A White and Williams attorney has filed an appeal of nearly $35,000 in sanctions leveled against him by a Northampton County Court of Common Pleas judge.
Judge Paula A. Roscioli sanctioned medical malpractice attorney Daniel J. Ferhat $34,646 for backing out of a scheduled arbitration and attempting to reinsert into the arbitration agreement terms that had previously been addressed, according to an opinion the judge issued in January. The sum included reimbursement for travel and arbitration expenses that plaintiffs in the underlying medical malpractice case and their counsel had incurred.
“Attorney Ferhat’s failure to proceed with arbitration during the week of Nov. 18, 2013, despite a clear agreement by all parties to do so, unnecessarily delayed the proceedings in this case, created additional legal work, and created additional expenses to the plaintiffs and their counsel, all of which amounted to dilatory and obdurate conduct on the part of attorney Ferhat,” Roscioli said.
Although the underlying medical malpractice claim was settled Feb. 7, Ferhat, along with attorneys Donald F. Ladd and Edward M. Koch, also of White and Williams, filed an appeal of Roscioli’s order on behalf of the defendants in the case. Ferhat and White and Williams are named in the appeal as aggrieved parties.
On March 19, Ferhat filed a motion for reconsideration and a notice of appeal in which he contended that his actions were taken in good faith and that there had not been a meeting of the minds regarding the terms of the binding arbitration. Ferhat further contested the fees on which Roscioli based the sanction, specifically disputing the fees she allocated for anticipated costs of rearbitrating the case.
“Ordering attorney Ferhat and White and Williams LLP to reimburse plaintiffs counsel for the costs and fees associated with a proposed arbitration that never occurred would result in an unconscionable windfall to plaintiffs counsel and an unfair detriment to movants,” the motion for reconsideration said.
Ferhat declined to comment beyond the appeal papers filed.
According to Roscioli, the parties in the underlying case, Silberman v. Loguidice, were prepared to go to trial on Nov. 18, 2013. During a pretrial conference about possibly settling the case, Ferhat suggested sending the case to binding arbitration with a high-low agreement in place. The plaintiffs agreed to proceed to a binding arbitration before JAMS Inc., and scheduled the arbitration for later that week.
After the parties agreed to the terms of the arbitration agreement, Ferhat “attempted to insert additional terms into the agreement,” Roscioli said. On Nov. 19, 2013, she said, Ferhat forwarded to plaintiffs attorneys Todd Miller, of Allentown, Pa., and Steven Bergstein, of Engel, Wiener & Bergstein, a document he drafted purporting to be a written arbitration agreement, which contained terms that had not been discussed or agreed to, including the exclusion of delay damages and a provision that the plaintiffs would only look to the defendants’ insurer for payment of any award.
According to Roscioli, the parties had already discussed delay damages on the record, and it was clear from the discussion that the parties had not agreed to waive delay damages. The parties had only agreed that any delay damages could not raise the award above the agreed upon limit, Roscioli said.
Miller and Bergstein did not agree to the terms, and would not renegotiate the agreement. Ferhat, Roscioli said, refused to sign the arbitration agreement or remit the defendant’s share of the arbitration deposit.
During a phone conference the court held with attorneys Nov. 20, 2013, Ferhat said that a number of terms had not been discussed, there was no agreement and he could not proceed to arbitration. According to Roscioli, however, Ferhat’s arguments were against “a clear record to the contrary.”
“The issues raised by attorney Ferhat in that telephone conference included a number of logistical and housekeeping issues that were not material terms, such as the location of the arbitration, a general release and lists of witnesses,” Roscioli said.
The issues Ferhat brought up were agreed to during the phone conference, Roscioli said; however, Ferhat continued to dispute the delay damages and told Bergstein and JAMS that he was canceling the arbitration, Roscioli said.
At that point, the plaintiffs had spent money on plane fare, a car rental and lodging to attend the arbitration, and the attorneys had spent money on video services, as well as numerous hours preparing for the arbitration, Roscioli said. She estimated the attorneys would need to spend about half of the time already spent on preparing for a new arbitration.
After the plaintiffs’ counsel filed a motion to assess counsel fees, costs and sanctions, Ferhat agreed to proceed to arbitration with delay damages as a possible element, Roscioli said.
Although the plaintiffs’ attorneys considered filing a default judgment as a sanction, Roscioli said that a default would improperly penalize the defendants for Ferhat’s conduct.
“There is no evidence to suggest that attorney Ferhat’s conduct after Nov. 18, 2013, was sanctioned by defendants Vito Loguidice or Orthopaedic Associates of the Greater Lehigh Valley, or that either defendant was aware of the position or actions of attorney Ferhat in attempting to renegotiate the arbitration agreement,” she said.
Bergstein said he was pleased with Roscioli’s sanctions.
“I’ve practiced law for 36 years, and I have never seen this kind of action by counsel,” Bergstein said. “It’s outrageous and I think the judge’s decision reflected that.”
(Copies of the 12-page opinion in Silberman v. Loguidice, PICS No. 14-0449, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •