J-S27018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DENNIS HORTON, 

Appellant

v.

JAMES S. BRUNO

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2176 EDA 2016

Appeal from the Order June 9, 2016

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): 130202725

BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED July 3, 2017

Dennis Horton appeals, pro se, from the order entered June 9, 2016, 

in the Philadelphia County Court of Common Pleas, granting the motion for 

summary judgment filed by defendant, James S. Bruno, in this legal 

malpractice action.1 Horton is currently serving a prison term of life 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We note Horton’s notice of appeal filed on July 12, 2016, was premature 

because, at that time, his motion for summary judgment, filed in May of 

2016, was still outstanding. See Pa.R.A.P. 341(b)(1) (a final order is one 

that, inter alia, “disposes of all claims and of all parties”). However, on 

September 13, 2016, the trial court entered an order denying Horton’s 

motion. Accordingly, Horton’s appeal is properly before us. See Pa.R.A.P. 

905(a)(5) (“A notice of appeal filed after the announcement of a 

determination but before the entry of an appealable order shall be treated as 

filed after such entry and on the day thereof.”).

 
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imprisonment for a 1994 conviction of second-degree murder2and related 

charges. Bruno served as Horton’s Post Conviction Relief Act (“PCRA”)3

counsel from 2009 to 2011. Thereafter, Horton reported Bruno to the 

Pennsylvania Disciplinary Board, and based upon his representation of 

Horton and several other clients, Bruno was subsequently suspended from 

the practice of law for two years. While the disciplinary proceedings were 

pending, Horton filed this civil complaint asserting legal malpractice. On 

appeal, Horton contends the trial court erred or abused its discretion by: (1) 

denying his pretrial motion to amend his complaint; (2) denying his motion 

to compel Bruno to produce certain documents; and (3) granting Bruno’s 

motion for summary judgment. For the reasons below, we affirm.

The facts and procedural history underlying this appeal are aptly 

summarized by the trial court as follows:

On September 30, 1994, a jury convicted [Horton] of 

murder in the second degree, three counts of aggravated 

assault, four counts of robbery, and one count each of criminal 

conspiracy and possessing an instrument of crime. [See 

Commonwealth v. Horton, 48 A.3d 479 (Pa. Super. 2012) 

(unpublished memorandum)]. [Horton] was sentenced to an 

aggregate term of life imprisonment for the murder plus 

eighteen and a half to sixty-one years’ imprisonment for the 

remaining offenses. On March 20, 1996, the Superior Court 

affirmed the judgment of sentence. Commonwealth v. 

Horton, 678 A.2d 828 (Pa. Super. 1996) (unpublished 

mem[orandum]).

____________________________________________

2 See 18 Pa.C.S. § 2502.

3 42 Pa.C.S. §§ 9541-9546.
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On October 11, 1996, [Horton] retained private counsel 

and filed his first Post Conviction Relief Act (“PCRA”) petition.1

The trial court dismissed [Horton’s] PCRA petition, and the 

Superior Court affirmed. See Commonwealth v. Horton, 736 

A.2d 9 (Pa. Super. 1998) (unpublished mem[orandum]), appeal 

denied, 738 A.2d 455 (Pa. 1999).

__________

1 The pleadings and the Superior Court opinion, Horton, 

48 A.3d 479, maintain that [Horton’s] first PCRA petition 

did not raise his original trial counsel’s ineffective 

assistance in failing to subpoena medical records. The 

Superior Court added: “[Horton] could have filed a PCRA 

petition long before now, claiming trial counsel’s 

ineffectiveness in not seeking to subpoena the medical 

records, and the records could have been subpoenaed at 

that time.” Horton, 48 A.3d 479.

__________

On January 30, 2006, around ten years after the judgments 

of sentence became final,2[Horton] filed his second PCRA 

petition, raising an after-discovered facts time bar exception. 

