J-S58018-16



NON-PRECEDENTIAL DECISION–SEE SUPERIOR COURT I.O.P. 65.37
ARTHUR LEE EARNEST                IN THE SUPERIOR COURT OF
                                        PENNSYLVANIA
                   Appellant

                       v.

MAZZA LAW GROUP & STEVEN P.
TRIALONAS

                                                   No. 2052 MDA 2015


               Appeal from the Order Entered September 4, 2015
                In the Court of Common Pleas of Centre County
                       Civil Division at No(s): 2015-3376


BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 21, 2016

       Arthur Lee Earnest appeals from the September 4, 2015 order

dismissing this pro se legal malpractice case, wherein Appellant sought to

proceed in forma pauperis, as frivolous under Pa.R.C.P. 240(j). We affirm.

       The following recitation of the facts is taken from two prior

unpublished memoranda1 pertaining to Appellant’s criminal matter.      The

____________________________________________


1
  See Commonwealth v. Earnest, 30 A.3d 534 (Pa.Super. 2011)
(unpublished memorandum), and Commonwealth v. Earnest, 87 A.3d
882 (Pa.Super. 2013) (unpublished memorandum). We conclude that the
unpublished memoranda can be relied upon by this Court pursuant to IOP
§ 65.37:
      A. An unpublished memorandum decision shall not be relied
         upon or cited by a Court or a party in any other action or
         proceeding, except that such a memorandum decision may
(Footnote Continued Next Page)


* Retired Senior Judge assigned to the Superior Court.
J-S58018-16



outcome of that criminal proceeding forms the basis for the present legal

malpractice action against Appellees, The Mazza Law Group, P.C. and

Steven P. Trialonas. On November 6, 2009, Appellant was tailgating a car

being driven by Chris McCully on Route 45 in Centre County, and Appellant

nearly struck Mr. McCully’s car. When the vehicles entered a passing zone,

Mr. McCully slowed his vehicle so that Appellant could pass it.     Instead,

Appellant continued to closely follow Mr. McCully, and, when the vehicles

arrived at a stop sign, Appellant exited his car, approached Mr. McCully’s

vehicle, and attempted to stab Mr. McCully in the neck with a screwdriver.

Mr. McCully deflected the screwdriver, which scraped his neck and

penetrated his shoulder. The two men struggled, and Appellant threatened

to kill the victim, who managed to fight off Appellant and drive away.

      Based upon this incident, at a nonjury trial, Appellant was convicted

of two counts of aggravated assault (attempting to inflict serious bodily
                       _______________________
(Footnote Continued)

          be relied upon or cited (1) when it is relevant under the
          doctrine of law of the case, res judicata, or collateral
          estoppel, and (2) when the memorandum is relevant to a
          criminal action or proceeding because it recites issues raised
          and reasons for a decision affecting the same defendant in a
          prior action or proceeding. When an unpublished
          memorandum is relied upon pursuant to this rule, a copy of
          the memorandum must be furnished to the other party and
          to the Court.

Pa.Super.Ct. IOP § 65.37. It is clear from the facts averred herein that
Appellant already has copies of these memoranda.




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injury and inflicting bodily injury with a deadly weapon), terroristic threats,

two counts of simple assault, harassment, and careless driving.                    The

matter proceeded to sentencing, where it was revealed that Appellant had

an extensive history of violence, including a prior road-rage incident. The

sentencing court imposed a standard range sentence of seven to fourteen

years    imprisonment.      On    appeal,      we   affirmed,   rejecting   Appellant’s

challenge to the sufficiency of the evidence relating to whether he

attempted to cause serious bodily injury for purposes of the relevant

aggravated assault conviction. Commonwealth v. Earnest, 30 A.3d 534

(Pa.Super. 2011) (unpublished memorandum).

        Appellant thereafter filed a timely pro se PCRA petition, and Mr.

Trialonas was appointed as counsel for purposes of the PCRA matter. The

PCRA court conducted a hearing and then denied relief.                      On appeal,

Appellant argued that the PCRA court erred in failing to find that trial

counsel was ineffective for not conveying a plea offer 2 and not requesting

that Appellant be sentenced on the second count of aggravated assault

rather than the first one. We concluded that the issues were waived due to

the fact a transcription of the PCRA hearing was not contained in the
____________________________________________


2
   Appellees represent that trial counsel testified at that hearing that he did
tell Appellant about the plea offer and that Appellant rejected it against
legal advice. While that testimony is not expressly discussed in the 2013
memorandum, we conclude that it can fairly be implied from the outcome
of the PCRA proceeding at the PCRA court level.



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record.    Commonwealth v. Earnest, 87 A.3d 882 (Pa.Super. 2013)

(unpublished memorandum).

       On August 24, 2015, Appellant instituted this legal malpractice action

against Appellees based upon their representation of him during the PCRA

proceeding. Our review of the pro se complaint indicates that Appellant’s

malpractice case was premised upon Appellees’ failure to obtain a

transcript of the PCRA hearing for purposes of appeal and for neglecting to

investigate unspecified issues that Appellant sought to raise in the PCRA

proceeding.     Appellant did not complete a certificate of merit, but did

attach to his complaint a copy of a letter from the Disciplinary Board of the

Supreme Court of Pennsylvania.3                The letter indicated that Appellees

admitted that they committed an error when they did not have the notes of

testimony from the PCRA hearing transcribed.

