Robinson, M. v. Coyle, C., and Henry & Beaver

J. A34009/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MICHELLE ROBINSON, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CHRISTOPHER COYLE AND : No. 700 MDA 2014
HENRY & BEAVER, LLP :
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.: FILED APRIL 28, 2015
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Commonwealth v. Robinson, 64 A.3d 14 (Pa.Super. 2012) (unpublished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
one way to protect the integrity of
the system is to permit the
attorney to introduce whatever
evidence that impacts on the
defendant/plaintiff’s entitlement to
compensation. Such evidence can
include any and all confidential
communications, as well as
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otherwise suppressible evidence of
factual guilt.
(4) As a result of the injury, the criminal
defendant/plaintiff suffered damages.
(5) Moreover, a plaintiff will not prevail in an
action in criminal malpractice unless and
until he has pursued post-trial remedies
and obtained relief which was dependent
upon attorney error; [Footnote 13]
additionally, although such finding may
be introduced into evidence in the
subsequent action it shall not be
dispositive of the establishment of
culpable conduct in the malpractice
action.[Footnote 14]
[Footnote 13] This requirement
does not, however, relieve the
plaintiff of his duty to initiate this
cause of action within the statute
of limitations period as hereinafter
discussed, but it does raise a
procedural question, to wit: what is
to be done with a civil action filed
prior to the completion of the post-
conviction process? The answer is
that an attorney defendant who is
served with a complaint alleging
professional malpractice for the
handling of a criminal matter may
interpose a preliminary objection
on the grounds of demurrer. See
Pa.R.C.P. No. 1017(b)(4). The trial
court shall then reserve its ruling
on said objection until the
resolution of the post-conviction
criminal proceedings.
[Footnote 14] In this regard we
wish to emphasize that a finding of
ineffectiveness is not tantamount
to a finding of culpable conduct.
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Bailey, 621 A.2d at 114-115.
The new, more rigorous pleading requirements of
Bailey are designed to serve numerous purposes.
By reducing the threat of subsequent malpractice
liability, criminal defense attorneys will be better
able to represent their clients fearlessly and
independently; they will be less likely to compromise
their professional judgment and cater to their clients’
potentially unwise demands. Qualified and capable
attorneys will not be discouraged from engaging in
criminal defense work. Also, public policy should not
allow an actually guilty defendant to profit from his
crime by attacking peripherally negligent aspects of
his defense attorney’s performance. The heightened
pleading standards also discourage frivolous
litigation, while leaving intact the criminal
defendant’s access to other systemic remedies, such
as appeals and post-conviction proceedings.
Hill v. Thorne, 635 A.2d 186, 190-191 (Pa.Super. 1993), citing Bailey, 621
A.2d at 112-113.
As stated above, this court affirmed appellant’s judgment of sentence
on December 10, 2012, finding the evidence sufficient to sustain the guilty
verdict. Specifically, we found that the evidence demonstrated that
appellant recklessly disregarded a risk of public inconvenience.
Commonwealth v. Robinson, No. 1992 MDA 2010, unpublished
memorandum at 9 (Pa.Super. filed December 10, 2012). The jury could
reasonably conclude that appellant set the hose in order to discourage
passing motorcyclists. Id. at 8. In addition, an off-duty police officer
brought appellant’s attention to the fact that the hose was spraying water
across the roadway and appellant did nothing to correct the situation until
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after being ordered to do so by uniformed police. Id. “Thus, appellant was
aware of the dangerous situation arising from her property and recklessly
refused to immediately correct it.” Id. at 8-9. Appellant filed a petition for
allowance of appeal with the Pennsylvania Supreme Court, which was denied
on July 24, 2013. Therefore, appellant’s conviction is now final. Appellant
cannot meet the third element required in Bailey; i.e., that she did not
commit any of the unlawful acts with which she was charged. Appellant
cannot prove that “but for” the allegedly negligent acts of her attorneys, she
would have obtained an acquittal. As a matter of public policy, a guilty
plaintiff cannot collect damages in a criminal malpractice trespass action.
See Bailey, 621 A.2d at 113 (“First, as for the possibility of a defendant
actually profiting from his crime, we require that as an element to a cause of
action in trespass against a defense attorney whose dereliction was the sole
proximate cause of the defendant’s unlawful conviction, the defendant must
prove that he is innocent of the crime or any lesser included offense.”).1
1
We may affirm for a reason other than that relied upon by the trial court.
Gerace v. Holmes Protection of Philadelphia, 516 A.2d 354 (Pa.Super.
1986), allocatur denied, 527 A.2d 541 (Pa. 1987). As stated above, the
trial court relied on the fifth element of Bailey, the successful pursuit of
post-trial relief dependent upon attorney error. We observe that Bailey was
decided prior to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which
held that, ordinarily, claims of trial counsel ineffectiveness must be deferred
until collateral review. When Bailey was handed down, the old “Hubbard
rule” was still in effect, that any claims of trial counsel ineffectiveness had to
be brought at the first available opportunity to avoid waiver, i.e., when the
defendant had new counsel. Commonwealth v. Hubbard, 372 A.2d 687(Pa. 1977); Commonwealth v. Dancer, 331 A.2d 435 (Pa. 1975).
Appellant is no longer eligible for PCRA relief, where she is no longer serving
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We now turn to the March 21, 2014 order granting appellees’ motion
for judgment on the pleadings. Appellant argues that she should have been
permitted to amend her complaint to add a count for fraudulent
misrepresentation.
Our scope of review on an appeal from the grant of
judgment on the pleadings is plenary. Meehan v.
Archdiocese of Philadelphia, 870 A.2d 912, 918
(2005). Entry of judgment on the pleadings is
permitted under Pennsylvania Rule of Civil Procedure
1034, which provides that “after the pleadings are
closed, but within such time as not to unreasonably
delay trial, any party may move for judgment on the
pleadings.” Pa.R.C.P. 1034(a). A motion for
judgment on the pleadings is similar to a demurrer.
Citicorp North America, Inc. v. Thornton, 707
A.2d 536, 538 (Pa.Super.1998). 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. Id. In determining if there is a dispute as to
facts, the court must confine its consideration to the
a sentence. See Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa.
1997) (“To be eligible for relief a petitioner must be currently serving a
sentence of imprisonment, probation or parole.”) (emphasis in original);
42 Pa.C.S.A. § 9543(a)(1)(i). In addition, the so-called “short sentence”
exception to the Grant rule has been disapproved. See Commonwealth v.
O’Berg, 880 A.2d 597 (Pa. 2005) (short sentence did not warrant exception
to general rule announced in Grant precluding consideration of
ineffectiveness of counsel claims on direct appeal). As a practical matter,
the only way for a plaintiff in appellant’s position to satisfy the fifth element
of Bailey in the post-Grant landscape would be to waive his PCRA rights.
See Commonwealth v. Holmes, 79 A.3d 562, 578 (Pa. 2013) (recognizing
a “good cause/PCRA waiver” exception to the Grant rule, which applies
where the defendant demonstrates good cause for unitary review of multiple
or prolix ineffectiveness claims on direct appeal, including non-record based
claims, and expressly and knowingly waives his right to seek subsequent
PCRA review). An example of “good cause” would be where the defendant is
serving a sentence so short as to be unlikely to have the opportunity to seek
collateral review of his conviction. Id.- 11 -
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pleadings and relevant documents. Id. On appeal,
we accept as true all well-pleaded allegations in the
complaint. Meehan, supra.On appeal, our task is to determine whether
the trial court’s ruling was based on a clear error of
law or whether there were facts disclosed by the
pleadings which should properly be tried before a
jury or by a judge sitting without a jury. Citicorp,
supra.
Neither party can be deemed to have
admitted either conclusions of law or
unjustified inferences. Moreover, in
conducting its inquiry, the court should
confine itself to the pleadings themselves
and any documents or exhibits properly
attached to them. It may not consider
inadmissible evidence in determining a
motion for judgment on the pleadings.
Only when the moving party’s case is
clear and free from doubt such that a
trial would prove fruitless will an
appellate court affirm a motion for
judgment on the pleadings.
Kelly v. Nationwide Insurance Company, 414
Pa.Super. 6, 606 A.2d 470, 471-72 (1992)
(quotations and citations omitted).
Consolidation Coal Co. v. White, 875 A.2d 318, 325-326 (Pa.Super.
2005).
In Count 2 of her amended complaint, appellant brought a claim for
forgery. The crime of forgery is codified in the Crimes Code at 18 Pa.C.S.A.
§ 4101. As the trial court states, there is no private civil cause of action for
forgery. (Trial court opinion, 3/21/14 at 5.) In her brief in support of her
response to appellees’ motion for judgment on the pleadings, appellant
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sought permission to file a second amended complaint, substituting
“fraudulent misrepresentation” for “forgery” as the heading of Count 2. (Id.
at 9.) However, appellant never actually filed a motion for leave to amend.
