author: CLARK, J.,

text:
    Commonwealth ex rel. Capital Tax Collection Bureau v. Harden

      C.P. of Dauphin County,
    no. 4051 CD 2001.

      Jodi A. Beierschmitt and Dennis Boyle, for plaintiff.

      Darnell Harden, pro se.
    December 3, 2002
   CLARK, J.,

INTRODUCTION

In 1789, Benjamin Franklin wrote “In this world nothing is certain but death and taxes.” And now, more than two centuries later, we are called upon to decide whether or not the latter of these unpleasant certainties may be assessed against a citizen, the defendant, Darnell Harden, a/k/a Hadiel T. G. Bey. The instant matter stems from what, upon first impression, might appear to be quite a simple proposition, namely, can the city of Harrisburg compel a resident to file an earned income tax return? However, as will be discussed herein, that proposition, notwithstanding the trappings suggested by the true party in interest, is not what this matter is all about. Rather, it is the usurpation of the mantle of the sovereign, the Commonwealth itself, and an apparent abuse of the criminal justice process that is at the core of this case.

The primary focus of the court’s inquiry and discussion is the power and authority, if any, that the city’s retained “income tax collection officer” has to initiate and prosecute a private criminal complaint, all in the name of the Commonwealth, in order to extract compliance for an alleged violation of the city’s taxing ordinances. More specifically, can the city’s tax collector employ criminal law procedures and sanctions, advanced by private persons and entities (who may have serious conflicts of interest in such matters), in an attempt to obtain compliance with the taxing ordinances. And more particularly, can this apparent course of first resort be employed by private persons acting under an assertion of color of state law.

BACKGROUND

From the scant documents of record in this case, it appears that the defendant was an adult resident of the city during the 1999 calendar year. By virtue of the city’s Earned Income and Net Profits Tax Ordinance no. 108, as authorized by the Pennsylvania Earned Income statute, 53 P.S. §6913, the defendant was allegedly obligated to file a return of earned income or net profits on or before April 15, 2000. According to the private criminal complaint filed against the defendant, he (defendant) failed to file such a return within the prescribed time to do so. It does not appear anywhere of record that the city’s tax collector attempted to first obtain compliance with the local tax ordinances through any type of civil proceeding, although expressly authorized by law to do so.

On or about August 15,2001, a private criminal complaint was filed by Ms. Gloria Johnson, denominated as the “deputy earned income tax officer” of the “Capital Tax Collection Bureau” against the defendant, alleging that he (defendant) had violated the provisions of the ordinance. That private criminal complaint was never approved, prior or subsequent to filing, by a Commonwealth attorney. Thereafter, a summary criminal proceeding was conducted before District Justice Joseph S. Solomon, which resulted in the defendant being found guilty of violating the ordinance, and he was assessed a fine and costs in the amount of $540.50. (3/28/2002, N.T. 2.) A timely appeal was filed by the defendant, and the case was thereafter scheduled for a de novo summary trial before this court.

DISCUSSION

In preparation for hearing this matter as a de novo trial, the court had an opportunity to review the file documents and noted several matters that raised issues of both substantive and procedural concern relating to criminal law and procedure. First, it should be noted that on November 21, 2001, the defendant, pro se, had filed with the court a document which he entitled “petition in error.” This petition can best be described as a rambling, rather incoherent attempt to invoke some sort of self-styled collage of disjointed concepts involving constitutional law, common law, and other assorted and sundry notions, all seeming to assert a challenge to the ordinance and its applicability to him, the defendant. Indeed, from reading that petition, it was quite apparent to the court that the defendant had little or no concept of the pertinent issues of the private criminal prosecution that was being hoisted against him, and he was likewise not likely to be able to fairly respond to such situation in any meaningful fashion. This obvious disparity between the prosecution and the defendant served to heighten our concerns about the defendant’s ability to adequately defend himself against these allegations.

It is vital to a reasonable discussion of this matter to truly illuminate just who was claiming to be the “Commonwealth” in these criminal proceedings. As noted earlier, this prosecution was initiated by a private criminal complaint. A passing glance at the title of the employer (Capital Tax Collection Bureau) of the person (Ms. Johnson) who signed the complaint as affiant, and her title (deputy earned income tax officer), might initially convey an impression that this prosecution against the defendant was being instituted and advanced by a public employee who was employed by a governmental entity. However, in reality, nothing could be further from the truth. In fact, the Capital Tax Collection Bureau is a private, non-profit corporation which solicits municipal governments, including school districts, to act as their tax collector, pursuant to the provisions of 53 P.S. §6913. Likewise, the deputy earned income tax officer, Ms. Johnson, the affiant, is a privately employed, civilian employee of that same, non-profit corporation, the bureau.

It would be of some value to initially dispel any suggestion that the city is not authorized to enact a taxing ordinance, such as ordinance no. 108. It is, and has every legal right to levy and collect on earned income and net profits as established by that statute. Nor is it in dispute that the city can engage the services of a private entity, such as the bureau, to function as the city’s tax collector, again pursuant to the provisions of that same statute. What is very much in question in this case is the manner by which criminal proceedings were initiated by an affiant of a private, non-profit corporation in an attempt to force a citizen to conform to the dictates of a local ordinance. Although the bureau is duly registered and denominated as a non-profit corporation, reason dictates that it must generate income from its services in order to pay its employees, operating costs, debt service and related expenses. It is also equally reasonable to presume that whatever fee schedule is established between the bureau and its client municipalities, it is, at least in significant part, predicated upon the volume of accounts collected and the resultant tax revenues paid over to its clients. Thus, there is an inherent and unavoidable monetary interest on the part of the bureau to collect as much tax as possible that may be due and owing from each person or entity that is subject to the levy. And therein is sown the makings of mischief.

An examination of the Act (53 P.S. §6913), reveals both the existence and absence of some statutory provisions which shed some light on the intention of the General Assembly when enacting this legislation. For instance, section VII of the Act, subsection (a), specifically authorizes the designated tax collection officer (bureau) to “sue, in the name of the taxing district, for recovery of taxes due and unpaid ....” 53 P.S. §6913 (VII)(a), (emphasis supplied) It is obvious that the General Assembly wanted to ensure that the municipal tax collector had standing to initiate and pursue a civil remedy on behalf of its municipal client. The Act also provides that “This section shall not be construed to limit the governing body from recovering delinquent taxes by any other means provided by this Act.” 53 P.S. §6913 (VII)(b)(5). (emphasis supplied) That section of the Act likewise, and obviously, ensures that any of the other remedies available to a municipal taxing entity, can be pursued by the municipal entity. And of final note, is section IX of the Act where there are summary criminal provisions which impose fines, costs, and possible imprisonment, against anyone found guilty of failing to comply with the mandatory provisions of the Act. 53 P.S. §6913(IX)(a-d).

Again, as indicated above, it is undisputed that the General Assembly, in enacting the statute, intended to empower and did empower the tax collector (bureau) to pursue collection of the taxes due and owing to its client municipalities through civil actions at law. However, the attempt to collect those same taxes, by a private corporation, through a private criminal complaint, is quite another matter. Nowhere in the Act did the legislature empower a private civilian tax collector to initiate a private criminal complaint against a person or entity alleged to be in noncompliance with the ordinance, in contrast to the specific grant of authority to pursue a civil remedy. It is bedrock law in this Commonwealth that the General Assembly is fully presumed to know the meaning and effect of all legislation it enacts. Indeed, if we were to apply the principles of statutory construction, 1 Pa.C.S. §§1901-1939, to this issue, especially in light of a specific grant of authority to the tax collector to pursue civil remedies to collect taxes, and the concomitant lack of such a specific grant of authority to that same tax collector to criminally pursue such a remedy, we are constrained to conclude that the legislature did not intend for private, civilian tax collectors to assume the powers and duties, which are ordinarily and properly reserved to law enforcement agencies, to criminally enforce the provisions of the Act.

It is for these reasons that we find that the criminal law enforcement provisions of the Act should be pursued, if at all, and preferably, by a bona fide law enforcement agency who has criminal law jurisdiction where the violation is alleged to have occurred. In the absence of criminal enforcement action by a bona fide law enforcement officer, and for good cause, the affiant of any such private criminal complaint should be, at an absolute minimum, an actual employee of the municipal taxing entity asserting the levy, which employee is authorized by law to exercise at least quasi-law enforcement authority to enforce such criminal penalty provisions of the Act. However, in any such private criminal prosecution case, the resort to criminal law prosecution and its attendant sanctions should only be pursued after all other less ominous avenues of approach have been reasonably exhausted. It would be wise for these taxing entities to remember that a “debtor’s prison” is not permitted in this Commonwealth, or these United States.

This methodology would act as a reasonable check and balance upon the use of criminal law enforcement power to collect what is essentially a public and civil debt allegedly owed to a local governmental agency, and would also assure that the persons bringing the prosecution (law enforcement or quasi-law enforcement officers) do not have a monetary interest in the outcome of that criminal prosecution. Aside from the obvious pub-lie policy considerations attendant to only allowing law enforcement officers, or where absolutely necessary, quasi-law enforcement officers, to pursue these criminal enforcement provisions, there is also a not insignificant collateral consideration of the possible catastrophic civil liability consequences to a private entity, such as the bureau and its affiant employees, should any such private criminal prosecution prove to be in error, and thereby damage the good name and reputation of an innocent person. The good faith exception from liability accorded to law enforcement personnel and their agencies would most likely be unavailable to private persons and/or entities in such circumstances.

