source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    121 A.3d 942
    COMMONWEALTH of Pennsylvania, Respondent v. Mark William MILLER, Petitioner.
    No. 83 MM 2015.
    Supreme Court of Pennsylvania.
    July 8, 2015.
   ORDER

PER CURIAM.

AND NOW, this 8th day of July, 2015, the Application for Leave to File Original Process is GRANTED, and the Petition for Writ of Habeas Corpus is DENIED.


author: Chief Justice SAYLOR. Justice EAKIN, Justice TODD, Justice STEVENS,

text:
    121 A.3d 942
    Robert SCHANNE, Appellant v. Jenna ADDIS, Appellee.
    Supreme Court of Pennsylvania.
    Argued March 10, 2015.
    Decided Aug. 17, 2015.

      Amal Muñas Bass, Esq., Terry L. Fromson, Esq., Carol E. Tracy, Esq., Women’s Law Project, Christiana Lynn Signs, Esq., Greenberg Traurig, LLP, James Norman Boudreau, Esq., Philadelphia, for Women’s Law Project, Amicus Curiae.
    Marcia Mary Waldron, Esq., for United States Court of Appeals, Third Circuit.
    Hon. Jane R. Roth (Sr.), pro se.
    Wayne Arlen Ely, Esq., Timothy M. Kolman, Esq., Lancaster, William Charles Sipio, Esq., Kolman Ely, P.C., for Robert Schanne.
    Stephen J, Britt, Esq., Donnelly & Associates, P.C., for Jenna Addis.
    SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
   OPINION

Chief Justice SAYLOR.

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’Ban-non 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 improper about their relationship. During Ad-dis’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, 84 L.Ed.2d 494 (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 Ad-dis’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, 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 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, 627 Pa. 244, 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’Ban-non 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.

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. 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 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, 111 L.Ed.2d 1 (1990))). See generally Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966) (recognizing that “[sjociety 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 Bochet to v. Gibson, 580 Pa. 245, 251, 860 A.2d 67, 71 (2004). 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 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.

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 (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, 288 Md. 1, 415 A.2d 292, 294 (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 Disciplinary Board of this Court, and opposing counsel’s client—accusing counsel of unethical behavior during the course of an ongoing tidal. 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 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, 627 Pa. at 245, 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 plaintiffs right to obtain recompense for any injury to his or her reputation.

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, 835 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. Kmkower, 439 F.3d 755, 760 (D.C.Cir. 2006) (stating that, for the judicial privilege to apply in a defamation ease, “litigation [must be] truly under serious consideration” (internal quotation marks omitted)); 50 Am. Jur.2d Libel & Slander § 282 (2015) (same).

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. Under such a predicate, there is a colorable nexus 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, 151 Cal.Rptr. 206 (“[Cjommunications 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.

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 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 Weissman, 462 N.Y.S.2d at 387. 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.

The matter is returned to the Third Circuit.

Justices EAKIN, BAER and TODD join the opinion.

Justices EAKIN and TODD file concurring opinions.

Justice STEVENS flies a dissenting opinion.

Justice EAKIN,

concurring.

I join the majority’s analysis and result. I write only concerning speculation by my colleagues about a different result being possible, had appellee been a student at the time of her allegations. Respectfully, the purpose and applicability of the judicial privilege is not related to appellee’s status; categorizing her as a student, past or present, or any other denomination, is irrelevant to application of this discrete privilege. The applicability of the judicial privilege depends on the existence of, or potential for, judicial-related proceedings at the time of utterance. Restatement (Second) of Torts, § 588 cmt. e (stating “the rule ... applies only when ... a proceeding ... is actually contemplated in good faith and under serious consideration by the witness” (emphasis added)). It matters not whether the speaker is old or young, tall or short, a student, teacher, doctor, lawyer, or Indian Chief.

This is not to say a broader privilege to speak out should not be afforded to students. However, if a privilege to encourage reporting based on status rather than circumstance is appropriate, that privilege should be articulated clearly and independently. No mere classification of the speaker creates a “judicial privilege,” and that venerable privilege should not be contorted to fit a prospectively desirable result, whatever its salience.

Justice TODD,

concurring.

