J-S27018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DENNIS HORTON,                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    JAMES S. BRUNO                             :   No. 2176 EDA 2016

                      Appeal from the Order June 9, 2016
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 130202725


BEFORE:       GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                                       FILED July 3, 2017

        Dennis Horton appeals, pro se, from the order entered June 9, 2016,

in the Philadelphia County Court of Common Pleas, granting the motion for

summary judgment filed by defendant, James S. Bruno, in this legal

malpractice action.1        Horton is currently serving a prison term of life


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   We note Horton’s notice of appeal filed on July 12, 2016, was premature
because, at that time, his motion for summary judgment, filed in May of
2016, was still outstanding. See Pa.R.A.P. 341(b)(1) (a final order is one
that, inter alia, “disposes of all claims and of all parties”). However, on
September 13, 2016, the trial court entered an order denying Horton’s
motion. Accordingly, Horton’s appeal is properly before us. See Pa.R.A.P.
905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”).
J-S27018-17



imprisonment for a 1994 conviction of second-degree murder2 and related

charges.     Bruno served as Horton’s Post Conviction Relief Act (“PCRA”)3

counsel from 2009 to 2011.             Thereafter, Horton reported Bruno to the

Pennsylvania Disciplinary Board, and based upon his representation of

Horton and several other clients, Bruno was subsequently suspended from

the practice of law for two years. While the disciplinary proceedings were

pending, Horton filed this civil complaint asserting legal malpractice.     On

appeal, Horton contends the trial court erred or abused its discretion by: (1)

denying his pretrial motion to amend his complaint; (2) denying his motion

to compel Bruno to produce certain documents; and (3) granting Bruno’s

motion for summary judgment. For the reasons below, we affirm.

        The facts and procedural history underlying this appeal are aptly

summarized by the trial court as follows:

              On September 30, 1994, a jury convicted [Horton] of
        murder in the second degree, three counts of aggravated
        assault, four counts of robbery, and one count each of criminal
        conspiracy and possessing an instrument of crime.         [See
        Commonwealth v. Horton, 48 A.3d 479 (Pa. Super. 2012)
        (unpublished memorandum)]. [Horton] was sentenced to an
        aggregate term of life imprisonment for the murder plus
        eighteen and a half to sixty-one years’ imprisonment for the
        remaining offenses. On March 20, 1996, the Superior Court
        affirmed the judgment of sentence.        Commonwealth v.
        Horton, 678 A.2d 828 (Pa. Super. 1996) (unpublished
        mem[orandum]).
____________________________________________


2
    See 18 Pa.C.S. § 2502.
3
    42 Pa.C.S. §§ 9541-9546.



                                           -2-
J-S27018-17


           On October 11, 1996, [Horton] retained private counsel
     and filed his first Post Conviction Relief Act (“PCRA”) petition.1
     The trial court dismissed [Horton’s] PCRA petition, and the
     Superior Court affirmed. See Commonwealth v. Horton, 736
     A.2d 9 (Pa. Super. 1998) (unpublished mem[orandum]), appeal
     denied, 738 A.2d 455 (Pa. 1999).
     __________
       1
         The pleadings and the Superior Court opinion, Horton,
       48 A.3d 479, maintain that [Horton’s] first PCRA petition
       did not raise his original trial counsel’s ineffective
       assistance in failing to subpoena medical records. The
       Superior Court added: “[Horton] could have filed a PCRA
       petition long before now, claiming trial counsel’s
       ineffectiveness in not seeking to subpoena the medical
       records, and the records could have been subpoenaed at
       that time.” Horton, 48 A.3d 479.
     __________

        On January 30, 2006, around ten years after the judgments
     of sentence became final,2 [Horton] filed his second PCRA
     petition, raising an after-discovered facts time bar exception.
     On March 20, 2007, the trial court issued notice under
     Pa.R.Crim.P. 907 of its intention to dismiss the petition as
     untimely.     On March 11, 2009, [Bruno] was appointed to
     represent [Horton]. On December 8, 2009, [Bruno] filed an
     amended PCRA petition on behalf of [Horton], raising additional
     claims to the time bar exception. On May 4, 2010, the trial court
     issued a Rule 907 notice of its intention to dismiss the amended
     petition as without merit. On June 1, 2010, [Horton] filed a
     response, alleging that [Bruno] rendered ineffective assistance in
     his amended petition. The trial court dismissed the petition on
     September 16, 2010. On October 18, 2010, [Horton] appealed,
     contending that, among other things, his “after-discovered”
     medical records of his knee injury, which occurred about a
     month before the crime, entitled him to a time bar exception.
     On April 25, 2011, [Horton] filed a pro se motion seeking the
     removal of [Bruno] and a Grazier hearing.                   [See]
     Commonwealth v. Grazier, 713 A.2d 81 (1998). Following the
     Grazier hearing, the trial court granted [Horton’s] request and
     permitted [Bruno] to withdraw. On April 17, 2012, the Superior
     Court affirmed the trial court’s dismissal of the second PCRA
     petition, reasoning that the petition was untimely, no valid
     exception to the time bar existed, and the remaining issues were
     meritless. Horton, 48 A.3d 479, appeal denied, 60 A.3d 535

                                   -3-
J-S27018-17


     (Pa. 2012). In or around April 2012, [Horton] made a complaint
     to the Disciplinary Board of the Supreme Court of Pennsylvania
     (“Disciplinary Board”) regarding [Bruno].3
     __________
        2
          [Horton’s] judgment of sentence became final on April
        19, 1996 pursuant to 42 Pa.C.S. § 9545(b)(3) and
        Pa.R.A.P. 1113. Horton, 48 A.3d 479.
        3
         In May 2013, the Office of Disciplinary Counsel ("ODC")
       charged [Bruno] with violations of the Rules of Professional
       Conduct, arising out of eleven separate claims against him.
       See Disciplinary Board File No. 180 DB 2011 (Pa. 2014).
       On July 18, 2014, the Disciplinary Board recommended the
       suspension of [Bruno’s] license to practice law for one year
       and one day, with probation of three years, subject to
       conditions. On November 13, 2014, upon consideration of
       the Report and Recommendation of the Disciplinary Board,
       the Supreme Court suspended [Bruno] from the practice of
       law for a period of two years retroactive to February 26,
       2013, followed by a two–year probation [term] after
       reinstatement, subject to conditions. See Supreme Court
       Order dated November 13, 2014.
     __________

             On February 26, 2013, [Horton] filed the instant action
     against [Bruno] in assumpsit (Count I) and in trespass (Count
     II), alleging that [Bruno’s] ineffective assistance in his criminal
     matter constituted breach of contract and negligence.4 Most
     significantly, the complaint averred that [Bruno] failed to obtain
     and attach affidavits of his treating medical providers and failed
     to subpoena medical records5 to his amended PCRA petition,
     which, according to [Horton], prevented him from proving his
     innocence. After the case was transferred from arbitration to
     trial, [Bruno] filed an answer with new matter on July 14, 2014,
     noting that (1) [Horton] never entered into a contractual
     relationship with [Bruno], and the law does not recognize a
     contractual relationship between court-appointed counsel and
     defendant; (2) that [Horton] raised the issue of getting medical
     treatment for his knee injury at trial; (3) that [Horton], in his
     first PCRA petition, did not raise the issue of his original trial
     counsel’s failure to secure his treating medical providers or
     medical records; and (4) that [Horton] cannot show that but for
     [Bruno’s] negligence (i.e. producing an allegedly defective
     petition), [Horton] would have prevailed because one month

                                    -4-
J-S27018-17


     prior to the crime, [Horton’s] medical records indicate that he
     was walking with a normal gait. On August 6, 2014, [Horton]
     filed his reply, stating that (1) a contractual obligation was
     formed once [Bruno] accepted the appointment and entered his
     appearance; (2) that the knee injury defense was unavailable at
     trial because the hospital could not locate his file; (3) that it
     would have been inappropriate and frivolous to allege that his
     original trial counsel was ineffective for failing to secure his
     medical records; (4) that [Horton] could have prevailed in his
     second PCRA petition if [Bruno] followed a “multi-tier process,”
     which we summarize here as good lawyering practices; and (5)
     that the outcome of the trial would have been different if his
     complete medical records along with testimony of his treating
     medical providers and his employer6 were included in his second
     PCRA petition. In [Horton’s] new matter, he raised for the first
     time the enforcement of default judgment against [Bruno]. On
     August 25, 2014, [Bruno] replied, claiming noncompliance with
     the rules.
     __________
       4
         On March, 25, 2013, [Horton] initiated his third PCRA
       petition, requesting discovery and DNA testing. On June 3,
       2015, the trial court issued a Rule 907 notice of its
       intention to dismiss the amended petition as untimely.
       5
         Alternatively, [Bruno] failed to attach the copies of
       [Horton’s] medical records obtained by [Horton] at the
       prison medical department.
       6
         [Horton] also avers that [Bruno] failed to include the
       testimony of his former supervisor Norman Whitest, who
       witnessed [Horton’s] knee injury at work that occurred on
       or about April 26, 1993. The Superior Court noted that
       [Horton] could have raised the knee injury defense at trial
       without the medical records, presenting Norman Whitest
       as a witness to suggest that [Horton] could not have
       committed the crime. Horton, 48 A.3d 479, n.4.
     __________

           On January 13, 2016, [Horton] filed a motion to compel
     production of documents,7 wherein he sought to discover
     [Bruno’s] documents exchanged with the Disciplinary Board and
     with Attorney Sondra Rodrigues, who was counsel for a co-
     defendant in the criminal matter; and [Bruno’s] counseling and
     treatment records. [Bruno] answered, arguing, inter alia, that


                                   -5-
J-S27018-17


     the requested items were irrelevant. [Horton] argued that the
     items were relevant and pointed out that [Bruno] waived his
     objections since his answer was untimely and failed to provide
     any reason for the delay. This court denied the motion on May
     24, 2016.
     __________
        7
         The request for production of documents was served
       around June 30, 2015. [Horton] followed up with a letter
       requesting compliance around October 10, 2015.
     __________

            On April 5, 2016, [Bruno] moved for summary judgment
     after discovery was completed and pleadings closed.
     Specifically, [Bruno] argued that summary judgment was
     appropriate because (1) there was no contractual relationship
     between [Horton] and [Bruno], and (2) since the second PCRA
     petition was held to be untimely by both the trial court and the
     Superior Court, [Horton] could not have committed malpractice
     for failing to include the medical evidence. On April 29, 2016,
     [Horton] filed an answer in opposition to the motion for
     summary judgment denying [Bruno’s] averments because a
     contractual relationship allegedly existed and the Superior
     Court’s holding on his second PCRA petition would have been
     different but for [Bruno’s] negligence.     On May 18, 2016,
     [Horton] moved for summary judgment, arguing that no genuine
     issues of materials facts exist in his two claims. This court
     granted summary judgment in favor of [Bruno] on June 10,
     2016. [Horton] thereafter filed his notice of appeal on July 12,
     2016 and timely issued his Pa.R.A.P. 1925(b) statement of
     errors complained of on appeal on August 25, 2016. [Horton’s]
     motion for summary judgment was denied on September 13,
     2016.

Trial Court Opinion, 9/16/2016, at 1-6 (most citations omitted).

     In his first issue on appeal, Horton argues the trial court erred or

abused its discretion in denying his motion to amend his complaint “to

introduce new matters and evidence in support [] thereof, which was

unavailable at the time the Complaint was filed[,]” namely, the disciplinary

proceedings against Bruno. Horton’s Brief at 8. He asserts that while leave


                                    -6-
J-S27018-17



to amend lies within the discretion of the trial court, it should be liberally

granted. See id. Moreover, Horton contends that to the extent his motion

was defective in that he did not seek court approval to amend, the trial court

should have permitted him the opportunity to correct any defect before

denying the motion. See id. at 10. Furthermore, he maintains any delay in

filing the motion was attributable to Bruno, since he “never divulged the

existence of the information in those documents in response to the

complaint[.]” Id.

      Pennsylvania Rule of Civil Procedure 1033 provides, in relevant part, a

party may amend a pleading at any time, “either by filed consent of the

adverse party or by leave of court[.]” Pa.R.C.P. 1033(a).

      Our standard of review of a trial court’s order denying a plaintiff
      leave to amend its complaint, … permits us to overturn the order
      only if the trial court erred as a matter of law or abused its
      discretion. The trial court enjoys “broad discretion” to grant or
      deny a petition to amend. … Although the trial court generally
      should exercise its discretion to permit amendment, … where a
      party will be unable to state a claim on which relief could be
      granted, leave to amend should be denied.

The Brickman Grp., Ltd. v. CGU Ins. Co., 865 A.2d 918, 926–927 (Pa.

Super. 2004) (internal citations omitted).    “An abuse of discretion occurs

when a trial court ... overrides or misapplies the law, or exercises judgment

which is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill will.” Keller v. Mey, 67 A.3d 1, 7 (Pa. Super. 2013).

      Our review reveals no abuse of discretion on the part of the trial court.

First, we note Horton did not seek either Bruno’s consent, or the court’s


                                     -7-
J-S27018-17



permission, to amend his complaint. Rather, on April 29, 2016, more than

three years after he initiated the lawsuit, Horton filed a document titled,

“Motion Introducing Third, Fourth and Fifth New Matters.”            See Motion

Introducing Third, Fourth and Fifth New Matters, 4/29/2016.            The “new

matters” he sought to introduce were documents from Bruno’s disciplinary

proceedings, and, in particular Bruno’s stipulation to the facts underlying the

disciplinary complaint.   See id. at 1.     Horton asserted these stipulations

“prove[d] conclusively” the allegations in the legal malpractice complaint,

and entitled him to a judgment “in the sum of [$]75,000.00.” Id. at 3, 9.

See also id., Exhibit A, Supplemental Joint Stipulation of Facts in Bruno’s

disciplinary proceedings, 3/20/2013, at ¶¶ 7-93.

      Rule 1033 explicitly requires either “filed consent of the adverse party”

or “leave of court” before a party may amend his complaint. Pa.R.C.P.

1033(a). Because Horton obtained neither, the trial court acted well within

its discretion in denying his belated amendment. Nevertheless, even if we

presume the trial court should have considered Horton’s pro se filing as a

petition seeking permission to amend, we still would conclude he is entitled

to no relief. As will be discussed infra, Bruno’s stipulations in the disciplinary

proceedings do not prove Horton’s legal malpractice claim.             Therefore,

because the proposed amendments do not “state a claim on which relief

could be granted,” the trial court did not abuse its discretion in denying




                                      -8-
J-S27018-17



Horton permission to amend the pleadings.4                  The Brickman Grp., Ltd.,

supra, 865 A.2d at 927. Accordingly, Horton’s first claim fails.

       Second, Horton argues the trial court erred or abused its discretion in

denying his motion to compel the production of documents.                     See Horton’s

Brief at 12. By way of background, in June of 2015, Horton served Bruno

with a request for the production of documents including any and all

affidavits, documents, statements, and correspondence related to Bruno’s

disciplinary     proceedings      and       mental    health    treatment,      and    any

correspondence between Bruno and Horton’s co-defendant’s counsel, Sondra

Rodriques,     Esq.,   related    to    Horton’s     appeal    or   Bruno’s    disciplinary

proceeding.      See Motion to Compel Production of Documents, 1/13/2016,

Exhibit A, Request for Production of Documents, dated 6/30/2015, at

unnumbered 2-5. When Bruno failed to respond to the discovery request,

Horton    sent    another    letter    in   October    of    2015   requesting     Bruno’s

compliance.      After Bruno continued to ignore the request, Horton filed a

motion to compel on January 13, 2016. Bruno filed a response on April 6,



____________________________________________


4
  We note the judge who considered the proposed amendment was not the
same judge who ruled upon the motion to compel and summary judgment
motion. See Order, 5/26/2016. Therefore, the trial court, in its opinion,
presumed the amendment was not permitted because it was “improper
under Pa.R.C.P. 1033 and untimely.” Trial Court Opinion, 9/16/2016, at 17.
Nevertheless, we may affirm the decision of the trial court on any basis.
See Richmond v. McHale, 35 A.3d 779, 786 n.2 (Pa. Super. 2012).




                                             -9-
J-S27018-17



2016, and the trial court subsequently denied the motion by order dated

May 24, 2016.

       Horton contends the court’s denial of his motion to compel was an

abuse of discretion or error of law. First, Horton asserts Bruno waived any

objection to the motion to compel because he did not file a response until

“130 days elapsed.”         Horton’s Brief at 14, citing Pa.R.C.P. 4006(a)(2).5

Second, he maintains the information he requested regarding Bruno’s

disciplinary proceedings was relevant because the specific details underlying

the suspension “are closely related to the issues raised in [the] complaint

and provide irrefutable proof of the material facts in this case.” Id. at 16.

Third, Horton insists his requests were not overbroad, and the documents he

sought regarding Bruno’s mental health treatment were “relevant to proving

… [Bruno] was negligent in handling his PCRA appeal and was the proximate

cause in him losing that cause of action.” Id. at 17. Fourth, he claims the

information he sought regarding Bruno’s correspondence with Horton’s co-

defendant’s counsel would prove Bruno “obtained information from [the

other] attorney and, negligently, spliced it together into the amended

petition he filed, which caused it to be insufficient and fatally flawed.” Id.



____________________________________________


5
  Rule 4006 provides, in relevant part, a party answering interrogatories
“shall serve a copy of the answers, and objections if any, within thirty days
after the service of the interrogatories.” Pa.R.C.P. 4006(a)(2).




                                          - 10 -
J-S27018-17



      Our review of a trial court order regarding discovery matters is well-

settled:

       The trial court is responsible for “[overseeing] discovery
      between the parties and therefore it is within that court’s
      discretion to determine the appropriate measure necessary to
      insure adequate and prompt discovering of matters allowed by
      the Rules of Civil Procedure.”    Pennsylvania Rule of Civil
      Procedure 4003.1 states:

           Rule 4003.1 Scope of Discovery Generally. Opinions and
           Contentions

           (a) Subject to the provisions of Rules 4003.2 to 4003.5
           inclusive and Rule 4011, a party may obtain discovery
           regarding any matter, not privileged, which is relevant to
           the subject matter involved in the pending action, whether
           it relates to the claim or defense of the party seeking
           discovery or to the claim or defense of any other party ....

           (b) It is not ground for objection that the information
           sought will be inadmissible at trial if the information
           sought appears reasonably calculated to lead to the
           discovery of admissible evidence.

      Pa.R.C.P. 4003.1(a)(b). Generally, discovery “is liberally allowed
      with respect to any matter, not privileged, which is relevant to
      the cause being tried.”

PECO Energy Co. v. Ins. Co. of N. Am., 852 A.2d 1230, 1233 (Pa. Super.

2004).

      The trial court disposed of this issue as follows:

            First, [Horton] requested all documents sent to or received
      from the Disciplinary Board by [Bruno] before, during, and after
      his suspension. Since [Bruno’s] disciplinary proceedings and
      subsequent suspension were admitted, the production of
      documents relating to those events were not relevant to any
      issue which would have affected a material part of [Horton’s]
      cause of action. Further, this request was overbroad, given the
      drawn-out timeframe.         Finally, the relevant documents


                                      - 11 -
J-S27018-17


     concerning the disciplinary proceedings and suspension were
     available to the public since November 2014.

            Next, [Horton] requested all documents pertaining to in-
     patient or out-patient counseling and treatment of [Bruno]
     related to the suspension.       This request was overbroad,
     irrelevant, and normally would not lead to admissible evidence.

           Additionally, [Horton] requested all documents submitted
     by other complainants against [Bruno] in the same disciplinary
     proceedings.     [Horton’s] relevancy arguments for this far-
     reaching request did not explain how these documents could
     provide any relevant information to his case. This request was
     denied for the same reasons set forth above.

           Lastly, [Horton] requested all correspondence and
     documents exchanged with Attorney Sondra Rodrigues related to
     [Bruno’s] representation of [Horton]. This request was denied
     for the same reasons set forth in the denial of [Horton’s] first
     request related to the disciplinary proceedings and suspension.

Trial Court Opinion, 9/16/2016, at 16.

     Our review reveals no error of law or abuse of discretion committed by

the trial court. First, we note Bruno’s failure to respond in a timely manner

to Horton’s requests for the production of documents or motion to compel

does not automatically entitle Horton to relief.       “[T]he imposition of

sanctions always is subject to a balancing test and a weighing of various

factors.” McGovern v. Hosp. Serv. Ass'n of Ne. Pennsylvania, 785 A.2d

1012, 1019 (Pa. Super. 2001).

     Second, we agree with the trial court’s conclusion that Horton’s

requests were overbroad, and much of the information he sought would

have been irrelevant to the present action. Essentially, Horton sought all

documents and records which were in any way related to the disciplinary

proceedings.    As the trial court explained, the “relevant documents

                                   - 12 -
J-S27018-17



concerning the disciplinary proceedings and suspension were available to the

public since November 2014.”      Id.   In a joint stipulation of facts, Bruno

admitted he failed to respond promptly (if at all) to Horton’s letters and

requests for information about the PCRA case, and, in doing so, violated the

Pennsylvania Rules of Professional Conduct. See Motion Introducing Third,

Fourth and Fifth New Matters, 4/29/2016, Exhibit A, Supplemental Joint

Stipulation of Facts in Bruno’s disciplinary proceedings, 3/20/2013, at ¶ 93

(Bruno admitting he violated Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and

8.4(d), in his representation of Horton). However, as will be discussed infra,

Bruno’s failings do not prove he committed legal malpractice. Indeed, even

“a finding of ineffectiveness is not tantamount to a finding of culpable

conduct” in a legal malpractice action.      Bailey v. Tucker, 621 A.2d 108,

115 n.14 (Pa. 1993). We agree with the trial court’s conclusion that none of

the information Horton requested would have proven the allegations in his

complaint. Accordingly, no relief is warranted.

      In his third and final claim, Horton contends the trial court erred in

granting Bruno’s motion for summary judgment. Specifically, he argues (1)

the court’s ruling was premature because it was made before Bruno was

required to file an answer to Horton’s motion for summary judgment, and

(2) there were genuine issues of material fact in dispute.

      When reviewing an order of the trial court granting summary

judgment, we must bear in mind the following:




                                    - 13 -
J-S27018-17


      Summary judgment is appropriate where the record clearly
      demonstrates there is no genuine issue of material fact and the
      moving party is entitled to judgment as a matter of law.
      Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812
      A.2d 1218, 1221 (2002); Pa. R.C.P. No. 1035.2(1). When
      considering a motion for summary judgment, the trial court must
      take all facts of record and reasonable inferences therefrom in a
      light most favorable to the non-moving party.            Toy[ v.
      Metropolitan Life Ins. Co.], 928 A.2d [186,] 195 [(Pa. 2007)].
      Whether there are no genuine issues as to any material fact
      presents a question of law, and therefore, our standard of review
      is de novo and our scope of review plenary.          Weaver v.
      Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899,
      902–03 (2007).

Estate of Agnew v. Ross, 152 A.3d 247, 259 (Pa. 2017).

      First, Horton argues the trial court erred in granting Bruno’s motion for

summary judgment before the time expired for Bruno to file an answer to

Horton’s motion for summary judgment.        He claims the court’s premature

ruling was prejudicial because “it deprived him of the answers to the

averments he forwarded in his summary judgment motion, which would

have caused the court to rule in his favor[.]” Horton’s Brief at 19.

      The trial court disposed of this argument as follows:

             This court ruled on [Bruno’s] motion for summary
      judgment after [Horton] filed his response. [Bruno] did not have
      to file a response to [Horton’s] motion, as this court understood
      and was aware of the legal positions of the parties upon review
      and consideration of all pleadings and affidavits. There appears
      to be no authority on point that mandates a trial court cannot
      dispose of a motion for summary judgment and its subsequent
      response presently before the court until a non-movant filed his
      own motion for summary judgment and the opposing party
      responds.

Trial Court Opinion, 9/16/2016, at 13.




                                    - 14 -
J-S27018-17



      We find no basis to disagree.      Horton’s attempt to find statutory

support for his argument in the Pennsylvania Rules of Civil Procedure fails.

Although Rule 1035.3 requires an adverse party to file a response to a

motion for summary judgment, and the court may enter judgment against a

party who does not respond, the Rule does not contemplate the facts herein,

where the trial court disposes of a party’s motion for summary judgment

while a cross summary judgment motion is pending.        As the court stated

above, Horton provides no support for his claim that the court’s actions were

improper. Moreover, the trial court was aware of all the relevant issues at

the time it granted Bruno’s motion. Accordingly, no relief is warranted.

      Second, Horton argues the trial court erred or abused its discretion in

granting Bruno’s motion when material facts were in dispute. See Horton’s

Brief at 20.    With regard to his assumpsit claim, Horton contends that

pursuant to Fiorentino v. Rappaport, 693 A.2d 208 (Pa. Super. 1997),

appeal denied, 701 A.2d 577 (Pa. 1997), once counsel and a defendant

enter into an attorney/client relationship, even if the attorney is court-

appointed, the client may sue for breach of contract or negligence. See

id. at 21-22.    Furthermore, with regard to his negligence claim, Horton

maintains he “offered irrefutable proof that a) [Bruno] engaged in negligent

misconduct in his     representation of [Horton], and      b) his   negligent

misconduct was the proximate cause of [Horton] losing his PCRA appeal.”

Id. at 20.




                                    - 15 -
J-S27018-17



      Again, our review of the record, the parties’ briefs, and the relevant

case law reveals Horton is entitled to no relief. First, we agree with the trial

court’s determination that Horton cannot maintain a breach of contract

action against Bruno because Bruno was court-appointed, and “[Horton]

never retained [Bruno’s] services and had no contract with [Bruno].” Trial

Court Opinion, 9/16/2016, at 10. See Moore v. McComsey, 459 A.2d 841,

844 (Pa. Super. 1983) (finding plaintiff was subject to two-year statute of

limitations for negligence action in legal malpractice claim when counsel had

been court-appointed and appellate court “deem[ed] it unrealistic to attempt

to confer upon appellant the status of a third party beneficiary to a contract

between the Commonwealth and appointed counsel.”).             See also Ibn-

Sadliika v. Riester, 551 A.2d 1112, 1114 n.2 (Pa. Super. 1988) (“It has

already been established that a contract of employment does not exist

between a defendant and court-appointed counsel, and that a legal

malpractice   action   against   court-appointed   counsel   will   lie   only   in

trespass.”), citing Moore, supra.

      Moreover, Horton’s reliance on Fiorentino, supra, is misplaced.            In

that case, the purportedly negligent attorney was hired by the plaintiff to

represent him in a civil action; he was not a court-appointed attorney in a




                                     - 16 -
J-S27018-17



PCRA case.      This factual distinction is dispositive.   Accordingly, Horton’s

breach of contact action fails.6

       With regard to Horton’s negligence claim, we note the Supreme Court

in Bailey, supra, outlined the requisite elements for a legal malpractice

action sounding in trespass:

       [W]e hold that 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 acquittal or a complete dismissal of the charges.

       (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;
____________________________________________


6
  Moreover, Horton’s reliance on the Pennsylvania Supreme Court’s decision
in Reese v. Danforth, 406 A.2d 735 (Pa. 1979), is also misplaced. Horton
quotes the holding of the Reese Court that “once the appointment of a
public defender in a given case is made, his public or state function ceases
and thereafter he functions purely as a private attorney concerned with
servicing his client … [and] he ought to be subject to liability for tortious
conduct.” Id. at 739. However, the Reese Court was concerned only with
an attorney’s liability for negligent conduct; it did not consider whether a
client may maintain a breach of contract action against a court-appointed
attorney.




                                          - 17 -
J-S27018-17


      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.

Bailey, supra, 621 A.2d at 114–115 (footnotes omitted).

      In the present case, the trial court found Horton failed to establish the

third prong of the Bailey test. The court opined:

      [T]he record fails to support the finding that [Horton] “did not
      commit any unlawful acts with which he was charged as well as
      any lesser offenses included therein.” [Bailey, supra, 621
      A.2d] at 115 n.12. We find no facts from which this court could
      conclude that [Horton] was innocent of all the criminal charges
      filed against him. Nor has [Horton] pleaded and proved that
      [Bruno’s] culpably negligent representation was the cause of the
      dismissal of his second PCRA petition in the sense that “but for”
      [Bruno’s] misconduct, [Horton] would have obtained an acquittal
      or complete dismissal of the criminal charges. [Horton’s] failure
      to timely raise or establish a valid after-discovered facts time bar
      exception to his second PCRA petition was not because of
      [Bruno’s] negligence, but due to [Horton’s] failure to raise the
      medical conditions defense in his first PCRA petition.          See
      Horton, 48 A.3d 479 (“Since appellant’s petition was untimely
      and no valid exception to the time bar of the PCRA exists, the
      PCRA court was without jurisdiction to review the petition …
      [T]here was nothing counsel could have done or avoided doing
      that would have changed the outcome.”). Absent fulfillment of
      the third prong for legal malpractice of criminal defense
      attorneys, [Horton] cannot establish criminal malpractice against
      [Bruno].

