[J-27-2006]
`IN THE SUPREME COURT OF PENNSYLVANIA
`EASTERN DISTRICT
`
`CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER, BALDWIN, JJ.
`
`No. 30 EAP 2005
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`Appeal from the Order of the Superior
`Court entered on February 22, 2005 at No.
`135 EDA 2005, which quashed the appeal
`from the Order of the Court of Common
`Pleas of Philadelphia County, Civil Trial
`Division, entered on December 6, 2004 at
`No. 04612.
`
`ARGUED: April 3, 2006
`
`:::::::::::::::::::
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`JOSEPH VACCONE and ROSE
`VACCONE, H/W,
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`Appellants
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`v.
`
`MARC J. SYKEN, ESQUIRE,
`
`Appellee
`
`v.
`
`FRANK D. BRANELLA, ESQUIRE,
`
`Appellant
`
`OPINION
`
`MADAME JUSTICE BALDWIN
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`DECIDED: JUNE 19, 2006
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`This Appeal presents the question of whether an order disqualifying trial counsel
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`in a civil case is an interlocutory order, which is not immediately appealable. Appellants
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`Joseph and Rose Vaccone contend that the trial court erred in disqualifying their
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`counsel, Frank D. Branella, from representing them in their action against Appellee
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`Marc J. Syken. The Superior Court quashed their appeal of this order, ruling that the
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`order disqualifying counsel is interlocutory, and is not an appealable collateral order
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`

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`under Pennsylvania Rule of Appellate Procedure (“Pa.R.A.P.”) 313. We agree, and, as
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`discussed below, we hold that a trial court order disqualifying counsel in a civil case is
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`interlocutory and is not immediately appealable.
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`Appellant Joseph Vaccone (“Vaccone”) was a construction contractor, working in
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`a house in South Philadelphia on July 24, 2000, when the house collapsed. Two people
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`were killed in the accident, and Vaccone and another person were injured. Vaccone
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`and his wife Rose brought suit against Mark Leuzzi & Sons Contractors (“Leuzzi”) for
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`Vaccone’s injuries, claiming that workers for Leuzzi undermined the foundation of the
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`house while working in the basement. The other victims of the collapse filed actions
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`against Vaccone and his company, Vaccone General Contractors. The Vaccones, as
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`plaintiffs against Leuzzi, were represented by Attorney Frank Branella (“Branella”), who
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`employed Attorney Marc Syken (“Syken”) as an associate. Branella assigned Syken to
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`work on the case, and Syken became involved in settlement negotiations with Zurich
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`Insurance Company (“Zurich”), which insured both Leuzzi and Vaccone’s company.
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`Zurich was represented by the law firm of Bodell, Bove, Grace & Van Horn.
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`Attorneys Syken and Branella settled the case with Zurich on behalf of the
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`Vaccones for $35,000. Overall, Zurich paid out a $1.8 million settlement to all of the
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`victims of the accident on behalf of both of its insured companies -- Leuzzi and Vaccone
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`General Contractors.1
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`Subsequent to the settlement, Syken became employed with the firm of Bodell,
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`Bove, Grace & Van Horn, which had represented Zurich during the time that Syken was
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`
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`Although the materials before us do not include complete information on the
`1
`verdicts in the medical malpractice case, appellants state that the other injured
`defendant received a settlement amount of $105,000; the estate of one the two people
`who were killed received $1,104,000, so that the estate of the other victim would have
`received approximately $550,000.
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`representing the Vaccones as plaintiffs and negotiating with Zurich to settle the case.
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`The Vaccones then filed this suit against Syken, alleging that he had defrauded them in
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`persuading them to settle with Zurich by undervaluing their personal injury claim. The
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`reason for the fraud, claim the Vaccones, was that Syken settled their case at a low
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`value in order to obtain employment with the Bodell firm, which represented the insurer
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`Zurich.
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`Branella represented the Vaccones in their suit against Syken in the Court of
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`Common Pleas. Syken filed a third-party complaint against Branella, alleging that any
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`liability for a fraudulent settlement would be Branella’s, as he acted both as counsel of
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`record for the Vaccones in negotiating and accepting the settlement, and as Syken’s
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`employer. Branella then filed a counterclaim against Syken, alleging that Branella relied
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`upon Syken in negotiating and accepting the settlement amount for the Vaccone’s
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`damages.
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`In the Court of Common Pleas, Syken filed a Motion to Disqualify Branella as
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`counsel for the Vaccones, claiming that Branella would be a witness in the action, and
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`that his representation was a conflict of interest. The trial court (New, J.) agreed, and
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`granted the Motion to Disqualify on the grounds that Attorney Branella would be a
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`witness in the case of Vaccone v. Syken. The Superior Court, per curiam, quashed the
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`appeal as interlocutory. We granted the Petition for Allowance of Appeal, filed by the
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`Vaccones and Branella, which we treated as a Petition for Review.2 We affirm.
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`To be immediately appealable, a trial court order must be either a final order
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`under Pennsylvania Rule of Appellate Procedure (“Pa.R.A.P.”) 341, or a collateral order
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`
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`As the appeal of the trial court’s order was quashed by the Superior Court, this
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`action is properly a Petition for Review under Pa.R.A.P. 1512, and not a Petition for
`Allowance of Appeal under Pa.R.A.P. 1112.
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`[J-27-2006]
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`under Pa.R.A.P. 313.3 There is no claim here that the order disqualifying counsel is a
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`final order,4 thus we must determine whether it is a collateral order. The collateral order
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`doctrine allows for immediate appeal of an order which: (1) is separable from and
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`collateral to the main cause of action; (2) concerns a right too important to be denied
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`review; and (3) presents a claim that will be irreparably lost if review is postponed until
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`final judgment in the case. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978);
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`see also Pa.R.A.P. 313. As an exception to the rule of finality, the doctrine is to be
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`interpreted narrowly, and “each prong of the collateral order doctrine must be clearly
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`present before an order may be considered collateral.” Melvin v. Doe, 575 Pa. 264,
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`272, 836 A.2d 42, 47 (2003).
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`We have held that an order removing counsel in a criminal case is interlocutory
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`and not immediately appealable. Commonwealth v. Johnson, 550 Pa. 298, 305, 705
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`A.2d 830, 834 (1998). In Johnson, our decision highlighted the importance of avoiding
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`piecemeal litigation, and we noted that refusing to hear an appeal immediately does not
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`mean that a defendant loses his right to be heard on the issue. Rather, if the appellate
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`court were to hold that the trial court improperly disqualified counsel, the remedy would
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`be a new trial where the defendant would have his choice of counsel. This logic is
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`equally applicable in civil cases.
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`In Johnson, we recognized that the United States Supreme Court’s requirements
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`for an appealable collateral order are “substantively similar to the requirements under
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`Of course, we recognize that some interlocutory appeals may be taken as of right
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`(Pa. R.A.P. 311), or by permission (Pa.R.A.P. 312), but there is no claim that this
`appeal falls within either of these rules.
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`A final order is one that ends the litigation or disposes of all claims and parties.
`4
`In the Interest of H.S.W.C.-B & S.E.C.-B, 575 Pa. 473, 475, 836 A.2d 908, 909 (2003);
`See also Pa.R.A.P. 341(b).
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`Pennsylvania law,” and that United States Supreme Court precedent is thus appropriate
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`for us to consider in interpreting the collateral order doctrine. Id., 550 Pa. at 302, 705
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`A.2d at 832, n. 2. We decided Johnson partly because we agreed with the reasoning of
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`the United States Supreme Court in Flanagan v. United States, 465 U.S. 259, 104 S.Ct.
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`1051, 79 L.Ed.2d 288 (1984), that “disqualification orders do not satisfy the collateral
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`order exception.” Johnson, 550 Pa at 305, 705 A.2d at 834.
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`Appellants do not cite Johnson, and instead rely on Vertical Resources, Inc. v.
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`Bramlett, 837 A.2d 1193 (Pa. Super. Ct. 2003). Vertical Resources was a
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`creditor/debtor case, in which the debtor, an indigent single mother, was represented by
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`an attorney who had agreed to represent her in a fee arrangement with a maximum limit
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`of $5,000. A panel of the Superior Court decided that, under the unique facts of that
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`case, the debtor’s right to proceed would be irreparably lost if the disqualification order
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`were not immediately reviewed because she could not afford other counsel. Id. at 1200.
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`The panel concluded that the debtor’s right to be represented by counsel was a right too
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`important to be denied review, and thus appellant presented facts that met both the
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`second and third prongs of the collateral order doctrine.5 We decline Appellant’s
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`invitation to follow Vertical Resources, as we agree with the Superior Court panel that
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`that case was decided based on its own particular facts, and does not warrant a
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`wholesale application of the collateral order doctrine to attorney disqualification orders.
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`A more relevant approach would be that of the United States Supreme Court,
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`which has extended to civil cases the rule that disqualification orders do not satisfy the
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`collateral order exception. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S. Ct.
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`
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`The panel also found that the first prong of the collateral order doctrine was
`5
`satisfied, in that under the facts of that case the issues regarding disqualification were
`separate from the main action. Vertical Resources, 837 A.2d at 1199.
