Osiris Enterprises v. Borough of Whitehall

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully dissent from the majority’s decision holding that the Defendants before the trial court are entitled as high public officials to absolute immunity from suit filed by Osiris Enterprises and Antonia F. Moscatiello (Osiris). The trial court granted the Defendants’ preliminary objections despite a prior ruling by Judge O’Reilly of the same court, who previously ruled that the Defendants acted arbitrarily and capriciously when they permanently debarred Osiris from further contracting with the county.

Osiris sued the Defendants based upon an August 1, 2001 vote taken during a Borough Council meeting that declared Osiris to be a non-responsible bidder in the county, even though there was no debate or discussion of the matter and Osiris was not even allowed to respond to the action taken. As a consequence of the vote, Osiris was blocked from obtaining any government-funded contracting work. The ma *570 jority reviews the ease law governing the doctrine of absolute immunity for high public officials, and it concludes that despite Judge O’Reilly’s prior ruling that the Defendants acted arbitrarily and capriciously in their conduct toward Osiris, the Defendants were nevertheless immune from civil suit.

I note that in Montgomery v. City of Philadelphia, 392 Pa. 178 , 140 A.2d 100 (1958), the Pennsylvania Supreme Court explained that the doctrine of absolute immunity for high public officials was created to protect public officials from suit and from the expense, publicity and danger of defending the “good faith” of the public officials’ public actions before a jury. The immunity removes any inhibition that might deprive the public of the best services from its public officers and agencies. Id.

The presumed “good faith” of public officials in the performance of their official duties to the best of their ability represents the basis for the doctrine of absolute immunity but that standard was ignored by the Defendants in this case and therefore the doctrine should not apply. That is particularly so when a judge of the same trial court had ruled that the Defendants acted arbitrarily and capriciously in connection with the permanent debarment of Osiris from further contracting with the county and this Court has affirmed that decision. See Moscatiello v. Whitehall Borough, 848 A.2d 1071 (Pa.Cmwlth.2004). Even excluding Judge O’Reilly’s prior ruling, this case should not have been decided on preliminary objections when Orisis, if allowed to proceed, may have presented facts sufficient to establish that the Defendants’ conduct and actions were so egregious that they totally exceeded the scope of their official duties. Therefore, the trial court’s order should be reversed, and this case should be remanded for further proceedings.