Section 8546(3) of the PTCA provides, in essence, that employees of local agencies may assert as a defense the fact that the employee acted within the policy making discretion granted to that employee. Furthermore, "all acts of members of the governing body of a local agency or of the chief executive officer thereof are deemed to be within the policy making discretion granted to such person by law." Id. Section 8550 of the PTCA, however, provides that this official immunity is waived when the employee causes damage by "a crime, actual fraud, actual malice or willful misconduct." Paul v. John Wanamakers, Inc., 593 F. Supp. 219 (E.D. Pa. 1984).
Based on the allegations of the complaint, individual Defendants Kile, Gensemer, White, Faux, Boop, Kiniry, Patterson, Johnson and Beishline are not entitled to immunity pursuant to the PTCA. Section 8550 abrogates immunities held by agency officials for willful misconduct. Plaintiff sufficiently alleges willful, deliberate acts on the part of the individual defendants to eliminate any absolute immunity that they may claim by virtue of the PTCA.
The CCBC, the CCIDA and Columbia County, however, are immune from liability pursuant to the PTCA for the pendent state law claims. The PTCA establishes the general rule that "no local agency shall be liable for any damages . . . caused by any Act of . . . an employee therefrom." Pa. Cons. Stat. Ann. tit. 42, § 8541. Section 8542 provides eight (8) specific exceptions to this general rule. In order to impose liability on a local agency, plaintiff must, inter alia, establish that "the injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties. . . . Pa. Cons. Stat. Ann. tit. 42, § 8542(a)(2). "Negligent acts shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct." Id. In order to impose liability on the local agency, the complained of conduct also must arise out of one (1) of eight (8) narrowly defined areas.
As defendants point out, the acts complained of in the Complaint do not arise out of any of the eight (8) areas required to abrogate municipal immunity under the PTCA.
Furthermore, the complained of conduct does not sound in negligence. See Buskirk v. Seiple, 560 F. Supp. 247 (E.D. Pa. 1983).
Section 8550 abrogates only those immunities held by municipal employees and that section does not eliminate municipal immunity when willful misconduct is present. Id. at 252. Therefore, liability will not be imposed on a municipality under the PTCA despite the willful, tortious misconduct of the municipality's employees. Accordingly, plaintiff's state law claims against the CCBC, the CCIDA and Columbia County will be dismissed.
Plaintiff's complaint sufficiently demonstrates, pursuant to Monell v. Department of Social Service, supra, that the termination of his employment as Solicitor was the execution of County policy made by those whose acts may fairly be said to represent official policy. The individual members of the CCBC and the CCIDA are not absolutely immune from liability under the doctrine of legislative immunity. The decision to terminate plaintiff's employment status does not constitute legislative action so as to invoke that doctrine. Finally, the allegations in plaintiff's complaint demonstrate that plaintiff may have had a property right in his continued employment.
Plaintiff's claims pursuant to § 1985(2) will be dismissed because as an attorney, plaintiff does not fall within the class of persons protected by that section. Plaintiff's claims that his First Amendment rights were violated will not be dismissed. Plaintiff's representation of Phillips in a prior civil action may give rise to matters of public concern. Furthermore, the public interest in bringing to light improprieties in county government may outweigh any disruption in the employment relationship that plaintiff's representation may have caused.
The individual defendants are not immune from liability for plaintiff's pendent state law claims based on the PTCA. Plaintiff sufficiently alleges willful misconduct on the part of the individual defendants to abrogate any immunity that may be claimed under the PTCA. The CCBC, the CCIDA and Columbia County, however, are immune from suit pursuant to the PTCA. Plaintiff's claims do not allege negligence on the part of the county, its agencies or any of its employees. Furthermore, none of the acts complained of fit into one of the eight (8) narrowly defined areas as required by the PTCA. Accordingly, plaintiff's pendent state law claims against the CCBC, the CCIDA and Columbia County will be dismissed.
An appropriate Order will enter.
In accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
(1) Defendants' Motion to Dismiss the § 1983 claims is denied.
(2) Defendants' Motion to Dismiss the § 1985(2) claims is granted.