On March 20, 2007, the trial court issued notice under 

Pa.R.Crim.P. 907 of its intention to dismiss the petition as 

untimely. On March 11, 2009, [Bruno] was appointed to 

represent [Horton]. On December 8, 2009, [Bruno] filed an 

amended PCRA petition on behalf of [Horton], raising additional 

claims to the time bar exception. On May 4, 2010, the trial court 

issued a Rule 907 notice of its intention to dismiss the amended 

petition as without merit. On June 1, 2010, [Horton] filed a 

response, alleging that [Bruno] rendered ineffective assistance in 

his amended petition. The trial court dismissed the petition on 

September 16, 2010. On October 18, 2010, [Horton] appealed, 

contending that, among other things, his “after-discovered” 

medical records of his knee injury, which occurred about a 

month before the crime, entitled him to a time bar exception. 

On April 25, 2011, [Horton] filed a pro se motion seeking the 

removal of [Bruno] and a Grazier hearing. [See] 

Commonwealth v. Grazier, 713 A.2d 81 (1998). Following the 

Grazier hearing, the trial court granted [Horton’s] request and 

permitted [Bruno] to withdraw. On April 17, 2012, the Superior 

Court affirmed the trial court’s dismissal of the second PCRA 

petition, reasoning that the petition was untimely, no valid 

exception to the time bar existed, and the remaining issues were 

meritless. Horton, 48 A.3d 479, appeal denied, 60 A.3d 535 
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(Pa. 2012). In or around April 2012, [Horton] made a complaint 

to the Disciplinary Board of the Supreme Court of Pennsylvania 

(“Disciplinary Board”) regarding [Bruno].3

__________

2

[Horton’s] judgment of sentence became final on April 

19, 1996 pursuant to 42 Pa.C.S. § 9545(b)(3) and 

Pa.R.A.P. 1113. Horton, 48 A.3d 479.

3

In May 2013, the Office of Disciplinary Counsel ("ODC") 

charged [Bruno] with violations of the Rules of Professional 

Conduct, arising out of eleven separate claims against him. 

See Disciplinary Board File No. 180 DB 2011 (Pa. 2014). 

On July 18, 2014, the Disciplinary Board recommended the 

suspension of [Bruno’s] license to practice law for one year 

and one day, with probation of three years, subject to 

conditions. On November 13, 2014, upon consideration of 

the Report and Recommendation of the Disciplinary Board, 

the Supreme Court suspended [Bruno] from the practice of 

law for a period of two years retroactive to February 26, 

2013, followed by a two–year probation [term] after 

reinstatement, subject to conditions. See Supreme Court 

Order dated November 13, 2014.

__________

On February 26, 2013, [Horton] filed the instant action 

against [Bruno] in assumpsit (Count I) and in trespass (Count 

II), alleging that [Bruno’s] ineffective assistance in his criminal 

matter constituted breach of contract and negligence.4 Most 

significantly, the complaint averred that [Bruno] failed to obtain 

and attach affidavits of his treating medical providers and failed 

to subpoena medical records5to his amended PCRA petition, 

which, according to [Horton], prevented him from proving his 

innocence. After the case was transferred from arbitration to 

trial, [Bruno] filed an answer with new matter on July 14, 2014, 

noting that (1) [Horton] never entered into a contractual 

relationship with [Bruno], and the law does not recognize a 

contractual relationship between court-appointed counsel and 

defendant; (2) that [Horton] raised the issue of getting medical 

treatment for his knee injury at trial; (3) that [Horton], in his 

first PCRA petition, did not raise the issue of his original trial 

counsel’s failure to secure his treating medical providers or 

medical records; and (4) that [Horton] cannot show that but for 

[Bruno’s] negligence (i.e. producing an allegedly defective 

petition), [Horton] would have prevailed because one month 
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prior to the crime, [Horton’s] medical records indicate that he 

was walking with a normal gait. On August 6, 2014, [Horton] 

filed his reply, stating that (1) a contractual obligation was 

formed once [Bruno] accepted the appointment and entered his 

appearance; (2) that the knee injury defense was unavailable at 

trial because the hospital could not locate his file; (3) that it 

would have been inappropriate and frivolous to allege that his 

original trial counsel was ineffective for failing to secure his 

medical records; (4) that [Horton] could have prevailed in his 

second PCRA petition if [Bruno] followed a “multi-tier process,” 

which we summarize here as good lawyering practices; and (5) 

that the outcome of the trial would have been different if his 

complete medical records along with testimony of his treating 

medical providers and his employer6 were included in his second 

PCRA petition. In [Horton’s] new matter, he raised for the first 

time the enforcement of default judgment against [Bruno]. On 

August 25, 2014, [Bruno] replied, claiming noncompliance with 

the rules. 

