Opposition Brief — Robert J. Doyle, Petitioner v. Jacqueline M. Vigilante

No. 20-611

In the

Supreme Court of the United States

__________________

ROBERT J. DOYLE,

v.

Petitioner,

JACQUELINE M. VIGILANTE,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

__________________

BRIEF IN OPPOSITION

__________________

PATRICIA A. FECILE-MORELAND

Counsel of Record

MARKS O’NEILL O’BRIEN

DOHERTY AND KELLY

1617 John F. Kennedy Blvd.

One Penn Center, Suite 1010

Philadelphia, PA 19103

(215) 564-6688

pmoreland@moodklaw.com

Counsel for Respondent

December 4, 2020

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI. . . . . . 1

SUMMARY OF REASONS WHY THE PETITION

SHOULD BE DENIED. . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

COUNTERSTATEMENT OF THE CASE . . . . . . . . 3

REASONS FOR DENYING CERTIORARI . . . . . . . 9

A. Petitioner’s Claims were Addressed by the

Third Circuit . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Petitioner’s Conflict of Interest Malpractice

Claim is Waived. . . . . . . . . . . . . . . . . . . . . . . 15

C. Petitioner’s Constitutional Rights Were Not

Violated By The Third Circuit’s Ruling . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ii

TABLE OF AUTHORITIES

CASES

Belitskus v. Pizzingrilli,

343 F.3d 632 (3d Cir. 2003) . . . . . . . . . . . . . . . . 15

Blackledge v. Perry,

417 U.S. 21 (1974). . . . . . . . . . . . . . . . . . . . . . . . 19

Coleman v. Duane Morris, LLP,

58 A.3d 833, 2012 Pa. Super. LEXIS 4100 . . . . 14

Couden v. Duffy,

446 F.3d 483 (3d Cir. 2006) . . . . . . . . . . . . . 17, 18

DIRECTV, Inc. v. Seijas,

508 F.3d 123 (3d Cir. 2007) . . . . . . . . . . . . . . . . 15

Dougherty v. Pepper Hamilton LLP,

133 A.3d 792 (Pa. Super. 2016) . . . . . . . . . . . . . 13

Franklin v. Gwinett County,

503 U.S. 60 (1992). . . . . . . . . . . . . . . . . . . . . . . . 19

Gen. Refractories Co. v. First State Ins. Co.,

855 F.3d 152 (3d Cir. 2017) . . . . . . . . . . . . . . . . 16

Harrington v. Richter,

562 U.S. 86 (2011). . . . . . . . . . . . . . . . . . . . . 19, 20

Kituskie v. Corbman,

552 Pa. 275, 714 A.2d 1027 (Pa. 1998). . . . . . . . 13

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 43 S. Ct. 422, 67 L. Ed. 712,

1923 U.S. LEXIS 2571 (1923). . . . . . . . . . . . . . . . 1

iii

North Carolina v. Pearce,

395 U.S. 711 (1969). . . . . . . . . . . . . . . . . . . . . . . 19

Otis Elevator Co. v. George Washington Hotel Corp.,

27 F.3d 903 (3d Cir.1994) . . . . . . . . . . . . . . . . . . 18

Shell Petroleum, Inc. v. United States,

182 F.3d 212 (3d Cir. 1999) . . . . . . . . . . . 8, 15, 16

Spireas v. Comm’r of Internal Revenue,

886 F.3d 315 (3d Cir. 2018) . . . . . . . . . . . . . . . . 16

United States v. Joseph,

730 F.3d 336 (3d Cir. 2013) . . . . . . . . . . . . . . . . 16

RULES

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9, 10

1

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

SUMMARY OF REASONS WHY THE PETITION

SHOULD BE DENIED

The Petitioner does not assert any of the reasons

enumerated by Sup. Ct. R. 10 as required for cert. Nor

does the Petitioner assert any other compelling reasons

why this Court should review the Third Circuit’s nonprecedential decision which was based on Pennsylvania

common law and statutes of limitation. Contrary to

Petitioner’s assertion, the Third Court did address

Petitioner’s claim alleging that Respondent had

committed legal malpractice by covering up her alleged

negligence and continuing to charge him legal fees.

