B.J. Chasan v. C.R. Stevens

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce J. Chasan, :

Appellant :

:

v. :

:

Correale F. Stevens, Carolyn H. : No. 169 C.D. 2021

Nichols, and Mary P. Murray : Argued: June 23, 2022

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: July 26, 2022

Bruce J. Chasan (Chasan) appeals from the January 25, 20211 order of

the Philadelphia County Court of Common Pleas (trial court) sustaining preliminary

objections filed by three judges of the Pennsylvania Superior Court to an amended

complaint filed by Chasan and dismissing the amended complaint with prejudice.

Upon review, we affirm.

1

The trial court dated the order January 20, 2021 and docketed the order on January 25,

2021. See Trial Ct. Order, 1/25/21. Chasan timely appealed to this Court on February 23, 2021.

See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of appeal required

by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order

from which the appeal is taken.”).

I. Background

The amended complaint dismissed by the trial court contained one

count—a claim alleging defamation on the basis of an opinion authored by the

Honorable Correale F. Stevens and joined by the Honorable Carolyn N. Nichols and

the Honorable Mary P. Murray (collectively, Judges) in the matter of Law Office of

Bruce J. Chasan and Bruce Chasan, Esq. v. Freundlich & Littman LLC and Gregory

Littman, Esq. (Pa. Super., No. 2928 EDA 2016, filed Jan. 29, 2019)2 (Judicial

Opinion). The following is a brief recitation of the relevant factual and procedural

background pertaining to the Judicial Opinion and the ensuing defamation litigation.

Chasan previously served as counsel for Edward Feierstein (Feierstein),

the defendant in a property damage dispute. See Am. Complaint, 10/25/20 at 10-11,

¶¶ 30-31, Reproduced Record (R.R.) at 26a-27a. In early 2014, opposing counsel,

Gregory Littman (Littman), sent two letters to Chasan and four other individuals and

one letter to a trial court judge, who had previously been assigned to decide motions

in the matter, containing various allegations that Chasan had engaged in unethical

conduct over the course of litigating the property damage dispute.3 See id. at 13-15,

2

Chasan asserts that, though previously identified as Freunslich & Littman, the firm’s

correct name is in fact Freundlich & Littman, and that “[t]his error was made somewhere in the

litigation and went uncorrected.” Chasan’s Br. at 6 n.4.

3

Specifically, the first letter alleged that Chasan and Feierstein had engaged in witness

intimidation by informing Littman’s brother (who had been subpoenaed to testify in a separate,

unrelated criminal trial against Feierstein) of their intent to sue Littman. See Am. Complaint,

10/25/20 at 13, ¶ 46, R.R. at 29a. This letter further questioned Feierstein’s participation in the

property damage litigation when he had “recently” claimed mental incompetence in order to

abstain from participating in the separate criminal proceedings and had checked himself into a

mental health facility. See id. The second letter expressed Littman’s intent to file an ethics

complaint in the event that Chasan continued to represent Feierstein and alleged that Feierstein

had defrauded the trial court. See id. at 14-15, ¶ 49, R.R. at 30a. This letter further asserted that

Chasan had abused the legal process for purposes of intimidation. See id. In the third letter,

2

¶¶ 46, 49 & 51, R.R. at 29a-31a. In 2015, Chasan sued Littman and Littman’s law

firm for defamation on the basis of these letters. See id. at 10, ¶ 30, R.R. at 26a.

Chasan, Littman, Littman’s brother and several of the recipients of Littman’s letters

provided deposition testimony. See id. at 16, ¶ 54, R.R. at 32a. At close of

discovery, Littman filed a motion for summary judgment, which the trial court

granted in August 2016. See id. at 17, ¶ 55 & 58, R.R. at 33a.

Chasan appealed to the Pennsylvania Superior Court, which affirmed

the trial court’s grant of summary judgment through the Judicial Opinion.4 See

Judicial Opinion at 1-17, R.R. at 59a-75a. In January 2020, Chasan filed a complaint

against Judges requesting declaratory relief on the basis of certain allegedly

defamatory statements contained in the Judicial Opinion. See Complaint, 1/27/20 at

2, ¶ 5, Original Record (O.R.) at 9. Trial Ct. Docket at 3, R.R. at 3a. Judges filed

preliminary objections, which the trial court sustained, dismissing Chasan’s claims

without prejudice on grounds of judicial immunity, sovereign immunity and judicial

privilege. Trial Ct. Docket at 11, R.R. at 11a. In November 2020, Chasan filed an

amended complaint requesting that the trial court “issue a decision . . . holding that

[he] was defamed by [the Judicial Opinion].”5 See Am. Complaint, 10/25/20 at 39-

Littman informed the trial court of his belief that Chasan and Feierstein were acting in bad faith

and requested that the court hold a conference between the parties. See id. at 15, ¶ 51, R.R. at 31a.

