Office of Disciplinary Counsel v. Gannon, 122118 PASCDC, 2531-3

Docket Nº:2531 Disciplinary Docket 3, 123 DB 2017
Opinion Judge:PER CURIAM.
Party Name:OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. THOMAS PETER GANNON, Respondent
Judge Panel:Jerry M. Lehocky Member.
Case Date:December 21, 2018
Court:Court of Judicial Discipline of Pennsylvania
 
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OFFICE OF DISCIPLINARY COUNSEL, Petitioner

v.

THOMAS PETER GANNON, Respondent

No. 2531 Disciplinary Docket No. 3

No. 123 DB 2017

Court of Judicial Discipline of Pennsylvania

December 21, 2018

Attorney Registration No. 24591 (Delaware County)

ORDER

PER CURIAM.

AND NOW, this 21st day of December, 2018, upon consideration of the Report and Recommendations of the Disciplinary Board, Respondent Thomas Peter Gannon is suspended from the Bar of this Commonwealth for a period of two years, and he shall comply with all the provisions of Pa.R.D.E. 217. Respondent shall pay costs to the Disciplinary Board pursuant to Pa.R.D.E. 208(g).

The Petition to File Petition for Review Nunc Pro Tunc is denied.

BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

OFFICE OF DISCIPLINARY COUNSEL, Petitioner

v.

THOMAS PETER GANNON, Respondent

REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

Jerry M. Lehocky Member.

TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:

Pursuant to Ruie 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania ("Board") herewith submits its findings and recommendations to your Honorable Court with respect to the above-captioned Petition for Discipline.

I. HISTORY OF PROCEEDINGS

By Petition for Discipline filed on August 15, 2017, Petitioner, Office of Disciplinary Counsel, charged Respondent, Thomas Peter Gannon, with violation of Rules of Professional Conduct ("RPC") 1.1, 1.16(a)(1), 3.1, 3.3(a)(1), 3.4(a), 4.4(a), 8.4(c), and 8.4(d), arising out of allegations that Respondent abused the court system over a period of eight years by filing multiple meritless and frivolous appeals. On September 26, 2017, Respondent filed an Answer to Petition for Discipline, in which he denied engaging in misconduct.

Following a prehearing conference on November 1, 2017, a disciplinary hearing was held on December 6 and December 8, 2017, before a District II Hearing Committee. Petitioner presented the testimony of the Honorable Charles B. Burr, II and the videotaped trial deposition of Robert C. Ewing, Esquire, taken on October 27, 2017. Petitioner moved into evidence Exhibits ODC-1 through ODC-54, as well as the transcript of the videotaped trial deposition and Exhibits marked as Ewing 1-91, excluding Ewing-59, Ewing-60, Ewing-62, Ewing-63, and Ewing-77, which were withdrawn at the deposition. Respondent appeared pro se, offered the testimony of Daniel King, testified on his own behalf, and offered Exhibits ODC-55 and ODC-56, which were admitted into evidence. The Hearing Committee accepted the parties' Stipulation pertaining to docket entries.

Petitioner filed a Brief to the Hearing Committee on January 26, 2018. Thereafter, Respondent retained counsel and filed a Brief to the Hearing Committee on February 26, 2018. The Hearing Committee filed a Report on April 27, 2018, concluding that Respondent violated RPC 1.1, 1.16(a)(1), 3.1 and 8.4(d). The Hearing Committee recommended that Respondent be suspended for a period of two years.1

On May 30, 2018, Petitioner filed a Brief on Exceptions to the Report of the Hearing Committee and requested that the Board recommend a suspension for five years as appropriate discipline.

On May 31, 2018, Respondent filed a Brief on Exceptions to the Report of the Hearing Committee and contended that no discipline is warranted, as he did not violate the Rules of Professional Conduct. Respondent requested oral argument before the Board.

On June 19, 2018, Respondent filed a Brief Opposing Exceptions of Petitioner.

Oral argument was held before a three-member Board panel on July 16, 2018.

The Board adjudicated this matter at the meeting on July 20, 2018.

