O'Brien, J. v. Beatty, K.

2024 Pa. Super. 307, 329 A.3d 685

• Court: Superior Court of Pennsylvania
• Decided: December 20, 2024
• Docket: 2969 EDA 2023
• Status: Published

Opinion

J-A20033-24

2024 PA Super 307

JOHN J. O'BRIEN III : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KRISTA K. BEATTY : No. 2969 EDA 2023

Appeal from the Order Entered November 1, 2023 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2023-16625

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J.

OPINION PER CURIAM: FILED DECEMBER 20, 2024

The issue in this appeal is whether counsel for the Office of Disciplinary

Counsel (“ODC”) who prosecutes a lawyer through the disciplinary process is

immune from a civil action that the prosecuted lawyer subsequently files

against the disciplinary counsel. We hold that disciplinary counsel is immune

from a civil action when the lawyer’s allegations are based on disciplinary

counsel’s conduct during the disciplinary proceedings.

In this case, Appellant, John J. O’Brien, Esq. filed a civil action against

Appellee, Krista Beatty, Esq. (“Disciplinary Counsel Beatty”) based on

allegations about her conduct during his disciplinary proceedings. The trial

court sustained Disciplinary Counsel Beatty’s preliminary objections and

dismissed the complaint. Appellant appealed. After careful review, we affirm.

We glean the relevant factual and procedural history from the trial court

opinion. In September 2020, the ODC initiated disciplinary proceedings J-A20033-24

against Appellant and assigned Disciplinary Counsel Beatty to prosecute

Appellant. In November 2023, a Hearing Committee found that Appellant had

violated the Rules of Professional Conduct relating to his responsibility to hold

client funds in his IOLTA account. At the hearing, Disciplinary Counsel Beatty

requested a sanction of suspension from the practice of law for a year and a

day, which, following the submission of briefs, the Hearing Committee

ultimately recommended. The Disciplinary Board of the Supreme Court of

Pennsylvania (“Disciplinary Board”) reviewed the recommendation and

increased the sanction to a two-year suspension. On July 27, 2021, the

Supreme Court of Pennsylvania issued a final decision, adopting the

recommendation of the Disciplinary Board.1

On July 19, 2023, Appellant pro se instituted this civil action, seeking

monetary damages against Disciplinary Counsel Beatty. Appellant does not

dispute that his claim is based on allegations about Disciplinary Counsel

Beatty’s conduct during the disciplinary proceedings but claims that

Disciplinary Counsel Beatty “waived her immunity” because she presented

false evidence against him during the disciplinary proceedings and engaged in

ex parte communications with the Hearing Committee to seek an increased

penalty for Appellant. Complaint, 1/10/24, at ¶¶ 27, 37, 38. ____________________________________________

1 Disciplinary proceedings against lawyers in Pennsylvania begin with a hearing before a hearing committee which issues a recommended decision. Pa.R.D.E. 208(b); (c). The Disciplinary Board then may affirm or change the recommendation, following briefing and oral argument, if requested. Id. at (d)(1)-(2). The Supreme Court then conducts a de novo review of the Board’s recommendation and issues a final decision. Id. at (d)(2)(iii), (e).

-2- J-A20033-24

On August 30, 2023, Disciplinary Counsel Beatty filed preliminary

objections asserting prosecutorial, quasi-judicial, sovereign, and high public

official immunities. Appellee’s Preliminary Objections, 8/30/23, at ¶ 11. She

also asserted that Appellant’s action is barred by the two-year statute of

limitations for fraud set forth in 42 Pa.C.S. § 5524(7). Id. Appellant then

filed preliminary objections in response, in which he argued, inter alia, that

Disciplinary Counsel Beatty was not entitled to immunity from his lawsuit.

See Preliminary Objections, 9/12/23, at 4, 6-7.

The trial court concluded that Disciplinary Counsel Beatty was entitled

to high public official immunity. Accordingly, on November 1, 2023, the trial

court overruled Appellant’s preliminary objections to Disciplinary Counsel

Beatty’s preliminary objections, sustained Disciplinary Counsel Beatty’s

preliminary objections, and dismissed the complaint with prejudice.

Appellant filed an appeal, and both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. It is an error of law to apply absolute immunity to a rogue counsel for the Board who engages in fabrication of evidence and lies to two panels.

2. It is an error of law to ignore the violation of due process when [Disciplinary Counsel Beatty] encouraged a panel to increase the penalty with no notice and hearing.

3. It is an error of law not to allow the fact finder to address the admitted misconduct of [Disciplinary Counsel Beatty].

