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08/11/97 RUSSELL MCKIBBEN v. AGNES SCHMOTZER

August 11, 1997

RUSSELL MCKIBBEN, APPELLEE
v.
AGNES SCHMOTZER, APPELLANT; RUSSELL MCKIBBEN, APPELLANT V. AGNES SCHMOTZER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division at No. GD93-7940. Before PENKOWER, J.

Before: Del Sole, Popovich and Hester, JJ. Opinion BY Popovich, J. Del Sole, J. did not participate in the consideration or decision of this case.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed August 11, 1997

This is an appeal from the order of the Court of Common Pleas of Allegheny County which granted a new trial on liability and damages on Russell McKibben's malicious prosecution and two defamation claims, one for slander and one for libel. Following trial in this matter, the jury found that Agnes Schmotzer had both defamed and instituted a malicious prosecution of McKibben and awarded $50,000 in compensatory and $30,000 in punitive damages.

In determining that a new trial was warranted, the lower court ruled that Agnes Schmotzer, who was mayor of the Borough of Dormont, was a "high public official" and, therefore, was immune from liability for the defamation of Russell McKibben, who was chief of police of the Borough of Dormont, to the extent that her statements were made within the scope of the mayor's official duties. The court further ruled that "since the issues of liability for libel and slander are inextricably intertwined with the issues of liability for malicious prosecution and with the issue of total damages, a new trial must be held on all issues." Opinion of March 14, 1996, p.7. Upon review, we must reverse the lower court's Conclusion that a new trial on all counts of the complaint is necessary. Rather, we conclude that Mayor Schmotzer is entitled to judgment as a matter of law on Chief McKibben's claim of libel. Further, we find that a new trial is required as to damages only on Chief McKibben's malicious prosecution and slander causes of action.

Herein, Chief McKibben raises numerous issues regarding whether a mayor of a borough should be afforded the status of a "high public official" such that the mayor is immune from liability for defamatory statements. Mayor Schmotzer has also appealed the trial court's ruling and claims Chief McKibben's malicious prosecution action must fail as a matter of law since there was a finding of probable cause when she filed her private criminal complaint for simple assault against Chief McKibben.

A review of the procedural and factual history of this case is warranted. On May 21, 1993, Chief McKibben filed a civil complaint which included claims for malicious prosecution, libel and slander. Extensive pre-trial litigation ensued, including pre-trial rulings on Mayor Schmotzer's claims that she was immune from the defamation claims due to her status as a "high public official" and her criminal complaint against Chief McKibben was filed with probable cause. Those defenses were rejected by the court below, and trial commenced on all claims on January 30, 1995.

On January 4, 1993, the Dormont Borough Council unanimously appointed Russell McKibben to the post of acting chief of police. Apparently, Mayor Schmotzer supported another candidate for the position. The next day, Chief McKibben and Mayor Schmotzer met to discuss the state of the Dormont police force. Mayor Schmotzer was the first to arrive at the Dormont Municipal Building which also serves and the police station, and she sat at the chief's desk in the building's main office. The main office had traditionally been occupied by both the mayor and chief of police, and the long-standing custom was for the Chief to use the larger desk in the office since the job of mayor in Dormont was a de facto part-time position. *fn1 An argument between the two ensued when Mayor Schmotzer told Chief McKibben that the office was hers and she could order him out if she wished. During the argument, Mayor Schmotzer attempted take the telephone from the Chief's possession, and she injured her thumb.

Mayor Schmotzer then accused Chief McKibben of physically assaulting her by pushing her and slamming the phone down upon her hand. She demanded that the dispatcher on duty at the police station take an assault report. Chief McKibben directed the dispatcher not to take the report since he knew the allegations to be false and the dispatcher was not authorized to perform such a task. Later, Chief McKibben directed another officer not to take the report after Mayor Schmotzer demanded the same action of him. The Mayor and Chief subsequently reviewed the day's paperwork, and then Mayor Schmotzer went home. Later that morning, Mayor Schmotzer went to the emergency room of St. Clair Memorial Hospital and complained of an injury to her hand. She was examined, x-rayed and released after being given a brace to wear.

The following day, Mayor Schmotzer notified Chief McKibben that she was suspending him from duty for "conduct unbecoming of a police officer, insubordination and assault and battery." She also contacted the Allegheny County District Attorney's office and demanded that Chief McKibben be investigated and criminally charged with assault. Next, on January 8, 1993, Mayor Schmotzer drafted and released to Allegheny County media outlets a "News Release" on Dormont Police Department stationary which, inter alia, accused Chief McKibben of a "brutal and unprovoked assault and battery on myself, the Mayor" and stated, "the lack of self-discipline on McKibben;s (sic) part is proof he is unfit to serve in his management capacity." Both the Pittsburgh Post-Gazette and Tribune Review published articles on the incident. The Keystone Times Journal published a front-page article with the headline, "Police Chief Assaults Mayor."

Ten days after release of the mayor's "News Release", the Dormont Borough Council met and unanimously reinstated McKibben as Acting Chief of Police. *fn2 Council also voted to censure the mayor for her reckless handling of the incident. Meanwhile, the district attorney conducted an investigation of the mayor's allegations and decided not to file criminal charges against Chief McKibben. Consequently, Mayor Schmotzer filed a private criminal complaint wherein she formally accused Chief McKibben of simple assault. Judge Novak of the Allegheny County Court of Common Pleas was designated as the issuing authority, and, after review of the complaint, he determined that there was probable cause, accepted the private criminal complaint and issued process in the form of a subpoena, given the sensitive nature of the case. However, following the preliminary hearing, Judge Novak dismissed the private criminal complaint due to the Commonwealth's failure to set forth a prima facie case. *fn3

Immediately following the hearing, Mayor Schmotzer told a reporter from the Pittsburgh Post-Gazette that Chief McKibben had lied on the witness stand, stating, "The acting chief lied. He has to wash his face in the morning and I hope he likes what he sees." Several days later, Mayor Schmotzer's comments were published in an article in the Post-Gazette.

In addition to his liability evidence, Chief McKibben presented numerous witnesses who testified that Mayor Schmotzer's press release, accusations and prosecution of appellant were extremely upsetting to him and his family and severely damaged his reputation which is especially important to a law enforcement official.

The jury then considered the evidence and in response to interrogatories, found: 1) Mayor Schmotzer initiated criminal proceedings against Chief McKibben with malice and without probable cause; 2) The statements made in Mayor Schmotzer's "News Release" about Chief McKibben which was dated January 8, 1993, were not true; 3) The statements made in Mayor Schmotzer's "News Release" about Chief McKibben which was dated January 8, 1993, were made with malice; 4) The statements made by Mayor Schmotzer about Chief McKibben following his preliminary hearing on April 23, 1993, were not true; and 5) The statements made by Mayor Schmotzer about Chief McKibben following his preliminary hearing on April 23, 1993, were made with malice. The jury then awarded Chief McKibben $50,000 in compensatory and $30,000 in punitive damages. The damages award did not distinguish the amount of damages which were awarded for each specific count of the ...


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