B.J. Chasan, Esq. v. W.H. Platt, Esq.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce J. Chasan, Esq., :
Appellant :
:
v. : No. 47 C.D. 2020
: Argued: November 12, 2020
William H. Platt, Esq., Retired Superior :
Court Judge, Susan Peikes Gantman, :
Superior Court Judge, Maria :
McLaughlin, Superior Court Judge :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON (P.), Judge
OPINION
BY JUDGE CROMPTON FILED: December 14, 200
Bruce J. Chasan, Esq. (Lawyer), representing himself, appeals an order
of the Court of Common Pleas of Philadelphia County (Trial Court) sustaining the
preliminary objections of then-Judges of the Pennsylvania Superior Court, William
H. Platt, Esq. (retired), Judge Susan Peikes Gantman, and Judge Maria McLaughlin
(collectively, Judges), and dismissing, with prejudice, his Second Amended
Complaint (SAC) that sought declaratory relief for alleged defamatory statements
contained in Carmen Enterprises, Inc. v. Murpenter, LLC, 185 A.3d 380 (Pa. Super.
2018), appeal denied, 201 A.3d 725 (Pa. 2019) (Judicial Opinion). The Judicial
Opinion disposed of cross-appeals over the amount of attorney fees awarded for
Lawyer’s work on behalf of Carmen Enterprises, Inc. (Client), a travel agency that
Lawyer owned as sole shareholder and served as President. The Trial Court held
Judges were judicially immune from suit. Upon review, we affirm.
I. Background
In 2002, on behalf of Client, Lawyer filed the initial complaint alleging
a breach of a purchase and sale agreement by Murpenter, LLC (Defendant) in the
Montgomery County Court of Common Pleas (Litigation). See SAC ¶21; Reproduced
Record (R.R.) at 12a-54a. Relevant here, the agreement contained a provision for
“reasonable attorney’s fees” in the event of breach. Id. ¶7. At that time, Lawyer was
employed as an intellectual property attorney in a Philadelphia law firm (Firm).
However, Lawyer was no longer employed by the Firm after 2011, and then served as
of counsel in 2012. The Litigation to which the fees related was ongoing for more than
a decade, involving motions practice, filings, and appeals in multiple courts. A brief
overview of the salient procedural history of the Litigation follows.
Initially, Defendant successfully moved for partial summary judgment,
precluding Lawyer from receiving contractual attorney fees based on his role with
Client. See Order, (Montg. Ct. Common Pleas (C.C.P.), No. 02-07223, June 17, 2003).
The matter was then tried in a bench trial before Judge Richard P. Haaz in April 2013.
Client obtained a $45,057.47 verdict. The parties filed post-trial motions, which Judge
Haaz denied as to Defendant, and granted as to Client. Client filed a motion to mold
the verdict to account for Client’s successful verdict and post-trial motions, which the
court, through Judge Haaz, ultimately granted. The verdict was then molded to include
pre- and post-judgment interest, attorney fees, and costs. However, while fees were
awarded for Client’s other counsel, the order awarded “$0” for Lawyer’s fees. R.R. at
61a; Order, (Montg. C.C.P., No. 02-07223, Mar. 12, 2014). Client appealed this order.
On appeal, the Superior Court reversed the partial summary judgment
order that precluded fees for Lawyer’s time and remanded the matter for a hearing
on Lawyer’s reasonable attorney fees related to the Litigation. Carmen Enters., Inc.
2
v. Murpenter, LLC (Pa. Super., Nos. 950/1115 EDA 2014, filed Aug. 12, 2015),
2015 WL 6698621 (unreported), appeal denied, 141 A.3d 477 (Pa. 2016). The
Superior Court ruled the inclusion of Lawyer’s fees was permissible and directed the
lower court to hold a hearing limited to the amount of attorney fees.
