The opinion
J-A20033-24
2024 PA Super 307
JOHN J. O'BRIEN III : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KRISTA K. BEATTY : No. 2969 EDA 2023
Appeal from the Order Entered November 1, 2023
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2023-16625
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J.
OPINION PER CURIAM: FILED DECEMBER 20, 2024
The issue in this appeal is whether counsel for the Office of Disciplinary
Counsel (“ODC”) who prosecutes a lawyer through the disciplinary process is
immune from a civil action that the prosecuted lawyer subsequently files
against the disciplinary counsel. We hold that disciplinary counsel is immune
from a civil action when the lawyer’s allegations are based on disciplinary
counsel’s conduct during the disciplinary proceedings.
In this case, Appellant, John J. O’Brien, Esq. filed a civil action against
Appellee, Krista Beatty, Esq. (“Disciplinary Counsel Beatty”) based on
allegations about her conduct during his disciplinary proceedings. The trial
court sustained Disciplinary Counsel Beatty’s preliminary objections and
dismissed the complaint. Appellant appealed. After careful review, we affirm.
We glean the relevant factual and procedural history from the trial court
opinion. In September 2020, the ODC initiated disciplinary proceedings
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against Appellant and assigned Disciplinary Counsel Beatty to prosecute
Appellant. In November 2023, a Hearing Committee found that Appellant had
violated the Rules of Professional Conduct relating to his responsibility to hold
client funds in his IOLTA account. At the hearing, Disciplinary Counsel Beatty
requested a sanction of suspension from the practice of law for a year and a
day, which, following the submission of briefs, the Hearing Committee
ultimately recommended. The Disciplinary Board of the Supreme Court of
Pennsylvania (“Disciplinary Board”) reviewed the recommendation and
increased the sanction to a two-year suspension. On July 27, 2021, the
Supreme Court of Pennsylvania issued a final decision, adopting the
recommendation of the Disciplinary Board.1
On July 19, 2023, Appellant pro se instituted this civil action, seeking
monetary damages against Disciplinary Counsel Beatty. Appellant does not
dispute that his claim is based on allegations about Disciplinary Counsel
Beatty’s conduct during the disciplinary proceedings but claims that
Disciplinary Counsel Beatty “waived her immunity” because she presented
false evidence against him during the disciplinary proceedings and engaged in
ex parte communications with the Hearing Committee to seek an increased
penalty for Appellant. Complaint, 1/10/24, at ¶¶ 27, 37, 38.
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1 Disciplinary proceedings against lawyers in Pennsylvania begin with a
hearing before a hearing committee which issues a recommended decision.
Pa.R.D.E. 208(b); (c). The Disciplinary Board then may affirm or change the
recommendation, following briefing and oral argument, if requested. Id. at
(d)(1)-(2). The Supreme Court then conducts a de novo review of the Board’s
recommendation and issues a final decision. Id. at (d)(2)(iii), (e).
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On August 30, 2023, Disciplinary Counsel Beatty filed preliminary
objections asserting prosecutorial, quasi-judicial, sovereign, and high public
official immunities. Appellee’s Preliminary Objections, 8/30/23, at ¶ 11. She
also asserted that Appellant’s action is barred by the two-year statute of
limitations for fraud set forth in 42 Pa.C.S. § 5524(7). Id. Appellant then
filed preliminary objections in response, in which he argued, inter alia, that
Disciplinary Counsel Beatty was not entitled to immunity from his lawsuit.
See Preliminary Objections, 9/12/23, at 4, 6-7.
The trial court concluded that Disciplinary Counsel Beatty was entitled
to high public official immunity. Accordingly, on November 1, 2023, the trial
court overruled Appellant’s preliminary objections to Disciplinary Counsel
Beatty’s preliminary objections, sustained Disciplinary Counsel Beatty’s
preliminary objections, and dismissed the complaint with prejudice.
Appellant filed an appeal, and both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. It is an error of law to apply absolute immunity to a rogue
counsel for the Board who engages in fabrication of evidence and
lies to two panels.
2. It is an error of law to ignore the violation of due process when
[Disciplinary Counsel Beatty] encouraged a panel to increase the
penalty with no notice and hearing.
3. It is an error of law not to allow the fact finder to address the
admitted misconduct of [Disciplinary Counsel Beatty].
Appellant’s Br. at 2.
