Opinion
No. 1894 C.D. 2012
12-12-2013
Nicholas Fera, Jr., Appellant v. Baldwin Borough, a municipality, John Conley, member of Council, David Depretis, member of Council, Michael Ducker, member of Council, Michael E. Fetsko, Jr., member of Council, John Ferris, Jr., member of Council, Francis Scott, member of Council, Baldwin Police Department, Christopher T. Kelly, an individual and in his official capacity of Chief of Police
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
On or about July 21, 2010, Nicholas Fera, Jr., filed a defamation action with the Court of Common Pleas of Allegheny County (trial court) against: (1) Baldwin Borough (Borough); (2) John Conley, David Depretis, Michael Ducker, Michael E. Fetsko, Jr., John Ferris, Jr., and Francis Scott, in their official capacity as Borough Council Members (collectively, "Borough Council Members"); and (3) Christopher T. Kelly, as an individual and in his official capacity as Chief of Police of the Borough. Following the completion of discovery, Chief Kelly filed a motion for summary judgment. Thereafter, the Borough and Borough Council Members filed a joint motion for summary judgment. By separate orders dated September 4, 2012, the trial court granted the motions for summary judgment and dismissed, with prejudice, Chief Kelly as a party to the Complaint and dismissed, with prejudice, all claims against the Borough and Borough Council Members. Fera now appeals to this Court from the trial court's Orders and, in support, argues that the trial court erred by relying on the oral deposition testimony of a moving party and an alleged agent of a moving party to determine that there was no genuine issue of material fact. Discerning no error, we affirm.
Fera filed an initial complaint with the trial court on November 28, 2006 against the above-captioned defendants alleging violations of his Federal constitutional rights pursuant to 42 U.S.C. § 1983 and a state law claim for defamation. Fera's action was removed to federal court by Chief Kelly, with the consent of the Borough and Borough Council Members, on January 8, 2007. After the parties engaged in discovery, the federal court dismissed Fera's claims based on Section 1983 and remanded Fera's common law defamation claim to the trial court on October 18, 2007. Preliminary objections were filed, which led to Fera filing a second amended complaint on July 21, 2010. In the second amended complaint, without amending the caption, Fera includes allegations against Borough Council Members in both their official and individual capacities, but does not include any allegations against the Baldwin Police Department. Following the closing of the pleadings, the parties engaged in discovery after which the motions for summary judgment, at issue in this appeal, were filed.
By order dated September 17, 2012, the trial court denied Fera's motion for reconsideration of the trial court's September 4, 2012 Orders.
The undisputed facts in this matter are as follows. Fera was elected to Borough Council in 2001, and he commenced his term in January 2002. At a budget workshop meeting of Borough Council held on October 25, 2004, the members discussed unlicensed gaming devices and it was made known by a Council member that an owner of a local store was only claiming four licensed machines although he possessed a total of seven machines. Borough Council Members decided to look into the number of machines actually owned by the local store owner and that every establishment in the Borough that had gaming machines should be checked. On October 26, 2004, Fera met with the local store owner and Fera told the owner to get permits for any unlicensed machines. The next day, Chief Kelly called Fera and requested that Fera come to the police station. When Fera arrived at the police station, Chief Kelly informed him that the local store owner stated that Fera had told the owner to hide his unlicensed gaming machines. Despite Fera's denial, Chief Kelly informed Fera that criminal charges could be filed against him for warning the local store owner that the police were investigating unlicensed gaming machines in the Borough. Fera asked Chief Kelly what he should do, Chief Kelly responded that Fera should resign his Council seat, and Fera refused. Chief Kelly asked Fera if there was any political figure with whom he would like to consult, and Fera responded in the affirmative. The political figure advised Fera over the phone to resign. At the request of Fera, Chief Kelly typed a resignation letter which Fera signed. Chief Kelly also prepared a police report regarding the local store owner's possession of illegal gaming machines. In that report, dated October 27, 2004, Chief Kelly detailed his conversation with Fera regarding Fera's contact with the local store owner and the store owner's allegation that Fera informed the owner to hide any illegal gaming machines. Fera was never criminally charged as a result of the store owner's allegation.
