J-S80001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICKEY CASTILLO                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

MATTHEW P. KELLY

                         Appellee                      No. 36 MDA 2016


              Appeal from the Order Entered December 7, 2015
              In the Court of Common Pleas of Luzerne County
                     Civil Division at No(s): 10136-2013


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

JUDGMENT ORDER BY LAZARUS, J.:                   FILED DECEMBER 01, 2016

      Mickey Castillo appeals, pro se, from the trial court’s order sustaining

Attorney Matthew P. Kelly’s preliminary objections and dismissing Castillo’s

supplementary malpractice complaint. We affirm.

      In July 2010, Castillo was convicted of felony drug possession and

sentenced to 4-8 years in prison, with a two-year probationary tail.       Kelly

was Castillo’s appellate counsel following the denial of post-conviction relief.

On August 26, 2013, Castillo filed a praecipe for a writ of summons against

Kelly and, on July 6, 2015, a malpractice complaint against Kelly asserting:

(1) fraud; (2) destruction of paperwork; and (3) legal malpractice.      In his

complaint, Castillo claimed that “[Kelly’s] actions have destroyed, sabotaged

[and] interfered with [his] absolute guaranteed constitutional right to

procedural ‘Due Process’ and . . . [sought the] disbarment of [Kelly] . . .

[and] $[15] [m]illion dollars [compensatory and punitive damages] for
J-S80001-16



"mental and emotional distress[, Kelly’s] irreprehensible and corrupt

[actions] and fraud.” Castillo’s Supplementary Malpractice Complaint, at 5-

6.

       Kelly filed preliminary objections claiming that the complaint failed to

assert a cause of action upon which relief could be granted. See Pa.R.C.P.

1028(a)(4).     On August 17, 2015, the preliminary objections were served

upon Castillo, including a notice to plead within twenty days or suffer an

adverse judgment.        On September 3, 2015, Castillo filed a motion for an

extension to respond to the preliminary objections. On November 6, 2015,

Castillo filed a motion for a hearing to stay the matter pending resolution of

his federal habeas corpus petition. On that same day, the trial court denied

Castillo’s motion for stay.

       On December 7, 2015, the trial court entered an order sustaining

Kelly’s preliminary objections and dismissing with prejudice Castillo’s

complaint. Castillo filed a timely appeal on January 7, 2016.1 On January

21, 2016, the trial court ordered Castillo to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal within 30 days; Castillo
____________________________________________


1
   Kelly has filed a motion to quash the instant appeal claiming that Castillo
filed an untimely notice of appeal and that a copy of the trial court docket
was not attached to the notice of appeal. The docket indicates that notice of
the trial court’s order granting Appellee’s preliminary objections and
dismissing Castillo’s complaint was sent to the parties on December 8, 2015.
See Pa.R.C.P. 236. Therefore, Castillo’s January 7, 2016 notice of appeal is
timely. See Pa.R.A.P. 903(a). Additionally, a copy of the trial court docket
is included in the certified record on appeal, therefore we decline to quash
the appeal on that basis as well.


                                           -2-
J-S80001-16



complied with the order, filing his statement on February 19, 2016. On April

1, 2016, the trial court filed a Rule 1925(a) opinion.

       On appeal, Castillo raises several related issues concerning the trial

court’s decision to dismiss his complaint. After careful review of the parties’

briefs, relevant case law and the record on appeal, we rely upon the well-

reasoned opinion authored by the Honorable Richard M. Hughes, III, to

affirm the trial court’s order.

       Allegations of fraud must be pled with specificity.      See Pa.R.C.P.

1019(b). Castillo fails to specify exactly how counsel misrepresented him.

With regard to his claim of destruction of documents, Castillo failed to

specify what documents, if any, Kelly destroyed.         Kelly merely informed

Castillo that he did not possess papers that he had requested.         Finally,

Castillo’s vague assertions that Kelly “sabotaged” and “gutted” his PCRA

appeal are not grounded in any facts or supported by law that would grant

him relief. The fact that counsel filed a Finley letter does not automatically

equate to legal malpractice; in order to sustain a malpractice action against

a criminal defense attorney, a plaintiff must establish five elements.    See

Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993). Castillo has simply not

alleged any facts to support elements 2-5 of the Bailey test.

       Order affirmed.2


____________________________________________


2
  We instruct the parties to attach a copy of President Judge Hughes’ opinion
in the event of further proceedings in the matter.


