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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MICHELLE ROBINSON,                     :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                        Appellant      :
                                       :
                   v.                  :
                                       :
CHRISTOPHER COYLE AND                  :          No. 700 MDA 2014
HENRY & BEAVER, LLP                    :


                    Appeal from the Order, March 21, 2014,
               in the Court of Common Pleas of Lebanon County
                        Civil Division at No. 2012-01096


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 28, 2015

     Michelle Robinson appeals, pro se, from the order of March 21, 2014,

granting defendants/appellees’ motion for judgment on the pleadings and

dismissing appellant’s complaint with prejudice. We affirm.

     On October 5, 2010, a jury convicted appellant of disorderly conduct,

and she was sentenced to one year of probation. Appellant was found not

guilty of recklessly endangering another person and criminal conspiracy.

The charges were brought in connection with an incident on August 30,

2009, wherein appellant and her co-defendant, Anne Coyle, were spraying

water across the roadway next to their property, disrupting traffic.

Apparently, appellant and Coyle were upset about excessive noise from

passing motorcycles. The underlying facts of this matter were recounted in
J. A34009/14


detail in this court’s memorandum disposing of appellant’s direct appeal.

Commonwealth v. Robinson, 64 A.3d 14 (Pa.Super. 2012) (unpublished

memorandum), appeal denied, 72 A.3d 602 (Pa. 2013).

     On December 10, 2012, this court affirmed the judgment of sentence,

finding, inter alia, that the evidence was sufficient to sustain appellant’s

conviction of disorderly conduct.   Appellant’s petition for reargument was

denied.   Appellant filed a petition for allowance of appeal with the

Pennsylvania Supreme Court, which was denied on July 24, 2013. Appellant

also filed a federal habeas corpus petition, which was dismissed on

August 11, 2014, on the basis that appellant was not “in custody” for

purposes of invoking federal habeas jurisdiction where, at the time she filed

her petition, she was no longer subject to the terms of her probation.

Robinson v. Barry, 2014 WL 3908291 (M.D.Pa. 2014).

     On June 4, 2012, appellant initiated the instant action by writ of

summons filed in Lebanon County and served on the defendants/appellees,

Christopher Coyle and Henry & Beaver, LLP, at their place of business. On

July 12, 2012, upon praecipe filed by appellees, appellant filed her

complaint, alleging legal malpractice committed by appellees in connection

with their representation of her during the 2009 criminal matter.

     On July 18, 2012, appellant filed motions for recusal and for change of

venue to Philadelphia. These motions were denied on November 1, 2012.

Appellant’s motion for sanctions was also denied.      Following preliminary



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objections to the complaint filed by appellees, appellant filed a motion for

leave to amend the complaint which was granted on January 10, 2013.

Appellant filed an amended complaint on January 29, 2013, bringing claims

of professional negligence and forgery.          The forgery claim related to

appellant’s allegation that Attorney Coyle had forged her name on a defense

continuance motion, thereby thwarting her ability to pursue a dismissal

under Pa.R.Crim.P. 600, the speedy trial rule.

      On February 7, 2013, appellees filed preliminary objections to the

amended complaint.     Both parties submitted briefs and appeared at oral

argument on May 1, 2013. Appellant filed an ADA accommodation request

for a court stenographer during the May 1, 2013 argument which was

granted.   On July 3, 2013, the trial court issued an order staying the

proceedings pending resolution of appellant’s petition for allowance of appeal

in the underlying criminal case. As stated above, that petition was denied

on July 24, 2013. On August 9, 2013, the trial court sustained appellees’

preliminary objection in the nature of a demurrer to appellant’s claim of

negligence, and dismissed Count 1 of the amended complaint.          The trial

court found that under Bailey v. Tucker, 621 A.2d 108 (Pa. 1993),

governing actions in criminal malpractice, appellant was unable to plead a

legally sufficient claim of professional negligence.    Appellant’s motion for

reconsideration was denied.




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      On September 3, 2013, appellees filed an answer and new matter to

the amended complaint.     On September 17, 2013, appellant filed a reply.

