Mitchell, J. v. Sturm, C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES MITCHELL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHERYL STURM : No. 1569 EDA 2019
Appeal from the Order Entered April 26, 2019
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2015-001107
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: Filed: June 18, 2020
James Mitchell appeals pro se from the April 26, 2019 order denying his
petition to open and/or strike the judgment of non pros that was entered after
he failed to file a certificate of merit in this action against Cheryl Sturm,
Esquire. We affirm.
As there have been no factual determinations as of record, we glean the
following facts from Appellant’s civil complaint and the attendant exhibits. On
May 8, 2012, Appellant, who is serving a life sentence for murdering Tyrell
Hinton, contacted Attorney Sturm to represent him in litigating either a serial
petition under the Post-Conviction Relief Act or a second federal habeas corpus
petition. Appellant’s judgment of sentence became final in 2002 and the state
and federal courts denied all of Appellant’s prior requests for collateral relief.
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* Retired Senior Judge assigned to the Superior Court.
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On May 14, 2012, Attorney Sturm presented Appellant with a detailed
fee agreement wherein she informed him that for a non-refundable retainer
of $4,500.00, she would draft an opinion letter outlining her assessment of
the merits of his case, and advise him as to a plan of action. The letter also
informed Appellant that, if he sought collateral relief, the retainer would be
counted toward her basic fee of $12,500.00 for that procedure. Appellant
agreed, and Attorney Sturm provided him with an opinion letter
recommending that Appellant file a Fed.R.Civ.P. 60(b)(6) motion in the district
court to obtain reconsideration of a prior, untimely habeas petition based on
a change in the governing law. Specifically, she recommended that he invoke
Martinez v. Ryan, 132 S.Ct 1309, 182 (2012), which she described as
permitting him to litigate a habeas petition asserting a procedurally-barred
issue based on a layered ineffective assistance of counsel claim implicating
prior PCRA and appellate counsel.
Attorney Sturm stressed that the remaining fee to litigate the Rule 60(b)
motion was $8,000 plus expenses. Appellant agreed and paid the balance due
to Attorney Sturm. However, prior to the date Attorney Sturm filed the Rule
60(b) motion, Appellant voiced his concern that the proposed motion would
be considered a successive habeas petition, which required authorization from
the court of appeals in order to proceed. Nevertheless, conceding his limited
understanding of the law, Appellant ultimately deferred to Attorney Sturm’s
professional opinion. He informed counsel,
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I know you fully comprehended the law. . . in this matter,
but I am a layman. I am trying [to] reach a point of clarity. I
don’t know . . . the governing case [in] this matter. But . . . it
seems that[,] if the new issue (that we have to use) regarding
deliberation would turn the Rule 60(b) motion in to a second or
successive habeas corpus [petition].
My question is, do you think the Court would grant our
motion in part and dismiss the new issue without prejudice? If
so[,] how would we proceed from there?
Letter, 7/17/12, unnumbered at 1-2; Complaint, 2/6/15, at Exhibit C. He
revisited his concerns in a subsequent letter to counsel the following month.
Complaint, 2/6/15, at Exhibit E.
Attorney Sturm filed the Rule 60 motion seeking to reopen the case in
the federal court as she set forth in her opinion letter to Appellant.
Approximately three months later, the district court denied the motion as a
successive habeas corpus petition. In subsequent correspondence with
Appellant, Attorney Sturm agreed to file a petition for leave to file a second
habeas corpus petition under 28 U.S.C. § 2254 for no additional payment. For
reasons that are disputed, the complimentary petition was not filed.
Acting pro se, Appellant initiated this proceeding in breach of contract
and professional negligence in February 2015, and the complaint was
reinstated on December 30, 2016. As it relates to the issue on appeal, the
complaint alleged as follows:
Count I, Breach of Contract
....
37. [Appellant] performed all the conditions required of him by
agreement.
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38. [Attorney Sturm] failed to perform the conditions of the
agreement on her part in that she failed to properly institute
and prosecute the cause of action for the [Appellant] with
regard to the Rule 60 motion and application to file a second or
successive [habeas corpus] petition [under 28 U.S.C. § 2254].
39. [Appellant] is now denied Rule 60 relief as a successive [§]
2254 petition, because [Attorney Sturm] failed to bring the
action within the governing rules.
40. As a result of [Attorney Sturm’s] failure to comply with the
conditions of the agreement between the parties, [Appellant]
has not obtained Rule 60 relief through a properly prepared
motion.
41. As a further result of the [Attorney Sturm’s] failure to comply
with the conditions of her agreement, [Appellant] has been
prevented from obtaining relief through a properly
prepared motion.
42. The conduct of the [Attorney Sturm] constitutes a breach of
contract, and [Appellant] is entitled to a refund of all fees.
43. [Appellant] is also entitled to an award of punitive damages
based upon the [Attorney Sturm’s] outrageous conduct,
which demonstrates her evil motive or reckless
indifference to the rights of the [Appellant].
Complaint, 2/6/15, at 6-7 (emphases added).
