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Hudak v. Foulk

December 5, 2007


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.


This civil rights action arises out of five criminal cases that were filed against the Plaintiff, Joseph E. Hudak, in the Court of Common Pleas of Erie County, Pennsylvania. Brad Foulk, the only named Defendant in this action, is the District Attorney of Erie County. Plaintiff is an attorney who formerly practiced law in the area of criminal defense matters. His main office was in Pittsburgh, but he also maintained a satellite office in Erie. After Plaintiff was unsuccessfully prosecuted by Foulk's office for the alleged theft of clients' funds, Plaintiff commenced this lawsuit. As matters currently stand, Plaintiff asserts three claims against Foulk under 42 U.S.C. §§ 1983 and 1985 for the alleged violation of his civil rights which he claims occurred in connection with the criminal proceedings. The essence of Plaintiff's complaint is that Foulk acted at the direction of and/or in conspiracy with Judge William R. Cunningham of the Erie County Court of Common Pleas in filing the criminal charges against Plaintiff and in causing his arrest. Plaintiff also complains about certain comments that Foulk made to the media in reference to the criminal charges.

Presently pending before me is Foulk's motion for summary judgment on all counts. For the reasons set forth below, the motion for summary judgment will be granted.


Plaintiff's Representation of Frederick Dean

On May 19, 2003, Plaintiff appeared before the Honorable Shad Connelly of the Erie County Court of Common Pleas for a jury trial in the criminal case of Commonwealth v. Frederick Dean, No. 1609 of 2002. Prior to the opening of court, Plaintiff caught the attention of Deputy Sheriff Brian Copley, who perceived that Plaintiff appeared disheveled and very flushed and smelled of alcohol. (Def.'s Appendix in Supp. of Mot. for Summary Judg. ("App.") at 489 [59-14].)*fn2 Deputy Sheriff Copley brought his concerns to the attention of Judge Connelly. (Id.) With the Judge's approval, Deputy Sheriff Copley administered a portable Breathalyzer test (PBT), which indicated that Plaintiff had a blood alcohol level of .04%. (Id.) Judge Connelly discussed this reading with Plaintiff privately in chambers and concluded that the level was so negligible as to be consistent with the use of mouthwash. (App. at 46-47 [59-5].) Judge Connelly further concluded that Plaintiff was not under the influence of alcohol and that he was fit to participate in Mr. Dean's trial. (Id.) Plaintiff tried the case and ultimately won an acquittal for Mr. Dean. (App. 488 [59-14].)

Plaintiff's Representation of Eugene Case

In late May, 2003, Plaintiff was retained by Phyllis Case to represent her son, Eugene Case, who was being detained in the Erie County Jail, ostensibly for a probation violation. According to Plaintiff, the basis for Eugene's detention was not immediately clear, as it appeared that Mr. Case might also have violated a prior DUI-related license suspension, which would have carried a penalty of mandatory imprisonment. (App. 33-34 [59-4].) On May 21, 2003, Plaintiff accepted a payment of $400.00 to look into the matter and gave Phyllis Case a written fee agreement which stated that additional legal fees might be imposed if it turned out that additional hearings were required. (App. 34 [59-4]; 484 [59-14].)

While preparations were being made to file a motion to lift Mr. Case's probation detainer, Phyllis Case called Plaintiff's Pittsburgh office on May 29, 2003 at approximately 3:00 or 4:00 in the afternoon to advise that her son was scheduled to appear the following morning before the Honorable William R. Cunningham, then-President Judge of the Erie County Court of Common Pleas. (App. 34-35 [59-4]; 484 [59-14].) Unbeknownst to Plaintiff, Mrs. Case had appeared at Plaintiff's Erie office and paid $500.00 to cover the cost of attendance at the hearing. (App. 35 [59-4].) Plaintiff, who had been out of his Pittsburgh office during the day, returned to learn of the hearing that had been scheduled before Judge Cunningham for the following morning, which conflicted with other appearances that Plaintiff had already scheduled in Pittsburgh for that day. (Id.) In light of these events, Plaintiff contacted Judge Cunningham's chambers late in the afternoon on May 29 and requested a one-day postponement of the detention hearing; however, Judge Cunningham refused the continuance. Plaintiff then attempted to get other counsel to cover the hearing but was unsuccessful. (App. 35-36 [59-4].)

