The opinion
J-A08025-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
JULIO DOMINGUEZ, OLGA : IN THE SUPERIOR COURT OF
CIFUENTES AND MARINA : PENNSYLVANIA
DOMINGUEZ CIFUENTES :
Appellants
No. 635 EDA 2020
G. GUY SMITH, ESQUIRE
Appeal from the Order Entered November 12, 2019
In the Court of Common Pleas of Delaware County Civil Division at
No(s): CV-2018-003236
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED: MAY 10, 2021
In this legal malpractice action, Julio Dominguez, Olga Cifuentes and
Marina Dominguez Cifuentes, (Appellants), appeal from the denial of their
petition to amend complaint, and the grant of the motion for judgment on the
pleadings filed by Appellee G. Guy Smith, Esquire (Smith).
According to Appellants, they brought the underlying action “to recover
damages for the fraud, lack of competent representation and breach of
contract . . . based on Smith’s representation of them in 2015.” Appellants’
Brief at 3. Also according to Appellants:
“ Former Justice specially assigned to the Superior Court.
1 Appellants filed their complaint in Philadelphia County on December 22,
2017; Smith objected to venue, and by order entered March 13, 2018, the
case was transferred to Delaware County.
J-A08025-21
The people involved in this action are Marina Dominguez
Cifuentes (hereinafter Mother), Thomas Karl, a multi-millionaire,
and the Defendant Guy Smith, Esquire. To start Iam going to say
that [the] following story is unbelievable but true. It is
unimaginable that the justice system would allow this to happen,
but every fact stated herein can and will be demonstrated at trial.
Further, it is important to note that the Karl [sic], is an admitted
perjurer, bigamist, and an attorney.
Appellants’ Brief at 4 (footnotes omitted).?
In response, Smith explains:
Thomas K[arl] and Marina Dominguez Cifuentes are the parents
of two children, MAK and TMK. Julio Dominguez and Olga
Cifuentes are Marina Dominguez Cifuentes’ parents, and the
grandparents of MAK and TMK. The contentious relationship of the
parties is fully explained and laid out in three prior opinions of this
Court. No complete or cogent understanding of the parties and the
issues can be made without a review of the prior opinions of this
Court, and that of the custody court, as adopted by this Court.
What is relevant to this appeal is the protection from abuse order,
(“PFA”) obtained by Thomas K[arl] as to [Appellants] in this
action, Marina Dominguez Cifuentes, (“Mother”), and Julio
Dominguez and Olga Cifuentes, (“Grandparents”). [A]ppellee, G.
Guy Smith, Esquire represented Grandparents in relation to the
PFA order, which required Mother and Grandparents to stay away
from the children when in the custody of Thomas K[arl].
Smith’s Brief at 4.
Smith further summarized:
The three opinions were lodged in 3283 EDA 2017, decided May
23, 2019; 3321 EDA 2017, also decided May 23, 2019, and 3499
EDA 2017, decided May 24, 2019. There have been myriad
additional appeals regarding related cases and claims, including
2 To the extent Appellants editorialize and allege facts not of record, we
emphasize it “is black letter law in this jurisdiction that an appellate court
cannot consider anything which is not part of the- record.”
Eichman v. McKeon, 824 A.2d 305, 316 (Pa. Super. 2003) (citation omitted).
J-A08025-21
3654 EDA 2017; 3077 EDA 2018, 390 EDA 2018, 855 EDA 2019
and 1291 EDA 2019. None of these related cases resulted in
opinions by this Court, as these appeals were discontinued or
quashed. There have also been other proceedings in this Court
and the Supreme Court, none of which implicate the decisions in
the cases upon which the trial court relied to grant judgment on
the pleadings in this action.
Smith’s Brief at 4 n.3 (citations to Supplemental Reproduced Record omitted).
In this Court’s prior decision affirming the trial court’s modification of
“the stipulation negotiated by counsel to resolve a Protection From Abuse
petition,” we observed that Appellants have been involved in multiple cases
“with a long, complex, contentious, and convoluted history.” 7.K. v. J.D. &
O.C., No. 3283 EDA 2017 (Pa. Super. May 23, 2019) (unpublished
memorandum at 1-2).
In this appeal, Appellants claim the trial court erred in denying their
petition to amend their complaint, and granting Smith’s motion for judgment
on the pleadings. “When reviewing a trial court’s ruling on a petition to amend
a complaint, we grant the trial court broad discretion in evaluating the
petition.” Diaz v. Schultz, 841 A.2d 546, 549 (Pa. Super. 2004) (citing
Hamilton v. Bechtel, 657 A.2d 980, 981 (Pa. Super. 1995)). “We will not
disturb the sound discretion of the trial court absent an abuse of
discretion.” Id.
When the trial court enters judgment on the pleadings:
The standard to be applied upon review of a_ motion
for judgment on the pleadings accepts all well-pleaded allegations
of the complaint as true. The question presented by the demurrer
is whether, on the facts averred, the law says with certainty that
-3-
J-A08025-21
no recovery is possible. Where a doubt exists as to whether a
demurrer should be sustained, this doubt should be resolved in
favor of overruling it.
Entry of judgment on the pleadings is permitted under Pa.R.C.P.
1034 which provides for such judgment after the pleadings are
closed, but within such time as not to delay trial. A motion
for judgment on the pleadings is similar to a demurrer. It may be
entered when there are no disputed issues of fact and the moving
party is entitled to judgment as a matter of law. In determining if
there is a dispute as to facts, the court must confine its
consideration to the pleadings and relevant documents. The scope
of review on an appeal from the grant of judgment on
the pleadings is plenary. We must determine if the action of the
court below was based on clear error of law or whether there were
facts disclosed by the pleadings which should properly go to the
jury.
Forbes v. King Shooters Supply, 230 A.3d 1181, 1186-87 (Pa. Super.
2020) (citations omitted), appeal denied, 240 A.3d 115 (Pa. 2020).
In the underlying legal malpractice action, Appellants claim Smith was
negligent in providing legal advice in their PFA litigation. See Trial Court
Opinion, 6/17/20, at 1-6. Although Appellants recited nine issues — with
subparts — in their court-ordered concise statement of errors complained on
appeal, they have reduced their number of issues to five, stated as follows:
1. Whether the Trial Court erred when it determined that a secret
payment of $10,000 from the opposing party to Appellants’
Counsel is synonymous with a Court Ordered Payment for
Attorney’s fees.
3 “T.K.” filed three PFA petitions against Appellants in 2015: Nos. 80484,
80483 and 80438 (the first against “M.D.C.” and the latter two against “J.D.
and O.C.”). Custody and divorce proceedings “remain ongoing,” and “there
have been related proceedings in the Court of Common Pleas of Philadelphia
County and the Federal Court System.” Trial Court Opinion, 6/17/20, at 2.
-4-
J-A08025-21
2. Whether the Trial Court erred when it denied Appellants’ First
Request to Amend the Complaint and Refused to Rule on the
Appellants’ Second Request to Amend the Complaint - after
Granting [Smith]’s Request to Amend his answer.
3. Whether the Trial Court erred when it ruled that there were no
issues of material fact.
4. Whether the Trial Court erred when it determined that
“understanding” a settlement agreement dictates that it was a
professionally written agreement.
5. Whether the Trial Court erred when it determined that it is not
a question of fact as to whether an Attorney who incorrectly
advises his client that an action is permitted when in fact the
action was prohibited.
