No. 98 March Term 1978, Appeal from the Order of the Superior Court of Pennsylvania at No. 676 April Term, 1977, affirming the order of the Court of Common Pleas, Westmoreland County, Sitting en banc at No. 2633 of 1976.
Francis Ferri, in pro. per.
Ned Nakles Latrobe, George E. Schumacher, Federal Public Defenders, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., concurs in the result. Roberts, J., filed a dissenting opinion in which Larsen, J., joins.
This is an appeal from an order of the Superior Court affirming an order of the Westmoreland County Court of Common Pleas sitting en banc which had sustained appellee's preliminary objections in the nature of a demurrer and dismissed the complaint.*fn1 Appellant filed this case originally in Union County, and after an objection to venue was interposed by the appellee the matter was transferred to Westmoreland County under Pa.R.C.P. 1006(e). Appellant's complaint sought monetary damages against appellee, an attorney who had been assigned pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A (1978), to represent appellant in a criminal prosecution in the federal district court. In that trial, appellant was convicted by a jury and received a sentence of thirty years. In the complaint filed in the malpractice action appellant set forth numerous acts of omission during the pre-trial, trial and post-trial periods of representation.
The question presented in this appeal is whether a lawyer appointed under the Federal Criminal Justice Act, 18 U.S.C. § 3006A (1978), to represent an indigent defendant in a federal criminal case is immune from tort liability based upon the alleged failure on the part of that attorney to raise the statute of limitations which allegedly would have barred prosecution for some of the ancillary counts of the indictments.*fn2 Appellant argues that any immunity that may be
enjoyed by one standing in the position of appellee does not insulate against liability for gross negligence. He further argues that the assertion of a plea in bar based upon the expiration of the statute of limitation does not entail the type of exercise of judgment which requires immunization. Thus we must determine whether there is an immunity that protects appellee in this situation and the extent of that protection, if it exists.
Since we are here concerned with an asserted immunity protecting a participant in a federal legal proceeding, we are required to look to the federal law to determine whether it exists and if it does, its nature and scope. Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). See also Carter v. Carlson, 144 U.S.App.D.C. 388, 391-392, 447 F.2d 358, 361-62 n.5 (1971); Chandler v. O'Bryan, 445 F.2d 1045, 1055 (10th Cir. 1971); Garner v. Rathburn, 346 F.2d 55, 56 (10th Cir. 1965). As noted by the United States Supreme Court in Howard v. Lyons, supra, the very nature of a ruling of privilege requires reference to the law of the sovereign creating it for a determination of its nature and scope.
"The authority of a federal officer to act derives from federal sources, and the rule which recognizes a privilege under appropriate circumstances as to statements made in the course of duty is one designed to promote the effective functioning of the Federal Government. No subject could be one of more peculiarly federal concern, and it would deny the very considerations which give the rule of privilege its being to leave determination of its extent to the vagaries of the laws of the several States. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. We hold that the validity of petitioner's claim
of absolute privilege must be judged by federal standards, to be formulated by the courts in the absence of legislative action by Congress." Id. 360 U.S. at 597, 79 S.Ct. at 1334.
The doctrine of common law judicial immunity was first adopted by the United States Supreme Court in the cases of Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L.Ed. 285 (1868), and Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871). In Randall, supra, an action was brought by a plaintiff who was formerly a member of the bar of the Commonwealth of Massachusetts against one of the judges of the court of that State for an alleged wrongful removal of his name from the rolls of attorneys eligible to practice in that ...