The opinion
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM BURRELL, JR., et al.,
Plaintiffs, : CIVIL ACTION NO. 3:14-CV-1891
: (JUDGE MARIANI)
V.
LACKAWANNA RECYCLING CENTER,
INC., et al., :
Defendants.
MEMORNANDUM OPINION
1. INTRODUCTION
The Motion for Leave to Withdraw Appearance (Doc. 173) filed by counsel for the
Lackawanna County Solid Waste Management Authority (“LCSWMA’ “Authority”) on
December 15, 2023, is pending before the Court. At the time the Motion was filed, Attorneys
Sal Cognetti, Jr., and Sarah Lloyd had entered appearances on behalf of Defendant
Authority. Ms. Lloyd withdrew her appearance on March 1, 2024. (Doc. 178.) Therefore, the
Motion now applies only to Mr. Cognetti.
Mr. Cognetti seeks to withdraw based on the inability to establish contact with the
Authority, the Authority's material breach of its agreement for representation, and lack of
guidance from the Lackawanna County Solicitor’s Office. (Doc. 178 fff 4-6.) The Motion
indicates that the Authority notified counsel in May of 2023 that “it was winding up its affairs
but that it was effectively defunct and no longer in operation.” (/d. J} 3.) Named Defendants
concur in the Motion. (See Doc. 173-2.) However, Plaintiffs oppose the Motion on several
grounds, including lack of information about how the Authority had become “effectively
defunct,” and the prejudice to Plaintiffs if Authority counsel were permitted to withdraw
without alternative counsel appearing for the Authority. (Doc. 174 at 5-8.) For the reasons
that follow, the Court will grant the Motion for Leave to Withdraw Appearance (Doc. 173).
Il. BACKGROUND
In the February 7, 2025, Order requiring Defendant County to address the issue of
the representation of Defendant Authority, the Court set out the following background
information:
On March 21, 2024, the Court held a Telephone Conference to discuss the
Motion for Leave to Withdraw Appearance and the status of the Authority. (See
Doc. 185 at 1-2.) It was agreed that the Court would address the Motion after
Plaintiffs’ counsel had an opportunity to depose the Authority's counsel,
Thomas Cummings. (/d.)
On May 29, 2024, upon consideration of the Motion for Leave to
Withdraw Appearance (Doc. 173), the Court issued an Order requiring Mr.
Cummings and Donald Frederickson, an individual identified to have
knowledge about the operations of the Authority, to provide deposition
testimony. (/d. J§] 1, 2.) The Order also indicated that the Court would hold the
pending Motion in abeyance until such discovery was completed or an
appearance was entered by another attorney on behalf of the Authority. (/d. J
3.) Plaintiffs were directed to notify the Court when the ordered discovery was
completed, and the parties were to file joint status reports within sixty days. (/d.
15, 6.)
Plaintiffs submitted a Status Report on July 29, 2024, indicating that Mr.
Cummings had been deposed and Mr. Frederickson was scheduled for a
deposition on July 31, 2024. (Doc. 196 at 1.) Plaintiffs further indicated that they
intended to file an updated status report on or before August 8, 2024. (Id. at 2.)
In their August 8, 2024, Status Report, Plaintiffs stated that they had not
completed the deposition of Mr. Frederickson, the Lackawanna County
Solicitor, but would do so on August 15th. (Doc. 200 at 2.) Plaintiffs planned to
file another status report no later than August 22, 2024. (/d.) On August 30th,
Plaintiffs filed a Status Report indicating that they had deposed Mr.
Frederickson and would file another status report after they had an opportunity
to review the transcript of the deposition. (Doc. 203 at 3.)
Plaintiffs’ September 13, 2024, Status Report provided the following
information about the status of the Authority and their position on the pending
Motion for Leave to Withdraw Appearance:
[O]n July 31 and August 15, in accordance with the Court's May
29 Order regarding the status of the Lackawanna Solid Waste
Management Authority (the “Authority”) in this litigation, Plaintiffs’
Counsel took the deposition of County Solicitor Donald
Frederickson. This deposition made clear that the Authority has
not been dissolved, and is still an active entity. Specifically, as
County Solicitor testified:
Q. Is it your belief that the authority has been
dissolved?
A. No, it has not been dissolved. It can’t be
dissolved because there’s upstanding business,
mainly this litigation.
Q. — Soisit your position that the authority is, in
fact, a still active entity?
