author: NIX III, Member,

text:
    In re Anonymous No. 56 D.B. 94

      Disciplinary Board Docket no. 56 D.B. 94.
    October 13, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

NIX III, 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

By order of the Supreme Court of Pennsylvania dated March 24, 1994, a rule was issued to show cause why petitioner, having been convicted in the Court of Common Pleas of [ ] County of 21 counts of theft by failure to make required disposition of funds received in violation of 18 Pa.C.S. §3927, should not be placed on temporary suspension.

By order of the Supreme Court of Pennsylvania dated June 10,1994, respondent was placed on temporary suspension and ordered to comply with all the provisions of Rule 217, Pa.R.D.E., and the matter was referred to the Disciplinary Board pursuant to Rule 214(f)(1), Pa.R.D.E.

By order of the Supreme Court of Pennsylvania dated November 30, 1995, petitioner was suspended from the practice of law for three years, retroactive to June 10, 1994.

On November 30, 1998, a petition for reinstatement was filed.

On December 2, 1998, an amendment to petition for reinstatement was filed by [ ], Esquire, counsel for petitioner.

On December 2,1998, the matter was referred to Hearing Committee [ j, consisting of [ ], Esquire, chair, and Members [ ], Esquire and [ ], Esquire.

A hearing on the petition was held on March 23,1999.

The Hearing Committee filed its report on August 6, 1999, recommending petitioner’s reinstatement to active status. Neither party filed exceptions to the Hearing Committee report.

The matter was adjudicated at the August 18, 1999 meeting of the board.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, [ ], is a 43-year-old graduate of [ ] College. Petitioner was admitted to the Pennsylvania Bar in June 1981. After graduating law school, petitioner worked as a volunteer for the [A] County Legal Aid in 1981 and 1982. She then worked at the law offices of [B] in 1982 and 1983; [C] from 1983 to 1986; and [D] until 1987. From 1987 to 1991, petitioner worked for [E], Esquire.

(2) Petitioner began the use of cocaine during her last weekend of law school, Memorial Day, 1980. Between 1980 and 1987, she became addicted to cocaine.

(3) In August 1991, [E] learned that petitioner had taken checks from his practice, and had cashed and deposited them in her own account. Petitioner was arrested and charged on December 8,1992. On December 1,1993, petitioner reached an agreement with [E], under which she would pay him $55,000 (without interest) over a 10-year period, and assign to him one-half of any referral fees generated by two litigation matters she had referred to other law firms. On December 1,1993, petitioner entered into a negotiated plea in which she pled guilty to 21 separate counts of theft by failure to make required disposition of funds received, in violation of 18 Pa.C.S. §3927, a misdemeanor. That same day, the Court of Common Pleas of [ ] County imposed a sentence which included:

(a) 48 months probation;

(b) $250 fine;

(c) restitution in the amount of $10,468; and

(d) 200 hours of community service.

(4) By order of the Supreme Court of Pennsylvania dated June 10,1994, petitioner was placed on temporary suspension and ordered to comply with all the provisions of Rule 217, Pa.R.D.E., and the matter was referred to the Disciplinary Board pursuant to Rule 214(f)(1), Pa.R.D.E.

(5) The petitioner was found by this board to have violated R.P.C. 8.4(b) and R.P.C. 8.4(c).

(6) On November 30, 1995, the Supreme Court of Pennsylvania ordered petitioner suspended from the practice of law for a period of three years, retroactive to June 10, 1994.

(7) The theft of the monies from [E] by petitioner was in support of her cocaine habit. The money was spent on cocaine and she had no assets left to show for it.

(8) Petitioner attended and completed an inpatient drug program at [F] Institute and continued with therapy, along with AA and NA meetings.

(9) Between 1993 and 1997, petitioner reported to and cooperated with her probation officer, [G]. During that period of time, random urinalysis were taken and all were negative. Petitioner complied with all the rules and regulations of her probation. She paid all court-ordered restitution ($10,468). She also performed 200 hours of community service at [F] Institute, the public library, [¶] Hospital and Town Watch.

(10) Petitioner remains in contact with [I], her preorder sobriety monitor, and maintains a sponsor at AA.

(11) Petitioner has been a patient of a licensed psychologist, Dr. [J], since September 1995, after she had completed her drug abuse program. Petitioner’s initial diagnosis was dysthymia, which is a mild form of depression, changing to adjustment disorder, with mixed features of anxiety and depression. Dr. [J] believes that these conditions do not exist anymore.

(12) Dr. [J] has not seen any evidence of a return to alcohol or drug use, or a change in personality that might indicate a return to alcohol or drug abuse. Dr. [J] believes that he has seen the opposite and opines that petitioner has learned her lesson well and is a responsible person and a responsible mother. (N.T. pp. 18-19.) Petitioner’s ability to provide care to her son, who is handicapped, shows that she has learned to cope with her problems, and Dr. [J] farther believes that she is psychologically fit to return to the practice of law.

(13) Petitioner worked briefly as an administrative assistant at [K] between September 1995 and November 1995.

(14) Petitioner was divorced on November 28, 1995. At the time of the divorce, she had a very bleak financial picture. Petitioner’s debts totaled approximately $100,000, including $55,000 owed to [E]. Her financial situation was the primary cause of her divorce. She left the marriage with only $10,000 plus the security deposit for an apartment.

(15) Petitioner’s total gross income for the three years 1994, 1995 and 1996 was about $81,000 combined.

(16) On November 28,1995, petitioner began employment at [L], a personnel placement agency. She passed the Pennsylvania licensing exam for employment counselors in 1996 and now works as an employment counselor for [L]. Her employer provided a letter indicating that petitioner is a hardworking, dedicated and loyal employee; she is reliable and her attendance is excellent; she is also able to generate many referrals because of her positive attitude and strong work ethic.

(17) In 1997, petitioner’s gross income from [L] was about $64,000. In 1998, her gross income from [L] was about $80,000, and she grossed $34,000 from the [M] referral fee. (N.T. pp. 156-57.) She is also a [N] representative.

(18) As of May 1998, petitioner had made 43 payments to [E] totaling $12,078. According to the terms of the agreement petitioner executed on December 1,1993, she should have paid $24,000 by that date. [E] made numerous efforts to collect the remaining money owed to him.

(19) Petitioner admitted that she did meet the financial arrangement she had made with [E] as a result of paying off other debt. By the date of the hearing, petitioner had paid off all but $5,000 of the debt owed to creditors other than [E]. She never intended to avoid the debt to [E] and considered this repayment a part of her rehabilitation.

(20) Negotiations between petitioner and [E] to settle this claim in full began in July of 1998, after the receipt of a $68,000 referral fee in the matter of [M], which petitioner shared with [E] equally. That fee was far more than either party expected, and petitioner immediately notified [E] of the receipt of the fee. Petitioner and [E] discussed the possibility of a lump sum payment as a means of reaching a settlement. [E] proposed a lump sum of $33,000 for the settlement, but it took several months of negotiations to reach an agreement on the amount of the lump sum. Petitioner also provided [E] with evidence of an insurance policy on her life with [E] named as beneficiary.

(21) After receiving her $34,000 share of the [M] referral fee, petitioner paid the Disciplinary Board, her attorney and about $ 17,800 owed on revolving credit cards. Petitioner’s aging car failed during this period, and she had to replace it with a used car.

(22) Petitioner then directed her attorney to resolve the matter with [E]. Negotiations took a positive turn once counsel was involved.

(23) The arrangements to settle [E’s] outstanding claim were finally completed on March 23, 1999. Petitioner’s family offered collateral to secure the debt and her father did so only because he felt certain that his daughter had finally gotten her addiction under control.

(24) [E] testified that the settlement between him and petitioner was fair. By receiving $30,000 within days of the hearing for reinstatement, [E] would actually be receiving more than the previous payout agreement had required, because that agreement did not call for any interest payments.

(25) Petitioner testified that she feels horrible about what she had done to [E] and that repaying [E] was one of the most important things in her life. The impact of completing restitution on reinstatement was not her primary reason for repaying this debt. It had more to do with her coming to terms with what she had done to [E].

(26) Petitioner has no hesitancy in believing in her capability to return to the practice of law, and states that she is not the same person she was when she began using drugs.

(27) Petitioner shares custody of her son with her ex-husband. She now lives with her son, [O], age 6. [O] has a disability called “apraxia” that has caused delays in his speech. Petitioner is a responsible mother.

(28) Petitioner has taken 36 credits of continuing legal education including the “Essentials of Pennsylvania Practice” course in December 1997. She regularly reads the Pennsylvania Reporter and [ ], and has maintained a subscription with the [ ] County Law Reporter as well as maintaining links on her computer to the Superior Court and other law sites.

