HomeMy WebLinkAbout02-4847 CivilSYLVIA A. STARK,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
TAX CLAIM BUREAU OF
CUMBERLAND COUNTY AND
GENEX PROPERTIES, LLC,
DEFENDANTS
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IN RE: PETITION OF DEFENDANT, GENEX PROPERTIES, LLC
TO DISQUALIFY COUNSEL FOR PLAINTIFF
OPINION AND ORDER OF COURT
Bayley, J., May 23, 2003:--
On December 27, 2002, Sylvia A. Stark, the owner of 43 Oakwood Drive,
Borough of Wormleysburg, Cumberland County, who is represented by Norman M.
Yoffe, Esquire, filed objections and exceptions to an upset sale of that property for
delinquent taxes. Genex Properties, LLC was the purchaser for $16,178.88. Stark
maintains that "the sale was improper, invalid and illegal" for the following reasons:
a) Prior to the tax sale, Plaintiff paid more than 25% of the County,
Borough and School taxes for the year 2000 (being the taxes for the year
for which subject real estate was sold).
b) Plaintiff had paid to the TCB $300.00 on September 26, 2002
and another $700.00 on the same date (several minutes later).
c) The total taxes for year 2000 was the sum of $3,603.54.
d) Although the 2001 taxes were then due in the amount of
$4,097.85, the tax claim for these had not been absolute.
e) Notwithstanding owners payment of more than 25% of the year
2000 taxes, the TCB failed to fulfill its affirmative duty to advise owner of
the option to enter into an installment agreement to pay the balance of the
taxes, as required by §5860.603 of the Act (and appellate cases relating
thereto).
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f) The notices provided by the TCB with respect to the certified
notice required by 72 P.S. §5860.602(e) (1) of the Act, the posting notice
required by 72 P.S. §5860.602(e) (3) of the Act, the published notice
required by 72 P.S. §5860.602(a) of the Act and the owner-occupant
notice required by 72 P.S. 95860.601(a) (3) of the Act were erroneous
and misleading in that:
(1) Said notice (in the next to last paragraph) refers to a
statutory reference of 72 P.S. §560.502(a) and 503(a), when in fact
there are no such sections in Purdon's Pennsylvania Statutes.
(2) These Purdon's references are obviously intended to
refer to 72 P.S. §5860.502a and §5860.503a, but those sections
have nothing to do with the 25% rule, which is the subject of
95860.603.
(3) The last sentence of the paragraph heretofore referred
to in the aforesaid notice then provides that the installment option
provision isn't applicable in Cumberland County (in bold type).
(4) Cumberland County has no authority to vitiate the
provision of 95860.603 and in fact has not done so.
(5) What Cumberland County may have made inapplicable
are the provisions of §5860.502a and §5860.503a which by its own
specific verbiage makes same applicable in a particular County
only at the option of that County.
(6) Owner was misled by the foregoing verbiage and in fact
believed that the installment option of 72 P.S. 95860.603 wasn't
available to her regardless of what percentage she paid on her due
taxes, and that nothing less than 100% payment prior to sale would
stop subject real estate from being sold. The foregoing is also
consistent with the specific (albeit erroneous) advice given to her
by the TCB clerk.
g) In addition thereto, subject real estate was not properly posted
in that when the posting officer had only (probably partially) affixed the
notice to the front door of subject real estate, owner came to the door,
whereupon the poster removed the notice from the door and handed
same to owner.
On April 4, 2003, defendant, Genex Properties, LLC, filed a petition to disqualify
Yoffe as counsel for Stark. A Rule was entered to show cause why the relief should not
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be granted. Stark opposes the relief. A hearing was conducted on May 22, 2005.1
James Roxbury is the sole owner of Genex Properties, LLC. Roxbury as an
individual and Genex are in the business of purchasing real estate at tax sales. From
1994 through May, 2002, Yoffe represented Roxbury individually on approximately ten
occasions and Genex on two occasions defending objections and exceptions filed to
tax sales in which they purchased real estate. Yoffe ceased to represent Roxbury and
Genex after he completed work on a case in York County in May, 2002. In the case
sub judice, Yoffe called Roxbury to make inquiry regarding settlement. Thereafter,
Genex filed this motion for disqualification. Roxbury testified that he has had
discussions with Yoffe during the periods of his representation in which Yoffe learned
his strategies in defending against objections and exceptions to tax sales, and his
theories of settlement. Yoffe testified that he has never received any confidential
information from Roxbury or Genex. Nor did he learn anything during his
representation that would have any bearing on the objections and exceptions he has
filed on behalf of Stark in which he raises legal issues that are different from any he
ever raised in cases involving Genex and Roxbury.
