April 2019 - When No Means No

by Richard W. Millar, Jr.

We have all been inundated with stories of politicians and other miscreants dealing with scandals involving unwelcome sexual predations reminding us that “no means no.” If you think this is another story from that genre, you will be disappointed . . . or perhaps relieved. This is, instead, about a lawyer who, in the words of a judge, “won’t take no for an answer.”

This is also an example of how cases involving little amounts of money can take on a life of their own—well out of proportion to their value to the parties or even the world at large. In some ways, it is reminiscent of the upper education joke that the reason faculty meetings are so contentious is that the stakes are so small.

This started with a dispute between a homeowner and his Condominium Owners Association, which is one of the surest incubators of out-of-proportion lawsuits.

Thomas Peter Cannon, a lawyer, represented Daniel King, a seventy-year-old mechanic, in trying to recover about $3,600 that Mr. King had spent to repair a defective horizontal steel i-beam in the roof of the garage of his townhouse so he could convert it to additional living space. His association, Riverwatch Condominium Owners Association, had sued the project’s architect to obtain funds to repair everyone’s garage. After the case against the architect was settled, Mr. King refused to let Riverwatch’s contractor access his unit until he was reimbursed for the costs of his repairs. As you probably guessed, Riverwatch declined to reimburse Mr. King, who then sued. Riverwatch counterclaimed for legal fees and a $100-per-day fine for every day Mr. King refused access. The parties were, in other words, off to the races.

It went to arbitration, which resulted in an award for Mr. King of $3,577.93, but which didn’t address Riverwatch’s counterclaim. So there was a trial de novo that resulted in a decision against Mr. King on his complaint, and $8,500 to Riverwatch for its attorneys’ fees. Riverwatch agreed to forego its per diem fine claim, which by that time had grown to $70,000.

Mr. Gannon filed a late motion for post-trial relief. Before it was ruled upon, Mr. Gannon filed an appeal of the judgment. The appeal was dismissed as premature. He later filed another appeal that was dismissed as too late.

I don’t want to get bogged down in the details, particularly since this all took place in Pennsylvania, which has its own unique legal jargon, such as “Praecipe to Reduce the Verdict,” and I long ago discarded my Latin dictionary. Let’s just put it this way: the litigation started in 2008, and by 2011, the court had been unable to hold hearings for twenty-nine months because of delays caused by Mr. King’s multiple appeals. In 2014, the Supreme Court of Pennsylvania denied Mr. King’s Petition for Allowance of Appeal, and it went back to the trial court to assess attorney’s fees. Mr. King then filed his tenth appeal, his eleventh appeal, his thirteenth appeal, and his fourteenth appeal. By May, 2014, he was on his seventeenth appeal.

By July of that year, he was on his twenty-third through twenty-eighth appeals.

And he wasn’t finished.

“Throughout 2015, 2016, and 2017 [Mr. Gannon] continued to file appeals.”

The Pennsylvania Supreme Court in an Order dated December 29, 2015, said that “a litigant cannot continue to challenge a judgment in perpetuity where the courts have already addressed the issues.” In retrospect, that was less than an order and more an expression of wishful thinking. Just one week later, while the ink was barely dry, Mr. Gannon filed an “Application for Reargument in the twenty-ninth Appeal,” followed a month later with a thirty-first appeal.

By June, 2016, he was up to thirty-four appeals.

In February of 2017, the court dismissed his thirty-seventh and thirty-eighth appeals.

By Order dated June 1, 2017, the supreme court said it would not entertain any further filings from Mr. Gannon or anyone representing Daniel King. So Mr. Gannon turned to federal court and filed a federal civil rights action against the trial judge and Riverwatch.

All of this ineluctably led to a Petition for Discipline that was filed on August 15, 2017. During the disciplinary hearing, Judge Burr (the trial judge of most of the state proceeding and “defendant” in the federal case) stated that Mr. Gannon’s “courtroom demeanor [was] exemplary and professional, but . . . [Mr. Gannon] had been stubbornly disobedient to most court orders” and “won’t take no for an answer.” It would be hard to argue with that statement as, by then, the appeals totaled forty-nine.

Finally, in December, 2018, the Pennsylvania Supreme Court suspended Mr. Gannon for two years, concluding: “The Petition to File Petition for Review Nunc Pro Tunc is denied.” By my count, that makes fifty.

Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.