(29) Petitioner formerly had a general practice. She has made no specific plans for returning to the practice of law, but would like to begin a practice slowly while continuing her work as an employment counselor because of financial obligations.

(30) If reinstated, petitioner intends to again volunteer for [A] County Legal Aid, the group she had worked for in 1981 and 1982.

(31) There was an omission in petitioner’s reinstatement questionnaire. The questionnaire did not mention a civil action filed by petitioner in 1992 against [E], alleging defamation. This action was settled as part of the December 1993 agreement between petitioner and [E]. Petitioner testified that this was an unintentional omission. This action was part of petitioner’s original disciplinary action record and was discussed in her disciplinary proceeding before the board in 1995.

(32) Several individuals also testified at the hearing of this matter on behalf of the petitioner, including: [P], [Q], Esquire, ,[G], [R], [S], [T], [U], [V], [W], and petitioner’s father, [X].

(33) Summarizing the witnesses’ testimony, petitioner has candidly told others about her prior conduct and criminal conviction. (N.T. pp. 30-31, 37-38, 88-89, 94, 99-100, 108, 112.) She has expressed remorse for her conduct. (N.T. pp. 22-23, 37-38, 89.) Petitioner has developed a reputation as a hard worker, having honesty and integrity. (N.T. pp. 37-38, 88, 94, 99-100, 108,113, 122, 177.)

(34) Several witnesses, including [E], testified that they would not have any hesitancy in dealing with petitioner as an attorney if she is readmitted. (N.T. pp. 43, 68, 90, 95,109.) Her former employer, [E], never had any problem with petitioner’s representation of clients, and three of the witnesses testified that they would not hesitate to use her as their attorney should they require legal services.

in. CONCLUSIONS OF LAW

At the time petitioner committed the misconduct that resulted in her suspension, she was suffering from an addiction to cocaine.

There was a cause-effect relation between petitioner’s addiction and her conversion of client and firm funds.

The misconduct for which petitioner was suspended, although deplorable, is not so egregious as to preclude present consideration of her petition for reinstatement.

Permitting petitioner once again to enjoy the privilege of practicing law in this Commonwealth would not denigrate the public’s perception of the bar, and will demonstrate that the bar’s application of its disciplinary standards is in accordance with reality and sensitivity to public safety.

Petitioner has demonstrated by clear and convincing evidence that she has the present moral qualifications, competency and learning in the law required for reinstatement to the practice of law.

The resumption of the practice of law within the Commonwealth by petitioner will be neither detrimental to the integrity and standing of the bar, or harmful to the administration of justice nor subversive of the public interest.

IV. DISCUSSION

Any petitioner seeking reinstatement of the privilege to practice law in this Commonwealth has the burden of proving by clear and convincing evidence, that the petitioner has the moral qualification, competency and learning in the law, so that his or her resumption of the practice of law would not be detrimental to either the integrity and standing of the bar or to the administration of justice. Further, a petitioner’s resumption of the practice of law must not be perceived as being subversive to the public interest. Pa.R.D.E. 218(c)(3)(I).

The sole question before this board is whether this petitioner’s request for reinstatement to the bar of the Commonwealth of Pennsylvania should be granted. The reinstatement proceeding involves a study of the nature and extent of the rehabilitative efforts she has made since the time the sanctions were imposed, and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers Inc. v. Disciplinary Board, 468 Pa. 382, 385-86, 363 A.2d 779, 780-81 (1976).

The Hearing Committee determined that petitioner has been successful in combating and overcoming her chemical dependence and shows no signs of resuming the substance abuse that she had engaged in that led to her misconduct and suspension. She has learned that she can handle the uncertainties of life without using drugs as a crutch, and continues to maintain and support Narcotics Anonymous to keep her addiction under control.

The issue before this board is whether the petitioner possesses the moral character necessary to resume the practice of law. A petitioner may prove the requisite moral qualifications through the introduction of favorable character testimony by well-respected sources. In re Anonymous No. 99 D.B. 84, 14 D.&C.4th 342, 357 (1991); In re Anonymous No. 24 D.B. 84, 14 D.&C.4th 235, 244 (1991). The Hearing Committee concluded, and this board agrees, that the petitioner has presented uncontroverted evidence by way of testimony attesting to her favorable character from both a member of the bar and persons in the community. A letter from the petitioner’s employer was also presented as evidence of her character.

The testimony proved that petitioner has again become a productive member of society. She has become a valued employee and is highly regarded by many friends. A common thread in the character witnesses’ testimony is that petitioner has built herself a reputation for honesty and integrity. She has also been a responsible parent for her son.

It has also been proven that petitioner has taken action to maintain her competency and learning in the law in accordance with sections 89.275(a)(15) and 89.279(a) of the Disciplinary Board Rules. Petitioner has shown remorse for her conduct. This was evident in her testimony, in her statements to character witnesses, in her statements to [E], and in her discussions with her therapist.

The sole issue raised by the Office of Disciplinary Counsel that impacts on the petitioner’s moral character was her failure to immediately pay some of the monies owed to [E], upon her receipt of a referral fee from the [M] case, together with the timing of petitioner’s settlement with [E] which took place on the eve of the reinstatement hearing. This board, after reviewing the findings of the Hearing Committee, together with its own review of petitioner’s financial records, concludes that at no time did petitioner lack an intention to repay [E]. [E’s] debt was not petitioner’s sole financial obligation and her decision to pay other debts should not be held against her. Further, petitioner was willing to resort to asking her family to help her repay her debts. The $30,000 mortgage of her retired father’s home, which she used to complete the restitution payment to [E], is evidence of her intention to repay all of her debts.

It is well-settled law that where a petitioner has unpaid debts due to an inability to pay, rather than intent not to pay, the unpaid debts do not preclude readmission to the bar. See for example, In re Anonymous No. 82 D.B. 84, 8 D.&CAth 514 (1990), in which the petitioner’s inability to complete payments on existing judgments was considered by this board and did not preclude the petitioner’s reinstatement, based at least in part on the petitioner’s intention to repay these debts over the next two years. The Supreme Court granted the petition for reinstatement.

Also see, In re Anonymous No. 76 D.B. 82, 14 D.&C.4th 371 (1991), in which the petitioner had an outstanding malpractice claim and the Hearing Committee recommended conditional reinstatement subject to the petitioner satisfying the debt. Prior to a decision by this board, the petitioner satisfied the debt and this board recommended reinstatement which was granted by the Supreme Court.

The instant case is clearly distinguishable from In re Anonymous No. 74 D.B. 89, (1996), in which the petitioner’s income during his period of suspension was substantial, and his home was titled to a family friend, even though the petitioner paid the monthly obligations. The petitioner also drove an automobile which was titled to his mother, although the petitioner made the payments on the vehicle. The petitioner also defaulted on credit cards incurred during his suspension and owed the Disciplinary Board for the costs of his disciplinary proceeding. His petition for reinstatement was denied.

In the instant case, the record shows a pattern of 43 payments by petitioner over the first four years following the initial restitution agreement between her and [E]. Although less than the agreed upon amount, the petitioner has clearly shown her intention to make restitution, even though these payments were less than the agreed to amount. There was also a lapse in 1998, where no payments were made, immediately preceding the outcome of the [M] case. Petitioner, immediately upon learning of the referral fee in the [M] case, negotiated a lump sum payment to [E] that would satisfy her outstanding obligation to him.

This board agrees with the Hearing Committee’s determination that these negotiations were made in good faith and did not involve any intent to avoid or delay payment. It is indeed noteworthy that [E] himself acknowledged that he was getting more (present value) from the $30,000 lump sum payment than he would have received from the interest-free payment schedule. This negotiation of a lump sum payment in no way shows any lack of moral qualifications.

This board does take notice of the timing of the payment, being on the eve of the reinstatement hearing. However, this board agrees with the Hearing Committee’s finding that these negotiations were conducted by petitioner’s counsel in good faith. Such negotiations, even if they happen to reach conclusion on the eve of a hearing, should not reflect any negative light on the petitioner. Given the numerous hurdles she has had to leap, this board is convinced that petitioner’s moral qualifications to practice law are not in question.

If this board were to consider Disciplinary Counsel’s charge that petitioner’s payment of this debt at the 11th hour is a flaw in her moral qualifications, we would put an impossible burden on any future petitioner who might seek reinstatement while burdened by debts that he or she is unable to pay. Such an approach to the reinstatement process would be patently unfair and, in the opinion of this board, improper. (See In re Anonymous No. 82 D.B. 84, 8 D.&C.4Ü1514 (1990).)

