J-S80001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICKEY CASTILLO IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MATTHEW P. KELLY

Appellee No. 36 MDA 2016

Appeal from the Order Entered December 7, 2015

In the Court of Common Pleas of Luzerne County

Civil Division at No(s): 10136-2013

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED DECEMBER 01, 2016

Mickey Castillo appeals, pro se, from the trial court’s order sustaining 

Attorney Matthew P. Kelly’s preliminary objections and dismissing Castillo’s 

supplementary malpractice complaint. We affirm.

In July 2010, Castillo was convicted of felony drug possession and 

sentenced to 4-8 years in prison, with a two-year probationary tail. Kelly 

was Castillo’s appellate counsel following the denial of post-conviction relief. 

On August 26, 2013, Castillo filed a praecipe for a writ of summons against 

Kelly and, on July 6, 2015, a malpractice complaint against Kelly asserting: 

(1) fraud; (2) destruction of paperwork; and (3) legal malpractice. In his 

complaint, Castillo claimed that “[Kelly’s] actions have destroyed, sabotaged 

[and] interfered with [his] absolute guaranteed constitutional right to 

procedural ‘Due Process’ and . . . [sought the] disbarment of [Kelly] . . . 

[and] $[15] [m]illion dollars [compensatory and punitive damages] for 
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"mental and emotional distress[, Kelly’s] irreprehensible and corrupt 

[actions] and fraud.” Castillo’s Supplementary Malpractice Complaint, at 5-

6.

Kelly filed preliminary objections claiming that the complaint failed to 

assert a cause of action upon which relief could be granted. See Pa.R.C.P. 

1028(a)(4). On August 17, 2015, the preliminary objections were served 

upon Castillo, including a notice to plead within twenty days or suffer an 

adverse judgment. On September 3, 2015, Castillo filed a motion for an 

extension to respond to the preliminary objections. On November 6, 2015, 

Castillo filed a motion for a hearing to stay the matter pending resolution of 

his federal habeas corpus petition. On that same day, the trial court denied 

Castillo’s motion for stay. 

On December 7, 2015, the trial court entered an order sustaining 

Kelly’s preliminary objections and dismissing with prejudice Castillo’s 

complaint. Castillo filed a timely appeal on January 7, 2016.1 On January 

21, 2016, the trial court ordered Castillo to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal within 30 days; Castillo 

____________________________________________

1 Kelly has filed a motion to quash the instant appeal claiming that Castillo 

filed an untimely notice of appeal and that a copy of the trial court docket 

was not attached to the notice of appeal. The docket indicates that notice of 

the trial court’s order granting Appellee’s preliminary objections and 

dismissing Castillo’s complaint was sent to the parties on December 8, 2015. 

See Pa.R.C.P. 236. Therefore, Castillo’s January 7, 2016 notice of appeal is 

timely. See Pa.R.A.P. 903(a). Additionally, a copy of the trial court docket 

is included in the certified record on appeal, therefore we decline to quash 

the appeal on that basis as well.
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complied with the order, filing his statement on February 19, 2016. On April 

1, 2016, the trial court filed a Rule 1925(a) opinion.

On appeal, Castillo raises several related issues concerning the trial 

court’s decision to dismiss his complaint. After careful review of the parties’ 

briefs, relevant case law and the record on appeal, we rely upon the wellreasoned opinion authored by the Honorable Richard M. Hughes, III, to 

affirm the trial court’s order. 

Allegations of fraud must be pled with specificity. See Pa.R.C.P. 

1019(b). Castillo fails to specify exactly how counsel misrepresented him. 

With regard to his claim of destruction of documents, Castillo failed to 

specify what documents, if any, Kelly destroyed. Kelly merely informed 

Castillo that he did not possess papers that he had requested. Finally, 

Castillo’s vague assertions that Kelly “sabotaged” and “gutted” his PCRA 

appeal are not grounded in any facts or supported by law that would grant 

him relief. The fact that counsel filed a Finley letter does not automatically 

equate to legal malpractice; in order to sustain a malpractice action against 

a criminal defense attorney, a plaintiff must establish five elements. See 

Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993). Castillo has simply not 

alleged any facts to support elements 2-5 of the Bailey test. 

Order affirmed.2

____________________________________________

2 We instruct the parties to attach a copy of President Judge Hughes’ opinion 

in the event of further proceedings in the matter.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2016
. \ 

I The PostConviction Relief Act ("P.C.R.A."), 42 Pa. C.S.A. § 9541 et seq., establishes the process for obtaining 

collateral relief from a criminal conviction in the Conunonwealth of Pem~sylvania . 

