V.N. Melchiorre v. S. Haileab & the Philadelphia DA's Office ~ Appeal of: S. Haileab ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent N. Melchiorre :
:
v. : No. 741 C.D. 2019
: Argument: November 9, 2020
Simon Haileab and the Philadelphia :
District Attorney's Office :
:
Appeal of: Simon Haileab :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE MICHAEL H. WOJCIK, Judge (P.)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: March 15, 2021
Former Assistant District Attorney (ADA) Simon Haileab (Haileab)
appeals from the March 4, 2019 order of the Court of Common Pleas of Philadelphia
County (trial court) overruling his preliminary objections (POs) to former
Philadelphia County Court of Common Pleas Judge Vincent Melchiorre’s
(Melchiorre) claims of defamation, false light, and tortious interference. Upon
review, we quash the appeal.
On March 19, 2018, Melchiorre filed a complaint in the trial court
against Haileab and the Philadelphia District Attorney’s Office (DA’s Office). At
the time of the events at issue, Melchiorre was a judge appointed to the trial court
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
and Haileab was an ADA. Melchiorre alleges that on March 6, 2017, he met with
Haileab and defense counsel in chambers to discuss the continuance of a trial.
Following that meeting, Haileab allegedly returned to the DA’s Office and told a
Senior ADA that Melchiorre had called the Senior ADA a derogatory and foul name.
Melchiorre alleges that Haileab made the allegation to deflect criticism
by his supervisors for poor job performance. Melchiorre denies that he called the
Senior ADA a derogatory name. Melchiorre alleges that as a result of Haileab’s
statements, the Senior ADA reported the statements to the DA’s Office’s Acting
Chief Integrity Officer, who, in turn, reported the statements to the Deputy DA.
According to the complaint, the Acting Chief Integrity Officer and the Deputy DA
then reported the alleged statement to the Philadelphia Bar Association. Thereafter,
the Philadelphia Bar Association downgraded its endorsement of Melchiorre for
Judge from “recommended” to “not recommended.” Due to the downgrade in the
endorsement, Melchiorre alleges that he lost several other endorsements, resulting
in his loss for a bid for Judge.
The complaint itself set forth causes of action against Haileab for
defamation, placing Melchiorre in a false light, and tortious interference with
contractual relations. The complaint also set forth the same claims against the DA’s
Office, and an additional claim alleging that it is vicariously liable for its employee’s
defamatory publications.
Importantly, the complaint made the following allegations,
incorporated into each cause of action:
61. If [Haileab] was conditionally privileged in his
publication of the defamatory statements, he abused it
and/or it does not apply and/or the publications were made
to unauthorized persons as aforesaid because he delivered
and published the same solely for the purpose of causing
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harm to [Melchiorre], and/or with malice, and/or willfully,
wantonly and with a reckless indifference to the rights of
[Melchiorre], and/or with improper motives, and/or with
reckless disregard for the truth of the matter stated therein
and/or with reckless disregard for [Melchiorre’s] rights,
and/or with gross negligence.
62. Moreover, for the reasons aforesaid, the
publication made by [Haileab] was not made for the
purpose for which a privilege would be given and the
publication was made to a person and persons that were
not reasonably believed to be necessary for the
accomplishment of any purpose for which a privilege
would be given.
63. For the reasons above stated, the publications
made by [Haileab were] not entitled to high public official
immunity for several reasons as stated above and because
the statements made by him did not concern matters that
he was litigating in the [DA’s Office] and did not relate to
a statement made to the public about cases in the office.
64. Moreover, the publications made by [Haileab]
were not made within his or the other members of the
[DA’s] “Official Capacity” because the statements did not
even in the slightest way concern the prosecutorial
functions of the [DA’s Office.]
Reproduced Record (R.R.) at 13a-14a.
Haileab and the DA’s Office filed POs to the complaint. Haileab raised
the defense of high public official immunity and absolute privilege for alleged
defamatory statements made pursuant to a judicial proceeding. The DA’s Office
objected, arguing that the complaint failed to allege that it acted with actual malice
when it reported the alleged statements and that it is entitled to immunity under the
statute commonly referred to as the Political Subdivision Tort Claims Act, 42
Pa. C.S. §§8541-42. Together, Haileab and the DA’s Office demurred to
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Melchiorre’s tortious interference claim on the basis that the complaint failed to
identify any contract with which their alleged actions may have interfered, and that
the complaint failed to allege a causal connection between the alleged defamatory
statements and the loss of Melchiorre’s judicial position. R.R. at 22a-28a.