In 2016, following a hearing where Lawyer testified regarding his fees,
Judge Haaz determined the reasonable fees for Lawyer’s services over the claimed
13-year period. Judge Haaz noted there was no fee agreement between Lawyer and
Client that set forth Lawyer’s billing rate. While there was evidence regarding his
rate while working at the Firm, Judge Haaz noted Lawyer was working as a solo
practitioner at the time of the hearing. He also found that Lawyer submitted no
evidence regarding his hourly rate while working as a solo practitioner. Judge Haaz
concluded “that the sum of $405,400.00 [was] a reasonable fee for the services
provided by [Lawyer] in his capacity as a legal professional.” R.R. at 100a; see
Order, (Montg. C.C.P., No. 2002-07223, June 15, 2017) (Fee Award). The Fee
Award represented less than half of the $1 million Client sought to recover for
Lawyer’s fees. Both parties appealed the Fee Award to the Superior Court.
On appeal, in eight of the nine issues raised, Client questioned the
reduction of fees. Lawyer asserted the Fee Award constituted a substantial reduction
in both the hours claimed and the rate at which Lawyer billed his work. SAC ¶46.
Specifically, he challenged the lower court’s reduction of his hourly rate; fees were
awarded based on a rate of $200 per hour instead of $450 per hour, which was
Lawyer’s rate in 2009 while he was a patent lawyer at the Firm.
In the Judicial Opinion at issue in this appeal, the Superior Court
affirmed the Fee Award. In its decision, the Court reasoned an award of attorney
fees is within a fact-finding court’s discretion, and based on the complexity of the
3
issues, the fact-finder may reduce the number of hours or the hourly rate. As such,
the Superior Court determined the lower court was within its powers on this matter.
The Judicial Opinion stated the “threshold issue for [Client] (and
[Lawyer]) throughout the [L]itigation had to be (or should have been) the amount of
money obtainable in relation to the amount of fees for the reasonable legal services
necessary to obtain it.” See Judicial Opinion, 185 A.3d at 393 (citation omitted).
The Judicial Opinion noted the lower court concluded: “[Client] failed to convince
the [lower] court that the total hours claimed for these services are reasonable or
justified. Accordingly, the court will not include these 511.1 hours in determining a
reasonable fee.” Id. at 394 (citing Tr. Ct., Memo. & Order, (Jan. Memo. & Order)
1/16/20, at 8). Ultimately, the Superior Court, through the Judges’ Judicial Opinion,
held: “On independent review, we discern no error or abuse of discretion in the trial
court’s ruling. None of [Client’s] numerous complaints, many unsupported,
marginal or trivial, justify disturbing the decision of the [lower] court. Client’s
claims merit no further relief.” Id. at 394.
Lawyer filed a petition for reargument and for reargument en banc,
asserting the appeals should have been quashed because the lower court’s order was
not final. The Superior Court denied the petition. Client then filed a petition for
allowance of appeal to the Supreme Court, which was denied on February 4, 2019.
In addition, in July 2018, Client filed an application for relief with the
Superior Court seeking revisions to the Judicial Opinion (Revision Application), which
the Superior Court denied. The Pennsylvania Supreme Court then denied Lawyer’s
“Application for Relief Regarding Defamatory Statement in Superior Court
Precedential Opinion Which the Superior Court Refused to Correct in an Order
Denying [Revision Application] Presented in that Court.” Jan. Memo. & Order at 2-3.
4
Following the denial of his requests to revise the Judicial Opinion to
remove portions he considered defaming, Lawyer filed the initial complaint in the
Trial Court seeking declaratory relief to compel removal of allegedly objectionable
language from the Judicial Opinion. In August 2019, Lawyer filed the SAC,
comprised of five counts of defamation as to the parts of the Judicial Opinion to
which he objected, to which he appended a number of exhibits. See Ex. A-K (R.R.
at 55a-172a). In general, the SAC alleged Judges exceeded their jurisdiction by
making findings of fact that conflicted with or were not contained in the Fee Award.