Although the trial court filed an opinion in support of its Orders granting the motions for summary judgment, it did not set forth any facts; therefore, the relevant and undisputed facts are taken from the Complaint and the parties' briefs.
After Fera's resignation was presented to Borough Council, he unsuccessfully, through counsel, attempted to withdraw his resignation. On November 14, 2004, Fera was replaced on the Borough Council when a new member was appointed.
Borough Council met on January 24, 2006, and the meeting was recorded onto a DVD. Fera addressed the Borough Council Members and questioned them regarding his situation; however, he was informed by the Borough's solicitor that, because there was pending litigation, his questions would not be addressed. Gail Dobson Mikush, the Borough's tax collector, then addressed Borough Council and, while at the lectern, she asked Fera why he resigned. Mikush then remarked that Fera had engaged in unethical and possibly criminal conduct. Mikush was then stopped from speaking by someone sitting at the meeting table.
Based on the foregoing facts, Fera alleged the following in his Complaint to the trial court. Chief Kelly, Borough, and Borough Council Members (collectively, "Defendants") used Mikush as their mouthpiece to destroy his reputation and political career. (Complaint ¶ 23.) Chief Kelly "published" the police report to Mikush, who was not otherwise privileged to share in the report's contents. (Complaint ¶ 18.) Chief Kelly showed Mikush the police report with the intention that she would disseminate its contents to the general public, causing Fera harm. (Complaint ¶ 19.) Borough and Borough Council Members, as Chief Kelly's employers, encouraged his publication of the police report to Mikush "as it was intended for her to take such action as to damage" Fera's reputation. (Complaint ¶ 20.) Defendants, acting in conjunction with each other, used Mikush to destroy Fera's reputation and political career by having Chief Kelly accuse him of criminal behavior that would permit Chief Kelly, as requested by Chief Kelly's political allies, Borough, and Borough Council Members, to demand that Fera resign his Council seat immediately. (Complaint ¶ 23.) After Fera's resignation, Defendants employed Mikush to publish to the general public confidential information about Fera, which caused him harm. (Complaint ¶ 24.) Chief Kelly advised Fera that his resignation letter would be used by Borough Council Members and Mikush should Fera decide to run for future office. (Complaint ¶ 26.) Fera lost both the 2007 and 2009 primary elections due to Defendants' actions. (Complaint ¶¶ 46, 48.)
Fera alleges further that, in addition to her defamatory comments at the January 24, 2006 Borough Council meeting, in a letter dated May 11, 2007 with the heading "Urgent Message" and addressed to Borough democrats, Mikush stated that Fera: (1) resigned voluntary; (2) violated his oath of office; (3) could have been charged criminally with obstruction of justice; and (4) had cost the Borough's taxpayers over $25,000 in litigation costs. (Complaint ¶ 51(a).) Mikush also referred to the October 27, 2004 police report in the May 11, 2007 letter. (Complaint ¶ 51(a).) Mikush authored a letter to the South Hills Record Newspaper on April 26, 2007 and, based upon this letter's similarity to an article in the Taxpayer Gazette, Fera alleges that Mikush also authored the Taxpayer Gazette article. (Complaint ¶ 51(b).) This article states that Fera: (1) hindered a police investigation; (2) committed a criminal act; (3) violated state ethics laws; and (4) cost the Borough's taxpayers $16,000 in litigation costs. (Complaint ¶ 51(b).) The statements contained in Mikush's writings were either written or spoken about Fera by Mikush, Chief Kelly, and Borough Council Members. (Complaint ¶ 52.) Each of these statements were heard and understood for their defamatory meaning by Borough residents; therefore, as many as 2,121 of them decided to vote against Fera in primary elections for Borough Council between 2007 and 2009. (Complaint ¶ 49.) Fera alleges that he "was caused to suffer damages and injury as a direct and proximate result of the Defendants' wrongful acts of defaming him." (Complaint ¶ 54.)
