author: SHEPPARD, J.,

text:
    Grace Community Inc. v. KPMG Peat Marwick

      Albert A. Ciardi, for plaintiff.

      John W. Frazier, IV, Richard G. Placey, Michael Onufrak, Leonard G. Brown III, and Mary K. Brown, for defendants.
    April 8, 2002
   SHEPPARD, J.,

Before this court are petitions to transfer venue based on forum non conveniens filed by both Horst Construction Company and Clyde W. Horst and KPMG Peat Marwick. For the reasons discussed, the petitions to transfer will be granted.

BACKGROUND

Grace Community Inc. operated a continuing care retirement community, comprised of an independent living, an assisted living and a skilled nursing center in Lebanon County. The Grace facility was built by Horst during the years 1989 through 1991 in several phases and financed by several financial bonds.

From its inception until 1997, KPMG was Grace’s auditor and financial advisor. Specifically, KPMG performed several audits, feasibility studies, and advised Grace on certain financial and managerial matters.

This case arises from allegations of improper accounting work by KPMG, allegedly substandard construction of the Grace facility by Horst, and alleged unseemly conduct by Grace’s pre-1997 board members. On February 23, 2001, Grace commenced this action alleging breach of contract, negligence, and breach of fiduciary duty against KPMG, Horst, and former Grace board members.

On September 24, 2001, Horst filed this petition to transfer to Lebanon County. KPMG has joined in this petition.

DISCUSSION

In evaluating a petition to transfer venue on the grounds of forum non conveniens, “[a] plaintiff’s choice of forum is given great weight and a defendant has the burden in asserting a challenge to the plaintiff’s choice of venue.” Shears v. Rigley, 424 Pa. Super. 559, 564, 623 A.2d 821, 824 (1993). See also, Goodman by Goodman v. Pizzutillo, 452 Pa. Super. 436, 445, 682 A.2d 363, 367 (1996) (stating that a “party seeking a change of venue bears a heavy burden of justifying the request...”). Further, a petitioner must show that the proceedings in the chosen forum would be vexatious or oppressive:

“[T]he defendant may meet its burden of showing that the plaintiff’s choice of forum is vexatious to him by establishing with facts on the record that the plaintiff’s choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. . . Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute. But, we stress that the defendant must show more than that the chosen forum is merely inconvenient to him.” Cheeseman v. Lethal Exterminator Inc., 549 Pa. 200, 213, 701 A.2d 156, 162 (1997). (citations and footnote omitted) Finally, the defendant’s burden requires a demonstration of claimed hardships on the record, Jones v. Borden Inc., 455 Pa. Super. 110, 115, 687 A.2d 392, 394 (1996), although there is no necessity for an evidentiary hearing on a petition. Cheeseman, 549 Pa. at 213 n.8, 701 A.2d at 162 n.8.

To demonstrate vexatiousness or oppressiveness, a petitioner must provide a court with the names of witnesses who are to be called, a general statement of what their testimony will cover and what hardships the witnesses would suffer. Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 240 (Pa. Super. 1997). See also, Petty v. Suburban General Hospital, 363 Pa. Super. 277, 285, 525 A.2d 1230, 1234 (1987) (stating that “[i]f a party has merely made a general allegation that witnesses will be necessary, without identifying them and indicating what their testimony will be the application for transfer will be denied”) (footnote omitted); Hoose v. Jefferson Home Health Care Inc., 754 A.2d 1, 5 (Pa. Super. 2000) (stressing that “there is a vast difference between a finding of inconvenience and one of oppressiveness”). Furthermore, a defendant’s claims “that no significant aspect of the case involves the chosen forum, and that litigating in another forum would be more convenient ... do not amount to a showing that the chosen forum is oppressive or vexatious.” Cheeseman, 549 Pa. at 214, 701 A. 2d at 162.

Here, both KPMG and Horst have met their burden of demonstrating why litigating this matter in Philadelphia County is oppressive. To begin with, both parties point to the fact that, of all the named parties, only KPMG has offices in Philadelphia County. Horst supp. mem. of law at 7-8. Specifically, the plaintiffs are not located in Philadelphia County in that Grace’s corporate designee is in Bucks County. The elderly residents of the Grace facility are all in Lebanon County. KPMG’s supp. mem. of law at 7. Further, of the named defendants, four are in Lebanon County, three in Berks County, two in Lancaster County, one in Dauphin County. KPMG is located in both Dauphin and Philadelphia County. Complaint ¶¶1-12. Finally, both KPMG and Horst argue that none of the events giving rise to this lawsuit — namely the alleged substandard construction of the Grace facility, and the work done by KPMG on Grace’s account — occurred in Philadelphia County, but rather occurred in or in close proximity to Lebanon County.

Admittedly, the claims that no significant aspect of the case involves Philadelphia County, and that litigating in Lebanon County would be more convenient, in and of themselves, do not amount to a showing of oppressiveness.

However, in addition to the location of the parties and significant events factors, KPMG has established on the record that trial in Philadelphia County would be oppressive not only to it, but its employees in Dauphin County. Grace’s causes of action with respect to KPMG, all arise from KPMG’s work for and with Grace done outside of Philadelphia County. KPMG has presented deposition testimony from Norriene Koozer, KPMG’s corporate designee, stating that the “entire period of engagement from 1988 through 1997, occurred in either the Harrisburg office of KPMG or in the client’s facilities, located in Myerstown, Lebanon County.” KPMG’s supp. mem. of law at 4-5 (relying on Koozer dep. tr. at 13). Thus, Ms. Koozer testified that the 1988,1994,1995 audits were done in either Harrisburg or Lebanon County. Id. at 5. Further, the 1990, 1992, and 1996 feasibility studies and the 1995,1996 nonaudit work, which Grace specifically complains of, were performed by KPMG employees in their Harrisburg office. Id. Ms. Koozer identified the following KPMG employees who worked on Grace’s account during the relevant period as having done so from the Harrisburg office: Roy Byers, Doug Berry, Crystal Hackett, Clint Fegan, Jim Chiado, Tim Myers, Alisa Coviello (listed as Alisa Corillo and Alisa Miller), Jennifer Schnook, Regina T. Bass, Cyndi A. Hiner, Wendy Pickens, Jennifer Schwalm, Nancy Urich, Thomas Wickenheiser, Ronald R. Bryant, Julian M. Disney, Jennifer Esterline, Paul Fiorini, Kevin Kateluzos, Bonita J. McGonigal, Leon E. Lebreton, and Julie Putt. See Koozer dep. tr. at 12-14, 24-27, 30, 32-33. As such, most, if not all, of KPMG’s employees likely to be called at trial to testify are not located in Philadelphia County, but rather in or in close proximity to Lebanon County. This court submits that it would be oppressive to require these witnesses to travel the nearly 107 miles from their homes and offices in Dauphin County or the 69 miles from Lebanon County to Philadelphia County to testify. KPMG supp. mem. of law at 4 n.l.

Similarly, Horst demonstrates hardships on the record that would result from litigating this matter in Philadelphia County. Horst stresses that most of the witnesses to be called at trial on the issues raised by Grace against Horst are located in or close to Lebanon County. Horst cites the deposition of Grace’s corporate designee, Roger Hiser, who testified that management of the Grace facility occurred in Lebanon County. Horst’s supp. mem. of law at 3. Hiser identified John Wazninsky and James Brandt, former managers of the Grace facility, both of whom would “have information pertinent to the determination of key issues in this case.” Id. at 4 (relying on Hiser dep. tr. at 6-9, 22, 32). Finally, the 270 or so elderly residents of the Grace facility listed who are as plaintiffs “currently reside in Lebanon County” and “would undergo undue hardship if forced to travel to and testify in Philadelphia County,” Id. at 4 (relying on Hiser dep. tr. at 16-17).

Both KPMG and Horst urge that, in addition to witnesses, numerous and essential documents and other relevant evidence are located in Lebanon County. For example, both parties argue that all claims in the complaint revolve around the Grace facility which is located in Lebanon County. Id. at 8; KPMG supp. mem of law at 7. Further, both parties point to deposition testimony and affidavits stating that construction documents of Horst, as well as other subcontractors and maintenance records of the Grace facility, are located in Lebanon County. Certain other relevant business records are located, not in Philadelphia County, but rather in Bucks County. Id. at 9 (relying on Hiser dep. at 21); id. at 7-8 (relying on Hiser dep. tr. at 5-6, 16, 20-21, 31; Shenk affidavit ¶¶8-9). Thus, both movants have demonstrated that trial in Lebanon County would not only provide easier access to evidence and other sources of proof, but would also obviate the oppressiveness visited upon them and their employees if the case were tried in Philadelphia.

KPMG and Horst have met their burden of demonstrating for this court that proceeding in Philadelphia County would be oppressive for all the witnesses and parties involved. Accordingly, this court will grant the defendants’ petitions to transfer venue from Philadelphia County to Lebanon County based on forum non conveniens.

CONCLUSION

For the reasons stated, the petitions to transfer venue to Lebanon County will be granted. The court will issue a contemporaneous order in accord with this opinion.

ORDER

And now, April 8,2002, upon consideration of the petitions to transfer venue of defendants, Horst Construction Company and Clyde W. Horst and KPMG Peat Marwick and the response of plaintiff, Grace Community Inc., the respective memoranda and all matters of record, and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered and decreed that the petitions to transfer venue based on forum non conveniens are granted. This action shall be transferred to the Court of Common Pleas of Lebanon County.

