Vurimndi, V. v. O'Connor, L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
VAMSIDHAR R. VURIMINDI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LAWRENCE O'CONNOR : No. 2915 EDA 2022
Appeal from the Order Entered October 31, 2022
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 220901579
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM PER CURIUM: FILED AUGUST 29, 2023
Vamshidhar Vurimindi adds this pro se appeal to the many he has had
before this Court. In this appeal, Vurimindi appeals the trial court’s order
dismissing as frivolous his legal malpractice action against the attorney who
was appointed to represent him pursuant to a Post Conviction Relief Act
(“PCRA”) petition, 42 Pa. C.S.A. §§ 9541-9546. We affirm.
The procedural history leading up to this appeal is extensive but only a
brief summary is necessary for purposes of this appeal. Vurimindi was
convicted of two counts of stalking and one count of disorderly conduct in
2014. He was sentenced to an aggregate term of two and one-half to five
years’ incarceration, followed by five years of probation.
Vurimindi ultimately filed a pro se PCRA petition in 2019. Lawrence
O’Connor, Esq. was appointed to represent Vurimindi, and Attorney O’Connor
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subsequently filed two amended PCRA petitions on Vurimindi’s behalf. Despite
Attorney O’Connor’s appointment, Vurimindi nonetheless continued to file pro
se amended PCRA petitions as well as appeals to this Court. “Since Vurimindi’s
conviction and despite being represented by counsel, he has filed more than
190 Pro Se appeals, correspondences, motions and emails in the criminal
matter.” Trial Court Opinion, 3/10/2023, at 2. Those pro se filings included
motions to proceed pro se and to remove Attorney O’Connor as counsel, both
of which the PCRA court denied, and Vurimindi appealed those denials pro se
in separate matters.
In September 2022, Vurimindi also filed a pro se 89-page complaint
alleging malpractice against Attorney O’Connor and Jane Doe and John Doe,
the pro se filing which is the subject of this appeal. In the complaint, Vurimindi
alleged Attorney O’Connor had committed malpractice by, among other
things, failing to raise multiple additional claims of trial counsel ineffectiveness
and failing to include exculpatory evidence in the amended PCRA petitions.
Vurimindi filed a petition for leave to proceed in forma pauperis along with the
complaint. As the trial court noted in its opinion, at the time of these filings,
“[Attorney] O’Connor actively represent[ed] Vurimindi in the PCRA case. [And]
Vurimindi’s PCRA petitions ha[d] not yet been decided by the PCRA court.” Id.
The trial court dismissed the motion to proceed in forma pauperis and
Vurimindi’s complaint as frivolous on October 21, 2022. Vurimindi filed a
timely notice of appeal, and the trial court filed an opinion in support of its
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October 21, 2022 order. In its opinion, the trial court first noted that
Pennsylvania Rule of Civil Procedure 240(j)(1) allows a court to dismiss an
action:
If, simultaneous with the commencement of an action … a party
has filed a petition for leave to proceed in forma pauperis, the
court prior to acting upon the petition may dismiss the action … if
it is satisfied that the action … is frivolous.
Pa.R.Civ.P. 240(j)(1). “A frivolous action or proceeding has been defined as
one that lacks an arguable basis either in law or in fact.” Pa.R.Civ.P. 240(j)(1),
Note (citation omitted).
The trial court then outlined the elements a plaintiff must establish in a
malpractice case against a criminal defense attorney. Specifically, the court
noted that a plaintiff is required to show: 1) the employment of the attorney;
2) the attorney’s reckless or wanton disregard of the plaintiff’s interests; 3)
the attorney’s culpable conduct was the proximate cause of the injury suffered
by the plaintiff; 4) the plaintiff suffered damages as a result of the injury; and
5) the plaintiff pursued post-trial remedies and obtained relief which was
dependent upon the claimed attorney error. See Trial Court Opinion,
3/10/2023, at 3, citing Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993).
In concluding that Vurimindi had failed to meet this standard, the trial
court explained:
Here, [this] court properly dismissed Vurimindi’s action as
frivolous because, on its face, [Vurimindi’s] action lacked an
arguable basis in law or fact. Vurimindi’s complaint alleges that his
current attorney committed malpractice by fraud and
misrepresentation of Vurimindi’s interests in his PCRA case.
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Vurimindi is unable to substantiate this claim because (1)
Vurimindi’s PCRA petitions remain open and may yet be successful,
and (2) [Attorney] O’Connor still actively represents Vurimindi in
his PCRA case.
Accordingly, at this time, Vurimindi cannot show that his
criminal defense attorney disregarded his interests, committed an
error that but for this error, resulted in Vurimindi suffering harm,
and that the harm suffered was later remedied by post-trial relief.
Trial Court Opinion, 3/10/2023, at 3.
We discern no error in the trial court’s conclusion that Vurimindi’s
malpractice action against Attorney O’Connor has no basis in law at this point,
and therefore in the court’s decision to dismiss his action as frivolous.
The court’s conclusion is buttressed by the fact that Bailey
contemplates that a malpractice action against a criminal attorney will be filed
after the attorney-client relationship is terminated. To that end, Bailey holds
that the “appropriate starting point [for the statute of limitations period in a
malpractice action] is the termination of the attorney-client relationship.”
Bailey, 621 A.2d at 116. As the trial court noted above, this termination has
not yet occurred here as Attorney O’Connor still represents Vurimindi in his
unresolved PCRA matter.
Vurimindi maintains, however, that Bailey is not applicable to his case.
According to Vurimindi, Bailey only applies to malpractice actions in a criminal
context and the PCRA is civil in nature. As such, he argues, it is the standard
for legal malpractice claims in civil actions that applies to his case. Vurimindi
asserts this standard only requires him to show: 1) the employment of
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Attorney O’Connor; 2) the failure of Attorney O’Connor to exercise ordinary
skill and knowledge; and 3) such negligence was the proximate cause of his
injury. See Appellant’s Brief at 10; citing Rizzo v. Haines, 555 A.2d 58, 65
(Pa. 1989).
Even if we were to credit Vurimindi’s argument, our conclusion that the
trial court properly dismissed this malpractice action against Attorney
O’Connor would not be altered. Under either standard, Vurimindi is required
to show he has suffered harm - an injury - from PCRA counsel’s alleged
culpable conduct. The harm in question here is the denial of PCRA relief, given
that Vurimindi’s malpractice claim alleges PCRA counsel committed
malpractice by providing ineffective assistance in representing him in his PCRA
matter. As noted above, Vurimindi had not yet been denied PCRA relief at the
time he filed his malpractice complaint. Vurimindi has therefore failed to
convince us that he is entitled to any relief.
Vurimindi also argues the trial court erred by dismissing his malpractice
action because such an action is the only available vehicle for challenging
PCRA counsel’s representation. He argues that, in effect, there is no other
avenue in which one can litigate claims of ineffectiveness as it relates to PCRA
counsel. Of course, such an argument entirely ignores our Supreme Court’s
recent decision in Commonwealth v. Bradley, which specifically held that
“a PCRA petitioner may, after a PCRA court denies relief, and after obtaining
new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness
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at the first opportunity to do so, even if on appeal.” 261 A.3d 381, 401 (Pa.
2021). As such, this argument also does not provide Vurimindi with any basis
for relief.
Vurimindi has also filed an application for leave to file a post-submission
communication, seeking to file a supplemental brief with a supplemental
argument he did not include in his initial brief. We deny the application, as
such a submission is not contemplated by our Rules of Appellate Procedure.
Order affirmed. Application for leave to file a post-submission
communication denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2023
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