author: MUNLEY,

text:
    Murphree v. Barakat
    February 28, 1990

      Joseph F. Walsh, for plaintiff.

      Thomas B. Helbig, for defendant.
   MUNLEY,

We have for consideration and disposition defendants’, Adel R. Barakat, M.D. and Cesare, Barakat and Metzger, P.C, motion for summary judgment in this medical malpractice action.

The present action was instituted as a result of the medical care and treatment provided to plaintiff, Ellen Murphree, by defendants from February 1986 through September 1986 and specifically, an arthroscopic knee procedure performed at Moses Taylor Hospital in May 1986. Plaintiff maintains that the defendant was treating her for a knee injury she incurred in January 1986, which defendants diagnosed as “pulled muscles” and prescribed physical therapy. Plaintiff contends that the defendant’s diagnosis was incorrect and the prescribed treatment did not improve her condition but further complicated her injury.

During the course of discovery, counsel for defendant served on plaintiff expert witness interrogatories which requested, inter alia, the identities and reports of all expert witnesses on behalf of plaintiff. See Pa.R.C.P. 4003.5. No expert witnesses were identified, nor expert reports provided to defendant. As a consequence, Judge O’Malley entered an order, dated October 10, 1989, requiring that “plaintiff shall provide to defendant’s counsel within 60 days the identity and reports of all expert witnesses or shall be precluded from presenting any expert witness testimony at the time of trial.” See order no. 88 Civil 4193. As a practical matter, litigants in most instances encounter little difficulty in obtaining expert witnesses. Counsel did not comply with the order and offered no extenuating circumstances for failure to comply with said order. Thus, this sanction was appropriate and plaintiff is now precluded from offering any expert witness testimony at the time of trial. McSloy v. Jeanes Hospital, 376 Pa. Super. 595, 546 A.2d 684 (1988).

Defendant posits that plaintiff must present expert testimony to meet the burden of proving that defendant’s alleged committed negligence was the cause of her condition worsening. Defendants argue that expert testimony is required to establish the standard of reasonable medical care. Lira v. Albert Einstein Medical Center, 384 Pa. Super. 503, 559 A.2d 550 (1989). It is defendant’s contention that plaintiff’s deposition and/or subsequent testimony at trial alone fails to support plaintiffs claim of medical negligence. Therefore, plaintiffs lack of expert testimony to sufficiently establish negligence and causation results in no genuine issue of material fact.

In opposition to this motion, plaintiff argues that her deposition and subsequent testimony at trial establishes that plaintiffs condition was further aggravated by defendant’s negligence and when these statements are considered in a light most favorable to plaintiff, it must be considered that there are existent issues of material fact. It is her contention that “she does not need anyone else to testify to know that it should not have happened.”

According to Pa.R.C.P. 1035(b), a motion for summary judgment may properly be. granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The well settled purpose of the summary judgment procedure is to dispense with an unnecessary trial where no genuine issue of triable material fact exists. Esbrandt v. Provident Life and Accident Insurance Company, 559 F.Supp. 23 (E.D. Pa. 1983). Based on the record before us, we must determine whether there are any issues of material fact regarding the liability of the defendants. The parties seeking to avoid the entry of summary judgment may not rest upon the averments contained in their pleadings. They are required to show by deposition, answer to interrogatories, admissions or affidavits, that there is a genuine issue for trial. Washington Federal Savings and Loan v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986). An entry of summary judgment may be granted only in cases where the right is free and clear from doubt. Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 507 A.2d 326 (1986). But, it is also clear that in resisting a motion for summary judgment, a party cannot successfully rely upon mere assertions, con-clusory allegations or suspicions. See Pa.R.C.P. 1035(b).

. Negligence law in general presupposes some uniform. standard of behavior by which a defendant’s conduct is to be evaluated. W. Prosser and P. Keeton, Law of Torts 173 (5th ed. 1984). The fundamental rule of law in negligence cases is that plaintiff must prove by a preponderance of the evidence that defendants were negligent and that their negligence was the proximate cause of plaintiff’s injury. Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763 (1989). In medical malpractice litigation, negligence has been defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” Restatement (Second) of Torts §282 (1965). As members of a learned profession, physicians have been expected to possess and exercise skill and knowledge in the practice of their professions beyond that of ordinary individuals. As to matters involving professional skills and knowledge, the conduct of such defendants has been largely evaluated in terms of professional standards determined by the profession. Lira, supra.

The burden of proof in a malpractice action is upon plaintiff to prove either (1) that the physician or surgeon did not possess and employ the required skill and knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like circumstances; and that the injury complained of either (1) resulted from the failure on the part of the physician or surgeon to possess and employ the required amount of skill and knowledge or (2) resulted from his failure to exercise care and judgment of a reasonable man in like circumstances. Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959); Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). In the landmark case Robinson v. Wirts, 387 Pa. 291, 127 A.2d 706 (1956), Chief Justice Stem stated:

“[N]o presumption or inference of negligence arises merely because the medical care or surgical operation terminated in an unfortunate result which might have occurred even through proper care and skill had been exercised and where the common knowledge or experience of laymen is not sufficient to warrant their passing of judgment. In such cases, the doctrine of res ipsa loquitur or exclusive control may not be invoked and expert testimony in support of plaintiffs claim is an indispensable requisite to establish a right of action.”

The requirement of expert testimony is based on the fact that laymen are normally not capable of evaluating the quality of care exercised by professional medical physicians without expert guidance. Thus, except in situations in which the alleged negligence is comprehensible to laymen, the existence of negligent malpractice usually must be proven by expert testimony. Senesac v. Association in Ob-Gyn, 141 Vt. 310, 449 A.2d 900 (1982). The “common knowledge” doctrine is the most important exception to the expert witness requirement to evaluate the defendant’s conduct and arrive at the appropriate standard of care. Brennan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980). See generally, Restatement (Second) of Torts §323 B(d). The matter under investigation must be so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even non-professional persons. Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 45, 437 A.2d 1134 (1981).

Generally speaking, physicians are criticized and involved in litigation more often in situations where they immediately prescribe surgery for an injury. Conversely, in the instant case, defendant’s election to initially prescribe non-invasive diagnostic tests and conservative therapy before performing arthroscopic surgery on plaintiff has brought them to court today. It is well-established that a physician does not incur liability merely by electing to pursue one of several recognized courses of treatment. Downer v. Veilleux, 322 A.2d 82 (Me. 1974). The decision to use one method of treatment, where there is reasonable doubt as to the proper course, is not in and of itself a breach of duty. “The test for malpractice is to show the professional conduct of defendants fell below the standards of reasonable medical practice.” Lira, supra. The question presented to this court today is whether plaintiff can prove her case with a reasonable degree of certainty. This is not a case where there is no doubt of alleged negligence. Rather, this is a case where the jury may need the guidance of an expert to determine if negligence exists. Specifically, to determine just what is the optimal time to perform arthroscopic surgery subsequent to a knee injury. Did defendant’s choice of conservative treatment further complicate plaintiff’s injury?

We acknowledge that expert testimony should no longer be a per se requirement in proof of negligence in all cases of alleged medical malpractice. In addition, we note that a determination of whether the optimal time for conservative; ^igf\ostic therapy was more or less than three months constitutes negligence is a question for the fact finder. But it is our belief that the fact finder cannot answer these questions without the guidance of an expert. Plaintiff posits that her allegations of defendant’s negligence are so patent that they’ are common knowledge for which no expert testimony is necessary because her own testimony will clearly establish the negligent unreasonableness of defendant’s conduct. To establish a case of professional negligence, a patient is required to prove by competent evidence that the conduct of the physicians fell below standards of reasonable medical practices and that her injuries were caused by the physicians’ failuré to provide such medical care. Corbett v. Weisband, 380 Pa. Super. 282, 551 A.2d 1059 (1988).

It is our opinion that plaintiff’s testimony cannot establish for the fact finder negligence on the part of defendants with a degree of certainty. The lay juror is not equipped to decide whether a course of diagnosis and treatment was negligent based on the plaintiff’s testimony. Plaintiff’s testimony will not be conclusive, the lay juror will still need the benefit of expert testimony to determine within a reasonable degree of certainty the existence of any viable alternative to the diagnosis and treatment prescribed by defendants. It is logical and common sense, that this matter presently before the courts is not within the common knowledge of a lay juror. Certain questions cannot be determined intelligently merely from the deductions made and inferences drawn from practical experience and common sense. On such issues, the testimony of one possessing special knowledge or skill is required in order to arrive at an intelligent conclusion. 31 Am. Jur. 2d, Expert and Opinion Evidence §16 (1967). Plaintiff’s testimony cannot establish the applicable professional standards and that defendant’s alleged conduct departed from them. In these matters where laymen have no knowledge or training, the court and jury are dependent on the explanations and opinions of experts. Dion v. Graduate Hospital of University of Pa., 360 Pa. Super. 416, 520 A.2d 876 (1987). The law requires not merely conjecture, but rather sufficient data from which the question of negligence can be assessed with reasonable certainty. Unsupported assertions of conclusory accusations cannot create genuine issues of material fact to preclude entry of summary judgment. Pa.R.C.P. 1035(b).

Persuasive, credible arguments were made on both sides of this question, but absent an applicable exception, the law requires expert testimony to establish the appropriate standard of care and its violation. Expert testimony is usually also necessary to establish a causal connection between the alleged negligence and the injury.

Although questions of negligence and causation are generally for the jury, the question of sufficiency of the evidence is clearly within the trial judge’s discretion. Where insufficient evidence exists to justify an inference of negligence and causation, the trial judge may properly grant judgment in favor of the party against whom liability is sought. Caldwell v. Commonwealth of Pennsylvania, 120 Pa. Commw. 358, 548 A.2d 1284 (1988); Farnese v. Southeastern Pa. Transportation Authority, 338 Pa. Super. 130, 487 A.2d 887 (1985). Absent the explicit testimony of a medical expert, the fact finder cannot be permitted to make a determination, as this would amount to mere speculation. The record is incomplete as to causation and liability thus a conclusion that defendants were negligent cannot reasonably or properly be reached by the jury.