4

The Superior Court initially denied the appeal on the basis that Chasan had waived the

issues sought to be appealed. See Am. Complaint, 10/25/20 at 24, ¶ 81, R.R. at 40a. Chasan

appealed to the Pennsylvania Supreme Court, which remanded the matter to the Superior Court

for consideration of the merits of the appeal. See id. at 25, ¶ 86, R.R. at 41a.

5

In his prayer for relief, Chasan requested that the trial court “issue a decision in [his] favor

. . . holding that [he] was defamed by [the Judicial Opinion] . . . in at least the following holdings”:

(a) The finding that “Chasan could not identify any statements in

[Littman’s] correspondence . . . that were untrue.” . . .

3

40, R.R. at 55a-56a; see also Trial Ct. Docket at 12, R.R. at 12a. Chasan requested

as “an appropriate remedy” the issuance of “a non-jury decision that [he] can prove

the elements of a defamation claim (42 Pa.C.S.[] § 8343(a))” on the basis of “a

number of defamatory ‘factual’ statements made by [Judges] . . . without

jurisdiction.” Am. Complaint, 10/25/20 at 2 & 5-6, ¶¶ 5 & 16, R.R. at 18a-19a &

21a-22a. Chasan clarified that he “[did] not seek monetary damages for the harm,”

although he “intend[ed] to prove all elements of a defamation claim within the

meaning of 42 Pa.C.S.[] § 8343(a).” Id. at 2-3, ¶ 5, R.R. at 18a-19a. Chasan asserted

that “[s]uch relief is a pseudo-declaratory judgment, albeit it is not pursuant to the

Declaratory Judgment[s] Act.”6 Id. at 6, ¶ 16, R.R. at 22a. Chasan further specified

that he “does not seek reversal of the [Judicial Opinion].” Id. at 3, ¶ 5, R.R. at 19a.

(b) The finding that [] Littman had a reasonable belief that Chasan

was both aware of and participating in [] Feierstein’s acts of witness

intimidation. . . .

(c) The finding that Chasan was involved in an unethical scheme to

conceal from the trial court that Feierstein was incompetent to sign

a verification for an answer, new matter and counterclaim to the

[c]omplaint filed [in the property damage case] . . . seeking damages

from Feierstein for allegedly causing a water leak that damaged their

condo unit.

Am. Complaint, 10/25/20 at 39-40, R.R. at 55a-56a (quoting Judicial Opinion at 16). Elsewhere

in the amended complaint, Chasan challenged the statement in the Judicial Opinion that

“deposition testimony evince[d] that [] Littman had a reasonable belief that [] Feierstein’s signed

verification in support of the counterclaim in the [property damage case] was not valid and that

the counterclaim itself had been filed for an improper purpose.” Id. at 35, ¶ 89, R.R. at 41a (quoting

Judicial Opinion at 11, R.R. at 69a). The other excerpts from the Judicial Opinion singled out by

Chasan largely consisted of Judges’ recitation of deposition testimony and other evidence provided

in connection with Chasan’s defamation suit against Littman. See, e.g., id. at 27 & 34, ¶¶ 95 &

118, R.R. at 43a & 50a (citing Judicial Opinion at 9-10 & 23).

6

42 Pa.C.S. §§ 7351-7541.

4

On December 15, 2020, Judges filed preliminary objections to

Chasan’s amended complaint, asserting the defenses of judicial immunity, judicial

privilege, sovereign immunity and high public official immunity and contending that

Chasan failed to state a claim for declaratory relief. See Preliminary Objections,

12/15/20 at 1-23, O.R. at 983-1005. Chasan and Judges filed a joint stipulation

indicating their agreement to extend the deadline to respond to Judges’ preliminary

objections to February 4, 2021 due to the upcoming relocation of Chasan’s office.

See Stipulation at 1-2, O.R. at 1041-42. However, on January 20, 2021, the trial

court denied the extension and sustained Judges’ preliminary objections for the

reasons set forth by this Court in the unrelated matter Chasan v. Platt, 244 A.3d 73

(Pa. Cmwlth. 2020) (Chasan I),7 thereby dismissing Chasan’s amended complaint

with prejudice and without leave to file further amendments. Trial Ct. Order,

1/25/21, R.R. at 107a. Id. Chasan thereafter appealed to this Court. See Notice of

Appeal, 2/23/21.8

7

In Chasan I, this Court affirmed the trial court’s determination that the doctrine of judicial

immunity barred Chasan’s claim alleging defamatory content in a judicial opinion rendered by

three other Superior Court judges in the matter of Carmen Enterprises, Inc. v. Murpenter, LLC,

185 A.3d 380 (Pa. Super. 2018). See Chasan I, 244 A.3d at 76 & 84. We also affirmed the trial

court’s decision to sustain Judges’ demurrer on the basis that Chasan failed to state a cognizable

claim for declaratory relief. See id. at 84. Carmen had disposed of cross-appeals contesting the

amount of attorney’s fees awarded for Chasan’s work on behalf of a travel agency of which he was

president and sole shareholder. See id. at 76.

