author:
SUH, Member,
     O’CONNOR, Member,

text:
    Office of Disciplinary Counsel v. Cutruzzula

      Disciplinary Board Docket no. 147 D.B. 2004.
    March 28, 2006
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SUH, 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 March 2, 2005, Office of Disciplinary Counsel filed a petition for discipline against Francis S. Cutruzzula, respondent. The petition charged respondent with professional misconduct arising out of his failure to appear for a private reprimand before the Disciplinary Board. Respondent did not file an answer to petition for discipline.

A disciplinary hearing was held on June 7,2005, before a District III Hearing Committee comprised of Chair Randall G. Gale, Esquire, and Members Richard P. Mislitslcy, Esquire, and Daniel J. Barrett, Esquire. Respondent did not appear.

Following the submission of briefs by the parties, the Hearing Committee filed a report on September 16,2005, finding that respondent engaged in professional misconduct and recommending that he be suspended from the practice of law for 15 months.

Respondent filed a brief on exceptions on October 7,' 2005.

Petitioner filed a brief opposing exceptions and a motion to reopen the record on October 24, 2005.

This matter was adjudicated by the Disciplinary Board at the meeting on November 9, 2005.

Respondent filed a motion to reopen disciplinary case to supplement the record on January 17, 2006.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, 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 the aforesaid rules.

(2) Respondent, Francis S. Cutruzzula, is not licensed to practice law in the Commonwealth of Pennsylvania, but was admitted pro hac vice to represent Noel Matos Montalvo in his criminal homicide trial in the Court of Common Pleas of York County, in which Mr. Montalvo was convicted. Respondent maintains his office at 591 Summit Avenue, Suite 700, Jersey City, NJ 07306. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania pursuant to Pa.R.D.E. 201(a)(2), 201(a)(6) and 203.

(3) In accordance with Rules 208(a)(2), (3) and (5), Pa.R.D.E., by order dated October 7,2004, the Disciplinary Board determined that respondent should receive a private reprimand with conditions as a result of misconduct involving Noel Matos Montalvo.

(4) The condition attached to the private reprimand was that within 30 days from the date of the order, respondent shall submit to the executive director and secretary of the board and to Disciplinary Counsel proof that he refunded $ 15,000 to the Montalvo family that he received from them to represent Noel Matos Montalvo in his death penalty case.

(5) By letter dated October 7, 2004, which was sent to respondent by both first class and certified mail, respondent was informed of the determination of the Disciplinary Board that he was to receive a private reprimand with conditions and was foiwarded a copy of the Disciplinary Board’s order dated October 7, 2004.

(6) The letter dated October 7,2004, further informed respondent that, pursuant to Rule 208(a)(6), Pa.R.D.E., respondent had 20 days to demand as of right that a formal proceeding be instituted against him before a hearing committee and that in the event of such demand, respondent need not appear for the administration of the private reprimand.

(7) By letter dated October 27, 2004, respondent informed Elaine M. Bixler, secretary of the Disciplinary Board, that he accepted the “recommendation made by the Disciplinary Board and will attend the private reprimand whenever and wherever it is scheduled.”

(8) By notice dated December 16, 2004, sent to him by first class and certified mail, respondent was informed that his private reprimand was scheduled for January 18, 2005, at 10:30 a.m.

(9) The certified mail copy of the notice to appear dated December 16, 2004 was signed by someone in respondent’s office, and the copy sent by first class mail was not returned.

(10) On January 5, 2005, Disciplinary Counsel Patti Bednarik called respondent to advise him that he had a duty to pay the Montalvos’ $15,000 and provide proof to the Disciplinary Board by January 8, 2005.

(11) Respondent discussed the matter of repayment with Ms. Bednarik and asked if he could make a partial payment.

(12) Disciplinary Counsel Bednarik suggested that respondent call the secretary of the board to determine whether the board would accept a payment schedule.

(13) Respondent did not call or communicate with the secretary of the board about a payment plan.

(14) On January 18,2005, the date set for the administration of the private reprimand in Philadelphia, respondent failed to appear.

(15) By letter dated January 25, 2005, sent by first class and certified mail, respondent was directed by Louis N. Teti, Chair of the Disciplinary Board, to provide, within 10 days of the date of that letter, “good cause” for his failure to appear for the private reprimand and to comply with the conditions attached thereto.

(16) Respondent did not reply to the January 25,2005 letter of the chair.

(17) Respondent failed to appear for a pre-hearing conference scheduled for April 25, 2005.

(18) Respondent was served with notice of the prehearing conference by certified and regular mail.

(19) Respondent received notice of the disciplinary hearing scheduled for June 7, 2005.

(20) Respondent did not appear for the hearing.

(21) At no time before or after the hearing did respondent contact the Hearing Committee or the Office of Disciplinary Counsel to explain his failure to appear.

(22) Respondent sent a check in the amount of $5,000 dated October 1, 2005 to Mrs. Eulalie Montalvo, the mother of his client. The check was subsequently negotiated by Mrs. Montalvo.

(23) Respondent sent a check in the amount of $ 10,000 on January 6, 2006, to Mrs. Montalvo.

III. CONCLUSIONS OF LAW

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

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

(2) Pa.R.D.E. 204(b) — Failure to comply with the conditions of the private reprimand is grounds for discipline.

In addition to the foregoing misconduct resulting from respondent’s failure to appear for the reprimand and failure to comply with the conditions attached thereto, respondent is conclusively deemed to have violated the following Rules of Professional Conduct:

(3) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client. Respondent was paid $20,000 to represent Noel Montalvo in an appeal of a death penalty and failed to act with reasonable diligence and promptness. He did no legal work on the matter but retained local counsel for $5,000 to handle the appeal.

(4) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for infonnation. Mr. Montalvo wrote to respondent on 15 occasions, and respondent failed to respond to these letters.

(5) 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. Respondent failed to advise Mr. Montalvo that he had retained local counsel to handle the appeal. Mr. Montalvo asked respondent several times in his letters whether post-verdict motions were filed. Respondent did not advise his client on this issue.

(6) R.P.C. 1.5(a) — A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. Respondent charged $20,000 to handle the appeal and did virtually nothing to earn that fee. Instead, respondent simply paid local counsel $5,000 to handle the appeal without his client’s knowledge or consent.

(7) R.P.C. 1.5(e)(1) — A lawyer shall not divide a fee for legal services with another lawyer who is not in the same firm unless the client is advised of and does not object to the participation of all the lawyers involved. Respondent divided a fee with local counsel, who was not in his firm, and did not advise his client.

(8) R.RC. 1.5(e)(2) — A lawyer shall not divide a fee for legal services with another lawyer who is not in the same firm unless the total fee of the lawyers is not illegal or clearly excessive for all legal services they rendered the client.

(9) R.RC. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. Mr. Montalvo requested a refund of unearned fees in writing on several occasions, but respondent failed to provide the refund of any unearned fees.

(10) R.RC. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

(11) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Respondent engaged in fraud and deceit by accepting a $20,000 retainer to represent Mr. Montalvo and not advising Mr. Montalvo that he was simply going to retain another attorney to do the work for him for a fee of $5,000.

IV. DISCUSSION

This matter is before the board for consideration of a petition for discipline filed against respondent charging him with professional misconduct in light of his failure to appear for a private reprimand and fulfill a condition attached thereto. This matter had its origin in a criminal matter in York County, Pennsylvania. While respondent is not a member of the Pennsylvania Bar, he was admitted pro hac vice to represent Noel Montalvo in a first-degree murder case. A member of the Pennsylvania Bar was retained as local counsel. Mr. Montalvo was convicted and an appeal was taken. Respondent accepted $20,000 to represent Mr. Montalvo on appeal. Instead of handling the appeal himself, respondent hired local counsel to proceed with the appeal and paid him $5,000. Respondent kept $15,000 but did no legal work. Mr. Montalvo was not advised of this.

Respondent was found to have violated multiple Rules of Professional Conduct: 1.3,1.4(a), 1.4(b), 1.5(a), 1.5(e) (1) and (2), 1.15(b), 1.16(a) and 8.4(c). The Disciplinary Board determined that a private reprimand was appropriate discipline. By order of October 7, 2004, respondent was ordered to refund the unearned fee of $ 15,000 to the Montalvo family and to appear on January 18,2005 for a private reprimand. The record is clear that respondent received notice of the private reprimand, and his rights and obligations pertaining thereto. Respondent was aware that he had the right to demand the institution of formal proceedings. Respondent did not avail himself of this right. Instead, respondent by letter of October 27,2004, informed the secretary of the board that he accepted the recommendation of the board and would attend the private reprimand. Respondent did not appear on January 18,/2005, nor did he fulfill the condition of returning unearned monies to the Montalvo family. Subsequent to his non-appearance the within petition for discipline was filed against respondent.

To further aggravate the situation, respondent failed to appear for the pre-hearing conference or the disciplinary hearing. Respondent filed a brief to the committee, although it was filed 27 days after the due date. Petitioner objected to the brief due to the untimely nature of its filing and as to the introduction of factual matters not of record. The committee decided to consider respondent’s brief as it was looking for some reasonable explanation to justify respondent’s continued lack of participation and his refusal to return the funds as directed. The committee found respondent’s reasons for nonpayment disingenuous and his promise to pay future monthly installments unconvincing. The committee further found that respondent’s failure to appear at the private reprimand, the pre-hearing conference and the disciplinary hearing could not be rationalized. The committee, having reached no understanding of respondent’s position on this matter, concluded that a 15-month period of suspension was appropriate discipline.

Respondent filed a brief on exceptions and offered that he forwarded to his client’s mother an installment payment of $5,000. Petitioner filed a brief opposing exceptions and filed a contemporaneous motion to reopen the record to consider respondent’s evidence concerning the partial payment. At the meeting of November 9,2005, the board considered the motion and determined to deny it based on the fact that respondent had ample opportunity to set forth any evidence he deemed critical for the board and the Supreme Court to consider. Subsequently, on January 17,2006, respondent filed with the board a motion to reopen disciplinary case to supplement the record, for the purpose of demonstrating that he made complete restitution to the Montalvo family. Respondent submitted to the board a check, cover letter and postal receipt in support of his claim of restitution.

The board concurs with the Hearing Committee that a suspension is the necessary response to an attorney who ignores his obligations to the disciplinary system. While respondent is not a member of the Pennsylvania Bar, by his pro hac vice admission he has submitted himself to the rules and regulations governing attorneys who practice law in this Commonwealth. The board is persuaded that a one-year period of suspension is appropriate to address this respondent’s misconduct. Respondent was on notice since October 7, 2004, that by directive of the Disciplinary Board he must refund $ 15,000 to the Montalvo family. While the board is willing to accept at face value the lately submitted evidence that respondent made restitution, our recommendation remains the same. The board and the Supreme Court take very seriously the acts of an attorney evidencing repeated disregard for his professional obligations to his client and the disciplinary system. Respondent’s careless and lackadaisical attitude precipitated his full-blown entanglement with the disciplinary system, causing a matter that could have been handled privately to result in a loss of his license. While respondent may believe that he has wiped clean his slate by finally making restitution some 15 months after being directed to do so, this matter was never predicated solely on the return of monies to the Montalvo family. Respondent’s failure to recognize and respond to the disciplinary system of this Commonwealth on numerous occasions warrants his suspension from the practice of law.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Francis S. Cutruzzula, be suspended from the practice of law for a period of one year.

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 Saidis, Newman, Gephart and O’Connor dissented and would recommend a suspension of 15 months with the requirement that restitution to the client be a condition of reinstatement.

DISSENTING OPINION

O’CONNOR, Member,

March 28,2006 — The undersigned respectfully dissents from the report and recommendation of the majority in this matter.

While the facts set forth by the majority are accurate, a few more telling aspects of the respondent’s character were ignored. Mr. Cutruzzula agreed to pay another lawyer $5,000 to represent Mr. Montalvo but only paid him $3,000. In addition Mr. Cutruzzula asked if he could make partial payments and then decided on his own it was acceptable after being told to contact the Disciplinary Board.

Mr. Cutruzzula knew of the private reprimand to be administered but ignored it and decided not to attend. Notice was received by him of the hearing and once again, he elected not to notify the board he would not attend, choosing instead to just not show up.

Here we have an attorney in a neighboring state who requested permission to appear in the Commonwealth. After permission was granted, the respondent violated 11 of our rules.

A review of the record finds little mitigating evidence other than that respondent has no prior record with us.

Mr. Cutruzzula appears to believe he can ignore our rules and regulations, pay back the money he was ordered to pay and get off without having to apply for reinstatement. I disagree.

No good reasons were set forth why the respondent violated the rules and then chose to ignore our disciplinary system. The actions of Mr. Cutruzzula appear to be more indicative of his desire to do as he feels and not follow the regulations. He kept money he did not deserve, failed to pay another lawyer for services rendered, was not honest about the facts and ignored the board and Hearing Committee. This man gives lawyers a bad name and should be forced to reapply for admission before being allowed to practice law in the Commonwealth.

It is respectfully submitted a more proper recommendation is a 15-month suspension.

Board Members Saidis, Newman and Gephart join in this dissenting opinion.

ORDER

And now, June 14, 2006, upon consideration of the report and recommendations of the Disciplinary Board and dissenting opinion dated March 28, 2006, it is hereby ordered that Francis S. Cutruzzula be and he is suspended from the practice of law in this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

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


source: Caselaw Access Project

author: GEORGE, J,

license: Public Domain

text:
    Knaupp v. Bolen

      Elias B. Landau, for plaintiffs.

      John I. Gordon, for defendants.
    July 11, 2006
   GEORGE, J,

This matter comes before the court on the preliminary objections of several defendants to a second amended complaint filed by the plaintiffs. The amended complaint was filed as a result of this court’s order on previous preliminary objections, which struck the complaint in its entirety, but permitted the plaintiffs to file an amended complaint. As with the previous complaint, the second amended complaint has prompted a host of preliminary objections by the various parties. Since the second amended complaint contains factual allegations slightly different than the original pleading, a brief history as alleged by that complaint will be summarized.

On May 26,2002, Kyle Knaupp, a minor, was injured as a result of being thrown from an all-terrain vehicle that he was operating, but was owned by defendants John and Sherie Sanders. Without identifying the specific location of the accident, the latest version of Knaupp’s complaint alleges that the accident occurred in Adams County, Pennsylvania. Knaupp claims that he has suffered injuries consisting of, inter alia, a fractured arm and elbow as a result of the accident. Knaupp’s second amended complaint seeks to recover damages on claims of negligence against the several defendants, as well as a cause of action for a loss of consortium brought by Knaupp’s parents. Since the specific allegations underlying the negligence claims are numerous, they will not be recited herein, except as they apply to the preliminary objections raised by the defendants. For purposes of clarity, the preliminary objections will be addressed separately since some objections are raised in the context of the complaint’s application to individual defendants.

DONALD BOLEN’S DEMURRER

Donald Bolen, in his preliminary objection, correctly points out that there are no factual allegations contained in the second amended complaint referencing any acts or omissions by Donald Bolen, although he is named as a defendant in the caption of this action. His demurrer will therefore be granted. Since the statute of limitations in this matter has expired, plaintiff will not be given the opportunity to further amend the complaint. Accordingly, the cause of action against Donald Bolen is dismissed with prejudice.

MOTION TO STRIKE ALLEGATIONS OF INTOXICATION

Paragraph 28 of plaintiffs’ complaint alleges negligence on the part of Sandra Bolen by “recklessly keeping the minor in an environment while alcoholic beverages were being used up to and beyond the point of intoxication,” thereby increasing the risk that the minor plaintiff would not receive prompt, necessary and appropriate medical attention. Sandra Bolen seeks to strike this allegation on the basis that the probative value, if any, is far outweighed by the danger of prejudice and confusion. In their response to the preliminary objections, plaintiffs concede that they make no specific allegation that Sandra Bolen was intoxicated or nearly intoxicated. Rather, they claim that she kept the minor at a drinking party instead of obtaining appropriate medical care.

This allegation is clearly irrelevant to the material issues of the case. The critical inquiry is whether Sandra Bolen had a duty to obtain prompt medical care for the plaintiff and was negligent in performing that duty. Absent allegations of intoxication on the part of Sandra Bolen, the allegations concerning the presence of alcohol at the location are both immaterial and prejudicial. Accordingly, paragraph 28(k) of the second amended complaint is stricken.

MOTION TO STRIKE PARAGRAPH 28

Paragraph 28 of the second amended complaint alleges that Sandra Bolen was negligent in failing to properly supervise Kyle Knaupp, and in permitting or failing to forbid Knaupp from operating the all-terrain vehicle. Although Bolen classifies the preliminary objection as a motion to strike, the preliminary objection serves as a demurrer to several of the theories of negligence alleged by Knaupp. Essentially, Bolen argues that, as a matter of law, it cannot be negligence for a person, acting in loco parentis, to permit a 14-year-old to go unattended. This argument is supplemented by the claim that Bolen was not present for the accident and had neither permitted Knaupp to operate the all-terrain vehicle nor had the ability to control the all-terrain vehicle.

“Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt.” Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). “The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief.” League of Women Voters of Pennsylvania v. Commonwealth, 692 A.2d 263, 267 (Pa. Commw. 1997). “In ruling on preliminary objections, all well-pleaded facts in the petition for review and all inferences reasonably deducible therefrom must be accepted as true.” Id.

The allegations that are currently at issue find their genesis in the theory of negligent supervision. Pennsylvania appellate courts have recognized that “parents have a duty to exercise reasonable care to protect, their [minor] children and keep them from danger.” Miller v. Leljedal, 71 Pa. Commw. 372, 379, 455 A.2d 256, 259 (1983). The Miller court sets forth the standard as follows:

“[I]n short, although a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits. The standard to be applied is the traditional one of reasonableness, but viewed in light of the parental role. Thus, we think the proper test of a parent’s conduct is this: what would an ordinarily reasonable and prudent parent have done in similar circumstances?” Id. at 380, 455 A.2d at 260.

“Amere misjudgment in supervising one’s child would not necessarily constitute a tortious breach of duty. In determining whether the bounds of reasonable behavior have been transgressed, all of the relevant facts and circumstances would have to be considered. In a supervision situation, among the foremost are bound to be the existence of the relation of parent and child; the practical responsibilities, expectations and limitations that flow therefrom; and the judgmental nature of the decisions a parent must make in functioning in that capacity.” Id. at 381, 455 A.2d at 260.

Although Knaupp’s claims against Bolen recognize that a parent-child relationship did not exist, the allegations in the complaint establish that Bolen was acting in loco parentis. It would appear, therefore, that the reasoning of the Miller court is equally applicable to the current circumstance in clarifying the theory of liability.

After viewing the allegations in Knaupp’s complaint against this legal background, I conclude that a number of the allegations are sufficient to survive demurrer. As noted, Knaupp alleges that Sandra Bolen agreed to undertake the care, custody and control of the minor. The complaint further alleges that Sandra Bolen was aware that Knaupp would be operating an all-terrain vehicle while under her care. Also, she was aware that Knaupp lacked the experience, skill, training and/or maturity necessary to operate the vehicle safely, yet failed to properly supervise him so as to prevent his operation of the all-terrain vehicle. In light of these allegations, the issue of whether her actions were reasonable is properly submitted to the finder of fact. Dattola v. Burt Bros. Inc., 288 Pa. 134, 136, 135 A. 736, 737 (1927) (the question of proper supervision, or lack thereof, is one of fact and usually for the jury). Accordingly, I find that the allegations of paragraphs 28(c), 28(d), 28(e), 28(f) and 28(g) are sufficient, at this stage, to survive demurrer.

The allegations in paragraphs 28(a) and 28(b) present a slightly different issue. Those allegations include general claims that Sandra Bolen failed to monitor and supervise either Knaupp or her son, Chris Bolen. In Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971) the court held that it was not negligence, as a matter of law, for parents to allow a 9-year-old child to go unattended outside of their home. The general allegations in Knaupp’s complaint, which imply a duty to continuously supervise a 14-year-old child, fall into the same category of alleged negligence which our Supreme Court has ruled to be insufficient as a matter of law. Accordingly, the allegations in paragraphs 28(a) and 28(b) shall be stricken.

MOTION TO STRIKE COUNT III

In Count III of the complaint, Knaupp alleges a cause of action against the minor, Chris Bolen, on the basis that Chris Bolen negligently permitted Knaupp to operate the all-terrain vehicle and further was negligent in supervising Knaupp. Chris Bolen demurrers on the basis that there is no duty of care owed by him to another minor. Additionally, Chris Bolen argues that the allegations alleged by Knaupp are contrary to facts known by all parties.

Initially, I note that this matter comes before the court on preliminary objections rather than on motion for summary judgment. The critical distinction between these procedures is that the parties have not yet had the opportunity to develop the undisputed factual background, as would normally occur prior to a notice for summary judgment. Instantly, I must accept all well-pled facts in the complaint as true. League of Women Voters of Pennsylvania, 692 A.2d at 267. Therefore, Bolen’s argument that the allegations in the complaint are contrary to the known facts is premature.

In addressing whether a legal duty exists between Chris Bolen and Knaupp it appears that the complaint alleges a cause of action for negligent entrustment. Pennsylvania jurisprudence recognizes the tort of negligent entrustment as a valid legal theory under which one may pursue recovery for damages. See Christiansen v. Silfies, 446 Pa. Super. 464, 472, 667 A.2d 396, 400 (1995). Under a theory of negligent entrustment, liability is imposed because of a person’s actions “in relation to an instrumentality or activity under [his or] her control.” Id. at 473, 667 A.2d at 400. The fact that the instrumentality or activity at issue is under the control of a minor is of little import. In Frey v. Smith, 454 Pa. Super. 242, 685 A.2d 169 (1996), the Superior Court expressly acknowledged that a minor may be found negligent in such circumstances. I find this precedent to be binding on this court in respect to the majority of Chris Bolen’s motion to strike Count III.

The motion to strike, however, will be sustained in regard to the allegations in subparagraphs 43(e), (f) and (g). Those allegations essentially allege a theory based upon Chris Bolen’s supervision of Knaupp. As this court recently recognized in Garland v. J.W.J., 05-S-285 (Adams Cty.) (June 9, 2006 opinion), the theories of negligent supervision and negligent entrustment are entirely different legal theories requiring entirely different proof. Essential to the theory of negligent supervision is the ability of one party to control or supervise the conduct of another. I find no legal support, nor support in the factual background alleged by Knaupp, to establish a duty on the part of a minor, Chris Bolen, to supervise another minor, Knaupp. Since the allegations referenced in subparagraphs 43(c), (f) and (g) each sound in negligent supervision, they will be stricken.

MOTION TO STRIKE PUNITIVE DAMAGES

All Bolen defendants object to Knaupp’s demand for punitive damages. For the reasons set forth below, the preliminaiy objections in regard to punitive damages are sustained and all claims for punitive damages are dismissed.

Our Supreme Court has recently discussed the issue of punitive damages in relation to a negligence claim in Hutchison v. Luddy as follows:

“The standard governing the award of punitive damages in Pennsylvania is settled. ‘Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’... As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct____ The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct____Additionally, this court has stressed that, when assessing the propriety of the imposition of punitive damages, ‘ [t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious. ’ ” Hutchison v. Luddy, 582 Pa. 114, 122, 870 A.2d 766, 770 (2005) (citations omitted) (quoting Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984)).

The Supreme Court further enunciated that “in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Id. at 124, 870 A.2d at 772.

The general theories alleged by Knaupp in his complaint are negligent supervision and negligent entrustment. The allegations essentially paint a picture of adults, in loco parentis, permitting and/or failing to prohibit a minor from operating an all-terrain vehicle without sufficient training. The allegations also include the claim of one minor being negligent in entrusting an all-terrain vehicle to another minor. Other than Knaupp’s boilerplate use of the word “reckless,” there is nothing in the complaint to suggest either outrageous or malicious conduct on the part of the defendants. Critically, there is a paucity of factual allegations evidencing an evil state of mind or even a disregard for a heightened risk of harm greater than ordinary negligence. While I certainly recognize that punitive damages may be appropriate in cases involving negligent supervision, Hutchison cited above, I am unwilling to accept Knaupp’s proposition that all cases of negligent supervision or negligent entrustment justify the imposition of punitive damages. Accepting Knaupp’s argument that punitive damages are appropriate under the facts alleged in the complaint would result in a total disregard for Pennsylvania appellate authority which has historically recognized a requirement of pleading and proving outrageous conduct prior to the imposition of punitive damages. Accordingly, the demands for punitive damages will be stricken.

DEMURRER

Defendant, Sandra Bolen, demurs to Knaupp’s claim that she was negligent in failing to promptly obtain medical care for Knaupp following the accident. Sandra Bolen objects on the basis that Knaupp’s complaint fails to identify any damages caused as a result of the alleged omissions of Sandra Bolen. Sandra Bolen further argues that she could not be liable as a matter of law for breach of a duty which she had the inability to comply with since, she claims, she did not have permission from Knaupp’s parents sufficient to authorize medical treatment. While the facts in this matter which are ultimately developed through discovery may support a pretrial dispositive motion, I am reminded that at this stage of the litigation I am considering a demurrer. The complaint specifically alleges that Sandra Bolen’s failure to obtain medical treatment “increased the minor plaintiff’s pain and suffering and/or increased the severity and/or duration of his injuries.” Second amended complaint, paragraph 30. Moreover, whether Sandra Bolen acted reasonably in addressing the injuries suffered by a minor alleged to be under her supervision is a question of fact which is not appropriate for disposition at this stage of the proceedings. Accordingly, this demurrer will be overruled.

SANDERS’ MOTION TO STRIKE

Sanders defendants seek to strike the complaint against “Cherie” Sanders on the basis that the defendant’s legal name is “Sherry” Sanders. In noting that there have been a number of erroneous references to Sherry Sanders in the various pleadings filed in this matter, Sanders suggests that they “should not have to respond to the careless pleadings filed to date that do not [properly identify Sherry Sanders].” Sanders’ preliminary objection, paragraph 6. I agree. The numerous misidentifications of Sherry Sanders only serve to garble what has already a confused history of pleading. Accordingly, the complaint is dismissed as it relates to any party identified in the complaint as “Cherie Sanders” or “Sherie Sanders”. Nevertheless, plaintiff once again will be given the opportunity to file an amended complaint. For the foregoing reasons, the attached order is entered.

ORDER

And now, July 11, 2006, it is hereby ordered that the preliminary objection of Donald Bolen is sustained, the cause of action against Donald Bolen is dismissed with prejudice. It is further ordered that Sandra Bolen’s motion to strike subparagraphs 28(a), 28(b) and 28(k) is sustained; the preliminary objection of Chris Bolen seeking to strike subparagraphs 43(e), 43(f) and 43(g) is sustained; the Bolens’ demurrer to punitive damages in all counts is sustained; and Sherry Sanders’ preliminary objection seeking to strike all claims against her is sustained. All other preliminary objections are overruled. Plaintiff is permitted the opportunity to file an amended complaint in compliance with the attached opinion. In that regard, plaintiff is directed to omit all references in the caption of this matter to those parties who have been dismissed from this litigation. Additionally, improper designation of the defendant, Sherry Sanders, may result in dismissal of the claims against her with prejudice.

Amended complaint filed pursuant to this order shall be filed within 20 days of the date of this order. Should the plaintiff fail to file an amended complaint within the time period set forth herein, this litigation will proceed on the surviving allegations of the second amended complaint, however, the cause of action against Sherry Sanders will be dismissed with prejudice upon praecipe.

      . In addressing preliminary objections which include a demurrer to the cause of action, the court must accept all allegations in the complaint as true. Sherk v. County of Dauphin, 531 Pa. 515, 516, 614 A.2d 226, 227 (1992).

      . For purposes of this factual background, the designation of the parties as used by Knaupp in his pleadings is repeated herein. This designation should not be interpreted as a determination by the court as to the true legal names of the parties. In this regard, it is noted that at various times a named defendant has been identified by the plaintiff as “Cherie Sanders,” “Sherie Sanders” and “Sherry Sanders.”

      . The court notes that Knaupp’s original complaint alleged that the accident occurred at a Bolen family gathering in the Pocono Mountains, Pennsylvania.

      . In granting permission to amend the complaint, I note that the statute of limitations has expired in this particular matter. However, if an amendment of the pleadings merely corrects the name of a party, such an amendment is permissible after the statute of limitations has run, provided that the adverse party is not deprived of any potential rights. Peaceman v. Tedesco, 51 Pa. Commw. 544, 414 A.2d 1119 (1980). Sherry Sanders appears to have been properly served and has participated in the previous litigation despite having been misidentified in the various pleadings to date. Therefore, amendment will be permitted.


author: DOERR, P. J,

text:
    Kalnas v. Kalnas

      William R. Bishop Jr., for plaintiff.

      Angelo A. Papa, for defendant.
    December 11, 2006
   DOERR, P. J,

Presently before this court are defendant Andrew Joseph Kalnas’ petition to open or set aside marital settlement agreement, petition to lift stay and adjudicated contempt filed by plaintiff Suzanne Renee Kalnas.

BRIEF FACTUAL BACKGROUND

This case has an unusually lengthy, complex and contentious history. We give a case summary to provide the proper context within which to evaluate the issues before this court. Susan Renee Kalnas (Wife) and Andrew Joseph Kalnas (Husband) were divorced on May 2, 1996. At that time, the parties entered into a non-modifiable marriage settlement agreement, which provided, inter alia, the payment of alimony and child support for Wife as follows:

June 1, 1998 through December 31,2001 $10,000 per month

January 1, 2002 through May 31,2010 $9,000 per month

June 1, 2010 through December 31,2010 $7,000 per month

January 1,2011 through February 28,2013 $6,000 per month

In 2000, Husband experienced financial difficulties and was unable to make the requisite payments, which resulted in Wife initiating numerous contempt proceedings. Husband’s support payments were ultimately reduced. On June 12, 2003, Husband filed a motion to set aside or open the non-modifiable marital agreement, and we heard argument on September 8, 2003. The parties were instructed to file briefs on the matter. On November 4,2003, prior to our ruling, the Domestic Relations Office filed a petition for contempt against Husband alleging his arrearages exceeded $279,000. On December 17, 2003, Husband filed a motion to continue and consolidate the contempt hearing, as discovery was incomplete.

On that same day, we granted Husband’s motion and the hearing was continued until February 10, 2004. On December 19,2003, Wife filed an emergency motion for reconsideration, as well as an answer to Husband’s motion to continue and consolidate the contempt hearing. On December 30, 2003, we denied the motion as we found, based on a review of the record, Husband was making payments consistent with his earning capacity. (See order of court 12/30/03.)

In the interim, Husband filed a modification petition for support on January 6,2004. This matter was continued generally by order of court dated February 3, 2004 as Wife filed an appeal, which Superior Court quashed as interlocutory in an unpublished opinion dated December 30,2004, slip op., docketed at WDAno. 53 2004. A hearing on the matter was then scheduled for September 9, 2005 and a subsequent hearing scheduled on January 13, 2006 to complete testimony. Following the completion of testimony, we advised the parties that the issue of whether the agreement could be opened, set aside or modified must be decided prior to reaching the contempt issue.

LEGAL STANDARD

In Pennsylvania, a settlement agreement between a Husband and Wife is governed by the law of contracts unless the agreement states otherwise. Stamerro v. Stamerro, 889 A.2d 1251 (Pa. Super. 2005). In order for a contract to be valid, there must be mutual assent of the contracting parties. Degenhardt v. Dillon Co., 543 Pa. 146, 669 A.2d 946 (1996). Established Pennsylvania law states: When interpreting the language of a contract, the intention of the parties is a paramount consideration. In determining the intent of the parties to a written agreement, the court looks to what they have clearly expressed, for the law does not assume that the language was chosen carelessly. When agreements containing clear and unambiguous terms, as here, where the contract is written, the intent of the parties is determined from the writing itself. Id; see also, Kripp v. Kripp, 578 Pa. 82, 849 A.2d 1159 (2004).

Additionally, where the language is clear and unambiguous, the intent of the parties “is to be determined only from the express language of the agreement.” Litwack v. Litwack, 289 Pa. Super. 405, 408, 433 A.2d 514, 515 (1981). (emphasis added) The court will not, without fraud, mistake or overreaching, redraft a contract to be more beneficial to a party than the agreement, which they chose to enter. Stamerro, supra.

DISCUSSION

With the foregoing principles in mind, we turn to the agreement that is the initial focus of the parties’ dispute in this case. Husband argues that unforeseen circumstances now make it impossible for him to perform and warrant a modification of the agreement. He argues additionally, as grounds for modification or as grounds to set aside the agreement, past and current fraud on the part of Wife. We address each argument seriatim, beginning with whether the agreement lends itself to modification, contains language or conditions permitting it to be opened or set aside.

In article XVIII of the agreement, the parties stated that the entire agreement is non-modifiable. See exhibit 5, article XVIII Modification. Thus, the parties expressly included language precluding modification. For guidance in interpreting expressions in which the parties depend upon, and must be considered in, we look to the context in which they were manifested. See Murray on Contacts, 3d ed., §88A at 421.

If a court seeks to determine the meaning attributed by the parties to their expressions of agreement, it is important for the court to place itself in the position of the parties at the time of contract formation. It must take into account all of the surrounding circumstances prior to, and contemporaneous with, the making of the contract so as to more precisely identify the sense of the expressions in question as apparently understood by the parties. Id., section 88A. (footnotes omitted)

In the instant matter, at the time of execution of the agreement, both parties had the benefit of counsel. Mark J. Goldberg, Esquire and Kerri Lee Cappella, Esquire represented Husband. Her current counsel, William R. Bishop, Esquire, represented Wife. The pertinent language provides: “[e]ach party fully understands the facts and each party acknowledges and accepts that this final property settlement agreement, is under the circumstances, fair, just and equitable, and that it is being entered into freely and voluntarily after having received such legal advice and with such knowledge as he or she chooses to obtain, and that the execution of this final property settlement agreement is not the result of any duress or undue influence and that it is not the result of any collusion or improper or illegal agreement or agree- merits.” (emphasis added) Both parties executed provisions waiving their respective rights to have the Court of Common Pleas of Butler County, Pennsylvania or any other court of competent jurisdiction make determinations regarding support. See exhibit 5, article III, Legal Advice.

Husband’s obligation to pay current and future maintenance was set forth in terms of specific amounts and duration. It is also clear that parties agreed that maintenance shall not be modified or terminated except upon certain specified conditions. When the parties so agree, maintenance may be modified or terminated only under the circumstances specified in the agreement. The purpose of allowing parties to agree in advance to the circumstances under which maintenance may be modified or terminated is to permit them to plan for the future by eliminating concerns based upon subsequent motions to increase or decrease their obligations, such as what has transpired in the case sub judice.

In article VIII, the terms under which support would be modified downward occurs in the event of Wife’s remarriage or cohabitation. This did not occur nor is it alleged. Further, alimony would terminate upon the death of Husband, which is inapplicable here. After a thorough review of the transcripts in this matter, as well as considering all testimony presented at the hearings, I find there is no ambiguity in this language, and it is sufficient to express the parties’ intention that the maintenance provisions of the agreement are not to be modified.

Husband next contends that, even if there were a valid agreement existing between the parties, his performance should be excused due to legal impossibility. Husband maintains that he is unable to obtain the necessary financing to meet the obligations of the marital settlement agreement and, as such, his obligations under the contract should be excused. We find this argument to be meritless. Legal impossibility or impracticability is defined in section 261 of the Restatement (Second) of Contracts. See Luber v. Luber, 418 Pa. Super. 542, 614 A.2d 771 (1992). This section states:

“Section 261. Discharge by supervening impracticability

“Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate to the contrary.

“Husband maintains that his inability to earn his past income due to the failure of his business renders it impossible for him to perform his obligations under the marital settlement agreement. Husband’s assertions betray a misunderstanding of the concept of legal impossibility or impracticability. Comment b to section 261 indicates that in order for a discharge to occur under this theory there must be the occurrence of a supervening event, the non-occurrence of which was a basic assumption on which both parties based their contractual agreement. Comment b to section 261 also states that the financial inability of one of the parties to complete obligations under the contract will not effect a discharge under this section. The theory of legal impossibility or impracticability is based on an objective standard and will not apply if a performance remains practicable and is merely beyond a particular party’s capacity to render it. Section 261 of the Restatement (Second) of Contracts, comment e; Dorn v. Stanhope Steel Inc., 368 Pa. Super. 557, 534 A.2d 798 (1987), appeal denied, 518 Pa. 656, 544 A.2d 1342 (1988). In order to prevail under the theory of legal impracticability, Husband must establish that the act contemplated under the contract, [the ability to ever earn his former income,] is incapable of being performed, rather than the fact he is incapable of performing it.” Luber, at 548-49, 614 A.2d at 774.

Therefore, based upon the foregoing, we conclude Husband’s allegations of diminished financial circumstances did not warrant modification of his support obligation under the parties’ agreement. Husband is bound by his contract.

Turning to the second argument of fraud in the execution of the contract, we note this “Commonwealth has accepted the principle in Restatement (Second) of Contracts §205 that c[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.’” John B. Conomos Inc., v. Sun Company Inc. (R & M), 831 A.2d 696, 705-706 (Pa. Super. 2003), appeal denied, 577 Pa. 697, 845 A.2d 818 (2004). (citation omitted) “The duty of ‘good faith’ has been defined as ‘ [h]onesty in fact in the conduct or transaction concerned.’” Somers v. Somers, 418 Pa. Super. 131, 136, 613 A.2d 1211, 1213 (1992). (citation omitted)

“The obligation to act in good faith in the performance of contractual duties varies somewhat with the context, . . . and a complete catalogue of types of bad faith is impossible, but it is possible to recognize certain strains of bad faith which include: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.” Id. (internal citations omitted) As stated supra, Husband alleges fraudulent conduct on the part of Wife as grounds to set aside the agreement. Specifically, Husband avers Wife failed to disclose a meretricious relationship with her attorney and principal debtor resulting in an asset he referred to as “free legal advice.” (N.T. 9/9/05; 1/13/06.) To prove fraud, a plaintiff must demonstrate by clear and convincing evidence: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Unsupported assertions and conclusory accusations cannot create genuine issues of material fact as to the existence of fraud. Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa. Super. 2002), appeal denied, 573 Pa. 714, 828 A.2d 349 (2003).

Viewing the evidence in the light most favorable to Husband, the statements concerning the meretricious relationship do plant the seeds of a fraudulent misrepresentation. If the allegations are true, it taxes credulity to assume that the debt in question is in fact truly outstanding. Misrepresentations made under such circumstances are fraudulent. Germantown Manufacturing Company v. Rawlinson, 341 Pa. Super. 42, 491 A.2d 138 (1985). In this situation, Husband’s situation involves or implies a situation where the maker expressly or impliedly suggests that the statement is based on something more than mere opinion. We remain cognizant that counsel for Wife remains her principal debtor. Further, Husband never testified that, but for the misrepresentation, he would not have entered into the contract. Therefore, without more, we are constrained to find this allegation fails to support a finding of fraud in the inducement of the contract.

We now address the issue of contempt. We find Husband’s failure to abide by the agreement was not willful. A careful review of the record and testimony heard by this court during the numerous hearings in this matter reveals Husband’s failure to comply with his support obligations under the agreement was due to his financial inability. We find he is current to the best of his ability under the circumstances. It is uncontested that Husband’s business experienced a catastrophic downturn. Contempt arises from a willful disobedience of a court order. Gunther v. Bolus, 853 A.2d 1014, 1017 (Pa. Super. 2004). A willful act is defined as one “done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done.” Id. Where a contemnor is unable, without fault on his part, to obey an order of the court, he is not to be held in contempt. Herein, we find Husband continues to fulfill his support obligations to the extent he is financially able, consistent with his earning capacity. Thus, we hold the facts and circumstances of this case do not warrant a finding of contempt.

Accordingly, we enter the following:

ORDER

And now, December 11, 2006, upon consideration of the within petition to open or set aside marital settlement agreement filed by defendant Andrew Joseph Kalnas, the respective responses in opposition, the memoranda of law in support and in opposition, all matters of record, and in accord with the opinion issued contemporaneously, it is hereby ordered, adjudged and decreed that said motion is denied.

It is further ordered that based upon a review of the Butler County Domestic Relations records, the parties’ responses in opposition, the memoranda of law in support and in opposition and consistent with the opinion filed contemporaneously with this order, this court finds that defendant has made payments consistent with his earning capacity.

The petition to lift stay and adjudicate contempt filed by plaintiff is denied.

      . The court takes judicial notice of all prior family court orders and agreements pertaining to and referenced to in the above-captioned matter.

      . Herein, both parties have raised the arbitration provisions of the agreement concerning default by either party. However, we note the issue before the court is not default by either party, but rather whether the agreement is subject to modification or whether it is unenforceable due to impracticability, fraud or impossibility of performance. Therefore, we find the threshold issue is one properly before this court and not subject to an interpretation by the arbitrator.

      . N.T. refers to notes of testimony, hearing January 13, 2006.


author: CARRAFIELLO, J,

text:
    City of Philadelphia v. Kim

      James Joseph Zwolak, for the City of Philadelphia.

      Henry Jacobson, for defendants.
    March 27, 2006
   CARRAFIELLO, J,

Suk Hyuk Kim and Myo Won Kim, h/w, appeal from the order of Court of Common Pleas of Philadelphia issued on January 18, 2006, denying their motion to set aside the tax sale. On December 18,2004, the Commonwealth Court reversed this court’s order and remanded with instructions to consider the remaining issues raised in the original petition.

FACTUAL AND PROCEDURAL HISTORY

Suk Hyuk Kim and Myo Won Kim (appellants) are husband and wife and in 1980 bought property at 3632-34 Germantown Avenue in Philadelphia as tenants by the entireties. On May 21, 2003, the City of Philadelphia filed a petition and rule to sell the property due to outstanding real estate taxes. At the September 17,2003 tax lien sale Bernard Krik purchased the property for $112,000.

Appellants filed a petition to set aside the tax sale which this court granted on November 25, 2003, after determining that Suk Hyuk Kim’s name had been misspelled on the notices of the sheriff’s sale and in caption of the case, since his surname Kim was not listed. This order was appealed and on December 8,2004, the Commonwealth Court reversed our decision, holding that the notice was sufficient as to the names because “the name Suk Hyuk was not posted in public notices separately from his wife’s name” and that “the name Suk Hyuk is essentially the same as the name Suk Hyuk Kim when it is read in conjunction with his wife’s full name being listed immediately thereafter.” (Commw. Ct. opinion, p. 4.)

The Commonwealth Court remanded with instructions for this court to consider the remaining issues raised in the original petition to set aside the tax sale and the objections thereto. Pursuant to this court’s December 15, 2004 order, the parties submitted memorandum of law and on January 18, 2006, this court denied appellant’s motion to set aside tax sale. This timely appeal followed.

LEGAL DISCUSSION

Appellants filed a timely 1925(b) concise statement of matters complained of on appeal wherein they allege six issues of error with numerous subparts. Condensed, the issues raised are: notice, legal standing, gross inadequacy of price and this court’s decision not to hold a hearing in this matter.

Notice

Appellants claim that the tax sale should be set aside because the city failed to properly notify them of the sale. 53 P.S. §7193.2 requires the city to attempt to serve its petition upon owners and mortgagees by certified mail, first class mail, and posting of the premises.

On May 21, 2003, the city sent notice of the petition to sell and rale by regular and certified mail to the address registered by appellants as being their mailing address, that being the address of the property. Although appellants allege their son verbally notified the city of their change of address, this verbal notification is not considered sufficient under the relevant statute. 53 P.S. §7193 states an owner of real property “shall register a notice with the department of the city . . . responsible for the collection of tax . . . stating his name, residence and mailing address. . . . The interested party shall file an amended registration as needed.” It is undisputed that appellants did not register their new address. Nor did appellants provide evidence that posting was not made at the premises. Because appellants did not register their new address or provide any evidence that the city did not meet the notice requirements, this allegation of error must fail.

Legal Standing

53 P.S. §7193.2(b) also provides,

“[N]o party whose interest did not appear on a title search ... or tax information certificate or who failed to register his interest and address pursuant to section 39.1 of this act shall have standing to complain of improper notice if the city shall have complied with subsection (a) of this section.”

Because the city complied with notice requirements under 53 P.S. §7193.2(a), appellants do not have standing to contest the validity of service and this claim must also fail.

Inadequacy of Price

Appellants also challenge the tax sale on the grounds that the property was sold for an allegedly grossly inadequate price. Mere inadequacy of sales price is not a sufficient ground to set aside the sheriff’s sale; the sale price must be grossly inadequate. S & T Bank by Dalessio v. Dalessio, 429 Pa. Super. 282, 632 A.2d 566 (1993). The term “grossly inadequate” has never been fixed at any given amount or percentage of amount of sale; instead the court must look at each case on its own facts. Scott v. Adal Corporation, 353 Pa. Super. 288, 509 A.2d 1279 (1986). Further, it is presumed that the price received at a duly advertised public sale is the highest and best obtainable. First Federal Savings & Loan Association v. Swift, 457 Pa. 206, 321 A.2d 895 (1974).

In order to show that the property was purchased at a grossly inadequate price, appellants must establish the value of the property. While appellants assert that the property is valued at $500,000 (supplemental memorandum of law, p. 21) they have offered no evidence, other than their representation, that the property has such a value. Appellants have only provided us with the price they allegedly paid in 1980 ($ 180,000) and the price that was paid at the sheriff’s sale ($112,000). Without more this court cannot make a finding as to inadequacy of price and therefore this allegation of error must fail.

Hearing

As this matter was reviewed on remand by the Commonwealth Court, we were to consider only those issues raised by the original petition. Pursuant to a December 15,2004 order, the parties were granted the opportunity to provide this court with memorandum setting forth what they considered to be the remaining issues. In addition, the parties had the option of presenting evidence by deposition before we entered our first order. Therefore, a hearing was not needed and this court properly proceeded on the briefs, memorandum of law and deposition testimony.

For the reasons set forth herein, this court’s order of January 18, 2006 should be affirmed.

      . The entries were captioned as: “Suk Hyuk
      Myo Won Kim h/w”.


author: BROWN JR., P.J,

text:
    DWS International Trading Inc. v. Century Finance Inc.

      Adam M. Shienvold, for plaintiff.

      Faith M. Lucchesi, for defendant Mannino.
    April 17, 2007
   BROWN JR., P.J,

Before the court is a motion for summary judgment against defendant Samuel Mannino, filed by plaintiff DWS International Trading Inc., d/b/a Marble Dimensions. Because this court determines no genuine issues of material fact remain, plaintiff’s motion is granted.

HISTORY

On October 1,2001, plaintiff DWS International Trading Inc., d/b/a Marble Dimensions, and defendant Century Finance Inc. entered into a consignment sales agreement. Pursuant to the agreement, between October 1, 2001 and October 4, 2001, plaintiff shipped stone and marble furniture tops worth $536,038.12 to defendant Century. The items were either to be used by defendant Century or resold on consignment. Under the terms of the consignment agreement, defendant Century was obligated to pay plaintiff for each item at the earlier of the date that such item was sold or incorporated into a finished product and 36 months from the date such item was delivered to defendant Century. Defendant Samuel Mannino, as owner of 100 percent of defendant Century’s stock, signed a personal guarantee, ensuring defendant Century’s performance of the consignment agreement. In July 2003, defendant Samuel Mannino sold defendant Century to two individuals, Deborah Noyes and Chance Conner.

On March 4, 2005, plaintiff filed a complaint against defendants, alleging it did not receive payment from defendant Century for the products delivered in October 2001. On June 23, 2005, defendant Samuel Mannino filed an answer, new matter, and counterclaims for breach of contract, breach of warranty, and breach of duty of good faith and fair dealing. Due to defendant Century’s failure to defend against plaintiff’s complaint, on August 8,2005, default judgment was entered against defendant Century in favor of plaintiff.

On February 15, 2007, plaintiff filed the motion for summary judgment against defendant Samuel Mannino now before this court. Oral argument on plaintiff’s motion was held on April 4, 2007.

DISCUSSION

In its motion for summary judgment, plaintiff maintains it is entitled to judgment in its favor on both its complaint and on defendant Samuel Mannino’s counterclaims.

The Pennsylvania Superior Court has explained that summary judgment is appropriate if, “after the completion of discovery relevant to the motion,... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Chris Falcone Inc. v. Insurance Company of the State of Pennsylvania, 907 A.2d 631, 635 (Pa. Super. 2006). “In order to withstand a motion for summary judgment, a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Keystone Aerial Surveys Inc. v. Pennsylvania Property and Casualty Insurance Guaranty Association, 777 A.2d 84, 89 (Pa. Super. 2001) (citing Lititz Mutual Insurance Company v. Steely, 746 A.2d 607, 609 (Pa. Super. 1999)). “Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citing Lititz Mutual, 746 A.2d at 609).

Summary Judgment on Plaintiff’s Complaint

In its motion for summary judgment on the complaint, plaintiff maintains defendant Samuel Mannino is liable for defendant Century’s debt to plaintiff as a matter of law. This court agrees.

As part of the consignment agreement between plaintiff and defendant Century, defendant Samuel Mannino, then owner of 100 percent of defendant Centuiy’s stock, signed a personal guarantee, ensuring “the prompt payment when due or to become due to [plaintiff] under the terms of the consignment agreement.” Consignment agreement, p. 5. Defendant Samuel Mannino later acknowledged that he signed and understood the personal guarantee. Deposition of Samuel Mannino, 1/23/06, p. 34.

The terms of the consignment agreement provided that payment to plaintiff for items shipped would be due at the earliest of the following events:

“(a) The individual furniture top is cut from its original size.

“(b) The individual furniture top is sold to a third party.

“(c) The expiration of 36 months from the date of delivery of each furniture top. This period may be expanded, from time to time, by [plaintiff], by giving written notice to [defendant Century] at least 30 days prior to the expiration of the aforementioned period as the same may be from time to time extended.” Consignment agreement, p. 2.

Despite such provision in the consignment agreement, more than 36 months lapsed from the dates of plaintiff’s deliveries to defendant Century {i.e., October 1, 2001 through October 4, 2001) without plaintiff receiving payment. As a result of such failure to pay on the part of defendant Century (even after plaintiff obtained a judgment against defendant Century in August 2005), plaintiff now seeks enforcement of defendant Samuel Mannino’s personal guarantee, pursuant to which defendant Samuel Mannino “guarantee[d] to [plaintiff], its successors and assigns, the performance by [defendant Century], of all terms on the part of [defendant Century] to be performed under the foregoing consignment agreement, and [defendant Samuel Mannino] guarantee[d] to [plaintiff], its successors and assigns, the prompt payment when due of all sums due or to become due to [plaintiff] under the terms of the consignment agreement.” Id. at 5.

This court determines, based on such language, plaintiff is entitled to summary judgment against defendant Samuel Mannino for the amount owed under the contract {i.e., $536,038.12).

Defendant Samuel Mannino maintains summary judgment is inappropriate in this matter because factual issues remain. First, defendant Samuel Mannino contends there is a dispute as to the quantity of items shipped by plaintiff. Second, defendant Samuel Mannino asserts there is a dispute as to the quality of such items. Finally, defendant Samuel Mannino contends the price of the items is in dispute, as the consignment agreement does not state a definitive price. This court disagrees that these or any other factual issues remain.

Quantity and Price

In Paragraph 7 of its complaint, plaintiff alleged the following: “[o]n or about October 1, 2001 through October 4, 2001, plaintiff delivered various natural stone products to defendant Century, of the quantity, size[,] description and price set forth in the inventory, a true and correct copy of which is attached hereto, incorporated herein and marked exhibit ‘B’.”

The inventory referenced above and marked as exhibit B to plaintiff’s complaint shows a listing of nearly 200 items, along with their sizes, quantities, and costs (including freight/duty).

Defendant Samuel Mannino, in his answer, replied as follows to paragraph 7 of plaintiff’s complaint: “Admitted. By way of further answer, the stone products delivered were of inferior quality and not suitable for the use in furniture construction.” Defendant Samuel Mannino admitted the inventory attached to plaintiff’s complaint accurately reflects the quantities and prices of the items plaintiff delivered to defendant Century between October 1, 2001 and October 4, 2001. This court, therefore, determines there is no genuine issue remaining as to either the quantity or price of the items.

Quality

As per the terms of the consignment agreement, defendant was given the option of “returning to [plaintiff] for full credit any furniture tops F.O.B. [defendant Century’s] place of business Penn Furnace, Pa.” so long as none of the following have occurred: (1) the furniture top is cut from its original size, (2) the furniture top is sold to a third party, or (3) 36 months have lapsed since the date of delivery. Consignment agreement, p. 2. Despite this option to return any unsatisfactory items within the above-referenced time frames, defendant Century did not reject nor did it return any of the items to plaintiff. Moreover, defendant Samuel Mannino admitted at his deposition that several months after he sold defendant Century to Mr. Conner and Ms. Noyes, the remaining items from plaintiff’s delivery were removed from his residence. Deposition of Samuel Mannino, 1/23/06, pp. 52-53. Defendant Samuel Mannino also admitted that he does not know where these items are presently located. Id. at 52.

This court determines defendant Samuel Mannino has not produced evidence which demonstrates that a genuine issue remains as to the quality of the items. Defendant Century did not reject or return any of the allegedly unsatisfactory items, despite its negotiated right to do so. Moreover, after selling defendant Century, defendant Samuel Mannino displaced the remaining items, making it impossible for him to now dispute the items’ quality. This court, therefore, determines no genuine issue remains as to the quality of the items.