(Characterized by Petition before the Third Circuit as

a “conflict of interest” claim.) The issues which the

Petitioner asks this Court to review do not “involv[e]

principles the settlement of which is of importance to

the public as distinguished from that of the parties.”

Layne & Bowler Corp. v. Western Well Works, Inc., 261

U.S. 387, 393, 43 S. Ct. 422, 423, 67 L. Ed. 712, 714,

1923 U.S. LEXIS 2571, *9 (1923). In addition to the

fact that this Petition does not involve an issue of

importance to anyone other than Petitioner, it is

extremely doubtful that the issue in question was

preserved for appellate review by raising it before the

District Court.

INTRODUCTION

The central premise of the Petition is its assertion

that when Petitioner “appealed to the Third Circuit

squarely and unambiguously asking that the case

2

be remanded to address the unaddressed conflict

of interest claim, the Third Circuit inexplicably failed

to address his complained-of error.” Petition, page 2.

(Emphasis in original). This assertion is simply wrong.

The Third Circuit did address that claim, but its

disposition was not to Petitioner’s satisfaction. That

Court stated: “With the benefit of counsel, Doyle argues

on appeal that the District Court erred because its

opinion addressed only one of two malpractice claims

that he had raised. He maintains that the District

Court failed to address his allegation that Vigilante

committed malpractice by covering up for her alleged

error and continuing to litigate the case and charge

him legal fees. He further maintains that this claim is

not barred by the statute of limitations. We disagree

and will affirm because Doyle cannot show that he

suffered damages.” Doyle v. Vigilante, 803 Fed. Appx.

628, 629-630, 2020 U.S. App. LEXIS 14415, *4 (2020).

Not only has Petitioner ignored the Third Circuit’s

ruling, but he has also taken a legal malpractice claim,

premised solely on the application of state law and

statutes of limitations and contorted his arguments in

an attempt to implicate his access to the courts and

thus allege an abridgment of his Constitutional right to

due process. The record below demonstrates that

Petitioner had full and fair access to the courts and

that all his claims were heard. Respondent’s Motion for

Summary Judgment seeking dismissal of all claims

was granted by the District Court. On appeal, for the

first time, Petitioner raises the theory of “conflict of

interest,” separate and apart from the malpractice

claim. As Respondent argued in her brief on appeal,

and as noted by the Third Circuit, Petitioner waived

3

his alleged conflict of interest claim because he did not

raise it before the District Court. However, even if it

was not waived, the claim was not viable because

Petitioner was not able to demonstrate that he could

have recovered damages against the union, UAW Local

1069 for the underlying case. Accordingly, there are no

due process or other matters rising to the level of

national importance that would give this Court reason

to grant certiorari.

COUNTER STATEMENT OF THE CASE

Petitioner’s pro se Complaint alleged that

Respondent’s legal representation of him was negligent

for the following:

(a) By failing to explain to the Plaintiff that she

missed 2 statue’s [sic] of limitations; (b) By

representing to the plaintiff that even after she

missed both statue’s [sic] one at 9 months after

she was retained and the second at 11 months

after she was retained that the case can be won

with the same results as if she did not miss both

statues [sic], (c) By holding herself out as the

attorney for Petitioner but not representing his

best interest. She missed the fact that because of

this all the Petitioner’s evidence was time barred

yet she was never forth coming [sic] and let the

him suffer major economic losses by not

explaining the damage, to the case that her

negligence caused to the case; (d) By taking

large sums of money under the guise of ‘nonrefundable’ retainers without any accounting

therefor, (e) By failing to provide him with the

minimum standard of care, (f) By being

4

dishonest she breached her duty towards

Petitioner by her being negligent, made

mistake’s [sic] which she tried to conceal and to

blame other factors and people, that plaintiff

will show she was deceptive.” ECF Document 1

(Notice of Removal, with Plaintiff’s Complaint

attached).

