author: LASH, J.,

text:
    Moore v. Berks County Board of Assessment Appeals

      C.P. of Berks County,
    no. 04-2884.

      Cheryl J. Allerton and Barbara Jean Kern, for appellants.

      John E. Muir, for appellee.
    May 5, 2005
   LASH, J.,

The appellants, Michael H. Moore and Andrea Wardenski Moore, have filed an appeal from the decision of the Berks County Board of Assessment Appeals, directing a rollback from the preferential use assessment to full market value assessment of three parcels of Moores’ real estate, pursuant to Pennsylvania Farmland and Forest Land Assessment Act of 1974 (Act 319), commonly known as the Clean and Green Act, 72 P.S. §5490.1, et seq. Pursuant to 72 P.S. §5350(c), the appeal pertains to a rollback from preferential use assessment to full market value for the years 1997 through 2003 for Parcel 1, and 1998 through 2003 for Parcels 2 and 3. Trial was held on November 29, 2004 and March 2, 2005. The court makes the following findings:

I. FINDINGS OF FACT

(1) The appellants are Michael H. Moore and Andrea Wardenski Moore, with an address at 120 Old State Road, Reading, Berks County, Pennsylvania 19606.

(2) The appellee is the Berks County Board of Assessment Appeals, having an address at the Berks County Services Center, Third Floor, 633 Court Street, Reading, Berks County, Pennsylvania 19601.

(3) At all pertinent times, the Moores were the owners of three parcels of real estate situated entirely within Alsace Township in the Oley Valley School District, totaling 90.94 acres as follows:

(A) 62.63 acres, located at 120 Old State Road, pin no. 22-5338-04-54-7554 (Parcel 1);

(B) 15.88 acres, located at Apple Lane, pin no. 22-5338-01-45-2364 (Parcel 2); and

(C) 12.43 acres, also located at Apple Lane, pin no. 22-5338-01-45-5425-001 (Parcel 3).

(4) Parcel 1 has an assessed value of $460,800, Parcel 2 has an assessed value of $55,600 and Parcel 3 has an assessed value of $43,500.

(5) In 1976, appellant, Michael H. Moore, purchased approximately 89 acres from his father and continued its use as a farm. The farming operation included hogs, com, soybeans, winter wheat and hay. In 1990, the Moores discontinued the hog farming operation. They eventually also eliminated the growing of hay.

(6) This original 89-acre farm has been known and referred to as “Shamrock Farm” since 1981.

(7) The farm included the farm residence and garage, five outbuildings, which were used to house the hogs and store crops and farm equipment, as well as tillable land, pasture and woodland.

(8) The outbuildings existing on the property in 1976 are identified in exhibit B-4 as buildings A, B, D, E and H. Buildings A, B, D and E were used to house livestock, and building H was used to house farm equipment.

(9) Subsequently, the Moores constructed additional outbuildings, also identified in exhibit B-4. Building G was constructed shortly after appellant, Michael H. Moore, purchased the premises and was used as a garage to house personal automobiles. Building F was constructed in 1994 and was originally used to store personal vehicles. Buildings I and J were constructed in 1996 and were used for the storage of personal items and farming equipment. Building K was constructed in 1997 and was originally used for the storage of personal items and farming equipment. Building C was constructed in 1998 and was originally used for the storage of personal items and farming equipment.

(10) Eventually, outbuildings C, F, I, J and K and partitioned portions of outbuildings A and D were converted from their existing use to a commercial use, whereby the Moores would provide storage space to third parties.

(11) The Moores began renting building F to third parties in 1998, buildings I, J and K sometime between 1999 and 2001 and building C in 2001. The Moores also rented portions of buildings A and D to third parties at all pertinent times.

(12) The square footage used in the outbuildings for storage space to third parties totals 21,910 square feet.

(13) In 1995, the Moores purchased a parcel of land of approximately nine acres from Mr. Moore’s brother. This land adjoined Shamrock Farm. The Moores annexed the nine acres to Shamrock Farm.

(14) Subsequently, the Moores subdivided Shamrock Farm and the annexed nine acres into four lots, one of which was sold off. The remaining three lots became Parcels 1, 2 and 3.

(15) Parcel 2 is composed of 13.71 acres from Shamrock Farm and 2.170 acres from the farm previously owned by Mr. Moore’s brother. Parcel 3 is composed of 9.84 acres from Shamrock Farm and 2.590 acres from the farm previously owned by Mr. Moore’s brother.

(16) All buildings, including the Moores’ residence and garage and the 11 outbuildings, are situated within Parcel 1.

(17) Also located on Parcel 1 is a network of driveways leading from Old State Road. The driveways are utilized by the Moores for their personal, farming and forest reserve uses, and are also used by the Moores’ commercial patrons.

(18) The original driveway, known as the “lower driveway,” leading from Old State Road to the dwelling house, was constructed in the mid 1950s. Another driveway, known as “the middle driveway,” was constructed in about 1966 to serve outbuilding A. The Moores next constructed the “end driveway” in 1996, which extended from the dwelling house to the northwest to facilitate access to the tilled fields. Finally, the driveway known as the “top driveway” was constructed, connecting the ends of the existing driveways, facilitating access to outbuildings I and J.

(19) On or about November 2, 1992, and prior to the Moores acquiring the adjoining lot from Mr. Moore’s brother or subdividing the acreage, the Moores submitted an application to the Berks County Board of Assessment, requesting that the 89-acre farm be given preferential assessment under the Clean and Green Act, commencing tax year 1994.

(20) On the application, the Moores allotted the acreage as follows: one acre designated “homesite,” 30 acres designated “tillable,” four acres designated “pasture,” 50 acres designated “forest,” and four acres designated “residual.” Nothing was designated as “other ineligible” land.

(21) The application defined “homesite” as “normally one acre is required for each occupied house. A farm with one house, bam and outbuildings require one acre.” It defined “ineligible land” as: “The acres necessary to support any non-agricultural use, for example: commercial operation of a business, including a parking lot.” (emphasis in original) “Residual” was defined as: “The number of remaining acres of land which are not suitable for building sites, agricultural or forest land use. Normally restricted to swamp lands, ravines, etc.”

(22) The four acres allocated by the Moores to “residual” on the application consisted of the acreage where the then existing outbuildings, and the sites of future outbuildings, were located. A stream bed and small pond were also included within the four acres.

(23) By notice dated October 28, 1993, the Berks County Assessment Office notified the Moores that their application for enrollment into the Clean and Green program had been accepted, effective January 1, 1994.

(24) Following the annexation and subdivision that created Parcels 2 and 3, the Moores applied for enrollment of those Parcels into the Clean and Green program. Specifically, the application requested preferential use for 4.76 acres, acreage which was originally from Mr. Moore’s brother’s property, and which had been included with part of Shamrock Farm to form Parcels 2 and 3. The eligible acreage was designated “forest.”

(25) By notice dated September 19,1997, the Assessment Office notified the Moores that the application for Parcels 2 and 3 had been accepted into the Clean and Green program, effective January 1, 1998.

(26) Act 156 of 1998 was passed on December 21, 1998, and amended the Clean and Green Act. Section 5490.8(d)(1) of the Clean and Green Act now provides, in pertinent part: “a landowner may apply a maximum of two acres of a tract of land subject to preferential assessment toward direct commercial sales of agriculturally related products and activities or for a rural enterprise incidental to the operational unit without subjecting the entire tract to rollback taxes, provided that: ... (iii) the rural enterprise does not permanently render the land incapable of producing an agricultural commodity.”

(27) By notices dated November 10,1999, the Assessment Office advised the Moores for the first time that the assessed value of their real estate would change pursuant to Act 156. The new assessment would go into effect January 1, 2000, for the 2000 tax year.

(28) By notices dated November 8,2002, the Assessment Office advised the Moores that the assessed value of their real estate would change pursuant to Act 156. The assessment would go into effect January 1, 2001, for the 2001 tax year.

(29) By notices dated October 31, 2001, the Assessment Office advised the Moores that the assessed value of their real estate would change pursuant to Act 156. The assessment would go into effect January 1, 2002, for the 2002 tax year.

(30) By correspondence dated November 25, 2003, the Assessment Office notified the Moores of a breach of the Clean and Green Act. The correspondence stated, in part: “As a result of the rural enterprise covering more than 2.00 acres, the agreement covering the entire tract has been breached. Under the provisions of Act 319, this change is subject to a penalty, which is based on the difference between the market value assessment and the preferential assessment.”

(31) As a result of the alleged Clean and Green breach, the Assessment Office imposed rollback taxes for seven years on Parcel 1 and for six years on Parcels 2 and 3, totalling $52,519.04, plus interest and recording fees.

(32) The Moores appealed the rollback tax assessment to the board. The board held a hearing on the Moores’ appeal on January 26,2004, and rendered a written decision on February 2,2004, finding that the Moores breached their Clean and Green agreement and upholding the assessment of the rollback taxes on all of the real estate.

(33) On or about February 10,2004, the Moores paid $52,795.97 for the assessed rollback taxes, interest and recording fees.

(34) On March 1, 2004, the Moores appealed the board’s decision to this court.

(35) The Moores have not reapplied for enrollment of Parcel 1 in the Clean and Green program, pending the outcome of their appeal to this court.

(36) Subsequently, on April 1,2004, the Moores sold Parcels 2 and 3.

II. DISCUSSION

In determining that the Moores’ Parcels are subject to rollback tax, the board argues that the Moores’ 1992 application for preferential assessment was defective for failing to designate the commercial portion of Shamrock Farm as “ineligible land.” Because of this improper designation, the commercial acreage was included within the preferential assessment when the Assessment Office accepted the application for enrollment. The board concludes that the Moores’ application misled the Assessment Office and should not have been approved.

The board also claims that Parcels 2 and 3, both of which consisted of combined acreage from Shamrock Farm and the parcel purchased from Mr. Moore’s brother, should not have been enrolled into the Clean and Green program, because the acreage coming from Shamrock Farm is ineligible. In essence, Parcels 2 and 3 could not be considered contiguous under section 5490.7 of the Clean and Green Act because the Shamrock Farm acreage was already ineligible. Further, considering only the portions of Parcels 2 and 3 which came from Mr. Moore’s brother’s land, there is insufficient acreage to comply with the minimum acreage requirement under section 3 of the Clean and Green Act.

