No. 2527 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, No. 1066.
Morris Passon, Philadelphia, for appellant.
Mark E. Kogan, Philadelphia, for appellee.
Spaeth, Hester and Cavanaugh, JJ. Spaeth, J. concurs in the result.
[ 277 Pa. Super. Page 499]
Presently before the Court is appellant, Morris Passon's appeal from the lower court's Order under date of September 12, 1978 sustaining appellee Ethel Kravitz's preliminary objections in the nature of a demurrer to appellant's amended complaint and dismissing same.
The lengthy amended complaint contains four (4) counts and forty-nine well drafted paragraphs alleging causes of action sounding in libel, conspiracy to libel, malicious use and abuse of process, and invasion of privacy; all arising out of a series of alleged libelous statements contained in a Petition for Writ of Habeas Corpus and in a brief in support thereof filed in the United States District Court for the Eastern District of Pennsylvania. This represents the latest effort by appellee to cast suspicion upon appellant and thereby create doubt as to the appellee's guilt for the murder of her (appellee's) husband which occurred in 1958 and for which she was convicted in 1960.*fn1
[ 277 Pa. Super. Page 500]
The gravaman of appellee's demurrer is the defense of absolute privilege uttered in and relevant to a judicial proceeding. The lower court agreed and sustained appellee's demurrer.
Appellant argues contrariwise that the libels complained of in the instant case are not protected by the doctrine of absolute privilege because: (a) same was lost through abuse; (b) appellee is collaterally estopped from asserting it because of a prior judgment in a civil litigation between the parties has established the falsity of those accusations*fn2 and; (c) the doctrine does not apply because the uttered libels were not relevant and pertinent to the Habeas Corpus proceeding in which they appear.
We have carefully reviewed the lower court record and briefs and conclude that the doctrine of absolute privilege is applicable and, therefore, affirm the lower court's order dismissing appellant's amended complaint.
However, in order to put the instant segment of this expansive controversy in proper prospective, a short review of this soap opera-like saga is appropriate.
Max Kravitz, husband of appellee Ethel Kravitz, was murdered on July 4, 1958. Appellant Morris Passon is an attorney and the brother-in-law of the decedent and appellee. On the day of the murder appellee was arrested, and on December 12, 1958 she was convicted of murder in the second degree. Her appeal was rejected by the Pennsylvania Supreme Court (400 Pa. 198, 161 A.2d 861). In 1962, she filed a Bill in ...