text:
    Wynn v. Zamper

      C.P. of Lehigh County,
    no. 2003-C-104.

      John W. Nails, for plaintiff.

      Dennis J. Morello, for defendant.
    June 9, 2003
   BLACK, J.,

This matter comes before the court on the defendant’s motion for judgment on the pleadings, alleging that the plaintiff’s personal injury claim is barred by the two-year statute of limitations at 42 Pa.C.S. §5524. For the reasons set forth below, the defendant’s motion must be granted.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff was injured on January 13, 2001, when his vehicle was struck by a vehicle operated by the defendant. The plaintiff’s complaint was filed on January 14,2003. The defendant filed an answer to the complaint asserting the statute of limitations as a defense. The plaintiff’s reply to new matter denied generally that the statute of limitations had expired, but alleged no facts to support the tolling of the statute for any reason.

The defendant has now moved for judgment on the pleadings on the ground that the suit is time-barred. The plaintiff’s response to this motion includes numerous factual averments not of record. Technically, we could ignore these factual averments because they have not been pled. However, if we were to grant the defendant’s motion under these circumstances, we would allow the plaintiff leave to amend his reply to new matter to incorporate these averments. The case would then come back before us on the defendant’s motion for summary judgment. Rather than delay the matter in this fashion, we have for purposes of this motion treated the factual averments in the plaintiff’s response as part of the plaintiff’s reply to new matter. Hence, the pertinent facts are as follows:

Promptly after the accident of January 13, 2001, the plaintiff notified the defendant and his automobile insurance carrier, Allstate Insurance Company, of the pendency of the plaintiff’s claim. At that time the Allstate adjuster informed plaintiff’s counsel of Allstate’s intent to resolve the matter without the need for litigation. On June 13, 2002, the Allstate adjuster notified plaintiff’s counsel by letter that Allstate was still waiting for a medical specials package and a demand from him. Plaintiff’s counsel eventually furnished this information to the Allstate adjuster in October 2002.

On October 16, 2002, Allstate’s adjuster notified plaintiff’s counsel by letter that Allstate was still awaiting an authorization from him to obtain MRI films of the plaintiff, which plaintiff’s counsel had agreed to furnish, so that the films could be read by an independent radiologist. A second request for such an authorization was made by letter dated November 21,2002. In her November21,2002 letter, Allstate’s adjuster informed plaintiff’s counsel that she could not go forward with the case without such an authorization.

On November 27,2002, the authorization having been received, Allstate’s adjuster notified plaintiff’s counsel by letter that the MRI films had been requested but had not yet been received. Her letter indicated the name of the doctor who would be reading the films for Allstate, and closed, “I will be in touch with you once I receive the report and will fax you a copy.” On December 10, 2002, Allstate’s adjuster advised plaintiff’s counsel that she was still awaiting the radiologist’s report and indicated, “We anticipate that this matter will be resolved in 30 days or sooner.”

On January 7,2003, the Allstate adjuster forwarded to plaintiff’s counsel a copy of the film review and stated in her forwarding letter:

“I am evaluating this case today. I am out of the office tomorrow for a pretrial conference but will call you on Thursday with a settlement offer. If you cannot resolve this case then I would suggest that you file a summons to toll the statute as I cannot give you an extension with respect to keeping this file open without the proper court filings.”

On January 9, 2003, the Allstate adjuster called plaintiff’s counsel and made an offer to settle this case for $9,000. Plaintiff’s counsel rejected this offer. That same day, a Thursday, he mailed the complaint in this action to the office of the prothonotary of Lehigh County for filing. The complaint was received by the clerk of courts, Civil Division, and filed on Tuesday, January 14, 2003.

DISCUSSION

Clearly, the complaint in this case was filed more than two years after the date of the accident. The accident occurred on January 13, 2001, and the complaint was not filed until January 14,2003. Thus, the complaint was filed after the expiration of the applicable statute of limitations and is time-barred. 42 Pa.C.S. §5524; Baumgart v. Keene Building Products Corp., 542 Pa. 194, 199, 666 A.2d 238, 240 (1995).

The plaintiff argues that the complaint should be treated as filed on the date when it was placed in the mail, i.e., January 9, 2003. However, the Superior Court rejected such an argument recently in Booher v. Olczak, 797 A.2d 342 (Pa. Super. 2002). In Booher the accident had occurred on March 6, 1998. Plaintiff’s counsel mailed a praecipe for writ of summons to the prothonotary’s office for filing on March 3,2000. A clerk at the prothonotary’s office time-stamped the filing on March 10,2000. The court held that the actual filing date was March 10, 2000, the date it was received in the prothonotary’s office. Therefore, the plaintiff’s claim was barred by the statute of limitations, which had expired on March 6, 2000, two years after the accident.

In Griffin v. Central Sprinkler Corp., 2003 Pa. Super. 160 (April 25, 2003), the Superior Court noted that “under the rules of civil procedure a document is filed when it arrives at the prothonotary’s office, regardless of the date the document is time-stamped.” Id. at 29. In Griffin, the court found that there was enough evidence in the record to create an issue of fact as to whether the prothonotary actually received the praecipe prior to the expiration of the statute of limitations. The record included (a) an affidavit from a paralegal of plaintiff’s counsel stating that she deposited the praecipe in the mail six days before it was due, and (b) the deposition of the deputy prothonotary stating that his office was “backed up” during the time period contested so that the praecipe could have been received prior to the time it was docketed.

