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 :

OPINION 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 intercourse, indecent assault, and corruption of minors, 

and was sentenced to 12-35 years in prison. Lusick is currently serving this term at 

the State Correctional Institution at Albion. 
2

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 reviews. Lusick 

asserted claims of malicious 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 disclose 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 Defendants are

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

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

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

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

Lusick’s case with prejudice. Lusick appealed to the Superior Court, which 

transferred the matter to this Court.1

 

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 Partnership Consortium, Inc., 694 A.2d 

1134, 1138 n.8 (Pa. Cmwlth. 1997). This Court must determine whether any recovery is possible 

(Footnote continued on next page...)
3

Initially, we address whether the trial court erred in sustaining 

Defendants’ preliminary objection that found Lusick’s case barred by the doctrine 

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 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....

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 some 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....’ 

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....’ 

 

(continued...)

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

Here, Lusick alleges misconduct by the former Philadelphia DA and 

numerous 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 Lusick’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 14th day of July, 2017, the order of the Philadelphia 

County Court of Common Pleas in the above-captioned matter is affirmed.