Disciplinary Counsel also raises the issue of petitioner’s omission of certain information from her reinstatement questionnaire. The questionnaire failed to mention that, prior to the disciplinary proceeding that led to her suspension, she had filed a civil action naming [E] as defendant. This board agrees with the Hearing Committee that this omission is not sufficient to deny petitioner’s request for reinstatement. (See In re Anonymous No. 3 D.B. 96, 171 disciplinary docket no. 3 (1998).) “A defective questionnaire should not be a bar to readmission where petitioner testified at the hearing and fully explained any discrepancies.” Also see, In re Anonymous No. 60 D.B. 75, 18 D.&C.3d 640 (1981), wherein the petitioner omitted from his questionnaire three civil actions to which he was a party. These omissions were found not to be relevant to the reinstatement. In the instant case, the petitioner testified that the omission was inadvertent and that the information was before the board at the time that she was suspended from the practice of law and was presumably taken into consideration by the board at that time.

This board finds that the petitioner has met her burden and shown that she possesses the requisite moral qualifications to be reinstated to the practice of law in the Commonwealth of Pennsylvania. We also find that the petitioner’s resumption of her practice of law would not be detrimental to the integrity and standing of the bar or the administration of justice, nor will it be subversive of the public interest.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], 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 Member Rudnitsky did not participate in the August 18, 1999 adjudication.

ORDER

And now, December 9, 1999, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated October 13,1999, 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.


source: Caselaw Access Project

author: VAN HORN, J.,

license: Public Domain

text:
    Sanders v. Funk

      C.P. of Fulton County,
    no. 50 of 2000-C.

      Stephen D. Kulla, for plaintiff.

      Tómela Mellott-Bard, for defendant.
    April 28, 2000
   VAN HORN, J.,

PROCEDURAL AND FACTUAL BACKGROUND

This matter comes before the court on a petition filed by Michael R. Sanders, biological father of Kaitlyn Adelle Ramsey, born October 19, 1999, requesting a change of name for the child to Kaitlyn Adelle Sanders.

Kaitlyn’s parents, Michael R. Sanders and Naomi Funk, met while students at Juniata College. They began an intimate relationship in the fall of 1998 and Naomi advised Michael of her pregnancy shortly thereafter. Michael accompanied Naomi to one of her doctor’s appointments prior to her leaving school without notification to Michael and moving back to the McConnellsburg area. Michael finished the spring semester at Juniata College but did not return to school in the fall of 1999.

Shortly after Naomi returned to the McConnellsburg area she resumed a relationship with Jason Ramsey whom she has known for more than seven years. They began sharing a home together in May of 1999.' Jason was supportive of Naomi throughout her pregnancy and apparently had reason to believe that he may be the biological father of her child. At the time of Kaitlyn’s birth, he signed an acknowledgment of paternity at the hospital.

Naomi and Jason purchased land together in September of 1999 and are building a house. They also have started a business together with Naomi doing the secretarial work for the business. While both Naomi and Jason testified as to their plans to marry in the future, no definite wedding date has been set.

Naomi wishes the child’s surname to remain “Ramsey” because she and Jason plan to have children in the future that will have the Ramsey name and because there are several mementos from Kaitlyn’s birth which are personally monogrammed with the Ramsey surname.

It was unclear from the evidence presented at the hearing held on April 18, 2000, as to the number of contacts between Michael and Naomi throughout her pregnancy, although Naomi did admit that Michael had telephoned her “a few times” but she was not really sure that he was going to be involved in the child’s life.

In the fall of 1999, Michael obtained legal counsel to pursue custodial rights of his yet unborn child. He also sent correspondence through his attorney to Naomi at her parents’ home requesting that he be permitted to be involved with the birth of his child, be notified at the time of the child’s birth and requested that the “Sanders” surname be given to the child. Naomi’s parents chose not to give her that letter until after the birth of Kaitlyn for fear that it may upset her. In subsequent correspondence from Naomi’s attorney, she advised that she was denying that Michael was the father and that Jason was assuming the parental role. It was Naomi that required the paternity testing that ultimately confirmed Michael’s paternity of Kaitlyn.

Under the current custody order, Michael is seeing Kaitlyn each Saturday from 8 a.m. until noon and testified that he wants as much time with his daughter as possible although he is not challenging Naomi’s role as primary custodian. Naomi acknowledged that when Kaitlyn is no longer nursing she would expect Michael to have more time with her.

No negative connotations to the “Sanders” surname were indicated at the time of the hearing and the same is true of the “Ramsey” surname.

DISCUSSION

This petition is brought pursuant to 54 Pa.C.S. §702. While the statute provides for the procedure to pursue a change of name, no criteria are contained in the statute for the court to consider when exercising its discretion upon such a petition. In the case of Falcucci Name Case, 355 Pa. 588, 592, 50 A.2d 200, 202 (1947) the Supreme Court stated that petitions for a change of name must be reviewed by the court in a way “to comport with good sense, common decency and fairness to all concerned and to the public.” It is also well settled that the court must determine whether a change of name is in the child’s best interest and further, that the petitioner must bear the burden of proving that the change of name would be in the best interest of the minor child. In re Zachary Thomas Andrew Grimes, 530 Pa. 388, 609 A.2d 158 (1992).

Each case must turn on the particular factual circumstances of the situation and no definitive case law applicable to the facts of this case was presented by either party. Naomi urges the court to follow the reasoning of Petition of Schidlmeier, 344 Pa. Super 562, 496 A.2d 1249 (1985), where the child was born during wedlock but after the parties had separated. Mother gave the child her last name which was not the name of the child’s father. Father paid support and had regular contact with the child but the child primarily resided with her mother in a family unit consisting of mother, daughter and half-sister. Father brought the petition to have the child’s surname changed to his name 18 months after the child was bom. The petition was denied. This case is certainly distinguishable since the critical fact in the case before the court for decision is that Kaitlyn’s surname is that of her mother’s boyfriend and Kaitlyn does not bear the surname of either her mother or father. While the court does not doubt the testimony of Naomi and Jason as to their plans at this time, there is no proven commitment of the two through marriage and the court is troubled by Kaitlyn bearing the Ramsey surname when her mother has not taken steps through marriage to change her own surname to that of “Ramsey.”

Naomi doubts Michael’s intentions in requesting the change of name and feels that he may be embarrassed by his child bearing the name of another man. It is equally probable that Naomi is embarrassed to have her child bear the “Sanders” surname due to her efforts to hold this child out to the world as the child of Jason Ramsey.

While Naomi may have doubted Michael’s commitment to the child early in her pregnancy, it is uncontroverted that Michael took all necessary steps to assert parental rights even prior to the birth of the child by hiring an attorney to pursue custody rights. When met with resistance by Naomi who contested his paternity, he proceeded with blood tests to establish that he is the biological father of Kaitlyn. He also has promptly proceeded through the courts to attain custodial rights with his daughter. Michael made his wishes known prior to the birth of his daughter that she be given his surname and just four months after her birth pursued the matter through the court by the filing of the petition which brings this matter to court for decision.

In following the guidelines of the Pennsylvania Supreme Court as stated in the Falcucci case, supra, we must look at this matter with good sense, common decency and fairness to all. It is this court’s judgment that Kaitlyn should not have the surname of a person who is unrelated to her in any manner and that to continue her surname of Ramsey is misleading to her as well as the public since Mr. Ramsey has absolutely no legal relationship to the child. The court must also consider the natural bond that exists between Michael and Kaitlyn, and the child’s right to feel connected to her biological parent by the sharing, of a surname as being in her best interest.

For all of these reasons, the court will grant the petition of Michael R. Sanders requesting the change of name for his daughter Kaitlyn Adelle Ramsey who shall hereafter be known as Kaitlyn Adelle Sanders.

ORDER

And now, April 28, 2000, upon consideration of the petition of (sic) change of name filed in the above-captioned matter and after hearing held on the same, it is hereby ordered that the name of Kaitlyn Adelle Ramsey shall be changed and that she shall hereafter be known as Kaitlyn Adelle Sanders. The parties are directed to take all necessary steps to effectuate the name change on the child’s legal records.


author: DOERR, 3.,

text:
    Goehring v. Alioto

      C.P. of Butler County,
    no. 93-10654.

      Niel Saunders, for plaintiffs.

      Lee Montgomery, for defendants.
    December 21, 1999
   DOERR, 3.,

Before the court is a motion for summary judgment filed by defendant Fred Gibbons and defendant Victoria Gibbons.