The case proceeded to compulsory small-claims arbitration, and the
panel ruled in favor of Attorney Sturm. Appellant pro se filed a de novo appeal
to the common pleas court. Following the denial of her preliminary objections
and motion for judgment on the pleadings, Attorney Sturm filed notice
pursuant to Pa.R.C.P. 1042.6(a) of her intent to enter judgment of non pros
due to Appellant’s failure to file a certificate of merit in accordance with
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Pa.R.C.P. 1042.3.1 Thereafter, she filed a praecipe for entry of judgment of
non pros on March 13, 2019, and the judgment was entered that same day.
See Pa.R.C.P. 1042.7 (“The prothonotary, on praecipe of the defendant, shall
enter judgment of non pros against the plaintiff for failing to file a certificate
of merit within the required time provided that [the requirements of the rule
are satisfied.]”).
Appellant filed a timely petition to open or strike the judgment of non
pros, Attorney Sturm filed her response, and on April 26, 2019, the trial court
denied the petition. Appellant appealed the order denying relief and complied
with the trial court’s order to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Appellant raised one issue, which
he presents on appeal as follows,
A. Whether the trial court erred in denying Appellant’s petition to
reopen and/or strike judgment of non pros where his complaint
contains [a] count for breach of contract which [is] not subject
to any requirement that a certificate of merit be filed because
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1 Rule 1042.3 provides that “[i]n any action based upon an allegation that a
licensed professional deviated from an acceptable professional standard,” the
plaintiff’s attorney shall file a certificate of merit within sixty days after the
filing of the complaint averring that: (1) a qualified licensed professional has
supplied a written statement that the defendant deviated from an acceptable
professional standard and that such conduct caused the harm; or (2) the claim
against the defendant is premised on allegations that other licensed
professionals who worked under the supervision of the defendant deviated
from an acceptable professional standard; or (3) expert testimony of a
qualified licensed professional is unnecessary to prosecute the claim.
Pursuant to Rule 1042.3(e), “If a certificate is not signed by an attorney, the
party signing the certificate of merit shall . . . attach to the certificate of merit
the written statement from an appropriate licensed professional as required
by [the Rule].” Pa.R.C.P. 1042.3(e).
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the [Attorney Sturm] failed to provide professional services
consistent with those expected to satisfy the term of the
contract?
Appellant’s brief at 3 (unnecessary capitalization omitted).
At the outset, we address Attorney Sturm’s assertion that the appeal is
untimely because it was filed more than thirty days after the trial court entered
the judgment of non pros. This positon is founded upon the ensconced legal
principle that the filing of a motion for reconsideration is insufficient to toll an
appeal period unless the trial court expressly grants reconsideration of the
appealable order. See Valley Forge Center Assocs. v. Rib-It/K.P., 693
A.2d 242 (Pa.Super. 1997). However, because a petition for reconsideration
is legally distinct from a petition to strike or open a judgment of non pros, the
principle that Attorney Sturm asserts herein is inapplicable. In reality, an
appeal cannot be taken directly from the entry of judgment of non pros. See
Pa.R.C.P. 3051(a) (“Relief from a judgment of non pros shall be sought by
petition.”). Thus, a party must file a petition to open, vacate, or strike the
non pros, and the order denying relief is appealable as of right. Id.; Pa.R.A.P.
311(a)(1) (appeal as of right from orders denying petitions to “open, vacate
or strike judgments”). Accordingly, because Appellant appealed the order
denying his petition to open/strike the judgment of non pros within thirty days
of the date that the trial court entered that order, the appeal is timely, and
we address the merits of Appellant’s argument.
As noted, supra, this is an appeal from a denial of a petition to
open/strike a judgment of non pros entered pursuant to Pa.R.C.P. 1042.7(a)
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due to Appellant’s failure to file a certificate of merit within sixty days of filing
his complaint for professional malpractice and, at least nominally, breach of
contract. We review a trial court’s denial of relief from the judgment of non
pros in accordance with Pa.R.C.P. 3051 for an abuse of discretion, which
“means that the trial court’s decision will be overturned only if it reflects
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support as to be clearly erroneous.” Womer v. Hilliker, 908 A.2d
269, 273 (2006). Rule 3051 provides, in pertinent part, as follows:
(a) Relief from a judgment of non pros shall be sought by petition.
All grounds for relief, whether to strike off the judgment or to open
it, must be asserted in a single petition.
(b) If the relief sought includes the opening of the judgment, the
petition shall allege facts showing that
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate
excuse for the inactivity or delay, and
(3) there is a meritorious cause of action.
Pa.R.C.P. 3051 (a) and (b). Appellant’s petition to open was timely filed and
his complaint avers a potentially meritorious cause of action. Hence, this
appeal concerns whether he provided a legitimate excuse for failing to file the
certificate of merit.
