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Precedential or Non-Precedential: Non-Precedential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.
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NOT PRECEDENTIAL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.
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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
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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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