IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD HOLSWORTH and ELIZABETH : CIVIL ACTION

HOLSWORTH, :

: 05-1116

Plaintiffs :

:

v. : 

:

PHILIP J. BERG, ESQ., :

:

Defendant :

MEMORANDUM AND ORDER

JOYNER, J. June 2, 2005

Via the instant motion, Third Party Defendants Carpenters

Health and Welfare Fund of Philadelphia and Vicinity, Carpenters

Pension and Annuity Fund of Philadelphia and Vicinity, Carpenters

Savings Fund of Philadelphia and Vicinity, Carpenters Joint

Apprentice Committee, National Apprenticeship and Health and

Safety Fund, Metropolitan Regional Council of Philadelphia and

Vicinity, United Brotherhood of Carpenters and Joiners of

America, and Carpenters Political Action Committee of

Philadelphia and Vicinity (“Carpenters Health”) move for

sanctions pursuant to Federal Rule of Civil Procedure 11 against

Defendant Philip J. Berg, Esquire. For the reasons which follow,

the Third Party Defendants’ Motion shall be granted.

Factual Background

The instant legal malpractice case has its origins in an

Employee Retirement Income Security Act (“ERISA”) action brought
2

in May of 2001 by Carpenters Health against Plaintiff Richard

Holsworth and his contracting company, Richard’s General

Contracting, both represented by Defendant Philip J. Berg. Mr.

Berg failed to respond to Carpenters Health’s complaint, and

default judgment was entered against his clients in February of

2002. In April of 2002, Mr. Berg filed a Petition to Strike Off

Judgment or, in the Alternative, to Open Default Judgment and

Stay Execution, but this petition was denied on its merits in

July of 2002. In January of 2003, Carpenters Health moved for

supplemental judgment to recover additional attorneys’ fees and

costs incurred while opposing Mr. Berg’s petition and collecting

the initial judgment. Mr. Berg again failed to respond, and

supplemental judgment was granted in August of 2003. See

generally, Carpenters Health, et al v. Richard’s General, et al,

No. 01-2338 (E.D. Pa. 2001).

Plaintiffs Richard and Elizabeth Holsworth now seek recovery

from Mr. Berg for his negligence and neglect in representing Mr.

Holsworth and Richard’s General in the above-described ERISA

case. This malpractice action was brought before the Court of

Common Pleas of Philadelphia County in February of 2004, and

removed to federal court after Mr. Berg joined Carpenters Health

as Third Party Defendants. Mr. Berg, who is proceeding pro se,

alleges in his Third Party Complaint that the Carpenters Health

suit wrongfully sought contributions that were never owed by Mr.
1 This Court also found that Defendant Berg lacked thirdparty standing to bring a fraud claim against Carpenters Health

on behalf of Plaintiffs. Holsworth, 2005 U.S. Dist. LEXIS 7288

at 8-9.

3

Holsworth, and that the pursuit of these funds “constitute[d] a

fraud upon the Court and a fraudulent taking from the

Holsworth’s.” Third Party Complaint, ¶ 17. 

On March 30, 2005, Third Party Defendants moved for summary

judgment on the grounds that the claims against them had no basis

in fact or law. Mr. Berg failed to file a response, and his

Third Party Complaint was dismissed with prejudice on April 26,

2005. See Holsworth v. Berg, No. 05-116, 2005 U.S. Dist. LEXIS

7288, 2005 WL 984193 (E.D. Pa. 2005). In our Order, this Court

found that Mr. Berg lacked standing to even raise a claim against

Carpenters Health, because he had suffered no legally cognizable

injury in fact, let alone an injury fairly traceable to the

actions of Carpenters Health or any other party.1 Holsworth,

2005 U.S. Dist. LEXIS 7288 at 7-8. Furthermore, even if Mr. Berg

did have standing to raise allegations of fraud against

Carpenters Health, this Court found that his claims were timebarred, substantively inadequate, and irrelevant to his defense

of the pending malpractice action. Id. at 8-11. “As an

attorney’s obligation to diligently defend his client exists

regardless of whether the claims against the client are

meritorious or frivolous,” we wrote, “Defendant cannot excuse his
2 As Third Party Defendants filed the instant motion on May

9, Mr. Berg’s response was due on or before May 26. On May 31,

Mr. Berg’s secretary called chambers to request permission to

move for an extension of time to respond. She noted that Mr.

Berg had been out of town for two or three weeks, and would not

be returning until June 9. This Court agreed to consider an

untimely motion for an extension, which Mr. Berg’s secretary said

would be filed on June 1. No such motion was filed on that date. 

Instead, a letter bearing the signature of Mr. Berg’s legal

assistant was faxed to chambers on June 2, requesting an

extension of time until June 27 in which to respond to Third

Party Defendants’ Motion. As Mr. Berg has consistently failed to

satisfy his obligations before this Court, and as Third Party

Defendants’ Motion for Rule 11 Sanctions is ripe for review, this

Court is unwilling to extend Mr. Berg any further courtesy.

4

professional negligence by now challenging the legitimacy of the

Carpenters Health suit. The time for debating the merits of

Carpenters Health’s ERISA claims has long since passed; indeed,

it is Mr. Bergs’s failure to raise these challenges in a timely

fashion that brings him before this Court as a defendant.” Id.

at 8. This Court further noted that Mr. Berg had made no efforts

to challenge the Carpenters Health action on grounds of fraud

until being faced with a potentially meritorious malpractice suit

three years later. Id. at 11-12. 