BRIEF FACTUAL BACKGROUND

On February 7, 1992, defendant Robert J. Klein stole a motor vehicle owned by defendant John Alioto and defendant Kathleen Alioto. Defendant Brian Gibbons was a passenger. Law enforcement officers spotted the vehicle being driven by Robert Klein and a chase endued. During the chase, Robert Klein collided the Alioto automobile into another motor vehicle driven by plaintiff Lori L. Goehring. Lori Goehring sustained physical injury and she brought suit in negligence against the defendants.

LEGAL STANDARD

Summary judgment is granted properly when the moving party is entitled to judgment as a matter of law. McConnaughey v. Building Components Inc., 536 Pa. 95, 637 A.2d 1331 (1994). When deciding a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party and it must resolve all doubts concerning the existence of a genuine material fact against the moving party. Redland Soccer v. Department of Army, 548 Pa. 178, 696 A.2d 137 (1997).

Because an order favorable to the moving party will end prematurely an action, summary judgment should be entered only in the clearest of cases. Boyer v. Walker, 714 A.2d 458 (Pa. Super. 1998).

LEGAL ANALYSIS

Defendant Fred Gibbons and defendant Victoria Gibbons argue that plaintiffs have failed to establish a cause of action for negligent supervision of a child. Plaintiffs counter that defendant Fred Gibbons and defendant Victoria Gibbons had the means and method to prevent the automobile theft but they did not exercise the necessary steps to prevent it.

At common law, the mere relation of parent and child imposes upon the parent no liability for the torts of the child, but the parents may be liable where the negligence of the parents makes the injury possible. Condel v. Savo, 350 Pa. 350, 39 A.2d 51 (1944). The injury committed by the child must have been the natural and probable consequence of the parents’ negligence; that is, a consequence which, under the surrounding circumstances, might reasonably to have been foreseen to flow from the negligent act. Condel at 352.

The court finds that defendant Fred Gibbons and defendant Victoria Gibbons were aware that their son Brian Gibbons had a propensity for theft. In August 1991, Brian Gibbons was adjudicated delinquent for theft. (Depo. p. 38.) One year later, Brian Gibbons was adjudicated delinquent for theft and burglary. (Depo. p. 38). The court finds that while defendant Fred Gibbons and defendant Victoria Gibbons did not participate in the particular action in controversy, they knew of the habit of their child for theft. Condel at 353. The court finds that they were aware their son’s habit was bound to cause injury to others. Id. The instant action might reasonably have been foreseen to flow from the negligent act. Condel at 352.

Summary judgment is proper only in cases that are clear and free from doubt. Here, the court concludes that a controverted issue of fact is present and summary judgment is inappropriate. Redland at 138, 696 A.2d at 141. Accordingly, the motion for summary judgment of defendant Fred Gibbons and defendant Victoria Gibbons is denied.

ORDER

And now, December 21,1999, based upon the foregoing memorandum opinion, it is hereby ordered and decreed that the.motion for summary judgment of defendant Fred Gibbons and defendant Victoria Gibbons is denied.


author: SPICER, P.J.,

text:
    Cuomo v. Hikes

      C.P. of Adams County,
    no. 97-S-1016.

      Eugene R. Campbell, for plaintiff.

      Robert McQuaide, for defendant.
    April 10, 2000
   SPICER, P.J.,

Plaintiff, who is the personal representative of Frankie Lamar Moore, also known as Frankie Lamar, (decedent) filed a complaint on October 24, 1997 seeking to recover money owing on a bond that accompanied a purchase money mortgage. The complaint stated that defendants, who were then husband and wife, purchased real estate from decedent August 24, 1988 for $50,000. After paying $3,500, defendants executed a mortgage and bond to secure payment of the balance ($46,500). After decedent died November 9,1992, plaintiff was granted letters of administration by the register of wills of Baltimore City, Maryland, on November 24, 1993.

Although the complaint gave little indication that the action proceeded otherwise than on a written and signed instrument, it soon developed that plaintiff was unable to find the original bond. Thus, the action resolved into an attempt to recover on a lost bond. Tracy J. Hikes admitted signing the bond, and the case now involves only Craig W. Hikes’ contention that not only did he not sign, but that decedent expressly waived the requirement for a bond.

Jury trial occurred January 13, 2000. After the jury was selected, but before trial actually started, defendant moved to exclude portions of testimony of the settlement attorney:

“Q. May I just ask you at this point, with that particular mortgage bond, do you have a recollection as to whether or not it was signed by Mr. and Mrs. Hikes?
“A. Yes. Our practice in the office would have been to sign first the mortgage bond and then the mortgage. And I would have been the witness on the first line to Mr. Hikes, and my secretary would have been the witness on the second line to Tracy Hikes....
“Q. Also with respect to this mortgage bond, would you have then delivered that to anyone?
“A. Frankie Lamar left settlement with that among other papers the day of settlement. She had that and the settlement sheet, net proceeds check and that sort — copy of the amortization schedule. She took that with her.
“And although I don’t specifically recall, I probably would have put it in a Bigham and Raffensperger envelope as a matter of convenience for her....
“Q. So I see on the mortgage that you did not conform the signatures there so it was not your practice to do that I take it?
“A. That’s correct, on neither the mortgage nor the bond. And I would have signed as attorney for mortgagee on the back page.
“Q. Would it have been your practice ever to have used the mortgage that you’ve used here and not have an accompanying bond with it.
“A. No, I can’t recall — that wouldn’t have been the practice. There — I’m sure there have been some instances where a specific lender may have provided a separate form of note or something like that perhaps with individuals.” Bigham deposition, pp. 8, 9.

Cross-examination clearly indicated that the witness had no specific recollection of what occurred during settlement, and based his testimony on routine practice. However, it was clear that decedent was unrepresented, and that the settlement attorney prepared a mortgage bond and billed defendant for his work.

Defendant made payments on the bond amount until decedent’s death.

Defendants post verdict motions revive his argument that the testimony was inadmissible. Clearly, this contention cannot be sustained. Evidence of habit, routine and practice has always been admissible in our Commonwealth, and case law is now reflected in Pa.R.E. 406:

“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is rel evant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. ”

Thus, the settlement attorney’s testimony that he routinely required mortgagors to sign mortgage bonds was relevant to show that he required defendant to sign the purchase money mortgage bond in question. There is good reason for the rule. People who handle numerous transactions can hardly be faulted for forgetting details of those events. However, it is reasonable to expect they would remember exceptions to the routine.

Defendant reworks his objection as a challenge to the sufficiency of evidence. Actions may be maintained on lost instruments. 23 P.L.E. Lost Instruments §5; 4 Standard Pennsylvania Practice 2d §22:165. Plaintiff proved, albeit through testimony of the settlement attorney, the execution and delivery of the bond. Plaintiff testified that he made an exhaustive search for the original and found neither bond nor mortgage. A copy of the bond prepared by the settlement attorney was introduced to clearly show its terms and conditions. Defendant was given credit for all payments he claimed to have made.

This case presented no statute of fraud or estoppel issues. The jury was properly instructed as to plaintiff’s burden of proof. We find no reason to disturb its determination.

Accordingly, the court denies post verdict motions.

ORDER

And now, April 10, 2000, defendant’s post verdict motions are denied.

      . The mortgage copy attached to the complaint displayed signatures, the bond did not.

      . It therefore contrasts with the situation in Manley v. Manley, 238 Pa. Super. 296, 357 A.2d 641 (1976) where a plaintiff attempted to establish ownership of land through a lost deed.


author: RUFE, J., J.,

text:
    In re Appeal of Heritage Building Group
    C.P. of Bucks County,
    no. 98-4827-18-5.

      John A. VanLuvanee, for Heritage Building Group.

      George M. Bush and Craig A. Smith, for Buckingham Township.

      Robert J. Sugarman, for intervenors.
    May 2, 2000
   RUFE, J., J.,

On May 24,1995, appellant Heritage Building Group filed an application seeking a curative amendment to the zoning ordinance of Buckingham Township, Bucks County. After three hearings were held, Heritage filed an amended appeal, and an additional 27 public hearings were held, at which evidence was taken. A total of 2,966 pages of testimony was recorded, beginning July 31, 1995 and concluding March 30, 1998. Proposed findings of fact and conclusions of law were submitted by the township and by the applicant on April 27, 1998; and an opinion, comprehensive in the exploration of the evidence and the issues, and exhaustive to a length of 80 pages, was filed on June 15, 1998, following a unanimous vote by the board at a public meeting held that day denying Heritage’s request to amend the zoning ordinance to provide for an increased number of apartments.

