Com. v. Walsh, J.

• Court: Superior Court of Pennsylvania
• Decided: September 29, 2015
• Docket: 133 WDA 2015
• Status: Unpublished

Opinion

J-S55017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES WALSH,

Appellant No. 133 WDA 2015

Appeal from the Order Entered November 14, 2014 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-MD-0000231-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 29, 2015

Appellant, James Walsh, appeals pro se from an order issued by the

trial court on November 14, 2014. Because we conclude that the order is

not final and/or appealable, we quash.

The complicated factual and procedural history of this case is

irrelevant to our disposition of Appellant’s appeal. We need only explain that

Appellant’s case involves various contempt proceedings stemming from his

failure to pay costs and fines owed to Blair County. On November 14, 2014,

the court issued the order from which Appellant now seeks to appeal. That

order: (1) continued (at Appellant’s request) the disposition of a pro se

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* Retired Senior Judge assigned to the Superior Court. J-S55017-15

petition previously filed by Appellant;1 (2) vacated/rescinded a bench

warrant that had been issued for Appellant; and (3) granted Appellant’s

counsel’s oral request to withdraw from representing Appellant.

For the following reasons, we sua sponte conclude that this order is

not final and/or appealable. See In re Miscin, 885 A.2d 558, 560-61 (Pa.

Super. 2005) (stating that “[w]e may examine the issue of appealability sua

sponte because it affects the Court’s jurisdiction over the case”). Our

Supreme Court has explained:

As a general rule, … appellate courts have jurisdiction only over appeals taken from a final order. Pa.R.A.P. 341(b) defines a final order as follows:

Definition of final order. A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) is expressly defined as a final order by statute; or

(3) is entered as a final order pursuant to subdivision (c) of this rule.

Pa.R.A.P. [] 341(b). This rule is interpreted in accordance with the plain language of its terms. Nationwide Mut. Ins. Co. v. Wickett, 563 Pa. 595, 601 n. 6, 763 A.2d 813, 817 n. 6 (2000).

Commonwealth v. Scarborough, 64 A.3d 602, 608 (Pa. 2013) (one

citation omitted).

1 In that pro se petition, Appellant sought the restoration of his right to appeal nunc pro tunc from an order issued on March 12, 2014.

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Here, the trial court’s November 14, 2014 order did three things.

First, it continued the disposition of a pro se petition filed by Appellant.

Clearly, the court’s order is not final/appealable in this regard. Second, the

order vacated/rescinded a bench warrant issued for Appellant’s arrest.

Because Appellant is not aggrieved by the court’s ordering the bench

warrant to be vacated/rescinded, he cannot appeal from that component of

the order. See Pierro v. Pierro, 252 A.2d 652, 653 (Pa. 1969) (holding

that an appeal “must be quashed[]” where the appellant was “not a party

aggrieved by the order” because he was not “adversely affected” thereby).

Third, the order granted Appellant’s counsel’s petition to withdraw.

We acknowledge that,

Rule of Appellate Procedure 313 sets forth a narrow exception to the general rule that only final orders are subject to appellate review. See Pugar v. Greco, 483 Pa. 68, 72, 394 A.2d 542, 544 (1978) (stating rule of finality). Under this exception, an interlocutory order is considered “final” and immediately 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. See Pugar, 483 Pa. at 73, 394 A.2d at 545 (setting forth test for appealable collateral order); Pa.R.A.P. 313 (codifying collateral order exception). This third prong requires that the matter must effectively be unreviewable on appeal from final judgment. See Commonwealth v. Johnson, 550 Pa. 298, 302 n. 2, 705 A.2d 830, 832 n. 2 (1998) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)). See also Commonwealth v. Myers, 457 Pa. 317, 320, 322 A.2d 131, 133 (1974) (order is not immediately appealable if it cannot be said “that ‘denial of immediate review would render impossible any review whatsoever of [the] individual's claim’” (quoting

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United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971))).

Commonwealth v. Wells, 719 A.2d 729, 730 (Pa. 1998) (footnotes

omitted).

In Wells, our Supreme Court held that an order denying defense

counsel’s request to withdraw in a collateral review proceeding under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, is not

immediately appealable under the collateral order doctrine. Wells, 719 A.2d

at 731. Similarly, in Commonwealth v. Johnson, 705 A.2d 830, 834 (Pa.

1998), our Supreme Court held that a pretrial order disqualifying counsel in

a criminal case is not immediately appealable as a collateral order. In both

Wells and Johnson, the Court reasoned that the third prong of the

collateral order test was not satisfied, because the appellant’s right to

counsel would not be irreparably lost if review of the order was postponed

until final judgment. See Johnson, 705 A.2d at 834 (“[A]n order

disqualifying counsel is reviewable after judgment of sentence. If a

judgment is obtained and it is determined on appeal that the trial court

improperly removed counsel, the right to counsel of choice is not lost. There

will be a new trial and the defendant will have his counsel of choice.”);

Wells, 719 A.2d at 731 (“[S]ince Appellant’s claimed right [to conflict-free

counsel] would not be irreparably lost if review of the order were postponed

until final judgment, the court’s order denying the Petition to Withdraw is not

appealable under the collateral order doctrine.”).

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The rationale expressed in Wells and Johnson applies in the present

case. Even assuming that Appellant has a right to counsel in the contempt-

related proceedings below, that right will not be irretrievably lost if he waits

until a final judgment is rendered to file an appeal challenging the court’s

decision to grant court-appointed counsel’s petition to withdraw.

Accordingly, as in Wells and Johnson, the court’s order granting counsel’s

petition to withdraw is not immediately appealable as a collateral order.

In sum, we conclude that no aspect of the trial court’s November 14,

2014 order renders it final and appealable. Accordingly, we quash this

appeal and remand to the trial court for further proceedings.

Appeal quashed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/29/2015

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