I join the Majority Opinion. I write separately to emphasize that my position is firmly tied to the peculiar factual circumstances of the instant case. As noted by the majority, Jenna Addis was 26 years old and had been out of high school for more than 7 years when she told Susan O’Bannon that she had a relationship with Robert Schanne while she was a high school student. Had Addis been a student at the time she confided in O’Bannon, I might very well have reached a different result.

Justice STEVENS,

dissenting.

In comparison with other serious crimes, sexual misconduct victims of any age all too infrequently report their perpetrators due to systemic biases that disproportionately cast suspicion and blame upon them. The absolute judicial privilege should attach where, as here, a former student confides that she was sexually victimized by a school official to another school official who feels professionally obligated to report the statement to educational authorities, provided those details have a bearing on subsequent quasi/judicial proceedings. Therefore, under these circumstances, the student is the witness-declarant and the educational official is a possible party to the proceeding. The fact that Appellee could not mount the courage to name her alleged perpetrator until her twenties should not be used against her.

Section 588 of the Second Restatement of Torts holds:

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 Toets § 588 (1977) (emphasis added). Regarding “communications preliminary to a proposed judicial proceeding,” comment (e) notes:

[T]he 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 or to provide immunity for defamation when the possibility is not seriously considered.

Id. at cmt. e (emphasis added). Since the main definition designates the “witness” as declarant, it follows that the “possible party” may be the recipient. Comment (e) further clarifies that the intentions of the party-recipient may have a bearing on whether the privilege attaches to the witness-declarant.

In relation to Appellee, the majority characterizes Susan O’Bannon as “a friend who was employed by Lower Merion High School.” Majority Opinion, at 548, 121 A.3d at 943. However, the subjective nature of Appellee and O’Bannon’s relationship is ultimately irrelevant. Independent of their friendship, O’Bannon was Appellee’s ninth grade biology teacher and remains an educational professional who, upon reflection, felt obligated to report Appellee’s allegations to educational authorities. As observed by the District Court, “[h]ad the allegation failed to produce such a reaction and no proceeding ever took place, its status as a privileged communication would be more problematic.” Schanne v. Addis, 898 F.Supp.2d 751, 756 n. 4 (E.D.Pa.2012).

Here, Appellee’s statements were “allegations that the school district seriously considered, investigated, and initiated a proceeding over....” Id. After O’Bannon relayed Appellee’s allegations to the appropriate authorities, Appellee fully cooperated with the ensuing investigation.

Appellant was not bereft of remedy, as he could, and did, file a grievance against the school district for wrongful discharge. The onus should be on school officials to conduct a thorough and responsible investigation before undergoing quasi/judicial proceedings.

I thereby respectfully dissent.

      . 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, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365, 368 (1990).

      . 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).

      . 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.

      , 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 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, at 563-64, 121 A.3d at 953. 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.

      . 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., 179 Cal.App.3d 408, 231 Cal.Rptr. 113, 119 n. 5 (1986), overruled on other grounds by Silberg v. Anderson, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365 (1990)). The dissent attempts to counteract this reasoning by suggesting that O’Ban-non was "a possible party to the proceeding.” Dissenting Opinion, at 563, 121 A.3d at 953. 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.

      . 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, 374 Md. 361, 823 A.2d 566 (2003) (recognizing the privilege where high 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, 151 Cal.Rptr. 206 (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, 118 Misc.2d 911, 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).

      . We need not presently determine whether the privilege would attach in Pennsylvania in the circumstances which arose in those extra-jurisdictional cases.

      . 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[J”).

      . 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).


text:
    121 A.3d 954
    ALABAMA INSURANCE GUARANTY ASSOCIATION, Objector, v. RELIANCE INSURANCE COMPANY IN LIQUIDATION (Ancillary Matter to in re: Reliance Insurance Company in Liquidation, No. 1 Rel 2001). Appeal of Alabama Insurance Guaranty Association, Objector.
    Supreme Court of Pennsylvania.
    Aug. 17, 2015.
   ORDER

PER CURIAM.

AND NOW, this 17th day of August, 2015, the Order of the Commonwealth Court is AFFIRMED.


text:
    121 A.3d 954
    Lamarr SISTRUNK, Petitioner, v. COMMONWEALTH of Pennsylvania, Taylor Williams, Esq., Thomas L. Kearney, Esq., Superior Court of Penn MD, Common Pleas Court of York and Magistrate Judge Nixon # 19-1-05, Respondents.
    No. 93 MM 2015.
    Supreme Court of Pennsylvania.
    Aug. 19, 2015.
   ORDER

PER CURIAM.

