J. S62040/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

PAUL PECINA, JR.,                       :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                         Appellant      :
                                        :
                    v.                  :
                                        :
LAW OFFICES OF JOEL SANSONE,            :          No. 901 WDA 2019
JOEL SANSONE, ESQUIRE,                  :
MASSIMO TERZIGNI, ESQUIRE               :


                Appeal from the Order Entered May 23, 2019,
             in the Court of Common Pleas of Allegheny County
                     Civil Division at No. GD-18-008012


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 25, 2020

     Paul Pecina, Jr., appeals pro se from the May 23, 2019 order1 sustaining

the preliminary objections of appellees, Law Offices of Joel Sansone,

Joel Sansone, Esq., and Massimo Terzigni, Esq., and dismissing appellant’s

second amended complaint with prejudice. After careful review, we affirm.




1 We note that “an appeal may be taken of right from any final order of a
government unit or trial court.” Pa.R.A.P. 341(a). A final order is that which
“disposes of all claims and of all parties . . . .” Pa.R.A.P. 341(b)(1). “As a
general rule, where preliminary objections are sustained and a complaint is
dismissed, the order sustaining the preliminary objections and dismissing the
complaint is final and appealable.” In re Nadzam, 203 A.3d 215, 219
(Pa.Super. 2019) (citation omitted); see also D'Elia v. Folino, 933 A.2d 117,
121 (Pa.Super. 2007), appeal denied, 948 A.2d 804 (Pa. 2008).
Accordingly, we may exercise jurisdiction over this appeal.
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      The trial court summarized the relevant procedural history of this case

as follows:

              On June 22, 2018, [appellant] filed a [pro se]
              complaint in civil action against [appellees] raising
              one (1) count of legal malpractice.[2] On October 5,
              2018, [appellees] filed preliminary objections to
              [appellant’s] complaint.    [Appellees’] preliminary
              objections were sustained and [appellant] was
              granted leave to amend his complaint.            The
              December 5, 2018, order of court provided that the
              amended complaint was to include a certificate of
              merit.

              [Appellant] filed an amended complaint on
              February 4, 2019.        [Appellees] filed preliminary
              objections to the amended complaint. By order dated
              March 29, 2019, the preliminary objections were
              sustained and [appellant] was granted leave to amend
              the complaint “with more specificity as to damages
              and the availability of job[s] and rehiring.”

              [Appellant] filed a second amended complaint on
              April 4, 2019. [Appellees’] preliminary objections
              were sustained and [appellant’s] second amended
              complaint was dismissed with prejudice by order of
              court filed May 23, 2019.

Trial court opinion, 8/1/19 at 2-3 (extraneous capitalization omitted).

      Appellant filed a timely pro se notice of appeal to this court on June 20,

2019. On June 21, 2019, the trial court directed appellant to file a concise

statement     of   errors   complained   of    on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b), within 21 days. Appellant filed his Rule 1925(b) statement


2  Specifically, appellant alleged that appellees provided negligent
representation in his underlying employment discrimination action against his
former employer, Veterans Affairs Pittsburgh HealthCare System (“VAPHS”).
(Pro se “Complaint in Civil Action,” 6/22/18 at ¶¶ 39-86.)


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on July 3, 2019, and the trial court filed its Rule 1925(a) opinion on August 1,

2019.

        Preliminarily, we recognize that appellant’s two-page, five-paragraph

“Statement of the Question Involved” is in violation of Pa.R.A.P. 2116(a),

which provides, in relevant part, as follows:

             The statement of the questions involved must
             state concisely the issues to be resolved,
             expressed in the terms and circumstances of the
             case but without unnecessary detail.           The
             statement will be deemed to include every
             subsidiary question fairly comprised therein. No
             question will be considered unless it is stated in
             the statement of questions involved or is fairly
             suggested thereby. Each question shall be followed
             by an answer stating simply whether the court or
             government unit agreed, disagreed, did not answer,
             or did not address the question.

Pa.R.A.P. 2116(a) (emphasis added).        It is well settled that “although this

Court is willing to liberally construe materials filed by a pro se litigant, pro se

status confers no special benefit upon the appellant.” In re Ullman, 995 A.2d

1207, 1211-1212 (Pa.Super. 2010) (citations omitted), appeal denied, 20

A.3d 489 (Pa. 2011).      “This Court may quash or dismiss an appeal if the

appellant fails to conform to the requirements set forth in the Pennsylvania

Rules of Appellate Procedure.”      Id. at 1211 (citation omitted); see also

Pa.R.A.P. 2101. However, we decline to find waiver in this instance, as we

are able to discern the crux of appellant’s claim on appeal from the “Argument”

section of his brief.




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      Appellant contends that the trial court abused its discretion in dismissing

his second amended complaint with prejudice because appellees failed to raise

all their preliminary objections at one time, in accordance with Pennsylvania

Rule of Civil Procedure 1028(b). (Appellant’s brief at 15.) Thus, appellant

avers that appellees “waived the right to demur [the] complaint.” (Id.) We

disagree.

      Our standard of review in determining whether a trial court erred in

sustaining preliminary objections in the nature of a demurrer is well settled.

“[A] trial court’s decision to grant or deny a demurrer involves a matter of

law, [and] our standard for reviewing that decision is plenary.” Donaldson

v. Davidson Bros., 144 A.3d 93, 100 (Pa.Super. 2016) (citations omitted),

appeal denied, 169 A.3d 11 (Pa. 2017).

            When reviewing the dismissal of a complaint based
            upon preliminary objections in the nature of a
            demurrer, we treat as true all well-pleaded material,
            factual averments and all inferences fairly deducible
            therefrom. Where the preliminary objections will
            result in the dismissal of the action, the objections
            may be sustained only in cases that are clear and free
            from doubt. To be clear and free from doubt that
            dismissal is appropriate, it must appear with certainty
            that the law would not permit recovery by the plaintiff
            upon the facts averred. Any doubt should be resolved
            by a refusal to sustain the objections.

Stewart v. FedEx Exp., 114 A.3d 424, 426 (Pa.Super. 2015) (citations

omitted), appeal denied, 126 A.3d 1285 (Pa. 2015). “The impetus of our

inquiry is to determine the legal sufficiency of the complaint and whether the

pleading would permit recovery if ultimately proven.”       Barton v. Lowe’s


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Home Centers, Inc., 124 A.3d 349, 354 (Pa.Super. 2015) (citation omitted).

Additionally, we “will reverse the trial court’s decision regarding preliminary

objections only where there has been an error of law or abuse of discretion.”

Id.

      After a thorough review of the record, we discern no abuse of discretion

on the part of the trial court in sustaining appellees’ preliminary objections

and dismissing appellant’s second amended complaint with prejudice.         Our

review of the record reveals ample support for the trial court’s determination

that appellant failed to plead facts in his second amended complaint sufficient

to prove actual damages required for a viable legal malpractice claim. It is

well settled that a legal malpractice claim may be brought by an aggrieved

client in either tort or contract. Wachovia Bank, N.A. v. Ferretti, 935 A.2d

565, 570 (Pa.Super. 2007).      “The elements of a legal malpractice action,

sounding in negligence, include: (1) employment of the attorney or other

basis for a duty; (2) failure of the attorney to exercise ordinary skill and

knowledge; and (3) that such failure was the proximate cause of the harm to

the plaintiff.” Id. at 570-571 (citations and internal quotation marks omitted).

            In essence, a legal malpractice action in Pennsylvania
            requires the plaintiff to prove that he had a viable
            cause of action against the party he wished to
            sue in the underlying case and that the attorney he
            hired was negligent in prosecuting or defending that
            underlying case (often referred to as proving a “case
            within a case”).




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Sabella v. Estate of Milides, 992 A.2d 180, 187 (Pa.Super. 2010) (citation

omitted; emphasis added), appeal denied, 9 A.3d 631 (Pa. 2010).

      Here, the trial court dismissed appellant’s second amended complaint

with prejudice only after appellant was afforded multiple opportunities to

amend his complaint by pleading facts sufficient to prove he would have been

hired by the VAPHS but for appellees’ legal malpractice.         The trial court

reasoned in its opinion as follows:

            The    Court      sustained    [appellees’]  preliminary
            objections to [appellant’s] second amended complaint
            because [appellant] failed to allege actual damages
            after having been given the opportunity to amend his
            complaint three (3) times. The Court found that
            [appellant] failed to comply with the order of
            March 29, 2019, which required that [appellant] plead
            with specificity regarding damages and the
            “availability of [a job] and rehiring.” The Court agreed
            with [appellees] that [appellant] failed to allege that
            he would have been hired as a plumber absent
            [appellees’] alleged malpractice.

Trial court opinion, 8/1/19 at 3-4 (extraneous capitalization omitted).      We

agree with this assessment.

      Contrary to appellant’s contention, the record further reflects that

appellees’ pleadings satisfied the requirements of Pa.R.Civ.P. 1028(b).

Rule 1028(b) provides, in relevant part, that “[a]ll preliminary objections shall

be raised at one time. They shall state specifically the grounds relied upon

and may be inconsistent.”       Pa.R.Civ.P. 1028(b).      Here, appellees filed

preliminary objections on three occasions, each time after appellant was given

the opportunity to amend his complaint.          In each pleading, appellees’


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preliminary objections alleged the legal insufficiency of appellant’s complaint.

(See “Preliminary Objections to [Appellant’s] Complaint,” 10/5/18 at ¶ 9;

“Preliminary Objections to [Appellant’s] Amended Complaint,” 2/25/19 at ¶ 6;

“Preliminary Objections to [Appellant’s] Second Amended Complaint,”

4/23/19 at ¶ 7.) “Preliminary objections in the nature of a demurrer test the

legal sufficiency of the complaint.” Richmond v. McHale, 35 A.3d 779,

783 (Pa.Super. 2012) (citation omitted; emphasis added).           Accordingly,

Rule 1028(b) was clearly not violated in this case, and appellees did not waive

their right to demurrer.

      Based on the foregoing, we affirm the trial court’s order sustaining

appellees’ preliminary objections and dismissing appellant’s second amended

complaint with prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2020




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