Coley, L. v. Rocco, J. ( 2019 )


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  • J-A22024-19
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    LILLIE COLEY AND                          :     IN THE SUPERIOR COURT OF
    WANDA SATTERTHWAITE,                      :           PENNSYLVANIA
    :
    Appellants               :
    :
    v.                            :
    :
    JAMES ROCCO III, ESQ. AND                 :
    ROCCO LAW FIRM, LLC,                      :
    :
    Appellees                :     No. 2083 EDA 2018
    Appeal from the Judgment Entered June 12, 2018
    in the Court of Common Pleas of Philadelphia County
    Civil Division at No(s): 02625 November Term, 2016
    BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*
    MEMORANDUM BY STRASSBURGER, J.:                   FILED DECEMBER 03, 2019
    Lillie Coley and Wanda Satterthwaite (collectively, Appellants) appeal
    from the judgment entered on June 12, 2018, against them and in favor of
    James Rocco III, Esquire and Rocco Law Firm, LLC (collectively, Rocco Law)
    in this legal malpractice action.
    The    underlying   action    involves   establishment   of   paternity   of
    Satterthwaite’s biological child, R.S. (Child), born in July 1993. The record
    indicates that Coley was awarded custody of Child. A prior panel of this Court
    set forth the relevant facts and procedural history of the underlying action as
    follows.
    In June 2010, [Satterthwaite] filed [in the trial court] two motions
    for genetic testing to determine the paternity of [C]hild, one
    naming [S.C.] and the second naming another individual, [R.G.],
    who had previously been identified as the father of [C]hild and
    * Retired Senior Judge assigned to the Superior Court.
    J-A22024-19
    had been ordered to pay for the support of [C]hild. On July 16,
    2010, the [trial] court denied [Satterthwaite’s] motions based on
    the doctrine of estoppel. In its order with respect to [S.C.], the
    trial court stated that [Satterthwaite] could not wait seventeen
    years to name a second person as the father of [C]hild when she
    identified another person as the father sixteen years before and
    never previously attempted to recant that identification. In March
    2011, [Satterthwaite] filed a second motion for genetic testing
    naming [S.C.].[1] By order dated May 19, 2011, the trial court
    denied this second motion for genetic testing on the basis that the
    matter was res judicata[,] as a final order was entered in this
    matter on July 16, 2010.
    Satterthwaite v. Carter, 
    75 A.3d 561
     (Pa. Super. 2013) (unpublished
    memorandum at 1-2).
    In October 2011, Coley retained Rocco Law to petition the trial court to
    vacate the July 16, 2010 and the May 11, 2011 orders denying Satterthwaite’s
    petitions for genetic testing of S.C. At the time Rocco Law was retained, it
    was well past the time period to appeal these orders; however, Rocco Law
    successfully petitioned the trial court to vacate the orders.2 The trial court
    heard argument on the matter on May 15, 2012, which Attorney Rocco, Coley,
    and Satterthwaite attended, along with S.C. and his counsel. By order dated
    June 14, 2012, the trial court granted the petition filed on behalf of
    Satterthwaite and vacated the two orders at issue.         On appeal, this Court
    reversed, holding that the trial court lacked jurisdiction to vacate the orders
    1   In April 2011, R.G.’s paternity of Child was disestablished.
    2On January 12, 2012, Rocco Law filed a petition to vacate on behalf of Coley,
    and on April 27, 2012, Rocco Law filed an amended petition to vacate on behalf
    of Coley and a petition to vacate on behalf of Satterthwaite.
    -2-
    J-A22024-19
    because more than 30 days had passed since they were entered and no
    extraordinary   cause   existed   to   justify   the   trial   court’s   intervention.
    Satterthwaite, supra (unpublished memorandum at 4).
    More than three and one-half years later, on November 29, 2016,
    Appellants filed pro se a complaint against Rocco Law alleging legal
    malpractice arising from Rocco Law’s representation in the underlying action.
    Specifically, Appellants alleged Rocco Law should have “just requested the
    orders [for genetic testing] be set aside for [] Coley since they were no longer
    in effect” and that Rocco Law improperly filed a petition to vacate the orders
    on behalf of Satterthwaite without Appellants’ knowledge.                  Complaint,
    11/29/2016, at 3-4, 10 (unnecessary capitalization omitted). Rocco Law filed
    an answer and new matter on January 23, 2017. Appellants filed a reply to
    the new matter on February 10, 2017.
    On July 20, 2017, Rocco Law filed a motion for summary judgment,
    claiming the action was barred by the statute of limitations.              Appellants
    opposed,3 and on October 24, 2017, the trial court denied the motion for
    summary judgment.       Thereafter, Rocco Law filed a motion to strike and
    Appellants filed motions for extraordinary relief and to proceed in forma
    pauperis, all of which were denied by the trial court.
