UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDWARD AND CHRISTINE

HESLING,

Plaintiffs

v.

THE AVON GROVE SCHOOL

DISTRICT,

and

THOMAS SEIDENBERGER, former

Superintendent of the Avon Grove

School District, in his individual

capacity,

Defendants

CIVIL ACTION

No. 02-8565

 CHRISTINE HESLING,

Plaintiff

v.

AUGUSTUS MASSARO, et al.,

Defendants

CIVIL ACTION

No. 03-5795

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 1 of 11
 CHRISTINE HESLING,

Plaintiff

v.

THOMAS SEIDENBERGER, in his

official capacity as Superintendent for

the Avon Grove School District,

Defendant

CIVIL ACTION

No. 04-4874

MEMORANDUM/ORDER

March 30, 2007

The three above-captioned cases have been consolidated for pre-trial purposes.

Two pending matters are addressed in this Memorandum and Order: (1) a motion filed by

plaintiffs Edward and Christine Hesling requesting reconsideration of the court’s April

18, 2006 Opinion (a) granting defendant Thomas Seidenberger’s motion for summary

judgment in action No. 04-4874, and (b) affirming Magistrate Judge Angell’s denial of

leave to amend the complaint in action No. 03-5795, see Hesling v. Avon Grove Sch.

Dist., 428 F. Supp. 2d 262 (E.D. Pa. 2006); and (2) a motion by plaintiffs to disqualify

defense counsel Andria Saia and the Levin Legal Group from joint representation of Dr.

Seidenberger and the other defendants, based on an alleged conflict of interest among the

defendants. (Also pending are a motion to file a reply brief in one case, and an amended

reply brief in another, which will be granted.) The facts and background of the underlying

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 2 of 11
 Docket Nos of motion in each of the 3 cases 1

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controversy and these three separate actions are set forth at length in the court’s April 18,

2006 opinion and need not be repeated here. See Hesling, 428 F. Supp. 2d at 264–68. 

Motion for reconsideration

The purpose of a motion for reconsideration, we have held, is to

correct manifest errors of law or fact or to present newly discovered

evidence. Accordingly, a judgment may be altered or amended if the party

seeking reconsideration shows at least one of the following grounds: (1) an

intervening change in the controlling law; (2) the availability of new

evidence that was not available when the court granted the motion for

summary judgment; or (3) the need to correct a clear error of law or fact or

to prevent manifest injustice.

Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citations and internal

quotation marks omitted). Here, plaintiffs argue for reconsideration on the basis of the

third ground—what plaintiffs characterize as “manifest error of law.” See Pls.’ Mem.

Supp. Mot. for Recons. 2.

This court granted Dr. Seidenberger’s motion for summary judgment because the 1

plaintiffs failed to administratively exhaust their claims, as required by the Individuals

with Disabilities Education Act (IDEA). Because “Ms. Hesling . . . never sought

administrative remedies for her retaliation claim,” I found that “Ms. Hesling comes before

this court in an unacceptable posture for an IDEA claim—she is not presently ‘aggrieved

by the findings or decision’ of the IDEA’s administrative process, and, while she bears

the burden to do so, she has not presented any compelling argument that exhaustion

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 3 of 11
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should be excused.” Id. at 274, 276. I noted that several courts had held that

compensatory damages were “not available in actions brought directly under the IDEA,”

and thus, arguably, compensatory damages were not available through the IDEA’s

administrative proceedings. Id. at 274 (noting that “[t]he Third Circuit has not settled the

question”). However, I concluded that “at least part of the relief sought by Ms.

Hesling—declaratory relief for violation of her rights under the IDEA—is available

through the statute’s administrative proceedings,” and that “[i]n light of the availability of

some of the relief sought, exhaustion is required.” Id. at 275.

In their motion for reconsideration pursuant to Federal Rule of Civil Procedure

59(e) and Local Rule of Civil Procedure 7.1(g), plaintiffs claim that “[c]ontrary to the

Court’s opinion . . . both the IDEA and its implementing regulations specifically

precluded the Plaintiff from raising her damage claims against Seidenberger in IDEA

administrative proceedings, as well as her claims for declaratory relief emanating from

Seidenberger’s retaliation against her.” Pls.’ Mem. Supp. Mot. for Recons. 2. Therefore,

plaintiffs claim, the court’s decision as to administrative exhaustion constitutes a

“manifest error of law.” Id. 

As noted, the unavailability of a damages remedy in administrative proceedings

was assumed in the court’s earlier opinion—the dispositive question was the availability

of declaratory relief. As to this question, plaintiffs provide no reason to reconsider the

court’s decision. Plaintiffs cite no authority for the proposition that declaratory relief

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 4 of 11
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cannot be granted in IDEA administrative proceedings. Rather, they argue that claims for

retaliation against a parent are not within the jurisdiction of an IDEA hearing officer, and

thus could not be raised in administrative proceedings. The basis for this claim appears to

be that such claims are not sufficiently “relat[ed] to the identification, evaluation, or

educational placement of the child, or the provision of a free appropriate public education

to [a] child.” 20 U.S.C. § 1415(b)(6). Again, however, plaintiffs cite no authority for this

proposition. 

