author: DONOHUE, Member,

text:
    In re Anonymous No. 48 D.B. 97

      December 1, 1998
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

DONOHUE, 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

Office of Disciplinary Counsel filed a petition for discipline against [respondent] on April 10,1997. The petition charged respondent with engaging in the unauthorized practice of law while he was suspended and failing to comply promptly with conditions attached to a private reprimand imposed by the Disciplinary Board. Respondent filed an answer to petition for discipline on May 13, 1997.

A hearing was held on July 28, 1997 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent appeared pro se. Petitioner was represented by [ ], Esquire.

The committee filed a report on May 15, 1998 and recommended a three-year suspension. No briefs were filed by either party.

This matter was adjudicated by the Disciplinary Board at the meeting of August 13, 1998.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, [ ], was bom in 1933 and was admitted to practice law in the Commonwealth of Pennsylvania on or about April 1,1961. By order of the Supreme Court of Pennsylvania dated August 2, 1994, respondent was suspended from the practice of law for a period of three years. His last registered office address was [ ], which is also his residence. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court, pursuant to Pa.R.D.E. 201(a)(3).

Charge I: The [A] Matter

(3) On June 7,1994, [A] (decedent), a resident of [ ] County, Pennsylvania, died, testate.

(4) Under decedent’s will:

(a) the residuary beneficiaries, after a $2,000 bequest, were [B], 50 percent, and [C] and [D], 50 percent; and

(b) [D] was named executor.

(5) In or about June 1994, [D] retained respondent to represent him in his capacity as executor of the estate.

(6) On June 13, 1994, respondent filed with the Register of Wills of [ ] County a petition for grant of letters testamentary to [D], which was granted.

(a) Respondent failed to promptly advertise the grant of letters testamentary.

(b) Immediately after obtaining the grant of letters, respondent and [D] opened an estate bank account.

(7) By order of the Supreme Court of Pennsylvania dated August 2, 1994, respondent was suspended from the practice of law for a period of three years effective 30 days from the date of the order (September 1, 1994) and was directed to comply with the provisions of Pa.R.D.E. 217.

(8) Under cover of a letter dated August 3,1994, Elaine M. Bixler, secretary of the Disciplinary Board of the Supreme Court of Pennsylvania, forwarded to respondent a copy of the Supreme Court order suspending him for three years, as well as standard guidance to formerly admitted attorneys.

(9) On August 22,1994, respondent filed with the register of wills a certification of notice to heirs under Rule 5.6(a), which he signed as “counsel for personal representative,” in the [A] estate.

(10) Acting upon respondent’s advice, [D] issued checks on the estate account, including payments to respondent totalling $15,000 prior to September 1, 1994, and at least $14,000 thereafter.

(11) These payments were improper, in that respondent was not entitled to receive fees after September 1, 1994 for services not yet performed, and he had not earned $15,000 prior to that date.

(12) Respondent failed to withdraw from representation of the [A] estate within 30 days from the date of his suspension, as required by Pa.R.D.E. 217(b).

(13) By letter dated September 6, 1994, under cover of a letter written on letterhead identical to that which he had utilized while a practicing attorney, except that reference to his status as attorney was deleted, respondent transmitted to the register of wills a payment on account of inheritance tax.

(14) On March 7, 1995, respondent filed:

(a) an inventory, which was prepared by him and signed by [D]; and

(b) an inheritance tax return, which was prepared and signed by respondent as preparer and signed by [D] and which claimed a deduction for counsel fees in the amount of $35,000.

(15) On March 14, 1995, respondent met with [E], Esquire, and [F], Esquire, counsel for [B], at which time:

(a) the parties discussed, inter alia, the counsel fees respondent had charged the estate, as well as a possible claim of [G], a minor, by [H], his parent, challenging the will and seeking to cause probate of a prior will; and

(b) [F] requested that respondent provide documentation concerning the challenge to the will and accounting of estate funds.

(16) By letter dated March 15, 1995, addressed to respondent as “[ ], Esquire,” [F] requested that he provide a statement of time spent and services provided by him and by the executor on the estate.

(17) Respondent did not provide the requested information or advise [F] that “Esquire” was an inappropriate form of address for himself.

(18) At all times respondent held himself out to [F] and [E] as a practicing attorney; at no time did he advise them that he was suspended, as he was required to do by Pa.R.D.E. 217(c)(2).

(19) On April 14,1995, respondent transmitted to the Internal Revenue Service a check on behalf of the estate, which he had written out and [D] had signed, along with a payment voucher in which “c/o [respondent], Esq.” was entered in the block captioned “Name and title of fiduciary.”

(20) On June 6, 1995, a petition for citation to show cause why an appeal from the register of wills should not be sustained was filed by [I], Esquire, on behalf of [H], and the matter was certified to the orphans’ court.

(a) On June 12, 1995, the Honorable [J] issued a preliminary decree and citation to [D] to show cause why [H’s] appeal should not be sustained, returnable July 14, 1995.

(b) On July 12, 1995, respondent filed an answer to [H’s] appeal from probate on behalf of [D] as executor.

(21) Thereafter, respondent contacted [I] and requested a continuance of the matter.

(a) By letter to Judge [J], copied to “[respondent], Esq.,” dated July 13, 1995, [I] requested a continuance in order to accommodate the request of “[respondent], Esq., the attorney representing this estate.”

(b) Respondent did not advise [I] or the court that “Esquire” and “attorney for” were inappropriate forms of reference to him.

(c) In or about July 1995, respondent met with [I] to discuss the matter.

(22) At all times respondent held himself out to [I] as a practicing attorney; at no time did respondent advise him that he was suspended, as required by Pa.R.D.E. 217(c)(2).

(23) In or about August 1995, respondent provided to [F] a list of costs and expenses in the estate, which included: an additional $13,500 designated “additional counsel fees and executors fees per agreement with [E], Esq.”; $10,000 designated “estimated counsel fees and costs to defend the matter of [H] v. Estate of [A]”; and $5,000 designated “estimated additional executor fees and costs in defense of [H] v. Estate of [A].”

(a) The fees and costs paid or payable to respondent were illegal and excessive, in view of the fact that respondent was not entitled thereto because of his suspension.

(b) The fees to the executor were unwarranted, in that, even if the [H] claim were legitimate, they would not affect his entitlement to executor’s commissions.

(24) By letter dated August 16, 1995, addressed to “[respondent], Esquire,” [F] raised questions concerning the figures respondent had provided to her, challenged the fees respondent was attempting to charge, questioned respondent’s proposed settlement of the [H] claim, which respondent had stated lacked merit, and asked for additional information and documentation.

(25) Respondent did not respond to the letter, provide any further information, or advise [F] that “Esquire” was an inappropriate form of address for himself.

(26) By order dated August 31, 1995, Judge [J] ordered that respondent cease all participation as counsel for the estate and turn over all documents to [D].

(27) On September 25, 1995, respondent filed a notice of appeal of the foregoing order to the Superior Court of Pennsylvania.

(a) On October 17,1995, respondent filed a statement of matters complained of on appeal.

(b) There were no nonfrivolous grounds for such appeal.

(c) On October 26, 1995, following consideration of the grounds for respondent’s appeal, Judge [J] issued an opinion in which, inter alia, he dismissed the appeal as “arrogant and frivolous.”

(d) Respondent failed to file a timely brief on appeal.

(e) By order dated January 29,1996, the Superior Court dismissed the appeal due to respondent’s failure to file a brief.

Charge II: The [K] Matters

(28)Commencing in January, 1993, respondent served as executor and counsel in the estate of [K], deceased, and counsel to the executors of the estate of [L], deceased, arising from the following circumstances:

(a) [K] (decedent), a resident of [ ], died, testate, on December 30,1992, and on February 2,1993, letters testamentary were granted to respondent.

(b) The beneficiaries of the [K] estate were decedent’s brother and sister, [M] and [L], and [N] Hospital.

(c) The assets of the estate included real property, which was sold on July 30, 1993, with net proceeds to the estate of $43,020.

(d) On April 9, 1993, [L] died, intestate.

(e) [L’s] heirs, [O] and [P], retained respondent to represent them as co-administrators of her estate.

(f) On June 10, 1993, letters of administration were granted in the [L] estate.

(29) Thereafter, respondent failed to execute his duties in accordance with applicable law and the Rules of Professional Conduct, in that he failed to: file an inventory and an inheritance tax return and pay tax in the [K] estate within nine months of date of death, as required by law; communicate with the administrators of the [L] estate and subsequently with their successor counsel, [Q], Esquire; release the [L] estate file as requested by the clients; cease communication with the administrators after their retention of new counsel; account for [K] estate funds; respond to various petitions filed by [Q] in the orphans’ court in the [K] estate; and comply with resultant decrees.

(30) By letter requesting a statement of respondent’s position (Form D.B.-7) dated September 8,1994, respondent was advised of allegations of professional misconduct relating to the foregoing circumstances.

(31) Thereafter, respondent failed to take appropriate remedial action and to comply with further directives of the orphans’ court.

(32) On March 31, 1995, the Disciplinary Board entered an order directing that a private reprimand be administered to respondent for his violations of specified Rules of Professional Conduct in the [K and L] estates matters and requiring that he comply with the following conditions:

“At least 10 days prior to the scheduled private reprimand, respondent shall submit to the secretary of the board and Disciplinary Counsel proof that he has filed an account in the [K] estate and complied fully with any adjudication in either the estate of [K] or the estate of [L],
“Costs, if any, are to be paid by the respondent.”

(33) By letter dated April 5,1995, Ms. Bixler advised respondent of the entry of the board’s order and notified him that any request for formal proceedings had to be made within 20 days after the date of notice of disposition of the complaint.

(34) Thereafter, respondent continued to act in a dilatory manner in both the Disciplinary Board and the orphans’ court proceedings, evading compliance with the board conditions by delaying the orphans’ court proceedings, and repeatedly obtaining postponements of both proceedings, as follows.

(35) On June 7, 1995, the orphans’ court entered a decree in the [K] estate, awarding an alias citation to respondent to show cause why a writ of attachment should not issue for failure to comply with a court order of August 18,1994 directing him to file an account within 30 days of the entry of that order.

(a) Respondent failed to respond to the citation or file an account within 30 days of the order.

(b) Respondent filed the account on July 11, 1995, and it was listed for audit on September 11, 1995.

(36) By notice dated July 20,1995, the board directed respondent to appear on August 17, 1995 at [ ] for the administration of the private reprimand and forwarded an additional copy of the March 31, 1995 order.

(a) By letter to the board dated August 5, 1995, received on August 9, which was not copied to petitioner, respondent requested that the reprimand be rescheduled.

(b) Respondent failed to comply with the conditions to the board order by August 7, 1995.

(c) On or about August 11, 1995, respondent transmitted to the board the “First account of [respondent], executor, estate of [K] deceased,” stamped as filed in the orphans’ court on July 11, 1995.

(d) By letter dated August 14, 1995, Ms. Bixler advised respondent that the board had granted a continuance of the private reprimand until its next meeting.

(37) On September 6, 1995, the beneficiaries filed objections to the account in the orphans’ court.

(a) Respondent failed to appear for the audit list on September 11, 1995, and the audit was deferred to the next listing, October 2, 1995.

(b) On October 2, 1995, respondent appeared at the audit and agreed to meet with [Q] in order to provide information and attempt to resolve outstanding issues.

(c) In or about October 1995, respondent met with [Q], at which time he failed to provide the necessary information or otherwise resolve outstanding issues, and he and [Q] agreed to proceed to audit on the November list.

(38) By letter to the board dated October 12, 1995, which was not copied to petitioner, respondent requested that the board afford him the opportunity to respond to the matters set forth in the private reprimand notice.

(a) By letter to respondent dated October 20, 1995, Ms. Bixler acknowledged receipt of his October 12 letter; advised him that due to his failure to comply with the provisions of Pa.R.D.E. 208(a)(6) and Disciplinary Board Rule §87.54(b) with respect to the procedural requirements to obtain a hearing, his request was denied and pointed out that he had failed to serve Disciplinary Counsel with his request or to provide proof that he had done so, as required by board rule.

(b) By notice dated November 3, 1995, the board directed respondent to appear on December 7,1995 at [ ] for the administration of the private reprimand, and enclosed an additional copy of the March 31, 1995 order.

(39) Respondent failed to appear in the orphans’ court for the audit on November 6, 1995.

(a) On or about November 6,1995, respondent called the chambers of the Honorable [R] and advised that he would not appear for the audit due to family illness.

(b) The audit was relisted for December 13, 1995.

(40) On December 7, 1995, respondent appeared before the board for the administration of a private reprimand, at which time:

(a) Respondent advised John L. Doherty, Chief Disciplinary Counsel, that the court had not yet adjudicated the estate.

(b) Mr. Doherty advised respondent that he was concerned that respondent had failed to appear for the previously scheduled private reprimand; that the private reprimand would be rescheduled; and that the conditions must be completed timely.

(41) On December 13, 1995, settlement negotiations took place in the orphans’ court matter, which was relisted for January 11, 1996.

(a) On January 11,1996, the matter was continued and relisted for trial on February 27, 1996.

(b) On February 27,1996, a settlement was placed on the record, pursuant to which, inter alia, respondent was to refund $5,500 in fees to the estate by the end of April 1996; and [Q] was to assist him in preparing an amended inheritance tax return, an amended account and a statement of proposed distribution.

(c) In or about April 1996, respondent met with [Q], at which time they discussed the amended tax return and amendments to the account, which [Q] agreed to prepare upon receipt of proof that respondent had made the payment.

(d) Respondent failed to deposit the $5,500 into the estate account by the end of April 1996, as he had agreed to do, or to notify [Q] that he would not do so.

(e) On several occasions in May and June 1996, [Q] called respondent and sent him facsimile messages requesting confirmation that the funds had been deposited.

(f) Respondent did not answer those requests.

(g) On May 29, 1996, [Q] called respondent, who stated that he would deposit the $5,500 on June 11,1996.

(h) Respondent failed to deposit the funds on June 11, 1996, or to notify [Q] that he had not done so.

(i) [Q] called respondent on June 12, 1996, but respondent did not return the call.

(j) By facsimile transmission dated June 14,1996, [Q] advised respondent that he would enforce the settlement agreement on the record if respondent failed to deposit the $5,500 on or before June 17, 1996.

(k) On or about June 17, 1996, respondent advised [Q] that the $5,500 would be deposited into the estate account on June 19.

(l) On June 27,1996, respondent deposited the $5,500 into the estate account.

(42) By notice dated August 5, 1996, the board notified respondent that the private reprimand was rescheduled for August 14, 1996 at the [ ].

(a) Respondent failed to appear on August 14, 1996.

(b) By letter dated August 22, 1996, Thomas A. Leonard, chair of the board, directed respondent to advise the board by September 12,1996 why his failure to appear should not result in the institution of formal proceedings.

(c) Respondent responded to the board by letters dated August 18 and September 10,1996, which were not copied to petitioner.

(d) By letter dated September 19, 1996, Mr. Leonard advised respondent that his reasons were accepted by the board, but directed him to provide proof of compliance with the conditions by October 14, 1996.

(e) By letter to Mr. Leonard dated September 24,1996, which was not copied to petitioner, respondent forwarded a copy of the account in the [K] estate and certified that he had complied with the adjudication in the matter.

(43) On October 16,1996, respondent filed a restated account in the [K] estate, of which he forwarded a copy to petitioner under cover of an October 24, 1996 letter.

(44) By notice dated December 18, 1996, the board notified respondent to appear on January 30,1997 at the [ ] for administration of the private reprimand.

(45) On January 23, 1997, the orphans’ court confirmed the restated account.

(46) On January 30, 1997, respondent appeared before the board to receive the private reprimand, at which time the board noted that he had complied with the terms of its order dated March 31, 1995.

(47) Respondent does not suffer from alcoholism or any kind of psychological problem or drug addiction. (N.T. 21.)

(48) At the effective date of respondent’s suspension, he had not advertised the grant of letters in the [A] estate, prepared final year income tax returns, filed an inventory and inheritance tax return, paid inheritance taxes, prepared a final accounting, obtained receipts and releases or filed the account, or made distribution. (N.T. 27, 42-45.)

(49) Exhibit R-l, “Review of activities and services performed for [A] and [S] and their estates,” a list of services allegedly performed by respondent for the [A and S] includes non-legal and pre-death activities.