    3 On September 19, 2017, the trial court quashed Appellants’ opposing motion
    for procedural deficiencies. Appellants refiled an answer in opposition on
    October 6, 2017.
    -3-
    J-A22024-19
    On April 4, 2018, Rocco Law filed a motion for judgment on the
    pleadings.4 Appellants filed a memorandum in opposition on April 10, 2018,
    and Rocco Law replied on April 20, 2018. On April 23, 2018, Appellants filed
    a second response in opposition to the motion for judgment on the pleadings.
    Also on April 23, 2018, Appellants sought leave to amend their complaint. 5
    The next day, April 24, 2018, Appellants filed a response to Rocco Law’s April
    20, 2018 reply. On May 3, 2018, Rocco Law filed a reply to Appellants’ second
    response in opposition.
    4   Rocco Law summarized their motion follows.
    [Rocco Law’s] motion sought judgment in their favor on the basis
    that (1) the materials attached to [Appellants’] complaint did not
    support the premise of their claims; (2) [Appellants’] claims failed
    as a matter of law because they did not allege they sustained
    damages attributable to actions conduct by [Rocco Law]; (3)
    [Appellants’] claims failed as a matter of law because the Rules of
    Professional Conduct are not a basis for civil liability against
    [Rocco Law]; (4) [Appellants’] alleged damages, in the form of
    disgorgement of attorneys’ fees and costs in this action, punitive
    damages and fines and reprimands, did not provide a valid
    measure of actual damages and as a result [Appellants’] claims
    failed; and (5) [to the extent Appellants alleged a breach of
    contract claim, the] claim failed because [Appellants] did not
    allege the existence of a contract between Satterthwaite and
    [Rocco Law].
    Rocco Law’s Brief at 2.
    5 Appellants sought to attach the missing third page of the fee agreement
    between Rocco Law and Coley, and to add a new cause of action for
    “concealment of evidence.” 4/23/2018, at 1-5 (unpaginated). On May 31,
    2018, the trial court granted the motion as to the missing page, but denied it
    as to the new claim. Order, 5/31/2018.
    -4-
    J-A22024-19
    On June 12, 2018, the trial court granted Rocco Law’s motion for
    judgment on the pleadings and entered judgment in favor of Rocco Law and
    against Appellants. Appellants moved for reconsideration on July 6, 2018,
    which Rocco Law opposed.6        On July 9, 2018, Appellants filed the instant
    appeal. Both Appellants and the trial court complied with Pa.R.A.P. 1925.
    Appellants present the following question for our review: “Did the trial
    court err as a matter of law in holding that no genuine issues of material fact
    existed and the moving party was entitled to judgment on the pleadings?”
    Appellants’ Brief at 5.
    Pennsylvania Rule of Civil Procedure 1034 governs motions for judgment
    on the pleadings and provides that “[a]fter the relevant pleadings are closed,
    but within such time as not to unreasonably delay trial, any party may move
    for judgment on the pleadings.” Pa.R.Civ.P. 1034(a). “A motion for judgment
    on the pleadings is similar to a demurrer. It may be entered when there are
    no disputed issues of fact and the moving party is entitled to judgment as a
    matter of law.” Wachovia Bank, N.A. v. Ferretti, 
    935 A.2d 565
    , 570 (Pa.
    Super. 2007) (citation omitted).
    Appellate review of an order granting a motion for judgment on
    the pleadings is plenary. The appellate court will apply the same
    standard employed by the trial court. A trial court must confine
    its consideration to the pleadings and relevant documents. The
    court must accept as true all well pleaded statements of fact,
    admissions, and any documents properly attached to the
    pleadings presented by the party against whom the motion is filed,
    considering only those facts which were specifically admitted.
    6   It does not appear the trial court ruled on said motion.
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    J-A22024-19
    
    Id.
     (citation omitted).
    As a preliminary matter, we address Appellants’ compliance with our
    rules of appellate procedure. After a review of the record, and Appellants’
    brief and reply brief, we conclude Appellants have waived their challenge on
    appeal by their deficient appellate brief. Wilkins v. Marsico, 
    903 A.2d 1281
    ,
    1284 (Pa. Super. 2006) (“This Court may … dismiss an appeal if the appellant
    fails to conform to the requirements set forth in the Pennsylvania Rules of
    Appellate Procedure.”), citing Pa.R.A.P. 2101.         Appellants’ argument is
    woefully undeveloped.      Other than a boilerplate restatement of the law
    relating to judgment on the pleadings, Appellants do not discuss or cite to any
    pertinent authorities.    Compare Appellants’ Brief at 17-23 with Pa.R.A.P.
