J-S73031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STANLEY FOSTER BOWERSOX, III                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

WILLIAM J. HATHAWAY

                            Appellee                 No. 357 WDA 2016


               Appeal from the Order Entered February 19, 2016
                 in the Court of Common Pleas of Erie County
                      Civil Division at No(s): 10093-2016


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED OCTOBER 25, 2016

        Stanley Foster Bowersox, III (“Appellant”) appeals from the order of

the Erie County Court of Common Pleas entered February 19, 2016,

sustaining the preliminary objection in the form of a demurrer filed by his

Post Conviction Relief Act (“PCRA”)1 counsel, William Hathaway, Esquire

(“Appellee”), in response to Appellant’s complaint seeking a preliminary

injunction, and dismissing Appellant’s complaint.    After careful review, we

affirm.

        The unique facts and procedural history of this matter are as follows.

In August 2012, Appellant and a co-defendant perpetrated a vicious and

premeditated robbery and beating of a victim who had been making

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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unwanted romantic overtures on Facebook towards Appellant’s girlfriend, as

well as a Good Samaritan who had come to the unsuspecting victim’s aid.

As a result of these crimes, on May 15, 2013, a jury found Appellant guilty

of one count each of robbery and conspiracy to commit robbery, two counts

each of aggravated assault and conspiracy to commit aggravated assault,

and two counts of simple assault.              On June 24, 2013, the trial court

sentenced Appellant to 162 to 324 months’ incarceration followed by 10

years’ probation.       This Court affirmed Appellant’s criminal conviction on

January 30, 2015.        See Commonwealth v. Bowersox, 1283 WDA 2013

(unpublished memorandum).

       On November 12, 2015, Appellant filed a timely pro se petition for

post-conviction relief2 and requested appointment of counsel. On November

17, 2015, the PCRA court appointed Appellee to represent Appellant and

provided Appellee 60 days to file a supplementary petition.

       On November 19, 2015, Appellant sent Appellee a letter expressing

reservations about Appellee’s representation based on information gleaned

from conversations with other individuals in prison for whom the court had

appointed Appellee to act as counsel in the past. See Appellant’s Letter to


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2
  Appellant’s PCRA petition raises a discretionary aspect of sentence claim, a
sufficiency of the evidence claim, and a weight of the evidence claim, none
of which are cognizable under the PCRA. See Pro Se PCRA Petition, pp. 2-3.
Additionally, this Court previously denied Appellant’s sufficiency of the
evidence claim on direct appeal. See Bowersox, supra.



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Appellee, November 19, 2015.            Not pleased with communication between

himself and Appellee, on December 18, 2015, prior to the expiration of the

60 days the court had granted Appellee to file an amended PCRA petition, 3

Appellant filed a motion for change of appointed counsel. The PCRA court

denied Appellant’s motion on December 21, 2015.

       Appellant appealed the denial of his motion to change appointed

counsel to this Court on January 11, 2016, and on January 22, 2016, filed a

concise statement of matters complained of on appeal alleging that the PCRA

court erred in denying Appellant’s requested change of appointed counsel.

See Commonwealth v. Bowersox, 158 WDA 2016. This appeal remains

outstanding. Id.

       On January 14, 2016, three days after the filing of the notice of appeal

in the PCRA matter, Appellant filed the instant civil action seeking a

preliminary injunction regarding Appellee’s prosecution of the PCRA matter.

See Complaint.       Based on Appellee’s alleged “general reputation of taking

little to no action on behalf of his court-appointed clients”4 and his failure to

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3
  Appellee filed an amended PCRA petition on Appellant’s behalf on January
13, 2016 incorporating Appellant’s claims and raising numerous claims of
ineffective assistance of counsel related to trial counsel’s actions or
omissions at trial. See generally Supplement to Motion for Post Conviction
Relief, filed January 13, 2016.
4
  See Complaint, p. 2; see also Appellant’s Letter to Appellee, November
19, 2015, pp. 1-2 (expressing Appellant’s concern regarding Appellee’s
representation based on prior, unrelated cases).



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reply to Appellant’s prior correspondence, Appellant’s civil action seeks the

ability to direct Appellee’s actions regarding all specifics of the prosecution of

Appellant’s PCRA petition, including making specific decisions that Appellee

ordinarily would make using his independent judgment as counsel.5            See

Complaint, pp. 2-5.
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5
    Specifically, Appellant’s complaint asks the trial court to:

        (1) enter a preliminary and permanent injunction

           (a) requiring [Appellee] to provide [Appellant] with the
           information as requested by [Appellant] within his
           correspondence of November 19, 2015 so as to allow
           [Appellant] to make a []knowing, intelligent and/or
           otherwise informed decision of how to proceed, whether
           under the representation of [Appellee], under the
           representation of different legal counsel, or with no
           counsel at all;

           (b) enjoining [Appellee] from requesting and/or otherwise
           consenting to judicial extensions of time to file a
           supplemental PCRA petition on [Appellant’s] behalf without
           consulting with or otherwise obtaining [Appellant’s]
           informed consent;

