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Attorney Alan B. Epstein and his firm, Spector Gadon & Rosen, have filed a federal civil rights suit alleging that the Pennsylvania Superior Court violated their due process rights when it dismissed their appeal of a $1.7 million judgment against them on the grounds that they had raised too many appellate issues. The suit was filed by attorneys Richard A. Sprague, Joseph R. Podraza Jr. and Thomas E. Groshens of Sprague & Sprague and names all seven justices of the Pennsylvania Supreme Court as defendants. The suit alleges that the Superior Court “created and retroactively applied an unprecedented and nebulous rule of appellate procedure.” As a result, the suit says, “the mechanisms of appellate review were denied in a wholly arbitrary and capricious manner.” The suit seeks an injunction to “restore” Epstein’s appellate rights by requiring the state Supreme Court to direct the Superior Court to address the merits of the appeal. Members of the Superior Court panel that ruled in the case were not named as defendants. At issue in the suit is a December 2004 decision by the Superior Court in Kanter v. Epstein in which a three-judge panel dismissed the appeal after finding that defense lawyers had “blatantly violated” procedural rules by raising 104 potential appellate issues. Ruling on a pair of appeals from Epstein and his firm, the court quashed the first set as premature and dismissed the second, saying the defendants’ procedural violations had effectively waived all the appellate issues they asked the court to review. Judge John L. Musmanno, writing for the panel, said that, by raising so many issues, the defense lawyers had “impeded our ability to undertake a meaningful review of the issues raised by the defendants on appeal.” Epstein was appealing a jury’s verdict of $215,500 and post-trial rulings by Philadelphia Common Pleas Judge Joseph I. Papalini that doubled the jury’s compensatory award to $431,000 and added $645,000 in punitive damages. The plaintiff in the suit, attorney Nancy Kanter, claimed that Epstein owed her a referral fee in a federal civil rights lawsuit filed on behalf of a minor, “Tara M.” Kanter was Tara M.’s child advocate and was later appointed as her guardian ad litem, according to the opinion. The child’s estate, through Kanter, hired Epstein and his former law firm, Jablon Epstein Wolf & Drucker, to represent the child’s interests in the civil rights suit, which blamed the city and other agencies for her severe abuse while in foster care, according to court documents. Epstein took the case with him when he joined Spector Gadon. The lawsuit settled for $4.31 million, and a federal judge awarded Spector Gadon $1.29 million in attorney fees, which came out of Tara M.’s recovery. The city had named Kanter as a third-party defendant in the lawsuit, and her legal malpractice insurer contributed $10,000 to the settlement, according to the trial court’s opinion. When Kanter demanded a portion of the attorney fees, Epstein refused, telling her that she was legally barred from recovering any fees due to her status as the child’s guardian. Kanter then filed suit, alleging breach of contract and conversion. Epstein’s lawyers moved for dismissal, arguing that, under state case law and attorneys’ rules of professional conduct, a referral fee for Kanter would have been improper because of her fiduciary status as the child’s guardian ad litem. But Papalini rejected that argument and a jury sided with Kanter, but awarded her only half of the $431,000 fee she was seeking. In a second phase of the trial, the jury decided that Kanter was not entitled to any punitive damages. The judgment swelled considerably, however, when Papalini decided that the jury was wrong to cut Kanter’s award in half and to reject her bid for punitive damages. Papalini doubled the compensatory award and added $645,000 in punitive damages. When attorney fees and contempt fines were added, the judgment against Epstein and his firm was more than $1.7 million. On appeal, the Superior Court refused to address the merits of Epstein’s arguments, saying he had raised a “preposterous” number of appellate issues. “We can only conclude that the motive underlying such conduct is to overwhelm the court system to such an extent that the courts are forced to throw up their proverbial hands in frustration,” Musmanno wrote in an opinion joined by Judges Zoran Popovich and Peter Paul Olszewski . “While such tactics may prove successful in other situations, we are unwilling to succumb to such chicanery and will not reward such misconduct,” Musmanno wrote. The Pennsylvania Supreme Court later refused to hear the case and a petition for certiorari is currently pending before the U.S. Supreme Court. But Epstein and his firm aren’t waiting to hear whether the high court will take the case up. In the federal civil rights suit, they argue that the Superior Court’s ruling violated their federal due process rights. “The Superior Court created a new rule of appellate procedure, and arbitrarily, capriciously, and improperly applied that new rule retroactively to both Epstein and Spector Gadon, without notice or opportunity to be heard, thereby abrogating their fundamental rights of appellate review as guaranteed by the Pennsylvania Constitution,” the suit alleges. “Prior to the Superior Court’s ruling in this case, no appeal had ever been dismissed on the grounds that the issues raised in a Rule 1925(b) statement submitted to a trial court were ‘too voluminous,’” the suit says. Instead, the suit says, the Superior Court had recently “praised the quality of an appellant’s brief where the appellant had raised over 100 issues in its Rule 1925(b) statement submitted to the trial court.” Kanter’s lawyer, George Bochetto of Bochetto & Lentz, declined to comment on the suit. Chief Justice Ralph Cappy could not be reached for comment. The case, Epstein v. Cappy, has been assigned to Senior U.S. District Judge William H. Yohn Jr.

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