Cipollone, M. v. Mueller, T. ( 2023 )

J-S05024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL CIPOLLONE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TARA MUELLER AND JOHN DOE A.K.A. : No. 847 WDA 2022
TATTOOPROTECTION_NY :
Appeal from the Order Entered June 23, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-22-006209
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED: May 23, 2023
Michael Cipollone appeals from the order, entered in the Court of
Common Pleas of Allegheny County, denying his motion for a preliminary
injunction1 against Tara Mueller (Mueller) and John Doe (Doe), a/k/a
TattooProtection_NY (collectively, Appellees).2 After our review, we affirm.
On April 24, 2022, at the Roc City Tattoo Expo in Rochester, New York,
Cipollone, a professional tattoo artist, was approached by Mueller and her
friend to provide them with tattoos. Cipollone’s cell phone was not working
properly to create a stencil, and so he used Mueller’s cell phone to create the
stencil. Cipollone took Mueller’s phone to a back room to print the stencil but
____________________________________________
1 See Pa.R.A.P. 311(a)(4) (“An appeal may be taken as of right . . . from . . .
[a]n order that grants or denies, modifies or refuses to modify, continues or
refuses to continue, or dissolves or refuses to dissolve an injunction[.]”).
2 Appellees have not filed briefs in this matter.
J-S05024-23
he was unable to print it. Ultimately, Cipollone did a freehand-sketched tattoo
on Mueller. Later that day, Cipollone emailed Mueller a picture he had taken
of the completed tattoo, and Mueller responded to the email, thanking him.
The next day, Mueller emailed Cipollone, accusing him of going into her
iCloud account through her cell phone, taking private, sexually explicit videos
from her phone, and sending them to his own phone. She informed him that
his cell phone number was the number that appeared on her MacBook,
indicating that photos or videos had been sent from her phone to that phone
number. See Mueller Affidavit, 6/10/22. Mueller also contacted Doe, who
operates the Instagram account, @tattooprotection-ny, about this incident,
and, on May 17, 2022, Doe posted Mueller’s story to the @tattooprotection-
ny Instagram account.
Cipollone avers that as a result of the post, he was fired from his place
of employment (In the Blood Tattoo, located in the City of Pittsburgh), where
he had worked for seventeen years. He also avers that multiple re-posts have
occurred, naming Cipollone as a sexual predator.
On May 31, 2022, Cipollone filed a complaint sounding in defamation
and an emergency motion for a preliminary injunction, seeking an order
requiring that Doe remove certain posts on the Instagram page and restricting
both Doe and Mueller from publishing defamatory speech about Cipollone. In
his motion, Cipollone claimed he has suffered irreparable harm to both his
personal and professional reputation. Mueller filed an answer, new matter,
and a counterclaim for conversion.
-2-
J-S05024-23
On June 13, 2022, the court held a hearing on Cipollone’s motion. The
court heard testimony from Cipollone and reviewed both parties’ exhibits,
including Mueller’s affidavit. See N.T. Preliminary Injunction Hearing,
6/13/22, at 14-48. On June 23, 2022, the court entered an order denying the
motion. Cipollone filed this timely appeal and raises the following issues for
our review:
I. Whether the trial court abused its discretion when it denied
[Cipollone’s] motion for preliminary injunctive relief?
A. Did [Cipollone] experience immediate and irreparable
harm that damages cannot adequately compensate?
B. Did [Cipollone] show that greater injury would result
from refusing an injunction than from granting it?
C. Did [Cipollone] prove that a preliminary injunction would
properly restore the parties to their status as it existed
immediately prior to the alleged wrongful conduct?
D. Did [Cipollone] show that he is likely to prevail on the
merits of his case?
E. Did [Cipollone] show that the injunction he sought is
reasonably suited to abate the offending activity?
F. Did [Cipollone] present evidence that a preliminary
injunction would not adversely affect the public interest?
Appellant’s Brief, at 5.
When reviewing an order granting or denying a preliminary injunction,
our review is “highly deferential” and limited to whether there was an abuse
of discretion. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount,
Inc., 828 A.2d 995, 1000 (Pa. 2003). “[W]e do not inquire into the merits of
the controversy, but only examine the record to determine if there were any
-3-
J-S05024-23
apparently reasonable grounds for the action of the [trial] court.” Id. (citation
omitted). A trial court has “apparently reasonable grounds” when it has found
that one of the prerequisites for a preliminary injunction has not been met.
