J-A06040-20

CAROLYN FORBES : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KING SHOOTERS SUPPLY, WISTA, : No. 2018 EDA 2019 INC., KING SHOOTERS SUPPLY, : INC., HAVEN BEHAVIORAL : HOSPITAL OF PHILADELPHIA AND : HAVEN BEHAVIORAL HEALTHCARE, : INC. :

Appeal from the Order Entered May 14, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 181001226

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: March 25, 2020

Appellant, Carolyn Forbes, appeals from the order granting the motion

for judgment on the pleadings filed by Appellees King Shooters Supply, Wista,

Inc., and King Shooters Supply, Inc. (collectively “the King appellees”).1 After

a careful review, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 On April 4, 2019, Haven Behavioral Hospital of Philadelphia and Haven Behavioral Healthcare, Inc. (collectively “the Haven defendants”) were dismissed from this action via the entry of a judgment of non pros in their favor pursuant to Pa.R.Civ.P. 1042.7, relating to Appellant’s failure to file a timely Certificate of Merit. On August 1, 2019, the Haven defendants filed in this Court a “Notice of No Interest” indicating that they would not be filing an appellate brief. J-A06040-20

The relevant facts and procedural history are as follows: Appellant

instituted the instant case via a writ of summons on October 10, 2018, and

on December 21, 2018, she filed a civil complaint. Therein, Appellant averred

she purchased a firearm from King Shooters Supply, which is a store located

in King of Prussia, Pennsylvania. She contended she purchased the firearm

for protection due to “her home having been broken into on several

occasions.” Appellant’s Complaint, filed 12/21/18, ¶ 8.2

On January 13, 2017, after deciding it was not wise to keep her gun

loaded, she attempted to remove the bullets from the gun; however, she was

unable to do so. Id. ¶ 9. Appellant averred she was “quite upset at the time

as the pattern of break-ins and attempted break-ins to her home continued.”

Id. ¶ 10.

Accordingly, Appellant returned to King Shooters Supply for additional

assistance, and she advised employees at the store of her concerns. Id. ¶

11. “[Appellant] subsequently learned that employees of King Shooters

[Supply] called the local police and suggested that [Appellant] was in need of

psychiatric intervention.” Id. ¶ 12. Three police officers arrived on the scene

and asked Appellant to accompany them to the Suburban Community

Hospital. Id. ¶ 13.

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2 We note the complaint is not paginated.

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Appellant averred she was then transferred to the Haven Behavioral

Hospital of Philadelphia (“Haven”), where she was admitted. Specifically,

Appellant averred she “was admitted to Haven under Section 201 of the Mental

Health Procedures Act, although her admission was not voluntary,[and during

this] time [she] was advised that Haven could seek an involuntary

commitment under Section 302 of the Act if she did not agree to remain.” Id.

¶¶ 15, 16.

Appellant claimed that, “[a]lthough [Appellant] was admitted as being

allegedly delusional, Haven upon investigation of the concerns expressed by

[Appellant] determined they were true and acquaintances verified she was not

delusional.” Id. ¶ 17. Appellant contended that on several occasions she

indicated her desire to leave, “but Haven continued to threaten to seek an

involuntary commitment and refused to permit her to leave.” Id. ¶ 18.

Appellant argued Haven made “this threat although there is nothing in the

record to indicate [Appellant] exhibited a threat of harm to herself or others

and thus did not meet the criteria for an involuntary commitment.” Id. ¶ 19.

Appellant indicated that, on January 26, 2017, she was discharged from

Haven. She averred she was “held against her will without a Court Order for

13 days.” Id. ¶ 21. She further averred she does not suffer from a psychotic

disorder and at no time was she a danger to herself or others. Accordingly,

she posited that she “did not require inpatient psychiatric treatment and was

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held against her will and against the requirements of the Mental Health

Procedures Act.” Id. ¶ 23.

Based on the aforementioned, Appellant presented six Counts in her

complaint, two of which presented claims against the King appellees.3

Specifically, in Count I, Appellant raised a slander claim against the King

appellees in connection with the statements the King Shooters Supply

employees made to the police. Specifically, Appellant averred the employees’

“[c]ontacting the police and giving unsupported and untrue allegations of

delusional and paranoid behavior was defamatory and harmful to [Appellant].”

Id. ¶ 29.

Further, she averred that, “[a]s a result of the defamatory statements

[made] by the King [Shooter Supply employees], [Appellant] was taken

against her will and was held against her will in a mental health facility for 13

days.” Id. ¶ 31. She indicated she suffered great pain, agony, mental

anguish, and humiliation, as well as economic losses due to the King Shooter

Supply employees’ defamatory statements to the police. Id. ¶¶ 32-34.