                                           -3-
J-S80001-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2016




                          -4-
                                                                                              Circulated 11/02/2016 01:50 PM



    MICKEY R. CASTILLO               ~                   : IN THE COURT OF COMMON PLEAS
                                                                  OF LUZERNE COUNTY
                               Plaintiff
                                                                 CIVIL ACTION - LAW
             vs.

    t-.1A TTHE\\' P. KELLY,

                              Defendants                   NO.             10136 of2013



                                 1925(a) OPINION IN SUPPORT OF ORDER



    Introduction

            This Opinion arises out of a Civil Complaint alleging professional legal malpractice filed

    by pro se Plaintiff Mickey Castillo on July 6, 2015. On August 17, 2015, Defendant Matthew P.

    Kelly, who had served as Plaintiff's appointed counsel in a P.C.R.A.1 matter, filed a Preliminary

    Objection to the Complaint in the nature of a demurrer. For the reasons s~t f011h in this Opinion,

    this court Sustained Defendant's Preliminary Objection and dismissed Plaintiff's Complaint by

    Order dated December 7, 2015.



Background

            Complaint

           Plaintiff's Complaint enumerated three causes of action: "1) Fraud, misrepresentation; 2)

Destruction of Plaintiff Paperwork; [and] 3) Ineffective Counsel including when Defendant

'Finleyed' Plaintiff." The underlying facts, as detailed inthe Complaint, are as follov.vs:




I   The PostConviction Relief Act ("P.C.R.A."), 42 Pa. C.S.A. § 9541 et seq., establishes the process for obtaining
collateral relief from a criminal conviction in the Conunonwealth of Pem~sylvania .

                                           .   \
L
                      On July 8, 2010, P~intiff was sentenced to 4 to 8 years in prison, with 2 years of

         probation, following an April 14, 2010 conviction of felony drug possession. Complaint ,I 5.

         Plaintiff filed a P.C.R.A. petition on July 8, 2011; that P.C.R.A. petition was denied on October

         26, 2012. Complaint         ir~ 6-7.   On December 5, 2012, Defendant Matthew P. Kelly was appointed

    , to represent Plaintiff's appeal of the denial of relief. Complaint               ,r 8.
                      Plaintiff states that, in January, 2013, he "became aware and forwarded to [Defendant]

         that since the 7/8/10 'Sentence Order' was not formally entered into the Docket all legal

         procedures since 7/8/10 are of no effect and in fact are still tolled till triggering effect has been

         cured." Complaint f 9. Plaintiff avers that "[ajll procedures from 7/8/10 have no legal

         standing", but provides no legal support or other documentation for this claim. Complaint f 10.

      Plaintiff states that "Defendant took no action ... and directed Plaintiff in essence to go pro-se on
                                                 \



      such matter" and states that in "July 2013 Plaintiff was 'Finleyed' by Defendant."? Cornplaint j'[
                                                                                               •
         11-12. These actions, Plaintiff alleges, "sabotaged" him and "resulted in ... the Pa. Superior

      Court [ denying] Plaintiff relief." Complaint ~ 13.

                      Plaintiff next avers that he filed a federal habeas corpus action, and "in April 2013 went

     personally to Defendant's office to retrieve paperwork so as to litigate" that action, but that

     "Defendant has stated he [didn't] have any" relevant paperwor~. Complaint ,r,r 15-17. Plaintiff


     2
         Plaintiffs statement that he was "Finleyed" by Defendant suggests that Defendant, in the course of his
     representation of Plaintiff during his P.C.R.A. appeal, filed what has come to be known as a "Finley Letter", after
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). In Finley, the Superior Court of Pennsylvania
     acknowledged that an attorney appointed to represent a P .C.R.A. petitioner need not pursue frivolous claims but
     need only conduct "an independent review of the record," whiclr-~equired "I) A 'no-merit' letter ... detailing the
     nature and extent of [counsel's] review; 2) the 'no merit' letter. .. listing each issue the petitioner wished to have
     reviewed; 3) [C]ounsel 's 'explanation', in the 'no-merit' letter, of why the petitioner's issues were meritless; 4) The
     [reviewing] court conducting its own independent review of the record; and 5) The [reviewing] court agreeing with
     counsel that the petition was meritless." Id. (citing
                                                       . .
                                                           Pennsylvania v. Finley,
                                                                              -
                                                                                   481 U.S. 551 (1987)).

                                                                 2

              .....
                                   ~l

     makes a claim for "Destruction of Plaintiffs paperwork," alleging that "Defendant's acts are

     opposite [to his legal] duty." Complaint j 19.

                Additionally, Plaintiff makes a claim titled "fraud", stating that "Defendant had never

     been given jurisdiction to litigate [Plaintiff's] legal cause ... result[ing] in [Defendant] taking,

, illegally, funds from the Public Defenders' fund." Complaint ~ 18.

                Ultimately, Plaintiff alleges that defendant "destroyed, sabotaged, [ and] interfered with

     [Plaintiff's] absolute guaranteed constitutional right to procedural due process"; Plaintiff's

    Complaint seeks the disbarment of Defendant and a total of $15 million in compensatory and

    punitive damages for "mental and emotional distress." Complaint v[ 20-21, 23-25.



               Preliminary Objection

               On August 17, 2015, Defendant filed a single Preliminary Objection in the nature of a

    demurrer, averring that "[t]he Complaint fails to assert any cause of action upon which relief can

    be granted .... " Defendant simply argued that the Complaint did not assert facts that could

    support claims for fraud, destruction of documents, or malpractice. Defendant's Preliminary
          ..
    Objection was served on Plaintiff with an attached Notice to Plead within twenty days.

               On September I, 2015, Plaintiff, who had since been released from prison, mailed to the
                                                                               I




Luzerne County Prothonotary a "Motion and Request for E?ension to Respond" to Defendant's

Preliminary Objection. The Prothonotary mailed a letter to Plaintiff, stating that motions such as

the one filed by Plaintiff are required by Local Rule 206.4( c) to be presented in person to the

Judge presiding over Motions Court (held every work day from 8:30 a.m. to 9: 15 a.m.).3 Both


3
    Luzerne County Rule of Civil Procedure 206.4(c)(B)(l) states "Where the moving patty is seeking immediate
reliefin addition to the issua~iceof the Rule to Show Cause ... a party seeking the same shall present the Rule to
Show Cause along with the underlying Motion/Petition, a comprehensive Brief in support and Proposed Order, to

                                         '\
                                                          3                                         ,,,
                                 "'J
 the improperly-filed motion and Prothonotary's letter were docketed with proof of service. The

 docket does not show that Plaintiffs Motion was ever properly presented to a Judge.




          Order and Appeal

          This court, upon consideration of the Complaint and the Preliminary Objection thereto,

 sustained Defendant> s Objection and dismissed Plaintiff's Complaint with prejudice by Order of

 December 7, 2015. Plaintiff filed an appeal of this Order to the Superior Court of Pennsylvania

 on January 7, 2016. This court issued an Order pursuant to Pennsylvania Rule of Appellate

 Procedure 1925(b ), directing Plaintiff to file a statement of errors complained of on appeal;

Plaintiff filed a statement containing five alleged errors.

         The first error alleged was that this court's Order was "constitutionally deficient." The

second error alleged was that this court abused its discretion in "declining to address and

adjudicate the claims ... raised ... [ on] the merits .... " The third error alleged was essentially that

this court applied an improper standard of review to a demurrer, inasmuch as "factual allegations

have been ignored and the law cited in Plaintiff's brief and complaint has been treated as if it did

not exist." The fourth error alleged is essentially the same as the third, stating that Plaintiff

should have been allowed to proceed to discovery, at which time-he
                                                               I
                                                                   would document "how the



Motions Court for Consideration." Plaintiff never properly presented a motion for extension of time to respond to
Defendant's Preliminary Objection, and as such was required to plead within twenty days. Plaintiff never did
respond to Defendant's Preliminary Objection, meaning that the factual averments within were deemed admitted.
Pa. R.C.P. § l029(b); see also Action Industries, Inc. v. Wiedeman/346 A.2d 798, 800 (Pa. Super. 1975). Although
Plaintiff's failure to respond to Defendant's Preliminary ?,bjedion resulted in the admission of any facts therein,
"[i)t does not follow ... that the preliminary objections must be sustail~ed;that depends upon the facts that have been
admitted." Action Industries, Inc., 346 A.2d at 800. Hence, this court ruled on the merits of Defendant's
Preliminary Objection, based upon the facts alleged in. both Plaintiff's Complaint and Defendant's Preliminary
Objection.

                                                          4                                        ..
                  process[ es] of Justice are b~}ng subverted to the shock [ of] everyone's conscience."           Finally,

                  Plaintiff alleges error in that no reason for the December 7, 2015 decision has been given as

                  required under Pennsylvania Rule of Appellate Procedure 1925(a); that is, of course, the purpose

                  of the present Opinion.




                 Analysis

                              It is well-established that " [aJ preliminary objection in the nature of a demurrer is

                  properly granted where the contested pleading is legally insufficient." Weiley v. Albeit Einstein

                  Medical Center, 51 A.3d 202, 208 (Pa. Super. 2012). In rnling on a preliminary objection in the

                  nature of a demurrer, "[ a]ll material facts set forth in the pleading and all inferences reasonably

                 deducible therefrom must be admitted as true." Id. As such, "the question presented by the

                 demurrer is whether, on thefacts 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." Id. (quoting Bilt-Rite Contractors, Inc. v. The

                 Architectural Studio, 866 A.2d 270, 274 (Pa. 2005)).

                         The remainder of this section of the Opinion will apply this standard to each of the three

                 causes of action mentioned in the Complaint.




