                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 07-4534
                                     _____________

                                  EDWARD G. SMITH,
                                               Appellant

                                               v.

        BOROUGH OF DUNMORE; BOROUGH OF DUNMORE COUNCIL;
          JOSEPH LOFTUS; THOMAS HENNIGAN; JOSEPH TALUTTO;
       FRANK PADULA; LEONARD VERRASTRO; MICHAEL CUMMINGS,
                      individually and as a Councilman,

                                    _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                  (D.C. No. 05-cv-1343)
                        District Judge: Hon. A. Richard Caputo

     BEFORE: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.
                         _______________

                                        ORDER
                                    _______________

        IT IS NOW ORDERED that the opinion in the above captioned case be amended
as follows:

        On page 9, the first paragraph, “3d Cir.” shall be added within the parentheses in
the citation to Hill v. Borough of Kutztown;

       On page 13, the first paragraph shall be replaced by the following:

              The proper bounds of the immunity are illustrated by the
       Pennsylvania Superior Court’s decision in McKibben v. Schmotzer, 700
       A.2d 484 (Pa. Super. 1997). There, a borough mayor accused a borough
       police chief of assaulting her and, as a result, she suspended the chief and
       filed a private criminal complaint against him. Id. at 487. Following the
       suspension, the mayor issued a news release explaining the chief’s
       suspension and describing the “brutal and unprovoked assault” on her. Id.
       Shortly thereafter, a preliminary hearing was held on the assault charges
       and the criminal complaint was dismissed. Id. Immediately after that
       hearing, the mayor made a statement to reporters accusing the chief of
       lying. Id. After the chief prevailed in a defamation suit, the Superior Court
       on appeal held that high public official immunity applied to the mayor with
       respect to the news release because the mayor “was empowered to suspend
       [the chief], and her comments in the ‘News Release,’ although harsh and,
       as the jury found, untrue, were ‘closely related’ to her duties of supervising
       the borough police force.” Id. at 491. By contrast, the Court held that the
       immunity did not apply with respect to her statement that the chief was
       lying because there, the mayor “was no more than a private citizen seeking
       to enforce her private criminal complaint.” Id. at 492 (emphasis in
       original). Although not binding on us, the reasoning of McKibben
       persuasively illustrates the boundary between those actions that are taken in
       the course of an official’s duties and those that are not.

and;

        On page 18, the first paragraph, “3d Cir.” shall be added within the parenthesis the
citation to Lohman v. Duryea.

An Amended Precedential Opinion is being filed concurrently with this Order. The
amendment does not substantively change the Opinion, therefore, the filing date of the
Opinion will not be modified nor the judgment.

                                          By the Court

                                           /s/ Kent A. Jordan
                                          Circuit Judge

DATED: January 25, 2011




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