Jones v. Rudenstein

585 A.2d 520, 401 Pa. Super. 400, 1991 Pa. Super. LEXIS 189
CourtSuperior Court of Pennsylvania
DecidedJanuary 24, 1991
Docket248
StatusPublished
Cited by66 cases

This text of 585 A.2d 520 (Jones v. Rudenstein) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Rudenstein, 585 A.2d 520, 401 Pa. Super. 400, 1991 Pa. Super. LEXIS 189 (Pa. Ct. App. 1991).

Opinions

KELLY, Judge:

The instant case involves a pro se appeal from a judgment of non pros entered against a pro se litigant upon an attorney malpractice claim arising from appellant’s unsuccessful post-verdict challenge to prior counsel’s effectiveness in the trial which resulted in his conviction of first degree murder. We affirm.

As with many cases involving pro se litigants, the procedural history is obscure and confused, and the record contains gaping omissions. Nonetheless, we glean the following from the record here on appeal.

On October 15, 1987, appellant filed a complaint asserting claims for attorney malpractice against appellee seeking compensatory and punitive damages. The underlying basis for the claim was explained in the complaint as follows.

[402]*402In May 1983, appellant was convicted of first degree murder. After trial appellant filed a pro se motion for withdrawal of trial counsel and appointment of new counsel alleging eleven instances of ineffective assistance of counsel. Prior counsel was permitted to withdraw and present appellee was appointed as counsel.

Following appointment of appellee, appellant filed a pro se brief in support of the eleven claims of ineffectiveness previously asserted in the pro se motion. Appellee subsequently filed counselled supplemental post-verdict motions and a brief in support thereof. Appellant subsequently filed another pro se motion and memorandum of law in support of five additional grounds for post-verdict relief. Later, appellant filed two more pro se contentions.

An evidentiary hearing was conducted, at which appellee questioned prior counsel regarding various ineffectiveness claims. Appellant’s complaint against appellee is that appellee failed to ask prior counsel a list of questions (not in the record) which appellant prepared relating to the grounds asserted by appellant pro se, and in failing to otherwise question appellant regarding those grounds.

The complaint fails to indicate the disposition of the post-verdict motions, or whether any appeal or post-conviction relief proceedings followed.1 The complaint nonetheless seeks compensatory and punitive damages in the amount of $20,000, and such other relief as the court should deem proper.

Judgment of non pros was entered on December 8, 1988. Appellant contends that he sent a petition to open on December 14,1988, but that it was returned unfiled because the judgment of non pros had not yet been docketed. On December 27, 1988, appellant filed notice of appeal. On January 2, 1989, appellant filed a praecipe for entry of an adverse order. On January 10, 1989, the Judgment of Non Pros was finally entered on the docket. Rather than resub[403]*403mitting his petition to open, appellant proceeded with the instant appeal.

On appeal appellant contends the trial court abused its discretion in entering the non pros. We cannot agree.

When reviewing the entry of a judgment of non pros, it is well settled law that the decision will not be reversed on appeal absent an abuse of discretion on the part of the trial court. Nivens v. Chestnut Hill Hospital, 373 Pa.Super. 377, 541 A.2d 365 (1988). This Court has recently determined that a party may file a direct appeal from the entry of a judgment of non pros without filing a petition to open the judgment prior to the filing of an appeal. Valley Peat & Humus v. Sunnyland Inc., 398 Pa.Super. 400, 581 A.2d 193; (Johnson, J., dissenting); Williams v. Gallagher, 396 Pa.Super. 584, 579 A.2d 403 (1990) (Johnson, J., dissenting). In order to establish grounds to open a judgment non pros, a petitioner must demonstrate:

1) the petition to open was timely filed;
2) the default can be reasonably explained; and,
3) facts in support of a proper cause of action are alleged.

See Walt Medical v. Electro Nucleonics, 400 Pa.Super. 274, 583 A.2d 492 (1990). Setting aside the first requirement as arguably problematic in this case, it is clear that appellant’s omitted petition fails to demonstrate either of the remaining requirements standing alone, or reading the petition in conjunction with the record as a whole.

Citing Salladino v. Brooks, 324 Pa.Super. 172, 471 A.2d 518 (1984), appellant asserts that his non-appearance was excused by the fact of his incarceration. Appellant however fails to note a material and dispositive distinction between his case and Salladino. In Salladino, counsel for the incarcerated plaintiff had taken all the steps available to secure the incarcerated plaintiff’s appearance; consequently, plaintiff’s non-appearance in Salladino was not plaintiff’s fault. 471 A.2d at 520-21 & n. 2. Here, appellant [404]*404failed to take any steps prior to entry of judgment non pros to ensure his availability for the proceedings.

Appellant apparently labors under the false assumption that by proceeding pro se he is absolved of all responsibility to comply with procedural rules, and that the appellee and/or the court had some affirmative duty to walk him through the procedural requirements, or to ignore the procedural requirements, in order to reach the merits of his claim. Such is not the case. The United States Supreme Court has explained:

The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.

Farretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2540 n. 46, 45 L.Ed.2d 562, 581 n. 46 (1975); see also Wiegand v. Wiegand, supra, 525 A.2d at 774. Thus, appellant’s default is not reasonably explained in his petition to open.

Moreover, and perhaps even more importantly, appellant’s underlying complaint fails entirely to establish a legitimate cause of action. Appellant has failed to aver facts sufficient to establish proximate cause or causation in fact with regard to his underlying attorney malpractice claim.

In Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112 (1988), this Court explained that four things must be established to prove a claim of attorney malpractice:

1) the employment of the attorney or other basis for a duty to act on the part of the attorney;
2) the failure of the attorney to exercise ordinary skill and knowledge;
3) that such negligence was the proximate cause of damage to the plaintiff; and,

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Cite This Page — Counsel Stack

Bluebook (online)
585 A.2d 520, 401 Pa. Super. 400, 1991 Pa. Super. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-rudenstein-pasuperct-1991.