No. 1528 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Division, at No. 80-19089, entered April 20, 1982.
Edward C. Harkin, Collingdale, for appellants.
Kyle Burch, Chester, for appellees.
Rowley, Hester and Roberts, JJ.
[ 327 Pa. Super. Page 292]
This is an action to recover compensatory and punitive damages for malicious prosecution, brought by appellants Steven Overstreet and Dennis Crowson against appellees Borough of Yeadon, the president of borough council, its members, the mayor of the Borough, and its secretary and acting manager. Appellants' complaint alleged that appellees
[ 327 Pa. Super. Page 293]
unjustly and maliciously sought to prosecute appellants on criminal charges of theft by deception and conspiracy in connection with repairs performed by appellants on a borough police vehicle. The criminal charges were dismissed after a preliminary hearing on the ground that a prima facie case had not been established, and a petition for rearrest was rejected by the Deputy Administrator for District Justices, the District Attorney of Delaware County, and the President Judge of Delaware County.
The court of common pleas sustained preliminary objections filed by appellee borough, which averred that the borough was immune from suit under the Political Subdivision Tort Claims Act, Act of November 26, 1978, P.L. 1399, § 101 et seq., formerly 53 P.S. § 5311.101 et seq. (now 42 Pa.C.S. § 8541 et seq.), as well as preliminary objections filed by the individual appellees, who also averred immunity from suit under the Act. In so ruling, the court found it
"particularly noteworthy that Section 202(a)(2) of The Act [now 42 Pa.C.S. § 8542(a)(2)] excluded governmental liability for intentional torts. This section provides in effect that the political subdivision is not liable for conduct that constitutes a crime, actual fraud, actual malice, or willful misconduct. Plaintiffs' cause of action for malicious prosecution would therefore appear to be precluded."
The present appeal followed.*fn*
Although we agree that the Act requires the dismissal of appellants' action against appellee borough, we disagree that the individual appellees are entitled to the same relief. Overlooked by the court of common pleas was ...