source: Caselaw Access Project

author: MORRIS, Member,

license: Public Domain

text:
    In re Anonymous No. 93 D.B. 98
    Disciplinary Board Docket no. 93 D.B. 98.
    September 14, 2000
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

MORRIS, Member,

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

I. HISTORY OF PROCEEDINGS

Petitioner, [ ], filed a petition for reinstatement to the bar of Pennsylvania on August 31, 1999. Petitioner was suspended for one year and one day retroactive to May 21,1998 by order of the Supreme Court dated July 20, 1999.

A reinstatement hearing was held on November 1, 1999 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire and [ ], Esquire. Petitioner appeared pro se. Office of Disciplinary Counsel was represented by [ ], Esquire.

The Hearing Committee filed a report on March 17, 2000 and recommended that the petition for reinstatement be granted.

No briefs on exception were filed by Office of Disciplinary Counsel.

This matter was adjudicated by the Disciplinary Board at the meeting of May 11, 2000.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was born in 1949 and was admitted to practice law in the Commonwealth of Pennsylvania in 1983. His address is [ ].

(2) Petitioner was suspended from the practice of law by order of Supreme Court dated July 20, 1999. This suspension was for a period of one year and one day and was made retroactive to May 21, 1998.

(3) Respondent was suspended for failing to diligently pursue client cases, failing to communicate with clients, failing to surrender client files and failing to refund unearned fees when required, and neglecting legal matters.

(4) Petitioner was eligible to file a petition for reinstatement after May 21, 1999. He did so on August 31, 1999.

(5) Prior to the filing of petitioner’s petition, Office of Disciplinary Counsel received a complaint against petitioner.

(6) This complaint was investigated and on October 1, 1999, Office of Disciplinary Counsel sent petitioner a written statement of the allegations and requested a statement of position from him. Respondent provided this statement on October 29, 1999.

(7) Respondent admits that he failed to notify a client in a criminal proceeding that he was suspended. (N.T. 22.)

(8) While suspended, petitioner assisted the client in preparing three motions for continuance. Petitioner did not sign these motions. (N.T. 24-26.)

(9) Prosecutors and court personnel were aware of petitioner’s suspended status and were aware of the circumstances surrounding the filing of the continuances.

(10) Petitioner refunded a fee paid to him by the client.

(11) The client’s case was resolved by other counsel.

(12) Petitioner testified that the marital problems he experienced in the past have been resolved. (N.T. 13.)

(13) During his suspension, petitioner spent his time remodeling his house. He was offered legal research jobs but declined them because he felt the offers were in the nature of charity for him. (N.T. 16.)

(14) Petitioner took 38 hours of continuing legal education credits and kept updated on the law by reviewing recent court opinions.

(15) If reinstated, petitioner hopes to start practicing again in [ ] County. (N.T. 14.) He intends to practice criminal law.

III. CONCLUSIONS OF LAW

Respondent has proven that he has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

Respondent’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or administration of justice nor subversive of the public interest.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by petitioner, [ ]. Petitioner was suspended for one year and one day retroactive to May 21, 1998 pursuant to Supreme Court order of July 20, 1999.

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

Office of Disciplinary Counsel presented evidence at the hearing that petitioner failed to notify a client of his suspension and continued to practice law after the effective date of his suspension. Prior to petitioner’s suspension he agreed to represent a client in a non-jury criminal matter. Petitioner admitted that he failed to inform the client after the suspension order was issued. This is a violation of Pa.R.D.E. 217(b) requiring notification of a suspension to all clients. Furthermore, the facts brought out at the hearing show that petitioner assisted his client in preparing three motions for continuance after the effective date of his suspension. Prior to filling out the forms, petitioner informed the judge’s staff that he was suspended and needed to continue his case. The staff personnel advised petitioner to fill out the continuance forms and have his client sign them. Petitioner filled in the “reasons” portion of the continuance form and had his client sign it. Petitioner did not sign the forms. No court appearance was required for this, as the judge’s staff handled the postponements. The judge, court personnel and prosecutor were aware of petitioner’s status as a suspended attorney. Another attorney concluded the client’s case.

The issue raised by this conduct is whether petitioner engaged in the unauthorized practice of law. The Hearing Committee concluded that while petitioner’s actions were not “pristine,” they were not so egregious as to constitute the unauthorized practice of law.

The case law on this issue supports this conclusion. In the matter of In re Anonymous No. 35 D.B. 85, 48 D.&C.3d 254 (1988), an attorney failed to make proper notification of his suspension as required under Rule 217, Pa.R.D.E., he continued to accept engagements as an attorney and continued to negotiate claims on behalf of clients during his suspension. When he sought reinstatement, the Hearing Committee recommended denying the petition because of these activities. The board found that these acts were de minimis and did not establish a finding that the attorney engaged in the unauthorized practice of law. The board recommended and the Supreme Court granted the petition for reinstatement.

The board is in agreement with the committee’s conclusion in the instant matter. Petitioner made the court personnel aware of his status and they in turn advised him how to handle the postponement requests. It is unfortunate that petitioner did not see the necessity of advising his client of his suspended status; however, petitioner was attempting in the best way he knew to resolve his client’s case. These activities at best are de minimis infractions and do not warrant the denial of petitioner’s reinstatement request. Additionally, the board notes that petitioner admitted to the facts of the matter and demonstrated complete candor in his responses to Disciplinary Counsel and the committee.

Petitioner displayed frankness in the balance of his testimony, also. He realizes that he has made many mistakes in the manner in which he practiced law in the past. He attributes his problems to time and office management issues compounded by marital difficulties and professional disappointments. Petitioner has had time to reflect on these mistakes and determine how to remedy them.

During his suspension petitioner completed 38 hours of continuing legal education courses. He reviewed recent court opinions to keep apprised of changes in the law. He has demonstrated remorse for his misconduct.

The board finds that petitioner has proven by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to the bar. The record is clear that his reinstatement will not be detrimental to the integrity of the bar nor subversive of the public interest.

The board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board member Sheerer recused himself.

ORDER

And now, November 17, 2000, upon consideration of report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated September 14, 2000, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: CORBETT, J.,

text:
    McGuigan v. Weiss

      C.P. of Lackawanna County,
    no. 95-CIV-2049.

      Irwin Schneider, for the plaintiffs.

      Mark T. Perry, for defendant Stefanelli.

      Timothy E. Foley, for defendant Weiss.

      James J. Wilson, for defendant Mercy Hospital.
    May 7, 2001
   CORBETT, J.,

Before the court are motions for summary judgment by all defendants in this matter. By agreement of the parties, the motion by James L. Stefanelli M.D. will be granted. This matter has previously been before us on the defendants’ motion for sanctions on a spoliation of evidence theory. In a decision filed June 29, 2000, we granted the defendants’ motion for sanctions and precluded the expert testimony of Dr. John J. Shane as it pertains to him offering expert testimony based upon his inspection of the sutures in this matter. The defendants now move for summary judgment based on their arguments that since the plaintiffs cannot produce expert testimony, no genuine issues of material fact exists for trial. We heard the oral arguments of the parties and have had the opportunity to review the entire record including the submissions of the parties, therefore, this matter is ripe for disposition.

