author: BROWN,

text:
    Office of Disciplinary Counsel v. Lewis

      Disciplinary docket no. 117 D.B. 2005.
    January 26, 2007
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

BROWN,

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 August 1, 2005, Office of Disciplinary Counsel filed a petition for discipline against F. Lee Lewis, respondent. The petition charged respondent with professional misconduct in six separate client matters during a two-year time frame. Respondent did not file an answer to petition.

On December 5, 2005, a joint petition for discipline on consent was filed by the parties and assigned to a three-member Disciplinary Board panel. The board panel denied the joint petition for discipline on consent and the petition for discipline was referred to a Hearing Committee.

A disciplinary hearing was held on March 22, 2006 before a District I Hearing Committee comprised of Chair Marc P. Weingarten, Esquire, and Members Howell K. Rosenberg, Esquire, and Daniel J. Ryan Jr., Esquire. Respondent was represented by Samuel D. Miller, Esquire.

Following the submission of briefs by the parties, the Hearing Committee filed a report on August 11, 2006, finding that respondent engaged in ethical misconduct and recommending that she be suspended for one year and one day.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on September 20, 2006.

II. FINDINGS OF FACT

The board makes the following findings of fact:

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

(2) Respondent is F. Lee Lewis. She was born in 1945 and was admitted to practice law in the Commonwealth in 1987. Her attorney registration mailing address is 5744 Albans Way, Lithonia GA 30058. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent has a prior history of discipline. She received an informal admonition in 1998 and a private reprimand in 2005. In connection with the reprimand, respondent was ordered to return a retainer paid by a client. She failed to do so for two years. The board also ordered respondent placed on probation with a practice monitor for one year. The probation never commenced due to respondent’s inability to obtain an attorney who would agree to monitor her practice.

Charge / — Ruffin Matter

(4) In October of 2002, Marylou Ruffin retained respondent to represent her grandson, Markee J. Ruffin, in the preparation and filing in the United States District Court for the Eastern District of Pennsylvania, a petition for a writ of habeas corpus.

(5) Respondent told Ms. Ruffin that her fee for the representation would be $5,000.

(6) Respondent had not previously represented Ms. Ruffin or Mr. Ruffin.

(7) Respondent did not communicate the basis or rate of her fee, in writing, before or within a reasonable time after commencing the representation.

(8).Over the next several months, Ms. Ruffin satisfied respondent’s requested fee of $5,000.

(9) At the outset of the representation or shortly thereafter upon diligent inquiry, respondent failed to advise her client that he was time-barred under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) from filing a petition, and to refund the $5,000 she received from Ms. Ruffin.

(10) Under the AEDPA, a petition had to be filed on or before October 1, 2002.

(11) By letter dated May 1, 2003, addressed to Mr. Ruffin, respondent, inter alia:

(a) advised Mr. Ruffin that she had reviewed the trial documents and the transcripts and that she was in the “research phase”;

(b) requested that he write back with any new evidence;

(c) promised to do everything she could to secure his release through the “appellate procedures.”

(12) Mr. Ruffin received respondent’s letter and, as respondent requested, wrote back to her with a response.

(13) By letter dated June 24, 2003, addressed to Mr. Ruffin, respondent acknowledged receipt of his letter and requested that he respond to her additional requests for information.

(14) Mr. Ruffin received respondent’s letter and wrote back to her with a response.

(15) On August 22,2003, respondent filed the petition in the Eastern District.

(16) On November 25,2003, the Attorney General of Pennsylvania and the Philadelphia District Attorney’s Office filed a response to the petition claiming that it should be dismissed as it was time-barred.

(17) OnNovember 26,2003, United States Magistrate Judge Peter B. Scuderi filed a report and recommendation, in which he recommended the dismissal of the petition because it was time-barred.

(18) On February 9,2004, respondent filed objections to the report.

(19) By order dated February 12,2004, the Honorable Berle Schiller approved and adopted the report and dismissed the petition.

(20) Respondent received a copy of the February 12, 2004 order.

(21) Respondent failed to advise Mr. Ruffin that the petition was dismissed and of his legal options following the dismissal.

(22) Mr. Ruffin was advised by the court of the dismissal of the petition.

(23) By undated handwritten letter, mailed to Mr. Ruffin on March 17, 2004, respondent, inter alia:

(a) Apologized for not promptly responding to Mr. Ruffin’s inquiries;

(b) Informed Mr. Ruffin that she had told Ms. Ruffin that she needed another attorney to assist in the appeal;

(c) Enclosed a print advertisement for an attorney named Joseph R. Viola, whom respondent claimed to have retained to help her;

(d) Stated that she would stay in contact with Mr. Ruffin;

(e) Advised Mr. Ruffin that she would help with Mr. Viola’s legal fees by paying Mr. Viola $2,000, that Mr. Viola’s total fee was $4,000 and that he required an immediate payment of $2,000 to begin work; and

(f) Informed Mr. Ruffin that she would discuss Mr. Viola’s retention with Ms. Ruffin.

(24) Respondent failed to have any further contact with either Mr. Ruffin or Ms. Ruffin regarding the legal matter.

(25) By letter dated March 24,2004, sent to respondent by regular mail, Mr. Ruffin requested that respondent provide him with a copy of all of the documents in his legal file pertaining to the petition.

(26) Respondent received this letter but did not comply with Mr. Ruffin’s request.

(27) Sometime thereafter, Mr. Ruffin had a conversation with respondent in which respondent promised to refund a portion of the $5,000 fee.

(28) Respondent failed to refund any portion of the $5,000 fee.

(29) Sometime after respondent’s conversation with Mr. Ruffin regarding the refund of the fee, Ms. Ruffin went to respondent’s law office located at 1800 J.F.K. Boulevard, Suite 300, Philadelphia, and was informed that respondent was no longer in Pennsylvania, having relocated to Florida.

Charge II — Brinson Matter

(30) Sometime in December 2003 or January 2004, David A. Brinson received a solicitation letter from respondent in which she offered her services for bankruptcy, among other things.

(31) After receiving respondent’s solicitation letter, Mr. Brinson contacted respondent by telephone and scheduled a meeting at respondent’s office in January 2004.

(32) Mr. Brinson appeared at respondent’s office for the meeting at the scheduled date and time.

(a) Respondent was not in the office so Mr. Brinson met with an employee named Nadirah Coleman, who identified herself as respondent’s paralegal.

(b) Ms. Coleman informed Mr. Brinson that respondent’s fee for the representation was $694.

(c) Mr. Brinson paid Ms. Coleman $400, for which he received a receipt.

(33) Mr. Brinson paid the additional fee owed of $294 and received a receipt from Ms. Coleman dated January 10, 2004, which had a “0” marked in the box entitled “Balance Due.”

(34) On January 14,2004, respondent filed a Chapter 13 bankruptcy petition on behalf of Mr. Brinson with the United States Bankruptcy Court for the Eastern District of Pennsylvania.

(35) The documents filed with the court were incomplete.

(36) By order dated January 15, 2004, the bankruptcy court directed that the following documents must be filed by January 29, 2004, unless a timely request for an extension was made, or the case might be dismissed: Attorney disclosure statement; Chapter 13 plan; Matrix; Schedule A-J; SSN (Form B21/Tax ID); Statement of financial affairs; and Summary of schedules.

(37) Respondent received the order.

(38) Respondent failed to file the required documents by January 29, 2004.

(39) Respondent failed to make a timely request for an extension of time to file the required documents.

(40) Sometime after respondent filed the bankruptcy petition, Mr. Brinson contacted respondent to find out the amount of his monthly plan payment.

(41) Respondent told Mr. Brinson that she did not yet know the amount and that he would receive a letter from the assigned U.S. Trustee and a court date.

(42) Mr. Brinson contacted respondent a week later to inform her of his name change; Mr. Brinson had his father, Larry Brinson, drop off paperwork at respondent’s office related to the name change.

(43) Shortly thereafter, Mr. Brinson’s father contacted respondent by telephone regarding the bankruptcy case and the name change.

(44) Respondent told Mr. Brinson’s father that she would address the name change and mentioned that the bankruptcy court wanted the required documents submitted on diskette.

(45) By order dated February 4, 2004, the court dismissed Mr. Brinson’s bankruptcy case because of respondent’s failure to timely file the required documents.

(46) On February 5, 2004, respondent filed some but not all of the required documents.

(47) Respondent failed to advise her client that his bankruptcy case had been dismissed due to her failure to timely file certain documents.

(48) The bankruptcy court sent a notice to Mr. Brinson advising him of the dismissal of his case.

(49) Mr. Brinson’s father contacted respondent on behalf of his son on February 11,2004. Respondent told the father that she did not file the correct documents and that she did not submit the information required on a computer diskette.

(50) Respondent informed the father that she would re-file the petition.

