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

Appellant

v.

BENJAMIN COOPER, ESQ. ALLAN J. SAGOT, ESQ. ALLAN J. SAGOT ASSOCIATES : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2200 EDA 2021

Appeal from the Order Entered September 29, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 190100419 BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J. MEMORANDUM BY SULLIVAN, J.: FI LED JANUARY 18, 2023 John J. Lynch (“Lynch”) appeals pro se from the order dismissing his amended complaint naming Benjamin Cooper, Esq . (“Attorney Cooper”) , Allan J. Sagot, Esq. ( “ Attorney Sagot ” ) , and Allan J. Sago t Associates (“ Sagot
Associates ”) (collectively, “Appellees”) as defendants. We quash the appeal

. We summarize the procedural history of this appeal f rom the record. In January 2019, Lynch fil ed a pro se complain t alleging breach of contract and legal malpractice against Appellees

. 1 Lynch served Attorney Cooper with the complaint , but was unable to serve Attorney Sagot or Sagot Associates. With the trial court’s permission , Lynch reinstate d his action and filed an amended complaint in May 2019

. Therein, Lynch asserted that Attorney Cooper was an associate with Sagot Associates and had been appointed to represent him in

_________________ __________ ______ ____ _______
1 Lynch filed his complaint while incarcerated at SCI

- Dallas.J

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criminal matters in May 2017

. See Amended Complaint, 5/15 /19, at ¶¶ 1

- 2. Lynch claimed that Attorney Cooper ineffectively represented him in his
criminal matters which result ed in a deprivation of his liberty interests

. See id . at ¶¶ 5, 8. Additionally, Lynch alleged that he and Attorney Cooper entered
into an oral agreemen t for Attorney Cooper or another member of Sagot Associates to file motions and briefs in two civil matters . Lynch averred that he paid Attorney Cooper , 2 Appellees failed to file motions and briefs in the civil
matters , and their inactions resulted in th e dismissal of a civil appeal as well

as the entry of a $60,000 judgment against him. See id . at ¶ ¶ 2

- 4, 7.
C ounsel for Attorney Cooper 3 entered an appearance , and on January 2, 2020, filed a notice of i ntent to enter a judgment of non pros due to Lynch’s
failure to file a certificate of merit

. 4 See Pa.R.Civ.P. 1042.3 (a) (requiring the

_________________ __________ ______ ____ _______ 2 Lynch attached to his amended complaint copies of checks from the Philadelphia prison system paid to the order of Attorney Cooper, as well as a spreadsheet indicating deductions from Lynch’s p rison account. See Attachments to Amended Complaint, 5/15/19.

3 C ounsel represented Attorney Cooper individually and did appear on behalf of Attorney Sagot or Sagot Associates

.
4 A certificate of merit consists of a form , signed by the plaintiff or his attorney, indicating a licensed professional has supplied a written statement that : (1) there is a basis to conclude that the care, skill, or knowledge exercised or exhibited by a defendant in the practice or work that is the subject of the complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm ; (2) a defendant deviated from an acceptable professional standard based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard ; or (3) expert testimon y is unnecessary for the prosecution of the claim against a defendant. See Pa.R.C iv .P. 1042.10

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filing of a certificate of merit within sixty days of filing a complaint in any action alleging a licensed professional deviated from an acceptable professional st andard), see also Pa.R.Civ.P. 1042.6 (a) (governing notices of intent to enter judgment of non pros for failure to file a certificate of merit)

. Four days later, Lynch informed the trial court that h is mailing address had changed from SCI

- Dallas to SCI

- Phoenix. On February 5, 2020, Attorney Cooper filed a praecipe for the entry of a judgment of non pros as to Lynch’s claims against him

. Lynch then filed a
certificate of merit asserting that expert testimony of an appropriate licensed prof essional was unnecessary as to “ the se proceedings and claims against Sagot Associates

. ” See Lynch’s Certificate of Merit, 2/28/20. 5 In May 202 0 , Lynch filed a petition to open the judgment of non pros
. Upon consideration of the briefs filed by Lynch and Attorney Cooper, t he trial court denied Lynch’s petition to open on July 31, 2020

. 6 Attorney Sagot and Sagot Associates were n ot served with original
process , nor had they taken any actions with respect to Lynch’s original or

_________________ __________ ______ ____ _______
5 Lynch asserts that he mailed his certificate of merit on February 4, 2020; however, absent adequate evidence of the date he deposited this filing with priso n officials, we refer to the February 28, 2020 date of docketing as the date of this filing. See Thomas v. Elash , 781 A.2d 170, 176 (Pa. Super. 2001) ( discussing the prisoner mailbox rule and applying the rule to a civil matter). We do the same for all o f Lynch’s filing s where the record does not contain verifiable evidence of the date of mailing.

