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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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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