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SLATER v. MARSHALL

August 18, 1995

LINDA SLATER
v.
RICHARD E. MARSHALL and MONTGOMERY COUNTY COMMUNITY COLLEGE



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 AUGUST 18, 1995

 Plaintiff, Linda Slater, has filed a Motion to Dismiss Defendant Richard E. Marshall's Counterclaim against her for defamation. Plaintiff's Complaint alleges that Defendant Marshall is a professor at Montgomery County Community College (MCCC) *fn1" who sexually harassed and stalked Plaintiff while she was his student. Defendant's Counterclaim alleges that Plaintiff defamed him when she reported the alleged stalking to another teacher at MCCC. *fn2"

 In considering a Rule 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). The Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

 Analysis

 The Counterclaim alleges that Plaintiff told Holly Cairns, a part-time faculty member of MCCC, that Defendant had stalked Plaintiff. Plaintiff argues that this defamation claim should be dismissed because any statements she made were absolutely privileged under the judicial proceedings privilege doctrine. *fn3"

 The Pennsylvania Supreme Court, in Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986) has set the parameters of the judicial proceedings privilege. The Supreme Court held that this absolute privilege shields any and all communications made in connection with a judicial proceeding. Id. at 217, 507 A.2d at 353. This privilege protects statements in open court, as well as pleadings, preliminary conferences, correspondence between counsel in furtherance of a client's interest and pre-trial communications between counsel and witness. Pawloski, 403 Pa. Super. at 81, 588 A.2d at 41 (citing cases). The privilege is not limited to communications made only after the institution of a suit. Rather, it also protects "defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding." Id. at 83, 588 A.2d at 42 (quoting Restatement (Second) of Torts § 587).

 Plaintiff asserts that her statements were in the course of a judicial proceeding because her Complaint was filed on October 20, 1994, and the Counterclaim alleges that her statements were made in "late October, 1994." She argues that as a result, "clearly any statements made by [Plaintiff] in 'late October' were in the context of being in the course of or pertinent to any stage of judicial proceeding." Pl.'s Brief at 4. This argument appears to assert that if a judicial proceeding is contemplated, any communications made to any person that relate in any way to the subject matter of the judicial proceeding are absolutely privileged. This argument is not an accurate reading of Pennsylvania's law.

 In Post, the Supreme Court expressly limited the absolute privilege's scope and ruled that a defamatory letter was not absolutely privileged when it was copied to a judge, the Supreme Court's Disciplinary Board and an alleged client of the person the letter defamed. The letter was from one attorney to another, and criticized the other attorney for his alleged unethical behavior before a Pennsylvania court. The defendant argued that because the letter concerned the plaintiff's behavior in a judicial proceeding that the letter was therefore absolutely privileged. The defendant also argued that the letter was intended to institute disciplinary proceedings, and so was absolutely privileged under the Restatement's § 587.

 Here, Plaintiff allegedly told Defendant's co-worker that Defendant had stalked Plaintiff. The Counterclaim does not allege that Ms. Cairns was an appropriate person to whom a student would report such a matter. Nor does it allege that Plaintiff spoke to Ms. Cairns in the regular course of preparation of this lawsuit. The Counterclaim, accordingly, pleads no facts to indicate that the judicial proceedings ...


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