8

On March 26, 2021, Chasan filed an application for relief requesting, inter alia, that this

Court issue an order directing the trial court to issue an opinion expounding upon its January 25,

2021 order, and compelling the trial court to order Chasan to file a statement of errors complained

of on appeal. See Appl. for Relief, 3/26/21 at 3 (citing Pa.R.A.P. 1925(a), (b)). We denied

Chasan’s request by order dated April 16, 2021. See Cmwlth. Ct. Order, 4/16/21.

5

II. Issues

Determining whether the doctrine of judicial immunity bars a claim

“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).

Before this Court,9 Chasan argues that the trial court erred in

determining that the doctrine of judicial immunity barred his claim against Judges.

See Chasan’s Br. at 33. Chasan alleges that Judges rendered fact-finding and

credibility determinations in the Judicial Opinion and that doing so did not constitute

a judicial act. Id. at 43-44 (citing Petition of Dwyer, 406 A.2d 1355, 1361 (Pa.

1979)).10

9

An appellate court’s standard of review of an order of the trial court sustaining or

overruling preliminary objections is to determine whether the trial court committed an error of

law. Freundlich & Littman, LLC v. Feierstein, 157 A.3d 526, 530 (Pa. Super. 2017). A court may

sustain preliminary objections only when, based on the facts pleaded, it is clear and free from doubt

that the plaintiff will be unable to prove facts legally sufficient to establish a right to

relief. Feldman v. Hoffman, 107 A.3d 821, 826 n.7 (Pa. Cmwlth. 2014). In evaluating the legal

sufficiency of a challenged pleading, the court must accept as true all well-pleaded material and

relevant facts alleged in the complaint and every inference that is fairly deducible from those facts.

Id. The court, however, is not bound by legal conclusions, unwarranted inferences from facts,

argumentative allegations, or expressions of opinion encompassed in the challenged pleading.

Thomas v. Corbett, 90 A.3d 789, 794 (Pa. Cmwlth. 2014). Whether a particular immunity applies

is a question of law as to which our standard of review is de novo and our scope of review is

plenary. Feldman, 107 A.3d at 826 n.7.

10

Chasan also asserts that a judge’s conduct cannot constitute a judicial act in the absence

of subject matter jurisdiction: “[s]imply put: no jurisdiction, no judicial act.” Chasan’s Br. at 39

(citing Langella, 34 A.3d at 839). Chasan points out that in Langella, the Superior Court held that

a judge failed to establish immunity from suit where he “lacked jurisdiction over the subject matter

before him and [] his actions were not judicial acts.” Id. In Langella, however, the judge’s conduct

that was not subject to immunity occurred in a private meeting in his chambers with a former

litigant. There was no longer a pending case, so the judge had no jurisdiction over the former

litigant and, by definition, was not engaged in any judicial acts. Id. at 839-40. Here, by contrast,

Chasan complains about language in a written judicial opinion, the quintessential function of an

appellate judge.

6

Further, Chasan contends that, despite possessing subject matter

jurisdiction over his appeal, Judges acted without jurisdiction when they “usurped”

the trial court’s authority by rendering factual findings and credibility

determinations. See id. at 33-40 (citing Bradley v. Fisher, 80 U.S. 335, 351-52 &

357 (1872); Stump v. Sparkman, 435 U.S. 349, 356 n.6 (1978)). Chasan maintains

that the Judicial Opinion “was not just appalling, it was libelous and made without

jurisdiction” because Judges “tried the case on the summary judgment record as if

they were a court of original jurisdiction.” Id. at 59. For instance, Chasan contends

Judges usurped a jury function and improperly found as fact that Littman had a

“reasonable belief” that Chasan was involved in unethical conduct and, thus,

concluded that Chasan was “guilty” of professional misconduct, including witness

intimidation. Id. at 37 & 58-59. Chasan also contends that Judges’ “efforts devolved

into prohibited fact-finding and credibility assessments, which were outside [their]

jurisdiction,” because Judges cited record evidence in support of the trial court

decision when the trial court judge had “cited no evidence whatsoever from the

summary judgment record.” Id. at 45. Further, Chasan maintains that in rendering

the Judicial Opinion, Judges performed “quintessential jury functions” by

“decid[ing] what they would give weight to and what they would ignore” in

affirming the trial court’s grant of summary judgment. Id. at 37. Asserting that

“Judges totally disregarded [his] evidence en route to making their own findings of

fact” and “cherry-picked” portions of “the summary judgment record to fashion a

decision in [] Littman’s favor,” Chasan contends that, instead, Judges “simply

[sh]ould have evaluated [his] evidence and decided whether it was sufficient to show

