J-S31013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DANIEL STOVALL                          :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 KEVIN KALLENBACH                        :    No. 1683 WDA 2018

             Appeal from the Order Entered October 26, 2018
    In the Court of Common Pleas of Erie County Civil Division at No(s):
                             11399 of 2017


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                                FILED JULY 2, 2019

      Appellant, Daniel Stovall, appeals from the order entered on October

26, 2018, sustaining preliminary objections and dismissing, with prejudice,

Appellant’s legal malpractice complaint against his former court-appointed

criminal defense attorney, Kevin Kallenbach, Esquire (Attorney Kallenbach).

We affirm.

      The trial court summarized the facts and procedural history of this case

as follows:

      On May 15, 2017, [Appellant] filed a pro se civil [c]omplaint
      alleging that his former court[-]appointed criminal defense
      counsel, Kevin Kallenbach, [] committed legal malpractice.
      [Appellant’s] claim relates to Attorney Kallenbach’s representation
      of him during a two day criminal trial for driving under the
      influence [of controlled substances], [in] Erie County[.] The jury
      found [Appellant] guilty on June 10, 2015. On July 20, 2015, the
      trial court sentenced him to 14 to 28 months’ incarceration, within
      the standard range of the guidelines. [Appellant] appealed and
      [this] Court affirmed his judgment of sentence. [Appellant’s]
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     petition for allowance of appeal with the Pennsylvania Supreme
     Court was denied on February 15, 2017.

     On March 22, 2017[, Appellant] filed a petition pursuant to the
     Post Conviction [] Relief Act (PCRA) alleging ineffective assistance
     of counsel. [Appellant’s] PCRA claim was denied by the [PCRA]
     court on June 19, 2017, and affirmed by [this] Court on March 13,
     2018 in [an unpublished memorandum].

     Prior to the resolution of his PCRA appeal, [Appellant] filed the
     [subject] civil action for malpractice on May 15, 2017.
     [Appellant’s] pro se [c]omplaint failed to contain a [c]ertificate of
     [m]erit or a [n]otice to [p]lead. [Appellant] also failed to file a
     [c]ertificate of [m]erit, as required by Pa.R.C.P. [] 1042.3, within
     sixty (60) days of filing his [c]omplaint.

     On March 9, 2018, Attorney Anthony Rodriques, entered an
     appearance on behalf of [Appellant].          On March 19, 2018,
     Attorney Rodriques filed a [c]ertificate of [m]erit in which Attorney
     Rodriques acted as the certifying expert, as well as counsel of
     record. Attorney Rodriques also filed a [m]otion to [a]mend [the]
     [c]omplaint. On June 1, 2018, [the trial c]ourt struck the
     [c]ertificate of [m]erit pursuant to [] Parkway Corporation v.
     Edelstein, 861 A.2d 264 (Pa. Super. 2004) (both the spirit and
     the intent of [Pa.R.C.P.] 1042.3, requiring a certificate of merit,
     would be defeated [to] allow the same attorney to assume dual
     roles as both the attorney certifying that malpractice has occurred
     and the attorney hoping to attain pecuniary benefit as plaintiff’s
     legal counsel. To allow otherwise poses grave potential for an
     ethical conflict of interest).

     Appellant’s [m]otion to file an [a]mended [c]omplaint was
     granted. [Appellant’s] [a]mended [c]omplaint raised two counts
     against his former criminal trial counsel, Attorney Kevin
     Kallenbach. The first count was a legal malpractice claim based
     on a theory of breach of contract. The second count claimed a
     tort-based theory of intentional infliction of emotional distress.
     [Attorney Kallenbach] filed [p]reliminary [o]bjections to
     [Appellant’s] [a]mended [c]omplaint in the nature of a demurrer.
     On October 26, 2018, [the trial c]ourt granted [Attorney
     Kallenbach’s] [p]reliminary [o]bjections and dismissed the
     [a]mended [c]omplaint with prejudice [because Appellant] failed
     to state [] valid causes of action.

     On November 26, 2018, Appellant filed a [n]otice of [a]ppeal and
     on December 18, 2018, in response to [the trial c]ourt’s

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      [Pa.R.A.P.] 1925(b) [o]rder, Appellant filed a timely [c]oncise
      [s]tatement of [errors] [c]omplained of on [a]ppeal[. The trial
      court issued an opinion pursuant to Pa.R.A.P. 1925(a) on January
      14, 2019.]

