Rubin, B. v. Stewart, P.

Superior Court of Pennsylvania·Decided February 15, 2023·No. 411 EDA 2022·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRUCE A. RUBIN : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

PAUL A.R. STEWART, HELM LEGAL : SERVICES, LLC AND ALISHA : ALEJANDRO : No. 411 EDA 2022 :

:

APPEAL OF: PAUL A.R. STEWART : AND HELM LEGAL SERVICES, LLC :

Appeal from the Order Entered January 14, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 181002397

BRUCE A. RUBIN : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

PAUL A.R. STEWART, HELM LEGAL : SERVICES, LLC AND ALISHA : ALEJANDRO : No. 1018 EDA 2022 :

:

APPEAL OF: PAUL A.R. STEWART : AND HELM LEGAL SERVICES, LLC :

Appeal from the Order Entered March 15, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 181002397

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J. MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 15, 2023

These consolidated appeals1 are from two orders entered in the Philadelphia County Court of Common Pleas concerning monetary sanctions imposed against attorney Paul A.R. Stewart (Stewart) and Helm Legal Services, LLC (HLS), defendants in the underlying action asserting wrongful use of civil proceedings. The appeal at Docket No. 411 EDA 2022 is from the January 14, 2022, order granting a motion for sanctions filed by the underlying plaintiff, Bruce A. Rubin (Rubin), and directing Stewart and HLS to pay a monetary sanction of $10,000 ─ $5,000 payable to Beasley Law (Rubin’s counsel) and $5,000 payable to the Office of Judicial Records. The appeal at Docket No. 1018 EDA 2022 is from the order entered March 15, 2022, granting a motion for reconsideration filed by Stewart and HLS, and vacating the January 14th order as to HLS only. In their brief, Stewart and HLS argue the trial court erred and abused its discretion in imposing a $10,000 fine to punish Stewart for misbehavior when there was no evidence he intended to disrupt the proceedings and his actions did not actually do so, and he was not acting as an attorney at the time of the incident. For the reasons below, we vacate the sanctions order at Docket No. 411 EDA 2022 and quash the appeal at Docket No. 1018 EDA 2022.

1On May 17, 2022, this Court consolidated these appeals sua sponte. See Order, 5/17/22.

I. Facts & Procedural History By way of background, Stewart and HLS represented a client, Alisha Alejandro (Alejandro), who sued Rubin (an optician), his business, and various optometrists, for, inter alia, violations of Pennsylvania’s consumer protection law and federal antitrust statutes when Rubin allegedly failed to provide Alejandro with a copy of her eyeglass prescription after an examination. The case was eventually moved to federal court, where a federal district judge dismissed the state claims on summary judgment, and Alejandro withdrew her federal claims.

Thereafter, Rubin filed an action for wrongful use of civil proceedings against Stewart, HLS, and Alejandro in the Philadelphia County Court of Common Pleas.2 The case proceeded to a four-day jury trial commencing on July 14, 2021. On the second day of trial, Jeffrey Bates, Esquire, was called as a witness for Rubin. Attorney Bates had represented one of the optometrists who was also sued in the underlying action, but who later settled the claim. See N.T., 7/15/21, at 44-45, 65-66. Attorney Bates testified regarding his experience dealing with Stewart as opposing counsel, and the reason his client settled despite the lack of merit in the claim. See id. at 49-

66.

2 A detailed recitation of the facts underlying the wrongful use of civil proceedings action can be found in the memorandum decision affirming the judgment of that case on appeal. See Rubin v. Stewart, 2554 EDA 2021 & 2555 EDA 2021.

At one point during Bates’s direct examination, Stewart’s attorney ─ Christopher Del Bove, Esquire ─ objected to an exhibit, and requested a sidebar. See N.T., 7/15/21 at 66-67. The court decided to permit the jury to take a morning break. See id. at 67. After a brief discussion of the objection, the court was in recess. See id. at 70. When the court returned, but before the jury was recalled, Rubin’s counsel informed the court that “[d]uring the break, [ ] Stewart accosted the witness [Bates] to the point where [Stewart’s] counsel had to remove him and threatened to intimidate [the] witness.” Id. at 72. Attorney Del Bove denied the allegations. See id. at 73. The trial court, refused to address the issue at that time so as not to “side-rail or detract” from the trial, but determined that a hearing would be necessary at a later date to consider the allegations. Id. at 73-75. Thereafter, Bates resumed his testimony. See id. at 76. When the jury broke for lunch, the court again addressed the witness intimidation allegations. It directed Rubin’s counsel to file a motion for sanctions, with affidavits and any other documentation, “within ten days of the verdict rendered in [the] case[,]” and Attorney Del Bove to file a response within “20 days thereafter.” Id. at 82.

On July 19, 2021, the jury returned a verdict for Rubin, and against Stewart, HLS, and Alejandro. The jury awarded Rubin $580,000 for expenses incurred in the underlying action and emotional distress, attributing 50% each to Stewart (and HLS) and Alejandro, as well as punitive damages in the amount of $159,000 against Stewart and $5,399.99 against Alejandro. Both Stewart (and HLS) and Alejandro filed timely post-trial motions, which were

denied by order entered November 22, 2021. Each party then filed a timely appeal to this Court on December 8, 2021.3 Meanwhile, on July 29, 2021, ten days after the jury verdict, Rubin filed a motion for sanctions against Stewart. See Rubin’s Supplemental Motion for Sanctions Against Paul A. Stewart, Esq., 7/29/21. The motion sought to sanction Stewart for a violation of the Pennsylvania Rules of Professional Conduct (Pa.R.C.P. 3.4, 4.4, and 8.4), and witness intimation, and requested counsel fees for “dilatory, obdurate or vexatious conduct” or conduct undertaken in “bad faith” pursuant to 42 Pa.C.S. § 2503(7), (9). See id. at 2-3. He sought “at least” $20,000 to (1) reimburse witness Bates for his time, (2) reimburse Rubin’s counsel for his time litigating the motion, and (3) to deter future conduct. See id. at 4. Rubin attached to the motion three witness affidavits, which the trial court summarized as follows:

A. Bates Affidavit

Bates recalls seeing Stewart walking down the center aisle towards the exit[, and] Stewart “turning down the back aisle and walking towards [Bates].” While no words were exchanged between the two, Bates recalls that Stewart “put his face within a few inches of [Bates’s] face, staring [Bates] down.” At that point Stewart was “on the verge of saying something.” Bates recalls Stewart was “shrugged” away by [A]ttorney Del Bove twice while Stewart continued “staring [Bates] down.” Bates concludes the encounter ended when Stewart’s attorneys “were finally able to pull [Stewart] away.”

* * *

3 See 2554 EDA 2021 (appeal of Stewart and HLS); 2555 EDA 2021 (appeal of Alejandro).

[B]. Phillips Affidavit

The encounter was witnessed by others in the courtroom, one of whom was Rachel Phillips. The Phillips affidavit recounts her observations as well as the impact upon her. Phillips is a Penn State University student and was a summer legal assistant in [Rubin’s] counsel’s office. Phillips recalled feeling “worried and intimidated” after witnessing Stewart “accost” Bates. Her factual account substantially mirrors that of Bates except that she reports Stewart mumbling and Bates leaning back when Stewart stood very close and looked down on him.”

[C]. S. Rubin Affidavit

The final affidavit submitted was that of Steven H. Rubin [Brother] an attorney and brother of the plaintiff, [ ] Rubin.

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Rubin, B. v. Stewart, P., (Pa. Ct. App. 2023).

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