Lawyers Funding Group v. Martucci, J. ( 2021 )

J-A10013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAWYERS FUNDING GROUP, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN MARTUCCI, JR., ESQ., :
MARTUCCI LAW OFFICES, LLC., :
STEVEN F. MARINO, AND MARINO & : No. 1519 EDA 2020
ASSOCIATES, PC :
:
:
APPEAL OF: JOHN MARTUCCI, JR., :
ESQ., AND MARTUCCI LAW OFFICES, :
LLC :
Appeal from the Order Entered July 16, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 160400915
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: Filed: October 7, 2021
John Martucci, Jr., Esq. and Martucci Law Offices, LLC., (collectively,
“Judgment Debtors”) seek to have counsel for Lawyer’s Funding Group, LLC,
(”LFG”) disqualified from this action to enforce a judgment that LFG obtained
against Judgment Debtors for breach of contract. We affirm.
The facts of this matter span the course of a decade. Beginning in 2011
Judgment Debtors entered into several agreements to sell their accounts
receivable to LFG. On April 11, 2016, LFG filed a civil complaint against
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* Retired Senior Judge assigned to the Superior Court.
J-A10013-21
Judgment Debtors alleging breach of contract and Judgment Debtors failed to
meaningfully participate in discovery. Consequently, the trial court entered an
order directing that if Martucci did not appear for a deposition, judgment would
be entered against the Judgment Debtors.
Martucci did not appear for the deposition, and on March 1, 2017, LFG
filed a motion for judgment, which the trial court granted on March 24, 2017.
The trial court held an assessment of damages hearing on April 3, 2017, and
assessed damages against Judgment Debtors jointly and severally, in the
amount of $229,875.97. Judgment Debtors did not seek to open or strike the
judgment.1
On April 6, 2018, David Denenberg, Esquire, entered his appearance on
behalf of LFG for the purpose of executing on the judgment. Attorney
Denenberg filed a writ of execution in attachment upon Garnishee Eisenberg
Rothweiler Winkler Eisenberg & Jeck, P.C., a law firm holding a referral fee for
Judgment Debtors. A judgment by admission against the garnishee law firm
was entered on August 16, 2018, in the amount of $106,666.67, and a partial
satisfaction of the judgment was filed.
On March 17, 2020, Attorney Denenberg filed a motion for discovery in
aid of execution, and Judgment Debtors failed to respond. Thereafter, the
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1 On June 22, 2017, a discontinuance was entered with regard to Steven F.
Marino and Marino and Associates, PC.
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motion was granted. Subsequently, Judgment Debtors filed a motion to
disqualify Attorney Denenberg as counsel for LFG. Attorney Denenberg filed a
response, and on July 16, 2020, the trial court denied the motion to disqualify.
Judgment Debtors then filed this timely appeal.
In their sole issue, Judgment Debtors allege that the trial court
improperly denied the motion for disqualification. Judgment Debtors contend
that they presented sufficient facts of Attorney Denenberg’s prior
representation of Martucci to compel the trial court to hold a hearing and grant
the motion to disqualify. We disagree.
“When reviewing a trial court's order on disqualification of counsel, we
employ a plenary standard of review.” Weber v. Lancaster Newspapers,
Inc., 878 A.2d 63, 80 (Pa. Super. 2005) (citation omitted). The Pennsylvania
Rules of Professional Conduct govern the practice of law in the
Commonwealth. However, they were not intended to create substantive law
applicable outside disciplinary proceedings. See Pa.R.P.C., Preamble and
Scope, at ¶ 18, 19. The Rules prohibit a lawyer from prosecuting a case
against a former client if the case is substantially related to an issue pertinent
to the representation of the former client. See Pa.R.P.C. 1.9(a).
A court may sanction an attorney who violates the Rules. See McCarthy
v. SEPTA, 772 A.2d 987, 991 (Pa. Super. 2001). Possible sanctions include
disqualification. See id. However, “courts should not lightly interfere with the
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right to counsel of one’s choice.” Weber, 878 A.2d at 80 (citation omitted).
Therefore, “[a] court’s authority to disqualify counsel based on [the] Rules of
Professional Conduct is limited.” McCarthy, 772 A.2d at 991. Disqualification
is only proper when due process requires it. See id.
Rule 1.9 is a recognition of the common law duty lawyers owe to their
current and former clients. See Dougherty v. Philadelphia Newspapers,
LLC, 85 A.3d 1082, 1086-87 (Pa. Super. 2014). The duty encompasses
confidentiality and avoidance of conflicts of interest. See id. As such, a
“breach of such duty is actionable.” Id. (citation omitted). Accordingly, a court
may disqualify an attorney whose representation constitutes a breach of the
duty of confidentiality and loyalty to a former client. See id., at 1087.
To establish grounds for disqualification, the former client must establish
three elements. First, the attorney’s current representation is adverse to the
relationship established with the former client. See id. Second, the subject
matter of the current case is substantially related to the subject matter of the
previous representation. See id. And finally, the attorney acquired knowledge
of confidential information about the prior client during the prior
representation. See id.Here, the trial court denied the motion to disqualify based upon
Judgment Debtors’ failure to properly plead facts that would support the
motion. As the trial court aptly stated, “[Judgment Debtors have] not
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produced a scintilla of evidence to justify the present motion.” Order, 7/16/20,
at 1 n.1. We agree.
Upon reviewing the certified record, particularly the motion filed by
Judgment Debtors, we are struck by the failure to offer any salient facts that
would support the three elements necessary to grant disqualification pursuant
to Dougherty. Rather, in their motion to disqualify, Judgment Debtors make
bald and nonspecific statements about alleged prior representation by
Attorney Denenberg. For instance, Judgment Debtors offered the following
generic statement: “[Attorney Denenberg] throughout the years has
represented [Judgment Debtors] in various forms, for example in a
commercial Landlord/Tenant action filed by Richard Doty, Esquire, many years
ago.” Motion, 6/22/20, at ¶ 70. Judgment Debtors’ generic statements
continued with allegations such as, “[Attorney Denenberg’s] representations
always surrounded debt collections and rental issues.” Id. at ¶ 71. Missing
from Judgment Debtors’ pleading is any distinct reference to a particular case
or cases that would compel disqualification. In fact, Judgment Debtors only
reference one party to an alleged case, employing the following statement:
“[Attorney Denenberg] has represented [Judgment Debtors] in previous debt
related matters, including a matter in Philadelphia Municipal Court involving
One Penn Center.” Id. at ¶ 102. However, Judgment Debtors fail to offer any
specific information about that case, such as a docket number, dates, or any
additional information that would substantiate the allegation in the pleading.
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Rather, Judgment Debtors include the following language in a footnote to
justify the lapse in specificity:
9 [Attorney Denenberg] was, upon all information and belief, paid
five hundred dollars and no cents ($500.00) for his
representation. The dockets are not readily available due to age
and those files due to age may have been destroyed.
Id. at n.9.
The dearth of substantiating evidence compels our conclusion that the
trial court correctly held that disqualification was not proper. Indeed,
Judgment Debtors failed to plead any specific facts that would support any
one of the three required elements necessary to grant disqualification. The
omission on the part of Judgment Debtors is particularly disconcerting because
Judgment Debtors should have had actual knowledge of the facts that
purportedly formed the basis of the motion. Consequently, we discern no error
on the part of the trial court in denying the motion for disqualification of
counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/21
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