On May 30, Eugene Case's scheduled revocation hearing went forward and Plaintiff did not appear. Because Mr. Case wanted to exercise his right to counsel, Judge Cunningham rescheduled the revocation proceeding for a later date. What happened next is matter in dispute. According to Judge Cunningham, a Rule to Show Cause was issued, requiring Plaintiff to appear in court on June 25, 2003 for the purpose of determining whether Plaintiff should be held in contempt of court for failing to appear at the May 30 revocation proceeding. (App. 484 [59-14].) Judge Cunningham has represented that this notice was sent to Plaintiff in the standard course of procedure from the Court Administrator's office. (Id.) Plaintiff, however, maintains that he never received the Rule to Show Cause and, moreover, suggests that no such hearing was actually scheduled. (App. 36-37 [59-4].) Plaintiff notes that the docket relative to his contempt proceedings does not reflect that the Rule to Show Cause was ever entered of record.*fn3 (Id.; App. 492 [59-14].) In any event, Plaintiff did not attend the June 25 Show Cause hearing.

On the following day, June 26, 2003, Plaintiff was scheduled to appear for a contempt hearing in front of the Hon. John A. Bozza,*fn4 also of the Erie County Court of Common Pleas. Following that hearing, Plaintiff was arrested in the courthouse on a bench warrant issued by Judge Cunningham and placed in a holding cell. (App. 37 [59-4]; 484 [59-14].) At 1:39 p.m. that day, Judge Cunningham filed a notice with the clerk of court stating that a hearing would be held at 4:00 p.m. for the purpose of determining whether Plaintiff should be held in contempt of court as a result of his failure to appear on May 30. (App. 491 [59-14].) Plaintiff was brought before Judge Cunningham that afternoon and, at the conclusion of the hearing, was found to be in contempt of court. Judge Cunningham ordered Plaintiff to pay a $500 fine, to issue a written letter of apology to both Eugene and Phyllis Case, and -- in the event Mr. Case no longer wanted Plaintiff to represent him -- to refund his client the amount of $900.00 within twenty-four hours. Plaintiff paid the fine and did not appeal the order. (App. 37-38 [59-4]; 484-485, 492 [59-14].)

Plaintiff's Representation of Mark Pollard

In late 2002, Plaintiff was hired to represent an individual named Mark Pollard. Mr. Pollard had been charged with criminal conspiracy, robbery and terroristic threats in the Erie County Court of Common Pleas.*fn5 Following his conviction and sentencing by Judge Cunningham, Mr. Pollard took a pro se appeal to the Pennsylvania Superior Court. The Superior Court docket reflects that the appeal was dismissed on November 26, 2002 as a result of Mr. Pollard's failure to comply with Rule 3517 of the Pennsylvania Rules of Appellate Procedure. See Commonwealth v. Mark Pollard, 1760 WDA 2002. Plaintiff filed an appearance on behalf of Mr. Pollard in the Superior Court on December 2, 2002 and got the appeal reinstated. Id. Plaintiff also sought, and was granted, three extensions of time in which to file a brief on Mr. Pollard's behalf; however, no brief was ever filed, resulting in a dismissal of the appeal on June 4, 2003. Id.