7

disputes of material fact[.]” Id. at 36-37 & 44.11 Thus, Chasan maintains that he

“had no satisfactory appellate remedy once the [Judicial O]pinion was issued,”

insisting that “[t]his Court should not shrink from a searching review of [Judges’]

conduct in this case and [should] call it out as impermissible and non-jurisdictional

misconduct.” Id. at 45 & 60.

Further, Chasan contends that his request for a “non-jury decision”

establishing his ability to prove the elements of a defamation claim does not

constitute a request for declaratory judgment “within the meaning of the Declaratory

Judgment[s] Act.” Id. at 47 (citing Am. Complaint, 10/25/20 at 2, ¶ 5, R.R. at 18a-

19a). Rather, Chasan contends that “[w]hat is sought is a non-jury ‘decision’ as

described in Pa.R.Civ.P. 238(a)(1).”12 Id. at 47. Moreover, Chasan contends that

the trial court should have overruled Judges’ preliminary objections due to Judges’

failure to separately plead judicial immunity as an affirmative defense. Id. at 54.

Chasan also asserts that the trial court’s “precipitous dismissal” of his amended

complaint before he had the opportunity to respond to Judges’ preliminary

objections “was procedurally defective and unfair,” as he had not waived the right

to object to Judges’ preliminary objections.13 Id. at 55-56. Chasan maintains that

11

Chasan posits that Judges would have comported with the appellate jurisdiction of the

Superior Court by holding simply: “We affirm on the basis of [the trial court judge’s] reasoning in

her [Pa.R.A.P.] 1925(a) opinion.” Chasan’s Br. at 44-45.

12

We observe that Pennsylvania Rule of Civil Procedure 238(a)(1) does not provide for

the type of “non-jury decision” requested by Chasan. See Pa.R.Civ.P. 238(a)(1) (providing that

“[a]t the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or

property damage, damages for delay shall be added to the amount of compensatory damages

awarded against each defendant or additional defendant found to be liable to the plaintiff in the

verdict of a jury, in the decision of the court in a nonjury trial . . . , and shall become part of the

verdict, decision or award”).

13

See discussion infra pages 19-20.

8

the parties had stipulated to an extension of time, as permitted by Pennsylvania Rule

of Civil Procedure 248, Pa.R.Civ.P. 248, and that the trial court judge “wrongly

rejected the stipulation, as if to abrogate [this rule].” Id. at 55 n.15.

Chasan, therefore, requests that this Court reverse the trial court’s

dismissal of his amended complaint and remand the matter for further proceedings.

Id. at 60.14

Judges counter that judicial immunity bars Chasan’s defamation claim

because rendering a judicial opinion is a function normally performed by a judge

and, therefore, constitutes a judicial act. See Judges’ Br. at 16 (citing Mireles v.

Waco, 502 U.S. 9, 13 (1991)).15 Further, Judges note that in Chasan I, this Court

rejected Chasan’s identical assertion that the appellate judges accused of defamation

in that case acted without subject matter jurisdiction by allegedly rendering factual

findings and credibility determinations. Id. at 15 (citing Chasan I, 244 A.3d at 83).

14

Chasan made clear in his amended complaint that he “[does] not seek monetary damages

for the harm[.]” Am. Complaint, 10/25/20 at 2-3, ¶ 5, R.R. at 18a. In his appellate brief, as well

as at oral argument, Chasan acknowledged this waiver of his claim for monetary damages, yet

maintains that Judges’ loss of judicial immunity also renders them liable for damages. See

Chasan’s Br. at 46-47. Chasan insists that the fact he “has waived monetary damages does not

mean he does not have any,” asserting the allegation that he has committed the criminal offense of

witness intimidation is libelous per se, and, as such, does not require proof of special damages. Id.

at 47 (citing Baird v. Dun & Bradstreet, Inc., 235 A.2d 166, 171 (Pa. 1971)) (holding that a false

statement involving immorality or the commission of a crime is defamatory per se and, therefore,

does not require proof of special damages). We are unpersuaded by Chasan’s argument and find

that he has indeed waived any claim for monetary damages. See Buck v. Beard, 879 A.2d 157,

161-62 (Pa. 2005) (holding that issue omitted from appellant’s complaint in mandamus was not

subject to appellate review).

