Appel v. Township of Warwick

port a of law finding that Claimant received basis for its contest is one based wages during period. upon brought the contest was this we do disputed not believe the in not issue or genuinely erred resolve awarding purposes merely credit or modification of ben- for of harassment.” Id. period. efits for this at 750.

Board’s Decision at 6. Here, denied Claimant’s re- WCJ quest attorney’s upon for fees based Cross-Appeal Claimant’s finding of reasonable contest and the Claimant contends that because the review, After this Board affirmed. Court WCJ and the Board determined that Em properly concludes that the WCJ found ployer collaterally estopped from de Employer a reasonable basis to nying causation Claimant was entitled to matter, contest this i.e. “whether or not attorney’s an award fees. receipt Lung Claimant’s of Heart and Ben- Section 440 Compensa- of the Workers’ award, efits alone with no formal would be (Act)9, § provides: tion Act 77 P.S. enough collaterally estop Defendant (a) In any [Employer] re-litigating contested case in- the issue of where the surer has causation.” contested whole or Board’s Decision at 7. part ... the employe depen- or his Accordingly, this Court affirms the dent, be, may as the case in whose favor grant of compensation Board’s benefits the matter at finally issue has been attorney’s the denial of fees. termined whole or shall be

awarded, in addition to the award for ORDER compensation, a reasonable sum for NOW, AND day July, this 10th fee_: attorney’s costs incurred for Compensation the orders of the Workers’ Provided, attorney That cost for fees Appeal above-captioned Board mat- may be excluded when a reasonable ba- ters are affirmed. sis the contest has been established for insurer, by the employer or the (empha- added). sis prevails

“When a claimant in a liti case,

gated the WCJ must assess counsel against fees pursuant defendant APPEL, Appellant, Act, § Section 440 of the 77 P.S. unless the defendant establishes a reason TOWNSHIP OF WARWICK and able basis the contest.” Scher v. Work Lawrence V. Edwards. Compensation ers’ Appeal (City (Pa. Philadelphia), Pennsylvania. Commonwealth Court of Cmwlth.1999), citing Weiss v. Workmen’s Argued June (Birch), Compensation Appeal Board July Decided Pa.Cmwlth.361, 839, petition denied, allowance 536 A.2d “The issue of

whether the defendant had a reasonable

12/31/97, longer working.” he was no N.T. 9. Act of P.L. as amended. June 7; R.R. at 234a. 12/15/98 Blumenthal, ap- Doylestown, D.

John pellant. Scott, Philadelphia, appel- E.

Mark lees. COLINS, Judge, President

BEFORE: McGINLEY, SMITH-RIBNER, Judge, FRIEDMAN, Judge, Judge, SIMPSON, LEADBETTER, Judge, LEAVITT, Judge. Judge and BY LEADBETTER. OPINION appeals from an order of Bucks Pleas of the Court of Common (common granted pleas), which County in favor of Lawrence summary judgment Township of and the Warwick V. Edwards challenges legal (Township). Appel acting within conclusion that Edwards was of his official duties as lia- immune from supervisor and therefore allegedly defam- the time he made bility at We affirm. atory statements. dispute. case are not The facts of this the Warwick September On (Board) Supervisors Board of statements were under- [Edwards’] stood those attendance at the Su- held a at which pervisor’s [Appel], Meeting refer Township supervisor, were both [Edwards] intended his remarks present. During meeting, Appel made [Appel]. refer to it known that he wished to bring matter By 11. reason of malicious [Edwards’] to the attention of the Board. Before utterances, [Appel] damaged has been Appel opportunity had an speak, Ed- good reputation his name and and has opposed Ap- wards stated that he was scorn, ridicule, been and con- pel speaking at and accused tempt community which he Appel being an admitted thief of both resides, all to damage. his Township and personal property. Follow- Further, proximate 12. as a direct and comments, Appel Edwards’ addressed result of [Edwards’] malicious utter- regarding a street drainage ances, [Appel] physi- has sustained acute problem. On December distress, humiliation, cal and emotional complaint filed a against Edwards and the embarrassment, and aguish. Township alleging, part, relevant that: 13. Because of the malice and ill-will 4. At all relevant times ... Edwards in uttering [Edwards] the slanderous duly Supervisor was elected statements, [Appel] is entitled to recover Township of acting Warwick and was punitive damages.

