Spirit of the Avenger Ministries v. Commonwealth

767 A.2d 1130, 2001 Pa. Commw. LEXIS 33

• Court: Commonwealth Court of Pennsylvania
• Decided: January 25, 2001
• Status: Published

Opinions

KELLEY, Judge.¹

The Spirit of the Avenger Ministries (Ministries) appeals pro se from a decision and order of the Board of Finance and Revenue (Board) of the Pennsylvania Department of Revenue (Department). That decision affirmed the decision of the Department’s Board of Appeals which, in turn, affirmed the Department’s Tax Exempt Unit’s (Tax Exempt Unit) denial of the Ministries’ application for tax exempt status as a charitable organization under the Institutions of Purely Public Charity Act (Act).² We quash the appeal.

As noted in the opinion filed by the Board in this case, the Ministries began operations on November 1, 1997, and it is currently organized as a non-profit association. The order underlying the instant appeal is the Board’s affirmance of the denial of the Ministries’ application for tax-exempt status.

It is well settled that, with a few exceptions not applicable here, non-attorneys may not represent parties before the Pennsylvania courts and most admininstrative agencies. Shortz v. Farrell, 327 Pa. 81, 193 A. 20 (1937); Nolan v. Department of Public Welfare, 673 A.2d 414 (Pa.Cmwlth.1995), petition for allowance of appeal denied, 546 Pa. 650, 683 A.2d 887 (1996); McCain v. Curione, 106 Pa.Cmwlth. 552, 527 A.2d 591 (1987). As the instant matter is the Ministries’ appeal of the denial of its application, it may not be represented by its pastor, a non-attorney, in this appeal in this Court. See Smaha v. Landy, 162 Pa.Cmwlth. 136, 638 A.2d 392, petition for allowance of appeal denied, 539 Pa. 660, 651 A.2d 546 (1994) (A nonprofit medical corporation must have counsel in order to proceed in a court action as a corporation cannot represent itself.); Walacavage v. Excell 2000, Inc., 331 Pa.Super. 137, 480 A.2d 281 (1984) (A corporation may not appear in court and be represented by a corporate officer and shareholder who is not an attorney.).³

Thus, this Court is without jurisdiction to consider the claims raised by Pastor Michael T. Orth in the instant appeal as he is not licensed to practice law in this Commonwealth. McCain; Expressway Associates II. As a result, the appeal must be dismissed. See McCain, 527 A.2d at 594 (“In view of the prohibition against non-lawyers representing parties in judicial proceedings, we are compelled to sustain the Board’s challenge to McCain’s motion for summary relief and supporting brief as not in conformity with [the] law. In Winters [v. Sheporwich, 83 Pa. D. & C. 484, 486 (C.P. Luzerne 1930) ], the Luzerne County Common Pleas Court held that proceedings commenced by persons unauthorized to practice law are a nullity ... The Erie County Common Pleas Court reached the same conclusion in Goldstein [v. Marriott, 14 Pa. D. & C. 635 (C.P. Erie 1930) ]. In Thomas [v. Estelle, 603 F.2d 488, 489 (5th Cir.1979) ], the Fifth Circuit Court of Appeals held that it was without jurisdiction to consider a civil rights complaint filed on behalf of a prisoner by another prisoner who was not licensed to practice law ... By that same reasoning, we are convinced that we are without jurisdiction to consider arguments and motions made on behalf of a prisoner in a civil action that are filed by another prisoner who is not licensed to practice law ... ”). See also Expressway Associates II, 34 Conn.App. at 551, 642 A.2d at 66-67 (“We therefore hold that an individual who is not an attorney and who is a general partner of a partnership may not appear and participate, pro se, in an appeal on behalf of a general partnership. Because the appeal was filed by [the general partner], pro se, on behalf of the partnership, the appeal must be dismissed.”) (footnote omitted).⁴

Accordingly, the instant appeal is quashed.

ORDER

AND NOW, this 25th day of January, 2001, the appeal, at No. 237 F.R.1999, is quashed.

1 . This matter was reassigned to the author on October 31, 2000.

2 . Act of November 26, 1997, P.L. 508, 10 P.S. §§ 371-385.

3 . See also United States v. Cocivera, 104 F.3d 566 (3rd Cir.1996), cert. denied, 520 U.S. 1248, 117 S.Ct. 1861, 137 L.Ed.2d 1062 (1997) (Permitting corporations to be represented by their non-attorney chief executive officer/controlling shareholder in criminal proceedings violated the Sixth Amendment right to counsel even though the officer/shareholder was permitted to proceed pro se on the criminal charges lodged against him.); In re America West Airlines, 40 F.3d 1058 (9th Cir.1994) (Non-attorney members of a partnership could not appear in bankruptcy court on behalf of the partnership as corporations and other unincorporated associations must appear in court through an attorney.); The Church of the New Testament v. United States, 783 F.2d 771 (9th Cir.1986) (Unincorporated associations, like corporations, must appear through an attorney; except in extraordinary circumstances, they cannot be represented by laypersons.); Clean Air Transport Systems v. San Mateo County Transit District, 198 Cal. App.3d 576, 243 Cal.Rptr. 799, cert. denied, 488 U.S. 862, 109 S.Ct. 160, 102 L.Ed.2d 130 (1988) (A member of an unincorporated association who is not an attorney could not represent the association in court.); Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 34 Conn.App. 543, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994) (An individual who is not an attorney and who is a general partner of a partnership may not appear and participate, pro se, in an appeal on behalf of the partnership.); State ex rel. Stephan v. Williams, 246 Kan. 681, 793 P.2d 234 (1990) (A voluntary unincorporated association of individuals without a separate legal status could be represented in court only by a duly licensed attorney admitted to practice law.); State v. Settle, 129 N.H. 171, 523 A.2d 124 (1987) (An officer of an unincorporated association, who is not an attorney, may not appear in court on behalf of the association.); Oregon Peaceworks Green, PAC v. Secretary of State, 311 Or. 267, 810 P.2d 836 (1991) (The treasurer of a political action committee, a non-attorney, was not empowered to represent the committee before the state courts.).

4 . Although neither party has raised this issue, this Court has the obligation to raise the issue of its jurisdiction to hear an appeal sua sponte. Contact II, Inc. v. Pennsylvania Horse Racing Commission, 664 A.2d 181 (Pa.Cmwlth.1995); Department of Transportation v. Kmetz, 129 Pa.Cmwlth. 97, 564 A.2d 1040 (1989), petition for allowance of appeal denied, 525 Pa. 638, 578 A.2d 931 (1990).