Specifically, Lawyer claimed defamation as to: use of Firm letterhead in note 13
(Count I); implying that Lawyer concealed his solo billing practices from the lower
court (Count II); characterization of Lawyer as alter ego of Client in note 15 (Count
III); use of the word “threatening” to refer to Lawyer’s conduct (Count IV); and
“belittlement” of the multi-count complaint in the Litigation (Count V). Lawyer
sought a declaration that these parts of the Judicial Opinion constituted defamation.
On August 20, 2019, Judges filed preliminary objections in the nature
of a demurrer and a brief in support. See Prelim. Objs. (R.R. at 173a-78a); Br. in
Support (R.R. at 204a-27a). Judges alleged Lawyer’s “[SAC] asks for declaratory
relief only: a declaration that [] Judges defamed him in the [Judicial] Opinion.”
Prelim. Objs. ¶11 (R.R. at 177a). Thus, Judges asserted “[Lawyer’s] action is barred
by judicial immunity, judicial privilege, sovereign immunity, high public official
immunity, and failure to state a declaratory judgment claim.” Id. ¶12.
Lawyer did not object to the preliminary objections. Rather, Lawyer
filed a 67-page brief in opposition to the preliminary objections. R.R. at 228a-98a.
Relevant here, in his response (brief), Lawyer did not challenge the assertion of the
immunity defenses on procedural grounds, as properly pled in new matter.
5
The Trial Court issued an order and memorandum dated January 16,
2020, under Judge Stella Tsai. After reviewing the legal standard applicable to a
demurrer, the Trial Court considered the immunity defenses Judges raised in their
preliminary objections. It reasoned immunity may be considered on preliminary
objections as a basis for dismissal when it is clear from the face of the complaint. It
noted that Lawyer waived the procedural defect of raising the affirmative defenses
by preliminary objections because Lawyer did not object to the procedure by filing
his own preliminary objections.
The Trial Court determined “Lawyer’s action is barred by the doctrine
of judicial immunity” because the defamation claim was predicated on content in the
Judicial Opinion decided by Judges in their judicial capacity. Tr. Ct., Order, 1/16/20,
at 10. It explained the appeal of the Fee Award was within the Superior Court’s
exclusive jurisdiction over appeals from the county courts of common pleas such that
Judges were acting within their subject matter jurisdiction. Therefore, the Trial Court
dismissed the SAC “with prejudice.” Id. at 11. Lawyer filed a notice of appeal.
In his statement of errors complained of on appeal, Lawyer asserted
judicial immunity did not apply because the acts underlying his claims were outside
Judges’ proper jurisdiction. He claimed certain parts of the Judicial Opinion,
comprised of findings, credibility determinations, and commentary, constituted
defamatory statements from which he sought declaratory relief.
In its Rule 1925(a) opinion, Pa. R.A.P. 1925(a), the Trial Court focused
on the doctrine of judicial immunity; it did not analyze Judges’ other immunity
defenses. Specifically, it noted the similarity between the statements Lawyer sought
to have deleted or revised in his Revision Application and the sources of defamation
outlined in the SAC as follows:
6
1) correction or deletion of footnote 13,[1] regarding [Lawyer’s] filings
in the bankruptcy court supposedly using his former [Firm’s] stationery,
because the statement in the footnote was demonstrably wrong and
defamatory, and there was nothing the Judges could do to correct it,
other than deleting the footnote [Firm affiliation objection in Count I];
2) deletion of portions of the opinion that belittled [Client’s] multi-count
complaint because Pa.R.[C.]P. [No.] 1020(d) requires joinder of all
claims, or risk waiver, and the numerous counts were all well-founded
[characterization of multi-count complaint objection in Count V];
3) deletion of the language that [Lawyer] “threatened”[2] [Opposing
Counsel] with high legal fees; [threatened objection in Count IV] and
4) deletion of footnote 15[3] regarding the unnecessary “alter ego”
language [alter ego objection in Count III].
