Rusiewicz, D. v. Chase, W.

J-A27016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DOLORES RUSIEWICZ, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
WILLIAM J. CHASE, :
:
Appellee : No. 20 WDA 2014
Appeal from the Order Entered December 2, 2013,
In the Court of Common Pleas of Allegheny County,
Civil Division, at No. GD 13-004768.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 18, 2014
Dolores Rusiewicz (“Appellant”), appeals from the order entered on
December 2, 2013, that granted William J. Chase’s (“Appellee”) preliminary
objections and dismissed her complaint. We affirm.
At issue in this matter is the March 15, 2012 grievance letter that
Appellee sent to multiple administrative offices at the University of
Pittsburgh regarding an incident between Appellee’s son and Appellant. At
all relevant times, both Appellant and Appellee were employed by the
University of Pittsburgh. Appellant worked as an Ombudsman in the Office
of Student Appeals, and Appellee was a professor of Russian History.
On February 29, 2012, Appellee’s son, Matthew Chase, sought to drop
a class from his schedule. There was a dispute and argument between
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Appellee’s son and Appellant regarding the signature on a University of
Pittsburgh form.
In response to the situation, Appellee drafted the aforementioned
grievance letter. The letter is reproduced below:
Ms. Cheryl Ruffin 15 March 2012
Employee Relations Specialist
Human Resources
100 Craig Hall
Pittsburgh, PA 15260
Filing of a grievance against Ms. Dolores Rusiewicz
Dear Ms. Ruffin:
I am writing to file a grievance against Ms. Dolores
Rusiewicz, a staff member in the Student Financial Services
office, and to request an investigation of her behavior, which I
outline below. Given my status and the situation, I do not know
if you are the appropriate person to address, but I assume that
you will know best how to handle this grievance. My complaint
centers on Ms. Rusiewicz’s verbally abusive, demeaning, and
intimidating treatment of a student (Matthew P. Chase) and her
deliberate countermanding of the decision of an Assistant Dean’s
approval without proper investigation or authorization. As I am
the father of the student who experienced Ms. Rusiewicz’s
unprofessional treatment, I admit that I have a personal bias.
However, as a faculty member at the University for the past
thirty-two years, I find her behavior to be absolutely
unacceptable. Such behavior damages the hard work and fine
reputation of the vast majority of staff and faculty who interact
with students. Permit me to set the context for Ms. Rusiewicz’s
unprofessional and unjustifiable behavior.
On Tuesday, 28 February, Matthew Chase went to the
Office of the Registrar to request a Late Drop for the course that
he was taking in the School of Education (IL 1562). Matthew
sought the Late Drop because he had come to the conclusion
that he would be unable to complete the course’s requirements
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in the aftermath of his late brother’s hospitalization. On 11
February, Matthew’s brother was in an automobile accident that
left him in a coma in the NeuroTrauma ICU at UPMC
Presbyterian. On 27 February, when it was clear that his brother
would remain in a vegetative state, Matthew and I made the
decision to move his brother to a hospice, where he died on 3
March. The strain of his brother’s condition was such that
Matthew realized that he would be unable to complete the
requirements for his class, especially the required group
observations. Until his brother’s accident, Matthew had attended
all of his classes save for one class when he had influenza; his
instructor had approved that absence. When Matthew visited the
Office of the Registrar to request a Late Drop, he had with him a
letter from the Critical Care Coordinator of the NeuroTrauma ICU
and other paperwork from UPMC attesting to his brother’s
condition.
The staff in the Office of the Registrar treated Matthew in a
very professional manner and informed him that he needed the
approval of an Assistant Dean for his request for a Late Drop. As
I was in my son’s room in UPMC Presbyterian at the time,
Matthew called me to tell me what he needed to do. I told him
that I would accompany him to the A&S Dean’s office in
Thackeray Hall. There we met with Assistant Dean George
Novacky. In light of the situation, Assistant Dean Novacky
approved Matthew’s request for a Late Drop; he signed and
dated the appropriate paperwork. Matthew returned
unaccompanied to the Office of the Registrar, where a staff
member told him that he needed one final approval from the
Office of Student Appeals in the Office of the Registrar’s suite.
