J-S17020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    VAMSIDHAR VURIMINDI                        :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DAVID SCOTT RUDENSTEIN,                    :   No. 2520 EDA 2017
    ESQUIRE                                    :

                 Appeal from the Order Entered July 14, 2017
     In the Court of Common Pleas of Philadelphia County Civil Division at
                             No(s): 160503630


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.:                                FILED APRIL 03, 2018

       Vamsidhar Vurimindi, an inmate at SCI-Pine Grove, appeals pro se from

the trial court’s order denying his motion to strike/open a default judgment of

non pros1 in this underlying civil action instituted against his criminal defense

attorney, Appellee David Scott Rudenstein, Esquire. We affirm.

       In April 2014, Vurimindi was convicted and sentenced to 2½ to 5 years’

incarceration and five years of probation for stalking and disorderly conduct.2
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1 Such orders are immediately appealable as of right.        See Pa.R.A.P.
311(a)(1)(orders refusing to open, vacate or strike judgment are appealable
as of right).

218 Pa.C.S. § 2709.1(a)(1); 18 Pa.C.S. § 5503(a)(4). See Commonwealth
v. Vurimindi, CP-51-CR-0008022-2012 (Pa. Ct. Com. Pleas, Philadelphia
County, April 25, 2014). Vurimindi was having disputes with his neighbors
who resided in the Hoopskirt Factory Lofts, located at 309-313 Arch Street in
Philadelphia. Mutual accusations of harassment and invasion of privacy
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In January 2016, the trial court appointed Attorney Rudenstein as Vurimindi’s

Post Conviction Relief Act3 (PCRA) counsel.       Attorney Rudenstein filed an

amended PCRA petition on Vurimindi’s behalf. On May 31, 2016, Vurimindi

filed the instant pro se civil action against Rudenstein alleging bad faith and

conspiracy and seeking a preliminary and permanent injunction ordering

Rudenstein be precluded from representing him in his criminal matter.

       On August 25, 2016, Marc L. Bogutz, Esquire, entered his appearance

for Attorney Rudenstein. On January 13, 2017, Attorney Bogutz filed a notice

of intent to enter judgment of non pros, pursuant to Pa.R.C.P. 1042.7, if

Vurimindi did not file a certificate of merit within 30 days of the filing of the

notice. In response, Vurimindi filed a motion to determine the need to file a

certificate of merit and/or motion to appoint counsel to issue such a certificate.

The court denied Vurimindi’s motion on March 25, 2017, and directed that he

file his certificate of merit within 20 days. Vurimindi requested that the trial

court grant him additional time to file his certificate of merit and/or stay the

civil proceedings until the PCRA court ruled on his petition. On May 3, 2017,

the Honorable Denis P. Cohen entered an order denying Vurimindi’s request

____________________________________________


among Vurimindi and his neighbors led to a private criminal complaint being
filed against Vurimindi, containing allegations of stalking and harassment.
Ultimately the municipal court issued a mutual stay-away order. However,
when Vurimindi failed to comply with the order, the Philadelphia District
Attorney reinstated criminal charges against him, leading to the stalking and
disorderly conduct convictions.

3   See generally 42 Pa.C.S.A. §§ 9541-9546.


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to extend the time within which to file a certificate of merit and to stay the

civil proceedings.

      On May 8, 2017, Attorney Rudenstein praeciped for entry of non pros

for Vurimindi’s failure to file a certificate of merit; the court entered a

judgment of non pros in counsel’s favor on the same day. On June 8, 2017,

Vurimindi filed a motion to strike/open the judgment of non pros; Attorney

Rudenstein filed an opposing motion. The court denied Vurimindi’s motion on

July 14, 2017. Vurimindi filed a timely notice of appeal and court-ordered

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

      On appeal, Vurimindi raises the following issues for our consideration:

      (1) Whether [the] trial court made an error requiring [Vurimindi]
      to file [a] certificate of merit to assert bad faith, civil conspiracy
      and declaratory judgment claims against . . . counsel?