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The gravamen of Appellant’s argument is that he was not required to
produce a certificate of merit in order to litigate his breach of contract claim.2
In this vein, he contends that Attorney Sturm “failed to fulfill the objectives
[of the agreement] as a result of her failure to adhere to Appellant’s request
concerning the way [she] framed the claim in the Rule 60 motion[.]”
Appellant’s brief at 9. He opines that since he alleged that Attorney Sturm
“failed to provide the professional services consistent with those expected to
satisfy the terms of the contract[,]” a certificate of merit was not necessary
and the trial court erred in entering a judgment of non pros pursuant to Rule
1042.7. We disagree. As explained infra, Appellant’s allegations pertain to
the quality of Attorney Sturm’s professional representation, and not a failure
to perform under the contract.
As this Court has stated,
In order to determine whether an action is a professional
negligence claim as opposed to another theory of liability, this
Court must examine the averments made in the complaint. The
substance of the complaint rather than its form is the controlling
factor to determine whether the claim against a defendant sounds
in professional negligence or contract.
Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282, 1287 (Pa Super.
2009) (citations omitted). We continued, “a typical breach of contract action
involves (1) the existence of a contract, (2) a breach of a duty imposed by the
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2 Since Appellant does not contest that Count II of his complaint expressly
alleged professional negligence and required a certificate of merit, which he
failed to produce, we do not address that aspect of the complaint any further.
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contract, and (3) damages. In a breach of contract action against a
professional, the professional’s liability must be based upon the terms of the
contract.” Id. (citations omitted).
The allegations in Appellant’s Count I sounded in professional negligence
rather than a breach of contract. Indeed, Appellant complained that Attorney
Sturm “failed to properly institute and prosecute the cause of action,” “failed
to bring the action within the governing rules,” neglected to obtain “Rule 60
relief through a properly prepared motion,” “prevented [Appellant] from
obtaining relief through a properly prepared motion[;]” and engaged in
“outrageous conduct, which demonstrates her . . . reckless indifference to
[Appellant’s] rights [.]” Complaint, 2/6/15, at 6-7. Significantly, because all
of these assertions implicate Attorney Sturm’s professional judgment and the
care that she put into her work on his behalf, Appellant will require expert
testimony to prove that the decisions, motions, and conduct that Appellant
assails were, in fact, improper. See Zokaites Contracting Inc., supra at
1288 (as averments implicating exercise of care and professional judgment
would require expert testimony to establish, they cannot be deemed to relate
to contractual duties). Thus, we reject Appellant’s contention that the
certificate of merit was not required for this count.3
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3 To the extent that Appellant conceivably had a basis to assert a breach of
contract based upon his allegation that counsel neglected her promise to file
a complimentary petition for a successive habeas petition, Appellant does not
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Furthermore, as it relates to Appellant’s argument that Attorney Sturm
failed to fulfill the objectives of the agreement because she disregarded his
apprehension about the Rule 60 motion, Appellant’s pleading and the attached
exhibits demonstrate that Attorney Sturm did not agree to litigate the Rule 60
motion in a manner consistent with Appellant’s concerns. Instead, she set
forth in the fee agreement her intention to provide an opinion letter and devise
a plan of action based on her professional review of Appellant’s case. The
ensuing opinion letter set forth her proposal to file a Rule 60 motion in
accordance with the view she outlined therein, i.e. seek to reopen the final
order denying his prior habeas petition based upon layered claims of
ineffective assistance of counsel. Attorney Sturm did not alter this position
based upon Appellant’s subsequent correspondence charting his interpretation
of the case law.
Importantly, Appellant ultimately acceded to counsel’s professional
expertise, albeit with some trepidation, without demanding an alternate
course of action. See Complaint, 2/6/15, at Exhibit C (“I know you fully
comprehended the law . . . in this matter, but I am a layman. I am trying
[to] reach a point of clarity.”); Exhibit E (“I am a layman and you have stated
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raise this argument in his brief. See id. at 8-10. Accordingly, it is waived
and we cannot assert the argument on his behalf. Irwin Union Nat'l Bank
& Trust Co. v. Famous, 4 A.3d 1099, 1103 (Pa.Super. 2010) (“This Court
will not act as counsel and will not develop arguments on behalf of an
appellant.”).
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that it is your professional opinion that the [Rule] 60(b) motion is the best
course of action in my case. . . . I am ready to go, and move foreword [sic]
as soon as possible.”). Moreover, Appellant signed the Rule 60 motion,
attesting, inter alia, that he read the motion, understood the legal issue, and
adopted the statement of facts and legal issues as if he had prepared the
document himself. See Supplemental Exhibits in Support of Preliminary
Objection, 3/6/18, at Exhibit F. No relief is due. Attorney Sturm did precisely
what she agreed to do in the fee agreement; Appellant is simply dissatisfied
with the result. To prevail in a claim against her, therefore, Appellant will
require expert testimony to establish that Attorney Sturm’s representation
violated the standard of care.
For all of the foregoing reasons, we affirm the trial court’s order denying
the petition to open or strike the judgment of non pros entered because
Appellant failed to file a certificate of merit pursuant to Rule 1042.3.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/20
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