In Re: Est. of M. Bortz Appeal of: Menges, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF MARGARET BORTZ, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: MATTHEW D. MENGES,
ESQUIRE
No. 1428 MDA 2014
Appeal from the Order July 29, 2014
In the Court of Common Pleas of Lancaster County
Orphans' Court at No(s): 36-06-1861
BEFORE: PANELLA, J., OLSON J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED MAY 27, 2015
Appellant Matthew D. Menges, Esquire, appeals from the order entered
by the Court of Common Pleas of Lancaster County, Orphans’ Court, denying
his motion to withdraw as counsel for Joanna Fasig, daughter of Decedent
Margaret Bortz. We reverse and remand.
The relevant facts are as follows. After Richard A. Bortz, Sr. was
appointed Administrator of Decedent’s estate, Fasig retained Menges in
order to obtain an accounting from Bortz. In the written fee agreement
between Menges and Fasig, Menges reserved the right “to terminate the
relationship if you insist upon pursuing or … engage in a course of conduct
that we consider repugnant or imprudent or with which we have a
fundamental disagreement.” Appellant’s Brief at 11.
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After the accounting was obtained, Menges filed objections on behalf
of Fasig. Bortz died before the objections were heard, and Fasig was then
appointed Administratrix D.B.N. of her mother’s estate. After Fasig’s sister,
Susan Bortz Mays (“Mays”), appealed Fasig’s appointment, the trial court
appointed Dana Panagopoulos, Esq., an independent, third-party, to serve
as Administratrix Pro Tem and ordered Fasig to file an accounting from her
tenure as Administratrix. After Fasig filed her accounting, Mays and
Panagopoulos filed objections thereto. The objections included an objection
to the fees paid to Attorney Menges as counsel to the estate. Bridget M.
Whitley, Esq., who had represented Richard Bortz, Sr., also represented
Mays. Whitley filed, on her own behalf, a motion to dismiss the objections
filed by Fasig based on the failure to join an indispensable party, specifically
Richard Bortz’s estate. The trial court denied Whitley’s motion, and ordered
that all proceedings in the estate be held in abeyance until an Administrator
is appointed for Bortz, Sr.’s estate.
After the court stayed the proceedings, Fasig wrote directly to Judge
Jay J. Hoberg asking for “re-consideration” of the trial court’s stay order. As
a result of that ex parte communication, Menges filed a motion to withdraw
from representing Fasig, stating that (1) he had directed her several times
not to have ex parte communications with the judge; (2) her letter, which
was subsequently sent by the court to all counsel, divulged attorney-client
conversations as well as contents of Fasig’s testimony which had, up to that
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point, been undisclosed; and (3) Fasig’s actions, with which he
fundamentally disagreed, provided a reason explicitly contained within their
written fee agreement for him to withdraw from representation. The trial
court denied the motion, and Menges timely appealed to this Court. The trial
court submitted an “Opinion Sur Appeal.”1
Menges raises the following issues for our review:
a. Is the lower court’s order appealable as a collateral order
under Pa.R.A.P. 313(a)?
b. Should Appellant be allowed to withdraw as counsel for a
party who has disregarded his advice and engaged in ex parte
communication directly with the lower court?
Menges first argues that the order denying his motion to withdraw is a
collateral order as defined in Pa.R.A.P. 313(b) and is, thus, properly before
this Court. We agree.
Generally, an appellate court's jurisdiction extends only to review of
final orders. See Pa.R.A.P. 341 (“[A]n appeal may be taken as of right from
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1
After Menges filed his notice of appeal, the trial court entered an order
directing Menges to file a Pa.R.A.P. 1925(b) statement. Menges did not do
so. Generally, failure to timely comply with a trial court's order requiring the
filing of a 1925(b) statement results in the waiver of all issues on appeal.
Pa.R.A.P.1925(b)(4); see also Commonwealth v. Hill, 16 A.3d 484 (Pa.
2011). However, it is well-settled that the court clerk’s office has a
mandatory duty to furnish copies of the Rule 1925(b) order to each party or
to his or her attorney. Commonwealth v. Hess, 810 A.2d 1249, 1252 (Pa.
2002); Pa.R.C.P. 236(b). No waiver will be found when a clerk of courts fails
to uphold that duty. Hess, supra at 1255. Here, the trial court’s docket
contains no entry indicating that the court clerk provided notice of the trial
court’s Rule 1925(b) order. We thus decline to find waiver. Based on the
trial court’s Opinion Sur Appeal, we will address the merits.
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any final order.”). Final orders are those which either (1) dispose of all
claims and all parties, (2) are explicitly defined as final orders by statute, or
(3) are certified as final orders by the trial court or other reviewing body.
Rae v. Pennsylvania Funeral Directors Ass’n, 977 A.2d 1121, 1124-25
(Pa. 2009), citing Rule 341. The collateral order doctrine, however, permits
appeal from a narrow class of orders which address claims of rights
“separable from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause of action
itself to require that appellate consideration be deferred until the whole case
is adjudicated.” Id. at 1125, quoting Cohen v. Beneficial Loan Co., 337
U.S. 541, 546 (1949).