1
Note 13 states: “Nevertheless, the correspondence and document filings in the record
from the bankruptcy proceedings bear the letterhead of the [Firm] where [Client] then worked.”
Carmen Enterprises, Inc. v. Murpenter, LLC, 185 A.3d 380, 386 n.13 (Pa. Super. 2018), appeal
denied, 201 A.3d 725 (Pa. 2019) (Judicial Opinion).
2
Lawyer requested the word threatened be changed to “warned” in the revised draft of the
Judicial Opinion he submitted for the Superior Court’s consideration of his Revision Application.
3
Note 15 of the Judicial Opinion, with citations to case law omitted, states:
We have not overlooked [Client] and [Lawyer’s] apparent general disregard, as
evident in the record before us, for the observance of proper formalities in the
conduct of [Client’s] corporate activities, as argued by [Defendant]. (See
Appellee’s Brief, at 19); see also Appellant’s Brief, at 15: (“Any written agreement
would have been artificial and unnecessary.”). [Client] even appears on occasion to
use their names almost interchangeably. (See, e.g., Appellant’s Brief, at 32 (at “trial
... [Client] decided [Lawyer] would handle the other witnesses”); id. at 40,
(“[Client] concedes it was disappointed . . . .”) (emphasis added)). It is axiomatic
that a corporation can act only though [sic] its officers, employees, and other agents.
Absent any evidence of proper formal authorization of corporate action, (e.g., a
corporate resolution, minutes of shareholder’s meeting, etc.), most of [Lawyer’s]
efforts to simulate proper and valid corporate action by imputing human acts to
[Client] are legally frivolous and verge on the ludicrous. (See[,] e.g.[,] [Client]
Brief, at 14) (“[Client] and [Lawyer] had a mutual understanding . . .”); (id. at 15
(“[Client] decided to file a complaint”); (“[Client] and [Lawyer] agreed to terms,
including an agreed billing rate.”). Nevertheless, it appears that [Defendant] did
(Footnote continued on next page…)
7
Tr. Ct., Slip Op., 3/23/20, at 2-3. In addition to these previously requested revisions,
Lawyer sought deletion of portions of the Judicial Opinion that allegedly criticized
his billing practices.4 Id. at 3 (“[Lawyer] further claims that [Judges] defamed him
by ‘finding’ that he concealed his solo billing practices from the [lower] court.”).
After briefing and argument, the matter is ready for disposition.
II. Discussion
On appeal,5 Lawyer asserts the SAC alleged sufficient facts that the
“defamatory factual findings by [Judges] in their opinion were either totally absent in
the [lower] court opinions or in conflict with findings in the [lower] court opinions”
such that Judges were acting outside their jurisdiction. Appellant’s Br. at 3. Lawyer
argues the Trial Court erred in holding Judges immune from suit, maintaining that
judicial immunity only applies to suits for monetary damages, which he is not
pursuing. He claims the Judicial Opinion “wrongfully diminished [Lawyer’s]
reputation in perpetuity,” id. at 6 (bold in original), and that the SAC outlined the
defamatory statements in detail. Indeed, Lawyer appended to the SAC, as Exhibit
J, a revised opinion that edited the objectionable aspects of the Judicial Opinion.
not present and develop any “alter ego” issue at trial, or seek to pierce the corporate
veil. Therefore, we disregard further consideration of corporate veil or alter ego
issues for the purpose of our analysis and decision.
4
Though the statements to which Lawyer objected in the Revision Application are also
cited in his defamation claims in the SAC, res judicata does not apply as the SAC involves
different parties, different claims, and different relief. Moreover, the Revision Application was
ancillary to the Judicial Opinion, which involved contractual attorney fees, and the SAC does not
challenge the merits of or result in the Judicial Opinion, which was in Client’s favor. Cf. Doheny
v. Dep’t of Transp., Bureau of Driver Licensing, 171 A.3d 930 (Pa. Cmwlth. 2017).
