Duttry v. Talkish

• Decision Date: 31 May 1990
• Parties: James A. DUTTRY, Appellant, v. Lisa TALKISH, Appellee.
• Court: Pennsylvania Superior Court

Page 53

576 A.2d 53

394 Pa.Super. 382

James A. DUTTRY, Appellant, v. Lisa TALKISH, Appellee.

Superior Court of Pennsylvania.

Submitted Feb. 12, 1990.

Filed May 31, 1990.

James A. Duttry, pro se.

Lisa Talkish, pro se.

Before WIEAND, POPOVICH and MONTGOMERY, JJ.

POPOVICH, Judge:

This case involves an appeal from the May 17, 1989, order of the Court of Common Pleas of Erie Count denying a motion for the appointment of counsel by the appellant, James A. Duttry. ¹ We quash.

The record reflects the occurrence of the following events: On April 13, 1989, the appellant, an inmate in the State Correctional Institution at Pittsburgh, ² obtained an order of court permitting him to file a complaint seeking partial custody and visitation rights to his minor child (Erika). The sheriff made service of the complaint on April 17, 1989, and therein the appellant alleged that he was the natural father of the then 12-year-old child born out of wedlock to one Lisa Talkish. The child and Ms. Talkish reside with her present husband, Ernest Talkish. ³

In seeking partial custody and visitation rights, the appellant averred in his complaint that the best interest and permanent welfare of the child would be served by granting him the relief requested. In particular, the appellant asserted:

a) The plaintiff is the child's natural father, and has an unqualified right of family autonomy.

b) The child Erika Duttry had visited her father, in prison, until four years ago.

c) The father and child maintained a relationship through letters, phone calls, and visits until the mother made it impossible.

d) The child should be permitted to maintain a relationship with her father [so] that the child has a proper psychological development.

e) The plaintiff has received certain and specific informations [sic] concerning excessive illegal school absences and of school absences which are deemed not to be normal; and

f) The plaintiff has received certain and specific information concerning excessive alcohol drinking before the cild [sic] and in the household of the child.

g) The father desires to fulfill his parental responsibilities and continue to be a significant person in his daughter's life.

h) The father also desires to protect his parental rights and his daughter's rights by utilizing all available means to maintain a contact with his child.

Paragraph 9, subparagraphs (a)-(h).

To resolve the claims of the appellant, the court ordered a hearing for 10:30 a.m. on the 12th of June, 1989, at the Custody Office of the Court House. On May 15, 1989, the appellant submitted a motion for the appointment of counsel since his indigency precluded him from securing private counsel to "prepare ... or to conduct legal arguments in open court in which to ... protect his parental rights and [the] right of the child." ⁴ Paragraph 2. The appellant's request for the appointment of counsel was denied by the court below, which believed that to do so would have opened the flood-gates to every indigent's request for counsel in all cases, a situation thought by the court to be an "unduly burdensome" expense to the public. Also, the court below held that such a right and duty have not been extended to the field of civil law from the criminal arena. This appeal followed, and the appellant, acting pro se, was granted the right to proceed in forma pauperis.

Intertwined with the appellant's request that we review the denial of his motion for the appointment of counsel to aid him in his efforts to obtain partial custody/visitation rights of his minor child is the appealability of the order in question.

In this Commonwealth, the jurisdiction of the appellate courts is fixed by statute. As is applicable instantly, 42 Pa.C.S. § 742 provides in relevant part that:

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved....

The finality of an order under Section 742 has been interpreted to mean, although not literally, Foulke v. Lavelle, 308 Pa.Super. 131, 135-136, 454 A.2d 56, 58 (1982), that the order either ends the litigation or disposes of the entire case. Gerber v. Weinstock, 308 Pa.Super. 11, 13-14, 453 A.2d 1043, 1044 (1982). Phrased differently, we look to "a practical rather than a technical construction" of an order. On this subject, in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), our Supreme Court, quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), wrote:

In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (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 claimed right will be irreparably lost. Id. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536.

We applied Cohen in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), where we said: "Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications." We have also said that if the practical consequence of the order by the trial court is effectively to put an appellant "out of court" the order will be treated as final. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 [A.2d] 353, 355 (1968). Similarly, an order is "final" if it precludes a party from presenting the merits of his claim to the lower court. In re Marino's Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970).

483 Pa. at 73, 394 A.2d at 545.

The "collateral order" exception to the final judgment rule enunciated in Cohen was clarified in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), to require that to fit the exception, " 'the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.' " Lariscey v. United States, 861 F.2d 1267, 1269 (Fed.Cir.1988), quoting Coopers & Lybrand, supra, 437 U.S. at 468, 98 S.Ct. at 2457.

Of interest to this Court is that in Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), the Supreme Court held that orders disqualifying counsel in civil cases are not collateral orders subject to immediate appeal. In doing so, the Court remarked:

We acknowledge that an order disqualifying counsel may impose significant hardship on litigants. Particularly where the grounds for disqualification are troubling, this hardship may tempt courts of appeals to assert jurisdiction pursuant to § 1291. But in the words of Judge Adams:

"[I]t would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress." Bachowski v. Usery, 545 F.2d 363, 373-374 (CA3 1976).

472 U.S. at 440, 105 S.Ct. at 2766. Accord Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

Instantly, "it is quite clear to us that an order disqualifying a party's choice of counsel is not easily distinguishable from an order denying counsel." See Smith-Bey v. Petsock, 741 F.2d 22, 25 (3rd Cir.1984). As such, given the credence by our Supreme Court in Pugar v. Greco, supra, to the Cohen criteria, we see no reason not to adhere to the test discussed in Cohen, Coopers & Lybrand and Richardson-Merrell in determining the finality of the order under question here.

An examination of each of the Cohen exceptions leads this Court to conclude, as has a majority of the circuits that have addressed the issue, ⁵ that orders denying motions for the appointment of counsel in civil cases are not subject to interlocutory appeals.

Under the first tier of the Cohen exceptions, the order from which an appeal is sought must conclusively determine the disputed question. This first tier, "stated in Coopers as 'must conclusively determine the disputed question,' was restated in Firestone as 'the challenged order must constitute a complete, formal and, in the trial court, final rejection ... of a claimed right....' " Miller v. Simmons, 814 F.2d 962, 965-66 (4th Cir.1987), cert. denied, 484 U.S. 903, 108 S.Ct. 246, 98 L.Ed.2d 203 (1987).

This Court is unwilling at this stage of the civil action to view the order of the court below as one which conclusively determines the issue in question. As the Sixth Circuit Court of Appeals has written on this subject, we take guidance from its observations that:

... orders denying appointment of counsel should be presumed tentative because these motions are sometimes made before filing a complaint, ... and more frequently are made with the filing of a pro se complaint and with little or no showing of plaintiff's efforts to obtain counsel.[ ⁶ Also, there is very little in the record upon which the district judge can, for this purpose, determine whether the claim has merit. We believe a practical approach to this issue of...