McCarthy v. Southeastern Pennsylvania Transportation Authority

772 A.2d 987, 2001 Pa. Super. 106, 2001 Pa. Super. LEXIS 431

• Court: Superior Court of Pennsylvania
• Decided: April 10, 2001
• Status: Published

Opinions

JOHNSON, J.:

¶ 1 In this appeal, we re-examine when a trial court has the authority to sanction counsel based on the Pennsylvania Rules of Professional Conduct. We conclude that a trial court can sanction counsel by disqualification based on a violation of the Rules of Professional Conduct only when the trial court has determined that disqualification is needed to ensure that the parties receive the fair trial that due process requires. We also conclude that even where circumstances are such as to allow a sanction for a violation of a Rule of Professional Conduct, the court must have evidence in the record to support a conclusion that the attorney did violate that particular rule.

¶ 2 Jonann McCarthy appeals from the order denying her Motion for Post Trial Relief. McCarthy asserts that the trial court erred in concluding that her attorney’s (William Keller) ex-parte communication with present and past SEPTA employees was unethical under Rule 4.2 of the Pennsylvania Rules of Professional Conduct. McCarthy also asserts that the trial court’s imposition of sanctions deprived her of her choice of counsel and violated her constitutional right to a fair trial. In addition, McCarthy argues that the trial court’s decision to force her to proceed to trial represented by the associate of the disqualified counsel was contrary to law. Finally, McCarthy asserts that the application of Pa.R.P.C. 4.2 to the facts of this case was contrary to the Supremacy Clause because Congress has precluded all interference with employee witnesses in FELA cases. We conclude that although the trial court may sanction attorneys for violations of the Pennsylvania Rules of Professional Conduct in certain cases, the trial court did not have the authority to sanction Keller on that basis in the instant case. We also conclude that even if the trial court had the authority to sanction Keller, the evidence of record does not support the court’s finding that Keller violated Pa.R.P.C. 4.2. Ultimately, we conclude that the trial court denied McCarthy’s right to choice of counsel, and, therefore, McCarthy was denied a fair trial. Based on the above reasons, we reverse the order denying post-trial relief and remand for a new trial.

¶ 3 McCarthy sued her employer, SEPTA, pursuant to the Federal Employers’ Liability Act, 45 U.S.C. § 51-60, for compensation for injuries stemming from a workplace accident. At the time of the accident, McCarthy was employed by SEPTA as a track foreman. McCarthy was injured while unloading railroad timbers at a work site. McCarthy asserts that her injuries resulted from the unavailability of proper equipment, as well as SEPTA’s failure to provide sufficient manpower and adequate working conditions.

¶4 Before trial, and after SEPTA discovered that Keller had obtained statements from one prior and two present SEPTA employees outside the presence of counsel, SEPTA filed a Motion in Limine to Preclude the Use of Statements and to Prohibit any Further Contacting of SEPTA Employees Outside the Presence of Counsel. McCarthy filed a reply to the Motion in Limine. The trial court disposed of the Motion in Limine on May 17, 1999, on record as follows:

I’m ready with the motion in limine. Okay. I’m going to rule on that, that it may not be used, all three of them, may not be used. I’m going to follow the ruling of Judge Allen, which is in here somewhere. You’re welcome to get whatever you can from the closing. You’re welcome to. You may not use the statements. Okay. And I’m basing it primarily on the language of the comments to Pennsylvania Rule of Evidence 803, specifically the comment to 803(25) in which they talk about Federal Rule of Evidence 801(D)(2) stating that the difference between the federal and the Pennsylvania formulations is organizational; it has no substantive effect. Okay. Off the record.

Notes of Testimony (“N.T.”), 5/17/99, at 4-5. This discussion is the sole reference to the Motion in Limine; the court did not enter a written order in the record regarding the Motion in Limine. In addition, nowhere in the above “order” did the trial court prohibit Keller from having future ex parte communication with past or present SEPTA employees.

¶ 5 On May 18, 1999, SEPTA informed the trial court that Keller’s office had been contacting SEPTA employees and asserted that Keller’s conduct was a violation of the Rules of Professional Conduct. The court proceeded to have Fernando Davis, a SEPTA employee and SEPTA’s witness regarding the alleged ex parte communication, testify regarding his communications with Keller and Keller’s employees. After hearing Davis’s testimony, the trial court heard testimony from Thomas Pontolillo, Keller’s investigator, regarding his communications with past and present SEPTA employees on behalf of Keller. After this testimony, SEPTA asserted that it felt that Keller’s conduct was “highly inappropriate.” In addition, SEPTA’s counsel moved that “Mr. Keller ought to be disqualified as counsel or at the very least that any witnesses that he’s interviewed outside the normal discovery process should be precluded from testifying on behalf of the plaintiff in this case, at a minimum.” The trial court then responded with the following:

My recollection ... of this event is that in the morning I discussed the motion in limine, although I did not make a record ... [a]nd I made it very clear that I was leaning in the direction of the judge’s solution in Belote v. Maritrans, which is reported here as 1998 WL 136528, Eastern District of Pennsylvania. So that at that time, approximately 9:30, he was on notice that I was very close, but I don’t think that I did it formally. I think that I did it later ... about 2:30, to prohibiting [sic] the use of those statements.

