OPINION BY MR. JUSTICE COHEN, March 24, 1958:
On this appeal we are called upon to review the action of the trial court in dismissing on preliminary objections plaintiff's complaint brought against the individual defendants, (the Deputy Commissioner of Public Property of Philadelphia, and the City Architect), and against the City of Philadelphia on the theory of respondent superior, for defamatory statements allegedly made by these officials in the course of their duties.
Plaintiff, Joseph W. Montgomery, trading as Montgomery Construction Company, a building contractor, undertook to construct a police station and a combined police and fire station for the city. It is alleged that on January 21, 1957, the individual defendants in response to a reporter's questions concerning the city's delay in utilizing these stations stated that the buildings had been faultily constructed and were not erected in conformity with the building plans and specifications. The defendants further stated that as a result of their unsatisfactory experience with the plaintiff,
The city filed preliminary objections asserting immunity to suit because the acts of its agents complained of were done in the performance of a governmental function. The individual defendants also filed preliminary objections contending that as governmental officers acting within the scope of their official duties, they were absolutely privileged in making the allegedly defamatory statements. The objections of all defendants were sustained by the court en banc, and the complaint dismissed for failure to state a cause of action.
On this appeal assuming that the statements complained of were defamatory, that they were made by the individual defendants, and that the defendants were responsible for their publication, we proceed to
The defense of privilege in cases of defamation "rests upon the . . . idea, that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation." Prosser, Torts 607 (2nd ed. 1955). Thus, the law recognizes that it is essential that true information shall be given whenever it is reasonably necessary for the protection of certain interests of the public. "In order that such information may be freely given, it is necessary to afford protection against liability for misinformation given in an honest and reasonable effort to protect or advance the interest in question. Were such protection not given, true information which should be given or received would not be communicated through fear of the persons capable of giving it that they would be held liable in an action of defamation unless they could meet the heavy burden of satisfying a jury that their statements were true." 3 Restatement, Torts, Ch. 25, Topic 3, Scope Note (1938). When for the public good and interest of society a communication should be published it is said to be made on an "occasion of privilege" and the defamatory statement is itself "qualifiedly" or "conditionally" privileged. See 3 Restatement, Torts § 593 (1938); 53 C.J.S., Libel and Slander § 89 (1948). So, communications made by any public officer in the performance of his official duties are held to be made on an occasion of privilege. 53 C.J.S., Libel and Slander § 113 (1948). See also Matson v. Margiotti, 371 Pa. 188, 193-194, 88 A.2d 892 (1952); Barry v. McCollom, 81 Conn. 293, 70 Atl. 1035 (1908); Peterson v. Steenerson, 113 Minn. 87, 129 N.W. 147 (1910); 3 Restatement, Torts § 598
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
Whereas qualified privilege could be successful only after a full trial, thus placing a government official at the whims and mercy of a jury, the purpose of absolute immunity is to foreclose the possibility of suit. ". . . [A]bsolute immunity is designed to protect the official from the suit itself, from the expense, publicity, and danger of defending the good faith of his public actions before a jury. And yet, beyond this lies a deeper purpose, the protection of society's interest in the unfettered discharge of public business and in full public knowledge of the facts and conduct of such business. Absolute immunity is thus a means of removing any inhibition which might deprive the public of the best service of its officers and agencies." Note, 20 U. of Chi. L. Rev. 677, 679 (1953).
In Spalding v. Vilas, 161 U.S. 483 (1896), the United States Supreme Court held that the doctrine of absolute privilege extended to officers of cabinet rank as well as to the president. Since that decision the lower federal courts have included many inferior executive positions within the protection of the principle,
It has been suggested that the determination of whether a particular public officer is protected by absolute privilege should depend upon the nature of his duties, the importance of his office, and particularly whether or not he has policy-making functions. Prosser, Torts supra, 782, 784. See also Barr v. Matteo, 244 F.2d 767 (D.C. Cir.), remanded, 2 L. Ed. 2nd 179 (1957); Colpoys v. Gates, 118 F.2d 16 (D.C. Cir. 1941); 3 Restatement, Torts § 591 (1938). In the present case the deputy commissioner of public property is vested with most of the powers of the commissioner including the overseeing of the performance of
The public interest demands that these city servants, the individual defendants, be encouraged to inform the community of the progress or the lack of progress of important public works paid for by the taxpayers. Further, the public has a legitimate concern with the reasons, if any, for apparently unreasonable delays in the performance of city contracts.
The action of the court below in dismissing the complaint on preliminary objection will be affirmed.
Mr. Justice MUSMANNO concurs in the result.
For, "the protection of the public requires not merely discussion, but information." Sweeney v. Patterson, 128 F.2d 457, 458 (D.C. Cir.), cert. denied, 317 U.S. 678 (1942).
"Indeed, such announcements [about activity of government agencies] serve a useful if not essential role in the functioning of the democratic processes of government." Glass v. Ickes, 117 F.2d 273, 278 n.9 (D.C. Cir. 1940), cert. denied, 311 U.S. 718 (1941).
"It has been argued, however, that free disclosure would be sufficiently encouraged by the granting of a qualified privilege. But often a person will be deterred from making communications by the risk that a trier of fact may find against him, even if he has acted reasonably and without malice. Moreover, since a qualified privilege does not eliminate the necessity of litigating questions of fact, such as improper motive or unreasonable conduct, the time and money required for this defense would also deter free disclosure. And in the case of public officials, time would be taken from performance of duties which are of importance to the public. . . ." Note, 69 Harv. L. Rev. 875, 917-918 (1956). The earliest statement of the purpose of the privilege appears in Chatterton v. Secretary of State for India in Council,  2 Q.B. 189, 191-192. Lord ESHER, M.R. said: "The reason for the law on this subject plainly appears from what Lord ELLENBOROUGH and many other judges have said. It is that it would be injurious to the public interest that such an inquiry should be allowed, because it would tend to take from an officer of state his freedom of action in a matter concerning the public weal. If an officer of state were liable to an action of libel in respect to such a communication as this, actual malice could be alleged to rebut a plea of privilege, and it would be necessary that he should be called as a witness to deny that he acted maliciously. That he should be placed in such a position, and that his conduct should be so questioned before a jury, would clearly be against the public interest, and prejudicial to the independence necessary for the performance of his functions as an official of state. Therefore the law confers upon him an absolute privilege in such a case."