McCarthy v. Southeastern Pennsylvania Transportation Authority

major- garding Similarly, McCormick.

ity’s “any delay contention that caused police,” McCormick’s own lies to the is First, investigators

unreasonable. did suspicions

have of McCormick in 1979.

Moreover, simply unrealistic as- that a suspect

sume murder will assist

police pros- his own conviction. While a lies,

ecution be hindered Com- job,

monwealth’s in its is to investigations,

get beneath possible decep- the surface of

tion those involved. sum, 11 In prosecu- believe that the delay negligent,

tion’s and that

McCormick should now be required

defend these charges. McCARTHY,

Jonann Appellant,

v.

SOUTHEASTERN PENNSYLVANIA AUTHORITY,

TRANSPORTATION

Appellee.

Superior of Pennsylvania. Court 5,

Argued Dec. 2000. April

Filed 2001.

Reargument Denied June Rules of Pennsylvania Professional McCarthy

Conduct. also asserts that the imposition trial court’s of sanctions de- prived her her choice of and counsel a fair right violated constitutional to her addition, that McCarthy argues trial. In to the trial court’s decision to force her represented trial associ- proceed to con- disqualified ate of the counsel was trary Finally, McCarthy to law. asserts to application that the of 4.2 Pa.R.P.C. case contrary facts of this was to the Su- premacy has Congress Clause because precluded all interference with Keller, J. Philadelphia, ap- for William FELA witnesses in cases. We conclude pellant. that the trial court although may sanction Kilcur, F. Philadelphia, appel- James for Pennsylva- attorneys for violations of the lee. nia Rules of Professional in cer- Conduct cases, tain the trial court did not have JOHNSON, TODD, BECK, Before and authority sanction basis Keller on that JJ. in the case. that instant We also conclude JOHNSON, J.: authority even if trial court had Keller, sanction the evidence of record

¶ 1 In this appeal, we re-examine support finding does not the court’s that when a trial court authority has the Ultimately, Keller violated Pa.R.P.C. 4.2. Pennsylva sanction counsel based on the that we conclude the trial court denied nia Rules Professional Conduct. We counsel, and, right to McCarthy’s choice of that conclude a trial court can sanction therefore, McCarthy tri- was denied a fair by disqualification counsel on a based vio reasons, on the al. Based above we re- lation of the Rules of Professional Conduct relief denying post-trial verse the order the trial when court has determined for a and remand new trial. disqualification that is needed ensure parties that the receive the fair trial that McCarthy employer, sued her SEP- process requires. TA, due conclude We also to the pursuant Employers’ Federal Act, that where 51-60, § even circumstances are such as Liability com- U.S.C. for sanction for a of a pensation injuries allow violation Rule stemming from Conduct, of Professional the court must At workplace accident. the time support accident, have evidence McCarthy record to employed was that McCarthy conclusion did violate a track SEPTA as foreman. particular rule. injured while tim- unloading railroad McCarthy work bers at a site. asserts ¶ 2 McCarthy appeals Jonann from the injuries resulted from the unavail- her denying her order Motion for Post Trial equipment, as ability proper well McCarthy Relief. asserts that the trial man- provide sufficient SEPTA’s failure her concluding court erred attor- power adequate working conditions. (William Keller) ney’s communi- ex-parte ¶4 trial, present em- dis- past cation with Before and after SEPTA SEPTA 4.2 state- ployees was unethical under Rule covered that Keller had obtained Keller’s employees. and two with Keller and After prior present ments one testimony, presence hearing employees outside the Davis’s court SEPTA Pontolillo, counsel, testimony a Motion in Limine heard from Thomas SEPTA filed investigator, regarding his to Preclude of Statements and to Keller’s com- the Use present Contacting past and Prohibit Further of SEP- munications with SEPTA After this Employees TA Outside the Presence of on behalf Keller. asserted that it felt McCarthy reply testimony, Counsel. filed a to the inappro- “highly The trial dis- Motion Limine. Keller’s conduct addition, 17, priate.” in Limine SEPTA’s posed May Motion to be dis- ought moved Keller on record as follows: that “Mr. very least qualified or at the as counsel ready I’m motion in limine. with the interviewed that that he’s any witnesses that, Okay. I’m on it going to rule that process discovery outside the normal used, them, may may not be all three of be- testifying from on should precluded going not be I’m the used. follow case, a mini- in this at plaintiff half of the Allen, ruling Judge which is in here responded mum.” court then The trial get somewhere. You’re welcome following: with the you closing. whatever can from the may You use You’re welcome to. not is that My ... of this event recollection Okay. basing And the statements. I’m in motion in I the morning discussed primarily language it of the com- on a record I not make limine, did although Pennsylvania ments to Rule of Evidence I was very ... I it clear made [a]nd 803(25) 803, specifically the comment to judge’s in direction of leaning in which talk about Federal Rule of they Maritrans, is which v. solution in Belote 801(D)(2) stating Evidence dif- that the 136528,East- reported as 1998 WL here ference the federal and the between that at Pennsylvania. ern So District of Pennsylvania organiza- formulations 9:30, time, he was approximately tional; effect. has no substantive close, I very don’t but notice that was Okay. Off record. I think formally. think that I did it 2:30, prohibit- I did ... it later about (“N.T.”), 5/17/99, 4- Testimony at priate.” 1999, regarding the fact the trial court leaning “was making ruling towards” a ¶ authority 8 A to disqualify court’s binding McCarthy; not on there was no counsel based on Rules of Professional order in place during the morning. See Conduct is limited. In In re Estate of Hendrick, 102, Jackson v. 710 A.2d 105 Pedrick, 530, (1984), 505 Pa. 482 A.2d 215 (Pa.Cmwlth.1998) (stating that for an or Supreme our Court stated that “this court effective, entered). der to be it must be has held in several cases that counsel can Even if the court’s statement had been disqualified be for of the [Rules violations binding, the case that the trial court refer of disqualifi Conduct] Professional where Maritrans, enced authority, as its Belote v. parties cation is [e]nsure needed to (E.D.Pa.1998), 1998 WL 136523 discusses process receive the fair trial which due the scope application 4.2, (em and requires.” Pedrick, Pa.R.P.C. A.2d at 221 803(25), added). not upon P.R.E. which the court phasis Supreme Our Court con Belote, based its decision. 1998 WL tinued: (E.D.Pa.1998). Therefore, the as Thus, appropriate while under

sertion made the trial court that Keller certain for trial courts circumstances was on notice that should he have no fur enforce the Professional Code of Re- ther contact or past present sponsibility by disqualifying counsel or ruling because of its on the participation his restraining otherwise or day Motion unsup Limine the before is litigation conduct in before them in or- ported N.T., 5/18/99, the record. See protect rights litigants der to to a 29-30, 32. trial, fair we are not inclined to extend power enforcement and allow our McCarthy 7 In Issues trial courts to use the Can- themselves asserts that the trial court abused its dis punish ons to alter substantive law or to by imposing cretion sanctions based on attorney misconduct. deprived Pa.R.P.C. 4.2 that her of her Id. right recognize to counsel. a We Court, addition, Supreme In authority

