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ABDULLAH HANEEF IBN-SADIIKA v. KIM WM. RIESTER (11/14/88)

submitted: November 14, 1988.

ABDULLAH HANEEF IBN-SADIIKA, APPELLANT,
v.
KIM WM. RIESTER, ESQUIRE AND LAW FIRM



Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 88-02071-P.

COUNSEL

Abdullah Haneef Ibn-Sadiika, appellant, in propria persona.

Charles K. Mulzet, Pittsburgh, for appellee.

Brosky, Montgomery and Hoffman, JJ.

Author: Brosky

[ 380 Pa. Super. Page 400]

This is an appeal from the Order of April 26, 1988, docketed April 28, 1988, which sustained appellees' preliminary objections, in the nature of a demurrer, dismissing appellant's complaint with prejudice.

Appellant now alleges that the trial court erred: (1) in sustaining appellees' demurrer, and dismissing appellant's complaint with prejudice; (2) in concluding that appellant failed to demonstrate in his complaint, that counsel did not exercise ordinary skill and knowledge, and that counsel's negligence was the proximate cause of damage to appellant; (3) in concluding that appellant sought damages for reasons all related to the error of counsel in placing an incorrect docket number on appellant's Superior Court appeal; and (4) in concluding that appellant's complaint failed to state a cause of action against appellees.

Upon review of the record, and the briefs submitted on behalf of the parties,*fn1 we fail to find merit to appellant's contentions, and affirm the dismissal of the complaint.

Appellant was convicted of first degree murder and robbery on June 27, 1985. His court-appointed trial counsel was appellee Kim Riester, Esq., of the appellee law firm of Scott, Vogrin, and Riester. After proceeding to the penalty phase, the jury informed the trial court on June 28, 1985, that they were hopelessly deadlocked as to whether to impose the death penalty, and the court set the penalty at life imprisonment.

Untimely post-trial, and supplemental post-trial, motions, were filed, bearing an incorrect docket number. The trial court, however, heard argument upon the motions, and denied them. The official judgment of sentence was entered on February 7, 1986, and a timely appeal to this court followed.

Included in the record on appeal was a stipulation between appellee Riester and the assistant district attorney,

[ 380 Pa. Super. Page 401]

    that an incorrect docket number had been placed upon various documents, including appellant's various post-trial motions, which had resulted in their omission from the record. A panel of this Court, however, refused to consider any of the issues raised on appeal, as the post-trial motions had not been properly filed with the clerk of courts, in violation of 42 Pa.C.S. ยง 2756(a)(1). The Supreme Court denied allocatur.

Thereafter, on February 2, 1988, appellant filed a pro se complaint against appellees, alleging malpractice, breach of contract, and negligence. Appellees responded by filing preliminary objections, including a demurrer, to each of these three counts. The demurrer was granted, and appellant's complaint was dismissed with prejudice on April 26, 1988. This timely appeal followed.

The appellate court's scope of review upon an appeal from the sustaining of preliminary objections in the nature of a demurrer, is well established. The question presented is, whether, upon the facts averred in the complaint, taking all material facts and reasonable inferences deducible from those factors as true, the law says with certainty that no recovery is possible. ei bon ee baya ghananee v. Black, 350 Pa. Super. 134, 138, 504 A.2d 281, 283 (1986), citing Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231 (1983). A demurrer should be sustained and the complaint dismissed only in cases that are clear and free from doubt. ei bon ee baya ghananee, supra; Herron v. Seizak, 321 Pa. Super. 466, 468 A.2d 803, 804 ...


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