J-A22024-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
LILLIE COLEY AND : IN THE SUPERIOR COURT OF
WANDA SATTERTHWAITE, : PENNSYLVANIA
:
Appellants :
:
v. :
:
JAMES ROCCO III, ESQ. AND :
ROCCO LAW FIRM, LLC, :
:
Appellees : No. 2083 EDA 2018
Appeal from the Judgment Entered June 12, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 02625 November Term, 2016
BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 03, 2019
Lillie Coley and Wanda Satterthwaite (collectively, Appellants) appeal
from the judgment entered on June 12, 2018, against them and in favor of
James Rocco III, Esquire and Rocco Law Firm, LLC (collectively, Rocco Law)
in this legal malpractice action.
The underlying action involves establishment of paternity of
Satterthwaite’s biological child, R.S. (Child), born in July 1993. The record
indicates that Coley was awarded custody of Child. A prior panel of this Court
set forth the relevant facts and procedural history of the underlying action as
follows.
In June 2010, [Satterthwaite] filed [in the trial court] two motions
for genetic testing to determine the paternity of [C]hild, one
naming [S.C.] and the second naming another individual, [R.G.],
who had previously been identified as the father of [C]hild and
* Retired Senior Judge assigned to the Superior Court.
J-A22024-19
had been ordered to pay for the support of [C]hild. On July 16,
2010, the [trial] court denied [Satterthwaite’s] motions based on
the doctrine of estoppel. In its order with respect to [S.C.], the
trial court stated that [Satterthwaite] could not wait seventeen
years to name a second person as the father of [C]hild when she
identified another person as the father sixteen years before and
never previously attempted to recant that identification. In March
2011, [Satterthwaite] filed a second motion for genetic testing
naming [S.C.].[1] By order dated May 19, 2011, the trial court
denied this second motion for genetic testing on the basis that the
matter was res judicata[,] as a final order was entered in this
matter on July 16, 2010.
Satterthwaite v. Carter, 75 A.3d 561 (Pa. Super. 2013) (unpublished
memorandum at 1-2).
In October 2011, Coley retained Rocco Law to petition the trial court to
vacate the July 16, 2010 and the May 11, 2011 orders denying Satterthwaite’s
petitions for genetic testing of S.C. At the time Rocco Law was retained, it
was well past the time period to appeal these orders; however, Rocco Law
successfully petitioned the trial court to vacate the orders.2 The trial court
heard argument on the matter on May 15, 2012, which Attorney Rocco, Coley,
and Satterthwaite attended, along with S.C. and his counsel. By order dated
June 14, 2012, the trial court granted the petition filed on behalf of
Satterthwaite and vacated the two orders at issue. On appeal, this Court
reversed, holding that the trial court lacked jurisdiction to vacate the orders
1 In April 2011, R.G.’s paternity of Child was disestablished.
2On January 12, 2012, Rocco Law filed a petition to vacate on behalf of Coley,
and on April 27, 2012, Rocco Law filed an amended petition to vacate on behalf
of Coley and a petition to vacate on behalf of Satterthwaite.
-2-
J-A22024-19
because more than 30 days had passed since they were entered and no
extraordinary cause existed to justify the trial court’s intervention.
Satterthwaite, supra (unpublished memorandum at 4).
More than three and one-half years later, on November 29, 2016,
Appellants filed pro se a complaint against Rocco Law alleging legal
malpractice arising from Rocco Law’s representation in the underlying action.
Specifically, Appellants alleged Rocco Law should have “just requested the
orders [for genetic testing] be set aside for [] Coley since they were no longer
in effect” and that Rocco Law improperly filed a petition to vacate the orders
on behalf of Satterthwaite without Appellants’ knowledge. Complaint,
11/29/2016, at 3-4, 10 (unnecessary capitalization omitted). Rocco Law filed
an answer and new matter on January 23, 2017. Appellants filed a reply to
the new matter on February 10, 2017.
On July 20, 2017, Rocco Law filed a motion for summary judgment,
claiming the action was barred by the statute of limitations. Appellants
opposed,3 and on October 24, 2017, the trial court denied the motion for
summary judgment. Thereafter, Rocco Law filed a motion to strike and
Appellants filed motions for extraordinary relief and to proceed in forma
pauperis, all of which were denied by the trial court.
