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L. Feriozzi Concrete Co. v. Mellon Stuart Co.

Decided: April 14, 1988.

L. FERIOZZI CONCRETE COMPANY, PLAINTIFF-RESPONDENT,
v.
MELLON STUART COMPANY, ET AL., DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Dreier, Baime and Ashbey. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Leave to appeal from the order denying admission of John R. Dingess, a member of the Pennsylvania Bar, pro hac vice is granted. This court has elected to consider the matter on its merits on the motion papers alone simultaneously with the motion for leave to appeal. R. 2:11-2.

Mr. Dingess practices with the Pennsylvania law firm of Kirkpatrick & Lockhart which has represented defendant Mellon Stuart Co. for approximately 20 years. Mr. Dingess personally has represented the client for the past eight years during which time he has developed experience with the client and expertise in construction litigation. In his application made through New Jersey counsel for admission pro hac vice, both the attorney and the client claimed that on the basis of their long-standing relationship, the complexity of the case to be tried, and the probable necessity of extensive discovery in Pittsburgh, admission should be granted under R. 1:21-2(a)(4)(i), (ii) and (v).

The trial judge initially denied the pro hac vice admission noting on the order: "No special technical expertise needed." In an earlier motion before this court we remanded the matter to the trial judge for a full consideration of all of the potential reasons for admission set forth in R. 1:21-2(a)(4). The judge again denied admission pro hac vice, and Mellon Stuart Co. again sought review by this court.

Unfortunately, New Jersey counsel failed to notify the trial judge that leave to appeal was being sought and also failed to determine that the trial judge had placed an extensive statement of his reasons for denying the application on the record. Not being apprised of the full compliance by the trial judge with the terms of our prior remand, we again remanded for a statement of reasons, and the trial judge has furnished us with a copy of the transcript and an additional letter explaining his decision. We appreciate the trial judge's full compliance with our prior orders and expeditious response to each of them. We

suggest that the cost of preparation of the transcript ordered by the court be assessed against Mellon Stuart Co. which should have provided the transcript to us with its previous motion.

The trial judge acknowledged the long-standing relationship between Mellon Stuart Co. and its Pennsylvania counsel. He determined, however, that the nature of the matter before him would require minimal discovery in Pennsylvania, since most of the depositions could be held in New Jersey. Defendant, however, still claims that there is much documentary discovery that must be carried out in Pittsburgh. The judge further determined that the technical aspects of the construction litigation were not so complex that New Jersey counsel could not prepare himself adequately to try the case. In his denial of the admission the trial judge relied primarily upon a Supreme Court order denying motion for leave to appeal in Campbell v. Raymark Industries, Inc., Supreme Court Docket No. M-372, September Term 1987, dated December 8, 1987. This order, however, does not appear to have been published. The order reads:

This matter having been duly presented to the Court, and it appearing that because the matter primarily involves a discretionary application of Rule 1:21-2, the pro hac vice admission Rule, the Court declines to disturb the trial court's ruling, except to note that ordinarily applications to be admitted pro hac vice should be granted when timely made in cases involving complex fields of specialization, and attorney-client relationship over an extended period of time that predates the matter, and the absence of a potential for delay or disruption of the trial -- authorization of admission may be conditioned upon the availability of foreign counsel to proceed on an assigned trial date, and New Jersey counsel must be prepared to proceed if foreign counsel is not available or ready;

It is therefore ORDERED that the motion for leave to appeal is denied. [emphasis supplied].

The trial judge read the emphasized portions of the order as being conjunctive rather than disjunctive. This is understandable, given the sentence structure employed by the Court.

We have, however, analyzed the order against the provisions of R. 1:21-2(a)(4) and note that the rule requires only a showing of "at least one" of the five specific or one general reason stated in the ...


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