After the close of discovery, Chief Kelly filed a motion for summary judgment alleging that Fera failed to produce sufficient evidence to support a defamation claim and that no genuine issue of material fact existed as to one or more essential elements of Fera's claims. (Kelly's Motion for Summary Judgment at 2-3, R.R. at 38a-39a.) Specifically, Chief Kelly alleged that there was no genuine issue of material fact as to whether Chief Kelly provided the police report or the details thereof to Mikush because discovery revealed that Mikush relied on sources other than Chief Kelly in making her statements to the public regarding Fera. (Kelly's Br. in Support of Motion for Summary Judgment at 12-22, R.R. at 51a-61a.) Chief Kelly asserted that Fera did not allege that he directly published any defamatory material pertaining to Fera to the public but, rather, Fera alleges that Chief Kelly provided Mikush with a copy of the police report with the intention that Mikush disseminate its contents to the general public. (Kelly's Br. in Support of Motion for Summary Judgment at 13, R.R. at 52a.) Chief Kelly cited Fera's own testimony to support his contention that Fera failed to support the claim that Chief Kelly directed or procured Mikush to publish defamatory statements about Fera. (Kelly's Br. in Support of Motion for Summary Judgment at 14, R.R. at 53a; Ex. A - Fera's Dep. at 106-07, R.R. at 119a.) Chief Kelly further cited Mikush's deposition testimony to show that he did not provide Mikush with a copy of the police report or any information regarding Fera's involvement with the local store owner and/or the police investigation. (Kelly's Br. in Support of Motion for Summary Judgment at 14-20, R.R. at 53a-59a; Ex. D - Mikush's Dep. at 7-8, 11-21, 25-26, R.R. at 146a-51a.)
Borough and Borough Council Members also filed a motion for summary judgment alleging that: (1) Fera failed to produce any evidence sufficient to support his defamation claims; (2) Fera's claims were barred by what is commonly referred to as the Political Subdivision Tort Claims Act, 42 Pa. C.S. §§ 8541-8550; and (3) there is no genuine issue of material fact. (Borough and Borough Council Members Motion for Summary Judgment, R.R. at 162a.) Borough and Borough Council Members asserted that Fera failed to show that the alleged defamatory material was published by them or Mikush as their agent. (Borough and Borough Council Members Br. in Support of Motion for Summary Judgment, R.R. at 172a-78a.) As support for its motion for summary judgment, the Borough and Borough Council Members cite to the deposition testimony of Mikush and Fera. (Borough and Borough Council Members Br. in Support of Motion for Summary Judgment, R.R. at 172a-78a.)
By Orders dated September 4, 2012, the trial court granted the motions for summary judgment. The trial court issued a brief opinion in support of its Orders, essentially concluding that Fera failed to prove that an agency relationship existed between Mikush and Defendants. (Trial Ct. Op. at 3.) The trial court further pointed out that Fera did not name Mikush as a defendant. (Trial Ct. Op. at 3.) This appeal followed.
Our standard of review of a trial court's order granting or denying summary judgment is de novo. "Summary judgment is only appropriate when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law." Green Valley Dry Cleaners, Inc. v. Westmoreland County Industrial Development Corporation, 832 A.2d 1143, 1150 n.5 (Pa. Cmwlth. 2003).
In support of this appeal, Fera raises the following issues: (1) whether the trial court erred by granting summary judgment and dismissing all parties and claims when it relied on the oral testimony of a moving party who denied an averment to determine that there was no genuine issue of material fact; and (2) whether the trial court erred by relying on the oral deposition of an alleged agent of a moving party, an oral deposition that was taken in the absence of both Fera and his counsel, to determine that there was no genuine issue of material fact.
Section 8343 of the Uniform Single Publication Act governs the respective burdens of proof in a defamation action and provides as follows:
(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.