court’s to sanction counsel our based SEPTA, Reilly by Reilly violations of the Rules of v. 507 Pa. Professional Lambert, (1985), Conduct. authority Commonwealth v. 489 A.2d 1291 limited the trial, fair receiving to sanc- SEPTA from a appellate trial and courts vented of both properly for of the Rules not have concluded tion counsel violations it could prevented Professional Conduct as follows: actions Keller’s would have trial, challenged since all the evidence fair Pa.R.P.C.] [the Perceived violations of Hence, already excluded. See id. we or the was permit do not the trial courts alleged that since Pa. appellate to alter conclude Keller’s courts intermediate law, rules, pre- evidentiary pre- 4.2 violations not have the rules of R.P.C. trial, More fair sumptions proof. receiving or SEPTA from burdens vented importantly, disqualifying violations of those Codes other reason for proper subject punish are not a for consider- have him for Keller would been to impose the lower courts to alleged ation of 4.2 misconduct. As his Pa.R.P.C. judicial punishment above, or trial court does discussed misconduct. generalized authority punish have attor- neys on Pa.R.P.C. violations. See based ‡ }{: :ji ^ 1299; Pedrick, 482 Reilly, 489 A.2d at delegated have not [W]e abdicated Accordingly, the trial court A.2d at supervisory authority in en- any of our sanctioning Keller its discretion in abused forcing these of conduct standards alleged of his Pa.R.P.C. 4.2 on the basis Superior presume Court. To disqualifying Keller violation alleged or its violations can be Code McCarthy’s counsel. than by any other reviewed tribunal misapprehension those we authorize is a if properly 11 Even trial court Code, and is seen purpose under the have sanctioned Keller could into the impermissible meddling as an generally, of Rules Professional Conduct functions supervisory administrative enough not in the record there is evidence judiciary. over entire of this Court the responsibilities of the SEP explaining the added). (emphasis A.2d at Reilly, 489 that support TA a conclusion ap- Reilly clearly limits the intermediate from contact protected the were im- authority to pellate and trial courts’ 4.2. Pa.R.P.C. by opposing counsel under pose punishments for violations assertion, we Contrary the Dissent’s Professional Rules of Conduct. not Pa. that 4.2 and perceive Pa.R.P.C. case, 10 In the Keller’s instant 803(25) Indeed, R.E. this issue. controls no 4.2 had alleged violation Pa.R.P.C. Keller disqualifying the trial court’s order See litigation. on the conduct of the effect this case on Pa.R.P.C. 4.2. from was based Pedrick, fact, A.2d at In the trial 4.2 states: Rule of Professional Conduct already any had error court corrected client, shall lawyer In a representing a by grant litigation affected would have the subject of the not communicate about preventing motion in limine ing SEPTA’s law- representation party with employees’ state the introduction three another represented by to be yer knows Any parte trial. contact Kel ments at ex matter, lawyer in the lawyer unless past or em present ler had with SEPTA lawyer or is has the consent the other 4.2 could ployees that violated Pa.R.P.C. by law to do so. authorized proper and was have been rectified 4.2. The rules committee of the Rules of Evidence. Pa.R.P.C. application Therefore, per if the Rules of Professional Conduct court did framed even the trial These comments to the rules. analysis of conduct based included form an Keller’s to the pre- obligations do not have comments add on whether conduct would rules, merely provide guidance but in- court properly for could conclude that Keller However, terpretation body violated 4.2. the rule. See Pa.R.P.C. Pa.R.P.C., such Al- failed to adduce evidence. “Scope”. The comment to Pa. though did states, pertinent testimony 4.2 the trial court take part, R.P.C. employee, from one follows: Fernando Davis, parte regarding his ex communica- organization, the case of an this Rule employees, tion with Keller’s Keller and prohibits lawyer communications testimony insubstantial with re- party concerning one the matter in gard to employee. his role as a SEPTA representation persons having N.T., at 4-12. Davis testified that 5/18/99 managerial responsibility on behalf of he was “a manager, maintenance a track organization, and with other foreman in depart- the line maintenance person whose act or omission in connec- ment” for SEPTA. Id. at 5. Davis did may tion with that imputed matter explain, however, not per- what work he organization purposes for the of civil formed respon- for SEPTA or what kind of or liability criminal or whose statement sibility job his him to required undertake. part constitute an admission organization. 13 Davis also testified Booker Johnson, ex-employee of SEPTA and Comment to interpret 4.2. Pa.R.P.C. We Kearst, Mike employee a current of SEP- this instructing comment as counsel to de- TA, were at Keller’s office on 5/17/99. termine, having parte before ex contact However, Davis did attest to Johnson’s employee, with an position and nature positions Kearst’s SEPTA and the of employment of that in regard trial court testimony did not hear to the possibility that given by a statement either Johnson or Both McCarthy Kearst. that employee potentially admitted at and SEPTA filed identical witness state- impute liability could onto their em- ments taken from Kearst and Johnson ployer. We find no precedential law that respective with their regard- memoranda importation mandates the of the definition limine, ing the motion in but neither of the of admission as described Pa.R.E. parties’ positions statements discuss the at 803(25) Moreover, 4.2. Pa.R.P.C. we SEPTA. precedent find no support importa- the ¶ 14 testimony tion of The trial court also heard this definition. Pontolillo, from Thomas an investigator ¶ 12 key The information needed employed by Pontolillo Keller. testified by the trial court if to determine an em that he accident discussed the with Mr. ployee qualifies protection for from ex Grenfeld, “yard whom he identified as a parte with opposing communication coun SEPTA, master” for Pontolillo did not but employee sel is what status that has within testify “yard of a to the duties master” employee’s i.e., whether, the organization, and testimony the trial court did hear status, virtue of the employee’s a state from 18-19. Grenfeld. Id. at ment made impute this could ¶ liability to company. acknowledge We Consequently, 15 the evidence in that gathered support had the trial enough finding court the record does not a that parte evidence to conclude at least one of of who had ex the SEPTA employees managerial who had an ex communication Keller had with parte responsibility, positions communication with Keller fit within were within protected party definition of a for the SEPTA such that acts or their omissions 4.2, purposes of McCarthy’s Pa.R.P.C. then the trial connection to accident could SEPTA, liability or that their ord is insufficient to establish impute onto preclusion “admis- order was could considered warranted with re- statements be part any Pa. one or all of spect on the of SEPTA. See the SEPTA sions” it applied.” as- to whom Contrary Judge R.P.C. 4.2. to the Dissent’s witnesses Id. sertion, a joins Majority the trial not make with the in concluding court did Beck finding fact or on record that preclusion even state order should not be state- were whose witnesses affirmed on the record before this Court. may However, for the appro- ments constitute admissions disagree Id. we as to the 4.2. The trial purposes Pa.R.P.C. remedy. priate those em- finding regarding court’s and af- Judge Beck remand would 803(25), ployees was that based on Pa.R.E. “an to estab- party opportunity each ford admitted as their statements could not be preclu- position respect to the lish its Therefore, trial. we conclude evidence at unaware sion order.” Id. We are removing Kel- that the trial court erred future such a authority permit that would on his violation of purported ler based a tried before This matter was course. 4.2. Pa.R.P.C. for the jury returned verdict jury. SEPTA, defendant, judgment final 16 The two errors discussed post- denial of following the was entered the trial Keller above led court to sanction Judge Beck By remanding, trial motions. by disquali 4.2 for violation Pa.R.P.C. reopen court to authorize McCarthy would representing fying Keller “evidentiary an the record and conduct Supreme explained trial. Our Court hearing” parties at which the concerns to before dis dual be considered ex- propriety allowed to revisit the an as follows: qualifying order, “evidence” presenting such clusion reviewing approach our task as a We to ad- party appropriate believed as each in this of our re- case conscious Id. at 29-30. vance its cause. balance, preserve deli- sponsibility be, though it an indi- cate between we con procedure, 19 Such a freely chosen right vidual’s his own clude, The exclu by law. is unauthorized to maintain the need evidentiary strictly sion of evidence professional highest ethical standards of Van v. Allied matter. See Wilkerson is essential responsibility. This balance Lines, Inc., A.2d Pa.Super. public’s integrity if in the trust (1987) a trial court’s (stating Bar is to be preserved. appel evidentiary rulings, preserved if omitted). Slater, (citation 338 A.2d at 590 review, according to will late be tested no evi- we that there is Because conclude evidence). appro rules of Its established support finding a that Keller dence by review always is priateness determined of Pro- a of the Rules committed violation time the existing record at of the Conduct, why no reason fessional we find case law ruling is made. There is no denied her McCarthy should have been a trial an evi authorizing judge to revisit counsel.” right freely own chosen “[her] closed, dentiary ruling, after the record Id. evi purpose receiving of additional for the jury inability ruling. colleague evidentiary her dence on My suggests appeal wit- cannot be modified after “preclusion [the to conclude verdict v. La Salle appro- taken. In Keleher testimony altogether was has been nesses’s] (1959), A.2d 835 College, at 394 Pa. priate.” Dissenting Opinion 1001. that where Supreme rec- Court articulated Judge “[t]he Beck also concedes that our ¶2 presents In appeal keeping record on the Statement of issues with disputes involved and no factual remain Questions in appellant’s forth Involved set resolved, will not our Court remand the brief, I analyze the issues as follows: proceed- case the trial court for further applied 4.2 1. Whether Rule to the ings procedural to correct or other errors issue; SEPTA by Keleher, made the trial See court. Therefore, apply, 2. If A.2d at if the Rule does whether the the certified trial record not contain sufficient the court for imposed does sanctions facts support ruling, court’s appropri- violation of the Rule were if and had a harmful ruling effect ate; and case, upon the only outcome of the application 3. Whether the trial court’s remedy grant is to new trial. There is in error Rule 4.2 was because the authority, my no nor distinguished has col- (FELA) preempts federal law league any, permitting referred to an evi- state ethical rule. verdict, dentiary hearing, after to adduce additional purpose evidence for sole begin, 3 To a recitation offer validating ruling previ- a trial court made greater facts in than that detail ously on the facts then known to the court. Majority.

