author: KELLER, P.J.,

text:
    Wolfinger v. Moats

      Eileen F. Schoenhofen and Michael B. Finucane, for plaintiffs.

      John W. Frey, for defendants.
    January 30, 1990
   KELLER, P.J.,

This action in equity, seeking to permanently enjoin defendants from removing certain trees on the boundary line between the real estate of plaintiffs and defendants, was commenced by the filing of a complaint on January 19, 1990. The complaint inter alia alleged that despite plaintiffs’ requests the defendants began cutting the trees on January 18, 1990 and continued that activity on January 19, 1990. Plaintiffs on the same date presented their petition for a temporary injunction alleging their fear that four trees have been removed; that the damages to the plaintiffs is immediate and irreparable; that granting the injunction will maintain the status quo and would cause less harm to defendants than not granting it would cause plaintiffs. The Honorable John R. Walker issued a decree granting the temporary injunction prayed for, on the condition a bond in the amount of $1,000 be posted by plaintiffs. The decree also ordered defendants to show cause on January 23, 1990 at 10:30 a.m. why a preliminary injunction should not issue during the pendency of the action.

The hearing was held as scheduled. The matter is ripe for disposition.

FINDINGS OF FACT

(1) Plaintiffs’ real estate is located on the north side of U.S. 30 in Guilford Township, Franklin County, Pennsylvania.

(2) The real estate of defendants is also located on the north side of U.S. Route 30 and is immediately to the east of plaintiffs’ real estate.

(3) The two tracts of real estate share a common boundary line.

(4) After defendants purchased their real estate, they advised plaintiffs they desired to remove the 13 trees located near or on the common boundary line.

(5) Defendants desired to remove the trees because they had received complaints from patrons of their restaurant that the tree branches had scratched their vehicles, the trees are very dirty, their roots are raising the macadam driveway and/or parking area, and the fallen pine cones have caused damage to their riding lawn mower.

(6) Plaintiffs objected to defendants’ expressed intention to remove the trees because trees are aesthetically desirable, the patrons of their car wash park under them to dry their vehicles, the trees prevent vehicles from crossing over the properties of plaintiffs and defendáis to get to one or the other place of business, and because they are on the boundary line between the two tracts of real estate. They do not feel monetary damages would adequately compensate them for the loss of the trees.

(7) The trees in question are an unspecified type of evergreen pine tree, 20 to 25 feet high, with diameters of 12 to 15 inches.

(8) The first of the 13 trees is located approximately 85 feet north of U.S. Route 30. The line of. trees extends in a northerly direction for approximately 135 feet.

(9) William A. .Brindle, a registered land surveyor hired and called by plaintiffs, testified that he had examined the real estate here in question on the afternoon of January 19, 1990, and had located the common boundary line of the parties and the location of the trees with reference to the said line.

(10) For convenience in identification of the trees, the court has numbered them from 1 to 13 on the survey.

(11) The first five trees, numbers 1 through 5, had been cut down at the time of his survey of the premises. The stumps of those trees were near the common line but were entirely located on defendants’ real estate.

(12) Proceeding north on the tree line the surveyor found and the survey discloses that trees 6, 7 and 8 encroach on the line and thus constitute line trees.

(13) The trunk of tree 9 is entirely on the property of defendants, but the bark of the trunk on the west side of the tree may touch the edge of the boundary line.

(14) Tree 9 does not encroach on the line and is therefore not a line tree.

(15) Trees 10 through 13 are entirely on the property of defendants.

DISCUSSION

Act no. 1232, P.L. 1869, 68 P.S. 115 provides:

“From and after this date it shall be unlawful for any owner or owners of any undivided interest in timber land within this Commonwealth to cut or to remove, or to cause to be cut or removed, from the said land, any timber trees, without first obtaining the written consent of all co-tenants in. said premises.”

Under the terms of this rather ancient statute the owners of adjacent tracts of real estate own all trees growing on their common boundary line as tenants in common. Tenants in common are prohibited from unilaterally cutting down or removing such commonly owned line trees.

There is a surprising paucity of cases on the subject of line trees in this Commonwealth. In Miller v. Mutzabaugh, 3 Pa. Dist. 449 (1893), the Court of Common Pleas of Perry County relied upon Act no. 1232 of 1869 in concluding the plaintiff could recover damages from the defendant who had cut down a line tree.

Applying the general rules of law governing tenancy in common, we conclude neither adjoining real estate owner may remove a tree growing on a common boundary line. Consequently, in the case at bar, notwithstanding the fact that only inches of the trunks of trees 6, 7 and 8 are on the boundary line between the properties of the plaintiffs and defendants, those trees are jointly owned by plaintiffs and defendants. Therefore, defendants may not remove them.

Plaintiffs contend we should reach a similar conclusion as to tree 9 because the bark of the trunk of that tree touches the boundary line. We do not agree. As noted in Ridges v. Blaha, 520 N.E.2d 980 (Ill. App. 2 Dist. 1988):

“The critical question in this case, then, is whether any portion of the trunk of the elm tree grows on plaintiff’s property . . . ‘The law, according to the latest holdings, is determined by the exact location of the trunk of the tree at the point it emerges from the ground.’ ”

The fact that the bark of tree 9 touches the line is insufficient to create a tenancy in common as to that tree. Trees 1 through 5 and 9 through 13 are the sole property of defendants. They may therefore do with them as they see fit.

DECREE

Now, January 30, 1990, the preliminary injunction entered January 19, 1990 is continued in effect as to trees 6, 7 and 8, and defendants shall refrain from cutting down and removing them or from cutting any branches of said trees overhanging the real estate of plaintiffs.

The preliminary injunction of January 19, 1990 is dissolved as to trees 1 through 5 and 9 through 13. This dissolution of the injunction as to these trees shall not be construed to grant, lease or license to defendants to enter upon the real estate of plaintiffs.


source: Caselaw Access Project

author: LABRUM, J.,

license: Public Domain

text:
    Mericle v. Wolf

      John J. Robinson, for plaintiff.

      Gary C. Bender, for defendants John G. Wolf and Marianne Wolf.

      Murray S. Eckell, for defendant Sacred Heart Hospital.
    January 5, 1989
   LABRUM, J.,

The court granted a partial summary judgment in this matter in favor of defendants, and plaintiff appealed to the Superior Court.

The complaint in this matter alleged that plaintiff, as tenant and lessee of the first-floor store of real estate located at 2701 West Ninth Street, Chester, Delaware County, Pennsylvania had a right of first refusal to purchase the property if the property was to be sold. The rider to the subject lease provided that the lessor (defendants. Wolf) agreed to provide the lessee with first refusal at the buyer’s price if the property was to be sold. On December 3, 1987, plaintiff filed the subject complaint alleging that the subject property was transferred to defendant Sacred Heart Hospital in violation of plaintiff’s right of first refusal. Plaintiff sought to set aside the deed transfer and sought money damages and other relief from the court.

Summary judgment is required when a party is entitled to judgment as a matter of law and there is a clear absence of genuine factual issues. Hower v. Whitmark Associates, 371 Pa. Super. 443, 538 A.2d 524 (1988). In the present case, the rider to the Wolf-Mericle lease provided that plaintiff would have the right of first refusal to purchase the subject property at the buyer’s price if the property was to be sold. On or about October 26, 1987, defendants Wolf transferred the subject property by gift to Sacred Heart Hospital. The record contained a copy of the deed transferring the property and indicating a consideration for the transfer of $1 and a copy of the settlement sheet showing the nominal consideration as stated. According to the affidavit filed in the pleadings, the intent of the transfer was to make a gift of the property to Sacred Heart Hospital and no further consideration or market bargaining was involved in the transfer. Defendants took the position that because the transfer of the subject property was by gift, plaintiff’s right of first refusal never took effect. The transfer by gift did not equate to a sale for the purpose of plaintiffs’ right of refusal. The court agreed with this position by the granting of the partial summary judgment.

The rider to the lease between the parties provided, inter alia:

“Lessor agrees ... to give lessee first refusal at buyer’s price if property is sold.”

It was undisputed that the property was transferred by gift not sold. There was no market purchase price involved whatsoever in the transaction!

