Bush, M. v. Lawrence, T. ( 2019 )

J-S74016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARY BUSH IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
THOMAS LAWRENCE
Appellee No. 1713 EDA 2018
Appeal from the Order Entered April 26, 2018
In the Court of Common Pleas of Chester County
Civil Division at No: 2016-06184-TT
BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 11, 2019
Appellant, Mary Bush, appeals pro se from the April 26, 2018 order
sustaining preliminary objections to her third amended complaint and
dismissing the complaint with prejudice. We affirm.
The record reveals that Appellant’s mother, Genevieve Bush (“Mrs.
Bush”), is a resident at a nursing home. According to the parties’ filings in
this case, Appellant’s conduct at the nursing home was disruptive and
upsetting to Mrs. Bush, to other residents, and to the nursing home staff. In
January of 2016, Appellant was arrested and charged with trespass, disorderly
conduct, and resisting arrest based on her behavior at the nursing home.
Appellee, Thomas Lawrence, serves as the attending physician for the nursing
home. At the request of the nursing home’s director of nursing, Appellee
wrote a letter to be read in court during a hearing on Appellant’s petition for
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bail modification in the criminal proceeding. Appellee’s May 23, 2016 letter
reads as follows:
To Whom It May Concern:
Ms. Genevieve Bush is a patient under my care at Park Lane at
Bellingham nursing facility where I serve her as Attending
Physician. I was asked to comment on the appropriateness of her
receiving visits from her daughter and the impact that this has on
her health. Her daughter has a long-standing history of causing
turmoil during her visits and the staff at the nursing facility have
witnessed Ms. Bush to be extremely upset by these visits. In
addition, I have been informed that her daughter has been
disruptive to the staff and to their caring for other residents as
well as being disruptive to the other residents directly.
Also of great concern is that her daughter fabricates untruths
regarding Ms. Bush’s medical care and her medical condition. On
one occasion she relayed a series of untrue statements about her
health to her cardiologist causing him to change orders for
treatment without even seeing the patient. On numerous
occasions the Pennsylvania Department of Health has been given
false reports about her health status from her daughter who has
not had any direct information about her health for some time. It
is my understanding that her daughter has been prevented from
visiting her at that facility due to the negative impact her visits
have on her mother’s health as well as disruption to the other
residents and staff at the facility.
Please let me know if I can answer any questions about these
issues. Thank you.
Third Amended Complaint, at Exhibit A.
According to Appellant, the judge presiding over the criminal proceeding
imposed a bail condition prohibiting Appellant from visiting the nursing home.
Regardless of the criminal proceedings, the nursing home decided in January
of 2016 to forbid entry to Appellant. Given her inability to visit her mother,
Appellant states that “[t]he issue before this court is a matter of justice for a
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mother and daughter.” Appellant’s Reply Brief at 1. We disagree, inasmuch
as the propriety of the bail condition is not before us and the nursing home is
not a party to this action. Rather, we must address the trial court’s dismissal
of Appellant’s civil action against Appellee.
Procedurally, Appellant pro se filed an original and three amended
complaints against Appellee alleging defamation and related causes of action1
based on his authorship of the May 23, 2016 letter. After each successive
complaint, the trial court sustained Appellee’s preliminary objections. In
footnotes to its orders, the trial court explained to Appellant that her
complaints were woefully legally deficient and offered suggestions for
correcting some of the problems. The order sustaining Appellee’s preliminary
objections to Appellant’s second amended complaint warned Appellant that
similar failures in her third amended complaint would result in dismissal with
prejudice. When her third amended complaint failed to cure any of the
deficiencies, the trial court sustained Appellee’s fourth round of preliminary
objections and dismissed Appellant’s complaint with prejudice. This timely
appeal followed.
We conduct our review according to the following:
Our standard of review of an order of the trial court
overruling or sustaining preliminary objections is to determine
whether the trial court committed an error of law. When
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1 Appellant’s third amended complaint included, in addition to defamation, a
civil conspiracy cause of action. Her appellate briefs do not develop a coherent
argument regarding the dismissal of that cause of action.
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considering the appropriateness of a ruling on preliminary
objections, the appellate court must apply the same standard as
the trial court.
Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
Adams v. Hellings Builders, Inc., 146 A.3d 795, 798 (Pa. Super. 2016)
(citation and alterations omitted).
Appellant’s third amended complaint, filed December 19, 2017, is a
rambling, incoherent, forty-six page document written largely in narrative
form. The Judicial Code places the following burden on a defamation plaintiff:
(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.
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42 Pa.C.S.A. § 8343(a).
Among many deficiencies, Appellant fails to explain precisely which
statements in Appellee’s May 23, 2016 letter are defamatory. Further,
Appellant fails to explain precisely to whom—other than the presiding judge
in the criminal case—Appellee published his allegedly defamatory statements.
As Appellee correctly notes, “[a] complaint for defamation must, on its face,
identify specifically what allegedly defamatory statements were made, and to
whom they were made. Failure to do so will subject the complaint to dismissal
for lack of publication.” Moses v. McWilliams, 170, 549 A.2d 950, 960 (Pa.
Super. 1988), appeal denied, 558 A.2d 532 (Pa. 1989). Appellant also fails
to explain how any recipient or recipients of the May 23, 2016 letter
appreciated its allegedly defamatory character. We observe that the letter
never names Appellant. Additionally, Appellant’s complaint and appellate brief
fail to allege or explain why Appellee’s letter was not subject to absolute
judicial privilege. See generally, Schanne v. Addis, 121 A.3d 942, 945 (Pa.
2015).
Rather than address these issues, Appellant spends much of her
principal and reply briefs complaining of procedural deficiencies with
Appellee’s preliminary objections, which she believes misstated pertinent facts
and failed to include a proper verification. These assertions, even if correct
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(we express no opinion), do not absolve Appellant of her failure, in four tries,
to state a claim upon which relief could be granted.2
In light of all of the foregoing, we discern no error in the trial court’s
order sustaining Appellee’s preliminary objections and dismissing the
complaint with prejudice. See Spain v. Vicente, 461 A.2d 833, 837 (Pa.
Super. 1983) (noting that “the right to amend will be withheld if there does
not appear to be a reasonable possibility that amendment will be
successful.”).3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/19
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2 See Pa.R.C.P. No. 1028(a)(4).
3 Appellant cites Haines v. Kerner, 404 U.S. 519, 520-21 (1972), in which
the United States Supreme Court held that the pleadings of a pro se
incarcerated litigant should not be held to the same stringent standard as
pleadings drafted by an attorney. The litigant in Haines was seeking redress
against the state governor and various prison officials for alleged deprivation
of rights during his incarceration. Id. For purposes of a state law civil claim
in Pennsylvania, however, this Court has held that pro se litigants are “not
absolved from complying with procedural rules.” Hoover v. Davila, 862 A.2d
591, 595 (Pa. Super. 2004). Even so, the trial court permitted Appellant to
amend her complaint three times and offered Appellant guidance on how to
cure the various deficiencies in her complaints. The order on appeal was not
the result of unfair treatment of a pro se litigant.
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