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GUSTINE J. PELAGATTI v. JILL R. COHEN (11/30/87)

filed: November 30, 1987.

GUSTINE J. PELAGATTI, ESQ., INDIVIDUALLY AND GUSTINE J. PELAGATTI, P.C., APPELLANT,
v.
JILL R. COHEN, ESQ., GREGORY M. HARVEY, ESQ., MORGAN, LEWIS & BOCKIUS, PHILADELPHIA NATIONAL BANK, DAVID H. MARION, ESQ., KOHN, SAVETT, MARION & GRAF, P.C. AND GREGORY T. MAGARITY, ESQ., AND WOLF, BLOCK, SCHORR & SOLIS-COHEN



Appeal from the Order of the Court of Common Pleas, Philadelphia County, Civil Division, at No. 2029 July 1984.

COUNSEL

F. Emmett Fitzpatrick, Jr., Philadelphia, for appellant.

Jonathan Wheeler, Philadelphia, for Cohen, appellee.

Marc J. Sonnenfeld, Philadelphia, for Harvey, appellees.

James J. McCabe, Jr., Philadelphia, for Marion, appellees.

Bernard M. Borish, Philadelphia, for Magarity, appellees.

Brosky, Tamilia and Johnson, JJ. Johnson, J., files a concurring opinion.

Author: Brosky

[ 370 Pa. Super. Page 425]

This is an appeal from an order sustaining preliminary objections, in the nature of a demurrer, to a fourteen-count complaint, and dismissing said complaint with prejudice. Appellant now raises six allegations of trial court error.

[ 370 Pa. Super. Page 426]

Upon review of the record below, and the arguments of counsel, for the reasons set forth herein, we affirm the dismissal of Counts I through VIII, and Counts XIII and XIV as to all appellees. We affirm the dismissal of Counts IX through XII as to appellees Cohen, Magarity, PNB, and the three appellee law firms, but reverse the dismissal of Counts IX through XII as to appellees Marion and Harvey, and remand for further proceedings consistent with this opinion.

The matter before us arises from a rather complex and bizarre history, which has recently been discussed in part in the related case of Cohen v. Pelagatti, 364 Pa. Super. 573, 528 A.2d 657 (1987). The relevant portion of that history is as follows: On April 12, 1983, the Honorable Bernard Snyder of the Philadelphia Court of Common Pleas handed down a decision in the case of National Auto Brokers Corporation ("NABOR") v. Philadelphia National Bank ("PNB"), Philadelphia County, December Term, 1974, No. 1179, awarding the NABCOR plaintiffs a multi-million dollar verdict. NABCOR had been represented by Gustine Pelagatti, Esquire; PNB had been represented by Gregory M. Harvey, Esquire, of the law firm of Morgan, Lewis and Bockius.

On May 6, 1983, in an unrelated case, Edgehill v. Municipal Publications, Philadelphia County, May Term, 1972, No. 2371, Judge Snyder again awarded a multi-million dollar plaintiff's verdict. A motion for Judge Snyder's disqualification was filed by Municipal's attorney, David Marion, Esquire, of the firm of Kohn, Savett, Marion, and Graf. On July 14, 1983, the motion was heard before Judge Snyder. Marion called Jill R. Cohen, Esquire, to testify in support of recusal. Cohen had been Judge Snyder's law clerk while the NABCOR and Edgehill decisions were pending, and was prepared to testify that both NABCOR counsel Pelagatti and Edgehill's counsel, M. Mark Mendel,*fn1 had improperly colluded with Judge Snyder prior to verdict. An offer of proof as to the substance of Cohen's proposed testimony

[ 370 Pa. Super. Page 427]

    was made in chambers. The testimony was disallowed; that afternoon, however, Marion called a press conference, in which he gave a detailed accounting of the substance of Cohen's disallowed testimony. Both Cohen and her attorney, Gregory Magarity, Esquire, of the firm of Wolf, Block, Schorr, and Solis-Cohen, declined public comment. As a result of Marion's conference, however, Cohen's allegations were publicly disseminated through several newspaper articles and television newscasts.

On July 18, 1983, Cohen signed an affidavit, prepared by Marion, stating that she was prepared to give sworn testimony in conformity with Marion's July 14 offer of proof. That same day, Gregory Harvey, counsel for PNB in the NABCOR case, telephoned Pelagatti, and indicated that he intended to use Cohen's affidavit, and Marion's offer of proof attached thereto, as the basis for a motion requesting that NABCOR be reopened, and that Judge Snyder be disqualified from further participation in NABCOR.

