HomeMy WebLinkAbout02-2009
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
Civil Action - Law
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DAVID R. BRESCHI, ESQ., NO.
MELISSA A. SWAUGER, ESQ.
AND SHUMAKER WILLIAMS, P.C.,:
Defendants :
OF 2002 -.2007
NOTICE TO DEFEND
You have been sued in court.
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If you wish to defend
must
take
action
wi thin twenty (20)
against the claims set forth in the following pages, you
this
are served, by entering a wri tten
days
after
complaint
and
notice
appearance personally or by attorney and filing in writing
forth against you.
with the court your defenses or ojections to the claims set
You are warned that if you fail to do so
the case may proceed wi thout you and
a
judgment may be
entered against you by the court wi thout further notice for
any other claim or relief requested by the plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
CAN GET LEGAL HELP.
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
6.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
1-800-990-9100
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
Civil Action - Law
v.
DAVID R. BRESCHI, ESQ., NO.
MELISSA A. SWAUGER, ESQ,
AND SHUMAKER WILLIAMS, P.C.,:
Defendants :
OF 2002 - ;001
COM P L A I N T
LEGAL MALPRACTICE
NEGLIGENCE
1. Pro se plaintiff, John Russell Nicrone, is a citizen
of the Commonwealth of Pennsylvania with his
address
at
S.C.!. Dallas,
1000
Follies Road, Dallas, PA 18612-0286,
2. Defendant David R. Breschi, attorney at law, is an
employee and agent of Shumaker Williams, P.C., and is duly
licensed
to
practice
law
in
the
Commonwealth
of
Pennsylvania. Defendant works out of the office at Shumaker
Williams, P.C., Pennsylvania Center, 3425 Simpson Ferry
Road, Camp Hill, PA 17011.
3. Defendant Melissa A. Swauger, attorney at law, is an
employee of Shumaker Williams, P.C., and is duly licensed to
practice law in the Commonwealth of Pennsylvania. Defendant
works
out
of
the
office
at Shumaker Williams,
P.C. ,
Pennsylvania Center, 3425 Simpson Ferry Road, Camp Hill, PA
1701 I.
4. Defendant Shumaker Williams is a professional
corporation (attorney at law) duly licensed to operate as
such in the Commonwealth of Pennsylvania with offices at the
Pennsylvania Center, 3425 Simpson Ferry Road, Camp Hill, PA
1701 I.
5. On or about August 21, 2000, Russell and Joan
Nicrone, parents of the plaintiff, consulted with attorney
David R. Breschi concerning the plaintiff's recent criminal
conviction. Mr. Breschi had been the plaintiff's attorney of
record through most of the preceding thus far.
6. Attorney Breschi, employee and agent for Shumaker
Williams, P.C., by oral agreement, accepted plaintiff's case
on behalf of Shumaker Williams, P.C., and to pursue a direct
appeal concerning the discretionary aspects of sentencing to
the Superior Court for a flat fee of $2500.00.
7. Plaintiff believes that the appeal concerned
meritorious issues, otherwise attorney Breschi never would
have recommended said course of action.
8. On July 14, 2001, a panel of the Superior Court
(Cavanaugh, Stevens and Tamilia, JJ.) issued an unpublished
memorandum opinion affirming the judgment of sentence.
However, the Superior Court affirmed the judgment of
sentence without addressing the merit of any of the
Plaintiff's allegations of error because they were not set
forth in a concise statement of the reason relied upon in
support of the request for appeal as required by
Pa.R.A.P. 2119(f).
So,
in
essence, no appeal was filed.
9. Plaintiff was represented at all times by David
R. Breschi and Melissa A. Swauger, attorneys employed by the
professional corporation of Shumaker Williams.
10. Plaintiff was required to devote the two months
following the dismissal of his appeal for failure to follow
the rules of procedure, exclusively trying to find a way to
save his appellate rights, as he could no longer afford
counsel.
11. After well over six weeks worth of intensive
research in an area in which, quite frankly, plaintiff was
completely ignorant, on or about August 8, 2001, plaintiff
filed a pro se petition under the Post Collateral Relief Act
claiming ineffective assistance
violation of his sixth amendment
ineffectiveness.
of appellate counsel and a
rights as a result of said
12. On
or
about
November 5,
2001,
the
Honorable
Lawrence F. Clark, Jr., Judge, Court of Common Pleas of
Dauphin County, Pennsylvania, found defendant Breschi, and
consequently all those involved with his prior direct
appeal, ineffective, and granted plaintiff's request for
nunc pro tunc appellate review.
13. Defendant attorney Breschi, by failing to follow
the published (and mandatory) Pennsylvania Rules of
Appellate Procedure was negligent in that:
a) he failed to exercise the ordinary care, skill and
diligence required of an attorney,
14. because of the defendant's negligence, plaintiff
has been forced to endure another year of mental anguish and
suffering wondering what the outcome of his appeal will be.
15. Because of the defendant's negligence, plaintiff
has been forced to defend himself: to spend dozens of hours
doing research in an area in which he was completely
ignorant, and to do so without legal assistance because he
was effectively without funds. Plaintiff simply could not
afford new counsel.
WHEREAS, plaintiff demands judment against defendant in
excess of $5,000.00 plus interest and costs.
SECOND COUNT
NEGLIGENCE
16. Paragraphs 1-15, inclusive, are incorporated herein
and made a part hereof by reference.
17. Attorney defendant Melissa A. Swauger was credited
on the defendant's bill for having devoted over forty (40)
hours to the research and preparation of plaintiff's direct
appeal but was unable to follow the standard and required
Pennsylvania Rules of Appellate Procedure.
18. Defendant, by failing to follow the required Rules
of Appellate procedure was negligent in that:
a) she failed to exercise the ordinary care, skill and
diligence of an attorney.
19. Because of the defendant's negligence, plaintiff
has been forced to endure another year of mental anguish and
suffering wondering what the outcome of his appeal will be.
20. Because of the defendant I s negligence, plaintiff
has been forced to defend himself: to spend dozens of hours
doing research in an area in which he was completely
ignorant and to do so without legal assistance because he
was effectively without funds. Plaintiff simply could not
afford new counsel.
WHEREAS, plaintiff demands judgment against defendant
in excess of $10,000.00.
THIRD COUNT
VICARIOUS LIABILITY
21. Paragraphs 1-20 inclusive,
and made a part hereof by reference.
22. Both attorney defendant Breshci and
defendant Swauger are employees (or were employees
time of their negligence) of Shumaker Williams, P.C.
23. As a result of the failure of attorneys defendant
Breschi and Swauger to exercise the ordinary care, skill and
diligence of an attorney, and of their being employed at the
time of said failing by Shumaker Williams, P.C., Shumaker
Williams, P.C. is responsible for said negligence of both
attorneys under the theory of Vicarious Liability.
are incorporated herein
attorney
a t the
.
WHEREAS,
plaintiff
demands
judgment
against
defendant inexcess of $20,000.00
Respectfully submitted,
(/---,f J -0.(
Date:
J Russell Nicrone
EF-5026
pro se plaintiff
S.C.I. Dallas
1000 Follies Road
Dallas, PA 18612-0286
VERIFICATION
I verify that the statements made herein are true and
correct. I understand that false statements made herein are
subject to the penalties of Pa.C.S.@4904 relating to unsworn
falsification to authorities.
n Russell Nicrone
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
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JOHN RUSSELL NICRONE,
Plaintiff
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DAVID R. BRESCHI, ESQ.,
MELISSA A. SWAUGER, ESQ.
AND SHUMAKER WILLIAMS, P.C.,:
Defendants :
NO.
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PETITION BY INDIGENT PARTY FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
COMES NOW, the peti tioner,
pro se, and respectfully
avers the following:
1. The
pro
se
plaintiff is John Russell
Nicrone,
EF-5026, and
currently
resides
at
S.C. I. Dallas,
1000
Follies Road, Dallas, PA 18612-0286.
2. Defendant attorney David R. Breschi, attorney at
law, is an employee and agent of Shumaker Williams, P.C.,
and is duly licensed to practice law in the Commowealth of
Pennsylvania. Defendant works out of the office at Shumaker
Williams, P.C., Pennsylvania Center, 3425 Simpson Ferry
Road, Camp Hill, PA 17011.
3. Attorney defendant Melissa A. Swauger is an employee
of Shumaker Williams, P.C., and is duly licensed to practice
law in the Commonwealth of Pennsylvania.
Defendant Swauger
works
out
of
the
office
at Shumaker Williams,
P.C. ,
Pennsylvania
PA 17011.
4. Defendant Shumaker Williams is a professional
corporation (attorneys at law) duly licensed to operate as
such in the Commonwealth of Pennsylvania, with offices at
the Pennsylvania Center, 3425 Simpson Ferry Road, Camp Hill,
Center, 3425 Simpson Ferry Road, Camp Hill,
PA 17011.
5. Pro se
plaintiff is an indigent and incarcerated
person.
6. Pro se plaintiff I s only source of income is roughly
$35.00 per month that he earns through the prison.
7. Plaintiff has a valid cause of action against the
defendants for negligence and vicarious liability.
8, Pro se plaintiff has no funds with which to exercise
his legal rights in this matter as evidenced by Exhibit "A,"
a more detailed statement of plaintiff I s financial
condition.
9. The financial condition of the defendant is unknown
to the plaintiff.
10. As an indigent party, pro se plaintiff is unable to
pay any of the necessary costs to prosecute this action.
11. If denied the right to prosecute this cause of
action for negligence and vicarious liability, pro se
plaintiff will have suffered extreme mental anguish, pain
and suffering, without the ability to hold those who caused
said suffering accountable. It would be a travesty of
justice.
WHEREFORE, pro se plaintiff prays your Honorable Court
to enter an Order granting plaintiff leave to file a
Complaint for negligence and vicarious liability as an
indigent party and to proceed to termination thereof wi thout
the necessity of paying any costs therefore.
Respectfully submitted,
Q-~-
Russell Nicrone
E -5026
S.C.!. Dallas
1000 Follies Road
Dallas, PA 18612-0286
Date: Y-,fI-o:1..
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
Civil Action - Law
v.
DAVID R. BRESCHI, ESQ., NO.
MELISSA A. SWAUGER, ESQ.
AND SHUMAKER WILLIAMS, P.C.,:
Defendants :
OF 2002
AFFIDAVIT IN SUPPORT OF PETITION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS PURSUANT TO RULE 240
1. I am the plaintiff in the above matter and because of
my financial condi tion am unable to pay the fees and costs
of prosecuting or defending the action or proceeding.
2. I am unable to obtain funds from anyone, including
my family and associates, to pay the cost of litigation.
3. I represent that the information below is true and
correct:
(a) Name: John Russell Nicrone
Address:
S.C.!. Dallas, 1000 Follies Road, Dallas, PA
18612-0286.
Social Security number: 17;J-(,u-Sli'd,
(b) Employment: Inmate payroll approximately $35.00.
(c) Other income within the past twelve months: None.
(d) Other contributions to household support: None.
(e) Property owned: None.
(f) Debts and obligations: t!o"-"'+ Co:;ls!-h;'a ,;.. ""l((.(.$! "of JoOJS;OO<.J,".
(g) Persons dependent upon you for support: None.
4. I understand that I have a continuing obligation to
inform
the
court
of
improvement
in
my
financial
circumstances, which would permit me to pay the costs
herein.
5. I verify that statements made in this affidavit are
true and correct. I understand that false statements herein
are
made
subject to the penalties
of
18
Pa.C.S.~4904
relating to unsworn falsification to authorities.
J
E 5026
Pro se plaintiff
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
Civil Action - Law
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DAVID R. BRESCHI, ESQ.,
MELISSA A. SWAUGER, ESQ,
AND SHUMAKER WILLIAMS, P.C,,:
Defendants :
NO. ;)001 OF 2002
PETITION BY INDIGENT PARTY FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
COMES NOW, the petitioner,
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pro se, and respectfully
avers the following:
1, The
se
plaintiff is John Russell
pro
EF-5026, and
S,C.I. Dallas,
Nicrone,
currently
resides
at
Follies Road, Dallas, PA 18612-0286.
