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March 24, 1958


Appeals, Nos. 329, 330, 331, Jan. T., 1957, from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1956, No. 5747, in case of Joseph W. Montgomery, trading as Montgomery Construction Company v. City of Philadelphia et al. Judgment affirmed; reargument refused April 17, 1958.


Robert H. Arronson, with him Herbert H. Hadra and Maurice Freedman, for appellant.

Thomas A. Masterson, Deputy City Solicitor, with him Isador Kranzel, Assistant City Solicitor, and David Berger, City Solicitor, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 392 Pa. Page 179]


On this appeal we are called upon to review the action of the trial court in dismissing on preliminary objections plaintiff's complaint brought against the individual defendants, (the Deputy Commissioner of Public Property of Philadelphia, and the City Architect), and against the City of Philadelphia on the theory of respondeat superior, for defamatory statements allegedly made by these officials in the course of their duties.

Plaintiff, Joseph W. Montgomery, trading as Montgomery Construction Company, a building contractor, undertook to construct a police station and a combined police and fire station for the city. It is alleged that on January 21, 1957, the individual defendants in response to a reporter's questions concerning the city's delay in utilizing these stations stated that the buildings had been faultily constructed and were not erected in conformity with the building plans and specifications. The defendants further stated that as a result of their unsatisfactory experience with the plaintiff,

[ 392 Pa. Page 180]

    they would not qualify him to receive future city contracts. Their remarks were subsequently published in a local newspaper. The plaintiff thereupon brought suit alleging that the individual defendants, acting on their own behalf and on behalf of the defendant city, within the scope of their authority and during the course of their employment, had maliciously, wilfully and falsely defamed plaintiff in his personal and business reputation.*fn1

The city filed preliminary objections asserting immunity to suit because the acts of its agents complained of were done in the performance of a governmental function. The individual defendants also filed preliminary objections contending that as governmental officers acting within the scope of their official duties, they were absolutely privileged in making the allegedly defamatory statements. The objections of all defendants were sustained by the court en banc, and the complaint dismissed for failure to state a cause of action.

On this appeal assuming that the statements complained of were defamatory, that they were made by the individual defendants, and that the defendants were responsible for their publication, we proceed to

[ 392 Pa. Page 181]

    consider the defense of absolute privilege raised by the two city officers.

The defense of privilege in cases of defamation "rests upon the ... idea, that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation." Prosser, Torts 607 (2nd ed. 1955). Thus, the law recognizes that it is essential that true information shall be given whenever it is reasonably necessary for the protection of certain interests of the public. "In order that such information may be freely given, it is necessary to afford protection against liability for misinformation given in an honest and reasonable effort to protect or advance the interest in question. Were such protection not given, true information which should be given or received would not be communicated through fear of the persons capable of giving it that they would be held liable in an action of defamation unless they could meet the heavy burden of satisfying a jury that their statements were true." 3 Restatement, Torts, Ch. 25, Topic 3, Scope Note (1938). When for the public good and interest of society a communication should be published it is said to be made on an "occasion of privilege" and the defamatory statement is itself "qualifiedly" or "conditionally" privileged. See 3 Restatement, Torts § 593 (1938); 53 C.J.S., Libel and Slander § 89 (1948). So, communications made by any public officer in the performance of his official duties are held to be made on an occasion of privilege. 53 C.J.S., Libel and Slander § 113 (1948). See also Matson v. Margiotti, 371 Pa. 188, 193-194, 88 A.2d 892 (1952); Barry v. McCollom, 81 Conn. 293, 70 Atl. 1035 (1908); Peterson v. Steenerson, 113 Minn. 87, 129 N.W. 147 (1910); 3 Restatement, Torts § 598

[ 392 Pa. Page 182]

(1938). However, even though a public officer, in the first instance, establishes the existence of a privileged occasion for a defamatory publication,*fn2 he may nevertheless be subject to liability if a plaintiff meets the burden*fn3 of persuading the fact-finder*fn4 that the occasion was abused by showing that the defamatory communication was made for an improper motive, in an improper manner, or was not based upon reasonable or probable cause.*fn5

To meet this contingency, the defense of absolute privilege, or complete immunity from liability for the publication of defamation was created.