    2119(a) (stating argument section of brief must contain discussion and
    citation of pertinent authorities); see also Hawkey v. Peirsel, 
    869 A.2d 983
    ,
    990 (Pa. Super. 2005) (holding failure to cite to relevant authority in support
    of argument resulted in waiver of issue presented on appeal). Nowhere in
    Appellants’ brief do they state the elements for a legal malpractice cause of
    action or discuss how the factual allegations and exhibits attached to their
    complaint support such a claim.7 Accordingly, because Appellants have failed
    7 Appellants make a passing reference to “the elements required to show legal
    malpractice” in their reply brief, but fail to set forth all of the elements and
    fail to cite or discuss relevant case law. See Appellants’ Reply Brief at 6, 11.
    Similarly, in their reply brief, Appellants make a passing reference to a claim
    for fraud, but fail to cite or discuss any relevant authorities or how the factual
    -6-
    J-A22024-19
    to develop their issue on appeal in any meaningful fashion capable of review,
    it is waived.   Commonwealth v. Patterson, 
    180 A.3d 1217
    , 1229 (Pa.
    Super. 2018) (finding waiver because appellant’s brief failed to develop issue
    in any meaningful fashion capable of appellate review).
    Even if Appellants did not waive their issue on appeal, we would
    nonetheless conclude it is without merit.     The following principles apply to
    Appellants’ claim for legal malpractice.
    An action for legal malpractice may be brought in either contract
    or tort. The elements of a legal malpractice action, sounding in
    negligence, include: (1) employment of the attorney or other basis
    for a duty; (2) failure of the attorney to exercise ordinary skill and
    knowledge; and (3) that such failure was the proximate cause of
    the harm to the plaintiff. With regard to a breach of contract
    claim, an attorney who agrees for a fee to represent a client is by
    implication agreeing to provide that client with professional
    services consistent with those expected of the profession at large.
    Moreover, … the two-year limitations period applies to the
    negligence claim and the four-year limitations period applies to
    the breach of contract claim.
    Wachovia Bank, N.A., 
    935 A.2d at 570-71
     (citations, brackets, and some
    quotation marks omitted).
    An essential element of legal malpractice cause of action is “proof of
    actual loss rather than a breach of a professional duty causing only nominal
    damages, speculative harm or the threat of future harm.”             Kituskie v.
    Corbman, 
    714 A.2d 1027
    , 1030 (Pa. 1998).
    A legal malpractice action is different because … a plaintiff must
    prove a case within a case since he must initially establish by a
    allegations and exhibits attached to their complaint support such a claim. Id.
    at 9, 11.
    -7-
    J-A22024-19
    preponderance of the evidence that he would have recovered a
    judgment in the underlying action…. It is only after the plaintiff
    proves he would have recovered a judgment in the underlying
    action that the plaintiff can then proceed with proof that the
    attorney he engaged to prosecute or defend the underlying action
    was negligent in the handling of the underlying action and that
    negligence was the proximate cause of the plaintiff’s loss since it
    prevented the plaintiff from being properly compensated for his
    loss.
    Id.
    [T]he Pennsylvania Supreme Court has firmly established the
    elements in a legal malpractice cause of action and emphasized
    that proof of actual loss is not satisfied by evidence of remote or
    speculative harm.       Accordingly, to prove actual injury,
    appellant must demonstrate that she would have prevailed
    in the underlying action in the absence of appellees’
    alleged negligence.
    Communications Network Int'l, Ltd. v. Mullineaux, 
    187 A.3d 951
    , 960
    (Pa. Super. 2018), quoting Myers v. Robert Lewis Seigle, P.C., 
    751 A.2d 1182
    , 1185 (Pa. Super. 2000) (emphasis in original).
