author: HORN, J.,

text:
    Brant v. Turnamian

      Martin S. Hohenadel and William A. AtleeJr., for plaintiff.

      Michael D. Pipa and James W. Evans, for defendant York Hospital.
    January 14, 1991
   HORN, J.,

This matter is before the court on motion of defendant York Hospital to compel pursuant to Pa.R.C.P. 4003.4.

This is a medical malpractice action arising out of the care and treatment allegedly provided by the defendants during the birth of Ryan Allen Seth Beatty on March 26, 1986. Anna M. Johnson was present during the birth.

Defendant, York Hospital learned during discovery that Loura Oster, a paralegal employed by plaintiff’s counsel, recorded statements made to her by Ms. Johnson.

This action was commenced by a writ of summons and the complaint was filed on October 20,1988. All parties have actively pursued discovery, during which plaintiff’s counsel spoke with Anna Johnson, a friend of plaintiff, Debra Brant, who accompanied plaintiff to York Hospital the night of the baby’s birth.

Defendant alleges that plaintiff’s counsel met with Ms. Johnson on two occasions, November 7 and November 28, 1989. Defendant did not depose Ms. Johnson until April 12, 1990, when defendant learned that Anna Johnson had previously spoken to a paralegal from the office of plaintiff’s counsel. Defendant York Hospital subsequently filed a motion to compel the statements on June 1, 1990. Plaintiff has filed a brief in opposition and denies the existence of any contemporaneous notes.

Defendant seeks to compel the production of the statements of Anna M. Johnson, a witness. These statements were taken by Loura Oster, a paralegal employed by plaintiff’s counsel. Plaintiff alleges that the statements are essentially notes that were handwritten, neither adopted by nor signed by Ms. Johnson at the interview.

The issue before this court is whether a party should be permitted to compel counsel of an opposing party in civil litigation to produce handwritten notes which his paralegal made during an interview with a potential witness where the notes are not a verbatim recital of an oral statement and are neither adopted nor approved by the witness. (Plaintiff’s brief at 2.).

We refuse defendant’s motion to compel, pursuant to Pa.R.C.P. 4003.4, for the following reasons.

Under the 1978 revision of the Discovery Rules, the committee rescinded and eliminated Rule 4011(d). This subdivision precluded discovery of information or other things made or secured by any person or party in anticipation of litigation or in preparation for trial, other than relating to the identity or whereabouts of a witness. See Explanatory Note, Rule 4003.3. “The discovery of trial preparation material is now allowable in accordance with Pa.R.C.P. 4003.3 through 4003.5.” McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 455 n.7, 450 A.2d 991, 1000 n.7 (1982).

Trial preparation material, including statements of witnesses whether taken by a lawyer or investigator, is fully discoverable, except that the mental impressions of a party’s attorney or his conclusions, opinions, memoranda, notes or summaries, legal research, or legal theories are protected from discovery. See Explanatory Note to Pa. R.C.P. 4003.3.

Pennsylvania Rules differ from the Federal Discovery Rules in two respects. First, a moving party must show a substantial need for the materials and be unable without undue hardship to obtain a substantial equivalent by other means. Second, the work-product protection of Rule 4003.3 distinguishes between that afforded the attorney and that afforded the party’s representative, whereas under the Federal Rule, equal footing is given.

“The [Procedural Rules] Committee viewed the work-product privilege enunciated ... in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed 451 (1947), as stating the special rule applicable to lawyers which need not necessarily be the same as that applied to other representatives . . . Under [Rule 4003.3,] a lawyer’s notes or memoranda of an oral interview of a witness, who signs no written statement, are protected, but the same notes or memoranda made by an insurance investigator will not be protected. A signed statement of the witness is, of course, always discoverable, no matter who took it or where it is filed.” Pa.R.C.P. 4003.3, Explanatory Note — 1978. See also, Standard Pa. Practice, 10 Goodrich Amram 2d, Rule 4003.3: 3. And see, Tate v. PSFS, 1 D.&C. 4th 131 (1987); Breem v. Cappola, 132 Pitts. Leg. J. 390 (1984).

The first question to be answered is whether a paralegal employed by an attorney possesses the same privilege as an attorney. We hold that communications made to a paralegal as an agent of the attorney or to his secretary are confidential and privileged. She will be treated as same as when conferring the work-product privilege to the lawyer.

Support for this position is found in legal treatises:

“When an attorney thus engaged actually hires and arranges to pay his own selected agent to do the desired preparatory work, the product of that work becomes a part of the hiring attorney’s work product, just as if the work had been done by the attorney in person or by an employee of his office.” 35 ALR 3d 412, 429.

The second question to be answered is whether these notes are in fact protected under the work-product privilege. Defendant contends that they do not wish to compel anything but facts that may help them in their preparation for a defense in trial. Plaintiff contends that the notes are merely that, notations of a paralegal containing mental impressions, etc.

It is apparent that the basic thrust of Hickman, supra, and its progeny is that documents containing the work product of an attorney or his agents which contain the attorney’s thoughts, impressions, views, strategy, conclusions and other similar information produced by the attorney in anticipation of litigation is to be protected. See e.g., Xerox Corp. v. IBM Corp., 64 F.R.D. 367, 381 (1974).

Therefore, this court determines that Loura Oster, paralegal, is granted the same work-product privilege as the attorney who hired her relating to any mental impression or conclusions pertaining to this particular litigation, etc. In addition, this court rejects defendant’s contention that the witness’ faded memory establishes good cause. Once it was served with a complaint, defendant was free to begin its own discovery, and any loss of memory occurring after that date was due to its own inaction.

This court does not find any evidence that the notes of the paralegal contain any facts relevant to the pending trial, nor did defendant provide any such evidence. In fact, attached to plaintiff’s brief in opposition of defendant’s motion to compel is a copy of the section of the deposition transcript of Anna M. Johnson involving her discussions with the plaintiff counsel’s paralegal. After reading the transcript, it is clear to the court that both parties have engaged in full discovery and plaintiff has submitted all relevant materials to defendant. Defendant’s motion to compel plaintiff to produce the notes of Loura Oster, the plaintiff’s paralegal, is refused.


source: Caselaw Access Project

author: SCOTT, J.,

license: Public Domain

text:
    PennDOT v. Foster

      Thomas P. Wile, assistant counsel-in-charge, for the Commonwealth.

      William Scott, for defendant.
    January 23, 1991
   SCOTT, J.,

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, appeals our order of September 25, 1990 reversing a one-year suspension of Francis L. Foster’s driving privileges imposed by the department. The department imposed the one-year suspension of appellee’s motor vehicle operator’s license for his refusal to take a breathalyzer test as required in section 1547(b) of the Motor Vehicle Code, 75 Pa.C.S. §1547(b). We reversed the suspension because we determined that the appellee did not make a knowing and conscious refusal.

It is undisputed that appellee was operating an automobile which struck a tree on Route 413 in Buckingham Township in Bucks County on the evening of May 20, 1990. The Buckingham Township police officer who investigated the accident noticed a strong odor of alcohol on appellee’s breath and conducted a field sobriety test. When appellee could not pass the test, the officer advised him of the implied consent law and placed him under arrest for driving under the influence of alcohol. The officer then transported appellee to the police station. At some point, the officer advised appellee that he would be asked to take a breathalyzer test.

Upon arrival at the police station appellee was instructed to sit down next to the table where the breathalyzer machine was located. The officer then began to complete the form used by Buckingham Township to document the Miranda and implied consent warnings. The form is designed such that the Miranda warnings are on the top half of the form and the implied consent law warnings are on the bottom of the form. At the end of the Miranda warnings there is the question: Do you understand everything that has been read and explained to you at this time? There is a space provided to indicate that the answer is either yes or no. Following the Miranda warnings is the implied consent warning, and at the bottom of the form there is a space provided for the officer’s signature, the defendant’s signature (or refusal to sign) and, if needed, witness signatures. There is also space to document the date and time.

The officer testified that he read the implied consent warning portion to appellee and then put the form down in front of him indicating to him what he had just read. Appellee testified that the officer read the entire form to him. For purposes of this appeal, it is immaterial whether appellee saw the form or it was read to him. Appellee asked to telephone his wife in order for his wife to contact his lawyer and was told he could do so after he took the test. Thereafter, the appellee “officially” refused to take the test and his refusal was “noted” on the form.

The Commonwealth makes the following aver-ments of error:

(1) The Commonwealth met its burden of proof under Ostrander v. Department of Transportation, Bureau of Driver Licensing, 116 Pa. Commw. 243, 541 A.2d 441 (1988), to show that licensee Foster refused a chemical test and that his operating privilege was properly suspended for one year pursuant to 75 Pa.C.S. §1547.

(2) Licensee Foster failed to meet his burden of proving that he was unable to make a knowing and conscious decision with regard to chemical testing due to his alleged confusion over the applicability of his right to counsel to chemical testing under the implied consent law based upon the Pennsylvania Supreme Court decision in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989).

(3) The Commonwealth satisfied its burden of showing that the police officer adequately warned licensee Foster that his right to counsel did not apply to chemical testing under the implied consent law and thus satisfied the O’Connell requirements.

(4) Additionally, the Commonwealth reserves the right to raise any issue raised in the trial court’s opinion.

The case at bar is governed by O’Connell. In O’Connell the Supreme Court stated that in license suspension cases under section 1547(b) of the Vehicle Code, the Commonwealth must establish that the driver (1) was arrested for driving under the influence of alcohol, (2) was asked to submit to a breathalyzer test, (3) refused to do so, and (4) was specifically warned that a refusal would result in the revocation of his driver’s license. Once the Commonwealth meets this burden, the responsibility shifts to the driver to prove that he was not capable of making a knowing and conscious refusal to take the test. Whether the driver has met this burden is a factual determination to be made by the trial court. O’Connell at 248-9, 955 A.2d at 876.

