Chasan, B. v. Littman, G. ( 2018 )

J-A05036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAW OFFICE OF BRUCE J. CHASAN, : IN THE SUPERIOR COURT OF
LLC AND BRUCE CHASAN, ESQUIRE : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 2928 EDA 2016
FREUNSLICH & LITTMAN, LLC AND :
GREGORY LITTMAN, ESQUIRE :
Appeal from the Order Entered August 22, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 00623 Feb. Term, 2015
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 29, 2018
Appellants Bruce J. Chasan, Esq. et al., (hereinafter Chasan) appeal
from the Order entered in the Court of Common Pleas of Philadelphia County
on August 22, 2016, granting summary judgment in favor of Appellees
Gregory Littman, Esq. et al. (hereinafter Littman) and dismissing Chasan’s
defamation action. We affirm.
The trial court set forth the pertinent facts and procedural history herein
as follows:
This is a defamation suit arising from the conduct of
attorneys in the litigation of a separate matter, Govberg v.
Feierstein, Philadelphia CCP no. 130704676. The allegedly
defamatory statements were made in three letters written by
Attorney Littman and sent to multiple third parties while the
Govberg case was pending. Attorney Littman was plaintiffs'
counsel, and Attorney Chasan represented defendant Edward
Feierstein. It is undisputed that Attorney Littman made the
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* Former Justice specially assigned to the Superior Court.
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statements, intended their apparent meaning, and meant them to
apply to Attorney Chasan. It is further undisputed that the
recipients of the letters understood the intended meanings of the
statements.
In the Govberg matter, Attorney Littman conducted a pre -
Complaint deposition of would-be defendant Mr. Feierstein. After
the deposition, Attorney Chasan repeatedly urged Attorney
Littman and his clients not to pursue the matter, saying it lacked
merit. Attorney Littman's clients refused and filed a Complaint
against Mr. Feierstein. Mr. Feierstein's Answer laid a counterclaim
against the plaintiffs and against Attorney Littman personally,
suing for attorney's fees under 42 Pa. C.S.A. § 2503(9) for
vexatious filing of a baseless suit.
The February 5, 2014 letter (Dragonetti Notice) to
Attorney Chasan
Shortly after the filing of the Govberg Answer, Attorney
Littman sent a Dragonetti Notice to Attorney Chasan. The letter
contained several allegations of misconduct and included the
following statements:
1. the counterclaim brought by Attorney Chasan and his
client was baseless, unlawful, and constituted
wrongful use of civil proceedings;
2. Attorney Chasan and Mr. Feierstein were engaged in
witness intimidation by using their counterclaim
against Attorney Littman to discourage Attorney
Littman's brother, Matthew Littman, from testifying
against Mr. Feierstein in an upcoming, unrelated
criminal trial for which Matthew Littman had been
subpoenaed;
3. Attorney Littman had notified the Attorney General's
Office of Attorney Chasan and Mr. Feierstein's
"egregious and criminal offense" of witness
intimidation;
4. Mr. Feierstein had claimed mental incompetence to
stand trial in his criminal matter and had checked
himself into a mental health facility, although he
simultaneously continued to file and sign legal papers
for the Govberg matter; Attorney Littman therefore
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suspected that Mr. Feierstein was defrauding the
criminal court and that Attorney Chasan was be
knowingly participating in this conduct; and
5. that Attorney Chasan's actions violated the
Pennsylvania Rules of Professional Conduct, and the
counterclaim was brought "with gross negligence,
without probable cause and with the intention to
annoy, forcing [Attorney Littman and his clients] to
spend more time and money with [the Govberg]
litigation, while attempting to intimidate a witness
that will testify against Mr. Feierstein in his criminal
trial," and that this conduct warranted a disciplinary
report.
The letter instructed Attorney Chasan to withdraw the Govberg
counterclaim within three days or be subject to an ethics
complaint. The letter was carbon-copied to Deputy Attorneys
General Kenneth McDaniels and Eric Schoenberg, the prosecutors
in Mr. Feierstein's criminal trial; Bruce Castor, Esq., Mr.
Feierstein's criminal defense attorney; James Schwartzman, Esq.,
an ethics attorney with whom Attorney Littman had consulted
about the instant matter; and Attorney Littman's clients, the
Govberg plaintiffs. Attorney Chasan and/or Mr. Feierstein declined
to withdraw the Complaint.
The February 24, 2014 letter to Attorney Chasan
Three weeks later, Attorney Littman sent a second allegedly
defamatory letter addressed to Attorney Chasan and copied to the
same parties from the previous letter. The letter reiterated that
Attorney Chasan was acting in violation of Pennsylvania Rule of
Professional Conduct 3.3, Candor Toward the Tribunal.