Heritage filed its land use appeal to this court on July 14, 1998. Petitions to intervene were filed by, or on behalf of, various residents of the township, and on behalf of a township civic association. After a conference pursuant to Rule 27 of the local Bucks County Rules of Civil Procedure, we entered an order denying leave of intervenors to intervene, entered January 22, 1999, based on our belief that the interests of intervenors were adequately represented by the solicitor for the township. An appeal was perfected to the Pennsylvania Commonwealth Court, and we issued our opinion in support of our order of January 23, 1999 on March 17, 1999. The appeal to the Commonwealth Court was quashed as a result of a March 30,1999 stipulation by all counsel agreeing that intervenors be entitled to intervene, conditioned upon their proceeding with one representative. An order approving the stipulation was executed by this court on May 6, 1999, whereupon the Commonwealth Court remanded the case to this court, and relinquished jurisdiction on May 12, 1999.

Heritage next filed an application for a hearing to supplement the record to allow the introduction of evidence “with respect to the ‘affordability’ of the multifamily housing and apartment-type dwelling units which could theoretically be developed under the provisions of the zoning ordinance.” We held oral argument on July 9, 1999. Thereafter, on August 12,1999, we issued a memorandum opinion denying the motion of Heritage to hold hearings and supplement the existing record to receive evidence on the issue of affordability. In that opinion, we relied principally upon BAC Inc. v. Board of Supervisors of Millcreek Township, 534 Pa. 381, 633 A.2d 144 (1993), which disallowed “zoning schemes restricting or excluding certain uses of property, not classes of people.” (p. 174.)

Another motion for conference was filed by attorneys for Heritage to fix a schedule for the filing of briefs. That schedule was complied with as of February 28, 2000; briefs have been received, and we now address the ultimate issues.

Almost, five years have passed since the initial filing of the curative amendment by Heritage in which they originally alleged 13 reasons why the Buckingham Township Zoning Ordinance was invalid. Following two and one-half years of testimony, the challenges to the zoning ordinance invalidity were boiled down to three, succinctly stated in the zoning hearing board opinion as follows:

“(1) the ordinance is unconstitutional because it does not pro vide for the township’s ‘fair share’ of lands zoned for and available for development of multi-family dwellings;

“(2) the ordinance has the effect of excluding from the township a substantial number of families who might otherwise be anticipated to reside in the municipality who cannot afford to rent or purchase the housing which can be developed under the existing zoning ordinance criteria;

“(3) the provisions of the ordinance which regulate the development of apartment-type multi-family dwellings impose unreasonable restrictions on the development of apartments and render it economically not feasible to develop apartments.”

The standards by which we are guided are easily recited. The zoning ordinance is presumed to be valid and constitutional, and the burden is on the challenger to prove otherwise. BAG Inc. v. Board of Supervisors of Millcreek Township, supra. Zoning is a valid exercise of the police power of local government, exercised for the purpose of promoting public health, safety or welfare. A challenger has a heavy burden of proving the ordinance invalid. “The party challenging the constitutionality of certain zoning provisions must establish that they are arbitrary, unreasonable and unrelated to the public health, safety, morals and general welfare.” Boundary Drive Associates v. Shrewsbury Township Board of Supervisors, 507 Pa. 481, 489, 491 A.2d 86, 90 (1985).

Criteria for reviewing curative amendments were recited by Justice Nix in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 192-94, 382 A.2d 105, 110-11 (1977):

“The initial inquiry must focus upon whether the community in question is a logical area for development and population growth....
“Having determined that a particular community is in the path of urban-suburban growth, the present level of development within the particular community must be examined. Population density data and the percentage of total undeveloped land and the percentage available for the development of multi-family dwellings are factors highly relevant to this inquiry....
“Assuming that a community is situated in the path of population expansion and is not already highly developed, this court has, in the past, determined whether the challenged zoning scheme effected an exclusionary result or, alternatively, whether there was evidence of a “primary purpose” or exclusionary intent to zone out the natural growth of population.. ..
“Our primary concern now is centered upon an ordinance’s exclusionary impact. ...
“In analyzing the effect of a zoning ordinance, the extent of the exclusion, if any, must be considered. Is there total exclusion of multi-family dwellings, which we disapproved in Girsh Appeal, [437 Pa. 237,263 A.2d 395 (1970)], or is the exclusion partial? If the zoning exclusion is partial, obviously the question of the ordinance’s validity is more difficult to answer. In resolving this issue, once again the percentage of community land available under the zoning ordinance for multifamily dwellings becomes relevant. This percentage must be considered in light of current population growth pressure, within the community as well as the region, and in light of the total amount of undeveloped land in the community. Where the amount of land zoned as being available for multi-family dwellings is disproportionately small in relation to these latter factors, the ordinance will be held to be exclusionary.” (citations omitted) (footnote omitted) (emphasis in original)

On appeal to the court of common pleas, our standard of review is to determine whether the zoning hearing board committed an abuse of discretion or an error of law. Baker v. Chartiers Township Zoning Hearing Board, 611 A.2d, 1274 (Pa. Commw. 1996). A governing body abuses its discretion when its findings of fact are not supported by substantial evidence, which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

It will be readily seen that the Zoning Hearing Board of Buckingham Township assiduously followed the analytical path outlined for it by Justice Nix in Surrick. The board made findings of facts which accepted in part those contended for by applicant, and accepted in part those contended for by the township. Certain findings represented a sophisticated distillation of evidence submitted by both sides, resulting in a balanced evaluation of the facts addressed at the hearings. Notably, findings of fact nos. 63, 65 and 66, relating to the amount and percentage of land available for development constitute logical evaluation of conflicting evidence to arrive at a basis for a reasoned analysis of the opposing interpretations of the contending parties. Likewise findings of fact nos. 71, 72 and 73 mark the manner in which the zoning hearing board independently measured the acreage available for development. Additionally, the zoning hearing board supported with voluminous evidence, its conclusion that much of the current agricultural use of land in the township constitutes “developed,” rather than “undeveloped” land, in keeping with the stated purpose of the township’s comprehensive plan. See findings of fact nos. 28 to 49. The zoning hearing board opinion, after making the aforementioned findings of facts, then made the following observation:

“It is clear to this board that since Surrick the Commonwealth has expressed a strong governmental interest in the preservation of farm land. In the 1988 amendments to the Municipalities Planning Code the Pennsylvania Legislature codified that farm land preservation is an appropriate objective of zoning legislation. Sections 603 and 604 of the MPC [53 P.S. § 10603(b)(5), §10604(1) and (3)] mandate that ordinances, be designed to preserve a ‘present use’ of agricultural land....” (p. 59.)
“The Pennsylvania Supreme Court has also recognized the governmental interests in the preservation of farm land.” (Citing Boundary Drive Associates, supra, pp. 90-91.) (p. 60.)

So, too, the zoning hearing board carefully analyzed the applicant’s contention that Buckingham’s zoning ordinance effects a “de facto” exclusion of Buckingham’s fair share of “a reasonable range of multi-family dwelling in various arrangements.” It rationally concluded that (1) the amount of “undeveloped” land in Buckingham was less than alleged by applicant; (2) that applicant erroneously excluded lands in AG-2, UC-3 and R-7 districts which are available for multi-family development; and (3) given the higher population density available for multi-family dwellings on the land available, a much greater percentage of available population growth is available as multi-family development than as alleged by applicant. As we review the evidence and the zoning hearing board opinion, we are unable to say the board’s decision is not based upon substantial evidence. Although the zoning hearing board, the fact-finder, has the power to reject even uncontradicted testimony if the board finds the testimony to be lacking in credibility, cf. Heritage Building Group Inc. v. Bedminster Township Board of Supervisors, 742 A.2d 708, 710 (Pa. Commw. 1999), we conclude instead that each of the findings of fact relied upon by the zoning hearing board in formulating its conclusions of law was based upon substantial evidence contained in the lengthy record.

Thus, we deny the appeal on the basis of the opinion of the zoning hearing board and enter the attached order.

ORDER

And now, May 2, 2000, the land use appeal of applicant, Heritage Building Group Inc., from the decision on June 15,1998 of the Buckingham Township Zoning Hearing Board is denied and dismissed. Said decision of the zoning hearing board is affirmed.


author: LOUGHRAN, P.J.,

text:
    Heasley v. Fanelli

      C.P. of Westmoreland County,
    no. 3755 of 1994.

      Mike R. Rubinoff, for plaintiff.

