Rok v. FLAHERTY

527 A.2d 211, 106 Pa. Commw. 570, 1987 Pa. Commw. LEXIS 2227
CourtCommonwealth Court of Pennsylvania
DecidedJune 12, 1987
DocketAppeal, 170 C.D. 1986
StatusPublished
Cited by30 cases

This text of 527 A.2d 211 (Rok v. FLAHERTY) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rok v. FLAHERTY, 527 A.2d 211, 106 Pa. Commw. 570, 1987 Pa. Commw. LEXIS 2227 (Pa. Ct. App. 1987).

Opinions

Opinion by

President Judge Crumlish, Jr.,

Craig Rok, t/d/b/a Craig Auto Service and Towing (Rok), appeals an Allegheny County Common Pleas Court order sustaining preliminary objections in the nature of a demurrer of Pittsburgh City Controller Thomas E. Flaherty (Flaherty). The common pleas court dismissed Roks defamation complaint, concluding that Flaherty enjoyed absolute immunity.1 We reverse and remand.

The City of Pittsburgh advertised for bids on contracts for the procurement of towing services used by the various City departments. The Director of General Services awarded the contract to Rok. Flaherty refused to countersign. The common pleas court granted the City’s peremptory judgment motion and ordered Flaherty to countersign (Order No. GD85-12952 dated August 13, 1985).

Flaherty ¿gain refused to sign and appealed, citing improper influence by the Mayor in awarding the contract. On September 10, 1985, the common pleas court revoked Flaherty’s automatic supersedeas and again ordered that he sign. In Flaherty v. City of Pittsburgh, 100 Pa. Commonwealth Ct. 508, 515 A.2d 91 (1986), this Court affirmed, holding that the signing of the contract was a purely ministerial act of the Controller’s office which Flaherty had a mandatory duty to perform. Flaherty subsequently complied.

During this political maneuvering, Rok filed a complaint, which is the subject of this appeal, against [573]*573Flaherty for defamation and intentional interference with contractual relations. Flaherty raised the common law defense of absolute immunity.

Our scope of review of a common pleas court order sustaining preliminary objections and dismissing a complaint is limited to a determination of whether the trial court abused its discretion or committed an error of law. Department of Environmental Resources Appeal, 91 Pa. Commonwealth Ct. 381, 497 A.2d 284 (1985).

Absolute privilege, 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 scope of his authority or as it is sometimes expressed, within his jurisdiction. Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952).

As the doctrine evolved, the courts have sought to strike a balance by declaring that the public interest does not demand that all public officials be entitled to absolute privilege but only that “high ranking officers” be so protected. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958), rev'd on other grounds, Commonwealth v. Schab, 477 Pa. 55, 383 A.2d 819 (1978).

Factors which determine whether a particular public officer is protected by absolute privilege include the nature of his duties, the importance of his office and particularly whether or not he has policy-making functions. Id.2

Rok asserts that a review of the powers and duties of the City Controller as set forth in the Home Rule Charter provide no authority for finding Flaherty a “high public official.”

[574]*574Absent statutory classification, the parameters establishing “high public official” status have been delineated by the judiciary on a case-by-case basis. In Balshy v. Rank, 507 Pa. 384, 490 A.2d 415 (1985), our Supreme Court reviewed this Courts original jurisdiction over all tort actions initiated against the Commonwealth or its officers acting in their official capacity. Although not dis-positive in the instant case, Balshy contains a relevant discussion of the difference between an officer and employee of the Commonwealth:

Guided by the principle of statutory construction that words and phrases be construed according to their common and approved usage, . •. . Commonwealth Court distinguished Commonwealth officers from ordinary Commonwealth employees, describing officers as those persons to whom are delegated some of the sovereign functions of government, and employees as persons who merely exercise subordinate ministerial■ functions. More recently, the definition of ‘officer,’ as that term is used in §761, has been refined to include ‘those persons who' perform state-wide policymaking functions and who are charged with the responsibility for independent initiation of administrative policy regarding some sovereign function of state government’.

507 Pa. at 389-90, 490 A.2d at 417 (citations omitted; emphasis added).

Rok argues that the Controller’s duties are merely ministerial and involve, no policy-making functions.

A ministerial act has been defined as “one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or [575]*575impropriety of the act to be performed.” 17 McQuillen Municipal Corporations §51.19 (3rd ed. 1982).

Without question, the auditing, accounting and reviewing functions of the Controllers office are largely ministerial in nature.3 However, this Court is persuaded that the City Controller of Pittsburgh, as an elected official,4 is endowed with and exercises sovereign functions and sufficient discretionary authorities to be considered a high public official. Thus,, he is to be afforded absolute immunity in the course of his employment.

Having determined that the Pittsburgh City Controller is a high public official, our next inquiry is whether the actions complained of occurred within the scope of that authority. See Matson.

In determining whether a cause of action in slander and defamation exists, the question of whether Flaherty had a duty to sign or countersign the contract is immaterial. It has been determined that he did. At issue is whether the actions Flaherty undertook in conjunction with his refusal to sign the document give rise to the instant complaint in defamation.

On various days in July and August, 1985, Flaherty issued press releases, held press conferences and appeared on television, during which time he released written statements relating to his refusal to countersign the Rok contract. These statements contained allegations of fraud, bidding irregularities and improper campaign contributions.5

[576]*576Mindful of the Controllers position in the executive branch of our tripartite system of government, we can find no statutory source nor can we attach any identifiable, authorized official function to support Flaherty’s post refusal communications to the media.

[577]*577In Biggans v. Foglietta, 403 Pa. 510, 512,

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Bluebook (online)
527 A.2d 211, 106 Pa. Commw. 570, 1987 Pa. Commw. LEXIS 2227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rok-v-flaherty-pacommwct-1987.