      . Grace argues that “nothing in the Horst defendants’ petition evidences that plaintiff’s choice of venue was done so with oppressiveness and vexation that are out of proportion to plaintiff’s convenience.” Pi’s. supp. mem. of law at 17. However, the Pennsylvania Supreme Court has explicitly rejected such a balancing test.
      In the past, Pennsylvania courts allowed defendants unable to meet the vexatious and oppressive test to use a balancing test based on private and public factors, as adopted in Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989). However, current case law requires, “before any transfer of venue may be granted, that the defendants establish on the record that litigation in Philadelphia would be oppressive or vexatious.” Cheeseman, 549 Pa. at 211, 701 A.2d at 161. See also, Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 239-40 (Pa. Super. 1997) (stating that Pennsylvania courts may not use the “ill-advised” private and public interest test and that the Pennsylvania Supreme Court has declared the test “improper”).

      . Since neither defendant argues that Grace’s choice of Philadelphia County was designed to be vexatious, the court need only determine if the defendants have met their burden of showing oppressiveness.

      . Defendants, Richard Miller, Kenneth Seyfert, James D. Brandt, Joel Moehlmann are in Lebanon County; Eugene Carter, Claude P. Brezeale, Jan A. Musser are in Berks County; Horst and Robert Marvel are in Lancaster County; James L. Smith is in Dauphin County; and KPMG has offices in both Dauphin and Philadelphia County. Complaint ¶¶1-12.

      . KPMG does admit that the 1996 and 1997 audits were conducted in Philadelphia County. Further, Anthony Simonetta, a Philadelphia partner, was a “second reviewing partner” of the work completed by KPMG outside Philadelphia County. KPMG supp. mem. of law at 6 n.3.

      . John Wazninsky’s current location is unclear. James Brandt currently works in Lancaster County. Horst supp. mem. of law at 3.

      . Grace argues that all of its files are maintained in the KPMG offices in Philadelphia. Pi’s. supp. mem of law at 16, 19. However, Grace offers no support for this, nor can the court find anything in the record supporting this alleged fact.


source: Caselaw Access Project

author: STEWART, Member,

license: Public Domain

text:
    In re Anonymous No. 142 D.B. 99

      Disciplinary Board Docket no. 142 D.B. 99.
    May 8, 2001
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

STEWART, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On November 12, 1999, the Office of Disciplinary Counsel, petitioner, filed a petition for discipline against [ ], respondent in these proceedings. The petition for discipline charged respondent with violations of the rules in three separate matters. Respondent filed an answer to petition on January 5, 2000.

A disciplinary hearing was held on April 28,2000 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ], Esquire.

The committee filed a report on September 13, 2000 and concluded that respondent violated the rules of professional conduct as charged in the petition. The committee recommended that respondent receive a public censure.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of November 15, 2000.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent is an attorney admitted to practice law in the Commonwealth of Pennsylvania, having been admitted to practice on or about October 13,1978. Respondent maintains an office at [ ].

(3) Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

Charge I

(4) On or about March 5, 1992, [A] was involved in an accident with [B] while she was driving her automobile on [ ] in [ ]Township, [ ] County, Pennsylvania.

(5) In or about April 1992, respondent met with [A] and agreed to represent [A] in regard to her automobile accident.

(6) In or about April 1992, respondent proposed and [A] agreed to pay respondent 40 percent of any settlement, verdict or recovery.

(7) Thereafter, [A] received medical treatment for injuries received in the March 5, 1992 accident.

(8) Under cover of notes dated February 28,1993, April 13,1993, and June 1,1993, [A] forwarded copies of bills received from medical service providers to respondent for processing.

(9) In or about February 1994, respondent filed a praecipe for summons in the matter of [A] v. [C], Civil Action no. [ ], Court of Common Pleas of [ ] County.

(10) Between, in, or about February 1994, and, on or about March 5,1994, respondent failed to properly serve the writ of summons on defendants in the case.

(11) On or about March 5, 1994, the statute of limitations on [A’s] claim expired.

(12) Between, on, or about March 5, 1994, and, in or about November 1996, respondent failed to have the writ of summons properly served on defendants in the case.

(13) Between, on, or about March 5, 1994, and, in or about November 1996, respondent failed to take any action to further [A’s] case on the court docket.

(14) Between, on, or about March 5, 1994, and, in or about November 1996, respondent failed to initiate communication with [A] concerning the status of her case.

(15) Between, on, or about March 5, 1994, and, in or about November 1996, [A] called respondent’s office on numerous occasions and left messages requesting information on the status of her case.

(16) Between, on, or about March 5, 1994, and, in or about November 1996, respondent failed to return most of [A’s] telephone calls and failed to advise her of the status of her case.

(17) In or about November 1996, respondent filed a praecipe to reissue the summons and properly served the summons on the defendants in the action.

(18) Between, in, or about November 1996, and, on or about March 5, 1997, respondent failed to take any action to further [A’s] case on the court docket.

(19) Between, in, or about November 1996, and, on or about March 5, 1997, [A] called’respondent’s office on numerous occasions and left messages for respondent to return her calls concerning the status of her case.

(20) Between, in, or about November 1996, and, on or about March 5,1997, respondent failed to return most of [A’s] telephone calls and failed to advise her of the status of her case.

(21) By letter dated March 5, 1997, respondent advised [A] that he had not communicated with her because he was awaiting a trial date in her case.

(22) The statement that respondent was awaiting a trial date was a false statement and he knew it was false when respondent made it or he should have known it was false when respondent made it because, as of March 5, 1997, he had not filed a civil complaint in the case and, thus, the case was not ready to be set for trial.

(23) In or about June 1997, [D], Esquire, filed an entry of appearance on behalf of the defendants in the case, [C] and [B],

(24) In or about September 1997, respondent caused a civil complaint to be filed in the case.

(25) In or about November 1997, the court entered a discovery schedule and ordered discovery to be completed by September 29, 1998.

(26) Between, in, or about November 1997, and, in or about February 1998, respondent failed to take any action to further [A’s] case.

(27) Between, in, or about November 1997, and, in or about February 1998, respondent failed to communicate in any fashion with [A] either to advise her that the court had entered a discovery schedule or to discuss any aspect of her case with her.

(28) In or about February 1998, [D] filed preliminary objections to the complaint noting respondent’s failure to pursue the case.

(29) Between, in, or about February 1998, and, in or about July 1998, respondent failed to advise [A] that [D] had filed preliminary objections.

(30) Between, in, or about February 1998, and, in or about July 1998, respondent failed to file a response to [D’s] preliminary objections.

(31) In or about July 1998, the court dismissed the civil complaint respondent had filed in [A] v. [C], with prejudice.

(32) Thereafter, respondent failed to advise [A] that her case had been dismissed.

(33) On or about October 16,1998, October 17,1998, and December 21, 1998, [A] called respondent’s office and left messages for respondent to return her calls concerning the status of her case.

(34) Thereafter, respondent failed to return most of [A’s] telephone calls requesting information on the status of her case.

Charge II

(35) On or about October 31, 1991, [E] was involved an automobile accident while traveling in [ ], [ ] County, Pennsylvania.

(36) In or about December 1991, respondent met with and agreed to represent [E] in regard to her automobile accident on a one-third contingency fee basis.

(37) On or about March 30, 1992, respondent caused a praecipe for writ of summons to be filed in the matter of [E] v. [ ] and [ ] [F], Civil Action no. [ ], Court of Common Pleas of [ ] County.

(38) In or about June 1992, respondent caused a civil complaint to be filed and served on [E’s] behalf in the aforementioned civil case.

(39) In or about 1993, opposing counsel forwarded a request for production of documents to respondent seeking production of the name of any expert witness(es) whom respondent planned to use on [E’s] behalf and a summary of the testimony of the expert(s).

(40) Thereafter, respondent failed to advise [E] that respondent had received the discovery requests concerning expert witness(es), but advised her son, [G].

(41) Thereafter, respondent failed to either answer or respond to the discovery request concerning expert witness(es).

(42) On or about April 14, 1993, opposing counsel filed a motion to compel respondent to comply with the outstanding discovery requests.

(43) On or about April 19, 1993, the court directed respondent to respond to defendant’s request for production of documents within 20 days from the date of the order.

(44) Thereafter, respondent failed to advise [E] that the court had entered the above referenced order.

(45) Thereafter, respondent failed to produce the documents as ordered.

(46) On or about August 23, 1995, opposing counsel filed a motion for sanctions seeking preclusion of any expert medical testimony by respondent at the time of trial.

(47) Thereafter, respondent failed to advise [E] opposing counsel had filed the motion for sanctions.

(48) Thereafter, respondent failed to respond to the motion for sanctions.

(49) On or about September 21, 1995, the court entered an order precluding respondent from introducing any expert medical testimony concerning [E’s] injuries and any documents to establish damages at the time of trial.

(50) Thereafter, respondent failed to advise [E] that the court had entered the above referenced preclusion order.

(51) Thereafter, respondent failed to take any action in response to the preclusion order.

(52) Thereafter, respondent failed to take any action to further [E’s] case.

(53) On or about January 12, 1996, opposing counsel filed a motion for summary judgment.

