J-S27018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENNIS HORTON, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JAMES S. BRUNO : No. 2176 EDA 2016
Appeal from the Order June 9, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 130202725
BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*
MEMORANDUM BY OTT, J.: FILED July 3, 2017
Dennis Horton appeals, pro se, from the order entered June 9, 2016,
in the Philadelphia County Court of Common Pleas, granting the motion for
summary judgment filed by defendant, James S. Bruno, in this legal
malpractice action.1 Horton is currently serving a prison term of life
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
We note Horton’s notice of appeal filed on July 12, 2016, was premature
because, at that time, his motion for summary judgment, filed in May of
2016, was still outstanding. See Pa.R.A.P. 341(b)(1) (a final order is one
that, inter alia, “disposes of all claims and of all parties”). However, on
September 13, 2016, the trial court entered an order denying Horton’s
motion. Accordingly, Horton’s appeal is properly before us. See Pa.R.A.P.
905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”).
J-S27018-17
imprisonment for a 1994 conviction of second-degree murder2 and related
charges. Bruno served as Horton’s Post Conviction Relief Act (“PCRA”)3
counsel from 2009 to 2011. Thereafter, Horton reported Bruno to the
Pennsylvania Disciplinary Board, and based upon his representation of
Horton and several other clients, Bruno was subsequently suspended from
the practice of law for two years. While the disciplinary proceedings were
pending, Horton filed this civil complaint asserting legal malpractice. On
appeal, Horton contends the trial court erred or abused its discretion by: (1)
denying his pretrial motion to amend his complaint; (2) denying his motion
to compel Bruno to produce certain documents; and (3) granting Bruno’s
motion for summary judgment. For the reasons below, we affirm.
The facts and procedural history underlying this appeal are aptly
summarized by the trial court as follows:
On September 30, 1994, a jury convicted [Horton] of
murder in the second degree, three counts of aggravated
assault, four counts of robbery, and one count each of criminal
conspiracy and possessing an instrument of crime. [See
Commonwealth v. Horton, 48 A.3d 479 (Pa. Super. 2012)
(unpublished memorandum)]. [Horton] was sentenced to an
aggregate term of life imprisonment for the murder plus
eighteen and a half to sixty-one years’ imprisonment for the
remaining offenses. On March 20, 1996, the Superior Court
affirmed the judgment of sentence. Commonwealth v.
Horton, 678 A.2d 828 (Pa. Super. 1996) (unpublished
mem[orandum]).
____________________________________________
2
See 18 Pa.C.S. § 2502.
3
42 Pa.C.S. §§ 9541-9546.
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On October 11, 1996, [Horton] retained private counsel
and filed his first Post Conviction Relief Act (“PCRA”) petition.1
The trial court dismissed [Horton’s] PCRA petition, and the
Superior Court affirmed. See Commonwealth v. Horton, 736
A.2d 9 (Pa. Super. 1998) (unpublished mem[orandum]), appeal
denied, 738 A.2d 455 (Pa. 1999).
__________
1
The pleadings and the Superior Court opinion, Horton,
48 A.3d 479, maintain that [Horton’s] first PCRA petition
did not raise his original trial counsel’s ineffective
assistance in failing to subpoena medical records. The
Superior Court added: “[Horton] could have filed a PCRA
petition long before now, claiming trial counsel’s
ineffectiveness in not seeking to subpoena the medical
records, and the records could have been subpoenaed at
that time.” Horton, 48 A.3d 479.
__________
On January 30, 2006, around ten years after the judgments
of sentence became final,2 [Horton] filed his second PCRA
petition, raising an after-discovered facts time bar exception.
On March 20, 2007, the trial court issued notice under
Pa.R.Crim.P. 907 of its intention to dismiss the petition as
untimely. On March 11, 2009, [Bruno] was appointed to
represent [Horton]. On December 8, 2009, [Bruno] filed an
amended PCRA petition on behalf of [Horton], raising additional
claims to the time bar exception. On May 4, 2010, the trial court
issued a Rule 907 notice of its intention to dismiss the amended
petition as without merit. On June 1, 2010, [Horton] filed a
response, alleging that [Bruno] rendered ineffective assistance in
his amended petition. The trial court dismissed the petition on
September 16, 2010. On October 18, 2010, [Horton] appealed,
contending that, among other things, his “after-discovered”
medical records of his knee injury, which occurred about a
month before the crime, entitled him to a time bar exception.
