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decided: October 6, 1977.


No. 126 October Term, 1977, Appeal from the Order entered September 15, 1976, by the Court of Common Pleas of Lycoming County, at No. 76-1302., Civil Action, Law.


Gary M. Lightman, Harrisburg, for plaintiffs-appellants.

Peter T. Campana, with him C. Edward S. Mitchell, Williamsport, for defendant-appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Jacobs, J., joins. Hoffman, J., joins Part I of the dissenting opinion by Spaeth, J.

Author: Price

[ 250 Pa. Super. Page 265]

This case is on appeal from the lower court's order sustaining appellee's preliminary objections in the nature of a demurrer to appellants' complaint. For purposes of appellate review, we must regard the allegations in appellants' complaint as true and accord them all the inferences reasonably deducible therefrom. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973).

On March 1, 1974, Kim Lee Hubbard was found guilty by a jury of the murder of a twelve year old girl.*fn1 His privately retained counsel thereafter filed post-trial motions but withdrew from the case before perfecting an appeal. Defendant-appellee John A. Felix, a member of the public defender's office, was Hubbard's appellate counsel. After filing his appellate brief for Hubbard, appellee called a press conference at which he related the contents of the brief. The brief, and thus appellee's remarks at the press conference, contained defamatory material about appellants, who were state police officers involved in the investigation of the murder. The substance of appellee's remarks were published in at least two Lycoming County newspapers. As a

[ 250 Pa. Super. Page 266]

    result, appellants suffered grievous harm to their reputations and interference with the proper performance of their occupations. Appellants' complaint in trespass requested damages in excess of ten thousand dollars for each officer.

The lower court found that appellee was a "high public official" entitled to absolute immunity for defamatory utterances made in his official capacity. Furthermore, the court found that the remarks in this case were closely related to appellee's official duties and therefore were entitled to protection. Finally, the court held that appellee was absolutely privileged to repeat matters which were of public record.

Preparatory to analyzing the factual-legal particulars of this case, it will be useful to consider some of the fundamental precepts relating to immunity from civil liability for defamation.

Judicial immunity is granted to judges, lawyers, witnesses, and all others directly involved in a judicial proceeding to make comments relevant to the proceeding. The immunity is absolute*fn2 with respect to defamatory statements made in the pleadings or in the courtroom. Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968). The immunity applies only to relevant statements made in an official capacity. F. Harper and F. James, The Law of Torts § 5.22 (1956).

A second, related type of immunity is that accorded to high public officials. Public interest demands that high public officials be absolutely immune from liability for defamatory statements made in the course of their official duties. A liberal construction is applied to determine whether an action falls within the official's duties. Thus, in

[ 250 Pa. Super. Page 267]

    public defender in this case, for the remarks made by him at the press conference were not made at a judicial proceeding. They did not fall within the sphere of activities which judicial immunity was designed to protect. Restatement (Second) of Torts § 586 comment c. (1977); Harper and James, supra, § 5.22. Cf. Doe v. McMillan, 412 U.S. 306, 314 n. 8, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) ("The republication of a libel, in circumstances where the initial publication is privileged, is generally unprotected.").*fn3

This does not mean that appellee's remarks are entitled to no protection. A public defender necessarily enjoys the same qualified immunity that any other attorney (or any other individual) is accorded to publish information relative to a judicial proceeding. Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971); Restatement (Second) of Torts § 611 (1977); Harper & James, supra, § 5.24. However, judicial immunity does not extend to remarks made outside the judicial sphere.

We also hold that a public defender is not entitled to the absolute immunity of a high public official. In McCormick v. Specter, 220 Pa. Super. 19, 275 A.2d 688 (1971), this court considered the liability of a district attorney for defamatory statements made to the press. In that case, the court concluded that the "press conference was a proper undertaking of that office on the basis that the reasonable performance of the District Attorney's office warrants his informing the public of matters pending in that office. However, it must be emphasized that it is the public interest -- not that of the official involved -- which provides the rationale for the immunity." 220 Pa. Super. at 21-22, 275 A.2d at 689.

Appellee contends that a public prosecutor and a public defender enjoy identical status, citing Brown v. Joseph,

[ 250 Pa. Super. Page 269463]

F.2d 1046 (3d Cir. 1972). This argument is not without logical or legal support. Brown v. Joseph, supra, however, is distinguishable. In that case, the issue was whether a public defender is entitled to immunity in a suit brought by a former client under 42 U.S.C. § 1983. The Third Circuit Court of Appeals discussed several policy factors favoring immunity in that case which are inapplicable in the case before us.

To the extent that Brown v. Joseph is indistinguishable from this case, we disagree with it. The commentary to § 1.1 of the ABA Project on Standards For Criminal Justice, The Prosecution Function (Approved Draft, 1971), describes the prosecutor as an

"administrator of justice. He is an administrator in the sense that he acts as a decision maker on a broad policy level and over a wide range of cases as director of public prosecutions. The prosecutor is in the best position to observe the work of the police in the investigation of crime and in the enforcement of the law. He has large responsibility in the decision whether to bring charges and, if so, what charges to bring against the accused, and the decision whether to prosecute or to dismiss charges, or to take other appropriate actions in the interest of justice. Since his is a large share of the responsibility for what cases are taken into ...

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