within scope regular his duties 19, 2001, On December Edwards and the employment and and at all relevant Township summary judgment, moved for servant, times acting agent, as the claiming they judgment are entitled to aas employee and/or matter of law because “[a] Su- Warwick. pervisor is within the class of individuals high public

identified as “a official” who are immune from tort when the provocation Without ... Edwards alleged perfor- tort is committed in the announced, publicly presence in the and mance of functions.” his hearing of persons the other assembled answer, Appel averred that Edwards was at the meeting, [Appel] was an ad- acting scope authority outside the of his mitted thief township property and an the time the comments were made. On admitted thief of property belonging to a May pleas common granted sum- private organization. mary judgment favor of the Township.1 present filed the [Edwards’] statements were mali- appeal.2 ciously false and were known [Ed- at the

wards] time of their utterance to R.A.P.1925(a),3 Pursuant to Pa. common be untrue. pleas opinion explaining filed an 1035.2(1) provides, 1.Pa. R.C.P. No. in rele- discovery could be established additional part, vant that: expert report ... closed, After pleadings the relevant are but pleas judgment 2. Common entered in favor of within unreasonably such time as not to Township. sovereign based on trial, delay any party may move for sum- present appeal, Appel In does not contest mary judgment in whole or in Township. in favor of the matter of law 1925(a) provides 3. Rule that: genuine whenever there is no issue of (a) necessary material fact Upon receipt as to a element of the notice of from, judge cause of action or appealed defense which who entered the order are high public officials privilege, Ed- Township supervisor, capacity his exempt official. In addi- was a wards

tion, concluded that the doctrine the court arising damages suits for from all civil him from privilege shielded of absolute defamatory statements out of false at the Board liability for his statements moti- or actions even from statements conclusion. meeting. Appel challenges this malice, the statements vated taken in the the actions are are made or Initially, Appel argues that deter powers duties or course the official’s Edwards exceeded mination of whether authority, his scope within the authority question of his expressed, within as it is sometimes Flaherty in jury and cites Rok v. fact for ... jurisdiction 106 Pa. support this contention. 194, 188, Pa. 88 Margiotti, v. 371 Matson (1987), 570, 211 Cmwlth. 892, (emphasis original). A.2d 895 (1988). 628, denied, 517 Pa. 588 A.2d 880 Mollan, Pa. 677 In v. 544 Lindner to the cir question there is no as When (1996), and chair a councilman A.2d 1194 allegedly de under which an cumstances sued the the finance committee man of made, was the famatory communication defamatory re borough for mayor of the of whether that communication question course of a bor during made the marks of law to be privileged question meeting During the meeting. council ough v. judge. Montgomery See decided budget deficit and borough’s the and while Dennison, 255, 264-265, A.2d Pa. 69 363 discussed, being were financial situation (1949). case is distin 525 The instant councilman: “And said to the mayor the here there is from Rok because guishable face; you’re the your say I’ll dispute the circumstances under no as to dipping into ... You’ve been village idiot allegedly made his defam which Edwards you a fact. And know till. I know for the Rok, Furthermore, atory comments. A.2d at 1195. Id. at 677 I know.” city the case to allow we remanded summary affirmed Supreme Court answer, to file an not to allow controller mayor. The in favor of the to wheth jury make a determination as mayor permitted that the Court stated were city controller’s statements er the borough council meet to attend statute scope employment. of his made within the statutory authority over given ings and is aas Thus, the Court reasoned matters. fiscal liability for supervisor, is shielded from in a that, mayor engaged “was because the during made statements of the Yeadon with members discussion law, over which meeting is a conclusion fi Borough’s Borough about Council Phillips plenary review. See we exercise affairs, a matter within which is nancial Co., 124, 130, 665 Prods. 542 Pa. v. A-Best scope and the of his duties the course (1995). A.2d 1170 Mayor,” his comments authority as his official made within that town were It is well-established coun immune from the duties and he was public officials.” ship supervisors “high are Id. at Bodick, and libel suit. 244 A.2d cilman’s slander Jonnet of 677 A.2d at 1199. the doctrine 753 Under complained rulings matters already or other for the order do not if the reasons of, place writing the record, specify in or shall file of rec- appear shall forthwith may be statement, reasons such the record where in the form at least a brief ord order, found. opinion, of the reasons for an (Pa. case, Hall was not Kiger, meeting In Hall v. cil in that alloc, denied, Cmwlth.2002), August Pa. subject at the pertinent (2002), brought A.2d 846 Hall Borough suit Coun- the Lincoln councilman, against Kiger, a local for de cil; nevertheless, Hall was related famatory comments made the council he initial- discussion because during borough meeting. Kiger’s man ly raised the issue. response statements were made in added). (emphasis Id. at 501-502 borough’s police Hall’s criticism of the from this Appel distinguishes Lindner response chief. allegations to Hall’s no by arguing case that there were police chief, regarding the the councilman Township supervisors issues before only reported not of his investi results allegedly the time Edwards made his gation challenged of the chief but also famatory for this rea- comments and credibility. Kiger Hall’s stated Hall son, protected by Edwards is not the doc- physically family had been abusive to his disagree. they sought protection-from- and that trine of absolute We In A of Hall that a reading abuse orders result his conduct. close reveals reversing entry remanding judg public official is immune defamation Kiger, ment n.o.v. favor of we identified if com- even the suits that are particularly two factors relevant plaintiff perti- the are not regarding ments in determining whether the doctrine of discussion, topic of nent to the privilege applicable high absolute is to plaintiff had made a conscious the 1) public formality officials: the in a formal engage decision to the official in allegedly defamatory forum which the of regarding legitimate forum matter spoken published, comments were Thus, public fail to see concern. we 2) relationship subject legitimate the Appel’s argument meaningful distinction person of concern to the specific topic that a of light of the fact seeking damages defamatory for the utter inevitably dictate discussion will not when Hall, In ance. Id. at 501. we stated that: immunity applicable. is mind,

