Opinion
J-S65022-16 No. 156 WDA 2016
11-22-2016
TEREL D. DIXON, Appellant v. STEVEN VALSAMIDIS, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 17, 2015
In the Court of Common Pleas of Beaver County
Civil Division at No(s): 10449-2014 BEFORE: LAZARUS, OLSON AND PLATT, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Terel D. Dixon, appeals pro se from the order entered on December 17, 2015, granting a petition for judgment on the pleadings filed by Steven Valsamidis (Valsamidis) and dismissing Appellant's pro se claims for breach of contract and fiduciary duty. Appellant also challenges the trial court's grant of Valsamidis' motion to dismiss pursuant to Pa.R.C.P. 233.1, thereby barring Appellant from pursuing additional, frivolous pro se litigation raising the same or related claims. We affirm.
We briefly summarize the facts and procedural history of this case as follows. In 2011, Valsamidis, an attorney, represented Appellant on murder charges in Beaver County, Pennsylvania. On August 5, 2011, Appellant pled guilty to third-degree murder and the trial court sentenced him to 12 to 30 years of incarceration. Appellant did not appeal. On January 6, 2012, the trial court granted Valsamidis' request to withdraw as counsel. On June 27, 2012, Appellant filed a timely pro se petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court appointed counsel, who filed an amended PCRA petition. On November 16, 2012, following an evidentiary hearing, the PCRA court denied relief. Appellant appealed the PCRA court's determination and we affirmed. See Commonwealth v. Dixon , 83 A.3d 1069 (Pa. Super. 2013) (unpublished memorandum). Appellant filed a petition for allowance of appeal on November 21, 2013, which our Supreme Court denied on May 6, 2014. See Commonwealth v. Dixon , 91 A.3d 161 (Pa. 2014). Appellant filed a second pro se PCRA petition that the trial court denied as untimely on September 16, 2014. We affirmed. See Commonwealth v. Dixon , 2015 WL 7194807 (Pa. Super. 2015) (unpublished memorandum).
Currently on appeal is Appellant's pro se professional liability complaint against Valsamidis filed on March 24, 2014. Appellant subsequently amended the complaint three times thereafter, filing his fourth complaint, on March 20, 2015, alleging breach of contract and breach of fiduciary duty. Valsamidis filed a motion for judgment on the pleadings and a motion to dismiss. Appellant filed preliminary objections to both motions. The trial court scheduled a hearing. Appellant failed to make a written request to participate via video conference from prison despite the trial court's advance notice to do so. Accordingly, Appellant was not present when the trial court held argument on December 8, 2015. By order and accompanying opinion entered on December 17, 2015, the trial court granted both motions filed by Valsamidis. This timely appeal resulted.
It appears that Appellant may have filed a motion for reconsideration; however, the docket does not reflect that Appellant filed one. The docket does show that Valsamidis filed a response to Appellant's motion for reconsideration on January 21, 2016. The trial court did not rule on the motion for reconsideration. On January 15, 2016, Appellant filed a notice of appeal simultaneously with a motion to inspect the record and a request for transcripts. On January 27, 2016, the trial court entered an order denying relief on Appellant's request to inspect the record, citing its December 17, 2015 opinion that barred Appellant from pursuing additional claims against Valsamidis arising out of the same or related claims. In two additional orders dated the same day, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and directed the court administrator to order transcription. After the trial court expressly granted an extension to file the Rule 1925(b) statement, Appellant complied on March 3, 2016. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 11, 2016, adopting the rationale from the opinion issued on December 17, 2015.
On appeal, Appellant presents the following issues for our review:
I. Whether the trial court erred in denying Appellant's motion to inspect the record?
II. Whether the lower court erred in failing to issue a judicial opinion and/or an order to Appellant's motion for reconsideration?
