Pilchesky v. Gatelli

• Decision Date: 05 January 2011
• Citation: 12 A.3d 430,2011 PA Super 3
• Parties: Joseph PILCHESKY, Appellantv.Judy GATELLI, as President of Scranton's City Council; as Councilwoman; and, in her individual capacity, Appelleev.Joanne Pilchesky and John Does.Joseph Pilchesky, Appelleev.Judy Gatelli, as President of Scranton's City Council; as Councilwoman; and, in her individual capacity, Appellantv.Joanne Pilchesky and John Does.
• Court: Pennsylvania Superior Court

12 A.3d 430

2011 PA Super 3

Joseph PILCHESKY, Appellant

v.Judy GATELLI, as President of Scranton's City Council; as Councilwoman; and, in her individual capacity, Appellee

v.Joanne Pilchesky and John Does.Joseph Pilchesky, Appellee

v.Judy Gatelli, as President of Scranton's City Council; as Councilwoman; and, in her individual capacity, Appellant

v.Joanne Pilchesky and John Does.

Superior Court of Pennsylvania.

Argued Oct. 21, 2009.Filed Jan. 5, 2011.

Joseph Pilchesky, pro se.Molly D. Clark, Scranton, for Gatelli.BEFORE: FORD ELLIOTT, P.J., FREEDBERG and COLVILLE ^*, JJ.OPINION BY FREEDBERG, J.:

Joseph Pilchesky (“Appellant”) appeals from the order of the trial court entered on October 1, 2008, directing him to disclose the identities of six John Doe defendants who appellee and cross-appellant Judy Gatelli (“Appellee”) claims have pseudonymously published defamatory statements about her on an Internet message board hosted by Appellant. Appellee cross-appeals the order, seeking the identities of eight additional John Doe defendants. We quash the appeals in part, vacate the order and remand.

Appellant maintains a website located at www. dohertydeceit. com. The site publishes articles critical of the city government of Scranton, Pennsylvania. Attached to the site is the self-styled, “Scranton Political Times Message Board,” where interested persons may observe ongoing discussions or may create a registered user account and participate in those discussions. Registered users select a unique username, or “pseudonym.” Only registered users may post a message to the message board, and every posted message is attributed to a registered user's pseudonym. Appellant maintains a list of registered users and their message board pseudonyms. However, as messages are attributed only to pseudonyms, the true identity of the person posting the message is unknown to those viewing Appellant's message board. Certain of these message posts to Appellant's message board are the subject of this appeal and cross-appeal.

In April 2007, Appellant filed a complaint against Appellee, claiming defamation, retaliation and harassment. According to Appellant, Appellee, formerly the president of Scranton City Council,¹ falsely and publicly accused him of “terrorism, making death threats, stalking, harassment, harassment by communication [and] intimidation” in the course of his political activities and the operation of his website.

In response, Appellee filed an answer and counterclaim, claiming defamation, civil conspiracy, intentional infliction of emotional distress and abuse of process. According to Appellee, Appellant published numerous defamatory statements via his website, resulting in “injury to her good name and reputation ... personal humiliation and embarrassment.” Counterclaim, at ¶ 8. Appellee also filed a joinder complaint against Joanne Pilchesky, Appellant's wife, and approximately one hundred John Doe defendants, claiming defamation, civil conspiracy and intentional infliction of emotional distress. Contemporaneous to her joinder complaint, Appellee filed a petition to compel the disclosure of the identity of the John Doe defendants and a petition to prevent Appellant or his wife from destroying information relevant to this matter.

On May 24, 2007, the trial court issued a rule returnable, directing Appellant to show cause why Appellee's petition to compel should not be granted and, pending further order of court, precluding Appellant from “deleting, purging or otherwise disposing of any documents” concerning Appellee or the identity of the John Doe defendants. On June 14, 2007, Appellant filed preliminary objections on various grounds.

On September 26, 2007, the trial court heard oral argument on Appellee's petition and Appellant's preliminary objections.² The trial court denied the preliminary objections on October 10, 2007. Also on October 10, 2007, the trial court denied without prejudice Appellee's petition to compel for failure to provide sufficient information to warrant the disclosure of the identity of the John Doe defendants. The trial court ordered Appellee to file an amended petition, which specified the following:

(a) [T]he pseudonym of each additional defendant;

(b) [T]he complete message containing the actionable words posted by each additional defendant;

(c) [T]he cause or causes of action that she alleges based on those words;

(d) [E]vidence sufficient to establish a prima facie case against each additional defendant supported by affidavit; [and]

(e) [A]n affidavit asserting that the information is sought in good faith and is unavailable by alternative means.

