Opinion
Argued November 2, 1978
January 18, 1979.
Argued November 2, 1978, before Judges MENCER, DiSALLE and CRAIG, sitting as a panel of three.
Appeal, No. 1921 C.D. 1977, from the Order of the Court of Common Pleas of Westmoreland County in case of F. Donald Raneri v. Leo DePolo and The County of Westmoreland, No. 1404 of 1976.
Complaint in trespass in the Court of Common Pleas of Westmoreland County seeking damages for defamation. Defendants filed preliminary objections. Preliminary objections sustained. McCORMICK, J. for the court en banc. Plaintiff appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated. Case remanded.
Richard H. Galloway, with him Ackerman Galloway, for appellant.
Robert M. Gesselman, with him Irving L. Bloom, Christ. C. Walthour, Jr., and Kunkle, Walthour and Garland, for appellees.
F. Donald Raneri, a Westmoreland County Detective, instituted an action in trespass against Leo DePolo and the County of Westmoreland, alleging that Leo DePolo, Chief County Detective of Westmoreland County, made defamatory statements with respect to Raneri.
Both defendants filed preliminary objections in the nature of a demurrer, DePolo asserting that he is cloaked with either absolute or conditional immunity and Westmoreland County claiming protection by reason of the doctrine of immunity, as well as certain deficiencies in the complaint relative to agency and jurisdiction.
The Court of Common Pleas of Westmoreland County sustained the preliminary objections in the nature of a demurrer on the basis of its concluding that Leo DePolo "was a high public official acting within the course of his public duties and as such is protected from liability by the absolute immunity afforded him under the law," and this immunity "extends to the County of Westmoreland as his employer making it immune as well." Raneri filed an appeal from the ruling of the trial court.
It would appear that exclusive appellate jurisdiction of this appeal properly rests in the Pennsylvania Superior Court. 42 Pa. C.S. § 742, We do not deem this case to be within the provisions of 42 Pa. C.S. § 762(a)(4).
The order of the Court of Common Pleas of Westmoreland County, under date of December 7, 1976, sustaining the preliminary objections of defendants, DePolo and Westmoreland County, is vacated, and we remand to that court for reconsideration of the preliminary objections in light of DuBree v. Commonwealth of Pennsylvania, ___ Pa. ___, 393 A.2d 293 (1978). See Wicks v. Milzoco Builders, Inc., ___ Pa. ___, 393 A.2d 300 (1978).
ORDER
AND NOW, this 18th day of January, 1979, the order of the Court of Common Pleas of Westmoreland County, under date of December 7, 1976, sustaining the preliminary objections of the defendants, Leo DePolo and Westmoreland County, is vacated, and the matter is hereby remanded to that court for reconsideration of the preliminary objections in light of DuBree v. Commonwealth of Pennsylvania, ___ Pa. ___, 393 A.2d 293 (1978).