1000
2. Defendant attorney David R. Breschi, attorney at
law, is an employee and agent of Shumaker Willi.ams, P.C.,
and is dUly licensed to practice law in the Commowealth of
Williams, P.C.,
Pennsylvania. Defendant works out of the office at Shumaker
Pennsylvania Center,
3425 Simpson Ferry
Road, Camp Hill, PA 17011.
3, Attorney defendant Melissa A. Swauger is an employee
law in the Commonwealth of Pennsylvania.
of Shumaker Williams, P.C" and is duly licensed to practice
Defendant Swauger
works
out
of
the
office
at Shumaker Williams,
P.C. ,
,
Pennsylvania
PI', 17011.
Center, 3425 Simpson Ferry Road, Camp Hill,
4. Defendant Shumaker Williams is a professional
corporation (attorneys at law) duly licensed to operate as
such in the Commonwealth of Pennsylvania, with offices at
the Pennsylvania Center, 3425 Simpson Ferry Road, Camp Hill,
PI', 17011,
5. Pro se
plaintiff is an indigent and incarcerated
person.
6. Pro se plaintiff's only source of income is roughly
$35.00 per month that he earns through the prison,
7. Plaintiff has a valid cause of action against the
defendants for negligence and vicarious liability,
8. Pro se plaintiff has no funds with which to exercise
his legal rights in this matter as evidenced by Exhibit "A,"
a more detailed statement of plaintiff's financial
condition.
9, The financial condition of the defendant is unknown
to the plaintiff.
10, As an indigent party, pro se plaintiff is unable to
pay any of the necessary costs to prosecute this action,
11. If denied the right to prosecute this cause of
action for negligence and vicarious liability, pro se
plaintiff will have suffered extreme mental anguish, pain
and suffering, without the ability to hold those who caused
said SUffering accountable. It would be a travesty of
justice.
.
WHEREFORE, pro se plaintiff prays your Honorable Court
to enter an Order granting plaintiff leave to file a
Complaint for negligence and vicarious liability as an
indigent party and to proceed to termination thereof without
the necessity of paying any costs therefore.
RespectfUlly submitted,
~~~-
E -5026
S.C. I. Dallas
1000 Follies Road
Dallas, PA 18612-0286
Date: '/-.fl-Ot<.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
Civil Action - Law
v.
DAVID R, BRESCHI, ESQ" NO,
MELISSA A. SWAUGER, ESQ.
AND SHUMAKER WILLIAMS, P.C.,:
Defendants :
OF 2002
AFFIDAVIT IN SUPPORT OF PETITION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS PURSUANT TO RULE 240
], I am the plaintiff in the above matter and because of
my financial condition am unable to pay the fees and costs
of prosecuting or defending the action or proceeding,
2. I am unable to obtain funds from anyone, including
my family and associates, to pay the cost of litigation.
3. I represent that the information below is true and
correct:
(a) Name: John Russell Nicrone
Address:
S.C.!. Dallas, ]000 Follies Road, Dallas, PA
]86]2-0286.
Social Securi ty number: /7;1 -&0 - Sf.fJ
(b) Employment: Inmate payroll approximately $35,00.
(c) Other income within the past twelve months: None.
(d) Other contributions to household support: None,
(e) Property owned: None.
.
(f) Debts and obligations: (J04,.j- (!osls!-h;'u '" ~Xl(,U I,.f -II-,;;S;ouu..'
(g) Persons dependent upon you for support: None.
4, I understand that I have a continuing obligation to
inform
the
court
of
improvement
in
my
financial
circumstances, which would permit me to pay the costs
herein.
5. I verify that statements made in this affidavit are
true afld correct.
I understand that false statements herein
are
made
subject to the penalties
of
18
Pa.C,S,~4904
relating to unsworn falsification to authorities.
APR 2 5 2002 )
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
Civil Action - Law
v.
DAVID R, BRESCHI, ESQ.,
MELISSA. A. SWAUGER, ESQ.
AND SHUMAKER WILLIAMS, P.C.
Defendants
NO.
OF 2002 -~O 7
ORDER
AND NOW this
z-Ic day of ~t \
2002,
it
is
hereby ORDERED and ADJUDGED that the plaintiff be granted
leave to proceed in forma pauperis
as to the following:
1. filing fees and court costs,
@ 3. any
hrosecuting
2. service of process
cwv+-
other costs
on defendants, and
that may arise as a
result
of
this action.
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McKISSOCK & HOFFMAN, P.C.
By: Edwin A.D. Schwartz, Esquire
Attorney I.D. #75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
ATTORNEYS FOR DEFENDANTS, DAVID
BRESCHI, MELISSA SWAUGER &
SHUMAKER WILLIAMS, P.C.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
JOHN NICRONE,
Defendants
DOCKET NO. 02-2009
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
v.
DAVID BRESCHI, MELISSA SWAUGER &
SHUMAKER WILLIAMS, P.C.,
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter my appearance on behalf of Defendants, David Breschi, Melissa Swauger &
Shumaker Williams, P.C., in the above-captioned.
McKissock & Hoffman, P.C.
BY:~~
Edwin A.~Sc~, Esquire
Attorney I.D. No.: 75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Attorneys for Defendants, David
Breschi, Melissa Swauger &
Shumaker Williams, P.C.
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance
upon the person(s) and in the manner indicated below, which service satisfies the requirements
of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States
Mail, first-class postage prepaid, addressed as follows:
John Nicrone, EF-5026
SCI Dallas
1000 Folies Road
Dallas, PA 18612-0286
McKissock & Hoffman, P.C.
By:
Edwin A.D. Sch
Attorney I.D. No.: 5902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Attorneys for Defendants, David Breschi, Melissa
Swauger & Shumaker Williams, P.C.
Dated: ~hc>~2.
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McKISSOCK & HOFFMAN, P.C.
By: Edwin A.D. Schwartz, Esquire
Attorney I.D. #75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
ATTORNEYS FOR DEFENDANTS, DAVID R.
BRESCHI, MELISSA A. SWAUGER &
SHUMAKER WILLIAMS, P.C.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
JOHN RUSSELL NICRONE,
v.
DOCKET NO. 02-2009
DAVID R. BRESCHI, MELISSA A. SWAUGER CIVIL ACTION - LAW
& SHUMAKER WILLIAMS, P.C.,
Defendants JURY TRIAL DEMANDED
NOTICE TO PLEAD
To: John Russell Nicrone, EF-5026
SCI Dallas
1000 Follies Road
Dallas, PA 18612-0286
You are hereby notified to plead to the enclosed Answer and New Matter pursuant
to Pa.R.C.P. 1030 within 20 days from service hereof or a default judgment may be
entered against you.
ANSWER AND NEW MATTER
AND NOW, come Defendants, David R. Breschi, Melissa A. Swauger & Shumaker
Williams, P.C., by and through their attorneys, McKissock & Hoffman, P.C., and respectfully files
the foregoing Answer and New Matter to Plaintiffs Complaint in the above-captioned matter and
as such, provides the following:
COUNT I - LEGAL MALPRACTICE/NEGLIGENCE
1. Defendants are without sufficient information to admit or deny the averments
contained in Paragraph 1 of Plaintiffs Complaint and as such, the averments contained in
Paragraph 1 of Plaintiffs Complaint are specifically denied, and strict proof thereof is demanded
at the time of trial.
2. Admitted.
3. Admitted.
4. Admitted in part, denied in part. It is admitted that Defendant, Shumaker
Williams, is a professional corporation with its principle office at 3425 Simpson Ferry Road,
Camp Hill, PA 17011. It is specifically denied Shumaker Williams is an "attorney at law" and all
references to Shumaker Williams as an individual are hereby denied and inasmuch as
Shumaker Williams does not exist as an individual.
5. Admitted.
6. Admitted.
7. Denied. Defendants are without information or belief to ascertain Plaintiffs
relative to the merit of issues sought for appeal.
8. Admitted in part, denied in part. It is denied that any opinion in this matter was
issued on July 14, 2001. It is admitted that on June 14, 2001 a Memorandum Opinion was
issued by the Pennsylvania Superior Court wherein the Plaintiff's sentence of incarceration was
affirmed. It is further admitted that the opinion issued by the Superior Court indicates that the
merits of the Plaintiff's appeal were not addressed in light of the Court's determination that a
"brief and concise" statement of the basis for their appeal was not provided in accordance with
Pennsylvania Rule of Appellate Procedure 2119(f). The remaining averments, and all
inferences therein, contained in Paragraph 8 of Plaintiff's Complaint are specifically denied, and
strict proof thereof is demanded at the time of trial. By way of further response, the concurring
opinion as filed on June 14, 2001 by Judge Cavanaugh found that the Defendants' efforts in
filing a Petition for Allowance Appeal on behalf of the Plaintiff was "insubstantial compliance
sufficient for our [Superior Court] review". Furthermore, Judge Cavanaugh opines that even if a
brief and concise statement had been separately provided, that there was no merit to the
Plaintiffs appeal and that Plaintiffs Petition for Allowance Appeal should have been denied and
quashed.
9. Admitted.
10. Defendants are without sufficient information to admit or deny the averments
contained in Paragraph 10 of Plaintiff's Complaint and as such, the averments contained in
Paragraph 10 of Plaintiffs Complaint are specifically denied, and strict proof thereof is
demanded at the time of trial.
11. Defendants are without sufficient information to admit or deny the averments
contained in Paragraph 11 of Plaintiff's Complaint and as such, the averments contained in
Paragraph 11 of Plaintiff's Complaint are specifically denied, and strict proof thereof is
demanded at the time of trial.
12. Defendants are without sufficient information to admit or deny the averments
contained in Paragraph 12 of Plaintiff's Complaint and as such, the averments contained in
Paragraph 12 of Plaintiff's Complaint are specifically denied, and strict proof thereof is
demanded at the time of trial.
13. The averments contained in Paragraph 13, and subparagraph (a) thereunder,
represent conclusions of law to which no response is required. If it is later judicially determined
that a response is so required, the averments contained in Paragraph 13, and subparagraph (a)
thereunder, are specifically denied, and strict proof thereof is demanded at the time of trial.
14. The averments contained in Paragraph 14 represent conclusions of law to which
no response is required. If it is later judicially determined that a response is so required, the
averments contained in Paragraph 14 are specifically denied, and strict proof thereof is
demanded at the time of trial.
15. The averments contained in Paragraph 15 represent conclusions of law to which
no response is required. If it is later judicially determined that a response is so required, the
averments contained in Paragraph 15 are specifically denied, and strict proof thereof is
demanded at the time of trial.
WHEREFORE, Defendants, respectfully request this Honorable Court enter judgment in
its favor and dismiss Plaintiff's Complaint with prejudice and further grant Defendants all such
further relief as is proper and just.
COUNT II - NEGLIGENCE
16. Defendants respectfully incorporate the responses set forth in Paragraphs 1
through 15, inclusive, hereinabove as if more fully set forth herein at length.
17. Admitted in part, denied in part. It is admitted that Defendant, Melissa A.
Swauger, devoted time in the preparation of Plaintiff's appeal. The remaining averments, and
all inferences to be garnered therefrom, as contained in Paragraph 17 of Plaintiff's Complaint
are specifically denied, and strict proof thereof is demanded at the time of trial.
18. The averments contained in Paragraph 18, and subparagraph (a) thereunder,
represent conclusions of law to which no response is required. If it is later judicially determined
that a response is so required, the averments contained in Paragraph 18, and subparagraph (a)
thereunder, are specifically denied, and strict proof thereof is demanded at the time of trial.
19. The averments contained in Paragraph 19 represent conclusions of law to which
no response is required. If it is later judicially determined that a response is so required, the
averments contained in Paragraph 19 are specifically denied, and strict proof thereof is
demanded at the time of trial.
20. The averments contained in Paragraph 20 represent conclusions of law to which
no response is required. If it is later judicially determined that a response is so required, the
averments contained in Paragraph 20 are specifically denied, and strict proof thereof is
demanded at the time of trial.
WHEREFORE, Defendants, respectfully request this Honorable Court enter judgment in
its favor and dismiss Plaintiff's Complaint with prejudice and further grant Defendants all such
further relief as is proper and just.
COUNT III - VICARIOUS LIABILITY
21. Defendants respectfully incorporate the responses set forth in Paragraphs 1
through 20, inclusive, hereinabove as if more fully set forth herein at length.
