Grivas, I. v. Shaw, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IRENE GRIVAS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANDREW SHAW, ESQ., D/B/A LAW : No. 1207 MDA 2022
OFFICE OF ANDREW H. SHAW, PC & :
LAW OFFICE OF ANDREW H. SHAW, :
PC :
Appeal from the Order Entered August 1, 2022
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-15-09386
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 25, 2023
In this legal malpractice action, Irene Grivas (Appellant), who is
represented by counsel of record, appeals pro se from the order entered in
the Lancaster County Court of Common Pleas, which granted the motion of
Andrew Shaw, Esq., D/B/A Law Office of Andrew H. Shaw, PC & Law Office of
Andrew H. Shaw, PC (collectively, Appellee) to dismiss Appellant’s complaint
for lack of prosecution.1 The trial court now suggests we vacate the order and
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* Retired Senior Judge assigned to the Superior Court.
1 “Courts treat the terms ‘dismissal for lack of prosecution’ and ‘judgment of
non pros’ synonymously.” Cardona v. Buchanan, 230 A.3d 476, 477 n.3
(Pa. Super. 2020) (citation omitted).
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remand for a hearing, on the ground it incorrectly accepted Appellee’s reliance
on caselaw, now overruled, that a two-year passage of non activity could
establish a presumption of prejudice.2 We vacate and remand on another
basis — that there were several irregularities surrounding Appellant’s multiple
pro se filings, as well as the trial court’s failure to serve the underlying
dismissal order on counsel of record.
We briefly summarize that previously, Appellee, an attorney,
represented Appellant in an estate matter concerning Appellant’s mother, who
was adjudicated incapacitated. In that matter, the orphans’ court appointed
a bank to be guardian of the mother’s estate. In 2008, Appellant, represented
by Appellee, filed objections to the guardian’s accounting, which were denied.
Appellant appealed, and this Court affirmed on August 13, 2013.3 See In re:
E.G., an Incapacitated Person, 1564 MDA 2012 (unpub. memo). (Pa.
Super. Aug. 13, 2013).
On October 28, 2015, Appellant, represented by Matthew Weisberg,
Esquire, filed a praecipe for a writ of summons against Appellee. Appellant
filed a complaint on December 11, 2015, and, following a series of preliminary
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2 Trial Ct. Op., 10/6/22, at 8, citing Jacobs v. Halloran, 710 A.2d 1098 (Pa.
1998).
3 The mother died in December of 2014. Trial Ct. Op., at 2 n.1.
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objections, a fourth amended complaint on September 25, 2017.4 Appellant
presented claims of professional negligence, breach of contract, and breach of
fiduciary duty. Appellee filed an answer and new matter on July 17, 2018,
which the trial court noted was almost three years after the commencement
of this case. See Trial Ct. Op. at 3.
Thereafter, on August 29, 2019, Attorney Weisberg filed a motion for
leave to withdraw from representing Appellant. Over Appellant’s objection,
the trial court granted this motion on December 6, 2019.5 On December 18th,
present counsel for Appellant, James Wolman, Esquire, entered his
appearance. We note that Attorney Wolman remains counsel of record,
although he has not filed any other documents in this matter.6
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4 Appellant’s initial complaint also named as defendants: (1) Scott Mitchell,
Esq., d/b/a Rhoads & Sinon LLP, d/b/a Rhoads & Sinon Group LLC, d/b/a
Rhoads & Sinon, f/d/b/a McNees Wallace & Nurick LLC; and (2) Rhoads &
Sinon LLP, d/b/a Rhoads & Sinon Group LLC, d/b/a Rhoads & Sinon, and
f/d/b/a McNees Wallace & Nurick LLC. However, Appellant’s first amended
complaint was filed only against Attorney Shaw and his law practice.
5 Appellant had filed a pro se answer to Attorney Weisberg’s motion to
withdraw, objecting to his withdrawal, and subsequently, a pro se motion for
reconsideration of the trial court’s order permitting him to withdraw.
