Opinion
No. 1072 C.D. 2014
02-27-2015
Augustine Pescatore v. The School District of Philadelphia, The School Reform Commission, Arlene Ackerman, Estelle G. Matthews, Leroy D. Nunery II, Robert Archie Jr., Denise McGregor-Armbrister, Johnny Irizarry, Pedro A. Ramos, Lorene Cary, Joseph A. Dworetzky, Wendell E. Pritchett, Jamilah Fraser, Shana Kemp, Brendan Lee, Michael A. Davis, and Lt. John Augustine, Appellants
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
The School District of Philadelphia (District), the School Reform Commission, Arlene Ackerman, Estelle G. Matthews, Leroy D. Nunery, II, Jamilah Fraser, Shana Kemp, Brendan Lee, and Michael A. Davis (collectively, Defendants) appeal from the May 23, 2014, order of the Court of Common Pleas of Philadelphia County (trial court) granting in part and denying in part Defendants' motion for summary judgment. The trial court determined, inter alia, that material questions of fact exist on the issue of whether Ackerman, Nunery, Davis, and Matthews are immune from suit on the ground of high public official immunity. Because we conclude that this appeal is interlocutory, we quash the appeal.
The Pennsylvania Supreme Court has explained the high public official immunity doctrine as follows:
[T]he doctrine of absolute privilege for high public officials . . . "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."
Augustine Pescatore has worked for the District since 1987. In 2010, he was promoted to the position of Commander of Support Services in the School Safety Division. In September 2010, Pescatore served on a committee that oversaw the installation of security cameras in 19 "persistently dangerous" schools within the District. The committee awarded a $7.5 million contract to IBS Communications, Inc. (IBS) for the camera project.
A newspaper, The Philadelphia Inquirer (Inquirer), launched an investigation into the camera installation project because IBS was not on the approved vendor list and the committee had awarded the contract without a competitive bid process. As part of its investigation, the Inquirer published an article in which sources stated that Ackerman, the District Superintendent, had interceded to steer the camera project away from an approved vendor and toward IBS.
On November 15, 2010, several District employees met to discuss the Inquirer investigation. Pescatore did not attend this meeting. The employees who attended the meeting believed that Pescatore had cooperated with the Inquirer's investigation.
The District placed Pescatore on administrative leave from December 13, 2010, through January 24, 2011, while it investigated the camera installation project. On December 14, 2010, the District issued a press release stating that certain staff members had been placed on administrative leave pending an investigation.
On January 19, 2011, the District notified Pescatore that his suspension was lifted and that he could return to his position as Commander of Support Services on January 24, 2011. When Pescatore returned to work on that date, he was reassigned from Support Services to Patrol Services, which he believed was a demotion.
On January 24, 2011, the Inquirer published an article titled, "Four Whistleblowers Return." The article identified Pescatore as one of the six District employees who had been placed on administrative leave and one of the four who had returned. On March 4, 2011, the District issued a statement that there was "[n]o evidence of wrongdoing by the superintendent and chief executive officer [Ackerman] or deputy superintendent [Nunery] in the installation of security cameras in 19 'persistently dangerous' schools." Pescatore believed that by not mentioning him in the March 4, 2011, statement, the District implied that he had done something wrong.
Pescatore filed a seven-count complaint against 17 defendants, asserting violations of the Local Agency Law and the Pennsylvania Whistleblower Law, as well as causes of action for defamation, false light invasion of privacy, civil conspiracy, and aiding and abetting. Several defendants were dismissed from the case by way of summary judgment.
2 Pa. C.S. §§551-555, 751-754.
Act of December 12, 1986, P.L. 1559, 43 P.S. §§1421-1428.
On December 4, 2013, the remaining Defendants filed a motion for summary judgment. On May 23, 2014, after hearing argument on the motion, the trial court granted in part and denied in part Defendants' summary judgment motion. The trial court granted the motion as to the Whistleblower Law and civil conspiracy claims. The trial court denied the motion as to the Local Agency Law, defamation, false light invasion of privacy, and aiding and abetting claims.
