finding that "statements to the effect that an attorney has committed improper, illegal actions within the context of his practice, would tend to impugn his integrity, and thereby blacken his business reputation"
How later courts described this case
- finding that "statements to the effect that an attorney has committed improper, illegal actions within the context of his practice, would tend to impugn his integrity, and thereby blacken his business reputation"
- stating that “private witnesses . . . are absolutely immune from damages liability for testimony, albeit false, given or used in judicial proceedings”
- stating that “absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act”
- upholding trial court sustaining preliminary objections because the existence of an earlier lawsuit fifed by the defendant against the plaintiff cannot be the basis of defamation or tortious interference claims since a lawsuit is absolutely judicially privileged
Written by the judges who cited it.
The opinion
*443 JOHNSON, Judge,
concurring:
I join the Majority’s decision and analysis with respect to the following: Counts I through VIII; Counts XIII and XIV as to all Appellees; and, the affirmance of the dismissal of Counts IX through XII as to Appellees Cohen, Magarity, PNB, and the three Appellee law firms. I also join the Court’s decision to reverse the dismissal of Counts IX through XII as to Appellees Marion and Harvey and to remand these counts for Amendment of the Complaint.
I do not agree, however, with that part of the Majority’s analysis of Counts IX through XII which discusses the possibility of a qualified privilege providing immunity to Marion and Harvey for their statements to the press. Slip Opinion at 14 and 18. The majority relies upon the case Binder v. Triangle Publishing Inc., 442 Pa. 319 , 275 A.2d 53 (1971), and describes the qualified immunity that applies to extra-judicial communications as follows:
in the interests of keeping the public informed, newspaper articles are entitled to make fair and accurate report of judicial proceedings and involved parties, witnesses, and counsel are permitted to make remarks to the press relative to proceedings, and no responsibility will attach, even if the contents of articles or remarks are false and defamatory, provided the articles and/or remarks were not published solely for the purpose of causing harm.
Majority opinion at 437. According to Binder , extra-judicial statements are protected by a qualified immunity when the statements refer directly to court proceedings. The court in Binder held that there was no defamation when a newspaper used vivid words to characterize the judicial proceedings it was reporting because the words were not unfair or inaccurate. Binder, supra.
The statements to the media made by Marion and Harvey do not rise to the level of those discussed by the Court in Binder as privileged extra-judicial statements. Marion called a news conference and repeated Cohen’s allegations contained in her disallowed private offer of proof in the recusal hearing of Judge Snyder. A voluntary act of disseminating information which has been barred from court *444 proceedings cannot afford the basis for a consideration of conditional immunity.
Harvey’s statement to the press, characterizing Pelagatti’s behavior in sending out ex parte subpoenas as “an abuse of process” and “exactly the conduct which was described” in Cohen’s offer of proof, as well as “improper ... and possibly illegal” also did not come from the record of court proceedings. Majority opinion at 439. This statement must be analyzed for defamatory content in the same manner as any out of court statement.
I have carefully reviewed the facts of this case and find that they provide no basis for the extension of a qualified privilege. I am concerned that the Court appears to be analyzing the activities of attorneys, who make out of court statements not directly associated with court proceedings, at a different level than similar statements made by non-attorneys.
I would find that the relevant statements made by Marion and Harvey were not privileged. Analyzed for defamatory content on this basis, those statements support a possible jury finding of defamation per se. Walder v. Lobel, 339 Pa.Super. 203, 213 , 488 A.2d 622, 627 (1985). I therefore join the Court’s decision to reverse the dismissal of Counts IX through XII.