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JOSEPH THORN v. LEON NEWMAN AND DONNA NEWMAN (02/24/88)

decided: February 24, 1988.

JOSEPH THORN, INDIVIDUALLY AND AS MAYOR OF MORTON BOROUGH ET AL., APPELLANTS
v.
LEON NEWMAN AND DONNA NEWMAN, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Leon Newman and Donna Newman v. Joseph Thorn, Ind. and as Mayor of Morton Borough, et al., No. 84-374.

COUNSEL

Maria Zulick, Marshall, Dennehey, Warner, Coleman and Goggin, for appellants.

Jon J. Auritt, Auritt & Daly, for appellees.

Judges Craig and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 113 Pa. Commw. Page 644]

This case is here by transfer from the Superior Court. In Newman v. Thorn, 359 Pa. Superior Ct. 274, 518 A.2d 1231 (1986), that court concluded that this case raises issues principally relating to the defense of governmental immunity, which the legislature has committed to the jurisdiction of the Commonwealth Court. See 42 Pa. C. S. ยง 762(a)(7).

The plaintiffs in this case, appellees here, are Leon Newman, a former police officer for the Borough of Morton, and his wife, Donna Newman. The defendants, appellants, are Joseph T. Thorn, Mayor of the Borough of Morton, and Judith B. Bechtel, James McCaffrey, Joseph Savukinas, George Dickerson, and Paul Lytle, members of the borough council.

On February 16, 1983, the mayor suspended Leon Newman from his position as a police officer for the borough. The members of the borough council voted on March 9, 1983, to discharge Mr. Newman. On appeal, the borough's civil service commission, after hearings, decided to uphold Mr. Newman's discharge. The Delaware County Court of Common Pleas quashed as untimely Mr. Newman's appeal from the decision of the civil service commission.

While the matter was pending before the borough's civil service commission, Leon and Donna Newman brought this separate action in the court of common pleas. The plaintiffs' amended complaint alleges that the mayor and the members of council (and later the members of the civil service commission) by seeking or approving Mr. Newman's discharge, intended to retaliate against Mr. Newman and to defame him for, among other things, his proper union-related activities, his work in seeking to preserve the police department when the mayor and council were considering disbanding it, his refusal to "fix" traffic tickets, and his providing

[ 113 Pa. Commw. Page 645]

    information to the Delaware County District Attorney's Office pertaining to allegations of illegal conduct by certain Morton public officials. The Newmans also allege that the defendants either engaged in or condoned other "malicious" conduct, including an intrusive investigation of the Newmans' private affairs by the mayor. For each of these separate incidents of alleged wrongdoing, the Newmans seek relief on both tort and federal civil rights theories.

The defendants filed a motion for summary judgment at the close of the pleadings, advancing the argument, among others, that employees of local government units, including elected officials, have immunity from civil damages actions under certain provisions of what was formerly known as the Political Subdivision Tort Claims Act.*fn1 On November 22, 1985, the trial court granted the defendants' motion for summary judgment "to the extent of the . . . claim relating to the dismissal of Mr. Newman."

On December 9, 1985, the plaintiffs filed an application for reconsideration of the grant of summary judgment, and on the same day the court issued an order vacating the grant of summary judgment and ordering the parties to complete discovery ...


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