1

(1) Holsworth v. Berg, No. 05-1116, 2005 U.S. Dist. LEXIS 7288, 2005

WL 984193 (E.D. Pa. 2005) (Granting Motion for Summary Judgment on Mr. Berg’s

Motion to Join Carpenters Health as a Third Party Defendant); and 

 (2) Holsworth v. Berg, No. 05-1116, 2005 U.S. Dist. LEXIS 10972, 2005

WL 1334567 (E.D. Pa. 2005) (Granting Carpenters Health’s Motion for Rule 11

Sanctions against Mr. Berg).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD HOLSWORTH, : CIVIL ACTION

ELIZABETH HOLSWORTH :

 : 05-1116

Plaintiffs, :

:

v. :

:

PHILIP J. BERG, ESQ., :

:

Defendant. :

MEMORANDUM AND ORDER

JOYNER, J. July 26, 2005

Via the instant motion, Defendant Philip J. Berg, Esquire,

moves for reconsideration of this Court’s Order dated June 3,

2005 imposing sanctions on Defendant pursuant to Rule 11 of the

Federal Rules of Civil Procedure. For the following reasons,

Defendant’s motion shall be denied.

Factual Background

The facts of this case have been clearly articulated in the

two previous Orders issued by this Court relating to this

matter.1 The details of Mr. Berg’s course of conduct will be

recounted once again in this memorandum, however, so as to remove

any modicum of doubt that imposing sanctions in this situation is
2

“Carpenters Health” is a collection of organizations and pension funds

including: 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. 

2

not only entirely appropriate, but mandatory in order to preserve

the integrity of this Court and the legal profession.

The current legal malpractice action against Defendant Berg

has its roots in an Employee Retirement Income Security Act

(“ERISA”) claim brought in May 2001 by Carpenters Health2 against

Mr. Berg’s clients, Plaintiff Richard Holsworth and his company,

Richard’s General Contracting. Mr. Berg neglected to file a

response to the claim or provide any legal defense whatsoever for

his client. Default was entered against Mr. Holsworth, in

November of 2001, and in February of 2002, default judgment in

the amount of $4,726.17 was granted in favor of Carpenters

Health. In April of 2002, two months after default judgment was

granted, five months after default was entered, and eleven months

after the suit was first filed against his client, Mr. Berg

finally took action by filing a Petition to Strike Off Judgment

or to Open Default Judgment and Stay Execution. This petition

was denied on its merits on July 2, 2002 and judgment was entered

for the default judgment amount plus interest and costs, totaling

$5,380.82. Carpenters Health then moved for supplemental

judgment in January of 2003 to recover an additional $4,762.49,
3

which represented attorney’s fees and costs incurred while

defending Mr. Berg’s April 2002 petition and collecting the

judgment. Mr. Berg failed to respond to that motion as well, and

supplemental judgment was granted in August of 2003. See

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

01-2338 (E.D. Pa. 2001).

Plaintiffs Richard and Elizabeth Holsworth, Mr. Berg’s

clients in the aforementioned ERISA case, filed a malpractice

suit against Defendant Berg in February of 2004 in the

Philadelphia County Court of Common Pleas. Plaintiffs assert

that Defendant Berg negligently failed to legally represent them

in the Carpenters Health case. One year later, on February 9,

2005, Defendant Berg moved to join the plaintiff in the ERISA

case, Carpenters Health, as a Third Party Defendant in the

malpractice claim, and sought damages in the amounts of

$12,658.57 and $9,488.66 plus interest, attorney fees, and costs. 

Mr. Berg claimed that the suit filed by Carpenters Health in

2001, which led to the malpractice claim against him, was “a

fraud upon the court and a fraudulent taking from the

Holsworth[s].” Berg Complaint, ¶ 17. Plaintiffs’ malpractice

action was removed to this Court on March 9, 2005.

