J-S06023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER L. GIDDINGS, ESQUIRE, 

INDIVIDUALLY AND AS AN AGENT 

AND/OR PRINCIPAL OF CHRISTOPHER L. 

GIDDINGS, P.C.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DANNY ELMORE, ESQUIRE 

INDIVIDUALLY AND AS AN AGENT 

AND/OR PRINCIPAL OF ELMORE, PUGH & 

WARREN, P.C. AND JEFFREY B. KILLINO, 

ESQUIRE INDIVIDUALLY AND AS AN 

AGENT AND/OR PRINCIPAL OF THE 

KILLINO FIRM, P.C.

APPEAL OF: JEFFREY B. KILLINO, 

ESQUIRE

No. 312 EDA 2014

Appeal from the Order October 16, 2012

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 1212

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: FILED JUNE 11, 2015

Jeffrey Killino, Esquire, appeals from the order of the Court of Common 

Pleas of Philadelphia County dated October 16, 2012, which granted 

Appellee Christopher Giddings, Esquire’s, motion for costs and expenses 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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connected to discovery in aid of execution in the amount of $10,048.00 and 

$500.00 for counsel fees. Upon careful review, we quash the appeal.

This case arises out of a dispute between attorneys over counsel fees 

in a matter that settled for $4.5 million, Jordan v. Nazareth Hospital, et 

al, Philadelphia CCP, February Term 2008; No. 1054. On July 12, 2010, 

Giddings filed a complaint in declaratory judgment seeking an order directing 

Killino to pay him an agreed upon referral fee of 33 1/3 percent of the 

attorney fee in Jordan. As the matter progressed, the court granted 

Giddings’ motion to compel interpleader, denied Killino’s motion for 

summary judgment, and on June 28, 2011, granted Giddings’ motion for 

summary judgment and ordered Killino to pay Giddings $550,333.33 

immediately. 

On July 5, 2011, Killino filed an appeal to this Court. However, he did 

not file “with the clerk of the lower court . . . appropriate security in the 

amount of 120% of the amount found due to the lower court and remaining 

unpaid,” as required by Pa.R.A.P. 1731(a). Accordingly, there was no 

automatic supersedeas. Because Killino did not pay the amount owed, and 

there was no supersedeas, on July 29, 2011, while the appeal was pending, 

Giddings issued writs of execution against Killino’s real estate, bank accounts 

and personal property. On November 11, 2011, Giddings filed a motion for 

reimbursement of fees associated with the issuance of the writs.

On September 7, 2012, this Court affirmed the grant of summary 

judgment in favor of Giddings. Giddings v. Elmore, 60 A.3d 846 (Pa. 
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Super. 2012) (unpublished memorandum). Giddings then informed the trial 

court of the affirmance, and requested that the court rule on his outstanding 

motion for reimbursement. The court scheduled argument for October 16, 

2012. 

On October 9, 2012, Killino filed a petition for allowance of appeal of 

this Court’s order. 

The argument on Giddings’ motion took place as scheduled on October 

16, 2012, but Killino did not appear. The trial court issued an order on that 

date ordering Killino to pay $10,048.00 for costs and fees related to 

discovery in aid of execution and $500.00 for preparation and filing of the 

motion. Killino filed a motion for reconsideration on October 18, 2012.

By order dated October 29, 2013, the Pennsylvania Supreme Court 

denied Killino’s petition for allowance of appeal from this Court’s order 

granting summary judgment. Giddings v. Elmore, 60 A.3d 846 (Pa. 

2013). Shortly thereafter, Killino filed another motion for reconsideration, 

which the trial court denied on December 12, 2013. On December 18, 2013, 

Killino filed a notice of appeal from the October 16, 2012 order for costs and 

fees and the December 12, 2013 order denying his motion for 

reconsideration. 

On appeal, Killino raises the following issues for our review:

1. Did the trial court commit an error of law and/or abuse its 

discretion when it granted . . . Giddings[’] . . . motion for 

costs and fees while the case was under appeal and in 

deferred status?
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2. Did the trial court commit an error of law and/or abuse its 

discretion when it did not decide . . . Gidding[’s] . . . motion 

for costs and fees on the merits, as . . . Killino . . . had 

already properly shown cause for denial of the motion for 

costs and fees prior to the October 2012 hearing?