(b) Burden of defendant.--In an action for defamation, the defendant has the burden of proving, when the issue is properly raised:42 Pa. C.S. § 8343. Pennsylvania Rule of Civil Procedure 1035.2(1) provides that a party may move for summary judgment "whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report." Pa. R.C.P. No. 1035.2(1). A material fact "is one that directly affects the outcome of the case." Fortney v. Callenberger, 801 A.2d 594, 597 (Pa. Super. 2002).
(1) The truth of the defamatory communication.
(2) The privileged character of the occasion on which it was published.
(3) The character of the subject matter of defamatory comment as of public concern.
In Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 237, 163 A. 523, 524 (1932), our Supreme Court held that testimonial, not documentary, affidavits of the moving party or his witnesses, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment since the credibility of the testimony is still a matter for the jury. Our Superior Court has set forth the three-step analysis our appellate courts follow to determine whether the Nanty-Glo rule precludes a grant of summary judgment:
Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the jury by resolving any material issues of fact.Dudley v. USX Corporation, 606 A.2d 916, 920 (Pa. Super. 1992). If the plaintiff establishes a prima facie case, there is an exception to the Nanty-Glo rule that permits the use of oral deposition testimony to support a grant of summary judgment "where the moving party supports the motion by using admissions of the opposing party or the opposing party's own witnesses." Sherman v. Franklin Regional Medical Center, 660 A.2d 1370, 1372 (Pa. Super. 1995). Such admissions are defined as:
Confessions, concessions or voluntary acknowledgments made by a party of the existence of certain facts. More accurately regarded, they are statements by a party, or someone identified with him in legal interest, of the existence of a fact which is relevant to the cause of his adversary.
Id.
Here, Fera argues that the credibility of witnesses is a determination for the jury and, therefore, necessarily creates a genuine issue of material fact. Fera asserts that, in this matter, the trial court relied entirely upon deposition testimony to establish the absence of a genuine issue of material fact. Fera contends that, when granting summary judgment, the trial court assumed that Chief Kelly's deposition testimony was true, which flies in the face of the Nanty-Glo rule. Fera contends that Chief Kelly's testimony that he was Mikush's "whipping boy" could be understood to possibly refer to an agency relationship. (See Kelly's Dep. at 80, R.R. at 428a.) Fera argues that the trial court's conclusion that Chief Kelly's statement meant that Mikush was critical of Chief Kelly ignores that Mikush was not critical of Chief Kelly in her May 11, 2007 Urgent Message. Instead, Mikush extolls Chief Kelly in this writing by stating that the undermining of Chief Kelly is disrespectful and disgraceful. (May 11, 2007 "Urgent Message," R.R. at 88a-89a.) Fera contends that Mikush further indicates in the Urgent Message that a police report was filed, what crimes Fera could have been charged with on the basis of the police report, and that the report was a public record. (May 11, 2007 "Urgent Message," R.R. at 88a-89a.) However, in her deposition, she stated that she had never seen the police report. (Mikush's Dep. at 16, R.R. at 386a.) Fera asserts that this statement contradicts her writings, resulting in this case not being clear and free from doubt. As such, there is a genuine issue of material fact. Fera argues further that Mikush's extolling of Chief Kelly in the Urgent Message could be interpreted by the fact finder as a public way of thanking Chief Kelly for providing the police report described therein. Therefore, Fera contends, the trial court erred by granting the motions for summary judgment.
Chief Kelly's entire deposition is not in the record.
In response, Defendants argue that Fera failed to establish a prima facie case of defamation, and the trial court's Orders were not contrary to the Nanty-Glo rule. Fera failed to produce evidence to support that Defendants published the defamatory material, either directly or indirectly through Mikush. Thus, Defendants contend, to survive summary judgment Fera had to show that Mikush was an agent of the Defendants or that Defendants otherwise directed or procured Mikush to have the defamatory statements published. Defendants assert that, in his own brief, Fera admits that Mikush is merely an "alleged agent" and offers no evidence that she was, in fact, an agent for purposes of publishing the defamatory material. Defendants contend further that Fera's own deposition testimony contradicts his allegations that Defendants published or procured the publication of material defaming Fera. Finally, Defendants argue that the trial court's partial reliance on Chief Kelly's deposition testimony did not violate the Nanty-Glo rule because it does not apply here since Fera failed to establish a prima facie case of defamation by Chief Kelly. In addition, Defendants argue, consideration of a plaintiff's own admissions in granting summary judgment does not run afoul of the Nanty-Glo rule.