Carpenters Health moved for summary judgment on Mr. Berg’s

Third Party Complaint on March 30, 2005. After Mr. Berg again

failed to respond, his complaint was dismissed with prejudice on
3

Mr. Berg’s response to the motion for sanctions was due no later than

May 26, 2005. In a phone call to chambers on May 31, Mr. Berg’s assistant

requested permission to move for an extension of the response deadline. She

noted that Mr. Berg had been out of town for two or three weeks and would not

be returning until June 9. Although the deadline for a response had already

passed, this Court agreed to consider an untimely motion for an extension. 

Despite the assurances of Mr. Berg’s assistant that a motion would be filed by

June 1, no such motion was ever received by this Court. Instead, a letter

signed by Mr. Berg’s assistant was faxed to chambers on June 2, requesting

that the deadline be extended until June 27. In light of Mr. Berg’s

persistent and repeated neglect of his professional obligations, this Court

4

April 26, 2005. See Holsworth v. Berg, No. 05-1116, 2005 U.S.

Dist. LEXIS 7288, 2005 WL 984193 (E.D. Pa. 2005). This Court

found that it was “wholly unnecessary” to entertain the facts of

the ERISA case and that it was “abundantly clear” that Carpenters

Health was entitled to a judgment as a matter of law. Id. at 6. 

Citing his “highly frivolous” defense strategy in this

malpractice suit, this Court ruled that Mr. Berg lacked standing

to bring his Third Party claim and that the claim had absolutely

no substantive basis in fact or law, and was also time-barred. 

Id. at 7-9. Questioning Mr. Berg’s motive in filing his claim,

this Court pointed out that in the almost four years after the

ERISA suit was filed, Mr. Berg never raised any allegations of

fraud until he was faced with a malpractice claim. Id. at 8-10. 

In addition to dismissing Mr. Berg’s Third Party Complaint

with prejudice, this Court retained jurisdiction for thirty days

to allow Carpenters Health to file a Motion for Rule 11

Sanctions, id. at 11-12, which Carpenters Health did on May 9,

2005. Mr. Berg continued his trend of unprofessional conduct by,

once again, failing to file a timely response.3 
was not inclined to permit Mr. Berg to further delay the review of Carpenters

Health’s ripe Motion for Rule 11 Sanctions. 

4

Sanctions imposed on Mr. Berg include:

(1) Damages of $10,668.78 for attorney’s fees and costs incurred by

Carpenters Health through May 9, 2005;

(2) Mr. Berg must complete six (6) credits of ethics courses certified

by the Pennsylvania Board of Continuing Legal Education;

(3) Further investigation of this matter by the Pennsylvania Bar

Association’s Committee on Legal Ethics and Professional Responsibility;

(4) Carpenters Health may petition for additional legal fees or costs in

association with the collection and enforcement of this matter.

5

On June 3, 2005, this Court granted Carpenters Health’s

motion and imposed sanctions on Mr. Berg.4 Holsworth v. Berg,

No. 05-1116, 2005 U.S. Dist. LEXIS 10972, 2005 WL 1334567 (E.D.

Pa. 2005). This Court found that Mr. Berg filed a complaint

completely devoid of any basis in fact or law, that such

inadequacy would be apparent to any reasonable attorney after the

slightest inquiry, and that Mr. Berg’s improper filing qualified

as an exceptional circumstance warranting Rule 11 sanctions. Id.

at 6. Reiterating the sentiments of its previous Order, this

Court stated that Mr. Berg’s claim was “inadequately pled, not

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

pending malpractice action against him.” Id. Citing Mr. Berg’s

history of failing to file timely responses, this Court indicated

that Mr. Berg’s Third Party complaint might have been motivated

by an improper purpose. Id. at 6-7.

The instant Motion for Reconsideration was timely filed by

Mr. Berg on June 16, 2005. Mr. Berg contends that, in the

interest of justice, the sanctions imposed on him should be
6

forgiven due to “extenuating circumstances” such as health

problems, a three-week European business trip, and staffing and

financial difficulties. Additionally, Mr. Berg claims that

counsel for Carpenters Health was aware of these circumstances

and used this information to their advantage by refusing to

extend Mr. Berg “professional courtesies.” Mr. Berg also blames

opposing counsel for purposely escalating attorneys fees. In his

motion, Mr. Berg argues that a motion for reconsideration can be

granted “in the interest of justice” when “the Courts [sic]

initial decision is based upon untimely responses to an

adversary’s motion.” Def.’s Mot. Reconsideration (June 16, 2005).

The present motion also contains details of failed

settlement discussions between Mr. Berg and Carpenters Health

that occurred in late May 2005, prior to this Court’s order

imposing sanctions. Mr. Berg, recognizing the frivolous nature

of his complaint and using his building as collateral, apologized

and offered to pay $8,000 in exchange for Carpenters Health

withdrawing their Motion for Rule 11 Sanctions against him. On

May 20, 2005, Carpenters Health requested that Mr. Berg

consummate the agreement by sending a certified check in the

amount of $3,200 no later than May 27, 2005. Because Mr. Berg

was in Europe at the time, he requested that the deadline be

extended until he returned on June 7, 2005. According to an email sent by Mr. Berg’s assistant, counsel for Carpenters Health
7

felt that Mr. Berg had more than enough time and refused to

extend the deadline. Id. at App. A-B. No settlement between the

parties was ever reached.

Standard of Review

The purpose of a motion for reconsideration is to correct

manifest errors of law or to present newly discovered evidence. 

Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). A

motion to reconsider must be based on one of three grounds: (1)

the discovery of evidence that was unavailable at the time of the

previous motion; (2) an intervening change in controlling law; or

(3) the need to correct an error of law or to prevent a manifest

injustice. Hartford Fire Ins. Co. v. Huls Am., Inc., 921 F. Supp.

278, 279 (E.D. Pa. 1995). Mere dissatisfaction with the Court’s

ruling is not a proper basis for reconsideration. Evans v. U.S.,

173 F. Supp. 2d 334, 335 (E.D. Pa. 2001).

In order to show a manifest injustice has occurred, the

moving party must base its motion on arguments that have been

previously raised but overlooked by the Court. U.S. v. Jasin,

292 F. Supp. 2d 670, 676 (E.D. Pa. 2003). A motion for

reconsideration should not raise additional arguments that the

movant “could have made but neglected to make prior to judgment.” 

Id. at 677. In addition, evidence that is not newly discovered

and was previously available to be considered cannot be the basis
8

of a motion for reconsideration. Id. at 692 (citing Pavlik v.

Lane Ltd., 135 F.3d 876, 882 (3d Cir. 1998)). 

Discussion

Mr. Berg seeks reconsideration on the grounds of injustice. 

While preventing a manifest injustice is a legitimate legal

ground for reconsideration, Mr. Berg has failed to demonstrate

that imposition of sanctions in this case would be unjust. On

the contrary, a manifest injustice would be done if this Court

allowed Mr. Berg to engage in this course of conduct and escape

unscathed. Mr. Berg sets forth “reasons” for his frivolous

actions, but in no way do the “extenuating circumstances”

proffered by Mr. Berg even begin to justify his unprofessional

course of conduct throughout these proceedings. Not only are Mr.

Berg’s excuses patently insufficient to meet the legal standard

for a motion for reconsideration, but they are also insulting to

this Court and demeaning to the legal profession.

Mr. Berg, in his Motion for Reconsideration, first maintains

that this Court’s Order imposing sanctions was based merely on

untimely responses, and contends that reconsideration is

appropriate because his untimeliness was somehow justified. In

doing so, Mr. Berg, similar to his Third Party Complaint, makes

an argument that is entirely irrelevant to the matter at hand. 

Sanctions were imposed on Mr. Berg as a direct result of his
9

irresponsible decision to file a frivolous Third Party Complaint

which was utterly barren of any legitimate legal argument. In

addition to having no standing to bring suit against Carpenters

Health, Mr. Berg failed to conduct even a minimally reasonable

inquiry before filing his complaint and made no good faith

argument based in fact or law. Furthermore, this Court found

that there was no justifiable reason for filing such a complaint,

if not to harass Carpenters Health and the Holsworth’s, as well

as to delay and disrupt the administration of justice. 

Mr. Berg fails to challenge this Court’s decision on its

merits or offer any arguments for why sanctions on these grounds

are inappropriate. Instead, Mr. Berg rests his entire motion for

reconsideration on a set of feeble explanations for his

untimeliness in responding to previous motions. The untimeliness

of Mr. Berg’s Third Party complaint was not the central factor in

this Court’s decision to impose sanctions, but merely served as

yet another example of Mr. Berg’s continuing display of

disrespect for this Court and neglect of his professional duties. 

None of the excuses contained in the instant motion are

adequate to counteract the laundry list of improprieties that

drove this Court to impose sanctions on Mr. Berg. While Mr. Berg

purports to accept responsibility for his actions, he then places
5

As Mr. Berg is the only practicing attorney in his firm, the Court is

unclear to whom Mr. Berg is referring in Appendix A of his motion, an e-mail

to opposing counsel discussing a settlement.

10

blame on his “associate”5 for giving him bad advice and further

faults opposing counsel for failing to extend him a seemingly

never-ending string of professional courtesies. Mr. Berg’s

further assertion that opposing counsel purposely escalated legal

fees is meritless. The genesis of these entire proceedings was

the baseless Third Party Complaint filed by Mr. Berg himself in

order to delay a potentially meritorious malpractice lawsuit

against him.

At no time prior to the present motion did Mr. Berg inform

this Court of any extenuating circumstances. Mr. Berg was given

ample opportunity, including this Court’s willingness to

entertain an untimely motion for an extension, to respond to

Carpenters Health’s motion for sanctions with any argument or

evidence he wished. Only after the imposition of sanctions did

Mr. Berg see fit to inform this Court of his health problems,

European travel, and staffing and financial difficulties as

justification for his actions. It is not the responsibility of

this Court to proactively seek out Mr. Berg and solicit reasons

for the continued dereliction of his professional obligations. 

As a practicing attorney, Mr. Berg retains the duty to conduct

himself with dignity and attend to his cases no matter the

circumstances. An attorney, well or ill, has a duty to represent
11

his client competently and shall not “neglect a legal matter

entrusted to him.” Vannoni v. TSO, 120 F.R.D 501, 503 (E.D. Pa.

1988) (citing Pa. Code of Prof. Resp. Rule 6-101(A)(3)). 

 Mr. Berg’s conduct in filing a frivolous Third Party

complaint and failing to offer any remotely legitimate legal

argument in support of his position is the reason Rule 11

sanctions were implemented. Other attorneys should look to Mr.

Berg’s actions as a blueprint for what not to do when attempting

to effectively and honorably perform the duties of the legal

profession. This Court has grown weary of Mr. Berg’s continuous

and brazen disrespect toward this Court and his own clients. Mr.

Berg’s actions, including the instant motion for reconsideration,

serve to divert judicial resources from legitimate matters, and

this Court cannot, in good conscience, allow this conduct to go

unpunished. Accordingly, Mr. Berg’s Motion for Reconsideration

of this Court’s decision to impose Rule 11 sanctions is denied. 

 
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD HOLSWORTH, : CIVIL ACTION

ELIZABETH HOLSWORTH :

 : 05-1116

Plaintiffs, :

:

v. :

:

PHILIP J. BERG, ESQ., :

:

Defendant. :

ORDER

AND NOW, this 26th day of July, 2005, upon consideration of

Defendant Philip J. Berg’s Motion for Reconsideration (Doc. No.

9) of this Court’s Order dated June 3, 2005 (Doc. No. 8), and all

responses thereto (Doc. No. 10), it is HEREBY ORDERED that

Defendant’s Motion is DENIED.

In accordance with this Court’s Order dated April 26, 2005

(Doc. No. 5), upon the final disposition of Plaintiffs’ Motion

for Rule 11 Sanctions, this Court lacks any basis for continued

jurisdiction. Therefore, it is FURTHER ORDERED that this action

be REMANDED to the Court of Common Pleas of Philadelphia County

for further proceedings.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.