In the case at bar, the first four elements are not disputed. Once the burden shifts to the appellee then we must examine whether or not the appellee was capable of making a knowing and conscious refusal. Appellee argued that his refusal was not knowing and conscious because of the confusion created by the form. Appellee’s testimony reveals that he was very confused and that he said so to the officer.

“Q: When you heard, ‘you’re hereby advised that although you have a right to refuse to submit to the test’ — this is after he read you the Miranda rights — ‘you do not have the right to consult with an attorney or anyone else prior to taking the test,’ did you ever raise the contradiction in that statement there?
“A: I said one portion of this form says I have the right to an attorney. The bottom portion of the form says I don’t. You’re asking me to sign the whole form. You’re not X-ing out the top. In fact, you’re crossing yes.
“Q: You said this?
“A: Absolutely. When I saw this form, I questioned all the proceedings at that point forward.
“Q: So it wasn’t clear to you, you didn’t have a right to an attorney based on this statement?
“A: It was clear to me I was uncertain about what I was supposed to do at that point and time.” (Notes of testimony at 36.)

Apparently nothing was said by the officer to appellee to help him resolve his confusion or clarify the situation further. We found appellee’s testimony regarding his confusion to be both reasonable and credible. The inherently confusing form used by Buckingham Township could even render the most informed defendant totally incapable of making a knowing and conscious decision regarding the breathalyzer test.

For the foregoing reasons, we issued the order complained of on appeal.


author: ACKER, P.J.,

text:
    Leidy v. Epstein

      Ivan P. Leidy, in propria persona.

      William C. Kuhn, for defendants Sharon Herald and Ottoway Newspapers.

      Larry P. Gaitens and William J. Madden, for defendants John A. Wareham and City of Sharon.
    January 30, 1991
   ACKER, P.J.,

The Sharon Herald and Ottoway Newspapers Inc. have petitioned for attorneys’ fees and indemnification at 995 C.D. 1990, for damages claimed pursuant to 42 Pa.C.S. §8355. That case terminated favorably to all of the defendants through our order of October 1, 1990, sustaining a preliminary objection in the nature of a demurrer. That order was not appealed and is a final order.

The petition for attorneys’ fees and indemnification for damages is founded upon Act 6 of 1990, section 3, amending Title 42 (Judiciary and Judicial Procedure) Chapter 83, through the addition of section 8355 as found in no. 1 Purdon’s Pa. Legislative Service of March 1990. The effective date of the statute was 60 days after approval of February 7, 1990, or April 7, 1990.

The complaint in this action was filed on August 6, 1990. The alleged misconduct as to 995 C.D. 1990 occurred after the effective date of the statute by about four months. It is, therefore, subject to the statute. In addition petitioners, Sharon Herald and Ottoway Newspapers Inc., cite 42 Pa.C.S. §2254, claiming that Leidy actively practiced law without a license in violation of that statute through his representation of Mary Stevenson (a former controller of Mercer County) in a federal action which terminated favorably to defendants. (Civil Action no. 88-860, U.S. District Court, Western District of Pennsylvania.) Petitioners do not claim damages for the efforts of respondent Leidy for practice of law, but use it to demonstrate that respondent’s conduct has been “fully insubstantial and patently frivolous.”

Petitioners ask for attorneys’ fees of $1,050 and costs that have been incurred in the defense of this action. Petitioners also request damages in a federal action, which went to the U.S. Third Circuit Court of Appeals 880-860 and which was denied certiorari by the U.S. Supreme Court on March 20, 1989, in the amount of $2,018.

In addition petitioners desire that we impose a civil penalty on respondent for wrongful use of civil proceedings in this action at 995 C.D. 1990 and in the,federal action, based on the authority of 42 Pa.C.S. §6355 which authorizes a penalty of up to $10,000.

From February 19, 1981, to April 7, 1990, Pennsylvania provided remedies for wrongful use of civil proceedings as found in 42 Pa.C.S. §§3351-8354. The amendment through the addition of section 8355 brought plaintiff to and beyond the authority in the federal courts through Federal Civil Rule 11.

We have found no reported case construing the recently added section 8355 of 42 Pa.C.S. Therefore, we rely heavily upon the numerous federal decisions interpreting its Rule 11. In fact the two rules are almost identical except the Pennsylvania statute permits the imposition of a civil penalty not to exceed $10,000 in addition to all other entities.

Respondent’s complaint at 995 C.D. 1990, to which we sustained a demurrer, was captioned, “Complaint in Assumpsit and Trespass, Action in Mandamus.”

Mandamus is of course a particularly inappropriate action under the facts of that case. Mandamus is an extraordinary remedy which is available to compel a performance of a ministerial act or a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other adequate, appropriate and specific remedy. 18 Standard Pa. Practice 2d, §99:1, at 283. Nor was there a scintilla of support for an action in assumpsit and/or trespass at that number and term.

By the complaint plaintiffs, Leidy and Vito Manilla, asked the court to overturn the charges of theft against Vito Manilla (a former president of Sharon City Council) and to reinstate an action filed at 899 C.D. 1984 by Ivan Leidy against the City of Sharon. Plaintiffs were seeking in 995 C.D. 1990 monetary damages in excess of $10,000, claiming false arrest, misuse of taxpayer’s money, theft by deception, and conspiracy to commit fraud by city officials.

At a hearing upon the petition of the Sharon Herald and Ottoway Newspapers Inc., no oral testimony was offered. We do, however, take judicial notice of our records at 823 Criminal 1989. There, Vito Manilla, at that time City Council president, was charged with a felony of the third degree for theft by deception in claiming monies from the Pennsylvania League of Cities for reimbursement for trips while he was also being paid by the City of Sharon for the same expenses. Manilla elected to plead guilty, and on March 26, 1990, was sentenced to pay the costs, be on probation for five years and make restitution as to count I in the amount of $4,841.17. As to count II restitution of $513.94 was ordered, and as to count III probation for a period of two years; as to count IV probation for a period of five years to run concurrently was ordered. Manilla was also ordered to not serve upon any governmental agency board or commission and to be on house arrest for a period of one year.

The action at 899 C.D. 1982, which Ivan Leidy desires to reinstate, requests that the City of Sharon cease discrimination in property assessments, misuse of taxpayers’ money, show respect for the health and welfare of the citizens of the community, permit inspection of financial statements of the Parking Authority and the Redevelopment Authority, not apply for and misuse federal grants, cease publication of incorrect financial statements, cease passing discriminating ordinances and resolutions and enforce city ordinances.

When plaintiff in that action, Ivan P. Leidy, appeared in open court, he stated his desire to withdraw his suit. Counsel for defendant agreed, and Fornelli, J., of this court ordered that the action be discontinued on November 4, 1985. There has been no further activity concerning 899 C.D. 1989 for over five years.

At the outset we recognize that respondent is a pro se plaintiff. Under the nearly identical Federal Rule 11, pro se litigants are not immune from Rule 11 sanctions. Dean v. ARA Environmental Services Inc., 124 F.R.D. 224 (N.D. Ga. 1988). A movant does have a greater burden in bringing a Rule 11 motion against a non-lawyer. Fischer v. Samuel Montagu Inc., 125 F.R.D. 391 (S.D.N.Y. 1989). But liability has been held against numerous pro se plaintiffs who violated the sanctions of Rule 11. McKeown v. L.T.V. Steel Co., 117 F.R.D. 139 (N.D. Ind. 1987); Dean v. ARA Environmental Services Inc., supra; Moeller v. U.S., 127 F.R.D. 160 (W.D. Ark. 1989).

Respondent has filed the following actions in addition to Leidy v. City of Sharon, supra, which was subsequently withdrawn. In Leidy (Pro Se) v. City of Sharon, no. 705 C.D. 1983, an action was dismissed by the court of common pleas and this dismissal affirmed by the Commonwealth Court. If plaintiff did not know how to plead prior to that action, he would have received invaluable instruction had he wished to follow the thorough opinion of Stranahan, P.J., which pointed out the errors of his way.

Respondent Leidy filed pro se his next action against the City of Sharon, Board of Education, Sharon Teachers Association, Department of Education and the Commonwealth of Pennsylvania, at no. 474 C.D. 1985. In an extensive opinion by Fornelli, J., he would have educated himself in pleading law had he elected to read and follow that opinion. Plaintiff was given 20 days to amend. The matter returned to Fornelli, J., who wrote a second comprehensive opinion. The court dismissed the action due to improper service and failure to state a cause of action. In that case the Mercer County Bar Association interceded in submitting a brief concerning the preliminary objections. This case was appealed to the Commonwealth Court where the defendant’s motion to quash was granted. Leidy v. City of Sharon, Bd. of Education, Pa. Commw., no. 603 C.D. 1986 (September 10, 1986). The Supreme Court of Pennsylvania also quashed a later appeal, 515 Pa. 589, 527 A.2d 548 (1987).

Plaintiff next filed a pro se action against Judge John Q. Stranahan and Judge Francis J. Fornelli, at no. 87-1427 in Federal District Court for the Western District of Pennsylvania. This suit was dismissed by the District Court and affirmed by the Third Circuit Court of Appeals. Leidy v. Stranahan, 865 F.2d 251 (3d Cir. 1988).

It appears to be the practice of respondent to file suit against persons who render opinions or argue matters in court through brief or oral argument which causes him to be dissatisfied. Most recently at no. 1157 C.D. 1990, Ivan Leidy filed an action against William C. Kuhn, attorney for the Herald and Ottoway Newspapers. Attorney Kuhn’s employers were sued for a publication in the November 21, 1990, edition of the Herald. No facts are alleged as to any alleged misconduct as to attorney William Kuhn.

Respondent Leidy, for himself and allegedly for Mary L. Stevenson, former controller of the County of Mercer, filed a pro se action against the Sharon Herald, Ottoway Newspaper Company and the Youngstown Vindicator Newspaper Company, at no. 88-860 in Federal District Court at Western District of Pennsylvania. This action was dismissed sua sponte by the court and affirmed by the U.S. Court of Appeals. Leidy v. Sharon Herald Newspaper Co., 865 F.2d 251 (W.D. Pa. 1988). Certiorari was denied by the U.S. Supreme Court on March 20, 1989. Leidy v. Sharon Herald, 57 U.S.L.W. 3619 (1989). Leidy attempted to improperly replead the earlier action against Judge Stranahan and Judge Fornelli at no. 87-1427 U.S. District Court in his petition for certiorari to the U.S. Supreme Court in this case.

In a memorandum opinion at no. 860 Civil Action in the U.S. District Court, Chief Judge Maurice B. Cohill Jr. concluded that the claim was both “wholly insubstantial and patently frivolous.”

Respondent’s next pro se action was against Jim Sarvas, individually and/or doing business as Sharon Ford, filed at no. 1025 C.D. 1989 in our court. The facts of the case were first heard and decided by a district magistrate against plaintiff, Leidy. Upon appeal, a Board of Arbitrators also determined the case in favor of defendant. There was no appeal.

At no. 886 C.D. 1990 the movant Leidy pro se filed another action against Jim Sarvas and/or Sharon Ford. This was an action for money damages.

The action at 886 C.D. 1990 was filed by Leidy on July 13, 1990. Defendant raised preliminary objections, the first of which was sustained thereby striking the complaint for failure to comply with established procedures. Pa.R.C.P. 1019(a)(b) and (f). Instead of appealing, the movant filed a new action. At the time of argument he was asked specifically whether he was contending that he was being denied the right to appeal the decision of the Board of Arbitration. He denied that position contending instead that he was filing a new action. Being the same cause of action as previously litigated, we ordered on October 26, 1990, that the complaint be stricken with prejudice. This is now on appeal.

In cases which were clearly harassment and where the litigant should surely have known that the complaint had no hope whatsoever of success, sanctions of Rule 11 were imposed. In Saltony v. Reagan, 886 F.2d 438, (D.C. Cir. 1989), Libyan citizens filed a complaint against the United Kingdom for allowing American planes to use British air space en route to bomb Libya. In McKeown, supra, a fine of $1,500 was imposed upon a pro se plaintiff for a frivolous action in which he attempted to argue various income tax laws were unconstitutional, where various defendants who were randomly selected were sued and where it was apparent that plaintiff had failed to conduct a reasonable inquiry into the facts and the law. In Charlton v. Estate of Charlton, 48 B.R. 1012 (B.C. Ariz. 1985), sanctions against both the plaintiff and her attorney were imposed where the plaintiff’s pleading asked for a declaratory judgment that the sale of property of the bankrupt estate was a nullity. It was concluded there was no basis for the argument under existing law to support her position, and it was therefore not a good-faith argument. Sanctions were imposed in Mir v. Little Co. of Mary Hospital, 844 F.2d 646 (9th Cir. 1988). A doctor who had been denied surgical privileges at the hospital filed an action claiming antitrust violations against the hospital. The doctor continued the challenge over a nine-year period. The court concluded that this was harassment.

In In re Disciplinary Action Against Mooney, 841 F.2d 1003 (9th Cir. 1988), a motion to move a case from state to federal court on diversity grounds, where the facts as alleged were absolutely untrue, was held to be frivolous and to warrant sanctions.

In Schaeffer v. Chicago Police Officers, 120 F.R.D. 514 (N.D. Ill. 1988), it was held that a pro se plaintiff had the duty to investigate the facts and the legal basis for the suit before filing. Failure to do so subjected her to Rule 11 sanctions.

In Hilgeford v. Peoples Bank Inc., Cortland, Indiana, 652 F.Supp. 230 (N.D. Ind. 1986), Rule 11 was held to apply even though it was a pro se action. At page 235 it was noted that the Advisory Committee for Federal Rules made it clear that Rule 11 provisions were designed to “discourage dilatory or abusive tactics and to help streamline the litigation process by lessening frivolous claims or defenses.” The same standard applies to pro se litigants as to others. It was held that the extensive conduct of the plaintiff consisted of harassment and was in direct violation of Rule 11.

An examination of the facts and into the law as we believe it will be applied in Pennsylvania causes us to conclude that respondent Leidy had no basis to believe the complaint at 995 C.D. 1990 was well-founded in fact and warranted by existing law, or that a good-faith argument could be made for it. We conclude that it was interposed in bad faith and for an improper purpose.

There is insufficient evidence to determine whether respondent was in fact practicing law at 995 C.D. 1990. No testimony was received. In the complaint it was not disclosed whether Leidy was professing to act for Manilla. Although every pleading must be verified pursuant to Pennsylvania Rule of Civil Procedure 1024, it is not required that every plaintiff verify the complaint. Pa.R.C.P. 1024(c). It would appear that if it was established that Leidy was filing on behalf of Manilla, he would be practicing law in violation of the statute. 42 Pa.C.S. §2254. See Blair v. Motor Carriers Service Bureau, 40 D.&C. 413 (1941); Walker v. Kohn, 31 D.&C. 620 (1938); Childs v. Smeltzer, 16 Erie Leg. J. 87 (1934).

If petitioner wishes to pursue the matter, injunc-tive relief is a possible remedy. Dauphin County Bar Association v. Mazzacaro, 475 Pa. 545, 357 A.2d 229 (1976).

As to the claim for attorneys’ fees in the action of Leidy and Mary L. Stevenson v. Sharon Herald Newspaper Company, Ottoway Newspaper Company Inc. and Vindicator Newspaper Company et al., U.S. District Court for Western District of Pennsylvania, Civil Action 88-860, we conclude it is the province of the federal authorities to pursue the matter. At oral argument respondent challenged the authority of the court to impose attorneys’ fees, costs and/or penalty due to lack of jurisdiction. We agree.

In addition, the federal action was filed and completed prior to April 7, 1990, the effective date of 42 Pa.C.S. §8355.

We conclude that due to respondent Ivan Leidy’s bad faith and improper purpose of harassment and to cause expenses of litigation, he must pay the attorneys’ fees of $1,250 and a penalty of $500 within 30 days of the date of this order.

ORDER

And now, January 30, 1991, it is the order of the court that the prayer of the petition for attorneys’ fees at 995 C.D. 1990 and indemnification for damages pursuant to 42 Pa.C.S. §8355 be granted, and that Ivan P. Leidy shall pay through this court to the Sharon Herald and Ottoway Newspapers Inc. their expenses in the amount of $1,250 and an additional civil penalty in the amount of $500.

We make no award as to attorneys’ fees, costs or civil penalty as to the action of Ivan P. Leidy and Mary L. Stevenson, plaintiffs, versus Sharon Herald Company, Ottoway Newspapers Company, Youngstown Vindicator Newspaper Company, at no. 88-860 of the U.S. District Court for the Western District of Pennsylvania.

       Due to the deterioration of Vito Manilla’s health, he was released from house arrest on November 16, 1990. There has been no appeal of the sentence imposed. There was no evidence that Leidy does in fact represent Vito Manilla or that Manilla willingly joined into the action.


author: O’BRIEN, J.,

text:
    Seifert v. Seifert

      Arthur L. Zulick, for plaintiff.

      M. Anne Dalton, for defendant.
    February 11, 1991
   O’BRIEN, J.,

Plaintiff, Scott J. Seifert Sr., and LaVaughn C. Seifert were married on February 15, 1975 and divorced on November 9, 1978. The parties remarried on March 7, 1981 and separated on April 7, 1989. The parties have two children, Scott (born December 22, 1976) and Toby (born July 8, 1981) who reside with their mother. Plaintiff husband filed a complaint for divorce on June 28, 1989 and subsequently this court appointed Jeffrey J. Kash, Esq. as master to conduct evidentiary hearings and make a recommendation on the economic issues in dispute between the parties. On December 6, 1990, the master filed his report making recommendations with respect to all economic issues. Plaintiff husband filed timely exceptions which, following the submission of briefs and argument before the court, are now before the court for disposition.

In his report, the master found that the marital property available for distribution had a value of $173,131.86 and, after considering the factors enumerated in 23 Pa.C.S. §401(d), he recommended a distribution of 60 percent to the wife and 40 percent to the husband. The practical effect of this recommended distribution would be to allow the wife to have the former marital residence in which she and the children reside free and clear of all liens and encumbrances and the husband would receive the other liquid assets of the marriage. The master also recommended that the wife be awarded attorneys’ fees in the amount of $1,392 and alimony of $86 per week “until such time as her income reaches or exceeds 50 percent of husband’s net yearly income.” In his exceptions, plaintiff husband alleges that the master erred in his determination as to the amount of assets which were marital property subject to equitable distribution, and also erred in awarding alimony to defendant wife.

Husband’s exceptions with respect to the composition of the marital estate available for distribution relate to the master’s findings as to the source of funds in the construction of the marital residence and the distribution of funds received from the sale of other assets. Both parties presented testimony concerning the source and distribution of the funds in question. The master was required to evaluate the credibility of the respective parties’ versions of these transactions in order to determine the estate available for equitable distribution. In making this determination, the starting point is the presumption set forth in 23 Pa.C.S. §401(f) that all property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or in some other form. The master heard the testimony of all the witnesses and was able to personally evaluate their credibility. The master’s conclusions with respect to the composition of the marital estate are supported by evidence in the record which he found credible. It is not the role of this court to substitute its opinion for that of the master with respect to issues of credibility. Mintz v. Mintz, 258 Pa. Super. 187, 392 A.2d 747 (1978). Therefore, we adopt the master’s findings on credibility with respect to the determination of the marital assets available for distribution and conclude that husband’s exceptions to these findings are without merit.