'Finleyed' Plaintiff." The underlying facts, as detailed inthe Complaint, are as follov . vs: 

Destruction of Plaintiff Paperwork; [and] 3) Ineffective Counsel including when Defendant 

Plaintiff's Complaint enumerated three causes of action: "1) Fraud, misrepresentation; 2) 

Complaint 

Background 

Order dated December 7, 2015. 

this court Sustained Defendant's Preliminary Objection and dismissed Plaintiff's Complaint by 

Objection to the Complaint in the nature of a demurrer. For the reasons s~t f011h in this Opinion, 

Kelly, who had served as Plaintiff's appointed counsel in a P.C.R.A.1 matter, filed a Preliminary 

by pro se Plaintiff Mickey Castillo on July 6, 2015. On August 17, 2015, Defendant Matthew P. 

This Opinion arises out of a Civil Complaint alleging professional legal malpractice filed 

Introduction 

1925(a) OPINION IN SUPPORT OF ORDER 

t-.1A TTHE\\' P. KELLY, 

vs. 

CIVIL ACTION - LAW 

Defendants NO. 10136 of2013 

Plaintiff 

: IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

MICKEY R. CASTILLO ~ 

Circulated 11/02/2016 01:50 PM
.. 

... 

2 

2 Plaintiffs statement that he was "Finleyed" by Defendant suggests that Defendant, in the course of his 

representation of Plaintiff during his P.C.R.A. appeal, filed what has come to be known as a "Finley Letter", after 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). In Finley, the Superior Court of Pennsylvania 

acknowledged that an attorney appointed to represent a P .C.R.A. petitioner need not pursue frivolous claims but 

need only conduct "an independent review of the record," whiclr-~equired "I) A 'no-merit' letter ... detailing the 

nature and extent of [counsel's] review; 2) the 'no merit' letter. .. listing each issue the petitioner wished to have 

reviewed; 3) [C]ounsel 's 'explanation', in the 'no-merit' letter, of why the petitioner's issues were meritless; 4) The 

[reviewing] court conducting its own independent review of the record; and 5) The [reviewing] court agreeing with 

counsel that the petition was meritless." Id. (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). 

. . - 

"Defendant has stated he [didn't] have any" relevant paperwor~. Complaint ,r,r 15-17. Plaintiff 

personally to Defendant's office to retrieve paperwork so as to litigate" that action, but that 

Plaintiff next avers that he filed a federal habeas corpus action, and "in April 2013 went 

Court [ denying] Plaintiff relief." Complaint ~ 13. 

11-12. These actions, Plaintiff alleges, "sabotaged" him and "resulted in ... the Pa. Superior 

such matter" and states that in "July 2013 Plaintiff was 'Finleyed' by Defendant."? Cornplaint j'[ 

• 

Plaintiff states that "Defendant took no action ... and directed Plaintiff in essence to go pro-se on 

\ 

standing", but provides no legal support or other documentation for this claim. Complaint f 10. 

cured." Complaint f 9. Plaintiff avers that "[ajll procedures from 7/8/10 have no legal 

procedures since 7 /8/10 are of no effect and in fact are still tolled till triggering effect has been 

that since the 7/8/10 'Sentence Order' was not formally entered into the Docket all legal 

Plaintiff states that, in January, 2013, he "became aware and forwarded to [Defendant] 

, to represent Plaintiff's appeal of the denial of relief. Complaint ,r 8. 

26, 2012. Complaint ir~ 6-7. On December 5, 2012, Defendant Matthew P. Kelly was appointed 

Plaintiff filed a P.C.R.A. petition on July 8, 2011; that P.C.R.A. petition was denied on October 

probation, following an April 14, 2010 conviction of felony drug possession. Complaint ,I 5. 

On July 8, 2010, P~intiff was sentenced to 4 to 8 years in prison, with 2 years of 

L 
3 ,,, 

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3 Luzerne County Rule of Civil Procedure 206.4(c)(B)(l) states "Where the moving patty is seeking immediate 

reliefin addition to the issua~ice of the Rule to Show Cause ... a party seeking the same shall present the Rule to 

Show Cause along with the underlying Motion/Petition, a comprehensive Brief in support and Proposed Order, to 

Judge presiding over Motions Court (held every work day from 8:30 a.m. to 9: 15 a.m.).3 Both 

the one filed by Plaintiff are required by Local Rule 206.4( c) to be presented in person to the 

Luzerne County Prothonotary a "Motion and Request for E?ension to Respond" to Defendant's 

Preliminary Objection. The Prothonotary mailed a letter to Plaintiff, stating that motions such as 

On September I, 2015, Plaintiff, who had since been released from prison, mailed to the 

I 

.. 

Objection was served on Plaintiff with an attached Notice to Plead within twenty days. 

support claims for fraud, destruction of documents, or malpractice. Defendant's Preliminary 

be granted .... " Defendant simply argued that the Complaint did not assert facts that could 

demurrer, averring that "[t]he Complaint fails to assert any cause of action upon which relief can 

On August 17, 2015, Defendant filed a single Preliminary Objection in the nature of a 

Preliminary Objection 

punitive damages for "mental and emotional distress." Complaint v[ 20-21, 23-25. 

Complaint seeks the disbarment of Defendant and a total of $15 million in compensatory and 

[Plaintiff's] absolute guaranteed constitutional right to procedural due process"; Plaintiff's 

Ultimately, Plaintiff alleges that defendant "destroyed, sabotaged, [ and] interfered with 

, illegally, funds from the Public Defenders' fund." Complaint ~ 18. 

been given jurisdiction to litigate [Plaintiff's] legal cause ... result[ing] in [Defendant] taking, 

Additionally, Plaintiff makes a claim titled "fraud", stating that "Defendant had never 

opposite [to his legal] duty." Complaint j 19. 

~l 

makes a claim for "Destruction of Plaintiffs paperwork," alleging that "Defendant's acts are 
.. 

4 

Motions Court for Consideration." Plaintiff never properly presented a motion for extension of time to respond to 

Defendant's Preliminary Objection, and as such was required to plead within twenty days. Plaintiff never did 

respond to Defendant's Preliminary Objection, meaning that the factual averments within were deemed admitted. 

Pa. R.C.P. § l029(b); see also Action Industries, Inc. v. Wiedeman/346 A.2d 798, 800 (Pa. Super. 1975). Although 

Plaintiff's failure to respond to Defendant's Preliminary ?,bjedion resulted in the admission of any facts therein, 

"[i)t does not follow ... that the preliminary objections must be sustail~ed; that depends upon the facts that have been 

admitted." Action Industries, Inc., 346 A.2d at 800. Hence, this court ruled on the merits of Defendant's 

Preliminary Objection, based upon the facts alleged in. both Plaintiff's Complaint and Defendant's Preliminary 

Objection. 

should have been allowed to proceed to discovery, at which time-he would document "how the 

I 

not exist." The fourth error alleged is essentially the same as the third, stating that Plaintiff 

have been ignored and the law cited in Plaintiff's brief and complaint has been treated as if it did 

this court applied an improper standard of review to a demurrer, inasmuch as "factual allegations 

adjudicate the claims ... raised ... [ on] the merits .... " The third error alleged was essentially that 

second error alleged was that this court abused its discretion in "declining to address and 

The first error alleged was that this court's Order was "constitutionally deficient." The 

Plaintiff filed a statement containing five alleged errors. 

Procedure 1925(b ), directing Plaintiff to file a statement of errors complained of on appeal; 

on January 7, 2016. This court issued an Order pursuant to Pennsylvania Rule of Appellate 

December 7, 2015. Plaintiff filed an appeal of this Order to the Superior Court of Pennsylvania 

sustained Defendant> s Objection and dismissed Plaintiff's Complaint with prejudice by Order of 

This court, upon consideration of the Complaint and the Preliminary Objection thereto, 

Order and Appeal 

docket does not show that Plaintiffs Motion was ever properly presented to a Judge. 

"'J 

the improperly-filed motion and Prothonotary's letter were docketed with proof of service. The 
& ~· •. • ·- ' I . . , . ! . - I . . . .. . . . . 

5 

misrepresentation; 2) a fraudulent utterance thereof; 3) intention to induce action thereby; 4) 

justifiable reliance thereon; and 5) damage as a proximate result. V-Tech Services, Inc. v. Street, 

In the Commonwealth of Pennsylvania, a cause of action for fraud has five elements: 1) 

causes of action mentioned in the Complaint. 

The remainder of this section of the Opinion will apply this standard to each of the three 

Architectural Studio, 866 A.2d 270, 274 (Pa. 2005)). 

be resolved in favor of overruling it." Id. ( quoting Bilt-Rite Contractors, Inc. v. The 

possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should 

demurrer is whether, on thefacts averred, the law says with certainty that no recovery is 

deducible therefrom must be admitted as true." Id. As such, "the question presented by the 

nature of a demurrer, "[ a ]ll material facts set forth in the pleading and all inferences reasonably 

Medical Center, 51 A.3d 202, 208 (Pa. Super. 2012). In rnling on a preliminary objection in the 

properly granted where the contested pleading is legally insufficient." Weiley v. Albeit Einstein 

It is well-established that " [ a J preliminary objection in the nature of a demurrer is 

Analysis 

of the present Opinion. 

required under Pennsylvania Rule of Appellate Procedure 1925(a); that is, of course, the purpose 

Plaintiff alleges error in that no reason for the December 7, 2015 decision has been given as 

process[ es] of Justice are b~}ng subverted to the shock [ of] everyone's conscience." Finally, 
6 

There is absolutely no factual avennent in the Complaint detailing what paperwork was at issue, 

Defendant's office to retrieve legal paperwork and that Defendant stated he did not have any. 

To support this claim, Plaintiff merely states that, during April 2013, he went to 

Destruction of Documents 

Defendant. As such, the Complaint cannot support a claim/or fraud. 

Complaint, nor can any factual avennents suggesting any intent ro mislead on the part of the 

Plaintiff yet lied about it. No such factual averment can be located within or inferred from the 

misrepresentation unless he was or should have been aware that he could not properly represent 

and void. However, even assuming this was the case, Defendant would not have committed a 

sentencing- including the appointment of Defendant as P.C.R.A. appellate counsel - are null 

•, 

some perceived docketing defect on which he based his P.C.R.A. claim, all actions following his 

litigate [Plaintiffs] legal cause." \Read charitably, Plaintiff seems to be alleging that, due to 

closest Plaintiff comes is to nakedly aver that "Defendant had never been given jurisdiction to 

sustain a cause of action for fraud. Plaintiff has alleged no misrepresentation by Defendant; the 

In the present case, the Complaint, read in a light most charitable to Plaintiff, cannot 

v. Central-Penn National Bank of Philadelphia, 224 A.2d 174 (Pa. 1966). 

they must be sufficient to convince the court that the avennents are not merely subterfuge." Bata 

,.. 

explain the nature of the claim to the opposing party so as to permit him to prepare a defense and 

shall be averred with particularity." This means that "pleadings [of fraud] must adequately 

Under Pennsylvania Rule of Civil Procedure 10 l 9(b ), "Averments of fraud or mistake 

598 A.2d 1310, 1315 (Pa. Super. I 991 )). 

72 A.3d 270, 275 (Pa. Super. 2013) (quoting Wilson v. Donegal Mutual Insurance Company, 
7 e ' 

. \ 

provides 110 support for his legal assertion regarding the effect of the purported docketing error, 

"sabotaged" and "gutted" Plaintiffs-appeal, resulting in the denial of the appeal. Plaintiff 

filed a Finley Letter regarding Plaintiff's P.C.R.A. appeal, and vague assertions that Defendant 

Defendant didn't pursue Plaintiffs legal theory regarding a purported docketing error, Defendant 

The facts alleged in the Complaint to support Plaintiffs malpractice claim are that 

108, 114-15 (Pa.1993). 

and obtained relief which was dependent upon attorney error. ... "1 Bailey v. Tucker, 621 A.2d 

prevail in an action in criminal malpractice unless and until he has pursued post-trial remedies 

injury, the criminal defendant/plaintiff suffered damages; [and] (5) Moreover, a plaintiff will not 

would have obtained an acquittal or a complete dismissal of the charges; (4) As a result of the 

suffered by the defendant/plaintiff, i.e., 'but for' the attorney's conduct, the defendant/plaintiff 

~ 

part of the attorney; (3) the attorney's culpable conduct was the proximate-cause of an injury 

employment of the attorney; (2) Reckless or wanton disregard of the defendant's interest on the 

action against a criminal defense attorney ... must establish the following elements: (1) The 

The Supreme Court of Pennsylvania has held "that a plaintiff seeking to bring a trespass 

Ineffective Counsel/Malpractice 

of action for conversion or some other tort arising out of alleged clestrnction of documents. 

, .. 

· whether there was any such paperwork in the first place - the Complaint cannot support a cause 

court can conclude that Defendant was ever in possession of Plaintiffs papenvork- or, indeed, 

statement that he did not possess the requested paperwork. Without any facts upon which the 

moved, stored, or hidden. Essentially, the Complaint merely suggests a disbelief in Defendant's 

whether Defendant ever had possession of this paperwork, or whether it was destroyed, lost, 

I ' 
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BY THE COURT: 

and mail a copy to all counsel of record, pursuant to Pa. R.C.P 236. 

The Office of Judicial Records/Prothonotary is directed to enter this Opinion of record, 

Objection on December 7, 2015. 

rights. For the foregoing reasons, this court properly sustained Defendant's Preliminary 

a preliminary objection in the nature of a demurrer and otherwise properly preserved Plaintiff's 

In ruling on Defendant's Preliminary Objection, this court applied the proper standard for 

Conclusion 

support fl civil cause of action for legal malpractice against Defendant. 

Super. 1988). Taken in the light most favorable to the Plaintiff, the Complaint simply does not 

... 

'endorsed by the Superior Court of Pennsylvania in Commonwealth v. Finley, 896 A.2d 607 (Pa. 

culpable disregard for Plaintiffs interest, as the filing of such a letter has been explained and 

Clearly, the mere fact that Defendant filed a "Finley Letter" does not demonstrate 

have been granted but for the actions of Defendant. 

nor does he provide any support upon which it can be inferred that his P.C.R.A. appeal would