Furthermore, he alleged, Attorney Chasan's conduct was being
used for illegitimate purposes to harass and intimidate others, it
violated statutory law, and it disrespected the legal system and
attorneys. He furthermore stated, "[I]f you continue to represent
Mr. Feierstein with the knowledge that he is defrauding the Court,
you will leave me no choice [but to lodge an ethics complaint]."
The March 28, 2014 letter to the Court
One month later, Attorney Littman wrote a third letter
allegedly defaming Attorney Chasan, this time addressed to the
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Honorable Ellen Ceisler, the presiding judge in the Govberg case,
and copied only to Attorney Chasan. The letter stated that
Attorney Chasan and Mr. Feierstein were acting "in bad faith" in
the Govberg matter, that Attorney Littman's attempts to resolve
the issue with Attorney Chasan had been met with silence, that
Mr. Feierstein had sued Attorney Littman personally for filing the
Govberg suit, that Mr. Feierstein was alleging mental
incompetence to stand trial in the contemporaneous Montgomery
County criminal proceeding, and that Attorney Chasan was suing
Attorney Littman for defamation due to Attorney Littman's copying
of outside parties on the prior two letters. He furthermore
requested a conference with the court and Attorney Chasan "so
that this matter can be litigated without jeopardizing the integrity
of the Court." Attorney Littman also attached copies of the prior
two letters to the Judge Ceisler letter.
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1Appellants and Appellees are suing in their personal capacity as
individual attorneys and as their respective related professional
entities/law practices. We refer to them herein as "Attorney
Chasan" and "Attorney Littman," respectively, for clarity.
2 Appellants raised eight allegations of error in their 1925(b)
Statement of Matters Complained on Appeal. However, for the
sake of relative brevity and due to the duplicative nature of certain
allegations, we limit this Opinion to the requirements of Pa. R.A.P.
1925(a).
Trial Court Opinion, filed 6/30/17, at 1-4.
In its Order entered on August 22, 2016, the trial court granted
Littman’s Motion for Summary Judgment and dismissed Chasan’s claims with
prejudice. On September 7, 2016, Chasan filed a timely notice of appeal with
this Court. On September 9, 2016, the trial court ordered Chasan to file a
concise statement of the errors complained of on appeal within twenty-one
(21) days. Chasan filed the same on September 28, 2016, wherein he set
forth the following eight issues:
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1. The court erred in granting summary judgment to [Littman] on
[Chasan’s] defamation complaint wherein the record included
evidence to support each element on which [Chasan] bear[s] the
burden of proof under 42 Pa.C.S.A. § 8343(a), thus showing a
disputed issue of material fact as to each element.
2. The court erred in granting summary judgment to [Littman] in
the mistaken belief that it was necessary for [Chasan] to introduce
expert testimony in support of the elements on which [Chasan]
bear[s] the burden of proof under 42 Pa.C.S.A. § 8343(a).
3. The court erred in granting summary judgment to [Littman]
when there were disputed issues of material fact as to truth of the
alleged defamatory communications.
4. The court erred in granting summary judgment to [Littman]
when there were disputed issues of material fact as to whether
the letters authored by Attorney Littman were privileged.
5. The court erred in granting summary judgment to [Littman]
when there were disputed issues of material fact as to whether
the subject matter of the defamatory comments was a matter of
public concern.
6. The court erred in granting summary judgment to [Littman],
relying on [Littman’s] beliefs and [Littman’s] advisor's belief and
opinions, since the credibility of the movant's oral testimony is for
the jury to determine.
7. The court erred in granting summary judgment to [Littman]
when relying on [Littman’s] expert report, as the credibility of the
expert is for the jury.
8. The court erred in granting summary judgment to [Littman] in
relying on two October 2014 emails by Feierstein, which [Chasan]
had no role in composing or sending, and which were authored by
Feierstein more than six months after [Littman] sent [the]
defamatory communications, and were therefore irrelevant.
See [Chasan’s] Rule 1925(b) Statement of Errors Complained of, filed
9/28/16, at ¶¶ 1-8.
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In his brief, Chasan presents the following two questions for this Court’s
review:
1. Did the court err as a matter of law in holding that [Chasan]
had insufficient evidence to show [Littman] published the
defamatory statements with fault, i.e., with negligence and/or
reckless disregard of their falsity?
2. Did the court err as a matter of law in holding that [Chasan]
had insufficient evidence of damages to support a claim for
defamation based on [Littman’s] publication of defamatory
statements?
[Chasan’s] Brief at 5.
Before reaching Appellant’s claims raised on appeal, we must first
determine whether they are properly before us. Pennsylvania Rule of
Appellate Procedure 1925 provides that a Rule 1925(b) statement “shall
concisely identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.
1925(b)(4)(ii). “Issues not included in the Statement and/or not raised in
accordance with the provisions of this [Rule] are waived.” Pa.R.A.P.
1925(b)(4)(vii). Regarding Rule 1925(b), our Supreme Court has stated:
Our jurisprudence is clear and well-settled, and firmly
establishes that: Rule 1925(b) sets out a simple bright-line rule,
which obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered; any issues not raised in a Rule
1925(b) statement will be deemed waived; the courts lack the
authority to countenance deviations from the Rule's terms; the
Rule's provisions are not subject to ad hoc exceptions or selective
enforcement; appellants and their counsel are responsible for
complying with the Rule's requirements; Rule 1925 violations may
be raised by the appellate court sua sponte, and the Rule applies
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notwithstanding an appellee's request not to enforce it; and, if
Rule 1925 is not clear as to what is required of an appellant, on-
the-record actions taken by the appellant aimed at compliance
may satisfy the Rule.13 We yet again repeat the principle first
stated in Lord that must be applied here: “[I]n order to preserve
their claims for appellate review, [a]ppellants must comply
whenever the trial court orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues
not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived.” [Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 2011)].
Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011) (footnote
omitted).
This Court also has considered the question of what constitutes a
sufficient 1925(b) statement on many occasions, and it is well-established
that “Appellant's concise statement must properly specify the error to be
addressed on appeal.” Commonwealth v. Hansley, 2011 PA Super 129, 24
A.3d 410, 415 (Pa. Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275(2011) (citation omitted). “[T]he Rule 1925(b) statement must be specific
enough for the trial court to identify and address the issue an appellant wishes
to raise on appeal.” Id. (brackets, internal quotation marks, and citation
omitted). In re A.B., 63 A.3d 345, 350 (Pa.Super. 2013). Moreover, “[a]
theory of error different from that presented to the trial jurist is waived on
appeal, even if both theories support the same basic allegation of error which
gives rise to the claim for relief.” Commonwealth v. Ryan, 909 A.2d 839,
845 (Pa.Super. 2006) (citation omitted), appeal denied, 597 Pa. 714, 951 A.2d
1163 (2008).
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In his appellate brief, Chasan contends the trial court erred in finding
the evidence was insufficient to establish that the defamatory statements had
been published with fault and that there had been insufficient evidence of
damages to support Littman’s defamation claims. However, while he
presented a challenge to the sufficiency of the evidence in paragraph one of
his concise statement, the claim is a general one pertaining the evidence to
support “each element on which [Littman] bear[s] the burden of proof under
42 Pa.C.S.A. § 8343(a).” See concise statement, supra, at ¶1. That statute
lists seven (7) issues which a plaintiff has the burden of proving in a
defamation action. It is well-established that “[i]n order to preserve a
challenge to the sufficiency of the evidence on appeal, an appellant's Rule
1925(b) statement must state with specificity the element or elements upon
which the appellant alleges that the evidence was insufficient.”
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013). While the
trial court herein ultimately granted Littman’s motion for summary judgment
upon finding that Chasan had failed to provide sufficient evidence of fault or
damages to prove a defamation or defamation per se claim, see Trial Court
Opinion, filed 6/30/17, at 4, the fact that a trial court addressed an appellant’s
sufficiency claim in its Rule 1925(a) opinion is of no moment to a waiver
analysis. Commonwelth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009),
appeal denied, 3 A.3d 670 (Pa. 2010).
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Here, Chasan failed to identify specifically in his concise statement how
the evidence had been insufficient to satisfy any of the elements necessary to
establish a defamation claim. Moreover, Appellant’s claims raised in his
appellate brief are not subsumed in the remaining seven issues presented in
his concise statement. Because only claims properly presented before the trial
court are preserved for appeal, and Chasan’s sufficiency of the evidence
challenge in his Rule 1925(b) statement not only was vague but also did not
mention publication with negligence and/or reckless disregard or refer to
damages, his contentions in his appellate brief concerning those statements
are waived. See Hansley and Ryan, supra.Order affirmed.1
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/18
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1We may affirm the trial court's order on any valid basis. Plasticert, Inc. v.
Westfield Ins. Co., 923 A.2d 489, 492 (Pa.Super. 2007).
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