In re Petition of John F. DWYER, Charles Sludden, Jr., Thomas A. Oravecz, Peter P. Petresky, Linda Zerbe, Howard Grabert and Louis Guzzi
Supreme Court of Pennsylvania
Oct. 19, 1979
406 A.2d 1355
Edward C. German, Philip A, Ryan, Philadelphia, Philadelphia County, for petitioner at No. 45.
Robert Davis Gleason, Johnstown, for petitioner at No. 46 and for respondents at No. 45.
Nicholas A. Barna, Dist. Atty., for respondents in all three cases.
Richard A. Sprague, Philadelphia, Philadelphia County, for respondents at Nos. 44 and 45.
Stephen Jennings, Robert F. Jennings, Honesdale, Coroner, Wayne County, Stephen G. Bresset, Honesdale, Wayne County, for respondents at No. 46.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.
OPINION
LARSEN, Justice.
This is a case of first impression in this jurisdiction. It presents the issue of whether “quasi-judicial immunity”
On September 15, 1977, a safety inspector for the Pennsylvania Department of Labor and Industry conducted an inspection of the Allen Motor Inn, a three-story structure in Honesdale, Wayne County, which revealed numerous violations, of varying degrees of seriousness, of the Fire and Panic Act, Act of April 27, 1927, P.L. 465, § 2, as amended,
Between November 10, 1977 and March 29, 1978, attorneys for Mr. Petto requested three extensions of time for compliance with the November 10th order. These requests were in writing and were directed to the Industrial Board. The Industrial Board is an arm of the Department of Labor and Industry, see
Mr. Petto‘s first application for extension of time for compliance stated that several deficiencies had been corrected and that time was needed to retain an engineering firm to prepare necessary plans and specifications to correct the other deficiencies. Reasons stated in subsequent applications cited vаrious problems including family illness, harsh winter weather and the dissatisfaction with and dismissal of the engineering firm first retained by Mr. Petto. In each instance, the Building Advisory Board recommended that the applications be granted and the Industrial Board accepted said recommendations and, without hearings, granted the extensions for either 30 or 60 days.
On May 30, 1978, a request for a variance on certain height and structural limitations was made by Mr. Petto which request was conditionally granted by the Industrial Board on June 28, 1978. At that time, the Industrial Board advised Petto that “all other requirements of the Fire and Panic Regulations shall be met.” On January 12, 1978 and again on February 17, 1978, the safety inspectоr reinspected the Allen Motor Inn and found only minimal compliance with the November 10th order. Reports of these inspections apparently had been sent to either the Building Advisory Board or the Industrial Board but there is a dispute as to whether the reports actually were in the Industrial Board‘s files when it decided the applications for extension of time.
On November 5, 1978, tragedy struck at the Allen Motor Inn. A fire broke out there on that day which took the lives of twelve tenants of the Inn. While the immediate cause of
The Coroner of Wayne County, Robert F. Jennings, respondent herein, convened a Coroner‘s inquest into the circumstances leading up to and surrounding the fire. On April 24, 1979, a Coroner‘s jury made a recommendation that the members of the Industrial Board and the Building Advisory Board, petitioners herein, be charged with involuntary manslaughter,
Petitioners now request this Court to exercise our extraordinary jurisdiction pursuant to
The question of judicial immunity from criminal prosecution has been considered by this Court in McNair‘s Petition, 324 Pa. 48, 187 A. 498 (1936). In McNair‘s Petition, a judge on the Court of Common Pleas of Allegheny County convened a grand jury to determine whether certain magistrates were guilty of malfeasance or misconduct in office and to report to the court whether indictments against the magistrates were recommended. The allegations were that these committing magistrates had “violated the law” by,
McNair‘s Petition held:
“In certain instances [magistrate‘s] decisions are reviewable on appeal, but otherwise they must be left free to exercise an independent judgment in the conduct of their office. They cannot be subject to liability, civil or criminal, for any of their judicial acts, no matter how erroneous, so long as they act in good faith.” Id., 324 Pa. at 55, 187 A. 498.
[i]t is his [the magistrate‘s] discretion, his judgment, which must be exercised, for he is the officer entrusted by the law with the function of rendering a preliminary decision. In its performance he must be free from all external influences and, so long as he renders judgment in good faith, he is accountable to no one.” Id., 324 Pa. at 54, 187 A. 498.
