Opinion
2200 EDA 2021 J-S22032-22
01-18-2023
JOHN J. LYNCH Appellant v. BENJAMIN COOPER, ESQ. ALLAN J. SAGOT, ESQ. ALLAN J. SAGOT ASSOCIATES
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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
SULLIVAN, J.
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. 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 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, 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.
Lynch filed his complaint while incarcerated at SCI-Dallas.
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.
Counsel for Attorney Cooper 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. See Pa.R.Civ.P. 1042.3(a) (requiring the 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.
Counsel represented Attorney Cooper individually and did appear on behalf of Attorney Sagot or Sagot Associates.
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.
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. 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.
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.
The Honorable Ann Butchart decided Lynch's petition to open the judgment of non pros as to Attorney Cooper.
Attorney Sagot and Sagot Associates were not served with original process, nor had they taken any actions with respect to Lynch's original or amended complaint. 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.
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").
Judge Linda Carpenter presided over the matter beginning in 2021.
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.Lynch timely appealed from the September 29, 2021 order dismissing the entire case. 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. See Judge Carpenter's Opinion, 6/30/22, at 4-5 (unnumbered); Judge Butchart's Opinion, 12/2/21, at 4 (unnumbered).
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.
On 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.
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.
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.
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.
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 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 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.
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.
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.
Appeal quashed.
Judge McCaffery joins this memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
BOWES, J.
The Majority holds that, because this timely appeal was taken from an interlocutory order, we must quash this appeal. Majority Memorandum at 9. I respectfully disagree that quashal is mandatory, and, therefore, I respectfully dissent.
I begin by noting that the trial court purported to dismiss the case in its entirety, not merely the claims against the lone defendant who filed a praecipe to enter a judgment of non pros, and that the docket entry for the appealed-from order designates it as an order entering a final disposition. As such, the argument could be made that the order from which Mr. Lynch appealed is indeed a final order that erroneously disposed of claims not before the court. However, in Bloome v. Alan, 154 A.3d 1271, 1274 (Pa.Super. 2017), upon which the Majority relies in its disposition, this Court held in the same circumstances that the order did not effectively terminate the action against unserved defendants despite its stated intent to dismiss the complaint in toto. Therefore, I proceed with the understanding that, despite all indications to the contrary, Mr. Lynch's claims against Attorney Sagot and Sagot Associates were not dismissed by the trial court's September 29, 2021 order. Nonetheless, while Bloome may control the determination of the finality of the order before us, neither it nor the appellate rules mandates that this appeal be quashed.
The Rules of Appellate Procedure expressly state that they "shall be liberally construed to secure the just, speedy, and inexpensive determination of every matter to which they are applicable." Pa.R.A.P. 105(a). "In the interest of expediting decision," with exceptions not pertinent here, this Court may "disregard the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction." Id.
Along these lines, our Rules provide that "that jurisdiction in appellate courts may be perfected after an appeal notice has been filed[.]" U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua, 193 A.3d 994, 998 (Pa.Super. 2018) (cleaned up). For example, Rule 902 explains that the "[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal[.]" Pa.R.A.P. 902. Instead, the failure "is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken." Id. Rule 905, in turn, provides that "[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof." Pa.R.A.P. 905(a)(5).
Accordingly, it is well-settled that, to further the interests of judicial economy, quashal of an interlocutory appeal need not necessarily result if the correction of a procedural misstep could perfect our jurisdiction. Pursuant to case law, we may exercise the option "to regard as done that which ought to have been done" when it is clear from the record that the appealed-from order was intended "to be a final pronouncement on the matters." Franciscus v. Sevdik, 135 A.3d 1092, 1094 n.2 (Pa.Super. 2016) (cleaned up). In other instances, we have ordered what ought to have been done to actually be done within a limited timeframe to avoid quashal. See, e.g., Commonwealth v. Young, 280 A.3d 1049, 1057 (Pa.Super. 2022) (remanding for the appellant to file separate notice of appeal within ten days and stating failure to do so will result in quashal); Heasley v. Carter Lumber, 843 A.2d 1274, 1275 n.1 (Pa.Super. 2004) (deciding merits of appeal filed from interlocutory order after the appellants complied with this Court's direction to file a praecipe for the entry of judgment).
See also Zaminsky v. Dodge, 2107 EDA 2014 (Pa.Super. March 23, 2015) (per curiam order granting the appellants ten days to dismiss outstanding claims within ten days or face quashal); Reinoso v. Kohl's Department Stores, Inc., 3174 EDA 2012 (Pa.Super. July 1, 2014) (per curiam order directing the trial court to enter an order concluding the litigation as to all parties or to inform this Court whether any claims remained undecided).
In my view, since this appeal has been fully briefed and assigned to a merits panel for disposition, automatic quashal is not in keeping with "the just, speedy, and inexpensive determination" of this matter. Pa.R.A.P. 105(a). Rather, I would enter an order giving Appellant an opportunity, if he chooses to forgo his claims against those defendants, to file a praecipe to dismiss his claims against Attorney Sagot and Sagot Associates before quashing this appeal and making the parties start the process anew.
Therefore, I respectfully dissent.