Marino Estate, 269 A.2d 645

Marino Estate

269 A.2d 645

Pa.

1970

Check Treatment

Marino Estate

Supreme Court of Pennsylvania

October 9, 1970

440 Pa. 492

Argued October 8, 1969. Before BELL, C. J., JONES, COHEN, EAGEN, O‘BRIEN, ROBERTS and POMEROY, JJ.

cused must have counsel “‘at any stage of the prosecution, formal or informal, in court or out.‘”

Id. at 7, (emphasis added). This again supports my view that once the accused is held for the grand jury, the prosecution has commenced, and the accused is consequently entitled to the assistance of counsel at every stage thereafter. In the instant case, as in Dickerson, the accused was prejudiced by the denial of counsel at a later stage, and under Coleman, relief must therefore be granted. See .

Accordingly, with all deference to a majority of the Third Circuit, it is my view that the above United States Supreme Court decisions require us to give appellant relief. Certainly, I might add, there is nothing in either federal or state law which compels us to follow Dickerson, a four-to-three decision of the Third Circuit, and, in my judgment, erroneously deny to appellant the relief to which he is entitled. Hence I would grant appellant a new degree of guilt hearing, free of the taint of the unconstitutionally obtained confession.

Edward Munce, for appellant.

Thomas J. Terputac, for appellee.

OPINION BY MR. JUSTICE JONES, October 9, 1970:

On October 6, 1961, Gabriel E. Marino died intestate, owning, inter alia, 12.81 acres of land in Washington County. He was survived by the following named sister and four brothers: Teresina Marino, Ralph Marino, Anthony Marino, Patsy Marino¹ and Russell Marino.²

On March 6, 1969, Russell Marino, as administrator for the estate, filed a petition seeking leave to retain separate counsel to aid with certain condemnation proceedings. On March 18, 1969, Judge Charles D. COPELAND, specially presiding, granted this petition to retain separate counsel. Anthony Marino appealed from the order of March 18, 1969, and Russell Marino has filed a petition to quash the appeal. The appeal must be quashed.

In the absence of express statutory authorization, an interlocutory order is generally unappealable (

McGee v. Singley, 382 Pa. 18, 114 A. 2d 141 (1955)) and no such statute is presently applicable. “The evident policy of the law in such regard is to preclude piecemeal determinations and the consequent protraction of litigation.” .

... An order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower court.

Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A. 2d 353 (1968); ; .

In the case at bar, Anthony Marino, apparently, would like to have Russell Marino removed as administrator, although Anthony‘s position is none too clear from the pleadings. The order from which this appeal has been taken only pertains to the retention of additional counsel to aid the estate in certain condemnation proceedings. The order of March 18, 1969, not only fails to raise the issue which is apparently in controversy but is also interlocutory.

Middleberg v. Middleberg, 427 Pa. 114, 233 A. 2d 889 (1967). Accordingly, this appeal must be quashed. Any discussion on the merits of this case must be deferred until such time as we may have a complete record before us. .³

Appeal quashed. Appellant to pay costs.

CONCURRING OPINION BY MR. JUSTICE COHEN:

I join in the opinion of the Court. However, I must note my strong disapproval of the actions of Anthony Marino, a member of the Bar of this Court, who is apparently attempting to use the judicial system to further his personal intra-family feud.

It should be noted that Anthony Marino has had the services of five different attorneys since 1964. In addition, he acted as his own counsel in the Answer he filed on March 8, 1966 which led to a contempt citation. As a lawyer Mr. Marino should recognize that the judicial system should not be further burdened with his personal antagonism.

CONCURRING OPINION BY MR. JUSTICE ROBERTS:

While I join in the opinion of the Court, I must additionally note my strong disapproval of the actions of the orphans’ court judge in sitting in a case in which he had a direct pecuniary interest. Canon 29 of the American Bar Association‘s Canons of Judicial Ethics provides that “[a] judge should abstain from performing or taking part in any judicial act in which his personal interests are involved.” See also the Interim Report of the American Bar Association‘s Special Committee on Standards of Judicial Conduct, which concluded that “[a] judge should disqualify himself in any proceeding in his court in which he knows or should know that he, individually or as a fiduciary, or any member of his family residing in his household, has an interest in the matter in controversy or the affairs of a party to the proceeding.” I also expressly disapprove of the actions of the Register of Wills and Clerk of the Orphans’ Court in retaining his position as administrator of the estate after his accession to these positions.

Notes

Patsy Marino is the judge of the Orphans’ Court Division of the Court of Common Pleas of Washington County.

Russell Marino, since 1968, has been the Clerk of the Orphans’ Court and Register of Wills of Washington County.

The disposition of this appeal shall in no manner be deemed a condonation of the participation of Judge Marino at any stage of the proceedings in this estate nor of the action of Russell Marino in continuing as administrator of this estate after becoming Clerk of the Orphans’ Court and Register of Wills of Washington County. A judge must not act in a controversy wherein he is a party in interest (Canons of Judicial Ethics, §§ 13, 29 of the American Bar Association adopted by this Court) and the conduct of Judge Marino clearly and flagrantly violated the ethical standards of the judiciary. Moreover, Russell Marino, although he was not Register of Wills when appointed administrator, should have resigned as administrator upon his election as Register of Wills.