Brown v. Halpern, 1496 EDA 2017
| Court | Superior Court of Pennsylvania |
| Citation | 202 A.3d 687 |
| Decision Date | 04 January 2019 |
| Docket Number | No. 1496 EDA 2017,No. 1714 EDA 2017,1496 EDA 2017,1714 EDA 2017 |
| Parties | John F. BROWN, Jr., Esquire v. Mark S. HALPERN, Esquire, Halpern & Levy, P.C. and Lynne Boghossian Appeal of: Mark S. Halpern, Esquire, and Halpern & Levy, P.C. John F. Brown, Jr., Esquire v. Mark S. Halpern, Esquire, Halpern & Levy, P.C. and Lynne Boghossian Appeal of: Lynne Boghossian |
202 A.3d 687
John F. BROWN, Jr., Esquire
v.
Mark S. HALPERN, Esquire, Halpern & Levy, P.C. and Lynne Boghossian
Appeal of: Mark S. Halpern, Esquire, and Halpern & Levy, P.C.
John F. Brown, Jr., Esquire
v.
Mark S. Halpern, Esquire, Halpern & Levy, P.C. and Lynne Boghossian
Appeal of: Lynne Boghossian
No. 1496 EDA 2017
No. 1714 EDA 2017
Superior Court of Pennsylvania.
Argued August 28, 2018
Filed January 4, 2019
Reargument Denied February 27, 2019
Mark S. Halpern, Drexel Hill, for Halpern, et al.
David A. Yahoff, Philadelphia, for Brown.
Steven E. Angstreich, and Patrick T. Krenicky, Philadelphia, for Boghossian.
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
OPINION BY OLSON, J.:
I. Introduction
Mark S. Halpern, Esquire ("Halpern"), Halpern & Levy P.C. ("the Firm"), and Lynne Boghossian ("Boghossian" and, together with Halpern and the Firm, "Appellants") appeal from the May 5, 2017 judgment entered in favor of John F. Brown, Esquire ("Plaintiff") in an action filed by Plaintiff under the Dragonetti Act.1 After careful consideration, we affirm.
A. Underlying Facts
Plaintiff was previously married to Leslie Brown ("Brown"). Brown is Boghossian's sister. Brown's and Boghossian's aunt, Hilda Kilijian ("Kilijian"), was wealthy. Kilijian added Boghossian's name to certain stock certificates she held. Thereafter, Kilijian asked Boghossian to remove her name from the stock certificates. Boghossian refused and, eventually, Boghossian and Kilijian agreed to a 50/50 split of the stock certificates. Kilijian placed her remaining assets in an irrevocable trust. Brown and Kilijian were named trustees of the irrevocable trust. The trust documents provided that the entire trust would pass to Brown and her issue upon Kilijian's death.
B. Underlying Lawsuit
The procedural history relating to this Dragonetti action begins with an underlying lawsuit involving the same parties. On January 8, 2009, Boghossian, through Halpern and the Firm, filed the underlying
lawsuit in the Court of Common Pleas of Delaware County against Plaintiff, Brown, and Kilijian.2 The case was later transferred to the Court of Common Pleas of Montgomery County. The premise of the lawsuit was that Kilijian intended to leave Boghossian her estate until Plaintiff and Brown intervened. The underlying lawsuit accused Plaintiff of conversion, tortious interference with contractual relations, defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. Boghossian, through Halpern and the Firm, filed an amended complaint. Plaintiff, who is admitted to practice law in Pennsylvania, sent Halpern letters detailing why the lawsuit violated the Dragonetti Act.
On September 30, 2011, Boghossian, through Halpern and the Firm, filed a second amended complaint. The second amended complained added the irrevocable trust as a defendant. When depositions were scheduled in the underlying lawsuit, Halpern attempted to delay proceedings. Plaintiff moved for judgment on the pleadings. Boghossian, through Halpern and the Firm, did not file a response to Plaintiff's motion for judgment of the pleadings and instead filed a praecipe to discontinue the claims against Plaintiff, Brown, and Kilijian. On January 31, 2013, the Court of Common Pleas of Montgomery County dismissed the claims against Plaintiff, Brown, and Kilijian with prejudice. On October 10, 2013, the Court of Common Pleas of Montgomery County granted summary judgment to the irrevocable trust. This Court affirmed and our Supreme Court denied allowance of appeal. In re Hilda Kilijian Irrevocable Tr. , 116 A.3d 639, 2014 WL 10750741 (Pa. Super. 2014) (unpublished memorandum), appeal denied , 632 Pa. 663, 116 A.3d 605 (2015).
