J. A18016/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANN L. MARTIN AND JAMES L. MARTIN :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ADRIENNE L. BAILEY, DONALD A. 

BAILEY, SHERI D. COOVER, 

LAW OFFICES OF DONALD A. BAILEY, 

AND ESTATE OF LEAH L. PLACENIK

:

:

:

: No. 2049 MDA 2015

:

APPEAL OF: JAMES L. MARTIN :

Appeal from the Order Entered November 2, 2015,

in the Court of Common Pleas of Dauphin County

Civil Division at No. 2010-CV-04624-CV

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 13, 2016

Ann L. Martin and James L. Martin appeal1from the order entered 

November 2, 2015, dismissing their complaint with prejudice. We affirm.

The trial court has summarized the history of this matter as follows:

This action was commenced by the filing of a 

Complaint on April 19, 2010. The case sounded in 

legal malpractice and alleged that Defendants 

Donald Bailey and Sheri Coover were negligent in 

their representation of Plaintiffs arising out of a 

lawsuit against The Honorable Samuel Kline and 

court reporter Lisa Merkel for allegedly tampering 

with a transcript in the Orphan’s Court case of 

 

* Former Justice specially assigned to the Superior Court.

1

James L. Martin filed a notice of appeal on November 24, 2015. 

(Docket #73.) On December 2, 2015, Ann L. Martin joined the appeal. 

(Docket #74.)
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In Re: Estate of Josephine A. Martin (1997-588). 

Each of the Defendants filed Preliminary Objections 

to Plaintiffs’ Complaint on or about May 19, 2010, 

alleging, among other things, that Plaintiff[s’] action 

was barred by the applicable statute of limitations. 

Plaintiffs filed Preliminary Objections to each of 

Defendants’ Preliminary Objections on July 13, 2010, 

asserting that Defendants improperly raised the 

statute of limitations in their Preliminary Objections 

instead of in a New Matter.[Footnote 1]

[Footnote 1] None of the parties have 

ever filed a Certificate of Readiness 

certifying that Plaintiffs’ Preliminary 

Objections to Defendants’ Preliminary 

Objections or Defendants’ individual 

Preliminary Objections to Plaintiffs’ 

Complaint were ready to be decided by 

the Court, so these Preliminary 

Objections remain outstanding. As a 

result, none of the Defendants has filed 

an Answer to Plaintiffs’ Complaint, and 

the pleadings are not yet closed.

On September 17, 2012, as a result of two 

years of inactivity on the docket, this Court entered 

a purge Order requiring the filing of a statement of 

intention to proceed or the case would be dismissed. 

Plaintiffs filed a Statement of Intention to Proceed on 

October 26, 2012 and thereafter filed a joint status 

report on November 15, 2012. On December 19, 

2012, counsel for Plaintiffs, Derek W. Cummings, 

sought leave to withdraw. A hearing was held on 

February 21, 2013, after which this Court entered an 

Order on April 19, 2013, permitting 

Attorney Cummings to withdraw as counsel for 

Plaintiffs. This Order also provided that Plaintiffs 

shall retain new counsel within thirty days of the 

date of the Order, and Attorney Cummings shall 

provide the Certificates of Merit sought by opposing 

counsel upon request.

On May 21, 2013, James L. Martin entered his 

appearance pro se. That entry of appearance was 
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the last activity on the docket until May 29, 2015, at 

which time this Court entered another purge Order, 

requiring Plaintiffs to file a Statement of Intention to 

Proceed. Plaintiff James Martin filed his Statement of 

Intention to Proceed on July 21, 2015, and Plaintiff 

Ann Martin filed her Statement on July 24, 2015. 

Defendants Donald A. Bailey and Adrienne L. Bailey 

filed a Status Report on August 18, 2015, and 

Plaintiffs and Defendant Coover filed a Joint Status 

Report on August 20, 2015[.]

In response to the status reports, and in 

accordance with the bench orders issued at the 

February 21, 2013 Hearing, on August 20, 2015, this 

Court entered a Case Management Order wherein we 

entered a Rule to Show Cause why this case should 

not be dismissed for Plaintiffs’ failure to comply with 

Rules of Court in the following particulars: a) why 

Plaintiffs did not file an Amended Complaint; b) why 

Plaintiff James L. Martin filed a partial summary 

judgment, declared “moot” by Judge Clark, while he 

was represented by an attorney; c) why Adrienne L. 