Appellees filed a motion for judgment on the pleadings on October 16, 2013,

and, pursuant to local rule, a praecipe for disposition on December 5, 2013.

On March 21, 2014, the trial court granted appellees’ motion for judgment

on the pleadings and dismissed the matter with prejudice, finding that there

is no civil action for forgery.    The trial court also rejected appellant’s

argument    that   she   should   be    permitted   to   substitute   fraudulent

misrepresentation for forgery in Count 2, finding that while fraudulent

misrepresentation is a recognized civil cause of action in Pennsylvania,

appellant’s allegations in her amended complaint did not make out a

prima facie case of fraudulent misrepresentation.        In addition, the trial

court stated that it would not be inclined to permit appellant to file a second

amended complaint, where she would still be unable to set forth a viable

claim for fraudulent misrepresentation.

      Appellant filed a timely notice of appeal on April 17, 2014. Appellant

was not ordered to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; however,

apparently she filed one anyway, listing nine separate claims of error. (Trial

court opinion, 5/13/14 at 2.)     On May 13, 2014, the trial court filed a

supplemental Rule 1925(a) opinion.




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      Appellant’s issues on appeal may be summarized as follows:         1) the

trial court erred in dismissing her legal malpractice claim; 2) the trial court

erred in dismissing her amended complaint where she made out all the

elements of fraudulent misrepresentation, although Count 2 was actually

titled “forgery”; 3) the trial court erred in denying her motion for recusal;

and 4) the trial court erred in denying her request for a transcript of the

May 1, 2013 oral argument on appellees’ preliminary objections.        None of

these issues has merit.

      Initially, we address appellees’ contention that the appeal should be

quashed for the numerous defects in appellant’s brief and reproduced

record.   (Appellees’ brief at 14-17.)         For example, appellant includes

documents in the reproduced record that are not in the certified record; her

89-page brief does not contain a certification that the brief complies with the

word count limits as required by the Rules of Appellate Procedure; her brief

does not contain appropriate citations to the record; and she failed to attach

her   Rule     1925(b)    statement     to     her   brief   as   required   by

Pa.R.A.P. 2111(a)(11).

      “This Court ‘is willing to liberally construe materials filed by a pro se

appellant’; however, [appellant] is not entitled to special treatment by virtue

of the fact that he ‘lacks legal training.’”    Commonwealth v. Maris, 629

A.2d 1014, 1017 n.1 (Pa.Super. 1993), quoting O’Neill v. Checker Motors

Corp., 567 A.2d 680, 682 (Pa.Super. 1989). See also Commonwealth v.



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Lyons, 833 A.2d 245, 252 (Pa.Super. 2003), appeal denied, 879 A.2d 782

(Pa. 2005) (“a pro se litigant must comply with the procedural rules set

forth in the Pennsylvania Rules of the Court.       This Court may quash or

dismiss an appeal if an appellant fails to conform with the requirements set

forth in the Pennsylvania Rules of Appellate Procedure.”) (citations omitted).

Nevertheless, we find that the defects in appellant’s brief do not prevent this

court from conducting meaningful review of the issues on appeal; therefore,

we decline to quash the appeal, however, no consideration will be given to

materials not a part of the certified record.

      First, we address the order of August 9, 2013, granting appellees’

preliminary objection in the nature of a demurrer and dismissing appellant’s

negligence claim, pleaded as Count 1 of the amended complaint. The trial

court found that appellant was unable to plead a legally sufficient claim of

professional negligence; in particular, that she could not establish the fifth

element of criminal legal malpractice required by Bailey, the successful

pursuit of post-trial relief dependent upon attorney error.

            Our scope of review is plenary when reviewing a trial
            court’s order sustaining preliminary objections in the
            nature of a demurrer. See Glassmere Fuel Serv.,
            Inc. v. Clear, 900 A.2d 398, 401 (Pa.Super. 2006).
            “In order to determine whether the trial court
            properly sustained Appellee’s preliminary objections,
            this court must consider as true all of the well-
            pleaded material facts set forth in the complaint and
            all reasonable inferences that may be drawn from
            those facts.” Id. at 402. In conducting appellate
            review, preliminary objections may be sustained by
            the trial court only if the case is free and clear of


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          doubt. See Knight v. Northwest Sav. Bank, 747
          A.2d 384, 386 (Pa.Super. 2000).