15

Judges also cite Sibley v. Lando (S.D. Fla., No. 03-21728-CIV, filed Apr. 8, 2005), 2005

WL 6108991, at *4, aff’d, 437 F.3d 1067 (11th Cir. 2005), in which the United States District

Court for the Southern District of Florida held that the judges were “absolutely immune” from

constitutional claims filed against them, “despite allegations that they issued an opinion which

relied on matters outside the appellate record,” as the judges “clearly performed a judicial act”

when “they decided an appeal brought by [a plaintiff] and issued a written opinion.”

9

Regardless, Judges maintain that, assuming arguendo that Chasan is correct in

alleging impermissible findings of fact and credibility determinations, such findings

and determinations nevertheless would constitute a violation of the applicable

standard of review and an error of law, rather than the absence of subject matter

jurisdiction. Id. at 16.

Judges contend they possessed subject matter jurisdiction over

Chasan’s appeal.16 See id. at 14-15 (citing Section 742 of the Judicial Code, 42

Pa.C.S. § 742).17 Judges also assert that Chasan failed to state a claim for declaratory

16

Judges assert that Chasan has in fact acknowledged the Superior Court’s jurisdiction

over his appeal. See Judges’ Br. at 15 (citing Am. Complaint at 3, ¶ 9, R.R. at 19a (stating that

“[t]he Superior Court’s appellate jurisdiction was based on 42 Pa.C.S.[] § 742, regarding appeals

from the Courts of Common Pleas”)). We note that Chasan does not dispute that Judges initially

possessed subject matter jurisdiction to review the trial court’s dismissal of his amended

complaint; rather, Chasan asserts that Judges acted without jurisdiction by disregarding their

appellate role. See Chasan’s Br. at 36-40; see also id. at 44 (“[T]his case cannot be disposed of on

immunity grounds just because [] Judges had jurisdiction over Chasan’s appeal.”).

17

Pursuant to Section 741 of the Judicial Code,

[t]he 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 further provides that

[t]he 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.

10

relief, because his amended complaint requested only that the trial court issue a

declaration with respect to past conduct. Id. at 19-20 (citing Chasan I, 244 A.3d at

84); O’Callaghan v. Hon. X, 661 F. App’x 179, 182 (3d Cir. 2016) (request for

declaration that judge previously violated plaintiff’s constitutional rights was “not a

proper use of a declaratory judgment”)).18 Further, Judges maintain that the trial

court did not err in sustaining their preliminary objections before Chasan filed an

objection in response. See id. at 35-37. Judges also contend that raising the

affirmative defense of judicial immunity as a preliminary objection, rather than as

separately pleaded new matter, was permissible under the circumstances of the case,

because the applicability of the defense was apparent from the face of the amended

complaint. See id. at 37-41 (citing R.H.S. v. Allegheny Cnty. Dep’t of Hum. Servs.,

Off. of Mental Health, 936 A.2d 1218, 1227 (Pa. Cmwlth. 2007)).

III. Discussion

A. Immunity

“[T]he law in Pennsylvania is well established that 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 the subject matter and person.” Feingold v. Hill, 521

A.2d 33, 36 (Pa. Super. 1987); see also Robinson v. Musmanno (Pa. Cmwlth., No.

39 C.D. 2010, filed May 28, 2010), slip op. at 3 (citing Stump) (“[A] judge is immune

from liability when the judge has jurisdiction over the subject matter before him and

18

Judges suggest that Chasan could have sued for defamation in tort. See Judges’ Br. at

11.

11

is performing a judicial act.”).19 “Like other forms of official immunity, judicial

immunity is an immunity from suit, not just from ultimate assessment of damages.”

Mireles, 502 U.S. at 11 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “[I]t

is a general principle of the highest importance to the proper administration of justice

that a judicial officer, in exercising the authority vested in him, shall be free to act

upon his own convictions, without apprehension of personal consequences to

himself.” Bradley, 80 U.S. at 347. “This immunity . . . is not for the protection or

benefit of a malicious or corrupt judge, but for the benefit of the public, whose

interest it is that the judges should be at liberty to exercise their functions with

independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554

(1967) (citation and quotation marks omitted).

Here, Chasan sued Judges on the basis of the content of the Judicial

Opinion. See, e.g., Am. Complaint, 10/25/20 at 39-40, R.R. at 55a-56a (requesting

that the trial court “issue a decision . . . holding that [he] was defamed by [the Judicial

Opinion]”). Chasan alleges that Judges impermissibly decided questions of fact and

credibility in rendering the Judicial Opinion, and that doing so did not qualify as a

judicial act for purposes of judicial immunity. See Chasan’s Br. at 43-44.

“[W]hether an act by a judge is a ‘judicial’ one relates to the nature of the act itself,

i.e., whether it is a function normally performed by a judge, and to the expectations

of the parties, i.e., whether they dealt with the judge in his judicial capacity.”

