Ferri v. Rossetti

396 A.2d 1193, 483 Pa. 327, 1979 Pa. LEXIS 439

Opinions

OPINION OF THE COURT

NIX, Justice.

This is an áppeal from a per curiam affirmance by the Superior Court of an order of the Court of Common Pleas of Allegheny County sustaining the preliminary objections of appellee and dismissing appellant’s complaint with prejudice. The appellee had been appointed under the Criminal Justice Act, 18 U.S.C. § 3006A, et seq., to represent the appellant in connection with a federal grand jury investigation. Appellant avers that Dominick Rossetti, Esquire, appellee, lost a written agreement under which federal prosecutors agreed to confer immunity from prosecution on appellant, which immunity would have precluded a prosecution resulting in his conviction on a matter in federal court.¹ The order of the court en banc dismissing the complaint stated as the reason for its action that due to appellee’s immunity appellant had failed to state a cause of action. The Superior Court affirmed per curiam. This Court permitted review to consider the question of the immunity of defense counsel who had been assigned to represent a defendant in a federal criminal prosecution pursuant to the Criminal Justice Act.

In our recent opinion in Ferri v. Ackerman, 483 Pa. 90, 394 A.2d 553 (1978) we held that defense attorneys appointed pursuant to the Criminal Justice Act enjoyed an absolute immunity as to tort actions in the nature of malpractice, instituted in state courts. The unique issue presented by the instant appeal is whether the alleged negligent loss of a client’s papers entrusted to his counsel is included within that immunity. Counsel has not offered nor has our research revealed a case in point; thus we must look to the rationale supporting the doctrine of immunity to ascertain whether it was intended to insulate the attorney from liability under such circumstances.

The immunity conferred upon a defense counsel appointed under the Criminal Justice Act, in a criminal federal trial is an extension of common law judicial immunity. Ferri v. Ackerman, supra. The motivating force supporting the concept of judicial immunity is the recognition of the necessity of preserving an independent judiciary, which will not be deterred by the fear of vexatious suits and personal liability, together with the manifest unfairness of exposing a judicial officer to the dilemma of being required to render judgment and at the same time holding him responsible according to the judgment of others. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872).² The United States Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) articulated the reasons for extending this immunity to all of the participants in the trial, as follows:

The cluster of immunities protecting the'various participants in judge-supervised trials stems from the characteristics of the judicial process rather than its location. As the Bradley Court suggested, 13 Wall. (80 U.S.), at 348-49, 20 L.Ed. 646, controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus. See Pierson v. Ray, supra, 386 U.S. at 554, 87 S.Ct. 1213, 18 L.Ed.2d 288. Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation. Id. at 2914. (emphasis in original).

Absolute immunity may be invoked merely by showing that the official was acting within the scope of his authority. Imbler v. Pachtman, 424 U.S. 409, 421-424, 96 S.Ct. 984, 990, 47 L.Ed.2d 128, 138-140 (1976) (discussing the common law immunity of a prosecutor). See also Sullens v. Carroll, 446 F.2d 1392 (5th Cir. 1971); Jones v. Warlick, 364 F.2d 828 (4th Cir. 1966) (absolute immunity of federally appointed criminal defense attorneys). It is significant that although the prosecutor is for many purposes considered an executive official,³ the federal courts have accorded the office the judicial type immunity. See e. g., Yaselli v. Goff, 12 F.2d 396, 406 (2d Cir. 1926), aff’d per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927). This bifurcated treatment provides further evidence of the strong federal view that the participants in the judicial process should be absolutely immune from common law tort actions.

Another significant indication of the strength of the federal view that participants in legal proceedings should be insulated from suit for their actions in connection therewith was revealed by the adoption of the common law theory of absolute immunity in the statutory causes of action under section 1983 of the Civil Rights Acts, 42 U.S.C. § 1983 (1970). Section 1983 created a federal damage action against anyone who acts under color of state law to deprive a person of his civil rights. The language of section 1983 does not mention immunity; thus the statute was susceptible to an interpretation which would not recognize the common law theory of immunity. See e. g., Picking v. Penna. R.R., 151 F.2d 240, 250-51 (3d Cir. 1945), overruled on this point by Bauers v. Hersel, 361 F.2d 581, 584 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967). Nevertheless, the federal system did extend absolute immunity in damage suits brought under section 1983 to judges, Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and to prosecutors, Imbler v. Pachtman, supra4

Appellant here is urging in essence that assigned defense counsel’s immunity should not be absolute but rather qualified. His argument, that counsel’s care of his client’s papers entrusted to him during the period of representation be considered as an administrative responsibility for which counsel could be subject to a suit in damages, is an invitation to employ a functional approach in applying immunity for defense counsel. In view of the strong history in the federal system of affording the principal participants in a legal proceeding (i. e. judge, prosecutor, appointed defense counsel) with an absolute immunity in common law actions for damages any suggested qualification must be rejected.⁵ For the foregoing reasons we are in agreement with the court en banc’s conclusion that appellee herein was immune and that the complaint should have been dismissed.

Order of the Superior Court affirming the court en banc affirmed.

O’BRIEN, J., and POMEROY, former J., did not participate in the decision of this case. ROBERTS, J., filed a dissenting opinion in this case, joined by LARSEN, J.

1 . Appellant filed a similar type damage suit against the attorney that represented him in the criminal trial in the federal court. Ferri v. Ackerman,-Pa.-, 394 A.2d 553 (1978).

2 . One rationale offered is that judges “are only responsible to the people . . for the manner in which they discharge the great trusts of their office” rather them to individuals who bring suit. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 350, 20 L.Ed. 646 (1872).

3 . Jurisdictions have differed on absolute immunity for executive officials. W. Prosser, Handbook of the Law of Torts §§ 114, 132. The United States Supreme Court’s treatment of federal executive immunity has been described as being at best inconsistent. See Note, Delimiting The Scope of Prosecutorial Immunity From Section 1983 Damage Suits, 52 N.Y.U.L.Rev. 173, 176 n.25 (1977).

4 . Cases finding the common law immunity extended to defense counsel under this statutory cause of action are difficult to find since most circuits have ruled that defense counsel does not act under color of state law, custom or usage, and for that reason cannot be sued in a 1983 action. See e. g., Barnes v. Dorsey, 480 F.2d 1057 (8th Cir. 1973); Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972); Peake v. County of Philadelphia, Pennsylvania, 280 F.Supp. 853 (E.D.Pa.1968).

5 . Although the Court in Imbler v. Pachtman, supra, did not unequivocally rule out the possibility of the functioned approach with regard to the prosecutor’s immunity under section 1983 actions, it did clearly indicate that the immunity was an absolute bar to common law damage suits.