J-A17023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BERNIE O’HARE,                                      IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

TRICIA MEZZACAPPA,

                          Appellant                      No. 2325 EDA 2014


                Appeal from the Judgment Entered July 8, 2014
            In the Court of Common Pleas of Northampton County
                 Civil Division at No(s): C-CV-0048-2012-3442


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J. E.:                                FILED JULY 30, 2015

      Tricia Mezzacappa appeals pro se from the judgment entered against

her on July 8, 2014, awarding damages in the amount of $67,140.00, plus

costs, in this defamation action brought by Appellee Bernie O’Hare.             We

affirm.

      The parties became acquainted through their mutual interest in local

politics   and   government    in    the   Lehigh   Valley.    Following   numerous

defamatory statements published by Appellant, including allegations of

sexual and criminal misconduct, Appellee commenced this action by

complaint in April 2012, asserting defamation and false-light invasion of

privacy.

      Appellee filed an amended complaint in January 2013. Appellant did

not file an answer to the amended complaint.            Therefore, in May 2013,
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following proper notice and praecipe, default judgment was entered in favor

of Appellee on liability only. In September 2013, Appellant filed a “Motion

for Relief of Judgment of Non Pros or by Default,” seeking to open the

judgment entered against her.         The trial court denied the motion as

untimely. See Trial Court Order, 09/25/2013.

      A non-jury trial on damages was scheduled for December 2013.

However, Appellee failed to appear for the preliminary call of the trial list,

and the case was removed from the list.

      Thereafter, Appellee filed a praecipe to place the matter again on the

non-jury trial list. Counsel for Appellee certified service of the praecipe upon

Appellant by first-class, regular U.S. Mail.     See Praecipe, Certificate of

Service, 12/24/2013.

      The Northampton County Court Administrator scheduled trial to

commence in March 2014.         The court administrator attempted to serve

notice of the trial list upon Appellant by certified U.S. Mail. Appellant was

unavailable to sign for and receive the certified mail, and it was returned to

the   court   administrator   undelivered.   See    Envelope   (postage   paid,

02/07/2014; delivery attempted & notice left, 02/12/2014; returned as

unclaimed, 03/02/2015).

      In March 2014, Appellant failed to appear for trial, which proceeded in

her absence.       Appellee testified, detailing the impact of Appellant’s

defamatory statements on his employment income, reputation, and physical


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well-being. See generally Notes of Testimony (N.T.), 03/11/2014, at 4-20.

Thereafter, the trial court issued a verdict in favor of Appellee, awarding him

$15,000 in general damages, $7,380 in special damages, and $44,760 in

punitive damages, for a total award of $67,140, plus costs.       See Verdict,

03/28/2014.

       Appellant timely filed post-trial motions, which were denied by the trial

court; and judgment was entered against Appellant.1            See Appellant’s

“Petition for Post-Trial Relief/Review,” 04/07/2014 (requesting the trial court

(1) vacate or modify the verdict against her; or (2) arrest judgment pending

the outcome of a lawsuit filed by Appellant against Appellee; and (3) impose

sanctions against Appellee and his counsel); see also Trial Court Opinion;

07/08/2014; Trial Court Order, 07/08/2014 (denying Appellant’s post-trial

motions and directing the prothonotary to enter judgment). Appellant timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court issued a responsive statement, attaching its opinion, previously issued

July 8, 2014.

       Appellant raises the following issues:

       1. Did the [c]ourt abuse its discretion or make an error of law in
       the calculation of [s]pecial [d]amages, [c]ompensatory
       [d]amages[,] and [p]unitive damages?

____________________________________________


1
  Prior to disposition of her post-trial motions, Appellant filed a notice of
appeal. The appeal was quashed as premature. See Order, Mezzacappa
v. O’Hare, No. 1295 EDA 2014 (Pa. Super. 05/22/2014) (per curiam).



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      2. Did the [c]ourt abuse its discretion or make an error of law
      when it ruled that [c]ertified [m]ail, returned unclaimed was a
      sufficient form of service to notify [Appellant] of time and date of
      trial?

      3. Did the [c]ourt abuse its discertion or make an error of law
      when it failed to grant [Appellant] a new non[-]jury trial as
      requested in post[-]trial motions, because it determined that
      [Appellant] should not have relied on statements and documents
      given to her from court administration staff, confirming that the
      12/16/2013 non-jury trial had been stricken and dismissed?

Appellant’s Brief, at 7.

      Appellant requests that this Court vacate the judgment entered

against her and remand for a new trial. See Appellant’s Brief at 47.

      Our review of the trial court's denial of a new trial is limited to
      determining whether the trial court acted capriciously, abused its
      discretion, or committed an error of law that controlled the
      outcome of the case. In making this determination, we must
      consider whether, viewing the evidence in the light most
      favorable to the verdict winner, a new trial would produce a
      different verdict. Consequently, if there is any support in the
      record for the trial court's decision to deny a new trial, that
      decision must be affirmed.

Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1147–1148 (Pa.

Super. 2013) (quoting Wilson v. Transp. Ins. Co., 889 A.2d 563, 568-569

(Pa. Super. 2005)). Moreover, “[i]t is not the role of an appellate court to

pass on the credibility of witnesses[.]”   Joseph v. Scranton Times L.P.,

959 A.2d 323, 333 (Pa. Super. 2008)

      In her first issue, Appellant challenges the sufficiency of Appellee’s

testimony to establish actual, compensatory damages.              According to

Appellant, Appellee “offered no evidence of actual harm, no witnesses, and


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no corroboration of his income[.]”     Appellant’s Brief at 31.    We disagree.

See, e.g., Joseph, 959 A.2d at 345 (Pa. Super. 2008) (citing Wilson v.

Benjamin, 481 A.2d 328, 333 (Pa. Super. 1984)) (concluding that a

plaintiff’s testimony alone is sufficient to establish compensatory damages).

      Here,   Appellee’s   testimony   established   that   Appellant   published

defamatory statements on the Internet, see N.T. at 9, resulting in loss of

Appellee’s reputation in the community and at his workplace, and causing

him personal humiliation and mental anguish.           Id. at 9-12.      Further,

Appellee’s testimony established that he lost work as an author and

publisher – an actual, pecuniary loss resulting from Appellant’s defamation.

Id. at 12-14.   The trial court found Appellee’s testimony credible, and we

will not disturb this finding on appeal. See Joseph, 959 A.2d at 333; Trial

Court Opinion, 07/08/2014, at 47-48 (discussing Appellee’s testimony). As

we discern no error and no abuse of the court’s discretion in its calculation of

compensatory damages, Appellant is entitled to no relief.

      Appellant also contends that her absence from the trial precludes an

award of punitive damages.       This is because, according to Appellant, a

punitive damages award requires evidence and analysis of a defendant’s

wealth. See Appellant’s Brief at 28-29. No such evidence was introduced;

the trial court conducted no such analysis; and therefore, according to

Appellant, “the award of punitive damages in their entirety” constitutes an




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abuse of the court’s discretion. Id. at 28. Appellant’s contention is without

merit.

      Although a tortfeasor’s wealth is a consideration relevant to the

amount     of   punitive   damages   awarded,   see   Kirkbride   v.   Lisbon

Contractors, Inc., 555 A.2d 800 (Pa. 1989), it is “not a necessary condition

precedent” to their imposition. Vance v. 46 & 2, Inc., 920 A.2d 202, 207

(Pa. Super. 2007).

      Rather, it is well-established that the decision of whether to
      award punitive damages in the first place lies in the [fact-
      finder’s] determination of whether the defendant's conduct was
      outrageous. In other words, punitive damages are awarded only
      for outrageous conduct, that is, for acts done with a bad motive
      or with a reckless indifference to the interests of others.

Id. at 206 (internal quotation marks and citations omitted); see also

Sprague v. Walter, 656 A.2d 890, 922-23 (Pa. Super. 1995) (in the

context of a defamation claim, discussing that an award of punitive damages

requires both common law malice, evidenced by conduct that is outrageous,

malicious and wanton, and actual malice, a constitutional standard requiring

that “publication of an allegedly defamatory statement was made either with

knowledge that the statement was false or with reckless disregard for its

truth or falsity”).

      Here, upon consideration of the evidence presented by Appellee, the

trial court concluded as follows:

      [Appellee’s] evidence established that [Appellant] acted with
      actual malice and common law malice. With respect to many of
      her statements, the [c]ourt found that [Appellant] acted with

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J-A17023-15


       reckless disregard as to the truth or falsity of her statements and
       that her conduct was extreme, outrageous and intended to harm
       [Appellee].

Trial Court Opinion at 50.

       We have examined the evidence. Viewed in the light most favorable

to Appellee, a new trial would not likely result in relief from the imposition of

punitive damages. Appellant’s libelous statements included outrageous and

unsubstantiated allegations of criminal behavior.             See, e.g., N.T. at 8

(summarizing      Appellant’s     statements     that   Appellee   was   a   rapist,   a

pedophile, a burglar, and had attempted to poison Appellant’s pet pig).2

In our view, the evidence supports the trial court’s conclusion. Accordingly,

we discern no abuse of the court’s discretion to impose punitive damages.

       Appellant develops no discernible argument challenging the manner in

which the trial court calculated the amount of punitive damages awarded.

Thus, we need not address the appropriateness of the award in detail. The

purpose of punitive damages is to punish a tortfeasor for outrageous

conduct and to deter such conduct in the future. See Vance, 920 A.2d at

206; Signora v. Liberty Travel, Inc., 886 A.2d 284, 298 (Pa. Super.

