Post v. Mendel

213 case Remp, below. Commonwealth v. 338 Pa.Superior 423, 436, 487 (1985) J., Ct. A.2d (Rowley, dissent- ing). A.2d 351 POST, Appellant,

Barton L. MENDEL, Appellee. M. Mark Pennsylvania. Supreme Court Argued Dec. 1985. 27, 1986. Decided March Sullivan, Jr., F. Philadelphia, William for appellant. Mendel, Daniel E. M. for Murray, Mark Philadelphia, appellee. NIX, C.J., FLAHERTY, HUTCHINSON,

Before PAPADAKOS, ZAPPALA and JJ. THE

OPINION OF COURT FLAHERTY, Justice.

This is an from order Court appeal Superior an part by Philadelphia affirmed in an which order entered of Common Pleas in in response complaint plaintiff-appellant Post, Esq. filed L. trespass Barton Mendel, (1984). 485 A.2d 1176 Pa.Super. Post amended, counts complaint trespass, lodged as two The Mendel, M. Mark defendant-appellee Esq. against It is in libel and the second in slander. first count sounded count, libel, is appeal that the instant with the first only the plaintiff with that count concerned. connection $20,000, as well damages excess sought compensatory damages. equal exemplary amount punitive libel, on to the assertion of a claim based regard With had that defendant complaint there was an averment letter, plaintiff was addressed to composed a as a member of plaintiffs integrity which disparaged copies had profession, and that defendant sent legal Kelton, 1.) George judge the Honorable T. letter and defendant were plaintiff before whom County Bucks counsel, 2.) Discipli- litigation as opposing embroiled 3.) Supreme Pennsylvania, Court of nary Board M.D., the plaintiff H. an client of William letter, litigation. and a witness the Bucks County Mendel, Ltd.,” Mark read which bore the letterhead “M. follows:

September Post, Esquire Barton L.

Post and Schell

12th Floor Washington Square 210 West Philadelphia, Pa. 19106 Trial. During

Re: the Course of This Your Conduct Dear Mr. Post: anger heat calm pass

I have the to and under allowed reflection, you during I did have re-assessed what insinu- you Beller course of the examination Dr. when different and that reports the doctor had two ated that to attempted convey to reports, two different there were had done an use that the doctor jury by reports when, in reports two different by writing unethical act one reports, fact, there were two different you knew that at requested to other. One was being supplement your Toensmeier, the insistence of Mr. partner, Arthur and Dr. Beller while was testifying, you objected my to straightening out, the matter stipulate refused to that the letters, (Nos. 1, three which are now Court exhibits 3) existed, stipulate, and refused to compounding your nefarious tactics in violation of the Canons that those Thus, letters your existed. refusal to acknowledge what had you patent, act, done was a deceptive, nefarious calculated to deceive Court and mislead the jury. There have since that occurrence five trial days you comported since in an yourself unlawyerlike manner compounded and have now the matter deceiv- only Court, ing the allowing expert but an himself perjure your assistance and aid. While Dr. Simon was on stand, upon inquiry you represented whether or not him, engaged and you give asked the Court to him certain instructions or that you wished to confer with him. Dr. elected, Simon after the him gave opportunity candidly him, indicate and reveal your representation of bias, fact effect prejudice which would his to deny when, fact, representation such you represented 5, 1981, him since March in the matter of Mildred Wilson ah, v. William H. Simon et Court of Pleas of Common Philadelphia County, Term No. February 4306. You stood idly by jury while and the Court were Court, an officer deceived. As that conduct is abhorrent and is a violation of four 1-101 Canons—D.R. —maintaining of integrity competence profes- sion; conduct; D.R. 7-106—trial improprie- D.R. 9-101— 7-102, 5, D.R. ty; you Sections and wherein concealed failed to disclose knowingly you that which are required by you law reveal where used knowingly perjured testimony you false evidence and where in knowingly your presence allowed false statement of fact, and remained law silent. circumstances, I I hereby

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

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

/s/ M. Mark Mendel M. Mark Mendel MMM/cb

cc: Disciplinary Board of the Supreme Court George Honorable T. Kelton William H. M.D.

