Hill v. Thorne

• Decision Date: 09 December 1993
• Parties: Jeffrey D. HILL, Appellant, v. Ralph W. THORNE, Appellee.
• Court: Pennsylvania Superior Court

Page 186

635 A.2d 186

430 Pa.Super. 551

Jeffrey D. HILL, Appellant, v. Ralph W. THORNE, Appellee.

Superior Court of Pennsylvania.

Submitted Aug. 23, 1993.

Filed Dec. 9, 1993.

[430 Pa.Super. 553] Jeffrey D. Hill, appellant, pro se.

Joseph D. Smith, Williamsport, for appellee.

Before OLSZEWSKI, POPOVICH and HESTER, JJ.

OLSZEWSKI, Judge:

Jeffrey Hill appeals an order dismissing his complaint against attorney Ralph Thorne. The trial court dismissed the complaint for Hill's failure "to conform to the Pennsylvania Rules of Civil Procedure." In examining the trial court's rather summary opinion accompanying the above order, we have some difficulty determining exactly how Hill failed to conform to the rules. The trial court does refer us to an opinion in a different action by Hill, in which that court more thoroughly set forth its reasons for dismissing the action. See Hill v. Holland, et al., 414 Pa.Super. 675, 599 A.2d 706 (1991). We have obtained a copy of this opinion, and can now proceed to address Hill's pro se appeal.

Hill's present action appears to be a malpractice claim against one of his court-appointed attorneys, Ralph Thorne. In addressing another appeal of Hill's, we discovered that Thorne had managed to get this Court's affirmance of Hill's criminal convictions reversed by the Pennsylvania Supreme Court. Despite this unusual success, Hill alleges malpractice, arguing that Thorne should have procured a complete dismissal, not merely a remand for a new trial.

We also cannot help but note that Hill has filed numerous suits against not only his court appointed counsel, but district attorneys, judges and other county officials. Most of Hill's handwritten motions, appeals, etc. show little respect for judicial officers, but fire insults and invective in every direction. In the present appeal, Hill describes the Lycoming County Court of Common Pleas as a "Legalized Mafia." Hill's preferred epithet for this Court is "you sanctimonious hypocrites." The essence of Hill's appeal seems to be that "[t]he prothonotary, the sheriff, and the judge along with the defendant who is an officer in their court don't want me feeding the crooked Lycoming County kangaroo court anymore crow, so they conspired to stop me and are currently involved in shirking responsibility for their dirty, devious political chicanery and skullduggery." Appellant's brief at 4. At least Hill is a colorful writer.

But our task is to determine if the lower court erred in dismissing Hill's complaint. The trial court apparently based its dismissal on two grounds: lack of jurisdiction for failure to properly serve process, and failure to state a cause of action. We will address the service of process issue first.

I.

Our review of the record before us indicates that Hill attempted to begin this action by sending (via certified mail) copies of his complaint, with instructions for service, to both the prothonotary and the sheriff. The prothonotary apparently lost the original complaint, but later was given a copy by defendant Thorne. The prothonotary did not forward a copy of the complaint to the sheriff for service. Meanwhile, the sheriff did not regard the complaint which Hill mailed directly to him as process which he was required to serve. Hence, original process was never served on defendant Thorne by the sheriff, as required by Pa.R.C.P. 400.

Hill argues that under Pa.R.C.P. 205.1, he could properly file his complaint and commence legal proceedings by sending copies to Even if Hill's style of litigation might strike one as distasteful or annoying, he has a constitutional right to be heard in our courts. Article I, § 11 of the Pennsylvania Constitution provides:

the prothonotary and sheriff by certified mail. It is not his fault, Hill contends, if the prothonotary refuses to forward copies to the sheriff, and the sheriff refuses to serve anything which doesn't come from the prothonotary. We agree.

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

It is difficult to determine from the record before us exactly why Hill's complaint was never served by the Lycoming County Sheriff. The trial court's opinion merely tells us that "[t]he record does not show a return of service by the Sheriff." Hill provides us with bits of affidavits and testimony which support his contention that the prothonotary refused to forward any of his complaints to the sheriff, and the sheriff refused to serve anything not forwarded from the prothonotary. The record also discloses that the Lycoming County Sheriff never notified Hill of the success or failure of service, pursuant to Pa.R.C.P. 405(g). Hill has also provided us with returns of service from Centre and Mercer Counties, to show that he has had no problems getting process served there. Finally, Hill argues that in the face of repeated inaction by the prothonotary and sheriff, he did the only reasonable thing: he served defendant Thorne directly by certified mail. Indeed, the record indicates that when the prothonotary lost Hill's complaint, Thorne produced a copy to replenish the prothonotary's files.

