author: FRIEDMAN, J.,

text:
    F. J. Busse Company Inc. v. Zipporah
    C.P. of Allegheny County,
    no. GD 02-17528.

      D. Matthew Jameson III, for plaintiff.

      Kenneth D. Perkins, for defendant.
    July 7, 2004—
   FRIEDMAN, J.,

INTRODUCTION

Plaintiff appeals from our order dated March 3, 2004, whereby we referred the question of the amount of attorneys fees back to the arbitrators, having first concluded that such fees were mandatory under section 512(b) of the Contractor and Subcontractor Payment Act, 73 P.S. §501 et seq. We based our ruling on the case of Bridges PBT v. Chatta, 821 A.2d 590 (Pa. Super. 2003), which explained the interplay of mandatory counsel fees under section 512(b) with the common-law arbitration statute. Because the decision was one about which reasonable minds might differ, we certified the order for immediate appeal.

DISCUSSION

Section 512(b) of the Contractor and Subcontractor Payment Act provides as follows:

“(b) Award of attorney fee and expenses. — Notwithstanding any agreement to the contrary, the substantially prevailing party in any proceeding to recover any payment under this Act shall be awarded a reasonable attorney fee in an amount to be determined by the court or arbitrator, together with expenses.” (emphasis added)

In the Bridges case, the Superior Court discussed the interplay of section 512(b) with the common-law arbitration statute, 42 Pa.C.S. §7341. Although the Superior Court stated that the arbitration statute was not in irreconcilable conflict with the Contractor Act, it then went on to consider the underlying merits of the award and applied section 512(b) of the Contractor Act to the specific facts of the Bridges case to see whether they constituted an “irregularity” under section 7341 which would warrant reversing the decision of the arbitrator.

Although the Superior Court held that it was proper in that case for the arbitrator not to have awarded attorney fees to the plaintiff, it based its decision on the phrase “substantially prevailing party” in section 512(b) of the Contractor Act.

The Superior Court concluded that the trial court must have found that the plaintiff was not a “substantially prevailing party.” The Superior Court based its conclusion on the fact that the plaintiff in Bridges had initially sought $75,329 plus interest, penalties, attorney fees and expenses. However, the arbitrator awarded plaintiff $35,117, which was effectively reduced to $25,117 based upon the $10,000 in remedial work which plaintiff agreed to perform for defendants. By comparing the $75,329 demand with the $25,117 net award, the Superior Court concluded that plaintiff only received roughly 40 percent of what he originally sought. The Superior Court also noted that the arbitrator specifically directed each party to bear its own attorney fees. By taking these two factors together, the Superior Court concluded that “it is apparent to us, as it was to the trial court, that the arbitrator found that [plaintiff] was not the substantially prevailing party. . . . Therefore, [plaintiff] was not entitled to an award of attorney fees and expenses under section 512 of the Contractor Act.” 821 A.2d at 593. (citation omitted)

In the case at hand, the plaintiff sought to recover approximately $83,000, and was awarded $75,000 by the arbitration panel. This is more than 90 percent of its demand. Based upon the language of section 512(b) and the Superior Court’s decision in Bridges, we ordered that plaintiff be awarded reasonable attorney fees and that the matter be referred back to the arbitrators to determine the amount of those fees. The Contractor Act provides that the substantially prevailing party shall — not may — be awarded a reasonable attorney fee. As we noted in our order, plaintiff is clearly the “substantially prevailing party,” having been awarded 90 percent of its claim. It is true that the arbitrators here stated in their award that “while the arbitrators did not condone the amount of money withheld by [defendant], they did not find that [defendant’s] action rose to the level that would warrant the imposition of counsel fees and expenses.” We properly concluded that the mandatory language of the statute and the holding in Bridges deprived the arbitrators of this discretion in awarding attorney fees.

In its statement of matters complained of on appeal, defendant argues, inter alia, that “Bridges upholds longstanding Pennsylvania precedent supporting the finality of arbitration awards, notwithstanding the dicta of Bridges which apparently confuses and makes inroads into such precedent.” (Statement of matters, ¶1.) While this is indeed the apparent effect of Bridges, it is its holding that does so. It is not dictum. Rather the Bridges court considered the merits of the arbitration award to see whether the failure to award attorneys fees was merely a permissible mistake of law or an impermissible “irregularity.” This court is bound by the Bridges holding. The case is on all fours with the instant one: if the Bridges plaintiff had received 90 percent of its arbitration demand, as occurred here, the result would necessarily have been what occurred here. To the extent Bridges is good law, the instant decision was correct since it defers to Bridges.

Defendant also asserts on appeal that we improperly concluded that plaintiff was the substantially prevailing party, and states as its reasons that

“(a) the court held no hearing and was therefore incompetent to make such a legal or factual finding; and (b) the applicable statute sets forth no standards, definitions or tests from which any conclusion regarding ‘substantially prevailing party’ can be made. Arguably, the only party competent to make such a determination is the fact-finder, in this case, the arbitration panel, albeit without any guidance from the statute.” (Statement of matters, ¶2.)

We are not persuaded by defendant’s arguments on this point. As a matter of law, a party which has been awarded 90 percent of its demand cannot be anything other than a “substantially prevailing party.” Furthermore, the language of section 512(b) is mandatory: a substantially prevailing party shall be awarded a reasonable attorney fee. It is not clear to this court what other matters could or should be introduced at the hearing defendant proposes. For us to have done anything other than to refer the question of the amount of fees back to the arbitrator would have been to ignore the clear holding of Bridges. The order appealed from was appropriate under Bridges.


source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    A.L.M. v. Diocese of Allentown

      C.P. of Lehigh County,
    nos. 2004-C-78, 2004-C-79, 2004-C-80, 2004-C-81, 2004-C-591, 2004-C-592.

      Jay N. Abramowitch and Richard M. Serbia, for plaintiffs.

      Joseph F. Leeson, C. Clark Hodgson Jr., Timothy R. Coyne and Christine M. Dehevec, for defendants.
    McGINIJEY, BLACK AND JOHNSON, JJ.

    June 24, 2004
   BLACK, J.,

— These six cases all arise from claims of sexual abuse allegedly perpetrated on the plaintiffs by clergy assigned to the Diocese of Allentown. Before the court are identical motions for judgment on the pleadings filed by the defendants in each of these cases.

For the reasons stated below, the motions are granted in part and denied in part. The motions are granted as to Count I in each case, this count being based on a claim of statutory violation/negligence per se. However, the motions are denied as to all remaining counts.

BACKGROUND

Seven plaintiffs have filed six lawsuits against the defendants asserting 15 counts: (1) statutory violation/ negligence per se; (2) common-law duty of reasonable care; (3) breach of fiduciary duty; (4) failure to provide a safe and secure environment; (5) negligent supervision; (6) persons acting in concert; (7) supplying false information/negligent misrepresentation; (8) failure to protect against foreseeable risks; (9) duty to warn of unreasonable risk of harm; (10) negligent supervision or use of improper persons as agents; (11) use of incompetent persons; (12) fraudulent concealment; (13) intentional failure to supervise; (14) intentional failure to warn; and (15) punitive damages.

The defendants have filed answers to the complaints raising the statute of limitations as a defense under new matter. The plaintiffs have filed replies to the defendants’ new matter, and the defendants have moved for judgment on the pleadings. The defendants’ motions are now before the court for disposition.

In considering the defendants’ motions, we must accept as true the allegations in the plaintiffs’ complaints and in their replies to new matter. These allegations are summarized as follows:

The plaintiffs each suffered sexual abuse at the hands of clergy while they were parishioners within the Diocese of Allentown. Each incident of alleged abuse occurred when the plaintiffs were minors. The incidents occurred between 1965 and 1982. The pertinent facts are outlined in the table below:

The plaintiffs have not brought suit against the individual priests who allegedly committed the acts of abuse, and the plaintiffs acknowledge that any suits against the individual priests would be barred by the statute of limitations. Instead, the plaintiffs initiated these actions against the Diocese of Allentown and the bishops who served the Diocese during and after the incidents of abuse.

Defendant Bishop Thomas J. Welsh served as the bishop for the Diocese of Allentown from March 21, 1983 to December 16, 1997, and defendant Bishop Edward P. Cullen has been the bishop from February 9, 1998 to the present. The bishops function as leaders of the Diocese.

The plaintiffs contend that the defendants were aware of sexual abuse of children by clergy within the Diocese of Allentown, and had specific knowledge of the pedophilic tendencies of the offenders in the present cases. According to the plaintiffs, despite this knowledge, the Diocese continued to allow the offending priests to have unsupervised contact with children, including the plaintiffs, and then sought to conceal the problem.

A.L.M. makes the following specific allegations in her complaint:

“(33) Diocesan defendants knew of the sexual abuse of children by numerous Diocesan priests, including but not limited to Monsignor Rigney, and that such abusive behavior was a long standing [sic] problem with the Diocese, having received actual notice of such abuse as more fully described herein....
“(43) On discovery of an offending cleric’s misconduct, Diocesan defendants systematically concealed said knowledge, failed to report the misconduct to authorities and prevailed upon others not to report said misconduct to law enforcement officials, despite the fact that the Diocese had a legal obligation to report knowledge of cases of molestation to proper authorities. ...
“(58) For decades and continuing through the present, Diocesan defendants, including the predator priests, have engaged in a covert policy and practice to conceal the problem of sexual abuse of children by parish clergy....
“(62) Information as to the known criminal conduct of Diocese priests was kept secret and confidential in secret archives within the exclusive control of Bishops Cullen, Welsh and/or McShea, thereby preventing the plaintiff from having any knowledge that the Diocesan defendants had prior notice of the abusive propensities of many Diocesan priests, including the predator priests.
“(69) Prior to the aforesaid disclosures, the plaintiffs [sic] did not know, nor did she have reason to know, that she had a cause of action against the Diocesan defendants for causing tortious injury to her due to Diocesan defendants’ concealment of their knowledge of Monsignor Rigney’s actions toward other minor parishioners and their vehement public denials of any truth to the allegations contained in related matters that the Diocese had a plan and/or policy to ignore complaints made against its abusive priests, including the predator priests, and to conceal such criminal conduct....
“(71) The injuries that plaintiff sustained as a result of the actions of Diocesan defendants could not have been discovered by her earlier due to Diocesan defendants’ fraudulent concealment of their active involvement in protecting priests known to them to be child molesters.”

Similar allegations are made in the other cases except that the name of the alleged “predator priest” is different in each case.

In 2002, representatives of the Catholic Church disclosed prior incidents of sexual misconduct against minors. These disclosures included statements made by Bishop Wilton B. Gregory, president of the United States Conference of Catholic Bishops, on June 13, 2002, and by the Diocese of Allentown on April 12,2002 and May 22, 2002. According to the plaintiffs, prior to these disclosures, the problem of ongoing sexual abuse within the Diocese of Allentown was concealed by the defendants. The plaintiffs also contend they have suffered a new harm from the 2002 disclosures.

As a result of the foregoing, the plaintiffs allege that the defendants are legally responsible for the abuse they suffered. The plaintiffs assert that they were unable to discover that the defendants were a cause of the abuse before the church’s disclosures in 2002.

DISCUSSION

A motion for judgment on the pleadings is governed by Pennsylvania Rule of Civil Procedure 1034, which provides:

“(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.
“(b) The court shall enter such judgment or order as shall be proper on the pleadings.”

The case law is clear that before a court may grant a motion for judgment on the pleadings, the moving party must meet a high burden. In assessing such a motion, “[t]he court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. Further, the court may grant judgment on the pleadings only where the moving party’s right to succeed is certain and the case is so free from doubt that trial would clearly be a fruitless exercise.” Conrad v. Bundy, 777 A.2d 108, 110 (Pa. Super. 2001) (emphasis added), citing Pro Golf Manufacturing Inc. v. Tribune Review Newspaper Co., 761 A.2d 553, 554 (Pa. Super. 2000).

I. Count I: Statutory Violation/Negligence Per Se

In Count I the plaintiffs assert a claim of statutory violation/negligence per se against the defendants. In this count the plaintiffs allege that the defendants violated a statutory duty to report child abuse pursuant to the Pennsylvania Child Protective Services Law (PCPSL), 23 Pa.C.S. §6311 etseq.

The PCPSL was enacted on December 19, 1990, and amended to its present form on December 16,1994. The PCPSL requires that certain enumerated persons report reasonable suspicions of child abuse to the appropriate county agency. The 1994 amendment added members of the clergy to the category of individuals who are required to report suspected abuse. Prior to the 1994 amendment, clergy were not legally mandated to report suspicions of abuse.

The allegations of sexual abuse asserted by each of the plaintiffs occurred well before the 1994 amendment. The most recent allegation of abuse occurred in 1982. Thus, at the time of the alleged abusive behavior, the PCPSL did not apply to the defendants.

There is a presumption that the 1994 amendment to the PCPSL does not apply retroactively. “No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. §1926. The Pennsylvania Supreme Court in Commonwealth v. Scoleri, 399 Pa. 110, 132-33, 160 A.2d 215, 226-27 (1960), held that “[wjhenever a section or part of a law is amended, the amendment shall be construed as merging into the original law, become a part thereof, and replace the part amended and the remainder of the original law and the amendment shall be read together and viewed as one law passed at one time; but the portions of the law which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.” (emphasis in original)

There is no indication in the 1994 amendment to the PCPSL that the General Assembly intended it to be applied retroactively. Therefore, in accordance with Scoleri, the amendment does not apply to the cases before us. At the time of the events at issue, members of the clergy were not responsible under the PCPSL to report suspicions of child abuse.

Accordingly, Count I of the plaintiffs’ complaints asserting statutory violation/negligence per se is dismissed.

II. All Other Counts — The Statute of Limitations

The defendants argue that the remaining counts in the plaintiffs’ complaints are barred by the two-year statute of limitations for personal injury claims. The Judicial Code provides:

“The following actions and proceedings must be commenced within two years: ...
“(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter.” 42 Pa.C.S. §5524(7).

The statute of limitations begins to run on the date the plaintiff’s cause of action accrues, i.e., the date the events have occurred that entitle the plaintiff to bring suit. For a personal injury claim, this is generally the date of the plaintiff’s injury. Stroback v. Camaioni, 449 Pa. Super. 395, 404, 674 A.2d 257, 262 (1996). Since the incidents of abuse occurred in the 1970s and 1980s, the two-year statute of limitations expired long before the filing of the plaintiffs’ complaints, unless the limitations period was tolled or extended under one of the theories discussed below.

A. Minority Tolling

The plaintiffs were all minors at the time of the incidents, ranging in age from six to 16. On May 30, 1984, the General Assembly enacted a minority tolling provision, which was amended to its present form on June 28, 2002. See 42 Pa.C.S. §5533(b). This provision delays or tolls the statute of limitations for minors until they reach the age of majority. Before this amendment, the limitations period for a cause of action on behalf of a minor was the same as for an adult.

The minority tolling provision is not applicable to the present cases for two reasons. First, each cause of action accrued prior to the enactment of the statute, and the statute is not retroactive. Dalrymple v. Brown, 549 Pa. 217, 221, 701 A.2d 164, 166 (1997); Redenz by Redenz v. Rosenberg, 360 Pa. Super. 430, 520 A.2d 883 (1987). Second, all the plaintiffs reached the age of majority more than two years before they filed the cases now before us. Therefore, the age of the plaintiffs did not toll the statute of limitations.

B. The Discovery Rule

The plaintiffs contend that the statute of limitations was tolled under the theory of delayed discovery. The discovery rule is an exception to the general rule that the statute of limitations begins to run as soon as the cause of action accrues. The discovery rule “arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause”; it does not arise “upon a retrospective view of whether the facts were actually ascertained within the period.” Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 85, 86, 468 A.2d 468, 471, 472 (1983). (emphasis in original)

This rule has been applied by our appellate courts to extend the statute of limitations in a variety of cases. See e.g., Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 153 A.2d 477 (1959) (injuries to plaintiff’s property from subsurface conditions); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) (surgical sponges left in patient’s body); Giffear v. Johns-Manville Corp., 429 Pa. Super. 327, 632 A.2d 880 (1993) (asbestosis discovered long after exposure to asbestos).

Under the discovery rule, the statute of limitations begins to run from the time the plaintiff knew or, in the exercise of reasonable diligence, should have known of both his injury and the cause of the injury. Bohus v. Beloff, 950 F.2d 919, 926 (3d Cir. 1991); Pocono International Raceway Inc., supra. Reasonable diligence, for purposes of the discovery rule, is defined as “a reasonable effort to discover the cause of an injury under the facts and circumstances present in the case.” Cochran v. GAF Corp., 542 Pa. 210, 217, 666 A.2d 245, 249 (1995). Application of this rule is not always a question of law for the court.

“Where the issue involves a factual determination regarding what constitutes a reasonable time for the plaintiff to discover his injury and its cause, the issue is usually far the jury." Id. at 215, 666 A.2d at 248. (emphasis added)

In the cases at issue, the plaintiffs claim that they did not know or have reason to know that the defendants were a cause of their injuries until long after the abuse occurred. The plaintiffs acknowledge that they knew of their injuries at the time of the abuse and that they knew the identities of the individual clerics who abused them. However, they allege that the Diocese and the bishops were a separate cause of their harm, and that they did not know or have reason to know of this cause until 2002, when representatives of the Catholic Church disclosed the church’s role in concealing incidents of sexual misconduct by priests against minors. These disclosures were made by Bishop Wilton B. Gregory, president of the United States Conference of Catholic Bishops on June 13, 2002, and by the Diocese of Allentown on April 12, 2002, and May 22, 2002. The plaintiffs allege that before these disclosures the problem of ongoing sexual abuse within the Diocese of Allentown was concealed by the defendants. Therefore, under the discovery rule, the plaintiffs contend that the statute of limitations did not begin to run until 2002, within two years prior to the filing of these actions.

Based on the allegations in the plaintiffs’ pleadings, which we must accept as true at this stage, there remains a factual issue as to when the plaintiffs knew or should have known that the defendants were a cause of their harm. From the pleadings alone we cannot decide this issue. Although the plaintiffs knew of their injuries and of the priests who abused them many years ago, if the plaintiffs’ allegations are correct, a question remains as to when the plaintiffs knew or had reason to know that the defendants were also a cause of their harm.

The plaintiffs’ claims against the defendants are to be distinguished from claims based on the vicarious liability of an employer. Under Pennsylvania law, “[i]t is well settled that an employer is held vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment.” R.A. v. First Church of Christ, 748 A.2d 692, 699 (Pa. Super. 2000).

