Frezghi, H. v. Tesfamariam, A.

J-S09004-22
2022 PA Super 101HABTE Z. FREZGHI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADHANOM K. TESFAMARIAM, AND :
ASMERET M. GEBREHIWOT :
: No. 1845 EDA 2021
Appellants :
Appeal from the Order Entered August 17, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 191201113
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY LAZARUS, J.: FILED JUNE 02, 2022
Adhanom K. Tesfamariam and Asmeret M. Gebrehiwot (Defendants)
appeal from the order, entered in the Court of Common Pleas of Philadelphia
County, granting Habte Frezghi’s (Plaintiff) post-trial motion, in part,1 and
ordering a new trial. After our review, we reverse the trial court’s order
granting a new trial. However, we remand the matter, without prejudice, to
allow the Plaintiffs to file appropriate pleadings, if any, and to caution the trial
court that it must not allow the unauthorized practice of law.
On December 6, 2019, Plaintiff filed an action in quiet title/fraudulent
conveyance of the properties located at 318 S. 52nd Street (318) and 324 S.
52nd Street (324) in Philadelphia. Plaintiff’s complaint alleged Defendants
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* Former Justice specially assigned to the Superior Court.
1The court denied Plaintiff’s request for judgment notwithstanding the verdict.
See Order, 8/13/21.
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never paid the sale price of $58,000.00. Plaintiff’s Complaint, 12/6/19, ¶¶ 1-
4. The Defendants filed an answer and new matter, averring that: Plaintiff
never owned the 318 property and, thus, Plaintiff had no standing to quiet
title; Plaintiff was a record owner of the 324 property and he agreed to sell
that property to Defendants for $58,000.00; Plaintiff received $15,000.00
from Defendants as a deposit toward the purchase of that property; the deed
for the 324 property was transferred to Defendants and recorded in favor of
Defendants; and, Defendants sold the 324 property and no longer hold title.
Defendants’ Answer and New Matter, 2/21/20, at ¶¶ 6-21.
Following a non-jury trial, at which Plaintiff was “represented” by his
nephew, Mehari E. Tedla, a non-lawyer, the trial court entered judgment in
favor of Defendants, without prejudice to Plaintiff’s right to file appropriate
claims as to the 318 and 324 properties. See Order, 4/9/21. The court found
Plaintiff failed to submit evidence of a fraudulent conveyance of either of the
two properties.
Plaintiff filed a pro se post-trial motion, as well as a counseled post-trial
motion and amended post-trial motion.2 The trial court denied Plaintiff’s
motion for judgment notwithstanding the verdict and granted Plaintiff’s
request for a new trial. See Order, 8/17/21. On August 26, 2021, Defendants
filed a motion for reconsideration, which the trial court denied. See Order,
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2 On May 5, 2021, Lopez T. Thompson, Esquire, entered an appearance on
behalf of Plaintiff and filed a counseled post-trial motion and an amended post-
trial motion.
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9/1/21. On September 13, 2021, Defendants filed this timely appeal. Both
Defendants and the trial court complied with Pa.R.A.P. 1925. Defendants raise
the following issue:
Did the trial court commit an error of law in holding that the
Plaintiff’s representation by a non-attorney stripped the court of
subject matter jurisdiction over the trial and hence, even though
the Plaintiff did not preserve the issue by objection at trial or raise
it in his post-trial motion, the issue could not be waived[,] and the
court properly raised it sua sponte in granting Plaintiff a new trial?
Appellants’ Brief, at 4.
Questions of the unauthorized practice of law and the trial court’s
jurisdiction are pure questions of law, and therefore, our standard of review
is de novo and our scope of review plenary. See Harkness v.
Unemployment Comp. Bd. of Review, 920 A.2d 162, 166 n.2 (Pa. 2007).
See also Barak v. Karolizki, 196 A.3d 208, 215 (Pa. Super. 2018) (stating,
“[j]urisdiction is purely a question of law; the appellate standard of review is
de novo and the scope of review plenary”) (citation omitted).