Furthermore, we note at this time, the matter was reassigned to the
current trial judge, the Honorable David Ashworth, President Judge, following
the retirement of the previously assigned trial judge.
6 An “attorney of record” is defined as “an attorney at law who is entered on
the docket or record of a court as appearing for or representing a party in a
legal proceeding.” Pa.R.C.P. No. 76. Generally, “an attorney may not
withdraw his or her appearance without leave of court.” Pa.R.C.P. 1012(b)(1).
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The next substantive filing on the trial docket was Appellee’s underlying
May 23, 2022, motion to dismiss Appellant’s complaint for lack of prosecution,
along with a supporting brief. Appellee pointed out the lack of any docket
activity for more than two years since Attorney Wolman’s entry of
appearance.7 See Appellee’s Motion to Dismiss for Lack of Prosecution,
5/23/22, at 2. Appellee served both the motion and brief on Appellant’s
counsel, Attorney Wolman. See Appellee’s Certificate of Service for Motion to
Dismiss for Lack of Prosecution, 5/3/22.
On May 31, 2022, Appellant filed a pro se “Motion to Stay,” arguing that
in April of 2018, in the ongoing, underlying estate case involving her mother,
the orphans’ court “stated on the record that all pending cases be Stayed until
the conclusion of” that case.8 Appellant’s Motion to Stay, 5/31/22. On June
10th, Appellee filed an answer and objection, responding to the merits of
Appellant’s pro se motion; Appellee likewise served this answer on Attorney
Wolman. On June 13th, Appellant filed a pro se “Answer” to the motion to
dismiss. There is no indication in the record or trial docket that the clerk of
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7 The trial court’s opinion stated a rule was entered on Appellant to show cause
why Appellee was not entitled to relief. Trial Ct. Op. at 3. However, neither
the trial docket nor certified trial record included this rule to show cause.
8 Appellant attached an April 4, 2018, orphans’ court order in support. The
trial court found nothing in this order referred to a stay of related civil actions.
Trial Ct. Op. at 6-7.
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courts forwarded either pro se filing — the “Motion to Stay” or “Answer” — to
Appellant’s counsel, Attorney Wolman.
On August 1, 2022, the trial court entered two separate orders. First,
the court granted Appellee’s motion to dismiss for lack of prosecution,
essentially entering judgment non pros in favor of Appellee. The second order
denied Appellant’s pro se “Motion to Stay.” Both orders were entered after
consideration of Appellant’s pro se responses on the merits,9 and neither order
was served on Attorney Wolman.10
Next, on August 15, 2022, Appellant filed a pro se “Motion to Vacate,”
which stated, inter alia, that her counsel was not provided with a copy of the
August 1st order granting Appellee’s motion to dismiss. See Appellant’s
Motion to Vacate, 8/15/22, at 1 (unpaginated). Appellant attached a copy of
an August 12th email, purportedly from Attorney Wolman to her, which
stated: (1) the trial court did not copy him on the order; (2) nevertheless,
Attorney Wolman had reviewed the docket and saw the order; and (3) he
intended to draft a petition to strike the judgment, but could not do so until
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9 See Order, 8/1/22 (granting Appellee’s motion to dismiss after consideration
of “Appellant’s pro se response”); Order, 9/6/22, at 2 n.1 (explaining trial
court “weighed [Appellant’s] pro se response” but ultimately granted
Appellee’s motion to dismiss “based upon the facts of the case”).
10 But see Pa.R.C.P. 236(a)(2) (prothonotary shall immediately give written
notice of the entry of any order or judgment to each party’s attorney of record)
(discussed infra).
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the following week. Id. at Exh. A. Next, on August 26th, Appellant filed a
pro se notice of appeal.11 The docket does not indicate the court sent either
pro se filing to counsel of record.