Wheeler v. Nationwide Mut. Fire Ins. Co., 905 A.2d 504, 505 (Pa.Super.

2006), appeal denied, 916 A.2d 1103 (Pa. 2007).

          [A] plaintiff seeking to bring a trespass action
          against a criminal defense attorney, resulting from
          his or her representation of the plaintiff in criminal
          proceedings, must establish the following elements:

          (1)   The employment of the attorney;

          (2)   Reckless or wanton disregard of the
                defendant’s interest on the part of the
                attorney;

          (3)   the attorney’s culpable conduct was the
                proximate cause of an injury suffered by
                the defendant/plaintiff, i.e., “but for” the
                attorney’s    conduct,    the    defendant/
                plaintiff would have obtained an aquittal
                or   a     complete   dismissal     of   the
                charges.[Footnote 12]

                   [Footnote 12]     The     defendant/
                   plaintiff  must      prove    by   a
                   preponderance of the evidence that
                   he did not commit any unlawful
                   acts with which he was charged as
                   well as any lesser offenses included
                   therein.   Resolving this question
                   will perhaps cause the greatest
                   consternation. However, the only
                   one way to protect the integrity of
                   the system is to permit the
                   attorney to introduce whatever
                   evidence that impacts on the
                   defendant/plaintiff’s entitlement to
                   compensation. Such evidence can
                   include any and all confidential
                   communications,       as    well  as



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                   otherwise suppressible evidence of
                   factual guilt.

          (4)   As a result of the injury, the criminal
                defendant/plaintiff suffered damages.

          (5)   Moreover, a plaintiff will not prevail in an
                action in criminal malpractice unless and
                until he has pursued post-trial remedies
                and obtained relief which was dependent
                upon attorney error; [Footnote 13]
                additionally, although such finding may
                be introduced into evidence in the
                subsequent action it shall not be
                dispositive of the establishment of
                culpable conduct in the malpractice
                action.[Footnote 14]

                   [Footnote 13] This requirement
                   does not, however, relieve the
                   plaintiff of his duty to initiate this
                   cause of action within the statute
                   of limitations period as hereinafter
                   discussed, but it does raise a
                   procedural question, to wit: what is
                   to be done with a civil action filed
                   prior to the completion of the post-
                   conviction process? The answer is
                   that an attorney defendant who is
                   served with a complaint alleging
                   professional malpractice for the
                   handling of a criminal matter may
                   interpose a preliminary objection
                   on the grounds of demurrer. See
                   Pa.R.C.P. No. 1017(b)(4). The trial
                   court shall then reserve its ruling
                   on    said    objection   until    the
                   resolution of the post-conviction
                   criminal proceedings.

                   [Footnote 14] In this regard we
                   wish to emphasize that a finding of
                   ineffectiveness is not tantamount
                   to a finding of culpable conduct.


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Bailey, 621 A.2d at 114-115.

            The new, more rigorous pleading requirements of
            Bailey are designed to serve numerous purposes.
            By reducing the threat of subsequent malpractice
            liability, criminal defense attorneys will be better
            able to represent their clients fearlessly and
            independently; they will be less likely to compromise
            their professional judgment and cater to their clients’
            potentially unwise demands. Qualified and capable
            attorneys will not be discouraged from engaging in
            criminal defense work. Also, public policy should not
            allow an actually guilty defendant to profit from his
            crime by attacking peripherally negligent aspects of
            his defense attorney’s performance. The heightened
            pleading     standards    also  discourage    frivolous
            litigation,   while   leaving  intact    the   criminal
            defendant’s access to other systemic remedies, such
            as appeals and post-conviction proceedings.

Hill v. Thorne, 635 A.2d 186, 190-191 (Pa.Super. 1993), citing Bailey, 621

A.2d at 112-113.

      As stated above, this court affirmed appellant’s judgment of sentence

on December 10, 2012, finding the evidence sufficient to sustain the guilty

verdict.    Specifically, we found that the evidence demonstrated that

appellant   recklessly   disregarded    a    risk   of   public   inconvenience.

