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PAUL SILVER v. DAVID A. DOWNS (01/30/81)

decided: January 30, 1981.

PAUL SILVER, SUPERVISOR OF THE TOWNSHIP OF BUCKINGHAM, AND DONALD W. PARKER, SUPERVISOR OF THE TOWNSHIP OF BUCKINGHAM, PETITIONERS,
v.
DAVID A. DOWNS, SUPERVISOR, WILLIAM H. YERKES, III, FORMER SUPERVISOR, DUNCAN E. BEATON, FORMER AUDITOR, EDWARD L. REIM, FORMER SUPERVISOR, W. EARL ROCKAFELLOW, FORMER SUPERVISOR, JULIAN P. PERRY, FORMER SUPERVISOR AND OTHERS AND THE HONORABLE ISAAC S. GARB, JUDGE OF COURT OF COMMON PLEAS OF BUCKS COUNTY, RESPONDENTS



No. 543 E.D. Misc. Dkt. 1980

COUNSEL

Peter Hearn, Sally Akan, Joseph J. Serritella, Lynne E. Delanty, Pepper, Hamilton & Scheetz, Philadelphia, for petitioners.

Donald B. McCoy, Newtown, for respondents.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion.

Author: Kauffman

[ 493 Pa. Page 52]

OPINION

Before us is a petition for review of an order of the Court of Common Pleas of Bucks County disqualifying the solicitor of Buckingham Township from representing petitioners, two township supervisors who are defendants in a recall action brought under Section 503 of the Second Class Township Code, 53 P.S. § 65503 ("Section 503").*fn1 Respondents are the

[ 493 Pa. Page 53]

    named plaintiffs in the recall action and the trial judge from whose order review is now sought. Respondent David A. Downs ("Downs") is, like petitioners Paul Silver ("Silver") and Donald W. Parker ("Parker"), a sitting supervisor on the current three-person Board of Supervisors of Buckingham Township ("Board").

The recall complaint, filed on February 4, 1980, questions a variety of governmental actions taken by Silver and Parker in their official capacities, primarily focusing on the handling of township accounts and spending. No allegation has been made, however, of fraud, embezzlement, or other criminal conduct. The township solicitor undertook to defend Silver and Parker in accordance with her understanding of Section 582 of the Second Class Township Code, 53 P.S. § 65582 ("Section 582"), which provides in pertinent part:

The township solicitor, when directed or requested so to do, shall . . . defend all actions or suits against the township, or any officer thereof, wherein or whereby any of the estates, rights, privileges, trusts, ordinances, or accounts, of the township, may be brought in question before any court in the Commonwealth . . . (Emphasis supplied)

Approximately one week after the recall complaint was filed, Downs made a written request to the township solicitor for legal advice on matters directly pertaining to the questions of township governance raised in the complaint. Noting Downs' role as lead plaintiff in the recall action in which she represented the defendants, the solicitor sought instructions from the Board on whether she should respond to his inquiry.

[ 493 Pa. Page 54]

On the same day that the solicitor's request was transmitted to the Board, respondents filed a motion to disqualify the solicitor and her law firm from representing petitioners in the recall action, alleging a conflict based upon her prior attorney-client relationship to Downs in his official capacity as a township supervisor, and alleging that her representation of Silver and Parker in the recall action would deprive Downs of her counsel in Board matters. When petitioners sought to depose Downs in an effort to establish a factual record to challenge these allegations, Downs refused to appear. After several unsuccessful attempts to reschedule his deposition, petitioners moved for an order to compel Downs to appear. Respondents' counsel, in turn, sought and obtained a Rule to Show Cause why a protective order should not be issued, returnable May 27, 1980.

On the return date, a hearing was held on the discovery motions, and, despite petitioners' objection that no evidentiary record yet had been made, arguments also were heard on the merits of the disqualification motion. Without ruling on either petitioners' motion to compel discovery or respondents' motion for a protective order, and without explanation, the trial judge entered an order disqualifying the solicitor and her law firm from representing petitioners in the recall action.

Petitioners thereafter requested that the trial judge: (1) withdraw his order pending a determination of the propriety of using public funds to retain other counsel, or (2) certify his order for interlocutory appeal to this Court, or (3) stay proceedings in the recall action pending any review petitioners might seek in this Court. These requests were rejected, again without opinion, on July 3, 1980. The petition now before us was filed on August 4, 1980, and an application for stay was filed on August 13, 1980. The following day this writer entered an order staying all proceedings, directing the trial court to file an opinion setting forth the basis for its orders of May 27 and July 3, and scheduling the matter for oral argument.

[ 493 Pa. Page 55]

I

Respondents contend initially that since the trial court refused to certify the question of disqualification for interlocutory appeal, this Court lacks jurisdiction to consider the present petition. We disagree. Under Rule 1311 of the Pennsylvania Rules of Appellate Procedure, adopted pursuant to Section 702(c) of the Judicial Code (42 Pa.C.S.A. § 702(b)), interlocutory appeals may be taken by permission of an appellate court upon the lower court's ...


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