Opinion
J-A23040-17 No. 1085 EDA 2017
12-18-2017
ROBERT J. CAVOTO, JR., INTERNATIONAL HEALTH ALLIANCE, INC., CAVOTO CHIROPRACTORS, P.C. Appellants v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., DION ROSENAU SMITH MENZAK & AARON, AND LEE H. ROSENAU
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered May 24, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 050601630 BEFORE: PANELLA, DUBOW, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellants, Robert J. Cavoto, Jr. ("Cavoto"), International Health Alliance, Inc., and Cavoto Chiropractors, P.C., appeal from the judgment entered in favor of Appellees, State Farm Mutual Automobile Insurance Co., Dion Rosenau Smith Menzak & Aaron, and Lee H. Rosenau. Appellants present numerous arguments regarding their claims for defamation, abuse of process, tortious interference, and conspiracy. We affirm.
We note that the trial court, in its initial order dated January 30, 2006, erroneously responded to "Defendants' preliminary objections," when preliminary objections were actually only filed by State Farm while the remainder of Appellees filed a joint "answer with new matter." However, all Appellees contended that Appellants failed to set forth a legally cognizable claim for "abuse of process" and the court agreed by dismissing the claim. Moreover, Appellees did not seek clarification in the trial court and do not raise this error on appeal. Therefore, the issue is waived. Moranko v. Downs Racing LP , 118 A.3d 1111, 1117 n.3. (Pa. Super. 2015) (en banc), appeal denied, 132 A.3d 459 (Pa. 2016)
We adopt the facts and procedural history set forth by the trial court's comprehensive opinion. See Trial Ct. Op., 3/3/17, at 1-3. In this timely appeal, Appellant raises the following nineteen issues for review:
A. Whether the trial court erred in permitting [] Rosenau to testify regarding the Dickman letter because the document was not authenticated?
B. Whether the trial court erred in permitting [] Rosenau to testify regarding the Dickman letter because the document constitutes inadmissible, double hearsay?
C. Whether the trial court erred in permitting the letter to be introduced "as to the date" because such information is also inadmissible hearsay, as well as extremely prejudicial to [Appellants]?
D. Whether the trial court erred in permitting misleading characterization(s) regarding the March letter during closing, as well as further mention of the date?
E. Whether the trial court erred in responding to the jury's request to see the March 2004 Letter and the request to hear testimony regarding the document?
F. Whether the trial court erred in permitting, and then refusing to strike, [] Rosenau's testimony regarding his alleged 2004 billing records?
G. Whether the trial court erred in refusing to charge the jury with Pennsylvania Standard Jury Instruction § 5.30 for
adverse inference, due to [] Rosenau's failure to produce the 2004 billing records?
H. Whether the trial court erred in dismissing [Appellants'] abuse of process claims?
I. Whether the trial court erred in excluding ample and significant evidence on the basis of judicial privilege?
J. Whether the trial court erred in excluding statements not specifically pled in the amended complaint when such statements constitute acts of tortious interference and conspiracy?
K. Whether the trial court erred in excluding State Farm's Midtown memo and the testimony of Mr. John Smith?
L. Whether the trial court erred in excluding the testimony of Ms. J'Amy Kluender?
M. Whether the trial court erred in excluding the testimony of Mr. Gary Heslin regarding Mr. Fred Smith's comments about State Farm's $1,000,000 threshold and "hardball" tactics?
N. Whether the trial court erred in excluding the testimony of Mr. Robert Datner?
O. Whether, based solely on the admitted evidence, the [t]rial [c]ourt erred by granting non-suit in favor of State Farm on the count of Defamation when State Farm's defamation was established through the principles of agency?
P. Whether, based solely on the admitted evidence, the trial court erred by granting non-suit in favor of all [Appellees] on the count of conspiracy?
Q. Whether, based solely on the admitted evidence, the trial court erred by granting non-suit in favor of Mr. Rosenau on the count of tortious interference when an act of defamation also constitutes tortious interference?Appellants' Brief at 3.
R. Whether the trial court erred as a matter of law by granting non-suit when improperly excluded evidence would have established a prima facie cause of action on all Counts?
S. Whether, based on the above-listed errors, th[is] Court should remove non-suit and grant [Appellants] a new trial on all counts?
Appellants have abandoned their claim that the trial court erred in refusing an adverse inference jury instruction by failing to develop the claim in their brief.
We note that Appellants' brief violates several rules of appellate procedure. Appellants' brief exceeds thirty pages and does not contain a certification of compliance with the 14,000 word count limit. See Pa.R.A.P. 2135(a). Nevertheless, we decline to quash. See PHH Mortg. Corp. v. Powell , 100 A.3d 611, 615 (Pa. Super. 2014) (refusing to quash appeal despite numerous violations of appellate briefing rules).
Appellants' first five issues concern the admission of a letter ("Dickman letter") which was purportedly written by Appellants' former attorney detailing an alleged defamatory conversation. Appellants claim the letter was not properly authenticated, contained statements constituting hearsay, and was unduly prejudicial. Id. at 22-26. Appellants also assert that Appellees improperly discussed the letter and mischaracterized the letter's contents during closing argument. Id. at 26. Appellant further claims that the trial court improperly refused the jury's request to see a copy of the letter during deliberations or to have testimony regarding the letter reread during deliberations. Id. at 27.
Appellants' next issue focuses on the trial court's admission of billing records. They argue that the trial court improperly permitted Appellee Rosenau to testify regarding his billing records when those records were not introduced into evidence. Id. at 27-28.
Appellants, in their eighth issue, assert that the trial court erred by dismissing, pre-trial, their count for abuse of process for failure to state a legally cognizable cause of action. They argue that they sufficiently pleaded allegations that Appellees utilized discovery and depositions, in other unrelated cases, in an attempt to harm Appellants. Id. at 29-32.
In their ninth issue, Appellants contend that the trial court abused its discretion by excluding testimony based on judicial privilege. Specifically, they assert that the statements in question were made outside the scope of the privilege during depositions unrelated to the instant case. Id. at 32-34.
In their tenth issue, Appellants argue that the trial court erred by refusing to consider alleged defamatory statements not specifically pled in their amended complaint. Id. at 44-47. Appellants allege they adequately asserted their claims for tortious interference with an existing and prospective business relationship and civil conspiracy, and that defamatory statements uncovered during discovery should have been admitted at trial. Id. at 46-47.
Appellants' eleventh issue challenges the trial court's ruling that excluded evidence arising after the date of Appellants' complaint in August 2015. They argue that a memo, which purportedly detailed State Farm's use of "shadow discovery," was admissible as evidence of a bad act under Pa.R.E. 404(b). Id. at 48. Additionally, Appellants assert that testimony from an individual who stopped patients referring to Appellant Cavoto should have been admitted to show causation and damages. Id. at 49-50.
Appellants next three issues generally object to the trial court's decision to decline to admit testimony from former employees of State Farm and other individuals who purportedly had knowledge of State Farm's tactics. See id. at 50-56.
Finally, in their last five issues, Appellants contend that the trial court erred by granting non-suit regarding their claims for defamation as to Appellee State Farm, and for conspiracy and tortious interference against all Appellees. Id. at 56-65. Appellants argue that trial evidence did not support the trial court's ruling, and that the excluded evidence would have been sufficient to support the above causes of action. Id. at 56-65.
After a thorough review of the record, the briefs of the parties, the applicable law, and the forty-page opinion of the Honorable Judge Gary Glazer, we conclude the trial court's opinion comprehensively discusses and properly disposes of the issues presented. See Trial Ct. Op. at 3-40 (finding that (1) Appellants failed to preserve any challenge to the authenticity of the Dickman letter; (2) the Dickman letter was properly admitted as an admission of a party opponent for the limited purpose of establishing the date of an alleged conversation for purposes of the statute of limitations; (3) the Dickman letter was probative for purposes of the statute of limitations; (4) the jury was properly prohibited from viewing the entire contents of the Dickman letter when it was admitted for only a limited purpose; (5) the court acted within its purview when allowing the jury to rehear portions of testimony regarding the Dickman letter during deliberations; (6) Appellee Rosenau properly refreshed his recollection by reviewing his billing records prior to trial; (7) Appellants failed to sustain an abuse of process claim because they could not establish that Appellees attempted to use "shadow discovery tactics" for the sole purpose of causing harm to Appellants; (8) the judicial privilege precluded all testimony which concerned statements made during the course of judicial proceedings, such as depositions; (9) Appellants failed to plead each defamatory statement ultimately alleged with sufficient particularity; (10) evidence occurring after the commission of the lawsuit was properly excluded as unduly prejudicial with minimal probative value; (11) testimony from former employees of State Farm was too attenuated and prejudicial to be properly admitted; (12) Appellants' tortious interference claim failed because Appellants could not prove that either a contractual relationship existed or that the one possible incidence of defamation which was not barred by judicial privilege was not within the one-year statute of limitations; (13) insufficient evidence supported Appellants' claims for tortious interference, defamation, and conspiracy and, therefore, nonsuit was proper). Accordingly, we affirm on the basis of the trial court's opinion.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/18/2017
On October 23, 2017, Appellants filed a post-submission communication, after this Court had conducted oral argument. As noted in Appellees' motion to quash Appellants' submission, Appellants violated Pa.R.A.P. 2501(a) which mandates that "[a]fter the argument of a case had been submitted, no brief, memorandum or letter relating to the case shall be presented or submitted, either directly or indirectly, to the court or any judge thereof, except upon application or when expressly allowed at bar at the time of the argument." Pa.R.A.P. 2501(a). Accordingly, we quash Appellants' post-submission communication but note that, in any event, the communication merely reiterates arguments Appellants already set forth both during argument and within their appellate brief. However, we do not find the communication to be "dilatory, obdurate or vexatious," as urged by Appellees. See Pa.R.A.P. 2744 Thus, we do not conclude that the award of counsel fees is appropriate in this case. See id. (stating an appellate court may award a reasonable counsel fee where "it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious"). Additionally, Appellees have filed a motion to seal an exhibit contained in Appellants' answer to Appellees' motion to quash. We grant the motion to seal and direct the Prothonotary of this Court to seal Appellant's "Brief in Opposition to Appelle's Motion to Strike." --------
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