author: WATKINS, Member,

text:
    In the Matter of Arora

      Disciplinary Board Docket no. 19 D.B. 2000.
    May 2, 2003
   WATKINS, Member,

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

Rubina Wadhwa Arora filed a petition for reinstatement to the bar of Pennsylvania on February 26, 2002. Petitioner was suspended from the practice of law by order of the Supreme Court of Pennsylvania dated March 3, 2000. This suspension was for an indefinite period of time, retroactive to December 1,1996, with leave to petition for reinstatement after the expiration of two years from the effective date of the order. This suspension was reciprocal and was based on a September 12, 1996 suspension from practice before the Immigration and Naturalization Service and the Executive Office for Immigration Review, U.S. Department of Justice.

A reinstatement hearing was held on October 4,2002, before Hearing Committee 3.08 comprised of Chair Wayne M. Pecht, Esquire, and Members Randall G. Gale, Esquire, and Ronald M. Katzman, Esquire. Petitioner appeared pro se. At the time of the hearing, testimony was taken from petitioner and exhibits submitted into evidence. Office of Disciplinary Counsel did not oppose the petition for reinstatement.

The Hearing Committee filed a report on January 10, 2003, recommending that the petition for reinstatement be granted.

This matter was adjudicated by the Disciplinary Board at the meeting of March 26, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was bom in 1962 and was admitted to the practice of law in the Commonwealth of Pennsylvania in 1989. Her current address is 44201 Bristow Circle, Ashburn, VA 20147.

(2) In 1990, petitioner moved from Pennsylvania to the Virginia-Maryland metro area and began practicing immigration law.

(3) During the course of her immigration practice, she had clients that received work authorizations to be in the United States who wanted to travel back to their home countries. To obtain advance parole to return to their native countries and then come back to the United States, petitioner’s clients had to show emergency circumstances or family hardships.

(4) Two clients of petitioner had her submit medical records that petitioner knew to be fraudulent in order to obtain pertinent documents.

(5) On December 18, 1995, the office of the general counsel of the INS issued a petition for attorney discipline against petitioner charging her with two counts of willfully misleading, misinforming or deceiving an officer or employee of the service concerning a material and relevant fact in connection with an immigration case, i.e., submitting fraudulent medical records in support of an application for a travel document in violation of 8 CFR §242.3(a)(3). Petitioner did not oppose this petition and consented to the imposition of discipline.

(6) On September 12,1996, Assistant Chief Immigration Judge Kevin D. Smith issued a decision and order suspending petitioner from practice before the INS and the EOIR, U.S. Department of Justice, for an indefinite period of time, with leave to file a petition for reinstatement after the expiration of two years.

(7) On June 18, 1999 and July 29, 1999, petitioner filed motions requesting reinstatement to practice before the INS and EOIR. In August 1999, Judge Smith granted petitioner’s motions and reinstated her to practice before the INS and EOIR and she currently is eligible to represent aliens before these bodies.

(8) On November 18, 1999, a petition was filed with the Supreme Court of Pennsylvania by Office of Disciplinary Counsel for reciprocal discipline and on March 3, 2000, petitioner was suspended for an indefinite period retroactive to December 1,1996, with leave to petition for reinstatement after the expiration of two years from the effective date of the order.

(9) Petitioner has been suspended for over six years.

(10) Petitioner has not had any criminal charges filed against her concerning her misconduct.

(11) During her suspension, petitioner kept up-to-date with immigration law and met her requirements for continuing legal education in Pennsylvania.

(12) Petitioner expressed sincere remorse for her conduct and recognized that such conduct was dishonest.

(13) Petitioner plans to implement safeguards in her practice to assure authenticity of documents she submits on behalf of her clients.

III. CONCLUSIONS OF LAW

(1) Petitioner has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

(2) Petitioner’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or administration of justice nor subversive of the public interest.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by Rubina Wadhwa Arora. By order of the Supreme Court of Pennsylvania dated March 3, 2000, petitioner was suspended for an indefinite period of time, retroactive to December 1,1996, with leave to petition for reinstatement after the expiration of two years from the effective date of the order.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume practice until reinstated by the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, she has the burden of proving by clear and convincing evidence that she possesses the moral qualifications, competency and learning in the law required for admission to practice in this Commonwealth. In addition, petitioner has the burden of demonstrating that her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

A reinstatement proceeding is an inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitation efforts the lawyer has made since the time the sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers Inc. v. Disciplinary Board of Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner admitted to submitting fraudulent documents to the INS in connection with her immigration law practice. No criminal charges were filed against petitioner and she consented to be suspended before the INS and EOIR. Her suspension in Pennsylvania was reciprocally applied as a result of the INS and EOIR suspension.

Petitioner presented evidence that she has rehabilitated herself. During her suspension, she maintained her competence in the law by reading journals devoted to immigration law. She fulfilled her course requirements for continuing legal education. She was reinstated to practice before the INS and EOIR in August 1999 and has since handled four cases. If reinstated to the bar of Pennsylvania, petitioner plans to practice immigration law in Virginia as a sole practitioner. She understands that safeguards are necessary in her solo practice to avoid the problems she had in the past. In that regard, petitioner conferred with other attorneys in solo practice to get ideas and has now set up a format for handling documents submitted by clients.

The rules relating to practice before the INS and EOIR permitted petitioner to resume her practice of immigration law without having to be reinstated to practice in Pennsylvania. She has not represented herself as an attorney licensed to practice in this Commonwealth.

Petitioner expressed sincere remorse for her misconduct and a genuine desire to regain her Pennsylvania law license.

The record shows that petitioner has met with clear and convincing evidence her burden of proving that she is morally qualified, competent and learned in the law. Furthermore, petitioner has demonstrated that her re-admission will not be detrimental to the bar or to the public. For these reasons 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, Rubina Wadhwa Arora, 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.

Board Member Newman did not participate in the March 26, 2003 adjudication.

ORDER

And now, July 29, 2003, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated May 2,2003, 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.


source: Caselaw Access Project

author: PECK, Member,

license: Public Domain

text:
    Office of Disciplinary Counsel v. Zell

      Disciplinary Board Docket, no. 154 D.B. 2000.
    April 4, 2003
   PECK, 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 May 21, 2001, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against Mary McNeill Zell, respondent. The petition charged respondent with violation of the Rules of Disciplinary Enforcement and Rules of Professional Conduct based on her failure to appear for a private reprimand.

Disciplinary hearings were held on October 17 and December 17, 2001, before Hearing Committee 1.08 comprised of Chair Robert I. Whitelaw, Esquire, and Members John S. Summers, Esquire, and Margarete Pawlowski Choksi, Esquire. Respondent appeared pro se and presented her own testimony.

The Hearing Committee filed a report on November 13,2002, and found that respondent violated the rules as charged in the petition for discipline. The committee recommended that respondent be suspended for a period of one year and one day.

The parties did not take exception to the report of the committee.

This matter was adjudicated by the Disciplinary Board at the meeting of January 15, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of any 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 was bom in 1947 and was admitted to practice law in the Commonwealth of Pennsylvania in 1977. Her residence is 145 Carpenter Lane, Philadelphia, PA 19119. She is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) By letter dated November 30, 2000, Elaine M. Bixler, executive director and secretary of the Disciplinary Board, informed respondent that:

(a) Respondent had been previously advised of the complaint against her alleging violations of the Rules of Professional Conduct and that the investigation into the complaint had been completed;

(b) It had been determined that the matter be concluded by a private reprimand before the board, for violation of R.P.C. 1.3, 1.4(b), and 1.16(d);

(c) She would be notified in advance of the time and place for the next executive session of the board; and

(d) Respondent had the option of attending the private reprimand, which would be final, or of notifying the office of the secretary, in writing, within 20 days of the date of the letter, that respondent would not appear for the private reprimand and that she would like her case to be referred for institution of a formal proceeding pursuant to Pa.R.D.E. 208(a)(6) and D.B. Rule §87.54.

(4) Respondent was sent the November 30, 2000 letter by regular mail and certified mail, return receipt requested.

(5) Respondent received that letter.

(6) A copy of the November 30, 2000 letter was also hand-delivered to respondent at 8:35 a.m., December 8, 2000, by Robert M. Rancitelli, investigator, Office of Disciplinary Counsel, who personally handed the letter to Harold Zell, respondent’s husband, at her home address, 145 Carpenter Lane.

(7) Respondent did not notify, in writing, the secretary of the Disciplinary Board within 20 days of the date of the letter that:

(a) she did not intend to appear for the private reprimand; or

(b) she wanted the board to institute formal proceedings.

(8) By notice to appear for private reprimand following informal proceedings, dated December 21,2000, Ms. Bixler directed respondent to appear before the Disciplinary Board of the Supreme Court of Pennsylvania on Wednesday, January 17,2001,10:30 a.m., in the Pavillion I and II of the Ritz Carlton Hotel, 10 Avenue of the Arts (a/k/a 10 S. Broad Street), Philadelphia, PA.

(9) A copy of that notice to appear was hand-delivered to respondent at 9 a.m. on December 29, 2000, by Mr. Rancitelli, who personally handed the letter to respondent at her home address on Carpenter Lane.

(10) Respondent willfully failed to appear on January 17, 2001, for her scheduled private reprimand.

(11) By letter dated January 24, 2001, Board Chairman M. David Halpem:

(a) informed respondent that by notice dated December 21,2000, she was advised of the hour and date when she was to appear before the Disciplinary Board for a private reprimand,

(b) informed respondent that section 87-53(b) of the Disciplinary Rules provides that “the neglect or refusal of the respondent-attorney to appear for the purposes of private reprimand without good cause shall constitute an independent act of professional misconduct and automatically result in the institution of formal proceedings”; and

(c) attached a copy of the notice and order of November 30, 2000.

(12) That letter was hand-delivered by Mr. Rancitelli at 8:55 a.m. on February 1,2001, by personally handing the notice to respondent at her Carpenter Lane address.

(13) Thereafter, respondent failed to contact either the secretary of the Disciplinary Board or the Office of Disciplinary Counsel to inform them:

(a) that she did not wish to receive the private reprimand,

(b) that she wished to institute formal proceedings before a hearing committee; or

(c) of the reason(s) why she was not able to or did not attend the private reprimand on January 17, 2001.

(14) Respondent has been on inactive status since December 2000, due to failure to comply with continuing legal education requirements.

(15) Respondent has a prior history of discipline consisting of two informal admonitions in 1997 and a private reprimand in 2001.

m. CONCLUSIONS OF LAW

(1) Respondent is conclusively deemed to have violated the following Rules of Professional Conduct as a result of her failure to demand the institution of formal proceedings on the underlying matter:

(a) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

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

(c) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest.

(2) As a result of her failure to appear before the Disciplinary Board for a private reprimand, respondent violated the following rules:

(a) Pa.R.D.E. 203(b)(2) — Willful failure to appear before the Disciplinary Board for a private reprimand shall be grounds for discipline.

(b) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline which charges that respondent failed to appear for a private reprimand in violation of Pa.R.D.E. 203(b)(2) and R.P.C. 8.4(d). The petition further charges that respondent is deemed to have violated R.P.C. 1.3, 1.4(b), and 1.16(d) as a result of her failure to request the institution of formal proceedings on the underlying case. Respondent is currently on inactive status in Pennsylvania, having been so transferred by order of the Supreme Court of Pennsylvania on December 30, 2000, for failure to meet her continuing legal education requirements.

At the disciplinary hearing on October 17, 2001, the parties stipulated to the rule violations charged in the petition. Respondent testified that she was experiencing personal problems which contributed to her professional difficulties. Shortly before the hearing, she saw Dr. Winston Collins who was referred to her by Lawyers Concerned for Lawyers. He suggested ongoing therapy and medication. At the hearing, respondent stated her interest in seeking professional help in order to overcome these problems and re-establish her legal practice. Petitioner recommended to the committee that a sanction of a private reprimand with conditions would be appropriate. As a result of respondent’s testimony and petitioner’s recommendation, the Hearing Committee left the record open for 60 days. The purpose was to allow respondent the opportunity to pursue treatment, to have the treating doctor submit a report or appear to testify, and to allow petitioner and respondent to formulate proposed conditions to attach to a private reprimand, if the committee was inclined to recommend such a sanction.

A second hearing was held on December 17, 2001. Respondent testified that she did not follow through on seeking treatment from Dr. Collins as she had no insurance coverage. She contacted Lawyers Concerned for Lawyers one business day prior to the hearing about the possibility of financial aid. Respondent was not in contact with petitioner regarding the preparation of the conditions, although petitioner called her three times to schedule a meeting. Respondent was given the opportunity by the committee to append to her brief a doctor’s report from Dr. Collins, but she failed to file a brief.

The record presents a picture of a troubled attorney who is unable to take the necessary steps to comply with the disciplinary system and re-establish her legal practice. Starting with respondent’s failure to appear for her private reprimand and continuing with her failure to take advantage of the opportunities given her by petitioner and the Hearing Committee to get help for herself, respondent has demonstrated that she is not able nor fit to practice law at this time. Respondent admits that she has personal problems and professes that she wants help to solve them but has done nothing so far to address the situation. Petitioner was very accommodating to respondent and made sincere efforts to get her professional help, but respondent disregarded these efforts.

The Hearing Committee recommended a suspension of one year and one day so that respondent would be required to establish she is fit to practice law. The board agrees with this assessment. While respondent’s underlying misconduct is not serious and may not have warranted a suspension, her actions clearly show that she is in no position at present time to handle the responsibilities associated with the practice of law.

The board recommends that respondent be suspended for a period of one year and one day, retroactive to November 18, 2002.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Mary McNeill Zell, be suspended from the practice of law for a period of one year and one day, retroactive to November 18, 2002.

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

Board Members Iole, Stewart and McLaughlin recused in this matter.

Board Member Sheerer did not participate in the January 15, 2003 adjudication.

ORDER

And now, June 4, 2003, upon consideration of the report and recommendations of the Disciplinary Board dated April 4, 2003, it is hereby ordered that Mary McNeill Zell be and she is suspended from the bar of this Commonwealth for a period of one year and one day, retroactive to November 18, 2002, and she 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.

      . By order of the Supreme Court of Pennsylvania dated November 18, 2002, respondent was placed on temporary suspension from the practice of law.


author: HALPERN, Member,

text:
    Office of Disciplinary Counsel v. Obod

      Disciplinary Board Docket, no. 37 D.B. 2001.
    November 21, 2002
   HALPERN, 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

By order dated March 19,2001, the Supreme Court of Pennsylvania temporarily suspended Ramon R. Obod, respondent, from the practice of law. This suspension was the result of a guilty plea in the United States District Court for the Eastern District of Pennsylvania to the crime of false statements pursuant to 18 U.S.C. §1001. Office of Disciplinary Counsel, petitioner, filed a petition for discipline against respondent on April 10, 2001. Respondent filed an answer to petition for discipline on June 4, 2001.

A disciplinary hearing was held on October 3, 2001, before Hearing Committee 1.20 comprised of Chair Brian E. Quinn, Esquire, and Members Leigh Michael Skipper, Esquire, and Kelley A. Grady, Esquire. James C. Schwartzman, Esquire, represented respondent. Raymond S. Wierciszewski, Esquire, represented petitioner. A joint stipulation of fact and law was admitted as part of the record. Respondent testified on his own behalf and presented six witnesses.

After briefing by the parties, the Hearing Committee filed a report on April 24, 2002, and recommended that respondent be suspended from the practice of law for a period of one year retroactive to March 19, 2001.

Respondent filed a brief on exceptions on May 9, 2002. Petitioner filed a brief opposing exceptions on May 20,2002.

This matter was adjudicated by the Disciplinary Board at the meeting of June 12, 2002.

n. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office was located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is vested pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of any 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 was bom in 1934 and was admitted to practice law in Pennsylvania in 1959. His last registered address for the practice of law was 2000 Market Street, 10th Floor, Philadelphia, PA 19103. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has not practiced law since July 2000, when, after resigning from his law partnership with Fox, Rothschild, and arranging for his clients to be transferred to other attorneys, he voluntarily ceased the practice of law.

(4) On July 7,2000, the United States Attorney for the Eastern District of Pennsylvania filed in the United States District Court for the Eastern District of Pennsylvania an information under criminal number 00-CR396-1, charging respondent with one count of false statement.

(5) On July 27,2000, respondent pleaded guilty to the information which charged one count of making a false statement pursuant to 18 U.S.C. §1001.

(6) On October 12, 2000, Judge J. Curtis Joyner sentenced respondent to probation for a period of 18 months, 500 hours of community service, a $5,000 fine, and a $100 special assessment. Respondent’s probation was terminated by order of the court on January 25, 2002.

(7) By order of March 19,2001, the Supreme Court of Pennsylvania temporarily suspended respondent and referred this matter to the Disciplinary Board.

(8) In 1996, by virtue of his representation of American Travelers Corporation, respondent learned that Conseco Inc. was negotiating to purchase Transport Holdings Inc. Respondent relied on that information to purchase 500 shares of Transport stock prior to the public announcement that Transport was to be acquired by Conseco, which had previously announced the proposed acquisition of Travelers. Respondent’s later sale of the Transport stock netted respondent a pre-tax profit of $9,400 and a post-tax profit of $5,000.

(9) When the Securities and Exchange Commission questioned respondent concerning his transactions, respondent gave a materially false statement by failing to disclose the fact that he had been provided information by a representative of Travelers who had personal knowledge of ongoing negotiations for the acquisition of Transport.

(10) At the time respondent spoke to the SEC investigator about his purchase of the Transport stock, he knew that his failure to disclose all of the details of the purchase was wrong and that he had made a terrible mistake.

(11) Respondent subsequently retained counsel who contacted the SEC in an effort to rectify the situation.

(12) After receiving a letter of inquiry from the SEC, respondent advised the managing partner of his law firm of the situation, who then informed the firm’s management committee.

(13) In May of 1999, the SEC and respondent entered into a consent decree to avoid the possibility of any civil action.

(14) In June of 2000, respondent entered into an agreement with Fox, Rothschild wherein he resigned from his partnership on June 30,2000. On July 14,2000, respondent sent letters to all of his clients informing them that he had resigned and was no longer engaged in the practice of law.

(15) Respondent has not engaged in the practice of law and has had no direct contact with clients since on or before July 31, 2000. He has performed limited non-legal consulting work for two clients and advised them of his status as a non-lawyer.

(16) Respondent has practiced law since 1959. He concentrated in the areas of business and corporate law.

(17) During his career of over 40 years, prior to his temporary suspension, respondent was a highly respected member of the legal and non-legal communities as evidenced by the numerous character letters submitted and testimony received. A total of 46 character letters were admitted into evidence.

(18) Over the years, respondent has participated in many civic and charitable activities. He has been involved as a member of the board of directors of the Jewish Exponent, the Philadelphia Geriatric Center, the Philadelphia Child Guidance Center and the International House of Philadelphia.

(19) Respondent has no prior record of discipline.

(20) Respondent displayed sincere remorse for his misconduct.

m. CONCLUSIONS OF LAW

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

(1) Pa.R.D.E. 203(b)(1) — Conviction of a crime, which under Enforcement Rule 214 may result in suspension, shall be grounds for discipline.

(2) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

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

IV. DISCUSSION

This matter is before the Disciplinary Board upon a petition for discipline charging respondent with violation of the Rules of Disciplinary Enforcement based on his conviction of one count of false statements.

When a disciplinary proceeding is commenced against an attorney based upon a criminal conviction, the board’s sole responsibility is to determine the appropriate measure of discipline relative to the seriousness of the crime. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982). All aggravating and mitigating circumstances must be taken into consideration in the board’s final analysis of discipline. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983).

The facts of this matter are clear that respondent used his knowledge of the potential purchase of Transport by Conseco to his own pecuniary advantage. He was familiar with the applicable SEC laws and regulations and had devoted the large part of his 42 years of law practice to a business law concentration. Respondent was aware at the time he bought the stock that it was going to be an “iffy occurrence,” and he knew that it “would not pass the smell test.” He knew that it did not look right. Unfortunately, when questioned by the SEC regarding the transaction, respondent failed to disclose that a representative in a position to know this information had informed him of Conseco’s acquisition of Transport. In so doing, respondent behaved in a manner contrary to the ethical roles of the legal profession.

After reviewing petitioner’s disciplinary recommendation of a suspension for not less than two years and respondent’s recommendation of a suspension for not more than one year, the Hearing Committee recommended a suspension for a period of one year retroactive to the temporary suspension imposed on March 19,2001. In addition to its analysis of prior disciplinary case law, the committee considered that respondent was an attorney for 42 years with an unblemished record of discipline. His conviction was the result of a single isolated statement, which was not premeditated. Respondent was not involved in an ongoing scheme or pattern of misconduct. Respondent disgorged all profits he earned on the transaction and paid a fine. He completed his court-imposed 500 hours of community service. Respondent took it upon himself to cease the practice of law and to notify his clients of such cessation. By all accounts, respondent enjoyed a reputation as an outstanding member of the legal and civic community. He suffered much shame as a result of his betrayal of those who held him in such high regard. Respondent demonstrated sincere remorse. These factors were highly persuasive to the Hearing Committee, resulting in its recommendation of a suspension of one year.

The board’s de novo review of the record leads to the conclusion that a suspension of one year retroactive to March 19, 2001, is appropriate. All of the factors considered by the committee as listed above are legitimate mitigating factors worthy of attention in the final analysis of discipline. Respondent’s impressive character testimony combined with his long and distinguished career convinces the board that he will not engage in misconduct in the future, nor should he be required to petition for reinstatement to demonstrate his fitness.

The board recommends a suspension for one year retroactive to March 19, 2001.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Ramon R. Obod, be suspended from the practice of law for a period of one year retroactive to March 19, 2001.

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

Board Members Schultz and McLaughlin did not participate in the June 12, 2002 adjudication.

ORDER

And now, January 31,2003, upon consideration of the report and recommendations of the Disciplinary Board dated November 21, 2002, it is hereby ordered that Ramon R. Obod be and he is suspended from the bar of this Commonwealth for a period of one year, retroactive to March 19,2001, 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. Justice Nigro dissents and would suspend respondent for a period of two years.

ORDER

And now, February 27, 2003, on certification by the Disciplinary Board that the respondent, Ramon R. Obod, who was suspended by order of this court dated January 31, 2003, for a period of one year retroactive to March 19,2001, has filed a verified statement showing compliance with all the terms and conditions of the order of suspension and Rule 217, Pa.R.D.E., and there being no other outstanding order of suspension or disbarment, Ramon R. Obod is hereby reinstated to active status, effective immediately.


author: WRIGHT JR., Member,

text:
    In the Matter of Sagett

      Disciplinary Board Docket no. 38 D.B. 1989.
    April 4, 2003
   WRIGHT JR., Member,

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

Petitioner, Samuel H. Sagett, filed a petition for reinstatement to the bar of Pennsylvania on June 15, 2001. Petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania dated May 26, 1989.

A reinstatement hearing was held on January 22,2002, before Hearing Committee 1.21 comprised of Chair Peter Samson, Esquire, and Members Caroline K. Reeves, Esquire, and Gerard G. Bernhardt, Esquire. Robert W. Costigan, Esquire, represented petitioner. Petitioner presented the testimony of two witnesses, as well as his own testimony.

The Hearing Committee filed a report on September 23, 2002, recommending that the petition for reinstatement be denied.

Petitioner filed a brief on exceptions on October 16, 2002. Office of Disciplinary Counsel filed a brief opposing exceptions on November 4, 2002.

This matter was adjudicated by the Disciplinary Board at the meeting of December 4, 2002.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Samuel H. Sagett. He was bom in 1942 and was admitted to the practice of law in Pennsylvania in 1966. His current address is 42 William Feather Drive, Voorhees, NJ 08043.

(2) Petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania dated May 26,1989.

(3) Petitioner misappropriated client funds to finance a scheme whereby he sent money to a foreign businessman. Initially petitioner used his own funds for this scheme, but then resorted to using client funds.

(4) Following his disbarment, petitioner pleaded guilty in the Superior Court of Burlington County, New Jersey, to charges of theft by failure to make required disposition of property received and theft by deception.

(5) The thefts that formed the basis of the criminal conviction were: between $500 and $75,000 from David R. Johnson Sr.; and $4,801 from Martin Dubrow.

(6) Petitioner was sentenced to a period of probation of five years, with the specific condition that petitioner make full restitution. Petitioner completed his probation in 1996.

(7) In addition to the criminal charges for the above clients, petitioner misappropriated funds from a number of clients over a period of time.

(8) Petitioner does not know how many clients were victimized, but estimates that it was more than five or six and may have been 10 or 12. (N.T. 49.)

(9) Petitioner estimates that the dollar value of the theft was over $100,000. (N.T. 49.)

(10) Those clients who made a claim against the Client Security Fund of New Jersey were repaid. Petitioner then reimbursed the Client Security Fund from the proceeds of the sale of his home and assignment of a pension fund.

(11) Petitioner does not know if all of his clients from whom he misappropriated funds were repaid.

(12) Petitioner presently sells cars at a Honda dealership in Marlton, New Jersey, where he has been employed since 1993.

(13) Petitioner has been employed as a paralegal at the Philadelphia law firm of Stack & Stack since January 2000. He works 20-25 hours per week.

(14) Petitioner participated in a school program to help students gain self-esteem.

(15) Michael Stack, Esquire, and Peter Marks, Esquire, testified on behalf of petitioner.

(16) These witnesses described petitioner as capable and dependable and possessing the legal skills required for practice in Pennsylvania.

(17) Petitioner has satisfied his CLE requirements.

(18) Petitioner expressed remorse for his misconduct and stated that he has a deeper appreciation for the practice of law.

(19) Petitioner believes he has matured and is able to take on the practice of law once again.

III. CONCLUSIONS OF LAW

(1) The misconduct for which petitioner was disbarred is not so egregious as to preclude reinstatement.

(2) Petitioner has failed to prove that he has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

IV. DISCUSSION

Petitioner’s request for reinstatement to the bar of this Commonwealth after disbarment is initially governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). The Keller opinion articulates a threshold question which must be met before the requirements of Pa.R.D.E. 218(c)(3)(i) are considered. This threshold inquiry is whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon the integrity and standing of the bar or the administration of justice nor be subversive of the public interest. Keller thus requires a determination that the original misconduct was not so offensive as to preclude reinstatement.

Petitioner was disbarred on consent after he misappropriated client funds as a result of his involvement in a scheme to send money to a foreign businessman. Petitioner was involved in this scheme for many years, but it was not until 1989 that he used client funds to finance the scheme. Petitioner explained that a friend of his had gotten involved in the same scheme and committed suicide soon after. Petitioner felt tremendous guilt and depression and thereafter began using client funds. His actions in two client matters resulted in conviction in New Jersey for theft by failure to make required disposition of property and theft by deception. Petitioner admits that there are more victims, but he is not sure how many. The board and the court have previously found that such misconduct was not so egregious as to prohibit reinstatement. See In the Matter of Perrone, 565 Pa. 563, 777 A.2d 413 (2001); In the Matter of Costigan, 541 Pa. 459, 664 A.2d 518 (1995); In re Anonymous No. 24 D.B. 84, 14 D.&C.4th 235 (1991). Accordingly, the board finds that petitioner’s misconduct, while extremely serious, is not so offensive so as to preclude reinstatement.

Having concluded that petitioner’s misconduct is not so egregious as to preclude the board from considering his petition, the board must now determine whether petitioner has met his burden of proving by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania, and that his current resumption of the practice of law would not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest. Pa.R.D.E. 218(c)(3)(i). In order to make this determination, the board must consider petitioner’s efforts at rehabilitation and the amount of time that has passed since he was disbarred.

Approximately 14 years have passed since petitioner was disbarred. While review of the record indicates that petitioner has taken some positive steps, the board is not persuaded that he has done all that he can to rehabilitate himself.

During his disbarment, petitioner sought therapy from Thomas G. Tudor Ph.D. to help resolve depression he was experiencing. This therapy was terminated by mutual agreement in February 1991. Petitioner has worked full-time selling cars, and more recently has become a paralegal for a Philadelphia law firm, where his work is valued for its accuracy and timeliness. Petitioner took his required CLE courses and has kept current with Pennsylvania law.

These positive steps are overshadowed by petitioner’s actions towards the victims of his misappropriations. Petitioner does not know exactly how many clients were victimized, but estimates it could be 10 or 12. Petitioner is unaware of how much money he misused, and estimates it could be more than $100,000.

All clients who made a claim with the Client Security Fund in New Jersey were repaid. Petitioner made reimbursement to the security fund through proceeds of the sale of his house and assignment of a pension fund. However, petitioner has no clear idea of the number of victims of his actions nor how much money he stole. He has made no efforts to determine this information. He stated that he merely turned over his files to the New Jersey disciplinary authorities and let them handle the situation. Based on petitioner’s testimony there certainly is a possibility that clients exist who have not been reimbursed. Petitioner is aware of this but has made no attempts to rectify this situation. It is incumbent upon petitioner to demonstrate efforts to find and repay each client. Petitioner’s misconduct was a severe breach of the trust between lawyer and client. Perhaps petitioner may never find all victims of his crime, but efforts towards that goal would demonstrate an understanding of the seriousness of his acts and concern for the victims.

For the reasons stated above, the board recommends that the petition for reinstatement be denied.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Samuel H. Sagett, be denied reinstatement 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.

Board Member Morris did not participate in the December 4, 2002 adjudication.

ORDER

And now, July 24, 2003, upon consideration of the report and recommendations of the Disciplinary Board dated April 4,2003, the petition for review and response thereto, the petition for reinstatement is denied. 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.


author: PRATT, P.J.,

text:
    Estate of Spangler v. Jameson Health System

      C.P. of Lawrence County,
    no. 11315 of 2001, C.A.

      David T. Donnelly, for plaintiff.

      James W. Kraus, for defendant.
    December 17, 2003
   PRATT, P.J.,

Plaintiffs have presented a motion to compel responses to second requests for production of documents, and requests the court to compel the defendant, Jameson Health System, to disclose certain statements made by nurses who witnessed and assisted in treating the decedent in the days prior to his death. Defendant Jameson Health System asserts that the statements are protected by the Peer Review Protection Act, 63 PS. §425.1 et seq. and, therefore, are not subject to discovery. In response, plaintiffs argue that the statements fall within the “original source” exception provided by the PRPA, 63 P.S. §425.4, and are discoverable.

Decedent Wilbert E. Spangler Jr. was a patient at Jameson Memorial Hospital for several days in late December 1999, before dying from retroperitoneal bleeding. He had received Heparin, which can cause internal bleeding as a side effect, while being treated at Jameson Memorial Hospital before he passed away. Plaintiffs contend that the Heparin was not properly administered and that the defendants did not properly monitor the decedent for adverse side effects.

Defendant Jameson’s attorney informed plaintiffs’ attorney that three of the treating nurses had prepared written statements. These statements are the subject of plaintiffs’ instant motion. However, none of the parties provided the court with descriptions of the statements, the identity of the nurses who prepared them, or the circumstances under which the statements were prepared.

DISCUSSION

Section 425.4 of the PRPA provides in pertinent part:

“Confidentiality of review organization’s records

“The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, that information, documents or records otherwise available from original sources are not to be constmed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or is a member of such committee be prevented from testifying as to matters within his knowledge, but said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.” 63 P.S. §425.4.

The purpose of that provision of the PRPA is to promote health care industry self-regulation by protecting peer review proceedings from public scrutiny. Sanderson v. Frank S. Bryan M.D. Ltd., 361 Pa. Super. 491, 494, 522 A.2d 1138, 1139 (1987). The strong public policy rationale for that protection is to encourage “free and frank discussion by review organizations” and avoid a chilling effect by preventing the imposition of civil liability based upon the testimony and documents presented to the peer review organization. Id. at 496, 522 A.2d at 1140. However, the Pennsylvania Legislature did not want to immunize relevant evidence simply because it was presented to a peer review organization; thus, section 425.4 of the PRPA has an exception for “information, documents or records otherwise available from other sources.” 63 P.S. §425.4. The second exception provides that individuals who testified to or were members of a peer review committee can be required to testify in a civil action about matters of which they have personal knowledge, but not about the proceedings or findings of the committee. Id.

The Superior Court announced criteria for demanding “original” documents under the PRPA in Young v. Western Pennsylvania Hospital:

“[D]emands for information, documents or materials covered by the Peer Review Protection Act must be clearly defined and narrowly tailored. The medical provider must be able to determine the identity of the documents demanded from the face of the discovery demand. The Peer Review Protection Act does not support or allow for fishing expeditions by parties seeking ‘original’ documents used by a peer review committee without first knowing what those documents are and so naming them in the discovery demand . . . .” Young v. Western Pennsylvania Hospital, 722 A.2d 153, 156-57 (Pa. Super. 1998).

The moving party must identify the requested statements or documents with sufficient specificity, so that the non-moving party knows what is requested. Id. Here, plaintiffs have identified the requested statements to the best of their ability, since they learned of the statements from defendant’s counsel. However, defendant has merely provided plaintiffs and this court with the legal conclusion that the statements are protected by the PRPA, rather than explaining the specific circumstances and basis for claiming that the statements are protected under the PRPA.

Even in the shadow of the PRPA, however, the nurses can be compelled to testify about their personal knowledge of the case. See Sanderson, supra at 501, 522 A.2d at 1143 (“Persons with firsthand knowledge of [the] incident could be compelled to testify.” (internal citation omitted)). Here, the nurses had attended to the decedent prior to his death and, therefore, are “[pjersons with firsthand knowledge” id., or are “original sources.” If the nurses in this case, as original sources, can be compelled to testify about their personal knowledge of the case, then the same information requested by the plaintiffs should not be immune from discovery simply because it is in written form. However, the PRPA protects documents provided exclusively for and presented to a peer review committee and makes them immune from discovery. Since defendant Jameson has not explained how or why the statements were given and the purpose therefor but simply asserted that the PRPA protects them from discovery, the court needs to first undertake an in camera review of the statements before deciding plaintiffs’ motion. See Young, supra at 157 (“If a party is unsure [whether a document or statement is peer review protected], then an in camera review of documents might be considered.”).

The court shall, by separate order, direct defendant Jameson Health System to submit the nurses’ statements along with an explanation of the circumstances under which the statements were provided and the reasons therefor for the court’s review and inspection in camera.

ORDER

In accordance with the attached opinion, defendant Jameson Health System shall submit to the court, within 20 days of the filing of this order, the three written statements by the nurses that plaintiffs have requested, as well as an explanation of the circumstances under which the statements were provided and the reasons therefor. The court shall conduct an in camera review of the statements, and then decide whether to grant or deny plaintiffs’ motion to compel responses to second requests for production of documents.

The prothonotary shall properly serve notice of this order and opinion.


author: CARRAFIELLO, J.,

text:
    Dancy v. Civil Service Commission of City of Philadelphia

      Michael Gerald Dryden, for appellee.

      Martin G. Malloy and Joseph Patrick Turchi, for appellant.
    January 14, 2004
   CARRAFIELLO, J.,

Appellant, the City of Philadelphia, appeals an order of the Philadelphia Court of Common Pleas dated December 8,2003, which reversed a decision of the Civil Service Commission of the City of Philadelphia.

FACTUAL AND PROCEDURAL HISTORY:

The basic facts are not in dispute. Appellee, Mildred Dancy, worked as a prison guard in the Philadelphia prison system. On May 20,2000, she was responding to an “assist officer” call when a door slammed on her finger, essentially amputating the top third of her right index finger (Officer Dancy is right-handed). She was taken to Franford Hospital’s emergency room, and the stump was cleaned and sutured by Dr. Askin, a hand specialist.

Appellee continued to see Dr. Askin and was referred to a psychologist that worked for the city, Dr. Richard M. Ganley. Appellee had been quite disturbed at seeing the bone protruding from her finger and part of her finger lying on the floor. Dr. Ganley initially diagnosed appellee as suffering post-traumatic stress syndrome. He saw her 15 times over the next six months, and cleared her in November for limited duty with some restrictions. The first restriction was that she not work directly with inmates:

“It’s a standard limitation. I don’t recall any exceptions. There may have been one or two. When I’m working with correctional officers, when they go back — it is a fairly stressful job working with inmates. And I recommend that they go back, we see how they’re doing in a less stressful situation. They often work in the mail-room, they may work guard duty outside of an area, an area where the public is, rather than where the inmates are. And it — it gives us time to address any issues that might come up regarding return to work.” (N.T. Ganley deposition p. 43.)

The second restriction asked that the appellee not be assigned to duty with an officer against whom she had filed sexual harassment charges. The third restriction was that the position should be sensitive to the pain from her finger stump.

At his deposition, Dr. Ganley was asked about his diagnosis. He stated that as a result of her injury, he had diagnosed appellee as suffering from post-traumatic stress, but he had changed his initial diagnosis to an adjustment disorder with anxiety. (Ganley deposition pp. 50-51.) The new diagnosis did not appear anywhere in the doctor’s notes, and was given for the first time at his deposition on behalf of the city. (Ganley deposition p. 68.) The doctor never explained what an adjustment disorder with anxiety was.

At the time of this accident, appellee was treating with Dr. Kao of the city Compensation Clinic for carpal tunnel syndrome. Dr. Kao examined her twice after the amputation to determine how the stump was healing, and eventually cleared her medically. However, Dr. Kao limited the duty to a position that involved use of the left hand only, and noted that Dr. Ganley should be consulted to provide any psychological restrictions. (Kao deposition, p. 21.)

In November, appellee was offered a light duty position. Even though it is routine to offer a position in the mailroom or one dealing with the public, appellee was offered a position in Center Control, which is inside the prison proper. It is a glass booth that operates the doors through which prisoners routinely pass. Although separated by glass, it is located in an area readily accessible to the prison population. The prison also assigned her to a shift with the officer she had charged with sexual harassment. The offer violated two of Dr. Ganley’s restrictions. The shift was eventually changed, but the position was not. Appellee refused to accept the placement.

Appellee took an appeal to the Civil Service Commission of the City of Philadelphia under Civil Service Regulation 32.11 (duty status) and 32.12 (service-connected disability). Appellee testified before the commission that she feared inmate contact as an altercation might arise and her disfigurement might affect the outcome. (N.T. 1-16-02, p. 71.) She had been told that a position outside of the prison proper would involve carrying a gun, and she could not fire one because of the amputation. She stated she would be willing to accept a position that did not involve inmate contact or carrying a gun. (N.T. pp. 73-74.) She noted that the finger was still painful and that the thought of working in Center Control traumatized her and caused her great anxiety.

Appellee started treating with a board-certified psychiatrist, Clancy D. McKenzie, after ending her sessions with Dr. Ganley. Dr. McKenzie was deposed in this matter. He testified that he had practiced for 38 years, and had written a textbook on post-traumatic stress. He had first seen appellee in November of 2001 and had seen her approximately five times when deposed (April 4, 2002). He testified that appellee suffered from post-traumatic stress disorder and major depressive disorder. He found appellee overwhelmed at the thought of working inside the prison, and concluded appellee was unable to work there due to the emotional impact of the work injury. Appellee also introduced the evidence of Dr. Brent Weinerman, who had examined appellee at the request of her attorney. He opined that the pain and the limited motion of her right hand would make dealing with unruly inmates impossible, and she could not return to work in a prison environment.

The city introduced the testimony of Doctors Kao and Gantry and both sides rested. On November 14, 2002, the commission issued an opinion which denied appellee’s appeal. Appellee then petitioned for review before a court of common pleas. No further testimony was taken. After a thorough review of the notes of testimony and the briefs of counsel, the court issued an order on December 8, 2003, granting appellee’s petition and reversing the decision of the civil service commission. The city filed this timely appeal.

LEGAL DISCUSSION:

Appellant was asked to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. This is perhaps the fourth appeal taken by the city wherein this directive has not been followed. Counsel filed a statement that consists of 12 pages with 47 numbered paragraphs, only six of which allege error. Much as a statement that is too vague is the functional equivalent of no concise statement at all, Commonwealth of Pennsylvania v. Dowling, 778 A.2d 683 (Pa. Super. 2001); Commonwealth v. Seibert, 799 A.2d 54 (Pa. Super. 2002), a concise statement which does not readily identify the issues being raised on appeal should be deemed a waiver of those issues. Accordingly, this appeal should be dismissed.

Should the court not exercise its discretion and dismiss this appeal, the court’s order should be affirmed on its merits. The court’s review of a decision of the civil service commission is limited to examining whether the findings of fact are supported by substantial evidence, the decision is soundly based in the law, and whether constitutional rights have been upheld. See Bruggeman v. State Civil Service Commission, 769 A.2d 549 (Pa. Commw. 2001); Bazargani v. State Civil Service Commission, 711 A.2d 529 (Pa. Commw. 1998).

The Commonwealth Court has held that section 32 appeals are similar to those brought under the Workers’ Compensation Act. Principles enunciated in case law interpreting that Act will apply to section 32 appeals when similar issues are involved. See Sweed v. City of Philadelphia, 687 A.2d 59 (Pa. Commw. 1996); Sammons v. Civil Service Commission of the City of Philadelphia, 673 A.2d 998 (Pa. Commw. 1996). When an officer is claiming a psychiatric injury, she must show by objective evidence that a psychiatric injury occurred and was not a mere subjective reaction to normal working conditions. Martin v. Ketchum Inc., 523 Pa. 509, 568 A.2d 159 (1990).

Under the Workers’ Compensation Act, however, not all psychic injury claims call for the same standard of proof. To establish a claim involving mental/mental injury, the evidence must show that an extraordinary occurrence took place at work which caused the injury, or that abnormal conditions at work over a substantial period of time caused the injury. Monessen Inc. v. W C.A.B. (Marsh), 158 Pa. Commw. 502, 631 A.2d 1119 (1993). If a person is claiming a physical/mental injury, they must prove that a triggering physical injury compensable under the Act caused their psychological disability, and that the injuries arose in the course of their employment and were related thereto. Bell v. W.C.A.B. (Allegheny County Housing Authority), 152 Pa. Commw. 636, 620 A.2d 589 (1993).

Appellee claimed a physical/mental injury. The commission applied the standard of review for a mental/mental claim, thus committing an error of law:

“Appellant’s [sic] job as a correctional officer involved repeated contacts with dangerous persons. In such an environment, anything could happen and usually does. Even this ‘freak’ type of an accident, although an extraordinary event, is not outside the realm of possibility. In fact, most jails today have cells which are operated mechanically as well as manually, placing operators at risk of injury in opening and closing them. This work environment/situation is not abnormal for a correctional officer. Appellant has not met her burden of proof in this case for all the reasons set forth above.” (Commission opinion p. 4.)

If one uses the correct standard of review, the evidence clearly establishes that appellee met her burden of showing that she sustained a compensable injury in the course of her employment, and that as a result of that injury, she suffered a psychiatric injury relating directly to the physical injury.

