J-S76042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BENJAMIN DENNERLEIN                    :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 THOMAS KURT FUCHEL, SR.                :   No. 977 WDA 2018

               Appeal from the Order Entered June 5, 2018
  In the Court of Common Pleas of Beaver County Civil Division at No(s):
                              11110-2017

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                     FILED DECEMBER 31, 2018

     Benjamin Dennerlein (Appellant) appeals pro se from the order

sustaining the preliminary objections of Appellee Thomas Kurt Fuchel, Sr.

(Fuchel) to Appellant’s amended complaint, and dismissing the complaint with

prejudice. We affirm.

     The trial court summarized the facts and procedural history as follows:

        In June of 2009, [Appellant] was charged with homicide in
     connection with an incident that occurred in Freedom Borough,
     Beaver County, Pennsylvania in May of that year. Fuchel was a
     member of the Beaver County Public Defender’s Office at the time
     and was assigned to represent [Appellant] in his criminal case.
     The case was scheduled for a jury trial before the Honorable John
     Dohanich and the jury convicted [Appellant] of first-degree
     murder on August 3, 2010. On September 29, 2010, Judge
     Dohanich sentenced [Appellant] to life imprisonment without the
     possibility of parole.

       No post-sentence motions were filed, but a timely notice of
     appeal was filed with the Superior Court by [Appellant] himself on
     October 27, 2010. The . . . conviction was affirmed, by Opinion
     and Order of the Superior Court dated April 2, 2012. A timely
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      petition for allowance of appeal was presented to the Pennsylvania
      Supreme Court, which was denied by Order of the Supreme Court
      dated October 22, 2012. [Appellant] filed a timely pro se petition
      for post-conviction relief and Attorney Mitchell Shahen was
      appointed by the Court to represent [Appellant] in the post-
      conviction proceedings.      Attorney Shahen filed an Amended
      Petition for Post-Conviction Collateral Relief (“PCRA”) before the
      Honorable James Ross on April 7, 2014. Following a hearing and
      after receiving testimony from various witnesses, the PCRA
      [c]ourt denied [Appellant]’s petition and the Superior Court
      subsequently affirmed the denial in an unpublished memorandum
      opinion. By Order dated March 24, 2016, the Pennsylvania
      Supreme Court denied [Appellant]’s petition for allowance of
      appeal.

          Notwithstanding ultimately finding no merit in [Appellant]’s
      PCRA petition, the PCRA court recounted “troubling” events which
      occurred between Fuchel and [Appellant] at the Beaver County
      Jail just prior to trial. The court also found Fuchel to be ineffective
      for failing to cross-examine Commonwealth witnesses, but that
      the prejudice incurred did not meet the threshold required to
      overturn the verdict.

Trial Court Opinion, 6/5/18, at 1-3 (footnotes omitted).

      On January 11, 2018, Appellant filed a complaint against Fuchel in which

he raised a breach of contract claim based on allegations of legal malpractice,

and asserted that he was entitled to compensatory damages for Fuchel’s

performance as his attorney during his criminal trial.       On March 9, 2018,

Fuchel filed preliminary objections in the nature of a demurrer in which he

argued that Appellant’s breach of contract claim failed to state a claim upon

which relief could be granted. In response, on April 4, 2018, Appellant filed

an amended complaint. On April 13, 2018, Fuchel filed preliminary objections

to Appellant’s amended complaint. On June 5, 2018, the trial court issued a

memorandum opinion and order sustaining Fuchel’s preliminary objections

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and dismissing Appellant’s complaint with prejudice.         This timely appeal

followed.

      On appeal, Appellant presents the following issues for review:

      I. Did the trial court err in sustaining [Fuchel]’s preliminary
      objections in the nature of a demurrer by relying solely on the
      decisions in Moore v. McComsey, 459 A.2d 841 (Pa. Super.
      1983) and Ibn-Sadiika v. Riester, 551 A.2d 1112 (Pa. Super.
      1988) claiming [Appellant] cannot maintain a breach of contract
      action against [Fuchel], when [Fuchel] was a public defender,
      thereby creating de facto immunity?

      II. Does constitutional prohibition of a law impairing the obligation
      of contracts extend to an indigent, third party criminal defendant
      beneficiary, when to hold otherwise would induce a contracting
      party’s fraudulence?

Appellant’s Brief at 4.

      Appellant challenges the trial court’s decision to sustain Fuchel’s

preliminary objections and dismiss Appellant’s complaint with prejudice. The

standard of review of a challenge to a trial court’s decision to grant preliminary

objections is as follows:

          Our standard of review of an order of the trial court overruling
      or granting preliminary objections is to determine whether the
      trial court committed an error of law. When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.

         Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint.        When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.       Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases in
      which it is clear and free from doubt that the pleader will be unable
      to prove facts legally sufficient to establish the right to relief. If
      any doubt exists as to whether a demurrer should be sustained, it

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      should be resolved in favor of overruling the preliminary
      objections.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (quoting Haun

v. Cmty. Health Sys., Inc., 14 A.3d 120, 123 (Pa. Super. 2011)).

      In his first issue, Appellant argues that the trial court erred in

determining that he could not pursue a breach of contract claim against

Fuchel. He maintains that there was an implied contract between him and

Fuchel, and it would be inequitable to leave Appellant “with no remedy at law

and permit Fuchel to receive de facto immunity for his intentional misconduct”

at Appellant’s criminal trial. Appellant’s Brief at 18.

      In Bailey v. Tucker, 621 A.2d 108 (Pa. 1993), our Supreme Court

explained that in a criminal defense malpractice action, a plaintiff can maintain

an action in both trespass (professional negligence) and assumpsit (breach of

contract). Id. at 112, 115. Where a plaintiff seeks to bring a professional

negligence claim against a criminal defense attorney, the plaintiff must

establish the following:

      (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 aquittal or a complete dismissal of the charges.