      Carmen A. Martucci, for defendants.
    July 7, 2000
   LOUGHRAN, P.J.,

On May 22, 1992, the plaintiff was a patron at Denny’s Restaurant in Hempfield Township, Westmoreland County, when he was assaulted by the defendant, Frank A. Fanelli, and sustained injury. The plaintiff, in his complaint, avers that Denny’s had notice of crimes which had occurred on the property and in the vicinity of the property, creating a risk of danger to the general public, and that Denny’s thus had a duty to protect foreseeable victims against unlawful and criminal acts of third parties on their property. The plaintiff does not allege any specific facts of prior incidents; rather his negligence theory against Denny’s is premised on the following averments in the complaint:

“Denny’s had a duty to ascertain that the premises in question, including the parking lot, were safe for business invitees such as the plaintiff.” (Complaint, paragraph 20.)
“Denny’s had ample notice of the alleged dangerous condition of its premises ‘as there had been numerous incidents of fighting and other disruptions at the facility requiring the presence of members of the Pennsylvania State Police to handle the problems.’ ” (Complaint, paragraph 21.)

Denny’s knew through its employees, agents and servants of the dangerous condition of the premises in question and “knew that there was a likelihood of conduct on the part of third parties generally which is apt to endanger the safety of patrons/business invitees such as the plaintiff . . . (and that Denny’s) had a duty to take precautions to protect business invitees against such conduct.” (Complaint, paragraph 22.)

“Given the previous instances of disruptions and criminal activity at [Denny’s] . . . Denny’s could reasonably have expected criminal activity at that site.” (Complaint, paragraph 23); and

“Denny’s had a duty to give a warning adequate to enable business invitees such as the plaintiff to avoid harm or otherwise to protect business invitees from the harm by providing security guards and by taking other measures to protect business invitees.” (Complaint, paragraph 24.)

Denny’s answered the allegations of plaintiff’s complaint by filing an answer and new matter denying the allegations of plaintiff’s complaint in pertinent part and asserting as affirmative defenses, the plaintiff’s own conduct and/or contributory or comparative negligence and/ or assumption of the risk. Furthermore, Denny’s set forth as an affirmative defense the fact that any injuries sustained by the plaintiff were caused solely by intentional and/or criminal acts of parties other than Denny’s for which Denny’s is not liable; i.e.: Frank A. Fanelli, and filed a cross-claim against Fanelli pursuant to Pa.R.C.P. 2252(d).

The plaintiff’s deposition has been taken and the parties have exchanged written discovery via interrogatories and requests for production of documents. Additionally, the transcripts of the trial testimony relative to the criminal prosecution of Frank A. Fanelli have been obtained for its relevancy into issues of contributory or comparative negligence and/or assumption of the risk. Denny’s has moved for summary judgment contending that the evidence clearly establishes that no genuine issue of material fact remains for a trial and as such, it is entitled to summary judgment pursuant to Pa.R.C.P. 1035.

Summary judgment should not be entered unless a case is free from doubt; the moving party must prove that there is no genuine issue of material fact to be tried and that it is entitled to judgment as a matter of law and, moreover, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Richland Mall Corp. v. Kasco Construction Co., 337 Pa. Super. 204,486 A.2d 978 (1984).

When asserting liability against an owner or possessor for damages caused by unlawful or criminal activity by third parties upon the premises, plaintiffs bear the burden of showing that the defendants had notice, either actual or constructive, of prior acts committed by third persons which might cause injuries to patrons. Moran v. Valley Forge Drive-In Theater, 431 Pa. 432, 437, 246 A.2d 875, 879 (1968); Murphy v. Penn Fruit Co., 274 Pa. Super. 427, 431, 418 A.2d 480, 483 (1980). An owner or possessor of land is under no duty to exercise any care until he knows or has reason to know that unlawful acts of third persons are occurring or are about to occur. Moran v. Valley Forge Drive-In Theater, supra. An owner is not an insurer of a patron’s safety; rather, a possessor of land may only be responsible for those acts of which it knew or, based on its experience, could reasonably expect. Prather v. H-K Corp., 282 Pa. Super. 556, 423 A.2d 385 (1980).

It would appear that plaintiff relies upon statements from a state trooper that they always had to go there and statements by a manager of Denny’s that they had problems with late night fights and had security guards, but for some reason Denny’s let them go.

Giving all the benefit to the non-moving party, as this court is required to do, from the pleadings and the deposition a question of fact arises as to Denny’s knowledge of late night problems that may, in the view of the fact-finder, create a duty to provide security for patrons. Although, the evidence isn’t all that impressive as presented, it is sufficient to create a question of fact that prevents this court from granting summary judgment.

Accordingly, defendants’ motion will be denied.

ORDER

And now, to wit, July 7, 2000, after review and careful consideration of the within matter, it is hereby ordered, adjudged and decreed that the defendant Denny’s Restaurant’s motion for summary judgment is denied.


author: HERRON, J.,

text:
    Wolfington v. Wolfington Body Co.

      Gilda L. Kramer, for plaintiff.

      John J. Higson, for defendant.
    August 8, 2000
   HERRON, J.,

This opinion discusses the accountant-client privilege in conjunction with and support of this court’s ruling at the discovery hearing held on July 31, 2000, in which this court found that certain documents should be produced.

The underlying dispute concerns the value of the plaintiff’s shares of the defendant companies, shares which the companies will buy back pursuant to buy-sell agreements, and the alleged mismanagement of the companies which could have affected the value of these shares.

At the aforementioned discovery hearing this court was confronted with plaintiff’s motion to compel production of accountants’ documents and compliance with a subpoena directed to the defendants’ accountants, along with defendants’ memorandum of law in opposition thereto. The issue presented was whether the accountant-client privilege attached to the subpoenaed records such that it barred production of these records.

For the reasons which follow, this court concluded that the accountant-client privilege did not attach to the subpoenaed records directed to the defendants’ accountants, but this court limited the plaintiff’s requests under the subpoena to those documents in the accountants’ possession and those which pertain to the preparation of financial statements.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Patricia C. Wolfington, executor of the estate of her late husband, Robert Wolfington, succeeded to her husband’s interests as shareholder of approximately 20 percent of the defendant companies, at the time of her husband’s death on November 17, 1998. The defendant companies, Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc. and Eagle Wolfington Leasing Corporation, are three interrelated family-owned companies with no more than six shareholders.

Pursuant to buy-sell agreements that were executed in 1968, the shareholders (including Robert Wolfington) agreed that the corporation(s) would buy back the shares of stock at the time of the respective stockholder’s death. The agreements provided in pertinent part:

“(3) The price to be paid for the said stock shall be the book value of the said stock as of December 31 preceding the dates of their respective demise.
“(4) The payment of the stock to be sold and purchased is to be agreed upon as soon after the death of the stockholder as conveniently may be and not to exceed a period of 10 months from the date of death. The purchase price agreed upon shall be paid on an installment basis beginning two years after date of death, in monthly installments over a period of 15 years from that date with interest computed annually ....
“(5) This agreement shall bind and obligate and shall enure to the benefit of the heirs, executors and administrators of the respective parties hereto.” PI. exhibits D and E, attached to motion for mandamus.

Pursuant to these agreements, defendants approached the plaintiff to agree on a value for her shares of the defendants’ companies. In turn, plaintiff sought to independently calculate the value of her shares and had allegedly made repeated attempts to obtain various documents in order to assess the value and to determine whether the companies were properly managed, but she was unsuccessful.

Then, on February 29, 2000, plaintiff filed an action in mandamus to compel defendants to permit her to inspect certain documents of the defendant companies pursuant to 15 Pa.C.S. § 1508. On March 24,2000, plaintiff filed her original motion for peremptory judgment of mandamus. Defendants filed their answer on April 24, 2000. On May 1, 2000 this court held a discovery hearing on this motion. After this hearing, this court entered a stipulated order dated May 11, 2000 which compelled the defendants to produce various documents and information that the plaintiff had requested. See stipulated order, attached at pi. exhibit A to motion to compel. In the last paragraph of the stipulated order, the court noted that it would “defer, at this time, ruling of plaintiff’s request number 16, for all of the companies’ accountants’ work papers from 1994 to present.” Id. at 3.

Defendants have produced many documents in compliance with this court’s order, but have still not provided the accountants’ work papers or the documents in the accountants’ possession, insisting that the documents are protected by the accountant-client privilege and would duplicate information that defendants had already provided. The defendants’ accountants are Narcisi & Co. On June 5, 2000, plaintiff served a subpoena on Narcisi & Co., as custodian of the requested records, in order to compel them to produce a variety of documents. See pi. exhibit D and def. exhibit C, respectively.