In Count II, Appellant raised a claim of vicarious liability against Wista,

Inc., and King Shooters Supply, Inc. Therein, Appellant argued the

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3 In Counts III through VI, Appellant raised claims of negligence, false imprisonment, and vicarious liability in connection with the Haven defendants’ application of the Mental Health Procedures Act. Appellant has presented no claims on appeal with regard to the Haven defendants or the entry of judgment of non pros as to these Counts of the complaint.

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“salespeople, clerks, and other personnel to be determined during discovery

were under the supervision and control of the corporate [appellees] and were

required to adhere to the policies, procedures and regulations promulgated by

said [appellees].” Id. ¶ 36. She contended the King Shooters Supply

employees were acting under the scope of their employment when they made

the alleged defamatory statements to the police. Id. ¶ 37. Accordingly, she

claimed Wista, Inc., and King Shooters Supply, Inc., were vicariously liable for

the injuries caused by the King Shooters Supply employees’ statements to the

police.4

On February 1, 2019, the King appellees filed a motion for judgment on

the pleadings. Therein, they averred the slander and vicarious liability claims

were “predicated upon statements an employee or agent…allegedly made to

the police[;]” however, the alleged defamatory statements were protected by

an absolute privilege. King Appellees’ Motion, filed 2/1/19, at ¶ 27 (citation

omitted).5

In this regard, they averred “[a]ll communications pertinent to any

stage of a judicial proceeding are accorded an absolute privilege which cannot

be destroyed by abuse.” King Appellees’ Motion, filed 2/1/19, at ¶ 27 (citation

omitted). Further, “[t]his privilege attaches to communications made prior to

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4 On January 10, 2019, the King appellees filed an answer with new matter,

and on January 15, 2019, Appellant filed a reply.

5 The motion for judgment on the pleadings was not paginated.

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the institution of proceedings if the communications are ‘pertinent and

material’ and ‘issued in the regular course of preparing for contemplated

proceedings.’” Id. ¶ 28 (citation omitted).

The King appellees reasoned that “statements made to an official

agency, which are designed to induce that agency to initiate action, are

privileged and cannot serve as the basis for the defamation claim.” Id. ¶ 29

(citation omitted). They argued “[Appellant’s] own Complaint asserts that the

statements allegedly made by the employees…, which serve as the basis for

her…claims, were designed to induce the police to request [that Appellant] be

evaluated for mental health concerns.” Id. ¶ 30 (citation omitted).

Accordingly, the King appellees contended that, as a matter of law, any

statements allegedly made by the King Shooter Supply employees to the local

police could not give rise to liability for slander in the case sub judice.

Additionally, the King appellees argued they were entitled to judgment

on the pleadings because the alleged statements were incapable of a

defamatory meaning. In this regard, the King appellees averred “[a]ll of the

alleged communications by [the] employee to the police, even if accepted as

true, are either expressions of opinion, or intended to impart the factual basis

upon which the employee was forwarding his or her opinion, and therefore

cannot be slanderous as a matter of law.” Id. ¶ 37.

Additionally, they contended “an essential element of a claim for slander

is the understanding, by the recipient of the communication, of the

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communication’s defamatory meaning.” Id. ¶ 38 (citation omitted). They

averred “[e]ven if the allegations of [Appellant’s] Complaint are accepted as

true, the statements, as a matter of law, could not have been understood by

law enforcement agents as defamatory in meaning” since it is a fundamental

function of law enforcement to receive reports regarding mental health

emergencies. Id. ¶ 40.

On February 21, 2019, Appellant filed an answer to the motion for

judgment on the pleadings. By order entered on March 14, 2019, the trial

court granted, in part, and denied, in part, the King appellees’ motion for

judgment on the pleadings. Specifically, the trial court granted the motion in

favor of the King appellees as to Count I (slander) of the complaint; however,

the trial court denied the motion as to Count II (vicarious liability) of the

complaint. The trial court directed that discovery should proceed as to Count

II.

On April 12, 2019, the King appellees filed a motion for reconsideration

of the trial court’s March 14, 2019, order. Moreover, on April 15, 2019, the

King appellees filed a motion to amend the March 14, 2019, order to include

language permitting them to file an immediate appeal from the interlocutory

order. See Pa.R.A.P. 1311; 42 Pa.C.S.A. § 702(b). Appellant filed a reply to

both motions.

By order filed on April 24, 2019, the trial court vacated its March 14,

2019, order as to Count II of the complaint only. The trial court specifically

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indicated it would reconsider the motion for judgment on the pleadings and

then issue a ruling.6

By order entered on May 14, 2019, the trial court granted the King

appellees’ motion for judgment on the pleadings in its entirety. The trial court

specifically noted Count II of the complaint was dismissed with prejudice. In

its supporting May 14, 2019, opinion, the trial court indicated it granted the

King appellees’ motion on the basis the statements the King Shooter Supply

employees made to law enforcement officers were absolutely privileged.

