Opinion
No. 519 C.D. 2012
10-12-2012
Robert Herdelin, Appellant v. Michael Chitwood
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Robert Herdelin (Herdelin) appeals from the December 6, 2011 Order of the Court of Common Pleas of Delaware County (trial court) that granted summary judgment in favor of Michael Chitwood (Chitwood), Superintendent of the Upper Darby Township Police Department (Township Police), in a defamation action filed against Chitwood by Herdelin. The issue before this Court is whether the trial court erred in granting summary judgment when it held that Chitwood's statements, made during the course of his official duties, were immune from liability and absolutely privileged as those of a high public official. We affirm.
On May 10, 2010, Herdelin filed a Complaint seeking damages for defamation against Chitwood in his personal capacity, and not as Superintendent of Township Police. Herdelin averred that for twenty-seven years he had been the owner and operator of a bar known as "Cheers" located at 69th and Market Streets in Upper Darby, Pennsylvania. (Complaint ¶ 4.) Chitwood responded by filing preliminary objections (POs) in response to which the trial court entered an Order, on August 4, 2010, striking the Complaint for lack of specificity. Herdelin then filed an Amended Complaint on September 7, 2010 that described how a formerly positive relationship with Chitwood deteriorated after a shooting occurred at Cheers on November 16, 2009. (Amended Complaint ¶¶ 7-8, 13, 16, R.R. at 60a-62a.) Herdelin alleges that Chitwood made statements to the press that Cheers was a "cesspool," "a danger to the community," and a "criminal enterprise" that should have been "immediately shut down" (Press Statements). (Amended Complaint ¶¶ 16-17, R.R. at 62a-63a.) Chitwood's Press Statements are attached to the Amended Complaint as Exhibits B-J. (Exs. B-J, R.R. at 70a-93a.)
On November 24, 2010, Chitwood filed an Answer with New Matter and Affirmative Defenses (New Matter). The New Matter provides, inter alia, that Chitwood, as Superintendent, is the highest ranking member of the Township Police and, as such, Herdelin's claims are barred or otherwise limited by the common law doctrine of absolute privilege for high public officials and/or by the defense of official immunity set forth within Section 8550 of what is commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. § 8550. (Answer with New Matter ¶¶ 20-37, R.R. at 99a-102a.) The New Matter states that 6840 Market Street, Inc., a Pennsylvania corporation, not Herdelin, is the owner of Cheers and its liquor license and raises all defenses to intentional torts, including but not limited to, absolute and qualified privilege, absence of malice, good faith, expression of opinion, and fair comment on a matter of public interest. (Answer with New Matter ¶¶ 38-39, R.R. at 102a.) Discovery ensued. Herdelin and Chitwood submitted to depositions on February 16, 2011, along with George J. Rhoades, Jr., a Captain with Township Police, on June 10, 2011. (Herdelin Dep. at 1-107, R.R. at 144a-71a; Chitwood Dep. at 1-126, R.R. at 175a-207a; Rhoades Dep. at 1-85, R.R. at 276a-98a.)
Chitwood filed POs to the Amended Complaint and, subsequently, a Motion for Judgment on the Pleadings, which the trial court denied on November 10, 2010 and May 13, 2011, respectively.
At the close of discovery, on October 7, 2011, Chitwood filed a Motion for Summary Judgment (Motion) and a Memorandum of Law in Support thereof (Memorandum). The Motion includes Exhibits A through I, consisting, inter alia, of the aforesaid depositions, documentary evidence that includes over 300 Township Police incident reports for Cheers, a Delaware County trial court opinion, 6840 Market Street, Inc. v. Pennsylvania Liquor Control Board, (Delaware County, Civil Division No. MD 10-1555, filed March 4, 2011) (March 4, 2011 Trial Ct. Op.), that affirmed an order by the Pennsylvania Liquor Control Board (PLCB) denying the renewal of a liquor license for Cheers, and a letter from the PLCB to Herdelin stating that, effective December 1, 2009, his application for a renewal of his liquor license was refused and the case was closed because this Court dismissed his PLCB appeal on June 22, 2011. (Motion at 1-13, R.R. at 7a-19a; Memorandum at 1-38, R.R. at 20a-57a; Exs. A-I, R.R. at 58a-298a.) On November 10, 2011, Herdelin filed an Answer to the Motion with a Memorandum of Law in Support thereof with attachments. (Answer to Motion at 1-8, R.R. at 301a-08a; Memorandum in Support of Answer to Motion at 1-10, R.R. at 309a-18a.) After consideration of the entire record, the trial court, by Order dated December 6, 2011, granted Chitwood's Motion and dismissed Herdelin's action with prejudice.
