J-S26043-16


                               2016 PA Super 158

IN RE: ALBERT STAICO, JR.                        IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: DOROTHY STAICO
                                                      No. 2627 EDA 2015


                     Appeal from the Decree July 15, 2015
             In the Court of Common Pleas of Philadelphia County
                 Orphans' Court at No(s): Control No. 125387
                               No. 798AP of 2012


BEFORE: OLSON, STABILE and STRASSBURGER,*

DISSENTING OPINION BY OLSON, J.:                        FILED JULY 20, 2016

        I must respectfully dissent from the learned majority’s decision in this

case.     The appellant here is Dorothy Staico (hereinafter “Dorothy”).

However, Dorothy is represented by her daughter, Janice Martin Staico

(hereinafter “Janice”) in this appeal, and there is nothing to suggest that

Janice is an attorney or is authorized to practice law in this Commonwealth.

Thus, although I have no quarrel with the learned majority’s analysis of the

merits of this appeal, I believe that it was improper to reach the merits.

        If Janice is not an attorney, her act of drafting and submitting

Dorothy’s appellate briefs to this Court, and her express representation of




* Retired Senior Judge assigned to the Superior Court.
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Dorothy in this appeal,1 constitutes the unauthorized practice of law.

Although such a statement seems obvious, I will explain more fully.

       As our Supreme Court declared, “[t]he Pennsylvania Constitution vests

with [the Pennsylvania Supreme Court] the exclusive authority to regulate

the practice of law, which includes the power to define what constitutes the

practice of law.” Harkness v. Unemployment Comp. Bd. of Review, 920

A.2d 162, 166 (Pa. 2007) (plurality); see also Pa. Const. Art. V, § 10(c);

Dauphin County Bar Ass’n v. Mazzacaro, 351 A.2d 229, 233 (Pa. 1976).

Our Supreme Court has never provided “an all-encompassing statement of

what activities comprise the practice of law;” rather, it has “determined what

constitutes the practice of law on a case-by-case basis.”     Harkness, 920

A.2d at 166.

       As a plurality of the Supreme Court has explained, the case-by-case

determination of whether a particular activity constitutes the practice of law

requires the balancing of two separate, and potentially conflicting, public

interests.   These public interests are, one, protecting the public from “the

intrusion of inexpert and unlearned persons in the practice of law, [so as] to

assure the public adequate protection in the pursuit of justice” and, two,

____________________________________________


1
  I note that Janice’s name appears on the cover of the appellate briefs as
the “Pro Se Appellant,” however, within the briefs, Janice declares that she is
acting “on behalf of Dorothy [],” and Janice signed the appellate briefs “[o]n
behalf of Dorothy [].” See Appellant’s Brief at Cover and 42, and Appellant’s
Reply Brief at Cover and 22.



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“prudent regulation” by “not burdening the public by too broad a definition of

the practice of law, resulting in the overregulation of the public’s affairs.”

Id. at 166-167.

      To balance the twin public interests, and to determine whether a

particular activity constitutes the practice of law, our Supreme Court has

primarily “focused on the character of the activit[y] at issue.” Id. at 167.

In Harkness, the Supreme Court identified four “broad categories of

activities that may constitute the practice of law.”        Id.   These categories

are: 1) “the instruction and advising of clients in regard to the law so that

they may pursue their affairs and be informed as to their rights and

obligations;”   2)   “the   preparation    of   documents   for   clients   requiring

familiarity with legal principles beyond the ken of ordinary laypersons;” 3)

“the appearance on behalf of clients before public tribunals in order that the

attorney may assist the deciding official in the proper interpretation and

enforcement of the law;” and, 4) “holding out of oneself to the public as

competent to exercise legal judgment.”          Id.; see also Shortz v. Farrell,

193 A. 20, 21 (Pa. 1937); Mazzacaro, 351 A.2d at 232-233. Further, the

Harkness Court declared that, although “the tribunal before which the

individual is before is not determinative in deciding what comprises the

practice of law,” “the nature of the proceedings in which the individual is

acting is not to be wholly discounted . . . [and] certainly is relevant in




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determining the needs of the public, both in terms of protection and

overregulation.” Harkness, 920 A.2d at 167.

      In this case, Janice’s act of drafting and submitting Dorothy’s appellate

briefs to this Court, and her express representation of Dorothy in this

appeal, unquestionably constitute the practice of law. To be sure, effective

appellate advocacy requires, amongst other things:        the ability to read,

understand, and apply the Rules of Appellate Procedure; the ability to read,

understand, and apply the Rules of Civil Procedure; the ability to recognize a

client’s strongest legal claims and arguments; the ability to limit the claims

raised in the appeal to the strongest legal claims and arguments; the ability

to recognize and respond to the opponent’s claims and arguments; the

knowledge of and ability to find black-letter substantive law; the knowledge

of and ability to find prior precedent; the ability to read, comprehend, and

analyze statutes, rules, and case law; the ability to apply the substantive law

to the facts of the case; the ability to extrapolate prior precedent and apply

legal theory to diverse factual scenarios; the ability to craft persuasive and

legally correct arguments; the ability to transfer the carefully crafted legal

arguments into written word and to then write and (and sometimes orally

argue) in a persuasive, precise, accurate, and succinct manner; the ability to

adhere to ethical obligations, including confronting adverse authority and

correctly quoting, citing, and characterizing the facts and the law; and, the




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ability to recognize and defer to the appellate court’s standard of review and

to craft arguments that understand the appellate court’s standard of review.

