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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ANDREW P. GLUSHKO, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
THE HENRY LAW FIRM; : No. 3219 EDA 2015
TODD EDWARD HENRY AND :
DANIEL McGARRIGLE :
Appeal from the Order Entered August 31, 2015,
in the Court of Common Pleas of Monroe County
Civil Division at No. 2438-CV-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016
Andrew P. Glushko appeals, pro se, from the order entered August 31,
2015, denying his petition for reinstatement of in forma pauperis (“IFP”)
status. We dismiss the appeal.
On July 16, 2009, following a jury trial, appellant was found guilty of
multiple counts of unlawful contact with a minor, criminal attempt and
criminal solicitation counts related to various sexual offenses, corruption of
minors, and criminal use of a communication facility. Appellant was
sentenced to 4 to 8 years’ imprisonment. This court affirmed the judgment
of sentence, and appellant did not file a petition for allowance of appeal with
the Pennsylvania Supreme Court. Commonwealth v. Glushko, 26 A.3d
J. S44014/16
1190 (Pa.Super. 2011) (unpublished memorandum). Appellees represented
appellant on his direct appeal.
Subsequently, appellant litigated a PCRA1 petition which was denied.
This court affirmed the denial of PCRA relief, and our supreme court denied
allowance of appeal. Commonwealth v. Glushko, 102 A.3d 544
(Pa.Super. 2014) (unpublished memorandum), appeal denied, 104 A.3d 2
(Pa. 2014). On March 28, 2014, while his PCRA appeal was pending in this
court, appellant filed a professional liability complaint alleging malpractice
and breach of contract based on appellees’ purported mishandling of his
direct appeal. However, appellant did not file a certificate of merit (“COM”)
as required by Pa.R.C.P. 1042.3.
On January 5, 2015, the trial court sustained appellees’ preliminary
objections in part and struck Counts 6, 7, & 8 of appellant’s complaint.
However, the trial court reserved ruling on appellees’ demurrer to give the
parties time to brief the issue. Subsequently, on January 27, 2015,
appellees filed a praecipe for judgment of non pros for failure to file a COM,
and on January 29, 2015, the prothonotary entered judgment of non pros.
On February 2, 2015, appellant filed a notice of appeal from the
January 5, 2015 order, as well as a petition for leave to file a COM and a
petition to strike off judgment of non pros. Appellant’s appeal was
docketed at No. 720 EDA 2015. In an opinion and order filed April 2, 2015,
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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the trial court determined that the February 2 appeal was interlocutory and
premature, and therefore, the trial court retained jurisdiction to decide any
outstanding issues. (Opinion and Order, 4/2/15 at 8-9.) See
Pa.R.A.P. 1701(b)(6) (“After an appeal is taken or review of a quasijudicial
order is sought, the trial court or other government unit may: Proceed
further in any matter in which a non-appealable interlocutory order has been
entered, notwithstanding the filing of a notice of appeal or a petition for
review of the order.”). The trial court denied appellant’s motion to continue
IFP status on the basis that the appeal was frivolous. (Id. at 9-10, citing
Pa.R.C.P. 240(j)(1) (“If, simultaneous with the commencement of an action
or proceeding or the taking of an appeal, a party has filed a petition for
leave to proceed in forma pauperis, the court prior to acting upon the
petition may dismiss the action, proceeding, or appeal if the allegation of
poverty is untrue or if it is satisfied that the action, proceeding or appeal is
frivolous.”).) See also Bell v. Mayview State Hosp., 853 A.2d 1058,
1060 (Pa.Super. 2004) (“Under Rule 240(j), an action is frivolous if, on its
face, it does not set forth a valid cause of action.”) (internal quotation marks
and citations omitted). In addition, the trial court determined that appellant
failed to set forth sufficient factual averments to support his claim of
indigence. (Opinion and Order, 4/2/15 at 10 n.5.)