(51) Respondent failed to re-file a Chapter 13 bankruptcy petition on behalf of Mr. Brinson.

(52) From February 12,2004, through March 12,2004, Mr. Brinson left messages on respondent’s answering machine. Fie advised her of the termination of her representation, and requested a copy of his legal file and a refund of the fee he paid.

(53) Respondent told Mr. Brinson that she would contact him on March 22, 2004.

(54) Respondent failed to contact Mr. Brinson, provide him with a copy of his file or refund the unearned portion of the fee.

(55) By letter dated March 29,2004, sent to respondent by regular mail and facsimile transmission, Mr. Brinson, inter alia;

(a) Advised respondent of his unsuccessful attempts to contact her by telephone;

(b) Requested copies of all documents related to his case;

(c) Expressed his belief that respondent was not providing him with the services he bargained for;

(d) Stated that he had not heard from respondent since he had learned of the dismissal of his bankruptcy case;

(e) Recounted his recent unsuccessful efforts to contact respondent by telephone on March 27, 28, and 29, and respondent’s failure to contact him on March 22, 2004, as she had promised; and

(f) Requested that respondent refund the money he paid her if she was unable to provide the services he bargained for.

(56) Respondent received the letter and called Mr. Brinson in response.

(57) Respondent told Mr. Brinson that she was out of town but that she was still working on his case.

(58) Mr. Brinson requested a refund of the fee so that he could retain another attorney. Respondent refused Mr. Brinson’s requests.

(59) Sometime in late March 2004, respondent again called Mr. Brinson and told him that she was in the process of re-filing a bankruptcy petition on his behalf but was not sure if she should file now or wait for a date closer to the sheriff’s sale.

(60) Mr. Brinson told respondent that she should file immediately and reiterated his request for a refund and the return of his paperwork.

(61) From April 1, 2004, through April 17, 2004, Mr. Brinson left messages on respondent’s answering machine requesting that she contact him regarding his legal matter.

(62) Respondent failed to return Mr. Brinson’s messages.

• (63) On April 21,2004, Ms. Coleman called Mr. Brinson and told him that he could retrieve his file but that she would contact him about the refund.

(64) Mr. Brinson attempted to pick up his file at respondent’s office but was unable to do so as no one was at the office.

(65) Respondent failed to mail to Mr. Brinson a copy of his file.

(66) Respondent failed to contact Mr. Brinson regarding his refund.

(67) Respondent failed to refund the unearned portion of the advance payment of her fee following the termination of respondent’s representation of Mr. Brinson.

Charge III — Fitchett Matter

(68) In or about June 2003, Gertrude Fitchett was in default of her residential mortgage.

(69) In or about June 2003 respondent mailed an undated solicitation letter to Ms. Fitchett.

(70) Ms. Fitchett telephoned respondent in response to the solicitation letter and respondent returned her call and arranged a meeting on June 26, 2003, at 5 p.m., to meet with an unidentified individual in respondent’s office.

(71) On June 26, 2003, Ms. Fitchett went to respondent’s office and met with respondent’s brother-in-law, a non-lawyer.

(a) The brother-in-law explained to Ms. Fitchett the different types of bankruptcy chapters;

(b) The brother-in-law informed Ms. Fitchett she would need to pay $400 in cash that day; she complied with the request and received a receipt, which indicated that the total amount owed was $1,185.

(c) The brother-in-law had Ms. Fitchett sign a document entitled “Bankruptcy application,” which stated that respondent’s fee for representing Ms. Fitchett was $1,185, inclusive of costs.

(d) Ms. Fitchett provided the brother-in-law with copies of letters she received from three general unsecured creditors.

(e) Either at this meeting or another meeting in July 2003, the brother-in-law solicited financial information from Ms. Fitchett, including her wages; Ms. Fitchett provided the brother-in-law with one of her wage stubs.

(72) On July 3,2003, Ms. Fitchett met with respondent at respondent’s office and paid her the sum of $190.

(a) Ms. Fitchett asked respondent when she would receive a written fee agreement.

(b) Respondent told Ms. Fitchett that respondent would mail her an agreement.

(c) Respondent provided Ms. Fitchett with a receipt confirming her payment, said receipt also indicating that the total amount due was $1,185.

(73) On July 18,2003, Ms. Fitchett made another payment of $300 and received a receipt confirming her payment.

(74) By letter dated July 21,2003, sent to respondent by facsimile transmission, Ms. Fitchett:

(a) Enclosed a letter she received from her mortgage company;

(b) Requested a reply; and

(c) Confirmed that on July 18, 2003, she went to respondent’s office and made an additional payment, leaving a balance owed of $295.

(75) Respondent received this letter but failed to respond.

(76) On August 1,2003, Ms. Fitchett went to respondent’s office and met with another individual.

(a) This individual obtained information from Ms. Fitchett regarding her assets, debts, income, and expenses.

(b) Respondent’s secretary advised Ms. Fitchett that a bankruptcy case would be filed on her behalf and respondent’s office would contact her again.

(c) Respondent’s secretary collected a payment of $295 from Ms. Fitchett and provided Ms. Fitchett with a receipt, which showed zero in the box entitled “due.”

(77) On August 18,2003, Ms. Fitchett left respondent a voicemail regarding the filing of the Chapter 13 bankruptcy petition.

(78) By letter dated August 19, 2003, sent to respondent by facsimile transmission, Ms. Fitchett:

(a) Stated that she had left respondent a voicemail on August 18, 2003, regarding the filing of the Chapter 13 bankruptcy petition;

(b) Informed respondent that she was contacting her by facsimile transmission because she had been unable to reach respondent or anyone else at the office by telephone to ask about receiving a written fee agreement and confirmation that respondent’s fee was paid in full; and

(c) Requested that respondent contact her.

(79) Respondent received this letter but failed to provide a written fee agreement and the requested confirmation.

(80) On August 21,2003, Ms. Fitchett and respondent had a telephone conversation regarding certain paperwork received by Ms. Fitchett which Ms. Fitchett agreed to forward to respondent.

(81) By letter dated August 22, 2003, sent to respondent by facsimile transmission, Ms. Fitchett:

(a) Stated that in accordance with a telephone conversation she had with respondent on August 21,2003, she was enclosing papers presented to her for respondent’s review;

(b) Requested that respondent review and handle the matter; and

(c) Informed respondent that the sheriff’s sale was scheduled for November 11, 2003.

(82) Respondent received this letter but did not respond.

(83) On August 24; 2003, Ms. Fitchett hand-delivered to respondent’s office, papers Ms. Fitchett had received from her mortgage company.

(84) By letter dated August 25, 2003, sent to respondent by facsimile transmission, Ms. Fitchett:

(a) Confirmed that on August 24, 2003, she hand-delivered to respondent’s office, papers she received from her mortgage company; and

(b) Enclosed those papers and requested that respondent handle the matter.

(85) Respondent received this letter but failed to respond to it.

(86) By letter dated October 6,2003, sent to respondent by facsimile transmission, Ms. Fitchett:

(a) Inquired if respondent had filed a Chapter 13 bankruptcy petition on her behalf;

(b) Informed respondent of her concern that she had yet to receive any paperwork confirming her payment of respondent’s fee in full;

(c) Asked when she would receive the plan payment schedule; and

(d) Advised respondent that she had been unable to obtain answers to her inquiries by telephone.

(87) Respondent received this letter but failed to respond.

(88) By letter dated October 30,2003, sent to respondent by facsimile transmission, Ms. Fitchett requested that respondent contact her regarding an attachment and the Chapter 13 petition.

(89) Respondent received this letter but failed to respond.

(90) From June 2003 through November 2003, Ms. Fitchett would call respondent from time to time and leave voicemail messages.

(91) Respondent failed to return Ms. Fitchett’s messages.

(92) Prior to respondent filing a Chapter 13 bankruptcy petition on behalf of Ms. Fitchett, Ms. Fitchett had presented to respondent’s secretary copies of the letters she had received from her three general unsecured creditors.

(93) On November 7,2003, respondent filed a Chapter 13 bankruptcy petition with the United States Bankruptcy Court for the Eastern District of Pennsylvania.

(94) Among the documents respondent filed with the court were the “Declaration concerning debtor’s schedules” and the “Declaration regarding the statement of financial affairs.”

(a) The declarations were signed, but left undated, by Ms. Fitchett at the request of respondent’s secretary.

(b) Ms. Fitchett was not presented with the completed Chapter 13 schedules or the statement of financial affairs at the time she signed the declarations or at any point prior to the filing of the Chapter 13 bankruptcy petition.

(95) On November 7,2003, respondent filed the completed Chapter 13 plan for Ms. Fitchett’s bankruptcy case.

(a) Ms. Fitchett did not review or sign the plan prior to its filing.