Appellants’ Brief at 2-3.
We have reviewed the record mindful of our aforementioned standards
of review. The crux of Appellants’ overall argument is that they have pled
sufficient facts for their legal malpractice action against Smith to proceed.
Each of Appellants’ issues relates to their assertion that Smith failed to
“perform in a_ professional manner” and exercise “ordinary skill and
“a
knowledge,” such that Appellants “suffered damages . . . financially and
mentally,” because Smith’s professional negligence resulted in a PFA order
that deprived Appellants from seeing their grandchildren. See generally
Complaint, 12/22/17.
In response, the Honorable Kathrynann W. Durham, sitting as the trial
court, has authored a comprehensive opinion which accurately and specifically
explains why Appellants’ issues and arguments lack merit. For example,
Judge Durham states:
J-A08025-21
[Appellants’] argument that [Smith]’s alleged bad advice to
agree to the stipulated PFA Order denied them the right to visit
with the children is flawed because the Stipulated PFA Order did
not control the who, what, when, where and how of the visitations,
but rather, the custody proceedings would answer these
questions.
Trial Court Opinion, 6/17/20, at 24. Judge Durham also observes that much
of Appellants’ argument is based on their “effort to re-litigate what has already
been litigated,” and is therefore precluded by res judicata and collateral
estoppel. See id. at 19-23, 26.
Upon review, we discern no abuse of discretion or trial court error.
Further, we find the trial court’s opinion properly addresses and resolves
Appellants’ issues, such that further commentary by this Court would be
redundant. We therefore adopt the trial court’s June 17, 2020 opinion as our
own in disposing of this appeal, and direct the parties to attach a copy of the
opinion to any relevant future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 5/10/21
Circulated 04/15/2021 03:59 PM
IN THE COURT OF COMMON PLEAS,
DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION ~ LAW
JULIO. DOMINGUEZ, OLGA CIFUENTES : No. 18-3236
and MARINA DOMINGUEZ CIFUENTES : 635 EDA 2020
Ve
G, GUY SMITH, ESQUIRE
Joseph F, Rizzo, Esquire — Attorney for Appellants /Piaintiffs
Eugene J. McGinnis, Jr., Esquire — Attorney for Appellee/Defendant
DURHAM, J. DATE; 06/17/20
OPINION
Appellants/ Plaintiffs Julio Dominguez, Olga Cifiientes, and Marina
Dominguez Cifuentes (Plaintiffs) seek review of the following two Orders entered
on November 12, 2019 wherein the Trial Court denied Plaintiffs’ Motion to
Amend the Complaint and granted Defendant’s Motion for Judgment on the
Pleadings, respectively. On Decembér 11, 2019, Plaintiffs filed a Notice of
Appeal. On December 18, 2019, the Trial Court, pursuant to. Pa. R.A.P.
1925(b), ordered Plaintiffs to file a Concise Statement. of Matters Comiplained of
on Appeal. On January 7, 2020, Plaintiffs filed the aforemenitioned Statement,
Factual and Procedural History
‘This matter arises out a legal malpractice action filed by Plaintiffs against
Appellee /Defendant G. Guy Smith, Esquire. In their First Amended Complaint,
1
JULIO DOMINGUEZ, : Inthe COURT of COMMON PLEAS
OLGA CIFUENTES : of DELAWARE COUNTY
and | ; PENNSYLVANIA
MARINA DOMINGUEZ CIFUENTES : | .
Plaintiffs : CIVIL ACTION
Vs ,
G. GUY SMITH, ESQUIRE : NO. 2028-03236
Defendant 3
CA , ORDER .
And now, this/ ~~ __dayof_“_ Ai #7 rt dr B19, pon consideration of
the Motion of Deferidant, G. Guy Smith, Esquire for Judgment-on the Ploadings, it is hereby
ORDERED and DECREED that the Motion is GRANTED. This action is hereby DISMISSED
with prejudice,
BY THE COURT:
FILED
14-12-2018 03:26 Pot
“OFFICE OF JUDICIAL SUPPORT
DELAWARE COUNTY, Fa
Plaintiffs alleged that they hired Defendant to represent them and provided
negligent advice to them regarding their stipulation te a Protection from Abuse
Order (PFA), and therefore, they were damaged because they could not see the
children of Marina Dominguez Cifuentes (Mother).. The PFA Actions are: T.K. v.
M.D.C., No. 15-80484 and T7.K, v. J.D. and O.C,, Case Numbers 2015-80483
and. 2015-80485.
In Case Number 15-80484, the PFA Order arose out of the custody and:
divorce proceedings in the Delaware County Court of Common Pleas between
Mother and Thomas Karl (Father), father of their two minor children. See
Compl, The other 2 PFA Actions are against Julio Dominquez and Olga
Cifuentes who are the. Maternal Grandparents of the children. Id, The
custody and divorce proceedings remain ongoing. See Def. Mot. for Judgment
on the Pleadings. There have been related proceedings in the Court of
Common Pleas of Philadelphia County and the Federal Court System. Id.
As to the PFA Order against Mother, the facts are as follows: Qn April 14,
2015, Father filed a Petition for Protection from Abuse against Mother
requesting a PFA Order on behalf of himself and the two minor children. See.
Def. Mot. for Judgment on the Pleadings, Ex. 3. On April 14, 2015, the
Honorable Barry C. Dozor issued a Temporary PFA Order which granted an
order for protection on behalf of Father and the children, and listed the matter
for a hearing as to the request for a Final Protection from Abuse Order. Id.
On October 23,2015, the parties entered into the aforementioned
Stipulation under the Protection from Abuse Act and Uniform Prevention of
Child Abduction Act (Stipulated PFA Order), which was-éentered as an Order of
Court by the Honorable Linda A. Cartisano on November 6, 2015, See Def, Mot.
for Judgment on the Pleadings, Ex.3. Paragraph 7 of the Stipulated PFA
Order contained the following relevant provisions:
7. For three (3) years from the date of this Court’s Order issued pursuant
to this Stipulation:
a. [Mother] will:stay away from [Father] and the parties’ children
.. except for any visitation or custody with Children as ordered
by the Court in existence éntered prior to this date or hereafter.
b. [Mother] shall not abuse, harass, stalk or threaten [Father] or
any of the Children.
¢. [Mother] shall not contact [Father] (except for emergency
concerning the children and only by text or email) or any of the
Children by any means directly or indirectly except.as permitted
by Court Order entered prior to this date or hereafter.
d. [Mother] is prohibited from any contact with [Father], the
Children, or any other person protected under this agreement,
at any location, including but not limited to-any contact at
{Father’s] or other protected parties’ residence, school,
business, or place of employment. [Mother] is specifically
ordered to stay away from the following locations for the
duration of this order:
1.. 56 Sleepy Hollow Drive, Newtown Square, Pennsylvania,
until (Father] vacates the residence.
2. 2400 North Providence Road, Media, Pennsylvania.
3. 211 Commerce Court, Suite 104, Pottstown,
Pennsylvania,
Id. ‘Paragraph 5{a) of the Stipulated PFA Order stated that Maternal
Grandparents had no greater rights of visitation than Mother, See Def. Mot. for
Judgment on the Pleadings, Ex. 4.
