author: GILARDI, Member,

text:
    In re Anonymous Nos. 4 and 35 D.B. 79

      Disciplinary Board Docket nos. 4 and 35 D.B. 79.
    July 10, 1989
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GILARDI, Member,

Pursuant to rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

HISTORY OF PROCEEDINGS

Petitioner was disbarred with consent, by order of the Pennsylvania Supreme Court, on December 4, 1980. On June 2, 1987, petitioner filed the within petition seeking reinstatement to the bar.

The petition seeking reinstatement was referred to Hearing Committee [ ]. The hearing committee conducted a hearing on February 11, 1988. On January 26, 1989, the hearing committee unanimously recommended reinstatement.

The Office of Disciplinary Counsel objects to petitioner’s reinstatement on two grounds. Disciplinary Counsel contends that petitioner is not morally qualified to resume practice. Disciplinary Counsel also takes the position that the petitioner did not comply with rule 217, Pa.R.D.E. The case was briefed and oral argument was requested and scheduled.

On March 29, 1989, oral arguments were pre-sen ted to a. three-member panel of this board. The panel made its report and recommendation to the board at its April 7, 1989 meeting. This board, after an extensive and complete review of the entire record, including the report, findings and recommendation of the hearing committee, voted unanimously to recommend that the instant petition for reinstatement be granted.

FINDINGS OF FACT

The Disciplinary Board hereby adopts the findings of fact of the hearing committee. The facts are as follows:

(1) Petitioner, [ ], is an adult individual residing at [ ].

(2) Petitioner is age 42, having been bom November 2, 1946 at [ ].

(3) Petitioner is married to the same individual to whom he was married at the time of his disbarment. He does not have any children.

(4) Petitioner graduated from [ ] University Law School, [ ], Pennsylvania, in May 1972 with an LL.B. degree.

(5) On October 21, 1972, petitioner was admitted to the practice of law before the Supreme Court of Pennsylvania and was subsequently assigned Attorney Identification no. [ ].

(6) Petitioner initially engaged in the practice of law in approximately April 1973 in association with [A], a sole practitioner, and as a part-time assistant public defender for [ ] County, Pa., maintaining his offices at [ ] County, Pa.

(7) On or about October 1973, petitioner established his own private law office at [ ], Pa., and continued to serve as assistant public defender for [ ] County through 1976.

(8) From April 1973 to October 1980, petitioner practiced law with an emphasis in criminal law, representing clients in the criminal courts of [ ] County and its adjacent counties.

(9) During said period, petitioner exhibited skill in his criminal law practice and developed a regional reputation as an effective and competent criminal defense attorney.

(10) During said period, petitioner had a specific interest in criminal law and through application and experience, developed a high degree of competency.

(11) During said period, petitioner regularly undertook to represent civil clients on cases involving a wide variety of substantive law and on many of these occasions, required or was paid nominal retainer fees.

(12) Petitioner’s criminal law practice required him to be absent from his law office for extended periods of time including two weeks each month when he was assigned a separate courtroom in [ ] County to process continuously a substantial case load of criminal cases.

(13) During periods of absence from his law office, the office was staffed only by his secretary.

(14) During said period, petitioner accepted more cases, criminal and civil, than he could process efficiently within a reasonable time.

(15) During said period, petitioner, as more fully set forth in his prior disciplinary record, neglected matters entrusted to him (primarily civil matters), for extended periods of time and subsequently lied or misrepresented material facts to clients concerning their cases, permitted statutes of limitation to expire, and otherwise caused clients to be prejudiced or suffer financial losses.

(16) On September 3, 1980, the Supreme Court of Pennsylvania, at no. 257, Disciplinary Docket no. 1 (no. 4 D.B. 79 and no. 35 D.B. 79), issued an order, effective October 2, 1980, immediately suspending petitioner from the practice of law and entered a rule directed to him to show cause why he should not be disbarred.

(17) Petitioner received notice of his suspension on September 10, 1980.

(18) On approximately October 30, 1980, petitioner submitted a voluntary resignation from the Bar of the Supreme Court of Pennsylvania.

(19) Petitioner’s resignation referred to the complaint of [B].

(20) Petitioner’s resignation did not refer to the complaint of [C].

(21) [C] retained petitioner in early 1978 and while her complaint predates petitioner’s resignation, she did not make a complaint to the Disciplinary Board until late 1984 after receiving a notice from [ ] County that she owed personal property taxes on a judgment note she received from petitioner.

(22) By order dated December4, 1980, filed at no. 257, Disciplinary Docket no. 1, the Supreme Court of Pennsylvania disbarred petitioner pursuant to rule 215 of the Pennsylvania Rules of Disciplinary Enforcement.

(23) Petitioner received notice by letter dated September 10,1988 from Secretary of the Disciplinary Board of the requirement to comply with Pa.R.D.E. 217.

(24) Petitioner was reminded by letter dated October 17, 1980 from the Disciplinary Board of his failure as of that date to file information verifying his compliance with the rules concerning formerly admitted attorneys.

(25) By letter dated October 21, 1980 petitioner advised the Disciplinary Board:

(A) That his clients had been sent notices or had signed acknowledgments of notices in his office in the course of acquiring their files;

(B) That there were local clients who had failed to come to the office despite numerous phone calls to sign receipts, and certain clients could not be located;

(C) With explanation that he was not in a position to certify that all of his clients had received the requisite notice required upon filing of the suspension order;

(D) That he expected to have the information required to comply with his obligation on Monday, October 27, 1980 at the latest.

(26) On December 9, 1980, petitioner was notified again of his failure to file the required notices and statement of compliance.

(27) By letter dated March 6, 1981 from the Secretary of the Disciplinary Board, petitioner was again advised that the required notices and statement of compliance had not been filed.

(28) By letter of allegation dated September 2, 1982, petitioner was advised by the Office of Disciplinary Counsel of certain allegations, including the allegation that he had failed to comply with Chapter 91, Subchapter E, Formerly Admitted Attorneys, of the Disciplinary Board Rules.

(29) In response to said allegation letter, petitioner under letter dated September 21, 1982, admitted the statement of facts in the allegation letter and offered in mitigation the explanation that subsequent to being suspended, he was required by common pleas trial court to commence an extended murder case and continued the murder case throughout his final 30 days of practice and beyond the effective date of his suspension. In conjunction therewith, the trial court entered an order directing petitioner to conclude the murder case, including post-trial motions, beyond October 2,1980 when his suspension date became effective.

(30) In his response of September 21, 1982, petitioner again represented that the notices had been sent or made and that carbon paper copies of the same had been retained. He confirmed a prior representation made at an unknown time that the green certified mail return receipt cards had been lost. He represented that he had three separate folders of carbon copies of the notices sent and represented that he was sending the three folders of notices to the Disciplinary Board as evidence of his compliance with the requirement that notice be given to clients.

(31) By letter dated January 21, 1985, the Disciplinary Board advised petitioner of alleged misconduct in connection with legal matters of [C] during the handling of a legal malpractice case covering the period early 1978 to approximately October 22,1983.

(32) Petitioner admits certain misconduct with respect to [C’s] legal case that occurred prior to his suspension, including failure to file the lawsuit within the two-year statute of limitations and falsely representing to the client that it had been filed.

(33) Petitioner admits he continued, subsequent to his disbarment, to engage in misconduct on the [C] matter, including lying and making misrepresentations designed to placate [C] and deter her. from filing an additional complaint against him.

(34) Subsequent to his disbarment, petitioner did not represent to client [C] that he had been readmitted, but probably indicated he would be or expected to be readmitted to the practice of law.

(35) Petitioner’s client, [C], knew petitioner had been disbarred as a result of reading it in the newspaper and conversations with petitioner.

(36) Petitioner did not send notice of his disbarment to client [C] and continued to hold her file for an extended period following his suspension/ disbarment, returning it sometime in 1983.

(37) Client [C] suffered pecuniary loss as a result of petitioner’s failure to file a malpractice claim against the estate of a deceased lawyer prior to the expiration of the statute of limitations.

(38) The [C] matter involved a personal injury claim that arose in 1976 and was being handled by a [ ] County attorney who subsequently died in 1977. Neither he nor his estate protected the claim.

(39) Client [C] knew petitioner was disbarred but, nevertheless, permitted him to hold her file, did not consult another attorney, continued to consult with him, consulted another attorney in his company, and accepted the meaningless judgment note in lieu of any other action.

(40) Attorney [D] did consult on the case either at the request of [C] or petitioner, but did not accept the case. Petitioner represented to [C] that attorney [D] had agreed to handle the case, which he knew to be a lie.

(41) Attorney [D] advised [C] directly in October 1983 that he was not involved in the case.

(42) On or about October 22, 1983, when confronted by [C], petitioner admitted substantially the true facts of the situation and executed a judgment note in the amount of $500,000 promising to pay it at some future time.

(43) Upon determining petitioner’s misconduct in October 1983, [C] did not make a formal complaint.

(44) The substantive value, if any, of [C’s] claim for malpractice against the estate of a deceased attorney is unknown. The amount of $500,000 was not a realistic valuation of the malpractice claim.