6 The Honorable Ann Butchart decided Lynch’s petition to open the judgment of non pros as to Attorney Cooper.J

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amended complaint. 7 Nevertheless, t he docket next indicates that i n December 2020, the trial court listed the matter for a settlement conference

. Additionally, Lynch filed a motion to extend the deadlines based upon a COVID

- 19 lockdown in the prison, which the trial court denied. 8
I n August 2021 , the trial court attempted to hold a pretrial conference , but no parties appeared. The trial court issued a rule to show cause scheduling a hearing for September 29, 2021, to determine why the case should not be
dismissed and whether the defense should be sanctioned for failing to appear at the pretrial conference

. Only Attorney Cooper responded to the rule to
show cause , and he indicat ed that t he court had entered a judgment of non
pros as to the claims against him, and he was no longer involved in the case. On September 29, 2021, the trial court dismis s ed Lynch’s entire action

. 9 Lynch timely appealed from the September 29, 2021 order dismiss ing the

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7 Lynch’s attempts to serve Attorney Sagot or Sagot Associates with his original and amended complaint had been unsuccessful. See Affidavit/Return of Service, 5/17/19 (indicating that the suite listed for Attorney Sagot and Sagot Associates did not exist) ; Affidavit/Return of Service, 4/8/ 19 (indicating that Attorney Sagot and Sagot Associates were “not found because EXPIRED”).

8 Judge Linda Carpenter presided over the matte r beginning in 2021.

9 I t is unclear which of the trial court’s 2021 orders Ly nch received , as the record contains several documents indicat ing that the court received returned mail. See Return Mail Received, Document No s . 34 , 36, 42.J

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entire case

. 10 The court did not order a Pa.R.A.P. 1925(b) statement , but the presiding judges filed separate opinion s explaining their decisions to dismiss Lynch’s claims and action due to his failure to file certificates of merit

. 11 See Judge Carpenter’s Opinion, 6/30/22, at 4

- 5 (unnumbered); Judge Butchart’s Opinion, 12/2/21, at 4 (unnumbered). 12 Lynch raises the following issues for review:
1. Did

. . . [ Attorney Cooper ]

. . . with [h] old factual information from the [trial court] in [his] subsequent return of service affidavit that [his] first mailing had failed to give notice and 30 days opportunity to correct the legal defect as required by [Pa.R.Civ.P.] 1042.6? 2. Did the failure of the [January 2, 2020] mailing b y [ Attorney Cooper a ffect ] the response period under [Pa.R.Civ.P.] 1042.6? 3. Can

. . . [Lynch] be refused relief of vacating /striking/and/or opening the [j]udg[]ment of dismissal . . . simply because the legal mail from the court that was mailed to the correc t address S.C.I. Phoenix was returned as undeliverable where [Lynch] has been and continues to be housed . . . Lynch’s Brief at 10.

_________________ __________ ______ ____ _______ 10 On September 13, 2021, Lynch had filed a separate notice of appeal from the July 31, 2020 order den ying his petition to open the judgment of non pros as to Attorney Cooper , which was docketed in this Court at 2417 EDA 2021. This Court dismissed th at appeal as duplicative of the present appeal. See Order , 2417 EDA 2021, 3/1/22.

11 On December 27, 2021, while this appeal was pending, Lynch filed in the trial court a petition to open, strike, or vacate the September 29, 2021 order.

12 Judge Butchart also concluded that Lynch failed to timely appeal the July 3 1, 2020 order denying his petition to open the judgment of non pros as to Attorney Cooper. See Judge But chart’s Opinion, 12/2/21, at 2

- 3. Judge Butchart noted that there were no indications in the record that Lynch had not received the July 31 , 2020 order

. See id . at 3.J

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I nitially , we must consider whether this Court has jurisdiction to consider this appeal. See Bloome v. Alan , 154 A.3d 1 271, 1273 (Pa. Super. 2017) (noting that the appealability of an order directly implicates this Court’s jurisdiction); see also Affordable Outdoor, LLC v. Tri - Outdoor, Inc. , 210 A.3d 270, 274 (Pa. Super. 2019) (stating that the timeliness of an appeal is j urisdictional). Our standard of review of question s concerning this Court’s jurisdiction is de novo , and our scope of review is plenary. See In re Estate of Krasinski , 218 A.3d 1246, 1251 (Pa. 2019). To perfect an appeal, an appellant must timely file a notice of appeal from an appealable order. See Pa.R.A.P. 902

- 903 (requiring that appeals permitted by law be taken within thirty days); see also Pa.R.A.P. 902 Note (stating that a timely notice of appeal is “self

- perfecting”). A n appeal may be taken from: (1) an interlocutory order as of right, see Pa.R.A.P. 311; (2) an interlocutory order by permission, see Pa.R.A.P. 312, 1311; (3 ) a collateral order, see Pa.R.A.P. 313 ; or (4) a final order or an order certified as a final order, see Pa.R.A.P. 341

. See Bloome , 154 A.3d at 1273.
An interlocutory order refusing to strike off or open a judgment is immediately appealable as of right , s ee Pa.R.A.P. 311(a)(1) , but a n appellant taking an interlocutory appeal as of right must file a notice of appeal within thirty days of the entry of the order. See Pa.R.A.P. 902

- 903. The failure to take an immediate appeal of an interlocutory order denying a petition to open a judgment of non pros , however, does not waive the appellant’s right to challenge the interlocutory order upon a timely appeal from a final order. SeeJ

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Pa.R.A.P. 311(g) (providing that the failure to appeal an interlocutory order pursuant to Rule 311(a)(1) does not waive any objections to the interlocutory order); see also Stephens v. Messick , 799 A.2d 793, 798 (Pa. Super. 2002) (noting that “[a]s a general rule, interlocutory orders that are not subject to immediate appeal as of right may be reviewed on a subsequent timely appeal of the final appealable order or judgment in the case ” ) (internal citation and quotations omitted)

. A final order is one that disposes of all claims and parties. See Pa.R.A.P. 341(b)(1). This Court’s decision in Bl oome is instructive in this case

. In Bloome , the plaintiff failed to serve two of the defendants named in her amended complaint. See Bloome , 154 A.3d at 127 2

- 7 4 . Th re e other defendants filed preliminary objections. See id . at 1273. The trial court

sus tained the moving defendant’s preliminary objections, but dismissed the plaintiff’s amended complaint in its entirety. See id

. On appeal, this Court
held that the order dismissing the amended complaint was not a final order under Rule 341(b)(1) because : the plaintiff did not serve two defendants named in her amended complaint; the unserved defendants did not file preliminary objections; and the plaintiff’s act ion against the unserved defendant had not been dismissed or discontinued. See id

. at 1274 . Further, finding no other basis on which to exercise our appellate jurisdiction, the
Bloome Court quash ed the plaintiff’s appeal. See id . at 1274 & n.7. In the appeal sub judice , Lynch named Attorney Cooper , Attorney Sagot, and Sagot Associates as defendants in his action. Lynch served AttorneyJ

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Cooper with original process , and as noted above, the trial court denied Lynch’s petition to open the judgment of non pros as to Attorney Cooper on July 31, 2020. Th e order as to Attorney Cooper was interlocutory, as it did not dispose of all parties, but was immediately appealable pursuant to
Pa.R. A .P. 311(a)(1)

. Whi le Lynch did not timely appeal the July 31 , 2020 order within thirty days, his failure to do so is not fatal to this Court’s jurisdiction so long as Lynch timely appealed from a final order disposing of
all claims and parties. See Pa.R.A.P. 311(g) ; see al so Stephens , 799 A.2d
at 798. We note that Lynch timely appealed from the trial court ’s September 29, 2021 order , and that order purported to dismiss all claims and all parties

. However, o ur review of the record reveals that like the plaintiff in Bloome , Lynch had failed to serve Attorney Sagot or Sagot Associates and neither Attorney Sagot n or Sagot Associates participated in any of the litigation. Furthermore, no actions were taken to dismiss or discontinue Lynch’s claims against them. Therefore, the September 29 , 2021 order was not a final order

. See Bloome , 154 A.3d at 12 7 4 . B ecause Lynch has provided no other basis for this Court to exercise our appellate jurisdiction, Lynch ’s timely appeal from the September 29 , 2021 order does not trigger this Court’s jurisdiction. See id

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Thus, because Lynch has not perfected an appeal from the trial court’s July 31, 2020 order , or the September 29, 2021 order , we must quash this appeal

. 13 Appeal quashed. Judge McCaffery joins this memorandum. Judge Bowes files a dissenting memorandum. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/18/2023

_________________ __________ ______ ____ _______ 13 Because we lack jurisdiction, we express no opinion on Lynch’s assertions that court breakdowns or extraordinary circumstances prevented him from timely filing a petition to open a judgment entered on September 29, 2021 , or timel y appealing the July 31, 202 0 order . Additionally, we do not consider the merits of the trial court’s denial of Lynch’s petition to open the judgment of non pros as to Attorney Cooper or any other aspects of Lynch’s claims against Appellees.