(b) Respondent listed herself on the plan as a secured creditor, claiming Ms. Fitchett owed respondent the sum of $ 1,000 as attorney fees, which statement was not true because Ms. Fitchett had satisfied respondent’s fee in full prior to respondent’s submission of the plan.

(96) Among the schedules respondent filed in connection with Ms. Fitchett’s bankruptcy case were Schedules F, G and I.

(a) Respondent left blank the Schedule F.

(b) Respondent failed to list on the Schedule G Ms. Fitchett’s creditors and the debts owed to them by Ms. Fitchett.

(c) The Schedule I showed gross monthly income and monthly net income in the amount of $2,116, with no payroll deductions listed.

(d) Respondent failed to list Ms. Fitchett’s payroll deductions on the Schedule I.

(97) By letter dated November 18, 2003, sent to respondent by facsimile transmission, Ms. Fitchett:

(a) Enclosed a November 10,2003 order she received from bankruptcy court; and

(b) Requested that respondent contact her regarding the missing documents required by bankruptcy court.

(98) Respondent received this letter and failed to respond to it.

(99) On November 24,2003, respondent filed with the bankruptcy court an “amended statement pursuant to Rule 2016(b)” in which respondent claimed that she was paid $500, that the total compensation due was $1,500 and that the balance owed was $1,000. The amended statement also stated that respondent was paid the filing fee of $185.

(100) When respondent had filed the amended statement, Ms. Fitchett had already satisfied respondent’s fee of $1,185.

(101) In or about December 2003, Ms. Fitchett received a telephone call from a secretary in respondent’s office regarding the amount of her Chapter 13 plan payment.

(a) The secretary informed Ms. Fitchett that her plan payment was $111 a month.

(b) Respondent’s secretary’s advice to Ms. Fitchett to pay $111 a month over 60 months resulted in the plan being overfunded.

(102) The U.S. Trustee, Frederick L. Reigle, Esquire, served respondent with notice of the section 3 41 (a) meeting of creditors, scheduled for January 23, 2004, at 10 a.m. at the Chapter 13 meeting room — The Bourse Building, Suite B 104, South Independence Hall, Philadelphia.

(103) Respondent failed to appear at the meeting on behalf of Ms. Fitchett.

(104) Respondent failed to arrange for substitute counsel to appear at the meeting on behalf of Ms. Fitchett.

(105) Respondent failed to notify either Ms. Fitchett or Mr. Reigle that she would not be attending the meeting.

(106) Ms. Fitchett appeared at the meeting.

(107) The meeting was re-scheduled to March 5,2004 at 2 p.m. at the same location.

(108) By letter dated January 27,2003, sent to respondent by regular mail, Mr. Reigle requested a written explanation for respondent’s failure to appear at the meeting.

(109) Respondent received this letter but did not respond to it.

(110) Mr. Reigle served respondent with notice of the meeting scheduled for March 5, 2004.

(111) Following the rescheduling of the meeting, Ms. Fitchett made several attempts to reach respondent by telephone, leaving messages requesting that respondent contact her.

(112) Respondent failed to return Ms. Fitchett’s calls.

(113) On March 4, 2004, respondent’s secretary contacted Ms. Fitchett and told her that respondent would not be able to attend the meeting but that respondent had arranged for Lawrence M. Kagan, Esquire, to appear at the meeting on behalf of Ms. Fitchett.

(114) On the day of the meeting, Mr. Kagan appeared and Ms. Fitchett consented to Mr. Kagan representing her at the meeting.

(115) At the meeting, Ms. Fitchett, for the first time, reviewed with Mr. Kagan the information contained in the completed schedules and the statement of financial affairs that respondent had filed.

(116) At the meeting, Ms. Fitchett testified regarding her three general unsecured creditors.

(117) At the meeting, Mr. Kagan, who had respondent’s file for the Fitchett matter, located the letters Ms. Fitchett provided to respondent’s office regarding her three unsecured creditors.

(118) At the meeting, Ms. Fitchett learned that the plan called for her to make monthly payments of $59.01 a month.

(119) At the meeting, Ms. Fitchett had with her copies of her wage stubs, which showed payroll deductions.

(120) On March 5, 2004, Mr. Reigle filed with the bankruptcy court a “motion of the standing trustee for the disgorgement of compensation” and a “United States Trustee’s motion for the imposition of sanctions against debtor’s counsel for violations of Fed.R.Bank.P. 9011(b)”.

(121) Respondent was served with the motions.

(122) On May 14,2004, a hearing on the motions was held before the Honorable Stephen Raslavich.

(123) Respondent was present at the hearing.

(124) By opinion and order dated May 21,2004, Judge Raslavich granted the motions and, inter alia, directed respondent to disgorge all fees paid to respondent by Ms. Fitchett.

(125) Judge Raslavich found that respondent violated Bankruptcy Rule 9011, which is titled “Signing of papers, representations to the court; sanctions; verification and copies of papers.”

Charge IV — Thornton Matter

(126) In or about April 2003, Tyesha Thornton was in default of her residential mortgage with Cendant Mortgage Company.

(127) Respondent mailed an undated solicitation letter to Ms. Thornton. Ms. Thornton contacted respondent in response to respondent’s solicitation letter.

(128) Ms. Thornton retained respondent to file a Chapter 13 bankruptcy petition on her behalf.

(129) Respondent’s fee for representing Ms. Thornton was $1,200 and a filing fee of $185.

(130) Respondent had not previously represented Ms. Thornton.

(131) Respondent failed to communicate the basis or rate of her fee, in writing, before or within a reasonable time after commencing the representation.

(132) From April 28,2003 through October 23,2003, Ms. Thornton made payments to respondent in varying sums, for which she received receipts, until respondent’s fee was satisfied in full.

(133) By letters dated May 2,2003, and May 6,2003, signed by Ms. Thornton, Ms. Thornton authorized Cendant to provide respondent with information regarding her mortgage.

(134) OnNovember 7,2003, respondent filed a Chapter 13 bankruptcy petition on behalf of Ms. Thornton with the United States Bankruptcy Court for the Eastern District of Pennsylvania.

(a) The Chapter 13 plan respondent filed called for Ms. Thornton to make monthly payments of $101.52 to Cendant to satisfy an arrearage of $6,000.

(b) The “statement pursuant to Rule 2016(b)” respondent filed with the bankruptcy court claimed that respondent was paid $1,000, that the total compensation due was $1,500, and that the balance owed was $500.

(c) The statement also stated that respondent was paid the filing fee of $ 185.

(d) When respondent had filed the statement, Ms. Thornton had already satisfied respondent’s fee of $1,000.

(135) The United States Trustee, William C. Miller, Esquire, served respondent with notice of the section 341(a) meeting of creditors scheduled for December 29, 2003.

(136) Ms. Thornton received notice of the meeting.

(137) Respondent advised Ms. Thornton that her attendance was not required at the meeting.

(138) Based on respondent’s advice, Ms. Thornton did not attend the meeting.

(139) On January 5, 2004, Mr. Miller filed a motion for dismissal based on Ms. Thornton’s failure to appear at the meeting.

(140) Respondent received a copy of the motion.

(141) Respondent failed to file an answer to the motion that explained that respondent had counseled Ms. Thornton not to appear at the meeting and that requested a rescheduling of the meeting.

(142) On January 6, 2004, counsel for Cendant filed an objection of Cendant Mortgage Corporation f/k/a PHH Mortgage Services Corporation to confirmation of the debtor’s Chapter 13 plan.

(143) The objection alleged that the Chapter 13 plan was under-funded, in that the amount of pre-petition arrears was $10,607.23.

(144) Respondent received the objection.

(145) Respondent failed to prepare and file an amended Chapter 13 plan on behalf of Ms. Thornton that would satisfy her arrearage to Cendant.

(146) On February 19, 2004, the bankruptcy court granted the motion and dismissed Ms. Thornton’s case.

(147) Thereafter Ms. Thornton retained respondent to file a second bankruptcy petition.

(148) Prior to respondent filing the second petition, Ms. Thornton paid respondent the sum of $695, $195 towards the filing fee and $500 towards respondent’s fee.

(149) On June 7, 2004, respondent filed a second Chapter 13 bankruptcy petition on behalf of Ms. Thornton with the United States Bankruptcy Court for the Eastern District of Pennsylvania.

(150) The second Chapter 13 plan respondent filed again called for Ms. Thornton to make monthly payments of $101.52 to satisfy an arrearage to Cendant of $6,000.

(151) Respondent failed to obtain updated information from either Ms. Thornton or Cendant regarding the amount of the arrearage, and respondent failed to prepare a second Chapter 13 plan that allowed Ms. Thornton to satisfy her arrearage to Cendant.

(152) On July 1, 2003, counsel for Cendant filed an objection to the Chapter 13 plan.

(153) The second objection alleged that the second Chapter 13 plan was under-funded, and the amount of pre-petition arrears was $14,859.26.

