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CITY PHILADELPHIA v. DISTRICT COUNCIL 33 (12/30/83)

decided: December 30, 1983.

CITY OF PHILADELPHIA, APPELLANT,
v.
DISTRICT COUNCIL 33, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, BY EARL STOUT, AS TRUSTEE AD LITEM, AND EARL STOUT, ALBERT JOHNSON, HARRY DARGAN, LEONARD TILGHMAN, GEORGE WROTEN, EARL WILLIAMS, EDWARD SIMPKINS, EDWARD WILLIAMS, AND FRANCIS ROONEY, TRUSTEES OF DISTRICT COUNCIL 33 MUNICIPAL WORKERS HEALTH AND WELFARE FUND, APPELLEES



No. 72 E.D. Appeal Docket 1983, Appeal from the Interlocutory Order of the Superior Court of Pennsylvania, No. 388 Misc. Docket No. 13, entered on May 11, 1983, denying the City of Philadelphia's Petition for Review of the March 11, 1983, uncertified, interlocutory Order of the Court of Common Pleas of Philadelphia County, No. 3504, January Term, 1983.

COUNSEL

John M. Myers, Deputy City Sol., Philadelphia, for appellant.

Richard A. Sprague, Hillel S. Levinson, Nancy D. Wasser, Philadelphia, for appellees.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott, J., filed a concurring and dissenting opinion. Nix, J., filed a dissenting opinion. Hutchinson, J., filed a dissenting opinion.

Author: Zappala

[ 503 Pa. Page 500]

OPINION

This case concerns a dispute arising out of a collective bargaining agreement between plaintiff-appellee, District Council 33, American Federation of State, County and Municipal employees (union) and defendant-appellant, the City of Philadelphia (city). The union filed suit in the Court of Common Pleas of Philadelphia, seeking to compel the city to pay certain funds allegedly due under the agreement into the union's health and welfare fund. The union was represented by Hillel S. Levinson, Esquire, and his firm, Sprague and Rubenstone. The city filed a motion to disqualify Levinson and his firm on the basis of a conflict of interest, in that Levinson, as managing director of the city, had represented the city in negotiating the collective bargaining agreement. The court denied the motion. The Superior Court denied the city's petition for review. We granted a petition for allowance of appeal.

The union contends that we have no jurisdiction, as the matter is interlocutory and unappealable. We reject that contention. An interlocutory appeal may be taken by permission, Rule of Appellate Procedure 1311. Furthermore, this Court has the power to assume plenary jurisdiction at any stage of a matter involving an issue of immediate public importance. See Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981).

Levinson and William Grab, an employee of the city's personnel department, testified during the evidentiary hearing on the motion for disqualification. The record establishes

[ 503 Pa. Page 501]

    that Levinson was the Managing Director of the city from 1972 to 1980 (N.T. 5). One of his duties as Managing Director was signatory for the city (N.T. 18). In this capacity, Levinson executed the collective bargaining agreement negotiated between the city and union for the 1975-1976 contract year. Although Levinson initially testified that he did not participate in the labor negotiations culminating in the agreement, he later indicated he was in fact involved in the negotiations (N.T. 7, 70). Levinson stated his involvement at the negotiating table was limited, however, to matters affecting the daily operation of departments which he supervised. Levinson testified that Lennox Moak, the city's financial director, handled the negotiations involving health benefits (N.T. 86).

Prior to the initial negotiating session between the city and union regarding the 1975-1976 labor agreement, the union's president forwarded a copy of the contract proposals to Levinson and the mayor. A memorandum by Jack Soloff, the city's labor consultant, was subsequently circulated to four city officials, including Levinson, stating that the union's contract proposals would be submitted formally and explained at the first negotiating session. The proposals included an increase in union members' monthly health and welfare benefits. Levinson's recollection at the hearing was that he did not discuss the health and welfare provision with anyone in the union and that he had no active role in negotiations involving the provision (N.T. 17).

Handwritten notes made by Levinson during the negotiations, and numerous documents from the negotiations, including cost projections of proposals, which he had received, were submitted into evidence. One document entitled, "NEGOTIATIONS BETWEEN CITY OF PHILADELPHIA AND DISTRICT COUNCIL 33" listed contract proposals, including proposals involving health and welfare benefits, which were submitted in various bargaining sessions. Notations related to the proposals in Levinson's handwriting appeared on the document. Levinson could only speculate as to the source of his information from which his notes

[ 503 Pa. Page 502]

    were made (N.T. 54). It is apparent, however, that he was continually aware of the progress of the negotiations through his active participation and through conversations with Moak, Soloff, and Lew Taylor, the city's personnel director.

William Grab participated in the 1975-1976 contract negotiations as "staff to the personnel director and to the negotiating team" (N.T. 92). Grab was present during the negotiations and testified that meetings were held with Levinson prior to negotiations (N.T. 93). Grab further testified that Levinson would head the negotiations when Soloff was absent due to illness, and that Levinson and Soloff would share the responsibility at other times (N.T. 93-4).

This case is governed by the Code of Professional Responsibility and specifically by Disciplinary Rule 9-101(B), which states that

"A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."

     and by Ethical Consideration 9-3, which states that

"After a lawyer leaves judicial office or other public employment, he should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving, since to accept employment would give the appearance of impropriety even if none exists."

There is a significant risk that the interest the attorney represents as private counsel will conflict with the interest that he or she represented as a public employee. Such conflict or potential conflict results in impropriety or the appearance of impropriety, which is a basis for the disqualification of the attorney. This is illustrated by a number of cases. General Motors Corp. v. City of New York, 501 F.2d 639 (2d CIR.1974) involved an attorney who, while employed by the Justice Department, participated in an anti-trust case against a bus manufacturer, signing the

[ 503 Pa. Page 503]

    complaint and having substantial responsibility in the investigatory and preparatory stages. The attorney was disqualified from representing New York City in a class action suit against the manufacturer alleging a nationwide bus monopoly. In Commonwealth v. Eastern Dawn Mobile Home Park, Inc., 486 Pa. 326, 405 A.2d 1232 (1979), we held that a former public prosecutor who investigated complaints against a mobile home park, effectuated a compromise, and issued a formal report finding that the park did not violate the Mobile Home Park Rights Act, Act of November 24, 1976, P.L. 1176, No. 261, 68 P.S. ยง 398.1 et seq., was disqualified from subsequently representing the owners and operators of the park in a matter almost identical to the one he was involved in while a public prosecutor.*fn1 We applied the disqualification to the attorney's entire firm, holding that where an attorney was barred by ethical considerations from representing a particular client, all attorneys in the same firm would be similarly barred. In American Dredging Co. v. City of Philadelphia, 480 Pa. 177, 389 A.2d 568 (1978), we held that it was improper for an attorney to represent a general contractor or subcontractor in a suit against the City of Philadelphia to recover for delays and other problems allegedly caused by a city agency's supervision of construction. There it was shown that a partner in the firm was the senior vice-president of the agency itself, and a member of its executive committee and board of directors. In those capacities, he had substantial responsibility for the agency's activities. This was sufficient for disqualification, even though he was not an attorney for the agency.

The "appearance of impropriety" is an amorphous concept. The public interest in the ethical administration of justice which is protected by this concept is not fairly served without defining the perimeters of the conduct which will give an appearance of impropriety. The concept should not be used to satisfy a subjective ...


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