author: SCHULTZ, Member,

text:
    Office of Disciplinary Counsel v. Abrams

      Disciplinary Board Docket, no. 153 D.B. 2000.
    November 7, 2002
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SCHULTZ, Member,

Pursuant to Rule 208(d) (2) (iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On November 28, 2000, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against respondent, Ronald B. Abrams, alleging that respondent engaged in certain professional misconduct, thereby violating Pennsylvania Rules of Professional Conduct 1.15(a), 1.15(b) and 8.4(c). Respondent filed an answer to the petition for discipline on December 29, 2000.

Disciplinary hearings were held on both April 24,2001 and June 18,2001 before Hearing Committee 1.09 comprised of Chair Denise Joy Smyler, Esquire and Members Thomas G. Wilkinson Jr., Esquire and Jerry Michael Lehocky, Esquire. Petitioner was represented by Barbara S. Rosenberg, Esquire. Respondent was represented by Samuel C. Stretton, Esquire. Petitioner submitted a stipulation of facts as well as nine exhibits and presented no witnesses. Respondent submitted a supplemental stipulation of facts as well as over 40 exhibits and presented the testimony of his accountant, his financial advisor, his treating psychiatrist, a psychiatric expert and various character witnesses, as well as his own testimony.

The Hearing Committee filed a report on January 29, 2002 recommending an 18-month suspension. A brief on exceptions was filed by petitioner. Respondent filed a brief opposing exceptions and requested oral argument. Oral argument was heard on May 6, 2001 by a panel consisting of Board Members Mark C. Schultz, Esquire, John W. Morris, Esquire, and Lisa A. Watkins, Esquire.

This matter was adjudicated by the Disciplinary Board at its meeting on May 15, 2002.

II. FINDINGS OF FACT

The board makes the following findings of facts:

(1) Respondent was bom in 1944 and was admitted to practice law in the Commonwealth of Pennsylvania in 1970.

(2) For most of his years in practice, respondent maintained a very busy plaintiff’s personal injury practice.

(3) At various times during the period from 1995 through 1998, respondent held fiduciary funds in the following bank accounts:

(a) Midlantic Bank account no. 000-517206-9, titled “Ronald B. Abrams Esq. escrow account”;

(b) Midlantic Bank account no. 84-0030-5993, titled “Ronald B. Abrams Esq. escrow account”;

(c) PNC Bank account no. 84-0030-5993, titled “Ronald B. Abrams Esq. escrow acct”;

(d) PNC Bank account no. 86-01916272, titled “Ronald B. Abrams IOLTA,” 5/12/98-present;

(e) Midlantic Bank account no. 000-4278040, titled “Ronald B. Abrams, Attorney,” which became:

(f) PNC Bank account no. 84-0025-5631, titled “Ronald B. Abrams, Attorney”;

(g) Jefferson Bank account no. 0510-17334, titled “Ronald B. Abrams Esq.,” 9/96-3/98;

(h) United Valley Bank account no. 032-03336, titled “Ronald B. Abrams Esquire IOLTA account”;

(i) Jefferson Bank account no. 0022-13303, titled “Ronald B. Abrams Esquire”;

(j) First Executive Bank account no. 104 982 8, captioned “Ronald B. Abrams, Esq. escrow account”; and

(k) United Valley Bank account no. 002-13303, titled “Ronald B. Abrams Esquire.”

(4) During a period commencing in 1995 and continuing to late 1998, respondent engaged in a pattern of misconduct involving funds of clients and third persons in his possession in connection with a representation (fiduciary funds), wherein he:

(a) failed to hold all fiduciary funds in a bank account separate from his own funds, deposited personal funds into an account used as an escrow account, and distributed fiduciary funds from that account;

(b) failed to promptly distribute to clients and third parties funds to which they were entitled, and in some cases never made such distribution, as set forth in paragraph 12;

(c) issued checks for fiduciary obligations which were not supported by sufficient funds;

(d) utilized fiduciary funds for his own benefit, without the knowledge and consent of the parties entitled to the funds; and

(e)failed to maintain sufficient funds in the account(s) into which he deposited fiduciary funds to meet all fiduciary entrustments.

(5) During the following periods, respondent failed to hold sufficient funds in said accounts to support all fiduciary entrustments:

ESCROW ONLY DAYS COMBINED DAYS
BALANCE ALL ACCOUNTS
3/29/95-4/7/95 10 4/4/95-4/7/95 4
4/12/95-5/23/95 41 4/17/95-5/23/95 37
6/16/95-7/6/95 21 6/19/95-6/27/95 9
6/29/95-7/6/95 8
8/18/95-8/20/95 3
10/18/95-10/20/95 3
10/31/95-12/5/95 35 11/9/95-12/5/95 26
12/7/95-12/31/95 25 12/7/94-12/31/95 25
TOTAL FOR YEAR 1995 138 109
1/1/96-5/13/96 133 1/1/96-3/15/96 75
3/21/96-5/13/96 53
5/17/96-5/30/96 13 5/23/96-5/30/96 8
6/10/96-6/21/96 12 6/11/96-6/21/96 11
7/1/96-12/31/96 184 7/1/96-12/2/96 155
12/11/96-12/27/96 17
TOTAL FOR YEAR 1996 342 319
1/1/97-5/7/97 127 1/3/97-1/6/97 4
1/16/97-2/3/97 19
2/14/97-5/7/97 73
5/19/97-10/27/97 161 5/19/97-10/27/97 161
11/21/97-12/31/97 40 11/24/97-12/31/97 38
TOTAL FOR YEAR 1997 328 305
1/1/98-1/23/98 23 1/1/98-1/23/98 23
2/2/98-2/13/98 8 2/9/98-2/12/98 5
TOTAL THROUGH 6/30/98 31 28

(6) The negative cumulative account status reached as high as $65,676.74 during this period.

(7) Distributions took place as follows in the following matters:

(a) John Brownlee $6,948 1/19/95 1/23/95
958 2/15/95
633 3/21/95
233 3/28/95
0 3/28/96
Lapse: 69 days
(b) G. Nichol Est. $35,852 2/10/95 - 2/24/95
6,641 - 6/20/95
6,337 - 6/21/95
3,787 - 6/26/95
3,723 - 7/5/95
2,728 - 11/12/96
0 - 11/13/96
Lapse: 277 days
(c) Derrick Snowten $7,640 4/10/95 - 5/2/95
2,352 - 5/4/95
399 - 5/15/95
231
Lapse: 35 days
(d) Linda Carroll $7,442 4/10/95 - 5/25/95
2,309 - 6/20/95
1,841 - 6/23/95
168 - 6/26/95
0 - 6/27/95
Lapse: 77 days
(e) Ivan Ortiz $5,480 5/4/95 - 5/15/95
1,885 - 5/31/95
950 - 7/5/95
0 - 7/6/95
Lapse: 62 days
(f) Beulah Nelson $56,545 5/24/95 - 6/12/95
6,342 - 6/23/95
5,694 - 6/26/95
2,641 - 6/30/95
2,326 - 7/10/95
1,510 - 7/31/95
0 - 8/1/95
Lapse: 69 days
(g) Crystal Hill $5,830 7/7/95 - 7/12/95
1,294 - 8/11/95
0 - 8/14/95
Lapse: 38 days
(h) Roosevelt Brant $32,997 1111 195 - 7/24/95
31.497 - 8/7/95
23.497 - 8/25/95
15.000 - 9/14/95
10.000 - 11/20/95
8,000 - 1/22/96
4,000 - 3/18/96
0 - 3/19/96
Lapse: 245 days
(i) Eul Kim $1,310 8/16/95 - 9/27/95
0 - 9/28/95
Lapse: 43 days
(j) Bok Ram Cho $3,310 8/16/95 - 9/27/95
0 - 9/28/95
Lapse: 43 days
(k) Jong Sun Kim $6,900 10/16/95 - 11/13/95
6,000 - 2/2/96
2,750 - 3/1/96
2,575 - 3/25/96
2,075 - 7/15/96
2,000 - 10/19/00
0 - 10/17/00
Lapse: 4 years + 2 days
(1) Dawn Young $4,834 10/24/95 - 10/25/95
2,314 - 7/2/96
1,772 - 7/3/96
1,036 - 7/5/96
735 - 7/12/96
472 - 8/2/96
360 - 11/20/96
0 - 11/21/96
Lapse: 1 year + 29 days
(m) Ella Honoré $13,653 10/24/95 - 2/1/96
3,102 - 4/1/96
1,656 - 4/5/96
990 - 5/28/96
120 - 6/3/96
0 - 6/5/96
Lapse: 225 days
(n) Geraldine Carr $20,210 11/21/95 - 12/11/95
18,210 - 1/25/96
14,210 - 2/2/96
6,747 - 2/12/96
6,373 - 2/29/96
2,668 - 3/1/96
906 - 3/16/96
0 - 3/19/00
Lapse: 118 days
(o) Nyasa Monk $20,678 12/7/95 - 1/2/96
19,028 - 1/19/96
18,498 - 2/20/96
0 - 2/21/96
Lapse: 76 days
(p) Dana Williams $500 12/22/95 - 5/15/00
0 - 5/16/00
Lapse: 4 + 147 days
(q) Alma Young $24,447 1/22/96 - 3/29/96
7,683 - 4/10/96
7,013 - 4/15/96
4,531 - 4/17/96
2,383 - 4/22/96
1,588 - 4/23/96
475 - 5/13/96
0 - 5/14/96
Lapse: 113 days
(r) 111 Ho Rim $24,288 2/13/96 - 2/27/96
9,834 - 3/20/96
9,134 - 4/2/96
0 - 4/3/96
Lapse: 41 days
(s) Ronald Graves $22,897 3/18/96 - 3/18/96
14,598 - 3/28/96
7.598 - 4/19/96
5.598 - 4/22/96
1,086 - 6/17/96
0 - 6/18/96
Lapse: 92 days
(t) Jamal Jones $31,075 6/24/96 - 2/3/98
25,190 - 2/13/96
2,995 - 3/20/96
0 - 3/23/96
Lapse: 1 year + 273 days
(u) Sook Ja Lee $4,997 7/17/96 - 11/12/96
0 - 11/13/97
Lapse: 119 days
(v) Jong Da Lee $1,397 7/17/96 - 11/12/96
0 - 11/13/96
Lapse: 119 days
(w) B. Lanier $1,535 8/12/96 - 8/19/96
735 - 9/17/96
Lapse: 39 days
(x) B. Graham $900 8/20/96 - 11/12/96
0 - 11/13/00
Lapse: 85 days
(y) Misook Lee $5,250 9/30/96 - 10/22/96
2,065 - 11/20/96
420
(z) Pyong Hong $4,960 10/10/96 - 12/19/96
Lapse: 70 days
(aa) Rose Williams $7,331 10/29/96 - 12/3/96
Lapse: 35 days
(bb) Evelyn Williams $6,134 10/29/96 - 12/3/96
Lapse: 35 days
(cc) Lisa Cohen $8,949 11/20/96 - 12/9/96
2.056 - 12/26/96
1.056 - 1/5/97
540 - 1/10/97
0 - 1/13/97
Lapse: 54 days
(dd) Janina $16,008 1/6/97 - 2/3/97
Gawronski 482 - 3/5/97
0 - 3/6/97
Lapse: 60 days
(ee) Hun Chul Young $7,500 3/3/97 - 4/23/97
258 - 5/30/97
0 - 6/2/97
Lapse: 100 days
(ff) Vivian Simmons $518 3/13/97 - 4/7/97
29.974 - 5/9/97
27.974 - 5/23/97
26,139 - 5/28/97
25,927 - 5/29/97
22,697 - 5/30/97
22,587 - 6/2/97
784 - 6/5/97
0 - 6/6/97
Lapse: 85 days
(gg) Maureen $14,407 4/2/97 - 5/8/97
Clifford 3,618 - 5/29/97
148 - 6/5/97
0 - 6/6/97
Lapse: 65 days
(hh) Gwang Yi $4,312 4/30/97 - 7/24/97
0 - 7/25/97
Lapse: 86 days
(ii) Jung Yi $4,995 4/30/97 - 7/24/97
0 - 7/25/97
Lapse: 86 days
(jj) Viola Porter $76,884 5/8/97 - 6/23/97
0 - 6/24/97
Lapse: 47 days
(kk) Valeria Henry $4,150 6/13/97 - 8/18/97
675 - 8/22/97
445 - 8/26/97
0 - 8/27/97
Lapse: 75 days
(11) Rosita Warburton $5,043 7/24/97 - 7/31/97
2,000 - 3/12/98
0 - 3/13/98
Lapse: 232 days
(mm) Marie LeCoin $9,828 9/17/97 - 9/23/97
1,670 - 10/21/97
1,385 - 11/28/97
1,008 - 12/2/97
800
(nn) Elizabeth $5,431 10/6/97 - 12/1/97
Olszewski 1,224 - 12/4/97
1,075 - 12/8/97
170 - 3/23/98
0 - 3/25/98
Lapse: 140 days
(oo) Sung Hyum $14,675 10/28/97 - 12/19/97
Lim 2,926 - 1/5/98
0 - 1/6/98
Lapse: 70 days
(pp) Joseph Mulvey $63,093 10/28/97 - 11/14/97
13,093 - 3/31/98
12,733 - 4/2/98
0 - 4/3/98
Lapse: 187 days
(qq) Lawrence $40,648 10/28/97 - 11/24/97
Carola 8,649 - 3/31/98
1,273 - 4/2/98
0 - 4/3/98
Lapse: 187 days
(rr) Soon Hak Yoon $2,347 12/1/97 - 5/19/98
3,213 - 7/22/98
Lapse: 233 days
(ss) Mary Eldridge $14,710 12/12/97 - 12/22/97
10,976 - 1/6/98
6,976 1/9/98
6,116 1/15/98
0 1/16/00
Lapse: 35 days
(tt) Arlene Sealy $8,183 2/27/98 - 3/2/98
2,496 - 3/12/98
1,871 - 3/25/98
1,761 - 4/21/98
84

