*3 ELLIOTT, SOLE, and FORD JJ. Before DEL JOHNSON JOHNSON, Judge: objec-
In this from an order appeal sustaining preliminary demurrer, in tions the nature of a we are asked to determine in grounded complaint whether an action defamation on a against attorney an submitted to the Special Fee Determina- Allegheny tion Committee of the Bar Association may judicial privilege. be dismissed on the basis of absolute or Concluding judicial privilege that does not we reverse apply, for proceedings. remand further Preiser,
Stanley Esquire, E. filed this civil action against Rosenzweig, attorney, Richard also an in averring his com- defamed, plaint that he had been both personally profes- “ lawyer, a ... sionally, by Rosenzweig ‘Complaint’ a to the Fee Dispute Allegheny submitted Committee of the County Bar Association.” Complaint Paragraph The trial court sustained Rosenzweig’s preliminary objections nature of a demurrer and entered an dismissing order action prejudice on the basis of absolute or privilege.
Preiser, who is practice attorney licensed as an our has, occasion, of Kentucky Virginia, sister states and West practice been admitted to hoc vice in this pro Commonwealth. Viola, Jr., In Preiser May had been retained Rocco also an attorney, represent Viola a criminal matter in the pending United States District Court for the Western District of Pennsylvania. Following dispute between Preis- er and over both manner Viola which Preiser was and the representing charged Viola fees to Viola for this representation, Viola discharged attorney Preiser as his *4 In August, 1990. November of Preiser filed a breach of against contract action Viola in the Circuit Court of the Judicial Circuit in and for County, Seventeenth Broward Florida, at Docket No. 90-82903. After retained Viola Ro- senzweig represent Preiser, to him in the dispute fee Rosenzweig prepared and submitted a on complaint Viola’s behalf, Viola, personally by Allegheny verified to the Bar Dispute Association Fee Committee. The Dispute Fee essence, complaint alleged, that Preiser had overcharged incurred, failed had expenses for and performed services Viola Para- had inefficient. properly his time and been to itemize Preiser by which Dispute Complaint, of the Fee graph 23 defamed, states, as follows: claims he was Preiser was Stanley that E. apparent It became to Viola by impairment or as evidenced suffering a mental emotional counsel, as as other his actions and treatment Viola well actions, behavior irrational unnecessarily his confrontational frivolous, unrelated energy of time and on wasting and the unlawyer- It this exhibition of unbalanced and matters. was E. discharge Stanley like that necessitated the behavior client, his to talk to Preiser from the case. Preiser refused in- Viola, occasions, lawyers on accosted other many overly in the case an abusive manner. volved R. 17a-18a. statements,
Preiser, contending published that these as 14, 1991, false on Dispute February the Fee Committee defamatory, brought against in defamation action objections assert- Rosenzweig. Rosenzweig preliminary filed Special Fee Complaint that the statements ing un- privilege are accorded absolute Determination Committee 19, 1991, the the laws of this Commonwealth. On June der objections and dismissed granted preliminary trial court absolutely determining the be complaint statements Griffiths, on the basis of Smith privileged 418, 476 This appeal A.2d followed.
First, that it is to raise the affir- improper Preiser asserts He “privilege,” preliminary objection. mative defense of by an be maintains that affirmative defense must “privilege” pursuant raised “new matter” Pa.R.C.P.
It is black-letter law that issues
raised in the
court are
and cannot be
for the
time
trial
waived
raised
first
302(a).
erroneously
Pa.R.A.P.
appeal.
party
Where
objections
rather
preliminary
asserts substantive defenses
matter,
than to raise these defenses
answer or
new
preliminary objections
of the
to file
opposing party
failure
objections, raising the erroneous
preliminary
the defective
*5
defenses,
procedural
waives the
defect and allows the trial
court to rule on the preliminary objections. Duquesne Slag
Lench,
Products v.
102,
Button v.
(1980);
490 Pa.
Next, we turn
scope
to our
review this matter.
In an appeal from an
sustaining
order
a preliminary objection
demurrer,
the nature of a
our
scope
review is plenary,
the same as that
used
the trial court: preliminary objec
tions which result in the dismissal of the suit or the denial of
claim,
should be
only
sustained
in cases which are clear
and free from doubt. 5
Pennsylvania
Standard
Practice 2d
§ 25.71 at 239-40.
any
Where
doubt exists as to whether a
sustained,
demurrer should be
it must be resolved in favor of
Criste,
v.
Kyle McNamara &
overruling
the demurrer.
631,
(1985);
Pa.
Preiser argues that the trial court erred in characterizing
the proceeding before the Special Fee Determination Commit-
tee of the Allegheny
Bar
Association as
proceeding. Preiser also contends that
the reliance of to accord the Com-
Griffiths, supra,
court on Smith
trial
Committee, “judicial
Fee Determination
filed
plaint,
*6
agree.
We
misplaced.
privilege,”
concerning judi-
this Commonwealth
The
case in
controlling
Mendel,
213,
351
510 Pa.
507 A.2d
is Post v.
privilege
cial
(1986).