The PLCB's findings, affirmed by the trial court, include that 6840 Market Street, Inc., the licensee, had actual or constructive knowledge: "of illicit activity occurring in and around the licensed premises"; of a shooting incident within the licensed premises in February 2009 after which it "failed to take any affirmative steps in response to that incident"; that "[in November 2009] a victim was found shot to death in the very same restroom that the February 2009 incident occurred"; and "the corrective measures taken, and the time in which they were implemented, do not warrant renewal of Licensee's liquor license." (March 4, 2011 Trial Ct. Op. at 11-13.)
Herdelin filed a Notice of Appeal on January 6, 2012, after which the trial court filed an opinion in support of its Order granting summary judgment on January 20, 2012. In its opinion, the trial court stated that following a string of criminal investigations and complaints surrounding Cheers, including the November 2009 homicide, Herdelin did not dispute that Superintendent Chitwood held press conferences and referred to Cheers as a "criminal enterprise." (Trial Ct. Op. at 1-2.) The trial court found that: (1) Chitwood was a high public official; (2) Chitwood spoke to the press in the course of his official duties; and (3) the nature of Chitwood's statements could not be a basis to alter his status as a high public official. (Trial Ct. Op. at 2.) Concluding that Chitwood's Press Statements were within the course of his official duties and, therefore, he was immune as a matter of law from suits seeking damages, the trial court entered summary judgment in favor of Chitwood. (Trial Ct. Op. at 6.)
By Order dated March 29, 2012, the Superior Court transferred Herdelin's appeal to this Court, citing Pa. R.A.P. 751 and Brady Contracting Co. v. West Manchester Township Sewer Authority, 487 A.2d 894, 897 (Pa. Super. 1985) (exclusive appellate jurisdiction is vested in Commonwealth Court in tort actions brought against a local government party and the case is governed at least in part by the Tort Claims Act, 42 Pa. C.S. §§ 8541-8564). (Transfer Order at 1, March 29, 2012.)
On appeal, Herdelin argues that the trial court erred in granting summary judgment because the content of Chitwood's Press Statements about Cheers was made outside the course of Chitwood's official duties, thereby constituting an abuse of his status as a high public official and causing a corresponding loss of the absolute privilege accorded to high public officials. (Herdelin's Br. at 9.) Herdelin contends that Chitwood's immunity was lost when Chitwood knowingly made reckless, false statements and pursued his own agenda in calling press conferences and making his remarks about Herdelin. (Herdelin's Br. at 13.) Essentially, Herdelin argues that Chitwood's offending remarks were made outside the ambit of his duties and, therefore, were not privileged.
This Court's review of a grant of summary judgment is limited to determining whether the trial court committed an error of law or an abuse of discretion. Kaplan v. Southeastern Pennsylvania Transportation Authority, 688 A.2d 736, 738 n.2 (Pa. Cmwlth. 1997). "A motion for summary relief may be granted only where no material fact is in dispute and the right of the moving party to relief is clear." Bussinger v. Department of Corrections, 29 A.3d 79, 81 (Pa. Cmwlth. 2011) (quoting Brown v. Department of Corrections, 932 A.2d 316, 318 (Pa. Cmwlth. 2007)). The appellate standard of review is de novo when a reviewing court considers questions of law. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 465, 926 A.2d 899, 903 (2007). In reviewing questions of law the scope of review is plenary, as the reviewing court may examine the entire contents of the record. Id.
Herdelin does not dispute the trial court's determination that Chitwood is a high public official. (Trial Ct. Op. at 4-5.) In his brief to this Court, Herdelin "concedes that [] Chitwood is the [S]uperintendent of Upper Darby Police and that in his position he is a high public official." (Herdelin's Br. at 12.) See generally Lindner v. Mollan, 544 Pa. 487, 495-97, 677 A.2d 1194, 1198-99 (1996) (discussing the parameters establishing "'high public official status'" conferred upon specific public officials, including township supervisors, deputy commissioner of public property and city architect, state Attorney General, mayor, borough council president, county attorney, city revenue commissioner, city comptroller, district attorney and assistant district attorney, and Superintendent of the Parole Division of the Board of Probation and Parole).
Our Supreme Court has explained the rationale for the absolute privilege as being "the public interest in seeing that the official not be impeded in the performance of important duties." Durham v. McElynn, 565 Pa. 163, 167, 772 A.2d 68, 70 (2001). "To subject [high public officials] to liability would deter all but the most courageous and most judgment-proof from vigorously performing their . . . functions." Id. As stated by this Court:
This absolute privilege has as its purpose the protection of society's interest in the unfettered discharge of public business and in full public knowledge of the facts and conduct of such business . . . [and] is thus a means of removing any inhibition which might deprive the public of the best service of its officers and agencies.
Herdelin argues that Chitwood went outside the scope of his position, stating that: "no other police commissioner behaves in this way"; "[i]t is not the role of a police commissioner to say something he knows is not true about a citizen simply because he wants to entertain the press"; "the remarks were a clear departure from those expected of a police official and . . . were, in fact, outside the scope of any alleged official duty"; and that "this is a lawsuit against a man who has abandoned his role as an objective law enforcement official to cater to his interest in being a 'personality' worthy of press attention." (Answer to Motion ¶¶ 25-26, 32, R.R. at 305a, 307a.)
Our Supreme Court has explained that, where statements are made in the course of the official's duties within the scope of his authority or jurisdiction, high public officials are exempt from all civil suits for damages arising out of their statements, even if false or defamatory, and even if motivated by malice. Matson v. Margiotti, 371 Pa. 188, 194, 88 A.2d 892, 895 (1952). Our Supreme Court has continually reaffirmed the doctrine of absolute privilege for high public officials in applicable circumstances. See, e.g., Durham v. McElynn, 565 Pa. 163, 167, 772 A.2d 68, 70 (2001) (affirming dismissal on preliminary objections to a tort action against an assistant district attorney); Lindner v. Mollan, 544 Pa. 487, 497, 677 A.2d 1194, 1199 (1996) (affirming summary judgment in a defamation action against a mayor who stated at a borough council meeting that the chairman was a "village idiot" who had been "dipping into the till"). Moreover, in Lindner, 544 Pa. at 491-92, 677 A.2d at 1196, our Supreme Court confirmed that Section 8550 of the Tort Claims Act did not abrogate the common law doctrine of absolute privilege for high public officials, even in the case of willful misconduct.
The trial court made no finding about whether Chitwood's Press Statements were defamatory to Herdelin because it was not necessary to reach that issue to resolve the legal issues presented in this case.
Herdelin does not raise any argument regarding Section 8550 of the Tort Claims Act in this appeal.
This Court has repeatedly applied this doctrine. See, e.g., Suppan v. Kratzer, 660 A.2d 226, 230 (Pa. Cmwlth. 1995) (holding that regardless of the language of a statute providing immunity for employees of local agencies, "[a] mayor and a borough council president are high public officials entitled to the absolute privilege"); Petula v. Mellody, 631 A.2d 762, 766 (Pa. Cmwlth. 1993) (holding that the common law absolute privilege for high public officials applied to three school superintendents); Factor v. Goode, 612 A.2d 591, 592-95 (Pa. Cmwlth. 1992) (affirming dismissal on preliminary objections to a defamation action against the Mayor of Philadelphia and the Revenue Commissioner, who identified property owners as "deadbeats" and "tax cheats" at a press conference). See also McKibben v. Schmotzer, 700 A.2d 484, 491 (Pa. Super. 1997) (holding that high public official immunity applied to a mayor who made comments in a news release that, although harsh and untrue, were closely related to her duties as mayor); McCormick v. Specter, 275 A.2d 688, 689 (Pa. Super. 1971) (holding that even though a district attorney's statements regarding an ongoing investigation by the city may have been excessive, they were nonetheless closely related to a matter pending within his office and, thus, within the scope of the privilege).
Our review of this matter confirms that Herdelin did not provide any facts or evidence to support that Chitwood's Press Statements were made other than within his role as Superintendent of Township Police. Accordingly, we agree with the trial court's determination that Chitwood made the Press Statements when he "was speaking to the press in the course of his official duties" as Superintendent of Township Police. (Trial Ct. Op. at 2.) Therefore, because the trial court has accurately articulated and thoroughly analyzed the issues, and correctly applied the law, this Court affirms the Order of the trial court on the basis of the well-reasoned opinion issued by the Honorable Chad F. Kenney of the Court of Common Pleas of Delaware County, in Robert Herdelin v. Michael Chitwood, (Delaware County, Civil Division No. 10-5522, filed January 20, 2012).