Mireles, 502 U.S. at 12 (brackets omitted) (citing Stump, 435 U.S. at 362). Issuing

an opinion disposing of an appeal is a function normally performed by an appellate

judge. See Chasan I, 244 A.3d at 82 (citing Musmanno) (holding that “[j]udges’

19

This Court’s unreported memorandum opinions issued after January 15, 2008 may be

cited for their persuasive value. 210 Pa. Code § 69.414(a).

12

issuance of the [j]udical [o]pinion was beyond peradventure”); cf. Langella, 34 A.3d

at 840 (citing Mireles) (“[A] judge’s actions, even if excessive, are protected by

judicial immunity if they serve a judicial function.”).20 Assuming arguendo that

Chasan is correct in asserting that Judges disregarded their appellate role, his attempt

to establish that issuing the Judicial Opinion did not constitute a judicial function by

parsing out portions allegedly demonstrating that Judges usurped the role of the trial

court nevertheless lacks merit. See Bradley, 80 U.S. at 357 (“[The allegedly]

erroneous manner in which [the court’s] jurisdiction was exercised, however it may

have affected the validity of the act, did not make the act any less a judicial act[.]”).

Thus, we agree with Judges that issuing the Judicial Opinion disposing of Chasan’s

appeal constituted a judicial act. See Chasan I, 244 A.3d at 83-84 (stating that

comments made by a judge while acting as a judge “[meet] the threshold for a

judicial act”); see also Bradley, 80 U.S. at 347 (holding that “the order for the entry

of which the suit is brought, was a judicial act, done by the defendant[] as the

presiding justice of a court of general criminal jurisdiction”).

Mirroring his argument in connection with the “judicial act”

requirement, Chasan also contends that Judges forfeited jurisdiction by allegedly

deciding questions of fact and credibility in the Judicial Opinion. We agree with

Judges that they acted within their subject matter jurisdiction in rendering the

Judicial Opinion.21

20

In Chasan I, this Court also noted Chasan’s acknowledgment in his reply brief that

“writing an appellate opinion is a ‘judicial act.’” Chasan I, 244 A.3d at 82 (quoting Appellant’s

Reply Br. at 6).

21

Black’s Law Dictionary defines the term “subject[]matter jurisdiction” as “[j]urisdiction

over the nature of the case and the type of relief sought; the extent to which a court can rule on the

conduct of persons or the status of things.” JURISDICTION, Black’s Law Dictionary (Westlaw,

13

Chasan asserted an identical argument in Chasan I, which this Court

rejected:

[Sections 741 and 742 of the Judicial Code, 42 Pa.C.S.

§§ 741-42,] 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 [Chasan] complains.

While [appellate j]udges lack the power or authority to

make credibility determinations or find facts, they had

proper jurisdiction to address [Chasan’s] appeal of [a f]ee

[a]ward 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. . . .

Chasan I, 244 A.3d at 83 (citing Langella). Likewise, here, Chasan’s allegation that

Judges erroneously decided questions of fact and credibility does not bear upon the

Court’s subject matter jurisdiction over his appeal. See id.

In Bradley, the United States Supreme Court held that “judges . . . are

not liable to civil actions for their judicial acts, even when such acts are in excess of

their jurisdiction, and are alleged to have been done maliciously or corruptly.” Id.

at 351. The Court explained further:

A distinction must be here observed between excess of

jurisdiction and the clear absence of all jurisdiction over

11th ed. 2019). Further, the Pennsylvania Supreme Court has explained that “jurisdiction 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.” In re Bruno,

101 A.3d 635, 659 (Pa. 2014) (citation and internal quotation marks omitted).

14

the subject[]matter. Where there is clearly no jurisdiction

over the subject[]matter any authority exercised is a

usurped authority, and for the exercise of such authority,

when the want of jurisdiction is known to the judge, no

excuse is permissible. But where jurisdiction over the

subject[]matter is invested by law in the judge, or in the

court which he holds, the manner and extent in which the

jurisdiction shall be exercised are generally as much

questions for his determination as any other questions

involved in the case, although upon the correctness of his

determination in these particulars the validity of his

judgments may depend. Thus, if a probate court, invested

only with authority over wills and the settlement of estates

of deceased persons, should proceed to try parties for

public offences, jurisdiction over the subject of offences

being entirely wanting in the court, and this being

necessarily known to its judge, his commission would

afford no protection to him in the exercise of the usurped

authority. But if on the other hand a judge of a criminal

court, invested with general criminal jurisdiction over

offences committed within a certain district, should hold a

particular act to be a public offence, which is not by the

law made an offence, and proceed to the arrest and trial of

a party charged with such act, or should sentence a party

convicted to a greater punishment than that authorized by

the law upon its proper construction, no personal liability

to civil action for such acts would attach to the judge,

although those acts would be in excess of his jurisdiction,

or of the jurisdiction of the court held by him, for these are

particulars for his judicial consideration, whenever his

general jurisdiction over the subject[]matter is invoked.