The facts regarding the Child Custody proceedings are as follows: Under
Case Number 2015-003199, the Custody action was initiated:in the Delaware
County Court of Common Pleas, prior to the PFA matter on. April 9, 2015,
through the filing of an Emergency Petition for Custody and Emergency Petition
for Return of Passports. See Def. Mot. for Jiidgment on the Pleadings, Ex. 3.
On April.24, 2015, Judge Cartisano issued. the following Order on the
Emergency Custody Petition wherein the Court. ordered as-follows:
1. Primary physical custody of the minor children ... is awarded to [Father}
until-further Order of Court.
2. Joint legal custody with respect to medical care and decisions is awarded
to [Father] and [Mother].
3, Sole legal custody for all else awarded to [Father] until further Order of
this Court:
4, Supervised partial physical custody of the minor children, ..., is awarded
to [Mother,]} as follows: two sessions a week for one hour each,
supervised. by security personnel who may carry concealed arms and
observed by an independent Spanish/English. speaker Interpreter; the
said sessions to be in a classroom at St, Mary Magdalene Church in
Media, Pennsylvania Mondays. at 5:30p.m. to 6:30p.m. and Thursdays at
-4:15p.m.to 5:15p.m,; costs to be borne by [Father;] no other persons are
to be present at the sessions; and [Mother’s] parents, Olga Cifuentes and
Julio Cesar Dominguez are not to be on the grounds of the church
during these sessions.
Id.
‘While the November 6, 2015 Stipulated:PFA Order was in effect, the
folowing events occurred. On June 5, 2017, Father-appeared at-St. Mary
Magdelene Church to pick up the children from their scheduled supervised
visit with Mother. See Def, Mot. for Judgment on the Pleadings, Ex. 3. The
Church's pastor invited Father and the children to attend a “healing mass” in
the chapel. Id. Father and the children entered the chapel and sat in a pew
four rows from the front.. Jd, During the service, Mother appeared and entered
the chapel. Id. According to Father, the children became frightened and
physically grabbed Father. Id. Father testified that Mother-looked at him,
smiled, and made a “hand gesture,” Id,
Father further testified that seeirig Mother outside the presence of
security frightened the children “because of .., multiple incidents, kidnappings,
abuse that have eccurred....” See Def. Mot. for Judgment on the Pleadings, Ex.
3. The testimony of the security officer and the Spanish/English translator
corroborated Father's testimony regarding the aforementioned events. Id.
On June.7, 2017, the Commonwealth of Pennsylvania filed a Complaint
for Indirect Criminal Contempt against Mother due to an alleged violation of
the Stipulated PFA Order. See Def, Mot. for Judgment on the Pleadings, Ex. 3.
Following several hearings, the Honorable Dominic. F, Pileggi entered an Order
finding Mother. guilty of Indirect Criminal Contempt at Case Number 2015-
08084, which this Court affirmed on appeal on May 23, 2019. Id,
‘The facts as to the PFA Actions against Maternal Grandparents are as
follows:. Despite November 6, 2015 Stipulated PFA Order, Grandparents
attended Mother’s scheduled visitation period with the Children on December
28, 2015 whereupon the security guard called the police. See Def. Mot. for
Judgment on the Pleadings, Ex: 4. Following a hearing onthe indirect criminal
contempt action filed against Maternal Grandparents, Judge Cartisano found
the provisions of the Stipulated PFA Order to be ambiguous and dismissed the
contempt charges against Maternal Grandparents on February 11, 2016. Id,
On May 2, 2016, Maternal Grandparents filed a Motion to Clarify or
Dismiss the PFA Order. See Def. Mot. for Judgment on the Pleadings, Ex. 4.
After a hearing, Judge Cartisano-struck the provision declaring that
Grandparents had no greater-rights than Mother. Id, Despite Judge
Cartisano instructing the parties to send in an: Order reflecting the change, no
one did, Id. OnJ anuary 11, 2017, Judge Cartisano subsequently denied
Maternal Grandparents’ Motion for Reconsideration of the aforementioned Oral
Decision filed on December 27, 2016. Id. On September 11, 2017, Judge
Cartisano memorialized the Oral Decision as a written Order striking the “no
greater rights” provision arid declining to make any other alterations to the
stipulated Order. Id. Maternal Grandparents filed a Notice of Appeal.of the
September 11, 2017 Order in Case Numbers 2015-80483 and 2015-80485,
which this Court affirmed on appeal on May 23, 2019, Id.
The Complaint in the matter sub judice was initially filed on December
22, 2017 in the Philadelphia County Court of Common Pleas. ‘The matter was.
‘subsequently transferred to the Delaware County Court of Common Pleas on
March 13, 2018. The Honorable-G. Michael Green was initially assigned to this
matter,
On September 9, 2019, Defendant filéd a Motion for J udgment on the
Pleadings, to which Plaintiffs answered. On September 19, 2019, Plaintiffs.
filed a Petition to Amend the Complaint, to which Defendant responded. As to
the Motion for Judgment on-the Pleadings, the Trial Court granted judgment.on.
the pleadings on November 12, 2019. As to the Petition to Amend the
Complaint, the. Trial Court denied the Petition on November 12, 2019..
Plaintiffs filed a Motion for Reconsideration for the November 12, 2019 Orders,
which the Trial Court denied on December 10, 2019, Plaintiffs’ timely appeal
followed.
Issues Asserted on Appeal
Plaintiffs assert the following issues on appeal:
This case involves miscondict and conspiracy of counsel to deprive his
clients of their rights to enjoy the minority of their grandchildren. The
matter has been extensively litigated and inchudes recently dismissed
RICO: action against Plaintiffs which inchided as harm their mere
existence in the US. Plaintiffs brought claims of Breach of Contract, Legal
Malpractice and Fraud.
Defendant filed a Motion for Judgement (sic) on the Pleadings based
exclusively on Superior Court Dicta in a related action.
For judgement (sic).on the Pleadings to be granted there can be no.
‘Genuine Issue of Material Fact. Aubrey v. Precision Airmotive LLC, 2010
PA Super 169, 7 A.3d 256 (2010).
‘This appeal followsf.]
ERRORS OF THIS COURT
1. THE. TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED:
AN ERROR OF LAW WHEN IT DETERMINED THERE WAS NO ISSUE
OF MATERIAL FACT WHEN:
a. PLAINTIFF MARINA DOMINGUEZ CIFUENTES CLAIMS THAT SHE
WAS. A CLIENT AND DEFENDANT G. GUY SMITH CLAIMED THAT
SHE WAS NOT A CLIENT;
b. IN THE MIDST OF THE UNDERLYING ACTION|,] THE.
DEFENDANT ACCEPTED $10,000 FROM THE OPPOSITION AND.
STOPPED WORKING FOR PLAINTIFFS;
ce, DEFENDANT. RECOMMENED TO PLAINTIFFS A STIPULATION
THAT NEITHER HE NOR THE COURT UNDERSTOOD,
2. THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED
AN ERROR OF LAW WHEN IT PERMITTED DEFENDANT TO AMEND
HIS ANSWER AND DENIED PLAINTIFFS’ MOTION TO AMEND THEIR
COMPLAINT FILED ON SEPTEMBER 9, 2019 WITHOUT
EXPLANATION.
. THE. TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED:
AN ERROR OF LAW WHEN IT PERMITTED DEFENDANT TO. AMEND
HIS RESPONSE AND CHOSE NOT TO RULE ON PLAINTIFF'S
MOTION TO AMEND THEIR COMPLAINT EVEN THOUGHT IT STILL.
