congruent in their fact pattern with the matters to be tried here in the federal court between the plaintiffs and the City of Philadelphia.
So I reject that basis for the defendants' motion to dismiss the state law claims against them.
I turn now to the contention that the three individual defendants -- Messrs. Brooks, Sambor and Richmond -- are immune from suit under the law of Pennsylvania. The question of immunity from suit is, under the law of Pennsylvania, better understood as a question of immunity from liability, and the difference is one of some importance.
Immunity in the federal setting focuses on an entitlement on the part of an official not to be sued for certain activities carried out by that official in the course of his or her duties and under certain circumstances such immunity from suit is conferred. And this very litigation exemplifies that.
The Court of Appeals concluded with respect to the three defendants who are the movants here that they were immune from suit for the reason that, so the Court of Appeals concluded, their actions which they were said to be accountable for were actions which a reasonable public official might have thought -- responsibly thought, that is -- were agreeable to the Constitution of the United States, not violations of the Fourth Amendment.
Because the Court of Appeals viewed the record before me and before it in that light and disagreed with me in that assessment, the Court of Appeals reversed my conclusion that the three defendants were not immune from suit under federal law and remanded the case to me with directions to dismiss those three former officials as defendants in the federal lawsuit.
The question of immunity under state law differs in two important respects from the question of immunity under federal law. First, the issue of immunity under state law is an issue of immunity from liability. If one is entitled to immunity, damages cannot be imposed on such a person. By contrast, one who is relying on federal immunity would claim that one is immune from suit and would make that claim early on in the litigation and assert that he or she cannot even be brought into the trial court.
And it was because that was an issue that had to be settled prior to trial that the matter of federal immunity came to the Court of Appeals as it did, rather than waiting as one usually waits for the Court of Appeals to review trial action until after the trial court has tried the case.
Because immunity under state law is a question of immunity from liability rather than from being sued as such, the Court of Appeals which reviewed my 1994 ruling concluded through two of the three judges, that it did not have authority to address the question of state law immunity -- that that issue arose prematurely, that it was not an issue to be addressed by an appellate court prior to the trial. Now, to be sure, one member of the Court of Appeals disagreed with that view, but I am bound by the ruling of the two members of the majority on that issue.
The result is that the question of whether Messrs. Sambor, Brooks and Richmond, or any of them, should be deemed immune from liability in this case was a question which the Court of Appeals did not rule on.
One judge, Judge Scirica, the judge who thought that the Court of Appeals had authority to review that issue, did opine that yes, indeed, the individual defendants were entitled to immunity from liability under the laws of Pennsylvania. But because his two colleagues felt that the Court of Appeals did not have authority to rule on that issue at this phase of the case, Judge Scirica's observations with respect to the issue of immunity, though quite clearly entitled to very great respect, are not observations that control my disposition of the issue one way or another.
I have said that there are two salient differences between the question of immunity under federal law and the question of immunity under state law. I have noted that the first salient difference is that the federal law addresses immunity from suit by contrast with the state law's immunity which focuses on immunity from liability.
The second difference is in what the standard is for determining immunity under federal law versus the standard for determining immunity under state law. I have already noted that the determination of the Court of Appeals on the federal law issue of immunity was one which came to rest on the proposition that these three defendants were immune from suit because the actions which they were alleged to have been responsible for were actions which, at the time and the setting in which they were taken, were actions which a responsible public official vested with their responsibilities could have thought was a proper way of effectuating the arrests of the members of the MOVE group.
The issue of immunity under state law is of a different nature. It does not focus on what some disembodied personage in the position of police commissioner or fire commissioner or city director might reasonably have thought was a reasonable way of carrying out his law enforcement and fire prevention responsibilities.
The issue under state law focuses on the actions of the individual person and what that person intended to accomplish. The basis for immunity under state law is a statute which I will read. It is not a model of clarity, but generally speaking statutes are not models of clarity. I will read it and then I will, in the course of my subsequent discussion, try to explain my understanding of it.
I am reading from Section 8550 of Title 42 of the Pennsylvania Consolidated Statutes. This is a section of the Pennsylvania Tort Claims Act. It provides as follows:
In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.
For our purposes I think it is fair to say that the question of immunity from liability focuses on the phrase "willful misconduct." If there is a basis on which it could be found properly under the evidence that one or another or all of these defendants engaged in "willful misconduct," then that official or those officials would not be immune from liability.
Now, when I addressed these issues before prior to the decision of the Court of Appeals back in January of 1994, I said:
With respect to the claims under state law, I conclude that Commissioners Sambor and Richmond are suable under the state law claims since they could be perceived as having engaged in "willful misconduct," to use the state statutory term. I do not say that that is in any sense a necessary reading of the record, but it is simply that that is a factual question which ultimately is to be addressed by a jury.