Upon review of the record in this matter, we conclude that the trial court did not err by granting Defendants' motions for summary judgment. Defendants are correct that Fera failed to produce sufficient evidence to establish a prima facie case for defamation. Specifically, Fera did not show that Defendants directly or indirectly published defamatory material or procured the publication through Mikush as their agent. There is no dispute that Mikush spoke, authored, or published a majority of the material that Fera alleged is defamatory; however, Fera did not offer any facts showing that Defendants engaged Mikush to disseminate the alleged defamatory material. For example, with regard to the unsigned Taxpayer Gazette article, Fera testified that he had no evidence to prove Defendants were involved in authoring the article and that he could not say who authored the article. (Fera's Dep. at 118, 121, 133-34, R.R. at 316a, 319a, 331a-32a.)
While Fera initially implicated Councilman Scott as the author of the Taxpayer Gazette article, Fera later admitted that he could not identify the author. (Fera's Dep. at 121, 133-34, R.R. at 319a, 331a-32a.) Fera further testified that he has no personal knowledge that any of the Borough Council Members were involved in authoring the Taxpayer Gazette article and stated that he believed Mikush was the "ring leader of these people." (Fera's Dep. at 117-19, R.R. at 315a-17a.) Fera testified that his belief that Councilmen Ferris and Ducker may have disclosed facts related to the relevant investigation and police report is based upon Fera's belief that Councilman Ferris has a big mouth and is prone to lying. (Fera's Dep. at 107, R.R. at 305a.)
Fera also testified that he did not believe that Chief Kelly disclosed to any person any of the facts of the investigation into the local store owner's lack of permits for the gambling devices. (Fera's Dep. at 106-07, R.R. at 304a-05a.) Instead, Fera believed that Mikush disclosed the facts of the investigation and that she obtained those facts because she had a close relationship with Chief Kelly. (Fera's Dep. at 86, 107, R.R. at 284a, 305a.) Fera believed that Mikush and Chief Kelly were close because she wrote positive letters to editors about Chief Kelly. (Fera's Dep. at 86, R.R. at 284a.) Chief Kelly's statement that he was Mikush's whipping boy is the only evidence that Fera cites as support that Mikush was an agent of Defendants, and Fera's contentions in this regard appear to be all based on supposition. Fera had no other evidence to prove that Chief Kelly engaged Mikush to disseminate defamatory material about him to the public. Overall, Fera's testimony is replete with his own beliefs, not supported facts, and his repeated statements that he could not explain how he knew that Defendants were involved in defaming him or in removing him from office.
In short, Fera is relying upon circumstantial evidence to make out a prima facia case for defamation absent direct record evidence to support his contentions that Defendants were responsible for the publication of material defaming him. We note that Fera does not directly address in this appeal what evidence he presented to establish a prima facie case for defamation. Instead, Fera focuses on his assertion that the trial court improperly relied upon the oral deposition testimony of Chief Kelly and Mikush for finding that there was no genuine issue of material fact. However, as set forth above, Fera's own admissions support the granting of the motions for summary judgment.
Next, Fera contends that Mikush's deposition testimony was taken in the absence of both Fera and his counsel; therefore, Fera was denied the opportunity to cross-examine Mikush to test her credibility. Fera contends that this further undermines any potential reliability of Mikush's testimony.
In response, Defendants argue that Fera has waived this issue by failing to raise it before the trial court. Our review of the record reveals that Defendants are correct. Fera did not raise this issue in his responses to the motions for summary judgment or in his brief in opposition. (See Fera's Responses and Brief in Opposition to Motions for Summary Judgments, R.R. at 424a-47a.) "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pennsylvania Rule of Appellate Procedure 302(a). Even if this issue had been preserved, Fera would not prevail since the record shows that he was not denied the opportunity to cross-examine Mikush.
