Com. v. Magee, B. ( 2017 )

J-S34030-17
2017 PA Super 414COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
BRIAN THOMAS MAGEE, JR.,
APPEAL OF: SCHINDLER LAW GROUP, No. 3459 EDA 2016
LLC, THOMAS K. SCHINDLER, ESQUIRE,
AND JOHN H. PAVLOFF, ESQUIRE
Appeal from the Order Dated October 19, 2016
In the Court of Common Pleas of Chester County
Criminal Division at Nos: CP-15-CR-0003719-2015
CP-15-CR-0003720-2015
CP-15-CR-0003721-2015
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
CONCURRING AND DISSENTING OPINION BY PLATT, J.:
FILED DECEMBER 27, 2017
I respectfully concur in part and dissent in part. Although I agree with
the learned Majority that the trial judge did not abuse her discretion in denying
Appellants’ motion to withdraw from representation of defendant Magee,1 I
conclude that Appellants failed to meet their burden to establish that their
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*
Retired Senior Judge assigned to the Superior Court.
1
(See Majority Opinion, at 20-22).
J-S34030-17
motion was appealable as of right. Therefore, this Court lacks jurisdiction to
consider their appeal. Accordingly, I would quash the appeal.
Under the collateral order doctrine as set forth in Pennsylvania Rule of
Appellate Procedure 313, “an order is immediately appealable if (1) it is
separable from and collateral to the main cause of action; (2) the right
involved is too important to be denied review; and (3) the question presented
is such that if review is postponed until final judgment in the case, the claimed
right will be irreparably lost.” In re N.B., 817 A.2d 530, 534 (Pa. Super.
2003) (citing Pugar v. Greco, 394 A.2d 542, 545 (Pa. 1978)) (footnote
omitted); see Pa.R.A.P. 313.
The collateral order doctrine is a specialized, practical application
of the general rule that only final orders are appealable as of right.
Thus, Rule 313 must be interpreted narrowly, and the
requirements for an appealable collateral order remain stringent
in order to prevent undue corrosion of the final order rule. To
that end, each prong of the collateral order doctrine must be
clearly present before an order may be considered collateral.
Melvin v. Doe, 836 A.2d 42, 46–47 (Pa. 2003) (citation omitted).
I would find that orders denying motions to withdraw are neither
“separable from [nor] collateral to the main cause of action” when the filing
of such motion defeats an imminent trial listing.2 Pa.R.A.P. 313(b). Our Rules
of Criminal Procedure vest the trial court with discretion whether to permit
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2
I believe the learned Majority’s expectation that counsel will not make
withdrawal motions in bad faith is naively optimistic and not a proper
foundation for the establishment of a general prophylactic rule. (See Maj.
Op., at 12 n.9).
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counsel for a defendant to withdraw his or her appearance, based in part on
the delay such withdrawal would cause. See Pa.R.Crim.P. 120(B)(1); see
also id. at Comment (“The court must make a determination of the status of
a case before permitting counsel to withdraw.”). An absolute right to appeal,
and the ensuing delay created by such appeal, would negate the trial court’s
prerogative to manage the business in its court, and would impose a
significant delay in resolving the main cause of action.
The instant case is illustrative of how the right to an appeal would allow
counsel to negate the trial court’s decision and delay an impending trial. Here,
Appellants (after obtaining modification of defendant’s bail permitting his
release to assist in his defense) obtained seven continuances of trial. On
August 17, 2016, the trial court issued notice of attachment for trial
commencing October 31, 2016. Appellants, claiming to have been retained
to represent defendant up to, but not including trial, filed a motion to
withdraw two weeks prior to the date trial was to commence. The trial
court denied the motion to withdraw, finding that Appellants had created their
own emergency and “failed to take steps to avoid the foreseeable prejudice of
delaying trial, and delaying the ability of his client to employ other counsel
prior to the jury trial date[.]” (Trial Court Opinion, 11/16/16, at 5; see also
Maj. Op., at 14). Simply by filing an appeal of the trial court’s motion,
however, Appellants have been able to obtain a thirteen-month delay of
trial during the pendency of this appeal.
-3-
J-S34030-17
Therefore, I would conclude that the order in this case denying
Appellants’ petition to withdraw is not separable from and collateral to the
main cause of action, and thus, is not a collateral order appealable as of right
under Rule 313. See Melvin, supra at 46-17; In re N.B., supra at 534.
Consequently, I would quash this appeal as interlocutory.
Accordingly, I respectfully concur in part and dissent in part.
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