J. A18016/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANN L. MARTIN AND JAMES L. MARTIN :          IN THE SUPERIOR COURT OF
                                  :                PENNSYLVANIA
                 v.               :
                                  :
ADRIENNE L. BAILEY, DONALD A.     :
BAILEY, SHERI D. COOVER,          :
LAW OFFICES OF DONALD A. BAILEY, :
AND ESTATE OF LEAH L. PLACENIK    :               No. 2049 MDA 2015
                                  :
APPEAL OF: JAMES L. MARTIN        :


             Appeal from the Order Entered November 2, 2015,
              in the Court of Common Pleas of Dauphin County
                   Civil Division at No. 2010-CV-04624-CV


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 13, 2016

     Ann L. Martin and James L. Martin appeal1 from the order entered

November 2, 2015, dismissing their complaint with prejudice. We affirm.

     The trial court has summarized the history of this matter as follows:

                 This action was commenced by the filing of a
           Complaint on April 19, 2010. The case sounded in
           legal malpractice and alleged that Defendants
           Donald Bailey and Sheri Coover were negligent in
           their representation of Plaintiffs arising out of a
           lawsuit against The Honorable Samuel Kline and
           court reporter Lisa Merkel for allegedly tampering
           with a transcript in the Orphan’s Court case of

* Former Justice specially assigned to the Superior Court.
1
  James L. Martin filed a notice of appeal on November 24, 2015.
(Docket #73.) On December 2, 2015, Ann L. Martin joined the appeal.
(Docket #74.)
J. A18016/16


          In Re: Estate of Josephine A. Martin (1997-588).
          Each of the Defendants filed Preliminary Objections
          to Plaintiffs’ Complaint on or about May 19, 2010,
          alleging, among other things, that Plaintiff[s’] action
          was barred by the applicable statute of limitations.
          Plaintiffs filed Preliminary Objections to each of
          Defendants’ Preliminary Objections on July 13, 2010,
          asserting that Defendants improperly raised the
          statute of limitations in their Preliminary Objections
          instead of in a New Matter.[Footnote 1]

                [Footnote 1] None of the parties have
                ever filed a Certificate of Readiness
                certifying that Plaintiffs’ Preliminary
                Objections to Defendants’ Preliminary
                Objections or Defendants’ individual
                Preliminary Objections to Plaintiffs’
                Complaint were ready to be decided by
                the     Court,  so    these    Preliminary
                Objections remain outstanding.       As a
                result, none of the Defendants has filed
                an Answer to Plaintiffs’ Complaint, and
                the pleadings are not yet closed.

                 On September 17, 2012, as a result of two
          years of inactivity on the docket, this Court entered
          a purge Order requiring the filing of a statement of
          intention to proceed or the case would be dismissed.
          Plaintiffs filed a Statement of Intention to Proceed on
          October 26, 2012 and thereafter filed a joint status
          report on November 15, 2012. On December 19,
          2012, counsel for Plaintiffs, Derek W. Cummings,
          sought leave to withdraw. A hearing was held on
          February 21, 2013, after which this Court entered an
          Order       on      April  19,     2013,      permitting
          Attorney Cummings to withdraw as counsel for
          Plaintiffs. This Order also provided that Plaintiffs
          shall retain new counsel within thirty days of the
          date of the Order, and Attorney Cummings shall
          provide the Certificates of Merit sought by opposing
          counsel upon request.

               On May 21, 2013, James L. Martin entered his
          appearance pro se. That entry of appearance was


                                   -2-
J. A18016/16


          the last activity on the docket until May 29, 2015, at
          which time this Court entered another purge Order,
          requiring Plaintiffs to file a Statement of Intention to
          Proceed. Plaintiff James Martin filed his Statement of
          Intention to Proceed on July 21, 2015, and Plaintiff
          Ann Martin filed her Statement on July 24, 2015.
          Defendants Donald A. Bailey and Adrienne L. Bailey
          filed a Status Report on August 18, 2015, and
          Plaintiffs and Defendant Coover filed a Joint Status
          Report on August 20, 2015[.]