On April 25, 2011, [Horton] filed a pro se motion seeking the
removal of [Bruno] and a Grazier hearing. [See]
Commonwealth v. Grazier, 713 A.2d 81 (1998). Following the
Grazier hearing, the trial court granted [Horton’s] request and
permitted [Bruno] to withdraw. On April 17, 2012, the Superior
Court affirmed the trial court’s dismissal of the second PCRA
petition, reasoning that the petition was untimely, no valid
exception to the time bar existed, and the remaining issues were
meritless. Horton, 48 A.3d 479, appeal denied, 60 A.3d 535
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(Pa. 2012). In or around April 2012, [Horton] made a complaint
to the Disciplinary Board of the Supreme Court of Pennsylvania
(“Disciplinary Board”) regarding [Bruno].3
__________
2
[Horton’s] judgment of sentence became final on April
19, 1996 pursuant to 42 Pa.C.S. § 9545(b)(3) and
Pa.R.A.P. 1113. Horton, 48 A.3d 479.
3
In May 2013, the Office of Disciplinary Counsel ("ODC")
charged [Bruno] with violations of the Rules of Professional
Conduct, arising out of eleven separate claims against him.
See Disciplinary Board File No. 180 DB 2011 (Pa. 2014).
On July 18, 2014, the Disciplinary Board recommended the
suspension of [Bruno’s] license to practice law for one year
and one day, with probation of three years, subject to
conditions. On November 13, 2014, upon consideration of
the Report and Recommendation of the Disciplinary Board,
the Supreme Court suspended [Bruno] from the practice of
law for a period of two years retroactive to February 26,
2013, followed by a two–year probation [term] after
reinstatement, subject to conditions. See Supreme Court
Order dated November 13, 2014.
__________
On February 26, 2013, [Horton] filed the instant action
against [Bruno] in assumpsit (Count I) and in trespass (Count
II), alleging that [Bruno’s] ineffective assistance in his criminal
matter constituted breach of contract and negligence.4 Most
significantly, the complaint averred that [Bruno] failed to obtain
and attach affidavits of his treating medical providers and failed
to subpoena medical records5 to his amended PCRA petition,
which, according to [Horton], prevented him from proving his
innocence. After the case was transferred from arbitration to
trial, [Bruno] filed an answer with new matter on July 14, 2014,
noting that (1) [Horton] never entered into a contractual
relationship with [Bruno], and the law does not recognize a
contractual relationship between court-appointed counsel and
defendant; (2) that [Horton] raised the issue of getting medical
treatment for his knee injury at trial; (3) that [Horton], in his
first PCRA petition, did not raise the issue of his original trial
counsel’s failure to secure his treating medical providers or
medical records; and (4) that [Horton] cannot show that but for
[Bruno’s] negligence (i.e. producing an allegedly defective
petition), [Horton] would have prevailed because one month
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prior to the crime, [Horton’s] medical records indicate that he
was walking with a normal gait. On August 6, 2014, [Horton]
filed his reply, stating that (1) a contractual obligation was
formed once [Bruno] accepted the appointment and entered his
appearance; (2) that the knee injury defense was unavailable at
trial because the hospital could not locate his file; (3) that it
would have been inappropriate and frivolous to allege that his
original trial counsel was ineffective for failing to secure his
medical records; (4) that [Horton] could have prevailed in his
second PCRA petition if [Bruno] followed a “multi-tier process,”
which we summarize here as good lawyering practices; and (5)
that the outcome of the trial would have been different if his
complete medical records along with testimony of his treating
medical providers and his employer6 were included in his second
PCRA petition. In [Horton’s] new matter, he raised for the first
time the enforcement of default judgment against [Bruno]. On
August 25, 2014, [Bruno] replied, claiming noncompliance with
the rules.