Bradley, 80 U.S. at 351-52 (emphasis added). Similarly, here, Chasan’s allegation

that Judges disregarded their appellate role by rendering factual and credibility

determinations implicates whether Judges issued the Judicial Opinion in excess of

jurisdiction, rather than in the absence of jurisdiction. See id. Because judicial

immunity from suit also extends to judicial acts performed in excess of jurisdiction,

Chasan’s reasoning is devoid of merit. See id. at 351.

15

B. Pleading Immunity by Preliminary Objection

Chasan further contends that the trial court erred in sustaining Judges’

preliminary objection asserting judicial immunity, because Judges improperly

pleaded this affirmative defense by preliminary objection rather than as new matter.

We disagree.

As we have explained previously,

although [Pennsylvania Rule of Civil Procedure] 1030[,

Pa.R.Civ.P. 1030,] provides affirmative defenses are to be

raised as new matter, if it is clear from the face of the

complaint that a suit is barred by the defense of immunity

the case may be dismissed on preliminary objections.

Wurth by Wurth v. City of Philadelphia, . . . 584 A.2d 403

([Pa. Cmwlth.]1990). The rationale for this exception is

to avoid unnecessary delay if the complaint is clearly

barred by the doctrine of immunity.

Logan v. Lillie, 728 A.2d 995, 998 (Pa. Cmwlth. 1999) (holding that “it was proper

for the trial court to consider the doctrine of immunity on preliminary objections”

where defendants’ status as judicial officers rendered the applicability of the defense

of sovereign immunity “clear from the face of the complaint”); see also Faust v.

Dep’t of Revenue, 592 A.2d 835, 838 n.3 (Pa. Cmwlth. 1991) (explaining that

“sovereign immunity is an affirmative defense which ordinarily should be raised as

new matter, but may be raised in preliminary objections when to delay a ruling

thereon would serve no purpose”); Feldman v. Hoffman, 107 A.3d 821, 832 (Pa.

Cmwlth. 2014) (trial court may consider immunity defense raised by preliminary

objections even where “plaintiff did object . . . where no purpose would be served

by a delay in ruling on the matter and it would expedite disposition of the case”).

Here, it “is evident on the face of the [amended] complaint” that judicial immunity

16

bars Chasan’s claim, because Judges are named defendants and the claim arises from

the content of a judicial opinion deciding an appeal over which Judges possessed

subject matter jurisdiction. See Chasan I, 244 A.3d at 81 (holding that the trial court

did not err in considering the defense of judicial immunity raised by Judges as a

preliminary objection, explaining that “[b]ecause the [second amended complaint]

name[d] [j]udges as defendants for (allegedly defamatory) content in the [j]udicial

[o]pinion, the judicial immunity defense is evidence on the face of the complaint”).

Further, for the reasons explained above, the window of time in which Chasan was

permitted to object to Judges’ preliminary objection asserting judicial immunity has

long since expired; thus, Chasan has waived any objection on that basis. See id.

(determining that “[Chasan] offered no cause for delaying consideration 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”).

Having exhausted his attempts to challenge the substance of the Judicial

Opinion, Chasan instead seeks to undermine the validity of Judges’ holding

indirectly through his “pseudo-declaratory” defamation action requesting a “non-

jury decision” declaring that Judges defamed him. See Am. Complaint, 10/25/20 at

2 & 6, ¶¶ 5 & 16, R.R. at 18a & 22a. However, the purpose of the doctrine of judicial

immunity is to shield judicial officers from the exact scenario at play here—a

dissatisfied litigant suing judges in their individual capacities to contest the outcome

of a lawsuit. See, e.g., Dennis v. Sparks, 449 U.S. 24, 31 (1980) (“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 [by] an unsatisfied litigant[.]”); Bradley, 80 U.S. at 347

(“Liability to answer to everyone who might feel himself aggrieved by the action of

17

the judge[] would be inconsistent with the possession of this freedom, and would

destroy that independence without which no judiciary can be either respectable or

useful.”); see also Chasan I, 244 A.3d at 84 (reasoning that “[w]ere 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”).22

Accordingly, we agree with Judges that the trial court did not err in

dismissing Chasan’s suit on the basis of judicial immunity, as it is clear and free

from doubt that Judges possessed subject matter jurisdiction over Chasan’s appeal

and were performing a judicial act by issuing the Judicial Opinion. See Stump, 435

