*1 captioned mat- in the above Appeal Board Claimant’s granting not err did WCJ affirmed. Employer directing and ter is to review . petition description of Claimant’s expand the com- injury on the notice of work-related injury to to include an payable
pensation knee.
Claimant’s left argu Employer’s respect to
With required pres that
ment Claimant prove evidence to unequivocal medical
ent replace total left knee required he
that
ment, surgery found the WCJ because con option for Claimant
feasible 19, 2001 for the March
servative treatment con longer was no injury to his left knee Antonio and ENTERPRISES OSIRIS as it had with Claimant’s taining pain Moscatiello, Appellants F. Dr. injuries. knee work-related previous reports, of his in one Thompson stated credible, that Claim found
which the WCJ WHITEHALL, Harold OF BOROUGH indication for that the one ant understood individually Berkoben, and as an L. uncontrolled knee surgery was for Whitehall, Borough official of cred that Claimant found pain. WCJ individually DePuy, and Kathleen N. only had occasional that he ibly testified Borough of an official of as prior knee March pain in his left Lahr, individually Whitehall, Philip J. found that Finally, the WCJ Borough of of the as an official replacement was for a total knee need McKown, Whitehall, individ Robert J. of the progression of a natural result the Bor ually an official of and as therefore, com it was injury; work-related Whitehall, Nagy, ough P. Glenn pensable. individually of the an official as herein, inju previously As stated Whitehall, Andrew Sak original from the or flow ries that result mar, individually and as an official disability. an increase injury represents Whitehall, Adam J. Moreover, a claimant’s Hospital. Jearns individually Barone, and as an official credible, alone, is suffi if found testimony Whitehall, F. Borough of James of. sus a reinstatement support cient individually an and as offi- Nowalk, Accordingly, we benefits. Latta. pended Whitehall, Lin- Borough of cial of the did not err the WCJ conclude individually as an Book, da J. petition reinstatement granting Claimant’s Whitehall, Borough of of the period for the awarding benefits individually Wotus, and as A. Jahn left to the total work due was off Claimant Whitehall, Borough of official of resulting from surgery replacement knee individually Ozemo, and as Thomas injury. work-related the March Borough of White- an official of individually Duffy, hall, R. James is affirmed. The Board’s order Borough of an official ORDER Omer, Whitehall, individual- Ruthann ly an official of and as June, NOW, day 20th AND Leventry, Whitehall, individ- E. James Compensation of the Workers’ the order *2 ually and as an official of the Bor-
ough Whitehall, Hudzema, Thomas
individually and as an official of the Marilyn Whitehall F.
Moore, individually and as of Whitehall. of Pennsylvania.
Commonwealth Court
Argued May 2005.
Decided June 2005. also 848 A.2d
See
' Steinberg, ap- Pittsburgh, Y. Arnold pellant. Marquis, Pittsburgh,
Christian D. appellees. SMITH-RIBNER, Judge,
BEFORE: FRIEDMAN, Judge, FLAHERTY, Judge. Senior Judge FRIEDMAN. BY OPINION (Osiris) Enterprises and Antonio Osiris (Moscatiello), (together, F. Moscatiello Plaintiffs), appeal from the qualified In- order the Court of Common Pleas of Osiris was the lowest bidder. (trial court), Allegheny County stead, which sus- bidding period Council extended objections tained the preliminary filed Project, on the Oakridge eventually Drive al, et (Borough), Whitehall Project prohibited re-bid the Defendants) (collectively, to Plaintiffs’ Sec- submitting bid.3 At that second Complaint ond Amended and dismissed meeting, same Council- prejudice all with counts various motion, man made a Robert McKown sec- defendants,1 past pres- all of whom are Sakmar, onded Councilman Andrew Council, pur- ent members of the “non-responsible” declare Osiris a bidder *4 to suant the doctrine of in the motion Borough.4 That carried immunity. However, unanimously. Council members alleged The facts in Plaintiffs’ Second bidding voted to debar Osiris from on Bor- Amended Complaint very are summarized ough any projects investigation without or briefly as is a follows. Osiris construction capacity knowledge perform, of Osiris’ to company doing in Pennsylvania business giving without Plaintiffs notice that 1995, by and owned Moscatiello. In a issue of responsibility Osiris’ would be in dispute per- arose connection with work at meeting raised and without afford- pursuant formed Osiris to a 1993 con- ing opportunity Moscatiello an to rebut the Borough. struction contract with the accusations that was not a responsi- Osiris parties settled matter out-of-court bidder. ble any finding without or admission of fault and, Plaintiffs’ part, pursuant on 2, 2001, Subsequently, on De- October settlement, agreed to take no rejected a summarily fendants bid Osir- legal further actions against other Project.” is for “the only Radford Plaintiffs arising out of the 1993 contract.2 other bid submitted on the Radford Pro- $95,000, ject approximately was for
Nevertheless, 1, during August 2001, an $49,200. Plaintiffs’ was for unopened bid meeting, Council did not 2003, award Osiris a contract for October of Defendants forbade Borough’s Project,” “Oakdale Drive though even the South Hills Area Council of Govern- remaining expired 1. Defendants pre-qualification in case as of the certifi- PennDot 2004, $978,760 date of the order include cate. was Plaintiffs’ bid of accom- Berkoben, L. DePuy, Harold Kathleen N. panied by a Over valid certificate. Plaintiffs’ Lahr, McKown, Philip J. Robert J. Glenn P. protests, bidding Council then extended the Sakmar, Barone, Nagy, Andrew Adam J. Lin- Project sixty period Oakridge Drive on Book, da J. Jahn A. Wotus Thomas Oz- days. challenged Oakdale's bid was in court emo. However, rather found to be invalid. Plaintiffs, than award the bid to Defendants Subsequently, 2. continued to submit Oakridge Project decided to Drive re-bid the projects bids various construction pre-qualification require- with the PennDot Borough, Borough accepted and the Plain- time, ment At Oakdale was the removed. proposals objec- tiffs’ bid comment or without bidder, prohibited were lowest and Plaintiffs However, tion. because Plaintiffs were never submitting from a bid. bidder, they any the lowest were not awarded projects. these originated apparently 4.This action when the According original 3. bid notice for the responsibility question of Plaintiffs’ Project, Oakdale Drive a would be consid- bid regard raised with 1993 contract dis- accompanied by void ered unless it was a pute, notwithstanding parties' the terms of the pre-qualification certificate. PennDot Oak- agreement. settlement dale Construction a low bid submitted $955,450; however, bid included Oakdale's 78). 2003) (R.R. (SHACOG)5 op. at at On slip “the East merits to award Osiris, O’Reilly Project” despite Judge granted Barlind fact June injunction enjoining the Bor- was the lowest bidder and was that Osiris non-responsi- recognized by responsible ough as a SHACOG Instead, Sanitary awarding and from Defendants awarded the ble bidder bidder. Project Project contract to Merante. East Barlind to the second lowest Sewers (R.R. 66-81.) However, bidder, O’Reilly Pennsylvania at violation of the statute, request mandatory injunc- 53 Pa.C.S. denied the for a competitive bidding tion, concluding authority con- § which he lacked requires contract responsi- order the to award the tracts be awarded to the lowest (See Thereafter, January 2003, Amended Com- to Osiris.7 Second ble bidder.6 ¶ rejected complaint first at plaint Plaintiffs’ bid on the amended Defendants 19-124.)8 ¶¶ “Sanitary Project,” though even 1-17 and Sewers $77,170.50. Plaintiffs’ bid the lowest civil July Plaintiffs filed a On seeking mone- Following rejection of Plaintiffs’ bid action Defendants *5 by Sanitary Project, tary damages allegedly for harm caused the Franco on Sewers Moscatiello, father, a Borough’s declaring filed in Osiris Moscatiello’s a the actions rejecting Borough “non-responsible” bidder and taxpayer lawsuit the (Merante), Inc. Plaintiffs’ bids various construction Contracting, A. Merante 22-59.) (R.R. enjoin in at seeking injunction projects Borough. a to preliminary objec- Following rulings from a non- Borough on motions, filed a awarding the Sani- tions and various Plaintiffs responsible bidder and Project He Amended on December tary Complaint Sewers to Merante. also Second (R.R. 117-29.) I, at In Count injunction compel to 2003. sought mandatory “Economic to to Osir- Plaintiffs set forth a claim for award the contract alia, Interference,” is, that De- Following hearings, alleging, inter the lowest bidder. each, concert, O’Reilly and in committed Timothy Honorable Patrick fendants unanimous O’Reilly) Borough’s wrongdoing through acts of (Judge found that to “arbitrary improper vote to declare Plaintiffs debarment of Osiris was and and non-responsible of a bidders and the result- and not the result full be capricious, future an exer- to debar Plaintiffs from investigation ing such decision warranted municipal allege au- Plaintiffs that Defendants bidding. of discretion these cise by depriving thereby Bor- harmed Plaintiffs thorities.” Moscatiello v. Whitehall (No. GD-03-005416, competitively to opportunity ough, filed June them procure- repre- violation of the federal governments bursed for 5. SHACOGis council of 60-64.) (See (R.R. senting municipalities in the also regulations. fourteen South at ment including County, 176b-84b.) Allegheny area of Hills S.R.R. at Borough. Part SHACOG does for of what municipalities Commu- to administer these O’Reilly's decision was affirmed 7. nity Development Block Grants various Borough, court in Moscatiello v. Whitehall this case, projects. municipal this SHACOG In (Pa.Cmwlth.2004). administering Project Barlind the East Borough. for the Plain- facts are taken from 8. The summarized Complaint, in- Amended which tiffs’ Second origi- According to Exhibit "1” to Plaintiffs’ through paragraphs 17 and corporates complaint, the contract award of the nal com- through 124 of first amended Plaintiffs’ Community higher bidder resulted plaint. Bar- fund the East Block Grant funds used to ($518,280) having Project to be reim- lind and, bid on projects, construction a “high public official”who was abso- as a consequence, profits Plaintiffs lost the lutely from liability immune a defama- they would by completing have earned (R.R. 1-19.) tion action.9 at Plaintiffs work they under the contracts that should appealed May to Supe- order Drive, been awarded in the Oakridge (S.R.R. Court, 187b-88b), rior at which Radford, East Sanitary Barlind and Sew- transferred the matter court.10 this (See Projects. ers Second Amended Com- (S.R.R. 202b.) at ¶¶ 118-28.) 3-51, plaint at R.R. at appeal, argue On Plaintiffs first that the II, Count Plaintiffs set forth a claim for relied on Lindner improperly trial court “Defamation,” alleging they suffered dismiss their action under the doctrine of injury financial aas result of Defendants’ immunity. According conduct in illegally and improperly brand- Lindner does not control here Plaintiffs, ing Plaintiffs as being “non-responsible” because that relatively case involved a in- “non-responsive,” publicizing significant libel and slander action that designation, thereby disparaging Plaintiffs’ preliminary objections. survived (See reputation within their profession. that, contrast, argue present matter ¶¶
Second 58-56, Amended Complaint at considerably grave involves more 128-29.) (R.R. circum- 22-59.) R.R. at stances, where pre- Defendants’ actions Defendants filed preliminary objections Plaintiffs, vented on four different occa- to Plaintiffs’ Second Complaint Amended sions, securing government-funded February alleging, relevant work, and, contracting therefore, the case that, part, members, *6 should not prelimi- have been dismissed on they are immune from pursuant suit to the nary objections. doctrine high public of immunity official because all of alleged actions taken point Plaintiffs also out that in pres- and statements made were within the Lindner, case, ent unlike the in situation scope of their duties authority pub- and as judicial there has been a (by determination (S.R.R. 88b-93b.) lic officials. Judge O’Reilly) that the of actions Defen- dants which caused the harm 27, 2004, to Plaintiffs
On
following argu
arbitrary
capricious.
were
briefs,
ment and the
of
filing
supplemental
acts,
arbitrary
contend that
capricious
the Honorable
Terrence W. O’Brien
O’Brien)
definition,
and,
(Judge
are intended to do harm
entered an order sustain
therefore,
ing
preliminary objections
Defendants’
those who commit them are not
liability.
Plaintiffs’ Second
immune from
Complaint
Amended
Plaintiffs further
that,
dismissing
suggest
all
if such
protected
counts
acts are
Defendants
with prejudice.
so,
doing
Judge
high public
In
under the doctrine of
official
Mollan,
Lindner v.