In response complaint’s to the assertion of a claim based libel, on filed defendant in the nature preliminary objections of a demurrer asserting that “the alleged defamatory words absolutely privileged they were disclosed [were] connection a judicial proceeding.” The Court of Com- mon Pleas agreed that the remarks contained in the letter and, hence, absolutely privileged, were it dismissed with prejudice portion complaint setting forth a claim Superior for libel. Court affirmed the dismissal of that claim. primary issue to in the instant appeal be addressed is

whether the courts below determined that properly matters set protected forth in the letter subject were privilege, absolute under the principle judicial immunity. long It has been established that statements contained pleadings, as well as statements made the actual trial or argument case, Fort, of a privileged. Kemper are (1907), Pa. 67 A. 991 analyzed and reviewed field, and, at great length the authorities in this fashion, develop- history set forth a comprehensive from which excerpt That an privilege. history, ment of times follows, early demonstrates that has from protection integral communications that role in play afforded justice: course pursuing ordinary Coke, anything time of England, In as far back as the absolutely privi- in legal proceedings or written was said IV, Dixon, p. Part Reports, In Cutler and Coke’s leged. to “that if one exhibits articles adjudged, it was containing against person, a certain peace justices misdemeanors, not concern- only and great divers abuses others, all themselves, and petitioners many but ing good to his to the intent that he should be bound behavior; shall not have for party in this case the accused upon the any in such articles action any matter contained case, ordinary course Justice they pursued for have in such case; permitted if should in such actions cases, complaint, cause of would just those who on infinite And complain to for fear of vexation.” dare Wood, “It was resolved page, Buckley the same in the curiam, matter contained bill any totam that for per lies, court, said no action examinable that was false, it was merely the matter is because although Lofft, 55, Skinner, on justice.” King course of In The defendant, against the the indictment quash a motion peace, was who, majesty’s justices his as one of him in a before having grand jury said to charged with seditious, “You are county, sessions of general Lord Mansfield scandalous, jury,” corrupt perjured counsel, witness, or jury party, “Neither remarked: answer, for civilly criminally, put can be judge, oppro- spoken If the are in office. words spoken words case, take notice of the court will irrelevant to a brious If on information. and examine contempt, as a them enquiry it will be is found on such of mala mens anything times, in recent comparatively suitably.” punished action held that no Smith, it was 86 E.C.L. Revis v. him, made man for a statement lie will voce, course of a in the or viva by affidavit whether though it to have judicial proceeding, even any made and without “falsely maliciously, been or cause.” That case was followed probable reasonable Broomhead, 569, 4 v. H. & N. and it was by Henderson lie for by Crompton, there said J.: “No action will words in spoken any judicial proceeding. or written the course of it, In find the rule spite of all that can be said we upon acted from the earliest times. The mischief would if person aggrieved, preferring immense the instead of into a complaint an indictment for could turn his perjury, in this appears civil action. universal assent it By Cresswell, J., out, in such lies. country pointed no action (E.C.L.R. 86), that the Smith, Revis v. 18 C.B. 126 vol. if the rule inconvenience is much less than it would be great rule origin were otherwise. The was if in courts of justice mischief that would result witnesses to the liberty speak freely, subject only were not at court____ animadversion of the The rule is inflexible spoken that no action lie for or written will words may course of Another case that giving evidence.” 540, 1 where cited is Seaman v. L.R. C.P.Div. Netherclift, “Now, long course by Coleridge, it was said Lord C.J.: known, authorities, as the perhaps of which the best (2 remarkable, Burr. most is the case of v. Astley Younge 807), brought has decided that no action of slander can be for either any by parties statement made case____ I or But pleadings during the conduct of the certain, quite now point conceive law on this to be in the although experience profession most men of any proceed- must seen instances in many judicial ings parties made to them to serve the ends have been certain, however, It is nor private malignity. equally raised, question privilege has ever been that the any in the conduct parties they say is confined to what do or of the case.” 88-90, A. The historical basis for

219 Pa. at 67 at 992-93. privilege length Kemper, was described at exhaustive and, demon- foregoing excerpt history as the from that

