Articles Posted in Professional Malpractice & Ethics

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This appeal by allowance involved the automatic suspension of a nursing license based on a felony drug conviction. The question raised was whether, under the applicable statute, reinstatement of the license was precluded for a fixed period of ten years, or was instead permitted at an earlier date subject to the discretion of the state nursing board. Appellee held a license to practice professional nursing in Pennsylvania. In 2013, she pled guilty to one count of felony drug possession in violation of the Controlled Substance Act and received a sentence of probation without verdict. The Commonwealth then petitioned the Board to impose an automatic suspension of Appellee’s nursing license pursuant to Section 15.1(b) of the Nursing Law. As for the length of the suspension, the Board referenced two aspects of the Nursing Law reflecting different time periods. It first observed that Section 15.2 of the law prescribes a five-year minimum period. The Board then referred to Section 6(c) of the Nursing Law, which provided for a ten-year period with regard to the issuance of a new license. After quoting these provisions, the Board, without explanation, indicated that Appellee’s license would be automatically suspended for ten years. Appellee filed exceptions arguing that the ten-year suspension period was improper. Thereafter, the Board entered a final adjudication affirming the notice and order. A divided Commonwealth Court reversed the Board’s holding. The Pennsylvania Supreme Court affirmed: “it is not illogical that the General Assembly would provide for discretionary reinstatement of an automatically suspended license while also requiring a ten-year waiting period for a convicted felon who has never held a license. In the former case the Board has a record of interaction in which the licensee previously demonstrated the requisite skills, knowledge, and moral character to become a licensed professional, and has additionally fulfilled any continuing requirements for licensure over a period of time. … nothing in our decision prevents the Board from seeking revocation of a license, in accordance with the procedures outlined in the Nursing Law, following a conviction under the Controlled Substances Act. … If an automatically-suspended license is ultimately revoked, reinstatement would then be governed by Section 15.2.” View "McGrath v. Bur. of Prof. & Occ. Affairs" on Justia Law

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Appellant Angeles Roca served as a common pleas judge in the family division of the First Judicial District, Philadelphia County. Her term overlapped with those of former Philadelphia Municipal Court Judges Joseph Waters and Dawn Segal. During this period, the FBI was investigating Waters’ activities; the investigation included wiretap surveillance of his telephone communications. Several conversations between Waters and Appellant were recorded in 2011 and 2012. In 2012, Appellant asked Waters for advice on how her son, Ian Rexach, should proceed relative to a tax judgment. Appellant learned that Segal would not be presiding over these types of petitions after June 29, 2012; seeking to ensure that Segal presided over her son’s petition, Appellant called Waters to encourage him to intervene. Segal reviewed the petition for reconsideration and issued a rule to show cause why the relief requested should not be granted. Although Segal did not preside over Rexach’s case thereafter, she called Waters to advise him that she “took care of it” and to “tell her it’s done.” Waters called Appellant and discussed the matter, confirming that it had been “taken care of” by Segal. A default judgment against Rexach was ultimately vacated and the case against him was withdrawn upon his payment of $477 in taxes. In 2015, the Judicial Conduct Board sent Appellant informal letters of inquiry concerning her contacts with other judges. At the time, Appellant was unaware that her conversations with Waters had been recorded. In her written responses, Appellant made several representations which were inconsistent with the content of the recorded phone conversations. In 2016, the Board filed an amended complaint with the CJD alleging that Appellant had violated Article V, Sections 17(b) and 18(d)(1) of the Pennsylvania Constitution, as well as several provisions of Pennsylvania’s former Code of Judicial Conduct (the “Code”). On appeal, Appellant alleged that the CJD’s removal-and-bar sanction was unduly harsh under the circumstances. She requestd a lesser penalty. In this respect, Appellant maintained, first, that the Pennsylvania Supreme Court was not bound by a state constitutional provision, which limited the Court's review of the sanction imposed by the CJD to whether it was lawful. In the alternative, Appellant proffered that the punishment was not lawful because it was inconsistent with prior decisions in cases where the misconduct was not extreme. The Supreme Court found the penalty imposed by the CJD was lawful. That being the case, the Court lacked authority to overturn it. View "In Re: Angeles Roca, Judge" on Justia Law

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In this appeal, the Pennsylvania Supreme Court was asked to determine whether a trial court erred by denying a motion to recuse the entire bench of the Court of Common Pleas of Montgomery County. Appellant James Kravitz was the sole officer, director, and shareholder of several companies known as the Andorra Group, which included Appellants Cherrydale Construction Company, Andorra Springs Development, Inc., and Kravmar, Inc., which was formally known as Eastern Development Enterprises, Incorporated (“Eastern”). Kravitz also owned a piece of property known as the Reserve at Lafayette Hill (“Reserve”). Andorra Springs was formed to develop residential housing on sections of the Reserve. In 1993, Andorra Springs hired Cherrydale as the general contractor to build the homes on the Reserve. Eastern operated as the management and payroll company for the Andorra Group. Appellee Roy Lomas, Sr., d/b/a Roy Lomas Carpet Contractor was the proprietor of a floor covering company. Cherrydale and Lomas entered into a contract which required Lomas to supply and install floor covering in the homes being built by Cherrydale. Soon thereafter, Cherrydale breached that contract by failing to pay. Lomas demanded that Cherrydale submit Lomas’ claim to binding arbitration as mandated by the parties’ contract. The parties arbitrated the matter, and a panel of arbitrators entered an interim partial award in favor of Lomas, finding that Cherrydale breached the parties’ contract. Following Kravitz’s unsuccessful attempt to have the interim award vacated, the arbitrators issued a final award to Lomas. Judgment was entered against Cherrydale in the Court of Common Pleas of Montgomery County. Important to this appeal, then-Attorney, now-Judge Thomas Branca represented Lomas throughout the arbitration proceedings. Since the entry of judgment, Kravitz actively prevented Lomas from collecting his arbitration award by, inter alia, transferring all of the assets out of Cherrydale to himself and other entities under his control. In March 2000, Lomas commenced the instant action against Appellants. Then-Attorney Branca filed the complaint seeking to pierce the corporate veil and to hold Kravitz personally liable for the debt Cherrydale owed to Lomas. Approximately one year later, then-Attorney Branca was elected to serve as a judge on the Court of Common Pleas of Montgomery County. Prior to taking the bench, then Judge-Elect Branca withdrew his appearance in the matter and referred the case to another law firm. After several years of litigation, the parties agreed to a bifurcated bench trial. Although Appellants acknowledged that they were unaware of any bias or prejudice against them on the part of Judge Rogers or any other judge of the Court of Common Pleas of Montgomery County, Appellants maintained that Judge Branca’s continued involvement and financial interest in the case created an “appearance of impropriety” prohibited by the Code of Judicial Conduct. Specifically at issue before the Supreme Court was whether the moving parties waived their recusal claim and, if not, whether the claim had merit. The Court held that the recusal issue was untimely presented to the trial court and, thus, waived. View "Lomas v. Kravitz" on Justia Law

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The Judicial Conduct Board filed a complaint against Magisterial District Judge (MDJ) Thomas Carney, alleging that appellee Carney violated Article V, section 18(d)(1) of the Pennsylvania Constitution and Rules 2A and 11 of the Rules Governing Standards of Conduct of Magisterial District Judges. Following the Court of Judicial Discipline’s dismissal of the Board’s complaint, the Board appealed to the Supreme Court, arguing that the CJD erred in concluding that appellee did not violate any of the enumerated provisions. Two separate incidents gave rise to charges against appellee. One involved his work on an anti-graffiti task force and the solicitation of donations for the group’s work. The other involved a traffic incident in which appellee displayed his middle finger to the occupants of another car he tried to pass along the interstate; the drivers exchanged obscenities, and the incident ended with appellee rolling down his window, driving alongside the other vehicle, and displaying a silver handgun for the other car to see. Police were called, and charges were filed: making terroristic threats, simple assault, disorderly conduct and recklessly endangering another person. Following a trial, the CJD concluded appellee did not violate Rule 11 with regard to the solicitation of donations for the task force. Further, the CJD concluded the Board failed to establish by clear and convincing evidence that appellee’s conduct was so extreme as to bring his office into disrepute. The Supreme Court affirmed in part and reversed and part. The Court affirmed the CJD in its conclusion with regard to the task-force solicitations. But the Court disagreed that the Board did not establish appellee’s conduct was “so extreme as to brought the judicial office itself into disrepute.” That portion of the CJD’s order was reversed and the case remanded for the imposition of a sanction consistent with the misconduct. View "In Re: Carney, Magisterial District Judge" on Justia Law

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The issue on appeal in this case was one of first impression: whether a medical general practitioner who provides incidental mental health treatment to a patient, with whom he then engages in a sexual affair, may be held to a particularized "specialist duty," applicable to mental health professionals, that prohibits consensual sexual contact with patients, such that the defendant general practitioner may be subject to medical malpractice liability in tort. Upon review of the trial court record, the Supreme Court declined to impose such a duty as a matter of Pennsylvania common law. Accordingly, the Court vacated the Superior Court's decision and remanded the case for further proceedings on any preserved issues remain that were not addressed as a result of the Superior Court's disposition. View "Thierfelder v. Wolfert" on Justia Law

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The issue before the Supreme Court was whether the Court of Judicial Discipline ("CJD") erred in permanently removing Lehigh County Magisterial District Judge MaryEsther S. Merlo ("Appellant") from judicial office. After careful consideration, the Court found the CJD's sanction was lawful under the circumstances of this case. With regard to Appellant's work habits, the CJD concluded her practice of repeatedly calling off and consistently arriving late constituted a violation of MDJ Rule 4C, and that her conduct was "so extreme as to bring the judicial office into disrepute," constituting a violation of Pa. Const. art. V, sec. 18(d)(1). The CJD further determined Appellant's repeated absences, repeated continuances, and failure to dispose of truancy cases and sign paperwork in a timely manner demonstrated that she did not devote the time necessary for the prompt and proper disposition of the business of her office, in violation of MDJ Rule 3A, and that she neglected and failed to perform the duties of her office, again in violation of Pa. Const. art. V, sec. 18(d)(1). Finally, the CJD concluded Appellant's conduct violated the mandate of MDJ Rule 5A that a magisterial district judge diligently discharge her administrative duties and facilitate the performance of the administrative responsibilities of her staff, noting that Appellant's conduct actually interfered with, rather than facilitated, her staff's performance of their responsibilities: "[i]t is beyond hypocritical for a judge who repeatedly fails to appear, or consistently appears late, for scheduled court proceedings to lecture and impose sanctions upon a juvenile who is appearing before the judge due to truancy issues. Such conduct undermines the very purpose of the proceedings and makes a mockery of the judicial system." The Supreme Court affirmed the decision of the CJD removing Appellant from judicial office and precluding her from holding judicial office in the future. View "In Re: Maryesther S. Merlo, Magisterial District Judge" on Justia Law