Petitioner also alleged that: “In addition to the

negligence/malpractice committed by the defendant . . .

Defendant fraudulently induced the plaintiff to pay

him large sums of money by making representations

regarding the legal matter which were untrue.” Id. The

latter allegation, which is both vague and untrue, is the

apparent basis for what Petitioner’s counsel

characterizes as a conflict of interest claim.

Although Respondent believes that review of the

Third Circuit’s opinion is sufficient to show that the

Petition is without merit, a discussion of the history of

the matter in which Respondent represented

Petitioner, as well as of his lawsuit against

Respondent, follows for the Court’s information.

Petitioner was fired by Boeing Company 2009 for

harassing fellow employees. He was previously fired in

2006 for workplace harassment, but was rehired

without back pay after his union filed a grievance. The

reinstatement came with a warning that future

harassment would result in termination. Over a year

later, Petitioner hired Respondent to pursue claims

against his union or Boeing as a result of his

termination. At the time Respondent was retained, she

advised Petitioner that some of his claims might be

time-barred. By letter dated September 14, 2011,

5

Respondent advised Petitioner that: (1) his only viable

cause of action was against UAW Local 1069 for failing

to adequately represent him; (2) and the complaint

against the union must be filed by October 11, 2011.

App. 2.

Respondent filed a Complaint against UAW Local

1069 in the United States District Court for the

Eastern District of Pennsylvania on September 30,

2011, alleging violations of the Labor Management

Relations Act (“LMRA”) and the Labor Management

Reporting and Disclosure Act (“LMRDA”) with regard

to UAW Local 1069’s representation of Petitioner in the

termination process. The suit was premised on the

Union’s allegedly inadequate representation of

Petitioner during the termination process. The case

was stayed to allow Petitioner to exhaust his

administrative appeals. App. 2.

During the administrative appeal, contrary to

Respondent’s instruction, Petitioner wrote ten ex-parte

letters to District Judge Diamond purporting to detail

his progress in exhausting his union appeal process,

including a letter dated June 2, 2014 in which he

recounted his efforts to investigate Respondent’s

handling of the case. During the stay, the relationship

between Respondent and Petitioner deteriorated, as

Petitioner continued to communicate directly with the

Court, against the advice and admonition of

Respondent. App. 3.

Before writing to Judge Diamond, Petitioner

consulted other attorneys about Respondent’s alleged

malpractice. Petitioner admitted during his deposition

in the matter below that after meeting with one of

6

these attorneys, he understood that Respondent had

filed his lawsuit too late. App. 2. In a letter to

Petitioner dated May 6, 2014 and captioned “RE:

Doyle v. the Vigilante Law Firm,” Sidney Gold, an

attorney with whom Petitioner consulted, declined to

represent him, but informed him that “[he] had advised

[Petitioner] that [Petitioner] has only two (2) years

from any act of malpractice to file a claim in the Court

of Common Pleas in Pennsylvania.” Petitioner

continued to solicit advice from Mr. Gold about whether

he should pursue Respondent’s malpractice insurance.

Mr. Gold also advised Petitioner to contact a legal

malpractice attorney. In response, Petitioner claims he

contacted Mr. Cohn, such an attorney, who advised him

that a malpractice case could not be brought while the

underlying case was pending. After speaking with Mr.

Cohn, on June 2, 2014 Petitioner wrote to Judge

Diamond’s law clerk stating that he had consulted with

several attorneys who told him “to file a malpractice

action against the Vigilante Law Firm for filing over

the statute of limitations.” Petitioner further stated

that he “was told…to not waste time and file a

malpractice action [because] the clock was ticking.”

Petitioner also advised Respondent of what he learned

from Mr. Gold and she responded that he could retain

a different attorney or choose to represent himself.

App. 10.

After the stay was lifted, the union renewed its

motion to dismiss. Respondent sent Petitioner an email explaining the relevant statutes of limitations and

advising that the “judge has told me clearly that

he…will probably dismiss the LMRA claim.” App. 10.