2005).    An award “should not be disturbed by the court unless it is so
____________________________________________


2
  Notably, Appellant repeats similar allegations in her brief to this Court.
See, e.g., Appellant’s Brief at 29 (discussing veterinary care for her pig,
“who was beaten and poisoned by [Appellee], and who later suffered a
painful and horrific death in [Appellant’s] own arms”); at 47 (concluding that
Appellee “misunderstood the nature of his friendship with [Appellant] and
later became possessive, sexually inappropriate, explosive[,] and violent”).



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grossly excessive as to offend the conscience of the court and to shock its

sense of justice.”     DiSalle v. P.G. Publ’g Co., 544 A.2d 1345, 1375 (Pa.

Super. 1988); see also Reading Radio, Inc. v. Fink, 833 A.2d 199 (Pa.

Super. 2003); Signora, 886 A.2d at 298.

       Here, the trial court simply doubled the amount of compensatory

damages established by Appellee.3 See Trial Court Opinion at 51 (citing in

support Restatement (2d) of Torts § 908 (suggesting that double or treble

damages may be appropriate)).            In our view, the amount is not “grossly

excessive,” nor does it shock this Court’s sense of justice.       DiSalle, 544

A.2d at 1375. Accordingly, we will not disturb the award.

       In her second issue, Appellant contends that the trial court erred when

it ruled that certified mail, returned unclaimed, was sufficient to notify

Appellant of the time and date of her trial.            Appellant levels several

arguments in support of this contention, each devoid of merit.

       For example, according to Appellant, the trial court relied upon an

incorrect Pennsylvania Rule of Civil Procedure in justification of its ruling,

resulting in a fatal error. See Appellant’s Brief at 36 (quoting from the trial

court’s order announcing the verdict, which includes a typographical error

citing Pa.R.C.P. 404 (“Service Outside the Commonwealth”), rather than

____________________________________________


3
  $15,000 + $7,380 = $22,380 in total compensatory damages; doubling
this amount results in a punitive damages award of $44,760; thus, a total
award of $67,140.



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J-A17023-15


Pa.R.C.P. 440 (“Service of Legal Papers other than Original Process”)); see

also Verdict, 03/28/2014, at 1 n.1. The error highlighted by Appellant was

merely typographical, not substantive.     Moreover, Appellant’s assertion is

clearly frivolous, when considered alongside the trial court’s comprehensive

analysis of Rule 440 in its opinion. See Trial Court Opinion at 28-38.

      Appellant   also   asserts   that   the   Northampton    County     Court

Administration’s reliance upon certified mail, rather than regular mail,

facsimile or email, does not meet the notice requirements of Rule 440. See

Appellant’s Brief at 38.   There is no support for this assertion.       To the

contrary, notice by certified mail meets the requirements of Rule 440. See

Sklar v. Harleysville Ins. Co., 587 A.2d 1386, 1389 (Pa. 1991); see also

Santana Gonzalez v. Att’y Gen of U.S., 506 F.3d 274, 278 (3d Cir. 2007)

(recognizing that a “strong presumption” of effective service arises when the

notice is sent by certified mail, a presumption overcome only by substantial

and probative evidence).

      Finally, Appellant suggests that the trial court erred in declining to

recognize the sufficiency of her excuse for not receiving the certified mail

notice.    According to Appellant, snow and ice around her home made

delivery of mail unreliable.   The trial court did not find Appellant’s excuse

persuasive, see Trial Court Opinion at 34-38, and we will not disturb this

finding.




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       In her third issue, Appellant contends that the trial court erred when it

determined that Appellant was not entitled to rely on statements and

documents given to her by court administration staff suggesting that her

damages trial, originally scheduled for December 2013, had been dismissed.

Appellant develops no discernible legal argument in support of this

contention.    See Appellant’s Brief at 43-46 (suggesting, alternatively, that

(1) her failure to appear for a properly noticed hearing is worthy of relief

because a candidate for public office is entitled to rely on information

provided by the Board of Elections and (2) Northampton County court

personnel intentionally misled Appellant). Accordingly, we deem this issue

waived.4

       In addition, before the Court is Appellee’s Application to Strike

Appellant’s Brief, based upon numerous allegations of error contained in

Appellant’s brief and reproduced record. We decline to do so.

       Application to Strike denied; Judgment affirmed.




____________________________________________


4
  Absent waiver, we observe further that a pro se litigant is not entitled to
special treatment or to rely on court personnel for legal advice. See
Abraham Zion Corp., v. After Six, Inc., 607 A.2d 1105, 1110 (Pa. Super.
1992) (stating that a court has no affirmative duty to walk a pro se litigant
through procedural requirements).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2015




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