Tucker, S. v. Tucker, J. ( 2017 )

J-S25004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUSAN L. TUCKER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JACQUELINE TUCKER,
Appellee No. 2049 EDA 2016
Appeal from the Order Entered June 24, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2015-25636
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 22, 2017
Susan L. Tucker (Plaintiff) appeals from the June 24, 2016 order that
granted Jacqueline Tucker’s (Defendant) motion to strike the entry of
appearance of John J. O’Brien, III, Esq., as counsel for Plaintiff. The order
also awarded sanctions against Attorney O’Brien in favor of Defendant for
$1,000 and attorney’s fees of $490.00. We quash this appeal as
interlocutory.
The trial court set forth the factual and procedural history of this case
as follows:
On September 23, 2015, Attorney John O’Brien III filed
this lawsuit on behalf of Plaintiff, Susan Tucker, against her
mother, Jacqueline Tucker. Plaintiff seeks to recover for
damages allegedly arising from a family business dispute. On
October 22, 2015, Defendant filed a Motion to Disqualify
Attorney John O’Brien as counsel for Plaintiff. This Motion was
based upon Mr. O’Brien's representation of the Defendant,
Jacqueline Tucker, in lawsuits in the Bahamas, in Florida and
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Delaware County, Pennsylvania. Defendant Jacqueline Tucker
argued that Mr. O’Brien’s representation of Susan Tucker in a
lawsuit she brought against Jacqueline Tucker, whom Mr. O’Brien
represented in three lawsuits, was in violation of Rule 1.7 of the
Professional Rules of Conduct. After briefing and argument, the
Honorable Thomas Branca entered the Order dated February 23,
2016[,] disqualifying Mr. O’Brien from representing Plaintiff in
the instant lawsuit. No appeal was taken from this Order. On
April 21, 2016, Mr. O’Brien re-entered the case on behalf of
Plaintiff, Susan Tucker, in this lawsuit, without court approval.
On May 6, 2016, Defendant filed a Motion to Strike Mr. O’Brien’s
Entry of Appearance.
The Motion to Strike at issue in this appeal was filed on
May 6, 2016. A Rule to Show Cause was issued requiring Susan
Tucker to “show cause why the moving party is not entitled to
the relief requested by filing an answer in the form of a written
response at the Office of the Prothonotary on or before the 13th
day of June, 2016.” Defendant’s counsel filed an Affidavit of
Service certifying that the Rule to Show Cause was served on
Plaintiff on May 17, 201[6]. No response was filed on or before
the Rule Return date of June 13, 2016. Therefore, the
undersigned as Civil Equity Signing Judge signed the Order
granting the Motion in accordance with Montgomery County local
rules of procedure, and entered the proposed Order attached to
the Motion to Strike.
Plaintiff filed an untimely response to the Motion to Strike
on June 15, 2016, after the rule return date. No Motion for
Reconsideration of the Order granting the Motion to Strike was
filed. Nor was any explanation given as to why a timely
response was not made. Rather, Plaintiff filed a Notice of Appeal
on July 1, 2016.
Trial Court Opinion (TCO), 8/25/16, at 1-3.
Upon receipt of Plaintiff’s notice of appeal, this Court issued an order
directing Plaintiff to show cause “as to the basis of this Court’s jurisdiction
over this matter.” Superior Court Order (SCO), 8/31/16. Specifically, this
Court’s order stated:
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Pa.R.A.P. 341(b)(1) states: “A final order is any order that
disposes of all claims and of all Parties.” See Vaccone v.
Syken, 899 A.2d 1103 (Pa. 2006) (orders disqualifying counsel
are not collateral orders subject to appeal).
Accordingly, appellant is directed to show cause as to the
basis of this Court’s jurisdiction over this matter. This statement
is due within 10 days of the date of this order. Failure to
respond to this Court’s directives may result in the
quashal/dismissal of this appeal without further notice.
Id. Although Plaintiff’s answer was not filed until September 12, 2016, this
Court did not quash or dismiss the appeal at that time.
In her brief, Plaintiff raises the following two issues for our review:
1. May an un-elected judge hear a case without approval of all
the parties?
2. Must a judge hold a hearing when a fine is requested?
Plaintiff’s brief at 3.
However, before we can even attempt to address Plaintiff’s issues, we
must first direct an inquiry into the problem addressed in the rule to show
cause; namely, whether the order striking the entry of appearance of
Attorney O’Brien is, or is not, a non-appealable interlocutory order. In E.R.
v. J.N.B., 129 A.3d 521 (Pa. Super. 2015), this Court discusses this issue,
referencing Vertical Resources, Inc. v. Bramlett, 837 A.2d 1193 (Pa.
Super. 2003), and Vaccone v. Syken, 899 A.2d 1103 (Pa. 2006), stating:
Both Vertical Resources and Vaccone address the
appealability of orders precluding counsel.
Vertical Resources was a creditor/debtor case, in
which the debtor, an indigent single mother, was
represented by an attorney who had agreed to
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represent her in a fee arrangement with a maximum
limit of $5,000. A panel of the Superior Court
decided that, under the unique facts of that case, the
debtor’s right to proceed would be irreparably lost if
the disqualification order were not immediately
reviewed because she could not afford other counsel.
The panel concluded that the debtor’s right to be
represented by counsel was a right too important to
be denied review, and thus appellant presented facts
that met both the second and third prongs of the
collateral order doctrine.
Vaccone, 899 A.2d at 1106-07 (citations and footnote omitted).
Finding the preclusion order was an appealable collateral order,
the Court in Vertical Resources went on to address the
appellant’s claim regarding disqualification of counsel on the
merits.
In Vaccone, our Supreme Court addressed “the question of
whether an order disqualifying trial counsel in a civil case is an
interlocutory order, which is not immediately appealable.”
Vaccone, 899 A.2d at 1105. The Court specifically declined to
extend the holding in Vertical Resources, stating that it agreed
with the Superior Court that Vertical Resources “was decided
based on its own particular facts, and does not warrant a
wholesale application of the collateral order doctrine to attorney
disqualification orders.” Id. at 1107. Accordingly, the Vaccone
Court determined that disqualification orders are usually
interlocutory and not immediately appealable. See also Karch
v. Karch, 879 A.2d 1272 (Pa. Super. 2005) (quashing order
disqualifying counsel from representing husband in ongoing
custody and divorce case on basis that the order was
interlocutory and, thus, not immediately appealable).
E.R., 129 A.3d at 524-25. See also Sutch v. Roxborough Memorial
Hosp., 151 A.3d 241, 254 (Pa. Super. 2016) (“An order disqualifying
counsel in a civil case is a non-appealable interlocutory order … and is not
appealable under the collateral order doctrine.”).
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Plaintiff has not identified any reason why the issue of Attorney
O’Brien’s representation in these proceedings cannot be addressed after a
final order is entered in this case. Therefore, pursuant to the case law cited
above, we are compelled to quash Plaintiff’s appeal as interlocutory and
remand the matter for further proceedings.
Appeal quashed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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