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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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2018 in [an unpublished memorandum].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:
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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
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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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