U.S. at 362-64; Feldman, 107 A.3d at 826 n.7; see also Chasan I, 244 A.3d at 83-84

(rejecting Chasan’s assertion and “agree[ing] with the [t]rial [c]ourt that the

[j]udicial [o]pinion constituted a judicial act that was issued within [j]udges’

jurisdiction under Section 742 of the Judicial Code”); Feingold, 521 A.2d at 37

(holding that plaintiff “failed to plead any facts which would remove [judge’s] cloak

of judicial immunity,” reasoning that judge possessed jurisdiction over the

underlying dispute and, further, that issuing “unfavorable rulings” was “clearly

within the scope of [the judge’s] authority”).23

22

Regarding Chasan’s assertion that he “had no satisfactory appellate remedy once the

Judges’ opinion was issued,” we note that Chasan pursued recourse by filing a petition for

allowance of appeal from the Judicial Opinion, which the Pennsylvania Supreme Court denied.

See Chasan’s Br. at 45; Pa. Supreme Ct. Order, 7/24/19, R.R. at 106a. Further, Chasan stated in

his amended complaint that he “does not seek reversal of the [Judicial Opinion].” Am. Complaint,

10/25/20 at 3, ¶ 5, R.R. at 19a.

23

The trial court sustained Judges’ preliminary objections and dismissed Chasan’s

amended complaint for the reasons set forth in Chasan I. See Trial Ct. Order, 1/25/21, R.R. at

107a. In Chasan I, this Court affirmed the trial court’s decision to sustain the judges’ preliminary

objections on the basis of judicial immunity and Chasan’s failure to state a cognizable claim for

18

C. Stipulated Extension

Chasan also asserts that the “precipitous dismissal” of his amended

complaint was “procedurally defective and unfair” because the trial court sustained

Judges’ preliminary objections even though he had not waived his right to respond.

See Chasan’s Br. at 55-56. Further, Chasan maintains that the trial court “wrongly

rejected the stipulation, as if to abrogate [Pennsylvania Rule of Civil Procedure]

248.” Id. at 55 n.15. We agree with Judges that Chasan is not entitled to relief on

this basis.

Pursuant to Pennsylvania Rule of Civil Procedure 248, “[t]he time

prescribed by any rule of civil procedure for the doing of any act may be extended

or shortened by written agreement of the parties or by order of court.” Pa.R.Civ.P.

248. Here, Judges filed preliminary objections to Chasan’s amended complaint on

December 15, 2020. See Trial Ct. Docket at 12, R.R. at 12a. The original deadline

to object to Judges’ preliminary objections therefore was January 4, 2021. See

Pa.R.Civ.P. 1026 (providing that, with certain exceptions not applicable here, “every

pleading subsequent to the complaint shall be filed within twenty days after service

of the preceding pleading”). The parties filed a joint stipulation indicating their

agreement to extend the deadline by which Chasan must respond to Judges’

preliminary objections to February 4, 2021. See Stipulation at 1-2, O.R. at 1041-42;

Trial Ct. Order, 1/25/21, R.R. at 107a. However, the trial court sustained Judges’

preliminary objections and dismissed Chasan’s amended complaint by order dated

declaratory relief as to the alleged defamatory content of the judges’ judicial opinion. See Chasan

I, 244 A.3d at 82-84. Here, Chasan asserts that the trial court erred in sustaining Judges’

preliminary objections on the basis of immunity. See Chasan’s Br. at 33-60. Apart from

contending that his request for “pseudo-declaratory judgment” does not in fact constitute a

declaratory judgment claim, see Chasan’s Br. at 47; Am. Complaint, 10/25/20 at 6, ¶ 16, R.R. at

22a, Chasan fails to articulate any challenge to Judges’ demurrer.

19

January 20, 2021 and docketed on January 25, 2021. Trial Ct. Order, 1/25/21, R.R.

at 107a.

Chasan is correct that the trial court erred by ignoring the parties’

stipulated extension of time, which was expressly authorized by Rule 248. However,

Chasan has not established any harm resulting from the timing of the trial court’s

decision sustaining Judges’ preliminary objections, particularly where he has failed

to articulate any assertion which, if included in a preliminary objection, would have

undermined Judges’ immunity defense. See Haney v. Sabia, 428 A.2d 1041, 1043

(Pa. Cmwlth. 1981). Therefore, the trial judge’s error was harmless.

IV. Conclusion

For the foregoing reasons, we affirm the trial court’s order.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

20

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce J. Chasan, :

Appellant :

:

v. :

:

Correale F. Stevens, Carolyn H. : No. 169 C.D. 2021

Nichols, and Mary P. Murray :

ORDER

AND NOW, this 26th day of July, 2022, the January 25, 2021 order of

the Philadelphia County Court of Common Pleas is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge