Cole v. Price

• Decision Date: 28 August 2000
• Citation: 758 A.2d 231
• Parties: Richard A. COLE, M.D., Appellant, (At 1388), v. Kirk PRICE, Appellee. Richard A. Cole, M.D., Appellant, (At 1389), v. Beverly Sackett and Gary Sackett, her Husband, Appellees. Richard A. Cole, M.D., Appellant, (At 1390), v. Kathy Jean Colonna, Appellee. Richard A. Cole, M.D., Appellant, (At 1392), v. Betty Catalone, Appellee. Richard A. Cole, M.D., Appellant, (At 1398), v. Margaret Marther, Appellee.
• Court: Pennsylvania Superior Court

758 A.2d 231

Richard A. COLE, M.D., Appellant, (At 1388), v. Kirk PRICE, Appellee.

Richard A. Cole, M.D., Appellant, (At 1389), v. Beverly Sackett and Gary Sackett, her Husband, Appellees.

Richard A. Cole, M.D., Appellant, (At 1390), v. Kathy Jean Colonna, Appellee.

Richard A. Cole, M.D., Appellant, (At 1392), v. Betty Catalone, Appellee.

Richard A. Cole, M.D., Appellant, (At 1398), v. Margaret Marther, Appellee.

Superior Court of Pennsylvania.

Submitted December 1, 1999.

Filed August 28, 2000.

Reargument Dismissed September 14, 2000.

Richard A. Cole, appellant, pro se.

Richard J. Parks, Erie, for appellees.

Before CAVANAUGH, DEL SOLE, POPOVICH, JOHNSON, HUDOCK, FORD ELLIOTT, MUSMANNO, ORIE MELVIN and LALLY-GREEN, JJ.

POPOVICH, J.:

¶ 1 This case involves consolidated appeals filed by the plaintiff/appellant (Richard A. Cole, M.D.) challenging the orders of the Court of Common Pleas of Erie County granting motions to dismiss filed by the defendants/appellees (Colonna, Catalone, Price, Sackett and Marther) on the basis that the appellant's assignment of interest in the lawsuits did not obviate his status as the "real party in interest". We affirm in part and reverse in part.

¶ 2 The unique scenario in each case requires recital to appreciate our disposition: Richard A. Cole, M.D. v. Kathy Jean Colonna and Richard A. Cole, M.D. v. Betty Catalone were commenced by counsel for the plaintiff with writs of summons naming "Richard A. Cole, M.D., Inc." the plaintiff. After counsel withdrew, Richard A. Cole, M.D. entered his appearance.¹ Complaints followed claiming monies were owed for alleged medical services rendered to the appellees. An "Assignment of Claims" was executed on June 6, 1996, transferring all of Dr. Cole's rights to collect these asserted debts to his brother/Steven for consideration in the form of financial aide and lodging totaling $30,000.00 in value.

¶ 3 The June 6th assignment was executed subsequent to the filing of the complaints in Colonna and Catalone, whereas the assignment preceded the filing of complaints in Richard A. Cole, M.D. v. Price, Richard A. Cole, M.D. v. Beverly and Gary Sackett and Richard A. Cole, M.D. v. Margaret Marther, the consequences of which will be discussed infra.

¶ 4 The temporal act of filing the complaints in Colonna and Catalone is crucial to determining their outcome. See Cole v. Boyd, 719 A.2d 311 (Pa.Super.1998),

wherein the same plaintiff sued a former patient for medical services. We reversed in favor of the plaintiff because the assignment occurred after suit was commenced. This activated Pa.R.Civ.P. 2004, which permitted the continuation of the suit notwithstanding assignment. In doing so, we made the following relevant observations; to-wit:

... since the assignment was made after the suit was instituted, Pa.R.Civ.P. 2004 and not Rule 2002 (as relied upon by the trial court and the litigants) is controlling as to the party-plaintiff. The MacKenzie Co. v. Fidelity & Deposit Co. of Md., et al., 54 Dauphin Cty. Rptrs. 294, 298 (1943). Rule 2004 reads:

If a plaintiff has commenced an action in his own name and thereafter transfers his interest therein, in whole or in part, the action may continue in the name of the original plaintiff, or upon petition of the original plaintiff or of the transferee or of any other party in interest in the action, the court may direct the transferee to be substituted as plaintiff or joined with the original plaintiff.

The language of Rule 2004 is clear in not requiring that, once a transfer of an interest occurs by a plaintiff after an action has commenced, a transferee be named as a co-plaintiff or substituted as plaintiff. Birdsboro Corp. v. Weng, 426 Pa.Super. 301 [303-05], 626 A.2d 1216, 1217 (1993)(Substitution of parties, once suit has been commenced "is permissible, it is not essential [under Rule 2004]."); The MacKenzie Co., supra; 3 P.L.E. Assignments, § 92 at 206-207 ("Under this rule [2004], it is not mandatory for the assignee to be substituted as plaintiff or joined as co-plaintiff, and the fact that the plaintiff and assignee choose to continue the action in the name of the original plaintiff cannot be construed as a fraud upon the court, nor does it render the proceeding defective or create an infirmity in the judgment." (Footnote omitted)); C.J.S. 6A Assignments, § 106 at 767 ("Assignment after suit brought. Where an assignment is made by plaintiff in an action after commencement of the suit, the assignee acquires the right to control the action, and his rights as assignee will be protected; and where authorized by statute, an assignee of an interest in a pending action has the option of being substituted in the action or continuing it in the name of his assignor." (Footnotes omitted)).