While dismissing with prejudice Defendant’s Third Party

Complaint as frivolous, this Court retained jurisdiction over the

action to permit Third Party Defendants to file a Motion for Rule

11 sanctions. Id. at 13. That motion is presently before this

Court. Mr. Berg, whose standards for representing himself pro se

are apparently as lax as his standards for representing paying

clients, has, once again, failed to file a timely response.2
5

Discussion

Federal Rule of Civil Procedure 11 establishes that the

signature of an attorney or party on a document filed with the

court constitutes a certification that the signer has read the

document, that the signer has conducted “reasonable inquiry” to

ensure that the document is well grounded in fact and warranted

by existing law (or a good faith argument for the modification of

such law), and that the document is not being filed for any

improper purpose, “such as to harass or to cause unnecessary

delay or needless increase in the cost of litigation.” Fed. R.

Civ. P. 11(b). If a court finds that Rule 11 has been violated,

the imposition of sanctions is mandatory. See Ross v. Jolly, 151

F.R.D. 562, 567 (E.D. Pa. 1993) (citing Project 74 Allentown,

Inc. v. Frost, 143 F.R.D. 77, 83 (E.D. Pa. 1992), aff'd w/out

opinion, 998 F.2d 1004 (3rd Cir. 1993)). 

Rule 11 was designed to “prevent abuse caused not only by

bad faith but by negligence and, to some extent, by professional

incompetence.” Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3rd

Cir. 1987). However, the Third Circuit has interpreted the

language of Rule 11 to prescribe sanctions only in “exceptional

circumstances,” such as where a claim or motion is “patently

unmeritorious or frivolous.” Doering v. Union County Bd. of

Chosen Freeholders, 857 F.2d 191, 194 (3rd Cir. 1988) (citing

Gaiardo, 835 F.2d at 483). In determining whether Rule 11 has
6

been violated, the court must avoid the use of hindsight, but

must make an independent determination of whether the signing of

the document was objectively reasonable under the circumstances. 

See Gaiardo, 835 F.2d at 484; Ross, 151 F.R.D. at 567.

This Court finds this to be one of those exceptional

circumstances where Rule 11 sanctions are appropriate. No

objectively reasonable attorney, after even limited inquiry,

could have found the Third Party Complaint against Carpenters

Health to be well-grounded in fact and warranted by existing law. 

As explained in our Order dated April 26, 2005, Defendant’s fraud

claim against Carpenters Health was inadequately pled, not

grounded in fact, time-barred, and utterly irrelevant to the

pending malpractice action against him. Furthermore, even the

most limited investigation would have revealed that Defendant had

no standing to raise such a claim. Finally, Mr. Berg never

sought relief from the Carpenters Health judgment before Judge

Robreno on the basis of fraud, and instead waited three years to

raise this claim in defense of a malpractice action. Taken

together, these facts indicate that Mr. Berg failed to conduct a

reasonable inquiry before filing his Third Party Complaint. 

Furthermore, the history of the present action (specifically,

Defendant’s failure to respond to the Third Party Defendants’

Motion for Summary Judgment or to the instant Motion for Rule 11

Sanctions) suggests to this Court that Mr. Berg may have had an
7

improper purpose in filing his Third Party Complaint. Were the

Third Party Complaint motivated by a good-faith intent to present

legitimate arguments supported by fact and law, rather than a

desire to harass Carpenters Health or delay litigation, this

Court would have expected some substantive response to the Third

Party Defendants’ challenges. Having not even extended the

courtesy of responding to the instant Motion for Sanctions or

otherwise defending his position, Mr. Berg leaves this Court with

no option but to impose Rule 11 sanctions.

An appropriate Order follows.
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD HOLSWORTH and ELIZABETH : CIVIL ACTION

HOLSWORTH, :

: 05-1116

Plaintiffs :

:

v. : 

:

PHILIP J. BERG, ESQ., :

:

Defendant :

ORDER

AND NOW, this 2nd day of June, 2005, upon consideration of

the Motion for Rule 11 Sanctions brought by Third Party

Defendants Carpenters Health and Welfare Fund of Philadelphia and

Vicinity, Carpenters Pension and Annuity Fund of Philadelphia and

Vicinity, Carpenters Savings Fund of Philadelphia and Vicinity,

Carpenters Joint Apprentice Committee, National Apprenticeship

and Health and Safety Fund, Metropolitan Regional Council of

Philadelphia and Vicinity, United Brotherhood of Carpenters and

Joiners of America, and Carpenters Political Action Committee of

Philadelphia and Vicinity (Doc. No. 7), it is hereby ORDERED that

the Motion is GRANTED. Pursuant to Rule 11 of the Federal Rules

of Civil Procedure, it is FURTHER ORDERED that:

(1) Judgment is entered against Defendant Philip J. Berg and

in favor of Third Party Defendants in the amount of $10,668.78,

representing the attorneys’ fees and costs incurred by Third

Party Defendants through May 9, 2005;

(2) Within ninety (90) days of the date of this Order,
Defendant Philip J. Berg shall complete six (6) credits of ethics

courses certified by the Pennsylvania Board of Continuing Legal

Education. Immediately thereafter, Defendant shall file a

written certification with this Court or the court which, on that

date, may have jurisdiction over this matter, verifying that he

has completed said course work;

(3) The Clerk of the Court shall forward a copy of this

Order and the accompanying Memorandum to the:

Pennsylvania Bar Association

Committee on Legal Ethics and Professional Responsibility

c/o Louise Lamoreaux

100 South Street

P.O. Box 186

Harrisburg, PA 17108-0186

in order that the Committee may investigate claims against Mr.

Berg under Rule 3.1 of the Pennsylvania Rules of Professional

Conduct;

(4) The Third Party Defendants may apply to this Court or to

any court in which enforcement of this Order is sought for any

further reasonable attorneys’ fees and costs they incur in the

collection and enforcement of this Order;

(5) This Order is enforceable, without duplication, by one

or more of the Third Party Defendants, jointly or severally, or

their agents.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.