Giddings, C. v. Elmore, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTOPHER L. GIDDINGS, ESQUIRE, IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS AN AGENT PENNSYLVANIA
AND/OR PRINCIPAL OF CHRISTOPHER L.
GIDDINGS, P.C.
Appellee
v.
DANNY ELMORE, ESQUIRE
INDIVIDUALLY AND AS AN AGENT
AND/OR PRINCIPAL OF ELMORE, PUGH &
WARREN, P.C. AND JEFFREY B. KILLINO,
ESQUIRE INDIVIDUALLY AND AS AN
AGENT AND/OR PRINCIPAL OF THE
KILLINO FIRM, P.C.
APPEAL OF: JEFFREY B. KILLINO,
ESQUIRE
No. 312 EDA 2014
Appeal from the Order October 16, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1212
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 11, 2015
Jeffrey Killino, Esquire, appeals from the order of the Court of Common
Pleas of Philadelphia County dated October 16, 2012, which granted
Appellee Christopher Giddings, Esquire’s, motion for costs and expenses
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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connected to discovery in aid of execution in the amount of $10,048.00 and
$500.00 for counsel fees. Upon careful review, we quash the appeal.
This case arises out of a dispute between attorneys over counsel fees
in a matter that settled for $4.5 million, Jordan v. Nazareth Hospital, et
al, Philadelphia CCP, February Term 2008; No. 1054. On July 12, 2010,
Giddings filed a complaint in declaratory judgment seeking an order directing
Killino to pay him an agreed upon referral fee of 33 1/3 percent of the
attorney fee in Jordan. As the matter progressed, the court granted
Giddings’ motion to compel interpleader, denied Killino’s motion for
summary judgment, and on June 28, 2011, granted Giddings’ motion for
summary judgment and ordered Killino to pay Giddings $550,333.33
immediately.
On July 5, 2011, Killino filed an appeal to this Court. However, he did
not file “with the clerk of the lower court . . . appropriate security in the
amount of 120% of the amount found due to the lower court and remaining
unpaid,” as required by Pa.R.A.P. 1731(a). Accordingly, there was no
automatic supersedeas. Because Killino did not pay the amount owed, and
there was no supersedeas, on July 29, 2011, while the appeal was pending,
Giddings issued writs of execution against Killino’s real estate, bank accounts
and personal property. On November 11, 2011, Giddings filed a motion for
reimbursement of fees associated with the issuance of the writs.
On September 7, 2012, this Court affirmed the grant of summary
judgment in favor of Giddings. Giddings v. Elmore, 60 A.3d 846 (Pa.
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Super. 2012) (unpublished memorandum). Giddings then informed the trial
court of the affirmance, and requested that the court rule on his outstanding
motion for reimbursement. The court scheduled argument for October 16,
2012.
On October 9, 2012, Killino filed a petition for allowance of appeal of
this Court’s order.
The argument on Giddings’ motion took place as scheduled on October
16, 2012, but Killino did not appear. The trial court issued an order on that
date ordering Killino to pay $10,048.00 for costs and fees related to
discovery in aid of execution and $500.00 for preparation and filing of the
motion. Killino filed a motion for reconsideration on October 18, 2012.
By order dated October 29, 2013, the Pennsylvania Supreme Court
denied Killino’s petition for allowance of appeal from this Court’s order
granting summary judgment. Giddings v. Elmore, 60 A.3d 846 (Pa.
2013). Shortly thereafter, Killino filed another motion for reconsideration,
which the trial court denied on December 12, 2013. On December 18, 2013,
Killino filed a notice of appeal from the October 16, 2012 order for costs and
fees and the December 12, 2013 order denying his motion for
reconsideration.
On appeal, Killino raises the following issues for our review:
1. Did the trial court commit an error of law and/or abuse its
discretion when it granted . . . Giddings[’] . . . motion for
costs and fees while the case was under appeal and in
deferred status?
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2. Did the trial court commit an error of law and/or abuse its
discretion when it did not decide . . . Gidding[’s] . . . motion
for costs and fees on the merits, as . . . Killino . . . had
already properly shown cause for denial of the motion for
costs and fees prior to the October 2012 hearing?