Thereafter, Defendants filed a motion to certify the May 23, 2014, order for interlocutory appeal by permission pursuant to Pa. R.A.P. 312, which the trial court denied. Defendants now appeal to this court.
In their brief, Defendants concede that their appeal is interlocutory. They assert, however, that the issue of whether Ackerman, Nunery, Davis, and Matthews are protected by high public official immunity is collateral to the main cause of action and, thus, the appeal is proper under Pa. R.A.P. 313. We disagree.
An order denying, in full or in part, a motion for summary judgment is an interlocutory order from which there is no appeal as of right. See Pennsylvania Turnpike Commission v. Jellig, 563 A.2d 202, 204 (Pa. Cmwlth. 1989) (en banc), aff'd sub nom. Jellig v. Kiernan, 620 A.2d 481 (Pa. 1993); Szwecki v. Travelers Insurance Company, 471 A.2d 109, 110 (Pa. Super. 1984). --------
"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(b). For an interlocutory order to be collateral and appealable, all three elements must be present. See Fried v. Fried, 501 A.2d 211, 214 (Pa. 1985). 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); see Hammond v. Thompson, 551 A.2d 667, 668 (Pa. Cmwlth. 1988).
We reject Defendants' assertion that because high public officials have absolute immunity not only from liability, but from suit, the issue of high public official immunity is separate and distinct from the underlying tort claims. Numerous factual disputes must be resolved in order to determine whether Defendants acted within the scope of their authority and in the course of their official duties, whether Defendants acted with malice or reckless disregard, and whether Defendants acted in tortious concert with one another. As the trial court observed, the motivation behind Defendants' conduct is a disputed factual issue that directly relates to both the immunity defense and the intentional tort claims. (See Trial Ct. Op. at 15-18.)
In denying summary judgment, the trial court concluded:
Regardless of whether . . . Ackerman, [Nunery,] Davis, and Matthews are found to be high public officials for the purpose of immunity, one must be acting within the scope of their prescribed authority in order to retain immunity. It is not clear here, at the summary judgment phase, whether and to what extent these particular [Defendants] participated in the disciplining of [Pescatore], and whether and to what extent they stepped outside their routine duties in order to do so. There are simply too many remaining questions of fact in this case to dispose of an entire action based on high public official immunity alone.(Id. at 9.) We agree. Without further factual development, it would be premature for this court to invoke the collateral order doctrine and attempt to resolve the immunity issue. See Sylvan Heights Realty Partners, L.L.C. v. LaGrotta, 940 A.2d 585, 589-90 (Pa. Cmwlth. 2008) (en banc) (quashing an appeal from the denial of judgment on the pleadings on the basis of absolute immunity, where the plaintiffs alleged that a state legislator's tortious conduct was "'outside the scope of his jurisdiction and duties as a state legislator,'" because the immunity issue was not separable from the main action) (quoting record); Bollinger by Carraghan v. Obrecht, 552 A.2d 359, 363 (Pa. Cmwlth. 1989) (en banc) (quashing an appeal from the denial of summary judgment, where "[t]he affirmative immunity defenses[] being asserted in the pleadings[] raise factual and legal issues to be decided in the main cause of action").
Accordingly, we quash Defendants' appeal.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of February, 2015, we hereby quash the appeal of the School District of Philadelphia, the School Reform Commission, Arlene Ackerman, Estelle G. Matthews, Leroy D. Nunery, II, Jamilah Fraser, Shana Kemp, Brendan Lee, and Michael A. Davis as interlocutory and remand this matter to the Court of Common Pleas of Philadelphia County.
Jurisdiction relinquished.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
Lindner v. Mollan, 677 A.2d 1194, 1195 (Pa. 1996) (citation omitted).