(Id.) In its opinion of August 9, 2013, the trial court noted that, “Although
this Court is unaware of a civil cause of action for “forgery,” pleaded as
Count 2 in Plaintiff’s Amended Complaint, Defendants have limited their
demurrer to Plaintiff’s claim of negligence as articulated in Count 1.” (Trial
court opinion, 8/9/13 at 4 n.6.) Nonetheless, despite having been put on
notice that forgery is not a cognizable cause of action, appellant did not seek
to amend her complaint to include a cause of action for fraudulent
misrepresentation until November 19, 2013, after appellees had filed their
motion for judgment on the pleadings. (Trial court opinion, 3/21/14 at
9 n.12.)
Furthermore, we agree with the trial court that regardless of the
heading of Count 2, appellant did not successfully plead a case for fraudulent
misrepresentation. In her amended complaint, appellant alleged that on or
about March 24, 2010, appellees forged her signature on a Rule 600 waiver
and continuance request. According to appellant, they knew that they did
not have her permission or consent to agree to a continuance in the matter
or to delay trial. Appellant alleges that appellees submitted the forged
continuance request to the court and obtained a continuance that they knew
appellant did not need and did not agree to. (Plaintiff’s amended complaint,
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1/29/13 at 19, ¶¶ 109-111.) Appellant alleged that appellees violated her
right to a speedy trial under the 6th Amendment of the United States
Constitution and Rule 600. (Id. at 19-20, ¶ 113.)
The elements of fraudulent
misrepresentation are as follows:
(1) A representation;
(2) which is material to the
transaction at hand;
(3) made falsely, with
knowledge of its falsity or
recklessness as to whether it
is true or false; (4) with the
intent of misleading another
into relying on it;
(5) justifiable reliance on the
misrepresentation; and,
(6) the resulting injury was
proximately caused by the
reliance.
Heritage Surveyors & Eng’rs, Inc. v.
Nat’l Penn Bank, 801 A.2d 1248, 1250-
51 (Pa.Super.2002). Scienter, or the
maker’s knowledge of the untrue
character of his representation, is a key
element in finding fraudulent
misrepresentation. See Restatement
(Second) of Torts § 526, Comment a.
Ira G. Steffy & Son, Inc. v. Citizens Bank of
Pennsylvania, 7 A.3d 278, 290 (Pa.Super.2010),
appeal denied, 611 Pa. 675, 27 A.3d 1015 (2011).
Fraud must be proven by clear and convincing
evidence. [Hart v. Arnold, 884 A.2d 316(Pa.Super.2005), appeal denied, 897 A.2d 458 (Pa.
2006)]; Goldstein v. Phillip Morris, Inc., 854 A.2d
585, 590 (Pa.Super.2004).
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Weston v. Northampton Personal Care, Inc., 62 A.3d 947, 960
(Pa.Super. 2013), appeal denied, 79 A.3d 1099 (Pa. 2013).
Instantly, appellant cannot prove either justifiable reliance or
damages. As the trial court states, the recipient of the allegedly fraudulent
continuance request was not appellant, but the Lebanon County Court of
Common Pleas. (Trial court opinion, 3/21/14 at 8.) It was the court that
appellees were allegedly seeking to induce to act through the grant of a
continuance, and it was the court which ultimately relied upon the document
and granted the continuance. In fact, according to appellant, appellees hid
the continuance request from her and never notified her that the document
even existed. (Plaintiff’s amended complaint, 1/29/13 at 12 ¶¶ 58-59; 19
¶ 112.) As the trial court explains,
the recipient of the criminal continuance form
allegedly forged by Defendant Coyle was not the
Plaintiff, but the Court. It was the Court -- not the
Plaintiff -- who the maker sought to induce to act
through the grant of a continuance; it was the Court
who ultimately relied upon the document and
granted the continuance. Yet it is not the Court who
has initiated this suit or claimed damages as a result.
Trial court opinion, 3/21/14 at 8-9 (footnote omitted).
In Joyce v. Erie Ins. Exchange, 74 A.3d 157 (Pa.Super. 2013), the
appellant made similar allegations in support of a claim for fraudulent
misrepresentation: “Appellant averred that State Farm made
misrepresentations to the court and jury during Appellant’s criminal trial,
and also submitted a false victim impact statement. Appellant alleged that
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the government relied upon State Farm’s misrepresentations, and further
alleged that the government’s reliance on those statements harmed
Appellant.” Id. at 167 (citations to the complaint omitted). This court held
that the appellant had not sufficiently pled fraud where he had not alleged
that State Farm made any misrepresentation to him, or that he was
deceived:
The Complaint failed to state a
prima facie case of fraud against State
Farm and Erie Insurance because it failed
to plead that either defendant had made
a misrepresentation to [Appellant], and it
failed to plead that [Appellant]
reasonably relied upon that
misrepresentation. For a prima facie
case of fraud, the recipient of the
misrepresentation must be the one to
reasonably rely upon the
misrepresentation and to be damaged as
a proximate cause of that reliance. See
Elia v. Erie Ins. Exchange [398
Pa.Super. 433], 581 A.2d 209, 211-12
(Pa.Super. 1990) (citations omitted).