Thus, the trial court concluded the statements could not provide a basis for a

claim of defamation or vicarious liability predicated thereupon.7

On June 10, 2019, Appellant filed a notice of appeal to this Court. The

trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement, and

consequently, no such statement was filed. However, the trial court filed a

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6 There is no dispute that the March 14, 2019, order was not a final order.

See Pa.R.A.P. 341. Since the March 14, 2019, order was interlocutory, the trial court was permitted to vacate and modify the order after the expiration of the thirty days after its entry. See Commonwealth v. James,

,

(2013) (holding trial court is empowered to grant reconsideration of an interlocutory order beyond 42 Pa.C.S.A. 5505’s 30-day period for modification); Hutchison by Hutchison v. Luddy,

(Pa.Super. 1992) (“Where an order does not effectively place the litigant out of court or end the lawsuit, it is within the trial court’s discretion to entertain a motion to reconsider the interlocutory order outside the 30–day time limit set forth in 42 Pa.C.S.A. § 5505.”).

7 On May 14, 2019, the trial court also denied the King appellees’ motion to

amend as moot.

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brief Pa.R.A.P. 1925(b) opinion on August 6, 2019, in which it referenced its

May 14, 2019, opinion.

On appeal, Appellant contends the trial court erred in granting the King

appellees’ motion for judgment on the pleadings as to Counts I and II of her

complaint. Specifically, Appellant contends the King Shooters Supply

employees’ statements, which were made to the police suggesting that

Appellant “was in need of psychiatric intervention,” were false, defamatory,

and not protected by an absolute privilege. See Appellant’s Brief at 12.

Our standard of review for the grant or denial of judgment on the

pleadings is equally well-settled:

The standard to be applied upon review of a motion for judgment on the pleadings accepts all well-pleaded allegations of the complaint as true. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Tucker v. Philadelphia Daily News,

,

(2004)

(quotation and quotation marks omitted).

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. The scope of review on an appeal from the grant of judgment on the pleadings is plenary. We must determine if the action of the court below was based on clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.

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Donaldson v. Davidson Bros., Inc.,

(Pa.Super. 2016)

(quotation omitted).

By way of background, in an action for defamation, the plaintiff must prove: (1) the defamatory character of the communication; (2) publication by the defendant; (3) its application to the plaintiff; (4) understanding by the recipient of its defamatory meaning; (5) understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm to the plaintiff; and (7) abuse of a conditionally privileged occasion. When relevant to the defense, the defendant has the burden of proving (1) the truth of the defamatory communication; (2) the privileged character of the occasion on which it was published; and (3) the character of the subject matter of defamatory comment is of public concern. Depending upon the importance of the publisher’s actions to society, the privilege may be absolute or conditional/qualified.

Miketic v. Baron,

(Pa.Super. 1996) (citing 42 Pa.C.S.A.

§ 8343(a), (b)) (citations, quotations, quotation marks, and footnote

omitted).

Liability for publication of defamatory matter may be defeated by a privilege to publish the defamation. One who publishes defamatory matter within the scope of an absolute privilege is immune from liability regardless of occasion or motive. However, such a privilege may be lost if the publisher exceeds the scope of his privilege by publishing the defamation to unauthorized parties.

Davis v. Resources for Human Development, Inc.,

(Pa.Super. 2001) (quotation and quotation marks omitted). “Whether a

particular statement is absolutely privileged is a question of law for the court.”

Pawlowski v. Smorto,

(Pa.Super. 1991) (citation omitted).

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In the case sub judice, we examine the trial court’s conclusion that the

King Shooter Supply employees had an absolute privilege to call the local

police and suggest that Appellant was in need of psychiatric intervention.8

Initially, as our Supreme Court recognized:

Pennsylvania law closely guards the ability of a person whose reputation has been injured by defamatory statements to obtain redress for such injury….At the same time, there is a fundamental societal need for justice to be administered freely and efficiently through the eliciting of speech from parties and witnesses that may be accusatory or otherwise reflect negatively upon another’s character. Thus, notwithstanding any reputational harm that may ensue, Pennsylvania, like many other jurisdictions, recognizes a judicial privilege providing immunity for communications which are made in the regular course of judicial proceedings and are material to the relief sought. The privilege covers statements by a party, a witness, an attorney, or a judge. Furthermore, the privilege is absolute, meaning that, where it attaches, the declarant’s intent is immaterial even if the statement is false and made with malice. The judicial privilege serves an essential function in guaranteeing access to the courts and permitting the free articulation and resolution of legal claims. Hence, its purpose is to allow participants in judicial proceedings to speak freely without fear of civil liability.

Schanne v. Addis,

,

(2015) (citations and

footnotes omitted).