As Judge Brody has noted, “what may seem to be a clear error of law [may] in fact

[be] simply a disagreement between the Court and the litigant.” Reich v. Compton, 834 F.

Supp. 753, 755 (E.D. Pa. 1993) (quoting Dodge v. Susquehanna Univ., 796 F. Supp. 829,

830 (M.D. Pa. 1992)). I find this to be the case here. The rationale for the court’s holding

was explained in the previous opinion, and plaintiffs cite no authority that would

demonstrate that the opinion built upon a clear error of law. Therefore, the motion for

reconsideration will be denied. 

Motion to disqualify defense counsel

“The district court’s power to disqualify an attorney derives from its inherent

authority to supervise the professional conduct of attorneys appearing before it.” United

States v. Miller, 624 F.2d 1198, 1201 (3d Cir. 1980). “Although disqualification

ordinarily is the result of a finding that a disciplinary rule prohibits an attorney’s

appearance in a case, disqualification never is automatic.” Id. “In order to show that

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 5 of 11
 “The Local Rules of the United States District Court for the Eastern District of 2

Pennsylvania incorporate the Pa. R.P.C. [(Pennsylvania Rules of Professional Conduct)],

which the Supreme Court of Pennsylvania has adopted.” In re Pressman-Gutman Co.,

459 F.3d 383, 388 n.6 (3d Cir. 2006) (citing E.D. Pa. Local R. 83.6(IV)(B)).

6

disqualification is proper, the party seeking disqualification must clearly show[] that

continued representation would be impermissible.” Lease v. Rubacky, 987 F. Supp. 406,

407 (E.D. Pa. 1997) (internal quotation marks omitted).

Plaintiffs move to disqualify Andria Saia, Esq., and the Levin Legal Group

(“defense counsel”), on the grounds that defense counsel’s joint representation of (1) Dr.

Seidenberger in his personal and official capacities and (2) the individual members of the

school board (“Massaro, et al.”) in their personal capacities presents an unwaivable

conflict of interest under Rule 1.7(b) of the Rules of Professional Conduct. The 2

underlying claims in this case revolve around a letter to the editor of a local newspaper

which allegedly defamed Ms. Hesling. Ms. Hesling alleges that the letter was written at

the direction of Dr. Seidenberger and the school board, in retaliation for her attempts to

vindicate her child’s rights under the IDEA. Plaintiffs claim that the school board

members and Dr. Seidenberger will likely attempt to “shift the blame” for the creation

and publication of the letter to the editor:

Each of the named administrators, including Dr. Seidenberger, has been

sued in their respective individual capacities for the roles they played in the

drafting and sending of [the] Letter to the Editors. The roles played by Dr.

Seidenberger, Massaro, and the other District administrators, however,

while all culpable, were very different. Indeed, because their respective

versions of the events differ in such significant ways, as do the elements of

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 6 of 11
 Title 28, Section 1927 of the United States Code provides: 3

Any attorney or other person admitted to conduct cases in any court of the

United States or any Territory thereof who so multiplies the proceedings in

any case unreasonably and vexatiously may be required by the court to

satisfy personally the excess costs, expenses, and attorneys’ fees reasonably

incurred because of such conduct.

 Rule 1.7 of the Pennsylvania Rules of Professional Conduct, see supra note 2, as 4

amended August 23, 2004, and effective January 1, 2005, states:

Rule 1.7. Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client

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their defenses, there is a conflict in their interests which does not allow Ms.

Saia and/or the Levin Group to adequately represent any of them.

Pls.’ Mem. Supp. Mot. to Disqualify 1–2. 

Defendants argue that there is no conflict of interest because there is no material

difference in their positions—i.e., that Dr. Seidenberger’s contention that he had no

involvement in writing the letter is wholly distinct from, and does not imply, any

accusation that the school board members were involved and/or culpable. Further,

defendants argue that, to the extent any conflict exists, it has been validly waived. In

support of this assertion, defendants have presented affidavits from counsel and all

individual defendants averring that they have been apprised of the alleged conflict and

have voluntarily given “informed consent” to the continued joint representation.

Defendants further argue that they are entitled to costs incurred in responding to

plaintiffs’ motion under 28 U.S.C. § 1927.3

In general, Rule of Professional Conduct 1.7 allows waiver of a potential conflict

of interest where “each affected client gives informed consent.” However, in cases of 4

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 7 of 11
if the representation involves a concurrent conflict of interest. A concurrent

conflict of interest exists if:

(1) the representation of one client will be directly adverse to

another client; or

(2) there is a significant risk that the representation of one or

more clients will be materially limited by the lawyer's

responsibilities to another client, a former client or a third

person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under

paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able

to provide competent and diligent representation to each

affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by

one client against another client represented by the lawyer in the

same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent.

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very serious or irreconcilable conflicts, the conflict may be unwaivable. In the balance of

this section, I first consider whether the alleged conflict in this case is within this subset

of unwaivable conflicts. Concluding that it is not, I then find that any conflict has been

validly waived.

A conflict of interest may be so severe as to impede the fair operation of the courts

and preclude continued joint representation, regardless of any waiver. Cf., e.g., United

States v. Jones, 381 F.3d 114, 120 (2d Cir. 2004) (finding a “per se unwaivable conflict

of interest” where “the attorney’s self-interest in avoiding criminal charges or harm to his

reputation were enough to influence every aspect of his representation of defendant”);

Sapienza v. New York News, Inc., 481 F. Supp. 676, 680 (S.D.N.Y. 1979) (finding

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 8 of 11
See also Lease, 987 F. Supp. at 407–408 (finding, where counsel sought to 5

represent “himself, . . . his law firm,” and an individual client, that “the interests are too

adverse to allow joint representation” because counsel and the law firm were “directly

liable” to their individual client on related claims); Kaiser v. Stewart, No. 96-6643, 1997

WL 186329, at *3 (E.D. Pa. Apr. 10, 1997) (stating that the “type of conflict” in which

“disqualification is proper even in the face of a valid client consent . . . is most likely to

arise in the criminal context”).

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conflict unwaivable where it was “far from obvious that [counsel] could adequately

represent both [a defendant] and the plaintiffs”). However, in contrast to the egregious

conflicts in cases like Jones and Sapienza, which threaten the “‘confidence and respect of

the community towards its bench and bar’ even where the parties have consented to the

multiple representation,” Sapienza, 481 F. Supp. at 680 (quoting Estates Theatres, Inc. v.

Columbia Pictures Indus., Inc., 345 F. Supp. 93, 98–99 (S.D.N.Y. 1972)), the alleged 5

conflict in this case is relatively minimal. I find that the alleged conflict may be waived

under Pa R.P.C. 1.7(b).

Defense counsel, who “know[] the intricacies of this case far better than the court,

ha[ve] stated that the representation of none of [their] clients will be adversely affected,”

Kaiser v. Stewart, No. 96-6643, 1997 WL 186329, at *3 (E.D. Pa. Apr. 10, 1997).

Furthermore, each defendant avers that he or she is cognizant of the potential conflict and

has given “informed consent” to the continued joint representation. Under these

circumstances, and taking into account that “‘motions to disqualify opposing counsel

generally are not favored,’” Jordan v. Phila. Hous. Auth., 337 F. Supp. 2d 666, 678 (E.D.

Pa. 2004) (quoting Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200,

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 9 of 11
10

1203 (E.D. Pa. 1992)), I will deny the motion to disqualify. “It is not for the court to

second guess decisions of the various defendants in this case . . . . or to compel a party to

engage separate counsel it may not be able to afford, if the party understands the

‘implication of common representation and the advantages and risks involved.’” Kaiser,

1997 WL 186329, at *4 (quoting former text of Pa. R.P.C. 1.7(b)); cf.

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 441 (1985) (Brennan, J., concurring)

(“When a trial court mistakenly disqualifies a party’s counsel . . . the court in essence

permits the party’s opponent to dictate his choice of counsel. . . . [T]his result is in serious

tension with the premises of our adversary system.”). 

However, because plaintiffs’ motion was thoroughly argued and reflected a

colorable claim of potential conflict, I will not exercise my discretion under 28 U.S.C.

§ 1927 to award costs, expenses or fees to defendants.

ORDER

AND NOW, this 30th day of March, 2007, for the reasons stated above, it is

hereby ORDERED that:

1. Plaintiffs’ motions for leave to file a reply brief (Civil Action 03-5795,

Docket No. 49; Civil Action 04-4874, Docket No. 46) are GRANTED;

2. Plaintiffs’ motion for leave to file an amended reply brief (Civil Action 04-

4874) is GRANTED;

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 10 of 11
See Civil Action 03-5795, Docket No. 43; Civil Action 04-4874, Docket No. 37. 6

See Civil Action 02-8565, Docket No. 60; Civil Action 03-5795, Docket No. 35; 7

Civil Action 04-4874, Docket No. 29.

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3. Plaintiffs’ motion for reconsideration of the court’s Opinion of April 18,

2006 is DENIED;

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4. Plaintiffs’ motion to disqualify defense counsel is DENIED as to civil 7

actions No. 02-8565 and No. 03-5795 and DISMISSED as MOOT as to

civil action No. 04-4874; and

5. In accordance with the parties’ stipulation in civil action No. 02-8565

(Docket No. 73), plaintiffs shall file any response to the Avon Grove School

District’s Motion for Summary Judgment (Docket No. 71) within

twenty-one days of the filing of this Order.

FOR THE COURT:

/s/ Louis H. Pollak

 

Pollak, J. 

Case 2:03-cv-05795-LP Document 52 Filed 03/30/07 Page 11 of 11