3 On September 19, 2017, the trial court quashed Appellants’ opposing motion
for procedural deficiencies. Appellants refiled an answer in opposition on
October 6, 2017.
-3-
J-A22024-19
On April 4, 2018, Rocco Law filed a motion for judgment on the
pleadings.4 Appellants filed a memorandum in opposition on April 10, 2018,
and Rocco Law replied on April 20, 2018. On April 23, 2018, Appellants filed
a second response in opposition to the motion for judgment on the pleadings.
Also on April 23, 2018, Appellants sought leave to amend their complaint. 5
The next day, April 24, 2018, Appellants filed a response to Rocco Law’s April
20, 2018 reply. On May 3, 2018, Rocco Law filed a reply to Appellants’ second
response in opposition.
4 Rocco Law summarized their motion follows.
[Rocco Law’s] motion sought judgment in their favor on the basis
that (1) the materials attached to [Appellants’] complaint did not
support the premise of their claims; (2) [Appellants’] claims failed
as a matter of law because they did not allege they sustained
damages attributable to actions conduct by [Rocco Law]; (3)
[Appellants’] claims failed as a matter of law because the Rules of
Professional Conduct are not a basis for civil liability against
[Rocco Law]; (4) [Appellants’] alleged damages, in the form of
disgorgement of attorneys’ fees and costs in this action, punitive
damages and fines and reprimands, did not provide a valid
measure of actual damages and as a result [Appellants’] claims
failed; and (5) [to the extent Appellants alleged a breach of
contract claim, the] claim failed because [Appellants] did not
allege the existence of a contract between Satterthwaite and
[Rocco Law].
Rocco Law’s Brief at 2.
5 Appellants sought to attach the missing third page of the fee agreement
between Rocco Law and Coley, and to add a new cause of action for
“concealment of evidence.” 4/23/2018, at 1-5 (unpaginated). On May 31,
2018, the trial court granted the motion as to the missing page, but denied it
as to the new claim. Order, 5/31/2018.
-4-
J-A22024-19
On June 12, 2018, the trial court granted Rocco Law’s motion for
judgment on the pleadings and entered judgment in favor of Rocco Law and
against Appellants. Appellants moved for reconsideration on July 6, 2018,
which Rocco Law opposed.6 On July 9, 2018, Appellants filed the instant
appeal. Both Appellants and the trial court complied with Pa.R.A.P. 1925.
Appellants present the following question for our review: “Did the trial
court err as a matter of law in holding that no genuine issues of material fact
existed and the moving party was entitled to judgment on the pleadings?”
Appellants’ Brief at 5.
Pennsylvania Rule of Civil Procedure 1034 governs motions for judgment
on the pleadings and provides that “[a]fter the relevant pleadings are closed,
but within such time as not to unreasonably delay trial, any party may move
for judgment on the pleadings.” Pa.R.Civ.P. 1034(a). “A motion for judgment
on the pleadings is similar to a demurrer. It may be entered when there are
no disputed issues of fact and the moving party is entitled to judgment as a
matter of law.” Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 570 (Pa.
Super. 2007) (citation omitted).
Appellate review of an order granting a motion for judgment on
the pleadings is plenary. The appellate court will apply the same
standard employed by the trial court. A trial court must confine
its consideration to the pleadings and relevant documents. The
court must accept as true all well pleaded statements of fact,
admissions, and any documents properly attached to the
pleadings presented by the party against whom the motion is filed,
considering only those facts which were specifically admitted.
6 It does not appear the trial court ruled on said motion.
-5-
J-A22024-19
Id. (citation omitted).
As a preliminary matter, we address Appellants’ compliance with our
rules of appellate procedure. After a review of the record, and Appellants’
brief and reply brief, we conclude Appellants have waived their challenge on
appeal by their deficient appellate brief. Wilkins v. Marsico, 903 A.2d 1281,
1284 (Pa. Super. 2006) (“This Court may … dismiss an appeal if the appellant
fails to conform to the requirements set forth in the Pennsylvania Rules of
Appellate Procedure.”), citing Pa.R.A.P. 2101. Appellants’ argument is
woefully undeveloped. Other than a boilerplate restatement of the law
relating to judgment on the pleadings, Appellants do not discuss or cite to any
pertinent authorities. Compare Appellants’ Brief at 17-23 with Pa.R.A.P.
2119(a) (stating argument section of brief must contain discussion and
citation of pertinent authorities); see also Hawkey v. Peirsel, 869 A.2d 983,
990 (Pa. Super. 2005) (holding failure to cite to relevant authority in support
of argument resulted in waiver of issue presented on appeal). Nowhere in
Appellants’ brief do they state the elements for a legal malpractice cause of
action or discuss how the factual allegations and exhibits attached to their
complaint support such a claim.7 Accordingly, because Appellants have failed
7 Appellants make a passing reference to “the elements required to show legal
malpractice” in their reply brief, but fail to set forth all of the elements and
fail to cite or discuss relevant case law. See Appellants’ Reply Brief at 6, 11.
Similarly, in their reply brief, Appellants make a passing reference to a claim
for fraud, but fail to cite or discuss any relevant authorities or how the factual
-6-
J-A22024-19
to develop their issue on appeal in any meaningful fashion capable of review,
it is waived. Commonwealth v. Patterson, 180 A.3d 1217, 1229 (Pa.
Super. 2018) (finding waiver because appellant’s brief failed to develop issue
in any meaningful fashion capable of appellate review).
Even if Appellants did not waive their issue on appeal, we would
nonetheless conclude it is without merit. The following principles apply to
Appellants’ claim for legal malpractice.
An action for legal malpractice may be brought in either contract
or tort. The elements of a legal malpractice action, sounding in
negligence, include: (1) employment of the attorney or other basis
for a duty; (2) failure of the attorney to exercise ordinary skill and
knowledge; and (3) that such failure was the proximate cause of
the harm to the plaintiff. With regard to a breach of contract
claim, an attorney who agrees for a fee to represent a client is by
implication agreeing to provide that client with professional
services consistent with those expected of the profession at large.
Moreover, … the two-year limitations period applies to the
negligence claim and the four-year limitations period applies to
the breach of contract claim.
Wachovia Bank, N.A., 935 A.2d at 570-71 (citations, brackets, and some
quotation marks omitted).
An essential element of legal malpractice cause of action is “proof of
actual loss rather than a breach of a professional duty causing only nominal
damages, speculative harm or the threat of future harm.” Kituskie v.
Corbman, 714 A.2d 1027, 1030 (Pa. 1998).
A legal malpractice action is different because … a plaintiff must
prove a case within a case since he must initially establish by a
allegations and exhibits attached to their complaint support such a claim. Id.
at 9, 11.
-7-
J-A22024-19
preponderance of the evidence that he would have recovered a
judgment in the underlying action…. It is only after the plaintiff
proves he would have recovered a judgment in the underlying
action that the plaintiff can then proceed with proof that the
attorney he engaged to prosecute or defend the underlying action
was negligent in the handling of the underlying action and that
negligence was the proximate cause of the plaintiff’s loss since it
prevented the plaintiff from being properly compensated for his
loss.
Id.
[T]he Pennsylvania Supreme Court has firmly established the
elements in a legal malpractice cause of action and emphasized
that proof of actual loss is not satisfied by evidence of remote or
speculative harm. Accordingly, to prove actual injury,
appellant must demonstrate that she would have prevailed
in the underlying action in the absence of appellees’
alleged negligence.
Communications Network Int'l, Ltd. v. Mullineaux, 187 A.3d 951, 960
(Pa. Super. 2018), quoting Myers v. Robert Lewis Seigle, P.C., 751 A.2d
1182, 1185 (Pa. Super. 2000) (emphasis in original).
