J-S01003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

____________________________________________


*   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
____________________________________________


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


____________________________________________


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

____________________________________________


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



____________________________________________


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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