All agree that the end of appellee’s finger was cut off by a door in the prison when she responded to a call to assist a fellow officer. As a result of seeing her finger tip lying on the floor and a bone protruding from her finger, appellee appeared traumatized and was referred by the surgeon provided by the city, to a psychologist provided by the city. She was treated by Dr. Gantry for her psychiatric injury (post-traumatic stress syndrome until his deposition) for six months and only cleared to return to limited duty with certain restrictions. Aside from the evidence introduced by appellee, the testimony of the treating physicians provided by the city established appellee’s claim. It is the city’s position that appellee’s failure to take the light duty position that was offered to her precludes her from claiming a disability, as a disability requires a loss of earning power. However, the position offered to appellee did not fit the criteria established by the city’s own psychological expert. Her rejection of that position did not adversely affect her claim.

The court did not reach the issue of whether the commission’s opinion was based on substantial evidence, as it concluded the commission had committed an error of law that affected the outcome of the case in applying the wrong standard of review. As such, the court found appellee had met her burden of proof under the proper standard of review, and reversed the decision of the civil service commission. For all the reasons stated above, the order of December 8, 2003 should be affirmed.

      . At one point in the numerous listings of this matter, counsel for appellee was trying to negotiate a light duty position for her that would not involve any contact with the prison population. That obviously did not come to fruition.


author: SHEPPARD JR., J.,

text:
    High Concrete Structures Inc. v. National Union Fire Insurance Company of Pittsburgh, PA

      Charles J. Bloom, for plaintiff.

      Eric R. Brown, for defendant.
    February 3, 2004
   SHEPPARD JR., J.,

Before the court are the preliminary objections of defendant, National Union Fire Insurance Company of Pittsburgh, PA (NUFIC), to the complaint of plaintiff High Concrete Structures Inc. (HCS). NUFIC was HCS’ insurer under a certain general commercial liability insurance policy: HCS brought this declaratory judgment action because the policy required NUFIC to defend HCS in any suit seeking damages from HCS for “malicious prosecution.”

HCS is the plaintiff in certain patent litigation presently pending in the United States Federal Court for the Eastern District of Pennsylvania (the underlying action), in which HCS has asserted claims for patent infringement against its competitors, New Enterprise Stone & Lime Co. Inc. and Robbins Motor Transportation Inc. (collectively NESL). NESL has counterclaimed alleging, inter alia, that HCS’ patent is invalid because HCS made numerous misrepresentations to the Patent and Trademark Office (PTO) in order to obtain the patent.

In this action, HCS seeks to have NUFIC pay its defense costs with respect to this counterclaim, alleging that a patent invalidity claim is akin to an abuse of process claim and an abuse of process claim is included within the policy’s coverage for “malicious prosecution” claims.

I. THE INSURER’S DUTY TO DEFEND

In order “to decide whether a duty to defend exists [, a court] must interpret the insurance policy to determine the scope of the coverage [and] must analyze the complaint filed against the insured to determine whether the claims asserted potentially falls [sic] within that coverage.” Biborosch v. Transamerica Insurance Co., 412 Pa. Super. 505, 509-10, 603 A.2d 1050, 1052 (1992). See also, Mutual Benefit Insurance Co. v. Haver, 555 Pa. 534, 538-39, 725 A.2d 743, 746 (1999). Applying this analysis, this court finds that NESL’s amended answer in the underlying action does not contain claims that potentially fall within the scope of the policy’s coverage. Thus, NUFIC does not have a duty to defend HCS in the underlying litigation.

A. The Court Will Not Reach the Issue Whether an Abuse of Process Claim Is Included Within the Term “Malicious Prosecution”

HCS’ argument, that the term “malicious prosecution” as used in the policy encompasses claims for “abuse of process,” is supported by a scholarly opinion of the Delaware Superior Court, in which that court applied Pennsylvania law to interpret an insurance policy similar to the one at issue in this case. See Toll Brothers Inc. v. General Accident Ins. Co., 1999 WL 744426 (Del. Super. August 4, 1999), aff’d without opinion, 765 A.2d 953 (Del. 2000). But, recently, courts in other jurisdictions have refused to read the term “malicious prosecution” so broadly in cases involving similarly worded insurance policies. See Global Naps Inc. v. Federal Ins. Co., 336 F.3d 59 (1st Cir. 2003) (applying New York law); Pennsylvania Pulp & Paper Co. v. Nationwide Mut. Ins. Co., 100 S.W.3d 566 (Tex. App. 2003) (applying Texas law); William J. Templeman Co. v. Liberty Mut. Ins. Co., 316 Ill. App. 3d 379, 735 N.E.2d 669 (2000) (applying Illinois law). Furthermore, Pennsylvania courts have always maintained — in a tort law context — that there is a clear distinction between the tort of abuse of process and the tort of malicious prosecution, the latter of which is now codified in the “Dragonetti Act.” See e.g., McGee v. Feege, 517 Pa. 247, 253, 535 A.2d 1020, 1023 (1987); Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002); Al Hamilton Contracting Co. v. Cowder, 434 Pa. Super. 491, 498-99, 644 A.2d 188, 191-92 (1994). See also, 42 Pa.C.S. §8351.

In order to resolve this case, this court need not decide how broadly to construe the term “malicious prosecution,” as used in commercial general liability policies. Instead, the court will focus on the issue whether the patent invalidity claim asserted by NESL may be viewed as an abuse of process claim.

B. A Patent Invalidity Claim Is Not Akin To an Abuse of Process Claim

A patent holder that had an improper motive in bringing a civil action for patent infringement may be charged with the state law tort of abuse of process by way of a counterclaim in the infringement action. See Trueposition Inc. v. Allen Telecom Inc., 2003 WL 151227 (D. Del. January 21, 2003); Bayer AG v. Sony Electronics Inc., 229 F. Supp.2d 332 (D. Del. 2002), aff’d without opinion, 2003 WL 22961198 (Fed. Cir. December 5, 2003). However, a patent holder that obtained a patent from the PTO by improper means may not be charged with abuse of process.

“[T]he federal administrative process of examining and issuing patents, including proceedings before the PTO’s boards, is not subject to collateral review in terms of the common law tort of abuse of process.... An additional state action would be an inappropriate collateral intrusion on the regulatory procedures of the PTO ... and is contrary to Congress’ pre-emptive regulation in the area of patent law.” Abbot Laboratories v. Brennan, 952 F.2d 1346, 1357 (Fed. Cir. 1992).

In the underlying action, NESL’s claim for patent invalidity is based on HCS’ allegedly improper conduct before the PTO, so that claim cannot, under the doctrine of federal pre-emption, be recast as an abuse of process claim. Therefore, even if the term “malicious prosecution” in the policy encompasses a claim for abuse of process, NESL’s patent invalidity counterclaim may not be deemed an abuse of process claim. Thus, NUFIC has no duty to defend HCS with respect to NESL’s counterclaims.

CONCLUSION

For the foregoing reasons, defendant’s preliminary objections to plaintiff’s complaint are sustained and the complaint should be dismissed. A contemporaneous order consistent with this opinion will be entered of record.

ORDER

And now, February 3,2004, upon consideration of the preliminary objections of defendant, plaintiff’s response in opposition, the respective memoranda, all other matters of record, and in accord with the opinion being filed contemporaneously, it is ordered that the preliminary objections are sustained and the complaint is dismissed.

