author: McGINLEY, J.,

text:
    Verba v. Eltringham

      C.P. of Lehigh County,
    no. 2003-C-0005.

      Michael A. Snover, for plaintiffs.

      Richard D. Adamson, for defendant Eltringham.

      Richard J. Margolis and John A. Livingood, for defendant Kravco Maintenance Co.

      Charles J. Fonzone, for additional defendant Verba.
    June 9, 2005
   McGINLEY, J.,

Before this court are the post-trial motions of defendants, Kravco Maintenance Company and Veronica Eltringham. Eltringham seeks either a new trial or remittitur of the verdict. Kravco seeks a new trial, or remittitur, or in the alternative, judgment n.o.v. against additional defendant Ronald Verba, with a new trial for an assessment of a percentage of liability. Kravco also seeks to have plaintiffs’ brief in opposition to the post-trial motions dismissed for being filed one day after the date set forth in the scheduling order dated March 3, 2005. Also before this court is plaintiffs’ petition for delay damages.

BACKGROUND

On February 17, 2001, the plaintiffs, Carolyn and Ronald Verba, drove together to the Lehigh Valley Mall. They parked their car in one of the outer parking lots and proceeded to walk toward the mall. In order to reach the mall from the outer parking lot, the Verbas had to cross what the parties referred to as the “ring road” within the mall’s parking lot. The ring road consists of a four-lane roadway, with two lanes for each direction of travel, divided by a center double yellow line. There are no crosswalks on the ring road.

Plaintiffs proceeded across the first two lanes of traffic, holding hands. In the third lane of traffic the plaintiffs proceeded in front of a bus, which was stopped. Emerging from the other side, they began across the fourth lane of traffic. At some point the plaintiffs were no longer holding hands. Plaintiff/additional defendant Ronald Verba made it across the road. Plaintiff, Carolyn Verba did not. Before reaching the other side of the road, Mrs. Verba was struck by a vehicle driven by defendant, Veronica Eltringham, and knocked to the ground.

Eltringham’s vehicle struck her leg and knocked her onto the hood of the vehicle (N.T. at p. 338), where her shoulder hit the hood of the vehicle. She was then thrown to the ground when the car came to a sudden stop, and landed in the roadway on her lower back. (N.T. at pp. 33 8-39.) Plaintiff suffered a lower back injury and a right shoulder injury.

A jury trial commenced on February 1,2005, and ended with a jury verdict on February 4, 2005. The jury found the plaintiff, Carolyn Verba, 40 percent negligent; the defendant, Veronica Eltringham, 35 percent negligent; the defendant, Kravco, 25 percent negligent; and plaintiff/additional defendant Ronald Verba 0 percent negligent. The jury returned a verdict of $500,000 in favor of Carolyn Verba and $10,000 in favor of Ronald Verba on his loss of consortium claim.

Kravco filed a post-trial motion on February 11,2005, seeking a new trial or remittitur and a judgment n.o.v. against Ronald Verba. Defendant Eltringham filed a post-trial motion on February 14,2005, seeking a new trial or remittitur. On April 26, 2005, plaintiffs filed a brief in opposition to defendants’ post-trial motions.

On May 6, 2005, defendant Kravco filed a motion to strike plaintiffs’ brief in opposition as being filed one day after the deadline set forth in the scheduling order dated March 3,2005. However, there is a preference for deciding motions on the merits and so we deny defendant’s motion to strike plaintiffs’ brief.

DISCUSSION

New Trial

Kravco seeks a new trial in this matter, arguing that the trial court erred by precluding the introduction of evidence regarding who had the right-of-way at the time of the accident, by refusing to charge the jury on the right-of-way issue and by instructing the jury only with the standard charge on the duty of landowners.

Eltringham argues that the verdict is not supported by the evidence and is so excessive as to require a new trial.

It is well settled that the granting of a new trial is a matter within the discretion of the trial court. Monschein v. Phifer, 771 A.2d 18, 20 (Pa. Super. 2001); Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994).

Kravco first argues that the trial court should not have precluded the introduction of evidence regarding right-of-way. At the time of trial, plaintiff made a motion in limine to limit the testimony of James Schuster, PE, with regard to the applicability of the Motor Vehicle Code and specifically 75 Pa.C.S. §3543.

75 Pa.C.S.§3543(a) states that “[ejvery pedestrian crossing a roadway at any point other than within a crosswalk at an intersection or any marked crosswalk shall yield the right-of-way to all vehicles upon the roadway.”

75 Pa.C.S. §102 defines the term “roadway” as “that portion of a highway improved, designed, or ordinarily used for vehicular travel...” and “highway” as the “width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.”

It has been held that parking lot traffic lanes do not constitute “highways.” Marsico v. DiBileo, 796 A.2d 997, 1001 (Pa. Super. 2002).

The plaintiffs’ motion in limine was granted because section 3543 uses the term “roadway” which is defined by title 75 as a portion of a “highway,” from which parking lot traffic lanes are specifically excluded pursuant to Marsico. Id.

For these reasons, testimony relating to the Motor Vehicle Code and right-of-way as set forth in section 3543 was properly excluded at trial.

Kravco further argues, however, that, even if the initial ruling with regard to Marsico was correct, that the trial court erred in extending that preclusion to any questioning regarding right-of-way even if not specifically based upon section 3543. Kravco contends that the trial court erred in refusing to allow cross-examination of Ronald Verba regarding the plaintiffs’ failure to cross at an intersection and who had the right-of-way. (N.T. at pp. 206-207.) Ultimately, Kravco argues, this left the jury with no standard of care to apply to the plaintiffs in this case and prejudiced Kravco.

The court did not preclude all such evidence. During cross-examination of Ronald Verba, the following exchange took place:

“Mr. Livingood: You knew that the cars didn’t have to stop for you?
“Mr. Snover: Objection to the form.
“The Court: The objection is overruled. You may answer the question.
“Mr. Livingood: You knew those cars didn’t have to stop for you, didn’t you?
“Mr. Verba: Not particularly.
“Mr. Livingood: Let me ask it this way, you, a pedestrian crossing in the middle of a block, as opposed to a car driving down that last lane, who had the right of way?
“Mr. Verba: We did.
“Mr. Snover: Objection, your honor.
“The Court: The objection is sustained. The jury is instructed to disregard the witness’ answer.” (N.T. at pp. 206-207.)

The question asked the plaintiff for a conclusion which conclusion was within the province of the jury to make under the facts and circumstances of the case.

The objection to this question was properly sustained and is not a basis for the grant of a new trial in this matter.

Kravco next argues that a new trial is warranted because the trial court erred in refusing to charge the jury on the right-of-way issue and by instructing the jury only with the standard duty of care owed by landowners.

In reviewing the parties’ requests to charge, the trial court declined to include a charge regarding the duty of a pedestrian when crossing the street based upon 75 Pa.C.S. §3543. (N.T. atpp. 449-50.) In so doing, the court recognized that this statute was inapplicable and stated “I’m not going to tell them every duty a pedestrian has when crossing the street. There’s a duty of due care. How the jury wants to define it is up to them.” (N.T. at p. 450.)

A trial judge has wide latitude in his or her choice of language when charging a jury, provided that the court fully and adequately conveys the applicable law. Wilson v. Anderson, 420 Pa. Super. 169, 173, 616 A.2d 34, 36 (1992). A new trial will not be granted based upon an erroneous jury instruction unless the jury charge in its entirety was unclear, inadequate, or tended to mislead or confuse the jury. Marsico, 796 A.2d at 1000; Fragale v. Brigham, 741 A.2d 788, 790 (Pa. Super. 1999). The defendant did not provide any other law to the court on the “right-of-way” issue other than its misplaced reliance on 75 Pa.C.S. §3543.

Defendant Eltringham also moves for a new trial, contending that the verdict is excessive and unsupported by the evidence.

Atrial court may only grant a new trial when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice. Criswell v. King, 575 Pa. 34, 834 A.2d 505 (2003); Divilly v. Port Authority of Allegheny County, 810 A.2d 755 (Pa. Commw. 2002); Orndoff v. Wilson, 760 A.2d 1 (Pa. Super. 2000). The appellate courts are not free to substitute its judgment for that of the trial judge or jury when reviewing a jury verdict for excessiveness. Carrozza v. Greenbaum, 866 A.2d 369 (Pa. Super. 2004). Rather it is within the discretion of the trial court whether to grant or deny a new trial based on the excessiveness of a jury’s verdict. Id.

In determining whether a jury’s award of damages is supported by the evidence, the court must consider: (1) the severity of the injury; (2) whether the injury is demonstrated by objective physical evidence or subjective evidence; (3) whether the injury is permanent; (4) the plaintiff’s ability to continue employment; (5) the disparity between the amount of out-of-pocket expenses and the amount of the verdict; and (6) the damages plaintiff requested in the complaint. Id.; Stoughton v. Kinzey, 299 Pa. Super. 499, 503, 445 A.2d 1240, 1242 (1982).

A review of the evidence in this case shows that there was sufficient basis for the jury’s award. At trial, Carolyn Verba testified that she had bruising on her lower legs for several weeks after the accident and suffered pain in her lower back and right shoulder. (N.T. pp. 347-49.) The plaintiff underwent an MRI which showed a fracture of the greater tuberosity bone in her upper right arm. (N.T. p. 356 and deposition testimony of Thomas DiBenedetto M.D. atp. 10.) After the fracture healed, plaintiff underwent a procedure whereby her shoulder was manipulated while she was under anesthesia. (N.T. pp. 358-59.) The plaintiff eventually received a cortisone injection and finally underwent an arthroscopic surgical procedure to shrink the shoulder capsule. (N.T. pp. 369-70.)

Dr. DiBenedetto testified that, even with the surgical intervention, the plaintiff’s injuries may never reach maximum medical improvement regarding her shoulder and that there is a 15-20 percent chance that she will need an open operative procedure in the future. (DiBenedetto deposition at pp. 41-44.)

