Schade, K. v. Lauer, P.

CourtSuperior Court of Pennsylvania
DecidedSeptember 23, 2020
Docket649 EDA 2020
StatusUnpublished

This text of Schade, K. v. Lauer, P. (Schade, K. v. Lauer, P.) 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
Schade, K. v. Lauer, P., (Pa. Ct. App. 2020).

Opinion

J-S39032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DR. K. BERNARD SCHADE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : PHILIP LAUER : No. 649 EDA 2020

Appeal from the Order Entered January 14, 2020 In the Court of Common Pleas of Monroe County Civil Division at No(s): No. 2019-05028

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 23, 2020

Dr. K. Bernard Schade (Schade) appeals pro se from the order filed in

the Court of Common Pleas of Monroe County (trial court) granting the Motion

for Judgment on the Pleadings in his criminal malpractice action against his

previous attorney, Philip Lauer (Lauer), because it was not filed within the

applicable statute of limitations. We affirm.

I.

We take the following background facts and procedural history from the

trial court’s October 18, 2019 and January 14, 2020 opinions, this Court’s

November 3, 2016 memorandum in Schade’s criminal appeal and our

independent review of the certified record. Because the allegations in this

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S39032-20

matter involve Lauer’s legal representation of Schade in his prior consolidated

criminal cases, 681-2014 and 917-2014, we briefly describe the pertinent

history of that litigation.

A.

Lauer entered his appearance in Schade’s criminal cases on April 2 and

24, 2014. On July 15, 2014, with Lauer’s assistance, Schade entered a

negotiated guilty plea to one count of Statutory Sexual Assault and two counts

of Possession of Child Pornography.1 The plea related to Schade having sexual

relations with a person less than sixteen years of age between 1995 and 1997

and his possession of 1,101 images of child pornography. In exchange, the

Commonwealth nolle prossed the charges of Rape-Forcible Compulsion,

Involuntary Deviate Sexual Intercourse with Person Less than Sixteen Years

of Age, Aggravated Indecent Assault with Person Less than Sixteen Years of

Age, Corruption of Minors and 1,099 additional counts of possessing child

pornography. (See Commonwealth v. Schade, 2016 WL 6519102,

unpublished memorandum, at *1 (Pa. Super. filed Nov. 3, 2016)). At a

January 7, 2015 hearing, the court found Schade to be a Sexually Violent

Predator and sentenced him to an aggregate term of not less than fifty-four

nor more than 120 months’ incarceration.

1 18 Pa.C.S. §§ 3122.1(a) and 6312(d), respectively.

-2- J-S39032-20

On April 29, 2015, Schade filed a pro se petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9542-9546, which the court

dismissed as prematurely filed on May 11, 2015. On May 21, 2015, Lauer

filed a Petition to Withdraw as Counsel. On June 24, 2015, before the court

ruled on the Motion to Withdraw, Wieslaw T. Niemoczynski, Esquire (new

counsel) entered his appearance on behalf of Schade. On July 7, 2015, new

counsel filed a counseled PCRA petition alleging the ineffective assistance of

Lauer in unlawfully inducing his guilty plea. After a hearing, the PCRA court

denied the petition. On November 3, 2016, this Court affirmed the PCRA

court, finding after our own independent review, that:

Although Appellant alleges that ineffective assistance of counsel induced him to plead guilty, the record belies that statement. … Based upon our review of record and the totality of the circumstances, we conclude that Appellant knowingly and voluntarily entered the guilty plea. … [W]e conclude that Mr. Lauer acted reasonably in advising Appellant to accept the guilty plea and that Appellant knowingly, voluntarily, and intelligently participated in the colloquy. Thus, no manifest injustice occurred.

(Id. at *4). The Pennsylvania Supreme Court denied further review on August

2, 2017. (See id., appeal denied, 169 A.3d 1082 (Pa. 2017)).

-3- J-S39032-20

B.

On July 1, 2019 Schade filed a criminal malpractice Complaint against

Lauer, alleging that Lauer breached his implicit contract2 when he “failed to

2 Criminal malpractice actions can sound in trespass or assumpsit. An action in trespass is similar to a civil professional malpractice claim and requires 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; 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.

[An action in assumpsit] is a contract claim and the attorney’s liability in this regard will be based on terms of that contract. Thus, if an attorney agrees to provide his or her best efforts and fails to do so an action will accrue. Of course, 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. … It does not require a determination by an appellate court of ineffective assistance of counsel, nor does the client need to prove innocence.

Tucker, infra at 115.

-4- J-S39032-20

exercise the ordinary skill and knowledge possessed by attorneys in the

community, relating to [the] time-barred [sexual assault] claims … and the

pornography allegations” and “did not understand nor grasp the relevant law,

facts and evidence but … negligently, carelessly and unskillfully” advised him

to plead guilty instead of going to trial. (Complaint, 7/01/19, at 5, Paragraph

12, at 9, Paragraph 22, at 11, Paragraphs 29-30; see id. at 12, Paragraph

33).

Lauer filed an Answer and New Matter, alleging, among other affirmative

defenses, that Schade’s claims were barred by the applicable statute of

limitations. (See Answer and New Matter, 8/01/19, at 7, Paragraph 4).

Schade filed Preliminary Objections to Lauer’s Answer and New Matter,

claiming, in pertinent part, that Paragraphs six through thirty-nine of Lauer’s

New Matter should be stricken for lack of specificity. The trial court overruled

the Preliminary Objections on October 18, 2019.

On November 18, 2019, Schade filed a Motion for Reasonable

Accommodation in which he requested that Lauer serve him with all pleadings

and motions at Smart Communications/PA DOC, SCI Coal Township,

K. Bernard Schade, MA 1290, P.O. Box 33028, St. Petersburg, Florida, 33733,

due to his incarceration. The court granted the Motion on November 19, 2019.

On November 27, 2019, Lauer filed a Motion for Judgment on the

Pleadings on the ground that Schade’s lawsuit was barred by the statute of

limitations. Lauer served Schade at the address identified in the Motion for

-5- J-S39032-20

Reasonable Accommodation. Schade failed to respond. On January 14, 2020,

the court granted the Motion for Judgment on the Pleadings based on its

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