Pilchesky, J. v. Hartman, S.
783 MDA 2021
| Pa. Super. Ct. | Mar 24, 2022Background
- Appellant Joseph Pilchesky was convicted in 2018 of Unauthorized Practice of Law and sentenced January 2, 2019 to two years probation and restitution. He filed a civil suit against Sheila Hartman and Mary Chilipko in 2019 alleging their role in prompting the Attorney General investigation; the trial court found that their communications and testimony were privileged and ordered Pilchesky to withdraw the suit and to cease contact with them.
- After his probation expired, Pilchesky filed a near-identical civil complaint on January 5, 2021 asserting breach of confidence, invasion of privacy, defamation, perjury, unjust enrichment, and constitutional deprivations because the defendants had solicited his help knowing he was not a lawyer and later cooperated with the OAG and testified against him.
- Defendants moved to dismiss the 2021 complaint, arguing it recycled claims already rejected as barred by witness immunity/privilege; they filed a supporting memorandum asserting the suit was essentially the same as the 2019 action.
- At an April 15, 2021 hearing Pilchesky (pro se) admitted the complaints were essentially the same and conceded the defendants testified truthfully, but contended liability based on an alleged pre-arrest agreement to conceal his unlawful practice.
- The trial court dismissed the 2021 complaint as an improper attempt to punish witnesses for cooperating with prosecutors and reiterated that testimony and communications to law enforcement are immune from civil liability; Superior Court affirmed, finding no procedural error and concluding the merits issue was waived by inadequate briefing while noting alternative defenses (illegal agreement, in pari delicto).
Issues
| Issue | Pilchesky's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Procedural propriety of using a Motion to Dismiss (instead of answer) | Motion to dismiss was noncompliant with procedural rules; court should have required an answer | Motion to dismiss appropriate given identical prior dismissed action and judicial history; court invited explanation at hearing | Court did not abuse discretion; Rule 126 allows liberal treatment and no prejudice resulted from dismissal motion |
| Whether claims are barred by witness immunity/privilege | Claims are not based on trial testimony but on pre-arrest conduct and an alleged promise to conceal his unlawful practice | Communications to prosecutors and sworn courtroom testimony are privileged/immune; prior order already found claims barred | Held claims barred: precedent immunizes parties for communications with law enforcement and testimony; dismissal proper |
| Whether trial court ignored Pilchesky’s Motion to Strike defendants’ motion to dismiss | Pilchesky argued procedural noncompliance; court failed to address motion to strike | Defendants asserted dismissal appropriate and court gave Pilchesky hearing to respond | Court effectively addressed procedural challenge at hearing and did not err in treating the motion to dismiss as proper under Rule 126 |
| Whether the trial court erred on the merits (breach/other torts) | Alleged agreement to keep silent created duties; breach caused his prosecution and damages | Even if alleged, such an agreement would be illegal/unenforceable; doctrines like gist of action and in pari delicto bar recovery | Appellant failed to develop/brief merits on appeal; claim waived. Court also noted independent defenses (illegality, in pari delicto) would bar relief |
Key Cases Cited
- Post v. Mendel, 507 A.2d 351 (Pa. 1986) (judicial privilege covers communications made in contemplation of proceedings if pertinent and material)
- Clodgo by Clodgo v. Bowman, 601 A.2d 342 (Pa. Super. 1992) (absolute/qualified privilege for communications related to contemplated or ongoing litigation)
- Greenberg v. McGraw, 161 A.3d 976 (Pa. Super. 2017) (private-party statements to law enforcement to initiate prosecution are absolutely protected)
- Mirizio v. Joseph, 4 A.3d 1073 (Pa. Super. 2010) (gist of the action doctrine limits tort recovery when obligations arise from contract)
- Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612 (U.S. 2018) (illegality is a recognized defense to enforcement of a contract)