(50) Respondent’s prior record of discipline includes a suspension of three years, by order dated August 2, 1994 for his conversion of trust funds, in violation of R.RC. 1.15(b), 8.4(b), and 8.4(c); and the private reprimand ordered on March 31,1995 for violation of R.P.C. 1.1, 1.3, 1.16(d), and 8.4(d) in the [K] matter.

in. CONCLUSIONS OF LAW

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

(1) R.P.C. 1.5(a), which states that a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee;

(2) R.P.C. 3.1, which states that a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law;

(3) R.P.C. 5.5(b), which states that a lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction;

(4) R.P.C. 8.4(a), which states that it is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(5) R.P.C. 8.4(c), which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

(6) R.P.C. 8.4(d), which states that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice; and

(7) Pa.R.D.E. 203(b)(3), which states that willful violation of any other provision of the Enforcement Rules creates an independent basis for discipline, via:

(a) Pa.R.D.E. 217(a), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients being represented in pending matters, other than litigation or administrative proceedings, of the . . . suspension . . . and the consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the ... suspension ... and shall advise said client to seek legal advice elsewhere;

(b) Pa.R.D.E. 217(b), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceedings, of the . . . suspension . . . and the consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the ... suspension ... The notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney. In the event the client does not obtain substitute counsel before the effective date of the... suspension..., it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw; and

(c) Pa.R.D.E. 217(c)(2), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, of the... suspension..., by registered or certified mail, return receipt requested: all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing.

By his conduct as set forth in the [K] matter, respondent has violated the following Rules of Professional Conduct:

(1) R.P.C. 3.5(b), which states that a lawyer shall not communicate ex parte with a judge ... or other official, except as permitted by law; and

(2) R.P.C. 8.4(d), which states that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the board on a petition for discipline charging respondent with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement in two situations. The first charge alleges that respondent engaged in the unauthorized practice of law by failing to withdraw from representation of an estate in compliance with an order of the Supreme Court of Pennsylvania dated August 2,1994. This order suspended respondent from the practice of law for a period of three years, effective 30 days from the date of the order or September 1, 1994. After that date, respondent continued to receive fees, held himself out to other parties as an attorney and filed documents with the Internal Revenue Service and the register of wills identifying himself as an attorney. Respondent also collected excessive fees and filed a frivolous appeal.

The second charge alleges that respondent failed to comply promptly with the condition of a private reprimand by failing to act with diligence and competence in performance of his duties as executor and counsel to an estate. Respondent is also alleged to have engaged in ex parte communications.

The parties stipulated to the facts of the matter, including respondent’s admissions to the allegations and conclusions of law. This stipulation was introduced by petitioner at the hearing, as well as exhibits constituting evidence in aggravation of discipline. Respondent offered his own testimony at the hearing in mitigation.

Review of the record reveals that petitioner met its burden of proving by clear and convincing evidence that respondent violated the ethical rules alleged in the petition for discipline. The stipulation is clear as to the conduct leading to the violations, and respondent does not contest the facts or the conclusions of law.

The board’s responsibility in this matter, after finding that respondent violated Rules of Professional Conduct and Rules of Disciplinary Enforcement, is to recommend the appropriate sanction for the misconduct. This recommendation must reflect the totality of the circumstances of this case, with consideration given to the nature of the misconduct, respondent’s current fitness, the case law, and the aggravating and mitigating circumstances present.

Respondent was suspended for a period of three years by order of the Supreme Court dated August 2,1994. In that matter, respondent converted trust funds totalling over $75,000 held for the benefit of two beneficiaries of a trust. (Exhibit P-1 A.) On March 31, 1995, the board entered an order directing that respondent receive a private reprimand with conditions. This reprimand was the result of a determination that respondent engaged in incompetent conduct which occurred prior to respondent’s suspension in his capacity as personal representative of the [K] estate. (Exhibit P-2, P-2A.) The condition directed that respondent had to submit proof to the secretary of the board 10 days prior to the imposition of the private reprimand that he had filed an account in the [K] estate and complied fully with any adjudication in the [K] or [L] estates. Respondent failed to fulfill the condition until January 1997, at which time he received the private reprimand.

The misconduct involved in the instant matter arises from respondent’s non-compliance with the terms of the suspension order and the condition to the private reprimand. Relative to the suspension order of August 2,1994, respondent continued to act as counsel to [D], personal representative of the [A] estate, subsequent to September 1, 1994, the effective date of the order. Respondent prepared and filed documents and collected counsel fees. He held himself out as a practicing attorney and was aware of the belief of others that he was licensed to practice law. Respondent informed his own client, [D], of his suspended status, but continued with the representation. (N.T. 49.)

Respondent engaged in other misconduct relative to the estate of [A]. Respondent was hired in June 1994 to handle the estate and he was suspended in August 1994, yet he took payment of $15,000 in fees prior to September 1, 1994. At that time respondent had done little of the work required to conclude the administration of estates and had not earned those fees. Respondent took approximately $14,000 in fees after September 1,1994, which was improper in that he was not entitled to receive fees after that time for services not yet performed. Respondent attempted to reconstruct his records to demonstrate his fees were fair; however, his records include many activities which were non-legal and pre-dated the death of the decedents. (Exhibit R-l.) Respondent also filed an appeal to the Superior Court which was found to be frivolous.

Relative to the [K] matter, respondent failed to execute his duties to the estates. The Disciplinary Board informed respondent in March 1995 that due to his misconduct a private reprimand would be imposed. As a condition, respondent was directed to file an accounting in the [K] estate and to comply with any other adjudication involved with the [K] and [L] estates. Respondent failed to promptly attend to the condition and continued to act in a dilatory manner in resolving the [K and L] estates. In a minor incident, respondent initiated ex parte communications with the Disciplinary Board concerning the scheduling of the private reprimand. The reprimand was not imposed until January 1997, nearly two years after the determination, due to respondent’s delay.

Discipline imposed in Pennsylvania for practicing law while suspended has resulted in public discipline ranging from public censure to disbarment. The attorney in Office of Disciplinary Counsel v. Jackson, 536 Pa. 26, 637 A.2d 615 (1994) was disbarred after he practiced law, split legal fees with an attorney and fabricated evidence during his suspension. In Office of Disciplinary Counsel v. Herman, 493 Pa. 267, 426 A.2d 101 (1981), the attorney was suspended for three years and during that time he held himself out as an attorney, failed to advise his clients of his suspension, and concealed his conduct by arranging for another attorney to cover his court appearances. The Supreme Court disbarred Mr. Herman for this activity.

While the misconduct in the instant case is not as egregious as in Jackson and Herman, in that respondent represented one long-standing client rather than several clients and passively rather than actively promoted the idea that he was entitled to practice, the totality of respondent’s misconduct warrants a lengthy suspension. Respondent continued to practice law while suspended in direct violation of a Supreme Court order. Respondent continued this representation for approximately 12 months. Respondent did not handle his cases with competence and diligence, filed a frivolous appeal, and collected excessive fees to which he was not entitled. There is no evidence of record that the fees were refunded to the estate by respondent. Respondent was dilatory in complying with a condition of a private reprimand.

Respondent’s prior disciplinary history includes a three-year period of suspension in 1994 for converting approximately $75,000 from an estate by forging the signature of the co-executor, and the private reprimand administered in 1997. It is clear from the facts of this matter that respondent’s prior discipline did not impress upon him the necessity of handling his legal practice with care and diligence. Even with a suspension looming over him, respondent continued in a course of conduct which exhibited disregard for the Rules of Professional Conduct.

Respondent is 65 years of age and has been practicing law since 1961. Prior to his original suspension in 1994, his disciplinary record was unblemished. Since 1994, however, respondent has experienced numerous disciplinary problems. Respondent expressed remorse at the hearing and admitted that his conduct was “stupid” and lacked good judgment (N.T. 31), yet this realization came too late in the day to aid respondent. At the present time he is not fit to practice law.

The Hearing Committee recommended a three-year suspension, based in part on the recommendation of petitioner, which suggested a suspension of not less than two years. The board is of the opinion that a suspension longer than three years must be imposed. Respondent’s original suspension was for a three-year period. During that time he continued to practice law in direct violation of the Supreme Court order suspending him. Respondent’s unauthorized practice of law constitutes a significant aspect of the instant misconduct. In order to emphasize the seriousness of practicing law while suspended, the board is persuaded that a suspension longer than the original suspension must be imposed on respondent. The board recommends a four-year suspension consecutive to his prior suspension.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from the practice of law in the Commonwealth of Pennsylvania for a period of four years with said period of suspension to run consecutively to the period of suspension previously imposed by your court on August 2,1994 at no. 145 D.B. 91.

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 Marroletti, George and Morris would recommend a two-year suspension.

Board Member Peck would recommend a five-year suspension.

ORDER

And now, March 24, 1999 upon consideration of the report and recommendations of the Disciplinary Board dated December 1, 1998, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of four years to run consecutively to the period of suspension previously imposed by this court on August 2, 1994 at no. 145 D.B. 91, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

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

Messrs. Justice Castille and Nigro dissent and would enter a rule upon respondent to show cause why he should not be disbarred.


source: Caselaw Access Project

author: LAWLER, J.,

license: Public Domain

text:
    Williams v. Pennlake Realty Assoc.

      C.P. of Bucks County,
    no. 96-02931-05.

      Bernard Edelson, for plaintiff.

      Claudia D. McCarron, for defendants Pennlake Realty Associates.
    August 9, 1999
   LAWLER, J.,

Defendants, Pennlake Realty Associates, appeal the order of this court dated June 22, 1999, denying their motions for post-trial relief. Pursuant to Pa.R.A.P. 1925(b), defendants have submitted a concise statement of matters complained of on appeal. This opinion is filed in accordance with Pa.R.A.P. 1925(a).

BACKGROUND

Defendants own and manage the Lakeview Terrace Apartments, the apartment complex in which plaintiff Lisa Williams has been a tenant for approximately seven years. This apartment complex is the location where plaintiff had a slip and fall accident in June of 1994 and where plaintiff continues to reside.

In the spring of 1994, the square tiles on the floor of the bathroom in plaintiff’s apartment began “coming out.” N.T., 3/8/99, pp. 14-15. As a result, the portion of the bathroom which meets the hallway carpet had no tiles, while the remaining portion of the bathroom had the square tiles. N.T., 3/8/99, p. 41.

When this problem began, plaintiff telephoned the apartment complex office in April of 1994, reported that the bathroom tiles were missing, and asked for maintenance to come and replace them. N.T., 3/8/99, pp. 16-17. Plaintiff called the office a few times but, despite assurances that maintenance would be sent, no repairs were made to correct the problem before the accident occurred. N.T., 3/9/99, pp. 89-90. The only action taken was the preparation of a work order on April 14, 1994, which was subsequently submitted to the maintenance department. N.T., 3/8/99, p. 57; N.T., 3/9/99, pp. 35-36. Nothing further was done, as defendants’ resident manager incorrectly assumed that the problem had been addressed. N.T., 3/9/99, pp. 35-36.

On June 5, plaintiff got up in the middle of the night to go to the bathroom. As she was leaving the bathroom, plaintiff stubbed her right toe into the space between the start of the hallway carpet and the cement gap where the tiles were missing. N.T., 3/8/99, p. 17. This caused plaintiff to fall and hit her left kneecap on the concrete of the bathroom floor. N.T., 3/8/99, p. 17. Plaintiff required surgery to correct some of the injuries sustained to her left knee. Additionally, plaintiff has developed degenerative arthritis in the knee.

Following the accident, an inspection of plaintiff’s premises was conducted by HUD. N.T., 3/9/99, pp. 31-32. Based on the inspection report, a work order was prepared by the resident manager directing that the tile problem be addressed as the “bathroom floor [is] coming apart.” N.T., 3/9/99, pp. 29-30. Defendants subsequently replaced the tiles in plaintiff’s bathroom. N.T., 3/8/99, p. 31.

Thereafter, plaintiff brought suit against defendants for the injuries she sustained as a result of her fall. The case went to trial on March 8,1999. On March 10,1999, the jury returned a verdict in favor of plaintiff in the amount of $207,275.

ISSUES ON APPEAL

Defendants appeal the jury verdict rendered in favor of plaintiff. Defendants’ appeal, in essence, raises four issues. First, defendants argue that this court erred in refusing to enter judgment n.o.v. as defendants had no duty to make repairs. Second, defendants contend that the court’s jury charge was prejudicial to defendants because it misled the jury as to the applicable law. Third, defendants allege that this court committed evidentiary errors. Fourth, defendants claim that this court erred in failing to order a remittitur to which the defendants were entitled because the verdict is excessive. For the reasons enumerated below, it is clear that none of these alleged errors holds any merit.

DISCUSSION

1. Defendants Were Not Entitled to a Judgment N.O.V. As They Had a Duty To Repair the Floor in Plaintiff’s Bathroom

Defendants claim they are entitled to a judgment n.o.v. based on the proposition that, absent a provision in a lease to repair, an agreement by the landlord to repair made after the tenant takes possession does not impose a tort duty to repair upon the landlord. However, defendants had a duty to repair the plaintiff’s bathroom under the factual circumstances of the case.

At the outset, it is important to note that a judgment n.o.v. is properly entered by the court only where the facts are so clear that no two reasonable minds could fail to agree that the verdict was improper. Lilley v. JohnsManville Corp., 408 Pa. Super. 83, 91, 596 A.2d 203, 207 (1991), allocatur denied, 530 Pa. 644, 607 A.2d 254 (1992). In reviewing a motion for judgment n.o.v., “the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” McDermott v. Biddle, 436 Pa. Super. 94, 105, 647 A.2d 514, 519 (1994), quoting Broxie v. Household Finance Company, 472 Pa. 373, 380, 372 A.2d 741, 745 (1977). With the evidence considered in the light most favorable to plaintiff in the instant case, it is clear that defendants are not entitled to a judgment n.o.v.

Generally, in the absence of a lease provision, a landlord is under no duty to repair the leased premises. Felton by Felton v. Spratley, 433 Pa. Super. 474, 479, 640 A.2d 1358, 1361 (1994). However, a landlord can be held liable for failing to make repairs under other factual circumstances and legal theories. One such circumstance is when there is a course of conduct under which a landlord undertakes to maintain and repair the tenant’s apartment.

A landlord’s duty to repair can arise from his or her course of conduct in performing repairs even without an express promise or provision in the lease. McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 452, 450 A.2d 991, 998 (1982); Restatement (Second) of Torts §357. The case of McDevitt v. Terminal Warehouse Co. is representative of the current state of the law regarding a landlord’s duty to repair that arises from course of conduct. In McDevitt, the Superior Court found that the landlord had a duty to maintain a parking lot leased to tenant despite the absence of a clause in the lease. In so holding, the Superior Court relied on evidence in the record establishing that the landlord performed needed maintenance for years for the benefit of the tenant and tenant’s employees upon notification by tenant of problems that developed. 304 Pa. Super, at 451-52, 450 A.2d at 998. This course of conduct gave rise to the implication that the landlord undertook a duty to repair and maintain the premises. Id.

Likewise, in the instant case, although the lease was silent as to who had the duty to repair, defendants actually performed the maintenance and repairs of the premises. Defendants, like the landlord in McDevitt, established a procedure to handle and carry out requests for repairs made by tenants. See N.T., 3/9/99, pp. 16,25-26. By virtue of this course of conduct, there arose an implication that defendants undertook a duty to repair and maintain the premises.

Further support for the course of conduct theory of liability is found in section 357 of the Restatement (Second) of Torts. That section was adopted by Pennsylvania in Reitmeyer v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968). Section 357 provides as follows:

“Section 357. Where lessor contracts to repair.
“A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after lessee has taken possession if
“(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and “(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
“(c) the lessor fails to exercise reasonable care to perform his contract.” (emphasis added)

Section 357 is grounded upon the theory that the special relationship between a landlord and a tenant will likely induce the tenant into relying on the landlord to make repairs and will thus cause the tenant to forego any efforts to remedy the dangerous condition himself. Kelly by Kelly v. Ickes, 427 Pa. Super. 542, 552, 629 A.2d 1002, 1007 (1993), citing Reitmeyer, 431 Pa. at 288-89, 243 A.2d at 397.

Section 357 is not limited to situations where the lease provides that the landlord is to make repairs. Kelly, 427 Pa. Super, at 552, 629 A.2d at 1007. To the contrary, “section 357 indicates that a lessor may undertake the duty as a covenant in the lease or ‘otherwise.’ ” Id.

In the instant case, defendants did not agree in the lease to make repairs. However, defendants “otherwise” agreed to make repairs by creating a procedure for repairing tenants’ apartments and having their maintenance department perform those repairs upon notification of the dangerous conditions on the premises. As a consequence, this course of conduct establishes that defendants had the duty to repair.

A second theory under which defendants can be held to have possessed a duty to plaintiff is under section 323 of the Restatement (Second) of Torts. The Supreme Court of Pennsylvania adopted section 323 because it is “an accurate statement of the law in this Commonwealth.” Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980); Dejesus v. Liberty Mutual Insurance Co., 423 Pa. 198, 223 A.2d 849 (1966). Section 323 provides as follows:

“Section 323. Negligent performance or undertaking to render services
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
“(a) his failure to exercise such care increases the risk of harm, or
“(b) the harm is suffered because of the other’s reliance upon the undertaking.” (emphasis added)

Under section 323, landlords assume a duty of care to their tenants by consistently promising to remedy a dangerous condition on the premises, thereby creating a possible reliance by their tenants on their efforts. Thus, by agreeing to make the repairs, landlords assume the duty to actually make the repairs. Reider v. Martin, 359 Pa. Super. 586, 592-93, 519 A.2d 507, 511 (1987), allocatur denied, 517 Pa. 594, 535 A.2d 83 (1987).

In the instant case, defendants assumed the duty to repair plaintiff’s bathroom floor when they agreed to address the dangerous condition. Plaintiff made at least two or three calls to the resident manager and asked for the bathroom tiles to be repaired. N.T., 3/9/99, pp. 89-90. In response to the initial call, defendants promised to repair the floor. N.T., 3/9/99, p. 90. Plaintiff relied on that promise and did nothing to fix the floor herself. When the needed repairs were not made, plaintiff again called defendants. Another promise was made to plaintiff. Plaintiff again relied upon that promise and waited for defendants to fix the floor. By virtue of defendants’ promises and plaintiff’s reliance on those promises, defendants assumed the duty under section 323 to actually make the repairs.

2. This Court Acted Properly in Rendering Its Instructions to the Jury

The standard and scope of review of a court’s instructions to the jury is as follows:

“When a challenge is made as to the sufficiency of a charge to the jury, [the court’s] function ... is to examine the charge in its entirety against the background of the evidence to determine whether error has been made which prejudices the complaining party. Unless we conclude that the charge as a whole was erroneous and may have prejudiced the [complaining party], we will not reverse for isolated inaccuracies. In making such a determination, we are careful to construe the offending portions in their proper context.” Nobel C. Quandel Co. v. Slough Flooring Inc., 384 Pa. Super. 236, 240, 558 A.2d 99, 101 (1989).

All of the challenges raised by defendants to this court’s instructions to the jury lack legal support.

One challenge raised by defendants is to this court’s charge to the jury regarding the duty of a landlord who covenants to make repairs. Defendants claim there was no evidence of such a covenant. Defendants are mistaken, as this court’s instructions were factually and legally correct.

The jury was instructed in accordance with section 357 of the Restatement (Second) of Torts. N.T., 3/10/99, pp. 16-17. This court also charged the jury that a duty to repair arises from the landlord’s course of conduct over time in undertaking to make repairs. N.T., 3/10/99, p. 16. For the reasons set forth on pages 278-284, supra, it is clear that the jury was correctly instructed on the duty of a landlord to make repairs.

A second challenge raised by defendants focuses on this court’s charge as to the duty of care owed by a possessor of land to his invitees. This court’s instructions were based upon Pa.S.SJ.I. (Civil) §§7.00 and 7.00B. N.T., 3/10/99, pp. 15-16.

Defendants have not proven that they suffered any legal prejudice from this court’s instructions regarding invitees. The entire charge must be considered in determining whether a prejudicial error occurred. James v. Ferguson, 401 Pa. 92, 97, 162 A.2d 690, 693 (1960). Further, to constitute a reversible error, it must be shown that a jury instruction was both erroneous and harmful to appellant. Jistarri v. Nappi, 378 Pa. Super. 583, 588, 549 A.2d 210, 213 (1988). Defendants have not shown any harm. Instead, any “isolated inaccuracies” in the court’s charge were not prejudicial when put in the proper context and the charge as a whole is examined. Nobel C. Quandel Co., 384 Pa. at 240, 558 A.2d at 101.

Additionally, defendants themselves requested that this court give the jury instructions regarding invitees. Most of defendants’ requested points for charge concerning liability are based on or are taken from cases and sections of the Restatement dealing with the duty of care owed to invitees by possessors of land. It is incredible that defendants request this court to instruct the jury on the principles of law concerning invitees, and then object and ask for a new trial when the court does as the defendants requested.

Lastly, defendants claim that this court erred in not giving nos. 5, 6, 7, 8, 14, 15 and 20 of defendants’ proposed points for charge. However, a defendant who submits points for binding instruction, which are denied by the trial court, waives any alleged error where the defendant did not object at the end of the charge to the court’s failure to give the instructions. Gray v. H. C. Duke & Sons Inc., 387 Pa. Super. 95, 109, 563 A.2d 1201, 1208 (1989), allocatur denied, 525 Pa. 583, 575 A.2d 114 (1990). Defendants did not take exception to this court’s failure to give the proposed points at the conclusion of the charge to the jury. Consequently, defendants’ claim is waived.

Moreover, as noted above, none of these requested points for charge are based on landlord-tenant cases. Instead, they are based on cases and sections of the Restatement that concern the liability of a possessor of land to his invitees. Defendants seek a new trial on the ground that this court improperly instructed the jury on the law of invitees. Defendants cannot also complain that a refusal to instruct the jury on the law of invitees constitutes error.

This court’s charge to the jury accurately stated the law governing the instant action. It properly covered defendants’ points which were applicable to the case using its own language. See Lilley, 408 Pa. Super, at 95, 596 A.2d at 209 (“So long as the trial judge chooses a form of expression which adequately and clearly covers the subject, he or she is not required to use the exact language of a requested point.”).

3. No Evidentiary Errors Were Committed at Trial

Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court. Lewis v. Pruitt, 337 Pa. Super. 419, 428, 487 A.2d 16, 20 (1985). An evidentiary ruling may be reversed only if the complaining party establishes that it was error to admit the challenged evidence and that prejudice occurred. R.P. Clarke Personnel Inc. v. Commonwealth National Bank, 384 Pa. Super. 524, 535, 559 A.2d 560, 565 (1989). “‘Prejudice’ does not mean ‘detrimental to a party’s case,’ but rather ‘an undue tendency to suggest decision on an improper basis. ’ ” Jackson v. Spagnola, 349 Pa. Super. 471, 477, 503 A.2d 944, 947 (1986), allocatur denied, 514 Pa. 643, 523 A.2d 1132 (1987). Consequently, a new trial is warranted only when the improperly admitted evidence affected the jury’s verdict. Warren v. Mosites Construction Co., 253 Pa. Super. 395, 404, 385 A.2d 397, 401 (1978). With these principles in mind, it is clear that a new trial is not warranted in the instant case on the basis of any alleged evidentiary errors.

One evidentiary error alleged by defendants concerns the testimony of defendants’ expert witness, Serge Borichevsky. Defendants claim that this court erred in permitting plaintiff to cross-examine Mr. Borichevsky about a Bucks County Housing Authority inspection report dated June 9, 1994. See exhibit D-6. On direct examination, Mr. Borichevsky testified that he reviewed the inspection report in connection with analysis of plaintiff’s June 5, 1994 accident. N.T., 3/9/99, pp. 52-53. On cross-examination, he testified that he used the inspection report in drafting his own report. N.T., 3/9/99, pp. 64-66.

Mr. Borichevsky testified that the inspection report reflects an inspection by Bucks County that gave defendants a failing grade. Deficiencies listed in the inspection report included the collapsing of the front steps, a leak in the hallway ceiling and peeling paint. The inspection report also called for the repair of these problems. N.T., 3/9/99, pp. 79-80.

Essentially the same evidence contained in the inspection report was introduced without objection during plaintiff’s cross-examination of defendants’ resident manager. N.T., 3/9/99, pp. 29-30. Mr. Borichevsky testified that he had heard defendants’ resident manager quote from the inspection report in her testimony. N.T., 3/9/99, p. 66.

The cross-examination of Mr. Borichevsky was proper. Rule 705 of the Pennsylvania Rules of Evidence states that an expert must testify as to the facts or data on which his or her opinion is based. Rule 705 does not change the common law. See e.g., Kozak v. Struth, 515 Pa. 554, 560, 531 A.2d 420, 423 (1987) (requiring the disclosure of facts used by an expert in forming an opinion). This court correctly ruled that, because defendants’ resident manager mentioned the inspection report and because Mr. Borichevsky relied on the inspection report in forming his opinion, Mr. Borichevsky could be cross-examined about it. N.T., 3/9/99, pp. 73-74.

Even if the cross-examination was not proper, defendants were not prejudiced by it. Essentially the same evidence was introduced, without objection, during plaintiff’s cross-examination of defendants’ resident manager. N.T., 3/9/99, pp. 29-30. Further, defendants have not otherwise proven that any prejudice was suffered due to Mr. Borichevsky’s testimony.

A second evidentiary error alleged by defendants concerns the exclusion of evidence. Defendants claim that this court erred in granting plaintiff’s motion in limine, and preventing Dr. Victor Frankel to testify regarding instances in which plaintiff experienced dizziness and difficulty balancing. N.T., 3/9/99, p. 13. The testimony at issue is as follows:

“Q. All right. Doctor, I want to redirect your attention to your review of the plaintiff’s medical records. Was there anything in the plaintiff’s medical history in June of 1994 which impacted or was relevant to her ability to ambulate?
“A. Well, as I stated, part of the medical records that were available to me were the records of the Bristol Family Medical Center. There were — there were — there were references in the notations there to trouble balancing in the past....
“A. Yes. As I stated, in the Bristol Family Medical Center records, there was reference in September of ’93 and March of ’94 of severe dizziness and trouble balancing.” Deposition of Dr. Victor Frankel, pp. 18-19; N.T., 3/9/99, p. 8.

Case law makes clear that defendants’ proposed evidence was properly excluded:

“It is well established that it cannot be proven that a person committed an act by showing that that person committed a similar act in the past. Levant v. Wasserman, 445 Pa. 380, 382-83, 284 A.2d 794, 796 (1971). There must be some connection or relation between the prior and present acts. Id. In a personal injury case, that relation is often similar injuries. See Papa v. Pittsburgh PennCenter Corp., 421 Pa. 228, 218 A.2d 783 (1966) (‘Testimony concerning any prior fall [is] not admissible for any purpose unless the injuries from that alleged accident [can] be connected to those claimed in the present suit, so as to raise the inference of a pre-existing condition.’).” Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 261, 687 A.2d 1157, 1160 (1997).

Valentine held that the trial court erred when it allowed the defendant to present evidence of two prior falls by a plaintiff in an action arising from a slip and fall in the defendant’s supermarket. The Superior Court rejected the trial court’s claim that evidence of plaintiff’s two prior falls was relevant. In so doing, the Superior Court concluded:

“The only purpose of this evidence [of the two prior falls]... was to allow the jury to infer that because [plaintiff] had fallen for no specific reason in the past, he probably just fell on his own this time too. This conclusion, however, is impermissible. Therefore, we find that the trial court abused its discretion in admitting evidence of [plaintiff’s] two prior falls.” 455 Pa. Super, at 262, 687 A.2d at 1160.

In the instant case, Dr. Frankel failed to connect the episodes of dizziness and balance problems to the June 5, 1994 accident. Without evidence connecting the past incidents to the accident introduction of those incidents would only serve to improperly create an inference that plaintiff fell due to dizziness and balancing problems. Consequently, this court barred the introduction of Dr. Frankel’s testimony on the subject.

4. Defendants’ Motion for a Remittitur Was Properly Denied

The decision to order remittitur is committed to the discretion of the trial court and will not be reversed absent an abuse of discretion. Taylor v. Celotex Corp., 393 Pa. Super. 566, 595, 574 A.2d 1084, 1099 (1990). Re-mittitur is proper when it is apparent that the jury returned a verdict “excessive in amount and clearly beyond what the evidence warrants. . . .” Id. at 594, 574 A.2d at 1098, quoting Daley v. John Wanamaker Inc., 317 Pa. Super. 348, 352, 464 A.2d 355, 357-58 (1983). However, the large size of a verdict is in itself not evidence or proof of excessiveness. Mecca v. Lukasik, 366 Pa. Super. 149, 162, 530 A.2d 1334, 1340 (1987).

The standard to be used in determining whether re-mittitur should be granted is whether the award of damages “falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.” Doe v. Raezer, 444 Pa. Super. 334, 340, 664 A.2d 102, 105 (1995), allocatur denied, 544 Pa. 630, 675 A.2d 1248 (1996). Consequently, “[t]he trial court may grant a request for a remittitur only when a verdict that is supported by the evidence suggests that the jury was guided by partiality, prejudice, mistake or corruption.” Id.

The factors to be considered in determining whether a verdict is excess include (1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely subjective testimony ..., (3) whether the injury will affect the plaintiff permanently, (4) whether the plaintiff can continue with employment, (5) the size of the plaintiff’s out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint. Id. at 341-42, 664 A.2d at 105-106.

In light of these principles, it is clear that the jury’s verdict was not excessive in the instant case. Plaintiff testified that immediately after she stubbed her toe and fell, her knee became very swollen. N.T., 3/8/99, p. 18. Plaintiff stated that the pain felt as though she had broken her kneecap. N.T., 3/8/99, p. 19.

Plaintiff underwent physical therapy for seven or eight months, with no significant improvement. N.T., 3/8/99, pp. 19-20. During that time, she experienced pain, discomfort, stiffness and swelling. N.T., 3/8/99, p. 21.

Plaintiff had surgery in August of 1995. After the surgery, plaintiff woke up in a tremendous amount of pain and vomited for hours. Plaintiff was placed in a brace with steel rods down the side of her leg. She was told not to put any weight on her leg for 30 days. Because of the surgery, she missed a semester at Bucks County Community College. She was on crutches for six to eight weeks. Plaintiff has scars on her knee as a result of the surgery. N.T., 3/8/99, pp. 26-28.

Dr. Evelyn Witkin M.D. has treated plaintiff from June of 1995 to the present. Dr. Witkin stated that an examination of plaintiff’s knee showed that she had atrophy in her left quadriceps, fluid above the kneecap, and a kneecap that would shift easily, all of which were indications of a pathology of the knee. Deposition of Dr. Evelyn Witkin M.D., pp. 10-12. Dr. Witkin said that plaintiff complained of weather-related pain, a weak sensation in the knee, the knee would buckle unexpectedly, difficulty in walking distances, inability to run, and problems with stairs. Deposition at 10-13.

Dr. Witkin further stated that plaintiff’s injuries include a disarrangement of the interior structures of the kneecap, tears of the meniscus and inflammation of the ligaments connected to the kneecap, all of which required surgery to repair. Deposition at 15-20. As a result of the trauma to the kneecap from her fall, plaintiff has developed degenerative arthritis and her quadriceps remain atrophied. Deposition at 22-23.

Dr. Witkin testified that plaintiff’s condition and problems have improved only slightly between the August 1995 surgery and the date of the time of trial. Dr. Witkin stated that plaintiff still feels as though her left leg will give way or buckle and continues to have difficulty with steps, walking and sitting for any length of time. Deposition at 22-23. Dr. Witkin said plaintiff continues to be treated with pain relievers and other medication. Ever since her surgery, plaintiff requires cortisone injections in her left kneecap. A knee brace is always worn to prevent her knee from buckling. Plaintiff also undergoes physical therapy. Deposition at 23-24.

Dr. Witkin testified that plaintiff’s knee problems will not improve. Deposition at 26. She said plaintiff continues to suffer from pain and will continue to do so in the future. Deposition at 27-28. Dr. Witkin said she contemplates treating plaintiff in the future with hyalgen injections, which have to be performed five times a year. Deposition at 24-25. Additionally, more surgical procedures in the future remain a possibility. Deposition at 28.

As a result of the accident, plaintiff’s lifestyle has changed. Plaintiff testified that she has problems walking distances and walking up an incline. She is in pain when she stands or sits for a long period of time. She has difficulty riding in a car for any length of time. N.T., 3/8/99, pp. 32-33. In addition, she is limited in the activities she can perform with her children. Plaintiff cannot ice skate or roller skate with her daughter, or participate in her karate classes as she did before the accident. N.T., 3/8/99, pp. 33-34.

Plaintiff’s mother, Janet Garrison, testified that as a result of her fall, plaintiff cannot go shopping or stand up for any length of time. Ms. Garrison testified that plaintiff’s leg “gets all purplishy and it is swollen and she is crying and complaining about how much it hurts” when it rains in the winter. She also said that plaintiff is unable to do normal activities with her children. N.T., 3/8/99, p. 51.

The above facts demonstrate that the jury’s verdict was not excessive. Plaintiff incurred a serious, debilitating and permanent physical injury that required surgery. Plaintiff has not fully recovered from the injury. She has scars on her knee as a result of the surgery. She is required to undergo cortisone injections into her kneecap. She is required to wear a TENS unit and a knee brace. N.T., 3/8/99, pp. 28-29. She cannot walk or sit for long periods of time. She cannot interact with her children the same way she did before the accident. She has experienced five years of pain and the prognosis is that she will continue to experience pain.

The size of the verdict was not the result of an award for future medical expenses or sympathy for plaintiff. It is improper to “presume that the jurors disregarded their duty and the instructions of the court.” Commonwealth v. Stoltzfus, 462 Pa. 43, 55, 337 A.2d 873, 879 (1975). The law presumes that the jury followed the court’s instructions. Commonwealth v. Jones, 542 Pa. 464, 490, 668 A.2d 491, 504 (1995). The facts are sufficient to support the presumption. Taking into consideration the pain and suffering plaintiff has experienced since the accident due to her permanent injury, the verdict in this case “falls within the uncertain limits of fair and reasonable compensation_” Doe v. Raezer, 444 Pa. Super, at 340, 664 A.2d at 105.

It is for the above reasons that the order of June 22, 1999 was entered.


author: DEVLIN SCOTT, J„

text:
    Dragani v. Dragani

      C.P. of Bucks County,
    no. A06-98-61559A-23.

      Itzchak E. Kornfeld, for plaintiff.

      Emil Iannelli, for defendant.
    June 22, 1999
   DEVLIN SCOTT, J„

Anthony Dragani, husband, has appealed our May 5, 1999 order granting the petition for protection from abuse filed by Carolyn Dragani, wife. We offer this opinion in support of our decision.

The parties were married in 1982 and divorced a few years later. They then remarried in 1986 after the birth of their first child. There were three children born of the marriage; Peter, 13 years old, Christopher, 11 years old, and Michael, 9 years old. Husband has been employed by the Conrail Police Department in Newark, New Jersey for 22 years. He currently holds the rank of lieutenant. Wife has worked outside the home for approximately two years, cleaning houses. At the time of the hearing, the parties had been informally separated for at least several weeks. Husband worked nights and Wife remained away from the parties’ house during the day. She then came back to the home to stay with the children the nights when Husband went to work.

At the hearing on May 5, 1999, Wife testified to two recent incidents of abuse. The most recent incident occurred on April 18,1999, when Wife came to the marital residence at approximately 4 p.m. Husband was scheduled to work that evening. She testified that Husband cornered her and said he was going to kill her. When she tried to get out the garage door, Husband slammed the door on her. She had bruises on her legs and upper right underarm as a result. Photographs were introduced which depicted the bruises. (Exhibits P-1 and P-2.) Wife continued to try to get away but Husband tackled her to the floor. The incident lasted approximately 15 minutes during which Wife tried to crawl across the den floor and get out a door but was blocked repeatedly by Husband. She went back and forth across the den floor. Husband had his hand over her mouth at some point and she could not breathe. She was finally able to get out through the garage door and get away in her car. During this incident, Husband had grabbed her by her blouse in the back and it ripped. The ripped blouse was produced as an exhibit at the hearing. (Exhibit P-3.) The parties’ children witnessed at least part of this incident. Wife filed a report with the police later that day. On cross-examination, Wife denied that it was the children who had physically tried to prevent her from leaving. She indicated that she would not have been stopped by any of them, as the children did not weigh enough. Wife weighed approximately 115 pounds and Husband weighed approximately 215 pounds.

The other incident to which Wife testified in detail occurred on March 17, 1999. At that time when Wife came to the house in anticipation of Husband going to work there was another confrontation. Husband cornered Wife. When she tried to get away, he slammed the door to the basement on her finger. He told her she was not going anywhere. On cross-examination, Wife testified that she had not consumed any alcohol on either occasion. Wife also testified that she feared Husband’s possible use of his guns. (N.T., p. 12.)

Husband then testified as to his version of the events on both dates. He indicated that Wife has “an attitude.” (N.T., p. 41.) He said that on April 18,1999, Wife smelled like alcohol and that her eyes were funny. He acknowledged some physical interaction but claimed it was only to prevent Wife from leaving the house and driving drunk. He claimed that the children participated in trying to stop Wife from leaving. On cross-examination, Husband did acknowledge that the police report which Wife filed on April 18,1999 indicated that Wife was at the police station at 6:30 p.m., but there is no mention of any alcohol in the police report.

Even though he had filed for divorce in 1998, Husband stated that he wanted to reconcile with his Wife and that he loved her very much. The parties had attempted a reconciliation for several months after the divorce was filed. However, this reconciliation was not permanent. A principal source of tension between the parties at the time of the hearing was Wife’s absence from the home when Husband was there. He did not want her living away from the house at any time.

Both parties made reference to other prior violence but were not specific. (See N.T., p. 12,1. 4 and p. 34,1. 2.) Wife cried frequently throughout the hearing. During Wife’s testimony, Husband was very agitated and appeared angry. He seemed barely in control. He glared at Wife frequently.

We found Wife’s testimony credible. We did not find Husband’s testimony credible. At the conclusion of the hearing on May 5, 1999, we entered a one-year protection from abuse order which included the term that Husband was not to abuse, harass, stalk or threaten Wife. We also entered the Brady Indicator as part of this order. Husband then filed this timely appeal.

Husband has filed the following concise statement of matters complained of on appeal:

“(1) It was error for the court to admit photographs without proper authentication.
“(2) It was error for the court and an abuse of discretion to decide the matter before hearing all the evidence and to capriciously disbelieve competent evidence.
“(3) The order by its terms does not explicitly prohibit the use, attempted use, or threatened use of physical force against Wife that would reasonably be expected to cause bodily injury.
“(4) The evidence, taken as a whole, does not support the entry of a protection from abuse order.
“(5) The court erred in issuing a protection from abuse order in that the evidence does not establish that Wife suffered bodily injury.
“(6) The evidence is insufficient to support the entry of a Brady Indicator.
“(7) The form of the order is unconstitutionally over-broad in that as drawn, it requires a Brady Indicator in every case in which a protection from abuse order is entered.”

The matters in this statement fall into two categories: (A) Issues involving the evidence at the hearing and whether a protection from abuse order should have been entered; and (B) Issues involving the Brady Indicator. We will discuss each of these issues below.

ISSUES INVOLVING THE ADMISSIBILITY AND SUFFICIENCY OF THE EVIDENCE AT THE HEARING

1. It Was Not Error for the Court To Admit Photographs Depicting the Abuse

At the hearing, Husband objected to the admission of the two photographs, (P-1 and P-2), on the basis that the photographer was not there to authenticate the photographs. Wife testified that the pictures were taken on April 19, 1999 by Paula Narrone. Wife testified that the photographs accurately depicted the bruises she received from Husband on April 18, 1999. It was Husband’s position throughout the hearing that Paula Narrone had a relationship with Wife. (See N.T., p. 53.)

Under the Pennsylvania Rules of Evidence, photographic evidence may be authenticated by a witness who has personal knowledge of what the picture depicts. Pa.R.E. 901(b)(1). Also see, Commonwealth v. Rovinski, 704 A.2d 1068 (Pa. Super. 1997). It is not required that the photographer be the one to testify as to the authenticity. Aiello v. SEPTA, 687 A.2d 399 (Pa. Commw 1996). Under the circumstances of this case, we found Wife’s testimony sufficient to authenticate the photographs.

2. The Court Did Not Decide the Matter Before Hearing All the Evidence

Husband claims that this court decided the matter before hearing all the evidence. We disagree. After we received Husband’s statement of matters complained of on appeal, we entered an order on June 4,1999 directing Husband to file a supplemental statement of matters, “stating the specific portion of the record to which appellant is referring in concise statement number 2.” Husband’s response was as follows:

“In concise statement number 2, appellant is referring to the notes of testimony of May 5, 1999 at pages 16 through 19 and 32 through 63.”

Pages 16 through 19 deal with objections by Wife’s counsel as to Husband’s cross-examination of Wife on the issues of the reason for her absence from the home and her motivation in filing the petition. A review of this portion of the record reveals that we permitted Husband to ask any relevant questions on these issues.

Pages 32 through 63 deal with the direct examination of Husband. We find the supplemental statement is too general a response to ascertain what specific issue Husband is raising in connection with his direct testimony. In any event we did not reach a decision until after the conclusion of all the evidence. We listened to both parties before entering our order.

3. The Evidence Established That Wife Sustained Bodily Injury and Warranted the Entry of a Protection From Abuse Order

We found Wife’s testimony credible that Husband had inflicted the bruises on her. Wife sustained bodily injury. We also found that this was not an isolated incident. Even at the time of the hearing, Husband continued to be very upset with Wife. In addition, his desire for reconciliation did not appear to be reciprocated. We considered this a volatile situation that could easily re-suit in further abuse if no order were entered. A protection from abuse order was warranted.

