author: PER CURIAM,

text:
    In the Matter of Bohmueller

      Disciplinary Board,
    No. 53 DB 2011
    Jan. 23, 2015
   PER CURIAM,

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

I. HISTORY OF PROCEEDINGS

By petition for discipline filed on April 8, 2011, Office of Disciplinary Counsel charged Barry O. Bohmueller with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement. Petitioner alleged that respondent participated in the unauthorized practice of law by allowing lay persons to counsel his clients; he failed to communicate properly with his clients concerning their individual estate planning; he failed to inform clients of fee sharing and of his conflicts of interest; and he engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, including the purposeful omission of two of his four IOLTA accounts from his annual attorney registration forms. Respondent filed an answer to petition for discipline on May 23, 2011.

Simultaneous to the filing of the instant petition for discipline, petitioner filed a factually-related petition against Brett B. Weinstein, who was alleged to have acted in cooperation with respondent. The cases were consolidated for disciplinary hearing. Separate hearing committee reports were filed.

Following a pre-hearing conference on August 19, 2011, hearings were held before a District II hearing committee comprised of Chair Michael J. Malloy, Esquire and members Mason Avrigian, Sr., Esquire, and Philip M. Hof, Esquire. The hearings took place on December 7 and December 8, 2011, March 7 and March 8, 2012, July 24 and July 26,2012. Deposition testimony was taken on July 9 and September 19,2012. Closing arguments were heard on December 18,2012. Following the hearing committee’s determination that petitioner had established a prima facie violation of at least one Rule of Professional Conduct or Rule of Disciplinary Enforcement, a dispositional hearing was held on March 27, 2013.

Following the submission of briefs by the parties, the hearing committee filed a report on August 1, 2013 and recommended that respondent be suspended for a period of two years.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on January 15, 2014.

II. FINDINGS OF FACT

The board makes the following findings of fact:

1. Petitioner, whose principal office is located at Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania, is invested, pursuant to Pa.R.D.E. 207, with the power and 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 said Rules of Disciplinary Enforcement.

2. Respondent is Barry O. Bohmueller. He was bom in 1966 and was admitted to practice law in the Commonwealth in 1997. He maintains his office at 29 Mainland Road, Mainland VLG, Harleysville, Pennsylvania 19438. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

3. Respondent has no history of discipline in Pennsylvania.

4. In August or September of 1999, respondent was introduced to Brian Newmark, a non-lawyer who operated a business known as Estate Planning Advisors (EPA). Mr. Newmark’s business was focused on making sales presentations to senior citizens about the benefits of living trusts. (ODC-115 at 32, 35-37, 49, 65, 67, 291; 89, 132, 292-293, 386) Previous to operating EPA, Mr. Newmark worked with Advanced Legal Systems (ALMS), where he engaged in similar activities selling living trusts and annuities. Brett B. Weinstein, Esquire was a “referral attorney” at ALMS.

5. Mr. Newmark contacted respondent after receiving the contact information from Mr. Weinstein, who was a law school friend of respondent. Mr. Newmark talked to Respondent about “having a referral relationship.” Soon after Mr. Newmark and respondent met, they “formed a relationship” whereby Mr. Newmark began promoting, marketing and selling living trusts for respondent. (ODC-115 at 291, 319, 321) Respondent admits that he worked with EPA until the beginning of 2004. (N.T. 12/7/11 at 78-100; ODC-6, 4/30/04 at 245; ODC-164A; ODC-17)

6. In August 1999, respondent leased a “virtual office” at 900 E. Eighth Avenue, Suite 300, King of Prussia, PA 19406, upon which Mr. Weinstein made the down payment. (ODC-1A; N.T. 7/26/12 at 257-258)

7. A “Start Up Form” for the rental of the virtual office reflects that respondent’s “billing address” was 707 W. DeKalb Pike, Suite 2, King of Prussia, PA 19406 (ODC-1B). This was identified as Mr. Weinstein’s office address. (ODC-3,9/19/05 at 193-94)

8. Respondent termed the “virtual office” at 900 E. Eighth Avenue as his “formal mailing address,” but he did not have a desk and chair at that location and used it only occasionally for meetings. (ODC-3, 9/19/05 at 186-187)

9. From 2000 to 2004, respondent shared office space at Mr. Weinstein’s office. (ODC-6,2/20/04 at 127; 4/30/04 at 311)

10. Respondent kept his files at Mr. Weinstein’s office, and the facsimile number of his letterhead was identical to Mr. Weinstein’s facsimile number. (ODC-6, 2/20/04 at 119-21, 144-46)

11. Respondent’s letterhead and advertising stated that his office address was 900 E. Eighth Avenue, Suite 300, King of Prussia PA 19406, and they did not include the address of Mr. Weinstein’s office. (ODC-16; ODC-54)

12. When respondent was asked in interrogatories in civil litigation what his office address was, he gave the “virtual office” address as 900 East Eighth Avenue. (ODC-180 at 64)

13. Respondent’s Pennsylvania Attorney Annual Fee Form for the years 2000-2001; 2001-2002; 2002-2003; 2003-2004; and 2004-2005 stated that the “Primary Location of Lawyer” was “Bohmueller Law Offices, 900 E. 8th Ave, Ste, 300, King of Prussia PA 19406.” (ODC-131)

14. The sign outside of 707 W, DeKalb Pike stated “Weinstein Law Offices, LLC,” but there was no sign with respondent’s name on it. (ODC-3, 9/30/05 at 34)

15. During the time respondent shared office space with Mr. Weinstein, respondent had no secretary, paralegal, bookkeeper or associate attorney, and relied on Mr. Weinstein’s staff. (ODC-3, 9/20/05 at 25-26)

16. According to respondent, he and Mr. Weinstein had an “informal oral agreement” whereby respondent would pay for the shared office space, office staff, reimbursement for supplies and telephone usage. (ODC-6,4/30/04 at 342-43)

17. Respondent and Mr. Weinstein decided what payments respondent made to Mr. Weinstein for the office sharing arrangement, “[t]hrough conversations.” (ODC-6, 4/30/04 at 342-43)

18. Respondent used Mr. Weinstein’s office staff to generate estate planning documents for respondent, including powers of attorney, healthcare powers of attorney, living wills, pour-over wills, and revocable living trusts. (ODC-6, 4/30/04 at 321-27)

19. EPA marketed itself and respondent through direct mail and held seminars at restaurants where senior citizens were provided a free meal and were told that probate was something that senior citizens must avoid. (N.T. 12/7/11 at 86, 88-89, N.T. 3/7/12 at 28-29)

20. EPA held itself out as a business comprised of highly trained advisors in the field of estate planning. (N.T. 12/7/11 at 78-100; ODC-6, 4/30/04 at 245; ODC-164A; ODC-17)

21. When senior citizens expressed interest in living trusts by responding to EPA’s solicitations, EPA dispatched a non-attorney to the individual’s home to discuss estate planning.

22. Victoria Larson and John Wight worked for EPA.

23. Ms. Larson was credible and provided reliable testimony.

24. In 2000, Ms. Larson worked at EPA with the title “Certified Senior Advisor,” obtained after three or four days of training. She previously worked at a similar business known as ALMS, where she had sold Mr. Weinstein’s trusts to senior citizens.

25. Ms. Larson went to the homes of senior citizens to speak about the benefits of a living trust, which she stated were for probate avoidance, tax savings, attorney fee avoidance, and quicker distribution of assets. Ms. Larson had respondent’s fee agreement (BB-35) and business card, on which she wrote her name and telephone number. (ODC-31A)

26. The fee agreement stated that respondent would provide a living trust for the client, and it contained a toll-free “Client Services” number which was the number for EPA.

27. Ms. Larson used a document entitled “BOHMUELLER LAW OFFICES Confidential Information for Estate Plan” (ODC-162A) to record personal information about the client’s testamentary wishes, and an “asset worksheet” for the financial Information. (ODC-162F)

28. On the initial visit to sell a Bohmueller living trust, Ms. Larson obtained the forms that she used from the EPA office, and not from respondent. These included a form on Bohmueller letterhead. (ODC-162B)

29. Ms. Larson was only paid for the visit if she sold a trust. (N,T. 3/7/12 at 6-8, 16-17, 21-22, 29-34, 37-46, 49-53, 139-40, 149-50)

30. When she delivered the completed trust, Ms. Larson went through each section of the trust and the living will and explained the provision. (N.T. 3/7/12 at 63-70. 124-27; 140-43)

31. Ms. Larson assisted the clients in determining how to fund the trust. When the client had a question, Ms. Larson determined if the question should be answered by respondent, who was contacted infrequently. (N.T. 3/7/12 at 63-70, 124-27, 140-43)

32. Ms. Larson was not paid for the delivery, but obtained a commission from EPA if she sold an annuity. Ms. Larson claimed that she delivered fifty, or sixty living trusts over a three-year period, one or two “in a good week” (N.T. 3/7/12 at 63-70, 124-27,140-143)

33. Mr. Wight worked for EPA as a “delivery agent.” (N.T. 3/7/12 at 63-70; 124-27, 140-143)

34. Mr. Wight delivered trusts for EPA from approximately 2000 to 2005. He had worked with Mr. Weinstein at ALMS, which he stated was “substantially similar” to EPA. At EPA, Mr. Wight was respondent’s delivery agent for several of respondent’s trusts. (ODC-116 at 119, 134, 159)

35. Mr. Wight was credible and provided reliable testimony.

36. The EPA “business model” called for the delivery agent to “explain in detail to the consumer the meaning and significance of the various legal documents” being delivered. (ODC-116 at 133-34)