The Complaint does not allege that the
recipient of the misrepresentation was
the individual or entity damaged as a
proximate cause of reasonable reliance
upon the misrepresentation. Therefore,
the Complaint failed to state a cause of
action for fraud against Erie Insurance or
State Farm.
Trial Court Opinion, 4/25/2012, at 2–3 (italics in
original).
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As in Joyce, here, appellant claims that the court reasonably relied
upon the alleged misrepresentation, not her. In fact, appellant was
completely unaware that a defense continuance request had been filed.
Therefore, she cannot prove the necessary element of justifiable reliance.
Furthermore, appellant cannot prove damages as a proximate result of
the alleged misrepresentation, where her criminal conviction has been
upheld on appeal. Appellant alleges that the fraudulent continuance request
impaired her speedy trial rights; however, appellant would have to
demonstrate that, without the defense continuance request, the
Commonwealth would have exceeded the 365-day time limit for bringing
appellant to trial under Rule 600. Appellant alleges that the improper
continuance request delayed prosecution by 61 days, but does not even
attempt to show how, in the absence of excludable time attributable to the
defense continuance, a Rule 600 violation would have occurred.
We agree with the trial court that appellant cannot make out the
elements of a cause of action for fraudulent misrepresentation. Therefore,
the trial court did not err in granting appellees’ motion for judgment on the
pleadings and dismissing appellant’s amended complaint with prejudice.
We now turn to appellant’s motion for recusal, denied November 1,
2012. “Recusal is required whenever there is substantial doubt as to a
jurist’s ability to preside impartially.” Commonwealth v. Tainan, 734 A.2d
886, 889 (Pa.Super. 1999) (citation omitted). The burden is on the party
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moving for recusal; there is a presumption that a judge has acted properly,
bound by the oaths of his office and faithful to the requirements of an
unprejudiced, unbiased judiciary. Id. Furthermore, “[t]he mere
participation by the presiding judge in an earlier stage of the proceeding
neither suggests the existence of actual impropriety nor provides a basis for
a finding of the appearance of impropriety.” Commonwealth v. Boyle, 447
A.2d 250, 253 (Pa. 1982) (citations omitted).
Here, appellant filed her motion for recusal six days after filing her
complaint, before any judge had been assigned to her case. (Trial court
opinion, 11/1/12 at 5.) Apparently, her motion was directed to the entire
Lebanon County Court of Common Pleas, based on the underlying criminal
case. (Id.) However, the Honorable Robert J. Eby is a senior judge and was
assigned this matter in August 2012. (Id. at 7.) Judge Eby had no
involvement whatsoever in appellant’s criminal case. (Id. at 6.) In fact,
Judge Eby had retired from active status over eight months before the
criminal charges were filed. (Id.) There is nothing to support appellant’s
claims of bias or partiality. The trial court did not abuse its discretion in
denying appellant’s motion for recusal.
Finally, we address appellant’s argument that the trial court refused to
provide her with a transcript of the May 1, 2013 proceedings. Appellant
requested the use of a court stenographer due to a disability, which was
granted. Appellant indicated she wanted a stenographer present during oral
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argument in case she needed portions of any exchange read back to her.
(Trial court opinion, 5/13/14 at 9.) However, appellant did not request to
record the proceedings. (Id. at 9 n.3.) It is not the policy of Lebanon
County to record or transcribe oral argument, since no testimony is taken at
such proceedings. (Id.) Prior to the start of oral argument, the trial court
explained to appellant that the court stenographer was there for the sole
purpose of contemporaneously reading back statements appellant could not
hear, recall, or understand. (Id. at 9-10.) Appellant was explicitly told that
no transcript of the proceedings would be produced. (Id. at 10.) At no time
did appellant object or request that the proceedings be recorded for
permanent use. (Id.) Therefore, the matter is waived. Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). At any rate, appellant has failed to cite any legal
authority for the proposition that she was entitled to a transcript of the oral
argument on preliminary objections. More importantly, she cannot possibly
demonstrate prejudice where no testimony was taken or evidence presented
at the May 1, 2013 proceedings and we have already determined, for the
reasons discussed above, that the trial court did not err in sustaining
appellees’ preliminary objections in the nature of a demurrer to appellant’s
legal malpractice claim.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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