On that day, Ms. Dolores Rusiewicz was in that office. In her
dealing with Matthew, Ms. Rusiewicz was rude, verbally abusive,
and unprofessional. She never asked Matthew why he sought the
Late Drop; in fact, she claimed that there was no such policy as
a Late Drop. Nor did she ask to see the paperwork from UPMC.
Rather, she accused Matthew of never having gone to class,
which was untrue, of lying, which was untrue, and of forging
Assistant Dean Novacky’s signature, which was untrue. Her tone
throughout the conversation was hostile and demeaning. When
Matthew asked her why, given her assertion, the Assistant Dean
would approve such a request, she stated that the Assistant
Dean did not know what he was talking about. She then crossed
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out Assistant Dean Novacky’s signature by making a large “X”
across it. After Matthew stated that, “I do not want to be treated
like shit,” he rose to leave Ms. Rusiewicz’s office. Matthew is not
given to using profanity, but under the circumstances, his
frustration was understandable. Ms. Rusiewicz followed him out
of the office and told the staff members in the Office of the
Registrar to call Campus Security. Rather than do so, a staff
member got David Robert Carmen, who after getting a brief
synopsis of the situation, went to Assistant Dean Novacky, who
once again signed and dated the form for a Late Drop. Mr.
Carmen returned to the Office of the Registrar and instructed a
staff member there to input the Late Drop for Matthew. After
hearing of the incident, I returned to the Office of the Registrar
to thank Mr. Carmen and staff for their handling the situation
with professionalism and empathy. At that time, I learned of Ms.
Rusiewicz’s name. Given my son Alex’s subsequent death, it is
only now that I have the ability to file this grievance.
As a longstanding member of the University community, I
find Ms. Rusiewicz’s behavior to be absolutely unacceptable. She
subjected a student to verbal insults and abuse; she
countermanded an Assistant Dean’s order without any
investigation or authorization; and she denied that the University
even had a Late Drop policy. Had Matthew been a typical
student, that is if his father was not a faculty member who
happened to witness Assistant Dean Novacky’s approval of the
request for a Late Drop, Ms. Rusiewicz’s unprofessional and
demeaning behavior may not have come to light. Many students,
uncertain about their rights, may well have let the situation
pass. I do not know if Ms. Rusiewicz’s behavior that day is
typical or atypical for her. In this instance, that is irrelevant.
What matters is that no student should not [sic] be exposed to
such hostile treatment when making a legitimate request for the
fulfillment of University policy. The vast majority of University
staff members and faculty know this and treat students with
respect. That Ms. Rusiewicz apparently does not do so damages
the reputation and undermines the hard work of all staff
members. Such behavior has no place at the University of
Pittsburgh.
According to the Human Resources website on Disciplinary
Concerns, “If an employee violates a University policy or rule or
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is not meeting performance requirements, has been
insubordinate, or has engaged in conduct affecting the workplace
and/or other employees or students, a supervisor may take
disciplinary action.” Examples of grounds for dismissal include:
“Threatening or intimidating students,” including “abusive,
demeaning, profane or threatening language to anyone,” and
“Insubordination and Falsification of documents.” Ms. Rusiewicz’s
language and behavior was clearly intimidating, abusive, and
demeaning; her willful destruction of Assistant Dean Novacky’s
signature constitutes both insubordination and a falsification of a
University document.
Although I am not Ms. Rusiewicz’s supervisor, in filing this
grievance, I expect that the appropriate University officials will
conduct a formal investigation of this incident and of Ms.
Rusiewicz’s behavior over time. Please inform me in writing of
the results of this investigation.
Sincerely,
s/ William J. Chase
William J. Chase
Professor of History
Director, Urban Studies Program
Cc: Associate Vice Chancellor for Student Financial Services,
Dennis DeSantis
Associate Provost Juan Manfredi
Associate Dean Richard Howe
Associate Dean John Twyning
Assistant Dean George A. Novacky
Appellant’s Complaint, 3/13/13 Exhibit 1 (Grievance Letter, 3/15/12).
