Karch v. Stewart (Complete Opinion)

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J-A13005-05 2005 PA Super 268 DINZEL JOHN KARCH a/k/a DINZEL J. KARCH a/k/a DINZEL KARCH, Appellant v. CHRISTINE ELIZABETH STEWART KARCH a/k/a CHRISTINE STEWART KARCH a/k/a CHRISTINE KARCH, Appellee : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2100 EDA 2004 Appeal from the Order dated July 26, 2004 In the Court of Common Pleas of Delaware County Civil at No.: 95-003242 BEFORE: STEVENS, TODD, and GANTMAN, JJ. OPINION BY STEVENS, J.: ¶1 Filed: July 22, 2005 Dinzel Karch ( Husband ) appeals from the June 29, 2004 order of the Court of Common Pleas of Delaware County, which granted Christine Karch s ( Wife ) petition to disqualify Husband s counsel from representing him in pending divorce, custody, and support proceedings. Because this appeal was taken from an interlocutory order that is not appealable, we quash. ¶2 Husband, who was represented by Ronald Ashby, instituted divorce proceedings against Wife in 1995. On January 26, 1996, the matter was postponed due to the parties reconciliation. Following the reconciliation, Attorney Ashby represented Husband in several matters relating to his small business. Further, from August through December 2000, Attorney Ashby represented Husband and Wife in a custody and guardianship proceeding. J-A13005-05 ¶3 In March 2004, Wife sought a Protection From Abuse Order ( PFA ) against Husband. Husband, who was represented by Attorney Ashby, ultimately consented to the entry of the PFA. The PFA was withdrawn in April 2004, when the parties attempted reconciliation. ¶4 On May 17, 2004, Wife sought a second PFA against Husband. hearing took place on May 20, 2004. At the hearing, Wife sought to disqualify Attorney Ashby from representing Husband. Michael F. X. Coll denied the request. A The Honorable Also on May 20, 2004, Husband reactivated the divorce proceedings. ¶5 from On June 10, 2004, Wife filed a petition to disqualify Attorney Ashby representing Husband in the divorce, custody, and support proceedings. Wife filed an amended petition on June 14, 2004. Following a hearing on June 29, 2004, the trial court granted the petition. Husband filed a motion for reconsideration, which was denied on July 26, 2004. instant, timely appeal followed. The Husband was ordered to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Accordingly, Husband filed his 1925(b) statement1 and the trial court subsequently issued its opinion. ¶6 We may not address the merits of this appeal without first determining whether the trial court s order disqualifying counsel is appealable. Husband invokes our jurisdiction pursuant to Pa.R.A.P. 341. It is well settled that an We note that Appellant s five-page, twenty-one issue 1925(b) statement hardly qualifies as concise. 1 -2- J-A13005-05 order disqualifying counsel is not a final, appealable order pursuant to Pa.R.A.P. 341. Middleberg v. Middleberg, 427 Pa. 114, 115-16, 233 A.2d 889, 890-91 (1967). In Middleburg, the Pennsylvania Supreme Court held that an order disqualifying counsel was interlocutory and unappealable. Id. However, our inquiry does not end with Middleburg, as Middleburg was decided prior to the adoption of the collateral order doctrine and in Vertical Resources, Inc. v. Bramlett, 837 A.2d 1193 (Pa.Super. 2003), this Court held that a motion disqualifying counsel could be appealable pursuant to Pa.R.A.P. 313. Id. at 1199-1200. ¶7 Pennsylvania Rule of Appellate Procedure 313 provides that an appeal can be taken of right from a collateral order, and it defines as collateral order as: an order separate from and collateral to the main cause of action where the right involved is too important to be denied review and 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(b). In Vertical Resources, a panel of this Court found that an order disqualifying counsel easily satisfied the first and third requirements2 of the collateral order doctrine but only found that it met the In Commonwealth v. Johnson, 550 Pa. 298, 705 A.2d 830 (1998), the Pennsylvania Supreme Court held that an order disqualifying a criminal defendant s choice of counsel was interlocutory, noting, in part, that, like a denial of a suppression motion, an order disqualifying counsel was reviewable after judgment of sentence. Id. at 305-06, 705 A.2d at 834. In In Re N.B., 817 A.2d 530, 536 (Pa.Super. 2003), we held that an order disqualifying Mother s counsel in a dependency proceeding was interlocutory, again noting that the issue could be reviewed on appeal after a dependency 2 -3- J-A13005-05 second requirement due to the unique facts of that particular case. Vertical Resources, 837 A.2d at 1199-1200. In that case, counsel had agreed to represent Appellant at an hourly rate with a capped maximum fee, and she was unable to afford other counsel. Id. Further, the propriety of another order in the case was also before the court, and thus the interest in avoiding piecemeal litigation was not implicated. Id. ¶8 Those circumstances are not present in the instant matter. There is no right to counsel in divorce, custody, or support proceedings. LaLonde, 762 A.2d at 1110-1111. Witt v. The record here reveals that Husband has already retained other counsel to represent him in the on-going divorce proceedings; thus, we are not faced with a situation where a litigant will be either forced to proceed pro se or to withdraw the litigation if counsel is disqualified. Further, there are on-going divorce, custody, and child support proceedings in this matter, and thus there is every possibility of piecemeal litigation.3 Lastly, Husband has not pointed to any particular reason why representation by Attorney Ashby in these proceedings is crucial or why the adjudication. In Witt v. LaLonde, 762 A.2d 1109, 1110-11 (Pa.Super. 2000), this Court again held that an order disqualifying counsel in child custody proceedings was interlocutory and the disqualification could be reviewed after the entry of an unfavorable final judgment. Id. In Vertical Resources, we believe that the finding that the order was reviewable on appeal turned on the particular circumstances of that case, i.e., that Appellant was indigent and would have been unable to retain other counsel and proceed with the matter, if her current counsel had been disqualified. See Vertical Resources, supra. 3 We note that these parties have recently been before us on an appeal arising from a Protection From Abuse proceeding. -4- J-A13005-05 issue could not be reviewed after entry of the final orders in this matter. Accordingly, we find that Husband has not satisfied either the second or third requirement of the collateral order doctrine and the matter before us is an unappealable, interlocutory order. ¶9 For the foregoing reasons, we quash this appeal. ¶10 Appeal quashed. -5-

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