BACKGROUND

On May 31, 1995, the plaintiff filed a complaint against the defendants for injuries allegedly sustained by the minor plaintiff as a result of the defendants’ negligence for using non-absorbable sutures in a circumcision performed on the minor plaintiff. Additionally, the plaintiffs aver that Dr. Weiss failed to secure their informed consent before proceeding with the surgery. On May 19, 1986, defendant, Jeffrey P. Weiss M.D., performed a circumcision on the minor plaintiff at defendant Mercy Hospital. Dr. Weiss asserts he used absorb-able 5/8 chromic sutures, which should have dissolved within 2 to 3 weeks after the surgery. On April 14,1992, the minor plaintiff was seen by his family physician, Dr. Gardner regarding a lesion on his penis. Plaintiffs allege that Dr. Gardner removed several sutures as set forth in his records which indicate the minor plaintiff had “retained sutures.” On June 3,1992, defendant James L. Stefanelli M.D., examined the minor plaintiff and his assessment was suture sinuses with extrusion of sutures. On July 2, 1992, Dr. Stefanelli removed the suture sinuses. Subsequently, the minor plaintiff was again seen by Dr. Stefanelli on August 5, 1992.

Plaintiffs allege that it was Dr. Stefanelli’s opinion that the sutures used in the circumcision by Dr. Weiss were permanent and non-absorbable. Plaintiffs assert that Dr. Stefanelli testified that in his experience of greater than 900 times using absorbable sutures, he had less than five times seen a presentment like the minor plaintiff’s. They further argue that Dr. Stefanelli observed that absorbable sutures had a very different texture and color than non-absorbable sutures. Dr. Stefanelli did note in his operative report dated July 2, 1992 that “it may have been that permanent sutures were used.” Thereafter, Dr. Gardner of the Geisinger Medical Clinic, removed additional sutures all of which is reflected in his medical records.

Defendant Dr. Jeffrey P. Weiss testified that the minor plaintiff’s original circumcision took place at defendant Mercy Hospital. Mercy Hospital provided the surgical sutures, together with the rest of the equipment used in the circumcision. There is no question in this case that none of the suture material used in this circumcision is available for inspection by any of the defendant’s experts. As a result by our order and opinion of June 29, 2000, we precluded any expert testimony of plaintiffs derived from inspection of these sutures. On February 24, 1999, an order was issued by Judge Nealon mandating all pretrial discovery be completed within 90 days of the date of the disposition of the defendants’ motion for sanctions. Additionally, Judge Nealon ordered that within 45 days of the completion of discovery, the plaintiff was required to produce the reports and curriculum vitae of all expert witnesses who would testify on behalf of the plaintiffs at the time of the trial.

Defendants move for summary judgment based on the argument that plaintiffs have not and cannot produce expert reports without being in violation of Judge Nealon’s order, thereby they cannot meet their burden of proof at trial. In response, plaintiffs first argue that they have produced a supplemental report of Dr. Shane, not based upon his examination of the sutures, but based upon the medical records and testimony. Dr. Shane concludes in this report that in his opinion based upon a reasonable degree of medical certainty after his examination of the records and testimony that the sutures used in the circumcision were non-absorbable. Plaintiffs argue that Dr. Shane’s report should be admissible under Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 664 A.2d 525 (1995). Further, the plaintiffs argue they have an expert report of a urologist, Dr. Seymour S. Kilstein who concludes that if non-absorbable sutures were used in this surgery then Dr. Weiss has deviated from the standard of care.

DISCUSSION

A motion for summary judgment places the burden upon the moving party. The moving party must show that there exists no genuine issue of any material fact for trial. Pa.R.C.P. 1035.2. The moving party must be entitled to judgment as a matter of law and the moving party has the burden of proving that no genuine issue of material fact exists. Washington v. Baxter, 553 Pa. 434, 436, 719 A.2d 733, 737 (1998). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Id. An entry of summary judgment is granted only in cases where the right is clear and free of doubt. Accu-Weather v. Prospect Communications, 435 Pa. Super. 93, 644 A.2d 1251 (1994). The moving party has the burden of proving the nonexistence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rapagnani v. Judas Co., 136 A.2d 666, 668 (Pa. Super. 1999). To withstand such a motion, the non-moving party must adduce sufficient evidence on a crucial issue as to which that party bears the burden of proof so as to demonstrate that a jury could return a verdict in favor of the non-movant. Hames ex rel. Hames v. Philadelphia Housing Authority, 737 A.2d 825, 828 n.4 (Pa. Commw. 1999).

In the instant matter defendants argue they are entitled to summary judgment as a matter of law because the plaintiffs have not produced expert reports to carry their burden at trial. Defendants argue that pursuant to Judge Nealon’s order, the time for submitting expert reports has expired. Further, defendants argue that pursuant to this court’s order of June 29, 2000, the plaintiffs are precluded from offering expert testimony of Dr. Shane. Plaintiffs respond by arguing that the most recent report of Dr. Shane does not violate this court’s order of June 2000 and that the report is admissable under the long-standing rule of Miller, supra. Additionally, plaintiffs argue they submitted an expert report of Dr. Kilstein which discusses the defendants’ negligence.

“In order to set forth a prima facie case of medical malpractice, a plaintiff must establish (1) a duty owed by the physician to the patient; (2) a breach of duty from the physician to the patient; (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm.” Toogood v. Owen J. Rogal D.D.S., P.C.," 764 A.2d 552, 555 (Pa. Super. 2000). (citations omitted) Generally, in order to prove medical negligence, a plaintiff must introduce expert testimony to prove that the conduct at issue deviated from accepted standards of medical malpractice, and that the deviation caused injury to the plaintiff. Id. Expert testimony is required in those cases where there is no fund of common knowledge from which laymen can reasonably draw the inference or conclusion of negligence. Id. citing Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981).

In the instant matter, Dr. Kilstein’s reports clearly find that if Dr. Weiss used non-absorbable sutures in the circumcision, then he was negligent. In our opinion of June 29, 2000, We thereby found that under the doctrine of spoliation of evidence, the defendants would be highly prejudiced if Dr. Shane were able to testify about his findings as a result of his examination of the sutures. The issue was that Dr. Shane was the last to possess a suture removed from the plaintiff and thereafter lost or misplaced it. The defendants were forever denied the ability to have the suture examined by their own experts. Therefore, we precluded Dr. Shanes’ testimony regarding his examination of the sutures.

In his most recent report, Dr. Shane bases his findings not in examination of the sutures, but solely on the testimony of Drs. Weiss and Stefanelli and Dr. Stefanelli’s observation was that the sutures he removed apparently would have been “permanent sutures.” Dr. Shane also relied on Dr. Eicher’s pathology report from Geisinger Medical Center indicating that the sutures were “dark gray” rather than a yellow, tan or brown translucent chromic suture material. As a result of his review of this evidence, Dr. Shane opines, within reasonable certainty that the suture material used in the 1986 circumcision by Dr. Weiss was a non-absorbable suture material, and that this suture material resulted in subsequent difficulties requiring the multiple surgeries of the minor plaintiff. “It is well settled in Pennsylvania that a medical expert is permitted to express an opinion which is based, in part, on medical records . . . which are customarily relied on by experts in his or her profession.” Collins v. Cooper, 746 A.2d 615, 618 (Pa. Super. 2000).

With regard to Dr. Shane’s most recent report, we find it is in compliance with this court’s June 29, 2000 order. Specifically, the order precluded Dr. Shane from rendering an opinion based on his examination of the sutures. The report of January 2001, sets forth an opinion based upon review of records and testimony of the treating physicians, not the examination of the suture. Therefore, it does not violate our prior order.

To the extent that Dr. Seymour Kilstein’s report dated March 24, 1997 relies upon Dr. Shane’s examination of the actual suture, that portion of his opinion shall be redacted. If however he remains able to opine to a reasonable degree of medical certainty that the use of nonabsorbable sutures on a penis is a deviation of the acceptable standard of care, plaintiffs survive summary judgment.

