Simon v. Com.

• Citation: 659 A.2d 631
• Parties: George M. SIMON and Eugene P. Weisman, Petitioners, v. COMMONWEALTH of Pennsylvania, Respondent.
• Decision Date: 22 May 1995
• Court: Commonwealth Court of Pennsylvania

Page 631

659 A.2d 631

George M. SIMON and Eugene P. Weisman, Petitioners, v. COMMONWEALTH of Pennsylvania, Respondent.

Commonwealth Court of Pennsylvania.

Argued Dec. 6, 1994.

Decided May 22, 1995.

Bruce S. Rogow, for petitioners.

Joanna N. Reynolds, Asst. Counsel, for respondent.

Before DOYLE and KELLEY, JJ., and SILVESTRI, Senior Judge.

KELLEY, Judge.

Presently before this court in our original jurisdiction ¹ are the motion for judgment on the pleadings of George M. Simon and Eugene P. Weisman (petitioners) and the cross-motion for judgment on the pleadings of respondent, the Commonwealth of Pennsylvania (Commonwealth).

I. PROCEDURAL HISTORY

On July 6, 1993, petitioners filed a two count complaint for declaratory and injunctive relief against the Pennsylvania Crime Commission and Michael J. Reilly, Chairman of the Commission (hereinafter collectively referred to as the "Commission"). By order of July 8, 1993, this court directed that the complaint be regarded and acted upon as a petition for review addressed to this court's original jurisdiction. The complaint seeks declaratory and injunctive relief, for the alleged violation of petitioners' state and federal constitutional right to due process. ²

Preliminary objections filed to the complaint by the Commission were overruled and petitioners' preliminary objections to the preliminary objections were sustained by order of this court dated December 6, 1993. Thereafter, the Commission filed an answer and new matter to the complaint raising the following affirmative defenses in its new matter: sovereign immunity, legislative immunity, specific statutory immunity, failure to give prerequisite notice of action against the Commission, failure to file within the proper statute of limitations, and failure to use administrative remedy.

On March 2, 1994, petitioners filed a motion for voluntary discontinuance of Count II of the complaint and a motion for judgment on the pleadings and brief in support of the motion. Petitioners' motion for voluntary discontinuance was granted by order of this court dated April 5, 1994.

On March 16, 1994, the Commission filed a motion to amend paragraph 9 of their answer. The Commission initially responded to paragraph 9 of the complaint as follows: "Petitioners' averment is a conclusion of law, for which no response is necessary." ³ The Commission's motion to amend was granted and the Commission amended its answer to paragraph 9 to read: "After reasonable investigation, the Respondent is without knowledge or information to form a belief as to the truth of the averment." On May 2, 1994, petitioners filed their reply to the Commission's new matter.

Thereafter, on September 14, 1994, petitioners filed a motion to substitute the Commonwealth as the respondent in this action in lieu of the Commission and Reilly on the basis that the Commission did not legally exist as of July 1, 1994. ⁴ The motion was granted by order of this court dated September 23, 1994 and the Commonwealth was substituted as the respondent in this action. On October 28, 1994, the Commonwealth filed an answer to petitioners' motion for judgment on the pleadings and a cross-motion for judgment on the pleadings with a brief in support thereof.

II. FACTUAL HISTORY

The facts surrounding this action, as pled in petitioners' complaint and admitted in the Commonwealth's answer thereto, are as follows. In 1992, the Commission published a report entitled "Racketeering and Organized Crime in the Bingo Industry." In the report, the Commission makes reference to both petitioners as being involved in the operation of bingo games and through said operation as being connected to organized crime figures.

Prior to the publication of the 1992 report, Petitioners were denied: (1) notice that their reputations were at issue; (2) an opportunity to be heard; (3) an opportunity to confront and cross-examine any witnesses whose statements or testimony was used to produce the published statements; and (4) an opportunity to subpoena witnesses on their own behalf to testify before the Commission.

III. MOTIONS FOR JUDGMENT ON THE PLEADINGS

Pursuant to Pa.R.C.P. No. 1034, "[a]fter the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings." A motion for judgment on the pleadings is in the nature of a demurrer in which all of the nonmovant's well-pleaded allegations are viewed as true, but only those facts specifically admitted by the nonmovant may be considered against him. Kerr v. Borough of Union City, 150 Pa.Commonwealth Ct. 21, 614 A.2d 338, petition for allowance of appeal denied, 534 Pa. 651, 627 A.2d 181 (1992). Such a motion may only be granted in cases where no material facts are at issue and the law is so clear that a trial would be a fruitless exercise. Id. In passing upon a motion for judgment on the pleadings, the court may consider only the pleadings themselves and any documents properly attached thereto. Capuzzi v. Heller, 125 Pa.Commonwealth Ct. 678, 558 A.2d 596, petition for allowance of appeal denied, 523 Pa. 650, 567 A.2d 653 (1989).