DISCUSSION
Rule 1.9 of the Rules of Professional Conduct provides:
Conflict of Interest: Former Client
A lawyer who has formerly represented a client in a matter shall not
~ The Tax Claim Bureau of Cumberland County takes no position on the petition.
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thereafter:
(a) represent another person in the same or a substantially
related matter in which that person's interests are materially adverse
to the interests of the former client unless the former client consents
after a full disclosure of the circumstances and consultation; or
(b) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 would permit with
respect to a client or when the information has become generally
known. (Emphasis added.)
The Comment to the Rule provides:
After termination of a client-lawyer relationship, a lawyer may not
represent another client except in conformity with this Rule ....
The scope of a "matter" for purposes of rule 1.9(a) may depend on
the facts of a particular situation or transaction. The lawyer's involvement
in a matter can also be a question of degree .... a lawyer who
recurrently handled a type of problem for a former client is not
precluded from later representing another client in another wholly
distinct problem of that type even through the subsequent
representation involves a position adverse to the prior client ....
The underlying question is whether the lawyer was so involved in the
matter that the subsequent representation can be justly regarded as a
changing of sides in the matter in question.
Information acquired by the lawyer in the course of representing a
client may not subsequently be used by the lawyer to the disadvantage of
the client. However, the fact that a lawyer has once served a client does
not preclude the lawyer from using generally known information about that
client when later representing another client.
Disqualification from subsequent representation is for the
protection of clients... (Emphasis added.)
In Triffin v. DiSalvo, 434 Pa. Super. 326 (1994), the Superior Court of
Pennsylvania utilized the "substantial relationship test" to determine, based on the
nature and scope of the prior representation, whether confidential information that
might have been gained in the first representation may be used to the determent of the
former client in the subsequent action. Quoting from Realco Services, Inc. v. Holt,
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479 F.Supp. 867 (E.D. Pa. 1979), the court stated that the test is:
If the client in the prior representation might have imparted confidential
information to his lawyer to aid the lawyer in dealing with particular
issues, and if issues arise in the second suit which would permit the use
of such confidences against the original client, the substantial relationship
test is met, and disqualification is required.
See also Estate of Pew, 440 Pa. Super. 195 (1994).
The objections and exceptions Yoffe filed on behalf of Stark raise legal issues
based on alleged violations of statutes applicable to the tax sale of Stark's property.
Nothing that Roxbury says he told Yoffe during prior representations would aid him in
litigating these issues. As to strategy, either the statutory requirements to conduct a
lawful tax sale of Stark's property were met or they were not. If they were not,
applicable law will determine whether Stark is entitled to relief. Roxbury has not
imparted any confidential information to Yoffe. Litigating objections and exceptions to
tax sales involves legal issues applicable to a particular case. There is nothing
esoteric about such legal work. Any information Yoffe might have obtained from
Roxbury as to his settlement strategy can hardly be utilized against Genex. Whether
Roxbury is amenable to settlement is strictly up to him notwithstanding how he may
have settled other cases. Accordingly, Yoffe is not precluded from representing Stark
on these objections and exceptions to the tax sale which are adverse to the position of
Genex even though he previously handled objections and exceptions to tax sales on
behalf of Genex.
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AND NOW, this
LLC to disqualify counsel for plaintiff, IS DISMISSED.
ORDER OF COURT
day of May, 2003, the petition of Genex Properties,
By the Court,
Norman M. Yoffe, Esquire
For Sylvia A. Stark
Kurt A. Blake, Esquire
29 East Philadelphia Street
York, PA 17401
For Genex Properties, LLC
Stephen D. Tiley, Esquire
For Tax Claim Bureau of Cumberland County
:sal
Edgar B. Bayley, J.
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