In so stating, this Court sought to ensure the independence of the magistrates so that they may be free to exercise their discretion and apply their understanding of the law, whether correct or erroneous, to the facts and circumstances presented to them, unburdened by the threat of criminal prosecution for serious errors of judgment in that application. See United States v. Chaplin, 54 F.Supp. 926 (S.D.Cal.1944) (judges immune from criminal prosecution for acts performed in official capacity).
In the leading and often cited case on judicial immunity (albeit in the liability for civil damages area), Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1871), the United States Supreme Court eloquently stated:
The absolute need for an independent judiciary has not changed since Bradley. However, the modern era has ushered into our system of jurisprudence men and women who, in administrative agency proceedings, performed adjudicatory functions much the same as those performed by judges. Thеse men and women are called upon to exercise their discretion in applying statutes, rules, and often case law governing the particular administrative agency area to the facts and circumstances of each proceeding. The question has recently arisen, as it has here, as to the propriety of adoption of a “quasi-judicial” immunity to preserve the independence of these administrative agency officials in rendering their decisions.4
The United States Supreme Court has addressed itself to this issue in the seminal case of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). That case concerned the personal immunity of various federal officials in the executive branch from claims for damages arising from their alleged violations of citizens’ constitutional rights. The Department of Agriculture had instituted an administrative enforcement proceeding against a commodity futures
The United States Supreme Court held that those officials performing adjudicatory functions within an administrative agency perform a role “functionally comparable” to the role of a judge. For example, the hearing examiner may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. “We think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be [absolutely] immune frоm suits for damages.” Id. at 512-13, 98 S.Ct. at 2914, 57 L.Ed.2d at 920. This quasi-judicial immunity, as the judicial immunity, is necessary to ensure that agency adjudicatory decisions will be rendered independently, free from external pressures, harassment or intimidation.
The Court went on to state that agency officials performing functions analogous to those of a prosecutor should also be able to claim absolute quasi-judicial immunity with respect to their official acts. The rationale is that the decision whether or not to initiate administrative proceedings against an individual or corporation is closely akin to the prosecutor‘s absolutely immunized decision to initiate or move forward with a criminal prosecution. (Judicial immunity has long been recognized as applicable to the criminal prosecutor. Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), aff‘g. 12 F.2d 396 (2nd Cir. 1926).) The Court reasoned that the “discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted if their immunity from damages arising from that decision was less than complete.” Id. at 515, 98 S.Ct. at 2915, 57 L.Ed.2d at 921.
The general rules of administrative practice and procedure embodied in
The regulations of the Pennsylvania Code specifically provide for the discretionary granting of extensions, and of variances. The statutes and the Code contemplate exercise of agency discretion in the granting of extensions and variances and in the decision whether to initiate enforcement proceedings in a court of competent jurisdiction.5 See Commonwealth v. Durbin, 24 Pa.Cmwlth. 58, 354 A.2d 24 (1976).
Applying the principle of quasi-judicial immunity to the present case, we find that the petitioners are quasi-judicial and/or quasi-prosecutorial officers, that the proceedings at which the extensions and variance were granted were quasi-judicial, and that, therefore, in the absence of allegations of bad faith or corruption, the petitioners, in granting the extensions and variance, are insulated from criminal prosecution for the consequences of their actions.
Respondent argues that, even if this Court adopts the principle of quasi-judicial immunity, that principle should not be applied in the instant case because the extensions and variance were granted ex parte, without adversary hearing or formal adjudicatory proceedings. We disagree.
In deciding that the role of officials of an administrative agency such as the Department of Agriculture are functionally equivalent to thе role of the judiciary, Butz looked to the presence and exercise of discretionary decision-making authority (i. e., applying the law, rules and regulations to the factual matrix of a given case) as well as the existence of procedural safeguards in the administrative proceeding similar to the safeguards afforded at a judicial proceeding (e. g., notice, hearing, right to cross-examine witnesses, etc.). While the existence of these procedural safeguards is a valuable indicator that an agency‘s role is comparable to that of the judiciary, it is not a sine qua non. The primary emphasis seemed to be placed on a decision-maker‘s ability to freely exercise his discretion without harassment or intimidation by disappointed parties. See Id. 438 U.S. 508-12, 98 S.Ct. 2911, 2914, 57 L.Ed.2d 917-19; accord, Merchants Warehouse Co. v. Gelder, 349 Pa. 1, 36 A.2d 444 (1944).