Certainly, had the Moores accurately completed the 1992 application, all the eligible land, including Parcels 2 and 3, as contiguous land under section 5490.7, would have qualified as land subject to preferential use assessment. The portion of Shamrock Farm/Parcel 1, designated for commercial use, would have been fully assessed. See McLoughlin v. Bradford County Board of Assessment, 130 Pa. Commw. 409, 568 A.2d 721 (1989). Further, there was no change of use, nor split- off by the Moores, which would have disqualified the eligible acreage.

Mr. Moore contended in his testimony that the inaccuracy in the application was inadvertent and due to his own confusion. He attended a meeting held by the Assessment Office for landowners interested in applying for preferential use assessment under the Clean and Green Act. He testified that the procedures were not made clear to him at that time. Accordingly, when he included the commercial acreage under the “residual” category rather than “other ineligible,” he believed he was properly filling out the application.

The first question is whether an application for preferential use assessment can be amended retroactively to accurately set forth land designations, where, due to the inadvertence of the owner, between 86 to 88 acres of a 90-acre parcel are eligible for preferential assessment, but the remaining two to four acres which are ineligible are improperly designated as residual.

The primary purpose of the Clean and Green Act is to preserve the important and dwindling natural resource of agricultural land and forestry. This is accomplished through the Act providing incentive to the landowner in the nature of a reduction in his property tax to cause him to ignore the development value of the land and preserve the land in its current state. Feick v. Berks County Board of Assessment Appeals, 720 A.2d 504, 506-507 (Pa. Commw. 1998). Here, this purpose was met through the Moores’ application. Since 1992, 86 to 88 acres owned by the Moores have been reserved for agricultural or forest use.

We also note, however, that section 5490.4(a.l) expressly requires “a complete and accurate application,” which the County Assessment Office shall then accept. It is fundamental that the completed application be accurate to prevent fraud and to preserve the integrity of the preferential use process. It is not feasible, nor required, for the Assessment Office to check into the accuracy of each application prior to acceptance and enrollment.

Further, the Clean and Green Act does not expressly provide any authority for amending an application for preferential assessment to modify or correct an application.

We agree with the board that the presence of the material inaccuracy in the application for enrollment resulting in noneligible acreage being included for preferential use should result in a disqualification of the entire tract previously approved for preferential assessment. To hold otherwise is to welcome irresponsible and even fraudulent preparation of applications, fraught with mistakes which the landowner could argue should be corrected only after it is discovered.

We note by analogy section 5490.5(a) of the Clean and Green Act, which deals with penalties for ineligible use. Under that provision, when a landowner changes the use of a tract of land from eligible to ineligible, the affected tract, and the entire tract of which it was a part, is subject to rollback taxes. If land which is properly enrolled under the Clean and Green Act is subject to rollback taxes due to a change in use, it is also appropriate to terminate preferential assessment when the initial application improperly includes ineligible land in its request for preferential assessment.

Further, we are not persuaded by the Moores’ argument that the inaccurate enrollment is excused under the provisions of 7 Pa. Code §137(b).52(f). That provision states:

“If a county assessor erroneously allowed the enrollment of land that did not, at the time of enrollment, meet the minimum qualifications for preferential assessment, the county assessor shall, in accordance with section 3(d)(2) of the Act, provide the landowner written notice that preferential assessment is to be terminated. The notice shall state the reasons for termination and afford the landowner the opportunity for a hearing. If the use of the land was not an eligible use at the time it was enrolled and preferential assessment is terminated for that reason, no rollback taxes shall be due from the landowner as a result.”

This provision contemplates improper action by the county assessor. Here, the error was committed by the Moores. Their error misled the County Assessment Office. As already stated, the Assessment Office cannot be charged with investigating every tract proposed to be enrolled for preferential assessment. It is only when the Assessment Office is responsible for the error, such as where a landowner properly designates acreage as ineligible but the Assessment Office improperly enrolls that acreage for preferential assessment, can this provision be implemented to excuse payment of rollback taxes.

Nevertheless, the amount of rollback taxes imposed was improper and the board must be reversed in part because the notice provided to the Moores advising them of the imposition of rollback taxes was materially defective.

Section 5490.3(d)(2) of the Clean and Green Act states:

“(d) the County Board of Assessment Appeals may not terminate preferential assessment of land previously determined by the board to qualify for preferential assessment without:...
“(2) written notice under section 5(a)(2) from the county assessor to the landowner that preferential assessment is to be terminated, stating the reason for such termination and the opportunity for a hearing under section 9.”

This section, as well as section 5(a)(2), to which it refers, requires that the notice state the reason for the termination. This requirement is not a mere technicality, but is a necessary measure to provide sufficient information to a landowner of the issues affecting his preferential use assessment, and enabling him to prepare an effective appeal. The notice requirement protects the procedural rights of the landowner whose property interests may be affected by the outcome. Further, the notice requirement is couched in mandatory language.

The notice provided to the Moores from the Assessment Office, dated November 25, 2003, states, in relevant part: “As a result of the rural enterprise covering more than 2 acres, the agreement governing the entire tract has been breached. Under the provisions of Act 319, this change is subject to a penalty, which is based on the difference between the market value assessment and the preferential assessment.”

As is apparent, no mention is made in the notice of the inaccuracy in the Moores’ 1992 application. Accordingly, the board’s action in relying on the inaccurate application as a basis for its determination was improper. Given that the inaccuracy may be little more than an inadvertent technical flaw, the Assessment Office should not be permitted to insist on termination on this basis without itself being in compliance with the Clean and Green Act. We hold that the preferential assessment cannot be terminated on the basis of the inaccurate application, due to the failure of the Assessment Office to properly notify the Moores of this basis for termination.

The notice does advise the Moores of the Assessment Office’s position that section 5490.8(d)(1) of the Clean and Green Act, relating to “rural enterprise,” was breached. That section states, in pertinent part:

“a landowner may apply a maximum of two acres of a tract of land subject to preferential assessment toward direct commercial sales of agriculturally related products and activities or for a rural enterprise incidental to the operational unit without subjecting the entire tract to rollback taxes, provided that:... (iii) the rural enterprise does not permanently render the land incapable of producing an agricultural commodity.”

We note, preliminarily, that, since the Assessment Office’s notice limits termination of preferential assessment to breach of the rural enterprise provision, the rollback taxes must be recalculated. Act 156, which amended the Clean and Green Act, was first implemented in Berks Counly in 2000. Accordingly, rollback taxes cannot be assessed on this basis for the years 1997,1998 and 1999. Secondly, to the extent the rural enterprise provision was breached, this breach affects Parcel 1 only. The Moores’ commercial enterprise never involved Parcels 2 and 3. Accordingly, Parcels 2 and 3 are not subject to rollback taxes.

We turn then to the final question, whether the Moores may continue to enjoy preferential use assessment of the land under the rural enterprise provision. It is well established that a statute exempting persons or properties from taxation must be strictly construed against the taxpayer. Section 1928(b)(5) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1928(b)(5); Deigendesch v. County of Bucks, 505 Pa. 555, 482 A.2d 228 (1984). This rule of statutory construction applies to the Clean and Green Act. Hydrusko v. County of Monroe, 699 A.2d 828, 831 (Pa. Commw. 1997). Further, to qualify for a tax exemption, the landowner bears the burden of bringing himself within the ambit of the exemption. Presbyterian-University of Pennsylvania Medical Center v. Board of Revision of Taxes, 24 Pa. Commw. 461, 464, 357 A.2d 696, 698 (1976).

We find that the commercial use of the property by the Moores does not qualify as a rural enterprise. A rural enterprise must be “incidental to the operational unit.” The Moores operate Parcel 1 as a farm. The commercial use consists of rentals of storage space to third parties.

Black’s Law Dictionary defines “incidental use,” in the context of zoning, as “use of premises which is dependent on or affiliated with the principal use of such premises.” The rural enterprise provision contemplates a similar relationship between the rural enterprise and the operational unit. Here, the commercial use is neither dependent on nor affiliated with the principal use and, in fact, is totally unrelated to the Moores’ farming operation.

Whether the Moores’ commercial operation is contained within two acres or less of the tract is also questionable. The Moores presented testimony from David W. Silberman, a professional land surveyor, who testified that the square footage of the buildings used for commercial purposes was 21,910 square feet. (N.T., March 2, 2005, p. 18.) The driveway network accessing the buildings was measured at 1.422 acres. (N.T., March 2, 2005, p. 21.) Thus, the total area of the buildings and the paved access areas totaled 1.924 acres. (N.T., March 2, 2005, p. 21.) However, if you include the grassy areas among the driveway network as well, the total acreage increases to 4.28 acres, established by the board’s exhibit B-3.

The Moores claim that the driveway network and the grassy areas should not be considered part of the commercial use, but rather should be included as “farmstead land” and “curtilage” as defined by section 5490.2 of the Clean and Green Act. “Farmstead land” is defined under that section as “any curtilage and land situated under a residence, farm building or other buildings which supports a residence, including a residential garage or workshop.” “Curtilage” is defined as “the land surrounding a residential structure and farm building use for a yard, driveway, on-lot sewage system or access to any building on the tract.”

The network of driveways supports both the Moores’ personal and farming operation needs and the commercial use. To gain access to the outbuildings, tenants drive their vehicles on the paved cart ways. Regarding the grassy areas, the Moores indicated that these areas could be used for pasture lands. However, it appears that the land is not used for any purpose other than possibly short-term parking for the tenants. According to Judith R. Barr, an employee of the Assessment Office, the grassy areas were basically unusable land, and were terraced. (N.T., March 2, 2005, p. 6.)

