Lynch, J. v. Cooper, B.

J-S22032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. LYNCH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BENJAMIN COOPER, ESQ. ALLAN J. : No. 2200 EDA 2021
SAGOT, ESQ. ALLAN J. SAGOT :
ASSOCIATES :
Appeal from the Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 190100419
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JANUARY 18, 2023
John J. Lynch (“Lynch”) appeals pro se from the order dismissing his
amended complaint naming Benjamin Cooper, Esq. (“Attorney Cooper”), Allan
J. Sagot, Esq. (“Attorney Sagot”), and Allan J. Sagot Associates (“Sagot
Associates”) (collectively, “Appellees”) as defendants. We quash the appeal.
We summarize the procedural history of this appeal from the record. In
January 2019, Lynch filed a pro se complaint alleging breach of contract and
legal malpractice against Appellees.1 Lynch served Attorney Cooper with the
complaint, but was unable to serve Attorney Sagot or Sagot Associates. With
the trial court’s permission, Lynch reinstated his action and filed an amended
complaint in May 2019. Therein, Lynch asserted that Attorney Cooper was an
associate with Sagot Associates and had been appointed to represent him in
____________________________________________
1 Lynch filed his complaint while incarcerated at SCI-Dallas.
J-S22032-22
criminal matters in May 2017. See Amended Complaint, 5/15/19, at ¶¶ 1-2.
Lynch claimed that Attorney Cooper ineffectively represented him in his
criminal matters which resulted in a deprivation of his liberty interests. See
id. at ¶¶ 5, 8. Additionally, Lynch alleged that he and Attorney Cooper entered
into an oral agreement for Attorney Cooper or another member of Sagot
Associates to file motions and briefs in two civil matters. Lynch averred that
he paid Attorney Cooper,2 Appellees failed to file motions and briefs in the civil
matters, and their inactions resulted in the dismissal of a civil appeal as well
as the entry of a $60,000 judgment against him. See id. at ¶¶ 2-4, 7.
Counsel for Attorney Cooper3 entered an appearance, and on January
2, 2020, filed a notice of intent to enter a judgment of non pros due to Lynch’s
failure to file a certificate of merit.4 See Pa.R.Civ.P. 1042.3(a) (requiring the
____________________________________________
2 Lynch attached to his amended complaint copies of checks from the
Philadelphia prison system paid to the order of Attorney Cooper, as well as a
spreadsheet indicating deductions from Lynch’s prison account. See
Attachments to Amended Complaint, 5/15/19.
3 Counsel represented Attorney Cooper individually and did appear on behalf
of Attorney Sagot or Sagot Associates.
4 A certificate of merit consists of a form, signed by the plaintiff or his attorney,
indicating a licensed professional has supplied a written statement that: (1)
there is a basis to conclude that the care, skill, or knowledge exercised or
exhibited by a defendant in the practice or work that is the subject of the
complaint fell outside acceptable professional standards and that such conduct
was a cause in bringing about the harm; (2) a defendant deviated from an
acceptable professional standard based solely on allegations that other
licensed professionals for whom this defendant is responsible deviated from
an acceptable professional standard; or (3) expert testimony is unnecessary
for the prosecution of the claim against a defendant. See Pa.R.Civ.P. 1042.10.
-2-
J-S22032-22
filing of a certificate of merit within sixty days of filing a complaint in any
action alleging a licensed professional deviated from an acceptable
professional standard), see also Pa.R.Civ.P. 1042.6(a) (governing notices of
intent to enter judgment of non pros for failure to file a certificate of merit).
Four days later, Lynch informed the trial court that his mailing address had
changed from SCI-Dallas to SCI-Phoenix.
On February 5, 2020, Attorney Cooper filed a praecipe for the entry of
a judgment of non pros as to Lynch’s claims against him. Lynch then filed a
certificate of merit asserting that expert testimony of an appropriate licensed
professional was unnecessary as to “these proceedings and claims against
Sagot Associates.” See Lynch’s Certificate of Merit, 2/28/20.5 In May 2020,
Lynch filed a petition to open the judgment of non pros. Upon consideration
of the briefs filed by Lynch and Attorney Cooper, the trial court denied Lynch’s
petition to open on July 31, 2020.6
Attorney Sagot and Sagot Associates were not served with original
process, nor had they taken any actions with respect to Lynch’s original or
____________________________________________
5 Lynch asserts that he mailed his certificate of merit on February 4, 2020;
however, absent adequate evidence of the date he deposited this filing with
prison officials, we refer to the February 28, 2020 date of docketing as the
date of this filing. See Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super.
2001) (discussing the prisoner mailbox rule and applying the rule to a civil
matter). We do the same for all of Lynch’s filings where the record does not
contain verifiable evidence of the date of mailing.
6The Honorable Ann Butchart decided Lynch’s petition to open the judgment
of non pros as to Attorney Cooper.
-3-
J-S22032-22
amended complaint.7 Nevertheless, the docket next indicates that in
December 2020, the trial court listed the matter for a settlement conference.
Additionally, Lynch filed a motion to extend the deadlines based upon a
COVID-19 lockdown in the prison, which the trial court denied.8
In August 2021, the trial court attempted to hold a pretrial conference,
but no parties appeared. The trial court issued a rule to show cause scheduling
a hearing for September 29, 2021, to determine why the case should not be
dismissed and whether the defense should be sanctioned for failing to appear
at the pretrial conference. Only Attorney Cooper responded to the rule to
show cause, and he indicated that the court had entered a judgment of non
pros as to the claims against him, and he was no longer involved in the case.
On September 29, 2021, the trial court dismissed Lynch’s entire action.9
Lynch timely appealed from the September 29, 2021 order dismissing the
____________________________________________
7 Lynch’s attempts to serve Attorney Sagot or Sagot Associates with his
original and amended complaint had been unsuccessful. See Affidavit/Return
of Service, 5/17/19 (indicating that the suite listed for Attorney Sagot and
Sagot Associates did not exist); Affidavit/Return of Service, 4/8/19 (indicating
that Attorney Sagot and Sagot Associates were “not found because
EXPIRED”).
8 Judge Linda Carpenter presided over the matter beginning in 2021.
9 It is unclear which of the trial court’s 2021 orders Lynch received, as the
record contains several documents indicating that the court received returned
mail. See Return Mail Received, Document Nos. 34, 36, 42.
-4-
J-S22032-22
entire case.10 The court did not order a Pa.R.A.P. 1925(b) statement, but the
presiding judges filed separate opinions explaining their decisions to dismiss
Lynch’s claims and action due to his failure to file certificates of merit.11 See
Judge Carpenter’s Opinion, 6/30/22, at 4-5 (unnumbered); Judge Butchart’s
Opinion, 12/2/21, at 4 (unnumbered).12
Lynch raises the following issues for review:
1. Did . . . [Attorney Cooper] . . . with[h]old factual information
from the [trial court] in [his] subsequent return of service
affidavit that [his] first mailing had failed to give notice and 30
days opportunity to correct the legal defect as required by
[Pa.R.Civ.P.] 1042.6?
2. Did the failure of the [January 2, 2020] mailing by [Attorney
Cooper affect] the response period under [Pa.R.Civ.P.] 1042.6?
3. Can . . . [Lynch] be refused relief of vacating /striking/and/or
opening the [j]udg[]ment of dismissal . . . simply because the
legal mail from the court that was mailed to the correct address
S.C.I. Phoenix was returned as undeliverable where [Lynch]
has been and continues to be housed . . .
Lynch’s Brief at 10.
____________________________________________
10On September 13, 2021, Lynch had filed a separate notice of appeal from
the July 31, 2020 order denying his petition to open the judgment of non pros
as to Attorney Cooper, which was docketed in this Court at 2417 EDA 2021.
This Court dismissed that appeal as duplicative of the present appeal. See
Order, 2417 EDA 2021, 3/1/22.
11 On December 27, 2021, while this appeal was pending, Lynch filed in the
trial court a petition to open, strike, or vacate the September 29, 2021 order.
12 Judge Butchart also concluded that Lynch failed to timely appeal the July
31, 2020 order denying his petition to open the judgment of non pros as to
Attorney Cooper. See Judge Butchart’s Opinion, 12/2/21, at 2-3. Judge
Butchart noted that there were no indications in the record that Lynch had not
received the July 31, 2020 order. See id. at 3.
-5-
J-S22032-22
Initially, we must consider whether this Court has jurisdiction to
consider this appeal. See Bloome v. Alan, 154 A.3d 1271, 1273 (Pa. Super.
2017) (noting that the appealability of an order directly implicates this Court’s
jurisdiction); see also Affordable Outdoor, LLC v. Tri-Outdoor, Inc., 210
A.3d 270, 274 (Pa. Super. 2019) (stating that the timeliness of an appeal is
jurisdictional). Our standard of review of questions concerning this Court’s
jurisdiction is de novo, and our scope of review is plenary. See In re Estate
of Krasinski, 218 A.3d 1246, 1251 (Pa. 2019).
To perfect an appeal, an appellant must timely file a notice of appeal
from an appealable order. See Pa.R.A.P. 902-903 (requiring that appeals
permitted by law be taken within thirty days); see also Pa.R.A.P. 902 Note
(stating that a timely notice of appeal is “self-perfecting”). An appeal may be
taken from: (1) an interlocutory order as of right, see Pa.R.A.P. 311; (2) an
interlocutory order by permission, see Pa.R.A.P. 312, 1311; (3) a collateral
order, see Pa.R.A.P. 313; or (4) a final order or an order certified as a final
order, see Pa.R.A.P. 341. See Bloome, 154 A.3d at 1273.
An interlocutory order refusing to strike off or open a judgment is
immediately appealable as of right, see Pa.R.A.P. 311(a)(1), but an appellant
taking an interlocutory appeal as of right must file a notice of appeal within
thirty days of the entry of the order. See Pa.R.A.P. 902-903. The failure to
take an immediate appeal of an interlocutory order denying a petition to open
a judgment of non pros, however, does not waive the appellant’s right to
challenge the interlocutory order upon a timely appeal from a final order. See
-6-
J-S22032-22
Pa.R.A.P. 311(g) (providing that the failure to appeal an interlocutory order
pursuant to Rule 311(a)(1) does not waive any objections to the interlocutory
order); see also Stephens v. Messick, 799 A.2d 793, 798 (Pa. Super. 2002)
(noting that “[a]s a general rule, interlocutory orders that are not subject to
immediate appeal as of right may be reviewed on a subsequent timely appeal
of the final appealable order or judgment in the case”) (internal citation and
quotations omitted).
A final order is one that disposes of all claims and parties. See Pa.R.A.P.
341(b)(1). This Court’s decision in Bloome is instructive in this case. In
Bloome, the plaintiff failed to serve two of the defendants named in her
amended complaint. See Bloome, 154 A.3d at 1272-74. Three other
defendants filed preliminary objections. See id. at 1273. The trial court
sustained the moving defendant’s preliminary objections, but dismissed the
plaintiff’s amended complaint in its entirety. See id. On appeal, this Court
held that the order dismissing the amended complaint was not a final order
under Rule 341(b)(1) because: the plaintiff did not serve two defendants
named in her amended complaint; the unserved defendants did not file
preliminary objections; and the plaintiff’s action against the unserved
defendant had not been dismissed or discontinued. See id. at 1274. Further,
finding no other basis on which to exercise our appellate jurisdiction, the
Bloome Court quashed the plaintiff’s appeal. See id. at 1274 & n.7.
In the appeal sub judice, Lynch named Attorney Cooper, Attorney Sagot,
and Sagot Associates as defendants in his action. Lynch served Attorney
-7-
J-S22032-22
Cooper with original process, and as noted above, the trial court denied
Lynch’s petition to open the judgment of non pros as to Attorney Cooper on
July 31, 2020. The order as to Attorney Cooper was interlocutory, as it did
not dispose of all parties, but was immediately appealable pursuant to
Pa.R.A.P. 311(a)(1). While Lynch did not timely appeal the July 31, 2020
order within thirty days, his failure to do so is not fatal to this Court’s
jurisdiction so long as Lynch timely appealed from a final order disposing of
all claims and parties. See Pa.R.A.P. 311(g); see also Stephens, 799 A.2d
at 798.
We note that Lynch timely appealed from the trial court’s September
29, 2021 order, and that order purported to dismiss all claims and all parties.
However, our review of the record reveals that like the plaintiff in Bloome,
Lynch had failed to serve Attorney Sagot or Sagot Associates and neither
Attorney Sagot nor Sagot Associates participated in any of the litigation.
Furthermore, no actions were taken to dismiss or discontinue Lynch’s claims
against them. Therefore, the September 29, 2021 order was not a final order.
See Bloome, 154 A.3d at 1274. Because Lynch has provided no other basis
for this Court to exercise our appellate jurisdiction, Lynch’s timely appeal from
the September 29, 2021 order does not trigger this Court’s jurisdiction. See
id.-8-
J-S22032-22
Thus, because Lynch has not perfected an appeal from the trial court’s
July 31, 2020 order, or the September 29, 2021 order, we must quash this
appeal.13
Appeal quashed.
Judge McCaffery joins this memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/18/2023
____________________________________________
13 Because we lack jurisdiction, we express no opinion on Lynch’s assertions
that court breakdowns or extraordinary circumstances prevented him from
timely filing a petition to open a judgment entered on September 29, 2021,
or timely appealing the July 31, 2020 order. Additionally, we do not consider
the merits of the trial court’s denial of Lynch’s petition to open the judgment
of non pros as to Attorney Cooper or any other aspects of Lynch’s claims
against Appellees.
-9-