The supplemental record shows that a notice of deposition scheduling Mikush's deposition for September 15, 2011 was sent to all counsel of record, including Fera's then counsel of record, by letter dated August 31, 2011. (Letter from Borough's and Borough Council Members' Counsel to Fera's Counsel (August 31, 2011), S.R.R. at 41b.) On September 13, 2011, Fera's counsel notified Defendants' counsel by email that, because Fera could not attend, Fera requested that the deposition be cancelled. (Email from Fera's Counsel to Defendants' Counsel (September 13, 2011), S.R.R. at 46b.) Thereafter, in a series of emails, Defendants' counsel objected to the cancellation of Mikush's deposition because the parties had been trying for months to schedule the deposition. (Emails between Counsel (September 13-14, 2011), S.R.R. at 45b.) In response, Fera's counsel recognized the length of time that the parties had been trying to schedule the deposition and the fact that this matter had been pending for years. (Email from Fera's Counsel to Defendants' Counsel (September 14, 2011), S.R.R. at 45b.) Fera's counsel advised Defendants' counsel that Fera instructed counsel not to attend Mikush's deposition due to Fera's unavailability and that, if Mikush's deposition proceeded, Fera and counsel were reserving the right to depose Mikush in the future pursuant to Fera's instructions. (Email from Fera's Counsel to Defendants' Counsel (September 14, 2011), S.R.R. at 45b.) Mikush's deposition scheduled for September 15, 2011 was then cancelled and Defendants' counsel attempted to obtain mutual dates from Fera's counsel in order to reschedule Mikush's deposition. (Emails between Counsel (September 14, 2011-November 15, 2011), S.R.R. at 44b.) By letter dated January 6, 2012, Chief Kelly's counsel requested that Fera's counsel of record, and apparent new counsel, advise her as to the status of Fera's representation in this matter. (Letter from Chief Kelly's Counsel to Fera's Counsel and Borough's and Borough Council Members' Counsel (January 6, 2012), S.R.R. at 47b.) By letter dated February 27, 2012, Chief Kelly's counsel sent a notice of deposition to Fera's counsel of record, who she believed was Fera's new counsel, scheduling Mikush's deposition for April 4, 2012. (Letter from Chief Kelly's Counsel to Fera's Counsel and Borough's and Borough Council Members' Counsel (February 27, 2012), S.R.R. at 48b; Notice of Deposition, S.R.R. at 49b-51b.)
By Order dated April 15, 2013, the trial court granted Defendants' motion to supplement the record, which record was received by this Court on June 5, 2013.
Rule 4007.1 of the Pennsylvania Rules of Civil Procedure requires that a party wishing to take the deposition of any person provide reasonable written notice to all parties to an action. Pa. R.C.P. No. 4007.1.
Accordingly, the record shows that Fera and his counsel of record received proper notice of Mikush's deposition that was scheduled for and taken on April 4, 2012. Moreover, Fera does not contend in this appeal that he or his counsel of record did not receive proper notice of Mikush's deposition or that he sought a protective order. As such, Fera's contention that he was denied the opportunity to cross-examine Mikush to test her credibility is not supported by the record.
We note that Fera's counsel of record filed a "Motion to Withdraw as Counsel" with this Court on November 16, 2012 and, by Order dated November 19, 2012, we granted counsel's motion. Fera's current counsel filed an entry of appearance with this Court on March 11, 2013.
Rule 4012 of the Pennsylvania Rules of Civil Procedure provides that a party, upon motion, may seek, upon good cause shown, a protective order where the party objects to the taking of a deposition. Pa. R.C.P. No. 4012. --------
For the foregoing reasons, the trial court's Orders granting Defendants' motions for summary judgment are affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, December 12, 2013, the Orders of the Court of Common Pleas of Allegheny County, dated September 4, 2012, entered in the above-captioned matter are AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge