Rubin v. Paul A.R. Stewart Helm Legal Servs.

Decision Date15 February 2023
Docket Number2554 EDA 2021,2555 EDA 2021,J-A01004-23,J-A01005-23
PartiesBRUCE A. RUBIN v. PAUL A.R. STEWART HELM LEGAL SERVICES, LLC AND ALISHA ALEJANDRO APPEAL OF: PAUL A.R. STEWART AND HELM LEGAL SERVICES, LLC BRUCE A. RUBIN v. STEWART, PAUL A.R. STEWART HELM LEGAL SERVICES, LLC AND ALISHA ALEJANDRO APPEAL OF: ALISHA ALEJANDRO
CourtPennsylvania Superior Court

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment Entered November 22, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s) 181002397

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM

McCAFFERY, J.

In these related appeals,[1] Paul A.R. Stewart (Stewart), Helm Legal Services, LLC (HLS), and Alisha Alejandro (Alejandro) appeal from the judgment entered November 22, 2021,[2] in the Philadelphia County Court of Common Pleas, in favor of Bruce Rubin (Rubin) in this action for wrongful use of civil proceedings.[3] On appeal, at Docket 2554 EDA 2021 Stewart[4] requests judgment notwithstanding the verdict (JNOV) and a remittitur, argues the trial court erred with respect to five evidentiary rulings, and insists a punitive damages award against an attorney is improper and unconstitutional. At Docket 2555 EDA 2021, Alejandro argues Rubin failed to prove her liability for wrongful use of civil proceedings, and the trial court erred when it disqualified her counsel ─ Stewart ─ without notice or a hearing, when she waived any conflict of interest. For the reasons below, we affirm.

I. FACTS & PROCEDURAL HISTORY - UNDERLYING ACTION

The facts in the prior lawsuit, which precipitated the present action for wrongful use of civil proceedings, are summarized by the trial court as follows:

Plaintiff in the underlying action, [Alejandro] visited Barco Optical, Inc. doing business as Philadelphia Vision Center1 ("Barco") on December 8, 2016. Barco is a provider of optometric services and sells eyeglass wear. On the above referenced date, Alejandro received optometric services from the optometrist performing eye exams at Barco, a corporate entity owned and operated by [Rubin the] defendant in the underlying action.
1 Neither Barco Optical nor Philadelphia Vision Center are named parties in this action.
Rubin is an optician;[5] he is neither an optometrist nor a Doctor of Optometry. There is no testimony that he performed an eye exam on Alejandro.
The optometrist issued a prescription for corrective lenses. There is no testimony as to the communication between Alejandro and the optometrist. The optometric services were billed to Alejandro's insurance company.
After receiving optometric services, Alejandro was asked if she wanted to purchase glasses from Barco. Alejandro assented and used the prescription to place an order for glasses, frame fitted with corrective lenses, with Barco. Alejandro also requested an anti-reflective coating for the lenses.
Alejandro did not allege, and there was no evidence presented, of any misrepresentations by Rubin or Barco when the order was placed. There was no evidence as to how the prescription was transferred to Barco. Additionally, there was no evidence that the cost of the frames and lenses were billed to an insurance company. In fact, it was Alejandro who was expected to pay for the glasses.
An invoice was created, with the prescription, to record the order. The total cost for the glasses was $399.00. No deposit was requested; and [none was] given. Alejandro was informed that the glasses would be ready for pick-up in "about a week." Based upon the above events and expressed understanding of the parties, the frames were sent to a laboratory where the prescribed lenses were customized and inserted into the frames.
Subsequently, Alejandro was notified that the glasses had been prepared and were ready for pick-up. Alejandro refused delivery and requested a copy of the written prescription. A Barco employee informed Alejandro that she needed to pay for the glasses before she could receive a copy of the written prescription. Alejandro refused and continued to request a copy of the written prescription on numerous other occasions.
Prior to January 17, 2017, Alejandro contacted [HLS] and spoke with [Stewart] about not receiving a written prescription for corrective lenses from Barco. Alejandro testified that she only wanted her eyeglass prescription.
On January 17, 2017, Stewart contacted Barco and spoke with [Rubin.[6] Alejandro arrived an hour after Stewart's conversation. At that time, [Rubin] handed to Alejandro a copy of the written prescription. No money was exchanged, [and] no further demands made. Alejandro then used the prescription to purchase glasses from another entity.
Alejandro communicated to Stewart that she had received a copy of her prescription from [Rubin]. Based upon Alejandro's understanding, the matter was resolved. There was no evidence of further communications between Rubin and Alejandro.
Ten days after Alejandro's receipt of the prescription, on January 27, 2017, Stewart emailed a Notice of Claim for Negligence and Unfair Trade Practices to [Rubin] for failure to comply with the "Optometric Practice and Licensure Act, State Board of Optometry" and the Federal Ophthalmic Practice Rules. Specifically, Stewart claimed that the above referenced law required Rubin, who is neither an optometrist [nor] doctor of ophthalmology, to provide Alejandro with a copy of her written prescription for corrective lenses after her exam. The Notice of Claim requested the preservation of documents from December 8, 2016 (exam date) to January 18, 2017 (one day after [Rubin] handed the prescription to Alejandro).
In response to the Notice of Claim, [Rubin] emailed Stewart writing that, "I believe you are baseless in your claim . . . ." Stewart then advised [Rubin] that he had "15 days to settle this matter or my office will proceed to file a writ of summons and commence discovery."
Less than a month later, on February 21, 2017, Stewart and HLS submitted a demand to [Rubin] of $25,000. Alejandro was without knowledge of the demand. As preamble to the demand, Stewart claim[ed] to have "found numerous other clients" making the same or similar allegations. Stewart did not advise that he was representing the "other clients". As to other individuals not represented by Stewart or HLS, Stewart concluded that Rubin violated HIPAA "by [posting] medical patient information on social media websites[.]"
On February 28, 2017, the underlying matter, Alisha Alejandro v. Philadelphia Vision Center, Bruce Rubin, February Term 2017, No. 7325, was commenced by writ of summons.
Pre-complaint discovery was initiated. Stewart subsequently testified at trial [in the present action] that his reasoning for seeking pre-complaint discovery was to narrow the issue and correctly identify the defendants in the underlying action. As part of his research, Stewart identified 20 or 21 entities utilizing some variation of "Philadelphia Vision Center". Upon review of the discovery provided, it was revealed that three (3) of the entities sued were fictitious names; the remaining were corporations with "Philadelphia Vision Center" as part of their names. There is no evidence that Stewart delved further into the individual records to determine if the named entities were related to one, or more, individuals and/or other entities. The discovery requests, however, included requests for admissions as well as the production of documentation of professional liability and/or malpractice insurance coverage. There were no discovery requests to determine the size and scope of Philadelphia Vision Center, [Rubin's] business.
On June 17, 2017, Stewart and HLS submitted a second settlement demand of "seven to ten thousand dollars." This sum was based upon the amount of "work and energy" that Stewart put into the case and would "likely . . . occur in the next week or so." The demand amount did not include any monies to Alejandro for her alleged injuries.
On July 5, 2017, the first of four (4) complaints [was] filed wherein Alejandro alleged that, as of January 27, 2017, she had not received a copy of her prescription. Each iteration of the Complaint alleged that Rubin "refused to provide to [her] a prescription, still demanding that she pay for eye frames, although at a reduced rate."[7]
On March 28, 2018, the deposition of [Rubin] was conducted. At that deposition, it was disclosed that [Rubin] owned only one store, but shared the fictitious name with other entities.
Even with the knowledge that the alleged activities involved only one entity, [Stewart] continued to include allegations of antitrust violations in amended complaints.
At that same deposition, Stewart and HLS learned of a billing discrepancy, unrelated to the allegations contained in the Alejandro complaints. [Sometime after the deposition, Rubin offered Alejandro $5,000 to end the litigation. See N.T., 7/15/21, at 159-60. However, Stewart and Alejandro rejected the offer, and] on April 5, 2018, . . . submitted a third demand of $159,000 to settle the matter: $59,000 for "combination of damages and attorney fees" and $100,000 related to potential violations of "some sort of insurance billing fraud or something like that." Alejandro did not authorize or approve this demand. A third amended complaint failed to include any allegations regarding [Rubin's] billing process.[8]
The basis of the settlement demand is unclear. [Rubin] self-reported the billing error to the insurance company on April 11, 2018 and was never charged in this regard.
The matter was removed to federal court on May 22, 2018. On July 17, 2018, [Stewart and HLS] submitted a fourth demand of $20,000. By August 2, 2018, the final demand was reduced to $1,500 allowing for a court determined
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