Heller v. Fulare

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

7-6-2006

Heller v. Fulare
Precedential or Non-Precedential: Precedential

Docket No. 05-3687

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 PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 05-3687

RONALD C. HELLER; JOHN R. FLINN;
MATHEW W. LINDSEY;
OTTO G. BARTON, II; CHRIS WILLIAM BENDER
Appellees
v.

JERRY C. FULARE, a/k/a JEROME FULARE,
individually, and in his official capacity
as a Logan Township Supervisor,
Appellant
____________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 04-cv-00265J )
District Judge: Honorable Kim R. Gibson
____________

Argued May 17, 2006
Before: RENDELL, Van ANTWERPEN and WEIS, Circuit
Judges.
Filed July 6, 2006
____________

Stephen J. Poljak, Esquire (ARGUED)
Marshall, Dennehey, Warner, Coleman & Groggin
600 Grant Street
2900 U.S. Steel Tower
Pittsburgh, PA 15219

1
 Attorneys for Appellant

Stephen D. Wicks, Esquire (ARGUED)
109 Lakemont Park Boulevard
Altoona, PA 16602

Attorney for Appellees

OPINION

WEIS, Circuit Judge.
This appeal is from the District Court’s denial of common law
immunity to defendant, a township supervisor, for allegedly
defamatory comments made during meetings of the township’s
board of supervisors. The statements were based on information
defendant obtained in violation of the Board’s chain of
command policy, which was designed to discourage interference
with the police department by individual supervisors. The
District Court determined that by failing to abide by the Board’s
policy, defendant supervisor acted beyond his authority and thus
forfeited his right to immunity from suit. We conclude that the
supervisor is entitled to the absolute immunity granted to high
public officials by Pennsylvania law. Accordingly, we will
reverse and remand.
I.
Logan Township is a municipality in Pennsylvania designated as
a second-class township and, as such, is governed by an elected
board of supervisors. The defendant, Fulare, is a member of the
Board and plaintiffs are members of the township police
department. In 2002, the Board hired a new chief of police.
Because he had not previously worked as a police officer in
Pennsylvania, he had to pass a state certification examination.
Two of the plaintiffs reported to the township’s solicitor and
manager that the new chief of police had engaged in

2
 improprieties during the examination process.

During a regular, public meeting of the Board on September 8,
2004, Fulare stated that he had asked for an investigation of the
township police department by the state attorney general.
Fulare further stated that he wanted to learn of possible
misconduct or criminal activity within the police department.
In a subsequent Board meeting on September 23, 2004, Fulare
said that the individual who administered the certification
examination to the chief suspected a conspiracy by officers of
the police department against the new police chief with respect
to his certification examination. Fulare commented that the
“conspiracy theory hits the nail on the head.” 1
At a Board meeting on October 14, 2004, Fulare revealed that a
deputy attorney general had told him that there are “numerous
serious misconduct issues [with the police department] that the
Board should address” and that it should “hire a good attorney
and clean the place up.” Moreover, Fulare commented that he
found the “conspiracy theory pretty interesting.”
Before these events occurred, the Board had adopted a “chain of
command” policy with respect to communications between
supervisors and the police department. In a memorandum of
March 23, 2004 addressed to the township manager, the Board
wrote that it would communicate its directives on police matters
to the manager who would convey them to the police officers. In
turn, the officers were to report their concerns to the chief who
would pass them on to the manager who would then contact the
Board. The memorandum from the Board stated that it would

1
The allegations in the complaint and amended
complaint do not elaborate on the type of conspiracy Fulare may
have been alluding to. However, the accuracy of his statements
does not affect the immunity analysis. For this purpose we
accept the plaintiffs’ allegation that the statements were false
and injured the plaintiffs’ reputations.

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 “not participate in violating the order of the chain of command,
nor will they tolerate any deviation from the chain of command.”
The memo is consistent with the police manual that the Board
adopted some years earlier.

Plaintiffs filed a complaint against Fulare in the District Court
alleging federal constitutional violations of the Due Process
Clause and retaliatory actions contrary to the First Amendment.
In addition, an amended complaint included a count for
defamation under state law.
Fulare moved for dismissal of the defamation count on the
grounds of absolute immunity based on state law. The District
Court recognized that, under Pennsylvania jurisprudence, a
township supervisor is considered a “high public official”
generally entitled to a common law immunity for alleged
defamatory statements made during public governmental
meetings. However, the court concluded that immunity was not
available to Fulare in this case because his comments concerned
matters “not delegated to him under the Township code and
ordinances.”
The court observed that the improprieties asserted in connection
with the employment of the new police chief were attributable to
an outside agency that had administered the test and, as such,
were not properly related to township business and thus not
within the scope of Fulare’s authority. The District Court further
concluded, however, that if the alleged improprieties were
matters of township concern, Fulare’s activities violated the
township’s “chain of command” policy and, therefore, his
statements would have been outside the scope of his authority.
II.
Generally, a denial of a motion to dismiss, particularly when
only one count of a complaint is affected, would not support
appellate review in this Court. However, we have found
jurisdiction where a motion to dismiss is based on denial of
immunity under state law. See Kulwicki v. Dawson, 969 F.2d
1454, 1459 (3d Cir. 1992). As we cautioned in Brown v.
Grabowski, 922 F.2d 1097 (3d Cir. 1990), this exception to the

