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BARTON L. POST v. M. MARK MENDEL (03/27/86)

decided: March 27, 1986.

BARTON L. POST, APPELLANT,
v.
M. MARK MENDEL, APPELLEE



Appeal from Judgment of the Superior Court at No. 1639 Philadelphia 1983, filed December 12, 1984, affirming in part and quashing in part an Order dated May 12, 1983 entered May 19, 1983 in the Court of Common Pleas of Philadelphia County, Pennsylvania, Trial Division, Law, at No. 6957 August Term, 1982; Nix, C.j., and Flaherty, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., did not participate in the consideration or decision of this case. McDermott, J., did not participate in the consideration or decision of this case. Papadakos, J., filed a dissenting opinion.

Author: Flaherty

[ 510 Pa. Page 214]

OPINION OF THE COURT

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).

[ 510 Pa. Page 215]

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

[ 510 Pa. Page 216]

    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 ...


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