__________
4
On March, 25, 2013, [Horton] initiated his third PCRA
petition, requesting discovery and DNA testing. On June 3,
2015, the trial court issued a Rule 907 notice of its
intention to dismiss the amended petition as untimely.
5
Alternatively, [Bruno] failed to attach the copies of
[Horton’s] medical records obtained by [Horton] at the
prison medical department.
6
[Horton] also avers that [Bruno] failed to include the
testimony of his former supervisor Norman Whitest, who
witnessed [Horton’s] knee injury at work that occurred on
or about April 26, 1993. The Superior Court noted that
[Horton] could have raised the knee injury defense at trial
without the medical records, presenting Norman Whitest
as a witness to suggest that [Horton] could not have
committed the crime. Horton, 48 A.3d 479, n.4.
__________
On January 13, 2016, [Horton] filed a motion to compel
production of documents,7 wherein he sought to discover
[Bruno’s] documents exchanged with the Disciplinary Board and
with Attorney Sondra Rodrigues, who was counsel for a co-
defendant in the criminal matter; and [Bruno’s] counseling and
treatment records. [Bruno] answered, arguing, inter alia, that
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the requested items were irrelevant. [Horton] argued that the
items were relevant and pointed out that [Bruno] waived his
objections since his answer was untimely and failed to provide
any reason for the delay. This court denied the motion on May
24, 2016.
__________
7
The request for production of documents was served
around June 30, 2015. [Horton] followed up with a letter
requesting compliance around October 10, 2015.
__________
On April 5, 2016, [Bruno] moved for summary judgment
after discovery was completed and pleadings closed.
Specifically, [Bruno] argued that summary judgment was
appropriate because (1) there was no contractual relationship
between [Horton] and [Bruno], and (2) since the second PCRA
petition was held to be untimely by both the trial court and the
Superior Court, [Horton] could not have committed malpractice
for failing to include the medical evidence. On April 29, 2016,
[Horton] filed an answer in opposition to the motion for
summary judgment denying [Bruno’s] averments because a
contractual relationship allegedly existed and the Superior
Court’s holding on his second PCRA petition would have been
different but for [Bruno’s] negligence. On May 18, 2016,
[Horton] moved for summary judgment, arguing that no genuine
issues of materials facts exist in his two claims. This court
granted summary judgment in favor of [Bruno] on June 10,
2016. [Horton] thereafter filed his notice of appeal on July 12,
2016 and timely issued his Pa.R.A.P. 1925(b) statement of
errors complained of on appeal on August 25, 2016. [Horton’s]
motion for summary judgment was denied on September 13,
2016.
Trial Court Opinion, 9/16/2016, at 1-6 (most citations omitted).
In his first issue on appeal, Horton argues the trial court erred or
abused its discretion in denying his motion to amend his complaint “to
introduce new matters and evidence in support [] thereof, which was
unavailable at the time the Complaint was filed[,]” namely, the disciplinary
proceedings against Bruno. Horton’s Brief at 8. He asserts that while leave
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to amend lies within the discretion of the trial court, it should be liberally
granted. See id. Moreover, Horton contends that to the extent his motion
was defective in that he did not seek court approval to amend, the trial court
should have permitted him the opportunity to correct any defect before
denying the motion. See id. at 10. Furthermore, he maintains any delay in
filing the motion was attributable to Bruno, since he “never divulged the
existence of the information in those documents in response to the
complaint[.]” Id.
Pennsylvania Rule of Civil Procedure 1033 provides, in relevant part, a
party may amend a pleading at any time, “either by filed consent of the
adverse party or by leave of court[.]” Pa.R.C.P. 1033(a).
Our standard of review of a trial court’s order denying a plaintiff
leave to amend its complaint, … permits us to overturn the order
only if the trial court erred as a matter of law or abused its
discretion. The trial court enjoys “broad discretion” to grant or
deny a petition to amend. … Although the trial court generally
should exercise its discretion to permit amendment, … where a
party will be unable to state a claim on which relief could be
granted, leave to amend should be denied.
The Brickman Grp., Ltd. v. CGU Ins. Co., 865 A.2d 918, 926–927 (Pa.
