[J-10-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
ROBERT SCHANNE, : No. 106 MAP 2014
:
Appellant : Appeal from the U.S. Court of Appeals,
: Third Circuit No. 12-4044
v. :
:
JENNA ADDIS, :
:
Appellee : ARGUED: March 10, 2015
OPINION
MR. CHIEF JUSTICE SAYLOR DECIDED: August 17, 2015
We granted the Third Circuit’s petition for certification in this defamation case.
The question is whether the judicial privilege extends to an allegation made concerning
a school teacher by a former student, where the allegation was made before quasi-
judicial proceedings were commenced and without any intent that it lead to such
proceedings.
Robert Schanne taught physics at Lower Merion High School in Ardmore,
Pennsylvania from September 1997 through December 2010. Jenna Addis was his
student during her junior and senior years, from 2001 until her graduation in 2003. After
Addis graduated, she attended Tulane University in New Orleans, where she still
resides.
In late November 2010, Addis (then age 26) was visiting Pennsylvania for the
Thanksgiving weekend. During her visit, Addis spoke to Susan O’Bannon, a friend who
was employed by Lower Merion High School. Addis told O’Bannon that she and
Schanne had been romantically involved while Addis was a high school senior and
during the summer after she graduated. O’Bannon reported Addis’s allegation to school
officials. Addis testified in her deposition that she discussed the matter with O’Bannon
as a friend and not as an agent of the school. Addis stated, moreover, that she did not
intend for O’Bannon to report the information to the school, that she was not aware
O’Bannon would feel obligated to make such a report, and that she was surprised to
learn that O’Bannon had done so. See N.T., Dec. 1, 2001, at 137, 141.
Upon hearing the allegations, school officials called Addis in New Orleans to
investigate the matter further. They made two such calls in early December 2010 and
memorialized the content of the conversations in papers which they sent to Addis for
her correction and signature. The federal district court described these papers as
Addis’s official statement to the school concerning her relationship with Schanne.
According to the statement, while Addis was a high school senior, she developed
an emotional attachment to Schanne and the two would sometimes eat lunch together
in a workroom connected to the main physics classroom. For a period of four to six
weeks in the fall of 2002, Schanne assisted Addis in preparing for the SAT physics
exam by tutoring her at her home. During this time, the pair developed a relationship
that included a physical component, albeit they did not have intercourse until Addis
graduated. After Addis moved to New Orleans for college, she and Schanne kept in
touch and would have intimate relations whenever Addis was in Pennsylvania for
holidays, although they were “not a couple anymore.” Statement at 3. At some point,
however, Addis began to believe her high school involvement with Schanne was
interfering with her ability to have healthy relationships with others, and she wanted
Schanne to admit that his conduct had been inappropriate. She sent him an email to
this effect, but was disappointed when Schanne responded by stating there was nothing
[J-10-2015] - 2
improper about their relationship. During Addis’s November 2010 visit to Pennsylvania,
she met Schanne at a bookstore and repeated her concerns, but he again maintained
that their relationship “wasn’t wrong.” Statement at 4.
Based on Addis’s statement, school officials provided Schanne with a pre-
termination Loudermill hearing as required by due process. See Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493 (1985). Shortly thereafter,
Schanne was suspended. Schanne refused to attend a follow-up hearing in January
2011, and the school district terminated his employment later that month.
Schanne filed a defamation action against Addis directed to the federal court’s
diversity jurisdiction. In his amended complaint, Schanne alleged that his romantic
involvement with Addis did not begin until after she graduated from high school, and
that any contrary assertions by Addis were false and made with malice due to Addis’s
jealousy over Schanne’s relationship with another woman. Schanne averred that
Addis’s statements were not judicially privileged because: they were not made during a
school board meeting, hearing, or other judicial or quasi-judicial proceeding; no judicial
or quasi-judicial proceeding regarding Schanne was “convened or contemplated” at the
time Addis made her allegations; and no other privilege applied to the statements.
Amended Complaint, ¶28.
Addis filed a motion for summary judgment which the federal court granted on
the basis that all of her assertions were protected by the judicial privilege. See Schanne
v. Addis, 898 F. Supp. 2d 751 (E.D. Pa. 2012). In reaching this conclusion, the court
reviewed state court decisions it construed as holding that statements published prior to
or during judicial proceedings which relate to those proceedings are privileged. See,
e.g., Post v. Mendel, 510 Pa. 213, 220, 507 A.2d 351, 355 (1986); Binder v. Triangle
Publ’ns, Inc., 442 Pa. 319, 323, 275 A.2d 53, 56 (1971). Referencing Milliner v. Enck,
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709 A.2d 417 (Pa. Super. 1998), the court expressed that the privilege also applies in
relation to quasi-judicial proceedings. See id. at 419 n.1. The court observed,
moreover, that Schanne admitted in his pleadings that the school’s pre-termination
Loudermill hearing constituted a quasi-judicial proceeding, and that he conceded at oral
argument that the material in Addis’s statement to school officials was pertinent to that
proceeding. See Schanne, 898 F. Supp. 2d at 755-56. Thus, according to the court,
the sole issue was whether Addis’s initial allegation to O’Bannon was “pertinent and
material” to the Loudermill hearing. In addressing the issue, the court reasoned:
Courts must also consider whether applying an absolute privilege in a
given case would promote the privilege’s purpose. The purpose of the
privilege is “to afford [parties] freedom of access to the courts,” to
“encourage [witnesses’] complete and unintimidated testimony in court,”
and “to enable [counsel] to best represent his client’s interests.” Binder,
275 A.2d at 56. If not for this privilege, “a realm of communication
essential to the exploration of legal claims [ ] would be hindered . . ..” Post
v. Mendel, 507 A.2d at 355. In this case, protecting Addis’ statement
furthers the purpose of the privilege.
Id. at 757 (alterations in original). Particularly since the declaration to O’Bannon had
“served as the catalyst” for the Loudermill hearing, id., the court determined that the
privilege applied to that statement. See id. at 758.
On appeal, Schanne argued that Addis’s statement to O’Bannon was not made
in the regular course of a judicial action, because Addis had gone to O’Bannon as a
friend and did not contemplate possible judicial or quasi-judicial proceedings. Addis
responded that her intent in communicating with O’Bannon was irrelevant and that,
because it resulted in quasi-judicial proceedings, it was privileged as a preliminary
communication. After the matter was briefed and argued before the Third Circuit Court
of Appeals, that tribunal certified the following question for our resolution:
Does the absolute judicial privilege apply to an allegation of sexual
misconduct against a teacher by a former student, which allegation was
[J-10-2015] - 4
made prior to the commencement of any quasi-judicial proceeding and
without an intent that the allegation lead to a quasi-judicial proceeding?
Schanne v. Addis, ___ Pa. ___, 99 A.3d 527 (2014) (per curiam).
Presently, Schanne argues that for immunity to attach there must be judicial or
quasi-judicial proceedings to which the disputed statement is connected. Here,
Schanne notes, Addis made her allegation to O’Bannon before any proceedings were
initiated and without any intention or expectation that O’Bannon would report the
information to the school. Schanne contends that extending the privilege in these
circumstances would not only fail to serve its purpose, it would also permit an individual
who makes a defamatory communication to a third party to later “engineer a privilege”
by persuading the third party to file a complaint based on the communication. Brief for
Appellant at 16. Schanne urges, in this respect, that the privileged status of a statement
should not depend solely on the subsequent actions of a third party – particularly
because, in his view, a statement is “either privileged when made or it is not[.]” Id.
Addis responds, initially, by arguing that, because litigation is expensive and time
consuming, this Court should hold that a declarant’s intent in making an allegedly
defamatory statement is irrelevant to the question of privilege so that the declarant will
not have to litigate the issue. She claims a contrary holding would allow a defamation
plaintiff to impose undue litigation expenses upon a defendant whenever the latter
claims the judicial privilege. Separately, Addis suggests that there is a broad spectrum
of possible consequences to a declaration made regarding a teacher in Schanne’s
position, from a private meeting with school officials which leads to an informal warning,
to quasi-judicial proceedings which result in the teacher’s discharge from employment.
Hence, she proffers that focusing on the declarant’s intent would be unworkable
because it would be unclear where along that spectrum of intended outcomes the
privilege should attach.
[J-10-2015] - 5
Addis continues that extending immunity in the present circumstances would be
consistent with the judicial privilege’s underlying policy – as articulated in decisions such
as Post and Binder – of ensuring access to the courts for all persons who wish to assert
a legal claim regardless of the merits of that claim. She notes, in this regard, that, once
it is determined that immunity attaches, the individual is shielded from liability regardless
of intent; thus, she urges that we reject Schanne’s argument that the privilege does not
apply in the first instance due to her lack of intent that the declaration to O’Bannon
would lead to judicial or quasi-judicial proceedings. Relatedly, Addis urges that a
privilege attaches, if at all, as a matter of law – and thus, a speaker’s intent as to
whether it should attach is irrelevant.
A group of non-profit organizations have submitted a joint amicus brief
emphasizing that it is in the public interest for schoolchildren to be protected from
sexual harassment and sexual assault by school employees. Amici suggest that,
because this type of victimization is underreported, extending the judicial privilege to
Addis’s initial communication to O’Bannon would be salutary insofar as it would allow
students to report incidents of sexual misconduct without fear of retaliation.
Pennsylvania law closely guards the ability of a person whose reputation has
been injured by defamatory statements to obtain redress for such injury.1 In American
Future Systems v. Better Business Bureau, 592 Pa. 66, 923 A.2d 389 (2007), the Court
explained that the Pennsylvania Constitution “places reputational interests on the
highest plane, that is, on the same level as those pertaining to life, liberty, and property.”
Id. at 77 n.7, 923 A.2d at 395 n.7; see PA. CONST. art. I §1 (“All men . . . have certain
1
While reputational harm in isolation may appear abstract, such injury can be the
occasion for more concrete harms such as termination from employment, loss of
opportunities, or adverse actions in relation to custody or visitation rights. See, e.g.,
Silberg v. Anderson, 786 P.2d 365, 368 (Cal. 1990).
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inherent and indefeasible rights, among which are those of enjoying and defending . . .
reputation . . ..”); id. §11 (“[E]very man for an injury done him in his . . . reputation shall
have remedy by due course of law . . ..”); see also Norton v. Glenn, 580 Pa. 212, 225-
26, 860 A.2d 48, 56 (2004) (“The right of a man to the protection of his own reputation
from unjustified invasion and wrongful hurt reflects no more than our basic concept of
the essential dignity and worth of every human being . . ..” (quoting Milkovich v. Lorain
Journal Co., 497 U.S. 1, 22, 110 S. Ct. 2695, 2708 (1990))). See generally Rosenblatt
v. Baer, 383 U.S. 75, 86, 86 S. Ct. 669, 676 (1966) (recognizing that “[s]ociety has a
pervasive and strong interest in preventing and redressing attacks upon reputation”).
At the same time, there is a fundamental societal need for justice to be
administered freely and efficiently through the eliciting of speech from parties and
witnesses that may be accusatory or otherwise reflect negatively upon another’s
character. Thus, notwithstanding any reputational harm that may ensue, Pennsylvania,
like many other jurisdictions, recognizes a judicial privilege providing immunity for
communications which are made in the regular course of judicial proceedings and are
material to the relief sought. See Bochetto v. Gibson, 580 Pa. 245, 251, 860 A.2d 67,
71 (2004).2 The privilege covers statements by a party, a witness, an attorney, or a
judge. See Binder, 442 Pa. at 323, 275 A.2d at 56. Furthermore, the privilege is
2
It is beyond the scope of this appeal to inquire whether the school’s procedures
qualified as judicial proceedings – or, assuming they were “quasi-judicial proceedings,”
whether the privilege applies as to that category of official action. In its certification
petition the federal appellate court assumed the privilege could apply to the school
district’s proceedings, and the question posed rests on that assumption. Therefore, we
also will continue under the same assumption. Cf. Mitchell Partners, L.P. v. Irex Corp.,
617 Pa. 423, 437 & n.7, 53 A.3d 39, 47-48 & n.7 (2012) (reaching a legal determination
on a certified question, but declining to comment further on its application in the
underlying federal action).
[J-10-2015] - 7
absolute, meaning that, where it attaches, the declarant’s intent is immaterial even if the
statement is false and made with malice. See Bochetto, 580 Pa. at 251 n.12, 860 A.2d
at 71 n.12.3
The judicial privilege serves an essential function in guaranteeing access to the
courts and permitting the free articulation and resolution of legal claims. See Post, 510
Pa. at 221, 507 A.2d at 355 (observing that “the privilege exists because there is a
realm of communication essential to the exploration of legal claims that would
[otherwise] be hindered”). Hence, its purpose is to allow participants in judicial
proceedings to speak freely without fear of civil liability. As Binder explained:
The reasons for the absolute privilege are well recognized. A judge must
be free to administer the law without fear of 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
represent his client’s interests.
Binder, 442 Pa. at 323-24, 275 A.2d at 56 (citing, inter alia, William Prosser, TORTS
§109 (3d ed. 1964)).
In view of the broad policy objectives reflected above, the judicial privilege is not
limited to statements made in open court, but encompasses pleadings as well. See
Greenberg v. Aetna Ins. Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967). The
Superior Court has extended the privilege further to “even less formal communications
such as preliminary conferences and correspondence between counsel in furtherance
of the client’s interest,” Pawlowski v. Smorto, 403 Pa. Super. 71, 81, 588 A.2d 36, 41
3
An absolute privilege is unlike a qualified privilege in that the latter does not protect the
declarant against a charge of malice, see Preiser v. Rosenzweig, 538 Pa. 139, 145, 646
A.2d 1166, 1169 (1994), and can be lost through abuse of the privilege “such as overly
embellishing an account of a proceeding.” Binder, 442 Pa. at 324, 275 A.2d at 56.
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(1991), as well as to statements made to law enforcement officials for the purpose of
persuading those officials to initiate criminal proceedings. See id. at 84, 588 A.2d at 43;
cf. Adams v. Peck, 415 A.2d 292, 294 (Md. 1980) (expressing that the privilege should
extend to potentially defamatory statements published in documents which are prepared
for possible use in connection with a pending judicial proceeding but which have not yet
been filed). The Second Restatement of Torts is of this view:
A witness is absolutely privileged to publish defamatory matter concerning
another in communications preliminary to a proposed judicial proceeding
or as a part of a judicial proceeding in which he is testifying, if it has some
relation to the proceeding.
RESTATEMENT (SECOND) OF TORTS §588 (1977); see also id. §587 (reflecting a parallel
provision applicable to parties).
As illustrated by the foregoing, the scope of the judicial privilege has been
gradually extended over time as courts, scholars, and practitioners have taken into
account its usefulness in a variety of scenarios connected with the sound administration
of justice as that term is broadly understood. The contours of the privilege, moreover,
have been shaped by a case-by-case evaluation of whether its application in specific
circumstances is needed to advance its underlying policy objectives.
Notably, in this regard, courts have also referenced such policy considerations to
limit application of the privilege in certain instances where those considerations would
not be implicated. For example, the Binder Court held that the judicial privilege “does
not apply to newspaper accounts of judicial proceedings, for none of the policy
considerations noted above are applicable to a news story.” Binder, 442 Pa. at 324,
275 A.2d at 56. Likewise, Post concluded that the judicial privilege did not apply to a
letter sent by an attorney to opposing counsel – with copies to the judge, the
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Disciplinary Board of this Court, and opposing counsel’s client – accusing counsel of
unethical behavior during the course of an ongoing trial. The Post Court observed:
The essential realm of protected communication is not . . . without bounds.
Rather, the protected realm 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.
Post, 510 Pa. at 221, 507 A.2d at 355 (emphasis removed). While the letter, in one
sense, pertained to the trial, it was immaterial to the relief sought or to the legal claims
raised in that proceeding. See id. at 223-24, 507 A.2d at 356-57.
Bochetto provides another example along these lines. In that matter, a private
club commenced a malpractice action against its former lawyer. The club’s new
attorney filed the complaint and then transmitted a copy of it to the news media. This
Court noted that the filing of the complaint was privileged since it occurred in the regular
course of judicial proceedings and was material to those proceedings. See Bochetto,
580 Pa. at 252, 860 A.2d at 72. However, its republication to the media was held not to
be privileged, as it was an extrajudicial act that occurred outside of the regular course of
the proceedings and lacked relevancy to the proceedings. Thus, giving privileged
status to the republication would not advance the privilege’s underlying policy aims.
See id. at 253, 860 A.2d at 73; see also Barto v. Felix, 250 Pa. Super. 262, 267-68, 378
A.2d 927, 930 (1977) (concluding that, although allegations in an attorney’s brief were
protected by the judicial privilege, the attorney’s remarks about the contents of the brief
during a press conference were not likewise protected).
Overall, then, while the judicial privilege has expanded with the needs of justice,
it has also been made subject to limitations where the administration of justice is not
likely to be substantially affected. See Adams, 415 A.2d at 294 (“The question whether
a defamatory statement should be absolutely privileged involves a matter of public
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policy in which the public interest in free disclosure must be weighed against the harm
to individuals who may be defamed.”). Absent such limitations, the constitutionally-
guaranteed right to recover for reputational injuries would be unduly constrained. See
generally Asay v. Hallmark Cards, Inc., 594 F.2d 692, 698 (8th Cir. 1979) (cautioning
that absolute immunity should not be “lightly conferred” as to preliminary statements);
Brown v. Collins, 402 F.2d 209, 213 (D.C. Cir. 1968) (same).
We turn now to an evaluation of whether the policy concerns which underlie the
judicial privilege are implicated by the circumstances as delineated by the Third Circuit.
Perhaps the most salient aspect of the issue as framed is that, not only was the
allegation made before the commencement of proceedings, it was made “without an
intent that [it] lead to a quasi-judicial proceeding.” Certification Petition at 7; Schanne v.
Addis, ___ Pa. at ___, 99 A.3d at 527. As reflected in the certification petition and the
record, Addis spoke to O’Bannon only as a friend and with no desire or expectation that
the allegation she made against Schanne would result in proceedings of any type. This
is relevant because the judicial privilege operates by incentivizing individuals to speak
freely within a judicial (or quasi-judicial) context – or more to the point here, to speak
freely in seeking to initiate judicial or quasi-judicial proceedings. Where a declarant has
no intention of initiating proceedings or otherwise obtaining a remedy, clothing his or her
statement with immunity cannot serve this goal. 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, while undermining the plaintiff’s right to obtain
recompense for any injury to his or her reputation.4
4
In this regard, we do not endorse the district court’s “served as the catalyst for a
hearing” standard. Schanne, 898 F. Supp. 2d at 757. Such a test shifts the focus from
whether application of the privilege would promote the efficient administration of justice
(Lcontinued)
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Our conclusion is consistent with the scope of the privilege as envisioned by the
Restatement, which clarifies that only “communications preliminary to a proposed
judicial proceeding” are immunized. RESTATEMENT (SECOND) OF TORTS §588 (1977).
The official comment elaborates further:
As to communications preliminary to a proposed judicial proceeding, the
rule stated in this Section applies only when the communication has some
relation to a proceeding that is actually contemplated in good faith and
under serious consideration by the witness or a possible party to the
proceeding. The bare possibility that the proceeding might be instituted is
not to be used as a cloak to provide immunity for defamation when the
possibility is not seriously considered.
Id. cmt. e (1977) (emphasis added); see also Cardtoons, L.C. v. Major League Baseball
Players Ass’n, 335 F.3d 1161, 1167 (10th Cir. 2003) (reciting that the privilege attaches
“as long as the speaker . . . has an actual subjective good faith belief that litigation is
seriously contemplated” (internal quotation marks omitted)); Messina v. Krakower, 439
F.3d 755, 760 (D.C. Cir. 2006) (stating that, for the judicial privilege to apply in a
(continuedL)
to a backward-looking factual assessment of how a third party independently decided to
use the allegedly defamatory communication.
Nor are we persuaded by the dissent’s suggestion that Addis “could not mount the
courage to name her alleged perpetrator until her twenties,” and that this is now “be[ing]
used against her.” Dissenting Opinion, slip op. at 1. Such a description is problematic
in the context of the present appeal for multiple reasons. First, there is no suggestion in
the record that Addis’s delay related to any failure of courage. To the contrary, by her
own account she continued a consensual relationship with Schanne for many years
after graduating from high school, and she disclosed that relationship to a friend in
conversation after becoming dissatisfied with Schanne’s refusal to admit that he had
done anything improper. Second, and more broadly speaking, any suggestion that this
circumstance is being “used against her” misses the point: we are only evaluating the
narrow legal question of whether and how Addis’s intent and expectation in making the
communication impact upon the applicability of the judicial privilege under the
circumstances as they have been presented to us.
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defamation case, “litigation [must be] truly under serious consideration” (internal
quotation marks omitted)); 50 AM. JUR. 2D Libel & Slander §282 (2015) (same).5
We are aware that the federal district court referenced several reported decisions
from other States in holding that the judicial privilege applies “when student allegations
against teachers lead to quasi-judicial proceedings.” Schanne, 898 F. Supp. 2d at 757.
All of those cases are materially distinguishable from the current dispute in that the
communications at issue were made in a directed effort to initiate proceedings or
otherwise obtain relief from school officials for harm stemming from a school
employee’s alleged misconduct.6 Under such a predicate, there is a colorable nexus
5
Along these lines, the supreme court of one of our sister States has noted that:
It is important to distinguish between the lack of a good faith intention to
bring suit and publications which are made without a good faith belief in
their truth . . .. The latter, when made in good faith anticipation of
litigation, are protected as part of the price paid for affording litigants the
utmost freedom of access to the courts. This policy consideration is not
advanced, however, when the person publishing an injurious falsehood is
not seriously considering litigation. In such a case, the publication has no
connection or logical relation to an action and is not made to achieve the
objects of any litigation.
Kirschstein v. Haynes, 788 P.2d 941, 952 n.29 (Okla. 1990) (emphasis added) (quoting
Fuhrman v. Cal. Satellite Sys., 231 Cal. Rptr. 113, 119 n.5 (Cal. Ct. App. 1986),
overruled on other grounds by Silberg v. Anderson, 786 P.2d 365 (Cal. 1990)). The
dissent attempts to counteract this reasoning by suggesting that O’Bannon was “a
possible party to the proceeding.” Dissenting Opinion, slip op. at 1. However, the only
parties to any action by the school would have been Schanne and the school; at most,
O’Bannon would have been a witness. Nor is there any reason to believe that, at the
time of Addis’s disclosure to O’Bannon, any judicial proceeding was “proposed” (as
required by Section 588) or “under serious consideration” (as clarified by comment e) –
and indeed, both the record and the legal question as framed indicate the opposite.
6
See Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008) (applying the privilege where two
graduate students lodged a formal complaint with the university about a professor);
Reichardt v. Flynn, 823 A.2d 566 (Md. 2003) (recognizing the privilege where high
(Lcontinued)
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between immunity and the privilege’s underlying policy pertaining to the unencumbered
resolution of claims in a judicial (or quasi-judicial) setting. See generally Brody, 87 Cal.
App. 3d at 732 (“[C]ommunications to an official agency, which are designed to induce
the agency to initiate action, are as much a part of the ‘official proceeding’ as
communications made after the agency commences proceedings.” (emphasis altered)).
No similar nexus exists in the present case.7
Nor do we find Addis’s advocacy persuasive. The judicial privilege is a defense
raised by the defendant. See Pa.R.C.P. 1030(a); Greenberg, 427 Pa. at 517, 235 A.2d
at 579. As such, any costs associated with litigating the issue arise when the defendant
asserts the privilege and the plaintiff challenges it. It can hardly be the law that a
plaintiff is prohibited from challenging a defense raised by the defendant because there
are costs to litigating its merits. As for Addis’s observation that, once the privilege is
held to apply, the speaker’s intent in making the statement is immaterial: this is true as
far as it goes, but it does not address the question raised here concerning whether the
defendant’s intent is properly taken into account in ascertaining if the privilege applies in
the first instance.
Classifying the issue as a question of law does not alter our analysis. Assuming
Addis’s characterization in this respect is accurate, as a general proposition the
(continuedL)
school students and their parents met with the principal and accused a sports coach of
violating school district policy); Brody v. Montalbano, 87 Cal. App. 3d 725 (Cal. Ct. App.
1978) (finding that the privilege applied where parents of schoolchildren wrote a letter to
the board of education – and ultimately filed a formal complaint – alleging that the vice-
principal had mishandled an incident at school); Weissman v. Mogol, 462 N.Y.S.2d 383
(N.Y. Sup. Ct. 1983) (applying the privilege where parents of schoolchildren filed a
grievance with the school board concerning alleged malfeasance by a teacher).
7
We need not presently determine whether the privilege would attach in Pennsylvania
in the circumstances which arose in those extra-jurisdictional cases.
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resolution of legal issues in specific cases may depend on the facts involved. See, e.g.,
Mitchell v. Zoning Hearing Bd., 838 A.2d 819, 826 (Pa. Cmwlth. 2003) (“The issue of
whether the proposed use constitutes an accessory use is a question of law to be
determined based on the underlying facts.”). As evidenced by the above Pennsylvania
decisions where the judicial privilege was held not to apply, the reviewing court
considered facts such as whether the declaration was made in the course of judicial
proceedings and/or whether it was relevant to the relief sought.
Finally, we do not believe that accounting for Addis’s intent in the present
scenario is improper simply because there may be a spectrum of possible intended
outcomes in other cases. The privilege only applies relative to judicial proceedings – or,
for present purposes, quasi-judicial proceedings. See supra note 2. Reviewing courts
are capable of discerning whether a particular proceeding fits that description.
Furthermore, as discussed, Addis testified that she did not intend for O’Bannon to relay
her comments to the school and, as such, did not contemplate that Schanne would be
subject to any proceedings or otherwise suffer employment-related consequences.
Thus, postulating a range of intended outcomes has little relevance to the present
controversy.
We pause at this juncture to observe that this opinion should not be construed as
attempting to resolve the distinct question of whether a privilege should pertain for
schoolchildren who report misconduct by school employees while they are enrolled.
That situation is qualitatively different from the present one inasmuch as schoolchildren
are generally less sophisticated than adults as to matters of protocol and procedure,
and they are in a substantially weaker position than adults in terms of their ability to
protect themselves from unjust treatment at the hands of school employees. Accord
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Weissman, 462 N.Y.S.2d at 387.8 Here, however, Addis was 26 years old and had
graduated from high school more than seven years earlier when she communicated
with O’Bannon. Therefore, such considerations do not apply with equal force.
For the foregoing reasons, in response to the certified question we hold that the
judicial privilege does not apply to an allegation made by an adult before
commencement of any quasi-judicial proceeding and without an intent that it lead to a
quasi-judicial proceeding.9
The matter is returned to the Third Circuit.
Messrs. Justice Eakin and Baer and Madame Justice Todd join the opinion.
Mr. Justice Eakin and Madame Justice Todd file concurring opinions.
Mr. Justice Stevens files a dissenting opinion.
8
In such circumstances, extending immunity to a schoolchild who reports misconduct
may be justified for policy reasons. Unlike the judicial privilege, however, the distinctive
school setting does not inherently pertain to the core functions of the judicial branch.
Moreover, it involves unique issues applicable to minors. Accordingly, the outlines of
any such privilege may be best suited for determination in a legislative forum where all
policy concerns can be discussed and any pertinent research can be presented and
analyzed. See Lance v. Wyeth, 624 Pa. 231, 264-65 & n.26, 85 A.3d 434, 454 & n.26
(2014) (recognizing that the General Assembly’s ability to examine social policy issues
and balance competing concerns is superior to that of the judicial branch). See
generally Sprague v. Walter, 518 Pa. 425, 435, 543 A.2d 1078, 1082-83 (1988) (listing
legislatively-created privileges); Robert Catz & Jill Lange, Judicial Privilege, 22 GA. L.
REV. 89, 98 (1987) (“Today, new privileges are created by statutes[.]”).
9
It may be noted that, even absent application of the privilege, the burden of proof as to
all elements of the tort of defamation is borne by the plaintiff, see 42 Pa.C.S. §8343(a);
see also id. §8344 (requiring the plaintiff to establish malice or negligence as a
prerequisite to recovery), and various defenses may be available to the defendant such
as truthfulness or justification. See id. §§8342, 8343(b).
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