Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Appeal of Silverman

Commonwealth Court of Pennsylvania

April 25, 2014

In Re: Appeal of Silverman

Argued February 12, 2014

Appealed from No. CP 51 CR 0105361-2003. Common Pleas Court of the County of Philadelphia. Dembe, President Judge.

Daniel Silverman, Philadelphia, Pro se.

Colin S. Haviland, Philadelphia, for appellee.


Page 772



Attorney Daniel Silverman, court-appointed PCRA[1] counsel (Counsel) for a defendant convicted of murder and sentenced to life imprisonment by the Court of Common Pleas of Philadelphia County (trial court), appeals an order dated November

Page 773

7, 2012, which awarded counsel fees in a reduced amount (Fee Award).

The Fee Award was rendered at about the same time that the trial court disposed of a remanded PCRA petition. The order disposing of the remanded PCRA petition is on its second appeal to the Superior Court. Initially, Counsel also appealed the Fee Award to the Superior Court, but when Counsel sought to amend the caption to delete the Commonwealth as appellee, the Superior Court transferred only the Fee Award appeal to this Court.

The nominal appellee is then-President Judge Pamela Dembe of the trial court (PJ), who, pursuant to local rules, reviewed the fee petition and entered the Fee Award. The PJ is represented by the Administrative Office of Pennsylvania Courts (AOPC). In addition to the substantive question of whether the PJ abused her discretion in awarding a reduced fee, threshold issues involve jurisdiction, appealability of the Fee Award, parties to any appeal, the scope of review, and appropriate process. After careful review, we affirm.


After the criminal defendant was found guilty and sentenced, Counsel was appointed, and a petition for PCRA relief was filed. The long history of the PCRA litigation is relevant primarily because multiple judges were involved, and the most involved judges left the trial court and are no longer available for input on the current fee request.

The Fee Award is in response to Counsel's third request for counsel fees related to PCRA relief. His first petition was granted by the PJ in the full amount of $7,312.50. This fee award occurred at about the time the trial court initially denied PCRA relief, without a hearing.

Counsel appealed the initial denial of PCRA relief to the Superior Court, which remanded the case for hearing. At about the time the initial PCRA appeal was decided, Counsel's second request for counsel fees was granted in the amount of an additional $1675. Counsel contends that his billing procedures have not changed since the two prior requests for counsel fees in this case were granted.

Because Counsel complains that his rights have been infringed by the way in which his third request for counsel fees was handled, and he seeks an opportunity to be heard, some detail is necessary.

Counsel filed the current fee request in early November, 2012, at about the same time that the substantive PCRA issues were resolved by the trial court. On November 7, 2012, the PJ signed the Fee Award in the amount of $6,672.50, $4,465 less than requested. Counsel complains in part that the PJ did not consult with the trial judge who presided over the PCRA litigation, as required by local rule.

Counsel avers he was never served with the Fee Award. He came to know of its existence when he received a check. According to Counsel, in a telephone call to the PJ's chambers, he learned that his billing increments were one concern.

Counsel filed a motion for reconsideration alleging arbitrariness, an unconstitutional taking, and the unfairness of an ex post facto law, because the PJ disallowed his .25 hour billing increments and imposed .10 hour billing increments. According to Counsel, he also offered to discuss the matter informally with the PJ. The motion for reconsideration was denied without a hearing, and Counsel claims he received no response to his letters to the PJ.

Because the Fee Award was never entered on the docket, Counsel filed a praecipe

Page 774

for entry of an adverse order. The same day, the Fee Award was entered on the docket. After consultation with the Superior Court's Deputy Prothonotary, Counsel filed an appeal in that court.

Subsequently, the PJ filed an opinion explaining the Fee Award. The PJ did not question the quality of legal services rendered by Counsel. She observed, however, that on remand of the PCRA litigation, no new legal issues were raised, and Counsel used the same expert witness he used in the initial PCRA proceeding.

The PJ also questioned Counsel's billing increments for short clerical tasks performed repeatedly between 2009 and 2012, such as telephone calls, correspondence and e-mails to various individuals. Further, the PJ dismissed Counsel's claim that this new approach to his billing increments amounted to an ex post facto -type law. In this regard, the PJ noted that in another named case Counsel's fee was reduced, and he was not held to a different standard in the current case. " The total hours he claimed to have spent on the case were simply too high considering the work he already had done." Tr. Ct., Slip Op., 4/18/13, at 4.

The PJ also reduced Counsel's fee based on " block billing," which made it difficult for the PJ to assess how much time he spent on each task. The PJ also disallowed compensation for local travel time and for time spent photocopying documents. Further, citing the local rule provision which gives the judge discretion to determine whether time is reasonably spent, the PJ stated that she " allowed compensation for what would be a reasonable estimate of in court and out of court time in the instant case." Id. at 4-5.

Rejecting Counsel's claims that his due process rights were violated, the PJ disputed that Counsel had a property right in an award of the full fee, stating " until the court signed an order awarding fees [Counsel] possessed nothing more than the hope that he would be granted $11,137.50. See, e.g., In re Metro Transportation Co., 107 Bankr. 50, 53 (D. E.D. Pa. 1989)." Id. at 5.

Finally, the PJ explained that under the local rule the maximum payment to counsel for a homicide PCRA is $4,000. Additional payments may be made if the PJ determines extraordinary circumstances justify it. The PJ closed her opinion as follows:

[Counsel] was paid more than the statutory maximum. To pay him an additional $4465.00 would be excessive given budgetary constraints, and clearly not justified when looking at the case as a whole.



In his main brief, Counsel questions whether the PJ abused her discretion in awarding only part of the amount requested above the presumed maximum fee of $4,000.

AOPC raises several issues. First, in the " Counter Statement of Jurisdiction" portion of its Brief for Appellee, it questions whether the Commonwealth Court has jurisdiction, primarily because there is no precedent for the proposition that an administrative order is a final order. Relatedly, AOPC questions whether the Fee Award is a final appealable order. Third, AOPC questions whether the City of Philadelphia is an indispensable party such that its absence from the proceedings requires quashing the appeal. Fourth, AOPC questions whether Counsel has a protected property interest which implicates " taking" protections and due process protections and requires a hearing.

Page 775

Appellate Jurisdiction

Counsel argues that the issue before the Court is one of first impression and that the question of jurisdiction is somewhat unclear. He is only proceeding in the Commonwealth Court because the appeal was transferred from the Superior Court and accepted by the Commonwealth Court.

Although it did not file a formal objection, AOPC questions the Commonwealth Court's appellate jurisdiction. It argues that there is no precedent standing for the proposition that an administrative order qualifies as a final order, and it argues that a judicial officer who authored an opinion is not a proper party to an appeal of that opinion. Relying on In Re Domestic Relations Hearing Room, 796 A.2d 407 (Pa. Cmwlth. 2002) (appeal quashed because an administrative order issued by a common pleas court president judge was not a final order), AOPC argues that the appeal must be quashed.

We view the matter as an appeal from a decision by a president judge acting as a court administrator rather than as a trial judge, and exercising her discretion pursuant to the local criminal rules regarding payment for services rendered by a court-appointed attorney. Accordingly, the Commonwealth Court arguably has jurisdiction pursuant to Section 762(a)(4) of the Judicial Code, 42 Pa. C.S. § 762(a)(4) (" Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases: ... (4) Local government civil and criminal matters." ).

While litigation concerning the Fee Award could be deemed ancillary to the PCRA appeal pending in the Superior Court, our conclusion regarding appellate jurisdiction is consistent with this Court's interest in judicial economy and long-standing policy not to re-transfer matters to the Superior Court. See Pa.R.A.P. 741; 20 G. Ronald Darlington et al., Pennsylvania Appellate Practice § § 741:2, 741:3 (2013-2014 ed.). The conclusion is also consistent with our reluctance to encumber our Supreme Court's superintendency powers. Mun. Publ'ns, Inc. v. Court of Common Pleas of Phila. Cnty., 507 Pa. 194, 489 A.2d 1286 (1985); see Pa.R.A.P. 751(b); 20 G. Ronald Darlington et al., Pennsylvania Appellate Practice § 751:4 (2013-2014 ed.).

Final Appealable Order

AOPC argues that Philadelphia Criminal Rules 424[2] and 425[3] do not confer

Page 776

a right of appeal. Phila.Crim.R. 424, 425. In particular, Philadelphia Criminal Rule 425(F)(2) provides in part: " The order for payment by the president judge will constitute final authority." AOPC argues that this demonstrates that the Fee Award is meant to be conclusive and not appealable. AOPC asserts reviewing courts should defer to the local court's application, construction, and interpretation of a local rule of court.

Further, AOPC argues generally that compensation allowances made pursuant to the local rules are administrative orders and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.