Super. 2004) (internal citations omitted). “An abuse of discretion occurs
when a trial court ... overrides or misapplies the law, or exercises judgment
which is manifestly unreasonable, or the result of partiality, prejudice, bias
or ill will.” Keller v. Mey, 67 A.3d 1, 7 (Pa. Super. 2013).
Our review reveals no abuse of discretion on the part of the trial court.
First, we note Horton did not seek either Bruno’s consent, or the court’s
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permission, to amend his complaint. Rather, on April 29, 2016, more than
three years after he initiated the lawsuit, Horton filed a document titled,
“Motion Introducing Third, Fourth and Fifth New Matters.” See Motion
Introducing Third, Fourth and Fifth New Matters, 4/29/2016. The “new
matters” he sought to introduce were documents from Bruno’s disciplinary
proceedings, and, in particular Bruno’s stipulation to the facts underlying the
disciplinary complaint. See id. at 1. Horton asserted these stipulations
“prove[d] conclusively” the allegations in the legal malpractice complaint,
and entitled him to a judgment “in the sum of [$]75,000.00.” Id. at 3, 9.
See also id., Exhibit A, Supplemental Joint Stipulation of Facts in Bruno’s
disciplinary proceedings, 3/20/2013, at ¶¶ 7-93.
Rule 1033 explicitly requires either “filed consent of the adverse party”
or “leave of court” before a party may amend his complaint. Pa.R.C.P.
1033(a). Because Horton obtained neither, the trial court acted well within
its discretion in denying his belated amendment. Nevertheless, even if we
presume the trial court should have considered Horton’s pro se filing as a
petition seeking permission to amend, we still would conclude he is entitled
to no relief. As will be discussed infra, Bruno’s stipulations in the disciplinary
proceedings do not prove Horton’s legal malpractice claim. Therefore,
because the proposed amendments do not “state a claim on which relief
could be granted,” the trial court did not abuse its discretion in denying
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Horton permission to amend the pleadings.4 The Brickman Grp., Ltd.,
supra, 865 A.2d at 927. Accordingly, Horton’s first claim fails.
Second, Horton argues the trial court erred or abused its discretion in
denying his motion to compel the production of documents. See Horton’s
Brief at 12. By way of background, in June of 2015, Horton served Bruno
with a request for the production of documents including any and all
affidavits, documents, statements, and correspondence related to Bruno’s
disciplinary proceedings and mental health treatment, and any
correspondence between Bruno and Horton’s co-defendant’s counsel, Sondra
Rodriques, Esq., related to Horton’s appeal or Bruno’s disciplinary
proceeding. See Motion to Compel Production of Documents, 1/13/2016,
Exhibit A, Request for Production of Documents, dated 6/30/2015, at
unnumbered 2-5. When Bruno failed to respond to the discovery request,
Horton sent another letter in October of 2015 requesting Bruno’s
compliance. After Bruno continued to ignore the request, Horton filed a
motion to compel on January 13, 2016. Bruno filed a response on April 6,
____________________________________________
4
We note the judge who considered the proposed amendment was not the
same judge who ruled upon the motion to compel and summary judgment
motion. See Order, 5/26/2016. Therefore, the trial court, in its opinion,
presumed the amendment was not permitted because it was “improper
under Pa.R.C.P. 1033 and untimely.” Trial Court Opinion, 9/16/2016, at 17.
Nevertheless, we may affirm the decision of the trial court on any basis.
See Richmond v. McHale, 35 A.3d 779, 786 n.2 (Pa. Super. 2012).
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2016, and the trial court subsequently denied the motion by order dated
May 24, 2016.
Horton contends the court’s denial of his motion to compel was an
abuse of discretion or error of law. First, Horton asserts Bruno waived any
objection to the motion to compel because he did not file a response until
“130 days elapsed.” Horton’s Brief at 14, citing Pa.R.C.P. 4006(a)(2).5
Second, he maintains the information he requested regarding Bruno’s
disciplinary proceedings was relevant because the specific details underlying
the suspension “are closely related to the issues raised in [the] complaint
and provide irrefutable proof of the material facts in this case.” Id. at 16.