4
 general rule is limited to situations where the challenged state
law immunity applies as a ban on a suit itself, rather than as a
simple bar to liability. Id. at 1106.
Lindner v. Mollan, 677 A.2d 1194 (Pa. 1996), sets out the scope
of immunity for public officials in Pennsylvania. In Lindner, the
Supreme Court of Pennsylvania remarked, “absolute privilege 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.’” Id. at 1195 (quoting
Montgomery v. City of Philadelphia, 140 A.2d 100, 103 (1958)).
In light of this expansive definition of the scope and purpose of
Pennsylvania’s immunity for high public officials, we conclude
that we have appellate jurisdiction.
III.
Pennsylvania’s doctrine of absolute privilege for high public
officials
“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.”
Matson v. Margiotti, 88 A.2d 892, 895 (Pa. 1952) (emphasis in
original).2 The privilege is not for the benefit of the official, but

2
A number of opinions from the United States
District Courts in Pennsylvania have expressed the view that the
passage of the Pennsylvania Political Subdivision Tort Claim
Act (“PSTCA”), 42 Pa. Cons. Stat. §§ 8541, et. seq., abrogated
high public official immunity. See Weinstein v. Bullick, 827 F.
Supp. 1193 (E.D. Pa.1993); Lynch v. Borough of Ambler, No.
94-cv-6401, 1996 WL 283643 (E.D. Pa. May 29, 1996); Murphy
v. Orloff, No. 04-cv-3618, 2004 WL 2861891 (E.D. Pa. Dec. 13,
2004); Smyth v. Barnes, No. 94-cv-0930 1995 WL 576935
(M.D. Pa. Sept. 25, 1995). However, these district court cases
misconstrued Pennsylvania’s common law immunity. To the

5
 to protect “‘society’s interest in the unfettered discussion of
public business and in full public knowledge of the facts and
conduct of such business.’” Lindner, 677 A.2d at 1196 (quoting
Montgomery, 140 A.2d at 103).
In Hall v. Kiger, 795 A.2d 497 (Pa. Commw. Ct. 2002), the
Pennsylvania Commonwealth Court considered two factors to be
relevant to determining whether a high public official acted
within the scope of his duties at the time of the allegedly
defamatory statements: (1) the formality of the forum in which
the alleged defamation occurred; and (2) the relationship of the
legitimate subject of governmental concern to the person seeking
damages. Id. at 501.
The common law immunity of high public officials has its limits,
as the Superior Court of Pennsylvania made clear in McKibben
v. Schmotzer, 700 A.2d 484 (Pa. Super. Ct. 1997). There, the
mayor of a borough was entitled to immunity for harsh and
untrue statements she made in a press release explaining the
discharge of the police chief. However, the immunity did not
extend to comments the mayor made subsequently as a private
citizen following a hearing on the criminal complaint she had
brought against the police chief. The Superior Court emphasized
that the mayor’s press release was issued in her official capacity,
but her statements after the hearing were made when she was
“no more than a private citizen seeking to enforce her private
criminal complaint.” Id. at 492 (emphasis in original).
In the McKibben opinion, the Pennsylvania Superior Court
included a list of government officials considered to be high
public officials. Id. at 489-90. As the District Court recognized

extent that the doctrine is applied to those designated as “high
public officials,” it has indeed survived despite the statute’s
limitations as to other employees. See Lindner, 677 A.2d 1194
(Pa. 1996); Factor v. Goode, 612 A.2d 591 (Pa. Commw. Ct.
1992) (common law immunity for high government officials
survived the PSTCA). Accordingly, the district court opinions,
to the extent that they express doubt as to the continued vitality
of Pennsylvania’s common law high public official immunity,
are not correct.