Instantly, in support of their legal malpractice cause of action,
Appellants averred that Coley retained Rocco Law to petition the trial court to
vacate two orders for genetic testing of S.C., but Rocco Law filed a petition on
behalf of Satterthwaite without Appellants’ knowledge and consent.8
8 Appellants have made no effort to identify whether their legal malpractice
claim sounds in tort or breach of contract. It appears a claim sounding in tort
would be barred by the statute of limitations, but we need not make such a
determination because, as discussed infra, under either theory, Appellants fail
to satisfy the elements of the claim. Appellants also argue there is a factual
dispute as to whether Rocco Law represented Satterthwaite. See Appellants’
Brief at 19-20; Appellants’ Reply Brief at 11. Even accepting as true
Appellants’ claim that Rocco Law did not represent Satterthwaite, Appellants
-8-
J-A22024-19
Complaint, 11/29/2016, at 1, 3, 5, 6. Appellants argue that said filing
rendered “Coley’s claim moot.” See Appellants’ Brief at 19. In essence,
Appellants claimed that Rocco Law only represented Coley, not Satterthwaite,
and took advantage of Satterthwaite while she was in the hospital by having
Satterthwaite sign the verification to a petition to vacate without
Satterthwaite’s knowledge. Complaint, 11/29/2016, at 6. According to
Appellants, Rocco Law “switched” clients and “did this for the sole reason to
help [] S.C.’s defense team.” Id. at 6, 8 (capitalization altered). Appellants
asserted that since Coley had custody of Child, Coley’s petition to vacate, not
Satterthwaite’s, should have been considered by the trial court. Id. at 7.
According to Appellants, Rocco Law colluded with the attorney representing
S.C. at the hearing to remove Coley’s name from the petition to vacate. Id.
Appellants appeared to assert that the attorneys colluded so that if
Satterthwaite’s petition to vacate was successful at the trial court, it would be
overturned on appeal, thereby favoring S.C. Id.
Our review of the record does not show that Appellants’ complaint
sufficiently pleaded a cause of action for legal malpractice. Appellants did not
have nonetheless failed to state a claim for legal malpractice as to
Satterthwaite. Appellants fail to satisfy the employment-of-the-attorney
element of a legal malpractice claim sounding in tort because they averred
that Satterthwaite was not Rocco Law’s client. See Complaint, 11/29/2016,
at 6, 8, Exh. M; Wachovia Bank, N.A., supra. Similarly, Appellants have
not asserted the existence of a contractual relationship between Satterthwaite
and Rocco Law as required for a breach of contract claim. See id.
-9-
J-A22024-19
plead facts to demonstrate they would have prevailed in the underlying action
in the absence of Rocco Law’s alleged negligence, i.e., the filing of a petition
to vacate on behalf of Satterthwaite, or that Appellants sustained damage due
to Rocco Law’s actions. As discussed supra, and acknowledged by Appellants
in their complaint, see id. at 3, Rocco Law successfully achieved Appellants’
objective of vacating the orders at issue, but the trial court’s June 14, 2012
order was reversed on appeal. Thus, Appellants did not sustain damages in
the trial court stemming from Rocco Law’s alleged negligence because the
petition to vacate was granted. While the trial court’s June 14, 2012 order
was reversed on appeal, the basis for the reversal had nothing to do with who
the petitioner was below. Rather, this Court reversed because the trial court
lacked jurisdiction to vacate the orders at issue where more than 30 days had
passed since they were entered and no extraordinary cause existed to justify
the trial court’s intervention. Satterthwaite, supra. Thus, the outcome of
the underlying action would have been the same regardless of whether Coley
or Satterthwaite was named as petitioner. Accordingly, Appellants’ legal
malpractice claim fails because Appellants did not plead facts sufficient to
demonstrate actual injury, i.e., that they would have prevailed in the
underlying action in the absence of Rocco Law’s alleged negligence.
Furthermore, in support of their assertion that Rocco Law filed the
petition to vacate on behalf of Satterthwaite without Appellants’ knowledge or
consent, Appellants attached to their complaint, inter alia, (1) the April 27,
- 10 -
J-A22024-19
2012 petition to vacate filed on behalf of Satterthwaite, which included a
verification signed by Satterthwaite on April 25, 2012; (2) the January 12,
2012 petition to vacate filed on behalf of Coley, which included a verification
signed by Coley on January 11, 2012; (3) the transcript of the May 15, 2012
hearing on the petitions to vacate before the trial court, which shows both
Appellants attended; and (4) a statement dated October 31, 2016, signed by
Satterthwaite in which she acknowledges she signed the verification to the
petition to vacate and attended the May 15, 2012 hearing. Complaint,
11/29/2016, at Exhs. G, I, M, O. The transcript attached to Appellants’
complaint shows that, in the presence of Appellants, Attorney Rocco identified
himself as counsel for Appellants, explained that petitions had been filed on
behalf of both Coley and Satterthwaite due to Satterthwaite’s health, and
when asked by the trial court, indicated that the matter would proceed with
Satterthwaite as petitioner. Id. at Exh. I (N.T., 5/15/2012, at 4, 18-19). In
fact, Satterthwaite interrupted during this exchange between Attorney Rocco
and the trial court to correct Attorney Rocco as to her health condition, but
notably, Satterthwaite said nothing about whether she or Coley would be
proceeding as petitioner. Id. Thus, the record belies Appellants’ assertion
that the petition to vacate on behalf of Satterthwaite was filed without
Appellants’ knowledge or consent. No relief is due.9
9 On appeal, Appellants make no argument as to any cause of action except
legal malpractice and a passing reference to fraud. As noted supra, Appellants
- 11 -
J-A22024-19
Finally, to the extent Appellants argue their pro se status below excuses
their “potential drafting errors and lack of detail in the legal analysis appearing
on the pleadings,” see Appellants’ Brief at 17, we note that pro se status
confers no special benefit upon Appellants. Norman for Estate of Shearlds
v. Temple Univ. Health Sys., 208 A.3d 1115, 1118-19 (Pa. Super. 2019)
(“Although this Court is willing to liberally construe materials filed by a pro se
litigant, pro se status confers no special benefit upon the appellant. To the
contrary, any person choosing to represent himself in a legal proceeding must,
to a reasonable extent, assume that his lack of expertise and legal training
will be his undoing.”) (quoting Wilkins, 903 A.2d at 1284); Hoover v.
fail to cite or discuss any relevant authorities or how the factual allegations
and exhibits attached to their complaint support a fraud claim. Thus, to the
extent Appellants’ complaint purports to allege theories of liability other than
legal malpractice, Appellants have waived on appeal any challenge thereto.
Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018) (“The failure to
develop an adequate argument in an appellate brief may result in waiver of
the claim under Pa.R.A.P. 2119. We shall not develop an argument for an
appellant, nor shall we scour the record to find evidence to support an
argument; instead, we will deem issue to be waived.”) (citations, brackets,
and quotation marks omitted). Further, to the extent Appellants’ complaint
attempts to assert a cause of action for violation of the Pennsylvania Rules of
Professional Conduct, see Complaint, 11/29/2016, at 12-15, we note that
violation of these rules does not give rise to a civil cause of action. See
Pa.R.P.C. Preamble and Scope [19] (“Violation of a Rule [of Professional
Conduct] should not itself give rise to a cause of action against a lawyer nor
should it create any presumption in such a case that a legal duty has been
breached.…[The Rules] are not designed to be a basis for civil liability.”); see
also In re Adoption of M.M.H., 981 A.2d 261, 272 (Pa. Super. 2009) (“The
Rules of Professional Conduct do not carry the force of substantive law, nor
do they broaden an attorney’s duties in civil legal proceedings; instead, they
are a basis upon which to sanction a lawyer through the disciplinary
process.”).
- 12 -
J-A22024-19
Davila, 862 A.2d 591, 595-96 (Pa. Super. 2004) (“A pro se litigant is not
absolved from complying with procedural rules.”); First Union Mortgage
Corp. v. Frempong, 744 A.2d 327, 333 (Pa. Super. 1999) (“A pro se litigant
is granted the same rights, privileges and considerations as those accorded a
party represented by counsel; however, pro se status does not entitle a party
to any particular advantage because of his or her lack of legal training.”).
Accordingly, we affirm the judgment entered on June 12, 2018, against
Appellants and in favor of Rocco Law.10, 11
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/19
10 We decline to address Appellants’ bald and conclusory claim that Rocco Law
intentionally omitted five pages in the attachments to its motion for judgment
on the pleadings. See Appellants’ Brief at 22. Appellants do not explain in
any fashion whatsoever why they believe the pages were intentionally omitted
or that it was anything more than a clerical error, nor do Appellants explain
how they have been prejudiced by this omission. According to Appellants, the
pages purportedly omitted by Rocco Law are pages which were attached to
their complaint filed with the trial court; thus, the pages were already a part
of the record in this case.
11 The remaining statements of error contained in Appellants’ Rule 1925(b)
statement are waived for failure to address and develop them in their brief.
Compare Pa.R.A.P. 1925(b), 8/14/2018, at 1 (unnumbered) with Appellants’
Brief; Milby, 189 A.3d at 1079.
- 13 -