Milliner v. Enck

• Decision Date: 19 March 1998
• Citation: 709 A.2d 417
• Parties: William Gregory MILLINER, Appellant, v. G. David ENCK, Thomas Enck, John Enck, Individually and doing business as Enck Brothers Drywall, a Partnership, Appellees.
• Court: Pennsylvania Superior Court

Page 417

709 A.2d 417

William Gregory MILLINER, Appellant, v. G. David ENCK, Thomas Enck, John Enck, Individually and doing business as Enck Brothers Drywall, a Partnership, Appellees.

Superior Court of Pennsylvania.

Argued Feb. 4, 1998.

Filed March 19, 1998.

Nina B. Shapiro, Lancaster, for appellant.

John Flounlacker, Harrisburg, for appellees.

Before POPOVICH and JOYCE, JJ., and CIRILLO, President Judge Emeritus.

POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas entered on June 25, 1997, which sustained appellees' preliminary objections and dismissed appellant's complaint. Herein, appellant questions: "Whether the lower court erred in granting preliminary objections and dismissal of the action as the complaint sufficiently plead (sic) a legal claim alleging libel, slander and defamation for communication unprotected by privilege as the speech was outside the scope of judicial immunity and/or the privilege was abused?" Upon review, we affirm.

On March 20, 1997, appellant filed the complaint sub judice, wherein he alleged that appellees published defamatory statements to the Job Center of the Pennsylvania Department of Labor and Industry. In response, appellees filed preliminary objection in which they claimed their statements were subject to the absolute privilege afforded statements made in the course of judicial proceedings. The lower court agreed and dismissed appellant's complaint. This timely appeal followed.

When reviewing an order sustaining preliminary objections, we apply the following scope and standard of review as set forth in Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., 418 Pa.Super. 178, 613 A.2d 1235, 1238 (1992):

In an appeal from an order sustaining preliminary objections in the nature of a demurrer, the appellate court applies the same standard employed by the trial court; all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Guinn v. Alburtis Fire Co., 134 Pa.Cmwlth. 270, 577 A.2d 971 (1990); Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985).

In reviewing preliminary objections, only facts that are well pleaded, material, and relevant will be considered as true, together with such reasonable inferences that may be drawn from those facts, and preliminary objections will be sustained only if they are clear and free from doubt. Ohio Casualty Group Ins. Co. v. Argonaut Ins. Co., 92 Pa.Cmwlth. 560, 500 A.2d 191 (1985). A preliminary objection should be sustained only where it appears with certainty that, upon the facts averred, the law will not allow the plaintiff to recover. International Union of Operating Engineers, Local No. 66, AFL-CIO v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974).

We have reviewed the record in light of the foregoing scope and standard of review, and we adopt the factual and procedural history of this case as set forth by the court below, as follows:

The Plaintiff was employed by the Defendants as a laborer until he was fired by letter dated February 14, 1996. The termination letter indicated that he was being fired for violating the company's policies concerning drugs, lateness and absenteeism. On February 13, 1996, the Plaintiff had filed a complaint with the Lancaster County Human Relations Commission (LCHRC) concerning alleged racial slurs from other employees. The Defendants were aware of this complaint.

After being fired, the Plaintiff filed a claim for unemployment compensation benefits with the Job Center of the Pennsylvania Department of Labor and Industry (Job Center). On February 19, 1996, the Defendants sent the Job Center a copy of the termination letter, along with another document, explaining in detail the allegations set forth in the termination letter. The Job Center subsequently denied the Plaintiff's request for unemployment benefits on March 3, 1996. The Plaintiff appealed, and a referee reversed the Job Center's decision; he determined that the Defendants fired the Plaintiff because he had filed the complaint with the LCHRC. At no time during the hearing before the referee, did the Defendants introduce into evidence or attempt to prove any facts of the alleged drug use. The referee's decision was affirmed by both the Unemployment Compensation Board of Review and our Commonwealth Court, both finding that he had been fired for filing his complaint with the LCHRC.

Trial Court Opinion, pp. 2-3.

