J-S06023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER L. GIDDINGS, ESQUIRE,                 IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS AN AGENT                            PENNSYLVANIA
AND/OR PRINCIPAL OF CHRISTOPHER L.
GIDDINGS, P.C.

                            Appellee

                       v.

DANNY ELMORE, ESQUIRE
INDIVIDUALLY AND AS AN AGENT
AND/OR PRINCIPAL OF ELMORE, PUGH &
WARREN, P.C. AND JEFFREY B. KILLINO,
ESQUIRE INDIVIDUALLY AND AS AN
AGENT AND/OR PRINCIPAL OF THE
KILLINO FIRM, P.C.

APPEAL OF: JEFFREY B. KILLINO,
ESQUIRE
                                                       No. 312 EDA 2014


                    Appeal from the Order October 16, 2012
              In the Court of Common Pleas of Philadelphia County
                          Civil Division at No(s): 1212


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED JUNE 11, 2015

        Jeffrey Killino, Esquire, appeals from the order of the Court of Common

Pleas of Philadelphia County dated October 16, 2012, which granted

Appellee Christopher Giddings, Esquire’s, motion for costs and expenses



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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connected to discovery in aid of execution in the amount of $10,048.00 and

$500.00 for counsel fees. Upon careful review, we quash the appeal.

      This case arises out of a dispute between attorneys over counsel fees

in a matter that settled for $4.5 million, Jordan v. Nazareth Hospital, et

al, Philadelphia CCP, February Term 2008; No. 1054.        On July 12, 2010,

Giddings filed a complaint in declaratory judgment seeking an order directing

Killino to pay him an agreed upon referral fee of 33 1/3 percent of the

attorney fee in Jordan.      As the matter progressed, the court granted

Giddings’ motion to compel interpleader, denied Killino’s motion for

summary judgment, and on June 28, 2011, granted Giddings’ motion for

summary judgment and ordered Killino to pay Giddings $550,333.33

immediately.

      On July 5, 2011, Killino filed an appeal to this Court. However, he did

not file “with the clerk of the lower court . . . appropriate security in the

amount of 120% of the amount found due to the lower court and remaining

unpaid,” as required by Pa.R.A.P. 1731(a).        Accordingly, there was no

automatic supersedeas. Because Killino did not pay the amount owed, and

there was no supersedeas, on July 29, 2011, while the appeal was pending,

Giddings issued writs of execution against Killino’s real estate, bank accounts

and personal property. On November 11, 2011, Giddings filed a motion for

reimbursement of fees associated with the issuance of the writs.

      On September 7, 2012, this Court affirmed the grant of summary

judgment in favor of Giddings.     Giddings v. Elmore, 60 A.3d 846 (Pa.

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Super. 2012) (unpublished memorandum). Giddings then informed the trial

court of the affirmance, and requested that the court rule on his outstanding

motion for reimbursement. The court scheduled argument for October 16,

2012.

        On October 9, 2012, Killino filed a petition for allowance of appeal of

this Court’s order.

        The argument on Giddings’ motion took place as scheduled on October

16, 2012, but Killino did not appear. The trial court issued an order on that

date ordering Killino to pay $10,048.00 for costs and fees related to

discovery in aid of execution and $500.00 for preparation and filing of the

motion. Killino filed a motion for reconsideration on October 18, 2012.

        By order dated October 29, 2013, the Pennsylvania Supreme Court

denied Killino’s petition for allowance of appeal from this Court’s order

granting summary judgment.            Giddings v. Elmore, 60 A.3d 846 (Pa.

2013).    Shortly thereafter, Killino filed another motion for reconsideration,

which the trial court denied on December 12, 2013. On December 18, 2013,

Killino filed a notice of appeal from the October 16, 2012 order for costs and

fees    and   the   December    12,    2013   order   denying   his   motion   for

reconsideration.

        On appeal, Killino raises the following issues for our review:

        1. Did the trial court commit an error of law and/or abuse its
           discretion when it granted . . . Giddings[’] . . . motion for
           costs and fees while the case was under appeal and in
           deferred status?


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      2. Did the trial court commit an error of law and/or abuse its
         discretion when it did not decide . . . Gidding[’s] . . . motion
         for costs and fees on the merits, as . . . Killino . . . had
         already properly shown cause for denial of the motion for
         costs and fees prior to the October 2012 hearing?

      3. Did the trial court commit an error of law and/or abuse its
         discretion when it awarded . . . Giddings . . . costs that he
         was prohibited from recovering?

      4. Did the trial court commit an error of law and/or abuse its
         discretion when it awarded . . . Giddings . . . attorney’s fees
         that he was prohibited from recovering?

      5. Did the trial court commit an error of law and/or abuse its
         discretion when it awarded . . . Giddings . . . exorbitant
         attorney’s fees?

Appellant’s Brief at 4.

      Killino’s December 18, 2013 notice of appeal states that he appeals

from the October 16, 2012 order granting Giddings’ motion for recovery of

expenses     and   the    subsequent   December   12,   2013   order   denying

reconsideration.    As an initial matter, we note that the order denying

reconsideration is not appealable. “Pennsylvania case law is absolutely clear

that the refusal of a trial court to reconsider . . . a final decree is not

reviewable on appeal.” Provident Nat’l Bank v. Rooklin, 378 A.2d 893,

897 (Pa. Super. 1977). Accordingly, we focus exclusively on the October 16,

2012 order.

      Killino raises two related arguments, both of which we are constrained

to reject.   First, he asserts that the trial court erred in granting Giddings’

motion for reimbursement while the grant of summary judgment was on




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appeal and second, he argues that his December 18, 2013 notice of appeal

from the October 16, 2012 order was timely filed.

      Killino relies on the general rule that “after an appeal is taken . . . the

trial court or other government unit may no longer proceed further in the

matter.”     Pa.R.A.P. 1701(a).     However, Pa.R.A.P. 1701(b) provides that

“after an appeal is taken . . . the trial court . . . may . . . take other action . .

. otherwise ancillary to the appeal.”         Pa.R.A.P. 1701(b).      Rule 1701(c)

clarifies that “where only a particular item, claim or assessment adjudged in

the matter is involved in an . . . appeal . . . the appeal . . . shall operate to

prevent the trial court . . . from proceeding further with only such item,

claim or assessment.” Pa.R.A.P. 1701(c). Accordingly, the only issues the

trial court was precluded from addressing during the pendency Killino’s

appeal were those related to the entry of summary judgment in favor of

Giddings.

      In Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1 (Pa.

2013), an automobile manufacturer argued that Rule 1701(b) precluded the

trial court from acting on a counsel fee petition while the case was on

appeal.     Our Supreme Court disagreed because “Pennsylvania law is well

established that a petition for attorneys’ fees is an ancillary matter, which

the trial court retains authority to decide after entry of judgment on the

verdict.” Id. at 49. See also Old Forge School Dist. V. Highmark, 924

A.2d 1205 (Pa. 2007) (motion for attorneys’ fees constitutes separate

matter properly addressed by trial court while underlying matter on appeal).

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     Giddings’ motion for reimbursement was an ancillary matter involving

costs and fees related to his attempt to execute on the summary judgment

award. Although Killino filed a timely appeal of the award, he did not file

“appropriate security in the amount of 120% of the amount found due by

the lower court and remaining unpaid,” Pa.R.A.P. 1731(a), and accordingly,

there was no automatic supersedeas. With no stay in place, Giddings was

entitled to execute on the judgment despite the pendency of an appeal.

Accordingly, the trial court had jurisdiction to enter the October 16, 2012

order for costs and fees related to executing on the judgment.

     The October 16, 2012 order was a final order because it “dispose[d] of

all claims of all parties,” Pa.R.A.P. 341(b)(1), and accordingly, a notice of

appeal had to be “filed within 30 days after the entry of the order.”

Pa.R.A.P. 903(a).   However, Killino did not file a notice of appeal until

December 18, 2013, apparently believing that his July 5, 2011 appeal to this

Court and his subsequent petition for allowance of appeal to the Supreme

Court on October 9, 2012 acted to stay any action on Giddings’ motion for

reimbursement. As explained herein, this conclusion was mistaken.

     Under Rule 903(a), Killino had until November 16, 2012 to file a notice

of appeal. Mindful that “the court may not enlarge the time for filing of a

notice of appeal,” Pa.R.A.P. 105(b), we are constrained to quash Killino’s

appeal.

     Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2015




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