves a pure issue of law, our scope
       and standard of review are plenary.

Crum v. Bridgestone/Firestone N. Am. Tire, LLC, 907 A.2d 578, 585

(Pa.Super.2006) (internal citations and quotations omitted); see also PECO

____________________________________________


2
 The trial court filed the original order on February 12, 2015. The February
18, 2015 order denied Appellant’s requested reconsideration of the February
12, 2015 order.
3
  The trial court and Appellee argue these discovery claims are either non-
appealable as interlocutory or waived as untimely. See Appellee’s Brief, pp.
7-9; 1925(a) Opinion, pp. 13-14. Appellant alleges the claims are an appeal
of a collateral order (or, if interlocutory, properly brought following a final
order in the case). See Appellant’s Brief, pp. 1-2. “Generally, discovery
orders are deemed interlocutory and not immediately appealable because
they do not dispose of the litigation.” Dougherty v. Heller, 97 A.3d 1257,
1261 (Pa.Super.2014). The instant appeal was timely taken after the trial
court issued a final order granting summary judgment. Therefore, we
decline to find Appellant’s claims either interlocutory or waived.



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Energy Co. v. Insurance Co. of North America, 852 A.2d 1230, 1233

(Pa.Super.2004) (“The trial court is responsible for ‘[overseeing] discovery

between the parties and therefore it is within that court’s discretion to

determine the appropriate measure necessary to insure adequate and

prompt discovering of matters allowed by the Rules of Civil Procedure.”).

      Pennsylvania’s Rules of Civil Procedure permit discovery regarding

“any matter, not privileged, which is relevant to the subject matter involved

in the pending action,” whether or not admissible at trial, provided that “the

information sought appears reasonably calculated to lead to the discovery of

admissible evidence.”    Pa.R.C.P. 4003.1.     The Rules prohibit, however,

irrelevant discovery, or discovery sought for an improper purpose. Pa.R.C.P.

4011; see also Keystone Dedicated Logistics, LLC v. JGB Enterprises,

Inc., 77 A.3d 1, 12 (Pa.Super.2013) (“The matters about which [a

discovery] inquiry is made must bear pertinently upon the matters which he

will be required to prove affirmatively at trial.” (internal quotations and

citation omitted; emphasis deleted)).     The Rules allow parties to request

protective orders to define and enforce the parameters of discovery in a

given matter. Pa.R.C.P. 4012.

      Here, the trial court granted Appellee’s request for a protective order

following Appellant’s request that Appellee produce “any and all writings

between [Appellee] and the Pennsylvania Department of State, Nurse Board”

or “any writings between [Appellee] and [her] employer since Wednesday

July 29, 2009.”      The instant lawsuit involves allegedly defamatory

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statements made in Appellee’s October 2013 PFA petition.               Accordingly,

Appellant’s requested discovery seeks documents well beyond the scope of

the case, and the trial court did not abuse its discretion in granting

Appellee’s motion for a protective order against the production of such wide-

sweeping and irrelevant documentation.

      The trial court also sua sponte included in its discovery order a

directive   that   Appellee’s   counsel    not   waive   objections   at   Appellee’s

deposition, but instead place all objections on the record with specificity so

the court would be able to rule upon them if Appellant filed any motions to

compel Appellee to answer. See Order, February 12, 2015; see also N.T.

2/12/2015, pp. 10-12.       As this Court has explained: “The trial court is

responsible for overseeing discovery between the parties and therefore it is

within that court’s discretion to determine the appropriate measure

necessary to insure adequate and prompt discovering of matters allowed by

the Rules of Civil Procedure.”      Berkeyheiser v. A-Plus Investigations,

Inc., 936 A.2d 1117, 1125 (Pa.Super.2007) (internal quotations and citation

omitted). Accordingly, it was within the trial court’s discretion to attempt to

expedite the pretrial discovery process by ordering counsel to place

objections on the record. This claim lacks merit.

      Appellant next claims the trial court erred in determining Appellee’s

alleged defamatory statements were privileged.           See Appellant’s Brief, pp.

18-23. He is incorrect.




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      “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.”      Elia v.

Erie Ins. Exch., 634 A.2d 657, 660 (Pa.Super.1993). “[O]nly statements of

fact can support an action for libel or slander, not merely expressions of

opinion.” Id.