AND NOW, this 19th day of August, 2015, the Application for Leave to File Original Process is GRANTED, the Petition for Writ of Prohibition is DENIED, and the Prothonotary is DIRECTED to strike the name of the jurist from the caption.


text:
    121 A.3d 954
    COMMONWEALTH of Pennsylvania, Respondent v. Michael R. VEON, Petitioner. Commonwealth of Pennsylvania, Respondent v. Michael R. Veon, Petitioner.
    Supreme Court of Pennsylvania.
    Aug. 20, 2015.
   ORDER

PER CURIAM.

AND NOW, this 20th day of August, 2015, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by petitioner, are:

(1) Whether the Pennsylvania conflict of interest law is unconstitutionally vague on its face, and whether as applied in this case the trial court improperly expanded the definition of “private pecuniary interest” to include “intangible political gain,” thereby threatening the constitutional rights of all elected officials in Pennsylvania.
(2) Whether the restitution ordered in this case was improper[ ] because the Commonwealth cannot be a victim under the subject criminal statutes.


text:
    121 A.3d 955
    ROBINSON TOWNSHIP, Washington County, Pennsylvania, Brian Coppola, Individually and In His Official Capacity as Supervisor of Robinson Township, Township of Nockamixon, Bucks County, Pennsylvania, Township of South Fayette, Allegheny County, Pennsylvania, Peters Township, Washington County, Pennsylvania, David M. Ball, Individually and In His Official Capacity as Councilman of Peters Township, Township of Cecil, Washington County, Pennsylvania, Mount Pleasant Township, Washington County, Pennsylvania, Borough of Yardley, Bucks County, Pennsylvania, Delaware Riverkeeper Network, Maya Van Rossum, the Delaware Riverkeeper, Mehernosh Khan, M.D. v. COMMONWEALTH of Pennsylvania, Pennsylvania Public Utility Commission, Gladys M. Brown, In Her Official Capacity as Chairman of the Public Utility Commission, Office of the Attorney General of Pennsylvania, Kathleen Kane, In Her Official Capacity as Attorney General of the Commonwealth of Pennsylvania, Pennsylvania Department of Environmental Protection and John Quigley, In His Official Capacity as Secretary of the Department of Environmental Protection. Petition of Pennsylvania Independent Oil & Gas Association, Possible Intervenor.
    No. 89 MM 2015.
    Supreme Court of Pennsylvania.
    Aug. 20, 2015.
   ORDER

PER CURIAM.

AND NOW, this 20th day of August, 2015, the Application to Intervene to Enforce the Judgment of the Supreme Court of Pennsylvania is DENIED.

Justice STEVENS did not participate in the consideration or decision of this matter.


text:
    121 A.3d 956
    MIIX INSURANCE CO. in Rehabilitation GHS-Parkview Hospital, Petitioners v. Scott EPSTEIN, D.O. and Renee Marie Bender, D.O., Respondents.
    Supreme Court of Pennsylvania.
    Aug. 21, 2015.
   ORDER

PER CURIAM.

AND NOW, this 21st day of August, 2015, the stay is DISSOLVED, and the Petition for Allowance of Appeal is DISMISSED.


text:
    121 A.3d 956
    Donald R. SISSON and Mary Sisson, his Wife, Petitioners v. Joseph STANLEY, his Heirs, Successors, Executors, Assigns, and any Persons Claiming by, through, or from them, Respondents.
    Supreme Court of Pennsylvania.
    Aug. 25, 2015.
   ORDER

PER CURIAM.

AND NOW, this 25th day of August, 2015, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issue set forth below. Allocatur is DENIED as to all remaining issues. The issue is:

Whether the Superior Court erred when it affirmed the trial court’s decision granting the rule to show cause, opening the judgment, and granting judgment on the pleadings, where the trial court conducted its own investigation of public records and decided disputed issues of material fact without evidence in the certified record to support those decisions.


author: PER CURIAM. Justice EAKIN, Justice STEVENS,

text:
    121 A.3d 956
    COMMONWEALTH of Pennsylvania, Appellant v. Tiffany Lee BARNES, Appellee.
    Supreme Court of Pennsylvania.
    Argued March 11, 2015.
    Decided Aug. 25, 2015.
    Kimberly Ann Butts, Esq., Elmer D. Christine Jr., Esq., Monroe County District Attorney’s Office, for Commonwealth of Pennsylvania.
    Robert Michael Buttner, Esq., Scranton, for Tiffany Lee Barnes.