3 7. The delivery agent had the client sign two documents which Mr. Wight obtained from respondent’s office. One document, the “explanation of trust and delivery of trust,” stated that respondent had asked the particular agent to explain the trust “In detail.” (ODC-28)

38. The other document, the “Pennsylvania Delivery Receipt and Checklist,” referred to the agent as a “representative” of Bohmueller Law Offices. (ODC-29)

39. Mr. Wight explained that the EPA business model “helped to identify clients who likely needed certain insurance products.” Mr. Wight was not paid by respondent when he worked as a delivery agent at EPA; rather, if he sold an insurance product, he would receive a commission from EPA. (ODC-116 at 126-134, 174)

40. Glenn Larson is a high school graduate who worked at EPA from 2001 until 2005. Mr. Larson’s business card stated that he was a “Certified Senior Advisor,” a title he obtained after reading on his own and having four days of training. (ODC-123 at 16-22; ODC-164A)

41. Mr. Larson was credible and provided reliable testimony.

42. Mr. Larson participated in seminars given by EPA, at which the attendees were given dinner and one of the topics discussed was living trusts. (ODC-123 at 71-75)

43. Mr. Larson went to the homes of senior citizens at the rate of one each day to discuss the drawbacks of probate and to determine if a living trust would be appropriate for them. (ODC-123 at 76; 84-86, 92-93)

44. Respondent was the lawyer to whom Mr. Larson referred the clients. In the minority of cases, the individual decided to use a different lawyer. (ODC-123 at 115-17, 178-79, 192-83)

45. Mr. Larson gathered information about the clients and their assets and collected a check in the range of $600 to $1,200 for the attorney fees. (ODC-123 at 88-89, 105)

46. Mr. Larson would deliver the trust and review the trust with the client. He brought to the client’s home the information about the client’s assets to discuss “their estate plan” and “any options they may need.” (ODC-123 at 96, 106)

47. Mr. Larson was not paid for the sale of the living trust and made no base salary; rather, his sole source of income was commission on the sale of annuities. (ODC-123 at 90-91)

48. Respondent made periodic payments to Mr. Newmark for his efforts to market and sell living trusts. The payments would sometimes be based on how many clients EPA had given respondent and sometimes it was based on “how much money [Newmark] needed.” (ODC-115, 5/21/04 at 329-30)

49. Sales agents were paid by EPA on a per trust basis for every trust they sold. (ODC-115 at 336, 338)

50. In 2002, EPA received income of approximately $1.9 million from seven insurance companies. (ODC-115 at 312)

51. Respondent provided Mr. Newmark with two form documents. One was the “explanation of trust and delivery of trust” (ODC-28) on which Mr. Newmark filled in the name of the delivery agent, although the document recited that respondent had selected the named delivery agent to explain the trust in detail. (ODC-115 at 354-58)

52. Respondent also provided the “Pennsylvania Delivery Receipt and Checklist,” which indicated that the EPA delivery agent was a “representative” of respondent’s law office. (ODC-29; ODC-1156 at 355-58)

53. As confirmed by Mr. Newmark, respondent did not supervise the agents who went out and sold the living trust. (ODC-115 at 301-02)

54. It was respondent’s responsibility to prepare the deed to transfer the residence into the living trust, (ODC-115 at 398,400)

55. Respondent’s participation in unethical conduct is illustrated by the experience of a sampling of respondent’s clients, as described below.

56. Mary Lynch, a former secretary, was 83 years old in 2001, when she bought a Bohmueller trust from EPA. (N.T. 3/27/13 at 44-58)

57. Mrs. Lynch did not buy an annuity at that time. In 2003, Mrs. Lynch was in the early stages of dementia. (N.T. 3/27/13 at 44-58)

58. Mrs. Lynch’s son, John Lynch, went to her home to prepare her tax return. Mrs. Lynch, who used to have a total of $60,000 or $70,000 in the bank, only had $104.00. When her son asked her what happened to the money, she stated that she did not know. (N.T. 3/27/13 at 44-58).

5 9. Mr. Lynch determined that his mother had purchased an annuity from Victoria Larson of EPA. The annuity would not begin to pay Mrs. Lynch until 2014, when she would have been 96 years old. (N.T. 3/27/13 at 44-58)

60. In 2001, Thomas Walker and his brother, Arthur Walker, were visited by Victoria Larson of EPA, who came to their home and gave them a brochure entitled “take control of tomorrow” (ODC-31), and respondent’s professional card, on which she wrote the number for EPA.

61. Thomas Walker was credible and provided reliable testimony.

62. The Walkers gave Ms. Larson two checks made out to Bohmueller Law Offices and Thomas Walker, Jr. signed a document on Bohmueller letterhead confirming that respondent would prepare the trust. (ODC-30, 9/15/05 at 168; 172, 179; ODC-31A; ODC-162B)

63. Ms. Larson also listed the Walkers’ assets on an “asset worksheet” and their testamentary wishes on the form, “Bohmueller Law Offices Confidential Information for Estate Plan.” (ODC-162A &162F)

64. The Walkers neither met nor spoke to respondent. (ODC-30, 9/16/05 at 189-90)

65. John Wight delivered the living trust and ancillary documents to the Walkers in a binder which contained respondent’s business card.

66. Thomas Walker introduced Mr. Wight to the Walkers’ neighbors (witnesses for their trusts) as his lawyer, and Mr. Wight did not correct Mr. Walker. (ODC-30, 9/15/05 at 189-90)

67. Arthur Walker was credible and provided reliable testimony.

68. Mr. Wight explained some of the provisions of the trust to the Walkers. (ODC-30, 9/15/05 at 193)

69. The Walkers purchased annuities in an amount over $3,000,000. (ODC-30, 9/19/05 at 10-11)

70. In 2001, Margaret and Felix Miller were solicited by a telemarketer, and Michael Ciccone of EPA, a non-lawyer, then came to their home. (ODC-51, 9/22/05 at 198-200; 9/26/05 at 88-89)

71. Neither of the Millers ever met nor spoke with respondent. (ODC-51,9/22/05 at 206; BOH-17 at 35,106)

72. Mr. Ciccone advised the Millers that a living trust was superior to a will. (ODC-51, 9/22/05 at 219; 9/26/05 at 75-76)

73. The Millers gave Mr. Ciccone a check for $1,795 made out to respondent, and provided information for the “Asset Worksheet” and “Bohmueller Law Office Confidential Information for Estate Plan.” (ODC-48; BOH-17 at 92-93)

74. Mr. Wight delivered the Bohmueller living trust and told the Millers the topic that each section of the trust addressed. (ODC-51, 9/22/05 at 235-38)

75. Mrs. Miller was credible and provided reliable testimony.

76. Mrs. Miller did not understand the documents Mr. Wight put in front of her, but she thought he was a lawyer and was working for “our good.” (ODC-51, 9/22/05 at 243)

77. The Millers asked Mr. Wight for a business card, and he gave them a Bohmueller Law Offices business card, on which he wrote his name and telephone number. (ODC-51, 9/22/05 at 228-31; BOH-17 at 95)

78. Mrs. Miller thought Mr. Wight was a lawyer because a living trust had to be drafted by a lawyer. (ODC-51, 9/22/05 at 228-31; BOH -17 at 95)

79. Mr. Miller thought Mr. Wight worked for respondent. (ODC-51, 9/22/05 at 228-31; BOH-17 at 95)

80. At no time did Mr. Wight disclose to the Millers that he was not an attorney. (ODC-51, 9/22/05 at 228-31; BOH-17 at 95)

81. In 2001, the late Walter and Susan Gilmour were in their 80’s. The Gilmours’ son, Walter Gilmour, Jr. lived on his parents’ farm and acted as his parents’ caretaker. (N.T. 3/7/12 at 169, 211-13, 301, 209-10, 170-74)

82. Mr. Gilmour was credible and provided reliable testimony,

83. A representative from an entity called The Patriot Group, Mike Hamilton, came to the Gilmours’ home and sold them a revocable living trust, telling them that without a revocable living trust, only 15% of their estate would remain after taxes and probate.

84. Mr. Gilmour and his parents neither spoke with nor met respondent.

85. The revocable living trust and the ancillary documents were delivered to the Gilmours by Steve Strope of The Patriot Group. The Gilmours signed the “Pennsylvania Delivery and Receipt Checklist,” (ODC-58), which referred to Mr. Strope as a “representative of Bohmueller & Associates Law Offices.”

86. Mr. Gilmour believed that respondent was a lawyer working with The Patriot Group and that Mr. Strope was an estate planner and advisor, not an insurance salesman. (N.T. 3/7/12 at 179-80, 181-84, 187-88, 200, 205, 235, 256,258,278-79,312-16)

87. Mr. Strope reviewed the trust with the Gilmours and explained the terms of the trust to them. (N.T., 3/7/12 at 179-80, 181-84, 187-88, 200, 205, 235, 256, 258, 278-79,312-316)

88. The Gilmours liquidated securities worth $2.8 million dollars to buy four annuities. (N.T. 3/7/12 at 179-180, 181-84, 187-88, 200, 205, 235, 256, 258, 278-79, 312-16)

89. Todd Garry worked at The Patriot Group from 1999 to 2002, delivering Bohmueller living trusts. While working at The Patriot Group (and subsequently as a delivery agent for Mr. Weinstein at American Family Heritage), Mr. Garry delivered approximately 600 to 1,000 living trust binders. (N.T. 3/7/12 at 323-29, 342)

90. Harcourt and Barbara Trimble bought a Bohmueller living trust in 2001, when Mr. Trimble was 89 and Mrs. Trimble was 84. (N.T. 3/8/12 at 135-37, ODC-62; ODC-63)

91. Harcourt M. Trimble, III is the Trimbles son and was credible and provided reliable testimony.

92. When the trust was delivered, the Trimbles and Mr. Strope signed the “Pennsylvania Delivery Receipt and Checklist.” (ODC-63) The Trimbles bought an annuity through Mr. Strope. (N.T. 3/8/12 at 135-137, ODC-62; ODC-63)

93. After his parents’ death, Mr. Trimble contacted Mr. Strope and suggested that he, Mr. Trimble, engage respondent to handle his parents’ estate.