II. FINDINGS OF FACT

The Board makes the following findings:

1. Petitioner, whose principal office is situated at Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, P.O. Box 62485, Harrisburg, Pennsylvania 17106, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement ("Pa.R.D.E."), with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules.

2. Respondent is Thomas Peter Gannon, born in 1943 and admitted to practice law in the Commonwealth in 1976. His attorney registration address is 552 Kelly Avenue, Woodlyn, Delaware County, Pennsylvania 19094. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

3. Respondent has no prior record of discipline and is on active status.

The Riverwatch Matter

4. Beginning in 2008 and continuing through 2018, Respondent represented Daniel King against Riverwatch Condominium Owners Association ("Riverwatch"), a non-profit condominium association. Petition for Discipline ("Petition") ¶4; Answer ¶4; ODC-5.

5. Mr. King retained Respondent to recover King's out-of-pocket costs of $3, 577.93 to repair a defective horizontal steel I-beam in the roof of his garage located at the lowest level of King's townhouse. Mr. King was aware that Riverwatch had hired Robert C. Ewing, Esquire, to sue the architect in order to recover funds to make structural repairs to each owner's garage. Mr. King made the repairs and converted his garage into additional living space before a settlement was reached in the architectural malpractice action. NT. 135-137.

6. After Riverwatch obtained the settlement funds, Mr. King refused to allow Riverwatch's contractor to enter his home unless the converted garage was restored and he was reimbursed for the cost of his repairs. Ewing Deposition Transcript ("Ewing") NT. 20-23.

7. When Riverwatch refused to reimburse Mr. King, King sued Riverwatch in Magisterial District Court. After King prevailed, Riverwatch, represented by Mr. Ewing, filed an appeal to the Delaware County Court of Common Pleas. Ewing Exhibit-2.

8. In response to Riverwatch's Praecipe and Rule to File a Complaint, Respondent filed Mr. King's Complaint on February 11, 2008. Id.

9. On February 26, 2008, Respondent filed an Amended Complaint containing counts for Unjust Enrichment, Equitable Estoppel and violation of the Uniform Condominium Act. The Amended Complaint did not set forth a claim that Riverwatch breached an agreement with the owners in the development or to pay to King a portion of the settlement from the architectural malpractice action. Ewing Exhibit-2.

10. On February 28, 2008, Riverwatch filed an Answer to the Amended Complaint with New Matter and Counterclaim ("Counterclaim") that included a request for legal fees under the Condominium Act and a per diem fine of $100.00 for each day Mr. King refused to allow Riverwatch's contractor access to King's home in order to make necessary repairs to the I-beam. Ewing Exhibit-2.

11. On March 27, 2008, Respondent filed King's Answer to the Counterclaim with New Matter. Ewing Exhibit-2.

12. The parties' claims were subject to mandatory arbitration. On October 21, 2008, an Arbitration Panel entered an award in favor of King for the sum of $3, 577.93. NT. 94; Ewing NT. 113. The Arbitrators' Award did not address the Counterclaim. NT. 96.

13. On October 23, 2008, Riverwatch filed a Notice of Appeal of the Arbitrators' Award and a separate Petition for Injunction regarding the repairs. Ewing Exhibit-2.

14. On October 27, 2009, the Honorable Charles B. Burr, II held a conference with Mr. Ewing and Respondent about Riverwatch's Petition for Injunction. During the conference, Respondent and Mr. Ewing agreed upon procedures for repairing King's garage and agreed that the issue of damages would be determined by the court if the parties could not reach an agreement on that issues. Judge Burr accepted the agreed-upon procedures by Order dated November 16, 2009. NT. 22.

15. The parties did not resolve their dispute on the issue of damages.

16. On June 3, 2010, the parties and counsel appeared before Judge Burr for a one-day bench trial. As it was an arbitration appeal, the trial was de novo. The claims presented to Judge Burr were based on the pleadings. NT. 94, 97, 99, 198-199.

17. Respondent did not understand that pursuant to the Pennsylvania Rules of Civil Procedure, the Counterclaim was included in the appeal from the Arbitrators'Award. NT. 94, 97, 99, 198-199; Ewing NT. 114-121. Respondent continued to...

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