We have no difficulty in declaring defendants’ motion for summary judgment is granted. The fact finder cannot be allowed to speculate, the existing case law dictates the absolute necessity of expert testimony in a medical malpractice case if there are questions as to the cause of the patients subsequent complications which are beyond the common knowledge of the average lay person. Mitzelfelt v. Kamrin, 379 Pa. Super. 121, 549 A.2d 935 (1988).

After a thorough review of the record, it is the opinion of this court that the general exception to the expert requirement is inapplicable to the facts of this case as it is not within the general knowledge of the jury to answer these fact questions. Therefore, in the absence of a triable issue of material fact, the motion for summary judgment must be granted.

ORDER

Now, February 28, 1990, defendant’s motion for summary judgment is granted.


source: Caselaw Access Project

author: HESS, J.,

license: Public Domain

text:
    Frampton v. Pennsylvania Power and Light Company

      January 8, 1990

      Barry L. Gross, for plaintiff.

      Charles E. Wasilefski, for defendant.
   HESS, J.,

This action, commenced by June L. Frampton, administratrix of the estate of Donald H. Frampton Sr., stems from an incident which occurred on December 8, 1988, resulting in the death of Donald H. Frampton Sr. The matter is presently before the court on defendant’s preliminary objection to plaintiffs complaint. As recited in the complaint, plaintiffs decedent was engaged in duties arising from his employment as a sheet metal worker, on December 8, 1988, on a site located at 300 Salem Church Road, Hampden Township. Plaintiffs decedent and several of his coworkers were attempting to maneuver a scaffolding appáratus when it came into contact with a high-voltage overhead electric power line owned and operated by defendant, Pennsylvania Power and Light. The resultant passing of electrical current through plaintiffs decedent’s body resulted in his death.

DISCUSSION

Counts two and four of the complaint, which are the focus of defendant’s demurrer, sound in strict liability under the Restatement (Second) of Torts, §402A. Defendant seeks to have these portions of the complaint dismissed. The Restatement (Second) of Torts §402A provides:

“§402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Defendant counters that this section of the Restatement is inapplicable to the instant matter because electricity, as involved here, is not a product within the definition of section 402A. We agree.

The Superior Court dealt squarely with the issue of whether electricity is a product, within the meaning of section 402A, in Schriner v. Pennsylvania Power & Light Co., 348 Pa. Super. 177, 501 A.2d 1128 (1985). In Schriner, plaintiffs brought suit against PP&L for injury to dairy cattle resulting from “stray voltage” from milking equipment electrified by the power company. In applying section 402A, the Superior Court noted that, in addition to finding that electricity was a product, it was essential to the strict liability claim that plaintiff establish a sale of the electricity. Therefore, prior to the point at which electricity is sold to the customer, an action based upon section 402A strict liability cannot succeed. Id.

The “sale” of electricity, of course, does not occur in the traditional exchange of goods for currency. Its entry into the stream of commerce has been deemed to occur, generally, when the electricity leaves the transmission lines and passes through the customer’s meter. Schriner at 188, 501 A.2d at 1133. In summation, the Superior Court stated: “[Wjhile still in the distribution system, electricity is a service, not a product; electricity only becomes a product, for purposes of strict liability, once it passes through the customer’s meter and into the stream of commerce.” Schriner at 189, 501 A.2d at 1134. Since the complaint alleges that the scaffolding apparatus came into contact with high voltage overhead power lines, at which point the electricity had not been sold, the claim based upon section 402A strict liability must fail.

Familiar with the Schriner decision, plaintiff argues that the principles set forth therein are inapplicable to the instant matter. Specifically, he argues that defendant’s electric poles and wires, not defendant’s electricity, are the defective products as to which strict liability is to be applied. Plaintiff contends that, in Schriner, the Superior Court did not address the situation where, as in the instant action, the materials utilized to conduct the electricity are claimed to be defective.

According to plaintiff the question then becomes whether PP&L can be held strictly liable for the defective condition of its poles and wires under 402A. We believe the answer to this question is clearly “no,” and return to the Schriner decision for authority on the matter. As our Superior Court stated:

“The cases in which liability for electricity is restricted to the traditional principles of negligence . . . confront only the situation where the electricity is being transmitted over high-tension wires for ultimate availability to the consuming public. The transmission of electricity, as well as the transmission of other similar type consumable goods, is a service being rendered by the utility to prospective purchasers. While being transmitted, liability is controlled by standards of negligence and not strict liability, since any injury sustained as a result thereof is causally connected only to the transmission or transportation service and is unrelated to the ultimate sale of the product.” Schriner at 188-9, 501 A.2d at 1134, quoting Aversa v. Public Service Electric and Gas Company, 186 N.J. Super. 130, 451 A.2d 976 (1982). Clearly, an allegation with respect to the defective maintenance of poles and wires is one which concerns the system by which electricity is transmitted or distributed. Liability, therefore, is controlled by standards of negligence as opposed to strict liability. Thus, the claim based upon section 402A must fail.

ORDER

And now, January 8, 1990, the demurrer of defendant to counts II and IV of plaintiffs complaint, sounding in strict liability under the Restatement (Second) of Torts §402A, is sustained.


author: GILBERT Member,

text:
    In Anonymous No. 121 D.B. 88
    Disciplinary Board Docket no. 121 D.B. 88.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

November 20, 1989

GILBERT Member,

Pursuant to rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations regarding the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

Respondent was admitted to practice law in the Commonwealth of Pennsylvania on December 11, 1984. His office was located at [ ]. Respondent presently is under suspension from the practice of law by order of the Supreme Court of Pennsylvania and maintains no office for the practice of law. Respondent works as a legal assistant with [ ] County Legal Aid.

Upon respondent’s voluntary petition, the Supreme Court of Pennsylvania suspended respondent from the practice of law by order dated November 18, 1988 and referred the matter to the Disciplinary Board pursuant to rule 214(f), Pa.R.D.E.

The Supreme Court order arose from respondent’s plea of guilty in the U.S. Federal Court for the [ ] District of Pennsylvania to one count of obstruction of justice in violation of Title 18, U.S.C. §1503.

On January 3, 1989, the Honorable [A], Judge of the U.S. District Court for the [ ] District of Pennsylvania, sentenced the respondent to probation for a period of two years, with the direction that respondent perform 150 hours of community service; that he comply with certain specified conditions of probation; and that he pay a special assessment of $50.

On February 13, 1989, the Office of Disciplinary Counsel filed a petition for discipline charging that respondent assisted another lawyer in advising a grand jury witness to destroy records covered by the grand jury subpoena, to create false records and to testify falsely in regard to the records.

On April 6, 1989, the matter was referred to Hearing Committee [ ] consisting of [ ]. A hearing was held July 14, 1989, in which the committee recommended that respondent be suspended for a period beginning June 9, 1988 (the date respondent claims to have voluntarily ceased the practice of law) and ending January 3, 1991 (the date of the expiration of respondent’s probation imposed by Judge [A]). The committee also recommended that respondent’s suspension be lifted earlier if respondent is released from probation prior to the stated date of January 3, 1991. It is the intention of the committee that respondent’s suspension be coterminous with his federal probation.

On September 21, 1989, respondent through counsel filed a brief opposing exceptions in which they advocated adopting the hearing committee’s recommendation in its entirety.

Thereafter, the matter was referred to board member [ ] for review and recommendation to the full board. The matter was adjudicated by the board at its scheduled meeting October 24, 1989.

FINDINGS OF FACT

(1) Respondent, a 1984 graduate of [ ] Law School, was admitted to practice before the Supreme Court of the Commonwealth of Pennsylvania on December 11,1984. Shortly before his admission he obtained full-time employment with the law firm of [B] & Associates in [ ]. [B’s] practice was principally personal injury work, but respondent spent approximately 65 percent of his time on criminal matters.

(2) By 1987, respondent had grounds upon which to infer that [B] was possibly engaged in illegal, unethical, and improper activities. Specifically, he found that [B] had padded costs on the settlement sheet of a client whom respondent had referred to the firm for a personal injury matter. Also, through his representation of a secretary in [B’s] office, respondent became aware of fraudulent medical claims filed by another attorney which involved a doctor named [C]. Respondent knew [C] was both a personal friend of [B’s] and a business associate who did claims work with [B].

(3) On October 7, 1987, respondent was directed by [B] to join a meeting among [B], his administrative assistant, and [C] in regard to [C’s] response to. a grand jury subpoena of his records. Respondent was not aware of what occurred prior to his entering the meeting nor did he know [C] was. wearing a microphone which transmitted the conversation to federal investigators.

(4) During the time he participated in the meeting (about 45 minutes out of a two-hour and 25-minute meeting), respondent assisted [B] in advising [C] to conceal and destroy records covered by the grand jury subpoena, to create false records, and to testify before the grand jury falsely with respect to the records.

(5) About two weeks later, respondent received a “target letter” from the U.S. Attorney’s Office advising him he was the target of an investigation by the federal government for possible acts of obstructing justice. Despite respondent’s claim that he knew he had made a mistake in assisting [B] at the October meeting, respondent did nothing about and notified no one of [B’s] illegal and unethical activities until he received the target letter.

(6) Upon receipt of the target letter, he contacted counsel and began his own private investigation of [B’s] activities. By comparing settlement sheets with actual cost cards in [B’s] files, he established that [B] had, in fact, defrauded clients of money otherwise due them.

(7) Respondent turned over to the U.S. Attorney’s Office the evidence against [B] he had obtained and throughout (after receipt of the “target letter”) he cooperated fully with that office. ([B] was subsequently convicted and sentenced to a five-year term in prison. He was subsequently disbarred.)

(8) On June 8, 1988, respondent was charged in the U.S. District Court for the [ ] District of Pennsylvania with one count of obstruction of justice in violation of Title 18, U.S.C. §1503.

(9) Respondent later claimed he voluntarily ceased practicing law the next day (June 9) but there was no evidence presented to support this conclusion. (This is relevant to the subsequent date of his recommended suspension from the practice of law. See “Discussion” to follow).

(10) On June 21, 1988, respondent entered a plea of guilty to one count of obstruction of justice with which he was charged.

(11) In October 1988, and on advice of counsel, respondent voluntarily requested that he be suspended from the practice of law.

(12) On November 18, 1988, by order of the Supreme Court of Pennsylvania, respondent was suspended from the bar of the commonwealth, pursuant to rule 214(d), Pa.R.D.E.

(13) On January 3, 1989, respondent was sentenced by the Honorable [A], judge of the U.S. District Court for the [ ] District of Pennsylvania, to probation for a period of two years, with the direction that he perform 150 hours of community service; that he comply with certain specified conditions of probation; and that he pay a special assessment of $50.

(14) Respondent is currently under suspension and working as a legal assistant with the [ ] County Legal Aid.

(15) At the hearing, six members of the [ ] County bar testified to respondent’s good character and reputation among the legal community. Two witnesses testified to respondent’s public service in a local [ ] Club and a woman testified that respondent has been a “Big Brother” to her son for about three years, has given generously of his time to the boy, who does not live with his father, has taken him on trips, and has been a very good influence on her son.

CONCLUSIONS OF LAW

Respondent has violated the following disciplinary rules:

D.R. 1-102(A)(4) - A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

D.R. 1-102(A)(5) - A lawyer shall not engage in conduct that is prejudicial to the administration of justice.

The board concurs with the hearing committee’s finding that respondent did not violate the following disciplinary rules as alleged in the petition for discipline:

D.R. 1-102(A)(3) - Engaging in illegal conduct involving moral turpitude and

D.R. 1-102(A)(6) - Engaging in conduct that adversely reflects on fitness to practice law.

DISCUSSION

The sole issue before this board is the appropriate measure of discipline to be recommended to the Supreme Court of Pennsylvania.

There can be no question that respondent’s assistance in advising a witness to testify falsely in a court of law involves an abuse of his training and position as a lawyer. Furthermore, respondent’s conduct, which led to his conviction of one count of obstruction of justice, has a serious and detrimental impact upon the public’s confidence in our legal profession and the ability of the legal system to protect the public.

In spite of the fact that the certificate of conviction serves as conclusive evidence of respondent’s guilt, it is our duty to consider the events which surround the criminal charges in order “to weigh the impact of the conviction upon the measure of discipline.” Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982), citing Office of Disciplinary Counsel v. Troback, 477 Pa. 318, 383 A.2d 952 (1978).

Thus, the board recognizes certain mitigating circumstances in this case which in no way excuse respondent’s conduct, but are considered in determining the appropriate discipline. The matter before this board involves a single episode in which respondent, in the words of the judge issuing sentence, made a “grievous error in judgment without any time to think about it,” and that that error was “completely at variance with [his] personality and character.” Since the time of his original suspension, respondent has worked conscientiously as a legal assistant in the [ ] County Legal Aid.

A volume of letters submitted at the time of his sentencing and testimony by character witnesses before the hearing committee, including testimony by six members of the [ ] County Bar, all support the conclusion that the young man is regarded as a caring, ethical individual who made one serious error in judgment.

Respondent has shown remorse for his misconduct, is doing the required hours of community service, is involved in other types of community activity ([ ], [ ] Organization, among others) and from the evidence presented he still has a good reputation in his local community.

The board also recognizes the fact respondent assisted the federal authorities in their investigation, but respondent’s assistance only began after he was made aware of the fact that he was a target of the federal investigation and his own personal reputation was at stake.

The Disciplinary Board takes the position that it is inappropriate to make respondent’s suspension retroactive to June 9, 1988, the day after respondent was indicted and the day respondent claims to have voluntarily ceased the practice of law. Respondent’s claim of voluntarily transferring to inactive status is not supported by the evidence presented at the hearing. More importantly, the Supreme Court of Pennsylvania did not make its earlier suspension retroactive to June 9, 1988. The board also rejects the concept of making the suspension coterminous with the respondent’s federal probation as, in effect, having the disciplinary system of the commonwealth abdicate its responsibilities to adjudicate its own disciplinary cases.

RECOMMENDATION

Bearing-in mind the seriousness of the respondent’s misconduct, yet tempering the sanction in light of his full cooperation with the authorities, his relative youth and inexperience, and his good reputation in the community, the board recommends the respondent be suspended for 2 years and 3 months with the suspension to be dated from November 18, 1988.

ORDER

And now, March 29, 1990, respondent’s petition to reopen record is granted. Upon consideration of the report and recommendations of the Disciplinary Board dated November 20, 1989, it is hereby ordered that [respondent] be and he is suspended from the bar of this commonwealth for a period of two years and three months, effective November 18, 1988, and he shall comply with all the provisions of rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.


author: MANNIX, ].,

text:
    Commonwealth v. Lehman

      Jeffrey L. Giltenboth, for the commonwealth.

      January 29, 1990

      Robert R. Watson, for appellant.
   MANNIX, ].,

This matter came before the court on appeal by Graham E. Lehman from recall of his school bus operating privileges by the Department of Transportation, effective June 9, 1989, pursuant to section 1519 of the Vehicle Code (75 Pa.C.S. §1519). Said recall was based on a physical examination report by Dr. William D. Slemenda which revealed that Mr. Lehman had had a myocardial infarction in December 1988.

At the time set for hearing before this court on August 29, 1989, the commonwealth offered into evidence, as exhibits no. 1 through 6, the records of the Department of Transportation and then rested. Immediately thereafter, on motion of appellant, this court entered an order continuing said hearing to October 24, 1989, to enable the appellant to take the deposition of Mr. Lehman’s family physician, Dr. J.L. Funkhouser, on the matter of his present physical ability to operate a school bus. This was done and at the hearing on October 24, 1989, Dr. Funkhouser’s deposition was admitted.

Following a review of the commonwealth’s exhibits and the deposition of Dr. Funkhouser, wherein Dr. Funkhouser gave his opinion that Mr. Lehman had completely recovered from his cardiovascular condition, this court sustained Mr. Lehman’s appeal by order dated October 25, 1989. The commonwealth timely filed an appeal from said order and, in response to this court’s order of December 21, 1989, filed a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The commonwealth first asserts that this court abused its discretion in continuing the August 29, 1989, hearing to enable the parties to take the deposition of Dr. Funkhouser. However, this court then had before it only the commonwealth’s exhibits, and it was necessary that competent medical evidence be received as to the present effect, if any, of the myocardial infarction on Mr. Lehman’s ability to drive a school bus. The commonwealth made no objection to said continuance. This court was well within its discretion in hearing part of this appeal on August 29, 1989, and the balance on October 24, 1989, after competent medical evidence had been obtained.

The second issue raised by the commonwealth appears to be that an appellant cannot challenge a recall of his school bus operating privileges unless he bases his appeal on section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794) and attacks the validity of the regulation under which his license was recalled. However, any person aggrieved by recall of his operating privileges has a right to appeal said departmental action to the court of common pleas. See 75 Pa.C.S. § 1519(c). Mr. Lehman’s failure to invoke the Rehabilitation Act of 1973 does not preclude this appeal of the department’s recall of his operating privileges.

The commonwealth’s third and final basis for appealing this court’s order of October 25, 1989, to the Commonwealth Court of Pennsylvania is based on 67 Pa. Code §71.3(b)(5), which provides as follows:

“§71.3. Physical examination
“(b) Requirements of physical examination. A person is physically qualified to drive a school bus if the person:
“(5) Has no established medical history or clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency,.or pacemaker insertion.”

The commonwealth’s argument appears to be that, once a person has had a myocardial infarction, he is not and never again will be physically qualified to operate a school bus.

This court believes the instant case falls squarely within the decision of Stober Appeal, 119 Pa. Commw. 156, 546 A.2d 155 (1988), wherein the Commonwealth Court held that the Department of Transportation has the burden of proving that a licensee is incompetent to drive a school bus, and that the mere introduction of a past history of a myocardial infarction is insufficient where the appellant introduces medical evidence that he is presently qualified and competent to drive a school bus. In the instant appeal, Mr. Lehman presented this very evidence through the deposition testimony of Dr. J.L. Funkhouser, and for that reason, Graham E. Lehman’s appeal was properly sustained.

For the foregoing reasons, this court entered its order of October 25, 1989.


author: MUNDY, Chairman,

text:
    In re Anonymous No. 97 D.B. 88 and 20 D.B. 89

      Disciplinary Board Docket No. 97 D.B. 88 and 20 D.B. 89.

    June 15, 1989
   MUNDY, Chairman,

The purpose of this report is to summarize the disciplinary history of respondent, [ ], Esq., particularly docket nos. 97 D.B. 88 and 20 D.B. 89.

HISTORY OF DISCIPLINE

Respondent has a history of discipline which denotes a pattern of client neglect.

In March 1982, respondent received an informal admonition for violation of Disciplinary Rules 1-102(A)(6), (engaging in conduct which adversely reflects on an attorney’s fitness to practice law); 1-102(A)(4), (misrepresentation); 6-101(A)(3), (neglect of a legal matter); and 7-101(A)(l), (intentional failure to seek lawful objectives of a client). In December 1987, respondent received an informal admonition for violation of Disciplinary Rule 6-101(A)(3). Respondent was scheduled to appear before the Disciplinary Board on December 9, 1988 for the purpose of receiving a private reprimand for violation of Disciplinary Rules 6-101(A)(3) (neglect of a legal matter), and 7-101(A)(2), (failure to carry out a contract of employment entered into with his client for professional services). Respondent failed to appear. (Docket no. 97 D.B. 88) Respondent was scheduled to appear before the Disciplinary Board on May 18, 1989 for the purpose of receiving a private reprimand for violation of Disciplinary Rules:

1-102(A)(1) — violating a Disciplinary Rule. (Specifically rule 217(b), Pa.R.D.E., when he failed to promptly notify his clients of his transfer to inactive status and consequent inability to act as an attorney after the effective date of his inactive status);

6-101(A)(3) — neglecting a legal matter;

7-101(A)(l) — fading to seek the lawful objectives of a client through reasonably available means permitted by law and the Disciplinary Rules;

7-101 (A)(2) — failing to carry out a contract of employment entered into with a client for professional services; and violating the following Rules of Professional Conduct:

1.3 — failing to act with reasonable diligence and promptness in representing a client; and

1.4(a) — failing to keep a client informed about the status of a matter and failing to promptly comply with reasonable requests for information.

In December 1987, respondent informed Deputy Chief Disciplinary Counsel, [ ], that he was no longer practicing law. Respondent voluntarily transferred to inactive status as of July 1, 1987. Respondent apparently has no intention to actively practice again. However, respondent never informed either of his clients (discussed below) of his change in status or to retain substitute counsel. Respondent abandoned his clients without regard to their interests and without any attempt to formally withdraw.

Charge I No. 97 D.B. 88

Complaint

(1) This case, involves respondent’s neglect of a legal matter entrusted to his care and his intentional failure to carry out his contract of employment.

(2) In July 1982, respondent was retainéd to represent [A], (complainant) as executrix of her mother’s estate in a civil suit against [B] for injuries which caused the death of complainant’s mother. Respondent took appropriate action on complainant’s behalf until May 1985. Thereafter, respondent took little or no action to reach a satisfactory conclusion of the matter and failed to return any of complainant’s numerous calls concerning the status of her case. Despite the fact that respondent informed opposing counsel that his client would accept a $25,000 settlement and in fact an offer was made on April 27, 1987 by [B’s] insurance carrier, respondent made no attempt to obtain the releases from complainant to finally conclude the matter.

Proceedings

(1) On October 7, 1987, [A], (complainant) filed a complaint with the office of Disciplinary Counsel against [respondent].

(2) On May 23,1988, Assistant Disciplinary Counsel found respondent guilty of violating the following Disciplinary Rules of the Code of Professional Responsibility: D.R. 6-101(A)(3) and D.R. 7-101(A)(2). (See History, supra.)

(3) In consideration of the prior discipline, the Assistant Disciplinary Counsel recommended that respondent receive a private reprimand.

(4) On May 26, 1988, pursuant to rule 206(b)(3), Pa.R.D.E., the Disciplinary Board designated a reviewing hearing committee member and on June 16, 1989, the committee member approved the recommendation by Disciplinary Counsel that respondent receive a private reprimand.

(5) On August 9, 1988, in accordance with rule 208(a)(5), Pa.R.D.E., the Disciplinary Board assigned the matter to a three-member review panel which concurred in the recommendation.

(6) On September 9, 1988, the Disciplinary Board ordered that [respondent] be subjected to a private reprimand by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in rule 204(a)(5) and rule 205(c)(7) of the Pennsylvania Rules of Disciplinary Enforcement.

(7) On September 13, 1988, the secretary to the board notified respondent by certified and regular mail of the Disciplinary Board’s order stated above.

(8) On November 22, 1988, the secretary of the board notified respondent by certified and regular mail that he was directed to appear before the Disciplinary Board on Friday, December 9, 1988 at 11:00 a.m. for the purpose of receiving a private reprimand.

(9) Respondent failed to appear before the Disciplinary Board on December 9, 1988. He did not contact the secretary to the board,, or the District [ ] Office, to explain his absence.

(10) In a letter dated December 22, 1988, Assistant Disciplinary Counsel informed respondent that he was provided with an opportunity of 10 days to explain the reason for his failure to appear for the private reprimand.. Respondent failed to reply.

(11) On February 8, 1989, the Disciplinary Board issued an order and rule to show cause upon consideration of respondent’s neglect or refusal to appear for the purpose of private reprimand which was scheduled for December 9, 1988. A certified copy was sent to respondent who failed to reply.

(12) On March 28, 1989, the Disciplinary Board issued an identical order as stated above. An investigator, in the District [ ] Office, served respondent who failed to reply.

Charge II No. 20 D.B. 89

(1) This case involves respondent’s following misconduct: neglect of a legal matter entrusted to his care; intentional failure to seek the lawful objectives of his client; intentional failure to carry out a contract of employment; failure to notify client of his voluntary transfer to inactive status; failure to act with reasonable diligence and promptness in representing a client; and failure to keep his client informed about the status of the matter and promptly comply with reasonable requests for information.

(2) In June 1986, respondent undertook to represent [C], (complainant) in her divorce action for which he was paid in full by October 1986. Other than the filing of a complaint in July 1986, respondent failed to take any action on complainant’s behalf. Respondent failed to return the numerous calls placed by complainant from August 1986 through December 1987. Complainant renewed her effort to contact respondent by placing telephone calls in May and June 1988. After a continued lack of response, complainant retained new counsel in July 1988.

Proceedings

(1) On July 19, 1988, [C] filed a complaint with the Office of Disciplinary Counsel against [respondent].

(2) On August 17, 1988, respondent was advised of the allegations stated in the complaint. Despite follow-up letter dated September 12,. 1988, respondent failed to respond to the allegations.

(3) On December 5, 1988, Assistant Disciplinary Counsel found respondent guilty of transgressing the following Disciplinary Rules of the Code of Professional Responsibility and Rules of Professional Conduct: D.R. 1-102(A)(1), D.R. 6-101(A)(3), D.R. 7-101(A)(l), D.R. 7-101(A)(2), and rule 1.3 and rule 1.4. (See History of Discipline for explanations.)

(4) In consideration of the fact respondent has voluntarily transferred to inactive status and apparently has no intention to actively practice again, the Assistant Disciplinary Counsel recommended that respondent receive a private reprimand for the violations stated above with the following condition:

That respondent refund the fees and costs paid to him in advance by [C] which were not earned or paid (as costs) and submit proof of having done so to both the Secretary of the Board and to the District [ ] Office at least 10 days prior to the date of the private reprimand.

(5) On December 12, 1988, Chief Disciplinary Counsel approved the recommendation of the Assistant Disciplinary Counsel.

(6) On January 30, 1989, the Disciplinary Board designated a reviewing hearing committee member who approved the recommendation of Disciplinary Counsel that respondent receive a private reprimand and also approved of the required conditions.

(7) On February 23, 1989, in accordance with rule 208(a)(5), Pa.R.D.E., the Disciplinary Board assigned the matter to a three-member review panel. On March 9, 1989 the panel approved of the recommendation and conditions.

(8) On March 9, 1989, the Disciplinary Board ordered that [respondent] be subjected to a private reprimand by the Disciplinary Board of the Supreme Court of Pennsylvania as provided in rule 204(a)(5) and rule 205(c)(7) of the Pennsylvania Rules of Disciplinary Enforcement The, hoard also imposed the stated conditions.

(9) On March 15, 1989, the secretary to the board notified respondent by certified and regular mail of the Disciplinary Board’s order stated above.

(10) On April 15, 1989, the secretary to the board notified respondent by certified and regular mail that he was directed to appear before the Disciplinary Board on Thursday, May 18, 1989 at 10:45 a.m. for the purpose of receiving a private reprimand.

(11) On April 18, 1989, an investigator in the District [ ] Office served a notice to [respondent] to appear for private reprimand.

(12) Respondent failed to appear before the Disciplinary Board on May 18, 1989. He did not contact the secretary to the board nor the District [ ] Office to explain his absence.

CONCLUSION

In summary, [respondent] has failed to respond to any letters, notices, and actions of the Disciplinary Board since December 1987. Respondent has neglected or refused to appear for the purpose of private reprimand on two separate occasions; December 9, 1989 and May 18, 1989. Respondent voluntarily transferred to inactive status as of July 1, 1987. Respondent apparently has abandoned his practice, his clients, and responsibility for his wrongdoings.

ORDER AND RULE TO SHOW CAUSE

And now, June 15, 1989, upon consideration of respondent’s neglect or refusal to appear for the purpose of receiving private reprimands which were scheduled for December 9, 1988 and May 18, 1989, and respondent’s failure to respond to the rule and show cause why formal charges should not be instituted, it is hereby ordered that a rule is issued upon respondent to show cause why the attached history of proceedings should not be referred to the Supreme Court with a request that respondent be disbarred. The rule is returnable within 20 days from service of notice of this order.

ORDER

And now, February 23, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated September 21, 1989, it is hereby ordered that [respondent] be and he is disbarred from the bar of this commonwealth, and he shall comply with all the provisions of rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.


author: KELLER, Member,

text:
    In re Anonymous No. 31 D.B. 88
    Disciplinary Board Docket no. 31 D.B. 88.
    September 18, 1989
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

KELLER, Member,

Pursuant to rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations regarding the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

Respondent was admitted to practice law in the Commonwealth of Pennsylvania on May 26, 1958 and presently has an office at [ ].

On April 11, 1988, Office of Disciplinary Counsel filed a four-count petition for discipline. All four charges alleged in the petition arose from respondent’s involvement in an acrimonious divorce proceeding against his wife, [A], in which respondent represented himself throughout most of the divorce proceedings. In counts I through IV, disciplinary counsel alleged the following: During a hearing into the divorce and support action, respondent misrepresented to the court the price he received for a sailboat; during a support hearing in February, respondent falsely accused his wife of being a lesbian and named two innocent women as participants in the relationship; although respondent was directed by a court order to return certain farm equipment he had removed from the marital property, respondent falsely testified at a hearing that he did not have control over the equipment and had no capacity to return it; and although respondent was directed by a court order to pay support, he failed to pay, despite his ability to do so.

On May 24, 1988, respondent filed an answer in which he neither denied nor admitted the allegations. In accordance with Disciplinary Board Rule 89.54(d), the allegations were deemed to be at issue. Respondent also filed a new matter in which he charged that his divorce proceedings were prejudicial and violated due process. Disciplinary Counsel made no reply to the new matter because rule 208(b)(3)(4), Pa.R.D.E. does not provide for any pleadings other than a petition for discipline and an answer.

The matter was referred to Hearing Committee [ ] comprised of [ ]. A prehearing conference was conducted on August 11, 1988 before Hearing Committee Chairperson [ ]. The evidentiary hearings were held on November 14, 15, 16, and 17, 1988. On June 1, 1989, the hearing committee filed its report recommending disbarment.

On June 21, 1989 respondent filed a brief on exceptions and requested oral argument. Respondent excepted to the findings of fact as being contrary to and unsupported by the evidence of record and specifically objected to the recommendation for disbarment. Respondent argued “that the harsh discipline of disbarment is not justified in light of the circumstances of this case involving emotionalism and a hotly contested divorce action.”

On July 11, 1989 Disciplinary Counsel filed a brief opposing the respondent’s exceptions, requesting adoption of the hearing committee’s recommendation for disbarment.

Thereafter, oral argument was heard on July 26, 1989 before board members [ ]. The matter was adjudicated by the disciplinary board at its scheduled meeting on July 27, 1989.

FINDINGS OF FACT

On February 27, 1984 [B], Esq., a partner of the respondent at the time, filed a complaint in divorce on behalf of respondent against respondent’s wife, [A]. [A], represented by [C], Esq. filed an answer as well as a petition raising various claims under the Divorce Code on March 20, 1984.

Sailboat Issue

In a July 3, 1985 hearing before the Honorable [D], respondent, acting as his own counsel, stated on the record, during a three-party conversation between Attorney [C], Judge [D], and respondent, that he sold his 29-foot Kings Cruiser Sailboat, known as “[E],” for $10,000.

During a subsequent hearing before Judge [D] on October 17, 1985, respondent, acting as his own counsel, once again testified that he received $10,000 for the sale of the boat. On cross-examination, Attorney [C] confronted respondent with the check respondent received for the sale of the boat which was in the amount of $15,000. In light of this evidence, respondent testified that he did in fact receive $15,000, but he paid a $5,000 commission to [F]. However, at the same hearing, after a recess, respondent stated that he wanted to correct his answer and testified that the commission “was not paid to [F] personally; it was paid to the company [F] was working for at the time.”

At the hearing for discipline, respondent reverted to his original account of the events that he did pay [F] a $5,000 commission. Respondent further added that he made the payment to [F] by giving him 50 one-hundred-dollar bills which were tucked inside of an envelope.

Sexual Misconduct Issue

During the February 19, 1985 support hearing before the Honorable [D], respondent, acting as his own counsel, testified that his wife had engaged in lesbian behavior. Respondent testified that he had actually witnessed his wife engaging in sexual conduct with a [G]. Respondent also identified [H] as another woman with whom his wife was having a lesbian relationship.

In his opinion, issued subsequent to the hearing, Judge [D] found that [A] did not engage in a lesbian relationship. Judge [D] remarked that he had trouble finding that a man of respondent’s temperament would find his wife in such a compromising position and not say or do anything until he took the witness stand. However, he further concluded, despite the discrepancy between his findings and respondent’s testimony, that respondent was not deliberately lying.

Farm Equipment Issue

In September 1984, respondent removed various farm machinery from the marital property and transported it to his father’s farm in Maryland. In response, [A] filed a motion for special relief on October 3, 1984, requesting among other things the return of the farm machinery to the marital property. Respondent filed an answer and cross-petition for special relief.

After a hearing on the petitions, the Honorable [I] entered an order dated October 11, 1984 requiring that “basic items of farm equipment which will include one tractor and some capability for cutting grass or hay be returned to the farm.” Through his attorney, [B], Esq., respondent filed exceptions to the above order. Subsequently, no further action was taken by either party on the exceptions.

On February 26, 1985 a supplemental motion for special relief and rule to show cause was filed by [A] and after the hearing before, the Honorable [J], an order was issued dated March 8, 1985, directing respondent to comply with Judge [I’s] order requiring respondent to return the farm equipment. Respondent did not file an exception and did not return the farm equipment. On May 10, 1985, [A] filed a petition for rule and adjudication of civil contempt.

After a hearing before the Honorable [D], the court entered an order dated December 27, 1985 holding respondent in civil contempt for failing to comply with the order of Judge [I] dated October 11, 1984 and Judge [J] of March 8, 1985. Respondent appealed to the Pennsylvania Superior Court. A petition for supersedeas was filed and denied. Respondent still did not return the farm equipment to the marital property. Thus, on April 7, 1986, [A] filed another petition for contempt.

During a hearing before Judge [K], respondent, acting as his own counsel, testified that he did not have the farm equipment, he gave it to his father, and he could not return the equipment. By order dated April 24, 1986, Judge [K] found respondent in contempt of court for violation of Judge [I’s] October 11,1984 order, Judge [J’s] March 8,1985 order, and Judge [D’s] December 27, 1985 order and had respondent incarcerated in the [ ] County prison.

On April 29, 1986 the respondent filed a notice of appeal to the order of Judge [K]. The Pennsylvania Superior Court entered an order dated May 2, 1986 granting a supersedeas which would become effective upon respondent’s return of the farm equipment to his wife or until respondent filed a security in the amount of $30,000 to ensure performance of the order.

Respondent then filed a habeas corpus proceeding to the Supreme Court of Pennsylvania and by order dated May 8, 1986, respondent was released from jail. Respondent finally returned the farm equipment and thus purged the contempt.

What is of particular significance with respect to these disciplinary proceedings is that respondent made no attempt to return the farm equipment from October 1984 to approximately May 1986, although the farm equipment was within his control.

Support Proceedings Issue

On November 9, 1984, [A] filed an action of support against the respondent. After a hearing before the Honorable [D], the court entered an order dated December 27, 1985 ordering respondent to pay support in the amount of $2,450 per month retroactive to December 1984. Respondent appealed to the Pennsylvania Superior Court and a petition for supersedeas was filed and issued by order of the Honorable [L]. Because respondent failed to pay support, [A] filed a petition for contempt on April 7, 1986.

By order dated April 24, 1986, Judge [K] found that respondent willfully failed to pay support and had respondent incarcerated in the [ ] County prison. (Respondent was incarcerated under the same order for the contempt of court matter involving the farm equipment.) On April 29, 1986, respondent filed a notice of appeal to the order of Judge [K]. The Pennsylvania Superior Court entered an order dated May 2, 1986 granting a super-sedeas which required the respondent to deposit $15,000 or like security with the [ ] County court.

Respondent filed a habeas corpus proceeding to the Supreme Court of Pennsylvania and by order dated May 8, 1986, respondent was ordered to be released from jail. Also, respondent was given three weeks to pay $7,000 on account of the arrearage.

On December 8, 1986 the Pennsylvania Superior Court filed its opinion affirming Judge [D’s] order that respondent pay spousal support in the amount of $2,450 per month retroactive to December 1984. Respondent appealed and by order dated June 17, 1987 the Supreme Court of Pennsylvania denied respondent’s appeal.

Once again respondent failed to pay the spousal support. Thus, on August 18, 1987, [A] filed a petition for civil contempt. After a hearing, Judge [K] found respondent had the ability to páy. By order dated September 3, 1987, respondent was held in contempt of court. Judge [K] sentenced respondent to six months’ imprisonment which was stayed until September 10, 1987, allowing respondent the opportunity to purge himself. The court subsequently amended the order, staying the incarceration until September 30, 1987. Respondent then paid his. support arrearages in full and was not incarcerated. Respondent willfully failed to pay support to his wife despite his ability to do so.

DISCUSSION

This case, arising from respondent’s involvement in an acrimonious divorce proceeding, directly confronted the hearing committee with a decision as to the truthfulness of respondent’s testimony rendered under oath. The hearing committee, faced with this credibility issue, thoroughly considered the evidence, the record, and the credibility of the witnesses and determined that respondent’s testimony was not credible. The committee recommended disbarment.

This board will be guided by the hearing committee’s findings with respect to the matter of credibility; however, the board conducts its review of attorney disciplinary cases de novo, and may recommend whatever discipline it deems appropriate. See Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 275, 472 A.2d 186, 188 (1983); Office of Disciplinary Counsel v. Walker, 469 Pa. 432, 366 A.2d 563 (1976).

The board agrees with the hearing committee that respondent’s testimony was not worthy of belief. Respondent’s negligent disregard for the truth concerning the sale of his boat and his reckless allegations against his wife with respect to sexual misconduct clearly amounted to conduct that is prejudicial to the administration of justice. The fact that respondent was “acting on his own behalf and not that of a client cannot insulate him from disciplinary action.” Montgomery County Bar Association v. Hecht, 456 Pa. 13, 317 A.2d 597 (1974).

In regard to the sailboat, the facts indicate that respondent knew that [F] did not receive a commission for his aid in selling the sailboat. Respondent’s testimony before the hearing committee directly contradicted the testimony he gave at the hearing before Judge [D] in which he stated that the commission “was not paid to [F] personally, [rather] it was paid to the company [F] was working for at the time.” Respondent had no record of the payment and was unable to produce any credible evidence that the commission was paid. Furthermore, the hearing committee found credible the testimony of [F] that respondent requested [F] to state he received the commission in the event he was questioned.

With respect to the allegation of lesbianism, respondent contends that the court opinion of the Honorable [D], dated April 30, 1985, in which the court stated that it did not believe [respondent] was deliberately lying was conclusive as to his credibility on this issue. The board rejects this proposition. First, Judge [D] explicitly expressed his doubt that “it simply is incredible under these circumstances that a man of [respondent’s] temperament would find his wife in such a compromising position and not say anything and simply leave.” Second, the court of common pleas has no power to make a judgment as to an attorney’s professional conduct. “The power to investigate an attorney’s conduct and to impose discipline is with few exceptions possessed solely by [the Supreme] Court and its official disciplinary organization.” Office of Disciplinary Counsel v. Walker, 469 Pa. 432, 366 A.2d 563 (1976). The board concurs in the hearing committee’s finding that respondent’s testimony accusing his wife of engaging in a lesbian relationship and naming two innocent women as participants was not credible.

Also, respondent’s refusal to acknowledge the court orders directing him to pay spousal support and to return farm equipment to the marital property was an abuse of the legal system. Respondent willfully failed to act in both matters and simply ignored his duty to comply with the numerous court orders. It is obvious that respondent chose to ignore the court orders in an effort to harass his wife. The board agrees that respondent’s conduct is inexcusable and reflects adversely on those who practice law.

Pursuant to section 89.151(a) of the rules of the Disciplinary Board, the board also considered respondent’s previous violation of the Code of Professional Responsibility in order to determine the appropriate discipline. See In re Anonymous No. 28 D.B. 85, 39 D.&C. 3d 88, 99 (1986). Respondent’s previous conduct was similar to that presently before the board for review. Respondent had engaged in conduct “not only prejudicial to the administration of justice, but also most injurious to a member of the public as well.” In re Anonymous No. 72 D.B. 83, 35 D.&C. 3d 407 (1985). Because of the concern for laches and the statute of limitations, the respondent received a private reprimand.

In determining the appropriate discipline, the board recognizes the broad range of discipline of attorneys who have engaged in conduct similar to that of respondent. In In re Anonymous No. 2 D.B. 86, 46 D.&C. 3d 401 (1987), the respondent was suspended for three years for his conduct in which he continuously lied to federal investigators in an attempt to hide his receipt of unlawful gratuity. In In re Shigon, 462 Pa. 1, 329 A.2d 235 (1974), the respondents were found guilty of 16 charges of improper solicitation, 15 charges of submitting inflated and fraudulent medical claims to insurance carriers, seven charges of submitting false information to the court of common pleas, and five charges of attempting to suborn the testimony of a witness in an effort to impede the special judicial investigation. The respondent was suspended for five years. In another case, a respondent was disbarred for his conduct in which he lied under oath about the ownership of a particular piece of real estate. Montgomery County Bar Association v. Hecht, 456 Pa. 13, 317 A.2d 597 (1974).

The board also noted the grave nature of disciplinary proceedings and our responsibility to exercise the power to recommend the extreme sanction of disbarment with caution. See In re Leopold, 469 Pa. 384, 366 A.2d 277 (1976).

Although respondent’s conduct was egregious and injurious to members of society, the board believes that disbarment is not necessary in this case and suspension from the practice of law will adequately protect the public. In electing to suspend respondent rather than disbar, the board considered the following mitigating circumstances. Respondent was involved in a highly emotional divorce in which he represented himself. The board believes that if respondent had the good sense to retain counsel he may not have had the opportunity to allow his emotions to determine his conduct. Respondent has purged his contempt by paying the support and returning the farm equipment. Respondent, who has practiced law since 1958, was at one time the District Attorney of [ ] County and has been active in his bar association as well as the Pennsylvania Bar Association. From the testimony of the witnesses who came forth on respondent’s behalf, it is apparent that respondent is well respected by his peers.

The board has only considered these factors in mitigation and in no way finds the respondent’s conduct excused. In order to maintain the integrity of the legal profession and the judicial process, respondent must be severely sanctioned for his conduct.

CONCLUSIONS OF LAW

Respondent’s conduct violated the following Disciplinary Rules of the Code of Professional Conduct:

(1) D.R. 1-102(A)(3) — illegal conduct involving moral turpitude.

(2) D.R. 1-102(A)(4) — conduct involving dishonesty, fraud, deceit or misrepresentation.

(3) D.R. 1-102(A)(5) — conduct that is prejudicial to the administration of justice.

(4) D.R; 1-102(A)(6) — conduct that adversely reflects on the fitness to practice law.

(5) D.R. 7-102(A)(1) — intentionally filing a suit, asserting a position, conducting a defense, delaying a trial or taking other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

(6) D.R. 7-102(A)(3) — knowingly failing to disclose that which he is required by law to reveal.

(7) D.R. 7-102(A)(4) — knowingly using perjured testimony or false evidence.

(8) D.R. 7-102(A)(5) — knowingly making a false statement of law or fact.

RECOMMENDATION

The Disciplinary Board recommends that respondent be suspended from the practice of law for a period of four years. We further recommend the costs in connection with these proceedings be assessed against respondent.

Mr. Eckell dissents and would recommend disbarment. Mr. Douglas recused himself.

Ms. Heh and Messrs. Tumolo and Stoelker did not participate in the adjudication.

ORDER

And now, February 23, 1990, upon consideration of the report and recommendations of the disciplinary board dated September 18, 1989, it is hereby ordered that [respondent] be and he is suspended from the bar of this commonwealth for a period of four years, and he shall comply with all the provisions of rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the disciplinary board, pursuant to rule 208(g), Pa.R.D.E.


author: DOWLING, J.,

text:
    Commonwealth v. Karlin
    May 8, 1989

      Jeffrey H. Gribb, deputy attorney general, for the commonwealth.

      Robert J. Donatoni and Scott McLarty, for defendant.
   DOWLING, J.,

“When I use a word,” Humpty-Dumpty said, in a rather scornful tone, “it means just what I choose it to mean neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty-Dumpty, “which is to be master that’s all.”

In our adaptation of this Lewis Carroll classic, defendant Jack B. Karlin maintained that the Pennsylvania personal income tax statute meant just what he chose it to mean. Based upon information gleaned from attending tax protest seminars and upon his own study of the law, defendant concluded that the income tax was not a tax on income, but rather, that it was a levy specifically imposed on a privilege. The central tenet of Dr. Karlin’s theory was that the right to earn income as a doctor in Pennsylvania was not a taxable privilege. Noting that the commonwealth had not granted him any privilege which produced a taxable activity, Karlin then determined he was not a “taxpayer” and was not subject to the filing requirements of the Tax Code.

The Office of the Attorney General prosecuted defendant for willful failure to file Pennsylvania state income tax returns for the years 1985 and 1986. At trial the commonwealth established that Karlin, a resident of the State of New Jersey, realized a net profit from a medical practice he operated in Philadelphia, which by law triggered the duty to file a state income tax return. Other evidence was introduced to demonstrate that Karlin had adopted a variety of tax avoidance theories over the years, including a vow of poverty and Fifth Amendment objections to filing a return.

Defendant did not dispute the basic facts, but instead asserted his belief that neither he, nor anyone else similarly situated, was required by law to file a Pennsylvania personal income tax return. The sole defense presented at trial was that Karlin’s failure to file the returns was a result of a good-faith misunderstanding of the law and did not constitute a willful violation of a known legal duty. Following a bench trial, the court rejected defendant’s good-faith claim, noting that his interpretation of the tax laws was a “subversive and specious theory of great personal convenience,” and convicted him on both counts.

Karlin was charged with violating section 353(c) of the Tax Reform Code of 1971, 72 P.S. § 7353(c), which provides in pertinent part:

“Any person required under this article ... to make a return ... at the time or times reqüired by law or regulations shall, in addition to other penalties provided by law, be guilty of a misdemeáiior and shall, upon conviction, be sentenced to pay a fine not exceeding $5,000 or tq undergo imprisonment not exceeding two years, or.both.”

To sustain a conviction under section 353(c), the commonwealth must prove defendant was a person required by law to make and file an income tax return for the years in question, that he failed to file a return for such year at the time required by law, and that the failure to file such a return was willful. Defendant has filed a motion in arrest of judgment, or in the alternative, a motion for a new trial, predicated on the assertion that the commonwealth presented insufficient evidence to establish the element of willfulness beyond a reasonable doubt. A second ground for relief was that the court erred in applying an objective, rather than subjective, standard in assé’ssirig the credibility of defendant’s claim of a good-faith misunderstanding qf the law,

To determine the sufficiency of the evidence, the court must view the evidence in the light most favorable to the commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the trier of fact could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Scatena, 508 Pa. 512, 518, 498 A.2d 1314, 1317 (1985); Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981).

Neither our research, nor that of counsel, has disclosed any Pennsylvania appellate court decisions construing the “willful” requirement in a personal income tax prosecution. We are aided in our analysis, however, by the culpability standards set forth in the Crimes Code. Section 302(g) provides:

“(g) Requirement of willfulness satisfied by acting knowingly — A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.” 18 Pa.C.S. §302(g). The Crimes Code defines “knowingly” at section 302(b)(2)(i) as:
“(2) A person acts knowingly with respect to a material element of an offense when:
“(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist.”

These definitions are applicable to offenses defined in the Crimes Code and by any other statute. 18 Pa.C.S. § 107(a).

Section 353 of the Tax Code is based upon a substantially similar provision of the Internal Revenue Code, 26 U.S.C. §7203. The U.S. Supreme Court has examined the meaning of “willfully” failing to file a tax return and has equated that requirement with an intentional act in violation of a known legal duty. United States v. Pomponio, 429 U.S. 10, 12 (1976). By requiring the government to establish an intentional violation of a known duty, the court “implement[ed] the pervasive intent of Congress to construct penalties that separate the purposeful tax violator, from the well-meaning, but easily confused, mass of taxpayers.” United States v. Bishop, 412 U.S. 346, 361 (1973). The court has also opined that “Congress did not intend that a person by reason of a bona fide misunderstanding as to his tax liability . . . should become a criminal by his mere failure to measure up to the prescribed standard of conduct.” United States v. Murdock, 290 U.S. 389, 396 (1933).

In applying these standards, the Seventh Circuit affirmed a conviction for failure to file income tax returns where the government introduced evidence of prior filings to demonstrate the defendant’s willful failure to file in later years. United States v. Birkenstock, 823 F.2d 1026 (7th Cir. 1987). On his 1974 and 1975 returns Birkenstock attempted to reduce his reported income by dividing it by the number of dollars it would take to buy an ounce of gold on the London market and in the ensuing years he assigned all of his income to a “family trust” in an attempt to evade tax liability. The court held these prior returns were relevant to show defendant’s knowledge of the filing requirements and affirmed the conviction.

In United States v. Burton, 737 F.2d 439 (5th Cir. 1984), defendant maintained that wages did not constitute income so he did not file income tax returns. Burton challenged his conviction on the basis that he maintained the belief in good faith and thus did not have the requisite intent to violate the Internal Revenue Code. The court rejected this argument and noted that it is not a defense to a willful failure to file tax returns when the defendant acts out of disagreement with the law or out of a belief that the law is unconstitutional. See also, United States v. Bressler, 772 F.2d 287 (7th Cir. 1985).

The underlying premise of both the state and federal “willful” requirement is to separate those taxpayers who through negligence, inadvertence or mistake fail to comply with the statutory requirements from those who demonstrate an obdurate refusal to acknowledge what the tax code requires. In the instant case, the record is replete with evidence which is inconsistent with a credible claim of good-faith misunderstanding of the requirements of the law. The records of the Department of Revenue revealed that defendant filed state personal income tax returns for the years 1971 through 1976 and then ceased doing so. For the year 1978, defendant filed a so-called “Fifth Amendment return” on which the inscription “object, Fifth Amendment” was entered in the spaces designated for income figures. The evidence also showed that defendant filed City of Philadelphia net profits tax returns for the prosecution years of 1985 and 1986 and also filed federal income tax returns with the Internal Revenue Service for said years, albeit under protest. On both of the federal returns, Karlin inscribed: “Filed involuntarily, under duress, and by direct order of U.S. Dist. Ct. Judge A.E. Thompson.” All of these returns contained a properly prepared Schedule C, Profit (Loss) From Business or Profession, indicating an understanding of the business accounting which served as the basis for the city and federal returns, and which would have served as the basis for reporting and computing his state income tax liability if he had chosen to do so.

Defendant’s appeal from an estimated assessment issued by the Department of Revenue for tax year 1979 was denied by the Department of Revenue’s Board of Appeals in November 1981. In doing so, the Board of Appeals rejected the legal theories which defendant advanced as not requiring him to file a state income tax return. Defendant’s appeal from this ruling to the Board of Finance and Revenue resulted once again in defendant’s legal theories being rejected. Despite the rejection of these theories by two administrative tribunals of the commonwealth, defendant persisted at trial with his claim that he was under a bona fide misunderstanding of the legal requirement to file returns.

Other factors affecting the credibility of defendant’s claim of good faith are the fact that he retained a firm of certified public accountants throughout the 1970s and 1980s, and yet never sought their professional advice as to whether he was required to file a Pennsylvania state income tax return. Also, he refused to consult with any attorneys in the Philadelphia vicinity for advice as to whether he should file state income tax returns, and instead accepted as gospel the tax avoidance teachings of out-of-state attorneys supplemented by his own study of the matter. He stopped filing state income tax returns in 1976, and since then has espoused an ever-changing array of “legal” theories, all of which are designed to help him escape the obligation to pay taxes. In addition to the 1978 so-called “Fifth Amendment return,” Karlin’s other gambits included having himself ordained as a minister of the Life Science Church and taking a vow of poverty, and writing certified létters to the Commonwealth of Pennsylvania and treating the lack of a response thereto as a tacit approval of his misguided theories. Defendant placed great reliance on the fact that he never received a response to these letters. He now argues that this demonstrates his good faith and also explains why he was mistaken as to the requirements of the law. In actuality, the use of this tax protester ploy is yet another piece of circumstantial evidence that defendant’s claim that he was operating under a good-faith misunderstanding of the legal requirement to file a return is not worthy of belief.

In response to a letter from the Collections Division, Office of Attorney General, concerning his delinquent taxes, Dr. Karlin replied:

“I find I need an explanation of the symbol ($). This ($) preceeds [sic] the figure 2,884.52. Kindly tell me what it means and where I might obtain the same. If I don’t know what they are, or where to obtain them, how can I forward them to your office?”

This letter is probative of the fatuous positions adopted by the defendant in order to escape tax liability.

The utter futility of attempting to reason with defendant or to explain to him what provisions of the law require him to file returns is amply illustrated by the two interviews and follow-up correspondence between defendant and Special Agent Hines, as well as defendant’s testimony in court. When confronted with the verbiage of the tax statute by the Department of Revenue agents, Kar-lin engaged in his usual polemics and semantics. Any attempt to confine the discussion to the plain language of the filing requirements was as fruitful as attempting to nail Jell-0 to a wall.

It strains credulity to contend in the face of this overwhelming evidence that defendant’s conduct was not willful, but rather was the product of a good-faith misunderstanding of the Tax Code requirements. Defendant was aware of his legal duty to file personal income tax returns and his refusal to comply emanates from his obdurate refusal to admit that the Tax Code is constitutional and is applicable to him. Defendant’s challenge based upon the sufficiency of the evidence must fail.

Karlin’s second allegation of error is that the court misapplied an objective standard in assessing the credibility of his good-faith defense. He maintains that the law requires a subjective test, i.e., did defendant really misunderstand the legal obligations imposed on him. Defendant’s claim must fall under either test. With regard to an objective standard, Karlin admitted that most people do not share his interpretations of the tax law. A reasonably prudent person under the circumstances would be put on notice by the Tax Code that income earned in Pennsylvania is subject to the state income tax.

Under a subjective standard, we must view defendant’s actions in the context of the totality of the evidence produced at trial. We cannot crawl within defendant’s psyche to evaluate the credibility of his claimed good-faith misunderstanding of the law. Karlin maintained he was sincere in his beliefs and argues that no one has ever demonstrated to his satisfaction the error of his reading of the tax statute. When viewed in light of all of the evidence, Karlin’s refusal to file the 1985 and 1986 tax returns was willful under any definition of that term.

Defendant cannot define the tax code nor the penalties contained therein to suit his personal fancy. In the end, it is the legislature and the courts which are masters of the word set forth in the tax laws.

Accordingly, we enter the following

ORDER

And now, May 8, 1989, defendant’s post-trial motions are denied. The attorney general is directed to present defendant for sentencing.

      . L. Carroll, Through The Looking Glass, at 94 (1946). (emphasis in original)

      . 72 P.S. §7301(w) provides in pertinent part: “ ‘Taxpayer’ means any individual, estate or trust subject to the tax imposed by this article. ...”

      . “72 P.S. §7308. Nonresident individuals; taxable income —
      “The income of a nonresident individual shall be that part of his income derived from sources within this commonwealth as defined in this article.”
      See also, Buckley v. Commonwealth, 81 Pa. Commw. 530, 475 A.2d 160 (1984), affirmed 510 Pa. 326, 508 A.2d 281 (1986).

      . “26 U.S.C. §7203. Willful failure to file return, supply information, or pay tax —
      “Any person required under this title... to make a return... who willfully fails ... to make such return ... at the time or times required by law or regulations shall in addition to other penalties provided by law, be guilty of a misdemeanor.”


text:
    Ridolfi v. Harrisburg Hospital
    March 15, 1989

      Ron Turo, for plaintiff.

      Michael A. Moore, for defendants.
   DOWLING, J.,

The cause of action for wrongful discharge, unknown at common law, has its Pennsylvania genesis in the seminal case of Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). The plaintiff in Geary believed that a new steel tube product had not been adequately tested, and that it constituted a danger to persons using it. Geary expressed his concerns vigorously to his superiors, including a company vice president, and was fired soon thereafter for making a nuisance of himself. He filed a complaint alleging the company’s conduct was wrongful, abusive and malicious, and sought both punitive and compensatory damages.

The trial court sustained the company’s preliminary objections in the nature of a demurrer, and the complaint was dismissed. The Superior Court affirmed per curiam and the case reached the Supreme Court. The court recognized that absent a statutory or contractual provision to the contrary, there is a presumption of an at-will employment relationship which can be terminated by either side at any time for any or no reason. The court conceded, however, that an at-will employee may have a cause of action against his employer for wrongful discharge if the firing violates a clear mandate of public policy or was done with specific intent to harm the employee. Geary at 180-5, 319 A.2d at 178-80. In the following decade and a half, our courts have narrowly construed these exceptions to the employment-at-will doctrine.

Pending for disposition is defendants’ motion for summary judgment in a case involving the discharge of a hospital employee. Defendants contend the firing does not implicate a cognizable public policy, there are no genuine issues of material fact, and thus they are entitled to judgment as a matter of law. Plaintiff counters that there are sufficient factual allegations to proceed to trial on the issue of whether the pulmonary function test was a medical procedure requiring a physician’s order.

Edward G. Ridolfi was employed as a pulmonary function technician by defendant, Harrisburg Hospital. Individual defendants, David Wilson and Stephen Geeseman, were the administrative director and clinical supervisor, respectively, at the hospital. On May 2, 1985, Ridolfi received a request from his supervisor, defendant Geeseman, to perform a pulmonary function test on a heart patient. Noting that there was no written order from a physician, plaintiff refused. A verbal authorization was subsequently obtained from a doctor and Ridolfi then performed the test. Six days after this incident, Ridolfi was notified by defendant Wilson that he was being discharged.

Plaintiff filed suit seeking reinstatement to his former position, as well as compensable and punitive damages. The complaint contains three counts which advance separate causes of action for wrongful discharge, breach of contract, and intentional infliction of emotional distress. Defendants filed preliminary objections and count III (intentional infliction of emotional distress) was stricken from the complaint. At oral argument and in his brief, plaintiff has abandoned the breach of contract claim and has conceded that the hospi-taTs unilateral act of publishing and promulgating an employee manual does not create any contractual rights nor does it negate the employment-at-will presumption.

The lone remaining count of the complaint alleged that “defendants wrongfully, willfully, maliciously, intentionally and in bad faith discharged plaintiff . . . solely because he failed to follow. a supervisor’s order which order was in direct violation of hospital policy, state law and sound medical procedure.” Plaintiff maintains that his dismissal constitutes a. clear violation of the public policy of the Commonwealth of Pennsylvania as articulated in a health care regulation, 28 Pa. Code §107.61. Finally, the wrongful discharge count also contains a bald assertion that defendants acted with a specific intent to harm plaintiff by terminating his employment.

The standard governing the grant or denial of a motion for summary judgment is well established. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. ... It is basic that summary judgment may be entered only in a case that is clear and free from doubt.” Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 44-5, 489 A.2d 828, 831 (1985); Pa.R.C.P. 1035(b). The function of the court is not to decide issues of fact, but only to determine whether any such issues exist. Ilie court must examine the record in the light most favorable to the non-moving party and all doubts as to the existence of a genuine issue of material fact must also be so resolved.

Applying these standards, plaintiff has pled that he reasonably believed the pulmonary function test was a medical procedure which should be administered only upon the written order of a physician. Plaintiff cites 28 Pa. Code §107.61 to substantiate his contention that a genuine issue of material fact exists on whether the test requires prior authorization from a doctor. The code requires a written and signed order from a practitioner prior to the administration of medication or treatment, and a diagnostic procedure such as a pulmonary function test does not fall within the purview of either of these categories.

In his deposition, Ridolfi explained in laymen’s terms what the test entails:

Q: All right. Tell me a little bit about pulmonary function test. You are a therapist. Let’s assume I. know nothing about it. Explain it to me as a total layman.
A: Generally what it does is determines disease of the lung, airway damage, if there is any airway damage present, to the extent of the damage. And physician seeing — you can get it pictorially, usually through a computer. That’s what I did at the hospital. And the physician sees the results and prescribes the proper treatment.
Q: Does the patient blow into some sort of machine?
A: Correct.
Q: How do you do the test, in other words?
A: Well, the patient is usually sitting, and on the simple spirometry, the patient would take a deep breath maximally and blow out as forcefully as possible.
Q: In other words, you would say take as big a breath [as] you could and blow as hard as you can?
A: And as fast as you can.
Q: Into the machine?
A: Until all the air in your lungs is empty.
Earlier in his deposition, plaintiff unequivocally denied that a pulmonary function test constitutes a medical treatment:
Q: Now, in your complaint, you state that pulmonary function test is medical treatment. Would you define medical treatment? What is your definition?
A: Medical treatment — what I in my own words — I would say medical treatment is treatment that is designated or given by a physician to a patient who is ill.
A: I never said that a pulmonary function test is a medical treatment. It defines disease, if there is disease in the lungs. That is what I was indicating.
Q: So let’s just make sure. That makes sense to me, it defines disease. Paragraph eight said pulmonary function tests constitute medical treatment. See that?
A: Yes.
Q: So you are saying that is really not correct?
A: Right.
Q: You were saying a pulmonary function test. . .
A: Does not constitute medical treatment.
Q: It does not?
A: No.

Any lingering doubt on this question was resolved by the affidavit of James B. Henry, a senior vice president of Harrisburg Hospital. Mr. Henry stated that the pulmonary function test itself does not constitute medical treatment and the hospital has no policy or protocol requiring written authorization from a practitioner prior to administering it. Clearly, plaintiff has not established a triable question of fact which would preclude summary judgment in favor of defendants.

The next inquiry is whether defendants are entitled to summary judgment on the wrongful discharge claim as a matter of law. Geary and its progeny have carved a very narrow public policy exception to the employment-at-will doctrine. To establish a cause of action for wrongful discharge, the employee must demonstrate that his termination violated a clearly mandated public policy which strikes at the heart of a citizen’s social rights, duties, and responsibilities. Paul v. Lankenau Hospital, 375 Pa. Super. 1, 543 A.2d 1148 (1988); Turner v. Letterkenny Federal Credit Union, 351 Pa. Super. 51, 505 A.2d 259 (1985). It is also generally accepted that to be actionable, the asserted public policy must be one which is already articulated in law or a constitutional provision. Scott v. Extracorporeal Inc., 376 Pa. Super. 109, 545 A.2d 334 (1988).

While a litany of suits have been filed by disgruntled former employees, our courts have exercised remarkable restraint in the application of the public policy exception. See Paul v. Lankenau Hospital, 375 Pa. Super. 1, 543 A.2d 1148 (1988) (employee discharged for theft); Marsh v. Boyle, 366 Pa. Super. 1, 530 A.2d 491 (1987) (employee claimed employer acted in arbitrary, capricious and abusive manner); Betts v. Stroehmann Brothers, 355 Pa. Super. 195, 512 A.2d 1280 (1986) (no public policy protecting employees who have performed their duties properly from discharge); Gillespie v. St. Joseph’s University, 355 Pa. Super. 362, 513 A.2d 471 (1986) (employee alleged he was falsely accused of criminal conduct and then discharged); McCartney v. Meadowville Manor Inc., 353 Pa. Super. 34, 508 A.2d 1254 (1986) (employee discharged for applying for a license to run a competing facility); Tourville v. Inter-Ocean Insurance Co., 353 Pa. Super. 53, 508 A.2d 1263 (1986) (discharge of employee because he was unable to perform his job due to illness); Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 489 A.2d 836 (1985) (employee alleged that he was fired for suggesting to his superiors ways in which tax money could be saved by better management and use of facilities); Yaindl v. Ingersoll-Rand Co., 281 Pa. Super. 560, 422 A.2d 611 (1980) (employee discharged for questioning safety of products and protesting their use). In all of these cases, the court determined that a cognizable public policy was not violated and denied recovery for wrongful discharge.

There are at least two instances, however, where the Superior Court has entertained actions for wrongful discharge. In Hunter v. Port Authority of Allegheny County, 277 Pa. Super. 4, 419 A.2d 631 (1980), the court recognized there was an established policy against stigmatizing former offenders and held that an employee convicted of assault but pardoned by the governor had made out a cause of action for wrongful discharge even though he was an at-will employee. In Reutherv. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978), the court ruled that a discharge motivated by an employee’s service of jury duty contravened the strong public policy of promoting the responsibility of performing jury duty.

In the instant case, plaintiff alleges that his dismissal violates the public policy of protecting the safety of patients at medical facilities by requiring prior written authorization from a practitioner before performing medical procedures. Assuming, ar-guendo, that 28 Pa. Code §107.61 is applicable to the administration of a pulmonary function test, these health regulations are insufficient as a matter of law to constitute a clearly mandated public policy which strikes at the heart of a citizen’s social rights, duties, and responsibilities. Paul, supra. Even if we accept plaintiffs alternative contention that sound medical procedures and hospital protocol required a doctor’s order before performing this test, Mr. Ridolfi is still not entitled to relief under the public policy exception.

Regardless of the praiseworthiness of plaintiffs motives in refusing to perform the diagnostic test, he was an employee at-will and subject to termination at any time for a good reason, a bad reason or no reason at all. Much like Mr. Geary before him, Ridolfi has failed to establish a cause of action against his employer.

Plaintiffs complaint also contains a bald assertion that the hospital acted with a specific intent to harm Ridolfi by terminating his employment. To recover under the specific intent to harm exception the employee must allege specific facts which demonstrate that the discharge was motivated by either an ulterior purpose or was made with disinterested malevolence. Geary at 179, 319 A.2d at 178. A mere recitation that defendant acted “intentionally, wrongfully, maliciously, fraudulently, deceitfully and without justification” does not set forth sufficient allegations of fact to satisfy the specific intent to harm requirement. Paul, su-pra.

The Superior Court has defined “disinterested malevolence” to mean that there was “no proper interest involved in the firing; that there was no reason for the action (other than an atavistic desire to hurt another).” Tourville v. Inter-Ocean Insurance Co., 353 Pa. Super. 53, 56-7, 508 A.2d 1263, 1265 (1986). In Tourville, the Superior Court affirmed the grant of summary judgment against an employee finding that a specific intent to harm was not present in a co-worker’s statement to the former employee’s clients that the employee, who had been ill and hospitalized, beat his wife, had a nervous breakdown and kept dishonest accounts. The alle-gata of Mr. Ridolfi’s action pale by comparison with the facts of Tourville.

Plaintiff maintains that the employer’s intent to harm him is evident on the face of the pleadings and from his deposition. We have carefully reviewed the pleadings and Mr. Ridolfi’s deposition testimony and have concluded there is no genuine issue of material fact which would warrant the submission of this case to a jury. Even when viewed in the light most favorable to plaintiff, the factual allegations of record are insufficient to support a wrongful discharge cause of action under the specific intent to harm exception.

Accordingly; we enter the following

ORDER

And now, March 15, 1989, defendants’ motion for summary judgment is granted. '

      . A test to assess the efficacy of the function of the lungs. There are two group of tests. One group assesses the mechanical aspect of lung function, i.e., the ability of the chest wall, the diaphragm, and the airways of the lung to move the air and distribute it to the alveoli of the lung (the tiny sacs where the exchange of oxygen and carbon dioxide takes place). The other group of tests assesses the efficacy of the alveoli to perform their function. Schmidt, Attorneys’ Dictionary of Medicine, Vol. 3, at P-378 (Matthew Bender 1988).

      . The gravamen of the breach of contract claim was that defendants violated the provisions of the employee manual by failing to investigate the incident prior to terminating his employment and that they breached an implied covenant of good faith and fair dealing.

      . “Medication or treatment shall be administered only upon written and signed orders of a practitioner acting within- the scope of his license and qualified according to medical staff bylaws and section 107.12(k) (relating to content of bylaws, rules, and regulations) except as provided in section 107.62 (relating to oral orders), section 107.64 (relating to administration of drugs), and section 107.65 (relating to automatic stop drug orders). The date that the order was written shall be included on all written orders.”