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A Pennsylvania Superior Court panel has tossed out an appeal after finding that defense lawyers “blatantly violated” procedural rules when they flooded the courts with appellate issues that were too many and too wordy. Considering a pair of appeals from attorney Alan B. Epstein and his law firm, the court quashed the first set as premature and refused 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 the defendants’ misconduct “impeded our ability to undertake a meaningful review of the issues raised by the defendants on appeal.” In so ruling, the court affirmed the Philadelphia trial court’s judgment, which included $431,000 in compensatory damages, $645,000 in punitive damages and more than $211,000 in attorney fees and contempt charges assessed against Epstein and Spector Gadon & Rosen. Kanter v. Epstein and Spector Gadon & Rosen is a dispute over a guardian ad litem’s right to a referral fee. In an opinion published Dec. 10, the three-judge panel said the defendants had breached their “duty of good faith and fair dealing with the court,” in part by failing to be concise in their appellate filings, as court rules require. The panel pointed to the “preposterous” number of appellate issues that Epstein and his firm raised in documents submitted to the trial court — 104 issues in all, if one doesn’t count “sub-issues” that were also included. “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. “While such tactics may prove successful in other situations, we are unwilling to succumb to such chicanery and will not reward such misconduct.” Senior Judges Zoran Popovich and Peter Paul Olszewski also participated in the decision.The ruling was a victory for plaintiff Nancy Kanter and her attorney, George Bochetto of Bochetto & Lentz, who had moved to quash the premature appeals. Epstein referred requests for comment to his lawyer, Gabriel L.I. Bevilacqua at Saul Ewing, and to lawyers representing his firm at Sprague & Sprague. Bevilacqua and Richard A. Sprague said they would ask the Superior Court to reconsider the decision en banc. Bevilacqua said the standard that the Dec. 10 ruling sets is an “impossible” one to meet. “This was a fine panel — really fine judges — but I think they’ve made a terrible mistake,” he said. The Rules of Appellate Procedure mandate that lawyers include in statements to the trial judge all issues they might possibly address on appeal, Bevilacqua said. “The rules are written for litigators and litigants to err on the side of inclusion,” he said. “The standard is, if you don’t include [an issue] you’ve waived it. Now, this court is saying, ‘If you include too much, you’ve waived.’ It’s kind of a Catch-22, don’t you think?” Sprague, one of the attorneys representing Spector Gadon, said in a statement, “I disagree totally with the court’s opinion. I’m not going to lay out the reasons why in the press.” The plaintiff, attorney Kanter, claimed she was owed a referral fee for her part in a federal civil rights lawsuit filed on behalf of a minor, “Tara M.” Kanter was Tara M.’s child advocate and 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 was settled for $4.31 million four years ago, 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. Philadelphia Common Pleas Judge Joseph I. Papalini wrote that opinion. He presided over the 2002 trial at which jurors found that Epstein and Spector Gadon had breached a contract with Kanter and committed conversion of the allegedly promised $431,000 referral fee. The fee agreement was never reduced to writing, according to the court opinions. The defendants have argued in court documents 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. Kanter maintained that her scope as guardian was limited to setting up a bank account in which to deposit money donated by members of the public after the child’s tragic situation was publicized, according to court documents. Jurors awarded Kanter $215,000 in compensatory damages but declined to award punitive damages, according to the opinion. Kanter requested a new trial on punitive damages, arguing in part that Epstein and his firm had not brought all relevant information about their net worth to trial, according to court documents. Papalini ordered Epstein, his wife and their accountant to comply with post-verdict asset discovery. The defendants asserted in court filings that when faced with this prospect, they requested the court prothonotary enter final judgment on the jury’s $215,000 award and appealed that judgment to the Superior Court in January 2003. Papalini considered these appeals from the defendants premature because he understood that all parties had agreed to extend the rule governing entry of such judgments for three months. Last week, the Superior Court agreed with Papalini’s interpretation of the record and quashed the January 2003 appeals. Despite the defendants’ interlocutory appeals, Papalini considered various post-trial and discovery motions that were pending, as well as a request from Kanter that he sanction her opponents for failure to comply with court orders. In March 2003, Papalini granted Kanter’s motion for additur, increasing the compensatory award to $431,000. He also overruled the jury and imposed $645,000 in punitive damages, tripling the jury’s compensatory award. He ordered the defendants to pay more than $211,000 in attorney fees and contempt charges. Both sides appealed the order, and Papalini asked the parties to file concise statements of the issues to be raised on appeal. This was where the Superior Court found fault with the defendants’ conduct.Musmanno wrote, “The statements filed by the defendants were anything but concise.” Spector Gadon’s 15-page statement “included 55 issues that it purportedly sought to raise on appeal and also incorporated by reference the 49 issues raised by Epstein” in his statement. “Likewise,” Musmanno noted, “Epstein filed a 15-page statement that raised the 49 issues, and also incorporated by reference the 55 issues raised by [Spector Gadon].”By raising such an “outrageous number” of issues, the defendants “deliberately circumvented” the meaning and purpose of Rule 1925(b) of Appellate Procedure, which requires appellants to file “concise statements” of the matters complained of on appeal, the Superior Court said. “This forced the trial court to guess which issue the defendants would actually raise on appeal,” Musmanno wrote. “We note that despite the fact that the trial court authored an 85-page opinion, the trial court was, through no fault of its own, unable to provide a comprehensive analysis of the issues it did address due to the preposterous number of issues identified by the defendants. This too has impeded our ability to undertake a meaningful review of the issues raised by the defendants on appeal.” The defendants could never address 104 issues on appeal because their appellate briefs are limited by page number, Musmanno reasoned. Also, the “statement of the questions” a party wishes the court to address are not to “ordinarily exceed 15 lines” and never exceed one page, the judge said, quoting court rules. The defendants eventually raised only 11 of the 104 issues, although Bevilacqua noted that multiple issues were incorporated into the numbered 11 paragraphs. “You try to frame the questions in a way that could catch the attention of the Superior Court,” Bevilacqua said. The defendants were complaining about Papalini’s instructions to the jury, his awarding additur and punitive damages, ordering post-verdict asset discovery, his imposition of contempt fines and his imposition of attorney fees without a hearing, among other issues.They ran over the 15-line mark, however. Musmanno said, “The defendants were only able to contain their statements of the question on one page through the use of single spacing, decreased font size, and altered margins.” Bevilacqua said that, by not addressing the merits of the defendants’ appeals in their ruling, the Superior Court was effectively depriving his client of appellate review. “There are very serious constitutional issues they didn’t address,” he said, citing as an example Papalini’s imposition of punitive damages in disregard of the jury’s finding. “That is both unfair and a conclusion based on no precedent.”

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