      Jules Epstein, Esq., Philadelphia, David Rudovsky, Esq., Kairys, Rudovsky, Messing & Feinberg, LLP, for PA Association of Criminal Defense Lawyers, Amicus Curiae.
   ORDER

PER CURIAM.

AND NOW, this 25th day of August, 2015, the Order of the Superior Court is AFFIRMED.

Justice EAKIN flies a dissenting statement in which Justice STEVENS joins.

Justice STEVENS flies a dissenting statement.

Justice EAKIN,

dissenting.

I respectfully dissent from the per curiam affirmance of the Superior Court’s order. This result affirms the proposition that a police officer’s activation of overhead lights on a patrol car automatically creates an investigative detention of those in the area; if reasonable suspicion is not extant, turning on those lights is per se an unconstitutional act of detention, tainting everything that follows. This is a head-scratchingly terrible result, which should not be given approbation by this court’s affirmance.

At approximately 3:00 a.m. in a dark and rural area, a passing state trooper saw appellee pull her vehicle off the roadway and park between two auto dealerships that had long been closed for the night. She turned off her car’s lights; she did not activate her four-way blinkers. Seeing this obviously anomalous action given the time and place, the trooper pulled behind her vehicle, activated his overhead lights, and got out to approach on foot. At this point, appellee got out of her vehicle, unbidden, and the officer immediately noticed strong indicia of intoxication, eventually leading to sobriety tests and a BAC test showing a level of 0.22% (nearly three times the statutory limit).

The rationale of both the trial court and Superior Court was that the use of overhead lights amounted to a seizure because it caused appellee to feel less than free to leave; as there was no articulable suspicion of criminal activity when the lights went on, the officer’s actions were deemed unconstitutional. The issue is thus whether an officer without articulable suspicion may constitutionally turn on the overhead lights before approaching a car; to affirm this suppression order, one must find the officer was not allowed to do so, on pain of violating the Constitution.

In the first place, both the Superior Court and the suppression court applied the wrong analytical standard; this fundamental error alone calls for reversal. Both courts relied significantly on subjective testimony. See Commonwealth v. Barnes, 96 A.3d 1084 (Pa.Super.2014) (unpublished memorandum at 8-9); Suppression Court Opinion, 12/5/12, at 7 (“[T]he arresting officer has conceded that [appellee] was not free to leave once he pulled behind [her] and turned on his overhead lights. [Appellee] also testified that she did not feel free to leave when this occurred. We find these circumstances weigh heavily in favor of finding an investigatory detention.”). This was error.

Subjective views are immaterial to these determinations. Commonwealth v. Lyles, 626 Pa. 343, 97 A.3d 298, 302 (2014) (citation omitted). The trial court erred in considering them as factors, and the Superior Court did as well, even after citing the proper standard: an objective test. Under the correct analytical test, what the parties thought is irrelevant; what must be conducted is “an objective examination of the totality of the surrounding circumstances.” Id. (citing Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 889 (2000)), No single factor is determinative of whether a seizure occurred. Id. (citation omitted). The totality-of-the-circumstances test “ultimately center[s] on whether the suspect has in some way been restrained by physical force or show of coercive authority.” Id. (citation omitted). While citing proper law, the Superior Court made no totality examination beyond the use of lights, the subjective and understandable acknowledgement by the officer that her driving away after his approach would cause him to find out why, and appellee’s subjective reaction (apparently the lights specifically triggered the legal talismanic phrase, “Gosh, now I am no longer free to leave!”).

