IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vincent N. Melchiorre :

:

 v. : No. 1186 C.D. 2021

: Argued: November 14, 2022

Simon Haileab, Esquire, :

:

Appellant :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge (P)

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: February 27, 2023

Simon Haileab, Esq. (Haileab), a former Assistant District Attorney 

(ADA) of the Philadelphia District Attorney’s Office (DA’s Office), appeals from 

the October 20, 2021 order of the Philadelphia County Court of Common Pleas (trial 

court)1that denied, in part, his Motion for Summary Judgment to former 

Philadelphia County Court of Common Pleas Judge Vincent N. Melchiorre’s 

(Melchiorre) civil action against Haileab involving claims of defamation, false light, 

and tortious interference. Haileab argues that the trial court erred in determining that 

he was not entitled to “absolute immunity” from civil liability for statements he 

allegedly made within the scope of his authority as an ADA. Also before this Court 

is Melchiorre’s Motion to Quash the appeal for lack of jurisdiction and Haileab’s 

1 The Honorable Robert Shenkin, a senior judge of the Chester County Court of Common 

Pleas, was assigned to the case as an out-of-county judge.
2

Answer in response. For the reasons that follow, we grant Melchiorre’s Motion to 

Quash and quash Haileab’s appeal. 

On March 19, 2018, Melchiorre filed a Complaint in the trial court 

against ADA Haileab and the DA’s Office. At the time of the events at issue, 

Melchiorre was a judge appointed to the trial court, and Haileab was an ADA in the 

DA’s Office. In the Complaint, Melchiorre alleged that, on March 6, 2017, he met 

with Haileab and defense counsel in chambers to discuss the continuance of a 

criminal trial. Following that meeting, Haileab allegedly returned to the DA’s Office 

and told senior members of the DA’s Office that Melchiorre had called Haileab’s 

supervisor, a female Senior ADA, a derogatory and vulgar name (“c*nt”). 

Melchiorre denied that he called the Senior ADA a derogatory name. Melchiorre 

alleged that Haileab made the statement to deflect criticism from his supervisors 

regarding his poor job performance, and the statement was not made within his 

official duties. 

Melchiorre further alleged 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, who was then running 

in the upcoming election to keep his appointed seat, from “recommended” to “not 

recommended.” Complaint, ¶12; Reproduced Record at 4a. As a result of the 

downgrade in the endorsement, Melchiorre claimed that he lost several other 

endorsements, and ultimately lost his bid to obtain a ballot position as a Democratic 
3

candidate in the 2017 General Election for one of several open seats to serve as a 

judge on the trial court. 

Melchiorre’s Complaint set forth causes of action against Haileab for 

defamation, false light, and tortious interference with contractual relations. The 

Complaint also set forth the same claims against the DA’s Office with an additional 

claim that the DA’s Office was vicariously liable for its employees’ defamatory 

publications.

In response, Haileab and the DA’s Office both filed Preliminary 

Objections (POs) to the Complaint. Haileab asserted, among other defenses, 

absolute immunity from civil liability as a high public official for statements that he 

allegedly made within the scope of his authority as an ADA. The DA’s Office 

preliminarily objected on the grounds that the Complaint failed to allege that the 

DA’s Office had acted with actual malice when it reported the alleged statements 

and that it was entitled to governmental immunity under Sections 8541-42 of the 

Judicial Code, commonly referred to as the Political Subdivision Tort Claims Act, 

42 Pa. C.S. §§8541-42. 

By order dated March 4, 2019, the trial court sustained the DA’s 

Office’s POs and dismissed it from the case. However, the trial court overruled 

Haileab’s POs. The trial court determined that discovery was necessary to ascertain

whether Haileab was entitled to high public official immunity. 

Haileab appealed the trial court’s order to this Court asserting 

jurisdiction on the basis that the order was a collateral order as defined by 

Pennsylvania Rule of Appellate Procedure 313, Pa. R.A.P. 313 (Rule 313). We 

disagreed. We determined that the denial of Haileab’s POs asserting high public 

official immunity was not separable from the main cause of action. We explained 
4

that Melchiorre’s Complaint alleged specific conduct by Haileab that, if proven, 

would fall outside the scope of Haileab’s official duties as an ADA. Because further 

factual development through discovery was necessary, we declined to invoke the 

collateral order doctrine to resolve the immunity question. Thus, we quashed 

Haileab’s appeal. See Melchiorre v. Haileab (Pa. Cmwlth., No. 741 C.D. 2019, filed 

March 15, 2021). 

