Loading...
HomeMy WebLinkAbout94-6499 CIVILMICHAEL LIEBMAN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. KEEN LEASING, INC., DEFENDANT 94-6499 CIVIL TERM IN RE: PLAINTIFF'S PETITION FOR COUNSEL FEES AND COSTS BEFORE BAYLEY, J. OPINION AND ORDER OF COURT BAYLEY, J., January 10, 2002:-- Plaintiff, Michael Liebman, instituted this suit against defendant, Keen Leasing, Inc., for damages for destruction of his truck/tractor. Plaintiff maintained (1) that defendant was negligent in performing an in-frame overhaul of his Caterpillar diesel truck engine, and (2) that negligence subsequently caused a fire in the engine compartment that destroyed the truck/tractor. On September 15, 2000, a jury found that defendant was not negligent. Plaintiff filed a motion for post-trial relief in which he claimed, inter alia, that he was entitled to a new trial because Robert Laukaitis, who was qualified as an expert and testified for the defense, presented false testimony as to his educational qualifications. Following a hearing on that issue, we entered an order on March 15, 2001, supported by a comprehensive opinion, granting plaintiff a new trial. We found that Robert Laukaitis committed perjury when he testified at trial that he attended the University of Pennsylvania, from which he received a degree in 1962 in aeronautical, design and stress engineering. In granting plaintiff a new trial based on the after-discovered evidence of perjured testimony, we applied the standards in 94-6499 CIVIL TERM Cook Appeal, 107 Pa. Commw. 207 (1987). That resolution made it unnecessary to address the other issues that were raised by plaintiff, and briefed by the parties, in plaintiff's motion for post-trial relief. Plaintiff now seeks to recover his counsel fees and costs incurred in (1) proving the perjured testimony of Robert Laukaitis, and (2) securing a new trial based on that perjury. The attorney fee sought is $4,155.00, with costs of $1,444.22, for a total of $5,599.22. Before trial, plaintiff's counsel requested from defense counsel the curriculum vitae of Robert Laukaitis. The defense did not give plaintiff's counsel the document until the day before the trial started. During the trial, plaintiff's counsel became suspicious of the claimed degree in aeronautical, design and stress engineering from the University of Pennsylvania. He probed Laukaitis on cross-examination, but Laukaitis remained firm in his testimony that he had earned such a degree in 1962. After the trial, plaintiff's counsel contacted the University of Pennsylvania as to whether Robert Laukaitis had received that degree. On November 2, 2000, plaintiff's counsel received a letter signed by a paralegal in the Office of General Counsel of the University of Pennsylvania, advising that no records were located indicating that Robert Laukaitis had ever matriculated at the University. Defense counsel was not willing, based on that letter, to stipulate that Laukaitis had falsified his academic credentials. Plaintiff then, with defense counsel present, in Philadelphia, took the deposition of an assistant registrar in charge of student records at the University of Pennsylvania. That testimony revealed that Robert Laukaitis never attended the University of Pennsylvania, much less earned any degree in aeronautical, design and stress engineering. Thereafter, plaintiff's counsel, with defense -2- 94-6499 CIVIL TERM counsel present, took the deposition of Robert Laukaitis. Laukaitis, with his own criminal lawyer present, refused on Fifth Amendment grounds to answer any substantive questions. On March 2, 2001, we conducted the hearing on the perjury issue which resulted in the order for a new trial on March 15, 2001.1 Plaintiff suggests that once the letter of November 2, 2000, was received from the paralegal in the Office of General Counsel from the University of Pennsylvania, advising that there was no record indicating that Robert Laukaitis had ever matriculated to the University, defendant's continued opposition to the claim of perjury was "baseless." Plaintiff maintains that once that letter put defendant on notice of the perjury of its expert witness, the defense had a duty to independently investigate whether Robert Laukaitis falsified his academic credentials, and to advise plaintiff of the results of that investigation. By not doing that, plaintiff argues that defendant's conduct necessitated the expense to him taking the depositions of the University of Pennsylvania registrar in Philadelphia, and of Robert Laukaitis, therefore, defendant's conduct was dilatory and obdurate. DISCUSSION The Judicial Code at 42 Pa.C.S. Section 2503(7), provides for an award of "[c]ounsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter." Black's Law Dictionary, Seventh Edition, defines "dilatory" as, "Tending to cause delay." Merriam Webster's Collegiate Dictionary, Tenth Edition, defines 1 Robert Laukaitis has pled guilty to a criminal count of perjury. pending. -3- His sentence is 94-6499 CIVIL TERM "obdurate," as, "stubbornly persistent in wrongdoing; hardened in feelings; resistant to persuasion or softening influences." Initially, we reject plaintiff's claim that he could be entitled to his costs and attorney fees for having the record transcribed, and briefing and arguing his motion for a new trial. First, the motion included five grounds other than the perjury claim, one of which was that the verdict was against the "weight of the credible evidence." Defendant opposed all of plaintiff's grounds for a new trial. Second, defendant's legal position was that even if the court concluded that Robert Laukaitis had falsified his academic credentials and committed perjury at trial, such perjury still did not warrant the grant of a new trial. While we found that the perjury warranted the grant of a new trial under the standards set forth in Cook Appeal, supra, this was a legitimate issue as asserted by defendant. Thus, defendant's conduct in opposing plaintiff's motion to post-trial relief was not dilatory or obdurate. Plaintiff maintains that he is entitled to attorney fees and costs because defendant would not stipulate that Robert Laukaitis falsified his academic credentials after defendant was informed of the letter of November 2, 2000, from the paralegal in the Office of General Counsel of the University of Pennsylvania. Plaintiff maintains the letter was evidence that proved the truth of the matter asserted. The Uniform Business Records as Evidence Act at 42 Pa.C.S. Section 6108(b), provides: A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of -4- 94-6499 CIVIL TERM preparation were such as to justify its admission. The letter from the paralegal of the Office of General Counsel of the University of Pennsylvania was not an admissible document under 42 Pa.C.S. § 6108(b). Plaintiff obviously recognized that the letter would not be admissible at a hearing on the issue of whether Robert Laukaitis committed perjury at trial because he chose to take the depositions of the University of Pennsylvania Registrar and Robert Laukaitis. We find no legal basis for awarding attorney fees against defendant simply because it refused to stipulate to the truth of the contents of a letter that was inadmissible into evidence. Plaintiff, citing Rule of Professional Conduct 3.3, maintains that "defense counsel's active and continuing opposition to plaintiff's truth-finding procedure has at least passively, if not actively, made him a participant in deception toward the Court." Rule 3.3, provides: (a) A lawyer shall not knowingly... (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. (Emphasis added.) The letter of November 2, 2000, from the Office of General Counsel of the University of Pennsylvania, clearly put defendant on notice of the falsity of the academic credentials testified to at trail by its expert witness.2 Thereafter, any reasonable investigation by the defense would have confirmed that fact. Defense counsel did not take any remedial measures. The Note on Scope of the Rules of Professional Conduct states: Failure to comply with an obligation or prohibition imposed by a 2 There is no evidence that at trial, defendant, or its counsel, was aware that Robert Laukaitis had not, as he testified, earned a degree in 1962 from the University of Pennsylvania in aeronautical, design and stress engineering. -5- 94-6499 CIVIL TERM Rule is a basis for invoking the disciplinary process .... Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. Notwithstanding the scope of the Rules, a violation of an ethical rule that also violates the law may still form a basis for relief. See Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241 (1992); Capozzi v. Latsha & Capozzi P.C., 50 Cumberland L.J. 119 (2001). Here, defendant's failure to take reasonable remedial measures once it had reason to know of the falsity of material evidence that it had offered at trial was dilatory in that it tended to cause delay.3 We believe that the defense failed to appreciate the significance of the dual issues, and that resulted in its stubborn persistence and the hardening of feelings based on its position that even if Laukaitis committed perjury (the first issue), it made no difference because plaintiff was still not entitled to a new trial (the second issue). Thus, under 42 Pa.C.S. Section 2503(7), defendant's conduct was obdurate as well as dilatory. Plaintiff is entitled to his reasonable counsel fees and costs in proving the perjury of Robert Laukaitis. 3 Following receipt of the letter of November 2, 2000, from the Office of the General Counsel of the University of Pennsylvania, the deposition of the University Registrar was taken on February 26, 2001, and the deposition of Robert Laukaitis was taken on February 27, 2001. The parties agreed that those depositions would be admitted into -6- 94-6499 CIVIL TERM We will make an award as follows:4 ATTORNEY FEES DATE DESCRIPTION HOURS AMOUNT Nov-02-2000 Receipt and review of response to 0.30 45.00 subpoena issued to Penn registrar; letter to Atty. Shilling re: same. Jan-16-2001 Preparation and service of discovery 0.40 60.00 requests to Defendant seeking documents pertaining to Mr. Laukaitis' alleged college education. Feb-23-2001 Telephone calls w/counsel, court 0.40 60.00 reporter and University of Pa. Registrar confirming February 26 and 27 depositions. Feb-26-2001 Travel to Philadelphia and return and 5.50 825.00 taking deposition of Asst. Registrar at University of Pennsylvania (Janet Ansert). Feb-27-2001 Taking deposition or Robert Laukaitis 1.20 180.00 in Harrisburg. TOTAL 7.80 1,170.00 COSTS Feb-26-2001 Travel to Philadelphia- train, taxi, 50.50 parking at Hbg. Station (Univ. of Penn. deposition). evidence at the hearing on the perjury issue which was on March 2, 2001. 4 Because plaintiff's post-trial motion had to be briefed and argued on the issue of whether the perjury of Robert Laukaitis warranted a new trial, and on the other four issues that were raised by plaintiff, we have not awarded counsel fees and costs for the briefing and arguing of the motion or the preparation of the transcript. -7- 94-6499 CIVIL TERM Feb-28-2001 Feb-28-2001 Deposition transcript of Janet Ansert, University of Penn. Asst. Registrar. Deposition transcript of Robert Laukaitis 131.02 132.35 TOTAL 313.87 TOTAL 1,483.87 ORDER OF COURT day of January, 2002, the petition of plaintiff for an AND NOW, this award of attorney fees and costs, IS GRANTED. Plaintiff is awarded attorney fees of $1,170.00 and costs of $313.87 for a total of $1,483.87. By the Court, G. Thomas Miller, Esquire For Plaintiff C. William Shilling, Esquire For Defendant :saa Edgar B. Bayley, J. -8-