Beyond the wrong standard, the syllogism of the courts below is a model of paralysis by analysis. The analysis goes like this: as appellee said she did not feel free to leave, she was subject to detention, and as the officer did not articulate a basis for detention, his action in turning on his lights was “coercive authority” without justification, violative of her constitutional rights. The paralysis is that this officer apparently had only two constitutionally permitted options: either (1) pull in behind her very quietly, so he would not alert the driver to his identity in the dark, at 3 a.m., ignoring the manifest safety risks and the likelihood of scaring the driver half to death when he popped out of the dark; or (2) ignore the vehicle altogether and go blissfully down the road thinking, “Gee whiz, I wonder what that was all about.” The latter would be a dereliction of duty; the former is a good way to give the driver a heart attack or to get the officer shot.

The words “feel free to leave” are a catchphrase, a shorthand mantra when assessing whether a seizure occurred—if a reasonable innocent person would not feel free to end the encounter and leave, there is a seizure. See, e.g., Strickler, at 889 (citation omitted). This has always been problematic in the area of traffic stops, where one is not immediately free to leave but knows that the interaction will be relatively brief, not really an arrest at all. But see Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (“[Shopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of th[e Fourth and Fourteenth] Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.” (citations omitted)).

Here, there was no stop. If an officer’s mere approach of persons not in motion were to be held inherently coercive in and of itself, analysis would be simple, but such an approach is not objectively coercive, and caselaw says so. Neither is it the law that the use of overhead lights can only be a per se, mandatory “you are under detention and no longer free to leave” order, leaving no other objective possible conclusion; yet that is what the courts below would have.

This is the mischief of subjective versus objective reaction. The subjective reaction when you are intoxicated may be “uh oh” and you properly worry about discovery and detention; when your car is disabled, the subjective reaction is “Thank goodness, help has arrived.” Clearly, subjective reactions, necessarily subject to many variables, cannot be the test. The objective test therefore looks more broadly, and requires more than an act that may engender entirely dissimilar reactions. Activating lights can provoke different reactions, but it does not constitute objective unconstitutional behavior that allows every accused to say “I didn’t feel free to leave,” thus comprising recognized detention and illegality, absent articulable suspicion. Objectively, lights equal identification, and identification as an officer does not constitute coercive authority.

Thus, when the courts below concluded the use of lights comprised an investigative detention that required reasonable suspicion, they erred; the Constitution was not violated just because the officer activated his lights without suspecting criminal activity. Objectively, all this officer did was park behind appellee’s vehicle with his overhead lights on. He had obvious reason to do so, but did nothing to block her vehicle. He did not restrain her movement or interrupt her travels. He did not cause her to pull over, and he did not direct her to her chosen stopping place, a gravel pull-out between two closed businesses at three o’clock in the morning. He did not brandish a weapon or do anything else to show force. He did not give her orders. The use of the overhead lights was the single objective factor bearing on the alleged unconstitutionality of the officer’s actions. That this is found to be a constitutional violation indicates the myopic nature of the subjective “I didn’t feel free to leave so I was illegally detained” analysis applied here.

There being no other objective factors before appellee exited her car and demonstrated her intoxication, let us consider the use of the overhead lights. The lights served two obvious and significant purposes. First, the lights were turned on for everyone’s safety, alerting other motorists to their roadside presence in the middle of a dark, rural night. N.T. Pre-Trial Hearing, 6/22/12, at 10 (“I wanted to be visible at that point for our safety in case other vehicles came down that road,”). Second, the officer’s overhead lights identified him as a police officer, whose sudden and otherwise unidentified appearance in an unlit and empty area in the wee hours of the morning would likely create considerable fear in the occupants of the vehicle.

However, according to the courts below, a reasonable citizen must apparently ignore these legitimate and justified reasons for the lights, Instead of thinking, “Oh, thank goodness, that car isn’t a rapist; it’s an officer—and good, he’s got his lights on for safety,” the single objective conclusion a reasonable innocent person is permitted to make is that if the lights go on, they are being detained. But see Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa.Super.2004) (“It is one traditional function of State Troopers, and indeed all police officers patrolling our highways, to help motorists who are stranded or who may otherwise need assistance. Such assistance is to be expected, and is generally considered welcome.”). Given the utility of the lights in identifying the approaching officer, and keeping the officer, appellee, and all passing motorists safe, it is unreasonable to find engaging the overhead lights escalated this encounter into an investigatory detention. See Commonwealth v. Au, 615 Pa. 330, 42 A.3d 1002, 1008 (2012) (“In terms of the use of the arresting officer’s headlights and flashlight [to illuminate the parked vehicle], this was in furtherance of the officer’s safety, and we conclude it was within the ambit of acceptable, non-escalatory factors.”).

Suppression is primarily a tool to deter illegal governmental actions—denying the government the fruits of illegal searches or seizures. However, suppression is not a reward for those who sell truncated analysis that weaves leaden facts into syllogistic gold. If you cannot point to the officer’s conduct and say “Here is a forbidden, illegal act,” suppression will not lie. I cannot in good faith point to such a place here. Where was the illegality? Did the officer somehow run afoul of the law by stopping to check on this car? Can it really be that the officer’s use of overhead lights was unconstitutional behavior? Can one explain to a citizen exactly what this officer did wrong, what act precluded prosecution of this case? Can one do so looking them in the eye?

Every once in a while, courts must step back from talismanic phrases and look at the reality of what is being announced as the law. If the officer acted illegally here, every officer in the Commonwealth stands to violate the Constitution every night, and this simply can never be the law. This officer acted completely reasonably and did not violate appellee’s constitutional rights, and courts should not simply parrot snippets of analysis, creating a result that is both myopic and illogical.

As this decision should not stand, I cannot join the per curiam decision affirming it.

Justice STEVENS joins this dissenting statement.

Justice STEVENS,

dissenting.

At stake in this case is the safety of the public as well as the safety of police officers who pull over a vehicle. By activating overhead lights behind a pulled over vehicle, the driver is alerted that there is a law enforcement officer behind them and passing motorists are alerted there is a police officer and stopped vehicles alongside the road. Moreover, if this Court establishes a rule of law preventing or discouraging police officers from activating overhead lights in a vehicle stop, how does the police officer signal the driver to pull over?

Any driver, in this case a female driving alone, on a deserted highway in the early morning hours would be alarmed to have a vehicle pull up behind them not knowing whether it is a police officer or a random person who might have criminal activity in mind.

I would specifically hold that a police officer activating emergency lights on a police vehicle does not turn a mere encounter into an investigative detention. Thus, I would reverse the decision of the Superior Court.

The Court summarily affirms, without opinion, the Superior Court’s determination that the suppression court properly granted Appellee Tiffany Lee Barnes relief after finding she was subjected to an unlawful investigative detention when Trooper Jason Rogowski approached Appellee’s stationary vehicle and activated the overhead lights on his patrol car. By not issuing an opinion, this Court does not give guidance to the lower courts as to how in this case the encounter ripened into an investigative detention nor does it give guidance to the lower courts or to members of law enforcement as to what standard applies to any case in which police emergency lights are activated. Because I believe the lower courts failed to objectively review the totality of the circumstances and ignored the relevant policy consideration of the protection of both the driver and officer in a late night interaction in an unlit location, I respectfully dissent as I conclude Trooper Rogowski lawfully and appropriately initiated a mere encounter that required no suspicion of criminal activity.

The relevant facts are not in dispute. On March 18, 2012, at approximately 3:00 a.m., Trooper Rogowski was traveling on Route 447 in Monroe County in his patrol car when he observed a Jeep Liberty turn onto Fawn Road, immediately pull off to the side of the road, and turn off all of its lights. The driver parked on a gravel area between two car dealerships that were closed for business given the early hour. In deciding to check on the vehicle’s occupant, Trooper Rogowski had dual suspicions that the driver was either experiencing vehicle failure or was about to engage in criminal activity due to the time and the vehicle’s proximity to the closed dealerships.

Trooper Rogowski pulled behind the stationary vehicle and turned on his overhead lights. As Trooper Rogowski approached on foot, Appellee began to open her driver’s door to exit her vehicle. Once Trooper Rogowski began speaking with Appellee, he immediately detected a strong odor of alcohol emanating from her vehicle and noticed her slurred speech and bloodshot eyes. Appellee consented to sobriety testing, which she failed. After Trooper Rogowski arrested for Driving Under the Influence (DUI), Appellee submitted to a blood test, which revealed her BAC was 0.22%.

Charged with DUI and summary traffic violations, Appellee filed a suppression motion arguing that Trooper RogowsM had subjected her to an unlawful seizure by conducting an investigative detention unsupported by reasonable suspicion of criminal activity. After a hearing, the suppression court granted Appellee’s motion and dismissed all the charges. Acknowledging that Trooper RogowsM’s activation of his overhead lights was not sufficient itself to show a seizure had occurred, the suppression court found that two circumstances “weighed heavily in favor of finding an investigatory detention”: (1) Trooper Rogowski was motivated in part by his suspicion that Appellee was about to engage in criminal activity and (2) both Trooper RogowsM and Appellee expressed their beliefs that Appellee was not free to leave. In addition, the suppression court found Trooper RogowsM had no objective reason to believe Appellee needed aid as she did not drive slowly or activate her hazard lights. Upon determining that Trooper Rogowski had initiated an investigative detention, the suppression court further concluded that he did not have reasonable suspicion to justify this seizure.

On appeal, the Superior Court affirmed the suppression court’s decision to grant Appellee’s motion. In concluding that Trooper RogowsM’s interaction with Appellee constituted an investigative detention, the Superior Court focused on the fact that Trooper Rogowski admitted he suspected Appellee may have had a criminal purpose for stopping her vehicle and emphasized Trooper Rogowski and Appellee’s subjective opinions that Appellee was not free to leave. Moreover, the Superior Court determined that the suppression court correctly found that Trooper Rogowski did not have reasonable suspicion to support an investigative detention as he did not offer any specific observations which would allow him to reasonably conclude that criminal activity was afoot.

This Court granted the Commonwealth’s petition for allowance of appeal, limiting review to the question of whether the lower courts erroneously concluded that the interaction between Trooper Rogowski was an investigative detention, requiring reasonable suspicion, as opposed to a mere encounter, requiring no suspicion at all. While appellate review of the grant of a suppression motion requires deference to the suppression court’s findings of fact as long as they are supported by the record, the suppression court’s legal conclusions are reviewed de novo. Commonwealth v. James, 620 Pa. 465, 475, 69 A.3d 180, 186 (2013).

To determine whether a citizen has been subject to an unreasonable seizure in violation of the Fourth Amendment, we analyze three categories of interactions between citizens and the police:

The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable cause.

Commonwealth v. Reid, 571 Pa. 1, 26, 811 A.2d 530, 544-45 (2002) (citation omitted).

This Court and the United States Supreme Court have consistently held that officers do not violate the Fourth Amendment by merely approaching an individual in a public place and asking the individual questions or requesting identification. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“mere police questioning does not constitute a seizure”); Terry v. Ohio, 392 U.S. 1, 34, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (White, J., concurring) (not every encounter between police officers and citizens amounts to a seizure; “there is nothing in the [federal Constitution] which prevents a policeman from addressing questions to anyone on the streets”). In distinguishing a mere encounter from an investigative detention, the suppression court must evaluate whether “consider[ing] all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” Commonwealth v. Lewis, 535 Pa. 501, 509, 636 A.2d 619, 623 (1994). “In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.” Commonwealth v. Strickler, 563 Pa. 47, 59, 757 A.2d 884, 890 (2000).

Before this Court, the Commonwealth reiterates its claim that the interaction between Trooper Rogowski and Appellee was a mere encounter. Relying on this Court’s decision in Commonwealth v. Au, 615 Pa. 330, 339-40, 42 A.3d 1002, 1008 (2012), the Commonwealth notes that, in the scenario where an officer approaches a stationary vehicle, our courts engage in a fact-specific review of the totality of the circumstances to determine whether a reasonable person would feel not free to leave based on coercive aspects of the officer’s conduct, including, but not limited to, the restraint of liberty or movement, use of physical force, intimidating language, a show of authority, or a mandate demanding compliance.

In this case, the Commonwealth emphasizes Trooper Ro-gowski pulled his patrol car behind Appellee’s vehicle and did not block or direct her movement in any way. The Commonwealth also points out that Trooper Rogowski did not brandish a weapon or make any intimidating statements or movements that demonstrated force. The Commonwealth contends that Trooper Rogowski’s activation of his overhead lights was a non-escalatory factor furthering safety, as Trooper Rogowski explained that he turned on the lights to make his patrol car visible to approaching drivers. The Commonwealth argues Appellee should have reasonably expected that the responding trooper was approaching to offer assistance given Appellee was parked on the side of the road at a late night hour and troopers have a duty to aid motorists in need.

