decided: August 12, 1985.
GENE REUBEN, APPELLANT
JAMES L. O'BRIEN AND LAWRENCE ROSENWALD, A/K/A LAWRENCE WILLIAM ROSENWALD AND AETNA CASUALTY AND SURETY COMPANY, APPELLEES
Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Gene Reuben v. Lawrence Rosenwald a/k/a Lawrence William Rosenwald, et al., No. 80-4555.
Louis Lipschitz, for appellant.
Robert Morris Cohen, for appellees.
President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by President Judge Crumlish, Jr. Judge Williams, Jr., did not participate in the decision in this case.
[ 91 Pa. Commw. Page 80]
Gene Reuben appeals a Montgomery County Common Pleas Court order granting Lawrence Rosenwald's
[ 91 Pa. Commw. Page 81]
motion for judgment on the pleadings. We affirm.
In her complaint,*fn1 Reuben alleges that on December 6, 1978, District Justice James L. O'Brien entered a judgment against her for money owed for dry cleaning services. On March 29, 1979, O'Brien issued an execution order. On the following day, Rosenwald, the duly-elected constable of Cheltenham Township, left copies of the Order of Execution and the Schedule of Properties Levied Upon at Reuben's residence. On April 3, 1984, Reuben paid the outstanding debt of $199.50 to the District Justice, bypassing the executing officer. On April 7, 1979, Rosenwald posted a Constable's Sale Bill on Reuben's mailbox which was located in her apartment building lobby. Reuben alleges that she was libeled by Rosenwald's action.*fn2
After filing his Answer and New Matter, Rosenwald filed a motion for judgment on the pleadings.*fn3 The trial court granted Rosenwald's motion, holding
[ 91 Pa. Commw. Page 82]
that he was entitled as a matter of law to the defense of judicial immunity because he acted at the direction of District Justice O'Brien and in the performance of his official duties as a constable.
On appeal, Reuben contends that the doctrine of judicial immunity should not be extended to shield a constable from civil liability for willful and malicious actions which have defamed the plaintiff.
When ruling on a motion for judgment on the pleadings, the trial court must consider as true all well-pleaded averments of the party against whom the motion is directed and consider against him only those facts which he specifically admits. Powell v. Wrightstown Township, 76 Pa. Commonwealth Ct. 521, 464 A.2d 651 (1983). Judgment on the pleadings should be entered only when the case for determination is clear and free from doubt. Sheperd v. General Telephone and Electronics Corp., 411 Pa. 49, 190 A.2d 895 (1963).
Our review of the pleadings contained in the record supports the trial court's statement of the issue presented:
[I]t is clear that the theory of liability with respect to Constable Rosenwald is that he erroneously posted the constable sale bill on the Plaintiff's premises, after payment, at the earlier direction of District Justice O'Brien, because District Justice O'Brien failed to notify him of the Plaintiff's payment of the Judgment four days earlier. While we recognize that it is alleged that Constable Rosenwald thus acted "wilfully and maliciously", it is equally clear
[ 91 Pa. Commw. Page 83]
that he acted, as alleged, at the direction of Justice O'Brien and in the performance of his official duties as a Constable.*fn4
In Praisner v. Stocker, 313 Pa. Superior Ct. 332, 459 A.2d 1255 (1983), the doctrine of judicial immunity was extended to cover the acts of a district justice performed in a judicial capacity, except where there was a clear absence of jurisdiction over the subject matter and person.
Rosenwald argues that this doctrine should be extended to him because his actions were taken at the direction of District Justice O'Brien, whose contention of judicial immunity had been sustained. We agree.
A "derivative immunity" born from the doctrine of judicial immunity has become well settled in the law;*fn5 "any public official acting pursuant to court directive is also immune from suit." Lockhart v. Hoenstine, 411 F.2d 455, 460 (3d Cir. 1969), cert. denied, 396 U.S. 941 (1969); see also United States ex rel. Smith v. Heil, 308 F. Supp. 1063 (E.D. Pa. 1970).
Rosenwald's actions in this case were consistent with the execution order signed by District Justice O'Brien and the laws of this Commonwealth regulating a constable's conduct.*fn6
[ 91 Pa. Commw. Page 84]
The order of the Montgomery County Common Pleas Court at No. 80-4555 dated June 24, 1983, is affirmed.
Judge Williams, Jr., did not participate in the decision in this case.