Phoenix Mutual Life Insurance v. Radcliffe On Delaware, Inc.

266 A.2d 698, 439 Pa. 159, 1970 Pa. LEXIS 673
CourtSupreme Court of Pennsylvania
DecidedJuly 2, 1970
DocketAppeal, No. 19
StatusPublished
Cited by37 cases

This text of 266 A.2d 698 (Phoenix Mutual Life Insurance v. Radcliffe On Delaware, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phoenix Mutual Life Insurance v. Radcliffe On Delaware, Inc., 266 A.2d 698, 439 Pa. 159, 1970 Pa. LEXIS 673 (Pa. 1970).

Opinion

Opinion by

Mr. Justice O’Brien,

This is an appeal from a judgment in an action of mortgage foreclosure in favor of Phoenix Mutual Life Insurance Company, the plain tiff-appellee (Phoenix) and against Radcliffe On The Delaware, Inc., the defendant-appellant (Radcliffe).

The principal error alleged by Radcliffe in its appeal is that it was ordered to trial without legal counsel or adequate time to prepare a trial strategy. The following events led up to trial: The foreclosure action was commenced December 2, 1986. Phoenix gave notice of its intention to certify the case to the trial list on September 15, 1967, after pleadings had closed on August 28, 1967. However, to allow Radcliffe to explore the possibility of refinancing or selling the mortgaged property, and to allow Radcliffe’s attorney to take depositions, the case was not ordered upon the trial list.

On January 26, 1968, the law firm of Bowen & Yalimont filed a petition seeking leave to withdraw as Radciiffe’s attorneys, alleging that it had not been paid for services rendered in the past or for a retainer for future services. Leonard C. Hecht, an officer of appellant corporation, which is a family corporation comprised of Hecht and two sisters, wrote a letter to the court, dated February 4, 1968, opposing the Bowen & Yalimont petition. On February 7, 1968, Phoenix filed an answer.

On April 15, 1968, oral argument on the rule was held before the court sitting en banc with Mr. Hecht, unaccompanied by counsel, appearing on behalf of the appellant.

[162]*162On April 18, 1968, while the Bowen & Valimont petition was still under consideration, Phoenix ordered the case put upon the trial list and it was listed for trial on June 18,1968.

On April 30,1968, with the court en banc’s approval, an order was entered authorizing the law firm of Bowen & Valimont to withdraw.

After the case had been placed upon the trial list, it was scheduled for pretrial conference on May 23, 1968, but this scheduling was continued until June 11, 1968. Notice of the rescheduling was forwarded to Radcliffe and to Leonard O. Hecht.

On June 10, 1968, a member of Leonard Hecht’s brother’s law firm, Hecht, Cohen & Glantz, of Philadelphia, telephoned the Bucks County Court Administrator, seeking a continuance and advising that it had been contacted to represent the appellant. The court administrator replied that the application for a continuance should be made in person. The caller stated that the firm was not associated with local counsel, that none of its members had qualified to practice in Bucks County under Supreme Court Rule 14, but that he would contact a specified Bucks County law office. This conversation was confirmed by a letter of the same date from Harvey S. Cohen, of the Hecht firm, to the court administrator.

On June 11, the pretrial conference was held without Radcliffe being represented. At the direction of the court, the court administrator wrote Mr. Cohen, advising that an application for a continuance would not be entertained because Mr. Cohen had not entered an appearance in the case and that the case would proceed to trial on June 18, 1968.

On the morning of June 18, 1968, Mr. Leonard C. Hecht appeared in court and requested first, a continuance of the case to a later session of court and then, [163]*163a continuance to the following day, both of which requests were refused.

Mr. Hecht told the court that his brother, or a member of his brother’s firm, would represent the appellant corporation, but that appellant had no local counsel because of difficulty concerning a retainer fee. Near the close of what turned out to be a pretrial conference on June 18, Mr. Hecht, after contacting his brother, reported to the court that his brother would not be available to represent appellant on June 19, that Mr. Cohen was not registered to practice law in Bucks County, but that the Hecht law firm would have a specified Bucks County attorney present on June 19 to represent the appellant at trial.

On June 19, .1968, Mr. Hecht appeared without counsel to represent Radcliffe. At his request, he was permitted to conduct the trial on appellant’s behalf.

Appellant states that the absence of official records, which were in the hands of appellant’s former law firm until they were returned to appellant on June 18, 1968, one day prior to trial, was the primary reason why it was unable to secure legal counsel within the six-week period between withdrawal and the day of trial. Although appellant’s brief admits that it had “the additional problem of not having fluid resources available to retain counsel,” it contends that this financial difficulty was not insurmountable because certain attorneys had expressed direct interest in the case.

In its opinion, the court below explains that it refused appellant’s requests for continuance because:

“There was no adequate showing that, in the interval between the time of the withdrawal of the appearance of Bowen & Yalimont for the defendant, any bona fide effort had been made to engage local counsel; because Leonard C. Hecht had stated that his brother’s firm had undertaken the representation and yet that firm had not done anything to qualify it to practice in [164]*164Bucks County under Supreme Court Rule 14; and because a continuance would delay trial of the case for a period of five months, that is, until November 1968, without any assurances to this court that defendant would in the meantime make bona fide efforts to engage counsel.”

Appellant first argues that the court should not have permitted the law firm of Bowen & Valimont to withdraw its representation.

“Ordinarily the question of whether an attorney should be permitted to withdraw his appearance is within the discretion of the trial court and the decision of the trial court will be reversed only when plain error is committed.” Hernandez v. Japort, 416 Pa. 304, 205 A. 2d 867 (1965), C. E. Williams Co. v. H. B. Pancoast Co., 412 Pa. 166, 194 A. 2d 189 (1963).

We find no error in the instant case. The proceedings had not reached a critical stage. In fact, when the law firm of Bowen & Valimont originally filed its petition for leave to withdraw on January 26, 1968, the case had not even been placed on the trial list. Nor was the case of a controversial variety so as to make it difficult to obtain counsel. See Bierstein v. Whitman, 355 Pa. 515, 50 A. 2d 334 (1947). As such, we cannot say that Bowen & Valimont had left appellant helpless in an emergency. Spector v. Greenstein, 85 Pa. Superior Ct. 177 (1925).

The fact that appellant was not represented by an attorney at the oral argument on whether the law firm should be permitted to withdraw does not change ■the result. Appellant was aware of the impending need for substitute representation as early as January 26, 1968, when the withdrawal was filed. Phoenix had put the corporation on notice by its answer to the law firm’s petition, filed February 7,1968, that any attempt by appellant to delay the trial because of the withdrawal of appellant’s retained counsel would be op[165]*165posed.

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Bluebook (online)
266 A.2d 698, 439 Pa. 159, 1970 Pa. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phoenix-mutual-life-insurance-v-radcliffe-on-delaware-inc-pa-1970.