Superior Court vacates appeal of attorney busted for running poker game

By Nicholas Malfitano | Aug 16, 2018

HARRISBURG – An attorney whose home was once raided by state police authorities for overseeing illegal poker games and then opposed the repayment of $17,760 in legal fees to his former counsel, finds himself drawing a busted flush after having his appeal declared null and void by the Superior Court of Pennsylvania.

Superior Court judges Susan Peikes Gantman, Jack A. Panella and Paula Francisco Ott ruled Aug. 6 that the appeal brought forward by defendant Lawrence R. Burns against his former legal counsel David J. Millstein of Millstein & Knupp, was not valid. Gantman authored the Court’s opinion in this matter.

Millstein and Appellant are both attorneys licensed to practice law in Pennsylvania. In the summer of 2007, Burns oversaw regularly scheduled poker games in the Pennsylvania towns of Adamsburg and Seward. During that summer, Pennsylvania State Police raided both the Seward poker game and Burns’ home, seizing his property and cash.

After the raids but before criminal charges were filed, Burns retained Millstein to represent him in a civil forfeiture matter, through which Burns sought to recover his seized property. Additionally, Burns sought criminal representation from Millstein, as Burns believed criminal charges would soon be filed against him. Millstein cautioned Burns that he did not practice criminal law and only agreed to represent Burns in the civil matter.

The civil representation was memorialized in a letter dated Aug. 15, 2007, which was signed by both parties. The agreement cites a $200 per hour fee, and the parties stipulated that the agreement is limited to civil representation only. Millstein represented Burns in his civil forfeiture action, and was successful in getting Burns’s property returned to him.

Subsequent to the civil matter’s resolution, Burns asked Millstein to continue to represent him in the criminal case. Millstein agreed, listening to Burns’s advice that the criminal proceeding was grounded in “civil rights and constitutional law," where he was experienced.

Where the parties disagreed was the fee arrangement: Millstein assumed the fee arrangement would be the same as it had been in the civil case, and billed the criminal matter at a rate of $200 per hour. In contrast, Burns testified when the criminal representation began, he told Millstein that “he could not pay him for the criminal charges,” and that the two “would have to work something out.”

However, Burns insists that he and Millstein never reached a consensus with regard to the latter’s fee. Burns explained their only agreement was that Millstein would start working on the case without a clear fee arrangement, and that the two men would later come to an agreement on the fee amount.

Millstein represented Burns until 2010 and on June 20, 2011, Millstein sent his client a single invoice for his civil and criminal work, totaling $35,687.05. Millstein testified between Dec. 10, 2008, and Feb. 3, 2011, Burns sent him 14 payments of $250, for a total of $3,500.

Those payments left Burns’s outstanding balance as $32,187.05, and Burns argued he does not question the amount of time Millstein billed, but instead challenges the $200 per hour legal fee rate, to which Burns insists he never agreed.

On June 10, 2013, Millstein sued Burns for breach of contract for failure to pay counsel fees. After nearly three years of litigation followed by compulsory arbitration, the arbitrators awarded Millstein $18,600 plus costs, on May 24, 2016. Burns filed an appeal in the trial court on June 23, 2016, and the following August, the court held a bench trial.

On Sept. 14, 2017, the court entered an order directing Burns to pay Millstein $17,760, yet Burns filed no post-verdict motions. Instead, he filed a pro se notice of appeal on Oct. 12, 2017. The court did not order, and Burns did not file, a concise statement of errors complained of on appeal as required by state law.

It was then the Superior Court’s duty to determine if the appeal was properly placed before it – but as there was no judgment entered on the verdict, no appeal was allowable.

“Instantly, after the court held a bench trial on Aug. 30, 2017, it entered a verdict as an order in favor of plaintiff on Sept. 14, 2017. Defendant did not file any post-verdict motions. Instead, defendant filed a notice of appeal,” Gantman said.

“The certified record, however, shows the court had not entered judgment on the verdict when defendant filed his notice of appeal or at any time to date. Therefore, this appeal is premature and we have no jurisdiction to entertain the appeal as filed. Accordingly, we quash the appeal as interlocutory and unappealable.”

Superior Court of Pennsylvania case 1527 WDA 2017

Westmoreland County Court of Common Pleas case 2886 of 2013

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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