¶ 20 The Keller conduct of is outside the FACTS

reach of on Pa.R.P.C. 4.2 the facts here ¶4

presented. Therefore, Initially, Joseph Smukler we refrain from considering deciding represented whether the and Fed- filed Com- Liability eral Employers’ Act might plaint August on her behalf of 1996. preempt application rule of SEPTA, represented Giangiorda- Ellen professional conduct under other circum- Kilcur, no and James filed an Answer to stances. Complaint claiming, among other things, injuries appellant’s were 21 Order REVERSED. Case RE- negligence. caused her own The mat- MANDED for a trial. new Jurisdiction RELINQUISHED. proceeded discovery ter during contacted,

time Mr. Smukler interviewed ¶ BECK, J., a Dissenting files prepared as witnesses number of Opinion. present SEPTA were who day McCarthy injured. Ms. BECK, J., dissenting: September Giangiordano Ms. sent ¶ 11 dissent. do I Not believe that advising a letter to Mr. him that Smukler correctly analyzed the trial court the law employees, his direct contact with respect to Pennsylvania’s Rule of Pro- in the to and consent absence of notice (“Rule fessional 4.2” Conduct 4.2 or “the SEPTA, Rule 4.2 of the violated Rule”), I also that the court believe acted Pennsylvania Professional Rules of Con- appropriately in precluding Attorney Kel- duct. provides: The Rule ler from on trying appel- the case behalf of party, representing lawyer In a the lant. Although I would reverse the order subject shall the not communicate about SEPTA, entering favor judgment in of representation party with a the would remand the matter the trial court lawyer represented by an- knows to be evidentiary hearing for an if determine matter, new trial other in unless the is warranted. the ¶8 18, following morning, May the law- On the lawyer has consent other 1999, the to com- yer just or is authorized law to do so. before trial was mence, attorney Kilcur informed SEPTA Pa.R.P.C. 4.2. the court that Mr. Keller had contact with ¶5 Giangiordano asked Mr. Smuk- Ms. employees in of SEPTA violation the to refrain from further contact with ler hearing of court’s order. Outside the the employees body and set out of SEPTA jury, testimony from the court heard SEP- support request. in case law of her One Manager TA Fernando Davis Maintenance later, responded Mr. to Ms. week Smukler private investigator, and Keller’s Thomas that he Giangiordano, asserting was enti- Generally, court Pontolillo. the learned employees to contact the he tled SEPTA repeated that counsel con- appellant’s had his had contacted and that actions were employees tact SEPTA with various over appropriate under FELA. trial, prior and months both weeks ¶ 1998, August 6 In of SEPTA filed in All person telephone. and via informa- limine, asking in that the court motion in employees tion from the was revealed find Mr. Smukler’s contact with three presence of counsel or communicated employees Rule Spe- violated 4.2. SEPTA Pontolillo. directly The cifically, opposed SEPTA counsel’s contact court also learned that Mr. Smukler had Kearse and Lang, with David Michael by the em- signed drafted the statements Johnson, Booker all of whom worked for ployees. appellant’s injury. at the SEPTA time of testimony of and Pontolil- The Davis argument support in the mo- SEPTA’s previous day, lo that on the established in tion was similar to that set out its letter 17th, Davis, May employees SEPTA requested that to Mr. Smukler. SEPTA at Mr. Kel- Kearse and Johnson arrived appellant precluded using from office, request, ler’s at his' at various times provid- that the had statements addition, In throughout morning. ed and' also asked that Mr. Smukler be master Grenfell came yard SEPTA Albert precluded further contact with morning and to Keller’s office on that unless he notified SEPTA Pontolillo, as he had interviewed been Mr. and received its consent. Smukler previous telephone. on occasions via response on filed a to the motion behalf of appellant, wherein he set forth in detail provided 10 The witnesses were lunch argument he had advanced his letter they while waited Keller’s office an- Giangiordano. to Ms. ticipation testifying During at trial. 7, 1999, time, Mr. May as the date Mr. Pontolillo asked Davis 7 On near, attorney, radio on quite a new about his contact with grew William Keller, He also asked appearance day on of the accident. entered his behalf Keller, his and observa- Mr. Mr. Kearse about actions appellant. prepared who At day ap- represented tions on the the accident. try appellant, the case for PM, Pontolillo on the motion in limine. proximately first 1:15 Mr. re- her Keller, telephone call May on ceived a from Mr. discussion the motion occurred him jury jury Al- who selection was day selection. informed testimony no be taken stenographer ongoing did not me- would though discussion, result, day. tran- As a Mr. Pontolillo told morialize the in-court clearly they the men were not needed script from that date establishes afternoon, day. following have to return the addi- time in the the court some regarding testimony tion all of this in favor of on the motion. ruled 17th, May events of Mr. Davis precluded also testi- SEPTA were from 18th, fied that on very morning, May testifying appellant’s on behalf at trial. he met Mr. Keller outside the courtroom Only they if were called SEPTA would and Mr. Keller asked him about his radio cross-examination, appellant, by way of be communication with day on the permitted question them. at Id. of the accident. preliminarily 14 I observe ¶ 11 The information set out above courts of this Commonwealth not have de- prompted SEPTA request counsel to cided the issues raised Nor here. has the disqualified Mr. Keller be trying from Supreme United States Court ruled on the further, case and employ- the SEPTA preemption Thus, federal issue. the case precluded ees be from testifying appel- law discuss is that of other states and lant’s In considering behalf. request, various federal binding, courts. It is not judge the trial previ- recalled that on the persuasive, but rather authority. morning, May 17th, ous she discussed but did formally rule RULE on the motion in L2 limine; nonetheless, at that time in- she ¶ 15 “Courts and commentators have formed Mr. Keller that “leaning she was designed prevent noted that Rule 4.2 is the direction” of granting the Tri- motion. represented situations which a party 5/18/99, al Transcript, Thus, at 29. may advantage be taken adverse 9:30[AM], “approximately ... [Mr. Keller] counsel; presence party’s attor-

was on notice that trial judge] [the ... was ney theoretically neutralizes the contact.” very close granting [to the motion].” Id. Patents, University Kligman, Inc. v. at 30. The judge further recalled that (E.D.Pa.1990). F.Supp. 325 The Comment later that day same on the afternoon of provides to Rule 4.2 guidance initial re- 17th, May PM, at about formally 2:30 she garding the reach of the Rule and sets out ruled on the motion and found in SEPTA’s three instances wherein an opposing par- favor. Id. ty’s employee “party,” is deemed a thus 18th, May 12 On Mr. argued Keller triggering provision the consent that his interpretation of relevant case law 1) Rule. Those instances include: an em- permitted his contact with the SEPTA em- ployee 2) managerial responsibility, ployees, who were managers neither nor employee an may whose act or omission alleged those to be the cause of the acci- 3) imputed organization, to the an dent. The trial court informed Mr. Keller whose statement constitute interpretation that his of the law was part organiza- admission on the flawed: tion. just plain [T]hat’s inaccurate. It’s not the law. The law is clear. I put And ¶ Many federal courts adhere to this on the yesterday. record And it wasn’t definition, including the Eastern District of surprise. You pulled knew where I it Pennsylvania, adopted Pennsyl which from. vania Rules of Professional Conduct. See Id. at 32. Maritrans, Belote v. *2 1998WL 136523at (E.D.Pa.1998) (setting types 13 The court out following then issued the the three order: Mr. Keller disqualified applies). whom Rule 4.2 case; participating in the Mr. co- See also Tucker v. Keller’s & Western Norfolk counsel, (E.D.Va. Co., Goggin, try Railway F.Supp. Mr. was directed to 1994) (same). stead; case Mr. Keller’s ¶ procedures ordinarily which occur 17 The trial court found that the wit- employees nesses at here were under manner issue such circumstances and the may day. whose statements constitute admis- they which occurred that result, part the As Kearse, sions on of SEPTA. a attached statement of which was court, the with reasoned contact these men limine, to includes SEPTA’s motion 4.2. prohibited by Appellant Rule proper and equipment comments on the claims that of the chal- “each witnesses necessary that number of workers were fit lenged SEPTA did not into of task, personnel present per- for the the categories.” Appellant’s the forbidden tracks, task, form the of the the condition Brief at 20. may pre- methods that have alternative policies