The University conducted an investigation into Appellee’s claims, and
on April 12, 2012, Attorney John Greeno of the University of Pittsburgh’s
Legal Department drafted the following memorandum relating his findings
and conclusions:
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TO: Dolores Rusiewicz
FROM: John Greeno
SUBJECT: Investigation
DATE: April 12, 2012
CC: Dennis DeSantis
This is to advise you that I have completed my
investigation into the allegations raised by William Chase with
respect to your interaction with his son, Matthew, on or about
February 29, 2012. I have concluded that you did not violate
University policy, and I have so informed William Chase. My
conclusion is that you correctly advised Matthew Chase that he
did not have the correct signature on the Add/Drop form, and
that the interaction degenerated due to an unfortunate
combination of circumstances, including the tragic situation
involved (of which you were not aware), Matthew’s fragile state,
and the failure of others to recognize the erroneous signature
before sending Matthew to see you. I have recommended that
members of all offices involved in this occurrence be reminded of
the importance of obtaining pertinent information when assisting
students.
There is no reason for anything related to this matter to be
included in your departmental file, and I consider the matter to
be closed. Thank you for your cooperation.
Appellant’s Complaint, 3/13/13 Exhibit 2 (Human Resources Letter,
4/12/12).
On March 13, 2013, Appellant filed a 189 paragraph complaint in
which she raised ninety counts of defamation of character and one count
alleging intentional infliction of emotional distress. Appellee filed preliminary
objections in which he averred that the complaint should be dismissed
because Appellant failed to state a cause of action upon which relief could be
granted. Preliminary Objections, 7/17/13, at ¶¶ 9, 16. On December 2,
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2013, the trial court sustained Appellee’s preliminary objections. The trial
court concluded that Appellee’s grievance letter was incapable of being
defamatory because it asserted merely Appellee’s opinions. Additionally, the
trial court found that Appellant could not sustain her claim of intentional
infliction of emotional distress as there was no extreme or outrageous
conduct. The December 2, 2013 order dismissed Appellant’s complaint with
prejudice. This timely appeal followed.1
1
As will be discussed in greater detail below, Appellee filed preliminary
objections averring that Appellant failed to state a claim upon which relief
could be granted. Preliminary Objections, 7/17/13, at ¶¶ 9, 16. While it
appears from the preliminary objections that Appellee focused on Appellant’s
failure to present evidence of damages, Appellee did state, generally, that
Appellant failed to state a claim upon which relief could be granted. In
reaching its decision, the trial court treated Appellee’s preliminary objections
as a demurrer, and focused on whether the allegedly defamatory statement
was an opinion. The trial court decided the preliminary objections on that
issue and did not discuss damages. However, Appellant never challenged
the trial court’s decision to treat Appellee’s preliminary objections as a
demurrer and dispose of the preliminary objections on the basis that the
statement was an opinion, and thus not defamatory. Additionally, Appellant
has not presented a challenge on this issue in her appeal. Because
Appellant never challenged the trial court’s decision to focus on whether the
statement at issue was an opinion as opposed to whether Appellant
established damages, we deem it waived on appeal. Moreover, in her brief
on appeal, Appellant assails only the trial court’s determination that the
statement at issue was an opinion and not capable of defamatory meaning.
Accordingly, we will proceed with our discussion and review the trial court’s
decision as an order granting preliminary objections in the nature of a
demurrer. See Dominski v. Garrett, 419 A.2d 73 (Pa. Super. 1980)
(stating that where preliminary objections were treated as a demurrer by the
trial court, and where the appellant did not challenge the trial court’s
decision on those grounds, the reviewing court would treat the preliminary
objections as a demurrer; the course of litigation would not be served by
dismissing the objections).
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On appeal, Appellant raises the following issue for this Court’s
consideration:
Whether the Lower Court erred when it sustained
Appellee’s Preliminary Objections where underlying defamatory
facts and an accusation of the crime of Forgery supported
Appellant’s defamation claims and intentional infliction of
emotional distress claim.
Appellant’s Brief at 12 (italicization omitted).
The standard of review we apply when reviewing a trial court’s order
granting preliminary objections in the nature of a demurrer is as follows:
Our standard of review of an order of the trial court overruling or
granting preliminary objections is to determine whether the trial
court committed an error of law. When 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.