Defendants argue Plaintiff waived the issue regarding representation by
a non-attorney at trial. Defendants contend that the trial court clearly had
jurisdiction over the fraudulent conveyance claims, see Pa. Const. art. V, § 5;
42 Pa.C.S.A. § 931(a) (“[T]he courts of common pleas shall have unlimited
original jurisdiction of all actions and proceedings, including all actions and
proceedings heretofore cognizable by law or usage in the courts of common
pleas.”), and, because representation by a non-attorney did not implicate the
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court’s subject-matter jurisdiction, the court could not raise the issue sua
sponte. Appellants’ Brief, at 10-12.
Plaintiff is from East Africa and speaks Tigrinya, a language his nephew,
Tedla, could speak and understand. Tedla was also designated as Plaintiff’s
power of attorney. In its order granting Plaintiff a new trial, the court
concluded that it had erred when it permitted Tedla to represent Plaintiff at
trial. The court stated:
Although [Plaintiff] gave a power of attorney to Mr. Tedla, a power
of attorney does not grant a layperson the authority to represent
parties in a legal proceedings. Kohlman v. Western
Pennsylvania Hospital, 652 A.2d 849, 852 (Pa. Super. 1994).
[] “In a civil action, the court lacks jurisdiction to consider the
claims raised by a non-attorney.” David R. Nicholson, Builder,
LLC v. Jablonski, 163 A.3d 1048, 1054 (Pa. Super. 2017) [].
The trial court also erred in not obtaining a translator when it
became apparent that one was necessary for [Plaintiff], who has
a limited ability to speak or understand English. See, 42 Pa.C.S.A.
§ 4402 (definitions). See generally 42 Pa.C.S.A. [§§] 4401-
4417 (court interpreters for persons with limited English
proficiency).
Order, 8/17/21. For the reasons that follow, we find Defendants’ argument
has merit, and we reverse.
First, the Jablonski case, on which the court relied,3 was disapproved
by our Supreme Court in Bisher v. Lehigh Valley Health Network, Inc.,
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3 The Supreme Court decided Bisher four months after the trial court entered
its order in this matter. See Christy v. Cranberry Volunteer Ambulance
Corps, Inc., 856 A.2d 43, 51 (Pa. 2004) (changes in law are applied
retroactively to cases pending on appeal); see also August v. Stasak, 424
A.2d 1328, 1330 (Pa. 1981) (“At common law, an overruling decision is
normally retroactive.”).
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265 A.3d 383 (Pa. 2021). In Bisher, the Court held that the unauthorized
practice of law did not implicate subject-matter jurisdiction, and thus could
not be raised sua sponte. Id. at 389, 401.
In that case, Carla and Brenton Bisher, without representation by
counsel, filed suit against eleven defendants, named individuals and corporate
entities, alleging medical malpractice resulting in their son Brenton’s death.
Id. at 388. Each parent brought their own wrongful death action, and Carla
Bisher filed a survival action on behalf of her son’s estate. Id. The trial court
struck the amended complaint with prejudice due to defects in the certificates
of merit mandated by Pennsylvania Rule of Civil Procedure 1042.3. Id. On
appeal, this Court, sua sponte determined that the Bishers committed two
errors that jointly deprived the trial court of subject-matter jurisdiction over
all claims: Carla’s unauthorized practice of law, and the lack of verification of
the complaint. We also concluded that this Court lacked jurisdiction, and we
quashed the appeal. Id. at 388-89.
The Supreme Court granted allowance of appeal, see Bisher v. Lehigh
Valley Health Network, Inc., 251 A.3d 779 (Pa. 2021) (per curiam), and,
after an analysis of jurisdictional principles and a survey of the law on the
issue of the unauthorized practice of law, made clear its holding:
This issue does not implicate subject-matter jurisdiction
Our survey establishes that few courts view the participation of a
non-attorney as implicating subject-matter jurisdiction. Some of
our sister courts describe the unauthorized practice of law as
jurisdictional but rarely, if ever, in terms of the trial court’s
competency to adjudicate the controversy. The closest
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jurisdictional tenet involves standing, but our jurisprudence does
not view standing as a jurisdictional issue subject to sua sponte
intervention. As explained, our views on this subject largely align
with those of the United States Supreme Court, and we agree
that “[c]larity would be facilitated if courts and litigants
used the label ‘jurisdictional’ not for claim-processing
rules, but only for prescriptions delineating the classes of
cases (subject-matter jurisdiction) and the persons
(personal jurisdiction) falling within a court's adjudicatory
authority.” Kontrick [v. Ryan, 540 U.S. 443, 454 (2004)].