In its opinion, the trial court offered no response to Hill's contention that the sheriff consistently refused to serve process for him. Rather, the trial court opined that since Hill was proceeding pro se, he must be "encountering difficulties in mastering and complying with the Rules of Civil Procedure." Trial court opinion, 4/15/92 at 2. The trial court, without specifying precisely what procedural rules Hill disregarded, dismissed his complaint on this basis.

We are mindful of our caselaw holding that the service requirements of Pa.R.C.P. 400 be strictly followed. See, e.g. Sharp v. Valley Forge Medical Center, 422 Pa. 124, 221 A.2d 185 (1966). But our review of the record, such as it is, convinces us that Hill is quite familiar with our procedural rules, and has done everything he can to comply with them. We have held that untoward circumstances, such as interference by a third party which prevents delivery of process to the sheriff, can excuse a plaintiff from the strictures of Rule 400. Sweet v. Ayres, 277 Pa.Super. 236, 419 A.2d 749 (1980). Here, it appears that the prothonotary did not properly handle Hill's complaint by delivering it to the sheriff for service. When a constitutional right is at stake, we cannot avert our eyes to the apparent "untoward circumstances" which have prevented Hill from obtaining proper service of process.

At this point we might remand and order the sheriff to properly serve Hill's complaint, so as to bring Thorne into the trial court's jurisdiction. In some circumstances, however, interests of judicial economy allow us to "regard as done that which ought to have been done." McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 254, n. 1, 561 A.2d 328, 330, n. 1 (1989). Here, defendant Thorne has received a copy of the complaint via certified mail, a practice which constitutes proper service in other circumstances. See Pa.R.C.P. 403. In order to better secure a just, speedy and inexpensive determination in this action, we will regard Hill's personal service as satisfactory, since it is at most a technical defect of procedure which does not affect the substantial rights of the parties. See Pa.R.C.P. 126; Pa. Const. Art. I, § 11. We therefore reverse the trial court's order dismissing Hill's complaint for improper service.

II.

It appears that the trial court, by reference to an earlier opinion, also bases its dismissal on Hill's failure to state a cause of action in his complaint. The notion of an indigent criminal defendant suing his court-appointed In order to plead legal malpractice, Hill's complaint must allege the three necessary elements of this cause of action: "(1) the employment of the attorney or other basis for a duty on the part of the attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) negligence by the attorney which was the proximate cause of damage to the plaintiff." Quick, supra, at 121, 568 A.2d at 224 (citations omitted). ¹ Where these allegations are adequately set forth, a pro se complaint will not be dismissed just because it is not artfully drafted. See ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986). Any doubts about sustaining preliminary objections in the nature of a demurrer should be resolved in favor of overruling the demurrer. Id. at 138-39, 504 A.2d at 283.

counsel for malpractice may strike us as impudent, but such a cause of action has been recognized by this Court. Quick v. Swem, 390 Pa.Super. 118, 568 A.2d 223 (1989) (convicted criminal defendant's suit against public defender for legal malpractice not barred by the Post Conviction Relief Act, 42 Pa.C.S.A. § 9542, et seq.).

We have obtained a copy of Hill's handwritten complaint in this matter, and we must disagree with the trial court's summary conclusion that it fails to state a cause of action. Unlike Hill's other court papers which have come before us, this complaint is organized, polite, understandable and thorough. Hill devotes one section to each of the three elements of his malpractice claim. Most of the factual allegations are supported by citations to earlier court documents and transcripts. Some of Hill's claims sound vague or mysterious, but Hill presents several straightforward claims which, if proven true, would establish a claim for legal malpractice.

The best evidence that Hill has stated a cognizable claim in his complaint is the complaint itself:

LEGAL MALPRACTICE COMPLAINT

I, Jeffrey D. Hill, the plaintiff in the above-captioned matter, respectfully present the following in my legal malpractice action against the defendant, attorney Ralph W. Thorne:

1. Attorney Ralph W. "Pat" Thorne was ordered by the Pa.Supreme Court-MD at...