3. Did the trial court commit an error of law and/or abuse its
discretion when it awarded . . . Giddings . . . costs that he
was prohibited from recovering?
4. Did the trial court commit an error of law and/or abuse its
discretion when it awarded . . . Giddings . . . attorney’s fees
that he was prohibited from recovering?
5. Did the trial court commit an error of law and/or abuse its
discretion when it awarded . . . Giddings . . . exorbitant
attorney’s fees?
Appellant’s Brief at 4.
Killino’s December 18, 2013 notice of appeal states that he appeals
from the October 16, 2012 order granting Giddings’ motion for recovery of
expenses and the subsequent December 12, 2013 order denying
reconsideration. As an initial matter, we note that the order denying
reconsideration is not appealable. “Pennsylvania case law is absolutely clear
that the refusal of a trial court to reconsider . . . a final decree is not
reviewable on appeal.” Provident Nat’l Bank v. Rooklin, 378 A.2d 893,
897 (Pa. Super. 1977). Accordingly, we focus exclusively on the October 16,
2012 order.
Killino raises two related arguments, both of which we are constrained
to reject. First, he asserts that the trial court erred in granting Giddings’
motion for reimbursement while the grant of summary judgment was on
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appeal and second, he argues that his December 18, 2013 notice of appeal
from the October 16, 2012 order was timely filed.
Killino relies on the general rule that “after an appeal is taken . . . the
trial court or other government unit may no longer proceed further in the
matter.” Pa.R.A.P. 1701(a). However, Pa.R.A.P. 1701(b) provides that
“after an appeal is taken . . . the trial court . . . may . . . take other action . .
. otherwise ancillary to the appeal.” Pa.R.A.P. 1701(b). Rule 1701(c)
clarifies that “where only a particular item, claim or assessment adjudged in
the matter is involved in an . . . appeal . . . the appeal . . . shall operate to
prevent the trial court . . . from proceeding further with only such item,
claim or assessment.” Pa.R.A.P. 1701(c). Accordingly, the only issues the
trial court was precluded from addressing during the pendency Killino’s
appeal were those related to the entry of summary judgment in favor of
Giddings.
In Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1 (Pa.
2013), an automobile manufacturer argued that Rule 1701(b) precluded the
trial court from acting on a counsel fee petition while the case was on
appeal. Our Supreme Court disagreed because “Pennsylvania law is well
established that a petition for attorneys’ fees is an ancillary matter, which
the trial court retains authority to decide after entry of judgment on the
verdict.” Id. at 49. See also Old Forge School Dist. V. Highmark, 924
A.2d 1205 (Pa. 2007) (motion for attorneys’ fees constitutes separate
matter properly addressed by trial court while underlying matter on appeal).
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Giddings’ motion for reimbursement was an ancillary matter involving
costs and fees related to his attempt to execute on the summary judgment
award. Although Killino filed a timely appeal of the award, he did not file
“appropriate security in the amount of 120% of the amount found due by
the lower court and remaining unpaid,” Pa.R.A.P. 1731(a), and accordingly,
there was no automatic supersedeas. With no stay in place, Giddings was
entitled to execute on the judgment despite the pendency of an appeal.
Accordingly, the trial court had jurisdiction to enter the October 16, 2012
order for costs and fees related to executing on the judgment.
The October 16, 2012 order was a final order because it “dispose[d] of
all claims of all parties,” Pa.R.A.P. 341(b)(1), and accordingly, a notice of
appeal had to be “filed within 30 days after the entry of the order.”
Pa.R.A.P. 903(a). However, Killino did not file a notice of appeal until
December 18, 2013, apparently believing that his July 5, 2011 appeal to this
Court and his subsequent petition for allowance of appeal to the Supreme
Court on October 9, 2012 acted to stay any action on Giddings’ motion for
reimbursement. As explained herein, this conclusion was mistaken.
Under Rule 903(a), Killino had until November 16, 2012 to file a notice
of appeal. Mindful that “the court may not enlarge the time for filing of a
notice of appeal,” Pa.R.A.P. 105(b), we are constrained to quash Killino’s
appeal.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2015
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