Richard Schmidt M.D. testified that the thermal capsular shrinkage surgery is not effective long-term and that generally over time the condition degenerates to preoperative condition. (Deposition of Dr. Schmidt at pp. 12-13.)

The plaintiff testified that she regularly suffers pain and stiffness in her shoulder and pain in her back when sitting for long periods of time or when bending. She has had and will continue to have trouble caring for her twin daughters due to this pain and stiffness. (N.T. pp. 366-68.) Plaintiff also now has one shoulder that is noticeably lower than the other, affecting her symmetry. (N.T. pp. 349-50.)

In addition, Gregory Huron D.C. testified that the plaintiff had decreased sensation in her L-4, L-5 dermatome, which demonstrated trauma to the nerve. (N.T. at p. 123.) He further testified that both the plaintiff’s hips and shoulders were not balanced properly. His initial impressions included joint dysfunction, muscle spasm, restriction of motion and joint pain. (N.T. at pp. 124-26.) Dr. Huron also testified that it was his opinion that the plaintiff would never fully recover and be 39 percent more likely to suffer degenerative wear and tear within seven years. (N.T. at p. 138.)

Further, the jury was instructed that, if they found that the plaintiff’s injuries would continue into the future, they must determine the life expectancy for the plaintiff. The trial court then provided that, according to statistics compiled by the United States Department of Health and Human Services, the life expectancy of all persons of the plaintiff’s sex and age at the time of the accident was 44.7 years. The jury was further instructed that this “figure is offered to you only as a guide, and you are not bound to accept it if you believe the plaintiff would live longer or less than the average individual in her category.” (N.T. at p. 523.) The verdict of $500,000, when considered against the cited life expectancy of 44.7 years, averages out to approximately $ 11,000 per year. Moreover, the $500,000 verdict was reduced by 40 percent to reflect the juiy’s finding that the plaintiff was comparatively negligent.

The jury and trial judge are clearly in the best position to evaluate the evidence. Nudelman v. Gilbride, 436 Pa. Super. 44, 51, 647 A.2d 233, 237 (1994). It is within the juiy’s province to believe or disbelieve all or part of the testimony of any witness and arrive at a verdict, which it determines will compensate the plaintiff for their loss. Stoughton v. Kinzey, 299 Pa. Super. 499, 445 A.2d 1240 (1982).

Upon review of the evidence presented at trial, the juiy’s verdict was not so excessive as to shock one’s sense of justice. Defendant’s motion for a new trial is denied.

Remittitur

In the alternative to a new trial, both Eltringham and Kravco seek a remittitur of the verdict.

In determining whether a defendant is entitled to remittitur of a damages award, the question is whether the award falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption. Potochnick v. Perry, 861 A.2d 277 (Pa. Super. 2004). Remittitur is justified only in limited instances where the verdict is plainly excessive, exorbitant and beyond what the evidence warrants, Murray v. Philadelphia Asbestos Corp., 433 Pa. Super. 206, 640 A.2d 446 (1994), aff’d sub nom., Simmons v. Pacor Inc., 543 Pa. 664, 674 A.2d 232(1996), or where the verdict resulted from partiality, prejudice, mistake or corruption. Rafter v. Raymark Industries Inc., 429 Pa. Super. 360, 632 A.2d 897 (1993).

Whether the jury’s verdict so shocks the sense of justice such that the trial court should have granted remittitur is a matter of law. Bey v. Sacks, 789 A.2d 232 (Pa. Super. 2001). In reviewing an award of damages, the courts should give deference to the decisions of the trier of fact who is usually in a superior position to appraise and weigh the evidence submitted. Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410 (Pa. Super. 2004). A court should not merely substitute its judgment for that of the fact-finder, but must review the record in light of the evidence accepted by the jury. Id.

Based upon the evidence presented at trial, as reviewed previously, we find that the jury’s verdict was not so shocking as to require remittitur as a matter of law in this case. The evidence offered and accepted as credible by the j my established that the plaintiff suffered injuries and will never fully recover from those injuries. Defendants’ motions seeking remittitur of the verdict are denied.

Judgment n.o.v. With Regard to Ronald Verba

Kravco also seeks a judgment n.o.v. with a new trial for the assessment of liability against Ronald Verba. Kravco contends that judgment n.o.v. is appropriate in this case because “the evidence of Ronald Verba’s negligence was such that no two reasonable minds could disagree that he should have felt liable.” (Defendant’s brief in support at p. 15.) Initially, we note that whether or not Ronald Verba should have felt liable is not a legal standard for judgment n.o.v.

In deciding whether or not to grant judgment n.o.v. in favor of one of the parties, the court must consider the evidence together with all reasonable inferences drawn therefrom in a light most favorable to the verdict winner. Janis v. AMP Inc., 856 A.2d 140, 143 (Pa. Super 2004). There are two bases upon which a judgment n.o.v. can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Id. at 143-44; Capital Care Corp. v. Hunt, 847 A.2d 75, 81-82 (Pa. Super. 2004).

In this particular case, Kravco argues that Ronald Verba led his wife into a position of danger by letting go of his wife’s hand and speeding up when perceiving the threat of the oncoming Eltringham vehicle.

The evidence was such that the jury could conclude that Mrs. Verba alone was responsible for her safety. It is clear that she was aware that she needed to look both directions before proceeding across the street. (N.T. at pp. 206, 333, and 379.) The jury in this case held the plaintiff, Carolyn Verba, liable for her own failure to avoid the oncoming vehicle without finding any liability therefore on the part of her husband, Ronald Verba, which a reasonable mind could conclude.

We find Kravco’s motion to be without merit. The apportionment of liability by the jury was supported by competent evidence. Kravco’s motion for judgment n.o.v. with a new trial for an assessment of liability against Ronald Verba is therefore denied.

ORDER

And now, June 9, 2005, upon consideration of defendant Kravco Maintenance Company, c/o Kravco Company’s motion for post-trial relief filed February 11,2005, defendant, Veronica Eltringham’s motion for post-trial relief filed February 14, 2005, the opposition of plaintiffs, Carolyn Verba and Ronald Verba, filed April 26, 2005, the defendant Kravco Maintenance Company, c/o Kravco Company’s motion to strike plaintiffs’ brief in opposition filed May 6, 2005, after argument held May 9, 2005, and in accordance with the opinion attached hereto, it is ordered that the motion to strike plaintiffs’ brief of defendant Kravco Maintenance Company, c/o Kravco Company is denied.

It is further ordered that the motion for post-trial relief of defendant Kravco Maintenance Company, c/o Kravco Company is denied.

It is further ordered that the motion for post-trial relief of defendant Veronica Eltringham is denied.

      . The videotaped deposition of Thomas DiBenedetto M.D. was played for the jury during the trial. It is the transcription of that deposition to which we cite in this opinion.

      . Dr. Schmidt’s deposition testimony was played via videotape for the jury on February 3,2005.


source: Caselaw Access Project

author: GRINE, J.,

license: Public Domain

text:
    Mount Nittany Inn v. Benner

      C.P. of Centre County,
    no. 2003-1781.

      Terry J. Williams, John F. Brown Jr., and Matthew F. Noone, for plaintiff.

      Kevin P. Smith and Michael J. Reilly, for defendant/ plaintiff.

      Joseph W. Denneler, for additional defendant.
    September 27, 2005
   GRINE, J.,

Presently before this court is defendants’, Robert G. Benner and B&S Sheet Metal’s motion to exclude plaintiffs’ cornstarch demonstration and testing, through which they seek to preclude plaintiffs, Mount Nittany Inn et al., from introducing certain evidence at trial. This court held a hearing on the matter on September 6,2005. Counsel for the defendants had previously submitted a supporting memorandum of law on this motion, counsel for plaintiffs submitted a response to defendants’ motion, and counsel for both plaintiffs and defendants presented evidence in the form of depositions at the hearing. This court has reviewed defendants’ motions to exclude, as well as plaintiff’s response to the motions, and for the reasons set forth below Denies' defendants’ motion to exclude the cornstarch demonstration.

PRELIMINARY DISCUSSION

This case arises out of a fire that occurred on April 16, 2003. Prior to the fire, on or about July 3,1991, the plaintiff began renovating the restaurant located at 559 North Pennsylvania Avenue, Centre Hall, Centre County. As part of the renovation project, the kitchen was relocated to the northwestern part of the building. In connection with the construction of the new kitchen, plaintiff entered into a written contract with defendant for the design, fabrication, and installation of a kitchen hood and exhaust duct system. Additional defendant, Swartz Fire & Safety Equipment Company Inc., installed, periodically inspected, and maintained a kitchen fire suppression system in plaintiff’s kitchen, which was located under the exhaust hood where the fire is alleged to have originated. As a result of the fire, plaintiff brought this negligence, breach of contract, and breach of implied warranty action against defendants, whereby defendants filed a joinder complaint against additional defendant.

FINDINGS OF FACT

(1) On April 16,2003, J. Edward Hill first noticed fire inside the salamander in plaintiff’s kitchen.

(2) As a result, Mr. Hill grabbed a box of cornstarch or baking soda and pulled out the cooking deck from inside the salamander. Mr. Hill then held the box of cornstarch/ baking soda over the cooking deck and sprinkled it directly over the fire.

(3) Mr. Hill “use[d] the box... just like a salt shaker.”

(4) Mr. Hill then observed another fire burning on top of the salamander by the exhaust vent.

(5) The flames on this second fire were approximately five to eight inches high.

(6) Mr. Hill applied the cornstarch/baking soda to the fire on the top of the salamander the same way he applied it to the fire on the cooking deck, or that he again shook “the box ... just like a salt shaker.”

(7) When Mr. Hill applied the cornstarch to the flames on both the cooking deck and the top of the salamander the flames went out “immediately.”

(8) Mr. Ronald Thaman, plaintiff’s expert, performed testing to demonstrate the fire suppressive qualities of cornstarch. This cornstarch experiment was conducted on October 8,2004, in a parking lot in Columbus, Ohio.

(9) Mr. Thaman had the opportunity to, and did, review Mr. Hill’s deposition before conducting his experiment.

(10) Mr. Thaman placed a mixture of shortening and lard in two glass dishes (loaf pans) sitting atop hotplates. He then heated up the two glass dishes until the grease and lard mixture reached its flashpoint and burst into flames.

(11) Mr. Thaman then poured cornstarch into one cooking dish, and baking soda into the other, shaking each box over the flames like a salt shaker. Both fires were extinguished.

(12) Based upon this experiment, Mr. Thaman concluded that both cornstarch and baking soda extinguish small kitchen fires.

CONCLUSIONS OF LAW

(1) “The admissibility of evidence, including demonstrative evidence, rests largely within the discretion of the trial court.” Harsh v. Petroll, 840 A.2d 404, 421 (Pa. Commw. 2003) (citing Leonard v. Nichols Homeshield Inc., 384 Pa. Super. 1, 557 A.2d 743 (1989).

(2) Demonstrative evidence is admissible if its probative value outweighs the likelihood of improperly influencing the minds of the jury. Jackson v. Spagnola, 349 Pa. Super. 471, 503 A.2d 944 (1986).

(3) “Where the demonstration of evidence is a physical representation of the incident or event, the conditions must be sufficiently close to those involved in the accident at issue to make the probative value of the demonstration outweigh the prejudicial effects.” Harsh v. Petroll, 840 A.2d 404, 421 (Pa. Commw. 2003). (citation omitted)

(4) Expert testimony may not be used to bolster the credibility of the jury, as witness credibility is solely within the province of the jury. Commonwealth v. Johnson, 456 Pa. Super. 251, 690 A.2d 274 (1997).

DISCUSSION

In seeking to preclude the introduction of plaintiffs’ cornstarch demonstration and testing, defendants claim that introduction of the demonstration at trial would be irrelevant and unduly prejudicial. Plaintiffs contend that Mr. Thaman’s testimony is relevant and that the probative value of his cornstarch testing outweighs any possible prejudice suffered by the defendants by its introduction.

Demonstrative evidence is generally admissible if its probative value outweighs the likelihood of improperly influencing the jury. Pascale v. Hechinger Co. of Pa., 426 Pa. Super. 426, 437, 627 A.2d 750, 755 (1993). The proponent of such demonstrative evidence must prove it is sufficiently close to the accident to make the probative value outweigh the likely prejudicial effect. Id.

The evidence, per Mr. Thaman’s deposition, indicates that Mr. Thaman was specifically asked to determine whether or not cornstarch would extinguish a fire of the size Mr. Hill experienced at Mount Nittany Inn on the day of April 16,2003 (dep. p. 36, ¶¶14-18), not to specifically recreate the fire that occurred. (Dep. p. 52, ¶¶5-7.)

In conducting his experiment, Mr. Thaman used instruments and procedures similar to that which Mr. Hill stated were involved. Mr. Thaman testified that he used two glass loaf pans, each approximately 18 square inches, which “closely resembled and simulated what Mr. Hill testified to [what] was at the Mount Nittany Inn.” (Dep. p. 51, ¶¶15-17.) Further, Mr. Thaman was able to achieve flames in each of the two loaf pans that were approximately the same height as the fire at Mount Nittany Inn. (Dep. p. 55, ¶¶8-9.) Finally, Mr. Thaman’s opinion is that, when he was conducting the experiment, he was able to place the cornstarch box in the same approximate position as that of Mr. Hill when putting out the fire. (Dep. p. 62, ¶¶3-18.)

In sum, as Mr. Thaman’s deposition clearly indicates, the cornstarch experiment is a sufficient physical representation of the fire and Mr. Hill’s reaction thereto existing at Mount Nittany Inn on April 16, 2003:

“Q: Given the fact that it was a demonstration as opposed to a re-creation . . . [w]hat are the differences, if any, between what Mr. Hill did on April 16 of 2003 and what you did on October 8 of 2004?
“A: I believe very, very little difference ... the size of the fire was similar. Mr. Hill describes a fire the size of around three inches by six inches. He talks about taking a box of cornstarch, pouring, shaking, like a salt shaker, on top of it. The fire extinguishes. What did I do, I had a fire inside of a glass pan, approximately three inches by six inches[.] Took the box of cornstarch and poured it exactly as Mr. Hill said he indicated he did in the Mount Nittany Inn fire. My fire went out immediately, just as Mr. Hill’s fire went out immediately.” (Dep. p. 79, ¶¶5-24, p. 80, ¶1.) As such, defendants’ motion to exclude plaintiffs’ cornstarch testing and demonstration is denied.

ORDER

And now, September 27, 2005, after a hearing on the matter and a review of defendants’ memorandum of law in support of their motion to exclude plaintiffs’ cornstarch demonstration and testing and plaintiffs’ response to defendants’ motion to exclude, it is hereby ordered and decreed that defendants’ motion is denied.

However, Mr. Thaman’s testimony at trial is limited to the conclusions of the cornstarch experiment, relating to whether it is possible to extinguish a fire with cornstarch, and not evaluating or bolstering the credibility of Mr. Hill’s testimony.


author: DYCFI, J.,

text:
    Clayton v. City of Philadelphia

      Michael W Mulvey, for plaintiff.

      Martin G. Malloy, for defendant.
    September 8, 2005
   DYCFI, J.,

Defendant appeals from my April 21,2005 orders that denied its petition to open judgment and its petition to set aside writ of execution.

FACTUAL AND PROCEDURAL HISTORY

The facts of this case are straightforward and not in dispute. Plaintiff Herbert Clayton was permanently injured while working as a police officer for the City of Philadelphia. Thereafter, he filed for workers’ compensation benefits and for disability pension. He was awarded disability pension by the Board of Pensions in September of 2000, and has received pension benefits in the amount of $2,362.21 per month as of January 1998. He was also awarded workers’ compensation benefits in a decision by Workers’ Compensation Judge Gilbert on February 28,2001. The city did not appeal Judge Gilbert’s decision.

When the city failed to pay benefits consistent with Judge Gilbert’s decision, plaintiff filed a reinstatement and penalty petition to enforce the workers’ compensation award. On June 30, 2004, Workers’ Compensation Judge Lincicome awarded Clayton $2,168 per month in workers’ compensation benefits, and rejected the city’s argument that it was entitled to an offset or credit for the disability payments since the city failed to file a Notice of Offset The judge further ordered the city to pay all past-due workers’ compensation benefits with interest. The city then appealed Judge Lincicome’s decision, but was denied supersedeas pending appeal by the Workers’ Compensation Appeal Board on August 16,2004. Nevertheless, the city declined to pay Clayton the retroactive benefits (January 1998 — August 2004) awarded to him in Judge Lincicome’s decision.

On January 5, 2005, plaintiff filed a certified judgment against the city and attached the City of Philadelphia’s General Fund in the amount of $307,136.84, which represents the amount due and owing to plaintiff under Judge Lincicome’s order. Defendant then filed the instant petition to open judgment and dissolve attachment and petition to set aside writ of execution, which were both denied by this court on April 21, 2005.

LEGAL DISCUSSION

The city seeks relief from the fruits of its own failure to diligently protect its interests in the workers’ compensation forum. The instant petitions are but a subterfuge. What the city really seeks is a set aside of a lawful denial of supersedeas by the Workers’ Compensation Appeal Board and a judgment clearly authorized by the Pennsylvania Workers’ Compensation Act, 77 P.S. §1 et seq. (2005). I lack jurisdiction to do either.

An employer may not withhold any payment of workers’ compensation benefits before supersedeas has been granted. See Horner v. C.S. Myers and Sons Inc., 721 A.2d 394 (Pa. Commw. 1998). By denying supersedeas, the Workers’ Compensation Appeal Board ruled that Clayton is entitled to all past-due workers’ compensation benefits with interest, immediately, or until such a date as the city’s appeal is granted. See id. Section 428 of the Workers’ Compensation Act, 77 P.S. §921, states, “the prothonotary shall enter the entire balance payable under the agreement award or order to be payable to the employee or his dependents, as a judgment against the employer or insured liable under such agreement or award.” (emphasis added) Here, Clayton filed a certified judgment against the city for the entire balance payable under Judge Lincicome’s decision. Clayton is entitled to execute on said judgment.

The city mischaracterizes the posture of this case as akin to a petition to open default judgment. See defendant’s petition to open judgment, memorandum of law, pp. 3-5. Generally, judgments regularly entered in adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstances “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court.” Board of Supervisors v. Quarture, 145 Pa. Commw. 377, 384, 603 A.2d 295, 298 (1992), quoting Simpson v. Allstate Insurance Co., 350 Pa. Super. 239, 245, 504 A.2d 335, 337 (1986). No such circumstances are alleged in this case.

Nevertheless, the city argues that the judgment should be opened because it has a meritorious defense; namely, that Judge Lincicome erred in finding that the city was not entitled to an offset of Clayton’s pension benefits. However, the meritorious defense that the city alleges herein was fully adjudicated in front of Judge Gilbert and Judge Lincicome, and is at issue in their pending appeal. Their attempt to collaterally attack the decisions rendered in the underlying workers’ compensation matter is flawed, because a re-examination of the decisions rendered in the underlying dispute is beyond the jurisdiction of this court.

The city also moves to open judgment for plaintiff’s failure to properly notify the city of the certified judgment and praecipe to issue writ. The record reflects that after filing the certified judgment, plaintiff notified the city through the solicitor’s office. The city does not contend that it did not receive actual notice of the judgment and writ. After receiving notice, the city responded expeditiously; the instant petitions were filed within 25 days of the docketing of the certified judgment and within 10 days of the writ. The city suffered no prejudice, as their petitions were considered prompt by this court.

The city also argues that it is entitled to relief under Pa.R.C.P. 3121, which states that “a writ of execution may be set aside upon any legal or equitable ground therefore.” However, the city wrongly suggests that under Rule 3121, this court may substitute its judgment for that of Judge Lincicome and the Workers’ Compensation Appeal Board. Judge Lincicome ordered the city to make certain payments outlined above. Supersedeas was denied. Thus, there is no legal or equitable basis to set aside the writ of execution.