The trial court also denied appellant’s motion to open/strike judgment
of non pros, finding that he had ample opportunity to file a COM and failed
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to do so. (Id. at 19.) Furthermore, the trial court determined that even if
the judgment was opened, appellees’ preliminary objections in the nature of
a demurrer would be sustained and the complaint stricken because appellant
failed to plead or establish claims upon which relief may be granted. The
trial court found that under Bailey v. Tucker, 621 A.2d 108 (Pa. 1993),
which governs actions in criminal malpractice, appellant was unable to plead
a legally sufficient claim of professional negligence. (Opinion and Order,
4/2/15 at 12-14.)2 Therefore, the trial court denied appellant’s motion to
continue IFP status; denied his petition to strike off judgment of non pros,
and, in the alternative, sustained appellees’ preliminary objections in the
nature of a demurrer; denied appellant’s motion for reconsideration of the
January 5, 2015 order; and dismissed appellant’s remaining motions and
requests as moot. (Id. at 22.)
The trial court’s April 2, 2015 order denying appellant’s petition to
strike the judgment of non pros and dismissing the complaint was a final
and immediately appealable order. Pa.R.A.P. 311(a)(1);
Pa.R.A.P. 341(b)(1). Appellant filed an appeal on May 1, 2015 at No. 1436
2
Under Bailey, a criminal defendant/legal malpractice plaintiff must prove,
inter alia, that 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; and he has pursued post-trial remedies
and obtained relief which was dependent upon attorney error. Bailey, 621
A.2d at 114-115. Appellant would be unable to satisfy this standard where
his judgment of sentence was upheld on direct appeal, and he was denied
PCRA relief.
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EDA 2015.3 Appellant also filed another motion for continuation of IFP
status on appeal, which was not ruled upon by the trial court. On May 27,
2015, this court granted appellant’s motion to withdraw the February 2,
2015 appeal at docket number 720 EDA 2015, filed from the order of
January 5, 2015.
On August 10, 2015, appellant filed a “Motion for Documents/
Transcripts, Reinstatement of [IFP] Status, and Retraction of Costs.” This
motion was denied on August 31, 2015, “for the reasons set forth in the
prior orders and opinions issue[d] by this Court, especially those that have
addressed [appellant]’s recent requests for [IFP] status.” (Order, 8/31/15
at 1; docket #9.) Appellant filed an appeal from that order on
September 29, 2015. On November 6, 2015, appellant was ordered to file a
concise statement of errors complained of on appeal within 21 days pursuant
to Pa.R.A.P. 1925(b); appellant complied on November 20, 2015, asserting
that the trial court was without authority to deny appellant’s motion for
continuation of IFP status pursuant to Pa.R.A.P. 551 and Nevyas v.
3
Appellant is currently incarcerated and so the “prisoner mailbox rule,” in
which a pro se prisoner’s appeal is deemed filed on the date that he delivers
the appeal to prison authorities and/or places his notice of appeal in the
institutional mailbox, applies. See Smith v. Pa. Bd. of Prob. & Parole,
683 A.2d 278, 281 (Pa. 1996); Thomas v. Elash, 781 A.2d 170, 176
(Pa.Super. 2001) (holding that the prisoner mailbox rule applies to all
pro se legal filings by incarcerated litigants, including civil actions).
Appellees contend that appellant’s appeal notice was not filed until May 6,
2015, beyond the 30-day filing deadline. (Appellees’ brief at 7.) However,
appellant averred that he deposited his notice of appeal with prison officials
for mailing on May 1, 2015. Therefore, it is deemed filed on that date.
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Morgan, 921 A.2d 8 (Pa.Super. 2007). (Docket #7.) On December 21,
2016, the trial court filed a Rule 1925(a) opinion. Therein, the trial court
opined that the appeal should be dismissed or quashed as moot since the
underlying appeal at No. 1436 EDA 2015 has been dismissed. (Trial court
opinion, 12/21/16 at 1-2.) Alternatively, the trial court found that
appellant’s prior appeals are frivolous and his applications lack sufficient
averments of indigence. (Id. at 3.) The trial court noted that appellant has
a history of filing frivolous motions and appeals. (Id. at 2.)
On November 16, 2015, this court had dismissed the appeal at
No. 1436 EDA 2015, which was the appeal from the April 2, 2015 order
denying appellant’s petition to strike off judgment of non pros. This court
dismissed the appeal due to appellant’s failure to pay the appropriate filing
fees. We noted that on August 31, 2015, the trial court had denied
appellant’s motion for reinstatement of IFP status, citing the frivolous nature
of appellant’s complaint. Glushko v. The Henry Law Firm, et al., No.