Summary Judgment on Defendant Mannino’s Counterclaims.

In its motion for summary judgment on defendant Mannino’s counterclaims, plaintiff maintains defendant Samuel Mannino lacks standing to pursue his counterclaims for breach of contract, breach of warranty, and breach of duty of good faith and fair dealing. This court agrees.

In Limbach Company LLC v. City of Philadelphia, 905 A.2d 567, 573 (Pa. Commw. 2006), the Pennsylvania Commonwealth Court succinctly explained the law regarding third-party standing in contract claims:

“Traditionally, in order for a third party to have standing to recover on a contract, both contracting parties must have expressed the intention in the contract to create a third party beneficiary. Scarpitti v. Weborg, 609 A.2d 147, 149 (Pa. 1992) (citing Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950)). In 1983, our Supreme Court carved out an exception to this strict rule in Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), by adopting section 302 of the Restatement (Second) of Contracts.

“Under the Restatement, a third party can claim rights under a contract, even if not stated expressly, if it is consonant with the intention of the contracting parties. Section 302 states as follows:

“Intended and incidental beneficiaries.

“(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intentions of the parties and either

“(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or

“(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

“(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

“Restatement (Second) of Contracts §302 (1979).” (emphasis in original)

In the present case, defendant Samuel Mannino is not a party to the consignment agreement between plaintiff and defendant Century. Consequently, in order for defendant Samuel Mannino to pursue his counterclaims against plaintiff, he must have standing as a third-party beneficiary of the contract. This court determines, even in light of the more expansive approach to third-party standing adopted in Guy, defendant Samuel Mannino was not an intended beneficiary under section 302 of the Restatement (Second). The performance of the promise did not satisfy an obligation of defendant Century to pay money to defendant Samuel Mannino, nor do the circumstances indicate defendant Century intended to give defendant Samuel Mannino the benefit of the promised performance. Accordingly, defendant Samuel Mannino does not have third-party standing to recover on the consignment agreement between plaintiff and defendant Century, and plaintiff is entitled to summary judgment in its favor on defendant Samuel Mannino’s counterclaims.

ORDER

And now, April 17, 2007, plaintiff’s motion for summary judgment against defendant Samuel Mannino in the amount of $536,038.12 is granted.

Furthermore, plaintiff’s motion for summary judgment on defendant Mannino’s counterclaims is granted.


author: ABRAMSON, J,

text:
    AmerisourceBergen Drug Corp. v. CuraScript Inc.

      Howard D. Sober, for plaintiff.

      Dwayne F. Stanley, for defendant CuraScript.

      Robert V. Dellosa, for defendant Priority Health Care.
    April 17, 2007
   ABRAMSON, J,

The focus of this appeal is whether a deposition may be reopened and a deponent questioned as to his private off-the-record conversation with counsel after he changed his testimony.

On February 19,2007, counsel for CuraScript Inc. and Priority Health Care Corporation (CuraScript) deposed Alan Clock, former vice president of Alternative Care at AmerisourceBergen. Mr. Clock was allegedly involved in negotiations of an agreement between the parties herein. During his deposition, CuraScript’s counsel questioned Mr. Clock regarding his understanding of the liquidated damages provision contained within the CuraScript agreement. In response, Mr. Clock testified that the provision would serve to compensate AmerisourceBergen for any damages incurred in the past, present and future as it related to the deal. During a CuraScript counsel’s question, three breaks occurred. Once CuraScript’s counsel completed his questioning, AmerisourceBergen’s counsel’s first question to the deponent was as follows:

“By Mr. Garcia:

“Q. Mr. — Mr. Clock I would just like to clarify a couple of points regarding your testimony. I think in one area you may have misspoken. Would you turn to exhibit LaBrecque 4 please?”

In response, Mr. Clock testified as follows:

“By Mr. Garcia:

“Q. And specifically the second terminated the contract is the termination amount specified in paragraph 7?

“A. No.

“Q. Uhm, by no do you mean that’s not your understanding?

“A. That’s not my understanding. That this would be the only, uhm — that this would be the only damages if, uhm, CuraScript terminated the contract.

“Q. If you look at the second sentence under paragraph 7 where it says in the last clause, ‘in addition to any other amounts that may be owned [sic] to AmerisourceBergen, as of the termination date,’ did you have an understanding of what types of other additional amounts that might be referring to?

“A. It — it could be a varieties of things. It could be, uhm, past due invoice, late fees. I mean it could be a variety of things that are — in the — in this agreement and including the — you know any other things as it relates to, uhm — anything else in this — this agreement.

“Q. Well, for example, if CuraScript did not comply with the 3.5 percent ProGenrics requirement—

“Mr. Monafo: Objection. Leading.

“Mr. Garcia: Let me finish the question yet, how do you know.

“Mr. Monafo: You already led him, I already violated the rules so the objection is valid. You go right ahead and finish your leading question.

“By Mr. Garcia:

“Q. For example if CuraScript violated the 3.5 percent requirement, is that something that you would interpret to be within the type of items that AmeriSource could recover for notwithstanding this termination payment?

“By Mr. Monafo: Objection. Leading.

“Mr. Garcia: It’s yes-or-no question.

“Mr. Monafo: It’s also a leading yes-or-no question.

“The witness: I — presume that — that that would be something that they, uhm — that AmerisourceBergen would be able to — to recover as well, as I read this.

“By Mr. Garcia:

“Q: Do you understand this provision to be precluding recovery of profits lost into the future after the termination?

“A. I — I don’t know if it says that or not in this, one way or the other. I mean I’m not a legal expert.

“Q. So in your opinion or do you have an opinion one way or the other as to whether or not AmeriSource would be entitled to recover lost profits for the income it wouldn’t have received during the rest of the term because of the termination?

“Mr. Monafo: Objection. Asked and answered. He already answered it, but go ahead.

“The witness: I don’t really have an opinion one way or the other.

“Mr. Garcia: Okay. That’s all I have, that clarifies it. Thank you.” (Cite)

This testimony was different than that testimony rendered in response to questions posed by CuraScript’s counsel. After AmerisourseBergen’s counsel completed his questioning, CuraScript’s counsel questioned Mr. Clock as follows:

“Mr. Monafo: Thank you. I have a question now based on that clarification.

“Examination

“Mr. Monafo:

“Q. Uhm, Mr. Clock, uhm, at any time during the breaks of this deposition, did you discuss this provision Mr. Garcia just asked you about, any other amounts that may be owed?

“Mr. Garcia:

“Objection to any discussions. That would be privileged attorney/client communications.

“Mr. Monafo: Okay. Are you instructing him not to answer?

“Mr. Garcia: Of course.

. “Mr. Monafo: Are you accepting your counsel’s advice?

“The witness: Yes. (Direction not to answer.)

“Mr. Monafo:

“Q. We did take breaks in the — throughout the deposition, did we not?

“A. Yes.

“Q. And you had a chance to visit with your counsel during those breaks?

“A. Yes.

“Mr. Monafo: Rudy, I think if you — if you discussed it after I asked him about it in the — in the — during the duration of the deposition that it’s not — it’s not covered by the privilege. That would be my position.

“Mr. Garcia: Well, I will — you’re free to state your position. I don’t agree with it, but it doesn’t matter. Any conversations we had are covered by the privilege.” (Deposition of Mr. Clock pp. 208-16.)

CuraScript filed a discovery motion specifically addressing whether the meaning of the liquidated damage provision was discussed during the private off-the-record conversation between counsel for AmerisourceBergen and Mr. Clock. On March 13, 2007, this court entered an order granting a motion to compel the reopening of a deposition to respond to questions regarding the witness’s private conversations with counsel for AmerisourceBergen after the start of, but prior to, the completion of the deposition. This appeal followed. AmerisourceBergen also filed an emergency motion to suspend the case pending appeal. The court denied the motion and stated, “The court also instructed, and the attorneys understood, that that which was to be disclosed were conversations which might have caused the witness to change, modify or alter testimony on a subject already discussed, not all privileged communications.” CuraScript filed an emergency application for stay or suspension pending appeal with the Superior Court which was granted.

“Generally, on review of an order concerning discovery, an appellate court applies an abuse of discretion standard.” To the extent that the question involves a pure issue of law, the scope and standard of review are plenary.

Our analysis begins with Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), an opinion by Federal District Judge Robert S. Gawthrop III, which established specific rules of conduct for counsel at a discovery deposition due to discovery abuses he found to commonly occur within his district. One of the rules of conduct specifically prohibited counsel and their witness-clients from engaging in private, off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege. The restrictions were ordered when the defendant’s counsel attempted to ask the deponent about a document which had been handed to him, and the deponent’s counsel insisted on reviewing the document with the deponent before he answered any questions about it. A telephone call to the judge resulted in the termination of the deposition in order that the matter be resolved by the court. The court articulated its rationale for the restrictions as follows:

“The underlying purpose of the deposition is to find out what a witness saw, heard, or did — what the witness thinks. A deposition is meant to be a question-and-answer conversation between the deposing lawyer and witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record. It is the witness — not the lawyer — who is the witness. As an advocate, the lawyer is free to frame those facts in a manner favorable to the client, and also to make favorable arguments of law. But the lawyer is not entitled to be creative with the facts.” Id. at 528.