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`[J-27-2006]
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`2757 (1985). In Richardson-Merrell, the Court reversed a Court of Appeals ruling that it
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`had jurisdiction to entertain an appeal of an order disqualifying counsel. In an extensive
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`analysis, Justice O’Connor, writing for the majority, determined it appropriate to extend
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`the Flanagan holding to civil cases: “We hold that orders disqualifying counsel in civil
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`cases, like orders disqualifying counsel in criminal cases and orders denying a motion
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`to disqualify in civil cases, are not collateral orders subject to appeal as ‘final
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`judgments.’” Richardson-Merrell, 472 U.S. at 440, 105 S.Ct. at 2766.
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`We find the United States Supreme Court’s reasoning in Richardson-Merrell
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`persuasive, and we agree that orders disqualifying counsel in civil cases are not
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`collateral orders subject to appeal. We adopt this rule because we believe that it has
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`become necessary to remember the purpose of the finality rule, which is to avoid
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`piecemeal litigation, and not to become swallowed up in its exceptions. Orders
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`disqualifying counsel do not meet all three prongs of the collateral order doctrine. First,
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`in many cases, orders disqualifying counsel will not be separable from the merits of the
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`litigation, and that is particularly the case here where the order is based on the
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`likelihood that the attorney, Branella, would be called to testify at trial. In such a case,
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`the disqualification order is indeed inextricable from the merits of the case because it
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`would be impossible to determine the impact that the attorney’s testimony would have
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`on the outcome of the case. Second, while appellants claim that disqualification of
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`Branella would cause them hardship; this is not an important reason to deny review
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`within the meaning of the collateral order doctrine. Appellants do not contend that they
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`will be unable to find substitute counsel,6 but simply that they will be inconvenienced
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`Appellants do express concern about an e-mail and a letter sent by the attorney
`6
`for Syken, Gavin Lentz. The e-mail stated that Mr. Lentz “intends to sue any lawyer that
`enters his appearance in this frivolous case,” and the letter says “I request that you
`notify any attorney that would consider entering as counsel and continuing this litigation,
`(continued…)
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`[J-27-2006]
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`because Branella has been involved with this case from the beginning. As the Superior
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`Court has noted in Keefer v. Keefer, 741 A.2d 808, 813 (Pa. Super. Ct.1999), “Orders
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`that make a trial inconvenient for one party or introduce potential inefficiencies,
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`including post-trial appeals of orders and subsequent retrials, are not considered as
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`irreparably lost.” Finally, under the third prong of the collateral order doctrine,
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`appellants will not irreparably lose their right of review of the disqualification order if
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`appeal is delayed until after the litigation is completed. If on appeal the Superior Court
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`determines that the motion to disqualify Branella was improperly granted, that Court will
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`simply order a new trial and appellants can proceed with Branella as their attorney.
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`Appellants raise a second issue, requesting that we invoke our broad powers of
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`extraordinary jurisdiction, under 42 Pa. C. S. §726, which states:
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`Notwithstanding any other provision of law, the Supreme
`Court may, on its own motion or upon petition of any party, in
`any matter pending before any court or magisterial district
`judge of this Commonwealth involving an issue of immediate
`public importance, assume plenary jurisdiction of such
`matter at any stage thereof and enter a final order or
`otherwise cause right and justice to be done.
`We have held that “our extraordinary jurisdiction should be invoked sparingly,” and only
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`in cases involving an issue of immediate public importance, and where the record
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`clearly demonstrates petitioner’s right to relief. Washington County Com’rs v.
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`(…continued)
`that he or she will be subject to a claim by us . . . for wrongful use of civil proceedings,
`including a claim for punitive damages and counsel fees.” Exhibits H; J. While it is
`quite understandable that appellants would be disturbed by these threatening
`communications, we must presume that Appellants do not believe that they have
`undertaken a frivolous lawsuit, and, therefore, they will be able to find counsel that will
`carry on and represent them even if the trial court order disqualifying Branella is
`ultimately upheld. Such a threat cannot be a reason to refuse to disqualify counsel, or a
`reason to find that the trial court order is immediately appealable.
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`[J-27-2006]
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`Pennsylvania Labor Relations Bd., 490 Pa. 526, 533, 417 A.2d 164, 167 (1980). Here,
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`Appellants have not given us any reason to believe that the circumstances of Attorney
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`Branella’s disqualification are extreme or unusual, or are of public importance, such that
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`the general rule that we espouse here today should not apply.
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`Based on the above discussion, we find that a trial court order disqualifying
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`counsel in a civil case is an interlocutory order. Accordingly, we affirm the Superior
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`Court Order quashing the appeal as interlocutory.
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`Mr. Chief Justice Cappy, Mr. Justice Castille, Madame Justice Newman, and
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`Messrs. Justice Saylor, Eakin, and Baer join this opinion.
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`[J-27-2006]
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