N.T., 5/18/99, at 29-30. The court then ruled that Keller was disqualified from the remainder of the case for violating Pa. R.P.C. 4.2 and that Mr. Goggins, an associate in Keller’s firm, would try the case. N.T., 5/18/99, at 37. In addition, the trial court disqualified “the statement of the witnesses.” Id. The court did not put on record specifically what witnesses’ statements were disqualified. The trial court also stated that Goggins, the associate, could cross-examine any of the disqualified witnesses that SEPTA called to testify at trial. Id. After a trial, the jury found that SEPTA was not negligent. McCarthy filed post-trial motions, which the trial court denied. McCarthy then filed this appeal.

¶ 6 We will first address the issue of the Motion in Limine in relation to the trial court’s decision to sanction counsel for a Pa.R.P.C. violation. The order made by the trial court on record was an evidentiary ruling; the trial court ruled that, based on Pa.R.E. 803(25), McCarthy was prohibited from using statements taken from two current and one past SEPTA employee at trial. Nowhere in its oral order did the trial court prohibit Keller from having ex parte communication with SEPTA employees. The inference made by the court during the trial on May 18, 1999, regarding the fact that the trial court “was leaning towards” making a ruling was not binding on McCarthy; there was no order in place during the morning. See Jackson v. Hendrick, 710 A.2d 102, 105 (Pa.Cmwlth.1998) (stating that for an order to be effective, it must be entered). Even if the court’s statement had been binding, the case that the trial court referenced as its authority, Belote v. Maritrans, 1998 WL 136523 (E.D.Pa.1998), discusses the scope and application of Pa.R.P.C. 4.2, not P.R.E. 803(25), upon which the court based its decision. Belote, 1998 WL 136523 (E.D.Pa.1998). Therefore, the assertion made by the trial court that Keller was on notice that he should have no further contact with past or present SEPTA employees because of its ruling on the Motion in Limine the day before is unsupported by the record. See N.T., 5/18/99, at 29-30, 32.

¶ 7 In Issues 1 and 2, McCarthy asserts that the trial court abused its discretion by imposing sanctions based on Pa.R.P.C. 4.2 that deprived her of her right to counsel. We recognize a trial court’s authority to sanction counsel based on violations of the Rules of Professional Conduct. In Commonwealth v. Lambert, 765 A.2d 306 (Pa.Super.2000), this Court recently stated that a trial court may sanction, warn or recommend disciplinary action against an attorney who has violated a Rule of Professional Conduct. Lambert, 765 A.2d at 345-46. Although disqualification and removal is an appropriate sanction in some cases, it is a serious remedy “which must be imposed with an awareness of the important interests of a client in representation by counsel of the client’s choice.” Slater v. Rimar, Inc., 462 Pa. 138, 338 A.2d 584, 590 (1975). In view of this weighty consideration, we cannot agree with the Dissent that “a trial court may impose any sanction it deems appropriate.”

¶ 8 A court’s authority to disqualify counsel based on Rules of Professional Conduct is limited. In In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984), our Supreme Court stated that “this court has held in several cases that counsel can be disqualified for violations of the [Rules of Professional Conduct] where disqualification is needed to [e]nsure the parties receive the fair trial which due process requires.” Pedrick, 482 A.2d at 221 (emphasis added). Our Supreme Court continued:

Thus, while it may be appropriate under certain circumstances for trial courts to enforce the Code of Professional Responsibility by disqualifying counsel or otherwise restraining his participation or conduct in litigation before them in order to protect the rights of litigants to a fair trial, we are not inclined to extend that enforcement power and allow our trial courts themselves to use the Canons to alter substantive law or to punish attorney misconduct.

Id.

¶ 9 In addition, our Supreme Court, in Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985), limited the authority of both trial and appellate courts to sanction counsel for violations of the Rules of Professional Conduct as follows:

Perceived violations of [the Pa.R.P.C.] do not permit the trial courts or the intermediate appellate courts to alter the rules of law, evidentiary rules, presumptions or burdens of proof. More importantly, violations of those Codes are not a proper subject for consideration of the lower courts to impose punishment for attorney or judicial misconduct.

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[W]e have not abdicated or delegated any of our supervisory authority in enforcing these standards of conduct to Superior Court. To presume that the Code or its alleged violations can be reviewed by any tribunal other than those we authorize is a misapprehension of the purpose of the Code, and is seen as an impermissible meddling into the administrative and supervisory functions of this Court over the entire judiciary.

Reilly, 489 A.2d at 1299 (emphasis added). Reilly clearly limits the intermediate appellate and trial courts’ authority to impose punishments for violations of the Rules of Professional Conduct.

¶ 10 In the instant case, Keller’s alleged violation of Pa.R.P.C. 4.2 had no effect on the conduct of the litigation. See Pedrick, 482 A.2d at 221. In fact, the trial court had already corrected any error that would have affected the litigation by granting SEPTA’s motion in limine preventing the introduction of three employees’ statements at trial. Any ex parte contact Keller had with past or present SEPTA employees that violated Pa.R.P.C. 4.2 could have been and was rectified by the proper application of the Rules of Evidence. Therefore, even if the trial court did perform an analysis of Keller’s conduct based on whether that conduct would have prevented SEPTA from receiving a fair trial, it could not have concluded properly that Keller’s actions would have prevented a fair trial, since all the challenged evidence was already excluded. See id. Hence, we conclude that since Keller’s alleged Pa. R.P.C. 4.2 violations would not have prevented SEPTA from receiving a fair trial, the only other reason for disqualifying Keller would have been to punish him for his alleged Pa.R.P.C. 4.2 misconduct. As discussed above, a trial court does not have generalized authority to punish attorneys based on Pa.R.P.C. violations. See Reilly, 489 A.2d at 1299; Pedrick, 482 A.2d at 221. Accordingly, the trial court abused its discretion in sanctioning Keller on the basis of his alleged Pa.R.P.C. 4.2 violation and in disqualifying Keller as McCarthy’s counsel.

¶ 11 Even if the trial court properly could have sanctioned Keller under the Rules of Professional Conduct generally, there is not enough evidence in the record explaining the responsibilities of the SEPTA employees to support a conclusion that the employees were protected from contact by opposing counsel under Pa.R.P.C. 4.2. Contrary to the Dissent’s assertion, we perceive that Pa.R.P.C. 4.2 and not Pa. R.E. 803(25) controls this issue. Indeed, the trial court’s order disqualifying Keller from this case was based on Pa.R.P.C. 4.2. Rule of Professional Conduct 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Pa.R.P.C. 4.2. The rules committee that framed the Rules of Professional Conduct included comments to the rules. These comments do not add obligations to the rules, but merely provide guidance for interpretation of the body of the rule. See Pa.R.P.C., “Scope”. The comment to Pa. R.P.C. 4.2 states, in pertinent part, as follows:

In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for the purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

Comment to Pa.R.P.C. 4.2. We interpret this comment as instructing counsel to determine, before having ex parte contact with an employee, the position and nature of employment of that employee in regard to the possibility that a statement given by that employee and potentially admitted at trial could impute liability onto their employer. We find no precedential law that mandates the importation of the definition of admission as described in Pa.R.E. 803(25) to Pa.R.P.C. 4.2. Moreover, we find no precedent to support the importation of this definition.

¶ 12 The key information needed by the trial court to determine if an employee qualifies for protection from ex parte communication with opposing counsel is what status that employee has within the employee’s organization, i.e., whether, by virtue of the employee’s status, a statement made by this employee could impute liability to the company. We acknowledge that had the trial court gathered enough evidence to conclude that at least one of the SEPTA employees who had an ex parte communication with Keller fit within the definition of a protected party for the purposes of Pa.R.P.C. 4.2, then the trial court could properly conclude that Keller violated Pa.R.P.C. 4.2. However, the court failed to adduce such evidence. Although the trial court did take testimony from one SEPTA employee, Fernando Davis, regarding his ex parte communication with Keller and Keller’s employees, the testimony was insubstantial with regard to his role as a SEPTA employee. N.T., 5/18/99 at 4-12. Davis testified that he was “a maintenance manager, a track foreman in the line maintenance department” for SEPTA. Id. at 5. Davis did not explain, however, what work he performed for SEPTA or what kind of responsibility his job required him to undertake.

¶ 13 Davis also testified that Booker Johnson, an ex-employee of SEPTA and Mike Kearst, a current employee of SEPTA, were at Keller’s office on 5/17/99. However, Davis did not attest to Johnson’s or Kearst’s positions at SEPTA and the trial court did not hear testimony from either Johnson or Kearst. Both McCarthy and SEPTA filed identical witness statements taken from Kearst and Johnson with their respective memoranda regarding the motion in limine, but neither of the statements discuss the parties’ positions at SEPTA.

¶ 14 The trial court also heard testimony from Thomas Pontolillo, an investigator employed by Keller. Pontolillo testified that he discussed the accident with Mr. Grenfeld, whom he identified as a “yard master” for SEPTA, but Pontolillo did not testify as to the duties of a “yard master” and the trial court did not hear testimony from Grenfeld. Id. at 18-19.

¶ 15 Consequently, the evidence in the record does not support a finding that the employees of SEPTA who had ex parte communication with Keller had managerial responsibility, were in positions within SEPTA such that their acts or omissions in connection to McCarthy’s accident could impute liability onto SEPTA, or that their statements could be considered “admissions” on the part of SEPTA. See Pa. R.P.C. 4.2. Contrary to the Dissent’s assertion, the trial court did not make a finding of fact or even state on record that the witnesses were employees whose statements may constitute admissions for the purposes of Pa.R.P.C. 4.2. The trial court’s only finding regarding those employees was that based on Pa.R.E. 803(25), their statements could not be admitted as evidence at trial. Therefore, we conclude that the trial court erred in removing Keller based on his purported violation of Pa.R.P.C. 4.2.

¶ 16 The two errors discussed above led the trial court to sanction Keller for a violation of Pa.R.P.C. 4.2 by disqualifying Keller from representing McCarthy at trial. Our Supreme Court explained the dual concerns to be considered before disqualifying an attorney as follows:

We approach our task as a reviewing court in this case conscious of our responsibility to preserve a balance, delicate though it may be, between an individual’s right to his own freely chosen counsel and the need to maintain the highest ethical standards of professional responsibility. This balance is essential if the public’s trust in the integrity of the Bar is to be preserved.

Slater, 338 A.2d at 590 (citation omitted). Because we conclude that there is no evidence to support a finding that Keller committed a violation of the Rules of Professional Conduct, we find no reason why McCarthy should have been denied her right to “[her] own freely chosen counsel.” Id.

¶ 17 My colleague suggests her inability to conclude that “preclusion of [the witnesses’s] testimony altogether was appropriate.” Dissenting Opinion at 1001. Judge Beck also concedes that “[t]he record is insufficient to establish that the preclusion order was warranted with respect to any one or all of the SEPTA witnesses to whom it applied.” Id. Judge Beck joins with the Majority in concluding that the preclusion order should not be affirmed on the record before this Court. Id. However, we disagree as to the appropriate remedy.

¶ 18 Judge Beck would remand and afford each party “an opportunity to establish its position with respect to the preclusion order.” Id. We are unaware of any authority that would permit such a future course. This matter was tried before a jury. The jury returned a verdict for the defendant, SEPTA, and final judgment was entered following the denial of post-trial motions. By remanding, Judge Beck would authorize the trial court to reopen the record and conduct an “evidentiary hearing” at which the parties would be allowed to revisit the propriety of the exclusion order, presenting such “evidence” as each party believed appropriate to advance its cause. Id. at 29-30.

¶ 19 Such a procedure, we conclude, is unauthorized by law. The exclusion of evidence is strictly an evidentiary matter. See Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 521 A.2d 25, 30 (1987) (stating that a trial court’s evidentiary rulings, if preserved for appellate review, will be tested according to established rules of evidence). Its appropriateness is always determined by review of the record existing at the time the ruling is made. There is no case law authorizing a trial judge to revisit an evidentiary ruling, after the record is closed, for the purpose of receiving additional evidence on the evidentiary ruling. The jury verdict cannot be modified after an appeal has been taken. In Keleher v. La Salle College, 394 Pa. 545, 147 A.2d 835 (1959), our Supreme Court articulated that where the record on appeal presents the issues involved and no factual disputes remain to be resolved, our Court will not remand the case to the trial court for further proceedings to correct procedural or other errors made by the trial court. See Keleher, 147 A.2d at 837. Therefore, if the certified trial record does not contain sufficient facts to support the trial court’s ruling, and if that ruling had a harmful effect upon the outcome of the case, the only remedy is to grant a new trial. There is no authority, nor has my distinguished colleague referred to any, permitting an evi-dentiary hearing, after verdict, to adduce additional evidence for the sole purpose of validating a trial court ruling made previously on the facts then known to the court.

¶ 20 The conduct of Keller is outside the reach of Pa.R.P.C. 4.2 on the facts here presented. Therefore, we refrain from considering or deciding whether the Federal Employers’ Liability Act might preempt the application of any rule of professional conduct under other circumstances.

¶ 21 Order REVERSED. Case REMANDED for a new trial. Jurisdiction RELINQUISHED.

¶ 22 BECK, J., files a Dissenting Opinion.