Defense Digest

Pennsylvania - Municipal Liability
Superior Court Upholds Common Law Immunity

In Heller v. Fulare, the defendants succeeded on an interlocutory appeal from the district court's denial of common law immunity. The appeal arose out of a pending federal lawsuit against a township supervisor and township. Five police officers claimed that the township supervisor violated their First and Fourteenth Amendment rights when he reported their suspected misconduct to county and state authorities, allegedly in retaliation for the police officers' protected speech. The police officers also brought a state law claim for defamation, claiming the supervisor had falsely accused them of criminal misconduct when he stated that the officers had engaged in a conspiracy that caused the former police chief to resign. The supervisor also commented that he had a conversation with a deputy attorney general who informed him that there were serious misconduct issues in the police department that the township should address and that the township should "hire a good attorney to clean the place up."

On a motion to dismiss, the defendants argued that the supervisor and, thus, the township were entitled to high public official immunity from suit, which is an absolute privilege for high public officials such as a township supervisor. The district court conceded that the supervisor was a high public official of the type that was entitled to the absolute privilege; however, the district court accepted the officers' contention that the immunity was abrogated because the supervisor allegedly did not have the authority to make the comments. The district court sided with the officers, even though the township supervisor was statutorily charged with the duty to generally govern the township and ensure the safety and welfare of its citizens. The officers had relied upon a chain of command policy that required complaints against police officers to be first filed with the township manager. The officers alleged that this chain of command policy was designed to discourage an individual supervisor's interference with the police department. The Third Circuit reversed the district court's denial of immunity to the defendants, holding that the break in the township's chain of command was not relevant to whether the supervisor was entitled to high public official immunity. It followed well-established Pennsylvania precedent that the immunity entails an absolute privilege that exempts a high public official from suit for defamation, no matter the motivation of the statements, provided that the statements were made within the course of the official's duties or within the scope of his authority. It was undisputed that the alleged defamatory remarks were made during public meetings and, thus, were clearly within the scope of the township supervisor's official duties and within the ambit of the township's oversight of the police department.

The Heller opinion is particularly important because it reaffirmed a defendant's entitlement to an interlocutory appeal where there is a denial of immunity that would constitute an absolute bar to suit, as opposed to a bar to liability. The interlocutory appeal is permissible, even where the immunity is based upon state law rather than federal law.

The appellate success was critical in this case because the officers had been aggressively contending that the supervisor's "public charges" against them constituted a basis for a First Amendment retaliation claim. When the district court instructed that those charges could not be the basis of a First Amendment retaliation claim, the officers amended their complaint to assert the state law defamation claim. The defendants can now move forward with the strong argument that said "public charges" are inadmissible at trial since they are not relevant to the remaining retaliation claim that is founded upon the officers' speech, not the supervisor's.

*Trish is a shareholder in our Pittsburgh, PA office. She can be reached at (412) 803-1151 or pamonahan@mdwcg.com.