220

strates, long there has a realm recognized protected judicial communications in proceedings. Commonwealth, protection for such communica firmly

tions is established. As stated Greenberg Co., 511, 514, 576, Aetna Insurance 427 Pa. 235 A.2d 577 denied, (1967), cert. 392 U.S. 88 S.Ct. 20 L.Ed.2d (1968), matters, “When libelous or defamatory statements, or allegations and averments in pleadings or trial argument of a case are pertinent, relevant suit, and material to any issue a civil there is no civil liability making for of them.” any See also Kemper v. Fort, 85, 93, (1907) (statements 219 Pa. A. in plead ings privileged). The instant case differs from the bulk of those heretofore by decided this Court that the defamation did not in this instance occur in the pleadings in the argument Rather, actual trial or of a case. defamation took the form of an extra-judicial communica tion which was issued the course of trial. during

In deciding whether the privilege type extends to the extra-judicial communication which this case it presents, is necessary policy underlying first to consider the the exist- ence of the privilege. v. Greenberg Aetna Insurance Co., 515-516, 578, Pa. at 427 235 A.2d at this Court noted that the is an of a privilege integral part public policy suitors, permits wicked, all however bold however virtu- timid, ous and to secure access to the justice courts of claims, false, fictitious, present whatever true or real or seek to To they adjudicate. assure such claims are resolved, justly it is essential that pertinent issues be aired by a manner that is unfettered the threat of libel or slander being suits filed. As stated 427 Pa. Greenberg, 516, Fort, (quoting Kemper at 235 A.2d at 578 v. 219 Pa. at 94, 994), 67 A. at

“Justice can administered are only parties per- be when mitted to in the courts and to plead freely aver whatever fear of if a ought consequences, to be known without pertinent material and averment should be sustained. it is Wrong may party, at times be done to a defamed but absque injuria. damnum The inconvenience the indi- must yield good vidual to a rule for the of the general public.” for the justifications privilege explained were further Publications, Inc., 319, Triangle

Binder Pa. 323- (1971), stated, 275 A.2d where this Court The reasons privilege for the absolute are recog- well nized. A judge must be free to administer the law fear of consequences. without This independence would impaired were he to in daily apprehension privilege defamation suits. The is also extended par- courts, ties to afford freedom of access to the to witness- encourage complete es to their and unintimidated testimo- court, and to counsel to him ny represent enable to best Likewise, his client’s interests. the privilege exists be- cause the courts have other internal sanctions statements, defamatory such as perjury contempt pro- ceedings.

Thus, the privilege exists because there is a realm of communication essential to the exploration legal claims that would be hindered there not the afford- protection were ed privilege. protected The essential realm of com- not, however, Rather, munication is without bounds. protected realm has traditionally regarded as com- posed only of those communications which are issued in the course and are regular judicial proceedings per- which of tinent and material to the redress or Kem- sought. relief 93, 994-95; 219 Pa. at 67 A. at 427 per, Pa. at Greenberg, 578; Felix, 262, 235 A.2d at 250 Pa.Super. Barto (1977), dismissed, appeal A.2d 927 487 Pa. 409 A.2d 857 (1980) (although privileged, statements briefs are coun- press sel’s reiteration of the contents of his brief at a conference held the remarks privileged not because were judicial proceeding). not made at a alleged We do not the letter in regard defamatory regular the instant case as issued in the course having been pertinent of as a communication and judicial proceedings made sought. Although material to the redress the letter trial, ongoing in an to matters which occurred reference proceedings. relevant to the court directly not letter was issuance of the letter was do not believe Accordingly, we immunity was judicial of activities which sphere within license for is not a protect. privilege to designed defamation, potential is unnecessary and there extra-judicial case are if sort written letters of the for abuse are available impunity. procedures Formal with published of the letter grievances which the writer to address extra-judicial resort to defamation. without perceived, Kelton, rather Judge not addressed to but The letter was him. The letter did not state sent to copy merely was any ruling it request did not any legal position, argue request Nor did the communication the court. by or action considered contained in it should even be that anything part judicial not a of the clearly The letter was the court. reference, merely for- it made to which proceedings make it a to the court did not of the letter warding copy Likewise, of forwarding copies proceedings. those part client, H. William alleged letter to plaintiffs M.D., Supreme Board of the Disciplinary and to the trial part letter a did not render the Pennsylvania copies of those would transmittal proceedings, of trial. affect the course expected have been logically of issues airing an unfettered Thus, promoting policy that the letter holding our infringed by is not at trial judicial outside the ambit in this case was published immunity. held, the letter was not if, that as we have argued