A. Correct.
Plaintiffs also deposed Thomas Cumming’s, former’ Solicitor to
the Authority, who also confirmed that the Authority 1as
outstanding matters including this litigation and cannot be
dissolved.
Accordingly, although Plaintiffs do not oppose Cognetti &
Cimini’s motion to withdraw as counsel for the Authority, such
motion should only be granted once replacement Counsel for the
Authority has appeared, since the Authority is unable to
represent itself pro se.
(Doc. 205 at 6-7 (citing Corner Pocket Inc. v Travelers Indem. Co., Civil Action
No. 12-228, 2014 U.S. Dist. LEXIS 192855, at *10 (W.D. Pa. Mar. 1, 2014)!
(explaining that “the general rule [is] that a law firm cannot withdraw from
representing a corporation before the corporation retains new counsel.”).)
On October 23, 2024, the Court issued an Order granting Plaintiffs’
Motion for Status Conference Concerning Discovery and Class Notice (Doc.
107). (Doc. 208.) The Order indicated that the Motion for Leave to Withdraw
Appearance (Doc. 173) would be addressed at the Status Conference and both
Mr. Cummings and Mr. Frederickson were required to attend the October 30,
2024, Status Conference in person. (Doc. 208 at 4, J 3.) On motion by
Lackawanna County to continue the Status Conference (Doc. 209), the Court
rescheduled it for November 8, 2024 (Doc. 210).
Mr. Cummings attended the November 8, 2024, Status Conference.
(Doc. 216 at 1.) Mr. Frederickson did not attend and did not contact the Court
regarding his attendance at the Status Conference. The Court’s minutes of the
Status Conference indicate that Mr. Cummings stated there were no members
of the Lackawanna County Solid Waste Management Authority and the
Authority was defunct. (Doc. 216 at 1.)
(Doc. 243 at 2-4.)
The transcript of the November 8, 2024, Status Conference (“11/8/24 Tr.”) shows
that Mr. Cummings stated that he is no longer the solicitor for the Authority and he had
given the County a formal letter of resignation which had been accepted within six to eight
months before the November 8, 2024, Status Conference. (11/8/24 Tr. 28:17-21, 29:16-18,
' Westlaw citation: Corner Pocket, Inc. v. Travelers Indem. Co., Civ. A. No. 12-228, 2014 WL
12600508, at *4 (W.D. Pa. Mar. 1, 2014).
Doc. 246 at 28, 29.) When asked whether someone had replaced him, Mr. Cummings
answered “No” and provided additional information:
as it stands now to my knowledge, there are no members on the authority; and
that was communicated to the County. All but one of the members gave a
formal resignation which was delivered to the County.
The authority, although still theoretically in existence, has no assets.
And the only three things that remain are the amount owed to Attorney
Cognetti's Law Firm which is large, my unpaid bill which in my role is large, and
this litigation. And that's all that there is.
So there is no fund to provide legal fees for replacement counsel. There
is no fund to reimburse Mr. Cognetti somewhere north of 40-, 50,000. The
Authority owes me around 39,000. | did not walk away. | was unpaid for three
or four years, out of respect for the community.
But finally, when everything wrapped up and all the authority members
resigned, | gave the County a formal letter of resignation which they accepted.
| can't tell you the exact date; but it was within the last six, eight months.
(11/8/24 Tr. 28:25-29:18.)
Based on this background, the Court concluded that
because the Lackawanna County solicitor, Mr. Frederickson, has stated that
the Authority is not defunct, and Defendant Lackawanna County is the
municipality which organized the Authority and would approve the Authority's
certificate requesting termination pursuant to Section 5619(c) of the
Municipality Authorities Act, at this juncture it is appropriate for Defendant
County, in conjunction with Mr. Frederickson or another Lackawanna County
representative with knowledge and authority regarding the Authority’s status
and legal representation, to inform the Court whether the County is prepared
to assume the defense of the Authority in this action and, if not, how the County
will take the necessary steps to reconstitute the Authority so that the Authority
Board can identify the Authority’s counsel in this action.
(Doc. 243 at 5.)
On February 11, 2025, Defendant County filed the Memorandum by Defendant,
Lackawanna County, Regarding Defense of Co-defendant, Lackawanna County Solid
Waste Management Authority (Doc. 244). Defendant County asserts that the Authority is a
separate legal entity which has “not completed its duties in winding up its affairs.” (Doc. 244
at 3.) Defendant County further asserts that
[djue to the fact that the Authority is not terminated, and there are further steps
towards termination that involve actions of the Board members, it remains a
separate and distinct legal entity responsible for “winding up” its own affairs
and legal issues — namely, this case. Until it handles these outstanding “winding
up” responsibilities, it remains its own existing legal entity. . . . [T]he Authority .