By letter dated June 7, 2000, counsel for defendants advised Narcisi & Co. that the subpoenaed documents are protected by the accountant-client privilege and instructed them not to provide these documents. See pi. exhibit E. On the same date, Narcisi & Co. sent a letter to plaintiff’s counsel, advising that they cannot produce the documents due to the defendants’ assertion of privilege and that the subpoena is overbroad. See pi. exhibit F.

On July 31, 2000, a discovery hearing was held in which plaintiff presented her motion to compel and defendants presented her memorandum in opposition thereto. Upon review of the subpoena and the parties’ respective memoranda, this court made the following rulings:

“(1) The requests for records contained in the subpoena’s paragraphs (A), (B) and (J), respectively are Denied where plaintiff did not sufficiently articulate her entitlement to these requests and/or how these documents affected the value of her shares.
“Paragraph A requested the following:
“All documents which relate, record or describe any and all engagements undertaken by Narcisi & Co. for, on behalf of, or at the request or direction of Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/ or shareholders.
“Paragraph B requested the following:
“All documents which relate, record or describe the nature of services performed by Narcisi & Co. for, on behalf of, or at the request or direction of Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/ or shareholders.
“and paragraph J requested the following:
“All documents relating to any U.S. government contracts or solicitations received by Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders including compliance audits, cost and price analyses, indirect cost analyses, overhead pool analyses, preaward correspondence and analyses and post award correspondence and analyses.
“(2) Paragraphs (C) and (F) of the subpoena are Denied because the accountants do not have these documents.
“Paragraph C requested the following:
“All documents which relate, record or describe any communications, whether oral or written, formal or informal, involving Narcisi & Co. for, on behalf of, or at the request or direction of Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders,
“and paragraph F requested the following:
“All documents which relate to, record or describe any management consulting services or advisory services provided to Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders including engagement letters, planning memoranda, working papers, adjusting entries, confirmation requests, client representation letters, attorney letters, financial statements, draft reports, management letters, file notes, internal review checklists, and reports (draft or final) issued in connection with any services performed for, on behalf of, or at the request or direction of Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders.
“(3) Paragraph D of the subpoena is Granted in part and Denied in part. Paragraph D requested the following:
“All internal memoranda, work papers or working papers, bulk files, permanent files, schedules, spreadsheets, financial statements, books, business records, financial records and audit papers which relate or refer to Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders.”

The emphasized wording in the above-listed paragraph represents that portion of plaintiff’s request which this court denied.

“(4) Paragraph E of the subpoena is Granted in part and Denied and/or Modified in part. The original paragraph E requested the following:

“All documents which relate to, record or describe the compilation, review, audit or preparation of financial statements of/for Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders, including engagement letters, planning memoranda, internal control studies, working papers, trial balances, adjusting entries, confirmation requests, client representation letters, attorney letters, financial statements, draft reports, management letters, file notes, correspondence and internal review checklists.”

The boldfaced wording represents that portion of plaintiff’s request which this court denied and the italicized wording represents that portion which this court modified. Paragraph E, as modified by the court, is to read as follows:

“All documents which relate to, record or describe title compilation, review, audit or preparation of financial statements of/for Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders, including planning memoranda for preparation of financial statements, internal control studies related to financial statements, trial balances, adjusting entries, financial statements, draft financial reports, management letters referring to financial statements to or from management, correspondence related to the preparation of financial statements and internal review checklists for the preparation of financial statements.
“(5) The requests in paragraphs (G) and (H) of the subpoena were withdrawn without prejudice to raise later.
“Paragraph G requested the following:
“Documents which relate or refer to Narcisi & Co. policies regarding the retention of audit working paper files, correspondence, management consulting working paper files and advisory services files.
“Paragraph H requested the following:
“All documents which relate to, record or otherwise describe the compensation received by Narcisi & Co. from Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders for services performed on behalf of any party.
“(6) Paragraph (I) of the subpoena was Granted but limited to IRS audits only and without prejudice to raise additional requests later.
“Paragraph I requested the following:
“All documents relating to audits, inquiries or other procedures performed by any agency or representative of the U.S. government (i.eDCAA, IRS, SEC, GAO, EPA) which relate to the operations or activities of Wolfington Body Company Inc., Wolfington Automotive Leasing Company Inc., or Eagle Wolfington Leasing Corporation, their subsidiaries, affiliates, agents, employees and/or shareholders.”

The parties agreed to draft a stipulated confidentiality agreement to cover any documents provided, pursuant to this court’s ruling.

DISCUSSION

In support of their motion to compel production of the accountants’ documents, plaintiff contended (1) that the accountant-client privilege is not applicable because the request of these documents was made pursuant to 15 Pa.C.S. §1508 and plaintiff can be considered the “client” as a substantial shareholder; (2) that defendants have waived the privilege by demanding that plaintiff sell back her shares based on values in the accountants’ summary financial statements; or (3) that there is good cause not to invoke the privilege. See motion to compel at 6-11. In turn, defendants asserted (1) that only the current management has the right to waive the accountant-client privilege and they have not done so; (2) that the plaintiff is merely on a “fishing expedition” and has not shown good cause to waive the privilege; and (3) that plaintiff’s request is overbroad and cumulative. See def. memorandum at 9-12.

This court determined that the accountant-client privilege did not apply to the subpoenaed records and that plaintiff demonstrated good cause not to invoke the privilege in the circumstances of the present case.

Under the C.P.A. Law, codified at 63 P.S. §1 et seq., this court determined that the plaintiff has a basis for the relief she seeks. Specifically, section 9.11 of 63 P.S. requires the accountant to furnish his client or former client, upon request, “all statements, records, schedules, working papers and memoranda prepared by an [accountant],” as well as copies of his working papers that “would ordinarily constitute part of the client’s records and are not otherwise available to the client” and “any accounting or other records belonging to, or obtained from or on behalf of, the client that the [accountant] removed from client’s premises or received for the client’s account.” Id. at section 9.11. At first glance, it appears that some of the information sought in the plaintiff’s subpoena would fit under this provision and must be provided to the client or former client upon his request. Nonetheless, the statute does not define who is the “client” for purposes of the privilege or for determining who may waive the privilege.

Section 9.11a of 63 P.S., which creates by statute the accountant-client privilege, sheds some light on this issue. It provides in pertinent part that:

“Except by permission of the client engaging him or the heirs, successors or personal representatives of a client, a licensee or a person employed by a licensee shall not be required to, and shall not voluntarily, disclose or divulge information of which he may have become possessed unless the sharing of confidential information is within the peer review process____” Id. (emphasis added)

The statute also explicitly excludes “information required to be disclosed by the standards of the profession in reporting on the examination of financial statements, or in making disclosures in a court of law or in disciplinary investigations or proceedings when the professional services of the certified public accountant, public accountant or firm are at issue in an action ....” Id.

The accountant-client privilege in Pennsylvania did not exist at common law and there are few Pennsylvania cases which address it. As stated by the Pennsylvania Superior Court, “[t]he relationship between an accountant and his client has been held to be one of confidentiality...; however, the statute makes only a limited change in the common law, and it does not extend the common-law attorney-client privilege to the accountant-client relationships.” Agra Enterprises Inc. v. Brunozzi, 302 Pa. Super. 166, 171, 448 A.2d 579, 582 (1982) (citations omitted) (holding that former accountant did not betray type of confidence protected by the accountant-client privilege). See also, Bowman, 358 F.2d at 423 (stating that “[sjince the statute is in derogation of the common law which does not accord an accountant-client privilege, the privilege which it accords must be strictly construed.”). Further, the right to grant or withhold permission to speak, lies with the client, not the accountant. Id. at 171 n. 1,448 A.2dat582 n.l.

In discussing the privilege, the federal courts have given it a narrow interpretation and have refused to apply it in certain situations. For example, in Detroit Coke Corporation v. NKK Chemical USA Inc., 1993 WL 367060 at *1 (W.D.N.Y.), the court granted the defendant’s motion for an order directing plaintiff’s accountants to comply with a subpoena. The Detroit court stated that “[t]he accountant-client privilege is designed to encourage full divulgence to the accountant; it should not be used offensively to prevent a sued party’s access to relevant and potentially vital information in challenging claims made against such party by the accountant’s client.” Id. at *2. In Emtec Inc. v. Condor Technology Solutions Inc, 1998 WL 242603 at **2-3 (E.D.Pa.), the court held that Pennsylvania’s accountant-client privilege did not bar discovery of documents from the accountant’s audit of plaintiff where the information sought was relevant to defendants’ affirmative defenses in a breach of contract case. The court reasoned that “the client may waive the accountant-client privilege through conduct inconsistent with its assertion.” Id. at *2. Likewise, in Samson Refining Co. v. Bache Halsey Stuart Shields Inc., 92F.R.D. 440,441 (E.D.Pa. 1981), the court stated the following:

“When the client commences a lawsuit the allegations of which make relevant information and knowledge in the possession of the accountant and when the information or knowledge would be discoverable from the client if it was in his possession, then the client should be deemed to have waived the privilege by initiating the suit. The privilege could not have been intended to cloak material that would be discoverable from the client if it was in the client’s possession.” Id. at 441. See also, In re Oxford Royal Mushroom Products Inc., 41 B.R. 863,864-65 (E.D.Pa. 1984) (holding that trustee was entitled to financial records to establish the size of the debtor’s bankruptcy estate and that Pennsylvania’s accountant-client privilege did not apply in bankruptcy).