             In an action for defamation, the plaintiff must prove: (1)
      the defamatory character of the communication; (2) publication
      by the defendant; (3) its application to the plaintiff; (4)
      understanding by the recipient of its defamatory meaning; (5)
      understanding by the recipient of it as intended to be applied to
      plaintiff; (6) special harm to the plaintiff; (7) abuse of a
      conditionally privileged occasion. Initially, it is the function of
      the court to determine whether the communication complained
      of is capable of a defamatory meaning. A communication is
      defamatory if it tends to harm the reputation of another as to
      lower him in the estimation of the community or to deter third
      persons from associating or dealing with him. A communication
      is also defamatory if it ascribes to another conduct, character or
      a condition that would adversely affect his fitness for the proper
      conduct of his proper business, trade or profession. If the court
      determines that the challenged publication is not capable of a
      defamatory meaning, there is no basis for the matter to proceed
      to trial; however, if there is an innocent interpretation and an
      alternate defamatory interpretation, the issue must proceed to
      the jury.

Krajewski v. Gusoff, 53 A.3d 793, 802-03 (Pa.Super.2012) (quoting Maier

v. Maretti, 671 A.2d 701, 704 (Pa.Super.1995)) (emphasis deleted).

      “It has long been the law of Pennsylvania that statements made by

judges, attorneys, witnesses and parties in the course of or pertinent to any

stage of judicial proceedings are absolutely privileged and, therefore, cannot

form the basis for liability for defamation.” Richmond v. McHale, 35 A.3d


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779, 784 (Pa.Super.2012); see also Post v. Mendel, 507 A.2d 351

(Pa.1986). As a general rule, no civil liability attaches to statements made

in pleadings or during discovery, trial, or argument of a case where the

statements are pertinent, relevant, and material to any issue in the suit.

See Post, 507 A.2d at 355; see also Bochetto v. Gibson, 860 A.2d 67, 71

(Pa.2004).

       Here, Appellee made the statements about which Appellant complains

in a PFA petition. The PFA petition alleged, in pertinent part, as follows:

       [Appellant] has been sending damaging letters to my job, he
       sent them to all the big bosses. He did not sign them but I know
       its him because there’s things in the letter [sic] only he could
       know. He sent nakes [sic] photos of me to my job also. He
       went to a bar and was talking about our sex life in explicit detail.
       My job is jeopardize [sic] now from him sending all these letter
       [sic] and I am being scrutinized. On 10/5/13 I called the police
       and filed a report against [Appellant] #13-01-039615.

       Parties were in a relationship for 3 years.         Parties [sic]
       relationship ended in May 2013. In the past on one occasion
       [Appellant] demanded [Appellee] have sexual relations with him.
       [Appellant] was very verbally abusive to [Appellee] during the
       relationship. [Appellant] told [Appellee] in the past he suffered
       from depression and was prescribed medication. [Appellant] is
       51 and [Appellee] is 44.

These statements were relevant and material to the claims of the PFA

petition and were made in a judicial pleading.4 Accordingly, the statements

were privileged and Appellant’s claim lacks merit.5
____________________________________________


4
  Appellant acknowledged as much at the February 12, 2015 hearing on
Appellee’s petition for a protective order in which the following exchange
took place between the court and Appellant, acting pro se:
(Footnote Continued Next Page)


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      Finally, Appellant argues the trial court erred in granting Appellee

summary judgment because factual disputes remain. See Appellant’s Brief,

pp. 23-32. This claim also lacks merit.

      Initially, the trial court properly concluded that any statements made

in the course of the PFA proceedings were privileged and thus could not

support Appellant’s claims for defamation or false light.              Further, as to

Appellee’s   alleged      extrajudicial    statements,   after   receiving   Appellee’s

preliminary objections to the original complaint in which she claimed she

only made statements in her PFA petition, the trial court stated:

      Appellant further argues that Appellee made extrajudicial
      statements to family and friends. However, although Appellant
                       _______________________
(Footnote Continued)


      THE COURT: Let me see if I understand you. She filed a
      protection from abuse order under the statutes of the
      Commonwealth of Pennsylvania?

      [APPELLANT]: Correct.