94. Mr. Strope stated that respondent was busy and suggested that Mr. Trimble call Mr. Weinstein, which Mr. Trimble did. Although Mr. Trimble engaged Mr. Weinstein and met with him on numerous occasions, Mr. Trimble received invoices on Bohmueller letterhead handed to him by Mr. Weinstein.

95. Mr. Trimble received correspondence on Bohmueller letterhead. Mr. Trimble made out fee checks to Mr. Weinstein, which were endorsed to Bohmueller Law Offices.

96. Respondent’s check register for September 8,2003 reflects that he paid two checks to Weinstein Law Offices with the notation that they were for the Trimbles’ estates. (ODC-9A, checks 1271 and 1272)

97. Although Mr. Trimble did not deal with respondent during the representation, he concluded, from the documents and conduct, that Mr. Weinstein and Mr. Bohmueller worked together. (N.T. 3/8/12 at 160-162, 168-70, 174-75, 179-80, 183, 286, 299-302; ODC-97D1, D2; ODC-97E; ODC-97H; ODC-97G)

98. Margie Brennan Trefz’s parents, Gilbert and Joanne Brennan, were in their 70’s in 2001. (N.T. 12/8/11 at 288-289)

99. Ms. Trefz was credible and provided reliable testimony.

100. In 2001, Mr. and Mrs. Brennan obtained a Bohmueller revocable living trust. (ODC-68)

101. When Mr. Brennan was hospitalized in 2003, Victoria Larson brought to the hospital the Brennans’ redrafted powers of attorney, accompanied by a cover letter dated March 6, 2003 on Bohmueller Law Offices letterhead, signed by a member of Mr. Weinstein’s legal staff. (ODC-71 A; N.T. 7/26/12 at 210-211)

102. Ms. Larson had notarized the powers of attorney and discussed the changes with the Brennans, (N.T. 12/8/11 at 302-303, 307-13)

103. To Ms. Trefz’s knowledge, her parents never discussed the changes to the powers of attorney with respondent. (N.T. 12/8/11 at 302-303, 307-13)

104. The Brennans ’ powers of attorney that accompanied the March 6, 2003 letter from Bohmueller Law Offices stated on the upper right hand side; “RECORD AND RETURN TO: Weinstein Law Offices.” (ODC-176A and ODC-176B)

105. Mr. Weinstein called Ms. Trefz and told her that “there were going to be potential clients calling” her, and would she mind if “they” gave Ms. Trefz’s phone number to potential clients “so that [the potential clients] could ask questions about the practice and whether [the potential clients] should use them.” (N.T. 3/8/12 at 111)

106. During the period when respondent practiced law out of Mr. Weinstein’s office, respondent had four IOLTA accounts and one business operating account at Royal Bank. (ODC-160; ODC-11)

107. Between 2001 and 2004, 3,155 checks containing the names of individuals and couples made out to Bohmueller Law Offices were deposited in respondent’s IOLTA accounts. (ODC-160; ODC-14)

108. The residences of the payers of the checks span the Commonwealth from Philadelphia to Pittsburgh and communities north and south, including Reading, Coal Center, East Stroudsburg, Bloomsburg, Harrisburg, Beaver Falls, Pocono Lake and State College, among other locales. (ODC-14)

109. During the time that respondent practiced law from Mr. Weinstein’s office, Mr. Weinstein, using a Bohmueller signature stamp, wrote hundreds of checks from respondent’s IOLTA accounts, including checks to Weinstein Law Offices; to Bohmueller; and to estate planning businesses. (ODC-9; ODC-6,4/30/04 at 424-31; N.T. 7/26/12 at 265)

110. On his Pennsylvania attorney registration paperwork, respondent only listed two of his four IOLTA accounts at Royal Bank, Nos. 1008127 and 1008223. (ODC-131)

111. During the period 2000-2004, respondent failed to list two additional IOLTA accounts that were maintained at Royal Bank, Nos. 1010577 (designated “IOLTA Account III”) and 1008610 (designated “IOLTA Account IV”).

112. Respondent did not maintain complete records of his IOLTA accounts. (ODC-9A; N.T. 12/7/11 at 324-26; ODC-6,4/30/04 at 358-59, 362-63, 368, 386)

113. For all checks written on respondent’s four IOLTA accounts and his business operating account from 2001 to 2004. Including those written by Mr. Weinstein, checks to respondent totaled approximately $510,000; checks to Mr. Weinstein totaled approximately $1,210,000. (ODC-11)

114. For the years 2001 to 2004, checks to Mr. Weinstein from respondent’s four IOLTA accounts and one business account totaled $622,800 in 2001; $485,425 in 2002; $77,020 in 2003; $34,200 in 2004. (ODC-11)

115. For the years 2001 to 2004, checks to respondent from respondent’s four IOLTA accounts and one business account totaled: $184,551.50 in 2001; $112,965 in 2002; $164,680 in 2003; $54,328 in 2004. (ODC-11)

116. Mr. Weinstein did not have a single paper or document to evidence that respondent was paying him for what Mr. Weinstein claimed were capital improvements to an office that respondent vacated in or about 2004, (N.T. 7/26/12 at 294-95)

117. Mr. Weinstein has no documents that describe the precise expenses for which checks were being written to Mr. Weinstein from respondent’s IOLTA accounts and business account. (N.T. 7/26/12 at 316-17)

118. Respondent has no records other than his bank records and his client files, reflecting the purpose of the payments to Mr. Weinstein. (ODC-160; ODC-6,4/30/04 at 366-70)

119. Respondent was not a partner with Mr. Weinstein, but he shared fees with Mr. Weinstein and failed to inform his clients of this. (BB-34)

120. John A, Terrill, Esquire, testified as an expert witness for petitioner. He was credible and provided reliable testimony.

121. In Pennsylvania, probate is a filing with modest fees and the estate settlement process is the same, and involves the same legal fees and inheritance tax returns for a will-based or living trust-based estate.

122. The comparison to the American Family “Simple Will/No Will” charts (ODC-164C) and Bohmueller’s direct mail advertising are false and misleading. (N.T. 7/24/12 at 50; ODC-16).

123. Mr. Terrill described the proper method of assisting the client in preparing an estate plan: assemble and analyze client information and assets; meet with the client to discuss intentions; review existing estate planning documents, the client’s tax situation and prospects for tax planning; determine the client and potential beneficiaries’ ages and health, and a host of related information and issues. (N.T. 7/24/12 at 17-178, 268-301)

124. Respondent’s direct mail advertisement touted the alleged benefits of a living trust, such as to “AVOID PROBATE COURT,” “MAINTAIN TOTAL CONTROL of your assets”, “AVOID COURT INVOLVEMENT should you become incompetent due to a stroke or Alzheimer’s”, “PROTECT YOUR ESTATE from unnecessary taxes” and “PROVIDE PRIVACY to your family in this time of emotional distress.” (ODC-16; N.T. 12/7/11 at 316)

125. Respondent advertised that, “A will does NOT prevent probate; in fact, it is a direct ticket to probatel” and “[probate] is often a complicated legal process of finding your assets, paying your bills, and then transferring assets to your loved ones.” (ODC-16; N.T. 12/7/11 at 316)

126. The Bohmueller advertisement implies that there is a significant distinction between settlement of a will-based plan and a living trust-based plan, which is false and misleading, and raises unfounded “negatives” which allegedly accompany a will-based estate, such as probate, court involvement, expense, loss of control of one’s assets and delay. (N.T. 7/24/12 at 91-105)

127. Also misleading were handwritten charts (ODC-50) presented to respondent’s clients, the Millers, by EPA agents. The charts reflected that the Millers would have “court costs” of $70,000 with a will. However, the fee to probate their estate, valued at $700,000, in fact would have been from $700 to $800. (ODC-51, 9/22/05 at 200; N.T. 7/24/12 at 110).

128. The chart also provided an unfounded estimate of attorney’s fees and executor fees of $35,000. (ODC-50, N.T. 7/24/12 at 110-11)

129. Respondent presented three witnesses who testified concerning his character at the March 27, 2013 hearing. The witnesses were Carolyn Bohmueller, Esquire, respondent’s wife; Nancy Becker, the Recorder of Deeds in Montgomery County; and David A. Keeley, Sr., Esquire, a former magisterial district judge.

130. Although respondent’s witnesses attested to his good attributes, none contradicted the fact that the conduct at issue was wrong.