Appellant’s Br. at 2.

-3- J-A20033-24

Appellant first challenges the trial court’s order sustaining Disciplinary

Counsel Beatty’s preliminary objections in the nature of a demurrer filed

pursuant to Pa.R.Civ.P. 1028(a)(4).2 “Preliminary objections in the nature of

a demurrer test the legal sufficiency of the complaint.” Catanzaro v.

Pennell, 238 A.3d 504, 507 (Pa. Super. 2020) (citation omitted). The trial

court must resolve preliminary objections “solely on the basis of the pleadings;

no testimony or other evidence outside of the complaint may be considered[.]”

Hill v. Ofalt, 85 A.3d 540, 547 (Pa. Super. 2014) (citation omitted). The

court must accept as true all material facts set forth in Appellant’s pleadings

and all reasonable inferences. See id. Finally, preliminary objections seeking

dismissal of a cause of action “should be sustained only in cases in which it is

clear and free from doubt that the pleader will be unable to prove facts legally

sufficient to establish the right to relief.” Catanzaro, 238 A.3d at 507

(citation omitted).

____________________________________________

2 Rule 1028(a)(4) provides: “Preliminary objections may be filed by any party

to any pleading and are limited to the following grounds: . . . legal insufficiency of a pleading (demurrer)[.]” Pa.R.Civ.P. 1028(a)(4). A defendant generally raises immunity defenses in an Answer and New Matter, but if she raises an immunity defense in preliminary objections, and the plaintiff does not object, then the court may address the immunity defense. See Pollina v. Dishong, 98 A.3d 613, 617 n.3 (Pa. Super. 2014) (recognizing that, under Pa.R.C.P. 1030(a), immunity should be plead as new matter rather than as preliminary objections but holding that “the failure of the opposing party to object to the defective preliminary objections waives the procedural defect and allows the trial court to rule on the preliminary objections”). Appellant’s failure to object to this procedural defect in his preliminary objections waived this claim and permitted the court to rule on Disciplinary Counsel Beatty’s preliminary objections.

-4- J-A20033-24

“In reviewing the propriety of the court’s grant of preliminary objections

in the nature of a demurrer, [appellate courts] apply the same standard as

the trial court[.]” Id. As the question involves a pure question of law

regarding the legal sufficiency of the complaint, our standard of review is de

novo. See id.

*

Appellant asserts that the trial court erred in sustaining Disciplinary

Counsel Beatty’s preliminary objections because there were factual issues as

to whether Disciplinary Counsel Beatty should be granted high public official

immunity when she lacks policy-making authority and “it was an error of law

to conclude without evidence and a violation of due process to find that

[Disciplinary Counsel Beatty] makes policy.” Appellant’s Br. at 4. We reject

these arguments as meritless.

We first note that Rule 209(b) of Pennsylvania Rules of Disciplinary

Enforcement (“Rule 209(b)”) provides immunity to disciplinary counsel from

civil suits. Specifically, it provides that “[m]embers of the Board, members of

hearing committees, special masters, Disciplinary Counsel and staff shall

be immune from civil suit for any conduct in the course of their official

duties.” Pa.R.D.E. 209(b) (emphasis added). Since Appellant’s claims are

based on Disciplinary Counsel Beatty’s actions when prosecuting Appellant

during the disciplinary proceedings, Rule 209(b) grants Disciplinary Counsel

Beatty immunity from Appellant’s claims and the trial court properly sustained

-5- J-A20033-24

Disciplinary Counsel Beatty’s preliminary objections and dismissed the

complaint with prejudice. 3

We also note that the doctrine of high public official immunity, as set

forth in Durham v. McElynn, 772 A.2d 68, 69-70 (Pa. 2001), grants

Disciplinary Counsel Beatty immunity from Appellant’s claims. In Durham,

our Supreme Court explained that “high public officials are immune from suits

seeking damages for actions taken or statements made in the course of their

official duties.” 772 A.2d at 69. The standard for determining who qualifies

as a high public official “focus[es] on the nature of the duties of the particular

public officer, the importance of his office, and whether or not he has policy-

making functions.” Id.

The Supreme Court also noted that an official’s policy-making function

is not the sole factor in determining whether an individual is entitled to

immunity from civil suits. Id. at 70. Rather, the Supreme Court found that

“it is the public interest in seeing that the official not be impeded in the

performance of important duties that is pivotal.” Id. Accordingly, the

Supreme Court extended high public official immunity to assistant district

attorneys (“ADAs”) who, despite lacking a policy-making function, “are

3 Although the trial court did not rely on Rule 209(b), we “may affirm a trial

court’s ruling on any basis supported by the record on appeal.” Lynn v. Nationwide Ins. Co., 70 A.3d 814, 823 (Pa. Super. 2013).