(154) On September 2, 2004, the bankruptcy court removed respondent as counsel for Ms. Thornton.

Charge V — Jackson Matter

(155) In or about January 2004, Winifred Y. Jackson was in default of her residential mortgage to Mellon Bank.

(156) In or about January 2004, respondent mailed an undated solicitation letter to Ms. Jackson.

(157) Respondent’s solicitation letter contained a heading that was misleading, as it gave the impression that respondent was operating a law practice in association with other attorneys. The letter also gave the impression that respondent’s office associated with or operated a mortgage refinancing company.

(158) Ms. Jackson arranged to meet with respondent on January 12, 2004.

(159) Respondent informed Ms. Jackson that her fee was $500.

(160) On January 12, 2004, Ms. Jackson went to respondent’s office and met with respondent’s paralegal named “Jan.”

(161) Jan told Ms. Jackson that respondent was out of the office and would contact her.

(162) Ms. Jackson provided Jan with a $400 money order and with copies of personal financial documents.

(163) Respondent had not previously represented Ms. Jackson.

(164) Respondent failed to communicate to Ms. Jackson the basis or rate of her fee, in writing, before or within a reasonable time after commencing the representation.

(165) After several days, Ms. Jackson began placing telephone calls to respondent’s office over a two-week period and left messages requesting that respondent contact her.

(166) Respondent failed to return Ms. Jackson’s messages.

(167) On or about January 27, 2004, Ms. Jackson finally reached respondent by telephone.

(a) Respondent told Ms. Jackson that she was out of town.

(b) Respondent informed Ms. Jackson that she required an additional payment of $294 before respondent would file a bankruptcy petition on Ms. Jackson’s behalf.

(c) Respondent directed Ms. Jackson to send the $294 payment to respondent’s paralegal, Nadirah Coleman, via Western Union.

(168) On January 27, 2004, Ms. Jackson sent a $294 payment to Ms. Coleman via Western Union.

(169) Shortly thereafter Ms. Coleman went to Ms. Jackson’s residence to have her sign some documents.

(170) From time to time, Ms. Jackson telephoned respondent and left messages, inquiring as to the name and address of the U.S. Trustee to whom she would be mailing payments and the amount of the payments. Respondent failed to return Ms. Jackson’s messages.

(171) On February 2,2004, respondent filed a Chapter 13 bankruptcy petition on behalf of Ms. Jackson with the United States Bankruptcy Court for the Eastern District of Pennsylvania.

(172) The documents respondent filed with the bankruptcy court were incomplete.

(173) By order dated February 4, 2004, the bankruptcy court directed that certain documents had to be filed by February 19, 2004, unless a timely request for an extension was made, or the case might be dismissed: Attorney disclosure of compensation; Chapter 13 plan; Matrix; all schedules; SSN statement of financial affairs; and summary of schedules.

(174) Respondent received the order.

(175) Respondent failed to file the required documents by February 19, 2004.

(176) Sometime in February 2004, respondent left a message for Ms. Jackson on her answering machine requesting that she come into respondent’s office to sign papers.

(177) Ms. Jackson immediately returned respondent’s message and left respondent several messages, advising that she was out of work on sick leave and could not stop by respondent’s office.

(178) Ms. Jackson requested that respondent mail her the papers she had to sign and she would complete and sign the paperwork, returning them to respondent by mail.

(179) Respondent failed to return Ms. Jackson’s messages or to mail the documents to Ms. Jackson.

(180) Respondent failed to make a timely request to the bankruptcy court for an extension of time to file the required documents.

(181) By order dated March 1, 2004, the bankruptcy court dismissed Ms. Jackson’s bankruptcy case.

(182) Respondent failed to advise Ms. Jackson that her case had been dismissed and that the court dismissed it due to respondent’s failure to timely file the required documents.

(183) The bankruptcy court sent a notice to Ms. Jackson advising her of the dismissal of her case.

(184) Ms. Jackson immediately called respondent and left respondent a message requesting that she return the telephone call.

(185) Over the next several days, Ms. Jackson tried reaching respondent by telephone, without success.

(186) Ms. Jackson finally contacted respondent by telephone and asked respondent to explain why her case was dismissed.

(a) Respondent told Ms. Jackson that the case was dismissed because Ms. Jackson had not come in to sign the paperwork.

(b) Ms. Jackson answered by asking respondent why she had not contacted her to make other arrangements to sign the necessary papers.

(187) On March 10, 2004, Ms. Jackson met with respondent at respondent’s office.

(a) Respondent told Ms. Jackson that she would have to re-file a bankruptcy petition on Ms. Jackson’s behalf and that she would charge Ms. Jackson $595.

(b) Respondent directed Ms. Jackson, who did not have the funds requested on her person, to send respondent the money via Western Union.

(188) On March 10,2004, Ms. Jackson sent respondent the $595 payment via Western Union.

(189) Thereafter Ms. Jackson left respondent a message informing her that she had sent the $595 payment and that respondent should call her to confirm the receipt of the funds.

(190) Respondent failed to contact Ms. Jackson.

(191) Over the next several weeks, Ms. Jackson would telephone respondent to ascertain the status of her case.

(192) Respondent failed to return Ms. Jackson’s messages.

(193) On or about April 13,2004, Ms. Jackson received a certified letter from Lauren R. Berschler, Esquire, a member of the law firm representing Ms. Jackson’s mortgage company.

(194) Ms. Jackson immediately contacted respondent and left several messages.

(195) Ms. Jackson made a visit to respondent’s office to discuss the letter but was told by respondent’s staff that she was out of town.

(196) After repeated telephone calls, Ms. Jackson finally made contact with respondent on April 24, 2004.

(a) Ms. Jackson informed respondent of the contents of Ms. Berschler’s letter.

(b) Ms. Jackson sent respondent the letter via facsimile transmission.

(c) Respondent received Ms. Jackson’s facsimile transmission.

(197) Ms. Jackson waited several days to hear from respondent and then decided to contact Ms. Berschler by telephone.

(198) Ms. Jackson learned from Ms. Berschler that respondent had not contacted Ms. Berschler; Ms. Jackson also found out that a second bankruptcy petition had not been filed.

(199) Over several weeks, Ms. Jackson telephoned respondent from time to time and left respondent messages.

(200) Respondent failed to respond.

(201) On or about May 26,2004, Ms. Jackson received a second letter from Ms. Berschler dated May 25, 2004.

(a) The letter, inter alia, informed Ms. Jackson that Mellon Bank had acquired her residence at a sheriff sale that took place on May 4, 2004.

(b)Ms. Jackson was also advised that possession of her residence must be surrendered immediately to Mellon Bank.

(202) On June 3, 2004, Ms. Jackson sent respondent Ms. Berschler’s letter by certified mail, restricted delivery.

(203) Respondent received this letter.

(204) On June 7, 2004, Ms. Jackson received a telephone call from respondent.

(a) Respondent asked Ms. Jackson to explain her reason for having mail delivered to her office by certified mail.

(b) Ms. Jackson replied that she did not receive a response to prior correspondence and wanted to be certain that respondent received her correspondence.

(c) Respondent claimed that she had not received any facsimile transmission from Ms. Jackson.

(d) Respondent told Ms. Jackson that she could not be forced to leave her residence and that respondent would either contact respondent’s realtor or attempt to secure a loan so that Ms. Jackson could pay off Mellon Bank.

(e) Ms. Jackson asked respondent to explain why she had not filed the second bankruptcy petition.

(f) Respondent failed to answer Ms. Jackson’s inquiry.

(205) Approximately one week later, Ms. Jackson placed a telephone call to respondent’s office to get an update on her matter.

(206) Respondent told Ms. Jackson that she was continuing to work on the legal matter.

(207) After speaking with respondent, Ms. Jackson placed a telephone call to Ms. Berschler and learned that respondent had not had any contact with Ms. Berschler.

(208) Ms. Jackson then contacted respondent by telephone and informed her of her conversation with Ms. Berschler.

(209) Respondent told Ms. Jackson not to call Ms. Berschler and to leave the communication to respondent.

(210) Sometime thereafter, Ms. Jackson placed a call to respondent at her office number and received a message that the office number was disconnected.

(211) Ms. Jackson reached respondent at respondent’s cell number. Respondent told Ms. Jackson that she no longer had an office.

(212) Respondent failed to file a second bankruptcy petition on behalf of Ms. Jackson.

(213) Respondent failed to have any further contact with Ms. Jackson regarding her legal matter.

(214) Respondent failed to refund the unearned advance payment of respondent’s fee and to provide Ms. Jackson with her legal file.

Charge VI — Nasir Matter

(215) In or about June 2004, Eugene Day Nasir and his wife Lakiia Nasir, were in default of their residential mortgage.

(216) In or about June 2004 respondent mailed an undated solicitation letter to Mr. and Mrs. Nasir.

(217) Respondent’s letter created the false impression that she was operating a law practice in association with other attorneys and that her office was associated with or operated a mortgage refinancing company.

(218) On June 7,2004, Mr. and Mrs. Nasir telephoned respondent and arranged a meeting on June 8 at Magee Rehabilitation Hospital where Mr. Nasir was recuperating from surgery.

(219) Respondent told the Nasirs that her fee was $400 to be paid in cash.

(220) On June 8,2004, respondent met with the Nasirs at the hospital.

(a) Respondent told the Nasirs that she could begin working immediately on refinancing their mortgage and negotiating an agreement with their mortgage company.

(b) Respondent informed the Nasirs that she would file a Chapter 13 bankruptcy petition if she was unsuccessful in refinancing the mortgage.

(c) Respondent provided the Nasirs with the name of a mortgage broker and told them she would contact another mortgage broker she knew.

(d) The Nasirs paid respondent $400 in cash.

(e) Respondent gave the Nasirs a business card that related to respondent’s ministry work and wrote on the back of the card the date of June 8, 2004 and that she received $400.

(f) Respondent told the Nasirs that she was leaving Philadelphia the next day but that she would contact the mortgage broker and the mortgage company while she was away and that she would contact them on June 14, 2004.

(g) Respondent was told that the date of the sheriff’s sale was July 16, 2004.

(221) Respondent had not previously represented the Nasirs.

(222) Respondent failed to communicate the basis or rate of her fee, in writing before or within a reasonable time after commencing the representation.

(223) Respondent failed to contact the Nasirs by June 14, 2004. On June 16, 18, 21 and 22, 2004, the Nasirs left messages on respondent’s answering machine, requesting that she return their telephone calls.

(224) On June 30,2004, respondent called the Nasirs and requested that they prepare a letter addressed to the mortgage company giving respondent permission to obtain information regarding their mortgage.

(225) On July 1, 2004, Ms. Nasir personally hand-delivered the requested letter and left it with respondent’s secretary.

(226) Over the next several days, Ms. Nasir spoke and met with a mortgage broker whose name respondent provided.

(227) Ms. Nasir asked the mortgage broker if he had been in contact with respondent regarding their refinancing options.

(228) The broker replied that he had only one conversation with respondent, which was approximately the day after the June 8, 2004 meeting.

(229) On July 2, 2004, respondent called the Nasirs and stated that she had not contacted them earlier because she was sick.

(230) Following respondent’s telephone conversation with the Nasirs, Mr. Nasir called the representative of the mortgage company who was handling their account.

(a) The representative told Mr. Nasir that respondent had not contacted her.

(b) The representative informed Mr. Nasir that it was too late to reinstate their mortgage and that filing for bankruptcy was the only option.

(231) Thereafter, the Nasirs left several messages for respondent on her answering machine requesting a return telephone call.

(232) On the evening of July 8,2004, respondent called the Nasirs.

(a) Respondent apologized for not contacting the Na-sirs earlier, explaining that she had some “important issues” to handle.

(b) Ms. Nasir expressed to respondent her displeasure with respondent’s failure to attend to their legal matter.

(c) Ms. Nasir also informed respondent that she should have directed her secretary to contact them so that they knew of respondent’s unavailability.

(d) Respondent again apologized and told the Nasirs that she had a “friend” that she would contact and that she would arrange for that person to file a Chapter 13 bankruptcy petition on their behalf.

(e) Respondent informed the Nasirs that she would call them the following day with additional information and to gather information from them and that she would arrange a joint meeting with respondent’s “friend” on Monday, July 12,2004.

(233) On July 13, 2004, respondent contacted the Nasirs.

(a) Respondent explained that she had not contacted them on July 12,2004, because she was “out of town”.

(b) Respondent told the Nasirs that she could arrange for a meeting to secure the information needed for filing the Chapter 13 bankruptcy petition.

(c) The Nasirs informed respondent that they no longer needed her services and requested a partial refund of the $400 fee they paid respondent.

(d) Respondent agreed to a partial refund and told the Nasirs that she would send them a refund check within a week after reviewing her “records”.

(234) On July 21, 2004, Ms. Nasir called respondent at her office telephone number to inquire about the refund and reached a recording stating that respondent’s office telephone number was disconnected.

(235) The Nasirs called respondent at her cell phone number.

(a) Respondent told the Nasirs that she had not prepared and mailed a refund check because her office had relocated and she did not have their address and correct spelling of their names.

(b) Ms. Nasir provided respondent with the information.

(c) Respondent told the Nasirs that she would mail a refund check that week and they should receive it by July 26, 2004.

(236) On July 27,2004, the Nasirs called respondent’s cell phone and left a message with the woman who answered the call.

(237) On July 30,2004, the Nasirs called respondent’s cell phone and left another message on her voicemail, informing respondent of their intention to file a complaint against her.

(238) Respondent failed to respond to the message and failed to refund the unearned portion of the advance payment of her fee.

Additional Findings

(239) In addition to practicing law, respondent has been active in ministry since approximately 1990, having received training in the ministry at Holy Temple Church of God in Christ, where she was ordained as an evangelist.

(240) Respondent served as the pastor of her own church, Vessels of Honor Worship Center located on Fitzwater Street in Philadelphia, from 1996 until 2004.

(241) Since late February 2006 respondent has been conducting her own ministry in Lithonia, Georgia, where she currently lives.

(242) Respondent deeply regrets her misconduct.

III. CONCLUSIONS OF LAW

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

(1) R.P.C. 1.1 — A lawyer shall provide competent representation to a client.

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

(3) 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.

(4) 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.

(5) R.P.C. 1.5(a) — A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.

(6) R.P.C. 1.5(b) — When a 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.

(7) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

(8) 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. The lawyer may retain papers relating to the client to the extent permitted by other law.

(9) R.P.C. 3.3(a)(1) — A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

(10) R.P.C. 4.1(a) — In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.

(11) R.P.C. 5.3(c)(1) — With respect to a non-lawyer employed or retained by or associated with a lawyer, a lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.

(12) R.P.C. 5.3(c)(2) — With respect to a non-lawyer employed or retained by or associated with a lawyer, a lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and in either case knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

(13) R.P.C. 5.5(a) — A lawyer shall not aid a non-lawyer in the unauthorized practice of law.

(14) R.P.C. 7.1(a) — A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

(15) R.P.C. 7.5(a) — A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1.

(16) R.P.C. 8.4(a) — It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

(17) R.P.C. 8.4(c) — A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(18) R.P.C. 8.4(d) — A lawyer shall not engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the board for consideration of the petition for discipline filed against respondent charging her with multiple violations of the Rules of Professional Conduct relating to her handling of six separate client matters. Respondent has acknowledged her misconduct and entered into joint stipulations of fact and law. The board’s responsibility is to determine the appropriate sanction to address the misconduct.

Respondent acknowledges that a suspension is appropriate. She seeks a suspension of one year and one day. Petitioner contends a minimum two-year suspension is warranted. The Hearing Committee recommended a suspension of one year and one day, emphasizing respondent’s complete cooperation, acknowledgement of wrongdoing, and decisions in prior disciplinary cases.

The board’s review of disciplinary matters is de novo; the board may adopt or reject the findings, conclusions and recommendation of the Hearing Committee after careful consideration of the matter. Pa.R.D.E. 205(c) (6); In re Anonymous No. 22 D.B. 85, 45 D.&C.3d 249 (1987). Our review of the instant matter leads to the conclusion that a two-year suspension is warranted. The underlying facts of the misconduct are quite serious. In six separate matters respondent engaged in extensive wrongdoing. Respondent’s clients were far from well-represented; indeed, they were neglected. Time and again, respondent took on cases and failed to follow through on the representation; failed to comply with court orders and attend meetings; failed to communicate; failed to provide written fee agreements; and failed to return client files and/or refund advance payments of fees that were not earned. Respondent’s clients were harmed by her actions. Furthermore, respondent mailed solicitation letters to four of her clients that contained misleading information, and she approved of her non-lawyer assistant meeting with and providing a client with legal advice on bankruptcy without respondent being present.

This is not respondent’s first encounter with the disciplinary system. She has a prior record of discipline consisting of an informal admonition imposed in 1998 and a private reprimand imposed in 2005. The focus of the reprimand was on respondent’s mishandling of two bankruptcy matters and her failure to return a retainer paid by a client. In conjunction with the reprimand the board ordered respondent placed on probation with a practice monitor. However, respondent claimed she could not obtain an attorney who would agree to monitor her practice and thus the probation never commenced.