131. Respondent ceased engaging in the misconduct in 2004 and has refrained from that conduct for over nine years.

132. At the time that respondent ceased his misconduct, an interim consent decree was entered on December 14, 2004 in the case of Commonwealth of Pennsylvania v. Estate Planning Advisors, Brett B. Weinstein and Barry O. Bohmueller, et al., No. 74 MD 2004 (Pa. Cmwlth.) which stated that, inter alia, “defendant Weinstein will continue to refrain from authorizing and utilizing laypersons to provide legal advice to his clients.” (ODC-211)

13 3. Office of disciplinary counsel served DB-7 requests for statement of respondent’s position on respondent and Mr. Weinstein in June of 2005, alleging that they were engaging in misconduct. The board deferred the proceedings in October of 2005 until final disposition of the attorney general action. (ODC-185)

134. Respondent was aware by 2004 that his activities as related to the living trusts were being investigated.

135. Respondent did not express remorse for his conduct nor any acknowledgement that his misconduct violated the ethical rules.

III. CONCLUSIONS OF LAW

By his actions as set forth above, respondent has violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

1. RPC 1.2(a) — Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decision concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

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

3. RPC 1.5(e) — A lawyer shall not divide a fee for legal services with another lawyer who is not in the same firm unless (1) the client is advised of and does not object to the participation of all the lawyers involved, and (2) the total fee of the lawyers is not illegal or clearly excessive for all legal services they rendered the client.

4. RPC 1.7(a)(2)—Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

5. RPC 5.1(c)(1) —A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if the lawyer orders, or with knowledge of the specific conduct, ratifies the conduct involved.

6. RPC 5.5(a) (former and current versions)—Alawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

7. RPC 5.7(c) —Alawyer who is an owner, controlling party, employee, agent, or is otherwise affiliated with an entity providing nonlegal services to a recipient is subject to the Rules of Professional Conduct with respect to the nonlegal service if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of a client-lawyer relationship.

8. RPC 8.4(a) — A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

9. RPC .8.4(c) —A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

10. Pa.R.D.E.203(b)(3) via PaJR.D.E. 219(d)(l)(iii) — Which states that on or before July 1 of each year all attorneys required by this rule to pay an annual fee shall file with the attorney registration office a signed or electronically endorsed form prescribed by the attorney registration office in accordance with the following procedures: (1) The form shall set forth ... (iii) The name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds of a client or a third person subject to Rule 1.15 of the Pennsylvania Rules of Professional Conduct. The form shall include the name and account number for each account in which the lawyer holds such funds, and each IOLTA account shall be identified as such. The form provided to a person holding a limited in-house corporate counsel license or a foreign legal consultant license need not request the information required by this subparagraph.

IV. DISCUSSION

This matter is before the disciplinary board for consideration of the charges against respondent alleging numerous violations of the Rules of Professional Conduct. Petitioner bears the burden of proving, by a preponderance of the evidence, that respondent’s actions constitute professional misconduct. This burden must be established by clear and satisfactory evidence. Office of Disciplinary Counsel v. Surrick, 749 A.2d 441 (Pa. 2000). The record consists of nine days of testimony and numerous exhibits, following review of the record in its entirety, the board concludes that petitioner proved that respondent, acting in concert with attorney Brett Weinstein, participated in a living trust scheme in which he assisted nonlawyers in the unauthorized practice of law, conducted his practice in a dishonest manner, placed his own economic interests above those of his clients, and failed to give clients the required advice and counsel to which they were entitled.

Respondent was admitted to the practice of law in Pennsylvania in 1997. In 2000, he connected with his law school friend, Brett Weinstein, who essentially set him up in practice at Mr. Weinstein’s office. Although respondent listed the address of a “virtual office” on his letterhead and in his filings with the disciplinary board, this “office” did not contain any furniture and was not used by respondent to practice law. Instead, respondent used Mr. Weinstein’s staff and facilities and allowed Mr. Weinstein access to respondent’s IOLTA accounts.

The nature of respondent’s practice with Mr. Weinstein consisted of drawing up living trusts. Respondent was associated with EPA and other similar businesses, which targeted senior citizens as potential clients, holding seminars and making telephone and direct mail solicitations. The message of these businesses was that probate in Pennsylvania should be avoided by these senior citizens. EPA and others held out that having a revocable living trust was the answer to the “probate problem.” Respondent’s own direct mail advertising echoed the agents’ sales pitches about the need for a living trust. These materials exaggerated the benefits of living trusts and contained deliberate misrepresentations. (ODC-16) After the initial solicitation, nonlawyer agents of EPA and like businesses went to the homes of the senior citizens. As evidenced by the testimony of Victoria Larson, John Wight, and Glenn Larson, the agents gave false and misleading advice to the clients about the need to avoid probate in Pennsylvania on the many occasions between 2000 and 2004 that they visited the homes of clients in their attempts to sell Bohmueller living trusts.

Respondent’s status as a lawyer gave legitimacy to the estate planning businesses. It was the means by which the agents could persuade the potential clients to obtain the living trust, which brought the agents one step closer to their ultimate goal of selling annuities to the clients. The agents carried respondent’s business card and his fee agreements, which recited that respondent would provide a living trust. Not only did these senior citizens believe that the agents were working for respondent, the evidence demonstrates that at least several believed that the agent was a lawyer.

The trust was delivered to each client and explained not by respondent but by a nonlawyer delivery agent. John Wight explained that the EPA “business model” required that the delivery agent provide an explanation of the trust to the client. Along with this explanation, a letter from respondent was given to the client, which recited that respondent had asked the delivery agent to explain the trust “in detail.” Other documents given to the clients noted that the agents were “representatives” of respondent’s law office.

As for respondent, he had minimal if any, interaction with his clients, and he received the clients’ information through the employees of the sales company. Not only did he fail to communicate with his clients about the representation and the clients’ objectives, he allowed the nonlawyer agents to step into his role and counsel and advise his clients without his presence or oversight. Clearly, respondent had no opportunity to personally consider the clients’ assets or even know if these clients had the mental capacity to enter into the living trust, nor it seems, did he care. His pecuniary interests in the living trust businesses permeated his participation in the process, and compromised his ability to act in his clients’ best interests.

As referenced above, respondent and Mr. Weinstein were essentially practicing law together and sharing fees with no written agreement giving structure to the relationship. Although Mr. Weinstein procured a virtual office for respondent, in fact respondent conducted his practice out of the Weinstein office. Respondent had IOLTA accounts in his name, but in reality, Mr. Weinstein was able to access these accounts and used a Bohmueller signature stamp to write hundreds of checks from respondent’s IOLTA Accounts, including checks to Weinstein Law Office, to respondent, and to estate planning businesses.

Respondent acted dishonestly when he failed to disclose two of his four IOLTA accounts on his annual attorney registration forms filed with the disciplinary board. While he claimed that the omissions were a clerical error, it is of great concern that these accounts held funds that resulted from the estate planning scheme. For all checks written from respondent’s four IOLTA accounts and his business operating account from 2001 to 2004, including those written by Mr. Weinstein, checks to Mr. Weinstein totaled approximately 1.2 million dollars. Incredibly, Mr. Weinstein claimed that these checks were written by respondent to pay for capital improvements to an office. There is no documentary evidence to describe the precise expenses for which checks were being written to Mr. Weinstein from respondent’s IOLTA accounts and business account. The fact that respondent failed to keep records of the two IOLTA accounts, coupled with the fact that he listed a virtual office address on the same attorney registration forms indicates his knowledge that he was engaged in an unethical scheme. Because respondent has committed violations of the rules by perpetuation of a scheme which allowed others to engage in the unauthorized practice of law for his financial benefit, omitting reference to two of his four IOLTA accounts, and splitting fees when he was not authorized to do so, respondent must be sanctioned.

The unauthorized practice of law is at the heart of this matter. We note that trust marketing schemes have repeatedly been found to violate the proscription against the unauthorized practice of law. Attorneys from around the country have been disciplined for engaging in the type of conduct found to have occurred in the instant matter. In the matter of Cincinnati Bar Association v. Kathman, 92 Ohio St.3d 82 (Ohio 2001), an attorney maintained a relationship with a company that sold living trusts. It was concluded that the attorney provided advice too late in the process because the nonlawyer had already given legal advice to the client upon which the decision had already been based. In addition, the reviewing attorney added a degree of credibility to the legality of the company and the advice that had been previously given. Similar results have been obtained in cases in Missouri, Colorado and Washington. See in Re Mid-America Living Trust Associates. Inc. v. et. al., 927 S.W. 2d 855 (Mo. 1996); People of the State of Colorado v. Michael M. Laden, 893 P.2d 771 (Colo. 1995); In re Disciplinary Proceeding Against Shepard, 169 Wash. 697 (Wash, 2010).

In Pennsylvania, the Supreme Court imposed a suspension of one year and one day on a lawyer who worked as a review attorney for an estate planning company. Office of Disciplinary Counsel v. Anonymous (G. Jeffrey Moeller), 53 DB 2000 (Pa. 2002). In its report, the disciplinary board addressed “the issue of whether a lay advisor engages in the unauthorized practice of law by counseling a client to create a living trust. “The board noted that the “fundamental concern” was that the “goal of the [estate planning business] was not to provide [the client] with good advice about the disposition of her estate; it was to sell her a living trust package. By the time the matter even reached [Moeller], the advice had been given, the decision made, and the money was in hand.” (D. Br. Rep. 5/16/02 at 10). Mr. Moeller reviewed, modified and finalized “dozens” of trusts from the spring of 1996 to the fall of 1997. Mr. Moeller’s actions enabled a nonlawyer entity to practice law in Pennsylvania, in addition, Mr. Moeller was found to have practiced law while on inactive status.