__________

4 On March, 25, 2013, [Horton] initiated his third PCRA 

petition, requesting discovery and DNA testing. On June 3, 

2015, the trial court issued a Rule 907 notice of its 

intention to dismiss the amended petition as untimely.

5 Alternatively, [Bruno] failed to attach the copies of 

[Horton’s] medical records obtained by [Horton] at the 

prison medical department. 

6

[Horton] also avers that [Bruno] failed to include the 

testimony of his former supervisor Norman Whitest, who 

witnessed [Horton’s] knee injury at work that occurred on 

or about April 26, 1993. The Superior Court noted that 

[Horton] could have raised the knee injury defense at trial 

without the medical records, presenting Norman Whitest 

as a witness to suggest that [Horton] could not have 

committed the crime. Horton, 48 A.3d 479, n.4.

__________

On January 13, 2016, [Horton] filed a motion to compel 

production of documents,7 wherein he sought to discover 

[Bruno’s] documents exchanged with the Disciplinary Board and 

with Attorney Sondra Rodrigues, who was counsel for a codefendant in the criminal matter; and [Bruno’s] counseling and 

treatment records. [Bruno] answered, arguing, inter alia, that 
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the requested items were irrelevant. [Horton] argued that the 

items were relevant and pointed out that [Bruno] waived his 

objections since his answer was untimely and failed to provide 

any reason for the delay. This court denied the motion on May 

24, 2016.

__________

7 The request for production of documents was served 

around June 30, 2015. [Horton] followed up with a letter 

requesting compliance around October 10, 2015. 

__________

On April 5, 2016, [Bruno] moved for summary judgment 

after discovery was completed and pleadings closed. 

Specifically, [Bruno] argued that summary judgment was 

appropriate because (1) there was no contractual relationship 

between [Horton] and [Bruno], and (2) since the second PCRA 

petition was held to be untimely by both the trial court and the 

Superior Court, [Horton] could not have committed malpractice 

for failing to include the medical evidence. On April 29, 2016, 

[Horton] filed an answer in opposition to the motion for 

summary judgment denying [Bruno’s] averments because a 

contractual relationship allegedly existed and the Superior 

Court’s holding on his second PCRA petition would have been 

different but for [Bruno’s] negligence. On May 18, 2016, 

[Horton] moved for summary judgment, arguing that no genuine 

issues of materials facts exist in his two claims. This court 

granted summary judgment in favor of [Bruno] on June 10, 

2016. [Horton] thereafter filed his notice of appeal on July 12, 

2016 and timely issued his Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal on August 25, 2016. [Horton’s] 

motion for summary judgment was denied on September 13, 

2016.

Trial Court Opinion, 9/16/2016, at 1-6 (most citations omitted).

In his first issue on appeal, Horton argues the trial court erred or 

abused its discretion in denying his motion to amend his complaint “to 

introduce new matters and evidence in support [] thereof, which was 

unavailable at the time the Complaint was filed[,]” namely, the disciplinary 

proceedings against Bruno. Horton’s Brief at 8. He asserts that while leave 
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to amend lies within the discretion of the trial court, it should be liberally 

granted. See id. Moreover, Horton contends that to the extent his motion 

was defective in that he did not seek court approval to amend, the trial court 

should have permitted him the opportunity to correct any defect before 

denying the motion. See id. at 10. Furthermore, he maintains any delay in 

filing the motion was attributable to Bruno, since he “never divulged the 

existence of the information in those documents in response to the 

complaint[.]” Id. 

Pennsylvania Rule of Civil Procedure 1033 provides, in relevant part, a 

party may amend a pleading at any time, “either by filed consent of the 

adverse party or by leave of court[.]” Pa.R.C.P. 1033(a). 

Our standard of review of a trial court’s order denying a plaintiff 

leave to amend its complaint, ... permits us to overturn the order 

only if the trial court erred as a matter of law or abused its 

discretion. The trial court enjoys “broad discretion” to grant or 

deny a petition to amend. ... Although the trial court generally 

should exercise its discretion to permit amendment, ... where a 

party will be unable to state a claim on which relief could be 

granted, leave to amend should be denied. 