The board is mindful of respondent’s cooperation and her sincere expressions of remorse and recognition of wrongdoing. While this acknowledgement of wrongdoing is certainly viewed with favor as it is an important step in repairing the damage respondent has done to her clients and the public in general, it cannot justify or excuse respondent’s harmful actions. The widespread nature of the neglect calls for more severe action than a suspension of one year and one day. An examination of disciplinary case law involving similar misconduct suggests that a two-year period of suspension is an appropriate response to the instant misconduct. Office of Disciplinary Counsel v. Bentivegna, no. 156 D.B. 2002, 70 D.&C.4th 202 (2004); Office of Disciplinary Counsel v. Bolno, 162 D.B. 2000, 812 Disciplinary Docket no. 3 (Pa. March 7, 2003); In re Anonymous Nos. 52, 79 and 116 D.B. 92 and 30 D.B. 93, 24 D.&C.4th 447 (1994).

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, F. Lee Lewis, 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 Baer did not participate in the adjudication.

Board Members Gephart, Wright and Saidis recused.

ORDER

And now, April 13, 2007, upon consideration of the report and recommendations of the Disciplinary Board dated January 26, 2007, it is hereby ordered that F. Lee Lewis 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.RD.E.

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

Mr. Justice Fitzgerald did not participate in this matter.


source: Caselaw Access Project

author: MARK, J,

license: Public Domain

text:
    Commonwealth v. Miller

      Christopher Jones, for Commonwealth.

      Brandon Reish, for defendant.
    January 7, 2008
   MARK, J,

SUPPLEMENTAL OPINION IN SUPPORT OF ORDERS PURSUANT TO Pa.R.A.P. 1925(a)

This matter comes before this court on Ricky Lee Miller’s (defendant) appeal of the following orders: April 24, 2007 (order denying defendant’s pretrial motion for dismissal for violation of Pa.R.Crim.P. 600 and the Interstate Agreement on Detainers Act (IAD), May 29, 2007 (bench trial verdict) and August 7, 2007 (sentencing order).

The basic history of this case is recited in our initial 1925(a) statement. In that opinion, we addressed the timeliness of the defendant’s appeal and expressed our opinion that it was premature for the defendant to file an appeal while his pro se post-sentence motion was still pending before this court. See order dated November 8, 2007. We also advised that we had scheduled a hearing on the post-sentence motion.

After our initial 1925(a) opinion was issued, the defendant filed a motion seeking leave to proceed pro se, despite the fact that we had appointed new counsel to represent him. The defendant’s new attorney filed a brief setting forth his position regarding the substantive and procedural issues in the case. We now file this supplemental opinion to update the record, summarize our disposition of all motions filed after the defendant was sentenced, and recite our reasons for denying the defendant’s pretrial motion to dismiss.

On December 7, 2007, the hearing on defendant’s post-sentence motion was held as scheduled. In his pro se motion, the defendant asked this court to grant his request for a new trial based on both a sufficiency of evidence and a weight of evidence claim and because of a boilerplate claim of ineffectiveness of counsel.

At the hearing, presided over by the Honorable Jonathan Mark, defendant withdrew his motion to proceed pro se and Attorney Brandon Reish (appointed by this court on October 4,2007) assisted the defendant throughout the proceeding. At the conclusion of the hearing, we denied defendant’s motion in its entirety. Our reasons were fully stated on the record and were summarized in the denial order. The transcript of the December 7,2007 hearing and the order denying the defendant’s post-trial motion are included in the supplemental record and incorporated herein.

On January 3, 2008, defendant appealed our order denying his post-trial motion. Thus, there are at present two open appeals.

We still believe that the initial appeal filed by the defendant is premature and should be dismissed or quashed. We further believe that, since all post-trial issues that were ripe for determination (or appellate review) have now been decided, the appeal filed on January 3, 2008 should be considered the operative appeal. To cover all bases, and because defendant will, in his second appeal, undoubtedly repeat his challenge to our pretrial ruling, we will address defendant’s claim that we erred in denying his pretrial motion to dismiss.

Defendant argued that this court erred in denying his omnibus pretrial motion in that the Commonwealth failed to exercise due diligence in bringing the defendant to trial, in violation of his right to a speedy trial under the United States and Pennsylvania Constitutions and applicable laws and rules of criminal procedure Pa.R.Crim.P. 600, including the IAD, 42 Pa.C.S. §§9101-9108, and the Uniform Criminal Extradition Act (UCEA), 42 Pa.C.S. §§9121-9148.

In denying the defendant’s omnibus pretrial motion, we were guided by Commonwealth v. McNear, 852 A.2d 401 (Pa. Super. 2004). The facts of the McNear case are strikingly similar to the facts of the instant matter. In McNear, the defendant argued that the trial court erred in dismissing his motion to dismiss for violating his right to a speedy trial under the United States and Pennsylvania Constitutions. In McNear, the defendant, on July 25, 2000, sold cocaine to an undercover police officer in Stroudsburg. A criminal complaint was filed against McNear on November 2, 2000, and an arrest warrant was issued on November 6, 2000. On December 8, 2000, after all attempts to locate the defendant failed, Detective Daniel Munch filed a wanted person form. On December 20, 2000, the National Crime Information Center notified Detective Munch that McNear was incarcerated in New Jersey. New Jersey authorities informed Detective Munch that the defendant would not be available for extradition until after he had served two sentences imposed in New Jersey. In June 2002, New Jersey authorities informed Detective Munch that defendant was available for extradition.

We now address defendant’s argument concerning the alleged violation of Rule 600. Rule 600, in pertinent part, provides as follows:

“Rule 600. Prompt trial
“(A)(2) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is incarcerated on that case, shall commence no later than 180 days from the date on which the complaint is filed.
“(B) For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.
“(C) In determining the period for commencement of trial, there shall be excluded therefrom:
“(1) the period of time between the filing of the written complaint and the defendant’s arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;...
“(3) such period of delay at any stage of the proceedings as results from:
“(a) the unavailability of the defendant or the defendant’s attorney;
“(b) any continuance granted at the request of the defendant or the defendant’s attorney.” Pa.R.Crim.P. 600.

Further, the comment to this rule indicates that:

“Under paragraph (C)(3)(a), in addition to any other circumstances precluding the availability of the defendant or the defendant’s attorney, the defendant should be deemed unavailable for the period of time during which the defendant contested extradition, or a responding jurisdiction delayed or refused to grant extradition; or during which the defendant was physically incapacitated or mentally incompetent to proceed; or during which the defendant was absent under compulsory process requiring his or her appearance elsewhere in connection with other judicial proceedings.” Pa.R.Crim.P. 600, comment.

Finally, in McNear, the Superior Court noted that

“The mechanical run date is the date by which the trial must commence under Rule 600. It is calculated by adding 365 days (the time for commencing trial under Rule 600) to the date on which the criminal complaint is filed. The mechanical run date can be modified or extended by adding to the date any periods of time in which delay is caused by the defendant. Once the mechanical run date is modified accordingly, it then becomes an adjusted run date.” McNear, 852 A.2d at 406.

For purposes of reviewing a trial court’s decision concerning Rule 600 issues, is whether the trial court abused its discretion. Id. Moreover,

“The proper scope of review in determining the propriety of the trial court’s ruling is limited to the evidence on the record of the Rule [600] evidentiary hearing and the findings of the lower court. In reviewing the determination of the hearing court, an appellate court must view the facts in the light most favorable to the prevailing party. A criminal defendant who is incarcerated in another jurisdiction is unavailable within the meaning of Rule 600 if the Commonwealth demonstrates by a preponderance of the evidence that it exercised due diligence in attempting to procure the defendant’s return for trial. Due diligence is a fact-specific concept that is determined on a case-by-case basis. Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been put forth.” Id. at 404. (citations and quotation marks omitted) (alteration in original)

Applying these principles, the Superior Court in McNear concluded that the trial court did not abuse its discretion in dismissing defendant’s motion to dismiss in light of the efforts Detective Munch put into seeking the defendant being extradited to Pennsylvania and the fact that New Jersey authorities denied extradition.

In the instant case, a Rule 600 evidentiary hearing was held on April 24, 2007. At the hearing, the Commonwealth presented credible testimony supporting the conclusion that the Commonwealth exercised due diligence in attempting to procure the defendant’s return to Pennsylvania. Corporal Jennings of the Pennsylvania State Police (PSP) testified that he was the lead investigator in two separate robbery cases for which he filed charges against the defendant on November 23, 2004 and December 14, 2004. At the time of the filing of the charges, Corporal Jennings was aware that the defendant was incarcerated at the Warren County Correctional Center, New Jersey. Corporal Jennings sent a letter to New Jersey authorities (Corporal Wright, Keeper of Records, Warren County Correctional Center) requesting that they accept as detainers the arrest warrants issued against the defendant in Pennsylvania for the two robberies. In that letter, Corporal Jennings also informed them that PSP was in the process of requesting extradition of the defendant to Pennsylvania. Corporal Jennings also testified that New Jersey authorities (Warren County Prosecutor’s Office and the Warren County Correctional Center) informed him that they would not release the defendant until he had been sentenced on the charges he had pending at that time in New Jersey. Corporal Jennings finally testified that he would check periodically with New Jersey authorities on defendant’s status.