Third, Horton insists his requests were not overbroad, and the documents he
sought regarding Bruno’s mental health treatment were “relevant to proving
… [Bruno] was negligent in handling his PCRA appeal and was the proximate
cause in him losing that cause of action.” Id. at 17. Fourth, he claims the
information he sought regarding Bruno’s correspondence with Horton’s co-
defendant’s counsel would prove Bruno “obtained information from [the
other] attorney and, negligently, spliced it together into the amended
petition he filed, which caused it to be insufficient and fatally flawed.” Id.
____________________________________________
5
Rule 4006 provides, in relevant part, a party answering interrogatories
“shall serve a copy of the answers, and objections if any, within thirty days
after the service of the interrogatories.” Pa.R.C.P. 4006(a)(2).
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Our review of a trial court order regarding discovery matters is well-
settled:
The trial court is responsible for “[overseeing] discovery
between the parties and therefore it is within that court’s
discretion to determine the appropriate measure necessary to
insure adequate and prompt discovering of matters allowed by
the Rules of Civil Procedure.” Pennsylvania Rule of Civil
Procedure 4003.1 states:
Rule 4003.1 Scope of Discovery Generally. Opinions and
Contentions
(a) Subject to the provisions of Rules 4003.2 to 4003.5
inclusive and Rule 4011, a party may obtain discovery
regarding any matter, not privileged, which is relevant to
the subject matter involved in the pending action, whether
it relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other party ....
(b) It is not ground for objection that the information
sought will be inadmissible at trial if the information
sought appears reasonably calculated to lead to the
discovery of admissible evidence.
Pa.R.C.P. 4003.1(a)(b). Generally, discovery “is liberally allowed
with respect to any matter, not privileged, which is relevant to
the cause being tried.”
PECO Energy Co. v. Ins. Co. of N. Am., 852 A.2d 1230, 1233 (Pa. Super.
2004).
The trial court disposed of this issue as follows:
First, [Horton] requested all documents sent to or received
from the Disciplinary Board by [Bruno] before, during, and after
his suspension. Since [Bruno’s] disciplinary proceedings and
subsequent suspension were admitted, the production of
documents relating to those events were not relevant to any
issue which would have affected a material part of [Horton’s]
cause of action. Further, this request was overbroad, given the
drawn-out timeframe. Finally, the relevant documents
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concerning the disciplinary proceedings and suspension were
available to the public since November 2014.
Next, [Horton] requested all documents pertaining to in-
patient or out-patient counseling and treatment of [Bruno]
related to the suspension. This request was overbroad,
irrelevant, and normally would not lead to admissible evidence.
Additionally, [Horton] requested all documents submitted
by other complainants against [Bruno] in the same disciplinary
proceedings. [Horton’s] relevancy arguments for this far-
reaching request did not explain how these documents could
provide any relevant information to his case. This request was
denied for the same reasons set forth above.
Lastly, [Horton] requested all correspondence and
documents exchanged with Attorney Sondra Rodrigues related to
[Bruno’s] representation of [Horton]. This request was denied
for the same reasons set forth in the denial of [Horton’s] first
request related to the disciplinary proceedings and suspension.
Trial Court Opinion, 9/16/2016, at 16.
Our review reveals no error of law or abuse of discretion committed by
the trial court. First, we note Bruno’s failure to respond in a timely manner
to Horton’s requests for the production of documents or motion to compel
does not automatically entitle Horton to relief. “[T]he imposition of
sanctions always is subject to a balancing test and a weighing of various
factors.” McGovern v. Hosp. Serv. Ass'n of Ne. Pennsylvania, 785 A.2d
1012, 1019 (Pa. Super. 2001).
Second, we agree with the trial court’s conclusion that Horton’s
requests were overbroad, and much of the information he sought would
have been irrelevant to the present action. Essentially, Horton sought all
documents and records which were in any way related to the disciplinary
proceedings. As the trial court explained, the “relevant documents
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concerning the disciplinary proceedings and suspension were available to the
public since November 2014.” Id. In a joint stipulation of facts, Bruno
admitted he failed to respond promptly (if at all) to Horton’s letters and
requests for information about the PCRA case, and, in doing so, violated the
Pennsylvania Rules of Professional Conduct. See Motion Introducing Third,
Fourth and Fifth New Matters, 4/29/2016, Exhibit A, Supplemental Joint
Stipulation of Facts in Bruno’s disciplinary proceedings, 3/20/2013, at ¶ 93
(Bruno admitting he violated Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and
8.4(d), in his representation of Horton). However, as will be discussed infra,
Bruno’s failings do not prove he committed legal malpractice. Indeed, even
“a finding of ineffectiveness is not tantamount to a finding of culpable
conduct” in a legal malpractice action. Bailey v. Tucker, 621 A.2d 108,
115 n.14 (Pa. 1993). We agree with the trial court’s conclusion that none of
the information Horton requested would have proven the allegations in his
complaint. Accordingly, no relief is warranted.
In his third and final claim, Horton contends the trial court erred in
granting Bruno’s motion for summary judgment. Specifically, he argues (1)
the court’s ruling was premature because it was made before Bruno was
required to file an answer to Horton’s motion for summary judgment, and
(2) there were genuine issues of material fact in dispute.
When reviewing an order of the trial court granting summary
judgment, we must bear in mind the following:
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Summary judgment is appropriate where the record clearly
demonstrates there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812
A.2d 1218, 1221 (2002); Pa. R.C.P. No. 1035.2(1). When
considering a motion for summary judgment, the trial court must
take all facts of record and reasonable inferences therefrom in a
light most favorable to the non-moving party. Toy[ v.
Metropolitan Life Ins. Co.], 928 A.2d [186,] 195 [(Pa. 2007)].
Whether there are no genuine issues as to any material fact
presents a question of law, and therefore, our standard of review
is de novo and our scope of review plenary. Weaver v.
Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899,
902–03 (2007).
Estate of Agnew v. Ross, 152 A.3d 247, 259 (Pa. 2017).
First, Horton argues the trial court erred in granting Bruno’s motion for
summary judgment before the time expired for Bruno to file an answer to
Horton’s motion for summary judgment. He claims the court’s premature
ruling was prejudicial because “it deprived him of the answers to the
averments he forwarded in his summary judgment motion, which would
have caused the court to rule in his favor[.]” Horton’s Brief at 19.
The trial court disposed of this argument as follows:
This court ruled on [Bruno’s] motion for summary
judgment after [Horton] filed his response. [Bruno] did not have
to file a response to [Horton’s] motion, as this court understood
and was aware of the legal positions of the parties upon review
and consideration of all pleadings and affidavits. There appears
to be no authority on point that mandates a trial court cannot
dispose of a motion for summary judgment and its subsequent
response presently before the court until a non-movant filed his
own motion for summary judgment and the opposing party
responds.
Trial Court Opinion, 9/16/2016, at 13.
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We find no basis to disagree. Horton’s attempt to find statutory
support for his argument in the Pennsylvania Rules of Civil Procedure fails.
Although Rule 1035.3 requires an adverse party to file a response to a
motion for summary judgment, and the court may enter judgment against a
party who does not respond, the Rule does not contemplate the facts herein,
where the trial court disposes of a party’s motion for summary judgment
while a cross summary judgment motion is pending. As the court stated
above, Horton provides no support for his claim that the court’s actions were
improper. Moreover, the trial court was aware of all the relevant issues at
the time it granted Bruno’s motion. Accordingly, no relief is warranted.
Second, Horton argues the trial court erred or abused its discretion in
granting Bruno’s motion when material facts were in dispute. See Horton’s
Brief at 20. With regard to his assumpsit claim, Horton contends that
pursuant to Fiorentino v. Rappaport, 693 A.2d 208 (Pa. Super. 1997),
appeal denied, 701 A.2d 577 (Pa. 1997), once counsel and a defendant
enter into an attorney/client relationship, even if the attorney is court-
appointed, the client may sue for breach of contract or negligence. See
id. at 21-22. Furthermore, with regard to his negligence claim, Horton
maintains he “offered irrefutable proof that a) [Bruno] engaged in negligent
misconduct in his representation of [Horton], and b) his negligent
misconduct was the proximate cause of [Horton] losing his PCRA appeal.”