Thereafter, the parties engaged in discovery. Following the close of 

discovery, Haileab filed a Motion for Summary Judgment seeking judgment on the 

tortious interference claim, which Melchiorre did not contest, and reasserting 

absolute immunity as a high public official. On October 20, 2021, the trial court 

granted the Motion for Summary Judgment, in part, and entered judgment in 

Haileab’s favor with respect to Melchiorre’s tortious interference claims.

However, the trial court otherwise denied the Motion and specifically 

rejected Haileab’s absolute immunity defense. After summarizing the standard for 

summary judgment motions, the trial court explained:

Summary judgment may be entered only in cases that are 

clear and free from doubt. No matter how unlikely it 

might appear that the non-moving party might prevail, any 

possibility of that even occurring is sufficient to defeat 

such motion. Reviewing the record in the light most 

favorable to the non-moving party requires not only that 

all contested facts be resolved in favor of the non-moving 

party but all reasonable inferences from those facts must 

be drawn in favor of the non-moving party. Viewed in this 

light, the record does not support [Haileab]’s contention 

that there is no possibility that [Melchiorre] could prevail. 

We again reject the concept that [Haileab] in this case is 

entitled to absolute immunity. [Haileab] relies heavily 

upon prior statements but for the most part, if not entirely, 

these statements are not judicial admissions and are not 

binding on [Melchiorre] even if they are his own 

statements.
5

Trial Court Order, 10/20/21, at 1 n.1 (emphasis in original). 

In the trial court’s Pa. R.A.P. 1925(a) Opinion that followed, the trial 

court recognized that absolute immunity exempts a high public official from all civil 

suits provided the statements are made within the course of the official’s duties or 

power and within the scope of his authority. However, the trial court determined “it 

is not clear and free from doubt that the record in this case, excluding testimonial 

statements by which [Melchiorre] is not bound, mandates a finding that [Haileab’s] 

actions were taken in the course of his official duties or powers and within the scope 

of his authority.” Trial Court Op., 1/24/22, at 2. This appeal now follows.2 In 

response, Melchiorre filed a Motion to Quash asserting that this Court lacks 

jurisdiction on the basis that the order appealed from is not a collateral order, which 

we address first.3 

Melchiorre contends that Haileab’s appeal should be quashed for a lack 

of jurisdiction because the order appealed is not a collateral order as defined by Rule 

313(a) because it does not satisfy all three elements of the collateral order rule of 

separability, importance, and irreparable loss. First, Melchiorre argues that the trial 

court’s order relating to absolute immunity is not separable because it is inextricably 

intertwined to the main cause of action. Second, he maintains that, if review of the 

order is postponed, Haileab’s claim will not be irreparably lost because the trial court 

may rule on summary judgment before trial. 

Rule 313 governs collateral orders and provides:

2

“This Court’s review of a trial court’s order granting or denying a motion for summary 

judgment is limited to determining whether the trial court committed an abuse of discretion or an 

error of law.” Sacco v. Township of Butler, 863 A.2d 611, 613 (Pa. Cmwlth. 2004).

3 Haileab filed an unopposed Application for Stay of Trial Pending Appeal, which this 

Court granted on September 19, 2022. 
6

(a) General rule.--An appeal may be taken as of right from 

a collateral order of a trial court or other government unit.

(b) Definition.--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.

Pa. R.A.P. 313. In short, Rule 313 tests “separability, importance, and irreparable 

loss.” Brooks v. Ewing Cole, Inc., 259 A.3d 359, 364 (Pa. 2021). “[W]here an order 

satisfies Rule 313’s three-pronged test, an appellate court may exercise jurisdiction 

even though the order is not final.” Id. at 370. 

“If the test is not met, however, and in the absence of another exception 

to the final order rule, there is no jurisdiction to consider an appeal of such an order.” 

Brooks, 259 A.3d at 370. “As an exception to the rule of finality, the collateral order 

rule is interpreted narrowly, and each prong must be satisfied before an order will 

be considered on appeal.” Sylvan Heights Realty Partners, L.L.C. v. LaGrotta, 940 

A.2d 585, 587 (Pa. Cmwlth. 2008); see Brooks, 259 A.3d at 373. 

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). Because this appeal requires 

us to determine whether a decision denying Haileab’s official immunity defense 

meets the collateral order doctrine, we examine the general principles of official 

immunity.