In the same e-mail, Respondent recommended that an

7

amended Complaint be filed which contained only the

LMRDA claim. Respondent further explained why she

filed the particular claims and the relevant statutes of

limitations for each of the claims. On December 15,

2015, Respondent filed a Second Amended Complaint

on Petitioner’s behalf which alleged that UAW Local

1069 had engaged in a pattern of harassment, false

accusations, discipline and conspiracy against him in

retaliation for his participation in a 2008 UAW Local

1069.

Meanwhile, the attorney-client relationship

deteriorated further between Petitioner and

Respondent. The District Court granted Respondent’s

motion to withdraw her appearance on September 12,

2016.

Petitioner proceeded pro se and on March 30, 2018,

the District Court granted the union’s motion for

summary judgment. Doyle v. United Auto. Aerospace &

Agrc. Implement Workers of Am. Local 1069, No. 116185 slip op. 10-16 (E.D. Pa. March 30, 2018). The

District Court ruled that no retaliation had occurred.

The Third Circuit affirmed the District Court’s

dismissal. Doyle v. United Auto. Aerospace & Agrc.

Implement Workers of Am. Local 1069, 761 F. App’x

136, 2019 U.S. LEXIS 3115 (3d Cir. 2019).

More than four years after Petitioner was told that

the clock was ticking on any malpractice claim against

Respondent, he filed the Complaint in this action on

August 31, 2018. App. 11. Following discovery, the

District Court granted summary judgment for

Respondent on the basis that the statute of limitations

barred Petitioner’s claims.

8

On appeal, with the benefit of legal counsel,

Petitioner argued that there were two malpractice

claims, one premised on Respondent’s alleged failure to

file the underlying case timely, the other premised on

a conflict of interest because Respondent continued to

represent Petitioner, knowing that she failed to timely

file his case against the union. Petitioner’s conflict of

interest argument appears to be based upon

Respondent’s alleged intentional effort to cover up her

mistake. Petitioner argued on appeal that the District

Court failed to address this second claim for legal

malpractice. App. 4. Respondent argued, inter alia,

that the alleged conflict of interest claim was waived on

appeal because it was not raised before the District

Court.

Contrary to Petitioner’s assertions, the Third

Circuit Court of Appeals considered and ruled upon all

of Petitioner’s claims. The Third Circuit specifically

noted Petitioner’s theory regarding the alleged conflict

of interest and stated in footnote 4 of its Opinion: “[t]o

preserve an issue for appeal, a party ‘must

unequivocally put its point before the trial court at a

point and in a matter that permits the court to consider

its merits.’ Shell Petroleum, Inc. v. United States, 182

F.3d 212, 218 (3d Cir. 1999). Although we are skeptical

that Doyle ever raised this claim before the District

Court, we will address the argument because it is

ultimately unpersuasive on the merits.” App. 4, fn 4.

The Court of Appeals noted that Petitioner claimed

that his conflict of interest theory of legal malpractice

was not barred by the statute of limitations. The Court

then stated: “We disagree and will affirm because

9

Doyle cannot show that he suffered damages.” In

affirming the District Court, the Third Circuit Court of

Appeals held that Doyle cannot prove damages because

he did not have a viable case against his union.

Referencing the District Court’s ruling in Doyle v.

United Auto. Aerospace & Agrc. Implement Workers of

Am. Local 1069, No. 11-6185 slip op. 10-16 (E.D. Pa.

March 30, 2018), wherein the LMRDA claims were

decided on the merits and it was determined no

retaliation occurred, the Third Circuit observed that in

its opinion affirming Petitioner’s appeal of the

dismissal of his claim against his union: “We agreed

that ‘Doyle ha[d] not presented any evidence to show

that [the union’s] decision not to arbitrate was

improper or motivated by retaliation for Doyle’s

campaigning efforts, or gives rise to an inference of

such retaliation.” Doyle v. United Auto. Aerospace &

Agrc. Implement Workers of Am. Local 1069, 761

F. App’x 136 (3d Cir. 2019).

REASONS FOR DENYING CERTIORARI

The decision to grant a petition for writ of certiorari

is a matter of discretion for the Court; however,

guidelines regarding the exercise of that discretion are

available. Rule 10 of the Supreme Court Rules outlines

those considerations:

Review on a writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a

writ of certiorari will be granted only for

compelling reasons. The following, although

neither controlling nor fully measuring the

Court’s discretion, indicate the character of the

reasons the Court considers:

10

(a) a United States court of appeals has

entered a decision in conflict with the

decision of another United States court of

appeals on the same important matter; has

decided an important federal question in a

way that conflicts with a decision by a state

court of last resort; or has so far departed

from the accepted and usual course of

judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an

exercise of this Court’s supervisory power;

(b) a state court of last resort has decided an

important federal question in a way that

conflicts with the decision of another state

court of last resort or of a United States court

of appeals;

(c) a state court or a United States court of

appeals has decided an important question of

federal law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this

Court.

The questions raised by the Petition in this matter

do not fall within any of Rule 10’s illustrative examples

of situations or questions which may cause the Court to

exercise its discretion to grant Certiorari. The instant

matter does not involve any decision in conflict with

any other United State Court of Appeals or other Court

of last resort. This matter does not involve any decision

that so far departs from the accepted and usual course

of judicial proceedings so as to warrant this Court to

11

exercise its supervisory power. Nor does this matter

involve any question of federal law that has not been

but should be settled by the Court. The Petition cobbles

together spurious alleged Constitutional issues

regarding access to courts and due process as vehicle to

obtain review of issues uniquely of state law, namely

legal malpractice and the application of the applicable

statute of limitations.

A. Petitioner’s Claims were Addressed by the

Third Circuit

As reflected in the Counterstatement of the Case,

supra, Petitioner’s assertion that the Third Circuit

failed to address and resolve every issue raised by

Petitioner and thereby denied Petitioner his due

process right of access to the courts is simply wrong.

While succinct, the Third Circuit ruled that there was

no viable claim for malpractice on either a theory of the

missed statute of limitations or the alleged conflict of

interest because Petitioner could not prove that he had

sustained any damages because he did not have a

viable claim against his union in the underlying case.

This ruling was based on the District Court’s ruling in

Doyle v. United Auto. Aerospace & Agrc. Implement

Workers of Am. Local 1069, No. 11-6185 slip op. 10-16

(E.D. Pa. March 30, 2018), wherein the LMRDA claims

12

were dismissed on the merits because Petitioner could

not produce any proof that retaliation occurred.1

1

Petitioner wrongly asserts in footnote 3 of his Petition that his

lawsuit against his union was dismissed “almost entirely on

statute of limitations grounds.” To the contrary, the Third Circuit’s

opinion affirming the dismissal of that lawsuit states:

The Union argues that Doyle has not presented any

evidence to show that its decision not to arbitrate was

improper or motivated by retaliation for Doyle’s

campaigning efforts, or gives rise to an inference of such

retaliation. We agree. The evidence in the record shows

that the Union considered Doyle’s case and made a

decision not to arbitrate based on its determination that

arbitration would be unsuccessful. See ECF 93-1, at 2-3

(committee meeting notes). Nor has Doyle shown an

unusually suggestive temporal proximity to establish a

causal connection between his campaigning and the

Union’s decision not to arbitrate. See Thomas v. Town of

Hammonton, 351 F.3d 108, 114 (3d Cir. 2003). As to

Doyle’s claim that the Union retaliated against him due to

the International Union’s failure to return his calls for

assistance, the District Court correctly concluded that

there is no evidence of retaliation by the Union with

respect to this allegation. Not only is International Union

not a party to this action, but Doyle has not alleged or

presented any evidence that the International Union and

Local 1069 conspired against him.

Similarly, there is no evidence in the record showing a

pattern of “actual antagonistic conduct” between the

Union’s 2008 campaign and Doyle’s 2009 termination. See

Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir.

