No. 451 January Term, 1977, Appeal From the Order dated June 30, 1976, of the Superior Court of Pennsylvania, No. 1199, October Term, 1976 Affirming the Order of February 17, 1976, of the Lancaster County Court of Common Pleas, No 131 June Term, 1975
William W. Boyd, Xakellis, Perezous & Mongiovi, Lancaster, for appellant.
Henry S. Kenderdine, Jr., Alspoch & Ryder, Lancaster, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix,*fn* Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion in which Larsen, J., joined. Manderino, J., filed a concurring opinion. O'Brien, J., filed a dissenting opinion in which Eagen, C. J., joined. Pomeroy, former J., did not participate in the decision of this case.
Appellant Paul A. Reese instituted an action in trespass alleging negligent representation afforded to him by appellees, Theodore S. Danforth, a county public defender and two members of his staff, including a law student certified under Pa.B.A.R.11. The alleged negligent representations occurred during a proceeding brought against Mr. Reese by the Administrator for Lancaster County pursuant to the Mental Health and Mental Retardation Act of 1966.*fn1 The proceeding initially started as a hearing under § 406(a) of the Act and ultimately concluded in a commitment to a psychiatric hospital pursuant to § 405. As a result of that action, Reese was confined involuntarily for a period of seven (7) days and is now seeking compensatory and punitive damages alleging that he was improperly confined as a result of the negligent representations provided him by the appellees.
The appellees moved for judgment on the pleadings on the grounds that they were immune from suit as a matter of law in that they were public officers by virtue of the Public Defender's Act of December 2, 1968*fn2 acting within the scope of a statutorily mandated duty to supply legal counsel to
indigents. The motion was granted by the Lancaster County Court of Common Pleas based on its determination that the Public Defender's Act conferred official status on public defenders, and, thus, immunized them from liability for negligent conduct when acting within the scope of their duties.*fn3 This decision was affirmed per curiam by the Superior Court without an opinion,*fn4 and we granted allocatur.
We begin by observing that the question of immunity here presented turns on the law of this Commonwealth concerning official immunity. Precedents drawn either from the Federal common law of immunity, which treat these questions as part of the doctrine of judicial immunity, see Ferri v. Ackerman, 483 Pa. 90, 394 A.2d 553 (1978), or from the Federal common law of what constitutes state action under 42 U.S.C. § 1983,*fn5 are not controlling in the instant case.
Prior to this Court's decision in DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978), modifying the doctrine of officials' immunity, the law was clear that public officials were entitled to some immunity from suits arising out of their negligent conduct. "High public officials" were entitled to absolute immunity from civil suits, see Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952), while "lower public officials" were only granted a conditional or qualified immunity that disappeared in the face of allegations of wanton, reckless, intentional, and malicious conduct outside the scope of the official's authority, see Ammlung v. Platt, 224 Pa. Super. 47, 302 A.2d 491 (1973). Although there was some confusion as to whether an individual was a high or low public official,*fn6 it was clear that a mere public employee
having no policy-making functions was not entitled to any immunity, whether it was absolute or conditional, see Meads v. Rutter, 122 Pa. Super. 64, 184 A. 560 (1936). It is therefore appropriate to begin our inquiry in this appeal by first determining whether a public defender and his assistants are public officials entitled to some sort of immunity or whether they are mere public employees to whom no immunity flows.*fn7
In order to be public officers, appellees would have to occupy public offices. In Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 358, 22 A.2d 686, 688 (1941), we defined what comprises a public office:
"To constitute a public office, it is essential that certain independent public duties, a part of the sovereignty of the State, should be appointed to it by law, to be exercised by the incumbent in virtue of his election or appointment to the office thus created and defined . . .;" Kosek v. Wilkes-Barre Twp. School Dist., 110 Pa. Super. 295, 301, 168 A. 518.
In Finley v. McNair, 317 Pa. 278, 281, 176 A. 10, 11 (1935), we said that the question of whether an individual is a public officer
fixed period, acts under oath, gives a bond, and the source or character of the compensation received.
The present problem is similar to that facing the Court in Commonwealth ex rel. Foreman v. Hampson, 393 Pa. 467, 143 A.2d 369 (1958), where we held that a county solicitor is an appointed professional employee and not a public officer within the contemplation of the residence requirement of article XIV section 3 of our state constitution. There the Court quoted and applied that portion of the Richie opinion set forth above, and stated:
A county solicitor is not appointed for any fixed term or certain tenure but occupies his position at the will of the commissioners who appoint him. No functions of government are delegated to him. Nor can he lawfully exercise any powers of sovereignty. He serves as counsel to the commissioners in the discharge of their public duty just as any privately employed attorney serves his clients.
See also, Wiest v. Northumberland County, 115 Pa. Super. 577, 580, 176 A. 74 (1935) (holding that a county solicitor is not a public officer within the meaning of article III section 13 of the constitution). Although individuals may occupy positions which are publicly-funded and authorized by statute, as do public defenders and county solicitors, this does not compel the conclusion that they are public officers. Instead, it is the nature of the office, the powers wielded, and the responsibilities carried out that are the key considerations. Thus, although a county solicitor was not a public officer within the meaning of the constitutional provision involved in Foreman, we had earlier held that district attorneys were public officers within the meaning of that section. Lennox v. Clark, 372 Pa. 355, 373, 93 A.2d 834 (1953). Obviously, a district attorney does exercise powers of sovereignty in the course of executing governmental functions, whereas a county solicitor does not.
In comparing the office of public defender to that of county solicitor, it is apparent that the public defender's function is even more akin to the role of the privately employed attorney than is the solicitor's. This is because the
defender's duty is to represent his clients even as against the interests of the county when it seeks to prosecute an indigent for violation of a county ordinance or, as here, when it seeks to commit an indigent for psychiatric observation. See also, A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 1.1(b) (App.Draft, 1971). The overriding duty of zealous representation of a client's interest attaches to the role of the public defender and had led the Superior Court to liken the performance of this duty by the defender to the performance of privately retained counsel. Barto v. Felix, 250 Pa. Super. 262, 378 A.2d 927, 931 (1977).
The relationship between the county and the public defender is similar to that between an independent contractor and the party contracting for his services. The county has no control over the manner of representation given indigents by the defender. The nature of the work involves the attorney-client relationship and is of a type that precludes outside interference or direction by the county. The attorney requires special skills and the practice of law is a distinct occupation or business from that in which the county primarily engages. Compare Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 370-71, 243 A.2d 389 (1968); 1 Restatement (Second) of Agency (1958) § 220. In fact a comment to section 223 of the Restatement speaks of attorneys as independent contractors. See 1 Restatement (Second) of Agency § 223 comment a.
Another jurisdiction considering the question of whether a public defender is a public officer under state law has cogently observed:
Even though the state must insure that indigents are represented by competent counsel, it can hardly be argued that the actual conduct of the defense of an individual is a sovereign or governmental act. The principle that the state cannot function both as prosecutor and defender is so deeply rooted in our system of justice as to require no citation. The public defender when he represents his client is not performing a sovereign function and is therefore
not a public or state official to whom the doctrine of ...