The primary thrust of the argument of counsel for both parties before the court pertains to the master’s decision with respect to alimony. The Divorce Code contains the following pertinent provisions with respect to the subject of alimony:

“(a) Where a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party, only if it finds that alimony is necessary.
“(b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
“(1) The relative earnings and earning capacities of the parties.
“(2) The ages, and the physical, mental and emotional conditions of the parties.
“(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
“(4) The expectancies and inheritances of the parties.
“(5) The duration of the marriage.
“(6) The contribution by one party to the education, training or increased earning power of the other party.
“(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
“(8) The standard of living of the parties established during the marriage.
“(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
“(10) The relative assets and liabilities of the parties.
“(11) The property brought to the marriage by either party.
“(12) The contribution of a spouse as homemaker.
“(13) The relative needs of the parties.
“(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony.
“(15) The federal, state and local tax ramifications of the alimony award.
“(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 4, to provide for the party’s reasonable needs.
“(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.
“(c) The court in ordering alimony shall determine the duration of the order, which may be for a definite or an indefinite period of time which is reasonable under the circumstances.” 23 Pa.C.S. §501.

The master found that the husband has completed his high school education and earns approximately $35,000 per year. On the other hand, the wife has not completed her high school education and earns approximately $10,000 per year. After considering all of the factors enumerated in the statutory scheme set forth above, in particular the fact that the wife will be the custodian of the two children who are presently ages 15 and 9, the master concluded that the wife was entitled to alimony in the amount of $161 per week. However, since husband is presently paying $75 per week child support for the two children pursuant to an order of this court entered upon agreement of the parties, the alimony award was reduced to a net of $86 per week ($161 minus $75). The master also recommended that the alimony continue until such time as the wife’s income reaches or exceeds 50 percent of husband’s net yearly income. This mechanism for an award of alimony has been approved by our Superior Court in Teribery v. Teribery, 357 Pa. Super. 384, 516 A.2d 33 (1986). However, we agree with counsel for husband that the facts in the case at bar are clearly distinguishable from Teribery, supra. In Teribery the wife was 51 years old and suffered from a mental illness, and the parties had been married for 31 years during which the wife had been a full-time homemaker. In the case at bar, the parties are both in their early thirties, in good health, and within a few years one of the two children will have completed schooling and be available to assist with the finances of the household. Further the scheme suggested by the master does not give the wife any incentive to improve her economic condition by education or otherwise improving her employability.

Therefore, we conclude an award of alimony to the wife for an indefinite period of time is not appropriate in this case. However, we do find that the master’s computation of the amount of alimony is fully supported by the evidentiary record and is fair to these parties. However, we feel the period of alimony should be limited to afford the wife a reasonable opportunity to conclude her education and enhance her position in the job market. Such a conclusion is consistent with the following rationale enunciated by our Superior Court in Bickley v. Bickley, 301 Pa. Super. 396, 447 A.2d 1025 (1982):

“We hold, therefore, that the provisions of section 501 are to be read in conjunction with each other and with the intent and purposes of the act as a whole, so that economic justice results, and harm to the spouses and children is mitigated.”

DECREE

And now, February 11, 1991, plaintiff’s exceptions to the recommendations of the divorce master are sustained in part and dismissed in part and it is ordered as follows:

(1) Plaintiff, Scott J. Seifert Sr., and defendant, LaVaughn C. Seifert, are divorced from the bonds of matrimony.

(2) The recommendations of the master with respect to equitable distribution of marital property are approved and the parties are directed to carry out the terms thereof.

(3) Plaintiff husband shall pay alimony to defendant wife the amount of $86 per week for a period of three years from the date hereof.

(4) Plaintiff husband shall pay the costs of these proceedings and attorneys fees to defendant wife in the amount of $1,392.

       Both parties have executed affidavits of consent in support of the entry of a divorce decree pursuant to 23 Pa.C.S. §201(c).


author: LEETE, P.J.,

text:
    Commonwealth v. Pennell

      Jeffrey Leber, assistant district attorney, for the Commonwealth.

      Peter Campana, for defendant.
    January 29, 1991
   LEETE, P.J.,

Before the court are omnibus pretrial motions by defendant. The motions include a writ of habeas corpus challenging the sufficiency of the evidence produced at the preliminary hearing as well as a motion to suppress a statement taken from defendant by the Pennsylvania State Police.

Defendant was charged with two counts of involuntary manslaughter, causing a catastrophe, risking a catastrophe, and reckless endangerment. These charges were originally filed before District Justice Katherine Garrote, who found that the Commonwealth had not established a prima facie case. Thereafter, the Commonwealth refiled the charges. Justice Garrote recused herself and the case was then heard by District Justice Edward Easton who, after hearing, found a prima facie case and bound the charges against defendant over to court for trial.

Both the Commonwealth and defense submitted a transcript of the preliminary hearing before Justice Easton and stipulated that the facts therein were to be considered by the court.

These facts, construed in a manner most favorable to the Commonwealth, may be summarized as follows: Defendant resided in an upstairs apartment over Kline’s Gift Shop in Pike Township, Potter County, Pennsylvania. There were other apartments on the second floor of the building as well. Defendant’s apartment shared a common wall with an apartment which housed Carol Schroeder and her daughter Melody, the victims herein. On the evening of January 26, 1990, defendant left work at a nearby factory at midnight and visited several taverns consuming, by his own admission, between nine and 11 beers. Later, he returned home to his apartment, sat at the kitchen table, watched television and apparently smoked three or four cigarettes. It is unknown exactly what time defendant went to bed. He testified it was his custom to go to bed between 3:30 and 4 a.m. Defendant also customarily emptied his ashtray into the wastebasket before going to bed. After being asleep, he awakened and saw the kitchen wall on fire, with flames coming out of a wastebasket sitting along the common wall with the Schroeder apartment. As a result of the fire, the victims perished.

Defendant had not been sleeping long when he awoke and saw the fire. Defendant was, by his own admission, drunk. The alarm was phoned into the Tioga County Communications Center at 4:06 a.m. on January 27. The Fire Marshall, through his testimony, essentially ruled out external causes of the fire and concluded that the fire originated due to human involvement.

While much of the Commonwealth’s evidence resulted from defendant’s statement, which has been challenged, the court will consider all of the Commonwealth’s evidence for the sole purpose of discussing the habeas corpus.

The central issue raised by defendant’s motion is whether or not the Commonwealth has established a prima facie case, and especially the element of culpability. The Commonwealth obviously must establish each and every element necessary to constitute the offenses charged. On review, the court must accept the Commonwealth’s evidence as true, and may also consider “inferences reasonably drawn from the evidence of record which would support a verdict of guilty. ...” The evidence must be read “in the light most favorable to the Commonwealth’s case.” Commonwealth v. Snyder, 335 Pa. Super. 19, 483 A.2d 933 (1984). The element of culpability in each offense charged is either recklessness or gross negligence. Therefore, the court must determine whether the actions of defendant in smoking cigarettes and dumping his ashtray into a waste basket constituted recklessness or gross negligence under the circumstances of this case. Because of the court’s determination of this central issue, it will not be necessary to consider the balance of defendant’s motions.

It may be helpful to point out what the Commonwealth’s evidence does not establish. The Commonwealth has not established exactly how long after the ashtray was dumped that the fire started. Reviewing Mr. Pennell’s statement, one can infer that the range of times was approximately between six minutes and 36 minutes, based upon the time that he customarily went to bed. The exact time he went to bed on the evening in question has not been established. Similarly, the Commonwealth has failed to establish any custom or habit on the part of defendant of dumping embers or hot ashes into the trash. The closest the Commonwealth came was in defendant’s statement that he had, on occasion, fallen asleep at the table and dropped cigarettes.

Involuntary manslaughter is defined for our purposes as follows: “A person is guilty of involuntary manslaughter when, as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” 18 Pa.C.S. §2504. The remaining offenses, specifically recklessly endangering another person, and causing or risking a catastrophe, all require the element of recklessness. 18 Pa.C.S. §§2505 and 3302.

Pennsylvania law does not contain an express definition for gross negligence, even though this term is used in various statutes. Recklessness seems to equal or approximate gross negligence, according to our Supreme Court. Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983). The Crimes Code defines “negligently” in 18 Pa.C.S. §302(b)(4) as the lowest grade of culpability. In Lobiondo, Id., the Supreme Court referred to recklessness as the next highest degree of culpability, and noted that “the legislature has apparently equated recklessness with acting in a ‘grossly negligent manner.’ ” Lobiondo, supra.

Our Crimes Code defines recklessness as follows:

“A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that considering the nature and intent of the actor’s conduct the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.” 18 Pa.C.S. §302(b)(3).

To establish involuntary manslaughter, where, as here, the act involved is essentially lawful, the conduct of the defendant must be such a departure from that of a reasonable man under the same circumstances that the defendant “consciously disregarded or in a gross departure from a standard of reasonable care, failed to perceive a substantial and unjustifiable risk that his action might cause death or serious bodily harm.” Commonwealth v. Youngkin, 285 Pa. Super. 417, 427 A.2d 1356 (1981); Commonwealth v. Agnew, 263 Pa. Super. 424, 398 A.2d 209 (1979).

The court must now determine whether or not the actions of defendant constituted reckless conduct such as would give rise to criminal liability. From the court’s point of view, it is evident that the conduct of defendant, as he testified himself, was negligent. The question is whether or not defendant’s conduct is something more than negligent. Does it reach the higher degree of culpability referred to by the Supreme Court in Lobiondo, supra? A detailed review of case law in Pennsylvania and several other states has failed to disclose a single case with facts similar to the instant case. In fact, no cases have been found dealing with recklessness arising from careless smoking. Several cases, however, are illustrative of the type of situation which may or may not give rise to involuntary manslaughter.

