author: HODGSON, J,

text:
    Ball v. Ehlig

      C.R of Montgomery County,
    nos. 04-08007, 04-28772.

      Matthew D ’Annunzio and Matthew D. Lee, for plaintiffs.

      Michael V. Tinari and Paul H. Schultz, for defendants.
    January 31, 2005
   HODGSON, J,

FACTS AND PROCEDURAL HISTORY

Russell C. Ball and Larry Heck, plaintiffs, instituted suit against defendants John Ehlig, Mark D. Lee and Baymont Technologies Inc. alleging the unlawful recording of telephone calls without the plaintiffs’ knowledge or consent pursuant to the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §5701. The subject of the telephone calls concerned the business relationship between Philadelphia Mixers, a Pennsylvania corporation of which plaintiff Ball is CEO and plaintiff Heck is an employee, and its sales representative, Baymont, a Texas corporation.

On or about May 19, 1997, Baymont and Philadelphia Mixers entered into a sales manufacturer’s representative contract (agreement). The agreement provided that Baymont would serve as Mixers’ sales representative for its product within the Texas marketplace. Beginning on or about February 1, 1999, Baymont began to arrange for sales of Mixers’ products in Texas. Baymont received commissions from Mixers for these sales pursuant to the agreement. At no time did Baymont receive products from Mixers; rather, Baymont’s activities were limited to arranging sales between Mixers and third-party customers and receiving commissions from Mixers. On or about April 29,2002, Baymont provided notice to Mixers that it was canceling the agreement. Subsequently, defendants filed suit against Mixers to recover commissions due under the agreement. This action was brought in Texas in February 2003 and is still a viable case. During the course of discovery, defendants admitted that they had recorded telephone conversations between defendants and plaintiffs. Upon discovering the recorded conversations, plaintiffs brought suit in Pennsylvania.

The suits were filed in Pennsylvania and defendants filed preliminary objections to the complaints. Subsequently, plaintiffs filed preliminary objections to defendants’ preliminary objections that asserted lack of jurisdiction.

DISCUSSION

We find that these cases must be dismissed since our court lacks jurisdiction over the named defendants pursuant to Pa.R.C.P. 1028(a)(1). Moreover, even if we did have jurisdiction over the defendants, the case should be dismissed for failure to state a claim pursuant to Pa.R.C.P. 1028(a)(4).

Plaintiffs ’ Complaint Must Be Dismissed Pursuant to Pa.R.C.P 1028(a)(1) Because This Court Lacks Jurisdiction Over the Named Defendants

Parties may file preliminary objections asserting lack of jurisdiction in accordance with Rule 1028(a)(1) of the Pennsylvania Rules of Civil Procedure. Pursuant to the Judiciaiy Act, 42 Pa.C.S. §5301 et seq., the Commonwealth may exercise two types of personal jurisdiction over a nonresident defendant: general and specific personal jurisdiction. Once a jurisdictional defense has been properly raised, the plaintiff bears the burden of demonstrating sufficient contacts with the forum state in order to confer personal jurisdiction. Derman v. Wilair Services Inc., 404 Pa. Super. 136, 590 A.2d 317 (1991). We find that the defendants have correctly raised a jurisdictional defense in their preliminary objections. Therefore, we must determine whether the plaintiffs’ contentions meet the threshold requirement of contacts with Pennsylvania to extend personal jurisdiction over the defendants.

Initially, we considered whether we have general jurisdiction over the defendants. General personal jurisdiction, arising from a defendant’s general relationship with the forum, may only .be established where it can be shown that a defendant had “continuous and systematic” contacts with the forum. Helicopteros Nacionales de Columbia S.A. v. Hall, 466 U.S. 408, 414-15 (1984). The facts of this case do not support a finding of general personal jurisdiction since there is no evidence that the defendants have engaged in any measure of constant and regular contacts with Pennsylvania. The only evidence the plaintiffs have provided to support jurisdiction are occasional e-mails and telephone communications over the five-year business relationship. Pennsylvania courts have determined that telephone contacts alone are insufficient to confer personal jurisdiction over a nonresident defendant especially when the telephone call itself forms the basis for the action brought by the defendant. Reliance Steel Products Co. v. Watson, Ess, Marshall & Enggas, 675 F.2d 587, 589 (3d Cir. 1982). Therefore, this evidence is insufficient to exercise general personal jurisdiction over defendants.

Secondly, we must decide whether we have specific jurisdiction over the defendants. Specific personal jurisdiction, arising from the defendants’ specific conduct at issue, can only be established where it is shown that the defendant had minimum contacts with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). “A court may exercise in personam jurisdiction over a nonresident if (1) jurisdiction is conferred by the state long arm statute; and (2) the exercise of jurisdiction under the statute meets the constitutional standards of due process.” Engle v. Engle, 412 Pa. Super. 425, 430, 603 A.2d 654, 657 (1992), citing Hewitt v. Eichelman’s Subaru Inc., 341 Pa. Super. 589, 492 A.2d 23 (1985).

In this regard, we are required to examine the Pennsylvania long arm statute to determine whether it confers jurisdiction in this scenario. The statute permits jurisdiction to be exercised “to the fullest extent allowed under the constitution of the United States and may be based upon the most minimum contact with this Commonwealth under the constitution of the United States.” 42 Pa.C.S. §5322(b). Therefore, this test turns on whether subjecting the defendant to suit in Pennsylvania would deprive the defendant of his constitutional right to due process. Engle, 412 Pa. Super, at 430, 603 A.2d at 657. “The Due Process Clause of the Fourteenth Amendment to the United States Constitution allows personal jurisdiction over a nonresident defendant where the defendant has ‘certain minimum contacts . . . such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” Engle at 431, 603 A.2d at 657, quoting International Shoe Co. at 316.

Pennsylvania has adopted the minimum contacts test as announced by the United States Supreme Court in Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), in order to determine whether jurisdiction may be asserted over a nonresident defendant. The facts of this case do not support the minimum contacts requirement to assert specific jurisdiction over the nonresident defendants. The agreement between the parties provided that the defendants would arrange the sales of Mixers’ products to third-party customers. The defendants never received the actual products from Mixers. The agreement was negotiated without defendants’ presence at any time in Pennsylvania. Defendants received their commissions in Texas. Moreover, the plaintiffs seem to base jurisdiction on the interstate telephone calls and e-mails between the parties over the past five-year relationship, which are inadequate to meet the minimum contacts requirement to exercise specific jurisdiction over the defendants.

Alternatively Plaintiffs ’ Complaint Must Be Dismissed Pursuant to Pa.R.C.P. 1028(a)(4) Because Plaintiff Fails To State a Claim Upon Which Relief Must Be Granted

Even if we were to find that Pennsylvania could properly exercise jurisdiction over defendants, we must still determine whether plaintiffs have stated a proper claim for relief. Under Texas law, a party to a telephone conversation is permitted to record the conversation without the consent of the other party. V.T.C.A., Penal Code §16.02. This approach is in clear contrast to the Pennsylvania statute, which requires that both parties to the conversation consent to its recording. 18 Pa.C.S. §5725. Since there is a direct conflict between the laws of Pennsylvania and Texas with regards to this issue, it is necessary to apply a choice-of-law analysis to determine which state’s law applies.

A choice-of-law analysis in Pennsylvania is comprised of two parts. First, the court will consider a number of factors listed in section 145 of Restatement (Second) Conflict of Laws. These factors are:

“(a) the place where the injury occurred;

“(b) the place where the conduct causing injury occurred;

“(c) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and

“(d) the place where the relationship between the parties is centered.”

Next, the court must conduct an interest analysis to determine which state has a greater interest in the application of its laws in this case. Such an analysis focuses on some or all of the following factors, in addition to other considerations:

“(a) the needs of the interstate and/or international systems;

“(b) the relevant policies of the forum state;

“(c) the relevant policies of the other interested states along with the interest of those states in determining the issue;

“(d) the protection of justified expectations;

“(e) the basic policies underlying the particular field of law;

“(f) certainty, predictability and uniformity of result; and

“(g) ease in the determination and application of the law to be applied.” Restatement (Second) Conflict of Laws §6.

The facts of Larrison v. Larrison, 750 A.2d 895 (Pa. Super. 2000), and Broughal v. First Wachovia Corp., 14 D.&C.4th 525 (1992), are very similar to the facts of our case. In Larrison, the plaintiff was a Pennsylvania resident and the defendant was a New York resident. The defendant recorded a conversation between the parties without the plaintiff’s consent. The New York Wiretap Law requires the consent of only one of the parties, as does Texas. The Superior Court engaged in a choice-of-law analysis and found that

“New York possessed the greater interest in allowing its citizens to record telephone conversations lawfully with only the consent of the sender or receiver. While this Commonwealth has an interest in protecting its citizens from having telephone conversations recorded without proper consent, we, as the courts of this Commonwealth, have no power to control the activities that occur within a sister state.” Id. at 898.

The court went on to apply New York law to the facts of the case and was unable to find a basis for a violation under the New York wiretapping law.

In Broughal, one óf defendant’s employees recorded business communications with plaintiff while defendant’s employee was in North Carolina. The plaintiff initiated the first call while defendant initiated the second call. Both conversations were recorded by defendant’s employee at the North Carolina location. “The Commonwealth does not have general power to control criminal conduct which occurs outside its borders.” Id. at 531 citing Commonwealth v. Firestone, 253 Pa. Super. 577, 385 A.2d 489 (1978). “It is undisputed the interception and recording took place in North Carolina only...” the Act does not apply to legal interception of communications beyond Pennsylvania borders, nor to Pennsylvania disclosures of wire communications lawfully intercepted by the actor in a foreign jurisdiction. Id. at 532-33.

In the case at bar, the applicable factors do not support the application of Pennsylvania law. Specifically, defendants were situated in Texas at all times relevant to the conduct of this litigation and the recording of the interstate conversations took place in Texas. The state of Texas has a greater interest in allowing its citizens to record telephone conversations legally with only the consent of one party. Additionally, we find that, since defendants were located in Texas when the recording took place and the actual act of recording took place in Texas, they were justified in expecting Texas law to apply to their actions. The Superior Court has held that “[j jurisdiction in criminal matters rests solely in the courts of the state or country in which the crime is committed.” Commonwealth v. Firestone, 253 Pa. Super. 577, 579, 385 A.2d 489 (1978). Therefore, under a choice-of-law analysis, Texas law should apply to the instant case and as such it follows that there is no violation of Texas law. Accordingly, we enter the following orders:

ORDER

And now, Januaiy 31,2005, upon consideration of the preliminary objections of plaintiffs to the amended preliminary objections of defendants, it is hereby ordered and decreed that said preliminary objections are overruled.

ORDER

And now, January 31,2005, upon consideration of the amended preliminary objections of defendants, and plaintiffs’ response thereto, it is hereby ordered and decreed that said amended preliminary objections are sustained and plaintiffs’ complaints are dismissed.

      . Plaintiff Ball’s complaint was first filed in Montgomery County while plaintiff Heck’s complaint was first filed in Lebanon County. The court consolidated the two cases against the named defendants on September 16, 2004 to be heard in Montgomery County pursuant to Pa.R.C.P. 213.1.

      . Although not addressed in the memorandum opinion, we find plaintiffs’ preliminary objections to be without merit.


source: Caselaw Access Project

author: BURR II, J,

license: Public Domain

text:
    Reyer v. Marvin E. Kanze Inc.

      C.P. of Delaware County,
    no. 03-51495.

      Aaron S. Friedmann, for plaintiff.

      H. Finían McHugh, for defendant.
    January 7, 2005
   BURR II, J,

The plaintiff, John Reyer, has appealed from the court’s order of June 14, 2004, denying his motion to reconsider and vacate the judgment of nonsuit entered in the above-captioned matter on March 23, 2004, when plaintiff did not appear for an arbitration hearing. Inasmuch as plaintiff failed to timely preserve his appellate rights emanating from the entry, on May 10, 2004, of an intervening final and ap-pealable order which denied his motion to vacate the judgment of nonsuit (deemed to have been in the nature of a motion for post-trial relief), this appeal must be quashed. In addition, plaintiff was ordered to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), but did not do so. Therefore, even if plaintiff had properly perfected his appellate rights, this appeal is dismissible outright. Caln Nether Company L.P. v. Board of Supervisors of Thornbury Township, 840 A.2d 484 (Pa. Commw. 2004), appeal denied, 856 A.2d 835 (Pa. 2004) (table) (appellate procedural rule requiring a concise statement of matters complained of on appeal is a crucial component in the appellate process intended to aid trial judges in identifying and focusing on the issues presented, and contentions not so provided are deemed waived). Nonetheless, because the Superior Court has postponed decision on the motion to quash pending submission of appellate argument on the matter, it was presumed that a more thorough exegesis of the facts surrounding the case would be helpful and, in that light, this discussion will proceed.

Plaintiff sued the defendant in the District Court of Havertown, Delaware County, Pennsylvania, contending negligent bailment and conversion, in order to recover tools allegedly valued at $8,000 and inadvertently abandoned when, on February 14, 2001, plaintiff suffered an injuiy while in the employ of the defendant. (Complaint, passim and exhibit B appended thereto.) Judgment was entered by the district justice on June 9, 2003, in favor of the plaintiff in the amount of $5,973.40, and the defendant timely appealed on June 25,2003. An arbitration hearing was scheduled for March 23, 2004, and the requisite notice in writing was provided to the parties. Pennsylvania Rule of Civil Procedure 1303(1) and (2). Defendant’s notice of appeal included a praecipe to enter a rule to file complaint by the plaintiff within 20 days after service thereof. The rule page bore the stamped arbitration hearing date of March 23, 2004. On July 16, 2003, the defendant filed a praecipe to mark the appeal stricken and a request for the entry of a non pros after plaintiff failed to file a complaint in response to the rule. Plaintiff filed a complaint on July 22, 2003. In addition to the stamped file date of the complaint, there is a crossed-out stamped arbitration hearing date of “April 20, 2004” on the “Notice to defend” page affixed to the face thereof.

On August 8,2003, some 19 days following the filing of the complaint, plaintiff filed a motion to reinstate the [defendant’s] appeal from the decision of the district justice. Plaintiff averred in this motion that defendant had failed to deliver the rule returnable notice to his counsel of record, and, instead, merely copied the plaintiff himself. Plaintiff contended that defendant had also failed to give plaintiff’s counsel timely notice of any intent to mark the appeal as stricken and never forwarded a 10-day notice of intent to obtain a non pros of plaintiff’s cause of action. Paragraph two of the motion to reinstate the appeal expressly stated: “Defendant took an appeal which listed the matter for arbitration on March 23, 2004.” Plaintiff appended a copy of the notice of the March 23, 2004 hearing date as exhibit B to the motion to reinstate the appeal, and concluded this motion with the plea, “Wherefore, plaintiff respectfully request [sic] that plaintiff’s [sic] appeal be reinstated and this matter be allowed to go to arbitration on the prescribed date of March 23, 2004.” (Motion to reinstate appeal, ad dam-num clause, p. 3.) There was no allegation in this motion of an erroneously stamped arbitration date of April 20, 2004, nor of any misapprehension on plaintiff’s part as to the accurate date of the arbitration hearing that was correctly scheduled, according to Delaware County, PA, Local Rule of Civil Procedure *1303(a)(l)(i), to take place 270 days after the filing of the defendant’s appeal, or on March 23, 2004. By order dated September 24, 2003, the Honorable Harry J. Bradley allowed defendant’s appeal from the decision of the district justice to be reinstated. Judge Bradley’s order is silent as to any arbitration hearing date. Defendant filed an answer and new matter to the complaint on December 5,2003. When plaintiff failed to appear at the arbitration hearing on March 23, 2004, this court entered a judgment of non-suit in favor of the defendant and against the plaintiff pursuant to Pennsylvania Rule of Civil Procedure 1303(b)(2) and Delaware County, PA, Local Rule of Civil Procedure * 1303(b) (2)(i).

Delaware County Local Rule of Civil Procedure * 1303(b)(3) provides, “[s]hould a nonsuit be entered under this rule, it is subject to the filing of a motion under Pennsylvania Rule of Civil Procedure 227.1(a)(3) for post-trial relief to remove the nonsuit.” See also, Pennsylvania Rule of Civil Procedure 1303 note and explanatory comment — 1998. The 1998 explanatory comment to Pennsylvania Rule of Civil Procedure 1303 also states that, “if the court hears the matter, then the parties have had their trial [de novo] in the court of common pleas” and that, “Rule 218 governs the instance when a party is not ready when a case is called to trial.” Rule 218(a) allows the court to enter a nonsuit when the plaintiff fails to appear without satisfactory excuse. Pennsylvania Rule of Civil Procedure 218(c) additionally provides that “[a] party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.” As noted herein-above, the above-cited rules of court required the plaintiff to seek post-trial relief following his failure to appear at the trial de novo conducted by the court on the date upon which he failed to appear at the scheduled arbitration hearing. The plaintiff accordingly filed, on April 5,2004, a motion to vacate nonsuit, deemed to have been in the nature of a motion for post-trial relief.

Plaintiff reiterated, in the motion to vacate the nonsuit, matters alleged in his motion to reinstate the appeal, including the claim that defendant had not delivered the aforesaid rule returnable to plaintiff’s counsel, but had “merely copied plaintiff, disregarding counsel of record.” (Plaintiff’s motion to vacate nonsuit, paragraph 3.) Plaintiff alleged for the first time, however, that “[o]n or about July 22, 2003, the instant matter was given an arbitration date of April 20, 2004, in Delaware County Court of Common Pleas.” (Id., paragraph 4.) Plaintiff went on to aver in this motion that, “[u]pon reinstatement of the instant claim, and without notice to counsel, the arbitration date was rescheduled to March 23,2004.” (Id., paragraph 12.) It goes without saying that allegations reiterated from the motion to reinstate the appeal were mooted by Judge Bradley’s order. It is also beyond cavil that plaintiff’s past and present admissions to knowledge of the correct arbitration hearing date of March 23, 2004, rendered his representations that this particular date had been sprung upon him as utterly disingenuous. In any event, plaintiff went even further afield by alleging that, “Plaintiff’s wife contacted [plaintiff’s] counsel just days before the new arbitration date to inform him of the rescheduling, but erroneously indicated a date of March 24, 2004, for the arbitration,” and that “Plaintiff had every intention of proceeding with the arbitration on March 24, 2004.” (Id., paragraphs 12-13.) Plaintiff concluded the motion to vacate nonsuit with averments that his attorney received oral notice (from court personnel), that the correct arbitration hearing date was on March 23, 2004, “only minutes before it was scheduled to begin and was unable to attend because he was in the middle of a deposition.” (Id., paragraph 14.)

In summary, plaintiff complained in the motion to vacate nonsuit of “reasonable error” in counsel’s failure to appear on a miscommunication from plaintiff’s wife as to the correct date of the arbitration hearing. In the same motion, plaintiff contended both an incorrect arbitration hearing date of April 20,2004, while admitting his knowledge that the correct date thereof was March 23, 2004, and alleging as a reasonable excuse for his failure to appear his wife’s purportedly having miscommunicated yet a third hearing date of March 24, 2004, to counsel. No evidence was submitted which showed that plaintiff’s counsel, who was clearly charged with the duty of knowing that the arbitration hearing of the case would take place 270 days after the filing of the defendant’s appeal from the decision of the district justice, did not receive notice of the correct date for the arbitration hearing, nor law which alternatively established a duty in plaintiff’s wife to provide accurate notice to counsel thereof. TTMAR Inc. v. Sulka, 402 Pa. Super. 319, 321, 586 A.2d 1372, 1373 (1991), appeal denied, 530 Pa. 656, 608 A.2d 31 (1991) (counsel is under a high duty of care to learn and familiarize himself with the local rules of all forums in which he chooses to practice law); Township of South Fayette v. Grady, 145 Pa. Commw. 129, 132, 602 A.2d 482, 483 (1992), citing to Toczylowski v. General Bindery Co., 359 Pa. Super. 572, 519 A.2d 500 (1986) (it is well established that counsel is under an obligation to keep abreast of the publications to the bar and local rules of court). When court procedures raise a presumption that counsel for the parties involved have received legal notice of the time and place of trial, “[t]he court is required to do no more[,]” and when counsel is deemed to have notice of a trial-related event, failure on the part of counsel to actually receive notice cannot be a satisfactory excuse as contemplated in Pennsylvania Rule of Civil Procedure 218(c); Township of South Fayette v. Grady, supra, 145 Pa. Commw. at 132, 602 A.2d at 483.

A satisfactory excuse for failure to appear at trial must be an excuse that would constitute a valid ground for a continuance. Jamison v. Johnson, 762 A.2d 1094, 1097 (Pa. Super. 2000), appeal denied, 566 Pa. 644, 781 A.2d 145 (2001) (table), citing to Goodrich-Amram 2d §218:3. “Examples of valid grounds are an ‘agreement of counsel; illness of counsel, a party, or a material witness; inability to maintain the testimony of an absent witness by means of discovery; or such other grounds as may be allowed by the court.’ ” Id. The failure of the plaintiffs in Jamison v. Johnson, supra, to attend an arbitration hearing due to a pre-paid vacation trip, along with the failure of their attorney to attend due to a family illness and the inability to procure another attorney to handle the matter, were found not to fall within the framework of “satisfactory excuse.” Jamison v. Johnson, supra, 762 A.2d at 1097. Failure to appear at trial without calling the court or contacting opposing counsel pursuant to Rule 218(c), is per se unreasonable. Pa.R.C.P. 218(c); Taylor v. MacLaren, 32 Phila. 193 (1995). Inadvertence of counsel is not a reasonable excuse for failure to appear at a scheduled arbitration hearing. Anderson v. Pennsylvania Financial Responsibility Assigned Claims Plan, 432 Pa. Super. 54, 637 A.2d 659 (1994); Pisano v. SEPTA, 28 Phila. 34 (1994), citing to Bottero v. Great Atlantic & Pacific Tea Co. Inc., 316 Pa. Super. 62, 462 A.2d 793 (1983). Finally, if inadvertence of counsel is no reasonable excuse for failure to appear at a scheduled arbitration hearing, then it clearly stands to reason that neither is the inadvertence of counsel’s client’s wife. The court’s order denying plaintiff’s motion to vacate nonsuit was entered in the docket on May 10, 2004.

The record reflects that, instead of filing a notice of appeal from the foregoing final and appealable order which disposed of his one and only cognizable motion for post-trial relief, plaintiff submitted what he contended in the response to the defendant’s motion to quash appeal (also supplied to this court), to be a second post-trial motion in the form of a motion to reconsider and vacate [the] judgment of nonsuit entered on March 23, 2004. Plaintiff again related in this motion that his attorney (and the attorney’s “lone associate”) had been engaged in unrelated activities for the law firm when counsel was notified by the arbitration center that the arbitration hearing was underway, and that counsel would have appeared for the hearing had that not been the case. (Id., paragraphs 9-10.) Plaintiff then submitted, in the memorandum of law in support of the motion to reconsider, and despite his own prior representations and admissions to the contrary and an utter lack of foundation for the claim, an entirely new representation that, “upon reinstatement of the instant claim, and without notice to counsel, the arbitration date was rescheduled to March 23, 2004, instead of the previously agreed upon date of April 20, 2004.” (Memorandum of law in support of plaintiff’s motion to reconsider, p. 2, emphasis added by the court.) It goes without saying that there is no prior reference to, nor evidence of, any such “agreement” whatsoever and that the record is shockingly replete with plaintiff’s acknowledgment of his awareness of the correct arbitration hearing date of March 23, 2004. The record is also clear that plaintiff has traveled all over the proverbial map in proffering excuse after incredible excuse for his failure to appear. The order denying plaintiff’s motion to reconsider and vacate [the] judgment entered on March 23, 2004, was docketed on June 14, 2004. Notice of plaintiff’s appeal from that order was filed on July 13, 2004. As hereinabove noted, because plaintiff did not file a timely notice of appeal from the intervening and final order of May 10, 2004, which denied his prayer for post-trial relief, the instant appeal from the order denying his motion to reconsider that decision must be quashed in spite of plaintiff’s misguided belief that it too was a post-trial motion.

The question of timeliness of an appeal is jurisdictional. In re Trust Under Deed of Green, 779 A.2d 1152 (Pa. Super. 2001), appeal dismissed, 572 Pa. 408, 816 A.2d 224 (2003). A notice of appeal must be filed from a final order of the trial court within 30 days after entry of the order in order for appellate jurisdiction to attach. Pennsylvania Rule of Appellate Procedure 903(a); Valley Forge Center Associates v. Rib It/K.P. Inc., 693 A.2d 242, 245 (Pa. Super. 1997). The filing of a petition for reconsideration of a final order does not toll the 30-day appeal period. Cheathem v. Temple University Hospital, 743 A.2d 518 (Pa. Super. 1999). As the note to Pennsylvania Rule of Appellate Procedure 1701 explains, “[t]he better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal [in the appellate court].” A simultaneous filing of a notice of appeal is necessary to preserve appellate rights in the event that either the trial court fails to grant the petition expressly within 30 days, or it denies the petition. Valley Forge Center Associates v. Rib It/K.P. Inc., supra, 693 A.2d at 245. In the instant case, the plaintiff/appellant believed that his appellate rights were on a 106-day continuum from the date of notice of this judgment on March 29, 2004 through July 13, 2004, when he filed his notice of appeal from the entry of the order on June 24,2004, which denied his motion for reconsideration. The appeal period following the date of notice (on May 10, 2004) of the entry of the order denying his motion for post-trial relief concluded 30 days later on June 9, 2004. However, instead of filing a notice of appeal before that time had elapsed, plaintiff filed the reconsideration motion on May 18,2004, well within the time allowable for appeal, yet waited to file a notice of appeal until after the unappealable order denying his motion to reconsider and vacate the judgment entered on March 23,2004, had been issued on June 24, 2004.

The only discernible, albeit, unsupportable, reason for plaintiff’s failure to follow the Rules of Appellate Procedure that clearly set forth a 30-day deadline for filing notice of appeal from a final order can be found in the aforesaid response to the defendant’s motion to quash [this] appeal. Therein, plaintiff asserted through counsel that he had filed “two post-trial motions in the instant matter, both of which were timely filed.” (Plaintiff’s response to defendant’s, Marvin E. Kanze Inc.’s, motion to quash, paragraph 5, emphasis added by the court.) Plaintiff contended that the two motions in question were the original motion to vacate the judgment and the motion for reconsideration, and that he assumed he had to wait until the latter had been disposed of before he could file an appeal for fear of divesting this court of jurisdiction to grant the relief requested. (Id.) Unfortunately for plaintiff and his attorney, they were simply wrong in the assumption that a motion for reconsideration of denial of a post-trial motion was also a post-trial motion and that it was necessary to wait until both had been decided before an appeal could be filed. Where counsel obtained this view is a question that is simply beyond the purview of the courts and more aptly within that of state bar examiners and law school curriculum developers. Suffice it to say that, had counsel bothered to study the applicable rules of court and the law attendant thereto, as any reasonable attorney would, plaintiff, most assuredly, would have found himself in a better position than the one he is in today.

For all of the foregoing reasons, it is respectfully submitted that, because plaintiff failed utterly to demonstrate any credible reason for this court to grant the relief requested, this appeal is fatally flawed. Further, because jurisdiction is lacking in the Pennsylvania Superior Court, it must be quashed.

      . This court is mindful of the Superior Court’s order of September 8,2004, in this appeal, docketed at number 2028 EDA 2004, denying the motion of the defendant/appellee, Marvin E. Kanze Inc., to quash appeal as untimely without prejudice to the appellee’s rights to raise the issue at the time scheduled for submission of appellate argument. It is here noted that appellee there alleged fault in the appellant’s failure to appeal directly from the judgment of nonsuit entered against him on March 23, 2004. Nevertheless, under the circumstances presented sub judice, plaintiff was permitted to, and did, file amotion for post-trial relief in the form of a motion to vacate the judgment of non-suit. Delaware County, PA, Local Rule of Civil Procedure * 1303(b)(3) (a nonsuit entered under this rule is subject to the filing of a motion under Pennsylvania Rule of Civil Procedure 227.1(a)(3) for post-trial relief to remove a nonsuit). It was the order which denied that relief that was final and appealable, but ignored due to plaintiff’s mistaken belief that the motion for reconsideration also qualified as a post-trial motion that must await disposition before an appeal therefrom could be filed.

      . It is here noted that the order in question bears a typographical error wrongly indicating that the local rule supporting the judgment was “Delaware County Local Rule *1303(b)(2)(iii),” which governs the procedure to be implemented when a defendant is not ready or fails to appear at a noticed arbitration hearing. The record is clear and there has been no dispute that it was the plaintiff who failed to appear at the arbitration hearing, so any future contention with regard to the rule cited in the order has long since been waived.

      . Indeed, the flights of fancy plaintiff took in proffering excuses for his failure to appear painted a factual scenario so nebulous in its underpinnings that attempts to mine it for the truth called to mind the observation of Sir Winston Churchill, late prime minister of Great Britain, in a radio address broadcast on October 1, 1939, as to the difficulty in forecasting Russia’s actions at the beginning of World War II, “[i]t is a riddle wrapped in a mystery inside an enigma.” The Concise Oxford Dictionary of Quotations (second edition), (London: Oxford University Press, 1981), p. 71.

      . This case implicates no dereliction on the part of the court, nor of plaintiff’s counsel’s support staff, respectively, which might have supplied a reasonable excuse for his failure to appear. See e.g., Faison v.
        Turner, 858 A.2d 1244 (Pa. Super. 2004) (trial judge in arbitration appeal abused his discretion in dismissing case where plaintiff’s counsel appeared for trial, but explained that the two hours’ notice of the proceeding earlier that morning allowed for insufficient time to procure the attendance of plaintiff and her expert witness); Thompson v. Houston, 839 A.2d 389 (Pa. Super. 2003) (counsel’s secretary was on sick leave and could not relay phone message that hearing would take place in one hour). Therefore, plaintiff’s reliance upon these authorities is misplaced.


author: O’BRIEN, J,

text:
    Griffiths v. Knoedler Mfg. Inc.

      C.P. of Monroe County,
    no. 2634 Civil 1995.

      Edwin A. Abrahamsen, for plaintiff.

      David E. Heisler, for defendant.
    December 20, 2004
   O’BRIEN, J,

Plaintiffs commenced this action seeking damages for personal injuries sustained by James D. Griffiths while operating a tractor-trailer on September 29,1993, in Monroe County, Pennsylvania. The complaint alleges that the injuries were caused by the collapse of the driver’s seat which was manufactured by the defendant company. After the close of the pleadings and completion of discovery, the defendant manufacturer has filed a motion for summary judgment. Following the submission of briefs and oral argument on December 6, 2004, defendant’s motion is now before the court for disposition.

Pennsylvania Rule of Civil Procedure 1035.2 provides that a motion for summary judgment may be granted if:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

Summary judgment is a means to eliminate the waste of time and resources of litigants and the courts in cases where a trial would be a useless formality. Liles v. Balmer, 389 Pa. Super. 451, 567 A.2d 691 (1989). In a summary judgment proceeding, the court need not determine the facts essential to the case, but only determine if a material issue of fact exists. Kelly by Kelly v. Ickes, 427 Pa. Super. 542, 629 A.2d 1002 (1993). Summary judgment is only properly granted in cases where the right to judgment is clear and free from doubt, with any existing doubts viewed in a light most favorable to the non-moving party. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992); Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991); J.H. ex rel. Hoffman v. Pellak, 764 A.2d 64 (Pa. Super. 2000). In order to determine whether a case is free from doubt, the court may consider pleadings, depositions, answers to interrogatories, admissions and supporting affidavits. Pa.R.C.P. 1035.1. Non-moving parties may not rest upon mere allegations or denials of pleadings. Rather, the non-moving party must set forth specific facts demonstrating that there are genuine issues for trial. Failure to allege such specific facts will result in a summary judgment, if appropriate, against the non-moving party. Pa.R.C.P. 1035.3; Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986); Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989).

Since defendant’s motion for summary judgment is premised on the claim that the plaintiff has sued the wrong defendant, we must examine the procedural history of this proceeding and the defendant in making a proper determination. When this action was commenced, service of process was accepted by Knoedler Mfg. Inc. at 904 East Kent Street, Steator, Illinois. The address where service was made is a registered corporate office for Sturhan Investments Inc., an Illinois corporation. (N/T 13, deposition of Wilhelm Sturhan.) On December 17, 1993, Sturhan Investments purchased the operating assets of the “Seat Line Division of Knoedler Manufacturers.” (N/T 12,13, deposition of Wilhelm Sturhan.) After the original Knoedler Corporation changed its name, Sturhan Investments adopted the name of Knoedler Manufacturers Inc. (N/T 14, deposition of Wilhelm Sturhan.) The agreement for the sale of the assets of the seat line division of Knoedler Manufacturers Inc. included the following provision:

“8.2 Indemnification of seller. Buyer shall indemnify, defend, and hold seller harmless from and against any and all costs, expenses, losses, damages or liabilities (including, without limitation, reasonable attorneys’ fees and accounting fees) incurred by seller with respect to or in connection with (i) claims of third parties regarding the division, the underlying facts of which occurred following the closing, (ii) all product warranty claims made after the closing with respect to the division, and (iii) all product liability claims made after the closing with respect to the division.” (Plaintiffs’ exhibit no. 1.)

In support of his motion for summary judgment, counsel for defendant points out that plaintiff’s accident occurred prior to the incorporation of Sturhan Investments Inc. on November 10, 1993, and the change of that corporation’s name to Knoedler Manufacturers Inc. on December 17, 1993. Counsel for defendant also points out that the defendant named in this proceeding is Knoedler Mfg. Inc. rather than Knoedler Manufacturers Inc. Plaintiffs, on the other hand, contend that the product-line exception to the general rule of non-liability of a successor company establishes responsibility for the defendant in the case at bar for plaintiff’s damages. More specifically, plaintiffs contend that a company who purchases a product line of a pre-existing company can be held liable for the defects in the products manufactured by the predecessor.

Plaintiffs’ argument is supported by the holding of our Superior Court in Dawejko v. Jorgensen Steel Company, 290 Pa. Super. 15, 23, 434 A.2d 106 (1981), where the court held as follows:

“[Wjhere one corporation acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation as the selling corporation, the purchasing corporation is strictly liable for injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor.”

The Superior Court further held that the product-line exception to the general rule of no liability for successor corporations may only be applied when the following three conditions have each been established: (1) the virtual destruction of the plaintiff’s remedies against the original manufacturer caused by the successor’s acquisition of the business, (2) the successor’s ability to assume the original manufacturer’s risk-spreading rule, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer’s good will being employed by the successor in the continued operation of the business. Dawejko, supra. Since defense counsel’s client has continued the manufacturing and marketing of the same seat line products, conditions (2) and (3) are clearly established. However, counsel for defendant argues that the plaintiffs would still have remedies against the original Knoedler Corporation even though it has changed its name. However, in the agreement by the defendant at the bar with its predecessor, the defendant at the bar expressly assumed all product liability claims as part of the indemnification of the seller. Therefore, the plaintiffs would not have a cause of action against the original Knoedler Corporation but only against the defendant properly served in this proceeding. Therefore, we conclude that the plaintiffs have established the applicability of the product-line exception in this proceeding.

Finally, defendant argues that the entity known as Knoedler Manufacturers Inc. was never actually sued because plaintiffs wrongfully designated the corporation in the complaint as Knoedler Mfg. Inc. Therefore, defendant argues that the claim should be dismissed for failure to sue the proper party. It would be strange indeed if the law would permit a party actually responsible for a civil or criminal act to escape accountability because the summons or warrant served on him contained a minute, technical variation to the name of the party. In the case of Wright v. Eureka Tempered Copper Company, 206 Pa. 274, 55 A. 978 (1903), the defendant actually served, and actually responsible, was the Eureka Copper Works, although the defendant was erroneously described as “Eureka Tempered Copper Company.” The lower court refused to allow an amendment to correct the name. Upon appeal, the Superior Court held:

“In this case there is no dispute as to what was intended and what was actually done in bringing the suit. ... He [counsel for plaintiff] served the right party, the manager of the copper works, and thus brought that company into court, but under a wrong name. The mistake in bringing the suit was in the name of the party actually summoned, and not in suing the wrong party, and the amendment should have been allowed.” Wright v. Eureka Tempered Copper Company, supra at 276.

Similarly, in the case at bar, there is no logical reason to grant summary judgment in favor of the defendant due to a slight mistake in the name of defendant’s corporation. The mistake of the plaintiffs in this case is insignificant and should not be the sole reason to prevent a suit from going forward. Plaintiffs should be permitted to file an amendment correcting the corporate name of the defendant. In view of the foregoing, defendant’s motion for summary judgment is denied.

ORDER

And now, December 20, 2004, the motion of Knoed-ler Manufacturers Inc. a/k/a Knoedler Mfg. Inc. for summary judgment is denied.


author: LASH, J,

text:
    Brownlee v. Fenical-Brownlee
    C.P. of Berks County,
    no. 00-12703.

      Robin S. Levengood, for plaintiff.

      Eugene C. LaManna, for defendant.
    October 28, 2004
   LASH, J,

This court held a custody trial on October 26,2004. At issue is the petition of defendant, Patrice Fenical-Brownlee (Mother), to modify the custody order entered August 31, 2001. The court makes the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Edward A. Brownlee (Father), is an adult individual residing at 302 Justa Road, Hamburg, Berks County, Pennsylvania.

(2) Defendant, Patrice Fenical-Brownlee, is an adult individual residing at 2096 Old Route 22, Lenhartsville, Berks County, Pennsylvania.

(3) The parties are the natural parents of a minor child, William R. Brownlee, born July 24, 1994.

(4) The parties were married on November 2, 1991, separated December 2000 and divorced by decree of the Berks County Court of Common Pleas on October 19, 2001.

(5) The parties and the minor child resided together in Ann Arbor, Michigan, from April of 1995 until June of 2000. The parties and the minor child relocated to Berks County in June of2000, residing in the Shoemakersville and Hamburg area from June of 2000 until the parties separated in December of 2000.

(6) Since the date of separation, the minor child has resided with mother.

(7) Both parties reside in the Hamburg School District. From the time the minor child started school, the minor child has always resided in the Hamburg School District. Currently, the minor child attends fifth grade at the Hamburg Elementary School and is doing well in school.

(8) Father is self-employed as a ceramic artist creating and producing ceramic pieces for display and sale at shows primarily in the East/Northeast United States. These shows take place approximately 24 weekends throughout the calendar year, most occurring from May until October.

(9) Mother is employed by the Lehigh Valley Hospital.

(10) Father resides alone.

(11) Mother resides with the minor child.

(12) Mother has a paramour, Edwin W. Bogert, who maintains a separate residence, but does sleep over at Mother’s house on a continuing basis.

(13) The minor child’s maternal grandmother, Carol Fenical, who resides on Old Route 22, Hamburg, Berks County, Pennsylvania, has a close relationship with the minor child and provides some daycare for the minor child.

(14) Father’s immediate family lives primarily in the greater Pittsburgh area, including the paternal grandmother, Kathryn Bernard, and the minor child’s aunt, Elinor Shank. The minor child enjoys a good relationship with the paternal grandmother, his aunt and his aunt’s children, visiting with them on a regular basis.

(15) The Father has no family or employment ties with the Berks County area, but maintains a home here solely for the purpose of having contact with the minor child.

(16) The minor child’s activities at school include playing the trumpet and being a hall monitor. He also has outside activities, including playing the guitar, fishing, playing with his dogs and general recreation.

(17) This action was originally commenced in December 2000 when Father filed a custody complaint.

(18) On Januaiy 3, 2001, this court entered a temporary order providing that Mother would have primary physical custody and Father would have partial custody on certain days, but not overnight.

(19) On August 31,2001, the court entered a final order in which the parties would have joint legal custody of the minor child, Mother would have primary physical custody, Father would have partial physical custody during the school year on alternate weekends from Friday at 6 p.m. until Sunday at 6 p.m., then one week from Tuesday at 3:30 p.m. until Wednesday at 8 a.m., and the next week from Tuesday at 3:30 p.m. until Thursday at 8 a.m. The summers would be equally divided between the parties.

(20) On or about March 21, 2003, Mother filed an “emergency relief petition to modify custody order” alleging, among other things, that Father’s home was uninhabitable and that Father did not provide adequate supervision of the minor child.

(21) By agreement of counsel, the court ordered on April 23,2003, that the petition for emergency relief would become a petition to modify custody and would be processed under the standard procedures for custody matters.

(22) This matter proceeded to the custody master, who issued a report and recommendation. Exceptions were filed and the matter was then scheduled for trial.

(23) During the course of these proceedings, both parties have filed several petitions requesting, among other things, emergency relief, or to hold the other party in contempt of the existing court order.

(24) This court appointed Timothy E. Ring Ed.D. to prepare a psychological evaluation.

(25) Dr. Ring evaluated the parties and the minor child. He requested an evaluation of Edwin W. Bogert, but Edwin W. Bogert refused to appear for an interview.

(26) On July 20,2004, Dr. Ring published his evaluations, which included the following recommendations:

(A) Both parties should share in the legal custody of the minor child;

(B) Mother is a more suitable candidate for primary physical custody;

(C) The present custody schedule appears to adequately meet the minor child’s needs; and

(D) Both parents should be required to take four to six co-parenting sessions facilitated by a mental health professional who has experience in child custody matters. This is to help the parties develop a more effective means of communication or negotiation regarding their parenting of the minor child.

II. DISCUSSION

The issue presented is whether Father’s time with the minor child should be adjusted. Mother requests that Father’s time be limited to alternate weekends and that his weekday schedule be eliminated. Father requests that his weekday schedule be expanded by one additional evening per week.

In making a determination, this court considered the testimony of the parties, Mother’s paramour, Edwin W. Bogert, the in camera testimony of the minor child, the exhibits presented and the psychological evaluation compiled by Dr. Ring.

Mother has several concerns about Father’s care of the minor child. She testified that some of his ceramic work is performed by him in his kitchen near the area where the minor child’s food is prepared. She believes that Father uses chemicals which may be toxic or otherwise harmful to the minor child if the minor child or his food is exposed to the chemicals.

Secondly, Mother complains that Father does not take advantage of his scheduled time with the minor child, missing several appointments over the course of 2004. She explained that the minor child gets very frustrated and angry when Father fails to appear for his scheduled visits.

Third, Mother believes that Father is inattentive when the minor child is at Father’s house. While Father focuses on his work, the minor child wanders around the neighborhood. Fourth, Mother believes that Father does not sufficiently participate in the minor child’s activities.

Father provided an explanation for each of these concerns. Regarding the chemicals, he states that part of the process of creating the ceramics does involve certain chemicals, but these chemicals are nontoxic and totally safe. He does use the kitchen table for some of his work but the food is prepared on the other side of the kitchen and, in any event, he has no concerns regarding the process or the chemicals.

Secondly, he disputes that he is not available for the minor child. There are occasions when he is unavailable due to his employment, but this cannot be avoided. He needs to make a living and in his type of work, he has to be available to travel to shows to sell his wares. Further, he argues that Mother has refused him access to the minor child on numerous occasions when it suited her fancy.

Third, he believes that he is very attentive with the minor child, helping with his school work and with activities. He believes that Mother has moved to curtail activities, including baseball. The minor child was on a baseball team, coached by Father. Father would always have the minor child available when he had custody of the minor child, but Mother would fail to bring the minor child to practice or games when she had custody.

Father also expressed some concerns about Mother’s conduct. He believes that Mother is attempting to phase him out of a relationship with the minor child. She denies him access to the minor child at every opportunity, even to the extent of violating the court order. As stated, she kept the minor child from attending baseball games and practices when scheduled. She files emergency petitions with no merit.

He also had some concerns about her household. There is some indication that Mother may abuse alcohol. She had an accident recently and was charged with driving under the influence of alcohol. That case is pending. Father also believes that her paramour has a drinking problem and that the minor child is scared of the paramour when he is drinking.

Mother denies that she is doing anything to alienate the minor child’s affections for his father. She also denies that the accident was DUI related or that she or her paramour have any problems with alcohol.

The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

This court believes that both parents have a great deal of love and affection for the minor child and are willing to invest their time and energy for the best interests of the minor child.

Mother’s bond with the minor child appears to be better than Father’s. For one, the minor child may have some residual anger with Father based on the separation or because Father is unavailable due to his work schedule. This concern was presented through a set of drawings created by the minor child which express hostility toward Father. This court discussed the drawings with Dr. Ring, who believed that the drawings were an impulse reaction of the minor child at a time when the minor child became upset with Father over a particular incident and does not reflect a long-standing bitterness or enmity. Nevertheless, according to Mother, the minor child is frustrated by Father’s absences or inattentiveness.

It may be that the minor child’s frustration with Father is partly based on the minor child’s unrealistic expectations, due to some extent on Mother’s method of dealing with the issue. For one, Mother appears to dote on the minor child. Her involvement with the minor child when he is not in school is quite extensive. Father, on the other hand, is unable to provide this level of commitment, due to his need to earn a living. Father’s unavailability manifests itself in both the weekly time he has with the minor child and when he travels with the minor child to his shows. If the show is in the Pittsburgh area, Father makes it a habit to visit with his family. This may result in the minor child being watched by Father’s family while Father goes to his shows. While both parties believe the minor child enjoys his time with Father’s family, nevertheless, Father’s absence is felt by the minor child. Mother may also stir up the minor child’s emotions by reminding him of Father’s absences, implying that Father does not wish to be as involved with the minor child as she is.

The law is clear that the fact that a parent must work may not deprive a parent of custody if suitable arrangements are made for the child’s care in his or her absence. K.L.H. v. G.D.H., 318 Pa. Super. 330, 464 A.2d 1368 (1983).

It appears that Mother’s concerns are overblown. While Father’s involvement with the minor child is certainly not as extensive as Mother’s, it does appear appropriate and adequate. If Mother’s goal is, as Father believes, to phase him out, then her agenda is improper. If her goal is to punish Father for being less invested in the minor child than she, by removing time from him, then her method is counterproductive, for the minor child having less time with Father would likely result in the bond between the two becoming weaker, not stronger. In Fatemi v. Fatemi, 339 Pa. Super. 590, 489 A.2d 798 (1985), the Superior Court cautioned that a court must sparingly impose restrictions on the relationship between parent and child and must furthermore impose the least intrusive restriction reasonably necessary to assure the child’s welfare.

The household of Father also appears to be appropriate. There is no evidence that Father is exposing the minor child to unsafe chemicals. Without testimony of a chemist or someone with expert understanding of the nature of Father’s business, Mother’s presentation is nothing more than mere allegation. Father’s testimony adequately explained his knowledge of the industry, the chemicals he uses, and his complete satisfaction that he is not putting the minor child in harm’s way. Further, Father’s belief that Mother is often in contact with Children and Youth Services is more a reflection of Mother’s agenda than it is of Father exposing a minor child to a dangerous environment.

There are also credibility issues regarding Mother. Her denial of any alcohol use, particularly in conjunction with being arrested for driving under the influence, is not credible. In his evaluation, Dr. Ring commented on her attempts to obstruct portions of his evaluation process, of being possibly deceptive in her answers and on the minor child being coached in his responses.

For all the aforesaid reasons, it does not appear appropriate to restrict Father’s time with the minor child any further than is already restricted by the terms of the current order.

That being said, this court is not inclined to expand Father’s time with the minor child either. If Father has difficulty being available for all of his scheduled time with the minor child under the current order, it is likely that he will be less available for any additional time. Further, if his time is increased, and if Father is unavailable for some of his scheduled times, the increase could confuse and frustrate the minor child even further.

Secondly, Father has not presented any evidence which would warrant an increase in his time. The minor child is doing well in Mother’s care. While Father and this court may have some issue with Mother’s method and conduct, the problem is not remedied by reducing her time with the minor child, as this could have an adverse effect on the minor child and serve no positive purpose. A better remedy is for this court to require strict compliance with the terms of the order. If Mother fails to comply, she can be fined or required to pay Father’s attorney’s fees, and Father could receive temporary make-up time with the minor child. Courts are reluctant to disturb existing custody arrangements which have satisfactorily served the best interests of the child. Wiseman v. Wahl, 718 A.2d 844 (Pa. Super. 1998).

It would be in the best interests of this minor child if both parties would move on with their lives, give up the bickering, and respect each other’s method of rearing the minor child. The minor child’s maturity, emotional and psychological well-being would be served if Mother would support Father instead of attacking him and attempting to control and manipulate all circumstances involving the minor child. Father, for his part, has to make every effort to focus on his involvement with the minor child, for this minor child has a hunger for a strong relationship with him. When he is distracted by his employment, he appears detached and the minor child feels he is less important to Father than a particular bowl or jar that Father happens to be working on at the time.

Accordingly, we enter the following order:

ORDER

And now, October 28, 2004, after custody trial held, the petition of Patrice Fenical-Brownlee to modify the custody order of August 31, 2001, is denied. The order of August 31,2001, shall remain in full force and effect.

Upon recommendation of Timothy E. Ring Ed.D., both parents shall participate in four to six co-parenting sessions facilitated by a mental health professional. The counselor shall be agreed to by the parties, or upon failure to agree, appointed by the court on motion of either party. The parties shall share the cost of the sessions on a 50/50 basis.


author:
O’CONNOR, Member,
     GEPHART, Member,

text:
    Office of Disciplinary Counsel v. Bentivegna

      Disciplinary Board Docket no. 156 D.B. 2002.
    April 16, 2004
   O’CONNOR, 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 November 19, 2002, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against Antoinette M. J. Bentivegna, respondent. The petition charged respondent with multiple violations of the Rules of Professional Conduct arising out of her actions in four bankruptcy matters.

A disciplinary hearing was held on April 29, 2003, before Hearing Committee 1.17 comprised of Chair Gilbert J. Scutti, Esquire, and Members Heather Gallagher Tucker, Esquire and Martin N. Lisman, Esquire. Stuart L. Haimowitz, Esquire, represented respondent. Petitioner presented the testimony of four witnesses and introduced joint stipulations of law and fact and 51 exhibits. Respondent offered her own testimony.

The Hearing Committee filed a report on November 6, 2003, finding that respondent violated the Rules of Professional Conduct as charged in the petition for discipline and recommending that respondent be suspended for a period of six months followed by three years of probation with a practice monitor.

Petitioner filed a brief on exceptions on November 24, 2003, urging that respondent be suspended for a term of not less than one year and one day. No opposing exceptions were filed by respondent.

This matter was adjudicated by the Disciplinary Board at the meeting of January 14, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provision of said Rules of Disciplinary Enforcement.

(2) Respondent was born in 1941 and was admitted to practice law in the Commonwealth of Pennsylvania in 1991. Her office is located at 70 W. Oakland Avenue, Suite 314, P.O. Box 942, Doylestown, PA 18901. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has a history of discipline consisting of a private reprimand administered in February of2002. The misconduct leading to the reprimand involved two bankruptcy matters. In the first, respondent made a misrepresentation to the bankruptcy judge and in the second matter respondent failed to appear at a bankruptcy court hearing.

Charge I — Suzanne Brown Bankruptcy Matter

(4) On November 28, 1995, Mrs. Suzanne Brown, acting pro se, filed for bankruptcy in the United States Bankruptcy Court for the Eastern District of Pennsylvania.

(5) Respondent was not counsel for Mrs. Brown.

(6) In 1996, respondent represented Mrs. Brown’s husband, R. Warren Brown, in a bankruptcy court case, which was closed in November 1996.

(7) Respondent’s representation of Mr. Brown consisted of providing legal advice to Mr. Brown as to his options following the issuance of an order by the bankruptcy court dated September 12, 1996, barring Mr. Brown from filing any future bankruptcy petitions for 180 days from the date of dismissal of the petition.

(8) Respondent was aware that once Mr. Brown’s bankruptcy case was dismissed he was barred for 180 days from filing another bankruptcy petition.

(9) On January 13, 1997, Comnet Mortgage Services filed a motion for relief from the automatic stay in Mrs. Brown’s bankruptcy matter.

(10) Mr. Brown contacted respondent to seek her assistance in responding to the motion filed by Comnet, which was to be heard by the bankruptcy court on Feb-ruaiy 13, 1997.

(11) Respondent agreed to contact counsel for Com-net.

(12) On February 12,1997, respondent had a telephone conversation with Attorney Michael S. Dinney, Comnet’s counsel.

(13) Respondent represented to Mr. Dinney that she had been retained to represent Mrs. Brown, the debtor, as well as Mrs. Brown’s husband, the co-borrower, and that she needed additional time to prepare for the hearing.

(14) This was a misrepresentation, as Mrs. Brown had not retained respondent to represent her in her bankruptcy matter.

(15) Respondent had several telephone conversations with Mr. Dinney on February 12, 1997, and an agreement settling the motion was reached.

(16) The settlement negotiated by respondent and Mr. Dinney required Mr. and Mrs. Brown to sign a written agreement setting forth the terms of the settlement.

(17) Respondent did not have Mrs. Brown’s authority to settle the motion.

(18) Believing that an oral settlement agreement had been reached between all parties, Mr. Dinney cancelled the February 13, 1997 hearing relating to the motion.

(19) Under cover of a letter dated February 13, 1997, Mr. Dinney sent respondent a “Stipulation of settlement of motion for relief from the automatic stay” for respondent’s signature and that of her “clients,” with a request that the stipulation be returned to his office.

(20) Respondent received the letter of February 13, 1997.

(21) The stipulation stated that it pertained to a bankruptcy case involving a debtor named Suzanne Brown and that respondent represented Mr. and Mrs. Brown.

(22) Upon receipt and review of this letter and the stipulation, respondent failed to advise Mr. Dinney that she did not have the authority to settle the motion on Mrs. Brown’s behalf and that she did not represent Mrs. Brown.

(23) On April 8, 1997, Comnet filed a motion of Comnet Mortgage Services to enforce agreement to enter into stipulation and for sanctions.

(24) On April 7, 1997, Mr. Dinney mailed a copy of the motion to enforce to respondent by regular mail.

(25) Respondent received and reviewed the motion to enforce.

(26) Respondent realized that Mr. Dinney believed she represented Mrs. Brown; nevertheless, she took no immediate action to advise Mr. Dinney that she did not have authority to settle the motion on Mrs. Brown’s behalf and that she did not represent Mrs. Brown.

(27) On May 1,1997, Bankruptcy Judge Diane Weiss Sigmund held a hearing on Comnet’s motion to enforce.

(28) At no time prior to the date of the hearing did respondent contact Mr. Dinney to advise him that she did not have the authority to settle the motion on Mrs. Brown’s behalf and that she did not represent Mrs. Brown.

(29) On the morning of the hearing, respondent disclosed that she was acting as counsel for Mr. Brown, but not Mrs. Brown.

(30) Following the hearing, Judge Sigmund issued an order dated May 21, 1997, in which she found that respondent:

(a) led Mr. Dinney to reasonably believe that respondent represented both Mr. and Mrs. Brown;

(b) never informed Mr. Dinney during their telephone conversations that she did not represent Mrs. Brown;

(c) did not take any action prior to the hearing to contact and advise Mr. Dinney that she did not represent Mrs. Brown;

(d) did not testify credibly at the May 1,1997 hearing in relation to when she discovered that Mr. Dinney “mistakenly believed” that she represented Mrs. Brown; and

(e) had engaged in deceptive conduct.

(31) Judge Sigmund sanctioned respondent by requiring her to pay counsel fees and expenses to Comnet after noting that she had the inherent power to impose sanctions because respondent’s conduct threatened the orderly administration of justice.

(32) Respondent’s testimony at the disciplinary hearing regarding the circumstances surrounding her involvement in Mrs. Brown’s bankruptcy case and her failure to inform Mr. Dinney that she was not counsel for Mrs. Brown was not credible.

Charge II — Robert Hammernik Bankruptcy

(33) Respondent represented Robert Hammernik in a Bankruptcy Court case that was filed in July 1999 and was dismissed later that month because the necessary paperwork had not been filed.

(34) Mr. Hammernik spoke to respondent in September 1999 regarding a divorce case that respondent was handling on his behalf.

(35) During that September 1999 conversation, respondent did not request Mr. Hammemik’s permission to file another bankruptcy petition.

(36) Mr. Hammernik did not authorize respondent to file another bankruptcy petition on his behalf.

(37) After September 1999, Mr. Hammernik did not receive from respondent any correspondence, telephone calls, or pages on his pager.

(38) On March 9, 2000, respondent, acting without Mr. Hammemik’s authority, filed a bankruptcy petition on behalf of Mr. Hammernik, along with an “Application to pay filing fees in installments.”

(39) Without Mr. Hammemik’s authorization or consent, respondent signed Mr. Hammernik’s name on the bankruptcy petition and “Application to pay filing fees in installments.”

(40) Respondent failed to advise Mr. Hammernik that she had filed a Chapter 13 bankruptcy petition on his behalf.

(41) Mr. Hammernik retained Attorney Jeffrey Four-nier to represent him in filing for bankruptcy.

(42) On March 9, 2000, Mr. Fournier filed a Chapter 13 bankruptcy petition on behalf of Mr. Hammemik.

(43) On March 10, 2000, Judge Sigmund issued an order directing that a hearing be held on March 23,2000, and that respondent, Mr. Hammemik, and Mr. Fournier appear to explain why two bankruptcy petitions were filed on behalf of Mr. Hammemik on the same day, and which of the two cases should be dismissed.

(44) Mr. Hammemik learned that respondent filed a petition on his behalf from his counsel, Mr. Fournier.

(45) On March 31, 2000, Judge Sigmund issued an order finding that respondent had commenced a bankruptcy case without Mr. Hammernik’s authorization and dismissed the case.

(46) Respondent’s testimony at the disciplinary hearing regarding the circumstances of her decision to file a bankruptcy petition for Mr. Hammemik and her claim of having obtained his authorization to file and sign his same was not credible.

Charge TTT — J. Scott Kennedy Bankruptcy

(47) In September or October of 1999, respondent had a meeting at her office with Mrs. Frances Kennedy to discuss Mr. and Mrs. Kennedy’s retaining respondent for the purpose of filing for bankruptcy.

(48) During this meeting, respondent reviewed with Mrs. Kennedy her legal options and provided Mrs. Kennedy with a folder containing information about filing for bankruptcy.

(49) Shortly after this initial meeting, respondent and Mrs. Kennedy had a second meeting, at which time Mrs. Kennedy signed a retainer agreement and paid respondent $100.

(50) At the conclusion of the second meeting, respondent informed Mrs. Kennedy that she would contact her after reviewing Mrs. Kennedy’s bills to inform her of what would transpire next.

(51) At this second meeting, no firm agreement had been reached concerning payment of respondent’s fee although respondent had been granted limited authority by Mrs. Kennedy to begin preparing for filing for bankruptcy.

(52) Although the mortgage on the marital residence was only in the name of Mrs. Kennedy’s husband, Mrs. Kennedy informed respondent that she and her husband would be jointly filing for bankruptcy because of Mrs. Kennedy’s credit card debt.

(53) During the two meetings between Mrs. Kennedy and respondent, respondent did not ask Mrs. Kennedy for permission to file and to sign a bankruptcy petition on behalf of her husband.

(54) In January 2000, Mrs. Kennedy received notice from the sheriff that the marital home was scheduled for a sheriff’s sale.

(55) Over the course of several weeks, Mrs. Kennedy left several messages for respondent informing her of the upcoming sheriff’s sale, expressing concern, and requesting that respondent contact her.

(56) Respondent eventually returned Mrs. Kennedy’s messages by leaving a message on Mrs. Kennedy’s answering machine stating that everything was fine.

(57) Respondent’s message did not inform Mr. or Mrs. Kennedy that respondent intended to file and sign a Chapter 13 bankruptcy petition on behalf of Mr. Kennedy.

(58) Following this message, Mr. and Mrs. Kennedy decided to retain Attorney Jeffrey C. McCollough to represent them in filing for bankruptcy.

(59) After retaining Mr. McCollough, Mrs. Kennedy left a message on respondent’s answering machine, advising respondent of her termination.

. (60) On February 4, 2000, Mr. McCollough filed a Chapter 13 bankruptcy petition on behalf of Mr. and Mrs. Kennedy.

(61) On February 10, 2000, respondent filed a Chapter 13 bankruptcy on behalf of Mr. Kennedy.

(62) Mr. Kennedy did not authorize respondent to file a bankruptcy petition on his behalf.

(63) Without Mr. Kennedy’s authorization or consent, respondent signed Mr. Kennedy’s name on the petition and “Application to pay filing fees in installments.”

(64) Respondent had never met or spoken with Mr. Kennedy prior to filing the Chapter 13 bankruptcy petition.

(65) Mrs. Kennedy did not authorize respondent to sign Mr. Kennedy’s name on a bankruptcy petition nor any other pleading.

(66) Respondent never informed either Mr. or Mrs. Kennedy that she had filed a Chapter 13 bankruptcy petition.

(67) Mr. and Mrs. Kennedy discovered that respondent had filed an unauthorized bankruptcy petition after receiving from the Bankruptcy Court a copy of the filing fee application that respondent had filed.

(68) By letter dated February 29, 2000, Mr. Kennedy advised Judge Sigmund that he did not authorize respondent to file a bankruptcy petition on his behalf, that he did not sign the “Application to pay filing fees in installments” and that the only bankruptcy case he authorized was the one filed by Attorney McCollough.

(69) By order dated March 10, 2000, Judge Sigmund directed that a hearing be held on March 23, 2000 and that respondent and Mr. and Mrs. Kennedy appear and explain why two bankruptcy cases were filed on behalf of Mr. Kennedy.

(70) Following the hearing, Judge Sigmund issued a March 31, 2000 order that dismissed the case that respondent had filed on behalf of Mr. Kennedy and determined that respondent had commenced the case without Mr. Kennedy’s authorization. Judge Sigmund concluded that respondent made misrepresentations in the “Application and order for extension of time to file bankruptcy schedules, statements, summary sheets and plan,” and directed respondent to disgorge the $100 fee she received from Mrs. Kennedy.

(71) Respondent’s testimony at the disciplinary hearing regarding the circumstances of her decision to file the petition on Mr. Kennedy’s behalf was not credible. Her claims that Mrs. Kennedy signed Mr. Kennedy’s name on the petition and that Mrs. Kennedy authorized her to file that bankruptcy petition was not credible.

Charge IV — Gregg S. Rosen Bankruptcy

(72) Sometime in February 1999, Gregg S. Rosen retained respondent to represent him in filing for bankruptcy.

(73) On February 11, 1999, respondent filed a Chapter 13 bankruptcy petition on behalf of Mr. Rosen.

(74) On March 4,1999, this bankruptcy case was dismissed.

(75) On May 13,1999, respondent filed a second Chapter 13 bankruptcy petition on behalf of Mr. Rosen.

(76) On June 16, 1999, this bankruptcy case was dismissed.

(77) On November 10, 1999, respondent filed a third Chapter 13 bankruptcy petition on behalf of Mr. Rosen, along with an “Application to pay filing fees in installments.”

(78) Respondent also filed in that action an “Application/order for fees” in which respondent stated that she had received from Mr. Rosen $600, of which $160 was applied towards the filing fee and the remaining $440 went towards her $1,200 retainer.

(79) Respondent made a misrepresentation in the “Application/order for fees” when she stated that she applied $160 towards the filing fee because respondent had not paid the $160 filing fee in full.

(80) By order dated November 17, 1999, Judge Sigmund approved payment of the balance of the filing fee in installments.

(81) Respondent failed to make the required installment payments, despite representing that Mr. Rosen had paid her sufficient funds to satisfy the entire $160 filing fee.

(82) On January 7,2000, Standard Federal Bank filed a motion for “Relief from automatic stay under section 362 pursuant to Bankruptcy Procedure Rule 2001.”

(83) In the motion for relief, Standard asserted that Mr. Rosen filed the aforementioned three bankruptcy cases and requested that when the current case was dismissed, Mr. Rosen be prohibited from filing another bankruptcy case.

(84) Respondent was served with a copy of the motion for relief.

(85) Respondent failed to advise Mr. Rosen of her receipt of the motion for relief.

(86) Respondent failed to file an answer to the motion for relief.

(87) By order dated February 7,2000, Judge Sigmund directed that if the bankruptcy case was dismissed, Mr. Rosen could not file for bankruptcy for 180 days from the date of dismissal.

(88) On February 10, 2000, while the case was still pending, respondent filed in the Bankruptcy Court a fourth bankruptcy petition on behalf of Mr. Rosen.

(89) Respondent did not have Mr. Rosen’s authority to file a fourth bankruptcy petition on his behalf.

(90) Respondent signed Mr. Rosen’s name on the bankruptcy petition without his authorization or consent.

(91) Respondent failed to advise Mr. Rosen that she had filed a fourth bankruptcy petition on his behalf.

(92) Respondent also filed an “Application to pay filing fees in installments.”

(93) On February 11,2000, Judge Sigmund issued an order allowing Mr. Rosen to pay the filing fees in installments.

(94) On February 17, 2000, Judge Sigmund entered an order dismissing the third bankruptcy case because the filing fee had not been paid in full within the required time period.

(95) Respondent failed to advise Mr. Rosen that the third bankruptcy case had been dismissed because of her failure to make the required installment payments.

(96) On or about February 17, 2000, Standard filed a motion to annul the automatic stay pursuant to 11 U.S.C. §362(d) in the fourth bankruptcy case.

(97) Respondent was served with a copy of the motion to annul.

(98) Respondent failed to advise Mr. Rosen that Standard had filed the motion to annul.

(99) On February 24,2000, Judge Sigmund issued an order in the third bankruptcy case directing that a hearing be held on March 9, 2000, at which respondent and Mr. Rosen were to appear to address the issue of respondent’s apparent violation of F.R.B.R 1006(b)(3), which prohibited respondent from accepting any payment towards her retainer from Mr. Rosen until respondent had paid the required filing fee for Mr. Rosen’s bankruptcy case.

(100) Mr. Rosen and respondent testified at the March 9, 2000 hearing.

(101) Following the hearing, Judge Sigmund issued an order dated March 15, 2000, directing respondent to disgorge all fees she received from Mr. Rosen, which amounted to $750.

(102) Respondent’s testimony at the disciplinary hearing wherein she claimed that she telephoned Mr. Rosen and received his authorization to file and sign his name to the fourth bankruptcy petition and that Mr. Rosen failed to pay her the entire filing fee for the third petition, resulting in dismissal of that case, was not credible.

(103) Respondent did not exhibit sincere remorse for her misconduct.

III. CONCLUSIONS OF LAW

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

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

(2) R.P.C. 1.2(a) — A lawyer shall abide by a client’s decision concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued.

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

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

(5) R.P.C. 1.5(a) — A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee.

(6) R.P.C. 3.3(a)(1) — A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

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

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

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with misconduct in four bankruptcy matters. Petitioner bears the burden of proving respondent’s misconduct by a preponderance of the evidence that is clear and convincing. Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441 (2000). The record is clear that petitioner met its burden and proved that respondent engaged in serious misconduct.

Respondent engaged in the serial filing of bankruptcy petitions and pleadings without authorizations from her purported clients. In the Kennedy case, she never met Mr. Kennedy, for whom she prepared a petition for bankruptcy, signed his name to the petition, and filed it with the bankruptcy court. In the Hammemik and Kennedy matters, she filed bankruptcy petitions at the same time that other petitions had been filed by rightful counsel, thus requiring the court to hold a hearing to determine which petition was proper. Twice the court sanctioned respondent after it found that she commenced filing bankruptcy proceedings without client authorization. Respondent failed to communicate her actions to these purported clients, and in the Rosen matter she filed concurrent petitions and did not apprise her client of that fact, taking it upon herself to sign her client’s name to the petition without his knowledge or consent. Respondent failed to make required payments of installment fees and collected a fee in violation of the bankruptcy procedures. In the Brown matter, respondent misrepresented to opposing counsel that she had permission to settle a matter for Mrs. Brown, when in fact she did not even represent Mrs. Brown.

At the disciplinary hearing, respondent appeared unaware of the serious implications of her actions, and her attempts to explain her actions resulted in her testimony being impeached. Respondent contradicted herself throughout her testimony. At certain points, respondent insisted she would never sign a client’s name to a bankruptcy petition, and when she was confronted with the fact that she had done so, she stated it was only in one matter. Subsequently, she was reminded that she had done so in more than one matter, that being the Hammemik, Kennedy and Rosen cases. Respondent stated she would not represent a husband and wife in a bankruptcy matter without meeting both spouses, yet she filed a bankruptcy petition on Mr. Kennedy’s behalf without ever having met him, and she proceeded to enter a settlement agreement for Mrs. Brown without having met her. In the Rosen matter, respondent stated that Mr. Rosen failed to pay respondent the entire filing fee for the bankruptcy petition. This was refuted by her sworn testimony at the March 9, 2000 Bankruptcy Court hearing, in which she admitted that she was responsible for satisfying the installment payment of the filing fee, and the “Application/order for fees” prepared by respondent in Mr. Rosen’s third bankruptcy petition, wherein respondent alleged she received from Mr. Rosen the $160 filing fee. In the Brown matter, respondent stated that since she was handling a bankruptcy matter on behalf of Mr. Brown, she would not have informed opposing counsel that she represented Mrs. Brown. This testimony is not credible and is refuted by Michael Dinney’s testimony, the letters, stipulation and motion to enforce she received from Mr. Dinney, which placed respondent on clear notice that the case was on behalf of Mrs. Brown, and by respondent’s own conduct. Respondent had no reasonable explanation for her actions.

The record demonstrates respondent ran a slipshod law practice where she did not keep track of information and did not know the status of her client files. Respondent does not appear to have carefully read any of the documents in question. Respondent’s description of her office practices contradicts the actual nature of her actions in these four matters. Respondent handled these matters in a very similar fashion, providing a clear snapshot of her dubious practice habits.

The Hearing Committee recommended that respondent be suspended for a period of six months followed by three years of probation. In light of the serious nature of respondent’s misconduct, as well as her demeanor before the Hearing Committee, the board recommends that respondent be suspended for a period of one year and one day. Respondent is currently unfit to practice law without a future show of fitness. The recommendation of probation is likewise inappropriate. Respondent has not shown recognition of the causes of her misconduct or a real commitment to improvement. Additionally, respondent engaged in a pattern of misrepresentations, which cannot be prevented by a practice monitor.

For the reasons as set forth above, the board recommends that respondent be suspended for a period of one year and one day.

V. RECOMMENDATION

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

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

Board Member Gephart dissented and would recommend disbarment.

Board Members Peck and Newman did not participate in the January 14, 2004 adjudication.

DISSENTING REPORT AND RECOMMENDATION

GEPHART, Member,

April 16, 2004 — A majority of the board has recommended to the Supreme Court that respondent be suspended for a period of one year and one day. I recommended that respondent be disbarred, and write this dissent to explain the reasons that I believe such a harsh sanction is appropriate in this case.

Respondent was admitted to practice in 1991 and maintains an office in Doylestown, where she apparently concentrates her practice in the area of bankruptcy. She has a history of discipline consisting of a private reprimand administered in February of2002. The misconduct leading to the reprimand involved two bankruptcy matters. In one, she made a misrepresentation to the bankruptcy judge, and in the other, she failed to appear at a bankruptcy hearing.

The current misconduct involves four charges, all of which include misrepresentations. In the first matter, respondent was retained to represent a husband in a bankruptcy matter. Although she was not retained by her client’s wife (nor had she ever met her), she represented to counsel for a creditor that she had been retained to represent both parties. Respondent engaged in settlement discussions, and failed to disclose her misrepresentations until the morning of the scheduled hearing before the bankruptcy judge. Following the hearing, the judge issued an order finding that respondent had engaged in deceptive conduct, and that she did not testify credibly at the hearing. The judge sanctioned her by requiring her to pay counsel fees and expenses to the creditor.

In a second matter, respondent failed to advise her client that a bankruptcy petition she had filed was dismissed for lack of proper paperwork. Without her client’s authorization, she filed a second petition, together with an “Application to pay filing fees in installments.” The judge found that respondent had commenced the bankruptcy case without her client’s authorization, and dismissed the case. At the disciplinary hearing, respondent testified that she had obtained authorization to file and sign her client’s name, and the committee found her testimony not credible.

In a third case, the bankruptcy judge found that respondent had filed a bankruptcy case without a client’s authorization, although she signed her client’s name to the petition and an “Application to pay filing fees in installments.” The bankruptcy judge again concluded that respondent made misrepresentations at the hearing, and directed her to disgorge her legal fee. At the disciplinary hearing, respondent testified that she had obtained authorization from her client to file and sign her name. She also stated that her client had signed her husband’s name on the petition. Again, her testimony was found to be not credible.

Under the final charge, respondent again filed a bankruptcy petition (in this case, four petitions) and accompanying application to pay filing fees in installments, and signed her client’s name. She failed to advise her client that three previous petitions she filed had been dismissed. Although her client had paid the filing fees, she misrepresented in the “Application/order for fees” that she had applied the money toward the filing fees. After the judge approved payment of the balance of the filing fees in installments, she failed to make the required installment payments. Following the hearing, the judge again ordered respondent to refund her fees to her client. At the disciplinary hearing, respondent’s testimony that she had received her client’s permission was again found to be not credible.

It is recognized that respondent’s conduct in the above four charges pre-dated her private reprimand which was received in February 2002. Had respondent testified truthfully at the disciplinary hearing, I would have agreed with the majority that a suspension of one year and a day was appropriate discipline. However, the fact that she continues to lack credibility, even while under oath, and exhibits no remorse for her conduct, shows that she still does not comprehend that she has done anything wrong.

Her propensity to be less than truthful in carrying out her professional duties propelled her into her current disciplinary dilemma. Instead of learning from her experiences, respondent compounded her problems by choosing to be less than forthcoming to the hearing committee. Her continuing lack of candor before the hearing committee indicates, in my opinion, a serious character flaw that cannot be corrected by a suspension.

Disbarment is the most severe sanction that may be imposed on an attorney. In this matter, I believe it is the most appropriate sanction, as respondent’s history of misrepresentations and deceitful conduct demonstrates her disrespect for her clients and the court system in general. Thus, I recommend that respondent be disbarred.

ORDER

And now, July 15, 2004, upon consideration of the report and recommendations of the Disciplinary Board and dissenting report and recommendation dated April 16, 2004, it is hereby ordered that Antoinette M. J. Bentivegna be and she is suspended from the bar of this Commonwealth for a period of two years, and she 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.