J. S44014/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANDREW P. GLUSHKO,                       :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :
                                         :
THE HENRY LAW FIRM;                      :         No. 3219 EDA 2015
TODD EDWARD HENRY AND                    :
DANIEL McGARRIGLE                        :


               Appeal from the Order Entered August 31, 2015,
               in the Court of Common Pleas of Monroe County
                      Civil Division at No. 2438-CV-2014


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 11, 2016

      Andrew P. Glushko appeals, pro se, from the order entered August 31,

2015, denying his petition for reinstatement of in forma pauperis (“IFP”)

status. We dismiss the appeal.

      On July 16, 2009, following a jury trial, appellant was found guilty of

multiple counts of unlawful contact with a minor, criminal attempt and

criminal solicitation counts related to various sexual offenses, corruption of

minors, and criminal use of a communication facility.          Appellant was

sentenced to 4 to 8 years’ imprisonment. This court affirmed the judgment

of sentence, and appellant did not file a petition for allowance of appeal with

the Pennsylvania Supreme Court.      Commonwealth v. Glushko, 26 A.3d
J. S44014/16


1190 (Pa.Super. 2011) (unpublished memorandum). Appellees represented

appellant on his direct appeal.

        Subsequently, appellant litigated a PCRA1 petition which was denied.

This court affirmed the denial of PCRA relief, and our supreme court denied

allowance of appeal.        Commonwealth v. Glushko, 102 A.3d 544

(Pa.Super. 2014) (unpublished memorandum), appeal denied, 104 A.3d 2

(Pa. 2014). On March 28, 2014, while his PCRA appeal was pending in this

court, appellant filed a professional liability complaint alleging malpractice

and breach of contract based on appellees’ purported mishandling of his

direct appeal. However, appellant did not file a certificate of merit (“COM”)

as required by Pa.R.C.P. 1042.3.

        On January 5, 2015, the trial court sustained appellees’ preliminary

objections in part and struck Counts 6, 7, & 8 of appellant’s complaint.

However, the trial court reserved ruling on appellees’ demurrer to give the

parties time to brief the issue.       Subsequently, on January 27, 2015,

appellees filed a praecipe for judgment of non pros for failure to file a COM,

and on January 29, 2015, the prothonotary entered judgment of non pros.

        On February 2, 2015, appellant filed a notice of appeal from the

January 5, 2015 order, as well as a petition for leave to file a COM and a

petition to strike off judgment of non pros.          Appellant’s appeal was

docketed at No. 720 EDA 2015. In an opinion and order filed April 2, 2015,


1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


                                      -2-
J. S44014/16


the trial court determined that the February 2 appeal was interlocutory and

premature, and therefore, the trial court retained jurisdiction to decide any

outstanding      issues.   (Opinion   and   Order,   4/2/15   at   8-9.)      See

Pa.R.A.P. 1701(b)(6) (“After an appeal is taken or review of a quasijudicial

order is sought, the trial court or other government unit may:             Proceed

further in any matter in which a non-appealable interlocutory order has been

entered, notwithstanding the filing of a notice of appeal or a petition for

review of the order.”). The trial court denied appellant’s motion to continue

IFP status on the basis that the appeal was frivolous. (Id. at 9-10, citing

Pa.R.C.P. 240(j)(1) (“If, simultaneous with the commencement of an action

or proceeding or the taking of an appeal, a party has filed a petition for

leave to proceed in forma pauperis, the court prior to acting upon the

petition may dismiss the action, proceeding, or appeal if the allegation of

poverty is untrue or if it is satisfied that the action, proceeding or appeal is

frivolous.”).)    See also Bell v. Mayview State Hosp., 853 A.2d 1058,

1060 (Pa.Super. 2004) (“Under Rule 240(j), an action is frivolous if, on its

face, it does not set forth a valid cause of action.”) (internal quotation marks

and citations omitted). In addition, the trial court determined that appellant

failed to set forth sufficient factual averments to support his claim of

indigence. (Opinion and Order, 4/2/15 at 10 n.5.)

      The trial court also denied appellant’s motion to open/strike judgment

of non pros, finding that he had ample opportunity to file a COM and failed



                                      -3-
J. S44014/16


to do so. (Id. at 19.) Furthermore, the trial court determined that even if

the judgment was opened, appellees’ preliminary objections in the nature of

a demurrer would be sustained and the complaint stricken because appellant

failed to plead or establish claims upon which relief may be granted.    The

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

which governs actions in criminal malpractice, appellant was unable to plead

a legally sufficient claim of professional negligence.   (Opinion and Order,

4/2/15 at 12-14.)2   Therefore, the trial court denied appellant’s motion to

continue IFP status; denied his petition to strike off judgment of non pros,

and, in the alternative, sustained appellees’ preliminary objections in the

nature of a demurrer; denied appellant’s motion for reconsideration of the

January 5, 2015 order; and dismissed appellant’s remaining motions and

requests as moot. (Id. at 22.)

      The trial court’s April 2, 2015 order denying appellant’s petition to

strike the judgment of non pros and dismissing the complaint was a final

and    immediately      appealable    order.         Pa.R.A.P.    311(a)(1);

Pa.R.A.P. 341(b)(1). Appellant filed an appeal on May 1, 2015 at No. 1436


2
  Under Bailey, a criminal defendant/legal malpractice plaintiff must prove,
inter alia, that 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; and he has pursued post-trial remedies
and obtained relief which was dependent upon attorney error. Bailey, 621
A.2d at 114-115. Appellant would be unable to satisfy this standard where
his judgment of sentence was upheld on direct appeal, and he was denied
PCRA relief.


                                     -4-
J. S44014/16


EDA 2015.3       Appellant also filed another motion for continuation of IFP

status on appeal, which was not ruled upon by the trial court. On May 27,

2015, this court granted appellant’s motion to withdraw the February 2,

2015 appeal at docket number 720 EDA 2015, filed from the order of

January 5, 2015.

        On August 10, 2015, appellant filed a “Motion for Documents/

Transcripts, Reinstatement of [IFP] Status, and Retraction of Costs.”            This

motion was denied on August 31, 2015, “for the reasons set forth in the

prior orders and opinions issue[d] by this Court, especially those that have

addressed [appellant]’s recent requests for [IFP] status.”        (Order, 8/31/15

at 1;   docket   #9.)    Appellant   filed   an   appeal   from   that   order    on

September 29, 2015. On November 6, 2015, appellant was ordered to file a

concise statement of errors complained of on appeal within 21 days pursuant

to Pa.R.A.P. 1925(b); appellant complied on November 20, 2015, asserting

that the trial court was without authority to deny appellant’s motion for

continuation of IFP status pursuant to Pa.R.A.P. 551 and Nevyas v.


3
  Appellant is currently incarcerated and so the “prisoner mailbox rule,” in
which a pro se prisoner’s appeal is deemed filed on the date that he delivers
the appeal to prison authorities and/or places his notice of appeal in the
institutional mailbox, applies. See Smith v. Pa. Bd. of Prob. & Parole,
683 A.2d 278, 281 (Pa. 1996); Thomas v. Elash, 781 A.2d 170, 176
(Pa.Super. 2001) (holding that the prisoner mailbox rule applies to all
pro se legal filings by incarcerated litigants, including civil actions).
Appellees contend that appellant’s appeal notice was not filed until May 6,
2015, beyond the 30-day filing deadline. (Appellees’ brief at 7.) However,
appellant averred that he deposited his notice of appeal with prison officials
for mailing on May 1, 2015. Therefore, it is deemed filed on that date.


                                      -5-
J. S44014/16


Morgan, 921 A.2d 8 (Pa.Super. 2007).         (Docket #7.)      On December 21,

2016, the trial court filed a Rule 1925(a) opinion.    Therein, the trial court

opined that the appeal should be dismissed or quashed as moot since the

underlying appeal at No. 1436 EDA 2015 has been dismissed. (Trial court

opinion, 12/21/16 at 1-2.)        Alternatively, the trial court found that

appellant’s prior appeals are frivolous and his applications lack sufficient

averments of indigence. (Id. at 3.) The trial court noted that appellant has

a history of filing frivolous motions and appeals. (Id. at 2.)

        On November 16, 2015, this court had dismissed the appeal at

No. 1436 EDA 2015, which was the appeal from the April 2, 2015 order

denying appellant’s petition to strike off judgment of non pros. This court

dismissed the appeal due to appellant’s failure to pay the appropriate filing

fees.    We noted that on August 31, 2015, the trial court had denied

appellant’s motion for reinstatement of IFP status, citing the frivolous nature

of appellant’s complaint.   Glushko v. The Henry Law Firm, et al., No.

1436 EDA 2015, per curiam order (Pa.Super. filed November 16, 2015).

Appellant filed a petition for allowance of appeal with the Pennsylvania

Supreme Court which was denied on May 3, 2016.

        Appellant has raised the following issue for this court’s review:

“Whether the lower court erred in denying [appellant]’s motion for

reinstatement of [IFP] status?”    (Appellant’s brief at 1.)     Appellant argues




                                     -6-
J. S44014/16


that the trial court was without authority to deny continuation of IFP status

while his appeal was pending. (Id. at 3.)4

            (a)   General rule. A party who has been granted
                  leave by a lower court to proceed in forma
                  pauperis may proceed in forma pauperis in
                  an appellate court upon filing with the clerk of
                  the lower court two copies of a verified
                  statement stating:

                  (1)   The date on which the lower court
                        entered the order granting leave to
                        proceed in forma pauperis.

                  (2)   That there has been no substantial
                        change in the financial condition of
                        the party since such date.

                  (3)   That the party is unable to pay the
                        fees and costs on appeal.

Pa.R.A.P. 551(a). Appellant is correct that the trial court has no authority to

revoke IFP status while an appeal is pending. Nevyas, 921 A.2d at 13-14.

Here, however, the underlying appeal from the April 2, 2015 order denying

appellant’s petition to strike off the judgment of non pros in the criminal

malpractice action has been dismissed and appellant’s petition for allowance

of appeal has been denied. There is no longer an appeal pending. Appellant

failed to respond to this court’s September 15, 2015 show cause order, and

we dismissed the appeal at No. 1436 EDA 2015. The earlier, interlocutory

appeal was withdrawn by appellant. The underlying litigation has come to



4
   As appellees observe, appellant uses the terms “continuation” and
“reinstatement” interchangeably. (Appellees’ brief at 11 n.4.)


                                     -7-
J. S44014/16


an end. Therefore, we agree with the trial court that the issue of appellant’s

IFP status is moot.

      Furthermore, as explained by the trial court in its April 2, 2015 opinion

and order, appellant failed to comply with the COM requirements and he

cannot possibly prove legal malpractice where he was found guilty and has

exhausted all of his appeals and state post-conviction remedies. Appellant

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

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

cannot prove that “but for” the allegedly negligent acts of his attorneys, he

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.”). See

also Hill v. Thorne, 635 A.2d 186, 190-191 (Pa.Super. 1993) (“[P]ublic

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




                                     -8-
J. S44014/16


systemic remedies, such as appeals and post-conviction proceedings.”),

citing Bailey, 621 A.2d at 112-113.

      Appellant also could not establish the fifth element of criminal legal

malpractice required by Bailey, the successful pursuit of post-trial relief

dependent upon attorney error.        As set forth above, appellant’s PCRA

petition was denied, and this court affirmed.       The Pennsylvania Supreme

Court has recently denied allocatur.        Appellant was not entitled to IFP

status to pursue this wholly frivolous lawsuit.     See Conover v. Mikosky,

609 A.2d 558, 560 (Pa.Super. 1992) (“Courts should not allow a litigant

seeking in forma pauperis status to use the court’s time and the

taxpayer’s money to support a frivolous claim.”).

      Appeal dismissed. Appellant’s application to file a reduced number of

copies of his reply brief is denied as moot, appellant having already filed the

requisite number of copies (4).

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




                                      -9-