Moreover, it is well-settled that stockholders are the owners of the company’s assets, and, therefore have a right to examine the corporate books, records, papers and accounts in order to determine if any alleged mismanagement occurred or to set a proper valuation on the shares of stock. Taylor v. Eden Cemetery Co., 337 Pa. 203, 208-209,10 A.2d 573,575-76 (1940) (holding that estate’s trustee has standing to bring mandamus action to examine corporate books in order to assess the value of his interest and to determine if the corporation is being mismanaged); Kuhbach v. Irving Cut Glass Co., 220 Pa. 427,433,69 A. 981,983-84 (1908) (stockholder may examine corporate books to see if corporation is being mismanaged); Zerbey v. J.H. Zerbey Newspapers Inc., 385 Pa. Super. 109, 119-20, 560 A.2d 191, 196 (1989) (same). See also, Friedman v. Altoona Pipe and Steel Supply Co. Inc., 460 F.2d 1212, 1213-14 (3d Cir. 1972) (holding that plaintiff has stated a proper purpose to inspect corporate books in order to determine the value of her shares or see if mismanagement occurred, and summaries of financial information are not sufficient under the Pennsylvania statute).

Here, under the plain meaning of section 9.11a of the C.P.A. Law, the plaintiff should qualify as the “heirs, successors or personal representatives of a client,” and thus, would be entitled to waive the privilege for purposes of this mandamus action. Plaintiff argued that Robert Wolfington, as an officer and director of each company until his death, was authorized to act on its behalf, and can be considered the “client” for purposes of the privilege with regards to the information provided to the accountants through 1998. PI. motion to compel at 7. In turn, the defendants asserted that only the current management of the corporation, as those authorized to act on its behalf, hold the power to waive the privilege. Def. memorandum at 9. They relied on Maleski v. Corporate Life Insurance Co., 163 Pa. Commw. 36,641 A.2d 1 (1994). That case addressed the attorney-client privilege and held that the statutory liquidator, as the management successor to the corporation, may waive the privilege with respect to confidential pre-liquidation communications. Id. at 43, 641 A.2d at 4.

This court is not persuaded by defendants’ argument since the accountant-client privilege is not as broad as the attorney-client privilege. See Agra, 302 Pa. Super, at 171, 448 A.2d at 582. Further, plaintiff, as the estate of Robert Wolfington, steps into his shoes and he would have had access to the information sought now by the plaintiff. At the discovery hearing on May 1, 2000, defendants conceded that the plaintiff was considered a “shareholder” for the purpose of the motion of mandamus. Plaintiff seeks various financial records from the accountants in order to determine the true value of her shares. The accountant work papers, as related to the preparation of financial statements, could have direct bearing on determining the book value of the stock, which is the key issue in dispute. Therefore, despite the fact that the plaintiff initiated the present litigation, the accountant-client privilege should not now be invoked to bar access to information which is relevant and vital to the plaintiff’s mandamus action and to which she is entitled.

In addition, this court agrees with the plaintiff that the seminal case of Gamer v. Wolfinbarger, 430 F.2d 1093 (5 th Cir. 1970) has relevance in deciding the applicability of the privilege. In that case, Court of Appeals for the Fifth Circuit held that in a suit by shareholders, alleging corporate mismanagement, the attorney-client privilege is “subject to the right of stockholders to show cause why it should not be invoked in the particular instance.” 430 F.2d at 1103-1104. In determining whether the privilege applies, the Garner court listed the following factors to consider: “(1) the number of shareholders and the percentage of stock they represent; (2) the bona tides of the shareholders; (3) the nature of the shareholders’ claim and whether it is obviously colorable; (4) the apparent necessity or desirability of the shareholders having the information and the availability of it from other sources; (5) whether, if the shareholders’ claim is of wrongful action of the corporation; (6) whether the communication related to past or to prospective actions; (7) whether the communication is of advice concerning the litigation itself; (8) the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; and (9) the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest from independent reasons.” Id. at 1104.

This standard has been adopted in the context of the accountant-client privilege. Neusteter v. The District Court, 675 P.2d 1, 5-7 (Colo. 1984) (holding that accountant-client privilege did not apply where the minority shareholders of two companies alleged corporate mismanagement of assets and the dispute is between the control group and minority group in a closely held corporation). See also, Fochetta v. Schlackman, 685 N.Y.S.2d 22,257 A.D.2d 546 (1999) (holding that attorney-client privilege did not apply to deny plaintiff access to materials essential to prove plaintiff’s claims in a disputed stock surrender case in which plaintiff is a 50 percent shareholder of closely held corporations).

Applying the Gamer factors here, there is good cause not to invoke the accountant-client privilege. It is undisputed that the defendant companies are closely held corporations and have only six shareholders. The plaintiff owns approximately 20 percent of each company. Plaintiff has alleged that there may have been “serious mismanagement, appropriation of corporate assets or funds for personal use, and diversion of corporate opportunities by Richard Wolfington and others from the companies, which would affect the value of Robert Wolfington’s shares.” Motion for mandamus at ¶15. Further, plaintiff has filed a shareholder derivative action, based upon alleged breaches of fiduciary duties and mismanagement. As noted above, the value of the companies is a key issue in the present dispute and the requested accountant work papers could be necessary to better assess the true value. In addition, the parties agreed to draft a stipulated confidentiality agreement, which could inoculate any risk of revelation of confidential and/or secret information from the general public.

Nonetheless, this court limited the plaintiff’s requests for the accountants’ work papers to the extent that specific documents were described and to those which related to the preparation of financial statements and to IRS audits. This court denied any requests for documents that were ambiguous, or that the accountants did not have. By doing so, this court tailored any alleged “fishing” expedition on the plaintiff’s part while still granting her access to information which should not be barred by the accountant-client privilege.

CONCLUSION

For the reasons set forth above, this court concluded that the accountant-client privilege did not attach to the subpoenaed records directed to the defendants’ accountants, Narcisi & Co. In accordance with this rationale, it granted some of the plaintiff’s requests, but modified those requests in order to reach the most pertinent information.

ORDER

And now, August 8, 2000, upon consideration of plaintiff’s motion to compel production of accountants’ documents and compliance with subpoena, defendants’ response thereto, after a discovery hearing held on July 31, 2000, in accordance with the record findings made at that hearing, and in conjunction with the memorandum opinion being filed contemporaneously with this order, it is hereby ordered that the plaintiff’s motion is granted in part, modified in part, and denied in part.

      . The documents requested included the following: articles of incorporation, bylaws, corporate minutes from 1965 to present, share registers, full and complete financial statements from 1994 to present, W-2 forms and 1099 forms from 1994 to present, federal and state tax returns, life insurance policies for officers and shareholders, fixed asset and depreciation schedules from 1994 to present, executive employment and compensation agreements from 1994 to present, payroll records from 1994 to present, all shareholder agreements, all of the company’s accountants’ work papers from 1994 to present, and documents removed from her husband’s office. See exhibit A, attached to complaint and motion for mandamus.

      . Plaintiff has also commenced a shareholder derivative action involving the same parties, which is docketed at February term 2000, no. 3421, and has asserted related direct claims and breach of contract claims in a consolidated action, which is docketed at February term 2000, no. 3419.

      . The stipulated order is also attached at def. exhibit A. Unless otherwise designated, the exhibits referenced to in this opinion are those exhibits which are attached to the plaintiff’s motion to compel and/or the defendants’ memorandum in opposition thereto.

      . An earlier version of this statute explicitly excluded “the examination of audit of or report on any financial statements, books, records or accounts, which [the accountant] may be engaged to make or requested by a prospective client to discuss.” United States v. Bowman, 358 F.2d 421, 422-23 (3d Cir. 1966) (holding that accountant was not entitled to refuse to comply with summons specifically requesting information excluded from the privilege statute).