In a conversation between Corporal Jennings and the New Jersey authorities on April 28,2006, Corporal Jennings learned that the defendant had been sentenced in New Jersey on April 3, 2006 and that the defendant had been transferred to the Northern State Prison (New Jersey Department of Corrections). In May 2006, Corporal Jennings contacted the Classification Department of the Northern State Prison and told them that Monroe County was interested in bringing the defendant back to Pennsylvania. Corporal Jennings also asked the New Jersey authorities to inform the defendant of Monroe County’s interest in bringing him to Pennsylvania and to suggest that the defendant initiate a prisoner-initiated IAD. Corporal Jennings never heard from the New Jersey authorities of any progress in a prisoner-initiated IAD. On cross-examination Corporal Jennings testified that the extradition process was not initiated because of the refusal of the New Jersey authorities to release the defendant to the Commonwealth prior to the defendant being sentenced in New Jersey.

Trooper Holtsmaster of the PSP testified that he had investigated two robberies in Monroe County for which he filed charges against the defendant. He learned from Corporal Jennings that the defendant was incarcerated in New Jersey and that the defendant would not be available to the Commonwealth until after being sentenced in New Jersey. Upon learning that the defendant had been sentenced, Trooper Holtsmaster contacted the Monroe County District Attorney’s Office to coordinate the transfer of the defendant to Monroe County. Trooper Holtsmaster learned that no transfer could be accomplished because the defendant had not executed the proper documentation. Moreover, it appeared that the defendant was not sure whether he wanted to be transferred to Monroe County. For these reasons, inAugust/September 2006, Trooper Holtsmaster started the process for extraditing the defendant to Monroe County.

While the extradition was pending, Trooper Holtsmaster learned on December 4, 2006, that the defendant voluntarily returned to Pike County (Pennsylvania) pending the adjudication of criminal charges filed in that county. Trooper Holtsmaster then requested a writ of habeas corpus ad prosequendum be issued to the Pike County Correctional Facility for the production of the defendant for the purpose of bringing him before a magisterial district judge in Monroe County. Said writ was issued on December 11, 2006. On December 13, 2006, the defendant was arraigned by Magisterial District Judge Germano and a preliminary hearing was scheduled for December 20,2006. At the December 20,2006 hearing, the defendant requested to represent himself. As a result of the defendant’s request, the preliminary hearing was rescheduled to determine the status of counsel. A hearing on the Commonwealth’s motion to determine status of counsel was held on January 5,2007, before the Honorable Ronald E. Vican. After hearing, Attorney James Gregor was appointed as counsel for the defendant. At the preliminary hearing held on January 10, 2007, all charges were bound to this court.

Ms. Carol Doss, the office manager of the Monroe County District Attorney’s Office, testified that she was in charge of coordinating the IAD and that the district attorney’s office received a letter (dated May 3, 2006) from the defendant on May 10, 2006, whereby the defendant provided the district attorney’s office with information regarding his place of confinement and a request for final disposition. She testified that the district attorney’s office received only that letter and that no other forms or documents were attached to it. She also testified that the defendant’s request could not be properly addressed because the defendant did not provide the proper documentation in support of his request. In an effort to have it done correctly, she contacted the Northern State Prison approximately four times informing them that the defendant’s request was not complete. Almost four months from the first time Ms. Doss contacted the Northern State Prison, it became clear that the district attorney’s office would not be able to bring the defendant to this county through the IAD. She then started the extradition process, which was ultimately discontinued when the district attorney’s office learned that the defendant voluntarily returned to Pike County to respond to charges there.

Defendant testified that he sent a letter dated May 3, 2006, to the Monroe County District Attorney’s Office asking for final disposition of the charges pending in this county. Defendant testified that he had been incarcerated inNew Jersey sinceNovember 23,2004. He also testified that, after he had been transferred to the Northern State Prison (New Jersey), he filled out all the paperwork for his return to Pennsylvania through the I AD. Defendant stated that he filled out forms for his return to Monroe County and Pike County. However, while he testified that he had a copy of the paperwork submitted for his return to Pike County, he was not able to provide any documentation in support of his statements concerning Monroe County. He also testified that he subpoenaed the official records from New Jersey’s classification center, to no avail. Defendant testified that he asked his attorney to request the very same documentation. Defendant also testified that he was never asked to, or waived extradition to Pennsylvania, although he was willing to return to Pennsylvania.

On cross-examination the defendant admitted that he fought with the troopers on December 4,2006 who went to New Jersey to take him to Pike County. He explained to the New Jersey authorities and the troopers that “he did not want to return to Pennsylvania at that time due to the fact I needed to see the governor’s warrant or some kind of extradition paperwork.” N.T., Rule 600 hearing, 04/18/2007, at 43. At closing, defendant’s attorney expressly asked the court for some time so that the defendant could retrieve the paperwork relating to his formal request for disposition in Monroe County. Id. at 46. The court addressed said request stating that “if you [defense attorney] want to submit something for me, if you could do that for me, please, by the end of the week for Mr. Miller. IT1 leave the record open for that, and make sure [attorney for Commonwealth] gets a copy of it.” Id. at 47. Defendant never provided any documentation supporting his claim.

In light of the efforts made by Corporal Jennings, Trooper Holtsmaster and Ms. Doss, and the refusal of the New Jersey authorities to surrender the defendant prior to him being sentenced in New Jersey, we found that the Commonwealth demonstrated by a preponderance of the evidence that it exercised reasonable due diligence in attempting to have the defendant released to Pennsylvania authorities. Therefore, we concluded that the time the defendant spent while under the auspices of New Jersey authorities was excludable for purposes of Rule 600. See McNear, supra.

Defendant also contends that the Commonwealth failed to bring him to Pennsylvania within the applicable statutory time frame under article III of the I AD. We disagree. There is no evidence that the defendant complied with the requirements set forth in article III of the IAD. In particular, subsection (a) of article III clearly indicates that a defendant must be tried within 180 days of his having delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction: (i) a written notice of the place of his imprisonment, (ii) a request for a final disposition to be made of the indictment, information or complaint, and a (iii) certificate

“of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.” 42 Pa.C.S. §9101, article 111(a).

Subsection (b) of article III, requires that “the written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him.” 42 Pa.C.S. §9101, article III(b).

The defendant sent a letter dated May 3, 2006, to the Monroe County District Attorney’s Office in which he requested final disposition of the charges pending in Monroe County. However, he failed to comply with all other requirements set forth in article III of the IAD. As such, the May 3, 2006 letter alone never triggered the 180-day period within which the Monroe County authorities had to bring the defendant to trial. Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993). Because the 180-day period was never triggered, we do not determine whether there is excludable time pursuant to article VI of the IAD.

The defendant finally argued that the Commonwealth failed to properly pursue all tools available to the Commonwealth (i.e., UCEA and IAD) for bringing the defendant back to Pennsylvania. A similar claim was raised by the defendant in McNear. The Superior Court addressed the claim noting that:

“in view of the fact that the New Jersey authorities opposed extradition, the Commonwealth was not necessarily compelled to proceed under either the IAD or the UCEA, where to do so would no doubt have been fruitless. Therefore, the due diligence provisions under those Acts are not implicated in the present case, even tangentially.” McNear, 852 A.2d at 407.

Similarly, we found that the New Jersey authorities opposed the release of the defendant to Monroe County prior to being sentenced in New Jersey. As such, it would have been fruitless to attempt to bring the defendant to Pennsylvania pursuant to either the IAD (assuming that it is applicable) or UCEA until the New Jersey authorities had sentenced the defendant.

      . There is no indication that the defendant argued that the Commonwealth failed to try the defendant pursuant to article IV of the I AD. At any rate, it appears that the 120-day period set forth in article IV was never triggered because there is no indication that the Commonwealth presented a written request for temporary custody or availability subsequent to filing the detainers (arrest warrants) against the defendant, pursuant to 42 Pa.C.S. §9101, article IV(a).

      . Article Vl(a) of the IAD provides that
      “In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” 42 Pa.C.S. §9101, article VI(a).


author: BLACK, P.J.,

text:
    Geosits v. Emmaus Borough Council

      Jeffrey Bartges, for appellants.

      Charles Fonzone and Frank G. Procyk, for appellees.
    August 21, 2007
   BLACK, P.J.,

Before the court are the consolidated appeals of 11 property owners in the Borough of Emmaus from decisions of the Emmaus Borough Council denying their applications for waiver or exemption from Emmaus Borough Ordinance 989, which requires them to install sidewalks on their properties. We previously denied the borough’s motion to quash the appeal of Margaret C. Geosits, one of the property owners, in our order of January 31, 2007.

