author:
NEWMAN, Member,
     CUNNINGHAM III, Former Board Chair,

text:
    Office of Disciplinary Counsel v. Gallen

      Disciplinary Board Docket no. 8 D.B. 2002.
    March 15, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

NEWMAN, Member,

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

I. HISTORY OF PROCEEDINGS

On January 23, 2002, the Supreme Court of Pennsylvania entered an order temporarily suspending respondent, Kenneth Gallen, from the practice of law and referring the matter to the Disciplinary Board pursuant to Rule 214(f)(1), Pa.R.D.E.

Petitioner, Office of Disciplinary Counsel, filed a petition for discipline against respondent on February 22, 2002, charging respondent with violations of the ethical rules as a result of three criminal convictions for driving under the influence and related crimes.

A disciplinary hearing was held on December 13,2002, before Flearing Committee 1.10 comprised of Chair Marc S. Raspanti, Esquire and Member Nancy B.G. Lassen, Esquire. The parties stipulated that Member Luther E. Weaver III, would participate by reading the notes of testimony and conferring with the other committee members. Respondent was represented by John Rogers Carroll, Esquire. Petitioner introduced a stipulation of fact and 42 exhibits. Respondent presented his own testimony, as well as that of his psychiatrist and several individuals familiar with respondent’s involvement in Alcoholics Anonymous.

Following briefing by the parties, the committee filed a report on May 9,2003, and recommended that respondent be suspended from the practice of law for a period of one year and one day retroactive to the date of the temporary suspension.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of July 16, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207, Pa.R.D.E., with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to the practice of law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Pa. R.D.E.

(2) Respondent was born in 1962 and was admitted to practice law in Pennsylvania in 1990. Respondent does not maintain an office for the practice of law. He currently resides at 7200 Gillespie Street, Philadelphia, PA 19135. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no history of prior discipline.

(4) By order of the Supreme Court of Pennsylvania dated November 17, 2000, respondent was transferred to inactive status for failure to comply with Continuing Legal Education requirements.

(5) By order dated November 30, 2000, respondent was again transferred to inactive status for failure to comply with annual registration requirements.

(6) Respondent did not file an Attorney’s Annual Fee Form for fiscal year 2000-2001 and failed to pay his annual registration fee, as required by Rule 219, Pa. R.D.E.

(7) Respondent failed to meet the Continuing Legal Education requirements imposed by the Supreme Court of Pennsylvania for the compliance period May 1,1999-April 30, 2000.

(8) The board notified respondent of the entry of the Supreme Court orders of November 17, 2000 and November 30, 2000, and of the requirement that he comply with Pa.R.D.E. 217; and forwarded documents explaining his duties with respect thereto.

(9) Respondent failed to file with the board a statement of compliance under Rule 217 following the entry of the November 2000 orders.

Charge I: The Lycoming County Conviction

(10) On October 1, 1997, respondent was arrested in Lycoming County and charged with two counts of driving under the influence of alcohol, criminal mischief, and disorderly conduct.

(11) On November 10,1997, respondent entered pleas of guilty to two counts of DUI and one count of disorderly conduct.

(12) By order dated March 23, 1998, the court sentenced respondent on the DUI conviction to 30 days to 23 months imprisonment, with the first 30 days to be served at the Pre-Release Center, credit for 30 days served at a rehabilitation facility, and parole under the supervision of the county probation office; sentenced respondent on the disorderly conduct offense to pay a fine of $150; ordered respondent to attend and complete DUI classroom education and DUI treatment, and to surrender his driver’s license; dismissed the charge of criminal mischief.

(13) Respondent failed to timely report his conviction to the Disciplinary Board and did not do so until August 24, 2001.

(14) Respondent complied with his sentence.

Charge II: The Philadelphia County Conviction

(15) On November 22,1999, respondent was arrested in Philadelphia County, after he engaged in a “game of chicken” with another driver.

(16) He was charged with the offenses of recklessly endangering another person, driving under the influence of alcohol, and obstructing a highway, to which he entered guilty pleas on February 27, 2001.

(17) On August 14, 2001, respondent was sentenced on the recklessly endangering and obstructing a highway convictions to a suspended sentence. On the DUI conviction he was sentenced to 90 days to one year in the county prison, with credit for time served of 118 days in a rehabilitation facility and immediate parole.

(18) By letter to the Disciplinary Board dated August 24, 2001, respondent reported the Philadelphia and Lycoming County convictions.

Charge III: The Montgomery County Conviction

(19) On May 5, 2000, respondent was arrested in Montgomery County after he drove into a wall at a speed of 95 miles per hour with his two children in the front seat.

(20) He was charged with the offenses of violation of speed restrictions, maximum speed limits and minimum speed and racing on highways; reckless driving; careless driving; driving without lights to avoid identification or arrest and violation of required position and method of turning; DUI; aggravated assault by vehicle while DUI; failure to utilize restraint systems; and REAP (two counts).

(21) On October 2,2001, respondent entered pleas of guilty to DUI and aggravated assault while DUI, which is a felony of the second degree. The remaining charges were dismissed.

(22) Respondent was sentenced on the conviction of DUI to serve 6-23 months in county prison, and on the conviction of aggravated assault while DUI, to serve four years of probation consecutive to his parole on the DUI.

(23) By letter dated October 8, 2001, respondent advised the Disciplinary Board of this conviction.

(24) In compliance with his sentence, respondent participated in Gaudenzia Inc., Common Ground in-patient program, to which he was admitted on March 23, 2001, and Concept 90 program, to which he was transferred on April 20, 2001, and successfully completed on July 19, 2001; attended AHSS atLivengrin; paid costs; and served four months and three weeks in the Montgomery County jail, from which he was released in March 2002.

(25) At the time of the disciplinary hearing, respondent remained on active probation for the Montgomery and Philadelphia County convictions.

(26) In addition to the instances which are the subject of this petition for discipline, respondent was arrested on no fewer than five occasions between March 1987 and July 1995.

(27) Philadelphia, PA: March 17, 1987, respondent charged with DUI, simple assault (3 counts), REAP (3 counts) and criminal mischief; February 1988, acquitted of assault, REAP and criminal mischief; August 30, 1988, DUI dismissed after compliance with bail conditions of abstaining from alcohol, obtaining alcohol counseling, desisting from driving, and participating in community service.

(28) Bucks County, PA: May 1987, respondent charged with scattering rubbish, public drunkenness, disorderly conduct; June 1987. paid lines and costs totaling $123.50.

(29) Lycoming County, PA: July 1995, charged with DUI (75 Pa.C.S. §§3731 (a)(1). (a)(4) and (a)(5)(i)) (BAC .19 percent) and failure to remain within lane (75 Pa.C.S. §3309); January 16, 1996, license surrendered for suspension period of two months; ARD agreement; February 1997, ARD granted upon respondent’s completion of community service.

(30) New Castle County, DE: October 1999, charged with DUI as a result of an accident caused when respondent failed to stop at a stop sign and crashed his vehicle; pending.

(31) New Castle County, DE: January 2000, charged with DUI, careless driving, after his vehicle was stuck in snow as he attempted a U-turn on 1-495; dismissed.

(32) Respondent has a lengthy history of alcoholism dating from his teenage years, more than 20 years ago, which has been characterized by intermittent periods of binge drinking and sobriety.

(33) Both respondent’s immediate and extended family suffer from alcoholism. In addition to respondent’s adoptive mother, his grandparents are also alcoholics. While respondent’s adoptive father was not an alcoholic, his childhood was affected by the divorce of his adoptive parents, after which his mother married an alcoholic.

(34) Respondent dropped out of high school in the 11th grade and joined the military service, from which he was honorably discharged.

(35) When respondent was 21 years old he attended his first AA meeting, and thereafter decided to go to college. He quit drinking and entered St. Joseph’s University where he completed an undergraduate degree in philosophy with highest honors and was valedictorian of his class.

(36) As a result of respondent’s undergraduate success, he received numerous scholarship offers and attended Yale Law School, from which he graduated in 1990.

(37) Respondent remained sober until the end of his senior year in college, when he was arrested two times for DUI.

(38) After law school, respondent was hired as an associate at a prominent Philadelphia law firm. Less than a year later, he moved to Williamsport and became a public defender in Lycoming County. In 1993, respondent formed a legal partnership in Williamsport. This partnership lasted less than one year, after which respondent became a solo practitioner in the Williamsport area in 1993, primarily with a criminal defense practice.

(39) Respondent’s second DUI occurred in Williams-port in October 1997. After 30 days of treatment for alcoholism at Marworth, he then remained sober for approximately 20 months.

(40) As a result of the October 1997 DUI, respondent lost his driver’s license. He was unable to continue his law practice in the Williamsport area without a license, which led him to return to Philadelphia in June 1998.

(41) The day after respondent moved back to Philadelphia, his wife left their residence and initiated divorce proceedings. The divorce, which did not conclude until 2001, was bitter and emotionally difficult for respondent.

(42) Respondent maintained sobriety until the summer of 1999. By this time, however, respondent was no longer in therapy, taking medication for depression, nor receiving any treatment for his alcoholism.

(43) With respect to the May 5, 2000 arrest, respondent drove into a wall at 95 miles an hour with his two children in the front seat of his car. After hospitalization, respondent was disabled for a year as a result of injuries suffered in that accident. Respondent’s children were treated at hospitals and released within days after the accident to return to school.

(44) Respondent also used cocaine and heroin from 1999 to 2001.

(45) By March 2001, respondent began drinking again. In addition, he was using illegal controlled substances.

(46) In 1995, respondent was diagnosed with depression and prescribed the first of several medications for that condition. From 1995 until he had the accident in Montgomery County involving his children in May 2000, respondent was placed on four different and ineffective antidepressants by various psychiatrists.

(47) In August 2000, respondent was diagnosed for the first time as having bipolar disorder. Since 2001, respondent has been treated by four providers for this disorder; there has not been agreement among these providers about the extent to which respondent’s bipolar disorder plays a role in his addiction, or the appropriate treatment for that disorder.

(48) Various medications have been prescribed for respondent’s bipolar disorder that either were ineffective or had adverse side effects. In 2002, a different pharmacologic regimen was prescribed to treat the depression aspects of his bipolar disorder.

(49) Although the medication prescribed for respondent in 2002 has shown some initial efficacy, identifying effective pharmacologic treatment for respondent, monitored by consistent providers, is an ongoing effort.

(50) Respondent presently attends at least two to three AA meetings per week, in addition to Lawyers Concerned for Lawyers meetings.

(51) Since March 2002 when respondent was released from jail in Montgomery County, he has brought his child support obligations up to date and entered into custody agreements that permit him to visit with his children every other weekend. He has attempted to develop a more cooperative relationship with his former wife regarding the care and custody of his children, which has diminished the stress and disruption caused by his divorce.

(52) Therapy and medications received by respondent have assisted him in resolving his anger and approaching recovery with new resolve; the diagnosis of, and effort to effectively treat, his bipolar disorder has been a significant aspect of his current recovery effort.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rule of Disciplinary Enforcement:

(1) Pa. R.D.E. 203(b)(1) — Respondent’s convictions for driving under the influence of alcohol, recklessly endangering another person, and aggravated assault by vehicle while driving under the influence, constitute convictions of serious crimes and are an independent basis for discipline.

IV. DISCUSSION

This matter is before the Disciplinary Board upon a petition for discipline charging respondent with violations of the Rules of Disciplinary Enforcement based upon his convictions for driving under the influence, recklessly endangering and aggravated assault by vehicle while driving under the influence of alcohol.

The sole issue to be determined is the extent of final discipline to be imposed since the disciplinary proceeding is based upon respondent’s conviction of a serious crime. In order to determine the discipline, the events surrounding the criminal charge must be taken into account. Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999). All relevant aggravating and mitigating facts must be considered and evaluated. Office of Disciplinary Counsel v. Chung, 548 Pa. 108, 695 A.2d 405 (1997).

Respondent’s convictions arose from three separate incidents (in 1997, 1999 and 2000) in which respondent was arrested as a result of accidents caused when he drove while intoxicated, for which he was convicted in 1998 and twice in 2001. The third accident resulted in serious injury to respondent and one of his young daughters, and minor injury to another young daughter. In addition to these three convictions, respondent has been arrested on no fewer than five other occasions for driving under the influence of alcohol.

Respondent’s conduct arises directly from his history of alcoholism, and is also impacted by his continuing struggles with the psychiatric conditions of depression and bipolar disorder. Respondent’s history of alcohol abuse goes back to his high school years. Almost as long as his history of alcohol abuse is his record of attempts to obtain treatment for his problems. He first attended Alcoholics Anonymous when he was 21 years old. After each treatment attempt, respondent remained sober for a period of time, often for several years at a time, followed by periods of renewed drinking and arrests for DUI. In 1995, after an arrest in Lycoming County, respondent was diagnosed as suffering from depression for which he was prescribed medications in 1995 and 1996, in addition to psychological counseling.

After moving to Philadelphia in 1998 and the dissolution of his marriage, respondent discontinued mental health treatment and began drinking again. Four DUI arrests followed in a period of seven months, which directly endangered respondent, his children, and members of the public. In August 2000, after the incident that endangered the lives of his children, respondent was diagnosed with bipolar syndrome. Various medications were prescribed, as well as therapy. However, respondent began drinking again in March 2001, as well as using heroin and cocaine.

More recently, respondent has completed an inpatient stay at Gaudenzia House and Concept 90 in July 2001. He began participating in meetings of Lawyers Concerned for Lawyers and AA in the summer of 2001, although this participation was interrupted by his serving a prison sentence in Montgomery County for one of the above convictions. Respondent has remained sober since his release from the rehabilitation facility. Respondent is currently under the care of Dr. Charles V. Giannasio, who has prescribed new medication for his bipolar disorder, to which respondent is successfully responding.

Respondent contends that due to his alcoholism and psychiatric disorders he is entitled to mitigation pursuant to Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989). In order for a psychiatric infirmity to be considered in mitigation in a disciplinary proceeding, the respondent must establish that the disorder was a causal factor in producing the misconduct. Braun, 520 Pa. at 160, 553 A.2d at 895. Respondent presented expert testimony that he was suffering from alcoholism and bipolar disorder during the relevant time frame and these impairments caused his misconduct.

Dr. Giannasio testified at the disciplinary hearing. He has been treating respondent since May 2002. Dr. Giannasio diagnosed respondent with alcohol dependence, cocaine dependence, bipolar disorder and personality disorder, not otherwise specified. Dr. Giannasio gave a detailed background of respondent’s history of substance abuse and mental health problems, relating the disorders to respondent’s criminal convictions and opining that the disorders caused respondent’s conduct.

Respondent currently meets with Dr. Giannasio every other week. Respondent is taking Wellbutrin SR. In Dr. Giannasio’s opinion, respondent has benefited from this medication, with his mood more optimistic, consistent, and less depressed. As long as respondent remains in treatment and has his medicine regimen managed, it is the doctor’s belief that he will continue to be free of legal infractions. Based on this evidence, respondent has satisfied the Braun standard and his alcoholism and psychiatric conditions will be considered in mitigation.

Disciplinary sanctions for convictions arising from driving under the influence and related crimes have ranged from private discipline to lengthy suspensions. Attorneys convicted of DUI who had a history of DUI arrests and convictions and demonstrated they were alcoholics, have generally been suspended for periods in excess of one year where the incident leading to the conviction involved an injury or fatality. In re Anonymous No. 113 D.B. 1996, no. 255 disciplinary docket no. 3 (Pa. July 17, 2000) (three-year suspension for conviction of two counts of reckless homicide, leaving the scene of an accident); In re Anonymous No. 41 D.B. 1999, no. 501 disciplinary docket no. 3 (Pa. June 26, 2000) (third DUI, no Braun, extensive prior history of discipline warranted a two-year suspension); In re Anonymous No. 128 D.B. 1996, no. 266 disciplinary docket no. 3 (Pa. March 25, 1998) (attorney suspended for one year and one day after conviction of three counts of DUI and failed to report conviction to board or show remorse); In re Anonymous No. 75 D.B. 92, 19 D.&C.4th 143 (1993) (attorney convicted of DUI and homicide by vehicle suspended for one year and one day).

The board finds that respondent’s misconduct was both serious and grave in nature and warrants a suspension of one year and one day, retroactive to January 23, 2002, the date of respondent’s temporary suspension. This sanction takes into account respondent’s mitigation for alcoholism and bipolar disorder while justly responding to the harm respondent’s conduct caused. There is also positive evidence of respondent’s recognition of his disorders and his desire to recover. His credible testimony establishes that he has accepted responsibility for his actions and has shown regret and remorse for the harm he has caused. Respondent’s current actions portray his desire to make positive changes in his life, through his ongoing efforts to obtain treatment, attend recovery meetings, and restore personal relationships.

For the reasons set forth above, the Disciplinary Board recommends that respondent be suspended from the practice of law for one year and one day, retroactive to January 23, 2002.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Kenneth Gallen, be suspended from the practice of law for a period of one year and one day, retroactive to January 23, 2002.

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

Board Members Cunningham, Sheerer, Wright, Cur-ran, Gentile and Flickstein dissent and would recommend a stayed suspension and probation with a sobriety monitor.

Board Member Raspanti recused in this matter.

DISSENTING REPORT AND RECOMMENDATION

CUNNINGHAM III, Former Board Chair,

March 15, 2004 — A majority of the board has recommended to the Supreme Court that respondent be suspended from the practice of law for a period of one year and one day, retroactive to January 23, 2002. Five members of the board, including myself, dissented and would recommend a stayed suspension and probation with a sobriety monitor.

The majority’s recommendation is simultaneously both too harsh and too lenient. It is too harsh in the sense that it subjects respondent to public discipline in the form of a suspension. It is too lenient in that it permits him to petition for reinstatement immediately with no further supervision. On the other hand, the minority recommendation would mean that so long as respondent follows the terms of probation and is supervised by a sobriety monitor, his discipline can remain private. It only becomes public if he violates the probation because in that case the stayed suspension would go into effect.

Respondent has no prior history of discipline. He has this one disciplinary complaint which is based on a conviction for driving under the influence of alcohol, recklessly endangering another person and aggravated assault by vehicle.

There is no allegation of wrongdoing or harm caused to any client. There is, however, a lengthy history of alcohol abuse with previous convictions for DUI.

Respondent is 42 years old. He dropped out of high school in the 11th grade and joined the military, from which he was honorably discharged. When he was 21 years old he attended his first A A meeting and thereafter decided to go to college. He quit drinking and entered St. Joseph’s University where he completed an undergraduate degree in philosophy with highest honors and was valedictorian of his class. He received numerous scholarship offers and attended Yale Law School from which he graduated in 1990. He has been treated for alcohol abuse and psychiatric problems. He currently attends, at least, two AA meetings per week in addition to Lawyers Concerned for Lawyers meetings.

The majority of the board finds that respondent met the Braun standard and is entitled to some mitigation in that regard because of his history of alcohol addiction and psychiatric disease.

The cases cited by the majority in themselves show that the majority recommendation is disproportionate to the discipline previously imposed by the court in similar cases. See majority report at pp. 16-17. Unlike the cases relied upon by the majority, respondent did not cause serious injury to anyone except himself. He was charged with recklessly endangering another person and aggravated assault because his two young children were in the car with him. However, there was no evidence of any serious injury to them. Unlike the case referred to by the majority, where the attorney was facing his third DUI, and had an extensive prior history of discipline, respondent in the instant matter has no prior history of discipline. Moreover, in a case where the attorney was convicted of DUI and homicide by vehicle, even where there was a death related to the DUI conviction, the attorney received only a suspension for a year and one day.

Without the additional charges of recklessly endangering another person and aggravated assault, we should be recommending a private reprimand with probation. The board routinely administers private reprimands for DUI convictions. This is true even where there is a prior history of DUI. See for example, In re Anonymous No. 77 D.B. 2000 (2001) (3rd conviction for DUI, prior private reprimand for a prior DUI, placed on probation for a period of two years). However, because of the other-charges, and keeping in mind the extensive mitigation evidence related to Braun, I recommend that the court do what it has done in the past, namely, impose a stayed suspension, with probationary terms that include alcohol rehabilitation and a sobriety monitor. See In re Anonymous No. 79 D.B. 94, 32 D.&C.4th 104 (1995) (respondent demonstrated diagnosis and nexus of alcoholism; despite prior discipline for vehicular assault and limited period of sobriety, three-year stayed suspension and probation with conditions); In re Anonymous No. 114 D.B. 90, 19 D.&C.4th 197 (1993) (three-year stayed suspension for attorney’s fifth DUI conviction and conviction of giving false reports to the police and leaving an accident scene, for which he was incarcerated; Brann nexus proven, respondent sober for three years at the time of the hearing).

This recommendation is consistent with the philosophy that the most serious discipline meted out by this court should be reserved for those lawyers who have harmed clients, or the legal system. Respondent is guilty of neither.

ORDER

And now, June 24, 2004, upon consideration of the report and recommendations of the Disciplinary Board and dissenting report and recommendation dated March 15, 2004, it is hereby ordered that Kenneth Gallen be and he is suspended from the practice of law in the Commonwealth of Pennsylvania for a period of one year and one day, retroactive to January 23, 2002, and he shall comply with all the provisions of Rule 217 Pa.R.D.E.

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


source: Caselaw Access Project

author: SHEERER, Member,

license: Public Domain

text:
    In the Matter of Denker

      Disciplinary Board Docket no. 52 D.B. 96.
    March 5, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SHEERER, Member,

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

HISTORY OF PROCEEDINGS

Petitioner, Aaron David Denker, filed a petition for reinstatement to the bar of Pennsylvania on May 2,2002. By order of the Supreme Court of Pennsylvania dated February 10, 1998, petitioner was disbarred from the practice of law retroactive to May 6, 1996.

A reinstatement hearing was held on January 24,2003, before Hearing Committee 1.09 comprised of Chair Denise Joy Smyler, Esquire, and Members Thomas G. Wilkinson Jr., Esquire and Jerry Michael Lehocky, Esquire. Petitioner was represented by James C. Schwartz-man, Esquire. Petitioner testified and presented the testimony of nine witnesses.

The Hearing Committee filed a report on May 15, 2003, and recommended that the petition for reinstatement be granted.

This matter was adjudicated by the Disciplinary Board at the meeting of July 16, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was born in 1951 and was admitted to the practice of law in Pennsylvania in 1977. His current address is 50 Cohasset Lane, Cherry Hill, NJ 08003.

(2) On October 27, 1995, petitioner executed a plea agreement and entered a guilty plea to one count of money laundering in violation of 18 U.S.C. §1956(a)(3).

(3) The facts underlying petitioner’s criminal conviction are as follows:

(a) From about July 1993 to October 1993, petitioner, in exchange for a fee, knowingly and willingly assisted his client and client’s associate in a scheme to launder a total of $100,000 of illegal proceeds.

(b) The scheme consisted of converting cash obtained from illegal drug activities into various negotiable instruments, each in a denomination of less than $10,000.

(c) Petitioner was paid a total of $6,500 from his client for these illegal services.

(d) On July 28,1993, petitioner delivered to his client 53 American Express and Merchant Express money orders totaling $12,000; three Midlantic cashier checks totaling $24,000; and two personal checks totaling $14,000.

(e) On October 20, 1993, petitioner delivered to his client 54 American Express and Merchant Express money orders totaling $15,000; one personal check for $3,000; and four Midlantic cashier checks totaling $32,000.

(4) On February 6, 1996, petitioner was sentenced to a term of 27 months of imprisonment, together with a $20,000 fine and two years of supervised release upon expiration of the prison term.

(5) Petitioner served 19 months of his sentence and thereafter served approximately four months in a halfway house in Philadelphia on a work release program.

(6) Petitioner has completed his sentence and has met all of the conditions of his supervised release.

(7) Petitioner understood at the time of the transactions that the person directing the transactions was a drug trafficker.

(8) Petitioner performed these transactions because he believed that this drug trafficker would be a continuing source of legal business for him.

(9) Petitioner claimed that he did not fully understand the prohibition on money laundering at the time of the offense.

(10) Petitioner was disbarred in Pennsylvania by order of the Supreme Court dated February 10, 1998, retroactive to May 6, 1996, the date of his temporary suspension from practice.

(11) At the time of his release from the halfway house, petitioner was employed as a loan officer in a mortgage finance company. From October 2000 to the present, petitioner has been employed by Eastern Mortgage Services in Marlton, New Jersey.

(12) Since the time of his release and due to the financial strain on his family, petitioner has worked long hours to pay off his debts and earn income.

(13) Petitioner successfully completed all of the required continuing legal education courses. He subscribes to Trial magazine, Mortgage Originator, and the Camden County Bar magazine. He also reads several other bar journals.

(14) Since his release from incarceration, petitioner has been involved in community and civic service, including working with school children and participating in programs through Jewish Family Services.

(15) Petitioner admits that, at the time of the misconduct, motivation for new clients and greed clouded his thinking. He further admits that his actions were “stupid and careless.” He has taken full responsibility for his actions.

(16) Nine character witnesses testified on petitioner’s behalf. These witnesses included fellow attorneys and members of petitioner’s community. The testimony indicated that petitioner has a reputation as a truthful and law-abiding person who has demonstrated remorse for his past actions.

(17) If reinstated, petitioner plans to concentrate his practice in the mortgage business with an emphasis on litigation regarding residential and commercial transactions.

III. CONCLUSIONS OF LAW

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

(2) Petitioner has been disbarred since May 6, 1996, approximately seven years. This is an insufficient amount of time to dissipate the detrimental impact of petitioner’s misconduct on the integrity and standing of the bar, the administration of justice, and the public interest.

IV. DISCUSSION

This matter comes before the Disciplinary Board on a petition for reinstatement filed by Aaron David Denker. Petitioner was disbarred by order of the Supreme Court of Pennsylvania dated February 10,1998. The order made the disbarment retroactive to May 6, 1996, the date of petitioner’s temporary suspension. Petitioner bears the burden of proof by clear and convincing evidence that he is qualified for re-admission. Pa.R.D.E. 218(c)(3)(i).

Petitioner’s request for reinstatement to the bar after disbarment is initially governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinaiy Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). As a threshold matter, the board must determine whether petitioner has demonstrated that his breach of trust was not so egregious that it precludes him from reinstatement.

It is helpful for the board to examine the circumstances surrounding the facts which resulted in petitioner’s conviction in making the critical determination of whether petitioner has met the Keller test. Petitioner engaged in a scheme whereby he laundered money for a client who was known to him as a drug trafficker. Petitioner accepted cash from this client and exchanged it for a series of checks and money orders in denominations of less than $10,000, in order to avoid IRS reporting requirements. Petitioner knew that the cash he received was the proceeds of illegal drug transactions. Petitioner was paid $6,500 for his services. Petitioner explained that he performed these transactions because he believed that the drug trafficking client was going to be a continuing source of legal business and income for him.

Although this misconduct was reprehensible and clearly in violation of the law, the board concludes that it is not so egregious as to preclude petitioner from reinstatement. Indeed, petitioner’s conduct is similar to that of other attorneys who have been disbarred and who have sought and been granted reinstatement. See In re Anonymous No. 17D.B. 90, 29 D.&C.4th 124 (1995) (conduct of attorney disbarred after conviction of paying a kickback to union did not preclude reinstatement); In re Anonymous No. 72 D.B. 86, 33 D.&C.4th 567 (1996) (conduct of attorney who aided client in obtaining substance necessary for manufacture of methamphetamines, and who engaged in criminal act for monetary profit, reinstated after nine years); In re Anonymous No. 47 D.B. 82, 29 D.&C.4th 304 (1995) (attorney disbarred after conviction for conspiracy to distribute LSD, distribution of LSD, and aiding and abetting interstate travel to permit an unlawful activity reinstated after 13 years).

Having concluded that petitioner’s misconduct is not so egregious as to preclude the board from considering his petition for reinstatement, the board must now determine whether petitioner has met his burden of proving by clear and convincing evidence that his resumption of the practice of law at this time would not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest, and that he has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania. Pa.R.D.E. 218(c)(3)(i). In order to make this determination, the board must consider the amount of time that has passed since petitioner was disbarred, as well as his efforts at rehabilitation. In re Verlin, 557 Pa. 47, 731 A.2d 600 (1999).

Petitioner was disbarred retroactive to May 1996 and has been without a license to practice law for approximately seven years. From March of 1996 until October 1997, he served his prison sentence at the federal prison in Schuylkill County. From October 1997 to approximately February 1998, he was in a halfway house in Philadelphia and did work release. The years since the termination of his prison sentence have been spent working to pay debts and restore order to his life. Petitioner has worked in the mortgage business and has been employed by Eastern Mortgage Services since October 2000. He has attended his required CLE courses and reviewed legal journals. He has been active with Jewish Family Services.

It is evident that petitioner is working to rehabilitate himself, yet the board is of the opinion that petitioner is not ready for reinstatement. The misconduct committed by petitioner showed an egregious disregard for his responsibilities to the legal profession and society in general. Petitioner knowingly and willingly engaged in a money laundering scheme for a client who trafficked drugs because he believed that the client would represent an ongoing business opportunity. Petitioner was motivated by pure greed and appeared to have no qualms about committing criminal acts to further his monetary desires. Given the nature of petitioner’s acts, the board believes that permitting his re-admission to the bar after only seven years of disbarment would do further damage to the public trust. In re Anonymous No. 50 D.B. 94, no. 42 disciplinary docket no. 3 (Pa. January 31, 2002).

The board recommends that the petition for reinstatement be denied.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that petitioner, Aaron David Denker, be denied reinstatement to the practice of law.

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

Board Members Cunningham, Rudnitsky, McLaughlin and Curran dissented and would grant reinstatement.

CUNNINGHAM III, Former Board Chair, March 5, 2004—

DISSENTING REPORT AND RECOMMENDATION

A majority of the board has recommended to the Supreme Court that respondent be denied reinstatement to the practice of law. Four members of the board, including myself, dissented from the recommendation of the board. Instead, we adopt the recommendation of the Hearing Committee and recommend that petitioner be reinstated.

FINDINGS OF FACT

The majority report contains 17 findings of fact. Finding no. 16 is seriously flawed, in that it fails to state a finding. Instead, it merely describes testimony presented on petitioner’s behalf.

In contrast, the-Hearing Committee, in its report, summarized in great detail the extensive testimony presented on behalf of petitioner and, in the discussion section of its report, found as follows:

“In sum, no witness testified that petitioner was untrustworthy or unfit to resume the practice of law. The large number of live witnesses and reference letters support the view that petitioner has developed a reputation in the community as an honest and law abiding person in whom other lawyers and clients may place their trust.” (Hearing Committee report p. 15.)

The record includes 33 letters with evidence of petitioner’s good character. Nine character witnesses testified.

The majority report at finding of fact no. 14 understates the findings of the Hearing Committee as to petitioner’s community and civic service. In contrast, the Hearing Committee found that:

“Petitioner has also demonstrated his commitment and dedication to his community through working with underprivileged children in the Camden School District on student mock trials; he participates in Jewish Family Services, clothing drives and fundraising and city beautification projects, N.T. at 188-92.” (Hearing Committee report p. 14.)

Furthermore, the Hearing Committee described petitioner’s employment and, more importantly, stated their finding with regard to his honesty and integrity, as follows:

“Since that time, petitioner has secured employment as a loan officer in the mortgage finance business. He has demonstrated, and character witnesses have so testified, that he is well respected in the mortgage banking industry, and is recommended for his honesty and integrity. See p. 1 at tab 4.” (Flearing Committee report p. 14.)

The maj ority report states at finding of fact no. 15 that petitioner has taken full responsibility for his actions. Flowever, the Flearing Committee went much further than that and found as follows:

“Petitioner has testified that even though at the time of arrest he resisted an admission of wrongdoing, he has completely and unequivocally admitted his guilt, accepted responsibility for his actions and admits that what he was doing at the time was wrong and unlawful. N.T. 170, 172, 193-95. Furthermore, the recurring theme through each character witness who testified about petitioner’s reputation was that he was and still is an honest, truthful, law-abiding person.” (emphasis added) (Flearing Committee report p. 15.)

The evidence is simply overwhelming that the crime committed by petitioner was an aberration in an otherwise unblemished legal career and commendable life. The FTearing Committee so found and the board has not explained how or why that finding should be ignored.

LENGTH OF DISBARMENT

The only reason the board gives for recommending denial of reinstatement is that, “Given the nature of petitioner’s acts, the board believes that permitting his re-admission to the bar after only seven years of disbarment would do further damage to the public trust.” Board report at p. 9. Petitioner was disbarred retroactive to May 6, 1996. That means that he has been out of the profession for approximately eight years.

The court has reinstated lawyers who have been out for less time, even where the acts committed by them have been more serious. See, for example, In re Anonymous No. 104 D.B. 90, 34 D.&C.4th 304 (1996) (Attorney stole client funds. Attorney disbarred on consent February 27, 1991. Attorney reinstated by court order March 1, 1996.); In re Anonymous No. 17 D.B. 90, 29 D.&C.4th 124 (1995) (Attorney convicted of racketeering and bribery. Attorney disbarred January 30, 1990. Attorney reinstated by court order November 7, 1995.); In re Anonymous 36 D.B. 88, 24 D.&C.4th 519 (1994) (Attorney disbarred as a result of conviction of distributing cocaine January 26, 1988. Attorney reinstated by court order September 13, 1994.).

Petitioner in the instant matter did nothing to harm his clients, he stole no money from them. Instead, his crime was that he was helping them launder money. His clients were drug dealers, but petitioner was not involved in their illegal drug activity. There is simply no reason on this record why petitioner should be denied reinstatement at this time and be required to go through this process again. There is no reason why he hasn’t served a sufficient length of disbarment. If there were, we would expect that the Office of Disciplinary Counsel would have voiced some objection or filed an exception to the Hearing Committee’s report.

Board Members Rudnitsky, McLaughlin and Curran join in this dissent.

ORDER

And now, May 28, 2004, upon consideration of the report and recommendations of the Disciplinary Board and dissenting report and recommendation dated March 5, 2004, the petition for reinstatement is granted.

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

Madam Justice Newman dissents and would deny reinstatement.

      . Office of Disciplinary Counsel filed no exceptions to the report of the Hearing Committee recommending reinstatement.


author: NANOVIC, J.,

text:
    McGuckin v. E.J. Kirkpatrick Consulting Inc.

      C.P. of Carbon County,
    no. 03-3164.

      Gerald F. Strubinger, for plaintiffs.

      Michael T. Foster, for defendants.

      John W. Dornberger, for claimant Westfield Ins. Co.
    October 19, 2004
   NANOVIC, J.,

The defendants, E.J. Kirkpatrick Consulting Inc. and Ericka Kirkpatrick, have appealed from our order dated July 27, 2004, dismissing defendants’ objections to the claimant’s, West-field Insurance Company’s, discovery requesting the production of various documents and directing defendants to comply with the request within 30 days. This opinion is in support of that order. See Pa.R.A.P. 1925(a).

PROCEDURAL AND FACTUAL BACKGROUND

In February 2003, the plaintiffs, Steven McGuckin and Nancy D. McGuckin, his wife, and Rodney Gilbert, learned that their property at 1542 Strauss Valley Road, Lehighton, Carbon County, Pennsylvania, was contaminated with heating oil leaking from an above-ground storage tank located on the property. (Plaintiffs’ complaint, paragraph 5.) Plaintiffs notified their homeowners insurance company, Westfield, of this problem, whereupon Westfield contracted with defendants to provide environmental services, including, but not limited to, soil testing and analysis, disposal of contaminated soil and water, and final grading and restoration of the property. (Plaintiffs’ complaint, paragraphs 6 and 7; Westfield’s complaint, paragraph 35.)

At some point in performing these services, defendants allegedly billed and demanded payment from plaintiffs for work which was not completed. (Plaintiffs’ complaint, paragraph 9.) When defendants did not receive payment, defendants ceased work, leaving plaintiffs’ property in a partially excavated and unfinished condition. (Plaintiffs’ complaint, paragraphs 9 and 10.) Plaintiffs next filed suit against defendants at the district justice level and obtained a judgment against the defendants in the amount of $6,500. It is this judgment which has been appealed by defendants.

In plaintiffs’ complaint filed in response to the appeal taken by the defendants, plaintiffs assert a claim for breach of contract pursuant to the agreement between Westfield and defendants for defendants to clean up plaintiffs’ property. (Plaintiffs’ complaint, paragraphs 7, 13, 15,16 and 18.) Thereafter, on December 9,2003, defendants, through their counsel, Michael T. Foster, Esquire, filed a petition for interpleader alleging, in pertinent part, that the contractual obligations on which plaintiffs’ suit is based arise out of the contract between the defendants and Westfield; that plaintiffs are, at best, third-party beneficiaries of that contract; and that Westfield as the actual party to the contract has made, or is expected to make, a demand upon the defendants as a result of which defendants will be subjected to double or multiple liability upon the same claim asserted by the plaintiffs. (Petition for interpleader, paragraphs 11-15.)

Upon receipt of defendants’ petition, we issued a rule on plaintiffs to show cause as to why the relief requested by the defendants should not be granted. This rule was made absolute on January 20,2004, after the return date of the rule had expired and no response had been received. Our order making the rule absolute, in the form provided by Pa.R.C.P. 2304, directed Westfield as a party plaintiff to file a complaint within 20 days after being served with copies of the petition for interpleader and plaintiffs’ complaint.

On March 31, 2004, Westfield filed its complaint against defendants. In this complaint, Westfield alleges, inter alia, that the contamination of plaintiffs’ property by the heating oil released from the above-ground storage tank was a reportable release as defined by the Pennsylvania Department of Environmental Protection (DEP) (complaint, paragraph 21); that on or about February 2003, Westfield entered an agreement with defendants for defendants to test, assess and clean up the contamination of plaintiffs’ property (complaint, paragraph 35); that, pursuant to the agreement, defendants agreed to test plaintiffs’ property to determine the area and extent of the contamination and to develop a plan for the removal and cleanup of the contamination, all to be completed in accordance with the requirements of DEP (complaint, paragraphs 23, 25, 27, 28 and 39); that part of the services defendants agreed to provide included the preparation of a report or assessment of the site contamination to be submitted to Westfield and DEP for review and evaluation so as to ensure compliance with DEP’s regulatory requirements (complaint, paragraph 39); that defendants have failed to provide the results of its soil sampling and assessment of the project site to either Westfield or DEP and have further failed to provide either with a closure report or assessment (complaint, paragraphs 45-47); that Westfield believes defendants have not properly identified or classified contaminated soil on plaintiffs’ property and that, in consequence, the amount of soil defendants excavated from plaintiffs’ property, an amount in excess of 600 tons, exceeds that required to remediate the property (complaint, paragraphs 50 and 51); that Westfield will be required to employ additional environmental consultants to correct and complete work that defendants were to perform (complaint, paragraphs 53 and 54); that defendants falsely assured Westfield they were capable and competent to provide environmental services which they in fact were not qualified to perform and that, in billings to Westfield, defendants misrepresented the true qualifications of the persons actually performing such services (complaint, paragraphs 63-76); and that, to date, Westfield has paid defendants in excess of $ 133,000 for services performed at the project site (complaint, paragraph 33). Westfield’s complaint asserts claims for breach of contract (Count I), breach of warranty (Count II), fraud and misrepresentation (Count III), breach of the implied duty of good faith and fair dealing (Count IV), and replevin (Count V), the latter requesting copies of the reports and analyses for which defendants billed Westfield and which Westfield claims to have paid.

On March 11, 2004, Westfield served a request for production of documents upon defendants to which defendants objected on or about April 16,2004. Westfield’s request sought production of, among other things, all field notes, sample location drawings, waste manifest acceptance documents, soil and groundwater test results with supporting documentation, and draft reports. With the exception of responding that they did not know what exhibits or experts would be introduced at the time of trial, defendants’ response to every document request read as follows:

“This inquiry is objected to as being, but not limited to, well beyond the scope of the complaint and/or its pleadings in this matter. While it is acknowledged that plaintiff Westfield Insurance has filed its own complaint in this matter, it was filed without leave of court and is therefore improper under the Rules of Civil Procedure.”

Westfield next filed a motion to strike defendants’ objections and to compel responses to Westfield’s request for production of documents on May 7, 2004. In this motion, Westfield asserted that the documents sought are material and relevant to each of its claims against the defendants.

A rule to show cause with respect to Westfield’s motion was issued on May 11, 2004, and, on June 1, 2004, defendants filed their responses to the motion. Defendants’ answer does not challenge the material facts of the motion but argues that the claims made by Westfield in its complaint are beyond the scope of those contained in plaintiffs’ complaint and are therefore improper, and that Westfield seeks through the discovery process to obtain and to benefit from the work and services provided by defendants without paying for this work. In its motion, Westfield alleges that because it has incurred and will continue to incur costs and fees in retaining another environmental consultant to complete the work defendants were to perform, and in order to ascertain the full measure of its damages as well as to avoid duplication of services and mitigate its damages, it is important that it be permitted to obtain and review the documents it has requested to determine exactly what work was performed by defendants and what work remains to be done. (Motion to compel, paragraphs 27-29.)

Hearing/argument on Westfield’s motion was originally scheduled for July 2, 2004. Defendants requested a continuance of this date, which request was opposed by plaintiffs and Westfield. By order dated June 30,2004, we granted defendants’ continuance request and, in the same order, rescheduled the matter to be heard on July 27, 2004, at 9 a.m.

On July 27, 2004, counsel for the plaintiffs and for Westfield appeared in court; defendants’ counsel did not. Following argument, and after noting that defendants had failed to file any legal memorandum in support of their opposition to the motion, in our order dated the same date we granted the motion and directed defendants to provide full and complete responses to Westfield’s document requests within 30 days. Defendants have filed a timely appeal of this order to the Pennsylvania Superior Court.

DISCUSSION

A. Appealability of Order

Preliminarily, we seriously question the appealability of the order in question. Under the final judgment rule, a party aggrieved by a decision in a civil case has no right to appeal that decision until such time as final judgment as to all claims and as to all parties has been entered. Pa.R.A.P. 341(a). Generally, discovery orders are not appealable as they do not dispose of the litigation. Makarov v. Lukenda, 856 A.2d 163, 164 (Pa. Super. 2004); see also, PECO Energy Co. v. Insurance Company of North America, 852 A.2d 1230, 1233 (Pa. Super. 2004).

The order appealed from is one directing compliance with discovery requests and is clearly non-dispositive of the case. Defendants argue, however, that the appeal falls within the “collateral order” exception to the final judgment rule. This exception has been codified in Pa.R.A.P. 313. For an order to fall within the collateral order doctrine and become immediately appealable, all of the following must exist: (1) the order appealed from must be separable from, and collateral to, the main cause of action; (2) the right involved must be too important to be denied review; and (3) the question presented must be such that if review is postponed until a final judgment is rendered in the case, the claimed right will be irreparably lost. Pa.R.A.P. 313(b); see also, Makarov v. Lukenda, 856 A.2d at 164. Only if an issue can be decided without reference to the underlying claim is it separable from, and collateral to, the main cause of action. Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547, 551-52 (1999) (holding also that the second prong of the test involves a determination that the issue is important not only to the particular parties but to rights which go beyond the particular litigation at hand and involve interests deeply rooled in public policy which should not be compromised notwithstanding the efficiency interests underlying adherence to the final judgment rule).

In this case, there is no claim that the information sought is protected by the attorney-client, work product or trade secret privileges. Cf. PECO Energy Co., 852 A.2d at 1233 (“Appellate review is appropriate when a colorable claim of privilege is asserted.”). Instead, the information sought and which is objected to by defendants is inextricably intertwined not only with the issue of whether defendants have breached their agreement with Westfield, but also with the extent and nature of any damages which may have been sustained by such breach. Since the agreement on which Westfield premises its breach of contract claim against defendants is the same agreement on which plaintiffs base their claim of breach of contract, and since the claim for damages of both plaintiffs and Westfield, at least as alleged in defendants’ petition for interpleader, overlaps, it logically follows that the information sought by Westfield with respect to its claim for breach of contract is, if not directly “relevant to the subject matter involved” in both claims, is at least “reasonably calculated to lead to the discovery of admissible evidence” in both. Pa.R.C.P. 4003.1. Consequently, the order on appeal is neither separable from, nor collateral to, the main cause of action and does not meet the first prong of the collateral order test. As such, defendants have appealed from a non-appeal able interlocutory order. See also, Makarov v. Lukenda, supra (holding that order compelling discovery of information regarding the extent of plaintiff’s injuries in personal injury litigation pertains directly to the ultimate issue in the underlying action and is therefore interlocutory and not appealable).

(B) Propriety of Discovery’ Requests

Addressing next the merits of the defendants’ appeal, in PECO Energy Co. v. Insurance Company of North America, the court, in language relevant to these proceedings, stated the following:

“The trial court is responsible for ‘[overseeing] discovery between the parties and therefore it is within that court’s discretion to determine the appropriate measure necessary to insure adequate and prompt discovering of matters allowed by the Rules of Civil Procedure.’ Hutchison v. Luddy, 414 Pa. Super. 138, 606 A.2d 905, 908 (1992). (citation and internal quotations omitted) Pennsylvania Rule of Civil Procedure 4003.1 states:
“Rule 4003.1 Scope of discovery generally. Opinions and contentions
“(a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party ....
“(b) It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
“Pa.R.C.P. 4003.1 (a)(b). See also, Lloyd v. CAT Fund, 573 Pa. 114, 821 A.2d 1230, 1236 (2003). Generally, discovery ‘is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.’ George v. Schirra, 814 A.2d 202, 205 (Pa. Super. 2002). (citations omitted)” 852 A.2d at 1233.

It is also not ground for objection that defendants may be entitled to additional payment for the work they performed under the contract with Westfield. Whether the contract was breached by either side and what damages have been sustained, if any, is directly at issue in this litigation. The documents Westfield requests are clearly relevant to these issues. For defendants to condition production of the documents on additional payments from either Westfield or the plaintiffs is in a very real sense placing the cart before the horse: defendants may or may not be entitled to additional payments depending not only on what the parties agreed to but also on whether defendants breached that agreement. Moreover, production of the documents requested by Westfield will in no way jeopardize defendants’ claim for any damages to which they may be entitled.

As already discussed, the information Westfield seeks is relevant not only to its own claim for breach of contract but also to that of plaintiffs’. To the extent defendants contend Westfield’s claims are inappropriate to this litigation, that Westfield’s claims are limited by amount and type to those asserted by plaintiffs, defendants appear to forget that they are the ones who, by their inter-pleader, invited the claims.

Rule 2303(a)(1) reads, “[t]he petition for interpleader shall allege ... that a claimant not a party of record has made or is expected to make a demand upon the defendant as a result of which the defendant is or may be exposed to double or multiple liability to the plaintiff and to such claimant as to all or any part of the claim asserted by plaintiff.” Pa.R.C.R 2303(a)(1). (emphasis added) This language, referring to the requirements of the allegations in the petition for interpleader, is not included in Rule 2309, which governs the statement of claim. Rule 2309 states that “each claimant interpleaded shall file a statement of claim against the defendant and any money or property paid or delivered by said defendant pursuant to an order of the court.” Pa.R.C.R 2309(a). The form of this order is provided for in Rule 2304. In accordance with such order, the claimant is made a party plaintiff to the proceeding and is enjoined from commencing or further prosecuting any action in any court against the defendant “to enforce in whole or in part any claim against the [defendant] set forth in [the petition for interpleader], except as a party to the [interpleader] action.” Pa.R.C.R 2304. (emphasis added) These rules when read in pari materia in no way act as a bar to claimant asserting additional claims arising out of the same subject matter or additional damages against the defendant in the statement of claim. Rather, Rule 2303(a) only acts as a bar to the granting of a petition for interpleader if the defendant fails to allege the potential for multiple liability.

More to the point, the essential element for interpleader is that “the respective claims are [in whole or in part] mutually inconsistent and if enforced in separate actions would expose the defendant to double liability in regard to the same matter.” McCrady-Rodgers Co. v. Housing Corporation, 360 Pa. 275, 279, 61 A.2d 866, 868 (1948). However, “[ijnterpleader may be granted... even though the same claim is not asserted or the same relief is not demanded by both claimants.” Id. at 279, 61 A.2d at 868; see also, Pa.R.C.P. 2306(c)(3).