¶ vented accident and the SEPTA’s Appellant distinguishes Booker job practices and in connection the Johnson, characterizes whom she as a for- hand. statements doubt SEPTA, These without employee mer of from the re- scope concern matters “within of his the maining employees, all of whom she con- Thus, I Thus, employment.” find that employees. cedes are SEPTA I 4.2, begin my certainly lat- Kearse falls within Rule that analysis considering the is, group, I “cur- employee ter which will refer as he fit is an who within employees.” ie., rent category,” person whose “admissions may admissions on statements constitute Employees Current part of SEPTA. ¶ Appellant insists that the trial court reject appellant’s I would claim type have in some fact engaged should of a fact- required engage the court was finding in order to determine whether exactly testimony finding statements the current mission determine and/or employees as any employ- would be offered admissions. whether and to what extent record, In the of such evidence testimony absence ee’s would be statements and/or argues appellant, way is no there to deter- enough offered admissions. It under as is mine whether the current fit be used Rule that the statements could I disagree. within reach of the Rule. An makes purpose. who under improper contact Rule 4.2 should law, Pennsylvania 20 Under an admis- permitted sidestep not be violation as, among other “a things, sion defined by arguing that he or she does Rule party’s agent or statement servant not to offer a statement as intend witness’s concerning scope a matter within the Rule, purpose an of the admission. The agency employment, during made pre- explicitly the Comment is to explains, relationship.” the existence Pa.R.E. contacting vent counsel from 803(25)(D). 4.2 The Comment Rule may admis- whose statements constitute plainly states that an cannot be by appel- sions. The statements drafted by opposing if directly contacted counsel clearly lant’s establish employee’s “may statement constitute contact employees fit that definition and so part admission of the organiza- on the Rule. governed by with them is Comment, 4.2 (emphasis tion.” Pa.R.P.C. improper would not condone contact supplied). counsel to fit such con- permit thereafter It is clear from the record that Rule. parameters tact within the appellant sought out the so that witnesses ¶ 23 that in of Davis provide appears their It the cases they could observa- Grenfell, occurred, be even tions of the accident as it but evidence they in more within the compelling also their assessment the manner come

999 (E.D.Pa.1990), testifying, reach of the Rule. While Davis the Eastern District Court Pennsylvania identified himself as a SEPTA “mainte- found that an manager, Manage- working nance track foreman.” on the who was employees specifically rial are injury, “allegedly precip- included date of his addition, In injury, person the Rule. Davis inter- itated” a was was whose personnel present may viewed about the at the statement constitute an admission. accident, Belote, appellant’s particular time of In supra, the same court found gang,” the whereabouts of “the a fit barge captain Morton a within the admis- group appellant alleged to category have assist- sions of the Rule because his ed her the date of the accident. There- statement addressed “the conditions of the fore, him only may injured bring plaintiff Davis’s title deck when the himself.”2 4.2, Belote, supra, within the reach of Rule but the na- at *4. appellant’s

ture of his interviews with ¶26 Appellant argues that this case is counsel establishes that his statements different from Garrett and Belote because may have constituted admissions SEP- alleged any employ- she has not TA as he was asked about within matters inju- ees contacted caused her scope employment. of his I ries. observe first that at least with respect Grenfell, Grenfell, respect With to Mr. appear this does not to appears testimony from the Among things, appel- his status be the case. other may too manager. have been that of argued given Pon- lant that she was not ade- tolillo identified him “yard quate fouling complete as a SEPTA time to her task. master,” from whom Pontolillo learned testified that supervi- She Grenfell was the about procedures SEPTA’s various requests for ob- sor to whom such were made. taining repair sufficient time to At explicitly tracks. And she stated that whether she trial, appellant characterized Grenfell fouling received time and much she how her superior, indicating that he was the received was Grenfell’s decision. person from request whom she would event, In do not believe that “fouling Further, time.”1 even if Grenfell limiting category the Rule’s admissions manager, not a appel- the nature of allegedly who cause an lant’s claim likely makes it that his acts or injury logical or required by either may imputed omissions have been to SEP- by employees Rule. Admissions who ob- Finally, TA. clearly Grenfell’s statements injury serve while the course of their concerned matters scope within the of his employment are no different from admis- him employment, bringing thus within the injury sions who cause an category admissions of Rule 4.2. employment, while in the course of their

¶25 Federal interpreting respect agents case law least with to their status as Tucker, similar very or supports my supra, same rules or servants. a welder conclusion here. In Garrett v. FELA brought against National action his rail- R.R. Passenger Corp., employer. attorney, WL road His who had Appellant explained testimony given fouling in her that had she been time on the fouling accident, time is brief amount of time be- day she not have been clear, during tween trains which a track is injured. allowing gang opportunity thus a limited According appellant, work in the area. captain 2. The Belote court found that the fit request fouling time must be made to the categories set out in within each of the three master, yard authority grant who has the Rule. deny request. appellant's position It was knowl- from them their employees prior day and elicited railroad

contacted other the avail- action, regarding attempted edge to contact observations filing customary complaint ability equipment and other employees after the additional Clearly the informa- railroad, on-the-job practices. Norfolk and was filed. (“N W”), employees sought from the SEPTA Railway Company & tion Western scope acquired in the the was that which was prevent in limine to filed a motion find the employment. al- would employees of their contact. None of compelling injuries. scope of Tucker reasoning and leged to have caused the welder’s adopt Regardless it whether and here. The court reasoned: in this case caused employees current negli- Among Tucker’s theories of condi- simply observed the the accident or machinery giv- gence is that the he it, had up their statements leading tions to on the weld- by supervisor his to use en admissions, mak- becoming potential one of the ing job was not safe because Tucker, subject Rule 4.2. See ing them with a cradle pieces equipped was not Wyeth v. Labo- supra. Cagguila also See which, employee’s option, at the could be (de- (E.D.Pa.1998) ratories, 127 F.R.D. 653 with a hoist to me- used connection non-manager spite employee’s status machine off of chanically lift or lower the may not category and fact that admissions to the truck. In order estab- and on apply, applicable Rule 4.2 because desires theory, Tucker’s counsel lish this statement to es- sought employee’s to use oth- parte ex interviews with to conduct treatment). disparate tablish employees who welding ... crew er knowledge respecting the have would ¶ a mi- adopt us to Appellant urges 29 on status of the cradle existence or 4.2, is limited nority of Rule one that view machinery Tucker’s and extent with non-mana- permit contact available for use which cradles are upon primary case gerial employees. The jobs are similar employees whose I, Niesig v. Team appellant relies is which readily apparent that Tucker’s. It 493, 558 559 N.Y.S.2d 76 N.Y.2d acquired could have these (1990). case the New In that N.E.2d 1030 knowledge scope in the of their such those Appeals held York Court that, therefore, their employment and bind acts or omissions employees whose might, upon establishment statements imputed thereto corporation or are by plaintiff, be a sufficient foundation However, reach. come within the Rule’s ... as admissions. admissible rely on or refer Niesig court did not interpret- to the rule was any Comment Accordingly, parte communications ex 104(A)(1). Thus, ing, Disciplinary Rule 7— these N & W’s about dis- category was never the admissions ... subjects by [the Rule] are barred that have Those few courts cussed. consent of defendant’s prior absent of an Niesig despite presence adopted counsel.... ac- in the Comment category admissions Tucker, F.Supp. at 1099-1100. supra, 849 rule, did so companying applicable text. explicitly ignoring Comment’s case is much like Tuck- Appellant’s See, Kaufman, 185 W.Va. e.g., Dent v. inadequate equip- alleged er. too She (1991) (adopting Niesig ment, manpower, were the cause 406 S.E.2d as well as “ambiguous” and “non- finding injuries. with those Comment connection of her Management v. claims, binding”); Bouge Smith’s interviewed several her counsel 1990) (D.Utah (ig- Corp., F.R.D. 560 duty employees who were noring Employees Comment because a “federal court Former interpretations is not bound state court ¶ Appellant claims that Booker John- codes of professional responsibili- son, sought one of the co-workers she ty”). majority Like the of courts that have trial, offer as a witness at was a former issue, complex wrestled with this I find subject was not employee of SEPTA who 4.2, guidance the Comment to Rule 4.2, regardless appli- to Rule of the Rule’s ambiguity. rather than employees. cation to SEPTA in- current sists that falls within the Rule’s Johnson Majority 30 The insists that there was scope. insufficient evidence of record to conclude record in- 33 The establishes that counsel violated Rule I disagree 4.2. sought formation and received from John- and draw attention to the evidence set out type son was the same of information elic- Further, Majority above. I the believe Thus, if ited Kearse. Johnson was give failed to the issue the attention it employee, him current contact with Majority virtually ignores deserves. The prohibited by very Rule 4.2 for the same the fact that the Comment to Rule 4.2 then, My inquiry reasons outlined above. provides three circumstances under which focuses on whether Johnson falls within Rather, employee party. an is deemed the reach of the Rule. Majority summarily decides merely prevents Rule employ- contact with ¶ clearly applies 34 4.2 While Rule ees whose impute statements “could liabili- employees current organization, its ty onto employer.” Majority Opinion their application employees to former not is so at 993. This conclusion fails to address plain clear. language The the Rule does plain language Comment, of the which Further, employees. not include former only includes the Rule’s reach not those any plaintiffs may statement a counsel employees whose acts or omissions be acquire from a former would not imputed to organization, but also all precise fit the definition of an admission managerial employees as well as those since it during could not have been “made “may whose statements constitute” admis- [employment] the existence relation- sions. See Comment to Pa.R.P.C. 4.2. 803(25)(D). ship.” Pa.R.E. Despite categories, three distinct the Ma- ¶ Although binding there no is case

