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KENNETH MALIA AND DEBORAH MALIA v. PAULETTE MONCHAK ET AL. (06/02/88)

decided: June 2, 1988.

KENNETH MALIA AND DEBORAH MALIA, HIS WIFE, APPELLANTS
v.
PAULETTE MONCHAK ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County, in the case of Kenneth Malia and Deborah Malia, his wife v. Paulette Monchak, Edward A. Vollbrecht, Wilton E. Dangler, Thomas Pugh, Mary S. Kowalski, Richard Hardy, Judy Rampp, Arthur M. Saxe, Steven Stahl, Robert Stevens, Alan Wolfe, being members of the Northwest Area School Board, No. 5085-C of 1985.

COUNSEL

Thomas E. Leipold, with him, Michael R. Lynn, Michael R. Lynn & Associates, for appellants.

Joseph J. Heston, with him, Patrick E. Dougherty, Dougherty, Mundy & Leventhal, for appellees.

Charles R. Coslett, Coslett & Coslett, for appellee, Northwest Area School District.

Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 116 Pa. Commw. Page 486]

Kenneth and Deborah Malia (Appellants) appeal from an order of the Luzerne County Court of Common Pleas sustaining the preliminary objections of Paulette Monchak, Edward A. Vollbrecht, the Northwest Area School Board members (School Board),*fn1 Arthur M. Saxe and Richard Hardy (collectively Appellees) and dismissing Appellants' complaint against Appellees. We affirm in part and reverse in part.

Kenneth Malia (Malia) and his wife, Deborah, filed a defamation action against Appellees on December 23, 1985. Appellants made the following factual averments in their complaint:

Kenneth Malia was employed as vice-principal of the Northwest Area Junior-Senior High School in August 1984. Monchak was principal of the school and Vollbrecht was superintendent of schools in the Northwest Area School District. On June 21, 1985, Monchak made a written evaluation of Malia in which she rated his performance as vice-principal as "unsatisfactory," described his performance as "inept" and characterized Malia as "insubordinate" and "inattentive."*fn2 On June 18, 1985, Vollbrecht signed this evaluation and, based on its contents, recommended to the School Board that

[ 116 Pa. Commw. Page 487]

Malia be discharged. Malia, Monchak and Vollbrecht met informally with the School Board to discuss Vollbrecht's recommendation on July 8 and 25, 1985.

The School Board then scheduled a public hearing on the issue of whether Malia's employment should be terminated. Malia objected to a public hearing being held prior to the School Board making a decision on Vollbrecht's recommendation that he be discharged.*fn3 A public hearing was held on October 3, 1985 at which Monchak testified Malia's job performance was "inept" and "unsatisfactory." After this hearing, Vollbrecht withdrew his recommendation that Malia be dismissed.

The School Board, at its regularly advertised public meeting on November 18, 1985, voted to dismiss the termination proceedings. Following this action, school board member Saxe stated that Malia was "grossly insubordinate, if not incompetent." After the meeting was finished, school board member Hardy, within the hearing of members of the general public and Deborah Malia, stated to Malia, "you're the cause of all this."

Appellants' complaint contains five separate counts of defamation. Count I is against Monchak. It is based on the statements she made in her June 21, 1985 written evaluation and during her testimony at the October 3, 1985 public hearing. Appellants allege that the statements were "untrue and motivated by malicious personal animosity" and were made "for the purposes of injuring Plaintiff, Kenneth Malia." Count II is against Vollbrecht and is based on his affirmation of Monchak's evaluation and his recommendation that Malia be dismissed

[ 116 Pa. Commw. Page 488]

    when Vollbrecht allegedly had knowledge that Monchak's statements in the evaluation "were untrue and motivated by malicious personal animosity." Count III is against the School Board and is based on the School Board's decision to hold "unnecessary and inappropriate" public hearings which permitted "further publication" of Monchak's statements. Count IV is against Saxe for his statement made following the School Board's dismissal of the termination action. Appellants allege Saxe's statement was "untrue and motivated by malicious personal animosity." Count V is against Hardy for his statement made following the November 18, 1985 public hearing. Appellants allege the statement was "untrue and motivated by malicious personal animosity."

In response to Appellant's complaint, Appellees, on January 14, 1986, filed preliminary objections in the nature of a demurrer to all five counts. Appellees asserted that they were immune to suit*fn4 and that any statements made constituted "mere opinion." The trial court sustained the demurrer and dismissed Appellants' complaint. In the accompanying opinion, the trial court held that Monchak, Vollbrecht and the School Board were entitled to absolute immunity because they were "acting in the discharge of their statutory duty to rate Plaintiff," Malia v. Monchak (No. 5085-C of 1985, filed July 14, 1986), slip op. at 2, and that the statements made by Saxe and Hardy were "pure" opinion and not actionable. Id. at 10. On appeal to this Court, Appellants contend the trial court erred in concluding (1) that Monchak, Vollbrecht and the School Board were entitled

[ 116 Pa. Commw. Page 489]

    to "absolute immunity" and (2) that the statements made by Saxe and Hardy were "pure" opinion.

Initially, we find it necessary to stress that Pa. R.C.P. No. 1030 requires the affirmative defense of immunity to be raised as new matter. However, if the defense of immunity is apparent on the face of the challenged pleading,*fn5 the defense of immunity will be considered on preliminary objection unless the opposing party challenges this procedure by filing preliminary objections to the preliminary objections. McCreary v. ...


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