Thereafter, on September 6, 2022, the trial court denied Appellant’s
“Motion to Vacate” as “a legal nullity given [Appellant’s] representation by
counsel.[ ]” Order, 9/6/22, at 1. We note this order was served on Attorney
Wolman. In a footnote, the trial court cited the principles: (1) “Pennsylvania
courts disfavor hybrid representation[; (2)] pro se filings by represented
parties are generally deemed to have no legal effect and are considered legal
nullities[;]” and (3) a pro se filing could present “a conflict between lawyer
and client, [which] could undermine [the party’s] chance of success.” Id. at
1 n.1, citing Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011);12
Commonwealth v. Ali, 10 A.3d 282, (Pa. 2010); Commonwealth v. Ellis,
626 A.2d 1137 (Pa. 1993). However, the court then found “there was no
conflict between” Appellant and her attorney where the latter had “failed to
respond” to Appellee’s motion to dismiss. Order, 9/6/22, at 2 n.1. In other
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11 The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement
of reasons relied upon for appeal.
12 Jette was abrogated on other grounds by Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021). See Bradley, 261 A.3d at 401 (“[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 at the first
opportunity to do so, even if on appeal.”).
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words, the court reasoned, even if it had “rejected [Appellant’s earlier] pro se
response as a legal nullity,” the outcome would have been the same — the
court would have granted Appellee’s motion to dismiss on the ground
Appellant’s counsel did not file any response. Id.
Finally, the trial court’s September 6, 2022, order acknowledged that its
August 1st order, granting Appellee’s motion to dismiss the complaint, was
not served on Appellant’s counsel. Order, 9/6/22, at 2 n.1. Nevertheless, the
court found this “oversight did not prejudice” Appellant, as Attorney Wolman
had acknowledged, in the August 12th email, “that the appropriate action was
to file a petition to strike the judgment[,]” but ultimately, he filed no such
petition. Id.
Appellant has filed a pro se brief on appeal. She presents two issues for
our review:
I. Whether the trial court abused its legal discretion in nullifying
[A]ppellant[’]s pro se response [to A]ppellee’s motion to dismiss
as a nullity for hybrid representation in the face of attorney
abandonment, sabotage, and dereliction of duties[?]
II. Whether the trial court subsequently violated [A]ppellant[’]s
substantive due process rights under the 14th Amendment for
refusing to consider her pro se responses before arriving at the
order to dismiss[?]
Appellant’s Brief at 5. We address her related claims together.
First, Appellant acknowledges the trial court followed “the established
stringent procedure in Pennsylvania[,]” that “pro se filings by represented
parties are regarded as a nullity and lack any legal effect.” Appellant’s Brief
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at 9. Nevertheless, Appellant avers, the trial court erred in “nullifying [her]
pro se responses” and in disregarding Attorney Wolman’s “sabotage,
abandonment, and dereliction of duties[.]”13 Id. Appellant contends the trial
“court bound [her] to the actions of an abandoning attorney,” in contravention
of Holland v. Florida, 560 U.S. 631 (2010), and Maples v. Thomas, 565
U.S. 266 (2012), which Appellant claims to have held “a litigant can never be
bound by the actions or omissions of an abandoning attorney.”14 Appellant’s
Brief at 9. Appellant maintains the trial “court violated her right to file pro se
responses” despite the fact that “her attorney abandoned her.” Id. at 10.
Second, Appellant avers the trial court’s rulings “contravened” Federal
Rule of Civil Procedure 60(b)(6), which she claims “creates an exception to
the rule precluding the stringent rule against pro se litigation[.]”15 Appellant’s
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13 To the extent Appellant avers the trial court dismissed all of her pro se
filings as legal nullities, we would disagree. As stated above, the trial court
reviewed both Appellant’s May 31, 2022, pro se “Motion to Stay” and her June
13th pro se response to the motion to dismiss on the merits. It was only after
the court granted Appellee’s motion to dismiss that the court construed
Appellant’s subsequent pro se filing — the “Motion to Vacate” — as a legal
nullity.