Although no Pennsylvania appellate court has addressed the issue of a gift constituting a sale for the purpose of triggering a right of first refusal, it is axiomatic that the law of contracts can be applied to resolve the issue. A lease is a contract and is to be interpreted according to contract principles. Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986). The parties have the right to make their own contract and it is not the function of the court to rewrite the contract or to give it a construction in conflict with the accepted and plain meaning of the language used. Greene v. Oliver Realty, 363 Pa. Super. 534, 526 A.2d 1192 (1987). In Isaacson v. First Security Bank of Utah, 511 P.2d 269 (Idaho 1973), the Idaho Supreme Court, in deciding whether a transfer by gift from a father to son of property subject to a right of first refusal engaged the right of first refusal, held the transaction did not amount to a “sale” for purposes of triggering the right of first refusal since the transfer was not an open market sale resulting from arm’s length dealings. In Prince v. Elm Investment Co. Inc., 649 P.2d 820 (Utah 1982), the Utah Supreme Court indicated that, for purposes of the right of first refusal:

“[A] ‘sale’ occurs upon the transfer (a) for value (b) of a significant interest in the subject property (c) to a stranger to the lease (d) who thereby gains substantial control over the leased property.”

In the lease before this court, the right of first refusal was provided to the lessee “at buyer’s price if property is to be sold.” This language indicates an intent on the part of the parties that the right of first refusal would come to play upon the exchange of consideration or at the “buyer’s price.” When the situation occurred whereby the property was not transferred for money or at the buyer’s price, but was instead transferred by gift, the right of first refusal never came into effect. As a result, plaintiff had no claim of entitlement or right to exercise the right of refusal and as such his requests for relief were without merit. For the foregoing reasons, the partial summary judgment was entered in favor of defendants.


author: TAXIS, S.J.

text:
    Black Estate

      James R. Ledwith, for Glenmede Trust Company.

      John G. Shea, for settlor.

      Richard L. Grossman, guardian and trustee ad litem.
    July 30, 1990
   TAXIS, S.J.

On September 5, 1989, the court audited the trust Frances Pew Black, now Frances Pew Hayes, established by deed of trust on January 31, 1959, as amended on November 8, 1988. Contemporaneously with the petition for adjudication filed by the trustee, the settlor filed with the court a petition to change situs or, in the alternative, to terminate the trust. After the appointment of a guardian and trustee ad litem on September 29, 1989, a hearing was held on March 19, 1990, on the settlor’s petition for change of situs or termination of the trust. A motion for nonsuit on the issues of change of situs and termination of the trust has been filed by Glenmede Trust Company.

At the hearing, Mrs. Hayes, the settlor, testified that she is currently a resident of the State of Florida, she has a good working relationship with a trust company in Florida which has handled her personal financial affairs, and that she would like the same trust company to handle the affairs of the instant trust as its trustee. In addition, she expressed her dissatisfaction with Glenmede Trust Company on a personal level, relating that she is unhappy with them because they don’t consult her about the administration of the trust, and just send her papers to sign instead.

Section 725 of the Probate, Estates & Fiduciaries Code, 20 Pa.C.S. §725, gives the court the power to change the situs of a trust when it finds “the change necessary or desirable for the proper administration of the trust.” In all but two of the cases in which the courts have been called upon to order a change of situs, all of the interested parties have agreed that the change is “necessary or desirable.” The court involved granted the petition for change of situs in one of the two contested cases, and denied it in the other.

Carr Estate, 5 D.&C. 3d 359 (1977), is the case in which the contested petition for change of situs was granted. A review of the facts clearly explains the reasons for the court’s decision. The party opposing change of situs in Carr Estate was the corporate trustee. This trustee, however, had been removed by petitioners under a discretionary power of removal granted them in the deed of trust. All of the other interested parties, including the successor corporate trustee, agreed to the change of situs. Furthermore, none of the beneficiaries were residents of Pennsylvania; all of the trustees lived in North Carolina, the requested situs for the trust; and two-thirds of the trust assets were North Carolina municipal bonds.

Parriott Trust, 48 D.&C. 2d 597 (1969), is the case in which a contested petition for change of situs was denied. The facts of Parriott Trust are similar to those in the case at hand. In both cases, the settlor and life tenant, who had no administrative or management responsibilities, requested the change of situs of a trust to her state of domicile. Such request came after many years of proper administration by the corporate trustee. In Parriott Trust, the court stated that a change of situs “is not a matter to be taken lightly but one which must be carefully considered by the court and all aspects of such a change carefully reviewed.” Id. at 601. The Parriott court refused to change situs because the change offered no advantages for proper administration, and, therefore, it was neither necessary nor desirable. The report of the guardian and trustee ad litem was given great weight by the court in reaching its decision.

None of the cases dealing with change of situs discuss the requisite burden of proof. Because change of situs by necessity requires the removal of a trustee, a party requesting change of situs should not be held to a lesser burden of proof than one requesting the removal of a trustee. A party requesting change of situs, therefore, must present clear and convincing evidence that change of situs is necessary and desirable in order to meet its burden of proof on a petition for change of situs. See In re Estate of Croessant, 482 Pa. 188, 393 A.2d 443 (1978).

In the instant case, the settlor did not meet this burden of proof. The only evidence presented related to settlor’s dissatisfaction with the present trustee on a personal level and her personal liking of the proposed successor trustee in Florida. This evidence in no way satisfied the requirements of section 725 of the PEF Code which call for clear and convincing evidence that change of situs is necessary and desirable. As the Parriott court so aptly stated, “under the statute ... a change [of situs] shall not be made to satisfy the mere whim or caprice of a party in'interest.” Parriott Trust at 601. A change of situs, therefore, would be inappropriate in the instant case.

Settlor’s petition alternatively requests the court to terminate the trust. The grounds for termination set forth by settlor are that the trustee should have consented to settlor’s revocation of the trust.

A settlor of an inter vivos trust may exercise a reserved power of revocation only in the manner set forth in the trust document. Damiani v. Lombasco, 367 Pa. 1, 79 A.2d 268 (1951). “Where the exercise of a reserved power is made dependent upon the acquiescence of a trustee other than the settlor himself, the procurement of such acquiescence is necessary to enable the settlor to act.” Id. (citations omitted) A trustee granted discretionary power of this sort cannot be compelled to terminate the trust. Id. Furthermore, “[t]o the extent to which discretion is conferred upon the trustee, the exercise of the power granted is not subject to the control of the court, except to prevent an abuse by the trustee of her discretion.” Id.

At the hearing on settlor’s petition, she presented no evidence that the trustee abused its discretion by withholding its consent to the termination of the trust. Without such evidence, the court is obligated to find that the trustee acted appropriately when it refused its consent.

For the foregoing reasons the court enters the following

DECREE NISI

And now, July 30, 1990, it is hereby ordered that Glenmede Trust Company’s motion for nonsuit is granted. This decree shall become final unless exceptions to it are filed within 20 days from the date of this decree.


author:
KELLER, Member,
     MUNDY, Member,

text:
    In re Anonymous No. 95 D.B. 85
    Disciplinary Board Docket no. 95 D.B. 85.
    August 26, 1987
   Report of the Disciplinary Board of the Supreme Court of Pennsylvania:

KELLER, Member,

Pursuant to Pennsylvania Rules of Disciplinary Enforcement 208(d)(2)(iii), the Disciplinary Board of the Supreme Court of Pennsylvania herewith files its report with respect to the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

This matter was heard before Hearing Committee [ ] on a petition for discipline filed by petitioner on

December 18, 1985. The petition charged respondent with the following violations of the' Code of Professional Responsibility:

(1) D.R. 1-102(A)(3) — illegal conduct involving moral turpitude;

(2) D.R. 1-102(A)(4) — conduct involving dishonesty, fraud, deceit and misrepresentation;

(3) D.R. 1-102(A)(6) — conduct that adversely reflects on fitness to practice law;

(4) D.R. 9-102(A) — improper maintenance of clients’ funds;

(5) D.R. 9-102(B)(1) — lack of prompt notice to client concerning receipt of client funds;

(6) D.R. 9-102(B)(3) — improper maintenance of accounts of funds of client; and

(7) D.R. 9-102(B)(4) — prompt payment of clients’ funds.

Respondent filed an answer to the petition on January 21, 1986 and the case was heard before Hearing Committee [ ] on May 19, 1986 and June 26, 1986.

STIPULATION OF FACTS

The facts herein have been stipulated to by the parties and stand as follows:

(1) Petitioner, whose principal office is situated at Commerce Building, 300 N. Second Street, Harrisburg, Pennsylvania, is invested pursuant to rule 207 of the Pennsylvania Rules of Disciplinary Enforcement with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

(2). Respondent was admitted to practice law in the Commonwealth of Pennsylvania on or about April 20, 1977. His office is located at [ ].

(3) Respondent also operated a business known as [A], a [ ] corporation.

(4) Respondent was in the business of negotiating contracts on behalf of individuals or organizations which sought to present programs of entertainment with entertainers or their agents.

(5) In certain of his correspondence and communications with such individuals, organizations, and agents for performers, respondent identified himself as an attorney and utilized his law office letterhead stationery and facilities.

(6) In or about August 1983, respondent entered into an agreement with [B] to provide for a [B] fund-raising event scheduled for February 29, 1984 the services of [C], a comedienne, and [D], a musician.

(7) [B] agreed to pay respondent $10,000 for the services of [C] and [D].

(8) Under respondent’s agreement with [E], which manages [C], respondent was to pay $2,250 to [C] from the [B] payment, as confirmed by correspondence of August 10, 1983 and November 25, 1983 and agreement of November 30, 1983.

(9) Respondent also reached an agreement with [F], which manages [D], to pay $4,500 for his services, sent to [F] under cover of a letter of January 23, 1984.

(10) From the $10,000 paid by [B], respondent was to receive $3,250 for his costs and fee and $6,750 was due to [C] and [D].

(11) A check dated November 15, 1983 in the amount of $3,125 issued by [B] was sent to respondent in November 1985.

(12) Under cover of the November 25, 1983 letter respondent sent to [E] an Artists Personal Service Agreement dated November 30, 1983 setting forth the terms of the agreement and a check for $3,125 drawn on the attorney account dated November 15, 1983.

(13) During the period from October 1983 to October 1984, respondent maintained the following bank accounts: [G] Bank of [ ] account no. [ ]; [H] account no. [ ]; [H] account no. [ ].

(14) None of these accounts is an escrow account as defined in D.R. 9-102(A).

(15) The $3,125 check from [B] was negotiated.

(16) In or about November 1983, respondent was retained by the [I] in [ ], to arrange the appearance of the [J], a musical group, at a concert scheduled for March 24, 1984.

(17) Respondent contacted [K], of [L], in [ ], to inquire as to the availability of the [J], which is managed by [L].

(18) [K] advised respondent of the availability of the [J] for this engagement.

(19) Respondent entered into an agreement with [I] providing for a fee and costs of $6,500 for the March 24, 1984 booking, confirmed by a letter dated December 2, 1983 to [M] of [I], sent under cover of a letter of same date.

(20) Respondent’s fee for providing the services of the [J] was $2,500.

(21) By letter dated December 2, 1983 respondent forwarded to [K] an Artists Personal Service Agreement for the [I] engagement, providing for compensation in the amount of $4,000 to the [J].

(22) In the letter respondent advised [K] that “as well as being an attorney representing many entertainers and entertainment concerns,” he also engaged in “booking, consulting, and promoting entertainers.”

(23) A copy of the executed agreement was returned to [I] under cover of a handwritten notice from respondent.

(24) A check dated December 9, 1983, in the amount of $4,500, payable to [A], was issued by [I] in partial payment for the March 24, 1984 booking and forwarded to respondent.

(25) On or about December 12, 1983 respondent opened account no. [ ] at [H], captioned “[Respondent], Attorney at Law” (hereinafter “the attorney account”).

(26) Respondent endorsed the $4,500 check from [I] “[Respondent], Attorney-at-Law for [A].”

(27) On December 12, 1983 respondent deposited into the attorney account the check in the amount of $4,500 received from [I] for the [J] program.

(28) Respondent drew a check on the attorney account dated December 9, 1983 in the amount of $1,125, payable to [C], which was transmitted to [E].

(29) The aforesaid check cleared the account on January 5, 1984.

(30) [B] sent to respondent a check in the amount of $6,875 dated January 20, 1984 payable to “[Respondent], Atty.-at-Law.”

(31) On January 23, 1984, respondent deposited the $6,875 check into the attorney account.

(32) The [B] agreement was confirmed by letter from respondent to [N], the organizer, dated January 23, 1984.

(33) Respondent issued a check in the amount of $2,250, dated January 23, ■ 1984, on the attorney account to [F] toward [D’s] fee.

(34) Respondent transmitted the check to [F] under cover of a letter dated January 23, 1984, which also contained an Artists Personal Service Agreement.

(35) The agreement, dated January 23, 1984, is executed by respondent’s signature over the words “Purchaser — [Respondent], Esquire for [B].”

(36) Respondent issued a check, on the attorney account dated February 27, 1984 to [F] in the amount of $2,250, representing the balance of the funds due to [D].

(37) Respondent transmitted the check to [F] under cover of a letter dated February 27, 1984.

(38) The check cleared the account on March 2, 1984.

(39) On or about February 29, 1984 respondent issued a check to [E] in the amount of $1,125 representing the balance of the funds due to [C].

(40) The [J] performed a concert on behalf of [I] on March 24, 1984, as agreed in the contract.

(41) On March 25,1984 a check payable to respondent, dated March 23, 1984, in the amount of $2,000, representing the balance due on the [J] agreement, was transmitted to respondent by [I].

(42) On March 28, 1984, respondent endorsed and deposited the $2,000 check from [I] in the attorney account.

(43) Respondent has not paid to [L] or to the [J] any portion of the $4,000 due to them for the services performed.

(44) Respondent was contacted on several occasions by [L] and its counsel demanding the funds due.

• (45) On September 5, 1984 a letter of inquiry was sent to respondent by petitioner concerning his alleged failure to remit funds due to the [J].

(46) In response thereto, by letter dated October 19, 1984, respondent, through counsel, stated: “[H]e has arranged a satisfactory schedule with repayment. . . . He has arranged to see that that money is paid.”

(47) Thereafter, although an agreement was reached, respondent failed to carry out his obligations to make restitution to the [J] thereunder.

(48) Judgment -has been entered against respondent in the suit brought by [L] and remains unsatisfied.

(49) Respondent stipulates to the authenticity of petitioner’s exhibits 1 through 61, and waives objection to their introduction on grounds other than relevancy or accuracy of computations.

(50) [K] would testify to the facts set forth in paragraphs 51 through 69 hereinbelow and identify the specified exhibits if he appeared as a witness at the heáring of the petition for discipline in no. 95 D.B. 85:

(51) He is involved in theatrical management in [ ], in a company known as [L].

(52) Among the groups managed by him is the [J].

(53) In or about November 1983, respondent contacted [K] by telephone to inquire as to the availability of the [J] to appear at a [I] program in March 1984.

(54) As [K] had never met or heard of respondent he asked him to identify himself.

(55) Respondent stated to [K] that he was an attorney, that he had been in practice for a number of years and was extensively involved in the entertainment business.

(56) [K] ascertained the availability of the [J] for this engagement and so advised respondent during this conversation.

(57) Respondent asked [K] whether he insisted upon a deposit for the engagement.

(58) Because respondent represented himself to be an attorney and because he was acting as agent for a college [K] advised that he did not feel that under the circumstances it would be necessary to have a deposit.

(59) Respondent utilized his law office address and telephone number in the [ ] Building in his dealings with [K].

(60) Under cover of a letter dated December 2, 1983 respondent forwarded to [K] a document titled “Artists Personal Service Agreement” dated December 12, 1983.

(61) [K] returned an executed copy of the agreement to respondent.

(62) Pursuant to the agreement between [K] and respondent, respondent was to pay for the services of the [J] on the night of their engagement.

(63) Respondent did not pay the [J] on that night and did not forward to [K] the fee for their services at any time thereafter.

(64) Respondent did not advise [K] of his receipt of payment from [I] for the services of the [J].

(65) [K] never gave respondent permission to utilize the funds due to the [J] for any purpose other than immediate payment to [K].

(66) Personnel in [K’s] office contacted respondent on several occasions to attempt to obtain the funds due.

(67) Respondent failed to deliver the funds upon demand.

(68) [K] and the [J] have never received from respondent the $4,500 due to them.

(69) [K] has retained Pennsylvania counsel to institute suit against respondent to obtain the funds.

CONCISE STATEMENT OF THE CASE

Respondent does not dispute that the monies he received from both contracts were deposited into either attorney accounts or general business accounts and commingled with other funds of respondent’s legal and entertainment booking practices. The hearing committee also found it undisputed that the funds due the [J] under the [I] contract were never paid and are still owing.

CONCLUSIONS OF LAW

The application of the code’s Disciplinary Rules in the instant matter must be strictly confined to the activities of respondent which impinged upon his stature as a member of the bar. The record as established by the hearing committee and the parties’ stipulations shows the respondent received funds from [B] and [I] as a booking agent, not an attorney, and it was in this capacity as a booking agent that respondent deposited the monies in a non-escrow attorney account thereby commingling the funds with other business or attorney funds. Moreover, we cannot conclude that the relationship between respondent and [L] consisted of a fiduciary obligation on behalf of respondent to [L], and therefore, governed by the provisions of the Disciplinary Rules.

Taking the foregoing into consideration, we fail to find any violation by respondent of:

(1) D.R. 9-102(a) — improper maintenance of client funds.

(2) D.R. 9-102(B)(l) — lack of prompt notice to client concerning receipt of clients funds.

(3) D.R. 9‘-102(B)(3) — improper maintenance of accounts of funds of clients.

(4) D.R. 9-102(B)(4) — prompt payment of clients’ funds.

Simply put, respondent and [L’s] relationship was not one between an attorney and his client and thus lacked the element of fiduciary responsibility required of an attorney to his client and necessary for the application of the preceding rules.

As to the other allegations that respondent violated D.R. 1-102(A)(3), (4) and (6), the hearing committee applied an agency standard in finding the existence of a fiduciary duty which naturally arises between an agent and a performer (or the performer’s representative). In affirming the committee’s application of D.R. 1-102(A)(4) and (6), we are mindful that there exists a fine line between a lawyer’s actions and those of a private individual when the activity involved is unrelated to that lawyer’s practice of law. We conclude that respondent demonstrated certain improprieties in his dealing with [B], [I] and [L]. Due to the very nature of respondent’s entertainment business, it is difficult to overlook his status as an attorney when reviewing the circumstances of the aforementioned transactions.

RECOMMENDATION

The Disciplinary Board has determined that respondent, [ ], be given a private reprimand. In reaching this decision, the board is cognizant that the hearing committee recommended a public censure accompanied by a one-year probationary period for respondent’s violation of D.R. 1-102(A)(4) and (6). By imposing the lesser discipline of a private reprimand, the board again acknowledges the fine-line distinction between the actions of an attorney and those of a private citizen concerning the business conducted in the instant matter. The board believes that the experience respondent has attained from the proceedings herein coupled with the assessed discipline conveys a forceful message to him as to the proper, ethical conduct demanded of a member of the bar of this Commonwealth.

Pursuant to rule 208(g)(2) of the Pennsylvania Rules of Disciplinary Enforcement, the respondent is directed to pay the costs incurred in the investigation and prosecution of this matter.

Mr. Schwartzman dissents and would dismiss the charges.

Mr. Mundy dissents and would recommend disbarment.

Messrs. McDonald, McGinley and Tumolo did not participate in the adjudication.

DISSENTING OPINION

MUNDY, Member,

August 26, 1987 — In my view, respondent is guilty of an egregious infraction of the Code of Professional Responsibility and is, therefore, deserving of a substantially greater measure of discipline than the private reprimand urged by my colleagues. I must, therefore, dissent.

This is not simply a case where an attorney did not pay a debt nor is it just a matter of failing to fulfill the fiduciary obligations of an agent. The undisputed facts in this case are that respondent accepted monies ($4,000) from one party ([I]) to be paid to another ([J]) for which service respondent was to be paid a fee ($2,500). Instead, respondent converted the entire $6,500 to his own use. The monies were used in part to pay off a pre-existing obligation which had arisen under similar circumstances wherein respondent had failed to meet obligations he had contractually undertaken on behalf of the [B],

The hearing committee, as well as the majority of the board, found that an attorney-client relationship did not exist with respect to these transactions, and thus, dismissed those allegations in the petition for discipline, which refer directly to the parameters of proper conduct within the attorney-client context. They did find, however, that respondent was guilty of conversion, a most serious infraction of the Code of Professional Responsibility.

After a careful examination of the authorities presented to it in briefs filed by both sides, the hearing committee, in its well reasoned report, found that respondent had violated D.R. 1-102(A)(4), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation; and D.R. 1-102(A)(6), which prohibits an attorney from engaging in any other conduct that adversely reflects on his fitness to practice law. These findings were accepted by the majority of the board. I would add the finding that respondent is also in violation of D.R. 1-102(A)(3) which prohibits an attorney from engaging in illegal conduct and moral turpitude. The knowing, willful and purposeful taking of monies which belong to another constitutes a per se violation of these rules.

Both the hearing committee and the majority of the board concur in the findings of fact and conclusions of law regarding conversion. The issue in dispute is the appropriate measure of discipline to be recommended in this matter. The hearing committee recommended a public censure by the Supreme Court to be followed by a one-year probation. The majority of the board has recommended that respondent be given a private reprimand. It is my view that neither recommendation is truly reflective of the magnitude of respondent’s offense.

A review of the case law shows that the Supreme Court has found conversion to be a most egregious offense justifying the disbarment of the perpetrator. Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982); Office of Disciplinary Counsel v. Kissel, 497 Pa. 467, 442 A.2d 217 (1982); Matter of Leopold, 469 Pa. 384, 366 A.2d 227 (1976); Matter of Greene, 470 Pa. 164, 368 A.2d 245 (1977); Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981); Office of Disciplinary Counsel v. Herrmann, 475 Pa. 560, 381 A.2d 138 (1977). In each of those cases, however, the conversion was committed within the lawyer-client context. Both the hearing committee and the board determined that the absence of a lawyer-client relationship provides a sufficient basis for distinguishing the instant case from those cited.

In effect, it is contended that because respondent’s status as a lawyer was incidental to, rather than essential to, the transaction which led to the conversion, a lesser penalty is appropriate. Since, arguably, the [J] placed their confidence in respondent in his capacity as a booking agent rather than because he was a lawyer, it is claimed that respondent’s misconduct does not extend to the public’s perception of and confidence in the legal profession.

On the other hand, it is clear from the record that respondent did indeed hold himself out as an attorney in this transaction. In fact, he made his status as an attorney known to the agent representing the [J] before the agent agreed to a contract which provided no security in the form of an escrow or deposit. Respondent’s reference to his profession clouds the issue considerably. If this reference was intended to induce a higher degree of confidence that the terms of the contract would be fulfilled, it can hardly be claimed that respondent’s misconduct did not harm the reputation of the bar generally.

Taken in its best light, I find little merit in this argument. Conversion cannot be excused, nor its effect lessened, simply because the respondent was not wearing his “lawyer’s hat” when the conversion took place. The circumstances may be distinguishable, but the difference is negligible.

I join with the hearing committee in being “extremely troubled by the fact that full restitution has not been made.” Hearing Committee Report at 18. Respondent’s failure to attempt to restore the monies he converted is indicative of a lack of remorse and, in my opinion, belies the majority’s assertion that “the experience respondent has attained from the proceedings herein, coupled with the assessed discipline, conveys a forceful message to him as to the proper, ethical conduct demanded of a member of the bar of this Commonwealth.” Majority opinion at 241.

Except for the fact that respondent’s actions were outside the course of a lawyer:client relationship, the instant facts are quite similar to those in Matter of Leopold, supra. In that case, respondent had been “advanced” the sum of $5,500 by a client to be held in escrow against a potential claim of another. In this case, respondent was entrusted with a sum of money to be paid to another. In Leopold, as here, respondent, after converting the monies for his own use, made no attempt at restitution. This circumstance was not overlooked by the Supreme Court in disbarring Leopold:

“[Petitioner had no legal claim to the possession or use of the funds beyond the terms agreed to with his client. Here we find it appropriate to emphasize that this petitioner’s failure to make any recognizable effort to restore the misappropriated funds to his former client smacks of an irremissible indifference to his legal obligations.” Leopold at 398, 366 A.2d at 234.

In my view, respondent in this case is no less deserving of the same measure of discipline as rendered by the Supreme Court in Leopold. I recommend that respondent be disbarred from the practice of law.

ORDER

And now, August 26, 1987, upon consideration of the report and recommendation of Hearing Committee [ ] dated January 9, 1987; it is ordered and decreed, that the said [respondent] of [ ], be subjected to private reprimand by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in rule 204(a)(5) of the Pennsylvania Rules of Disciplinary Enforcement at the next session of this board. Costs are to be paid by the respondent.

      . “A lawyer shall not:. . .
      “(3) engage in illegal conduct involving moral turpitude.
      “(4) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. . .
      “(6) engage in any other conduct that adversely reflects on his fitness to practice law.”

      . Although not specifically applicable to the attorney/ client relationship, the committee properly rejected D.R. 1-102(A)(3) due to the fact that respondent’s conduct herein was by no means an illegality involving moral turpitude.

      . Respondent admittedly commingled all the funds which he received and, thus, was accused in the petition for discipline of the following violations:
      (1) D.R. 9-102(A) — improper maintenance of client funds.
      (2) D.R. 9-102(B)(l) — lack of prompt notice to client concerning receipt of client’s funds.
      (3) D.R. 9-102(B)(3) — improper maintenance of accounts of funds of clients.
      (4) D.R. 9- 102(B)(4) — prompt payment of client’s funds.
      The hearing committee and the board concur that since there was no attorney-client relationship, respondent cannot be found guilty of those offenses which relate to commingling.

      . In the contract transmittal letter to the agent representing the [J], respondent stated that he was “an attorney representing many entertainers and entertainment concerns.” Board finding of fact no. 22.


author: KIESTER, S.J.,

text:
    Lewis v. Merchants National Bank of Kittanning

      Marilyn Horan, for plaintiff.

      Bradley K. Hellein, for defendant.
    March 22, 1988
   KIESTER, S.J.,

Is an appeal from a judgment rendered by a district justice timely filed when it is not accompanied by the correct filing fee?

FACTS

Defendant mailed a notice of appeal to the pro-thonotary. It was received on December 14, 1987 and returned to attorney for plaintiff because it was accompanied by an incorrect filing fee. The correct fee was paid on December 15, 1987 and the appeal was docketed as of that date which was one day beyond the 30-day appeal period.

THE LAW

In general the fees to be received by the protho-notary are fixed by statute. An exception is the fee for the commencement of actions. The General Assembly has provided that annually on or before January 1 the prothonotary of each court of common pleas is required to establish a filing fee of not less than $15 or more than $50. 42 P.S. §21071.

Another Act of Assembly provides:

“(b) The prothonotary shall not be required to enter on docket any suit or action or order of court or enter any judgment thereon or perform any services whatsoever for any person, political subdivision or the Commonwealth until the requisite fee is paid.” 42 P.S. §21073.

What appears to be in conflict with the Act of Assembly is rule 205.2 of the Pa.R.C.P. which states:

“No pleading or other legal paper that complies with the Pennsylvania Rules of Civil Procedure shall be refused for filing by the prothonotary based on a requirement of a local rule of civil procedure or judicial administration.” Adopted December 5, 1985, effective January 1, 1986.

DISCUSSION

Argument and briefs of counsel establish that in Butler County the prothonotary had fixed the filing fee at $40. Defendant had forwarded with the notice of appeal the sum of $25.

The prothonotary elected not to docket the notice of appeal but rather to advise defendant by mail that the filing fee was $40 not $25.

The statute does not mandate that a prothonotary shall reject for filing a pleading that is presented without the requisite fee. Under the Act of Assembly the refusal to enter the pleading on the docket in the absence of the established fee is discretionary with the prothonotary.

Since the filing fee is fixed by a decision of the prothonotary is it to be classified as a requirement of a local rule of civil procedure? If so, under Rule of Civil Procedure 205.2 the prothonotary could not refuse to file it.

The explanatory comment to rule 205.2 has for its purpose the elimination of conflict between statewide Rules of Civil Procedure and local rules. However, neither the rule nor the comment make reference to the statutory non-uniform filing fee requirement. In the absence of a statewide rule of court fixing fees the Judicial Code provides that statutorily fixed fees are in effect. 42 Pa.C.S. §1725. The filing fee requirement is fixed by state law and not by a local rule.

Although the amount of the filing fee is not uniform statewide public notice is given that it is fixed in each judicial district by the prothonotary.

CONCLUSIONS

A prothonotary has no duty to accept for filing a “notice of appeal” without payment of the locally promulgated filing fee. Thus, the burden is placed on a litigant to determine on January 1 of each year the amount of the filing fee required for that year in the particular judicial district.

The 30-day period for appeal is fixed by an Act of Assembly as well as a rule of court. 42 Pa.C.S. §5571; Pa.R.C.P.D.J. 1002.

Timeliness of an appeal is a jurisdictional question. The appellate. courts have ruled that in the absence of' fraud or a breakdown in the court’s operation, the court cannot grant an extension nunc pro tunc of the period for appeal.

In the instant case the litigant made a mistake by not inquiring of the prothonotary as to the amount of the fee. Such a mistake does not provide the court with a legally recognized ground for granting relief.

Plaintiff’s motion to strike appeal, has the same effect as a motion to quash appeal. A rule was issued and the hearing held on defendant’s motion to reinstate appeal and/or leave to appeal nunc pro tunc. The issue is the same as though the rule and hearing had been on the motion to strike appeal.

ORDER OF COURT

And now, March 22, 1988, plaintiff’s motion to strike appeal is granted and defendant’s motion to reinstate appeal and/or for leave to appeal nunc pro tunc is denied.


author: SUBERS, J.,

text:
    Sentry Insurance Co. v. Feldman

      John Gerald Devlin, for plaintiff.

      Simon J. Denenberg, for defendants.
    August 3, 1990
   SUBERS, J.,

Three appellants appeal from the court order entered in a dispute with their insurer. These three cases present the same issue as to whether the court properly ordered the appellants to submit to an independent medical and dental examination. We begin this opinion with a discussion of the factual background behind the parties’ dispute.

Appellants, Stanley, Rosalind and Andrea Feld-man, were involved in an automobile accident on June 18, 1989, near Haverford Township, Delaware County, Pennsylvania. The appellants made claims for medical payments pursuant to an insurance policy issued by the appellee-insurer. On January 18, 1990, appellee filed three petitions against each appellant for independent medical examinations pursuant to Pennsylvania Motor Vehicle Financial Responsibility Act, 75 P.S. 1796. Appellants answered these petitions on February 20, 1990.

The parties in this case have waived oral arguments. On April 16, 1990, upon a review of the submitted memoranda of law, this court issued three orders granting appellee’s petition with respect to each appellant, and requiring the appellants to submit to independent medical and dental examinations. Appellants now appeal from these orders.

ISSUE

Did the court err in granting a petition to compel an independent medical examination pursuant to section 1796 of the Pennsylvania Motor Vehicle Financial Responsibility Act?

DISCUSSION

Appellants contend that this court erred when it ordered them to submit to independent medical and dental examinations. We disagree. Title 75 Pa.C.S. §1796 is the relevant statute and provides as follows:

“(a) General Rule — Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. . .”

The standard for determining whether there is good cause for requiring an insured to submit to an independent medical examination is found in State Farm Mutual Automobile Insurance Company v. Zachary, 370 Pa. Super. 386, 536 A.2d 800 (1987). The court in Zachary revealed its concern that an insured would be forced to submit to an unnecessary physical examination by an overzealous insurer. The court held that to prevent such undue influence the averments contained in the petition must rise to a level of specificity so as to ensure that the claimant will not be forced to submit to unnecessary examinations sought in bad faith: Id. at 390, 536 A.2d at 801; State Farm Insurance Co. v. Hunt, 390 Pa. Super. 620, 569 A.2d 365 (1990).

The level of specificity required of a petition under 75 Pa.C.S. §1796 necessitates that the insurer make the following allegations: (1) insured’s proofs supplied in support of the claim are inadequate; (2) the proposed physical examination will substantially assist the insurer in evaluating the claim; and (3) the amount of the claim justifies a court order compelling the claimant to submit to a physical examination. Nationwide Mutual Insurance Co. v. Fandry, 12 D.&C. 3d 65 (1979).

In the case at bar, petitioner exercised good faith in requesting that the insureds submit to medical and dental examinations. The insured’s proofs supplied in support of the claim are inadequate. Appellee alleges in each petition that, although appellants report that they suffered injuries from the accident, the nature of the injuries were unknown to appellant, Furthermore, there is no medical opinion as to the cause of any of the appellants’ injuries.

The proposed physical examination will substantially assist the insurer in evaluating the appellants’ claims. In the present case, it appears that all three appellants have suffered soft-tissue injuries and are currently undergoing treatment. An independent medical examination will substantially assist the insurer to first, identify the nature of appellants’ injuries and, second, evaluate the reasonableness of their claims.

The amount of the claim in this case justifies a court order compelling the claimants to submit to a physical examination. Appellee has been presented with a substantial claim in that the appellants have already received seven months of medical treatment. Additional medical care may be necessary because it is not yet known whether any of the appellants have sustained permanent injuries.

CONCLUSION

The intent of appellee in petitioning for independent medical examinations is not to harass the appellants, but to evaluate the reasonableness of their claims. The decision of this court was proper and should, therefore, be affirmed.


author: PODCASY, J.,

text:
    Corcoran v. Querci

      Thomas E. Mack and Michael R. Mey, for plaintiffs.

      Timothy J. Holland, for defendant John Querci.
    March 29, 1990
   PODCASY, J.,

Before the court is the motion for delay damages of the above-named plaintiffs.

The matter arises out of an automobile accident which occurred on October 26, 1986, and which resulted in the death of plaintiffs’ decedent, Ada Querci.

The action was commenced by written complaint filed on May 1, 1987. On January 23, 1990, a jury found in favor of plaintiffs against defendant John Querci, solely, in the amount of $28,000.

Plaintiffs have timely filed a petition for delay damages.

After the action was initiated, the parties filed responsive pleadings and by June 22, 1987, less than 60 days after the complaint was filed, the pleadings were closed.

The history of discovery in pretrial proceedings is unremarkable. Depositions of the co-defendants, plaintiffs, Dr. John Querci, and certain trial witnesses were scheduled. Interrogatories and records depositions were exchanged.

On November 12,1987, an offer of settlement was made by defendants in the amount of $22,500. Plaintiffs apparently rejected the proposal and after additional depositions were taken and discovery received, defendant, John Querci, filed a certificate of readiness on or about February 17, 1989. On June 13, 1989 and on June 29, 1989, pretrial conferences were held before the court. Defendants continued their offer of $22,500. Plaintiffs demanded the sum of $100,000.

As aforenoted, the matter proceeded to jury trial and on January 23, 1990, a verdict in the amount of $28,000 was entered against defendant John Querci, solely.

The present petition for delay damages was filed by plaintiffs, seeking an award of $5,915 in delay damages against the said defendant.

The concept of delay damages has been much maligned in this Commonwealth after the inception of Pa.R.C.P. 238.

In Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), our Supreme Court limited the mandatory provisions of rule 238 which assess delay damages against defendants without regard to fault, stating:

“In making a decision on a plaintiff’s entitlement to delay damages, the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties’ respective responsibilities in requesting continuances; the parties’ compliance with the rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors.” Craig, supra at 66, 515 A.2d at 1353.

This court, following the directives of Craig in Roth v. Yonchik, 78 Luzerne Leg. Reg. 27 (1988), found the plaintiffs not entitled to delay damages because the fault in the delay precipitated in the trial process could not be imposed upon the defendant. In the decision, the court refused to impose delay damages notwithstanding the fact that the jury verdict exceeded 125 percent of the settlement offer propounded by the defendants.

However, as a response to the Craig decision, a new rule 238 was promulgated effective November 7, 1988. The relevant provisions of the rule are set forth as follows:

“(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a non-jury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. §7361, and shall become part of the verdict, decision or award.

“(2) Damages for delay shall be awarded for the period of time

“(i) in an action commenced before August 1, 1989, from the date the plaintiff first filed a complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision; or

“(ii) in an action commenced on or after August 1, 1989, from a date one year after the date. original process was first served in the action up to the date of the award, verdict or decision.

“(3) Damages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.

“(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,

“(1) After which the defendant.has made a written offer of

“(i) settlement in a specified sum with prompt cash payment to the plaintiff; or

“(ü) a structured settlement underwritten by a financially responsible entity, and continued that offer in effect for at least 90 days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff; or

“(2) during which the plaintiff caused delay of the trial.”

After the new rule was enacted on November 7, 1988, numerous per curiam decisions of our Superior Court have interpreted its provisions.

The most prevalent issues facing the court are those which occur under subsection (b)(1) and (2) of the rule. The courts have uniformly held that a fair reading of the new rule in subsection (b) leads to the conclusion that where a defendant fails to make a written settlement offer comporting with the rule, and where a plaintiff is found to be free from fault in causing any delay to the normal course of the litigation, a defendant is responsible for the payment of damages for delay where the verdict recovered exclusive of delay damages is in excess of 125 percent of the written settlement offer. Dietrich v. J.I. Case Company, 390 Pa. Super. 475, 568 A.2d 1272 (1990); Schrock v. Albert Einstein Medical Center, 386 Pa. Super. 215, 562 A.2d 875 (1989); Modrick v. B.F. Goodrich Co., 383 Pa. Super. 498, 557 A.2d 363 (1989); King v. Southeastern Pa. Transportation Authority, 383 Pa. Super. 420, 557 A.2d 11 (1989).

The inquiry then is twofold: first, whether defendant has provided a bona fide written settlement offer which is not exceeded by 125 percent of the verdict entered in the litigation; and second,' whether plaintiffs have, by their conduct, delayed the trial proceedings.

Defendant, Querci, in the present matter argues that his settlement offer was within the 125 percent realm of the jury verdict in the amount of $28,000. Defendant contends that the settlement offer aggregated $22,500.

The record fails to disclose whether the settlement offer of $22,500 was tendered by all defendants or by defendant, Querci, individually. The pretrial conference memorandum, completed by former Judge Arthur Dalessandro, indicates that the settlement offer in the amount of $22,500 was from both defendants together. In addition, defendant Querci has not provided this court with evidence that the settlement offer was provided to plaintiffs in writing as is prescribed by rule 238.

The only guidance that we have gleaned from relevant case law occurs in Schrock v. Albert Einstein Medical Center, supra, in which the Superior Court noted that the Medical Center, having been found to be the responsible defendant, tendered a settlement offer in the amount of $10,000. The same was inadequate to relieve them of responsibility for delay damages because the jury verdict entered against them was $25,000. The court ¡examined the offer made by that defendant only in judging the adequacy of the offer.

Thus,- we presently find defendant’s settlement offer to be inadequate under subsection (b)(1) of rule 238.

On the second issue, our review of the record before us does not indicate that the plaintiffs’ conduct has caused the delay of the trial. The court, noting the explanatory comment to rule 238, has stated:

“ [W]ith respect to [plaintiff’s] delay of the trial, not every procedural delay is relevant to the issue of delay damages, but only such occurrences as actually cause delay of the trial. ’ ” Schrock v. Albert Einstein Medical Center, supra at 219, 562 A.2d at 876. (emphasis in original)

The Schrock court noted that failure of the plaintiff to make a conservative settlement demand should not be held to have prolonged the trial or to impose the burden of the delay on the plaintiffs. Modrick v. B.F. Goodrich Co., supra.

In conclusion, we find defendant Querci has not made an adequate settlement offer under and pursuant to rule 238(b)(1). We also find that plaintiffs have not caused delay of the trial. Thus, there is sufficient basis to award plaintiffs delay damages in the amount of $5,915 as prescribed by Pa.R.C.P. 238(a)(2)(i) and (a)(3).

Accordingly, we enter the following

ORDER

It is hereby ordered, adjudged and decreed as follows:

(1) Plaintiffs’ petition for delay damages is granted;

(2) Plaintiffs are awarded the sum of $5,915 in delay damages pursuant to the provisions of Pa.R.C.P. 238(a)(2)(i) and (a)(3), which sum shall be added to the jury verdict entered against defendant John Querci; and

(3) The prothonotary is directed to mail notice of entry of this order to all counsel of record pursuant to Pa.R.C.P. 236.


author: KELLER, Member,

text:
    In re Anonymous No. 26 D.B. 81
    Disciplinary Board Docket no. 26. D.B. 81.
    January 9, 1990
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

KELLER, Member,

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

HISTORY OF PROCEEDINGS

This matter is before the Disciplinary Board on the petition of [petitioner] for reinstatement to the bar of the Supreme Court of Pennsylvania. By order dated December 14, 1982, the Supreme Court of Pennsylvania accepted the recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania, dated January 20, 1982, and ordered that [petitioner] be disbarred from the practice of law within the Commonwealth of Pennsylvania.

In the prior proceedings which resulted in petitioner’s disbarment, petitioner was found to have engaged in the following conduct: (1) delivering a bribe to a public official; (2) giving false testimony, under oath, to a federal grand jury after he had been granted immunity; (3) failing to make appropriate disclosure to a federal grand jury and law enforcement officers; and (4) “laundering” checks for a public official.

Petitioner’s conduct was found to have violated Disciplinary Rules 1-102(A)(3), which prohibited an attorney from engaging in conduct involving moral turpitude; 1-102(A)(4), which prohibited an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 1-102(A)(5), which prohibited an attorney from engaging in conduct that is prejudicial to the administration of justice; 1-102(A)(6), which prohibited an attorney from engaging in any other conduct that adversely reflects on his fitness to practice law; 1-103(A), which required an attorney possessing unprivileged knowledge of a violation of D.R. 1-102 to report such knowledge to a tribunal or another authority empowered to investigate or act upon such violation; 7-102(A)(3), which prohibited an attorney, in the representation of a client, from concealing or failing to disclose that which he is required by law to reveal; and 7-102(A)(8), which prohibited an attorney, in the representation of a client, from knowingly engaging in other illegal conduct or conduct contrary to a Disciplinary Rule.

Petitioner filed the present petition for reinstatement to the bar of the Supreme Court of Pennsylvania on March 8, 1988, approximately five years and two months after the effective date of his disbarment. As of the date of this report, he has been disbarred for approximately seven years. The acts that led to his disbarment occurred more than 12 years ago.

The majority of the hearing committee concluded that petitioner did not meet his burden and recommended that the petition be denied. The board unanimously reverses and recommends reinstatement.

FINDINGS OF FACT

(1) Petitioner is 39. years of age. He was born in [ ] in 1950. He came to the United States with his family in 1958. He became a naturalized citizen at 13 years of age when his father became a citizen.

(2) During petitioner’s senior year of high school, he joined a fraternal organization called the Order of [A].

(3) At the Order of [A], petitioner met [B], who later became president of the order. [B], who was then an attorney, became petitioner’s mentor and provided guidance and support to petitioner in his professional and personal life. [B] influenced petitioner to attend law school.

(4) While petitioner attended [C] College (and into law school), petitioner worked at the Order of [A]. He served as an administrative assistant to [B], maintained the organization’s checkbook and membership roll, oversaw the restaurant and supervised the staff on behalf of [B].

(5) Petitioner received a Bachelor of Arts Degree from [C] College in 1972 and immediately thereafter entered [D] Law School.

(6) During law school, petitioner continued to work for [B] as a law clerk, with the exception of one summer when he served as an intern to the Office of the United States Attorney for the [ ] District of Pennsylvania.

(7) Upon graduation from law school in the summer of 1975, petitioner worked for [B] as an associate. Petitioner was employed by [B] as an associate (and later became his partner) from September 1975 through the early part of 1978.

(8) In or about September 1975, petitioner was hired by [E], the then executive director of the [F], to serve as staff attorney to [F]. Petitioner was employed by [F] from September 1975 to September 1976,'

(9) Petitioner was introduced to [E] by [B]. For a period of time, petitioner worked for both [B] and [F].

(10) Petitioner was admitted to the Bar of the Supreme Court of Pennsylvania on October 7, 1975.

(11) Petitioner was also admitted to the United States District Court for the [ ] District of Pennsylvania on May 18, 1978; the United States Court of Appeals for the [ ] Circuit in June 1978; the Supreme Court of [ ] on May 20, 1976, and the United States District Court of [ ] on April 27, 1976.

(12) Petitioner was disbarred from the practice of law in this Commonwealth by order of the Supreme Court of Pennsylvania dated December 14, 1982, as a result of certain acts that he committed in 1975, 1976 and 1977. He was disbarred from the courts identified in finding of fact (11) based on reciprocity.

(13) At the time petitioner committed the acts that led to disbarment he was newly admitted to the bar.

(14) In late 1975, petitioner “laundered” checks for [E] which totalled approximately $10,000. The checks were drawn on the accounts of various contractors with the names of the payees left blank. Petitioner cashed the checks and delivered the money to [E] in such a way as to leave no record of [E’s] receipt of the money.

(15) In connection with litigation involving [G] Industries Inc. and [F], petitioner delivered cash payments of $15,000 on March 30, 1976 and $12,500 on May 7, 1976 to [E] at the request of [B]. Petitioner knew that at least one cash delivery constituted payment of a bribe to a public official;

(16) When the [G] transaction became the subject of a federal grand jury investigation, petitioner was subpoenaed. He invoked his privilege against self-incrimination and was granted immunity by the United States District Court. At [B’s] request, petitioner gave perjured testimony in which he denied knowledge of the fee-splitting arrangement between [B] and [E] and of the March 30 and May 7 deliveries of cash to [E].

(17) Petitioner later learned that the president of [G], [H], who had also given perjured testimony, had recanted his previous testimony and told the truth about the [G] transaction.

(18) Under threat of prosecution for perjury, petitioner then recanted his own perjured testimony and cooperated with the grand jury investigation and the federal government’s subsequent prosecution of [E].

(19) In addition to making full disclosure of the [H] transactions to the federal grand jury, petitioner gave the FBI and United States Attorney’s Office information which had heretofore been unsolicited by the federal authorities regarding certain acts that [E] had asked him to perform involving checks drawn by certain bidding contractors while petitioner was staff attorney to [F].

(20) After the events that led to disbarment, petitioner practiced law for approximately five years until his disbarment on December 14, 1982. During that period of time, petitioner was primarily a sole practitioner who did some work for the [I] and practiced criminal law for other clients.

(21) Petitioner has served on the Board of Directors of [J] since 1979. He presently serves as Chairman of the Board of Directors of [J] and has served in that capacity since January 1983.

(22) In 1983, immediately following his disbarment, petitioner worked as a law clerk to the [K] firm for approximately six months. He performed legal research and drafting in the areas of Pennsylvania securities law and real estate syndication, among other things.

(23) After his disbarment, petitioner devoted substantial time to a partnership he formed with [L] in 1981 called [M] Apartments.

(24) In January 1983, petitioner formed a second partnership called [N] Apartments through which an apartment complex and commercial building in [ ], among other properties, were purchased.

(25) In January 1983, petitioner and [L] formed a corporation known as [O] Enterprises Inc. to acquire, development and manage their real estate investments and holdings. Petitioner has been and continues to be president of [O] Enterprises Inc.

(26) Since June 1983, petitioner has served as the Chief Executive Officer of [P] Communications which sells cellular telephones and communication equipment.

(27) In 1985 petitioner attended the [Q] Executive MBA Program at the University of [R], [Q] School of Business and received his MBA degree from that institution in 1987. .

(28) In December 1986, petitioner became a general partner of [S] Associates, a partnership formed with [L] to develop Pennsylvania properties.

(29) In February 1987, petitioner became a vice-president and secretary of [T] Inc., a corporation that publishes the [U] newsletter for [V] Association. [V] is an organization which serves as a health care provider to [ ] police and firefighters.

(30) Petitioner and his father-in-law also acquired a business called [W] Company located in [ ].

(31) Since 1985, petitioner has volunteered ‘and continues to volunteer his services to [X] Church and Monsignor [Y]. He maintains a close relationship with.[X] Church and attends Mass there. He also has an affiliation with [Z] Roman Catholic Church in [ ]. Petitioner has volunteered his services as business consultant to the [AA] Association and to the [BB], Petitioner has also provided nonlegal services and business assistance to the public in the Constituency of the [ ] Ward in [ ], Pa., free of charge.

(32) Pursuant to section 89.275 of the Disciplinary Board Rules, petitioner filed a reinstatement questionnaire with his petition for reinstatement.

(33) Pursuant to the request of the Office of Disciplinary Counsel, petitioner provided federal, state and local income tax returns for the period of his disbarment.

(34) A comparison of the income tax returns provided by petitioner with his reinstatement questionnaire reveals the following:

(a) At paragraphs 11 and 12 of the reinstatement questionnaire, petitioner did not include at least three partnerships that are included in his personal tax returns: [Petitioner] & [CC], [DD] & Associates and [EE],

(b) Petitioner did not include, at paragraphs 11 or \2 of the reinstatement questionnaire, several other sources of income for the year 1985, such as [FF] Factory Products, [GG] Restaurant and [HH].

(c) Petitioner stated in his. reinstatement questionnaire, at paragraph 11, that his 1983 income from the law firm of [K] was $10,000 rather than the $17,600 reported in his return for that year, and that his 1984 income from that law firm was $15,000, while he has no reported wages from [K] on his return for 1984.

(d) After petitioner provided his income tax returns, he amended his reinstatement questionnaire to disclose $10,000 in income from [II], Esq., in 1986 for “business consulting,” income that was revealed by his income tax return; and

(e) While the reinstatement questionnaire indicates that until 1987 petitioner owned 40 percent of the shares of [P] Communications Corporation from June 1983 until January 1987, income tax returns for that corporation and its predecessors show that 100 percent of the shares were reported to the State of [ ] as owned by [JJ].

(35) In a resume attached to petitioner’s application to the [Q] School which petitioner prepared in late 1983 or early 1984, he stated that he sold his law practice in September 1982.

(36) The evidence supports the following findings with respect to petitioner’s driver licenses in Pennsylvania and [ ]:

(a) On or about November 4, 1985 petitioner applied for a [ ] photo automobile license;

(b) On his application for a [ ] driver license, in response to a question as to whether or not he held a driver license in any other state, petitioner marked “no”;

(c) At the time petitioner signed the [ ] application for a driver license, he was a licensed driver in Pennsylvania;

(d) Records of the Commonwealth of Pennsylvania, Bureau of Motor Vehicles, indicate that petitioner renewed his Pennsylvania driver license on numerous occasions after he obtained a [ ] license and;

(e) It was only after the Office of Disciplinary Counsel brought to the attention of petitioner’s attorney that petitioner was illegally holding licenses in both states, that [petitioner] handed in his Pennsylvania driver license.

(37) Petitioner was counsel to [V] from the time that [B] was disbarred (July 1978) until petitioner was disbarred in December 1982.

(38) After petitioner’s disbarment, [KK] Esq., of [K] became counsel to [V].

(39) During the period from 1983 to January 1986, [II], Esq., was an associate with the firm of [K] and handled the representation of [V].

(40) In January 1986, [II] left the [K] law firm and established his own firm.

(41) On January 1, 1986, [KK] & [II], Attorneys-at-Law, entered into an agreement with [LL] Enterprises Inc. (the parent corporation for [V]), which provides that for $30,000 per month, [KK] & [II] would provide to [LL] * ‘professional legal and consulting services.”

(42) The evidence supports the following findings with respect to the [KK] & [II] agreement:

(a) There is no law firm by the name of [KK] & [II]-

(b) The “[KK]” in [KK] & [II] is [KK], Esq., and the “[II]” is [II], Esq.

(c) The monthly rate for the agreement was based in part on the amount of fees previously paid by [V] to its counsel prior to the January 1, 1986 agreement.

(d) [KK] presently receives $5,000 a month as a result of the January 1, 1986 agreement.

(e) All business consulting services provided under the [KK] & [II]-[LL] agreement, other than actuarial consultation, is performed by [O] Business Advisory Systems; and

(f) [MM], chairman of the board of [V], is unaware how the $30,000 monthly fee paid to [II] is divided.

(43) In December 1986, [O] Business Advisory Systems, a division of [O] Enterprises Inc., entered into a business consultant and management agreement with [II] Law Offices.

(44) Under the terms of the agreement, petitioner, [L] and the staff of [O] have provided and continue to provide business consulting services and other non-legal services to [V]. In addition, [O] provided and still provides non-legal business related services to [II’s] other individual and corporate clients.

(45) Under the terms of the agreement, [O] receives as compensation a monthly fee of $16,000 for 160 hours of work performed per month.

(46) [V] is a multimillion-dollar operation with over 12,000 members whose families use the [V] health care facilities (approximately 40,000 individuals). The type of work [O] performs for [V] under the agreement is of a ñon-legal, business-related nature such as assistance with financing packages, investment consulting, real estate development, advice on corporate strategy and acquisition of businesses, membership drives, labor issues, delivery of benefits to members and assistance with their computer system. Petitioner also helps to oversee [V’s] day-to-day operations.

(47) Petitioner spends approximately 50 percent of his time doing business consulting under the agreement and spends the remaining time between real estate, construction projects and the [NN] store, which is owned by [O].

(48) When [II] bills his clients for legal and consulting services, he does not separately bill for each type of service.

(49) At the reinstatement hearing, petitioner produced 11 character witnesses, all of whom attested to petitioner’s present moral qualifications and excellent reputation in the community.

(50) The persons who testified were Monsignor [Y]; [OO], Ph.D.; [PP]; [QQ]; [RR], Esq.; [SS]; [IT]; [MM]; [UU]; [II], Esq.; and [L].

(51) The character witnesses, including two attorneys, a priest, a professor at the University of [R], [Q] School of Business and seven businesspersons, are men of stature who testified to petitioner’s abilities, integrity and competence. They all hold petitioner in very high respect, despite his disbarment.

(52) All of the character witnesses testified that petitioner has demonstrated remorse and regret for his prior'conduct, that if petitioner were reinstated, they would utilize his services as an attorney or refer legal matters to him, and that in their opinion petitioner’s reinstatement would not be detrimental to the integrity and standing of the bar or subversive to the public interest.

(53) Petitioner has shown sincere remorse for his conduct that led to disbarment and regrets his misdeeds.

(54) Petitioner acknowledges that he committed egregious errors in judgment and conduct. He testified that he has learned from his mistakes and will never again commit the errors that have blighted his personal life and career, and thát have caused both he and his family shame and humiliation.

(55) Petitioner has testified that if readmitted to the practice of law, he would not engage in unethical conduct of any type in the future.

(56) Since January 1983, over the past six years, petitioner has kept abreast of emerging legal issues in the law and has familiarized himself with the changes in the law, recent statutes and case law.

(57) Petitioner has subscribed to and read the Pennsylvania Reporter and numerous other publications, periodicals and advance sheets.

(58) Petitioner has read and continues to read opinions of the Supreme Court of Pennsylvania and lower courts. He has diligently read the Pennsylvania District & County Reports, [ ] County Reports, The Legal Intelligencer, slip opinions, Pennsylvania Bar Institute publications, law texts and law review articles.

(59) In 1985, while enrolled in the [Q] program, petitioner attended two law-related courses.

(60) Petitioner has purchased and reviewed the [ ] Court of Common Pleas Civil Practice Manual, (5th ed. 1987). He has also purchased and used various audio cassettes and manuals sponsored by the [ ] Institute of Continuing Legal Education and the [ ] Trial Lawyers Association pertaining to negligence, labor matters, real estate and collection practice.

(61) Petitioner has also purchased and studied the following textbooks: Effective Drafting of Contracts, Gann Law Books, and Acquisition and Corporate Development, Lexington Books.

(62) In addition to the above-described continuing legal education, petitioner has satisfied the requirements of section 89.279 of the Disciplinary Board Rules and Procedures.

(63) All of the character witnesses who testified on petitioner’s behalf at the reinstatement hearing affirmed petitioner’s competence, intellect and abilities.

DISCUSSION

The board is acutely cognizant that before rule 218(c)(3) of the Rules of Disciplinary Enforcement —

“(i) A disbarred or suspended attorney shall have the burden of demonstrating by clear and convincing evidence that such person has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth and that the resumption of the practice of law within the Commonwealth by such person will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.”

— is to be addressed the threshold question as enunciated in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986) must be explored and answered.

As the court explained in Keller, supra:

“In the case of disbarment there is no basis for an expectation by the disbarred attorney of the right to resume practice at some future point in time. When reinstatement is sought by the disbarred attorney, the threshold question must be whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon ‘the integrity and standing of the bar or the administration of justice nor subversive of the public interest.’ Pa.R.D.E. 218(c)(3)(i).”

The board in concluding that petitioner’s reinstatement should be granted inherently finds that the crimes and circumstances under which petitioner was originally disbarred, even though egregious, would permit petitioner resumption of practice without a detrimental effect upon the integrity and standing of the bar or the administration of justice nor subversive of the public interest. Realizing that there is no quantitative length of time for a disbarred lawyer to overcome the Keller litmus threshold, there must be a combination of quantitative length of time coupled with a qualitative period of rehabilitation in order for a disbarred attorney to be reinstated.

It has been approximately 12 years since the acts upon which petitioner was disbarred were committed. It is important to note that at the time the petitioner was approximately 25 years of age and through misguided loyalty and in violation of his oath as a lawyer wrongfully acted at the bequest of his mentors, Messrs. [B] and [E]. Since that time the conduct and rehabilitative efforts of petitioner since his disbarment have been impressive. He has obtained an MBA from the [Q] School. He has been chairman of the board (a position of trust) of the [J], a Pennsylvania bank, and has carried out his duties admirably. He has devoted a substantial amount of time to charity and volunteer work. He has achieved substantial success in his various business ventures. Finally, and perhaps most importantly, he has ex-. pressed and shown sincere regret and remorse for the conduct which led to his disbarment.

There are certainly offenses that an attorney can commit that are of such “magnitude of the breach of trust” that a rehabilitative life comparable to that of Mother Theresa would not entitle a disbarred attorney to be readmitted under the principles of Keller, supra. However, given the petitioner’s qualitative rehabilitation, the public trust has been restored.

The hearing committee denied petitioner’s reinstatement with one member dissenting that the length of time since petitioner’s disbarment was insufficient to overcome the egregious magnitude of his offenses. The board unanimously believes that the length of time of disbarment in this case, approximately seven years, is but one-half of the formula for reinstatement: the other half of the formula for reinstatement has to be the qualitative rehabilitation that a disbarred attorney undergoes during his absence. It would be ludicrous to suggest that a disbarred lawyer similarly situated as the petitioner, but who goes 10 years before requesting reinstatement and does nothing insofar as his becoming a productive member of society should be granted greater consideration by the mere passage of time. Rather the test be coupled not only with the passage of time but with one’s rehabilitative efforts as time passes.

It is abundantly clear that petitioner’s quality of effort in righting himself and becoming a productive citizen both in the community, in the church and in the business world tips the scales convincingly in his favor for reinstatement.

CONCLUSION

Based on the foregoing, the Disciplinary Board unanimously concludes that petitioner, [ ], be reinstated to the bar. Costs are to be paid by petitioner.

ORDER

May 23, 1990 — The report and recommendation’s of the Disciplinary Board dated January 9, 1990, are accepted, and the petition for reinstatement is granted. Pursuant to rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.

Mr. Justice McDermott did not participate in the consideration or decision of this case.

       Except where otherwise indicated, findings of fact with respect to the acts that led to petitionér’s disbarment are based on the opinion of the Supreme Court of Pennsylvania issued on December 14, 1982, a. copy of which opinion is appended to petitioner’s petition for reinstatement.