Thomas v. Osborn
| Decision Date | 10 December 1965 |
| Docket Number | 46 |
| Citation | 38 Pa. D. & C.2d 431 |
| Parties | Thomas v. Osborn |
| Court | Pennsylvania Commonwealth Court |
July term, 1965.
Richard Reifsnyder, for plaintiff.
Norman J. Pine, for defendants.
Preliminary objections in the nature of a demurrer.
Plaintiff sued defendants, both police officers of the Borough of Parkesburg, in trespass to recover for damage to his building and equipment and loss of profits from the necessity of closing his business, all alleged to have been caused by defendants' failure to carry out their duties as police officers in the protection of plaintiff and his property in failing to prevent a riot alleged to have occurred on his property, and failing to quell the riot after it had started on or about April 26, 1965, as well as for damages already caused to his business and property by persons unknown some 10 days later. Defendants filed a preliminary objection in the nature of a rule for more specific complaint and a demurrer. At argument, the rule for more specific complaint was withdrawn, and defendants stand on their demurrer alone. After argument, the matter is before us for decision. The demurrer must be sustained.
While the demurrer fails to state specifically the grounds relied upon in conformity with the requirements of Rule 1028(a), Pennsylvania Rules of Civil Procedure, and the decisions of our court requiring that to be done (Davis v. D'Ambrosio, 13 Chester 401; Gentile v. Stewart (No. 1), 13 Chester 92; Cooper v. Foremost Ins. Co., 13 Chester 96), that question has not been raised by plaintiff. On the contrary, he has argued and submitted the case on the demurrer, and we shall, therefore, pass upon it. However, our action in so doing is not to be considered as a precedent.
Plaintiff's allegations, in summary, are that he was the operator of a gasoline and oil distribution business at a service station in the Borough of Parkesburg; that both defendants, as police officers of the borough, were charged with the protection of the persons and property of residents of the borough; that beginning in early 1965, various persons trespassed on plaintiff's place of business, disturbed the peace there, and interfered with his lawful business; that on such occasions he notified defendants of the disturbances and trespasses, but that they refused to take proper corrective legal action as law enforcement officers and that their inaction in that respect was " both negligent and wilful" ; that about April 26, 1965, a riot occurred on plaintiff's premises, but defendants " negligently and wilfully failed to prevent the same or to quell the same once it had started", as a result of which his building and equipment were damaged; that about 10 days later he attempted to reopen his place of business, and that after closing it for the day about 10 p.m., his equipment and property were again damaged " by persons unknown" ; that he reported the matter to defendants, who " negligently and wilfully failed properly to protect Plaintiff and his property" ; and that as a result of " Defendants' negligence and wilful failure to carry out their duties as police officers in the protection of Plaintiff and his property", he has been forced to discontinue his business at that location.
In passing, we note that plaintiff's averments that defendants' inaction was " wilful", i. e., intentional and " negligent", i.e., careless, are inconsistent. However, in the view we take of the matter, the inconsistency is of no basic importance, because in neither case does the complaint set forth a cause of action. Under Pennsylvania law, defendants are clearly public officers: Commonwealth v. Hubbs (No. 2), 137 Pa.Super 244, 247; Borough of Norristown v. Fitzpatrick, 94 Pa. 121. As public officers, when acting within the scope of their authority, they are not answerable in damages for the consequences of their acts, unless malice and injury were their compelling motives. The law presumes nothing of that kind against them, and it is incumbent upon a plaintiff seeking to charge them with liability both to plead and to prove that such were the impelling motives for their conduct: Burton v. Fulton, 49 Pa. 151.
As police officers, defendants have reasonable discretion in determining whether or not they should take...
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