J-S81003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICHOLAS L. BOWEN IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
CLYDE K. MIDDLETON
Appellee No. 1072 MDA 2018
Appeal from the Order Entered September 27, 2017
In the Court of Common Pleas of Columbia County
Civil Division at No: DT-6613 No. 2015-CV-673
BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019
Appellant, Nicholas L. Bowen, appeals pro se from the September 27
2017 order granting judgment on the pleadings in favor of Appellee, Clyde K.
Middleton in this legal malpractice action against Appellee. We affirm.
In the underlying criminal action, Appellant pled guilty to first-degree
murder in connection with the rape and murder of a four-year-old girl.
Appellant was seventeen years old at the time of the offense. On September
30, 1998, the trial court sentenced Appellant to life in prison without parole.
On February 20, 2013, Appellee entered his appearance on behalf of
Appellant for Appellant’s appeal of the dismissal of a serial petition under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Appellant
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* Former Justice specially assigned to the Superior Court.
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asked Appellee to challenge his sentence based on the United States Supreme
Court’s opinion in Miller v. Alabama, 132 S. Ct. 2455 (2012), which
prohibited mandatory sentences of life without parole for juvenile offenders.
Appellant’s appeal was continued, on motion of the Commonwealth, pending
the outcome of Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). The
Cunningham Court issued its opinion on October 30, 2013, holding that
Miller was not retroactive. Appellant’s appeal was therefore dismissed on
December 9, 2013, and Appellee pursued the matter no further.
On January 27 2016, however, the United States Supreme Court issued
its opinion in Montgomery v. Louisiana, 136 S. Ct. 718 (2016) holding that
Miller applied retroactively. The Pennsylvania Supreme Court, in
Commonwealth v. Batts, 163 A.3d 410, 439 n.8 (Pa. 2017), recognized that
Montgomery abrogated Cunningham. Thereafter, Appellant filed another
PCRA petition and received a new sentencing proceeding based on Miller and
Montgomery.1
Appellant commenced this malpractice action against Appellee on May
20, 2015, alleging that Appellee committed malpractice in failing to challenge
the December 9, 2013 dismissal of his appeal pursuant to Cunningham.
Appellee filed preliminary objections, and Appellant filed an amended
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1 On resentencing, the trial court once again imposed life in prison without
parole. This Court vacated the new sentence and remanded for further
proceedings. Commonwealth v. Bowen, 1078 WDA 2017 (Pa. Super.
September 5, 2018) (unpublished memorandum).
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complaint on March 7, 2016. Appellee filed an answer and new matter on
March 28, 2016 and a motion for judgment on the pleadings on April 21, 2016.
Appellant filed a motion for summary judgment on June 13, 2017. The trial
court heard argument on July 14, 2017 and subsequently entered an order
granting Appellee’s motion. This timely appeal followed.
Our standard of review is well settled:
[A]ppellate review of a trial court’s decision to grant or deny
judgment on the pleadings is limited to determining whether the
trial court committed an error of law or whether there were facts
presented which warrant a jury trial. In conducting this review,
we look only to the pleadings and any documents properly
attached thereto. Judgment on the pleadings is proper only where
the pleadings evidence that there are no material facts in dispute
such that a trial by jury would be unnecessary.
In passing on a challenge to the sustaining of a motion for
judgment on the pleadings, our standard of review is limited. We
must accept as true all well pleaded statements of fact of the party
against whom the motion is granted and consider against him only
those facts that he specifically admits. We will affirm the grant of
such a motion only when the moving party’s right to succeed is
certain and the case is so free from doubt that the trial would
clearly be a fruitless exercise.
Bowman v. Sunoco, Inc., 986 A.2d 883, 886 (Pa. Super. 2009), affirmed,
65 A.3d 901 (Pa. 2013).
To succeed on a tort-based legal malpractice cause of action, a plaintiff
must prove that 1) he employed the attorney; 2) the attorney failed to
exercise ordinary skill and knowledge; and 3) that such failure was the
proximate cause of harm to the plaintiff. Wachovia Bank, N.A. v. Feretti,
935 A.2d 565, 570-71 (Pa. Super. 2007). If the claim is based on breach of
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contract (Appellant is not specific) the plaintiff must prove that the attorney
failed to provide the plaintiff “with professional services consistent with those
expected of the profession at large.” Id.
Appellant’s cause of action fails under either scenario. As of the
December 9, 2013 dismissal of his appeal, the Pennsylvania Supreme Court’s
opinion in Cunningham was controlling, and it precluded retroactive
application of Miller to Appellant’s criminal sentence. The United States
Supreme Court had yet to address the issue. Appellant fails to explain how
Appellee committed legal malpractice by failing to pursue the matter further.
In any event, Appellant successfully sought a new sentencing proceeding after
Montgomery abrogated Cunningham. Thus, Appellant has received relief
under the substantive holding of Miller, which is precisely the relief he hoped
Appellee would obtain for him. Appellant cannot prove damages, regardless
of whether his claim against Appellee is based in tort or contract. We therefore
affirm the order entering judgment on the pleadings in favor of Appellee. 2
Order affirmed. Jurisdiction relinquished.
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2 Appellant also purports to appeal from the trial court’s denial of his motion
for summary judgment. Ordinarily, an order denying summary judgment is
interlocutory and not immediately appealable. Maas v. UPMC Presbyterian
Shadyside, 192 A.3d 1139, 1141 n.1 (Pa. Super. 2018). We discern no
reason to conclude otherwise in this case, and even if we did, the appeal would
fail for reasons explained in the main text.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019
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