author: SCHWARTZMAN, Member,

text:
    In re Anonymous No. 11 D.B. 82

      Disciplinary Board Docket no. 11 D.B. 82.
    April 10, 1987
   SCHWARTZMAN, Member,

A petition for discipline against [ ], Esq.,- (respondent) was filed on February 25, 1982.

The matter was assigned to Hearing Committee [ ] after which 12 hearings, for the presentation of evidence on the merits, were held from June 3, 1982 until February 21, 1984. A total of 1,600 pages of testimony were taken. •

On October 31, 1985, the hearing committee found respondent’s conduct evidenced violations of the Disciplinary Rules of the Code of Professional Responsibility.

Petitioner and respondent were given the opportunity for additional hearings at which time evidence bearing on the type of discipline to be recommended might be presented. The committee met in further hearing for that purpose on December 3, 1985, at which time an additional 190 pages of testimony were taken.

SUMMARY OF THE CHARGES

Charge I

Respondent was charged with having received three fees from clients of the law firm of which he was a partner, to wit, the [A]/[B] fee in the sum of $5,000, the [C]/[A] fee in the sum of $1,250 and the [D] fee in the sum of $434.75, and with thereafter having failed to deposit and maintain the funds in an account maintained for the funds of the law firm and then with having converted the said funds to his own uses and purposes.

Charge II

Respondent was charged with having engaged in a course of misrepresentation and deceit in an effort to disguise his receipt and conversion of the [A]/[B] $5,000 fee.

Charge III

Respondent was charged with receipt of the sum of $1,701.33, a fee which the law firm claimed for representation and legal services rendered in the [E] workmen’s compensation case, and with thereafter having failed to maintain those funds in an account maintained for the funds of the law firm and then with having engaged in acts of misrepresentation and deceit and with respect thereto after converting said funds to his own use.

Charge IV

Respondent was charged with having received from the [Fs], a firm client for whom respondent did a great deal of work, the sum of $50,000, paid for legal services rendered and then of having failed to deposit the said $50,000 in the firm account and/or to account to the firm for the monies received.

Charge V

Respondent was charged with having received and retained for his personal use the sum of $500, which was part of a $3,000 fee the firm claimed for services rendered in respondent’s having managed, on behalf of the law firm, a personal injury action on behalf of [G].

For each of the alleged violations, respondent has been charged with breaching the following disciplinary rules of the Code of Professional Responsibility:

(a) D.R. 1-102(A)(3): A lawyer shall not engage in illegal conduct involving moral turpitude;

(b) D.R. 1-102(A)(4): A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(c) D.R. 1-102(A)(5): A lawyer shall not engage in conduct that is prejudicial to the administration of justice; and,

(d) D.R. 1-102(A)(6): A lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law.

FINDINGS OF FACT

Charges I and II

(1) In or about April 1972, respondent became an associate of the law firm of [H], [I], and [J]. On November 6, 1975, a partnership agreement was entered into by and between [H], Esq., [I], Esq., [J], Esq., [K], Esq., [L], Esq., [M], Esq., [N], Esq., [O], Esq., and respondent.

(2) Under the terms of the aforementioned partnership agreement no partner was permitted to personally retain the proceeds of any fees which were paid by clients of the firm, and all fees were to be provided to the firm, following which each partner was paid his proportionate share of the profits of the firm, under the terms of the partnership agreement.

(3) On or about October 9, 1975, [Mrs.] and [Mr.] [A] were injured when the automobile in which they were riding collided with a vehicle that was being operated by one [P]. At the time of said accident the [A’s] vehicle was insured by the [Q] Insurance Company, and [P’s] vehicle was insured by [R] Insurance Association.

(4) As a result of the aforementioned accident [Mr. A] was arrested and charged with involuntary manslaughter, and pursuant thereto he consulted [S], Esq.

(5) In or about the early part of 1976 [S] referred the [A’s] to respondent and the firm, and pursuant thereto respondent advised [Mr. A] that the firm’s legal fee for representation on the criminal charges would be $2,000.

(6) On or about May 17, 1976, [A’s] daughter, [B], paid respondent $750 towards his quoted fee of $2,000, for the firm’s representation of her father on the criminal charges, which respondent turned over to the law firm’s bookkeeper and office manager [T]. On or about May 25, 1976, [Mr. A] was found “not guilty.”

(7) On or about June 4, 1976, [B] executed a contingent fee agreement and retained the law firm to represent her as guardian of the estate of her mother, [Mrs. A], an alleged incompetent, to pursue a claim against [P] and [Mr. A] as a result of the injuries [Mrs. A] sustained in the aforementioned automobile accident.

(8) By a bill dated June 8, 1976, [Mr. A] was notified that he still owed the law firm $1,429.90 for representation on the criminal matter.

(9) In or about the end of 1979 respondent negotiated a settlement in this lawsuit on [B’s] behalf, whereby [Q] agreed to pay [B] $100,000 and [R] agreed to pay her $5,000. By an order dated January 7, 1980, this settlement was approved by the court, along with a counsel fee of $34,810.45 (representing one-third of the proceeds of said settlement).

(10) By letters dated January 9, 1980, respondent requested that the attorneys for [Q] and [R] provide him With the appropriate checks in satisfaction of this settlement, and that the checks be rñade payment to [B] and him as her attorney.

(11) On or about January 16, 1980, [U], Esq! forwarded to respondent [R’s] share of the proceeds of settlement, in the amount of $5,000 by way of a check drawn as respondent had requested. Upon receipt of said check on or about February 2, 1980, respondent forwarded it to [B] for her endorsement, along with [Q’s] check in the amount of $100,000, which had also been provided to respondent.

(12) Upon her receipt of the aforementioned checks [B] endorsed them, as respondent had requested, and returned them directly to respondent.

(13) Upon his receipt of the endorsed [Q] and [R] checks on or about February 23, 1980, respondent endorsed and delivered the [Q] check to [T] along with the following written instructions as to how the proceeds of the [Q] check should be disbursed:

[B], Guardian of [Mrs. A], $69,725.43 Incompetent
[S], Esq. 11,603.48
The Law Firm Costs 464.12
The Law Firm Fee 18,206.96

(14) Respondent directed [T] to distribute to the firm a fee which was $5,000 less than was due the law firm under the terms of the contingent fee agreement which [B] had exécuted.

(15) On or about February 26, 1980, respondent sent [B], inter alia, a bill for $1,250, which represented the remaining portion of the fee which was due and owing the firm as a result of respondent’s representation of [Mr. A] on the criminal charges.

(16) In or about the latter part of February 1980 one of respondent’s partners, [K], discovered that respondent had received both the [Q] and [R] checks, and that they had been endorsed by [B], but that thereafter only the [Q] check had been turned over to [T].

(17) By a check dated March 28, 1980, [B] forwarded the remaining portion of the fee, in the amount of $1,250.

(18) On June 5, 1980, it earlier having been discovered that the [R] check had been received, respondent’s partners decided to confront him with what they knew about the missing $5,000.

(19) During the course of the aforementioned June 5, 1980 confrontation, respondent admitted to his partners that he was consciously and willfully withholding fees due and owing the law firm, as a result of his previous decision to leave the law firm, in order to build a fund to serve as capital or money for opening his office, and as a fund from which to negotiate the terms of a severance of his relationship with the law firm.

(20) On or about June 16, 1980, respondent provided the firm with $1,684.80, a portion of which represented the $1,250 fee due and owing the firm from [Mr. A] on his criminal matter.

(21) On or about June 17, 1980, respondent provided the firm with an additional $5,000, which represented the remaining portion of fee due and owing the law firm under the terms of its agreement with [B] in its representation of her as the guardian of her mother.

(22) In or about October, 1978, [D] retained the firm to prepare an estate plan for him. The legal services on this matter were performed on behalf of the firm by respondent.

(23) Following the completion of this legal matter the firm issued a bill to [D] dated January 8,1980, for services rendered, in the amount of $434.75. Respondent placed, or caused to be placed upon this bill the notation “please make your check payable directly to [Respondent], Esq.,” to insure that the fee would be provided directly to him, and not the firm.

(24) On or about January 10, 1980, [D] remitted payment of this bill directly to respondent, by forwarding to him his check in the amount of $434.75, which represented the fee of the firm for services rendered to [D]. Upon receipt of $434.75 respondent failed to advise any firm member of his receipt of these funds, failed to deposit and maintain said $434.75 in an identifiable bank account or an account maintained for the firm’s funds, and failed to provide said $434.75 to the firm.

(25) On or about March 28, 1980, [T] accidentally discovered that the aforementioned bill for services rendered in the amount of $434.75 had been issued to [D], but that there was no law firm record of the bill having been paid.

(26) Thereafter [T] brought to the attention of [M] and several other partners the fact that the aforementioned bill had apparently not been paid, and as a result thereof, and in or about June 1980 [M] telephoned [D’s] wife and inquired as to why the firm’s $434.75 bill for services rendered in estate planning had not been paid. In response thereto she forwarded to the firm an additional $434.75.

(27) Thereafter [D] recalled that he had already paid this bill, so advised [M], who sent to him the firm’s check in the amount of $434.75 on June 16, 1980.

(28) On or about June 16, 1980, respondent provided the firm with $1,684.80, a portion of which represented the $434.75 fee. (See also Finding of Fact 19, supra.)

Charge III

(29) On or about November 15, 1978, [E] was injured while working as an employee of the Pennsylvania Department of [V], following which [E] filed a claim for workmen’s compensation, which was ultimately rejected.

(30) As a result thereof [E] consulted with respondent, and on or about February 6, 1979, [E] executed a contingent fee agreement and power of attorney and retained the law firm as his attorneys to prosecute his claim for workmen’s compensation.

(31) Thereafter various workmen’s compensation hearings were held before referee [W]. By order dated March 12, 1980, referee [W] found that [E] had been totally disabled from November 15, 1978, up to an including June 11, 1979, and that he was entitled to compensation for a period of 29 and two-fifths weeks.

(32) [W] also ordered [V] to reimburse [E] for various costs and expenses, and he directed that: “Counsel fees are to be paid to [H], [I] and [J] in the sum of $1,701.33 out of the compensation awarded to the claimant.”

(33) Pursuant to referee [W’s] order, and by a check dated April 16, 1980, the Commonwealth of Pennsylvania provided respondent with $1,701.33, representing the firm’s legal fee in this matter.

(34) Upon receipt of the firm’s $1,701.33 fee, respondent failed to deposit and maintain said $1,701.33 in an identifiable bank account, or an account maintained for the firm’s funds, failed to advise any member of the firm of his receipt of these funds or to provide said $1,701.33 to the firm.

(35) In or about the end of April 1980, [O] discovered that respondent had received the aforementioned [E] workmen’s compensation check from the commonwealth, which he brought to the attention of various members of the law firm.

(36) Upon being advised by [O] that the [E] check had been received by respondent but that it had not gone through his law firm’s bookkeeping system [J] determined that the [E] check had been negotiated by respondent.

(37) [J] thereafter brought to his other partner’s attention what he had learned regarding the [E] workmen’s compensation check and the fact that respondent had negotiated it, but that the funds had not been turned over to the law firm. Upon learning of this respondent’s other partners decided to confront respondent on June 5, 1980, with the fact that the $1,701.33 was missing, and with what they had learned.

(38) On or about June 5, 1980, various members of the firm confronted respondent regarding his apparent misappropriation of the firm’s $1,701.33 fee, and demand was made upon respondent for these funds. Respondent engaged in a course of misrepresentation in an effort to disguise his previous conversion of these funds.

(39) Following the aforementioned June 5, 1980 meeting, respondent contacted [X], Esq., in furtherance of the misrepresentation that he was attempting to perpetrate upon the firm, and he asked [X] if he would do him a favor. He falsely advised [X] that his (respondent’s) secretary, [Y] was being accused by the law firm of misappropriating various checks, one of which involved the $1,700 fee from a workmen’s compensation case on behalf of [E].

(40) Respondent advised [X] further that he had seen the check, that it had been cashed, and that it looked like [Y’s] signature on the back, and he asked [X] if he would be willing to issue a check in the amount of $1,000 to the law firm.

(41) All of the aforementioned statements by respondent were false, since at no time had any member of the law firm indicated that they suspected that [Y] had misappropriated the $1,701.33 or stolen the [E] check, and in light of the fact that respondent had previously converted the entire $1,701.33 to his own uses and purposes, and respondent elicited [X’s] assistance in furtherance of his attempts to disguise his previous conversion of the firm’s funds.

(42) [X] agreed to assist respondent in his scheme, and pursuant thereto he issued a check payable to the law firm in the amount of $1,000, which he mailed to respondent that day with a cover letter wherein he stated, inter alia, “Enclosed please find a check for $1,000 which represents the firm’s portion of the $1,700 fee on a workmen’s compensation case on behalf of [E].”

(43) [X] had never in fact represented [E] on this workmen’s compensation matter, he had never heard of [E] up to that point, and he was not due a $700 fee regarding said matter.

(44) Following his receipt of [X’s] letter and the check which he had requested of [X], respondent made a number of false statements to the members of his firm with respect to [X’s] alleged involvement in the [E] case and his having referred the case to respondent.

Charge IV

(45) Prior to respondent's joining the firm, the firm was retained by and represented [ ] and [ ] [F], [F] Brothers Leasing Inc., and affiliated corporations and businesses of the [Fs’] regarding various legal matters in which the [Fs] were involved.

(46) In or about 1973 the firm assigned most of the [Fs’] legal matters to respondent for his consideration, prior to which the [F] matters were handled by [H], Esq. who retired from the firm on December 31, 1975, and died on May 29, 1976.

(47) Between 1973 and June 4, 1979, the [Fs] were issued bills for services rendered by the law firm, for legal work performed by respondent and other members of the firm, on legal matters which included, inter alia, the [Z] Mall matter and the [AA] Bank matter.

(48) On or about June 4, 1979, the [Fs] prepared two checks — one payable to “[H], [I] & [J]” in the amount of $67,262 and the second payable to respondent in the amount of $40,000.

(49) The $67,262 check was provided to the firm.

(50) Respondent retained the $40,000 payable to him treating it as a retainer which under the terms of the partnership agreement the partners, to whom retainers were paid, were entitled or permitted to retain individually, as opposed to fees received for services rendered which became and were the property of the firm.

Charge V

(51) On or about July 9, 1976, [G] was injured when he was struck by an automobile that was owned and being operated by [BB].

(52) On or about August 4, 1976, [G] consulted and retained the law firm to represent him in taking any action necessary to obtain compensation for him for the injuries he sustained as a result of said accident, and pursuant thereto [G] executed a contingent fee agreement which provided, inter alia, that the law firm would receive a legal fee of 25 percent, 30 percent or 33 and one-third percent of the proceeds of recovery.

(53) Respondent was the member of the law firm who represented [G] in this matter, and pursuant thereto he negotiated a $10,000 settlement on [G’s] behalf.

(54) In accordance with the terms of settlement, and in or about November 1977 [BB’s] insurance carrier, the [CC] Insurance Company forwarded to respondent its check for $10,000, which was endorsed by [G] at respondent’s request, while he was in respondent’s office on or about November 25,1977.

(55) Under the terms of the contingent fee agreement which [G] executed the firm was entitled to a fee of $3,000. Respondent prepared, or caused to be prepared a distribution sheet which reflected a firm fee of $2,500, and respondent directed [T] to prepare two checks payable to [G] on November 25, 1977 — one in the amount of $6,882.90, and one in the amount of $500.

(56) Following the preparation of the aforementioned checks respondent signed them and on or about November 25, 1977, respondent provided the $6,882.90 check to [G], but he advised [G] that he ([G]) owed the law firm an additional $500 fee, with a request that [G] cash the $500 check and return those funds to him (respondent) which he did on that same day.

DISCUSSION

In early 1980 respondent made a tentative decision to withdraw from the law firm and engage in practice as a sole proprietor after eight years of conscientious devotion and work as an associate and a partner. Respondent’s devotion to the profession and his skill are unquestioned. His abilities resulted in an unprecedented and rapid rise to the status of partner in the firm, and finally a senior partner in 1977. His contributions to community affairs are extensive.

During his years with the firm, [respondent] generated substantial income for the firm, always bringing in more than he withdrew. This reached an apex in 1979, when his efforts produced approximately $150,000 in fees. He received approximately $55,000 from the firm. As a result of this disparity, one of the partners, [M], recognized respondent’s inadequate compensation and offered respondent, in December 1979, his share of a 10-percent holdback which the firm annually retained to reward deserving individuals. Other members of the firm were antagonistic to such a proposal and insisted on an equal share of this reserve even though they had produced far less income for the firm than [respondent].

Respondent’s competence was also recognized by the fact that he was personally assigned the responsibility for handling the affairs of the firm’s most significant clients, as well as the most important civil litigation.

In order to enhance his bargaining position during the anticipated negotiations which would accompany his separation from the firm, respondent directed his secretary to begin withholding certain checks as they arrived until approximately $8,000 was accumulated. Respondent thought this amount would be the approximate sum due to him as the combined total of his partnership draw and capital accounts at the time of his separation. The firm’s bookkeeper ultimately concluded that respondent would have had $6,300 in firm accounts to which he would have been entitled upon separation. This is not a substantial deviation from respondent’s own estimate of $8,000 as the sums due to him.

The decision to leave the firm having been established in his mind, respondent directed his secretary to begin withholding various checks from the firm’s bookkeeper until the $8,000 was accumulated, and to turn in to the firm subsequent checks after that plateau was reached. Respondent’s motives may have been ill-advised, to protect his own best interests, but they were not devious, criminal or a violation of the Canons of Ethics.

[Y], respondent’s secretary, explained that in January 1980 respondent called her into his office and told her that events at the December 1979 annual meeting of the partners had solidified his decision to leave the firm.

Respondent had become disillusioned with the manner in which the firm conducted its affairs and rewarded his efforts. He consistently found himself out-voted in his proposals of partnership meetings. It seemed inequitable that some partners should spend valuable firm time on matters for which they received personal reward, rather than devoting that time to matters which benefited the firm as a whole. This, combined with the fact that respondent contributed significantly more to the firm’s profits than he withdrew as his distributive share, added to his disturbance. It bothered him that some partners withdrew as much or more as income from the firm even though they produced far less in terms of billable hours and gross income. In addition, respondent had received information which led him to conclude that another partner had personally received stock from a client which had great potential value. The receipt of this valuable stock was not disclosed to the firm.

All of these events contributed to respondent’s direction to his secretary to withhold various checks as they arrived. He never gave her any specific instructions as to which checks should be withheld. He had no idea which checks were in fact being withheld and he kept no list.

An unanticipated series of events later led to three of these checks (the $5,000 [A] settlement check; the $1,250 [A] fee from the criminal action; and the $434.75 [D] check) being inadvertently deposited into respondent’s personal checking account rather than being retained in a binder maintained by his secretary as he had directed.

The circumstances surrounding the partners’ discovery of the deposit of the $5,000 [A] check, and respondent’s attempt to explain, demonstrate the confusion in respondent’s mind as to what actually had transpired. Respondent’s attempts to reconstruct past events, upon being confronted by some of his partners, demonstrate nothing more than normal human confusion intensified by their hostility and their unfounded accusations.

The partners, excluding respondent, held several meetings in May 1980 to discuss the situation. It was decided that [I] and [J] would confront respondent.

It is this background which led up to the confrontation between respondent and the other partners on June 5, 1980.

On June 5, 1980 everyone believed that respondent had cashed the $5,000 check in [DD] and respondent was, therefore, accused of having cashed it there. Respondent replied that he had not been in [DD] and if it was cashed there, his signature was a forgery. As soon as respondent was shown the check, he admitted that it was his signature.

[Respondent] testified that he knew there had to be an explanation for the $5,000 check because he had never been in [DD]. He just did not know what it was although he freely admitted to the parties that he had been having his secretary withhold certain checks!

At this June 5, 1980 confrontation, respondent was also asked about the $1,700 [E] check. Unlike the $5,000 [A]/[B] check, which totally befuddled respondent as to its whereabouts, he felt he could explain the whereabouts of that check. He informed the partners that the [E] check was at home in his briefcase. That was where he said he last recalled seeing it. Respondent said he was totally surprised when he could not locate the check in his briefcase and he therefore assumed that it must be in a locked desk drawer, to which only his wife had a key.

Immediately after the confrontation with the other partners on June 5, 1980, respondent called his secretary into his office and spoke with her. As soon as she left respondent’s office, [N] spoke to her and she informed [N] respondent had accused her of losing a check. The secretary told [N] she was going to hunt for it but she suspected it was respondent who had himself lost it.

[Y] left the office terribly upset. She went home and cried, telephoned her fiance, and went with him on a trip to [EE]. She remained unavailable for any communication from Thursday, June 5, 1980, until Monday, June 9, 1980.

Her absence caused respondent to come up with an explanation that is difficult for this board to fathom. He said he became convinced that the firm suspected his secretary of having stolen the checks, perhaps in complicity with her fiance, because she had been having personal problems of a financial nature for several years. He further explained that since [Y] had gone into seclusion and was unavailable to explain her lack of participation in the disappearance of the checks, respondent believed that the firm suspected her since she had apparently been sent home by [N]. He further stated that additional factors such as she had access to the checks, and she had afiance who was an over-the-road truck driver who could have cashed the $5,000 check in [DD], further convinced him of her possible complicity.

Although the partners had both checks, they only showed him a copy of the $5,000 check. They did not show him the $1,700 [E] check. He testified that he somehow concluded that [Y] and her boyfriend were involved.

Respondent explained his thinking as follows:

He knew that his secretary had been holding back checks. He admitted this to the firm during the June 5, 1980 confrontation. He had no idea that the $5,000 check was one of the checks being withheld, but he was informed that the check had been cashed in [DD]. His recollection of the $1,700 check was initially more precise. He knew there had to be an explanation for the $5,000 check because it was clear he had not been in [DD]. When he was unable to locate the $1,700 [E] check in his briefcase, he first assumed it likely that it had also been cashed in [DD]. Respondent knew that his secretary had access to the checks and had a boyfriend who traveled as a truck driver. Added to this was the fact that his secretary had apparently been sent home from the office on June 5, 1980, and it appeared that the other partners suspected her of wrongdoing. In addition, [Y] had disappeared and respondent was unable to reach her. This was compounded by respondent’s belief that the $1,700 check had disappeared from his briefcase, where he had last seen it. Although it was ultimately established that respondent had himself cashed the $1,700 check on April 24, 1980, respondent had no recollection of that event and was unaware that such was the situation. All of these events caused respondent to be more concerned for his secretary’s involvement in the disappearance of the checks than for his own personal involvement, which he believed to be capable of explanation because it extended no further than his decision and instructions to his secretary to withhold checks as they arrived.

Respondent said it was this misconception which led respondent to approach [X], Esq. in an attempt to devise a plan to protect his secretary. He was convinced that his secretary had taken both of these 1 checks.

Respondent approached him and informed him that his secretary was being accused of having misappropriated some checks. Respondent explained the basis for this suspicion by explaining that [Y’s] boyfriend, an over-the-road trucker, could be involved. As a result, [X] issued a letter and a check for $1,000, indicating that he had participated in the [E] case, was retaining $700 as his fee, and was forwarding the remaining $1,000 to the firm.

These events apparently transpired over the weekend during the time in which respondent was unable to reach [Y] by telephone. She had left the office on the afternoon of Thursday, June 5, 1980.

Respondent’s decision to involve [X] only concerned the $1,700 [E] check.

Respondent said that he concluded over the weekend that his wife had inadvertently deposited the $5,000 [A]/[B] check and that his secretary had been responsible for the disappearance of the [E] check. He then returned to his office on Monday, June 9, 1980, and informed the other partners of these conclusions.

Respondent was unable to give an immediate explanation of the deposit of the $5,000 check because an examination of his records failed to reveal a $5,000 deposit which he was looking for specifically. His investigation finally revealed a deposit of $6,684.75, which consisted of the $5,000 [A]/[B] check, a $1,250 fee in Commonwealth v. [A], and the $434 [D] fee. This is why it was not apparent upon initial examination. As soon as respondent made this discovery, he wrote a personal check for $1,684.75, which represented a reimbursement to the firm of the fees in Commonwealth v. [A] and [D].

[N] and [M] met with respondent on June 16, 1980, to negotiate the terms of a severance agreement. At that time, [T] had received the $1,684.25 check from [respondent] as repayment of the money in Commonwealth v. [A] and [D], Up to that point, the firm had no knowledge of these fees. [Respondent] explained that the money had been inadvertently deposited in his and his wife’s account. The $5,000 fee in [A]/[B] was also paid and included in the severance agreement payment.

The partnership agreement provided for three major methods of terminating a partner’s interest in the partnership:

(1) Permanent Withdrawal of the Partner (Article V, section D, page 15). This method of severance provided for a system of debits and credits between the withdrawing partner and the continuing firm. The major feature of this provision was that the withdrawing partner would be entitled to take with him all files and documents pertaining to his clients. This was the procedure followed by respondent and the firm in the negotiation and execution of the June 16, 1980 severance agreement.

(2) Expulsion of a Partner — Expulsion for Cause. A partner could be expelled for causes enumerated in-section G, sub-paragraph 1(a) through 1(f), inclusive. The enumerated clauses include the type of alleged professional misconduct which is the subject of this complaint.

(3) Expulsion Without Determining Any Cause. A partner could be expelled for any reason without determining any cause for expulsion. The effects of expulsion for cause and without determining cause are substantially the same. The most significant effect is that the expelled partner shall not be entitled to any interest in any of the firm assets, clients, files or records.

This document is significant because it substantiates that when the severance agreement was executed on June 16, 1980, the complainants, although they knew all of the facts ■ set forth in charges I, II and III, did not attempt to expel respondent. Instead, they accepted payment of $34,290, which included reimbursement of all of the sums which are the subject of counts I, II and III. Since the complainants filed their complaint only after respondent established a successful practice, it tends to show that the motivation for filing the complaint was economic and vindictive.

The [F] Matter

This board, like the hearing committee, finds that the monies paid to respondent by [ ] and [ ] [F] on behalf of their various business enterprises were retainers and that under the provisions of the partnership agreement, respondent was entitled to keep such retainers without further accounting for or payment over to the firm. Therefore, there can be no violation of the disciplinary rules.

The [G] Matter

Respondent had represented [G] in a personal injury claim which was settled for the sum of $10,000. The firm was entitled to receive a fee of 30 percent of the gross settlement, plus costs.

On November 25, 1977, respondent instructed the bookkeeper to prepare two checks to [G], one for. $6,882.90 as his distributive share of the settlement and one for $500. [G] then cashed the $500 check and returned the cash to the reception desk at the firm, where he was given a written receipt for the sum of $500 by respondent’s secretary. A carbon copy of the receipt was retained in the records of the firm.

Respondent testified that he was the “token Democrat” in the firm and that he, but not the firm, made contributions to Democratic candidates. Respondent testified that he informed [T] exactly what he was doing and that his retention of the $500 was “reimbursement” for political contributions which he had made to Democratic candidates. Respondent explained that he had no intent to convert the funds for an improper purpose.

Finally, and perhaps most compelling, is the fact that when the parties negotiated and executed the severance agreement in this case, they also executed mutual releases. After the settlement of the dispute, this complaint was filed.

The releases mentioned above would fully resolve this matter, were it not for the events that followed the confrontation in the [E] matter. This board, as did the hearing committee, finds that respondent’s explanation stretched one’s imagination to the fuflest degree. It is because of the lack of credibility of the explanation, albeit good intentions, that we cannot recommend dismissal of all the charges.

CONCLUSIONS OF LAW

As to charges I, II, IV and V this board finds no violation of the disciplinary rules.

As to charge III, this board finds that as to the subsequent explanation regarding the [E] check respondent violated the following disciplinary rules:

D.R. 1-102(A)(5);
D.R. 1-102(A)(6).

CONCLUSION

In consideration of the foregoing, the disciplinary board of the Supreme Court determines that a private reprimand should be administered in connection with this case for violation of the disciplinary rules above cited on charge III, pursuant to rule 208(d)(2)(ii). Charges I, II, IV and V should be dismissed.

Respondent shall hear the costs of these proceedings pursuant to rule 208(g)(2) on or before the date fixed for the appearance of respondent before the Disciplinary Board for the administration of the private reprimand.

ORDER

And now, this April 10, 1987, upon consideration of the report and recommendation of Hearing Committee [ ] dated January 20, 1986; it is ordered and decreed that the said [respondent] of [ ] County, be subjected to private reprimand by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in rule 204(a)(5) of the Pennsylvania Rules of Disciplinary Enforcement at the next session of this board in connection with charge III of the petition for discipline. Charges I, II, IV and V are dismissed. Costs are to be paid by respondent.


source: Caselaw Access Project

author: BRUNO, J.,

license: Public Domain

text:
    Martin Estate

      January 16, 1990
    . Avram G. Adler and Carole F. Kafrissen, for appellant

      Oscar S. Schermer, for appellees.
   BRUNO, J.,

This matter is before the court upon an appeal filed by Dorothy Martin to a decree of the register of wills of Philadelphia, dated March 2,1988, revoking the letters of administration granted to her and decreeing that letters of administration be granted to Tilena Sha-reese McFadden or her nominee.

John W. Martin Jr., a resident of Philadelphia County, died on November 5, 1987, in the Veterans Administration Hospital as the result of alleged medical malpractice. On November 20, 1987, Dorothy Martin, the decedent’s mother, sought and was granted letters of administration in his estate. On December 9,1987, Tilena Shareese McFadden filed a petition with the register seeking to have the letters granted to Dorothy Martin revoked and to have letters granted to her or her nominee. In support of her position she alleged that she and her sister, Julia Mae McFadden, are the decedent’s children who were bom out of wedlock and that she, as the decedent’s issue, has the primary right, pursuant to sections 3155(b)(3) and 2103(1) of the PEF Code, to have letters of administration granted to her.

A hearing on Tilena Shareese McFadden’s petition was held before the register on January 13, 1988. On March 2, 1988, the register entered a decree revoking the letters granted to Dorothy Martin and directing that letters be granted to Tilena Shareese McFadden or her nominee. On March 10, letters of administration were granted to Tilena Shareese McFadden and Julia Mae McFadden. This appeal followed.

The register of wills did not file an opinion in support of his decree. However, by revoking the letters granted to Dorothy Martin and directing that letters be granted to Tilena Shareese McFadden or her nominee, the register had to have found that Tilena Shareese McFadden was the decedent’s daughter and therefore had a greater right to letters of administration than Dorothy Martin.

There was some confusion surrounding the procedure to be followed at the hearing held on the appeal. The appellees produced the register’s record, which consists of the register’s decree, decedent’s death certificates, the petitions for letters and the notice of appeal. That record, which is the only record transmitted to this court by the register upon an appeal, does not contain any notes of testimony or any documents offered into evidence before the register at his hearing on the petition for revocation. At the court’s direction, the register’s record was marked “court’s exhibit 1” and was admitted into evidence.

Thereafter, appellees’ counsel attempted to introduce into evidence the notes of testimony and the documentary evidence produced before the register. Appellant’s counsel strenuously objected. Counsel’s objection was taken under advisement and appel-lees’ counsel was instructed to proceed. The appel-lees then testified that the decedent was their father and testified briefly about their relationship with their father. They were then cross-examined by appellant’s counsel. Thereafter, the appellees’ counsel rested. The appellant did not testify and did not offer any evidence in support of her appeal.

The appellant, the party aggrieved by the register’s decree, contends that it is the burden of the appel-lees, the parties who prevailed before the register, to prove, on her appeal, that they are the decedent’s children and therefore have a greater right to letters of administration than she does. In support of her position she relies on section 776 of the PEF Code which provides, in relevant part, that the Orphans’ Court shall, upon an appeal from the register “ . . . hear the testimony de novo unless all parties appearing in the proceeding agree that the case be heard on the testimony taken before the register. ...”

Appellant argues that since she did not agree to have the testimony taken before the register considered by this court, the entire matter is de novo and the appellees have the burden of establishing their paternity to this court. She also argues that the ap-pellees’ attempt to have the testimony and documents produced before the register introduced into evidence at the hearing before this court is improper because the matter is de novo and therefore there is no record which can be properly introduced before this court.

Appellant misapplies the provisions of section 776. That section concerns itself with will contests brought to the Orphans’ Court upon an appeal from a decree of the register of wills either admitting a writing to probate or denying to admit a writing to probate. It has no application to an appeal from the grant of letters of administration.

It is a commonplace that the register of wills acts in a judicial capacity when he grants letters of administration. Schulz Estate, 392 Pa. 32, 139 A.2d 563 (1956). When an appeal is taken from the register’s grant of letters of administration, the authority of the Orphans’ Courtis limited to a review of his discretion as that of an inferior judicial officer. Phillip’s Estate, 293 Pa. 351, 143 Atl. 9 (1928).

It is apparent, therefore, that this matter is not to be tried de novo. The burden is not upon the appellees to prove their paternity; rather, the burden is upon the appellant to show an abuse of discretion on the part of the register when he revoked her letters of administration and directed that letters be granted to appellees.

Oddly, appellant did not attack the register’s finding of appellees’ paternity as not being supported by the evidence before him. Rather, she contends that the register abused his discretion in permitting Tilena Shareese McFadden to present a petition for the revocation of appellant’s letters because Tilena Shareese McFadden had no standing to request letters of administration. It is apparently the appellant’s contention that Tilena Shareese McFadden had to have a prior court determination of paternity before she had standing to appear before the register and request that he revoke the letters granted to appellant and that he grant letters to her. In essence, the appellant contends that the register of wills has no authority to make a finding of paternity. That argument is without merit.

The register of wills is charged with the duty of granting letters of administration to the person thereunto entitled. The Probate, Estates and Fiduciaries Code provides that letters of administration in the estate of a person dying intestate and without a surviving spouse shall be granted to those persons entitled under the intestate law. In the instant case, two people, each claiming to have the paramount right to letters of administration, appeared before the register. One claimed letters as the decedent’s mother and one claimed letters as the decedent’s daughter. If the register’s duty to grant letters to the person properly entitled under the code is to have any meaning, that duty must, of necessity, carry with it the duty to hear and determine a claim to letters based upon paternity. Otherwise, the register loses his judicial function and acts merely as a clerical functionary.

The register did not abuse his discretion when he entertained appellee’s petition. On the contrary, he acted correctly by holding a hearing to determine if the letters he granted to decedent’s mother were properly granted. The register has always had the inherent power to annul or vacate letters granted to a person not entitled. Phillip’s Estate, supra.

As stated previously, the register did not file an opinion in support of his decree. Consequently, the court does not have a written justification from the register for his decision. However, the notes of testimony and the evidence offered at the hearing before the register were produced by the appellees at the hearing before this court. Because the only issue before this court is whether the register abused his discretion in revoking appellant’s letters and directing that letters be granted to appellees, the court is of the opinion that the notes of testimony and the evidence offered before the register are properly before this court for its inspection.

The court finds nothing in that record to indicate that the register abused his discretion. In fact, the testimony and the evidence before the register amply support a finding that appellees are the decedent’s daughters and have a paramount right to letters of administration.

For all of the above reasons, the court is of the opinion that the appeal of Dorothy Martin should be dismissed. An appropriate decree will be entered.

DECREE

And now, January 16, 1990, the appeal of Dorothy Martin from a decree of the register of wills, dated March 2, 1988, revoking letters of administration granted to her and directing the letters of administration be granted to Tilena Shareese McFadden or her nominee, is dismissed and the record is remanded to the office of the register of wills.

Unless exceptions are filed to this decree within 20 days from the date hereof, this decree will become absolute as of course.


author: KELLER, P.J.,

text:
    Mentzer v. Strayer
    July 28, 1989

      J. McDowell Sharpe, for plaintiffs.

      Jonathan D. Fenton, for defendants.
   KELLER, P.J.,

On April 5, 1989 plaintiffs, Gary L. Mentzer and his wife Becky D. Mentzer (hereinafter referred to as landlords) filed an action in ejectment against their tenants, John Strayer and Beverly Dale (hereinafter referred to as tenants). The complaint consisted of two counts. Count I seeks a judgment in ejectment against the tenants. Count II demands judgment for rent due and payable, late charges and damages to the leased premises.

On May 1,1989, tenants filed preliminary objections in the nature of a petition raising questions of jurisdiction and motions to strike for non-conformity to the Landlord and Tenant Act and to the parties’ lease. The matter was listed for the June argument court. Briefs were exchanged and oral arguments were heard on June 1, 1989. This matter is now ripe for disposition.

This litigation arises from the landlords’ leasing of their real estate at 1565 Falling Spring Road, Guil-ford Township, Pennsylvania to the defendants/ tenants. The landlords allege a written month-to-month lease between the parties commencing on April 18, 1988. The landlords concede the original lease was lost but allege exhibit B is a true and correct unsigned duplicate. The brief of tenants asserts there was only an oral month-to-month lease which commenced at an unspecified date in April 1988. The landlords allege, and the tenants appear to agree, a notice to quit was served upon them on February 16, 1989 requiring them to move out of the apartment within the next 30 days and that the apartment “be empty by March 16, 1989.” The notice cited failure to pay rent and excessive noise as the grounds for the landlords’ action.

At oral argument counsel stipulated that the tenants had vacated the premises prior to June 1, 1989.

The tenants assert that the notice to quit served upon them on February 16, 1989 is procedurally defective because the date set for vacation of the premises, i.e., March 16,1989, was only 28 days after the notice was served. Premised upon this fact, the tenants’ preliminary objections seek dismissal of the action due to (1) lack of subject matter jurisdiction; (2) lack of conformity to the Landlord and Tenant Act, 68 P.S. 250.501; (3) lack of conformity to the lease. Tenants’ brief concedes that the notice they received states, “You are hereby notified that you must be out of our apartment within the next 30 days.”

Squarely before the court is the issue of whether the notice to quit, which clearly stated that the tenants were to remove themselves from the premises within 30 days, is fatally defective because the calculated date for removal was only 28 days. We find that it is not.

The Landlord and Tenant Act, 68 P.S. 250.501, provides in pertinent part:

“A landlord desirous of repossessing real property from a tenant may notify, in writing, the tenant to remove from the same at the expiration of the time specified in the notice under the following circumstances, namely, (1) upon the termination of a term of the tenant...”

Both parties are in agreement that regardless of whether the lease is written or oral, the lease was a month-to-month tenancy for which 30 days’ notice was required to terminate the lease. Since this was a month-to-month lease, the applicable Pennsylvania law and the terms of the alleged written lease require the landlords to give 30 days’ notice prior to the termination of the terms of the lease, (emphasis supplied) In this case, since the lease was month-to-month, the earliest possible date on which the landlords could terminate the lease following the notice served on February 16, 1989, while giving the tenants the required 30 days’ interim period was April 1, 1989.

The Superior Court in Mercer County Agricultural Society v. Barnhardt, 313 Pa. Super. 206, 459 A.2d 811 (1983), decided a case markedly similar to the instant case. In Mercer, the date for termination stated in the notice to quit fell in the middle of the subsequent term rather than at the end of that term. The Superior Court observed that at common law such a notice would be defective and have no effect upon the termination of the tenancy. As such, the tenancy would continue until properly terminated. The court then abrogated the common-law doctrine and adopted in its stead the Restatement (Second) of Property § 1.5(f) which provides:

“In the absence of controlling provisions in the lease ... If the date in the notice of termination is not the end of the period, the notice will be effective to terminate the lease at the earliest possible date after the date stated.” Mercer County Agricultural Society, 313 Pa. Super. at 212-3, 459 A.2d at 815.

The court quoted the Restatement reporter’s note to the above section which states:

“It seems unduly technical to deprive a notice to terminate a periodic tenancy of any legally operative effect if it designates as a date of termination a date on which the tenancy cannot be terminated.”

The Superior Court’s decision in Mercer is controlling in the case at bar. Here the tenants were given adequate notice that the landlords desired that they remove themselves from the premises at the earliest possible date. The earliest possible date on which this could occur after the notice of February 16, 1989 was April 1, 1989. To deprive the landlords of their right to terminate this month-to-month tenancy due to the fact that the stated date for the tenants’ vacation did not fall 30 days after the notice was served, and did not fall at the end of the next term, is precisely the type of unduly technical common-law restriction that the Superior Court abrogated in Mercer.

Furthermore, the purpose of the notice to quit, as explained by our highest court:

“[I]s to give the tenant time to prepare for eviction . . . and further to evidence the fact the landlord is exercising his option to repossess the premises.” Elizabethtown Lodge No. 596 v. Ellis, 391 Pa. 19, 28, 37 A.2d 286, 290 (1958).

The apparently undisputed facts of this case demonstrate that the time period between the date the notice to quit was served upon the tenants, February 16, 1989, and the date the action in ejectment was commenced, April 5, 1989, was more than sufficient to effect the purposes enumerated.

For the foregoing reasons, we conclude that the tenants’ preliminary objections premised upon the failure to comply with the 30-day notice requirement of the Landlord and Tenant Act, supra, and the purported written lease, or the oral lease, are without merit.

In addition, we conclude that even if the notice to quit was procedurally defective for purposes of the landlords’ action in ejectment, which is now moot by reason of the tenants vacating the leased premises, it would not affect the landlords’ cause of action for money damages since Pa.R.C.P. 1020 specifically permits pleading more than one cause of action.

ORDER OF COURT

Now, July 28, 1989, defendants’ preliminary objections are dismissed.

Count I is found to be moot.

Defendants shall file a responsive pleading to count II within 20 days of date.

Exceptions are granted defendants.


author: HUDOCK, J.,

text:
    Commonwealth v. Flenory

      June 28, 1989

      Maria Greco Danaher, assistant district attorney, for the commonwealth.

      Duke George Jr., for defendant.
   HUDOCK, J.,

This matter is before the court on a petition for forfeiture of U.S. currency in the amount of $7,992 pursuant to 42 Pa.C.S.§6801 et seq.

The facts are that on November 5, 1988 defendant was arrested on charges of recklessly endangering another person, simple assault and terroristic threats at B.J.’s Bar in New Kensington. After his arrest, defendant was patted down and in his right front pocket there was found the money in question. No contraband was found on defendant’s person. A vehicle registered to another person, but which defendant had been known to drive, was parked in the vicinity of the arrest and it was illegally parked. The police found, in plain view, a hemostat clip and suspected marijuana “roach” in the dashboard ashtray. The vehicle was towed to an impound area, a search warrant obtained, and the subsequent search produced from the vehicle “E-Z Wider” cigarette papers, a baggie containing what turned out to be a small quantity of marijuana, and a number of other “roaches.” In the car were also found utility bills directed to defendant. After his arrest defendant was asked about the money confiscated from his person and defendant first stated that the money came from an accident settlement he had concluded with an insurance company, and then later said that he got the money from his father. At the hearing, defendant testified that the money found on his person was a combination of the proceeds of the accident settlement and money given to him by his father for teeth implants. There was no evidence that defendant was dealing in drugs, either by way of an informant’s tip, surveillance, or any other source.

The commonwealth contends that pursuant to section 6801(a)(6)(i)(B) the money is subject to forfeiture because it was used or intended to be. used to facilitate a violation of the Controlled Substance, Drug, Device and Cosmetic Act. To prove the actual or intended use of the money the commonwealth relies upon section 6801(a)(6)(h) which provides that a rebuttable presumption arises where money is found “in close proximity to controlled substances possessed in violation of the Controlled Substance, Drug, Device and Cosmetic Act” and the presumption which so arises is that the proceeds were derived from the selling of a controlled substance in violation of the act.

Defendant contends, inter alia, that there is no proof that the vehicle in which the contraband was found was his vehicle or that he had actual or constructive possession of it, that the money was not found “in close proximity” to the contraband, and that even if it were his vehicle and the money was found in proximity to the contraband, the presumption that arises pursuant to the above-cited statute is a rebuttable one, and that the evidence in the case rebuts the presumption that the money was connected with illegal drug sales.

The commonwealth must prove by a preponderance of the evidence that the money was derived from illegal drug transactions, with or without the presumption created by the 1984 amendment of the Drug Act. Commonwealth v. $15,836.85 Cash, 354 Pa. Super. 279, 511 A.2d 871 (1986). The only evidence in this case of illegal drug activity, taking the evidence in the light most favorable to the commonwealth, is that marijuana and paraphema-lia to use it were found in the vehicle. There is no other evidence that defendant was seen dealing in drugs, that any informant had provided such information, or that any other facts connect the money to the contraband. The small quantity of marijuana, the cigarette paper and the “roaches” are more consistent with personal use than sale, and the evidence convinces this court that the contraband was for personal use. That being the case, the presumption that the money represented proceeds derived from the selling of a controlled substance is rebutted by the court’s conclusion that the contraband was for personal use of defendant. There being no other evidence to connect the money with illegal drug sales, defendant must prevail.

ORDER OF COURT

And now, June 28, 1989, the petition for forfeiture of $7,992 is hereby denied and the said money shall be returned to defendant forthwith.


author: LOWE, J.,

text:
    Commonwealth v. Kasem

      December 20, 1988

      James P. Geoghegan, for defendant.
   LOWE, J.,

Petitioner Ronald Edward Kasem, a/k/a Ronald Edwin Kasem, appeals this court’s denial of his petition to expunge his criminal record.

On May 15, 1970 the Upper Moreland Township Police arrested petitioner and charged him with violating the Drug, Device and Cosmetic Act, and conspiracy to violate the act. (Current version at 35 P.S. §780-113 (1978)). Petitioner pled guilty to the charges. On September 21, 1971 he was released on probation for 18 months. To date, the conviction has not been reversed or vacated, nor has petitioner been pardoned.

On August 10, 1988 petitioner filed a petition to expunge his criminal record, citing as support his crime-free record since his conviction, his marriage, and his continuous employment. Petitioner is to be commended for his subsequent progress and rehabilitation; however, this court is without authority to expunge a conviction record absent an empowering statute. Commonwealth v. Landis, 64 D.&C. 2d 23 (1973). Two statutes providing for the expunction of criminal records have been researched, but neither pertains to the instant case.

Although a court has the inherent power to amend its records, it does not have inherent power to expunge without statutory authority. Commonwealth v. Landis, supra. The court in Landis denied a request, similar to the request in the instant case, for expunction of a criminal conviction for drug violations. The court held that the petitioner did not qualify for expunction under the Drug Act of April 11, 1972, P.L. 165, which was the only statute in Pennsylvania at that time that authorized expunction of criminal records.

The current version of this statute is the Controlled Substance, Drug, Device and Cosmetic Act; 35 P.S. §§780-118-119. The act permits expunction of records only in limited situations. Section 780-119(a) provides for expunction of criminal records when the charges have been withdrawn, dismissed, or when they result in an acquittal. Section 780-118 permits the court to expunge the criminal record of an individual charged with a non-violent crime, who claims to abuse or be dependent upon drugs, and who needs treatment. Neither of these sections is applicable to this case. Petitioner has not been acquitted of his drug charges, nor have the charges been withdrawn, dismissed, or pardoned. Also, petitioner does not claim to be dependent upon or abuse drugs.

The other statute that authorizes the expunction of a criminal record is found in the Crimes Code, 18 Pa.C.S. §9122. Petitioner is not entitled to expunction under this statute either. Section 9122(a) applied only to the expunction of non-conviction data contained in the criminal record, whereas section 9122(b) applies to the expunction of the entire criminal record regardless of the disposition of the case.

In the instant case, petitioner pleaded guilty to the charges against him, and thus any right to expunction must be found in section 9122(b)(1) or (b)(2). But the petitioner does not qualify under either section. Section 9122(b)(1) permits expunction of the entire criminal record when the individual has reached the age of 70 years and has been free from arrest or prosecution. Although the petitioner has not been arrested or prosecuted for almost 20 years, he is only 45 years old. Section 9122(b)(2) is not applicable here either because it allows expunction when the individual has been deceased for three years. Therefore, petitioner does not meet these statutory requirements for expunction under 18 Pa.C.S. §9122.

The Superior Court of Pennsylvania established the principle that courts lack authority to expunge criminal records for individuals who have been arrested and convicted of crime. Commonwealth v. Magdon, 310 Pa. Super. 84, 456 A.2d 194 (1983). Moreover, that court has held that an individual who has been validly convicted of a crime, whose conviction has not been reversed or vacated, is not entitled to have the record of such conviction expunged. Commonwealth v. Cremins, 356 Pa. Super. 449, 514 A.2d 945 (1986); Commonwealth v. Homison, 253 Pa. Super. 486, 385 A.2d 493 (1978). Based upon this precedent, the undersigned finds that this petitioner is not entitled to expunction of his criminal record because this court lacks authority to do so, the conviction was valid and has not been vacated, reversed, or pardoned and petitioner has not met any of the statutory requirements for expunction under 18 Pa.C.S. §9122.

The Superior Court of Pennsylvania has distinguished a line of cases in which the legislature allows courts to expunge the criminal records of individuals who complete the specific rehabilitative programs. Commonwealth v. Cook, 359 Pa. Super. 216, 518 A.2d 858 (1986). In Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981), for example, the Supreme Court of Pennsylvania held that an individual who successfully completed an accelerated rehabilitative disposition program was entitled to expunction. And, in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), the Supreme Court held that a juvenile who entered into a consent decree, pursuant to the Juvenile Act, was entitled to expunction. Both cases dealt with programs having specific rehabilitative goals requiring expunction of criminal records. These facts are not present here.

In sum, petitioner’s conviction is valid and has not been reversed, vacated, or pardoned. He was afforded a hearing at which time he presented no applicable statutory authority to allow this court to grant expunction of his criminal record. Accordingly, this court did not err in denying the petition. An application for relief sought by the petitioner should be addressed to the Board of Pardons, Commonwealth v. Magdon, supra.


author: BORTNER, J.,

text:
    PennDOT v. Fischer
    September 13, 1989

      Charles McCardell, deputy attorney general, for the commonwealth.

      Gomer T. Williams, for defendant.
   BORTNER, J.,

Petitioner appealed to this court from the order of the Department of Transportation which suspended his driver’s license. A hearing was held by this court on June 20, 1989. We hereby make the following

FINDINGS OF FACT

(1) Petitioner, Richard J. Fischer, was driving in the vicinity of Ben Lane and Bristol Road, Warmin-ster Township, Bucks County on the evening of December 23, 1988.

(2) Petitioner pulled off the road near the intersection due to a flat tire.

(3) Individuals at the scene, believing petitioner was intoxicated, took his car keys to prevent him from driving.

(4) Officer William Overberger, the officer dispatched to the scene, observed a strong odor of alcohol, bloodshot eyes and slurred speech upon approaching petitioner.

(5) After Officer Overberger obtained petitioner’s license and registration, he asked petitioner to exit the vehicle.

(6) Petitioner refused to exit his vehicle, despite repeated requests from Officer Overberger to do so.

(7) Subsequently, Officer Overberger told petitioner he suspected him of driving under the influence and again asked him to exit his car so petitioner could perform field sobriety tests.

(8) After another refusal to exit, Officer Over-berger forcibly removed petitioner from the vehicle and placed him under arrest for driving under the influence of alcohol.

(9) At that time, petitioner was handcuffed, placed in the police car, and advised of his Miranda rights.

(10) Officer Overberger then advised petitioner of the implied consent law and asked him to submit to a blood test at Warminster General Hospital.

(11) Petitioner responded that he was confused as to what to do and asked to speak with his lawyer.

(12) Petitioner felt he had a right to counsel in this situation because he had been advised as such by the arresting officer.

DISCUSSION

In license suspension cases it is the commonwealth’s burden to establish that the driver involved was specifically warned that a refusal would result in the revocation of his driver’s license. Commonwealth, Department of Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). “Once the commonwealth meets its burden, it is the driver’s responsibility to prove that he was not capable of making a knowing and conscious refusal to take the test.” The above determination is to be made by the trial court. O’Connell, supra.

We find petitioner was not capable of making a knowing and conscious refusal to take the blood test. It is undisputed that Officer Overberger specifically warned petitioner that his license would be revoked for his refusal to submit to the test. However, petitioner testified that he refused because he was misled into believing by the officer’s giving of Miranda warnings that he was entitled to confer with an attorney prior to taking the test.

Our Supreme Court recently held in Commonwealth, Department of Transportation v. O’Con-nell, supra, that a driver’s testimony, that he became confused when asked to take a breathalyzer test because moments before he had been given his Miranda warnings, was sufficient to support the trial court’s determination that defendant’s refusal was not knowing due to his confusion. The O’Connell court concluded that since it is the officer’s conduct that creates the confusion, it is his burden to advise the arrestee that Mi randa rights are inapplicable to the breathalyzer test. Pursuant to the O’Connell decision, we find petitioner’s refusal to take the blood test was not knowing due to his confusion concerning the Miranda warnings.

ORDER

And now, September 13, 1989, after hearing, petitioner’s appeal is sustained. The order of the Department of Transportation denying petitioner’s license is hereby reversed, effective June 20, 1989.


author: D’ALESSANDRO, J.,

text:
    PennDOT v. Tomczak
    March 7, 1989

      Thomas J. Hines, assistant counsel, for the commonwealth.

      David M. Dougherty, for defendant.
   D’ALESSANDRO, J.,

Before this court is the appeal of Stanley Tomczak from an order of the Secretary of Transportation suspending appellant’s driving privileges, pursuant to section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b). For reasons stated herein, we have vacated the suspension ordered by the Secretary of Transportation.

Appellant was arrested for driving under the influence of alcohol by Trooper Joseph R. Carcaci. Trooper Carcaci testified that he read appellant his Miranda rights and additionally informed appellant of his rights with regard to the administration of a breathalyzer test. Trooper Anthony M. Gant, certified intoxilyzer operator, testified that he fully advised appellant of his rights with regard to the administration of the breathalyzer test. Both troopers clearly recall appellant’s refusal to submit to a breathalyzer examination. However, neither have a recollection of appellant’s request to take the breathalyzer shortly thereafter.

Appellant testified that he failed to comprehend the ramifications of a refusal to submit to the breathalyzer examination due to his extreme nervousness during the entire ordeal. Shortly after appellant’s alleged refusal to submit to the breathalyzer, he was informed and for the first time fully understood that his refusal would result in the loss of his driver’s license for one year. Appellant requested administration of the breathalyzer test, at which time he was told that he could not take the test because of his prior refusal.

Whether the operator of a motor vehicle has refused to submit to a breathalyzer test is a question of fact. Commonwealth, Department of Transportation v. Krishak, 91 Pa. Commw. 307, 496 A.2d 1356 (1985). Such a determination depends upon the facts of each case. Lane v. Commonwealth, Department of Transportation, 124 Pa. Commw. 246, 556 A.2d 12 (1989).

“In order to sustain a suspension under section 1547 of the code, the commonwealth must prove that the driver: (1) was placed under arrest for driving while under the influence of alcohol; (2) was requested to submit to a chemical test; (3) refused to do so; and (4) was warned that his license would be suspended if he refused.” Capozzoli Appeal, 63 Pa. Commw. 411, 437 A.2d 1340 (1981). “Once the commonwealth establishes these elements, the burden shifts to the appellant to prove by competent evidence that;'he was unable to make a knowing and conscious refusal.” Id.

According to our interpretation of the testimony, appellant’s refusal to submit to the breathalyzer test and appellant’s subsequent request to be tested occurred during the same conversation in which, only after his initial refusal, did it become clear to appellant that his license would automatically be suspended for one year. Trooper Gant then refused to administer the test because of appellant’s prior refusal only moments before.

We find that appellant was not aware of what he needed to do to avoid a suspension of his driver’s license until after his initial refusal. Appellant’s request to have the test administered came moments after his initial refusal and occurred during the course of the same conversation. Under these particular circumstances, appellant should have been given an opportunity to take the breathalyzer.

Accordingly, we have entered an order granting appellant’s appeal and revoking the suspension of his driver’s license.


text:
    PennDOT v. Richardson
    March 1, 1989

      Donald H. Poorman, deputy attorney general, for the commonwealth.

      Daniel Conner, for defendant.
   D’ALESSANDRO, J.,

Freeman Richardson appeals the one-year suspension of his driving privileges by the Commonwealth of Pennsylvania, Department of Transportation.

On August 13, 1984, petitioner was convicted of operating a motor vehicle under the influence of alcohol, 75 Pa.C.S. §3731(a)(l). Petitioner was sentenced to one year probation, the mandatory fines and court costs, as well as enrollment in the Post-Alcohol Safe Driving School.

On May 1, 1988, almost four years after petitioner’s conviction, the clerk of court certified petitioner’s conviction which was received by the Bureau of Licensing Suspension Enforcement Section on May 31, 1988.

Six weeks thereafter, PennDOT by letter dated July 13, 1988, informed petitioner of its intention to suspend petitioner’s driver’s license effective August 13, 1988. A hearing de novo was held before this court on November 17, 1988 and an order vacating the suspension of petitioner’s driver’s license was granted on November 23, 1988.

We vacated PennDOT’s attempt to suspend petitioner’s driver’s license, approximately four years after his conviction, because of the inequitable hardship the license suspension would cause petitioner and his wife.

Petitioner’s entire status in life has changed since his conviction order 3731(a)(1), approximately four years ago. Petitioner is currently a productive member of our society, gainfully employed by the Philadelphia Corporation for Aging. Petitioner performs housecleaning services for the handicapped and elderly. A driver’s license is essential to petitioner’s continued employment at the Philadelphia Corporation for Aging.

The four-year period between conviction and suspension has also seen petitioner’s wife’s health deteriorate to a point where she requires frequent hospital and doctor visits due to a heart condition and arthritis. Neither of these hardships were present four years ago.

The rationale for suspending a driver’s license is to protect the traveling public as well as to punish and deter wrongdoers. Neither purpose is served under the facts of this case.

Petitioner has driven for the past four and one-half years without incident and is not a danger to the traveling public. Thus, the sole purpose in suspending petitioner’s license is to punish petitioner. As previously stated, punishment to petitioner, under the particular circumstances of this case, is unjust due to the hardship that would be suffered by petitioner and his wife.

In revoking the suspension of petitioner’s driver’s license, we are not unmindful of the decisions of the Commonwealth Court holding that PennDOT cannot be held accountable for a judicial delay by the court clerk in failing to notify PennDOT of a final conviction, PennDOT being chargeable with delay occurring only after it has received the certification of conviction. Schultz v. Department of Transportation, 70 Pa. Commw. 604, 453 A.2d 730 (1985); Department of Transportation, Bureau of Traffic Safety v. Lyons, 70 Pa. Commw. 604, 453 A.2d 730 (1982).

Our decision strictly focuses upon the undue and inequitable hardship which would be suffered by petitioner and his wife due to changes in their life, regardless of who is responsible for the four-year period of delay between petitioner’s conviction and PennDOT’s suspension of his driver’s license.


author: MILLER, J.,

text:
    Farmer v. Consla
    February 6, 1990

      Christopher J. Youngs, for plaintiff.

      William L. Walker, for defendant.
   MILLER, J.,

This matter comes before the court on a request by defendant for a hearing alleging (a) that the hearing officer improperly arrived at defendant’s monthly net income because she took into account incentive payments for piece work and (b) that the fact that defendant supports three stepchildren should be taken into account.

The court has thoroughly reviewed this matter and believes that the recommendation of the hearing officer properly calculated defendant’s net income in order to arrive at his financial ability to pay support. His earnings over a six-month period of time should reflect highs and lows in earnings and thus produce a realistic average. Those were supplied by the employer.

What should be the effect of the presence of stepchildren who are being supported by defendant? Should defendant’s support of those stepchildren, who are not receiving support from their natural fathers because one father cannot be found and the other father is disabled, be taken into account in arriving at defendant’s expenses for the purpose of determining the appropriate amount of support he owes for his natural children? Should the number of stepchildren be added to the number of natural children to arrive at the total number of children defendant is to support in order to arrive at the dollar amount of support defendant owes for the natural children in plaintiffs custody?

A quick review of the law yields no appellate court decisions on this issue. The support guidelines (Pa.R.C.P. 1910.16-1) created a rebuttable presumption that the amount of support determined from the guidelines is correct (Pa.R.C.P. 1910.16-1) and establish a starting point (Pa.R.C.P. 1910.16-5).

The court is then obligated to take into consideration the needs and obligations of the parties in order to make allowance for the reasonable living expenses of defendant. DeWalt v. DeWalt, 365 Pa. Super. 280, 529 A.2d 508 (1987). The new rules and existing cases delineate the kinds of expenses that the court should consider which include “other support obligations” of defendant and “unusual needs and unusual fixed obligations” of defendant (Pa.R.C.P. 1910.16-5(a)). Clearly defendant is not obligated to support the stepchildren, Kline v. Sarubin, 324 Pa. Super. 363, 471 A.2d 881 (1984); Butler v. Butler, 339 Pa. Super. 312, 488 A.2d 1141 (1985), and clearly the support of those stepchildren does not represent unusual needs of defendant himself. Those are not “reasonable living expenses of the defendant.” His living expenses would relate to the cost of his own maintenance and others whom he is obligated to maintain.

Most of the other lower courts who have written on this issue agree that where a father remarries and voluntarily assumes new responsibilities for the support of the stepchildren, a reduction in the amount of support that he owes for his own natural children is not warranted. See Commonwealth ex rel. Young v. Young, 96 Montg. L.R. 334 (1973); Commonwealth v. William Koble, 36 Northum. L.J. 169 (1964); Rothermel v. Rothermel, 56 Schuylkill Leg. Rec. 179 (1959); Commonwealth ex rel. Sommers v. Sommers, 1 Bucks L. Rep. 297 (1950). One lower court opinion from Delaware County does support the defendant’s view, which we reject (Commonwealth ex rel. Jennings v. Jennings, 57 Delaware Rep. 198 (1969)).

A father cannot take a voluntary reduction in pay, nor buy extravagant items nor refuse to work in order to reduce the amount of support he has to pay his natural children. Allowing a father to voluntarily take on additional children to whom he does not legally owe support is a similar problem which should not work to defendant’s advantage. If we were to allow that sort of expense we would almost have to try the other related support cases to determine whether or not it is appropriate for the stepfather to be supporting the stepchildren and to find out why the natural father of those children is not supporting them.


author: McGINLEY, J.,

text:
    Hilbert v. Novak
    August 30, 1989

      Mark Malkames and William Malkames, for plaintiffs.

      William E. Schantz, for defendant Richard J. Novak.

      William A. Slotter, for defendant PennDOT.
   McGINLEY, J.,

The matter before the court is plaintiffs’ motion for partial summary judgment. Plaintiffs’ motion raises a question of apparent first impression in this commonwealth: whether 42 Pa.C.S. §5533(b), which tolls the running of statutes of limitation until a minor reaches majority, tolled the running of the six-month period within which plaintiff should have given notice to the commonwealth defendant as required by 42 Pa.C.S. §5522(a). Plaintiffs argue that they are entitled to judgment that they complied with section 5522(a) as a matter of law. The facts relevant to the instant motion are undisputed. On May 9, 1985, a car driven by defendant Richard J. Novak struck Gary Hilbert Jr., who was a minor, resulting in injuries to him. A notice substantially in the form required by 42 Pa.C.S. §5522(a) was transmitted to defendant PennDOT and the other required individuals on January 17, 1986, more than eight months after the accident.

Plaintiffs filed a complaint against both defendants on January 7,1987. Gary Hilbert Jr. turned 18 years of age on February 24, 1987.

Title 42 Pa.C.S. § 5522(a) provides, in relevant part:

“(a) Notice prerequisite to action against government unit
“(1) Within six months from the date that any injury was sustained or any cause of action accrued, any person who is about to commence any civil action or proceeding within this commonwealth or elsewhere against a government unit for damages on account of any , injury to his person or property under Chapter 85 (relating to matters affecting government units) or otherwise shall file in the office of the government unit, and if the action is against a commonwealth agency for damages, then also file in the office of the Attorney General, a statement in writing, signed by or in his behalf, setting forth:
“(i) The name and residence address of the person to whom the cause of action has accrued.
“(ii) The name and residence address of the person injured.
“(iii) The date and hour of the accident.
“(iv) The approximate location where the accident occurred.
“(v) The name and residence or office address of any attending physician.
“(2) If the statement provided for by this subsection is not filed, any civil action or proceeding commenced against the government unit more than six months after the date of injury shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from proceeding further thereon within this commonwealth or elsewhere. The court shall excuse non-compliance with this requirement upon a showing of reasonable excuse for failure to file such statement.”

Title 42 Pa.C.S. §5533(b) excludes any period of minority from the time within which an individual who has suffered injuries must commence a civil action. It provides in relevant part:

“(b) Infancy — If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection the term ‘minor’ shall mean any individual who has not yet attained the age of 18.” As amended May 30, 1984, P.L. 337, no. 67, §1, effective in 30 days.

Plaintiffs assert that 42 Pa.C.S. §5533(b) tolled the six-month time period within which notice must be given under 42 Pa.C.S. § 5522(a), so that the six months did not begin to run until Gary L. Hilbert Jr. turned 18 years of age. Inasmuch as plaintiffs provided notice to PennDOT even before Gary L. Hilbert Jr. reached majority, plaintiffs claim that they have complied with section 5522(a).

Title 42 Pa.C.S. § 5522(a) does not limit the time within which ari action may be commenced. Rather, it limits the time within which a plaintiff must give notice to a government unit that he/she may in the future commence an action against that unit. (Compare 42 Pa.C.S. § 5522(a) to section 5522(b), section 5523 et seq.)

Inasmuch as 42 Pa.C.S. §5533(b) tolls statutes which limit the time within which an action may be brought and 42 Pa.C.S. § 5522(a) does not limit the time within which an action may be brought, but instead limits the time within which the notice prerequisite to the bringing of the action must be filed, we find that section 5533(b) does not apply to section 5522(a), and therefore conclude that Gary L. Hilbert Jr.’s minority did not toll the running of the six-month limitation. Accord George v. Town of Saugus, 394 Mass. 40, 474 N.E.2d 169 (1985). But see Vedutis v. Tesi, 135 N.J. Super. 337, 343 A.2d 171 (1975). See also 18 E. McQuiUin, “Municipal Corporations” §53.159 at 769-74; Anno. 58 ALR 4th 402 (1987).

Plaintiffs argue that the notice required by 42 Pa.C.S. § 5522(a) commences an action against a government unit, and therefore that the six-month period is a limitation upon when an action can be commenced. This is clearly not the case. Section 5522 itself makes a distinction between a personal injury suit, which requires notice to the governmental unit, and other types of suit which require actual filing of an action against the governmental unit within six months. See section 5522(b). Further, an action at law can be commenced only by filing a complaint or summons (Pa.R.C.P. 1007, 42 Pa.C.S.).

Plaintiffs also contend that 42 Pa.C.S. §5533(b) necessarily implies that the causes of action of minors do not accrue until the minors attain majority. We do not agree. The statute itself assumes that a cause of action may accrue while an individual is still a minor. (“If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues . . . ”) (emphasis supplied) Further, as a matter of Pennsylvania law, a tort cause of action generally accrues upon the date of the injury. Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980); Marino v. Seneca Homes Inc., 63 Pa. Commw. 534, 439 A.2d 1287 (1981), appeal dismissed 499 Pa. 61, 451 A.2d 444 (1982). We find that 42 Pa.C.S. §5533(b) does not evidence a clear legislative intent to exclude minors from the aforementioned general rule.

Plaintiffs also argue that the policies underlying 42 Pa.C.S. §5533(b), that minors have the same right as others to bring an action once they reach adulthood, require that it be applied to toll the six months’ notice period of 42 Pa.C.S. §5522(a). It must be noted, however, that section 5522(a) itself represents the expression of a strong state policy, i.e. that government units should be: (1) given the opportunity to make timely investigations; and (2) protected from stale and fraudulent claims. James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 148, 477 A.2d 1302, 1307 (1984). We will not carve out an exception to this strong state policy without a clear indication of legislative intent, an intent we find lacking with respect to the six-month notice provision of section 5522(a). Accord George v. Town of Saugus, supra.

For all of the above reasons, we deny plaintiffs’ motion. Pursuant to 42 Pa.C.S. § 5522(a)(2), plaintiffs will now be permitted to present evidence that they had a reasonable excuse for their failure to timely comply with 42 Pa.C.S. §5522(a)(l).

ORDER

Now, August 30, 1989, upon review of the briefs of the parties, it is ordered that plaintiffs’ motion for partial summary judgment against defendant Commonwealth of Pennsylvania, Department of Transportation is denied.

It is further ordered that a hearing on the issue of “reasonable excuse” shall be Usted before the Honorable Carol K. McGinley during hearing court beginning October 9, 1989.

      . Appellants in Ramon v. Department of Transportation, 124. Pa. Commw. 416, 420, 556 A.2d 919, 921 (1989), attempted to raise this issue but the court determined that it had been waived because it had not been raised at the trial level.

      . By order of court dated April 21, 1989, defendant Commonwealth of Pennsylvania, Department of Transportation was given leave to file an amended new matter to raise the affirmative defense alleging plaintiffs’ alleged failure to comply with the six-month notice provision of 42 Pa.C.S. §5522(a). The amended new matter was filed by defendant PennDOT on May 4, 1989.

      . The New York notice of claim statute at General Municipal Law §50-e, subsection 5, grants the court discretion to extend the time within which the notice of claim must be served.

      . For the standards applying to the issue of reasonable excuse, see: Yurechko v. Allegheny County, 430 Pa. 325, 243 A.2d 372 (1968); Ramon v. Dept. of Transportation, 124 Pa. Commw. 416, 556 A.2d 919. See also Anno. 55 ALR 3d 930 (1974).


text:
    McClure v. Township of Bristol

      August 22, 1989

      Lawrence E. Brinkman, for plaintiff.

      William Carlin, for defendant.
   BORTNER, J.,

Defendant has filed a petition to strike and/or open judgment. We hereby deny said petition and set forth our reasons below.

In June 1987, the Bristol Township Council hired Attorney John M. McClure to represent Council in the defense of a lawsuit filed against them and Donald B. McCoy, Esq., the township solicitor, by the township mayor, Edna M. Roth, in the case captioned Roth v. McCoy, 49 D.&C. 3d 390 (1989). Throughout the litigation in the above-captioned case, Roth refused to sign any township checks in payment for McClure’s services. Consequently, McClure brought this instant action on December 28, 1988, to secure payment (no. 88-10105).

On December 28, 1988, the complaint was served on the Council president at a special meeting of Council. A majority of Council then voted to plead “no defense” to the complaint.

Pursuant to such vote, apraecipe to enter judgment by consent against defendant Bristol Township was filed on December 29, 1988. Accordingly, a writ of execution was issued on the praecipe by plaintiff.

On January 11, 1989, the Bucks County Sheriff’s Department levied on 10 motor vehicles belonging to the township. Said vehicles were scheduled by the sheriff to be sold on February 17, 1989.

However, on that same day, attorneys for the township presented a petition to stay or set aside the execution to the Honorable William Hart- Rufe III. Judge Rufe entered an order releasing the vehicles from levy on the condition that a fund of $10,500 be set aside to secure the execution. The order further precluded execution on the fund prior to February 17, 1989, thereby giving the township an opportunity to obtain an order by this court. On February 17, 1989, McClure filed a new praecipe for a writ of execütion in order to execute on the $10,500 fund. When the sheriffs deputy proceeded to the bank where the fund was located, bank officials refused to release said fund.

In response to McClure’s efforts to satisfy his judgment, attorneys for the township filed a petition to strike off or open judgment. The petition stated, inter alia, that the judgment entered against Bristol Township, “was taken without the consent and/or approval of the chief executive officer of the township. ”

On February 24, 1989, we held a conference in chambers at which time we requested briefs of each party on the narrow issue of whether or not Council had the authority to consent to judgment being entered against Bristol Township in a lawsuit filed against the township. Subsequently, we ordered a rule to show cause why the instant judgment should not be stricken.

Upon consideration of the Bristol Township Administrative Code which was adopted to govern Bristol Township administration in conjunction with the First Class Township Code and Plan C of the Home Rule Charter Optional Plans Law, Act 62 of 1972, we find that Council has the authority to take official action in binding the township in litigation, including consenting to judgment.

The following provisions reveal that the policy decision on whether or not to defend a lawsuit rests with council. Pursuant to the First Class Township Code, townships may sue and be sued (53 P.S. §56501). Further, the corporate power of a township is vested in the board of township commissioners (53 P.S. §56502).

Plan C of Act 62 divides the powers and duties of the municipal government between the executive and council. Section 511 of Act 62 directs that the legislative power of the municipality be exercised by the municipal council (53 P.S. §1-511). On the other hand, section 702 provides that the executive (mayor) shall enforce the ordinances of the municipality and make recommendations for action by the council as (s)he deems in the public interest (53 P.S. §1-702).

Finally, the Administrative Code most clearly draws the line that divides the power between the two branches. The code confers all legislative powers and duties of the township on the council who shall.take all official actions by ordinance, resolution or motion at public meetings. (Administrative Code, sections 307 and 308). In addition, the code permits the executive to attend council meetings and participate in discussions, but specifically states that the executive shall have no vote. (Administrative Code, sections 204B and 305B).

Furthermore, the power to settle a claim rests with council. In Public Defense Association v. City of Pittsburgh, 9 D.&C. 474 (1922), the court held that the council could settle a claim against the city despite the mayor’s veto and the solicitor’s opinion that the city was not liable. The court reasoned that council could settle if they were convinced that settlement was in the best interests of the city. Clearly, the Bristol Township Council at the special meeting on December 28, 1988, found it in the best interest of the township to consent to judgment.

Defendant frames the issue as whether or not Council had the power to hire McClure to defend Council in the lawsuit fried by Edna Roth against Council and the solicitor, Donald B. McCoy. Defendant alleges that since Council had no authority to retain McClure, there was no basis for the entry of judgment in the instant case.

Defendant contends that Council had no authority to hire McClure because a municipality may not provide funds for the defense of an official in a civil action for which no benefit inures to the municipality. Defendant argues that the defense of Donald B. McCoy was merely personal in nature because it involves the retention of his job as solicitor.

To support its argument that Council had no authority to hire plaintiff and thus the contract entered into between Bristol Township and plaintiff was ultra vires, defendant relies upon Roofner’s Appeal, 81 Pa. Super. 482 (1923). In Roofner’s Appeal the Pennsylvania Superior Court held that the attempted employment of an attorney in a matter in which the township had no official duty did not render the township liable to the attorney for his compensation.

Roofner’s Appeal is easily distinguishable from the instant facts. The council fees incurred in Roofner’s Appeal were incurred by the board members for their own purpose of defending criminal charges and charges of official misconduct brought against them. Under the facts before us, Roth brought suit against Council and Solicitor McCoy for exercising official discretion. The Council had no choice but to defend Roth’s action for a mandatory injunction seeking to force Council to consent to her appointment of another solicitor. Since Council’s action in defense of Roth’s suit was necessary and proper, we find their hiring of McClure in the public’s interest. This is especially true in light of the fact that Solicitor McCoy was unable to provide a legal defense for Council as a result of being named a defendant in the same action.

Finally, defendant alleges that service of plaintiff’s complaint was attempted by someone other than the sheriff of Bucks County in violation of PaR.C.P. 400(a). Defendant contends that, such improper service therefore requires dismissal of the complaint and striking of plaintiffs judgment. The record shows that the complaint was in fact personally served by a Bucks County deputy sheriff upon the president of the Bristol Township Council, James McCullen at the Council meeting on December 28, 1989, at 8:00 p.m.

ORDER

And now, August 22, 1989, defendant’s motion to strike off or open judgment is denied.

      . McClure’s action no. 88-10105 was ordered by Judge Rufe to be consolidated with Roth’s action no. 87-3843.

      . The Bristol Township Administrative Code was adopted by Council as Ordinance no. 1 of 1986 to effectuate the adoption of the Plan C government. The Optional Plan C of the Home Rule Charter and Optional Plans Law, section 101 enacted April 13, 1972 is codified at 53 Pa.C.S. §1-101 et seq. The First-Class Township Code, P.L. 1206, Art. 1, §101 was re-enacted, revised, amended and consolidated May 27, 1949 at P.L. 1955, §1 and is now codified at 53 Pa.C.S. §1-101 et seq. The First-Class Township Code, P.L. 1206, Art. 1, §101, was re-enacted, revised,, amended and consolidated May 27,1949 at P.L, 1955, §1 and is now codified at 53 Pa.C.S. §55101 et seq.