2006 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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Recommended Citation

"Heller v. Fulare" (2006). 2006 Decisions. Paper 671.

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1

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
2

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
The allegations in the complaint and amended 1

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. 

3

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
4

“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
A number of opinions from the United States 2

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

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). The privilege is not for the benefit of the official, but 2
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

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
In the Penuel case, the chief of police discharged 3

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

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
8

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
9

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.