In 1992, the collateral order doctrine was codified in Pa.R.A.P. 313
which provides:
(a) General rule. An appeal may be taken as of right from a
collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order [1] separable
from and collateral to the main cause of action [2] where
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 claim will
be irreparably lost.
Pa.R.A.P. 313 . See Rae, supra at 1124-25 (Pa. 2009) (noting that all three
factors of Rule 313(b) must be met in order to conclude the order at issue is
a collateral order).
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Prior to the codification of the collateral order doctrine, our Supreme
Court held that the denial of an attorney’s motion to withdraw is
immediately appealable, concluding
Even though the often-used rationale for appealability that
appellant has been put ‘out-of-court’ is particularly inapt in the
instant situation where appellant has actually been forced into
court, it is apparent that as to him, the order is an absolute
denial of the relief sought, and could never be raised at any
other time if it were not appealable now.
Brown v. Pennsylvania R.R., 255 A.2d 554, 555 n.1 (Pa. 1969). Compare
Gerold v. Vehling, 89 A.3d 767 (Pa. Cmwlth. 2014) (holding that an order
granting an attorney’s right to withdraw is an appealable collateral order).
Here, all three factors of Rule 313(b) are present in the trial court’s
order denying Menges’s motion to withdraw his representation. The order is
separate from and collateral to the substantive issues in the underlying
cause of action, and implicates a right that is too important to be denied
review. Although one of the objections filed in the underlying action
challenges the fees paid to Menges as an attorney for the estate, a review of
the denial of Menges’s withdrawal motion does not require this Court to
consider the merits of that objection or any other aspect of the underlying
action. With respect to the third prong, we agree with Menges that once a
final judgment is reached in the underlying action, his right to appeal the
order denying his withdrawal will become moot. We, thus, conclude that the
denial of Menges’s motion to withdraw as counsel for Fasig is an appealable
collateral order pursuant to Pa.R.A.P. 313; Brown, supra.
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Regarding the merits of the appeal, Menges avers that based on the
Pennsylvania Rules of Professional Conduct, the written fee agreement he
had with Fasig, and the nature of their relationship being “mutually
voluntary,” the trial court should have granted his motion to withdraw.
Appellant’s Brief at 13. Menges notes that in agreeing to represent Fasig, he
“reserved the right ‘to terminate the relationship if you insist upon pursuing
or engage in a course of conduct that we consider repugnant or imprudent
or with which we have a fundamental disagreement.’” Appellant’s Brief at
11. Menges avers that Fasig will not be “materially adversely” effected by
his withdrawal and, pursuant to the Rules of Professional Conduct, he “may
withdraw without any further justification.” Id. at 13.
The Pennsylvania Rules of Professional Conduct provide that “a lawyer
may withdraw from representing a client if ... withdrawal can be
accomplished without material adverse effect on the interests of the client …
or … other good cause for withdrawal exists.” Rule 1.16(b)(1) and (7). The
matter of attorney withdrawal is “traditionally within the discretion of the
trial court.” Commonwealth v. Scheps, 523 A.2d 363, 368 (Pa. Super.
1987). However,
[t]here are no prophylactic rules which exist when determining
whether a denial or withdrawal amounts to an abuse of
discretion. Each case must be decided by balancing the
competing interest giving due regard to the facts presented. As
in the case of the denial for a petition for a continuance to obtain
new counsel, there are no mechanical tests for deciding when a
denial of a petition to withdraw as counsel is so arbitrary so as to
be an abuse of discretion. The answer must be found in the
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circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.
Id. (citations omitted).
Here, the trial court was informed by Menges that, essentially, there
had been a breakdown in the attorney-client relationship such that he would
not be able to represent Fasig any longer. In denying Menges’s motion to
withdraw, the trial court stated:
To allow Attorney Menges to withdraw from this matter would
have a material adverse effect on the interest of the client and
upon the administration of this Estate which has been open for
eight (8) years. … The only hope of resolution for this protracted
and adversarial case is if all counsel, who are well versed in the
facts and nuances of this matter remain in place and either work
towards a settlement or get it appropriately postured before the
Court for a hearing. To allow Attorney Menges to walk away
would be a grave injustice to Ms. Fasig. Furthermore, with the
objections filed challenging Attorney Menges’ fees, he continues
to be an integral part of this litigation.
Trial Court Opinion Sur Appeal at 5-6.
We do not agree with the trial court that Menges’s withdrawal will have
a material adverse effect or be “a grave injustice” to Fasig. Id. With the
case in its current state of suspension, Fasig has time to find another
attorney. Our cursory review of the record in the underlying litigation
indicates that although the litigation might be “adversarial and protracted,”
the issues are not complex. Any new attorney will be able to familiarize him
or herself quickly with “the facts and nuances” of the case to “either work
towards a settlement or get it appropriately postured before the Court for a
hearing.” Id. Under the circumstances present in this case, and particularly
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with respect to Menges’s “fundamental disagreement” with his client’s
actions, and the existence of the written fee agreement and the Rules of
Professional Conduct, we conclude that the trial court abused its discretion in
denying the motion to withdraw. We, thus, direct the trial court to enter an
order granting Menges’s motion to withdraw.
Order reversed. Case remanded for further proceedings in accordance
with this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2015
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