2007) (stating that, regarding a claim for unlawful

retaliation under the Pennsylvania Human Relations Act,

“[w]here the time between the protected activity and

adverse action is not so close as to be unusually suggestive

of a causal connection standing alone, courts may look to

the intervening period for demonstrative proof, such as

13

The Third Circuit’s ruling, which rejected

Petitioner’s conflict of interest claim, correctly relied on

the Pennsylvania Supreme Court’s decision in Kituskie

v. Corbman, 552 Pa. 275, 714 A.2d 1027 (Pa. 1998), and

the Pennsylvania Superior Court’s decision in

Dougherty v. Pepper Hamilton LLP, 133 A.3d 792 (Pa.

Super. 2016). To establish a legal malpractice claim,

the plaintiff must satisfy the following three-prong test:

1) [E]mployment of the attorney or other basis

for a duty;

2) the failure of the attorney to exercise ordinary

skill and knowledge; and

3) that such negligence was the proximate cause

of damage to the plaintiff.

Kituski, supra, at 1029 (citation omitted). Moreover,

the plaintiff’s damage must be an “actual loss rather

than... nominal damages, speculative harm or the

threat of future harm.” Id. at 1030.

In the instant matter, both the District Court and

the Third Circuit held that Petitioner’s inability to

actual antagonistic conduct or animus”). For example,

Doyle complains of two incidents wherein Union

committeeman Kozlowski filed either a complaint or

charges against Doyle, which were later either withdrawn

by Kozlowski or dismissed by the Union. These incidents

do not amount to a pattern of antagonistic conduct.

Additionally, Doyle has failed to put forth any evidence to

support his allegations of “months of repeated

harassment,” Appellant’s Brief, at 4, or that the Union

played a role in his job re-assignment.” Id.761 Fed. Appx.

136, 139-140. (3d. Cir. 2019). U.S. App. LEXIS 3115.

14

prove up his case against the union, including proof he

suffered actual damages, means he cannot prevail on a

claim for malpractice against the attorney

(Respondent) who prosecuted the case against the

union. While Petitioner attempts to distinguish the

malpractice claim based upon a conflict of interest by

saying it stands alone from the other alleged

malpractice, he fails to cite to a single authority which

supports this argument. Petitioner’s reliance upon

Coleman v. Duane Morris, LLP, 58 A.3d 833, 2012 Pa.

Super. LEXIS 4100 is misplaced. Coleman does not

stand for the proposition that a litigant in a legal

malpractice case does not have to prove the casewithin-the case to prevail on the claim. Rather, at issue

was long-standing precedent regarding a limitation on

the damages recoverable in a legal malpractice action.

Specifically, the court addressed the distinction

between recoverable damages in an action alleging

negligence as opposed to the recoverable damages in

an action premised on a breach of contract, where the

underlying matter involved civil law rather than

criminal law. The Coleman court held:

Accordingly, we conclude that the limitation on

damages imposed by the Bailey Court applies to

an action in assumpsit based on a claim of

attorney malpractice in a criminal case, but that

limitation does not extend to an action for legal

malpractice in assumpsit where the underlying

action was, as here, a civil action. Thus, we

conclude that the trial court in the present case

erred in applying the Bailey limitation on

damages, and we reverse the trial court on that

issue. Id. at 838.

15

In Petitioner’s case, in order to prevail on any claim

for malpractice, his burden was to prove that, absent

the conduct of his attorney, he would have succeeded in

his claim against his union. Here, the Third Circuit

ruled that Petitioner could not meet his burden of proof

in his claim against the union, thus the decision to

dismiss the malpractice claims against Respondent was

rightfully upheld. Accordingly, this Court should deny

Petitioner’s writ.

B. Petitioner’s

Conflict

of

Malpractice Claim is Waived

Interest

As addressed in the Counterstatement of the case,

it was not until Petitioner secured counsel on the

appeal that a second theory of malpractice premised

upon the alleged conflict of interest emerged. However,

this argument was never raised in the litigation of the

case before the District Court and not raised in

opposition to Respondent’s motion for summary

judgment which sought the dismissal of all claims.

Because the conflict of interest claim was raised for the

first time on appeal, it was waived. The Third Circuit

has held that a “failure to raise an issue in the district

court constitutes a waiver of the argument.” Belitskus

v. Pizzingrilli, 343 F.3d 632, 645 (3d Cir. 2003). Thus,

in order to preserve any argument for appeal, a party

“must unequivocally put its position before the trial

court at a point and in a manner that permits the court

to consider its merits.” Shell Petroleum, Inc. v. United

States, 182 F.3d 212, 218 (3d Cir. 1999); see also

DIRECTV, Inc. v. Seijas, 508 F.3d 123, 125 n.1 (3d Cir.

2007). Moreover, “[m]erely raising an issue that

encompasses the appellate argument is not enough.”

16

Spireas v. Comm’r of Internal Revenue, 886 F.3d 315,

321 (3d Cir. 2018) (quoting United States v. Joseph, 730

F.3d 336, 337 (3d Cir. 2013)). Rather, the argument

must have been made with “exacting specificity” in the

district court. Id.; see also Gen. Refractories Co. v. First

State Ins. Co., 855 F.3d 152, 162 (3d Cir. 2017)

(applying Joseph to a civil case).

As Respondent argued on appeal, Petitioner failed

to take any discovery and presented no cognizable legal

argument that his legal malpractice claim was

premised on a second theory that there was a conflict

of interest because Respondent knew she missed the

statute of limitations on his claim against the union,

but she covered it up and continued her representation.

Furthermore, he failed to present any argument in

response to Respondent’s summary judgment motion,

which clearly asked the Court to dismiss all claims

against Respondent. On appeal, the Third Circuit

recognized that waiver may be an issue, setting forth in

footnote 4 of the opinion: “[t]o preserve an issue for

appeal, a party ‘must unequivocally put its position

before the trial court at a point and in a manner that

permits the court to consider its merits.’” Shell

Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d

Cir. 1999). Although we are skeptical Doyle ever raised

this claim before the District Court, we will address the

argument because it is ultimately unpersuasive on the

merits.” App. 4. Therefore, there is no basis to grant

certiorari on the conflict of interest claim because it

was waived.

17

C. Petitioner’s Constitutional Rights Were Not

Violated By The Third Circuit’s Ruling

The manner in which the Third Circuit ruled upon

the issues raised by Petitioner on appeal did not violate

Petitioner’s Constitutional rights. Petitioner now

claims that he has been denied due process and access

to the courts because he is dissatisfied with how the

Third Circuit addressed his claims on appeal. Despite

his claims of Constitutional violations and lack of due

process, Petitioner fails to cite to a single authority

which supports his claim that his rights were denied.

Instead, he cites cases which do not support his central

argument that the Third Circuit’s failure to fully rule

upon the conflict of interest claim is tantamount to a

denial of due process. Petitioner argues: “It is basic

civil procedure that a lower court’s dismissal of a claim

while failing to give notice that the claim or issue

would be considered during summary judgment is

reversible error,” citing Couden v. Duffy, 446 F.3d 483,

500 (3d Cir. 2006). In Couden, the Court addressed

and affirmed the District Court’s sua sponte granting

of summary judgment to a defendant who did not file

a dispositive motion. In so ruling the Third Circuit

stated:

It has long been established that, under the

right circumstances, district courts are entitled

to enter summary judgment sua sponte. Gibson

v. Mayor and Council of Wilmington, 355 F.3d

215, 222 (3d Cir. 2004). The court may not enter

judgment, however, without “placing the

adversarial party on notice that the court is

considering a sua sponte summary judgment

18

motion” and providing that party

“an

opportunity to present relevant evidence in

opposition to that motion.” Chambers Dev. Co. v.

Passaic County Utils. Auth., 62 F.3d 582, 584 n.5

(3d Cir. 1995); see also Otis Elevator Co. v.