In the instant case the plaintiff produced a mailing receipt indicating that the praecipe was mailed on Thursday, January 9, 2003, five days (three business days) before the statute of limitations expired. However, the praecipe itself was timed-stamped at 2:21 o’clock p.m. by the Lehigh County Clerk on January 14, 2003, the day after the statute of limitations had expired. Unlike the situation in Griffin, the plaintiff here does not claim that the praecipe was received by the clerk’s office prior to January 14,2003. Therefore, even assuming the accuracy of plaintiff’s averments, we have no alternative but to find that the date of filing in this case was January 14, 2003.

Plaintiff’s counsel could have filed the complaint in person or through a member of his staff, or he could have used an overnight delivery service. Instead he selected the United States regular mail as the mode of delivery. He should have understood that it might take more than three business days for the praecipe to arrive. He took the risk that the praecipe might not reach the clerk’s office in time.

The rule set forth in Booher and Griffin that the date of filing is the date a document is received by the clerk or prothonotary is an important rule. If we were instead to rely on the date of mailing, substantial uncertainty would be introduced regarding the filing date of a document. A party could always argue that he placed the document in the mail long before it was actually received, thus creating an issue of fact in matters where the timeliness of a filing is crucial. The better approach is the approach taken in Booher and Griffin that the filing date is the date of actual receipt, regardless of the date the document was mailed.

The plaintiff also argues that the defendant and his insurance carrier were not prejudiced by the delay because they were well aware of the plaintiff’s claim since shortly after the accident. However, lack of prejudice by the defendant is not a basis for disregarding the statute of limitations. This argument was explicitly rejected in Booher, where the Superior Court held that proof of prejudice is not required in order to support a motion for judgment on the pleadings on the ground that the action is time-barred.

The plaintiff also asks us to find that the statute of limitations was tolled by the actions of the Allstate adjuster in expressing an interest in settlement of the case and specifically by the adjuster’s letter of January 7,2003, requesting that he delay suit until January 9,2003, when she would be making an offer of settlement. However, the adjuster coupled her request with this explicit statement:

“If you cannot resolve this case then I would suggest that you file a summons to toll the statute as I cannot give you an extension with respect to keeping this file open without the proper court filings.” (emphasis added)

In view of this letter, plaintiff’s counsel cannot reasonably claim that he was lulled into believing that the defendant would waive the statute of limitations. Where settlement negotiations are coupled with an explicit statement that the negotiator is without authority to extend the statute of limitations, the negotiations cannot be relied on as a basis for extending the limitations period. The plaintiff has not set forth any facts that would constitute fraud or would establish an estoppel. Cf. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963) (plaintiff permitted to proceed with wrongful death action after statute of limitations had run because defendants concealed facts surrounding decedent’s death). Any reasonable person reading the adjuster’s letter of January 7, 2003, would realize that he must comply with the applicable statute of limitations.

For these reasons, the defendant’s motion for judgment on the pleadings must be granted. We have given the plaintiff the benefit of assuming that the facts alleged in his response to the motion for judgment were included in his reply to new matter. Nevertheless, even with the inclusion of these additional averments, and assuming the truth of these averments, we must conclude that this case is time-barred. As the court stated in Booher, “Once the prescribed statutory period for commencing a cause of action has expired, the complaining party is barred from bringing suit.” Booher, supra at 345; see also, Baumgart v. Keene Bldg. Prod. Corp., supra at 199, 666 A.2d at 240. In this case the plaintiff did not commence this case within the prescribed statutory period of two years. Hence this action is time-barred.

ORDER

Now, June 9, 2003, upon consideration of the defendant’s motion for judgment on the pleadings and plaintiff’s response thereto, after oral argument and for the reasons set forth in the accompanying opinion, it is ordered that the defendant’s motion is granted, and judgment is entered in favor of the defendant against the plaintiff.

      . Plaintiff’s answer and new matter in response to defendant’s motion for judgment on the pleadings, Letter dated January 7, 2003, from Kathleen Cunnane to John W. Nails, Esq., exhibit “I.”

      . In Lehigh County the duties of a prothonotary are performed by the clerk of courts.

      . See note 1, supra.


source: Caselaw Access Project

author: KISTLER, J.,

license: Public Domain

text:
    Mishock v. Erie Insurance Exchange
    C.P. of Centre County,
    no. 2001-1014.

      Kathleen V. Yurchak, for plaintiff.

      Joseph P. Green, for defendant.
    May 28, 2003
   KISTLER, J.,

On March 7, 2003, a civil non-jury trial was held before this court in the matter of My linda Mishock versus Erie Insurance Exchange. At close of testimony both parties requested the opportunity to submit proposed findings of fact and conclusions of the law to the court. As briefs have been received by both parties, the court is prepared to render its decision.