22. Admitted.
23. The averments contained in Paragraph 23 represent conclusions of law to which
no response is required. If it is later judicially determined that a response is so required, the
averments contained in Paragraph 23 are specifically denied, and strict proof thereof is
demanded at the time of trial.
WHEREFORE, Defendants, respectfully request this Honorable Court enter judgment in
its favor and dismiss Plaintiff's Complaint with prejudice and further grant Defendants all such
further relief as is proper and just.
NEW MATTER
24. Defendants respectfully incorporate the responses set forth in Paragraphs 1
through 23, inclusive, hereinabove as if more fully set forth herein at length.
25. Any and all claims asserted by the Plaintiff against Defendants in this matter are
barred by the statute of limitations to the extent that facts as developed in future discovery may
implicate.
26. Plaintiffs alleged damages, if any, were not proximately caused by the actions or
inactions of Defendants, to the extent facts as developed in future discovery may implicate.
27. The negligent acts and/or omissions of other individuals or entities constitutes an
intervening and/or superseding cause of the damages alleged, if any, to have been sustained by
the Plaintiff in this matter to the extent facts as developed in future discovery may implicate.
28. Plaintiff's alleged damages, if any, were caused by the acts and/or omissions of a
person or persons other than Defendants to the extent that facts as developed in future
discovery may implicate.
29. Plaintiff's alleged damages, if any, were caused by acts, omissions or factors
beyond Defendants control or legal right to control to the extent that facts as developed in future
discovery may implicate.
30. Plaintiff may have already entered into a release and/or voluntary discharge with
other individuals, entities or judicial bodies which may have the effect of discharging any liability
of Defendants to the extent that facts as developed in future discovery may implicate.
31. Plaintiff's claims are barred and/or limited under the doctrine of consent to the
extent that facts as developed in future discovery may implicate.
32. Plaintiff's claims are barred and/or limited under the doctrine of estoppel to the
extent that facts as developed in future discovery may implicate.
33. Plaintiff's claims are barred and/or limited under the doctrine of failure of
consideration to the extent that facts as developed in future discovery may implicate.
34. Plaintiff's claims are barred and/or limited under the doctrine of waiver to the
extent that facts as developed in future discovery may implicate.
35. Plaintiff's Complaint fails to set forth any claim for which relief may be granted.
36. Plaintiff's Complaint fails to allege cognizable damages.
37. Plaintiff has not sustained any damage.
38. If there is a judicial determination that Pa.R.C.P. 238 is constitutional, same
constitutionality being expressly challenged as being in violation of the due process and equal
protection clauses of the 14th Amendment to the United States Constitution, 42 U.S.C. 91983;
Article 1, 991, 6, 11, 25; and Article 5 910(C) of the Pennsylvania Constitution, then liability for
any interest imposed by the Pennsylvania Rules of Civil Procedure should be suspended during
any such period of time that Plaintiff: (a) failed to convey to Defendants a settlement figure; (b)
delayed in responding to any interrogatories properly served; (c) delayed in responding to any
request for production of documents and/or things as properly served; (d) delayed in producing
Plaintiff for deposition following service of proper notice; or (e) delayed in any other matter
pertaining to discovery requests as properly made by Defendants and as a result of any such
delays as asserted hereinabove, Plaintiff should be estopped from obtaining any interest
because of a violation of the discovery rules.
39. Inasmuch as the Pennsylvania Rules of Civil Procedure, specifically Rule 1032,
provides that a party waivers all defenses not presented by way of answer, Defendants, upon
advise of counsel, hereby asserts all affirmative defenses as set forth in the Pennsylvania Rules
of Civil Procedure 1030 those defenses to include in addition to the defenses already
enumerated above, assumption of the risk, consent, contributory negligence, discharge in
bankruptcy, estoppel, failure of consideration, illegality, immunity from suit, impossibility of
performance, justification, latches, license, payment, privilege, release, statute of frauds, statute
of limitations, truth and waiver, with these said affirmative defenses being subject to
demonstration during the discovery process and proof, as relevant, at the time of trial.
Respectfully submitted,
McKissock & Hoffman, P.C.
By:
Edwin A.D. wa, Esquire
2040 Linglestown oad
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Date: .S;/....~ c...
Attorneys for Defendants, David
Breschi, Melissa Swauger &
Shumaker Williams, P.C.
VERIFICATION
I, David R. Breschi, on behalf of Shumaker Williams, P.C., hereby verifies that the
statements in Defendant's Answer and New Matter to Plaintiff's Complaint are true and correct to
the best of my information, knowledge and belief. I understand that the statements are made
subject to the penalties of Pa.C.S. Section 4904, relating to the unsworn falsification to authorities.
~E1~:"'ams,pc
Dated: .At ~ 1dL--
MAY-QO-02 MaN 02:38 PM MCKISSaCK HOFFMAN
f-PJ.:7175403434
PAGE 11
VERI~l~ll91!
I, Melis~ A. ~'lY~uger, herebY v~rifies that t~ s~tements in DffenQarlt's. Ans~r a"q
N~ Matter to Plaintiffs Complaint, ant tnJe an~' Q)rTe<;t to the' best' or my 'irlformation,
knowledge and belief. I understand that the 'statements are m9de subject to the 'penaltl,s of
PA.C.S. Section 4904, relating to the l,Insworn fal$jfjqlti~ to authorities.
Date(j;~~Jh
'MAY-20-02 MaN 02:38 PM MCKISSaCK HOFFMAN
FAX:7175403434
PAGE 10
VERI~eATlON
I, David R. Br8$chi, hereby verifies thatthe statements In Defendanfs. Ans~ and New
,
Matter to Plalntlff~ 9om~laint, are tl'\,/Et ~nq ~t to #1e ~~t of f"Y l{lformatio!l, kn~~ed~Q ~~
belief. I understand tt,at the statements ~re made SUQject to the penalties of PA.C,S. Section
4904, relating to the unsworn falsification to authorities.
Dal8d;~ 7/11 uf2/
~A~
;, Pa. . Braschi
.~. .,
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Answer and New
Matter upon the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the
United States Mail, first-class postage prepaid. addressed as follows:
John Russell Nicrone, EF-5026
SCI Dallas
1000 Follies Road
Dallas, PA 18612-0286
McKissock & Hoffman, P.C.
By:
Edwin A.D. Sch
Attorney I.D. No. 75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Attorneys for Defendants, David R. Breschi,
Melissa A. Swauger & Shumaker Williams, P.C.
Dated:
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SHERIFF'S RETURN - REGULAR
,
CASE NO: 2002-02009 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NICRONE JOHN RUSSELL
VS
BRESCHI DAVID R ESQ ET AL
ROBERT BITNER
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
BRESCHI DAVID R ESQ
the
DEFENDANT
, at 1215:00 HOURS, on the 1st day of May
at 3425 SIMPSON FERRY ROAD
, 2002
CAMP HILL, PA 17011
by handing to
JEFF LEE, ADMIN
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Servicl!il
Aff idavit
Surcharge
So Answers:
18.00
9.66
.00
10.00
.00
37.66
r~~/~~
R. Thomas Kline
05/02/2002
JOHN NICRONE
Sworn and Subscribed to before
BY~
~,
eputy erlff
tr.-
me this /'7 - day of
~ J~~ AD
;r- - ' ^t'ndP" , A o,zr
othonotary I
SHERIFF'S RETURN - REGULAR
"
CASE NO: 2002-02009 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NICRONE JOHN RUSSELL
VS
BRESCHI DAVID R ESQ ET AL
ROBERT BITNER
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
SWAUGER MELISSA A ESQ
the
DEFENDANT
, at 1215:00 HOURS, on the 1st day of May
at 3425 SIMPSON FERRY ROAD
, 2002
CAMP HILL, PA 17011
by handing to
JEFF LEE, ADMIN
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
.00
.00
10.00
.00
16.00
.r~-~~~
R. Thomas Kline
05/02/2002
JOHN NICRONE
Sworn and Subscribed to before
me this /1 ~
day of
BY:~J: u2
AI ',I1.J.A.
eput~eriff
IJ.t,b.. .2~.L A.D.
'~
C!~,~
rothonotary
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-02009 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NICRONE JOHN RUSSELL
VS
BRESCHI DAVID R ESQ ET AL
ROBERT BITNER
Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
was served upon
says, the within COMPLAINT & NOTICE
SHUMAKER WILLIAMS PC
the
, 2002
DEFENDANT
, at 1215:00 HOURS, on the 1st day of May
at 3425 SIMPSON FERRY ROAD
CAMP HILL, PA 17011
by handing to
JEFF LEE, ADMIN
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
6.00
.00
.00
10.00
.00
16.00
Sworn and Subscribed to before
me this /7 IE day of
~ dlffl2-- A.D.
~ (J. k.-"J,. _ ~
P othonotary .
So Answers:
r~~'''<:~
R. Thomas Kline
05/02/2002
JOHN NICRONE
BY'~ ~ ~
. ob" a .
Deputy Sheriff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
JOHN RUSSELL NICRONE,
Plaintiff
: Docket number 02-2009
v.
: Civil Action - Law
DAVID R. BRESCHI, MELISSA A. SWAUGER, : Jury Trial Demanded
& SHUMAKER WILLIAMS, P.C.,
Defendants
NOTICE TO PLEAD
TO: Edwin A.D. Schwartz
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
You are hereby notified to plead to the enclosed Response to Defendant's
Answer and New Matter pursuant to Pa.R.C.P. 1030 within 20 days from service
hereof or a default judgment may be entered against you.
PLAINTIFF'S RESPONSE TO DEFENDANT'S ANSWER
AND NEW MATTER
AND NOW, comes the Plaintiff, John Russell Nicrone, pro se, and respectfully
files the foregoing response to Defendant's Answer and New Matter, and as such,
provides the following:
COUNT 1 - LEGAL MALPRACTICFlNEGLIGENCE
1. Disagree. Plaintiff is amiss as to how there can be a question of his citizenship
or address. However, any support for this averment by Plaintiff will gladly be offered
either at the request of the defense or at the time of trial.
2. Agreed.
3. Agreed.
4. Agreed.
5, Agreed.
6. Agreed.
7. Disagreed. If the Defendant's are truly without information or belief to
ascertain Plaintiff s relative to the merit of issues sought for appeal, then Plaintiff would
like permission to amend his brief to include Gross and Willful Negligence for
recommending issues be raised (for a fee) on appeal in which defendant's, as his counsel,
had no belief in there legitimacy. Moreover, it will be interesting to see what the
Disciplinary Board has to say about this response.
8. Agreed in part, denied in part. It is agreed that the Memorandum Opinion was
issued on June 14,2001, as opposed to July 14,2001, as stated in the original complaint.
However, the remaining averments made following "by way of further response" are not
made in good faith. The reality is, the majority decision was to refuse to hear the appeal
on its merits because of the failure of appellate counsel to file a Concise Statement as
required by Pa.R.A.P 2119(t). That is the bottom line!
9. Agreed.
2
10. Agreed. By way of further response, the fact that Plaintiff filed his P.C.R.A.
petition pro se, and is now working with court appointed counsel strongly supports his
assertion that he could no longer afford counsel and did all of his own research,
11. Disagree. The date of the filing of the Plaintiffs P.c.R.A. petition and the
claims made against the Defendant's are a matter of record. However, if the Defendant's
require a copy of the Plaintiff s criminal docket, or the petition itself, Plaintiff will gladly
give them one either at their request or when it is presented as evidence at trial.
12. Disagree. Again, the Judge's Order is a matter of record, Plaintiff will be
happy to present a copy to the defense of the Order reinstating his rights to direct appeal
nunc pro tunc as a result of the ineffective assistance afforded him on appeal at their
request, or as evidence during trial,
13. Agreed in part, denied in part. By way of further response, Plaintiff finds it
unbelievable that Defendant Breschi is willing to assert, by inference, that the ordinary
care, skill and diligence required of an attorney consists of ignoring the published Rules
of Appellate Procedure,
14. Agreed.
15. Agreed.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny
Defendants Answer and New Matter.
COUNTII-NEGLIGENCE
16. Agreed.
3
17. Agreed in part, denied in part. By way of further response, the Plaintiff has a
bill from Shumaker Williams, p.c., which itemizes the number of hours each defendant
spent on the research and preparation of Plaintiff s appeals; as well as, again, a copy of
all court documents concerning the scope of defendant's ineffectiveness. Plaintiff will be
happy to provide a copy of the itemized bill (although it is hard to believe they don't have
one) and the court decisions either at the request of defense or as evidence at trial.
