In re Anonymous No. 20 D.B. 76

4 Pa. D. & C.3d 758
CourtSupreme Court of Pennsylvania
DecidedFebruary 4, 1977
DocketDisciplinary Board Docket no. 20 D.B. 76
StatusPublished

This text of 4 Pa. D. & C.3d 758 (In re Anonymous No. 20 D.B. 76) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Anonymous No. 20 D.B. 76, 4 Pa. D. & C.3d 758 (Pa. 1977).

Opinion

UNKOVIC, Board Member,

STATEMENT OF THE CASE

This case arises under a petition for discipline filed against respondent on June 1, 1976. The proceedings were initiated by reason of the entry by respondent of a plea of nolo contendere, on April 29, 1976, in the Court of Common Pleas of [ ] County, [759]*759to 20 counts of violation of section 3927 of the Crimes Code of December 6, 1972, P.L. 1482, 18 C.P.S.A. §3927, each of which charged respondent with receiving moneys upon agreement subject to a known legal obligation to make specified payments of Pennsylvania sales tax, and intentionally dealing with such money as his own and failing to make the required tax payments.

On May 21, 1976, the Supreme Court of Pennsylvania entered an order suspending respondent from the practice of law in the Supreme Court and in all courts under its supervisory jurisdiction, pursuant to Rule 17-14(a) of Disciplinary Enforcement.1 The matter was then referred by the Supreme Court to the Disciplinary Board for the institution of a formal proceeding before a hearing committee pursuant to Rule 17-14(c), for the purpose of determining the extent of final discipline to be imposed.

The petition for discipline charges that respondent’s alleged misconduct occurred when respondent, as “Secretary and Manager” of [A] Chevrolet, Inc., obtained money from 20 customers of the automobile agency which was to have been used to make payment of sales tax on an automobile purchased by the customer, and failed to make such payment.

The petition alleges that respondent, having been [760]*760convicted of section 3927 of the Crimes Code by reason of a plea of nolo contendere, is in violation of the following Disciplinary Rules:

D.R. 1-102(A)(1), which prohibits the violation of a Disciplinary Rule;

D.R. 1-102(A)(3), which prohibits illegal conduct involving moral turpitude;

D.R. 1-102(A)(4), which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation;

D.R. 1-102(A)(5), which prohibits conduct prejudicial to the administration of justice; and

D.R. 1-102(A)(6), which prohibits conduct that adversely reflects on an attorney’s fitness to practice law.

On June 21, 1976, respondent filed an answer to the petition for discipline, in which he admitted that he had pleaded nolo contendere to the 20 indictments, but denied that he received funds subject to a known legal obligation to make payment of Pennsylvania sales tax. The answer also alleged that respondent was unaware that the Pennsylvania sales tax was being received by the automobile dealership or that it was not being paid over to the Commonwealth. Respondent further contended in his answer that Disciplinary Rules 1-102(A)(5) and 1-102(A)(6) are unconstitutionally vague and void for vagueness on their face, and when applied to the facts and circumstances of this case.

On July 1,1976, the case was assigned to hearing committee [ ] for determination. On August 4, 1976, a prehearing conference was held before the full committee, and with counsel for petitioner and respondent present, to determine a preliminary [761]*761question of evidence, namely whether evidence regarding respondent’s personal involvement in the crimes to which the plea of nolo contendere was accepted was admissible. The committee determined that evidence of personal involvement of respondent would be admitted, and issued a pretrial order to that effect under date of September 14, 1976.

A formal hearing before the committee was held in the offices of the Disciplinary Board in [ ], Pennsylvania, on Monday, September 27, 1976, and Tuesday, September 28, 1976. Petitioner produced, as exhibit P-1, copies of respondent’s plea of nolo contendere and the indictments to which the plea was entered. As exhibit P-2, petitioner produced a transcript of the proceedings in a preliminary hearing held before District Judge [B], of [C], Pennsylvania, on October 23, 1976, in the cases of Commonwealth v. [A] and Commonwealth v. Respondent; as exhibit P-3, petitioner produced a transcript of proceedings held in court room 4 in the [ ] County courthouse, on Friday, March 19, 1976, in the case of Commonwealth v. Respondent, at which respondent’s plea of nolo contendere was accepted; and as exhibit P-4, petitioner produced a copy of a transcript of the sentencing proceedings held in court room no. 5 in [ ] County courthouse on April 29, 1976, in the case of Commonwealth v. Respondent. As exhibit P-5, petitioner offered a copy of the order of the Pennsylvania Supreme Court dated May 21, 1976, which referred the matter to the Disciplinary Board of the Supreme Court.

Respondent’s case consisted of testimony from respondent, together with testimony from nine other witnesses, primarily on the issue of respondent’s character and reputation. In rebuttal, peti[762]*762tioner introduced testimony from four witnesses, all of whom were former employes of the automobile agency with which respondent was associated.

Following the conclusion of the hearing, the notes of testimony were made available on October 22, 1976. Petitioner submitted a brief to the committee on November 10, 1976, and respondent submitted a brief to the committee on December 1, 1976.

RULINGS ON ADMISSION OF EVIDENCE AND OTHER PROCEDURAL MATTERS

As noted above, the committee entered a prehear-ing order allowing respondent to offer evidence pertaining to his personal involvement in the crimes to which he pleaded nolo contendere. In making this determination, the committee considered the decision of the Disciplinary Board in the matter of [anonymous], Disciplinary Board Docket no. 9 D.B. 73, in which the board held that a hearing committee was foreclosed by Rule 17-14(c) from receiving testimony of extenuating or mitigating circumstances pertaining to the commission of a crime and subsequent conviction, and that evidence directly bearing on said guilt or innocence is inadmissible. The committee determined that, since Lability under section 3927 of the Crimes Code may be imposed upon a corporate officer by reason of section 307(e)(2) of the Crimes Code for a “reckless omission” to perform a required act, it was proper to receive evidence of respondent’s personal involvement in determining the discipline to be imposed by reason of the finding of guilt. The committee felt that this evidence did not bear on the guilt or innocence of respondent, but, on the contrary, provided [763]*763necessary background information without which the committee could not determine which disciplinary rules, if any, had been violated.

The committee further ruled, over the objection of counsel for respondent, that exhibits P-2, P-3, and P-4, which consisted of transcripts of testimony at hearings in [ ] County, were admissible as part of the record of these disciplinary proceedings against respondent.

Under the date of September 21, 1976, the Supreme Court of Pennsylvania, at the request of counsel for respondent, issued a subpoena to Honorable [D], a judge of the [ ] Court of Common Pleas. Under date of September 30, 1976, counsel for petitioner filed a petition with the Supreme Court of Pennsylvania to quash the subpoena issued to Judge [D], which petition to quash was granted by the Supreme Court on October 1, 1976. As a result, the committee did not receive testimony from Judge [D].

FINDINGS OF FACT

1.

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4 Pa. D. & C.3d 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-anonymous-no-20-db-76-pa-1977.