PROCEDURAL BACKGROUND

(1) On April 27,2001, plaintiff Mylinda Mishock filed a complaint, which was subsequently amended on June 11, 2001, against defendant Erie Insurance Exchange.

(2) In the complaint, Mishock asserts that Erie breached its contract with Mishock and requests that this court enter a decree directing Erie to pay all of Mishock’s outstanding medical expenses, directing Erie to continue to pay Mishock’s future medical expenses, and to award attorney’s fees to Mishock.

(3) On July 11, 2000, Erie filed an answer with new matter and a counterclaim in which Erie requests that this court enter judgment against Mishock in the amount of U.S. $890 incurred by Erie pursuant to the peer review process.

(4) A one day non-jury trial was held on March 7,2003.

FINDINGS OF FACT

(1) On January 9, 1997, Mishock was involved in a motor vehicle accident in State College, Pennsylvania.

(2) At the time of the accident Mishock was insured by Erie under the “Pioneer Family Auto Policy” identified as policy number Q01 2703190H.

(3) Mishock sought medical treatment the day after the accident from a chiropractor, Dr. John Corneal D.C., because she was experiencing “headaches, neck pain, lower back pain, stiffness in her legs, and pain in her arm.”

(4) Mishock treated with Dr. Corneal for several months but was then referred to Eric Rosin D.O., by Dr. Corneal “because improvement was minimal relative to the chiropractic treatments.”

(5) Dr. Rosin recommended that Mishock receive continued chiropractic care, physical therapy, and trigger point injections.

(6) On April 4,1998, Henrik Mike-Mayer M.D. stated that Mishock was “overly concerned with litigation medical legal issues versus her pain.”

(7) Dr. Mike-Mayer recommended cervical steroid epidural injections which Mishock refused.

(8) On October 14, 1999, Jacquelyn A. Bonomo, Mishock’s massage therapist, indicated that when she spoke to Mishock about the continued need for a weekly massage Mishock became defensive.

(9) Bonomo indicated that Mishock became “defensive after I suggested muscle tension in her back had changed and was showing a definite improvement.”

(10) In or around October/November 2000, Erie instituted peer review proceedings pursuant to the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).

(11) Christopher J. Boylan D.C. and Jane L. McBride D.C. performed the peer review services relative to the chiropractic treatments being received by Mishock.

(12) The results of the peer review conducted by Drs. Boylan and McBride were that the chiropractic services being received by Mishock were not reasonable and necessary.

(13) Milton Klein D.O. and Robert T. O’Leary D.O. performed the peer review services relative to the massage therapy treatment being received by Mishock.

(14) The results of the peer review conducted by Drs. Klein and O’Leary were that the massage therapy treatments being received by Mishock were not reasonable and necessary.

(15) Upon receiving the initial findings of the peer reviewers, Mishock requested reconsideration pursuant to the provisions of the MVFRL.

(16) The court finds that Mishock has established that her initial complaints of pain were causally related to the underlying motor vehicle accident of January 1997.

(17) Drs. Corneal and Rosin testified that Mishock’s symptomology was causally related to the motor vehicle accident of January 1997.

(18) Drs. Boylan and McBride, the peer review examiners, stated that they made no determinations as to the underlying causation of any injuries and opined only about the reasonableness and necessity of continued care.

(19) The court finds credible the testimony of Dr. Boylan who stated, referring to chiropractic treatments, that “it was [his] opinion that treatment beyond June 13, 2000, was not considered reasonable and necessary.”

(20) The court finds credible Dr. Boylan’s determination that there “was a plateau or decrease in favorable responses from an objective standpoint,” making care no longer clinically necessary.

(21) The court finds credible the testimony of Dr. McBride that Mishock has achieved “maximum medical improvement,” however, the court determines that the date of the “plateau” or “maximum medical improvement” is more properly June 13, 2000, as stated by Dr. Boylan.

DISCUSSION

Erie argues that it did not breach its contract in terminating insurance benefits provided to Mishock because the injuries for which Mishock sought treatment were not “causally related to the underlying motor vehicle accident” and that her treatments were not “reasonable and necessary under the circumstances.” Erie asserts these contentions pursuant to the clause in the policy which states that “We [Erie] will pay reasonable and necessary charges for . . . medical expenses . . . .” The court will address the issues of “causal connection” and “reasonableness and necessity” of the expenses separately.

First, the court determines that Mishock has proven that the initial symptoms that she experienced were causally related to the January 1997 accident. Mishock presented the testimony of Drs. Rosin and Corneal who stated that it was their belief that the symptoms complained of were a result of the accident that occurred in January 1997. (Rosin dep., p. 9/Comeal dep., pp. 15,16.) Erie failed to present any medical testimony regarding the causal relation of Mishock’s symptoms to the accident in January 1997. Drs. Boylan and McBride rendered no opinions relative to the causation of Mishock’s pain. (Boylan dep., p. 21/McBride dep., p. 21.)

Erie continued to pay Mishock’s medical expenses as if they directly resulted from the January 1997 accident until it requested a peer review in October or November 2000. Erie then failed to present any medical testimony to rebut or contradict Mishock’s and her doctors’ testimony that the symptoms she was experiencing directly resulted from the January 1997 accident.