18, Agreed in part, denied in part, By way of further response, Plaintiff finds it
unbelievable that Defendant Swauger is willing to argue, by inference, that the ordinary
care, skill and diligence, required of an attorney consists of ignoring the published Rules
of Appellate Procedure,
19. Agreed.
20. Agreed.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny
Defendant's Answer and New Matter,
COUNT III - VICARIOUS LIABILITY
21. Agreed.
22. Agreed.
23. Agreed. By way of further response, Plaintiff will gladly provide proof at the request
of the defense or at the time of trial.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny
Defendant's Answer and New Matter.
4
NEW MAITER
24. Agreed.
25. Denied. 42 Pa.C.S.~5502(a) reads, "The time within which a matter must be
commenced under this chapter shall be computed, except as otherwise provided by
subsection (b) or by any other provision of this chapter, from the time the cause of action
accrued, the criminal offense was committed or the right of appeal arose." The cause of
action in this matter accrued from June 14,2001, the day the appeal filed on Plaintiffs
behalf by the Defendant's was denied without review of the merits for their failing to file
a Concise Statement as required by Pa.R.A.P. 2119(t). 42 Pa.C.S. ~5524(7) reads, "The
following actions and proceedings must be commenced within two years: Any other
action or proceeding to recover damages for injury to person or property which is
founded on negligent, intentional, or otherwise tortious conduct or any other action or
proceeding sounding in trespass, including deceit or fraud, except an action or proceeding
subject to another limitation specified in this subchapter," Plaintiffs damages were
directly caused by the negligent conduct of the Defendant's, and said conduct has been
deemed negligent by the Pennsylvania Judicial system. No one but the Defendant's
failed to follow the appellate procedures as proscribed by the published rules. Moreover,
Defendant attorneys were deemed ineffective and Plaintiffs appellate rights were
reinstated as a result of said ineffectiveness.
27. Denied. No one else was involved, in any way, with the failure of defendant
attorneys, unless the defense is alleging that the Superior Court was negligent in
5
expecting them to follow the rules of procedure and the lower court was negligent in
finding the defendant attorneys ineffective.
28. Denied. No one else was involved, in any way, with the failure of defendant
attorneys, unless the defense is alleging that the Superior Court was negligent in
expecting them to follow the rules of procedure and the lower court was negligent in
finding the defendant attorneys ineffective.
29. Denied. No one else was involved, in any way, with the failure of defendant
attorneys, unless the defense is alleging that the Superior Court was negligent in
expecting them to follow the rules of procedure and the lower court was negligent in
finding the defendant attorneys ineffective.
30. Denied. Plaintiff has not entered into any agreement, in any way, with
anyone.
31. Plaintiff is without sufficient information to admit or deny the averments
contained in paragraph 31 of Defendants' New Matter, and as such, the averments
contained in paragraph 31 of Defendants' New Matter are specifically denied, and strict
proof thereof is demanded at the time of trial.
32. Plaintiff is without sufficient information to admit or deny the averments
contained in paragraph 32 of Defendants' New Matter, and as such, the averments
contained in paragraph 32 of Defendants' New Matter are specifically denied, and strict
proof thereof is demanded at the time of trial.
33. Plaintiff is without sufficient information to admit or deny the averments
contained in paragraph 33 of Defendants' New Matter, and as such, the averments
6
contained in paragraph 33 of Defendants' New Matter are specifically denied, and strict
proof thereof is demanded at the time of trial. ,
34. Plaintiff is without sufficient information to admit or deny the averments
contained in paragraph 34 of Defendants' New Matter, and as such, the averments
contained in paragraph 34 of Defendants' New Matter are specifically denied, and strict
proof thereof is demanded at the time of trial.
35. Denied. Plaintiffs Complaint has been plead very specifically. Namely,
paragraphs 8, 13, 13(a), 14, 15, 17, 18, 18(a), 19,20, and 23.
36. Denied. Again, Plaintiffs Complaint alleges specific damages. In paragraphs
14, 15, 19,20, and 23 he alleges mental anguish and suffering as a result of negligence on
the part of the Defendants.
37. Denied. Plaintiff has clearly suffered damage and has plead so.
38. Plaintiff is without sufficient information to admit or deny the averments
contained in paragraph 38 of Defendants' New Matter, and as such, the averments
contained in paragraph 38 of Defendants' New Matter are specifically denied, and strict
proof thereof is demanded at the time of trial.
39. Agreed.
7
WHEREFORE, as a result of all of the aforementioned reasons, and as a result of
Defendants' obvious negligence, Plaintiff prayerfully requests this Honorable Court to
deny all of Defendants' objections by way of Answer and New Matter and to grant
Plaintiff a finding of a prima facie case of Negligence for the purpose of judicial
expediency.
Respectfully submitted,
~~
Pro se plaintiff
EF-5026
S.c.!. Dallas
1000 Follies Road
Dallas, PA 18612-0286
8
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
: Docket number 02-2009
v,
: Civil Action - Law
DAVID R. BRESCHI, MELISSA A. SWAUGER,
: Jury Trial Demanded
& SHUMAKER WILLIAMS, P.c.,
Defendants
CERTIFICATE OF SERVICE
I, JOHN R. NICRONE, hereby certify that a true and correct copy of the foregoing
Appellant's Brief was served upon the following in the manner indicated below:
FIRST CLASS - U.S. MAIL:
Edwin A.D. Schwartz
2040 Linglestown Road
Suite 302
Harrisburg, P A 17110
~~
Jo . Nicrone
p se Appellant
S,c.1. Dallas
1000 Follies Road
Dallas, PA 18612
Dated: June 3, 2002
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McKISSOCK & HOFFMAN, P.C.
By: Edwin A.D. Schwartz, Esquire
Attorney I.D. #75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
ATTORNEYS FOR DEFENDANTS, DAVID R.
BRESCHI, MELISSA A. SWAUGER &
SHUMAKER WILLIAMS, P.C.
JOHN RUSSELL NICRONE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
v.
DOCKET NO. 02-2009
DAVID R. BRESCHI, MELISSA A. SWAUGER CIVIL ACTION - LAW
& SHUMAKER WILLIAMS, P.C.,
Defendants JURY TRIAL DEMANDED
DEFENDANTS, DAVID R. BRESCHI, MELISSA A. SWAUGER &
SHUMAKER WILLIAMS. P,C.'S MOTION FOR SUMMARY JUDGMENT
AND NOW, come Defendants, David R. Breschi, Melissa A. Swauger & Shumaker
Williams, P.C., (hereinafter referred to collectively as "Defendants" unless otherwise indicated by
syntax) who hereby request this Honorable Court enter Summary Judgment in their favor pursuant
to Pennsylvania Rule of Civil Procedure 1035.2, in that Plaintiff, John Russell Nicrone (hereinafter
referred to as "Plaintiff") cannot, as a matter of law, maintain a cause of action against Defendants
and that, as a matter of law, Defendants are entitled to judgment. In support of their Motion,
Defendants aver as follows:
1. Plaintiff commenced the instant action against Defendants by the filing of a
Complaint in the Court of Common Pleas of Cumberland County on April 24, 2002.
2. Plaintiff's Complaint attempts to set forth claims of Legal Malpractice/Negligence
against each of the individual Defendants (David R. Breschi, Melissa A. Swauger) and a claim
of vicarious liability against Defendant Shumaker Williams, P.C. A true and correct copy of
Plaintiffs Complaint is attached hereto and made a part hereof as Exhibit "A".
3. The crux of the Plaintiffs claims pertain to allegations that Defendants Breschi
and Swauger did not follow the Pennsylvania Rules of Appellate Procedure thereby causing the
appeal of Plaintiff's criminal sentence to be dismissed by the Pennsylvania Superior Court.
4. Factually, Plaintiff in this matter was involved in a home invasion robbery and
assault carried out with four (4) co-actors. During the course of the robbery Plaintiff wielded a
handgun which he used to forcibly strike a victim. As a result of Plaintiff's entry of a guilty plea,
the Honorable Judge Clark, Court of Common Pleas Dauphin County, sentenced Plaintiff to a
sentence of 9 to 25 years incarceration to be followed by extensive probation.
5. Plaintiff retained and requested Defendants to file an Appeal of the Judgment of
Sentence issued by Judge Clark wherein Plaintiff wished to challenge the discretionary aspects
of the sentence imposed by Judge Clark.
6. Defendants drafted and filed a Brief with the Pennsylvania Superior Court setting
forth the basis for Plaintiff's appeal challenging Judge Clark's Judgment of Sentence. However,
the Superior Court did not address the merits of Plaintiffs Appeal due to the Court's
determination that the Brief as submitted did not contain "a concise statement of the reasons
relied upon in support of the request for an appeal as required by Pennsylvania Rule of
Appellate Procedure 2119(f)." A true and correct copy of the Superior Court Opinion dated June
14, 2001, is attached hereto and made a part hereof as Exhibit "B".
7. Notwithstanding the majority's determination that the absence of "a concise
statement of reasons relied upon in support of the Request for Appeal" precluded the Court from
addressing the merits of the appeal, the Honorable Judge Cavanaugh of the Pennsylvania
Superior Court issued a concurring Memorandum Opinion wherein he found that the Brief
submitted on behalf of the Plaintiff by Defendants was "in substantial compliance sufficient for
our [Superior Court] review." A true and correct copy of the Honorable Judge Cavanaugh's
concurring Memorandum Opinion dated June 14, 2001, is attached hereto and made a part
hereof as Exhibit "C".
8. In light of the fact the Superior Court declined to review the merits of Plaintiff's
appeal due to the perceived absence of a concise statement of facts relied upon for appeal, the
Honorable Judge Clark, Court of Common Pleas of Dauphin County, issued an Order dated
November 5, 2001 granting Plaintiff leave to file a new direct appeal to the Superior Court nunc
pro tunc." A true and correct copy of the Honorable Judge Clark's Order dated November 5,
2001, is attached hereto and made a part hereof as Exhibit "0".
9. On March 21, 2002, Plaintiff, by and through his appointed counsel filed a Brief in
Support of his Appeal to the Superior Court of Pennsylvania.
10. On July 31, 2002, Pennsylvania Superior Court issued a Memorandum Opinion
wherein the Court affirmed the Judgment of Sentence issued by the Trial Court and found that
Plaintiff's Appeal was without merit. A true and correct copy of the Superior Court's
Memorandum Opinion dated July 31,2002 is attached hereto and made a part hereof as Exhibit
"E". (Emphasis added).
11. In light of the fact the Superior Court has now issued an Opinion denying
Plaintiff's Appeal which was permitted on a nunc pro tunc basis, the Plaintiff cannot, as a matter
of law, maintain a cause of action of legal malpractice against Defendants.
12. Plaintiff's Complaint is completely devoid of any allegations of actual loss or
damage allegedly incurred as a result of Defendants actions. Inasmuch as Plaintiff is unable to
plead legally cognizable damages, Plaintiff's instant action cannot survive the instant Motion for
Summary Judgment.
13. It is well established in Pennsylvania juris prudence that in order to maintain a
claim for legal malpractice, a plaintiff may only be compensated for his actual losses. See
Kituskie v. Korbman, 714 A.2d 1027 (Pa. 1998) (emphasis added). "When it is alleged that an
attorney has breeched his professional obligations to his client, an essential element of the
cause of action... is proof of actual loss." Duke v. Anderson, 275 Pa. Super. 65,418 A.2d 613,
617 (1980). See also Carneaie Mellon University v. Schwartz, 105 F.3d, 863 (3d Cir. 1997)
(wherein the court reiterated that an action for professional negligence under Pennsylvania Law
requires the proof of actual loss. "The mere breach of a professional duty, causing only nominal
damages, speculative harm or threat of future harm - not yet realized - does not suffice to
create a cause of action for negligence. ").
14. In light of the fact the Pennsylvania Superior Court affirmed the trial court's
Judgment of Sentence following the Plaintiff's Second Appeal nunc pro tunc, Plaintiff cannot, as
a matter of law, establish the outcome would have been different absent the alleged negligence
of Defendants. See Qenerallv. Trauma Service GrouD v. Hunter. MacClean. Exlev & Dunn.