jority considers one. It does not even guide analysis, law on the issue to our admission, discuss the definition anof see courts various federal have addressed the 803(25)(D), Pa.R.E. consider of the issue, including the Eastern District of jurisdictions, cases from other set out Pennsylvania. overwhelming majority above, very that have addressed the same of courts have determined that contact cases, many issue. of those other employees, by if at all former covered courts have contrary reached conclusions 4.2, prohibited only Rule in the event Garrett, Majority’s. supra; to the See Be privi- that the contact risks disclosure of lote, Tucker, supra; supra. attorney/client leged communications. 31 After consideration of relevant case Companies, 36 In Dillon Inc. v. Sico law, Comment, (E.D.Pa.1993), Company, well as the Rule and its 1993 WL 492746 plaintiffs would find that the trial court did not err former em- contacted in finding appellant’s ployees infor- counsel violated of the defendant and elicited by repeatedly contacting Rule 4.2 SEP- mation from them. The defendant moved employees. preclude TA’S use of the information and the positions such for- “fruits thereof.” The Dillon court ob- factors as the cases, employees mer in relation to issues served that most courts find that suit; they privy former in the were “contacts with are whether former generally prohibited by Rule 4.2.” Id. at communications between the em- ployer concerning *3. v. Relying Haynsworth, on Stabilus and its counsel subject litigation, or 1992 U.S. Dist. LEXIS matter of the other- WL (E.D.Pa. 31, 1992), wise; by inquiry op- March the Dillon the nature counsel; posing how much time has court noted that the Eastern District adopted elapsed employ- “apparently posi- [has] Court between the end relationship questioning ment and the tion that contacts with former [only ... Rule such factors prohibited opposing 4.2 ... counsel. When [are] there perceived point á real or is a where] there is risk of the conclusion privi- pro- disclosure of confidential information substantial risk of disclosure matters, attorney/client leged appropriate ... no- privilege.” tected then *3, Dillon, the former supra, given tice should em- ployees concerning prohibition appears This standard apply attorney-client against disclosing confi- See, jurisdictions. e.g., many H.B.A. Man- and, employer dences of per- the former Schwartz, agement, Inc. v. Estate 693 haps, employer’s counsel the former (Fla.1997) So.2d 541 ethics (“among bar any parte ex prior should be notified to nationwide, committees the ‘clear consen- interview. sus managers is that former and other Id. employees scope former are within the ”); against parte ¶

of the rule ex contacts’ of record that There is no evidence Maryland, F.Supp. Camden v. privy Johnson to confidential attor- (D.Md.1996) (counsel may not contact for- ney/client pre- that would communications employee opposing party mer where contacting him clude from as a employee exposed has former been to con- then, former Dillon employee. Under information); Wright fidential client v. subject to the Johnson would not be Rule. Group Hospital, Health 103 Wash.2d However, Dillon adoption of the stan- (1984). 691 P.2d 564 If inquiry. dard does not end the Johnson employed by was not SEPTA at the time Dillon, 38 Like the court I would by he was contacted and interviewed coun- per proscription “a se conclude sel, he in the reach then is not included against contact with parte ex former em- preclud- 4.2 been Rule and should not have opposing party ... is not ployees of Unfortunately, from testifying- ed language warranted either the of Rule regarding record is unclear Johnson’s em- any 4.2 interpreting court decision ployment history with SEPTA. Dillon, Thus, supra, it.” at *5. I would reasoning adopt holding Appellant simply that argues John- Dillon court: and so was not employee son was former subject to insists that applied 4.2 is to be former the Rule. SEPTA Rule to

[I]f all, by counsel on sev- approach a rational Johnson was contacted a SEPTA employed whereby propri- eral occasions while he was em- should be ployee gave contact and in fact his statement ety parte of the ex is determined employment. appellant’s during his by assessing the actual likelihood of dis- SEPTA, According Johnson became a privileged closure of materials.... That time of depend employee only former “at the upon weighing assessment trial,” just the sanctions im- parte question last ex contact before whether although there is no record evidence to posed constituted an abuse of discretion At establish this fact. the time the court that a new trial is warranted. such order, entered its sanction the issue of 18, 1999, May upon learning of 43 On subject Johnson’s status was the of discus- parte of counsel’s ex the nature and extent only trial judge sion. The asked whether trial employees, contact SEPTA employee Johnson was an “at the time of sanctions, all imposed three distinct appellant respond- incident.” Counsel was, appellant argues inappropri- of which were ed he but maintained that he permitted testify First, in any disqualified should be event. the court Mr. Kel- ate. Ultimately, precluded the court Johnson participating in the trial. This ler from testifying, and deemed him an un- sanction, argues her appellant, violated available witness. Counsel introduced right represented to be portions deposition testimony, of Johnson’s Second, the court ordered co- her choice. transcripts but the do not reveal with counsel, Goggin, proceed Mr. with the certainty the employ- dates Johnson’s sanction, according appel- trial. This ment.3 lant, unfair, was not but was inconsis- ¶ 41 It appel- is inconceivable to me that tent with established law. The argue lant’s counsel would Johnson awas court’s third sanction was disallow the contacted, former if he in- testimony and the live statements provided terviewed and with a statement had contact- who been However, during employment. his I can- Appellant ed in of Rule 4.2. has violation appellant’s position not reconcile in her labeled this sanction “severe” and “draco- counsel, brief with that of SEPTA’s who nian.” insists that employed by Johnson was just until prior to trial. Because 44 Because this case is one of first

the record does not conflicting resolve the impression, binding precedent is no there briefs, assertions in counsels’ I cannot de- However, guided by on this issue. I am termine whether Johnson was a SEPTA from on case law this Commonwealth employee at the time he was contacted authority generally impose court appellant and so cannot decide whether guided by I am sanctions. also federal result, applied Rule 4.2 to him. I As authority of court to case law on the would remand the matter to the trial court impose sanctions for Rule 4.2 violations. evidentiary hearing for an to determine ¶45 and, Johnson’s status consequently, discovery to rule In viola the context upon whether he included in Rule 4.2’s is, tions, party that where a “fails to make Obviously, reach. if the finds that court discovery obey or to an order of court Johnson was a former at the discovery,” authority of respecting contact, appellant time of would be entitled impose against court to sanctions trial to a new trial at which Johnson would be is offending party quite broad and sub permitted testify. ject, appeal, to an abuse of discretion SANCTIONS Co., Croydon Inc. v. standard. Plastics

¶42 Heating, A.2d Cooling Lower Bucks & 698 propriety of The next issue is the denied, imposed by 625, (Pa.Super.1997), appeal the sanctions the trial court. years.” been nine deposition 3. The dated December of "November the 28th it had John- point, excerpt is insufficient to establish 1997. At one Johnson was asked how This history. long replied son’s work he worked at SEPTA he (1998). that the at issue was recognized sanction 553 Pa. 717 A.2d 1028 especially ... where ... it “a drastic Croydon panel [one] of this court considered party prevail- properly effectively prevents] sanctioned the trial court whether Still, introducing it from claim.” Id. at 882. appellant by precluding ing on her Croydon expert testimony. failing to com- certain conduct of the many sanc- recognized severity ply discovery period of the over a court im- years penalty tion it: the severe before warranted Id. posed by the court. that, note, although preliminarily, We Croy- question precluded the sanction in appel- Contrary to the assertions testimony, introducing expert don from majority, I believe lant and those Croydon’s altogether did not dismiss but impose power that a trial court has the case, appeal present we will review the for the violation of ethical severe sanctions Croydon’s if the trial court dismissed rules, even if those appropriate, where recently complaint. This Court held dismissing equivalent of sanctions are the heightened appropri- review is that such rules of ciril recognize I that our the case. in that it leads to sum- ate to dismissal provide pre- for the procedure specifically mary judgment being granted against expert, documents or testimo- clusion of an party. the dismiss- the sanctioned Since 4019(c)(2). 4003.5; I ny. See Pa.R.Civ.P. al an action is the most severe sanc- governing that the ethical rules believe may impose, tion which a attorneys in this Common- conduct of carefully equities court must balance the in im- very equal are at the least wealth particular case and “dismiss than, to, if those rules portance greater discovery where the violation of the There- discovery procedures. governing opposing party rules is willful and the fore, hold that a trial court prejudiced.” has been appropriate, impose any sanction deems essentially prompts including an order Rossi, (quoting Id. at 628-29 Stewart v. case, of a in the event of the dismissal (1996)). A.2d 214 Pa.Super. by counsel. ethical violation Aiken, 5 v. 756 A.2d See also Wolloch (dismissal failure (Pa.Super.2000) based on ¶ course, unfet- power 49 Of such is not willfulness identify expert requires both sanction, the tered. As with other prejudice). and viola- imposition of sanctions for ethical subject to an abuse of discretion tions ¶ the Croydon 46 The court held that type of sanc- appeal, standard on expert’s withholding of an re- appellant’s of re- imposed triggers the manner tion defense, by followed its will- port from the Croydon, supra. view. commanding ful violation of a court order report, warranted the it to turn over the ¶ dis- Appellant argues that Keller’s 50 precluding sanction of trial court’s severe her “constitutional qualification violated using expert. Id. appellant attorney of right [her] to contract with Reply Brief at choosing.” Appellant’s ¶ own in v. Hos- Similarly, 47 Dion Graduate Ne- she relies on proposition, 4. For this University Pennsylvania, pital of 19, (1987), Pa. 46 A.2d 469 416, George, stor v. 354 Pa.Super. 520 A.2d 876 360 (1946). only mate- case is not The Nestor much upheld preclusion this court order hand, it the case at rially court different from Croydon. The Dion like the one

1005 (3d Miller, 1198, 1202 proposition v. 624 F.2d also does not stand for the States Cir.1980) right asserts.4 (“Although [to this respect, it is not deserves choice] of one’s Nestor, stopped 51 In the trial court Haines, absolute”); 531 v. W.T. Grant appellant’s attorney in mid-sentence dur- (2d Cir.1976) (the 671, remedy of F.2d 676 supreme ing opening his remarks. Our in the discretion of disqualification rests court, specifically holding that the without court); Eppler Lennen v. John grant reversal or the of a the district error warranted trial, Inc., new stated: 1997 566078 Machine Works WL (E.D.Pa.1997) right every (relying on Brennan v. In-

[I]t is the constitutional Cross, by accused “to be heard himself and his dependence F.Supp. Blue 949 305- counsel,” cases, a (E.D.Pa.1996) so likewise in civil proposition litigant’s right fully represented to be entitled to party’s choice of counsel is integral part counsel is an of that “due deference). substantial process every of law” which resident of ¶ Having disqualifi- determined this legal rights and nation state whose sanction, ques- cation was an available adjudicated freely being are can invoke. it nonetheless an tion is whether (citations omitted). Id. of discretion under these facts. abuse Nestor, passage appel- 52 From this not. would conclude that was right lant claims an absolute to trial with Clearly agree Majority the counsel of her choice. 55 I that Reil- plain language of Nestor affords no such 204, ly by Reilly 507 Pa. v. SEPTA right, language nor does the of our Consti- (1985), authority limits the A.2d 1291 tution, interpreting the case law it or the counsel for vio- the trial court sanction setting statutes out the standards lations of the Rules Professional Con- proceed. which actions law are to See case, Reilly, judicial duct. recusal 1, Constitution; § id. See also Art 9 Pa. held that this court supreme our 2501(a). Indeed, Pa.C.S.A. when remanding the matter for a hear- erred very interpretation same of Nestor was judge the trial ing to determine whether case, urged upon this court in another we his should have recused himself because explicitly “right rep stated that the to be nephew were affiliated with son-in-law resented the counsel of one’s choice is pre- plaintiffs law firm. While the Snyder in all not absolute cases.” v. Port in the case concerns dominant discussion Authority Allegheny County, 259 Pa.Su Conduct, and the Code of Judicial recusal (1978) per. (uphold 398 A.2d Reilly court noted that conduct code ing grant lengthy refusal to trial court’s subject for proper “are not a violations could continuance so new courts to im- of the lower consideration trial). prepare for attorney judicial or punishment for pose upon very 53 Some of the cases which misconduct.” appellant right for relief consider the relies Majority does not believe 1156The merely as

to counsel of one’s choice appel- precluding order the trial court’s disqualifica- factor to be considered when was the witness statements is, lant’s use of it “right,” such as tion is issue. See, on notice equivalent placing e.g., no means absolute. United addition, relevant here and "holding” it addressed the issue purported when 4. properly not it as a "matter appellant appears in to be characterized which refers Nestor Nestor, at-, already granted assigned error.” 354 Pa. for dicta. The Nestor court had grounds 46 A.2d at 472. appellant a new trial on other above, out contacting oth- Rule and its Comment set precluded that was he er after the order was state of the law SEPTA but also the unsettled Majority Opinion at 990 entered. See period of contact as well as the during (“[NJowhere in did the counsel, the above ‘order’ on the warning trial court’s prohibit having trial Keller from fu- 17th, May leaning that it was morning of past parte ture ex communication granting SEPTA’s motion.5 Even toward present employees.”). vigorous- I SEPTA however, I convinced that doing so remain Majority’s reasoning ly disagree with the disqualification order was the trial court’s By grant here. its of the motion improper. This is the rec- not so because state- exclusion of the use of the witness morning plainly that on the ord establishes ments, put attorney court indeed 18th, May precluded the court after that his conduct violated Keller on notice just before trial witness statements clearly indicated that Rule 4.2. The court engaged Keller begin, was set to admission category relying was in employee Fernando Davis find that the em- the Rule’s Comment to that occurred regarding discussion events I ployees at issue fell within the Rule. Specifi- day appellant’s on the accident. issuing such a cannot conclude that after met Mr. cally, Mr. Davis testified he ruling, required the court was to inform courtroom moments be- Keller outside the precluded from counsel that he was also ques- appeared in court and Keller fore he continuing Attorneys to violate the Rule. tioned him about the radio communications in must be held re- this Commonwealth day she he had with on the was actions; they do not sponsible for their injured. place upon from our refusal benefit the facts in this case as personal minimal view them even the most merely than enforcement responsibility professional implicating for their con- more code; the court’s thus I do not Regardless disciplinary duct. of whether does, 4.2 analysis respect believe, of the law with to Rule Majority apparently as the correct, obligation counsel’s to follow disqualification Reilly precludes of the court was absolute. Coun- Further, order upon order here. the other case (or refusal) here is sel’s failure to do so relies, Majority Greg Pedrick v. which the extremely troubling. (1984), ory, Pa. 482 A.2d 215 permitted disqualification, stat explicitly

¶ Appellant argues that until the trial “appropriate that it under certain ing ruling on the afternoon of court issued its enforce circumstances for trial courts to 17th, no established law May there was Responsibility of Professional the Code barring counsel’s contact with the SEPTA re counsel or otherwise disqualifying thus, un- employees, disqualification was straining participation or conduct his Appellant’s position asks us reasonable. protect litigation them order plain language before ignore cautionary representation ter should not be the ob- statement I echo the wise and communications, ago by ject parte should a decade the Honorable of ex set forth over Judge Antwerpen, District put plaintiff’s Franklin Van U.S. have counsel on notice as to a Pennsylvania: regarding problem the Eastern District of his potentially serious bar, In such uncer- proposed course of action. Unfortunately, the case at no Penn- for conduct, we believe tain of ethical areas sylvania case law has been found to inter- given prudent would have that broadly prohibition pret Rule 4.2's how believe, however, opposing counsel of the intent to notice to be read. We do i.e., organization take such a statement. import, the rule's Cagguila, supra, at 654. involves the mat- members whose conduct merely is decid- reviewing trial....” There the court rights litigants the to a fair case, trial abused its dis- ing whether the court at 221. The circumstances of this Id. sanctions; it is imposing in certain appro- cretion my opinion, disqualification make type severity of sanc- dictating not the priate. imposed in all cases. tions to be ¶ only implicates 59 This case not the ¶ for by potential I am troubled the rules, disciplinary it also concerns the au- Rules of Professional exploitation of the thority of a trial court to control the law- example, For in this context. Conduct yers it in a case. appear given who before opponent’s an em- where counsel contacts clearly Keller’s conduct was sufficient to 4.2, pro- and ployees in violation of Rule disqualification. Upon learn- warrant his them, prepare to interview them ceeds act, ing of Keller’s the trial court was signatures trial draft for their state- concluding reasonable its orders events, remedy real is there ments of what keep would not Mr. Keller from unautho- preclusion mere of those statements the I employees. rized contact with SEPTA underlying purpose at trial? Is the disqualification find that the would court’s counsel, Rule, prevent overreaching by to order did not constitute an abuse of discre- Surely, served such a limited sanction? tion, pursuant but instead was an act to permitted employ- if is to call the authority court’s to control its court- witnesses, not the benefit of ees as room, parties lawyers, and the as well un- improper contact still inure an act protect rights made “to party? ethical Even without use of the Pedrick, litigants supra, to a fair trial.” statements, fully pre- counsel would have a pared exactly knows what he witness who disqualification I While believe say to cause. or she should assist counsel’s proper, say of counsel I was cannot The notion that the witness is “tainted” regard remaining same with to the sanc- contact, prior particularly where the tions. The court’s direction that Mr. appears contact is as extensive as it to be Goggin preclusion handle trial and the case, compelling. in this the SEPTA as fact witnesses concerns, Despite my grave I can- Appellant’s were indeed severe sanctions. that the in this case not conclude witnesses reference to several federal district court preclu- were tainted to such an extent that judge cases wherein the trial refused ap- testimony altogether sion of their impose persuasive. such is not sanctions propriate. The record is insufficient Lennen, supra; Cagguila, supra. See As preclusion order was establish court, reviewing we are not asked to respect one or all of warranted with impose, decide what sanctions we would applied. to whom it the SEPTA witnesses imposed rather sanctions but whether the possibility I not rule out the While would trial court an abuse of constituted preclusion proper, order was nei- that the Simply another trial discretion. because record. ther would affirm on this against imposing court decided these sanc- party that each not mean the trial court here 63 I would conclude tions does Likewise, opportunity to es- in error. the case of an should be afforded position respect to the appellate upholding a trial court’s tablish its preclusion Appellant order. should be impose decision not to such sanctions is why its use of the wit- permitted argue analogous to this case. See W.T. Co., advantage unfair supra (upholding not nesses is not an Grant decision support its permitted to complaint). SEPTA should be disqualify counsel or dismiss only equitable advantage claim that unfair the solution is removal of the testifying. the For may bar witnesses from gained through and her client have a reason, remand, upon that I would direct Certainly, violation of ethical rules. where parties the trial court to allow the that conduct in engaged with knowl- evidentiary make such claims at the hear- it edge contrary that to established court, course, ing. The trial con- ie., would court, willfully, law or an order of the trol the manner in which such evidence outrageous the act is and far worse than would In light be taken. of all evidence that committed attorney the who did so adduced, the court would upon then rule However, such knowledge. without the propriety preclusion the order and attorney benefit to either the violating original either reissue its order or it alter rules, one, negligent the willful one and the as it sees fit. is the same: each interviewed and has in prepared for trial a witness or witnesses

¶ 64 I recognize that the trial court must violation of Rule 4.2. In the event such guided by upon be I standard remand. contact works substantial and material recognize also that the exclusion of fact prejudice opposing party, on I believe the in may witnesses this case be akin to dis- appropri- exclusion of is an the witnesses missal in excluding the same manner that sum, ate sanction. the standard that proffered expert’s testimony the was in should the trial court is that applied be context, Croydon and In that Wolloch. prejudice; of substantial and material will- i.e., violation, discovery rule the standard required. fulness is not “heightened” scrutiny one of that re- quires court equities to “balance the nature, By their the issue of wheth- carefully and dismiss where the viola- Goggin er Mr. should have been made discovery tion rules is and the willful proceed at trial and the issue of whether opposing party prejudiced.” has been May gone trial should have forward on Wolloch, supra, at 12. 18th, inextricably tied to the witness are I65 would hold that an order for Thus, preclusion I hold that order. would exclusion of fact witnesses based on a vio- presented these be issues too should lation of Rule 4.2 cannot be entered unless I evidentiary hearing. resolved at party moving for sanctions establishes appellant’s case law argument note prejudice. substantial and material requires disquali- firm be the entire remand I suggest instructions above would lapse fied the event of an of one ethical evidentiary direct an hold attorneys. Appellant its relies on Ameri- hearing prejudice so that the issue of can Philadelphia, can Dredging City Co. v. explored parties upon and ruled (1978), sup- 480 Pa. for 389 A.2d 568 Thus, remand, by the court. the wit- However, port. primary rationale exclusion not ness order would be reissued firm is that disqualification of an entire if the trial court finds that cannot firm have another within the preju- establish substantial and material infor- privy improperly been obtained dice. or, least, of such appearance mation

¶ However, opportunity Here the court ex- hold exists. improper information party found violation of Rule 4.2 must cluded from trial the Rule; willfully have in violation of the acted order for witness was obtained my precluded exclusion order to be sustained. As the SEPTA clear, Therefore, opinion pur- testifying. the reason for com- dissenting makes firm pose underlying plete disqualification an exclusion order is the was ne- carrier result, any common American As a the rule of gated. informa- furnishing voluntarily necessarily apply to Dredging would in interest as to the person this case. tion to a injury or death facts incident to Still, requirement void, any employee, shall be and who- in go to trial have been error forward order, threat, intimidation, ever, by any the SEPTA event. With rule, contract, regulation, or device excluded, possible are at two there least whatsoever, prevent attempt shall to Goggin, scenarios that could follow. Mr. furnishing voluntari- any person from attorney representing appel- any or other in person information to a ly such lant, re- might require additional time to interest, discharges or or whoever strategy. the case and alter trial evaluate attempts to disciplines or otherwise hand, other with the SEPTA em- On the furnishing discipline any employee for excluded, might ployees appellant’s case voluntarily per- such information to a necessarily have been limited to what was interest, shall, upon conviction son jury had presented by Goggin. Mr. thereof, be sworn, ready pro- the court was to been parties ready they ceed and the were as punished by a fine of not more than party would ever be. Since neither had $1,000 not more imprisoned or for any oth- opportunity to make these or year, or both such fine than one arguments regard going to forward er with imprisonment, for each offense: and trial, I would find that a remand is Provided, nothing That herein con- appropriate. any construed to void tained shall be impossible 69 Because is resolve contract, rule, regulation or with re- Goggin’s representation the issues of Mr. contained spect information May of trial on 18th and commencement carrier, privi- files of the or other without resolution of the witness exclusion reports. leged or confidential issue, I would direct that these issues be chapter is any provision If of this part inquiry made of the on remand. The appli- or the declared unconstitutional parties would be entitled to offer evidence any person or cir- cability thereof to in support respective positions of their invalid, validity cumstances is held court, light presented, is what chapter of the remainder would resolve the issues. provision of such applicability PREEMPTION and circumstances shall persons other ¶70 Appellant “application insists that thereby. not be affected ... of this case was of Rule 4.2 to the facts § U.S.C. contrary Supremacy to the Clause ¶71 § pre- because Con- Appellant argues [Constitution] United States precluded all interference with gress has of a state ethical application cludes the Ap- in FELA cases.” directly witnesses prohibits counsel from rule that provision at 8. The FELA pellant’s Brief that we employees. She asks contacting provides: upon appellant relies by minority which espoused adopt the view courts, wit, voluntary “any in- State statute Penalty suppression state rule, attor- prohibits plaintiffs’ incident to accidents. ... formation conducting parte ex interviews neys from contract, rule, de- Any regulation, or intent, employees regarding whatsoever, the defendant’s purpose, vice FELA claimants facts incident prevent shall be to or effect of which Harper Queensberry v. & Western Rail preempted by Federal law.” v. Norfolk (E.D.Va. 21, Company, Missouri Railroad 264 24 way Company, 157 F.R.D. Pacific 760, 238, Ill.App.3d 1993) 201 Ill.Dec. 636 N.E.2d in (adopting reasoning set out denied, (1994), appeal 157 Ill.2d 1202 Corp., R.R. Passenger Garrett v. National 162, 642 N.E.2d 1279 205 Ill.Dec. (E.D.Pa.1990)). 1990 122911 See also WL (1994). Rail See also Southern Partners, Norfolk Operating v. Maritrans Belote way Company Ga.App. Thompson, v. 208 (E.D.Pa.1998); L.P., Ber 1998 WL 136523 (1993). 240, 430 S.E.2d 371 Corporation, ryman v. Consolidated Rail (E.D.Pa.1995); ex 1995 517642 State WL many concedes that fed- Appellant Atchison, Fe Railroad Topeka rel. & Sanie pa- courts that have considered the eral (Mo.App. O’Malley, v. 888 S.W.2d statute, including rameters of the federal 1994). Pennsylvania, the Eastern District of have preempt

ruled that FELA does not persuaded by I am the rationale of ethical rule. Those courts reason that that have considered the federal courts nothing prevents FELA states from issue, reasoning set particularly this giving effect to their ethical rules: 60, by its out in the case. Section Garrett While prevents [§ this section 60] terms, the ethical very pre-empt does not hindering preventing railroad from or rule; employer an from simply precludes it any employee furnishing “from volun- It not af- employees. does “bullying” its tarily person information to a in inter- plaintiff’s fect the ethical conduct accident, regarding est” the facts of an it case; building his or her who is plaintiffs does not authorize counsel to rather, pre- employer an from prohibits employee parte communicate with an ex voluntary statement venting employee’s an litigation in violation of Rule 4.2 once attor- an lawyer. to a co-worker’s Where begun. only prohibits has Section 60 employ- ney properly to interview seeks from, policy railroad through from the request ee via a for consent otherwise, practice of intimidation or counsel, § the em- employer’s prohibits barring employees furnishing from in- consent. The ployer withholding from acci- regarding formation the facts of an punishment provides statute for severe voluntarily. dent cooperative re to insure a reasonable and Queensber employer. See

sponse by (§ To state that a railroad must consent to remedy ry, supra, 24 n. 4 60 seeks to say not to such interviews is such whereby promulgat railroads practice parte be conducted ex interviews prohibited employees ed rules that Instead, violation of state ethics rules. anyone company but giving information subject such interviews are to the same officials and agents). ethical restrictions that are encountered therefore, hold, that FELA 74 I would in all other cases parties counsel for Rule 4.2. preempt application does plain- involving corporate defendant or tandem, Instead, work in provisions tiff. Absent consent of the defendant of conduct establishing proper course counsel, informa-

railroad’s the desired lawyer, who is plaintiffs for both the through tion must normal be accessed employer, against an bringing an action methods, discovery depositions such as employer, is contacted and the who pres- or other statements taken plaintiff’s arrange counsel to ence of defendant’s counsel. interviews.6

CONCLUSION

¶75 I dissent and would remand the evidentiary hearing

matter for an as de- evidentiary hear-

scribed above. After

ing, should the trial court determine prior proper

all of its decisions were warranted,

no new trial it would be judgment again

authorized to enter once favor, thereby allowing appellant

SEPTA’s review, record, in complete

to seek with a

this court. In the event the trial court

determines that one or more of its orders warranted,

was in error and a trial is new

it would order a new trial and SEPTA or appeal post will be entitled judgment adverse full Again,

rendered. record created evidentiary hearing would enable a

thorough review of the issues raised here. Pennsylvania,

COMMONWEALTH of

Appellee,

v. JORDAN, Appellant. E.

Vincent

Superior Pennsylvania. Court of

Argued Nov. 2000. April

Filed 2001. aware, course, plaintiffs. applies I am that Rule 4.2 attorneys, just representing to all those Notes ing the use of those statements. [sic] 5. This discussion is the sole reference to Limine; the Motion in the court did not N.T., 5/18/99, then 29-30. The court at in the regard- enter written order record from the disqualified ruled that Keller was addition, in In ing the Motion Limine. violating Pa. the case for remainder of in “order” the trial nowhere the above did an associ- Goggins, R.P.C. 4.2 and that Mr. prohibit having from ex court Keller future firm, case. try in ate Keller’s parte past present communication with N.T., addition, 5/18/99, In the trial at 37. employees. SEPTA disqualified court “the statement 1999, put on 18, The court did not May 5 On SEPTA informed witnesses.” Id. state- specifically the trial court that Keller’s office had been record what witnesses’ court disqualified. ments contacting SEPTA and asserted were associate, Goggins, also that Keller’s was a violation of the stated conduct disqualified could Rules of Conduct. The court cross-examine Professional Davis, at testify proceeded Fernando a witnesses that SEPTA called to have trial, jury found trial. Id. After SEPTA SEPTA’s witness McCarthy negligent. that SEPTA regarding parte ex communica- alleged motions, tion, the trial testify post-trial filed which regarding his communications McCarthy court this (Pa.Super.2000), denied. then filed this A.2d 306 Court appeal. recently stated that a trial court sanc- tion, disciplinary warn or recommend ac- ¶ 6 first We will address the issue tion who has violated a against an the Motion in Limine relation to the Lambert, Rule of Conduct. Professional trial court’s to sanction decision counsel Although disqualifica- A.2d 345-46. for a Pa.R.P.C. violation. The order made appropriate tion and removal is an sanc- by the trial record court on was an eviden cases, remedy tion some it is a serious that, tiary ruling; trial court ruled imposed “which must be aware- 803(25), based on McCarthy Pa.R.E. important ness of the interests of a client prohibited using from statements taken in representation by client’s past from two current and one SEPTA Rimar, Inc., choice.” Slater v. 462 Pa. employee at trial. Nowhere its oral (1975). 584, 338 A.2d view of prohibit order did the trial court Keller consideration, weighty this we cannot ex having parte communication with agree with the that “a trial Dissent employees. The inference made may impose any it deems appro- sanction during the court the trial on May

Case Details

Case Name: McCarthy v. Southeastern Pennsylvania Transportation Authority

Court Name: Superior Court of Pennsylvania

Date Published: Apr 10, 2001

Citation: 772 A.2d 987

Court Abbreviation: Pa. Super. Ct.