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Appellant first challenges the trial court’s order sustaining Disciplinary
Counsel Beatty’s preliminary objections in the nature of a demurrer filed
pursuant to Pa.R.Civ.P. 1028(a)(4).2 “Preliminary objections in the nature of
a demurrer test the legal sufficiency of the complaint.” Catanzaro v.
Pennell, 238 A.3d 504, 507 (Pa. Super. 2020) (citation omitted). The trial
court must resolve preliminary objections “solely on the basis of the pleadings;
no testimony or other evidence outside of the complaint may be considered[.]”
Hill v. Ofalt, 85 A.3d 540, 547 (Pa. Super. 2014) (citation omitted). The
court must accept as true all material facts set forth in Appellant’s pleadings
and all reasonable inferences. See id. Finally, preliminary objections seeking
dismissal of a cause of action “should be sustained only in cases in which it is
clear and free from doubt that the pleader will be unable to prove facts legally
sufficient to establish the right to relief.” Catanzaro, 238 A.3d at 507
(citation omitted).
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2 Rule 1028(a)(4) provides: “Preliminary objections may be filed by any party
to any pleading and are limited to the following grounds: . . . legal insufficiency
of a pleading (demurrer)[.]” Pa.R.Civ.P. 1028(a)(4). A defendant generally
raises immunity defenses in an Answer and New Matter, but if she raises an
immunity defense in preliminary objections, and the plaintiff does not object,
then the court may address the immunity defense. See Pollina v. Dishong,
98 A.3d 613, 617 n.3 (Pa. Super. 2014) (recognizing that, under Pa.R.C.P.
1030(a), immunity should be plead as new matter rather than as preliminary
objections but holding that “the failure of the opposing party to object to the
defective preliminary objections waives the procedural defect and allows the
trial court to rule on the preliminary objections”). Appellant’s failure to object
to this procedural defect in his preliminary objections waived this claim and
permitted the court to rule on Disciplinary Counsel Beatty’s preliminary
objections.
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“In reviewing the propriety of the court’s grant of preliminary objections
in the nature of a demurrer, [appellate courts] apply the same standard as
the trial court[.]” Id. As the question involves a pure question of law
regarding the legal sufficiency of the complaint, our standard of review is de
novo. See id.
*
Appellant asserts that the trial court erred in sustaining Disciplinary
Counsel Beatty’s preliminary objections because there were factual issues as
to whether Disciplinary Counsel Beatty should be granted high public official
immunity when she lacks policy-making authority and “it was an error of law
to conclude without evidence and a violation of due process to find that
[Disciplinary Counsel Beatty] makes policy.” Appellant’s Br. at 4. We reject
these arguments as meritless.
We first note that Rule 209(b) of Pennsylvania Rules of Disciplinary
Enforcement (“Rule 209(b)”) provides immunity to disciplinary counsel from
civil suits. Specifically, it provides that “[m]embers of the Board, members of
hearing committees, special masters, Disciplinary Counsel and staff shall
be immune from civil suit for any conduct in the course of their official
duties.” Pa.R.D.E. 209(b) (emphasis added). Since Appellant’s claims are
based on Disciplinary Counsel Beatty’s actions when prosecuting Appellant
during the disciplinary proceedings, Rule 209(b) grants Disciplinary Counsel
Beatty immunity from Appellant’s claims and the trial court properly sustained
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Disciplinary Counsel Beatty’s preliminary objections and dismissed the
complaint with prejudice. 3
*
We also note that the doctrine of high public official immunity, as set
forth in Durham v. McElynn, 772 A.2d 68, 69-70 (Pa. 2001), grants
Disciplinary Counsel Beatty immunity from Appellant’s claims. In Durham,
our Supreme Court explained that “high public officials are immune from suits
seeking damages for actions taken or statements made in the course of their
official duties.” 772 A.2d at 69. The standard for determining who qualifies
as a high public official “focus[es] on the nature of the duties of the particular
public officer, the importance of his office, and whether or not he has policy-
making functions.” Id.
The Supreme Court also noted that an official’s policy-making function
is not the sole factor in determining whether an individual is entitled to
immunity from civil suits. Id. at 70. Rather, the Supreme Court found that
“it is the public interest in seeing that the official not be impeded in the
performance of important duties that is pivotal.” Id. Accordingly, the
Supreme Court extended high public official immunity to assistant district
attorneys (“ADAs”) who, despite lacking a policy-making function, “are
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3 Although the trial court did not rely on Rule 209(b), we “may affirm a trial
court’s ruling on any basis supported by the record on appeal.” Lynn v.