The Supreme Court has held time and again that lawyers who engage in the unauthorized practice of law have committed serious misconduct. The fact patterns of these cases have often involved attorneys who were on inactive status and continued to practice law. In recent years, where an attorney engages in such misconduct, the court has seen fit to impose a suspension of one year and one day. Office of Disciplinary Counsel v. Peter William DiGiovanni, No. 36 DB 2008 (Pa. 2009); Office of Disciplinary Counsel v. Sharon Goldin-DidInsky, No. 87 DB 2003 (Pa. 2004).

Assisting another in the unauthorized practice of law is equally serious, and deserves the same disciplinary sanction as when an attorney engages in the unauthorized practice of law. Office of Disciplinary Counsel. v. Jeffry Pearson, No. 88 DB 2008. (Pa. 2011). Mr. Pearson assisted a disbarred attorney in the unauthorized practice of law. After he entered his appearance in a case, Mr. Pearson allowed the disbarred lawyer to advise the clients, who were actually the disbarred attorney’s former clients. Mr. Pearson was suspended for a period of twenty months.

Respondent’s conduct in the instant matter is more serious than that in the Pearson matter, as he assisted laypersons in practicing law. The agents that respondent used to advise his clients had no training or knowledge of the law, and their misleading advice was tailored to achieve their true goal of selling annuities. Based on the number of trusts sold over the four years that respondent engaged in this conduct, it is safe to say that he enabled many nonlawyers to illegally practice law, and not just one, as in the Pearson case.

In addition to the unauthorized practice of law, respondent engaged in deception of the Pennsylvania Supreme Court by misrepresenting his office location and the existence of two IOLTA accounts on his attorney registration forms, and engaged in improper fee sharing with Mr. Weinstein.

Respondent has yet to acknowledge or show remorse for his wrongdoing. The fact that he ceased working with laypersons in selling financial products in 2004 is not a compelling mitigating factor. It is apparent that respondent extricated himself from his business arrangement at that time because he was aware that his conduct, and that of Mr. Weinstein, was being investigated by the Attorney General of Pennsylvania and Office of Disciplinary Counsel.

From 2000 to 2004, respondent’s practice was conducted in a fraudulent manner designed to enrich himself at the expense of his clients, to whom he utterly failed to render the professional and ethical services they were entitled to receive. Respondent’s misconduct is egregious and warrants a severe sanction. We respect the hearing committee’s recommendation of a suspension for two years, but in light of the totality of the facts and circumstances of respondent’s four year long pattern of misconduct inflicted upon the unsuspecting public, most of whom were elderly citizens, and compounded by his lack of remorse, we feel compelled to recommend that he be disbarred. Disbarment is reserved for the most egregious matters. Office of Disciplinary Counsel v. Stern, 526 A.2d 1180 (Pa. 1987). Respondent’s actions deserve the maximum sanction,

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Barry O. Bohmueller, be disbarred from the practice of law.

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

ORDER

And now, this 23rd day of January, 2015, upon consideration of the report and recommendations of the disciplinary board dated March25,2014, and following oral argument, it is hereby ordered that Barry O. Bohmueller is disbarred from the bar of this Commonwealth 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.

Mr. Chief Justice Saylor, Madame Justice Todd, and Mr. Justice Stevens join the order.

Messrs. Justice Eakin and Baer dissent in favor of a five-year suspension.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    O’Brien v. Ohio Casualty Insurance Co.

      C.P. of Lackawanna County,
    No. 2002 CV 6690

      Daniel W. Munley, for plaintiffs.

      Richard G. Fine and Jeffrey E. Havran, for defendant.
    March 12, 2015
   MINORA, J.,

I. INTRODUCTION

Before the court is the declaratory judgment action of William O’Brien, Diane O’Brien and Charles Catania, Jr., which was filed on December 20,2002 with oral argument held on February 18, 2015. William and Diane O’Brien (hereinafter “plaintiffs O’Brien”) filed a declaratory judgment action complaint, pursuant to Pennsylvania’s Declaratory Judgments Act, 42 Pa.C.S.A. § 7531, seeking declaration that Ohio Casualty Insurance Company (hereinafter “defendant”) owed duties to both defend and indemnify plaintiffs O’Brien pursuant to a property and casualty policy of insurance.

On May 13, 2003, defendant filed an answer and new matter to plaintiffs O’Brien’s complaint for declaratory judgment. On November 21, 2003 plaintiffs O’Brien filed a motion for summary judgment. On May 27, 2004 the honorable judge Terrence R. Nealon issued a memorandum and order denying plaintiffs O’Brien’s motion for summary judgment on the ground that issues of fact existed as to whether the accident occurred on an insured location. On February 21, 2006 Charles Catania, Jr. (herein after “plaintiff Catania”) filed a petition for leave of court to intervene. Defendant filed its answer to plaintiff Catania’s petition to intervene on March 10, 2006 and its brief in opposition on March 22, 2006. A hearing on this matter was held on March 28, 2006, and on December 9, 2008 this court conditionally granted plaintiff Catania’s petition to intervene. The condition required plaintiff Catania to amend his petition to cure its technical defect by including a statement of relief sought and attaching the pleading that he intended to file if allowed to intervene. On July 30, 2009, the Honorable Judge Harold A. Thomson, Jr., S.J., granted plaintiff Catania’s petition to intervene.

On July 11, 2012, defendant Ohio filed a motion for summary judgment. On September 3,2012 the Honorable Judge Harold A. Thomson, Jr., S.J., denied defendant’s motion for summary judgment on the ground that genuine issues of material fact existed, necessitating determination from a trial by jury, making summary judgment inappropriate.

According to the parties’ filed joint stipulation of facts, this case arises out of an all-terrain vehicle (ATV) accident occurring on July 22,2001. Plaintiff Catania was in attendance at a graduation party at plaintiffs O’Brien’s residence. See joint stipulation of facts regarding declaratory judgment action, at fact number 5. Plaintiff Catania was driving an ATV owned by plaintiffs’ son, Casey O’Brien, when he hit loose gravel, causing the ATV to slide and strike a tree and a telephone pole. Id., at fact number 6,14,21. The ATV finally came to a rest in a yard located at 300 Lake Spangenberg Road, Lake Ariel, PA. Id., at fact number 21. As a result of the ATV accident, plaintiff Catania suffered serious personal injuries. Id., at fact number 6.

Plaintiffs O’Brien were issued a renewal homeowners policy from defendant regarding their property located at RR #3, Box 468, Lake Ariel, Pennsylvania. The policy of insurance was for the period of June 3, 2001 to June 30, 2002. See policy and declaration pages attached as Exhibit “C” to declaratory judgment action. Section II, Coverage E of the policy addresses personal liability and coverage for any bodily injury claims brought against an insured. Section II (1) (f) (2) sets forth certain policy exclusions and states that liability coverage does not apply to bodily injury arising out of “[t]he entrustment by an ‘insured’ of a motor vehicle or any other motorized land conveyance to any person.” Id., at 13. Subsequent language provides this policy exclusion does not apply to:

(2) a motorized land conveyance designed for recreational use off public roads, not subject to motor vehicle registration and:
(a) not owned by an ‘insured’; or
(b) owned by an ‘insured’ and on an ‘insured location’.

Id., at 14. Defendant made an internal determination that there should be no liability coverage nor duty to defend under the policy due to the aforementioned exclusion. Defendant argues that the accident, which occurred off the O’Brien’s property, did not occur on an insured location.

The policy defines “insured location” as:
a. The ‘residence premises’:
b. The part of other premises, other structures and grounds used by you as a residence and;
(1) Which is shown in the declarations or
(2) Which is acquired by you during the policy period for your use as a residence;
c. Any premises used by you in connection with a premises in 4.a. and 4.b. above;
d. Any part of a premises:
(1) Not owned by an ‘insured’; and
(2) Where an ‘insured’ is temporarily residing;
e. Vacant land, other than farm land, owned by or rented to an ‘insured’;
f. Land owned by or rented to an ‘insured’ on which a one or two family dwelling is being built as a residence for an ‘insured’;
g. Individual or family cemetery plots or burial vaults of an ‘insured’ or
h. Any part of a premises occasionally rented to an ‘insured’ for other than ‘business’ use.

Id., at 1. All plaintiffs argue that their use of the area in which the accident occurred constitutes as an insured location due to their regular and undisputed use of the accident location.

All plaintiffs contend that defendant has a duty to defend plaintiffs O’Brien in this action brought against them, a duty to bear all costs of such defense and a duty to reimburse plaintiffs O’Brien for all of their costs and legal fees incurred. Furthermore, all plaintiffs seek a declaration that, pursuant to the express and implied terms of the policy, defendant is required to defend the above mentioned action on behalf of plaintiffs O’Brien.

II. ISSUE

1. Does the defendant owe a duty to defend and indemnify plaintiffs O’Brien pursuant to their policy of insurance?

III. DISCUSSION

Both the duty to defend and the duty to indemnify may be resolved in a declaratory judgment action. American Nat. Property and Cas. Companies v. Hearn, 93 A.3d 880, 884 (Pa. Super. 2014). Both duties flow from a determination that the complaint triggers coverage. Id. “We focus primarily on the duty to defend because it is broader than the duty to indemnify.” Id. Therefore, “if an insurer does not have a duty to defend, it does not have a duty to indemnify.” Id.

