Biggans v. Foglietta

170 A.2d 345, 403 Pa. 510, 1961 Pa. LEXIS 493

• Court: Supreme Court of Pennsylvania
• Decided: May 2, 1961
• Docket: Appeal, 384
• Status: Published

Opinions

Opinion by

:Mr. Justice Bok,

This is an action in libel. Tbe court below' sustained preliminary objections and. dismissed the complaint on tbe ground that .the communication in question enjoyed absolute privilege. Tbe plaintiff bas appealed.

The- amended complaint alleges that tbe plaintiff was a public officer, namely, Chairman of the Plumbing Advisory Committee of tbe Department of Licenses and Inspections of tbe City of Philadelphia; that tbe defendant falsely and maliciously wrote libellously to tbe Mayor of tbe City about tbe plaintiff; that tbe letter was “first published through tbe Philadelphia bead-quarters of tbe Republican Party”; and that be bas been injured in bis business, bis reputation, and bis peace of mind. Tbe amended complaint quoted tbe letter.

Tbe preliminary objections reveal that the original complaint attached a copy of tbe letter, complete with letterhead showing defendant to be a councilman-at-large of tbe City Council and bis office at Room 600 City Hall, and that tbe letterhead was missing from tbe amended complaint.

Tbe issue of whether tbe letter is libellous is not before us. Both sides assume for argument that it is and present us only with tbe issue of privilege and its abuse.

Libel and slander go unscathed when privileged, on tbe theory that it is better that an individual be harmed than that tbe public go uninformed about tbe public business: Montgomery v. Philadelphia, 392 Pa. 178 (1958), 140 A. 2d 100, esp. footnote at 184 quoting Chief Judge Learned Hand; Montgomery v. Dennison, 363 Pa. 255 (1949), 69 A. 2d 520. In order to be privileged, “A communication . . . must be made upon a proper occasion, from a proper motive and must be based upon a reasonable and probable cause.” Briggs v. Garrett, 111 Pa. 404 (1886), 2 A. 513; Gray v. Pentland, 2 S. & R. 23 (1815). In Dempsky v. Double, 386 Pa. 542 (1956), 126 A. 2d 915, involving a letter written by a private citizen to a public official concerning another public official, we said: “The reason for the entry of the nonsuit was that, in the opinion of the court, the circumstances giving rise to the writing of the letter constituted a conditionally privileged occasion as a matter of law and that plaintiff had not presented any evidence to show an abuse of that privilege, as, for example, that the writer was actuated by malice. A privileged communication is one made upon a proper occasion, from a proper motive, in a proper manner and based upon reasonable and probable cause (Conroy v. Pittsburgh Times, 139 Pa. 334, 21 A. 154; Matson v. Margiotti, 371 Pa. 188, 196, 88 A. 2d 892, 896), and it is always for the court to determine whether the alleged defamatory publication is thus privileged; if found so to be, and if there be no intrinsic or extrinsic evidence of malice, it is the duty of the court to direct a nonsuit or give binding instructions for the defendant: Neeb v. Hope, 111 Pa. 145, 154, 2 A. 568, 572; Restatement, Torts, §619.”

Only the facts and circumstances can determine whether there is privilege, abuse of privilege, or no privilege. Here the face of the complaint shows that publication was not on the floor of City Council but “through” a political headquarters. We are of opinion that under such circumstances a City Councilman may enjoy conditional privilege and is open to attack for malice or other abuse, for which we regard the allegation of publication as thin but adequate.

There are few cases dealing with privileged statements in legislative bodies at the level of city and borough councils, and they are collected in 40 A.L.R. 2d 933, annotating Mills v. Denny, 245 Iowa 584, 63 N.W. 2d 222 (1954).

In Pennsylvania, in Montgomery v. Philadelphia, 392 Pa. 178 (1958), 140 A. 2d 100, we said: “However, even though a public officer, in the first instance, establishes the existence of a privileged occasion for a defamatory publication, he may nevertheless be subject to liability if a plaintiff meets the burden of persuading the factfinder that the occasion was abused by showing that the defamatory communication was made for an improper motive, in an improper manner, or was not based upon reasonable or probable cause. . . . The question of whether a privileged occasion was abused is for the determination of a jury unless the facts are such that but one conclusion can be drawn.

“To meet this contingency, the defense of absolute privilege, or complete immunity from liability for the publication of defamation was created.

“ ‘Absolute privilege, as its name implies, is unlimited, and exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements or actions motivated by malice, provided the statements are made or the actions are taken in the course of the official’s duties or powers and within the scope of his authority, or as it [is] sometimes expressed, within his jurisdiction. . . .’ Matson v. Margiotti, supra, 371 Pa. at 193-194.” (Original emphasis.)

All that we can tell from the complaint before us is that a libellous letter was written on defendant’s official stationery and was first published “through” a political headquarters, i.e., not on the floor of City Council, and this allegation removes the possibility of absolute privilege. Imagination can conjure up a dozen scenarios to indicate conditional privilege or the lack or abuse of it, but the plaintiff need not plead his evidence, and it is ancient law that summary judgment may be entered only in clear cases: Dutch Pantry, Inc. v. Shaffer, 396 Pa. 102 (1959), 151 A. 2d 621.

The order is reversed, cum procedendo.