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Petition of Tax Claim Bureau of Westmoreland County

Commonwealth Court of Pennsylvania

December 23, 2013

Petition of the Tax Claim Bureau of Westmoreland County, Pennsylvania, to Sell Free and Clear the Property of: Estate of Anna S. Rowley, her heirs and assigns: Being Map No. 26-02-09-0-418 Appeal of: Carl F. Miller

Submitted: November 1, 2013.



DAN PELLEGRINI, President Judge.

Carl F. Miller (Miller), pro se, appeals from an order of the Court of Common Pleas of Westmoreland County (trial court) granting the Westmoreland County Tax Claim Bureau's (Bureau) Motion to Dismiss his Petition to Vacate Judicial Tax Sale unless he obtained counsel within 60 days of that order. For the reasons that follow, we affirm the trial court's order and remand for further proceedings.

The matter arises out of a judicial tax sale of property of the Estate of Anna S. Rowley (Estate) on May 15, 2012.[1] Miller, Rowley's son in-law and the Administrator of the Estate, filed a Petition to Vacate Judicial Tax Sale (Petition) alleging various procedural deficiencies by the Bureau. The Bureau then filed a Motion to Dismiss the Petition, arguing that Miller was engaging in the unauthorized practice of law by representing the Estate, and requesting that the trial court dismiss the Petition or, alternatively, compel Miller to obtain counsel. By order dated February 28, 2013, the trial court, holding that an estate must be represented by a licensed attorney, granted the Bureau's Motion to Dismiss. However, the order provided that the Petition would be dismissed only if Miller failed to retain counsel within 60 days of the date of the order.[2]

Miller appealed the trial court's February 28, 2013 order to this Court on March 16, 2013, prior to the expiration of the 60-day period for obtaining counsel. On appeal, Miller argues that he should be permitted to proceed pro se to represent the interests of the Estate.

As a preliminary matter, we must determine whether we have jurisdiction over Miller's appeal. The Bureau argues that because the trial court's order did not dispose of the case but merely directed Miller to obtain counsel within 60 days, it is an interlocutory order that is appealable only by permission.[3] Miller contends, however, that the trial court's order is a collateral order appealable by right.[4]

As a general rule, an appellate court's jurisdiction extends only to review of final orders. Rae v. Pennsylvania Funeral Directors Association, 602 Pa. 65, 71, 977 A.2d 1121, 1124-25 (2009); Pa. R.A.P. 341.[5] However, Pa. R.A.P. 313 permits appellate review of collateral orders. An order is an appealable collateral order if it is "(1) separable from and collateral to the main cause of action, (2) implicates rights which are too important to be denied review, and (3) the appellant's claim as to that order will be lost if postponed until final judgment." Rae, 602 Pa. at 69-70, 977 A.2d at 1124. As an exception to the rule of finality, the collateral order doctrine is to be interpreted narrowly, and each prong of the doctrine must be clearly present before an order may be considered collateral. Brophy v. Philadelphia Gas Works and Philadelphia Facilities Management Corp., 921 A.2d 80, 87 (Pa. Cmwlth. 2007).

In this case, the order at issue pertains to whether a non-attorney can represent an estate. It meets the first prong of the test because it is clearly separable from and collateral to the substantive issue of whether a particular judicial sale should be vacated due to alleged procedural defects. As to the second prong, Miller's challenge to the trial court's order raises an important question regarding the scope of and a possible exception to the general rule that a non-attorney may not represent a party in court, i.e., may a non-attorney administrator represent an estate. Finally, the third prong of the collateral order doctrine is satisfied because Miller will either retain counsel and lose his opportunity to assert his alleged right to represent the estate or not retain counsel and allow the trial court to dismiss the action without ruling on the merits of the propriety of the tax sale. [6] Accordingly, because the order from which Miller appeals is a collateral order, we will address the question he raises on appeal – whether he may represent the Estate as a non-attorney.

It is well settled that with a few exceptions, non-attorneys may not represent parties before the Pennsylvania courts and most administrative agencies. Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130 (Pa. Cmwlth. 2001). See, e.g., id. at 1131 (Pastor, a non-attorney, could not represent Church in appeal of denial of its application for tax exempt status as a charitable organization); Westmoreland County v. RTA Group, Inc., 767 A.2d 1144, 1151 (Pa. Cmwlth. 2001) (real estate consulting service engaged in unauthorized practice of law by processing clients' tax assessment appeals); Smaha v. Landy, 638 A.2d 392, 397 (Pa. Cmwlth.) petition for allowance of appeal denied, 539 Pa. 660, 651 A.2d 546 (1994) (nonprofit medical corporation must have counsel in order to proceed in court action as a corporation and cannot represent itself.); Walacavage v. Excell 2000, Inc., 480 A.2d 281, 284 (Pa.Super. 1984) (corporation may not appear in court and be represented by a corporate officer and shareholder who is not an attorney).

Our Supreme Court has held that what constitutes the practice of law must be determined on a case-by-case basis, and explained that in making such a determination, a court "must keep the public interest of primary concern, both in terms of the protection of the public as well as in ensuring that the regulation of the practice of law is not so strict that the public good suffers." Harkness v. Unemployment Compensation Board of Review, 591 Pa. 543, 551, 920 A.2d 162, 167 (2007). In Harkness, the factors our Supreme Court considered in determining whether a person should be able to represent the interests of another before an administrative agency were whether the proceedings by design are intended to be brief and informal, not intended to be intensely litigated; whether the evidentiary rules apply; the amounts generally at issue in proceedings of that type; whether there is prehearing discovery; whether normally only questions of fact and not complex legal issues are involved; and whether the fact-finder is not required to be a lawyer.[7]

Although no Pennsylvania state court has applied the Harkness factors or even addressed whether a non-attorney may represent an estate, federal courts have addressed the issue.[8] First, in Williams v. USP-Lewisburg, No. 3:CV-09-1715 (M.D. Pa. Dec. 11, 2009), the District Court for the Middle District of Pennsylvania, in holding that a non-attorney could not represent a family member's estate, explained:

Like a corporation, an estate can only act through an agent; in this case, an administrator. An estate by its very nature cannot represent itself and, therefore, must be represented by a licensed attorney, regardless of the relation between the administrator and the decedent. To permit an unlicensed lay administrator to appear pro se would be to permit the unauthorized practice of law.

Id. slip op. at 3 (citing McCants v. Village of Broadview, No. 93 C 3657 (N.D. Ill., March 28, 1994), slip op. at 1-2). Moreover, in Pridgen v. Andresen, 113 F.3d 391 (2nd Cir. 1997), also cited by the trial court, the Second Circuit held that "an administratrix or executrix of an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant." Id. at 393. The Court explained that in such instances, "the action cannot be described as the litigant's own, because 'the personal interests ...

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