6
 in the case before us, a township supervisor is entitled to that
designation. See Jonnet v. Dodick, 244 A.2d 751, 753 (Pa.
1968). We may therefore proceed to determine if the other
prerequisites for immunity have been satisfied.
As to authority over matters related to and involving the police
department, Pennsylvania statutes provide that a township board
of supervisors “shall provide for the organization and
supervision . . . of the police officers . . ..” 53 Pa. Cons. Stat. §
66902. In general, the Board is “charged with the general
governance of the township and the execution of legislative,
executive and administrative powers in order . . . to secure the
health, safety and welfare of the citizens of the township.” 53
Pa. Cons. Stat. § 65607(1).
There can be no doubt that the ultimate authority to oversee the
police department rests with the Board given the responsibilities
assigned to it by statute. The Commonwealth Court commented
in Penuel v. Uwchlan Township Police Commission, 397 A.2d
865 (Pa. Commw. Ct. 1979), that “[t]ownship supervisors . . . are
vested with broad authority . . . with respect to the employment,
compensation and termination of township police officers . . ..”
Id. at 867. The court went on to say, “where the Township
supervisors exercise that authority, they are, of course, bound by
their own rules.” Id.3
It is undisputed that Fulare’s alleged defamatory remarks
occurred during formal public meetings of the Board. These
statements are the foundation of the defamation claim before us.
Plaintiffs contend that “triggering events” for Fulare’s
statements occurred when he personally discussed the
certification improprieties with one of the township police
officers and when he contacted the attorney general’s office.
Plaintiffs assert that these actions violated the township’s written

3
In the Penuel case, the chief of police discharged
an officer without following the procedures set out in a
resolution previously adopted by the board of supervisors.
Because of that failure, the Commonwealth Court directed the
board of supervisors to reinstate the officer.

7
 policy that the Board would broach such matters first to the
township manager who would then follow up on the matter.
Even if we assume that the defendant’s conduct violated the
Board’s policy, that chain of command breach would not
constitute defamation, nor is that conduct relevant to the
defamation claim. It is immaterial that Fulare’s source of
information for the allegedly defamatory statements was derived
from activity arguably in contravention of the chain of
command. Instead, it is the content and context of the
statements that must be the focus of the immunity analysis.
Plaintiffs are attempting to stretch their complaint beyond the
claims for defamation by invoking the “chain of command”
policy.
In Lindner, the Pennsylvania Supreme Court repeated its
language from Matson, that absolute immunity protects an
official “even from statements . . . motivated by malice, provided
the statements are made . . . within the scope of his authority. . . .
” Lindner, 677 A.2d at 1195 (quoting Matson, 88 A.2d at 895).
An example of privileged speech that could be considered
malicious or a personal attack occurred in Linder, where the
mayor said, “And I’ll say it right to your face; you’re the village
idiot . . . You’ve been dipping into the till. I know for a fact.
And you know I know.” Lindner, 677 A.2d at 1194.
Similarly, in Factor v. Goode, 612 A.2d 591, 592 (Pa. Commw.
Ct. 1992), the mayor was immune from a defamation claim for
statements describing plaintiffs as “deadbeats” and “tax cheats”
who “think they’re above the law.” Another example occurred
in Appel v. Township of Warwick, 828 A.2d 469 (Pa. Commw.
Ct. 2003), where a township supervisor accused a citizen of
being “an admitted thief.” Id. at 471.
In Osiris Enterprises v. Borough of Whitehall, 877 A.2d 560 (Pa.
Commw. Ct. 2005), the borough council adopted a motion
declaring that a contractor was not a responsible bidder.
Recognizing the very real harm that could occur to a contractor
from such a designation, the Commonwealth Court nevertheless
applied immunity. The court said, “where an official is entitled
to absolute privilege, any personal or political motives are

8
 immaterial, as is the presence of malice or want of reasonable
and probable cause or the fact that the innocent may suffer
irreparable harm.” Id. at 566.
Similarly, in Hall, after a citizen requested that the council
investigate the chief of police’s possible criminal record, the
court did not consider whether personal motives or animus
affected a borough councilman’s public response that the citizen
physically abused his family.
It follows that because Pennsylvania courts have repeatedly
applied immunity to false statements as well as malicious ones,
the fact that Fulare may have obtained his information in
violation of a Board policy, does not remove the shield of
immunity.
Moreover, Fulare’s statements were made during formal
meetings and were within the ambit of the Board’s oversight of
the police department. These matters were statutorily entrusted
to the Board, and therefore the statements were within Fulare’s
jurisdiction as one of the township supervisors.
We conclude that defendant Fulare met all of the prerequisites
for the absolute privilege of a high public official under
Pennsylvania law. Accordingly, the District Court erred in
denying immunity. We will therefore reverse the order of July
19, 2005 as to the defamation count and remand the case to the
District Court for resolution of the remaining issues.

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