After argument on the merits of the appeals, we find that the appeals must be sustained and the appellants exempted from any requirement to install sidewalks on their properties pursuant to the ordinance.

BACKGROUND

Emmaus Borough Council enacted the ordinance on January 17,2005. The preamble to the ordinance recites the following:

“Whereas, the Borough Council of the borough of Emmaus has determined the need for a new comprehensive, community-wide policy to govern the requirement, installation, construction and maintenance of sidewalks, curbs, handicap ramps and driveway crossovers throughout the Borough of Emmaus; and

“Whereas, a new ordinance is necessary to state when, where and how sidewalks must be installed, constructed and maintained; and
“Whereas, certain sections of the borough are not conducive to the installation and construction of sidewalk for various topographical and logistical reasons which the Borough Council intends to permanently exempt from the obligation to install and construct sidewalks; and
“Whereas, the Borough Council intends to connect all areas of the borough with concrete sidewalks; and
“Whereas, the Borough Council determines that it is in the best interest of the health, safety and welfare of the citizens of the Borough of Emmaus to enact the following ...

In accordance with this preamble, section 401(c) of the ordinance exempts certain areas of the township from the requirement to install sidewalks. Those property owners who were not exempted under the terms of the ordinance were to be notified in writing when they were to install sidewalks on their properties.

During May 2005, the borough manager sent notices to numerous properly owners in the borough, including the various appellants. The notices informed them that they were to install sidewalks on their properties, but that if they objected, they could file a request for relief from the ordinance. The notices stated, in pertinent part, the following:

“If you believe that council made a mistake by requiring your property or street to have sidewalk, please either write to Borough Council at 28 S. 4th Street, Emmaus, PA 18049 or attend a council meeting, which are held on the first and third Mondays of each month, to ask the council to consider any request that you may have. All requests will be reviewed by the Public Works Committee, which will make a recommendation to council concerning action to be taken.”

The notices did not identify any standards that would be applied in determining whether relief from the ordinance would be granted.

More than 100 property owners who received these notices, including the appellants, filed requests for a waiver or exemption from the ordinance. These requests were referred to council’s Public Works Committee for its review and recommendation. The committee then referred the requests to the full council for decision.

Council approved the majority, but not all, of these requests for relief from the ordinance. The ordinance itself does not establish any procedure for waiver or exemption. Council made these decisions on an ad hoc basis without any predetermined standards. No formal written decisions were issued setting forth the reasons for the grant or denial of the various requests. The ordinance was never formally amended to exclude any of the newly exempted properties.

Regarding the appellants’ requests for relief, the Public Works Committee voted two-to-one to recommend approval of the Geosits’ request, but voted to deny the requests for relief on the part of the other appellants. These matters were then referred to the full council for a formal vote.

On April 17, 2006, at its regular public meeting, and after discussion, council voted four-to-three to deny the request by Geosits for a waiver or exemption from the ordinance. Later, at council’s public meeting on June 5, 2006, council voted five-to-two to deny the requests for relief made by the other appellants.

The appellants have all appealed council’s denial of their requests for waiver or exemption from the ordinance.

DISCUSSION

The borough is authorized by the Borough Code at 53 P.S. §46801 to regulate sidewalks within its jurisdiction. Section 46801 provides:

“Any borough may lay out, ordain and establish sidewalks, curbs, gutters and surface water drains along any street... and may, with or without petition, require owners of property abutting on any street... to grade, construct, drain, pave and repave the sidewalk, curb or gutter and keep the same in repair ...

Borough Ordinance 989 was enacted pursuant to this authorization. However, the ordinance cannot be considered in a vacuum. The procedures adopted by the borough to implement and administer the ordinance must also be taken into account. This includes the invitation from the borough manager to numerous property owners, including the appellants, to apply to council for relief from the ordinance.

The ordinance itself does not contain any provision for waivers or exemptions to be granted. Neither the ordinance nor the letter from the borough manager sets forth any standards to be applied by the borough for granting waivers or exemptions. Council did not adopt written decisions stating the reasons for granting or denying the requests for waiver or exemption. As a result, there is no way for an individual property owner to obtain meaningful judicial review of council’s decision on his or her particular request for relief.

We find that the procedure employed by the borough with respect to waivers and exemptions from Ordinance 989 was deeply flawed. It violates the due process clause of the Fourteenth Amendment to the United States Constitution. Regardless whether the ordinance itself was a valid legislative enactment, the manner in which the borough invited and acted upon waiver and exemption requests clearly did not meet federal constitutional standards.

An ordinance must contain standards to govern its application. As stated in McQuillin, Municipal Corporations, §25.62, at 109 (8th ed.), “an ordinance must establish a standard to operate uniformly and govern its administration and enforcement in all cases, and ... an ordinance is invalid where it leaves its interpretation, administration or enforcement to the unbridled or ungovemed discretion, caprice or arbitrary action of the municipal legislative body or of administrative bodies or officials . ...”

This principle was applied in Orwell Township Supervisors v. Jewett, 132 Pa. Commw. 30, 571 A.2d 1100 (1990), to invalidate a junkyard ordinance. In Orwell, the court reviewed an ordinance that permitted a township to refuse a license to operate a junkyard on the basis of aesthetic reasons alone. The court held that such a standard was too vague and indefinite to ensure uniformity in its application. Hence the ordinance was unconstitutionally vague. See also, Fisher v. Viola, 789 A.2d 782, 787 (Pa. Commw. 2001) (“An ordinance is unconstitutionally vague and violates due process when persons of common intelligence must guess at its meaning.”).

In the instant case, Ordinance 989 contains no standard whatsoever for evaluating applications for waiver or exemption. Yet the borough invited such applications. The letter inviting applications for relief did not identify any legal standards by which the applications would be considered, and council never adopted any standards in subsequent legislation. As a result, council was left with unbridled discretion to grant or deny such requests.

A waiver or exemption process without specific standards opens the door to a lack of consistency in decision-making. That appears to be exactly what occurred here. The record reflects that council took a growing number of factors into consideration with each new request for waiver or exemption, resulting in unpredictable outcomes and unequal treatment. For example, council voted to grant exemptions to property owners at 336 and 350 S. Twelfth Street because of the presence of mature trees. Later, however, council denied an exemption to Dalton Street property owners, giving no weight to the fact that a mature tree would similarly be obstructing the path of the sidewalk.

The preamble to the ordinance states that in exempting part of the township from the sidewalk requirement council has considered “topographic and logistical” factors (not identified). The preamble also states that council is acting for the benefit of the “health, safety and welfare” of the community. The borough suggests that this preamble provides an adequate standard for review of the numerous exemption requests. We find this argument unconvincing for several reasons. First, the ordinance says nothing about a procedure for waivers or exemptions, and there is no basis for assuming that the preamble applies to the waiver/exemption applications. Second, the borough manager’s invitation for requests for relief did not identify any such standards. Third, the actions by council did not purport to apply any standards of general applicability. Fourth, the discussion by the Public Works Committee and by council included consideration of numerous factors, including personal hardship, unrelated to anything in the preamble.

Significantly, when the Geosits’ appeal was argued before this court on the borough’s motion to quash, we questioned the lack of standards in the ordinance for evaluating waiver or exemption claims. We have been advised that council then attempted to develop such standards, but was unable to agree on what those standards should be. If council, even at this late date, cannot agree on the standards to be applied for waivers or exemptions, it is impossible for this court to find that council members all had the same standards in mind when they heard and decided the more than 100 applications for relief.

For these reasons, the waiver/exemption procedure employed by the borough did not meet due process requirements. Neither Ordinance 989 nor any subsequent legislation established a standard for waiver or exemption requests to be evaluated on a uniform and consistent basis. Consequently, the appellants were deprived of liberty and property rights without due process of law, and their appeals must be sustained.

ORDER

Now, August 21, 2007, upon consideration of the consolidated appeals filed by appellants from the decisions of the Emmaus Borough Council denying their requests for waiver or exception from Borough Ordinance 989, after review of the parties’ briefs and oral argument and for the reasons set forth in the accompanying opinion, it is ordered that said appeals are sustained; the decisions of the Emmaus Borough Council on appellants’ requests for relief are reversed; and appellants shall not be required to install sidewalks on their properties under Ordinance 989.

      . Complaint, exhibit B, in docket no. 2006-C-1987.

      . The ordinance itself without the exemption process might pass constitutional muster. We do not decide this issue since it is not before us.

      . Emmaus Borough Council minutes, 3/6/2006, p. 39.

      . Notes of Testimony, 4/17/2006,2, 11-12.

      . According to the borough’s legal counsel, “Council has not been able to agree on an amended ordinance providing definite criteria and a procedure involving any request by a resident for an exemption from the ordinance . . . .” Letter from Frank Procyk, Esquire, to the court dated May 23, 2007.