The Brickman Grp., Ltd. v. CGU Ins. Co., 865 A.2d 918, 926–927 (Pa. 

Super. 2004) (internal citations omitted). “An abuse of discretion occurs

when a trial court ... overrides or misapplies the law, or exercises judgment 

which is manifestly unreasonable, or the result of partiality, prejudice, bias 

or ill will.” Keller v. Mey, 67 A.3d 1, 7 (Pa. Super. 2013).

Our review reveals no abuse of discretion on the part of the trial court. 

First, we note Horton did not seek either Bruno’s consent, or the court’s 
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permission, to amend his complaint. Rather, on April 29, 2016, more than 

three years after he initiated the lawsuit, Horton filed a document titled, 

“Motion Introducing Third, Fourth and Fifth New Matters.” See Motion 

Introducing Third, Fourth and Fifth New Matters, 4/29/2016. The “new 

matters” he sought to introduce were documents from Bruno’s disciplinary 

proceedings, and, in particular Bruno’s stipulation to the facts underlying the 

disciplinary complaint. See id. at 1. Horton asserted these stipulations 

“prove[d] conclusively” the allegations in the legal malpractice complaint, 

and entitled him to a judgment “in the sum of [$]75,000.00.” Id. at 3, 9. 

See also id., Exhibit A, Supplemental Joint Stipulation of Facts in Bruno’s 

disciplinary proceedings, 3/20/2013, at ¶¶ 7-93.

Rule 1033 explicitly requires either “filed consent of the adverse party” 

or “leave of court” before a party may amend his complaint. Pa.R.C.P. 

1033(a). Because Horton obtained neither, the trial court acted well within 

its discretion in denying his belated amendment. Nevertheless, even if we 

presume the trial court should have considered Horton’s pro se filing as a 

petition seeking permission to amend, we still would conclude he is entitled 

to no relief. As will be discussed infra, Bruno’s stipulations in the disciplinary 

proceedings do not prove Horton’s legal malpractice claim. Therefore, 

because the proposed amendments do not “state a claim on which relief 

could be granted,” the trial court did not abuse its discretion in denying 
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Horton permission to amend the pleadings.4 The Brickman Grp., Ltd., 

supra, 865 A.2d at 927. Accordingly, Horton’s first claim fails.

Second, Horton argues the trial court erred or abused its discretion in 

denying his motion to compel the production of documents. See Horton’s 

Brief at 12. By way of background, in June of 2015, Horton served Bruno 

with a request for the production of documents including any and all 

affidavits, documents, statements, and correspondence related to Bruno’s 

disciplinary proceedings and mental health treatment, and any 

correspondence between Bruno and Horton’s co-defendant’s counsel, Sondra 

Rodriques, Esq., related to Horton’s appeal or Bruno’s disciplinary 

proceeding. See Motion to Compel Production of Documents, 1/13/2016, 

Exhibit A, Request for Production of Documents, dated 6/30/2015, at 

unnumbered 2-5. When Bruno failed to respond to the discovery request, 

Horton sent another letter in October of 2015 requesting Bruno’s 

compliance. After Bruno continued to ignore the request, Horton filed a 

motion to compel on January 13, 2016. Bruno filed a response on April 6, 

____________________________________________

4 We note the judge who considered the proposed amendment was not the 

same judge who ruled upon the motion to compel and summary judgment 

motion. See Order, 5/26/2016. Therefore, the trial court, in its opinion, 

presumed the amendment was not permitted because it was “improper 

under Pa.R.C.P. 1033 and untimely.” Trial Court Opinion, 9/16/2016, at 17. 

Nevertheless, we may affirm the decision of the trial court on any basis. 

See Richmond v. McHale, 35 A.3d 779, 786 n.2 (Pa. Super. 2012).
J-S27018-17

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2016, and the trial court subsequently denied the motion by order dated 

May 24, 2016.

Horton contends the court’s denial of his motion to compel was an 

abuse of discretion or error of law. First, Horton asserts Bruno waived any 

objection to the motion to compel because he did not file a response until 

“130 days elapsed.” Horton’s Brief at 14, citing Pa.R.C.P. 4006(a)(2).5 

Second, he maintains the information he requested regarding Bruno’s 

disciplinary proceedings was relevant because the specific details underlying 

the suspension “are closely related to the issues raised in [the] complaint 

and provide irrefutable proof of the material facts in this case.” Id. at 16. 

Third, Horton insists his requests were not overbroad, and the documents he 

sought regarding Bruno’s mental health treatment were “relevant to proving 

... [Bruno] was negligent in handling his PCRA appeal and was the proximate 

cause in him losing that cause of action.” Id. at 17. Fourth, he claims the 

information he sought regarding Bruno’s correspondence with Horton’s codefendant’s counsel would prove Bruno “obtained information from [the 

other] attorney and, negligently, spliced it together into the amended 

petition he filed, which caused it to be insufficient and fatally flawed.” Id.

____________________________________________

5 Rule 4006 provides, in relevant part, a party answering interrogatories 

“shall serve a copy of the answers, and objections if any, within thirty days 

after the service of the interrogatories.” Pa.R.C.P. 4006(a)(2).
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Our review of a trial court order regarding discovery matters is wellsettled: 

The trial court is responsible for “[overseeing] discovery 

between the parties and therefore it is within that court’s 

discretion to determine the appropriate measure necessary to 

insure adequate and prompt discovering of matters allowed by 

the Rules of Civil Procedure.” Pennsylvania Rule of Civil 

Procedure 4003.1 states:

Rule 4003.1 Scope of Discovery Generally. Opinions and 

Contentions

(a) Subject to the provisions of Rules 4003.2 to 4003.5 

inclusive and Rule 4011, a party may obtain discovery 

regarding any matter, not privileged, which is relevant to 

the subject matter involved in the pending action, whether 

it relates to the claim or defense of the party seeking 

discovery or to the claim or defense of any other party ....

(b) It is not ground for objection that the information 

sought will be inadmissible at trial if the information 

sought appears reasonably calculated to lead to the 

discovery of admissible evidence.

Pa.R.C.P. 4003.1(a)(b). Generally, discovery “is liberally allowed 

with respect to any matter, not privileged, which is relevant to 

the cause being tried.” 

PECO Energy Co. v. Ins. Co. of N. Am., 852 A.2d 1230, 1233 (Pa. Super. 

2004).

The trial court disposed of this issue as follows:

First, [Horton] requested all documents sent to or received 

from the Disciplinary Board by [Bruno] before, during, and after 

his suspension. Since [Bruno’s] disciplinary proceedings and 

subsequent suspension were admitted, the production of 

documents relating to those events were not relevant to any 

issue which would have affected a material part of [Horton’s] 

cause of action. Further, this request was overbroad, given the 

drawn-out timeframe. Finally, the relevant documents 
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concerning the disciplinary proceedings and suspension were 

available to the public since November 2014.

Next, [Horton] requested all documents pertaining to inpatient or out-patient counseling and treatment of [Bruno] 

related to the suspension. This request was overbroad, 

irrelevant, and normally would not lead to admissible evidence.

Additionally, [Horton] requested all documents submitted 

by other complainants against [Bruno] in the same disciplinary 

proceedings. [Horton’s] relevancy arguments for this farreaching request did not explain how these documents could 

provide any relevant information to his case. This request was 

denied for the same reasons set forth above.

Lastly, [Horton] requested all correspondence and 

documents exchanged with Attorney Sondra Rodrigues related to 

[Bruno’s] representation of [Horton]. This request was denied 

for the same reasons set forth in the denial of [Horton’s] first 

request related to the disciplinary proceedings and suspension.

Trial Court Opinion, 9/16/2016, at 16.

Our review reveals no error of law or abuse of discretion committed by 

the trial court. First, we note Bruno’s failure to respond in a timely manner 

to Horton’s requests for the production of documents or motion to compel 

does not automatically entitle Horton to relief. “[T]he imposition of 

sanctions always is subject to a balancing test and a weighing of various 

factors.” McGovern v. Hosp. Serv. Ass'n of Ne. Pennsylvania, 785 A.2d 

1012, 1019 (Pa. Super. 2001). 

Second, we agree with the trial court’s conclusion that Horton’s 

requests were overbroad, and much of the information he sought would 

have been irrelevant to the present action. Essentially, Horton sought all

documents and records which were in any way related to the disciplinary 

proceedings. As the trial court explained, the “relevant documents 
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concerning the disciplinary proceedings and suspension were available to the 

public since November 2014.” Id. In a joint stipulation of facts, Bruno 

admitted he failed to respond promptly (if at all) to Horton’s letters and 

requests for information about the PCRA case, and, in doing so, violated the 

Pennsylvania Rules of Professional Conduct. See Motion Introducing Third, 

Fourth and Fifth New Matters, 4/29/2016, Exhibit A, Supplemental Joint 

Stipulation of Facts in Bruno’s disciplinary proceedings, 3/20/2013, at ¶ 93 

(Bruno admitting he violated Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and 

8.4(d), in his representation of Horton). However, as will be discussed infra, 

Bruno’s failings do not prove he committed legal malpractice. Indeed, even 

“a finding of ineffectiveness is not tantamount to a finding of culpable 

conduct” in a legal malpractice action. Bailey v. Tucker, 621 A.2d 108, 

115 n.14 (Pa. 1993). We agree with the trial court’s conclusion that none of 

the information Horton requested would have proven the allegations in his 

complaint. Accordingly, no relief is warranted.

In his third and final claim, Horton contends the trial court erred in 

granting Bruno’s motion for summary judgment. Specifically, he argues (1) 

the court’s ruling was premature because it was made before Bruno was 

required to file an answer to Horton’s motion for summary judgment, and 

(2) there were genuine issues of material fact in dispute. 

When reviewing an order of the trial court granting summary 

judgment, we must bear in mind the following: 
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Summary judgment is appropriate where the record clearly 

demonstrates there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. 

Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 

A.2d 1218, 1221 (2002); Pa. R.C.P. No. 1035.2(1). When 

considering a motion for summary judgment, the trial court must 

take all facts of record and reasonable inferences therefrom in a 

light most favorable to the non-moving party. Toy[ v. 

Metropolitan Life Ins. Co.], 928 A.2d [186,] 195 [(Pa. 2007)]. 

Whether there are no genuine issues as to any material fact 

presents a question of law, and therefore, our standard of review 

is de novo and our scope of review plenary. Weaver v. 

Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899, 

902–03 (2007).

Estate of Agnew v. Ross, 152 A.3d 247, 259 (Pa. 2017).

First, Horton argues the trial court erred in granting Bruno’s motion for 

summary judgment before the time expired for Bruno to file an answer to 

Horton’s motion for summary judgment. He claims the court’s premature 

ruling was prejudicial because “it deprived him of the answers to the 

averments he forwarded in his summary judgment motion, which would 

have caused the court to rule in his favor[.]” Horton’s Brief at 19. 

The trial court disposed of this argument as follows: 

This court ruled on [Bruno’s] motion for summary 

judgment after [Horton] filed his response. [Bruno] did not have 

to file a response to [Horton’s] motion, as this court understood 

and was aware of the legal positions of the parties upon review 

and consideration of all pleadings and affidavits. There appears 

to be no authority on point that mandates a trial court cannot 

dispose of a motion for summary judgment and its subsequent 

response presently before the court until a non-movant filed his 

own motion for summary judgment and the opposing party 

responds. 

Trial Court Opinion, 9/16/2016, at 13.
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We find no basis to disagree. Horton’s attempt to find statutory 

support for his argument in the Pennsylvania Rules of Civil Procedure fails. 

Although Rule 1035.3 requires an adverse party to file a response to a 

motion for summary judgment, and the court may enter judgment against a 

party who does not respond, the Rule does not contemplate the facts herein, 

where the trial court disposes of a party’s motion for summary judgment 

while a cross summary judgment motion is pending. As the court stated 

above, Horton provides no support for his claim that the court’s actions were 

improper. Moreover, the trial court was aware of all the relevant issues at 

the time it granted Bruno’s motion. Accordingly, no relief is warranted.

Second, Horton argues the trial court erred or abused its discretion in 

granting Bruno’s motion when material facts were in dispute. See Horton’s 

Brief at 20. With regard to his assumpsit claim, Horton contends that 

pursuant to Fiorentino v. Rappaport, 693 A.2d 208 (Pa. Super. 1997), 

appeal denied, 701 A.2d 577 (Pa. 1997), once counsel and a defendant 

enter into an attorney/client relationship, even if the attorney is courtappointed, the client may sue for breach of contract or negligence. See 

id. at 21-22. Furthermore, with regard to his negligence claim, Horton 

maintains he “offered irrefutable proof that a) [Bruno] engaged in negligent 

misconduct in his representation of [Horton], and b) his negligent 

misconduct was the proximate cause of [Horton] losing his PCRA appeal.” 

Id. at 20.
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Again, our review of the record, the parties’ briefs, and the relevant 

case law reveals Horton is entitled to no relief. First, we agree with the trial 

court’s determination that Horton cannot maintain a breach of contract 

action against Bruno because Bruno was court-appointed, and “[Horton] 

never retained [Bruno’s] services and had no contract with [Bruno].” Trial 

Court Opinion, 9/16/2016, at 10. See Moore v. McComsey, 459 A.2d 841, 

844 (Pa. Super. 1983) (finding plaintiff was subject to two-year statute of 

limitations for negligence action in legal malpractice claim when counsel had 

been court-appointed and appellate court “deem[ed] it unrealistic to attempt 

to confer upon appellant the status of a third party beneficiary to a contract 

between the Commonwealth and appointed counsel.”). See also IbnSadliika v. Riester, 551 A.2d 1112, 1114 n.2 (Pa. Super. 1988) (“It has 

already been established that a contract of employment does not exist 

between a defendant and court-appointed counsel, and that a legal 

malpractice action against court-appointed counsel will lie only in 

trespass.”), citing Moore, supra. 

Moreover, Horton’s reliance on Fiorentino, supra, is misplaced. In 

that case, the purportedly negligent attorney was hired by the plaintiff to 

represent him in a civil action; he was not a court-appointed attorney in a 
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PCRA case. This factual distinction is dispositive. Accordingly, Horton’s 

breach of contact action fails.6 

With regard to Horton’s negligence claim, we note the Supreme Court 

in Bailey, supra, outlined the requisite elements for a legal malpractice 

action sounding in trespass:

[W]e hold that a plaintiff seeking to bring a trespass action 

against a criminal defense attorney, resulting from his or her 

representation of the plaintiff in criminal proceedings, must 

establish 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; 

____________________________________________

6 Moreover, Horton’s reliance on the Pennsylvania Supreme Court’s decision 

in Reese v. Danforth, 406 A.2d 735 (Pa. 1979), is also misplaced. Horton 

quotes the holding of the Reese Court that “once the appointment of a 

public defender in a given case is made, his public or state function ceases 

and thereafter he functions purely as a private attorney concerned with 

servicing his client ... [and] he ought to be subject to liability for tortious 

conduct.” Id. at 739. However, the Reese Court was concerned only with 

an attorney’s liability for negligent conduct; it did not consider whether a 

client may maintain a breach of contract action against a court-appointed 

attorney.

 
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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.

Bailey, supra, 621 A.2d at 114–115 (footnotes omitted). 

In the present case, the trial court found Horton failed to establish the 

third prong of the Bailey test. The court opined:

[T]he record fails to support the finding that [Horton] “did not 

commit any unlawful acts with which he was charged as well as 

any lesser offenses included therein.” [Bailey, supra, 621 

A.2d] at 115 n.12. We find no facts from which this court could 

conclude that [Horton] was innocent of all the criminal charges 

filed against him. Nor has [Horton] pleaded and proved that 

[Bruno’s] culpably negligent representation was the cause of the 

dismissal of his second PCRA petition in the sense that “but for” 

[Bruno’s] misconduct, [Horton] would have obtained an acquittal 

or complete dismissal of the criminal charges. [Horton’s] failure 

to timely raise or establish a valid after-discovered facts time bar 

exception to his second PCRA petition was not because of 

[Bruno’s] negligence, but due to [Horton’s] failure to raise the 

medical conditions defense in his first PCRA petition. See 

Horton, 48 A.3d 479 (“Since appellant’s petition was untimely 

and no valid exception to the time bar of the PCRA exists, the 

PCRA court was without jurisdiction to review the petition ... 

[T]here was nothing counsel could have done or avoided doing 

that would have changed the outcome.”). Absent fulfillment of 

the third prong for legal malpractice of criminal defense 

attorneys, [Horton] cannot establish criminal malpractice against 

[Bruno]. 

Trial Court Opinion, 9/16/2016, at 11-12.

Again, we find no error or abuse of discretion on the part of the trial 

court. Horton insists the third prong of the Bailey test “must be modified to 

‘but for’ the attorney’s conduct, the plaintiff would have obtained an 

‘evidentiary hearing’ or ‘new trial.’” Horton’s Brief at 22. He further claims 

the trial court should have considered “what may have happened had 
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[Bruno] not been negligent.” Id. at 23. We disagree. The language of 

Bailey is clear: in order to obtain relief, Horton must establish Bruno’s 

“culpable conduct was the proximate cause” of his injury, that is, “‘but for’ 

[Bruno’s] conduct, [Horton] would have obtained an acquittal or a complete 

dismissal of the charges.” Bailey, supra, 621 A.2d at 115. This, Horton 

failed to do.

Nevertheless, we find that even if we considered Horton’s claims under 

the relaxed standard he proposes - that is, whether Bruno’s negligence was 

the proximate cause of Horton’s failure to obtain an evidentiary hearing – we 

would still conclude Horton is entitled to no relief. Horton attempted to 

overcome the PCRA’s time bar by demonstrating the applicability of the 

newly discovered facts exception codified at Section 9545(b)(1)(ii).7 This 

claim was based upon recently received medical records that, he asserts, 

demonstrates he suffered from an injury shortly before the crime that would 

have rendered him “unable to participate in the crime.” Horton, supra, 48 

A.3d 479 (unpublished memorandum at 9). In his legal malpractice 

complaint, Horton maintained the PCRA appellate court denied relief due, in 

part, to Horton’s failure to substantiate that claim with actual evidence. 

Horton attributes the omission to Bruno’s failure to obtain and attach to the 

____________________________________________

7 See 42 Pa.C.S. § 9545(b)(1)(ii) (“[T]he facts upon which the claim is 

predicated were unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence”).
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amended petition the previously misplaced medical records, and affidavits 

from Horton’s treating physicians. See Complaint, 2/26/2013, at ¶ 68(j)-

(k). However, even if Bruno had secured the relevant documents, Horton 

would not have been able to establish a time-bar exception.

The newly discovered facts time-bar exception requires a defendant to 

plead and prove: “1) the facts upon which the claim was predicated were 

unknown and 2) could not have been ascertained by the exercise of due 

diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) 

(internal punctuation and citation omitted; emphasis in original). The 

Supreme Court has made clear that “[t]he focus of the exception is on [the] 

newly discovered facts, not on a newly discovered or newly willing source for 

previously known facts.” Commonwealth v. Marshall, 947 A.2d 714, 720 

(Pa. 2008) (quotation omitted). 

Here, the fact upon which Horton’s PCRA claim was predicated was his 

knee injury, which he claims would have rendered him unable to commit the

crime. However, Horton knew he had injured his knee at the time of trial. 

The medical records and doctor affidavits, which he contends would have 

corroborated his injury, constitute a “newly discovered or newly willing 

source for previously known facts.” Id. See also Commonwealth v. 

Johnson, 945 A.2d 185, 190 (Pa. Super. 2008) (newly discovered witnesses 

willing to testify the victim owed defendant’s co-conspirator money did not 

satisfy the newly discovered facts exception because defendant admitted 

that prior to trial, he knew victim owed money to his co-conspirator; thus, 
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fact was not newly discovered), appeal denied, 956 A.2d 433 (Pa. 2008). 

Therefore, because Horton could not have overcome the PCRA’s time-bar 

even if Bruno had obtained the absent documents, Bruno’s ineffectiveness 

was not the proximate cause of Horton’s injury. Accordingly, the trial court 

properly granted Bruno’s motion for summary judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/3/2017