Robinson v. Christopher Coyle & Henry & Beaver, LLP, J. A34009/14

CourtSuperior Court of Pennsylvania
Writing for the CourtMEMORANDUM BY FORD ELLIOTT, P.J.E.
Decision Date28 April 2015
Docket NumberNo. 700 MDA 2014,J. A34009/14,700 MDA 2014
PartiesMICHELLE ROBINSON, Appellant v. CHRISTOPHER COYLE AND HENRY & BEAVER, LLP

MICHELLE ROBINSON, Appellant
v.
CHRISTOPHER COYLE AND HENRY & BEAVER, LLP

J. A34009/14
No. 700 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

APRIL 28, 2015


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order, March 21, 2014, in the Court of Common Pleas of Lebanon County
Civil Division at No. 2012-01096

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:

Michelle Robinson appeals, pro se, from the order of March 21, 2014, granting defendants/appellees' motion for judgment on the pleadings and dismissing appellant's complaint with prejudice. We affirm.

On October 5, 2010, a jury convicted appellant of disorderly conduct, and she was sentenced to one year of probation. Appellant was found not guilty of recklessly endangering another person and criminal conspiracy. The charges were brought in connection with an incident on August 30, 2009, wherein appellant and her co-defendant, Anne Coyle, were spraying water across the roadway next to their property, disrupting traffic. Apparently, appellant and Coyle were upset about excessive noise from passing motorcycles. The underlying facts of this matter were recounted in

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detail in this court's memorandum disposing of appellant's direct appeal. Commonwealth v. Robinson, 64 A.3d 14 (Pa.Super. 2012) (unpublished memorandum), appeal denied, 72 A.3d 602 (Pa. 2013).

On December 10, 2012, this court affirmed the judgment of sentence, finding, inter alia, that the evidence was sufficient to sustain appellant's conviction of disorderly conduct. Appellant's petition for reargument was denied. Appellant filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on July 24, 2013. Appellant also filed a federal habeas corpus petition, which was dismissed on August 11, 2014, on the basis that appellant was not "in custody" for purposes of invoking federal habeas jurisdiction where, at the time she filed her petition, she was no longer subject to the terms of her probation. Robinson v. Barry, 2014 WL 3908291 (M.D.Pa. 2014).

On June 4, 2012, appellant initiated the instant action by writ of summons filed in Lebanon County and served on the defendants/appellees, Christopher Coyle and Henry & Beaver, LLP, at their place of business. On July 12, 2012, upon praecipe filed by appellees, appellant filed her complaint, alleging legal malpractice committed by appellees in connection with their representation of her during the 2009 criminal matter.

On July 18, 2012, appellant filed motions for recusal and for change of venue to Philadelphia. These motions were denied on November 1, 2012. Appellant's motion for sanctions was also denied. Following preliminary

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objections to the complaint filed by appellees, appellant filed a motion for leave to amend the complaint which was granted on January 10, 2013. Appellant filed an amended complaint on January 29, 2013, bringing claims of professional negligence and forgery. The forgery claim related to appellant's allegation that Attorney Coyle had forged her name on a defense continuance motion, thereby thwarting her ability to pursue a dismissal under Pa.R.Crim.P. 600, the speedy trial rule.

On February 7, 2013, appellees filed preliminary objections to the amended complaint. Both parties submitted briefs and appeared at oral argument on May 1, 2013. Appellant filed an ADA accommodation request for a court stenographer during the May 1, 2013 argument which was granted. On July 3, 2013, the trial court issued an order staying the proceedings pending resolution of appellant's petition for allowance of appeal in the underlying criminal case. As stated above, that petition was denied on July 24, 2013. On August 9, 2013, the trial court sustained appellees' preliminary objection in the nature of a demurrer to appellant's claim of negligence, and dismissed Count 1 of the amended complaint. The trial court found that under Bailey v. Tucker, 621 A.2d 108 (Pa. 1993), governing actions in criminal malpractice, appellant was unable to plead a legally sufficient claim of professional negligence. Appellant's motion for reconsideration was denied.