The common law doctrine of “high official immunity” insulates “highranking public officials” from all statements made and acts taken in the course of 

their official duties. Feldman v. Hoffman, 107 A.3d 821, 826 (Pa. Cmwlth. 2014). 

DAs and ADAs are considered high public officials entitled to such protection for 
7

statements made in the course of their official duties. Durham v. McElynn, 772 A.2d 

68, 69 (Pa. 2001). The statements and actions must be “closely related” to the 

performance of official duties. McCormick v. Specter, 275 A.2d 688, 689 (Pa. Super. 

1971). 

In Lindner v. Mollan, 677 A.2d 1194, 1195 (Pa. 1996), our Supreme 

Court explained: 

[T]he doctrine of absolute privilege for high public 

officials, as its name implies, is unlimited and exempts a 

high public official from all civil suits for damages arising 

out of false defamatory statements and even from 

statements or actions motivated by malice, provided the 

statements are made or the actions are taken in the course 

of the official’s duties or powers and within the scope of 

his authority, or as it is sometimes expressed, within his 

jurisdiction.

* * *

[It is] designed to protect the official from the suit itself, 

from the expense, publicity, and danger of defending the 

good faith of his public actions before the jury. And yet, 

beyond this lies a deeper purpose, the protection of 

society’s interest in the unfettered discussion of public 

business and in full public knowledge of the facts and 

conduct of such business.

(Citations omitted and emphasis added). 

Indeed, “the public interest is best served by granting broad immunity 

to high-ranking officers . . . .” Feldman, 107 A.3d at 826-27. As our Supreme Court 

observed, promoting the “unfettered discharge of public business and full public 

knowledge of the facts and conduct of such business. [High public official] 

immunity is thus a means of removing any inhibition which might deprive the public 
8

of the best service of its officers and agencies.” Montgomery v. City of Philadelphia, 

140 A.2d 100, 103-04 (Pa. 1958). 

To illustrate, in Sylvan Heights, prospective purchasers of a county 

nursing home brought action against a member of the Pennsylvania House of 

Representatives for tortious interference with a contract, alleging that the 

representative’s actions caused the county to breach its contract with purchasers. 

The purchasers alleged that the representative’s tortious conduct was outside the 

scope of his jurisdiction and duties as a state legislator. The representative 

interposed a motion for judgment on the pleadings based on immunity. The trial 

court denied the motion and the representative appealed. The purchasers filed a 

motion to quash on the basis that the order was not a collateral order. We determined 

that, although the right to assert official immunity is of sufficient importance to 

satisfy the second element, the first and third elements were not met.

With regard to the first element, we explained:

Distilled to its essence, [the representative’s] argument is 

that the Speech or Debate Clause allows any legislator to 

avoid trial, or even discovery, in any matter, wherein the 

alleged tortious conduct has even a tangential connection 

with the legislator’s official duties. The [purchasers] here 

have alleged conduct which, if proven, would be clearly 

outside the legislative sphere.

Sylvan Heights, 940 A.2d at 588. Because the immunity issue was not separable 

from the main action, we granted the motion to quash. Id.; see also Bollinger by 

Carraghan v. Obrecht, 552 A.2d 359, 363 (Pa. Cmwlth. 1989) (quashing an appeal 

from the denial of summary judgment, where “[t]he affirmative immunity defenses[] 

being asserted in the pleadings[] raise[d] factual and legal issues to be decided in the 
9

main cause of action"); Pescatore v. School District of Philadelphia (Pa. Cmwlth., 

No. 1072 C.D. 2014, filed February 27, 2015) (same).

4

More recently, in Brooks, our Supreme Court examined the three-prong 

collateral order test in the context of the analogous sovereign immunity doctrine.5 

There, a courthouse visitor brought a personal injury action against the family court 

and others after she was allegedly injured while walking into an unmarked glass wall 

at the family court building. The family court moved for summary judgment 

asserting sovereign immunity, which the trial court denied. The family court 

appealed. This Court quashed the appeal. On further appeal, the Supreme Court 

reversed and remanded upon determining that the family court’s motion for 

summary judgment on the defense of sovereign immunity was immediately

appealable under the collateral order doctrine. Brooks, 259 A.3d at 374-75.