719 A.2d at 313-314.

¶ 5 In Colonna and Catalone, we have the added factor set in the "Motion to Dismiss" and on appeal that appellant's continued representation of his brother constitutes the unlawful practice of law. In evaluating the validity of such a claim, we are guided by certain precepts.

¶ 6 First, the power to regulate and define what constitutes the practice of law is vested in our Supreme Court. Pennsylvania Constitution, Article V, Section 10(c) provides as much:

(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts ... and for admission to the bar and to practice law....

To assist in the admission process, our Supreme Court has created testing procedures overseen by a Board of Law Examiners. Once admission is secured, the conduct of those privileged to engage in the practice of law is governed by a Code of Professional Conduct. Also, the requisite level of knowledge and skill to fulfill one's professional responsibility has resulted in the adoption of Rules of Continuing Legal Education. Together, these requirements are intended to protect and secure the public's interest in competent legal representation. On this subject, Mr. Justice (later Chief Justice) Stern once observed:

While, in order to acquire the education necessary to gain admission to the bar and thereby become eligible to practice law, one is obliged to `scorn delights, and live laborious days,' the object of the legislation forbidding practice to laymen is not to secure to lawyers a monopoly, however deserved, but, by preventing the intrusion of inexpert and unlearned persons in the practice of law, to assure to the public adequate protection in the pursuit of justice, than which society knows no loftier aim.

Shortz v. Farrell, 327 Pa. 81, 91, 193 A. 20, 24 (1937); see also Childs v. Smeltzer, 315 Pa. 9, 171 A. 883 (1934); Note, The Unauthorized Practice of Law by Laymen and by Lay Associates, 54 Cal.L.Rev. 1331 (1966).

¶ 7 Second, because the practice of law involves areas of public concern, the General Assembly has promulgated legislation to prevent the unauthorized practice of law; namely:

... any person ... who within this Commonwealth shall practice law ... without being an attorney at law ... commits a misdemeanor of the third degree....

42 Pa.C.S.A. § 2524(a)(Supp.1999). However, in most situations, the criminal remedy for the unauthorized practice of law is inadequate to protect the public from continuing unauthorized practice. Dauphin Cty. Bar Ass'n v. Mazzacaro, 465 Pa. 545, 351 A.2d 229 (1976); Shortz, 327 Pa. at 81, 193 A. at 20; Matter of Arthur, 15 Bankr. Rptr. 541, 545 (M.D.Pa.1981). In other words, the fact that a criminal remedy is imposed by statute does not deprive a court from enjoining the ongoing unauthorized practice of law. Id.

¶ 8 Here, the appellant filed complaints alleging breach of an implied contract and unjust enrichment, pleadings opposing the respective "Motions to Dismiss" and briefs, preliminary objections to the defendants' Answer, New Matter and Counterclaim, and made repeated appearances in-court on behalf of Steven's interest as assignee of Cole's rights—a paradigmatic function of the attorney-at-law. As such, all of the above coalesce to form the "practice of law" in this jurisdiction. Kohlman v. Western Pa. Hosp., 438 Pa.Super. 352, 358-60, 652 A.2d 849, 852 (1994), allocatur denied, 541 Pa. 640, 663 A.2d 692 (1995).

¶ 9 With the appellant's unabashed practice of law without a license, this Court is imbued with equity powers to proscribe his future in-court appearances on behalf of another by enjoining the appellant from such behavior forthwith. Matter of Arthur, supra. Of course, with the categorization of the assignment from the appellant to Steven as a valid transference of his rights to recoup monies alleged due for medical services if the principal assignee, Steven, wishes to proceed pro se, he may do so. Kohlman, supra.

Therefore, on remand, Steven shall be availed the option to pursue the Colonna and Catalone cases as the named plaintiff. See Cole v. Boyd, supra.

¶ 10 The appellant's efforts to neutralize this course of action by arguing the issuance of a rescission of the assignment and subrogation of rights is specious because the executory nature of the contract (with the advancement of money and lodging by Steven and the uncompleted act of repayment by the appellant) is not susceptible to rescission absent additional consideration. See 17A Am.Jur.2d § 554.

¶ 11 Further, under Pennsylvania law, an assignment made for consideration is irrevocable. Brager v. Blum, 49 Bankr. Rptr. 626, 629 (E.D.Pa.1985). Sub judice, this constitutes the death knell for the appellant's efforts to proceed farther in Colonna and Catalone.² The same result obtains with regard to the remaining lawsuits, however the rationale is different.

¶ 12 To explicate, in Price, Sackett and Marther complaints were filed after the June 6, 1996, assignment transferring all of the appellant's rights to collect monies allegedly due from former patients. As such, Pa.R.Civ.P. 2004's allowance of the lawsuits to continue, despite a change in the...