J-S81003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    NICHOLAS L. BOWEN                              IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellant

                        v.

    CLYDE K. MIDDLETON

                             Appellee                 No. 1072 MDA 2018


               Appeal from the Order Entered September 27, 2017
                In the Court of Common Pleas of Columbia County
                  Civil Division at No: DT-6613 No. 2015-CV-673


BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                            FILED MARCH 22, 2019

        Appellant, Nicholas L. Bowen, appeals pro se from the September 27

2017 order granting judgment on the pleadings in favor of Appellee, Clyde K.

Middleton in this legal malpractice action against Appellee. We affirm.

        In the underlying criminal action, Appellant pled guilty to first-degree

murder in connection with the rape and murder of a four-year-old girl.

Appellant was seventeen years old at the time of the offense. On September

30, 1998, the trial court sentenced Appellant to life in prison without parole.

        On February 20, 2013, Appellee entered his appearance on behalf of

Appellant for Appellant’s appeal of the dismissal of a serial petition under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.         Appellant


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*   Former Justice specially assigned to the Superior Court.
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asked Appellee to challenge his sentence based on the United States Supreme

Court’s opinion in Miller v. Alabama, 132 S. Ct. 2455 (2012), which

prohibited mandatory sentences of life without parole for juvenile offenders.

Appellant’s appeal was continued, on motion of the Commonwealth, pending

the outcome of Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). The

Cunningham Court issued its opinion on October 30, 2013, holding that

Miller was not retroactive. Appellant’s appeal was therefore dismissed on

December 9, 2013, and Appellee pursued the matter no further.

       On January 27 2016, however, the United States Supreme Court issued

its opinion in Montgomery v. Louisiana, 136 S. Ct. 718 (2016) holding that

Miller   applied    retroactively.       The     Pennsylvania   Supreme   Court,   in

Commonwealth v. Batts, 163 A.3d 410, 439 n.8 (Pa. 2017), recognized that

Montgomery abrogated Cunningham. Thereafter, Appellant filed another

PCRA petition and received a new sentencing proceeding based on Miller and

Montgomery.1

       Appellant commenced this malpractice action against Appellee on May

20, 2015, alleging that Appellee committed malpractice in failing to challenge

the December 9, 2013 dismissal of his appeal pursuant to Cunningham.

Appellee filed preliminary objections, and Appellant filed an amended


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1 On resentencing, the trial court once again imposed life in prison without
parole. This Court vacated the new sentence and remanded for further
proceedings. Commonwealth v. Bowen, 1078 WDA 2017 (Pa. Super.
September 5, 2018) (unpublished memorandum).

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complaint on March 7, 2016. Appellee filed an answer and new matter on

March 28, 2016 and a motion for judgment on the pleadings on April 21, 2016.

Appellant filed a motion for summary judgment on June 13, 2017. The trial

court heard argument on July 14, 2017 and subsequently entered an order

granting Appellee’s motion. This timely appeal followed.

     Our standard of review is well settled:

            [A]ppellate review of a trial court’s decision to grant or deny
     judgment on the pleadings is limited to determining whether the
     trial court committed an error of law or whether there were facts
     presented which warrant a jury trial. In conducting this review,
     we look only to the pleadings and any documents properly
     attached thereto. Judgment on the pleadings is proper only where
     the pleadings evidence that there are no material facts in dispute
     such that a trial by jury would be unnecessary.

            In passing on a challenge to the sustaining of a motion for
     judgment on the pleadings, our standard of review is limited. We
     must accept as true all well pleaded statements of fact of the party
     against whom the motion is granted and consider against him only
     those facts that he specifically admits. We will affirm the grant of
     such a motion only when the moving party’s right to succeed is
     certain and the case is so free from doubt that the trial would
     clearly be a fruitless exercise.

Bowman v. Sunoco, Inc., 986 A.2d 883, 886 (Pa. Super. 2009), affirmed,

65 A.3d 901 (Pa. 2013).

     To succeed on a tort-based legal malpractice cause of action, a plaintiff

must prove that 1) he employed the attorney; 2) the attorney failed to

exercise ordinary skill and knowledge; and 3) that such failure was the

proximate cause of harm to the plaintiff. Wachovia Bank, N.A. v. Feretti,

935 A.2d 565, 570-71 (Pa. Super. 2007). If the claim is based on breach of



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contract (Appellant is not specific) the plaintiff must prove that the attorney

failed to provide the plaintiff “with professional services consistent with those

expected of the profession at large.” Id.

       Appellant’s cause of action fails under either scenario.       As of the

December 9, 2013 dismissal of his appeal, the Pennsylvania Supreme Court’s

opinion in Cunningham was controlling, and it precluded retroactive

application of Miller to Appellant’s criminal sentence.      The United States

Supreme Court had yet to address the issue. Appellant fails to explain how

Appellee committed legal malpractice by failing to pursue the matter further.

In any event, Appellant successfully sought a new sentencing proceeding after

Montgomery abrogated Cunningham. Thus, Appellant has received relief

under the substantive holding of Miller, which is precisely the relief he hoped

Appellee would obtain for him. Appellant cannot prove damages, regardless

of whether his claim against Appellee is based in tort or contract. We therefore

affirm the order entering judgment on the pleadings in favor of Appellee. 2

       Order affirmed. Jurisdiction relinquished.




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2  Appellant also purports to appeal from the trial court’s denial of his motion
for summary judgment. Ordinarily, an order denying summary judgment is
interlocutory and not immediately appealable. Maas v. UPMC Presbyterian
Shadyside, 192 A.3d 1139, 1141 n.1 (Pa. Super. 2018). We discern no
reason to conclude otherwise in this case, and even if we did, the appeal would
fail for reasons explained in the main text.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2019




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