With these principles in mind, this court will address the petitioners' and the Commonwealth's motions separately. Petitioners move for judgment on the pleadings on the basis that they cannot be deprived of their state constitutional right to possess and protect their reputations without being afforded due process. Petitioners contend that due process requires notice and a meaningful opportunity to hear the Commonwealth's evidence of criminal connections or activity and to be heard on the issue.

The Commonwealth has moved for judgment on the pleadings on the following grounds: ⁵

1. Since the Commission served an investigative, fact-finding function only, and did not make accusations of criminal conduct, or serve any prosecutive function, due process protections do not apply to individuals such as petitioners, who were named in an investigative report issued by the Commission;

2. At the time of the filing of the complaint in this matter, the Commission was absolutely immune from any liability for statements made in the reports issued by the agency, pursuant to section 9 of the Pennsylvania Crime Commission Act, 71 P.S. § 1190.9; and

3. Since the petitioners did not file the notice of claim required by The Judicial Code, 42 Pa.C.S. § 5522(a)(2), within six months of publication of the 1992 report (i.e., the date of injury), the claim must be dismissed.

This court will address first the Commonwealth's contentions that it is absolutely immune pursuant to section 9 of the Act and that the claim must be dismissed for petitioners' failure to comply with the notice requirements of 42 Pa.C.S. § 5522(a)(2).

A. IMMUNITY

The Commonwealth argues that since the Commission was an investigative arm of the General Assembly, its activities and reports are entitled to immunity under either section 9 of the Act or art. II, § 15 of the Pennsylvania Constitution. Section 9 of the Act, ⁶ 71 P.S. § 1190.9, in effect at the time the report in question was published, provided as follows:

Any statement or disclosure of information made by a commissioner or an employee of the commission during the course of any commission hearing or official proceeding and any report issued by the commission shall be absolutely privileged and such privilege shall be an absolute defense to any action for invasion of privacy, defamation or other civil or criminal action.

Art. II, § 15 of the Pennsylvania Constitution, known as the Speech and Debate Clause, grants immunity to members of the General Assembly when engaged in speech and debate in the General Assembly. The Commonwealth contends that such immunity extends to the commission as it performed legislative functions by investigating crime in Pennsylvania.

In response, petitioners argue that section 9 of the Act only provides immunity and an absolute defense against damage actions, not equitable actions which are founded on the constitution. Further, petitioners contend that the Commonwealth is not immune pursuant to the Speech and Debate Clause of the Pennsylvania constitution as it does not extend immunity to a body like the commission which had no power to legislate.

We agree with petitioners that the Commonwealth is not immune under either section 9 of the Act or art. 2, § 15 of our Constitution. With regard to statutory immunity pursuant to section 9, petitioners are only seeking constitutional compliance through equitable relief. They are not seeking monetary damages or criminal remedies. Accordingly, the Commonwealth is not immune pursuant to section 9 of the Act. This holding is consistent with the current state of the law governing sovereign immunity which holds that sovereign immunity does not apply to suits which simply seek to restrain state officials from performing affirmative acts. ⁷ See Wilkinsburg Police Officers v. Commonwealth, 535 Pa. 425, 636 A.2d 134 (1993) (Suits which seek to compel affirmative action on the part of state officials or to obtain money damages or to recover property from the Commonwealth are within the rule of immunity; suits which simply seek to restrain state officials from performing affirmative acts are not within the rule of immunity.)

With respect to art. II, § 15 of the Pennsylvania constitution, our Supreme Court has held that

[l]egislative immunity [created by the Speech and Debate Clause] does not ... bar all judicial review of legislative acts.... Even where an action against a legislator is barred by the Speech or Debate Clause, legislative employees who participate in unconstitutional activity are responsible for their actions;

Sweeney v. Tucker, 473 Pa. 493, 506, 375 A.2d 698, 704 (1977) (citations omitted).

Therefore, an investigative arm of the General Assembly, the members of the Commission are subject to liability for any participation in unconstitutional activity.

Accordingly, the...