III. Whether the lower court erred in holding an ex parte hearing?
IV. Whether the trial court erred in dismissing the complaint pursuant to the collateral estoppel doctrine in that the defendant/Appellee failed to establish that the "full and fair opportunity to litigate the issue" prong of the collateral estoppel doctrine applied to [Appellant's] claims and whether the trial court erred in granting [] Appellees' motion for judgment on the
pleadings as [] Appellee's failure created sufficient doubt as to the applicability of the collateral estoppel doctrine as it pertains to [] Appellant's claims?
V. Whether the lower court failed to adjudicate [] Appellee's amended answer and new matter pleading and Appellant's pleadings filed in response thereto and whether the lower court's failure resulted in the relevant pleadings not being closed, making the adjudication of [] Appellee's motion for judgment on the pleadings premature?
VI. Whether the trial court erred in granting [] Appellee's motion for judgment on the pleadings in that the filing of the motion was an unreasonable delay of trial and whether the trial court erred in granting [] Appellee's motion to dismiss (pursuant to Pa.R.Civ.P. 233.1) well after the commencement of the action resulting in both motion[s] being filed in an untimely manner?
VII. Whether the trial court erred in granting [] Appellee's motion for judgment on the pleadings in that there were disputed issues of material fact, the court did not limit its review to the relevant pleadings and documents, [] Appellee's motion violated the requirements of Pa.R.Civ.P. 1019(i), the collateral estoppel doctrine cannot be raised in a motion for judgment on the pleadings and the issues contained in the complaint were not actually litigated and could not have been raised on collateral review as is required to support a collateral estoppel defense?
VIII. Whether the trial court erred in granting [] Appellee's motion to dismiss (pursuant to Pa.R.Civ.P. 233.1) in that the grounds for the motion were waived for failure to include said grounds in the amended answer and new matter pleading, the issues sought to be dismissed under the rule were not fully heard and resolved, the civil complaint proceeded as one matter as opposed to "serial complaints" and Appellant substantiated the factual basis of the claims contained in the complaint in prior court proceedings?
IX. Whether the trial court erred in failing to adjudicate Appellant's petition to transfer the venue pleading prior to adjudicating Appellee's motion for judgment on the pleadings/motion to dismiss resulting in Appellee's pleadings being premature or otherwise not heard by a fair and impartial tribunal?
X. Whether the trial court erred in ruling that the oral agreements entered between [] Appellant and [] Appellee were parol evidence rather than being independent from the written contract and whether the trial court erred in failing to consider parol evidence in support of the breach of contract claims?
XI. Whether the lower court erred in treating Appellant's breach of fiduciary duty claims as legal malpractice claims in that the burden of proof between the two causes of action are distinct and different, [] Appellee was no longer employed and there was no basis for Appellee's duty, the claims contained therein do not aver any failure to "exercise ordinary skill and knowledge" and the collateral estoppel doctrine cannot attach to a breach of fiduciary duty cause of action?
XII. Whether the trial court erred in not sustaining Appellant's preliminary objections filed to the defendant/Appellee's motion for judgment on the pleadings?
XIII. Whether the trial court's memorandum opinion and order dismissing the complaint was based on irrelevant and impertinent evidence offered by [] Appellee?
XIV. Whether the lower court erred in dismissing the complaint pursuant to the collateral estoppel doctrine in favor of Appellee's contentions rather than ruling that the collateral estoppel doctrine worked to [] Appellant's favor in that the PCRA court specifically found the similar contentions raised therein were raised in the complaint to be true?
XV. Whether Judge McBride should have recused himself from the lower court proceedings?Appellant's Brief at 6-7 (complete capitalization omitted).
XVI. Whether the lower court erred in not addressing the application for subpoena submitted by [] Appellant prior to holding the ex parte hearing?
We adhere to the following standards:
Judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1034, which provides that "after the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment on the pleadings." Pa.R.C.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.McLafferty v. Council for the Association of Owners of Condominium No. One , Inc., 2016 WL 4743511, at *3 (Pa. Super. September 12, 2016).
Appellate review of an order granting judgment on the pleadings is plenary and we apply the same standard employed by the trial court. Our review is confined to the pleadings and relevant documents. We 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 that were specifically admitted. Southwestern Energy Prod. Co. v. Forest Res., LLC , 83 A.3d 177, 185 (Pa. Super. 2013). 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.
We reviewed the certified record, the parties' briefs, the relevant law, and the trial court's opinion entered on December 17, 2015. We conclude that the opinion meticulously, thoroughly, and accurately disposes of all of Appellant's challenges on appeal. The trial court determined that Appellant's breach of contract claim, premised on Valsamidis' purported oral promise that Appellant would receive a specific sentence, failed because the fee agreement, the only written contract between the parties, provided: "Attorney offers no guarantee or promise to [Appellant] as to any outcome[.]" Trial Court Opinion, 12/17/2015, at 5 (unpaginated). Appellant also claimed Valsamidis breached the parties' contract by coercing Appellant into pleading guilty. The trial court determined that the contractual language Appellant relied upon, "Attorney will perform the tasks reasonable, necessary and ordinary to prepare [...] and will render Attorney's best professional skills in representing [Appellant's] interests" was "a recitation of the standard of care all attorneys owe their clients" and not a breach of a specific contract term as required in asserting a breach of contract claim sounding in legal malpractice. Finally, the trial court determined that the second count of Appellant's complaint, while averred as a breach of fiduciary claim, actually alleged legal malpractice. The trial court recognized that the PCRA court concluded Valsamidis was effective in his representation of Appellant and, thus, collateral estoppel barred Appellant from re-litigating the identical claims presented to the PCRA court in a subsequent legal malpractice action against Valsamidis. Id. at 6-8 (unpaginated). We agree. There are no disputed issues of fact and Valsamidis' right to prevail is clear and certain.
Moreover, our review of the order granting Valsamidis' motion to dismiss Appellant's breach of contract and fiduciary duty claims pursuant to Pa.R.C.P. 233.1 is subject to an abuse of discretion standard. Coulter v. Ramsden , 94 A.3d 1080, 1086 (Pa. Super. 2014). "[T]he court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason [or] if it does not follow legal procedure." Id. Pennsylvania Rule of Civil Procedure 233.1 governs a defendant's motion to dismiss frivolous claims brought by a pro se plaintiff and provides, in relevant part, as follows:
Rule 233.1. Frivolous Litigation. Pro Se Plaintiff. Motion to Dismiss
(a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that
(1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and
(2) these claims have already been resolved pursuant to a written settlement agreement or a court proceeding.
Pa.R.C.P. 233.1(a)&(c).
* * *
(c) Upon granting the motion and dismissing the action, the court may bar the pro se plaintiff from pursuing additional pro se litigation against the same or related defendants raising the same or related claims without leave of court.
Here, the trial court determined Appellant "filed four [amended] complaints against Valsamidis, all essentially alleging ineffective assistance of counsel [and Appellant's] claim has not changed from his first PCRA filing to []his [f]ourth [c]omplaint." Trial Court Opinion, 12/17/2015, at 8 (unpaginated). Accordingly, the trial court determined Appellant's "continued complaints amount to frivolous litigation." Id. at 9 (unpaginated). Upon review, we agree. Therefore, we affirm on the basis of the trial court's opinion and adopt it as our own. Because we have adopted the trial court's opinion, we direct the parties to include the trial court's opinion in all future filings relating to our examination of the merits of this appeal, as expressed herein. Moreover, we reject Appellant's argument that the trial court failed to address his motion for reconsideration, motion to inspect the record, and ex parte hearing claim, having already determined the trial court properly barred Appellant from pursuing additional pro se litigation against Valsamidis raising the same or related claims and because Appellant did not request leave of court. See Pa.R.C.P. 233.1.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/22/2016
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