The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also extended to parties to afford freedom of access to the courts, to

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8 In light of our discussion infra, we find it unnecessary to determine whether

the statements made by the King Shooter Supply employees to the local police were defamatory in nature under 42 Pa.C.S.A. § 8343(a).

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witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client's interests. Likewise, the privilege exists because the courts have other internal sanctions against defamatory statements, such as perjury or contempt proceedings.

Miketic,

(quotation and citations omitted).

“Importantly, the existence of the privilege does not depend upon the

motive of the defendant in making the allegedly defamatory statement. The

privilege is absolute and cannot be destroyed by abuse.” 9 Marino v. Fava,

(Pa.Super. 2006) (quotation omitted) (footnote added).

Moreover, the privilege is not limited to statements made in open court, but

encompasses pleadings as well. See

This Court has

extended the privilege further to “even less formal communications such as

preliminary conferences and correspondence between counsel in furtherance

of the client’s interest.” Pawlowski,

.

Additionally, in

in consideration of the policies

underlying the judicial privilege, we extended the privilege to statements

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9 An absolute privilege may be lost through over-publication, i.e. publication

of the defamatory material to unauthorized persons. See Agriss v. Roadway Exp., Inc.,

, 463 (Pa.Super. 1984). “In the case of the judicial privilege, over-publication may be found where a statement initially privileged because made in the regular course of judicial proceedings is later republished to another audience outside of the proceedings.” Pawlowski,

(citation omitted). In the case sub judice, the employees’ statements were made to local police, who then apparently repeated the statements to mental health hospital officials. In light of the precedent discussed infra, this did not constitute “over- publication.” See

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made to the police, as well as to the district attorney. We specifically held

“the scope of the absolute judicial privilege…applies to private parties involved

in providing information to the proper authorities in connection with the

suspected commission of a crime.”

. In this vein, we reasoned:

As stated above, according absolute privilege to statements made in or preliminary to judicial proceedings aim at ensuring free and uninhibited access to the judicial system. This policy is obviously served by application of the privilege to statements made solely to law enforcement officials for the purpose of initiating criminal charges. Although such statements may ultimately prove to be false or maliciously motivated, the same may be said of statements made by a party who consults with his or her attorney preliminary to instituting a civil action, or of statements made by counsel in preliminary conferences or negotiations on their client’s behalf. Nevertheless, such statements are deemed to be absolutely privileged because the policy concerns stated above outweigh the right of the defamation plaintiff to seek redress for harm caused by the statements.

(citation omitted). Accordingly, in Pawlowski, we accorded

absolute privilege to the statements, which amounted to an accusation of a

crime, made to law enforcement officials.

Additionally, in

this Court examined the absolute

privilege in connection with statements made to the police and mental health

officials regarding the involuntary commitment of the plaintiff. Specifically, in

Marino, the plaintiff’s uncle reported to the police that the plaintiff had “pulled

a gun on him” and, in response to the police’s suggestion, the uncle “filled out

an application to have [the plaintiff] involuntarily committed[.]”

.

In holding the uncle’s statements to the police and mental health

officials were accorded an absolute privilege, this Court concluded the uncle

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“was nothing more than a witness in [the plaintiff’s] involuntary commitment

proceeding.”

. Specifically, we held that just as the statements

made in Powlowski, which accused the plaintiff of a crime, were absolutely

privileged, so too were the statements the uncle in Marino made to the police

and mental health officials regarding the initiating of involuntary commitment

proceedings against the plaintiff. We noted that, “[a]lthough such statements

may ultimately prove to be false or maliciously motivated, they are deemed

to be absolutely privileged because the policy concerns…outweigh the right of

the defamation plaintiff to seek redress for alleged harm caused by the

statements.” Marino,

(citation omitted).

Similarly, in the case sub judice, we conclude the statements the King

Shooters Supply employees made to the police suggesting “that [Appellant]

was in need of psychiatric intervention”10 were absolutely privileged. As the

trial court indicated, “Pennsylvania’s policy concerns outweighs the right of

[Appellant] to seek redress.” Trial Court Opinion, filed 5/14/19, at 3. Thus,

accepting as true all well-pleaded allegations in Appellant’s complaint, we

conclude the King appellees were immune from Appellant’s slander claim.11

____________________________________________

10 See Appellant’s Complaint at ¶ 12.

11 In Mamalis v. Atlas Van Lines, Inc.,

,

(1989), the Supreme Court held that “[a] claim of vicarious liability is inseparable from the claim against the agent since any cause of action is based on the acts of only one tortfeasor.” In the case sub judice, the King Shooter Supply employees’ statements were protected by an absolute privilege;

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See

Accordingly, the trial court did not err

in granting the King appellees’ motion for judgment on the pleadings.

For all of the aforementioned reasons, we affirm.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/25/20

____________________________________________

accordingly, the corporate King appellees cannot be vicariously liable for the protected statements.

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