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decided: November 14, 1967.


Appeals from orders of Court of Common Pleas of Allegheny County, Jan. T., 1966, Nos. 4027 and 4028, in cases of Jack J. Greenberg v. Aetna Insurance Company; Same v. United States Fidelity and Guaranty Company.


Melvin Schwartz, with him Cooper, Goodman & Schwartz, for appellant.

Loyal H. Gregg, with him White, Jones and Gregg, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts concurs in the result. Dissenting Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen.

Author: Bell

[ 427 Pa. Page 513]

Plaintiff appeals from the Orders of the Court of Common Pleas which sustained defendants' preliminary objections and dismissed his complaints in trespass for libel, because they showed on their face that plaintiff had no cause of action.

Greenberg was indicted for arson, burning to defraud an insurance company, and conspiracy to commit arson. He was tried on these indictments and found not guilty.

Thereafter Greenberg filed a complaint in assumpsit in the Court of Common Pleas against Aetna Insurance Company and another against United States Fidelity and Guaranty Company, the defendants herein, to recover for money allegedly due him under fire insurance policies issued by each of them. Each defendant filed an answer denying liability because the fire which damaged plaintiff's property was the result of plaintiff's incendiarism.

Greenberg thereupon filed the present libel suits against each defendant, alleging that by its answer in the assumpsit suit defendant had falsely and maliciously libeled him by charging him with committing the crimes of arson, burning to defraud an insurance company, and conspiracy to commit arson, after Greenberg

[ 427 Pa. Page 514]

    had been tried and acquitted of these crimes. Each of the defendants thereupon filed preliminary objections in the nature of a demurrer to plaintiff's complaint, on the ground that "the complaint fails to state a cause of action in that it is a claim for defamation allegedly contained in a pleading filed with this Court." In other words, defendants contend that they had an absolute privilege to raise or plead incendiarism by plaintiff as a defense in a suit by plaintiff to recover damages on his fire insurance policies and this defense can be raised by preliminary objections. Plaintiff thereupon filed preliminary objections*fn* to defendants' preliminary objections in the nature of a motion to strike, (1) alleging that defendants were precluded from raising this defense because of plaintiff's acquittal of the crime of incendiarism, and (2) the defense of absolute (or limited) privilege cannot be raised by preliminary objections but must, under Rule 1045(b) of the Pennsylvania Rules of Civil Procedure, be raised in the answer under "new matter." The lower Court, we repeat, sustained defendants' preliminary objections; overruled plaintiff's preliminary objections and dismissed plaintiff's complaints in trespass.

If, as here, defendants' allegedly defamatory averments -- which are contained in their answers to plaintiff's assumpsit suit to recover on his insurance policies -- were pertinent, what legal effect does that have on his present libel suits?

When alleged libelous or defamatory matters, or statements, or allegations and averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them. Moreover, if questioned or challenged by the opposite party, all

[ 427 Pa. Page 515]

    reasonable doubts (if any) should be resolved in favor of relevancy and pertinency and materiality.

We hold (1) that plaintiff's incendiarism was a relevant, material and (if established, would be a) complete defense to his claim on a fire insurance policy, and (2) such an averment when contained in an answer to plaintiff's suit to recover on his fire insurance policies, is absolutely privileged and (3) even if made falsely or maliciously and without reasonable and probable cause, is an absolute bar to an action of libel based upon such averments. Kemper v. Fort, 219 Pa. 85, 67 Atl. 991; compare also, Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100; Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892; Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586.

[ 427 Pa. Page 516]

In Kemper v. Fort, 219 Pa., supra, the Court analyzed and reviewed at great length the authorities in this field and in an able Opinion pertinently said (pages 93-94): "'All charges, all allegations and averments contained in regular pleadings addressed to and filed in a court of competent jurisdiction, which are pertinent and material to the redress or relief sought, whether legally sufficient to obtain it or not, are absolutely privileged.*fn** However false and malicious, they are not libelous. This privilege rests on public policy, which allows all suitors . . . to secure access to the tribunals of justice with whatever complaint, true or false, real or fictitious, they choose to present, provided only that it be such as the court whose jurisdiction is involved has power to entertain and adjudicate. The alleged libelous matter in the present case, being contained in a bill praying for an injunction, was relevant and material; consequently, absolutely privileged.' . . . the authorities, though differing as to when immunity is absolute, are uniform that Page 516} when alleged libelous matter in pleadings is relevant and pertinent, there is no liability for uttering it. Public policy requires this, even if at times the privilege of immunity for false and malicious averments in pleadings is abused. Justice can be administered only when parties are permitted to plead freely in the courts and to aver whatever ought to be known without fear of consequences, if a material and pertinent averment should not be sustained. Wrong may at times be done to a defamed party, but it is damnum absque injuria. The inconvenience of the individual must yield to a rule for the good of the general public.

"Where the question of the relevancy and pertinency of matters alleged in pleadings is to be inquired into, all doubt should be resolved in ...

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