Jones v. Rudenstein

KELLY, Judge:

The instant case involves a pro se appeal from a judgment of non pros entered against a pro se litigant upon an attorney malpractice claim arising from appellant’s unsuccessful post-verdict challenge to prior counsel’s effectiveness in the trial which resulted in his conviction of first degree murder. We affirm.

As with many cases involving pro se litigants, the procedural history is obscure and confused, and the record contains gaping omissions. Nonetheless, we glean the following from the record here on appeal.

On October 15, 1987, appellant filed a complaint asserting claims for attorney malpractice against appellee seeking compensatory and punitive damages. The underlying basis for the claim was explained in the complaint as follows.

In May 1983, appellant was convicted of first degree murder. After trial appellant filed a pro se motion for withdrawal of trial counsel and appointment of new counsel alleging eleven instances of ineffective assistance of counsel. Prior counsel was permitted to withdraw and present appellee was appointed as counsel.

Following appointment of appellee, appellant filed a pro se brief in support of the eleven claims of ineffectiveness previously asserted in the pro se motion. Appellee subsequently filed counselled supplemental post-verdict motions and a brief in support thereof. Appellant subsequently filed another pro se motion and memorandum of law in support of five additional grounds for post-verdict relief. Later, appellant filed two more pro se contentions.

An evidentiary hearing was conducted, at which appellee questioned prior counsel regarding various ineffectiveness claims. Appellant’s complaint against appellee is that appellee failed to ask prior counsel a list of questions (not in the record) which appellant prepared relating to the grounds asserted by appellant pro se, and in failing to otherwise question appellant regarding those grounds.

The complaint fails to indicate the disposition of the post-verdict motions, or whether any appeal or post-conviction relief proceedings followed.¹ The complaint nonetheless seeks compensatory and punitive damages in the amount of $20,000, and such other relief as the court should deem proper.

Judgment of non pros was entered on December 8, 1988. Appellant contends that he sent a petition to open on December 14,1988, but that it was returned unfiled because the judgment of non pros had not yet been docketed. On December 27, 1988, appellant filed notice of appeal. On January 2, 1989, appellant filed a praecipe for entry of an adverse order. On January 10, 1989, the Judgment of Non Pros was finally entered on the docket. Rather than resubmitting his petition to open, appellant proceeded with the instant appeal.

On appeal appellant contends the trial court abused its discretion in entering the non pros. We cannot agree.

When reviewing the entry of a judgment of non pros, it is well settled law that the decision will not be reversed on appeal absent an abuse of discretion on the part of the trial court. Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988). This Court has recently determined that a party may file a direct appeal from the entry of a judgment of non pros without filing a petition to open the judgment prior to the filing of an appeal. Valley Peat & Humus v. Sunnyland Inc., 398 Pa.Super. 400, 581 A.2d 193; (Johnson, J., dissenting); Williams v. Gallagher, 396 Pa.Super. 584, 579 A.2d 403 (1990) (Johnson, J., dissenting). In order to establish grounds to open a judgment non pros, a petitioner must demonstrate:

1) the petition to open was timely filed;

2) the default can be reasonably explained; and,

3) facts in support of a proper cause of action are alleged.

See Walt Medical v. Electro Nucleonics, 400 Pa.Super. 274, 583 A.2d 492 (1990). Setting aside the first requirement as arguably problematic in this case, it is clear that appellant’s omitted petition fails to demonstrate either of the remaining requirements standing alone, or reading the petition in conjunction with the record as a whole.

Citing Salladino v. Brooks, 324 Pa.Super. 172, 471 A.2d 518 (1984), appellant asserts that his non-appearance was excused by the fact of his incarceration. Appellant however fails to note a material and dispositive distinction between his case and Salladino. In Salladino, counsel for the incarcerated plaintiff had taken all the steps available to secure the incarcerated plaintiff’s appearance; consequently, plaintiff’s non-appearance in Salladino was not plaintiff’s fault. 471 A.2d at 520-21 & n. 2. Here, appellant failed to take any steps prior to entry of judgment non pros to ensure his availability for the proceedings.

Appellant apparently labors under the false assumption that by proceeding pro se he is absolved of all responsibility to comply with procedural rules, and that the appellee and/or the court had some affirmative duty to walk him through the procedural requirements, or to ignore the procedural requirements, in order to reach the merits of his claim. Such is not the case. The United States Supreme Court has explained:

The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.

Farretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2540 n. 46, 45 L.Ed.2d 562, 581 n. 46 (1975); see also Wiegand v. Wiegand, supra, 525 A.2d at 774. Thus, appellant’s default is not reasonably explained in his petition to open.

Moreover, and perhaps even more importantly, appellant’s underlying complaint fails entirely to establish a legitimate cause of action. Appellant has failed to aver facts sufficient to establish proximate cause or causation in fact with regard to his underlying attorney malpractice claim.

In Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112 (1988), this Court explained that four things must be established to prove a claim of attorney malpractice:

1) the employment of the attorney or other basis for a duty to act on the part of the attorney;

2) the failure of the attorney to exercise ordinary skill and knowledge;

3) that such negligence was the proximate cause of damage to the plaintiff; and,

4) that the plaintiff would have succeeded on the underly- • ing claim but for the attorney’s negligence.

551 A.2d at 1115. Here, as in Ibn-Sadiika, appellant failed entirely to aver facts which, if proved, would establish either proximate causation with respect to damages or actual cause in that but for counsel’s alleged negligence the damages claimed would not have been incurred. While amendment might be permitted or required in other circumstances, here as in Ibn-Sadiika, the allegations of ineffectiveness “are appallingly vague and conclusory,” and would weigh heavily against allowance of amendment even if this were a simple appeal from summary judgment. 551 A.2d at 1117.

The unique procedural posture of this case, however, precludes allowance of amendment to state a claim. Here, rather than appealing summary judgment, appellant seeks to open a judgment of non pros. As stated earlier in this opinion, it is well settled that a party seeking to open a judgment of non pros via a petition to open must set forth the existence of a proper underlying claim. See Walt Medical v. Electro Nucleonics, supra. Accordingly, it follows that an appellant who bypasses the petition to open process before the trial court and files a direct appeal to this Court must also meet the requirement of stating a proper cause of action. Instantly, appellant has failed to meet his burden of setting forth a proper cause of action. Therefore, we are constrained to allow the trial court’s entry of judgment of non pros to stand.

Order Affirmed.

OLSZEWSKI, J., joined the majority opinion and filed a concurring statement. JOHNSON, J., filed a dissenting opinion.

1 . Appellee’s brief indicates that the post-verdict motions were denied, and a sentence of death was imposed on December 30, 1987. These facts, however, are not of record in the instant case.