Biggans v. Foglietta

• Decision Date: 02 May 1961
• Citation: 170 A.2d 345,403 Pa. 510
• Parties: Paul BIGGANS, Appellant, v. Thomas M. FOGLIETTA.
• Court: Pennsylvania Supreme Court

Page 345

170 A.2d 345

403 Pa. 510

Paul BIGGANS, Appellant, v. Thomas M. FOGLIETTA.

Supreme Court of Pennsylvania.

May 2, 1961.

Walter Stein, Berger & Stein, Philadelphia, for appellant.

George P. Williams, III, Schnader, Harrison, Segal & Lewis, Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

BOK, Justice.

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

The amended complaint alleges that the plaintiff was a public officer, namely, Chairman of the Plumbing Advisory Committee of the Department of Licenses and Inspections of the City of Philadelphia; that the defendant falsely and maliciously wrote libellously to the Mayor of the City about the plaintiff; that the letter was 'first published through the Philadelphia headquarters of the Republican Party'; and that he has been injured in his business, his reputation, and his peace of mind. The amended complaint quoted the letter.

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

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

Libel and slander go unscathed when privileged, on the theory that it is better that an individual be harmed than that the public go uninformed about the public business: Montgomery v. City of Philadelphia, 1958, 392 Pa. 178, especially footnote at page 184, 140 A.2d 100, at page 104, quoting Judge Learned Hand; Montgomery v. Dennison, 1949, 363 Pa. 255, 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 or probable cause.'

Briggs v. Garrett, 1886, 111 Pa. 404, 2 A. 513, 520; Gray v. Pentland, 1915, 2 Serg. & R. 23. In Dempsky v. Double, 1956, 386 Pa. 542, 126 A.2d 915, 917, 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, 11 L.R.A. 725; 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 of 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, 1954, 245 Iowa 584, 63 N.W.2d 222.

In Pennsylvania, in Montgomery v. City of Philadelphia, 1958, 392 Pa. 178, 140 A.2d 100, 102, 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 factfinder4 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.

'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. [188,] at pages 193-194, 88 A.2d [892,] at page 895.' (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 scenarious 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, 1959, 396 Pa. 102, 151 A.2d 621.

The order is reversed, cum procedendo.

BELL, Justice (concurring).

If a deputy commissioner of public property of Philadelphia and a city architect are entitled to absolute privilege--and in Montgomery v. City of Philadelphia, 392 Pa. 178, 140 A.2d 100, this Court held that they were entitled to absolute privilege--I believe that a Councilman of the City Council of Philadelphia, who is a higher and more important public official, is entitled to absolute privilege. However and in any event the majority has in my judgment confused the scope of absolute or unlimited privilege with the tests for conditional or limited privilege. See: Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892; and Montgomery v. City of Philadelphia, supra.

In Matson v. Margiotti, supra, the Attorney General of Pennsylvania sent a letter to the District Attorney of Allegheny County concerning Mrs. Matson, who was an Assistant District Attorney of Allegheny County. The letter accused her of being a Communist, a statement which was libelous per se. ¹ The Court in its Opinion pertinently said (371 Pa. at pages 193, 194, 198, 202, 203-204, 205, 88 A.2d 895):

'The defendant would nevertheless have two possible defenses: (a) Truth, [Citing cases] and (b) Privilege. * * *

'Privilege has been divided into two kinds, (1) absolute or unlimited, and (2) conditional or limited.

'Defendant contends he is entitled to 'absolute privilege' and hence absolute immunity from civil suit. Absolute privilege, as its name implies, is unlimited, and exempts a high public official...