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

OP INION 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 interc ourse, indecent assault, and corruption of minors,2

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 review s . Lusick

asserted claims of malici ous 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 di sclose 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 D efendants are

barred by the doctrine of high public official immunity, and al so because Lusick

failed to state a claim for which relief could be granted in his malicious

prosecution claim , as the underlying conviction ha d not been vacated. On May 4,

2015, the trial court sustained Defendants ’ preliminary objections and dismissed3

L usick’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

Defe ndants’ preliminary objection that found Lusick’s case barred by the d octrine

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 e xempts 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 au thority, 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 som e 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 Partne rship 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.4 Abso lute 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

num erous 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 Lusi c k’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.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

O R D E R

AND NOW, this 14 th day of July, 201 7

, the order of the Philadelphia

County Court of Common Pleas in the above

- captioned matter is affirmed.