Pennica, In re

• Decision Date: 22 January 1962
• Docket Number: D--3,Nos. D--6,s. D--6
• Parties: In the Matter of Joseph A. PENNICA, an Attorney-at-Law.
• Court: New Jersey Supreme Court

Page 401

36 N.J. 401

177 A.2d 721

In the Matter of Joseph A. PENNICA, an Attorney-at-Law.

Nos. D--6, D--3.

Supreme Court of New Jersey.

Argued Jan. 10, 1961 and Nov. 8, 1961.

Decided Jan. 22, 1962.

Cuddie E. Davidson, Jr., Westfield, George F. Hetfield, Plainfield, and H. Harding Brown, Elizabeth, for the Ethics Committee of Union County.

Edmund J. Kiely, Plainfield, for respondent.

The opinion of the court was delivered by

FRANCIS, J.

A number of charges of unethical conduct were filed against the respondent Joseph Pennica, Esq., who was admitted to the bar of this State in 1951. Hearings were held thereon by the Ethics Committee of Union County. They resulted in three presentments to this court recommending disciplinary action against him. We shall consider each of them spearately in the following order: (1) the Max Sacks Matter, (2) the Monmouth County Court complaint, and (3) the Bock Matter.

I.

THE MAX SACKS MATTER.

This accusation arose out of the forgery of the signature of Sophie Sacks, wife of Max Sacks, on an application for a bank loan, on a note for the amount of the loan, and on the bank check for the proceeds of the loan. The Ethics Committee found that Pennica participated in the loan transaction and aided in its consummation, knowing of the forgery. The conclusion was reached after several hearings and study of a welter of conflicting testimony. Since the issue of credibility is paramount, our review necessarily calls for a thorough examination and evaluation of the lengthy record.

Pennica maintains his law office in Elizabeth, New Jersey. In the forenoon of April 26, 1957, John Serido telephoned him from Plainfield, New Jersey, and told him that he needed money to make good some checks he had issued. He indicated also that he had a friend with him whose credit would support a loan. Pennica suggested that they come to his office. Serido and Max Sacks, the friend referred to, both of whom lived in Plainfield, came to Pennica's office by automobile, arriving around 11 A.M. One Clement Approvato, Jr. drove the car. Everyone agrees that Serido and Sacks entered the office. There is a dispute in the testimony as to whether Approvato came in with them. Serido, Sacks and Approvato say that he did; Pennica denies it and asserts that the allegation of Approvato's presence both in his office and at the bank on the visits to be detailed, was not made until the controversy arose as to Pennica's course of conduct on that day.

Serido and Approvato had substantial criminal records. Serido had been convicted of fornication, armed robbery, a narcotics violation, and some worthless check charges. He seemed to have a particular penchant for issuing bad checks and had a number of them outstanding 'in quite a few towns' at the time of this call to Pennica. Pennica was aware of earlier worthless check charges against Serido because he had represented him in connection with some of them. Whether he knew of the complete criminal record does not appear.

A discussion took place about raising money to meet Serido's obligations in order to keep him out of jail. Without reciting the details, when it developed that Sacks owned a substantial property in Plainfield which would provide collateral, Pennica advised that he could assist Serido and Sacks in obtaining a loan at the Elizabethport Banking Company, the office of which was nearby. After persuading Sacks to apply for the loan, they walked to the Bank (Pennica denying that Approvato accompanied them; the others asserting it).

Pennica introduced Sacks to Charles J. Walker, Vice President of the Bank, who handled loan transactions, and explained to him to desire for a $2,000 loan. Serido remained at a distance, not joining in the talk; Approvato said he remained outside. After some discussion, Walker gave Sacks and Pennica a loan application form and a note for $2,280 to be completed. Walker, Sacks, Serido and Pennica agree that Pennica went to a nearby desk with Sacks and filled in the application in ink with information obtained from Sacks about the Plainfield property, his business, income, etc.; Pennica's writing appears on three sheets of the application. The circumstances strongly suggest that he used his own pen in doing so. Then Pennica had Sacks sign the papers in the three places marked by Walker. Our attention is attracted to the ink used by Pennica and Sacks. It has an odd, almost purple hue. Among other things, Pennica had noted that title to the real estate was in Max Sacks and his wife, Sophie. The forms were handed back to Mr. Walker who, after examination, advised them that Sophie's signature on the application and note was necessary as well as Max's. Following this, Sacks, Pennica and Serido left the bank, ostensibly to obtain Mrs. Sacks' signature.