Next, the court determines that Mishock’s continued need for chiropractic treatments and massage therapy treatments were not reasonable and necessary after the date of June 13, 2000. In reaching this conclusion the court relies on the credible testimony of the doctors presented by Erie. Dr. Boylan stated that based upon the documentation he reviewed “there was little objective evidence to further substantiate clinical intervention.” (Boylan dep., p. 15.) Dr. Boylan further stated that there was a “plateau or decrease of favorable response from an objective standpoint,” making care no longer clinically necessary. (Boylan dep., p. 15.) Similarly, Dr. McBride stated that Mishock’s “progress plateaued,” however Dr. McBride believed this occurred only nine months after the accident. (McBride dep., p. 13.) Dr. McBride opined that Mishock had reached maximum medical improvement. (McBride dep., p. 14.)

The court must also point out that it also relied on statements and reports from Mishock’s own doctors and therapists in making its determination that treatments were no longer reasonable and necessary. As far back as a few months after the accident in 1997, Dr. Corneal referred Mishock to another doctor because “she wasn’t showing the type of improvement we would expect,” in reference to the chiropractic treatments. (Corneal dep., p. 18.) Dr. Corneal told Dr. McBride that Mishock “had not improved any further under his care” and that is why he sent Mishock to Dr. Rosin. (McBride dep., p. 13.) Furthermore, on October 14,1999, Mishock’s own massage therapist told Mishock the “muscle tension in her back had changed and she was showing definite improvement.” (Def. ex. “13.”) Mishock responded defensively to this statement and once again talked of litigation. These statements by Dr. Corneal and Jacquelyn Bonomo corroborate the peer reviewers’ determinations that Mi-shock’s progression had “plateaued” and that she had reached “maximum medical improvement.”

For these reasons the court determines that Erie did not breach its contract with Mishock by terminating her insurance benefits and proceeded in accordance with regulations as far as the peer review process was concerned. The court is unaware of the date of last payment but determines that Erie is responsible for paying Mishock’s treatment bills up to the date of June 13,2000, the date Dr. Boylan determined treatment was no longer necessary. The court further determines that Mishock is liable to Erie for the costs of the reconsideration of the peer review pursuant to the MVFRL.

ORDER

And now, May 28, 2003, after a civil non-jury trial, the court finds in favor of defendant Erie Insurance Exchange. Defendant Erie Insurance Exchange did not breach its contract with plaintiff Mylinda Mishock and is only responsible for treatment bills up to the date of June 13, 2000.

It is further ordered that the court finds in favor of defendant Erie Insurance Exchange on its counterclaim against plaintiff Mylinda Mishock. Plaintiff Mylinda Mishock shall pay defendant Erie Insurance Exchange the sum of U.S. $890, representing the costs associated with the reconsideration of the peer review process.


author: TETI, Member,

text:
    Office of Disciplinary Counsel v. Wiener

      Disciplinary Board Docket no. 2 D.B. 99.
    December 16, 2002
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

TETI, Member,

Pursuant to Rule 208(d) (2) (iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

By order of January 12, 1999, the Supreme Court of Pennsylvania placed respondent, Eric Jeffrey Wiener, on temporary suspension from the practice of law as a result of his criminal conviction of two counts of wire fraud, in violation of 18 U.S.C. §1343.

On March 21,2000, a petition for discipline was filed against respondent by petitioner, Office of Disciplinary Counsel. Respondent filed an answer to petition on May 12, 2000. Assignment of the case to a Hearing Committee was deferred until respondent was released from prison.

A disciplinary hearing was held on September 25,2001 before Hearing Committee 3.04 consisting of Acting Chair Lenora M. Smith, Esquire, Member Donald H. Brobst, Esquire and Alternate Member Patrick E. Dougherty, Esquire. Respondent was represented by James C. Schwartzman, Esquire.

Following briefing by the parties, the Hearing Committee filed a report on May 10,2002 and recommended that respondent be suspended from the practice of law for four years. No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of June 12, 2002.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office was located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania 15219, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom in 1946 and was admitted to practice law in Pennsylvania in 1973. He resides at 4505 Lakeside Drive, Harrisburg, PA 17110. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) By order of the Supreme Court of Pennsylvania dated January 12, 1999, respondent was placed on temporary suspension as a result of his criminal conviction in the United States District Court for the Middle District of Pennsylvania of two counts of wire fraud.

(4) The facts underlying the conviction are as follows:

(a) Respondent was a one percent owner and authorized sales agent of Carlisle Auto Plaza Inc. (CAP), a used car dealership located in Carlisle, PA.

(b) On or about July 14,1994, respondent purchased a 1994 Jeep Cherokee from Hugh R. Jones of Jones Motor Cars Ltd., for $26,500. Although the sale was transacted under CAP’S name, the Jeep was used by respondent and was purchased with monies he controlled.

(c) Prior to September 16, 1994, respondent learned that several Jeeps Jones had sold had been seized as stolen vehicles by Pennsylvania law enforcement authorities.