(45) Petitioner was not able to pay $500,000 at the time he executed the judgment note and had no reasonable basis to believe that he could pay the sum or any part of it in the future. [C] knew petitioner could not pay it.

(46) On October 22, 1983, in conjunction with the judgment note, petitioner and [C] entered into an agreement that if an insurance company paid [C], the judgment note would be deemed a nullity. At the time that agreement was signed, petitioner did not have any insurance policy which would cover the claim of [C] and any other source of insurance coverage was improbable. There was no realistic basis for the agreement.

(47) In May 1984, [C] received notice that she would have to pay personal property tax on the $500,000 judgment note.

(48) In late 1984, [C] communicated her allegations of petitioner’s wrongdoing to the Office of Disciplinary Counsel.

(49) On February 11, 1985, the Office of Disciplinary Counsel received petitioner’s handwritten reply, admitting various allegations of misconduct in the [C] matter and admitting various violations.

(50) Petitioner’s misconduct in the [C] matter subsequent to his suspension and disbarment was a continuation of the course of conduct in which he engaged for an extended period of time prior to his suspension and which led directly to his suspension/ disbarment.

(51) Petitioner’s misconduct appears to have been induced primarily by his preference for criminal trial work as opposed to his seeking pecuniary gain.

(52) Petitioner’s conduct prior to suspension is directly related to his poor judgment in accepting minor but difficult civil matters, inexperience, disorganization, and lack of supervision as opposed to seeking personal pecuniary gain.

(53) After receiving notice of his suspension on September 10, 1980, petitioner picked a jury from September 15 through September 19, 1980 and tried the homicide trial from September 22 through October 6, 1980, instead of undertaking to comply with the applicable rules.

(54) Subsequent to petitioner’s suspension, the Court of Common Pleas of [ ] County, Pa., knowing that petitioner had been suspended, nevertheless ordered him to continue to represent the criminal defendant involved in the aforesaid murder trial and to file post-trial motions beyond the effective date of the suspension.

(55) Petitioner’s required involvement in the aforesaid murder trial directly interfered with petitioner’s ability to comply with Pa.R.D.E. 217 and to personally supervise forwarding of required notices to clients.

(56) Upon receiving notice of suspension on September 10, 1980, petitioner substantially complied with the notice requirement of rule 217 by causing appropriate notice to be given his clients by mail, certified, return receipts requested or in person at his office evidenced by signed receipts.

(57) Substantially all of petitioner’s clients received notice of his suspension and from all appearances, their legal interests were protected.

(58) Petitioner did not file copies of the litigation and non-litigation notices of disbarment or suspension sent to his clients as required by Pa.R.D.E. 217(a) and (b) and Disciplinary Board Rule sections 91.91 and 91.92.

(59) As of the hearing date, petitioner had not filed a verified statement of compliance in the form required to be filed pursuant to Pa.R.D.E. 217(d) and Disciplinary Rule section 91.94.

(60) Petitioner did not file the required verification statement immediately following suspension/ disbarment because he was personally devastated by the situation and did not care at the time the statement was due.

(61) The post office return receipts for certified mail, green in color, were lost or misplaced in the transition of closing his office and storing his files.

(62) Prior to a hearing on reinstatement, petitioner located onionskin copies of notices that were in fact sent to a number of clients.

(63) Petitioner did not provide the Disciplinary Board carbon paper copies of notices sent to clients as promised.

(64) At. a later date, petitioner represented to the Disciplinary Board that the carbon paper copies of the notices had been misplaced.

(65) At hearing on this matter, petitioner provided a volume of carbon paper copies of the notices representing that they were a part of the total and had just recently been found in a storage room.

(66) The facts set forth in petitioner’s reinstatement questionnaire are found to be true and are incorporated herein by reference.

(67) The reinstatement questionnaire includes a statement verified and subject to criminal penalties that the required notices were sent and offers a requested explanation as to deficiencies.

(68) At hearing, petitioner testified under oath that notices were sent to all clients except [C], that receipts and carbon copies were lost or misplaced and that he had recently located a part of the carbon copies, all of which was consistent with the representations made by him to the Disciplinary Board previously.

(69) Upon receiving notice of his suspension, petitioner, nevertheless, dutifully spent over 21 days completing representation of a defendant in a serious homicide case.

(70) Subsequent to the effective date of his suspension, petitioner responded appropriately to the orders entered by the President Judge presiding over said homicide trial.

(71) Two witnesses testified that petitioner, prior to disbarment, had developed a reputation with both of the courts and his peers as a highly skillful criminal practitioner.

(72) Since his disbarment, petitioner has maintained his learning in the law as an investigator and legal assistant.

(73) Petitioner’s experience since disbarment has broadened his experience and learning in the law to fields other than criminal law.

(74) Petitioner has been regularly employed since 1984 as a legal assistant on an “as needed” basis by [E], an attorney practicing primarily business law.

(75) Attorney [F] of [ ], Pa., testified that he employed petitioner subsequent to his disbarment to aid him in legal research on criminal cases, appellate cases, and real estate work.. The witness testified he judged petitioner highly competent and totally reliable.

(76) Attorney [A] of [ ], Pa., testified petitioner has worked as a legal assistant in the general practice of law with him since 1986 and is knowledgeable in the law, reliable, and trustworthy.

(77) Attorney [A] testified that petitioner enjoys a strong reputation in [ ] County, Pa., for honesty and integrity, despite his past problems, and that he would entrust a matter of importance to petitioner.

(78) [G], a [ ] County practitioner and member of an eight-lawyer law firm in [ ] County, testified that petitioner, prior to disbarment, was an extremely able trial lawyer and was described by the President Judge of [ ] County as an outstanding cross-examiner.

(79) Since his disbarment, petitioner has worked as an investigator and legal assistant on occasion with and for attorney [G] who found his work to be extremely helpful.

(80) Subsequent to disbarment, petitioner has been utilized by the District Attorney’s Office of [ ] County to serve subpoenas and has been employed as a special investigator on at least one occasion.

(81) Petitioner has worked for members of the legal profession in the service of process and has been reliable and efficient.

(82) Several attorneys, the prothonotary of [ ] County, and a member of the clergy testified unequivocally that petitioner presently has a good reputation for honesty and integrity.

(83) Presently, petitioner works with Attorney [H] in the preparation of workers’ compensation cases.

(84) Several attorneys and members of the [ ] County, Pa., community testified to their belief that readmission of petitioner to the practice - of law would be a benefit to the community.

(85) The prothonotary of [ ] County testified that petitioner continues to have a good reputation for honesty and integrity within the county and that she believed his readmission to the practice of law would be an asset to the community.

(86) During his disbarment, petitioner maintained and improved his learning of the law by working for other attorneys in research and preparation of briefs, reading advance sheets and legal periodicals, and attended a recommended seminar at [ ] Law School.

(87) Since disbarment, the Court of Common Pleas of [ ] County has appointed petitioner special investigator twice on behalf of criminal defendants.

(88) Petitioner attributes his past problems to an -inability to say no (accepting all cases) and his own ego (he could do it).

(89) Since his disbarment, petitioner has worked with various attorneys on civil RICO violations, criminal cases in both federal and state courts, and analysis and evaluation of workers’ compensation claims for an insurance carrier.

(90) Since his disbarment, petitioner has taken positive steps within his means to pay or reduce his outstanding debts.

(91) Two debts remain outstanding that are related to past misconduct, specifically a judgment note in favor of [B] in the amount of $12,500 and a judgment note in the amount of $500,000 payable to [C], referred to above.

(92) There are at least two personal obligations outstanding in a significant amount, one to the Internal Revenue Service for past income taxes and [I] in the amount of $22,000.

(93) Petitioner has been paying the Internal Revenue Service the sum of $250 per month in payment of past due income taxes. He has not paid on the other obligations because of a lack of funds.

(94) If readmitted to the practice of law, petitioner indicates:

(A) That he will not practice as a sole practitioner, but would prefer to be associated with a firm to assure the back-up and timeliness of office-related work;

(B) That courtroom time must be reduced;

(C) That regular contact with staff and other attorneys must be maintained to monitor the status of cases;

(D) That he must be selective in cases accepted.

(95) Petitioner exhibits understanding of the underlying causes that led to his disbarment, including excessive emphasis on trial work, desire for notoriety, lack of candidness with clients, failure to operate his office in an efficient businesslike way, and failure to confront and honestly resolve problems.

(96) Petitioner exhibits remorse for his past conduct and a resolves to avoid misconduct in the future.

(97) The hearing committee finds petitioner to have been candid in his testimony and his testimony to be highly credible.

(98) Petitioner does not have the financial means to pay his remaining outstanding debts in full prior to readmission and cannot reasonably be expected to have the credit to borrow the necessary funds.

DISCUSSION

“The primary purpose of our system of lawyer discipline is to protect the public from unfit attorneys and to maintain the integrity of the legal system.” Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). To achieve this purpose, sanctions must be imposed on lawyers who have engaged in ethical misconduct.

