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HomeMy WebLinkAbout2009-8673 GARY MAXWELL, AS EXECUTOR OF : IN THE COURT OF COMMON PLEAS OF THE ESTATE OF KATHERINE : CUMBERLAND COUNTY, PENNSYLVANIA MAXWELL, : PLAINTIFF : : V. : : SUSQUEHANNA VIEW APARTMENTS : AND NATIONAL CORPORATION FOR : HOUSING PARTNERSHIPS AND : SUSQUEHANNA VIEW LIMITED : PARTNERSHIPS, : DEFENDANTS : 09-8673 CIVIL TERM IN RE: PETITION FOR RECONSIDERATION MEMORANDUM OPINION AND ORDER OF COURT Masland, J., November 23, 2011:-- Before the court is a Petition for Reconsideration filed by Plaintiff, Gary Maxwell, as Executor of the Estate of Katherine Maxwell, in response to this Court’s Order granting R.J. Marzella & Associates, P.C. Counsel’s Petition to Withdraw. For the following reasons, the Petition for Reconsideration is denied. Under Pennsylvania law, a lawyer may seek to withdraw from representation for a variety of reasons, “from ethical to financial.” Commonwealth v. Keys, 580 A.2d 386, 387 (Pa. Super. 1990). Additionally, the Pennsylvania Rules of Professional Conduct, Rule 1.16(b) provides that a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; 09-8673 CIVIL TERM (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. Pa. R.P.C. 1.16(b). “The notes to this rule provide that the lawyer's statement that professional considerations require termination of their representation th ordinarily should be accepted as sufficient.” Jones v. Bhatt, 50 Pa. D. & C. 4 544, 547 (2001). However, permission of the court to withdraw is necessary unless “another attorney has entered . . . an appearance for the party. . . . “ Pa.R.C.P. 1012(b). Furthermore, (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Pa. R.P.C. 1.16(d). In the instant case, Plaintiff received notice on May 31, 2011 that R.J. Marzella & Associates, P.C. no longer wished to represent the Estate and was told to seek substitute counsel. Plaintiff’s Counsel then requested that defense counsel take no action for the next sixty days, in order for Mr. Maxwell to obtain -2- 09-8673 CIVIL TERM new representation. This court then issued a Rule to Show Cause why such relief should not be granted, which was made returnable twenty-one days after service. No responses in opposition were filed. Therefore, Plaintiff’s Counsel filed a Motion to Make Rule Absolute on July 29, 2011. On August 31, 2011 this Court, finding no opposition, granted the motion and stayed the case for 60 days to allow Plaintiff time to obtain new counsel. Given the history of this case, Plaintiff’s Counsel successfully fulfilled their obligations under the law. Plaintiff’s Counsel gave reasonable notice of withdrawal, requested permission from the court to withdrawal, and sought additional time on behalf of the Plaintiff, upon termination of representation, so as to not adversely affect Plaintiff’s interests. Given these factors as well as the directive that a lawyer’s withdrawal based on professional considerations is ordinarily deemed sufficient, the Court finds that Plaintiff’s Counsel complied with the letter and spirit of the law. Additionally, this court finds no merit in Plaintiff’s argument that he did not receive notice of the termination of representation. Counsel advised Plaintiff that they would no longer be representing him and disclosed the reasons for this decision on May 31, 2011. Furthermore, counsel provided Plaintiff with a copy of the entire file in June 2011, which also included a copy of Counsel’s Petition to Withdraw. Accordingly, Plaintiff’s Motion for Reconsideration is denied. -3- 09-8673 CIVIL TERM ORDER OF COURT AND NOW, this _______ day of November, 2011, the motion of plaintiff, Gary Maxwell, as Executor of the Estate of Katherine Maxwell, for reconsideration of our order of August 31, 2011, which granted his counsel’s DENIED petition to withdraw, is . By the Court, __________________________ Albert H. Masland, J. Gary Maxwell, Pro se 314 Owl Bridge Road Millersville, PA 17551 Thomas J. McMahon, Esquire For Defendants Robin Marzella, Esquire :saa -4- GARY MAXWELL, AS EXECUTOR OF : IN THE COURT OF COMMON PLEAS OF THE ESTATE OF KATHERINE : CUMBERLAND COUNTY, PENNSYLVANIA MAXWELL, : PLAINTIFF : : V. : : SUSQUEHANNA VIEW APARTMENTS : AND NATIONAL CORPORATION FOR : HOUSING PARTNERSHIPS AND : SUSQUEHANNA VIEW LIMITED : PARTNERSHIPS, : DEFENDANTS : 09-8673 CIVIL TERM ORDER OF COURT AND NOW, this _______ day of November, 2011, the motion of plaintiff, Gary Maxwell, as Executor of the Estate of Katherine Maxwell, for reconsideration of our order of August 31, 2011, which granted his counsel’s DENIED petition to withdraw, is . By the Court, __________________________ Albert H. Masland, J. Gary Maxwell, Pro se 314 Owl Bridge Road Millersville, PA 17551 Thomas J. McMahon, Esquire For Defendants Robin Marzella, Esquire :saa