Frezghi, H. v. Tesfamariam, A.

2022 Pa. Super. 101

• Court: Superior Court of Pennsylvania
• Decided: June 2, 2022
• Docket: 1845 EDA 2021
• Status: Published

Opinion

J-S09004-22

2022 PA Super 101

HABTE Z. FREZGHI : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ADHANOM K. TESFAMARIAM, AND : ASMERET M. GEBREHIWOT : : No. 1845 EDA 2021 Appellants :

Appeal from the Order Entered August 17, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 191201113

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

OPINION BY LAZARUS, J.: FILED JUNE 02, 2022

Adhanom K. Tesfamariam and Asmeret M. Gebrehiwot (Defendants)

appeal from the order, entered in the Court of Common Pleas of Philadelphia

County, granting Habte Frezghi’s (Plaintiff) post-trial motion, in part,1 and

ordering a new trial. After our review, we reverse the trial court’s order

granting a new trial. However, we remand the matter, without prejudice, to

allow the Plaintiffs to file appropriate pleadings, if any, and to caution the trial

court that it must not allow the unauthorized practice of law.

On December 6, 2019, Plaintiff filed an action in quiet title/fraudulent

conveyance of the properties located at 318 S. 52nd Street (318) and 324 S.

52nd Street (324) in Philadelphia. Plaintiff’s complaint alleged Defendants

____________________________________________

* Former Justice specially assigned to the Superior Court.

1The court denied Plaintiff’s request for judgment notwithstanding the verdict. See Order, 8/13/21. J-S09004-22

never paid the sale price of $58,000.00. Plaintiff’s Complaint, 12/6/19, ¶¶ 1-

4. The Defendants filed an answer and new matter, averring that: Plaintiff

never owned the 318 property and, thus, Plaintiff had no standing to quiet

title; Plaintiff was a record owner of the 324 property and he agreed to sell

that property to Defendants for $58,000.00; Plaintiff received $15,000.00

from Defendants as a deposit toward the purchase of that property; the deed

for the 324 property was transferred to Defendants and recorded in favor of

Defendants; and, Defendants sold the 324 property and no longer hold title.

Defendants’ Answer and New Matter, 2/21/20, at ¶¶ 6-21.

Following a non-jury trial, at which Plaintiff was “represented” by his

nephew, Mehari E. Tedla, a non-lawyer, the trial court entered judgment in

favor of Defendants, without prejudice to Plaintiff’s right to file appropriate

claims as to the 318 and 324 properties. See Order, 4/9/21. The court found

Plaintiff failed to submit evidence of a fraudulent conveyance of either of the

two properties.

Plaintiff filed a pro se post-trial motion, as well as a counseled post-trial

motion and amended post-trial motion.2 The trial court denied Plaintiff’s

motion for judgment notwithstanding the verdict and granted Plaintiff’s

request for a new trial. See Order, 8/17/21. On August 26, 2021, Defendants

filed a motion for reconsideration, which the trial court denied. See Order,

2 On May 5, 2021, Lopez T. Thompson, Esquire, entered an appearance on behalf of Plaintiff and filed a counseled post-trial motion and an amended post- trial motion.

-2- J-S09004-22

9/1/21. On September 13, 2021, Defendants filed this timely appeal. Both

Defendants and the trial court complied with Pa.R.A.P. 1925. Defendants raise

the following issue:

Did the trial court commit an error of law in holding that the Plaintiff’s representation by a non-attorney stripped the court of subject matter jurisdiction over the trial and hence, even though the Plaintiff did not preserve the issue by objection at trial or raise it in his post-trial motion, the issue could not be waived[,] and the court properly raised it sua sponte in granting Plaintiff a new trial?

Appellants’ Brief, at 4.

Questions of the unauthorized practice of law and the trial court’s

jurisdiction are pure questions of law, and therefore, our standard of review

is de novo and our scope of review plenary. See Harkness v.

Unemployment Comp. Bd. of Review, 920 A.2d 162, 166 n.2 (Pa. 2007).