5
“Our scope of review of a trial court order sustaining preliminary objections and
dismissing a complaint is limited to determining whether the trial court abused its discretion or
committed an error of law.” Logan v. Lillie, 728 A.2d 995, 998 n.1 (Pa. Cmwlth. 1999) (upholding
dismissal of complaint seeking both monetary and equitable relief on judicial immunity grounds).
8
A. Preliminary Objection Standard & Procedure
Within their preliminary objections, Judges raised judicial immunity,
among other defenses. Judges also asserted a demurrer, challenging the legal
sufficiency of the SAC as to the declaratory judgment claim that seeks a declaration
that the four identified parts of the Judicial Opinion (1-4) constitute defamation.
1. Demurrer
It is well established that “preliminary objections in the nature of a
demurrer admi[t] all well-pleaded, material and relevant facts in the complaint.”
Unger v. Hampton Twp., 263 A.2d 385, 387 (Pa. 1970). A demurrer also admits as
true every inference fairly deducible from those facts. Palmer v. Bartosh, 959 A.2d
508 (Pa. Cmwlth. 2008). The court is not required to accept as true legal conclusions,
unwarranted factual inferences, argumentative allegations, or expressions of opinion.
Armstrong Cnty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160 (Pa. Cmwlth.
2013) (en banc).
Since sustaining a demurrer results in denial of the plaintiff’s claim or
a dismissal of his suit, only where the pleading is “facially devoid of merit” should
the demurrer be sustained. Wurth by Wurth v. City of Philadelphia, 584 A.2d 403,
406 (Pa. Cmwlth. 1990) (en banc) (citation omitted). If the facts as pleaded state a
claim for which relief may be granted under any theory of law, there is sufficient
doubt to require rejection of the demurrer. Palmer. However, it must be clear the
law will not permit recovery, and any doubt must be resolved in favor of the non-
moving party. Key v. Pa. Dep’t of Corr., 185 A.3d 421 (Pa. Cmwlth. 2018).
2. Immunity Defenses Raised by Preliminary Objection
Technically, the Pennsylvania Rules of Civil Procedure prohibit a
defendant from raising the affirmative defense of immunity by way of preliminary
9
objection. Rather, the affirmative defense of immunity should be raised in an answer
to the complaint under the heading “New Matter.” See Pa.R.C.P. Nos. 1028, 1030.
In pertinent part, and with emphasis added, Pa.R.C.P. No. 1030 provides:
(a) Except as provided by subdivision (b), all affirmative defenses
including but not limited to the defenses of . . . immunity from suit . . .
shall be pleaded in a responsive pleading under the heading “New
Matter.” A party may set forth as new matter any other material facts
which are not merely denials of the averments of the preceding
pleading.
“Should a plaintiff wish to contest the defense on this procedural ground, the plaintiff
must file a preliminary objection to the preliminary objection.” Orange Stones Co. v.
City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. 2014).
When a party responds to the preliminary objections, instead of
challenging the procedure by filing its own preliminary objections, the party has
waived any challenge to the form of pleading the defense. See Feldman v. Hoffman,
107 A.3d 821 (Pa. Cmwlth. 2014). Generally, however, when not objected to in
preliminary objections, courts have been moving away from this strict interpretation
and it is now currently accepted that immunity is a defense that may be raised by
preliminary objection “when to delay a ruling thereon would serve no purpose.” Faust
v. Dep’t of Revenue, 592 A.2d 835, 838 n.3 (Pa. Cmwlth. 1991). But see Rufo v.
Bastian-Blessing Co., 207 A.2d 823 (Pa. 1965) (trial court may only consider
immunity defense raised by preliminary objection if plaintiff does not object).
Further, “Pennsylvania courts have long recognized a limited exception
to this rule and have allowed parties to plead the affirmative defense of immunity as
a preliminary objection where the defense is clearly applicable on the face of the
complaint.” Feldman, 107 A.3d at 829-30 (emphasis added) (citing string of cases);
see also Logan v. Lillie, 728 A.2d 995 (Pa. Cmwlth. 1999) (involving suit against
10
judicial defendants and successful assertion of judicial immunity). In fact, “[w]here,
however, the asserted affirmative defense is clearly applicable on the face of the
complaint, the court will consider it unless the plaintiff advances some reason, ‘other
than prolonging the matter,’ to defer consideration.” Firearm Owners Against
Crime v. City of Harrisburg, 218 A.3d 497, 515 (Pa. Cmwlth. 2019) (quoting
Feldman, 107 A.3d at 835) (when method of raising immunity defense challenged,
upheld overruling of preliminary objection because immunity was not clear on face
of complaint).
Applying the rule and the exceptions as set forth in decisional law here,
the Trial Court did not err in considering the immunity defenses Judges raised by
preliminary objection. Because the SAC names Judges as defendants for (allegedly
defamatory) content in the Judicial Opinion, the judicial immunity defense is evident
on the face of the complaint. Further, Lawyer offered no cause for delaying
consideration of this issue to a later stage of the proceedings and did not object to the
procedure used for asserting immunity, thus waiving any objection on that ground.
Feldman.
B. Substance: Judicial Immunity
“[J]udicial immunity requires a two-part analysis: first, whether the
judge has performed a judicial act; and second, whether the judge has some
jurisdiction over the subject matter before [him].” Langella v. Cercone, 34 A.3d
835, 838 (Pa. Super. 2011) (emphasis added). This Court reasoned: “Judges are
absolutely immune from liability for damages when performing judicial acts, even if
their actions are in error or performed with malice, provided there is not a clear
absence of all jurisdiction over subject matter and person.” Robinson v. Musmanno
(Pa. Cmwlth., No. 39 C.D. 2010, filed May 28, 2010), slip op. at 3, 2010 WL 9516526,
11
at *1 (unreported)6 (per curiam) (citing Beam v. Daihl, 767 A.2d 585 (Pa. Super.
2001)).
This Court recognizes judicial immunity is not only immunity from
damages, but also “immunity from suit.”7 See Guarrasi v. Scott, 25 A.3d 394, 405
n.11 (Pa. Cmwlth. 2011) (citing Mireles v. Waco, 502 U.S. 9 (1991)) (explaining
judicial immunity applied to a common pleas court judge); Logan (upholding
dismissal of equitable claims seeking declaration that judicial officers’ acts were
unconstitutional). As such, judicial immunity is an available defense for declaratory
relief. See Guarrasi; Logan; accord Azubuco v. Royal, 443 F.3d 302 (3d Cir. 2006).
Lawyer does not dispute that Judges issued the Judicial Opinion while
acting as Superior Court Judges; rather, he asserts that the described comments and
alleged fact-finding described in the SAC were not within Judges’ jurisdiction
because they are not permitted to make findings or credibility determinations on
appeal. Lawyer thus challenges the application of the judicial immunity defense
here.
1. Judicial Act
Notably, Lawyer does not contest that, when acting within their
jurisdiction, “Judges are absolutely immune from liability . . . [for] judicial acts.”
Logan, 782 A.2d at 998. That Judges’ issuance of the Judicial Opinion constitutes a
“judicial act” is beyond peradventure. See Musmanno; see also Appellant’s Reply Br.
at 6 (acknowledging that “writing an appellate opinion is a ‘judicial act’”).
6
This case is cited for its persuasive value in accordance with Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).
7
“Judicial immunity arose because it was in the public interest to have judges who were at
liberty to exercise their independent judgment about the merits of a case without fear of being
mulcted for damages should an unsatisfied litigant be able to convince another tribunal that the
judge acted not only mistakenly but with malice and corruption.” Dennis v. Sparks, 449 U.S. 24,
31 (1980) (distinguishing suit against judge for damages) (citations omitted).