At this point the crucial conflict of credibility begins. Sacks testified he advised Pennica that his wife would never sign because she neither liked nor trusted Serido. According to Sacks, Serido and Approvato, they then returned to Pennica's office. Further talk about the problem ensued there during the course of which Sacks reiterated his certainty that his wife would not approve the transaction. It is difficult to pinpoint the exact circumstances preceding the signing of Mrs. Sacks' name. It appears that in the course of discussion, Serido volunteered to write her signature on the papers. There is testimony to the effect also that Pennica suggested that Serido sign her name because he was going to pay the monthly installments on the note and no harm would be done. Serido assured Sacks that he would 'go straight' and do his best to make the payments. Sacks finally agreed and Serido added Mrs. Sacks' signature in two places on the application and two on the note. Max Sacks' signature was already on the papers, having been written at the bank. Here again, we note that Sophie Sacks' four forged signatures were written with the same purple hued ink Pennica used in filling out the application. After waiting a while to allow sufficient ime to elapse for a trip to Plainfield, all four men went back to the bank.

Pennica denies returning to his office and the events alleged to have happened there. Before the Ethics Committee he said that he handed the papers to Sacks, and told him to go to Plainfield and get his wife's signature. He instructed Sacks also to telephone him from Plainfield when Mrs. Sacks had signed, and then return to his office. The request for the telephone call was made because he did not trust Serido. Pennica's description of this scene is unusual. He said that after Walker requested Mrs. Sacks' signature and the documents were handed back, Sacks took them and 'out he went.' Pennica could not 'keep up with him. He was beginning to take off and I had to go out after him and then when I caught him I told him, 'Now, you'll have to go to Plainfield and get your wife's signature.' * * * My recolection is that Mr. Sacks was going so fast that I wanted to tell him what Walker had said--to remind him not to forget what Walker told him about getting his wife's signature and to make sure that he understood this.' After this conversation, he returned to his office alone.

Some time later, Pennica continued, Sacks and Serido appeared at the office. 'Serido came running up first, and Mr. Sacks hardly got into the office when they told me Mrs. Sacks had signed. They said, 'Come on, let's go to the bank. '' In the criminal trial against Pennica, arising out of the forgery, he testified that they gave him the papers and, on seeing Sophie's name thereon, he said to Sacks: 'Is this your wife's signature?' Sacks 'assured' him it was. He did this because he wanted to be sure in his own mind, but he made no inquiry as to why they had not telephoned him from Plainfield. He then proceeded to the bank with them and submitted the application and note to Walker. In his testimony before the Ethics Committee he said he did not question Sacks about the signature at his office but that when they arrived at the bank, he asked Sacks whether the signature on the papes was his wife's.

A bank check for $2,030.73 was prepared by Walker and given to Sacks who, according to Pennica, wanted to cash it immediately. But (Pennica testified) he said: 'No, you have to repeat the same process now. You have to now get your wife's signature on the check. He looked at it and I showed him where it was, I indicated to him. He said, 'Like we did before?' I said, 'That's right. Go back to Plainfield and get your wife's signature. '' Sacks was then to return to Pennica's office. The reason Pennica gave for asking Sacks and Serido to come back to his office was that he was doing a favor for them by arranging the loan; he was not acting as the attorney of either one of them; and, as he did not trust Serido, he wanted to do what he could to see that the proceeds were used to satisfy the bad checks. In any event, shortly thereafter the two men reappeared at his office. Sacks said, 'Here's the signature, here's the check signed.'

Sacks, Serido and Approvato dispute Pennica's statements about the endorsement of the check. Serido and Approvato testified that when Sacks and Pennica came out of the bank, Pennica told Sacks and Serido to sign it. They did so (Serido again writing Mrs. Sacks' name) leaning on a nearby parked car, according to Serido; leaning against the wall of the bank, according to Approvato. Sacks was confused as to where the signing took place. These signatures are not in the purplishtinged ink. Serido and Approvato said Pennica made an unsuccessful effort to cash the check at a store; Pennica denied it. Then they waited for some time and again walked to the bank to obtain the money.

At this juncture it is necessary to return to Pennica's version of the affair at the point where he said Sacks and Serido reappeared at his office with the signed check. He said they set out for the bank to cash it, but they walke...