The defendants argue that the plaintiffs must have known that they could have sued them at the time of the initial abuse, since the priests were in the employ of the Diocese. However, the plaintiffs had no recourse against the Diocese or the bishops under a theory of vicarious liability. The Pennsylvania Superior Court held in R.A., supra, that a church is not vicariously liable for the conduct of its minister where the minister sexually abused a minor living in his neighborhood. The court reasoned that where an employee acts in an outrageous manner, which is unrelated to the performance of his job, the actions are outside the scope of employment and the employer is not vicariously responsible.

The facts alleged in the present cases are very similar to the scenario in R.A. The acts of sexual abuse committed by the offending priests were, if true, clearly outrageous and outside the scope of their priestly duties. Thus, the plaintiffs could not have pursued claims against the defendants at the time of the abuse based upon vicarious liability.

The defendants rely on the case of Dalrymple v. Brown, supra. In Dalrymple, the plaintiff sued on the basis of a childhood sexual assault that had occurred 23 years earlier. The plaintiff argued that the statute of limitations was tolled because she had repressed her memories of the sexual assault. The court held that repressed memory does not toll the statue of limitations under the discovery rule.

In the cases now before the court, there are no assertions of repressed memory. Therefore, the holding in Dalrymple is inapplicable. For the same reason, the other cases relied upon by the defendants are distinguishable. See Hartz v. Diocese of Greensburg, no. 03-2536 (3d Cir. March 26, 2004) (victim given alcohol by offender to diminish capacity, resulting in repressed shame and unawareness of psychological injuries for 22 years); Getchey v. County of Northumberland, no. 4:CV-03-0826 (M.D. Pa. February 26, 2004) (repressed memories of sexual assault for more than 47 years); Baily v. Lewis, 763 F. Supp. 802 (E.D. Pa. 1991) (repressed memory of sexual abuse for more than 15 years); and E.J.M. v. Archdiocese of Philadelphia, 424 Pa. Super. 449, 622 A.2d 1388 (1993) (victim unaware of “psychological and emotional injuries” suffered from sexual abuse for seven years).

Under the discovery rule, the statute of limitations was tolled until the plaintiffs knew or, in the exercise of reasonable diligence, should have known that the defendants were a cause of their harm. Based on the allegations in the complaints, this did not occur until 2002, when disclosures by church officials alerted the plaintiffs to a conspiracy within the church to conceal sexual abuse against minors.

C. Fraudulent Concealment

The plaintiffs also allege that the statute of limitations was tolled by fraudulent concealment on the part of the defendants. The plaintiffs claim that the defendants actively concealed sexual misconduct by priests against minors, and that, as a result of this concealment, the plaintiffs did not become aware of their cause of action against the defendants until 2002.

Fraudulent concealment can also be a basis for tolling the statute of limitations. Krevitz v. City of Philadelphia, 167 Pa. Commw. 412, 420, 648 A.2d 353, 357 (1994); Molineux v. Reed, 516 Pa. 398, 402, 532 A.2d 792, 794 (1987). However, the test is the same as the test under the discovery rule: when did the plaintiff know, or in the exercise of reasonable diligence when should he have known, of both the injury and its cause? Bohus v. Beloff, 950 F.2d 919, 925-26 (3d Cir. 1991). Since we have concluded at this pleading stage that a factual issue remains as to when the plaintiffs knew or, in the exercise of reasonable diligence, should have known that the defendants were a cause of their injuries, the plaintiffs should have an opportunity to show that the statute of limitations may also have been tolled by the defendants’ alleged fraudulent concealment.

This holding is consistent with the recent decision of the Westmoreland County Court of Common Pleas in Bonson v. Diocese of Altoona-Johnstown, no. 3104 of 2003 (Westmoreland Cty. February 2, 2004) (Caruso, J.). In Bonson, the court addressed the statute of limitations, as it relates to a fraudulent concealment claim, even though the issue was raised on preliminary objections. The court held that “[t]he resolution of when the plaintiff should have been aware of her claims and whether the defendants fraudulently withheld information from her cannot be resolved on the face of the complaint.”

Therefore, the court overruled the preliminary objections to the extent they were based upon the statute of limitations. We reach the same conclusion in the cases now before us.

D. The Claim of “New Harm”

Once the statute of limitations began to run on the plaintiffs’ initial injury, it also began to run on any later injuries from the same tortious conduct. Orozco v. Children’s Hospital of Philadelphia, 638 F. Supp. 280, 282 (E.D. Pa. 1986); Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 149, 471 A.2d 493, 507 (1984). The plaintiffs contend, however, that they suffered a new harm as a result of the 2002 disclosures, and therefore that they have a new cause of action beginning in 2002. The flaw in this argument is that the disclosures themselves were not tortious. Therefore, they cannot be the basis for a new cause of action. These disclosures establish the latest possible time for the commencement of the limitations period, since the plaintiffs certainly knew or should have known of the relevant facts by that time. The issue remains whether the plaintiffs knew or, in the exercise of reasonable diligence, should have known sooner of the defendants’ alleged earlier misconduct.

CONCLUSION

For these reasons, the motions for judgment on the pleadings are denied as to all but Count I of the complaints. We do not decide which, if any, of the remaining counts state a viable cause of action. This issue was not raised in the defendants’ motion. Nor does our decision preclude the defendants from raising the statute of limitations issue again on a motion for summary judgment after the completion of discovery. We conclude merely that, under the legal standard applicable to motions for judgment on the pleadings, requiring us to accept as true all properly pleaded averments of fact in the plaintiffs’ complaints and replies to new matter, the pleadings alone do not clearly establish that the plaintiffs knew or, in the exercise of reasonable diligence, should have known more than two years prior to the filing of their complaints that actions of the defendants were a cause of their alleged sexual abuse. Therefore, we cannot dismiss the complaints at this juncture on the basis of the statute of limitations.

ORDER

Now, June 24, 2004, upon consideration of defendants’ motions for judgment on the pleadings and plaintiffs’ responses, after review of the parties’ briefs and oral argument, for the reasons set forth in the accompanying opinion, it is ordered that said motions be and the same hereby are denied.

      . On March 10.2004, upon the defendants’ motion, the Honorable Alan M. Black entered an order consolidating the cases identified as docket nos. 2004-C-78, 2004-C-79, 2004-C-80, and 2004-C-81 for the sole purpose of determining the defendants’ motions for judgment on the pleadings. On April 1, 2004, the Honorable William H. Platt, president judge, appointed an en banc panel consisting of the Honorable Carol K. McGinley, the Honorable Alan M. Black and the Honorable J. Brian Johnson to hear and decide the motions for judgment on the pleadings. Since then, two additional cases, identified as docket nos. 2004-C-591 and 2004-C-592, have also been filed. Oral argument was heard by the en banc panel on all six cases on May 12,2004. Under the court’s random assignment procedure, three of the cases had been assigned to Judge Black, two to Judge Johnson, and one to Judge McGinley.

      . The fourth and fifth causes of action are not asserted by B.J.B. and R.D.K. in docket no. 2004-C-592. However, these plaintiffs have added counts for premises liability and negligent supervision and retention in their complaint.

      . Complaint A.L.M., ¶43; complaint Bortz, ¶44; complaint Beaumont, ¶49; complaint Doe, ¶50; complaint Doe 2, ¶49; complaint B J.B. and R.D.K., ¶43.

      . The Philadelphia County Court of Common Pleas in Aquilino v. The Philadelphia Catholic Archdiocese, no. 00327 (Philadelphia Cty. August 19,2003), granted the defendants’ motion for judgment on the pleadings. However, there was no opinion written by the court; so we do not know the basis for that court’s decision.

      . In a later order dated May 11, 2004, Judge Caruso reconsidered other preliminary objections and sustained demurrers in favor of two of the defendants on other grounds.


author: NEALON, J.,

text:
    Korczakowski v. Hwan

      C.P. of Lackawanna County,
    no. 01 CV 934.

      Ezra Wohlgelernter, for plaintiffs.

      Frank J. Brier, for defendant Hwan.

      Eugene D. Sperazza, for defendant Kondash.
    September 23, 2004
   NEALON, J.,

— Presently pending for consideration is a “motion to place under seal plaintiff’s petition for approval of settlement of wrongful death and survival action” in this medical malpractice litigation. Plaintiff commenced this malpractice action against his wife’s gynecologist, Jung Jang Hwan M.D., and family physician, Dennis J. Kondash D.O., and alleged that they failed to timely diagnose and treat his wife’s ovarian mass from March 1996 through April 1999. Plaintiff asserted that the undiagnosed ovarian mass continued to grow unabated during that three-year period until it eventually compressed his wife’s left iliac vein, thereby causing a blood clot to develop and become lodged in her lungs and resulting in her death from a pulmonary embolism.

Prior to trial, the plaintiff agreed to settle this wrongful death and survival action with all of the settlement proceeds to be paid by Dr. Hwan’s primary liability insurer, the Pennsylvania Medical Society Liability Insurance Company (PMSLIC), and his additional coverage provided by the Medical Care Availability and Reduction of Error (MCARE) fund pursuant to section 712 of the MCARE Act, 40 PS. §1303.712. No payment will be made by Dr. Kondash or his insurer. Of the total settlement payment to be paid on behalf of Dr. Hwan, more than 70 percent of those funds will be paid by the MCARE fund.

As per the language of the parties’ settlement release, the plaintiff agreed to keep the details of the settlement confidential and to request that the court seal the terms of the settlement on September 9, 2004. For that reason, when the plaintiff filed his petition for approval of the settlement, he contemporaneously presented a motion to place the settlement under seal. A telephone conference was conducted with counsel for the parties on September 20,2004, at which time the court expressed reservations about sealing from public disclosure any settlement paid by the MCARE fund with funds derived from cigarette taxes. Dr. Hwan’s counsel submits that confidentiality of the settlement is necessary to protect Dr. Hwan’s privacy interests and that sealing will encourage health care defendants to settle malpractice cases in the future with the assurance of confidentiality.

Pennsylvania jurisprudence has long recognized that the public has a right of access to judicial records based upon the First Amendment to the United States Constitution, see Zdrok v. Zdrok, 829 A.2d 697, 699-700 (Pa. Super. 2003), the common-law right to access doctrine, see Cendant Corp. v. Forbes, 260 F.3d 183, 192 (3d Cir. 2001), and the Pennsylvania Right to Know Act, 65 PS. §§66.1-66.4. See The Morning Call Inc. v. Lower Saucon Township, 156 Pa. Commw. 397, 403-404, 627 A.2d 297, 300-301 (1993); Davis v. Newton Township, 101 Lacka. Jur. 42, 45 (1999). The right of access to judicial records in civil cases “promotes public confidence in the judicial system” and “helps assure that judges perform their duties in an honest and informed manner.” Cendant Corp., supra (quoting Leucadia Inc. v. Applied Extrusion Tech Inc., 998 F.2d 157, 161 (3d Cir. 1993)). Whether a document is subject to public access depends upon whether the document has been filed with the court or otherwise incorporated into a court’s adjudicatory proceeding. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 780-83 (3d Cir. 1994); Davis, 101 Lacka. Jur. at 47. If a document is filed of record with the court (such as the plaintiff’s settlement petition has been in the case sub judice), it is deemed to be a judicial record, Cendant Corp., supra, and is subject to disclosure under the right of access doctrine without the necessity of demonstrating that it is a “public record” under the Right to Know Act. Pansy, 23 F.3d at 781-82; Davis, supra.

To override the common-law right of access, the party seeking to seal a judicial record must demonstrate “good cause” justifying confidentiality, Zdrok, 829 A.2d at 700, and “bears the burden of showing that the material is the kind of information that courts will protect” and that “disclosure will work a clearly defined and serious injury to the party seeking closure.” Cendant Corp., 260 F.3d at 194 (quoting Miller v. Indiana Hospital, 16 F.3d 549, 551 (3d Cir. 1994)). When determining whether the interest in secrecy outweighs the presumption of access, the court must balance the harm to the party seeking protection and the importance of disclosure to the public. Pansy, 23 F.3d at 787; Davis, 101 Lacka. Jur. at 46. Privacy interests may warrant sealing of a judicial record only to the extent necessary “to prevent the infliction of unnecessary or serious pain on parties who the court reasonably finds are entitled to such protection.” Pansy, supra; Haber v. Evans, 268 F. Supp.2d 507, 511 (E.D. Pa. 2003).

In delineating the serious “injury to be prevented, specificity is essential.” Cendant Corp., 260 F.3d at 194. If the chief concern of the party seeking confidentiality is embarrassment from public disclosure, the applicant “must demonstrate that the embarrassment will be particularly serious.” Pansy, 23 F.3d at 787 (quoting Cipollone v. Liggett Group Inc., 785 F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S. 976 (1987)). Moreover, although the general interest in encouraging settlements based upon a particularized need for confidentiality is a factor to be considered, it is outweighed by the public’s right of access if the settlement agreement involves “information important to public health and safety” or “matters of legitimate public concern.” Pansy, 23 F.3d at 788; Davis, 101 Lacka. Jur. at 46-47.

Medical negligence claims, the malpractice insurance premiums being charged to physicians and hospitals, and their potential effect on access to health care in Pennsylvania have been topics of considerable public debate in recent years and have resulted in executive, legislative and judicial action. Part of this debate has focused greater public attention on patient safety and the quality of medical care, as evidenced by the creation of the Patient Safety Authority to collect and analyze data on medical errors in Pennsylvania and to issue recommendations to medical facilities concerning health care practices and procedures in an effort to reduce the number and severity of serious events and incidents. See 40 P.S. §§1303.303-1303.304. Malpractice claims that are settled by a physician for sums exceeding the primary insurer’s policy limits may be deemed relevant by a patient in deciding whether to seek or continue treatment with that physician. Therefore, the details of a malpractice settlement against a health care provider may be regarded as “information important to public health and safety” or “matters of legitimate public concern.”

Furthermore, where it is likely that the information sought to be sealed is accessible under the Right to Know Act, a strong presumption exists against granting an order of confidentiality. Pansy, 23 F.3d at 791; Haber, 268 F. Supp.2d at 511; Davis, 101 Lacka. Jur. at 47. One of the stated purposes of the Right to Know Act is to make agencies of the Commonwealth accountable for their use of public funds. Scranton Times v. Scranton Parking Authority, 54 D.&C.4th 90, 101 (Lacka. Cty. 2001). Section 1 (2) of the Act defines an “agency” as “[a]ny office, department, board or commission of the executive branch of the Commonwealth,... or any state or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function.” 65 P.S. §66.1. The MCARE fund “is the successor in interest to the Medical Professional Liability Catastrophe Loss fund (CAT fund)” which has been described by the appellate courts as an agency of the Commonwealth. See Pennsylvania Medical Society Liability Insurance Co. v. Commonwealth, Medical Professional Liability Catastrophe Loss Fund, 577 Pa. 87, 842 A.2d 379, 380 (2004) (referring to the CAT fund as “an executive agency of the Commonwealth that, from 1976 through March of 2002, implemented the portions of the Health Care Services Malpractice Act, embodying Pennsylvania’s statutory framework governing professional liability insurance for hospitals and physicians.”) (footnote omitted); Dellenbaugh v. Commonwealth, Medical Professional Liability Catastrophe Loss Fund, 562 Pa. 558, 559-60, 756 A.2d 1172, 1173 (2000) (identifying the CAT fund as “an agency of the Commonwealth which is responsible for providing statutory excess liability coverage in a medical malpractice action____”); Lewinski v. Commonwealth, Medical Professional Liability Catastrophe Loss Fund, 852 A.2d 1270, 1271 n.2 (Pa. Commw. 2004) (noting that “the Commonwealth Court has exclusive jurisdiction to hear cases involving the CAT fund, an agency of the Commonwealth.”). Cf. Mulligan v. Piczon, 739 A.2d 605, 608 n.5 (Pa. Commw. 1999) (stating that “[t]he CAT fund is not a typical government agency.”), aff’d, 566 Pa. 214, 779 A.2d 1143 (2001). On at least one occasion where the Commonwealth Court considered a Right to Know Act challenge involving the CAT fund, the court treated the fund as an “agency” subject to the Act. See Legal Capital LLC v. Medical Professional Liability Catastrophe Loss Fund, 702 A.2d 869 (Pa. Commw. 1997) (settlement records pertaining to malpractice claims made against the CAT fund are public records under the Right to Know Act unless they are shielded from disclosure by former 40 RS. § 1301.702(c) (repealed)), aff’d, 557 Pa. 10,731 A.2d 132 (1999). With the adoption of the MCARE Act in 2002, the MCARE fund replaced the CAT fund and is administered by the Pennsylvania Insurance Department, see 40 P.S. §§1303.702, 1303.712, 1303.713(a), which is another “department... of the executive branch of the Commonwealth” under 65 P.S. §66.1.

Prior to 2003, malpractice payments disbursed by the CAT fund or MCARE fund were subsidized by surcharges or assessments paid by health care providers in this Commonwealth and did not involve the expenditure of public funds. See 40 P.S. § 1303.712(d); 40 P.S. §1301.701(e) (repealed). Act 44 of December 23,2003, P.L. 237, established the Health Care Provider Retention Program to “provide assistance in the form of assessment abatements to health care providers for calendar years 2003 and 2004.” 62 P.S. §1302-A. Under this program, which will expire on December 31, 2005, see 62 F.S. §1310-A, a medical specialist such as Dr. Hwan qualifies for an abatement of the specialist’s annual MCARE assessment. See 62 P.S. §1304-A(b) (1). As a result of Act 46 of December 23, 2003, P.L. 250, the Health Care Provider Retention Account is subsidized by 18.52 percent of the total excise taxes assessed upon the sale or possession of cigarettes within the Commonwealth pursuant to 72 P.S. §8206. See 72 P.S. §8211. Under the abatement program, the proceeds of the Health Care Provider Retention Account are used to pay the MCARE fund assessment for qualifying specialists like Dr. Hwan. See 62 RS. §443.7. Additionally, effective January 1, 2004, any surcharges levied and collected under 75 Pa.C.S. §6506(a) for certain Motor Vehicle Code violations must be deposited in the MCARE fund and “used to reduce surcharges and assessments” under section 712(e) of the MCARE Act. See 40 P.S. § 1303.712 (m). By virtue of these legislative enactments, more than 70 percent of the settlement proceeds that will be paid to the plaintiff in this case will be funded by cigarette taxes which are paid by members of the public and/or surcharges paid by convicted motorists.

Under section 1 of the Right to Know Act, a “public record” is defined as including any document “dealing with the receipt or disbursement of funds by an agency. . . .” See 65 P.S. §66.1. This “category of documents should be broadly construed and need only constitute records evidencing disbursement of government money.” Associated Builders & Contractors Inc. v. Pennsylvania Department of General Services, 747 A.2d 962, 965 (Pa. Commw. 2000). As the Supreme Court of Pennsylvania has observed, the “liberal definition” of a public record in 65 P.S. §66.1 “applies to a wide range of documents that contain information relating to disbursement of public funds . . . .” Tribune-Review Publishing Co. v. Westmoreland County Housing Authority, 574 Pa. 661, 668, 833 A.2d 112, 116 (2003). Since the MCARE funds which will be used to pay the majority of the plaintiff’s settlement with Dr. Hwan are derived from public taxes or surcharges, any documents relating to the disbursement of those settlement proceeds are clearly public records under the Right to Know Act. Cf. Davis, 101 Lacka. Jur. at 48.

The litigants simply have not demonstrated the requisite “good cause” to justify the sealing of this settlement involving public funds. See Zdrok, 829 A.2d at 701. The plaintiff’s malpractice allegations regarding Dr. Hwan are already matters of public record and Dr. Hwan has not established clearly defined, serious harm that he will suffer from disclosure of the settlement. See Tribune-Review Publishing Co. v. Westmoreland County Housing Authority, 795 A.2d 1094, 1099 (Pa. Commw. 2002) (concluding that disclosure of the settlement agreement would not harm anyone’s reputation or privacy interests since the plaintiff’s “allegations against the [defendant] are already a matter of public record through the filing of the complaint”), aff’d, 574 Pa. 661, 833 A.2d 112 (2003). Nor have the parties shown that health care defendants will likely forego settlements of malpractice cases in the future unless their confidentiality is guaranteed. See Pansy, 23 F.3d at 788 n.20 (“The incentives for settling, such as saving time and expense and avoiding the publicity of a trial, are still valid whether or not the parties are allowed to seal the case files.”). Even if such a risk were truly found to exist, it would not override the public’s right of access to documents or information relating to the expenditure of public funds. See Tribune-Review Publishing Co., 574 Pa. at 673, 833 A.2d at 119 (stating that although courts have “essentially acknowledged the possibility that disclosure might chill future attempts to resolve disputes, they generally concluded that this risk must yield to the public’s right to know.”); Pansy, 23 F.3d at 792 (“Neither the interests of parties in settling cases, nor the interests of the ... court in cleaning their dockets, can be said to outweigh the important values manifested by freedom of information laws.”).

Plaintiff has fulfilled his obligation under the parties’ settlement release by filing the instant motion seeking to place this settlement under seal. In light of the fact that more than two-thirds of the settlement proceeds in this case will be paid by cigarette taxes and other public funds under the Health Care Provider Retention Program, the plaintiff’s petition for approval of settlement is a “public record” under the Right to Know Act and is subject to public disclosure as a judicial record under the right to access doctrine. Accordingly, the “motion to place under seal plaintiff’s petition for approval of settlement of wrongful death and survival action” will be denied.

ORDER

And now, September 23,2004, upon consideration of the “motion to place under seal plaintiff’s petition for approval of settlement of wrongful death and survival action,” and the arguments presented by counsel for the parties on September 20, 2004, and based upon the reasoning set forth above, it is hereby ordered and decreed that the “motion to place under seal plaintiff’s petition for approval of settlement of wrongful death and survival action” is denied.

      . Information submitted by the physician in the written application for abatement is deemed not to be a public record under the Right to Know Act, 62 RS. §1308-A.

      . We would note that even “if parties cannot demonstrate good cause for a court order of confidentiality over the terms of settlement, they have the option of agreeing privately to keep information concerning settlement confidential, and may enforce such an agreement in a separate contract action.” Pansy, 23 F.3d at 788.


author: BRATTON, J.,

text:
    Shenandoah Mobile Company v. Dauphin County Board of Assessment Appeals

      C.P. of Dauphin County,
    no. 2003 CV 3196 TX.

      Carl Risch, for appellants.

      Carl G. Wass, for appellee.
    May 24, 2004
   BRATTON, J.,

— Appellants have appealed the decision of the Dauphin County Board of Assessment Appeals which upheld the tax assessment with regard to a telecommunications tower located in Swatara Township, Dauphin County, Pennsylvania. Appellant Shenandoah Mobile Company is the owner of the monopole tower itself, and appellant Shenandoah Personal Communications Company is the owner of an antenna attached to the top of the tower and the other equipment located at the site. The matter came before this court for hearing on March 10,2004, at which many of the facts of this case were the subject of a stipulation and therefore very few facts are in dispute.

Both the telecommunications tower and the related equipment (the tower) are located on land owned by James Pagliano III, and Sara Jane Pagliano at 4349 Chambers Hill Road in Swatara Township. The appellants leased approximately 1,600 square feet of land from the Paglianos on which was built a concrete pad, a monopole cell tower, an equipment shed or box, and a perimeter fence. On February 11, 2000, Swatara Township issued a building permit to the Paglianos for the construction of the tower on the Paglianos’ property on Chambers Hill Road.

Dauphin County had completed a countywide reassessment of all real property in 2000, but the tower was not deemed to be a proper subject of assessment for real estate tax purposes during the process of that county wide reassessment. But in March of 2001, the Dauphin County Tax Assessment Office decided to identify all cellular or wireless communication towers in Dauphin County and to assess the value of those towers and pads as improvements to real estate. The tax assessment office sent out “notices of change in assessment” to tower owners on December 19, 2002. The appellants received such a notice, which stated that the tower at 4394 Chambers Hill Road would be subject to real estate taxation. On the appellants’ appeal, the Dauphin County Board of Assessment Appeals found that the appellants’ tower and associated equipment were properly assessed as improvements to real estate, and thus denied the appeal. The two issues raised by this appeal are:

(1) Whether the assessment of the tower in question constitutes an unlawful “spot reassessment,” and

(2) If not, whether the tower is real estate subject to real estate taxation. We will deal with each of these issues in turn.

First, we note that boards of assessment appeals are prohibited from engaging in spot reassessment. According to 72 P.S. 5348.1,

“The board shall not engage in the practice of spot reassessment. In the event that the board does engage in the practice of spot reassessment, the property owner may appeal the assessment to the board or to the court as set forth in this Act. Upon a finding by the board or an adjudication by the court that the property owner has been subjected to a spot reassessment, the property owner shall be entitled to a refund of any taxes paid pursuant to a spot reassessment and interest thereon at the same rate and in the same manner as the Commonwealth is required to pay interest pursuant to section 806.1 of the Act of April 9,1929 (P.L. 343, no. 176), known as ‘The Fiscal Code.’ ”

The appellants have argued that the tax assessment office illegally spot reassessed the tower because the tower was in place during the 2001 countywide reassessment, but was not added to the tax rolls until December of 2002.

In support of their position, the appellants cite our Commonwealth Court’s holding in Radecke v. York County Board of Assessment Appeals, 798 A.2d 265 (Pa. Commw. 2002). In Radecke, the issue on appeal was whether the taxpayer’s property was impermissibly spot reassessed when the York County Assessment Office increased the assessment of the subject property by including the value of improvements — including an air conditioning system, concrete patio, an enclosed masonry porch, and a second full bath — which had been overlooked in the preceding countywide reassessment. The court said, “[wjith respect to property assessment principles, it is generally acknowledged that once an evaluation has been established for a taxable property, that valuation cannot be changed unless said change is the result of a county wide reassessment.” Id. at 267. (footnote omitted) The Radecke court agreed with the taxpayer and found that the board improperly approved an increased assessment on the taxpayer’s property, the essence of which was to bring the property in line with the fair market value of other properties in the neighborhood. Id. at 268.

However, the board has argued that in the instant case no change in assessment value has occurred; rather an entirely new assessment has occurred which is limited to the new tax parcel, i.e. the tower, owned by the appellants. Changes or additions in the assessed valuation of real property are not per se unlawful simply because they occur outside a countywide reassessment. In fact, section 13 of the Third Class County Assessment Law states,

“[T]he board is authorized to make additions and revisions to the assessment roll of persons and property subject to local taxation at any time in the year, so long as the notice provisions of subsection (b) of section 8 are complied with. All additions and revisions shall be a supplement to the assessment roll for levy and collection of taxes for the tax year for which the assessment roll was originally prepared, in addition to being added to the assessment roll for the following calendar or fiscal tax years.” 72 P.S. §5348(f).

Prior to December 19,2002, the tax assessment office and the board did not consider cellular towers and their related equipment to be property subject to taxation. But in response to an unreported Commonwealth Court decision in March of 2001, the assessment office deemed cellular towers and their concrete bases to be property subject to local taxation and, for the first time, added all such structures to the Dauphin County tax rolls for purposes of real estate taxation. The tower in question was not assessed as part of the underlying land; rather it was given its own new tax parcel number. We agree with the appellees that this was not a change in assessment, but rather a completely new taxable parcel added to the assessment roll. Therefore, we find that the assessment office properly added the cellular towers to the assessment rolls in accordance with 42 P.S. §5384(f) above, and their actions do not constitute a spot reassessment.

With regard to the appellants’ second issue, we find that the concrete pad, cell tower and accompanying improvements are real estate subject to local taxation. The appellants argue that because the tower is annexed to the property by nuts and bolts and can be removed, it is personalty rather than real estate. They also note that the site agreement entered into by the appellants and the Paglianos provides at paragraph 7, “[ujpon termination or expiration of this agreement, [appellant! may remove its equipment and improvements and will restore the site to substantially the condition existing on the commencement date, except for ordinary wear and tear and casualty loss.” The site agreement also provides that, although the original term is only for five years, the term will extend automatically for a total of four additional five-year terms, unless the appellant chooses to terminate the agreement. The agreement cannot be terminated by the underlying landowner. The Commonwealth Court of Pennsylvania has said that the permanence of a structure is not to be equated with perpetuity; rather the fact that the structure can be disassembled and moved does not mean that the intention was not to malee it permanent. In re Sheetz Inc., 657 A.2d 1011 (Pa. Commw. 1995). The court said, “[i]t is sufficient if the item is intended to remain where affixed until worn out, until the purpose to which the realty is devoted is accomplished or until the item is superseded by another item more suitable for the purpose.” Id. at 1014 (adopting the reasoning in Michigan National Bank v. City of Lansing, 96 Mich. App. 551, 554, 293 N.W.2d 626, 627 (1980)).

Title 72 P.S. §5020-201 of the General County Assessment Law enumerates those types of property that are subject to real estate assessment and taxation. The assessment office taxed the tower pursuant to the catch-all provision of this section, which states that “all other real estate not exempt by law from taxation” shall be valued and assessed under that section. In 1931, the Supreme Court of Pennsylvania established a test, which remains the law today, to determine whether an object constitutes “real estate” under the General County Assessment Law:

“Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty. . . . Second, those which are so annexed to the property that they cannot be removed without material injury to the real estate or to themselves; these are realty, even in the face of an expressed intention that they should be considered personalty — to them the ancient maxim ‘Quicquidplantatur solo, solo credit’ [whatever is affixed to the soil belongs to the soil] applies in full force____Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending upon the intention of the parties at the time of the annexation; in this class fall such chattels as boilers and machinery affixed for the use of an owner or tenant but readily removable.” Clayton v. Lienhard, 312 Pa. 433, 436-37, 167 A. 321, 322 (1933). (citations omitted) (emphasis added)

In the instant case, the appellants argue that the tower falls within the third class above since the pole is attached by nuts and bolts and is removable without injuring the tower itself or the property to which it is annexed, and that it remains personalty since, based on the site agreement, the intent of the parties was that the tower would remain a chattel belonging to the appellants. We disagree.

We find that the tower falls within the second class above since, while the pole itself may be removable without injury, the massive concrete base, which is buried in the ground and anchors and supports the pole, cannot be removed without injury to the real estate. The tower is thus realty, regardless of the expressed “intention” that it be considered personalty, and will be removed at the end of the term of the site agreement, which is controlled entirely by the appellant and is likely to run a total of 25 years. The tower was therefore properly added to the Dauphin County assessment rolls and made the subject of real estate taxation. We therefore enter the following:

ORDER

And now, May 24, 2004, upon consideration of the appellants’ appeal and after the hearing held on March 10, 2004, the appeal of Shenandoah Mobile Company and Shenandoah Personal Communications Company is hereby dismissed and appellants’ request that the assessment of its telecommunications tower, bearing tax parcel no. 63-027-029-0010001, be overturned is hereby denied.

      . In fact, the appellants’ predecessor in interest, Sprint, had entered into a “site agreement.” Shenandoah acquired the tower as part of its acquisition of the assets of Sprint, which included the leasehold rights under the site agreement.

      . The amount of the assessment, $117,300 for improvements only, is not contested.

      . Spot reassessment is defined by statute as “the reassessment of a property or properties that is not conducted as part of a countywide revised reassessment and which creates, sustains or increases disproportionately among properties’ assessed values.” 72 P.S. §5342.1.

      . The assessment office gave the tower its own tax parcel number, 63-027-029-0010001. The underlying land, owned by the Paglianos, has assigned to it tax parcel number 63-027-029.


author: RUDNITSKY, Member,

text:
    Office of Disciplinary Counsel v. Atlas

      Disciplinary Board Docket no. 171 D.B. 2001.
    March 24, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

RUDNITSKY, 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 December 21, 2001, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against respondent, Joan Gaughan Atlas. The petition contained three charges alleging that respondent committed professional misconduct by converting and commingling fiduciary funds, making misrepresentations, and engaging in a series of false certifications on her Pennsylvania Attorney Annual Fee forms. Respondent filed an answer to petition for discipline on February 11, 2002.

Disciplinary hearings were held on July 16, 2002 and October 7, 2002, before Hearing Committee 1.20 comprised of Chair Leigh Michael Skipper, Esquire, Member Kelley A. Grady, Esquire, and Alternate Member Harold Mark Goldner, Esquire. Respondent was represented by Stuart L. Haimowitz, Esquire.

Following briefing by the parties, the Hearing Committee filed a report on July 16, 2003, recommending that respondent be suspended for a period of three years.

Petitioner filed a brief on exceptions on July 31,2003. No exceptions were filed by respondent.

This matter was adjudicated by the Disciplinary Board at the meeting of November 19, 2003.

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, PA 17101, is invested, pursuant to the Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

(2) Respondent was born in 1952 and was admitted to practice law in the Commonwealth of Pennsylvania in 1981. She maintains an office at 1500 Walnut Street, Suite 1500, Philadelphia, PA 19102. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent has no prior history of discipline.

Charge I — The Beum Matter

(4) On June 25,1990, Donna Beum was injured at the Bel air Shopping Center in Philadelphia.

(5) Ms. Beum and her husband retained Michael S. Durst, Esquire, to represent them in a premises liability action arising from Ms. Beum’s injuries.

(6) Ms. Beum signed a contingency fee agreement providing that Mozenter, Mozenter & Durst would reserve 40 percent of any verdict or settlement after reimbursement of costs.

(7) On July 22, 1991, the Beums filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Middle District of Louisiana; the petition listed the third-party claim as an asset of the bankruptcy estate.

(8) On June 18,1992, Mr. Durst filed a civil action on the Beums’ behalf.

(9) On December 29,1993, one of the defendants filed a suggestion of bankruptcy, and the Beum action was stayed.

(10) On November 25, 1994, Nicholas M. Fausto, Esquire, filed his entry of appearance on behalf of the Beums and Mr. Durst withdrew his appearance.

(11) Mr. Fausto subsequently referred the Beum case to respondent.

(12) On January 19, 1995, respondent entered into an employment agreement with Ostroff & Kline P.C.

(13) On May 15,1995, respondent entered the appearance of Jonathan Ostroff as counsel for Ms. Beum.

(14) During respondent’s employment with the Ostroff firm, respondent used the support services of the firm and $2,051.96 in firm funds in connection with the Beum action.

(15) On August 18, 1995, respondent left the employ of the Ostroff firm.

(16) After leaving the firm, respondent continued to represent Ms. Beum. A dispute arose between respondent and the Ostroff firm over the firm’s entitlement to a portion of the fee and reimbursement of its costs.

(17) Respondent and the Ostroff firm submitted the dispute to binding arbitration, as required by respondent’s employment agreement.

(18) By letter dated July 7, 1995, Samera L. Abide, Esquire, the trustee in the Beum’s bankruptcy, informed respondent that:

“(a) Ms. Beum’s civil cause of action was property of the bankruptcy estate;
“(b) In order for respondent to continue as counsel in the civil action, it would be necessary for Ms. Abide to seek approval of respondent’s employment from the bankruptcy court;
“(c) Once approved, the bankruptcy estate, represented by Ms. Abide, would be respondent’s client, not the debtors;
“(d) All offers of settlement would have to be communicated to Ms. Abide for evaluation and would be subject to bankruptcy court approval; and
“(e) Payment of attorney’s fees and reimbursement of costs would require bankruptcy court approval.”

(19) By letter dated July 26, 1995, respondent provided to Ms. Abide a history of the Beum action and its current status.

(20) On November 7, 1995, Ms. Abide filed with the bankruptcy court an application to employ respondent as special counsel.

(21) At or about that time, respondent commenced employment with Albert L. Deutsch Associates in Philadelphia.

(22) By letter dated November 3, 1995, respondent notified Ms. Abide of respondent’s new mailing address and informed Ms. Abide that the Beum action had been discussed by counsel and a settlement master on October 31, 1995.

(23) By order dated November 14 and filed November 15,1995, the bankruptcy court approved Ms. Abide’s application to have respondent appointed as special counsel to the bankruptcy estate.

(24) Prior to the scheduled arbitration between respondent and the Ostroff firm, respondent and the firm reached an agreement dated May 30, 1996, wherein respondent agreed that, with respect to the Beum action, she would pay to the Ostroff firm one-third of the net fees received by respondent.

(25) By letter dated August 19, 1996, respondent requested that Ms. Abide send all future correspondence to respondent’s home address and notified her that the defendant in the Beum action had offered $425,000 in settlement of Ms. Beum’s claims and that there was a workers’ compensation lien in the amount of $182,078.34 as of August 1,1996.

(26) On August 30, 1996, Ms. Abide filed a motion for authority to compromise and settle litigation and to pay workers’ compensation lien, therein notifying the bankruptcy court that the defendant had tendered a check in the amount of $425,000, which was “in hand” and requesting that the bankruptcy court approve a settlement in that amount.

(27) On August 30, 1996, Ms. Abide also filed a fee application requesting that the bankruptcy court approve respondent’s fee as special counsel to the trustee in the amount of $170,000 and reimbursement of expenses in the amount of $8,250.68 for a total disbursement of $178,250.68.

(28) Attached to the fee application was an itemized expense statement, which included some expenses that had been advanced by the Ostroff firm, such as travel to New Orleans to take depositions.

(29) By orders docketed October 1, 1996, the bankruptcy court approved both applications.

(30) By letter of October 9, 1996, to respondent and Ms. Abide, Thomas DeLorenzo, Esquire, counsel for defendant Belair, informed respondent that he wanted to order the settlement draft from the carrier and wanted to know to whom the check should be made payable.

(31) After receiving responses from respondent and Ms. Abide, Mr. DeLorenzo, on December 10,1996, forwarded to Ms. Abide a settlement check in the amount of $425,000.

(32) On December 18,1996, Ms. Abide deposited the settlement check.

(33) On January 6,1997, Ms. Abide issued to respondent two checks. Check no. 101 was made payable to respondent in the amount of $178,250.68 and check no. 102 was made payable to respondent in trust for the State Workers’ Coinsurance Fund in the amount of $184,426.79.

(34) On January 8, 1997, respondent deposited check no. 102 into her PNC Bank escrow account. She deposited check no. 101 into the Mellon PSFS Bank account, in the name of Joan M. Atlas, which respondent identified on the back of the check as an “atty. acct.”

(35) Check no. 101 comprised fiduciary funds in that Attorneys Nicholas Fausto and Jonathan Ostroff had an interest in the funds.

(36) Respondent failed to deposit that portion of the funds belonging to the Ostroff firm into a trust account.

(37) Respondent failed to promptly notify the Ostroff firm of her receipt of the funds.

(38) On January 13,1997, respondent wrote check no. 1017 on her account at Mellon in the amount of $94,499.35 and payable to “Joan Atlas escrow account.” She deposited this check into the PNC escrow account.

(39) On January 17,1997, respondent wrote check no. 1004 on the PNC escrow account in the amount of $56,666.67 payable to Nicholas Fausto in payment of Mr. Fausto’s referral fee in the Beum matter.

(40) As of January 17,1997, respondent was entrusted with approximately $35,500 belonging to the Ostroff firm.

(41) From March 3, 1997 until the time of the disciplinary hearing, respondent failed to hold approximately $35,500 in trust for the benefit of the Ostroff firm.

(42) When a dispute arose over compliance with the terms set forth in the settlement agreement, the Ostroff firm reinitiated the binding arbitration process.

(43) By award of the arbitrator dated August 7,1997, it was determined that in the Beum action, the fees generated were to be calculated and distributed in the relevant following order of priority, that being Nicholas Fausto, then the Ostroff firm, then respondent.

(44) By letter dated May 28, 1998 to Mr. Ostroff, respondent misled Mr. Ostroff into believing that she had not yet received any distribution from the bankruptcy court.

(45) In the letter of May 28,1998, respondent misrepresented to Mr. Ostroff that the final approval of all distributions and fees would be completed by October 1998.

(46) At all relevant times, Mr. Ostroff or his successor firm had a legally cognizable interest in the fee portion of the Beum settlement funds based upon the employment agreement, the May 30,1996 settlement agreement, the award of the arbitrators, and respondent’s contractual obligation as set forth in her letter of May 28, 1998 to Mr. Ostroff.

Charge II — Mishandling of Fiduciary Funds

(47) From at least September 10, 1996 to April 13, 1998, respondent maintained an account at PNC Bank captioned “Joan M. Gaughan Atlas escrow account.”

(48) From at least September 7,1996 to July 7, 2000, respondent maintained an account at Mellon PSFS Bank captioned “Joan M. Atlas.” This account was a non-fiduciary account.

(49) Respondent made disbursements from her PNC escrow account in payment of her personal expenses, debts and obligations.

(50) Respondent wrote checks on her PNC escrow account payable to cash without identifying the basis for the disbursement.

(51) On or about April 17,1997, respondent endorsed a check from the City of Philadelphia payable to Robert and Constance McKenna and Ostroff & Kline P.C., in the amount of $9,333 and deposited the check into the PNC escrow account.

(52) On or about December 19,1997, respondent commingled personal and fiduciary funds in the PNC escrow account by depositing personal funds into that account.

(53) Respondent commingled personal and fiduciary funds in her non-fiduciary account at Mellon.

(54) On September 18,1996, respondent deposited into her Mellon account a check payable to Albert L. Deutsch Associates in the amount of $1,050 and bearing the notation “legal retainer.”

(55) On October 19, 1996, respondent wrote a check on her non-fiduciary account at Mellon, payable to Jerome and Gloria White in the amount of $5,000 and bearing the notation “White v. City settlement proceeds.”

(56) On January 22, 1997, respondent wrote a check on her non-fiduciary account at Mellon, payable to John Della Polla, in the amount of $1,666.66 in connection with the Stephens case.

(57) On January 24, 1997, respondent wrote a check on the Mellon account payable to William Brennan in the amount of $888.88 in payment of the balance of the Scrullio referral fee.

(58) On March 27, 1998, respondent deposited into her non-fiduciary account at Mellon a cashier’s check payable to Regina Coyne in the amount of $16,040; and a cashier’s check in the amount of $21,550 payable to Regina Coyne.

(59) Respondent failed to hold entrusted funds belonging to Ms. Coyne separate from respondent’s personal funds.

(60) On March 30,1998, respondent wrote a check on her non-fiduciary account at Mellon payable to Elizabeth Bosley in the amount of $12,974.60 and bearing the notation “A Baines case proceeds.”

(61) On May 6, 1998, respondent wrote two checks on her non-fiduciary account at Mellon. One was payable to Louis Mercer in the amount of $2,498.57 and bearing the notation “Proceeds of settlement — final.” The second check was payable to “Bureau of accounts — CCP Phila. Family Div.” in the amount of $8,000 and bearing the notation “Louis Mercer case distribution.”

(62) On December 1,1998, respondent deposited into her non-fiduciary account at Mellon MetLife a check payable to Frank Giunta and Attorney Joan G. Atlas in the amount of $7,500 and bearing the notation “Settlement.”

(63) On January 23, 1999, respondent wrote a check on her non-fiduciary account at Mellon payable to Bernadette Wilkinson in the amount of $4,778.36 and bearing the notation “Wilkinson v. DePace case proceeds.”

(64) Respondent maintained funds of clients in connection with their representation in her Mellon account and allowed the account balance to fall below that of the entrusted funds.

(65) From December 2, 1996 through December 8, 1997, respondent was entrusted with $3,012.10 in connection with her representation of clients in the Mulero/ Feliciano matter. During that time period, the balance in respondent’s account fell below $3,012 on 58 occasions.

(66) From December Í, 1998 through May 10, 2000, respondent was entrusted with $4,000 belonging to her client Frank Giunta. During that period, the balance in the account fell below $4,000 on 133 dates.

(67) During the period from March 1997 until the present, respondent did not maintain complete and accurate records of her transactions involving fiduciary funds.

(68) Respondent did not maintain in trust sufficient funds to cover all of her obligations to Jonathan Ostroff and the Ostroff firm or its successors.

(69) Respondent utilized fiduciary funds for her own benefit.

(70) Respondent’s explanation for why she did not hold client funds in trust was that she was not paying attention and was engaged in “emergency living.” (N.T. 419.) She also made reference to sloppy bookkeeping. (N.T. 418.)

(71) Respondent accepted employment with the Ostroff firm because she needed the income and health insurance. (N.T. 375.)

(72) When respondent informed Mr. Ostroff that she was leaving the firm and he raised her obligations under the employment agreement, respondent told Mr. Ostroff, “I really think it’s onerous that you want 60 percent of the cases that I brought with me as well as the ones that I generated while I was here.” (N.T. 383.)

(73) Respondent’s explanation for failing to tell Mr. Ostroff that she had received the fees in the Beum case was because she was in deep debt and about to lose her house. (N.T. 391.)

(74) Respondent promptly paid Nicholas Fausto his referral fee in the Beum case because “there was no question in her mind that he was entitled to a full fee” and “in terms of friends, family, social connections, et cetera, Nick [Fausto] was very involved in [her] life on a day-to-day basis ...(N.T. 396.)

(75) Respondent further explained her decision not to pay Mr. Ostroff at the time she received the Beum fee:

“Where John was concerned, it seemed to me that I... well, first of all, he didn’t do anything in the case himself. He entered his appearance because he insisted on doing so, which he was entitled as my employer to do, but he didn’t do any actual work. It seemed to me that John, you know, wanted a big portion of the fee without regard to work performed or his involvement in the case. And, you know maybe he was entitled to it. I just know at the time that — and this is before I was in treatment and before I was looking at things, I was angry with the guy. I just felt that he had overreached. I felt that, you know, he like became the focus of that anger.” (N.T. 446-47.)

(76) Respondent has not paid Mr. Ostroff any of the funds owed to him.

(77) On January 21, 1999, Donald F. Manchel and Marvin Lundy, respondent’s former employers, filed a complaint in civil action against respondent in the Court of Common Pleas of Philadelphia County alleging that respondent had defaulted under the terms of a withdrawal and termination agreement. The complaint sought judgment in the amount of $319,481.80.

(78) In her answer and new matter to the complaint, respondent asserted that she had filed a Chapter 7 bankruptcy petition which discharged any and all debt owed to the plaintiffs and asserted that she had paid in excess of $200,000 to plaintiffs since the inception of the withdrawal and termination agreement. Respondent believes that she may owe Mr. Manchel and Mr. Lundy an additional $50,000.

(79) Respondent executed an assignment with Mr. Ostroff on August 6,1999, by which she transferred “all rights, interest and privileges, which [respondent] has in the fees of the [six] cases” identified therein “until [Mr. Ostroff] receives payment of $33,466.”

(80) In the assignment, respondent further agreed that “if the assigned fees from the [six] cases ... do not result in a full payment of the $33,466” she would “assign [her] entitlement to [her] fees in as many additional cases as necessary until such time as [Mr. Ostroff] receives the $33,466 payment.”

(81) Of the six cases that were the subject of the assignment, respondent testified that one had been withdrawn, two had been tried and lost, one was scheduled for trial in November 2002, one she could not remember, and the last had been settled but she did not think she received any funds in the case. (N.T. 454-62.)

Charge III — False Certifications on Annual Fee Forms

(82) On respondent’s 1997-1998 Pa. Attorney’s Annual Fee form dated June 9, 1997, and filed by the Administrative Office of the Disciplinary Board on August 7, 1997, respondent represented that between May 1, 1996 and May 1997, she or her law firm held funds of a client or third person subject to R.P.C. 1.15 in one account, that being at Regent National Bank.

(83) Respondent further represented that she was familiar and in compliance with R.P.C. 1.15 regarding the handling of funds of clients and others, and certified that the information provided was true.

(84) Respondent’s representations and certification were not true, as she held funds subject to R.RC. 1.15 in other bank accounts.

(85) Respondent made similar false certifications on her Pa. Attorney Annual Fee forms for the years 1998-1999, 1999-2000, and 2000-2001.

Braun Testimony

(86) Respondent presented the expert testimony of Dr. Richard Limoges. Respondent has treated with Dr. Limoges for alcoholism and depression since June 2000.

(87) Dr. Limoges opined that respondent’s misconduct was causally related to her alcoholism and depression. (N.T. 291.)

(88) Dr. Limoges’ knowledge of respondent’s misconduct was incomplete.

(89) Dr. Limoges was not aware that as late as February 2002, respondent was refusing to admit that she failed to deposit the funds belonging to the Ostroff firm into a trust account, she failed to promptly notify the Ostroff firm of her receipt of the Beum funds, and that her letter of May 28, 1998, to Mr. Ostroff was deceptive.

III. CONCLUSIONS OF LAW

By her actions as set forth above, respondent violated the following Rules of Professional Conduct and Rule of Disciplinary Enforcement:

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

(2) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive, and upon request by the client or third person, shall promptly render a full accounting regarding such property.

(3) R.P.C. 1.15(c) — When in the course of a representation a lawyer is in possession of property in which both the lawyer and another person claim interest, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

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

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

(6) PaJR.D.E. 203(b)(3) — Willful violation of any other provision of the Rules of Disciplinary Enforcement shall be a ground for discipline, via Pa.R.D.E. 219(d)(l)(iii), which provides that all persons who are required to pay an annual fee shall file a signed statement with the Administrative Office of Pennsylvania Courts listing the name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds of a client or third person subject to Rule 1.15 of the Pennsylvania Rules of Professional Conduct, and the name and account number for each account in which the lawyer holds such funds.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with violating Rules of Professional Conduct 1.15(a), 1.15(b), 1.15(c), 8.4(b), 8.4(c) and Pa.R.D.E. 203(b)(3). The petition contains three charges alleging that beginning in March 1997 and continuing over 44 months, respondent committed serious professional misconduct by converting and commingling fiduciary funds, misrepresenting her receipt of fiduciary funds, and engaging in a series of false certifications on her attorney annual fee forms.

Petitioner has the burden of proving, by a preponderance of the evidence, that respondent’s actions constitute professional misconduct. This burden must be established by clear and satisfactory evidence. Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441 (2000). The record demonstrates that petitioner met this burden of proof.

Respondent entered into joint stipulations of law and fact wherein she admitted that she engaged in professional misconduct constituting misappropriation of approximately $35,000 in fiduciary funds, misrepresentation to third parties and repeated mishandling of fiduciary funds belonging to clients. She further made a series of false certifications on four of her annual attorney fee forms as to her compliance with R.P.C. 1.15. In the stipulations, respondent admitted to violating all of the rules charged in the petition for discipline with the exception of R.P.C. 8.4(b).

There is no question that respondent has engaged in serious professional misconduct. By knowingly and intentionally misappropriating $35,000 in fiduciary funds belonging to Attorney Ostroff, respondent has violated R.P.C. 8.4(b), which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Respondent’s actions constitute the criminal act of theft.

Respondent contends that due to her alcoholism and depression she is entitled to mitigation pursuant to Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989). In order for a psychiatric infirmity to be considered in mitigation in a disciplinary proceeding, respondent must establish by clear and convincing evidence that the disorder was a causal factor in producing the misconduct. Braun, 520 Pa. at 160, 553 A.2d at 895.

Respondent presented the testimony of her treating psychiatrist, Dr. Richard Limoges. Respondent has been under the care of Dr. Limoges for more than two years. Her initial diagnosis was a chemical dependency on addiction, along with a long-standing depression. Respondent’s treatment has consisted of a course of psychotherapy and involvement with Alcoholics Anonymous. From all accounts her progress in AA has been extremely satisfactory. She is also involved in Lawyers Concerned for Lawyers and is highly thought of in that organization and has shown progress in her sobriety.

Dr. Limoges found that respondent’s misconduct was causally related to her alcoholism and depression. However, Dr. Limoges’ testimony revealed an incomplete understanding of respondent’s misconduct. He was not provided with respondent’s answer to petition for discipline and consequently did not know that as of February 2002, respondent was refusing to admit that she failed to deposit funds belonging to the Ostroff firm into a trust account, she did not promptly notify the Ostroff firm of her receipt of the Beum funds, and that her May 28,1998 letter to Jonathan Ostroff was not truthful.

Case law that has developed since Braun is clear that respondent’s expert must do more than state an opinion that a causal connection exists between the misconduct and the psychiatric condition. In re Anonymous No. 66 D.B. 96, no. 384 disciplinary docket no. 3 (Pa. Feb. 10, 1998). When analyzing expert testimony in a Braun matter it is appropriate to consider whether the expert is fully aware of the extent of respondent’s misconduct and has analyzed the psychiatric condition in light of that particular misconduct. The board finds that Dr. Limoges was not aware of the full extent of respondent’s misconduct, and his incomplete awareness of aspects of the misconduct weakens his testimony regarding a causal connection between respondent’s alcoholism and depression and her misappropriation of funds.

The board concludes that, although respondent proved that she has a psychiatric condition, she did not meet her burden of proving that such condition substantially caused her misconduct.

Respondent’s own testimony is forthcoming on the subject of her misconduct. She testified that she promptly paid referring Attorney Nicholas Fausto his share of the Beum funds because there was no question in her mind that he was entitled to a full fee and, furthermore, that Nicholas Fausto was a friend. As far as Jonathan Ostroff was concerned, respondent made clear her feelings that since she believed he had not done anything substantial in the Beum case, he was not entitled to a large portion of the fee. Respondent felt that he was overreaching. Respondent admitted her anger towards Mr. Ostroff, which anger caused her to fail to make any restitution. This anger, more than any psychiatric condition, explains respondent’s misconduct. Respondent appears to have selectively chosen not to fulfill or perhaps even recognize her obligation to the Ostroff firm.

Respondent’s multiple violations of her professional duties warrant public discipline. Although there is no per se measure of discipline, the mishandling of funds is determinatively held to be a serious offense. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). Here the most egregious breach of trust was directed not at clients but at respondent’s former law firm. While this fact spares harm to the public, the mishandling of non-client funds remains a serious offense.

The Hearing Committee recommended a three-year period of suspension. The committee did not recommend probation, although respondent urged consideration of probation as part of the sanction. Petitioner argued for disbarment. After review of the record, including the Hearing Committee’s thorough report, the board is persuaded that a three-year suspension without probation is appropriate. Generally, attorneys who receive probation have established that their misconduct was caused by a psychiatric disorder, pursuant to Braun. Respondent failed to establish such a connection. Furthermore, respondent has made no restitution of funds as of this date, so should not be rewarded with a speedier return to practice than is warranted by her behavior. The only mitigating factors of record are her lack of a prior record of discipline and her serious efforts at achieving and maintaining sobriety. The board is convinced that three years will suffice to instill in respondent a more complete understanding of her wrongdoing and a renewed awareness of her professional responsibilities.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Joan Gaughan Atlas, be suspended from the practice of law for a period of three years.

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

Board Member Newman dissented and would recommend a five-year suspension.

ORDER

And now, June 29, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated March 24, 2004, it is hereby ordered that Joan Gaughan Atlas be and she is suspended from the practice of law in the Commonwealth of Pennsylvania for a period of three 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.