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On September 3, 2013, appellees filed an answer and new matter to the amended complaint. On September 17, 2013, appellant filed a reply. Appellees filed a motion for judgment on the pleadings on October 16, 2013, and, pursuant to local rule, a praecipe for disposition on December 5, 2013. On March 21, 2014, the trial court granted appellees' motion for judgment on the pleadings and dismissed the matter with prejudice, finding that there is no civil action for forgery. The trial court also rejected appellant's argument that she should be permitted to substitute fraudulent misrepresentation for forgery in Count 2, finding that while fraudulent misrepresentation is a recognized civil cause of action in Pennsylvania, appellant's allegations in her amended complaint did not make out a prima facie case of fraudulent misrepresentation. In addition, the trial court stated that it would not be inclined to permit appellant to file a second amended complaint, where she would still be unable to set forth a viable claim for fraudulent misrepresentation.

Appellant filed a timely notice of appeal on April 17, 2014. Appellant was not ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; however, apparently she filed one anyway, listing nine separate claims of error. (Trial court opinion, 5/13/14 at 2.) On May 13, 2014, the trial court filed a supplemental Rule 1925(a) opinion.

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Appellant's issues on appeal may be summarized as follows: 1) the trial court erred in dismissing her legal malpractice claim; 2) the trial court erred in dismissing her amended complaint where she made out all the elements of fraudulent misrepresentation, although Count 2 was actually titled "forgery"; 3) the trial court erred in denying her motion for recusal; and 4) the trial court erred in denying her request for a transcript of the May 1, 2013 oral argument on appellees' preliminary objections. None of these issues has merit.

Initially, we address appellees' contention that the appeal should be quashed for the numerous defects in appellant's brief and reproduced record. (Appellees' brief at 14-17.) For example, appellant includes documents in the reproduced record that are not in the certified record; her 89-page brief does not contain a certification that the brief complies with the word count limits as required by the Rules of Appellate Procedure; her brief does not contain appropriate citations to the record; and she failed to attach her Rule 1925(b) statement to her brief as required by Pa.R.A.P. 2111(a)(11).

"This Court 'is willing to liberally construe materials filed by a pro se appellant'; however, [appellant] is not entitled to special treatment by virtue of the fact that he 'lacks legal training.'" Commonwealth v. Maris, 629 A.2d 1014, 1017 n.1 (Pa.Super. 1993), quoting O'Neill v. Checker Motors Corp., 567 A.2d 680, 682 (Pa.Super. 1989). See also Commonwealth v.

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Lyons, 833 A.2d 245, 252 (Pa.Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) ("a pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of the Court. This Court may quash or dismiss an appeal if an appellant fails to conform with the requirements set forth in the Pennsylvania Rules of Appellate Procedure.") (citations omitted). Nevertheless, we find that the defects in appellant's brief do not prevent this court from conducting meaningful review of the issues on appeal; therefore, we decline to quash the appeal, however, no consideration will be given to materials not a part of the certified record.

First, we address the order of August 9, 2013, granting appellees' preliminary objection in the nature of a demurrer and dismissing appellant's negligence claim, pleaded as Count 1 of the amended complaint. The trial court found that appellant was unable to plead a legally sufficient claim of professional negligence; in particular, that she could not establish the fifth element of criminal legal malpractice required by Bailey, the successful pursuit of post-trial relief dependent upon attorney error.

Our scope of review is plenary when reviewing a trial court's order sustaining preliminary objections in the nature of a demurrer. See Glassmere Fuel Serv., Inc. v. Clear, 900 A.2d 398, 401 (Pa.Super. 2006). "In order to determine whether the trial court properly sustained Appellee's preliminary objections, this court must consider as true all of the well-pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts." Id. at 402. In conducting appellate review, preliminary objections may be sustained by the trial court only if the case is free and clear of

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doubt. See Knight v. Northwest Sav. Bank, 747 A.2d 384, 386 (Pa.Super. 2000).

Wheeler v. Nationwide Mut. Fire Ins. Co., 905 A.2d 504, 505 (Pa.Super. 2006), appeal denied, 916 A.2d 1103 (Pa. 2007).

[A] plaintiff seeking to bring a trespass action against a criminal defense attorney, resulting from his or her representation of the plaintiff in criminal proceedings, must establish the following elements:

(1) The employment of the attorney;

(2) Reckless or wanton disregard of the defendant's interest on the part of the attorney;

(3) the attorney's culpable conduct was the proximate cause of an injury suffered by the defendant/plaintiff, i.e., "but for" the attorney's conduct, the defendant/plaintiff would have obtained an aquittal or a complete dismissal of the charges.[Footnote 12]

[Footnote 12] The defendant/plaintiff must prove by a preponderance of the evidence that he did not commit any unlawful acts with which he was charged as well as any lesser offenses included therein. Resolving this question will perhaps cause the greatest consternation. However, the only
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