O’Brien relied on
immunity,
544
then new law should be made to
487,
(1996),
Pa.
tiffs
not
this determination
566 discharge public counter that the trial unfettered
Defendants in properly public knowledge court sustained the business and full objections high pursuant doctrine the facts and conduct of such business. immunity. public official We are con immunity Absolute is thus a means of to agree. strained removing any might inhibition which de- prive public of the best of its service Court, Pennsylvania Supreme in agencies. officers and 188, v. 371 88 A.2d Margiotti, Matson Pa. (1952), law doc- 892 set forth common Montgomery City Philadelphia, v. 392 privilege high public trine of absolute (1958). 100, Pa. 140 A.2d 102 officials, and, Lindner, recon- in the court Importantly, where is an official firmed the law that this doctrine remains privilege, any personal entitled to absolute Pennsylvania. explained immaterial, political or motives are as is privilege high the doctrine of absolute or of reason presence of malice want public officials probable able and cause or the fact unlimited implies, as its name may irrepa the innocent sometimes suffer exempts official from all Vilas, v. Spalding rable harm. 161 U.S. damages arising civil out suits for (1896); 631, 40 16 S.Ct. L.Ed. 780 defamatory statements and even false addition, sec Montgomery; Matson. or statements actions motivated commonly tion 8550 what is called malice, are provided statements Pennsylvania Political Subdivision Tort made or the actions taken are Act, § 42 which sets Claims Pa.C.S. powers course of the official’s duties or forth where official immuni circumstances scope authority, and within the his waived, ty abrogate can be does not it expressed, is sometimes within his privilege high jurisdiction. Lindner; Goode, Factor 149 from suit.
Lindner, at 1195 544 Pa. at A.2d de appeal Pa.Cmwlth. 612 Matson, (emphasis A.2d (quoting at 895 (1993). nied, Pa. A.2d *7 added)). obvious, immuni purpose pitfalls of absolute are and courts here to of ty possibility argu- is foreclose the suit. recognized have that there are valid This public doctrine against permitting officials ments Thus, liability.11 absolute designed protect the official from doctrine, applying the courts itself, expense, publici-
the suit from the public’s good sought balance the interest ty, danger defending of pub- of jury. encouraging unfettered discussion public faith of his actions before yet, pur- right lic business the undeniable beyond deeper And lies a protect reputa- individual to his or her pose, protection society’s interest postmaster general, the Montgomery, recognized of the In the court that statements sterling reputations innocent exempt “the merited even if those officer was from suit may destroyed by unscrupulous persons malicious); be Matson statements were false who, taking advantage public of their officials public (recognizing practice high some positions press the access to obtained vilify people officials slander innocent knowingly thereby, widely publish reckless or them- have little or no chance to defend who Id. at A.2d at false 140 defamation.” 'holding reputation, that but selves their (holding Spalding that al- 103-04. also See completely are im- these officials nevertheless damaged though seriously plaintiff was redress). legal mune from respect reputation financially and with to his
567 so, tion. In doing the “courts have de- dants qualify high public officials under clared that public Pennsylvania interest does not law. demand that all officials be entitled Next, we must consider whether Defen- privilege, absolute but only ‘high that allegedly dants’ actionable behavior was ranking protected.” officers’ be so Mont- made in the course their official duties.
gomery,
Plaintiffs cause
2001,
August 1,
also
to the
mation
relates
in
that
of this
results
a
dismissal
case
declaring
a non-responsible
vote
Osiris
is
that
conclusion that
inconsistent with
of
defamation,
to
cer
regard
bidder. With
Judge O’Reilly,
findings
whose
that Osiris’
help
tain factors
courts determine whether
arbitrary,
capricious
was
and
debarment
closely
the
the statements are
related to
an
of discretion should
been
abuse
(1)
legitimate
formali
official’s
duties:
the
in
through
as fact
matter
established
ty of the forum in which the words were
of the
application
the
doctrine
collateral
(2)
published;
or
the
spoken
and
relation
acknowledge
Plaintiffs
that
estoppel.
legitimate subject
ship
govern
Judge O’Reilly’s
taxpayer’s
case
a
suit
was
person seeking
mental concern
the
dam
to
relief,
injunctive
not a civil
seeking
action
ages
defamatory
for the
Hall.
utterance.
However,
money damages.
Plaintiffs
stated,
As
the trial court concluded that
of collateral es
contend
doctrine
a
non-responsible
the vote
toppel
apply
Judge O’Reil
should
because
legiti
to
bidder
related
Defendants’
(1)
impact
ly’s
findings
mate duties because:
statements
factual
and conclusions
made in
of a
were
the context
upon
presently
issues
before this
meeting
open
pub
that was
disagree.
court.14 We
(2)
lic; and
were made
the statements
O’Reilly’s
Judge
ruling
Defendants’
dealing
awarding
with the
of a
while
“arbitrary
capricious”
were
and
actions
Thus,
project.
also are
works
Defendants
does not affect whether Defendants are
immunity
respect
to
Plain
entitled
with
damages
civil
defamation claims.
immune from a
suit
tiffs’
Standish).
(R.R.
133-70.)
estoppel
relitigation
(Judge
Standish
at
Collateral
bars
argue
Judge
adopting
question
Plaintiffs
that instead of
a
of law or an issue of
issue where
analysis
respect
high public
O'Brien’s
with
judgment
actually litigat
fact
to a
essential
adopt
analy
immunity,
official
we should
the-
competent
ed
determined
a
Action,
Judge
sis of
in the Federal
Standish
Co.,
jurisdiction. Three Rivers Aluminum
legislative
he
wherein
ruled that absolute
im
Inc.,
Zoning Hearing
Marshall
v.
Board of
munity was
to bar Appellants'
not available
203, 618
Township, 152 Pa.Cmwlth.
A.2d
1983
Au
Section
claim because Defendants’
(1992).
estop
collateral
doctrine of
"managerial”
gust
constituted
vote
(1)
previ
pel applies
decided
when:
the issue
opposed
"legisla
"proprietary”
acts as
identical;
(2)
ously
there was
final
Scott-Harris,
Bogan
acts.
U.S.
tive”
v.
merits; (3)
judgment
parties
on the
were
(1998).
118 S.Ct.
L.Ed.2d 79
same;
(4)
had
full
defendants
that,
imply
under
Standish’s
litigate
opportunity
the issue
fair
August
ruling, we
that the
should conclude
case;
(5)
prior
the determination
2001, vote
was not taken
course
prior
judg
proceeding was essential to
high public
duties as
offi
Defendants' official
Zoning
City
Pittsburgh
Board
ment.
and, thus,
high public
cials
official
hold
n
Adjustment Pittsburgh, 522 Pa.
(See
immunity
apply.
does not
Plaintiffs'
that,
(1989).
It has
because
been held
However,
9-10.)
the doctrines of
brief
preliminary injunction is
grant
of a
not a
legislative
absolute
merits,
adjudication
final
on the
doctrine
immunity arise under different cir
*9
estoppel
inapplicable in
of
is
such
collateral
cumstances,
Standish never stated
Appeal
Britain
In Re
Little
Town
cases.
2001,
1,
of
August
that the
vote
not within
(Pa.Cmwlth. 1994), appeal
ship,
606
Borough
powers
Defendants’ duties or
645,
denied,
(1995).
Pa.
are taken the course of the official’s BY Judge OPINION DISSENTING powers
duties or
scope
and within the
SMITH-RIBNER.
Lindner,
authority.”
his
544 Pa. at
majori-
Here,
respectfully
I
dissent from the
Judge O’Reilly
spite O’Reilly’s ruling that the arbitrarily
Defendants capri- acted Osiris,
ciously their toward conduct
Defendants were nevertheless immune civil suit.
from I note that in Montgomery City v. HARRINGTON, In re Pitts- Moira C. Philadelphia, Pa. A.2d 100 burgh City Magistrate, Fifth Judi- (1958), Pennsylvania Supreme District, County. Allegheny Court cial that im- explained the doctrine absolute No. 6 JD 04. munity high public officialswas created Discipline Court of Judicial protect public officials from suit Pennsylvania. expense, from the publicity danger defending “good public faith” of the March 2005. public jury. officials’ actions before Affirming Order Decision over immunity any removes inhibition that Objections May 2005. might deprive public best ser- Imposing Order Sanctions from its public agencies. vices officers Id. presumed faith” of “good offi- performance of their
cials ability their repre-
duties best of
sents basis for the doctrine absolute ignored but that standard was case
by the Defendants and there- apply.
fore the doctrine should not That is
particularly judge so when a of the same
trial had ruled that the Defendants arbitrarily capriciously
acted in con- permanent with
nection debarment contracting further with the
county and has this Court affirmed
decision. See Moscatiello Whitehall (Pa.Cmwlth.2004).
Borough,
Even this case have been
ing, should not decided Orisis, objections when if proceed, may presented
allowed to sufficient
facts to establish the Defen- egre- actions were so
dants’ conduct and totally scope exceeded
gious they Therefore,
of their official duties. the trial reversed,
court’s order should be and this