See also Barak v. Karolizki, 196 A.3d 208, 215 (Pa. Super. 2018) (stating,

“[j]urisdiction is purely a question of law; the appellate standard of review is

de novo and the scope of review plenary”) (citation omitted).

Defendants argue Plaintiff waived the issue regarding representation by

a non-attorney at trial. Defendants contend that the trial court clearly had

jurisdiction over the fraudulent conveyance claims, see Pa. Const. art. V, § 5;

42 Pa.C.S.A. § 931(a) (“[T]he courts of common pleas shall have unlimited

original jurisdiction of all actions and proceedings, including all actions and

proceedings heretofore cognizable by law or usage in the courts of common

pleas.”), and, because representation by a non-attorney did not implicate the

-3- J-S09004-22

court’s subject-matter jurisdiction, the court could not raise the issue sua

sponte. Appellants’ Brief, at 10-12.

Plaintiff is from East Africa and speaks Tigrinya, a language his nephew,

Tedla, could speak and understand. Tedla was also designated as Plaintiff’s

power of attorney. In its order granting Plaintiff a new trial, the court

concluded that it had erred when it permitted Tedla to represent Plaintiff at

trial. The court stated:

Although [Plaintiff] gave a power of attorney to Mr. Tedla, a power of attorney does not grant a layperson the authority to represent parties in a legal proceedings. Kohlman v. Western Pennsylvania Hospital, 652 A.2d 849, 852 (Pa. Super. 1994). [] “In a civil action, the court lacks jurisdiction to consider the claims raised by a non-attorney.” David R. Nicholson, Builder, LLC v. Jablonski, 163 A.3d 1048, 1054 (Pa. Super. 2017) []. The trial court also erred in not obtaining a translator when it became apparent that one was necessary for [Plaintiff], who has a limited ability to speak or understand English. See, 42 Pa.C.S.A. § 4402 (definitions). See generally 42 Pa.C.S.A. [§§] 4401- 4417 (court interpreters for persons with limited English proficiency).

Order, 8/17/21. For the reasons that follow, we find Defendants’ argument

has merit, and we reverse.

First, the Jablonski case, on which the court relied,3 was disapproved

by our Supreme Court in Bisher v. Lehigh Valley Health Network, Inc.,

3 The Supreme Court decided Bisher four months after the trial court entered its order in this matter. See Christy v. Cranberry Volunteer Ambulance Corps, Inc., 856 A.2d 43, 51 (Pa. 2004) (changes in law are applied retroactively to cases pending on appeal); see also August v. Stasak, 424 A.2d 1328, 1330 (Pa. 1981) (“At common law, an overruling decision is normally retroactive.”).

-4- J-S09004-22

265 A.3d 383 (Pa. 2021). In Bisher, the Court held that the unauthorized

practice of law did not implicate subject-matter jurisdiction, and thus could

not be raised sua sponte. Id. at 389, 401.

In that case, Carla and Brenton Bisher, without representation by

counsel, filed suit against eleven defendants, named individuals and corporate

entities, alleging medical malpractice resulting in their son Brenton’s death.

Id. at 388. Each parent brought their own wrongful death action, and Carla

Bisher filed a survival action on behalf of her son’s estate. Id. The trial court

struck the amended complaint with prejudice due to defects in the certificates

of merit mandated by Pennsylvania Rule of Civil Procedure 1042.3. Id. On

appeal, this Court, sua sponte determined that the Bishers committed two

errors that jointly deprived the trial court of subject-matter jurisdiction over

all claims: Carla’s unauthorized practice of law, and the lack of verification of

the complaint. We also concluded that this Court lacked jurisdiction, and we

quashed the appeal. Id. at 388-89.

The Supreme Court granted allowance of appeal, see Bisher v. Lehigh

Valley Health Network, Inc., 251 A.3d 779 (Pa. 2021) (per curiam), and,

after an analysis of jurisdictional principles and a survey of the law on the

issue of the unauthorized practice of law, made clear its holding:

This issue does not implicate subject-matter jurisdiction

Our survey establishes that few courts view the participation of a non-attorney as implicating subject-matter jurisdiction. Some of our sister courts describe the unauthorized practice of law as jurisdictional but rarely, if ever, in terms of the trial court’s competency to adjudicate the controversy. The closest

-5- J-S09004-22

jurisdictional tenet involves standing, but our jurisprudence does not view standing as a jurisdictional issue subject to sua sponte intervention. As explained, our views on this subject largely align with those of the United States Supreme Court, and we agree that “[c]larity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority.” Kontrick [v. Ryan, 540 U.S. 443, 454 (2004)]. Because the participation of a non-attorney has no connection to the classes of cases that a court may hear, we hold that the unauthorized practice of law is not a subject-matter jurisdiction issue. Accordingly, we disapprove of Jablonski and other cases to the extent they suggest the unauthorized practice of law implicates subject-matter jurisdiction. That conclusion is of dispositive significance with respect to the Superior Court's ability to raise that issue sua sponte, and the court should not have quashed the appeal regarding the Estate claims or Brenton’s claims based on a perceived jurisdictional defect at the trial court level.

Id. at 405-06 (emphasis added).

Although the Court acknowledged that “a court cannot ignore the

unauthorized practice of law and must intervene[,]” it determined that this

did “not conflict with our holding that the unauthorized practice of law does

not implicate subject-matter jurisdiction.” Id. at 406.

The critical distinction is that a court’s duty to stop the unauthorized practice of law is limited to the proceedings before that tribunal. As applied here, the Superior Court properly issued an order requiring Carla to cease her activities[, and] would have been justified in dismissing all of the appellate claims pertaining to Brenton and the Estate had Carla refused to hire an attorney. Thus, the Superior Court had discretion to give Carla a reasonable period of time to obtain counsel. But its ability to prevent Carla from continuing the authorized practice of law does not extend to undoing what had already transpired at the trial court level.

-6- J-S09004-22

Id. (emphasis in original). The Court, finding “that the participation of a non-

attorney is properly characterized as a technical defect[,]” id. at 407, and

guided by the preference for adjudicating cases on the merits and the liberal

construction of rules of court, see Pa.R.C.P. 126, adopted the view that “any

instance of unauthorized practice of law is curable in the court’s discretion[.]”

Id. at 408-09.

As indicated above, the trial court’s order in this case was “without

prejudice to Plaintiff Habte Frezghi's right to file appropriate claims as to the

above referenced properties.” See Order, 4/9/21. The court recognized, and

Defendants acknowledge on appeal, that Plaintiff’s claims sounded in breach

of contract. Plaintiff filed a pro se post-trial motion on April 17, 2021, a

counseled post-trial motion two days later, on April 19, 2021, and an amended

counseled post-trial motion on April 21, 2021. On May 5, 2021, another

attorney entered an appearance on behalf of Plaintiff, and filed a notice of

appeal, which was ultimately dismissed for failure to file a docketing

statement. Order, 7/28/21. See Pa.R.A.P. 3517. Thus, instead of proceeding

with appropriate pleadings, Plaintiff filed a pro se post-trial motion and

Plaintiff’s counsel pursued appellate review, resulting in the court’s order

granting Plaintiff’s motion for a new trial.

We agree with the Defendants’ argument that the court had already

provided “a cure for the taint” of representation by a non-attorney, when it

entered judgment without prejudice to Plaintiff’s right to retain counsel and

-7- J-S09004-22

file a new complaint alleging appropriate causes of action.4 The Plaintiff’s

representation by a non-attorney did not implicate the trial court’s subject-

matter jurisdiction, and, accordingly, the trial court erred by sua sponte

invoking subject-matter jurisdiction. In light of our Supreme Court’s decision

in Bisher, we are constrained to reverse the court’s order granting a new trial,

and, as it appears the trial court has already determined the pleadings were

defective and Plaintiff is now represented by counsel, we remand for further

proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/2/2022

4 We emphasize, as did the Bisher Court, that a court cannot tolerate the unauthorized practice of law and must timely intervene. The court is obligated to take corrective action, regardless of whether the adverse party requests such action. Bisher, 265 A.3d at 406. We decline to order a new trial unless the new pleadings warrant same. By this action, we are placing both parties in the position that they would have been pre-complaint.

-8-