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.
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
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
reasons for extending this immunity to all of the participants in ...