Finally, the motions before this court are for summary judgment, not sanctions for plaintiffs’ failure to comply with Judge Nealon’s scheduling order. In viewing the evidence in light most favorable to plaintiffs, we find that defendants fail to meet their burden. Summary judgment is denied to defendants Weiss, Mori, Mori and Preate Associates and Mercy Hospital. Summary judgment is granted by agreement as to Dr. Stefanelli. An appropriate order to follow.

ORDER

And now May 7, 2001, based upon our review of the record, submissions and arguments of the parties, it is hereby ordered and decreed that the motion for summary judgment filed by defendant James L. Stefanelli M.D. is granted. It is further ordered, that the motions for summary judgment filed by the remaining defendants are denied.


author: MINORA, J.,

text:
    Driscoll v. Walker

      C.P. of Lackawanna County,
    no. 99 CV 3027.

      Thomas J. Foley III, for plaintiff.

      John T McGrath and Benjamin A. Nicolosi, for defendants.
    March 27, 2001
   MINORA, J.,

I. INTRODUCTION

Currently before the court is the plaintiff’s motion to preclude duplicative independent medical examinations. By way of background, plaintiff filed a complaint in this instant action alleging negligence and resultant injuries from a June 26, 1997 motor vehicle accident, in which the plaintiff alleges multiple injuries including injuries to her right shoulder. Subsequently, on March 26, 1998, plaintiff re-injured her right shoulder while in the course and scope of her employment with N.E.I.U. no. 19. Defendants’ law firm represents not only the defendants in the instant action, but also plaintiff’s employer in the workers’ compensation proceeding pending before the Honorable William J. Hall. The injury issues in both this action as well as those in the workers’ compensation proceeding involve questions regarding the nature and the scope of the injuries to plaintiff’s right shoulder in the subject June 26, 1997 motor vehicle accident and in the March 26,1999 workers’ compensation incident.

Apparently the unusual facts of this case reveal the defendants’ law firm wants to conduct two separate independent medical examinations for the auto accident and workers’ compensation case respectively. Plaintiff has resisted that attempt by filing this instant motion to preclude duplicative medical examinations on July 21, 2000. Defendants filed an answer to plaintiff’s motion to preclude duplicative independent medical examinations on August 22, 2000. The plaintiff filed a supportive brief on January 5, 2001 and the defendants filed their brief in opposition thereto on January 16, 2001.

The court entertained oral argument on January 25, 2001 thus rendering this matter ripe for disposition.

II. ISSUE

A. Should the Court Grant Plaintiff’s Motion To Preclude Two Independent Medical Examinations When One Would Address the Instant Automobile Accident Injury of June 26, 1997 and the Other Would Address the Workers’ Compensation Incident of March 26, 1998?

m. DISCUSSION

Pennsylvania Rule of Civil Procedure 4010(a) authorizes a trial court to order the mental or physical examination of a party when the mental or physical condition of that party is in controversy. In addition to the requirement of the party’s condition being in controversy, this rule also provides that said examination be granted only on a motion for good cause shown. John M. v. Paula T., 524 Pa. 306, 314, 571 A.2d 1380, 1383 (1990). The good cause requirement is intended to ensure that a plaintiff’s privacy is not unduly invaded. Uhl v. C. H. Shoemaker & Son Inc., 432 Pa. Super. 230, 234, 637 A.2d 1358, 1360 (1994); Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997) and to preclude the use of such examination for improper purposes. McGratton v. Burke, 449 Pa. Super. 597, 601-602, 674 A.2d 1095, 1097 (1996) alloc. denied, 546 Pa. 667, 685 A.2d 546 (1996). The determination of whether the requisite good cause exists is left to the sound discretion of the trial court and this decision may not be reversed on appeal unless it is manifestly unreasonable and an abuse of discretion is shown, McGratton, supra.

Unlike some of the other cases wherein we have addressed involving subsequent and/or supplemental requested independent medical exams, what we have here is essentially a request to conduct two separate exams addressing two separate types of cases and two separate causes of actions, one in personal injury and the other in workers’ compensation.

We realize certain principles still apply. As we have noted Pa. R.C.P. 4010(a) does not specifically permit or prohibit more than one examination of a plaintiff, but a defendant bears a heightened burden of demonstrating good cause for multiple medical examinations. See La Dolce v. Township of Roaring Brook, 99 Lacka. Jur. 54, 57 (1998); Wilczynski v. Lackawanna MultiPurpose Stadium Authority, 42 D.&C.4th 337 (Lacka. Cty. 1999). See also, 18 Goodrich-Amram2d §4010(a) for a discussion of multiple independent medical exams.

Situations allowing multiple medical exams are cases where there is a new injury since the date of the initial examination or where the plaintiff concealed an injury at the time of the first examination. La Dolce, supra at 57. (emphasis added)

Neither exceptional situation noted above exists here. This case has unusual and unique facts. The court is mindful that the defendant has the right to require the plaintiff to be examined by a physician of defendant’s own choosing. This is an adversarial proceeding and these examinations are not meant to be impartial and the outright disqualification or choosing of a physician by the court is beyond the appropriate exercise of judicial discretion. Harding v. Sears, Roebuck & Co., 47 D.&C.3d 591 (1987); Lesnick v. Ruane, 48 D.&C.3d 535 (1988); see also, 7 Standard Pennsylvania Practice 2d §37:17 at p. 122.

We realize the argument that the plaintiff may be subjected to two independent medical examinations and we must also note that the plaintiff has elected to file two separate causes of action. Therefore, the examinations are arguably not duplicative but involve legal and factual issues particular to each case, {i.e., the auto accident of June 26, 1997 and the workers’ compensation case of March 26, 1998).

We do note, however, that this court must look with heightened scrutiny upon any requests from the defendants to conduct seriatim independent medical exams in this present matter and the workers’ compensation action. See La Dolce, supra and Wilczynski, supra. The plaintiff’s right to privacy is critical and worthy of protection by this court and it should not be unduly invaded. See Uhl, supra, at p. 3 and Brinkley, supra, at p. 3. In this case, the same law firm is involved in both the workers’ compensation defense and the defense of this case. A coordinated and considerate effort by counsel for the defense could have avoided this issue with the exercise of consultation with his two respective defense clients and plaintiff’s counsel. In that instance, one comprehensive omnibus defense physical examination could have been conducted addressing both cases and causation and yet this has not yet been done nor even attempted!

The court is not unmindful of the spiraling costs of litigation. If such an effort to conduct one coordinated physical examination of the plaintiff was done perhaps both of the respective defendants represented by the same defense counsel could evenly divide the costs of the IME thus saving the time, resources and expense of two consecutive plaintiff physical exams! Additionally, defense counsel could save both defense clients billable hours by preparing one attorney to conduct the doctor’s deposition for both purposes. It is beyond cavil that defense counsel’s ability to save their clients time, costs, expenses and billings is certainly worth exploring as part of their professional obligation to their respective clients.

Counsel for the defense have argued that if the defendant in the workers’ compensation claim and this case has separate counsel they would clearly have had a right to two separate independent medical examinations. This court does not agree. The considerations of costs, time, expenses, plaintiff privacy, fairness and judicial economy exist even where there are separate defense counsel. Admittedly, it is more difficult to coordinate one IME where there are separate counsel, but this is still a desirable process with a cost effective outcome. If this were not the case, then using the same firm as defense counsel in both the personal injury case and the workers’ compensation case with a common plaintiff/claimant might represent a potential conflict of interest for a defense firm performing both defenses.