       In the present lawsuit, Appellant also sought to proceed in forma

pauperis, and the action was dismissed based upon frivolity. This appeal

followed, and Appellant raises this issue, “Did the Trial Court err in

dismissing [Appellant’s] legal malpractice claim when he properly plead

and established the three (3) elements required?” Appellant’s brief at 4.
____________________________________________


3
    In their brief, Appellees have asked us to strike the letter from the
record, contending that it is confidential. They did not seek such relief in
the trial court so that averment is waived for purposes of appeal. Pa.R.A.P.
302(a). However, Appellees are free to ask the trial court for the same
relief.



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        Initially, we note that Appellees have asked us to quash this appeal

based upon the frivolity of the present lawsuit.           “Quashal is usually

appropriate where the order below was unappealable; . . . the appeal was

untimely, . . . or the Court otherwise lacked jurisdiction[.]” Sahutsky v.

H.H. Knoebel Sons, 782 A.2d 996, 1001 n. 3 (Pa. 2001) (citations

omitted). While Pa.R.A.P. 1972(7) also permits a party to move to quash

“for any other reasons on the record,” Appellees’ motion to quash clearly

relates to the merits of the appeal.            According, quashal is not the

appropriate action by this Court. See id.

        We next observe that both the trial court and Appellees fault

Appellant for failing to file with his complaint a certificate of merit under

Pa.R.C.P. 1042.3.4 However, Appellant had sixty days to file a certificate of

____________________________________________


4
    That rule states in pertinent part:

        (a) In any action based upon an allegation that a licensed
        professional deviated from an acceptable professional standard,
        the attorney for the plaintiff, or the plaintiff if not represented,
        shall file with the complaint or within sixty days after the
        filing of the complaint, a certificate of merit signed by the
        attorney or party that either

              (1) an appropriate licensed professional has supplied
              a written statement that there exists a reasonable
              probability that the care, skill or knowledge
              exercised or exhibited in the treatment, 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...
(Footnote Continued Next Page)


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merit, and this action was dismissed eleven days after it was instituted.

Hence, we decline to affirm based upon application of Pa.R.C.P. 1042.3.

      However, we agree that Appellant did not set forth sufficient facts in

his complaint to support the existence of a legal malpractice case, and that

dismissal based upon Pa.R.C.P. 240(j) was proper. “Our review of a

decision dismissing an action pursuant to Pa.R.C.P. 240(j) is limited to a

determination of whether the plaintiff's constitutional rights have been

violated and whether the trial court abused its discretion or committed an

error of law.” Ocasio v. Prison Health Servs., 979 A.2d 352, 354

(Pa.Super. 2009) (citation omitted). The rule in question states:

      (j)(1) If, simultaneous with the commencement of an action or
      proceeding or the taking of an appeal, a party has filed a petition
      for leave to proceed in forma pauperis, the court prior to acting
      upon the petition may dismiss the action, proceeding or appeal if
      the allegation of poverty is untrue or if it is satisfied that the
      action, proceeding or appeal is frivolous.

Pa.R.C.P. 240(j). An action is considered frivolous if “on its face, it does

not set forth a valid cause of action.” Ocasio, supra, at 354 (citation

omitted).

      To present a viable cause of for legal malpractice, a plaintiff must

establish all of the following: “1) Employment of the attorney or other basis

for a duty; 2) the failure of the attorney to exercise ordinary skill and
                       _______________________
(Footnote Continued)


Pa.R.C.P. 1042.3 (emphasis added).



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knowledge; and 3) that such negligence was the proximate cause of

damage to the plaintiff.” Sokolsky v. Eidelman, 93 A.3d 858, 862

(Pa.Super. 2014) (citation omitted; emphasis added).            A plaintiff’s

damages must be actual rather than nominal and cannot be speculative.

Id.

      Herein, the averments in Appellant’s complaint fell short of setting

forth the elements of a legal malpractice case.       The allegations were

rambling, lacked cohesion, and fatally vague. Critically, Appellant neither

delineated any issue that should have been presented during the PCRA

proceeding nor developed how the issue would have warranted PCRA relief.

While Appellees admittedly did not obtain a copy of the PCRA transcript,

given the outcome of the PCRA proceedings at the PCRA court level, we

draw no inference that Appellant would have prevailed in his appeal from

the denial of PCRA relief had the document been in the record.       Indeed,

Appellant fails to acknowledge that the PCRA court ruled against him after

the hearing, that trial counsel testified that Appellant himself rejected the

plea offer, and that our standard of review in the PCRA context is

deferential to the PCRA court’s rulings.

      On appeal, Appellant once again simply relies upon the fact that

Appellees did not procure a transcript of the PCRA hearing, suggesting that

reversal is warranted solely on that ground.       Appellees’ fault in that

respect, standing alone, does not establish that Appellant would have

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prevailed during his PCRA proceeding.       Appellant does not establish the

existence of actual harm from the omission in question.           We therefore

affirm the trial court’s ruling that Appellant’s lawsuit was frivolous.

      Appellees’ motion to quash the appeal is denied. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2016




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