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LEON NEWMAN AND DONNA NEWMAN v. JOSEPH THORN (12/12/86)

filed: December 12, 1986.

LEON NEWMAN AND DONNA NEWMAN, APPELLEES,
v.
JOSEPH THORN, INDIVIDUALLY AND AS MAYOR OF MORTON BOROUGH, JUDITH BECHETEL, JAMES MCCAFFREY, JOSEPH SAVUKINAS, GEORGE DICKERSON, PAUL LYTLE, INDIVIDUALLY AND AS COUNCILMAN OF MORTON BOROUGH, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Delaware County, Civil, at No. 84- 374.

COUNSEL

Maria Zulick, Philadelphia, for appellants.

Jon Auritt, Media, for appellees.

Cirillo, President Judge, and Montemuro and Kelly, JJ.

Author: Montemuro

[ 359 Pa. Super. Page 276]

This appeal challenges an order of the Delaware County Court of Common Pleas vacating a grant of summary judgment. Appellants raise issues that the General Assembly has committed to the exclusive jurisdiction of the Commonwealth Court. We therefore transfer this case to that court.

On February 16, 1983, appellant, Joseph Thorn, Mayor of the Borough of Morton, suspended appellee, Leon Newman, from his position as a police officer for the Borough. Appellants, James McCaffrey, Joseph Savukinas, George Dickerson and Paul Lytle, all members of the Borough Council, voted on March 9, 1983 to discharge Mr. Newman. On appeal pursuant to 53 P.S. § 46191, the Borough Civil Service Commission, after extensive hearings, decided to uphold Mr. Newman's discharge. The Delaware County Court of Common Pleas quashed as untimely Mr. Newman's appeal from the Commission's decision.

Nonetheless, while the matter was before the Borough Civil Service Commission, Mr. Newman and his wife, appellee Donna Newman, brought this separate action in the court of common pleas. In their complaint, the Newmans allege that appellants, by seeking or approving Mr. Newman's discharge, intended only to retaliate against Mr. Newman for his outspoken opposition to the actions of Mayor Thorn and "certain Morton public officials." The Newmans also allege that appellants either engaged in or condoned other "malicious" conduct, including an intrusive investigation of the Newmans' private affairs by Mayor Thorn. For each of these separate incidents of alleged wrongdoing, the Newmans seek relief on both tort and federal civil rights theories.

[ 359 Pa. Super. Page 277]

Appellants responded by filing a motion for summary judgment at the close of the pleadings. In support of their motion, appellants advanced three arguments: (1) the proceedings before the Borough Civil Service Commission pursuant to the Borough Code, 53 P.S. § 46010 et seq. from which the Newmans could seek review in the court of common pleas and then the Commonwealth Court, bars this collateral challenge to Mr. Newman's dismissal; (2) federal case law grants state and local officials qualified immunity from suit brought under 42 U.S.C. § 1983 for deprivation of federal civil rights; (3) the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8545, grants employees of local government units, including elected officials, "official immunity" from "civil damages" actions. On November 22, 1985, the trial court granted appellants' motion for summary judgment, but only "to the extent of the . . . claim relating to the dismissal of Mr. Newman." By order of December 9, 1985, however, the court vacated its November 22, 1985 grant of summary judgment and ordered the parties to complete discovery within 60 days. Appellants filed a timely notice of appeal from that order.

Appellees, the Newmans, challenge the jurisdiction of any appellate court to hear appellants' case. Appellees agree with the trial court that this appeal is interlocutory. They argue that the November 22, 1985 order granting summary judgment "to the extent of the . . . claim relating to the dismissal of Mr. Newman" constituted a grant of partial summary judgment only. This court will quash as interlocutory an appeal from an order granting partial summary judgment if the order does not put the appellant out of court on his or her cause of action. See Dudash v. Palmyra Borough Authority, 335 Pa. Super. 1, 483 A.2d 924 (1984); Canulli v. Allstate Ins. Co., 315 Pa. Super. 460, 462 A.2d 286 (1983). Taking this proposition one logical step further, appellees reason that we should quash as interlocutory an appeal from and order vacating partial summary judgment. We are inclined to agree with appellees' conclusion that a court cannot, by some legal artifice, create an appealable order merely by vacating a non-appealable

[ 359 Pa. Super. Page 278]

    one. Appellees reach this conclusion, however, by incorrectly assuming that the November 22, 1985 order granting ...


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