Suppan v. Kratzer

660 A.2d 226, 1995 Pa. Commw. LEXIS 285
CourtCommonwealth Court of Pennsylvania
DecidedJune 13, 1995
StatusPublished
Cited by15 cases

This text of 660 A.2d 226 (Suppan v. Kratzer) 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
Suppan v. Kratzer, 660 A.2d 226, 1995 Pa. Commw. LEXIS 285 (Pa. Ct. App. 1995).

Opinion

KELTON, Senior Judge.

In this action alleging defamation and breach of a right of confidence, Richard J. Suppan (Suppan) appeals from the order of the Court of Common Pleas of Northampton County (trial court) sustaining the preliminary objections of defendants Paul Kratzer [sic] (Kutzler), Mayor of Northampton Borough, Thomas Reenock (Reenock), Northampton Borough Council President and Borough of Northampton (Borough). The trial court sustained the preliminary objections on the basis of the defendants’ immunity from [228]*228suit pursuant to Section 8550 of the Judicial Code, 42 Pa.C.S. § 8550. We affirm.

Facts

In a complaint filed on or about October 14, 1993, Suppan averred that on June 1, 1992, he sat for a written service test for a position as a police officer in Northampton Borough with an understanding that his application was to be confidential. He further averred that on June 12, 1992, after successfully completing the written exam, he took an oral exam and received an aggregate score and final ranking of number one on the civil service eligibility list.

Suppan further avers that Kutzler and Reenock intentionally defamed him to third parties in order to justify not hiring him. In paragraph eleven of Count I of his complaint, Suppan alleges as follows:

11. Between June 27, 1992 and September 30, 1992, the Defendants, Kratzer [sic] and Reenock, falsely claimed that the Plaintiff was a “lunatic”, and knowingly, intentionally and falsely told numerous third parties, including police officers of the Northampton Police Department that Plaintiff ‘flunked a psychological exam.’

(Suppan’s Complaint, R.R. at 15a.)

Suppan further avers that Defendants Kutzler and Reenock were acting outside the scope of their authority and were guilty of willful misconduct.

Additionally, Suppan avers in Count II that the Borough breached a duty of confidentiality owed to him by releasing information to the public concerning his application for employment with the Northampton Borough Police Department:

17. At all relevant times, the Plaintiff was guaranteed a right to confidentiality concerning his employment application process for the job of police officer with the Defendant, Borough of Northampton.
18. At all relevant times, Plaintiff was duly employed as a police officer with the Allentown Police Department, and he relied upon the explicit, and implicit, guarantees that the Defendant, Borough of Northampton, could not divulge the fact that he was applying for a position with the Northampton Police Department in order to keep his professional and career options open with the Allentown Police Department.
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20. On or about August 2, 1993, the Defendant, Borough of Northampton, acting through its agents, servants, and employees within the scope of their authority, announced to Todd Miller, a reporter for the Morning Call, that 1) Richard Suppan was a top finalist for the job of patrolman with the Defendant; 2) that Richard Sup-pan who was a top finalist was already employed as a police officer with the Allentown Police Department; and 3) that Richard Suppan who was the Allentown police officer was formerly a detective with the Allentown police department.
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22. Although the defendant, Borough of Northampton, released this information to the press, and said information was not defamatory, the Defendant, Borough of Northampton, breached its duty of confidentiality to Plaintiff, and released information that Defendant was obligated not to publish to third parties.

(Suppan’s Complaint, R.R. at 16-17a.)1

In response to Suppan’s complaint, Defendants filed preliminary objections alleging that Suppan’s complaint failed to conform with law or rule of court, failed to state a cause of action upon which relief may be granted and failed to specifically allege the information required to prepare a proper defense.2

[229]*229The trial court concluded that the Borough was immune from suit under Sections 8541 and 8542 of the Code. Section 8541 provides as follows:

Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.

42 Pa.C.S. § 8541. Section 8542 enumerates exceptions to this general rule. The trial court noted that actions for defamation and breach of confidentiality are not among those enumerated exceptions.

The trial court further concluded that Defendants Kutzler and Reenock are immune from suit pursuant to Section 8545 of the Code, which provides as follows:

An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchap-ter.

42 Pa.C.S. § 8545. The trial court concluded that Kutzler and Reenock acted within the parameters of their official duties and, therefore, are immune from suit.

Finally, the trial court determined that the Borough owed Suppan no duty of confidentiality regarding his application for employment and that Suppan failed to aver with specificity the substance of the alleged guarantee of confidentiality made to him by a Borough employee.

Discussion

When reviewing a trial court order sustaining preliminary objections in the nature of a demurrer, this Court’s scope of review is limited to determining whether the trial court abused its discretion or committed an error of law. A demurrer should not be sustained unless it is clear that the law will not permit the relief sought. Petula v. Mel-lody, 138 Pa.Commonwealth Ct. 411, 588 A.2d 103 (1991).

A. Count I — Defamation

Suppan argues that he properly stated a cause of action because, in Count I, he averred that the actions of Kutzler and Reen-ock in defaming him constituted willful misconduct. Employees of local agencies are not immune from suit under the Code for actions which constitute willful misconduct. 42 Pa.C.S. § 8542(a)(2).

Suppan does not aver, however, to whom Defendants Kutzler and Reenock made the allegedly defamatory remark that Suppan is a “lunatic.” A necessary element of a defamation action is publication or communication to a third party.3 If Suppan does not allege to whom the allegedly defamatory statement was published, he has not properly alleged defamation. An allegation which merely avers that the alleged defamatory statement was published to a third person is defective. Raneri v. DePolo, 65 Pa.Commonwealth Ct. 183, 441 A.2d 1373 (1982).

Under the five-part Petula standard in footnote 3, Suppan has, however, properly alleged the identity of the third parties to whom the Defendants made the comment that he flunked a psychological exam, i.e.

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Cite This Page — Counsel Stack

Bluebook (online)
660 A.2d 226, 1995 Pa. Commw. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suppan-v-kratzer-pacommwct-1995.