Castillo v. Kelly

JUDGMENT ORDER BY LAZARUS, J.

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.:

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 "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. 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 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 well-reasoned 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. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/1/2016

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