[J-10-2015] [MO: Saylor, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

ROBERT SCHANNE, : No. 106 MAP 2014 : Appellant : Appeal from the U.S. Court of Appeals, : Third Circuit No. 12-4044 : v. : ARGUED: March 10, 2015 : : JENNA ADDIS, : : Appellee :

CONCURRING OPINION

MR. JUSTICE EAKIN DECIDED: August 17, 2015 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, § 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.

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