Pelzer, C. v. Fannick, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAINE SHEPPARD PELZER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DEMETRIUS W. FANNICK,
Appellee No. 2165 MDA 2015
Appeal from the Order Entered November 16, 2015
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 12727-2009
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2016
Appellant, Caine Sheppard Pelzer, appeals pro se from the trial court’s
order, entered on November 16, 2015, denying his request for the
appointment of counsel in his underlying civil case. After careful review, we
conclude that the order from which Pelzer appeals is interlocutory and not
otherwise appealable. Accordingly, we quash this appeal.
It is unnecessary to provide extensive details about the procedural
history underlying this appeal. We need only note that this case was
initiated when Pelzer filed a civil complaint against his former, privately-
retained attorney, Demetrius W. Fannick, Esq, who had represented Pelzer
in a prior, unrelated criminal case. In Pelzer’s complaint, he primarily raised
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*
Former Justice specially assigned to the Superior Court.
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claims sounding in legal malpractice. According to the trial court, Pelzer
mainly alleged “that he paid Fannick $5,000.00 to pursue an appeal of his
criminal conviction based on the theory of ineffective assistance of trial
counsel and Fannick failed to file a [p]etition for [relief under the] Post
Conviction Relief [Act, 42 Pa.C.S. §§ 9541-9546,] despite assurances that he
would do so.” Trial Court Opinion (TCO), 3/16/16, at 2-3. During the
course of the underlying litigation, Pelzer filed numerous requests for the
appointment of counsel, all of which were denied. See id. at 1-2. On
November 16, 2015, the court again denied a request by Pelzer for the
appointment of counsel, and Pelzer filed the instant appeal.
On January 14, 2016, this Court issued a rule to show cause why
Pelzer’s appeal should not be quashed as having been taken from an order
that is interlocutory and not yet appealable. See Per Curiam Order,
1/14/16. On February 3, 2016, Pelzer filed a pro se response, and on March
1, 2016, this Court discharged our rule to show cause, directing that “[t]he
merits panel may revisit the issue and may find that the appeal is defective.”
Per Curiam Order, 3/1/16. We also stated that Pelzer “should be prepared
to address the issue in his brief[,]” which Pelzer has done. Id. Thus, we
begin by assessing whether the court’s November 16, 2015 order is
appealable, as that question “goes directly to the jurisdiction of the Court
asked to review the order.” In re N.B., 817 A.2d 530, 533 (Pa. Super.
2003) (citing Pace v. Thomas Jefferson Univ. Hosp., 717 A.2d 539, 540
(Pa. Super. 1998)).
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“It is well-settled that, generally, appeals may be taken only from final
orders….” Commonwealth v. Blystone, 119 A.3d 306, 312 (Pa. 2015). “A
final order is any order that disposes of all claims and all parties, is expressly
defined as a final order by statute, or is entered as a final order pursuant to
the trial court's determination.” In re N.B., 817 A.2d at 533 (citing
Pa.R.A.P. 341(b)(1)-(3)). Here, Appellant concedes that the November 16,
2015 order denying his request for the appointment of counsel is a non-final,
interlocutory order. See Pelzer’s Brief at 8 (“Initially, [Pelzer] notes that the
[o]rder denying his request for appointment of counsel is technically
interlocutory.”). He argues, however, that the order is immediately
appealable under the ‘collateral order doctrine.’ For the following reasons,
we disagree.
Our Supreme Court has explained that:
[T]he collateral order doctrine permits an appeal as of right from
a non-final order which meets the criteria established in
Pa.R.A.P. 313(b). Pa.R.A.P. 313 is jurisdictional in nature and
provides that “[a] collateral order is an order [1] separable from
and collateral to the main cause of action where [2] the right
involved is too important to be denied review and [3] the
question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.”
Pa.R.A.P. 313(b).
Thus, if a non-final order satisfies each of the requirements
articulated in Pa.R.A.P. 313(b), it is immediately appealable.
However, we construe the collateral order doctrine narrowly so
as to avoid ‘piecemeal determinations and protracted litigation.
Blystone, 119 A.3d at 312 (some internal citations and quotation marks
omitted). We also note that this Court and our Supreme Court have
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previously held, in both civil and criminal cases, that orders involving the
denial or disqualification of counsel are interlocutory and do not meet the
criteria for appealability as a collateral order. See Commonwealth v.
Johnson, 705 A.2d 830 (Pa. 1998) (holding than an order disqualifying a
criminal defendant’s choice of counsel is interlocutory and not immediately
appealable); In re N.B., 817 A.2d at 535 (holding that an order denying a
mother’s right to counsel in a dependency proceeding failed to satisfy the
collateral order doctrine and, thus, was not appealable); Duttry v. Talkish,
576 A.2d 53 (Pa. Super. 1990) (holding that an order denying an indigent
petitioner’s request for appointment of counsel in an ongoing
custody/visitation case was interlocutory and not a collateral order).
Here, Appellant’s arguments do not persuade us that his case presents
a unique instance where an order denying a request for counsel in a civil
case must be considered as an appealable order. Specifically, Appellant has
not demonstrated that “the right involved is too important to be denied
review[.]” Pa.R.A.P. 313(b). Regarding this prong of the collateral order
doctrine, our Supreme Court has explained:
[F]or purposes of Rule 313(b), a right is important if the
interests that would go unprotected without immediate appeal
are significant relative to the efficiency interests served by the
final order rule. Additionally, the order [must] involve [ ] rights
deeply rooted in public policy going beyond the particular
litigation at hand, and [i]t is not sufficient that the issue is
important to the particular parties involved.
Blystone, 119 A.3d at 312 (citations and quotation marks omitted).
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Here, Appellant cannot demonstrate that the court’s order denying his
request for counsel impacts any right, let alone one that is “deeply rooted in
public policy going beyond the particular litigation at hand….” Id. “The law
is well settled that there is no right to counsel in civil cases.” Rich v.
Acrivos, 815 A.2d 1106, 1108 (Pa. Super. 2003). Appellant confusingly
suggests that he has a Sixth Amendment right to counsel in this civil case
because it is a “case within [a] case” that also involves a prior criminal
action. Appellant’s Brief at 9. Appellant does not develop any meaningful or
coherent argument to support this claim; instead, he simply makes bald
references to “the seriousness of [his] related criminal matter,” and claims
that he has a right to counsel because he “is being forced into proving that
he did not commit a crime….” Id. Appellant’s undeveloped and legally
unsupported arguments fail to prove that the court’s order denying him
counsel implicates a right that is too important for us to deny his request for
review at this juncture. Therefore, he cannot satisfy the second prong of the
collateral order doctrine.1
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1
We also point out that Appellant offers no coherent argument pertaining to
why his ability to challenge the court’s refusal to appoint him counsel will be
irreparably lost if we decline to review this issue now. We can ascertain no
reason why Appellant would not be able to assert such an argument on
appeal after final judgment is entered in this case. Accordingly, we also
conclude that Appellant failed to meet the third prong of the collateral order
doctrine.
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Because the court’s November 16, 2015 order denying Appellant
court-appointed counsel is an interlocutory order, and Appellant has failed to
prove that the collateral order doctrine applies, we quash this appeal.
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
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