Trial Court Opinion, 9/16/2016, at 11-12.

      Again, we find no error or abuse of discretion on the part of the trial

court. Horton insists the third prong of the Bailey test “must be modified to

‘but for’ the attorney’s conduct, the plaintiff would have obtained an

‘evidentiary hearing’ or ‘new trial.’” Horton’s Brief at 22. He further claims

the trial court should have considered “what may have happened had



                                     - 18 -
J-S27018-17



[Bruno] not been negligent.”          Id. at 23.   We disagree.   The language of

Bailey is clear:      in order to obtain relief, Horton must establish Bruno’s

“culpable conduct was the proximate cause” of his injury, that is, “‘but for’

[Bruno’s] conduct, [Horton] would have obtained an acquittal or a complete

dismissal of the charges.”       Bailey, supra, 621 A.2d at 115. This, Horton

failed to do.

       Nevertheless, we find that even if we considered Horton’s claims under

the relaxed standard he proposes - that is, whether Bruno’s negligence was

the proximate cause of Horton’s failure to obtain an evidentiary hearing – we

would still conclude Horton is entitled to no relief.       Horton attempted to

overcome the PCRA’s time bar by demonstrating the applicability of the

newly discovered facts exception codified at Section 9545(b)(1)(ii). 7       This

claim was based upon recently received medical records that, he asserts,

demonstrates he suffered from an injury shortly before the crime that would

have rendered him “unable to participate in the crime.” Horton, supra, 48

A.3d 479 (unpublished memorandum at 9).                 In his legal malpractice

complaint, Horton maintained the PCRA appellate court denied relief due, in

part, to Horton’s failure to substantiate that claim with actual evidence.

Horton attributes the omission to Bruno’s failure to obtain and attach to the


____________________________________________


7
  See 42 Pa.C.S. § 9545(b)(1)(ii) (“[T]he facts upon which the claim is
predicated were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence”).



                                          - 19 -
J-S27018-17



amended petition the previously misplaced medical records, and affidavits

from Horton’s treating physicians.    See Complaint, 2/26/2013, at ¶ 68(j)-

(k).   However, even if Bruno had secured the relevant documents, Horton

would not have been able to establish a time-bar exception.

       The newly discovered facts time-bar exception requires a defendant to

plead and prove: “1) the facts upon which the claim was predicated were

unknown and 2) could not have been ascertained by the exercise of due

diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)

(internal punctuation and citation omitted; emphasis in original).       The

Supreme Court has made clear that “[t]he focus of the exception is on [the]

newly discovered facts, not on a newly discovered or newly willing source for

previously known facts.” Commonwealth v. Marshall, 947 A.2d 714, 720

(Pa. 2008) (quotation omitted).

       Here, the fact upon which Horton’s PCRA claim was predicated was his

knee injury, which he claims would have rendered him unable to commit the

crime. However, Horton knew he had injured his knee at the time of trial.

The medical records and doctor affidavits, which he contends would have

corroborated his injury, constitute a “newly discovered or newly willing

source for previously known facts.”      Id.   See also Commonwealth v.

Johnson, 945 A.2d 185, 190 (Pa. Super. 2008) (newly discovered witnesses

willing to testify the victim owed defendant’s co-conspirator money did not

satisfy the newly discovered facts exception because defendant admitted

that prior to trial, he knew victim owed money to his co-conspirator; thus,

                                     - 20 -
J-S27018-17



fact was not newly discovered), appeal denied, 956 A.2d 433 (Pa. 2008).

Therefore, because Horton could not have overcome the PCRA’s time-bar

even if Bruno had obtained the absent documents, Bruno’s ineffectiveness

was not the proximate cause of Horton’s injury. Accordingly, the trial court

properly granted Bruno’s motion for summary judgment.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2017




                                   - 21 -