On August 5, 1983, Pelagatti attempted by phone to dissuade Harvey from taking such action, by relating that he had information that "a Jill Cohen" had been a mental patient at Fairmount State Hospital in May, 1981. He further indicated to Harvey that he would further investigate the background of law clerk Jill Cohen, to determine if the two Jill Cohens were the same person, if Harvey filed a motion for recusal based on Cohen's July 18 affidavit.

On August 9, 1983, Harvey informed Pelagatti that he would be filing a motion for recusal anyway, and using Cohen as a witness in support thereof. As a result, Pelagatti began that same day to issue ex parte subpoenas, under the NABCOR caption, to obtain Cohen's educational records, in order to determine if Cohen had taken a medical leave of absence in May, 1981, or had had a history of mental illness during her school years.

On August 18, 1983 Cohen's attorney Gregory Magarity phoned Pelagatti's office, and informed Pelagatti's employee, Stephen W. Bruccoleri, Esquire, that he strongly objected to the ex parte subpoenas, and wanted Pelagatti to stop

[ 370 Pa. Super. Page 428]

    issuing subpoenas and making remarks characterizing his client as the "Jill Cohen" from Fairmount Farms. He further requested a letter from Pelagatti, stating Pelagatti's position as to the issuance of said subpoenas, and confirming Pelagatti's phone remarks to Harvey connecting Magarity's client to Fairmount Farms. In response, Pelagatti that day submitted a letter to Harvey under the NABCOR caption, and forwarded a carbon copy of said letter to Magarity. Upon receipt of Pelagatti's letter, Harvey wrote a reply letter, indicating what he believed to be inaccuracies in Pelagatti's account of their phone conversation, and accusing Pelagatti of an "abuse of (the) process" in the issuance of the ex parte subpoenas. Additionally, Harvey contacted Frederick N. Tulsky, a reporter with the Philadelphia Inquirer, and spoke with him concerning the subpoenas.

On the following morning, August 19, 1983, an article by Tulsky appeared in the Inquirer, discussing the subpoenas at some length. The article also made mention, once again, of the substance of Cohen's disallowed testimony, and contained Harvey's personal comments that Pelagatti's actions were "an abuse of process" and "exactly the conduct which (was) described" in Cohen's testimony. Cohen, Pelagatti, and Magarity did not comment in the Tulsky article; however, to protect Cohen from further harassment, Magarity obtained a temporary restraining order from the Honorable Berel Caesar. The order precluded Pelagatti from issuing any further subpoenas to obtain Cohen's records, and from publishing any further statements connecting Cohen with Fairmount Farms.

On the morning of August 20, 1983, Magarity filed a one million dollar lawsuit, on Cohen's behalf, against Pelagatti and the NABCOR plaintiffs, alleging defamation, invasion of privacy, abuse of process, and intentional infliction of emotional distress. Later that day, another Tulsky article appeared in the Inquirer, reporting the filing of Cohen's suit, and the issuance of the temporary restraining order the previous day. This Tulsky article did contain some

[ 370 Pa. Super. Page 429]

    comments from Magarity, who referred to Pelagatti's use of subpoenas as "improper" and "possibly illegal".

Pursuant to Judge Caesar's restraining order, preliminary injunction hearings were held before the Honorable Harry A. Takiff, on August 24, 1983 and September 7, 1983. On September 16, 1983, Judge Takiff granted Cohen's request for a preliminary injunction, and forbade Pelagatti from issuing further subpoenas requesting Cohen's records, reviewing and/or disseminating any information in the records acquired prior to the restraining order, or otherwise invading Cohen's privacy.*fn2 The events of the hearing, and the contents of Judge Takiff's Memorandum and Order, were reported in various newspaper articles.

On October 15, 1983, Gregory Harvey filed a motion for the recusal of Judge Snyder from further involvement in the NABCOR proceeding. The motion was supported by David Marion's July 14 offer of proof in the Edgehill recusal hearings, and Cohen's July 18 affidavit.

On October 18, 1984, Pelagatti filed a fourteen-count civil action against: (1) Jill Cohen, (2) Gregory Harvey, (3) Harvey's firm, Morgan, Lewis, and Bockius, (4) Harvey's client, PNB, (5) David Marion, (6) Marion's firm Kohn, Savett, Marion, and Graf, (7) Gregory Magarity, and (8) Magarity's firm, Wolf, Block, Schorr, and Solis-Cohen. The counts alleged were as follows:

Counts I, II: Conspiracy to Obstruct Justice

Counts III, IV: Obstruction of Justice

Counts V, VI: Conspiracy to Interfere with Contractual Relationship

Counts VII, VIII: Interfering With Contractual ...


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