.. Still exists under statutory law as an independent agency. The fact that the
Authority stated it is “effectively defunct and no longer in operation” does not
mean that is legally sound or that it is released from its legal obligations and
duties — it just means the Board and Authority have chosen to stop operations
before handling all necessary duties. This certainly does not and cannot shift
the Authority's duties and obligations to the County — which remains a wholly
separate entity under the law.2
(Id, at 4-5.)
Plaintiffs filed Plaintiffs’ Response to Lackawanna County’s February 11, 2025
Memorandum (Doc. 247) on February 25, 2025. Plaintiffs assert “despite the County's
2 Defendant County's Memorandum identifies the “currently listed” Authority Board Members to be
Joyce Hatala, Nicholas Gavern, Manuel Griffin, Al Senofonte, Rich Miller, Al Lawrence, and Vince Amico,
and the “currently listed” Solicitor to be Thomas Cummings. (Doc. 244 at 2-3 (citing “Exhibit A — List of
Authority Board Mambers Provided by the Right to Know Officer of the Lackawanna County
Commissioner's office”).) The term of Board Member Griffin expired on December 31, 2021; the terms of
Board Members Gavern, Senofonte, Miller, and Amico expired on December 31, 2022: the term of Board
Member Lawrence expired on December 31, 2024; and the term of Board Member Joyce Hatala expires on
December 31, 2025. (Ex. A, Doc. 244-1 at 2.) By this tally, only the term of Ms. Hatala has not expired.
Defendant County cites 53 Pa. C.S. § 5601(d) for the proposition that “Members shall hold office until their
successors have been appointed.” (Doc. 244 at 3.) The cited provision reads in its entirety: “This chapter
shall be known and may be cited as the Municipalities Authorities Act.” 53 Pa. C.S. § 5601. Clearly, the
provision does not support the proposition for which it is cited.
arguments to the contrary, it could settle the claims of the Authority or ensure the Authority
obtains new counsel.” (/d. at 7.) In support of this position, Plaintiffs point to the following:
(1) “Mr. Cummings’ deposition testimony makes clear that, in addition to being intricately
involved in the Agreement at the center of this case, the County and the Authority, although
purportedly separate, are inextricably linked” (id. at 4; see id. at 2-5 & nn.1, 2); (2) “the
County never properly incorporated the Authority with the Commonwealth” (id. at 5); (3) in
2022, the County was party to the sale of the Authority's sole project, the Recycling Center
(id. at 6-7 & n.4); and (4) “under the Municipal Authorities Act, the County may ‘dissolve an
authority and obtain and later transfer and/or convey the authority's assets as it deems fit,
without any input on the part of the authority” (id. at 7 (quoting In re Chester Water
Auth. Tr., 263 A.3d 689, 700 (Pa. Commw. Ct. 2021) (on appeal))).
Ill. ANALYSIS
Clearly, Defendant County and Plaintiffs hold divergent positions on the issue of
Defendant County’s role in the representation of Defendant Authority going forward.
However, for purposes of the resolution of the pending Motion for Leave to Withdraw
Appearance (Doc. 173), the Court need not resolve the conflict between the positions
expressed by County Defendant and Plaintiffs. The background set out above demonstrates
that the unique circumstances of this case present an exception to the general rule that “a
law firm cannot withdraw from representing a corporation before the corporation retains new
counsel,” Corner Pocket, 2014 WL 12600508, at *4.
In LabMD v. Boback, 47 F.4t 164 (3d Cir. 2022), the Third Circuit identified an
exception to the general rule which allows withdrawal before new counsel is retained when
the counsel wishing to withdraw adequately demonstrates that his appearance “serves no
meaningful purpose.” /d. at 190-91 (citing Ohntrup v. Firearms Center, Inc., 802 F.2d 676,
680 (3d Cir. 1986) (per curiam); Fid. Nat’! Title Ins. Co. of N.Y. v. Interlocutory Nat'l Title Ins.
