J-A30036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD H. SATERSTAD IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOSHUA D. LOCK, GOLDBERG, KATZMAN
& SHIPMAN, P.C., KATHY MURRAY, SKIP
GOCHENOUR, COURTNEY L. KISHEL AND
JAMES, SMITH, DIETERRICK &
CONNELLY, LLP
Appellees No. 337 MDA 2016
Appeal from the Orders Dated December 20, 2012, and January 29, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No: 2006-CV-4989-CV
BEFORE: BOWES, OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 13, 2017
Appellant, Edward H. Saterstad (“Saterstad”) appeals pro se from the
December 20, 2012 order entered in the Court of Common Pleas of Dauphin
County (“trial court”) sustaining the preliminary objections and dismissing all
claims against Courtney L. Kishel (“Kishel”) and James, Smith, Dietterick &
Connelly, LLP, (“JSDC”) with prejudice, and the January 29, 2016 order
sustaining the preliminary objections and dismissing all claims against
Joshua D. Lock (“Lock”), Goldberg, Katzman & Shipman, P.C. (“GKS”), Kathy
Murray (“Murray”), and Skip Gochenhour (“Gochenhour”), together
(“Appellees”). Upon review, we affirm.
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The trial court summarized the circumstances which led to Saterstad’s
complaint as follows.
[O]n February 1, 2001, SC, a minor, identified [Saterstad] and
his car to SC’s Grandmother and made a report to Harrisburg
Police that [Saterstad] had approached her and her friend earlier
that same afternoon and offered SC $200 to “fool around.” As a
result of this report, [Saterstad] was arrested for attempted
kidnapping, attempted luring, and stalking of SC.
On February 22, 2001, [Saterstad] contacted [GKS] to
inquire about an attorney to represent him at his criminal trial.
GKS and [Murray] advised [Saterstad] that [Lock] was attentive
to clients and was one of the best trial attorneys in Harrisburg.
[Saterstad] met with Lock and told him that he was
innocent of the charges and had no interest in any plea. Lock
offered to represent [Saterstad] for $12,500, in consideration of
which, he would investigate, develop and present an innocence
defense through trial to include alibi, credibility of SC,
misidentification, and possible motive for false accusation.
[Saterstad] agreed to Lock’s offer and paid Lock $2,500, with
the remaining $10,000 to be paid after the Preliminary Hearing.
[Saterstad] paid Lock the remaining $10,000 on June 4, 2001[,]
after Lock represented him at the February 28, 2001 Preliminary
Hearing. At this time, [Saterstad] reiterated that he was not
interested in any type of plea agreement, and Lock again
acknowledged the agreement to develop an innocence defense,
including credibility issues, conflicting statements, possible
motives for false accusation, and alibis that dispute the
allegations.
[Saterstad’s] trial commenced on September 8, 2003.
[Saterstad] avers that Lock did not present the defense and
issues that he agreed to present and, as a result, [Saterstad]
was found guilty at trial.
[Saterstad] brought claims for Breach of Contract and
Abuse of Process against [Lock], claims for violation of the Unfair
Trade Practices and Consumer Protection Law against
[Gochenour, Murray and GKS,] and claims for Intentional
Infliction of Emotional Distress against [Lock, Gochenour, and
Murray].
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[The trial court] provided [Saterstad] with several
opportunities to file a Complaint against Appellees that complied
with the applicable Rules of Civil Procedure and stated valid
claims against Appellees. On February 27, 2014, [Saterstad]
filed his Sixth Amended Complaint. Appellees filed Preliminary
Objections to this Complaint on March 19, 2014, and [Saterstad]
filed Preliminary Objections to Appellees’ Preliminary Objections
on April 10, 2014. After disposing of [Saterstad’s] Preliminary
Objections by Order dated September 3, 2014, [the trial court]
Ordered [Saterstad] to file a brief in opposition to Appellees’
Preliminary Objections no later than October 19, 2015, and [the
trial court] scheduled oral argument for December 22, 2015 at
11:00 a.m. This Order, dated October 16, 2015[,] was sent to
[Saterstad] at his address of record. Despite having over two
months’ notice of the date and time of the oral argument,
[Saterstad] failed to appear. As a result of [Saterstad’s] failure
to appear at the oral argument, [the trial court] entered an
Order sustaining Appellee’s Preliminary Objections and
dismissing [Saterstad’s] Sixth Amended Complaint with
prejudice.
Trial Court Opinion, 4/25/2016, at 1-3 (sic).
Subsequently Saterstad filed a notice of appeal on February 23, 2016.
After the trial court directed Saterstad’s compliance with Pa.R.A.P. 1925(b),
Saterstad filed a concise statement on March 9, 2016. The trial court issued
a Rule 1925(a) opinion on April 25, 2016.
On appeal, Saterstad raises six issues, which we quote verbatim.
I. Did the trial court err with its 2/1/16 Order and Dismissal
with Prejudice, sustaining Appellees’ preliminary
objections, without consideration of the sufficiency of
complaint claims, without indication of deficiency or that
any deficiency cannot be cured, and when Appellant’s
Complaint clearly states prima facie claims[.]
II. Did the trial court err with its 12/20/12 Order and
Dismissal with Prejudice that sustained Appellees’
preliminary objections (“PO”), without allowing Appellant
to respond[.]
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III. Did the trial court err with its 12/20/12 Order sustaining
Appellees’ preliminary objections and dismissing
Appellant’s contract claim against Kishel on the basis that
Appellant refused to provide a Certificate of Merit, when
Appellant sufficiently set forth a prima facie true contract
claim which alleges that Kishel breached specific
agreement terms, and when this specific and distinct claim
does not sound in negligence, does not allege or set forth
a negligence or professional liability claim, and does not
require a Certificate of Merit[.]
IV. Did the trial court err with it 12/20/12 Order sustaining
Appellees’ preliminary objections and dismissing
Appellant’s intentional fraudulent inducement claim against
Kishel, on the basis that Appellant refused to provide a
Certificate of Merit, when Appellant sufficiently set forth a
prima facie intentional tort fraud claim and when this
separate and distinct Count does not sound in negligence,
does not allege or set forth a negligence of professional
liability claim, and does not require a Certificate of Merit[.]
V. Did the trial court err with its 12/20/12 Order sustaining
Appellees’ preliminary objections and dismissing the
Appellant’s malpractice Count on the basis that Appellant
refused to provide a Certificate of Merit, when the Court
presented no authority or discussion to support its
conclusion that expert testimony is even necessary
contrary to the assertions in the Certificate of Merit filed by
Appellant, and because expert testimony is not necessarily
required in legal malpractice action where issues are not
beyond knowledge of the average person[.]
VI. Did the trial court err with its 12/20/12 Order sustaining
Appellees’ preliminary objections and dismissing
Appellant’s claims against Kishel, because Appellant raised
issues of fact, controverted, as to whether Kishel breached
her duty to honor specific contract terms and as to
whether Kishel made fraudulent representations to
Appellant with specific intent of inducing Appellant into
hiring Kishel, because these are questions for finder of fact
and should preclude granting or sustaining preliminary
objections[.]
Appellant’s Brief at 6.
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Our standard of review for an order sustaining preliminary objections
is well settled.
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 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.
Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071, 1073 (Pa. Super.
2004) (quoting Clemleddy Const., Inc. v. Yorston, 810 A.2d 693, 696
(Pa. Super. 2002)).
Saterstad’s first issue is that the trial court erred when it dismissed
Saterstad’s sixth amended complaint with prejudice because the complaint
stated a prima facie claim. In his complaint against Lock, Saterstad raises
four claims, breach of contract, abuse of process, violation of the Unfair
Trade Practices and Consumer Protection Act (“UTPCPL”), and intentional
infliction of emotional distress.
Essentially, Saterstad’s claim flows from the fact that he was he hired
Lock to represent him in a criminal matter and was convicted. Saterstad is
attempting to couch a legal professional liability claim against Lock as a
breach of contract action. Even if we treated the claim as a breach of
contract action, Saterstad failed to properly plead such action. “It is well-
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established that three elements are necessary to plead a cause of action for
breach of contract: (1) the existence of a contract, including its essential
terms, (2) a breach of the contract; and (3) resultant damages.” Meyer,
Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone
Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016). Moreover, the trial
court correctly found that Saterstad did not properly plead the elements to a
breach of contract claim. See Trial Court Opinion, 4/25/2016, at 4.
Saterstad’s complaint fails to allege Lock breached the contract. Saterstad
hired Lock to represent him for a criminal matter and Lock performed that
duty. Therefore, the trial court properly sustained Lock’s preliminary
objection to the breach of contract claim.
Saterstad’s second claim is that Lock abused the legal process by
submitting an affidavit to the district attorney during post-conviction
proceedings. “To establish a claim for abuse of process it must be shown
that the defendant (1) used a legal process against the plaintiff, (2)
primarily to accomplish a purpose for which the process was not designed;
and (3) harm has been caused to the plaintiff.” Lerner v. Lerner, 954 A.2d
1229, 1238 (Pa. Super. 2008) (quoting Shiner v. Moriarty, 706 A.2d 1228,
1236 (Pa. Super. 1998), appeal denied, 729 A.2d 1130 (Pa. 1998)). Upon
review, the trial court correctly found that Saterstad failed to properly plead
the elements of abuse of process. See Trial Court Opinion, 4/25/2016, at 5.
Namely, the trial court found that Saterstad did not plead the second
element that the process was used primarily to accomplish a purpose for
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which the process was not designed. Saterstad pled that Lock filed an
affidavit for use by the Commonwealth in a post-conviction proceeding,
which raised ineffective assistance of counsel claims. The signing of the
affidavit was for the intended purpose of the process; therefore, the trial
court properly sustained Lock’s preliminary objection to the abuse of process
claim.
Saterstad’s third count is an unfair trade practices claim against GKS.
“To bring a private cause of action under the UTPCPL, a plaintiff must show
that he justifiably relied on the defendant’s wrongful conduct or
representation and that he suffered harm as a result of that reliance.”
Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004)
(citations omitted). In Beyers v. Richmond, 937 A.2d 1082 (Pa. 2007)
(plurality opinion), our Supreme Court held that the UTPCPL does not apply
to an attorney’s misconduct as the rules of professional conduct and the
Rules of Professional Conduct and Rules of Disciplinary Enforcement are the
exclusive means to address such claims. Id. at 1092. Moreover, the
Beyers Court noted that “most states have enacted a consumer protection
statute. The majority of jurisdictions that have addressed this issue have
held that the regulation of attorneys does not fall within the ambit of
consumer protection laws.” Id. at 1086. Upon review of Saterstad’s third
claim, it is apparent that he has failed to state a cause of action. Instead,
Saterstad is attempting to couch a professional liability claim as a claim that
GKS violated the UTPCPL. As such, the trial court did not abuse its
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discretion when it found Saterstad failed to state a claim upon which relief
could be granted.
Saterstad’s final claim against Lock, Gochenour and Murray is a claim
of intentional infliction of emotional distress.
To prove a claim of intentional infliction of emotional distress,
the following elements must be established:
(1) The conduct must be extreme and outrageous;
(2) it must be intentional or reckless;
(3) it must cause emotional distress;
(4) that distress must be severe.
Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. 1997) (citing Hooten v.
Penna. College of Optometry, 601 F. Supp. 1151, 1155 (E.D.Pa. 1984));
Section 46 of the Restatement (Second) of Torts). Upon review of
Saterstad’s complaint, he fails to plead that the conduct of Lock, Gochenour
and Murray is extreme and outrageous.1 Saterstad’s allegation that Lock
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1
The Restatement (Second) of Torts defines “extreme and outrageous
conduct” as follows:
The cases thus far decided have found liability only where the
defendant’s conduct has been extreme and outrageous. It has
not been enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to
inflict emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree , as to go
beyond all possible bounds of decency, and to be regarded as
(Footnote Continued Next Page)
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testified at a post-conviction hearing and submitted an affidavit does not
constitute outrageous conduct; therefore, Saterstad’s claim fails. Moreover,
Saterstad fails to discuss this claim in his brief; therefore the claim is
waived. Therefore, the trial court correctly sustained the preliminary
objections to the sixth amended complaint.
Furthermore, the trial court correctly dismissed Saterstad’s claims with
prejudice. The trial court had given Saterstad five chances to amend his
complaint, and in each subsequent amended complaint, he failed to state a
claim upon which relief could be granted. Therefore, we find that the trial
court did not abuse its discretion when it dismissed Saterstad’s complaint
with prejudice.
Saterstad’s second through sixth issues presented are intertwined and
therefore we will address them as one. Namely, the issue is whether the
trial court properly sustained the preliminary objections to Saterstad’s fourth
amended complaint and dismissed the complaint with prejudice. Saterstad’s
fourth amended complaint contained multiple counts including 1) breach of
_______________________
(Footnote Continued)
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous!”
Gray v. Huntzingeri, 147 A.3d 924, 927 n.1 (Pa. Super. 2016) (citing
Restatement (Second) of Torts § 46 comment d. (1965)).
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oral contract against Lock; 3)2 abuse of process against Lock; 4) fraud/fraud
in the inducement against Kishel; 5) breach of oral contract against Kishel;
6) intentional infliction of emotional distress against Lock, Gochenour, and
Kishel; 7) an unfair trade practices claim against GKS, Murray, and
Gochenour; 8) negligent supervision against JSDC; 9) professional
malpractice against Kishel; and 10) professional malpractice against Lock.
As we have previously addressed counts 1, 3, 6, and 7 above, we need not
address them again.3
Upon review of Saterstad’s complaint, it is clear that all of his claims
are professional liability claims. Our rules provide that
(a) In any action based upon an allegation that a licensed
professional deviated from an acceptable professional
standard, the attorney of the plaintiff, or the plaintiff if not
represented, shall file with the complaint or within sixty
days after the filing of the complaint, a certificate of merit
signed by the attorney or party that either
(1) An appropriate licensed professional has supplied a
written statement that there exists a reasonable
probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the
subject of the complaint, fell outside acceptable
professional standards and that such conduct was a
cause in bringing about the harm, or
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2
Saterstad’s fourth amended complaint does not contain a count 2.
3
The order sustaining the preliminary objections and dismissing Saterstad’s
fourth amended complaint is properly before this Court because it did not
dismiss all claims against all defendants and this is Saterstad’s first
opportunity to challenge the order.
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(2) The claim that the defendant deviated from an
acceptable professional standard is based solely on
allegations that other licensed professionals for whom
the defendant is responsible deviated from an
acceptable professional standard, or
(3) Expert testimony of an appropriate licensed professional
is unnecessary for prosecution of the claim.
Pa.R.C.P. 1042.3. As all of Saterstad’s claims are professional liability
claims, he was required to file a certificate of merit. After being given
numerous opportunities to do so, Saterstad failed to provide a certificate of
merit. Moreover, the trial court gave Saterstad sufficient opportunity to
amend his complaint and he failed to plead a claim upon which relief could
be granted. Therefore, the trial court properly found that Saterstad’s
complaint was insufficient and dismissed it with prejudice.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
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