IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David George Lusick, :
Appellant :
:
v. : No. 1952 C.D. 2015
: SUBMITTED: March 31, 2017
Lynne Abraham, Elizabeth :
Varki Jobes, John Hunter Bennett, :
Thomas Dolgenos, Robert M. Falin, :
Ronald Eisenberg, Arnold Gordon, :
Lynne Herbert O'Connor, :
Karen Brancheau, Hugh J. Burns, :
Brad Bender, Andrew Klein :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
PER CURIAM FILED: July 14, 2017
David George Lusick, pro se, appeals from the May 4, 2015 order of
the Court of Common Pleas of Philadelphia County (trial court) that sustained the
preliminary objections filed by Lynne Abraham, Elizabeth Varki Jobes, John
Hunter Bennett, Thomas Dolgenos, Robert M. Falin, Ronald Eisenberg, Arnold
Gordon, Lynne Herbert O’Connor, Karen Brancheau, Hugh J. Burns, Brad Bender,
and Andrew Klein (Defendants), and dismissed Lusick’s case. We affirm.
On July 14, 1994, Lusick was found guilty of multiple counts of
involuntary deviate sexual intercourse, indecent assault, and corruption of minors,
and was sentenced to 12-35 years in prison. Lusick is currently serving this term at
the State Correctional Institution at Albion.
On August 26, 2009, Lusick commenced an action against
Defendants, who are District Attorneys (DAs), Deputy District Attorneys (DDAs),
and Assistant District Attorneys (ADAs) that prosecuted his criminal case at the
trial level, on appeal, and at state and federal post-conviction reviews. Lusick
asserted claims of malicious prosecution and malpractice arising out of his 1994
criminal prosecution.
On November 13, 2012, Lusick filed a motion for extension of time to
file an amended complaint. Thereafter, Lusick filed an amended complaint adding
additional defendants and alleging that Defendants: (1) violated the rules of
professional conduct and the American Bar Association standards; (2) fraudulently
concealed certain facts; and (3) failed to disclose certain facts and gave misleading
and incomplete testimony. (Amended Complaint, at 71-75; SRR at 77-81.)
In response, Defendants filed preliminary objections, seeking, among
other things, dismissal of Lusick’s case because the claims against Defendants are
barred by the doctrine of high public official immunity, and also because Lusick
failed to state a claim for which relief could be granted in his malicious
prosecution claim, as the underlying conviction had not been vacated. On May 4,
2015, the trial court sustained Defendants’ preliminary objections and dismissed
2
Lusick’s case with prejudice. Lusick appealed to the Superior Court, which
transferred the matter to this Court.1
Initially, we address whether the trial court erred in sustaining
Defendants’ preliminary objection that found Lusick’s case barred by the doctrine
of high public official immunity.
In Lindner v. Mollan, 677 A.2d 1194, 1195 (Pa. 1996) (citations
omitted), our Supreme Court stated that:
[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….
The doctrine of absolute privilege ‘rests upon the * * *
idea that conduct which otherwise would be actionable is
to escape liability because the defendant is acting in
furtherance of some interest of social importance, which
is entitled to protection even at the expense of
uncompensated harm to the plaintiff’s reputation….”
This sweeping immunity is ‘not for the benefit of high
public officials, but for the benefit of the public….’
1
Our review of a trial court’s order sustaining preliminary objections in the nature of a
demurrer is limited to determining whether the trial court abused its discretion or committed an
error of law. Holt v. Northwest Pennsylvania Training Partnership Consortium, Inc., 694 A.2d
1134, 1138 n.8 (Pa. Cmwlth. 1997). This Court must determine whether any recovery is possible
based on the alleged facts. Id. Further, “[w]e must accept as true all well-pleaded allegations
and material facts averred, as well as inferences reasonably deducible therefrom, and any doubt
should be resolved in favor of overruling the demurrer.” Id.
3
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….’
Here, Lusick alleges misconduct by the former Philadelphia DA and
numerous former and current DDAs and ADAs related to their official conduct
during various court proceedings while representing the Commonwealth of
Pennsylvania and prosecuting Lusick. Thus, because all Defendants are
prosecutors that are being sued because of their official conduct, the trial court did
not err in granting Defendants’ preliminary objection and dismissing Lusick’s case
pursuant to the doctrine of high public official immunity. 2 See Mosley v. Observer
Publishing Company, 69 A.2d 343 (Pa. Super. 1993) (granting preliminary
objections because DA was immune from suit as a high public official);
McCormick v. Specter, 275 A.2d 688 (Pa. Super. 1971) (finding DA immune as a
high public official when acting within his official duties).
Accordingly, we affirm.
2
Because all Defendants are immune from suit, we need not address Lusick’s remaining
issues.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David George Lusick, :
Appellant :
:
v. : No. 1952 C.D. 2015
: SUBMITTED: March 31, 2017
Lynne Abraham, Elizabeth :
Varki Jobes, John Hunter Bennett, :
Thomas Dolgenos, Robert M. Falin, :
Ronald Eisenberg, Arnold Gordon, :
Lynne Herbert O'Connor, :
Karen Brancheau, Hugh J. Burns, :
Brad Bender, Andrew Klein :
PER CURIAM
ORDER
AND NOW, this 14th day of July, 2017, the order of the Philadelphia
County Court of Common Pleas in the above-captioned matter is affirmed.