(54) On or about February 8,1996, respondent filed a response to the motion for summary judgment.

(55) On or about February 23,1996, the court entered judgment in favor of defendants on their motion for summary judgment.

(56) On or about February 29, 1996, respondent filed a motion for reconsideration with the court.

(57) On or about March 21,1996, the court entered an order vacating the summary judgment and setting a hearing for May 30, 1996.

(58) In or about July 1996, respondent appeared at a hearing on the motion for reconsideration before the Honorable [H].

(59) On or about November 8, 1996, Judge [¶] denied respondent’s motion for reconsideration.

(60) On or about December 4, 1996, respondent filed a notice of appeal with the [ ] County Court of Common Pleas.

(61) On or about January 6, 1997, respondent filed a notice of appeal with the Superior Court of Pennsylvania to Docket no. [ ], captioned [E] v. [ ] and [ ] [F].

(62) On or about January 13, 1997, the court of common pleas entered an order and opinion pursuant to Pa.R. A.P. 1925 directing the prothonotary of [ ] County to transmit the record and opinion to the Superior Court.

(63) On or about July 11, 1997, the Superior Court affirmed the judgment entered by the [ ] County Court of Common Pleas.

Charge III

(64) In or about December 1992, respondent met with [I] concerning a potential malpractice case [I] was considering against his former dentist, Dr. [J].

(65) In or about December 1992, respondent agreed to represent [I] in a dental malpractice action against Dr. [J] on a one-third contingency fee basis.

(66) On or about December 5,1995, respondent commenced a dental malpractice action by writ of summons against Dr. [J], captioned [I] v. Dr. [J], Civil Action no: [ ], [ ] County Court of Common Pleas.

(67) On or about March 6, 1996, respondent filed a complaint in the above referenced case.

(68) On or about April 17,1996, [K], Esquire, counsel for Dr. [J], filed preliminary objections to the complaint. (See exhibit no. P37)

(69) Thereafter, respondent failed to advise [I] that attorney [K] had filed preliminary objections.

(70) On or about May 2, 1996, [K] forwarded interrogatories to respondent.

(71) On or about July 11, 1996, respondent filed an amended complaint in response to [K’s] preliminary objections.

(72) On or about October 2,1996, respondent attended a status conference with [K] before the Honorable [L].

(73) On or about October 2,1996, Judge [L] entered a scheduling order which established deadlines for discovery, the provision of expert reports and motions for summary judgment.

(74) The order of October 2, 1996, specifically provided that plaintiff’s expert reports were to be supplied to defense counsel on or before March 1, 1997.

(75) Thereafter, respondent failed to advise [I] that respondent attended a status conference and that the judge had entered a scheduling order.

(76) On or about January 20, 1997, respondent supplied answers to the interrogatories to [K].

(77) In response to interrogatory no. 52, respondent identified Dr. [M], Dr. [N], Dr. [O] and Dr. [P] as expert witnesses for purposes of trial.

(78) Respondent failed to provide expert reports to [K] prior to the court ordered deadline of March 1,1997.

(79) Respondent failed to advise [I] that he had not filed expert reports prior to the court ordered deadline of March 1, 1997.

(80) On or about March 14, 1997, [K] filed a motion for sanctions for respondent’s failure to provide expert reports in accordance with discovery requests and the court’s order of October 2, 1996.

(81) On or about May 27, 1997, Dr. [J] died.

(82) At no time prior to his death or prior to the conclusion of the deadlines imposed for the conducting of discovery did respondent take Dr. [J’s] deposition or propound any discovery requests upon him.

(83) Between, in, or about May 1997, and, in or about July 1997, respondent failed to submit any expert reports to [K]

(84) Between, in, or about May 1997, and, in or about July 1997, respondent failed to file any expert reports with the court.

(85) On or about July 22, 1997, the court entertained oral argument on [K’s] motion for sanctions which had been filed on or about March 14, 1997.

(86) On or about July 22, 1997, respondent attended the argument before the Honorable [Q] and presented arguments on behalf of [I].

(87) On or about July 22, 1997, Judge [Q] granted [K’s] motion for sanctions for respondent’s failure to submit expert reports and entered a judgment of non pros against [I].

(88) Thereafter, respondent failed to file a petition to open or strike the judgment entered with the court as mandated by Rule 305 of the Pennsylvania Rules of Civil Procedure.

(89) On or about August 21, 1997, respondent filed a notice of appeal to Superior Court with the Court of Common Pleas of [ ] County.

(90) On or about September 12, 1997, respondent’s notice of appeal was docketed with the Superior Court to Civil Action Docket No. [ ].

(91) Thereafter, respondent failed to advise [I] that respondent had filed an appeal with the Superior Court.

(92) On or about December 23, 1997, Judge [Q] entered a memorandum order to explain the reasons the court granted the judgment of non pros in favor of defendant and against plaintiff, respondent’s client.

(93) On or about January 13,1998, [K] filed a motion to quash the appeal with a supporting brief.

(94) Thereafter, respondent failed to advise [I] that [K] had filed a motion to quash the appeal.

(95) Thereafter, respondent failed to respond to [K’s] motion to quash the appeal.

(96) On or about February 13,1998, the Superior Court granted [K’s] motion to quash the appeal respondent had filed because of respondent’s failure to file a petition to open or strike the judgment entered with the court as mandated by Rule 305 Pa.R.C.P.

(97) Between, in, or about December 1992, and, in or about June 1998, [I] called respondent’s office on numerous occasions and requested information concerning the status of his case.

(98) Between, in, or about December 1992, and, in or about June 1998, respondent failed to advise [I] of the true status of his case.

(99) Respondent has been a sole practitioner in [ ] County since 1982.

(100) Respondent concentrates his practice in the area of criminal defense but also maintains a general practice of law.

(101) Since 1988, respondent has served as conflicts counsel for [ ] County, representing indigent criminal defendants who cannot be represented by the public defender’s office. Respondent’s caseload averages between 110 and 150 active cases at all stages of the criminal process, including appeals and post-conviction work.

(102) Respondent is in the process of a divorce. He suffered a major heart attack in 1997, after being informed by his wife that she was leaving him.

(103) Respondent’s health has improved.

(104) As a result of the complaint for discipline filed against him, respondent has taken steps to improve his performance as an attorney by spending more time in the office and becoming more involved in office administration.

(105) Respondent hired competent personnel to help organize the office and maintain consistency in the billing process. These areas had been mismanaged in the past.

(106) Respondent intends to discontinue as conflicts counsel in the future because the job is too overwhelming in conjunction with his private practice responsibilities.

(107) Respondent has a history of discipline consisting of two informal admonitions in 1998 and an informal admonition in 1992. All three of these admonitions resulted from respondent’s failure to file an appellate brief in a case assigned to him as conflicts counsel.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) RPC 1.1 — A lawyer shall provide competent representation to a client.

(2) RPC 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(3) RPC 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(4) RPC 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(5) RPC 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

The matter before the Disciplinary Board is a petition for discipline filed on November 12,1999. Petitioner and respondent entered into a joint stipulation of fact wherein the respondent admitted to the facts forming the basis of the petition for discipline. Respondent also stipulated to violating the Rules of Professional Conduct as charged by petitioner. As respondent has stipulated to all factual allegations the only issue before the board is the determination of the appropriate discipline.

In the matter of Charge I involving complainant [A], respondent agreed to represent [A] in an automobile accident case which occurred in March 1992. Respondent filed a praecipe for writ of summons in February 1994. Respondent failed to serve defendants. In November 1996, respondent filed a praecipe to reissue the writ of summons and served the summons on the defendants. During the period from March 1994 to March 1997, respondent failed to respond to most of [A’s] phone calls. By letter dated March 5,1997, respondent informed [A] that the reason he had not communicated with her was that he was awaiting a trial date in the case. Thereafter, in September 1997, respondent filed a civil complaint. In November 1997, the court entered a discovery schedule. In February 1998, defense counsel filed preliminary objections based on respondent’s failure to pursue the case. Respondent failed to respond to the preliminary objections and the court dismissed the case in July 1998. During the pendency of this matter, respondent failed to respond to most of [A’s] phone calls and failed to act with reasonable diligence. What is most significant about [A’s] case is that respondent knowingly and wilfully misrepresented the status of the case to her.

In the matter of Charge II involving complainant [E], respondent agreed to represent [E] in an automobile accident case. Respondent undertook this representation in December 1991. On March 30,1992, respondent filed a writ of summons and in June 1992 respondent filed a civil complaint. Respondent failed to respond to defense interrogatories concerning expert witnesses. Respondent further failed to comply with a court order to produce documents pursuant to defense counsel’s request for production of documents. Defense counsel filed a motion for sanctions to preclude the admission of any expert medical testimony at trial. Respondent failed to respond to the motion for sanctions. The court ordered the preclusion of expert testimony and thereafter entered summary judgment upon defense motion. After respondent’s motion for reconsideration was denied, respondent filed an appeal to Superior Court. Respondent failed to file a concise statement of matters complained of on appeal. The Superior Court affirmed the trial court entry of summary judgment. During the pendency of the matter, respondent failed to act with reasonable diligence and failed to keep [E] apprised of the status of the matter.