George Washington Hotel Corp., 27 F.3d 903, 910

(3d Cir.1994). Notice is satisfied if “‘the targeted

party had reason to believe the court might

reach the issue and received a fair opportunity

to put its best foot forward.’” Gibson, 355 F.3d at

223-24 (quoting Leyva v. On the Beach, Inc., 171

F.3d 717, 720 (1st Cir. 1999) (internal citation

and quotation marks omitted)).

446 F.3d at 500.

Cowden is readily distinguishable. Here the District

Court did not act sua sponte. To the contrary, the Court

granted Respondent’s Motion for Summary Judgment

which requested that all of Petitioner’s claims be

dismissed: “[because] he has failed to produce any

evidence that Ms. Vigilante intentionally mislead him

with regard to the viability of his claims, and admitted

that he was mistaken about when his cause of action

arose, Plaintiff’s claims are time-barred and must be

dismissed.” Respondent’s Motion for Summary

Judgment, ECF Document 27, page 8. The identical

grounds for dismissal were asserted in Respondent’s

Brief in Support of her Motion. ECF Document 27-8,

page 25. The Proposed Order filed with the Motion

requested that “all counts of Plaintiff’s Complaint and

Plaintiff’s claims [be] dismissed with prejudice.” ECF

Document 27-1.

19

Petitioner’s Brief in Opposition to Respondent’s

motion for summary judgment, in apparent response to

Respondent’s argument that he had not produced

evidence of his being intentionally misled, argued: “My

lawyer . . . continued to take my money, took

depositions from my witnesses, continued to file

motions with the court and told Plaintiff that the case

was not dismissed and I still had a solid claim . . .”

referencing a December 19, 2015 e-mail from

Respondent. (ECF Document 28, page 8). Therefore,

Petitioner’s Constitutional arguments based on an

alleged lack of notice of the nature of the Motion must

fail and the Petition should be denied.

The decisions of this Court cited by Petitioner (at

page 13 of the Petition in particular) are equally

unavailing. Respondent does not dispute that parties

have a Constitutional right to access to the courts,

which includes a right to be heard on relevant issues.

Given the facts of the cited decisions, however, none of

them support granting of the present Petition. For

example, Franklin v. Gwinett County, 503 U.S. 60

(1992) invoked the right of access to the courts in

support of its holding that Title IX plaintiffs could

recover money damages. North Carolina v. Pearce, 395

U.S. 711 (1969) and Blackledge v. Perry, 417 U.S. 21

(1974) both held that the right to appeal a criminal

conviction could not be restricted by fear that an

unsuccessful appeal might have an adverse impact in

future sentencing.

Harrington v. Richter, 562 U.S. 86 (2011) is the only

cited decision that is even remotely on point based on

its statement about the Court of Appeals “all but

20

ignor[ing] ‘the only question that matters

under § 2254(d)(1).’” Harrington, however, does not

support granting the Petition. First, its holding

involved the Circuit Court’s not addressing a specific,

clearly applicable statute. Second, the Circuit Court’s

failure to do so related to an important, widely

applicable issue regarding the scope of federal court

review of habeas corpus petitions by persons convicted

of violating state laws. Here, the issue presented is of

interest only to Petitioner, and was both noted by and

addressed by the Third Circuit (albeit not to

Petitioner’s satisfaction). And, as noted above, one

could fairly conclude that Petitioner did have notice

that Respondent sought summary judgment as to all

Petitioner’s claims.

CONCLUSION

For the reasons stated above, the Court should deny

the Petition for Writ of Certiorari because it does not

invoke any of reasons identified by Rule or otherwise

identify any compelling reason why the Court should

exercise it discretion to review a non-precedential

decision based entirely on state law whose outcome is

of interest solely to Petitioner and Respondent.

21

Respectfully submitted,

PATRICIA A. FECILE-MORELAND

Counsel of Record

MARKS O’NEILL O’BRIEN

DOHERTY AND KELLY

1617 John F. Kennedy Blvd.

One Penn Center, Suite 1010

Philadelphia, PA 19103

(215) 564-6688

pmoreland@moodklaw.com

Counsel for Respondent