An insurer’s obligation to defend does not arise every time an insured is sued. The Philadelphia Contributionship Insurance Co. v. Shapiro, 798 A.2d 781, 786 (Pa. Super. 2002). Instead, an insurer need only defend an insured in a claim “when the underlying lawsuit falls within the coverage of the policy.” Id. “The duty to defend only lasts until such time as the claim is confined to a recovery that the policy does not cover.” Haines v. State Auto Prop. And Cas. Ins. Co., 2010 WL 1257982, 3 (E.D. Pa. 2010) aff’d 417 Fed. Appx. 151 (3d. Pa. 2011). In attempting to interpret the language of an insurance policy, the goal is to ascertain the intent of the parties as manifested by the language of the written insurance agreement. Matcon Diamond, Inc. v. Penn Nat-Ins. Co., 815 A.2d 1109, 1112 (Pa. Super. 2003).

When interpreting an insurance contract:

[Wjords that are clear and unambiguous must be given their plain and ordinary meaning. Where ambiguities are found, they must be construed in the light most favorable to the insured. However, a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction. An ambiguity exists only when a policy provision is reasonably susceptible of more than one meaning. Courts should read policy provisions to avoid ambiguities, if possible, and not torture language to create them.

State Farm Fire & Cas. Co. v. MacDonald, 850 A.2d 707, 710-11 (Pa. Super. 2004); Tenos v. State Farm Ins. Co., 716 A.2d 626, 628-29 (Pa. Super. 1998). The court in MacDonald defined the terms “use” and “in connection with” by their plain and ordinary meanings because, as in this case, the policy failed to define the terms. MacDonald, 850 A.2d at 711. As defined in MacDonald:

‘use’ means ‘continued or repeated exercise or employment,’ or ‘habitual or customary practice.’ ‘Connection’ means ‘the act of connecting: a coming into or being put in contact,’ and ‘with’ is defined as ‘alongside of: near to.’

Id. (citations omitted).

In the case at hand, there are several material facts that are undisputed:

(1) Defendant Ohio made an internal determination that there would be no coverage or duty to defend due to the exclusion contained in Section II, Coverage E of the policy.
(2) By way of memorandum and order, the Honorable Judge Nealon issued a decision determining the ATV is not subject to motor vehicle registration, that the ATV was owned by an insured, and that since the ATV was owned by an insured, the only possible basis for a duty to defend would be Section 2(b) of the policy which provides coverage for a motorized land conveyance owned by an insured and on an insured location.
(3) The only definition of insured location that would be applicable to this matter would be Section (c) which states “any premises used by you in connection with a premises in 4.a and 4.b above.”
(4) The accident “occurred at or near the comer of Hitchcock and Lake Spangenberg Road.” Lake Spangenberg Road was a township road and was not posted for AT Vs or snowmobiles.
(5) Plaintiff O’Briens’ house is a quarter mile from the location of the accident, and “[t]o get from the O’Briens’ residence to the location of the accident you had to walk past four [(4)] or five [(5)] other properties.”
(6) The tree plaintiff Catania struck was located in a homeowners’ yard located at 300 Lake Spangenberg Road, Lake Ariel, PA, owned by John Norcross.
(7) With regard to the real property where the accident occurred, plaintiffs O’Brien had never lived or been at the property.
(8) Casey O’Brien would normally drive the ATV behind his house on a path in the woods; “[He] may have driven the ATV on Lake Spangenberg Road once or twice.”
(9) “When [plaintiffs O ’ Brien] would exit their driveway in a motor vehicle, ninety-five percent (95%) of the time they would take a right onto Lake Spangenberg Road and drive past the area of the accident.”

See joint stipulation of facts regarding declaratory judgment action.

Plaintiffs rely on the MacDonald decision. In that decision, the Superior Court supra found the insured used an adjacent field in connection with his residence premises. MacDonald, 850 A.2d at 711. The plain meaning of the term “insured location” contained in his homeowner’s insurance policy required the insurance company to defend his claim. Id. However, in MacDonald the facts revealed the insured rode his ATV frequently in the adjacent field where the accident took place. Id., at 708. In the present case, Casey O’Brien only rode his ATV on Lake Spangenberg Road once or twice. See joint stipulation of facts regarding declaratory judgment action, at fact number 31. Furthermore, plaintiffs O’Brien had never been on nor resided on the property where plaintiff Catania struck the tree resulting in the personal injuries. Id., at fact number 29.

This case is almost identical to the Haines case, where the United States District Court for the Eastern District of Pennsylvania found the definition of “insured location” in the policy did not encompass a publicly maintained road, and the insurance company did not owe its insureds a duty to defend under their homeowners’ policy. Haines, 2010 WL 1257982, at 7. While Haines is not binding on our court, we find its uncanny similarities to our case render it persuasive in our decision. In Haines, the insureds’ golf cart was involved in an accident while being driven by the insureds’ son’s friend on a public alleyway located behind the insureds’ home. Id., at 2. The policy exclusion and the definition of an insured location are identical to those contained in plaintiff O’Brien’s policy. The Haines Court “concluded that the term ‘a premises you use,’ although broad enough to include a private road, [is] not broad enough to encompass a public thoroughfare.” Id., at 6. In the present case, while plaintiffs O’Brien utilize Lake Spangenberg Road ninety-five percent (95%) of the time they exit their property, the road is maintained by Jefferson township. The policy term “premises you use” cannot extend to coverage on a public road. Furthermore, the Huntingdon County 05-51 court in Gardner concluded “[w]e cannot and will not conclude that the language of the exception is sufficiently broad to encompass public roads, particularly since the legislature has ordained it unlawful to operate an ATV on public roads not designated and posted as an ATV road.” See Nationwide Mut. Ins. Co. v. Gardner, 79 Pa. D. & C. 4th 150, at 163 (where the court denied insurance coverage for an ATV accident holding the definition of insured location in the homeoowner’s insurance policy was not broad enough to include a public road.) While not binding, We find its reasoning to be persuasive.

Plaintiffs O’Brien argue that their frequent use of Lake Spangenberg Road for ingress and egress from their property constitutes as use in connection with their premises. However, according to the plain meaning of use, as interpreted in MacDonald, plaintiffs O’Brien did not repeatedly or customarily use either a private road nor the private property where the accident concluded. Plaintiffs O’Brien admit to never having been at the precise location of the ATV accident. Additionally, Casey O’Brien admits to only riding his ATV on Lake Spangenberg Road once or twice. Arguably, this would not meet the definition of “use” contained in the homeowner’s insurance policy, nor as interpreted in Haines, because Lake Spangenberg Road is a public thoroughfare.

Accordingly, applying the law to those undisputed facts requires us to deny plaintiffs’ declaratory judgment action.

An appropriate order follows.

ORDER

And now to wit, this 12th day of March, 2015, upon due consideration of the declaratory judgment action, responsive pleadings and briefs and the able verbal and written arguments of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed that said declaratory judgment action is denied.

That being so, it is declared that the location of the ATV accident cannot meet the policy definition of an “insured location” under the policy of insurance. Therefore, William and Diane O’Brien lack insurance coverage and Ohio Casualty Insurance Company is not required to either defend nor indemnify the O’Briens pursuant to their policy of insurance.


author: DEMBE, J.,

text:
    Braverman v. Estate of Daniels

      Benjamin A. Garber, for plaintiffs.

      Walter Weir, Jr., Nicole D. Miller, Kenneth E. Aaron and Ryan N. Boland, for defendants.
    March 30, 2015
   DEMBE, J.,

Before the court are two motions for summary judgment filed by plaintiffs. The first motion requires this court to determine whether a now deceased member of a limited liability company breached his fiduciary duties to the company and its members, committed fraud, tortiously interfered with a contract, converted funds for his personal benefit, and obtained unjust enrichment. For the reasons below, this court finds that deceased member converted company funds for his personal benefit, and obtained unjust enrichment. The second motion for summary judgment requires this court to determine whether defendants may maintain the counterclaims of contribution and breach of a limited liability agreement/breach of fiduciary duty. In addition, the second motion requires this court to determine whether defendants may maintain the claim seeking the winding-up of a limited liability company and the appointment of a liquidating trustee. For the reasons below, defendants may not maintain any of these surviving counterclaims.

BACKGROUND

Plaintiff, Braverman, Daniels and Kaskey, Ltd. (“plaintiffs” or “BDK”), is a law firm and a Pennsylvania limited liability company based in Philadelphia, Pennsylvania. Individual plaintiffs David L. Braverman (“Braverman”) and John E. Kaskey (“Kaskey”), are founding members of BDK along with Robert C. Daniels (‘Daniels”) who died on October 3, 2011. Braverman was at all times relevant to this action the “managing member” of BDK. Individual defendants Sean J. Daniels and Christopher E. Daniels are the executors of defendant, the Estate of Robert C. Daniels (the “Estate of Daniels”).

THE DANIELS’ LIFE INSURANCE POLICY

BDK was founded by attorneys Braverman, Daniels and Kaskey pursuant to a Limited Liability Company Agreement (the “LLC Agreement”), which bears the signatures of each of the three founding members and became effective on January 1,2009. The LLC Agreement contained a key—man life insurance provision which states in pertinent part:

The company [BDK] shall apply for, and maintain “key man” life insurance policies on the lives of...
David L. Braverman $3,000,000.00
Robert C. Daniels $3,000,000.00.

Pursuant to the key-man life insurance provision, BDK obtained a key-man policy (the “term policy”), issued by an entity named Banner Life Insurance Company (“Banner Insurance”). The term policy identified herein decedent, Daniels, as the insured. The term policy also contained the following provision:

CONVERSION

This policy may be converted to a new policy on the insured’s life.... The conversion may be made:
***
2. if we [the Insurer] receive the owner’s written request and application for conversion.
⅝⅜⅝
8. [T]he new policy will be subject to any assignment of this policy received at our office.