This emphasis is also seen in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). In Stump, a judge of the Circuit Court of Dekalb County, Illinois was presented
The Supreme Court of the United States held Judge Stump immune from suit. “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.‘” Id. at 356-57, 98 S.Ct. at 1105, 55 L.Ed.2d at 339, citing Bradley v. Fisher, supra 13 Wall. at 351, 80 U.S. at 351.
Further, this immunity is not lost even when the judicial exercise of authority is flawed by “grave procedural errors.” The plaintiffs in Stump argued that Judge Stump‘s approval of the petition was not a judicial act because the petition was not docketed or placed on file with the clerk of courts, and that approval was made in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem. The Court rejected the argument that the absence of procedural safeguards rendered the act a non-judicial one, stating “the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, i. e., whether it is a function normally performed by a judge, and to the expectations of the parties, i. e., whether they dealt with the judge in his judicial сapacity.” Id. at 362, 98 S.Ct. at 1107, 55 L.Ed.2d at 342. “Because Judge Stump performed the type of act normally performed only by judges [i. e., granting of a petition] and because he did so in his capacity as a Circuit
Similarly in the instant proceeding, petitioners, in granting the extensions and the variance, were acting in their quasi-judicial capacity. They exercised discretion which they are authorized to do. That formal adjudicatory procedures were not followed is not determinative in our consideration of the immunity afforded their actions.
This opinion in no way condones reckless and negligent conduct of public officials in the performance of their responsibilities and duties. Criminal prosecution for that type of performance cannot, however, be the remedy.6 Judges made timid because of fear of criminal prosecutions for errors in their decisions make poor public servants. History has borne out the fact that the only way judicial functions can be independently performed in the manner required in a democracy is to clothe “judicial performers” with this immunity.
The petition for extraordinary jurisdiction is granted, the сriminal proceedings dismissed, and defendants-petitioners are discharged.
ROBERTS, J., filed a concurring opinion.
NIX, J., filed a dissenting opinion.
ROBERTS, Justice, concurring.
Shocking, indeed, are the allegations of incompetency and negligence of the Industrial Board of the Department of Labor and Industry, and the Board‘s Building Advisory Committee. Astonishing are the repeated instances of flagrant abuse of discretion alleged in this record.
More than twenty-five years ago, Justice Jackson wrote that the “rise of administrative bodies probably has been the most significant legal trend of the last century . . . .” F.T.C. v. Rubberoid, 343 U.S. 470, 487, 72 S.Ct. 800, 810, 96 L.Ed. 1081, 1094 (1952) (dissenting opinion). This trend has continued and accelerated. State and federal administrative agencies adjudicate, in constantly increasing numbers, controversies formerly decided by the judicial branch of government.
The exercise of discretion is a prime function of administrative agencies’ adjudicative role. As Professor Davis has recently written:
“Discretionary power is indispensable whenever individualizing is needed. Rules without discretion cannot satisfy the need for tailoring results to unique facts and circumstances of particular cases.” 2
Agencies’ fair and expert tailoring of legislative mandates to individual circumstances, and their potential for expeditious disposition, is responsible for the growth and ever increasing importance of administrative tribunals in the resolution of disputes.
Of course, fundamental as discretion is to proper administrative adjudication, so too is judicial review of agency
It must be apparent that correction of administrative abuse by use of criminal prosecution would so chill agencies’ exercise of discretion, that agencies would be deterred from the vigorous and effective performance of independent and just decisionmaking. As Dean Freedman has observed:
“[T]he quality of administrative justice-the fairness of an agency‘s procedures, its interest in the protection of individual rights, its commitment to just results-is an essential source of administrative legitimacy.” 3
Permitting criminal prosecution in these circumstances would frustrate the Legislature‘s objectives in establishing administrative agencies. Failure to pursue established administrative and judicial review procedures for challenging claimed adjudicative deficiencies provides no basis for resort to criminal sanctions. The criminal law is not a permissible substitute for established administrative and judicial review procedures.
In light of all of these considerations, this Court properly exercises extraordinary jurisdiction and discharges the petitioners.
NIX, Justice, dissenting.