    Instantly, in support of their legal malpractice cause of action,
    Appellants averred that Coley retained Rocco Law to petition the trial court to
    vacate two orders for genetic testing of S.C., but Rocco Law filed a petition on
    behalf of Satterthwaite     without Appellants’ knowledge       and consent.8
    8 Appellants have made no effort to identify whether their legal malpractice
    claim sounds in tort or breach of contract. It appears a claim sounding in tort
    would be barred by the statute of limitations, but we need not make such a
    determination because, as discussed infra, under either theory, Appellants fail
    to satisfy the elements of the claim. Appellants also argue there is a factual
    dispute as to whether Rocco Law represented Satterthwaite. See Appellants’
    Brief at 19-20; Appellants’ Reply Brief at 11. Even accepting as true
    Appellants’ claim that Rocco Law did not represent Satterthwaite, Appellants
    -8-
    J-A22024-19
    Complaint, 11/29/2016, at 1, 3, 5, 6.            Appellants argue that said filing
    rendered “Coley’s claim moot.”      See Appellants’ Brief at 19.        In essence,
    Appellants claimed that Rocco Law only represented Coley, not Satterthwaite,
    and took advantage of Satterthwaite while she was in the hospital by having
    Satterthwaite   sign   the   verification   to   a   petition   to   vacate    without
    Satterthwaite’s knowledge.      Complaint, 11/29/2016, at 6.           According to
    Appellants, Rocco Law “switched” clients and “did this for the sole reason to
    help [] S.C.’s defense team.” Id. at 6, 8 (capitalization altered). Appellants
    asserted that since Coley had custody of Child, Coley’s petition to vacate, not
    Satterthwaite’s, should have been considered by the trial court.              Id. at 7.
    According to Appellants, Rocco Law colluded with the attorney representing
    S.C. at the hearing to remove Coley’s name from the petition to vacate. Id.
    Appellants appeared to assert that the attorneys colluded so that if
    Satterthwaite’s petition to vacate was successful at the trial court, it would be
    overturned on appeal, thereby favoring S.C. Id.
    Our review of the record does not show that Appellants’ complaint
    sufficiently pleaded a cause of action for legal malpractice. Appellants did not
    have nonetheless failed to state a claim for legal malpractice as to
    Satterthwaite. Appellants fail to satisfy the employment-of-the-attorney
    element of a legal malpractice claim sounding in tort because they averred
    that Satterthwaite was not Rocco Law’s client. See Complaint, 11/29/2016,
    at 6, 8, Exh. M; Wachovia Bank, N.A., supra. Similarly, Appellants have
    not asserted the existence of a contractual relationship between Satterthwaite
    and Rocco Law as required for a breach of contract claim. See id.
    -9-
    J-A22024-19
    plead facts to demonstrate they would have prevailed in the underlying action
    in the absence of Rocco Law’s alleged negligence, i.e., the filing of a petition
    to vacate on behalf of Satterthwaite, or that Appellants sustained damage due
    to Rocco Law’s actions. As discussed supra, and acknowledged by Appellants
    in their complaint, see id. at 3, Rocco Law successfully achieved Appellants’
    objective of vacating the orders at issue, but the trial court’s June 14, 2012
    order was reversed on appeal. Thus, Appellants did not sustain damages in
    the trial court stemming from Rocco Law’s alleged negligence because the
    petition to vacate was granted. While the trial court’s June 14, 2012 order
    was reversed on appeal, the basis for the reversal had nothing to do with who
    the petitioner was below. Rather, this Court reversed because the trial court
    lacked jurisdiction to vacate the orders at issue where more than 30 days had
    passed since they were entered and no extraordinary cause existed to justify
    the trial court’s intervention. Satterthwaite, supra. Thus, the outcome of
    the underlying action would have been the same regardless of whether Coley
    or Satterthwaite was named as petitioner.       Accordingly, Appellants’ legal
    malpractice claim fails because Appellants did not plead facts sufficient to
    demonstrate actual injury, i.e., that they would have prevailed in the
    underlying action in the absence of Rocco Law’s alleged negligence.
