Zhong, J. v. Tsiwen Law

Superior Court of Pennsylvania

Zhong, J. v. Tsiwen Law

Superior Court of Pennsylvania·Decided May 27, 2016·No. 2504 EDA 2015·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JIN FU ZHONG AND TONG SHING IN THE SUPERIOR COURT OF RESTAURANT, INC. PENNSYLVANIA

Appellants

v.

TSIWEN LAW, ESQUIRE, SHARON ROSE LOPEZ, ESQUIRE, TRIQUETRA LAW, JEAN C. WANG, ESQUIRE AND WANG LAW OFFICE, PLLC

Appellees No. 2504 EDA 2015

Appeal from the Order Entered June 3, 2015 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 00346 March Term, 2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J. MEMORANDUM BY JENKINS, J.: FILED MAY 27, 2016 Jin Fu Zhong and Tong Shing Restaurant, Inc. (collectively “Appellants”) filed a legal malpractice action against several attorneys and law firms (collectively “Appellees”) alleging that they negligently represented Appellants in a federal civil RICO1 action against inspectors for the Pennsylvania Department of Agriculture, Bureau of Food Safety. Through a series of pretrial orders, the trial court dismissed the malpractice action. Appellants filed a timely appeal to this Court. We affirm.

1 RICO is the well-known acronym for the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.

We begin by summarizing the underlying RICO action. On May 12, 2008, Zhong filed a civil action against the agricultural inspectors in the United States District Court for the Eastern District of Pennsylvania. Zhong alleged in his pleadings that he operated a Chinese restaurant in Nazareth, Pennsylvania, but the inspectors drove him out of business through numerous inspections and citations. The inspectors began harassing Zhong in 2003, when one inspector, Kathleen Sweeny, became angry upon receiving less than her usual discount on a food bill (twenty percent instead of fifty percent). In retaliation, Sweeny broke into the restaurant kitchen, dumped chicken in the trash, and wrote two pages of approximately twenty violations. Sweeny also showed up at the restaurant on two separate mornings with her flashlight and camera and closed the restaurant for three consecutive days over one weekend and for a few hours on several other occasions. Two other inspectors, Bill Chirdon and Dennis Wolff, issued twenty tickets and numerous citations against the restaurant between 2003 and 2006. On one occasion in January 2005, a police officer prohibited Zhong’s wife from selling a takeout order after the restaurant was closed, and a local newspaper publicized this incident the next day. This campaign of harassment forced Zhong to sell the business.

Based on these allegations, Zhong sued the inspectors (1) under the RICO statute, (2) under 42 U.S.C. § 1983 for violations of his civil rights, and (3) under Pennsylvania common law and several Pennsylvania statutes.

On September 30, 2009, the federal court granted in part and denied in part the officials’ motion to dismiss. Among other things, the court dismissed two individuals and the Department of Agriculture as defendants.

On September 28, 2011, the federal court entered a memorandum and order dismissing the remainder of Zhong’s action. The court dismissed two counts based on Zhong’s concession that he failed to state a cause of action. The court further held that Zhong’s section 1983 action was time- barred under the two-year statute of limitations. Finally, the court held that Zhong lacked standing to bring a RICO action. The owner of the Chinese restaurant, the court stated, was a corporation, Tong Shing Restaurant, Inc. (“Tong Shing”), not Zhong himself. Thus, only Tong Shing had standing to sue under the RICO statute.

On March 4, 2014, Appellants filed a writ of summons in the Court of Common Pleas of Philadelphia County against Appellees, who are the following attorneys and law firms: (1) Tsiwen Law, Esquire and Law & Associates, LLC (“the Law defendants”); (2) Jean Wang, Esquire and Wang Law Office, PLLC (“the Wang defendants”); and (3) Sharon Lopez, Esquire and Triquetra Law (“the Lopez defendants”). All Appellees represented Zhong at various points during the underlying federal action. Appellants subsequently filed a complaint alleging legal malpractice, and they amended the complaint twice.

In their second amended complaint, Appellants alleged that Tong Shing would have had a valid RICO action in the federal action had it been

named as a plaintiff, but Appellees negligently named Zhong as the plaintiff instead of Tong Shing. Appellants did not allege that Tong Shing (or Zhong) could have prevailed in the underlying federal case on any claim other than RICO.2 All Appellees filed preliminary objections to the second amended complaint. The Law defendants argued that Appellants failed to state a valid malpractice claim because neither Zhong nor Tong Shing could have asserted a valid RICO action in the underlying federal case. In support of this argument, the Law defendants attached Zhong’s original and amended federal complaints to their preliminary objections. On October 23, 2014, the Honorable Frederica Massiah-Jackson issued a memorandum and orders (1) sustaining the Law defendants’ preliminary objections and dismissing Appellants’ claims against them with prejudice; (2) sustaining the Lopez defendants’ preliminary objections in part and dismissing two negligence counts against them; and (3) overruling the Wang defendants’ preliminary objections.

Following completion of the pleadings, the Wang and Lopez defendants moved for judgment on the pleadings. Among other arguments, the Wang

and Lopez defendants contended that Appellants could not have asserted a

2 Indeed, in response to the Law defendants’ preliminary objections, Appellants conceded that they could not have mounted a successful section 1983 action in the underlying federal case.

valid RICO claim in the underlying federal case. On March 6, 2015, the Honorable Dennis Cohen granted judgment on the pleadings to the Wang defendants. On May 29, 2015, the Honorable Ellen Ceisler granted judgment on the pleadings to the Lopez defendants. Judge Ceisler’s order constituted a final order for purposes of appeal, because it disposed of all remaining claims and parties. See Pa.R.A.P. 341(b)(1) (defining final order as order which “disposes of all claims and all parties”).

On June 3, 2015, the prothonotary provided Pa.R.Civ.P. 236 notice of the order dismissing the Lopez defendants. On July 2, 2015, Appellants filed a timely notice of appeal.

In their opening brief on appeal, Appellants raised four issues:

1. Appellants’ claims against Appellees Sharon Lopez and Triquetra Law are not barred by the Statute of Limitations.

2. Appellants’ claims against Appellees Sharon Lopez and Triquetra Law are not barred because there was no contract between the parties.

3. Jin Fu Zhong and Tong Shing Restaurant, Inc. have evidence of actual losses as a result of [Appellees’] actions that preclude the entry of Judgment on the Pleadings.

4. The Trial Court Erred In Granting The Appellees’ Preliminary Objection on Statute of Limitations Grounds.

Brief For Appellants, at 14, 18, 20, 22.3 Appellees counter that these issues lack merit and also request that we affirm on procedural grounds (e.g., Appellants’ waiver of all arguments by failing to serve Judges Ceisler’s and Cohen’s chambers with their Pa.R.A.P. 1925(b) statements).

It is well settled that we may affirm the decision of the trial court on any valid basis appearing of record. See Louis Dreyfus Commodities Suisse SA v. Fin. Software Sys., Inc., 99 A.3d 79, 82 (Pa.Super.2014). In view of this principle, we need not delve into the arguments raised by Appellants or the procedural arguments raised by Appellees (such as Appellants’ alleged waiver for failing to make proper service of their Rule 1925(b) statements). Instead, we affirm for another simple reason: Appellants failed to state a valid cause of action in the underlying federal action and therefore have no valid malpractice action in the present case.

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