C. Procedural History
On June 11, 2013, Plaintiff instituted this litigation by filing a complaint against Appellants under the Dragonetti Act. On April 24, 2014, the trial court ordered Appellants to answer Plaintiff's requests for discovery. Appellants appealed and this Court affirmed. Brown v. Halpern , 120 A.3d 1062, 2015 WL 4269664 (Pa. Super. 2015) (unpublished memorandum).
On September 1, 2016, Halpern and the Firm filed a motion in limine seeking to exclude the expert testimony of Attorney George Bochetto ("Bochetto"). The trial court denied that motion prior to trial. Voir dire was scheduled to commence on September 16, 2016. Halpern, who was representing himself and the Firm, did not appear for voir dire . On September 19, 2016, the trial commenced in the morning at which time another attorney for the Firm requested a continuance and showed the trial court an email from Halpern stating that he was ill and unable to attend the proceedings. The trial court did not continue the proceedings and trial began without Halpern present.
At trial, Appellants objected to a reference in Plaintiff's counsel's closing argument to a potential damages calculation and the trial court responded by issuing a cautionary instruction. Appellants never
requested a mistrial or other relief. On September 30, 2016, the jury returned a verdict in favor of Plaintiff and against Appellants. The jury awarded Plaintiff $250,000.00 in compensatory damages and apportioned 65% of the liability to Halpern and the Firm and 35% of the liability to Boghossian. The jury also awarded $1,750,000 in punitive damages against Halpern and the Firm and $300,000.00 against Boghossian. Hence, it awarded Plaintiff a total of $2,300,000.00 in compensatory and punitive damages.
Appellants filed post-trial motions. Appellants argued, for the first time in their post-trial motions, that the trial court erred by admonishing Boghossian's counsel while the jury was present. The trial court denied Appellants' post-trial motions and entered judgment in favor of Plaintiff and against Appellants on May 5, 2017. These timely appeals followed and this Court consolidated the appeals.3
D. Questions Presented
Combined, Appellants present ten issues for our review:
1. Whether the trial court erred in permitting [Plaintiff to pursue] a Dragonetti Act [c]laim for punitive damages against [Halpern and the Firm] and then refusing to strike the punitive damages award against [Halpern and the Firm] as being unconstitutional as to attorneys[?]
2. Whether the trial court erred in failing to grant a new trial due to [Plaintiff's] counsel's improper suggestion to the jury during closing argument that it award $2,000,000[.00] in damages[?]
3. Whether the trial [c]ourt erred when it failed to order a new trial as a result of the prejudice [Appellants] suffered by the trial [court]'s improper admonishment of Boghossian's counsel in front of the jury[?]
4. Whether the trial court erred and abused its discretion when it denied [Halpern and the Firm's r]equest for [a c]ontinuance of the [t]rial due to the emergency unavailability of [Halpern], lead trial counsel and a party defendant, who was suffering from a serious health issue[?]
5. Whether the trial court erred by [ ] deciding as a matter of law that the [underlying lawsuit terminated] in [Plaintiff's] favor[?]
6. Whether the trial court erred when it failed to enter [judgment non obstante veredicto ("JNOV") ] or grant a new trial when it was undisputed at trial that Boghossian relied upon [Halpern's] advice that she had a valid and viable claim against [Plaintiff] in the [underlying lawsuit?]
7. Whether the trial court erred in permitting [Bochetto], a witness with a long history of bias against [Halpern and the Firm], from testifying as an expert and then permitting him to present testimony that was both perjurious and based almost entirely upon facts not of record, based upon inadmissible hearsay, or simply manufactured by Bochetto[?]
8. Whether the trial court erred by permitting [Plaintiff's] expert to base expert opinion on hearsay statements made by persons not present at trial or otherwise subject to cross-examination [ ] where the hearsay statements were offered for the truth of the matter asserted[?]
9. Whether the trial court erred by [ ] permitting [Plaintiff] to testify at trial as to, and read into evidence, certain hearsay statements made by persons not present at trial or otherwise subject to cross-examination [ ] where the hearsay statements were offered for the truth of the matter asserted; [however,] precluding [Appellants] from introducing hearsay statements at trial ... ?
10. Whether the trial court erred by [refusing to find] as a matter of law, that [Plaintiff] did not suffer damages from Boghossian's alleged conduct and by [refusing to reduce] the amount of the jury's award against Boghossian[?]
Boghossian's Brief at 3-4; Halpern's and the Firm's Brief at 5-6.4
II. Waived Arguments
A. Constitutionality of the Dragonetti Act
Halpern and the Firm argue that the Dragonetti Act is unconstitutional to the extent that it subjects attorneys to punitive damages. This argument is waived. Pennsylvania Rule of Appellate Procedure 521 provides that:
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