      (2) Whether Pa.R.C.P. 1042.3 is substantive, because Rule 1042.3
      impose[s a] burden of proof at [the] pleading stage, and
      conditioning indigent prisoner plaintiffs’ right to access to court
      upon payment to third party to issue a certificate of merit and
      thereby violate[s] Pa. Const. Art. V § 10(c), U.S. Const. Fifth and
      Fourteenth Amendment’s due process and equal protection
      clauses?

      (3) Whether [the] trial court made an error in denying to appoint
      . . . counsel for [an] indigent prisoner plaintiff to issue a certificate
      of merit to assert bad faith, civil conspiracy and declaratory
      judgment claims?

      (4) Whether [the] trial court made an error in denying to stay
      proceedings until [Vurimindi] obtain[ed] relief from PCRA court
      upon counsel David Scott Rudenstein’s ineffectiveness?

      (5) Whether [the] trial court made an error by failing to extend
      [the] time to file certificate of merit, and failing to compel counsel
      David Scott Rudenstein to produce discovery to allow [Vurimindi]
      to file [a] certificate of merit?

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      (6) Whether [the] trial court made an error by refusing to
      strike/open [the] judgment of non pros?

Appellant’s Pro Se Brief, at 2-3.

      When reviewing the denial of a petition to strike and/or open a judgment

of non pros, a reviewing court will reverse the trial court only if it finds a

manifest abuse of discretion.       Varner v. Classic Cmtys. Corp., 890 A.2d

1068, 1072 (Pa. Super. 2006), citing Hoover v. Davilia, 862 A.2d 591, 593

(Pa. Super. 2004). It is well-established that a motion to strike off a judgment

of non pros challenges only defects appearing on the face of the record and

that such a motion may not be granted if the record is self-sustaining.

Hershey v. Segro, 381 A.2d 478, 479 (Pa. Super. 1977).

      Pursuant to Pennsylvania Rule of Civil Procedure 3051(b), a party may

obtain relief from a judgment of non pros:

      (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(b).

      Instantly, the trial court entered non pros due to Vurimindi’s failure to

file a certificate of merit in his underlying civil action against Attorney

Rudenstein. Vurimindi alleges that his bad faith/civil conspiracy claims against

Rudenstein are based on ordinary negligence, “are within the comprehension

of the trial judge,” and, thus, because this is not a professional liability action,


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he was not required to file a certificate of merit.4 Appellant’s Pro Se Brief, at

23.

       The Pennsylvania Supreme Court has adopted rules governing liability

actions against licensed professionals; a licensed professional includes an

“attorney at law.” Sabella v. Milides, 992 A.2d 180, 186 (Pa. Super. 2010).

Pennsylvania Rule of Civil Procedure 1042.3 provides that in an action based

on an allegation that a licensed professional deviated from an acceptable

professional standard, a plaintiff shall file a certificate of merit with the

complaint or within 60 days after the filing of the complaint. Pa.R.C.P. 1042.3.

The certificate certifies that another appropriate licensed professional has

supplied a written statement that there is a basis to conclude that the care,

skill, or knowledge exercised or exhibited by the defendant 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. Rule 1042.7 provides that “[t]he prothonotary, on praecipe of the

defendant, shall enter a judgment of non pros against the plaintiff” if no

certificate has been filed, there is no pending motion for determination as to

whether a certificate is required, and there is no outstanding motion for

extension. Pa.R.C.P. 1042.7(a) (emphasis added).




____________________________________________


4Even if Vurimindi believed that he could proceed in his civil action in the
absence of an expert opinion, he was still required to submit a certificate of
merit alleging same. See Pa.R.C.P. 1042.3(a)(3).

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      Rule 1042.3(a) also requires that an unrepresented plaintiff, like

Vurimindi, file a certificate of merit and supporting written statement. Thus,

a lack of understanding of Rule 1042.3 will not justify a litigant’s

noncompliance with its requirements. Hoover, supra; see also Womer v.

Hilliker, 908 A.2d 269, 271 (Pa. 2006) (party’s “wholesale failure” to comply

with the requirements of Rule 1042.3 cannot be overlooked).