Common sense, judicial economy, the minimization of costs and expenses to the defense clients and perhaps most importantly, the protection of the plaintiff’s right to privacy envisioned by Pa.R.C.P. 4010(a) dictates only one logical result and that is conducting only one comprehensive omnibus independent medical examination addressing all the injuries flowing from both the auto accident herein and the workers’ compensation injury addressed by Judge William J. Hall. (See exhibit “A”.) Certainly, such an approach can be crafted to address questions of causation and severity as to which incident, if any, caused what proportions of the plaintiff’s alleged injuries.

Proceeding in such a manner addresses the issues of fair play envisioned by Pa.R.C.P. 4010(a) by balancing the defendant’s rights with those of the plaintiff’s right to privacy. Therefore, it is the ruling of this court that defense counsel is ordered to coordinate the performance of one comprehensive omnibus physical examination of this plaintiff which shall be performed in such a manner as to address both this cause of action and the workers’ compensation action. If the physical examination for the compensation claim has already been conducted then the defendant in this case shall be entitled to request a supplemental report. If the physical exam of the plaintiff has not yet been performed than one comprehensive omnibus defense physical examination should be coordinated and conducted.

In the absence of a new injury since an initial examination or the concealment of an injury by the plaintiff, the law dictates such a result and therefore an appropriate order follows.

And now to wit, March 27, 2001, upon consideration of plaintiff’s motion to preclude duplicative independent medical examinations and the able written and verbal arguments of counsel both in support of and in opposition thereto and in accordance with the foregoing memorandum, it is hereby ordered and decreed that plaintiff’s motion to preclude duplicative independent medical examinations is granted.

It is further ordered that defendant will be allowed to conduct one comprehensive omnibus independent medical examination with a physician of their own choosing. Said physical examination of the plaintiff will address all necessary issues both in regard to the subject auto accident of June 26, 1997 and the interplay, if any, with the workers’ compensation incident of March 26, 1998.

Any further requests for supplemental examinations will be met with the heightened scrutiny required by law.

The parties are also ordered to cooperate with each other and consult with their clients and proceed in a manner consistent with this memorandum and order.

EXHIBIT “A”

HALL, WCJ, March 12, 2001-

FINDINGS OFFACT

(1) The employer/insurer filed a petition for physical examination with the Bureau of Workers’ Compensation alleging claimant was requested to submit to a physical examination on December 23, 1999 by Dr. Thomas Byron and claimant refused or failed to appear for said examination.

(2) Claimant has not been examined by a physician chosen by the employer/insurer.

(3) Claimant should be examined by a physician chosen by the employer/insurer to determine the extent of claimant’s injury and disability, if any.

(4) Employer/insurer’s request for a physical examination of the claimant is reasonable under the Act and should be granted.

CONCLUSIONS OF LAW

(1) All parties to these proceedings are bound by the provisions of the Workers’ Compensation Act, as amended.

(2) Employer/insurer’s request for a physical examination of the claimant is reasonable under the Act and claimant shall submit to an examination by Dr. Thomas Byron at such time, date and place as designated by the employer/insurer. In the event claimant fails to comply with this order, compensation payments may be suspended by subsequent order.

ORDER

And now, March 12, 2001, employer/insurer’s petition for physical examination is hereby granted.

Claimant is ordered and directed to submit to a physical examination by Dr. Thomas Byron, such independent medical expert as designated by the employer/insurer, upon proper notice of that name of the physician and the date, time and place of the examination. Failure to comply with this order could result in the issuance of an order suspending claimant’s workers’ compensation payments.

      . The court has noted that the defendants’ law firm has filed a motion to compel a physical examination in the workers ’ compensation proceeding before Judge William J. Hall pursuant to section 314 of the Workers’ Compensation Act 77 P. S. §651. That motion was granted on March 12, 2001 and a copy of Judge Hall’s decision and order is partially attached hereto and incorporated herein as exhibit “A.”


author: WETTICK, J.,

text:
    Dacar Chemical Products Co. v. Comtech Industries Inc.
    C.P. of Allegheny County,
    no. GD00-19687.

      Dorothy A. Davis and David W. Gray, for plaintiff.

      Kathleen Smith-Delach, for defendant.
    April 23, 2001
   WETTICK, J.,

Defendant has filed an appeal to the Superior Court of Pennsylvania from a December 15, 2000 court order which I entered denying defendant’s request to file an appeal from a district justice judgment nunc pro tunc. This opinion setting forth the reasons for my ruling is filed pursuant to Pa.R.A.P. no. 1925.

Dacar Chemical Products Company filed a complaint with District Justice Daniel R. Diven at CV-0000319-00 to recover money due for chemicals described in invoices that were allegedly delivered to defendant. At the same time, Dacar filed a second complaint with District Justice Diven at CV-0000320-00 to recover money due for chemicals described in other invoices that were allegedly delivered to defendant.

District Justice Diven heard both complaints on October 19, 2000. At CV-0000319-00, he entered a judgment for Dacar in the amount of $7,941.66. At CV-0000320-00, he entered a judgment for Dacar in the amount of $7,020,08.

Defendant filed a timely appeal from the judgment entered at CV-0000320-00. However, no, appeal was filed as to the judgment entered at CV-0000319-00. On November 27, 2000, Dacar filed a praecipe for entry of judgment with the prothonotary of Allegheny County resulting in entry of a judgment in its favor in these proceedings at GD00-19687 in the amount of $7,941.66 plus interest and costs.

Defendant’s petition alleges that Mr. Grose, defendant’s president, appeared at the district justice proceedings without counsel. He contacted counsel upon receiving the results of the district justice hearing. He was instructed by counsel to bring in all papers with regard to what had occurred at the district justice hearing.

Mr. Grose brought to the attention of his lawyers only the papers for the district justice proceedings filed at CV-0000320-00. He neglected to furnish papers regarding the action at CV-0000319-00, so his attorneys did not know that there had been two proceedings. Thus, they filed an appeal only from the judgment entered at CV-0000320-00. Defendant’s counsel allege that they would also have filed an appeal from the other judgment if they had known of these other proceedings. The petition to open further alleges that the defenses raised in the action at GD00-13965 are valid defenses to the invoices for which plaintiff sought recovery at both CV-0000319-00 and CV-0000320-00. In its petition, defendant requested that I instruct the prothonotary to accept an appeal nunc pro tunc and that I open and/or strike the judgment entered at GD00-19687.

There is no basis for striking the judgment. A judgment debtor may not attack a judgment entered by a district justice through a petition filed in the common pleas court to open that judgment. Anderson v. Centennial Homes Inc., 406 Pa. Super. 513, 518, 594 A.2d 737, 740 (1991).

I now consider the request that I permit an appeal nunc pro tunc.

Plaintiff relies on the final sentence of Pa.R.C.P.D J. no. 1002A, which provides “[t]he prothonotary shall not accept an appeal from the aggrieved party which is presented for filing more than 30 days after the date of judgment without leave of court and upon good cause shown.” (emphasis added) It is defendant’s position that defendant was entitled to create a record to convince me that defendant had a reasonable explanation or legitimate excuse for its failure to file a timely second notice of appeal. I did not give defendant the opportunity to submit evidence that might establish a reasonable explanation or legitimate excuse for its failure to file an appeal from the second district justice judgment because I believe that the “good cause shown” requirement of Rule 1002A requires a showing of fraud, a breakdown in the court machinery, or extraordinary circumstances.