In Commonwealth v. Keysock, 236 Pa. Super. 474, 345 A.2d 767 (1965), the court affirmed the involuntary manslaughter conviction of a defendant who had rebuilt an old car, and driven it on a wet highway at relatively high speeds. The car was not inspected and had bad tires on it. An accident resulted in which the other driver was killed.

Commonwealth v. Rosov, 262 Pa. Super. 121, 396 A.2d 675 (1978), was also a motor vehicle case. The defendant’s conviction for involuntary manslaughter was affirmed where he repeatedly took his eyes off the road to check a defective fuel gauge as he was rounding a curve near the top of a hill. The defendant crossed several lanes of traffic and crashed into a car coming the other way.

The Superior Court, in Commonwealth v. Gilliland, 281 Pa. Super. 354, 422 A.2d 206 (1980), did not find the element of recklessness present when a defendant, driving his boat on a lake in near-dark conditions, crashed into another boat which he had failed to see. The court found the defendant’s conduct to be essentially negligent, but not grossly negligent or reckless as the conduct did not manifest an indifference to human life.

In accord is the case of Commonwealth v. Trainor, 252 Pa. Super. 332, 381 A.2d 944 (1977). In that case, the defendant sideswiped another truck with his truck. His vehicle became airborne and landed on top of a car, killing the occupants. Defendant had briefly crossed into the wrong lane. The Superior Court found no criminal liability, as the accident had been caused by the defendant’s “brief inattention to the road ahead.”

These cases indicate that something far more than ordinary negligence or inadvertence is required to support a charge of involuntary manslaughter. Rosov, supra, for example, involved the driver repeatedly taking his eyes from the road, and drifting across several lanes. Undoubtedly, the result would have been different had the defendant’s conduct been limited to a simple instance of taking his eyes from the road. In Keysock, supra, defendant violated an acceptable standard of conduct in several ways. His speed, the poor tires, and the weather conditions all played a role in the affirmance of his conviction.

Perhaps the most relevant case for consideration is a case originating here in Potter County, Commonwealth v. Penn Valley Resorts Inc., 343 Pa. Super. 387, 494 A.2d 1139 (1983). Defendant corporation’s manager had booked a large party for minors and served them alcoholic beverages. One of the minors became visibly intoxicated and belligerent, and defendant’s agent continued to serve him. Defendant’s agent stopped the young man’s friends from calling the police twice and at one stage, handed his car keys to him. After defendant’s agent left the scene, the young man left in his car and was killed shortly thereafter in an accident. Judge Hester, in affirming the corporation’s conviction for involuntary manslaughter, noted that “the serving of intoxicating beverages to a minor or visibly intoxicated person alone may not constitute involuntary manslaughter or reckless endangerment. Here, it was the serving of alcohol, coupled with several crucial elements known to Clancy which established causation, and therefore, the offenses.” Penn Valley Resorts, supra.

Comparing Penn Valley to the instant case, it is apparent that the recklessness present there is lacking here. Clancy, as defendant’s agent, indeed acted recklessly not only by serving the intoxicated and belligerent young man, but also by returning his keys to him, and stopping friends from summoning police assistance. Such conduct is not present here, nor anything approaching it. Defendant’s conduct here does not contain other “crucial elements” as referred to by Judge Hester.

Another involuntary manslaughter case that shows the type of conduct necessary to support a conviction is Commonwealth v. Feinberg, 211 Pa. Super 100, 234 A.2d 913 (1967), aff'd 433 Pa. 558, 253 A.2d 636 (1969). Defendant merchant ran a store in a Skid Row neighborhood and sold large quantities of Sterno, or canned heat containing poisonous methanol, to persons he knew would drink it. He continued sales even after a new shipment came in clearly designating the contents as poison. Various persons were fatally poisoned as a result.

The Superior Court found defendant’s actions in making sales of Sterno grossly negligent, demonstrating “a wanton and reckless disregard for the welfare of those whom he might reasonably have expected to use the product for drinking purposes.” Feinberg, supra. The Supreme Court later affirmed these convictions.

The requirement of recklessness or gross negligence is, therefore, a substantial one, and one in which the defendant disregarded or failed to perceive a great risk that his conduct may be deadly toward others.

Ordinary criminal negligence, which according to statute is a lesser standard than either gross negligence or recklessness, has been described as follows: did not perceive the risk of harm created by his conduct. In such cases, the law presumed wantonness even though the circumstances do not allow proof beyond a reasonable doubt the actor’s subjective awareness of wrongdoing. ‘Criminal negligence’ is a breach of duty so flagrant in the circumstances that we may safely indulge in the legal fiction that it was committed with actual intent to injure; see Schultz v. State, 89 Neb. 34, 130 N.W. 972 (1911); it is far from mere ordinary negligence or inadvertent; it is ‘great’ negligence incompatible with the proper regard for human life; People v. Peabody, 46 Cal. App. 3d 43, 119 Cal. Rptr. 780 (1975); State ex rel. Zent v. Yanny, 244 Wis. 342, 12 N.W. 2d 45 (1943).” Commonwealth v. Heck, 341 Pa. Super. 183, 491 A.2d 212 (1985).

“We must remember that criminal negligence involves a gross deviation from reasonable care such that it would be shocking to allow the actor’s lack of awareness to excuse his actions in the circumstances. The criminally negligent act has been done so heedlessly, so indifferently and so grossly contrary to common experience that it becomes intolerable to reasoning minds that the actor

The above-quoted definition of ordinary criminal negligence from Heck, supra, carries a burden of proving substantial misconduct or deviation from a reasonable man standard. Here, the Commonwealth’s evidence must establish even more, namely recklessness, or a conscious disregard of a known risk, to defeat defendant’s habeas corpus petition.

All that the Commonwealth has presented us is that, after consuming alcoholic beverages, defendant apparently emptied an ashtray into a wastebasket, and that after some passage of time, a fire resulted and the victims died as a result. There has been no showing that defendant actually intended such a result, or was in the custom of engaging in that type of conduct. Can it be said that emptying the ashtray, some undefined period of time after defendant quit smoking, with the result that a fire started some time later, meets this high standard of recklessness? Or, was defendant’s conduct negligent, inadvertent, or something other than reckless?

Without more evidence to establish culpability, the court cannot say as a matter of law that defendant’s conduct was reckless as required to prove the elements of all the offenses charged. In fact, it would require speculation and overreaching by the court to find defendant’s conduct criminally negligent, let alone reckless. The Commonwealth’s evidence simply does not rise to the required level of culpability. The testimony viewed most favorably to the Commonwealth shows no “conscious” disregard nor that the risk was “substantial and unjustifiable.” If there was evidence that defendant’s admitted intoxication, as opposed to inadvertence, caused him to do as he did, and that otherwise, his conduct would have been different, perhaps that would strengthen the Commonwealth’s case. There is no such evidence before the court.

Of interest in this regard is the California case of People v. Hooper, 181 Cal. App. 3d 1174, 226 Cal. Rptr. 810 (1986). Defendant there was charged with unlawfully causing a fire, allegedly attempting to burn contraband from a theft. The offense required the element of recklessness. After defining recklessness in terms similar to Pennsylvania law, the court noted the statute contained the following express language: “A person who created such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.” Id. The definition then encompassed intoxication in terms of making a defendant aware of the risk he creates despite intoxication.

In the instant case, there is no evidence that defendant was aware of the risk, with or without intoxication. Nor is there any evidence that intoxication was any factor. What emerges here, after careful analysis, is careless disposal of smoking material with tragic consequences. Accordingly, defendant must be discharged.

The court reaches this result cautiously, recognizing that two innocent persons lost their lives, allegedly as a result of defendant’s negligence. That tragic fact, however, cannot in itself justify a finding of criminal liability based on recklessness when there is so little evidence.

In view of the court’s determination, it is unnecessary to determine the other issues raised by defendant’s motion.

Accordingly, the following order is entered.

ORDER

And now, January 29, 1991, defendant’s omnibus pretrial motion in the form of a petition for writ of habeas corpus is hereby granted, and the Commonwealth having failed to establish a prima facie case against defendant on all of the charges now outstanding against him, accordingly defendant is discharged.


author: LUDGATE, J.

text:
    Commonwealth v. Schmehl

      Jeanne R. Boyer, assistant district attorney, for the Commonwealth.

      Lawrence J. Hracho, for defendant.
    February 7, 1991
   LUDGATE, J.

On November 7, 1990, this court entered an order granting defendant’s petition for dismissal of charges on double jeopardy grounds, and the case was dismissed. An appeal was timely filed by the Commonwealth, and this opinion is written pursuant to Pa.R.A.P. 1925(a) and in support of that order.

On November 26, 1990, in accordance with Rule 1925(b), this court entered an order directing that the Commonwealth file a concise statement of matters complained of on appeal. In its concise statement of matters complained of on appeal, the Commonwealth contends that:

“The trial court erred in determining that double jeopardy grounds barred the prosecution of charges of traffic control signals, driving under the influence, and driving on a roadways [sic] laned for traffic, because after the companion charge of reckless driving, apparently in response to defendant’s counsel’s argument that the Commonwealth had to proceed with the more specific charges of traffic control signals instead of the general charge of reckless driving.”

The dismissal order was based upon the U.S. Supreme Court decision in Grady v. Corbin, 495 U.S. _, 109 L.Ed.2d 548, 110 S.Ct. 2084 (1990). In Grady, the U.S. Supreme Court held that “the Double Jeopardy Clause bars a subsequent prosecution, if to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 109 L.Ed.2d at 557.

The double jeopardy clause of the Pennsylvania Constitution states that “no person shall for the same offense be twice put in jeopardy of life or limb. . .” Pa. Const., art. 1, §10. The Fifth Amendment to the U.S. Constitution provides likewise that “nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb.” U.S. Const., amend. V. The double jeopardy clause of the federal Fifth Amendment was made applicable to the states in Benton v. Maryland, 395 U.S. 784, 794, 23 L.Ed. 2d 207, 89 S.Ct. 2056 (1969).

The Pennsylvania Superior Court has held the protections afforded by the federal and state constitutions to be co-extensive, and that the state courts will adopt the approach of the U.S. Supreme Court in double jeopardy cases. Commonwealth v. Simons, 342 Pa. Super. 281, 492 A.2d 1119 (1985), citing Commonwealth v. Beaver, 317 Pa. Super. 88, 463 A.2d 1097 (1983).

In Commonwealth v. LaBelle, 397 Pa. Super. 179, 579 A.2d 1315 (1990), the Superior Court en banc held that the “double jeopardy clause of the Fifth Amendment may indeed serve to bar a prosecution of a more serious offense, once a defendant had been convicted on a summary charge, if the requirements of case law are met.” In the Matter of Huff, 399 Pa. Super. 574, 582 A.2d 1093 (1990), the Superior Court considered whether the concepts of double jeopardy or collateral estoppel, in the Fifth Amendment of the U.S. Constitution, prevent the Commonwealth from proceeding against a juvenile in Juvenile Court on homicide by vehicle and aggravated assault charges, following his prior conviction of two summary traffic violations before a district justice. In analyzing this question, the Superior Court considered whether the Commonwealth “in supporting the delinquency petition, is attempting to reprove conduct which forms the basis for the appellant’s conviction on the summary offenses. . . . No evidence may be introduced which would prove the conduct constituting an offense for which the appellant had previously been convicted.” Id.

In Huff, the Superior Court chose to carve out a jurisdictional exception to the double jeopardy analysis. The Superior Court interpreted Grady v. Corbin, 495 U.S _, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In Huff, the Superior Court quoted LaBelle, supra, holding that “the double jeopardy clause of the Fifth Amendment may indeed serve to bar prosecution of a more serious offense, once a defendant has been convicted on a summary charge, if the requirements of case law are met.” Huff, supra, quoting LaBelle.

The Superior Court accepted the Commonwealth’s assertion that a jurisdictional exception to the double jeopardy clause should be recognized since in Huff no single court had jurisdiction over both the summary offenses and the delinquency proceeding. At the same time, the Superior Court referred to Commonwealth v. LaBelle, where it specifically overruled Commonwealth v. Evers, 381 Pa. Super. 568, 554 A.2d 531 (1989), which had held that “the constitutional prosecutions of the double jeopardy clause are not implicated where a felony or misdemeanor protection is preceded by a conviction before a district justice, whether by summary trial or guilty plea for a summary offense.” Evers, supra.

The Commonwealth argues that this court erred by granting defendant’s motion to dismiss on double jeopardy grounds. As previously stated, the test established in Grady, supra, is whether to establish an essential element of an offense charged in that prosecution, the Commonwealth will prove conduct that constitutes an offense for which the defendant had already been prosecuted.

The question is whether the disposition of the summary offense amounts to prosecution for that conduct, thus placing the defendant once in jeopardy, and the present driving under the influence prosecution would place the defendant again in jeopardy for the same conduct.

The Commonwealth and defendant agreed that the court would consider the issue presented in defendant’s petition to dismiss based on the transcripts of the preliminary hearing before District Justice Anthony Horning on August 30, 1990. The facts briefly stated are that on July 19, 1990, defendant was driving his motor vehicle southbound on Route 61 in Muhlenberg Township, Berks County, Pennsylvania. Defendant was observed veering off the road to the right side of the highway two times. (N.T. 2.) Defendant “drove across all three lanes. There is a left-turning lane, there is [sic] two travel lanes to go south and then off to the right there is also a right-turn lane. He did this twice.” (N.T. 2.) Defendant then went through a red light without stopping. “He came up to the left lane, that lane which is controlled by a left-turning arrow. As he came up and approached the intersection, the traffic signal was red. He made a left turn without stopping, nearly causing an accident to two vehicles which were northbound on Route 61.” (N.T. 2.) The prosecutor “filed the charges of driving under the influence, reckless driving for nearly causing an accident, traffic control signals for proceeding past the red signal and driving on roadways laned for traffic. This was in response to his unable to — he was unable to stay within the lane of traffic.” (N.T. 3.)

Officer Rodney Fleishood requested that a summons be issued charging the defendant with driving under the influence of alcohol, 75 Pa.C.S. §3731 (a)(1). Defendant was also charged with reckless driving, driving on roadways laned for traffic and traffic control signals.

In a driving under the influence prosecution, the Commonwealth must prove that the defendant operated a motor vehicle while under the influence of alcohol to a degree which renders him incapable of safe driving. 75 Pa.C.S. §3731(a)(l).

In Grady, supra, the Supreme Court considered that the prosecutor had filed a bill of particulars which stated that it would in fact prove the entirety of the conduct for which Corbin had been previously convicted, that is, driving while intoxicated and failing to keep right of the median, to establish the essential elements of the homicide and assault charges against Corbin. In the instant case, the probable cause statement accompanying the officer’s summons request stated, in pertinent part, that defendant was “unable to remain within a single lane; continually swerving across all three lanes of travel. As defendant approached the Bellevue Avenue intersection, he disregarded a steady red signal. Defendant then made a left turn onto Bellevue Avenue, nearly causing an accident with a vehicle which was northbound on Route 61.”

The conduct which the Commonwealth will use to prove that defendant was unable to operate his motor vehicle safely is defendant’s continual swerving across all three lanes of travel, his disregarding of a steady light, and his nearly causing an accident. District Justice Anthony Horning dismissed the reckless driving charge against defendant, after hearing testimony at the preliminary hearing. The Superior Court has held that “[h]aving once been placed on trial in a court having jurisdiction to determine guilt or innocence and the charge having been dismissed, appellant could not thereafter be again placed on trial for the same offense.” Commonwealth v. Lyons, 395 Pa. Super. 184, 576 A.2d 1105 (1990).

Defendant was placed in jeopardy on the summary offenses before the district justice, and because the district justice dismissed the reckless driving summary, any subsequent prosecution based on the same reckless driving offense is barred by the double jeopardy clause, even if the dismissal was “based upon an ‘egregiously erroneous foundation ...'" In the Interest of R.R., 317 Pa. Super. 334, 464 A.2d 348 (1983).

The district justice dismissed the reckless driving charge based on the argument propounded by defendant that where defendant is charged with both a specific offense and a general offense based on the same conduct, the Commonwealth may not proceed with both charges, but rather must proceed only with the specific charge. See generally, Commonwealth v. Bidner, 282 Pa. Super. 100, 422 A.2d 847 (1980); Commonwealth v. Burkett, 300 Pa. Super. 72, 445 A.2d 1304 (1982).

Defendant was placed in jeopardy on the summary offenses before the district justice, because the district justice heard testimony regarding the offense at the preliminary hearing, and then dismissed the reckless driving summary. Therefore any subsequent prosecution based on the same reckless driving offense is barred by the double jeopardy clause. The Commonwealth would necessarily have to attempt to prove conduct which constituted reckless driving, to prove that defendant was under the influence of alcohol to a degree which rendered him incapable of safe driving, as essential element of a prosecution for a violation of 75 Pa.C.S. §3731(a)(l). In the instant case, the district justice dismissed the reckless driving charge based on the argument of defendant’s counsel that he was faced with a general versus specific charge and the Commonwealth could only proceed with the specific charge.

The fact that no bill of particulars was filed in the instant case does not affect the application of the test adopted by the Supreme Court in Grady, supra. The court stated in a footnote “[application of the test we adopt today will not depend, as Justice Scalia’s dissent argues, on whether the indictment ‘happens to show that the same evidence is at issue’ or whether the jurisdiction ‘happen[s] to require the prosecution to submit a bill of particulars that cannot be exceeded.’ ” Grady, supra, at n.14.

For the reasons outlined above, we reaffirm our prior order dismissing the complaint and respectfully urge that the appeal be denied.


author: GARDNER, S.J., specially presiding,

text:
    Commonwealth v. Guillorn

      George P. Skumanick, district attorney, for the Commonwealth.

      Thomas J. Hanlon, for defendants.

      February 13, 1991
   GARDNER, S.J., specially presiding,

After a joint non-jury trial, defendants were convicted of several counts of bookmaking. No post-trial motions were filed and defendants were sentenced on November 6, 1990, each order including restitution in favor of the Commonwealth in the amount of $6,223.42. From the judgments of sentence defendants have appealed to the Superior Court.

Pursuant to orders of this court, both defendants have filed identical statements of issues complained of on appeal. These issues include six contentions raised in pretrial motions, all of which have been determined. (See the opinion of this court dated April 20, 1990, and the order of September 28, 1990.)

Only issues presented in post-verdict motions are preserved for appeal. Pa.R.Crim.P. 141(d); Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Perry, 279 Pa. Super. 32, 420 A.2d 729 (1980). Therefore, we do not feel it appropriate to consider further the issues confronted in the pretrial effort.

However, defendants have made timely motions for reconsideration of sentences which this court denied. The sole ground presented was the imposition in each defendant’s sentence of the full amount of restitution claimed by the Commonwealth, without attempting to prorate the amounts between the two defendants.

“The purpose of restitution is to impress upon the defendant that his or her criminal conduct caused the victim’s loss or personal injury and that it is his or her responsibility to repair the loss or injury as far as possible. ” Commonwealth v. Balisteri, 329 Pa. Super. 148, 478 A.2d 5 (1984). (emphasis supplied)

In our judgment, the evidence revealed that defendants were in business together. They could both be reached at the same telephone number and both placed bets using the same jargon and dealing with the same bettor. Because of this, we were of the opinion that defendants’ liability for restitution was joint and several and that the Commonwealth should not be forced to restrict its collection to the chances of future judgment-proof status of either defendant.

In addition, no authority has been provided this court that denies the power to impose joint liability for total restitution.


author: RAUP, P.J.,

text:
    Hoover v. Amsler
    C. Scott Waters, for plaintiff.

      Joseph Melody, for defendant.
    January 5, 1990
   RAUP, P.J.,

The court must determine the definition of “actual and reasonable expenses of reproducing the charts or records” as it relates to the authority of a hospital to charge a patient or his agent for copying costs under 42 P.S. §6152(a). More specifically, the court must decide whether Geisinger Medical Center is overcharging patients and their agents for reproducing medical records which are necessary for use in litigation.

The underlying case is a medical malpractice lawsuit filed in July 1988. As the patient was a recipient of medical care at the Geisinger Medical Center, which maintained medical records regarding her medical care at Geisinger, the medical records custodian of Geisinger was served with a subpoena and records deposition notice requesting copies of plaintiff’s medical records.

On September 19, 1989, plaintiff’s counsel received a letter from Geisinger, stating that they elected to withhold Ms. Hoover’s medical records pending payment of $145.

On September 25, 1989, plaintiff filed a petition to compel production of Ms. Hoover’s medical records at actual and reasonable cost. The petition is presently before the court.

The relevant statutory provisions are:

“It shall be deemed a sufficient response to the subpoena if the health care facility notifies the attorney for the party causing service of the subpoena ... of the health care facility’s election to proceed under this subchapter and of the estimated actual and reasonable expénses of reproducing the charts or records.” 42 Pa.C.S. §6152(a).
“A patient shall have the right of access to all of his medical charts and records and to photocopy the same for his own use.” 42 Pa.C.S. §6155(a).
“Patient or patient designees shall be given access to or a copy of their medical records . . . the patient . . . may be charged for the cost of reproducing such copies; however, such charges shall be reasonably related to the cost of making the copy.” 42 Pa.C.S. §115.29.
“The hospital shall provide to the patient, or the patient designee, upon request, access to all inf or-mation contained in his medical records, unless access is specifically restricted by the attended physician for medical reasons.” 28 Pa.C.S. §103.22(15).

The court’s first consideration is whether plaintiff’s failure to take depositions within 15 days of the filing of Geisinger’s answer operated as an admission of all the averments, pursuant to Pa.R.C.P. 209. Rule 209 states:

“If, after the filing and service of the answer, the moving party does not within 15 days:
“(a) Proceed by rule or by agreement of counsel to take deposition on disputed issues of fact; or
“(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed, as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within 15 days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.”

Geisinger asserts that under Rule 209, if a petitioner fails to take action under subsection (a) or (b) within 15 days after answer is filed, he is bound by the respondent’s averments of fact. In Maurice Goldstein Co. Inc. v. Margolin, 248 Pa. Super. 162, 166, 374 A.2d 1369, 1371 (1977), the Superior Court held that Rule 209 clearly does not mean this. The Superior Court held that Rule 209 allows a respondent to hurry the proceedings along, instead of having to wait on a petitioner. In order for action to be taken under Rule 209, a rule must be taken by the respondent. Until one of the parties acts as provided by the rule, the court should not act under Rule 209. The respondent’s motion, to hold plaintiff to the facts in the motion documents, is not properly before us.

' The court must now make a determination as to the meaning of the statutory language “estimated actual and reasonable expenses of a hospital to reproduce charts or records.” Pursuant to 42 Pa.C.S. §6152(a), a hospital may respond to a subpoena duces tecum by notifying the attorney for the party causing service of the subpoena, of the hospital’s election to proceed under section 6152 and of the “estimated actual and reasonable expenses” of reproducing the charts or records.

Plaintiff contends that the language of section 6152 limits a hospital to charging the cost of photocopying. To this effect, plaintiff has provided evidence of the prevailing market charges for duplication of records. The respondent hospital contends that the cost can be computed by a formula which would include reference to the salaries of records personnel and records supplies and equipment and general overhead.

There is no Pennsylvania law on the subject. The heart of plaintiff’s argument is that since the hospital already owes a legal duty under 28 Pa. Code §115.1 “to keep medical records confidential, to provide office space, to preserve and maintain records, to have adequate storage space, to preserve equipment, and pay competitive salaries necessary for the overall operation of its medical records department,” the only costs that may be reimbursed by the hospital are the actual costs of reproduction. Furthermore, plaintiff avers that JCAHO standards for Geisinger reveal that medical records have many purposes separate from that of providing access of records to patients under 42 Pa.C.S. §6155(b). Those purposes include:

“To serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment.
“To furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition during the hospital stay, during an ambulatory care of emergency visit to the hospital, or while being followed in a hospital-administered home care program.
“To document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient’s care.
“To assist in protecting the legal interests of the patient, the hospital, and the practitioner responsible for the patient.
“To provide data for use in continuing education and in research.” See JCAHO standard MR.1.2.

Consequently, plaintiff maintains that patients and their agents should not bear the brunt of the cost of maintaining the medical records department whose main purpose is not providing access to patients.

Geisinger claims that the estimated actual and reasonable expenses go to the hospital’s maintenance of a medical records department, including the salaries of the department’s staff. Geisinger asserts that “unlike a commercial copying service, a hospital must invest significant financial resources in providing space for this department, ensuring that adequate measures are taken to preserve, organize and store medical records, in supplying equipment for the personnel who will collect, review and file the information, and in paying competitive salaries for these employees.” Geisinger’s argument continues with a defense of their costs for salaries and equipment costs.

The legislation in question thrusts the court into an unfamiliar role of overseeing the fixing of costs of a service — a function which is usually and best left to market considerations and pressures. Undoubtedly the legislature, in approving the enactment, wished to provide hospitals with a fair compensation for the service they provide in giving to patient-litigants copies of appropriate medical records, while at the same time preventing those institutions from imposing unreasonable fees which would have a chilling effect on the ability of the patient-litigant to pursue legal remedies.

The court can best discharge its responsibility in this case by attempting to refine the statutory definition and to give some guidance to the parties with respect to the manner in which the fees in question should be calculated.

Had the legislature intended to limit hospitals to a medical record fee which would be comparable to the market fees ordinarily charged by photocopy businesses, we believe that the legislature would have chosen language distinct from that which appears in the enactment above. The concept of actual and reasonable expenses must certainly allow the hospital to charge patients who are seeking copies of their medical records a fee which is reasonably related to the actual labor, equipment and supplies which are used by the facility in providing copies of the medical records to the patient. However, the hospital should not be allowed to subsidize other record-keeping functions and responsibilities by charging inflated per page costs to the patient who is seeking a copy of his record. If, in an appropriate case, the hospital were, for example, to be able to demonstrate that two employees work full-time in answering requests of patients for medical records, and that one-third of the record-copying supplies and equipment are attributable to this function, then the salary and benefits of those employees, as well as the proportionate cost of equipment and supplies, together with an appropriate figure for a proportion of supervision and overhead would provide a base figure to be divided by the anticipated number of pages that would be provided to patients in the course of a year. From these figures a formula could rather easily be developed which would, to our mind, meet the limitations envisioned by the legislature. If the hospital had available to patient-litigants the formula by which the fee is computed each year disputes such as this could be avoided.

Plaintiff has indicated that she desires to pursue discovery in order to determine whether the costs being charged by Geisinger Medical Center comply with the statutory standard. It very well may be that the construction which we have articulated in this opinion may avoid the necessity for such discovery. If it does not, however, we believe that plaintiff should have the right to pursue appropriate inquiry through the discovery rules. Since the Geisinger Medical Center is not a party to this action, any costs which are precipitated by plaintiff in the course of such discovery would be ordered reimbursed to the hospital upon request.

ORDER

And now, January 5, 1990, for the reasons set forth in the foregoing discussion, it is hereby ordered and directed that plaintiff’s motion to compel is denied. Plaintiff will be allowed to take discovery on the limited issue defined above.


author: SUBERS, J,

text:
    Nissen v. Nissen

      A. Richard Gerber, for Gerber & Gerber.

      John Blumenthal, for Jacqueline Nissen.

      Lindley M. Cowperthwait, for J. Peter Nissen III.

      Joseph A. Lashinger, for Fox, Differ, Callahan, Ulrich & O’Hara.

      Lawrence F. Flick, for Jacqueline Nissen.
    March 20, 1991
   SUBERS, J,

This case has a long history in this court beginning with an action for divorce. Without retracing all of the steps, the divorce decree was handed down on December 29, 1987 (Corso, J.) and on this same date the adjudication and decree nisi were also handed down. On March 9, 1988, the decree nisi was entered as the final decree. The matter was appealed to the Superior Court of Pennsylvania which affirmed on November 16, 1989: Nissen v. Nissen, mem. op., 570 A.2d 1093 (1989).

During the pendency of the appeal certain funds were placed in restricted account under the control of the attorneys and the court. Following the appellate decision, plaintiff, J. Peter Nissen III, filed a petition for distribution, which was listed for hearing. Prior to the hearing the law firm of Gerber & Gerber, appellants herein, filed a civil action against Jacqueline P. Nissen for counsel fees alleged to be due. From the pleadings appellants allege that the firm began representing Mrs. Nissen in this divorce action on December 29, 1988. A representation letter setting forth the fees for reviewing the files in the hands of Mrs. Nissen’s prior attorney was forwarded. On February 27, 1989, a representation letter was executed by Mrs. Nissen setting forth the financial arrangements between her and the appellant law firm. The complaint also alleges representation of Mrs. Nissen in certain possible criminal matters brought by the Commonwealth of Pennsylvania and also the United States government. Preliminary objections were filed on behalf of Mrs. Nissen.

Appellants, Gerber & Gerber, filed their petition to intervene in the divorce action to assert their claim to an amount of any distribution to Mrs. Nissen in the amount of legal fees claimed in their civil complaint as of 90-19762. The petition to intervene was denied by this court and this appeal followed.

DISCUSSION

Intervention is provided for in Pennsylvania Rule of Civil Procedure 2326 et seq. This rule provides:

“At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if. . .
“(2) Such person is so situated as to be adversely affected by a distribution or other disposition of the property in custody of the court or an officer thereof; or. . .
“(4) The determination of such action may affect any legally enforceable interest of such persons whether or not he may be bound by a judgment in the action.”

As far as number 2 is concerned, the property in question is the money which was held in a restricted account pending the decision of the appeals in this matter. The property simply was the marital residence and a $300,000 bank account at Vanguard Trust Company. The account of $300,000 was funded with the funds of plaintiff, Mr. Nissen, pursuant to an order of June 2, 1989 (Lawrence, J.). Appellants, Gerber & Gerber, allege that the bank account was a result of the efforts of their law firm on behalf of Mrs. Nissen and that they have a right to a portion of this in the form of an equitable charging lien against the property for services rendered to Mrs. Nissen. To establish an equitable charging lien for an attorney it must be shown:

“(1) There is a fund in court or otherwise applicable for distribution on equitable principles;
“(2) The services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid;
“(3) It was agreed that counsel look to the fund rather than the client for his compensation;
“(4) The lien claimed is limited to costs, fees and other disbursements incurred in the litigation by which the fund was raised; and

“(5) There are equitable considerations which necessitate the recognition and application of the charging lien.” See Recht v. Clairton Urban Redevelopment Authority, 402 Pa. 599, 168 A.2d 134 (1961).

Unfortunately appellant does not meet all five requirements for establishing an equitable charging lien. While the fund was created through the order of Judge Lawrence in June 1989, subsequent to appellant’s representing Mrs. Nissen, the amount of the fund was determined by the order of Judge Corso of December 29, 1987 at which time appellants were not representing Mrs. Nissen. In addition, and as an equally important finding as the failure of the creation of the fund, counsel did not agree to look to the fund rather than the client for compensation. They have submitted two fee-agreement letters, dated December 29, 1988 and February 27, 1989, which in no way mention the fund (nor could they mention the fund since it was not in existence until some months after that time). In addition, the lien claimed is not limited to the fees or disbursements incurred in the litigation for the divorce action. At least one-half or more of appellant’s claim is for services rendered in criminal matters in Montgomery and Berks counties and in the United States Court.

It must be pointed out that appellants have no judgment against Mrs. Nissen for counsel fees claimed to be due and that lawsuit is still pending, preliminary objections having been filed on behalf of defendant. Appellants appear to be no more than general creditors. A general creditor has no standing to any fund of the debtor particularly where the general creditor has not obtained a judgment. Appellants have no legally enforceable interest within the meaning of Pa.R.C.P. 2237.4 quoted above. They have no judgment on which they could execute since the matter is still in its preliminary stages in their claim for counsel fees against defendant. At this time appellant has an action pending for breach of contract, unjust enrichment and fraudulent misrepresentation, which action is pending in the Court of Common Pleas of Montgomery County, Pennsylvania. Preliminary objections have been filed to that action. That action is a separate matter completely from this divorce action and to permit appellants to intervene in this action and attempt to establish their claim for counsel fees would unduly complicate the matter and delay the matter even further than it has been delayed.

CONCLUSION

In view of the fact that appellants’ petition to intervene is defective in that it does not meet the requirements of Pa.R.C.P. 2237, sections 2 or 4, and also fails to meet the requirements of establishing an attorney’s charging lien, this court was correct in denying the petition to intervene and our order should be affirmed.

       Montgomery County Court of Common Pleas, no. 90-19762, filed November 8, 1990.


text:
    In re Anonymous No. 41 D.B. 88

      Disciplinary Board Docket no. 41 D.B. 88.
   An excerpted portion of hearing held in the above-captioned matter taken by [A], registered professional reporter and notary public, in and for the Commonwealth of Pennsylvania, on Wednesday, September 28, 1988 at 11 a.m. at the District [ ] Office, Office of Disciplinary Counsel, [ ].

Hearing Committee [ ], consisting of [B], Esq., chairman, [C], Esq., member, and [D], Esq., member.

Petitioner, Office of Disciplinary Counsel, District [ ] Office, [E], Esq., and [F], Esq., assistant disciplinary counsels.

September 28, 1988 —

[D]: Anything else, [respondent]?
[Respondent]: No. I have nothing more.
[E]: No. Nothing further.
Chairman [BJ: We’ll adjourn.
(Whereupon, a recess was had.)
Chairman [B]: We are ready to proceed. The hearing committee has had a chance to confer on this matter. Let me just read the entire determination. “Office of Disciplinary Counsel, petitioner, versus [respondent]. Respondent, no. 41 D.B. 88. Hearing committee determination, verdict and recommendation under another abbreviated procedure.
“And now, pursuant to Rule 201(c)(1) of the Pennsylvania Rules of Disciplinary Enforcement, section 89.181 of the Disciplinary Board rules, following the conclusion of a hearing on the above-captioned matter, the hearing committee announces to the parties to the hearing that the determination is as follows.” We have checked the appropriate blocks. “Violations of the following Disciplinary Rules have been determined: Disciplinary Rule 6-101(A)(3).” And the second block, “Informal admonition.”
“This notice is herewith handed to the parties with the directive that they endorse their decision in regard to it and return to the chairman within five days hereof.” It’s signed by Hearing Committee [ ], dated September 28, 1988. Each of the committee members has signed the determination.

The committee has something that they would like to put on the record.

[D]: Yes. For myself, I merely would like to state to [respondent] we found the technical violation of the rule by virtue of the stipulation between the parties. It’s certainly my opinion that the violation was, at best, de minimus. [Respondent] had an obligation to appear for his client at the call by virtue of the fact that he was not permitted withdraw.

However, the violation caused no harm to his client, nor, in my opinion, having read all the petition responses and reviewed the exhibits, do I feel that the violation holds [respondent] in any less stature as a member in good standing of this bar than it did before. And I certainly would want the record to note that.

[Respondent]: I appreciate your saying that, [D].
[C]: I would like to join in [D’s] statement and also indicate that I think, at best, it is a very technical violation. I see no harm done by the actions. It appears that [respondent] was placed in a very unenviable position of not being able to pursue a case that he believed was supportable before that. And although certainly an attorney has the obligation to appear, it doesn’t appear that there would have been any harm done because the outcome of the case appears to have been a foregone conclusion, considering not being able to proceed. In fact, had [respondent] attempted to proceed, he may have placed his own client in a more difficult sitúation as far as additional costs or the possibility of a lawsuit being filed back against the client.

And as far as the discipline involved, I certainly view the discipline that we recommended to be as less significant or least significant of all the disciplines that we could have. And, frankly, I believe that [respondent] has already received enough understanding of the system to be a disciplinary warning to him. Obviously, going through this process is discipline enough. Although it is not technically set forth as discipline in itself.

As I said, I think it is, at best, a very technical violation of the rule. My decision on this is also based on the stipulation more than on the facts that were involved in the case.

[Respondent]: Thank you, [C].
Chairman [B]: I would simply join my colleagues, members of Committee [ ], in everything that they have said. I don’t know that I need to add anything further. I don’t think that I can say anything more that’s going to make a difference. Except to say that [respondent] was faced with a difficult situation and in a no-win situation, either go before the court and answer to the call and/or than go to trial, having some determination as to the outcome, while taking the course of action which he took.

So, I would certainly join in the statements made by the other two members of the committee.

Is there something further that you would want us to do?

[Respondent]: I have nothing further. Thank you, [B], for what you have said. I want the committee to know that I appreciate what every one of them has said. I understand my position. Thank you.
Chairman [B]: [E] ?
[E]: The only other thing that I wish to point out is in accordance with 89.181(c)(7), the hearing committee is to file a brief summary letter with the Board and it should not be more than two pages long, just capsulizing this proceeding. The form D.B. 43 can either be attached to that letter or if [respondent] is willing to sign that D.B. 43 today, —
[Respondent]: I’ll sign it.
[E]: I’ll, of course, sign it on behalf of petitioner and we can send that form up and then the letter should follow to [the board secretary] shortly thereafter. It’s whichever way the hearing committee would prefer, whether they prefer to join the form with the letter or whether the form goes up ahead of time.
Chairman [B]: So, then what you are saying is we should go ahead and send the form up today?
[D]: And follow with?
[E]: The letter will follow shortly afterwards.
Chairman [B]: Anything else?
[E]: No. I certainly have nothing else.
Chairman [B]: [Respondent]?
[Respondent]: I have nothing. Thank you.
Chairman [B]: This hearing is adjourned. Thank you much, all of you.
(Whereupon, the hearing was adjourned on September 28, 1988 at 11:20 a.m.)

CERTIFICATE

[A], Court Reporter — I hereby certify that the foregoing transcript of the prehearing conference is a true and correct transcription of the stenographic notes taken in the aforementioned hearing.

ORDER

And now, December 9, 1988, the report and recommendation of Hearing Committee [ ] dated October 18, 1988, pursuant to section 89.181 of the Disciplinary Board Rules is accepted, and there being no exceptions filed; it is hereby ordered and decreed, that the said [respondent] of [ ] County, be subjected to an informal admonition by Disciplinary Counsel as provided in Rule 204(a)(6) of the Pennsylvania Rules of Disciplinary Enforcement. Costs are to be paid by the respondent.