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decided: January 24, 1979.


No. 99 March Term, 1978, Appeal from the order of the Superior Court at No. 678 April Term, 1977, affirming the order of the Court of Common Pleas, Allegheny County at No. GD 76-20026 Civil Division.


Francis Ferri, in pro. per.

Herman Kimpel, Dickie, McCamey & Chilcote, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, J., and Pomeroy, former J., did not participate in the decision of this case. Roberts, J., filed a dissenting opinion in this case, joined by Larsen, J.

Author: Nix

[ 483 Pa. Page 328]


This is an appeal from a per curiam affirmance by the Superior Court of an order of the Court of Common Pleas of Allegheny County sustaining the preliminary objections of appellee and dismissing appellant's complaint with prejudice. The appellee had been appointed under the Criminal Justice Act, 18 U.S.C. § 3006A, et seq., to represent the appellant in connection with a federal grand jury investigation. Appellant avers that Dominick Rossetti, Esquire, appellee, lost a written agreement under which federal prosecutors agreed to confer immunity from prosecution on appellant, which immunity would have precluded a prosecution resulting in his conviction on a matter in federal court.*fn1 The order of

[ 483 Pa. Page 329]

    the court en banc dismissing the complaint stated as the reason for its action that due to appellee's immunity appellant had failed to state a cause of action. The Superior Court affirmed per curiam. This Court permitted review to consider the question of the immunity of defense counsel who had been assigned to represent a defendant in a federal criminal prosecution pursuant to the Criminal Justice Act.

In our recent opinion in Ferri v. Ackerman, 483 Pa. 90, 394 A.2d 553 (1978) we held that defense attorneys appointed pursuant to the Criminal Justice Act enjoyed an absolute immunity as to tort actions in the nature of malpractice, instituted in state courts. The unique issue presented by the instant appeal is whether the alleged negligent loss of a client's papers entrusted to his counsel is included within that immunity. Counsel has not offered nor has our research revealed a case in point; thus we must look to the rationale supporting the doctrine of immunity to ascertain whether it was intended to insulate the attorney from liability under such circumstances.

The immunity conferred upon a defense counsel appointed under the Criminal Justice Act, in a criminal federal trial is an extension of common law judicial immunity. Ferri v. Ackerman, supra. The motivating force supporting the concept of judicial immunity is the recognition of the necessity of preserving an independent judiciary, which will not be deterred by the fear of vexatious suits and personal liability, together with the manifest unfairness of exposing a judicial officer to the dilemma of being required to render judgment and at the same time holding him responsible according to the judgment of others. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872).*fn2 The United States Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) articulated the

[ 483 Pa. Page 330]

    reasons for extending this immunity to all of the participants in the trial, as follows:

The cluster of immunities protecting the various participants in judge-supervised trials stems from the characteristics of the judicial process rather than its location. As the Bradley Court suggested, 13 Wall. (80 U.S.), at 348-49, 20 L.Ed. 646, controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus. See Pierson v. Ray, supra, 386 U.S. at 554, 87 S.Ct. 1213, 18 L.Ed.2d 288. Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation. Id. at 2914. (emphasis in original).

Absolute immunity may be invoked merely by showing that the official was acting within the scope of his authority. Imbler v. Pachtman, 424 U.S. 409, 421-424, 96 S.Ct. 984, 990, 47 L.Ed.2d 128, 138-140 (1976) (discussing the common law immunity of a prosecutor). See also Sullens v. Carroll, 446 F.2d 1392 (5th Cir. 1971); Jones v. Warlick, 364 F.2d 828 (4th Cir. 1966) (absolute immunity of federally appointed criminal defense attorneys). It is significant that although the prosecutor is for many purposes considered an executive official,*fn3 the federal courts have accorded the office the judicial type immunity. See e. g., Yaselli v. Goff, 12 F.2d 396, 406 (2d Cir. 1926), aff'd per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927). This bifurcated treatment provides further evidence of the strong federal view that the participants in the judicial process should be absolutely immune from common law tort actions.

Another significant indication of the strength of the federal view that participants in legal proceedings should be

[ 483 Pa. Page 331]

    insulated from suit for their actions in connection therewith was revealed by the adoption of the common law theory of absolute immunity in the statutory causes of action under section 1983 of the Civil Rights Acts, 42 U.S.C. § 1983 (1970). Section 1983 created a federal damage action against anyone who acts under color of state law to deprive a person of his civil rights. The language of section 1983 does not mention immunity; thus the statute was susceptible to an interpretation which would not recognize the common law theory of immunity. See e. g., Picking v. Penna. R.R., 151 F.2d 240, 250-51 (3d Cir. 1945), overruled on this point by Bauers v. Hersel, 361 F.2d 581, 584 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967). Nevertheless, the federal system did extend absolute immunity in damage suits brought under section 1983 to judges, Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and to prosecutors, Imbler v. Pachtman, supra.*fn4

Appellant here is urging in essence that assigned defense counsel's immunity should not be absolute but rather qualified. His argument, that counsel's care of his client's papers entrusted to him during the period of representation be considered as an administrative responsibility for which counsel could be subject to a suit in damages, is an invitation to employ a functional approach in applying immunity for defense counsel. In view of the strong history in the federal system of affording the principal participants in a legal proceeding (i. e. judge, prosecutor, appointed defense counsel) with an absolute immunity in common law actions for damages any suggested qualification must be rejected.*fn5

[ 483 Pa. Page 332]

For the foregoing reasons we are in agreement with the court en banc 's conclusion that appellee herein was immune and that the complaint should have been dismissed.

Order of the Superior Court affirming the court en banc affirmed.

ROBERTS, Justice, dissenting.

Just two months ago a majority of this Court decided that an attorney appointed to represent an indigent defendant in a federal criminal case is immune as a matter of federal law from all malpractice liability. Ferri v. Ackerman, 483 Pa. 90, 394 A.2d 553 (1978), cert. granted. I dissented from that decision on two grounds: (1) federal immunity does not insulate appointed counsel from his client's malpractice suits; and (2) that a decision rendering a federal appointed counsel immune as a federal official could result in discrimination against indigent defendants. See Ferri v. Ackerman, supra (Roberts, J., dissenting). The majority's decision today holds appointed counsel in a federal criminal case immune from liability for allegedly losing a written agreement awarding his client complete protection from prosecution. I must again dissent.

It is conceivable that the majority, although it does not expressly discuss the question, would extend immunity to all federal defense counsel, appointed or not, thereby equalizing the effects upon indigent and non-indigent defendants.*fn1

[ 483 Pa. Page 333]

But this possible extension would not correct the majority's error in applying federal immunity to appointed defense counsel in the first place.

At the very core of the majority's reasoning is the view that the United States Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), impliedly extended absolute immunity to "all participants" in a federal criminal trial. The majority quotes references in Butz to "the various participants in judge-supervised trials" and to "advocates" in defining federal immunity. Such references do not, however, provide support for the view that an appointed defense attorney needs absolute protection from his own client's malpractice suits in order adequately to defend that client.

An appointed federal defense attorney does not serve as a federal official. His duties stem directly and solely from his professional obligations to act vigorously and capably in the defense of his client and not from any governmental responsibility. See Thomas v. Howard, 455 F.2d 228, 229 (3d Cir. 1972). Federal cases holding that state appointed defense counsel do not act under color of state law, e. g., Barnes v. Dorsey, 480 F.2d 1057, 1060-61 (8th Cir. 1973); Thomas v. Howard, supra, clearly instruct that federal appointed defense counsel do not serve a federal governmental role. In the absence of any legitimate official status the absolute immunity which the majority bestows is entirely without justification, for the rationale of immunity is to encourage those with some official governmental role to make discretionary judgments without fear of reprisal litigation. See Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). This theory forms the basis of decisions granting immunity not only to judges, but to prosecutors and grand jurors as well. As the United States Supreme Court observed in Imbler v. Pactman, 424 U.S. 409, 423 n.20, 96 S.Ct. 984, 991 n.20, 47 L.Ed.2d 128 (1976):

"It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors

[ 483 Pa. Page 334]

    and prosecutors being referred to as 'quasi-judicial' officers, and their immunities being termed 'quasi-judicial' as well."

The class of beneficiaries of such immunity is thus narrowly circumscribed.

It is of course also true that defense counsel and witnesses receive protection from defamation actions for their statements in connection with a judicial proceeding. This privilege, as Dean Prosser points out, "covers anything that may be said in relation to the matter at issue, whether it be in the pleadings, in affidavits, or in open court." W. Prosser, Handbook of the Law of Torts § 114, pp. 777-78 (4th ed. 1971). This traditional common law immunity explains fully the United States Supreme Court's reference in Butz to the immunity of advocates and witnesses. Nothing in Butz suggests that the Court was impliedly acknowledging either under federal or common law that an appointed defense attorney is immune from suits brought by his own client for alleged acts of malpractice.*fn2

The majority's analysis thus rests upon the mistaken assumption that the role of an appointed defense counsel is essentially like that of a judge, prosecutor, and grand juror and upon the erroneous view that the Supreme Court in referring to the immunity of advocates and witnesses was

[ 483 Pa. Page 335]

    considering more than the traditional privilege from defamation actions. I cannot join in the majority's analysis.

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