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (quoting Haun
v. Community Health Systems, Inc., 14 A.3d 120, 123 (Pa. Super.
2011)).
In order to succeed on a claim of defamation, the plaintiff bears the
following burden of proof:
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(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.
42 Pa.C.S. § 8343(a).
A defamatory statement is defined as follows:
Defamation is a communication which tends to harm an
individual’s reputation so as to lower him or her in the estimation
of the community or deter third persons from associating or
dealing with him or her. Under Pennsylvania defamation law,
only statements of fact can support an action for libel or slander,
not merely expressions of opinion. Further, whether a
particular statement or writing constitutes fact or opinion
is a question of law for the court to determine in the first
instance. Additionally, it is within the trial court’s
province to determine whether the challenged statements
are capable of having defamatory meaning.
Elia v. Erie Ins. Exchange, 634 A.2d 657, 660 (Pa. Super. 1993)
(emphasis added).
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Additionally, in order “to prevail on a claim of intentional infliction of
emotional distress, Appellant[] must prove that [Appellee], by extreme and
outrageous conduct, intentionally or recklessly caused [her] severe
emotional distress.” Brezenski v. World Truck Transfer, 755 A.2d 36, 45
(Pa. Super. 2000).
Appellant argues that Appellee’s grievance letter defamed her
generally, accused her of forgery,2 and as a result of Appellee’s actions she
has suffered from physical manifestations of anxiety and other maladies.
Upon review, we conclude that Appellant is entitled to no relief.
The trial court aptly addressed this issue as follows:
I find that such statements are not capable of a
defamatory meaning because they are only the writer’s opinions
as to how [Appellant] performed her job.
***
In the present case, the statements in the letter were
those of a disgruntled parent regarding an incident between
[Appellant] and [Appellee’s] son as reported by the son. These
are expressions of opinion that may, in fact, be given little
weight because opinions of disgruntled parents, even faculty
member parents, tend to receive little weight. These expressions
of opinion in [Appellee’s] letter are probably less offensive than a
newspaper article accusing a person who holds himself out as a
2
Appellant’s claim that Appellee allegedly accused her of the crime of
forgery and thus defamed her, apparently stems from that part of the
grievance letter wherein Appellee stated that Appellant crossed-out Assistant
Dean Novacky’s signature by making a large “X” across it. Appellant then
links that statement to the part of the grievance letter that stated that
falsification of documents is grounds for dismissal. Appellant’s Brief at 27.
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community activist of land speculation under the guise of being a
community activist.[3]
I am also dismissing [Appellant’s] claims based on the tort
of intentional infliction of emotional distress. To prevail on a
claim of intentional infliction [of] distress, a plaintiff must prove
that the defendant, by extreme and outrageous conduct,
intentionally or recklessly caused severe emotional distress.
Brezenski v. World Truck Transfer, 755 A.2d 36, 45 (Pa.
Super. 2000).
[Appellant] made a large X across the Assistant Dean’s
signature approving a Late Drop. [Appellee] characterized this
conduct as “a falsification of a university document.” However,
this is only defendant’s opinion as to how the behavior should be
characterized. This characterization does not constitute extreme
and outrageous conduct.
Trial Court Opinion, 12/2/13, at 1-3.
We agree with the trial court’s assessment that Appellee’s letter was
merely the opinion of a disgruntled parent, and it was incapable of
defamatory meaning. Elia, 634 A.2d at 660. Moreover, we further agree
that Appellee’s conduct was not outrageous, and therefore, there can be no
cause of action for intentional infliction of emotional distress. Brezenski,
755 A.2d at 45. We discern no abuse of discretion or error of law in the trial
3
The trial court is referencing its earlier discussion of Alston v. PW-
Philadelphia Weekly, 980 A.2d 215 (Pa. Cmwlth. 2009) (stating that a
newspaper article that referred to a neighborhood activist as “no more than
a land speculator who cloaks himself in the guise of a community activist”
was an expression of opinion and not actionable under law) (citing the
Restatement (Second) of Torts §566, Comment C). Trial Court Opinion,
12/2/13, at 2.
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court’s conclusions, and therefore, we affirm the order granting Appellee’s
preliminary objections and dismissing Appellant’s complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2014
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