1436 EDA 2015, per curiam order (Pa.Super. filed November 16, 2015).
Appellant filed a petition for allowance of appeal with the Pennsylvania
Supreme Court which was denied on May 3, 2016.
Appellant has raised the following issue for this court’s review:
“Whether the lower court erred in denying [appellant]’s motion for
reinstatement of [IFP] status?” (Appellant’s brief at 1.) Appellant argues
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that the trial court was without authority to deny continuation of IFP status
while his appeal was pending. (Id. at 3.)4
(a) General rule. A party who has been granted
leave by a lower court to proceed in forma
pauperis may proceed in forma pauperis in
an appellate court upon filing with the clerk of
the lower court two copies of a verified
statement stating:
(1) The date on which the lower court
entered the order granting leave to
proceed in forma pauperis.
(2) That there has been no substantial
change in the financial condition of
the party since such date.
(3) That the party is unable to pay the
fees and costs on appeal.
Pa.R.A.P. 551(a). Appellant is correct that the trial court has no authority to
revoke IFP status while an appeal is pending. Nevyas, 921 A.2d at 13-14.
Here, however, the underlying appeal from the April 2, 2015 order denying
appellant’s petition to strike off the judgment of non pros in the criminal
malpractice action has been dismissed and appellant’s petition for allowance
of appeal has been denied. There is no longer an appeal pending. Appellant
failed to respond to this court’s September 15, 2015 show cause order, and
we dismissed the appeal at No. 1436 EDA 2015. The earlier, interlocutory
appeal was withdrawn by appellant. The underlying litigation has come to
4
As appellees observe, appellant uses the terms “continuation” and
“reinstatement” interchangeably. (Appellees’ brief at 11 n.4.)
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an end. Therefore, we agree with the trial court that the issue of appellant’s
IFP status is moot.
Furthermore, as explained by the trial court in its April 2, 2015 opinion
and order, appellant failed to comply with the COM requirements and he
cannot possibly prove legal malpractice where he was found guilty and has
exhausted all of his appeals and state post-conviction remedies. Appellant
cannot meet the third element required in Bailey; i.e., that he did not
commit any of the unlawful acts with which he was charged. Appellant
cannot prove that “but for” the allegedly negligent acts of his attorneys, he
would have obtained an acquittal. As a matter of public policy, a guilty
plaintiff cannot collect damages in a criminal malpractice trespass action.
See Bailey, 621 A.2d at 113 (“First, as for the possibility of a defendant
actually profiting from his crime, we require that as an element to a cause of
action in trespass against a defense attorney whose dereliction was the sole
proximate cause of the defendant’s unlawful conviction, the defendant must
prove that he is innocent of the crime or any lesser included offense.”). See
also Hill v. Thorne, 635 A.2d 186, 190-191 (Pa.Super. 1993) (“[P]ublic
policy should not allow an actually guilty defendant to profit from his crime
by attacking peripherally negligent aspects of his defense attorney’s
performance. The heightened pleading standards also discourage frivolous
litigation, while leaving intact the criminal defendant’s access to other
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systemic remedies, such as appeals and post-conviction proceedings.”),
citing Bailey, 621 A.2d at 112-113.
Appellant also could not establish the fifth element of criminal legal
malpractice required by Bailey, the successful pursuit of post-trial relief
dependent upon attorney error. As set forth above, appellant’s PCRA
petition was denied, and this court affirmed. The Pennsylvania Supreme
Court has recently denied allocatur. Appellant was not entitled to IFP
status to pursue this wholly frivolous lawsuit. See Conover v. Mikosky,
609 A.2d 558, 560 (Pa.Super. 1992) (“Courts should not allow a litigant
seeking in forma pauperis status to use the court’s time and the
taxpayer’s money to support a frivolous claim.”).
Appeal dismissed. Appellant’s application to file a reduced number of
copies of his reply brief is denied as moot, appellant having already filed the
requisite number of copies (4).
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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Glushko, A. v. Henry Law Firm
Combined Opinion