In the matter of Charge III involving complainant [I], respondent agreed to represent [I] in a dental malpractice action against Dr. [J]. Respondent was hired in December 1992, but did not file suit until December 1995. Thereafter respondent failed to produce expert reports in accordance with court ordered discovery deadlines and further failed to produce expert reports at any time prior to oral argument on defense counsel’s motion for sanetions. As a result of the failure to produce expert reports, the trial court entered a judgment non pros. Respondent failed to file a motion to open/strike the non pros prior to filing an appeal to Superior Court. Defense counsel filed a motion to quash the appeal. Respondent did not respond to the motion and the appeal was stricken. At all times during the pendency of the matter, respondent failed to act with reasonable diligence and failed to advise his client of the true status of the matter.

Each of the three charges contains instances of neglect. After each instance of neglect, instead of attempting to rectify the situation, respondent continued in his failure to attend to the details of his clients’ cases. Not only did respondent neglect to properly proceed with each matter in court, but he also neglected to keep the clients informed of the actual status of their cases at each significant point. Unaware of the events which were transpiring in court, each client was unable to make an informed decision whether or not to seek other counsel. In addition, respondent’s continued failure to proceed with the matters in a timely fashion contributed to the dismissal of all three lawsuits.

Each client sustained harm. None of the matters proceeded meaningfully into or past the discovery stage of litigation. None of the cases ever went to a trial on the merits.

A mitigating factor presented by respondent is the major heart attack he suffered as a result of the deterioration of his marriage. Due to the stress on his physical and mental health he was unable to maintain control of his law practice. Respondent testified at the hearing that he is in the process of divorcing his wife and his physical health is better. He has staffed his law office with competent support personnel.

Respondent received two informal admonitions in 1998 and one informal admonition in 1992. All three resulted from his failure to file appellate briefs in cases assigned to him in his position as conflicts counsel for [ ] County. Respondent testified that he intends to quit this position as it requires too much of his time and attention; however, at the time of the hearing he had not done so.

Sanctions for cases of neglect range from private discipline in matters where there is no misrepresentation or deceit, to suspension in circumstances wherein the attorney made misrepresentations to the client. The Supreme Court imposed a one year suspension in a case where the attorney was found to have neglected client matters in six separate cases. The neglectful acts included failure to provide competent representation, failure to proceed with reasonable diligence and failure to keep the clients advised of the status of their cases. This attorney also made misrepresentations to clients in an apparent attempt to hide his lack of competence. In re Anonymous No. 72 D.B. 94, 31 D.&C.4th 209 (1996).

In the matter of In re Anonymous No. 91 D.B. 90, 14 D.&C.4th 597 (1992), the Supreme Court imposed a suspension of one year and one day on an attorney for incompetence, neglect, failure to communicate and misrepresentation in two matters.

The court imposed a six month suspension in a case wherein the attorney neglected a divorce case. This negleet impacted the client’s rights pursuant to equitable distribution. In re Anonymous No. 131 D.B. 90, 17 D.&C.4th 170 (1992).

While each case is unique, prior cases are instructive in determining the appropriate level of discipline. Where the neglect of client matters is not an isolated instance but impacts numerous clients and involves some element of misrepresentation, the required discipline is generally a suspension. In the instant matter, it is clear that respondent’s neglect was pervasive, stemming from his lack of control over the administrative details of his practice. The misrepresentation arose from respondent’s wrong and misguided effort to relieve himself of the difficult task of advising his client, [A], of the true status of her case. This misrepresentation led to further misconduct by respondent.

Respondent has admitted fault and cooperated fully with petitioner in resolving this matter. Respondent appears to have pinpointed the trouble spots in his practice and has taken steps to correct the problems, although the board notes that it has taken respondent three informal admonitions and the instant proceeding to achieve this change.

For the reasons as set forth above, the board recommends a suspension for a period of six months.

IV. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from the practice of law for a period of six months.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Donohue recused herself.

Board Members Caroselli, Schultz, Rudnitsky andTeti did not participate in the November 15, 2000 adjudication.

ORDER

And now, May 8, 2001, upon consideration of the report and recommendations of the Disciplinary Board dated March 9, 2001, it is hereby ordered that [respondent] be and he is suspended from the Bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa. R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa. R.D.E.


author: QUIÑONES ALEJANDRO, J.,

text:
    Handel v. Schwartz

      Charles G. Milner, for appellees.

      Steven Schwartz, pro se appellant.

      llene Schwartz, pro se appellant.

      Ronald P. Schiller and Catherine O. Raymond, for defendants and additional defendants.
    April 6, 2001
   QUIÑONES ALEJANDRO, J.,

INTRODUCTION

Steven Schwartz and llene Schwartz, defendants, filed a pro se appeal and argue that their motion to compel arbitration, filed pursuant to Pennsylvania’s Arbitration Act, 42 Pa.C.S. §7304, was erroneously denied. This motion judge disagrees.

FACTUAL AND RELEVANT PROCEDURAL HISTORY

This motion judge carefully reviewed the pleadings and exhibits filed in this matter, as well as the briefs submitted in support of the respective pleadings. Briefly, the factual and procedural record defined by these pleadings, is as follows:

Plaintiffs George Handel and Samuel Handel (the Handels), were brothers who jointly operated a business in New Jersey and held numerous joint ventures in an investment company. Plaintiff Phyllis Tayler is an equity interest owner in the assets of the Handels’ entities and funds, and a long-time employee of the Handels businesses.

At some point in time, Samuel Handel met defendant John Ludlam. Defendant Ludlam, in turn, introduced Samuel Handel to defendant Steven Schwartz, and promoted defendant Schwartz as a brilliant financial planner and investment advisor. Allegedly, because of the influence of defendants Schwartz and Ludlam, Samuel Handel transferred $105,000 of his personal money to an account with defendant Legg Mason Wood Walker. Subsequently, defendant Schwartz persuaded the Handels to invest their company’s and their personal monies in approximately eight additional accounts at defendant Legg Mason. Defendant Schwartz was designated as the investment advisor. These preferred account agreements and the retirement account agreements contained a provision entitled consent to arbitrate. The arbitration provision therein will be more fully discussed, infra.

When these accounts were created, the Handels and defendant Schwartz signed trading authorization agreements. Said agreements dated September 2, 1998, were also signed by Linda Lane, as investment executive, and were approved by defendant Legg Mason on September 9,1998. In these agreements, defendant Steven Schwartz was appointed agent and attorney-in-fact on behalf of the Handels. The agreements also provided that notice of all transactions, reports or other communications relating to the accounts were to be sent to the Handels’ New Jersey business address, and to defendant Steven Schwartz. These agreements also stipulated that defendant Steven Schwartz was not authorized to withdraw money or securities from the accounts. Approximately $1,100,000 were deposited in the numerous accounts held by the Handels.

On November 25, 1998, Samuel Handel granted defendant Steven Schwartz a limited power of attorney, which authorized him to make investments in stocks, bonds, options, commodities and securities of any nature on behalf of Samuel Handel. The document indicated that the power of attorney was valid until revoked by Samuel Handel, who retained the ability to revoke it at any time. On November 30, 1998, George Handel signed a similar limited power of attorney.

Unbeknownst to the Handels and without their consent, the New Jersey address used to receive communication concerning the Handels’ accounts and/or any transactions was changed to an unfamiliar address in Pennsylvania. Plaintiffs allege that defendant Schwartz thereafter commenced a pattern of reckless trades in options and Internet stocks. These trades caused substantial financial losses to the Handels’ accounts. Plaintiffs contend that defendant Schwartz also transferred monies between and into various accounts owned by the Handels and other individuals, including into accounts held by defendant llene Schwartz (his mother), and defendant Artz. Plaintiffs allege that as a result of these unauthorized transfers, defendant Schwartz embezzled an aggregated amount of $1,892,853 from the Handels’ accounts. Defendants Schwartz deny the embezzlement and contend that they also deposited their own money into the Handels’ accounts.

By the beginning of 1999, George Handel ended the agency agreements between the Handels, defendant Schwartz, and defendant Legg Mason. He sought reimbursement of the monies embezzled, but without success. Because of their losses, on February 9,2000, plaintiffs commenced, by a writ of summons, a civil action against defendants Legg Mason Wood Walker, Linda Lane, Steven Schwartz, and llene Schwartz. On March 17, 2000, plaintiffs filed a complaint against defendants alleging negligence, fraud, breach of fiduciary duty, breach of contract, conversion, and embezzlement. On April 12,2000, defendants Legg Mason and Linda Lane answered plaintiffs’ complaint. On May 2, 2000, defendants Legg Mason and Linda Lane filed a joinder complaint against defendants Brian Shaughnessy and Shaughnessy Volzer & Gagner.

On May 31, 2000, defendant Schwartz filed preliminary objections to plaintiffs’ complaint. On June 7,2000, plaintiffs filed a response to said preliminary objections, which were overruled by order dated July 13, 2000.

On September 26, 2000, defendants Schwartz filed a petition to compel arbitration. Responses to said petition were filed by plaintiffs on October 12, 2000 (in opposition), by Shaughnessy defendants on October 18, 2000 (in support), and by defendants Legg Mason and Linda Lane on October 26, 2000 (in opposition). On October 31, 2000, these pleadings were assigned to the undersigned motion judge. By order dated December 1, 2000, this motion judge denied defendants Schwartz’ petition to compel arbitration.