ISSUES INVOLVING THE BRADY INDICATOR

The issues that Husband raises in his concise statement that relate to the Brady Indicator are as follows:

“(1) The order by its terms does not explicitly prohibit the use, attempted use, or threatened use of physical force against Wife that would reasonably be expected to cause bodily injury.
“(2) The evidence is insufficient to support the entry of a Brady Indicator.
“(3) The form of the order is unconstitutionally over-broad in that as drawn, it requires a Brady Indicator in every case in which a protection from abuse order is entered.”

Before discussing these issues, we note that the Brady Indicator has recently been added to the standard protection from abuse form. It is called the Brady Indicator because it tracks relevant provisions of the federal Brady Law relating to the transportation, ownership or possession of firearms. The Brady Indicator is paragraph 12 on the standard protection from abuse form mandated by Pa.R.C.R 1905. It states as follows:

“(A) 12. Brady Indicator.
“(1) (A) The plaintiff or protected person(s) is a spouse, former spouse, a person who cohabitates or has cohabited with defendant, a parent of a common child, a child of that person or a child of the defendant.
“(2) (A) This order is being entered after a hearing of which the defendant received actual notice and had an opportunity to be heard.
“(3) (A) Paragraph 1 of this order has been checked to restrain the defendant from harassing, stalking or threatening plaintiff or protected person(s).
“(4) (A) Defendant represents a credible threat to the physical safety of plaintiff or other protected person(s).
“Or
“(A) The terms of this order prohibit defendant from using, attempting to use or threatening to use physical force against plaintiff or protected person that would reasonably be expected to cause bodily injury.” This provision was adopted March 9, 1998 and became effective July 1, 1998.

The explanatory comment to Pa.R.C.P. 1905 states in relevant part:

“I. General use of forms
“The provisions in the form petition and orders reflect the most common forms of relief available under the Protection from Abuse Act. . . . Since all of the provisions will not necessarily apply in every case, the forms adopt a checkbox method that requires the user to affirmatively check only those provisions which are applicable to his or her situation....
“II. The Brady Law
“Paragraph 12 of the final protection order reflects what are known as the ‘Brady’ provisions of the federal Violent Crime Control and Law Enforcement Act of 1994 (PL. 103-322), codified at 18 U.S.C. §922(g). These provisions amend the Gun Control Act of 1968 to extend the prohibitions relating to the possession, receipt and purchase of firearms and ammunition to persons who are subject to a final protection order, if the order meets the following four criteria: (1) the order must have been entered after a hearing of which the defendant received actual notice and had the opportunity to participate; (2) the plaintiff or protected person is an ‘intimate partner’ within the meaning of 18 U.S.C. §921(a)(32), or a child of an intimate partner, or a child of the defendant; (3) the terms of the order restrain defendant from harassing, stalking, or threatening the plaintiff or protected person; and (4) the order includes a finding that the defendant represents a credible threat to the physical safety of the intimate partner or child or by its terms explicitly prohibits the use, attempted use or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.. ..
“The Brady Indicator is a mandatory field for entry of a protection order into the national NCIC file, i.e., federal data entry agencies are required to indicate by a ‘yes’ or ‘no’ response whether a final protection order meets these criteria for disqualifying a defendant from possessing or purchasing firearms or ammunition. Thus, if all four provisions of paragraph 12 are affirmatively checked, the order will be entered into the statewide registry and the NCIC file as a ‘yes’ response indicating that the defendant may be subject to prosecution by the appropriate authorities under federal law if he or she possesses, receives or purchases firearms at any time while the order is in effect. If all four provisions have not been checked, then the order is entered as a ‘no’ response indicating that the order is not Brady-eligible.”

We now turn to the specific issues that Husband raises on appeal with respect to the Brady Indicator.

1. Order by Its Terms Does Explicitly Prohibit the Use, Attempted Use, or Threatened Use of Physical Force Against Wife That Would Reasonably Be Expected To Cause Bodily Injury

The order we entered on May 5, 1999 prohibits Husband from abusing, harassing, stalking or threatening Wife. Abuse is defined under the Protection from Abuse Act in relevant part as follows:

“ ‘Abuse.’ The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
“Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury ...
“Placing another in reasonable fear of imminent serious bodily injury ...
“Knowingly engaging in a course of conduct or repeatedly committing acts towards another person, including following the person, without proper authority under circumstances which place the person in reasonable fear of bodily injury

It is clear that, in light of the definition of abuse, that paragraph 1 of order which prohibits Husband from abusing Wife, meets the criteria that the order explicitly prohibit the use, attempted use, or threatened use of physical force that would be expected to cause bodily injury.

2. The Evidence Is Sufficient To Support the Entry of a Brady Indicator

As discussed above, the evidence in this case clearly showed that Husband had abused Wife and that a protection from abuse order was warranted. All four criteria of the Brady Indicator form were met in this case:

(1) Wife was a spouse.

(2) There was a hearing.

Paragraph 1 of the order, prohibiting defendant from harassing, stalking or threatening Wife was entered.

The terms of the order prohibit defendant from using, attempting to use or threatening to use physical force against Wife that would reasonably be expected to cause bodily injury (this provision is discussed in the concise statement above).

As discussed below, in this case, we entered the Brady Indicator because Husband had owned or possessed firearms.

3. The Form of the Order Is Not Unconstitutionally Overbroad

We initially note that Husband failed to raise this issue with this trial court. Husband did not file a motion in limine challenging the standard form of the order which was part of the petition served on him. He did not file a petition for reconsideration on the issue of the Brady Indicator after hearing. Husband did file a petition for a supersedeas on May 13,1999, but did not raise the issue of the constitutionality of this form in his supersedeas petition. Under the rules of appellate procedure, Husband is required to raise such issue with the trial court. Pa.R.A.P. 302(a) states as follows:

“General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”

Even an issue such as the constitutionality of the standard form is waived unless raised before the trial court.

See Commonwealth v. Robinson, 543 Pa. 190, 670 A.2d 616 (1995). Therefore, we believe that Husband has failed to preserve this issue for appellate review.

Defendant does not state exactly what constitutionally protected right is violated by the use of this form. However, since he objects to the entry of the Brady Indicator, we presume he is referring to the prohibition from owning or possessing firearms. The federal courts have concluded that the right to bear arms guaranteed by the Second Amendment to the Federal Constitution is a collective rather than an individual right and applies only to the right of the state to maintain a militia, not to any individual right to bear arms. United States v. Warin, 530 F.2d 103 (1976); United States v. Miller, 307 U.S. 174, 59 S.Ct. 816 (1939). The Pennsylvania Constitution, Article I, Section 21 also considers the issue of firearms. It states as follows:

“The right of the citizens to bear arms in defense of themselves and the state shall not be questioned.”

However, the Pennsylvania Supreme Court has ruled that the state may regulate the possession of such firearms. See Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152 (1996). Reasonable regulation in gun control law is a valid exercise of the police power of the Commonwealth. Commonwealth v. Ray, 218 Pa. Super. 72, 272 A.2d 275 (1970), vacated on other grounds, 448 Pa. 307, 292 A.2d 410 (1972). It is clear that it is a reasonable regulation of the police powers of the Commonwealth to prohibit someone who has been found to have engaged in domestic violence from owning or possessing firearms.

In any event, this form of order is not unconstitutionally overbroad. Defendant argues that the Brady Indicator is mandated every time a protection from abuse order is entered. Even if that were true, we do not believe that this would make the standard form unconstitutionally overbroad. It would simply prohibit anyone who has been found after a hearing to have engaged in domestic violence from owning or possessing a firearm for the duration of the order. However, as part I, the general comments to Pa.R.C.P. 1905 which is cited above indicate, every provision of the form is not applicable to every case. As part II of the comments to Pa.R.C.P. 1905 also cited above states, all four subparts of paragraph 12 must be checked off for the Brady Indicator to apply. There is nothing in the form which mandates that the Brady Indicator be checked off in every case as Husband contends.

In this particular case, we checked off the Brady Indicator because there had been domestic abuse and Husband had a history of owning or possessing firearms. We found the Brady Indicator applicable to such a situation.

For the above reasons we entered our order of May 5, 1999.

      . Matters complained of on appeal 4 and 5.

      . 18 U.S.C. §922(g).

      . 23 Pa.C.S. §6102.

      . On June 18, 1999, the Superior Court granted a supersedeas as to the Brady Indicator for a firearm that Husband carries at work.