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LAWRENCE WILLIAM ROSENWALD v. ALEXANDER BARBIERI (02/14/83)

decided: February 14, 1983.

LAWRENCE WILLIAM ROSENWALD, INDIVIDUALLY AND ON BEHALF OF ALL CONSTABLES IN MONTGOMERY COUNTY AND THE COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
ALEXANDER BARBIERI, COURT ADMINISTRATOR OF PENNSYLVANIA ET AL., RESPONDENTS. PENNSYLVANIA STATE CONSTABLE ASSOCIATION, INC., INTERVENING PARTY RESPONDENT



Original Jurisdiction in case of Lawrence William Rosenwald, individually and on behalf of all constables in Montgomery County and the Commonwealth of Pennsylvania v. Alexander Barbieri, Court Administrator of Pennsylvania and Harvey Bartle, Esquire, Attorney General of the Commonwealth of Pennsylvania, and Robert Hannum and the Commissioners of the Township of Cheltenham and all other similarly situated townships, boroughs and municipalities in the County of Montgomery and Commonwealth of Pennsylvania and Honorable Richard Lowe, President Judge of the Court of Common Pleas of Montgomery County, and all other President Judges and other judges similarly situated in the County of Montgomery and the Commonwealth of Pennsylvania, and District Justice James L. O'Brien, individually and all other District Justices similarly situated in the County of Montgomery and Commonwealth of Pennsylvania. Pennsylvania State Constables Association, Inc., Intervening Party.

COUNSEL

Robert Morris Cohen, for petitioner.

Howland W. Abramson, with him Charles W. Johns, for respondents, Richard Lowe, James L. O'Brien and Alexander F. Barbieri.

Marc G. Brecher, Deputy Attorney General, with him John O. J. Shellenberger, Deputy Attorney General, Eastern Regional Director, and LeRoy S. Zimmerman, Attorney General, for respondent, Harvey Bartle, III.

John P. Gregg, with him Gilbert P. High, Jr., High, Swartz, Roberts & Seidel, for respondents, Robert Hannum and Commissioners of Cheltenham Township.

Kevin P. O'Neill, with him Donald S. Guthrie and Roger Dale Morris, Jones, Guthrie, Strohm, Morris & Broadt, for intervening party respondent, Pennsylvania State Constables Association.

President Judge Crumlish, Jr., and Judges Rogers, Blatt, Craig and Doyle. Opinion by Judge Blatt.

Author: Blatt

[ 72 Pa. Commw. Page 51]

Before us are the respondents' preliminary objections to an amended complaint filed by petitioner Lawrence William Rosenwald individually and on behalf of all constables in Montgomery County and the Commonwealth of Pennsylvania.

A trespass action was filed in the Court of Common Pleas of Montgomery County, Pennsylvania, in which Gene Reuben sued the petitioner and James L. O'Brien for libel and negligent infliction of emotional distress. The petitioner was a constable initially appointed by the court of common pleas and later elected by the voters of Cheltenham Township and Mr. O'Brien was a District Justice presiding in Cheltenham Township. It was alleged that the petitioner posted a notice of Constable's Sale on Reuben's mailbox for execution of a judgment when, in fact, that judgment had been paid in full a week earlier. After being served with the complaint in the Reuben action, the petitioner contacted the Pennsylvania Department of Justice (now the Office of Attorney

[ 72 Pa. Commw. Page 52]

General),*fn1 the Court Administrator of Pennsylvania,*fn2 the President Judge of Montgomery County,*fn3 District Justice O'Brien, and the President*fn4 of and the Board of Commissioners of Cheltenham Township, requesting that they furnish him with legal representation and be obligated to pay all judgments, if any,*fn5 entered against him. Each of these governmental or judicial bodies denied his request, and he has named them as respondents in the instant action in which he seeks a declaration as to their duty to provide him with legal representation and to pay any judgment entered against him. Before us now are the preliminary objections interposed by the respondents. We have permitted the Pennsylvania State Constable Association (Association) leave to intervene.

Preliminary objections in the nature of a demurrer admit all well-pleaded facts in the pleading attacked as well as all reasonable inferences deducible therefrom and cannot be sustained unless it is clear on the face of the pleading that the law will not permit the recovery sought, resolving all doubts in favor of overruling the demurrer. Association of Pennsylvania State Colleges and University Faculties v. Commonwealth, 44 Pa. Commonwealth Ct. 193, 403 A.2d 1031 (1979).

[ 72 Pa. Commw. Page 53]

The Attorney General, in his objection that the petitioner's amended complaint fails to state a cause of action against him, maintains that neither the then Department of Justice nor the present Office of the Attorney General had or has an existing statutory duty to provide legal representation to constables in trespass actions filed against them which allege libel and negligent infliction of emotional distress. He also argues that constables are merely local officials and that the ...


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