                         In the Commonwealth of Pennsylvania, a cause of action for fraud has five elements: 1)

                 misrepresentation; 2) a fraudulent utterance thereof; 3) intention to induce action thereby; 4)

                 justifiable reliance thereon; and 5) damage as a proximate result. V-Tech Services, Inc. v. Street,




                                                                         5



&      ~·   •.      •    ·-                                      '
II .                                                         .       .
                                                                             ,   .   !.
                                                                                          . . ..   .
                                                                                                       -
                                                                                                           .   .    .
       72 A.3d 270, 275 (Pa. Super. 2013) (quoting Wilson v. Donegal Mutual Insurance Company,

       598 A.2d 1310, 1315 (Pa. Super. I 991 )).

               Under Pennsylvania Rule of Civil Procedure 10 l 9(b ), "Averments of fraud or mistake

       shall be averred with particularity."   This means that "pleadings [of fraud] must adequately
,..
      explain the nature of the claim to the opposing party so as to permit him to prepare a defense and

      they must be sufficient to convince the court that the avennents are not merely subterfuge." Bata

      v. Central-Penn National Bank of Philadelphia, 224 A.2d 174 (Pa. 1966).

              In the present case, the Complaint, read in a light most charitable to Plaintiff, cannot

      sustain a cause of action for fraud. Plaintiff has alleged no misrepresentation by Defendant; the

      closest Plaintiff comes is to nakedly aver that "Defendant had never been given jurisdiction to

      litigate [Plaintiffs] legal cause." \Read charitably, Plaintiff seems to be alleging that, due to
                                                                                   •,
      some perceived docketing defect on which he based his P.C.R.A. claim, all actions following his

      sentencing- including the appointment of Defendant as P.C.R.A. appellate counsel - are null

      and void. However, even assuming this was the case, Defendant would not have committed a

      misrepresentation unless he was or should have been aware that he could not properly represent

      Plaintiff yet lied about it. No such factual averment can be located within or inferred from the

      Complaint, nor can any factual avennents suggesting any intent ro mislead on the part of the

      Defendant. As such, the Complaint cannot support a claim/or fraud.



              Destruction of Documents

              To support this claim, Plaintiff merely states that, during April 2013, he went to

      Defendant's office to retrieve legal paperwork and that Defendant stated he did not have any.

      There is absolutely no factual avennent in the Complaint detailing what paperwork was at issue,



                                                         6
I   '




                 whether Defendant ever had possession of this paperwork, or whether it was destroyed, lost,

                 moved, stored, or hidden. Essentially, the Complaint merely suggests a disbelief in Defendant's

                 statement that he did not possess the requested paperwork. Without any facts upon which the

                 court can conclude that Defendant was ever in possession of Plaintiffs papenvork- or, indeed,
        ,   ..
        · whether there was any such paperwork in the first place - the Complaint cannot support a cause

                 of action for conversion or some other tort arising out of alleged clestrnction of documents.




                        Ineffective Counsel/Malpractice

                        The Supreme Court of Pennsylvania has held "that a plaintiff seeking to bring a trespass

             action against a criminal defense attorney ... 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; [and] (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. ... "1 Bailey v. Tucker, 621 A.2d

            108, 114-15 (Pa.1993).

                        The facts alleged in the Complaint to support Plaintiffs malpractice claim are that

        Defendant didn't pursue Plaintiffs legal theory regarding a purported docketing error, Defendant

        filed a Finley Letter regarding Plaintiff's P.C.R.A. appeal, and vague assertions that Defendant

        "sabotaged" and "gutted" Plaintiffs-appeal, resulting in the denial of the appeal. Plaintiff

        provides         110   support for his legal assertion regarding the effect of the purported docketing error,


                                                     .   \

                                                                          7                                    e'
      nor does he provide any support upon which it can be inferred that his P.C.R.A. appeal would

      have been granted but for the actions of Defendant.

             Clearly, the mere fact that Defendant filed a "Finley Letter" does not demonstrate

  culpable disregard for Plaintiffs interest, as the filing of such a letter has been explained and
...
 'endorsed by the Superior Court of Pennsylvania in Commonwealth v. Finley, 896 A.2d 607 (Pa.

  Super. 1988). Taken in the light most favorable to the Plaintiff, the Complaint simply does not

  support fl civil cause of action for legal malpractice against Defendant.




  Conclusion

             In ruling on Defendant's Preliminary Objection, this court applied the proper standard for

 a preliminary objection in the nature of a demurrer and otherwise properly preserved Plaintiff's

 rights. For the foregoing reasons, this court properly sustained Defendant's Preliminary

 Objection on December 7, 2015.




            The Office of Judicial Records/Prothonotary     is directed to enter this Opinion of record,

and mail a copy to all counsel of record, pursuant to Pa. R.C.P 236.



                                                            BY THE COURT:




                                                     .8