Dissatisfied with this order, on December 4, 2000, defendants Schwartz filed this appeal.

ISSUE

A Rule 1925(b) letter was sent by this motion judge to defendants Schwartz, but the letter was returned stamped address unknown. Since defendants Schwartz did not receive the correspondence sent, for reasons unknown, and because the issue on appeal is apparent, this motion judge opines that defendants Schwartz have not waived their appellate issues for failing to comply with 1925(b). From the record, it appears that the issue before the court is whether this motion judge erred in denying defendants Schwartz’ petition to compel arbitration.

LAW AND DISCUSSION

The Uniform Arbitration Act, 42 Pa.C.S. §7301 etseq., permits an appeal from a court order denying a motion to compel arbitration. Specifically, this act provides:

“On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied.” 42 Pa.C.S. §7304(a). See also, Santiago, infra; Messa, infra; Flightways Corp., infra.

Thus, technically, this motion judge’s order dated December 1, 2000, which denied defendants Schwartz’ petition to compel arbitration, may be appealed.

Arbitration is a matter of contract and, as such, in construing the language of an arbitration provision, courts must resort to the rules of contractual construction. Hazleton Area School District v. Bosak, 671 A.2d 277, 281 (Pa. Commw. 1996). The language of a contract should be construed with the intent of the parties as the paramount consideration. Unit Vending Corporation v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963). To determine the intent of parties to a contract, a court should look to the four comers of the document and its express language. PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa. Super. 372, 632 A.2d 903 (1993). The issue of whether a dispute is one that is covered by the terms of an arbitration agreement is for a court to determine. Shadduck v. Christopher J. Kaclik Inc., 713 A.2d 635, 637 (Pa. Super. 1998); Hazleton, 671 A.2d at 283.

While this motion judge acknowledges that the law favors settlement of disputes by arbitration and seeks to promote swift and orderly disposition of claims, a court must be careful not to extend an arbitration agreement by implication beyond the clear, express and unequivocal intent of the parties as manifested by the writing itself. Hazleton, supra. Because arbitration is a matter of contract, a particular issue cannot be arbitrated absent an agreement between the parties to arbitrate that issue. Lincoln University of the Commonwealth v. Lincoln University Chapter, 467 Pa. 112, 354 A.2d 576 (1976). Judicial inquiry on whether arbitration is appropriate is limited to the following questions: (1) whether an agreement to arbitrate was entered into; and (2) whether the involved dispute comes within the ambit of an arbitration provision. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975). See also, Midomor, Presbyterian Housing Development Company, 734 A.2d 180 (Pa. Super. 1999); Santiago v. State Farm Insurance Co., 453 Pa. Super. 343, 346, 683 A.2d 1216, 1217 (1996); Messa v. State Farm Insurance Co., 433 Pa. Super. 594, 600, 641 A.2d 1167, 1170 (1994).

Here, defendants Schwartz argue that because the numerous account agreements and, in particular, the trad ing authorization agreements signed by the Handels contained a consent to arbitrate clause, the instant complaint must be transferred to arbitration. They further argue that although defendant Steven Schwartz is not a signatory of said agreements, he is a party to the agreement since he was appointed an agent by the Handels, and authorized to act on their behalf regarding their accounts with defendant Legg Mason. Defendants Schwartz contend that since the numerous account agreements provide that “This agreement will not be affected by my death, disability, incompetence, or incapacity and is binding on me, my estate and those with authority to act on my behalf, ” he has standing to compel arbitration. Of interest, defendants Schwartz do not acknowledge that the agreements also contain a provision that the agreements may be terminated and the authority granted to the agent revoked, at any time and for any reason. The Handels revoked defendant Schwartz’s authority in early 1999.

Pursuant to the relevant case law, this motion judge first looked to decide whether defendants Schwartz had standing to enforce the consent to arbitrate provisions contained in the numerous account agreements and the eight trading authorization agreements. Without reproducing the documents in their entirety, the relevant portions of these agreements, similar in nature, read as follows:

“Arbitration is final and binding on the parties.
“By agreeing to arbitrate, parties are waiving their right to seek remedies in court, including the right to a jury trial....
“I agree that all controversies that may arise between us concerning any transaction or the construction, performance, or breach of this agreement, or any other agreement between us, pertaining to securities and other property, whether entered into prior, on, or subsequent to the date hereof, shall be determined by arbitration. Any arbitration under this agreement shall be conducted only before the New York Stock Exchange Inc., the National Association of Securities Dealers Inc., or the Municipal Securities Rulemaking Board in accordance with the rules of the selected organization then in effect. The award of the arbitrators, or the majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having jurisdiction.”

As stated, defendant Steven Schwartz was noted in the trading authorization agreements as the Handels’ agent and attorney-in-fact, authorized to act on their behalf on their accounts with defendant Legg Mason. The introductory paragraph of the agreement provides that said agreement is binding on those with authority to act on behalf of the Handels. Thus, based on the plain reading of the cited arbitration provision, it appears that defendant Steven Schwartz only, and not defendant llene Schwartz, had, at a particular time, authority to enforce the arbitration provision and compel arbitration. However, this authorization was subsequently revoked by the Handels in early 1999. At the time plaintiff Handel filed the complaint in 2000, the agency agreement between the Handels, defendant Steven Schwartz and defendant Legg Mason was successfully terminated. Thus, in this motion judge’s opinion the above-cited arbitration provisions ceased to be in effect as of 1999, and have no relevance in the instant action.

Furthermore, this motion judge opines that defendant Steven Schwartz waived whatever right he had to enforce arbitration. As stated, while our courts favor the settlement of disputes by arbitration, the right to enforce an arbitration clause can be waived. Teodori v. Penn Hills School District Authority, 413 Pa. 127, 196 A.2d 306 (1964). A waiver of a right to proceed to arbitration may be expressly stated, or it may be inferred from a party’s undisputed acts or language so inconsistent with a purpose to stand on the contract provisions as to leave no opposition for reasonable inference to the contrary. Goral v. Fox Ridge Inc., 453 Pa. Super. 316, 683 A.2d 931 (1996). Such a waiver should not be lightly inferred, and unless one’s conduct has gained him undue advantage or resulted in prejudice to another he should not be held to have relinquished the right. Id. The key to determining if the right to arbitrate has been waived is whether the party, by virtue of its conduct, has accepted the judicial process. St. Clair Area School District Board of Education v. E.I. Associates, 733 A.2d 677 (Pa. Super. 1999). Acceptance of the judicial process is demonstrated when the party (1) fails to raise the issue of arbitration promptly; (2) engages in discovery; (3) files pretrial motions which do not raise the issue of arbitration; (4) waits for adverse rulings on pretrial motions before asserting arbitration; or (5) the party waits until the case is ready for trial before asserting arbitration. Goral, supra; Moscatiello Construction Co. v. Pittsburgh Water and Sewer Authority, 167 Pa. Commw. 508, 648 A.2d 1249 (1994), peti tion for allowance of appeal denied, 540 Pa. 608, 655 A.2d 995 (1995).

Here, defendant Schwartz is accused of embezzling over a million dollars from the Handels’ accounts. This behavior forced the Handels to revoke the agency relationship with defendant Steven Schwartz in early 1999, and to file a civil action against him and the other defendants in early 2000. In this motion judge’s opinion, this alleged egregious conduct constitutes a waiver of any right to compel arbitration that defendant Steven Schwartz had. Additionally, discovery and numerous adverse rulings against defendants Schwartz, including the July 13, 2000 and August 17, 2000 pretrial motions, preceded the September 26,2000 petition to compel arbitration, thereby subjecting defendant Steven Schwartz to the judicial process. Consequently, defendant Steven Schwartz does not have standing to enforce the arbitration provisions of the trading authorization agreements.

CONCLUSION

Based on the reasons stated, this motion judge opines that no errors were committed in denying defendants Schwartz’s motion to compel arbitration. Consequently, this motion judge respectfully recommends that defendants’ appeal be dismissed, and that the order, which denied defendants’ motion to compel arbitration, be affirmed.

      . On July 18, 1999, Samuel Handel passed away as a result of cancer.

      . The complaint neither identifies the business operated by the Handel brothers nor the investment company where their various investment accounts were held.

      . There is no additional mention of Ms. Tayler in the complaint.

      . The complaint provides no factual averments as to John Ludlam other than this individual introduced Samuel Handel to defendant Steven Schwartz.

      . The following accounts (either preferred accounts or retirement accounts) were established at defendant Legg Mason in September 1998, all with the Handels’ money, and with defendant Steven Schwartz identified as the investment advisor and financial planner: Handel Partnership — 405-11378; Samuel Handel — 405-11379; Hantex — 405-11377; Handel and Company defined benefit plan — 405-11376; Samuel Handel IRA- — 405-74133; Handel and Company profit sharing plan — 405-11375; George Handel IRA — 405-74132; and Samuel and George Handel investment account — 405-11380.

      . Linda Lane is an agent, servant, or employee of defendant Legg Mason, and the aunt of defendant Steven Schwartz. She also served as the account supervisor of the Handel accounts over which defendant Schwartz was the investment advisor.

