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KENNETH QUICK v. STEPHEN SWEM (10/16/89)

submitted: October 16, 1989.

KENNETH QUICK, APPELLANT,
v.
STEPHEN SWEM, ESQUIRE, APPELLEE



Appeal From Order June 5, 1989, Court of Common Pleas, Civil Division, Allegheny County No. GD 89-2844-P.

COUNSEL

Kenneth Quick, in pro. per.

Thomas C. Reed, Pittsburgh, for appellee.

Cavanaugh, Melinson and Montgomery, JJ.

Author: Cavanaugh

[ 390 Pa. Super. Page 119]

Appellant, Kenneth Quick, brought a legal malpractice action against appellee, Steven Swem, Esquire,*fn1 a public defender who represented him in criminal proceedings. Quick pled guilty while represented by Swem to the charges of involuntary deviate sexual intercourse and related offenses. No direct appeal was taken. He was represented

[ 390 Pa. Super. Page 120]

    by new counsel at the collateral appeal stage. Quick's petition filed under the Post Conviction Hearing Act, (PCHA), 42 Pa.C.S.A. § 9541 et seq. (repealed) has been twice remanded by this court for consideration of the merits of the petition.

The complaint in malpractice was filed while the second appeal was pending before this court. After the lower court dismissed the malpractice complaint, this court remanded the criminal matter for the second time. The basis upon which the lower court sustained appellee's preliminary objections and dismissed the complaint with prejudice was that it was without jurisdiction to act, pursuant to the Post Conviction Relief Act, (PCRA), 42 Pa.C.S.A. § 9542. This section provides as follows:

§ 9542. Scope of subchapter

This subchapter provides for an action by which persons convicted of crimes they did not commit or serving unlawful sentences may obtain collateral relief and for an action by which persons can raise claims which are properly a basis for Federal habeas corpus relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, nor is this subchapter intended to provide a means for raising issues waived in prior proceedings.

We disagree that this statute precludes maintenance of a civil action for malpractice that seeks monetary damages. We interpret it to preclude only collateral actions which pose a challenge to the judgment of sentence. The specification of the remedies of habeas corpus and corum nobis indicate that the legislature intended to limit challenges to a judgment ...


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