HAD JURISDICTION SINCE THE APPEAL HAS NOT BEEN
DOCKETED IN THE SUPERIOR COURT,
. THE TRIAL COURT ABUSED ITS: DISCRETION AND/OR COMMITTED
AN ERROR OF LAW WHEN IT DETERMINED THAT RES JUDICATA
APPLIED WHEN THE SAME PARTIES WERE NOT INVOLVED IN
BOTH MATTERS,
. THE TRIAL COURT ABUSED ITS DISCRETION AND {OR COMMITTED
AN ERROR OF LAW WHEN IT DETERMINED THAT COLLATERAL
ESTOPPEL WAS APPROPRIATE WHEN COLLATERAL ESTOPPEL:
a. REQUIRES THE SAME ISSUE AND THE ISSUES WERE.
DIFFERENT;
b. WAS BASED ON DICTA IN A SUPERIOR COURT DECISION ON
A DIFFERENT ISSUE AND THE SUPERIOR COURT MADE ITS.
OWN FACTUAL FINDINGS THAT WERE DIFFERENT THAN THE
LOWER COURT WHILE ALL THE EVIDENCE WAS NOT
BEFORE THE SUPERIOR COURT SINCE. THE ISSUES WERE
DIFFERENT.
. THE TRIAL COURT ABUSED ITS DISCRETION. AND/OR COMMITTED.
AN ERROR. OF LAW WHEN IT DETERMINED THAT THERE WAS NO
ISSUE OF MATERIAL FACT IN THE BREACH OF CONTRACT WHEN
THE COURT FAILED TO CONSIDER MATERIAL FACTS INCLUDING:
BUT NOT LIMITED TO THE FOLLOWING: |
a, WHEN THE COURT DECIDED SUA SPONTE TO DISMISS THE
PLAINTIFF'S COMPLAINT WITHOUT ANY ARGUMENT
PRESENTED BY: THE DEFENDANT STATING THERE WAS-NO
‘MATERIAL ISSUE OF FACT IN DISPUTE;.
b. DEFENDANT FAILED TO FILE A RESPONSE TO THE PFA;
e. DEFENDANT FAILED TO FILE A RESPONSE TO THE FEDERAL
COURT ACTION;
d. DEFENDANT FAILED TO FILE A MOTION FOR RULE 11
SANCTIONS. AFTER THE FEDERAL COURT STATED THE
ACTION WAS FRIVOLOUS;
e. DEFENDANT ACCEPTED $10,000 FROM THE OPPOSING
PARTY AND STARTED TO REPRESENT HIM;
f. DEFENDANT SENT A MISLEADING LETTER TO THE
PLAINTIFF'S RESULTING IN THEIR VIOLATING THE PFA;
g. DEFENDANT RECOMMENDED A STIPULATION THAT HAD
_ MULTIPLE PROBLEMS WITH IT, INCLUDING BUT NOT
LIMITED ‘TO THE PERIOD:OF PROTECTION; NO EVIDENCE TO
SUPPORT THE ENTERING OF THE STIPULATION; THE
‘STIPULATION DIDN'T SPECIFY WHAT A VIOLATION WAS; THE
STIPULATION CONTRADICTED THE CUSTODY ORDER; THE
STIPULATION WAS CONTRARY TO THE WISHES OF HIS:
CLIENTS; AND THE TRIAL COURT DETERMINED WAS
‘MISUNDERSTOOD BY HIS CLIENTS; THE STIPULATION
ALLOWED THE OPPOSING PARTY TO WEAPONIZE THE
‘STIPULATION],
h, DEFENDANT SENT A LETTER TO. THE PLAINTIFFS STATING
THEY COULD SEE THE GRANDCHILDREN;
i. DEFENDANT FAILED TO CREATE AN ESCROW ACCOUNT FOR
THE GRANDPARENTS; [and]
j. DEFENDANT'S] FAILURE TO CREATE AN ESCROW ACCOUNT
HAS DENIED PLAINTIFFS FUNDS THAT THEY ARE DUE
RESULTING IN ADDITIONAL LITIGATION;
7. THE TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITIED
AN ERROR OF LAW WHEN IT DETERMINED THAT THERE WAS NO
ISSUE OF MATERIAL FACT IN THE LEGAL MALPRACTICE WHEN
THE DEFENDANT:
a. RECOMMENDED THAT PLAINTIFFS STIPULATE TO A THREE.
YEAR PFA WHEN THE EVIDENCE WAS THAT FATHER MADE
UP THE ALLEGATIONS AGAINST PLAINTIFFS;
Le is important to pote that none-of the stipulation errors are negated by whether or not the plaintiffs understeod
the stipulation; the stipulation Itself was poorly drafted,
9
b. DID NOT FILE A MOTION TO STRIKE THE PFA WHEN THE
EVIDENCE WAS THAT FATHER MADE UP THE ALLEGATIONS.
AGAINST PLAINTIFFS;
¢c. DID NOT FILE A-MOTION TO DISMISS THE PFA AFTER SEVEN
MONTHS;
d. TOLD THE PLAINTIFFS THAT THEY COULD SEE THEIR
GRANDCHILDREN;
e.. DEFENDANT RECOMMENDED A STIPULATION THAT DIDN’T
SPECIFY WHAT A VIOLATION WAS FOR PURPOSES OF
RELEASING FUNDS;
f; DEFENDANT RECOMMENDED A STIPULATION THAT
CONTRADICTED. THE CUSTODY ORDER;
g. DEFENDANT RECOMMENDED A STIPULATION THAT WAS
CONTRARY TO THE WISHES OF HIS:CLIENTS;
h, DEFENDANT RECOMMENDED A STIPULATION THAT WAS
DETERMINED AS A MATTER. OF LAW TO NOT BE CLEAR,
PRECISE AND SPECIFIC[;}
i, DEFENDANT RECOMMENDED A STIPULATION THAT
ALLOWED THE OPPOSING PARTY TO WEAPONIZE THE
STIPULATION;
j. DID NOT PROPERLY COLLOQUY THE PLAINTIFFS TO SHOW
THAT THEY KNOWINGLY{,] VOLUNTARILY(,] AND
INTELLIGENTLY ENTERED THE STIPULATION:
k. SUPPORTED HIS MISREPRESENTATION TO THE PLAINTIFFS
WITH A LETTER WHEREIN HE STATED THEY COULD SEE
THE GRANDCHILDREN WHENEVER THEY WERE WITH THE
MOTHER; AND]
1, TOLD THE PLAINTIFFS IN DECEMBER 2015 THAT THE
GRANDPARENTS :COULD GO TO VISITATION TO. WITH
. MOTHER.
8. THE. TRIAL COURT ABUSED ITS DISCRETION AND/OR COMMITTED
AN ERROR OF LAW WHEN IT DETERMINED THAT THERE WAS NO
ISSUE OF MATERIAL FACT IN FRAUD WHEN THE DEFENDANT:
10.
a. WAS COMPENSATED FOR CONSPIRING AGAINST PLAINTIFFS;
b. MISAPPROPRIATED FUNDS THAT WERE MEANT FOR THE
ESCROW ACCOUNT;
c. COMMITTED PERJURY ON THE ‘STAND AGAINST TO KEEP:
FROM HAVING NEGATIVE EVIDENCE.AGAINST HIM AND TO
SUPPORT FATHER;
d, LIED TO THE PLAINTIFFS BY TELLING THEM THEY WOULD
BE ABLE TO ENJOY VISITATION WITH THE
GRANDCHILDREN; JAND]
e. RECOMMENDED PLAINTIFFS STIPULATE TO A THREE YEAR
PFA WHEN THE EVIDENCE WAS-THAT FATHER MADE UP
THE ALLEGATIONS AGAINST PLAINTIFFS.