      . On July 6, 2000, plaintiffs filed a praecipe to overrule preliminary objections averring that defendants Schwartz failed to comply with Philadelphia Rule of Civil Procedure *1028, which requires preliminary objections to be filed with civil administration within 30 days after said preliminary objections are filed with the office of the prothonotary.
      On July 13, 2000, this motion judge overruled the preliminary objections filed by defendants Schwartz as these preliminary objections were not filed with civil administration. See Philadelphia Rule of Civil Procedure *1028.
      On August 17, 2000, defendants Schwartz filed a second set of preliminary objections with both the office of the prothonotary and civil administration. On September 6, 2000, this motion judge overruled said preliminary objections as these were improperly filed. See Pennsylvania Rule of Civil Procedure 1028.

        On September 18, 2000, defendants Schwartz filed a motion for reconsideration and on October 13, 2000, this motion was denied.
      On October 10, 2000, defendants Schwartz filed a notice of appeal with the Superior Court. On January 29, 2001, the Superior Court quashed said appeal.

      . As stated in defendant Legg Mason’s brief, defendants Schwartz had argued before the court an oral motion to compel arbitration which was denied as late as September 7, 2000. Thus, defendants Schwartz’ appeal is technically untimely.

      . Defendant llene Schwartz is neither a signatory to the trading authorization agreement, an appointed agent of the Handels, nor a party to said agreement.

      . See footnote 7.


author: KEOGH, J.,

text:
    Moore v. Etorma

      Marc Greenfield, for plaintiff.

      Paul G. Kirk, for defendant.
    March 5, 2001
   KEOGH, J.,

FACTUAL HISTORY

Viewing the evidence in the fight most favorable to the plaintiff as the verdict winner, the following facts were proven at trial:

At approximately 7 p.m. on August 21,1997, the plaintiff, Henry Moore, was operating his motor vehicle near the intersection of 11th and Somerville Streets in Philadelphia. Mr. Moore was traveling on 11th Street. As he approached the intersection, the vehicle operated by the defendant, Eloise Etorma executed a left-hand turn in front of his vehicle. (N.T. 08/14/00, p. 58.)

Plaintiff’s vehicle sustained severe front end damage. As a result of the impact both front seat air bags in plaintiff’s vehicle deployed. There were two impacts between the parties’ vehicles. The first occurred when the defendant made the left-hand turn in front of the plaintiff’s vehicle. After the initial impact, when the plaintiff’s vehicle was at a stop, the defendant’s car rolled back down a hill and struck the plaintiff’s car while he was still occupying it. (N.T. 08/14/00, pp. 58-60).

Immediately following the accident, plaintiff complained of bums on his wrists from the deployment of the air bags, leg and ankle pain, as well as a headache. He received emergency room treatment at Chestnut Hill Hospital. Mr. Moore was not admitted. (N.T. 08/14/00, pp. 60-61.)

The next day, plaintiff began experiencing bilateral back and leg pain, with a tingling and numbing sensation. (N.T. 08/14/00, pp. 61-62). The pain intensified over the ensuing weeks forcing Mr. Moore to seek additional medical treatment. He treated with Dr. Arnold Lincow for approximately eight months. His treatment included trigger point injections, application of heat and physical therapy. (N.T. 08/14/00, pp. 64-65; N.T. 05/28/00 videotape deposition of Dr. Lincow, pp. 16-23.)

Several months after his initial eight months of treatment, Mr. Moore returned to Dr. Lincow since he continued to have leg and back pain. He received two additional injections and a prescription for Motrin. (N.T. 08/ 14/00, p. 65). Plaintiff underwent two lumbar spine CAT scans and an EMG. Dr. Lincow opined that plaintiff sustained serious injuries as a result of the August 21,1997 motor vehicle accident, including a herniated disc, at the L4-L5 level and radiculopathy at the L5-S1 level. (N.T. 05/28/00 videotape deposition of Dr. Lincow, pp. 24-28, 31.)

At the time of the accident, plaintiff had been employed for 11 years with Wonder Bread. He was a head packer on the assembly line that made doughnuts. (N.T. 08/14/ 00, pp. 55-56.) Mr. Moore was unable to work for approximately two nonconsecutive days as a result of the accident. Although he continues in his pre-accident position with Wonder Bread, he is unable to perform his job as he did prior to the motor vehicle accident. (N.T. 08/14/00, pp. 71-72, 76.)

Before the accident, his job duties included lifting 50-pound bags of sugar and mixing the sugar into the other ingredients used to make doughnuts. Since the August 1997 accident, Mr. Moore has been unable to lift the bags of sugar. Instead, he must cut the bags open and scoop the sugar into the mix. (N.T. 08/14/00, pp. 71, 85-86.)

Additionally, plaintiff’s personal activities have been affected by the injuries he sustained in the August 21, 1997 motor vehicle accident. He is unable to take out the trash, mop the floors in his house or lift laundry baskets as he did before the accident. Plaintiff has difficulty lifting anything heavier than 15 pounds. (N.T. 08/14/00, pp. 66-67.) He is also unable to walk his dog, a Great Dane that weighs over 100 pounds, without experiencing back pain when the dog pulls on her leash. Plaintiff is no longer able to walk, play sports and play with his two children as he did before the accident. (N.T. 08/14/ 00, pp. 72-73, 88-89, 107-109.)

Plaintiff continues to feel residual pain from the injuries he sustained in the accident. He also has difficulty sleeping because of pain in his right leg. (N.T. 08/14/00, pp. 66, 69-70.)

PROCEDURAL HISTORY

On March 9, 1999, plaintiff commenced this action against the defendants. Defendants filed an answer and new matter.

Plaintiff filed a motion for preclusion and partial summary judgment on March 31, 2000. On May 12, 2000, the Honorable William Manfredi Jr. denied the motion.

A jury trial commenced in this matter on Friday, August 11, 2000. On August 15, 2000, the jury returned a verdict for the plaintiff, and awarded $75,000 in compensatory damages.

Defendant, Eloise Etorma, filed a motion for post-trial relief on August 21, 2000. Oral argument on the motion was conducted on September 12, 2000. On September 26, 2000, this court denied defendant’s request for post-trial relief.

On November 28,2000, judgment was entered on the jury’s verdict in favor of the plaintiff. Defendant filed an appeal to the Pennsylvania Superior Court on December 27, 2000.

This court ordered the defendant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. Rule 1925(b). Defendant filed a statement on November 15, 2000.

ISSUES ON APPEAL

“(1) Defendant contends that the trial court erred in determining that the plaintiff had full tort coverage.

“(2) Defendant contends that the trial court erred in granting plaintiff’s motion in limine on the limited tort issue, contending that to do so was an abuse of discretion since Judge Manfredi had denied plaintiff’s motion for partial summary judgment involving the same issue.

“(3) Defendant contends that the trial court erroneously permitted the plaintiff to orally refile a motion for summary judgment after jury selection and after the case management order’s deadline for filing motions.

“(4) Defendant contends that the verdict is excessive.

“(5) Defendant contends that the verdict was against the weight of the evidence.”

DISCUSSION

Limited Tort Issue

Defendant’s first three contentions identified in the statement of matters complained of on appeal address the limited tort issue presented in this case. Before addressing the substance of the limited tort issue, the procedural posture will be addressed.

Defendant argues that this court erred in granting “plaintiff’s summary judgment motion on the limited tort issue which had been previously denied by a different judge of the same court,” and in permitting the plaintiff to “orally refile the summary judgment motion.” (sections 2 and 3 of defendant’s statement of matters complained of on appeal)

Plaintiff filed a motion for preclusion and partial summary judgment on March 31, 2000. Plaintiff sought to preclude the defendant from introducing into evidence at trial a Pennsylvania assigned risk plan notice to named insured selection of tort option form, and also requested a finding that the plaintiff was subject to full tort under the Motor Vehicle Financial Responsibility Act, hereinafter MVFRA.

The form indicates that the limited tort option was elected and bears a signature for a Henry L. Moore III. Plaintiff claimed that he did not sign the election form.

A response was filed by the defendant, to which the plaintiff replied. Oral argument was not conducted on the motion. On May 12, 2000, the Honorable William Manfredi signed the proposed order attached to defendant’s response to the plaintiff’s motion. The order reads “And now, May 12, 2000, upon consideration of plaintiff’s motion for preclusion and partial summary judgment, and defendant’s answer thereto, it is ordered that plaintiff’s motion is denied.” Judge Manfredi did not issue an opinion with the order.

When this case was called for trial in August 2000, plaintiff orally made a motion in limine to preclude the introduction of the tort election form. (N.T. 08/14/00 p. 3.) Generally, it is the law of this Commonwealth that a judge should not overrule the decision of another judge with coordinate jurisdiction sitting in the same case. Mellon Bank N.A. v. National Union Insurance Company of Pittsburgh, 2001 WL 79985 (Pa. Super. 2001). The application of this principle, however, depends upon the procedural posture of the case. Id., *4. Our Supreme Court has stated that

“Where the motions differ in kind, as preliminary objections differ from motions for judgment on the pleadings, which differ from motions for summary judgment, a judge ruling on a later motion is not precluded from granting relief although another judge has denied an earlier motion. However, a later motion should not be entertained or granted when a motion of the same kind has previously been denied, unless intervening changes in the facts or the law clearly warrant a new look at the question.” 2001 WL 79985, *4, citing Gerrow v. Shincor Silicones Inc. 756 A.2d 697 (Pa. Super. 2000); see also, Abbott v. Anchor Glass Container Corp., 758 A.2d 1219 (Pa. Super. 2000).