"Absolute privilege, as its name implies, is unlimited, and exempts a high public official from all civil suits for damages arising out of false defamatory statements

[ 392 Pa. Page 183]

    and even from 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 his authority, or as it [is] sometimes expressed, within his jurisdiction. ..." Matson v. Margiotti, supra, 371 Pa. at 193-194.

Whereas qualified privilege could be successful only after a full trial, thus placing a government official at the whims and mercy of a jury, the purpose of absolute immunity is to foreclose the possibility of suit. "... [Absolute] immunity is designed to protect the official from the suit itself, from the expense, publicity, and danger of defending the good faith of his public actions before a jury. And yet, beyond this lies a deeper purpose, the protection of society's interest in the unfettered discharge of public business and in full public knowledge of the facts and conduct of such business. Absolute immunity is thus a means of removing any inhibition which might deprive the public of the best service of its officers and agencies." Note, 20 U. of Chi. L. Rev. 677, 678 (1953).*fn6

[ 392 Pa. Page 184]

On the other hand, there are valid arguments against permitting public officials immunity from liability. The merited sterling reputations of innocent persons may be destroyed by unscrupulous public officials who, taking advantage of their positions and the access to the press obtained thereby, widely publish reckless or knowingly false defamation. The need in such cases of compensation for special damages suffered as well as vindication for the harm done to a good name is undeniable. See Matson v. Margiotti, supra, 371 Pa. at 202-203; Morris, Torts 297-298 (1953).*fn7

[ 392 Pa. Page 185]

In striking a balance between these two opposing policies the courts have declared that the public interest does not demand that all public officials be entitled to absolute privilege, but only that "high ranking officers" be so protected. See Matson v. Margiotti, supra, 371 Pa. at 194, 196.

In Spalding v. Vilas, 161 U.S. 483 (1896), the United States Supreme Court held that the doctrine of absolute privilege extended to officers of cabinet rank as well as to the president. Since that decision the lower federal courts have included many inferior executive positions within the protection of the principle,*fn8

[ 392 Pa. Page 186]

    although the state courts have been more selective.*fn9

It has been suggested that the determination of whether a particular public officer is protected by absolute privilege should depend upon the nature of his duties, the importance of his office, and particularly whether or not he has policy-making functions. Prosser, Torts supra, 782, 784. See also Barr v. Matteo, 244 F.2d 767 (D.C. Cir.), remanded, 2 L.Ed.2nd 179 (1957); Colpoys v. Gates, 118 F.2d 16 (D.C. Cir. 1941); 3 Restatement, Torts § 591 (1938). In the present case the deputy commissioner of public property is vested with most of the powers of the commissioner including the overseeing of the performance of

[ 392 Pa. Page 187]

    public contracts,*fn10 and the city architect has the duty of designing and supervising in conjunction with the city engineer, the erection of all new buildings including the police and fire stations that comprise the instant problem. We need not here determine the line of demarcation, if any there be, which separates offices which are protected by absolute privilege from those which are not. From the record before us, we are satisfied that judged by any of these criteria the positions held by the individual defendants are such that the public interest requires the grant of absolute privileges. Both individual defendants had policy-making functions as well as the duty to act according to the directives handed down to them by other city officials. Plaintiff concedes, and in fact alleges in his complaint, that defendants' duties included informing the public through communications to the press as to the progress of city works.*fn11 On this review we are bound to accept his allegations as true. A refusal to grant the defendants immunity for defamation published in the course of their duties would impair the proper performance of this function.

The public interest demands that these city servants, the individual defendants, be encouraged to inform the community of the progress or the lack of progress of important public works paid for by the taxpayers. Further, the public has a legitimate concern with the reasons, if any, for apparently unreasonable delays in the performance of city contracts.

[ 392 Pa. Page 188]

For these reasons we hold that the individual defendants are absolutely privileged in making defamatory communications to the press which are within the scope of their duties and authority. It follows that the city cannot be held liable therefor on the theory of respondeat superior. See Restatement, Agency §§ 217, 247 (1933). Cf. Koontz v. Messer, 320 Pa. 487, 181 Atl. 792 (1935).

The action of the court below in dismissing the complaint on preliminary objection will be affirmed.

Mr. Justice MUSMANNO concurs in the result.


Judgment affirmed.

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