For land to qualify for preferential use, the land must be used exclusively for an eligible purpose. Land which serves both eligible and ineligible uses cannot qualify for preferential status. Accordingly, the driveway network acreage must be deemed ineligible. Further, the grassy areas, which appear to support the commercial use and not the farmland use, is also ineligible acreage. The Moores claim that the commercial or “rural enteiprise” is limited to less than two acres is not supported by law.

Even assuming the grassy areas would not be included in the commercial use acreage, the Moores have, nevertheless, failed to sustain their burden that the building and driveway network is less than two acres. As stated, Mr. Silberman found this acreage to be 1.924 acres, in other words, short of two acres by 3,311 square feet. His method in reaching this figure was inexact, however. He estimated based on the scale of the drawings he had prepared of the area. No survey was performed, nor were exact measurements taken. Additionally, at the first day of trial, Mr. Silberman had presented a figure of 1.409 acres for the building and driveway square footage, patently inconsistent with his later testimony. On cross-examination, it was apparent that Mr. Silberman measured portions of the land for some purposes and other portions for other purposes. The Moores did not present sufficient evidence to establish that the acreage of the commercial building and driveway network was two acres or less.

For the reasons set forth, this court remands the matter back to the board to recalculate the rollback tax penalty. Accordingly, we enter the following order:

ORDER

And now, May 5, 2005, after trial held on the appeal of Michael H. Moore and Andrea Wardenski Moore from the decision of the Berks County Board of Assessment Appeals, and after review of the briefs of the parties and argument, this court affirms in part and reverses in part the Board of Assessment Appeals.

Specifically, the decision of the board terminating preferential use assessment for 62.63 acres located at 120 Old State Road, Alsace Township, Berks County, Pennsylvania, pin no. 22-5338-04-54-7554 (Parcel 1), is affirmed for the years 2000, 2001, 2002 and 2003 and is reversed for the years 1997,1998 and 1999.

The decision of the board terminating preferential use assessment for 15.88 acres located at Apple Lane, pin no. 22-5338-01-45-2364 (Parcel 2), and 12.43 acres located at Apple Lane, pin no. 22-5338-01-45-5425-001 (Parcel 3), is reversed.

This matter is remanded to the Board of Assessment Appeals for further proceedings to recompute the imposition of rollback taxes for Parcel 1 for the years 2000, 2001,2002 and 2003. Upon making this determination, appellants, Michael H. Moore and Andrea Wardenski Moore, shall receive a refund of monies paid for all rollback taxes improperly imposed, together with interest on those taxes.

      . The driveway system appears on exhibit M-15 in the light blue, shaded area.

      . 72 P.S. §5490.8(d)(1).

      . 72 P.S. §5490.3.

      . Over time, the Moores did change the use of some of the outbuildings from personal to commercial use. From a comprehensive standpoint, however, the commercial use was already present at the time of the 1992 application.

      . 72 P.S. §5490.5(a).

      . 72 P.S. §5490.3(d)(2).

      . 72 P.S. §5490.5(a)(2).

      . Note section 5490.5(a) which states that it shall be the duty of the county assessor, inter alia, to notify, in writing, the landowner of any preferential assessments terminated and the reason for termination within five days of such change.

      . Black’s Law Dictionary, 6th ed., St. Paul, Minnesota, West Publishing Company 1990, p. 762.

      . 72 P.S. §5490.2.


source: Caselaw Access Project

author: KENNEDY, J,

license: Public Domain

text:
    Mumford v. Stetler & Gribbin

      C.P. of York County,
    no. 2004-SU-2726-Y01.

      Dennis L. Abramson and Gilbert B. Abramson, for plaintiff.

      Timothy J. McMahon, for defendant.
    April 28, 2005
   KENNEDY, J,

FACTS

The plaintiff in this case, Edward G. Mumford, has filed suit against the defendant, Jill A. Dietrich-Gilden, Esq., for defamation, invasion of privacy, and punitive damages. The plaintiff has also brought an action against Ms. Dietrich-Gilden’s employer, Stetler and Gribbin, Attorneys at Law, for those same claims, but instead basing them on the theory of respondent superior, and adding the claim of negligent supervision. The claims concern an incident at a Christmas party attended by Mr. Mumford, Ms. Dietrich-Gilden, and others, collectively referred to in the plaintiff’s brief as the “York County business elite.” During the party, Ms. Dietrich-Gilden is alleged to have made defamatory statements concerning the plaintiff by virtue of information obtained through her law firm’s representation of a party adverse to the plaintiff, in litigation.

Pursuant to Rule 1042 of the Pennsylvania Rules of Civil Procedure, related to actions in professional liability, the defendants filed a praecipe for entry of judgment of non pros with the prothonotary of York County for plaintiff’s failure to file a certificate of merit. Based on this praecipe and defendants’ certification, the protho-notary issued a judgment of non pros against the plaintiff. Plaintiff now brings this petition to vacate judgment of non pros asserting that the Rule 1042 certificate of merit requirement is inapplicable to this case.

DISCUSSION

The issue in this case is whether or not, under the particular factual circumstances of this case, the plaintiff is entitled to relief from a judgment of non pros for failing to file a certificate of merit. More specifically, the question is whether or not a certificate of merit is required when the plaintiff’s complaint contains counts of defamation, invasion of privacy, and punitive damages against the attorney of a party adverse to the plaintiff in litigation, as well as claims of respondeat superior and negligent supervision against that attorney’s law firm. The claims stem from alleged defamatory statements made concerning the plaintiff that were based on information obtained by virtue of the law firm’s representation of a party adverse to the plaintiff in litigation.

In order to obtain relief from a judgment of non pros by opening a judgment, a party must petition the court and allege facts indicating that the petition is timely filed, that there is a reasonable explanation or legitimate excuse for the inactivity or delay, and that there is a meritorious cause of action. Pa.R.C.P. 3051(b).

In this case, the plaintiff’s petition to vacate the judgment of non pros was filed three days after entry of the judgment. We find the petition to be timely filed.

Turning next to whether or not the plaintiff’s underlying claims constitute a meritorious cause of action, we find that they do. Based upon their brief, we understand defendants’ argument on this point to be that the plaintiff is required to specifically state in his petition that his claims are meritorious. Defendants argue that the plaintiff’s petition says nothing ofthe merit ofthe claims. Defendants cite the Superior Court’s holding in LaCaffinie v. Mirk Inc., 719 A.2d 361 (Pa. Super. 1998), to argue “it is incumbent upon a plaintiff, pursuant to Pa.R.C.P. 3051(b)(3), to raise in his petition, averments which themselves demonstrate that the action that has been non prossed was a meritorious cause of action.” Defs. brief in opposition ¶(3. citing LaCaffinie, 719 A.2d 361 at 362. In fact, the phrase that the Superior Court uses to state the Rule 3051 requirements in LaCaffinie is, “It remains incumbent upon a party seeking relief from a judgment of non pros to set forth the basis of a meritorious claim.” LaCaffinie, 719 A.2d 361 at 362. The court also states, “Where a non pros is based on inactivity, a request for relief from the non pros must include a recitation of the facts upon which a meritorious claim is based.” Id.

In LaCaffinie the petitioner failed to file a complaint or to attach a complaint to her petition for relief from a judgment of non pros. Id. The court was essentially left in the dark with respect to the facts upon which the petitioner’s complaint was based. Here the plaintiff has previously filed a complaint that is clearly referenced in the petition for relief. We believe that the circumstances of the case at bar distinguish plaintiff’s position from that ofthe petitioner in LaCaffinie because this court has been fully apprised of the facts upon which plaintiff’s claims are based, while the court in LaCaffinie had no such luxury. We find that plaintiff’s petition and its reference to the complaint of record adequately demonstrates a recitation of the facts necessary upon which plaintiff’s claims for defamation, invasion of privacy, and respondeat superior are based.

Additionally, the Superior Court has held that a defense justifying relief from liability, if proved at trial, is a meritorious defense. Duckson v. Wee Wheelers Inc., 423 Pa. Super. 251, 257, 620 A.2d 1206, 1209 (1993). This court can see no reason why this rationale should not also apply to a petitioner’s allegations. In the case at bar, we believe that the claims of defamation, invasion of privacy, and respondeat superior, if proved at trial, would afford the plaintiff relief. For this reason, and those discussed previously, we find that the plaintiff’s petition indicates a meritorious underlying cause of action.

The remaining issue is whether or not plaintiff’s default or delay in failing to file a certificate of merit can be reasonably explained or legitimately excused. A certificate of merit must be filed in any case containing allegations that a licensed professional deviated from an acceptable professional standard. Pa.R.C.P. 1042.3. The rule also provides that the certificate of merit must include the statement of an appropriate licensed professional that indicates the care, skill, or knowledge, exercised or exhibited in the treatment, practice, work, that is the subject of the complaint, fell outside acceptable professional standards and that the conduct was a cause in bringing about the harm. Pa.R.C.P. 1042.3(a)(1).

Plaintiff argues that his claims are not claims of professional liability, and therefore they are not subject to the certificate of merit requirements of section 1042.3. Defendants contend that specific paragraphs of plaintiff’s claim contain allegations sounding in professional liability, and therefore subject the complaint to the certificate of merit requirements.

Plaintiff’s claims against defendant, Ms. Dietrich-Gilden, are for defamation, invasion of privacy, and punitive damages. The plaintiff’s claims against Ms. Dietrich-Gilden’s law firm are essentially the same as those against her in her individual capacity, but they are instead based on the theory of respondeat superior, and additionally contain the count of negligent supervision.

Based upon its brief, the court understands defendants’ central argument to be that since specific paragraphs of plaintiff’s claim sound in professional negligence, plaintiff’s complaint must be considered one of professional liability, requiring the plaintiff to file a certificate of merit. The defendants list 12 paragraphs of plaintiff’s 83-paragraph complaint, that they believe sound in professional legal malpractice. Of these 12 paragraphs, the court finds that seven do little more than describe the defendant’s relationship with her employer, her scope of employment, or basic facts concerning the alleged incident. Def. brief ¶1. citing pis. complaint ¶¶5, 29, 65, 67, 68, 71, 77. One paragraph concerns how defendant Dietrich-Gilden became privy to information concerning the plaintiff. Id. ¶26. Another describes Ms. Dietrich-Gilden’s possible motivation for divulging the information. Id. ¶70. One paragraph alleges that Ms. Dietrich-Gilden’s law firm encouraged her to attend the function where the incident occurred. Id. ¶66. Another is a broad allegation of intentional, reckless, or negligent action by Ms. Dietrich-Gilden. Id. ¶30. And finally, one paragraph alleges violations of professional rules of conduct. Id. ¶5 0.