This essential element for interpleader has been met in this case and was, in fact, the very basis upon which this court relied in granting defendants’ request to inter-plead Westfield. Both plaintiffs’ claims and those of Westfield for breach of contract appear from the pleadings to be premised on the same contractual obligations of defendants created by the contract with Westfield, and to avoid inconsistent and contradictory results — and the possibility of duplicative awards — were properly inter-pleaded together. At this point in the proceedings, although the claims of plaintiffs and Westfield for damages are believed to overlap, it is uncertain whether they are identical. Regardless, to the extent both arise out of the same underlying conduct of defendants which gives rise to damages to both plaintiffs and Westfield for breach of contract, some of which overlap and some of which may not, once interpleader is granted, we believe principles of judicial economy and efficiency and fairness to the parties permits all such damages to be litigated in one proceeding. See Smith v. Gaut, 60 D.&C. 528, 531 (Wash. Cty. 1947) (“It is in the public interest as well as in the private interest of the defendant to avoid such additional suits when it is possible to do so by interpleading the adverse claimant in the suit first brought.”).

CONCLUSION

In accordance with the foregoing, we respectfully request that our order denying defendants’ objections to Westfield’s discovery and directing defendants to comply with this discovery be affirmed.

      . To the extent defendants argue that the granting of the discovery order vis-á-vis Westfield’s replevin claim in a decision “on the merits” because, in the context of this claim, the granting of the discovery is co-extensive with the granting of relief on the merits, the issue is moot: On October 7, 2004, Westfield praeciped to discontinue the replevin claim.

      . Our assessment of the viability of defendants’ appeal does not, in any way, effect our jurisdiction to act on defendants’ preliminary objections to Westfield’s complaint or defendants’ motion to stay all proceedings pending the outcome of the appeal. While Pa.R.A.P. 1701(a) provides that after an appeal is taken, “the trial court... may no longer proceed further in the matter,” this general prohibition is limited by Pa.R.A.P. 1701 (c) to the particular claim “involved in [the] appeal.”Richarcls v. Trimbur; 374 Pa. Super. 352, 543 A.2d 116 (1988). Therefore, should it later be determined that our order dated July 27, 2004, meets the criteria for being a collateral order, this conclusion does not deprive us of jurisdiction to rule on all matters not involved in the appeal. Rosen v. Rosen, 520 Pa. 19, 24, 549 A.2d 561, 564 (1988) (“The purpose of Rule 1701(c) is to prevent appeals of collateral issues from delaying ihe resolution of the basic issues where the proceeding below can continue without prejudicing the rights of the parl[ies] seeking the interim review.”). We will, however, defer ruling on Westfield’s motion for sanctions as to the discovery order until after defendants’ appeal is disposed of by the Superior Court.

      . We are aware of no procedural law or rule that required Westfield, as asserted in defendants’ objections to Westfield’s discovery, to seek leave of court before filing its complaint; in fact, the rules are to the contrary. Pa.R.C.P. 2304 and 2309.

      . On August 9, 2004, more than four months after the filing of Westfield’s complaint, and after our order dated July 27, 2004, which is the subject of defendants’ appeal, defendants filed objections to Westfield’s complaint. Argument on these objections was held on September 29, 2004. At that time, defendants argued that because plaintiffs’ claims were in trespass and Westfield’s for breach of contract, trespass and replevin, Westfield violated the permissible scope of claims in an interpleader proceeding. This argument ignores the explicit language of plainti ffs’ complaint asserting that their claims are for breach of contract (plaintiffs’ complaint, paragraphs 18 and 19) and is inconsistent with defendants’ own petition for interpleader in which defendants aver that the contract plaintiffs claim has been breached is that between defendants and Westfield and, that for this reason, plaintiffs’ claims are inconsistent with or duplicative of those made by Westfield, thereby exposing defendants to double or multiple liability for the same claim. (Petition for interpleader, paragraphs 12 and 15.)

      . In response to our order pursuant to Pa.R.A.P. 1925(b) directing defendants to file a concise statement of the matters complained of on appeal, defendants have filed a rambling, inaccurate and imprecise statement which contains, in part, matters not of record and which obfuscates, rather than defines, the issues on appeal. We believe the foregoing opinion accurately and properly focuses on the real issue: whether Westfield’s request for discovery is relevant to the claims properly raised in these proceedings.
      To the extent defendants allege they were not notified of, or provided an opportunity to participate in, the argument on Westfield’s motion to compel discovery, the record is to the contrary. The. same order of June 30,2004, which granted defendants’ request to continue the argument/hearing rescheduled for July 2, 2004, also rescheduled the matter for July 27, 2004. Therefore, the defendants’ claim that they received notice of the granting of the continuance but not of the new date is misleading.
      When the case was first called for argument on July 27,2004, and it was learned that counsel for defendants was not present, the court had a member of its staff contact Attorney Foster’s office to determine the reason for his absence. In the meantime, the case was placed at the end of the list of cases scheduled for argument. Prior to recalling the case, the court was advised that Attorney Foster would not be attending due to illness and that Attorney Clever, who apparently had been monitoring Attorney Foster’s mail during the previous week, reported that no notice of the rescheduled proceedings had been received during this period. Prior to that time period, however, the prothonotary’s dockets reflect that notice of the rescheduled proceedings was forwarded to Attorney Foster’s office, as well as to counsel for the plaintiffs and Westfield. This notice, according to the prothonotary’s records, was mailed to Attorney Foster on July 9, 2004, almost three weeks prior to the scheduled proceeding on July 27, 2004, and prior to the date Attorney Clever indicated he was checking Attorney Foster’s mail.
      As indicated in the text, counsel for both plaintiffs and Westfielcj were present for the scheduled argument/hearing and obviously received the notice sent by the prothonotary’s office. Moreover, no evidence was taken or hearing held in Attorney Foster’s absence. Instead, an abbreviated argument was made by Westfield’s counsel and the matter was then taken under advisement. The motion was decided solely on the undisputed facts of record with respect to Westfield requesting and defendants objecting to discovery, the issue as to the propriety of the discovery being one of law.
      Westfield’s motion to compel filed on May 7,2004, was accompanied by a memorandum of law as required by local rule. Local rule also requires that when a motion or petition is opposed, the answer to the petition also be accompanied by a memorandum of law. Rule L206.1(4)(E). In this case, defendants’ answer filed on June 1, 2004, was not accompanied by a memorandum of law. Pursuant to local rule, a party who fails to file a brief as required by the rules is prohibited from arguing. Rule L2U(3). In practice, this court has been lenient in the enforcement of the rule when no prejudice occurs to the opposing party. In this case, the court did not consider defendants’ failure to file a responsive memorandum of law or to appear at the scheduled proceeding as a waiver of the issue. Rather, the issue was decided as an issue of law in accordance with the law, as we understand it.
      As to questions oflaw, defendants’ counsel refers to no cases which hold that where a party has been provided an opportunity to brief an issue, argument in person is a concomitant requirement of due process. Under these circumstances, we do not believe we abused our discretion or violated any rights of defendants by deciding a question of law on the basis of the undisputed matters of record. We further fail to sec how defendants have in any manner been prejudiced by the procedure followed in ruling on Westfield’s motion to compel.