Id. at 20.
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Again, our review of the record, the parties’ briefs, and the relevant
case law reveals Horton is entitled to no relief. First, we agree with the trial
court’s determination that Horton cannot maintain a breach of contract
action against Bruno because Bruno was court-appointed, and “[Horton]
never retained [Bruno’s] services and had no contract with [Bruno].” Trial
Court Opinion, 9/16/2016, at 10. See Moore v. McComsey, 459 A.2d 841,
844 (Pa. Super. 1983) (finding plaintiff was subject to two-year statute of
limitations for negligence action in legal malpractice claim when counsel had
been court-appointed and appellate court “deem[ed] it unrealistic to attempt
to confer upon appellant the status of a third party beneficiary to a contract
between the Commonwealth and appointed counsel.”). See also Ibn-
Sadliika v. Riester, 551 A.2d 1112, 1114 n.2 (Pa. Super. 1988) (“It has
already been established that a contract of employment does not exist
between a defendant and court-appointed counsel, and that a legal
malpractice action against court-appointed counsel will lie only in
trespass.”), citing Moore, supra.
Moreover, Horton’s reliance on Fiorentino, supra, is misplaced. In
that case, the purportedly negligent attorney was hired by the plaintiff to
represent him in a civil action; he was not a court-appointed attorney in a
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PCRA case. This factual distinction is dispositive. Accordingly, Horton’s
breach of contact action fails.6
With regard to Horton’s negligence claim, we note the Supreme Court
in Bailey, supra, outlined the requisite elements for a legal malpractice
action sounding in trespass:
[W]e hold that a plaintiff seeking to bring a trespass action
against a criminal defense attorney, resulting from his or her
representation of the plaintiff in criminal proceedings, must
establish the following elements:
(1) The employment of the attorney;
(2) Reckless or wanton disregard of the defendant’s interest on
the part of the attorney;
(3) 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 acquittal or a complete dismissal of the charges.
(4) As a result of the injury, the criminal defendant/plaintiff
suffered damages.
(5) Moreover, a plaintiff will not prevail in an action in criminal
malpractice unless and until he has pursued post-trial remedies
and obtained relief which was dependent upon attorney error;
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6
Moreover, Horton’s reliance on the Pennsylvania Supreme Court’s decision
in Reese v. Danforth, 406 A.2d 735 (Pa. 1979), is also misplaced. Horton
quotes the holding of the Reese Court that “once the appointment of a
public defender in a given case is made, his public or state function ceases
and thereafter he functions purely as a private attorney concerned with
servicing his client … [and] he ought to be subject to liability for tortious
conduct.” Id. at 739. However, the Reese Court was concerned only with
an attorney’s liability for negligent conduct; it did not consider whether a
client may maintain a breach of contract action against a court-appointed
attorney.
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additionally, although such finding may be introduced into
evidence in the subsequent action it shall not be dispositive of
the establishment of culpable conduct in the malpractice action.
Bailey, supra, 621 A.2d at 114–115 (footnotes omitted).
In the present case, the trial court found Horton failed to establish the
third prong of the Bailey test. The court opined:
[T]he record fails to support the finding that [Horton] “did not
commit any unlawful acts with which he was charged as well as
any lesser offenses included therein.” [Bailey, supra, 621
A.2d] at 115 n.12. We find no facts from which this court could
conclude that [Horton] was innocent of all the criminal charges
filed against him. Nor has [Horton] pleaded and proved that
[Bruno’s] culpably negligent representation was the cause of the
dismissal of his second PCRA petition in the sense that “but for”
[Bruno’s] misconduct, [Horton] would have obtained an acquittal
or complete dismissal of the criminal charges. [Horton’s] failure
to timely raise or establish a valid after-discovered facts time bar
exception to his second PCRA petition was not because of
[Bruno’s] negligence, but due to [Horton’s] failure to raise the
medical conditions defense in his first PCRA petition. See
Horton, 48 A.3d 479 (“Since appellant’s petition was untimely
and no valid exception to the time bar of the PCRA exists, the
PCRA court was without jurisdiction to review the petition …
[T]here was nothing counsel could have done or avoided doing
that would have changed the outcome.”). Absent fulfillment of
the third prong for legal malpractice of criminal defense
attorneys, [Horton] cannot establish criminal malpractice against
[Bruno].