I must register my dissent to the majority‘s decision in this matter, first because it is procedurally unsound, and second, because it establishes precedent in a difficult area
The inappropriateness of a Writ of Prohibition in the instant case is obvious. A Writ of Prohibition is not a proceeding between private litigаnts, but rather, it is a vehicle by which a superior tribunal may restrain an inferior tribunal, over which it has superintendence, from exceeding its desegregated jurisdiction. Carpentertown Coal and Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426 (1948). See also In re Reyes, 476 Pa. 59, 381 A.2d 865 (1977); Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975); McNair‘s Petition, 324 Pa. 48, 187 A. 498 (1936).1 Moreover, it has long been recognized that the “writ of prohibition is one which, like all other prerogative writs, is to be used only with great caution and forebearance and as an extraordinary remedy in cases of extreme necessity, to secure order and regularity in judicial proceedings if none of the ordinary remedies provided by law is applicable or adequate to afford relief.” Carpentertown Coal and Coke Co. v. Laird, 360 Pa. at 102, 61 A.2d at 430.
The power and the duty of the coroner to investigate any death suspected of being caused by a criminal agency, and to inquire into who might be culpable for the death, has existed in our law from 4 Edward 1 Stat. 2. A.D. 1276. Commonwealth v. Guy, 41 D. & C.2d 151 (1966).2 It is clear that the coroner is this case was acting pursuant to the responsibility entrusted to that office. Thus there was no showing of an absence of jurisdiction that would provide a basis for the issuance of the requested writ, even if it is determined that
In the alternative, the petitioners have requested this Court to invoke its extraordinary jurisdiсtion because of the asserted importance of the question raised.
The presence of an issue of immediate public importance is not alone sufficient to justify extraordinary relief. As in requests for writs of prohibition and mandamus, we will not invoke extraordinary jurisdiction unless the record clearly demonstrates a petitioner‘s rights. Even a clear showing that a petitioner is aggrieved does not assure that this Court will exercise its discretion to grant the requested relief. (Citation omitted.) Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 494 n. 11, 387 A.2d 425, 430 n. 11 (1978).
Finally, I cannot agree that the petitioners’ right to immunity is as clear as the opinion of the majority suggests. Philadelphia Newspapers, Inc. v. Jerome, supra. I find it difficult to understand the majority‘s hasty acсeptance of an unprecedented status immunity for criminal conduct of quasi-judicial bodies, particularly in light of this Court‘s most
Where, but for the defendant‘s status, a right of action would lie under analogous rules of law and no public policy would be promoted in shielding a defendant from liability, and the plaintiff has not failed to pursue existing remedies, denial of the possibility of recovery is unjustified. (Citations omitted.) Dubree v. Commonwealth, 481 Pa. at 546, 393 A.2d at 296.
If this argument is valid as to civil liability, it must of necessity have even greater impact where criminal responsibility is in question. The only public policy argument offered by the majority in support of immunity is the need for these officers to have an unfettered discrеtion in the performance of their duties. Yet, the teaching of Dubree is that immunity should not flow automatically from the status, but rather, as a consequence of a case by case analysis. No such analysis was employed by the majority in reaching their conclusion that petitioners were entitled to immunity.
The majority seeks support for its finding of immunity from criminal prosecution from the United States Supreme Court‘s decision in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). This reliance completely ignores that Butz was concerned with civil and not criminal liability. Further, it ignores the U. S. Supreme Court‘s express rejection of immunity from criminal conduct. O‘Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); U. S. v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882); Ex parte Virginia, 100 U.S. 399, 25 L.Ed. 676 (1879).
Whatever may be the case with respect to civil liability generally, see Pierson v. Ray, 386 U.S. 547, [87 S.Ct. 1213, 18 L.Ed.2d 288] (1967), or civil liability for willful corruption, see Alzua v. Johnson, 231 U.S. 106, 110-111, [34 S.Ct. 27, 28, 58 L.Ed. 142] (1913); Bradley v. Fisher, 13 Wall. 335, 347, 350, 354, [20 L.Ed. 646] (1872), we have never
While I do not intend to explore the question at length, the preceding discussion is sufficient to illustrate the majority‘s superficial treatment of a difficult issue which should not have been considered in this procedural posture. Unquestionably, the right of the petitioners was not so obvious as to justify the invocation of our king‘s bench powers to intercede in the proceedings at this point.
In conclusion, I perceive the threshold question as being whether there are any pressing reasons for prematurely interrupting the trial level proceedings and subjecting this issue to appellate consideration at this juncture. At the trial level, the instant objections and any others that may arise can be fully litigated, and possibly resolved in favor of these petitioners.5 I wish to emphasize that I do not intend