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 13, 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 American legal system.

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. Even after default judgment was entered against his

client, Plaintiff Holsworth, in November of 2001, Mr. Berg

remained silent. 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

and eleven months after the suit was first filed against his

client, Mr. Berg broke his silence 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
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incremental $4,762.49, 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’s Third Party

claim lacked standing, any 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 4

years after the ERISA suit was filed, Mr. Berg never raised any

allegations of fraud – or any other legal argument - 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). Filing a complaint completely devoid of any basis in

fact or law, as would be apparent to any reasonable attorney

after the slightest inquiry, 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 complaint may be 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

forgiven due to “extenuating circumstances” such as health
5

It is impossible to include a proper pinpoint citation because the

document Mr. Berg filed with this Court lacks page numbering of any kind. 

6

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 Court[‘]s initial

decision is based upon untimely responses to an adversary’s

motion.” Def.’s Mot. Reconsideration (June 16, 2005).5

 

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). A motion to reconsider cannot be

brought merely to request that the court “rethink what [it] had
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already thought through.” Glendon Energy Co. v. Borough of

Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993).

Discussion

In no way, shape, or form do the “extenuating circumstances”

proffered by Mr. Berg even begin to justify, excuse, or explain

his unprofessional and unethical course of conduct throughout

this matter. These transparent excuses are not only patently

insufficient to meet the legal standard for a motion for

reconsideration, they are insulting to this Court and demeaning

to the legal profession. This type of conduct from Mr. Berg, or

any other attorney practicing before this Court, is unacceptable

and will not be tolerated.

In claiming that this Court should reconsider its Order

imposing sanctions because the decision was based merely on

“untimely responses,” 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 irresponsible decision to file a frivolous Third

Party Complaint which was utterly barren of any scintilla of

legal principles. The complaint was intended to harass

Carpenters Health and the Holsworth’s, as well as to delay and

disrupt the administration of justice. In addition to having no
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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. 

The untimeliness of Mr. Berg’s Third Party complaint was not the

central factor in this Court’s decision to impose sanctions, it

merely served as yet another example of Mr. Berg’s continuing

display of disrespect for this Court and flagrant neglect of his

professional duties. 

None of the excuses or attempts to dodge responsibility

contained in the instant motion are adequate to counteract the

laundry list of unethical actions that drove this Court to impose

sanctions on Mr. Berg. While insincerely accepting

responsibility for his actions, Mr. Berg blames his associate for

giving him bad advice and somehow convinces himself that fault

should lie at the feet of opposing counsel for failing to extend

him a seemingly never-ending string of professional courtesies. 

Also, Mr. Berg’s assertion that opposing counsel purposely

escalated legal fees is laughable. 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, or any other, of extenuating circumstances. Only

after the imposition of sanctions awoke Mr. Berg from his slumber
9

did he put forth tales of health problems, European adventures,

and staffing and financial difficulties. 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. 

Mr. Berg’s conduct 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, are an

enormous waste of judicial time and resources that this Court

cannot, in good conscience, allow to go unpunished. Accordingly,

Defendant 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

JOYNER, J. July 13, 2005

AND NOW, this 13th 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.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.