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.