Further, as Appellant maintained email contact information for each registered user of his website, the trial court ordered Appellant to forward to each John Doe defendant a copy of the trial court's order, Appellee's amended petition and all materials relevant to the additional defendant. Upon receipt of the amended petition and relevant materials, the trial court provided that it would grant each John Doe defendant thirty days to file an objection to disclosure of his identity. Finally, the trial court ordered Appellant to continue to comply with its order for the preservation of evidence.

On March 20, 2008, Appellee filed an amended petition, seeking disclosure of the identity of forty-six John Doe defendants. Attached to her amended petition, Appellee provided a single affidavit which addressed the trial court's requirements. Appellant objected to the disclosure of identity of any additional defendant. The attorney for the represented Doe defendants filed objections to disclosure on behalf of his clients whose identities were sought. No objections were filed by any of the unrepresented John Doe defendants. On October 1, 2008, the trial court issued a memorandum and order, granting the amended petition in part and directing Appellant to disclose the identity of six John Doe defendants.³ The trial court did not direct the disclosure of the identity of any of the represented Doe defendants.

Appellant timely filed a notice of appeal of the October 1, 2008 order in the Commonwealth Court. Appellee filed a cross-appeal of the same order.⁴ The appeals were consolidated and transferred to this Court.

Appellant presents the following questions for review:

1. [Whether the] trial court err[ed] at law or abuse[d] its discretion where it ordered the Appellant to disclose the identities of six (6) anonymous posters on the Appellant's political message board where the statements made by the posters were constitutionally protected by the First Amendment[; and]

...

2. [Whether the] trial court err[ed] at law or abuse[d] its discretion where it ordered the Appellant to disclose the identities of six (6) anonymous posters who used the Appellant's political message board to opinionate about the Appellee where discovery was in process that was already favorable to showing that the Appellee is unable to state a cause of action upon which relief can be granted relating to failure to show damages or injury[.]

Appellant's Brief, at 4.⁵

As to her cross-appeal, Appellee presents the following issue:

Whether or not the Court of Common Pleas of Lackawanna County abused its discretion by refusing to compel the disclosure of the identities of the following Appeal Defendants and Cross–Appeal Defendants: John Doe a/k/a Antisystemicmovements; John Doe a/k/a Bobby McGoof; John Doe a/k/a Brainwashed; John Doe a/k/a History Writer; John Doe a/k/a Milo Ferlicker; John Doe a/k/a NoRepresentation; John Doe a/k/a The Mole; and John Doe a/k/a City Haul[.]

Appellee's Brief, at 2.

Before addressing the merits of the questions presented, we must determine whether the order of the trial court is appealable,⁶ as this implicates the jurisdiction of the Court.⁷ We may do so sua sponte. In re Miscin, 885 A.2d 558, 561 (Pa.Super.2005).

“Generally, discovery orders are deemed interlocutory and not immediately appealable because they do not dispose of the litigation.” Leber v. Stretton, 928 A.2d 262, 265 (Pa.Super.2007), citing Makarov v. Lukenda, 856 A.2d 163 (Pa.Super.2004), appeal denied, 596 Pa. 733, 945 A.2d 172 (2008); Crum v. Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578 (Pa.Super.2006) (addressing the appealability of a pretrial discovery order). However, “[a]n appeal may be taken as of right from a collateral order of ... [a] lower court.” Pa.R.A.P. 313(a); Pridgen v. Parker Hannifin Corp., 588 Pa. 405, 905 A.2d 422 (2006); Melvin v. Doe, 575 Pa. 264, 836 A.2d 42, 47 (2003) (“ Melvin II ”); Crum, 907 A.2d at 584 (granting review of a discovery order deemed collateral to the underlying cause of action).

A collateral order is an order [1] separable from and collateral to the main cause of action where [2] 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.

Pa.R.A.P. 313(b). All three factors must be present before an order may be considered collateral. Melvin II, 836 A.2d at 47; Crum, 907 A.2d at 583, citing J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa.Super.2004).

In Melvin II, the Pennsylvania Supreme Court determined that a trial court discovery order, which directed the disclosure of the identity of several John Doe defendants in a defamation claim brought by a public official, raised a question entitled to collateral review. Melvin II, 836 A.2d at 44–45 (vacating an order of the Superior Court, which had quashed an appeal of the discovery order). Crucial to its decision, the Supreme Court determined that the question presented was separable from the main cause of action:

Consideration of whether a harmful defamatory statement was made (i.e., publication, falsity, defamatory meaning, actual malice, and actual harm) is not necessary. Rather, the issue ... present[ed] ... [is] strictly a legal one, entailing consideration of...