Trial Court Opinion, 1/14/2019, at 1-3.

      Appellant has not set forth a statement of questions presented in his

appellate brief.   See Pa.R.A.P. 2116.     In fact, his appellate brief barely

adheres to the minimum briefing requirements under our rules of appellate

procedure. See generally Pa.R.A.P. 2111-2119.         However, as we are able

to glean the appellate issue presented, our review is unhampered. In essence,

Appellant challenges the order sustaining preliminary objections, arguing that

“the [trial] court should have given Appellant the opportunity to amend the

complaint.” Appellant’s Brief at *3 (unpaginated).

      We review appeals from orders sustaining preliminary objections in the

nature of a demurrer under the following standard:

      A preliminary objection in the nature of a demurrer is properly
      [sustained] where the contested pleading is legally insufficient.
      Preliminary objections in the nature of a demurrer require the
      court to resolve the issues solely on the basis of the pleadings; no
      testimony or other evidence outside of the complaint may be
      considered to dispose of the legal issues presented by the
      demurrer. All material facts set forth in the pleading and all
      inferences reasonably deducible therefrom must be admitted as
      true.

      In determining whether the trial court properly sustained
      preliminary objections, the appellate court must examine the
      averments in the complaint, together with the documents and
      exhibits attached thereto, in order to evaluate the sufficiency of
      the facts averred. The impetus of our inquiry is to determine the
      legal sufficiency of the complaint and whether the pleading would
      permit recovery if ultimately proven. This Court will reverse the
      trial court's decision regarding preliminary objections only where

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        there has been an error of law or abuse of discretion. When
        sustaining the trial court's ruling will result in the denial of claim
        or a dismissal of suit, preliminary objections will be sustained only
        where the case is free and clear of doubt.

        Thus, the question presented by the demurrer is whether, on the
        facts averred, the law says with certainty that no recovery is
        possible. Where a doubt exists as to whether a demurrer should
        be sustained, this doubt should be resolved in favor of overruling
        it.

        Where the complaint fails to set forth a valid cause of action, a
        preliminary objection in the nature of a demurrer is properly
        sustained.

412 North Front Street Associates, LP v. Spector Gadon & Rosen, P.C.,

151 A.3d 646, 656 (Pa. Super. 2016) (internal citations omitted).

        As this Court explicitly stated in Moore v. McComsey, 459 A.2d 841

(Pa. Super. 1983) and Ibn-Sadiika v. Riester, 551 A.2d 1112, 1114 n.2 (Pa.

Super. 1988), a criminal defendant has no breach of contract action against

court-appointed counsel, including the public defender. See Moore, 459 A.2d

at 844; Riester, 551 A.2d at 1114 n.2.

        We have held that tortious infliction of emotional distress may constitute

actionable harm in a professional negligence suit. See Riester, 551 A.2d at

1116.      At a minimum, however, a plaintiff must plead some identifiable,

physical injury to his person that is verifiable by expert medical testimony. Id.

at 1116, n.6, citing Kazatsky v. King David Memorial Park, 527 A.2d 988,

995 (Pa. 1987); see also Armstrong v. Paoli Memorial Hosp., 633 A.2d

605, 609 (Pa. Super. 1993) (“Physical injury must be averred to sustain a




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cause of action for negligent infliction of emotional distress.”). Furthermore,

we have opined:

      The requirement that physical harm must accompany emotional
      distress to state a cause of action is based on the Restatement
      (Second) of Torts § 436A []. Temporary fright, nervous shock,
      nausea, grief, rage, and humiliation if transitory are not
      compensable harm; but, long continued nausea or headaches,
      repeated hysterical attacks or mental aberration are compensable
      injuries. This Court applied the Restatement standards to a case
      in    which    the   plaintiff  averred   “headaches,    shaking,
      hyperventilation, nightmares, shortness of breath, lack of control
      over the bowels, and tightening of the muscles in the neck, back
      and chest” and found that she had stated a cause of action for
      negligent infliction for emotional distress when her employer
      wrongfully coerced her to enter an abusive substance abuse
      program. Crivellaro v. Pennsylvania Power and Light, 491
      A.2d 207 (Pa. Super. 1985). Relying on Comment c to § 436A, a
      panel of this Court held that “symptoms of severe depression,
      nightmares, stress and anxiety, requiring psychological
      treatment, and ... ongoing mental, physical and emotional harm”
      sufficiently stated physical manifestations of emotional suffering
      to sustain a cause of action. Love v. Cramer, 606 A.2d 1175 (Pa.
      Super. 1992). Cases which the Crivellaro court collected from
      other jurisdictions cite depression, nightmares, nervousness,
      insomnia and hysteria as physical symptoms warranting recovery.
      Crivellaro, 491 A.2d at 210.

Armstrong, 633 A.2d at 609.

      Upon review of the record in this case, we discern no abuse of discretion

or error of law in sustaining Attorney Kallenbach’s preliminary objections and

dismissing Appellant’s complaint.     Here, Appellant’s amended complaint

alleged a breach of contract against Attorney Kallenbach, “the Defendant,

Assistant Public Defender, [who] was assigned as legal counsel.”           First

Amended Complaint, 6/21/2018, at ¶ 3.        Appellant alleged that Attorney



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Kallenbach committed breach of contract by failing to: review discovery,

vigorously represent Appellant, apply timely for pro hoc vice admission of

retained counsel, and prepare for trial, as demonstrated by his last minute

request for a continuance.           Id. at ¶¶ 16-21.   However, as previously

mentioned, breach of contract claims are not cognizable actions against

court-appointed counsel, including the public defender.         See Moore and

Riester, supra.         As such, the trial court properly sustained Attorney

Kallenbach’s preliminary objection to Appellant’s breach of contract claim. 1

       Upon further review, in support of his intentional infliction of emotional

distress claim, Appellant averred that he “sought psychological counseling” for

his “physiological injuries” that were proximately caused as the result of

“being incarcerated in state prison.” First Amended Complaint, 6/21/2018, at

¶¶ 24-25. Such averments do not sufficiently state physical manifestations of

emotional suffering to sustain a cause of action as required.            As such,

Appellant failed to state a valid claim for the intentional infliction of emotional

distress and the trial court properly sustained Attorney Kallenbach’s

preliminary objection in this regard.

       Finally, turning to Appellant’s argument that the trial court should have

permitted him to amend his complaint, we have previously determined:


____________________________________________


1 Moreover, we agree with the trial court’s assessment that because there is
no contractually based legal malpractice claim against court-appointed
counsel, “[n]o amendment to Appellant’s complaint [could] change that
reality.” Trial Court Opinion, 1/14/2019, at 6.

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      Pa.R.C.P. 1033 provides that a party, by leave of court, may
      amend his pleading at any time. The decision whether to allow a
      proposed amendment of a pleading is within the sound discretion
      of the court below, and that decision will not be disturbed on
      appeal absent an abuse of discretion. There is, however, a
      prohibition against amendments which add a new cause of action
      to a complaint after the running of the statute of limitations.
      Though the right to amend a pleading is to be construed liberally,
      amendment will not be permitted after the running of the statute
      of limitations if it introduces a new cause of action. A new cause
      of action arises if the amendment proposes a different theory or a
      different kind of negligence than the one previously raised or if
      the operative facts supporting the claim are changed.

Matos v. Rivera, 648 A.2d 337, 340 (Pa. Super. 1994).           A claim for the

intentional infliction of emotional distress is governed by a two-year statute

of limitations. See 42 Pa.C.S.A. § 5524(7).

      Here, Appellant alleged that trial counsel inflicted emotional distress

upon him when he was convicted and sentenced in the underlying criminal

matter. Appellant was sentenced on July 20, 2015. Thus, he had until July

20, 2017 to timely amend his complaint before the statute of limitations on

his intentional infliction of emotional distress claim ran. Appellant sought to

amend his claim well after July 20, 2017. Because Appellant did not originally

plead that he sustained physical injuries as a result of Attorney Kallenbach’s

alleged actions as discussed in detail above, however, he cannot now change

the operative facts supporting his intentional infliction of emotional distress

claim to do so after the statute of limitations had run. Accordingly, for all of

the foregoing reasons, we discern no abuse of discretion or error of law in




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sustaining Attorney Kallenbach’s preliminary objections and dismissing

Appellant’s complaint with prejudice.2

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2019




____________________________________________


2  Finally, we note that we have received and reviewed pro se correspondence
from Appellant filed with this Court on June 18, 2019. However, because
Appellant has not requested obtainable relief from this Court, we need not
address it.

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