The judicial privilege generally immunizes a declarant from potential civil liability for making disparaging statements during the course of a judicial proceeding. The privilege serves an essential function in guaranteeing access to the courts and allowing the participants to speak freely without fear of potential civil liability. Traditionally, the privilege applied to statements made in pleadings and during trial. The courts, however, have gradually extended the application and scope of the privilege to account for extra-judicial statements, meaning statements made outside of the pleadings or the courtroom. This article will summarize some of the important case law in Pennsylvania that addresses the application and scope of the judicial privilege with respect to extra-judicial statements.

In Post v. Mendel, 507 A.2d 351 (Pa. 1986), the Pennsylvania Supreme Court considered whether an extra-judicial statement qualified for protection under the judicial privilege. For context, the plaintiff and the defendant were opposing counsel in a different legal dispute that had proceeded to trial. According to the complaint, the defendant allegedly authored a letter that referenced the plaintiff’s conduct during trial and included comments that disparaged the plaintiff’s integrity and reputation as a member of the legal community. Although the letter had been addressed to only the plaintiff, the defendant allegedly sent copies to the judge presiding over the trial, the Disciplinary Board of the Pennsylvania Supreme Court, and a witness expected to testify in the trial. The plaintiff filed suit alleging claims for both libel and slander. As one may expect, the defendant filed preliminary objections asserting that the statements made in the letter were absolutely privileged. The Common Pleas Court agreed with the defendant and dismissed the plaintiff’s libel claim with prejudice. The Superior Court affirmed. The Supreme Court, however, reversed.

The court began its analysis by restating the long-established rule that “statements contained in pleadings, as well as statements made in the actual trial or argument of a case, are privileged.” The court explained 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.”

In this situation, however, the at-issue statements were not made in a pleading or during the actual trial. Rather, the statements were extra-judicial. Nevertheless, in deciding whether the judicial privilege applied to extra-judicial statements, the court considered the underlying policy that justifies the privilege. The court reasoned that, although the privilege is essential to the judicial process, the scope of the privilege is not boundless. Thus, the court held that a communication is protected by the judicial privilege only if the communication is: issued in the regular course of a judicial proceeding and pertinent and material to the redress or relief sought.

The court ultimately concluded that, although the letter had been issued and referenced matters that occurred during the trial, the letter was not “issued in the regular course of a judicial proceeding as a communication pertinent and material to the redress sought.” Therefore, the judicial privilege did not apply. 

Nearly twenty years later, in Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004), the Pennsylvania Supreme Court again considered whether an extra-judicial statement qualified for protection under the judicial privilege. In this case, the court considered whether an attorney was absolutely immune from liability when the attorney sent a copy of a previously filed complaint to a reporter. The court concluded that the judicial privilege did not protect the attorney from potential liability.

In conducting its analysis, the court distinguished the act of filing a complaint with the trial court from the act of sending a copy of the complaint to the reporter. Applying the same principles employed in Post, the court held that the act of filing a complaint with the trial court was undoubtedly protected under the judicial privilege. In contrast, the act of sending a copy of the complaint to the reporter was not protected. The court found that sending a copy of the complaint to a reporter was “an extra-judicial act that occurred outside of the regular course of the judicial proceedings and was not relevant in any way to those proceedings.” Therefore, the court reasoned, “it is plain that it was not protected by the judicial privilege.”

The Bochetto decision demonstrates that in a situation involving a series of publications the court will evaluate each individual publication independently to determine whether it qualifies for protection under the privilege. The fact that the privilege protects a publication in the first instance does not necessarily mean that the privilege will also protect a subsequent republication. Rather, each publication must independently satisfy the two elements established in Post. As noted by the court, “even an absolute privilege may be lost through over-publication.”

Also of note, the Bochetto decision suggests that sending a public record to the media, even without additional commentary, may very well subject the sender to potential liability for defamation. In his dissent, Justice Ronald Castille disagreed with the majority on this issue:

Where the alleged defamatory aspect of the ‘contact’ consists only of what is contained within the four corners of a record judicial pleading, I see no principled distinction, for defamation purposes, between the filed public complaint and the copy of it provided to the press. Here, the defendant did not make any published comments about the contents of the complaint he filed; he merely provided a copy of the public record to the reporter … who could just as easily have secured a copy of the complaint at the courthouse. The defendant provided nothing of substance to the reporter that was not already readily available directly from the court.

Notwithstanding the apparent “chilling effect” likely to result from its decision, the majority simply noted that the “privilege is not meant to promote the airing of pleadings to the media. Rather, the privilege is only meant to promote the airing of issues and facts during judicial proceedings.”

In International Portfolio v. Purplefish, No. 401 EDA 2013, 2013 Pa. Super. Unpub. LEXIS 2936 (Pa. Super. Dec. 24, 2013), the Pennsylvania Superior Court considered whether the judicial privilege applied to document preservation letters. In this case, the parties were engaged in contentious litigation. The defendants allegedly sent document preservation letters to the plaintiffs’ business associates that advised of the ongoing litigation and directed the recipient to preserve certain categories of documents relevant to the parties’ dispute. After the plaintiffs learned of these letters, they filed a complaint alleging, among other claims, defamation.

In an unpublished opinion, the court held that the trial court did not err in holding that the document preservation letters were protected under the judicial privilege. The court found that the document preservation letters were sent in the regular course of the judicial proceeding and were pertinent and material to those proceedings.

Critical to the court’s holding, the letters did not include any of the allegedly defaming statements from the complaint. Furthermore, in contrast to Bochetto, the defendants did not enclose a copy of the complaint. Instead, the letters simply stated that the pleadings were public record, and, if desired, the recipient could obtain a copy from the plaintiffs or online. The court, therefore, concluded the defendants did not abuse the judicial privilege by republishing the allegedly defamatory allegations contained in the pleadings.

Finally, in Schanne v. Addis, 121 A.3d 942 (Pa. 2015), the Pennsylvania Supreme Court was again called upon to consider whether the judicial privilege applied to an extra-judicial statement. This time, the court considered whether the privilege applied to a statement made prior to the commencement of a quasi-judicial proceeding. In such a situation, the court reasoned, the declarant’s intent is key. “Where a declarant has no intention of initiating proceedings or otherwise obtaining a remedy, clothing his or her statement with immunity cannot serve” the goal of “incentivizing individuals to speak freely within a judicial (or quasi-judicial) context.” Therefore, “assuming the declaration is otherwise actionable, then, protecting it under the cloak of the judicial privilege would do little to advance the privilege’s objectives.” Accordingly, the court concluded that the judicial privilege did not apply to a statement made prior to commencing a quasi-judicial proceeding without an intent by the declarant that the statement actually leads to a quasi-judicial proceeding.

In conclusion, although the application and scope of the judicial privilege has been gradually extended over time, the privilege is not boundless. In Pennsylvania, the courts are unlikely to find that the judicial privilege applies to an extra-judicial statement unless the statement was issued in the regular course of a judicial proceeding as a communication pertinent and material to the redress or relief sought.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.