The Disciplinary Board Proceedings

Shortly after these events, Plaintiff became the subject of disciplinary proceedings before the Pennsylvania Supreme Court. On July 29, 2003, Judge Cunningham submitted an affidavit to the Office of Disciplinary Counsel discussing Plaintiff's conduct relative to his representation of Frederick Dean, Eugene Case, and Mark Pollard. As to the Frederick Dean matter, Judge Cunningham alleged that:

[o]n May 19, 2003, Attorney Hudak appeared before the Honorable Judge Shad Connelly in Erie County under the influence of alcohol for a criminal jury trial. He was administered a PBT. Attorney Hudak attributed the alcohol reading to the use of mouthwash. There were no sanctions imposed by Judge Connelly...*fn6

(App. 483 [59-14].)

With regard to the Eugene Case matter, Judge Cunningham discussed his version of the events leading up to the contempt proceedings, and wrote the following:

As the record reflects, Attorney Hudak took the sum of $400.00 from Mrs. Case on May 21, 2003 promising to take legal action to have her son's probation detainer lifted. The docket reflects he did nothing. There was no motion filed nor did he contact a probation officer in charge of the case nor did he check with the Court to ascertain when a revocation hearing was scheduled. When Mrs. Case called his office to inform him of the revocation hearing, he then took from her another $500.00 to appear at a revocation hearing. Hence, as of May 30, 2003, Attorney Hudak had taken the sum of $900.00 from Mrs. Case and had not made any effort nor filed any documents to have her son released. In fact to this date, the record reflects he never did anything for his client. Unfortunately for Eugene Case, he remained in jail until his re-scheduled revocation hearing on June 30, 2003 at which time he was represented by Attorney Schroeder (who is not affiliated with Attorney Hudak).

When viewed in the eyes of the consumer, namely Phyllis and Eugene Case, our profession has not been well served by Attorney Hudak. I am sure Phyllis Case and Eugene Case fully expected Attorney Hudak to appear on May 30, 2003 after they had paid him $900.00. We have had many occasions in Erie County (and I suggest in all 67 counties) to prosecute contractors who take money from homeowners and then never perform any of the promised work. Attorney Hudak is similarly situated in that he took $900.00 from Phyllis Case promising to take action to get her son released and then never did anything. (App. 485 [59-14].)

As to Plaintiff's representation of Mark Pollard, Judge Cunningham alleged that, the appeal got dismissed because Attorney Hudak failed to file a brief. As you can see from the record of the contempt hearing on June 26, 2003, Attorney Hudak tried to claim the appeal was dismissed because the client failed to file a Statement of Matters Complained of on Appeal.

Contrary to Attorney Hudak's testimony, the Superior Court Order specifically states the appeal is dismissed for his failure to file a brief.

(App. 486 [59-14].)

Judge Cunningham sent his affidavit to Attorney Richard Levine of the Office of Disciplinary Counsel. In his cover letter, Judge Cunningham opined that "disciplinary action needs to be taken immediately," and expressed his "appreciat[ion] [for] the effort [being made] towards that end." (App. 482 [59-14].)

On October 3, 2003, the Pennsylvania Supreme Court issued an order which, among other things, temporarily suspended Plaintiff's license to practice law, directed the Office of Disciplinary Counsel to file a petition for discipline within thirty days, and ordered that the matter be assigned to a hearing committee for accelerated disposition. See Office of Disciplinary Counsel v. Hudak, 839 A.2d 170 (Pa. 2003).*fn7 Two Petitions for Discipline were filed against Plaintiff by the Office of Disciplinary Counsel on November 3 and November 18, 2003 and were subsequently joined. A three-person hearing committee was empaneled and hearings were held over five days in December of 2003 and January of 2004. These proceedings culminated in the committee's report of April 30, 2004, which found that Plaintiff had violated Rules 1.3, 1.4(a), 1.16(d), and 8.4(c) of the Rules of Professional Conduct and recommended that Plaintiff's license to practice law be suspended for a period of two years. (App. 494-495 [59-15].)

Plaintiff filed exceptions to this recommendation and oral argument was held before a three-member panel of the Disciplinary Board. The matter was subsequently adjudicated by the full Disciplinary Board ...

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