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BIGGANS v. FOGLIETTA. (05/02/61)

May 2, 1961

BIGGANS, APPELLANT,
v.
FOGLIETTA.



Appeal, No. 384, Jan. T., 1960, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1959, No. 3888, in case of Paul Biggans v. Thomas M. Foglietta. Order reversed.

COUNSEL

Walter Stein, with him Berger and Stein, for appellant.

George P. Williams, III, with him Schnader, Harrison, Segal & Lewis, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 403 Pa. Page 511]

OPINION BY MR. JUSTICE BOK.

This is an action in libel. The court below sustained preliminary objections and dismissed the complaint on the ground that the communication in question enjoyed absolute privilege. The plaintiff has appealed.

The amended complaint alleges that the plaintiff was a public officer, namely, Chairman of the Plumbing Advisory Committee of the Department of Licenses and Inspections of the City of Philadelphia; that the defendant falsely and maliciously wrote libellously to the Mayor of the City about the plaintiff; that the letter was "first published through the Philadelphia headquarters of the Republican Party"; and that he has been injured in his business, his reputation, and his peace of mind. The amended complaint quoted the letter.

The preliminary objections reveal that the original complaint attached a copy of the letter, complete with letterhead showing defendant to be a councilman-at-large of the City Council and his office at Room 600 City Hall, and that the letterhead was missing from the amended complaint.

The issue of whether the letter is libellous is not before us. Both sides assume for argument that it is and present us only with the issue of privilege and its abuse.

Libel and slander go unscathed when privileged, on the theory that it is better that an individual be harmed than that the public go uninformed about the public business: Montgomery v. Philadelphia, 392 Pa. 178 (1958), 140 A.2d 100, esp. footnote at 184 quoting Chief Judge LEARNED HAND; Montgomery v. Dennison, 363 Pa. 255 (1949), 69 A.2d 520. In order to be privileged, "A communication... must be made upon a proper occasion, from a proper motive and must be based upon a reasonable and probable cause." Briggs

[ 403 Pa. Page 512]

In Pennsylvania, in Montgomery v. Philadelphia, 392 Pa. 178 (1958), 140 A.2d 100, we said: "However, even though a public officer, in the first instance, establishes the existence of a privileged occasion for a defamatory publication, he may nevertheless be subject to liability if a plaintiff meets the burden of persuading the factfinder 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.... The question of ...


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