14 In light of our disposition infra, we need not review the merits of Appellant’s
interpretation of these United States Supreme Court decisions.
15 Federal Rule of Civil Procedure 60(b)(6) provides:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(Footnote Continued Next Page)
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Brief at 10. Appellant maintains she was denied “an opportunity to be heard
in the face of being abandoned by her attorney.” Id.
Appellee responds this Court should affirm on the ground Appellant
failed to file the proper response (a petition to open or strike the judgment)
to the entry of judgment non pros, and thus she has waived any challenge.
Appellee’s Brief at 6. For the reasons set forth infra, we decline to find waiver
under the particular circumstances presented in the case sub judice.
Meanwhile, the trial court now suggests that a remand is appropriate on
the merits of whether Appellee has established it suffered prejudice. The
court’s opinion states it had previously credited Appellee’s reliance on Shrum
v. Pennsylvania Electric Co., 269 A.2d 502 (Pa. 1970), for the proposition
that “a lapse of time may in itself be presumptively prejudicial without any
specific showing of prejudice on the record.” Trial Ct. Op. at 8 (quotation
marks & footnote omitted). See Jacobs, 710 A.2d at 1101 (“A Court may
properly enter a judgment of non pros when a party . . . has shown a want of
due diligence in failing to proceed with reasonable promptitude, . . . there has
been no compelling reason for the delay, and the delay has caused some
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* * *
(6) any other reason that justifies relief.
Fed.R.C.P. 60(b)(6).
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prejudice to the adverse party, such as the death of or unexplained
absence of material witnesses.”) (emphasis added), quoting James Brothers
Co. v. Union Banking & Trust Co. of DuBois, 247 A.2d 587, 589 (Pa. 1968).
In light of the multiple irregularities in the procedural history of this
matter, we conclude that remand is appropriate and vacate the order granting
Appellee’s motion to dismiss for lack of prosecution.
First, as both the trial court and Appellant have acknowledged: “As
hybrid representation is not permitted in the Commonwealth, our courts ‘will
not accept a pro se motion while an appellant is represented by counsel;
indeed, pro se motions have no legal effect and, therefore, are legal nullities.’”
Commonwealth v. Williams, 241 A.3d 353, 354 n.1 (Pa. Super. 2020). In
criminal matters, our Supreme Court has held: “[T]he proper response to any
pro se pleading is to refer the pleading to counsel, and to take no further
action on the pro se pleading unless counsel forwards a motion.” Jette, 23
A.3d at 1044. See also Williams, 241 A.3d at 354 n.1 (“Generally, when a
counseled defendant files a pro se document, courts do not act on the filing,
but instead note it on the docket and forward it to counsel pursuant to
Pa.R.Crim.P. 576(A)(4).”).
Although these above decisions were in criminal matters, this Court has
acknowledged the general prohibition against hybrid representation in a child
custody appeal. See S.C.B. v. J.S.B., 218 A.3d 905, 911 n.4. (Pa. Super.
2019) (acknowledging general rule that as “our courts prohibit pro se filings
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by represented appellants, . . . we treat those filings as legal nullities,” but
noting pro se notices of appeal filed by represented parties are treated
differently and thus permitted). We have also applied these principles in an
unpublished memorandum in a dependency matter, and the Commonwealth
Court has applied them in an unreported memorandum in a civil matter. See
Interest of K.R., 669 EDA 2019 (unpub. memo. at 5 n.4) (Pa. Super. July
15, 2020); N. Coventry Twp. v. Tripodi, 1023 C.D. 2020, 2021 WL 6057239(unpub. memo. at *8 n.15) (Pa. Cmwlth. Dec. 22, 2020), appeal denied, 435
MAL 2022 (Pa. Mar. 23, 2022).16
Notably, here, the trial court itself acknowledged the prohibition against
hybrid representation. See Order, 9/6/22, at 1 n.1, citing Ali, 10 A.3d at
293; Jette, 23 A.3d at 1040; Ellis, 626 A.2d at 1139. However, we determine
the trial court has erred in not applying this prohibition consistently. As stated
above, it addressed Appellant’s, pro se responses to the motion to dismiss on
the merits, despite the fact that Attorney Wolman remained counsel of record,
in its review of Appellee’s motion to dismiss Appellant’s complaint.