Prior to June 25, 1992, District Justice Rule 1002 read as follows:

“Rule 1002. Time And Method Of Appeal
“A party aggrieved by a judgment may appeal therefrom within 30 days after the date of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the state court administrator.
“Note
“The 30-day limitation in this rule is the same as that found in the Judicial Code, section 5571(b), 42 Pa.C.S. §5571(b), as amended by section 10(67) of the Judiciary Act Repealer Act, Act of April 28, 1978, PL. 202, no. 53. The method of appeal is by filing with the prothonotary a ‘notice of appeal’ on a form to be prescribed by the state court administrator. Copies of this same form will be used for service under Rule 1005. This permits use of the same form for filing and service. No useful purpose would be served by having two forms, one called an ‘appeal’ for filing and another called a ‘notice of appeal’ for service. No transcript of the record of the proceedings before the district justice is to be filed on appeal, for the proceedings on appeal are de novo.”

Through a March 27, 1992 amendment, effective June 25, 1992, Rule 1002 was amended to read in its entirety as follows:

“Rule 1002. Time And Method Of Appeal
“A party aggrieved by a judgment may appeal therefrom within 30 days after the date of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the state court administrator. The prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than 30 days after the date of judgment without leave of court and upon good cause shown, (new—emphasis added)
“Note
“The 30-day limitation in this rule is the same as that found in the Judicial Code, section 5571(b), 42 Pa.C.S. §5571(b), as amended by section 10(67) of the Judiciary Act Repealer Act, Act of April 28,1978, RL. 202, no. 53. The method of appeal is by filing with the prothonotary a ‘notice of appeal’ on a form to be prescribed by the state court administrator. Copies of this same form will be used for service under Rule 1005. This permits use of the same form for filing and service. No useful purpose would be served by having two forms, one called an ‘appeal’ for filing and another called a ‘notice of appeal’ for. service. No transcript of the record of the proceedings before the district justice is to be filed on appeal, for the proceedings on appeal are de novo.”

Paragraph 20 of explanatory comment—1992 to Pa.R.C.P.D J. no. 206 explains the reason for the amendment to Rule 1002: “Rule 1002 shifts the burden to allow an untimely appeal from the appellee to the appellant by providing that the prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than 30 days after the date of judgment without leave of the court and upon good cause shown.”

Through a March 28, 1996 amendment, effective March 29, 1996, Rule 1002 was amended to read as follows:

“Rule 1002. Time And Method Of Appeal
“(A) A party aggrieved by a judgment for money, or a judgment affecting the delivery of possession of real property arising out of a nonresidential lease, may appeal therefrom within 30 days after the date of the entry of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the state court administrator together with a copy of the notice of judgment issued by the district justice. The prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than 30 days after the date of judgment without leave of court and upon good cause shown.
“(B) A party aggrieved by a judgment for the delivery of possession of real property arising out of a residential lease may appeal therefrom within 10 days after the date of the entry of judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the state court administrator, together with a copy of the notice of judgment issued by the district justice. The prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than 10 days after the date of judgment without leave of court and upon good cause shown.
“Note
“The 30-day limitation in subdivision A of this rule is the same as that found in the Judicial Code, section 5571(b), 42 Pa.C.S. §5571(b), as amended by section 10(67) of the Judiciary Act Repealer Act, Act of April 28, 1978, RL. 202, no. 53. The 10-day limitation in subdivision B of this rule is designed to implement the time for appeal set forth in section 513 of the Landlord and Tenant Act of 1951 (Act no. 1995-33, approved July 6, 1995). The two subdivisions of this rule are intended to clarify that where the right of possession of residential real estate is at issue, the shorter, 10-day period for appeal applies; where the judgment from which the appeal is taken is a judgment only for money or a judgment affecting a nonresidential lease, under these rules, the 30-day period of time for appeal applies.”

As the note states, the amendment was made because of the amendments to the Landlord and Tenant Act (68 P.S. §250.513) which require an appeal to a common pleas court from a judgment of a lower court involving a right of possession arising out of a residential lease to be filed within 10 days after the entry of the judgment.

Prior to the 1992 amendment to Rule 1002, the case law provided that a common pleas court may not permit an appeal nunc pro tunc from a district justice judgment in the absence of fraud or a breakdown in the court machinery. See Goldberg v. Goldberg, 315 Pa. Super. 333, 461 A.2d 1307 (1983):

“The judiciary has little power to alter times affixed by the legislature for filing appeals.... Statutory provisions for appeal must be strictly complied with,... mere hardship will not warrant appeals nunc pro tunc or any extension of the period within which to file an appeal.... Only two exceptions permitting appeals nunc pro tunc can be carved from these nearly impenetrable rules: (1) where a party is prevented from filing a timely appeal due to a breakdown or fraudulent activity within the court system; . . . and, (2) where a criminal defendant’s failure to file an appeal is the result of his counsel’s ineffectiveness.” Id. at 336, 461 A.2d at 1308-1309. (citations omitted)

Defendant contends that the fraud/breakdown in the court machinery standard is no longer applicable because of the provision within amended Rule 1002 that the prothonotary shall not accept an appeal, which is presented for filing more than 30 days after the date of judgment, without leave of court “upon good cause shown.” Defendant contends that this amendment directs the courts to utilize a “cause shown” standard.

I reject this reading of Rule 1002 for several reasons.

First, according to the explanatory note, the purpose of the amendment was to shift the burden from the appellee to the appellant. The note does not suggest that it was to relax the appellant’s burden. Consequently, the language “upon good cause shown” simply means that a notice of appeal may not be filed more than 30 days after the entry of the district justice judgment unless the court, applying the existing legal standard, permits an appeal nunc pro tunc.

Second, the first sentence of the note to each of the three versions of Rule 1002 states that the “30-day limitation period in [subdivision A of] this rule is the same as that found in the Judicial Code, section 5571(b)....” Section 5571(b) has not been amended. Thus, if the 1992 amendment to Rule 1002 was intended to adopt a more liberal standard, there would have been either a modification of this sentence of the note or an explanation as to how a more relaxed standard for permitting a late appeal is now consistent with section 5571(b).

Third, I would not have expected the Supreme Court, without any explanation in its explanatory note, to alter a standard for permitting a late appeal (breakdown in the court machinery/fraud) that is utilized in construing virtually all rules of procedure and legislation setting appeal deadlines. See e.g., Union Electric Corp. v. Board of Property Assessment, Appeals and Review of Allegheny County, 560 Pa. 481, 746 A.2d 581 (2000); Appeal of Richard Greist, 431 Pa. Super. 188, 636 A.2d 193 (1994); Lough v. Spring, 383 Pa. Super. 85, 556 A.2d 441 (1989); Morrisons Cove Home v. Blair County Board of Assessment Appeals, 764 A.2d 90 (Pa. Commw. 2000), and Smith v. PennDOT, 749 A.2d 1065 (Pa. Commw. 2000).

Fourth, the filing of an appeal from a district justice judgment to the common pleas court is governed by 42 Pa.C.S. §5571(b), which provides that “an appeal from a tribunal or other government unit to a court . . . must be commenced within 30 days after the entry of the order from which the appeal is taken.” While section 5571(a) provides that the “time for filing an appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review of a quasi-judicial order, in the Supreme Court, the Superior Court or the Commonwealth Court shall be governed by general rules,” it provides for the 30-day statutory appeal period within 42 Pa.C.S. §5571(b) to govern appeals to other courts. Since it is the legislature, rather than the Supreme Court, that sets the appeal period for appeals of district justice judgments, it is questionable whether the Pennsylvania Supreme Court would have the authority to promulgate a general rule that substantially waters down the statutory 30-day appeal period by utilizing a standard that permits a common pleas court to allow a late appeal without a showing of exceptional circumstances. See generally, Stellar Construction Inc. v. Sborz, 561 Pa. 124, 128, nn.4, 5, 748 A.2d 667, 669 nn.4, 5 (2000). Thus, without clearer language, Rule 1002 should not be construed to establish an appeal period that may conflict with section 5571(b).