Post,
to his trial
Mendel,
a letter
attorney,
an
sent
In
board,
trial
Post,
the
disciplinary
to the
copies
adversary,
action
Post
a defamation
one of Post’s clients.
filed
judge and
in the letter.
contained
Mendel based on statements
against
prejudice.
claim with
trial
the defamation
The
court dismissed
(1984),
Mendel,
467,
1176
336
485 A.2d
In Post v.
court,
that the statements
holding
court affirmed the trial
subject
judicial
Our
privilege.
to
in Mendel’s letter
defamatory
reversed, determining
“alleged
court
the
supreme
judicial
of
...
in the
course
regular
...
issued
[was not]
letter
and material to the
pertinent
as a communication
proceedings
sphere
the letter was not “within the
sought” and that
redress
designed to
judicial immunity
protect.”
was
of activities which
221-22,
Id.,
A.2d at
The
for the absolute
are well
privilege
reasons
must
law
of
A
be free to administer the
without fear
judge
impaired
would be
consequences.
independence
This
of
daily apprehension
were he to be
defamation suits.
to
to afford freedom
privilege
parties
The
is also extended
courts,
their
encourage
of access
witnesses
coun-
complete court
testimony
unintimidated
represent
to enable him to best
his clients interests.
sel
Id.,
221,
Triangle
at
Binder v.
quoting
Rosenzweig argues that adopt a broad approach in which the application privilege is not limited to *7 judicial formal proceedings. We decline to do so. As an court, intermediate appellate we are free to disregard the existing law of this Commonwealth and the decisions of our Dauphin supreme Deposit Bank and Trust Co. v. court. Toyota Corporation, Motor 256, Pa.Super. 258, 408 596 A.2d (1991). 845, 851 Rosenzweig attempts that Smith is argue to indistinguishable on the facts from the present case. We disagree. Smith concerned statements made to offi cers, a judge and a court-appointed master, special in a judicial proceeding. The present case involves statements made to neither a judge nor an appointed court, officer by the voluntary but a lawyers association of seeking to mediate a fee dispute.
Yet, it is not necessary that we decide which of these analyses is the one to be followed in Pennsylvania. We need not explore either the extent or the impact of a particular analysis. Such determinations are the prerogative of the Supreme moreover, Court of Pennsylvania; we are compelled to follow the Supreme Court decision in Post in factual situa- tions of the same class. We have held that:
Where Supreme the Court has spoken on a particular subject, it is our obligation, as an appellate intermediate court, to follow apply and that decision so as to establish stability our case law. of and predictability measure some a distinction between the legally of relevant In the absence us, we are of a case and the case before previous facts Court’s deci- Supreme to of the obliged follow the dictates Resolving by attempting cases case. prior sion the irrelevant, applica- the impedes distinctions factual create decisis, of is to function which principal of stare tion of predictabili- measure judicial system with some imbue development of the law a and stability, places ty constant, practition- of that neither uncertain state flux such can, any degree predictability, of judges nor trial ers of the law each new proper application determine It facts that comes before them. involving case similar different methods prerogative apply not our also made which clear analysis Supreme where Court applied particu- be to a analysis it believes should particular lar situation. Co., Elevator & Machine
Malinder Jenkins 421-22, 538 A.2d precepts, we have the record Mindful these reviewed Therefore, free although apply case. we would be different resolution of the analysis and obtain a different follow, us to precedent case if there no for we present are framework establish compelled analytical follow the Post, reach a similar conclusion. Supreme Court we record, are on our review of unable to Based *8 Dispute the Fee Committee as a Allegheny construe Post, authority find no based on Consequently, court. we judicial the of supra, support privilege, which would extension Court, to non- Pennsylvania Supreme the such by defined the judicial we reverse order of the proceedings. Accordingly, objections in sustaining the nature preliminary trial court the proceed- we case for further of a demurrer and remand this presented ings in the trial court. While other issues objections, Rosenzweig’s these by preliminary the trial court in subject any ruling by the trial court issues were not it Accordingly, inappropri- of this case. deem disposition ate for our Court to address such matters for the first time in appeal. this
The order of the trial court is reversed and the case is proceedings remanded for further consistent opinion. with this Jurisdiction is not retained. reversed,
Order case remanded. SOLE, J., DEL dissenting opinion. files a SOLE, DEL Judge, dissenting: The majority, upon judicial based the conclusion that the privilege does extend to such proceedings as the instant fee determination dispute, remanded the case for further proceedings the trial court. I disagree. required initially
Remand is because it apparent is not from Appellant participated record whether proceedings Special before the Fee Determination Committee of the Alle- gheny County Bar Association. governing The rules proceed- ings before the Committee require agreement of both parties participate the proceedings and to have their dispute by resolved Committee order for the determina- binding Therefore, tion to be both of upon them. the trial court must first determine whether Appellant agreed par- not, If ticipate. he did the determination is not binding upon him judicial immunity inapplicable.
However, if it is determined judicial that he did participate, immunity should extend to protect the interests served dispute alternative resolution proceedings such as the one in the instant case. Because such proceedings are designed to provide timely forum for and conclusive resolution of dis- putes, privilege the same immunity should be them, thus insuring efficiency extended the same inherent judicial process. Pennsylvania has no case law which prohibits the extension of immunity to alternative dispute resolution proceedings, public and its policy facilitating efficient and effective resolution of disputes would be served Therefore, by extending privilege. if parties both partici- pated proceedings so as to be bound by the determina- *9 made statements protect would extend tion, the privilege claim Appellant’s complaint, in the concerning Appellant be dismissed. would of defamation I dissent. respectfully A.2d 308 Pennsylvania
COMMONWEALTH ACIE, Appellant. Alonda Pennsylvania. Superior Court March 1992. Submitted Sept. Filed