The trial court sustained the DA’s Office’s POs, dismissing it from the
case, but overruled Haileab’s POs, stating that the facts in the complaint do not
establish that Haileab is entitled to immunity. Rather, the trial court opined that “[it]
may be that as the facts are developed through discovery, [Haileab] might establish
that he is entitled to immunity from this claim, but, at this stage of the proceedings,
we cannot so find with the degree of certainty necessary to sustain these preliminary
objections.” R.R. at 96a. Haileab sought reconsideration of the trial court’s order
and simultaneously filed a notice of appeal with the Superior Court and a motion for
stay in the trial court. On March 26, 2019, the trial court denied Haileab’s motions.2
Id. at 111a.
Haileab, citing Pa. R.A.P. 313, argues that this Court has jurisdiction
over his appeal because: (1) it is an appeal from a collateral order separate from the
main cause of action because it can be resolved without reference to the substance
of the underlying lawsuit; (2) the right involved is too important to be denied review
because absolute immunity for high public officials is necessary because Haileab
was acting in furtherance of some interest of social importance; and (3) if review is
postponed until final judgment, the claim will be irreparably lost because Haileab’s
immunity can be determined on the face of the complaint.
2
The Superior Court transferred the appeal to this Court. In a September 27, 2019
memorandum opinion and order, this Court denied Haileab’s motion for a stay of the proceedings
in the trial court.
4
Melchiorre argues that this Court lacks jurisdiction to consider this
appeal because it is not an appeal from a collateral order as defined by Pa. R.A.P.
313. Citing Sylvan Heights Realty Partners, LLC v. LaGrotta, 940 A.2d 585, 588
(Pa. Cmwlth. 2008), Melchiorre argues that an order relating to absolute immunity
is not a collateral order. Further, Melchiorre asserts that the right involved is not so
important because immunity is normally pled in new matter and reserved for
summary judgment.
Pa. R.A.P. 313(b) provides:
(b) a collateral order is[: (1)] an order separable from and
collateral to the main cause of action[; (2)] where the right
involved is too important to be denied review and[; (3)]
the question presented is such that if review is postponed
until final judgment in the case, the claim will be
irreparably lost.
For an interlocutory order to be deemed to be a collateral order that is
appealable, all three elements must be present. See Fried v. Fried, 501 A.2d 211,
214 (Pa. 1985). It is well settled that “an immunity defense does not, in and of itself,
entitle a litigant to appellate review of an interlocutory order.” Gwiszcz v. City of
Philadelphia, 550 A.2d 880, 881 (Pa. Cmwlth. 1988).
Haileab’s argument that the instant appeal meets all three criteria is
unpersuasive. The denial of Haileab’s POs asserting high public official immunity
is not separable from the main cause of action. Melchiorre’s complaint alleges
specific conduct by Haileab that, if proven, would be outside the scope of his official
duties as an ADA. With no factual development through discovery, it is premature
for this Court to invoke the collateral order doctrine in an attempt to resolve the
immunity question. See Sylvan Heights Realty Partners, LLC, 940 A.2d at 589-90(“Therefore, at the very least, discovery must be undertaken, following which, [the
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defendant] may prevail on a motion for summary judgment. If the matter was to
proceed to trial, the issues of Speech or Debate immunity, and/or legislative
immunity, affirmative defenses that were properly pled, would be subject to
appellate review should [the defendant] not prevail. Under either scenario, the claim
of immunity will not be ‘irreparably lost.’”). Therefore, the trial court order is not
an appealable collateral order.3
Accordingly, Haileab’s appeal is quashed.
MICHAEL H. WOJCIK, Judge
3
Based upon our disposition of this claim, we will not consider the parties’ remaining
arguments on appeal.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent N. Melchiorre :
:
v. : No. 741 C.D. 2019
:
Simon Haileab and the Philadelphia :
District Attorney's Office :
:
Appeal of: Simon Haileab :
ORDER
AND NOW, this 15th day of March, 2021, the appeal of Simon Haileab
from the March 4, 2019 order of the Court of Common Pleas of Philadelphia County
is QUASHED.
__________________________________
MICHAEL H. WOJCIK, Judge