    Furthermore, in support of their assertion that Rocco Law filed the
    petition to vacate on behalf of Satterthwaite without Appellants’ knowledge or
    consent, Appellants attached to their complaint, inter alia, (1) the April 27,
    - 10 -
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    2012 petition to vacate filed on behalf of Satterthwaite, which included a
    verification signed by Satterthwaite on April 25, 2012; (2) the January 12,
    2012 petition to vacate filed on behalf of Coley, which included a verification
    signed by Coley on January 11, 2012; (3) the transcript of the May 15, 2012
    hearing on the petitions to vacate before the trial court, which shows both
    Appellants attended; and (4) a statement dated October 31, 2016, signed by
    Satterthwaite in which she acknowledges she signed the verification to the
    petition to vacate and attended the May 15, 2012         hearing.   Complaint,
    11/29/2016, at Exhs. G, I, M, O.      The transcript attached to Appellants’
    complaint shows that, in the presence of Appellants, Attorney Rocco identified
    himself as counsel for Appellants, explained that petitions had been filed on
    behalf of both Coley and Satterthwaite due to Satterthwaite’s health, and
    when asked by the trial court, indicated that the matter would proceed with
    Satterthwaite as petitioner. Id. at Exh. I (N.T., 5/15/2012, at 4, 18-19). In
    fact, Satterthwaite interrupted during this exchange between Attorney Rocco
    and the trial court to correct Attorney Rocco as to her health condition, but
    notably, Satterthwaite said nothing about whether she or Coley would be
    proceeding as petitioner. Id. Thus, the record belies Appellants’ assertion
    that the petition to vacate on behalf of Satterthwaite was filed without
    Appellants’ knowledge or consent. No relief is due.9
    9 On appeal, Appellants make no argument as to any cause of action except
    legal malpractice and a passing reference to fraud. As noted supra, Appellants
    - 11 -
    J-A22024-19
    Finally, to the extent Appellants argue their pro se status below excuses
    their “potential drafting errors and lack of detail in the legal analysis appearing
    on the pleadings,” see Appellants’ Brief at 17, we note that pro se status
    confers no special benefit upon Appellants. Norman for Estate of Shearlds
    v. Temple Univ. Health Sys., 
    208 A.3d 1115
    , 1118-19 (Pa. Super. 2019)
    (“Although this Court is willing to liberally construe materials filed by a pro se
    litigant, pro se status confers no special benefit upon the appellant. To the
    contrary, any person choosing to represent himself in a legal proceeding must,
    to a reasonable extent, assume that his lack of expertise and legal training
    will be his undoing.”) (quoting Wilkins, 
    903 A.2d at 1284
    ); Hoover v.
    fail to cite or discuss any relevant authorities or how the factual allegations
    and exhibits attached to their complaint support a fraud claim. Thus, to the
    extent Appellants’ complaint purports to allege theories of liability other than
    legal malpractice, Appellants have waived on appeal any challenge thereto.
    Milby v. Pote, 
    189 A.3d 1065
    , 1079 (Pa. Super. 2018) (“The failure to
    develop an adequate argument in an appellate brief may result in waiver of
    the claim under Pa.R.A.P. 2119. We shall not develop an argument for an
    appellant, nor shall we scour the record to find evidence to support an
    argument; instead, we will deem issue to be waived.”) (citations, brackets,
    and quotation marks omitted). Further, to the extent Appellants’ complaint
    attempts to assert a cause of action for violation of the Pennsylvania Rules of
    Professional Conduct, see Complaint, 11/29/2016, at 12-15, we note that
    violation of these rules does not give rise to a civil cause of action. See
    Pa.R.P.C. Preamble and Scope [19] (“Violation of a Rule [of Professional
    Conduct] should not itself give rise to a cause of action against a lawyer nor
    should it create any presumption in such a case that a legal duty has been
    breached.…[The Rules] are not designed to be a basis for civil liability.”); see
    also In re Adoption of M.M.H., 
    981 A.2d 261
    , 272 (Pa. Super. 2009) (“The
    Rules of Professional Conduct do not carry the force of substantive law, nor
    do they broaden an attorney’s duties in civil legal proceedings; instead, they
    are a basis upon which to sanction a lawyer through the disciplinary
    process.”).
    - 12 -
    J-A22024-19
    Davila, 
    862 A.2d 591
    , 595-96 (Pa. Super. 2004) (“A pro se litigant is not
    absolved from complying with procedural rules.”); First Union Mortgage
    Corp. v. Frempong, 
    744 A.2d 327
    , 333 (Pa. Super. 1999) (“A pro se litigant
    is granted the same rights, privileges and considerations as those accorded a
    party represented by counsel; however, pro se status does not entitle a party
    to any particular advantage because of his or her lack of legal training.”).
    Accordingly, we affirm the judgment entered on June 12, 2018, against
    Appellants and in favor of Rocco Law.10,   11
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/3/19
    10 We decline to address Appellants’ bald and conclusory claim that Rocco Law
    intentionally omitted five pages in the attachments to its motion for judgment
    on the pleadings. See Appellants’ Brief at 22. Appellants do not explain in
    any fashion whatsoever why they believe the pages were intentionally omitted
    or that it was anything more than a clerical error, nor do Appellants explain
    how they have been prejudiced by this omission. According to Appellants, the
    pages purportedly omitted by Rocco Law are pages which were attached to
    their complaint filed with the trial court; thus, the pages were already a part
    of the record in this case.
    11 The remaining statements of error contained in Appellants’ Rule 1925(b)
    statement are waived for failure to address and develop them in their brief.
    Compare Pa.R.A.P. 1925(b), 8/14/2018, at 1 (unnumbered) with Appellants’
    Brief; Milby, 189 A.3d at 1079.
    - 13 -
    

Document Info

Docket Number: 2083 EDA 2018

Filed Date: 12/3/2019

Precedential Status: Non-Precedential

Modified Date: 12/13/2024