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.
OPINION BY MR. JUSTICE COHEN
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,
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 ...