      The knowledge, learning, skills, and ethical obligations demanded of

appellate advocates in this Court demonstrates that, when Janice drafted

and submitted Dorothy’s appellate briefs to this Court, and when Janice

declared that she was acting “on behalf of” Dorothy in this appeal, Janice fell

strongly within three of the four “broad categories of activities” that our

Supreme Court has recognized as constituting the practice of law.              See

Harkness, 920 A.2d at 167. Certainly, the only thing that Janice did not do

in this case is hold herself out to the public “as competent to exercise legal

judgment.” Id. Since there is nothing to suggest that Janice is an attorney

or is authorized to practice law in this Commonwealth, I believe that we

must issue a rule to show cause upon Janice, so that Janice may

demonstrate that she is (or is not) authorized to practice law in this

Commonwealth.     If she is, we may consider the issues that she raises on

appeal; if she is not, we must strike the briefs filed on behalf of Dorothy.

      Further, even though the appellee has not filed a motion to strike

Dorothy’s brief, I believe that we must raise this issue sua sponte.

Certainly, as the Pennsylvania Supreme Court explained, the prohibition

against the unauthorized practice of law is in place primarily to protect the

public. Childs v. Smeltzer, 171 A. 883, (Pa. 1934) (“[t]he strict regulation

and control of persons who render legal services is as necessary and


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essential to the welfare of the public at large as the requirements for the

practice of medicine or dentistry”); Shortz, 193 A. at 24 (“the object of the

legislation forbidding [the] practice [of law] to [l]aymen is . . . to assure to

the public adequate protection in the pursuit of justice”); Mazzacaro, 351

A.2d at 233 (“[the] stringent requirements [to practice law] are intended to

protect and secure the public’s interest in competent legal representation. It

is to guard against the impairment of this interest that the practice of law by

persons who are not authorized to do so is forbidden”); Harkness, 920 A.2d

at 167 (“a determination of the practice of law is made on a case-by-case

basis, focusing primarily on protection of the public and the public weal”);

see also 42 Pa.C.S.A. § 2524(a) (“. . . any person . . . who within this

Commonwealth shall practice law, or who shall hold himself out to the public

as being entitled to practice law, or use or advertise the title of lawyer,

attorney at law, attorney and counselor at law, counselor, or the equivalent

in any language, in such a manner as to convey the impression that he is a

practitioner of the law of any jurisdiction, without being an attorney at law .

. . , commits a misdemeanor of the third degree upon a first violation”).

      Thus, since the prohibition against the unauthorized practice of law is

in place to protect the public at large – and not to protect the opposing party

or opposing counsel – the failure of opposing counsel to raise the issue

cannot result in the waiver of the issue on appeal – and this Court has an

obligation to raise the issue sua sponte.


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       In conclusion, I believe the learned majority erred when it reached the

merits of this appeal. I believe that the proper course of action is for this

Court to issue a rule upon Janice to show cause as to why the briefs should

not be stricken, as the briefs appear to be written (and the appeal appears

to be prosecuted) by an individual who is not authorized to practice law in

this Commonwealth.2,      3



____________________________________________


2
 The majority notes that Janice has power of attorney for Dorothy. Majority
Opinion at 1, n.1. However, as this Court has held:

         Sections 5602 and 5603 of the Probate Code do not
         empower an individual who is not licensed as an attorney-
         at-law to practice law in this Commonwealth. [See 20
         Pa.C.S.A. §§ 5602 and 5603.] To construe the Probate
         Code so as to permit a non-attorney to appear and
         represent a principal in a court of record would be to permit
         the licensing and admission requirements to be
         circumvented. In addition, such an interpretation would
         effectively abrogate the Judicial Code’s prohibition against
         the unlicensed practice of law. The potential problems
         created by the use of the power of attorney as a means of
         encouraging the unauthorized practice of law are obvious.
         Of course, if the principal wishes to proceed pro se, he or
         she may do so. However, the power of attorney cannot be
         used as a device to license laypersons to act as an attorney-
         at-law.

Kohlman v. W. Pa. Hosp., 652 A.2d 849, 852 (Pa. Super. 1994).
3
  The Commonwealth Court has held that non-attorney representation of an
appellant deprives the court of jurisdiction to consider the claims raised by
the appellant. See Spirit of the Avenger Ministries v. Commonwealth,
767 A.2d 1130, 1130-1131 (Pa. Cmwlth. 2001). I do not believe that such
representation deprives this Court of jurisdiction over the appellant’s case or
claims. However, I do believe that such representation requires that this
Court sua sponte strike the appellant’s briefs.



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