author: BERNSTEIN, J,

text:
    Thibodeau v. Comcast

      Mark R. Cuker, Matthew I. Cohen, Neal A. Jacobs, Joshua A. Gelman and Gerald J. Williams, for plaintiffs.

      Walter H. Swayze, Seamus C. Duffy, Mary Catherine Roper, Braden A. Borger and RonaldH. Reynier, for defendants.
    January 24, 2006
   BERNSTEIN, J,

“The law in its majesty prohibits rich and poor alike from sleeping under bridges.” — Anatole France

Defendants in Thibodeau v. Comcast, April term 2003, no. 4526, and Afrolian v. AT&T Wireless, August term 2002, no. 0469, raise the issue of whether class actions may be precluded in consumer contracts of adhesion. In the interest of judicial economy, this court addresses this issue in one opinion.

AFROLIAN v. AT&T WIRELESS

On August 7,2002, Brandon Beckmeyer filed this class action lawsuit against AT&T Wireless and Panasonic Corporation, alleging that his Panasonic cellular phone contained a locking device which prevented him from using it on networks other than AT&T. On March 4,2005, this court granted Lorena Afrolian’s motion to replace Mr. Beckermeyer as class representative and ordered her to file an amended complaint raising personal factual allegations. Ms. Afrolian complied with this court’s order, filed a fifth amended complaint on March 24,2005, and was substituted as class representative.

Defendants filed preliminary objections to Ms. Afrolian’s fifth amended complaint, asserting that her class action claims were barred by the phone’s “Welcome Guide,” given to Ms. Afrolian with her phone after purchase. The “Welcome Guide” required all dissatisfied customers to arbitrate all claims individually, and precluded class action litigation. On July 12,2005, this court dismissed three counts of the complaint, finding that the Honorable C. Darnell Jones had previously decided these issues, and overruled the remainder of the defendants’ objections.

Defendants Panasonic and AT&T Wireless now appeal this court’s July 12,2005 order. Specifically, defendants allege this court abused its discretion in overruling defendant’s first objection which sought to preclude class action litigation by compelling individual arbitration.

THIBODEAU v. COMCAST

On March 19, 2004, plaintiff Philip Thibodeau filed this class action lawsuit against Comcast Corporation, alleging that his cable television provider overcharged its subscribers for cable converter boxes and remote control devices. On April 23, 2004, Mr. Thibodeau’s case was removed to the U.S. District Court for the Eastern District of Pennsylvania. On October 25,2004, his case was remanded to the Court of Common Pleas. On December 17, 2004, defendants filed a motion to dismiss all class allegations and compel individual arbitration. On December 23, 2004, defendants filed preliminary objections to plaintiff’s complaint. In their preliminary objections, defendants argued that Comcast’s customer agreement, which included a mandatory individual arbitration clause and a class action preclusion clause, barred plaintiffs from pursuing a class action lawsuit. On June 10, 2005, this court denied Comcast’s objections to plaintiff’s class action allegations and representative claims, and their motions to compel individual arbitration. Defendants now appeal this court’s order denying their motions to preclude class action litigation by compelling individual arbitration.

AFROLIAN v. AT&T WIRELESS

Plaintiff Lorena Afrolian purchased a Panasonic cell phone which contained a locking device preventing its use on any network other than AT&T. In her complaint, Ms. Afrolian claimed that the defendants failed to disclose the presence of the locking device in the phone’s accompanying documentation, and failed to inform customers that the phone would only work with AT&T’s service, even though the phone is otherwise compatible with other networks. When Ms. Afrolian became dissatisfied with AT&T’s cellular service and wanted to switch cellular phone providers, she could not use the phone on another network because of the locking device.

Ms. Afrolian was first notified of binding, mandatory individual arbitration and the bar of class action litigation in the AT&T Wireless “Welcome Guide.” The “Welcome Guide” is a document not seen before purchase, but is included with the phone’s packaging. On the 24th page of the 25-page document, the pamphlet reads:

THIBODEAU v. COMCAST

Plaintiff Philip Thibodeau has been a Comcast cable television subscriber since 1983. As part of his subscription, Mr. Thibodeau rented two cable converter boxes and two remote controls which he believed were necessary to receive cable television. In his complaint, Mr. Thibodeau alleged that Comcast failed to inform customers that basic-level cable, “Expanded Basic” (also called “standard”) cable, and other non-premium programming could be viewed without renting these converter boxes. Mr. Thibodeau also contended that Comcast failed to inform customers that it was unnecessary to rent remote controls, because third-party remote controls were available for all levels of cable service. Comcast continued to charge Mr. Thibodeau monthly rental fees for the unnecessary converter boxes and remote controls. Mr. Thibodeau alleged that this practice violates the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 PS. §201-1 et seq., and constituted common-law fraud, negligent misrepresentation, and unjust enrichment.

Mr. Thibodeau was originally a customer of AT&T Broadband. In 2002, Comcast acquired AT&T Broadband. After the acquisition, AT&T customers were mailed a new Comcast customer agreement which contained new terms unilaterally imposed by Comcast. The new obtomer agreement mandated individual arbitration and precluded class actions by aggrieved customers. The old AT&T and new Comcast agreements were visually identical in terms of style, font size, type and layout. The only aesthetic difference between them was a small icon on the first page. The image was originally the AT&T logo which was replaced by the Comcast logo.

There were, however, significant substantive differences. On the 8th page of the 10-page document, the Comcast agreement reads:

Business regularly uses binding arbitration as a mechanism for alternate dispute resolution. The prevalence of arbitration is evidenced by the ever-increasing number of private arbitrations conducted annually, in the many excellent firms doing arbitration and other forms of ADR, and in the proliferation of mandatory binding arbitration clauses in consumer and business contracts. In virtually every jurisdiction in the United States, the judiciary encourages arbitration as an alternative to the potential delay, costs and unpredictability of litigation.

Arbitration usually provides a quicker, less expensive, and always a more private alternative to traditional litigation. Arbitration typically involves simplified procedures, a less formal setting, and often more technically experienced and knowledgeable decision-makers. Although arbitration is similar to traditional litigation in that it requires the presentation of proofs, arguments and neutral decision-making, parties can often tailor arbitration processes to the dispute involved. The less formal nature of arbitration proceedings can minimize hostility between parties, thus facilitating ongoing and future business relationships. Arbitration is justifiably favored by the law.

The organized bar officially recognized Alternative Dispute Resolution 30 years ago, when in 1976 the American Bar Association established a Special Committee on Minor Disputes, now called the ABA section of Dispute Resolution. Virtually all state and federal bar associations now have ADR committees. The United States Supreme Court views arbitration as a viable alternative to traditional litigation. In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), the United States Supreme Court held that “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Pennsylvania law also encourages arbitration. As early as 1968, the Pennsylvania Supreme Court stated that “[Pennsylvania] statutes encourage arbitration and with our dockets crowded and in some jurisdictions con[g]ested arbitration is favored by the courts.” Arbitration is considered a “necessary tool for relieving crowded dockets and ensuring the swift and orderly settlement of disputes.”

Pennsylvania law also regulates class action consumer litigation and encourages class action arbitration. In Dickler v. Shearson Lehman Hutton Inc., 408 Pa. Super. 286, 299, 596 A.2d 860, 866 (1991), the Superior Court affirmed Pennsylvania’s long-standing policy favoring classwide arbitration. Defendant Shearson Lehman’s customer agreement was silent as to whether plaintiffs could pursue a class arbitration. Holding that explicit language permitting class action arbitrations was unnecessary, the Superior Court enforced the agreement’s “any controversy” language:

. “Given the three paths down which this litigation can be directed — compelled individual arbitration, class action in a court of law, or compelled classwide arbitration — the last choice best serves the dual interest of respecting and advancing contractually agreed upon arbitration agreements while allowing individuals who believe they have been wronged to have an economically feasible route to get injunctive relief from large institutions employing adhesion contracts.” Id. at 300,596 A.2d at 867.

The Superior Court reasoned that if the agreement sub silentio compelled individual arbitration and precluded class actions, the effect was against public policy because it would force consumers “already straightjacketed by an industry-wide practice of arbitration agreements to fight alleged improprieties at an exorbitant cost. Individual arbitration would be a small deterrent to companies certain that few proceedings will be instituted against them. Because the principles of res judicata and collateral estoppel are not applicable to arbitration proceedings, each plaintiff would be forced to fully litigate his complaint.” Id.

The Superior Court held that in Pennsylvania, consumer class action litigation is of such public importance that public policy considerations allow class action arbitration even if an arbitration agreement does not explicitly so provide. Nonetheless, control of class action litigation is also of such public importance that the proper referral to class arbitration occurs only after a court determines whether certification is proper.