A motion in limine is a “pretrial motion requesting [a] court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to [a] moving party that curative instructions cannot prevent predispositio.nal effect on [a] jury. ” Black’s Law Dictionary via West Law; see also, Commonwealth v. Noll, 443 Pa. Super. 602, 662 A.2d 1123 (1995). Outside the presence of the jury, this court heard argument on plaintiff’s motion in limine. At the onset of argument, it was noted that “intervening changes of fact” had occurred since Judge Manfredi denied the motion for preclusion. Plaintiff’s counsel stated that the insurance agent, Lynn Smith who had sold the automobile insurance policy to the plaintiff gave testimony contradictory to her November 15,1999 deposition testimony on the issue of whether or not the plaintiff signed the tort election form. (N.T. 08/14/00, p. 3.)

In this matter, the motion for preclusion and motion in limine differ in kind to permit the actions of this court. While entertaining the motion in limine, this court spoke with Judge Manfredi regarding his May 12, 2000 order. Judge Manfredi advised that he did not intend to deny plaintiff’s motion with prejudice since he believed that the limited tort issue was an issue that the trial judge had to resolve. Judge Manfredi offered, upon either party’s request, to withdraw the order to effect his intent. Id. Accordingly, this court finds that it neither erred or abused its discretion in ruling on plaintiff’s motion in limine on the limited tort issue.

Addressing the substantive issue regarding plaintiff’s tort option, this court considered counsels’ arguments, the language of the relevant portions of the MVFRA, as well as the pretrial testimony of the plaintiff and the insurance agent Lynn Smith. After careful consideration, this court held that the issue of whether or not the plaintiff was bound by the limited tort option appearing on the tort election form of his insurance policy was an issue of law since the parties did not dispute the fact that the plaintiff, Henry Moore, did not sign the election form. (N.T. 08/14/00, p. 14.)

The controversy centered on whether plaintiff’s wife, Lillian Moore, signed the election form with her husband’s name, and if so, whether her actions could bind plaintiff to limited tort coverage. Plaintiff was the “named insured” on the policy of insurance. Lillian Moore was not listed as a named insured on the policy. Id. Pursuant to the definition section of section 1705 of the MVFRA, Mrs. Moore would have been an insured on the policy. An insured includes “any individual residing in the household of the named insured who is a spouse or other relative of the named insured. ...” 15 Pa.CS. § 1705(f).

Mrs. Moore testified at her deposition that she did not sign the tort election form for her husband. She further testified that she had a conversation with Ms. Smith, advising her that she and her husband wanted full tort coverage. (N.T. 01/06/00 deposition of Lillian Moore, pp. 15-17, attached as exhibit “G” to plaintiff’s motion for preclusion.)

At her deposition, Ms. Smith recalled meeting with Mrs. Moore regarding the application for insurance covering the August 1997 motor vehicle accident, but she does not know whose signature appears on the election form. Ms. Smith denied signing the form on behalf of Mr. Moore. (N.T. 11/15/99 deposition of Lynn Smith, pp. 12-13, 15-16, attached as exhibit “H” to plaintiff’s motion for preclusion.)

Plaintiff claims that he is not subject to limited tort coverage since he did not sign the election form. (N.T. 08/14/00, pp. 3-6,11-14.) The defense counters that Mrs. Moore signed the tort election form as plaintiff’s agent, and therefore, bound plaintiff to limited tort coverage. Id. pp. 6-11,14. Of course, the insurance agent knew, as the parties agreed, that the named insured, Henry Moore, had not signed the tort election form.

The resolution of the issue is one of statutory construction. The language of section 1705 repeatedly differentiates between “named insured” and “insured.” Subsection (a)(1) of section 1705 governs the insurance company’s notification obligation. This subsection provides that insurers are required to “notify in writing each named insured of the availability of two alternatives of. .. insurance. ” The statutorily required language for the notice, entitled “Notice To Named Insureds,” is then set forth. The notice, which also serves as the election form provides a place for the “named insured” to sign and date the form.

Furthermore, subsection (a)(2) of section 1705 states, in part that “Where there are two or more named insureds on a policy, any named insured may make the full or limited tort election provided for in this section for all named insureds on the policy. ” Likewise, subsection (a)(3), which discusses a failure of a named insured to respond to the notice states that “If a named insured has not responded to either notice 10 days prior to the renewal date, the named insured and those he is empowered by this section to bind by his choice are conclusively presumed to have chosen the full tort alternative. ”

Most importantly, subsection b of section 1705 governs the application of tort options and both subparagraphs 1 and 2 begin with the language “The tort option elected by a named insured shall apply. . . . ”

Since there was no dispute that plaintiff had not signed the tort election form, for purposes of the motion in limine this court gave the benefit of the doubt to the defendant and accepted defendant’s argument that Lillian Moore had signed the tort election form on her husband’s behalf. Given the fact, however, that section 1705 clearly distinguishes between “named insured” and “insured,” and recognizing the MVFRA’s intent to provide full tort coverage whenever there is a question as to whether full or limited tort coverage is applicable, this court concluded that Mrs. Moore’s actions could not bind the plaintiff to limited tort coverage since only a named insured can make a tort option election under the Act. This court determined that plaintiff was not bound by the limited tort election, and therefore had full tort coverage for the August 21, 1997 motor vehicle accident. Accordingly, he could seek economic, as well as noneconomic damages at trial.

Excessiveness of the Verdict

Defendant also contends that a new trial is warranted since the verdict was excessive. In Harding v. Consolidated Rail Corporation, 423 Pa. Super. 208, 620 A.2d 1185 (1993), the Superior Court addressed this issue. The court stated that “[t]he granting or the refusal to grant a new trial because of the excessiveness of the verdict is within the discretion of the trial court and its decision will be sustained by an appellate court absent a gross abuse of that discretion. ” 423 Pa. Super, at 225, 620 A.2d at 1193. (emphasis added)

In deciding this issue, the Harding court noted that several factors may be considered by a court in determining whether a verdict is excessive. They include the severity of the injury, whether the injury is manifested by objective physical evidence or whether it is only revealed by subjective testimony, whether the injury is permanent, whether the plaintiff can continue with his employment, the size of the out-of-pocket expenses and the amount of the compensation demanded in the original complaint. Id.; see also, Tesauro v. Perrige, 437 Pa. Super. 620, 650 A.2d 1079 (1994); Petrasovits v. Kleiner, 719 A.2d 799 (Pa. Super. 1998).

Considering the relevant factors in the context of this case, the evidence presented at trial established that plaintiff was in a serious motor vehicle accident with the defendant on August 21, 1997. As a result of the accident the front seat air bags in plaintiff’s vehicle deployed. Additionally, his vehicle was towed from the scene. (N.T. 08/14/00, p, 59; N.T. 05/28/00 videotape deposition of Dr. Lincow, p. 17.)

Immediately following the accident, plaintiff experienced pain in his wrists, shinbone and ankle and had a headache. On the night of the accident, he was treated in the emergency room of Chestnut Hill Hospital. (N.T. 08/ 14/00, p. 61; N.T. 05/28/00 videotape deposition of Dr. Lincow, p. 18.)

The day after the accident, plaintiff began experiencing low back pain, with bilateral radiculopathy into his lower extremities. Rather than dissipate, plaintiff’s symptoms increased over the ensuing weeks and he sought medical treatment with Arnold S. Lincow D.O. (N.T. 08/ 14/00, pp. 62-65.)

Plaintiff first treated with Dr. Lincow on September 10, 1997. He continued to complain of severe low back pain radiating into his legs. Dr. Lincow’s initial examination revealed that plaintiff was suffering from acute lumbosacral strain and sprain, traumatic lumbosacral myofascitis, clinical lumbar radiculopathy and clinical herniated lumbar discs. (N.T. 05/28/00 videotape deposition of Dr. Lincow, pp. 19-23.)

Dr. Lincow ordered diagnostic studies, prescribed muscle relaxants, anti-inflammatory medication, an orthopedic appliance and physical therapy. Additionally, Dr. Lincow administered trigger point injections to plaintiff’s low back. (N.T. 05/28/00 videotape deposition of Dr. Lincow, p. 22.)

Plaintiff underwent a CAT scan of the lower back on October 10, 1997 and again on March 6, 1998. He also had an EMG performed on March 5,1998. (N.T. 05/28/00 videotape deposition of Dr. Lincow, pp. 25-26, 74.) The diagnostic studies confirmed Dr. Lincow’s clinical diagnosis that plaintiff suffered a herniated disc at L4-L5, which was indenting the thecal sac and that he had bilateral lumbar radiculopathy at L5-S1. (N.T. 05/28/00 videotape deposition of Dr. Lincow, pp. 25-26, 81.)

Plaintiff treated with Dr. Lincow from September of 1997 through March of 1998. At the time of his discharge, Dr. Lincow opined that as a result of the August 21,1997 motor vehicle accident, plaintiff suffered a lumbosacral strain and sprain, paravertebral myofascial pain syndrome and myofascitis and unresolved lumbar radiculopathy, progressive traumatic disc herniation at L4-L5, protruding lumbar discs from L3 through SI and early reflex sympathetic dystrophy involving the right lower extremity. (N.T. 05/28/00 videotape deposition of Dr. Lincow, pp. 29-31.) Plaintiff’s prognosis was poor for a full recovery, and in fact, Dr. Lincow stated that plaintiff’s condition would likely deteriorate in the future and that he may require surgery. Id., p. 31.

Although the plaintiff did not miss a significant amount of time from work, he has not been able to perform his job duties as he did before the accident. He is no longer able to lift the 50-pound bags of sugar, and must instead cut them open and scoop the sugar into the mix for making doughnuts. (N.T. 08/14/00, pp. 71, 86; N.T. 05/28/ 00 videotape deposition of Dr. Lincow, p. 64.)

Likewise, plaintiff continues to experience limitations in his personal activities. At the time of the accident, Mr. Moore was 26 years old and was married with two small children. (N.T. 08/14/00, pp. 66-67, 72-73, 88-89, 107-109.)

Defendant conceded that her negligence was the cause of the August 21, 1997 motor vehicle accident. Additionally, she offered no medical evidence to contradict the testimony of Dr. Lineow.

The evidence demonstrated that as a result of the August 21, 1997 accident, plaintiff suffered a significant low back injury, including a herniated disc, and that he continues to suffer residual damages that effect both his occupational and personal activities. Evaluating the verdict in light of all relevant factors, this court finds that the verdict of $75,000 was not excessive.

Weight of the Evidence

Defendant’s last contention is a boilerplate claim that the “Verdict was against the weight of the evidence.” (¶5 of defendant’s statement of matters complained of on appeal.)

The granting of a new trial on the ground that the verdict was contrary to the weight of the evidence is also a matter within the discretion of the trial court. Upon review, an appellate court must not substitute its opinion for that of the trial judge, but must determine if the trial court abused its discretion in denying the request for a new trial. Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998).

As with a claim that a verdict is excessive, a weight of the evidence claim is to be considered with the understanding that a new trial is warranted only where the verdict is so contrary to the evidence as to shock one’s sense of justice. This does not occur merely because there may be a conflict in the testimony or because the trial judge may have arrived at a different conclusion on the same set of facts presented to the jury. Id., p. 21. In considering the sufficiency of the evidence to sustain a verdict, the evidence must be viewed in the light most favorable to the verdict winner, with that party receiving the benefit of all reasonable inferences. Robinson v. Uphole, 750 A.2d 339 (Pa. Super. 2000).

The jury, acting within its prerogative as the sole finder-of-fact, evidently accepted plaintiff’s testimony and that of Dr. Lincow as credible. Defendant offered no testimony to counter this testimony. Accordingly, this court finds that there was sufficient evidence presented at trial to sustain the jury’s verdict.

CONCLUSION

For the reasons stated above, defendant’s requests for post-trial relief raised in the statement of matters complained of on appeal do not warrant relief.

      . The parties agreed to dismiss the defendant, Rudolfo Etorma, from the suit. Rudolfo Etorma was the owner of the vehicle operated by Eloise Etorma. Defendant, Eloise Etorma, admitted negligence for the August 21, 1997 motor vehicle accident. (N.T. 08/15/00, p. 7.)

      . Before judgment in favor of the plaintiff was entered, defendant filed a notice of appeal to the Superior Court on October 25, 2000. Pursuant to Pa.R.A.P. Rule 301, an appeal cannot be perfected until judgment has been entered. Defendant filed a “second” notice of appeal after judgment was entered in the case.

      . A copy of the tort election form is attached as exhibit “E” to plaintiff’s motion for preclusion and partial summary judgment.

      . 75Pa.C.S. §1701 etseq.

      . Ms. Smith’s testimony for use at trial was videotaped. The tape was not shown to the jury given the court’s ruling on the substantive limited tort issue. (N.T. 08/14/00, pp. 3, 6, 15-16.)

      . As for defendant’s contention that the motion in limine was untimely, this court notes that from the outset of this case, plaintiff has contended that he was not bound by the limited tort option since he did not sign the election form. See plaintiff’s response to defendant’s new matter. Therefore, even if plaintiff’s motion in limine was considered untimely, there was no prejudice to the defendant since she had notice of plaintiff’s position.

      . “Named insured” is defined at 75 Pa.C.S. §1705(f) as “Any individual identified by name as an insured in a policy of private passenger motor vehicle insurance. ”

      . The declaration sheet for the insurance policy in effect at the time of the accident is attached to defendant’s response to the motion for preclusion as exhibit “A”; see also, N.T. 11/15/99 deposition of Lynn Smith, p. 45 attached as exhibit “D” to defendant’s response.

      . The insurance agent, Lynn Smith, testified that the person applying for insurance should sign the forms. (N.T. 11/15/99 deposition of Lynn Smith, p. 23, attached as exhibit “H” to plaintiff’s motion for preclusion.)

      . Ickes v. Burkes, 713 A.2d 653 (Pa. Super. 1998).

      . Plaintiff was examined by a physician on behalf of the defendant. (N.T. 08/14/00, pp. 73-74.)


author: SCARICAMAZZA JR., Vice-Chair,

text:
    In re Anonymous No. 46 D.B. 93
    Disciplinary Board Docket no. 46 D.B. 93.
    January 22, 2001
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SCARICAMAZZA JR., Vice-Chair,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

On May 11, 1993 [ ], petitioner in this proceeding, was suspended from the practice of law in Pennsylvania by order of the Supreme Court. The suspension was pursuant to the order of the Supreme Court of the State of Delaware dated October 21,1992, wherein petitioner was suspended for an indefinite period of time in the State of Delaware.

On August 30, 1999, petitioner filed a petition for reinstatement. A reinstatement hearing was held on January 13, 2000 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner appeared pro se. Office of Disciplinary Counsel was represented by [ ], Esquire.

The committee issued a report on April 28, 2000 and recommended that the petition for reinstatement be granted.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of August 2, 2000.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was bom in 1960 and was admitted to the bar in the Commonwealth of Pennsylvania in 1984. He resides at [ ]. His current business address is [ ].

(2) In January 1986, petitioner was admitted to the bar in New York. In November 1989 he was admitted to the bar in the State of Delaware.

(3) After graduating from law school, petitioner clerked for Justice [A] of the Supreme Court of Pennsylvania for two years. He then obtained an associate position with [B] in [ ] where he worked until February 1989.

(4) In or about March 1989, petitioner obtained full-time employment with [C] in [ ]. He worked there until March 1990 when he left to assist in the care of his future mother-in-law, who was ill. He cared for her until she died in September 1991.

(5) Petitioner then obtained employment as an administrative assistant with [D] until August 1994.

(6) In August 1994, petitioner began working for [E]. He remained an employee of this company until February 1997 when he started working as an office administrator with [F], where he is currently employed.

(7) Petitioner was suspended from the practice of law in Delaware by the Supreme Court of Delaware by order dated October 21, 1992 for his failure to comply with Rule 4(a)(1) of the Rules of the Commission on Continuing Legal Education. Petitioner failed to certify that he took the required 30 hours of accredited continuing legal education for the two-year reporting period ending July 31,1991. As a result, he was suspended indefinitely pursuant to Supreme Court Rule 70 and Rule 7 of the Commission on Continuing Legal Education.

(8) By order dated May 11, 1993, the Supreme Court of Pennsylvania suspended petitioner under its rules pertaining to reciprocal discipline.

(9) By order dated February 3, 1999, petitioner was reinstated as a member of the Delaware Bar, as he fulfilled 45 hours of continuing legal education credits for that jurisdiction.

(10) Petitioner fulfilled his CLE requirements for reinstatement to the bar in Pennsylvania.

(11) Character references from petitioner’s employers demonstrate that petitioner is a very competent and ethical employee who would be a credit to the legal profession.

(12) If reinstated, petitioner plans to be in-house counsel for [F]. His practice would be limited to general business matters and construction law issues.

(13) Petitioner has no history of prior discipline.

III. CONCLUSIONS OF LAW

Petitioner has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania.

His resumption of the practice of law will be neither detrimental to the integrity and standing of the bar nor of the administration of justice nor subversive of the public interest.

IV. DISCUSSION

Petitioner seeks reinstatement to the bar in Pennsylvania after his suspension in 1993 as a result of reciprocal discipline. Petitioner was suspended in the State of Delaware in October 1992 solely as a result of his failure to take the requisite number of continuing legal education credits mandated by the Supreme Court of Delaware. Petitioner explained that in the early 1990s he was not working in the legal field and was financially unable to complete the required credits.

Petitioner petitioned for reinstatement in Delaware and was required to submit a plan for makeup of the continuing legal education credits. Petitioner submitted a plan to take 45 credit hours and completed the plan as of December 1998. The Supreme Court of Delaware reinstated petitioner on February 3, 1999.

During petitioner’s seven years of suspension, he worked for several different companies as an administrative assistant. He currently works for a contracting company, where he will act as in-house counsel if reinstated. Petitioner has completed CLE credits for reinstatement in Pennsylvania, submitted character references in support of his moral qualifications and has proven himself to be competent and learned in the law. Pursuant to Pa.R.D.E. 218(c)(3)(i), petitioner has met his burden of demonstrating that he is qualified for reinstatement to the bar of this Commonwealth.

For the reasons set forth above, the board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

ORDER

And now, January 22,2001, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated November 28, 2000, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.