author: CURRAN, Member,

text:
    Office of Disciplinary Counsel v. Spangler

      Disciplinary Board Docket no. 81 D.B. 2001, 89 D.B. 2002.
    February 9, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

CURRAN, 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 June 19, 2001, petitioner, Office of Disciplinary Counsel, filed a petition for discipline at no. 81 D.B. 2001 against respondent, Jeffrey Thomas Spangler. The petition charged respondent with professional misconduct based on his conviction of simple assault and recklessly endangering another person. Respondent filed an answer to the petition for discipline on July 11, 2001.

A disciplinary hearing was held on October 22,2001, before Hearing Committee 2.07 comprised of Chair Jay H. Karsch, Esquire, and Members Lester G. Weinraub, Esquire, and James Keath Fetter, Esquire. Respondent appeared pro se.

Petitioner filed a petition to open the record on October 27, 2001, so as to present additional evidence regarding a subsequent matter that occurred on October 22, 2001. Respondent did not object to the petition to open. On August 1, 2002, petitioner filed a petition for discipline at no. 89 D.B. 2002 against respondent charging him with professional misconduct based on his conviction of simple assault. Petitioner filed a motion to consolidate the petitions, which motion was granted by order of the Disciplinary Board dated September 6,2002.

A disciplinary hearing was held on January 28,2003, before Hearing Committee 2.07. Respondent was represented by Samuel C. Stretton, Esquire.

Following briefing by the parties, the committee filed a report on May 20, 2003, and recommended that respondent be suspended from the practice of law for a period of 18 months.

Respondent filed a brief on exceptions and request for oral argument on June 4, 2003. Petitioner filed a brief opposing exceptions on June 23, 2003.

Oral argument was held on August 13, 2003, before a three-member panel of the Disciplinary Board consisting of Robert E. J. Curran, Esquire, C. Eugene McLaughlin and Laurence H. Brown, Esquire.

This matter was adjudicated by the Disciplinary Board at the meeting of August 28, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania 17101, 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 the rules.

(2) Respondent was born in 1952 and was admitted to practice law in Pennsylvania in 1978. He currently resides at 313 Diller Road, Hanover, Pennsylvania. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court.

(3) On June 8, 2000, respondent became involved in an altercation as a pedestrian at an intersection. Respondent called a man driving a car an obscene name. Respondent then pulled out some mace that he carried with him and told the man that if he approached him, respondent would use it. Respondent then brandished a gun and threatened the man.

(4) On December 13, 2000, a Montgomery County jury found respondent guilty of simple assault by physical menace in violation of 18 Pa.C.S. §2701(a) and recklessly endangering another person in violation of 18 Pa.C.S. §2705.

(5) On December 18, 2001, prior to his sentencing in the above crime, respondent was involved in another incident where he kicked a woman’s vehicle and used obscene language. Respondent pleaded guilty to disorderly conduct and received a fine of $250.

(6) On March 7, 2001, respondent was sentenced to imprisonment for a term of 48 hours to 23 months, plus fines.

(7) On March 15,2001, respondent filed a motion for reconsideration of sentence.

(8) On April 2, 2001, respondent was re-sentenced to two years of probation, a fine of $500 and 24 hours of community service.

(9) The above convictions were the subject of petition for discipline no. 81 D.B. 2001, which disciplinary hearing was held on October 22, 2001. Respondent represented himself at the hearing.

(10) On October 27, 2001, petitioner filed a petition to open the record to present additional evidence regarding a subsequent matter that occurred on October 22, 2001, shortly before the disciplinary hearing took place.

(11) On October 22,2001, as respondent was en route to the disciplinary hearing at the District II office then in Blue Bell, PA, he was involved in a confrontation with two women walking a dog without a leash.

(12) After using offensive language, an exchange of words occurred between the dog owner and respondent. Respondent pulled out a can of mace and maced the woman and her dog.

(13) On June 3, 2002, in the Delaware County Court of Common Pleas, respondent pleaded guilty to simple assault by physical menace, in violation of 18 Pa.C.S. §2701(a)(l)(3).

(14) Respondent was sentenced to two years of probation.

(15) As a result of the October 22, 2001 incident, respondent was found in violation of the probation set by the court with respect to the December 13,2000 conviction. His probation was revoked and he was sentenced to time served to 23 months at the Montgomery County Correctional Facility.

(16) Respondent was released on March 1, 2002, and paroled directly into the Pennsylvania Hospital.

(17) After respondent’s incarceration, as a condition of his release from the Montgomery County Correctional Facility, he began treating with Dr. Steven Ager, a board certified psychiatrist. Respondent treated with Dr. Ager on a weekly basis from March 2002 until mid-August 2002.

(18) Respondent was treated for depression and prescribed the medication nortriptyline, which he voluntarily discontinued in November 2002.

(19) Respondent stopped treating with Dr. Ager because he could no longer afford the treatment and felt he was not receiving any benefits from it.

(20) Respondent currently takes Ativan for anxiety, which was prescribed by his physician in Hanover.

(21) Respondent currently lives with his parents in Hanover. He has not done any significant legal work since the disciplinary proceedings commenced as he indicated he is waiting for the outcome to be resolved.

(22) Respondent has no history of discipline.

(23) Respondent testified at the hearings.

(24) Respondent admitted that his conduct in all three incidents was inappropriate.

(25) Respondent believes that with respect to the October 21, 2001 incident he acted inappropriately but not criminally.

(26) By stipulation, two reports of Dr. Steven Ager were admitted into evidence.

(27) Dr. Ager indicated that although respondent is not completely cured, he has improved greatly and would benefit from continued psychotherapy.

(28) Dr. Ager opined that respondent would be able to practice law without detriment to the profession as long as he continues taking medication.

(29) Through stipulation, two letters of Dr. Robert Sadoff were presented by petitioner. Dr. Sadoff indicated that further treatment would benefit respondent and his prognosis would be better than if he were to discontinue treatment altogether.

(30) Two character witnesses appeared on behalf of respondent at the hearing on October 21, 2001. Eugene Tompkins is an attorney and high school friend of respondent. Marjorie Major-Cunius is a journalist who has known respondent since 1985.

(31) These witnesses testified to respondent’s reputation in the community as a law-abiding and truthful person, but were unaware of respondent’s altercation with the woman in the park, as it happened the morning of the hearing.

(32) Respondent did not present any character witnesses at the second hearing on January 28, 2003.

III. CONCLUSIONS OF LAW

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

(1) Simple assault by physical menace and recklessly endangering another person are “serious crimes” as defined by Pa.R.D.E. 214(j).

(2) Each of respondent’s convictions for a serious crime constitutes a per se basis for discipline under Pa.R.D.E. 203(b)(1).

(3) Respondent violated R.P.C. 8.4(b) by committing criminal acts that reflect adversely on his honesty, trustworthiness or fitness as a lawyer in other respects.

IV. DISCUSSION

This matter comes before the Disciplinary Board on consolidated petitions for discipline charging respondent with violation of the rules arising out of his convictions for simple assault and recklessly endangering another person. As with all disciplinary matters predicated on an attorney’s conviction of a serious crime, the sole issue to be resolved is the extent of discipline to be imposed on respondent. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982). Consideration is to be given to any aggravating or mitigating factors. Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999).

Respondent engaged in three incidents of violence which involved confrontations with others, two of which put others in fear of imminent serious bodily injury.

In the first incident, respondent was a pedestrian at an intersection and called a motorist by a foul name. The driver pulled over and approached respondent, who pulled a can of mace and then brandished a gun. The second incident happened five days after a jury convicted respondent for the aforementioned conduct. He kicked a car and used obscene language towards the driver of the car. In the third incident, which occurred on the morning of respondent’s disciplinary hearing for the aforementioned incidents, respondent got into a confrontation with a woman who was walking her dog without a leash. Respondent used mace on the woman and her dog.

Respondent’s misconduct was serious and the timing of the incidents illustrates respondent’s lack of remorse or recognition of the impact the misconduct would have upon him and the legal profession. The second incident happened mere days after he was convicted by a jury of similar misconduct. The third incident happened on the very morning of his disciplinary hearing addressing the sanction to be imposed for his initial misconduct. There is the expectation that respondent, on the day of his hearing, would have been more cognizant of his behavior and its effects. Respondent continued to act inappropriately, indeed criminally, as if he had learned nothing from the prior two incidents. While acknowledging that his conduct was inappropriate, respondent would not admit that his actions on October 22, 2001, were in violation of the law. He would only indicate that he had an encounter in the park, and there really was no harm. (N.T. 1/28/03 at 52.) When asked whether there was any excuse for his conduct he specifically stated that “there was no excuse for the lady attacking me on that day.” (N.T. 1/28/03 at 48.). When asked what he learned from the incident where he displayed a gun, respondent answered, “Don’t let him see the gun. In fact, let the gun alone.” (N.T. 1/28/03 at 52.)

