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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 a gainst 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] irreprehensi ble 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 objectio ns. 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 enter ed 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 statem ent 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 cop y 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 concernin g 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 well
reasoned opinion authored by the Honorable Richard M. Hughes, III, to affirm the trial co urt’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 T h e Po stCo n v i cti o n Re lief Ac t ( " P .C
. R. A
. ") , 42 Pa
. C .S
. A
. § 9 541 e t s eq . , es t abli s he s th e p roces s fo r ob t a ini n g c o ll at e ral relief fr om a c rim inal c o nvicti o n i n th e C onunonw e alth of Pe m~s y l va nia
. ' Fi n le yed' Plainti ff." Th e und e rl y in g fa ct s, as d e t ai led inthe Complaint , are as f o llov
. v s : D es truc ti o n of Pl ai n tiff P ape rwo rk ; [and] 3 ) In effe ctiv e C oun se l includin g wh e n D e fe n d a nt Pl ai ntiff' s Compl ain t enum e rat ed th re e cau s es o f ac ti on : 

### "1) F raud, mi s r e p res e nt ation ; 

### 2 ) Co mplain t B ac kground O rder dat e d Dec e mber 7 , 2015. thi s c ourt S u s ta i ned De fe ndant 's P relimin ary Obj e ction and di s mi s sed P l a inti ff's Comp l aint by O bj e ction t o th e Co mpl a int i n th e natur e o f a d e murr e r . Fo r th e r e ason s s~ t f 01 1h in thi s Opini o n , K e lly , wh o had se r ve d a s Pl ai nti ff's ap p o inted co uns el i n a P
. C
. R.A
. 1 m atter , filed a P r e limin ary by 

### p ro s e Plaintiff Mick e y Casti llo on Jul y 6, 2015. On Augu s t 17, 2015, D efe ndant M atthew P
. Thi s Opinion ari se s out of a Civil Compl a int all eg ing p ro fessional leg a l malp ra ctice fil e d Introdu c tion 

### 1925(a) OPINION IN SUPPORT OF ORDER t-.1A TTH E\\' P. KE LL Y, v s . CIVIL A CTI ON - LAW

101 3 6 of 2 013 NO. D efe ndant s Pl ai ntiff 

### : IN T HE C OUR T OF CO MM ON PL E AS O F L UZ E RNE C O UNTY MI C KE Y R. C AS TIL LO ~ Circulated 11/02/2016 01:50 PM

## ..

. .. 2 2 P l a inti f fs s t at e m en t th at h e w as "Fi nl e ye d " by D efe nd an t sugge s t s th at D efen d an t, i n th e co ur s e o f hi s r e pre se n t ati on of P l ai nti ff durin g h is P. C. R. A
. appeal , filed w h at h as com e t o be kn own a s a " Fi n ley L e tt e r ", a ft e r C omm o nw ea lth v . Fi nl ey , 55 0 A. 2 d 2 13 (Pa
. S up e r . 1 988 ). In F i n l e y , th e S u peri or Co u rt o f Pe nn s ylv a ni a a c knowl e dg e d th at a n atto rn e y appoint e d to r e pr e sent a P
. C
. R. A. p e titi on e r n e e d no t pur s u e frivo l ou s clai ms bu t need on l y co n d u c t " an in d e p e n d e n t r e v i e w of th e r ecor d , " wh i cl r- ~ e qu ir e d " I ) A ' n o-m e ri t ' l e tter
. . . detai l in g th e natur e an d ex t e nt of [ c oun se l' s ] r e view; 2) th e ' no m e rit' l ett er . .. li s ti n g eac h i ss ue th e p etiti o n e r wi s h e d to hav e r e vie w e d ; 3) [ C ]oun s el 's ' e xp l an ati on', i n th e 'no -m e ri t ' l e tt er, o f w hy the peti ti o n er ' s i s s u e s w e r e me ri tl es s ; 4) T he [ re vi e win g ] c o urt co n du c tin g it s ow n i n d e p e nd e n t r e vi e w o f th e r ec or d ; a nd 5) T he [ r e v i ewi ng ] c o u rt ag r ee in g w i th co un se l that th e p e titi o n wa s m e ri tl e s s . " I d. ( c i tin g P e nns y lv an ia v . F i nl ey, 481 U.S
. 551 (1 987 ))
.
. . - 

### "Defendan t h as s t at e d h e [ di d n ' t] have a n y" r e l evant paperwo r ~ . Complaint 

## ,r,r 1 5-17
. P l a inti ff person a ll y to Defe n dan t' s office to r etri e ve p aperwo rk so a s to li ti g at e " that acti on, bu t that P l ain ti ff next a ve r s that h e fil e d a f e d e ra l hab e as corpus a ctio n , a n d "in Apri l 2 01 3 w e nt C ourt [ d e n y in g ] P l ai ntiff r e l ief." Comp l ai nt ~ 1 3. 11-1 2. T h ese action s, P l a intiff a ll ege s , " s abotaged" h im a nd " re s u lt e d i n ... th e P a. S u p erior s u c h matter" a nd states th at in " Jul y 2 0 13 P l a in ti ff w as ' Fi n l e yed' b y Def e nda n t
. " ? Co r np l a in t j'[ • 

### P l ai nti ff states th at "De fe nda nt t o ok n o a c tio n ... a nd direc t ed P la in tiff i n es s e n ce to go pro - se o n \ 

### s tan ding", b ut pro v i d es n o l egal s up port or o th e r d oc um e n tatio n fo r thi s clai m. C o mp l a in t f 1 0. c ur ed." Comp l ai nt f 9. P lai nti ff aver s that " [ a jll p ro ced ur e s fro m 7 / 8 / 1 0 h a v e n o l ega l p roc e dur es s in c e 7

/8/1 0 ar e o f n o effec t a n d in fac t ar e s till to ll ed till trigge ri n g effect h a s b e e n that si n ce the 7 /8/ 10 ' Se n t e nc e Or d er ' w a s n ot form a ll y e n tered i n t o th e Docke t a ll l egal Pl ai nti ff s t at e s th at , i n Ja nu ary , 2 0 13 , he " beca m e aware a n d forw ar de d t o [ De fe n d a nt] , t o r ep r es e n t Pl ain ti ff' s ap peal of th e de n ial o f re li ef. Co mp l ai nt 

# , r 8. 2 6 , 2 01 2. Comp l a in t 

# ir ~ 6

- 7
. On D ec e mb er 5, 20 1 2 , Defe n d a n t Matth e w P
. Ke ll y w a s ap p o inted Pl ain tiff fi l e d a P.C.R.A. p e ti ti o n o n Ju ly 8, 2 01 1; th at P
. C.R.A. p e titi on wa s de n i e d on Oc t obe r p ro b ati o n , fo ll owi n g a n A p ril 1 4, 2010 co n v i c ti on o f fe l o n y drug possess i on. Comp l ai n t 

### ,I 5. On J u ly 8 , 20 10 , P~ inti ff wa s se n t e n ced to 4 to 8 ye ars i n prison, wi th 2 y e ar s of 

# L,,, 3 ' \ 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 Con s ideration." Plaintiff n e ver 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, me a ning that the factual averments within were deemed admitted. Pa. R.C.P. § l029(b); see a lso Action Industries, Inc. v. Wiedeman/346 A.2d 798, 800 (Pa. Super. 1975). Although Plaintiff's failure to respond to Defendant's Preliminary ?,bjedion re s ulted in th e 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 Indu s tries, 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 Compl a int and D e fendant's P reliminary 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 i t did this court applied an improper standard of review to a de murrer, 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,e ' 7 

# . \ 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) Moreove r , 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 '

# ------------------------~= ~ ~~-~ ~ -----· - -------- - . 8 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 rulin g 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