Disbarment is the most severe sanction that our court can impose on a member of the bar for professional misconduct. Disbarment terminates a lawyer’s privilege to practice law for a period of at least five years. Even though disbarment is reserved for the most egregious cases, a disbarred attorney may apply for reinstatement. But “there is no basis for an expectation by the disbarred attorney of the right to resume practice at some future point in time.” Office of Disciplinary Counsel v. Keller, supra. Simply put, disbarment “represents a termination of the license to practice law without a promise of its restoration at any future time.” Keller, supra.

Disbarment can be voluntary or involuntary. An involuntary disbarment occurs where the Supreme Court imposes the sanction of disbarment, for lawyer misconduct, after the case has been litigated through the disciplinary system. Rulé 215 of the Rules of Disciplinary Enforcement provides for voluntary disbarment. Rule 215 permits an attorney who is being investigated for professional misconduct to submit his or her resignation' as an attorney providing, inter alia, that he or she acknowledges that the material facts upon which the complaint is predicated are true, and he or she agrees that an order of disbarment by consent may be entered by the Supreme Court. See Pa.R.D.E. 215.

Here, petitioner, who was disbarred with consent by order of the Supreme Court, now seeks reinstatement. In order for petitioner to gain reinstatement to the bar of the Supreme Court of Pennsylvania, he has the burden of demonstrating, by clear and convincing evidence, that he has both the moral qualifications and the competency and learning in the law required for admission to practice in this commonwealth. In addition, he has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar, or the administration of justice, nor subversive of the public interest. See Pa.R.D.E. 218(c)(3)(i).

Because the purpose of lawyér discipline is not punishment, readmission of a disbarred lawyer may be appropriate. When a disbarred attorney seeks reinstatement:

“[T]he threshold question must be whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon ‘the integrity and standing of the bar or the administration of justice nor subversive of the public interest.’ Pa.R.D.E. 218(c)(3)(i).” Office of Disciplinary Counsel v. Keller, supra.

We start our analysis of the threshold question with the observation that petitioner’s problems were caused, in large measure, by his inability to manage his time, his case intake, and his case load. Once his situation became unmanageable, his troubles compounded. When petitioner consented to disbarment, he took his first step towards rehabilitation. The restoration process started with petitioner’s acknowl-edgement of his misconduct. But has the rehabilitation process been completed? The proof of petitioner’s rehabilitation is demonstrated by his acknowledgement of his misconduct, his acceptance of responsibility for his misconduct, and his present understanding of the causes of his misconduct. We conclude that the petitioner will now be able to avoid the pitfalls that led to his disbarment. Petitioner’s misconduct was serious, but was not so shockingly aberrant and outrageous so as to preclude reinstatement.

We have examined the nature and magnitude of petitioner’s underlying misconduct. We have concluded that the record demonstrates by clear and convincing evidence that petitioner has been successfully rehabilitated. As the hearing committee observed: “It is apparent [from the record] that the community in which he practiced and now lives has forgiven his transgressions.” Hearing committee report at 36. Accordingly, the board concludes that petitioner’s reinstatement will not have a detrimental effect upon the integrity and standing of the bar. Likewise, we conclude that petitioner’s reinstatement will not detrimentally affect the administration of justice, and his reinstatement will not be subversive of the public interest.

At this point, we must examine whether the disciplined attorney is now morally fit and technically competent to engage in the practice of law.

The record is clear and convincing that the petitioner possesses the necessary competence to resume the practice of law. In fact, the Office of Disciplinary Counsel does not challenge petitioner’s competence. The Office of Disciplinary Counsel acknowledges “that petitioner possesses the requisite competency and learning in the law to be readmitted to practice.” Office of Disciplinary Counsel’s brief on exceptions at 14.

We must now make an inquiry into the petitioner’s moral fitness to resume the practice of law.

Petitioner must prove by clear and convincing evidence that he possess the moral qualifications necessary to practice law, and that his reinstatement will not be detrimental to the integrity of the bar or public interest. Pa.R.D.E. 218(e)(3)(f). At the February 11, 1988 hearing on this matter, petitioner presented a number of witnesses who attested to his high moral character and the benefit that his reinstatement would provide for both the bar and the public. Attorneys [E], [F], [A], [G], and [H], as well as Reverend [J], a Catholic priest, and [K], the prothonotary of [ j County, testified that petitioner possessed the moral fiber and integrity necessary to practice law. All of these witnesses further stated that petitioner’s reinstatement would be beneficial to the bar, and would not be subversive to the integrity of the bar, or detrimental to the public interest in any way.

Attorney [E] testified that he knew of no one who would oppose petitioner’s reinstatement, and Reverend [J] characterized petitioner as a “man of integrity.”

Disciplinary Counsel did not present any witness who discredited petitioner. Based on our careful examination of the record and the report and recommendation of Hearing Committee [ ], we agree that petitioner has met his burden of proof. The record clearly and convincingly demonstrates that the petitioner does in fact possess the moral qualifications for reinstatement to the practice of law.

In summary, we believe that the record amply shows that the petitioner has rehabilitated himself over the past eight years, and that he will-be able to avoid the pitfalls that led to his misconduct. His conduct was not so egregious that reinstatement should be denied. We conclude that the petitioner is morally fit and technically competent to resume the practice of law.

In passing, it should be noted that the Office of Disciplinary Counsel objects to petitioner’s reinstatement because of petitioner’s continued misconduct subsequent to his disbarment. The board, as well as the hearing committee, has examined petitioner’s conduct during a considerable period of time after disbarment. The post-disbarment misconduct related to only one client. That client sought petitioner’s counsel even though she knew that the petitioner had been disbarred. Petitioner was attempting to placate the client concerning misconduct that occurred prior to his disbarment. Thus, the post-disbarment misconduct had its origins prior to petitioner’s disbarment. Even though petitioner’s post-disbarment misconduct is disturbing, it is not fatal to his petition for reinstatement. Viewing the record as a whole, this instance of post-disbarment misconduct should not ruin an otherwise exemplary rehabilitative effort.

The Office of Disciplinary Counsel also objects to petitioner’s reinstatement on the grounds that petitioner did not fully comply with Pa.R.D.E. 217, which requires a lawyer to promptly notify all clients whose cases are pending, and opposing counsel, of the attorney’s disbarment, suspension, or transfer to inactive status. The rule also requires the lawyer to file a verified statement with the board within 10 days stating that rule 217 has been complied with. The rule further requires the attorney to keep records which will prove his compliance with rule 217.

The Office of Disciplinary Counsel contends that petitioner’s failure to file a statement of compliance with rule 217, as well as his failure to file copies of notices to clients regarding his suspension, should act as a bar to petitioner’s reinstatement. Office of Disciplinary Counsel’s Brief to Hearing Committee [ ] at 10.

The hearing committee noted that petitioner was completing a murder trial at the time he should have been complying with Pa.R.D.E. 217. Petitioner was ordered to complete the trial by a common pleas judge. Petitioner “was serving the law, the local court, and the public by concluding a serious criminal case.” This does not excuse the petitioner from complying with the rule; however, “[i]t does indicate . . . that his first concern was not necessarily his own welfare.” Hearing committee report at 27-8.

The Disciplinary Board must confront the issue faced by the hearing committee: whether petitioner’s substantial compliance with Pa.R.D.E. 217 is sufficient for reinstatement. The hearing committee resolved this issue in petitioner’s favor. The committee found that petitioner had complied with the spirit of rule 217 because he had notified his clients of his suspension. Hearing committee report at 15. The hearing committee was also satisfied that petitioner’s reinstatement questionnaire, which includes a verified statement and subjects petitioner to criminal penalties if falsified, was satisfactory and acceptable evidence that petitioner complied with his duty to notify clients of his suspension. Hearing committee report at 15.

Petitioner did not send a notice of his suspension to one of his clients. However, the client involved was aware of his suspension. She knowingly chose to continue to seek his advice. We find, therefore, that petitioner substantially complied with all of the rule 217 client-notification requirements.

We further agree that petitioner fulfilled the important objective of the rule: notification of his suspension to his clients. At this point in time, petitioner can never fully comply with the literal mandate of the rule. Again, is petitioner’s substantial compliance with rule 217 sufficient to permit his reinstatement?

Petitioner explained at the reinstatement hearing that he was so upset at the time of his suspension that he failed to file the required papers with the disciplinary board. Although this does not excuse petitioner’s behavior, it explains his actions.

We concur with the hearing committee that petitioner should be reinstated. We do not dispute that petitioner failed to comply with the strict and precise letter of rule 217. However, reinstatement should not be denied in view of the consequences already visited upon the petitioner and in view of his substantial compliance with rule 217.

Petitioner has demonstrated by clear and convincing evidence that he should be reinstated to the practice of law.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully and unanimously recommends to the Supreme Court of Pennsylvania that the instant petition for reinstatement of [petitioner] to the practice of law in the Commonwealth of Pennsylvania be granted by this honorable court, and that the court direct that all necessary expenses incurred by this board in the investigation and processing of the instant petition for reinstatement be borne and paid for by said petitioner.