As it pertains to the question of whether a court may restrict attorney-client conferences during a deposition, the reaction to Hall’s absolute prohibition varies greatly. Several states have adopted language from Hall in their respective rules of civil procedure that prohibit to varying degrees conferences between lawyers and their clients once a deposition has begun. Numerous judges from the Eastern District of Pennsylvania and other jurisdictions adopted the Hall guidelines.

Other courts refuse to implement any of the Hall guidelines. In Acri v. Golden Triangle Management Ac ceptance Co., Judge R. Stanton Wettick Jr. chose not to follow the Hall guidelines in his case, finding that the adversarial application of the Hall rules could have unintended consequences on the deponent such as the unethical deposition interrogator using the rules against the witness. Despite Judge Wettick’s choice not to follow Hall, he concluded that if he thought there were a large number of lawyers trying to thwart the discovery process, he would agree with Judge Gawthrop that courts must develop different approaches.

Other courts have adopted a limited form of Hall to curb deposition misconduct. For instance, restricting attorney-deponent conferences only when documents are shown to the deponent, prohibiting attorney-deponent conferences when initiated by the defending attorney, prohibiting attorney-deponent conferences while a question is pending and prohibiting all attorney-deponent conferences at breaks and overnight recesses when the deposition is held on consecutive days.

In Yoskowitz v. Yazdanfar, the Pennsylvania Superior Court was given an opportunity to address the issue of attorney-witness conferences during a break in the direct examination of the witness at trial. In that case, the Superior Court held that a trial court erred in ruling that an attorney’s private conversation with an expert witness during the witness’ direct examination was criminally contemptuous and sanctionable. In reaching its decision, the Superior Court sought to balance the rights of an attorney to an uninhibited judicial forum that preserves the right to zealous representation, with the right of a trial judge to authoritatively maintain order and integrity within his or her courtroom. The court looked to trial custom which prohibits witnesses from discussing testimony during cross-examination when a recess occurs and the record created by the trial judge’s inquiry into the off-the-record conversation between counsel and the expert. The court found that insufficient evidence existed to demonstrate that the attorney’s conduct was intended to obstruct the proceedings and reversed the finding of contempt.

Unlike the situation in Yoskowitz, the record in the case sub judice demonstrates a reasonable suspicion of bad faith conduct, i.e., witness coaching, sufficient to permit inquiry into any conversation between lawyer and client which might have caused the witness to change his testimony concerning a material issue in the case. Mr. Clock testified during cross-examination as to his understanding of the liquidated damage provision. After a recess, CuraScript’s counsel prefaced his first question with “I think you may have misspoken.” Ordinarily, rehabilitating a witness who may have misspoken does not create an inference that some form of misconduct occurred. Here, however, the circumstances surrounding the rehabilitation, recess and the prompt by CuraScript’s counsel that Mr. Clock misspoke at the very outset of the questioning creates a level of suspicion which merits further inquiry.

Interrogating counsel should be permitted to inquire into why the deponent changed his testimony concerning a material issue in the case, where an attorney has provided what appears to be a cue or prompt to commence the differing recitation. The inquiry is solely limited to the subject matter of the conversation and not the substance. Hence, one could liken the inquiry to a privilege log where the subject matter of the document claimed as privilege is revealed while the substance remains protected. Allowing an inquiry into the subject of the conference does not jeopardize a witness’s right to counsel nor does it suggest that an interrogating counsel has carte blanche to invade the privileged communications between counsel and his client. On the contrary, the inquiry can only be made where as here the record demonstrates a reasonable suspicion that counsel or a deponent is abusing the deposition process.

Interrogating counsel has the right to the deponent’s answers, not an attorney’s answers. Permitting such questioning could moot the question altogether. If the witness responds that no conversation occurred about the subject matter in question then the issue of coaching is moot. In the alternative, if the witness responds that a conversation did occur about the subject matter in question then the interrogating attorney should be permitted to ask why the witness changed his testimony. In such instance the response could be that the lawyer advised the client to tell the truth or it could be that the lawyer instructed the deponent on how to answer. This court believes that instructing a witness how to answer a question does not fall within the narrow finite realm of communications protected by the attorney-client privilege or comments or legal advice protected by the work product privilege. These privileges are not absolute and may be overcome depending upon the circumstances surrounding the communications.

Hence, defendant should be permitted to reopen the deposition to ascertain whether any coaching occurred. Depositions are the factual battleground where the vast majority of litigation takes place. Thus, it is particularly important that this discovery device not be abused. Even though the deposition may be taking place far from a real courtroom, the testimony may be used at trial if the witness becomes unavailable as well as motion practice where deposition testimony has evidentiary value.

Furthermore, witness coaching can significantly interfere with the deposing attorney’s access to truthful testimony from the witness. Engaging in witness coaching can obstruct the opponent’s access to evidence. Professional Rule of Conduct 3.4, Fairness to Opposing Party and Counsel, states that a “lawyer shall not obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or assert another person to do any such act.” Additionally, Rule 3.4 states that “a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case. Additionally, witness coaching potentially may violate Rule of Professional Conduct 3.3, Candor Toward a Tribunal.

To summarize, some jurisdictions prevent witness coaching by disallowing attorney witness conferences during depositions altogether. In these jurisdictions, coaching is impermissible and if the “no conference” rule is violated, discovery regarding the extent and nature of coaching may take place. In Pennsylvania, we do not have a “no conference” rule. Nevertheless, a means of discovering coaching must exist or it and its mischief will be released undetected (or if detected, left only to arguments about inferences of coaching) and taint or obstruct the administration of justice.

Based on the foregoing, this court’s order dated March 13, 2007, should be affirmed.

      . McNeil v. Jordan, 586 Pa. 413, 426, 894 A.2d 1260, 1268 (2006).

        . Id.

      . The opinion and order in Hall were never adopted as a standing order in the Eastern District of Pennsylvania but were used as guidelines by many judges within and without the district.

      . The other rules included, inter alia, counsel may not instruct the witness to ask deposing counsel rather than the witness’s own counsel for clarifications or explanations, counsel may not object except to those questions asserting a privilege and enforcing a limitation on evidence directed by the court, counsel shall not direct or request that a witness not answer a question unless counsel has objected to the question on the ground that the answer is protected by privilege or a limitation on evidence directed by the court, counsel shall not make an objection which might suggest an answer to a witness and deposing counsel shall provide to the witness’s counsel a copy of all documents shown to the witness during a deposition.

      . See Alaska R.C.P. 30(d)(1) (“Continual and unwarranted off-the-record conferences between the deponent and counsel following the propounding of questions and prior to the answer or at any time during the deposition are prohibited.”); Del. Super. Ct. R.C.P. 30(D)(1) (“From the commencement until the conclusion of a deposition, including any recesses or continuances thereof of less than five calendar days, the attomey(s) for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order or suggest to the deponent the manner in which any question should be answered); N.J. Ct. R. 4:14-3(Q (“Once the deponent has been sworn, there shall be no communication between the deponent and counsel during the course of the deposition while testimony is being taken except with regard to the assertion of a claim of privilege, a right of confidentiality or a limitation pursuant to a previously entered court order.); S.C. R.C.P. 30(j)(5)-(6) (“(5) Counsel and a witness shall not engage in private, off-the-record conferences during depositions or during breaks or recesses regarding the substance of the testimony at the deposition, except for the purpose of deciding whether to assert a privilege or to make an objection or to move for a protective order. (6) Any conferences which occur pursuant to, or in violation of, section (5) of this rule are proper subjects for inquiry by deposing counsel to ascertain whether there has been any witness coaching and, if so, to what extent and nature.).

      . Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 59 (E.D. Pa. 1993); Frazier v. SEPTA, 161 F.R.D. 309, 315 (E.D. Pa. 1995); O’Brein v. Amtrak, 163 F.R.D. 232 (E.D. Pa. 1995); Plaisted v. Gesinger Medical Center, 210 F.R.D. 527 (M.D. Pa. 2002).

      . 142 P.L.J. 225 (1994).

      . See e.g., In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614 (D.Nev. 1998); Prudential Ins. Co. of Am. v. Nelson, 11 F. Supp.2d 572 (D. N.J. 1998) (articulating standards for deposition conduct); Damaj v. Farmers Ins. Co., 164 F.R.D. 559 (N.D. Okla. 1995) (citing Hall in setting down guidelines, although refusing to impose the full range of Hall restrictions). McKinley Insfuser Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001).

      . Collins v. International Dairy Queen Inc., 1998 U.S. Dist. Lexis 8254 (M.D. Ga. 1998).

      . Okoumou v. Safe Horizon, 2004 U.S. Dist. Lexis 19120 (S.D.N.Y. 2004).

      . In re Stratosphere Corp. Sec. Litig., supra; McKinley Insfuser Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001).

      . United States v. Phillip Morris Inc., 212 F.R.D. 418, 420 (D.D.C. 2002).

      . 900 A.2d 900 (Pa. Super. 2006).