It is quite apparent to this court that the initiation of civil remedies by the tax collector, as specifically provided by law, may not be viewed by some to be the most expedient, productive, profitable or cost efficient method of collecting taxes that may be due. However, allowing a private entity, such as the bureau, which has a patent and vested interest in a successful outcome of such a criminal prosecution, to adopt the role of the Commonwealth in order to advance its tax collection interests, is fraught with the potential for wrongdoing. One need look no deeper than the tumultuous history of this Commonwealth at the later part of the 1800s and the very early 1900s, when the General Assembly commissioned, by statute, the formation of private corporate police forces throughout the state to protect and preserve the private interests of coal barons, iron industrialists, and railroad entrepreneurs. See generally, Act 228 of February 28, 1865, P.L. 225, which was followed shortly by Act 87 of April 11, 1866, P.L. 99. These statutes created the Railroad Police and the infamous “Coal and Iron Police,” respectively. Although presumably well-intentioned actions by the General Assembly at the time, these commissioned, private police forces soon became a brutal and corrupt scourge upon the citizens and a damning •blight, upon the name of this Commonwealth. That dark period of our history became a hard-learned lesson to never again, allow the criminal law enforcement power of the Commonwealth to be manipulated and wielded by the private sector.

With the foregoing as a backdrop, let us now review the instant case. As stated earlier, it is the court’s considered opinion that the civilian tax collector (bureau), by and through its employee (Ms. Johnson), should not have assumed the role of an affiant in a private criminal complaint against the defendant. However, if we assume, arguendo, that such private criminal enforcement action is permitted, then we must examine how the Pennsylvania Rules of Criminal Procedure effect any such prosecution at the different judicial levels.

It is now important to point out that at no stage of these criminal proceedings, either before the district justice or the court of common pleas, did a Commonwealth attorney (district attorney or attorney general) ever appear on behalf of the Commonwealth. It is not clear from the record if any private attorney appeared before the district justice on behalf of the bureau’s affiant employee, Ms. Johnson. Although it does appear that the defendant represented himself, pro se, throughout this entire matter. However, on the day of summary trial before this court on March 28, 2002, Jodi A. Beierschmitt, Esquire, a licensed attorney and member of the law firm privately retained by the bureau to represent its corporate interests, attempted to appear on behalf of the Commonwealth and to assume the role of a prosecutor, thus purporting to represent the Commonwealth’s interests in that de novo proceeding. At that time, Attorney Beierschmitt was neither a Commonwealth attorney, nor was she an attorney appearing on behalf of a municipality, with the consent of the Commonwealth attorney (Dauphin County District Attorney). Rather, Attorney Beierschmitt was a privately employed, privately retained lawyer from the law firm retained by the bureau. It was quite apparent to this court that Attorney Beierschmitt was attempting to bootstrap the municipal status of the bureau’s municipal clients as the basis for her purported appearance on behalf of the Commonwealth. Such twice-removed municipal status certainly does not comport with the laws of this Commonwealth, especially the Rules of Criminal Procedure.

Upon Attorney Beierschmitt’s inability to satisfy the basic requirements of standing to bring the prosecution before this court, the charge against the defendant was dismissed, and duly noted on the record. Subsequently, this court received a notice of appeal, filed on June 21, 2002 in the Pennsylvania Commonwealth Court by the bureau’s said attorney, again purporting to be acting in the role of the Commonwealth as appellant. Thereafter, pursuant to Pa.R. A.P. 1925(b), this court issued an order upon the appellant (bureau), requiring it to file a concise statement of matters complained of on appeal. On July 22,2002 the appellant (bureau) filed its statement, which appears to contain a single appeal issue, framed as follows:

“(1) The trial court erred in dismissing the case on the basis that the ‘complaint’ was not signed by the district attorney’s office pursuant to Pennsylvania Rule of Criminal Procedure, where Rule 506 is not applicable to the matter dismissed, and the appropriately governing rule is instead Pennsylvania Rule of Criminal Procedure 420, which does not require the signature of the attorney for the Commonwealth.” Statement of matters complained of on appeal, filed by counsels for the Capital Tax Collection Bureau on July 22, 2002.

It is interesting to note, that the foregoing statement was endorsed by the signatures of Attorney Beierschmitt and another member of her law firm, and specifically stated that they were claiming to be “Counsel for: Capital Tax Collection Bureau.” In the brief subsequently filed with the Commonwealth Court in support of its statement, the appellant (bureau) posited its appeal proposition as follows:

“Whether the signature requirement of Pennsylvania Rule of Criminal Procedure 506 is applicable to a summary case where the appropriate rule governing summary cases is instead Pennsylvania Rule of Criminal Procedure 420, which does not require the signature of the attorney for the Commonwealth?”

Brief in support of statement of matters complained of on appeal, 7/22/2002, p. 2.

If we were to agree with the appellant, which we do not, that the pertinent appeal issue is correct as stated above, then we might likewise agree with the appellant’s contention stated therein. However, as is being discussed in this writing, that is not the true issue(s) in this case. Notwithstanding that distinction, we will agree with the appellant (bureau) that the approval of the Commonwealth’s attorney is not required for a filing and prosecution of a private criminal complaint, which alleges a summary violation of the law, in a proceeding before a district justice. (See and contrast the provisions of Rules 506 and 420 of the Pa.R.Crim.P.) We further agree with the appellant (bureau) when it asserts that Rule. 420 of the Pennsylvania Rules of Criminal Procedure provides that in summary cases, when the affiant is not a law enforcement officer, a summary criminal action shall be instituted by filing a complaint with the proper issuing authority. Pa.R.Crim.P. 420, 42 Pa.C.S.

If the prosecution in this case had been initiated either by a law enforcement or quasi-law enforcement officer from the municipal entity which was levying the tax, then there would not be the problems that the current situation presents. And, if a conviction was obtained before the issuing authority and was then subsequently appealed into the court of common pleas, either a Commonwealth attorney (presumably the district attorney) or a duly appointed solicitor for the municipal entity involved in the matter, would appropriately have had standing to present the case on behalf of the Commonwealth to the court for a summary de novo trial. Unfortunately, that is not what happened in this case. It is likewise obvious from a reading of the rules that private summary criminal prosecutions brought before a district justice do not require the approval of a Commonwealth attorney. Rule 506, and its requirement of Commonwealth attorney approval, only applies to court cases, which, by definition, do not include summary offenses. And if this case had not been appealed by the defendant into the court of common pleas, then that would have been the end of it. However, that also is not this case.

As this court clearly summarized during the proceedings held on March 28, 2002, all the Rules of Criminal Procedure governing a trial de novo were applicable once the matter arrived in this court. Our Pennsylvania Superior Court has firmly established that:

“Summary violations are by definition, minor offenses, punishable most often, only by fine. They justifiably should be summarily handled and the purpose and goal of the rules governing such proceedings is prompt adjudication before the issuing authority. However, once an appeal is taken to the court of common pleas, this goal is clearly abrogated, and thereafter all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable.” Commonwealth v. Bernotas, 399 Pa. Super. 492, 494, 582 A.2d 886, 887-88 (1990) (citing Commonwealth v. Koch, 288 Pa. Super. 290, 293, 431 A.2d 1052, 1054 (1981)). (emphasis supplied)

As can be seen by the plain language employed by the Superior Court, above, “all general provision of the criminal rules become applicable . . .” when a de novo trial occurs. All means all! We are unaware of any exception which would exclude appeals from private criminal prosecutions under the Act to be rendered inapplicable to the general provisions. That appearing to be the case, then the approval of a Commonwealth attorney is a required condition for prosecution at de novo summary trials before a court of common pleas. Usually such approval is a de facto matter implicit in the case being presented in the court of common pleas on appeal, either by the district attorney, or by a municipal solicitor, with the district attorney’s blessing and consent, as specifically provided by the rules.

Furthermore, even if we once again assume, arguendo, that the Commonwealth’s actual or implied approval was not required for this prosecution to proceed before the court of common pleas, it still must fail, since it was not being prosecuted by a Commonwealth attorney; but, rather, was being pursued by a private attorney attempting to invoke the mantle of the Commonwealth on behalf of a private corporate client, the bureau. The law simply does not permit this type of legal conduct, and for good reason. It is also quite interesting to note that nowhere in any of the pleadings, briefs, or other documents filed in this case, is there any assertion, whatsoever, that Attorney Beierschmitt and/or her law firm, had any sort of authorization to pursue this matter as an attorney representing a municipality, and with consent of the Dauphin County District Attorney. Pa.R.Crim.P. 462(B).

Of final note is the issue of timeliness of the appeal. As stated above, on March 28,2002, at the time of the dp novo trial of this case, this court clearly stated, on the record, the basis for the dismissal of the case, and clearly and definitively dismissed the case at that time. It was not until June 14, 2002 that counsel for the appellant (bureau) filed a praecipe to enter final order with the clerk of courts. This court executed such an order, dated March 28, 2002 (the date of final decision), and the same was filed with the clerk of courts on June 17, 2002. Generally, the notice of an appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). Pursuant to Pa.R.A.P 301(a), an order of the court shall not be appealed until it is entered upon the appropriate docket. And the right to make such an appeal may be taken from a final order. Pa.R. A.P. 341(a). “A final order is any order that: (1) disposes of all claims and of all parties....” Pa.R.A.P 341(b).

During the March 28, 2002 hearing we dismissed the complaint and such dismissal was accordingly docketed. Further, we made it abundantly clear when signing the requested praecipe for final order that it was effective as of March 28, 2002. This court clearly effectuated the dismissal of this action on March 28,2002 on the record and the docket reflects such dismissal. This court clearly stated at that time: “Case dismissed. You cannot bring this prosecution. You have failed to do what the law requires.” (3/28/2002, N.T. 4.) It would appear to this court that the filing of the said praecipe was nothing more than a thinly disguised attempt to enlarge the time for filing a notice of appeal, which time had already elapsed.

Additionally, we question whether or not the Commonwealth Court is the proper forum for this appeal. Given the fact that the true nature of the issues addressed herein are, obviously, the interpretation and application of the criminal laws and the Rules of Criminal Procedure, notwithstanding the fact that these matters arise in the context of a local ordinance tax enforcement case, it would seem that the Pennsylvania Superior Court would be the appropriate forum to decide this case. However, we will let those lofty matters to our superiors on the appellate courts of this Commonwealth to decide.

CONCLUSION

We certainly understand and appreciate that it is vital to effective and good government that all citizens who are subject to lawful taxes are obligated to pay those taxes to support the government. We are equally cognizant that those citizens that perform the function of tax collection have a generally thankless job, and are often unfairly criticized, and even abused by the citizens they serve. This court openly expresses our appreciation to those good and faithful public servants for the vital function of government that they perform. This case, and our decision herein, are not about those fine citizens. Rather, we were appalled by the attempt of a private corporate entity to utilize the criminal laws of this Commonwealth to collect what is essentially a public and civil debt, and we could not let that manifest abuse of the criminal law and procedure continue unchecked.

In summary, this case illuminates an unfortunately all too common practice in this Commonwealth whereby private tax collecting persons/entities are attempting to take a shortcut to obtain taxes which are claimed to be due and owing to municipal entities. However, this defendant (as are all criminal defendants) is presumed to be innocent of any criminal wrongdoing unless and until proven guilty beyond a reasonable doubt, in a fair, unbiased, and legally proper proceeding. Neither political nor economic expediency, nor economy of scale, nor difficulty in obtaining a favorable civil result, nor convenience for the government or its tax collector, nor any other such premise should ever be allowed to justify a subordination of the law and the rights of our citizens.

Issued at Harrisburg, December 3, 2002.

      . Benjamin Franklin (1706-1790) in a letter to Jean-Baptiste Leroy, 1789.


source: Caselaw Access Project

author: SOLOMON, J.,

license: Public Domain

text:
    Shallenberger Construction Inc. v. Rath Builders Supply Inc.

      C.P. of Fayette County,
    no. 1091 of 2000 G.D.

      W. Alan Torrance Jr., for plaintiff.

      John B. Cromer, for defendant.
    January 8, 2002
   SOLOMON, J.,

This is a motion for summary judgment filed on behalf of the defendant, Rath Building Supply Inc. The plaintiff, Shallenberger Construction Inc., brought suit against the defendant because of the plaintiff’s failure to obtain a contract with the Pennsylvania Department of Transportation. The plaintiff wished to submit a bid to PennDOT for a project entitled State Route 201, section 07R Water Relocation Project, Township of Dunbar, Fayette County, Pennsylvania. Since the project required a six percent goal of the original contract amount for individuals certified as Disadvantaged Business Enterprises (DBE), the plaintiff contacted the defendant to obtain a price for materials to be used on the project. At that time, the defendant informed the plaintiff that it qualified as a Disadvantaged Business Enterprise regular dealer and, therefore, 100 percent of the fee or commission charged for assistance in the procurement of the material and supplies would be counted towards the six percent goal. The plaintiff then submitted a bid to PennDOT and was deemed the lowest bidder.

In order to meet the requirements of the project, the plaintiff submitted the required documents, including the defendant’s status in the DBE program. Upon review, PennDOT advised the plaintiff that the defendant was certified as a broker, not a regular dealer. As a result, the plaintiff was unable to attain the six percent goal and was not awarded the contract on the project with PennDOT.

The plaintiff then filed a complaint against the defendant alleging negligent misrepresentation, breach of warranty, and detrimental reliance to which the defendant filed a demurrer for failure to state a cause of action. The Honorable Conrad B. Cappuzi, Judge, granted the demurrer as to negligent misrepresentation and the breach of warranty based on lack of a contractual relationship between the parties. However, the detrimental reliance claim was permitted to stand. Thereafter, the defendant filed the instant motion for summary judgment, asserting that the doctrine of promissory estoppel, upon which the plaintiff’s claim is based, is ordinarily limited to recovery of amounts actually lost and expended in reliance on the promise, and that loss of expected profit is not recognized. Hence, since the plaintiff is only claiming lost profits under a theory of promissory estoppel, no genuine issue of material fact exists and, thus, the defendant is entitled to summary judgment as a matter of law.

DISCUSSION

Motions for summary judgment are governed by Pa.R.C.P. 1035.2 which provides that:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

Under subparagraph (2), if the record contains insufficient evidence of facts to make out a prima facie cause of action, there is no issue to be submitted to a jury. To defeat this motion, the adverse party must come forth with evidence showing the existence of the facts essential to the cause of action. Note to Pa.R.C.P. 1035.2. The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim after relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000).

It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). However, the court must examine the record in the light most favorable to the non-moving party, Sabelin v. Yamaha Motor Corp., 705 A.2d 904 (Pa. Super. 1998), and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999); Doe v. Philadelphia Community Health Alternative AIDS Task Force, 745 A.2d 25 (Pa. Super. 2000), allocatur granted in part, 563 Pa. 125, 758 A.2d 166 (2000), affirmed, 564 Pa. 264, 767 A.2d 548 (2001). Summary judgment may only be invoked if the record shows there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Young v. Eastern Engineering and Elevator Co., 381 Pa. Super. 428, 554 A.2d 72 (1989). With these precedents in mind, we will consider the motion of the defendant for summary judgment.

Under the doctrine of promissory estoppel, a promise which the promisor should reasonably expect to induce action on the part of the promisee, and which does induce such action, is binding if injustice can be avoided only by enforcement of the promise. Berliner v. Bee Em Manufacturing Co., 383 Pa. 458, 119 A.2d 65 (1956). Essentially, the detrimental reliance by the promisee creates the consideration necessary for the formation of a contract, the breach of which is actionable, Travers v. Cameron County School District, 117 Pa. Commw. 606, 544 A.2d 547 (1988), as an independent cause of action. Paul v. Lankenau Hospital, 375 Pa. Super. 1, 9, 543 A.2d 1148, 1152 (1988), citing Cardamone v. University of Pittsburgh, 253 Pa. Super. 65, 74, 384 A.2d 1228, 1233 (1978).

The Supreme Court of Pennsylvania has adopted section 90 of the Restatement of Contracts, which section provides as follows:

“Promise reasonably inducing action or forbearance.
“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.” Murphy v. Burke, 454 Pa. 391, 399 n.10, 311 A.2d 904, 908 n.10 (1973).

This doctrine allows courts to enforce promises unsupported by consideration in order to remedy a manifest injustice. Id. To set forth a prima facie case of promissory estoppel, the plaintiff must establish that: “(1) the promisor should reasonably expect to induce a definite action or forbearance on the part of the promisee; (2) it actually induces such action or forbearance; and (3) injustice can be avoided only by its enforcement.” Paul v. Lankenau Hospital, supra, 375 Pa. Super, at 9, 543 A.2d at 1152-53.

Instantly, the defendant asserts that there is no material issue of fact as to the issue of promissory estoppel because plaintiff has only sought loss of expected profits and is, therefore, barred from recovery under a theory of promissory estoppel. In support of its position, the defendant cites Banas v. Matthews International Corp., 348 Pa. Super. 464, 502 A.2d 637 (1985), for the proposition that recovery in promissory estoppel is limited to reliance (or actual) damages. This court finds the assertion of the defendant to be misplaced.

In Bañas, the plaintiff sought damages from the defendant, a former employer of the plaintiff, under theories of defamation and breach of contract. The plaintiff did not assert a cause of action based upon promissory estoppel. The Bañas court mentioned promissory estoppel in a minor footnote (n. 12), 348 Pa. Super, at 486, 502 A. 2d at 648, which had no effect on the opinion of the court. The doctrine was not at issue before the court, and the discussion was merely dicta.

As stated, supra, our Supreme Court has adopted section 90 of the Restatement of Contracts. Murphy v. Burke, supra. Comment (d) to that section states that “[a] promise binding under this section is a contract, and full scale enforcement by normal remedies is often appropriate.” Additionally, other cases in this Commonwealth have awarded damages under a promissory estoppel theory outside the scope of reliance damages. See Paul v. Lankenau Hospital, supra; Travers v. Cameron County School District, supra.

Therefore, the claim of the loss of expected profits may be a viable remedy in an action based upon promissory estoppel. Thus, at this point in the litigation, viewing the record in the light most favorable to plaintiff, the non-moving party, and resolving all doubt in its favor, there exists a genuine issue of material fact. Sabelin v. Yamaha Motor Corp., supra; Doe v. Philadelphia Community Health Alternatives AIDS Task Force, supra. See also, Line Lexington Lumber & Millwork Co. Inc. v. Pa. Publ’g Corp., 451 Pa. 154, 301 A.2d 684 (1973). Accordingly, the defendant’s motion for summary judgment must be denied.

Wherefore, we will enter the following order.

ORDER

And now, January 8, 2002, the motion for summary judgment filed by the defendant is ordered denied.


author: LUCCHINO, J.,

text:
    Cunningham v. McCall

      C.P. of Allegheny County,
    no. FD 96-6217-001.

      Christine Marie Selden, for plaintiff.

      Luke Kelly, for defendant.
    June 25, 2001
   LUCCHINO, J.,

This is an appeal from the court’s January 9, 2001 order dismissing exceptions of defendant/appellant Edward C. McCall III (Father) and cross-exceptions of plaintiff/appellee Cynthia A. Cunningham (Mother) to a hearing officer’s recommendation modifying support for the parties’ minor child. Mother has not cross-appealed.

PROCEDURAL HISTORY

The parties, never husband and wife, had one child, Roman Cunningham, who was bom June 5, 1996. In March 1997, Father was ordered to pay $126 per month for the support of Roman. At the time, Father was found to have an earning capacity of $600 per month. On August 5, 1998, Father received a lump sum of $44,051 as inheritance from his father’s estate. Father did not notify the court of his receipt of this money. On February 2, 1999, without reliance on Father’s inheritance, Father’s support payment for Roman was increased to $418 per month (largely because of an increase in Father’s income). On March 1, 2000, Father’s support payment (again without reliance on Father’s inheritance) was increased to $679 per month. On September 14, 2000, a support hearing was held pursuant to Father’s petition for reduction of support, dated April 17, 2000. Father sought the reduction because he had lost his job.

Following the hearing, the hearing officer recommended that Father pay $641 per month for basic support of Roman through September 30, 2000, and $749 per month thereafter. In calculating Father’s income for support purposes, the hearing officer included $232 per month that was the $44,051 inheritance spread out over 190 months (the length of time from Father’s receipt of the inheritance on August 5,1998, to Roman’s expected emancipation on June 5, 2014).

Father and Mother filed exceptions and cross-exceptions, respectively, to the hearing officer’s recommendation, which were dismissed by this court by order dated January 9,2001. It is from that order that Father appealed.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Father, in his concise statement of matters complained of on appeal, states the following:

“(1) The trial court erred in dismissing Father’s exceptions interposed to the recommendation issued by the hearing officer on September 14, 2000.
“(2) The trial court erred in determining that monies distributed to Father through an estate now more than two years prior to the filing of Mother’s petition for modification was ‘income’ for support purposes where the facts of the case reveal that said funds had been utilized by Father to pay the outstanding debt for his post-secondary education and related expenses.
“(3) The trial court erred in determining that monies distributed to Father through an estate more than two years prior to the filing of Mother’s petition for modification was income for support purposes where the Supreme Court of Pennsylvania has granted the petition for allowance of appeal in the matter of Humphreys v. DeRoss, 737 A.2d 775 (Pa. Super. 1999), alloc. granted, 563 Pa. 216, 759 A.2d 371 (2000), and the court has directed the parties to address the following issues:
“(a) Is an inheritance included in the definition of ‘income’ as set forth in section 4302 of the Divorce Code, 23 Pa.CS. §4302?
“(b) If an inheritance meets the statutory definition of ‘income,’ should the entire inheritance be considered as income when calculating a support order or only the interest generated by the entire inheritance?
“(c) If an inheritance is not included when calculating a support order under the support guidelines, should it be considered a factor in deviating from the support amount determined by the guidelines?
“(d) If an inheritance is considered when calculating support, should it be allocated over the period of the child’s minority or limited to the year following receipt of the inheritance?
“(e) Should the amount of an inheritance affect the way in which it is considered for calculating a support order?
“(f) Should a payor who receives an inheritance be required to place in escrow an amount sufficient to secure the support obligation?”

DISCUSSION

Father’s appeal raises three main issues: did this court err in including in Father’s income for child support purposes the inheritance Father received (1) 20 months before the relevant modification petition was filed; (2) despite evidence being presented that Father used that money to pay off debt related to his post-secondary education; and (3) given the pendency before the Supreme Court of the Humphreys case.

Inclusion of August 1998 Inheritance in Income

Before this court, Father argued he did not know at the time he received his inheritance in August 1998 that it was income for support purposes. Although Humphreys was not decided until 1999, it was not inconceivable in August 1998 that inheritance might be treated as income. In fact, at oral argument, Father’s counsel admitted that many practitioners who regularly handled support matters assumed inheritance was income. More significantly, Father, at the time he received his inheritance, was paying only $126 per month in support for his minor child based on a part-time earning capacity of $600. Nonetheless, Father admittedly did not report to the court that he had received this money. A reasonably prudent person would have known that there might be some risk that his inheritance could be attributed to him as income for support purposes. Thus, Father’s decision not to inform the court of his inheritance was made at his own peril, and when balancing the equities of the situation and the best interests of the child, this court could not help but find that, given the Humphreys decision, the money Father received not only was income for support purposes but also should be added to his current income based on the spreading of that income over 190 months.

Father argued before this court that 23 Pa.C.S. §4352(e) barred modification of the support order prior to the date of the modification petition. However, an exception exists where the petitioner “was precluded from filing a petition for modification by reason of . . . misrepresentation of another party or other compelling reason.” In this case, the order appealed from did not set a retroactivity date earlier than the date of the modification petition. It was retroactive to April 17, 2000, the date of the petition. Thus, section 4352(e) does not apply. However, even if section 4352(e) did apply, failure to report income qualifies for the above-mentioned exception. See Simmons v. Simmons, 723 A.2d 221 (Pa. Super. 1998).

Inheritance Used To Repay Educational Debt

Father also argues that his inheritance should not have been treated as income because he spent the money to pay off part of a student loan and also a $16,500 “handshake” loan with a friend, which Father contends he used to pay his living and other expenses while he was in school. Setting aside the skepticism with which this court views the $16,500 repayment of an undocumented loan to a “friend,” Father overlooks that child support is a primary obligation of the parties and that, because it is “a parent’s inescapable duty to provide for the reasonable needs of one’s children to the best of his or her ability, Pennsylvania courts have sometimes required a parent to make sacrifices in order to achieve the support goal.” Humphreys, 737 A.2d at 779; Babish v. Babish, 361 Pa. Super. 118, 123, 521 A.2d 955, 958 (1987) (emphasizing that a parent has the primary obligation to support his children and that he may not diminish his ability to pay child support in order to ensure a more comfortable existence for himself).

Furthermore, Father did not cite to, and this court is not aware of, any authority that states that repayment of education-related debts is exempt from consideration for support purposes. For these reasons, the court rejected Father’s argument on this issue.

Grant of Allocatur in Humphreys

Father also contends the Supreme Court’s granting allocatur in Humphreys means that this court should not have found Father’s inheritance to be income. Although the Supreme Court appears, based on the issues it has accepted for appeal, to be considering whether or not the Superior Court erred in holding that inheritance is income for support purposes, the Superior Court’s ruling in Humphreys remains the law of this Commonwealth, at least for now. See Sorber v. American Motorists Insurance Co., 451 Pa. Super. 507, 510, 680 A.2d 881, 882 (1996) (“As long as [a] decision has not been overturned by our Supreme Court, it remains binding precedent.”). Thus, this court had no choice but to rule based on the law as it stood at the time.

CONCLUSION

For the foregoing reasons, the court’s January 9,2001 order should be affirmed.

      . Humphreys merely clarified statutory law that predated Father’s receipt of his inheritance. See Humphreys, 737 A.2d at 781-82 (Joyce, J., concurring).

      . Father actually got some benefit from not disclosing his inheritance to the court at the time of receipt: he had a lower support order for the period from August 1998 to April 2000 because the support order was not made retroactive to August 1998.


author: MORRIS, Member,

text:
    In re Anonymous No. 59 D.B. 95

      Disciplinary Board Docket no. 59 D.B. 95.
    April 26, 2001
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

MORRIS, Member,

I. HISTORY OF PROCEEDINGS

By order of the Supreme Court of Pennsylvania dated May 6, 1997, petitioner was suspended for a year and a day on account of his mishandling of a relatively small amount of money collected on behalf of a client.

A petition for reinstatement was filed on December 27, 1999. Hearings were held before Hearing Committee [ ] an July 6,2000. After receiving briefs from both parties, the Hearing Committee filed its report on October 24, 2000, recommending that reinstatement be denied.

No further briefs have been filed. The matter was adjudicated by the Disciplinary Board on January 17,2001.

II. FINDINGS OF FACT

(1) The Office of Disciplinary Counsel, the principal office of which is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Petitioner, [ ], was bom in 1953, was admitted to practice law in the Commonwealth of Pennsylvania in 1984, and his current address is [ ]. (Petitioner’s exhibit 1; N.T. pp. 10-11.)

(3) In 1992 petitioner was retained to do collection work on behalf of the [A] Association, which was a residential housing cooperative. In the course of collecting a certain account, petitioner failed to timely notify the client or promptly turn over collected funds. Specifically, on one occasion, a payment of $292 was not effectuated because petitioner’s check was returned for insufficient funds. A second collection in a similar amount was simply retained by the petitioner. Petitioner then ignored repeated requests for the funds by the client until complaint was made to Office of Disciplinary Counsel at which point petitioner turned over $584.

(4) By order of the Supreme Court of Pennsylvania dated May 6, 1997, petitioner was suspended from the bar of the Commonwealth of Pennsylvania for a period of one year and one day. (Petitioner’s exhibit 1.)

(5) Petitioner received an informal admonition on January 14,1993, at file number [ ] (formerly number [ ]), for violations of Rules of Professional Conduct 1.3 (diligence), 1.4(a) (communication), and 1.16(d) (declining or terminating representation), and two informal admonitions on March 12, 1999, at files [ ] (formerly [ ]), for violations of Rules of Professional Conduct 1.3 (diligence), 1.4(a) (communication), 1.5(b) (fees), and 1.16(d) (declining or terminating representation). (Petitioner’s exhibit 1.)

(6) Intertwined throughout petitioner’s legal career and his period of suspension is the matters of [B] v. [Re spondent], child support action originally filed in South Carolina at some time in 1983 or 1984 and soon pursued as a Uniform Reciprocal Enforcement of Support Action in the [ ] Court of Common Pleas. (ODC 1; N.T. pp. 67-68.)

(7) From 1987 through 1995, there was a repeating and continuous pattern of petitions for contempt, directions to appear, failures to appear, bench warrants, and re-listings. (ODC 1-29; N.T. pp. 74-90.)

(8) The common pleas court’s best success in obtaining petitioner’s presence came when it could locate him in another courtroom. (ODC 35; N.T. pp. 83-84.)

(9) An order of court dated October 24, 1995, stated that petitioner was served with notice of, but did not appear for, a hearing, so the case was continued pending his appearance. The order directed the issuance of a 10-day letter followed by a high priority arrest warrant and, when the petitioner was arrested, a request for a straight cash bond of $26,088 was to be made. (ODC 26.)

(10) A bench warrant for direct criminal contempt dated November 13, 1995, directed that petitioner be arrested and brought before the court because he failed to appear for a scheduled hearing. Bail was to be set in the amount of $26,088 cash. (ODC 29; N.T. pp. 88-89.)

(11) Petitioner could not be located for service of the November 13, 1995 bench warrant because petitioner, as had been his practice throughout the proceedings, changed his address without notice to the court. (ODC 2, ODC 33, p. 13; N.T. pp. 86-87.)

(12) Petitioner changed his address several times after the inception of the [B] v. [Respondent] matter, but failed to keep the court informed of his changes of address as ordered by the court. (ODC 2, ODC 33, p. 13; N.T. pp. 86-87.)

(13) Despite petitioner’s several changes of address which he failed to report to the court, he received notice of hearings by regular mail and certified mail. In many instances, he was personally served with notices, particularly on the rare occasions he appeared voluntarily for hearings, as well as those times when he was arrested and brought before the court. (ODC 10, ODC 18, ODC 22, ODC 24, ODC 26; N.T. pp. 86-87, 117-18.)

(14) On June 11,1998, petitioner was arrested in [ ] by Constables [C] and [D] pursuant to the outstanding warrant of November 13, 1995. (N.T. pp. 128-29, 130-34.)

(15) When the uniformed constables approached petitioner and asked his identity, he gave two different names, both of which were false identities. (N.T. pp. 132, 140.)

(16) Petitioner then ran from the constables, and Constable [C] gave chase on foot. (N.T. p. 132.)

(17) After running for two blocks, petitioner came to an automobile which was stopped at a traffic signal and attempted to gain access to the vehicle without the driver’s permission. He was unsuccessful because the vehicle’s doors were locked. (N.T. pp. 132-33.)

(18) Petitioner resumed his flight from Constable [C] for one block, but was apprehended. (N.T. p. 133.)

(19) ¡Petitioner was transported to [ ] for arraignment. (N.T. pp. 91, 129.)

(20)On June 17,1998, the Honorable [E] held a hearing on the issues of petitioner’s criminal and civil contempt in the matter of [B] v. [Respondent]. (ODC 33.)

(21) At the conclusion of the hearing on the criminal conteippt citation, petitioner was sentenced to 30 days in jail by the Honorable [E] who opined:

“[Respondent], I find you to be in direct criminal contempt for failure to appear. I do not accept your explanation. I think you’re a fine lawyer, I do think you are a fine lawyer. I do think that you fell on hard times, but I think that you escaped to [ ] and then escaped to [ ]. I think that you were never coming in here. I think that 20, 30, 50 years could have passed. Your child could have grown to old age, and you were never going to come in here. You were never going to pay a penny. You were going to intentionally skip this obligation. I don’t accept at all that this was a matter of hard times. I think it was intentional, and I think you left the jurisdiction because you are a lawyer and you know the ropes. I sentence you to a month in jail. That’s punishment, and if I ever see you again for missing a hearing I am going to put you in jail for six months,.... On the matter of civil contempt, I also don’t accept what you’re saying .... I also don’t buy that you haven’t been working at all. Your wife works, you work, you’re well-dressed. You just didn’t pay support .... Now I have the same comments on civil contempt . . . you’re not going to pay these arrearages. You’re going to die before you pay them off unless you hit the lottery. But at least you’ll make some payment, to help your children who need help even when they’re 17 and 18 so that they can have some quality of life. So get a job and pay half of what you make against these arrearages.” (ODC 33, pp. 27-37.)

(22) As a result of his various contempts, petitioner has been incarcerated for 82 days. (Petitioner’s brief p. 10.)

(23) By order of court dated March 30, 1999, the [B] v. [Respondent] case was dismissed and all arrears dismissed, pursuant to a “joint motion motion [sic] by plaintiff and defendant to dismiss,” presented by petitioner. (Petitioner’s exhibit 1, petitioner’s exhibit 2.)

m. CONCLUSIONS OF LAW

(1) Petitioner has failed to demonstrate by clear and convincing evidence that he has the moral qualifications required for admission to practice law in the Commonwealth of Pennsylvania, as required by Rule 218(c)(3)(i), Pa.R.D.E.

(2) Petitioner failed to demonstrate by clear and convincing evidence that the resumption of the practice of law within the Commonwealth by petitioner will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest, as required by Rule 218(c)(3)(i), Pa.R.D.E.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by petitioner. Petitioner was suspended for a year and a day pursuant to Supreme Court order of May 6, 1997.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume practice until reinstated by order of the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency, and learning in the law required for admission to practice in this Commonwealth. In addition, petitioner has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

A reinstatement proceeding is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitative efforts the lawyer has made since the time the sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia News Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was suspended as a result of his mishandling of client funds in 1992 and 1993. The suspension was imposed on May 6, 1997; petitioner applied for reinstatement on December 12, 1999.

In support of his evidentiary burden, petitioner argues that he has suffered greatly from both his suspension and his travails in the [ ] Court of Common Pleas. He dedares that he has turned his life around in part through Bible study and notes that both of his support cases have now been dismissed by agreement. Petitioner called no character witnesses on his behalf.

It remains, however, that petitioner’s conduct during the period of his suspension — namely, the warrant-dodging and the unseemly arrest — reflects poorly upon his moral fitness. Essentially, petitioner spent 15 years avoiding his court-ordered support obligations. These efforts included repeated and consistent failures to appear in court, establishing new addresses without informing the court, and finally, in 1998, a street chase in [ ] which culminated in petitioner’s arrest and incarceration for criminal contempt.

Reinstatement has been consistently denied in cases of unlawful or shabby conduct during the suspension period. In re Anonymous No. 22 D.B. 77, 8 D.&C.4th 288 (1990), involved the petition for reinstatement of an attorney who had been suspended for a period of three years. The attorney, by his own admission, failed to file federal and state income tax returns from 1984 through 1988, the intervening period between the imposition of his suspension and his reinstatement hearing. The board stated “[t]his is not the type of conduct which one would expect from an individual who is looking forward to the resumption of a profession which demands the highest moral standards.” Id. at 293. The board concluded that the attorney completely failed to recognize the nature of his wrongdoing. The Supreme Court concurred with the board’s recommendation for a denial of the petition for reinstatement. Id. at 296.

In In re Anonymous No. 53 D.B. 75, 20 D.&C.3d 278 (1980), a petition for reinstatement was denied on the basis of the attorney’s conduct that intervened between the imposition of his suspension from which he sought reinstatement, and the disposition of that petition. The conduct involved charges of defiant trespass and open lewdness. The Hearing Committee found, and the board agreed, that the attorney failed to offer a satisfactory explanation for the conduct in question which, in turn, led to the conclusion that the attorney failed to meet his burden of proof on the issues of his moral qualifications and whether his resumption of the practice of law would be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. Id. at 289. Consequently, the board recommended, and the Supreme Court agreed, that the petition for reinstatement should be denied. Id. at 290.

In In re Anonymous No. 1 D.B. 94, 34 D.&C.4th 236 (1996), a petition for discipline alleged that the respondent-attorney had engaged in professional misconduct by fleeing Pennsylvania in order to avoid incarceration. Id. at 237. The board stated that there was no doubt that the attorney’s flight had an adverse impact on the public trust, since as “an officer of the court [he had] a duty to uphold the law, not subvert it.” Such conduct, the board wrote, “discredits the legal profession and makes a mockery of the legal system. An attorney who shows such disrespect for the law, forfeits his privilege to serve as an attorney and is not competent to represent members of the public or to appear before the courts.” Id. at 245. Office of Disciplinary Counsel v. Casety, 511 Pa. 177, 512 A.2d 607 (1986). The board recommended, and the Supreme Court concurred, that the appropriate discipline for the attorney’s flight from prosecution was disbarment. Id. at 246-47.

In each of the cited cases, as in this case, the behavior is simply insistent with establishing the moral fitness to practice law.

The board also questions whether petitioner has soundly reflected upon his failings and derelictions. Rather, it seems that at every stage, he has preferred to blame someone else. At his initial disciplinary hearing, petitioner unconvincingly sought to characterize the charges against him as racially motivated. (Hearing Committee report p. 14.) In his reinstatement hearing, he griped extensively about the motivations and procedures of Office of Disciplinary Counsel (petitioner’s brief pp. 1-5) and indulged in unsubstantiated, attacks against live witnesses. Specifically, he accused the arresting constable of exaggerating his testimony because the constable was supposedly embarrassed at being outrun by petitioner. (N.T. pp. 134-36.) Additionally, he baselessly attacked the credibility of the [ ] Court employee who testified to the history of petitioner’s two support proceedings. Without any substantiation, petitioner accused the employee of falsifying the file and removing documents. (N.T. pp. 104-105.)

The Hearing Committee noted, and we adopt the view, that petitioner’s behavior at the hearing and his highly questionable testimony concerning his 1998 arrest reflect poorly upon his current fitness as an attorney.

Petitioner has not demonstrated that he has made the requisite changes that would warrant re-admission to the bar. On the contrary, his 1998 arrest and his conduct at the instant hearing demonstrate a lack of respect for the justice system.

V. CONCLUSION

Petitioner has not met his burden to show by clear and convincing evidence that he has the moral qualifications required for admission to the practice of law in Pennsylvania, nor has petitioner proven by clear and convincing evidence that his resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice, nor subversive to the public interest. Petitioner has a long and continual history of flouting court orders and failure to respect the legal system which has continued until the present day. Under such circumstances, it is recommended that his petition be denied.

Board Member Caroselli did not participate in the January 17, 2001 adjudication.

ORDER

And now, June 28, 2001, upon consideration of the report and recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania dated April 26,2001, the petition for reinstatement is denied.

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.

      . At this point, petitioner was not untutored in the arrest process, having been previously arrested in 1993 in the matter of [F] v. [Respondent], also involving child support. (ODC 33, p. 10.)


author: THOMSON, S.J.,

text:
    Pavlak v. Dyer

      C.P. of Pike County,
    no. 1099-2001 Civil.

      Charles Kannebecker, for plaintiff.

      John R. Nealon, for defendant.
    January 16, 2003
   THOMSON, S.J.,

The above-captioned matter is decided simultaneously with the companion case of Robert Rohena v. Michael Dyer, no. 1100—2001 Civil.

INTRODUCTION

The current motion involves a discovery dispute that centers upon the conflict between the protection afforded by the attorney work-product doctrine and the required disclosure of the grounds for an expert witness opinion. For the reasons below, plaintiff’s attorney is ordered to provide defendant’s counsel with a redacted copy of all written correspondence between plaintiffs attorney and plaintiffs expert witness. Specifically, plaintiff’s counsel must produce a copy of the letters sent to his expert, but he may redact his opinion work product from the letters before forwarding them to defense counsel. In order to ensure that only attorney opinion work product (the lawyer’s mental impressions, conclusions, legal research, legal theories and strategy) has been edited out, plaintiff’s attorney is also ordered to provide this court with copies of the redacted correspondence and copies of the complete, unedited letters. If this in camera inspection of the documents reveals that plaintiff’s counsel has inappropriately redacted factual allegations or anything else that does not constitute attorney opinion work product, then this court shall forward copies of the unedited letters to defendant’s attorney as an immediate sanction.

FACTUAL BACKGROUND

The underlying case involves a personal injury suit following an automobile accident that occurred on August 8,200L During discovery, defendant Michael Dyer, through his attorney, issued a subpoena requesting medical records and documents from plaintiff’s expert witness, who is also the plaintiff’s treating physician. Although plaintiff’s lawyer conceded at oral argument that the medical records were discoverable because plaintiff’s physical condition is at issue, he objected to the discovery of attorney correspondence sent to his expert witness on the grounds that such letters constituted attorney work product. Defendant counters by arguing that anything the testifying expert witness reviews in preparing his testimony is discoverable. Essentially, this discovery dispute focuses on the tension between Pa.R.C.P. 4003.3 which protects attorney work product from discovery, and Pa.R.C.P. 4003.5 which allows for the discovery of “facts known and opinions held” by testifying expert witnesses including the grounds for each opinion, even if those facts were acquired in anticipation of litigation.

THE APPLICABLE PENNSYLVANIA RULES OF CIVIL PROCEDURE

First we note the applicable Pennsylvania rules. Pa.R.C.P. 4003.1 defines the broad scope of discovery and states that, subject to the provisions of Rules 4003.2 to 4003.5, “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....” The attorney work product privilege is codified in Rule 4003.3, which states in pertinent part: “Subject to the provisions of Rules 4003.4 and 4003.5 . . . discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” But Pa.R.C.P. 4003.5 allows the discovery of “facts known and opinions held by an expert,” including a summary of the grounds for each opinion. We also note that we are not addressing any assertion of the attorney-client privilege because the communications here were not made to a client. Cf., McGovern v. Hospital Service Association of Northeastern Pa., 785 A.2d 1012 (Pa. Super. 2001).

Defendant’s brief suggests that even if the communications to the plaintiff’s expert contained mental impressions or legal theories of the plaintiff’s attorney, “they lose any protection they may have had once they are disclosed to the [testifying expert], a third party not protected by the attorney-client relationship.” Def. ’s supplemental brief at 2. Although some federal courts have moved toward such a “bright-line” rule requiring full disclosure of anything a testifying expert witness examines prior to forming an opinion, the defendant offers no Pennsylvania controlling authority in support of this position.

PENNSYLVANIA APPELLATE DECISIONS

Although these cases are not directly on point, there are a few Pennsylvania appellate decisions which support our conclusion that the attorney’s opinion work product should still be protected by redacting those portions of the attorney’s correspondence. The Superior Court has noted that “Pa.R.C.P. 4003.3 provides that work product is discoverable, with the exception of the mental impressions and opinions of the party’s attorney and other representatives.” Dominick v. Hanson, 753 A.2d 824, 826 (Pa. Super. 2000). The sound reasoning behind such protection is applicable to this current dispute: “The protection against the discovery of work product is designed to shelter ‘the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client’s case.’ ” Birth Center v. St. Paul Companies Inc., 727 A.2d 1144, 1165 (Pa. Super. 1999). (citations omitted) However, the letters sent to the plaintiffs’ ex-, pert are not entitled to such protection in their entirety. Factual allegations within those letters are discoverable because they are not the equivalent of an attorney’s.legal theories or strategies, and they may have been relied upon by the expert in forming the expert opinion.

Plaintiffs cite Commonwealth v. Noll, 443 Pa. Super. 602, 662 A.2d 1123 (1995), in support of their position that correspondence with someone employed by a lawyer is protected work product. Indeed, the Noll opinion states that attorney work product includes “interviews, statements, memoranda, correspondence, briefs, mental impressions [and] personal beliefs.” Id. at 608, 662 A.2d at 1126, quoting Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-94, 91 L.Ed. 451, 461 (1947). (emphasis added) But that quote from the Noll case is not controlling in this present dispute for two reasons. First of all, while this court recognizes that an attorney’s letters may be protected work product, the issue in this case centers upon the possible dissolution of that protection once the letters are presented to an expert witness who will testify at trial because a party must disclose the basis of an expert’s opinion. That particular issue was not presented in Noll. Moreover, the Noll case involved the application of the work-product doctrine and the attorney-client privilege in order to prevent an expert from testifying because the expert who had been originally hired by one party was about to be used at trial by the opposing party, Noll, 443 Pa. Super. 602, 662 A.2d 1123, a fact scenario that is inapplicable to our case.

Plaintiffs attorney also asserts that Commonwealth v. Neill, 362 Pa. 507, 67 A.2d 276 (1949) is on point, and the following quote was listed in plaintiff’s brief:

“The defendant’s counsel complains that the district attorney did not submit to defendant’s counsel a pretrial communication to the district attorney from two of the expert witnesses called by the Commonwealth Defendant’s counsel asserts that if he had been informed of this report he might, at the cross-examination of these witnesses, have brought out these circumstances to the attention of the jury. A district attorney is under no obligation to acquaint a defendant’s counsel with all his oral or written communications with expert witnesses or other witnesses whom he proposes to call in the trial of a criminal case.” Neill, 362 Pa. at 520, 67 A.2d at 282 (concurring opinion by J. Maxey). (emphasis added)

Plaintiff’s counsel erroneously asserts that the above quote is part of the relevant holding. However, this quote comes directly out of a concurring opinion, so it absolutely cannot be considered a holding or controlling authority. Furthermore, Neill was a criminal case and not a civil one like the controversy before us, and it was decided well before the most recent amendments to Pennsylvania’s Rules of Civil Procedure. The amended rules have radically changed the prior practice as to discovery of documents. See Civil Procedure Rules Committee explanatory comment to Rule 4003.3 (1978).

Nevertheless, a full review of Neill reveals another quote which indicates the Pennsylvania Supreme Court’s attitude (at least in 1949) towards discovery of communications with expert witnesses: “It has never been considered, nor held to be, the duty of a district attorney, in the absence at least of a request, to exhibit a private communication or ‘report’ of his expert witnesses to defendant’s counsel, any more than it would be his duty to acquaint opposing counsel with conversations or communications, oral or written, which he might have had with any other witnesses called on behalf of the Commonwealth.” Neill, 362 Pa. at 515, 67 A.2d at 280. (emphasis added) But in the case before us today defendant Dyer has made a request for the documents in question through the issuance of a subpoena, so Neill is inapposite. We note that the attempt to use Neill as authority in this case indicates the dearth of Pennsylvania case law that is on point.

PENNSYLVANIA TRIAL COURT DECISIONS

Defendant cites at least one Pennsylvania case which partially supports his position. In Thomas v. Germantown Hospital, 24 Phila. 417 (Philadelphia Cty. 1992), the plaintiffs tried to prevent an expert from testifying by claiming that a letter sent to the expert from the plaintiff’s attorney was work product. The Philadelphia court partially rejected this claim and stated that “The work product privilege, however, protects from discovery only an attorney’s mental impressions, conclusions and opinions respecting legal theories and strategies [citing Hickman v. Taylor, 329 U.S. 495]. Plaintiff counsel’s letter to Dr. Lesser requesting an expert opinion and Dr. Lesser’s expert opinion letter do not violate the work product privilege.” Thomas, 24 Phila. at 422. Accordingly, this court concludes that the portion of plaintiff counsel’s letter which requests an expert opinion and presents any facts, and any portion which asks about his availability for depositions, should be discoverable. However, Thomas does not stand for the proposition that all correspondence is automatically discoverable. In fact, the above quote supports our conclusion that even though the requested letters have been reviewed by a testifying expert witness, the segments of those letters which contain the “attorney’s mental impressions, conclusions and opinions respecting legal theories and strategies” are still protected from discovery.

A thorough search for other Pennsylvania, decisions relating to discovery and expert witnesses revealed Boyd v. Milton S. Hershey Medical Center, 39 D.&C.4th 337 (Dauphin Cty. 1998). While the trial court in that case invoked Rule 4003.5(2) to order further discovery upon the plaintiffs’ expert witnesses, the Boyd court reasoned that the defendants had “shown cause” for seeking such information because they did so in contemplation of a Frye hearing. But the dispute before us today is not in anticipation of a Frye hearing, and defendant Dyer has not offered any extraordinary cause for obtaining the disputed documents.

FEDERAL CASES ARE SPLIT ON THIS DISCOVERY ISSUE

Federal courts are split on this conflict between the work-product doctrine, as codified in Fed.R.C.P. 26(b)(3), and the disclosure of information considered by a witness in forming an expert opinion, as mandated by Fed.R.C.P. 26(a)(2) and allowed by Fed.R.C.P. 26(b)(4). Before the 1993 amendments to the Federal Rules of Civil Procedure, in Bogosian v. Gulf Oil, 738 F.2d 587 (3d Cir. 1984), the Third Circuit ruled that opinion work product is absolutely protected from discovery, but factual work product could be discovered. On the other hand, in Boring v. Keller, 97 F.R.D. 404, 407 (D. Colo. 1983), the district court in Colorado stated that the opinion work product rule is no exception to discovery when the contested documents are previewed by an expert witness before forming his or her expert opinion. The defendant in today’s dispute argues this latter position, while the plaintiff’s attorney asserts the protection of his work product.

Even after the 1993 amendments to the federal rules, the controversy continued. In Haworth Inc. v. Herman Miller Inc., 162 F.R.D 289 (W.D. Mich. 1995), the district court for the Western District of Michigan held that the work product privilege in Fed.R.C.P. 26(b)(3) still protected an attorney’s mental impressions and opinions, even when this “core” work product was presented to an expert. Id.; see also, Rail Intermodal Specialists v. General Electric, 154 F.R.D. 218 (N.D. Iowa 1994) (discovery of counsel’s letters to experts were barred by the work-product doctrine). The Haworth court, however, noted that Fed.R.C.R 26(a)(2) specifically required the disclosure of factual information considered by an expert, even if not relied upon in formulating the expert opinion. Id. at 296.

But the Haworth decision has been widely criticized and it appears to now represent the minority position among federal courts. There are a plethora of recent decisions in which federal courts ruled that the disclosure requirements of Rule 26(a)(2) “trump” any assertion of the work product privilege. See e.g., Weil v. Long Island Savings Bank, 206 F.R.D. 38 (E.D. N.Y. 2001); Suskind v. Home Depot Corp., 2001 U.S. Dist. Lexis 1349, WL 92183 (D. Mass. 2001); B.C.F. Oil Ref. Inc. v. Consolidated Edison Co., 171 F.R.D. 57 (S.D. N.Y. 1997); Musselman v. Phillips, 176 F.R.D. 194 (D. Md. 1997); Karn v. Ingersoll Rand, 168 F.R.D. 633 (N.D. Ind. 1996); Intermedies Inc. v. Ventritex Inc., 139 F.R.D 384 (N.D. Cal. 1991).

Even the leading federal practice treatises are equally divided. Section 26.80[l][a] of Moore’s Federal Practice (Third ed., 2001) states that the 1993 amendments were not intended to abrogate the enhanced protection of opinion work product recognized by the Supreme Court in Upjohn v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 66 L.Ed. 2d 584 (1981). But Wright and Miller’s Federal Practice and Procedure §2031.1 (1994) states that “counsel should now expect that any written or tangible data provided to testifying experts will have to be disclosed.” See also, Weil.

One of the policies behind the “bright-line” full disclosure rule is that litigation certainty will be achieved because lawyers will know that any documents provided to a testifying expert will be subject to discovery. But Pennsylvania’s lack of clear appellate authority favoring such a bright-line rule, and the difference between this state’s discovery rules and the federal rules, makes this court reluctant to adopt such a policy. While a full disclosure rule would augment the defendant’s ability to discern the amount of attorney influence on the expert’s testimony, that reason alone is not enough for us to adopt such a wide-sweeping rule. Moreover, the District Court for the Middle District of Pennsylvania has recently declared that “The policy reasons supporting the ‘bright-line’ rule in favor of disclosure of materials disclosed to an expert are not compelling and ignore the policy considerations that compel protection of core work product.” Krisa v. Equitable Life Assur. Soc’y, 196 F.R.D. 254, 259 (M.D. Pa. 2000) (holding that cover letters from counsel to an expert that do not contain mental impressions, opinions or conclusions of counsel are discoverable, but written notes that contained the lawyer’s mental impressions were protected).

A REVIEW OF APPLICABLE CASES FROM OTHER JURISDICTIONS

After conducting an exhaustive review of Pennsylvania law on the subject, this court concludes that there is no controlling authority directly on point. Accordingly, in addition to our brief analysis of federal case law, decisions from other state courts have been reviewed as persuasive authority in an effort to reach the most appropriate resolution of this discovery dispute.

Faced with the identical issue that we address today, the Virginia Circuit Court ordered a party to turn over an edited copy of an attorney’s correspondence with his expert witness, with the counsel’s work product redacted. Moyers v. Steinmetz, 37 Va. Cir. 25 (Winchester Cir. Ct. 1995). After noting that Virginia’s discovery rules are almost the same as Fed.R.C.P. 26(b), the Moyers court decided to strike a balance between the discovery of factual information considered by an expert and the protection afforded by the work-product doctrine. Accordingly, the Virginia Circuit Court declared “to the extent that any communication from counsel to its expert contains a statement of facts, then that material is discoverable ...,” but the “mental impressions, conclusions, opinions and legal theories” of those letters were to be edited out. Id. at 29. This court agrees with that analysis and adopts a similar approach in the order that accompanies today’s opinion.

In order to clarify what constitutes protected opinion work product, we draw attention to an unreported Connecticut decision and another Virginia case. In Wilson v. Rogers, 53 Va. Cir. 280 (Portsmouth Cir. Ct. 2000), the Virginia Circuit Court ruled that “[b]y disclosing material to an expert to assist him in preparing for trial, counsel opens the discovery door. On the other hand, asking an expert to assist counsel in preparation for cross-examination of another expert moves into the area of legal theories which are protected....” Id. at 282. In Murchie v. Hurwitz, 6 Conn. L. Rptr. 300, 1992 Conn. Super. Lexis 1026 (April 7,1992) (unreported decision), the Superior Court of Connecticut determined that a party has the right to investigate the factual basis of any expert opinions, the nature of any facts that may have been disregarded by the expert as not being relevant to his opinion, and the nature of the request made to the expert. Specifically, as applied in our case, defendant Dyer has the right to review any information contained in the contested correspondence which constitutes an assertion of fact relating to the incident, or a version of the facts relating to the incident, and the nature of any requests made to the expert. But the plaintiffs are not required to disclose information concerning the mental impressions, conclusions, opinions, legal theories or legal strategies of their attorney.

Legal research reveals that “there is a sea of authority on this question from which one may pluck a fish to suit one’s taste.” Moyers, 37 Va. Cir. at 26. There are other state court decisions which utilize our balancing approach, see e.g., McKinnon v. Smock, 264 Ga. 375, 378, 445 S.E.2d 526, 528 (“correspondence from an attorney to an expert is protected from disclosure to the extent that the correspondence contains opinion work product of the attorney”) (emphasis added), or favor the work-product doctrine. Holmes v. Weissman, 674 N.Y.S.2d 215, 217, 251 A.D.2d 1078, 1079 (1998) (attorney’s letter to medical expert was protected by the work product privilege). On the other hand, there are several states which mirror the federal trend toward a bright-line full disclosure rule. See e.g., Rowlands v. Choon Lai, 1999 Del. Super. Lexis 176, at *3 (“Delaware courts do not distinguish documents sent to experts based on what they contain. Any correspondence to an expert who will be testifying waives the privilege no matter what is contained in the documents.”); Emergency Care Dynamics v. Superior Ct. of the State of Arizona, 188 Ariz. 32, 33, 932 P.2d 297, 298 (1997) (“A lawyer foregoes work-product protection for communications with an expert witness concerning the subject of the expert’s testimony even if the expert also plays a consulting role.”).

This court believes that a balancing approach, where factual allegations reviewed by an expert are discoverable but opinion work product is still protected, is the best approach. Furthermore, this resolution is consistent with the Pennsylvania Rules of Civil Procedure. Rule 4003.3 “is carefully drawn and means exactly what it says. It immunizes the lawyer’s mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories, nothing more.” Civil Procedure Rules Committee explanatory comment to Rule 4003.3 (1978). (emphasis added)

Accordingly, the following order is entered:

ORDER

Upon consideration of defendant’s motion to strike plaintiff’s objections to defendant’s subpoenas, defendant’s brief in support submitted thereon, plaintiff’s brief in opposition, defendant’s supplemental brief, plaintiff’s reply brief, the record in its entirety, and after oral argument thereon, this court issues the following order:

Defendant’s motion to strike plaintiff’s objections to defendant’s subpoenas is granted in part and denied in part. For the reasons above, plaintiff’s attorney is ordered, within seven days from the date of this order, to provide defendant’s counsel with a redacted copy of all written correspondence between plaintiff’s attorney and plaintiff’s expert witness. Specifically, plaintiff’s counsel must produce a copy of the letters sent to his expert, but he may redact his opinion work product from the letters before forwarding them to defense counsel. In order to ensure that only attorney opinion work product (the lawyer’s mental impressions, conclusions, legal research, legal theories and strategy) has been edited out, plaintiff’s attorney is also ordered, within seven days, to provide this court with copies of the redacted correspondence and copies of the complete, unedited letters. If this in camera inspection of the documents reveals that plaintiff’s counsel has inappropriately redacted factual allegations or anything else that does not constitute attorney opinion work product, then this court shall forward copies of the unedited letters to defendant’s attorney as an immediate sanction.

      . Pa.R.C.P. 4003.5, entitled “Discovery of expert testimony,” clearly differentiates between what we shall refer to as a “testifying expert,” a person that is expected to be called as a witness at trial, and experts who have been retained or specially employed in anticipation of litigation and who are not expected to be called as witnesses at trial, whom we shall refer to as non-testifying “consultants.” This opinion only addresses communications with “testifying experts.”

      . Pa.R.C.P. 4003.5(2) states: “Upon cause shown, the court may order further discovery by other means . .. .”

      . When analyzing these federal cases, one should be cognizant of the fact that the applicable discovery rules in Pennsylvania are slightly different than the Federal Rules of Civil Procedure. For example, Fed.R.C.P. 26(b)(3) permits discovery only when the party seeking discovery shows substantial need of the materials in the preparation of his case and is unable, without undue hardship, to obtain a substantial equivalent of the materials by other means. Under Pennsylvania’s Rule 4003.3, such a showing of substantial need and undue hardship is not required. See Civil Procedure Rules Committee explanatory comment to Rule 4003.3. Also note that Fed.R.C.P. 26(a)(2)(B) mandates the issuance of a written expert report in most cases, while Pa.R.C.P. 4003.5 allows for an expert to answer interrogatories with a signed, written report, but does not require one.
      Both the federal rules and Pennsylvania’s rules are similar in that they allow for the discovery of the facts known and opinions held by experts. See Fed.R.C.P. 26(b)(4); Pa.R.C.P. 4003.5. But Fed.R.C.P. 26(a)(2)(B) is more detailed in that it requires the expert report to disclose “the data or other information considered by the witness in forming the opinions.” In Rule 4003.5, Pennsylvania only mandates “[djiscovery of the facts known and opinions held by an expert” including a summary of the grounds for each opinion.


author: FEUD ALE, J.,

text:
    York County Bar Association v. Kirk

      C.P. of York County,
    no. 99-SU-00773-07.

      Rees Griffiths and Robert J. Schefter, for plaintiff.

      Jack F. Ream and Marc G. Tarlow, for defendant.
    December 20, 2002
   FEUD ALE, J.,

In 1999, the York County Bar Association (YCBA) brought an action against William J. Kirk, a licensed certified public accountant for the unauthorized practice of law. By coincidence, the action was brought on the 100th anniversary of the first enactment of an unauthorized practice of law statute. Also noteworthy, accounting was first officially recognized as a profession in the United States, in the late 1890s.

In any event, the YCBA alleged Kirk engaged in the unauthorized practice of law by preparing and filing articles of incorporation, advertising notices of incorporation in general and legal newspapers, and holding himself out as being able to provide such services.

It is not disputed that Kirk held himself out to the public as having an accounting practice which focused on “business set-up assistance,” “fictitious name & corp. filing,” and “small business consulting.” In his answer, defendant Kirk admitted preparing the articles of incorporation advertising the notices but denied these actions constitute the unauthorized practice of law. In the new matter, defendant Kirk alleged restraint of trade by the plaintiff. Plaintiff denied these allegations in a timely reply to new matter filed October 26, 1999.

Kirk admitted that during the period of 1995 to 1999, he prepared and filed 20 articles of incorporation, in which he recommended that the client choose Pennsylvania business stock corporations over other possible entities (including limited liability corporations — LLCs), because of defendant Kirk’s understanding of the possible tax consequences involved, and the ability of the corporation to sell stock.

According to his deposition Kirk believed that LLCs are inferior because their income is taxed under the rules governing partnerships, while shareholders who operate stock companies are taxed under the rules of corporations and may elect subchapter status. In Kirk’s view, a sub S shareholder who both owns and operates his business may avoid payroll and social security taxes for himself by electing to pay himself a small salary and making large shareholder distributions. Kirk allegedly heard this at continuing education classes. However, according to the YCBA this purported tax advantage is illusory, since “authoritative publications” make clear that one who owns and operates his own subchapter business must fairly compensate himself for his services for payroll deduction purposes and failure to do so subjects the taxpayer to substantial penalties. Further, YCBA asserted that Kirk’s belief that LLCs are taxed under the rules governing partnerships (as opposed to corporate taxation rules which apply to stock corporations) is also erroneous.

The cases describe “legal practice” as exercising judgment which “requires the abstract understanding of legal principles and a refined skill for their concrete application” — in those circumstances where legal judgment is called for. Kohlman v. Western Pennsylvania Hospital, 438 Pa. Super. 352, 357, 652 A.2d 849, 851(1994) (citing, Dauphin County Bar Association v. Mazzacaro, 465 Pa. 545, 351 A.2d 229 (1976)). An attorney applies legal knowledge or judgment in at least three ways:

(1) He instructs and advises clients in regard to the law, so that they may properly pursue their affairs and be informed as to their rights and obligations;

(2) He prepares for clients documents requiring familiarity with legal principles beyond the ken of the ordinary layman — for example, wills, and such contracts as are not routine nature;

(3) He appears for clients before public tribunals to whom is committed the function of determining rights of life, liberty, and property according to the law of the land, in order that he may assist the deciding official in the proper interpretation and enforcement of the law.

According to Kirk, pursuant to 63 P.S. §9.2, the breadth of public accounting has been recognized with the expansion in 1996 of the applicable definition:

“Public accounting. Offering to perform or performing for a client or potential client:
“(1) Attest activity;
“(2) Other professional services involving the use of accounting skills including but not limited to, management, advisory, or consulting services, business valuations, financial planning, preparation of tax returns or furnishing advice on tax matters by a person holding out as a certified public accountant, public accountant or firm.” (emphasis added)

DISCUSSION

Interestingly, Kirk begins his brief in opposition to the motion for summary judgment by quoting Alexis de Tocqueville and former Supreme Court Justice William O. Douglas, in an apparent attempt to show that those commentators would support defendant’s proposition that laymen, or at a minimum, accountants, should be permitted to engage in what we characterize as the “limited or consulting” practice of law.

According to de Tocqueville and Justice Douglas:

“In no country in the world does the law hold so absolute a language as in America; and in no country is the right of applying it vested in so many hands.[]
“But it is becoming clear that more and more of the effort in ferreting out the bases of claims and the agencies responsible for them and in preparing the almost endless paperwork for their prosecution is work for laymen. There are not enough lawyers to manage or supervise all of these affairs; and much of the basic work done requires no special legal talent. Yet, there is a closed-shop philosophy in the legal profession that cuts down drastically active roles for laymen.”

We concur with Justice Douglas that there is a “closed-shop” mentality in the legal profession and with de Tocqueville that in no country is the right of “applying the law” vested in so many hands. Kirk also notes that the YCBA suit was not prompted by any complaint from any clients of Kirk’s. In ending their brief as they began, counsel for Kirk (in apparent denigration of the closed-shop mentality, or in the best spirit of advocacy) cited the biting wit of H.L. Mencken, who said: “What they say is not about money, it’s about money.”

Clearly, Kirk by his many candid deposition admissions against interest, engaged in the patent and palpable practice of law. Despite what he characterizes as his limited consulting actions, he engaged in the practice of law when he gave general legal advice and facilitated the forming of, and choice of, a legal business entity. Also, we are skeptical about his motive, {i.e., postulating or is it posing) that he has taken it upon himself to break a “bad or outdated law” versus possible financial self-preservation. In any event, if we gave our imprimatur to such, the obvious concern is that we open the door to the slippery slope that impacts the “good laws.”

Notwithstanding the above, in this case at least, we agree with Voltaire who also stated, “a legal dispute means both parties are wrong,” and as Benjamin Cardozo stated, “the difference is no less real because it is of degree.” This court believes that as taxes and methods of forming and financing businesses have become more complicated that Adlai Stevenson’s arguably “bitingly witty” comment, “it’s not a profession at all but a business service station and repair shop” applies to both business lawyers and accountants.

While we claim no great legal depth or breadth in the area of business incorporations and tax consequences appurtenant thereto; we believe that regardless of who prepares the “container” a client should be free to seek “counsel” in the open market (attorney and/or accountant) concerning the “contents.”

However, we also believe that the ultimate resolution of these issues does not lie with this humble court of common pleas, but initially with the state legislature and ultimately (if the statute was modified) with the Pennsylvania Supreme Court. See Cole v. Price, 758 A.2d 231, 233 (Pa. Super. 2000). “First, the power to regulate and define what constitutes the practice of law is vested in our Supreme Court.”

We, therefore, enter the following order.

ORDER

And now, December 20, 2002, upon consideration of the respective briefs submitted by the parties and oral argument, it is hereby ordered and decreed that plaintiff’s motion for summary judgment is granted.

Defendant, William J. Kirk, is permanently enjoined from engaging in the aforementioned practice of law generally, and specifically from engaging in the acts of advising, participating in, or otherwise representing clients in connection with the formation of business entities, including the preparation and filing of documents necessary to effect the formation of business entities including, but not limited to, articles of incorporation.

      . A. de Tocqueville, Democracy in America, 89 (1939)

      . Johnston v. Avery, 393 U.S. 481, 491 (1969) (concurring opinion).

      . Adlai Stevenson on Corporate Law. The Papers of Adlai Stevenson, 1900-1941, Walter Johns and Carol Evans, eds. 1972.