Messrs. Brown, Douglas, and Stoelker did not participate in the adjudication.

ORDER

And now, September 12, 1989, upon consideration of the report and recommendations of the Disciplinary Board dated July 10, 1989, the petition for reinstatement is granted.

Pursuant to rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.

Mr. Justice Papadakos dissents.

       Our construction of rule 217 is limited to the facts of the case presently before us.


source: Caselaw Access Project

author: KUHN, J.,

license: Public Domain

text:
    Commonwealth v. Wireman

      April 11, 1990

      Roy A. Keefer, district attorney, for the commonwealth.

      Jeffrey M. Cook, for defendant.
   KUHN, J.,

This case involves, to our knowledge, an issue of first impression in this commonwealth on the application of section 1543(b) of the Vehicle Code, 75 Pa.C.S. § 1543(b). On January 18, 1990, defendant appeared before the undersigned to tender a plea of guilty to a violation of section 1543, with the court to determine whether subsection (a) or (b) was applicable.

The record reveals that on June 23, 1988, defendant was placed on the accelerated rehabilitative disposition program as a result of being charged with driving under the influence, 75 Pa.C.S. §3731, on February 3, 1988. As a condition of ARD, defendant’s driving privileges were suspended for five months.

On February 16, 1989, defendant was convicted of driving under suspension (DUI-related), 75 Pa.C.S. § 1543(b), as a result of an incident occurring on September 9, 1988, while his license was suspended as part of his ARD program. On March 14, 1989, the Department of Transportation suspended defendant’s driving privileges for one year as a result of the February 16, 1989 conviction.

On October 20, 1989, defendant’s participation in the ARD program was revoked. He thereafter entered a plea of guilty to the February 3, 1988 DUI charge. Later, on October 20, 1989, defendant was caught driving again and charged with driving under suspension (DUI-related). It is this charge which is now before the court.

We further note that defendant’s license has not been restored to him since June 23, 1988.

On March 12, 1990, the undersigned concluded, on the basis of Commonwealth v. Nuno, 385 Pa. Super. 6, 559 A.2d 949 (1989), that defendant was guilty of violating section 1543(b) of the Vehicle Code on October 20, 1989. The mandatory sentence was imposed.

The subsequent procedural history appears confusing but, at all times, was intended by defendant to preserve his right to have the court reconsider its March 12, 1990 decision. The confusion arose because there was no time given between deciding the case on its merits on March 12, 1990, and the sentencing imposed immediately thereafter for defendant to file what would, in essence, be post-verdict motions.

On March 19, 1990 defendant filed a motion in arrest of judgment and request for supersedeas of sentence. The motions were denied for procedural purposes. In retrospect, we may have erred in that regard because no decision on the merits of the applicable subsection was made until March 12, 1990. On March 22, 1990, defendant filed a motion to modify or vacate sentence which was denied on March 29, 1990. Defendant orally requested a reconsideration. We immediately heard oral argument, rather than delay the matter, because an appeal had been filed on March 26, 1990. Essentially, we take this opportunity to allow consideration of defendant’s motion in arrest of judgment and his motion to modify or vacate sentence.

Defendant argues that he should only be found guilty of section 1543(a) for driving while his privileges were suspended pursuant to the action taken by DOT on March 14, 1989, which was not DUI-related. He contends that section 1543(b) is not applicable because, when he drove on October 20, 1989, he had not yet received actual notice of the DUI-related suspension which would arise out of his guilty plea and sentence entered earlier in the day. We agree with defendant that if he did not have actual notice that his license was suspended for a DUf-related offense, section 1543(b) is not applicable, Commonwealth v. Gamble, 376 Pa. Super. 590, 546 A.2d 681 (1988). The commonwealth suggests that defendant had notice.

Section 1543(b) of the Vehicle Code provides, in part:

“(b) Certain offenses — Any person who drives a. motor vehicle on any highway or trafficway of this commonwealth at a time when their [sic] operating privilege is suspended as a condition of acceptance of accelerated rehabilitative disposition for violation of section 3731 (relating to driving under influence of alcohol or controlled substance) . . . because of a violation of section . . . 3731 shall, upon conviction be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.”

Initially, defendant was not driving under the ARD suspension on October 20, 1989, because that suspension expired on November 23, 1988. Furthermore, the suspension in effect from March 14, 1989, was imposed under section 1543(c) for violating section 1543(b) and is not one of the enumerated convictions which triggers section 1543(b).

Defendant argues that actual notice of the imposition of a DUI-related suspension can only come from two sources: (1) DOT or (2) through surrender of license pursuant to section 1540. First, defendant received no notice from DOT that he was suspended for a DUI-related offense when he drove on October 20, 1989. Second, he had no license to surrender to the court or the district attorney on October 20, 1989, to make section 1540(a) applicable. Section 1540(a) provides, in part, that:

“Upon a conviction ... for any offense which calls for mandatory suspension in accordance with section 1532 . . . the court or the district attorney shall require the surrendér of any driver’s license then held by the defendant and shall forward the driver’s license ... to the department. The suspension . . . shall be effective upon a date determined by the court or district attorney or upon the date of surrender of the license to the court or district attorney, whichever shall first occur.”

Section 3731 is an offense calling for a mandatory suspension in accordance with section 1532. 75 Pa.C.S. § 1532(b)(3). Absent written notice from DOT or possession of a license to surrender on October 20, 1989, defendant contends that section 1543(b) is inapplicable.

The commonwealth relies upon Commonwealth v. Nuno, supra. There the court held that:

“When a person receives notice that their operating privilege is or will be suspended or revoked for a DUI-related offense, that person is subject to the penalties of section 1543(b). That person will be subject to the penalties of section 1543(b) throughout any current suspension or revocation and any subsequent suspensions or revocations until the end of their DUI-related suspension or revocation.” (emphasis supplied)

What notice is sufficient to advise one that he “will be suspended” for a DUI-related offense? The commonwealth suggests that when the court advised defendant, during his DUI plea colloquy on October 20, 1989, that his operating privileges would be suspended for 12 months upon conviction, such notice constituted actual notice sufficient to satisfy Nuno. However, upon reconsideration we conclude that the commonwealth, as did the undersigned originally, reads more in Nuno than was intended by the Superior Court panel. The facts in Nuno are significantly distinguishable from the case sub judice in that Mr. Nuno, while under suspension for non-DUI-related matters, received written notice from DOT on September 13, 1984, that a DUI suspension would commence on January 12, 1990. On August 8, 1987, he drove and was convicted under section 1543(b). Therefore, unlike defendant, Mr. Nuno was notified in writing by DOT that a suspension was in effect on a date certain, albeit in the future.

We acknowledge that when a police officer or a court notifies defendant that he is suspended, such notice constitutes actual notice sufficient to sustain a charge of driving under suspension. Commonwealth v. Concannon, 28 Adams Leg. J. 127 (1986). However, in such cases, DOT has already suspended the privileges but the written notice had not yet been served on the offender. Here, the court was not advising defendant that a suspension notice had been issued, only that a suspension by DOT would follow his DUI conviction. The distinction is significant.

In the alternative, the commonwealth tries to apply the requirements of section 1540(a) to this situation. It argues that if defendant possessed a license on October 20, 1989, that license would have been surrendered pursuant to section 1540(a) and the DUI-related suspension would have begun immediately thereafter. However, continues the commonwealth, just because defendant’s license was then being held by DOT, he should not be allowed to escape the penalty of section 1543(b). The logic of this argument is persuasive, however, the statutory authority is lacking. Neither section 1540, nor any other provision of the Vehicle Code, provides that a DUI-related suspension becomes effective immediately upon conviction if the offender’s license is being held by DOT. To conclude otherwise would violate the applicable principles of statutory construction. 1 Pa.C.S. §§ 1921(b) and 1928(b)(1).

Therefore, upon reconsideration of our earlier decision, we conclude that defendant has, fortuitously (from his perspective), “fallen through the cracks” of the Vehicle Code. We find that our earlier sentence must be vacated and a finding of guilt be entered under section 1543(a) only.

Accordingly, we enter the attached

ORDER OF COURT

And now, April 11, 1990, defendant’s motion to vacate sentence filed March 29,. 1990, is granted. Sentence entered March 12, 1990, is vacated and reversed. Defendant’s motion in arrest of judgment is granted. The undersigned finds defendant guilty of section 1543(a) of the Vehicle Code.

Defendant is directed to appear for sentencing on April 25, 1990, at 9:00 a.m., courtroom no. 2.

       Section 1540(b) provides that “ ... upon the suspension ... of the operating privilege of any person by the department, the department shall forthwith, notify such person in writing ... to surrender his driver’s license to the department for the term of suspension ... The suspension ... shall be effective upon a date determined by the department or the date of surrender of the license to the department if that date is subsequent to the department’s notice to surrender the license, whichever occurs first...”


author: WETTICK,, A.J.,

text:
    Equibank v. Schneider Inc.
    January 4, 1990

      John R. O’Keefe, for plaintiff.

      Joseph A. Katarincic, for defendants.
   WETTICK,, A.J.,

On January 20, 1989, a judgment by confession in excess of $11 million was entered against defendants. On February 22, 1989, defendants filed a petition to strike and/or open and for other relief from judgment by confession. On this same date, this court issued a rule upon Equibank to show cause why the judgment should not be opened and/or stricken and why other relief from judgment should not be granted. Equibank filed an answer to the petition.

On August 16, 1989, Equibank took a rule on defendants to show cause why they should not proceed to take depositions on disputed issues of fact or order the cause for argument on petition and answer. Immediately thereafter, defendants served on Equibank a motion to produce documents and scheduled a series of depositions.

Thereafter, Equibank served upon defendants a set of interrogatories, a request for production of documents and a notice scheduling the deposition of the principal of defendant corporations. Defendants filed a motion for a protective order that seeks to bar Equibank from proceeding with any discovery until the court has taken final action on the February 22, 1989 rule to show cause. This motion is the subject of this opinion and order of court.

Defendants base their motion for a protective order on their contention that the Rules of Civil Procedure do not provide for a respondent to engage in any discovery in connection with a court’s consideration of a rule to show cause why a confessed judgment should not be opened. Neither party cited any case law that has addressed this issue. Our research failed to reveal any case law. Consequently, we address this issue by looking to the Rules of Civil Procedure governing discovery and governing the opening of a confessed judgment.

The scope of the Rules of Civil Procedure governing discovery are set forth at Pa.R.C.P. 4001(a)(1). This provision states that the Rules of Civil Procedure governing discovery apply “to any civil action or proceeding at law or in equity brought in or appealed to any court which is subject to these rules.” This language, if given its ordinary meaning, covers any proceeding governed by the Rules of Civil Procedure. Explanatory Note -. 1978 to rule 4001 states that these rules governing discovery are intended to “embrace every conceivable form of action.”

The scope of discovery is set forth in Pa.R.C.P. 4003.1. The relevant portion of this rule reads as follows:

“Subject to the provisions of rules 4003.2 to 4003.5 inclusive and rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”

Defendants’ first contention is that no provisions within the Rules of Civil Procedure allow Equibank to engage in discovery. We find no merit to this contention.

This is a proceeding covered by the Rules of Civil Procedure so the rules of discovery apply according to rule 4001(a)(1). Thus, under rule 4003.1, Equibank may engage in any discovery that is relevant to the subject matter involved in the pending action.

Defendants’ next contention is that the opening of a confessed judgment is a post-judgment proceeding and that the Rules of Civil Procedure governing discovery are not applicable to such proceedings. This contention is also lacking in merit because the broad language of rule 4001(a)(1) governs post-judgment proceedings.

In Noris v. Jonnett, 23 D.&C. 3d 155 (1982), this court rejected the judgment debtor’s contention that the Rules of Civil Procedure governing discovery did not apply to proceedings to enforce a money judgment because the right of the judgment creditor to obtain discovery is specifically dealt with by rule 3117(a) of the Rules of Civil Procedure governing the enforcement of a money judgment. We concluded that the rules of discovery applied because of the broad language of rule 4001(a)(1), because rule 3117 was not adopted as a limitation on discovery but rather as part of an overall procedural structure for enforcing a money judgment and because there would be no rational justification for limiting a judgment creditor’s use of methods of discovery that are available to parties prior to the entry of the judgment. The same rationale applies to the present situation.

Defendants next argue that Equibank’s discovery at this stage of the proceedings is unnecessary and will cause unreasonable burden and expense to defendants. There is no discovery, according to defendants, that would be useful to a respondent in its efforts to defeat a petition to open a confessed judgment. Therefore, there is no reason why a petitioner should be required to undergo the burden and expense of responding to such discovery until it is certain that the case will be tried on its merits.

While there may be limited instances in which discovery relevant only for a trial on the merits of the action should be permitted while proceedings to open a confessed judgment are pending, we agree with defendants that such discovery ordinarily should not be permitted for the reasons that defendants advance. See rule 4011(b) which bars discovery that would cause unreasonable burden or expense. We, therefore, address defendants’ contention that there is no discovery that can be useful to a respondent in defeating a petition to open a confessed judgment.

Defendants base their contention on Pa.R.C.P. 2959(e) which describes the evidence a court shall utilize in opening a confessed judgment and the standard it shall apply.

“(e) The court shall dispose of the rule on petition and answer, and bn any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending deposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.”

The only issue for the court to decide, according to defendants, is whether the petitioner has presented evidence that would preclude a nonsuit. The petitioner has the burden of presenting such evidence. If the petitioner fails to do so, the court shall not open the judgment. Lazzarotti v. Juliano, 322 Pa. Super. 129, 469 A.2d 216 (1983). If the petitioner produces such evidence, on the other hand, the court must open the judgment. The case law is clear that the court may not weigh the evidence — the judgment must be opened where the evidence produced would be sufficient to prevent a directed verdict against the petitioner. Continental Bank v. Axler, 353 Pa. Super. 409, 510 A.2d 726 (1986). Thus, defendants claim that any evidence that a respondent would provide is irrelevant because the court would then be weighing the evidence rather than determining whether sufficient evidence has been produced to require the issues to be submitted to a jury.

We reject this argument. Through discovery, a respondent may obtain admissions, documents, and other evidence which establishes that the evidence upon which the petitioner is relying is insufficient for the issues to be submitted to a jury.

The following examples illustrate situations in which evidence that a respondent obtained through discovery would defeat a petition to open that would have otherwise been granted on the basis of the testimony which the petitioner offered.

(1) The seller confessed judgment because of the buyer’s alleged failure to accept and pay for goods which it contracted to purchase. The buyer’s petition to open is based upon the allegation that the goods were not delivered by December 10 as required in the contract. In support of his petition to open, the buyer relied entirely upon his deposition in which he testified that the goods were not delivered until January 15. On cross-examination the buyer acknowledged that X, a broker, was acting as his agent in this transaction and that the buyer never dealt directly with the seller. When asked whether X authorized the seller to delay shipping the goods until January 15, the buyer responded that X and he never had any discussions regarding an extension of the delivery date and that he does not believe that X would have extended this date without telling him. While this testimony, if unchallenged, would be sufficient, a court would likely reach a different result if the respondent presented unrefuted deposition testimony of X that he had advised the seller that the goods could be delivered anytime in January.

(2) The defense raised by the petitioner is that the building materials for which the judgment was confessed were never delivered. In support of its position, the petitioner presented the deposition testimony of its vice-president of operations who testified that she was responsible for the job, that she obtained daily records of all budding materials that were delivered, and that these materials were never delivered. If the respondent’s discovery produced a memorandum from the petitioner’s construction manager to the petitioner’s controller which stated that the materials had been delivered in satisfactory condition, and that payment should be made, this document (unless explained by the petitioner) would defeat the petition.

We next reject defendants’ contention that any discovery must be limited to deposition testimony. Defendants base this contention on Pa.R.C.P. 209 which provides only for the use of deposition testimony in petition and answer practice. However, rule 2959 governs the practice for opening a confessed judgment. Rule 2959(e) requires the court to consider any testimony, depositions, admissions, and other evidence.

Defendants’ final argument is also based on rule 209. It is defendants’ position that rule 2959(e) establishes.the standard that the court shall utilize in determining whether to open a confessed judgment and that rule 209 establishes the procedure. Rule 209, according to defendants, allows only the petitioner to engage in discovery.

Initially, we have difficulty with defendants’ contention that the procedure for opening a confessed judgment is governed by rule 209. Rule 2959 sets forth both a comprehensive procedure and the standards for striking and opening confessed judgments. Even the heading of the rule, “Striking Off or Opening Judgments; Pleadings; Procedure” indicates the comprehensive nature of this rule. Furthermore, rule 2959(e) is not entirely consistent with rule 209. As we previously stated, the type of evidence that a court may consider under rule 2959(e) — any testimony, depositions, admissions, or other evidence — is far broader than the evidence provided for in rule 209 — depositions.

The only issue that rule 2959 does not address is how the case shall proceed to argument in the event that the petitioner does not either proceed with the taking of testimony or list the case for argument on petition and answer. Consequently, rule 209 is applicable only as to that issue.

But even assuming that rule 209 establishes the procedure for a petition to open a confessed judgment, we find no merit to defendants’ contention that rule 209 does not allow the respondent to engage in discovery.. If the petitioner fists the case for argument on petition and answer, rule 209 bars discovery. In that case, discovery cannot be helpful to the respondent because the averments of fact set forth in the respondent’s answer (including denials based upon lack of knowledge or information) are deemed admitted. But the language of rule 209 does not otherwise suggest that only the petitioner may engage in discovery. The provision of rule 209 that allows the respondent to obtain a rule on the petitioner to take depositions on disputed issues of fact is intended to prevent the respondent from scheduling an argument on the petition and answer before the petitioner (who has the burden of presenting evidence on disputed issues of fact) has had the opportunity to take depositions. Its purpose is not to limit the evidence that a court may consider.

For these reasons, we enter the following

ORDER OF COURT

On this January 4, 1990, it is hereby ordered that defendants’ motion for a protective order is denied.

      . The February 22, 1989 order of court that issued the rule to show cause stayed execution proceedings on the confessed judgment including discovery with respect to assets. Thus, this court’s consideration of defendants’ motion for a protective order does not include any issues concerning a judgment holder’s right to discover a judgment debtor’s assets while proceedings involving a petition to open a judgment are pending.

      . Pa.R.C.P. 4001(a)(2) sets forth specific actions for which the Rules of Civil Procedure governing discovery shall not apply. Neither confession of judgment proceedings nor proceedings to open a judgment are included as exceptions to rule 4001(a)(1).


author: HILL, Member,

text:
    In re Anonymous No. 54 D.B. 88
    Disciplinary Board Docket no. 54 D.B. 88.
    November 6, 1989
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

HILL, Member,

Pursuant to rule 208(d) of the Pennsylvania rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to this honorable court with respect to the within petition for discipline.

HISTORY OF PROCEEDINGS

Respondent, [ ], Esq., was bom in 1927, was admitted to practice law in the Commonwealth of Pennsylvania in 1957. His office is located at [ ].

On June 3, 1988, Office of Disciplinary Counsel filed a two-charge petition for discipline against respondent. In charge one, respondent was accused of neglecting a legal matter, misrepresenting to his client the contents of the interrogatories, failing to promptly withdraw as the attorney upon discharge by his client, and failing upon request to promptly deliver the client’s file. In charge two, it was alleged that respondent neglected a legal matter and misrepresented the progress of the legal matter to his client. On July 20, 1988, respondent filed an answer to the petition for discipline.

On July 28, 1988, the matter was referred to Hearing Committee [ ] comprised of [ ]. An evi-dentiary hearing was held on November 16, 1988. Although a stipulation was agreed to by the parties, there was no stipulation that would support a finding of a violation of the Disciplinary Rules. At the hearing, Office of Disciplinary Counsel presented 10 exhibits and the testimony of three witnesses. Respondent appeared pro se, testified and presented one exhibit. At the conclusion of the November hearing, the hearing committee found that there was a prima facie violation of at least one of the Disciplinary Rules. It was then determined that an additional hearing would be held for the purpose of receiving evidence with regard to the type of discipline to be imposed.

That hearing was convened on December 5, 1988, at which time Office of Disciplinary Counsel presented two additional exhibits. Respondent testified but offered no exhibits. At the close of the hearing it was agreed that briefs would be submitted to the hearing committee concerning the alleged rule violations and the type of discipline to be imposed. Petitioner filed a brief on February 10, 1989. Respondent did not file a brief.

The hearing committee filed its report on June 5, 1989 and recommended public censure. Neither petitioner nor respondent filed exceptions to the hearing committee report. Thereafter, the matter was referred to board member Frederick Wells Hill, Esq., for review and recommendation. On July 27, 1989, the matter was adjudicated by the board at its regularly scheduléd meeting.

FINDINGS OF FACT

Charge One The [A] Case

On September 19, 1982, [A] sustained personal injuries in an automobile accident with a vehicle driven by [B], while she was a passenger in a vehicle driven by [C]. In January 1983, respondent agreed to represent [A] on a contingent fee basis. The fee arrangement was not reduced to writing and no retainer was requested or paid.

In September 1983, respondent orally advised [D] insurance claims representative [E], insurer of [C], that respondent would send [E] a letter of representation, and demand for settlement on behalf of [A]. Thereafter, because respondent failed to send this letter, [E] wrote a letter dated October 7, 1987, indicating he would make direct contact with [A] and begin negotiations with her if he did not hear from respondent. By letter dated October 11, 1983 to [E], respondent advised that he was not in a position to make a demand on behalf of [A] because he did not possess sufficient medical information on his client, as she was still being treated by her chiropractor.

On October 13, 1983, respondent met with [A] in his office to further discuss her accident. Between this October 1983 meeting and June' 1984, respondent had very little contact with [A] concerning the status of her case. On séveral occasions, calls to respondent’s office by [A] were unretumed.

After not hearing from respondent, [A] sent a registered letter, dated June 12, 1984, which letter was received by him. In that letter, [A] stated that although she wanted respondent to continue his representation of her, she wanted and expected to be kept advised of his progress in the case. She also indicated that if respondent were unwilling or unable to keep her advised, she would “seek other al-tematives.” By letter dated June 28, 1984, respondent advised [A] that he would take immediate steps to settle the case, and that he would schedule a meeting with the adjuster within the next two weeks.

On August 15 and September 27, 1984, respondent spoke with [A] and discussed her treatment with the chiropractor. On September 14, 1984, almost two years after the accident and 19 months after he undertook [A’s] representation, respondent filed a praecipe for writ of summons against [C] and [B]. This was only a matter of days before expiration of the applicable two-year statute of limitations. However, respondent failed to properly fill out the instructions to the sheriff for the writ to be promptly served. Respondent did not have the writ served until May 1985.

Regarding the passage of time from his undertaking representation of [A] and filing the writ, respondent knew that the applicable statute of limitations was two years, and he admitted that there was “no reason” for not filing the writ earlier. Perhaps more importantly, [A] was not aware that prior to September 14, 1984, respondent had not commenced the legal action. In fact, she learned of the date of filing when she called the courthouse to inquire about the case.

By letter dated December 27, 1984, respondent was informed by [A] of her decision to retain Attorney [F] as alternate counsel, and [A] demanded the return of her file. Attorney [F] wrote respondent a letter dated January 28, 1985, requesting that he forward the [A] file as soon as possible.

Respondent wrote to [A] on January 29,1985, and offered numerous reasons why she should continue with his representation. He indicated that he had accumulated a “substantial file containing a great deal of correspondence and medical opinions” relative to her condition, that he had commenced a lawsuit on September 14, 1984 on her behalf “in order to prevent the running of the statute of limitations” and that because of his actions, respondent was “quite certain that within the next four or five weeks reasonable settlement offers could be presented to [A] for [her] consideration.” [A] allowed respondent to continue as counsel on her behalf.

On March 6, 1985, the defense caused a rule to file complaint to be issued and on April 2, 1985, respondent filed a complaint on behalf of his client.

On May 8, 1985, counsel for [C], [G], Esq., had respondent served with interrogatories numbered 1 through 33. In order to conceal his neglect of the matter, respondent under cover letter dated June 6, 1985, forwarded [A] only interrogatories 1 through 24 and failed to advise her of the content of the other nine questions, which concerned the timeliness of the action taken by respondent to serve notice of the litigation on defendants. The answers to the interrogatories were due on July 8, 1985. After not receiving the answers to the interrogatories in a timely manner, Attorney [G] wrote to respondent on July 24 and August 22, 1985 concerning the non-receipt of the answers. Under cover letter dated September 12, 1985, respondent forwarded to Attorney [G] the answers to questions 1 through 33 and included, a purported verification of all of those answers executed by [A]. Respondent supplied the answers to interrogatories 25 through 33. At the time [A] executed the affidavit, she had no knowledge that her verification went beyond her answers to questions 1 through 24. Also, the circumstances under which [A] signed the affidavit were falsely represented to opposing counsel. On October 15, 1985, Attorney [G] filed the interrogatories and the answers in [ ] County.

On July 14,1986, respondent telephoned [A] for the purpose of updating her on her case and to arrange an office appointment. From July 14 to October 15; 1985, from time to time, respondent contacted [A] by telephone concerning her physical condition and her continued treatment with her chiropractor.

By letter dated September 11, 1986, respondent was advised by Attorney [H] that [A] had directed him to make the appropriate arrangements to assume her representation. Respondent failed to promptly respond to Attorney [H’s] letter. By letter dated October 8,1986, [A] confirmed her retainment of new counsel, commented on respondent’s failure to respond to Attorney [H’s] letter and demanded that her file be forwarded to her new counsel.

In September or October 1986, Attorney [H] met with respondent at his office, at which time it was agreed between them that respondent would make one final effort to settle the case. At this time, respondent began settlement negotiations and made a demand for $10,000. Counsel for [D] counter-offered $4,500 which respondent did not feel was an adequate settlement. Thereafter, respondent made an appointment to deliver the file to Attorney [H] in February 1987, but Attorney [H] was not available. Respondent rescheduled an appointment with Attorney [H] and delivered the file in April 1987. Through the efforts of both [H] and respondent, a settlement was reached with [D] Insurance Company, pursuant to which' it contributed $5,500. Respondent contributed another $5,500 to the settlement, received no fees and was not reimbursed any costs in the matter.

Charge Two The [I] Case

On June 11, 1984, [I], an 81-year-old woman, contacted respondent in regard to a property encroachment problem she was having with her neighbor [J], Esq. Sometime after June 12, 1984, respondent visually observed the property and told [I] he would “look into the problem.” No written or oral fee agreement was made and respondent never submitted to [I] a bill for fees or expenses. From June 1984 to March 1985, respondent took little or no action in pursuing [I’s] encroachment problem. On December 16, 1984, at a chance meeting, respondent orally informed [I] that [J] would not take responsibility for the problem. In March 1985, respondent met with [I’s] son-in-law, [K], who was acting on [I’s] behalf. [K] told respondent to sue [J].

In May 1985, respondent advised [I] to obtain bids from several contractors for the cost of correcting the encroachment problem. Respondent also requested that [I] have a survey done on her property, but since she did not contact a surveyor, respondent arranged on August 2, 1985 to have a survey of the common boundary line between the properties. On August 1, 1985, [I] sent respondent the contractor bids and by August 21, 1985, respondent had in his possession the survey results and a bill for $225.

From September through November 1985, [I] made numerous calls to respondent’s office; all of which were unretumed. In January 1986, respondent informed [I] that he had given [J] 30 days to obtain his own bid from a contractor. In May 1986, [K] contacted respondent by telephone and reiterated in unequivocal terms [I’s] request to bring a lawsuit. Respondent indicated that he had not completed the necessary paperwork and that he wanted to speak with [J] before doing so.

After ■ three appointments with respondent wherein he did not have the complaint drafted, on June 17, 1986, [I] signed the complaint respondent had prepared. Respondent advised [I] that [J] would be served by courier on June 23, 1986. Respondent did not cause the complaint to be filed or served as he had indicated he would do, nor did he. advise [I] that he had not intended on filing the complaint at that time.

Thereafter, respondent made misrepresentations to [I] and [K] concerning the status of the case. During a July 9, 1986, telephone conversation, [K] was told by respondent that he had extended the 20-day deadline for [J] to file an answer, because respondent had allowed. [J] to pick up the complaint himself. On July 23, 1986, respondent again spoke with [K] and advised him that [J] would not voluntarily do anything about the property problem, and that [J] had 20 days to respond to the complaint. On July 17, 1986, respondent telephoned [I] and advised her that a meeting had been scheduled with [J] for July 21, 1986. In fact, as of July 23, 1986, respondent had not yet filed the complaint.

On or about August 25, 1986, [K] provided respondent with a copy of the complaint that had been filed with the Office of Disciplinary Counsel. During a September 2, 1986, office meeting with [I] and [K], respondent expressed displeasure that they had filed the complaint, but he was not requested to nor did he withdraw as counsel. At no time during this meeting did respondent advise [I] that he had not filed the complaint in her case.

During an early October 1986 telephone conversation, respondent told [I] that he and [J] were to meet with an unnamed judge about the case on October 10, 1986. Respondent further indicated to [I] that it was not necessary that she attend the meeting. Respondent later informed [K] that the meeting had been rescheduled because the judge had criminal cases to hear. In fact, no meeting had ever been scheduled.

On October 28, 1986, [K] informed respondent that he and [I] had learned from the prothonotary’s office that respondent had not yet filed a complaint. Respondent replied that the complaint had been filed and that “the girls in the prothonotary’s office must have gotten it all mixed up.” Respondent filed the complaint on October 29, 1986.

Respondent did not take appropriate steps to cause the complaint to be promptly served of record on the defendant. Of necessity, on August 27, 1987, respondent reinstated the complaint and had service of record completed on September 9, 1987.

CONCLUSIONS OF LAW

Respondent has violated the following Disciplinary Rules:

Charge One The [A] Case

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

(2) D.R. 2-110 (B)(4) — A lawyer shall withdraw from employment upon discharge by his client;

(3) D.R. 6-101 (A)(3) — A lawyer shall not neglect a legal matter entrusted to him;

(4) D.R. 9-102 (B)(4) — A lawyer shall promptly pay or deliver to a client as requested by a client the funds, securities, or other properties in possession of the lawyer which the client is entitled to receive.

Charge Two The [I] Case

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

(2) D.R. 6-101 (A)(3) — A lawyer shall not neglect a legal matter entrusted to him.

DISCUSSION

Respondent was retained as counsel in two separate and unrelated cases. In both cases, respondent neglected the clients’ legal matter. In both matters, respondent’s neglect was not simply ordinary and inadvertent neglect or the result of an error of judgment made in good faith. “Neglect” involves “indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed the client.” See In re Anonymous No. 24 D.B. 80, 20 D.&C. 3d 214, 223 (1981). Respondent consistently failed to take the áppropriate action on behalf of his clients. Moreover, respondent failed to keep his clients advised of the status of the matters he was handling on their behalf.

In the [A] case, between October 1983 and June 1984, respondent failed to keep his client advised of the status of her case and repeatedly failed to return her phone calls. In addition, respondent waited almost two years after the cause of action accrued and 19 months after undertaking his client’s representation before filing a praecipe for writ of summons. However, respondent failed to have the writ of summons properly served, thus creating a potential statute of limitations problem in the case. Respondent’s neglect greatly affected the negotiations with opposing counsel as stated by respondent:

“I think what motivated the settling of this case was not me, but it was that [GJ (opposing counsel) was then going to take my deposition and [H] [A’s] newly retained counsel) felt that... if they took my deposition, and I. told them that I had not given instructions to the sheriff and so forth, they would probably withdraw all offers. Accordingly, [H] felt that if I would contribute enough to reach what he had apprised her as being a good settlement, it would be accepted.”

After becoming concerned over the manner in which he was handling her case, [A] wrote respondent informing him that she was retaining new counsel. However, respondent convinced the client to allow him to continue in. his representation, by stating that he could present her with reasonable settlement offers in the near future. Even after that, respondent failed to vigorously prosecute her case. He failed to promptly forward to [A] interrogatories that had been propounded by the defense. When [A] retained Attorney [H] to handle her case, respondent failed to promptly forward her file, even after [A] requested he do so in writing. The client should not bear the burden of commencing a lawsuit by pushing and prodding the attorney. Rather, the lawyer must zealously carry out the obligation he has assumed at the. time he or she agreed to represent the client. See Code of Professional Responsibility Canon 7 (1980).

In the [I] case, respondent undertook representation in June 1984. But except for a chance meeting in December 1984, respondent had little contact and took no appreciable action to prosecute the matter until March 1985. Calls from [I] to the respondent went unretumed. [I’s] son-in-law, [K], acting on her behalf, specifically directed respondent to file a complaint in March 1985. However, respondent did not follow that direction until October 29, 1986. He neglected the case further by not causing the complaint to be properly served. His neglect resulted in the necessity of having the complaint reinstated in August 1987 and service was finally accomplished in September 1987.

Respondent’s most egregious misconduct occurred when he attempted to conceal his neglect from his clients and made numerous misrepresentations to them. In the [A] case, respondent, in order to cover up his neglect, failed to forward his client nine interrogatories which concerned the timeliness of the action taken by respondent to serve notice of the litigation on defendants. Respondent also had [A] affix her signature to an affidavit verifying the entirety of all answers without advising his client-of the true content of the other nine questions for which he had supplied the answers.

In the [I] case, respondent misrepresented the status of the case to his client on several occasions. On June 17, 1986, when [I] signed the complaint respondent had prepared, respondent falsely stated that the defendant would be served by courier on June 23, 1986. Although respondent did not file the complaint, he informed his client that the defendant had 20 days to file an answer. On October 28, 1986, respondent stated that the complaint was filed, when he knew it was not. Also, respondent falsely stated that a meeting had been scheduled with a judge and later falsely represented that the meeting had been canceled. It is clear that integrity goes to the heart of the legal profession. See Canon 1, Ethical Considerations EC 1-1 (1980). A lawyer’s failure in that regard has a detrimental impact upon the public’s perception of and trust in lawyers. The board is mindful of this consequence when determining appropriate discipline.

The board has considered the mitigating circumstances in this case. Although respondent’s conduct was reprehensible, he collected no fees in either case. Respondent enjoys a good reputation and is active in civic matters and community service. Fortunately, in both cases the client did not suffer a financial loss. In [A], respondent contributed $5,500 towards the settlement of $11,000. “Client loss is an important factor . . . because until such loss occurs the client has sufficient remedy in removing the case.or matter from the lawyer involved and taking it to another lawyer.” In re Anonymous No. 24 D.B 80, supra, at 222. However, the board believes that an attorney’s conduct should not be judged on the sole basis of whether the client has suffered a tangible loss.

The board also is aware of respondent’s past misconduct which has been considered in determining the appropriate discipline. In March 1985, respondent received an informal admonition for commingling client funds, in violation of Disciplinary Rule 9-102(a). However, it was determined that respondent had no intentions to purposely convert the funds, rather respondent’s misconduct was due to his carelessness.

In the light of the foregoing, the board has determined that respondent’s misconduct warrants public discipline. The board believes that the humiliation of public discipline will prevent the recurrence of future violations by respondent.

RECOMMENDATION

The Disciplinary Board recommends that respondent be subjected to public censuré by the Supreme Court of Pennsylvania. We further recommend that all costs in connection with these proceedings be paid by respondent.

Dr. Gilbert dissents and would recommend a private reprimand.

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

ORDER

And now, December 8,1989, upon consideration of the report and recommendations of the Disciplinary Board dated November 6, 1989, it ordered that [respondent] be subjected to public censure by the Supreme Court at the session of court commencing March 5,1990, in Pittsburgh. It is further ordered that respondent shall pay costs, if any, to the Disciplinary Board pursuant to rule 208(g), Pa.R.D.E.


author: JIULIANTE, P.J.,

text:
    Murray v. Erie Insurance Exchange
    March 2, 1990

      Ronald L. Slater and Frank C. Fogl III, for plaintiff.

      S.E. Riley Jr. and Craig Murphey, for defendant.
   JIULIANTE, P.J.,

This matter is before the court on both parties’ motions for summary judgment. The decedent-plaintiff above died on January 24, 1985, from serious personal injuries she sustained as a passenger in a car accident on January 18, 1985. Funeral and burial expenses totalled $5549.30.

At the time of the accident, decedent was covered under a no-fault policy of automobile insurance which her mother and step-father had with defendant. Decedent’s estate received funeral benefits under the policy in the amount of $1500, which benefits were called “personal injury protection” benefits.

At the time of the accident, the driver of the automobile had in effect an insurance policy under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq. Said policy contained a schedule of “first-party benefits” which included funeral benefits in the amount of $2500.

Plaintiff, as personal representative of the estate, has demanded payment of the “first-party” funeral benefits payable under the driver’s insurance policy. However, defendant has refused to pay the funeral benefits based on its assertion that plaintiff is attempting to “stack” funeral-benefit coverage in violation of both the No-fault Act and the FRL.

It is plaintiff’s position that there is no “stacking” since the “first-party” funeral benefits recoverable under the FRL differ in kind from the “personal injury protection” funeral benefits under the no-fault insurance policy.

Plaintiff bases her rationale on the decision granting plaintiff relief in Soles v. Pennsylvania National Mutual Insurance Co., 372 Pa. Super. 605, 539 A.2d 1360 (1988), allocatur granted, 557 A.2d 725 (1989). Although there are similarities between the Soles case and the case sub judice, this court feels plaintiff’s reliance on Soles is misplaced. The argument advanced by defendant represents the more tenable position under existing case law.

In Soles, the plaintiff-passenger was injured in an automobile accident. As the plaintiff was a named insured under a policy issued pursuant to the Financial Responsibility Law, she recovered first-party medical expense benefits from that policy. Since her medical expenses exceeded her first-party benefit coverage, the plaintiff sought to recover the medical éxpense benefits of the no-fault policy issued to the driver of the automobile in which she had been injured. The no-fault carrier denied her application for benefits. 372 Pa. Super, at 607, 539 A.2d at 1361.

The defendant insurer advanced three arguments in support of its refusal to pay first-party medical benefits to the plaintiff. First, the defendant correctly, noted that the Financial Responsibility Law expressly prohibits stacking of first-party benefits such as medical expense payments. Second, the defendant noted that the no-fault policy from which the plaintiff sought benefits also prohibited stacking of those medical expense benefits. Third, the defendant demonstrated that case law supported the legality of the anti-stacking provision contained in the no-fault policy. 317 Pa. Super, at 607, 539 A.2d at 1361.

A majority of the Soles court held that the plaintiff was allowed to recover the medical benefit from the second insurance policy on the basis that the “personal injury protection” coverage of the plaintiff’s no-fault policy, which contained the medical expense benefit “cannot be equated” with the “first-party benefits” coverage of the Financial Responsibility policy. 372 Pa. Super. at 610, 539 A.2d at 1362. For the following reasons, this holding cannot be applied to the case at bar.

The position of the plaintiff in Soles is opposite to plaintiff’s situation in this case. In Soles, the plaintiff had received first-party benefits from her own insurance carrier, and was seeking to recover no-fault personal injury protection benefits from a second policy. Here, plaintiff has received no-fault personal injury protection benefits from the policy under which the decedent was an insured, and now seeks to recover Financial Responsibility first-party benefits from a second policy.

The Financial, Responsibility Law expressly prohibits stacking of first-party benefits such as funeral benefits. Plaintiff herein seeks to recover the funeral benefit of the Financial Responsibility policy issued to the owner of the automobile in which the decedent was a passenger. The law is such that the terms of the insurance policy from which benefits are sought dictate disposition of the claim. Soles, 372 Pa. Super. at 607-8, 539 A.2d at 1362. The provisions of the car owner’s policy and the law under which it must be construed indicate that plaintiff’s demand for funeral benefits must be denied.

The Financial Responsibility policy provides the following:

“Priorities of Policies”
“We will pay first-party benefits in accordance with the following order of priority. We will not pay if there is another insurer at a higher level of priority. The priority levels shown are in descending order from highest to lowest:
“First — The insurer providing benefits to the eligible person as a named insured.
“Second — The insurer providing benefits to the eligible person as an insured who is not a named insured under another policy providing coverage under the Pennsylvania Motor Vehicle Responsibility Law.
“Third — The insurer of the motor vehicle which the eligible person is occupying at the time of the accident. ...” (emphasis supplied)

This priority provision has been adjudged fully enforceable by the Superior Court:

“[T]he policy term excluding coverage where there exists coverage at a higher priority level is fully enforceable. The provisions . . . are unambiguous and there exists no basis upon which not to afford their application.” Laguna v. Erie Insurance Group, 370 Pa. Super. 308, 314, 536 A.2d 419, 422 (1988).

The priority provisions are set forth in the FRL itself:

“§1713. Source of Benefits
“(a) General Rule — Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first-party benefits against applicable insurance coverage in the following order of priority:
“(1) For a named insured, the policy on which he is the named insured.
“(2) For an insured, the policy covering the insured.
“(3) For the occupants of an insured motor vehicle, the policy on that motor vehicle . . .
“(b) Multiple sources of equal priority — The insurer against whom a claim is asserted first under the priorities set forth in subsection (a) shall process and pay the claim as if wholly responsible. The insurer is thereafter entitled to recover contribution pro rata from any other insurer for the benefits paid and the costs of processing the claim. If contribution is sought among insurers responsible under subsection (a)(4), proration shall be based on the number of involved motor vehicles.” 75 Pa.C.S. §1713.

The Laguna court construed this section as preventing a claimant from recovering first-party benefits from policies at more than one level of priority regardless of the inadequacy of such benefit to cover the relevant expense:

“Since the statute explicitly treats the issue of multiple sources of coverage among insurers of equal priority, its silence regarding insurers at different priority levels indicates that contribution in this context is not an issue. The logical interpretation of the limitation of section 1713(b) to insurers at an equal priority level is that insureds are not entitled to benefits from multiple sources at different priority levels” 370 Pa. Super. at 313, 536 A.2d at 421. (emphasis supplied)

The priority provisions of both the Financial Responsibility policy and the Financial Responsibility Law appear to prevent plaintiffs recovery. Plaintiffs sole recovery of benefits as first-party benefits must come from the higher level of priority, the parents’ no-fault policy.

This conclusion is bolstered by the “anti-stacking” provision of the Financial Responsibility Law, which provides:

“§1717. Stacking of benefits
“First party benefits shall not be increased by stacking the limits of coverage of:
“(1) multiple motor vehicles covered under the same policy of insurance; or
“(2) multiple motor vehicle policies covering the same individual for the same loss.” 75 Pa.C.S. §1717.

Though plaintiff argues that her claim is not prohibited by the anti-stacking provisions because the funeral expenses were only partially paid for under the no-fault policy, the Laguna court rejected this same argument and its logic may be extended to the instant case:

“We do not accept the interpretation of ‘loss’ proposed by [the plaintiff].. . . Within the context of section 1717, it appears to us that the term ‘loss’ refers to the physical injury suffered by the insured. There the insured is involved in a single accident which necessitates medical treatment for injuries suffered in the accident, all medical expenses incurred are part of the ‘same loss’ for purposes of determining the applicability of section 1717. In the instant case, the medical bills covered by the Kemper policy and those which remain unpaid all constitute the ‘same loss’ since they were incurred during the course of treatment for the injuries suffered from the July 4th accident.” Laguna, 370 Pa. Super, at 314, 536 A.2d at 422.

This reasoning may be extended to conclude that the portion of the funeral bill paid under the no-fault policy and the portion unpaid constitutes the “same loss” as the expenses resulted from the same accident. Therefore, the anti-stacking provision of section 1717 prevents plaintiff’s recovery under the owner’s policy.

The Soles decision is distinguishable from the case at bar in that the Soles plaintiff sought to recover funeral benefits from a no-fault policy, while the plaintiff at bar seeks funeral benefits from a Financial Responsibility policy.

Since the present action seeks benefits from a Financial Responsibility policy, it must be interpreted pursuant to the Financial Responsibility Law. Because the Financial Responsibility Law precludes plaintiff’s attempted recovery of funeral benefits from a second policy, we must conclude that the plaintiff cannot recover the benefit she seeks.

Wherefore, plaintiff’s motion for summary judgment must be denied, and defendant’s motion for same must be granted.

ORDER

And now, March 2, 1990, upon consideration of cross-motions for summary judgment, it is hereby ordered, adjudged and decreed that plaintiffs motion for summary judgment is denied. Defendant’s motion for summary judgment is granted.