                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2008

Magid v. Barry Wilderman M D
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4195




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"Magid v. Barry Wilderman M D" (2008). 2008 Decisions. Paper 41.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/41


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                                              NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
             ___________

                 No. 06-4195
                 ___________

   UNITED STATES OF AMERICA, ex rel.,
        DEBORAH RIVA MAGID

                       v.

      BARRY WILDERMAN M.D., P.C.;
       BARRY WILDERMAN, M.D.;
          ERIC GEWIRTZ, M.D.,
           STEVEN PALLONI;
        NORTH PENN HOSPITAL

           Barry Wilderman M.D., P.C.,
       Barry Wilderman M.D., Eric Gewirtz,

               *Arthur R. Shuman
                          Appellants

        *(Pursuant to Rule 12(a), F.R.A.P.)
                ___________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania

             (D.C. No. 96-cv-04346)
District Judge: The Honorable R. Barclay Surrick
                  ___________

        ARGUED OCTOBER 29, 2008
              Before: McKEE, NYGAARD, and MICHEL,* Circuit Judges.


                           ( Opinion Filed December 29, 2008 )
                                      ___________

Arthur R. Shuman, Esq. (Argued)
38017 Fenwick Shoals Boulevard
West Fenwick, DE 19975
             Counsel for Appellant


John F. Innelli, Esq. (Argued)
1818 Market Street, Suite 3620
Philadelphia, PA 19103
              Counsel for Appellee

                                       ___________

                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

       Arthur R. Shuman, counsel for defendants, Barry Wilderman M.D., Eric Gerwitz

M.D., and Barry Wilderman M.D. P.C. appeals the District Court’s denial of his motion

to withdraw. For the reasons that follow, we will vacate the order and remand the cause

to the District Court to reissue an order with an opinion explaining its rationale.




       *.
         The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.

                                              2
       Counsel for the defendants in the underlying case filed a motion at the District

Court to withdraw as counsel. He did so, he claims, after discovering conflicts of interest

between himself and the defendants, and between the defendants.

       Orders that do not dispose of all claims against all parties are not subject to

appellate review. 28 U.S.C. §1291. The collateral order doctrine provides an exception

to this general rule by permitting appellate review of interlocutory orders if: (1) the order

conclusively determines the disputed question; (2) the order resolves an important issue

completely separate from the merits; and (3) the order is effectively unreviewable on

appeal from final judgment. In re Carco Electronics, 536 F.3d 211, 213 (3d Cir. 2008).

       The order does conclusively determine the issue subject to appeal, because it

unequivocally denies Shuman’s motion to withdraw. Moreover, it is apparent that relief

will not be available to Shuman after the filing of a final order in this case. If Shuman is

correct that his continued representation of both defendants will create a conflict of

interest, it will not be possible to apply a post hoc remedy to eliminate this ethical

violation. Nonetheless, we cannot ascertain whether the issue is completely separate from

the merits, because we do not know the basis for the District Court’s decision.

       Moreover, while we could postulate that the District Court’s concern about

potential delays was part of the reason that the District Court denied Shuman’s motion,

we neither have certainty about this, nor do we know anything that would enable us to




                                              3
consider Shuman’s claim that, if left to stand, the District Court’s order will force him to

commit ethical violations.

       It is axiomatic that we have jurisdiction to ascertain our authority to review an

order that has been appealed, and on this basis we will vacate the order of the District

Court with instructions to reissue an order with an opinion explaining its rationale. We

otherwise express no opinion as to the content or result of the order.




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