No. 305 Harrisburg, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of York County, No. 81-S-4915.
Marc Roberts, York, for appellant.
Patricia Ann Butler, York, for appellees.
Wickersham, Wieand and Cercone, JJ.
[ 327 Pa. Super. Page 421]
Allen H. Smith, an attorney, filed a civil action against Rees Griffiths, the lawyer representing Smith's wife in a marital action. He averred in his complaint (1) that he had been defamed by his wife's lawyer and (2) that the lawyer had caused injury to him by giving Smith's wife incorrect legal advice. The trial court sustained preliminary objections in the nature of a demurrer and entered judgment in favor of Griffiths. An appeal from this judgment requires that we examine and define (1) the nature of the privilege which protects defamatory communications made by an
[ 327 Pa. Super. Page 422]
attorney on behalf of a client and (2) the duty, if any, owed by a lawyer to an adverse party to a dispute.*fn1
Appellant's complaint contains three counts. The first two counts allege causes of action respectively for libel and slander. The first count complains of two letters written by Griffiths to Judson E. Ruch, Esquire, a master appointed by the court to hear Mrs. Smith's petition for alimony, alimony pendente lite, counsel fees and costs. The representations in these letters were that Smith had not paid counsel fees and expenses as previously agreed; had leased the marital domicile and appropriated the rentals to his own use; and had failed to pay real estate taxes on the marital property, as a result of which the property was to be listed for tax sale. The second count in the complaint avers that Griffiths slandered Smith by oral statements to the effect that Mrs. Smith was distraught because appellant had failed to pay a support order previously entered by the Honorable James E. Buckingham. These statements were allegedly made in the judicial chambers of Judge Buckingham during an unrelated pre-trial conference attended by Smith and Griffiths. Preliminary objections filed to the complaint contended that the communications were privileged and, therefore, not actionable.
[ 327 Pa. Super. Page 423]
"[W]hen considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom . . . . [P]reliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt . . . . [I]t must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff." DeSantis v. Swigart, 296 Pa. Super. 283, 286, 442 A.2d 770, 771 (1982), quoting Donnelly v. DeBourke, 280 Pa. Super. 486, 489-490, 421 A.2d 826, 828 (1980) (overruled on other grounds). Accord: Stein v. Page 423} Richardson, 302 Pa. Super. 124, 136, 448 A.2d 558, 564 (1982); Duffee v. Judson, 251 Pa. Super. 406, 409, 380 A.2d 843, 844-845 (1977).
The law is now well established that "[a]ll communications pertinent to any stage of a judicial proceeding are accorded an absolute privilege which cannot be destroyed by abuse." Binder v. Triangle Publications, Inc., 442 Pa. 319, 323, 275 A.2d 53, 56 (1971). Accord: Greenberg v. Aetna Insurance Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967); Barto v. Felix, 250 Pa. Super. 262, 266, 378 A.2d 927, 929 (1977). This privilege exists in favor of counsel so that he will be permitted to represent his client's interests to the fullest extent. Binder v. Triangle Publications, Inc., supra 442 Pa. at 324, 275 A.2d at 56. All persons involved in a judicial proceeding are encouraged by the privilege to speak frankly and argue freely without danger or concern that they may be required to defend their statements in a later defamation action. See: Yearsley v. Franklin Lamp Manufacturing Co., 97 Pa. Super. 538, 540 (1929); Barto v. Felix, supra 250 Pa. Super. at 278, 378 A.2d at 935 (Spaeth, J. dissenting); Restatement (Second) of Torts § 586 (comment a). Although it is possible that "[w]rong may at times be done to a defamed party, . . . it is damnum absque injuria. The inconvenience of the individual must yield to a rule for the good of the general public." Yearsley v. Franklin Lamp Manufacturing Co., supra, quoting Kemper v. Fort, 219 Pa. 85, 94, 67 A. 991, 995 (1907). Whether a privilege exists is a question of law for the court. Montgomery v. Dennison, 363 Pa. 255, 265, 69 A.2d 520, 525 (1949); Rankin v. Phillippe, 206 Pa. Super. 27, 31, 211 A.2d 56, 58 (1965); Medico v. Time, Inc., 509 F.Supp. 268, 272 ...