      THE COURT:     So you filed an action against her for the
      statements made in that complaint?

      [APPELLANT]: Right. . . .

N.T. 2/12/2015, p. 6.
5
  Appellant’s claims that (1) Appellee “appeared without subpoena,” (2) the
original hearing was conducted ex parte, and (3) the trial court received and
considered hearsay testimony at the hearing have no bearing on whether
the statements in Appellee’s PFA petition are privileged, and we need not
discuss them further. Additionally, to the extent Appellant argues his
defamation claims relate to statements Appellee made to her family and
friends, he has produced no evidence to support these claims and has
alleged no special harm resulting from them.



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     pled general allegations to this effect in his Amended Complaint,
     Appellee specifically denied them, and Appellant has not, either
     during discovery or through any other part of the proceeding,
     provided any factual basis on which to support these claims.
     The only possible statement Appellee made that Appellant can
     point to with any specificity is that, on October 4, 2013, Appellee
     spoke with Guiseppe and Salvatore Foglia, Appellant’s friends,
     and asked them for help in “getting [Appellant] off [her] back . .
     .” and told them that Appellant had sent letters to Appellee’s
     place of employment and that she feared for her life. These are
     not statements of fact but opinion, nor has Appellant plead any
     special harm resulting from this statement. Appellant cannot
     show defamation as a result. Consequently, Appellant has not
     and cannot make out a prima facie case for [d]efamation[.]

1925(a) Opinion, p. 11.

     The trial court’s conclusion is correct. Therefore, the trial court did not

abuse its discretion in granting Appellee’s motion for summary judgment as

to Appellant’s defamation claim.

     The same is true of Appellant’s false light claim. A false light claim is

actually a cause of action for invasion of privacy, which the Restatement

(Second) of Torts defines as:

     § 652E. Publicity Placing Person In False Light

     One who gives publicity to a matter concerning another that
     places the other before the public in a false light is subject to
     liability to the other for invasion of his privacy, if

     (a) the false light in which the other was placed would be highly
     offensive to a reasonable person, and

     (b) the actor had knowledge of or acted in reckless disregard as
     to the falsity of the publicized matter and the false light in which
     the other would be placed.

Restatement (Second) Torts, § 652E.          “Significantly, unlike the law of

defamation, false light invasion of privacy offers redress not merely for the


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publication of matters that are provably false, but also for those that,

although true, are selectively publicized in a manner creating a false

impression.”     Krajewski v. Gusoff, 53 A.3d 793, 806 (Pa.Super.2012)

(internal citation omitted).

      As the trial court correctly explained:

      [T]he statements made in the course of the PFA hearing were
      protected by an absolute privilege. Further, Appellant did not
      prove that Appellee publicized any statements outside of the PFA
      hearing to any one person and, in fact, specifically stated in his
      deposition testimony that he did not have actual factual
      knowledge of the time, place, and manner of any defamatory
      statement made by Appellee to many of the people Appellant
      alleged she had publicized to. Further, nothing said to the
      Foglias rises to the level of offensiveness required, or the level of
      recklessness required, to make out a prima facie case.

1925(a) Opinion, p. 12.

      Likewise, the trial court properly awarded Appellee summary judgment

on Appellant’s abuse of process claim.          The Judicial Code provides as

follows:

      § 8351. Wrongful use of civil proceedings

      (a) Elements of action.--A person who takes part in the
      procurement, initiation or continuation of civil proceedings
      against another is subject to liability to the other for wrongful
      use of civil proceedings:

           (1) he acts in a grossly negligent manner or without
           probable cause and primarily for a purpose other than that
           of securing the proper discovery, joinder of parties or
           adjudication of the claim in which the proceedings are
           based; and

           (2) the proceedings have terminated in favor of the person
           against whom they are brought.


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42 Pa.C.S. § 8351.

      As the trial court explained:

      Nowhere in Appellant’s pleadings has he pled or alleged that
      Appellee acted in a grossly negligent manner in filing the PFA
      proceeding. Indeed, both pleadings and depositions reflect the
      fact that Appellee had cause to file the action and acted
      reasonably and without malice in doing so.

1925(a) Opinion, p. 13.

      For the these reasons, the trial court properly granted summary

judgment in this matter. Accordingly, we affirm the order of the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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