(d) By letter dated September 16, 1994, respondent advised Jones and CAP’S insurance carriers that CAP had purchased a Jeep from Jones and that some of the Jeeps sold by Jones were under suspicion of being stolen. Respondent inquired as to whether Jones’ policy provided coverage and directed the carriers to “please present a claim on behalf of Carlisle Auto Plaza Inc.”

(e) Respondent was advised that there was a question as to whether there was coverage under Jones’ policy.

(f) Thereafter respondent placed advertisements in the Philadelphia Inquirer and the New York Times listing the Jeep for sale for $26,900.

(g) Upon seeing the advertisement, on September 22, 1994, Joseph Grow, a used car dealer from West Chester, PA, traveled to Harrisburg to inspect the Jeep at respondent’s residence. Respondent told Grow he was selling the Jeep because he wanted a larger vehicle for towing. Grow made an offer for less than $26,900, and respondent refused it.

(h) Two days later, respondent contacted Grow in Florida and said he reconsidered.

(i) Grow returned to Pennsylvania and met with respondent in Harrisburg. At that time, Grow discovered the Jeep was a Canadian vehicle and refused to go through with the transaction.

(j) After seeing the advertisements in the New York Times and Philadelphia Inquirer, Robert Gullo of New Jersey had several telephone conversations with respondent regarding the Jeep, on September 24 and 25,1994, while Gullo was in New York.

(k) After the sale to Grow fell through, respondent agreed to sell the Jeep to Gullo for $26,500. Respondent conditioned the sale on Gullo’s traveling to Harrisburg on September 27,1994 and taking possession of the vehicle.

(l) On September 27 1994, respondent applied for and received a Pennsylvania title for the Jeep in CAP’S name.

(m) On September 27, 1994, Gullo arrived at respondent’s residence to inspect the Jeep. Respondent told Gullo he was selling the Jeep because he wanted a larger vehicle for towing.

(n) When Gullo expressed his concern about the Jeep being titled in CAP’S name, respondent told Gullo he was a lawyer and an authorized representative of CAP. Not convinced, respondent took Gullo to his law firm and showed him documents authorizing respondent to act on CAP’s behalf. Gullo agreed to buy the Jeep.

(o) On September 28, 1994, respondent deposited Gullo’s cashier check into an account he controlled at Mellon Bank in Harrisburg.

(p) On September 30,1994, respondent advised CAP’s insurance carrier that the matter involving the Jeep had been resolved.

(q) On November 18,1994, law enforcement authorities seized the Jeep from Gullo in New Jersey.

(r) By correspondence of November 22, 1994, Gullo’s attorney demanded a refund of the purchase price.

(s) Respondent asked the buyer to permit him to pursue a claim against the insurance companies.

(t) Respondent knew that it appeared those companies were declining coverage.

(u) Despite Gullo’s repeated demands, respondent did not refund the $26,500 until after he was interviewed by the FBI about the Jeep in July of 1995.

(5) Respondent was charged in a three-count indictment of two counts of wire fraud and one count of sale of a stolen motor vehicle. He entered a plea of not guilty to all three counts on December 12, 1995. On April 29, 1997, a jury entered verdicts of guilty on the wire fraud counts and deadlocked on the third count.

(6) On October 7, 1998, respondent was sentenced to 15 months imprisonment, supervised release for one year, plus fines.

(7) The court increased the offense level by two for obstruction of justice, pursuant to U.S.S.G. §3C1.1, based upon certain testimony of respondent.

(8) The section 3C1.1 determination was based on the trial judge’s finding, by clear and convincing evidence, that respondent gave false testimony on a material matter and that he did so with willful intent to provide false testimony.

(9) Respondent’s false testimony was based on the reasons he articulated for selling the Jeep. Those reasons were that the prices were declining on similar Jeeps at the Manheim Auto Auction and that he wanted to avoid a loss, and that he wanted a larger vehicle for towing a trailer.

(10) The court determined that the true reasons for respondent selling the Jeep in the manner he did was to avoid a loss because it was stolen and because he had determined that there was no insurance coverage for such a loss.

(11) Respondent acknowledged in these proceedings that the primary reasons he wanted to sell the Jeep were because he was fearful it was stolen and he did not want to lose the $26,500 he had paid for it.

(12) Respondent admits that his failure to provide more timely restitution was caused by greed.

(13) Respondent was in private practice for approximately 25 years. Respondent has no history of discipline.

(14) Respondent expressed remorse.

m. CONCLUSIONS OF LAW

The board makes the following conclusions of law:

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) Pa.R.D.E. 203(b)(1) — Respondent’s conviction for wire fraud constitutes a conviction of a serious crime and is an independent basis for discipline;

(2) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(3) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and,

(4) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the Disciplinary Board upon a petition for discipline charging respondent with violation of the Pennsylvania Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement based on his conviction of two counts of wire fraud.

When a disciplinary proceeding is commenced against an attorney based upon a criminal conviction, the board’s sole responsibility is to determine the appropriate measure of discipline relative to the seriousness of the crime. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982). All aggravating and mitigating circumstances must be taken into consideration in the board’s final analysis of discipline. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983).

Respondent’s conviction involved illegal conduct engaged in for personal gain, followed by a string of untruths made in an attempt to avoid financial responsibility, culminating in false testimony at his criminal trial. These actions denote serious character deficiencies. Respondent bought a Jeep for $26,500 and thereafter learned that similar Jeeps bought from the same individual were stolen. He contacted insurance companies and was advised that if his vehicle was stolen there was no coverage. Respondent decided to advertise the vehicle in out-of-town newspapers to avoid any possible local embarrassment. In discussions with potential buyers, he did not reveal his primary concern that the Jeep was stolen. After the Jeep was seized from the New Jersey buyer, demand was made of respondent for the return of the $26,500 the buyer paid him. Respondent told the buyer that he would try to get some recovery from the insurance companies, although respondent knew that those companies would decline coverage based on his earlier conversations with them. Respondent refused an offer from the buyer to settle for $15,000. Only after respondent became a target of an FBI investigation did he make full restitution to the buyer. Respondent compounded his troubles by testifying falsely at his criminal trial as to his reasons for selling the Jeep. This false testimony is a significant aggravating factor as to the appropriate degree of discipline.

Respondent’s misconduct did not involve any client or his practice of law; however, that does not negate the need for discipline nor does it render the acts less serious. Office of Disciplinary Counsel v. Ewing, 496 Pa. 35, 436 A.2d 139 (1981).

There are numerous attorney discipline cases involving fraud, oftentimes in combination with some other crime, such as conspiracy. In the matter of Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999), Mr. Valentino was convicted of mail fraud, which was found to have been considerably aggravated by his subornation of perjury. He induced his mother to testify falsely before a grand jury. He was never charged with subornation of perjury but that misconduct was clearly considered as an aggravating factor in determining his discipline. The Supreme Court imposed a five-year suspension.

An attorney was convicted of two counts of mail fraud and two counts of aiding and abetting after he submitted inflated medical bills to an insurance company. He was suspended for three years. The board considered that the incident was isolated and the attorney had no prior history of discipline and showed remorse. In re Anonymous No. 139 D.B. 95, 151 Disciplinary Docket no. 3 (Pa. June 13, 1997).

Respondent has no record of discipline, he has complied with all of the Rules of Disciplinary Enforcement pertaining to suspended attorneys, and he has cooperated with petitioner in the consideration of this matter. At the disciplinary hearing, respondent acknowledged that his trial testimony was not candid, and he did set forth the true reasons for selling the Jeep. Respondent has shown remorse for his actions. Balancing all of these factors, the board is persuaded that a suspension of four years retroactive to respondent’s temporary suspension is appropriate.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Eric Jeffery Wiener, be suspended from the practice of law for a period of four years, retroactive to January 12, 1999.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Peck dissented and would recommend a five-year suspension.

Board Members Schultz and McLaughlin did not participate in the June 12, 2002 adjudication.

ORDER

And now, February 28, 2003, upon consideration of the report and recommendations of the Disciplinary Board dated December 16, 2002, it is hereby ordered that Eric Jeffrey Wiener be and he is suspended from the bar of this Commonwealth for a period of five years retroactive to January 12, 1999, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Mr. Justice Nigro dissents and would suspend respondent for a period of four years.


author: WETTICK JR., J.,

text:
    Helfrick v. UPMC Shadyside Hospital

      C.P. of Allegheny County,
    no. GD03-010082.

      Richard T. Haft, Edward Wehrenberg and Patrick J. Loughren, for plaintiff.

      Eugene A. Giotto, for defendants UPMC Shadyside Hospital, UPMC Rehabilitation Hospital, Heartland Health Care Center, Health Care and Retirement Corp., Ismail-Breigi and Chu.

      Jeanne Welch Sopher, for defendants Skura and Mieckowski.

      Giles J. Gaea and Alan S. Baum, for defendants Weber, Casey and Levy.

      Lynn E. Bell, for defendant Hall.

      Robert J. Pfajf and Suzanne Oppman, for defendant Levenson.
    September 29, 2003
   WETTICK JR., J.,

The subject of this opinion and order of court is plaintiff’s petition to strike a judgment of non pros entered for failure of plaintiff to file a certificate of merit within 60 days of the filing of the complaint. The issue raised through this petition is whether a judgment of non pros may be obtained if the plaintiff has filed a certificate of merit beyond the 60-day period set forth in the rules for the filing of a certificate of merit but before the defendant’s filing of a praecipe for the entry of a judgment of non pros.

In a complaint filed on May 29, 2003, plaintiff asserted professional liability actions against numerous defendants, including Dr. David J. Levenson. Under Pa.R.C.P. 1042.3, the attorney for plaintiff was required to file within 60 days after the filing of the complaint either a certificate of merit or a motion to extend the time for the filing of the certificate. Plaintiff failed to do so. At 8:30 a.m. on August 1, 2003 (the 64th day after the complaint was filed), counsel for plaintiff filed a certificate of merit as to Dr. Levenson. At 2:38 p.m. on August 1, 2003, counsel for Dr. Levenson filed a praecipe for the entry of judgment of non pros pursuant to Pa.R.C.P. 1042.6 which reads as follows:

“Rule 1042.6. Entry of judgment of non pros for failure to file certification
“(a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate.
“Note: The prothonotary may not enter judgment if the certificate of merit has been filed prior to the filing of the praecipe.
“Rule 237.1 does not apply to a judgment of non pros entered under this rule.
“(b) The praecipe for the entry of a judgment of non pros shall be substantially in the following form: ....”

In response to the praecipe which defendant filed, the prothonotary entered a judgment of non pros. Plaintiff has filed a petition to strike the judgment on the ground that the prothonotary lacked authority to enter a judgment of non pros after the filing of a certificate of merit. I am granting the petition.

The text of Rule 1042.6 does not address the issue of what happens when a plaintiff files a certificate of merit beyond the 60-day period but before the entry of a judgment of non pros. However, the note to Rule 1042.6 provides the answer: “The prothonotary may not enter judgment if the certificate of merit has been filed prior to the filing of the praecipe.”

Defendant contends that I should disregard the note because it is inconsistent with Rule 1042.6.1 disagree. As I will discuss, there is an issue as to whether the prothonotary is authorized to enter a judgment of non pros if a plaintiff has complied with the requirements of a rule, albeit untimely, prior to the defendant’s filing a praecipe for the entry of a judgment of non pros. Consequently, the note is answering the question that the rule does not address. The answer that the note furnishes is consistent with case law governing analogous situations.

A note should be used in construing a rule of civil procedure unless it is not possible to give effect to both the note and the rule. See Pa.R.C.R 129(e) (“A note to a rule or an explanatory comment is not a part of the rule but may be used in construing the rule.”) and the explanatory comment — 1990 to Rule 129(e) (citing with approval the statement of the Pennsylvania Supreme Court in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981), that explanatory notes “indicate the spirit and motivation behind the drafting of the rule, and they serve as guidelines for understanding the purpose for which the rule was drafted”).

It is common practice for appellate courts, when construing a rule of civil procedure, to give considerable weight to the notes and explanatory comments that accompany the rule. See Katz v. St. Mary Hospital, 816 A.2d 1125, 1127-28 (Pa. Super. 2003); Rieser v. Glukowsky, 435 Pa. Super. 530, 539, 646 A.2d 1221, 1225 (1994); McGonigle v. Currence, 387 Pa. Super. 511, 516, 564 A.2d 508, 510-11 (1989); Macioce v. Glinatsis, 361 Pa. Super. 222, 226, 522 A.2d 94, 96 (1987).

There is no inconsistency between Rule 1042.6 and the note providing that the prothonotary may not enter judgment if the certificate has been filed prior to the filing of the praecipe. Rules of civil procedure providing for the prothonotary to enter a judgment of non pros, upon praecipe of the defendant, for failure of a plaintiff to comply with a rule of court, are not construed as providing for the automatic entry of a judgment of non pros. Since such rules are not self-enforcing, they are not construed as providing for the striking of a plaintiff’s filing which occurs prior to the defendant’s filing of a praecipe for the entry of a judgment of non pros.

In Friedman v. Lubecki, 362 Pa. Super. 499, 524 A.2d 987 (1987), the plaintiffs filed a timely notice of appeal from a district justice judgment. Pa.R.C.P.D J. 1004A provides that if the appellant was the claimant in the action before the district justice, he or she shall file a complaint within 20 days after filing the notice of appeal. Pa.R.C.P.DJ. 1006 provides that “Upon failure of the appellant to comply with Rule 1004A,... the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record.”

In Friedman, the plaintiffs filed their complaint on the 24th day following the filing of the notice of appeal. Four days later, the defendant filed a praecipe to strike the appeal for failure of the plaintiffs to file their complaint within the 20-day period set forth in Rule 1004A. The trial court denied the plaintiffs’ petition to reinstate the appeal. The Superior Court reversed.

The Superior Court ruled that the trial court had misconstrued the rule; the Superior Court read the rule as providing that it was too late for the defendant to seek relief under Rule 1006 once the plaintiffs had filed their complaint:

“We repeat, Rule 1006 is not self-enforcing. Its effect is not automatically triggered even if, after 20 days have passed, an appellant has not filed his complaint. In that event, it is incumbent upon an appellee to proceed under Rule 1006 to strike the appeal from the record. Rule 1006 only provides for the striking of an appeal filed pursuant to Pa.R.C.P.D J. 1002. We discern no language in Rule 1006 which encompasses within its terms the striking of an untimely filed complaint, as well, nor will we read any such requirement into a rule which clearly on its face provides for a method by which an appeal is to be stricken from the record for failure to comply with Pa.R.C.P.DJ. 1004A.” 362 Pa. Super. at 504, 524 A.2d at 989.

In making its decision, the Superior Court looked to Alexander v. Mastercraft Construction Co. Inc., 455 Pa. 579, 317 A.2d 278 (1974), in which, according to the Superior Court, “[0]ur Supreme Court has construed an analogous situation interpreting the rules of civil procedure relating to joinder of parties.” 362 Pa. Super. at 502, 524 A.2d at 989. In Alexander, the rules of civil procedure required the complaint of a defendant against an additional defendant to be filed within 20 days after the defendant filed its praecipe for writ to join additional defendant. The Supreme Court refused to hold that this rule called for the automatic dismissal of the original defendants’ claims against the additional defendant where the additional defendant had not invoked the procedures available under Pa.R.C.P. 1037(a) prior to the filing of the complaint.

Rule 1042.6(a) tracks the language of Rule 1037(a) which governs the filing of a complaint in actions not commenced by complaint. The second sentence of Rule 1037(a) provides that “[i]f a complaint is not filed within 20 days after service of the rule, the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros.” Case law construes this rule as authorizing the prothonotary to enter a judgment of non pros only if the praecipe is filed before a complaint has been filed. See 7 Standard Pennsylvania Practice 2d §39:93 (1996) (and cases cited therein).

In Lansdowne by Lansdowne v. G.C. Murphy, supra, 358 Pa. Super. 448, 517 A.2d 1318, the plaintiff commenced a lawsuit by filing a praecipe for a writ of summons in October 1981. In June 1983, the defendant obtained a rule to file a complaint within 20 days. On September 16, 1983, at 9:29 a.m., the defendant filed with the prothonotary a praecipe for entry of judgment of non pros. At 2:30 p.m. on the same day, counsel for the plaintiff filed a complaint with the prothonotary. The prothonotary did not enter judgment in the docket until September 19, 1983. Subsequently, the trial court struck the complaint for failure to comply with Rule 1037(a).

The issue the Superior Court addressed in Lansdowne was whether it was proper for the trial court to strike the complaint in the situation in which the complaint was filed before the entry of the judgment of non pros. The Superior Court ruled that the complaint was properly stricken because the praecipe was filed before the plaintiff filed his complaint. Id., 358 Pa. Super. at 458, 517 A.2d at 1323. There would have been no need for the Superior Court to address this issue if Rule 1037(a) required the prothonotary to enter a judgment of non pros whenever a complaint is not filed within the 20-day period.

For these reasons, I enter the following order of court:

ORDER

On September 29, 2003, it is hereby ordered that plaintiff’s petition to strike judgment of non pros as to defendant David J. Levenson M.D., is granted.

      . Case law holds that in determining first-in-time, it is the times and dates of the filings as opposed to the times and dates of the entry of the filings on the record. Lansdowne by Lansdowne v. G.C. Murphy, 358 Pa. Super. 448, 517 A.2d 1318 (1986).


author: BERNSTEIN, J.,

text:
    Frunzi v. Muller

      Roberta D. Pichini, for plaintiffs.

      Donald N. Camhi, Paul A. Bechtel, Matthew C. Wilson and Amalia C. Romanowicz, for defendants.
    September 25, 2003
   BERNSTEIN, J.,

Defendants, Jeanes Hospital and Temple University Health Systems Inc., have moved this court to compel answers to supplemental interrogatories concerning the certificate of merit filed by plaintiff. These interrogatories do not ask whether the author of the statement giving rise to the certificate of merit will be called to testify at trial. Rather, these interrogatories seek to ascertain the credentials of the author. The interrogatories ask for information about the author’s license to practice medicine, his or her medical practice, his or her specialty, subspecialty, board certifications and other curriculum vitae information.

Rule 1042 of the Rules of Civil Procedure promulgated by the Supreme Court of January 27, 2003, governs professional liability actions. These rules, at Rule 1042.3 require the filing of a certificate of merit with or after filing a complaint. These rules also preclude discovery of the credentials of the author of the report on which the certificate of merit is based until the final conclusion of the case. Rule 1042.7, entitled “Sanctions,” states that 30 days after a defendant is dismissed through “voluntary dismissal, verdict or order of the court,” the defendant may request the written statement upon which the certificate of merit was based. The rule further provides that the statement may not be required by any dismissed party until 30 days after resolution of all claims in the matter. Resolution of all claims is the conclusion of trial and all appeals. Neither the rule nor the commentary note provide any support for pretrial discovery concerning the identity or curriculum vitae of the author.

The defense claims that the note appended to Rule 1042.7 permits discovery of a limited nature while the case is pending. This note states that Rule 4003.5 of the Rules of Civil Procedure, which governs the discovery of expert testimony, is applicable to the written statement of licensed professionals: “until a defendant has been dismissed from the case.”

Pennsylvania Rule of Civil Procedure 4003.5 specifically limits discovery of facts known and opinions held by an expert retained by a party in litigation. It specifically limits discovery at 4003.5(a)(1)(a) to “each person whom the other party expects to call as an expert witness at trial.” This limitation upon discovery is referred to in the commentary to Rule 1042.7. The note to Rule 1042.7 does not in any way expand the clear language of the rule itself prohibiting any discovery concerning the certificate of merit. Rather, the note clarifies the fact that Rule 1042.7 does not in any way expand otherwise permissible expert discovery.

Obviously, if plaintiff intends to call the individual who authored the statement as an expert at trial, plaintiff would have to respond with information about that expert pursuant to properly filed interrogatories under Rule 4003.5. Nothing precludes proper discovery if the licensed professional upon whose report the certificate of merit was based will be called as a witness at trial.

Clearly, however, the rules preclude any interrogatories seeking the identity or the credentials of the licensed professional upon whose opinion the certificate of merit was based until the conclusion of the case. The defendant’s motion to compel is denied.