12
2. Jurisdiction
We examine Lawyer’s primary argument that immunity does not attach
because the alleged defamatory statements in the Judicial Opinion constitute fact-
finding and thus exceed the statutory confines of appellate judging. Lawyer
contends that Judges acted outside their jurisdiction by making findings and
credibility determinations, thus, usurping the role of fact-finder.8 He asserts the
objectionable comments in the Judicial Opinion (i.e., (1) Firm affiliation reference
in footnote 13; (2) implied concealment of solo billing rate; (3) alter ego discussion
in footnote 15; (4) use of “threatening” to describe Lawyer’s conduct toward
opposing counsel; and (5) alleged belittlement of multi-count complaint) fell outside
the statutory jurisdiction applicable to Superior Court Judges in the Judicial Code.
For judicial immunity to attach, the complained of acts (here, five
comments in the Judicial Opinion), must be within the judicial actors’ jurisdiction.
In this context, this means the court’s subject matter jurisdiction to consider the
matter. Feingold v. Hill, 521 A.2d 33, 36-37 (Pa. Super. 1987). As our Supreme
Court explained, this is distinguishable from whether judges are acting within their
appropriate authority. “[J]urisdiction ‘relates solely to the competency of the
particular court or administrative body to determine controversies of the general
class to which the case then presented for its consideration belongs.’ Conversely,
the power or, more aptly, the authority of the Court is its capacity ‘to order or effect
a certain result.’” In re Bruno, 101 A.3d 635 (Pa. 2014) (citation omitted).
The statutory jurisdiction applicable to Judges is found in Sections 741
and 742 of the Judicial Code, 42 Pa. C.S. §§741, 742, which outline the jurisdiction
8
We lack authority to consider material beyond the SAC and make findings regarding the
content of pleadings in another action when reviewing the legal grounds for the Trial Court’s
dismissal of the SAC.
13
of the Superior Court. Section 741, relating to the Superior Court’s original
jurisdiction, provides:
The Superior Court shall have no original jurisdiction, except in cases
of mandamus and prohibition to courts of inferior jurisdiction where
such relief is ancillary to matters within its appellate jurisdiction, and
except that it, or any judge thereof, shall have full power and authority
when and as often as there may be occasion, to issue writs of habeas
corpus under like conditions returnable to the said court.
42 Pa. C.S. §741. Section 742, relating to appellate jurisdiction, provides:
The Superior Court shall have exclusive appellate jurisdiction of all
appeals from final orders of the courts of common pleas, regardless of
the nature of the controversy or the amount involved, except such classes
of appeals as are by any provision of this chapter within the exclusive
jurisdiction of the Supreme Court or the Commonwealth Court.
42 Pa. C.S. §742 (relating to appeals from courts of common pleas).
These statutory provisions pertain to the propriety of subject matter
jurisdiction over the issue in dispute and the parties to the dispute. Neither statutory
provision prohibits or directly addresses the authority of an appellate judge to engage
in fact-finding or make credibility determinations. Those aspects of decision-
making include the role of the court and the type of review, i.e., how the court
renders a decision, not whether the court may decide the matter before it. It is the
former category of decision-making of which Lawyer complains.
While Judges lack the power or authority to make credibility
determinations or find facts, they had proper jurisdiction to address the appeal of the
Fee Award because a contract dispute with a non-governmental party on appeal from
a court of common pleas is properly within its appellate jurisdiction under Section 742
of the Judicial Code. Also, the cases Lawyer cites for the proposition that a judge acts
14
outside his or her circumscribed appellate role involved reversal of the fact-finder.
See In re R.J.T., 9 A.3d 1179 (Pa. 2010). As a consequence, the alleged judicial
overreach of authority into the fact-finding realm altered the result and disregarded
the fact-finding below. Here, the Judicial Opinion affirmed the Fee Award, and so
maintained the result reached by the fact-finder and deferred to the lower court’s
material findings regarding the hourly rate charged and the number of hours worked.
