HARRISBURG – The Superior Court of Pennsylvania has reversed and remanded a motion calling for the disqualification of a Scranton law firm, in representing a plaintiff in an underlying personal injury action in a Lackawanna County court.
A Jan. 4 opinion from the Superior Court reversed a prior ruling, which prevented the Munley firm from representing Mary Ann Rudalavage in a personal injury litigation versus PPL Electric Utilities Corporation.
Superior Court Justice Mary P. Murray authored the Court’s opinion in this matter.
“On Nov. 27, 2017, the decedent lost control of his vehicle while driving on a private road owned by appellant. Decedent hit a guardrail, was ejected from his vehicle, and died as a result of his injuries. On Aug. 26, 2019, Rudalavage filed a complaint against appellant asserting wrongful death and survival claims,” Murray said.
“Rudalavage was represented by the Scranton-based Munley firm, which is comprised of approximately 10 attorneys and specializes in personal injury law. Specifically, Rudalavage was represented by two attorneys other than John M. Mulcahey, Esq., who we discuss below. On Sept. 23, 2019, appellant filed preliminary objections to the complaint, after which Rudalavage filed a response.”
Four weeks later, on Oct. 21, 2019, PPL filed a motion to disqualify the Munley firm and its attorneys as counsel for Rudalavage, based on conflict of interest in violation of the Pennsylvania Rules of Professional Conduct.
The corporation noted that Mulcahey previously represented it on numerous occasions as outside counsel during his 18-year tenure at the law firm of Lenahan & Dempsey, P.C., where he was employed prior to joining Munley in February 2014 – and felt that such an arrangement was a conflict, due to Mulcahey’s knowledge of “litigation strategy, assessing claims, and determining the relevancy and discoverability of documents.”
On Jan. 26, 2021, the trial court denied appellant’s request for disqualification of Munley as to Rudalavage and another case plaintiff, concluding Munley’s “screening process is adequate.”
PPL then filed an appeal to the Superior Court, arguing Munley Law failed to meet its burden of demonstrating compliance with Pennsylvania Rule of Professional Conduct 1.10(b), with respect to Mulcahey’s alleged conflict of interest in this case.
In using the lens of the Dworkin factors, 1) The substantiality of the relationship between the attorney and the former client; 2) the time lapse between the matters in dispute; 3) the size of the firm and the number of disqualified attorneys; 4) the nature of the disqualified attorney’s involvement and 5) the timing of the wall.
When considering each of these factors, the Superior Court found all of them but one weighed in favor of disqualification against the Munley Law firm.
“There is no question Mulcahey had a substantial relationship with appellant; he represented, i.e., defended appellant in numerous lawsuits over 18 years and gained significant proprietary knowledge about appellant’s internal operations and litigation strategy. This factor weighs in favor of disqualification. The record indicates a time lapse of over five years between the representations. This factor does not weigh in favor of disqualification,” Murray said.
“The Munley firm is relatively small, consisting of approximately 10 attorneys. A law firm’s small size is ‘a detriment rather than an asset in implementing an effective screen’ because there is more contact between the attorneys. This factor weighs in favor of disqualification. Though Mulcahey was never counsel of record for Rudalavage, he was de facto counsel when he reviewed the complaint and attended, with an expert, an inspection of the accident scene. Mulcahey’s involvement gives the appearance of impropriety. This factor weighs in favor of disqualification. The record indicates Munley did not implement a screen when Rudalavage retained the Munley firm, and never provided appellant with documentation of the screen they purported to implement afterwards. This factor also weighs in favor of disqualification.”
Ultimately, the Superior Court opted to reverse and remand the trial court’s order.
“Considering the above factors, we conclude Munley failed to meet its burden to establish compliance with Rule 1.10(b). Additionally, Munley failed to provide appellant with prompt written notice of Mulcahey’s conflict of interest, in violation of Rule 1.10(b)(2),” Murray said.
“For the above reasons, we reverse the order denying appellant’s motion to disqualify, and remand for entry of an order precluding the Munley firm and its attorneys from representing Rudalavage in the underlying litigation.”
Superior Court Justice Jack A. Panella joined Murray’s opinion.
In a dissent, Superior Court Justice Correale F. Stevens said “no tangible prejudice” was demonstrated on the part of Munley Law.
“Contrary to the majority’s conclusion, appellant has demonstrated no tangible prejudice from Munley Law’s continued representation of appellee, certainly not to the extent that a trial would be impugned as unfair. The entry of an order precluding Munley Law and its attorneys from representing appellee in the underlying litigation at this late stage would effectively deny appellee of counsel of his own choosing and result in an additional and unwarranted delay,” Stevens stated.
“Moreover, the majority’s decision is overbroad in failing to recognize the many lateral moves which occur on a regular basis in the legal profession in Pennsylvania. Significant delays in cases will occur if the majority decision is cited every time a lawyer makes a lateral move to a new law firm which has an ongoing case involving a party from the lawyer’s prior law firm. That being said, the majority correctly gives fair warning to law firms to make certain appropriate procedures are in place to comply with the Rules of Professional Conduct.”
Superior Court of Pennsylvania case 237 MDA 2021
Lackawanna County Court of Common Pleas 19-CV-5026
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com