Co., 310 F.3d 537, 541 (7th Cir. 2002) (“holding that counsel should have been permitted to
withdraw, leaving a corporate client unrepresented, after considering the burden imposed
on the potentially withdrawing counsel if the status quo is maintained, the stage of the
proceedings, and the prejudice to other parties,” 47 F.4"" at 191)).
First, considering the “burden imposed on the potentially withdrawing counsel if the
status quo is maintained,” 47 F.4'" at 191, courts have found withdrawal prior to the
appointment of new counsel appropriate when the defendant has stopped communicating
with counsel. See, e.g., Pitt Electric, Inc. v. Pitt Electric, Inc. & Construction, Civ. A. No.
2:22-804, 2023 WL 6303819, at *3 (W.D. Pa. May 2, 2023) (citing Retail Distrib. West LLC
v. Kimberly LED Lighting LLC, Civ. A. No. 21-CV-1237, 2023 WL 2772511, at *3 (W.D. Pa.
Feb. 27, 2023)). Here, Defendant Authority has stopped communicating with Mr. Cognetti
and he has not been able to connect with anyone willing or able to facilitate his
representation. See supra. The status of the Authority and the County's position regarding
its relationship to the Authority leave Mr. Cognetti in a communication desert with no change
in circumstances in the foreseeable future. Further, former Authority counsel Thomas
Cummings acknowledged the Authority's debt and the situation of payment of replacement
counsel: “there is no fund to provide replacement counsel and there is no fund to reimburse
Mr. Cognetti somewhere north of 40-, 50,000.” (11/8/24 Conf. Tr. 29:10-12.) This testimony
shows that Mr. Cognetti has provided legal services for which he has not been
compensated with no fund to pay him for future services. Therefore, the first consideration
weighs in favor of granting the pending motion.
Second, with respect to the stage of the proceedings of this protracted litigation, the
case is in an intense discovery phase with class action filings anticipated in the near future.
However, there are no current discovery issues specific to Defendant Authority. In their
responsive filing, Plaintiffs report that “[d]uring his deposition Mr. Cummings stated that he
delivered boxes of Authority documents to the Lackawanna County Office of Environmental
Sustainability because ‘as the Authority wound up its affairs, it was presumed on
my part that they would be handling such matters for the county.” (Doc. 247 at 5 n.2 (citing
Ex. C, Cummings Tr. at 12:11-21).) With Authority documents in the custody of the County,
it does not appear that Mr. Cognetti would be a conduit for resolving discovery issues that
may arise as to Defendant County. Therefore, consideration of the stage of the proceedings
does not weigh against Mr. Cognetti’s withdrawal.
Third, regarding prejudice to other parties, Retail Distribution provides a useful
assessment:
While it may ultimately be more difficult for Plaintiff to obtain satisfaction of the
settlement agreement if Defendant is not represented by counsel, . . . Plaintiff
still is able to have its rights adjudicated . . . including having default
judgments/orders entered against Defendant if Defendant continues to choose
not to be represented by counsel.
Retail Distribution, 2023 WL 2772511, at *4. While the situation here is more complicated,
prejudice to Plaintiffs regarding the status of Defendant Authority's representation exists
whether Attorney Cognetti is allowed to withdraw or his representation continues in its
current status. The uncertain status of the Authority, lack of communication from the
Authority, and the County’s attempt to distance itself from the Authority? notwithstanding its
potential obligation as the Authority's creator under the Municipal Authorities Act foreclose
any meaningful and renewed representation. Therefore, consideration of prejudice to
Plaintiffs does not weigh against withdrawal.
In sum, Mr. Cognetti’s communication issues with the Authority and the County, the
status of the Authority, the duration of these issues with no signs of imminent resolution, Mr.
Cognetti’s irrelevance to Plaintiffs’ ability to access Authority documents, and the lack of
prejudice associated with Mr. Cognetti’s withdrawal indicate that his appearance serves no
meaningful purpose. Therefore, the Motion for Leave to Withdraw Appearance (Doc. 173) is
appropriately granted.
3 In this regard, the Court notes the failure of the County Solicitor, Donald Frederickson, to comply
with this Court's Order to attend the November 8, 2024, Status Conference in person. See supra p. 4. At
the Status Conference, Attorneys David Heisler and Carley Scopelliti, counsel for Defendant County's
insurer, were present.
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Ill. CONCLUSION
For the reasons discussed above, the Motion for Leave to Withdraw Appearance
(Doc. 173) will be granted. A separate Order wil enter. )
CA
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Robert D. Mariani
United States District Judge
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