P.c., 2000 U.S. Dist. LEXIS 3712 (E.D. Pa. 2000)(Plaintiff's malpractice action against former
counsel must fail because Plaintiff could not prove that the outcome would have been different.)
"It is only after the Plaintiff proves he would have recovered a judgment in the underlying action
that the Plaintiff can then proceed with proof that the attorney he engaged to prosecute or
defend the underlying action was negligent in the handling of the underlying action and that
such negligence was approximate cause of the Plaintiff's loss since it prevented the Plaintiff
from being properly compensated for his loss". Kituskie v. Korbman, 714 A.2d 1027 (Pa. 1998).
15. Inasmuch as Plaintiff cannot plead legally cognizable damages in the instant
matter, Plaintiff cannot establish the prima facie elements necessary to proceed with a legal
malpractice/negligence claim against Defendants and, therefore, the entry of Summary
Judgment in favor of the Defendants is proper as a matter of law.
WHEREFORE, Defendants, David Breschi, Melissa Swauger and Shumaker Williams,
respectfully requests this Honorable Court enter Summary Judgment in their favor and dismiss
Plaintiff's Complaint with prejudice. Defendants further request all such further relief as this
Court may ultimately determine as being proper and just.
Respectfully submitted,
8Y:&(~P'C
Edwin A.D. S ~rtz. ESQu;..
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Date: ~/..R~~ ~
Attorneys for Defendants, David
Breschi, Melissa Swauger &
Shumaker Williams, P.C.
-- -----~-
Exhibit A
'-".-.- ._."-~.~ -~--,---
'"....."..,_.._..,."..~'""-~,,~-----
,
A PP 2 5 2007_])
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
Civil Action - Law
DAVID R. BRESCHI, ESQ., NO,
MELISSA. A. SWAUGER, ESQ,
AND SHUMAKER WILLIAMS, P.C.,:
Defendants :
OF 2002-~ r
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NOTICE TO DEFEND
You have been sued in court.
If you wish to defend
against the claims set forth in the following pages, you
must
take
action
within twenty (20)
days
after
this
complaint
and
notice
are served, by entering a wri tten
appearance personally or by attorney and filing in writing
with the court your defenses or ojections to the claims set
forth against you.
You are warned that if you fail to do so
the case may proceed wi thout you and
a
j udgmen t ma y be
entered against you by the court wi thout further notice for
any other claim or relief requested by the plaintiff, You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
TRUE COpy FROM RECORO
In Testimony whereof, I here unto set my hand
and the seal ~f said c~ Carlisle, Pa.
Ttri~;~'lJY}u~J!~?:J4~'. , .;)b{i~
I::.\f"fj' PIDthonotary
"
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA)7013
1-800-990-9100
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHN RUSSELL NICRONE,
Plaintiff
Civil Action - Law
v.
DAVID R. BRESCHI, ESQ., NO.
MELISSA A. SWAUGER, ESQ.
AND SHUMAKER WILLIAMS, P.C.,:
Defendants :
OF 2002
COM P L A I N T
LEGAL MALPRACTICE
NEGLIGENCE
1. Pro se plaintiff, John Russell Nicrone, is a citizen
of the Commonwealth of Pennsylvania with his
address
at
S.C.!. Dallas,
1000
Follies Road, Dallas, PA 18612-0286.
2. Defendant David R. Breschi, attorney at law, is an
employee and agent of Shumaker Williams, P.C., and is duly
licensed
to
practice
law
in
the
Commonwealth
of
Pennsylvania, Defendant works out of the office at Shumaker
Williams,
P.C.,
Pennsylvania Center, 3425 Simpson Ferry
Road, Camp Hill, PA 17011.
3. Defendant Melissa A, Swauger, attorney at law, is an
employee of Shumaker Williams, P.C" and is duly licensed to
practice law in the Commonweal th of Pennsylvania. Defendant
works
out
of
the
office
at Shumaker Williams,
P.C. ,
Pennsylvania Center, 3425 Simpson Ferry Road, Camp Hill, PA
17011.
4. Defendant Shumaker Wil,liams is a professional
corporation (attorney at law) duly licensed to operate as
such in the Commonwealth of Pennsylvania with offices at the
Pennsylvania Center, 3425 Simpson Ferry Road, Camp Hill, PA
17011.
5, On or about August 21, 2000, Russell and Joan
Nicrone~ parents of the plaintiff, consulted wi th attorney
David R. Breschi concerning the plaintiff'S recent criminal
conviction. Mr. Breschi had been the plaintiff's attorney of
record through most of the preceding thus far.
6. Attorney Breschi, employee and agent for Shumaker
Williams, P.C., by oral agreement, accepted plaintiff's case
on behalf of Shumaker Williams, P,C., and to pursue a direct
appeal concerning the discretionary aspects of sentencing to
the Superior Court for a flat fee of $2500.00.
7. Plaintiff believes that the appeal concerned
meri torious issues, otherwise attorney Breschi never would
have recommended said course of action.
8. On
(Cavanaugh,
July
14, 2001, a panel
of the
Stevens and Tamilia, JJ.)
issued
Super-ior Court
an unpubl i shed
memorandum opinion affirming the judgment
However, the Superior Court affirmed the
sentence without addressing the merit of
Plaintiff's allegations of error because they
of sen tence.
judgment of
any of the
were not set
forth in
support
a concise
statement of the reason
of the
request
for
appeal
relied upon
required
in
as
by
Pa.R.A.P. 2119(f).
So,
in
essence, no appeal was filed.
9. Plaintiff was representeq at all times bi David
R. Breschi and Melissa A. Swauger, attorneys employed by the
professional corporation of Shumaker Williams.
10. Plaintiff was required to devote the two months
following the dismissal of his appeal for failure to follow
the rules of procedure, exclusively trying to find a way to
save his appellate rights, as he could no longer afford
counsel.
11. After
well
over
six
weeks worth of intensive
research in an area in which, quite frankly, plaintiff was
completely ignorant, on or about August 8, 2001, plaintiff
filed a pro se petition under the Post Collateral Relief Act
claiming ineffective assistance of appellate counsel and a
violation of his sixth amendment rights as a result of said
ineffectiveness.
12. On
or
about
November 5,
2001,
the
Honorable
Lawrence F. Clark, Jr., Judge, Court of Common Pleas of
Dauphin County, Pennsylvania, found defendant Breschi, and
consequently all those involved with his prior direct
appeal, ineffective, and granted plaintiff's request for
nunc pro tunc appellate review.
13. Defendant attorney Breschi, by failing to follow
the published (and mandatory) Pennsylvania Rules of
Appellate Procedure was negligent in that:
a) he failed to exercise the ordinary care, skill and
diligence required of an attorney.
14, because of the defendant's negligence, plaintiff
has been forced to endure another. year of mental anguish and
suffering wondering what the outcome of his appeal will be.
15. Because of the defendant's negligence, plaintiff
has been forced to defend himself: to spend dozens of hours
doing research in an area in which he was completely
ignorant, and t.o do so without
was effect.i vely wi thout. funds.
afford new counsel.
WHEREAS, plaintiff demands judment against defendant in
excess of $5,000.00 plus int.erest and costs,
legal assistance because he
Plaintiff simply could not.
SECOND COUNT
NEGLIGENCE
16. Paragraphs 1-15, inclusive, are incorporat.ed herein
and made a part hereof by reference.
17. At.torney defendant Melissa A. Swauger was credit.ed
on the defendant's bi 11 for having devoted over .forty (40)
hours to the research and preparation of plaintiff I s direct.
appeal but was unable to follow the st.andard and required
Pennsylvania Rules of Appellate Procedure.
18. Defendant, by failing to follow the required Rules
of Appellate procedure was negligent in that:
a) she failed to exercise the ordinary care, skill and
diligence of an attorney.
19. Because of the defendant's negligence, plaintiff
has been forced to endure another. year of mental anguish and
suffering wondering what the outcome of his appeal will be.
20. Because of the defendant's negligence, plaintiff
has been forced to defend himself: to spend dozens of hours
doing research in an area in which he was completely
ignorant and to do so wi thout legal assistance because he
was effectively without funds. Plaintiff simply could not
afford new counsel.
WHEREAS, plaintiff demands judgment against defendant
in excess of $10,000.00,
THIRD COUNT
VICARIOUS LIABILITY
21. Paragraphs 1-20 inclusive, are incorporated herein
and made a part hereof by reference.
22. Both attorney defendant Breshci and attorney
defendant Swauger are employees (or were employe.es at the
time of their negligence) of Shumaker Williams, P,c.
23, As a result of the failure of attorneys defendant
Breschi and Swauger to exercise the ordinary care, skill and
diligence of an attorney, and of their being employed at the
time of said failing by Shumaker Williams, P.C., Shumaker
Williams, P.C. is responsible for said negligence of both
attorneys under the theory of Vicarious Liability.
WHEREAS,
plaintiff
demands
judgment
against
defendant inexcess of $20,000.00
Respectfully submitted,
Date:
Y---,fj-o.(
J Russell
EF-S026
pro se plaintiff
S.C.I. Dallas
1000 Follies Road
Dallas, PA 18612-0286
VERIFICATION
I verify that the statements made herein are true and
correct. I understand that false statements made herein are
subject to the penalties of Pa.C.S.~4904 relating to unsworn
falsification to authorities.
n Russell Nicrone
Exhibit B
....
J-A18008-01
1
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN RUSSELL NICRONE,
Appellant
No. 1800 MDA 2000
Appeal from the Judgment of Sentence April 25, 2000
In the court of Common Pleas of Dauphin County
Criminal at No. 1872 CD 1999
BEFORE: CAVANAUGH, STEVENS, and TAMIUA, JJ.
MEMORANDUM:
, F i i.--e -0 JUJl \ " -
This is an appeal from the judgment of sentence entered by the Court
of Common Pleas of Dauphin County on April 25, 2000, following Appellant's
plea of guilty to charges of robbery, criminal conspiracy, burglary,
aggravated assault, and criminal mischief. We affirm the judgment of
sentence.
Following an incident that occurred on November 11, 1995, Appellant
and four codefendants were arrested and charged with the above offenses.
On February 14, 2000, Appellant entered a plea of guilty to all charges and,
thereafter, was sentenced to an aggregate nine (9) to twenty-five (25) year
,
term of imprisonment on the charges of robbery and aggravated assault.
The court also imposed fines, costs, and probation on the remaining
charges. Appellant filed a Motion to Modify Sentence that was denied by the
court by Order issued July 31, 2000. The present appeal followed.
J-A18008-01
Herein, Appellant contends that the trial court erred in sentencing
when it failed to state on the record its reasons for imposing disparate
sentences on Appellant and two co-defendants. Appellant further argues
that his right to equal protection was violated when the court imposed the
unequal sentences in question and that the sentence he received was
manifestly excessive. Finally, Appellant contends that, in its sentencing
order, the court failed to indicate he is eligible to receive work release upon
serving his minimum sentence.
Appellant challenges the discretionary aspects of his sentence. See
Commonwealth v. Pennington, 751 A.2d 212 (Pa.Super. 2000) (a claim
that a sentence imposed was manifestly excessive is a challenge to the
discretionary aspects of sentencing); Commonwealth v. Losch, 535 A.2d
115 (Pa.Super. 1987) (discussing disparate sentences between codefendants
as a discretionary aspect of sentencing). A defendant who has pleaded
guilty may challenge the discretionary aspects of his sentence as long as the
defendant did not agree to a negotiated sentence as part of the plea
agreement. Commonwealth v. 3ohnson, 758 A.2d 1214, 1216 (Pa.Super.
2000). A review of the record indicates that Appellant pleaded guilty
pursuant to a plea agreement; however, the agreement did not include a
specific negotiated sentence. Therefore, Appellant may challenge
discretionary aspects of his sentence.
When an appellant raises issues that implicate the discretionary
- 2 -
J-A18008-01
aspects of his sentence, he must petition this Court for permission to appeal,
as the right to appeal from the discretionary aspects of sentencing is not
absolute. Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893 (1996).
Before a challenge to the sentence will be heard on the merits, an appellant,
in order to invoke this Court's jurisdiction, must set forth in his brief a
separate concise statement of reasons relied upon in support of his appeal.
Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d
17 (1987). The appellant "must demonstrate that a substantial question
exists that the trial judge's actions were either inconsistent with the specific
provisions of the Sentencing Code, or contrary to the norms which underlie
the sentencing process." Commonwealth v. Rickabaugh, 706 A.2d 826,
847 (Pa.Super. 1997) (quotations and citations omitted).
Herein, Appellant has failed to include in his brief a concise statement
of the reasons relied upon In support of the request for appeal, as required
by Rule 2119(f), and the Commonwealth has objected to the omission
thereof. 1 "'[W]e may not reach the merits of [the] claims' where the
Commonwealth has object[ ed] to the omission of the statement."
Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa.Super. 2000) (quoting
1 In his reply brief, Appellant argues that this Court should review
Appellant's claims regarding the discretionary aspects of his sentence since
he "set forth his reasons for allowance of appeal in a separate section of his
Brief. . .." Reply Brief of Appellant at 2. A review of Appellant's Brief,
however, reveals no such separate, designated section so as to satisfy the
requirements set forth by the Supreme Court in Tuladziecki, supra.
- 3 -
]-A18008-01
Commonwealth v. Rodriquez, 673 A.2d 962, 968 (Pa.Super. 1996)). As
such, we are precluded from addressing the merits of Appellant's sentencing
claims. Commonwealth v. Huckleberry, 631 A.2d 1329 (Pa.Super.
1993).
Based on the foregoing, the judgment of sentence is affirmed.
Affirmed.
CONCURRING MEMORANDUM BY CAVANAUGH, J.
- 4 -
Exhibit C
c'
J.A18008/01
,;
COMMONWEALTH OF PENNSYLVANIA,
Appellee
IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN RUSSELL NICRONE,
Appellant
No. 1800 MDA 2000
Appeal from the Judgment of Sentence April 25, 2000
In the Court of Common Pleas of Dauphin County
Criminal, at No. 1872 CD 1999
BEFORE: CAVANAUGH, STEVENS, and TAMIUA, JJ.
CONCURRING MEMORANDUM BY CAVANAUGH, J.:
. -- - -. - - _.-
F I.L E 0 JUN 1 4 lO01
While I would agree that appellant's statement for reasons for
allowance of appeal of his sentence is not in precise literal compliance with
Pa.R.A.P. 2119(f), I would find that it is in substantial compliance sufficient
for our review. See appellant's brief, pp. 14, 22-24. I would, nevertheless,
,
find no merit to the appeal. The court's statements as to the facts of the
case, with emphasis on the assaultive conduct in which appellant
participated, is a clear basis for the alleged impermissibly disparate
sentence. A sentence which reflects the variant levels of actual criminal
conduct by the actors clearly does not impinge upon equal protection rights.
Since this case involves a state sentence, appellant's participation in work
I
release is a matter for state authorities, not the sentencing court. I would
find that the petition for allowance of appeal should be denied and quash the
appeal. 42Pa.C.S.A. ~9781(b).
]-A18008-01
Herein, Appellant contends that the trial court erred in sentencing
when it failed to state on the record its reasons for imposing disparate
sentences on Appellant and two co-defendants. Appellant further argues
that his right to equal protection was violated when the court imposed the
unequal sentences in question and that the sentence he received was
manifestly excessive. Finally, Appellant contends that, in its sentencing
order, the court failed to indicate he is eligible to receive work release upon
serving his minimum sentence.
Appellant challenges the discretionary aspects of his sentence. See
Commonwealth v. Pennington, 751 A.2d 212 (Pa.Super. 2000) (a claim
that a sentence imposed was manifestly excessive is a challenge to the
discretionary aspects of sentencing); Commonwealth v. Losch, 535 A.2d
115 (Pa.Super. 1987) (discussing disparate sentences between codefendants
as a discretionary aspect of sentencing). A defendant who has pleaded
guilty may challenge the discretionary aspects of his sentence as long as the
defendant did not agree to a negotiated sentence as part of the plea
agreement. Commonwealth v. .Johnson, 758 A.2d 1214, 1216 (Pa.Super.
2000). A review of the record indicates that Appellant pleaded guilty
pursuant to a plea agreement; however, the agreement did not include a
specific negotiated sentence. Therefore, Appellant may challenge
discretionary aspects of his sentence.
When an appellant raises issues that implicate the discretionary
- 2 -
,i
J-A18008-01
aspects of his sentence, he must petition this Court for permission to appeal,
as the right to appeal from the discretionary aspects of sentencing Is not
absolute. Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893 (1996).
Before a challenge to the sentence will be heard on the merits, an appellant,
in order to Invoke this Court's jurisdiction, must set forth in his brief a
separate concise statement of reasons relied upon In support of his appeal.
Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d
17 (1987). The appellant "must demonstrate that a substantial question
exists that the trial judge's actions were either inconsistent with the specific
provisions of the Sentencing Code, or contrary to the norms which underlie
the sentencing process." Commonwealth v. Rickabaugh, 706 A.2d 826,
847 (Pa.Super. 1997) (quotations and citations omitted).
Herein, Appellant has failed to include in his brief a concise statement
of the reasons relied upon in support of the request for appeal, as required
by Rule 2119(f), and the Commonwealth has objected to the omission
thereof. 1 "'[W]e may not reach the merits of [the] claims' where the
Commonwealth has. object[ed] to the omission of the statement."
Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa.Super. 2000) {quoting
1 In his reply brief, Appellant argues that this Court should review
Appellant's claims regarding the discretionary aspects of his sentence since
he "set forth his reasons for allowance of appeal in a separate section of his
Brief. . . ." Reply Brief of Appellant at 2. A review of Appellant's Brief,
however, reveals no such separate, designated section so as to satisfy the
requirements set forth by the Supreme Court in Tuladziecki, supra.
- 3 -
.'
,
J-A18008-01
Commonwealth v. Rodriquez, 673 A.2d 962, 968 (Pa.Super. 1996)). As
such, we are precluded from addressing the merits of Appellant's sentencing
claims. Commonwealth v. Huckleberry, 631 A.2d 1329 (Pa.Super.
1993).
Based on.~he foregoing, the judgment of sentence is affirmed.
Affirmed.
CONCURRING MEMORANDUM BY CAVANAUGH, J.
- 4 -
..~~----~---,___~_~. ..,.,"'~.,.._~ ...0
Exhibit D
JOHN NICRONE
: CRARGES: ROBBERY; CRIMINAL
: CONSPIRACY; BURGLARY;
: AGGRAVATED ASSAULT; CRIMINAL
: MISCHIEF
- ORDER OF COURT
AND NOW, this.S!!day Of~ 2001, after review of the Petitioner's
Amended Petition for Relief Under the Post Conviction Relief Act (PCRA), IT IS HEREBY
ORDERED AND DECREED THAT the Petitioner is granted leave to file a new direct appeal to
the Superior Court of Pennsylvania nunc pro tunc. The Petitioner shall file Notice of Appeal to
the Superior Court within thirty (30) days of the date of this order.
DISTRIBUTION: 11-5- 61 e:- 3: oS
Jeffrey B. Engle, Esquire
Kelly Crawford, Esquire
John Nicrone
129 Market Street, Millersburg, P A 17061
District Attorney's Office
#EF-5026, SCI-Dallas, 1000 Follies Road, Dallas, PA 18612-0286
, : . '"\ '::' 1 \/ r-
- '... '" l.. \>';;: D
20(jj NOV -s P 2: Sb~t
&1H!:t'~N Corlt.IT',
3t/" II
Exhibit E
.
J.S47025-02
COMMONWEALTH OF PENNSYLVANIA,
Appellee
IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN NICRONE,
Appellant
No. 2023 MDA 2001
Appeal from the Judgment of Sentence April 25, 2000
In the Court of Common Pleas of Dauphin County
Criminal at No. 1872 C.D, 1999
BEFORE: MUSMANNO, POPOVICH and CAVANAUGH, JJ,
MEMORANDUM:
FILED JUlSl2002
We have a direct appeal from a judgment of sentence of 9 to 25 years
incarceration to be followed by extensive probation. The only issue (which
we consider) is whether the sentence is manifestly excessive when viewed in
light of the sentences given to similarly situated co-defendants. This case
has had a prior visitation to this court. The majority of the assigned panel
found a failure to meet the requirements of Commonwealth v.
Tuladziecki, 522 A.2d 17 (1987) and Pa.R.A.P. 2119(F). The disposition
was to affirm the judgment of sentence. Consequently, appellant Nicrone
sought collateral relief and was granted leave to file a new direct appeal per
order of the Honorable Lawrence F. Clark, Jr. Hence, this appeal.
Appointed counsel, who obtained the nunc pro tunc appeal right has
now filed an advocates brief under the paradigm of Anders v. California,
J.S47025-02
87 S.Ct. 1396 (S,Ct. 1967) and Commonwealth v. McClendon, 434 A.2d
1185 (pa. 1981).1 Appellant Nicrone has also filed a pro se brief.
Appellant's briefs include a statement of reasons relied upon for
allowance of appeal. In it, appellant argues that disparate sentences have
been imposed upon defendants who were co-defendants. This claim has
been seen as a basis for granting review. 42 Pa.C.S. A. 9781(b).
Commonwealth v. Krysiak, 535 A.2d 165 (pa. Super. 1987). Accordingly,
we grant review, but will readily decide that there is no merit to the
contention. Appellant Nicrone has also furnished a pro se brief on appeal.
There is authority for justifiably refusing to consider a pro se brief in addition
to a counseled brief. Commonwealth v. Ellis, 626 A.2d 1137 (pa. 1993).
However, we have reviewed appellant's pro se brief since our right not to
consider it is in conflict with the rigors of Anders-McClendon wherein
counsel is obliged to advise appellant, inter alia, that he has a right to
proceed pro se. Commonwealth v. Townsend, 693 A.2d 980 (pa. Super.
1997).
We examine the claim that there has been an impermissible disparity
in sentencing. This case involved a house invasion robbery and assault upon
a family which was carried out by five co-actors, four of whom entered the
house. Co-actor Houser carried a knife which he used to stab the husband
1 Counsel has complied with the requirements of Anders-McClendon and
we will grant his petition to withdraw.
2
J.547025-02
victim at least once. Appellant Nicrone wielded a handgun which he used to
strike the same victim on the head. The wife victim was forced to open a
safe from which the assailants took $12,000. The two victims were left
bound at their hands and ankles.
Nicrone admitted, after volunteering for a polygraph, that he carried
the handgun during the entire incident and that he struck victim Ziegler.
All five defendants were charged and eventually pled guilty. At
sentencing, all have the same prior record score (0) under the sentencing
guidelines.
Judge Clark conducted two sentencing hearings. Defendants Ross and
Zimmer were sentenced at the first session to 3 to 15 years incarceration
and 20 years probation. At the second session, defendants Coach, Houser
and appellant were each given the 9 to 25 year sentence described above.
Thus, the disparity is as to two of the defendants, but it is also claimed that
Nicrone should have been more favorably considered than Coach or Houser.
First, Zimmer and Ross were the most peripherally involved. Neither
possessed a weapon and one did not enter the premises. As to Houser and
appellant Nicrone, both possessed weapons and both used them on victim
Ziegler. Both entered the second floor of the invaded residence and
confronted the victims in their bedroom. The court noted that only fortunate
circumstances saved the assault on Ziegler from being a homicide. The
employment of weapons certainly fixed appellant and Houser with the same
3
J.S47025-02
degree of criminal culpability. There had been a period in excess of four
years from the time of the horrific crime and fhe sentencing. Co-defendant
Coach had involved himself in several similar crimes in this period. He, thus,
demonstrated a heightened rehabilitative need which placed him in a
sentencing category equal to appellant and Houser. See 42 Pa,C.S,A.
~9721(b). As to all three of the more serious sentences, the court properly
considered the gravity of the offense and the impact on the lives of the
victims. The fact that appellant, during the four years, had a good record of
employment and personal conduct, does not diminish his involvement as a
key actor and aggressor in this grevious crime. Appellant's good conduct
during this unusually extended period from the event to the sentencing,
does not merit a reduced sentence although his early steps toward
rehabilitation certainly should be favorably considered by the Board of
Probation and Parole at the appropriate time.
The sentences were within the standard range of sentence and are not
impermissibly disparate. Commonwealth v. Russell, 460 A.2d 316 (pa.
Super. 1983); Commonwealth v. Smith, 673 A.2d 893 (pa. 1996);
Commonwealth v. Gelormo, 475 A.2d 765 (pa. Super. 1984). Judge
Clark conducted a model sentencing proceeding and fully articulated his
reasons for sentencing on the record. Commonwealth v. Monson, 615
A.2d 343 (pa. Super. 1992). We have said that we would review appellant's
pro se brief and we have done so. To the extent that he argues that
4
J.S47025-02
disparate sentences have improperly been imposed, we have addressed the
issue. Appellant argues, in addition, that it was error not to consider the
Deadly Weapon Enhancement for co-defendants Ross and Zimmer. The
Commonwealth has not appealed. This issue and the present appeal is not a
proper vehicle for arguing for the enhancement of a co-defendant's
sentence.
Appellant also argues that subsequent conduct either must be or may
not be considered. The previous discussion relates to the subsequent
conduct of Coach and appellant. Appellant also engages in a series of "did
not consider" arguments. We have consistently held that such arguments do
not rise to the level of substantial questions. Commonwealth v.
Montalvo, 641 A.2d 1176 (pa. Super. 1994); Commonwealth v. Minott,
577 A.2d 928 (pa. Super. 1990); Commonwealth v.3ones, 637 A.2d 1001
(pa. Super. 1994).
Finally, appellant Nicrone, in his pro se brief, raises two additional
issues beyond the disparate sentencing issue. These issues relate to 1) a
claim of merger, and, 2) the start date for his probation sentence. Neither
of these two issues are within the statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b) which was filed by appellant's counsel
on September 12, 2000 relating to his first appeal, or within the statement
provided and filed December 27, 2001 relating to the present appeal relating
to the present appeal nunc pro tunc.
5
.
J.S47025-02
On October 28, 1998, our supreme court decreed:
However, from this date forward,in order to preserve
their claims for appellate review, Appellants must comply
whenever the trial court orders them to file a Statement of
Matters Complained of on Appeal pursuant to Rule 1925.
Any issues not raised in a 1925(b) statement will be
deemed waived.
Commonwealth v. Lord, 719 A.2d 306 at 309.
Instantly, pursuant to court order, appellant's attorneys duly filed
Pa.R.C.P. 1925(b) statements which did not include the issues sought to be
raised by appellant in his pro se brief. The issues are therefore waived.
While we have considered the pro se brief as previOusly explained, there is
nothing about the Anders-McClendon doctrine which would enable the
defendant to enlarge his appeal rights. Additionally, the issues are waived
since they were not raised in appellant's motion to modify sentence in the
trial court.
Judgment of sentence affirmed.
Petition of counsel to withdraw granted.
6
J.547025-02
Date:
7
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CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Motion for Summary
Judgment upon the person(s) and in the manner indicated below, which service satisfies the
requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the
United States Mail, first-class postage prepaid, addressed as follows:
John Russell Nicrone, EF-5026
SCI Dallas
1000 Follies Road
Dallas, PA 18612-0286
Attorneys for Defendants, David R. Breschi,
Melissa A. Swauger & Shumaker Williams,
P.C.
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McKISSOCK & HOFFMAN, P.C.
By: Edwin A.D. Schwartz, Esquire
Attorney 1.0. #75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
ATTORNEYS FOR DEFENDANTS, DAVID
BRESCHI, MELISSA SWAUGER &
SHUMAKER WILLIAMS, P.C.
JOHN NICRONE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
DOCKET NO. 02-2009
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
v.
DAVID BRESCHI, MELISSA SWAUGER &
SHUMAKER WILLIAMS, P.C.,
Defendants
DEFENDANTS. DAVID R. BRESCHI. MELISSA A. SWAUGER &
SHUMAKER WILLIAMS. P,C.'S MOTION FOR PROTECTIVE
ORDER AND A STAY OF DISCOVERY
AND NOW, come Defendants, David R. Breschi, Melissa A. Swauger & Shumaker
Williams, P.C., (hereinafter referred to collectively as "Defendants" unless otherwise indicated by
syntax) who hereby request this Honorable Court to grant Defendants' Motion for Protective Order
and a Stay of Discovery pursuant to Pennsylvania Rules of Civil Procedure 4012 and 4013. In
support of their Motion, Defendants aver as follows:
1. Plaintiff commenced the instant action against Defendants by the filing of a
Complaint in the Court of Common Pleas of Cumberland County on April 24, 2002. Plaintiff's
Complaint attempts to set forth claim of Legal Malpractice/Negligence against each of the
individual Defendants (David R. Breschi, Melissa A. Swauger) and a claim of vicarious liability
against Defendant Shumaker Williams, P.C.
2. The crux of the Plaintiff's claims pertain to allegations that Defendants Breschi
and Swauger did not follow the Pennsylvania Rules of Appellate Procedure thereby causing the
appeal of Plaintiff's criminal conviction and sentence to be dismissed by the Superior Court.
3. Since the filing of Plaintiff's Complaint, the Pennsylvania Superior Court has
issued a Memorandum Opinion addressing Plaintiff's challenge to trial court's judgment of
sentence. In that Opinion dated July 31, 2002, the Superior Court found that the Plaintiff's
contentions challenging the discretionary aspects of the trial court's Judgment of Sentence to be
with merit. The Superior Court affirmed the Judgment of Sentence as issued by the trial court.
4. Pennsylvania Rule of Civil Procedure 4012(a) provides, inter alia, that "[u]pon a
motion by a party or by the person from whom discovery or deposition is sought, and for good
cause shown, the court may make an order which justice requires to protect a party or person
from unreasonable ... burden or expense, including one or more of the following: (1) that the
discovery or deposition shall be prohibited. . ." Pa.R.C.P. 4012(a).
5. The Rules also provide that the "filing of a motion for a protective order shall not
stay the deposition . . . or other discovery to which the motion is directed unless the court shall
so order. The court for good cause shown may stay any or all proceedings in the action until
disposition of the motion." Pa.R.C.P. 4013.
6. Simultaneous with the filing of the instant motion, Defendants are filing a Motion
for Summary Judgment. The basis for Defendants' Motion for Summary Judgment is that
Plaintiff cannot plead legally cognizable damages in the instant matter and that Plaintiff cannot
establish the prima facia elements necessary to proceed with a legal malpractice/negligence
claim against Defendants.
7. Due to the dispositive nature of the Defendants' Motion for Summary Judgment
and the overwhelming legal authority in support of such Motion, Defendants contend that it
would be an unreasonable burden and expense to required Defendants to conduct and or
participate in any further discovery while their Motion for Summary Judgment is pending before
this Honorable Court.
8. Due to the Plaintiff's incarceration at SCI Dallas (thereby making communication
by telephone difficult if not impossible) and the need for timely resolution of this matter, no
concurrence in this motion was sought.
WHEREFORE, Defendants, David Breschi, Melissa Swauger and Shumaker Williams,
respectfully requests this Honorable Court grant their request and enter a Protective Order
Staying all further Discovery until the disposition Defendants' Motion for Summary Judgment.
Respectfully submitted,
McKissock & Hoffman, P.C.
/~~/1 ~
By: C ~....J
Edwin A.D. S artz, Esquire
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Date: {'/~~z-
Attorneys for Defendants, David
Breschi, Melissa Swauger &
Shumaker Williams, P.C.
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Motion for Protective
Order and Stay of Discovery upon the person(s) and in the manner indicated below, which
service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a
copy of same in the United States Mail, first-class postage prepaid, addressed as follows:
John Russell Nicrone, EF-5026
SCI Dallas
1000 Follies Road
Dallas, PA 18612-0286
McKissock & Hoffman, PoCo
BY:~~
Edwin A.Do Schwa , squire
Attorney 1.0. No. 75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Attorneys for Defendants, David R. Breschi,
Melissa A. Swauger & Shumaker Williams,
P.C.
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPl'ION OF CASE
(entire caption must be stated in full)
John Russell Nicrone
Plaintiff
V.
David R, Breschi, Esq.,
Melissa A. Swauger, Esq., and
Shumaker Williams, p.e.
Defendants
No. 2002-2Q09
1. State matter to be argued (ie., plaintift's motion for new trial, defendant's demurrer to
complaint, etc.):
Defendants' Motion for .Summary Judgment
2. Identify counsel who will argue case:
(a)
Plaintiff:
John Russell Nicrone (pro se)
(b)
Defendant.
,Edwin A.D, Schwartz, Esq.
SEE A'lTACBED CERTIFICATE OF SERVICE FOR ADDRESSES
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
October 23,
2002 ' ,
Eg~ Esq.
1. D . # 7 5 9 02
2040 Linglestown Rd., Ste, 302
Harrisburg, PA 17110
DATED: 9/9/02
"
.
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Praecipe for Listing
Case for Argument upon the person(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
same in the United States Mail, first-class postage prepaid, addressed as follows:
John Russell Nicrone, EF-5026
SCI Dallas
1000 Follies Road
Dallas, PA 18612-0286
McKissock & Hoffman, P.C.
By:
Edwin A.D. Schwartz,
Attorney I.D. No. 75902
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
(717) 540-3400
Attorneys for Defendants, David R. Breschi,
Melissa A. Swauger & Shumaker Williams,
P.C.
Dated: ~/..z.
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JOHN NICRONE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
DAVID BRESCHI,
MELISSA SWAUGER &
SHUMAKER WILLIAMS,
P.C.,
Defendants
NO. 02-2009 CIVIL TERM
ORDER OF COURT
AND NOW, this 11th day of September, 2002, upon consideration of Defendants'
Motion for Protective Order and Stay of Discovery, a Rule is issued upon Plaintiff to
show cause, if any he has, why the request for a protective order and stay of discovery
should not be granted.
RULE RETURNABLE within 20 days of service. Service shall be made by
Defendants.
PENDING disposition of Defendants' motion, discovery is stayed.
BY THE COURT,
/' John Russell Nicrone, EF-5026
SCI-Dallas
1000 Follies Road
Dallas, PA 18612-0286
Plaintiff, Pro Se
/ Edwin A.D. Schwartz, Esq.
2040 Linglestown Road
Suite 302
Harrisburg, P A 1711 0
Attorney for Defendants
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,IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
John Nicrone,
Plaintiff
Civil Action- Law
v.
Jury Trial Demanded
David Breschi, et aI.,
Defendants
Docket No. 02-2009
Plaintiff's Response to Defendant's
Motion for Summary Judement
AND NOW, comes the pro se Plaintiff, John Russell Nicrone, who asks this Honorable
Court to dismiss the Defendant's Motion for Summary Judgment and in support thereof
respectfully avers the following:
1. Agreed
2. Agreed
3. Agreed
4. Agreed
5. Agreed in part. Denied in part, Plaintiff retained Defendants to file an appeal after
they recommended that the Judgment of Sentence issued by Judge Clark was abuse of his
discretion. The Plaintiff, being at the time completely ignorant of the law, followed their advice.
6. Agreed
7. Agreed
8. Agreed in part, Denied in part. It is agreed that the Honorable Judge Clark, Court of
Common Pleas of Dauphin County, issued an Order dated November 5,2001, granting Plaintiff
leave to file a new direct appeal to the Superior Court nunc pro tunc. However, this is because
he found the Defendants had violated Plaintiff's sixth Amendment right to effective assistance of
counsel.
,"
9. Denied. Plaintiff's counsel tiled an Anders Brief sometime around late February,
Plaintiff petitioned the Superior Court for an extension of time and permission to amend said
brief pro se. These were both granted. On March 21, 2002, Plaintiff filed his amended, pro se,
brief, to the Superior Court of Pennsylvania.
10. Agreed in part. Denied in part. It is agreed that on July 31,2002, the Pennsylvania
Superior Court issued a Memorandum Opinion wherein the Court affirmed the Judgment of
sentence. However, they did not find the entire appeal to be without merit. Some of the issues
were not heard on their merits as a result of there not being in the Statement of Matters
Complained Of.
11. Denied. The appeal tiled by the Plaintiff with the Superior Court was not identical to
the appeal tiled on his behalf by the Defendants, As such, his failure to succeed does not
automatically preclude maintenance of his cause of action. What is more, the Plaintiff has
maintained from the beginning that "to succeed" on appeal could hold different interpretations.
12. Denied. Loss of time is "actual" loss. Loss of sleep is "actual" loss. Moreover, in
Plaintiff's Amended response to Defendants First Set of Interrogatories, he alleged that he had
received a stress induced dermatitis. Plaintiff's Amended Response is attached here to as Exhibit
A.