Trial Court Opinion, 9/16/2016, at 11-12.
Again, we find no error or abuse of discretion on the part of the trial
court. Horton insists the third prong of the Bailey test “must be modified to
‘but for’ the attorney’s conduct, the plaintiff would have obtained an
‘evidentiary hearing’ or ‘new trial.’” Horton’s Brief at 22. He further claims
the trial court should have considered “what may have happened had
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[Bruno] not been negligent.” Id. at 23. We disagree. The language of
Bailey is clear: in order to obtain relief, Horton must establish Bruno’s
“culpable conduct was the proximate cause” of his injury, that is, “‘but for’
[Bruno’s] conduct, [Horton] would have obtained an acquittal or a complete
dismissal of the charges.” Bailey, supra, 621 A.2d at 115. This, Horton
failed to do.
Nevertheless, we find that even if we considered Horton’s claims under
the relaxed standard he proposes - that is, whether Bruno’s negligence was
the proximate cause of Horton’s failure to obtain an evidentiary hearing – we
would still conclude Horton is entitled to no relief. Horton attempted to
overcome the PCRA’s time bar by demonstrating the applicability of the
newly discovered facts exception codified at Section 9545(b)(1)(ii). 7 This
claim was based upon recently received medical records that, he asserts,
demonstrates he suffered from an injury shortly before the crime that would
have rendered him “unable to participate in the crime.” Horton, supra, 48
A.3d 479 (unpublished memorandum at 9). In his legal malpractice
complaint, Horton maintained the PCRA appellate court denied relief due, in
part, to Horton’s failure to substantiate that claim with actual evidence.
Horton attributes the omission to Bruno’s failure to obtain and attach to the
____________________________________________
7
See 42 Pa.C.S. § 9545(b)(1)(ii) (“[T]he facts upon which the claim is
predicated were unknown to the petitioner and could not have been
ascertained by the exercise of due diligence”).
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amended petition the previously misplaced medical records, and affidavits
from Horton’s treating physicians. See Complaint, 2/26/2013, at ¶ 68(j)-
(k). However, even if Bruno had secured the relevant documents, Horton
would not have been able to establish a time-bar exception.
The newly discovered facts time-bar exception requires a defendant to
plead and prove: “1) the facts upon which the claim was predicated were
unknown and 2) could not have been ascertained by the exercise of due
diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)
(internal punctuation and citation omitted; emphasis in original). The
Supreme Court has made clear that “[t]he focus of the exception is on [the]
newly discovered facts, not on a newly discovered or newly willing source for
previously known facts.” Commonwealth v. Marshall, 947 A.2d 714, 720
(Pa. 2008) (quotation omitted).
Here, the fact upon which Horton’s PCRA claim was predicated was his
knee injury, which he claims would have rendered him unable to commit the
crime. However, Horton knew he had injured his knee at the time of trial.
The medical records and doctor affidavits, which he contends would have
corroborated his injury, constitute a “newly discovered or newly willing
source for previously known facts.” Id. See also Commonwealth v.
Johnson, 945 A.2d 185, 190 (Pa. Super. 2008) (newly discovered witnesses
willing to testify the victim owed defendant’s co-conspirator money did not
satisfy the newly discovered facts exception because defendant admitted
that prior to trial, he knew victim owed money to his co-conspirator; thus,
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fact was not newly discovered), appeal denied, 956 A.2d 433 (Pa. 2008).
Therefore, because Horton could not have overcome the PCRA’s time-bar
even if Bruno had obtained the absent documents, Bruno’s ineffectiveness
was not the proximate cause of Horton’s injury. Accordingly, the trial court
properly granted Bruno’s motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2017
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