Preiser v. Rosenzweig

• Decision Date: 29 September 1992
• Citation: 614 A.2d 303,418 Pa.Super. 341
• Parties: Stanley E. PREISER, Appellant, v. Richard ROSENZWEIG.
• Court: Pennsylvania Superior Court

Page 303

614 A.2d 303

418 Pa.Super. 341

Stanley E. PREISER, Appellant, v. Richard ROSENZWEIG.

Superior Court of Pennsylvania.

Argued March 4, 1992.

Filed Sept. 29, 1992.

Howard A. Specter, Pittsburgh, for appellant.

Avrum Levicoff, Pittsburgh, for appellee.

Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.

JOHNSON, Judge:

In this appeal from an order sustaining preliminary objections in the nature of a demurrer, we are asked to determine whether an action in defamation grounded on a complaint against an attorney submitted to the Special Fee Determination Committee of the Allegheny County Bar Association may be dismissed on the basis of absolute or judicial privilege. Concluding that judicial privilege does not apply, we reverse and remand for further proceedings.

Stanley E. Preiser, Esquire, filed this civil action against Richard Rosenzweig, also an attorney, averring in his complaint that he had been defamed, both personally and professionally, as a lawyer, by Rosenzweig in a " 'Complaint' ... submitted to the Fee Dispute Committee of the Allegheny County Bar Association." Complaint Paragraph 5. The trial court sustained Rosenzweig's preliminary objections in the nature of a demurrer and entered an order dismissing the action with prejudice on the basis of absolute or judicial privilege.

Preiser, who is licensed to practice as an attorney in our sister states of Kentucky and West Virginia, has, on occasion, been admitted to practice pro hac vice in this Commonwealth. In May of 1990, Preiser had been retained by Rocco Viola, Jr., also an attorney, to represent Viola in a criminal matter pending in the United States District Court for the Western District of Pennsylvania. Following a dispute between Preiser and Viola over both the manner in which Preiser was representing Viola and the fees charged to Viola for this representation, Viola discharged Preiser as his attorney in August, 1990. In November of 1990, Preiser filed a breach of contract action against Viola in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, at Docket No. 90-32903. After Viola retained Rosenzweig to represent him in the fee dispute with Preiser, Rosenzweig prepared and submitted a complaint on Viola's behalf, personally verified by Viola, to the Allegheny County Bar Association Fee Dispute Committee. The Fee Dispute complaint alleged, in essence, that Preiser had overcharged Viola for services performed and expenses incurred, had failed to itemize his time properly and had been inefficient. Paragraph 23 of the Fee Dispute Complaint, by which Preiser claims he was defamed, states, as follows:

It became apparent to Viola that Stanley E. Preiser was suffering a mental or emotional impairment as evidenced by his actions and treatment of Viola as well as other counsel, his unnecessarily confrontational actions, irrational behavior and the wasting of time and energy on frivolous, unrelated matters. It was this exhibition of unbalanced and unlawyer-like behavior that necessitated the discharge of Stanley E. Preiser from the case. Preiser refused to talk to his client, Viola, and on many occasions, accosted other lawyers involved in the case in an overly abusive manner.

R. 17a-18a.

Preiser, contending that these statements, as published to the Fee Dispute Committee on February 14, 1991, were false and defamatory, brought this action in defamation against Rosenzweig. Rosenzweig filed preliminary objections asserting that the statements in the Complaint to the Special Fee Determination Committee are accorded absolute privilege under the laws of this Commonwealth. On June 19, 1991, the trial court granted the preliminary objections and dismissed the complaint determining the statements to be absolutely privileged on the basis of Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984). This appeal followed.

First, Preiser asserts that it is improper to raise the affirmative defense of "privilege," by preliminary objection. He maintains that "privilege" as an affirmative defense must be raised in "new matter" pursuant to Pa.R.C.P. 1030.

It is black-letter law that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Where a party erroneously asserts substantive defenses in preliminary objections rather than to raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections. Duquesne Slag Products v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Button v. Button, 378 Pa.Super. 142, 548 A.2d 316 (1988). In this instance, the preliminary objections of Attorney Rosenzweig were properly before the trial court. Having failed to file preliminary objections to Rosenzweig's preliminary objections in the trial court, Preiser has failed to preserve this issue for appellate review. This issue is waived.

Next, we turn to our scope of review in this matter. In an appeal from an order sustaining a preliminary objection in the nature of a demurrer, our scope of review is plenary, the same as that used by the trial court: preliminary objections which result in the dismissal of the suit or the denial of the claim, should be sustained only in cases which are clear and free from doubt. 5 Standard Pennsylvania Practice 2d § 25.71 at 239-40. Where any doubt exists as to whether a demurrer should be sustained, it must be resolved in favor of overruling the demurrer. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985); Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 500 A.2d 470 (1985). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Kyle v. McNamara & Criste, 506 Pa. at 634, 487 A.2d at 816. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim upon which relief may be granted. Eckell v. Wilson, 409 Pa.Super. 132, 597 A.2d 696 (1991). A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory of law. Id. Moreover, in reviewing the complaint, we are to regard all well-pleaded facts as true and to give Preiser the benefit of all favorable inferences that we could fairly deduce from these facts. See Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986).

Preiser argues that the trial court erred in characterizing the proceeding before the Special Fee Determination Committee of the Allegheny County Bar Association as a judicial proceeding. Preiser also contends that the reliance of the trial court on Smith v. Griffiths, supra, to accord the Complaint, filed with the Fee Determination Committee, "judicial privilege," is misplaced. We agree.

The controlling case in this Commonwealth concerning judicial privilege is Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986). In Post, Mendel, an attorney, sent a letter to his trial adversary, Post, with copies to the disciplinary board, the trial judge and one of Post's clients. Post filed a defamation action against Mendel based on statements contained in the letter. The trial court dismissed the defamation claim with prejudice. In Post v. Mendel, 336 Pa.Super. 467, 485 A.2d 1176 (1984), this court affirmed the trial court, holding that the statements in Mendel's letter were subject to judicial privilege. Our supreme court reversed, determining the "alleged defamatory letter ... [was not] ... issued in the regular course of judicial proceedings as a communication pertinent and material to the redress sought" and that the letter was not "within the sphere of activities which judicial immunity was designed to protect." Id. at 221-22, 507 A.2d at 355-356.

[T]he protected realm [of judicial privilege] has traditionally been regarded as composed only of those communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought (emphasis in the original).

Id. The Supreme Court explained in discussing the facts in Post that the "alleged defamation did not in this instance occur in the pleadings, or in actual trial or the actual trial or argument of a case," stating:

The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of the consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court and to counsel to enable him to best...