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A group of several plaintiffs whose attorney’s unexpected illness allegedly caused the dismissal of their complaint should be allowed a second bite at the apple, a Philadelphia judge has ruled. In Godfrey v. Pennsylvania Financial Responsibility Assigned Claims Plan, Common Pleas Judge Annette M. Rizzo wrote that the case’s “unusual circumstances” resulted in her sua sponte decision to vacate a January 2004 order dismissing the plaintiffs’ complaint with prejudice and to reinstate their complaint. The case stems from a June 2001 motor vehicle accident. According to Rizzo’s opinion, 33 pending matters were discussed by court of common pleas officials after plaintiffs’ lawyer Robert S. Fisher withdrew from practice in June 2004. “During his representation of the [ Godfrey plaintiffs], attorney Fisher purportedly disappeared and remained incommunicado from the end of December 2003 through January of 2004, without regard for his clientele,” Rizzo wrote in an opinion filed last week. “Many of attorney Fisher’s cases were subject to dismissal due to his lack of due diligence.” According to an August 2004 order from Philadelphia Common Pleas President Judge Frederica A. Massiah-Jackson, Fisher was suspended from the bar for one year. In an interview with The Legal Intelligencer Thursday, Fisher said he was hospitalized for several months in the winter of 2003-2004 for an illness called necrotizing fascitis, which he described as a flesh-eating bacterial infection which went undiagnosed for quite some time. Fisher said he always tried to serve his clients to the best of his ability and that he wishes now that he had had in place then a more comprehensive continuing-representation plan in the event of a debilitating illness. He suggested that all solo practitioners make such arrangements, if they have not already done so. “The most anybody could accuse me of is that I got sick and didn’t have enough backup plans, I guess,” Fisher said. According to the opinion, the Godfrey plaintiffs filed suit in June 2003, and arbitration was scheduled for early winter 2004. During the pre-trial phase, Fisher failed to timely produce discovery documents requested by the matter’s defendants, and monetary sanctions were later imposed, the opinion stated. At the winter 2004 arbitration, neither Fisher nor the plaintiffs appeared for arbitration, and judgment was entered in favor of the defendants. The plaintiffs later testified that they were told to appear at Fisher’s office on what they later learned was the day of the arbitration in the case, waited for several hours and were ultimately told Fisher was not coming and that their meeting had been canceled. They were never told of the missed arbitration, they said. They did not appeal the arbitration order against them within the 30-day time period granted under state law, according to the opinion. Rizzo found that Pennsylvania Rule of Civil Procedure 126 gives her the authority to sua sponte revive the Godfrey plaintiffs’ case. “Notwithstanding this court’s need to abide by the letter of the rules for purposes of clarity and stricture, the essence of [Rule 126] and the spirit of congruous case law indicate that the court’s application must be tempered by particular facts, to be determined on a case-by-case basis,” she wrote. “This court’s [most recent] order was proper as it was issued, in part, to address procedural errors that occurred … as a result of the inaction of attorney Fisher, an officer of the court.” Neither the trial court nor the arbitration panel, she continued, based any of its decisions on the merits of and legal issues pertaining to Godfrey. She also concluded that there is precedent for bypassing the 30-day arbitration appeal deadline when “unique and compelling circumstances” are involved. “As extensively detailed supra, the actions of attorney Fisher constituted extraordinary circumstances which justified this court’s actions in providing an equitable remedy,” she wrote. Defense attorney Thomas Kelly of Bazelon Less & Feldman in Philadelphia said he will stress at the appellate level that regardless of Fisher’s actions, the Godfrey plaintiffs failed to appeal the arbitration within 30 days. Gerald Jay Pomerantz of Pomerantz & Associates in Philadelphia, who according to the opinion took over representation of the Godfrey plaintiffs and a number of other Fisher clients, did not immediately respond to a call seeking comment.

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