Appellant complains that appellees' communications with the Job Center were defamatory. In response to appellant's claim for unemployment benefits, appellees provided the Job Center with a copy of its termination letter to appellant and a supplemental letter which included "Additional Information." Basically, appellees stated in those letters that appellant sold and consumed illegal drugs, was on parole, was repeatedly late for work and had numerous unexcused absences. As previously stated, appellees did not present any evidence of appellant's alleged drug activities or his parole status at any hearing during the unemployment compensation litigation.

In response to appellant's defamation complaint, appellees argued that their statements to the Job Center were absolutely privileged because they were made during a judicial proceeding, i.e., an unemployment compensation action. It is well settled that: "When alleged libelous or defamatory matters, or statements, or allegations and averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them." Post v. Mendel, 510 Pa. 213, 220, 507 A.2d 351, 355 (1986), quoting Greenberg v. Aetna Insurance Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968); Kemper v. Fort, 219 Pa. 85, 93, 67 A. 991, 994 (1907); Rolla v. Westmoreland Health System, 438 Pa.Super. 33, 651 A.2d 160, 161 (1994); Restatement of Torts, 2nd, §§ 585, 586, 587. In fact, "[a]ll communications pertinent to any stage of a judicial proceeding are accorded an absolute privilege which cannot be destroyed by abuse." Binder v. Triangle Publications, Inc., 442 Pa. 319, 323, 275 A.2d 53, 56 (1971); Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22, 24 (1984).

The courts of this Commonwealth have not heretofore held that unemployment compensation proceedings are "judicial proceedings" such that communications directly related thereto are absolutely privileged. However, appellant has conceded that statements made in relation to proceedings before an Unemployment Compensation Referee, the Unemployment Compensation Board of Appeals, or the Commonwealth Court are subject to an absolute privilege. See Appellant's Brief, p. 9. Thus, the general issue of whether the absolute privilege for statements made in relation to a judicial proceeding is equally applicable to statements made in an unemployment compensation proceeding is not before this court. Puleo v. Thomas, 425 Pa.Super. 285, 624 A.2d 1075 (1993) (issues not raised before lower court are normally waived for the purpose of appeal). ¹

Herein, appellant only claims that statements made to the Job Center, which relate to the initial determination of an employee's eligibility for unemployment benefits are not part of the "judicial proceedings," and, therefore, appellees' statements are not cloaked with the absolute privilege. More particularly, appellant notes that appellees did not present any evidence or argument related to his alleged drug use and parole status at the hearings before the Referee and the Unemployment Compensation Board of Review or in the argument before the Commonwealth Court. Consequently, appellant submits the allegedly defamatory statements made in the communications published to the Job Center were not "relevant and material" to the judicial proceedings and, thus, were not absolutely privileged from liability for defamation.

We must reject appellant's argument. It is clear that an allegedly defamatory communication is absolutely privileged when it is published prior to a "judicial proceeding" as long as that communication has a bearing on the subject matter of the litigation. Restatement of Torts, 2nd, §§ 586, 587. As comment c of § 587 of the Restatement of Torts, 2nd, reveals:

It is not necessary that the defamatory matter be relevant or material to any issue before the court. It is enough that it have some reference to the subject of the inquiry. Thus, while a party may not introduce into his pleadings defamatory matter that is entirely disconnected to the litigation, he is not answerable for defamatory matter volunteered or included by way of surplusage in his pleadings if it has any bearing upon the subject matter of the litigation. The fact that the defamatory publication is an unwarranted reference from the alleged or existing facts is not enough to deprive the party of his privilege, if the inference itself has some bearing upon the litigation.

See Post, 507 A.2d at 356-357 (Supreme Court, applying Restatement of Torts, 2nd, § 586, held that attorney's letter was not pertinent and material to the redress sought and, consequently, it was not absolutely privileged).

Herein, appellees' statements were certainly relevant and material to the judicial proceeding in question and were made in relation to the judicial proceedings before the Unemployment Compensation Referee, Unemployment Compensation Board of Review and, ultimately, the Commonwealth Court. In this case, appellees' statements to the Job Center were essentially their "answer" to appellant's "complaint" for unemployment...