The Supreme Court agreed with our analysis regarding the first two 

prongs. Brooks, 259 A.3d at 371-72. First, the order was separable from the 

underlying negligence action because the issue of whether the family court was a 

“Commonwealth party” entitled to immunity could be resolved independent of a 

consideration of the negligence claim. Id. at 372. Second, the right involved --

sovereign immunity -- “implicates public policy concerns that extend beyond the 

parties to the instant litigation, as its resolution will dictate whether a member of the 

general public may maintain a negligence action against the courts.” Id. at 364. The 

issue on appeal was whether the third prong was met. The Supreme Court 

4 Unreported memorandum opinions of this Court may be cited for their persuasive value 

pursuant to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 

126(b)(1), and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code 

§69.414(a).

5

See Sections 8521-8527 of the Judicial Code, commonly referred to as the Sovereign 

Immunity Act, 42 Pa. C.S. §§8521-27.
10

determined it was met, explaining that the immunity afforded to public official 

defendants should be immediately appealable because the immunity “is irreparably 

lost if appellate review of an adverse decision on [the] immunity is postponed until 

after final judgment.” Id. at 373. 

Based on the foregoing, there is no doubt that the importance and 

irreparable loss prongs are clearly met here. See Brooks. The crux of the matter is 

whether the separability prong is also met. In support of the separability prong, 

Haileab relies on Durham, for the position that an ADA is always entitled to official 

immunity. 

In Durham, an inmate filed a tort action against his prosecutor alleging 

that the prosecutor violated various constitutional rights in the course of his 

prosecution. The prosecutor filed preliminary objections claiming immunity from 

suit for actions taken in his capacity as a prosecutor, which the trial court granted. 

On appeal, the Supreme Court affirmed, holding that the prosecutor was immune 

from suit for action taken in his official capacity under the doctrine of “absolute 

immunity.” Durham, 772 A.2d at 70. The Supreme Court opined:

The public interest requires that district attorneys be able 

to carry out their duties without being hampered by civil 

suits claiming damages for actions taken in their official 

capacities. The public would indeed suffer if the 

prosecution of criminals were impeded, as would be the 

case if district attorneys were not accorded absolute 

immunity.

Id.

However, Durham is readily distinguishable from the case here. In 

Durham, the inmate alleged, and there was no dispute that, the prosecutor made the 

statements during the course of his official duties. See Durham, 772 A.2d at 69. 

Such is not the case here. It is hotly contested whether Haileab made the statements 
11

within the course of his official duties. Melchiorre produced evidence in support of 

his claims that Haileab made the comments outside the scope of his official duties. 

Although Melchiorre admits to having a conversation with Haileab in which he 

expressed his displeasure with the DA’s Office, Melchiorre denies that he ever used 

the “C” word or that the conversation had anything to do with matters that the ADA 

was litigating. Original Record at 405, 421.6 Melchiorre claims that Haileab’s

statements were fabricated and said for his personal gain to divert attention away 

from his lack of diligence and effectiveness in litigating criminal cases. See id. at 

288, 306, 422. Melchiorre also contends that Haileab regretted making the 

comments and wanted to apologize to, or smooth things over with, Melchiorre. See

id. at 1339; see also id. at 751-54, 1328-29. Melchiorre avers that Haileab did not 

just make the alleged defamatory statements to his supervisors at the DA’s Office, 

but he repeated the statements to other persons outside of the DA’s Office in casual 

contexts, including to friends while out drinking. Id. at 732-33. 

Upon review, the question of whether immunity applies will require the 

factfinder to review the evidence and determine whether Haileab made the 

statements for a purpose closely related to his prosecutorial functions or for his own 

self-interest and gain. Consequently, the issue of whether Haileab is entitled to 

immunity cannot be resolved independent of a consideration of the tort claim. Under 

the circumstances here, the issue of immunity is not separable from and collateral to 

the main cause of action. See Sylvan. 

6 Because the Original Record was filed electronically and was not paginated, the page 

numbers referenced herein reflect electronic pagination. 
12

For these reasons, we grant Melchiorre’s Motion to Quash and quash 

Haileab’s appeal. 

MICHAEL H. WOJCIK, Judge

Judge Dumas did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Vincent N. Melchiorre :

:

 v. : No. 1186 C.D. 2021

: 

Simon Haileab, Esquire, :

:

Appellant :

O R D E R

AND NOW, this 27th day of February, 2023, we GRANT Vincent N. 

Melchiorre’s Motion to Quash and QUASH Simon Haileab’s appeal from the 

October 20, 2021 order of the Philadelphia County Court of Common Pleas (trial 

court). 

__________________________________

MICHAEL H. WOJCIK, Judge