Commonwealth v. Magee

• Decision Date: 27 December 2017
• Docket Number: No. 3459 EDA 2016,3459 EDA 2016
• Citation: 177 A.3d 315
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Brian Thomas MAGEE, Jr. Appeal of: Schindler Law Group, LLC, Thomas K. Schindler, Esquire, and John H. Pavloff, Esquire
• Court: Pennsylvania Superior Court

177 A.3d 315

COMMONWEALTH of Pennsylvania, Appellee

v.Brian Thomas MAGEE, Jr.

Appeal of: Schindler Law Group, LLC, Thomas K. Schindler, Esquire, and John H. Pavloff, Esquire

No. 3459 EDA 2016

Superior Court of Pennsylvania.

Submitted May 8, 2017

Filed December 27, 2017

Joann L. Drust, Kennett Square, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: BOWES, J., SOLANO, J., and PLATT, J.^*

OPINION BY SOLANO, J.:

Appellants Schindler Law Group, LLC, Thomas K. Schindler, Esquire, and John H. Pavloff, Esquire (collectively, "Schindler") appeal from the order denying Schindler's motion to withdraw as criminal defense counsel for Brian Thomas Magee, Jr. We affirm.

Magee was arrested and imprisoned in September 2015 for defrauding three customers by accepting deposits for home improvements and then failing to perform the work.¹ The three cases were consolidated for trial. Magee remained in custody because he was unable to post bail.

Magee retained Schindler in October 2015. According to Schindler, its engagement letter stated that Schindler would represent Magee for a flat fee that did not include representation at trial, and that a separate engagement letter and an additional fee would be required for trial representation. Schindler's Brief at 12.²

On March 15, 2016, Schindler moved for a temporary modification of Magee's bail. Magee's defense was that his failure to complete the work at the three victims' homes was a breach of his contractual obligations, but not a criminal offense. Schindler claimed it could not prepare that defense without Magee's help in gathering documents and other materials that were voluminous and had to be assembled and reviewed prior to trial. On May 4, 2016, the trial court modified Magee's bail to allow his release to assist Schindler with trial preparation.

After several continuances, Magee's trial was scheduled for October 31, 2016. The trial court summarized:

[Magee]'s cases were first listed for trial in December 2015 and subsequently continued by [Schindler] seven times. Each time a Motion for Continuance was submitted, the reason given by [Schindler] was that more time was needed for review of [Magee]'s documents in preparation for trial. The last continuance request and Order dated August 12, 2016 states, "additional time needed for trial preparation; date certain for commencement of trial: Tuesday, September 20, 2016; counsel attached for trial beginning on that date[.]" The attorney for the Commonwealth realized within a day or two of that Continuance Order that [he] was unavailable in September, so the parties agreed to a special listing for trial and attachment of counsel. That notice of attachment for a four day trial commencing October 31, 2016 was sent to [Schindler] by Court Administration on August 17, 2016.

Trial Ct. Op., 11/16/16, at 2 (emphasis in original).

On October 14, 2016, two weeks before Magee's trial was scheduled to begin, Schindler filed a motion to withdraw as Magee's counsel. In that motion, Schindler represented that most, but not all, of the fixed fee under its letter agreement with Magee had been paid; it had offered to perform additional services for Magee, including trial representation, in exchange for an additional fee; and Magee had replied that he was unable to pay an additional fee. Mot. to Withdraw at ¶¶ 6, 10, 11. Schindler also averred that it had "given reasonable warning" to Magee that if it did not receive an additional fee, it would withdraw as counsel. Id. at ¶ 13.

On October 18, 2016, the trial court held a hearing on Schindler's motion to withdraw. Magee arrived late for the hearing.³

Before Magee arrived, Attorney Pavloff told the court that he had given Magee a copy of the motion to withdraw but did not know Magee's position on it. N.T., 10/18/16, at 2. Pavloff further represented that Magee had paid "almost all" of the fixed fee under the agreement, but had not paid for trial. Id. at 3. When the court reminded Pavloff that Magee's case was "specially listed long ago," Pavloff responded that, although "we have known for some time it's a trial," he expected either that Schindler would be paid an additional fee for trial or that the case would be resolved through a plea agreement. Id.

When Magee arrived, Pavloff asked Magee if he opposed Schindler's motion, and Magee responded, "No, not at all." N.T., 10/18/16, at 9. Magee said that, starting the previous week, he had begun consultations with three other attorneys. Id. When the court asked how he could pay another attorney when he could not afford to pay Schindler, Magee responded, "Have to go to work." Id. at 10. The trial court expressed concern that Magee would not be able to pay any attorney and would be ineligible for a public defender because he was working. Id.

The Commonwealth opposed the motion to withdraw because it would delay the trial. The Commonwealth pointed out that it had already subpoenaed twelve witnesses and would be ready for trial on the scheduled October 31, 2016 trial date. N.T., 10/18/16, at 5. The Commonwealth was not optimistic about a possible plea bargain. Id. At the end of the hearing, the trial court took the matter under advisement.

The next day, October 19, 2016, the trial court issued an order denying Schindler's motion to withdraw. In a footnote, the trial court explained its reasoning, emphasizing the following facts:

1. [Schindler] stated to the court and averred in [its] Motion that [it] has been mostly compensated for [its] work to date. We note [Schindler] did not aver the sum owed, the sum paid, or the work that has not been compensated.⁴

2. [Schindler] seeks to withdraw two weeks prior to the commencement of a specially scheduled, discovery intensive jury trial set to commence on October 31, 2016. We note that the special date was issued to the parties on August 17, 2016.

3. [Schindler] does not state in [its] Motion how notice was given or when [it] gave notice to [its] client about [its] desire to withdraw and therefore, we cannot assess whether sufficient notice was given to [Magee]. Counsel did indicate that he was unaware of his client's position on the Motion and therefore we can assume that he had not had any discussions with his client on the topic.

Order, 10/19/16, at 2–3. The court concluded that Schindler "waited until the last minute to make the court aware of [its] issues with [its] client," and "failed to take steps to avoid the foreseeable prejudice of delaying trial, and delaying the ability of [its] client to employ other counsel prior to the jury trial date of October 31, 2016." Id. at 3.

On October 27, 2016, Schindler filed a notice of appeal. By an order entered December 13, 2016, this Court directed Schindler to show cause why the appeal should not be quashed as interlocutory. Schindler filed a response in which it contended that the trial court's order denying the motion to withdraw was a collateral order appealable under Pa.R.A.P. 313. On January 6, 2017, this Court discharged the show-cause order and deferred resolution of the appealability issue to this panel.

On February 6, 2017, Schindler filed its brief, in which it includes the collateral order issue as the first of three questions presented:

Does the Superior Court have jurisdiction to review the current matter as an appeal as of right from a collateral order pursuant to Pa.R.A.P. 313 ?

Did the lower court commit an error of law and/or an abuse of discretion when it failed to grant an unopposed Motion for Leave to Withdraw as Counsel prior to trial where the undisputed testimony indicated that the client agreed and understood that: he had engaged Counsel only to represent him up to—but excluding trial, he had not paid Counsel in full under that original engagement, had not retained Counsel for representation at trial, and did not oppose Counsel's withdrawal?

Did the lower court commit an error of law and/or an abuse of discretion when it denied Counsel's Motion to Withdraw in a criminal matter on the basis of erroneous conclusions and inferences drawn from "omissions" in the factual record and its own conclusion, unsupported by the testimony presented, that the client was not given "reasonable warning" about Counsel's intention to withdraw prior to the commencement of trial?

Schindler's Brief at 10–11.

Jurisdiction

Schindler contends that the trial court's order denying its motion to withdraw is a collateral order appealable under Rule 313(b). The Commonwealth agrees. See Commonwealth's Brief at 7–8.⁵ "Whether an order is appealable under Pa.R.A.P. 313 is a question of law. As such, our standard of review is de novo and our scope of review is plenary." Rae v. Pa. Funeral Dir. Ass'n , 602 Pa. 65, 977 A.2d 1121, 1126 n.8 (2009).

The Supreme Court of Pennsylvania has explained:

Otherwise known as the collateral order doctrine, [Appellate] Rule 313(b) provides that an interlocutory order is collateral and, therefore, immediately appealable, if it is: "[1] separable from and collateral to the main cause of action where [2] 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."

K.C. v. L.A. , 633 Pa. 722, 128 A.3d 774, 777 (2015) (quoting Pa.R.A.P. 313(b) ). "With regard to the first prong of the collateral order doctrine, an order is separable from the main cause of action if it is entirely distinct from the underlying issue in the case and if it can be resolved without an analysis of the merits of the underlying dispute." Id. at 778 (quotation marks and citation omitted). With regard to the second prong, "a right is important if the interests that would go unprotected without immediate appeal are significant relative to the efficiency interests served by the final order rule. Notably, the rights involved ... must be deeply rooted in public policy going beyond the particular litigation at...