Bailey, “Estate of Leah Placenick” and “Law Offices of 

Donald A. Bailey” should not be dismissed from this 

case; and d) why all claims of Ann L. Martin should 

not be dismissed from this case particularly 

explaining if she is represented by Attorney Chad J. 

Julius. The Rule was returnable by September 30, 

2015, and Defendants were given until October 15, 

2015 to respond if they so desired.

On September 30, 2015, Plaintiff James L. 

Martin filed an Answer to this Court’s August 20, 

2015 Rule to Show Cause.[Footnote 2] In response 

to why he did not file an Amended Complaint, 

Plaintiff asserted that the parties abandoned the 

re-pleading trigger, and the pleading deficiencies 

may be remedied with the filing of proofs, briefing as 

required, and moving to conform the pleadings to 

the proofs. Plaintiff also cited to other reasons as 

evident from the Motions for Summary Judgment. 

Plaintiff did not cite to any case law that supports his 

statement that pleading deficiencies may be 

remedied with the filing of proofs and moving to 
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conform the pleadings to the proofs. Plaintiff did not 

provide a sufficient legal or factual explanation as to 

why he did not file an Amended Complaint, as 

required by this Court’s August 20, 2015 Order, and 

his Complaint was dismissed with prejudice, by 

Order dated October 30, 2015.

[Footnote 2] Plaintiff Ann L. Martin failed 

to file a response to this Court’s Rule to 

Show Cause. As such, her claims are 

properly dismissed for failure to comply 

with an Order of Court.

Trial court opinion, 1/22/16 at 1-3.

This timely appeal followed. Appellants complied with 

Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a) opinion.

As described above, appellants did not file a meaningful response to 

the trial court’s show cause order, including why they failed to file an 

amended complaint. Appellants failed to provide any legal or factual 

authority as to why the case should not be dismissed. Appellants’ cause of 

action was clearly barred by the applicable statute of limitations.2 

 

2 All of appellants’ allegations relate to the defendants’ representation during 

the years 2003-2005. (See plaintiffs’ complaint, 4/19/10 at 5-12; docket 

#2.) Appellants filed their complaint on April 19, 2010, well outside the 

statute of limitations for a legal malpractice action. See Wachovia Bank, 

N.A. v. Ferretti, 935 A.2d 565, 570-571 (Pa.Super. 2007) (an action for 

legal malpractice may be brought in either contract or tort; the two-year 

limitations period applies to the negligence claim and the four-year 

limitations period applies to the breach of contract claim); 42 Pa.C.S.A. 

§§ 5524(3), 5525.
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Regarding their motion for recusal,3at the time the motion was filed, 

the Honorable Bruce F. Bratton was the civil calendar judge, and the case 

had not yet been assigned. Judge Bratton simply directed the parties to file 

a status report. Judge Bratton denied the motion on August 5, 2015, stating 

that, “Judge Bratton issued orders relating to termination of the case due to 

inactivity in his capacity as civil calendar judge and has not been assigned 

this case.” (Order, 8/5/15 at 1; docket #49.) Judge Bratton refused to 

entertain the motion at that time. (Id.) Subsequently, after Judge Bratton 

was assigned the case and issued the Rule to Show Cause, appellants did 

not renew their motion to recuse. As such, the matter could be deemed 

waived. 

At any rate, even assuming that Judge Bratton should have stepped 

aside because he represented appellants in the underlying case, this court 

will not remand for assignment to a different judge where appellants failed 

to comply with the August 20, 2015 Rule to Show Cause. Judge Bratton 

properly dismissed appellants’ complaint with prejudice and any remand 

would be superfluous.

Order affirmed.

 

3

“Recusal is required whenever there is substantial doubt as to a jurist’s 

ability to preside impartially.” Commonwealth v. Tainan, 734 A.2d 886, 

889 (Pa.Super. 1999) (citation omitted). The burden is on the party moving 

for recusal; there is a presumption that a judge has acted properly, bound 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/13/2016

 

by the oaths of his office and faithful to the requirements of an 

unprejudiced, unbiased judiciary. Id.