While the lower courts repeatedly acknowledged that suppression claims must be reviewed objectively in light of the totality of the circumstances, both the suppression court and Superior Court’s opinions relied heavily on Trooper Rogow-ski’s candid admission that, while he believed that Appellee may have needed aid for possible vehicle failure, he also suspected Appellee was engaged in criminal activity. Both courts also found critical that Trooper Rogowski and Appellee both believed that Appellee was not free to leave.

The lower courts’ reliance on the parties’ subjective beliefs was improper as “subjective intent is irrelevant so long as there is objective justification for the police officer’s actions[.]” Strickler, 563 Pa. at 64, 757 A.2d at 893 (citing Ohio v. Robinette, 519 U.S. 33, 35, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (citation omitted)). In reviewing suppression motions, the key to an objective analysis is to give due consideration to the reasonable impression given to the individual approached rather than the subjective views of the officers or the person who has allegedly been seized. Cf. Commonwealth. v. Sherwood, 603 Pa. 92, 117, 982 A.2d 483, 499 (2009) (emphasizing the “[t]he test for custody is an objective one that focuses on the reasonable impression conveyed by the actions of the police to the person being questioned”).

Absent the subjective beliefs of Trooper Rogowski and Appellee, which are impermissible considerations, the suppression court failed to establish how the encounter ripened into an investigative detention. As a seizure does not occur when an officer merely approaches an individual in public and questions the individual, it was permissible for Trooper Ro-gowski to approach Appellee’s vehicle on the side of the road and inquire if she needed aid and to discover her purpose for pulling off at this location late at night. As noted by the Commonwealth, Trooper Rogowski did not block Appellee from leaving, direct her movement in any way, speak in an authoritative or threatening tone, or display any show of authority to restrain Appellee. When Trooper Rogowski spoke to Appellee, she immediately showed indicia of being under the influence of alcohol, as she had slurred speech, bloodshot eyes, and had a strong odor of alcohol emanating from her vehicle, giving him reasonable suspicion to detain her to investigate whether to place her under arrest for DUI.

Thus, it appears that the only factor which arguably could have escalated the initial encounter into an unlawful investigative detention was Trooper Rogowski’s activation of the overhead emergency lights on his patrol car. While the activation of overhead lights may be a factor for the suppression court to consider in determining whether a reasonable person would have felt free to leave, a totality of the circumstances review requires that no single factor should dictate the ultimate conclusion as to whether a seizure has occurred. Strickler, 563 Pa. at 59, 757 A.2d at 890.

Moreover, in the situation presented in this case, where a motorist in a stationary vehicle is approached in an unlit, remote location at an early morning hour by a responding officer, the activation of the patrol car’s overhead lights furthers the safety of both the officer and the motorist. The flashing overhead lights notify oncoming drivers of the vehicles’ presence on the side of the road and signal to the motorist that an officer has arrived to offer assistance. These lights help assure the motorist of safety by distinguishing between the arrival of a responding officer and an unknown vehicle of a stranger who may not have the motorist’s best interests in mind. As a result, in many circumstances, citizens come to recognize the activation of a patrol car’s overhead lights as a reasonable response in allowing officers to meet their duty of providing assistance to stranded motorists or drivers that otherwise need assistance. Therefore, the activation of the patrol car’s overhead lights, standing alone, did not ripen the instant mere encounter into an investigative detention.

Accordingly, when applying the suppression court’s findings of fact to the established precedent governing similar claims, I find that Trooper Rogowski did not subject Appellee to an unlawful seizure, but responded appropriately in approaching her vehicle to render aid and inquiring as to her reasons for stopping at this location and hour. Accordingly, I would reverse the Superior Court’s decision affirming the order granting Appellee’s suppression motion, reinstate the applicable charges, and remand for further proceedings.

      . Let us not forget that the thankful stranded motorist will seldom be in court to remind us of this alternate reaction to an officer’s approach— we only hear the others. Ironically, it is the officer’s approach that gives the innocent motorist hope that soon they can leave.

      . While Appellee was charged with a traffic violation under 75 Pa.C.S, § 4305 ("Failure to Turn on Vehicular Hazard Signals"), Trooper Rogowski admitted that Appellee had not violated this section, which only requires a driver to activate hazard signals on a “highway,” whereas Appellee parked on a gravel area to the side of the road.