      A plaintiff is not excused from filing a certificate of merit merely because

he or she “fails to expressly indicate in [his or her] complaint that [he or she]

is asserting a professional liability claim . . . when, in substance, the plaintiff

is actually asserting a professional liability claim.”       Varner v. Classic

Communities Corp., 890 A.2d 1068, 1074 (Pa. Super. 2006). “[I]t is the

substance of the complaint rather than its form which controls whether the

claim against a professionally licensed defendant sounds in . . . professional

malpractice.” Id. Two questions are involved in determining whether a claim

alleges ordinary negligence as opposed to professional negligence: (1)

whether the claim pertains to an action that occurred within the course of a

professional relationship; and (2) whether the claim raises questions of

professional judgment beyond the realm of common knowledge and

experience.” Merlini ex rel. Merlini v. Gallitzin Water Authority, 934 A.2d

100, 104-105 (Pa. Super. 2007), aff’d, 980 A.2d 502 (Pa. 2009)). To

ascertain the plaintiff's theory of liability, courts must examine the averments

in the complaint. Id. at 105.




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      Here,   there   is   no   question   that   Vurimindi’s   complaint   alleges

professional negligence. First, the allegations are based upon his attorney-

client relationship with Attorney Rudenstein in his pending PCRA matter. See

also Cost v. Cost, 677 A.2d 1250 (Pa. Super. 1996) (attorney-client or

analogous professional relationship is necessary element to maintain action in

negligence for medical malpractice). The claims involve actions that occurred

within the course of the PCRA proceedings and raise questions regarding

court-appointed PCRA counsel’s professional judgment.

      Second, the allegations in the complaint raise questions of Rudenstein’s

professional judgment that are beyond the realm of common knowledge and

experience.   Specifically, the complaint alleges that Rudentstein:         did not

inform him when he entered his appearance; did not attempt to communicate

with him regarding facts and errors that happened during his criminal trial;

failed to amend his PCRA petition to include Vurimindi’s 484 issues that

included ineffectiveness of prior counsel; did not litigate a motion to compel;

did not withdraw from representation when their attorney-client relationship

broke down; had a duty to act in good faith and be loyal to him as his client;

had a conflict of interest; violated his due process rights by delaying the PCRA

process; denied him of his right to effective counsel; and should have ceased

representation of him.     Vurimindi Complaint, 5/31/16, at ¶¶ 21-49.         Such

claims require expert testimony. See Storm v. Golden, 538 A.2d 61 (Pa.

Super. 1988) (where malpractice action involves complex legal claim of breach

of duty or attorney’s choice of trial tactics, it is requires expert testimony).

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       Despite the terminology Vurimindi may employ in his civil complaint, the

allegations all arise from a purported deviation from an acceptable

professional standard of care. Kituskie v. Corbman, 714 A.2d 1027, 1029

(1998) (to maintain cause of action in negligence for legal professional

malpractice, complainant must demonstrate: 1) employment of attorney or

other basis for duty; 2) failure of attorney to exercise ordinary skill and

knowledge; and 3) such negligence was proximate cause of damage to

plaintiff).   Accordingly, Vurimindi was required to comply with Rule 1042.3

and file a timely certificate of merit. Because he failed to do this, the court

properly denied his motion to open/strike off the non pros. See Pa.R.C.P.

3051 (judgment shall be opened if petitioner alleges reasonable explanation

or legitimate excuse for inactivity or delay and facts showing meritorious

cause of action).

       Next, Vurimindi categorizes Rule 1042.3 as a substantive rule that

discriminates against him based on his economic status as a prisoner.

Specifically, he asserts that because Rule 1042.3 requires an indigent

prisoner5 pay for a certificate of merit at the pleading stage of a case, his

economic status prevents him from access to court, in violation of Article 5,
____________________________________________


5 We note that on May 31, 2016, the trial court entered an order permitting
Vurimindi to proceed without paying the costs of the proceeding; to obtain
service of the papers filed without costs; to proceed in forma pauperis as to
any additional costs which accrue in the course of the proceeding; and, if he
is successful in the action and recovers a monetary judgment or settlement,
all exonerated fees and costs shall be taxed as costs and paid to the office of
judicial records by the opposing party.


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Section 10(c) of the Pennsylvania Constitution and the 5th and 14th

Amendments to United States Constitution.        In short, he deems the rule

unconstitutional as applied to him. See Vurimindi’s Motion to Determine Need

for Certificate of Merit, 2/15/17, at ¶ 36.    Pennsylvania Rule of Appellate

Procedure 522 requires “a party who draws in question the constitutionality of

any general rule to give notice in writing to the Court Administrator of

Pennsylvania.” Pa.R.A.P. 522(a). Failure to do so results in wavier of the

issue on appeal. Havelka v. Sheraskey, 441 A.2d 1255 (Pa. Super. 1982).

Here, Vurimindi has not provided such notice; thus, we find his claim waived.

      Vurimindi next asserts that the trial court erred in denying his request

for counsel.   It is well-established that a litigant does not have a right to

counsel in a civil matter. May v. Sharon, 546 A.2d 1256, 1259 (1988) (no

constitutional or statutory right to appointment of counsel in private

litigation). Thus, this claim is meritless.

      In addition, we find no merit to Vurimindi’s claim that the court erred in

denying his request for an extension within which to file a certificate of merit.

Under Rule 1042.3(d), a court upon good cause shown shall extend the time

for filing a certificate of merit for a period not to exceed 60 days. Pa.R.C.P.

1042.3. Instantly, Vurimindi had been given almost an entire year to file a

certificate of merit (from the date that he filed his civil complaint until the

court entered non pros).      In fact, due to his protracted, baseless pro se

motions, Vurimindi received, in essence, a four-month extension to file his

certificate. Under such circumstances, we do not find that the court abused

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its discretion in denying his extension request where it found that he had not

shown good cause. Pa.R.C.P. 1042.3(d).

      Vurimindi next asserts that the court erred in failing to compel Attorney

Rudenstein to produce discovery to allow him to file a certificate of merit.

Specifically, Vurimindi claims that without Attorney Rudenstein’s answers to

interrogatories and certain requested documents, he is unable to have an

attorney review the necessary records to determine the validity of his legal

malpractice claim. The record reveals that Attorney Rudenstein sent Vurimindi

the contents of his file in the PCRA matter, including the amended petition he

filed on his behalf. Letter from David S. Rudenstein, Esquire, to Vamsidhan

Vurimindi, 1/5/17.    Moreover, pursuant to Rule 1042.5, “[e]xcept for the

production of documents and things or the entry upon property for inspection

and other purposes, a plaintiff who has asserted a professional liability claim

may not, without leave of court, seek any discovery with respect to that claim

prior to the filing of a certificate of merit.” Pa.R.C.P. 1042.5. Here, Vurimindi’s

failure to file a certificate of merit superseded any request for discovery from

Attorney Rudenstein. Failure to file the certificate is fatal to Vurimindi’s case;

he must comply with the requirements of rule 1042.3 regardless of discovery.

See Pa.R.C.P. 1042.5.

      Finally, Vurimindi claims that the trial court erred in denying his motion

to stay the instant civil action until his PCRA petition was ruled upon.

Specifically, he alleges that he is unable to state a legal malpractice claim

against Attorney Rudenstein because he did not first exhaust his post-trial

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remedies and obtain relief dependent upon trial counsel[’]s errors.”

Appellant’s Brief, at 41-42. We disagree. By permitting Vurimindi’s criminal

matter to proceed, the court did not put him at any greater risk of failing to

state a civil claim in his professional negligence action. Rather, Vurimindi’s

own nonfeasance, by failing to file a certificate of merit, foreclosed any

potential civil claim he may have had against Attorney Rudenstein.

       Order affirmed.6

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/18




____________________________________________


6 We herein deny Vurimindi’s application to strike the portions of Attorney
Rudenstein’s reproduced record that contains copies of the notes of testimony
from Vurimindi’s trial and PCRA proceedings.

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