Respondent does admit that he has a tendency to become angry and that he needs to stop being provocative.' Respondent received psychiatric treatment with Dr. Steven Ager pursuant to conditions of his release from incarceration, but he was only able to continue with this treatment for approximately seven months due to monetary issues and his feeling that he was not benefiting from treatment anymore. Respondent also stopped taking the medication that Dr. Ager prescribed for depression. Respondent currently does not go to a psychologist or psychiatrist. He takes Ativan for anxiety, which was prescribed by a family doctor.

The reports of Dr. Ager and Dr. Robert Sadoff both opine that respondent would benefit from continued therapy and medication. At this time, however, it appears based on his testimony, that respondent is either not financially able to afford treatment or does not believe further treatment is necessary. Dr. Ager specifically states that respondent has a good prognosis to avoid future assaultive behavior if he continues to take nortriptyline, which respondent has ceased to do.

Based on the totality of the record, the board is persuaded that a suspension of 18 months, as recommended by the Hearing Committee, is appropriate in this matter. This is a serious matter and there is little in the record that serves to mitigate the discipline. The testimony of respondent’s character witnesses is afforded little weight as they were not aware of the latest episode of confrontation committed by respondent. Respondent’s character, as shown by his conduct, has made him unfit to practice law. Office of Disciplinary Counsel v. Casety, 511 Pa. 177, 512 A.2d 607 (1986). Respondent’s prognosis is uncertain as he has stopped his medication and his psychotherapy. A suspension of 18 months will ensure that respondent has time to act on the changes he needs to make in his life. Further, respondent will be required to petition for reinstatement if he desires to practice law in the future. At that time he will have to prove his fitness.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Jeffrey Thomas Spangler, be suspended from the practice of law for a period of 18 months.

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 Rudnitsky did not participate in the August 26, 2003 adjudication.

ORDER

And now, May 24, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated February 9, 2004, the petition for review and responses thereto, the petition for review is denied and it is hereby ordered that Jeffrey Thomas Spangler be and he is suspended from the bar of this Commonwealth for a period of 18 months, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: SHEERER, Member,

license: Public Domain

text:
    Office of Disciplinary Counsel v. Evans

      Disciplinary Board Docket no. 152 D.B. 2000.
    December 16, 2002
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SHEERER, 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 July 19, 2001, petitioner, Office of Disciplinary Counsel filed a petition for discipline against Daniel J. Evans, respondent in these proceedings. The petition charged respondent with violations of the Rules of Professional Conduct and the Pennsylvania Rules of Disciplinary Enforcement arising out of his alleged misappropriation of entrusted funds. Respondent did not file an answer to the petition.

A disciplinary hearing was held on October 30,2001, before Hearing Committee 4.05 comprised of Chair Alan R. Krier, Esquire, and Members Sheila M. Ford, Esquire, and Marion Laffey Ferry, Esquire. Respondent appeared pro se. Petitioner introduced 23 exhibits, including a stipulation to most of the facts as alleged in the petition for discipline. Respondent testified but did not offer any exhibits.

After briefing by the parties, the committee concluded that respondent violated the rules as charged in the petition for discipline and recommended that respondent be disbarred.

No briefs on exception were filed by the parties.

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

II. FINDINGS OF FACT

The board makes the following findings of fact:

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

(2) Respondent was born in 1937 and was admitted to practice law in the Commonwealth of Pennsylvania in 1966. He maintains his office at 1302 Beaver Street, P.O. Box 556, Sewickley, Pennsylvania 15143.

(3) On or about April 23, 1996, Joan K. Youngquist (decedent) died testate, while a resident of Allegheny County, owning both real and personal property.

(4) Under terms of decedent’s will, respondent was named executor of her estate.

(5) In the will, Mia Dean, decedent’s daughter, was bequeathed all home furnishings, clothing, jewelry, and the car.

(6) It was directed in the will that all real estate belonging to decedent was to be sold, with the proceeds to be turned over to Chaplin-Mullaugh, or “such other money manager” as respondent saw fit, for investment during the term of the administration of the estate.

(7) The will further directed that, when the estate was settled, the balance for distribution was to be divided into five shares, one share to be distributed to Mrs. Dean and the remaining four shares to be distributed to a trustee of the Youngquist-Dean Family Education Trust for the benefit of decedent’s grandchildren in accordance with the terms of the trust.

(8) Mrs. Dean and her husband, John Dean, are the trustees of the trust.

(9) On or about April 26, 1996, letters testamentary were granted to respondent as executor of the estate.

(10) After his appointment as executor through about the end of October 1997, respondent sold the real estate located at 317 Hazel Lane, Sewickley, PA, and liquidated the stocks and bonds.

(11) The proceeds from the sale of the real estate were deposited by respondent to Mellon Bank account no. 143-8160 captioned “Estate of Joan K. Youngquist, Daniel J. Evans, exec.,” over which respondent had sole signatory authority.

(12) On or about July 19, 1996, respondent issued Mellon Bank check no. 125, drawn on the estate account, in the amount of $21,000 as payment of the inheritance taxes for the estate.

(13) From about December 1, 1996, through about August 11,1997, respondent made distributions from the estate account to Mrs. Dean and the trust in the total amount of $272,469.

(14) On or about January 21, 1997, respondent filed the inventory which listed the total value of the probate estate assets in the amount of $419,215.66, and non-probate assets valued at $88,937.28.

(15) On or about January 23, 1997, respondent filed the inheritance tax return.

(16) On the return, respondent claimed fees relating to the estate totaling $21,238.21, which included his executor’s fee and attorney’s fee of $10,000 each, and $1,238.21 for estate planning services rendered to decedent.

(17) The total inheritance tax due on the estate was $28,247.85.

(18) Subtracting the previous payment for inheritance taxes and discount in the total amount of $22,050, a balance for inheritance taxes was owed in the amount of $6,197.85.

(19) On or about January 24,1997, respondent issued check no. 190 drawn on the estate account in the amount of $6,197.85 as payment of the remaining balance on the inheritance taxes for the estate.

(20) By a notice dated April 14,1997, the Pennsylvania Department of Revenue informed respondent that the inheritance tax return was accepted as filed and there was a credit due to the estate in the amount of $55.26.

(21) By early December 1997, by checks made payable to himself or to cash, respondent had taken for his own use all remaining assets of the estate, which amounted to over $90,000 over and above the fees claimed by him.

(22) In or about January 1998, Mrs. Dean telephoned respondent to inquire on the status of the estate.

(23) Respondent told Mrs. Dean that there was “little left in the estate,” and he would forward a partial accounting to her.

(24) After payment of expenses listed on the inheritance tax return, including respondent’s fees, there should have been over $90,000 remaining in the estate, and respondent remained entrusted with those funds.

(25) Mrs. Dean did not then receive any accounting from respondent.

(26) In or about April 1998, Mrs. Dean requested that respondent provide her with information as to the status of the estate.

(27) Respondent did not respond to Mrs. Dean.

(28) Between April 1998 and December 1998, Mr. Dean telephoned respondent on at least two occasions to inquire as to the status of the estate and left messages on his answering machine for a return call.

(29) On one occasion respondent returned Mr. Dean’s call and stated that “nothing was left in the estate” and he would get to finalizing it.

(30) Respondent’s assertion concerning the estate assets was false, since over $90,000 should have remained in the estate.

(31) Between December 1998 and April 1999, Mr. and Mrs. Dean had no contact with respondent, nor did they receive the partial accounting for the estate which he had previously promised to send to them.

(32) By letter to respondent dated September 7,1999, Attorney Charles Humphreys, on behalf of Mr. and Mrs. Dean, requested that respondent expedite the closing of the estate and prepare an accounting for review by Mrs. Dean.

(33) Respondent did not provide Mrs. Dean with an accounting of estate assets, or otherwise respond to Attorney Humphreys’ letter.

(34) In a conversation with him on February 10,2000, respondent told Attorney Michael Wiethorn, who Mr. and Mrs. Dean had retained concerning the estate, that:

(a) The only outstanding matter that needed to be addressed was the settlement of an income tax dispute with the Commonwealth of Pennsylvania;

(b) The remaining assets in the estate were in the amount of $1,000; and,

(c) As soon as the tax dispute was resolved a family agreement or first and final account would be prepared.

(35) Thereafter, neither Attorney Wiethom nor Mr. and Mrs. Dean received any documentation from respondent in regard to finalizing the estate.

(36) The inheritance tax return had been accepted as filed by respondent, and the remaining estate assets should have exceeded $90,000.

(37) By letter to respondent dated April 24,2000, Attorney Wiethom forwarded to respondent a copy of a motion to compel executor to file an account, and informed respondent that he would present it to the court on May 9, 2000.

(38) By letter to respondent dated May 19, 2000, Attorney Wiethom forwarded to respondent a copy of a petition to show cause why respondent should not be compelled to file an account of decedent’s estate and stated that he would present it to the Honorable Lee Mazur, judge of the Court of Common Pleas of Allegheny County, on May 25, 2000.

(39) On or about May 25, 2000, Attorney Wiethom presented to the court the petition to show cause.

(40) That same day, a decree was issued and a citation was awarded, which was returnable for June 23, 2000, directing respondent to show cause why respondent should not be compelled to immediately file an account of his administration of decedent’s estate.

(41) On or about June 23, 2000, respondent filed an answer to petition for rule to show cause in which he indicated that distributions totaling $361,406.28 had previously been made to the beneficiaries, and the first and final account would be filed before August 1, 2000.

(42) On or about August 2, 2000, Attorney Wiethorn telephoned respondent and inquired on the status of the first and final account for the estate.

(43) Respondent responded to Mr. Wiethom’s inquiry by stating that respondent would have the first and final account to him by August 4, 2000.

(44) On or about August 14,2000, Attorney Wiethorn received a copy of the first and final account respondent had prepared.

(45) The draft first and final account prepared by respondent reflected that there were $92,880.69 in funds available in the estate for distribution.

(46) On or about August 18,2000, Attorney Wiethorn telephoned respondent and demanded that he immediately distribute the balance of the estate funds.

(47) Respondent stated that he would be taking the estate to audit, and would like to receive a proposal from Mr. and Mrs. Dean in order to settle the estate.

(48) On or about September 1,2000, respondent filed the first and final account noting, among other things, that there were estate funds totaling $92,880.69 that were undistributed.

(49) By letter to respondent dated September 1,2000, Attorney Wiethom confirmed his conversation with respondent of that same date and stated that if he did not receive verification of respondent’s handling of the estate funds by September 5, 2000, he would have to report respondent’s conduct to the Disciplinary Board.

(50) Thereafter, respondent did not provide Attorney Wiethom with verification of his handling of the estate funds.

(51) On or about September 21, 2000, Attorney Wiethom filed on behalf of Mrs. Dean objections to first and final account of the estate of Joan K. Youngquist.

(52) On or about October 13, 2000, respondent provided Attorney Wiethom with:

(a) A notice of audit which noted that the audit for the estate would be held on Monday, October 16, 2000;

(b) An ancillary account of the estate; and,

(c) PNC check numbers 1931 and 1932, drawn on his PNC account no. **********, captioned “Law Office of Daniel J. Evans,” (law office account) made payable to Mia Dean and the Youngquist-Dean Family Education Trust in the amounts of $20,000 and $80,000 respectively.

(53) The source of the funds paid by respondent to Mrs. Dean and the Youngquist-Dean Family Trust was funds which he borrowed from members of his family.

(54) The ancillary account respondent had prepared and filed noted, among other things:

(a) An additional “Fund in lieu of investment income” from November 1997 through October 2000 in the amount of $13,374.72, thereby increasing the balance for distribution to $378,724.41; and,

(b) Additional distributions to Mia Dean and the trust totaling $100,000, thereby leaving an undistributed balance of estate assets in the amount of $6,255.41.

(55) Respondent then distributed the remaining $6,255.41 to the beneficiaries.

(56) The source of the remaining $6,255.41 distributed to the beneficiaries was a loan from a family member of respondent.

(57) On respondent’s 1996-1997, 1998-1999, 1999-2000, and 2000-2001 Pennsylvania Attorney’s Annual Fee Forms, he reported that there were no financial institutions in which he held funds of a client or third party.

(58) On his 1997-1998 Pennsylvania Attorney’s Annual Fee Form, while respondent did not indicate that there were no financial institutions in which he held funds of a client or third party, respondent did not specify any financial institutions in which he held such funds.

(59) Respondent has practiced law for over 35 years and has no history of discipline.

III. CONCLUSIONS OF LAW

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

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

(2) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

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

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

(5) Pa.R.D.E. 219(d)(l)(iii) — On or before July 1 of each year all persons required by this rule to pay an annual fee shall file with the administrative office a signed statement on the form prescribed by the administrative office in accordance with the following procedures: The statement shall set forth the name of each financial institution in the Commonwealth in which the attorney on May 1 of the current year or at any time in the previous 12 months held funds for a client or a third person subject to Rule 1.15 of the Pennsylvania Rules of Professional Conduct. The statement shall include the name and account number for each account in which the lawyer holds such funds, and each IOLTA account shall be identified as such.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with misappropriation of entrusted funds in his capacity as executor for the estate of Joan Youngquist, failure to diligently represent the estate, and misrepresentations on his attorney annual fee forms. Respondent stipulated to most of the facts as alleged in the petition for discipline, including that fact that he used funds belonging to the estate for his own purposes. The amount of the misappropriated funds was approximately $90,000.

Respondent testified in his own defense and explained that he did not pay appropriate attention to the estate, as he was involved in other matters. He admits that he did not act expeditiously in closing the estate and this was due entirely to procrastination and lack of diligence on his part. As to the misappropriation, respondent believed that the estate owed him “substantial amounts of money” for work that he did in connection with renting the residential property that was part of the estate. Respondent drew funds from the estate account to pay himself but claims he did not realize that he was taking more than he was entitled to. Respondent kept no records of the time he spent doing these tasks for the estate, although he agrees that it did not add up to $90,000. He estimates that it was $20,000.

The beneficiary of the estate contacted respondent numerous times for an accounting. Respondent explained that when he finally put an accounting together, he realized that the amount of money in the estate was short and had been transferred from the estate account to his office account and spent by respondent on office and personal bills. Ultimately the estate was settled to the satisfaction of the beneficiary.

As to the allegation that he made misrepresentations on his annual registration forms that he was not holding entrusted funds, respondent explained that he did not believe that funds held as an executor were subject to the reporting requirements. Clearly the funds belonging to the estate in the account at Mellon Bank were subject to the reporting requirement.

Mishandling of entrusted funds is one of the most troubling forms of attorney misconduct, and the discipline imposed has ranged from rare instances of non-public discipline to disbarment. Respondent has admitted misappropriating approximately $90,000. This is conduct that deserves disbarment. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983); Office of Disciplinary Counsel v. Monsour, 549 Pa. 482, 701 A.2d 556 (1997). Respondent offered no mitigating circumstances to justify a lesser sanction. Respondent’s position that he was unaware that he took $90,000 and his misappropriation was merely a mistake is simply untenable. The sheer amount of money taken belies respondent’s assertion that it was inadvertent.

For the reasons as set forth above, the board recommends that respondent be disbarred.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Daniel J. Evans, be disbarred from the practice of law in this Commonwealth.

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

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

ORDER

And now, February 28, 2003, upon consideration of the report and recommendations of the Disciplinary Board dated December 16, 2002, it is hereby ordered that Daniel J. Evans be and he is disbarred from the bar of this Commonwealth, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: WATKINS, Member,

text:
    Office of Disciplinary Counsel v. Foti

      Disciplinary Board Docket no. 89 D.B. 2001.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

March 28, 2003

WATKINS, 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 June 19, 2001, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against Lawrence T. Foti, respondent in these proceedings. The petition charged respondent with violations of the Rules of Professional Conduct in two separate matters. Respondent filed an answer to the petition for discipline on August 7, 2001.

A disciplinary hearing was held on November 27, 2001, before Hearing Committee 2.08 comprised of Chair Arthur W. Lefco, Esquire, and Members Patrick J. Broderick, Esquire, and Lance J. Nelson, Esquire. Samuel C. Stretton, Esquire, represented respondent. Respondent presented the testimony of his treating psychologist and several character witnesses as well as his own testimony.

Following briefing by the parties, the committee filed a report on September 4, 2002 and concluded that respondent violated the Rules of Professional Conduct. The committee recommended that respondent be suspended for a period of three years.

The parties did not take exception to the report of the Hearing Committee.

This matter was adjudicated by the Disciplinary Board at the meeting of December 4, 2002.

n. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg PA 17101, 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 the aforesaid rules.

(2) Respondent was born in 1950 and was admitted to practice law in Pennsylvania in 1986. His office address is 12 Veterans Square, P.O. Box 744, Media, Pennsylvania 19063. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court.

Barrett Matter

(3) In September 1995, Dorothy E. Barrett suffered injuries when she was a pedestrian struck by a motor vehicle at an intersection in Media, Pennsylvania.

(4) Ms. Barrett retained respondent to represent her, and he filed a civil action in August 1997 in the Court of Common Pleas of Delaware County.

(5) In March 1999, respondent settled Ms. Barrett’s case for $55,000.

(6) Insurance settlement checks representing the aforesaid amount were deposited by respondent into his IOLTA account at PNC Bank in April 1999.

(7) The settlement amount was not only subject to legal fees and costs, but also to an outstanding Medicare lien and a Pennsylvania Department of Public Welfare lien, which liens were eventually resolved in the amounts of $16,414 and $717.32, respectively.

(8) Subsequent to respondent’s deposit of the settlement proceeds into his IOLTA account, he removed the proceeds of that settlement for his own personal uses and purposes.

(9) As a result of respondent’s use of the funds, by December 24, 1999, the balance in his IOLTA account had been reduced to below $33,000 and to approximately $3,500 by July 10, 2000.

(10) On July 10,2000, no distribution had yet occurred of the approximate amount of $33,000, representing the total of Ms. Barrett’s share of the recovery and the funds required to satisfy the liens against the settlement.

(11) In December 2000, after the investigation by Office of Disciplinary Counsel commenced, respondent made restitution and distribution of funds to which his client and the lien holders were entitled.

Fitzgerald Matter

(12) In August 1996, Tanya Fitzgerald and her minor daughter were involved in an automobile accident.

(13) Ms. Fitzgerald retained respondent in November 1996.

(14) In December 1999, the cases were settled in the amounts of $1,000 for Ms. Fitzgerald and $1,700 for her daughter.

(15) By January 2000, respondent had received and deposited all insurance checks received in settlement of the personal injury cases on behalf of his clients.

(16) Respondent failed to forward his clients’ shares of the settlement proceeds until October 16, 2000.

(17) In the fall of 2000, respondent sought counseling from a licensed psychologist, Louis Cataldo.

(18) Mr. Cataldo has treated respondent since that time on a two-week basis.

(19) Mr. Cataldo understands the nature of the current disciplinary proceedings against respondent.

(20) Mr. Cataldo diagnosed respondent with a dysthmic disorder, describing him as being depressed for over two years.

(21) In Mr. Cataldo’s opinion, respondent has been suffering from depression since his divorce in 1995.

(22) Mr. Cataldo indicated that respondent’s depression affected his judgment and ability to concentrate and organize his thoughts.

(23) Mr. Cataldo opined that the depression was the major contributing factor to respondent’s misconduct.

(24) Respondent had a positive response to the therapy.

(25) As therapy progressed, respondent gained insight and appreciation of how his illness affected his judgment.

(26) Mr. Cataldo indicated that at the time of the disciplinary hearing respondent had made a major improvement and was only mildly depressed, as opposed to the severe depression he suffered when treatment commenced.

(27) Respondent does not take medication to control the depression, as the therapy has been beneficial.

(28) Respondent used the client funds for office-related expenses and costs, which arose due to his disorganization and inability to prioritize obligations. Prior to entering therapy, respondent was at times unable to even open mail for substantial periods of time.

(29) Respondent has taken steps to rearrange his practice and to better manage it.

(30) Respondent expressed remorse for his misconduct and fully acknowledged that his misconduct was wrong.

(31) Four character witnesses testified on respondent’s behalf. Attorneys Nelson Sack, Gregory Prete, Alan Rosenberg, and Edward Weiss testified to respondent’s excellent reputation in the community as a truthful and honest person. These witnesses also testified to personal observations that respondent is a very skilled and competent lawyer.

(32) Respondent has no prior record of discipline.

III. CONCLUSIONS OF LAW

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

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

(2) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with the representation separate from the lawyer’s own property.

(3) R.P.C. 1.15(b) — A lawyer shall promptly deliver to the client or third person any funds that the client or third person is entitled to receive.

(4) R.P.C. 1.15(c) — When a lawyer is in possession of property in which both the lawyer and another person claims interest, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests.

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

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

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with serious violations of the Rules of Professional Conduct arising out of misappropriation and conversion of funds and the failure to promptly deliver settlement proceeds to a client. Respondent filed an answer to the petition and entered into a joint stipulation of fact admitting to professional misconduct. Respondent contends that due to a psychiatric disorder he is entitled to mitigation pursuant to Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989).

The first issue to be decided by this board is to determine whether respondent violated any of the disciplinary rules. Petitioner has the burden of proving by clear and satisfactory evidence that respondent violated those rules charged in the petition. Respondent admitted to violating Rules of Professional Conduct 1.15(a), (b), and (c) and 8.4(c) in the Barrett matter. Further, respondent admitted to violating rules 1.15(b) and 1.3 in the Fitzgerald matter. Petitioner decided not to pursue any of the additional charges in the Fitzgerald matter. Therefore, the board must determine whether respondent violated Rule 8.4(b) in the Barrett matter.

The Hearing Committee found that respondent did violate 8.4(b), as he took funds that belonged to his clients and converted them for his own use for a period of time. By converting these funds, respondent committed a criminal act. The board agrees with the committee’s conclusion. Respondent’s conduct was criminal in nature and adversely reflected on his honesty, trustworthiness and fitness as lawyer.

The next issue before this board is to determine the sanction to be imposed upon respondent. The appropriateness of a disciplinary sanction is based on the nature and gravity of the misconduct and the aggravating and mitigating factors present. In re Anonymous No. 85 D.B. 97, 44 D.&C.4th 299 (1999). The board finds that respondent’s misconduct was both serious and grave in nature, and warrants a suspension.

The length of suspension warranted is dependent upon the existence of any aggravating and mitigating factors. The board finds that there are mitigating factors. Respondent presented the testimony of Louis Cataldo, a licensed psychologist. Mr. Cataldo opined that respondent suffers from depression, has suffered from it since approximately 1995, and was suffering from the depression at the time of his misconduct. Mr. Cataldo opined that the depression was a major contributor to the misconduct. Mr. Cataldo described respondent as severely depressed when he first sought treatment, compared to his current status of mildly depressed. Respondent has responded well to treatment and intends to continue such treatment. Respondent does not currently need medication to control his depression. Mr. Cataldo, in his testimony, demonstrated that he was aware of respondent’s personal history as well as his misconduct. Respondent, through the testimony of Mr. Cataldo, has satisfied the Braun standard for consideration of his depression as a mitigating factor. See In re Anonymous No. 66 D.B. 96, no. 384 disciplinary docket no. 3 (Pa. February 10, 1998), In re Anonymous No. 104 D.B. 95, no. 126 disciplinary docket no. 3 (Pa. May 21, 1997). Other mitigating factors the board considered are respondent’s sincere remorse and his lack of prior discipline.

The Pennsylvania Supreme Court has imposed suspensions in cases where the Braun standard was met and there was no prior history of discipline. In the matter of In re Anonymous No. 32 D.B. 89, 13 D.&C.4th 478 (1992), an attorney commingled and converted fees intended for and belonging to the law firm where he was employed. The attorney proved that he had a personality disorder, which caused him to commit the misconduct. The attorney had no prior history of discipline and had an excellent reputation in the community. The court imposed a suspension for a period of three years. In the matter of In re Anonymous No. 66 D.B. 84, 17 D.&C.4th 414 (1992), an attorney deposited estate funds into his personal account and withdrew the monies to satisfy personal obligators. The attorney proved that he suffered from bipolar disorder, which caused him to commit the misconduct. The court suspended the attorney for a period of two and one-half years.

Comparing the facts of the above-cited cases with the facts of the instant case, the board finds that a suspension of three years is warranted. This recommendation balances the gravity of respondent’s acts with the fact that he suffered from a disorder which substantially caused the misconduct.

The board recommends that respondent be suspended for a period of three years.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Lawrence T. Foti, be suspended from the practice of law in the Commonwealth of Pennsylvania for a period of three years.

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

Board Members Schultz and Morris did not participate in the December 4, 2002 adjudication.

ORDER

And now, July 24, 2003, upon consideration of the report and recommendations of the Disciplinary Board dated March 28, 2003, it is hereby ordered that Lawrence T. Foti be and he is suspended from the bar of this Commonwealth for a period of three years, and he shall comply with all the provisions of Rule 217 Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: SCHAEFFER, S.J.,

text:
    Mietelski v. Banks

      C.P. of Berks County,
    no. 01-5599.

      KentD. Mikus, for plaintiffs.

      Thomas K. Ellixson and James Gicking, trial counsel for defendant.

      John G. Devlin, appellate counsel for defendant.
    September 15, 2003
   SCHAEFFER, S.J.,

Before the court is defendant Kirsten Janice Banks’ (appellant) appeal from the final judgment entered July 29, 2003 in the above-captioned matter.

This dispute arose out of an automobile accident that occurred on February 3, 2000 in Shillington, Berks County, Pennsylvania. Plaintiff Eric Mietelski and his wife Bonnie were stopped at a red light on Shillington Road. Appellant saw plaintiffs’ stopped car from about two blocks away. Appellant then crashed the vehicle she was driving into the back of plaintiffs’ vehicle. Plaintiffs’ vehicle spun around and crashed into the back of a truck that was stopped in front of them at the red light. As a result of the crash, Eric suffered a slipped disk in his back, an injury to his SI joint, and aggravated a preexisting neck injury. Bonnie Mietelski suffered a strain to her lower back. Eric has a guarded prognosis and may never be able to work again.

Plaintiffs filed their complaint on June 1, 2001. On February 7,2003, this case was reassigned to the undersigned. A jury trial was held on March 24,2003. At trial, the defendant stipulated to negligence. On March 27, 2003, a verdict was entered in favor of the plaintiffs and against the defendant. Defendant filed post-trial motions on April 7, 2003. Argument was held on the motions on June 20, 2003 and on July 21, 2003, the motions were denied. Judgment was entered on July 29, 2003. Appellant filed her notice of appeal on August 8, 2003. On August 11, 2003, we ordered appellant to file a concise statement of matters complained of on appeal.

In her concise statement, appellant alleges:

(1) Is the defendant, Kirsten Janice Banks, entitled to judgment n.o.v. where plaintiffs failed to present sufficient evidence at trial to establish any of the elements of the wife-plaintiff’s claim of negligence, causing the jury to enter an erroneous award?

(2) Is the defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion in denying defendant an opportunity to present evidence at trial of the surveillance of plaintiffs, since plaintiffs could not reasonably claim any prejudice to trial preparation resulted from its disclosure having been provided with this evidence more than a week before the presentation of witnesses at trial, and several days before the taking of the videotaped trial deposition of defendant’s expert neurologist, Dr. Bennett, causing the jury to enter an erroneous award?

(3) Is the defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion when the court ruled, pretrial, to preclude the admission of or any reference to, defendant’s recent surveillance evidence which was disclosed 10 days before trial and said preclusion was not supported by any showing of unfair prejudice to plaintiff?

(4) Is the defendant, Kirsten Janice Banks, entitled to a new trial where the authority relied upon by plaintiffs did not support the preclusion of defendant’s surveillance evidence and related testimony, causing the jury to enter an erroneous award?

(5) Is the defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion when the court precluded any reference to the defendant’s surveillance evidence during the testimony of the defense medical doctor?

(6) Is defendant, Kirsten Janice Banks, entitled to a new trial where the jury’s finding that defendant was negligent as to the wife-plaintiff was against the weight of the evidence, causing the jury to enter an erroneous award?

(7) Is defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion in refusing to allow counsel for defendant to cross-examine plaintiffs ’ vocational rehabilitation expert with respect to certain wage loss figures and other information relied upon by this expert which had been raised and challenged in the report of defendant’s expert and which would have otherwise been reasonably anticipated to have been a subject of cross-examination, causing the jury to enter an erroneous award?

(8) Is defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion in failing to properly instruct the jury with respect to damages and by instructing the jury that the plaintiff had a certain “entitlement” compensation for damages, causing the jury to enter an erroneous award?

(9) Is defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court committed a prejudicial error of law and/or abused its discretion in failing to permit counsel for defendant to argue during closing regarding the contents of the medical record/report of Dr. Perkins, the basis for his report and the content of certain radiology records which were available to be taken into account causing inferences to be improperly drawn by plaintiff’s witnesses, causing the jury to enter an erroneous award?

(10) Is defendant, Kirsten Janice Banks, entitled to a new trial where the verdict was the result of passion, prejudice and improper influence?

(11) Is defendant, Kirsten Janice Banks, entitled to a new trial where the verdict is not in accord with existing law?

(12) Is defendant, Kirsten Janice Banks, entitled to a new trial on the issue of damages because the jury’s award of damage was against the clear and overwhelming weight of the evidence?

(13) Is defendant, Kirsten Janice Banks, entitled to a new trial on damages where the honorable court erred in allowing the jury to consider plaintiff-husband’s claim of injury when the jury was deprived of an opportunity to observe the surveillance videotape and testimony?

(14) Is defendant, Kirsten Janice Banks, entitled to a new trial where the honorable court abused its discretion or committed an error of law in failing to charge the jury that it was required to consider whether defendant’s negligence was a substantial factor in producing Mr. Mietelski’s claimed injuries?

(15) Is defendant, Kirsten Janice Banks, entitled to a substantial remittitur of the jury’s verdict where the verdict is unsupported by substantial credible evidence, is excessive under the circumstances and shocks the conscience of the community as well as the court?

In her first matter complained of on appeal, appellant asserts that she is entitled to judgment n.o.v. because the plaintiffs failed to present sufficient evidence at trial to establish any of the elements of the wife-plaintiff’s claim of negligence. Pursuant to Pa.R.C.P. 227.1(b)(2), post-trial relief may not be granted unless the motion states how the grounds for relief were asserted at trial. Appellant’s post-trial motion does not indicate how the sufficiency of the evidence argument was raised at trial. We find that this issue has been waived. See generally, Bennyhoff v. Pappert, 790 A.2d 313, 317-18 (Pa. Super. 2001). Further, as to appellant’s weight of the evidence issue, while the jury found that appellant’s negligence was a substantial factor in causing harm to wife-plaintiff, it awarded her none of the damages she claimed. Therefore, it is a stretch to call this award “erroneous.”

Appellant asserts in her next 13 issues that she is entitled to a new trial. It is well settled that the grant of a new trial is a matter within the discretion of the trial court. Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). The standard of review of an order denying a motion for a new trial is to decide whether the trial court committed an error of law that controlled the outcome of the case or committed an abuse of discretion. Fanning v. Davne, 795 A.2d 388 (Pa. Super. 2002). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, discretion is abused. Id. Nor does the determination in this regard turn on whether the appellate court might have reached a different conclusion, but depends instead on whether there was such lack of support for the trial court’s action as to render it clearly erroneous. Id.

Five of appellant’s issues concern the issue of the admissibility of surveillance evidence. The admission of videotaped evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. Long, 425 Pa. Super. 170, 183-84, 624 A.2d 200, 207 (1993), alloc. denied, 535 Pa. 645, 633 A.2d 150 (1993). The surveillance tape at issue was filmed January 25, 2003 through and including February 4,2003, the day jury selection occurred. Plaintiffs had previously requested any such information in discovery. Once they made this request, appellant had a continuing obligation to disclose such information, provided she had had the opportunity to depose plaintiff regarding the extent and effect of his injuries. See Duncan v. Mercy Catholic Medical Center, 813 A.2d 6, 10 (Pa. Super. 2002). Appellant had this opportunity during the deposition of Eric, taken on December 21, 2001. (Defendant’s exhibit 6.) The tape’s existence was not made known to plaintiffs until right before trial; the tape was not made available until the end of the day on the Friday before the deposition of appellant’s expert, Dr. Bennett, was taken on the following Monday. Counsel was notified, by fax, at 3:30 p.m. that Friday afternoon, of the existence of the tape. Counsel for plaintiffs were in another town some distance from where it was stated they could come view the tape. Dr. Bennett was appellant’s expert witness and was permitted to testify at trial by videotape. Plaintiffs had no opportunity to properly prepare for the cross-examination of this witness about the tape they had just seen prior to the deposition. This is certainly unfair surprise. Also, during jury selection, one of the potential jurors asked plaintiffs’ counsel about the existence and use of surveillance tapes and was told that such tapes were not part of the case. But in fact, surveillance had been ordered for that very day! Allowing appellant to admit surveillance evidence after she allowed this impression to stand, when in fact she had ordered taping prior to, and even on that particular day, would have made plaintiffs’ counsel look dishonest and their case look like a sham. We find that plaintiffs were prejudiced by this failure to timely disclose the requested discovery concerning any surveillance.

Further, we properly sustained the objections to questions posed to Dr. Bennett based on his viewing of the tape. Surveillance evidence is not the type of evidence customarily relied upon by doctors in rendering medical opinions, and therefore, the tape was not admissible for this purpose. See Kimberly Clark Corporation v. W.C.A.B. (Bullard), 790 A.2d 1072, 1076 (Pa. Commw. 2001). Dr. Bennett could not consider the tape as a reliable basis upon which he could change his opinion in contravention of his opinion in prior reports.

Appellant also alleges the court erred by not allowing counsel for appellant to cross-examine plaintiffs’ vocational rehabilitation expert concerning information from the report of appellant’s expert. It is well established that an expert may express an opinion which is based on material not in evidence, including other expert opinion, where such material is of a type customarily relied on by experts in his or her profession. Collins v. Cooper, 746 A.2d 615, 618 (Pa. Super. 2000). Such material may be disclosed at trial even though it might otherwise be hearsay. Such hearsay is admissible because the expert’s reliance on the material provides its own indication of the material’s trustworthiness: “The fact that experts reasonably and regularly rely on this type of information merely to practice their profession lends strong indicia of reliability to source material, when it is presented through a qualified expert’s eyes.” Primavera v. Celotex Corp., 415 Pa. Super. 41, 50, 608 A.2d 515, 520 (1992). In the case of Boucher v. Pennsylvania Hospital, 2003 WL 21762600 (Pa. Super.), the Superior Court reversed the trial court’s denial of plaintiffs’ motion for a new trial where plaintiffs were not permitted to cross-examine the Pennsylvania Hospital’s medical expert regarding an expert report prepared on Pennsylvania Hospital’s behalf by an expert who was not called to testify at trial. The Superior Court agreed with the trial court that the report was hearsay, but stated that the plaintiffs should have been allowed to refer to the report to the degree required to question the expert’s credibility. Id. at paragraph 10. The Superior Court said the trial court did not err in rejecting appellants’ attempts to cross-examine Pennsylvania Hospital’s expert under the expert reliance exception to the hearsay rule. Id. at paragraph 12. However, examining the proper scope of cross-examination, the Superior Court held that appellants were entitled to confront the expert with a discrepancy that refuted the assertions he made on direct, that he had reviewed the report at issue, but made misleading statements in regard to it. The court said that in this type of circumstance, the expert report may be used for the limited purpose of impeaching the credibility of the witness, but would not be admitted as substantive evidence. Id. at paragraph 21. The court found this error was not harmless because the sole testifying expert on behalf of Pennsylvania Hospital testified to the central issue in the case, whether trauma could be ruled out as a cause of the injured infant’s condition. One aspect of his opinion was his conclusion that there was no suggestion of a cephalohematoma in the records or reports he reviewed. The report at issue belied this conclusion, and cross-examination of the expert on this point could have undermined the expert’s credibility and might have affected the verdict. Id. at paragraph 24.

The record does not support appellant’s contention that trial counsel for appellant, Mr. Ellixson, was not permitted to cross-examine plaintiffs’ vocational rehabilitation expert concerning information from the report of appellant’s vocational expert. We gave Mr. Ellixson great leeway on cross-examining plaintiffs’ vocational expert concerning facts which were not then in evidence on his representation that he would call a Ms. Irene Mendelsohn as appellant’s vocational expert witness, and that Ms. Mendelsohn would put these facts in evidence. (Notes of Testimony, 3/26/03, pp. 353-68, 371-76.) Relying on trial counsel’s representations, the court allowed him to cross-examine plaintiffs’ vocational expert on certain facts from Ms. Mendelsohn’s report. In spite of appellant’s counsel’s explicit promise to the court that he would call Ms. Mendelsohn, he never called her. (Id. at pp. 386-87.) Mr. Ellixson explained to the court later, in the retiring room, that he did not call Ms. Mendelsohn because he changed his “strategy.” Counsel was attempting to put facts into evidence, i.e., wages and benefits for sedentary work, with no basis or competent evidence for them. Plaintiffs’ expert did not rely on the information in Ms. Mendelsohn’s report because she had a problem with Ms. Mendelsohn’s basis for the figures; Ms. Mendelsohn neither identified the market area nor did a labor market analysis. (Id. at p. 369.) Reports in this field without this basis, and without supporting testimony, cannot be reasonably relied upon. Appellant was also attempting to get the figures from Ms. Mendelsohn’s report into evidence without having her expert witness subject to cross-examination and succeeded in doing so. It was proper and necessary, after appellant’s counsel got facts from Ms. Mendelsohn’s report before the jury without a proper factual basis for them, for the court to instruct the jury to disregard such evidence. If any party had a valid reason to allege error, because of the way the court had previously ruled, relying on appellant’s counsel’s false statement, it was the plaintiff.

The substantive evidence in the report was inadmissible hearsay without the testimony of the expert. We properly restricted said evidence from coming in as competent evidence, but allowed liberal cross-examination of the witness as to the report itself. Appellant was allowed to refer to the report to the degree required to question the credibility of the testifying expert in relation to her testimony encompassing the report. Plaintiff’s expert did not make misleading statements about the report, as had occurred in the Boucher case. Further, it is clear that appellant was not harmed because the jury award did not give Eric the future wage loss damages he asked for, nor what the expert testified were his damages, up to $735,460 for the total value of future wage loss and benefit loss to age 65 (id. at p. 351), but reflect a finding that he may be able to do some type of work in the future and be paid for it.

Appellant also alleges that the court committed error and/or abused its discretion in failing to permit counsel for defendant to argue during closing regarding the contents of the medical record/report of Dr. Perkins, the basis for his report and the content of certain radiology records which were available. The presentation of closing speeches is within the discretion of the trial court. Clark v. Philadelphia College of Osteopathic Medicine, 693 A.2d 202 (Pa. Super. 1997). While counsel usually has great latitude in his closing argument, he may not present facts to the jury that are not in evidence and which are prejudicial to the opposing party. Coffee v. Minwax Co., 764 A.2d 616 (Pa. Super. 2000). Again, counsel misrepresents what occurred at trial. (Notes of Testimony, 3/27/03, pp. 457-60.) Counsel made a representation that Dr. Perkins did not review certain records that showed no problem in the SI joint. Counsel was trying to argue something that was not in the record of the case and attempting to draw a negative inference without any basis for it. It is improper to comment on matters not in evidence during closing arguments.

Appellant also argues that the court committed an error of law in failing to charge the jury that it had to consider whether defendant’s negligence was a substantial factor in producing Eric’s injuries. We disagree. We properly applied the law of Pennsylvania in this regard. In Andrews v. Jackson, 800 A.2d 959 (Pa. Super. 2002), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002), the Superior Court said that, “[w]here there is no dispute that the defendant is negligent and both parties’ medical experts agree the accident caused some injury to the plaintiff, the jury may not find the defendant’s negligence was not a substantial factor in bringing about at least some of plaintiff’s injuries.” Andrews at p. 962. (citations omitted) (emphasis in original) In the case at bar, appellant conceded that she was negligent. Further, plaintiff’s experts and the expert for the defendant, Dr. Bennett, agreed the accident caused some injury to Eric. Therefore, the jury would not have been permitted to find that the defendant’s conduct was not a substantial factor in causing plaintiff’s harm.

Appellant also argues that the trial court erred in not granting a remittitur. Judicial reduction of a jury reward is appropriate only when the award is plainly excessive and exorbitant. “The question is whether the award of damages falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake or corruption.” Haines v. Raven Arms, 536 Pa. 452, 455, 640 A.2d 367, 369 (1994). (citation omitted) The record shows that Eric Mietelski was harmed by the negligence of appellant and will have injuries that may affect him for the rest of his life and may preclude him from ever working again. The record also shows that: Eric claimed he had $29,824.68 in past medical expenses; the jury awarded $28,660.87 for these damages. Eric claimed he had past wage losses of $102,766; the jury awarded $84,705 for these damages. Eric claimed he had between $636,960 and $735,460 for future wage losses; the jury awarded $443,853 for these damages. The jury awarded Eric zero damages for past, present and future pain and suffering, and $38,800 for his past, present and future loss of enjoyment of life. After reviewing these figures, our conscience was anything but shocked. The verdict was not excessive, nor did it fail to bear a reasonable relationship to the plaintiffs’ damages in this case.

Further, we properly instructed the jury with respect to damages. As we previously stated, it was not error to not give a “substantial factor” charge because it would have been error for the jury to not find a substantial factor where both plaintiffs’ and defendant’s experts agreed that plaintiff suffered some injuries as a result of the accident. When considering the charge as a whole, we instructed the jury that, under our law, a person is not entitled to recover damages just because he or she was injured in an accident. (Notes of Testimony, 3/27/03, p. 491.) The jury was told that the parties did not agree on the amount of harm Eric suffered and it needed to determine such. Id. The court gave the standard instructions on damages and on each of the categories that the jury could consider. The jury was told that plaintiffs must prove their damages with reasonable certainty. (Id. at pp. 505-12.) Appellant objected to the charge on damages, asserting that we gave our instruction without any regard to whether or not they related to the accident of February 3, 2000. (Id. at p. 518.) This is not so. In fact, every question presented on the special verdict slip instructed the jury to award only those damages related to the accident on February 3,2000. We went over that form with the jury. (Id. at pp. 515-18.) After a side-bar, we also gave additional instructions that just because each of the questions on the special verdict slip has a place where the jury could put in a dollar amount did not mean that they absolutely must put in some dollar amount as to each question. (Id. at p. 521.) It is clear from the verdict that the jury understood it did not have to award any damages if it so chose, because in more than several categories it awarded zero dollars.

Appellant also asserts that she is entitled to a new trial because the verdict was against the weight of the evidence, the damages were against the weight of the evidence and the verdict was the result of passion, prejudice and improper influence. Our review of the record in this case, as evidenced by the discussion above, shows that these issues are without merit.

For the foregoing reasons, we respectfully request that the Superior Court affirm the judgment entered in this matter on July 29, 2003.

[On September 26, 2003, the court amended its opinion by adding a footnote to indicate that where “appellant’s counsel” was referenced in the opinion, the court was referring to trial counsel, Thomas K. Ellixson, Esquire.]


author: FEUDAL, S.J.,

text:
    Sheeran v. Kubert, Himmelstein & Associates P.C.

      Sidney L. Gold, for plaintiff.

      Gilbert B. Abramson for defendants.
    October 27, 2003
   FEUDAL, S.J.,

“Whose bread I eat, whose wine I drink, his song I sing.” Damon Runyan. Before the court in an apparent case of first impression, is defendants’ motion for summary judgment in the wrongful discharge action involving an office manager/ secretary of a Philadelphia law firm, who alleges she was discharged for serving on jury duty. Defendants, who claim they did not terminate plaintiff because she served on jury duty, agree for the purpose of summary judgment it can be assumed plaintiff was so discharged. They rely on 42 Pa.C.S. §4563 which provides for protection of employment of petit and grand jurors, but excludes employers in any retail or service industry employing fewer than 15 persons. Plaintiff asserts the section is inapplicable and relies on the case of Reuther v. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978), which held that an employer who discharges an employee for serving on jury duty violates public policy and can assert claim for wrongful discharge.

STATEMENT OF FACTS

Plaintiff, Julia Sheeran, was an office manager/secretary with defendants, Kubert, Himmelstein & Associates P.C. from on or about September 11,1978, until July 13, 2001, the date of her termination. Defendants, Kubert, Himmelstein & Associates P.C, are engaged in the business of providing legal services to their clients, and, at all times relevant to plaintiff’s claim, defendants employed less than 15 persons.

In April 2001, Sheeran received a summons to appear for jury duty at the Court of Common Pleas for the County of Philadelphia. On May 20,2001, Sheeran reported for jury service and was selected to serve in a two- to three-day trial before the Honorable John J. Chiovero and she did indeed serve as a juror at the trial. Moreover, it is undisputed that Sheeran was terminated from her employment on July 13, 2001.

As to the motion for summary judgment, the sole fact in dispute is whether Sheeran was terminated for serving on a jury.

RELEVANT LAW

“Declaration of policy

“It is the policy of this Commonwealth that:

“(1) All persons entitled to a jury trial in a civil action, or criminal proceeding shall have the right to jurors selected at random from a representative cross-section of the eligible population of the county.

“(2) All qualified citizens shall have the opportunity to be considered for service as jurors in the courts of this Commonwealth and shall have an obligation to serve as jurors when summoned for that purpose.

“(3) A citizen shall not be excluded from service as a juror on the basis of race, color, religion, sex, national origin or economic status.” 42 Pa.C.S. §4501.

“Exemptions from jury duty

“(a) General rule. — No person shall be exempt or excused from jury duty except the following:

“(1) Persons in active service of the armed forces of the United States or of the Commonwealth of Pennsylvania.

“(2) Persons who have served within three years next preceding on any jury except a person who served as a juror for fewer than three days in any one year in which case the exemption period shall be one year.

“(3) Persons demonstrating to the court undue hardship or extreme inconvenience may be excused permanently or for such period as the court determines is necessary, and if excused for a limited period shall, at the end of the period, be assigned to the next jury array.

“(4) Spouses, children, siblings, parents, grandparents and grandchildren of victims of criminal homicide under 18 Pa.C.S. §2501 (relating to criminal homicide).

“(b) Challenges. — This subchapter shall not affect the existing practice with respect to peremptory challenges and challenges for cause.” 42 Pa.C.S. §4503. As amended 1982, Dec. 20, P.L. 1409, no. 326, art.ll, §201, effective in 60 days; 2002, Oct. 17, P.L. 886, no. 128, §1, effective in 60 days.

“List of disqualified jurors

“(a) Maintenance of list. — The jury selection commission shall create and maintain a list of names of all prospective jurors who have been disqualified and the reasons for their disqualification. The list shall be open for public inspection.

“(b) Relatives of criminal homicide victims. — Any persons who are exempt or excused from jury duty under section 4503(a)(4) (relating to exemptions from jury duty) may petition the jury selection commission to have their names placed on the list of disqualified jurors. Any persons so placed on the list may, at any time, petition for removal of their names from the list unless they are otherwise disqualified under section 4502 relating to qualifications of jurors).” 42 Pa.C.S. §4508.

“Protection of employment of petit and grand jurors

“(a) General rule. — An employer shall not deprive an employee of his employment, seniority position or benefits, or threaten or otherwise coerce him with respect thereto, because the employee receives a summons, responds thereto, serves as a juror or attends court for prospective jury service. Nothing in this section shall be construed to require the employer to compensate the employee for employment time lost because of such jury service.

“(b) Penalty. — Any employer who violates subsection (a) commits a summary offense.

“(c) Civil remedy available. — If an employer penalizes an employee in violation of subsection (a) the employee may bring a civil action for recovery of wages and benefits lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable shall- not exceed wages and benefits actually lost. If he prevails, the employee shall be allowed a reasonable attorney’s fee fixed by the court.

“(d) Exception. — Subsection (a) shall not apply to any employer in any retail or service industry employing fewer than 15 persons or any employer in any manufacturing industry employing fewer than 40 persons.

“(e) Right to excuse. — Any individual not entitled to re-employment under subsection (a) shall, upon request to the court, be excused from jury service.” 42 Pa.C.S. §4563.

According to the defendants, the original right of action against an employer established in Reuther was based on a public policy exception to the at-will employment doctrine. Reuther v. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978). As noted in defendants’ memorandum of law in support of summary judgment, such a public policy must be articulated in the constitution, legislation, and administrative regulation or a judicial decision. Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 580, 670 A.2d 173, 175 (1996). The stated public policy must be directly applicable to the employee and her actions. Id. “[Independent authority [for the courts] to discern public policy . . . exists [only] in the absence of legislation.” Reinforced Earth Co. v. W.C.A.B. (Astudillo), 570 Pa. 464, 810 A.2d 99, 105 (2002).

Pennsylvania’s protection of employment of petit and grand jurors statute establishes the parameters of permissible conduct by employers in dealing with employees who are called to serve or who serve on a jury. Termination or other adverse action is proscribed, 42 Pa.C.S. §4563(a), and the employee has a court remedy, 42 Pa.C.S. §4563(c), except for employers in the service industry with fewer than 15 employees. 42 Pa.C.S. §4563(d). Thus, according to the defendants, the stated public policy of the General Assembly of the Commonwealth of Pennsylvania is not to sanction service-industry employers of fewer than 15 employees who terminate an employee for serving on a jury. Id. It is their position, this is not a situation where the legislature is silent on employees in the plaintiff’s class and employers in defendants’ class. The legislature specifically considered such employees and employers and excluded the employers from liability. In their view, a clearer statement of public policy cannot be found, and the courts cannot create a contrary public policy. Reinforced Earth, 810 A.2d at 105.

According to defendants, by adding subsections (d) and (e) to the statute in 1982, the legislature clearly intended to and did in fact exclude those employees in plaintiff’s class from the protection against termination for serving on a jury. Defendants assert the basis for this exclusion is easily deduced: The legislature recognized the hardship on small service-business owners that resulted from losing one of their few employees to jury duty and determined that, in such a case, the competing interest of economic vitality of small businesses outweighed the interest in the performance of civic duty.

Defendants note, to remedy the potentially harsh result, the legislature further provided that any employee of such a business called to serve on jury duty must upon request, be excused from service. 42 Pa.C.S. §4563(e). According to defendant, the legislature effectively gave such employees an opportunity to be excused from serving on a jury in order to protect the small business owner while at the same time protecting the employee’s job.

In conclusion, according to defendants, plaintiff (arguably) despite being encouraged to do so by defendants in this case, failed to avail herself of her statutory remedy to be excused from service. The consequences of her actions were thus to face potential termination. Having made her choice, plaintiff, according to defendants, cannot now claim her remedy is “inadequate” and that she is somehow protected by a public policy that expressly excludes those in her class. Rather than being without a remedy, plaintiff is more accurately, according to the defendants, without a right, because the legislature has excluded her from the protection of the public policy. See Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 580, 670 A.2d 173, 175 (1996) (holding for discharge to be wrongful under public policy exception, the stated public policy must be directly applicable to the employee and her actions). Additionally, defendants add the competing public policies of civic duty and economic vitality have already been balanced by the legislature in enacting 42 Pa.C.S. §4563, and the court cannot alter this balance and it is not for the courts to legislate or by interpretation to add to legislation matters which the legislature saw fit not to observe.

According to plaintiff, defendants’ argument that by enacting 42 Pa.C.S. §4563 “the legislature recognized the hardship on small service-business owners that resulted from losing one of their few employees to jury duty and determined that, in such a case, the competing interest of economic vitality of small businesses outweighed the interest in the performance of civic duty” and consequently decided to permit small service-business employers to terminate any employee who serves on jury duty, is simply without merit. In plaintiff’s view, the “economic vitality of small businesses” is, in fact, protected by 42 Pa.C.S. §4563. However, the “economic vitality of small businesses” is protected not by eliminating an employee’s well-established ability to bring a claim for wrongful discharge when such an employee has been terminated for serving on a jury, as defendants contend, but rather by not exposing small business employers to the harsh criminal and attorney fee-shifting provisions that large business employers are subjected to under subsections (b) and (c) of 42 Pa.C.S. §4563. See Reuther v. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978), holding that an employer who discharges an employee for serving on jury duty violates public policy.

Thus, defendants’ argument that “by adding subsection (d) and (e) to the statute in 1982, the legislature clearly intended to and did in fact exclude those employees in plaintiff’s class from the protection against termination for serving on a jury ‘is incorrect.’ ” Rather, by adding subsections (d) and (e) to the statute in 1982, the legislature sought to exclude employers in the defendants’ class from the severe penalties imposed upon large employers by subsection (b) and (c), but did not seek to eliminate an employee’s right to bring a claim for wrongful discharge when terminated for serving on a jury.

Furthermore, plaintiff argues that it is presumed that the legislature does not intend a result that is absurd or unreasonable. However, plaintiff suggests defendants directly contradict such recognition by proposing an interpretation of 42 Pa.C.S. §4563 that would produce extremely absurd and completely unreasonable results.

If 42 Pa.C.S. §4563 is interpreted in the manner so asserted by defendants, that is, “employers in the service industry with fewer than 15 employees” (and employers in the manufacturing industry with fewer than 40 employees) “are not prohibited from terminating employees for serving on jury duty,” 42 Pa.C.S. §4563 would operate so as to systematically exclude an extremely large group of citizens (those employed within small businesses) from the juror pool, thereby leaving only the employees of large businesses to serve on jury duty. Such a result is not only absurd, but also in direct conflict with 42 Pa.C.S. §4501, entitled “Declaration of policy,” which provides that “All persons entitled to a jury trial... shall have the right to jurors selected at random from a representative cross-section... of the community.” 42 Pa.C.S. §4501(1). Defendants’ contention completely contradicts the clearly stated public policy within 42 Pa.C.S. §4501(1) by eviscerating the right of those individuals entitled to a jury trial to jurors selected at random from a representative cross-section of the community because, under the defendants’ interpretation of42Pa.C.S. §4563, only employees of large businesses would be permitted to serve on the jury while employees of small businesses would be excused from doing so. According to plaintiff, such an interpretation providing for discriminatory results upon individuals entitled to a jury trial could not be further from the well-established public policy declared by the Pennsylvania General Assembly in 42 Pa.C.S. §4501(1) and the Pennsylvania Superior Court in Field v. Philadelphia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170 (1989).

Furthermore, according to plaintiff, 42 Pa.C.S. §4501(2) provides that “All qualified citizens will have the opportunity to be considered for service as jurors in the courts of this Commonwealth, and shall have an obligation to serve as jurors when summoned for that purpose.” 42 Pa.C.S. §4501(2). However, defendants suggest that, in enacting 42 Pa.C.S. §4563, the Pennsylvania General Assembly desired to strip employees of small businesses of their opportunity to participate in the judicial process by serving as jurors and their obligations to serve as jurors when summoned for that purpose. Such an interpretation would produce discriminatory results by prohibiting employees of small businesses from exercising their rights to participate in the judicial process. Similarly, employees of small businesses would be understandably confused as to whether they would be subject to fines for not fulfilling their obligation to serve as jurors when summoned for that purpose. Moreover, if defendants’ interpretation were correct, it would raise the question, “For what purpose does an employee of a small business receive a summons for jury duty?” Therefore, defendants’ contention directly contradicts the clearly stated public policy of this Commonwealth announced in 42 Pa.C.S. §4501(2).

Additionally, according to plaintiff, defendants’ argument that 42 Pa.C.S. §4563 permits small business employers to freely and willfully terminate employees who have complied with well-established public policy by serving on a jury indirectly contradicts 42 Pa.C.S. §4501(3) by excluding citizens from service as a juror on the basis of race, religion, sex, national origin or economic status, because of the inherent demographic differences between employees of small businesses and those of large businesses. 42 Pa.C.S. §4501(3). According to plaintiff, it is clearly absurd and unreasonable to believe that the Pennsylvania General Assembly sought to enact legislation that would produce such blatantly discriminatory results.

Also, according to plaintiff, defendants’ interpretation of 42 Pa.C.S. §4563 would also produce the unreasonable result of overburdening the Pennsylvania judicial system by effectively eliminating an extremely large portion of the juror pool. Not only would the judicial system face difficulty in securing the proper amount of jurors to maintain an efficient process, but the employees of large businesses would be forced to serve an unfair amount of jury duty to make up for the loss of so many potential jurors.

DISCUSSION

Too often, lawyers lament that if only they could obtain a truly representative jury, one that includes a trae representative cross-section of the community (i.e., a fair share of business owners, professionals, and broad base working Americans) then jurors would reach well-reasoned decisions that more accurately reflect community mores, values, and fundamental fairness. Unfortunately, the laws including the provisions and interpretation that defendants request we make as to employees in any retail or service industry employing fewer than 15 persons, or by implication any employer in any manufacturing industry employing fewer than 40 persons, would allow too many people to avoid jury service. While we could only speculate on the number of people who could arguably opt out of jury service in Philadelphia, in our home county of Northumberland, with the exception of our largest employer (Northumberland County which number approximately 1,000) and retired persons, the majority of our work force would fall within the ambit of section 4563(d). As indicated by plaintiff, such a result, absent more express language by the legislature, is absurd or unreasonable. More persuasive and rational is that by adding subsections (d) and (e) to the statute in 1982 (we note subsequent to and in awareness of the court’s ruling in Reuther), the legislature sought to exclude employers in the defendants’ class from the criminal summary offense and civil penalties set forth in subsections (b) and (c); and not to eliminate an employee’s right to bring a claim for wrongful discharge when terminated for serving on a jury. In our view, the mischief created by such an interpretation is discriminatory, contrary to the intent of the other provisions set forth in the declaration of policy, and the clear exemptions for jury duty; as well as presenting an administrative nightmare for judges and jury administrators who are struggling with the problem of encouraging more people to serve on juries at a time when recent studies show a reluctance to serve on jury duty, leading to a crisis in several jurisdictions.

During our research on this issue we came across an article by the American Legislative Exchange Counsel (ALEC). ALEC, which is the nation’s largest bipartisan individual membership organization of state legislatures with over 2,400 legislative members from all 50 states, noted the following:

“ ‘The right to a jury trial is perhaps the most unique characteristic of the American justice system. Not surprisingly, today’s national polls indicate that Americans continue to hold the jury system in the highest regard,’ said Duane Parde, ALEC’s executive director. ‘It is indeed ironic, however, that despite the long-standing support Americans have for the jury system, many in the public appear to avoid jury service at virtually every opportunity.’
“According to one study by the American Judicature Society, on average, about 20 percent of those summoned to jury duty each year in state courts do not respond. Poor juror turnout in several jurisdictions has reached crisis levels. In some urban jurisdictions, for example, fewer than 10 percent of all summons show up in court.
“In addition, 26 states still permit automatic exemptions for professionals, such as attorneys, clergy members, doctors and accountants. For those unable to receive professional exemptions, hardship excuses are handed out liberally, further depleting the jury pool.
“ ‘Many citizens unfairly benefit from legal loopholes that make avoiding jury service easy and many others simply ignore their civic obligation to serve,’ added Kristin Armshaw, director of the Civil Justice Task Force at ALEC. ‘That’s why making jury service more appealing and rewarding to citizens is so critical. Plaintiffs and defendants in both civil and criminal cases deserve to receive a fair trial before a true jury of their peers. The Jury Patriotism Act will help strengthen our jury system, and this report explains how,’ said Armshaw.”

Out of curiosity, we secured a copy of the American Legislative Exchange Council, Model Jury Patriotism Act (attached hereto) [not published herein] and noted in summary form what the proposed law (which was most recently approved by Arizona) does:

* Establishes a lengthy trial fund funded by a small additional filing fee to be determined by the State Supreme Court. This would enable those who would experience undue financial hardship by serving to be compensated by lost wages.

* Increases the standards for hardship excuses.

* Protects a juror from being fired or having to use vacation pay during service.

* Increases the penalty for ignoring a jury summons.

* Grants one automatic postponement to make it easier to reschedule.

* Insures that if a person serve on the jury he or she will not be called up for two years.

Most noteworthy, given the issue in this case, is the provision that aims at protecting small businesses similar to the mitigating provisions of the Act we just ruled on. Since under our present provisions it is possible for more than one employee of a business to be called for jury service during the same period, such a circumstance, though perhaps rare, may be particularly hard on labor-intensive small businesses. For this reason, the model Act requires the court to postpone and reschedule if a second employee of the business is already serving on a jury. This provision of the model Act is supported by employer groups including the National Federation of Independent Business (NFIB).

A second important change contained in the Jury Patriotism Act would be to reduce the length of time one would be expected to serve on a jury. Such a system is already in place in many of the counties that we have presided over. Also, service can be made more appealing by guaranteeing potential jurors that they will not be required to spend more than one day at the courthouse unless they are selected to serve on a jury panel; in the event of the latter, they would be limited to one trial. This practice is generally known as the “one-day/one-trial” system. It has been adopted by about half of state courts nationwide and is included in the ALEC Model Act. Courts have embraced the one-day /one-trial system as a response to high refusal rates, the inconvenience and hardship resulting from lengthy terms on those who are unable to obtain an excuse, and the frustration and boredom imposed on jurors. Recently, the National Center for State Courts recognized the one-day/one-trial system as a particularly effective practice. According to the NCSC, “No state court that has made the change to the shorter term of service has looked back and returned to the former practice.”

Finally, a third major provision deals with the issue at hand (we acknowledge the factual dispute as to the basis for termination) — protecting employment rights. In the release by ALEC they acknowledge most states prohibit employers from terminating or threatening to terminate an employee because he or she takes time off to serve on a jury. They noted several states go further and protect employees from any adverse action taken as a result of their responding to a jury summons. The Jury Patriotism Act provides even more protection for employees. It explicitly states that a business may not require its employees to use their annual vacation, or sick leave time for jury service. This is a provision that this court recently became aware of during an impanelment of a statewide investigative grand jury. In any event, according to ALEC, employees should not fear that by responding to a juror summons they may be required to sacrifice their annual vacation. This provision according to ALEC, is one reason why the AFL-CIO supports the ALEC Model Act.

In conclusion, as indicated, most states prohibit employers from terminating or threatening to terminate an employee because he or she takes time off to serve on a jury. We are persuaded that the statutory provisions the defendant relies on were not the exclusive remedy to an employee terminated for serving on jury duty and we therefore enter the following:

And now, October 27,2003, defendants’ motion for a summary judgment is hereby denied.