author: FRIEDMAN, J.,

text:
    McKenna v. OpenWebs Corporation

      Kevin K. Douglass, Alan B. Rosenthal and John J. Edson, for plaintiff.

      Scott L. Vernick and William L. Stang, for defendant.
    September 13, 2005
   FRIEDMAN, J.,

INTRODUCTION

The captioned case presents claims based on alternative theories of recovery. According to plaintiff, either there was a de facto merger of defendants OpenWebs and CarParts which renders CarParts liable for OpenWebs’ breach of plaintiff’s employment contract or, if the facts found by the court do not make out a de facto merger, there is nevertheless ample evidence to support the alternative claim based on CarParts’ tortious interference with plaintiff’s employment contract with OpenWebs. If the de facto merger claim is well-founded, plaintiff’s damages would include an award under the Wage Payment and Collection Law (Wage Act), 43 P.S. §260.1 et seq.; if the only claim made out is tortious interference, then plaintiff’s compensatory damages from CarParts would be limited to the failure to pay severance pay, etc. upon OpenWebs’ firing plaintiff without cause. CarParts does not dispute plaintiff’s calculations of his damages but limits its opposition to plaintiff’s entitlement to any award from CarParts, whether based on the conduct of Open Webs or on CarParts’ own conduct.

The court concludes there was a de facto merger of Open Webs and CarParts. In addition (although this aspect of the decision could be regarded as moot), the court concludes that the credible evidence shows that CarParts tortiously interfered with plaintiff’s employment contract with Open Webs.

DISCUSSION

The credible evidence shows that CarParts made it a condition of its merger with or acquisition of Open Webs that plaintiff be fired. The sole reason for this was plaintiff’s entitlements under his employment contract with Open Webs. As a result of CarParts’ conduct, Open Webs’ Brad Oberwager fired plaintiff. Mr. Oberwager’s testimony that the firing was for other reasons is not at all credible.

Once plaintiff had been fired, CarParts then re-structured the deal with OpenWebs so that it would buy only OpenWebs’ assets and would assume only certain of OpenWebs’ liabilities. In a kind of a belt-and-suspenders approach to doing plaintiff out of his contract benefits, CarParts also significantly reduced the consideration to be paid to OpenWebs’ shareholders. The court’s recollection of the credible evidence is that CarParts acquired virtually every asset of OpenWebs and assumed all but one of OpenWebs’ significant liabilities, that to plaintiff under the employment contract. See the asset purchase agreement, plaintiff exhibit 1, ¶1.6 and schedule 1.6.

There is no doubt that plaintiff’s employment contract with OpenWebs was extremely favorable to him. There is no doubt, based on the credible evidence, that plaintiff was worth eveiy penny of that contract. There is no doubt that the contract was fair, reasonable, and beneficial to OpenWebs at the time it was executed. Lastly, there is no doubt that OpenWebs had no “cause” to fire plaintiff. As a result, plaintiff’s contract entitles him to damages under the Wage Act from OpenWebs. He is also entitled to damages from CarParts for its tortious interference with his employment contract with OpenWebs. See also, the “Employment agreement with A. J. McKenna,” plaintiff exhibit 3, ¶¶4.2, 5.2.

This leaves the issue of whether or not CarParts, as asset purchaser, is also liable for OpenWebs’ contract and Wage Act obligation to plaintiff. Ordinarily, as set forth in Elf Atochem North America v. United States, 908 F. Supp. 275 (E.D. Pa. 1995), an asset purchaser is not liable for the obligations of the asset seller. However, “there are four traditional exceptions to this rule that make a purchaser a successor, and therefore liable [for the seller’s obligations]:

“(1) The purchaser expressly or impliedly agrees to assume the seller’s obligations;
“(2) the transaction amounts to a consolidation or de facto merger;
“(3) the purchaser is a mere continuation of the seller; or
“(4) the transaction is fraudulent to avoid obligations.” Elf, 908 F. Supp. at 278.

Elf which was greatly relied on by CarParts, involved the Comprehensive Environmental Response, Compensation and Liability Act of 1980, more commonly known as CERCLA. The dispute concerned the cleanup of a CERCLA Superfund site with contamination dating from 1942. Elf’s predecessor, Pennsalt, had purchased the assets of Elko, the original owner of the chemical plant. The question raised was whether or not the business of Pennsalt was a continuation of Elko’s business. In other words, E//deals with a different exception to the general rule than does the instant case. Elf has no bearing on the exception asserted in the instant case, a de facto merger of OpenWebs and CarParts.

Plaintiff cites two cases much more on point, United States v. Keystone Sanitation Co., U.S. District Court docket no. CIV.A 1:CV-93-1482, Westlaw citation no. 1996 WL 672891 (M.D. Pa. 1996), and United States v. Exide Corp., US. District Court docket no. CIV.A 00-CV-3057, Westlaw citation no. 2002 WL 319940 (E.D. Pa. 2002). Although both are unpublished memorandum opinions, which are not usually to be relied on, they are clear and articulate recitations of the applicable law, which is found in Shane v. Hobam Inc., 332 F. Supp. 526 (E.D. Pa. 1971) and Knapp v. North American Rockwell Corp., 506 F.2d 361, 367 (3d Cir. 1974). In both Keystone and Exide, the court discusses the four exceptions to the general rule regarding non-liability and then focuses on the de facto merger exception. It seems that the Pennsylvania appellate courts have not addressed the de facto merger issue.

Each factor related to the de facto merger exception is quoted from Exide then discussed below; all four are present in the instant case, although the Keystone court suggests that, “[n]o one of the [four] factors is either necessary or sufficient to finding the existence of [the exception of] a de facto merger.” United States v. Keystone, slip opinion p. 4.

(1) “There Is a Continuation of the Enterprise of the Seller Corporation [OpenWebs], So That There Is Continuity of Management, Personnel, Physical Location, Assets, and General Business Operations ”

The credible evidence showed that CarParts bought every asset, assumed almost every unpaid liability, kept most of the key personnel including certain vice presidents, and continued the general business operations of OpenWebs. Although the nature of the business made physical location immaterial, CarParts even stayed at the OpenWebs location for a period of months. CarParts also continues to this day to use the OpenWebs name for at least one of its products or services.

(2) “There Is a Continuity of Shareholders Which Results From the Purchasing Corporation Paying for the Acquired Assets With Shares of Its Own Stock, This Stock Ultimately Coming To Be Held by the Shareholders of the Seller Corporation So That They Become a Constituent Part of the Purchasing Corporation ”

The shareholders of OpenWebs were given shares in CarParts. The fact that those shares were held in escrow until they became virtually worthless does not affect the validity of this factor. As stated in Exide, “under the de facto merger exception, there is no requirement that the seller acquire majority control of any specific percentage of the buyer, only that there be some continuity of shareholder ownership and control. In fact, one court [Keystone] has held that a seller acquiring a percentage as small as .0009 percent of the buyer nonetheless supported finding a de facto merger.” Exide, slip opinion p. 8.

(3) “The Seller Corporation [Here, OpenWebs] Ceases Its Ordinary Business Operations, Liquidates, and Dissolves As Soon As Legally and Practically Possible ”

Here, the transaction requires OpenWebs to “use its best efforts to wind-up, liquidate, dissolve and otherwise dispose of the business.” (Asset purchase agreement, ¶4.1.) As in Exide, “[tjhere is no indication that [OpenWebs] conducted, or had the capacity to conduct, any business as had [OpenWebs] before the transaction.” Exide (slip opinion at p. 9). Furthermore, the fact that OpenWebs “formally continues to exist as a shell” does not affect the de facto merger status of the transaction. See Exide (slip opinion at p. 9), citing Knapp.

(4) “The Purchasing Corporation [CarParts] Assumes Those Obligations of the Seller Ordinarily Necessary for the Uninterrupted Continuation of Normal Business Operations of the Seller Corporation [OpenWebs]”

The credible evidence shows that CarParts promised to service the OpenWebs contracts for its current customers. See plaintiff exhibit 1, schedule 1.6 (Bates number page D00047).

In summary, even though every one of the four factors need not be present for a de facto merger to have occurred, here, the credible evidence overwhelmingly shows all four are present and just as overwhelmingly supports the conclusion put forward by plaintiff. As a result, again as in Exide, “it is not inequitable to hold [CarParts] liable for [OpenWebs debt to plaintiff].” (Slip opinion p. 9.)

This leads us then to the question of what amount does OpenWebs, and therefore CarParts, owe plaintiff. CarParts has not adduced any evidence to suggest that plaintiff’s calculations of the OpenWebs contract obligation are incorrect. The court rejects the legal arguments of CarParts related to the validity of the employment contract at issue, the supposed competition by plaintiff with CarParts, the contention that plaintiff’s post-termination benefits are an unenforceable penalty, and so forth. There is no credible evidence to support those or any other of CarParts’ chief legal positions.

Under the credible evidence, plaintiff is entitled to $3,287,822.97, as set forth in plaintiff exhibit 96, plus reasonable attorneys’ fees from OpenWebs under the Pennsylvania Wage Payment and Collection Act 43 Pa.C.S. §260.9a(f). The amount of attorneys’ fees will be determined in accordance with the court’s usual procedure, set forth in the attached order. Because of the de facto merger of OpenWebs with CarParts, CarParts is liable for this amount as well.

CarParts is also directly liable for its own tortious interference with plaintiff’s contract with OpenWebs (since plaintiff was fired and his contract wrongly rej ected with the connivance of CarParts). Plaintiff’s damages flowing from this tort, while less than those under the Wage Act, are also substantial, being $2,511,258.38 as set forth in plaintiff exhibit 95. However, since this amount is already included in the award under the Wage Act, plaintiff may not recover it again.

As to the counterclaim of CarParts, it is without merit. An award in favor of McKenna must be entered on the counterclaim.

Plaintiff is entitled to an award of $3,287,822.97, plus counsel fees to be determined. See order attached hereto.

ORDER

And now, to-wit, September 13,2005, after consideration of the evidence presented and the arguments of counsel, the court having concluded, for the reasons set forth in the attached memorandum in support of order, that plaintiff is entitled to an award of damages in the amount of $3,287,822.97, plus an amount to be determined for reasonable counsel fees, it is hereby ordered that counsel for plaintiff file an affidavit setting forth the amount of his counsel fees incurred, along with detailed supporting information, including the fee agreement, the hourly rates charged, the number of hours spent, the type of work done, the dates the work was done, attorneys or paralegals by whom the work was done, as well as any other basis for the amount claimed, said affidavit to be filed no later than September 26, 2005.

It is further ordered that defendants respond no later than October 21, 2005, to the affidavit, if they contest the amount claimed, by filing a counter-affidavit, if appropriate, or by demanding an evidentiary hearing as to the amount of fees only. Alternatively, defendants may stipulate to the amount, only, of counsel fees without prejudice to their right to object to the award of any counsel fees.

Once the reasonable amount of plaintiff’s counsel fees has been determined, the court will enter its final decision, in accordance with Pa.R.C.P. 1038.

      . The other defendants, Woodward and Campbell, are no longer a part of this dispute.

      . See Restatement (Second) of Torts, §774A:
      “(1) One who is liable to another for interference with a contract or prospective contractual relationship is liable for damages for

        “(a) the pecuniary loss of the benefits of the contract or the prospective relation;
      “(b) consequential losses for which the interference is a legal cause; and
      “(c) emotional distress or actual harm to reputation, if they are reasonably to be expected as a result from the interference.
      “(2) In an action for interference with a contract by inducing or causing a third person to break the contract with the other, the fact that the third person is liable for the breach does not affect the amount of damages awardable against the actor; but any damages in fact paid by the third person will reduce the damages actually recoverable on the judgment.”

      . In Elf, the United States had two roles, as prosecutor under the EPA and as a defendant-owner of DDT manufacturing equipment. 908 F. Supp. at 227 n.2.


source: Caselaw Access Project

author: CEPPARULO, J.,

license: Public Domain

text:
    Northampton Township v. Reydler

      James J. Musial, for appellant.

      William E. Benner, Stephen P. Moyer, Timothy Duffy and Scott W. Semisch, for appellees.
    August 9, 2005
   CEPPARULO, J.,

I. INTRODUCTION

Northampton Township has appealed from this court’s decision of June 13, 2005, affirming the December 13, 2004 decision of the Northampton Township Zoning Hearing Board, which granted the application for special exception filed by John and Regina Reydler. This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

II. PROCEDURAL AND FACTUAL BACKGROUND

John and Regina Reydler purchased the property known as 48 Churchville Lane, Holland, Northampton Township, Bucks County, Pennsylvania (property) on May 28,2004. (See opinion of the Zoning Hearing Board of Northampton Township no. 2004-18, p. 1.) The property is comprised of about 0.66 acres and is zoned as R-2 single family residential district. (Id. at 1-2.) However, the property has been the subject of various nonconforming uses since 1938, including use as a business for the repair and manufacture of electric motors and a machine shop for the assembly of optical microscopes. (Id. at 2.) Immediately prior to the Reydlers’ purchase, the property was being used for the administrative offices, meetings and social functions of a veterans’ organization. (Id. at 3.)

On May 7,2004, the Reydlers filed an application for a special exception under section 140-60 of the Northampton Township Zoning Ordinance. The application requested the special exception in order to change the use of the property from the existing operation as a veterans’ center to a day-care facility for young children. The Reydlers did not seek any variances. On December 13, 2004, the Northampton Township Zoning Hearing Board granted the application subject to 15 conditions, which regulated the operation of the day-care facility. Northampton Township appealed the decision to the Court of Common Pleas of Bucks County and a Rule *27 conference was held in chambers on March 14,2005. Thereafter, the parties were ordered to file briefs addressing the merits of the action. On June 13,2005, this court issued an order affirming the decision of the Northampton Township Zoning Hearing Board in its entirety. Northampton Township now appeals from our June 13, 2005 order.

III. ISSUES

Northampton Township lists three issues on appeal. (See statement of matters complained of on appeal.) Those issues are: (1) whether the board committed an error of law or abused its discretion by determining that the Reydlers’ request to operate a day-care facility on the property did not require a variance to permit expansion or extension of the existing nonconforming use as a veterans’ center pursuant to Northampton Township Zoning Ordinance section 140-63; (2) whether the board committed an error of law in determining that Northampton Township had the burden to prove that the Reydlers’ request to use the property as a daycare required a variance; and (3) whether the board abused its discretion by imposing conditions on the approval of the special exception when the imposed conditions themselves result in the expansion or extension of the nonconforming use.

IV. ANALYSIS OF ISSUES

The standard of review for appeals from decisions of zoning hearing boards is well settled. “Since no additional evidence was presented subsequent to the board’s determination, the scope of our review is limited to determining whether the board committed a manifest abuse of discretion or an error of law in granting [or denying] the instant variances.” Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983). (citations omitted) “We may conclude that the board abused its discretion only if its findings are not supported by substantial evidence. . . . By ‘substantial evidence’ we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 555, 462 A.2d at 640. (citations omitted) Therefore, the inquiry of this court is limited to whether the board committed an error of law and whether substantial evidence in the record supports the board’s actions in granting the requested special exception subject to the conditions imposed by the board.

1. Whether the Board Committed an Errdr df Law or Abused Its Discretion by Determining That the Reydlers ’Request To Operate a Day-Care Facility on the Property Did Not Require a Variance To Permit Expansion or Extension of the Existing Nonconforming Use As a Veterans ’ Center Pursuant to Northampton Township Zoning Ordinance Section 140-63

The Northampton Township Zoning Ordinance section 140-63A reads as follows:

“No nonconforming use may be extended or expanded in any building or structure or in or on the lot on which it is located, nor may any nonconforming use be moved to a different position upon the lot on which it is located, so as to alter the use or its location which existed at the time that the use became nonconforming. Any person desiring to make any such change or alteration of a nonconforming use shall apply for a variance ....”

However, section 140-60 of the Northampton Township Zoning Ordinance provides that a “change from an existing nonconforming use is not permitted without approval by the Zoning Hearing Board as a special exception.” Thus, the threshold issue in this case is whether the Reydlers’ proposed use of the property as a day-care facility constitutes a change from one nonconforming use to another, which requires a special exception from the board, or whether such use constitutes an expansion or extension of an existing nonconforming use, which requires a variance from the board.

The township argues that the proposed use must be compared to the use that was in existence at the time the zoning ordinance was passed (not necessarily the existing use of the property) in order to determine whether an expansion or extension is being requested. We disagree. The township cites Hanna v. Board of Adjustment, 408 Pa. 306, 183 A.2d 539 (1962) in support of its position. The court in Hanna held that “[t]he nonconforming use which is within the orbit of protection of the law and the constitution is the nonconforming use which exists at the time of the passage of the zoning ordinance or the change in a use district under a zoning ordinance, not a new or different nonconforming use.” Id. at 313-14, 183 A.2d at 543.

While new and different nonconforming uses may not be constitutionally protected, it is within the discretion of a township to supply avenues for approval of such uses through zoning ordinances. In Fiechter v. Zoning Hearing Board of Pennsbury Township, 73 Pa. Commw. 253, 458 A.2d 616 (1983), the court said that, “[w]here the right to change to another nonconforming use is provided in a zoning ordinance, such a provision must be construed strictly so as to restrict nonconforming uses closely.” Id. at 256, 458 A.2d at 618. Thus, courts have recognized that a township may offer protection through a zoning ordinance for new and different nonconforming uses, even where those uses are not otherwise legally protected.

While the inquiry into a constitutionally protected nonconforming use may require examination of the use in existence at the time the zoning ordinance was passed, the inquiry into whether relief may be granted under a township’s zoning ordinance requires different consideration. “The terms of the ordinance govern the change from one nonconforming use to another and provide the parameters under which it must be considered.” Blancett-Maddock v. City of Pittsburgh Zoning Board of Adjustment, 163 Pa. Commw. 193, 198, 640 A.2d 498, 500 (1994). (citation omitted) “It is well-settled that the interpretation and application of ordinance terms are within the sole discretion of the board and will not be disturbed absent a demonstration that an abuse of discretion or an error of law was committed.” Morris v. South Coventry Township Board of Supervisors, 836 A.2d 1015, 1023 (Pa. Commw. 2003). (citations omitted) Further, “[t]o qualify as a continuation of an existing nonconforming use, a proposed use must be sufficiently similar to the nonconforming use so as not to constitute a new or different use.” Shaner v. Schuylkill County Zoning Hearing Board, 859 A.2d 859, 863-64 (Pa. Commw. 2004). (emphasis supplied)

Here, the terms of the Northampton Township Ordinance state that a variance is required where a person desires to extend or expand “the use or its location which existed at the time that the use became nonconforming.(Northampton Township Zoning Ordinance section 140-63A.) (emphasis supplied) The board concluded that section 140-63 referred to the time that the existing use became nonconforming (i.e., the date that the previous owner of the property was granted a special exception to use the property in a nonconforming manner), not the date of passage of the zoning ordinance. It is within the discretion of the board to interpret the terms of its zoning ordinance. Furthermore, in making the threshold determination of whether an applicant is seeking a continuation or expansion of a nonconforming use, it makes little sense to compare the proposed use to a use that is no longer in existence. It is impossible to continue or expand an operation that no longer exists. The proposed use would therefore always be new and different when the existing use is not the same as the use being made on the date of passage of the zoning ordinance.

In the case sub judice, there is no contention that the Reydlers desire to extend or expand either the existing use or the use that existed when the zoning ordinance was passed. Neither the Reydlers nor the board assert that the proposed use of the property as a day-care facility bears any resemblance whatsoever to the existing nonconforming use as a veterans’ affairs center. At all times, the request before the board was for a special exception to change from one nonconforming use to another. The Reydlers never asked for a variance to extend or expand the existing nonconforming use. Indeed, the township admits that “[cjlearly, the Reydlers’ application would change a nonconforming use (existing only by virtue of a prior special exception) to another use that is not permitted under the Township Zoning Ordinance. They proposed not merely a change in an existing nonconforming use, but a change to a new and vastly different nonconforming use.” (Memorandum of law in support of land use appeal of Northampton Township, p. 10.)

Despite asserting that the Reydlers seek a “new and vastly different nonconforming use,” the township maintains that the applicable section of the Northampton Township Zoning Ordinance is section 140-63, which governs extension and expansion of nonconforming uses. The board, however, concluded that the applicable section of the zoning ordinance is section 140-60, which governs changes from one nonconforming use to another. Bearing in mind that our standard of review allows reversal of the board only where there is insufficient evidence in the record to support the board’s findings, we will not disturb the determination that the applicable section is section 140-60. There is no evidence in the record to support a finding that the proposed use as a day-care center bears any resemblance to the existing use as a veterans’ affairs center. In fact, all parties seem to agree that the proposed use is a new and different use of the property. The proposed use cannot be an extension or expansion of the existing use because there is insufficient similarity between the two uses. Therefore, the Reydlers were required to apply for a special exception, rather than a variance.

2. Whether the Board Committed an Error of Law in Determining That Northampton Township Had the Burden To Prove That the Reydlers ’ Request To Use the Property As a Daycare Required a Variance

“We begin by stating that a zoning hearing board is the entity charged with the interpretation and application of the zoning ordinance. It is well settled that a zoning hearing board’s interpretation of its own zoning ordinance is entitled to great weight and deference from a reviewing court. . . . The basis of the judicial deference is the knowledge and expertise that a zoning hearing board possesses to interpret the ordinance that it is charged with administering.” Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 57-58 (Pa. Commw. 1999). (citations omitted) (footnote omitted)

“An ‘exception’ in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist.” Application of Devereux Foundation Inc., 351 Pa. 478, 483, 41 A.2d 744, 746 (1945). “The function of the board when an application for an exception is made is to determine that such specific facts, circumstances and conditions exist which comply with the standards of the ordinance and merit the granting of the exception.” Kotzin v. Plymouth Township Zoning Board of Adjustment, 395 Pa. 125, 127-28, 149 A.2d 116, 118 (1959). “Once an applicant for a special exception has established compliance with the specific objective requirements of that exception as set forth in the ordinance, the objectors to the proposed special exception have the burden of persuasion and the duty to go forward with evidence that the general, non-specific requirements have not been fulfilled.” Blancett-Maddock, 163 Pa. Commw. at 199, 640 A.2d at 501.

Here, the board found that the terms of the Northampton Township Zoning Ordinance require the Reydlers to obtain a special exception to change an existing nonconforming use to a new and different nonconforming use. This interpretation is entirely within the purview of the board and will not be disturbed by this court, as we have found no error of law or abuse of discretion. The board further found that the Reydlers presented evidence of facts and circumstances sufficient to demonstrate compliance with the standards set forth in section 140-60. Once the board determined that a special exception was warranted, the burden shifted to the protestors (i.e., the township) to show that the general and non-specific requirements for a special exception were not fulfilled. This burden includes the burden of showing that the applicants have failed to meet the most general requirement for a special exception imaginable — that a special exception is the appropriate form of relief for the applicants’ factual situation.

For the reasons given in this opinion, we have found that the record in this case supports the board’s determination that a special exception, rather than a variance, was the appropriate form of relief for the Reydlers. After the board found that the Reydlers fulfilled the requirements of the ordinance with regard to special exceptions, the burden shifted to the township, as protestors, to show that the Reydlers did not meet the general burden of showing that a special exception was the appropriate form of relief. Therefore, the board did not commit an error of law in placing this burden on the township.

3. Whether the Board Abused Its Discretion by Imposing Conditions on the Approval of the Special Exception When the Imposed Conditions Themselves Result in the Expansion or Extension of the Nonconforming Use

The Northampton Township Zoning Ordinance section 140-77D provides as follows:

“Special exceptions. Where this chapter has provided for stated special exceptions to be granted or denied by the board, the board shall hear and decide such request in accordance with the Municipalities Planning Code, as amended, and any other relevant statutes.”

The relevant portion of the Municipalities Planning Code provides:

“Where the governing body, in the zoning ordinance, has stated special exception to be granted or denied by the board pursuant to express standards and criteria, the board shall hear and decide requests for such special exception in accordance with such standards and criteria. In granting a special exception, the board may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance.” 53 P.S. 10912.1.

The Municipalities Planning Code provides that the provisions of zoning ordinances shall be designed to promote, protect and facilitate the public health, safety, morals and general welfare. See 53 P.S. 10604.

The board attached 15 conditions to the special exception granted to the Reydlers. The conditions require erection of a privacy fence, regulate the number of individuals allowed to occupy the property at one time, limit the hours and days of operation, prohibit public retail sales on the property, require that all applicable licenses and permits be obtained, limit playground construction, require security lighting, regulate parking facilities and transportation, prohibit delivery of supplies by commercial truck, require pavement of an access route, require compliance with noise and parking regulations, require certain plantings and regulate traffic flow. All of these conditions are designed to advance the public health, safety and welfare. Under the Municipalities Planning Code and Northampton Township’s own ordinance section 140-77D, the board has the authority to attach these reasonable conditions to the approval of the special exception.

V. CONCLUSION

The foregoing represents the reasons for this court’s order of June 13, 2005.


author: WRIGHT JR., Member,

text:
    In the Matter of Obringer

      Disciplinary Board Docket no. 160 D.B. 1997.
    March 24, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

WRIGHT JR., Member,

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

I. HISTORY OF PROCEEDINGS

On February 26,2004, petitioner, Robert H. Obringer, filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania. Petitioner was disbarred by order of the Supreme Court of Pennsylvania dated May 5, 1998. Office of Disciplinary Counsel filed a response to petition for reinstatement on May 6,2004, stating its concerns regarding petitioner’s ability to demonstrate that he engaged in a period of quantitative and qualitative rehabilitation.

A reinstatement hearing was held on September 10, 2004, before Hearing Committee 1.05 comprised of Chair Dennis T. Kelley, Esquire, and Members Thomas A. Brophy, Esquire, and Jayne A. Piarulli, Esquire. Petitioner was represented by Charles J. Cunningham III, Esquire. Petitioner testified on his own behalf and offered the testimony of three character witnesses. He produced letters from character witnesses.

On November 16,2004, the Hearing Committee filed a report and recommended that the petition for reinstatement be granted.

This matter was adjudicated by the Disciplinary Board at the meeting of January 19, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Robert H. Obringer. He was born in 1947 and was admitted to the practice of law in Pennsylvania in 1983. He currently resides at 244 S. Barrett Avenue, Audubon, NJ 08106.

(2) Petitioner was disbarred by order of the Supreme Court of Pennsylvania dated May 5, 1998, which disbarment took effect immediately.

(3) Petitioner’s disbarment was reciprocal discipline imposed under Rule 216 of the Pennsylvania Rules of Disciplinary Enforcement. Petitioner was disbarred in New Jersey by order dated August 13, 1997.

(4) Petitioner’s disbarment in New Jersey was based on his plea of guilty to one count of mail fraud in violation of 18 U.S.C. §1341.

(5) Petitioner was sentenced on September 19, 1997, by Judge JohnBissell of the United States District Court, District of New Jersey. He was sentenced to four years of probation, 400 hours of community service, six months of home confinement, a fine of $3,000 and a special assessment of$100.

(6) On July 12,2000, petitioner was granted early termination of probation. He completed his community service and paid all of his fines.

(7) The facts that led to petitioner’s criminal conviction are as follows:

(a) He was appointed by the Department of Justice to act as a bankruptcy trustee in the Chapter 11 case filed by Gaskill Construction Company. That Chapter 11 case was converted to a Chapter 7. Petitioner was entrusted with overseeing a bankruptcy estate of between $ 150,000 and $200,000.

(b) From the bankruptcy estate, petitioner paid taxes, professional fees, and creditors, as well as other expenses related to the bankruptcy. Two of the checks petitioner sent, totaling $20,000, were never cashed and were not returned.

(c)The U.S. trustee requested that the bankruptcy case be closed. Petitioner requested permission of the court to deposit $20,000 into the registry of the court as unclaimed funds. That money eventually would go to the federal government, if the creditors did not come forward. Petitioner was discharged as the trustee and the case was closed.

(d) Approximately two months after the bankruptcy was closed, petitioner devised a scheme to take the $20,000. He obtained a post office box and opened a bank account under a fictitious name. He wrote a letter on fake letterhead to the registry of the court claiming to be the entitled party and requesting release of the funds. The clerk of court sent him a check for $20,000.

(e) Petitioner paid $10,000 to the IRS, $5,000 for an American Express bill, and the rest for other credit card charges.

(8) Petitioner explained his criminal misconduct as motivated by greed and desperation.

(9) While petitioner was in the hospital recovering from cancer surgery, someone at his law firm discovered the cancelled checks drawn on the account for the fictitious firm. Petitioner’s partners confronted him and asked for an explanation.

(10) Petitioner told his partners he had done nothing criminal. He told them he was hiding money from his wife, from whom he had separated four months earlier. The partners were satisfied with this explanation.

(11) The next day petitioner called one of the partners and told him the truth about what he had done.

(12) The partners did an early distribution of partnership money in order to provide petitioner with sufficient funds to make restitution, which petitioner did.

(13) Petitioner and his partners sent a letter to the New Jersey Ethics Committee describing petitioner’s misconduct.

(14) Petitioner confessed his actions to the U.S. trustee.

(15) Petitioner went to the bankruptcy judges before whom he regularly appeared and told them of his misconduct, and petitioner did the same with several other people.

(16) Petitioner at all times cooperated with the authorities.

(17) While on probation, petitioner worked at P.R.S. International in Blue Bell, Pennsylvania, a company that does auditing of accounts. After six months, petitioner went to work as a project manager for Source One Management, counseling customers in areas of purchasing and financial controls.

(18) Petitioner currently is employed as director of bankruptcy and litigation services for Phillips and Cohen, which is a mid-sized collection agency with offices in New Jersey, Delaware and Florida.

(19) If reinstated, petitioner would like to work for a small law firm or a public interest law group.

(20) Petitioner teaches adult education courses for the University of Phoenix and Rosemont College, which are both located in Philadelphia. Petitioner teaches General Introduction to Studies, Religion, and Comparative Religions. Both institutions are aware that petitioner is a disbarred lawyer. If his license is reinstated, he is eligible to teach some law-related courses.

(21) Petitioner has been active with community organizations prior to and during his disbarment. He has been associated with the Lions Club since 1982.

(22) Petitioner was elected to the board of Camden Optometric, a United Way-funded agency in Camden, New Jersey, which provides vision care to the underprivileged. Even after petitioner was convicted and disbarred, he was still re-elected to this board, where he served from 1986 through 2002.

(23) Petitioner helped to found the Bankruptcy Trustees Association in South Jersey and held offices in that organization.

(24) Petitioner, along with several other lawyers, worked to set up the Bankruptcy Clinic at Rutgers Law School. The clinic supervises and monitors law students who counsel people considering bankruptcy or involved in bankruptcy proceedings.

(25) Petitioner fulfilled his Continuing Legal Education credits for reinstatement to the bar.

(26) Petitioner expressed sincere remorse for his misconduct.

(27) Three character witnesses testified on behalf of petitioner. These witnesses are credible.

(28) Barry Sharer is a C.P.A. and has known petitioner since 1984. Mr. Sharer did business with petitioner’s former law firm. Mr. Sharer opined that petitioner enjoys an excellent reputation in the community for honesty and trustworthiness.

(29) Morton Batt acts as a bankruptcy trustee, a state court receiver and a fiscal agent. He has known petitioner for 20 years. Mr. Batt has used petitioner as his attorney. He opined that petitioner has a good reputation in the community as an honest person. If petitioner is reinstated, Mr. Batt would hire him as his attorney.

(30) Joseph McCormick is an attorney who practices in Haddonfield, New Jersey. He has known petitioner since 1981. Mr. McCormick is an officer in the Camden County Bar Association and has sat on an ethics committee in New Jersey, similar in nature to a Hearing Committee in the Pennsylvania disciplinary system. Mr. McCormick opined that petitioner’s reputation in the community is excellent for truthfulness and honesty. Mr. McCormick would trust petitioner to represent him and his family in financial matters.

(31) Character testimony in the form of letters was moved into evidence by petitioner. These letters included one from Donald Levenson, a former partner of petitioner’s, who stated his opinion that petitioner has an excellent reputation as an honest and trustworthy person.

III. CONCLUSIONS OF LAW

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

(2) Petitioner has demonstrated by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law necessary to practice law in the Commonwealth of Pennsylvania.

(3) Petitioner has demonstrated that his resumption of the practice of law within the Commonwealth will be neither detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the public interest.

IV. DISCUSSION

This matter comes before the Disciplinary Board on a petition for reinstatement filed by Robert H. Obringer. Petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania dated May 5, 1998. 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 following disbarment is initially governed by the standard set forth by the Supreme Court in Office of Disciplinary 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.

Petitioner pleaded guilty to one count of mail fraud. In his capacity as a bankruptcy trustee, petitioner deposited unclaimed money with the court and then submitted a false claim in order to withdraw the money, which totaled $20,000. In order to effectuate this scheme, petitioner opened a bank account under a fictitious name and wrote a letter on fake letterhead to the registry of the court claiming to be the party entitled to the money. In

reliance on this letter, the clerk of court released the funds to petitioner, who used these funds to pay IRS debts and credit cards. Petitioner’s actions constituted a single instance of misconduct. No pattern of deception was discovered in any of petitioner’s prior cases.

While certainly serious in nature, this misconduct is not so egregious as to preclude consideration of petitioner’s request for reinstatement. In the Matter of Perrone, 565 Pa. 563, 777 A.2d 413 (2001) (Attorney Perrone’s conviction of theft by deception, tampering with public records, securing execution of documents by deception, and unsworn falsification to authorities was not egregious enough to prohibit consideration of the reinstatement petition); In re Verlin, 557 Pa. 47, 731 A.2d 600 (1999) (Attorney Verlin’s conviction of criminal conspiracy, perjury, false swearing, and theft by deception was not egregious enough to prohibit consideration of the reinstatement petition).

Having concluded that petitioner’s misconduct is not so egregious as to preclude 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 has been without a license to practice law for approximately seven years. Evaluation of petitioner’s disbarment period suggests that it was a time of successful qualitative rehabilitation, sufficient to dissipate the taint of his misconduct. During that time he served his criminal sentence of home confinement and probation, which was terminated early. He completed his community service and paid his fines and costs in full. He made full restitution of the $20,000. Petitioner has worked continuously, utilizing his financial background in a variety of employment situations. Currently he is the director of bankruptcy and litigation services for Phillips and Cohen, a collection agency with offices in three states. He supervises at least 20 people in this capacity. Petitioner also teaches adult education courses for the University of Phoenix and Rosemont College.

Petitioner remained active in community organizations during his disbarment. He is active in the Lions Club and was re-elected to the board of Camden Optometric several times, with the full knowledge of the board that he was a felon and a disbarred lawyer. He was instrumental in helping to establish a bankruptcy clinic at Rutgers Law School.

Petitioner maintained and expanded his legal knowledge during his disbarment. He kept current on bankruptcy related material and read several legal journals, as well as attended Continuing Legal Education courses. If reinstated, petitioner hopes to work for a small law firm or a public interest law group. Petitioner feels his personal experience will make him a better lawyer.

Petitioner expressed sincere remorse for his misconduct. Three witnesses, in addition to petitioner’s statements, helped to establish that his misconduct was an aberration and that he would be an asset to the legal community if reinstated. These witnesses believe petitioner’s reputation to be very good in the community, and they have no reservations about petitioner’s resumption of the practice of law.

Considering all of the above facts, the board is persuaded that petitioner has engaged in a qualitative period of rehabilitation during his disbarment. Petitioner has met his burden of proving that he has the moral qualifications, learning in the law and competency to practice law, and his resumption of the practice of law will not have a detrimental impact on the integrity and standing of the bar, the administration of justice or the public interest.

The board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that petitioner, Robert H. Obringer, be reinstated to the practice of law.

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

Board Members Gentile, Pietragallo and Nordenberg did not participate in the January 19,2005 adjudication.

ORDER

And now, June 24, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated March 24, 2005, 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.


author:
O’CONNOR, Member,
     BROWN, Member,

text:
    Office of Disciplinary Counsel v. Lappe

      Disciplinary Board Docket no. 38 D.B. 2004.
    February 22, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

O’CONNOR, Member,

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

I. HISTORY OF PROCEEDINGS

On March 16, 2004, Office of Disciplinary Counsel filed a petition for discipline against respondent, Paula M. Lappe. The petition charged respondent with professional misconduct arising out of allegations of neglect of two client matters and noncompliance with certain requirements relative to her transfer to inactive status. Respondent did not file an answer to petition.

A disciplinary hearing was held on August 23, 2004, before Hearing Committee 4.02 comprised of Chair John James Mead, Esquire, and Members Frederick C. Leech, Esquire, and Gene R. Peck, Esquire. Respondent did not appear at the hearing.

Committee 4.02 filed a report on December 9, 2004, finding that respondent engaged in violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement, and recommending that respondent be suspended for a period of two years.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of January 19, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and 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, Paula M. Lappe, was born in 1959 and was admitted to practice law in the Commonwealth of Pennsylvania in 1984. Her office address is P.O. Box 27, Hibbs, Fayette County, Pennsylvania 15443. She is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior record of discipline.

(4) By order dated July 25,2002, effective August 24, 2002, the Supreme Court of Pennsylvania transferred respondent to inactive status for failure to comply with Rule 111(b), Pa.C.L.E.

(5) Respondent has not returned to active status.

Charge I — Mable Matter

(6) In January 2001, respondent was contacted by Steven Mable to represent him in an attempt to gain a new trial following his 1995 conviction in the York County Court of Common Pleas.

(7) By letter dated January 19, 2001, respondent informed Mr. Mable that she would come to the State Correctional Facility in Somerset and speak to him once she received a retainer, and she was firm about being paid the retainer prior to initiating representation.

(8) Respondent and Mr. Mable agreed to a fee of $9,500.

(9) Respondent had never before represented Mr. Mable.

(10) Respondent did not provide Mr. Mable with a written fee agreement regarding the representation.

(11) Respondent was paid the entire $9,500 over the next 10 months.

(12) In the spring of 2001, Mr. Mable forwarded to respondent all of his trial records and transcripts so respondent could review the case.

(13) Respondent never entered her appearance as counsel for Mr. Mable.

(14) Mr. Mable sent respondent at least three separate letters by certified mail during the time period of mid-May to mid-June 2002 requesting the status of his case and an opportunity to speak with respondent.

(15) The return receipt cards bear signatures accepting delivery and on two of the mailings a delivery date is shown as May 20, 2002 and June 5, 2002, respectively.

(16) Because respondent did not communicate with him, Mr. Mable wrote a letter dated June 3,2002, to Judge John C. Uhler of the York County Court of Common Pleas concerning his case.

(17) The court sent respondent a copy of Mr. Mable’s letter.

(18) Mr. Mable telephoned respondent on both July 10 and July 11, 2002, and spoke with respondent for a total of 10 minutes regarding his case.

(19) On August 1,2002, Office of Disciplinary Counsel sent respondent a letter notifying her that Mr. Mable had filed a complaint against her and that it was being dismissed. Office of Disciplinary Counsel requested a copy of the written fee agreement provided to Mr. Mable and suggested that either respondent communicate with Mr. Mable in light of the monies he had paid her or refund any unearned fee.

(20) Office of Disciplinary Counsel never received a copy of a written fee agreement.

(21) On August 1,2002, Mr. Mable sent respondent a letter in which he expressed dissatisfaction with respondent’s representation and requested either she take action or refund the $9,500 fee.

(22) Mr. Mable did not receive a reply to his letter.

(23) By letter of August 12,2002, Mr. Mabel requested that respondent cease all efforts at representing him and refund the monies previously paid and return all documents to Mr. Mable.

(24) Thereafter, respondent had a conversation with Mr. Mable’s mother in which respondent said she would visit Mr. Mable in prison on or about August 21,2002.

(25) Respondent never visited Mr. Mable.

(26) Respondent was transferred to inactive status effective August 24, 2002, by order of the Supreme Court of Pennsylvania, due to her failure to fulfill CLE requirements.

(27) Respondent was provided with a copy of the court order and informational handouts regarding her obligations pursuant to the Rules of Disciplinary Enforcement.

(28) Respondent attempted to pay her annual registration fee, but her registration form and check were returned as she had not complied with the CLE requirements.

(29) Although respondent was required to do so, she did not inform Mr. Mable of her transfer to inactive status and her inability to represent him.

(30) On October 15, 2002, Mr. Mable, by pro se filing, submitted a petition for post conviction relief to the York County Court of Common Pleas.

(31) Judge Uhler scheduled a hearing for December 20,2002, and had a copy of the scheduling order sent to respondent as she was listed in the filing as Mr. Mable’s counsel.

(32) Mr. Mable, by letter of November 11, 2002, sent by certified mail, asked respondent about the status of his case and again requested a refund of the $9,500.

(33) At the hearing on December 20,2002, Judge Uhler appointed Attorney Brian Perry of Harrisburg to represent Mr. Mable as the court was made aware of respondent’s inactive status.

(34) Respondent has not returned to Mr. Mable his transcripts or other documents, nor has she refunded the $9,500 she accepted for the representation.

(35) Office of Disciplinaiy Counsel sent a letter of inquiry to respondent on August 22, 2003, requesting that she provide certain financial records and documents.

(36) Respondent did not reply or provide the documents or records requested.

Charge II — Cunningham Matter

(37) In April 2002, Dorothy Cunningham contacted respondent for representation of her daughter, Joyce, in a custody modification hearing to be held in the Fayette County Court of Common Pleas.

(38) On April 22,2002, respondent met with Dorothy and Joyce Cunningham and agreed to represent Joyce.

(39) Respondent requested $1,500, which Dorothy Cunningham paid on behalf of Joyce Cunningham.

(40) Respondent did not provide a written fee agreement to her client regarding the basis or rate of her fee.

(41) At the conclusion of the meeting on April 22,2002, respondent informed her client that the custody modification papers would be ready for signature the following week, and that she would contact Ms. Cunningham to arrange a convenient time to sign them.

(42) Respondent did not communicate with her client until June 2002, at which time respondent told her client that she would not start any custody modification proceeding until after an ongoing Children and Youth Service investigation had concluded.

(43) In mid-July 2002, Ms. Cunningham telephoned respondent’s office to apprise her that the CYS matter had been concluded. Respondent and her client agreed that the custody modification would be initiated by mid-August and no later than September 2002.

(44) Following the July 2002 conversation, respondent had no further communication with her client.

(45) Following respondent’s transfer to inactive status, she failed to inform Ms. Cunningham that she was not permitted to represent her.

(46) Ms. Cunningham sent a certified letter dated September 4, 2002, to respondent. Ms. Cunningham reminded respondent of the custody modification and that if respondent was unable to represent her, she wanted an itemized billing of respondent’s expenses and the return of the remaining balance of the $1,500 previously paid.

(47) The certified mail was returned and marked as unclaimed.

(48) Ms. Cunningham sent a letter by regular mail dated September 17, 2002, regarding the status of her case.

(49) This letter was not returned as undeliverable.

(50) Shortly thereafter, Ms. Cunningham contacted the Pennsylvania Bar Association and learned that, as of August 2002, respondent was on inactive status.

(51) Respondent has not returned any of the unearned fee of $1,500 to Ms. Cunningham and her mother.

(52) On August 14,2003, respondent was sent a letter of inquiry from Office of Disciplinary Counsel, requesting that respondent provide certain financial records and documents.

(53) Respondent did not reply or provide the documents and records requested.

(54) Respondent was personally served with the petition for discipline and had notice of the pre-hearing conference and disciplinary hearing.

(55) Respondent did not appear or participate in the pre-hearing conference or the disciplinary hearing.

III. CONCLUSIONS OF LAW

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

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

(2) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

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

(4) R.P.C. 1.5(b) — When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.

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

(6) R.P.C. 8.1(a) — A lawyer is subject to discipline if the lawyer has failed to disclose a material fact requested in connection with any disciplinary matter.

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

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

(9) Pa.R.D.E. 217(a) — 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 transfer to inactive status and the consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the transfer to inactive status and shall advise said clients to seek legal advice elsewhere.

(10) Pa.R.D.E. 217(e) — Within 10 days after the effective date of the transfer to inactive status order, the formerly admitted attorney shall file with the board a verified statement showing (1) that the provisions of the order and these rules have been fully complied with; and (2) all other state, federal and administrative jurisdictions to which said such person is admitted to practice. Such statements shall also set forth the residence or other address of the formerly admitted attorney where communications to such person may thereafter be directed.

IV. DISCUSSION

Petitioner has established by a preponderance of the evidence that is clear and convincing that respondent engaged in professional misconduct. Petitioner’s exhibit 1 is the petition for discipline filed against respondent at no. 38 D.B. 2004. Respondent was personally served with the petition on April 9, 2004. She did not file a responsive pleading. Any factual allegation not timely answered is deemed admitted. Rule 208(b)(3), Pa.R.D.E.

Respondent engaged in neglect of her clients’ cases, failed to keep her clients informed about their cases, failed to provide her clients with a written document evidencing the basis and rate of her fee, and failed to return client papers and unearned fees to the clients when the representation was terminated. Respondent was paid $9,500 in the Mable matter and $ 1,500 in the Cunningham matter, and took no action on behalf of either client. In addition, respondent was placed on inactive status for failing to fulfill her Continuing Legal Education requirements, and did not notify her clients of her inability to represent them.

Respondent essentially took her clients’ money and abandoned her practice. Throughout the course of Office of Disciplinaiy Counsel’s investigation and the commencement of formal proceedings, respondent was presented with opportunities to act professionally and responsibly, and to explain her actions, but failed to do so. Her lack of participation culminated in her failure to appear at the disciplinary hearing, thus relinquishing yet another chance to defend herself. The board is persuaded, based on the facts of record, that a suspension is appropriate and is necessary so that respondent is required to petition for reinstatement if she wishes to practice in the future. In a similar case, an attorney engaged in the general neglect of three client matters and failed to refund unearned fees. In re Anonymous No. 93 D.B. 1998, 535 disciplinary docket no. 3 (Pa. July 20, 1999). This attorney had a history of discipline. The court suspended him for one year and one day. In the matter of In re Anonymous No. 73 D.B. 1995, no. 286 disciplinary docket no. 3 (Pa. Dec. 30, 1996), the attorney was suspended for one year and one day following his general neglect of client matters, failure to refund unearned client fees and practice of law while on inactive status. This attorney had no history of discipline.

While the instant matter is similar in nature to the above cited cases, respondent’s failure to appear for the disciplinary hearing or participate in any meaningful way to defend her law license aggravates the circumstances. Respondent has also failed to account for and return the unearned portion of the fees she received, return the documents that she was given by her clients and failed to provide any of the documents demanded by the Office of Disciplinary Counsel. Additionally, there is no documentation that the respondent did any of the work she was retained for, or any reasons given for her lack of attention to these matters and, as such, the majority of the Disciplinary Board agrees with the Hearing Committee that this is justification for a suspension of two years.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Paula M. Lappe, be suspended from the practice of law for a period of two years.

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

Board Member Brown dissented and would recommend a suspension of one year and one day.

DISSENTING OPINION

To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

BROWN, Member,

February 22, 2005 — A majority of the board has recommended to the Supreme Court that respondent be suspended for a period of two years. I recommended that respondent be suspended for one year and one day and write this dissent to explain the reasons for my recommendation.

I agree that respondent must be suspended for a significant length of time so that she must file a petition of reinstatement and subject herself to reinstatement hearing if she wishes to practice in the future.

In accordance with past cases decided by this court and the Disciplinary Board (see In re Anonymous No. 93 D.B. 1998, 535 disciplinary docket no. 3 (Pa. July 20, 1999), and In re Anonymous No. 73 D.B. 1995, no. 286 disciplinary docket no. 3 (Pa. Dec. 30, 1996), both cited on page 126 of the majority opinion, I would impose a suspension of one year and one day. While I agree respondent’s failure to participate in the disciplinary process is an aggravating factor, I do not believe it warrants the addition of another year suspension. By imposing a suspension of one year and one day, thus requiring a reinstatement hearing before respondent can again practice, the public interest is served, the disciplinary system is satisfied, and respondent can explain during her reinstatement hearing the reasons for her failure to actively participate in the disciplinary process.

For these reasons, I would recommend a suspension of one year and one day.

ORDER

And now, May 11,2005, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania and dissenting opinion dated February 22,2005, it is hereby ordered that Paula M. Lappe be and she is suspended from the bar of this Commonwealth for a period of two years, and she shall comply with all the provisions of Rule 217, Pa.R.D.E.

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


author: GOLDBERG, J.,

text:
    Commonwealth v. Mullins

      Robin M. Campbell, assistant district attorney, for appellee Commonwealth.

      Christa S. Dunleavy, senior deputy public defender, for appellant.
    October 6, 2005
   GOLDBERG, J.,

On November 12, 2003, Thomas Mullins (appellant) pled guilty to various crimes stemming from his ongoing molestation of his stepdaughter, who at the time of the plea hearing was 12 years old.

On appeal, appellant raises several issues pertaining to his designation as a sexually violent predator pursuant to 42 Pa.C.S. §§9791-9799.7, commonly referred to as Megan’s Law. He also challenges the constitutionality of that statute. As appellant’s constitutional challenge to Megan’s Law has been addressed by a three-judge panel of this court, we rely upon and attach that opinion, [not published herein]

We address appellant’s remaining issues below and file this opinion pursuant to Pa.R.A.P. § 1925(a).

PROCEDURAL AND FACTUAL BACKGROUND

On August 12, 2003, appellant was charged with involuntary deviate sexual intercourse, aggravated sexual assault, indecent assault, endangering the welfare of children, and corruption of the morals of a minor. He originally entered a plea of not guilty.

On November 10 and 12,2003, hearings were held on appellant’s pretrial motions which included his request that the incriminating statements he provided to a Bucks County Children and Youth investigator be suppressed.

After these motions were disposed of, appellant waived his right to a jury trial and a bench trial commenced. The Commonwealth’s first witness was the victim, a visibly shaken and distraught 12-year-old. She explained that appellant had moved in with her and her two siblings after her mother and appellant met in Florida. When her mother and appellant married, they all moved to Bucks County where they lived together for two years. Although the victim provided this background information, at least initially, she was reluctant to testify further. Indeed, she stated that she would refuse to testify against her father and that in any event, she did not recall what had happened. (N.T. 11/12/03, pp. 79-84, 89-96.)

As the assistant district attorney attempted to question the victim about the information she had provided a Children and Youth investigator, the victim became more distraught and ultimately requested to speak with her court-appointed attorney. After a brief recess, the victim testified that appellant had “touched her in inappropriate places.” Only after this occurred did appellant announce his intention to change his plea to guilty. (N.T. 11/12/03, pp. 98-102.)

The facts adduced at the guilty plea hearing were as follows:

• From the spring of2002, appellant sexually assaulted the victim approximately 20 times;

• These assaults included forcing the victim to perform oral sex on appellant where both appellant and the victim would have their clothes off. At the conclusion of these acts, appellant would ejaculate into a towel;

• Prior to that time, and while her family lived in Florida, appellant first assaulted the victim when she was between the first and second grade;

• On at least one occasion appellant rubbed and attempted to place his finger into the victim’s vagina;

• On other occasions appellant forced the victim to view pornographic movies with him while he masturbated;

• Appellant would typically molest the victim when her mother was out of the house on business;

• Prior to assaulting the victim, appellant would advise her that he “had plans” for them, indicating that sexual contact would occur;

• In attempting to explain the sexual contact between them, appellant told the victim “every dad and daughter do it... it makes us seem like more of a family”; and

• In the most recent assault, sometime in early June of 2003, appellant asked the victim to perform oral sex on him. When she refused, he became angry and told her that she “shouldn’t lead people on and play with their heads when you are in a relationship.” (N.T. 11/12/03, pp. 115-20.)

After the above referenced facts were read into the record, appellant was specifically asked whether such facts were accurate and whether he was guilly of committing such acts. Appellant answered both questions affirmatively. (N.T. 11/12/03, pp. 121-22.)

On May 7, 2004, we held a hearing on the Commonwealth’s motion requesting that appellant be classified as a sexually violent predator (SVP). In support of this request, the Commonwealth called Dr. John M. Shanken-Kaye, a psychologist specializing in the assessment and treatment of adult sex offenders and in the diagnosis of general psychopathology and personality disorders. Shanken-Kaye opined that appellant did meet the criteria to be classified as an SVP. (N.T. 5/07/04, pp. 32, 54.)

In reaching this opinion, Dr. Shanken-Kaye first concluded that appellant suffered from the mental abnormality of pedophilia. This diagnosis is warranted when a person exhibits a deviate sexual arousal to young children and either acts on those urges or where those urges cause difficulty in interpersonal relationships. ShankenKaye explained that this diagnosis was supported by appellant’s prolonged sexual relationship with his stepdaughter, who was under 13 years old. Shanken-Kaye noted that appellant’s conduct and classification as a pedophile also satisfied the criteria set forth in the Diagnostic & Statistical Manual of the American Psychiatric Association for Pedophilia. (N.T. 5/07/04, pp. 32-36.)

Dr. Shanken-Kaye also concluded that the relationship between appellant and the victim was predatory as defined under Megan’s Law. Shanken-Kaye reached this conclusion based on the fact that appellant’s acts were directed at a person (here, his stepdaughter) with whom a relationship was established or promoted for the primary purpose of victimization. Appellant’s predatory conduct was supported by several factors, including:

• The abuse took place when the victim’s mother would travel, leaving the victim in appellant’s care;

• The molestation of the victim started at a very young age and continued for numerous years;

• Prior to molesting the victim, appellant would announce his intention to do so, telling her he had plans for them that evening. Appellant also furthered the predatory relationship through preferential treatment of the victim; and

• In the last incident wherein appellant attempted to assault the victim and she resisted, the victim was concerned that appellant would be angry and she was afraid of his anger. (N.T. 5/07/04, pp. 37-47.)

In his report, which was received into evidence, (exhibit C-2), Shanken-Kaye also reviewed the assessment factors set out in section 9795.4(b) and opined that, in addition to appellant’s mental abnormality and predatory conduct, several of these factors weighed in favor of designating appellant as an SVP. Specifically, Shanken-Kaye considered the young age of the victim (section 9795.4(b)(l)(v)); the lack of participation by appellant in offender specific therapy (section 9795.4(b)(2)(iii)); the fact that appellant has a significant mental abnormality as evidenced by his “repeatedly orally raping and otherwise sexually molesting his very young stepdaughter over a period of at least five years” (section 9795.4(b)(3)(iii)); and the nature of the sexual contact with the victim which in this case was predatory, ongoing, and manipulative (section 9795.4(b)(l)(iii)).

Appellant did not offer any evidence to refute Dr. Shanken-Kaye’s determination that he was an SVP. Rather, he presented the testimony of Dr. Allan M. Tepper, who opined that Dr. Shanken-Kaye had reviewed insufficient information to form an opinion that appellant was an SVP. (N.T. 5/07/04, pp. 181-82.)

At the conclusion of the Megan’s Law hearing, we found that the Commonwealth had met its burden by clear and convincing evidence that appellant be classified an SVP. Appellant was subsequently sentenced to six to 12 years incarceration.

On May 20, 2004, appellant filed post sentence motions challenging the constitutionality of Megan’s Law II. A hearing was held on this issue on September 23, 2004, and continued to November 4, 2004. At the conclusion of this hearing, a three-judge panel of this court considered the entire record in this case and rejected appellant’s constitutional challenge to Megan’s Law in an opinion issued February 14, 2005 (attached), [not published herein]

On April 7,2005, appellant filed a timely concise statement of matters complained of on appeal. On April 15, 2005, after we ordered a more specific section 1925 statement, appellant filed a supplemental concise statement of matters complained of on appeal. We summarize the issues raised on appeal by appellant as follows:

• In designating appellant an SVP, did the court improperly rely on evidence not of record and outside of the time period charged in the criminal information, that is, that the assaults on the victim began when she was 7 years of age? (Concise statement, ¶1. a.; supplemental concise statement, ¶3. a.-f.);

• Did the Commonwealth establish, by clear and convincing evidence, that appellant’s actions were predatory? (Concise statement, ¶1. b.);

• Did the Commonwealth establish by clear and convincing evidence that appellant suffers from a mental abnormality — pedophilia? (Concise statement, ¶1. c.; supplemental concise statement, ¶3. i.-j.);

• Did the trial court fail to consider certain statutory factors under Megan’s Law? (Concise statement, ¶1. d.); and

• In designating appellant as an SVP, did the trial court improperly consider the fact that appellant’s acts involved significant planning and premeditation? (Supplemental concise statement, ¶3. g.-h.)

DISCUSSION

Appellant first alleges that in classifying him as an S VP, we relied upon evidence which was not of record. Specifically, appellant claims that we erred in relying on the fact that the sexual abuse started when the victim was approximately 7 years of age. (Concise statement, ¶1. a.; supplemental concise statement, ¶3. a.-f.) This claim is directly refuted by the record.

As set forth above, at the guilty plea hearing the prosecutor proffered certain facts in support of the charges as follows:

“Miss Gardner [the Children and Youth investigator] interviewed [the victim] in this case, the 11-year-old female, who currently lived with her mother, sister, brother and the defendant----She stated that from the spring of 2002, initially, until the present, the defendant had sexually assaulted her at that address approximately 20 times, during that last year.... She stated that prior to moving to Bucks County, she lived in Tampa, Florida, and that the defendant had first sexually assaulted her when she was between first and second grade in Tampa, Florida.” (N.T. 11/12/03, pp. 116-17.) (emphasis added) At the conclusion of the recitation of the facts, we asked appellant, who was under oath, if he agreed with their accuracy and he clearly answered affirmatively. (N.T. 11/12/ 03, pp. 121-22.)

On the day of the plea hearing the victim was 12 years old and in seventh grade. (N.T. 11/12/03, p. 89.) As set forth above, at the plea hearing, appellant acknowledged and agreed that he first assaulted the victim when she was in between first and second grade, approximately five years prior to the plea hearing. Thus, the victim would have been approximately 7 years of age when the assaults first occurred. Additionally, Dr. Shanken-Kaye’s report was also made part of ’the Megan’s Law hearing record, by agreement of appellant’s counsel. (N.T. 5/07/ 04, pp. 30-31.) This report also reiterates that appellant “sexually assaulted her in Florida, beginning in the first or second grade.” (Exhibit C-2.) Thus, there was ample evidence in the record to support the fact that the assaults began when the victim was 7 years of age.

While we recognize that there are other statements in the record which may reflect that the victim was slightly older, this discrepancy would hardly change the fact that appellant systematically and repeatedly molested the victim when she was very young — whatever her precise age. Nonetheless, because there is direct support in the record that the assaults began when the victim was 7 years of age, no error occurred.

In a related issue, appellant also alleges error in our considering instances of abuse that took place before the dates charged in the criminal information to which he “did not plead guilty.” (Supplemental concise statement, ¶3. e.-f.) This claim is also meritless.

We first reiterate that appellant acknowledged, under oath at the plea hearing, that the molestation began when the victim was 7 years old. Thus, this is not the case where unproven allegations were relied upon by the Commonwealth’s expert and/or the court in determining that appellant should be classified as an SVP. Rather, both Dr. Shanken-Kaye and this court properly relied upon occurrences which appellant admitted to under oath.

Nor is appellant’s claim analogous to a sentencing court improperly considering uncharged conduct. In those cases, where the sentencing court relies on “impermissible considerations,” such reliance is improper if the information is “unreliable.” See e.g., Commonwealth v. Karash, 306 Pa. Super. 229, 452 A.2d 528 (1982); see also, Commonwealth v. Vernille, 275 Pa. Super. 263, 275, 418 A.2d 713, 719 (1980) (not improper for sentencing court to consider involvement in other unlawful activity where defendant admitted to most of the facts). Here, in classifying appellant as an SVP, our partial reliance on facts outside of the dates in the charging document was perfectly proper as appellant admitted to those acts, and such evidence was, therefore, of record and entirely reliable.

Lastly, we note that the assessment section of Megan’s Law requires that we consider the facts of the offense, the nature of the sexual contact with the victim, and the age of the victim. (Section 9795.4(b)(1).) Thus, our consideration of the duration of the assaults was mandated by statute.

Appellant next alleges that the Commonwealth failed to prove by clear and convincing evidence that appellant meets the definition of predatory. (Concise statement, ¶1- b.)

Pursuant to section 9792, predatory is defined as “an act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.” Here, Dr. ShankenKaye properly considered numerous factors which reflect that appellant promoted his relationship with his stepdaughter for the primary purpose of victimization. These include appellant’s long-term pattern of abuse initiated when the victim was very young, his preferential treatment of the victim, his planning of the sexual abuse when the victim’s mother was away on business and manipulation of the young victim. (N.T. 5/07/04, pp. 37-41.) These facts are more than sufficient evidence to support Dr. Shanken-Kaye’s opinion that appellant’s conduct was predatory.

Appellant next alleges that the Commonwealth failed to establish, by clear and convincing evidence that appellant suffers from the mental abnormality of pedophilia. (Concise statement, ¶1. c.; supplemental concise statement, ¶3. i.-j.) As set forth above, pedophilia is defined as a deviate sexual arousal to young children where that arousal is acted upon. Here, appellant molested his young stepdaughter starting when she was approximately 7 years old. This abuse continued for at least five years. This is overwhelming evidence that appellant has a significant mental abnormality — pedophilia. For these reasons, this claim is also meritless.

Appellant next alleges that we failed to consider certain statutory factors under Megan’s Law. (Concise statement, ¶1. d.) This claim is also refuted by the record. In finding that the Commonwealth had proven, by clear and convincing evidence, that appellant should be classified as an SVP, we stated:

“The court credits the testimony of Dr. Shanken-Kaye. We find him to be extremely credible. We find his qualifications to be very impressive. I’ll come back to Dr. Tepper in a moment. But it seems abundantly clear to this court that when it comes to Dr. Shanken-Kaye’s qualifications in this specific area, that is, in the assessment of whether someone is a sexually violent predator, his experience is more focused, more precise on the issue that is before this court than Dr. Tepper’s, who doesn’t seem to have as much specific experience on the issue that’s before this court.

“This court credits and agrees with the factors as articulated by Dr. Shanken-Kaye. Have all of the factors been met under the assessment listings under 9795.4? No. Do all of the factors have to be met? No. And I think the defense would even agree with that.

“It seems to this court that what this court is to look at is not only have some of the factors been met, but the strength of the Commonwealth’s evidence on those factors that have been met. And the first factor that this court finds has been met by substantial evidence, by overwhelming evidence, is that this defendant has an extreme and significant mental abnormality, that is, pedophilia.

“To recite the facts in this case, which involved an extremely young girl, a child, wherein she was induced to perform oral sex on him. He acknowledged at a later point he performed oral sex on her. She was forced to perform manual stimulation on his penis with her hand. In some of these acts she was made to undress. On one occasion this defendant rubbed her vagina and tried to place his finger in her vagina. And on other occasions while this was occurring he made this child, and the record will bear out the exact date, but this court remembers that these offenses started when this child was 7 years old, a startlingly young age.

“Given those facts, in and of itself, it is abundantly clear to this court that Mr. Mullins suffers from extreme mental abnormality. That, coupled with the length of time that this abuse went on and the amount of times that it went on, this court finds that the Commonwealth has presented significant evidence regarding the mental abnormality of this defendant.

“The court finds and also credits Dr. Shanken-Kaye’s testimony regarding the fact that the Commonwealth has met its burden as it relates to the factor pertaining to the nature of the relationship in this case between the defendant and his victim, which the court also finds is a very significant factor in reaching its conclusion. This relationship, as I stated, started when this child was 7 years old and continued up until the time that she was 12. That’s almost half of her life. There was manipulation present, as there would have to be.

“The court finds that there was preferential treatment which was offered by this defendant to this victim in order to continue to induce this twisted relationship. There was significant time and planning and premeditation involved in order to continue this relationship.” (N.T. 5/07/04, pp. 217-19.)

The above statement, which summarizes the basis for our designation of appellant as an SVP, clearly refers to several statutory factors, including: section 9795.4(b)(1)(iii) — The nature of the sexual contact with the victim; section 9795.4(b)(1)(iv) — Relationship of the individual to the victim; section 9795.4(b)(1)(v) — Age of the victim; and section 9795.4(b)(3)(iii) — Characteristics of the individual including mental abnormality.

Additionally, our acknowledgement that not all of the assessment factors under section 9795.4 were met clearly reflects that each was considered. Moreover, precedent on Megan’s Law does not require that all of the assessment factors be met in order to classify a defendant as an SVP. See e.g., Commonwealth v. Snyder, 870 A.2d 336 (Pa. Super. 2005); Commonwealth v. Moody, 843 A.2d 402 (Pa. Super. 2004). The assessment factors set forth under section 9795.4 are not weighted equally. The mental abnormality factor (section 9795.4(b)(3)(iii)) should be weighed more heavily than other factors. Commonwealth v. Bey, 841 A.2d 562, 566 (Pa. Super. 2004). As we clearly noted numerous assessment factors, including appellant’s mental abnormality of pedophilia, this claim also lacks merit.

Lastly, appellant claims that we erred in considering that his acts involved planning and premeditation. The statute, by its very terms, mandates that we consider this issue. Section 9795.4(b)(1) instructs that the facts of the offense be examined. The unrefuted record establishes that appellant would advise the victim, in advance, when her mother was out of town that he “had plans” for them in the evening. These assaults occurred over a period of at least five years. Dr. Shanken-Kaye properly considered this evidence in opining that this reflected predatory behavior as it was indicative of appellant’s promoting a relationship for victimization. (N.T. 5/07/04, pp. 39-40.) As such, we properly considered this evidence.

CONCLUSION

For the foregoing reasons, the orders designating appellant an SVP and rejecting his constitutional challenge to Megan’s Law should be affirmed.

      . During the hearing on this issue, the Children and Youth investigator testified that on June 4, 2003, after receiving information from the victim that appellant had molested her, she traveled to appellant’s home where appellant almost immediately admitted that he had fondled and engaged in oral sex with the victim. (N.T. 11/10/03, pp. 16-17.)

      . Dr. Shanken-Kaye’s experience and background includes: a doctorate in psychology; an extensive internship at a treatment center for juvenile sex offenders; hundreds of continuing education hours in the area of assessment and treatment of adult sex offenders; and serving as an instructor for the Pennsylvania Sexual Offenders Assessment Board, of which he is a member. (N.T. 5/7/04, pp. 16-19.)

      . Since being appointed to the Sexual Offenders Assessment Board, Dr. Shanken-Kaye has completed 32 Megan’s Law assessments. In only six of those 32 assessments has Shanken-Kaye opined that an SVP classification was warranted. (N.T. 5/07/04, p. 19.)