9, THE TRIAL COURT ABUSED ITS DISCRETION AND /OR COMMITTED
AN ERROR OF LAW WHEN IT DETERMINED THAT THERE WAS NO
ISSUE OF MATERIAL. FACT IN FRAUD WHEN THE DEFENDANT:2
Discussion
The Trial Court properly denied Plaintiffs’ Motion to Amend the
Complaint.
It is settled that the trial court “enjoys ‘broad-discretion’ to grant or deny
a petition to amend” pleadings, Therefore, the Appellate Court.uses an abuse
of discretion standard in reviéwing a trial court’s order granting or denying a
petition to amend. Thom v. CDM Auto Sales, 221 A.3d 681, 684-85 (2019).
Rule 1033 provides:
(a) A party, either by filed consent of the adverse party or by leave of
court, may at any time change the form of action, add a person as a
The ‘amended pleading may aver transactions. or occurrences which.
-have. happened before or after the filing of the original pleading, even
though they give rise. to a new cause.of action or defense. An
2 Plaintiffs’ Concise Statement of Matters Complained of on Appeal abruptly ended, and therefore, the Trial Court
does not know what the remainder of the issue would further state as to Issue Number 9..
1]
amendment may be made.to conform the pleading to. the evidence
offered or admitted.
Pa.R.C.P. No. 1033{a). Thus, “[pJleadings may’ be amended at the-discretion of
the trial court after pleadings are closed, while a motion for: judgment:on the.
pleadings is pending, at trial, after judgment, or after‘an award has been made
and an appeal taken therefrom.” Thom, supra,
In-their Motion for Permission to Amend the Complaint, Plaintiffs alleged
that at a May 22, 2019 hearing in another matter related to Maternal
Grandfather, Defendant committed perjury regarding what he told Plaintiffs.
See Mot. for Permission to Amend the Compl. Plaintiffs ‘alleged that. Defendant
is actively working with Father against Plaintiffs in this action and other
actions. Jd. Based.on these alleged facts, Plaintiffs sought to amend the
Complaint to include Intentional Infliction of Emotional Distress because such.
conduct constitutes malicious ‘behavior, Id. In addition, Plaintiffs sought to
amend the Complaint-as follows: (1} to address new matters raised in “a
Superior Court Opinion” and (2) to clarify other issues. of malpractice allegedly
revealed during discovery. id, Plaintiffs averred that they attached an expert
report, Exhibit B, to their Motion. Jd. However, no such expert report was.
attached'to the Motion. Id.
In response; Defendant initially argued that. Plaintiffs failed to attach the
proposed Complaint. and the alleged Exhibit B, an expert’s report to their.
Motion. ‘See Resp. to Mot. for Permission to Amend the Compl. Upon review,.
Plaintiffs failed to file, with specificity, their Motion te Amend the Complaint.
42
Plaintiffs’ Motion did not:inchide the proposed Amended Complaint, Plaintifis
aver that he-attached an‘expert report, but failed to include said Report.
As to the merits of Plaintiffs’ Motion, Defendant argued that Defendant
did not.comrit perjury and that even if it were proven to be untrue,
Defendant’s testimony, at the hearing in question, was protected by judicial
privilege and the unspecified amendment regarding the Superior Court opinion
and“other issues, of malpractice” were not specific to permit amendment. Id,
Defendant further argued that Plaintiffs failed to identify Defendant’s false
statements, Id.
As to judicial immunity in Pennsylvania, “[wlhen alleged libelous or
defamatory matters,.or statements,.or allegations and averments.in pleadings
or at thé trial-or argument of a case are pertinent,. relevant and material to any
issue in a civil suit, there is no civil liability for making any of them.” Post v.
Mendel, 510 Pa. 213, 220, 507 A.2d.351, 355 (1986). Pursuant to the judicial
privilege, a person is entitled to absolute immunity for “communications which.
are issued. in the regular course of ‘judicial proceedings and which are pertinent
and material to the redress or relief sought.” Post, supra at 355 (emphasis in.
original); Bochetto v. Gibson, 580 Pa. 245, 251, 860 A.2d 67, 71 (2004). This
privilege is based on. the “public policy which permits all suiters, however bold
and wicked, however virtuous and timid, to secure access to the courts of
justice to present whatever claims, true ot false, real or fictitious, they seek to
adjudicate.” Id,
13
The Trial Court agreed that Defendant has immunity against any claims,
ineluding a claim for Intentional Infliction of Emotional Distress, based upon
any and all alleged statements, whatever those statements may be, made by
Defendant while testifying at thé May 9 hearing. Plaintiffs’ allegations of
perjury in a hearing “related to another matter related to the herein:
complaint...with regard to.what he told the plaintiffs” are vague. and Plaintiffs’
Counsel failed to attach the proposed pleading te the Motion, Furthermore,
nothing precluded Plaintiffs’ Counsel from referring to or attaching the Notes of
Testimony from the. May 22, 2019 hearing. In light of the judicial immunity
protecting Defendant from being subject to the aforementioned claim, the Trial
Court properly denied. the amendment of the Coniplaint,
On November 17, 2019, Plaintiffs filed a Motion for Reconsideration of
the November 12, 2019. Order denying the initial Motion to Amend the
Complaint. The Trial Court denied.the Motion for Reconsideration on
December 10,2019, Plaintiffs. re-iterated the same arguments throughout the
filings regarding the desire to amend its Complaint.
However, the Trial Court determined that the arguments lacked merit.
dueé to the vagueness of the Motion. Plaintiffs’ Motion is so vague that the Trial
Court‘is unclear as to which issues of malpractice that he is referencing. This.
would permit the Trial Court to speculate as to. the merits of Plaintiffs’
proposed Amendment:
The fact that the Trial Court allowed Defendant to:amend his Answer and
New Matter and denied Plaintiffs’ request to do so is completely irrelevant to
4
the determination of whether Plaintiffs should be allowed to amend the
Complaint. The Superior Court Opinion that both parties wanted to include in.
their proposed amendments of the pleadings was issued on May. 23, 2019.
Defendant’s Motion for Leave to Amend his New Matter was timely filed on.
June 10, 2019. Defendant’s Motion for Leave to Amend his New Matter clearly
articulated the basis for the Motion. Defendant, in his Motion, averred the
pertinent facts at issue; provided a detailed Memorandum of Law; and attached
the two Superior Court Opinions he wanted to refer to in his Amended New
Matter and the proposed Amended New Matter. Plaintiffs’ Motion to Amend
‘was not filed until September. 19* which is ten days. after Defendant filed his.
Motion for Judgment on the Pleadings and more than four months after the
issuance of the Superior Court’s Opinion. Again, Plaintiffs’ Motion is so vague
that it would require the Trial Court to.guess what allegations of malpractice
are. being raised.
Both decisions were based upon the appropriate. law and the applicability
of such law to the facts presented. The Trial Court allowed Defendant to.
amend his New:Matter because he wanted to refer to and discuss this Court’s
May 23, 2019 Opinion in T.K.v. 5D, and 0,C. See Def. Mot. for Leave to
Amend His New Matter; Ex. 3. In the May 23, 2019 Opinion, this Court:
conchided that Maternal Grandparents were aware that their rights were not to
be. adjudicated in the PFA proceedings, but in separate custody proceedings.
td. Defendant further argued that this Court’s Opinion established that.
15
Maternal Grandparents understood the scope and. extent of the stipulated PFA.
Order. See.Def. Mot. for Leave to Amend His New Matter.
Upon review of the Motion for Leave to Amend His New Matter, the Trial
‘Court conchided that Defendant timely sought to amend his New Matter to
refer to this Court’s May 23, 2019 Opinion to establish the additional defenses
of Res Judicata and/or Collateral Estoppel against Plaintiffs’ attempt to assert.
facts that have already been adjudicated in the. prior PFA and Custody
proceedings as set forth in the aforementioned Opinion, Thus, the Trial Court
properly exercised its discretion, in accordance with Pa, R.C.P. 1033, by
allowing Defendant to amend his New Matter to raise such defenses.
Plaintiffs argue that the Trial Court was in error because it did not rule
on a subsequent Motion to Amend the Complaint filed on December 2, 2019
even though the Appeal had not been docketed with this Court, Once the Trial
Court received the Notice of Appeal filed on.December 11, 20 19, ‘it could not
rule.on any pending Motions based upon lack of jurisdiction until the Appeal
was decided.
On or about February 25, 2020, the Trial Court became aware from the
Delaware, County Office of Judicial Support that the Appeal had not been
docketed-with this Court. On February 28, 2020, this Court docketed the
Appeal. The Trial Court assumed that when Plaintiffs filed. the Notice of
Appeal, the Office of Judicial Support performed its duty to notify this Court of
the Appeal. Had the Trial Court.known that the Office of Judicial Support had
not docketed the Appeal, it could have and would have decided the December.
16
2, 2019 Motion to Amend the Complaint.
‘The Trial Court properly granted Defendant’s Motion for Judgment on the
Pleadings. | |
As to a Motion for Judgment on the Pleadings, the Appellate Court’s
Standard of review is as follows:
Entry of judgment on the pleadings is permitted under Pennsylvania
Rule of Civil Procedure 1034, which provides that “after the pleadings are
closed, but within such time as not to unreasonably delay trial, any party
may move: for judgment on the pleadings.”
Pa.R.C.P. 1034(a); Coleman v. Duane. Morris, LLP, 58 A.3d 833, 836-37 (2012).
A motion for judgment on the pleadings.is similar to a demurrer. It may be
entered when. there are no disputed issues of fact and the moving party is
entitled to judgment as a matter of law: Coleman, supra.
Appellate review of an order granting a motion for judgment on the
pleadings is plenary; Coleman, ‘supra. The appellate court will apply the same
standard employed by the trial court. Jd. A trial court must confine its
consideration to the pleadings and relevant documents. Id. The court must
accept.as true all well pleaded statements of fact, admissions, and any
documents properly attached to the pleadings presented by the party against
whom the motion is filed, considering only those facts which were specifically
admitted. Id. The Appellate Courts will affirm the grant:of such a motion only
when the moving party's right to succeed is certain and the case is so free from
doubt that the trial would clearly be a fruitless exercise. Id.
Before addressing the merits of Plaintiffs’ allegations of errors as to the
Motion for Judgment on the Pleadings, the Trial Court will address the
17
procedural allegations that it, sua sponte, decided Defendant’s Motion for
Judgment on the Pleadings without having Oral Argument. Pa. R.C.P. 1034{b)
provides that “the court shall enter such judgment or order as shall be proper
on the pleadings.” In this instance, the Trial Court reviewed the following prior
to making its ruling: Defendant’s Motion for Judgment on the Pleadings,
Plaintiffs’ Response to the Motion, and the pleadings.
Based upon its review of the aforementioned documents, the Trial Court
exercised its discretion and determined that Oral Argument was not necessary.
The decision to net have Oral Argument on.a Motion or Petition.is not
determining an issue sua sponte: Sua sponte means “ofits own accord.” That
is the. opposite of what occurred in this matter. Defendant filed a Motion.
Plaintiffs responded to that Motion. Upon consideration of the Motion,
Response and the pleadings filed in this matter, the Trial Court ruled
appropriately. Therefore, this issue is completely without merit.
In his Motion for Judgment on the Pleadings, Defendant argued that the
decisions of this Court issued on May 33,2019, T.aiK. v, M.D.C. No 3321 EDA
2017 and T-K. v. ED. and O:C., No. 3283 EDA 2017, precluded claiiris made by
Maternal Grandparents in this matter. See Def. Mot. for Judgment. on the
Pleadings, Ex. 3-4. In Talk. v. M.D.C., Mother appealed from the
determination of indirect criminal contempt relating to the visitation with the
children. In T.K. v. J.D. and O. C., Maternal Grandparents appealed the Order
modifying the stipulated PFA Order. Defendant argued that this Court’s
Opinions conchided that Maternal Grandparents were aware that their rights
18.
were not to be adjudicated in the PFA proceedings, but in the separate custody
proceedings. See Def, Mot; for Judgment-on the Pleadings, Ex. 3-4.
Based upon this. Court’s determinations in the aforementioned Opinions,
Defendant argued that judgment on the pleadings was appropriate. because the
doctrines of Res Judicata or Collateral Estoppel precluded Plaintiffs’ claims
against Defendant. Id. Defendant argued, in his Motion for Judgment on the
‘Pleadings, that the Amended Complaint did not allege that Defendant:
represented any of the Plaintiffs in the custody proceedings. See Def, Mot. for
Judgment on the Pleadings, Defendant further argued that in its prior
Opinions, this Court determined that the visitation with the children was with
Mother only and that no other persons were to be present, including.Maternal
Grandparents. Id, at Ex. 4.
In his Motion. for Judgment on the Pleadings, Defendant argued that
Maternal Grandparents knew the scope and extent of the Custody order as
they had been previously warned that they were not to be present at Mother's
visitations with the children, See Def, Mot. for Judgment on the Pleadings.
Defendant further argued that the PFA Order did not determine Plaintiffs’
visitation rights. id.
In response, Plaintiffs argued that Defendant’s Motion should be denied
for the following reasons: (1) res judicata did not apply because the parties are
not the same as-in this action; (2) collateral estoppel did not apply because the
issues are not the same as in this action and have not been fully litigated; (3)
Defendant committed further acts of malpractice and additional torts since the.
a9
filing the Complaint; and (4) this Court improperly changed the lower court's
findings of fact without determining whether the trial court abused its.
discretion. See. Pl, Resp. to Def. Mot..for Judgment on the Pleadings,
“Technical res judicata (claim preclusion) and collateral estoppel [issue
preclusion) are ‘related, yet distinct’ componenits of the doctrine known as res
judicata.” Wilmington Trust, N.A. v. Unknown Heirs, 219 A.3a 1173, 1179 (Pa.
Super. 2019}. “[T}]he decision to allow or to deny a prior judicial determination
to collaterally bar. relitigation of an issue in a subsequent action historically
has-been treated as a legal issue.” Id,
Res judicata is a doctrine that operates to foreclose repetitious litigation
by barring parties from re-litigating a matter that was previously litigated or
could have been litigated. The doctrine only applies where four common
elements éxist:
(1} identity of issues; (2) identity of causes of action; (3) identity of
persons and partiés to the action; arid (4) identity of the quality or
capacity of the parties. suing or sued. .
Wilmington Trust, supra, Under the doctrine of res judicata, a judgment on the
merits: if-a prior suit barsa second suit on the same cause-of’action or one
that could have been brought in the prior action. Jd.
The related doctriné of collateral estoppel or issue. preclusion applies iff
(1) the issue’ decided in ‘the prior case is identical to the one presented in
the later case; (2) there was a final judgment on the merits; (3) the party
against whom the plea is asserted was a party or in privity with a party
in the prior:case; (4) the party or person privy to the party against whom
the doctrine is asserted had a full and fair opportunity to litigate the
issue in the prior proceeding; and (5) the determination in the prior
proceeding was essential to the judgment.
20
Wilmington Trust, supra. As distinguished from res judicata, which bars
subsequent claims that could have been litigated in the prior proceeding, but
which were not, collateral estoppel only bars. litigation of issues that were.
actually litigated in the prior action. Id.
“The doctrine-of collateral. estoppel is. a broader concept than res
judicata. It operates to prevent a question of law or an issue of fact which has
once been litigated and adjudicated finally in a. court of competent jurisdiction
from being relitigated in a subs equent suit.” Day v, Volkswagenwerk.
Aktiengesellschaft, 464 A.2d 1313, 1318 (Pa. Super. 1983). Unlike res judicata,
there is no requirement that there be an identity of parties between the two
actions to invoke the bar, Jd. at. 1319, “Parties toa subsequent action need not
be the same as those in the prior suit in order to. raise the question of collateral
estoppel. Collateral estoppel may be used as either ‘a. sword or.a’shield’ by a
stranger to'the. [prior] action, as long as the party against whom the defense is.
invoked is the same,” Id.
Upon review of the Record, the claims in Plaintiffs’ First Amended
Complaint contain allegations: that-the Court of Common Pleas of Delaware.
County. and this Court in the PFA and Custody Actions have. already been
determined. In the First Amended Complaint, Plaintiffs averred as. follows:.
4, Grandparent Plaintiffs retained Defendant to defend them from PFA
charges that were filed against them and their daughter by their
estranged son-in-law who wanted to keep them out of their
grandchildren’s life.
15. Plaintiffs were told that they would be able to see their grandchildren
21
under the terms of the PFA-when.their mother saw the:children.
16. Simultaneously, Mother stipulated to her PFA in part because her
parents were going to be able to see her children with her.
See Def. Mot. for Judgment on the Pleadings, Ex. 1, There is nothing in the
Amended Complaint alleging that Defendant was a party in the Divorce or
Custody actions, Defendant represented Maternal Grandparents in the PFA
Action and did not represent Plaintiffs. in the Custody action.
Regarding Maternal Grandparents’ alleged denial of due process as to the:
modification of the negotiated PFA stipulation, this Court, in its Opinion in TLK.
v. J.D. and 0.C., stated as follows:
[T]he over-arching claim to visitation rights advanced by Grandparents
in this appeal rests on a demonstrably false premise. The essence of
Grandparents’ argument is that they only entered.into a.stipulation as a
compromise to-obtain visitation rights to see their grandchildren...
(citations omitted), They maintain that once they complained that the
stipulation was. ambiguous, and the trial court agréed-with them
(incidentally saving them from the penalties for contempt); the court
deleted the stipulated language they had relied on in the first place.
Therefore; they claim, the court improperly denied them both the
visitation rights that they had sought to achieve in the stipulation, and
the opportunity for a new hearing oni the stiptlation.
The record belies their claim. To the contrary, the stipulated PFA order
amounted to a stay-away provision, to the effect-that Grandparents
would stay away from their grandchildren while they were with their _
Father. In addition, the Grandparents explicitly agreed not to “bother,”
“harass,” or “stalk” Father, or “steal [the Children] or take them to
Argentina, or ruri [Jaway some place: with them.
Importantly, it was expressly understood that visitation rights were ‘to be.
addressed in separate custody proceedings, not in the stipulated PFA
order. ... A Spanish interpreter explained the entire arrangement to
Grandparents in their native language. ... There is. no basis in the record
for the claim that. Grandparents did not understand what they were
agreeing to in settling the PFA order by stipulation.
See Def. Mot. for Judgment of the Pleadings, Ex. 4, pg. 9-10.
22
Regarding Mother’s Appeal of the finding of indirect criminal contempt,
this Court, in its Opinion in T.K, v, M.D: C., adopted Judge Pileggi’s Opinion as
finding Mother of being guilty of indirect criminal contempt. See Def. Mot. for
Judgment on the Pleadings, Ex. 3. As to Mother’s understanding the
requirements of the PFA Order, this Court adopted Judge Pileggi’s findings as
follows: (1) Mother was sufficiently conversant in English to understand the
terms:of the PFA Order: (2) Mother’s prior conduct after the entry of the PFA.
Order demonstrated her understanding of the Order; and (3) the security guard
and translator properly informed Mother that entering the Church would
violate the PFA Order. Id., p..7; See also Ex, 4. This Court adopted. Judge
Pilegei’s findings that the PFA Order did not govern the parties’ custody or
visitation rights and that these issues would be addressed in the Custody
Proceedings.. See Def. Mot. for Judgment on the Pleadings, Ex. 3,.p. 5; See also.
Ex, 4, p. 9-10.
Upon review of the pleadings and this Court’s Opinions, res judicata and
collateral estopped apply becauise (1) the issues of Custody in this matter have
not only been decided by the Opinions issued by Delaware County Court of
Common Pleas but as well as by this Court on two separate occasions and (2)
Defendant did not represent Plaintiffs in any custody proceedings, ‘When
Plaintiffs. agreed to the entry to the PFA Order, Maternal Grandparents received
only an opportunity io be awarded visitation with the Children in the
Custody Proceedings, #f the. trial court deemed it appropriate.
23
Plaintiffs’ argument that Defendant’s alleged bad advice to agree to the
stipulated. PFA Order denied them the right to visit with the children is flawed
because the Stipulated PFA Order did not control the who, what, where, when
and how of the visitations, but rather, the custody proceedings would answer.
these questions, This Court explained the aforementioned analysis, in TE, v.
J.D. and.O.C., when it stated:
This custody order is incorporated into the stipulated PFA order by way
of paragraph 7.a of the PFA order: “iGrandparents] will stay away from
[Father] and [the Children] except for any visitation or’custody with
Children as ordered by the Court in existence.entered prior to this date
or hereafter.
See Def: Mot. for Judgment.on the Pleadings, Ex, 4, n. 4. The custody
‘proceedings controlled, not the Stipulated PFA Order, Since Defendant was. not
Plaintiffs’ counsel in the Custody Proceedings, Defendant cannot be found
liable under the claims of legal malpractice, breach of contract, and fraud.
Therefore, the Trial Court properly granted Defendant's Motion for Judgment.
on the Pleadings as to Plaintiffs’ claims.
Plaintiffs raised the same issues several times in its Statement of Matters
Complained of on Appeal. As to the allegation that there is a factual dispute as
to whether Defendant represented Mother, this issue is of no moment becatise
whether Mother was his client is irrelevant because Defendant did not
represent any of Plaintiffs, including Mother, in the Custody: Proceedings.
Plaintiffs arguéd that Defendant's acceptance of $10,000 from Father
caused him to stop working on behalf of them. According to a letter dated
November 2, 2015 from Defendant to. Mother, Father would pay Mother’s
2a
outstanding legal fees in the amount of $10,000.00. See Pl. Resp. to Def. Mot:
for Judgment on the Pleadings, Ex. B: Pursuant to the Pennsylvania Divorce
Code, a trial court may award costs to be paid to'a party as set forth in 23 Pa.
C,S.A. Section 3323(e). “The court may award costs to the party in whose favor
the order or decree shall be entered or may order that each party shall pay
their own costs or may:order the costs be divided equitably as it shall appear
just and reasonable.” 23 Pa. C.S.A. § 3323{e).
However, counsel fees are not awarded to cither spouse automatically.
“Actual neéd must be.shown in order to justify an award.” Id. Counsel fees are
appropriate when necessary to put the parties “on a par” in defending their
rights or in allowing a dependent spouse to maintain er defend an action for
divorce. Johnson v. Johnson, 365 Pa. Super, 409, 415, 529 A.2d 1123, 1126
(1987), The payment of.attorney fees for an opposing spouse is an accepted
practice under the statute. Furthermore, the fact that Father paid ‘Mother’s
legal fees does not, in of itself, prove that Defendant stopped working for
Plaintiffs’ interests. To reach that conclusion, courts would no tonger order
one party to pay the fees of another party if there was any semblance of
impropriety wherein such a payment-would be interpreted as_a reason for that:
attorney receiving the finds to stop working on his or her clienit’s behalf.
Plaintiffs’ counsel made the following allegation in Footnote 10 of their
Petition to support their belief that Defendant stopped working for Plaintiffs:
“Throughout the course of this litigation, Smith has had access to documenits
that are not public record and could only have been provided to him by TK.”
95
Id. Plaintiffs fail-to identify and/or attach ‘any such documents to support
such aclaim. Thus, this issue is completely without. merit.
Plaintiffs argue that Defendant failed to establish an escrow account on
Maternal Grandparents’ behalf. As to this alleged failure, the First Amended
Complaint did not plead any facts as to the lack of the establishment. of an
escrow account and/or cite any authority that the failure to do so supported
the asserted claims.
In their effort to re-litigate what has already been litigated, Plaintiffs
repeatedly argued that. Defendant erred when he told. Maternal Grandparents:
that they could. see the children when they were with Mother and improperly
advised them: to enter into the Stipulated PFA Order. As previously stated,
Judge Pileggi and this Court, in two separate actions, determined that the:
Stipulated PFA Order did not control the issue of custedy, but rather, the
Custody Proceedings controlled. Again, Defendant did not represent ‘Plaintiffs
in the Custody Proceedings. Despite Plaintiffs’ vigorous protestations, this
Court; in TK. v. J.D. and O.C., already determined that Plaintiffs understood
and agreed to the Stipulated PFA Order in order to increase the likelihood that
they could obtain visitation with the children through the custody proceedings.
‘Therefore, all of the issues raised are without merit.
Plaintiffs made several allegations that Defendant. failed to do the
following actions in response to Father’s Protection from Abuse Petition: (1) file.
a Motion to Strike the PFA Petition because Father ymade up the allegations; (2)
file a Motion to. Dismiss the PFA Petition; and (3) file.a response to the PFA
26
Petition. Pa. R. Civ. P. 1901.6 provides as follows: “[t}he deféndant is not
required to file an answer or other responsive pleading to the petition or the
certified order, and averments not admitted shall be deemed denied.”
Therefore, Defendant was under no obligation to file a response to Father’s PFA
Petition. Recognizing that a pleading is not a motion, failure to file such a
motion is not required 1mder the Pennsylvania Rules. of Civil Procedure in
Protection from Abuse matters, and therefore, failure to do so does not support.
any of Plaintiffs’ claims,
The Pennsylvania Rules of Civil Procedure addresses the issue of
Custody once a final PFA Order is entered. Pa. R. Ciy, P, 1901.7(d) provides as
follows:
The custody provisions of a Protection from Abuse. order are temporary.
Either party may initiate-custody proceedings pursuant to the custody.
statute at 23 Pa, C.S, §5321 et seq. Any valid custody order entered
after the final Protection from Abuse order supersedeas the custody
provisions in paragraph 5 of the Protection from Abuse Order.
In this: matter, the Custody Order was incorporated into the Stipulated
PFA Order wherein Maternal Grandparents agreed to not stalk or harass
Father or steal and run away with the children and all parties agreed that the
PRA Order was subject to “any existing Custody Order.” See Def, Mot. for
Judgment on the Pleadings, Ex. 4 at 4, n. 4, 9-10. While Plaintiffs repeatedly
argue that they had the same rights as Mother to see the children under the
subsequently stricken “no greater rights” provision in the Stipulated PFA
Order, this Court discussed how that provision did not grant visitation to
Maternal Grandparents during the supervised visitation with Mother. Id. at 10.
27
The Grandparents currently are not allowed — they’re not present =
they’re not. allowed to be present at the supervised visitation and
this doés not change that. The best explanation of the now-deleted
language is provided by the trial court, who. observed, “No, but if, God
forbid, something happens to their daughter, they would have rights
under the law.to apply for grandparents’ rights.”
(emphasis in original) Jd, With or without the stricken “no. greater rights”
provision in-the Stipulated PFA. Order, the Record is clear that all parties knew,
understood, and agteed that Maternal Grandparents were not allowed to attend
Mother’s supervised visitation with the children. By agreeing to the Stipulated
PFA Order, Plaintiffs gained only an opportunity, not a guarantee, to receive
more visitation. with the children. Therefore, these numerous issues raised are
without merit.
As to Defendant’s. alleged actions in the Federal Court action, Plaintiffs.
alleged. in the First Amended Complaint that Father sought to have Maternal
Grandparents turn in their passports from Argentina. See Am. Compl.
‘Plaintiffs further alleged that Defendant erred in failing to file a response or a
Fed. R. Civ. P, 12(b)(6) Motion in response to the action. Id. Plaintiffs failed to
provide any facts that support what damage or prejudice, other than payment
of attorneys’ fees, they suffered as. a result of Defendant’s actions or lack
thereof. Id. In his Amended Answer, Defendant alleged that he successfully
represented Maternal Grandparents in. the Federal-Court action. See.Am.
Answer. The fact that Defendant did not file a response does not, in of itself,
prove that he failed to adequately represent Plaintiffs, breached the contract.
between the parties, or committed fraud,
28
Upon review of the pleadings, the Federal Court Action was resolved.
Defendant’s invoice, Plaintiffs’ Exhibit A to the Complaint, indicated that on
July 22, 2015, Judge Savage, in the Federal Court Action, issued.a decision.
See Compl., Ex..A. Plaintiffs’ Complaint is vague in its averments as to the
Federal Court Action, and therefore, the Trial Court is left te read what was
plead. In light of the pleadings, Plaintiffs failed to plead sufficient facts to
support their claims as to any deficiency regarding the Federal Court Action,
and.therefore, this issue is without merit,
Conclusion
For the aforementioned reasons, the Trial Court.respectfully requests
that its Decisions be AFFIRMED.
BY THE COURT:
fir, . £ A uf f.n.. & ,
“/ JATHRYNANN W. DURHAM, J.
29
FILED
06-17-2020 03:09.PM
OFPICE OF JUDICIAL, SUPPORT
DELAWARE COUNTY, PA