13. Denied. See 12,
14. Denied. The Plaintiff most certainly can prove, as a matter oflaw, that the outcome
would have been different. The appeal would have been heard! That is the issue. The Plaintiff
has never claimed negligence because he lost on the merit. His cause of action revolves around
the fact that he was forced to endure the "unknown", the lack of finality, as a result of
Defendant's negligence. He suffered for another year as a result of their failure to follow the
Rules of Procedure. The outcome definitely would have been different,.., it would have been
over,
15. Denied. For all of aforementioned reasons,
WHEREFORE, pro se Plaintiff, John Russell Nicrone, requests this Honorable Court to
deny Summary Judgment to the Defendants and to withdraw any Stay of Discovery you may
have granted.
Date: September 12, 2002
:if1YJ
John R. Nicrone, EF5026
S.C.I, Dallas
1000 Follies Road
Dallas, PA 18612
- 1-t
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.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTy, PENNSYL VANIA
John Nicrone,
Plaintiff
Civil Action_ Law
v.
Jury Trial Demanded
David Breschi, et aI.,
Defendants
Docket No. 02-2009
Amended Ao,we.. To DefeOdao.... DavId B"-bl. MeIiu. Sw.uger. & Shumaker
Williams, p.e. 's First Set of Interrogatories
To Plaintiff John R. Nicrone
TO: Edwin A. D. Schwartz
Attorney for Defendants
2040 Linglestown Road
Suite 302
Harrisburg, PA 17110
2. I m,h to re;t....te my objectioo. The criminal mo.er Qower court). quite ,;mply. i, oot
relevant. Thi, cause of actiou arise, from lbc f.il..... of COO"'el to fu!low lbe required end
publi,hed Rules of Appellate Pmced",c. Plaintiff has, ., 00 time, alleged .ny negligence in the
boodling of the i..ues in the lower COurt end Defendants. conduct during the crinUnaI matter
(i,sues in tbe lower court) is DOt relevant. I will be more than happy", an,wer question, 2.-2e
as 'bey rel.te to the appeal. IItbat is OCCeptahl~ notiJy me and I will be bappy to comply.
3. Again, I will be happy to answer these questions as they relate to the appeal.
5. Thank you fur lbe clarification. No. I bave no knoWledge of .ny admirted Wmng<!oing on lbe
part of any of the defendants. However, reganJless of tbe disclaimer, no one capitnl.tes to .
$3600 Breach of Contract suit for the aame cause of .ction, unless lbey know lbey were wrong
7. My medical records aren't in my possession, but once I h.ve them I will be sure""end you
all relevant information.
-----.....-----..-.....
8. The mental aguish claim coincides with the anxiety of a prolonged wait to find out what the
final outcome would be, regardless of the outcome itself This was accompanied by loss sleep,
occasional loss of appetite, worry, etc. I also suffered as a result of betrayal of counsel. I trusted
Mr. Breschi, and his judgment.
9a. I suffered numerous, unsightly, rash like skin disease, on my face. To this day, they have yet
to fully disappear. The timing of the dermatitis coincided with the dismissal and salvation of my
appellate rights. It was necessary for a medical biopsy to be done to determine exactly what the
dermatitis was.
9b. I was treated by the Medical department at S.C.I. Dallas. I was not told what lab they sent
the biopsy to to determine its clarification.
~
Respectfully submitted,
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JOHN RUSSELL NICRONE,
PLAINTIFF
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
DAVID R. BRESCHI, ESQ.,
MELISSA A. SWAUGER, ESQ. AND
SHUMAKER WILLIAMS, P.C.,
DEFENDANTS : 02-2009 CIVIL TERM
ORDER OF COURT
AND NOW, this
\\0
day of October, 2002, the argument currently
scheduled for October 23, 2002, will be heard on briefs alone without oral argument.
John Nicrone, EF-5026, Pro se
SCI Dallas
1000 Follies Road
Dallas, PA 18612-0286
(
Edward A.D. Schwartz, Esquire
For Defendants
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JOHN RUSSELL NICRONE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
vs.
CIVIL ACTION - LAW
NO, 02-2009 CIVIL
DAVIn R. BRESCHI, ESQ"
MELISSA A. SWAUGER, ESQ.,
and SHUMAKER WILLIAMS P.C. :
Defendants
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE BAYLEY AND HESS
ORDER
AND NOW, this ~ day of January, 2003, the motion of the defendants for
summary judgment in this matter is SUSTAINED. The complaint of the plaintiff is
DISMISSED.
BY THE COURT,
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/John Nicrone, EF-5026, Pro se
SCI Dallas
1000 Follies Road
Dallas, P A 18612-0286
/Edwin A. D. Schwartz, Esquire
For the defendants
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JOHN RUSSELL NICRONE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
NO. 02-2009 CIVIL
DAVID R. BRESCHI, ESQ.,
MELISSA A. SWAUGER, ESQ.,
and SHUMAKER WILLIAMS P.c.
Defendants
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE BAYLEY AND HESS
OPINION AND ORDER
This case concerns a legal malpractice claim brought by John Russell Nicrone
(hereinafter Plaintiff) against David R. Breschi, Melissa A. Swa.uger and Shumaker Williams,
P.C. (hereinafter Defendants), The claim stems from a judgment of sentence passed by the
Honorable Lawrence F. Clark, Court of Common Pleas of Dauphin County, wherein the court
imposed a sentence upon plaintiff for imprisonment of not less than nine (9) years and no more
than twenty-five (25) years. The plaintiff was sentenced following his guilty plea to criminal
charges of robbery, burglary, criminal conspiracy, aggravated assault and criminal mischief. Mr.
Nicrone sought to challenge the trial court's sentence and filed a motion to modify sentence with
the trial court on May 5, 2000. Plaintiff's motion to modify sentence was denied by Judge Clark
on July 31, 2000.
Plaintiff then requested defendants to assist in filing a direct appeal to the Superior Court
of Pennsylvania challenging the discretionary aspects of plaintiff's sentence. On June 14, 2001,
the Superior Court issued a Memorandum Opinion affirming the trial court's sentence, but
declining to address the merits of plaintiff's appeal due to the failure of defendants to include a
"concise statement of reasons relied upon in support of the request for appeal" in the brief filed
02-2009 CIVIL
on behalf of plaintiff, as required by Rule 2119(f) of the Pennsylvania Rules of Appellate
1
Procedure.
Subsequent to the dismissal of plaintiff s first appeal to the Superior Court, the Honorable
Lawrence F. Clark entered an order dated November 5, 2001, granting plaintiffs amended
petition for relief under the Post Conviction Relief Act, thereby allowing plaintiff to file a new
direct appeal to the Superior Court of Pennsylvania nunc pro tunc. Plaintiff filed a second
appeal to the Pennsylvania Superior Court wherein the Court addressed the merits of plaintiff s
appeal. The Superior Court affirmed the judgment of sentence of plaintiff finding that plaintiff s
appeal lacked merit.
The instant matter was initiated by plaintiff against defendants on April 24, 2002, Count
I of plaintiff s complaint claims legal malpractice and negligence against defendants. Count II
claims defendant Melissa A. Swauger was negligent in her practice of law, Count III claims
defendant Shumaker Williams, P.C, is vicariously liable for the acts ofthe defendant attorneys.
Plaintiff's alleged damages are stated in paragraphs 14, 15, 19 and 20 of plaintiffs
complaint, provided below:
14. Because of the defendant's m~gligence,
plaintiff has been forced to endure another year of
mental anguish and suffering wondering what the
outcome of his appeal will be.
15. Because of the defendant's negligence,
plaintiff has been forced to defend himself: to
spend dozens of hours doing research in an area in
which he was completely ignorant, and to do so
without legal assistance because he was effectively
I From the face of the pleadings, it is clear that the plaintiff has referenced to !the Rule of Court requiring a concise
statement of matters complained of with regard to the discretionary aspects of his sentence. According to Pa.R.A.P.
2119(f), such a statement must precede the argument on the merits. This is not to be confused with the "concise
statement of matters complained of on the appeal" which may be required by the lower court in accordance with
Pa.R.A.P. 1925(b).
2
02-2009 CIVIL
without funds. Plaintiff could not afford new
counsel.
19. Because of the defendant's negligence,
plaintiff has been forced to endure another year of
mental anguish and suffering wondering what the
outcome of his appeal will be.
20, Because of the defendant's negligence,
plaintiff has been forced to defend himself: to
spend dozens of hours doing research in an area in
which he was completely ignorant, and to do so
without legal assistance because he was effectively
without funds. Plaintiff could not afford new
counsel.
Plaintiffs Complaint, ~ 14, 15, 19,20. The above allegations are the only damages claimed in
Plaintiff s Complaint.
Issue
Pennsylvania Rule of Civil Procedure 1035,2 states that:
After the relevant pleadings are closed, but within
such time as not to unreasonably delay trial, any
party may move for summary judgment in whole
or in part as a matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the cause
of action or defense which could be established by
additional discovery or expert report, or
(2) if, after the completion of discovery relevant to
the motion, including the production of expert
reports, an adverse party who will bear the burden
of proof at trial has failed to produce evidence of
facts essential to the cause of action or defense
which in a jury trial would require the issues to be
submitted to a jury.
Pa. R.C.P. 1035.2, Summary judgment should be granted, "[F]irst, when there is no genuine
issue of material fact that could be established by additional discovery and second, after
discovery, if an adverse party bearing the burden of proof has faiJled to produce evidence of
3
02-2009 CIVIL
essential facts so as to warrant the submission of the issue to a jury." Lynady v. Community
Medical Center, 49 Pa. D. & C.4th 391,394 (Pa.Com,Pl. 2000). Summary judgment is proper
where, viewing all the facts in the light most favorable to the nonmoving party and resolving all
doubts as to the existence of material fact against the moving party, the moving party is entitled
to judgment as a matter oflaw. Kahres v. Henry, 801 A.2d 650 (Pa. Commw. 2002). Summary
judgment may be granted, only where the moving party's right is clear and free from doubt. rd.
In order to establish a claim of legal malpractice, a plaintiff client must demonstrate three
elements:
1) employment 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.
Kituskie v. Corbman, 714 A.2d 1027,1029,552 Pa. 275,281 (Pa, 1998). An essential element
to a legal malpractice cause of action is proof of actual loss, and not merely a breach of a
professional duty causing only nominal damages, speculative harm or the threat of future harm.
rd. "The mere breach of a professional duty, causing only nominal damages, speculative harm,
or the threat of future harm--not yet realized--does not suffice to create a cause of action for
negligence," Carnegie Mellon University v. Schwartz, 105 F.3d 863,867 (3d Cir. 1997),
The court in Duke v. Anderson, 275 Pa. Super. 65, 418 A.2d 613 (Pa. Super. 1980), noted
that "when it is alleged that an attorney has breached his professional obligations to his client, an
essential element of the cause of action, ". is proof of actual loss." Duke at 73, 418 A.2d at 617.
Duke further emphasized that, in proving damages, the client has the "task of establishing that,
but for the negligence complained of, the client would have been successful in the prosecution or
defense of the action in question," Duke at 74, 418 A.2d at 618. Therefore, even assuming that
4
02-2009 CIVIL
the attorney is negligent, if a plaintiffs cause of action in the underlying case is not viable, a
claim of legal malpractice fails due to lack of actual damages.
In the case sub judice, the July 31, 2002, opinion of the Superior Court found that the
plaintiff s argument on appeal regarding his challenge to the trial court's sentencing had no merit
and affirmed the trial court's decision, As indicated above, in order to establish a claim for legal
malpractice, a plaintiff must show that he/she suffered actual damages as a result of the
attorney's action or inaction; i.e., that he/she would have prevailed in the underlying case. In this
case, plaintiff would not, and in fact did not, prevail in the unde:r1ying case.
ORDER
AND NOW, this
~ ,
../I, ~
day of January, 2003, the motion ofthe defendants for
summary judgment in this matter is SUSTAINED. The complaint of the plaintiff is
DISMISSED.
BY THE COURT,
John Nicrone, EF-5026, Pro se
SCI Dallas
1000 Follies Road
Dallas, PA 18612-0286
/
Edwin A. D. Schwartz, Esquire
For the defendants
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