LUSICK v. ABRAHAM

No. 1952 C.D. 2015.

David George Lusick, Appellant, v. 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.

Commonwealth Court of Pennsylvania.

Filed: July 14, 2017.


Attorney(s) appearing for the Case

David George Lusick, for Appellant, Pro Se.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Lynne Herbert O'Connor.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Andrew Klein.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Elizabeth Varki Jobes.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Arnold Gordon.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Robert M. Falin.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Ronald Eisenberg.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Thomas Dolgenos.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Hugh J. Burns.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Karen Brancheau.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, John Hunter Bennett.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Brad Bender.

Bryan Christopher Hughes , Philadelphia District Attorney's Office, for Appellee, Lynne Abraham.


OPINION NOT REPORTED

PER CURIAM.

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.

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

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. . . .'

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.

ORDER

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.

FootNotes


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 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.
2. Because all Defendants are immune from suit, we need not address Lusick's remaining issues.

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