Except for the allegation concerning violation of the Pennsylvania Rules of Professional Conduct, we find each allegation properly set forth by the plaintiff in order to help establish the personal liability counts alleged in the complaint. We will not interfere with the plaintiff’s complaint by transforming an otherwise personal liability claim into one of professional negligence. As for the alleged professional conduct violations, such claims are improper as a basis for civil liability and therefore must be disregarded. See Pa. Rules of Professional Conduct, Preamble.

Therefore, if the ultimate outcome of this issue were simply to be decided on a determination of whether or not the allegations as pleaded constitute a claim for professional legal malpractice, we would find that they do not. However, this issue can be determined with a far more basic application of the law.

We believe that, in order to resolve this issue, the most prudent approach is to determine whether or not, under the circumstances of this case, the plaintiff could bring a cause of action for professional liability even if he chose to do so.

“The three elements of a cause of action for professional negligence (or legal malpractice) are: (1) the employment of the attorney or other basis for his duty to act as an attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff.” Ibn-Sadiika v. Riester, 380 Pa. Super. 397, 403, 551 A.2d 1112, 1115 (1988); Veneri v. Pappano, 424 Pa. Super. 394, 397, 622 A.2d 977, 978-79 (1993).

In this case there is no indication whatsoever that the defendant owed any professional duty to the plaintiff. The plaintiff was not a client of the defendants and there is no indication from the facts that there was any other basis for the defendants to act as the plaintiff’s attorneys. Ms. Dietrich-Gilden was simply an attorney for the law firm that represented a party adverse to the plaintiff, in pending litigation. Therefore, the professional liability classification that the defendants would like us to attach to the plaintiff’s complaint cannot be applied under these circumstances. Because lack of this critical element is dispositive as to whether a professional liability claim may stand, we need not address the remaining elements. We find that the plaintiff’s complaint as pleaded could not stand as an action for professional liability, and thus we find the certificate of merit requirements of Rule 1042 to be inapplicable to plaintiff’s claim.

CONCLUSION

This court finds that the defendant owed no professional duty to the plaintiff through employment or otherwise, and therefore the claims against the defendant, Ms. Dietrich-Gilden, for defamation, invasion of privacy, and punitive damages are not professional liability claims subject to the certificate of merit requirements. For the same reasons, we must hold that the claims against the defendant, Stetler and Gribbin, Attorneys at Law, based upon the theory of respondeat superior and negligent supervision, are also not professional liability claims subject to the certificate of merit requirements. The judgment of non pros is vacated.

ORDER

And now, to wit, April 28, 2005, upon consideration of plaintiff’s petition to vacate judgment of non pros, it is hereby ordered and decreed that plaintiff’s petition is granted.


author: TERESHKO, J,

text:
    Stimmler v. Chestnut Hill Hospital

      Anastasia M. Buccino-Roth and Joseph L. Messa Jr., for appellant.

      Joann Giangiulio, Richard A. Kolb, Michael O ’Con-nell Pitt and William Sutton, for appellees.
    April 7, 2005
   TERESHKO, J,

I. PROCEDURAL HISTORY

This appeal by plaintiff Ann Stimmler arose as a result of this court’s order granting defendants Chestnut Hill Hospital, Dr. Samuel Watterson, Dr. Walter Mat-teucci, and Dr. Padula’s motions for summary judgment for failure to establish breach of the standard of care and causation.

II. FACTS

On May 12,1965, Ann Stimmler (plaintiff) presented to Chestnut Hill Hospital for the birth of her first child. (Third amended complaint, dated 9/18/03, ¶12.) The birth was uneventful and not an issue in this case. Several hours following the delivery of her baby, plaintiff went into peripheral circulatory failure (shock). This necessitated Dr. Anthony Padula to insert an IV catheter in plaintiff’s right arm via an antecubital cutdown procedure on May 13, 1965, and a left antecubital cutdown procedure in plaintiff’s left arm on May 15, 1965. (Id. at ¶¶14-15.) Dr. Samuel Watterson, at the time a Family Practice Intern at Chestnut Hill, ordered the removal of the catheters from the cutdown procedures. Dr. Padula removed the right antecubital cutdown on May 15,1965, and the left on May 16, 1965. (Dep. of Dr. Padula, dated 3/22/ 04, pp. 35-38.) Plaintiff was discharged from Chestnut Hill Hospital on May 22, 1965. (Third amended complaint, ¶16.)

Since May 1965, plaintiff has sought numerous medical treatments for circulatory and respiratory problems, and has been frequently treated with Coumadin. (Third amended complaint, ¶¶ 16-24.) These medical treatments include the placement of catheters into her body on no less than 16 separate occasions, excluding the cutdown procedures performed in May 1965. (Dr. Padula’s request for admissions, dated 3/24/04.)

On January 19, 2000, plaintiff underwent a trans-esophageal echocardiograph, where it was observed that a fragmented “catheter-like” foreign body was coiled in the right atrium of her heart, passing into and through the right ventricle to the outflow tract. (Third amended complaint, ¶25.) On February 8, 2000, plaintiff underwent another echocardiogram, which confirmed the presence of a fragmented “catheter-like” presence in the right atrium and right ventricle. (Id. at ¶26.) Plaintiff alleged that this was one of the catheters used during her cut-down procedures in May 1965, and not the result of any of her 16 subsequent catheterizations. (Id. at ¶27.) The fragmentation of the foreign device inhibits the possibility of its removal. Plaintiff further claimed that the presence of this “catheter-like” device, from the May 1965 procedure, was the cause of all of her hospitalizations for circulatory and respiratory problems since May 1965. (Id. at ¶30.) Plaintiff also alleged that, as a result of the presence of this fragmented foreign device, she will be on Coumadin for the remainder of her life. (Dr. DePace’s expert report, dated 8/4/03, p. 1.)

Plaintiff subsequently commenced this medical malpractice action against defendants by filing a complaint on September 6, 2001, alleging that defendants negligently performed the May 1965 cutdown procedures. Plaintiff also has a claim for corporate negligence against Chestnut Hill Hospital. Thereafter, plaintiff filed an amended complaint on April 1,2002, and a third amended complaint on September 18, 2003. During discovery, plaintiff provided medical expert reports and supplemental reports from Drs. James A. Reiffel and Nicholas DePace. Dr. Watterson and Chestnut Hill separately filed motions for summary judgment on May 3, 2004. Dr. Padula filed his motion for summary judgment on May 4, 2004, and Dr. Matteucci filed his on May 21, 2004. This court granted all defendants’ motions on July 14, 2004, because plaintiff’s experts failed to opine to the requisite degree of medical certainty, and their reports were based on speculation and conjecture. Plaintiff, therefore, was unable to establish breach of the standard of care and causation.

Plaintiff subsequently filed her petitions for reconsideration on July 26, 2004, which this court has denied. Plaintiff has since filed her notice of appeal to the orders granting summary judgment, and has issued her statement of matters according to Pa.R.A.P. 1925(b).

III. LEGAL ANALYSIS

Issue

(1) Whether the lower court committed an error of law and/or abuse of discretion in granting the defendants’ motions for summary judgment for failure to establish defendants Drs. Watterson, Padula, and Matteucci, and Chestnut Hill Hospital breached the standard of care and causation?

Viewing the facts in light most favorable to plaintiff, Ann Stimmler, this court granted summary judgment for defendants, Chestnut Hill Hospital, Dr. Samuel Watter-son, Dr. Walter Matteucci, and Dr. Padula. Plaintiff proffered original and supplemental expert reports from Drs. Reiffel and DePace. However, the experts’ reports, taken as a whole, failed to establish, to a reasonable degree of medical certainty, that plaintiff’s injuries were caused by a fragmented catheter left behind during the removal of catheters from cutdown procedures in May 1965. Plaintiff’s experts’ opinions were also based on conjecture and speculation. Thus, plaintiff has failed to establish that defendants breached the standard of care and causation.

To establish a cause of action in a medical malpractice claim, plaintiff has the burden of proving the following elements: (i) defendant owed a duty to the plaintiff, (ii) defendant breached that duty, (iii) that breach was the proximate cause of, or a substantial factor in, bringing about the harm suffered by plaintiff, and (iv) the damages plaintiff suffered were a direct result of the harm. Kurian v. Anisman, 851 A.2d 152, 156 (Pa. Super. 2004). Where the events and circumstances of a malpractice action are beyond the knowledge of the average layperson, plaintiff must present expert witness testimony, to a reasonable degree of medical certainty, that the acts of the medical practitioner deviated from the good and acceptable standards, and that such deviation was the proximate cause of the harm suffered. Id. at 155 (citing Toogood v. Owen J. Rogal D.D.S., 573 Pa. 245, 255, 824 A.2d 1140, 1145 (2003)).

In order to prove a prima facie medical malpractice claim, plaintiff’s expert must testify with “reasonable certainty” that “in his ‘professional opinion, the result in question did come from the cause alleged.’ ” Cohen v. Albert Einstein Medical Ctr., 405 Pa. Super. 392, 399, 592 A.2d 720, 723 (1991) (quoting Kravinsky v. Glover, 263 Pa. Super. 8, 396 A.2d 1349 (1979)). Although an expert’s opinion need not be based on absolute certainty, an opinion based on mere possibilities is not competent evidence. Childers v. Power Line Equipment Rentals Inc., 452 Pa. Super. 94, 110, 681 A.2d 201, 210 (1996). An expert fails this standard of certainty if she testifies “that the alleged cause ‘possibly’, or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.” Niggel v. Sears, Roebuck & Co., 219 Pa. Super. 353, 355, 281 A.2d 718,719 (1971) (see also, Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256 (1926); Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43 (1965)).

In Hoffman v. Brandywine Hospital, 443 Pa. Super 245, 249, 661 A.2d 397, 399 (1995), decedent contracted HIV via blood transfusions administered during surgery. Decedent’s executrix alleged that Dr. Eck, decedent’s family physician, negligently treated decedent after she was diagnosed as HIV positive. Id. at 250, 661 A.2d at 399. To state her prima facie case, plaintiff relied on the expert report of David H. Solis D.O., who opined, in relevant part,

“To review, it is my opinion that Dr. Eck did not meet the standard of care for a family physician in the treatment of his patient, Helen Perpinka, from the time that she was discovered to be HTLV III (HIV) positive to the time that she was referred to an infectious disease specialist .... It is my opinion that because he chose not to refer Mrs. Perpinka to an infectious disease specialist that he undertook these awesome responsibilities on his own and he was ill-prepared to carry them out. This, in all likelihood, delayed the administration of anti-viral medication which may have hastened the onset of opportunistic disease in Mrs. Perpinka and caused her illness to progress sooner than it might have. ” Id. at 255, 661 A.2d at 402. (emphasis added)

The Superior Court affirmed the lower court’s grant of summary judgment in favor of Dr. Eck. Id. at 256, 661 A.2d at 402. The Superior Court held that plaintiff’s expert did not express the requisite degree of medical certainty, and, therefore, has failed to state a prima facie case of medical malpractice. Id.

Here, similar to the expert in Hoffman, plaintiff’s experts, in their original and supplemental reports, failed to opine to the requisite degree of medical certainty that the defendants caused plaintiff’s injuries. In Dr. James A. Reiffel’s April 4,2004 expert report, he opined, in relevant part:

“Ms. Stimmler is certainly a patient who has undergone several hospitalizations and medical evaluations, many related to childbirth, phlebitis and/or pulmonary emboli or suspicion thereof, and others for possible infectious-related illness and for injuries. During the course of these hospitalizations, all but one of which were at Chestnut Hill Hospital, intravascular diagnostic studies and delivery of intravascular therapy were utilized (all being at Chestnut Hill Hospital), including bilateral arm cutdowns in May 1965, repeated venograms, and anesthesia/operative procedures. Of these, the one in which there was the highest likelihood of a catheter being inserted which was long enough to account for the findings of the echocardiograms, and the ones, which for technical reasons, were the most likely to result in damage to such a catheter were the antecubital cutdowns in May of 1965. Although no details are provided in the hospital records or the deposition material I received to allow a precise determination of how the catheter material came to embolize to the right heart and reside there chronically, that is, whether it was related to the insertion technique or the removal technique, with a high degree of medical certainty, I can state that while such complications of intravascular catheterization are recognized, they are beyond the standard of care and virtually always represent negligence in the insertion, removal, and/ or maintenance of the intravascular catheter. If additional procedural reports concerning the cutdown, catheter placement, catheter removal, venograms, and operative reports can be found in Ms. Stemmier’s hospital records, I would like to see them for possible further clarification of the precise time and mechanism of the apparent catheter fragment embolization. They would not, however, alter the virtual certainty, that negligence was involved in the circumstance of catheter disruption and embolization that the echocardiographic findings appear to indicate.” (emphasis added)

Dr. Reiffel conceded that plaintiff has undergone several hospitalizations and medical evaluations, and that during the course of these hospitalizations, intravascu-lar diagnostic studies and delivery of intravascular therapy were utilized. Yet Dr. Reiffel opined that the hospitalization at Chestnut Hill in May 1965 was the one in which there was the “highest likelihood” of a catheter being inserted, which was long enough to account for the findings on the echocardiogram. Dr. ReiffePs opinion lacked the reasonable certainty necessary to establish that the May 1965 catheterizations were the cause the alleged foreign body.

In his May 26, 2004 supplemental expert report, Dr. Reiffel stated, “[W]ith a high degree of medical certainly, we can be sure that the catheter fragment in Ms. Stimmler’s heart must have come from the catheters inserted” in one of the cutdowns at Chestnut Hill Hospital in May 1965. Dr. Reiffel further stated, “This must be true despite the absence of any notes, pro or con, in the records about any difficulty with the insertion or the re-mo val of the cutdown catheters.” (Id. at 1.) This language does not meet the degree of certainty required by experts under Pennsylvania law. Dr. Reiffel’s language manifested uncertainty as to whether one of the catheters placed in May 1965 was in fact the catheter which has remained in plaintiff’s body.

Similarly, in Dr. DePace’s August 4, 2003 expert report, he broadly stated,

“It is apparent that this intravascular catheter migrated into the heart when it became dislodged from a peripheral vein many years ago. This is a very rare finding and certainly would be the result of the negligent act of manipulation of the catheter or placement.” (emphasis added)

Dr. DePace also submitted a supplemental report on May 27, 2004, where he simply adopted Dr. Reiffel’s original opinion: “I concur with Dr. Reiffel that the an-tecubital cutdowns were the most likely source of her catheter migration.” However, Dr. DePace’s language manifested a lesser degree of certainty than that used by Dr. Reiffel. Dr. DePace’s opinion, therefore, also failed to meet the requisite standard of medical certainty under Pennsylvania law.

Not only did Drs. Reiffel and DePace’s reports fail to meet the requisite degree of certainty, their reports were based on speculation and conjecture. Under Pennsylvania law, expert testimony is incompetent and may not be admitted into evidence if the expert’s opinion is based upon mere conjecture. Hussey v. May Department Stores Inc., 238 Pa. Super. 431, 435, 357 A.2d 635, 637 (1976). An expert’s opinion may be found conjectural because of the manner in which it is expressed. Id. An expert has to testify that, in his professional opinion, plaintiff’s injuries came from the cause alleged. A less direct expression of opinion falls below the required standard of proof, and does not constitute legally competent evidence. Id. Also, an expert’s opinion may be found conjectural because it does not have an adequate basis in fact. Id. An expert’s opinion may be based upon personal examination, upon assumed truth of testimony of other witnesses adduced in court, or upon combination of these two sources. Id.

An expert cannot base his opinion upon facts which are not warranted by the record. Collins v. Hand, 431 Pa. 378, 390, 246 A.2d 398, 404 (1968). No matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based upon mere conjecture. Id. In Collins, the Pennsylvania Supreme Court adopted the rationale that:

“It is the function of opinion evidence to assist the jury in arriving at a correct conclusion upon a given state of facts. To endow opinion evidence with probative value it must be based on facts proven or assumed, sufficient to enable the expert to form an intelligent opinion. The opinion must be an intelligent and reasonable conclusion, based on a given state of facts, and be such as reason and experience have shown to be a probable resulting consequence of the facts proved. The basis of the conclusion cannot be deduced or inferred from the conclusion itself. In other words, the opinion of the expert does not constitute proof of the existence of the facts necessary to support the opinion.” Id. (citing Dreher v. Order of United Commercial Travelers of America, 173 Wis. 173, 180 N.W. 815 (1921)).

In Collins, the court held that the lower court erred in refusing to grant appellant-doctor’s motion for a judgment n.o.v., because the evidence failed to establish that the psychiatrist’s failure to take or read x-rays to determine that the patient suffered bilateral acetabular fractures, or that physicians’ electroshock treatment was the cause of such fractures. 431 Pa. at 395-96, 246 A.2d at 407. The only proof of negligence on the part of the shock team was Dr. van der Meer’s opinion that too much restraint to Ms. Collins’ legs was improper medical practice. Id. at 391, 246 A.2d at 404. An examination of the record did not disclose any evidence that Ms. Collins’ legs were restrained during the course of electroshock treatment. Id. Dr. van der Meer’s opinion assumed (1) that restraints were applied to Ms. Collins’ legs, and (2) that this restraint was too much. Id. The court stated that based on the record, this testimony can only be classified as mere guess or conjecture and “would be to build a presumption on a presumption, which would build a smoke ladder into the skies of irresponsible speculation, which, fortunately, the law prohibits.” Id. (citing Auerbach v. Philadelphia Transportation Co., 421 Pa. 594, 602, 221 A.2d 163, 170 (1966)). The court held that Dr. van der Meer’s opinion was error and issued a new trial. Id. at 395-96, 246 A.2d at 407.

Here, Drs. Reiffel and DePace’s opinions lacked evidence supporting their conclusion that the May 1965 catheterizations, and not the 16 others (Dr. Padula’s request for admissions, dated 3/24/03), were the sole cause of her respiratory and circulatory problems. Dr. Reiffel admitted that he lacked any evidentiary support as the basis of his opinion. Dr. Reiffel stated, “ [Although no details are provided in the hospital records or the deposition material I received to allow a precise determination of how the catheter material came to embolize to the right heart and reside there chronically.” (Expert report, dated 4/4/04, p. 2.) Yet, Dr. Reiffel still opined that there had to be negligence either in the insertion, removal, and/or maintenance of the intravascular catheter. Similarly, it is not clear what, if any, prior medical records Dr. DePace in fact reviewed prior to reaching his conclusion. Dr. DePace makes no reference to reviewing any medical records and/or deposition testimony which would support his conclusions. Thus, as in Collins, Drs. Reiffel and DePace’s expert reports were based on speculation which cannot establish the standard of care and causation elements required to maintain this cause of action.

Admission of expert opinion evidence is a matter within the sound discretion of the trial court. Hussey, 238 Pa. Super, at 435, 357 A.2d at 637. The court determines all questions of law, while the jury passes on the credibility of witnesses and determines the facts. Williams v. Dulaney, 331 Pa. Super. 373, 379, 480 A.2d 1080, 1084 (1984). The jury, however, cannot reach a verdict based on speculation or conjecture. Id. Prior to sending the case to the jury, the trial court has the duty to determine whether the plaintiff has introduced sufficient evidence to establish the requisite elements to maintain an action. Id. at 379-80, 480 A.2d at 1084.

According to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, which governs motions for summary judgment,

“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 part as a matter of law:
“(1) whenever there is no genuine issue of any 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 experts 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.”

The moving party has the burden of demonstrating that no genuine issue of material fact exists. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). All doubts in the record must be viewed in the light most favorable to the non-moving party. Id. at 176, 553 A.2d at 903. The movant can only discharge his burden by showing that his/her opponent could produce no competent evidence to support a contrary position. Community Medical Services of Clearfield Inc. v. Local 2665, 292 Pa. Super. 238, 437 A.2d 23 (1981).

Here, neither of plaintiff’s experts set forth in their respective reports the required degree of medical certainty on causation for them to be submitted to the jury. Additionally, the experts’ reports were based on speculation and conjecture. Based on the expert reports, plaintiff would not have been able to prove to a reasonable degree of medical certainty that the foreign object currently found in the plaintiff’s heart definitively related to the Chestnut Hill hospitalization. Defendants, therefore, were entitled to summary judgment as a matter of law.

IV. CONCLUSION

In consideration of the analysis set forth above, this court believes that the defendants’ motions for summary judgment were properly granted, and should be affirmed by the court above.

      . This procedure involves cutting into a vein at the bend of the elbow on the inside of the arm to insert a catheter. After the catheter is removed, the cut is stitched shut, and a sterile dressing is applied.

      . Dr. Walter Matteucci, in response to plaintiff’s interrogatories, stated that he played no role in the insertion or removal of plaintiff’s catheters, and has neither performed nor witnessed any cutdown procedures.

      . Plaintiff generally denied any catheterizations during any of the hospital visits identified in Dr. Padula’s request for admissions. This court is without sufficient evidence regarding the nature of the 16 procedures because plaintiff generally denied the requests.

      . An endoscopic/ultrasound test provides ultrasonic imaging of the heart from a retrocardiac vantage point.

      . There is no evidence that plaintiff filed a second amended complaint.

      . Plaintiff’s praecipe to discontinue her action as to defendants Drs. M. Brown, William O’Connell, B. Smith, M.S. Jayashekara Murthy, and Bangolor Surey was approved by this court on October 1, 2004.


author: VALASEK, J.,

text:
    Commonwealth v. Stark

      C.P. of Armstrong County,
    no. CP-03-CR-0000649-2004.

      Frederick L. John II, for Commonwealth.

      Edward J. Bilik, for defendant.
    March 10, 2005
   VALASEK, J.,

Before the court for disposition is defendant’s omnibus pretrial motion in the nature of a motion to suppress evidence. Defendant is charged with possession of a controlled substance under 35 P.S. §780-13(a)(16) and possession with intent to use drug paraphernalia under 35 P.S. §780-13(a)(32). Upon request of both defense counsel and the district attorney, it was ordered that this motion be decided by the court on the basis of the transcript of the preliminary hearing. Both parties have submitted briefs.

FACTS

On June 12,2004, at 12:16 a.m., Police Officers Ryan Arbaugh and Craig Luffey drove into the public parking lot behind Miller’s Hoagies on Ninth Street in Ford City Borough. After entering the lot, the officers observed defendant and Nathan Nagy sitting inside a parked car. Officer Luffey approached on the passenger side of the parked vehicle as Officer Arbaugh followed behind, approaching on the driver side. After Officer Luffey informed Officer Arbaugh that there appeared to be some movement in the vehicle, Officer Luffey opened the passenger door and observed a white powdery substance on the floor mat. By this point, Officer Arbaugh had made his way to the driver side door and observed defendant-driver move his arm in the general direction of his lap. As Officer Luffey was speaking to Mr. Nagy, Officer Arbaugh opened the driver side door and confronted defendant. When Officer Arbaugh opened the door, a canister fell from between defendant’s legs to the floor. Defendant responded “Look” when the officer asked what had fallen. Officer Arbaugh reached down and confiscated a clear plastic film canister containing a baggie of cocaine. Defendant was then told to exit the vehicle. After being patted down for weapons, defendant was placed under arrest and transported to the Ford City Borough police station where he was Mirandized at 12:44 a.m. The defendant signed a waiver and gave a voluntary written statement. In addition to the canister and baggie of cocaine, the officers also confiscated the floor mat from the passenger side of the vehicle.

ISSUE

Whether the evidence seized by the officers from defendant’s vehicle was the product of an unlawful detention, arrest, search and seizure.

STANDARD OF REVIEW

The Commonwealth shall have the burden of going forward with evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. Pa.R.Crim.P. 581(H).

DISCUSSION

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the “right of each individual to be let alone.” Schneckloth v. Bustamonte, 412 U.S. 218, 236, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Blair, 394 Pa. Super. 207, 214, 575 A.2d 593, 596(1990).

However, not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Fourth Amendment to the United States Constitution. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Douglass, 372 Pa. Super. 227, 238, 539 A.2d 412, 417 (1988).

In this case, the Commonwealth asserts that the officers stopped and briefly detained defendant based on reasonable suspicion that criminal activity was afoot.

The officers were patrolling an area known for drug activity when they observed defendant’s parked vehicle in the public parking lot.

“The police are permitted to stop and briefly detain citizens whenever they have a reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot.” Commonwealth v. Allen, 555 Pa. 522, 527, 725 A.2d 737, 740 (1999). See also, Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S.Ct. 1868, 1880, 1884, 20 L.Ed.2d 889 (1968); Commonwealth v. Melendez, 544 Pa. 323, 328, 676 A.2d 226, 228 (1996); Commonwealth v. Hicks, 434 Pa. 153, 160, 253 A.2d 276, 280 (1969).

“There are three types of interactions between police and the citizenry.” Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa. Super. 2003). See also, Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super. 2000).

Interaction between citizens and police officers are classified as a “mere encounter,” an “investigative detention,” or a “custodial detention.” Each requires a different level of justification depending upon the nature of the interaction and whether or not the citizen is detained.

“A ‘mere encounter ’ can be any formal or informal interaction between an officer and a citizen, but will normally be an inquiry by the officer of a citizen. The hallmark of this interaction is that it carries no official compulsion to stop or respond.” Stevenson, 832 A.2d at 1127. (emphasis added)

“[A]n ‘investigative detention,’ by implication, carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest, and does not possess the coercive conditions consistent with a formal arrest.” Stevenson at 1127. (emphasis added) This interaction has elements of official compulsion and therefore it requires “reasonable suspicion” of unlawful activity.

“[A] custodial detention occurs when the nature, duration and conditions of an investigative detention become so coercive as to be, practically speaking, the functional equivalent of an arrest.” Id. (emphasis added)

In the present case, the parking lot in which defendant had his vehicle parked was used during daylight hours for a doctor’s office. However, Officer Arbaugh acknowledged that after hours, the lot was used for parking for the bar across the street.

For this reason, when the officers spotted defendant, he was parked legally in a place that he had a right to be. Approaching the defendant at this point rises only to the level of a “mere encounter” whereby police could approach and inquire of defendant his intentions without reasonable suspicion.

Because it was a mere encounter, defendant was not obligated to stay or respond. However, rather than proceed with an inquiry, the court finds that the officers elevated the encounter to an “investigative detention” when they opened the car doors and blocked defendant and his passenger inside the vehicle.

The Pennsylvania Supreme Court has held, “There is no clear formula for determining whether an interaction constitutes a mere encounter or an investigative detention, but we are guided by the question of whether a reasonable person, based on the totality of the circumstances, would believe he is free to leave.” Commonwealth v. Bennett, 827 A.2d 469, 478 (Pa. Super. 2003). See also, Commonwealth v. Reid, 571 Pa. 1, 27, 811 A.2d 530, 545 (2002).

In evaluating the totality of the circumstances, the court takes into consideration whether, by means of physical force or show of authority, the citizen-subject’s movement has in some way been restrained. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877 (1980).

Other factors to consider when making this determination include “the nature, length and location of the detention; whether the suspect was transported against his or her will, how far and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.” Bennett, 827 A.2d at 478.

The court finds the interaction between the officers and defendant constituted an investigative detention based on the fact that the officers opened the vehicle doors and blocked defendant inside. Defendant could not have reasonably believed he was free to leave. Because defendant was not free to leave at this point, what may have started out as a mere encounter then became an investigative stop.

Since this interaction was an investigative detention, the officers were required to have reasonable suspicion for such a stop. The court finds there was no reasonable suspicion because the officers saw only a legally parked car in a public lot with two passengers moving inside. Just because passengers are sitting in a parked vehicle does not in and of itself induce a reasonable suspicion that they are engaged in criminal activity. Without reasonable suspicion, the defendant was under no official compulsion to stay and talk with the officers. However, the defendant did not have the choice of whether he wanted to comply with the officers’ inquiries because the officers opened the car doors and physically blocked the defendant and his passenger inside the vehicle.

The officers claim that they had reasonable suspicion to validate the detention based on the area’s reputation for drug trafficking and movement inside the vehicle.

“The question of whether reasonable suspicion existed at the time of an investigatory detention must be answered by examining the totality of the circumstances to determine whether the officer who initiated the stop had a ‘particularized and objective basis ’ for suspecting the individual stopped.” Commonwealth v. Reppert, 814 A.2d 1196, 1203-1204 (Pa. Super. 2002). (emphasis in original) “Thus, to establish grounds for reasonable suspicion, the officer must articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.” Reppert, 814 A.2d at 1204. See also, Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 677 (1999).

“Although a police officer’s knowledge and length of experience weigh heavily in determining whether reasonable suspicion existed, our courts remain mindful that the officer’s judgment is necessarily colored by his or her primary involvement in ‘the often competitive enterprise of ferreting out crime.’ ” Reppert at 1204. See also, In re D.E.M., 727 A.2d 570, 578 n.19 (Pa. Super. 1999) (quoting Terry, 392 U.S. at 11-12, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

“Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely whether ‘the facts available to the officer at the moment of the [intrusion] warrant a man of reasonable caution in the belief that the action taken was appropriate.’ ” Id. (citing Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1156 (2000)).

“This inquiry will not be satisfied by an officer’s hunch or unparticularized suspicion. ” Id. (emphasis in original) See Commonwealth v. Arch, 439 Pa. Super. 606, 612, 654 A.2d 1141, 1144(1995).

Here, the officers were patrolling the streets in their police cruiser when they observed defendant’s parked vehicle. The vehicle was legally parked in a public parking lot. Although the area had a reputation for drug trafficking, a parked car in a public parking lot with passengers moving inside does not reasonably lead one to conclude that criminal activity is necessarily afoot.

Factors to be considered in forming a basis for reasonable suspicion include tips, informant reliability, time, location, and suspicious activity, including flight. See Commonwealth v. Lynch, 773 A.2d 1240, 1244 (Pa. Super. 2001). See also, Commonwealth v. Freeman, 563 Pa. 82, 90, 757 A.2d 903, 908 (2000) (finding “nervous, evasive behavior such as flight is a pertinent factor in determining reasonable suspicion”); Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153 (2000) (stating that the expectation of criminal activity in a given area and nervous or evasive behavior are factors to consider); Commonwealth v. Pizarro, 723 A.2d 675, 680 (Pa. Super. 1998) (finding that flight and presence in heavy drug-trafficking areas are factors).

However, “presence in a high crime area alone or flight alone does not form the basis for reasonable suspicion.” Lynch, 773 A.2d at 1244. See also, Commonwealth v. Cook, 558 Pa. 50, 58, 735 A.2d 673, 677 (1999). But, a combination of these factors may be sufficient. Lynch at 1244. See also, Zhahir, 561 Pa. at 553, 751 A.2d at 1157 (noting that suspicious conduct corroborates an anonymous tip); Cook, 558 Pa. at 58-59, 735 A.2d at 677 (stating that circumstances which alone would be insufficient may combine to show reasonable suspicion); Commonwealth v. Cottman, 764 A.2d 595 (Pa. Super. 2000) (finding that the officer’s experience, appellant’s presence in a high crime area, furtive movements, and flight established reasonable suspicion); Pizarro, 723 A.2d at 680 (finding that flight along with presence in heavy drug-trafficking area may demonstrate reasonable suspicion).

In the present case, the officers opened the doors because they saw movement inside a vehicle that was legally parked in an area known for drug trafficking. Officer Luffey saw a white powdery substance only after he had already opened the passenger door. (Tr. at p. 15.) Officer Arbaugh opened the driver door because he saw defendant move his hands in the general direction of his lap. (Tr. at pp. 26-27.) Neither officer saw any weapons or contraband, or anything that could resemble such, nor did the defendant exhibit nervous behavior or attempt to flee. The officers’ only basis for reasonable suspicion to open the doors and detain defendant was based on the fact that passengers were moving inside the vehicle. This is simply not enough to reasonably lead one to conclude that criminal activity is afoot.

Therefore, the court finds that the officers conducted an investigative stop without reasonable suspicion, and the evidence seized as a result shall be suppressed.

ORDER

And now, March 10, 2005, defendant having filed an omnibus pretrial motion in the nature of a motion to suppress, for the reasons set forth in the foregoing opinion, it is ordered, adjudged and decreed that defendant’s motion to suppress be granted, and all evidence obtained after the opening of the defendant’s passenger-side door is hereby suppressed for use at trial.


author: NEWMAN, Member,

text:
    Office of Disciplinary Counsel v. Jones

      Disciplinary Board Docket no. 133 D.B. 2003, 1 D.B. 2004.
    November 29, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

NEWMAN, 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 September 15,2003, Office of Disciplinary Counsel filed a petition for discipline at 133 D.B. 2003 against Floyd Paul Jones, respondent. The petition charged respondent with violations of the Rules of Professional Conduct in four separate matters. On September 26,2003, petitioner filed a petition for emergency temporary suspension with the Supreme Court of Pennsylvania. The court issued a rule to show cause on October 9, 2003. On October 31, 2003, the Supreme Court granted the petition for emergency suspension and suspended respondent until further order of the court. Thereafter, petitioner filed a second petition for discipline at 1 D.B. 2004 on January 7,2004, involving three additional matters, and a motion to consolidate, which was granted by order of the Disciplinary Board on February 27, 2004. Respondent did not file answers to the petitions for discipline.

A disciplinary hearing was held on May 12, 2004, before Hearing Committee 3.08 comprised of Chair Wayne M. Pecht, Esquire, and Members Randall G. Gale, Esquire, and Ronald M. Katzman, Esquire. Respondent did not appear at the hearing.

The Hearing Committee filed a report on August 4, 2004, finding that respondent violated the Rules of Professional Conduct as charged in the petitions and recommending that respondent be disbarred.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of September 27, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at 200 North Third Street, Suite 1400, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Floyd Paul Jones, was bom in 1948 and was admitted to practice law in the Commonwealth of Pennsylvania in 1976. His most current attorney registration address is 158 Bowman Road, Apt. 6, Flanover, PA 17331.

(3) Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(4) Respondent has a prior history of discipline consisting of two informal admonitions administered in 2002.

(5) Petitioner sent copies of the petitions for discipline at 133 D.B. 2003 and 1 D.B. 2004 via first class mail and certified mail to respondent’s last known home registration address and his last known business registration address, pursuant to the requirements of Disciplinary Board Rule §90.1 and Pa.R.D.E. 212.

(6) The petitions for discipline were returned as undeliverable or unable to forward.

(7) Petitioner made good faith attempts to find respondent by contacting the U.S. Post Office, the York County Sheriff’s office, and York County District Attorney’s office, going to respondent’s residence and speaking to respondent’s neighbors.

(8) Respondent has four outstanding warrants issued for his arrest.

Charge 1 — Latchaw Matter

(9) In file number C3-02-311, respondent was charged with violations of Rules of Professional Conduct 1.3, 1.4(a), and 1.4(b) for failing to file a brief on Robert Latchaw’s driver’s license appeal, failing to keep his client informed of the status of his matter, failing to provide information so that his client could make informed decisions about the case, failing to advise his client that his appeal had been lost, failing to return his client’s file and failing to return unearned fees.

(10) Petitioner recommended that respondent receive an informal admonition for his misconduct conditioned upon respondent’s refund of $3,050 fees to his client and return of his client’s file. Reviewing authorities approved the informal admonition and conditions.

(11) On October 30, 2002, an investigator with the Office of Disciplinary Counsel personally served respondent with a letter from Chief Disciplinary Counsel dated October 15,2002, informing him of the informal admonition scheduled for November 8, 2002, and the conditions.

(12) Respondent appeared for his informal admonition on November 8, 2002. However, he was not prepared to pay the restitution and claimed that he could not find Mr. Latchaw’s file.

(13) As a result of respondent’s failure to comply with either condition of the informal admonition, it was rescheduled for December 9,2002.

(14) Respondent appeared for his informal admonition on December 9,2002, without having complied with either condition.

(15) Even though respondent had not satisfied the conditions, Chief Disciplinary Counsel and respondent agreed that the informal admonition would be and was imposed on December 9, 2002. Respondent agreed that he would repay his client in installments.

(16) By letter dated December 9, 2002, Chief Disciplinary Counsel confirmed this agreement.

(17) Respondent failed to pay any of the restitution, nor did he return Mr. Latchaw’s file.

Charge II — Smith Matter

(18) Steven Allen Smith was charged with various criminal charges in Adams County. He was also charged with escape from the Adams County Prison.

(19) On January 17, 2002, Mildred Kline, Melissa Smith and Rosalie Walters, family members of Mr. Smith, retained respondent to defend Mr. Smith against the charges.

(20) Respondent agreed to handle pretrial, trial and sentencing matters for a flat fee of $850.

(21) Even though respondent had not previously represented Mr. Smith, respondent did not communicate the basis or rate of his fees in writing within a reasonable time after beginning the representation.

(22) Respondent received payment in full of his fee by January 25, 2002.

(23) On February 4,2002, respondent represented Mr. Smith at the preliminary hearing. One charge was dropped and the rest were bound over for trial.

(24) Respondent appeared at the arraignment of Mr. Smith’s escape charge on July 31, 2002. Mr. Smith pleaded not guilty and trial was scheduled for September 23, 2002.

(25) The arraignment for the other charges was rescheduled for September 20,2002, at respondent’s request.

(26) Mr. Smith’s family members attempted to contact respondent on various occasions, but were not able to do so, and, on one occasion when Ms. Kline called, she got a recording that respondent’s telephone had been disconnected.

(27) Rosalie Walters attempted to call respondent approximately 20 times between August and September 2002 and left messages, which were never returned.

(28) Several family members went to see respondent in person at his office and were never able to contact him at that location.

(29) By letter dated September 18,2002, Mildred Kline notified respondent that his services were no longer needed. She requested a refund of unearned fees no later than October 3, 2002.

(30) Respondent failed to respond to Ms. Kline’s letter and failed to provide an accounting or a refund of unearned fees.

(31) On December 17,2002, Rosalie Walters sued respondent for a refund of fees. Respondent failed to appear in court on January 21, 2003, and the case was rescheduled for January 28, 2003.

(32) On January 28,2003, a default judgment of $500 plus costs of $56 was entered against respondent. He failed to pay that judgment.

Charge III — Stables Matter

(33) On October 9, 2002, Sheila M. Stables called respondent’s office regarding her son’s criminal case in York County and left a message on respondent’s answering machine.

(34) On October 10, 2002, a woman claiming to be respondent’s secretary called Ms. Stables and informed her that respondent was going to the York County Prison on October 11, 2002, and that respondent would talk to Ms. Stables’ son if she paid $50. The secretary advised Ms. Stables to bring the money to respondent’s home.

(35) Ms. Stables personally delivered a $50 money order to respondent’s home address and gave the money to respondent’s secretary. The money order was cashed on October 17, 2002.

(36) On October 11,2002, Ms. Stables called respondent’s home to ascertain what respondent had learned from the meeting with Ms. Stables’ son.

(37) Respondent did not meet with Ms. Stables’ son.

(38) Ms. Stables called respondent’s office and home at least three times following the October 11, 2002 call and was unable to speak to respondent.

(39) On October 17, 2002, Ms. Stables spoke to respondent’s secretary and was informed that respondent was going to York County Prison the next day and Ms. Stables’ son was first on the list to visit.

(40) At no time did respondent meet with Ms. Stables’ son.

(41) During the week following the October 17,2002 call, Ms. Stables called respondent’s home and office at least eight times to check on the status of her son’s case.

(42) On October 28,2002, Ms. Stables’ son informed her that he had an upcoming court appearance. Ms. Stables called respondent and left an urgent message. Respondent did not return her telephone call.

(43) Over the next several days, Ms. Stables called respondent at least once a day and left a message each time.

(44) On October 31, 2002, Ms. Stables’ son entered a guilty plea in his case. Following her son’s plea, Ms. Stables called respondent’s office and left a message requesting a refund of the $50.

(45) By certified letter dated October 31, 2002, Ms. Stables requested that respondent send her a refund. This letter was returned as unclaimed.

(46) Respondent has failed to refund the $50 to Ms. Stables.

Charge IV — ODC Matter

(47) On May 7,2002, Tracy L. Jones filed a complaint for spousal support against respondent in the Court of Common Pleas of York County Domestic Relations division.

(48) On May 21, 2002, Judge John S. Kennedy dismissed the complaint without prejudice due to the fact that Ms. Jones submitted a letter stating that the parties had reached a private agreement.

(49) On September 5, 2002, Ms. Jones again filed a complaint for spousal support against respondent.

(50) On December 9, 2002, Judge Kennedy ordered respondent to pay $840 a month for spousal support plus $50 in arrears. He was also ordered to pay $2,616 in arrears, due immediately.

(51) On February 11, 2003, respondent was ordered to appear in person on March 10, 2003, as a result of his willful failure to obey the order of December 9, 2002.

(52) Respondent was found to be in contempt of court for failure to make regular and timely support payments.

(53) Respondent was ordered to report all status changes to Domestic Relations, pursuant to the court order.

(54) Respondent was personally served with documents relating to the contempt, but refused to sign for service.

(5 5) A compliance hearing was held on April 16,2003.

(56) Respondent declared in open court that he would not pay pursuant to the support order. The Honorable John W. Thompson Jr. sentenced respondent to serve six months in prison for failure to make timely support payments. The court set as a purge condition that respondent be given an opportunity to work as an out-mate for 120 days or pay a cash purge of $2,500.

(57) On June 6,2003, respondent paid the cash purge.

Charge V — Knaub Matter

(58) On July 21, 2003, Deborah Knaub telephoned respondent’s office to arrange for him to consult with her son, who was incarcerated at York County Prison on pending criminal charges.

(59) Respondent’s secretary advised Ms. Knaub to bring $100 to the York County Courthouse the next day and respondent would meet with Ms. Knaub.

(60) Ms. Knaub met with respondent and his secretary and gave him $100 to go to the prison and consult with her son, Bradley Markle.

(61) Respondent advised Ms. Knaub that he would visit her son on either July 24 or 25, 2003.

(62) Respondent failed to go to the prison and see Bradley Markle,

(63) Ms. Knaub telephoned respondent at least 40 times to find out the reason why he did not see her son.

(64) Respondent failed to return any of Ms. Knaub’s messages.

(65) Ms. Knaub went to respondent’s office and left a note for him.

(66) Respondent failed to respond to that message.

(67) Ms. Knaub subsequently received a message telling her that respondent had been evicted from his law office.

(68) Respondent failed to ever consult with Bradley Markle or contact Ms. Knaub.

Charge VI — Wilson Matter

(69) Lisa Wilson retained respondent to represent her boyfriend, Keith Beard, in a child custody matter.

(70) Respondent agreed to write a letter on behalf of Mr. Beard to his ex-wife, for a fee of $50.

(71) Ms. Wilson paid respondent $50 and received a receipt.

(72) Ms. Wilson also retained respondent to represent her at a preliminary hearing on a theft charge.

(73) Ms. Wilson paid respondent $50 and agreed to pay an additional $150 on the day of the preliminary hearing, which was June 20,2003.

(74) Respondent failed to appear at the preliminary hearing.

(75) Ms. Wilson went to respondent’s office that same day to give respondent a check for $150, and to inform him that the preliminary hearing was rescheduled for August 8, 2003.

(76) Respondent failed to write the letter for Mr. Beard.

(77) Since respondent had not performed any of the legal work for Ms. Wilson or Mr. Beard, she requested that he return the $250. Respondent agreed to do so.

(78) Respondent failed to return Ms. Wilson’s money.

Charge VII — Martinez Matter

(79) In May 2003, Rafael Martinez retained respondent to collect a $490 unpaid bill for car repairs.

(80) Mr. Martinez paid respondent $50 cash to write a letter to the delinquent customer.

(81) Respondent failed to write the letter.

(82) Around the same time, Mr. Martinez had outstanding fines and court costs owed to the York County Clerk of Courts as a result of his criminal convictions in the early 1980s.

(83) Mr. Martinez asked respondent for assistance in the process of paying off the fines and costs.

(84) On May 3, 2003, respondent met with Mr. Martinez and told him to write a check payable to him in the amount of $1,970. This represented the amount in fines and costs and approximately $100 as a fee for respondent taking the check to the courthouse.

(85) Respondent told Mr. Martinez that the court would not accept a check drawn against his business.

(86) Mr. Martinez issued a check payable to respondent in the amount of $1,970.

(87) Following receipt of the check, respondent cashed it but failed to pay the fines and court costs.

(88) Respondent retained the funds.

(89) Approximately two weeks after issuing the check, Mr. Martinez attempted to contact respondent at his North Adams Street office.

(90) Mr. Martinez was unable to contact respondent.

III. CONCLUSIONS OF LAW

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

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

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

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

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

(5) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third party has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to a 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.

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

(7) R.P.C. 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.

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

(9) Pa.R.D.E. 203(b)(3) — Willful violation of any other provision of the Enforcement Rules shall be grounds for discipline.

(10) Pa.R.D.E. 204(b) — Failure to comply with a condition attached to an informal admonition shall be grounds for reconsideration of the matter and prosecution of formal charges.

IV. DISCUSSION

This matter is before the Disciplinary Board on two petitions for discipline charging respondent with multiple violations of the ethical rules in six separate client matters and in a contempt proceeding before the York County Court of Common Pleas. Respondent has not contested any of the charges against him and did not appear for either the pre-hearing conference or the disciplinary hearing. The record shows that respondent received proper notice of the petitions for discipline and proper notice of the pre-hearing conference and disciplinary hearing.

A brief summary of respondent’s misconduct demonstrates that he converted funds in the amount of $1,970 belonging to Mr. Martinez and failed to refund unearned fees to five other clients. Respondent made a misrepresentation to Mr. Martinez in order to induce him to write a check payable to respondent. In each of these cases, respondent was paid to handle the representation and utterly failed to take any action on behalf of his clients. Respondent received an informal admonition in March 2002 and an informal admonition in December 2002 as a result of neglect and lack of communication with respect to other clients. With regard to the informal admonition administered in December 2002, although Chief Disciplinary Counsel imposed the discipline, respondent failed to comply with his obligation to refund unearned fees to his client, Mr. Latchaw. His failure to comply with this condition resulted in formal charges brought in that matter, which is discussed in the above findings of fact.

Respondent has neglected personal obligations, as well as professional ones. He owes over $10,000 in support arrears and was found in contempt of court for his failure to make timely and regular support payments pursuant to court order. Respondent has been evicted from his law office and failed to pay a judgment to his landlord in the amount of $1,275. Respondent’s current whereabouts are unknown. He has abandoned his law practice and never notified his clients that he was leaving. At the time he disappeared, he had 11 cases on the York County criminal docket. Respondent has four arrest warrants issued for him: two warrants were issued as a result of respondent passing six bad checks, a third warrant was issued for respondent’s failure to pay the $10,000 in support and a fourth warrant was issued for stealing $2,236 from his client by failing to make required disposition of those funds. Respondent was placed on emergency temporary suspension by the Supreme Court in order to protect the public.

The Disciplinary Board has considered cases in which a lawyer has committed multiple acts of misconduct, then abandoned his or her practice and disappeared. In the recent matter of In re Roe, the attorney failed to preserve client funds and converted them to his own use. He abandoned his practice without attending to any details of closing his office, such as notifying his clients and the court, refunding unearned fees and withdrawing his appearances. The board found that such irresponsible behavior rendered the attorney unfit to practice law. This attorney was disbarred. In another matter, In re Anonymous No. 75 D.B. 94 and 7 D.B. 95, 34 D.&C.4th 32 (1996), an attorney was convicted of bad check charges, then disappeared, leaving behind clients who had paid for her representation which was not forthcoming. The Supreme Court disbarred her. Lawyers who misappropriated entrusted funds and then disappeared were disbarred in the matters of In re Anonymous No. 34 D.B. 91, 15 D.&C.4th 495 (1992), and In re Anonymous No. 30 D.B. 87, 49 D.&C.3d 1 (1988). A lawyer was disbarred after he walked away from his practice, failed to complete work or refund fees he received from five clients, and failed to participate in the disciplinary process. In re Anonymous No. 101 D.B. 92, 23 D.&C.4th 168 (1994).

There is no doubt that respondent’s misconduct warrants disbarment. He has ill-served his clients in every way possible. His act of abandoning his practice shows a flagrant disregard for his clients and the court system. His nonappearance at his disciplinary hearing demonstrates a lack of interest in his law license. The record is abundantly clear that respondent is unfit to engage in the practice of law.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Floyd Paul Jones, be disbarred from the practice of law.

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 Nordenberg did not participate in the September 27, 2004 adjudication.

ORDER

And now, March 11, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated November 29,2004, it is hereby ordered that Floyd Paul Jones be and he is disbarred from the bar of this Commonwealth, and he shall comply with all the provisions of Rule 217 Pa.R.D.E.

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