Opinion
No. 1053 C.D. 2012
10-25-2012
Michael Selig, M.D., FACC and Dr. Helicopter, LLC, Appellants v. South Whitehall Township and Maria Mullane
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Dr. Helicopter, LLC, and Michael Selig, M.D. (collectively "Dr. Selig") appeal pro se from the order of the Court of Common Pleas of Lehigh County (trial court) which sustained the Preliminary Objections of South Whitehall Township (Township) and Maria Mullane, Esquire (Attorney Mullane) and dismissed Dr. Selig's "Complaint for Defamation" with prejudice.
On September 22, 2011, Dr. Selig filed a pro se "Complaint for Defamation" and asserted causes of action for defamation, "false light invasion of privacy", and tortious interference with Dr. Selig's business plan. Dr. Selig named the Township and its counsel, Attorney Maria Mullane, as Defendants.
By way of background, the averments of the Complaint for Defamation arose from Dr. Selig's 2006 application for a special use exception for a heliport on property owned by Dr. Selig and his then-wife, Gail Selig (Mrs. Selig). The South Whitehall Township Zoning Hearing Board (Board) initially approved the application and granted Dr. Selig the special use exception. Mrs. Selig subsequently petitioned for permission to appeal the Board's decision nunc pro tunc. She asserted that she co-owned the property with Dr. Selig as tenants in the entireties and that she never consented to the request for a special exception to operate a heliport. She claimed that Dr. Selig concealed her ownership interest from the Board. Following a hearing on April 11, 2007, the trial court found that Dr. Selig had falsely represented to the Board that he was sole owner of the property and reversed the Board's decision. In a Memorandum Opinion filed on December 9, 2011, this Court affirmed. Selig v. South Whitehall Township Zoning Hearing Board, 244 C.D. 2011 (Filed December 9, 2011, Pa. Cmwlth.).
The property was marital property in a pending divorce action at the time Dr. Selig applied for the special use exception.
In his pro se Complaint for Defamation, Dr. Selig claimed that Attorney Mullane, acting for the Township, made defamatory statements about him at the April 11, 2007, hearing by stating that he misrepresented his ownership of the property and redirected hearing notices away from the family home. Dr. Selig asserted that Attorney Mullane damaged his reputation and that her statements led to the denial of permission to operate the heliport and damaged his business plans for Dr. Helicopter. He maintained the Township is vicariously liable for the actions of Attorney Mullane.
On October 17, 2011, the Township and Attorney Mullane filed Preliminary Objections to Dr. Selig's pro se Complaint for Defamation based, in part, on: (1) improper service on Attorney Mullane; (2) failure to state claims for defamation or tortious interference with contract; (3) the applicable statute of limitations; (4) the doctrine of sovereign immunity; and (5) the doctrine of judicial privilege.
Following argument, the trial court sustained the preliminary objections and dismissed the Complaint for Defamation with prejudice.
On appeal, Dr. Selig raises the following issues:
When reviewing a trial court's order sustaining preliminary objections in the nature of a demurrer, this Court's standard of review is de novo and our scope of review is plenary. Mazur v. Trinity Area School District, 599 Pa. 232, 240, 961 A.2d 96, 101 (2008). Preliminary objections may be sustained when, based on the facts pleaded, it is clear that the complainant will be unable to establish a right to relief. Id. This Court must accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible therefrom. Id. at 241, 961 A.2d at 101. However, this Court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Pennsylvania Department of Banking v. NCAS of Delaware, LLC, 995 A.2d 422, 433 n. 13 (Pa. Cmwlth. 2010).
In his "Statement of Questions Involved" Dr. Selig also appears to take issue with a number of factual statements made by the trial court. However, as the trial court noted, those issues have no bearing on the trial court's decision to sustain the Township's and Attorney Mullane's Preliminary Objections. As such, they are not proper subjects for appellate review. --------
1. Whether the trial court properly sustained the Preliminary Objections based on improper service where there was no original process ever effected on Attorney Mullane?
2. Whether the trial court properly sustained the Preliminary Objections based on failure to conform to the law where the caption and notice to defend did not list Attorney Mullane as a Defendant?
3. Whether the trial court properly sustained the Preliminary Objection in the nature of a demurrer to Dr. Selig's defamation claim?
4. Whether the trial court properly sustained the Preliminary Objection in the nature of a demurrer to Dr. Selig's tortious interference with a business plan?
5. Whether the trial court properly sustained the Preliminary Objections in the nature of a demurrer to the defamation claim based on the applicable statute of limitations?
6. Whether the trial court properly determined Dr. Selig's claims were barred by sovereign immunity?
7. Whether the trial court properly determined that Attorney Mullane was entitled to immunity where any alleged defamatory statement was made in her capacity as Solicitor for the Board and in the course of judicial proceedings?
This Court has thoroughly reviewed the record, the briefs and cases cited therein and the trial court's opinion. This Court notes that it is also familiar with the background underlying these matters as evidenced in its previous Memorandum Opinion, filed December 9, 2011, at 244 C.D. 2011. The trial court's opinion is thorough and the trial court explained in detail the reasons why each count of Dr. Selig's Complaint for Defamation must fail. The trial court ably disposed of each issue and applied sound legal reasoning. Accordingly, this Court adopts in full the Opinion of the trial court and affirms on the basis of the Opinion at Michael Selig , M.D., FACC and Dr. Helicopter, LLC, v. South Whitehall Township and Maria Mullane , Court of Common Pleas of Lehigh County, No. 2011-C-3383 (filed May 2, 2012).
The trial court is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 25th day of October, 2012, the Order of the Court of Common Pleas of Lehigh County in the above-captioned matter is hereby affirmed.
/s/_________
BERNARD L. McGINLEY, Judge