More importantly, we emphasize the trial court failed to serve the
underlying order — which again dismissed Appellant’s complaint and entered
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16 “[A]n unpublished non-precedential memorandum decision of the Superior
Court filed after May 1, 2019[, as well as] an unreported memorandum opinion
of the Commonwealth Court filed after January 15, 2008 . . . may be cited for
their persuasive value.” Pa.R.A.P. 126(b)(1)-(2).
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judgment non pros against her — on Attorney Wolman. Pennsylvania Rule of
Civil Procedure 236 provides that when an order or judgment is entered, “[t]he
prothonotary shall immediately give written notice . . . to each party’s
attorney of record or, if unrepresented, to each party. The notice shall
include a copy of the order or judgment.” Pa.R.C.P. 236(a)(2) (emphases
added). As noted above, an “attorney of record” is an attorney “who is
entered on the docket or record of a court as appearing for or representing a
party in a legal proceeding,” and generally, “an attorney may not withdraw
his or her appearance without leave of court.” Pa.R.C.P. 76, 1012(b)(1).
We disagree with the trial court’s suggestion that Appellant suffered no
prejudice as a result of this error, as her email exhibit purported to show
Attorney Wolman was aware of the order, but nevertheless failed to act on it.
We disagree that this un-authenticated exhibit, in the absence of any
evidentiary hearing or further investigation by the court, excuses the failure
to serve this order on counsel of record. Again, Pa.R.C.P. 236(a) clearly
requires the court prothonotary to give written notice of any judgment or order
to the attorney of record, along with a copy of the judgment or order. It is
not disputed this was not accomplished here.
Furthermore, we address the trial court’s finding that Appellant’s pro se
August 15, 2022, “Motion to Vacate” was a legal nullity. See Order, 9/6/22,
at 1-2 n.1. While we would conclude this was a proper rejection of Appellant’s
pro se filings, we note it was inconsistent with the court’s treatment of the
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earlier pro se filing, and indeed somewhat inconsistent with its own reasoning,
in the same footnote, that there was no conflict between Appellant’s and
Attorney Wolman’s positions. See id., citing Jette, 23 A.3d at 1040. The
court correctly stated that one reason against hybrid representation was the
potential conflict between pro se and counseled arguments on appeal, which
could undermine the appellant’s chance of success. See id. If — as the trial
court reasoned — Appellant’s and Attorney Wolman’s positions were
compatible, then this concern would not apply. However, the court found the
pro se filing was a legal nullity.
Finally, we acknowledge that although Attorney Wolman remains
counsel of record, the docketing sheets in this appeal indicate Appellant is
proceeding pro se, and she filed a pro se brief.
In light of the many, particular irregularities presented in this matter,
especially the trial court prothonotary’s failure to serve the August 1, 2022,
order dismissing Appellant’s complaint on Attorney Wolman, we determine
that Appellant is entitled to some relief. We thus vacate the August 1, 2022,
order granting Appellee’s motion to dismiss, and remand for further
proceedings. We note this disposition is consistent with the trial court’s
suggestion that we vacate and remand, albeit on different grounds.
Within 30 days of this Court’s remand, the trial court shall determine
the status of Appellant’s counsel. If Attorney Wolman withdraws from
representation, then the trial court shall give an additional 30 days’ time from
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the withdrawal for new counsel to enter an appearance or for Appellant to
advise the court she will proceed pro se.
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/25/2023
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