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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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