With these factors in conclude we that, undisputed It at the time is Kiger’s that Councilman statements comments, he act Edwards made his closely were legitimate related to his supervisor an official Township (1) duties, because, above, as noted he re Township meeting. One of Edwards’ made the in the of a statements context supervisor Township sponsibilities public meeting performing while his of the and concerns was to hear issues duty report as councilman to on a mat- Thus, Ap- when local residents. great public ter of concern that had to address the pel requested permission subject been initiated the of the de- Board, a conscious deci Appel had made Lindner famatory comments. the the other engage to Edwards and sion case, public official voiced his con- public supervisors in their official role as although meeting, cerns at a formal regarding a in a formal forum servants directly did not relate his statements concern, namely, a street public of concern, matter subject public the bud- Consequently, drainage problem. did re- get, statements any issues actually raised or not relationship person late to a who bore a defamatory comments before budget. Just as the issue relevant, irrelevant. What is were made is 'per- not the councilman in Lindner was however, relationship to Appel’s at the coun- tinent discussion Thus, voluntarily public support Board after he decided to stand continued of voters. up participate process provides the official an effective the electoral relationship, It meeting. is this a Town- officials mechanism deter ship supervisor at a addressing resident intimidating defaming citizens who Township meeting, on which we base our speak in choose to exercise their decision favor of absolute public forums. important It is to note that immu Accordingly, having determined that defamation,