Next, the city argues that the pension fund is exempt from attachment under section 22-1303(1) of the City of Philadelphia Public Employees Retirement Code. However, plaintiff’s attachment is taken against the city’s general fund and not the pension fund. The city also contends that the pension fund is the rightful payee of the judgment lien. However, WCJ Lincicome’s order states that Clayton is entitled to the full workers’ compensation benefits, and that the city is not entitled to an offset.

In summary, Judge Lincicome ordered the city to pay Clayton all past-due workers’ compensation benefits with interest. The city appealed Judge Lincicome’s decision, but was denied supersedeas. The denial of supersedas means that Clayton is entitled to execute on the judgment while the city’s appeal is pending. There is no legal or equitable basis to open judgment or set aside the writ of execution. Therefore, this court properly denied defendant’s petition to open judgment and its petition to set aside writ of execution.

      . In summary, Judge Lincicome found that: (1) Clayton is entitled to workers’ compensation benefits; (2) the city would be entitled to an offset taken by the pension fund for the amount of workers’ compensation benefits and attorney’s fees credits; but, (3) the city never submitted any documentation to the Pension Board advising them of applicable setoffs or credits; and, therefore, (4) the city is not entitled to an offset of workers’ compensation benefits for pension benefits received. See decision and order of Judge Francine Lincicome, WCJ, Bureau Claim no. 2288192, June 29,2004; see also, Welliver McGuire Inc. v. Workers’ Compensation Appeal Board (Padgett), 834 A.2d 668, 671 (Pa. Commw. 2003) (stating that pursuant to 34 Pa. Code §123.4(b), before an employer can offset workers’ compensation benefits, the employer must notify the employee at least 20 days prior to taking the offset).
      The city then filed a Notice of Offset on July 9,2004, giving notice to the plaintiff that the city intended to offset the workers’ compensation benefits by the amount of pension benefits received. The city petitioned Judge Lincicome to review the benefit offset notice taken by the city on July 9, 2004, but orally withdrew the petition in front of Judge Lincicome. Judge Lincicome then issued a formal order dismissing the petition on December 17,2004.

      . A default judgment may be opened when the moving party: (1) promptly filed a petition to open; (2) has shown a meritorious defense; and (3) has provided a reasonable excuse for the failure to file a responsive pleading. See Schultz v. Erie Insurance Exchange, 505 Pa. 90, 477 A.2d 471 (1984).

      . It is well established that a judgment rendered by a court having jurisdiction of parties and subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity or binding effect, by parties or privies, in any collateral action or proceeding. Mangold v. Neuman, 371 Pa. 496, 91 A.2d 904 (1952); Commonwealth Department of Revenue v. City of Philadelphia, 5 Pa. Commw. 358, 290 A.2d 734 (1972); Policino v. Ehrlich, 236 Pa. Super. 19, 345 A.2d 224 (1975), rev'd, 478 Pa. 5, 385 A.2d 968 (1978).


author: RASPANTI, Member,

text:
    Office of Disciplinary Counsel v. Krosby

      Disciplinary Board Docket no. 125 D.B. 2003.
    July 12, 2005 —
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

RASPANTI, 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

On September 9, 2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, Mr. Erling Rolf Krosby. The petition charged respondent with alleged misconduct in connection with court proceedings in Texas, which conduct allegedly violated the Texas Disciplinary Rules of Professional Conduct. Respondent filed an answer to petition for discipline on November 24, 2003.

A pre-hearing conference was held on March 15, 2004, in which respondent participated via telephone conference call. Respondent agreed to certain proposed joint stipulations; however, respondent never signed the joint stipulations of law and fact which memorialized the agreements reached during the pre-hearing conference.

A disciplinary hearing was held on April 27, 2004, before Hearing Committee 1.13, comprised of Chair James J. Zwolak, Esquire, and Members Douglas E. Ress, Esquire and Edward R. Paul, Esquire. Respondent did not appear at this hearing. The committee took judicial notice of respondent’s prior agreement to the stipulations presented at the hearing. Respondent’s exhibits R-l through R-4 were admitted into evidence.

Following the submission of briefs by the parties, the Hearing Committee filed a report on September 16,2004, finding that respondent violated the Texas Disciplinary Rules of Professional Conduct 3.01, 3.02, 3.03(a)(1), 3.04(d), and 5.05(a), and recommending that respondent be suspended for a period of five years.

Respondent filed a brief on exceptions, and although he had not appeared at the underlying hearing, requested oral argument on October 5,2004. Petitioner filed a brief opposing exceptions on October 25, 2004.

Extended oral argument was held on January 10,2005, before a three-member panel of the Disciplinary Board chaired by Marc S. Raspanti, Esquire, with Members Laurence H. Brown, Esquire and Min S. Suh, Esquire. Respondent represented himself at the oral argument held in Philadelphia.

This matter was adjudicated by the Disciplinary Board at the meeting of January 19, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of 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 said rules.

(2) Respondent, Erling Rolf Krosby, was born in 1925 and was admitted to practice law in the Commonwealth in 1990. He does not now, nor has he ever maintained an office for the practice of law in the Commonwealth of Pennsylvania. His attorney registration address is 2243 Foreland. Drive, Houston, Texas 77077. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior record of discipline.

(4) Although respondent’s address is in Texas, he is not admitted to practice law in the State of Texas other than through a pro hac vice motion.

Procedural Background

(5) On August 14, 1991, Burton Securities S.A. filed a voluntary Chapter 11 Bankruptcy petition in the United States Bankruptcy Court of the Southern District of Texas, Corpus Christi Division. The Honorable Richard S. Schmidt was assigned to preside over the Chapter 11 reorganization.

(6) Among Burton Securities’ scheduled creditors were Kleberg & Head P.C., a law firm that represented Burton Securities in an admiralty action, for its unpaid legal fees; Tor Husjord A/S, the manager of a sailing vessel owned by Burton Securities, for its unpaid management fees; Memories Inc.; Marcus Byrd; and Majestic Ltd.

(7) Robert W. Woolsey, Esquire, represented Tor Husjord Shipping A/S, Memories Inc., Marcus Byrd, and Majestic Ltd., in the Chapter 11 case through 1995. Respondent assisted Mr. Woolsey in the Chapter 11 proceedings, attending hearings and drafting documents for Mr. Woolsey.

(8) Kleberg proposed a Reorganization Plan on behalf of all creditors. The creditors voted to accept the Plan and Judge Schmidt approved the Plan on December 1,1992.

(9) The Plan provided that Tor Husjord Shipping A/S was a Tier 3 and partially Tier 4 creditor, receiving partial payment of its proof of claim after Tier 1 and Tier 2 creditors. Tor Husjord did not appeal this order of payment set forth in the confirmed Plan.

(10) The Plan included a liquidation trust agreement that provided for the appointment of Harrell Z. Browning, Esquire as the liquidating trustee.

(11) Trustee Browning’s duties were to liquidate the assets of the estate. The liquidation trust agreement provided that Trustee Browning was liable for his willful misconduct, bad faith or gross negligence, but exempted Trustee Browning from liability for breach of contract in the performance of his duties and his discretionary acts.

(12) The liquidation trust agreement provided that Kleberg could remove Trustee Browning with or without cause, at any time. On or before March 17,1994, Mr. Woolsey requested that Kleberg remove Trustee Browning. Kleberg refused to remove Trustee Browning. Mr. Woolsey took no further direct action to remove Trustee Browning.

(13) One of Burton Securities’ primary assets was a gaming/cruise ship (the vessel). After two unsuccessful efforts to sell the vessel, Trustee Browning filed his third motion to sell the vessel on December 20, 1994.

(14) After all the creditors and their counsel, including respondent, received notice of the proposed sale, Judge Schmidt approved the motion to sell the vessel.

(15) Respondent met privately with Trustee Browning concerning distribution of the proceeds of the sale of the vessel. Respondent argued that Tor Husjord Shipping’s secured claim had priority over the payment scheme set forth in the confirmed Reorganization Plan. After Trustee Browning disagreed with respondent’s interpretation of the Plan, respondent threatened to sue Trustee Browning. Trustee Browning informed respondent that he would seek clarification of the distribution from the bankruptcy court.

(16) On June 2, 1995, Trustee Browning filed a motion for approval of proposed distribution to creditors and declaration of the relative rights of the parties participating in the distribution. On July 12,1995, the bankruptcy court ruled that the confirmed plan of reorganization set forth the priorities for distribution and that the liquidating trustee make distribution according to the priorities provided in the Plan.

(17) On July 12,1995, Judge Schmidt granted Trustee Browning’s motion for approval of proposed distribution to creditors and approved Trustee Browning’s application for his total fee. Respondent did riot request a stay of the distribution of the proceeds to the creditors.

(18) Tor Husjord appealed to the federal district court the bankruptcy court’s ruling in Trustee Browning’s motion for approval of proposed distribution to creditors. On July 2, 1996, the federal district court affirmed the bankruptcy court’s ruling and denied Tor Husjord relief.

(19) Respondent subsequently filed four adversary complaints against Trustee Browning and others in the Bankruptcy Court for the Southern District of Texas. After the bankruptcy court granted defendants’ motions for summary judgment, respondent filed an appeal to the United States District Court for the Southern District of Texas, Corpus Christi Division. Furthermore, on November 19, 1999, respondent filed a motion for a writ of mandamus in the United States District Court for the Southern District of Texas, Brownsville Division.

(20) Following the denial of all relief in Federal District Court, respondent filed five unsuccessful related appeals to the Fifth Circuit Court of Appeals. Finally, respondent petitioned for certiorari to the Supreme Court of the United States, which was denied.

Charge I — Repeated Violations of a Tribunal’s Rules

(21) On May 30,1997, almost two years after the bankruptcy court approved the distribution plan, respondent filed an adversary complaint in the United States District Court for the Southern District of Texas, Brownsville Division. The District Court referred the complaint to the bankruptcy court and venue was transferred to Corpus Christi.

(a) Tor Husjord Shipping A/S, Marcus Byrd, Majestic Ltd., and Memories Inc., creditors in the underlying Chapter 11 case, were plaintiffs in the adversaiy action.

(b) Respondent named Kleberg and Trustee Browning as defendants in the adversary action.

(c) Respondent subsequently added Continental Insurance Company as a defendant.

(22) On August 5, 1997, Kleberg filed an answer to the complaint.

(23) On November 26, 1997, respondent filed a motion for leave of court to file an amended complaint.

(24) Respondent filed his first amended complaint on January 23,1998. Respondent filed his second amended complaint on September 8, 1998.

(25) The Bankruptcy Court granted defendants’ motions for summary judgment on March 19, 1999.

(26) Respondent filed his third amended complaint on May 24, 1999.

(27) Fed.R.C.P 15(a) provides that a party may amend a pleading only once as a matter of course before a responsive pleading is served, otherwise a party may amend the pleading only by leave of court.

(28) Respondent did not obtain leave of court to file the first, second and third amended complaints.

(29) Respondent filed the first, second, and third amended complaints after service of defendants’ response.

Charge II — Erroneous Mandamus Motion

(30) Each federal district court may provide that any or all bankruptcy proceedings shall be referred in the first instance, to the bankruptcy judge for the federal district. If a litigant wants the federal district court to hear a bankruptcy matter then the litigant may file a “motion to withdraw the reference.”

(31) Local Rule 5011 of the United States Bankruptcy Court for the Southern District of Texas provides that a motion to withdraw the reference to the bankruptcy court shall be filed with the clerk of the bankruptcy court, and unless the district court orders otherwise, shall first be presented to the bankruptcy judge for recommendation to the district court.

(32) On May 24, 1999, respondent filed a motion to withdraw reference with the bankruptcy court requesting to be heard in the Brownsville Division.

(33) On November 19, 1999, respondent filed a motion for a writ of mandamus in the United States District Court for the Southern District of Texas, Brownsville Division. The mandamus requested the district court to order the bankruptcy court in Corpus Christi to withdraw the reference and transfer the case to the Brownsville District Court.

(34) Respondent explained in the motion that “on several occasions [he] reminded the bankruptcy court to transmit plaintiff’s motion to withdraw reference,” and filed the mandamus because “no delay in transmitting the motion [was] justified. (P-11, p. 3.)

(35) Title 28 U.S.C. § 158(a) provides that once the venue of a bankruptcy proceeding is established, the appeal from the bankruptcy court is “only to the district court for the judicial district in which the bankruptcy judge is sitting.”

(36) Respondent did not file the mandamus with the Corpus Christi Division of the District Court, the District Court where the bankruptcy judge was sitting. Respondent wanted the Brownsville District Court to hear the appeal because he believed the trustee “did not have any close connections with the judges in Brownsville.” (N.T. pre-hearing conference p. 103.)

(37) The Honorable Janis Jack of the United States District Court for the Southern District of Texas, Corpus Christi, found respondent’s suggestion that the district court in Corpus Christi lacked impartiality, since it sits in the same city as the bankruptcy court and the litigants, to be “outrageous.” (P-17 p. 13.)

(38) Respondent orally withdrew his motion for a writ of mandamus at a February 4,2000 hearing before Judge Jack.

Charge III — Frivolous, Vexatious Complaints As to Kleberg

(39) Respondent’s original complaint against Kleberg on behalf of certain creditors such as Tor Husjord Shipping, alleged that Kleberg owed the creditors a fiduciary duty, breached the fiduciary duty when Kleberg did not fire Trustee Browning, and committed legal malpractice.

(40) Under well-established Texas law, there is no attorney-client relationship absent a specific showing of privity of contract or intent, and an attorney owes no professional duty to a third party or non-client.

(41) Kleberg only represented itself as a creditor in the Chapter 11 reorganization and did not have an attorney-client relationship with the other creditors. There was an order of record to that effect entered by the bankruptcy court long before the original complaint against Kleberg was filed.

(42) Under Texas law there is a two-year statue of limitations for legal malpractice actions.

(43) Respondent filed the original complaint more than three years after the purported malpractice.

(44) Judge Schmidt found that there were no genuine issues of material fact and granted Kleberg’s motion for summary judgment and dismissed the complaint.

Frivolous, Vexatious Complaints As to Browning

(45) Trustee Browning was appointed as the liquidating trustee pursuant to a conformed Chapter 11 Plan. The only signatories to the liquidating trust agreement were the attorney for the debtor and Trustee Browning.

(46) Trustee Browning was not hired to act in any legal capacity for the creditors. Trustee Browning was neither a fiduciary under the liquidating trust agreement nor was he acting as an attorney. As trustee, Mr. Browning retained counsel.

(47) Trustee Browning undertook considerable time and effort to sell the vessel. Numerous hearings occurred in the bankruptcy court concerning Trustee Browning’s efforts to sell the vessel, all of which Tor Husjord Shipping’s counsel attended.

(48) There were three separate approvals to sell the vessel, although all but the last approved sale fell through, with at least one potential buyer surrendering its deposit monies to the bankruptcy estate.

(49) Trustee Browning did not enter into any agreement with any prospective purchaser without prior knowledge of counsel for Tor Husjord Shipping.

(50) During the course of the bankruptcy proceedings leading up to the sale of the vessel, neither Tor Husjord, nor its counsel ever protested to Trustee Browning about the sale of the vessel. Nor did they protest his being paid as the liquidating trustee, or appeal any order approving payments to him as the liquidating trustee.

(51) Pursuant to order of the bankruptcy court, the vessel was sold on May 5, 1995, and money exchanged on that date.

(52) After the money was received, Trustee Browning was contacted by respondent on behalf of Tor Husjord to convince Trustee Browning that his client was a secured creditor entitled to its claim paid before distribution to other creditors, and to threaten suit against Trustee Browning if he did not so distribute the proceeds.

(53) In the face of that threat of suit, Trustee Browning filed a motion for approval of the distribution which brought before the bankruptcy court the issue raised by respondent about the order of distribution. After hearing, at which respondent’s objection on behalf of Tor Husjord was heard, Judge Schmidt overruled the claim, and approved Trustee Browning’s distribution treatment of respondent’s client.

(54) An appeal was taken from the order approving the distribution, although no bond was posted on appeal, and no stay requested or granted. By opinion of July 2, 1996, Judge Jack rejected this appeal on various bases, including that Tor Husjord had participated in the confirmation of the plan without objection, never appealed from the confirmation of the plan, which confirmation order was binding and res judicata, and that the appeal was moot in that no stay had been sought and the plan had already been consummated.

(55) Over 10 months after this appeal was rejected, on May 30,1997, respondent, who was on a contingent fee basis, filed the original complaint against Trustee Browning. Respondent’s original complaint against Trustee Browning accused him of breach of contract, lack of effort to sell the vessel, and legal malpractice.

(56) The original complaint against Trustee Browning was baseless in that Trustee Browning had no contractual duties toward the named plaintiffs, did not owe or breach any contractual duties toward the named plaintiffs and did not engage in any legal malpractice toward the named plaintiffs, whom he did not represent in any legal capacity.

(57) By opinion dated March 19,1999, Judge Schmidt granted summary judgment in favor of Trustee Browning and against plaintiffs on whose behalf respondent filed suit. Judge Schmidt found that “every material action by the trustee, of which plaintiffs complain, was the subject of this court’s order approving the action.” (P-19.)

(58) Judge Schmidt found that as a matter of law, respondent’s claims against Trustee Browning were barred by the doctrine of res judicata.

(59) Judge Schmidt found, among other things, that Trustee Browning’s conduct was in accordance with the business judgment rule, that Trustee Browning had no legal duty or obligation as an attorney toward the plaintiffs.

(60) Immediately thereafter Judge Schmidt also granted Continental’s motion to dismiss the complaint.

(61) Respondent had filed plaintiffs’ first and second amended complaints without leave of court before Judge Schmidt granted summary judgment for defendants.

(62) In the first amended complaint, Trustee Browning was accused of making misrepresentations and false statements to the court and the creditors, which was not true.

(63) In the second amended complaint, Trustee Browning was accused of intentional obstruction of justice and fraud with respect to his trustee’s bond, which was not true.

(64) Respondent then filed the third amended complaint, on May 24, 1999, over two months after Judge Schmidt granted summary judgment for defendants, raising claims of bankruptcy fraud and mail fraud as predicate actions to a RICO claim.

(65) In the third amended complaint, Trustee Browning was accused of conspiring with Kleberg and others to reduce the value of the estate, which was not true.

(66) In opposition to the summary judgment motion, respondent did not file any counter affidavits to sufficiently demonstrate that there were facts in dispute or that he needed additional discovery before the matter could be ruled upon (which he only orally expressed to the court), and he never served any discovery to elicit information sufficient to defeat summary judgment.

(67) On appeal from the bankruptcy court’s grant of summary judgment, Judge Jack reviewed all four of respondent’s adversary complaints.

(68) Judge Jack found that “the original, first, second and third amended complaints were filed in bad faith for the purpose of harassing defendants in an attempt to obtain a settlement for plaintiffs, and were filed without first conducting a reasonable inquiry into the facts of the case or the applicable law.” (P-17, p. 9.)

(69) Judge Jack found that the “original, first, second, and third amended complaints were signed by [respondent] Krosby, and were used to pursue a course of conduct in which defendants were forced to hire attorneys and participate in frivolous litigation. (P-17, p. 9.)

(70) Judge Jack imposed monetary sanctions on respondent for presenting “pleadings signed by him for improper purposes, and needlessly increasing the cost of litigation.” (P-17, p. 26.)

(71) When respondent threatened to sue Browning and others in another forum, Judge Jack issued an injunction prohibiting respondent from filing any other suits without first obtaining her approval.

(72) Trustee Browning testified that respondent’s frivolous, harassing and vexatious lawsuits cost him, the other defendants, and the estate, a substantial amount of time, money and effort.

(73) Specifically, the estate spent about $75,000 defending the complaints, the insurance company spent about $75,000 defending the complaints, the Kleberg firm spent about $40,000 defending the complaints, and Trustee Browning, on his indemnity obligations to the insurance company which posted the trustee’s bond, had to pick up part of the insurance company’s costs on appeal.

(74) In addition, Trustee Browning spent time defending himself, which he estimated to be about $75,000 worth of his own time, accumulating along the way about 17 file boxes of litigation materials.

Charge IV — Repeatedly Disobeyinq a Court Order To Produce Client and Making Misrepresentations to a Tribunal

(75) On October 26, 1999, respondent filed in the United States District Court for the Southern District of Texas, an appeal from the bankruptcy court’s decisions dismissing the complaints filed against Kleberg, Trustee Browning, and Continental. By notice dated January 12, 2000, Judge Jack consolidated the bankruptcy appeal and the mandamus action for a hearing before her on January 24, 2000.

(76) On January 24, 2000, Judge Jack entered a sua sponte order to respondent to show authority to represent Tor Husjord and to have his client present for a hearing on January 26, 2000.

(77) On January 25,2000, respondent filed a motion to continue the hearing in order for him to present his client.

(78) On January 26, 2000, Judge Jack entered an order striking the continuance motion due to respondent’s failure to comply with Local Rule 6(a)(4), which required a statement regarding respondent’s conference with opposing counsel.

(79) Mr. Husjord did not appear at the January 26, 2000 hearing as ordered.

(80) Respondent explained that Mr. Husjord was unable to appear because it was very short notice to make arrangements to travel from Norway to Texas.

(81) Judge Jack continued the hearing to February 1, 2000 and ordered respondent to have Mr. Husjord present at the hearing.

(82) Respondent did not have Mr. Husjord present for the scheduled February 1,2000 hearing. Rather, respondent presented Mr. Asbjom Hermannsen, a purported corporate representative of Tor Husjord Shipping.

(83) Mr. Hermannsen testified that Mr. Husjord could not appear because it was “very short notice, he is out traveling” and/or “busy in another case.” (P-23, p. 3.)

(84) Respondent offered another excuse for Mr. Husjord’s absence: that being he had a “terrible accident.” (P-23, p. 42.)

(85) Judge Jack continued the hearing until February 4, 2000, and ordered respondent to have Mr. Husjord present at the hearing.

(86) Respondent agreed to have Mr. Husjord present for the hearing on February 4, 2000.

(87) Respondent was late for the February 4, 2000 hearing. He stated he was late because of a Houston traffic jam, and represented that he was late because he was translating a fax from Norway in the matter.

(88) Respondent failed to present Mr. Husjord for the scheduled February 4, 2000 hearing, as ordered.

(89) Under oath, respondent gave three different excuses for Mr. Husjord’s failure to appear, stating that Mr. Husjord: had colon cancer at some unknown time, had a clot in a vein in his leg six months ago; had a serious accident on atrip to Singapore approximately two months ago.

(90) Respondent informed the court that he could present Mr. Husjord in four weeks, after Mr. Husjord’s health problems improved.

(91) Judge Jack continued the hearing until March 16, 2000, and ordered respondent to have Mr. Husjord present at the March 16, 2000 hearing.

(92) By order dated February 9,2000, filed on February 10, 2000, Judge Jack scheduled a hearing on March 16,2000 to assess respondent’s pro hac vice status, consider sanctions against respondent, and hear evidence on defendants’ attorney’s fees and expenses.

(93) On March 15,2000, respondent filed appellant’s opposed motion to continue hearing.

(94) Respondent’s motion stated that Mr. Husjord could not appear at the scheduled March 16, 2000 hearing because one of his ships sanie near Singapore and he needed to attend the claims negotiation meetings in Norway.

(95) Respondent did not present Mr. Husjord for the March 16, 2000 hearing, as ordered.

(96) On three separate occasions, respondent did not present Mr. Husjord, as ordered by Judge Jack.

(97) Judge Jack found that respondent’s excuses for his failure to present his client “changed during any given hearing, and from hearing to hearing.” Judge Jack concluded that respondent “misrepresented his client’s location, status, and health condition to avoid the necessity for his appearance.” (P-17, p. 19.)

(98) Following a hearing on March 16, 2000, Judge Jack imposed monetary sanctions on respondent personally because respondent “never complied with this court’s repeated orders to appear with his client and prove his authority to represent the plaintiff.” (P-27, P-17, p. 25.)

Charge V — Failure To Provide Norwegian Translator and Interpreter

(99) On January 26, February 4, and February 9,2000, Judge Jack ordered respondent to provide a Norwegian interpreter for any hearing at which language would be an issue, and to plead and prove any foreign law upon which he intended to rely.

(100) At the February 1,2000 hearing, respondent presented the testimony of Mr. Hermannsen, but failed to provide an official Norwegian interpreter for Mr. Hermannsen, as ordered by Judge Jack, other than himself.

(101) Mr. Hermannsen testified he was confused about the court proceeding. Respondent admitted that Mr. Hermannsen asked him the meaning of certain words.

(102) Judge Jack found that “Mr. Hermannsen was obviously unable to understand the proceedings when he appeared and should have had an interpreter.” (P-17, p. 22.)

(103) During the hearing on February 4,2000, respondent presented documents, which he translated from Norwegian, to explain the corporate status of Tor Husjord Shipping.

(104) Respondent failed to provide official translations of these documents as Judge Jack had ordered. Instead, respondent translated the documents himself.

(105) Judge Jack found that respondent’s failure to provide official translations and interpreters was a “blatant disregard of the court’s order.” (P-17, p. 23.)

Charge VI — Improper Course of Conduct Before Federal District Court and Unauthorized Practice After District Court’s Termination of Pro Hac Vice Admission

(106) On May 30, 1997, respondent filed a motion for admission pro hac vice with the United States District Court for the Southern District of Texas, Brownsville Division.

(107) On June 12, 1997, the United States District Court approved the motion.

(108) On February 9, 2000, Judge Jack issued a rule to show cause to tespondent as to why he should not be sanctioned.

(109) On March 16,2000, Judge Jack held an evidentiary hearing on the propriety of continuing respondent’s pro hac vice status.

(110) Under federal law, pro hac vice status can be revoked for making false representations to the court, pursuing dilatory tactics, and engaging in unethical conduct.

(111) Judge Jack found that respondent’s course of conduct demonstrated “his violation of the Federal Rules of Civil Procedure and orders of the court, his disregard for the Rules of Professional Conduct, and his headlong pursuit of a frivolous lawsuit.” (P-17.)

(112) By order dated April 28, 2000, Judge Jack vacated the order admitting Erling R. Krosby pro hac vice and revoked his permission to appear in Tor Husjord Shipping A/S v. Browning.

(113) Judge Jack reasoned that she was “left with no choice but to sanction Krosby” because “[n]ot being subject to the Disciplinaiy Rules of the State Bar of Texas frees Krosby to take outrageous positions and make repeated misrepresentations to the court believing he is not subject to punishment.” (P-17, p. 25.) Judge Jack imposed monetary sanctions on respondent for his “frivolous, harassing course of conduct,” which respondent has failed to pay. (P-17, p. 26.)

(114) On May 4, 2000, respondent filed a pro se motion for change of caption on behalf of Tor Husjord Shipping.

(115) On May 9, 2000, the District Court denied the motion filed on behalf of Tor Husjord.

III. CONCLUSIONS OF LAW

(1) Pursuant to Pa.R.D.E. 201(a)(1), respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(2) Pursuant to Pennsylvania Rule of Professional Conduct 8.5(a), a lawyer admitted to practice in this jurisdiction is subject to the disciplinary action of this jurisdiction, regardless of where the lawyer’s conduct occurs.

(3) Pennsylvania Rule of Professional Conduct 8.5(b) provides that in connection with a proceeding, the rules of conduct to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise. Respondent is subject to the Texas Disciplinary Rules of Professional Conduct.

Charge I — Repeated Violations of a Tribunal’s Rules

(1) T.D.R.P.C. 3.04(c)(1) provides that a lawyer shall not habitually violate an established rule of procedure or of evidence.

(2) Respondent has not violated 3.04(c)(1) as a result of filing three amended complaints in one case, all without leave of court. Respondent’s conduct does not rise to the level of habitual violation.

Charge II — Erroneous Mandamus Motion

(1) T.D.R.RC. 3.01 prohibits a lawyer from bringing a proceeding unless there is a reason for doing so that is not frivolous.

(2) T.D.R.RC. 3.02 prohibits a lawyer from taking an action that unreasonably increases the costs of the case or that unreasonably delays resolution of the matter.

(3) Respondent filed a motion for issuance of a writ of mandamus in the wrong division of the federal district court. This conduct does not rise to the level of a violation of 3.01 or 3.02.

Charge III — Frivolous, Vexatious Complaints

(1)Respondent violated T.D.R.RC. 3.01 and 3.02 by filing frivolous and vexatious complaints.

Charge IV — Repeatedly Disobeying a Court Order To Produce Client and Making Misrepresentations to a Tribunal

(1) T.D.R.RC. 3.02 prohibits a lawyer from taking an action that unreasonably increases the costs of the case or that unreasonably delays resolution of the matter. T.D.R.RC. 3.04(d) prohibits a lawyer from knowingly disobeying, or advising a client to disobey, a court order except on the client’s willingness to accept any sanctions arising from such disobedience.

(2) Respondent did not violate 3.02 and 3.04(d) as relates to the failure of Tor Husjord to appear before Judge Jack.

(3) T.D.R.RC. 3.03(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact to a tribunal. Respondent violated 3.03(a)(1).

Charge V — Failure To Provide Norwegian Translator and Interpreter

(1) T.D.R.P.C. 3.03(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact to a tribunal. T.D.R.RC. 3.04(d) prohibits a lawyer from knowingly disobeying, or advising a client to disobey, a court order except on the client’s willingness to accept any sanctions arising from such disobedience.

(2) Respondent did not violate 3.03(a)(1) with respect to his failure to provide a Norwegian translator and interpreter.

(3) Respondent violated 3.04(d) as he knowingly disobeyed the tribunal’s order to provide the translator and interpreter.

Charge VI — Improper Course of Conduct Before Federal District Court and Unauthorized Practice After a District Court’s Termination of Pro Hac Vice Admission

(1) T.D.R.RC. 5.05(a) prohibits a lawyer from practicing law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction.

(2) After the time that Judge Jack revoked respondent’s pro hac vice status, respondent filed a pro se motion for change of caption on behalf of Tor Husjord Shipping.

(3) Respondent violated T.D.R.RC. 5.05(a).

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with violations of disciplinary rules relating to his misconduct in Bankruptcy Court and the United States District Court for the Southern District of Texas. Petitioner bears the burden of proving ethical misconduct by a preponderance of the evidence that is clear and convincing. Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981). The evidence of record demonstrates that petitioner met its burden of proof.

Respondent is a licensed Pennsylvania attorney who apparently resides in Corpus Christi, Texas. On May 30, 1997, the Federal District Court for the Southern District of Texas granted respondent pro hac vice status to participate in the Burton Securities Chapter 11 bankruptcy proceeding. Respondent represented a creditor, Tor Husjord Shipping, in the underlying bankruptcy action. Approximately two years after the bankruptcy court approved the distribution plan and distributed the assets of the bankruptcy estate, respondent filed an adversary complaint in the United States District Court for the Southern District of Texas, which referred the complaint to the bankruptcy court. Without receiving leave of court, respondent subsequently filed three amended complaints against Trustee Harrell Browning, the law firm of Kleberg & Head, and Continental Insurance Company.

On March 19, 1999, the bankruptcy court dismissed respondent’s complaints upon defendants’ motions for summary judgment. On October 26, 1999, respondent appealed the dismissals to the United States District Court for the Southern District of Texas. Judge Janis Jack held numerous hearings on respondent’s pleadings, including three hearings in which respondent’s client failed to appear as ordered and a hearing to assess respondent’s pro hac vice status. Judge Jack found respondent’s pleadings to be frivolous in these matters. Independent examination of the four complaints by the Hearing Committee and the board likewise confirm that the complaints were vexatious, frivolous and harassing. The complaints contained factual and legal errors. There is no basis to conclude that respondent filed the complaints in good faith. It is apparent that respondent failed to research existing law or investigate underlying facts. Respondent violated T.D.R.P.C. 3.01 and 3.02.

Respondent was repeatedly ordered by the federal district court to provide a Norwegian translator for the court proceedings, and he failed to do so. As a Norwegian national he believed he could conduct this task. He knowingly disobeyed court orders, and this deliberate defiance constitutes a violation of T.D.R.P.C. 3.04(d).

Respondent engaged in the unauthorized practice of law by filing a motion in the federal court after his pro hac vice status was revoked by Judge Jack, who also imposed a substantial monetary sanction upon respondent. Respondent contended that the motion he filed was not the practice of law, but simply a motion to change the style of the pleading. Clearly, the drafting, signing and filing of a pleading in court, no matter how rudimentary, constitutes the practice of law. Respondent violated T.D.R.P.C. 5.05(a).

When measuring the appropriate discipline in an attorney’s case, the board is cognizant of the goals of the disciplinary system, which include protecting the public from unfit attorneys and maintaining the integrity of the bar. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). In determining discipline, the board will consider any aggravating and mitigating factors present in the case.

The aggravating circumstances present in this matter are respondent’s conduct in other federal courts where he is not licensed to practice law, his lack of cooperation during the disciplinary hearing, and his failure to appear for the disciplinary hearing. Respondent filed a lawsuit in New York State against Merrill Lynch, notwithstanding the fact that respondent was not licensed to practice in New York. The committee did not examine the underlying merits of the case, but merely evaluated respondent’s course of conduct in the Merrill Lynch matter as compared to his conduct in the instant matter. Respondent engaged in very similar actions, filing various amended complaints, motions for contempt and default judgment, and using threats of RICO lawsuits against his adversaries.

Respondent was not cooperative during the course of the disciplinary process. He refused to sign stipulations that the parties and Hearing Committee had painstakingly crafted and that he had agreed to. Respondent filed motions not cognizable under the procedural rules of this forum and then filed objections to the Hearing Committee’s refusal to entertain the unauthorized motions. Finally, respondent failed to appear at his disciplinary hearing and provide the committee with the opportunity to assess his demeanor and credibility. Mere days before the scheduled hearing, respondent informed the committee that he would not be attending due to financial hardship.

Respondent did not participate in the disciplinary hearing; however, he did submit a brief to the Hearing Committee and filed a brief on exceptions with the Disciplinary Board. Respondent appeared for the lengthy oral argument. Respondent is a tenacious advocate for his perceived positions. Respondent’s arguments were at times incoherent, unfocused, lacked specificity and unfortunately were riddled throughout with accusations and innuendos of wrongdoing by the Office of Disciplinaiy Counsel and the Hearing Committee, ever suggesting that further lawsuits might be pursued if the disciplinary charges were not dropped. The board’s de novo review of the record shows that respondent’s accusations are unfounded and furthermore, that respondent’s actions violated disciplinary rules.

In determining the discipline, the board is also guided by precedent for the purpose of comparing respondent’s conduct against other similar transgressions.

Where a respondent files a single frivolous lawsuit to further the interests of his client, the Supreme Court imposed a public censure. In re Anonymous No. 85 D.B. 97, 44 D.&C.4th 299 (1999). In that case, the respondent represented a corporate debtor in a Chapter 11 bankruptcy. With the respondent’s knowledge and direction, the respondent’s law firm filed a $4.25 million adversary complaint and preliminary injunction against the attorney representing the creditor’s committee and his law firm. The board found that the respondent never had any intent to proceed with trial on the merits of the complaint, and filed the unsupported lawsuit as a way of gaining advantage to intimidate in negotiations.

Where a respondent files numerous frivolous lawsuits, discipline imposed by the Supreme Court has been either a five-year suspension or disbarment. In Office of Disciplinary Counsel v. Price, 557 Pa. 166, 732 A.2d 599 (1999), Mr. Price filed pleadings accusing two district justices and an assistant district attorney of wrongdoings, all of which were denied by the defendants. The Supreme Court found that Mr. Price did not conduct a reasonably diligent inquiry into the accuracy of the allegations, but instead relied on rumors, innuendo and his own perceptions. Concluding that Mr. Price’s allegations were either knowingly false or made without objective reasonable belief that they were true, the court imposed a five-year suspension. In the matter of In re Anonymous No. 48 D.B. 93, 29 D.&C.4th 213 (1995), the respondent filed frivolous pleadings, raised groundless defenses, and made numerous misrepresentations in pleadings and in statements to the court in three separate lawsuits. The board found that substantial discipline was warranted as the respondent’s conduct evidenced a callous disregard for the administration of justice. The board recommended and the court imposed disbarment.

In the foregoing cases, the board and the Supreme Court recognized the importance of protecting the public and the courts from unfit attorneys. An attorney who persistently and consistently misuses the judicial system as his own personal arena for retaliation should not be permitted the privilege of practicing law. Respondent showed a marked lack of remorse or understanding as to the seriousness of his ongoing behavior. The underlying facts and aggravating factors in this matter emphasize that respondent is unfit to practice law at this time. The public is best served by removing respondent from the practice of law for a period of five years and requiring that he petition for reinstatement.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Erling Rolf Krosby, be suspended from the practice of law for a period of five years.

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

Board Members Sheerer and Gephart dissented and would recommend disbarment.

Board Member Teti recused.

ORDER

And now, September 30,2005, upon consideration of the report and recommendations of the Disciplinary Board dated July 12, 2005, the petition for review and responses thereto, it is hereby ordered that Erling Rolf Krosby be and he is suspended from the bar of this Commonwealth for a period of five years, 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.


author: NEWMAN, Member,

text:
    In re Ferleger

      Disciplinary Board Docket no. 51 D.B. 2004.
    May 4, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

NEWMAN, Member,

-Pursuant to Rules 208(d)(2)(iii) and 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement from inactive status and petition for discipline.

I. HISTORY OF PROCEEDINGS

On March 2,2004, David Ferleger filed a petition for reinstatement from inactive status. On July 15, 2004, a joint stipulation in lieu of petition for discipline was filed by Office of Disciplinary Counsel and David Ferleger, herein referred to for ease of reference as respondent. By order of the Disciplinary Board dated July 21,2004, the petition for reinstatement from inactive status and the stipulation in lieu of petition for discipline were consolidated for hearing.

A hearing was held on September 23, 2004, before Hearing Committee 1.17 comprised of Chair Gilbert J. Scutti, Esquire, and Members Heather Gallagher Tucker, Esquire, and Martin N. Lisman, Esquire. Respondent appeared pro se.

Following the submission of briefs by the parties, the hearing committee filed a report on December 28,2004, and recommended that respondent be reinstated to active status and that he receive a private reprimand for his unauthorized practice of law while on inactive status.

Office of Disciplinary Counsel filed a brief on exceptions to the report of the Hearing Committee on Januaiy 14,2005, contending that respondent’s misconduct warrants public discipline. Respondent filed a brief on exceptions on January 25,2005, and requests that the board uphold the recommendation of the Hearing Committee.

This matter was adjudicated by the Disciplinary Board at the meeting of March 16,2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Office of Disciplinary Counsel, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of 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 said rules.

(2) Respondent, David Ferleger, was bom in 1948 and was admitted to the practice of law in the Commonwealth of Pennsylvania in 1972. His current home address is 620 W. Mt. Airy Avenue, Philadelphia, PA 19119. His current business address is 10 Presidential Blvd., Suite 115, Bala Cynwyd, PA 19004. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior history of discipline.

(4) Respondent was placed on inactive status in August 1997 as a result of his failure to maintain his required Continuing Legal Education credits.

(5) Respondent sought reinstatement from inactive status by way of a petition for reinstatement from inactive status and special reinstatement questionnaire filed with the Disciplinary Board on March 2, 2004.

(6) Question no. 11 on the questionnaire asks: “Have any legal services been performed for clients with or without fee during the period of inactive status? If so, give particulars.”

(7) Respondent stated the following in response to no. 11: “I have not accepted cases for years now. Several years ago I assisted for a short time several clients who had been abused by a psychiatrist, and several individuals who were denied disability accommodations on an admission test.” (emphasis in original)

(8) The Disciplinary Board Secretary forwarded the petition and questionnaire to Office of Disciplinary Counsel. In a letter dated April 13, 2004, Office of Disciplinary Counsel wrote to respondent and requested, among other things, additional information regarding respondent’s answer to no. 11 on the questionnaire.

(9) Respondent replied in a letter dated April 26,2004, and acknowledged filing five cases in the Chester County Court of Common Pleas. Respondent also acknowledged filing two cases in the United States District Court for the Eastern District of Pennsylvania.

(10) As a result of the information respondent provided to Office of Disciplinary Counsel, a discipline file was opened.

(11) Seeking to expedite the process and cooperate with Office of Disciplinary Counsel, respondent acknowledged that he acted inappropriately with regard to the cases and agreed to consolidate the reinstatement and disciplinary matters.

(12) Between February 1999 and January 2001, five cases were filed in the Chester County Court of Common Pleas against defendant Byron Braid M.D. In two of the cases, claims were also filed against two additional defendants.

(13) Respondent entered his appearance in a suit captioned Lohmann v. Braid on April 18, 2000.

(14) Respondent filed complaints in four more suits against the defendant, Dr. Braid, in the Court of Common Pleas of Chester County. All of these cases were filed within a six-month time period. Litigation continued in the cases thereafter; three of the cases ended in 2001, with an appeal in one decided in 2003; two of the cases ended in 2002.

(15) Ultimately, all five of the cases were disposed of before trial.

(16) During the course of the Lohmann case, respondent filed approximately 25 discovery and substantive motions and responses to motions. He also took an appeal to the Superior Court.

(17) Respondent filed Hesselbacher v. Braid in August of 2000 by a writ of summons. The case was litigated for less than one year. During that time respondent filed approximately six motions, letters or pleadings.

(18) Respondent filed Dewey v. Braid in August of 2000 by writ of summons. The case was litigated for approximately 13 months. During that time respondent filed the complaint as well as several motions and briefs.

(19) Respondent filed Krejs v. Braid in August of2000 by writ of summons. The case was litigated for one year and eight months. During that time, respondent filed the complaint as well as several letters and replies, an answer to new matter, and motions.

(20) Respondent filed Collins v. Braid in January of 2001 by writ of summons. The case was litigated for about one year and nine months. During this time, respondent filed the complaint as well as 10 other motions or responses.

(21) At the time of the filing and pendency of the Chester County Court cases, respondent did not notify his clients, defense counsel, or the court that he was ineligible to practice in Pennsylvania state court.

(22) In addition to the five state court cases, respondent filed two cases in the Eastern District of Pennsylvania on behalf of law school students seeking accommodations when taking the LSAT. The first case was filed in 2000 and the second in 2002. Both cases ended shortly after filing.

(23) While respondent was eligible to practice in federal court, at the time he filed the federal cases, he was unaware of what effect his inactive status had on his ability to practice law in federal court.

(24) Respondent filed his petition for reinstatement from inactive status in March 2004 and answered certain questions pertaining to whether he performed legal services, as described above in no. 7. At the time respondent supplied his response his most recent affirmative act of practicing law occurred in November 2002, in the Lohmann matter, which was less than two years before he filed his questionnaire.

(25) Respondent remained as attorney of record in the Lohmann matter through the conclusion of the case. The lower court judgment was affirmed in September 2003 and the record remitted in February 2004.

(26) The letterhead utilized by respondent during the period of his inactive status did not state that his practice was limited to federal court only.

(27) Respondent remained listed in area directories as a lawyer during the period he was on inactive status.

(28) Respondent testified on his own behalf at the disciplinary hearing. Respondent explained his response to question 11 as follows: “when I as a lawyer say I haven’t accepted cases, several years ago I assisted, et cetera, to me assisting means doing what I do. I’ve been a litigator for 30 years, and if I say I helped somebody, to me it’s from the point of view of being a litigator.” (N.T. 54.)

(29) Respondent understood that inactive status meant that he was unable to practice law.

(30) Respondent cooperated with Office of Disciplinary Counsel in its investigation of the disciplinary matter by providing the information specifically requested and facilitating the process by waiving the filing of a petition for discipline.

(31) Office of Disciplinary Counsel was satisfied that respondent gave an accurate description of his legal activities in Pennsylvania while on inactive status.

(32) Respondent expressed remorse for his actions.

III. CONCLUSIONS OF LAW

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

(1) R.P. C. 5.5 (b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

(2) R.P.C. 7.1(a) — A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as whole not material misleading.

(3) Pa.R.D.E. 203(b)(3) — The following shall also be grounds for discipline: (3) willful violation of any other provision of the Enforcement Rules via Pa.R.D.E. 217, as provided below.

(4) Pa.R.D.E. 217(b) — A formerly admitted attorney shall promptly notify or cause to be notified, by registered or certified mail, return receipt requested, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the transfer to inactive status.

(5) Pa.R.D.E. 217(c)(1) and (2) — A formerly admitted attorney shall promptly notify or cause to be notified, of the transfer to inactive status, by registered or certified mail, return receipt requested: (1) all persons or their agent or guardian to whom a fiduciary duty is or may be owed at any time after the transfer to inactive status, and (2) all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing. The responsibility of the formerly admitted attorney to provide the notice required by the subdivision shall continue for as long as the formerly admitted attorney is on inactive status.

(6) Pa.R.D.E. 217(j)(4) — A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with certain requirements as contained in the rule.

IV. DISCUSSION

This matter is before the board for consideration of David Ferleger’s petition for reinstatement from inactive status, and the disciplinary charges that arose as a result of information revealed in the petition indicating that respondent practiced law while on inactive status.

The record is clear, and respondent admits, that he engaged in the unauthorized practice of law while on inactive status. Respondent was transferred to inactive status by court order in August of 1997 due to his failure to maintain his required Continuing Legal Education credits. Respondent had knowledge that he had been transferred to inactive status. He was apprised of his status each year when he received his annual attorney registration form. He understood that inactive status meant that he should not be practicing law. Despite this understanding, respondent filed or assumed responsibility as attorney of record for five cases in the Court of Common Pleas of Chester County while on inactive status. Respondent held himself out as a licensed practitioner, as evidenced by his court appearances and filings, his letterhead and his failure to remove his name from the telephone and legal directories.

Respondent’s admitted misconduct clearly impacts his desire to regain active status. His unauthorized practice of law and his less than candid response to a question on the reinstatement questionnaire reflects negatively on his moral qualifications. Respondent’s actions were not isolated instances of practice. He actively litigated five matters in state court between 2000 and 2002. He deliberately undertook these matters with the knowledge that he was not permitted to do so.

The Supreme Court takes seriously the unauthorized practice of law. Depending on the presence of aggravating and mitigating factors and the degree of willfulness exhibited, suspensions ranging from three months to two years have been imposed in recent cases. Several recent cases have resulted in suspensions of one year and one day. In Office of Disciplinary Counsel v. Brown, 64 D.B. 2003, 954 Disciplinary Docket no. 3 (Pa. Oct. 15, 2004), Mr. Brown was employed as a part-time public defender in Erie County. While on inactive status, he defended at least 97 criminal defendants from January 2001 to February 2002. In Office of Disciplinary Counsel v. Forman, 70 D.B. 2001, 799 Disciplinary Docket no. 3 (Pa. Jan. 31, 2003), Mr. Forman continued to practice law for 12 years while on inactive status. In the matter of Office of Disciplinary Counsel v. Harrigan, 123 D.B. 2000, 783 Disciplinary Docket no. 3 (Pa. Nov. 25, 2002), Mr. Harrigan was placed on inactive status for failure to comply with his Continuing Legal Education requirements. While on inactive status, the attorney used letterhead and held himself out as a practicing attorney. He had a long history of transfers to inactive status for failure to fulfill his administrative responsibilities regarding his law license, and had a history of two informal admonitions, one of which was for practicing law while on inactive status. Additionally, in the matter of Office of Disciplinary Counsel v. Rodney, 118 D.B. 2000, 743 Disciplinary Docket no. 3 (Pa. June 13, 2002), the respondent continued to represent three clients in state court after being placed on inactive status.

Respondent’s unauthorized practice of law, compounded by his deceptive response in his reinstatement questionnaire, merits a suspension of one year and one day and, furthermore, is consistent with recent sanctions imposed by the Supreme Court for similar conduct.

As the board is recommending a suspension of one year and one day, we further recommend that the petition for reinstatement from inactive status be denied.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, David Ferleger, be suspended from the practice of law for a period of one year and one day, and that the petition for reinstatement from inactive status be denied.

The board further recommends that respondent be directed to pay the necessary expenses incurred in the investigation and prosecution of this matter.

Board Members Saidis and Suh dissented and would recommend a two-year suspension and denial of the petition for reinstatement from inactive status.

Board Member Curran did not participate in this matter.

Board Members McLaughlin, Brown, Pietragallo and Nordenberg did not participate in the March 16, 2005 adjudication.

ORDER

And now, August 3, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated May 4, 2005, the motion for oral argument, the petition for review and responses thereto, the motion for oral argument is denied pursuant to Rule 208(e)(4), Pa.R.D.E., and it is hereby ordered that David Ferleger be and he is suspended from the bar of this Commonwealth for a period of one year and one day, the petition for reinstatement from inactive status is denied, and respondent shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that the expenses incurred in the investigation and processing of these matters shall be paid by David Ferleger.

Messrs. Justice Castille and Baer dissent as to the imposition of the sanction.