It is proceedings course of the judicial part published of the letter referred, publication letter then which other such proceedings, to other respect with privileged was in an brought might those being which proceedings with charging plaintiff Board Disciplinary action before might misconduct, proceedings other professional client, H. William charging plaintiffs brought (Sec- Restatement Citing the Simon, M.D., perjury. judicial (1977), asserts ond) defendant of Torts § immunity applicable is to communications prelimi- which are nary proposed judicial proceedings. The Restatement (Second) Torts, states: §

An at law is attorney absolutely privileged to publish defamatory matter concerning another communications to a preliminary proposed judicial or in proceeding, of, institution during of, the course part and as a a judicial proceeding counsel, which he participates as if it has some relation to the proceeding. added).

(Emphasis Whether challenged communication published is to, prior during, a judicial proceeding, it must bear a certain relationship to the proceeding so as to it qualify as privileged. is, That relationship case, in either the same. As discussed supra, in reference to communications made during judicial proceedings, it is necessary that a protected communication have pertinent been and material to the sought redress and that the communication have been is regular sued course of the proceedings. Similarly, respect with to communications made prior to the institution of proceedings, the protected communication would need to pertinent and material and would need to have been issued in regular preparing course of for contem plated proceedings. standard, Evaluated the instant letter does not qualify privileged respect proceed ings which might brought against be plaintiffs alleged client, Simon, M.D., William H. or against plaintiff himself.

In any upon action based perjury might brought be against plaintiff’s client, it would not pertinent, material, and in regular course of procedure to send copies present letter to Kelton Judge and to the Disciplinary Further, characterizations, Board. as dis- tinguished alleged facts, from set forth the letter describ- ing plaintiff unprofessional as an and a nefarious attorney piranha and liar perjury proceed- would be relevant to a ing Similarly, William H. M.D. action any upon professional based might misconduct which brought against plaintiff proceeding Discipli- before the material, in the Board, pertinent, not it would

nary a letter of copies to forward procedure course of regular H. Kelton and to William Judge one to present the such as the letter to short, published In defendant M.D. in of interest either had no direct who would persons have ensued. Publication might the which proceedings therefore, was, privileged. not persons letter to such the Pleas, defend- sustaining in Thus, the Court Common libel, sounding the count to objections preliminary ant’s immunity precluded judicial that erroneously determined dismissing that count. to that respect liability to plaintiff opportunity count, court did not afford the facts per- additional allege to certain complaint his amend that action, in the belief apparently to the libel taining was immunity since judicial futile would be amendment that suit. It is established any such barring as perceived there is some where should not be withheld to amend leave can be complaint in a that defects possibility reasonable Mutual v. American amendment. Otto through cured (1978). Accord- Co., 482 Pa. 393 A.2d Insurance insofar Superior of the Court the order we reverse ingly, to action, and remand the dismissal of libel it affirmed the consistent with proceedings for Pleas of Common the Court decision. our reversed, case remanded Court Superior

Order Pleas. the of Common to consideration LARSEN, J., participate did not this case. decision of in the consideration

McDERMOTT,J., participate did case. of this or decision dissenting opinion.

PAPADAKOS, J., filed a Justice, dissenting. PAPADAKOS, that conclusion Majority’s from the dissent I must course regular in the not sent was communication subject Appellant. proceedings contemplated for preparing clearest indicates, in the communication reading A that the letter itself language, Appel- was notice possible filing charges against Appellee was him with the lant The letter itself formal complaint Board. is the Disciplinary against Appellant which was forwarded to the Board. The judge of the letter the trial and Dr. Simon copies were material, regular procedure course of pertinent, these individuals were involved im- because of Appellant conduct and could well be called proper very upon Disciplinary investigation Appel- Board its complaint. Accordingly, they clearly lee’s had an interest might ensue proceedings Disciplinary before I would hold this as made protected Board. communication (Restatement prior proceedings to the institution Torts, 586) Superior and would affirm the order of Court. §

507 A.2d 357 Pennsylvania, Appellee, COMMONWEALTH McGAGHEY, Appellant. James Supreme Pennsylvania. Dec. 1985.

Submitted Decided March 1986.

Case Details

Case Name: Post v. Mendel

Court Name: Supreme Court of Pennsylvania

Date Published: Mar 27, 1986

Citation: 507 A.2d 351

Docket Number: 1639

Court Abbreviation: Pa.