In Re: Weinberg, S., Appeal of: Antin, L.

• Court: Superior Court of Pennsylvania
• Decided: November 2, 2023
• Docket: 940 WDA 2022
• Status: Unpublished

Opinion

J-A22032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: SHIRLEY WEINBERG : IN THE SUPERIOR COURT OF REVOCABLE TRUST DATED JANUARY : PENNSYLVANIA 27, 2011 : : : APPEAL OF: LISA A. ANTIN, : BENJAMIN ANTIN, AND JASON : ANTIN : No. 940 WDA 2022

Appeal from the Order Entered August 4, 2022 In the Court of Common Pleas of Allegheny County Orphans’ Court at No(s): 02-19-5237

BEFORE: BOWES, J., OLSON, J., and KING, J.

CONCURRING MEMORANDUM BY BOWES, J.: FILED: November 2, 2023

I agree with the learned majority that this appeal should be quashed

because the authority supporting an immediate appeal from the denial of

disqualification of counsel does not apply. Since Appellees’ counsel did not

previously represent any of Appellants, there is plainly nothing indicating that

Appellants have an important right too important to be denied immediate

review or that the claim will be lost if review is delayed. I write separately to

note my concern about the conduct of Appellants’ counsel, Jones, Gregg,

Creehan, & Grace, LLP (hereafter “Jones Gregg”) revealed by our jurisdictional

assessment.

As the majority aptly observes, all the cases Jones Gregg cited in

support of the disqualification motion and this appeal involved instances of

prior representation by counsel of parties that ultimately ended up on the

other side of the case. Such is not the situation here. See Majority J-A22032-23

Memorandum at 7-8. Jones Gregg proffered no authority that even suggested

that a disqualification claim has merit outside the situation where the attorney

previously represented the opposing party to the matter at hand, or for the

novel proposition that Appellants were in a position to assert such a claim on

behalf of Appellees. Moreover, Appellees all gave informed consent to the

joint representation after their attorney concluded that the representation was

not prohibited by law, that the clients had no claims against each other, and

that he could provide competent and diligent representation to each of the

clients.1 See Majority Memorandum at 2 n.2; Response to Motion to

Disqualify, 10/21/22, at Exhibit B.

Rules of Professional Conduct mandate that attorneys not proceed in the

face of frivolous claims. See Pa.R.P.C. 3.1. Not only does the pursuit of

frivolous issues violate the rules that govern the legal profession, but it also

exposes counsel and their clients to a potential claim for attorney’s fees. See

Lundy v. Manchel, 865 A.2d 850, 857 (Pa.Super. 2004) (“Because we

conclude that Lundy’s current appeal lacks any basis in law or in fact, counsel

fees shall be assessed by the lower court under [Pa.R.A.P.] 2744.”).

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1 Since Jones Gregg represents all Appellants, namely the settlor’s daughter

Lisa Antin, and her two sons who were scriveners of trust documents, Jones Gregg’s choice to pursue the claim that there is a disqualifying conflict for one attorney to represent the settlor’s son and his four sons is at least ironic, if not “rife with . . . hypocrisy” as the Weinberg grandsons assert. See Grandsons’ brief at 5.

-2- J-A22032-23

Here, Jones Gregg asserted and appealed a disqualification claim that

had no basis in law or fact. That is the very definition of frivolousness. See,

e.g., Wallace v. State Farm Mut. Auto. Ins. Co., 199 A.3d 1249, 1257

n.12 (Pa.Super. 2018) (“[A]n appeal is not frivolous simply because it lacks

merit; rather, it must be found that the appeal has no basis in law or fact.”

(cleaned up)). In my view, this case teeters dangerously close to the line

beyond which lies the potential for disciplinary action. I caution counsel to

make wiser decisions as this case progresses in the trial court and the

seemingly inevitable future appeals.

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