Solano is protected from liability arising from Buschel's allegation of defamation. Accordingly, Defendant's Motion to Dismiss as to Count I will be granted.
The test for determining whether an absolute privilege applies is explained in Post v. Mendel, 510 Pa. 213, 221, 507 A.2d 351, 355 (1986) as follows: "the protected realm [of privilege] is composed only of the communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought." Although, as Post suggests, the privilege is not a "license for extrajudicial defamation," the privilege is available to communications "preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding." Id. at 222, 507 A.2d at 356 (quoting RESTATEMENT (SECOND) OF TORTS § 586 (1977)); see also Lerette v. Dean Witter Org., Inc., 60 Cal. App. 3d 573, 131 Cal. Rptr. 592 (Cal. Ct. App. 1976) (libel action barred where defamatory material complained of was contained in communication by an attorney written prior to a proposed judicial proceeding and bore a logical relationship to the judicial proceedings). Thus, the privilege is not limited to formal proceedings, but includes situations in which an attorney pursues a client's potential cause of action "under less formal circumstances." Smith v. Griffiths, 327 Pa. Super. 418, 427, 476 A.2d 22, 25 (1984).
This privilege attaches only if the attorney contemplates the judicial proceeding in good faith and seriously considers litigation. RESTATEMENT (SECOND) OF TORTS § 587 cmt. e (1977); Smith, 327 Pa. Super. at 427, 476 A.2d at 25; Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882 (Mass. 1976) (defamatory statement sent by an attorney absolutely privileged since litigation was seriously contemplated in good faith). Even if litigation is seriously considered, the attorney is permitted to send a defamatory communication only to persons with a direct interest in the proposed proceeding. Post, 510 Pa. at 223, 507 A.2d at 357. When applicable, this privilege protects attorneys from liability in an action for defamation "irrespective of his purpose in publishing the defamatory matter, his belief in its truth, or even his knowledge of its falsity." RESTATEMENT (SECOND) OF TORTS § 586 cmt. a (1977).
Solano contends that Philadelphia contemplated litigation against both Esquire and Buschel, but "elected to write rather than litigate." Def.'s Mot. to Dismiss at 7. Solano forwarded copies of letters that were both relevant and material to Philadelphia's contemplated litigation. The letters informed each potential defendant, Esquire and Buschel, of Philadelphia's belief in the existence of its oral contract with Buschel. They also served to inform each recipient of the factual basis upon which Philadelphia would rely to prove the oral contract with Buschel. Finally, Solano sent the letters only to the two editors of Esquire and Buschel personally. Each of these parties had a direct interest in the contemplated breach of contract proceeding.
Despite analyzing the facts in a light most favorable to the Buschel, it seems clear that Solano was merely pursuing the interests of his client, Philadelphia, within the bounds of the absolute privilege.
C. Count II: Invasion of Privacy -- False Light
In Count II, Buschel alleges that Solano invaded his privacy by publicizing false statements of alleged criminal and unethical conduct about Buschel. Because the absolute privilege discussed in Part II.B, supra, applies equally in causes of action for invasion of privacy, Count II will also be dismissed.
Pennsylvania courts have considered false light invasion of privacy as "closely allied to the law of defamation." Weinstein v. Bullick, 827 F. Supp. 1193, 1202 (E.D. Pa. 1993). As a result, "courts have applied to false light claims some of the same standards that govern defamation actions." Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1088 (E.D. Pa. 1980); RESTATEMENT (SECOND) OF TORTS § 652F (1977). Specifically, Pennsylvania has extended the absolute privilege to invasion of privacy actions. Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988), appeal denied, 521 Pa. 630, 558 A.2d 532 (1989). Therefore, Solano's privileged communications to the editors of Esquire and Buschel prior to contemplated judicial proceedings cannot serve as the basis of Buschel's invasion of privacy claim.
D. Count III: Tortious Interference with Existing Contractual Relationship
In Count III, Buschel alleges that Solano maliciously and intentionally interfered with the existing contractual relationship between himself and Esquire. Buschel claims that when Solano wrote to the editors of Esquire, he intended to thwart Esquire's efforts to publish Buschel's article. Because Buschel has not pled any facts which suggest that Solano acted outside the scope of the relevant privilege, Count III will also be dismissed.
To set forth a legally sufficient claim for intentional interference with contraction relations, the plaintiff must plead four elements:
(1) the existence of a contractual . . . relation between the complainant and a third party;