                 In response to the status reports, and in
          accordance with the bench orders issued at the
          February 21, 2013 Hearing, on August 20, 2015, this
          Court entered a Case Management Order wherein we
          entered a Rule to Show Cause why this case should
          not be dismissed for Plaintiffs’ failure to comply with
          Rules of Court in the following particulars: a) why
          Plaintiffs did not file an Amended Complaint; b) why
          Plaintiff James L. Martin filed a partial summary
          judgment, declared “moot” by Judge Clark, while he
          was represented by an attorney; c) why Adrienne L.
          Bailey, “Estate of Leah Placenick” and “Law Offices of
          Donald A. Bailey” should not be dismissed from this
          case; and d) why all claims of Ann L. Martin should
          not be dismissed from this case particularly
          explaining if she is represented by Attorney Chad J.
          Julius. The Rule was returnable by September 30,
          2015, and Defendants were given until October 15,
          2015 to respond if they so desired.

                 On September 30, 2015, Plaintiff James L.
          Martin filed an Answer to this Court’s August 20,
          2015 Rule to Show Cause.[Footnote 2] In response
          to why he did not file an Amended Complaint,
          Plaintiff asserted that the parties abandoned the
          re-pleading trigger, and the pleading deficiencies
          may be remedied with the filing of proofs, briefing as
          required, and moving to conform the pleadings to
          the proofs. Plaintiff also cited to other reasons as
          evident from the Motions for Summary Judgment.
          Plaintiff did not cite to any case law that supports his
          statement that pleading deficiencies may be
          remedied with the filing of proofs and moving to


                                   -3-
J. A18016/16


             conform the pleadings to the proofs. Plaintiff did not
             provide a sufficient legal or factual explanation as to
             why he did not file an Amended Complaint, as
             required by this Court’s August 20, 2015 Order, and
             his Complaint was dismissed with prejudice, by
             Order dated October 30, 2015.

                   [Footnote 2] Plaintiff Ann L. Martin failed
                   to file a response to this Court’s Rule to
                   Show Cause. As such, her claims are
                   properly dismissed for failure to comply
                   with an Order of Court.

Trial court opinion, 1/22/16 at 1-3.

      This    timely   appeal    followed.       Appellants      complied   with

Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a) opinion.

      As described above, appellants did not file a meaningful response to

the trial court’s show cause order, including why they failed to file an

amended complaint.       Appellants failed to provide any legal or factual

authority as to why the case should not be dismissed. Appellants’ cause of

action was clearly barred by the applicable statute of limitations.2




2
  All of appellants’ allegations relate to the defendants’ representation during
the years 2003-2005. (See plaintiffs’ complaint, 4/19/10 at 5-12; docket
#2.) Appellants filed their complaint on April 19, 2010, well outside the
statute of limitations for a legal malpractice action. See Wachovia Bank,
N.A. v. Ferretti, 935 A.2d 565, 570-571 (Pa.Super. 2007) (an action for
legal malpractice may be brought in either contract or tort; the two-year
limitations period applies to the negligence claim and the four-year
limitations period applies to the breach of contract claim); 42 Pa.C.S.A.
§§ 5524(3), 5525.


                                       -4-
J. A18016/16


      Regarding their motion for recusal,3 at the time the motion was filed,

the Honorable Bruce F. Bratton was the civil calendar judge, and the case

had not yet been assigned. Judge Bratton simply directed the parties to file

a status report. Judge Bratton denied the motion on August 5, 2015, stating

that, “Judge Bratton issued orders relating to termination of the case due to

inactivity in his capacity as civil calendar judge and has not been assigned

this case.”   (Order, 8/5/15 at 1; docket #49.)    Judge Bratton refused to

entertain the motion at that time. (Id.) Subsequently, after Judge Bratton

was assigned the case and issued the Rule to Show Cause, appellants did

not renew their motion to recuse.    As such, the matter could be deemed

waived.

      At any rate, even assuming that Judge Bratton should have stepped

aside because he represented appellants in the underlying case, this court

will not remand for assignment to a different judge where appellants failed

to comply with the August 20, 2015 Rule to Show Cause.        Judge Bratton

properly dismissed appellants’ complaint with prejudice and any remand

would be superfluous.

      Order affirmed.




3
  “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 moving
for recusal; there is a presumption that a judge has acted properly, bound


                                    -5-
J. A18016/16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/13/2016




by the oaths of his office and faithful to the requirements of an
unprejudiced, unbiased judiciary. Id.


                              -6-