Jurisdiction is not negated when the alleged judicial act is not expressly
authorized. See Langella. In Langella, while on the bench, the judge told the
defendant to “shut up” and commented on her multiple cats (40) in an arguably
pejorative manner. Despite that the judge’s comments were arguably not properly
judicial and authorized, because the comments were made while the judge was
acting as a judge, they met the threshold for a judicial act within his jurisdiction.
Similarly, the appeal from the Fee Award fell within Judges’ statutory jurisdiction,
and therefore satisfies the second requirement for judicial immunity.
In sum, we agree with the Trial Court that the Judicial Opinion
constituted a judicial act that was issued within Judges’ jurisdiction under Section
742 of the Judicial Code. Therefore, Judges are judicially immune from suit here.
C. Demurrer: Declaratory Relief as to Defamation
Lastly, we consider whether the Trial Court erred in determining
Lawyer failed to state a cognizable claim for declaratory judgment as to the alleged
defamation9 contained in the Judicial Opinion.
9
In a defamation claim, a plaintiff bears the burden of proving: (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; and (7) abuse of a conditionally privileged occasion. 42 Pa. C.S. §8343(a); see Feldman
(Footnote continued on next page…)
15
Because judicial immunity is clear on the face of the SAC, and the SAC
cannot be amended to obtain relief as to the named parties,10 the Trial Court did not
err in sustaining the demurrer to the declaratory judgment claim.11 See Guarrasi. At
its core, the purpose of declaratory relief is to address an imminent dispute or actual
controversy. The judicial acts that Lawyer complains of are in the past, such that the
declaration would not aid in resolution of a current or imminent dispute.
Also, judicial immunity applies to requests for equitable relief. See id.;
Logan. The rationale for ensuring judicial actors are immune from suit is equally
applicable to an action for declaratory judgment, i.e., to ensure judicial decision-
makers’ judgment is not compromised by a concern over being sued. Were this Court
to allow an action seeking revisions in a judicial opinion to proceed, any dissatisfied
litigant may then utilize a declaratory judgment action as a sword against the judicial
authors of what the litigant perceives is an unflattering or critical opinion.
Having concluded that the Trial Court properly held judicial immunity
bars the claims against Judges, we need not address the other defenses. See
Guarrasi.
v. Lafayette Green Condo. Ass’n, 806 A.2d 497 (Pa. Cmwlth. 2002). Though offensive to the
subject, generally, a statement that is merely an expression of opinion is not defamatory. Id.10
In not affording Lawyer an opportunity to amend the SAC (the third pleading), the Trial
Court did not err. A complaint is properly dismissed without allowance for amendment when leave
to amend would be a futile exercise. See Carlino v. Whitpain Invs., 453 A.2d 1385 (Pa. 1982).
11
The Declaratory Judgments Act, 42 Pa. C.S. §§7531-7541, is “remedial[;] [i]ts purpose
is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and
other legal relations, and is to be liberally construed and administered.” 42 Pa. C.S. §7541(a).
Declaratory judgment is appropriate only where there exists an actual controversy. Chester Cmty.
Charter Sch. v. Dep’t of Educ., 996 A.2d 68 (Pa. Cmwlth. 2010). “An actual controversy exists
when litigation is both imminent and inevitable and the declaration sought will practically help to
end the controversy between the parties.” Id. at 80 (emphasis added).
16
III. Conclusion
For the foregoing reasons, this Court affirms the Trial Court’s order.
______________________________
J. ANDREW CROMPTON, Judge
Judge Ceisler did not participate in the decision of this case.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce J. Chasan, Esq., :
Appellant :
:
v. : No. 47 C.D. 2020
:
William H. Platt, Esq., Retired Superior :
Court Judge, Susan Peikes Gantman, :
Superior Court Judge, Maria :
McLaughlin, Superior Court Judge :
ORDER
AND NOW, this 14th day of December 2020, the order of the Court of
Common Pleas of the County of Philadelphia is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge