McCarthy v. SEPTA

772 A.2d 987

Jonann McCARTHY, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellee.

Superior Court of Pennsylvania.

Argued December 5, 2000.

Filed April 10, 2001.

Reargument Denied June 12, 2001.

William J. Keller, Philadelphia, for appellant.

James F. Kilcur, Philadelphia, for appellee.

Before JOHNSON, TODD, and BECK, JJ.

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

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