nity liability from civil properly summary pleas entered common upon the that conduct which “rests idea we affirm. in favor escape otherwise would be actionable is to acting because the defendant is ORDER of social im furtherance of some interest portance, protection which is entitled to NOW, day July, AND this 10th uncompensated even at expense Pleas of the order of Court Common Montgom plaintiffs reputation.” harm to County captioned mat- Bucks the above ery City Philadelphia, hereby ter is AFFIRMED. (1958). immu nity grounded principles on BY Judge DISSENTING OPINION policy; is “not for benefit FRIEDMAN. public officials but for the benefit of respectfully majority I dissent. The Felix, public.” Pa.Super. Barto v. holds that the Court of Common Pleas of while it is (trial court) County properly Bucks con- objec often difficult to defend otherwise conduct, cluded based on the doctrine of abso- tionable courts must be mindful of (Ed- objectives privilege, lute significant policy associated Lawrence Y. n with wards) immunity, protection summary judgment such as the to is entitled public’s right to full him brought against disclosure the defamation suit government facts and conduct of business. Appel (Appel). For the follow- Furthermore, while it is obvious that Ed reasons, agree. I cannot individually comments taken do not wards’ a Edwards is member Warwick importance, further some interest of social (Board); Supervisors Board of role in the participation Edwards’ a township supervisor, Edwards is it Township meeting Accordingly, does. is the Board’s “high public official.”1 At important activity this societal which we 7, 1999,meeting, Appel made it September im protect holding seek to Edwards bring to a matter to known that he wished “removing any inhibi thereby mune and of the Board. The minutes the attention public might deprive tion which state: agencies.” best service of its officers that before Mr. Mr. Edwards said Montgomery, 392 Pa. at opposed speaks, vehemently “he is to Furthermore, also note that ob we an admitted Appel speaking. Mr. He is on the jectionable defamatory comments He is an Township property. thief of part high public generally officials are property personal admitted thief of public offi the fact that inhibited private organization, only and not municipalities cials in local are for (inaudible)”. it is a well know fact that part dependent upon the most elected and Bodick, 753 431 Pa. 1. Jonnet v. official, has no high public interrupted

Mr. Peluso Mr. As to defame a citizen for advice, privilege absolute taking Ms. Sehaafs words as right merely exercising his constitutional Appel’s speak. to right that is Mr. freely to speech municipal free or to should not treat citizen this We meeting. The doctrine speak public at a matter. public officials privilege given absolute (Minutes meeting, p. 09/07/1999 shield, not as sword. be used 2). Appel proceeded speak then Otherwise, like citizens will be treated a road. drainage problem Board about a on they totalitarian climate when there privilege pro- The doctrine of absolute assemblies, the citizens public attend with exempt vides that officials are raising speaking their hands or fear of arising damages from all civil suits for could intimi- out because officials defamatory out of false statements and fear date them and defame them without or even from statements actions moti- of retribution. malice, vated the statements I that the doctrine of Because conclude are made or the actions are taken in the immunity protect does not Ed- powers course duties or official’s damages, I Appel’s wards from suit for the authority, within would of the trial court’s reverse expressed, as it is sometimes within his granting summary judgment order fa- jurisdiction_ vor of Edwards and remand this case for Margiotti, Matson v. proceedings. further (1952) A.2d (emphasis original). joins in this SMITH-RIBNER helped Two factors have courts determine dissent. whether the doctrine privilege of absolute (1)

applies particular in a case: the formal-

ity of the forum in which the spoken comments were

published; and relationship

legitimate subject concern In re TAX OF REAL PROPER SALE to the person seeking damages for the TY IN SITUATED JEFFERSON defamatory utterance. Kiger, Hall v. TOWNSHIP, County, Penn Somerset 497, (Pa.Cmwlth.), denied, A.2d sylvania, Tax No. Tax I.D. Sale Pa. 813 A.2d 846 No 20-006510. Here, legitimate subject there was no governmental concern before the Board Ruffner, M. Susan the time Edwards made his famatory only comments. re- Wayne Beeghly and J. Somerset quested permission speak. alleged Tax Bureau. Claim already accompli by defamation was a fait permitted the time to raise the Appeal of M. Susan Ruffner. drainage problem of a on a road. issue Pennsylvania. Commonwealth Court allegedly defamatory Because Edwards’ Briefs Submitted on June comments were not made connection July Decided any legitimate governmen- with concern, I com- tal would conclude that the

ments were not made within the

his official duties.

Case Details

Case Name: Appel v. Township of Warwick

Court Name: Commonwealth Court of Pennsylvania

Date Published: Jul 10, 2003

Citation: 828 A.2d 469

Court Abbreviation: Pa. Commw. Ct.