We note that our Superior Court was faced with determining the proper bounds of high public official immunity in McKibben. In McKibben, a borough mayor accused the borough police chief of assaulting her and, as a result, the mayor suspended the chief for insubordination, assault, and battery. The mayor then issued a news release explaining the chief's suspension and describing the "brutal and unprovoked assault" on her. McKibben, 700 A.2d at 487. After the district attorney refused to file criminal charges against the chief, the mayor filed a private criminal complaint against him for simple assault. A preliminary hearing was held on the assault charges at which the criminal complaint was dismissed. Immediately after the preliminary hearing, the mayor made a statement to reporters accusing the chief of lying on the witness stand. The chief then filed a defamation action against the mayor. The chief prevailed and, on appeal, the Superior Court held that high public official immunity applied to the mayor with respect to the news release because the mayor "was empowered to suspend [the chief], and her comments in the 'News Release,' although harsh and, as the jury found, untrue, were 'closely related' to her duties of supervising the borough police force." Id. at 491 (emphasis added). However, the Superior Court held that the immunity did not apply with respect to the mayor's statement that the chief was lying because there, the mayor "was no more than a private citizen seeking to enforce her private criminal complaint." Id. at 492 (emphasis in original). Recently, the Superior Court's reasoning in McKibben was applied by the United States Court of Appeals for the Third Circuit when exploring "[t]he proper bounds of the immunity" under Pennsylvania law. Smith v. Borough of Dunmore, 633 F.3d 176, 181 (3d Cir. 2011). --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, October 12, 2012, the Order of the Court of Common Pleas of Delaware County in the above-captioned matter is hereby AFFIRMED on the basis of the opinion issued by the Honorable Chad F. Kenney of the Court of Common Pleas of Delaware County, in Robert Herdelin v. Michael Chitwood, (Delaware County, Civil Division No. 10-5522, filed January 20, 2012).
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED CONCURRING OPINION BY JUDGE McCULLOUGH
I concur with the Majority's ultimate conclusion to affirm the entry of summary judgment so as to terminate this case. However, I do not see this case as turning on the application of the "high public official" doctrine of immunity. Rather, summary judgment should be entered against Appellant for two very straightforward reasons. First, Appellant filed this action in his own name, as an individual. The alleged defamatory statements were not directed to him individually, but rather to "Cheers", a bar purportedly operated by Appellant. It is also noteworthy that the owner of Cheers (and the liquor license) is not Appellant, but rather 6840 Market Street Inc., a Pennsylvania corporation. It is therefore clear from the record that even if the alleged statements were found to be defamatory, Appellant does not have standing to pursue this cause of action in his own name.
Second, because there is ample, unrefuted evidence on the record to support the veracity of Police Superintendent Chitwood's comments, summary judgment should be entered against Appellant based on the straightforward maxim that "truth is a defense" to a defamation action.
As the Majority notes, there have been over 300 police reports concerning the establishment, a trial court opinion affirming the PLCB's denial of a liquor license renewal for the establishment, along with a letter from the PLCB to appellant noting its refusal of the liquor license renewal application, and that the case for liquor license renewal was closed. Additionally, as the Majority notes, there have been a string of criminal investigations and complaints about the establishment, including the November 2009 homicide which prompted the police Superintendent's remarks. Based upon the significant amount of adverse evidence as to the nature and reputation of the establishment, the comments made by Appellee were substantiated.
I respectfully diverge from the Majority opinion insofar as it concludes that this case is distinguishable from McKibben v. Schmotzer, 700 A.2d 484, 491 (Pa. Super. 1997), wherein our Superior Court addressed the application of high public official immunity. In McKibben, a statement made by a high public official, the mayor of a local municipality, about the police chief who was under her supervision, was held to be outside the scope of the immunity. The Superior Court determined that the mayor was acting as a private citizen when she commented about an individual who was no longer the focus of a criminal proceeding. In this instance, the statements were also made about an entity that was not the direct focus of the criminal proceeding, i.e., the November 2009 homicide, which underlies this case. I therefore do not see a legal distinction between the two cases.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Factor v. Goode, 612 A.2d 591, 593 (Pa. Cmwlth. 1992) (internal quotations and citations omitted).