           (c) enjoining [Appellee] from advancing legal claims on
           [Appellant’s] behalf in addition to those expressly
           authorized by [Appellant] without consulting with or
           otherwise obtaining [Appellant’s] informed consent;

           (d) enjoining [Appellee] from withdrawing legal claims as
           advanced by [Appellant] without consulting with or
           otherwise obtaining [Appellant’s] informed consent; and

           (e) enjoining [Appellee] from disclosing any opinion or
           information as to the relative strengths and/or weaknesses
           of [Appellant’s] legal claims without consulting with or
           otherwise obtaining [Appellant’s] informed consent;
(Footnote Continued Next Page)


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        After reviewing the nature of the relief sought in Appellant’s complaint,

the Erie County Court of Common Pleas’ Civil Division reassigned the matter

to the Criminal Division, specifically to the PCRA court.           Appellee filed a

preliminary objection in the form of a demurrer alleging that there is no

basis for the relief sought by Appellant.         On February 19, 2016, the court

granted     Appellee’s      preliminary     objection   and   dismissed   Appellant’s

complaint.

        Appellant filed a notice of appeal on March 4, 2016.         The trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a)6 on March 7, 2016.

        Appellant raises the following claim for our review:

        I. Whether the lower court erred as a matter of law and/or
        abused its discretion in dismissing Appellant’s complaint in
        equity and motion for preliminary injunction without a hearing
        where:

           (i) The lower court’s order was entered on the very same
           date Appellee’s preliminary objection and motion to
           dismiss were filed, (i.e. February 19, 2016), and without
           notice and opportunity for Appellant to file a responsive
           pleading;

           (ii) Appellee’s preliminary objections and motion to dismiss
           failed to comply with law or rule of court in that, despite
                       _______________________
(Footnote Continued)

        (2) award[ Appellant] costs of this action; and

        (3) grant[ Appellant] such other and further relief as [Appellant]
        may show to be entitled and/or which this Honorable Court
        deems just, proper and equitable under the circumstances.

Complaint, p. 5.
6
    The court termed its opinion an “order”. See Order, March 7, 2016.



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          containing averments of fact not appearing of record,
          Appellee’s motion to dismiss and preliminary objections
          failed to contain a verification as required by Pa.R.Civ.P.
          1024(a) stating that the averments as contained therein
          were true based upon Appellee’s personal knowledge or
          information; and

          (iii) Contrary to the skewed averments of Appellee’s
          motion to dismiss and preliminary objections, the
          averments of Appellant’s complaint in equity and motion
          for preliminary injunction stated sufficient facts which, if
          proven, would entitle Appellant to relief in the form of
          preliminary and/or permanent injunctive relief.

Appellant’s Brief, p. 4 (all capitals omitted).

      Appellant   claims   the   trial   court    erred   by   granting   Appellee’s

preliminary objections and dismissing his complaint. We disagree.

      In determining whether the trial court properly sustained
      preliminary objections, the appellate court must examine the
      averments in the complaint, together with the documents and
      exhibits attached thereto, in order to evaluate the sufficiency of
      the facts averred. The impetus of our inquiry is to determine the
      legal sufficiency of the complaint and whether the pleading
      would permit recovery if ultimately proven. This Court will
      reverse the trial court’s decision regarding preliminary objections
      only where there has been an error of law or abuse of discretion.
      When sustaining the trial court’s ruling will result in the denial of
      claim or a dismissal of suit, preliminary objections will be
      sustained only where the case is free and clear of doubt.

Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071, 1073 (Pa.Super.2004)

(quoting Clemleddy Const., Inc. v. Yorston, 810 A.2d 693, 696

(Pa.Super.2002)). “When no issues of fact are raised, the court shall dispose

of the preliminary objections as a matter of law on the basis of the pleadings

alone.”    R.M. v. J.S., 20 A.3d 496, 508–09 (Pa.Super.2011) (quoting

Matter of D.L.S., 420 A.2d 625, 626 (Pa.Super.1980)).



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      In granting Appellee’s preliminary objections and dismissing this

matter, the trial court explained:

      Upon review of the matter, this [c]ourt sua sponte granted
      [Appellee’s] [p]reliminary [o]bjection because there is no basis
      for the preliminary injunction requested by [Appellant]. Notably,
      [Appellee] as appointed counsel for [Appellant] at all times
      retains the ability to exercise his own independent legal
      judgment in representing [Appellant].         Further, [Appellant]
      cannot demonstrate any irreparable harm. The request for a
      preliminary injunction was an obvious attempt to circumvent the
      denial of his request for new counsel [in the PCRA matter].

Trial Court Pa.R.A.P. 1925(a) Opinion, March 7, 2016, p. 2.

      After thoroughly reviewing the record in this matter, we agree with the

trial court’s assessment that Appellant’s civil action is merely an attempt to

circumnavigate the denial of his request for new counsel in his PCRA matter,

and that he has failed to state a cause of action. Accordingly, we affirm the

trial court’s order granting the preliminary objections and dismissing the

complaint.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




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