      (4) As a result of the injury, the criminal defendant/plaintiff
      suffered damages.


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      (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;
      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.

Id. at 114-15 (footnotes omitted).

      Here, Appellant cannot, and indeed, did not bring a negligence claim

against Fuchel. Based on the failure of his ineffective assistance of counsel

claims before the PCRA court, Appellant cannot demonstrate that but for

Fuchel’s alleged misconduct, the jury would have acquitted him of his homicide

charges. See id. Instead, Appellant has raised a breach of contract claim

against Fuchel. With respect to assumpsit, or breach of contract claims, the

Bailey Court explained:

      This claim is a contract claim and the attorney’s liability in this
      regard will be based on terms of that contract. Thus, if an
      attorney agrees to provide his or her best efforts and fails to do
      so an action will accrue. Of course an attorney who agrees for a
      fee to represent a client is by implication agreeing to provide that
      client with professional services consistent with those expected of
      the profession at large.

             Thus, this cause of action proceeds along the lines of all
      established contract claims. It does not require a determination
      by an appellate court of ineffective assistance of counsel, nor does
      the client need to prove innocence.

Id. at 115.

      The trial court provided the following reasoning in support of its

determination that Appellant could not sustain a breach of contract claim

against Fuchel:


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          [Appellant] cannot maintain a breach of contract action against
      Fuchel because Fuchel was a public defender and [Appellant] had
      no contract with Fuchel, implied or otherwise, despite his
      arguments to the contrary. In Moore v. McComsey, the Superior
      Court held there was no contract of employment between
      appellant and his public defender, for counsel had been court
      appointed. 459 A.2d 841, 844 (Pa. Super. 1983). The 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.” Id. This sentiment was
      reiterated in Ibn-Sadiika v. Riester, where the court stated “[i]t
      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.” 551 A.2d 1112, 1114 n.2
      (Pa. Super. 1988), citing Moore, supra (emphasis added).
      Accordingly, [Appellant]’s breach of contract action must fail.

Trial Court Opinion, 6/5/18, at 7-8 (footnote omitted).

      We agree with the trial court’s rejection of Appellant’s breach of contract

claim and the rationale underlying the decision. As this Court has explicitly

stated, in both Moore and Riester, a criminal defendant may not maintain a

breach of contract action against court-appointed counsel (e.g., a public

defender).    Riester, 551 A.2d at 1114 n.2; Moore, 459 A.2d at 844.

Additionally, as the Commonwealth points out, this conclusion comports with

our Supreme Court’s decision in Bailey, which held that the damages

recoverable in a breach of contract action against a criminal defense attorney

are “limited to the amount actually paid for the services plus statutory

interest.”   Bailey, 621 A.2d at 115.       Because court-appointed counsel –

particularly public defenders – are not paid by their clients, a criminal

defendant cannot maintain a breach of contract claim against a public


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defender because there are no fees to recover. Therefore, the trial court did

not err in determining that Appellant’s breach of contract claim does not merit

relief.

          In his second issue, Appellant argues that the trial court’s failure to

recognize the existence of a contractual relationship between him and Fuchel

is “violative of State and Federal constitutional norms.” Appellant’s Brief at

23.   Although Appellant offers little in the way of a coherent argument in

support of this claim, from what we discern from the argument section of his

appellate brief, Appellant appears to argue that the trial court’s decision

creates “de facto immunity” for public defenders and treats indigent criminal

defendants differently than defendants who pay for and retain private counsel.

Id. at 22.

          We disagree. As Bailey makes clear, a criminal defendant bringing a

legal malpractice action may only use a breach of contract claim to recover

attorney fees “actually paid for the services plus statutory interest.” Bailey,

621 A.2d at 115. Thus, even if Appellant had retained Fuchel privately and

prevailed in his breach of contract clam, he would not be able to recover

damages beyond the fees he paid. To recover damages beyond fees paid in

a legal malpractice action, a plaintiff must prevail on a negligence claim. See

id. at 113. As the Bailey court explained:

          If a person is found guilty of a crime, and that person is indeed
          innocent of any degree of that crime, and it is established that the
          wrongful conviction was proximately caused by counsel’s gross
          dereliction in his duty to represent the defendant, only then will

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       the defendant be able to collect monetary damages. If a person
       is convicted of a crime because of the inadequacy of counsel’s
       representation, justice is satisfied by the grant of a new trial.
       However, if an innocent person is wrongfully convicted due to the
       attorney’s dereliction, justice requires that he be compensated for
       the wrong which has occurred.

Id.

       In this case, Appellant did not pay for Fuchel’s legal representation, and

therefore would have had to bring a professional negligence claim against

Fuchel to recover any damages.                 Appellant, however, did not raise a

negligence claim against Fuchel. Indeed, as noted above, such claim is not

available to Appellant because no court has determined that he is “an innocent

person [who was] wrongly convicted.”             See id.   We further note that this

decision may not foreclose relief for Appellant, who states that he has a

Habeas petition relating to his underlying criminal case pending in the United

States District Court for the Western District of Pennsylvania. Appellant’s Brief

at 18.   In the event Appellant prevails in federal court, it would open the

possibility for Appellant to bring a professional negligence claim against

Fuchel. Accordingly, we find no merit to Appellant’s second issue.

       Order affirmed.1 Motion denied.




____________________________________________


1  On November 29, 2018, Appellant filed a “Motion For Extension Of Time In
Lieu Of Need To File Reply Brief” in which he seeks additional time to review
Fuchel’s brief to determine whether he needs to file a reply brief. Based on
our disposition, we deny Appellant’s motion as moot.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2018




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