Commonwealth       v.    Robinson,     No.   1992    MDA    2010,   unpublished

memorandum at 9 (Pa.Super. filed December 10, 2012).              The jury could

reasonably conclude that appellant set the hose in order to discourage

passing motorcyclists.    Id. at 8.    In addition, an off-duty police officer

brought appellant’s attention to the fact that the hose was spraying water

across the roadway and appellant did nothing to correct the situation until


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after being ordered to do so by uniformed police. Id. “Thus, appellant was

aware of the dangerous situation arising from her property and recklessly

refused to immediately correct it.” Id. at 8-9. Appellant filed a petition for

allowance of appeal with the Pennsylvania Supreme Court, which was denied

on July 24, 2013. Therefore, appellant’s conviction is now final. Appellant

cannot meet the third element required in Bailey; i.e., that she did not

commit any of the unlawful acts with which she was charged.             Appellant

cannot prove that “but for” the allegedly negligent acts of her attorneys, she

would have obtained an acquittal.       As a matter of public policy, a guilty

plaintiff cannot collect damages in a criminal malpractice trespass action.

See Bailey, 621 A.2d at 113 (“First, as for the possibility of a defendant

actually profiting from his crime, we require that as an element to a cause of

action in trespass against a defense attorney whose dereliction was the sole

proximate cause of the defendant’s unlawful conviction, the defendant must

prove that he is innocent of the crime or any lesser included offense.”).1


1
  We may affirm for a reason other than that relied upon by the trial court.
Gerace v. Holmes Protection of Philadelphia, 516 A.2d 354 (Pa.Super.
1986), allocatur denied, 527 A.2d 541 (Pa. 1987). As stated above, the
trial court relied on the fifth element of Bailey, the successful pursuit of
post-trial relief dependent upon attorney error. We observe that Bailey was
decided prior to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which
held that, ordinarily, claims of trial counsel ineffectiveness must be deferred
until collateral review. When Bailey was handed down, the old “Hubbard
rule” was still in effect, that any claims of trial counsel ineffectiveness had to
be brought at the first available opportunity to avoid waiver, i.e., when the
defendant had new counsel. Commonwealth v. Hubbard, 372 A.2d 687
(Pa. 1977); Commonwealth v. Dancer, 331 A.2d 435 (Pa. 1975).
Appellant is no longer eligible for PCRA relief, where she is no longer serving


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      We now turn to the March 21, 2014 order granting appellees’ motion

for judgment on the pleadings. Appellant argues that she should have been

permitted   to   amend   her   complaint      to   add   a   count   for   fraudulent

misrepresentation.

            Our scope of review on an appeal from the grant of
            judgment on the pleadings is plenary. Meehan v.
            Archdiocese of Philadelphia, 870 A.2d 912, 918
            (2005).     Entry of judgment on the pleadings is
            permitted under Pennsylvania Rule of Civil Procedure
            1034, which provides that “after the pleadings are
            closed, but within such time as not to unreasonably
            delay trial, any party may move for judgment on the
            pleadings.”     Pa.R.C.P. 1034(a).     A motion for
            judgment on the pleadings is similar to a demurrer.
            Citicorp North America, Inc. v. Thornton, 707
            A.2d 536, 538 (Pa.Super.1998). It may be entered
            when there are no disputed issues of fact and the
            moving party is entitled to judgment as a matter of
            law. Id. In determining if there is a dispute as to
            facts, the court must confine its consideration to the



a sentence. See Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa.
1997) (“To be eligible for relief a petitioner must be currently serving a
sentence of imprisonment, probation or parole.”) (emphasis in original);
42 Pa.C.S.A. § 9543(a)(1)(i). In addition, the so-called “short sentence”
exception to the Grant rule has been disapproved. See Commonwealth v.
O’Berg, 880 A.2d 597 (Pa. 2005) (short sentence did not warrant exception
to general rule announced in Grant precluding consideration of
ineffectiveness of counsel claims on direct appeal). As a practical matter,
the only way for a plaintiff in appellant’s position to satisfy the fifth element
of Bailey in the post-Grant landscape would be to waive his PCRA rights.
See Commonwealth v. Holmes, 79 A.3d 562, 578 (Pa. 2013) (recognizing
a “good cause/PCRA waiver” exception to the Grant rule, which applies
where the defendant demonstrates good cause for unitary review of multiple
or prolix ineffectiveness claims on direct appeal, including non-record based
claims, and expressly and knowingly waives his right to seek subsequent
PCRA review). An example of “good cause” would be where the defendant is
serving a sentence so short as to be unlikely to have the opportunity to seek
collateral review of his conviction. Id.


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            pleadings and relevant documents. Id. On appeal,
            we accept as true all well-pleaded allegations in the
            complaint. Meehan, supra.

                  On appeal, our task is to determine whether
            the trial court’s ruling was based on a clear error of
            law or whether there were facts disclosed by the
            pleadings which should properly be tried before a
            jury or by a judge sitting without a jury. Citicorp,
            supra.

                  Neither party can be deemed to have
                  admitted either conclusions of law or
                  unjustified inferences.      Moreover, in
                  conducting its inquiry, the court should
                  confine itself to the pleadings themselves
                  and any documents or exhibits properly
                  attached to them. It may not consider
                  inadmissible evidence in determining a
                  motion for judgment on the pleadings.
                  Only when the moving party’s case is
                  clear and free from doubt such that a
                  trial would prove fruitless will an
                  appellate court affirm a motion for
                  judgment on the pleadings.

            Kelly v. Nationwide Insurance Company, 414
            Pa.Super. 6, 606 A.2d 470, 471-72 (1992)
            (quotations and citations omitted).

Consolidation Coal Co. v. White, 875 A.2d 318, 325-326 (Pa.Super.

2005).

      In Count 2 of her amended complaint, appellant brought a claim for

forgery. The crime of forgery is codified in the Crimes Code at 18 Pa.C.S.A.

§ 4101. As the trial court states, there is no private civil cause of action for

forgery. (Trial court opinion, 3/21/14 at 5.) In her brief in support of her

response to appellees’ motion for judgment on the pleadings, appellant



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sought permission to file a second amended complaint, substituting

“fraudulent misrepresentation” for “forgery” as the heading of Count 2. (Id.

at 9.) However, appellant never actually filed a motion for leave to amend.

(Id.) In its opinion of August 9, 2013, the trial court noted that, “Although

this Court is unaware of a civil cause of action for “forgery,” pleaded as

Count 2 in Plaintiff’s Amended Complaint, Defendants have limited their

demurrer to Plaintiff’s claim of negligence as articulated in Count 1.” (Trial

court opinion, 8/9/13 at 4 n.6.)   Nonetheless, despite having been put on

notice that forgery is not a cognizable cause of action, appellant did not seek

to amend her complaint to include a cause of action for fraudulent

misrepresentation until November 19, 2013, after appellees had filed their

motion for judgment on the pleadings.        (Trial court opinion, 3/21/14 at

9 n.12.)

      Furthermore, we agree with the trial court that regardless of the

heading of Count 2, appellant did not successfully plead a case for fraudulent

misrepresentation. In her amended complaint, appellant alleged that on or

about March 24, 2010, appellees forged her signature on a Rule 600 waiver

and continuance request. According to appellant, they knew that they did

not have her permission or consent to agree to a continuance in the matter

or to delay trial.   Appellant alleges that appellees submitted the forged

continuance request to the court and obtained a continuance that they knew

appellant did not need and did not agree to. (Plaintiff’s amended complaint,



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1/29/13 at 19, ¶¶ 109-111.) Appellant alleged that appellees violated her

right to a speedy trial under the 6th Amendment of the United States

Constitution and Rule 600. (Id. at 19-20, ¶ 113.)

                      The    elements     of    fraudulent
                 misrepresentation are as follows:

                       (1)      A       representation;
                       (2) which is material to the
                       transaction        at     hand;
                       (3) made        falsely,    with
                       knowledge of its falsity or
                       recklessness as to whether it
                       is true or false; (4) with the
                       intent of misleading another
                       into      relying      on     it;
                       (5) justifiable reliance on the
                       misrepresentation;         and,
                       (6) the resulting injury was
                       proximately caused by the
                       reliance.

                 Heritage Surveyors & Eng’rs, Inc. v.
                 Nat’l Penn Bank, 801 A.2d 1248, 1250-
                 51 (Pa.Super.2002).     Scienter, or the
                 maker’s knowledge of the untrue
                 character of his representation, is a key
                 element      in    finding     fraudulent
                 misrepresentation.     See Restatement
                 (Second) of Torts § 526, Comment a.

           Ira G. Steffy & Son, Inc. v. Citizens Bank of
           Pennsylvania, 7 A.3d 278, 290 (Pa.Super.2010),
           appeal denied, 611 Pa. 675, 27 A.3d 1015 (2011).
           Fraud must be proven by clear and convincing
           evidence.    [Hart v. Arnold, 884 A.2d 316
           (Pa.Super.2005), appeal denied, 897 A.2d 458 (Pa.
           2006)]; Goldstein v. Phillip Morris, Inc., 854 A.2d
           585, 590 (Pa.Super.2004).




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Weston v. Northampton Personal Care, Inc., 62 A.3d 947, 960

(Pa.Super. 2013), appeal denied, 79 A.3d 1099 (Pa. 2013).

      Instantly,   appellant   cannot     prove   either    justifiable    reliance   or

damages. As the trial court states, the recipient of the allegedly fraudulent

continuance request was not appellant, but the Lebanon County Court of

Common Pleas. (Trial court opinion, 3/21/14 at 8.) It was the court that

appellees were allegedly seeking to induce to act through the grant of a

continuance, and it was the court which ultimately relied upon the document

and granted the continuance. In fact, according to appellant, appellees hid

the continuance request from her and never notified her that the document

even existed. (Plaintiff’s amended complaint, 1/29/13 at 12 ¶¶ 58-59; 19

¶ 112.) As the trial court explains,

            the recipient of the criminal continuance form
            allegedly forged by Defendant Coyle was not the
            Plaintiff, but the Court. It was the Court -- not the
            Plaintiff -- who the maker sought to induce to act
            through the grant of a continuance; it was the Court
            who ultimately relied upon the document and
            granted the continuance. Yet it is not the Court who
            has initiated this suit or claimed damages as a result.

Trial court opinion, 3/21/14 at 8-9 (footnote omitted).

      In Joyce v. Erie Ins. Exchange, 74 A.3d 157 (Pa.Super. 2013), the

appellant made similar allegations in support of a claim for fraudulent

misrepresentation:        “Appellant      averred    that     State       Farm   made

misrepresentations to the court and jury during Appellant’s criminal trial,

and also submitted a false victim impact statement. Appellant alleged that


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the government relied upon State Farm’s misrepresentations, and further

alleged that the government’s reliance on those statements harmed

Appellant.” Id. at 167 (citations to the complaint omitted). This court held

that the appellant had not sufficiently pled fraud where he had not alleged

that State Farm made any misrepresentation to him, or that he was

deceived:

                 The Complaint failed to state a
                 prima facie case of fraud against State
                 Farm and Erie Insurance because it failed
                 to plead that either defendant had made
                 a misrepresentation to [Appellant], and it
                 failed   to    plead    that    [Appellant]
                 reasonably       relied      upon      that
                 misrepresentation. For a prima facie
                 case of fraud, the recipient of the
                 misrepresentation must be the one to
                 reasonably        rely       upon       the
                 misrepresentation and to be damaged as
                 a proximate cause of that reliance. See
                 Elia v. Erie Ins. Exchange [398
                 Pa.Super. 433], 581 A.2d 209, 211-12
                 (Pa.Super. 1990) (citations omitted).
                 The Complaint does not allege that the
                 recipient of the misrepresentation was
                 the individual or entity damaged as a
                 proximate cause of reasonable reliance
                 upon the misrepresentation. Therefore,
                 the Complaint failed to state a cause of
                 action for fraud against Erie Insurance or
                 State Farm.

            Trial Court Opinion, 4/25/2012, at 2–3 (italics in
            original).

Id.




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        As in Joyce, here, appellant claims that the court reasonably relied

upon the alleged misrepresentation, not her.           In fact, appellant was

completely unaware that a defense continuance request had been filed.

Therefore, she cannot prove the necessary element of justifiable reliance.

        Furthermore, appellant cannot prove damages as a proximate result of

the alleged misrepresentation, where her criminal conviction has been

upheld on appeal. Appellant alleges that the fraudulent continuance request

impaired her speedy trial rights; however, appellant would have to

demonstrate     that,   without   the     defense   continuance   request,   the

Commonwealth would have exceeded the 365-day time limit for bringing

appellant to trial under Rule 600.         Appellant alleges that the improper

continuance request delayed prosecution by 61 days, but does not even

attempt to show how, in the absence of excludable time attributable to the

defense continuance, a Rule 600 violation would have occurred.

        We agree with the trial court that appellant cannot make out the

elements of a cause of action for fraudulent misrepresentation. Therefore,

the trial court did not err in granting appellees’ motion for judgment on the

pleadings and dismissing appellant’s amended complaint with prejudice.

        We now turn to appellant’s motion for recusal, denied November 1,

2012.     “Recusal is required whenever there is substantial doubt as to a

jurist’s ability to preside impartially.” Commonwealth v. Tainan, 734 A.2d

886, 889 (Pa.Super. 1999) (citation omitted). The burden is on the party



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moving for recusal; there is a presumption that a judge has acted properly,

bound by the oaths of his office and faithful to the requirements of an

unprejudiced,   unbiased    judiciary.    Id.      Furthermore,    “[t]he     mere

participation by the presiding judge in an earlier stage of the proceeding

neither suggests the existence of actual impropriety nor provides a basis for

a finding of the appearance of impropriety.” Commonwealth v. Boyle, 447

A.2d 250, 253 (Pa. 1982) (citations omitted).

      Here, appellant filed her motion for recusal six days after filing her

complaint, before any judge had been assigned to her case.           (Trial court

opinion, 11/1/12 at 5.) Apparently, her motion was directed to the entire

Lebanon County Court of Common Pleas, based on the underlying criminal

case. (Id.) However, the Honorable Robert J. Eby is a senior judge and was

assigned this matter in August 2012.          (Id. at 7.)   Judge Eby had no

involvement whatsoever in appellant’s criminal case.        (Id. at 6.)    In fact,

Judge Eby had retired from active status over eight months before the

criminal charges were filed. (Id.) There is nothing to support appellant’s

claims of bias or partiality.   The trial court did not abuse its discretion in

denying appellant’s motion for recusal.

      Finally, we address appellant’s argument that the trial court refused to

provide her with a transcript of the May 1, 2013 proceedings.             Appellant

requested the use of a court stenographer due to a disability, which was

granted. Appellant indicated she wanted a stenographer present during oral



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argument in case she needed portions of any exchange read back to her.

(Trial court opinion, 5/13/14 at 9.) However, appellant did not request to

record the proceedings.    (Id. at 9 n.3.)    It is not the policy of Lebanon

County to record or transcribe oral argument, since no testimony is taken at

such proceedings. (Id.) Prior to the start of oral argument, the trial court

explained to appellant that the court stenographer was there for the sole

purpose of contemporaneously reading back statements appellant could not

hear, recall, or understand. (Id. at 9-10.) Appellant was explicitly told that

no transcript of the proceedings would be produced. (Id. at 10.) At no time

did appellant object or request that the proceedings be recorded for

permanent use. (Id.) Therefore, the matter is waived. Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”). At any rate, appellant has failed to cite any legal

authority for the proposition that she was entitled to a transcript of the oral

argument on preliminary objections. More importantly, she cannot possibly

demonstrate prejudice where no testimony was taken or evidence presented

at the May 1, 2013 proceedings and we have already determined, for the

reasons discussed above, that the trial court did not err in sustaining

appellees’ preliminary objections in the nature of a demurrer to appellant’s

legal malpractice claim.

      Order affirmed.




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J. A34009/14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2015




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