Finally, defendant’s reliance on Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), is misplaced because Bass, as construed in later opinions, is limited to extraordinary circumstances. See Union Electric Corp. v. Board of Property Assessment, Appeals and Review of Allegheny County, 560 Pa. 481, 746 A.2d 581, 583 (2000); Commonwealth v. Stock, 545 Pa. 13, 18, 679 A.2d 760, 763 (1996). Also, the Bass opinion was construing a general rule promulgated pursuant to 42 PS. §5571(a) governing the filing of an appeal from the Commonwealth Court to the Supreme Court. The Supreme Court’s construction of a general rule that the Supreme Court was authorized by statute to promulgate does not necessarily apply to appeals from a district justice judgment to a common pleas court, because section 5571(b)’s 30-day appeal period, rather than an appeal period provided in a general rule, governs this matter.

In summary, I entered my order of court denying defendant’s petition to strike/open a district justice judgment or to permit an appeal of a district justice judgment nunc pro tunc because the appeal was not timely filed and defendant is not claiming that there was fraud, a breakdown in the court machinery, or any other extraordinary circumstances.

      . Defendant’s petition refers to other litigation between the parties in this court at GD00-13965. Prior to the entry of the district justice judgment, defendant Comtech Industries Inc. had filed in this other litigation an answer, new matter, and counterclaim. This pleading was filed on behalf of Comtech by the law firm of Phillips & Faldowski.

      . As I previously discussed, the 1995 amendments to the Landlord and Tenant Act (68 P.S. §250.513(b)) require an appeal to the common pleas court of a district justice judgment involving an action for the recovery of possession of real property arising out of a residential lease to be filed within 10 days. The same issues will arise if the losing party seeks to file an appeal later than 10 days after the entry of the judgment upon a showing of a reasonable explanation or legitimate excuse for the failure to file a notice of appeal within 10 days.

      . While a court has limited power to alter the time for filing an appeal, more relaxed standards govern the granting of an appeal nunc pro tunc where the appellant filed a timely appeal but failed to meet other requirements for perfecting an appeal. See McKeown v. Bailey, 731 A.2d 628 (Pa. Super. 1999); Quarato v. Facelifters Ltd., 305 Pa. Super. 536, 451 A.2d 777 (1982).


author: FRIEDMAN, J.,

text:
    Advance Instruments Inc. v. Castelli
    C.P. of Allegheny County,
    no. GD 00-8073.

      Michael Jansen, for plaintiff.

      James R. Walker, for defendant.
    May 10, 2001
   FRIEDMAN, J.,

In the instant non-jury trial, plaintiff sought to recover what it characterizes as excess draw paid to defendant and not covered by the commissions actually earned by defendant prior to the termination of his employment.

Defendant, on the other hand, contends that the money he earned from plaintiff was a salary, not a draw, and seeks to recover unpaid wages and other damages under the Pennsylvania Wage Payment and Collection Law, 43 PS. §260.1 et seq.

Prior to the start of the non-jury trial before the undersigned, plaintiff moved in limine to have a ruling by another judge of this court declared “the law of the case.” The ruling supposedly was that a written contract was a “novation” of a prior oral agreement (rather than an inaccurate “memorialization” of it). The ruling was supposedly set forth in the order of the Honorable Eugene B. Strassburger III dated October 5, 2000, which dismissed Count I (replevin) of plaintiff’s complaint and also dismissed two counts of defendant’s counterclaim, Count II, breach of [an oral] contract [for a one-year period of employment] and Count III, unjust enrichment. Judge Strassburger let stand Count I of defendant’s counterclaim, the “claim under Pennsylvania Wage Payment and Collection Act,” apparently because of the factual dispute as to whether the regular biweekly payments to defendant by plaintiff constituted a draw or a salary. Also still pending is Count II of plaintiff’s complaint, breach of contract.

The order of Judge Strassburger makes no mention of a conclusion that the written contract is a “novation,” as plaintiff argued in its motion in limine. The only reference to the concept of a novation was in plaintiff’s motion for partial summary judgment. However, a review of defendant’s counterclaim, plaintiff’s motion for partial summary judgment, and Judge Strassburger’s order reveals that Judge Strassburger dismissed Count II of the counterclaim most probably because of the presumption that employment is at will unless there is an express agreement, usually in writing, for a definite term. An oral agreement for a specific length of employment can rarely be proven and apparently defendant did not produce evidence in response to plaintiff’s motion which, if believed, would make out an oral contract for one year of employment as he alleged in Count II of his counterclaim.

Similarly, Count III of defendant’s counterclaim, for unjust enrichment, was probably dismissed based on the well-settled principle that a claim based on an express contract (whether oral or written) can only be made out by proving that contract and not by proving a claim in quantum meruit or unjust enrichment. See for example Standard Pennsylvania Practice §22.7.

In other words, there is nothing in Judge Strassburger’s order to suggest that he regarded the written employment agreement as either binding or as the complete agreement between the parties or as a “novation.” Plaintiff’s motion in limine regarding deference to his order was therefore properly denied.

Turning now to the trial itself, the credible evidence shows the following:

The contract between the parties was initially an oral one, reached by defendant and Dwight Kelley, the son of Robert R. Kelley, the CEO of plaintiff. Dwight Kelley who hired defendant did not testify nor was any explanation given for his absence. Only Robert E. Kelley, who had nothing to do with defendant’s hiring until after the fact, testified. He testified to a written document that he said defendant had to sign because plaintiff required all its salespeople to sign. Robert Kelley did not testify that he and plaintiff reached a different agreement from the oral one defendant and Dwight Kelley had reached earlier. Were the written contract unquestionably the full agreement of the parties, that would present no problem and Judge Strassburger would probably have granted plaintiff’s motion for partial summary judgment as to the wage claim as well. However, the credible evidence showed that the oral agreement reached by defendant and Dwight Kelley was not the same as the document Robert Kelley forced defendant to sign.

Defendant believed he was hired to develop a sales territory for a particular manufacturer’s products, which were new to plaintiff but not to defendant, in exchange for a salary of $70,000 per year plus reimbursed auto expenses of $675 per month. Plaintiff’s only witness, Robert Kelley, assumed defendant was hired to be an ordinary salesman. The only person who would be able to testify as to whether defendant was hired to develop the territory or to be an ordinary salesman for developed territory, was Dwight Kelley. Furthermore, only Dwight Kelley knows whether his oral arrangement with defendant was for a salary or a draw against commissions. His failure to testify without any explanation of his non-appearance raises the inference that his truthful testimony would be unfavorable to plaintiff.

Defendant testified, credibly and without rebuttal, that salesmen are generally paid a draw against commission when a sales territory has been developed. He explained that plaintiff had just obtained the account of the manufacturer at issue, Foxboro, and he, defendant, had been hired by plaintiff to handle those products in the West Virginia area because of his experience with the products. (Defendant also said he believed that Foxboro had arranged for his hiring by plaintiff after Foxboro’s relationship with its previous sales representative, for whom defendant worked, had ended amicably. Robert Kelley was apparently unaware of such an arrangement but, again, he was not the person at plaintiff who was involved in the hiring of defendant.) Defendant testified that the territory was not a successful one for the manufacturer’s representative for Foxboro who preceded plaintiff. Defendant also testified that plaintiff had little experience with the territory and little or no experience with Foxboro’s products. This fact is undisputed, even by Robert Kelley. According to defendant, and again unrebutted, a salesman who is developing a territory initially gets paid a salary because there is no history to determine likely sales amounts and the consequent commission amounts and draws. Once the territory is “developed,” its value is more accurately ascertainable.

The court finds that the written contract was presented by Robert E. Kelley to defendant several days after he was hired under an oral contract with Dwight Kelley. The court also finds that the written contract did not contain the full agreement of the parties. In particular the court finds that schedule A, “Compensation of employee,” incorrectly designates the biweekly payments to defendant as a draw against commission, when plaintiff’s agreement with defendant as negotiated by Dwight Kelley called for a $70,000 salary plus auto expenses, at least until the territory was developed. Defendant is credible when he says that he believed, based on a lawyer’s advice in a different context, that the contract pressed upon him by Robert Kelley was unenforceable and that he therefore felt that signing it (even though parts of it were inaccurate based on the oral agreement by which he was hired) was of no consequence. This adequately explains why he signed something that contained an incorrect designation for his salary. Whether or not his belief was correct about the law is insignificant.

Although he never testified to this, Robert Kelley appears to have believed that the West Virginia sales territory for Foxboro products was already “developed” when plaintiff became its sales representative. The credible evidence showed no support for this apparent belief. Plaintiff presented no rebuttal, such as evidence from Foxboro that the territory had a history of sales that would warrant $70,000 in commissions, or evidence in either plaintiff’s case in chief or in rebuttal that defendant did orally agree to a draw-against-commissions arrangement. Plaintiff has not met its burden on its own claim.

Plaintiff’s claim for return of excess draw must therefore be denied. The corollary to this decision is that defendant’s counterclaim under the Pennsylvania Wage Payment and Collection Law must be granted, as follows:

(1) Unpaid salary for two weeks from March 19,2000 through March 31, 2001. The gross amount of this salary is $2,693.

(2) Liquidated damages of the greater of $500 or 25 percent of the total amount of wages due. This amount is $500.

(3) Attorneys fees. This amount will be decided by petition and answer as stipulated to at the beginning of trial. See scheduling order filed herewith.

A verdict must be entered accordingly in favor of defendant on Count II of plaintiff’s complaint and Count I of defendant’s counterclaim. See verdict slips separately filed.

ORDER

And now, to-wit, May 10, 2001, the question of the amount of attorneys fees to be awarded will be decided as follows:

(1) Defendant’s petition with counsel’s detailed affidavit of hourly rates and the itemization of time spent by each lawyer or paralegal is to be filed within 10 days of the date hereof.

(2) Plaintiff answer, with a counter affidavit, if any, is to be filed within 20 days of the date hereof.

(3) Once the court has reviewed the petition, answer and affidavits, it will notify the parties whether a hearing will be held and whether argument will be oral or by briefs.

      . It should also be noted that the court assumes such a belief because the only alternative is that Robert Kelley was untruthful, a finding the court does not need to make.


author: HERRON, J.,

text:
    McLafferty v. Cohen

      Neil I Murray, for plaintiff.

      Kenneth T. Levine, for defendant.
    May 10, 2001
   HERRON, J.,

Plaintiff David P. McLafferty has filed a petition to confirm liquidator’s award and order and an amended petition to enforce liquidator’s order (collectively, petitions). Because the liquidator’s decision is not a valid arbitration award, it cannot be confirmed, and the court is issuing a contemporaneous order denying the petitions.

BACKGROUND

From May 1, 1993 until April 1, 1997, defendants Craig A. Cohen and Lawrence M. Stein and plaintiff David R McLafferty practiced law together as partners in the firm of McLafferty, Cohen & Stein. The terms of the partnership were set forth in a general partnership agreement dated May 1, 1993 and signed by the three parties.

Article eight of the agreement addresses termination of the partnership:

“In the event that any partner wishes to terminate his relationship with the partnership, he shall give all of the partners 90 daysf] written notice of his intent to do so. In any event, other than that described in paragraph 11.01 where a partner notifies the other partners in writing of his intent to terminate his relationship with the partnership, then the partnership shall be terminated 90 days following the date of the notice (the termination date) and shall be liquidated as provided in paragraph 8.02.” Agreement at ¶8.01.

The agreement also provides for the appointment of a liquidator to assist in the winding up of the partnership (liquidator):

“In the event that the partnership is terminated as described in paragraph 8.01, one or more liquidators shall be appointed who shall have authority to wind up the affairs of the partnership and to make distribution to the creditors of the partnership and the partners as provided in this paragraph. The liquidator(s) shall be any person or persons who the partners unanimously designate to serve in that capacity. In the event that no such unanimous agreement is reached by the termination date, then a liquidator shall be selected by arbitration pursuant to the provisions of the American Arbitration Association whose decision shall be binding, final and not appealable. In the event any liquidator selected pursuant to this process shall resign or be unable to serve, then a replacement liquidator shall be selected by the same process. The fees of the liquidator shall be paid by each partner, pro rata, in accordance with the partnership percentages set out in paragraph 3.01(a) of this agreement.” Agreement at ¶8.02(a).

McLafferty gave notice of his intent to terminate the partnership pursuant to paragraph 8.01 on April 1,1997. On May 24,1999, over two years later, McLafferty filed a demand with the American Arbitration Association for the appointment of a liquidator. The AAA responded by appointing Louis Coffey as liquidator on August 13, 1999.

After Coffey’s appointment, McLafferty requested that he resolve a dispute over the interpretation of paragraph 8.02(g)(iii) of the agreement, which addresses the distribution of post-dissolution contingency fees:

“[F]ifty percent of the remaining balance [after the deduction of certain costs and expenses] shall be paid to the partnership to be distributed as partnership property by the liquidator as provided in paragraph 8.02(b) hereof and 50 percent of the remaining balance shall be paid directly to the handling attorney.”

McLafferty argued that, under paragraph 8.02(g)(iii), the handling attorney should receive 50 percent of any balance and the other two partners should divide the partnership’s 50 percent of the balance. The defendants disputed this interpretation, maintaining that the 50 percent paid to the partnership was to be treated like all other partnership assets and divided equally among all three partners. The defendants further objected to Coffey adjudicating the dispute and asserted that paragraph 8.02(a) does not authorize the arbitration of disputes. In spite of these objections, Coffey scheduled a liquidation hearing for June 20, 2000 to review paragraph 8.02(g)(iii).

Four days before the hearing was to be held, McLafferty’s counsel sent a letter to Coffey withdrawing McLafferty’s request for an interpretation of paragraph 8.02(g)(iii). At the hearing, Coffey announced that he would abstain from reviewing the provision in question, as McLafferty had withdrawn his request that he do so. At the hearing, however, McLafferty’s counsel stated once again that his client disputed the defendants’ interpretation of paragraph 8.02(g)(iii) but offered no alternative manner for resolving the dispute. Coffey ultimately issued a letter that ordered the defendants to place $70,948.01 in disputed fees into an escrow account and to distribute $110,094.51 (funds) to Mc-Lafferty based on the conclusion that “none of the parties dispute that he is entitled to receive” this amount.

The defendants filed a complaint in a related matter seeking a declaratory judgment as to the rights of the parties under certain provisions of the agreement, including paragraph 8.02(g)(iii), as well as the effect of these provisions on the distribution of post-dissolution contingency fees. McLafferty filed preliminary objections, all of which were denied by the court. In considering the objections, the court concluded that the funds dispute is not within the purview of the agreement’s arbitration clause and that the court therefore had subject matter jurisdiction.

On December 14, 2000, McLafferty filed his original petition, which requested that the court confirm the decision and order the distribution of the funds. Mc-Lafferty filed his amended petition on April 6, 2001, which reiterates the original requests and also asks the court to order that the fees be placed in an escrow account. The court heard arguments on the petitions on May 9, 2001

DISCUSSION

No Pennsylvania statute or case authorizes the confirmation of a liquidator’s award, although 42 Pa.C.S, §7342 allows a court to confirm a common-law arbitrator’s award. Thus, the decision can be confirmed only if it qualifies as an arbitration award.

For the decision to be deemed an arbitration award, either the subject of the dispute must fall within the scope of the agreement to arbitrate in paragraph 8.02(a), with Coffey functioning as a liquidator and an arbitrator, or the term “arbitration award” must be construed to encompass a liquidator’s award, including the decision. It is unclear which path McLafferty is urging the court to take to confirm the decision. In either case, however, the decision is not a valid arbitration award, and, McLafferty’s assertions to the contrary, the petitions must be denied.

I. The Agreement to Arbitrate Does Not Cover Disputes over Interpretation of the Agreement

In determining their scope, “[agreements to arbitrate are to be strictly construed and should not be extended by implication” PBS Coal Inc. v. Hardhat Mining Inc. 429 Pa. Super. 372, 377, 632 A.2d 903, 905 (1993). See also, Midomo Co. Inc v. Presbyterian Housing Development Co., 739 A.2d 180, 190 (Pa. Super. 1999) (arbitration agreements are to be confined to the “clear, express and unequivocal intent of the parties as manifested by the writing itself’); Brown v. D. & P. Willow Inc., 454 Pa. Super. 539, 546-47, 686 A.2d 14, 18 (1996) (noting that forcing a party into arbitration without its consent is “violative of common law and statutory principles” and a “curtailment of one’s substantive and due process rights”).

In the objections, it appeared McLafferty was arguing that paragraph 8.02(a) provided for the arbitration of all liquidation disputes and that the matter was not properly before the court. In overruling the objections in Cohen v. McLafferty, July 2000, no. 923 (C.P. Phila. Sept. 29, 2000) (Herron, J.), the court reasoned that the dispute over the funds did not fall within the agreement’s arbitration provision:

“It is clear that the parties have agreed to arbitration to resolve disputes over who the liquidator will be. As such, the court does not have jurisdiction to address the selection of a liquidator. In contrast to McLafferty’s claims, however, nothing in section 8.02(a) requires arbitration over interpretations of the agreement. Since an agreement to arbitrate must be narrowly construed, the provisions mandating arbitration to select a liquidator cannot be blurred into the preceding sentences of the paragraph. Consequently, the arbitration provision does not require the arbitration of disputes over either the winding up process or interpretation of the agreement. Because the issue in controversy does not fall within the scope of the parties’ agreement to arbitrate, nothing precludes the court from exercising subject matter [jurisdiction], and McLafferty’s objection is overruled.” Slip op. at 7.

The same reasoning may be applied here, as Mc-Lafferty has failed to show that the dispute over the fees and the funds falls under the paragraph 8.02(a) agreement to arbitrate.

II. There Is No Basis for Treating a Liquidator’s Award As an Arbitration Award

The argument that the term “arbitration award” encompasses the decision and other liquidators’ awards must also fail. There is no case law to support a definition of “arbitrator” that includes a liquidator, nor is there any authority that defines an arbitration award to include a liquidator’s decision. Because the decision is not an arbitration award, it is not governed by the confirmation process in section 7342 or any other statute the court is aware of. Thus, the court cannot confirm the decision.

The only arguably valid reason for giving McLafferty access to the funds is the fact that in the past, the defendants appear to have admitted McLafferty’s right to the funds. This may have provided a rationale for the decision, but it cannot allow the court to overlook the fact that the decision is not an arbitration award and that there is no valid arbitration award to be enforced here. As result, even if the defendants have conceded that Mc-Lafferty is entitled to the funds, the proper way to secure their disbursal is not a petition to confirm the decision.

CONCLUSION

The decision is not a valid arbitration award. As such, there is no Pennsylvania statute or case law that allows its confirmation, and the petitions are denied.

ORDER

And now, May 10,2001, upon consideration of plaintiff David P. McLafferty’s petition to confirm liquidator’s award and order and amended petition to enforce liquidator’s order, defendants Craig A. Cohen and Lawrence M. Stein’s responses thereto and arguments before the court, and in accordance with the memorandum opinion being filed contemporaneously with this order, it is hereby ordered and decreed that the petitions are denied.

      . Paragraph 11.01 of the agreement addresses death, disability and retirement.

      . McLafferty’s demand for arbitration requests, as relief, “[a] complete accounting of the former partnership contingency and hourly fee files in the possession of Cohen and Stein, and a complete accounting of all fees received on former partnership cases by Cohen and Stein, including reimbursement of costs, which may be approximately $50,000 or greater.” No reference is made to an interpretation of the agreement.

      . Paragraph 8.02(b) of the agreement sets forth the order of priority for distribution of partnership assets. According to the provision, after assets are used to pay creditors, to establish contingent reserves, to repay partner loans and to return capital, each partner will receive one-third of the remaining amount.

      . In response, the defendants filed a petition for a preliminary injunction to enjoin the arbitration on November 24, 1999. The court denied this petition on January 11,2000.

      . The conclusions reached by Coffey are referred to as the “decision.”

      . Cohen v. McLafferty, C.P. Phila., July 2000, no. 923.

      . Essentially, finding that the decision is a valid arbitration award requires a broad interpretation of either paragraph 8.02(a)’s agreement to arbitrate or the term “arbitration award.”

      . McLafferty relies on only two cases, neither of which supports enforcing the decision. The first is Brown v. D. & P. Willow Inc., 454 Pa. Super. 539, 546-47, 686 A.2d 14, 18 (1996), in which the court examined a fee dispute between an attorney and a former client and focused on whether compulsory arbitration was appropriate where the former client had not consented to the process. The second case is the unpublished Superior Court memorandum opinion in Hamati-Sayegh v. Lang, which McLafferty, relying exclusively on a description of the opinion in The Legal Intelligencer, has failed to attach to his petitions. In that case, the Superior Court ordered funds disputed between two attorneys placed in an escrow account under circumstances substantially different from those outlined here. Even if this case were on point, however, it would be irrelevant, as unpublished Superior Court’s memo randum opinions have no precedential value. Commonwealth v. Phinn, 761 A.2d 176, 179 (Pa. Super. 2000). In sum, there is no need to examine either case in further detail.

      . Opinion available at http://courts.phila.gov/cpcvtcomp.htm.

      . During the liquidation hearing, Cohen acknowledged that McLafferty was entitled to compensation “in the neighborhood of $110,000.” Notes at 27. In addition, in a letter attached to the petitions and dated May 12, 2000, Stein states that “[mjonies to which [Mc-Lafferty] is entitled ... is being held in a separate escrow account at First Union Bank.” An attachment to the letter sets forth $110,124.50 as the “Sub total of monies owed to DPM.” The defendants now deny that McLafferty is entitled to the funds. Defendants’ response at ¶9.