-6- J-A20033-24

essential to district attorneys in fulfilling responsibilities of their high public

offices, to wit, in carrying out the prosecutorial function.” Id.

The Supreme Court also addressed the scope of conduct of a high public

official that is immune from a civil suit. “In Pennsylvania, high public official

immunity is a long-standing category of common law immunity that acts as

an absolute bar to protect high public officials from lawsuits arising out of

actions taken in the course of their official duties and within the scope of their

authority.” Doe v. Franklin County, 174 A.3d 593, 603 (Pa. 2017).

Furthermore, the Supreme Court has cited with approval the cases that

provided high public officials with absolute immunity, which is “unlimited” and

extends to “all civil suits for damages arising [from] false defamatory

statements” and for “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 [her] authority[.]”

Durham, 772 A.2d at 69 (emphasis in original)(quoting Matson v. Margiotti,

88 A.2d 802, 899–900 (Pa. 1952), overruled on other grounds by

Commonwealth v. Schab, 383 A.2d 819 (Pa. 1978)); see also

Montgomery v. Philadelphia, 140 A.2d 100, 103 (Pa. 1958) (Absolute

immunity “remov[es] any inhibit[i]on which might deprive the public of the

best service of its officers and agencies.”).

In this case, the trial court concluded that Disciplinary Counsel Beatty

was immune from Appellant’s claims even though she does not hold a policy-

making position by analogizing her position to that of an ADA. Trial Ct. Op.

-7- J-A20033-24

at 3. We agree. Like an ADA, who fulfils the responsibilities of the District

Attorney by prosecuting those who violate criminal statutes and protecting the

public from such individuals, Disciplinary Counsel Beatty fulfils the

responsibility of the ODC by prosecuting, and thus protecting the public from

lawyers who violate the Code of Professional Responsibility. Accordingly, we

extend the holding of Durham to grant high public official immunity to

disciplinary counsel in the performance of their prosecutorial duties.

Finally, we address the scope of the conduct of the high public official

that is immune from civil suit. Since we are reviewing the trial court’s order

to sustain Disciplinary Counsel Beatty’s Preliminary Objections, we must

accept Appellant’s allegations about Disciplinary Counsel Beatty’s conduct as

true. In doing so, we find that the scope of the immunity covers Appellant’s

accusations of misconduct because Appellant bases the allegations on conduct

that Disciplinary Counsel allegedly engaged in during her prosecution of

Appellant’s violations of the Code of Professional Responsibility. Durham,

772 A.2d at 69-70.

In particular, Appellant alleges that Disciplinary Counsel Beatty

presented false evidence against him during the disciplinary proceedings and

engaged in ex parte conversations with the Hearing Committee.4 These

4 Although we treat the allegation as true that Disciplinary Counsel Beatty engaged in ex parte communication with the Hearing Committee in which she requested that the Hearing Committee increase his suspension to one year and one day, we note that Appellant supports this allegation in the Complaint (Footnote Continued Next Page)

-8- J-A20033-24

allegations are insufficient to deprive Disciplinary Counsel Beatty of immunity

from Appellant’s civil action because Appellant alleges that Disciplinary

Counsel Beatty engaged in this conduct during the disciplinary proceedings.

In sum, we agree with the trial court’s decision and conclude that both

Rule 209(b) and the high public official immunity doctrine espoused in

Durham grant immunity to Disciplinary Counsel Beatty from the Complaint

because Appellant’s claims concern Disciplinary Counsel Beatty’s alleged

conduct during the disciplinary proceedings against Appellant. Accordingly,

we affirm the order sustaining Disciplinary Counsel Beatty’s preliminary

objections based upon the legal insufficiency of Appellant’s complaint pursuant

to Pa.R.Civ.P. 1028(a)(4).5

Order affirmed.

Date: 12/20/2024 ____________________________________________

by attaching a portion of a transcript from the hearing. See Compl. at Ex. G. The transcript, however, demonstrates that Disciplinary Counsel Beatty requested this sanction at the hearing and does not even allude to an allegation that Disciplinary Counsel Beatty engaged an ex parte interaction with the members of the Hearing Committee. Id.

5 In light of our disposition, we need not address Disciplinary Counsel Beatty’s

claim that the statute of limitations bars this action.

-9-