Warehime v. Warehime, 860 A.2d 41, 46 (Pa. 2004).
To be entitled to a preliminary injunction, a party must show the
following: First, a party seeking a preliminary injunction must
show that an injunction is necessary to prevent immediate and
irreparable harm that cannot be adequately compensated by
damages. Second, the party must show that greater injury would
result from refusing an injunction than from granting it and,
concomitantly, that issuance of an injunction will not substantially
harm other interested parties in the proceedings. Third, the party
must show that a preliminary injunction will properly restore the
parties to their status as it existed immediately prior to the alleged
wrongful conduct. Fourth, the party seeking the injunction must
show that the activity it seeks to restrain is actionable, that its
right to relief is clear, and that the wrong is manifest, or, in other
words, must show that it is likely to prevail on the merits. Fifth,
the party must show that the injunction it seeks is reasonably
suited to abate the offending activity. Sixth and finally, the party
seeking an injunction must show that a preliminary injunction will
not adversely affect the public interest.
Kuhstoss v. Steele, 234 A.3d 789, 792–93 (Pa. Super. 2020) (citation
omitted) (emphasis added). See County of Allegheny v. Commonwealth,
544 A.2d 1305, 1307-08 (Pa. 1988) (for preliminary injunction to issue, every
prerequisite must be established; proponent of preliminary injunction faces
heavy burden of persuasion).
The purposes of a preliminary injunction are to preserve the status
quo and prevent imminent and irreparable harm which might
occur before the merits of the case can be heard and determined.
It is considered an extraordinary remedy and may only be granted
if the plaintiff has established a clear right to the relief sought.
-4-
J-S05024-23
Soja v. Factoryville Sportsmen's Club, 522 A.2d 1129, 1131 (Pa. Super.
1987) (citations omitted).
After our review of the record, and in light of our highly deferential
standard of review, we conclude there are “apparently reasonable grounds”
for the trial court’s action. Summit Towne Centre, supra. The trial court
made express findings related to the six prerequisites for a preliminary
injunction. The court found Cipollone failed to establish that a preliminary
injunction is necessary to prevent immediate and irreparable harm. In his
motion, Cipollone alleges that Mueller made defamatory statements that led
to his loss of employment and damage to his reputation. See Emergency
Motion for Preliminary Injunctive Relief, 5/31/22, at ¶¶ 4, 17-18. However,
as the court observed, the damage has already been done. Cipollone has lost
his job, and, thus, has failed to prove that an injunction is necessary to
prevent immediate and irreparable harm that damages cannot adequately
compensate. See Constantakis v. Bryan Advisory Services, LLC, 275
A.3d 998, 1016, 1017 (Pa. Super. 2022) (purposes of preliminary injunction
are to preserve the status quo and prevent imminent and irreparable harm
that might occur before merits of case can be heard and determined).
Moreover, at the hearing, Cipollone failed to present evidence or testimony to
support the argument that he had become unemployable, such that injunctive
relief was necessary to prevent immediate and irreparable harm. Finally,
damage to reputation is compensable at law with money damages. See
Joseph v. Scranton Times, L.P., 129 A.3d 404, 426 (Pa. 2015).
-5-
J-S05024-23
Furthermore, although Cipollone was not required to prove his
underlying claim, he had to show his “right to relief is clear” and that he was
“likely to prevail on the merits[.]” Warehime, 850 A.2d at 47. Here, the
court found that Cipollone failed to establish that he was likely to succeed on
the merits. Mueller’s affidavit and attached exhibits showed that at the time
Cipollone had access to Mueller’s phone, private videos were sent from
Mueller’s phone to Cipollone’s phone. See N.T., Preliminary Injunction
Hearing, supra at 29, 36, 41, 50-51. The court found that evidence credible.
Cipollone testified that he did not send anything from Mueller’s phone to his
phone, but, as the court noted, no evidence was submitted that refuted
Mueller’s evidence. We agree with the trial court that this falls short of
demonstrating Cipollone’s clear right to relief.
Our review of the record reveals “apparently reasonable grounds” for
the trial court’s ruling. See SEIU Healthcare Pennsylvania v.
Commonwealth, 104 A.3d 495, 501 (Pa. 2014). Accordingly, we find that
the trial court acted within its discretion when it denied Cipollone’s application
for a preliminary injunction. Kuhstoss, supra.
Order affirmed.
-6-
J-S05024-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
-7-