(8) In most of the aforementioned matters, the delay in not distributing to clients those portions of the settlement proceeds held by respondent was for the purpose of paying and/or negotiating the bills of third-party medical care providers and/or liens of insurance carriers. (N.T. II 176-93.)

(9) In negotiating some of these bills and/or liens, resolution could not be reached and litigation arose. In one such case, the Brant matter, judgment for the medical care provider was entered in an amount in excess of the amount escrowed by respondent, so respondent had to pay the additional monies out of his own pocket. (N.T. II 180-82.)

(10) Respondent was named executor of the estate of his father, Jacob Abrams, who died in July 1988.

(11) The assets of the estate poured over into a trust of which respondent was the trustee until 1999 (Abrams trust). The income beneficiary was respondent’s mother, Regina Abrams, and the residuary beneficiaries were respondent and his two sisters, Elaine Abrams and Janice Squares Weiner. At all times relevant hereto, the Abrams trust was with the Fidelity Investment Company.

(12)Respondent also held a durable power of attorney jointly with his sister Elaine Abrams, for his mother, who became mentally incapacitated sometime in the mid-1990s.

(13) In October 1992 and on various occasions between April 1995 and October 1997, respondent withdrew funds from the Abrams trust, as set forth in paragraph 15 below, as loans for his own benefit, without the knowledge and consent of the trust beneficiaries.

(14) Additionally, on two occasions Fidelity Investment Company withdrew funds from the trust and deposited the funds to respondent’s individual account, as follows:

4/13/95 $26,840.26
11/10/95 $27,711.12

These funds have been repaid to the trust as reflected in paragraph 15.

(15) The dates and amounts of the loans and payments follow:

DATE AMOUNT DATE PAID AMOUNT INTEREST RATE
(Per respondent)
a. 10/28/92 $40,255.58
6% 11/31/92 $40,255.58 P
6% 8/14/95 $ 625.00 I
for a and b
b. 4/10/95 $10,000
6% 4/26/95 $ 200.00 P
8/14/95 $ 9,800.00 I
c. 2/23/96 $12,000.00
8% to 8/1/97 11/18/96 $ 3,000.00 P
6% after 8/1/97 7/28/97 $ 2,320.00 I
for c, e-h
d. 9/5/96 $2,000.00
8% to 7/27/97
6% after 7/27/97
e. 9/11/96 $33,609.00
5% to 5/20/98 5/20/98 $ 3,300.00 I
6% after 5/20/98 10/5/98 $20,000.00 P
f. 2/5/97 $28,000.00
8% to 8/1/97 3/31/97 $ 4,000.00 P
6% after 8/1/97 7/28/97 $ 7,000.00 P
g. 7/21/97 $15,000.00
6%
h. 7/28/97 $27,000.00
6%
i. 10/3/97 $10,000.00
6% 12/1/97 $ 170.00 I
12/1/97 $10,000.00 P
6/30/98 $ 2,100.00 I
Additional payments:
12/18/98 $ 6,891.00 I
4/6/99 $ 7,253.00 I
$ 1,037.00 P
7/8/99 $50,000.00 P
8/3/99 $40,000.00 P
8/13/99 $47,123.00 P
Total withdrawn
by respondent$ 177,864.58
by Fidelity $ 54,551.38
Total $232,415.96
Total paid Principal $232,415.96
interest $ 34,884.00
$267,299.58

(16) Respondent deposited the funds converted from the trust into the PNC attorney account and utilized the funds to pay outstanding fiduciary obligations.

(17) For most of these transactions, respondent failed to execute contemporaneous promissory notes setting forth his obligations to the trust.

(18) Respondent failed to account contemporaneously and promptly to the remaining beneficiaries for the transactions in the trust.

(19) Respondent failed to pay timely, adequate, and regular interest on the withdrawn funds and to repay the full amount of principal to the trust until August 1999, at which time restitution was completed.

(20) In June 1998, after having received notice of petitioner’s investigation into his handling of a client’s funds, respondent confessed to one of his sisters, Elaine Abrams, that he had been taking money from the trust. (N.T. 152.)

(21) If called to testify in this matter, Janice Squires Weiner, respondent’s other sister, would testify:

(a) In or about August 1998, after having received notice of petitioner’s investigation into his handling of the Abrams trust, respondent advised Ms. Weiner that he was being investigated by “the Bar Association” because of more than $100,000 he had withdrawn from the trust.

(b) Respondent stated that it would help him if she were satisfied so long as the funds were returned to the trust.

(c) Ms. Weiner said she needed to think about this and asked to see everything which respondent had provided to “the Bar Association.”

(22) In September 1998, respondent provided to petitioner and to his sisters documents relating to the trust, including, inter alia:

(a) Promissory note to himself as trustee under the will, dated July 28, 1997, in the amount of $70,000, at an interest rate of six percent, to be paid within two years, with no additional payment terms; and

(b) Promissory note to himself as trustee under the will, dated August 19, 1998, in the amount of $33,609, at an interest rate of six percent, to be paid within two years, with no additional payment terms.

(23) In or about September 1998, after reviewing the documentation provided by respondent evidencing trust withdrawals in excess of $100,000, Ms. Weiner retained counsel, Hepburn Willcox Hamilton & Putnam LLP to pursue an accounting of and restitution to the trust.

(24) Between September 1998 and August 1999, counsel from Hepburn Willcox negotiated with respondent to secure an accounting of the trust and restitution of the trust funds, and respondent cooperated therewith.

(25) In or about August 1999, respondent resigned as trustee of the Abrams trust in favor of his sisters and completed restitution to the trust as set forth in paragraph 15 above.

(26) The trust paid Hepburn Willcox counsel fees in the amount of $15,000 for their services as set forth in paragraph 24 above.

(27) Respondent has a history of treatment for depression since 1988.

(28) In 1989, respondent came under the care of his current treating psychiatrist, Dr. Thomas Benfield, for his depression.

(29) During the period from January 1995 to January 1998, Dr. Benfield’s ongoing diagnosis was chronic and recurrent major depression. (N.T. 1264.)

(30) Dr. Benfield’s treatment notes reflect that from 1989 to early 1998, Dr. Benfield questioned the possibility that respondent was suffering from Bipolar Type II illness. However, he did not definitely make this diagnosis until March 1998.

(31) At the hearing, Dr. Benfield explained that bipolar illness is an affective illness involving depression dispersed with periods of mania (Type I) or hypomania (Type II). Hypomania is an elevated mood involving increased confidence and risk-taking which in turn affects judgment. (N.T. 1 190-92.)

(32) At the hearing, Dr. Benfield expressed the opinion that during the period of respondent’s misconduct from 1995 to 1998, he was suffering with Bipolar Type II illness which affected his judgment such that “he may have made or done things” that he would not do now. (N.T. 1201-202.) Dr. Benfield further stated that he believed that respondent’s mental disorder had a causal relationship with his mishandling of the funds (N.T. I 259.)

(33) At the hearing, Dr. Benfield testified that respondent is currently under treatment and on lithium, and that his prognosis is very good. (N.T. 1204.)

(34) The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) lists symptoms of hypomania as an abnormally and persistently elevated expansive or irritable mood that lasts for at least four days; inflated self-esteem or grandiosity; decreased need for sleep; being more talkative or the pressure to keep talking; flight of ideas or the subjective experience that thoughts are racing; distractibility or having attention being too easily drawn to unimportant or irrelevant external stimuli; psychomotor agitation or an increase in goal-directed activities such as social, sexual or occupational; and excessive involvement in pleasurable activities that have a high potential for painful consequences. (N.T. 1207-11.)

(35) DSM-IV lists the criteria for diagnosing hypo-mania as follows: the disturbance in mood and the change in functioning are observable by others; the episode is associated with an unequivocal change in functioning that is uncharacteristic of the person when not symptomatic; the episode is not severe enough to cause marked impairment in social or occupational functioning or to necessitate hospitalization as there are no psychotic features; and substance abuse is not involved or contributing to the episode. (N.T. 1211-12.)

(36) At the hearing, Dr. Benfield conceded that during the period of respondent’s misconduct from 1995 to 1998, he treated respondent “very infrequently” (N.T. I 193), but on the occasions when he did see respondent, respondent did not exhibit any of the symptoms of hypo-mania. (N.T. 1227, 241-42.)

(37) Most of respondent’s character witnesses testified that they did not observe any emotional instability or inappropriateness on respondent’s part during the period of his misconduct. (N.T. I 82, 89, 123, 136 and 141.)

(38) At the hearing, respondent’s psychiatric expert, Dr. Robert Sadoff, testified that he had been retained by counsel for respondent to serve as an expert in this matter, and as such, Dr. Sadoff met with respondent in December 1998 for two hours and again in February 2001 for 75 minutes. (N.T. I 301-303.)

(39) At the hearing, Dr. Sadoff opined that at the time of his misconduct, respondent was hypomanic and his hypomania was a substantial factor in his misconduct. (N.T. 1315, 318-19.)

(40) Dr. Sadoff is a forensic psychiatrist who has written a book, “Forensic Psychiatry,” which outlines the procedures a psychiatrist should follow before rendering an expert opinion, such as interviewing the individual; conducting a mental status exam; reviewing all relevant records, reports, and test results; and interviewing relevant family members and friends. (N.T. I 320-30).

(41) At the hearing, Dr Sadoff conceded that while he interviewed respondent and conducted a mental status exam on respondent and he reviewed Dr. Benfield’s summary report and petitioner’s D.B.-7 letters, he did not review Dr. Benfield’s treatment notes or blood test results and he did not interview any family members or friends. (N.T. I 323-34.)

(42) Respondent has distributed or is currently in the process of distributing to clients all remaining portions of settlement proceeds held by respondent.

(43) Respondent has made full restitution to the Abrams trust, including interest.

(44) Respondent was remorseful.

(45) Respondent has no record of prior discipline.

ffl. CONCLUSIONS OF LAW

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

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

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

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

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with the commingling and conversion of client funds and the delayed distribution of those funds to clients and third parties as well as the misappropriation and conversion of funds in a family trust, of which respondent was the trustee. Respondent cooperated with petitioner and entered into joint stipulations of facts admitting to professional misconduct and violation of R.P.C. 1.15(a) and 1.15(b). Respondent raises two arguments in his defense: first, that his misconduct does not rise to the level of a violation of R.P.C. 8.4(c), and second, that due to a psychiatric condition, he is entitled to mitigation pursuant to Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989).

With regard to the first issue as to whether respondent violated R.P.C. 8.4(c), respondent argues that there must be evidence of criminal intent in order to prove this violation and that petitioner failed to present such evidence. R.P.C. 8.4(c) provides that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Nowhere in this rule is there required proof of criminal intent to establish a violation of same. Further, Pennsylvania’s disciplinary case law does not mandate such a standard of proof. To the contrary, the precedent is clear that a demonstration of a pattern of using fiduciary funds for personal use is sufficient to establish a violation of R.P.C. 8.4(c). See Office of Disciplinary Counsel v. Monsour, 549 Pa. 482, 701 A.2d 556 (1997) and In re Anonymous No. 62 D.B. 97, 47 D.&C.4th 1 (1999).

In the instant case, the evidence is replete and respondent admits that, during the period from 1995 to 1998, he engaged in a pattern of dishonest conduct and misrepresentation relative to fiduciary funds. With regard to client funds, he used same for his own benefit; he failed to at all times segregate such funds from his own; he failed to make prompt distribution of such funds to clients and/or third parties; and he failed to at all times maintain adequate balances in his trust accounts. With regard to the Abrams trust, of which he was the trustee, respondent withdrew funds for his own benefit without notifying the other beneficiaries of his action or preparing the appropriate documents reflecting the withdrawal and repayment of these funds.

Next, with regard to the issue as to whether respondent is entitled to Braun mitigation, respondent argues that the evidence presented by his two medical experts overwhelmingly established that respondent suffered from hypomania, a psychiatric disorder, at the time of his misconduct and that this hypomania was a causal factor in his misconduct. The standard for mitigation, as set forth in Office of Disciplinary Counsel v. Braun, requires that respondent must establish the existence of a causal connection between the psychiatric condition and the misconduct by clear and convincing evidence and by the introduction of expert testimony. Some factors to consider in analyzing the sufficiency of the expert testimony are: does the expert provide a detailed case history of respondent; is the expert fully apprised of the details of the ethical misconduct; does the expert analyze respondent’s condition in the context of the misconduct; and does the expert’s treatment and prognosis include an opinion on the probability of the misconduct occurring in the future. See In re Anonymous No. 104 D.B. 95, no. 126 Disciplinary docket no. 3 (Pa. May 21, 1997). The expert’s testimony must be credible, persuasive and unequivocal. In re Anonymous No. 66 D.B. 96, no. 384 Disciplinary docket no. 3 (Pa. Feb. 10, 1998).

In the instant case, the testimony of both medical experts was not credible and persuasive. Dr. Benfield’s treatment notes are inconsistent with his expert opinion. Specifically, none of his notes reference any of the symptoms of hypomania or the criteria for diagnosing hypomania. While respondent did have a problem sleeping, this was a problem noted throughout the entire course of treatment and not just during the relevant time period from 1995 to 1998. Further, respondent was taking daily doses of No-Doz, a caffeine supplement, while on anti-depressant medication and against the medical advice of Dr. Benfield. Also, Dr. Benfield could not cite any examples of risk-taking behavior by respondent. In addition, Dr. Benfield infrequently saw respondent during the relevant time period from 1995 to 1998, a fact which renders his opinion even more incredible and unpersuasive. Next, in considering the above factors for analyzing the sufficiency of the expert opinion, Dr. Benfield was not fully apprised of the details of respondent’s misconduct until the fall of 1998, after his diagnosis of hypomania. (N.T. I 227.) Finally, Dr. Benfield’s expert opinion that respondent’s illness affected his judgment such that “he may have made or done things” that he would not do is equivocal at best and does not meet the standard of proof required of Braun and its progeny.

Dr. Sadoff’s expert opinion is equally rejected. In considering the above factors for analyzing the sufficiency of the expert opinion, Dr. Sadoff did not have a detailed case history of respondent. Before rendering his expert opinion, he only interviewed respondent on two occasions, conducted a brief mental status exam of respondent, and reviewed Dr. Benfield’s report and two of petitioner’s D.B.-7 letters. He did not review Dr. Benfield’s treatment notes; he did not review blood test results, which he conceded he would have wanted to see (N.T. I 323); and he did not interview any family members and friends, which he conceded is one of the evaluative tools he recommends in his textbook “Forensic Psychiatry” to be used before rendering an opinion. Thus, Dr. Sadoff’s opinion is based on limited and incomplete information which renders it unpersuasive. Finally, while Dr. Sadoff rendered an opinion on respondent’s need for future treatment, he failed to opine as to respondent’s future prognosis and the probability of misconduct occurring in the future. (N.T. I 317.)

As the foregoing demonstrates, the board finds that respondent’s expert evidence was not credible, persuasive and unequivocal and thus, respondent has failed to meet his burden of proof to establish psychiatric mitigation under Braun.

The remaining issue before this board is to determine the appropriate disciplinary sanction to be imposed upon respondent. Petitioner argues that a disbarment or a suspension for a greater amount of time than the 18 months recommended by the Hearing Committee is warranted. Respondent requests a stayed suspension and probation with monitoring. The board rejects both positions.

The appropriateness of a disciplinary sanction is based on the nature and gravity of the misconduct and the aggravating and mitigating factors present. In re Anonymous No. 85 D.B. 97, 44 D.&C.4th 299 (1999). This board has recognized, after review of many Pennsylvania Supreme Court opinions, that when an attorney engages in conversion of fiduciary funds, the discipline of suspension or disbarment will generally be imposed, the choice of which will depend on the mitigating or aggravating circumstances of the particular case. In re Anonymous No. 132 D.B. 88, 7 D.&C.4th 331 (1990) and In re Anonymous No. 61 D.B. 92, 19 D.&C.4th 494 (1993). In the instant case, this board finds that, unlike the lack of cooperation found in Office of Disciplinary Counsel v. Monsour, 549 Pa. 482, 701 A.2d 556 (1997) and the multiple and varying acts of misconduct found in In re Anonymous Nos. 73 D.B. 83, 4 D.B. 84 and 41 D.B. 84, 41 D.&C.3d 21 (1986), there are no aggravating circumstances warranting disbarment and the appropriate sanction for respondent would be a suspension.

A stayed suspension, as requested by respondent, would not be appropriate in this case. Respondent cites to three cases in support of his request; however, this board finds these cases to be inapplicable to this matter. In In re Anonymous No. 28 D.B. 93, (Pa. Sept. 9, 1996), a one-year stayed suspension, coupled with a two-year period of probation and financial and practice monitoring, was imposed after a finding of Braun mitigation. As noted above, this board does not find any Braun mitigation in the instant case and therefore rejects the application of the In re Anonymous No. 28 D.B. 93 ruling to this case. As for the two remaining cited cases—In re Anonymous No. 81 D.B. 90, 15 D.&C.4th 254 (1992) and In re Anonymous No. 111 D.B. 89, 9 D.&C.4th 526 (1990)—neither raised psychiatric mitigation nor resulted in a stayed suspension, and moreover, the first case did not find conversion and the second case involved a significantly lesser amount of money converted; therefore, these two cases are not analogous to the instant case.

The length of suspension warranted is also dependent upon the existence of any aggravating and mitigating factors. In addition to citing Monsour, supra and No. 73 D.B. 83, supra, both of which this board finds inapplicable as the instant case is not a disbarment case, petitioner cites In re Anonymous No. 62 D.B. 97, 47 D.&C.4th 1 (1999), in support of its contention that a lengthy suspension — at least more than the 18-month suspension recommended by the Hearing Committee, is warranted. The board finds that in No. 62 D.B. 1997, there were aggravating circumstances that are not found in the instant case. First, the attorney in that case was charged with not only commingling and converting fiduciary funds, but also neglect of matters and failure to communicate with clients. Respondent herein has not been charged with neglect or failure to communicate. Second, the attorney in that case failed to ever establish a trust account for client funds or maintain records of client funds; this is not the case with respondent. Finally, the attorney in that case had a history of three prior disciplinary actions. In the instant case, respondent has no record of prior discipline. He voluntarily testified at the hearing that he had received an informal admonition over 25 years ago. However, that record has been expunged since there have been no incidents since that time. Accordingly, this board finds that there are no aggravating circumstances in this case.

This board does find, however, that while Braun mitigation was not established, there are other mitigating factors in this case. First, as noted above, respondent in essence has no prior history of discipline. Second, he is extremely remorseful for his conduct. Third, he cooperated with petitioner in these proceedings. Fourth, while it is undisputed that respondent’s delay in distributing all settlement proceeds was generally harmful to clients and/or third parties, respondent presented evidence that in most cases, the delay was caused by the need to negotiate and/or litigate bills of third-party medical care providers and/or liens of insurance carriers. Respondent has already distributed or is currently in the process of distributing all remaining portions of settlement proceeds held by him. Finally, respondent began repaying the Abrams trust even before these proceedings were instituted against him and he made full restitution to the trust, including interest, by August 1999.

For the above reasons, the board concurs with the recommendation of the Hearing Committee and recommends a suspension of 18 months.

RECOMMENDATION

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

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

ORDER

And now, January 28,2003, upon consideration of the report and recommendations of the Disciplinary Board dated November 7,2002, it is hereby ordered that Ronald B. Abrams be and he is suspended from the bar of this Commonwealth for a period of 18 months followed by a two-year probation supervised by the Disciplinary Board pursuant to Rule 204(a)(4), Pa.R.D.E., and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Hoover v. Davila

      C.P. of Lawrence County,
    no. 10174 of 2003 C.A.

      Daniel S. Soom, for plaintiff.

      Francis Garger, for defendant Davila.

      Brian W. DelVecchio, for defendants Jurenovich, Uberti and Vermeire.
    November 20, 2003
   COX, J.,

The plaintiff in the instant case, Larry J. Hoover, appeals from the order of court dated August 25, 2003, which denied the petition to open or strike entry of judgment of non pros filed by the plaintiff. The petition sought to open a judgment of non pros entered April 29,2003. The parties were before this court for oral argument on the petition to open or strike entry of judgment of non pros on August 25,2003. On the same day, this court entered an order of court denying the petition to open or strike entry of judgment of non pros. Plaintiff then filed this timely appeal.

The plaintiff, acting pro se, filed a complaint against the above-captioned four defendants on February 12, 2003, and the complaint was subsequently reinstated by the prothonotary of Lawrence County on March 10,2003, and April 10, 2003. At no time, either at the filing of the complaint or within the 60-day time frame, did the plaintiff file the required certificate of merit as set forth in Pa.R.C.P. 1042.3(a). Due to the lack of the certificate of merit, on April 29, 2003, a praecipe for entry of judgment of non pros pursuant to Rule 1042.6 was filed with the prothonotary of Lawrence County and on that date a judgment of non pros was entered against the plaintiff, Larry J. Hoover, in favor of the defendants Michael J. Jurenovich D.O., Edward J. Uberti D.O. and David A. Vermeire M.D. On May 21,2003, the plaintiff, who had been representing himself pro se throughout the proceedings thus far, appeared in motion court before the Honorable Ralph D. Pratt, president judge, and presented a pleading entitled motion court petition dated May 21, 2003, which requested an extension of time to file the certificates of merit. At that time, President Judge Pratt concluded that the three defendants, Jurenovich, Uberti and Vermeire had already been dismissed from the case and issued a rule to show cause upon the defendant Davila to show why the requested extension of time to file a certificate of merit should not be granted. On June 16, 2003, the defendant Davila filed a timely response to the rule to show cause dated May 28, 2003. Subsequently, the plaintiff elected not to proceed pro se any further and obtained legal counsel, Daniel S. Soom, Esquire, who filed a petition to open or strike judgment of non pros on July 8, 2003, which contained certificates of merit dated July 3, 2003, to be filed against the defendants Jurenovich, Uberti and Vermeire as exhibits to said petition. No certificate of merit regarding the defendant Davila was filed at that time or attached to the petition to open or strike judgment of non pros. This court then scheduled an argument and hearing on the petition to open judgment or strike judgment of non pros and rule to show cause. Following argument, this court entered the order of court dated August 25, 2003, that denied and dismissed the petition to open or strike entry of judgment of non pros filed with respect to defendants Jurenovich, Uberti and Vermeire, and denied and dismissed the motion for extension of time for filing a certificate of merit against defendant Davila.

Plaintiff raises two assignments of error in his statement of matters complained of pursuant to Pa.R.C.P. 1925(b). First, plaintiff claims that this court erred in interpreting Pa.R.C.P. 1042.3(a) with regard to the time frame for filing a certificate of merit or granting an extension for filing. Second, plaintiff also claims that this court erred by finding that the factors for granting relief from a judgment of non pros pursuant to Pa.R.C.P. 3051 did not apply to this professional liability action. This court will address both issues raised.

First, plaintiff alleges that this court erred in finding that Pa.R.C.P. 1042.3(a) is clear and that the rule requires the certificate of merit to be filed within 60 days of the initial filing of the complaint. Plaintiff believes that the 60-day time period should begin to run from the date the complaint was reinstated.

The rule states in pertinent part, “In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint, or within 60 days after filing the complaint, a certificate of merit____’’Pa.R.C.P. 1042.3(a). When interpreting a rule, the principles set forth in Rules 102 to 108 shall be observed, unless the application of such principles would result in a construction inconsistent with the manifest intent of the Supreme Court. Pa.R.C.P. 101. Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or as are expressly defined by rule shall be construed according to such peculiar and appropriated or express meaning or definition. Pa.R.C.P. 103(a). [When] the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Pa.R.C.P. 127(b).

Plaintiff wishes for this court to interpret “within 60 days after filing the complaint” to mean “within 60 days after filing or reinstating the complaint.” After using the rules set forth above to interpret the meaning of the word “filing,” this court cannot subscribe to plaintiff’s interpretation. The term “filing” is not specifically defined within the Rules of Civil Procedure and thus it must be accorded its “common and approved usage.” “Filing” is a form of the verb “file” which in the context of this case means, “To deliver an instrument or other paper to the proper officer or official for the purpose of commencing an action or other proceeding.” Black’s Law Dictionary, fifth ed., p. 322. As the common and approved usage defines the term to mean the initial commencement of an action, the date upon which the 60-day time period must begin is the date of the initial filing.

The term “reinstated” is not specifically defined in the Rules of Civil Procedure. However, a reading of Pa.R.C.P. 401(b), which pertains to reissuing a writ or reinstating a complaint, puts the term in perspective. The rule states in pertinent part, “[The] prothonotary upon praecipe and .upon presentation of original process, shall continue its validity by reissuing the writ or reinstating the complaint. ...” (emphasis added) The reinstatement of a complaint does nothing more than to continue its validity from the time of the original filing until the time service is made. It does not imply that reinstatement is a new beginning in and of itself.

Therefore, this court finds that the word “filing” is clear and free from all ambiguity. To attribute any other meaning to the word “filing” or to add the words “or reinstatement” to the rule promulgated by the Supreme Court would be to disregard the letter of the rule under the pretext of pursuing the spirit of the rule. Such an interpretation would fly in the face of Rule 127(b). Therefore, this court finds that the 60-day time period for filing a certificate of merit or for requesting an extension of time in the instant case must run from the date of the filing of the complaint which, in this case, is February 12, 2003.

After determining that the 60-day time period for filing a certificate of merit or requesting an extension of time began on February 12, 2003, it becomes clear that the entry of judgment of non pros on April 29,2003 was not in error as the 60-day period would have ended on April 14,2003. Nor was it error to fail to grant an extension of time as the 60-day time period had already elapsed by the time the plaintiff sought the extension through his motion on May 21, 2003. The rule clearly states that, “The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend.” Pa.R.C.R 1042.3(d). It is no justification under the rule that plaintiff was proceeding pro se. The rule clearly states, “the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint, or within 60 days after the filing of the complaint, a certificate of merit____” Thus, by the time plaintiff filed his motion and sought legal counsel, the time for filing had already elapsed. Therefore, no error exists for failing to grant plaintiff’s motion for an extension of time as the motion was not timely filed.

The plaintiff next claims that this court erred by failing to consider the factors for granting relief under Pa.R.C.P. 3051. This court did not err.

Pa.R.C.P. 1042.6(a) states, “The prothonotary, on praecipe of the defendant shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate.” (emphasis added) The rule is clear and concise. If the defendant files a praecipe after the required time period and prior to the filing of the certificate of merit, the prothonotary is required to enter the judgment of non pros. There is no room in this rule for discretion.

Pa.R.C.P. 3051 applies to opening of judgments for “reasonable explanation or legitimate excuse for the inactivity or delay....” Pa.R.C.P. 1042.6(a) leaves no room for discretion, alternative interpretations or for reasonable explanations and excuses. Therefore, this court has held that Pa.R.C.P. 3051 does not apply to a judgment of non pros entered pursuant to Pa.R.C.P. 1042.6(a). Pa.R.C.P. 1042.1 et seq. were designed and adopted to directly confront the crisis surrounding medical malpractice claims in this Commonwealth. Without specific direction, this court will not interpret the language of these rules to permit a case to continue when the rules direct otherwise.

Furthermore, as Pa.R.C.P. 1042.3(a) applies to plaintiffs proceeding pro se as well as to those represented by counsel, this court finds that no reasonable explanation or legitimate excuse exists for the delay in filing the required certificates of merit.

For the reasons set forth, this court did not err in denying plaintiff’s petition to open or strike entry of judgment of non pros. Therefore, plaintiff’s appeal should be dismissed and the order of court affirmed.

ORDER

Now, November 20, 2003, the court directs that the attached opinion be filed to satisfy the requirements of Pa.R.A.P. 1925(c). The prothonotary of Lawrence County is directed to immediately transmit the record to the Superior Court of Pennsylvania and serve a copy of the opinion upon counsel of record, Daniel S. Soom, Esquire, Francis Garger, Esquire, and Brian W. DelVecchio, Esquire.

      . See generally, Pa.R.C.P. 76 and Pa.R.C.P. 1042.1.


author: MILLER, J.,

text:
    Frantz v. HCR Manor Care Inc.

      C.P. of Schuylkill County,
    no. S-2374-2002.

      Kenneth A. Wise, for plaintiff.

      Maria R. Granando, for defendant.
    December 12, 2003
   MILLER, J.,

Before the court are the preliminary objections of defendant, HCR Manor Care Inc., t/a Manor Care of Pottsville, to the complaint filed by the plaintiff, Mamie I. Frantz, individually and as executrix of the estate of Curtis L. Frantz Sr. her deceased husband. Plaintiff maintains that the quality of care delivered to the plaintiff’s decedent from the defendant fell below an acceptable standard of care resulting in Mr. Frantz’ death. Defendant is engaged in the business of providing nursing home services as a health care provider licensed by the Commonwealth with its principal place of business located in the City of Pottsville, Schuylkill County, Pennsylvania.

On December 18, 2000, plaintiff’s decedent was admitted to the defendant’s nursing home for respite care. Prior to his admission, plaintiff had been providing care to her husband at home with the assistance of Pinnacle Hospice Care. Respite care was recommended by Hospice to allow plaintiff to deal with her health problems brought on by the demands of being her husband’s primary care giver. Plaintiff’s decedent had been diagnosed with lung cancer in October 1999. His health slowly declined over time. Plaintiff’s decedent received hospice care on November 29, 2000 until his transfer to defendant’s facility on December 18, 2000. Plaintiff asserts that her husband’s health was stable but declining. Plaintiff’s husband was admitted to the facility after plaintiff, as her husband’s power of attorney, executed an admission agreement with defendant for her husband’s care during a respite period with a potential permanent placement. The first seven days of care were to be funded by hospice. Six days after admission, on December 23,2000, Mr. Frantz died while still residing at the defendant’s nursing home.

Plaintiff asserts that at the time of her husband’s admission he had the following: (1) reddened area on his buttocks commonly referred to as a pressure area also known as a stage one decubitus ulcer; (2) impaired lung capacity with a physician’s order for constant oxygen; (3) dietary needs requiring soft and pureed food which needs were discussed with defendant’s staff; (4) pain which required narcotic pain medication through a patch applied to his skin with physician-ordered medication for break-through pain control; (5) shortness of breath which required the administering of Ativan on an as-needed basis; (6) inability to walk and sit without support.

The complaint also avers that during the course of the decedent’s six-day stay at the nursing home the decedent was not provided with oxygen; suffered three falls; had no precautions to protect him from the falls until after the first two falls; was not provided with pureed or soft form food; was not turned and positioned to prevent the progression of the ulcer on his buttock; mouth care and hydration were not provided every two hours; nor was staff intervention provided to the decedent as required pursuant to the agreement. Plaintiff avers that this lack of care resulted in additional pain, suffering, humiliation and lessening of the decedent’s quality and quantity of life thereby hastening his death on December 23, 2000. Plaintiff initiated this action via writ of summons under date of December 16, 2002. The complaint was filed on February 11, 2003. Preliminary objections were filed on February 27, 2003. On April 28, 2003, plaintiff filed a second amended complaint. Preliminary objections and a brief were filed to the second amended complaint on May 15,2003. The plaintiff filed a timely brief and appendix opposing the preliminary objections. Plaintiff then requested oral argument. Oral argument was concluded on October 1,2003. At the parties’ request, an extension to submit supplemental briefs addressing issues raised during oral argument was granted. Respective supplemental briefs having been filed, this matter is now ripe for decision.

Plaintiff’s second amended complaint sets forth five counts: negligence, negligence per se, corporate liability, wrongful death in which punitive damages are requested, and survival action in which punitive damages are also requested. The preliminary objections sub judice are:

I. A demurrer to the negligence per se and negligence claims for violations of federal and state regulations.

II. Amotion to strike paragraphs 54(p) and (y) for lack of specificity.

III. A demurrer to corporate liability, and, in the alternative, a motion to strike the corporate liability allegations for lack of specificity.

IV. A motion to strike the punitive damages claims under the wrongful death and survival actions.

When reviewing preliminary objections in the nature of a demurrer, we must accept all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom as true. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. “Where any doubt exists as to whether a demurrer should be sustained it should be resolved in favor of overruling the demurrer.” Jackson v. Garland, 424 Pa. Super. 378, 381, 622 A.2d 969, 970 (1993), The Reverend J.E.J. Sr. v. Tri-County Big Brothers/Big Sisters Inc., 692 A.2d 582 (Pa. Super. 1997).

Under Pennsylvania law, preliminary objections should only be sustained in cases that are “free and clear from doubt.” Bower v. Bower, 531 Pa. 54, 57, 211 A.2d 181, 182 (1992). Therefore, “a court must overrule [objections in the nature of a demurrer] if the complaint pleads sufficient facts which, if believed, would entitle the petitioner to relief under any theory of law.” Wilkinsburg Police Officers Association v. Commonwealth, 535 Pa. 425, 431, 636 A.2d 134, 137 (1993). Since we must follow these principles, the defendant’s preliminary objections are sustained in part and overruled in part.

I. NEGLIGENCE PER SE

“The concept of negligence per se establishes both duty and required breach of duty where an individual violates an applicable statute, ordinance or regulation designed to prevent a public harm....” Braxton v. PennDOT, 160 Pa. Commw. 32, 45, 634 A.2d 1150, 1157 (1993). See Lutheran Distributors v. Weilersbacher, 437 Pa. Super. 391, 650 A.2d 83 (1994). In analyzing a claim based on negligence per se, the purpose of the statute must be to protect the interest of a group of individuals, as opposed to the general public, and the statute must clearly apply to the conduct of the defendant. There must be a direct connection between the harm sought to be prevented by the statute and the injury. Wagner v. Anzon Inc., 453 Pa. Super. 619, 627, 684 A.2d 570, 574 (1996). The Superior Court held that Wagner and other individuals in the class action were not entitled to maintain a cause of action for negligence per se based upon the defendant’s violation of the Philadelphia Air Management Code of 1969, because the purpose of the code was to protect the atmosphere of the City of Philadelphia and the general public as opposed to a particular class of individuals such as the plaintiffs.

In paragraphs 72-94 of the instant complaint, plaintiff alleges that defendant is liable under a theory of negligence per se for alleged violations of the Code of Federal Regulations and the Pennsylvania Code with regard to the plaintiff’s care including the following: 42 C.F.R. §483.10(b)(ll), §483.13(c); §483.15(a), (e), (g), (h); §483.20(a); §483.25(a)(l)(iv), (a)(3), (c)(2), (d)(1), (h)(2), (i), (j); §483.35(a), (b), (c), (d), (e); and §483.75(d)(l) and 28 Pa. Code 201 et seq. Congress enacted the Nursing Home Reform Law (NHRL) as part of the Omnibus Budget Reconciliation Act of 1987. OBRA revised the regulations of nursing homes subject to Medicare and Medicaid, subchapters XVIII and XIX of the Social Security Act, respectively. 42 U.S.C. §1395i-3 (Medicare) and 42 U.S.C. §1396r (Medicaid). In order to obtain federal reimbursement under Medicare and Medicaid, a state must establish an approved state plan for medical assistance in accordance with the federal guidelines. In order to do this, each state promulgates its own statutes and regulations for its long-term facilities; hence, Pennsylvania enacted the Health Care Facilities Act, 35 P.S. §448.101. However, our Commonwealth’s response to OBRA provides a much broader purpose to PHCFA as set forth in 35 P.S. §448.102:

“The General Assembly finds the health and welfare of Pennsylvania citizens will be enhanced by the orderly and economical distribution of health care resources to prevent needless duplication of services. Such distribution of resources will be furthered by governmental involvement to coordinate the health care system. Such a system will enhance the public health and welfare by making the delivery system responsive and adequate to the needs of its citizens, and assuring that new health care services and facilities are efficiently and effectively used; that health care services and facilities shall continue to meet high quality standards; and, that all citizens receive humane, courteous, and dignified treatment. In developing such a coordinated health care system, it is the policy of the Commonwealth to foster responsible private operation and ownership of health care facilities, to encourage innovation and continuous development of improved methods of health care and to aid efficient and effective planning using local health systems agencies. It is the intent of the General Assembly that the Department of Health foster a sound health care system which provides for quality care at appropriate health care facilities throughout the Commonwealth.”

The Superior Court in Cabiroy v. Scipione, 767 A.2d 1078 (Pa. Super. 2001), discussed the concept of negligence per se and held that it is the plaintiff’s burden to establish that the purpose of the particular statute is to protect the interest of a group of individuals as opposed to the general public, and whether the statute clearly applies to the conduct of the defendant, citing Wagner, supra. Cabiroy sought to enforce the federal standards of the Food and Drug Administration against a defendant physician arising out of that physician’s treatment of the plaintiff by injection of liquid silicone. In analyzing the claim on appeal and remanding to the trial court for a new trial on the issue of negligence per se, the court reiterated the principles set forth in Wagner and other cases holding “[t]he doctrine of per se liability does not create an independent basis of tort liability but rather establishes, by reference to a statutory scheme, the standard of care appropriate to the underlying tort.” Cabiroy, supra at 1082.

The Wagner court also relates that negligence per se is also recognized in the Restatement (Second) of Torts §286:

“The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part,
“(a) to protect a class of persons which includes the one whose interest is invaded, and
“(b) to protect the particular interest which is invaded, and
“(c) to protect that interest against the kind of harm which has resulted, and
“(d) to protect that interest against the particular hazard from which the harm results.”

However, Wagner holds: “Negligence per se does not apply where the purpose of the statute or regulation is to secure the individual’s enjoyment of rights or privileges to which they are entitled only as members of the public.” Pa. Suggested Standard Civil Jury Instruction, 2nd ed., vol. 1, §3.30.

Defendant cites Chalfin v. Beverly Enterprise Inc., 741 F. Supp. 1162 (E.D. Pa. 1989), for the proposition that failure to comply with the federal and state regulations is neither per se negligence nor evidence of negligence. However, Chalfin, supra, appears to have been overruled or at least distinguished by McCain v. Beverly Health and Rehabilitation Services Inc. t/a Phoenixville Manor, (2002 WL 1565526, E.D. Pa.). In extending the protections of OBRA to the plaintiff’s decedent against a nursing home, the McCain court in attempting to predict how Pennsylvania state courts would react to the same issue sub judice stated: “Courts in Pennsylvania have recognized that the absence of a private cause of action in a statutory scheme is an indicator that the statute did not contemplate enforcement of an individual harm. However, it is just an indicator or a factor to consider and does not necessarily preclude the statute’s use as a basis of a claim of negligence per se. A statute may still be used as a basis for a negligence per se claim when it is clear that, despite the absence of a private right of action, the policy of the statute will be furthered by such a claim because its purpose is to protect a particular group of individuals.” The McCain court then reviewed section 286 of Restatement (Second) of Torts requirements and held that “A nursing home resident, comes within the older person protections intended by OBRA and the Older Adult Protective Services Act (OAPSA), 35 PS. §§10225.302, 10225.303, 10225.309 and 28 Pa. Code §§211.10,211.11 and 211.12 and the regulations setforth in 42 C.F.R. §483. Moreover the statutes and regulations are directed at least in part, to obviate the specific kind of harm which was alleged to have been sustained: ‘pressure sores.’ 28 Pa. Code §211.10.” The court then dismissed the objection lodged by the nursing home, and allowed the plaintiff’s decedent to pursue the negligence action where plaintiff alleged her mother had died from pressure sores developed while a resident at the defendant nursing home over a period in excess of four years.

In plaintiff’s amended complaint, paragraph 72 reads as follows: “Although the statutes and regulations contained in the paragraph below do not necessarily provide a private cause of action, decedent was a member of a class of nursing home residents that the statutes and regulations were designed to protect. The statutes and regulations do establish a minimal standard of care relevant to nursing facilities licensed by the Commonwealth of Pennsylvania of which defendant is one.” By this averment it is clear that plaintiff is not attempting to impart a private cause of action. Plaintiff then has the burden of showing that the statute would be furthered by such a claim because its purpose is to protect a particular group of individuals. Plaintiff correctly directs the court’s attention to this same issue having been addressed by Dauphin County in Wheeler v. Beverly Enterprises, no. 6011-2001, 10/25/02 (Dauphin Cty. 2002), Diggs v. Susquehanna Center for Nursing and Rehabilitation, 35 D.&C.4th 373 (Dauphin Cty. 1996), and Northampton County designated as the “Griffith” decision with no number and term given. This is an issue of first impression for our court. All three of these cases cite McCain, supra, and section 286 Restatement (Second) of Torts for the proposition that the plaintiff has sufficiently stated facts to allow a negligence per se action to proceed past demurrer and into the discovery stage at the same time reserving the right to review the matter further after discovery is completed upon appropriate motion.

This court’s research, however, finds the opinion of Judge Dobson in Goda v. White Cliff Nursing Home, (no. 2002-1917 Mercer Cty., May 2003), to be on point. Judge Dobson held that OBRA was enacted “to improve the quality of care for Medicaid-eligible nursing home residents, and either to bring substandard facilities into compliance with Medicaid quality of care requirements or to exclude them from the program.” The court found that Mrs. Goda was a Medicaid recipient and a nursing home resident for which OBRA was intended to protect pursuant to the Restatement (Second) of Torts §286 analysis. However, Judge Dobson held “the only regulation alleged in the amended complaint that satisfies the first two elements of section 286 is 42 C.F.R. §483.250 which provides ‘the facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.’ ”

Judge Dobson further held: “The remainder of the OBRA provisions and regulations cited in the amended complaint may not be used to support a cause of action for negligence per se. These various provisions and regulations set forth goals for a nursing home to attain. For example, under 42 C.F.R. §483.25(c)(l) a facility must ensure that a resident who enters the facility without pressure sores does not develop pressure sores and under 42 C.F.R. §483.65 a facility must establish and maintain an infection control program. The court believes that the defendants’ failure to develop policies and procedures to attain the goals set forth in these provisions and regulations does not breach the requisite standard of care to establish a negligence claim, as a result Goda cannot use these provisions to maintain a cause of action for negligence per se. With respect to the issue of whether Goda can base his negligence per se claim upon PHCFA, this court concludes that PHCFA was not intended to protect a particular class of individuals. Therefore, Goda cannot base his negligence per se claim on this statute.”

We also hold that the intent of PHCFA was to have the Department of Health implement a system to enhance the delivery of health care services to promote public health. PHCFA does not apply to a particular class of individuals but instead to the general public. As such, the statute and the regulations promulgated thereunder as more fully set forth in 28 Pa. Code §201.1 et seq. do not meet the Restatement (Second) of Torts §286 analysis thereby precluding plaintiff from using the PHCFA regulations as a basis for the negligence per se claim. However, OBRA, in our analysis, was enacted to protect the interests of nursing home residents whether eligible for or receiving Medicaid or Medicare. The plaintiff’s decedent’s eligibility for Medicare or Medicaid is irrelevant for the practical effect of OBRA and indeed its intent is to improve the standard of care in nursing homes generally. We hold further that the regulations cited in the amended complaint appear to this court to have set goals to be attained by long-term, facilities such as the defendant facility rather than as exact standards of care with the notable exception of 42 C.F.R. §483.25(j) which provides “the facility must provide each resident with sufficient fluid intake to maintain proper hydration and health.” Accordingly, we sustain the defendant’s demurrer to plaintiff’s use of the aforementioned regulations as negligence per se except for 42 C.F.R. §483.25(j). That is not to say, however, that the plaintiff shall be precluded from utilizing the principles enunciated in the federal regulations in attempting to prove that the defendant failed to conform to the standard of conduct that would be expected of a nursing home for the protection of its residents against unreasonable risks, and the failure on the defendant’s part to conform to this standard under general principles of negligence as opposed to negligence per se. A failure to comply with the aforementioned regulations even though not negligence per se may constitute some evidence of negligence. See Brogley v. Chambersburg Engineering Co., 306 Pa. Super. 316, 452 A.2d 743 (1982), and Wood v. Smith, 343 Pa. Super. 547, 495 A.2d 601 (1985).

II. LACK OF SPECIFICITY

Pa.R.C.P. 1028(a)(3) provides that a party may file a preliminary objection for “insufficient specificity in a pleading.” Pa.R.C.P. 1019(a) requires plaintiffs to plead the material facts that support the claims. A complaint is sufficiently specific if it provides the defendant with enough facts to enable the defendant to frame a proper answer and prepare a defense. Commonwealth ex rel. Milk Marketing Bd. v. Sunnybrook Dairies Inc., 29 Pa. Commw. 210, 370 A.2d 765 (1977). Plaintiff’s averments that the defendant’s “failure to provide a sanitary and safe environment” and “such other standard of care breaches as discovery may reveal” as set forth in paragraph 54 p and y violate the aforementioned rule and are hereby stricken with plaintiff having 30 days to file a more specific complaint.

IE. CORPORATE NEGLIGENCE

Our court has reviewed the issue of corporate negligence, its history and applicability to hospitals and inapplicability to a physician group practice limiting itself to medical care and treatment related to obstetrics and gynecology. However, this issue of extending corporate liability to a nursing home has not been addressed by our courts of common pleas, the Superior or the Supreme Court of Pennsylvania. In Kendricks v. Zimmerman, no. S1351-02 Schuylkill County, Judge Stine relates the progression of the theory of corporate negligence in the health care field:

“The theory of health care corporate negligence was first adopted in Pennsylvania in the case of Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). Under the doctrine of corporate negligence, a hospital owes a direct duty to patients to ensure their safety and well-being. Id. at 339, 591 A.2d at 707. The duties owed by a hospital to a patient are divided into four categories:

“(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment...;
“(2) a duty to select and retain only competent physicians ...;
“(3) a duty to oversee all persons who practice medicine within its walls as to patient care ..and
“(4) a duty to formulate, adopt and enforce adequate rules and policies to insure quality care for the patients.”

Id. (citations omitted)

“In 1998, the Superior Court extended corporate negligence to health maintenance organizations (HMOs), recognizing the role HMOs play in providing total health care to their patients. Shannon v. McNulty, 718 A.2d 828, 835 (Pa. Super. 1998). Although the court found that HMOs do not specifically practice medicine, HMOs are involved in the daily decision-making which affects patient care, such as limiting the length of hospital stays, restricting access to specialists, restricting access to therapy, or preventing emergency room care. Id. The Superior Court stated, ‘[w]e see no reason why the duties applicable to hospitals should not be equally applicable to an HMO when that HMO is performing the same or similar functions of a hospital.’ Id. at 836. The appellate courts did not intend to extend corporate negligence responsibility to a physician group practice limiting itself to medical care and treatment related to obstetrics and gynecology. Raspaldo v. Sacred Heart Hospital, 54 D.&C.4th 432, 436 (Lehigh Cty. 2000).”

In holding that corporate negligence did not extend to a physician group under the circumstances of Kendricks, supra, Judge Stine describes the salient features to be utilized in determining the applicability of corporate negligence:

“(1) whether the plaintiff was restricted in plaintiff’s choice of plaintiff’s use of the physician and/or the physician group;
“(2) whether the defendant’s practice was more akin to a total health care institution such as a hospital as opposed to a physician group practice limited to a specific area of medicine.”

The Eastern District Court of Pennsylvania also reviews the history and the doctrine of corporate negligence as established in Thompson, supra, in Milan v. American Vision Center, 34 F. Supp.2d 279 (1998). The District Court predicted that under Pennsylvania law the doctrine of corporate negligence did not apply to an optometrist’s office as the corporate employer of the defendant optometrist. As in Judge Stine’s analysis, the Milan court opines that in extending corporate negligence to other health care professionals, the salient features are: (1) whether the health care corporation “plays a central role in the total health care of their patients”; (2) whether the patient is “constrained in her health care choices by the defendant”; (3) whether the patient is “given little or no say so in the stewardship of their care”; and (4) whether the defendant “involves themselves daily in decisions affecting their subscribers medical care.” The court concluded that optometrist’s offices play no gate keeping role in the total health care of its patients. “Like doctors’ offices in general, a patient entering an optometrist’s office does not forfeit legally or practically the ability to turn elsewhere for medical care. A hospital practically constrains a patient’s choice by inducing the patient to rely on its comprehensive services in times when the patient’s ability to make choices will be compromised.” Furthermore, the court notes that “a visit to an optometrist’s office generally does not require a patient to commit to a single corporate health care provider as a matter of medical necessity.”

In Dontonville v. Jefferson Health System, 2002 W.L. 59318 (E.D. Pa. 2002), the Eastern District Court, in reviewing the concept of corporate negligence’s applicability to a corporate health system including a hospital and physicians’ group as corporate entities, allowed the action to proceed, citing a state court of common pleas’ decision in Oven v. Pascucci, 46 D.&C.4th 506, 512 (Lacka. Cty. 2000), for the holding that corporate negligence is an evolving doctrine under Pennsylvania law, which theory is based upon the systemic or institutional negligence of the defendant itself rather than the conduct of individual employees. Of note, is the Superior Court’s nonprecedential memorandum decision in Stevens v. Pacopis and Ameriplan USA Dental Care, per Justices Stevens, Olszewski and Beck, PICS case no. 03-1828 (Pa. Super. 2003), wherein this Superior Court panel held that the defendant discount dental service provider was not liable for the dental negligence of Dr. Pacopis under the theory of corporate negligence because of its not evidencing the characteristics of a health maintenance organization.

All of the common pleas court decisions that we reviewed in the negligence per se section of this opinion dismiss the preliminary objections with regards to the plaintiffs’ assertion of corporate liability against the respective nursing homes and allow the suit to proceed on this theory through discovery. Likewise, we are constrained to dismiss the preliminary objection as to corporate negligence. The plaintiff has pleaded sufficient facts which, if believed, would entitle the plaintiff to relief under the corporate negligence theory. The plaintiff avers that the defendant in effect constrained the plaintiff’s choice by inducing the plaintiff to rely on the defendant’s comprehensive nursing home services when the plaintiff’s ability to make choices was potentially compromised, and the defendant is more akin to a total health care facility such as a hospital where the defendant involves itself daily in the decisions affecting the resident’s general comprehensive care. The defendant’s preliminary objection to corporate liability and lack of specificity are dismissed.

IV. PUNITIVE DAMAGES

We hold, as plaintiff contends, that the second amended complaint contains sufficient facts to state a claim for punitive damages under the survival action. Plaintiff notes that the recent Medical Care Availability and Reduction of Error Act (MCARE Act) enacted March 20,2002, recognizes that punitive damages may be imposed against “health care providers” for willful or wanton conduct or reckless indifference to the rights of others. 40 Pa.C.S. §1303.505. This standard includes reckless conduct where the actor knows, or has reason to know, of facts which create a high degree of risk of physical harm to another and deliberately proceeds to act, or fails to act, or exhibits a conscious disregard of, or indifference to, that risk. The Act specifically includes “nursing home” within the definition of health care provider. Section 1301.503. The punitive damage provisions of MCARE concerning nursing homes represent the union of existing common and statutory law. Existing case law, therefore, is instructive in addressing this issue.

Pennsylvania recognizes punitive damage awards in appropriate cases. Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment, and the like, which constitute ordinary negligence. Restatement (Second) of Torts §908, comment (b). It is incumbent on plaintiff to plead facts amounting to outrageous conduct, i.e., reckless indifference to the interest of others or wanton misconduct on the part of the defendant in order to support a claim for punitive damages. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980). The claim requires more than negligence, however gross. The Supreme Court in Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 543 (1943), described wanton misconduct as: “something different from negligence however gross,— different not merely in degree but in kind, and evincing a different state of mind on the part of the tort-feasor.” Since the purpose of punitive damages is not compensation of a plaintiff but punishment of the defendant and deterrence, the damages can be awarded only for conduct involving some element of outrage.

In Count IV plaintiff seeks punitive damages in the wrongful death action. Plaintiff contends that although the Wrongful Death Act does not mention “punitive damages,” it specifically allows for “other damages.” 42 Pa.C.S. §8301(c). Plaintiff also notes that the MCARE Act specifically states that: “a person who has sustained injury or death as a result of medical negligence by a health care provider must be afforded a prompt determination and fair compensation.” 42 Pa.C.S. § 1303.102 (4). This is contradicted by the decision in Walsh v. Strenz, 63 F. Supp.2d 548 (M.D. Pa. 1999), which holds that there is no statutory authority for punitive damages in wrongful death actions. Moreover, although the amendments to the Health Care Service Malpractice Act specifically allow for punitive damages in all medical malpractice cases, and the MCARE Act contains specific punitive damages provisions, wrongful death actions are excepted.

The purpose of Pennsylvania’s wrongful death statute is to compensate enumerated relatives for pecuniary loss in the form of lost earnings occasioned by death, as well as for services the decedent would have performed for the surviving family members. 42 Pa.C.S. §8301. The case of Walsh v. Strenz, supra, discusses, at length, the development of the law of wrongful death in Pennsylvania and the appropriate damage claims. Damages recoverable in a survival action include decedent’s pain and suffering, loss of gross earnings from date of injury until death, and loss of earning power, less personal maintenance expenses from time of death through decedent’s estimated working life span. 42 Pa.C.S. §8302. In comparison, damages recoverable in a wrongful death action have been limited to “pecuniary loss” of the enumerated survivors, as well as certain designated damages, not including punitive damages. Walsh v. Strenz, supra at 552.

Plaintiff contends that the legislature intended to provide for punitive damages in cases of death by reason of medical malpractice under amendments to the Health Care Service Malpractice Act and subsequently in passing the MCARE Act. No amendments, however, have been made to the Wrongful Death Act, supra, and this we find controlling. Therefore, the defendant’s fourth preliminary objection to punitive damages as asserted via the wrongful death action is granted, stricken from the complaint, and shall not be averred in the plaintiff’s third amended complaint.

Accordingly, we enter the foregoing order.

ORDER

And now, December 12, 2003, upon consideration of the preliminary objections filed on behalf of defendant, HCR Manor Care Inc. t/a Manor Care of Pottsville, and the supporting briefs to the plaintiff’s second amended complaint, it is hereby ordered and decreed that the preliminary objections are sustained in part and denied in part as follows:

(1) the demurrer to Count II dealing with negligence per se is sustained and Count II negligence per se is stricken except as to plaintiff’s averment of the standard set forth in 42 C.F.R. §483.25(j);

(2) the motion to strike for lack of specificity is sustained and paragraphs 54 p and y are stricken with leave to amend;

(3) the demurrer to Count III concerning corporate liability is overruled and dismissed;

(4) the demurrer to plaintiff’s request for punitive damages in Count IV concerning wrongful death is sustained and the plaintiff’s request for punitive damages in the wrongful death action is stricken; and,

(5) the demurrer to Count V pertaining to plaintiff’s request for punitive damages in the survival action is overruled and dismissed. Plaintiff shall have 30 days from the date of this order to file a third amended complaint.


author: NICKLEACH, P.J.,

text:
    Keesey v. Moro

      C.P. of Armstrong County,
    no. 1999-0752-Civil.

      Richard L. Ames, for plaintiffs.

      Kenneth Nichols, for defendants.
    November 13, 2003
   NICKLEACH, P.J.,

Before the court for disposition is the defendants’ motion for summary judgment.

FACTS AND PROCEDURAL POSTURE

This case began in June of 1999 with a complaint in equity. The defendants filed preliminary objections to that complaint for failure to state a cause of action. Specifically, the defendants argued that the plaintiffs had not pled facts sufficient to establish a record of property interests indicating that an easement extended across the Moro lands in favor of the Keesey lands. Additionally, the plaintiffs had not pled facts sufficient to support a claim of a similarly located prescriptive easement. An order of court was entered on December 22, 1999, sustaining the original prehminary objections and granting the plaintiffs an opportunity to cure those defects in pleading.

The plaintiffs then filed an amended complaint in this action. However, the defendants again raised preliminary objections arguing that similar defects existed in the amended complaint as had existed in the original complaint. Briefs and preliminary objections to the preliminary objections were filed by the parties, and argument before the court on the issues raised occurred on April 28, 2000. The court issued an opinion (incorporated herein by reference) and an order dated July 26, 2000, which once again sustained the defendants’ preliminary objections and specified that the plaintiffs had 20 days in which to file a second (and final) amended complaint.

The plaintiffs timely filed a second amended complaint. Once again, the defendants raised preliminary objections arguing that the plaintiffs failed to cure the defects contained in the amended complaint. A response to the preliminary objections and briefs were filed by the parties, and argument before the court on the issues raised occurred on November 30,2000. By adopting the broadest interpretation of the law and of the second amended complaint (including inferences drawn from the facts pled) this court overruled the preliminary objections and allowed the case to proceed. The instant motion for summary judgment followed on August 29,2002. Briefs have been filed and arguments have been heard on this motion, which is now ripe for decision.

The facts, undisputed or adduced by the plaintiffs (and supported by some evidence), which we take as true for the purposes of deciding this motion are as follows. The defendants’ land, consisting of three parcels conveyed with a combined description on one deed, is located on the bank of the Mahoning Creek, and is fronted by a public road. The plaintiffs’ two parcels, conveyed with separate deeds, are adjacent to one another and are located across the road from the defendants’ land. The plaintiffs claim that there exists an easement in favor of their parcels in the form of a path across the defendants’ land to access the creek, along with the right to maintain a boat dock in the creek. They claim this path was visible to the defendants at the time that the defendants took their interest in the land.

The plaintiffs trace their title for both parcels back to S.W. Comman, who conveyed what became the Keesey parcels in 1943 (tax map no. 060.18-01-03, recorded in 1943), and in 1954 and 1956 (combined to form tax map no. 060.18-01-04, both recorded in 1956). The plaintiffs claim their right to an easement based upon recitations in the relevant deeds indicating the “right to use the path leading from said land to Mahoning Creek” (quoting the 1943 deed), or similar words that do not provide a formal, specific legal description.

S.W. Comman is the common grantor in the parties’ respective chains of title. He conveyed the land that ultimately became the bulk of the defendants’ parcel by deeds made in 1952 and 1953 (combined to form the northeasterly two-thirds of tax map no. 060.00-06-19, recorded in 1952 and 1954 respectively). No deed in the Moro chain of title of fee interests from Comman contains any reference to the disputed easement.

The southwesterly portion of the Moro parcel was formerly the land of Gregg, not Comman. Although there exists some confusion as to the exact location of the easement (at least in terms of a formal legal description), the plaintiffs claim to have acquired their rights through Corn man (or by prescription). No one claims that Comman owned or attempted to convey an easement across Gregg land. Therefore, it is not necessary to fully develop the chain of title for that portion of the Moro parcel or explore the possibility that the plaintiffs’ rights could be tied to it. Court exhibit A, made from the relevant Armstrong County tax map, is attached hereto, [not published herein]

ISSUES

I. Whether the plaintiffs have failed to produce evidence sufficient to permit a jury to find a fact essential to their cause of action; namely, whether defendants’ chain of title and circumstances of the property placed them on notice of a valid record right of way in favor of the plaintiffs’ land.

II. In the alternative, whether the plaintiffs have produced evidence sufficient to permit a jury to find that a prescriptive easement exists in favor of their land, including findings of privity between themselves and certain prior adverse users.

DISCUSSION

Granting a motion for summary judgment is a serious act for a court because it ends a lawsuit before all parties have presented all of their evidence. Scopel v. Donegal Mutual Insurance Co., 698 A.2d 602, 605 (Pa. Super. 1997). Therefore, summary judgment may only be “granted where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law’____‘The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party’____ Summary judgment may be entered only in those cases where the right is clear and free from doubt.” Ducjai v. Dennis, 540 Pa. 103, 113, 656 A.2d 102, 107 (1995). (citations omitted)

Summary judgment may be granted for lack of evidence produced by the party who will bear the burden of proof as well as a lack of dispute over material facts. “The essence of the revision set forth in new Rule 1035.2 is that the motion for summary judgment encompasses two concepts: (1) the absence of a dispute as to any material fact and (2) the absence of evidence sufficient to permit a jury to find a fact essential to the cause of action or defense.” Pa.R.C.P. 1035.2, explanatory comment-1996, Rule 1035.2 Motion.

There is no indication that any easement ever existed in the series of deeds conveying the fee interests in the defendants’ land. However, these deeds are not the entire chain of title. For instant purposes, obvious use of an easement would create a duty of investigation. With respect to the 1954 and 1956 Cornman deeds to the Keesey s’ predecessors in interest, such investigation would not reveal a valid, but unrecorded (or improperly recorded), conveyance of an interest in the defendants’ land. Rather, it would have revealed a nullity since Cornman had already conveyed this interest in the Moro tract.

It is hornbook law that a grantor cannot convey greater rights than he has in the property being conveyed: no one can give what he does not have. Thus, the common grantor could not grant the right to cross the defendants’ land after he had conveyed that land in fee simple to someone else in 1952 and 1953. He conveyed land into the Moro chain of title in fee and without the burden of an easement before conveying land into the Keesey chain of title. The plaintiffs’ rights cannot in any way be based upon a chain of title to an easement that appears in their fee chain but which was not given them before severance and which does not appear in the defendants’ fee chain. Therefore, summary judgment must be entered in favor of the defendants on the issue of an easement by conveyance burdening the Moro land in favor of Keesey parcel no. 060.18-01-04.

However, the same analysis is not true for the parcel conveyed into the Keesey chain in 1943. That deed was recorded prior to any conveyance by Comman of the Moro land. As a purchaser, the defendants are charged with knowledge of all facts that diligent search would reveal.

“It is well settled that purchasers ... of real estate are affected not only by matters of which they had actual knowledge and by what appeared in the office of the recorder of deeds and in the various courts of record whose territorial jurisdiction embraced the land in dispute, but as well ‘by what they could have learned by inquiry of the person in possession and of others who, they had reason to believe, knew of facts which might affect the title.’” Sidle v. Kaufman, 345 Pa. 549, 557, 29 A.2d 77, 82 (1942) (quoting Salvation Army Inc. v. Lawson, 293 Pa. 459, 463, 143 A. 113, 114 (1928), and cited by Roberts v. Estate of Pursley, 718 A.2d 837, 843 (Pa. Super. 1998)).

Therefore, a grantee can lose his status as bona fide purchaser by such knowledge, even if the knowledge is constructive or implied as a matter of law. If a granteé is not a bona fide purchaser, he takes his title subject to any adverse interest thus discovered or discoverable.

With respect to the right to exclude others from the portion of the land constituting the easement, the Moros and their predecessors may not be bona fide purchasers, and thus, the vaguely worded and sloppily recorded easement in the 1943 deed may be valid with respect to them. If the path to the creek was, in fact, obvious when the parcels comprising what is now Moro land were conveyed, and if the respective purchasers had conducted a diligent search of the record of conveyances from Comman during the time when he did own the Moro land, then they would have discovered an adverse conveyance of an easement and determined its location by inspection of the ground. The plaintiffs are entitled to attempt to prove their case for record title to an easement burdening the Moro parcel in favor of Keesey parcel no. 060.18-01-03. Summary judgment on that issue is therefore improper.

In addressing the issue of an easement by prescription, we find that such an easement cannot possibly exist with parcel no. 060.18-01-03 as the dominant estate. Hostile and adverse use does not occur when a user has a legal right to an easement memorialized in a recorded conveyance, such as the 1943 deed. If use of the pathway and dock was sufficiently open and obvious to satisfy the requirements for an easement by prescription, then the various purchasers of the Moro parcel took with constructive notice of the 1943 conveyance of an easement in favor of parcel no. 060.18-01-03. Therefore, as a matter of law, any claim of a prescriptive easement benefitting the owners of this parcel must fail either for lack of openness of use or for lack of hostility of use. Summary judgment on the issue of a prescriptive easement in favor of this parcel will be entered in favor of the defendants.

With respect to parcel no. 060.18-01-04 as the dominant estate, we take as true the assertions that the disputed easement was used by the Keeseys since 1984, when they acquired the parcel, and that the various owners during the 21-year period immediately prior to commencement of this lawsuit similarly used the pathway and dock as well. Our examination will focus on the element of privity among these owners, which is critical and necessary to support any claim of ownership based upon adverse possession (and, by corollary, a claim for an easement by prescription) for the entire term of the limitations period. Castronuovo v. Sordoni, 357 Pa. Super. 187, 192, 515 A.2d 927, 930 (1986).

The deeds of conveyance among the various occupants during the limitations period include only the vaguest references to the location of the disputed easement. By the standard set forth in Baylor v. Soska, 540 Pa. 435, 658 A.2d 743 (1995), we find these references to be insufficient for the necessary tacking among these owners and inadequate to convey any choate or inchoate rights derived by adverse use.

The Supreme Court of this Commonwealth has held “that the only method by which an adverse possessor may convey the title asserted by adverse possession is to describe it in the instrument of conveyance by means minimally acceptable for conveyancing of realty that which is intended to be conveyed.” Baylor v. Soska, 540 Pa. at 441, 658 A.2d at 746. The facts of this case present an interesting twist. Above, we determined that the alleged existence of the path on the ground and the reference in the 1943 deed (in the defendants’ chain of title) could be sufficient for a record easement to exist. We believe that the strict rule of Baylor does not apply to constructive notice of a valid record interest in an ease-. ment. However, finding title by adverse possession or the existence of an easement by prescription involves state-sanctioned involuntary transfer of an interest property from one owner and vesting it in another. This serious act thus requires a more stringent standard under the law. Thus, we apply a different test to the claim for an easement by prescription than we did for an easement by conveyance.

In Castronuovo v. Sordoni, supra, a party claimed to have title to a parcel adjacent to, but outside the calls of, land deeded to her by her father. Part of the land within the deed’s calls was held to have been properly acquired by the claimant based upon her father’s adverse possession. When the father’s rights matured, he was free to convey those rights, and he did so by a deed that described the land in a legally sufficient manner.

However, other land (referred to in the opinion as parcel C) was outside the calls of the father’s deed to his daughter. The Superior Court held that the trial court had erred as a matter of law by allowing the claimant to tack the father’s period of adverse possession onto her own possession of parcel C. A deed does not create privity with respect to rights in land outside the description in that deed, even if the land is used in conjunction with the land inside the calls. This is so even if a grantee uses such a parcel in the same fashion as the grantor did. 357 Pa. Super. at 193, 515 A.2d at 930-31.

Similarly, the instant plaintiffs took title to lands with an appurtenant ill-defined easement through a series of deeds. Along with the land sufficiently described in their deeds, the plaintiffs claim to have used the poorly-defined, disputed easement. Again, we consider their use to meet the requirements for an easement by prescription and to be substantially the same as their predecessors during the limitations period.

The plaintiffs claim that they are in privity with the previous users at least as far back as 1978 (21 years prior to filing suit in 1999), based upon the following language: “This deed also conveys a right-of-way unto the grantees, their heirs and assigns, over land now or formerly of S.W. Comman et ux. Lying south of said lot and the township road for an outlet to Mahoning Creek as set forth in previous deeds of record.” (From the 1984 Hewitt to Keesey deed recorded at book 643, p. 340.) The deeds from Comman to Hewitt provide no additional details. There is no mention of course, width, type of traffic allowed, or any other information which would allow a surveyor to state with confidence that a particular spot is within the easement or not. Therefore, as a matter of law, the plaintiffs have failed to produce evidence which, if believed at trial, would be legally sufficient to prove their right to an easement by prescription, as is their burden.

An appropriate order will be entered.

ORDER

And now, November 13, 2003, the defendants having filed a motion for summary judgment, and after careful consideration of the record and arguments presented, and for the reasons stated in the foregoing opinion, the court finds that the plaintiffs cannot maintain a viable claim for an easement by prescription and cannot maintain a claim for a record easement benefitting one of their parcels. However, the claim for a record easement benefit-ting their other parcel is viable.

Now therefore, it is ordered, adjudged, and decreed that the motion for summary judgment be and hereby is denied on the issue of a record easement with the plaintiffs’ parcel no. 060.18-01-03 as the dominant estate and the defendants’ land as the servient estate. The motion for summary judgment is hereby granted in favor of the defendants on all other issues.