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In response to an appeal of the dismissal of a legal malpractice suit, a Philadelphia judge said her former colleague’s decision to toss the case was “inappropriate.”

The suit was filed against Gregory R. Noonan, a former Montgomery County attorney who resigned from the practice of law after being arrested for and subsequently pleading guilty to selling drugs. Noonan was sued by a former client, Thomas Carl, for failing to file suit in time in his employment discrimination case.

Philadelphia Court of Common Pleas Judge Lisa M. Rau, who took over the case after Judge Gary DiVito retired, said DiVito should not have dismissed the suit.

Rau’s opinion, while contrary to DiVito’s ruling, does not itself offset his decision to dismiss the case.

In her opinion, Rau explained that DiVito granted summary judgment in favor of the defendant based on Noonan’s claims that he was not given adequate notice about the plaintiff’s expert witness. DiVito retired without writing an opinion in the case.

“This case was dismissed on the grounds that appellant Carl failed to conform to discovery rules for expert evidence. But appellant Carl did comply with the rules,” Rau said. “When dismissal occurs owing to a discovery violation, it should occur only in rare, severe circumstances.”

Noonan also argued that the case should be dismissed because Carl’s witness, attorney John McAuliffe Jr., did not appear in court on the day of the trial. Rau noted, however, that McAuliffe was absent because of a life-threatening medical emergency.

“Although it is unknown whether this last-minute argument about Mr. McAuliffe’s unavailability on the day of trial played any role in the trial judge’s decision to grant summary judgment, the rules require a hearing to determine if deposition testimony can substitute for the unavailable witness rather than excluding the witness’s testimony,” Rau said.

“Consequently,” she added, “if the court’s dismissal of the action was on this basis, it was inappropriate.”

Noonan was retained by Carl for a case in which Carl claimed that he was discriminated against and harassed at his workplace until he was “constructively discharged,” Rau said. All of Carl’s claims were dismissed in federal court as being time-barred.

In his malpractice suit against Noonan, Rau said, Carl alleged that Noonan failed to file a timely complaint on his behalf or notify him of his receipt of a “right to sue” letter from the U.S. Equal Employment Opportunity Commission. Rau said because Noonan and his firm, Walfish & Noonan, represented themselves pro se, they did not have professional liability insurance.

McAuliffe, Carl’s expert witness on discrimination law, testified that Noonan’s failure to advise Carl about the commission’s letter, coupled with his failure to state a timely claim, constituted a breach of the professional standards. Rau said Carl sent Noonan a letter advising him that McAuliffe would be used as an expert witness.

On June 27, more than a year after Carl sent his letter and five days before jury selection in the case, Noonan filed a motion for summary judgment, claiming he was not given advance notice of Carl’s intent to use McAuliffe as an expert witness nor did he receive McAuliffe’s qualifications, according to Rau.

However, at oral argument, Noonan reversed himself and acknowledged that he was made “aware” that Carl intended to use McAuliffe as an expert witness for malpractice, Rau said.

Despite that, the trial court granted Noonan’s motion for summary judgment. Carl asked the court for reconsideration, and when that request was denied, he appealed.

In a footnote, Rau said Noonan’s arrest for selling the prescription painkiller oxycodone, resignation, and subsequent disbarment by the state Supreme Court occurred after the malpractice case against him had been dismissed.

Rau said the Superior Court should remand the case for trial, as the decision to dismiss was inconsistent with “strikingly similar” case law.

She noted that Noonan was on notice for more than a year that McAuliffe would be testifying.

Rau also reasoned that the case should not have been dismissed based on Noonan’s argument that McAuliffe failed to appear.

“Instead of holding a hearing to determine Mr. McAuliffe’s availability and the proprietary reading of his deposition into the record or in the alternative granting a continuance, the trial judge dismissed the case,” Rau said. “For the reasons given, the equities did not support this severe result of dismissal.”

Noonan’s counsel in his disbarment matter, Samuel C. Stretton, said he was not involved in the current case and had not spoken to Noonan for some time. John L. Walfish, Noonan’s former partner, did not return a call seeking comment.

Edwin P. Smith represented Carl and did not return a call seeking comment.

P.J. D’Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDannunzioTLI.

(Copies of the 17-page opinion in Carl v. Noonan, PICS No. 14-1238, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)