Post v. Mendel

• Decision Date: 27 March 1986
• Citation: 510 Pa. 213,507 A.2d 351
• Parties: , 54 USLW 2525 Barton L. POST, Appellant, v. M. Mark MENDEL, Appellee.
• Court: Pennsylvania Supreme Court

Page 351

507 A.2d 351

510 Pa. 213, 54 USLW 2525

Barton L. POST, Appellant, v. M. Mark MENDEL, Appellee.

Supreme Court of Pennsylvania.

Argued Dec. 2, 1985.

Decided March 27, 1986.

[510 Pa. 214] William F. Sullivan, Jr., Philadelphia, for appellant.

Daniel E. Murray, M. Mark Mendel, Philadelphia, for appellee.

Before NIX, C.J., and FLAHERTY, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal from an order of the Superior Court which affirmed in part an order entered by the Philadelphia Court of Common Pleas in response to a complaint in trespass filed by the plaintiff-appellant Barton L. Post, Esq. Post v. Mendel, 336 Pa.Super. 467, 485 A.2d 1176 (1984). The complaint in trespass, as amended, lodged two counts against the defendant-appellee M. Mark Mendel, Esq. The first count sounded in libel and the second in slander. It is only with the first count, libel, that the instant appeal is concerned. In connection with that count the plaintiff sought compensatory damages in excess of $20,000, as well as an equal amount in punitive or exemplary damages.

With regard to the assertion of a claim based on libel, there was an averment in the complaint that defendant had composed a letter, which was addressed to plaintiff and which disparaged plaintiff's integrity as a member of the legal profession, and that defendant had sent copies of the letter to 1.) the Honorable George T. Kelton, a judge in Bucks County before whom plaintiff and defendant were embroiled in litigation as opposing counsel, 2.) the Disciplinary Board of the Supreme Court of Pennsylvania, and 3.) William H. Simon, M.D., an alleged client of the plaintiff and a witness in the Bucks County litigation. The letter, which bore the letterhead "M. Mark Mendel, Ltd.," read as follows:

September 17, 1981

Barton L. Post, Esquire

Post and Schell

12th Floor

210 West Washington Square

Philadelphia, Pa. 19106

Re: Your Conduct During the Course of This Trial.

Dear Mr. Post:

I have allowed the heat of anger to pass and under calm reflection, I have re-assessed what you did during the course of the examination of Dr. Beller when you insinuated that the doctor had two different reports and that there were two different reports, attempted to convey to the jury by use of the reports that the doctor had done an unethical act by writing two different reports when, in fact, you knew that there were two different reports, one being a supplement to the other. One was requested at the insistence of your partner, Mr. Arthur Toensmeier, and while Dr. Beller was testifying, you objected to my straightening the matter out, refused to stipulate that the three letters, which are now Court exhibits (Nos. 1, 2 and 3) existed, and refused to stipulate, compounding your nefarious tactics in violation of the Canons in that those letters existed. Thus, your refusal to acknowledge what you had done was a patent, deceptive, nefarious act, calculated to deceive the Court and mislead the jury.

There have been since that occurrence five trial days since you comported yourself in an unlawyerlike manner and have now compounded the matter by not only deceiving the Court, but allowing an expert to perjure himself with your assistance and aid. While Dr. Simon was on the stand, upon inquiry whether or not you represented him, you engaged and asked the Court to give him certain instructions or that you wished to confer with him. Dr. Simon elected, after the Court gave him an opportunity to indicate and candidly reveal your representation of him, a fact which would effect his prejudice and bias, to deny such representation when, in fact, you have represented him since March 5, 1981, in the matter of Mildred Wilson v. William H. Simon et al., Court of Common Pleas of Philadelphia County, February Term 1981, No. 4306.

You stood idly by while the jury and the Court were deceived. As an officer of the Court, that conduct is abhorrent and is a violation of four Canons--D.R. 1-101--maintaining of integrity and competence of the profession; D.R. 7-106--trial conduct; D.R. 9-101--impropriety; D.R. 7-102, Sections 3, 4 and 5, wherein you concealed and knowingly failed to disclose that which you are required by law to reveal where you knowingly used perjured testimony or false evidence and where you knowingly in your presence allowed a false statement of law and fact, and remained silent.

Under the circumstances, I hereby notice [sic] you that I intend to proceed with this matter to the Disciplinary Board irrespective of any outcome of this case. As an officer of the Court, I do not choose to practice with individuals who comport themselves in this manner and you are not fit to share a court room with any lawyer who at least has sufficient respect for the law to be at all times candid.

You may not like my style, but I do not lie, sir--something that you, throughout this trial, have done. This serves notice on you. Since you have said that I "try by intimidation," I assure you this is not intimidation; this is simply an obligation which I, as an officer of the Court, must fulfill so that piranhas like you are removed from the practice of the law.

Respectfully,

/s/ M. Mark Mendel

M. Mark Mendel

MMM/cb

cc: Disciplinary Board of the Supreme Court

Honorable George T. Kelton

William H. Simon, M.D.

In response to the complaint's assertion of a claim based on libel, defendant filed preliminary objections in the nature of a demurrer asserting that "the alleged defamatory words [were] absolutely privileged in that they were disclosed in connection with a judicial proceeding." The Court of Common Pleas agreed that the remarks contained in the letter were absolutely privileged, and, hence, it dismissed with prejudice the portion of the complaint setting forth a claim for libel. Superior Court affirmed the dismissal of that claim.

The primary issue to be addressed in the instant appeal is whether the courts below properly determined that the matters set forth in the subject letter were protected by an absolute privilege, under the principle of judicial immunity. It has long been established that statements contained in pleadings, as well as statements made in the actual trial or argument of a case, are privileged. In Kemper v. Fort, 219 Pa. 85, 67 A. 991 (1907), this Court analyzed and reviewed at great length the authorities in this field, and, in a comprehensive fashion, set forth a history of the development of the privilege. That history, an excerpt from which follows, demonstrates that protection has from early times been afforded communications that play an integral role in pursuing the ordinary course of justice:

In England, as far back as the time of Coke, anything said or written in legal proceedings was absolutely privileged. In Cutler and Dixon, Coke's Reports, Part IV, p. 14, it was adjudged, "that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behavior; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursued the ordinary course of Justice in such case; and if actions should be permitted in such cases, those who have just cause of complaint, would not dare to complain for fear of infinite vexation." And on the same page, in Buckley and Wood, "It was resolved per totam curiam, that for any matter contained in the bill that was examinable in the said court, no action lies, although the matter is merely false, because it was in course of justice." In The King v. Skinner, Lofft, 55, on a motion to quash the indictment against the defendant, who, as one of his majesty's justices of the peace, was charged with having said to a grand jury before him in the general sessions of the county, "You are a seditious, scandalous, corrupt and perjured jury," Lord Mansfield remarked: "Neither party, witness, counsel, jury or judge, can be put to answer, civilly or criminally, for words spoken in office. If the words spoken are opprobrious or irrelevant to a case, the court will take notice of them as a contempt, and examine on information. If anything of mala mens is found on such enquiry it will be punished suitably." In comparatively recent times, in Revis v. Smith, 86 E.C.L. 127, it was held that no action will lie against a man for a statement made by him, whether by affidavit or viva voce, in the course of a judicial proceeding, even though it be alleged to have been made "falsely and maliciously, and without any reasonable or probable cause." That case was followed by Henderson v. Broomhead, 4 H. & N. 569, and it was there said by Crompton, J.: "No action will lie for words spoken or written in the course of any judicial proceeding. In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies. Cresswell, J., pointed out, in Revis v. Smith, 18 C.B. 126 (E.C.L.R. vol. 86), that the inconvenience is much less than it would be if the rule were otherwise. The origin of the rule was the great mischief that would result if witnesses in courts of justice were not at liberty to speak freely, subject only to the animadversion of the court.... The rule is inflexible that no action will lie for words spoken or written in the course of giving evidence." Another case that may be cited is Seaman v. Netherclift, L.R. 1 C.P.Div. 540, where it was said by Lord Coleridge, C.J.: "Now, a long course of authorities, of which perhaps the best known, as the most remarkable, is the case of Astley v. Younge (2 Burr. 807), has decided that no action...