Nationwide Ins. Co., 70 A.3d 814, 823 (Pa. Super. 2013).
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essential to district attorneys in fulfilling responsibilities of their high public
offices, to wit, in carrying out the prosecutorial function.” Id.
The Supreme Court also addressed the scope of conduct of a high public
official that is immune from a civil suit. “In Pennsylvania, high public official
immunity is a long-standing category of common law immunity that acts as
an absolute bar to protect high public officials from lawsuits arising out of
actions taken in the course of their official duties and within the scope of their
authority.” Doe v. Franklin County, 174 A.3d 593, 603 (Pa. 2017).
Furthermore, the Supreme Court has cited with approval the cases that
provided high public officials with absolute immunity, which is “unlimited” and
extends to “all civil suits for damages arising [from] false defamatory
statements” and for “statements or actions motivated by malice, provided
the statements are made or the actions are taken in the course of the
official’s duties or powers and within the scope of [her] authority[.]”
Durham, 772 A.2d at 69 (emphasis in original)(quoting Matson v. Margiotti,
88 A.2d 802, 899–900 (Pa. 1952), overruled on other grounds by
Commonwealth v. Schab, 383 A.2d 819 (Pa. 1978)); see also
Montgomery v. Philadelphia, 140 A.2d 100, 103 (Pa. 1958) (Absolute
immunity “remov[es] any inhibit[i]on which might deprive the public of the
best service of its officers and agencies.”).
In this case, the trial court concluded that Disciplinary Counsel Beatty
was immune from Appellant’s claims even though she does not hold a policy-
making position by analogizing her position to that of an ADA. Trial Ct. Op.
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at 3. We agree. Like an ADA, who fulfils the responsibilities of the District
Attorney by prosecuting those who violate criminal statutes and protecting the
public from such individuals, Disciplinary Counsel Beatty fulfils the
responsibility of the ODC by prosecuting, and thus protecting the public from
lawyers who violate the Code of Professional Responsibility. Accordingly, we
extend the holding of Durham to grant high public official immunity to
disciplinary counsel in the performance of their prosecutorial duties.
Finally, we address the scope of the conduct of the high public official
that is immune from civil suit. Since we are reviewing the trial court’s order
to sustain Disciplinary Counsel Beatty’s Preliminary Objections, we must
accept Appellant’s allegations about Disciplinary Counsel Beatty’s conduct as
true. In doing so, we find that the scope of the immunity covers Appellant’s
accusations of misconduct because Appellant bases the allegations on conduct
that Disciplinary Counsel allegedly engaged in during her prosecution of
Appellant’s violations of the Code of Professional Responsibility. Durham,
772 A.2d at 69-70.
In particular, Appellant alleges that Disciplinary Counsel Beatty
presented false evidence against him during the disciplinary proceedings and
engaged in ex parte conversations with the Hearing Committee.4 These
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4 Although we treat the allegation as true that Disciplinary Counsel Beatty
engaged in ex parte communication with the Hearing Committee in which she
requested that the Hearing Committee increase his suspension to one year
and one day, we note that Appellant supports this allegation in the Complaint
(Footnote Continued Next Page)
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allegations are insufficient to deprive Disciplinary Counsel Beatty of immunity
from Appellant’s civil action because Appellant alleges that Disciplinary
Counsel Beatty engaged in this conduct during the disciplinary proceedings.
In sum, we agree with the trial court’s decision and conclude that both
Rule 209(b) and the high public official immunity doctrine espoused in
Durham grant immunity to Disciplinary Counsel Beatty from the Complaint
because Appellant’s claims concern Disciplinary Counsel Beatty’s alleged
conduct during the disciplinary proceedings against Appellant. Accordingly,
we affirm the order sustaining Disciplinary Counsel Beatty’s preliminary
objections based upon the legal insufficiency of Appellant’s complaint pursuant
to Pa.R.Civ.P. 1028(a)(4).5
Order affirmed.
Date: 12/20/2024
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by attaching a portion of a transcript from the hearing. See Compl. at Ex. G.
The transcript, however, demonstrates that Disciplinary Counsel Beatty
requested this sanction at the hearing and does not even allude to an
allegation that Disciplinary Counsel Beatty engaged an ex parte interaction
with the members of the Hearing Committee. Id.
5 In light of our disposition, we need not address Disciplinary Counsel Beatty’s
claim that the statute of limitations bars this action.
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