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C. ALLEN MILLER v. ROGER EMELSON ET AL. (02/03/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 3, 1987.

C. ALLEN MILLER, ET AL.
v.
ROGER EMELSON ET AL., AND RONALD N. WATZMAN, ET AL. THOMAS J. WEBB V. ROGER EMELSON, ET AL., AND RONALD N. WATZMAN, ET AL. C. ALLEN MILLER, ET AL., APPELLANTS

Appeal from the Order of the Court of Common Pleas of Washington County in the case of C. Allen Miller, Kathleen Hodgson, Ervin Cross and Rose Marie Cross, his wife v. Roger Emelson, Joseph DeBlassio, Jr., Kenneth L. Downer, Edgar Delbarre, Oliver Hormell and California Area School District, No. 180 September Term, 1984, and in the case of Thomas J. Webb v. Roger Emelson, Joseph DeBlassio, Jr., Kenneth L. Downer, Edgar Delbarre, Oliver Hormell and California Area School District, No. 181 September Term, 1984.

COUNSEL

Richard J. Schubert, Caroselli, Spagnolli & Beachler, for appellants.

Barbara Burson Rutt, with her, Phillip J. Binotto, Jr., Binotto & Sweat, for appellees.

Judges Barry, Colins (p) and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 103 Pa. Commw. Page 439]

Thomas J. Webb, C. Allen Miller, Kathleen Hodgson, Ervin Cross and Rose Marie Cross (Appellants) appeal from an order of the Court of Common Pleas of Washington County (trial court) which granted the summary judgment motions of the California Area School District (School District) and of Roger Emelson, Joseph DeBlassio, Jr., Kenneth L. Downer, Edgar Delbarre (School Directors). We affirm as to School District but reverse as to School Directors.

A teachers' strike took place in the California Area School District during the 1982-83 school year. School District's solicitor filed criminal charges in January, 1983 against Appellants, teachers in the district, alleging harassment, threats of and actual physical violence, and property damage. The charges were dismissed by a district justice on May 5, 1983.*fn1 Appellants, on September 11, 1984, filed actions for malicious prosecution against School District, School Directors and Oliver Hormell, School District's solicitor.

School District moved for summary judgment under the Political Subdivision Tort Claims Act (Act),*fn2 which motion the trial court granted. School Directors moved for and were granted summary judgment on the grounds that the claims against them were not filed within the six month time limitation of 42 Pa. C.S. § 5522(b)(1).

Appellants, on appeal, contend that School District is not protected by the general immunity of Section

[ 103 Pa. Commw. Page 4408541]

of the Act*fn3 and that the six month commencement of action limitation of 42 Pa. C.S. § 5522(b)(1) is not applicable to School Directors because (1) School Directors had actual notice of the incident on which the malicious prosecution actions are based, and (2) 42 Pa. C.S. § 5524 contains the filing limitation applicable to malicious prosecution actions.*fn4

Our scope of review of the grant of a motion for summary judgment is limited to determining whether there has been an error of law or a manifest abuse of discretion. Peters Township School Authority v. United States Fidelity and Guaranty Co., 78 Pa. Commonwealth Ct. 365, 467 A.2d 904 (1983).

Summary Judgment in Favor of School District

To support their claim that School District is not protected by the general immunity of Section 8541 of the Act, Appellants contend that Section 8550 of the

[ 103 Pa. Commw. Page 441]

Act*fn5 provides an exception to immunity when wilful misconduct is involved. They assert that the phrase "[i]n any action against a local agency or employee thereof," contained in Section 8550, permits an action for malicious prosecution not only against the individual employees of a local agency but also against the local agency itself. This assertion was recently addressed by this Court in Steiner v. City of Pittsburgh, 97 Pa. Commonwealth Ct. 440, 444, 509 A.2d 1368, 1370 (1986) where we held that Section 8550 only waives four specific immunities for willful misconduct which pertain to local agency employees and does not affect the immunity of local agencies. Additionally, exceptions to the general immunity of local agencies pursuant to Section 8541 are limited by Section 8542(a) of the Act*fn6 to injuries caused by negligence. Negligence is defined in Section 8542(a)(2)*fn7 as not including willful misconduct. See Mascaro v. Youth Study Center, 89 Pa. Commonwealth Ct. 388, 492 A.2d 786 (1985), rev'd on other grounds, Pa. , 523 A.2d 1118 (1987). The actions for malicious prosecution against School District are barred by the general immunity of Section 8541 of the Act.

[ 103 Pa. Commw. Page 442]

    malicious prosecution because 42 Pa. C.S. § 5524 provides a two year time limitation in which an action for malicious prosecution must be commenced.*fn9 We agree.

The six month time limitation of 42 Pa. C.S. § 5522(b) does not apply if the action being brought is "subject to another limitation specified in this subchapter." The subchapter involved is Subchapter B, which includes 42 Pa. C.S. §§ 5521-5536. Section 5524 falls within Subchapter B and, therefore, the two year time limitation of that section applies to actions for malicious prosecution against government officers, even if they were acting in the execution of their office.

The trial court held that 42 Pa. C.S. § 5522(b)(1) barred the actions against School Directors on the basis that Appellants' complaints stated that School Directors were acting in their official capacity. The trial court correctly noted that the six month filing deadline of 42 Pa. C.S. § 5522(b)(1) is limited to actions against government officials for acts done within the execution of their office. However, the trial court erred, as a matter of law, in concluding that this limitation means that all actions against officials which are based on acts performed within the scope of their office are subject to this six month time limitation. To do so ignores the language of the statute which limits its effect to actions not subject to specific time limitations.*fn10 See Salaneck v. Olena, 558 F. Supp. 370 (E.D. Pa. 1983).

[ 103 Pa. Commw. Page 444]

It is not contested that Appellants' actions for malicious prosecution accrued on May 5, 1983 when the criminal charges against them were dismissed. Appellants brought their actions on September 11, 1984, prior to the expiration of the two year limitation. Therefore, Appellants' actions against School Directors are not time-barred.

In light of the foregoing analysis, we affirm the grant of summary judgment for School District but reverse as to School Directors.

Order

And Now, February 3, 1987, the order of the Court of Common Pleas of Washington County in the above-captioned matter, granting summary judgment, is affirmed in part, as to the California Area School District and reversed in part, as to Roger Emelson, Joseph DeBlassio, Jr., Kenneth L. Downer and Edgar Delbarre.

Disposition

Affirmed in part and reversed in part.


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