3. Did the trial court commit an error of law and/or abuse its 

discretion when it awarded . . . Giddings . . . costs that he 

was prohibited from recovering?

4. Did the trial court commit an error of law and/or abuse its 

discretion when it awarded . . . Giddings . . . attorney’s fees 

that he was prohibited from recovering?

5. Did the trial court commit an error of law and/or abuse its 

discretion when it awarded . . . Giddings . . . exorbitant 

attorney’s fees?

Appellant’s Brief at 4.

Killino’s December 18, 2013 notice of appeal states that he appeals 

from the October 16, 2012 order granting Giddings’ motion for recovery of 

expenses and the subsequent December 12, 2013 order denying 

reconsideration. As an initial matter, we note that the order denying 

reconsideration is not appealable. “Pennsylvania case law is absolutely clear 

that the refusal of a trial court to reconsider . . . a final decree is not 

reviewable on appeal.” Provident Nat’l Bank v. Rooklin, 378 A.2d 893, 

897 (Pa. Super. 1977). Accordingly, we focus exclusively on the October 16, 

2012 order.

Killino raises two related arguments, both of which we are constrained 

to reject. First, he asserts that the trial court erred in granting Giddings’ 

motion for reimbursement while the grant of summary judgment was on 
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appeal and second, he argues that his December 18, 2013 notice of appeal 

from the October 16, 2012 order was timely filed.

Killino relies on the general rule that “after an appeal is taken . . . the 

trial court or other government unit may no longer proceed further in the 

matter.” Pa.R.A.P. 1701(a). However, Pa.R.A.P. 1701(b) provides that 

“after an appeal is taken . . . the trial court . . . may . . . take other action . . 

. otherwise ancillary to the appeal.” Pa.R.A.P. 1701(b). Rule 1701(c) 

clarifies that “where only a particular item, claim or assessment adjudged in 

the matter is involved in an . . . appeal . . . the appeal . . . shall operate to 

prevent the trial court . . . from proceeding further with only such item, 

claim or assessment.” Pa.R.A.P. 1701(c). Accordingly, the only issues the 

trial court was precluded from addressing during the pendency Killino’s 

appeal were those related to the entry of summary judgment in favor of 

Giddings.

In Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1 (Pa. 

2013), an automobile manufacturer argued that Rule 1701(b) precluded the 

trial court from acting on a counsel fee petition while the case was on 

appeal. Our Supreme Court disagreed because “Pennsylvania law is well 

established that a petition for attorneys’ fees is an ancillary matter, which 

the trial court retains authority to decide after entry of judgment on the 

verdict.” Id. at 49. See also Old Forge School Dist. V. Highmark, 924 

A.2d 1205 (Pa. 2007) (motion for attorneys’ fees constitutes separate 

matter properly addressed by trial court while underlying matter on appeal).
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Giddings’ motion for reimbursement was an ancillary matter involving 

costs and fees related to his attempt to execute on the summary judgment 

award. Although Killino filed a timely appeal of the award, he did not file 

“appropriate security in the amount of 120% of the amount found due by 

the lower court and remaining unpaid,” Pa.R.A.P. 1731(a), and accordingly, 

there was no automatic supersedeas. With no stay in place, Giddings was 

entitled to execute on the judgment despite the pendency of an appeal. 

Accordingly, the trial court had jurisdiction to enter the October 16, 2012 

order for costs and fees related to executing on the judgment.

The October 16, 2012 order was a final order because it “dispose[d] of 

all claims of all parties,” Pa.R.A.P. 341(b)(1), and accordingly, a notice of 

appeal had to be “filed within 30 days after the entry of the order.” 

Pa.R.A.P. 903(a). However, Killino did not file a notice of appeal until 

December 18, 2013, apparently believing that his July 5, 2011 appeal to this 

Court and his subsequent petition for allowance of appeal to the Supreme 

Court on October 9, 2012 acted to stay any action on Giddings’ motion for 

reimbursement. As explained herein, this conclusion was mistaken.

Under Rule 903(a), Killino had until November 16, 2012 to file a notice 

of appeal. Mindful that “the court may not enlarge the time for filing of a 

notice of appeal,” Pa.R.A.P. 105(b), we are constrained to quash Killino’s 

appeal.

Appeal quashed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/11/2015