At some point in 2003, BDK borrowed funds in the amount of $1,000,000.00 from an entity named “Bancorp Bank.” To loan the funds, Bancorp Bank required collateral in the form of proceeds from the Term Policy. Consequently, on July 17, 2004 BDK, as the owner of the policy, executed a “Collateral Security Agreement” which provided Bancorp Bank with a lien upon the proceeds of that policy. The Collateral Security Agreement specifically stated:

This assignment is collateral security for any and all liabilities of the undersigned [BDK] or any of them to the assignee [Bancorp Bank] now existing or that may hereafter arise in the ordinary course of business between any of undersigned and [Bancorp Bank]....
The undersigned [BDK] expressly agree that the assignee shall have the sole right to receive all benefits and to exercise all options and privileges described in the said policy....

On July 19, 2004, Daniels notified Banner Insurance that the Collateral Security Agreement had created a lien upon the term policy. The notification letter from Daniels to Banner Insurance specifically stated:

I am now delivering to you herewith the Collateral Security Agreement, assigning whatever portion of the proceeds of the above-referenced life insurance policy is necessary to pay the pro-rata liability of the named insured, Robert C. Daniels, that is due and outstanding to the Bancorp Bank at the time of said named insured’s death.
David L. Braverman, as managing member of [BDK] has executed this assignment on behalf of the policy owner.

Beginning June, 2005, Daniels ceased practicing law with BDK. On September 8, 2005, Braverman and Kaskey formed Braverman & Kaskey, P.C. (“B&K”), a law firm and professional company based in Philadelphia, Pennsylvania.

On October 20, 2005, BDK executed a beneficiary change form whereby ownership interest in the proceeds of the term policy was transferred from BDK to the Robert C. Daniels Irrevocable Deed of Trust (the “Daniels Deed of Trust”). Braverman, as managing member of BDK, executed this document. Subsequently, Daniels notified Banner Insurance that the Daniels Deed of Trust was the new owner of the term policy. On June 12,2006, Banner Insurance acknowledged the change of ownership to the term policy. Despite the change in ownership, the term policy continued to operate as collateral to the loan from Bancorp Bank, pursuant to the terms of the aforementioned Collateral Security Agreement.

On July 10, 2006, Daniels executed an application for a “Conversion Request.” The application specifically instructed Banner Insurance to change the term policy into a “Continuity Lifetime” policy. The application was accepted and Banner Insurance converted the term policy into a Continuity Lifetime policy. Despite this conversion, the newly-created Continuity Lifetime policy was “subject to any assignment” in accordance with the terms of the term policy originally issued by Banner Insurance.

On July 28, 2006, the Daniels Deed of Trust sold its policy to an entity named Coventry First, LLC (“Coventry”). The contract of sale, signed by a Trustee on behalf of the Daniels Deed of Trust, specifically stated: “there are no liens on the policy.” In conjunction with the sale of the policy, the Daniels Deed of Trust also executed a document titled Pennsylvania Life and Viatical Settlement Application (the “viatical settlement”). The viatical settlement asked seller to answer whether or not the Continuity Lifetime policy was “subject to a lien.” The seller responded to this question by circling the answer “no,” and Daniels himself affixed his signature at the bottom the document.

On August 18, 2006, an entity named Ritchie Risk-Linked Strategies Trading (Ireland) II Ltd. (“Ritchie Risk”) acquired the Continuity Lifetime policy from Coventry. In the written contract thereto, Coventry represented that the Continuity Lifetime policy, “to the Seller’s knowledge, [shall be] free of any Lien imposed in favor of any third party.”

On June 20,2007, Ritchie Risk commenced Chapter 11 bankruptcy proceedings in the United States Bankruptcy Court for the Southern District of New York (the “bankruptcy proceedings”). On January 17, 2008, the Bankruptcy Court approved the sale of the Continuity Life policy from Ritchie Risk an entity named Nutmeg Life Settlement Trust (“Nutmeg”). On January 17,2008, the Bankruptcy Court approved the sale of substantially all the assets of Ritchie Risk to Nutmeg, including the Continuity Lifetime policy.

Daniels died on October 3, 2011, and Bancorp Bank filed a death benefit claim against the Continuity Lifetime policy, pursuant to the Collateral Assignment Agreement. Soon thereafter, Nutmeg filed with the Bankruptcy Court a motion to enjoin Bancorp Bank from pursuing any claim against the policy in any forum whatsoever. Bancorp Bank participated in the ensuing hearing to protect its lien interest. On May 22, 2012, The Bankruptcy Court issued its Memorandum Decision which reaffirmed the sale of the policy to Nutmeg and enjoined Bancorp Bank from pursuing its claims against the Continuity Lifetime policy. Though Bancorp Bank could no longer assert a death benefit claim against the policy, it continued to assert its rights against BDK for the full balance of the loan. As of October 31, 2011, the payoff amount for the the loan and interest thereon amounted to $504,027.78.

THE PITTSBURGH LAWSUITS

On April 2, 2003, Daniels and BDK agreed to represent two clients in two related lawsuits in Pittsburgh, Pennsylvania (the “Pittsburgh Lawsuits”). Under the terms of the two agreements, Daniels and BDK would receive compensation calculable as 33.3% of recovery, if any, plus any costs expended by BDK in pursuit of the litigation. In the course of the Pittsburgh Lawsuits, Daniels and BDK were terminated as counsel, and Mr. John A, Caputo, Esquire (“Caputo”), replaced Daniels as counsel. On June 27, 2006, Daniels forwarded a letter to Caputo. In the letter, Daniels acknowledged receipt of partial payment for services which he and BDK had rendered in the Pittsburgh Lawsuits. The letter specifically stated:

Dear John:
⅜**
I do wish to acknowledge the receipt of your law firm’s check in the amount of...$14,719.26 in partial reimbursement of the costs that have been incurred by the law firm of Braverman Daniels Kaskey Ltd., Robert C. Daniels, Ltd. and Sprague & Sprague in these matters. However, I do take great exception to your failure to remit the entire outstanding amount of costs incurred, i.e....$33,347.22...incurred, as per the retainer agreements that were executed by [both clients] at the time I and my former law firm of Braverman Daniels Kaskey Ltd. undertook these representations.

On March 13, 2007, Caputo sent a letter to Daniels. This letter stated in pertinent part:

Dear Mr. Daniels:
***
this letter is sent to acknowledge that you and your former law firm...performed services [in the Pittsburgh Lawsuits] and accordingly, if there is a monetary recovery in either or both cases you and your former firm would be due fees, the amount of which will be determined in light of all the relevant circumstances existing and known at the time the fees are received by my office.

On February 3, 2011, Daniels executed an “Escrow Agreement.” Under the terms of this agreement, the firm “Cooper & Ziegler” would hold in escrow any funds recovered by Caputo in the Pittsburgh Lawsuits. On February 16, 2011, Cooper & Ziegler sent to Daniels a cashier’s check, no. 6674250, in the amount of $18,627.29, payable to “Braverman Daniels & Kaskey LLC.” BDK never received the partial payment of $14,719.26 which Daniels had received from Caputo prior to June 27, 2006, nor the final payment of $18,627.29 which Cooper & Ziegler remitted to Daniels by letter dated February 16, 2011.

THE INSTANAT ACTION

Plaintiffs commenced the instant action in September 2013, and filed a complaint thereunder on November 8, 2001. In the complaint, plaintiffs have asserted the claims of breach of fiduciary duty in Count I, fraud in Count II, Tortious Interference (with Existing Business Relations) in Count III, Conversion in Count IV, and Unjust Enrichment in Count V.

On January 15, 2014, defendants filed preliminary objections seeking to dismiss the complaint. The court overruled defendants’ preliminary objections in their entirety on March 25, 2014.

On April 28, 2014, defendants responded to the complaint by filing an answer with new matter and six distinct counterclaims. Plaintiff filed preliminary objections to each of the counterclaims asserted by defendants. On July 3, 2014, this court sustained-in-part and overruled-in-part the preliminary objections to defendants’ counterclaims. As a result of this court’s decision, only three counterclaims survive: the first (Count I), is based upon the theory of contribution; the second (Count V), is based upon the theory of breach of the LLC Agreement/ breach of fiduciary duty; the last (Count VI), is based upon defendants’ prayer for the appointment of a liquidating trustee.

On November 17, 2014, defendants filed a motion in limine seeking to preclude plaintiffs from offering at trial any testimonial evidence, or orally mentioning before the jury, any of the matters which occurred prior to the death of Daniels. By order dated November 20, 2014, this court denied the motion in limine.

Also on November 17,2014, plaintiff filed two motions for summary judgment: the first motion asks the court to enter judgment in favor of plaintiff and against defendants on all claims asserted by plaintiff in the complaint; the second motion asks the court to enter judgment in favor of plaintiff and against defendants on all counterclaims asserted by defendant.

On December 17, 2014, defendants filed a motion for reconsideration asking the court to vacate its prior order which had denied the motion in limine. Defendants’ motion for reconsideration, along with plaintiffs’ two motions for summary judgment, are open and ripe for a decision.

DISCUSSION

In Pennsylvania,

[sjummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.

I. Plaintiffs are entitled to summary judgment on the claim of conversion.

Plaintiffs’ motion for summary judgment asserts that Daniels misappropriated funds owed to BDK from the Pittsburgh Lawsuits. Plaintiffs assert that this misappropriation constituted conversion for which plaintiffs are entitled to relief.

In Pennsylvania, conversion is defined as —
the deprivation of another’s right of property in, or use or possession of, a chattel, or other interference therewith, without the owner’s consent and without lawful justification.
Specific intent is not required [to prove conversion], but rather an intent to exercise dominion or control over the goods which is in fact inconsistent with the plaintiff’s rights establishes the tort. Money may be the subject of conversion.

In this case, Daniels, without justification, deprived BDK of its property rights in a portion of the proceeds from the Pittsburgh Lawsuits. The conduct of Daniels was inconsistent with the property rights of BDK, and the motion for summary judgment of plaintiffs is granted as to Count IV of the complaint.

II. Plaintiffs are entitled to summary judgment on the alternative claim of unjust enrichment.

Plaintiffs assert that they are entitled to summary judgment on the claim of unjust enrichment because Daniels misappropriated funds which he received for work he performed on the Pittsburgh Lawsuits on behalf of BDK. In Pennsylvania,

An action based on unjust enrichment is an action which sounds in quasi-contract or contract implied in law. A quasi-contract imposes a duty, not as a result of any agreement, whether express or implied, but in spite of the absence of an agreement, when one party receives unjust enrichment at the expense of another.
The elements of unjust enrichment are benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.

In this case, Daniels received from Caputo and Cooper & Ziegler funds totaling $33,346.55. The proceeds were conferred upon Daniels for the work which he had performed in the Pittsburgh Lawsuits on behalf of BDK. Daniels retained the proceeds under circumstances which are inequitable to BDK, and the motion for summary judgment of plaintiffs is granted in part as to the claim of unjust enrichments.

III. Plaintiffs are entitled to summary judgment on all the surviving counterclaims of defendants.

Plaintiffs filed a second motion for summary judgment asking the court to dismiss defendants’ remaining counterclaims which assert contribution (Count I), breach of the LLC agreement and breach of fiduciary duty (Count V), and appointment of a liquidating trustee (Count VI).

In Pennsylvania,

[wjhere the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law.

In this case, defendants admit that that they “did not seek any discovery in this matter in order to preserve the protections of the Dead Man’s Act, 42 Pa. C.S.A. §5930.” Thus, defendants admit that they have not developed any evidence to prove the issues presented in their counterclaims, and this court has found no such evidence anywhere in the record. Defendants bear the burden of proving the issues asserted in their counter-claim and may not rest solely on their pleadings and answers. For this reason, the motion for summary judgment of plaintiffs as to defendants’ counterclaims is granted and the surviving claims of contribution (Count I), breach of the LLC Agreement and breach of fiduciary duty (Count V), and winding up and appointing a liquidating trustee (Count VI), are dismissed in their entirety.

ORDER

And now, this 30th day of March 2015, upon consideration of defendants’ motion for reconsideration of the court’s order dated November 20, 2014, and any response thereto, and for good cause shown, it is hereby ordered that the motion for reconsideration is granted and the order dated November 20, 2014 is vacated.

      . Business Entity Filing History, Exhibit 3 to the motion for summary judgment of plaintiff, control no.14111940.

      . Admission of defendant, the Estate of Daniels, in its response in opposition to plaintiffs motion for summary judgment, control no. 14111940.

      . Limited Liability Agreement of Braverman Daniels Kaskey, Ltd. Exhibit 4 to the motion for summary judgment of plaintiff, control no. 14111940. Exhibit A attached to the LLC Agreement shows the following percentages of membership interest: Braverman 40%, Daniels 40% and Kaskey 20%.

      . Limited Liability Agreement of Braverman Daniels Kaskey, Ltd., ¶15, Exhibit 4 to the motion for summary judgment of plaintiff, control no. 14111940.

      . Life Insurance Policy Exhibit A to the motion for summary judgment of plaintiff, control no. 14111940.

      . Id. p. 3. The term policy shows an effective date of October 8, 2003 and an expiration date of October 8,2033. The personal information statement contained in the term policy states that Braverman and Daniels were each 50% equity owners of BDK, and that Braverman had obtained from a different carrier a policy similar to the term policy in question. Id. p. 17 of 138 titled “personal information statement.”

      . Id. p. 5.

      . Letter extending maturity date of Loan no. 139002213, to BDK, introductory paragraph, Exhibit 6 to the motion for summary judgment of plaintiff, control no. 14111940.

      . Collateral Security Agreement, Exhibit B to the motion for summary judgment of plaintiff, control no.14111940

      . Letter from Daniels to Banner Life Insurance Company, Exhibit B to the motion for summary judgment of plaintiff, control no. 14111940.

      . Business Entity Filing History, Exhibit A to defendants’ response in opposition to the motion for summary judgment of plaintiff, control no. 14111940.

      . Beneficiary Change Form, Exhibit C to the motion for summary judgment of plaintiff, control no. 14111940.

      . Id.

      . Fax from Daniels to Banner Life Insurance Company, Id.

      . Confirmation Letter, Exhibit D to the motion for summary judgment of plaintiff, control no. 14111940.

      . Conversion Request: Application, Exhibit E to the motion for summary judgment of plaintiff, control no. 14111940.

      . Id. p. 2 of 2.

      . Life Insurance Policy, p. 5, Exhibit Ato the motion for summary judgment of plaintiff, control no. 14111940.

      . Admission of defendants, response in opposition to plaintiff’s motion for summary judgment, control no. 14111940,¶ 20; Life Insurance Policy Purchase Agreement between Coventry First LLC as buyer and the Daniels Deed of Trust as seller, Exhibit F to the motion for summary judgment of plaintiff, control no. 14111940. Full transfer of the policy from the Daniels Deed of trust to Coventry underwent an intermediary stage. Through the intermediary stage, an entity named U.S. Bank, N.A. acquired the Continuity Lifetime Policy on behalf of its client, Coventry, on July 24, 2006. Exhibit H to the motion for summary judgment of plaintiff, control no. 14111490.

      . Conversion Request: Application, l[3(iv). Exhibit F to the motion for summary judgment of plaintiff, control no. 14111940.

      . Pennsylvania Life and Viatical Settlement Application, Exhibit G to the motion for summary judgment of plaintiff, control no. 14111940. A viatical settlement is a “transaction in which a terminally ill or chronically ill person sells the benefits of a life-insurance policy... for a lump sum cash payment equal to a percentage of the policy’s face value.” BLACK’S LAW DICTIONARY 13 77 (7th ed. 1999).

      . Id.

      . Master Policy Purchase Agreement, Exhibit I plaintiffs’ motion for summary judgment, control no. 14111940.

      . Id., Section 3.02(a)(ii)(B).

      . Complaint, ¶ 36; admission of defendants in their answer to the complaint with new matter and counterclaims, ¶ 36;

      . Complaint, ¶ 37; admission of defendants in their answer to the complaint with new matter and counterclaims, ¶ 37.

      . Payoff letter dated October 31, 2011, Exhibit J to plaintiffs motion for summary judgment, control no. 141Í1940.

      . Engagement Letters dated March 21,2003, Exhibit A attached to plaintiffs praecipe to supplement, filed on April 14, 2014.

      . Letter from Robert C. Daniels, Esquire to John A. Caputo, Esquire, dated June 27, 2006. Exhibit k to the motion for summary judgment of plaintiff, control no. 14111940 (emphasis supplied).

      . Letter from John A. Caputo, Esquire, to Robert Daniels, Esquire, dated March 13, 2007, Exhibit F to the response of defendants in opposition to the motion for summary judgment of plaintiffs, control no. 14111940

      . Cashier’s check, Exhibit O to plaintiff’s motion for summary judgment, control no. 14111940.

      . Stimmlerv. Chestnut Hill Hosp., 602 Pa. 539,553,981 A.2d 145, 153-54 (2009).

      . Motion for summary judgment of plaintiffs. Control no. 14111940, ¶¶ 53-61.

      . McKeeman v. Corestates Bank. N.A., 2000 Pa. Super 117, 751 A.2d 655, 659 (2000).

      . Shonberger v. Oswell, 365 Pa. Super. 481, 485, 530 A. 2d 112, 114(1987).

      . Plaintiffs are entitled to partial summary judgment on the claim of conversion because Daniels, as a member of BDK with a 40% share in the ownership thereof, was entitled to retain 40% of the proceeds flowing from the Pittsburgh Lawsuits. Accordingly, defendants owe BDK 60% of the $33,347.22 which Daniels received as payment for work performed on behalf of BDK in the Pittsburgh Lawsuits.

      . Metroclub Condo. Ass’n v. 201-59 N. Eighth St. Assodates, L.P., 2012 Pa. Super. 122,47 A.3d 137, 148 (2012)

      . Plaintiffs are entitled to recover 60% of the fees collected by Daniels from the Pittsburgh Lawsuits. See footnote 36, supra.

      . Plaintiffs’motion for summary judgment, control no. 14111941.

      . Thompson v. Ginkel, 2014 Pa. Super. 125, 95 A.3d 900, 904 (2014), reargument denied (Aug. 18, 2014), appeal denied, 108 A.3d 36 (Pa. 2015).

      . Response in opposition to plaintiffs motion for summary judgment, control no. 14111941, ¶ 70. The court notes that the Dead Man’s Act, 42 Pa. C.S.A. 55930, plays no role in the resolution of the claims of conversion and unjust enrichment asserted by plaintiffs in their complaint, as well as resolution of all the surviving claims asserted by defendants in their counterclaim.