In the cases presently before this court, the agreements explicitly preclude class action arbitration, and the issue presented is whether such preclusion is permissible under Pennsylvania law. Before addressing this question directly, the court must dispose of the claim that federal law preempts any Pennsylvania public policy prohibiting the exclusion of consumer class litigation. The interrelationship and compatibility between federal and Pennsylvania law regarding arbitration was fully explained in Lytle v. Citifinancial Services Inc., 810 A.2d 643, 656-57 (Pa. Super. 2002):

“Pennsylvania law on the enforceability of agreements to arbitrate is in accord with federal law and requires enforcement of arbitration provisions as written, permitting such provisions to be set aside only for generally recognized contract defenses such as duress, illegality, fraud, unconscionability. See Carll v. The Terminix International Company L.P., 793 A.2d 921 (Pa. Super. 2002). Since there is no appreciable difference between Pennsylvania law and the provisions of the FAA on the enforceability of agreements to arbitrate, we will presume, solely for purposes of this appeal, that the contract between the parties is one involving interstate commerce, thus rendering the FAA controlling upon the issue of the enforceability of the arbitration agreement.
“The standard of review which the United States Supreme Court has prescribed for a state court determination of whether there is a valid agreement to arbitrate has been keenly described as directing that a state court
“ ‘must look to the body of federal arbitration law,’ Bhatia [v. Johnston], 818 F.2d 418, 421 (5th Cir. 1987), which recognizes that ‘the question of arbitrability [is to] be addressed with a “healthy regard for the federal policy favoring arbitration,” with doubts regarding the scope of the agreement resolved in favor of arbitration.’ id. (quoting Moses H. Cone Memorial Hospital v. Mercury Construction Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983)). As to the more specific issue of whether there is a valid agreement to arbitrate, ‘ “courts generally . . . should apply ordinary state-law principles that govern the formation of contracts,” ’ Webb v. Investacorp Inc., 89 F.3d 252, 257 (5th Cir. 1996) (quoting First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995)), but in doing so, must give ‘due regard... to the federal policy favoring arbitration,’ id. (quoting Volt Info. Sciences Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1253-54, 103 L.Ed.2d 488 (1989); McKee v. Home Buyers Warranty Corp. II, 45 F.3d 981, 984 (5th Cir. 1995) (‘In construing an arbitration agreement within the scope of the FAA, “as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.’”) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 627, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). At the same time, however, the court may grant relief to a party opposing arbitration where he presents ‘well supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds “for the revocation of any contract,” ’ Mitsubishi Motors, 473 U.S. at 627, 105 S.Ct. 3346 (quoting 9 U.S.C. §2); see also, Bhatia, 818 F.2d at 421 (court should at all times ‘remain keenly attuned to well-grounded claims that “the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’ ” ’ (quoting 9 U.S.C. §2); Rhode v. E&T Investments Inc., 6 F. Supp.2d 1322, 1326 (M.D. Ala. 1998) (‘[Section] 2 “gives states . . . methods for protecting consumers against unfair pressure to agree to a contract with an unwarranted arbitration provision” both in equity and under principles of contract law.’ (quoting Allied-Bruce Terminix v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995))).”

The Lytle opinion continued, quoting Justice Stephen G. Breyer who was writing for the majority of the U.S. Supreme Court in Allied-Bruce Terminix Companies Inc. v. Dobson, 513 U.S. 265, 281, 115 S.Ct. 834, 843, 130 L.Ed.2d 753, 769 (1995):

“Section 2 [of the FAA] gives states a method for protecting consumers against unfair pressure to agree to a contract with an unwanted arbitration provision. States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause upon such grounds as exist at law or in equity for the revocation of any contract 9 U.S.C. §2. What states may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit) but not fair enough to enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of policy would place arbitration clauses on an unequal ‘footing,’ directly contrary to the Act’s language and Congress’ intent.”

The Lytle court concluded:

“Thus, appellants may avoid being compelled to arbitrate their claims if they produce evidence of such ‘grounds as exist at law or in equity for the revocation of any contract.’ 9 U.S.C. §2. ‘Generally applicable contract defenses, such as fraud, duress or unconscionability, may be applied to invalidate arbitration agreements without contravening’ the enforcement provisions of the Federal Arbitration Act. Doctor’s Associates Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 1656, 134 L.Ed.2d 902, 909 (1996).”

Accordingly, this court has analyzed the Comcast and AT&T agreements in light of common-law contract defenses including unconscionability.

Contracts of adhesion are standardized form contracts presented to consumers without negotiation or any option for modification. In Robson v. E.M.C. Insurance, 785 A.2d 507, 510 (Pa. Super. 2001), the Superior Court defined a contract of adhesion as one “prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms.” The Comcast and AT&T customer agreements received by the plaintiffs and all other class members are clearly contracts of adhesion. They were sent without any opportunity for customers to negotiate and even without any requirement of assent to the mandated individual arbitration and preclusion of class action litigation.

There is nothing per se wrong with a contract of adhesion. Not every contract of adhesion contains unconscionable provisions. A contract of adhesion is only unconscionable if it unreasonably favors the drafter. In Jim Dan Inc. v. O.M. Scott & Sons Co., 735 F. Supp. 1196, 1200, the United States District Court for the Eastern District of Pennsylvania interpreted Pennsylvania state law, holding:

“In determining whether a clause is unconscionable, the court should consider whether, in light of the general commercial background and the commercial needs of a particular trade, the clause is so one-sided that it is unconscionable under the circumstances.”

In Zak v. Prudential Property and Insurance Co., 713 A.2d 681 (Pa. Super 1998), the Superior Court found that provisions of an insurance policy, while facially equal, were factually “completely unconscionable.” The policy required that any arbitration award under $ 15,000 was binding on the parties, but either party was entitled to a trial de novo if an award was greater than $15,000. Although the provision was facially equal because either party could appeal a large award, the clause was unconscionable because the effect of the clause was clearly unequal:

“[The policy] allows the insurance company the unfettered right to a trial whenever an award is made in favor of a claimant or insured while a losing claimant or insured is bound by the award. The clause so clearly favors the insurer over the claimant or insured that it is repugnant to notions of due process, equal protection, justice, and fair play.” Id. at 684.

The Superior Court found the clause void because unconscionable. The Zak decision instructs that even language which appears to be facially neutral can nonetheless be unconscionable if its effect is one-sided.

In Lytle v. Citifinancial Services, plaintiffs were required to pay unearned finance charges and prepayment penalties when they refinanced their mortgage. The refinancing agreement had a mandatory arbitration clause requiring all controversies over $15,000 to be arbitrated individually, and precluded class litigation or arbitration. On appeal, plaintiffs who had lost below, argued that the arbitration agreement was unconscionable, against public policy, and unenforceable because it effectively and factually reserved the right of access to the courts to the mortgagee alone. While remanding the case to the lower court for further factual findings of costs associated with individual arbitration, the Superior Court held mandatory individual arbitration unconscionable when it actually prohibits consumer claims. The court said, “the reservation by [the defendant] of access to the courts for itself to the exclusion of the consumer creates a presumption of unconscionability, which in the absence of ‘business realities’ that compel inclusion of such a provision in an arbitration provision, renders the arbitration provision unconscionable and unenforceable under Pennsylvania law.” Lytle, 810 A.2d at 665.

The Lytle court held that if the costs associated with arbitrating a single claim effectively deny consumer redress, prohibiting class action litigation or class action arbitration is unconscionable.

Two years later, in McNulty v. H&R Block, 843 A.2d 1267, 1274 (Pa. Super. 2004), the Superior Court reaffirmed this principle, holding that it was unconscionable to require individual arbitration and preclude class action litigation if the costs of arbitration effectively prevented an individual from pursuing a claim. The court said:

“While there may be a select few who are so incensed by the notion of the e-filing fee they would spend significant time and $50 for the possibility of a $30 award, this is a situation where the costs of arbitration, minimal though they may seem, work to preclude the individual presentation of claims.”

The court held:

“As applied to the facts of this case, the enforcement of the arbitration provision would work to deny the allegedly injured parties access to justice and is therefore unconscionable.” Id.

The high cost of arbitration compared with the minimal potential value of individual damages denied every plaintiff a meaningful remedy. If class action litigation is the only effective remedy, a contract of adhesion cannot preclude such litigation.

Pennsylvania is not the only state which has addressed the preclusion of class action litigation in consumer contracts of adhesion. The California Court of Appeal recently ruled on the identical issue presented in these cases, finding that forced individual arbitration by precluding class actions is so one-sided as to be “blindingly obvious” and violated “fundamental notions of fairness.” The plaintiff in Szetela v. Discover Bank, 97 Cal. App. 4th 1094, 118 Cal. Rptr. 2d. 862 (2002), challenged the mandatory individual arbitration and class action preclusion provisions of his customer agreement. The court found that because the effect of enforcement agreement was corporate immunity, preclusion of class action litigation was unconscionable.

“This provision is clearly meant to prevent customers, such as Mr. Szetela and those he seeks to represent, from seeking redress for relatively small amounts of money, such as the $29 sought by Mr. Szetela. Fully aware that few customers will go to the time and trouble of suing in small claims court, [the defendant] has instead sought to create for itself virtual immunity from class or representative actions despite their potential merit, while suffering no similar detriment to its own rights.”

The California court continued:

“The clause is not only harsh and unfair to Discover customers who might be owed a relatively small sum of money, but also serves as a disincentive for Discover to avoid the type of conduct that might lead to class action litigation in the first place. By imposing this clause on its customers, Discover has essentially granted itself a license to push the boundaries of good business practices to their furthest limits, fully aware that relatively few, if any, customers will seek legal remedies, and that remedies obtained will only pertain to that single customer without collateral estoppel effect. The potential for millions of customers to be overcharged small amounts without an effective method of redress cannot be ignored.”

Class actions were created in response to public need. As early as 1854, the United States Supreme Court recognized that the representative nature of class action litigation serves a unique function in our judicial system. In Smith v. Swormstedt, 16 How. 288, 303 (1854), the court wrote:

“Where the parties interested in the suit are numerous, their rights and liabilities are so subject to change and fluctuation by death or otherwise, that it would not be possible, without very great inconvenience, to make all of them parties, and would oftentimes prevent the prosecution of the suit to a hearing. For convenience, therefore, and to prevent a failure of justice, a court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the court.”

Class actions are still of great public importance. Class action lawsuits are and remain the essential vehicle by which consumers may vindicate their lawful rights. The average consumer, having limited financial resources and time, cannot individually present minor claims in court or in an arbitration. Our justice system resolves this inherent inequality by creating the procedural device which allows consumers to join together and seek redress for claims which would otherwise be impossible to pursue. Both the Federal and Pennsylvania Rules of Civil Procedure delineate specific rules for publicly selected trial court judges to actively manage class action lawsuits through the public judicial system. Accordingly, under Pennsylvania law, the trial court judge remains responsible for all of the key procedural decisions that ensure fairness for named and unnamed plaintiffs in the class, even in a class action removed to class arbitration.

Federal Rule of Civil Procedure 23(g) and Pennsylvania Rule 1709 mandate that trial court judges ensure that the rights of all class members are adequately represented by counsel. Federal Rule 23(c)(2) and Pennsylvania Rule 1712 mandate that trial court judges approve class notification to ensure that absent plaintiffs receive adequate notice of class actions. Federal Rule 23(c)(2) and Pennsylvania Rule 1711 mandate that trial court judges ensure that class members who elect not to participate in the class action understand their rights. Federal Rule 23(e) and Pennsylvania Rule 1714 mandate that trial court judges approve of the terms of any settlement agreement. Federal Rule 23(e) and Pennsylvania Rule 1714 mandate that trial court approval is required before discontinuance. Lytle v. Citifinancial Services mandates that state court judges determine the procedural setting within which trial court judges send cases to arbitration.

A fundamental principle of justice is “everyone should have a day in court.” The Pennsylvania Constitution, Section 11, proclaims: “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law....” Most consumer complaints involve miniscule claims. No individual consumer possibly could or ever will individually litigate most consumer claims. The cost of lawyers, fees and expert witnesses makes individual lawsuit or arbitration so completely impractical as to be fairly and properly characterized as impossible.

It is only the class action vehicle which makes small consumer litigation possible. Consumers joining together as a class pool their resources, share the costs and efforts of litigation and make redress possible. Should the law require consumers to litigate or arbitrate individually, defendant corporations are effectively immunized from redress of grievances.

Both the Comcast and AT&T customer agreements attempt to preclude all class action litigation in court or in arbitration, and attempt to mandate that all customers arbitrate all claims as individuals. The Comcast and AT&T customer agreements are contracts of adhesion unilaterally imposed on all consumers. Consumers such as Ms. Afrolian and Mr. Thibodeau are subject to every term without choice. Ms. Afrolian was forced to accept every word of all 25 pages of the mass-delivered AT&T customer agreement or her cellular phone was useless. Mr. Thibodeau was forced to accept every word of all 10 pages of the mass-delivered Comcast customer agreement or have no cable television service whatsoever, since Comcast holds a government-authorized geographic monopoly.

Ms. Afrolian, Mr. Thibodeau and their class members are claiming minimal damages. Ms. Afrolian and each of the class members allege the cellular phones they purchased for $50 are unusable. Mr. Thibodeau and each of his class members allege they were unlawfully overcharged $9.60 per month. Everyone knows that these claims will never be arbitrated on an individual basis, either by the named plaintiffs or by any other of the millions of class members they represent. No individual will expend the time, fees, costs and/or other expenses necessary for individual litigation or individual arbitration for this small potential recovery. If the mandatory individual arbitration and preclusion of class action provisions are valid, Comcast and AT&T are immunized from the challenges brought by Ms. Afrolian and Mr. Thibodeau, brought by any class member or effectively from any minor consumer claims. It is clearly contrary to public policy to immunize large corporations from liability by allowing them to preclude all class action litigation or in arbitration.

The preclusion of classwide litigation or classwide arbitration of consumer claims, imposed in a contract of adhesion, is unconscionable and unenforceable. For the reasons set forth above, the decision of the court should be affirmed.

      . The relevant sections of the AT&T Wireless customer agreement are reproduced precisely as attached to defendant’s preliminary objections of defendant AT&T Wireless Services Inc. to plaintiff’s fifth amended class action complaint, August term 2002, no. 0469.

      . The relevant sections of the Comcast customer agreement are reproduced precisely as attached to defendant’s petition to compel arbitration in Thibodeau v. Comcast, March term 2004, no. 4526.

      . Murray S. Levin, The Role of Substantive Law in Business Arbitration and Importance of Volition, 35 Am. Bus. L. J. 105, 105 (fall 1997).

      . The ABA section of Dispute Resolution can be found on the internet at http://www.abanet.org/dispute/home.html.

      . Mendelson v. Shrager, 432 Pa. 383, 385, 248 A.2d 234, 235 (1968).

      . Langston v. National Media Corp., 420 Pa. Super. 611, 616, 617 A.2d 354, 356 (1992).

      . Federal court decisions have held contra, precluding class action arbitration unless specifically provided in the agreement. See Champ v. Siegel Trading Co. Inc., 55 F.3d 269 (7th Cir. 1995); Gray v. Conseco Inc., 2001 U.S. Dist. Lexis 21696 (D. Cal. 2001); Bischoff v. DirecTV, 180 F. Supp.2d at 1108.

      . 810 A.2d 643 (Pa. Super. 2002).


source: Caselaw Access Project

author: PIETRAGALLO, Panel Chair,

license: Public Domain

text:
    Office of Disciplinary Counsel v. McKeon

      Disciplinary Board Docket nos. 23 D.B. 2005 and 122 D.B. 2005.
    November 8, 2005—
   PIETRAGALLO, Panel Chair,

RECOMMENDATION OF THREE-MEMBER PANEL OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

The three-member panel of the Disciplinary Board of the Supreme Court of Pennsylvania, consisting of Board Members William A. Pietragallo, Donald E. Wright Jr., and Francis X. O’Connor, has reviewed the joint petition in support of discipline on consent filed in the above-captioned matter on October 7, 2005.

The panel approves the petition consenting to a three-month suspension, followed by two years probation with a sobriety monitor subject to the conditions set forth in the joint petition and recommends to the Supreme Court of Pennsylvania that the attached joint petition be granted.

The panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the petition.

JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT UNDER Pa.R.D.E. 215(d)

Petitioner, Office of Disciplinary Counsel, by Paul J. Killion, Chief Disciplinary Counsel, and Harriet R. Brumberg, Disciplinary Counsel, and by John R. Carroll, Esquire, Counsel for respondent, and John Harold McKeon Jr., respondent, file this joint petition in support of discipline on consent uader Pennsylvania Rule of Disciplinary Enforcement 215(d), and respectfully represent that:

I. Background

(1) Respondent, John Harold McKeon Jr., was bom on August 29,1949, and was admitted to practice law in the Commonwealth on October 16, 1979.

(2) Respondent had maintained an office for the practice of law at the law firm of Conrad, O’Brien, 1515 Market Street, 16th Floor, Philadelphia, PA 19102.

(3) On March 29, 2005, petitioner filed a petition for discipline against respondent, which was docketed at no. 23 D.B. 2005; on May 12,2005, respondent filed an answer and new matter. On June 22, 2005, a prehearing conference was held in no. 23 D.B. 2005; on August 5, 2005, the Disciplinaiy Board entered an order continuing the case to enable the parties to consolidate two related disciplinary matters.

(4) By letter dated July 5, 2005, petitioner forwarded to the Pennsylvania Supreme Court a certificate of conviction that showed that respondent was convicted of possession of a controlled substance (cocaine) in New Jersey. By order dated August 10, 2005, the Supreme Court referred the matter to the Disciplinary Board pursuant to PaJRJD.E. 214(f)(1). On August 11, 2005, the Disciplinary Board referred the matter, which was docketed at no. 122 D.B. 2005, to petitioner for handling pursuant to PaJRJD.E. 214 and D.Bd. Rules §91.35.

II. Factual Admissions and Violations of Rules ofProfessional Conduct

(5) Respondent specifically admits to the truth of the factual allegations and conclusions of law contained in paragraphs 6 through 18.

(6) On December 31, 2003, respondent was arrested by Philadelphia Police and charged with driving under the influence of a controlled substance, 75 Pa.C.S. §3731(a)(2) (repealed), a misdemeanor of the second degree. Commonwealth v. McKeon, MC no. 3384, December term, 2003 (Philadelphia County).

(7) On September 22,2004, respondent pled not guilty to the charge of driving under the influence. After the receipt of evidence in a stipulated non-jury trial, the Honorable William A. Meehan found respondent guilty as charged.

(8) On September 22,2004, Judge Meehan sentenced respondent to six months of reporting probation, concurrent with a term of imprisonment of 3 0 days flat, with credit for time served in an executive addictive disease program from February 4,2004, through May 12,2004. Respondent was also ordered to attend Highway Safety School; submit to random drug testing; complete a program with Advanced Recovery Center; and pay various fines, court costs and fees.

(9) The crime of driving under the influence of a controlled substance (first or second offense) is punishable by imprisonment for up to two years.

(10) The crime of which respondent was convicted constitutes a “serious crime,” as defined by Pa.R.D.E. 214(i).

(11) Respondent’s conviction constitutes a per se ground for discipline under Pa.R.D.E. 203(b)(1).

(12) By order dated March 4,2005, the Supreme Court of Pennsylvania referred respondent’s criminal conviction matter to the Disciplinary Board pursuant to Pa.R.D.E. 214(f)(1).

(13) As a result of being convicted of 75 Pa.C.S. §3731(a)(2) (repealed), respondent has violated Pa.R.D.E. 203(b)(1), which provides that conviction of a crime, which under Enforcement Rule 214 (relating to attorneys convicted of crimes) may result in suspension, shall be grounds for discipline.

(14) On July 15,2004, respondent was arrested in New Jersey and charged with possessing a controlled substance, namely cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-10(a)(l).

(15) On May 16,2005, the Honorable John A. Almeida of the New Jersey Superior Court found respondent guilty as charged and sentenced respondent to one year probation. In addition, respondent was ordered to pay the following fees on or before September 1,2005: $50 to Violent Crimes Compensation Board (VCCB); $75 to Safe Neighborhood Services Fund (SAFE); $30 to Law Enforcement Officers Training and Equipment Fund (LETF); $3 Supervision Fee; $2 Transaction Fee; $1,000 to Drug Enforcement and Demand Reduction (DEDR); and $50 Lab Fee. Furthermore, Judge Almeida suspended Mr. McKeon’s driver’s license for six months, ordered him to continue with the Drug Treatment Program, and ordered him to provide a DNA sample and pay the cost for testing the provided sample.

(16) The crime of which Mr. McKeon was convicted is punishable by imprisonment for up to five years. N.J.S.A. 2C:43-6(a)(3). This is a “serious crime” as defined by Pa.R.D.E. 214(i).

(17) Respondent’s conviction constitutes a per se ground for discipline under Pa.R.D.E. 203(b)(1).

(18) As a result of being convicted ofN.J.S.A. 2C:43-6(a)(3), respondent has violated Pa.R.D.E. 203(b)(1), which provides that conviction of a crime, which under Enforcement Rule 214 (relating to attorneys convicted of crimes) may result in suspension, shall be grounds for discipline.

JOINT RECOMMENDATION FOR DISCIPLINE

(19) Petitioner and respondent j ointly recommend that the appropriate discipline for respondent’s admitted misconduct is a three-month suspension from the practice of law to be followed by two years of probation with a sobriety monitor, with conditions as set forth in the attached, proposed order (and any other conditions the Disciplinary Board deems appropriate).

(20) Respondent hereby consents to the discipline being imposed by the Supreme Court of Pennsylvania. Attached to this petition is respondent’s executed affidavit required by Pa.R.D.E. 215(d), stating that he consents to the recommended discipline and the mandatory acknowledgements contained in Pa.R.D.E. 215(d)(1) through (4).

(21) Petitioner and respondent respectfully submit that there are several mitigating circumstances:

(a) Respondent has admitted to engaging in misconduct and violating the Pennsylvania Rules of Disciplinary Enforcement;

(b) Respondent has cooperated with petitioner, as evidenced by respondent’s admissions herein and consent to discipline; and

(c) Respondent has no prior history of discipline.

(22) Respondent is aware that if he is suspended from the practice of law in Pennsylvania, then he may be subject to reciprocal discipline in New Jersey where he currently resides and is licensed to practice law.

(23) Respondent is aware that if he violates his probation, then he may be subject to additional discipline pursuant to D.Bd. Rules §89.292.

(24) A suspension of three months to be followed by two years of probation with a sobriety monitor is within the range of discipline imposed in similar Pennsylvania cases involving attorneys who have been convicted of driving under the influence or convicted of possession of cocaine. Compare Office of Disciplinary Counsel v. Anonymous Attorney, No. 105 D.B. 2002 (D.Bd.Rpt. 11/19/03) (attorney received private reprimand and probation for driving under the influence conviction) with In the Matter of Michael G. Paul, 572 Pa. 421, 817 A.2d 446 (2003) (attorney received three-month reciprocal suspension in Pennsylvania following a three-month suspension in New Jersey for a cocaine possession conviction) and Office of Disciplinary Counsel v. Glass No. 5 D.B. 95, D.Bd. Rpt. 4/1/97 (S.Ct. Order 5/21/97) (attorney convicted of procuring cocaine for his personal cocaine supplier and keeping some cocaine for his personal use, was suspended for two-and-one-half years).

Wherefore, petitioner and respondent respectfully request that:

(a) Pursuant to Pa.R.D.E. 215(e) and 215(g), the three-member panel of the Disciplinary Board review and approve the joint petition in support of discipline on consent and file its recommendation with the Supreme Court of Pennsylvania recommending that the Supreme Court enter an order:

(1) suspending respondent from the practice of law for a period of three months, to be followed by two years of probation with a sobriety monitor, with conditions as set forth in the attached proposed order (and any other conditions the Disciplinary Board deems appropriate); and

(2) directing respondent to comply with all provisions of Pa.R.D.E. 217.

(b) Pursuant to Pa.R.D.E. 215(i), the three-member panel of the Disciplinary Board order respondent to pay the necessary expenses incurred in the investigation and prosecution of this matter as a condition to the grant of the petition, and that all expenses be paid by respondent before the imposition of discipline under Pa.R.D.E. 215(g).

AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.

Respondent, John Harold McKeon Jr., hereby states that he consents to the imposition of a suspension from the practice of law for a period of three months to be followed by two years of probation with a sobriety monitor and conditions, as jointly recommended by petitioner and respondent in the joint petition in support of discipline on consent and proposed order, and further states that:

(1) His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress; he is fully aware of the implications of submitting the consent; and he has consulted with counsel in connection with the decision to consent to discipline;

(2) He is aware that there are presently pending two proceedings involving allegations that he is guilty of misconduct as set forth in the joint petition;

(3) He acknowledges that the material facts set forth in the joint petition are true; and

(4) He knows that if the charges pending against him continue to be prosecuted in the pending proceedings he could not successfully defend against them.

VERIFICATION

The statements contained in the foregoing joint petition in support of discipline on consent under Rule 215(d), Pa.R.D.E. are true and correct to the best of our knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.

ORDER

And now, January 5,2006, upon consideration of the recommendation of the three-member panel of the Disciplinary Board dated November 8,2005, the joint petition in support of discipline on consent is hereby granted in accordance with Rule 215(g), Pa.R.D.E., and it is ordered that John Harold McKeon Jr. is suspended on consent from the bar of this Commonwealth for a period of three months, to be followed by probation for a period of two years, subject to the following conditions:

(1) Respondent shall abstain from using alcohol or any other mind-altering chemical;

(2) Respondent shall regularly attend Alcoholics Anonymous meetings on a weekly basis and provide written verification of attendance to the board on a board-approved form;

(3) Respondent shall obtain a sponsor in Alcoholics Anonymous and maintain weekly contact with that sponsor;

(4) A sobriety monitor shall be appointed in accordance with Disciplinary Board Rule §89.293(c);

(5) Respondent shall furnish his sobriety monitor with his Alcoholics Anonymous sponsor’s name, address and telephone number;

(6) Respondent shall undergo any counseling or treatment prescribed by a physician or alcohol counselor;

(7) Respondent shall file with the Secretary of the Board quarterly written reports;

(8) With the sobriety monitor, respondent shall:

(a) meet at least twice a month;

(b) maintain weekly telephone contact;

(c) provide the necessary properly executed written authorizations to verify his compliance with the required substance abuse treatment; and

(d)cooperate folly.

(9) The appointed sobriety monitor shall:

(a) monitor respondent’s compliance with the terms and conditions of the order imposing probation;

(b) assist respondent in arranging any necessary professional or substance abuse treatment;

(c) meet with respondent at least twice a month, and maintain weekly telephone contact with respondent;

(d) maintain direct monthly contact with the Alcoholics Anonymous chapter attended by the respondent;

(e) file with the Secretary of the Board quarterly written reports; and

(f) immediately report to the Secretary of the Board any violations by the respondent of the terms and conditions of the probation.

Respondent shall comply with all the provisions of Rule 217, Pa.R.D.E.

Former Justice Nigro did not participate in this matter.


author: WRIGHT JR., Member,

text:
    Office of Disciplinary Counsel v. Goldman

      Disciplinary Board Docket no. 157 D.B. 2003.
    May 20, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

WRIGHT JR., 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 October 14, 2003, Office of Disciplinary Counsel filed a petition for discipline against Howard Goldman, respondent. The petition contained four separate charges of client misconduct. Respondent filed an answer to petition for discipline on November 14, 2003.

A disciplinary hearing was held on April 14,2004 before Hearing Committee 1.18 comprised of Chair Steven Dickstein, Esquire, and Members Michael R. Stiles, Esquire, and Andrew J. Trevalise, Esquire. Respondent was represented by James C. Schwartzman, Esquire.

Following the submission of briefs by the parties, the Hearing Committee filed a report on January 21, 2005, finding that respondent violated the Rules of Professional Conduct as contained in the petition for discipline, and recommending that respondent be suspended for one year with a practice monitor.

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) 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 of Disciplinary Enforcement.

(2) Respondent was admitted to practice law in the Commonwealth in 1983. Respondent maintains an office for the practice of law at 42 South 15th Street, Suite 1313, Philadelphia, PA 19102. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent has no prior history of discipline.

Charge I: The Lutz Matter

A. Fee Agreement

(4) In February 1999, Philip Lutz retained respondent to represent him in custody and support matters against his ex-wife, Nevin Fahmii.

(5) Respondent had not previously represented Mr. Lutz.

(6) Respondent initially told Mr. Lutz that his fee for representation in both matters would be $7,500 and that respondent would start on Mr. Lutz’ case immediately.

(7) Respondent received a total of $7,506 from Mr. Lutz to represent him in his child custody and support matters.

(8) Respondent failed to advise Mr. Lutz of the basis or rate of his fee, in writing, before or within a reasonable time after commencing the representation or provide a timetable in which payment had to be made in order for services to be provided. Instead, respondent orally advised Mr. Lutz that this fee was a flat rate, and he would not incur any additional fees.

B. Child Custody Matter

(9) At the time Mr. Lutz retained respondent, Mr. Lutz:

(a) informed respondent that Ms. Fahmii was engaged in conduct which was harmful to their child, including keeping their son home from school;

(b) told respondent that he wanted him to move as quickly as possible to pursue full custody; and

(c) provided documents to respondent, including his original divorce decree.

(10) Respondent advised Mr. Lutz that, in a case of this nature, he would have to file a request for a protracted hearing. Respondent assured Mr. Lutz that he would move promptly to pursue the custody action.

(11) Mr. Lutz informed respondent that Ms. Fahmii had become pregnant, and that he was concerned that if the custody matter were not resolved promptly, then there would be a sibling who would be considered to the detriment of Mr. Lutz’ claims. Respondent told Mr. Lutz not to worry about this issue.

(12) Respondent did not file Mr. Lutz’ custody complaint, Lutz v. Fahmii, no. OC-99-01598, Court of Common Pleas, Family Court Division, until July 2, 1999.

(13) By order dated July 8, 1999, the Flonorable Paul P. Panepinto scheduled Mr. Lutz’ custody matter for a conference/hearing before Family Court Division Master Eleanor Flannery, Esquire, on August 30, 1999. Respondent was served with a copy of the order.

(14) On July 22, 1999, in a telephone conversation with Saul Levit, Esquire, counsel for Ms. Fahmii, respondent stated that the custody matter was before a master and that he would check on the procedure to bring the case before a judge as Mr. Lutz was requesting primary custody.

(15) By letter dated August 25,1999, to Ms. Flannery, respondent:

(a) requested a new listing of the custody matter because he would be out of town on the scheduled date, August 30, 1999; and

(b) stated that he believed the matter would ultimately result in a custody trial before a Family Court Judge.

(16) By letter to Ms. Flannery dated October 15,1999, respondent:

(a) stated that the custody matter had been continued on August 30, 1999, pursuant to a joint request;

(b) stated that the reason for the August 30, 1999 continuance was because the parties were attempting an amicable resolution of a temporary visitation schedule; and

(c) requested that the master’s hearing be rescheduled to preserve Mr. Lutz’ rights.

(17) On December 6, 1999, Judge Panepinto entered an order, based on a temporary agreement between the parties, awarding Mr. Lutz partial temporary custody of his son. Respondent received a copy of the order.

(18) By letter dated March 31, 2000, to the Family Court Division, Ms. Fahmii requested a postponement of the custody hearing scheduled for April 6, 2000, because she was ill. By letter to the Honorable Edward B. Rosenberg, dated April 3, 2000, respondent noted no objection to Ms. Fahmii’s request for a continuance. On April 6, 2000, Judge Rosenberg granted Ms. Fahmii’s continuance to the next available date. By order dated May 1,2000, Judge Rosenberg rescheduled the custody hearing to June 23, 2000.

(19) By letter to Judge Rosenberg, dated June 7,2000, respondent requested a protracted hearing in the custody matter.

(20) Judge Rosenberg’s office informed respondent that if his client needed a protracted hearing, then respondent must file a formal petition with the court.

(21) By letter to Judge Rosenberg, dated June 12,2000, respondent:

(a) confirmed that he received Judge Rosenberg’s instructions to file a formal petition if he wanted a protracted hearing; and

(b) requested that the custody matter listed for June 23, 2000, be rescheduled pending the determination of that petition;

(c) by order dated June 23, 2000, Judge Rosenberg granted respondent’s request for a continuance based on respondent’s statement that “he will file a formal petition for a protracted hearing.” (Stip. ¶59.) Respondent received the order.

(22) Respondent failed to file a petition for a protracted hearing.

(23) Respondent failed to advise Mr. Lutz that he had not filed the required petition for a protracted hearing.

(24) Respondent told Mr. Lutz that respondent was working on the petition for the protracted hearing when, in fact, he was not working on the petition.

(25) By letter dated August 23, 2000, Mr. Lutz wrote to respondent requesting an emergency order to compel Ms. Fahmii to honor their agreement with respect to education of their son. Respondent advised Mr. Lutz that attending school was not an emergency and that respondent should let the court process take its course.

(26) Thereafter, and continuing until September 2001, when Mr. Lutz discharged respondent, respondent failed to file the petition for a protracted hearing.

(27) As a result of respondent’s misconduct, Mr. Lutz lost the opportunity to gain primary custody of his son.

C. Child Support Matter

(28) On October 27, 1999, Ms. Fahmii filed a complaint for child support against Mr. Lutz. Fahmii v. Lutz, no. 99-27734 (Philadelphia County).

(29) Trial on Ms. Fahmii’s complaint for child support was scheduled for February 23, 2000.

(30) By letter to Tereas [sic] Wines, Hearing Office, Family Court, dated February 18, 2000, respondent requested a continuance because he was attached for trial on another matter.

(31) By interim order dated May 5, 2000, Judge Panepinto ordered Mr. Lutz to pay $313 bi-weekly for child support.

(32) On June 27, 2000, a support hearing was held before Bernadette Valderrama, Esquire, master in custody/support.

(a) Mr. Lutz offered evidence that he had been paying $963 per month in support and educational expenses between October 27, 1999, and May 4,2000; and

(b) The parties agreed that the effective date of the support order would be May 4, 2000.

(33) In a report dated August 21,2000, Ms. Valderrama recommended that Mr. Lutz pay $316.14 bi-weekly for the support of his son, retroactive to October 27, 1999.

(34) In an undated letter to respondent, Mr. Lutz advised respondent of his objections to the recommended order, including the failure to credit him with $963 per month that he had paid directly to Ms. Fahmii during part of the retroactive period.

(35) On August 21, 2000, Ms. Valderrama and Judge Panepinto signed a proposed order of support that:

(a) ordered Mr. Lutz to pay $316.14 bi-weekly for support of his son, effective October 27, 1999;

(b) recommended that Mr. Lutz pay $ 10 bi-weekly on arrears;

(c) did not credit Mr. Lutz with the direct payments he had made to Ms. Fahmii; and

(d) instructed the parties to file exceptions by September 1, 2000, or the proposed order would become final.

(36) Ms. Ana Burgos of the clerk’s office sent respondent instructions for filing exceptions in support cases. The instructions stated, in pertinent part, that any party who intends to rely on notes of testimony at the hearing on exceptions may order the notes “in writing” from the clerk of court or by coming “in person ” to the clerk of court’s office, (emphasis in original)

(37) On August 30,2000, respondent filed exceptions to the master’s report, in which respondent argued that the master erred in:

(a) determining October 27,1999, as the effective date of the support order because it was agreed the effective date of support would be May 4,2000, and the master’s determination resulted in Mr. Lutz not being credited with $963 a month that he had paid from October through May;

(b) concluding Ms. Fahmii’s potential income was only $26,000; and

(c) ordering a wage attachment, because Mr. Lutz had made timely payments.

(38) Respondent failed to order the notes of testimony of the June 27,2000 support hearing either in writing or in person, as instructed. The notes of testimony were necessary to establish the grounds for respondent’s exceptions to the master’s report.

(39) When Mr. Lutz inquired about the progress of the appeal from the master’s report, respondent advised Mr. Lutz that he was having trouble securing the notes of testimony.

(40) Mr. Lutz received a Notice of intent to suspend, nonrenew, or deny driver’s license for failure to pay support, dated October 6, 2000, from the Enforcement Division of Family Court.

(a) The notice provided that an order to suspend, nonrenew, or deny Mr. Lutz driver’s license would be issued to the Pennsylvania Department of Transportation within 30 days.

(b) The notice provided that Mr. Lutz could contest the adverse action on his driver’s license on or before November 5, 2000.

(41) Mr. Lutz received a notice of credit bureau reporting dated October 6, 2000, from the Enforcement Division of Family Court.

(a) The notice stated that the court would report Mr. Lutz’ delinquent child support payments to consumer credit bureaus.

(b)The notice provided that Mr. Lutz had 20 days to contest the accuracy of the arrearage information.

(42) By order dated October 12,2000, the Honorable Joyce Mozenter:

(a) denied exceptions filed by Ms. Fahmii;

(b) denied exceptions filed by Mr. Lutz because no transcript was provided to establish a record of the grounds for the exceptions; and

(c) made final the interim order of June 27, 2000.

(43) By letter dated October 16,2000, Mr. Lutz wrote to respondent enclosing the Notice of Credit Bureau reporting and Notice of intent to suspend, nonrenew, or deny driver’s license, and requesting respondent:

(a) to contest, by October 26,2000, the Notice of Credit Bureau reporting regarding the accuracy of the arrears;

(b) to contest, by November 5, 2000, the Notice of intent to suspend, nonrenew, or deny driver’s license;

(c) to seek modification of the interim custody arrangements; and

(d) to petition Ms. Valderrama to modify her order.

(44) By letter dated October 24, 2000, respondent wrote to the Tactical Enforcement Unit of Family Court and requested that they delay action on both of the notices received by Mr. Lutz until after an October 31,2000 hearing.

(45) By letter dated October 31, 2000, the Domestic Relations Division notified Mr. Lutz that his child support arrearage would be subject to collection by the Federal Tax Refund Offset Program and/or administrative offset. The notice provided that the determination could be contested within 30 days of the date of the notice.

(46) By notice dated November 10,2000, the Enforcement Division of Family Court notified Mr. Lutz that they would report his child support arrearage to consumer credit bureaus unless he contested the accuracy of the information within 20 days.

(47) Mr. Lutz brought the November 10, 2000 notice to respondent’s attention.

(48) By letter to Judge Zaleski, dated April 16, 2001, respondent:

(a) stated that he was contesting Mr. Lutz’ alleged overdue child support;

(b) advised that he would be filing a petition to determine the status of Mr. Lutz’ alleged overdue child support;

(c) requested the matter not be referred to the State Tax Refund Offset Program (STROP) Unit; and

(d) requested an administrative review with the Domestic Relations Section.

(49) Respondent failed to file a petition on behalf of Mr. Lutz to determine the status of his child support payments. Respondent testified, however, that he personally visited the Family Court, where a Mr. Pandolfi placed a hold on further action in his computer.

(50) By notice of decision dated May 1, 2001, the Domestic Relations Section notified Mr. Lutz of the dismissal of his objections to the proposed action to submit his federal tax refund for interception for payment of support arrearages in the amount of $4,623.

(51) By letter dated June 15, 2001, the Domestic Relations Division notified Mr. Lutz that his income tax refund, in the amount of $4,031, had been intercepted to be applied to the arrears owing on his child support.

(52) By letter dated September 4, 2001, Mr. Lutz advised respondent that he retained Paul Pollack, Esquire, to handle his child custody and support matters.

(53) By letter to respondent, dated September 7,2001, Mr. Pollack:

(a) informed respondent that he had been retained to represent Mr. Lutz in his custody and support matters; and

(b) requested respondent to forward Mr. Lutz’ file to him.

(54) By certified letter from Mr. Lutz to respondent, dated February 4, 2002, Mr. Lutz:

(a) advised respondent that hearings were scheduled in Mr. Lutz’ support and custody matters, and one issue which had arisen was the delay in proceeding in these matters; and

(b) requested that respondent provide, by the end of February 2002, a synopsis of his efforts in the custody and child support matters.

(55) By certified letter to respondent dated February 19,2002, received by respondent on February 20,2003, Mr. Lutz:

(a) stated that he retained respondent in 1999 for a fee of $7,500;

(b) complained that respondent never filed for a custody hearing and failed to provide legal protection in the support matter;

(c) requested the return of the fee within 30 days; and

(d) requested an accounting for any portion of the fee respondent claims he earned.

(56) Respondent did not respond to Mr. Lutz’ letters.

Charge II: The LaBon Matter

(57) In April 2001, Gary LaBon, who was imprisoned at the State Correctional Institution at Rockville, contacted respondent concerning representation in a Post Conviction Relief Act (PCRA) proceeding, in which he had filed a pro se petition; advised respondent of the facts of the case and the issues which he felt should be investigated and raised; and asked if respondent would represent him and what the fee would be.

(58) By letter dated April 27, 2001, respondent advised Gary LaBon that he would represent him for a fee of $5,000.

(59) Gary LaBon’s father, DeVaughn LaBon, a resident of California, spoke to respondent concerning the PCRA matter and informed respondent that he had only $3,500 at the time, but would pay the remaining $1,500 as soon as possible.

(60) Respondent agreed to represent Gary LaBon by reviewing the matter and contacting Gary LaBon.

(61) On June 28,2001, DeVaughn LaBon sent respondent five money orders in the amount of $700 each, which respondent received on July 2, 2001.

(62) Respondent negotiated the money orders. Respondent placed the funds in his attorney operating account and used it to pay operating bills and expenses.

(63) By certified letter dated August 1, 2001, which was received by respondent on August 22, 2001, Gary LaBon advised respondent where to obtain information concerning the alleged victim in his case and asked respondent to provide a copy of his file.

(64) By letter dated August 23, 2001, respondent:

(a) informed Gary LeBon that he had requested all of his records concerning the case;

(b) stated that he would amend the PCRA petition as soon as he received the records; and

(c) asked that Gary LaBon contact him with any other information relating to the petition that he wanted respondent to review.

(65) Respondent received Gary LaBon’s letter of August 23, 2001.

(66) Respondent took no further action in the matter.

(67) By certified letter sent in September 2001, Gary LaBon asked that respondent contact him to discuss his case. Respondent received Gary LaBon’s September 2001 letter.

(68) By certified letter dated October 15,2001, which was received by respondent on October 18, 2001, Gary LaBon asked respondent to respond to his inquiries about his case and to arrange to speak to him by telephone.

(69) In November 2001, DeVaughn LaBon called and sent two faxes to respondent requesting a refund of the fee due to non-performance of services on his son’s case. Respondent received the faxes on November 7, 2001.

(70) In a telephone conversation with DeVaughn LaBon, respondent agreed to refund the unearned fee.

(71) By letter dated December 17, 2001, Leland D. Sterling, Esquire, a California attorney, wrote to respondent on behalf of the LaBons and asked for a refund of the unearned fee, plus interest. Respondent received the letter.

(72) By certified letter datedFebruary 12,2002, which was received by respondent on February 14,2002, Gary LaBon requested that respondent perform the agreed-upon legal services or return his father’s money.

(73) By letter dated February 27, 2002, respondent:

(a) requested that Gaiy LaBon provide a copy of the PCRA petition;

(b) stated that he had contacted the courthouse in Wilkes-Barre and requested copies of Gary LaBon’s record; and

(c) asked whether Gary LaBon desired respondent’s continued representation.

(74) By certified letter dated March 3, 2002, which was received by respondent on March 5, 2001, Gary LaBon informed respondent of the location of the PCRA petition and the availability of information concerning his case on-line; again asked that respondent investigate matters involving the alleged victim and then amend the PCRA petition; and asked that if respondent did not intend to proceed on his behalf, to refund the fee to his father.

(75) Respondent failed to take any action on behalf of Gary LaBon.

(76) By certified letter dated April 12, 2002, which was received by respondent on April 23, 2002, Gary LaBon asked respondent to refund the $3,500 plus interest.

(77) Respondent refunded the $3,500 to DeVaughn LaBon in late July 2002.

Charge III: The Gamble Matter

(78) On or about April 6,2000, Henry L. Gamble consulted respondent with respect to representation in a petition to correct implementation of his divorce decree relating to division of his pension.

(79) Respondent agreed to represent Mr. Gamble for a fee of $1,000.

(80) Mr. Gamble gave respondent a $1,000 check for his legal services. Respondent placed the $1,000 check into his operating account.

(81) Thereafter, respondent delayed in taking any action on behalf of Mr. Gamble.

(82) From time to time, Mr. Gamble or his current wife called respondent to inquire as to the status of the matter.

(a) On two occasions, respondent returned calls at times at which the Gambles were not available.

(b) On other occasions, respondent apologized to the Gambles about the delay, told them about other cases that he was working on, and stated that everything was going well with Mr. Gamble’s case.

(83) Respondent’s statements to the Gambles that Mr. Gamble’s case was progressing satisfactorily were misleading, in that respondent had taken no action whatsoever on Mr. Gamble’s case.

(84) In October 2001, Mrs. Gamble called respondent to obtain the status of Mr. Gamble’s case.

(a) Respondent told Mrs. Gamble that the case was to be heard in December 2001, that it was not necessary that Mr. Gamble attend the hearing, and that he would call them back.

(b) Respondent’s statements to Mrs. Gamble that the case was scheduled for December 2001 were false and misleading, in that respondent had taken no action whatever on the case, and no hearing was scheduled.

(85) Thereafter, respondent failed to communicate with the Gambles or respond to their reasonable requests for information concerning Mr. Gamble’s case.

(86) In January 2002, Mrs. Gamble called respondent to inquire as to the outcome of the December 2001 hearing.

(a) Respondent told Mrs. Gamble that the case was to be heard in March 2002, he needed to talk to Mr. Gamble’s divorce attorney, and Mr. Gamble’s divorce attorney was needed for the March hearing but was ill.

(b) Respondent’s statement to Mrs. Gamble that the case was scheduled for March 2002 was false, in that no hearing was scheduled.

(87) In March 2002, Mrs. Gamble called respondent to inquire as to the outcome of the March hearing.

(a) Respondent told Mrs. Gamble that the matter was re-scheduled for May 2002.

(b) Respondent’s statement to Mrs. Gamble that the case was scheduled for May 2002 was false, in that no hearing was scheduled.

(88) By certified letter dated July 15,2002, Mr. Gamble asked that respondent refund the unearned fee.

(89) Respondent received Mr. Gamble’s certified letter on July 17, 2002.

(90) Respondent refunded the unearned fee on August 30, 2002.

(91) Mr. Gamble suffered financial hardship as a result of respondent’s failure to petition to correct the divorce decree.

Charge IV: The Weiser Matter

(92) In or about July 2000, David Weiser retained respondent to represent him in divorce, custody, support, and equitable distribution proceedings.

(93) Respondent informed Mr. Weiser that the fee for his representation would be a flat fee of $3,500.

(94) Respondent had not previously represented Mr. Weiser.

(95) By letter dated July 26, 2000, respondent purported to confirm his fee agreement with Mr. Weiser, stating that the fee “would be in the range of $3,500 to $5,000____I do not charge on an hourly basis but charge on ‘flat fee’ arrangement. However, should any extraordinary [sic] circumstances arise regarding this case, then we would sit down and discuss any additional legal fees, if necessary, over and above the maximum quoted fee of $5,000.” (Stip. ¶178.)

(96) The July 26, 2000 letter did not advise Mr. Weiser of the services included in the $3,500 to $5,000 fee, or how the fee would be determined within that range.

(97) On July 26, 2000, Mr. Weiser paid respondent $3,500 in cash.

(98) Respondent failed to enter his appearance on behalf of Mr. Weiser.

(99) During the course of the representation, Mr. Weiser removed financial records from the marital home in which his wife was residing.

(100) By letters dated September 27 and October 11, 2000, Ms. Betty Lawler, the attorney for Mr. Weiser’s wife, asked respondent to direct Mr. Weiser to return the records that Mr. Weiser had removed.

(101) By letter datedNovember 17,2000, Ms. Lawler:

(a) reminded respondent that he had not entered his appearance or filed an acceptance of service; and

(b) again asked respondent to have Mr. Weiser return the documents to Mrs. Weiser.

(102) Respondent received the November 17, 2000 letter.

(103) By letter dated January 19, 2001, Ms. Lawler advised respondent that if the documents were not returned within seven days, she would file a petition for special relief including return of the documents and payment of her counsel fees.

(104) Thereafter, respondent advised Mr. Weiser to make copies of 1988-1999 tax returns and provide them to his wife.

(105) Respondent failed to provide a written response to Ms. Lawler’s correspondence.

(106) On or about February 20,2001, Ms. Lawler filed a petition for special relief demanding return of the documents that Mr. Weiser removed from the marital residence.

(107) Respondent failed to formally respond to the petition for special relief.

(108) By letter dated March 13, 2001, respondent requested that Ms. Lawler itemize the records she was requesting.

(109) By letter dated March 27,2001, respondent advised Ms. Lawler that he believed that Mr. Weiser had provided the records.

(110) By order dated May 1, 2001, the court ordered Mr. Weiser to:

(a) return all documents, file cabinets and boxes taken from the marital home; and

(b) pay Ms. Lawler $750 in counsel fees by June 1, 2001, and if he failed to pay by June 1, 2001, the funds would be deducted from his share of equitable distribution.

(111) By letter dated June 19, 2001, respondent advised Mr. Weiser: “Pursuant to our many conversations, this letter will serve to confirm that any prior court ordered payments of attorney’s fees to Betty Lawler will be assumed by me.” (Stip. ¶200.)

(112) Respondent paid $500 to Ms. Lawler.

(113) By letters dated May 1 and June 10, 2002, Mr. Weiser reminded respondent that $250 of the fee to Ms. Lawler was still outstanding.

(114) Respondent received the letters.

(115) By letter dated January 8, 2003, Mr. Weiser:

(a) informed respondent that Mr. Weiser was obligated to pay the $250 at equitable distribution;

(b) asked respondent to reimburse the $250 directly to him; and

(c) requested that respondent refund the unearned portion of the fee.

(116) Respondent did not account for the fee paid by Mr. Weiser.

(117) Respondent failed to promptly reimburse Mr. Weiser the $250.

(118) Petitioner presented 17 exhibits at the hearing. (P-65 through P-81.) Each exhibit was a separate lawsuit wherein respondent was a named defendant. The time period of the lawsuits ranged from an August 29, 1997 lien of the Pennsylvania Department of Revenue to a Certification of Default of Settlement filed on April 8, 2004, one week before the disciplinary hearing.

(119) In these 17 lawsuits, respondent was sued for unpaid taxes, legal malpractice, breach of contract, failing to pay for services rendered, confession of judgment for office rent, medical professional fees owed, and failing to report his legal secretary’s earnings to the federal government. Default judgments were entered against respondent in four of the cases. (P-67, 68, 69, and 77.) There were a total of five tax liens, including two unsatisfied liens to the Internal Revenue Service in which respondent owes over $15,000. (P-71, P-75.) In addition, there were open judgments, totaling over $40,000, for money owed for doctor’s fees (P-78), rent (P-81), and books (P-77).

(120) During the time frame of the misconduct, respondent’s marriage was in the process of deteriorating.

(121) In April 1997, respondent was diagnosed with Crohn’s Disease, an illness involving the inflammation of the stomach lining, causing respondent to experience chronic fatigue and serious irregularities with his stomach and intestinal tract.

(122) During the period at issue, respondent was the sole caretaker for his elderly mother and was often consumed with responsibilities for her physical and financial well-being.

(123) Respondent was candid and truthful in his testimony before the Hearing Committee.

(124) Respondent expressed appropriate remorse for his misconduct and accepted full responsibility.

(125) Respondent presented the testimony of six character witnesses, all of whom are Pennsylvania-licensed attorneys.

(126) These witnesses offered credible testimony of respondent’s good reputation in the community for being a truthful, honest and law-abiding person.

III. CONCLUSIONS OF LAW

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

(1) R.P.C. 1.1 — A lawyer shall provide competent representation to a client.

(2) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(3) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(4) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(5) R.P.C. 1.5(b) — When a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.

(6) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

(7) R.P.C. 3.2 — A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

(8) R.PC. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

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

IV. DISCUSSION

This matter is before the board on a petition for discipline charging respondent with ethical misconduct in four separate client matters.

Respondent’s admissions, the joint stipulation of fact and law, and the clear and convincing evidence put forth by petitioner, establish that respondent violated the Rules of Professional Conduct as charged in the petition for discipline. Three of the clients retained respondent to represent them in domestic relations cases and the fourth client retained respondent to assist him in a post-conviction criminal proceeding. In all four matters, respondent failed to act diligently and neglected to communicate with his clients. Respondent failed to provide proper representation, and failed to tell clients that he had not obtained dates for hearings or notes of testimony. In two of the matters, respondent misrepresented the status of the case and the work he had done.

The only issue in this case is the appropriate measure of discipline to meet the disciplinary system’s goals. In determining the sanction in any disciplinary matter, the Disciplinary Board examines precedent for the purpose of measuring the respondent’s conduct against other similar transgressions. In re Anonymous No. 56 D.B. 1994, 28 D.&C.4th 398 (1995). The board will also consider any aggravating and mitigating factors presented. In re Anonymous No. 35 D.B. 1988, 8 D.&C.4th 344 (1990).

In cases involving serial neglect of client matters, such as those presented here, the Pennsylvania Supreme Court routinely imposes suspensions of at least one year and one day, the minimum period of suspension necessary to trigger the requirement of a reinstatement hearing.

In Office of Disciplinary Counsel v. Bolno, No. 162 D.B. 2000, 812 Disciplinary Docket no. 3 (Pa. March 7, 2003), Ms. Bolno engaged in a pattern of conduct similar to that of the instant respondent. During a span of seven years involving four client matters, Ms. Bolno failed to diligently and competently represent clients, failed to communicate with clients and opposing counsel, and misrepresented the status of matters to clients. Ms. Bolno also made a misrepresentation on her New Jersey attorney registration form that she was “inactive,” when in fact she was suspended. The Hearing Committee recommended a six-month suspension. Citing In re Anonymous No. 72 D.B. 1999, No. 685 Disciplinary Docket no. 3 (Pa. April 2, 2001), and In re Anonymous No. 91 D.B. 1990, 14 D.&C.4th 597 (1992), the Disciplinary Board found that recent cases involving a pattern of neglect and misrepresentation have resulted in suspensions of one year and one day. The Disciplinary Board concluded that a suspension of this duration effectively serves to protect the public and to reflect the gravity of the misconduct in which respondent engaged. Upon consideration of the Disciplinary Board report, the Supreme Court deviated from the board’s recommendation and imposed a greater suspension of two years.

The Supreme Court also increased the Disciplinary Board’s recommendation of discipline in In re Anonymous No. 142 D.B. 1999, 60 D.&C.4th 522 (2001). In that case, the respondent neglected only three legal matters and made only one misrepresentation as to the status of a case during a four-year period. Like the instant respondent, the attorney stipulated to all the factual allegations and to violations of the Rules of Professional Conduct. But unlike respondent, the attorney undertook significant and specific steps to improve the administration of his office. This attorney had previously received three informal admonitions. Recognizing that each disciplinary case is unique, the board found that where “neglect of client matters is not an isolated instance but impacts numerous clients and involves some element of misrepresentation, the required discipline is generally a suspension.” Id. at p. 540. The Disciplinary Board recommended that the respondent be suspended for a period of six months. The Supreme Court imposed a suspension of one year and one day. Id. at p. 541. One month prior to its decision in No. 142 D.B. 1999, the Supreme Court imposed a suspension of one year and one day upon a respondent who engaged in neglectful and incompetent conduct in eight bankruptcy matters over a two-year period. Office of Disciplinary Counsel v. Levande, No. 658 Disciplinary Docket no. 3, (Pa. April 2, 2001). The board noted that Mr. Levande’s conduct did not last as long as another attorney who was suspended for two years for neglecting 11 cases over five years. Id. atp. 33, citing In re Anonymous Nos. 52, 79 & 116 D.B. 92 and 30 D.B. 93, 24 D.&C.4th 447 (1994). Mr. Levande also failed to properly maintain financial records and handle client funds. Although Mr. Levande had received two prior informal admonitions, there was no finding of intentional misrepresentation.

The case of In re Anonymous No. 91 D.B. 1990, 14 D.&C.4th 597 (1992), presented the converse fact pattern as Levande. Therein, the respondent had no history of discipline but made misrepresentations to clients in two cases he neglected. The respondent also altered an existing document. The board recommended a suspension of a year and one day, reasoning that “a suspension may be the appropriate sanction for cases of neglect and misrepresentation even... where no prior discipline has been administered____” Id. at p. 608. The Supreme Court adopted the board’s recommendation.

Similarly, in In re Anonymous No. 121 D.B. 1994, No. 281 Disciplinary Docket no. 3, (Pa. Dec. 30, 1996) the respondent had no record of discipline. He neglected four legal matters during a one and a half year period. Although the respondent made statements to clients that led them to believe that he was taking action on their case, the board did not find that he gave any patently false status reports. The board recommended a two-year suspension, and the Supreme Court adopted that recommendation.

The foregoing cases highlight the relevant factors the Supreme Court considers in determining the appropriate discipline. These factors include the number of legal matters neglected; length of time over which the neglect occurred; and presence or absence of misrepresentation, and the attorney’s prior disciplinary history.

In the instant matter respondent neglected four client matters during a four-year time frame, and made misrepresentations to two clients. In the Lutz matter, respondent appeared to take ineffectual shortcuts in his efforts to handle his client’s custody case. Respondent did not follow appropriate procedures as required by the court. In the LeBon matter respondent failed to take action on behalf of his client, who was incarcerated in a distant location at the time. Respondent did refund the monies paid by the client. Respondent’s actions in the Gamble matter are serious, as he essentially did nothing on behalf of his client, but misled him as to the status of the case by fabricating accounts of hearings that supposedly were to occur, but did not for the reason they were never scheduled. The Weiser matter is another attempt by respondent to take shortcuts rather than the proper steps to accomplish his client’s goals.

Petitioner presented 17 joint stipulations as aggravating factors. Each stipulation represented a separate civil action in which respondent was a defendant, ranging from 1997 until the present. The civil actions involve respondent being sued for activities both as an attorney and as a private individual.

Examination of the docket entries reveals that there were four default judgments, sanctions imposed on respondent, and a preliminary injunction entered against respondent for failing to report his secretary’s taxes to the federal government. Of the 17 lawsuits, there were five tax liens, three from the Pennsylvania Department of Revenue and two from the Internal Revenue Service. The Department of Revenue judgments were satisfied in January 2004, while the IRS liens are still open. In two matters where the docket reflects open judgments, respondent showed that he satisfied the judgments. In three other matters, there are open judgments for money owed to doctors for professional services, to respondent’s landlord for rent, and to a publishing company for books. The board does not find that these civil actions should be held against respondent in his disciplinary proceedings.

Mitigating factors are respondent’s lack of prior discipline, cooperation with the investigation, and expression of remorse. Respondent was under domestic and physical duress during the relevant time period, although such personal problems do not rise to the level of Braun mitigation. Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989). Finally, respondent presented the character testimony of six members of the bar who have known him for years, and who know his reputation in the community as a person who is truthful, honest and law-abiding.

Discipline must reflect the primary interests of the disciplinary system to protect the public and maintain the integrity of the legal profession. Following a thoughtful analysis of the facts of this matter, the Hearing Committee recommended a suspension of one year with a practice monitor. The board is not convinced that a practice monitor is appropriate under these particular circumstances. Respondent’s misconduct involved, among other things, misrepresentations to clients. This is not the kind of practice problem that a monitor can deter. Additionally, respondent appeared to be fully aware of the correct steps to take in pursuing his cases, but chose to take shortcuts or try alternative procedures. Respondent believes that his practice problems resulted from his marital difficulties and other personal problems, which he has taken steps to address.

In considering the totality of the circumstances and following the guidance of prior similar cases, the board recommends that respondent be suspended for one year and one day. Respondent’s acts of neglect, lack of communication and misrepresentation in four separate matters indicates that he is unfit to practice law at this time. A suspension of one year and one day requires that respondent file a reinstatement petition and prove his fitness to practice law.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Howard Goldman, be suspended from the practice of law for a period of one year and one day.

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

Board Member Gentile dissented and would recommend a one-year suspension.

Board Member Suh dissented and would recommend a two-year suspension.

Board Member Curran did not participate in the matter.

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

ORDER

And now, August 30, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated May 20, 2005, the petition for review and response thereto, it is hereby ordered that Howard Goldman be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he 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 prosecution of this matter are to be paid by the respondent.


author: SCHAEFFER, S.J.,

text:
    Feinberg v. Smith

      C.P. of Berks County,
    no. 01-4000.

      David M. Kozloff, for plaintiff.

      Timothy J. Rowley, for defendant.
    April 5, 2005
   SCHAEFFER, S.J.,

Before the court is plaintiff’s appeal of the judgment entered by operation of law on January 6, 2005, in the above-captioned matter.

On August 5, 1999, at approximately 4:50 p.m., the defendant, Smith, drove his vehicle into the path of appellant’s vehicle while approaching the intersection at Oley Turnpike Road and Church Lane in Exeter Township, Berks County, Pennsylvania. Appellant’s vehicle was totaled as a result of the collision. On April 18,2001, appellant filed his complaint for damages, to which Smith filed an answer with new matter. In a pretrial memorandum, Smith stipulated that he was negligent in causing the accident. On September 25,2002, a jury found a verdict in favor of Smith and against appellant. On October 4,2002, appellant filed a motion for post-trial relief; the court granted the motion for a new trial. Smith appealed. On December 3, 2003, the Superior Court affirmed the grant of a new trial. A subsequent trial was held, and on August 4, 2004, a verdict was entered against appellant and in favor of Smith. On August 10, 2004, appellant filed a motion for post-trial relief. As the post-trial motions were denied by operation of law pursuant to Pa.R.C.P. 227.1, Smith filed a praecipe for entry of judgment on January 6, 2005, and the prothonotary entered the judgment on that date. On February 2, 2005, appellant timely filed his notice of appeal to the Superior Court.

In his concise statement of matters complained of on appeal, appellant asserts:

“(1) A new trial on the matter of damages alone or, alternatively, a new trial generally should be granted where the verdict was contrary to the evidence, law and the charge of the court because the defendant stipulated that the defendant was negligent and that the defendant’s negligence was a substantial factor in causing the accident, and there was uncontradicted evidence that the plaintiff had sustained injuries as a result of the accident which was the subject of the lawsuit.
“(2) A new trial on the matter of damages alone or, alternatively, a new trial generally should be granted where the verdict was against the weight of the evidence.
“(3) A new trial on the matter of damages alone or, alternatively, a new trial generally should be granted where the verdict is so contraiy to the evidence where it shocks the court’s sense of justice.
“(4) Pursuant to the law of the case doctrine, a new trial on the matter of damages alone, or alternatively, a new trial generally should be granted pursuant to the Superior Court memorandum opinion of December 3, 2003, in this matter.
“(5) A new trial on the matter of damages alone or, alternatively, a new trial generally should be granted where the defendant offered no evidence to prove that the plaintiff did not sustain injury as a result of the accident.
“(6) A new trial on the matter of damages alone or, alternatively, a new trial generally should be granted where there was uncontradicted and uncontroverted evidence that the plaintiff had sustained injury as a result of the accident, to which defendant stipulated to his negligence and that the defendant’s negligence was a substantial factor in causing the accident.
“(7) The jury verdict should be set aside where the verdict bears no reasonable relation to the loss suffered by the plaintiff.

“[Wjhere a properly preserved weight of the evidence claim is raised on appeal and the judge who presided at trial failed to rule on the claim and is now permanently unavailable to do so, the claim must be reviewed by the appellate tribunal in the first instance.” Armbruster v. Horowitz, 572 Pa. 1, 13, 813 A.2d 698, 705 (2002). Under Pa.R.C.P. 227.4, once judgment is entered, the trial court may not consider the issues on appeal. Id. at 8 n.3, 813 A.2d at 702, n.3; Hartner v. Home Depot USA Inc., 836 A.2d 924, 930 (Pa. Super. 2003). Therefore, those issues are for the Superior Court and the judge who presided at trial is permanently unavailable to rule on the claims, whether he is on the bench at this time or not. The appellate court shall review the evidence in the first instance. Hartner at 930.

Appellant first asserts that a new trial should be granted where the verdict was contrary to the evidence, law and the charge of the court because Smith stipulated that he was negligent and that his negligence was a substantial factor in causing the accident, and there was uncontradicted evidence that appellant had sustained injuries as a result of the accident which was the subject of the lawsuit. We would agree. The December 3,2003 decision of the Superior Court is now the law of the case. The Superior Court affirmed our ruling that the first jury’s verdict finding, that Smith’s negligence was not a substantial cause of appellant’s injuries, “shock[ed] the court’s sense of justice” and our grant of a new trial on that basis. As the Superior Court stated, “Feinberg’s evidence was robust and the testimony of his experts relied on more that just Feinberg’s account of his medical history. In addition to these, there was considerable objective diagnostic evidence, including three MRIs, one x-ray, and others.”

At the second trial, appellant again presented the testimony of Dr. Harold Einsig, a physiatrist and Dr. Scott Lynch, an orthopaedic surgeon. Their testimony established that the injury to appellant’s left hip was caused by the accident, was painful, would worsen over time, and that appellant was a potential candidate for hip replacement surgery. Before this accident, appellant was a 28-year-old summa cum laude college graduate and athlete, pursuing graduate work to be able to go to medical school. Prior to the accident, he was in excellent shape, was very active and had no health problems. His prior injuries from his involvement with sports were limited to a sprain of the left knee, which occurred 10 years before the accident and had fully healed, an injury to his left shoulder in 1991 and a knee injury in 1997 that were both resolved before the accident. Appellant never had any problem with his left hip at all. After the accident, appellant had an audible “clicking” and popping noise in his left hip.

Dr. Einsig testified that, upon examination of appellant after the accident, appellant had a lot of pain upon full extension of the hip and that audible clicking or snapping that was heard with joint compression, rotation and movement about the left hip, which is abnormal. (Notes of testimony, 8/2/04, pp. 102-103.) Appellant was prescribed physical therapy, but this caused aggravation of the pain, so it was discontinued. (Id. atp. 109.) Attempts at rehabilitation therapy were unsuccessful because they increased the pain. (Id. at p. 112.) X-rays and MRI imaging and serial MRIs showed development of a bony edema area within the bone at the lateral femoral posterior condyle area. (Id. at pp. 115-16.) There were also roughened surfaces of the acetabulum itself and there is a significant divot formation on the head of the femur. (Id. at pp. 115-21; plaintiff’s exhibit 7.) The prognosis for appellant is poor; there may be permanent limping and an increased risk for hip replacement surgery at an early age. (Id. at p. 122.) The doctor testified that appellant’s pain was caused by the direct force of his femur being driven up to his hip joint by the automobile accident. (Id. at p. 125.) This evidence was uncontradicted.

Dr. Lynch testified that appellant has repetitive micro-trauma to an area of the femoral head. (Notes of testimony, 8/3/04; plaintiff’s exhibit 4, p. 20.) He gave two possible causes for the accumulation of fluid in appellant’s left hip area. One was where “from the load he got to his joint, he may have flaked off a little bit of the surface of the joint, the cartilage that lines the surface of the joint.” (Id. at p. 22.) “Now there is a piece that is loose. So when he moves his hip, that can get caught in there; or even if it wasn’t flaked off, if he had enough significant trauma to that area, it caused the cell death in that surface cartilage, then that can flake off later or start to wear away later on.” (Id.)

Dr. Lynch testified that “the other possibility would be if his labrum was tom, and that was getting caught in the joint as he moved it causing mechanical impingement there.” (Id.) Dr. Lynch testified that appellant has not made any progress and it is unlikely that he is going to get any better; the pain will be permanent in nature. (Id. at pp. 26-27.) He also testified that the injury, whatever its etiology, resulted from the automobile accident of August 5, 1999. (Id. at p. 28.) Dr. Lynch opined that the condition will worsen over time. (Id. at p. 29.)

None of the experts who testified at trial changed their opinions as a result of cross-examination. The testimony was uncontradicted. As we stated previously, it shocks the court’s sense of justice that the jury would totally disregard the uncontested expert testimony that this young man has an objective, and painful, condition that will worsen over time and may result in the need for a hip replacement. Appellant was seriously, and significantly, injured in this accident. The injury to his left hip was not related to any prior injuries. His injuries are compensable. As was stated by the Superior Court long before this case arose, we find that the “injustice of the verdict stands forth like a beacon.” The fact that two juries have now rendered similar verdicts does not give either verdict a reasonable relation to the loss suffered by appellant. We acknowledge that the jury did specifically find that the defendant’s admitted negligence was not a substantial factor in causing appellant’s injuries. However, that finding was not supported by any evidence at all. A jury verdict finding that the admitted negligence was not a substantial factor in causing uncontradicted injuries cannot stand where, as here, it bears no rational relationship to the evidence. See generally, Kruczkowska v. Winter, 764 A.2d 627 (Pa. Super. 2000).

Prejudice against appellant clearly biased this jury.

We respectfully request that the Superior Court remand this case for a new trial, on damages alone, so that right may prevail.

      . On January 10,2005, appellant filed a praecipe for argument on the post-trial motions, but argument was not held, as judgment had already been entered.

      . At the time of the second trial, appellant had been accepted into medical school.