Because the participation of a non-attorney has no
connection to the classes of cases that a court may hear,
we hold that the unauthorized practice of law is not a
subject-matter jurisdiction issue. Accordingly, we
disapprove of Jablonski and other cases to the extent they
suggest the unauthorized practice of law implicates
subject-matter jurisdiction. That conclusion is of dispositive
significance with respect to the Superior Court's ability to raise
that issue sua sponte, and the court should not have quashed the
appeal regarding the Estate claims or Brenton’s claims based on
a perceived jurisdictional defect at the trial court level.
Id. at 405-06 (emphasis added).
Although the Court acknowledged that “a court cannot ignore the
unauthorized practice of law and must intervene[,]” it determined that this
did “not conflict with our holding that the unauthorized practice of law does
not implicate subject-matter jurisdiction.” Id. at 406.
The critical distinction is that a court’s duty to stop the
unauthorized practice of law is limited to the proceedings before
that tribunal. As applied here, the Superior Court properly issued
an order requiring Carla to cease her activities[, and] would have
been justified in dismissing all of the appellate claims pertaining
to Brenton and the Estate had Carla refused to hire an attorney.
Thus, the Superior Court had discretion to give Carla a reasonable
period of time to obtain counsel. But its ability to prevent Carla
from continuing the authorized practice of law does not extend
to undoing what had already transpired at the trial court level.
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Id. (emphasis in original). The Court, finding “that the participation of a non-
attorney is properly characterized as a technical defect[,]” id. at 407, and
guided by the preference for adjudicating cases on the merits and the liberal
construction of rules of court, see Pa.R.C.P. 126, adopted the view that “any
instance of unauthorized practice of law is curable in the court’s discretion[.]”
Id. at 408-09.
As indicated above, the trial court’s order in this case was “without
prejudice to Plaintiff Habte Frezghi's right to file appropriate claims as to the
above referenced properties.” See Order, 4/9/21. The court recognized, and
Defendants acknowledge on appeal, that Plaintiff’s claims sounded in breach
of contract. Plaintiff filed a pro se post-trial motion on April 17, 2021, a
counseled post-trial motion two days later, on April 19, 2021, and an amended
counseled post-trial motion on April 21, 2021. On May 5, 2021, another
attorney entered an appearance on behalf of Plaintiff, and filed a notice of
appeal, which was ultimately dismissed for failure to file a docketing
statement. Order, 7/28/21. See Pa.R.A.P. 3517. Thus, instead of proceeding
with appropriate pleadings, Plaintiff filed a pro se post-trial motion and
Plaintiff’s counsel pursued appellate review, resulting in the court’s order
granting Plaintiff’s motion for a new trial.
We agree with the Defendants’ argument that the court had already
provided “a cure for the taint” of representation by a non-attorney, when it
entered judgment without prejudice to Plaintiff’s right to retain counsel and
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file a new complaint alleging appropriate causes of action.4 The Plaintiff’s
representation by a non-attorney did not implicate the trial court’s subject-
matter jurisdiction, and, accordingly, the trial court erred by sua sponte
invoking subject-matter jurisdiction. In light of our Supreme Court’s decision
in Bisher, we are constrained to reverse the court’s order granting a new trial,
and, as it appears the trial court has already determined the pleadings were
defective and Plaintiff is now represented by counsel, we remand for further
proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2022
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4 We emphasize, as did the Bisher Court, that a court cannot tolerate the
unauthorized practice of law and must timely intervene. The court is obligated
to take corrective action, regardless of whether the adverse party requests
such action. Bisher, 265 A.3d at 406. We decline to order a new trial unless
the new pleadings warrant same. By this action, we are placing both parties
in the position that they would have been pre-complaint.
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