      . HCS holds a patent for a “loading fixture” that enables one to load wide cargo onto a flatbed in a tilted position, thereby reducing the “effective width” of the cargo and causing it not to be labeled and treated as a “wide load” (the patent).

      . Plaintiff does not and cannot claim that the allegations of the patent invalidity claim are equivalent to a malicious prosecution claim because the underlying litigation is still pending. One of the requirements for bringing a malicious prosecution claim is that the counterclaim in the underlying litigation has been resolved in favor of HCS. See 42 Pa.C.S. §8351(a)(2).

      . In Neumann v. Vidal, 710 F.2d 856 (D.C. Cir. 1983), which is cited by HCS, the court permitted an abuse of process claim to go to trial even though it was premised upon a claim filed in federal court that was later converted to a (unsuccessful) patent protest before the PTO. However, the Neumann court did not address the federal pre-emption issue.

      . HCS argues that the gravamen of NESL’s counterclaim is that HCS brought the underlying litigation with improper motive, but NESL’s allegations, as this court reads them, do not support such an argument and are instead focused on HCS’ activities before the PTO.


author: LACHMAN,

text:
    Noel v. Doolin

      Shanin Specter and H. Leon Aussprung III, for plaintiffs.

      Carolyn R. Sleeper, for defendants The Cooper Health System, Cooper Hospital and Ramprasad.

      Lawrence P. Engrissei, for defendant Loving Care Agency, Inc.

      Anna Marie Schmidt Bryan and Kim Cocker, for defendants The Children’s Hospital of Philadelphia, Children’s Surgical Associates, Ltd. and Doolin M.D.

      John F.X. Monaghan Jr., for defendants Fernandez, M.D., Our Lady of Lourdes Medical Center and Osborn Family Health Care Center.

      Matthew C. Wilson, for defendant Newborn Nurses, Inc.

      John C. Farrell, for defendant Alpine Medical L.L.C.
    January 9, 2004
   LACHMAN,

BACKGROUND

On December 13, 2002, plaintiffs filed this medical malpractice action arising out of the medical treatment provided to minor-plaintiff Kolby Ronald Noel. Defendants Loving Care Agency, The Cooper Health System, Cooper Hospital/University Medical Center a/k/a The Children’s Regional Center, and Vatsala Ramprasad M.D. filed preliminary objections asserting, among other issues, that venue is improper in Philadelphia County or in any other county in Pennsylvania. Although plaintiffs aver that defendants regularly conduct business in Philadelphia County, the alleged negligent medical treatment occurred exclusively within the State of New Jersey. By orders dated September 3,2003, the trial court sustained defendants’ preliminary objections as to venue and dismissed plaintiffs’ amended complaint against them. Plaintiffs filed a timely appeal. For the reasons set forth below, the trial court’s decision should be affirmed.

FACTS

Plaintiffs were residents of New Jersey. Kolby was bom on August 9,2001. He was “hospitalized” at defendant institutions from birth until he was discharged to home on December 24, 2001. During that time, he underwent treatment including a tracheotomy for subglottic stenosis. On July 1, 2002, his “trach” tube became plugged and Kolby went into respiratory distress. As a result, he sustained brain damage. Plaintiffs claim that defendants failed to provide adequate training for maintenance of the tracheotomy, and the performance of CPR for a child with a tracheotomy.

DISCUSSION

On January 27, 2003, after the enactment of the amended 42 Pa.C.S. §5101.1, but prior to its effective date, the Pennsylvania Supreme Court amended Pa. R.C.P. 1006 regarding venue to provide the following: “(a.l) Except as otherwise provided by subsection (c), a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose.” Pursuant to the Pennsylvania Supreme Court’s amendatory order of March 5,2003, the amended Pa.R.C.P. 1006(a.l) applies to all medical professional liability actions filed on or after January 1, 2002.

This medical malpractice action was commenced by writ of summons on December 13, 2002, subsequent to the effective date of Pa.R.C.P. 1006(a.l). The Pennsylvania rale regarding venue in a medical professional liability action, as set forth by the Pennsylvania Supreme Court, dictates that venue is only proper in the county in which the cause of action arose. It is undisputed that this action arises out of the medical treatment provided to the minor-plaintiff exclusively within the State of New Jersey. Thus, venue is improper in Philadelphia County, or any other county in Pennsylvania, and the action must be dismissed. See also, Connor v. Crozer Keystone Health System, 2003 WL 22128902 (Super. Ct.).

Plaintiffs argue that (1) all of the defendants regularly conduct business in Philadelphia County, and (2) therefore, since there is general jurisdiction in Pennsylvania, venue is proper in Philadelphia County because jurisdiction cannot exist without venue. According to plaintiffs’ theory, a New Jersey patient who obtains medical treatment in New Jersey can bring a medical malpractice action against his health care provider in any county in Pennsylvania in which the defendant conducts business or the defendant can be served. However, a patient who seeks medical treatment in Pennsylvania is limited to filing suit in Pennsylvania to the county where treatment occurred.

Additionally, pursuant to plaintiffs’ theory, physicians who practice in both states cannot limit their exposure by doing certain procedures only in New Jersey. The only way in which they could avoid exposure to suit in Pennsylvania would be to leave Pennsylvania entirely, as residents and practicing physicians.

Plaintiffs’ analysis would lead to the conclusion that the Pennsylvania Supreme Court intended to extend out-of-state patients multiple choices of fora, and to limit Pennsylvania patients to the one county in which the malpractice arose. This court finds it unlikely that the Pennsylvania Supreme Court (or the Pennsylvania Legislature) intended to extend greater rights to out-of-state consumers of health care services than are extended to those seeking health care services within this Commonwealth.

For the reasons set forth above, the trial court’s orders sustaining defendants’ preliminary objections should be affirmed.

      . Defendant Loving Care Agency Inc. also challenges jurisdiction within Pennsylvania.

      . 42 Pa.C.S. §5101.1 provides:
      “(a) Declaration of policy. — In accordance with section 514(a) of the Act of March 20, 2002 (P.L. 154, No. 13) known as the Medical Care Availability and Reduction of Error (MCARE) Act, and as a matter of public policy, the General Assembly further declares the need to change the venue requirements for medical professional liability actions.
      “(b) General rule. — Notwithstanding any other provision to the contrary, a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in the county in which the cause of action arose.
      “(c) Definitions.— . ..
      “ ‘Health care provider.’ A primary health care center, a personal care home licensed by the Department of Public Welfare ... , or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide health care or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center, and an officer, employee or agent of any of them acting in the course and scope of employment....
      “ ‘Medical professional liability action.’ Any proceeding in which a medical professional liability claim is asserted, including an action in a court of law or an arbitration proceeding.
      “ ‘Medical professional liability claim.’ Any claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided.” (October 17, 2004, effective in 60 days, amended December 9, 2002, effective in 60 days).

      . The note following the amended rule refers to 42 Pa.C.S. §5101.1, (Venue in medical professional liability actions), for definitions of “health care provider,” “medical professional liability action,” and “medical professional liability claim.”

      . 42 Pa.C.S. §5101.1(b) provides that “a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in the county in which the cause of action arose.” Although plaintiffs commenced this action before the effective date of the amended statute, the court notes that the statute is an indicator of the legislature’s intent.

      . The court did not consider forum non conveniens pursuant to 42 Pa.C.S. §5322, since the parties did not address this issue.