Pennsylvania Legal Malpractice Handbook

PennsylvaniaLegalMalpracticeHandbook

2017 Edition

Edwin A.D. Schwartz, Esq.

Nicole M. Ehrhart, Esq.

Sarah S. Kleinman, Esq.

Aaron E. Moore, Esq.

Charlene S. Seibert, Esq.

Alesia S. Sulock, Esq.

This handbook was prepared by Marshall Dennehey Warner Coleman & Goggin to provide information of interest to our clients. Thispublication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. The opinions summarizedmay be revised, withdrawn or overruled by the courts, and the authors and our firm make no representation and undertake no obligationregarding their official or unofficial status. We would be pleased to provide such legal assistance as you require on these and other subjectswhen called upon.

ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin. All rights reserved.No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, [email protected].

www.marshalldennehey.com

Legal Malpractice Department – Pennsylvania

10 N. Main Street, 2nd FloorDoylestown, PA 18901Phone: (267) 880-2020

R. Anthony Michetti, Esq.

100 Corporate Center Drive, Suite 201Camp Hill, PA 17011Phone: (717) 651-3500

Nicole M. Ehrhart, Esq.Timothy J. McMahon, Esq.Edwin A.D. Schwartz, Esq.

717 State Street, Suite 701Erie, PA 16501Phone: (814) 480-7800

G. Jay Habas, Esq.

620 Freedom Business Center, Suite 300King of Prussia, PA 19406Phone: (610) 354-8250

Maureen P. Fitzgerald, Esq.

2000 Market Street, Suite 2300Philadelphia, PA 19103Phone: (215) 575-2600

Gregory W. Fox, Esq.Arthur W. Lefco, Esq.Stephen G. Keim, Esq.Sarah S. Kleinman, Esq.Aaron E. Moore, Esq.Alesia S. Sulock, Esq.

Union Trust Building501 Grant Street, Suite 700Pittsburgh, PA 15219Phone: (412) 803-1140

Dennis J. Roman, Esq.Charlene S. Seibert, Esq.Timothy R. Stienstraw, Esq.

Attorney Advertising pursuant to NY RPC 7.1

i

TABLE OF CONTENTS

Page

A. THE ATTORNEY-CLIENT RELATIONSHIP................................................................................................. 1

1. The Practice of Law and Legal Malpractice Claims Generally .......................................................... 1

2. Establishing the Attorney-Client Relationship.................................................................................. 2

3. Establishing the Fee.......................................................................................................................... 2

4. Limiting or Declining the Scope of Representation .......................................................................... 3

5. Defense Attorneys Handling Affirmative Claims .............................................................................. 4

6. The Attorney’s Duty to Non-Clients.................................................................................................. 4

B. THE DUTY OF CARE................................................................................................................................ 4

1. Fiduciary Relationships ..................................................................................................................... 4

2. Defining the Attorney’s Duty............................................................................................................ 5

3. Lawyer’s Duty to Be Informed .......................................................................................................... 5

4. Keeping the Client Informed............................................................................................................. 5

5. The Duty to Report Misdeeds........................................................................................................... 6

6. Lawyer’s Duty to Supervise............................................................................................................... 7

a. Supervising Subordinate Lawyers................................................................................................. 7

b. Supervising Non-Lawyers ............................................................................................................. 7

7. Settlement of Claims ........................................................................................................................ 8

8. Organizational Attorney’s Duties...................................................................................................... 8

a. Duty to the Company ................................................................................................................... 8

b. Duty to Shareholder(s) ................................................................................................................. 8

9. Examination of Title and Real Estate Matters ................................................................................10

10. Wills, Trusts and Estates .................................................................................................................11

11. Claims by Beneficiaries – Burden of Proof......................................................................................11

12. Medical Malpractice Claims............................................................................................................12

13. Workers’ Compensation Liens........................................................................................................12

14. Fair Debt Collection Practices Act Claims .......................................................................................13

a. The Requirements of the Claim..................................................................................................13

b. Attorneys as Debt Collectors ......................................................................................................13

15. Unfair Trade Practices Consumer Protection Law..........................................................................14

16. Union Attorneys’ Liability ...............................................................................................................14

17. Claims Against Defense Counsel Arising Out of Criminal Cases .....................................................14

C. PROVING LEGAL MALPRACTICE – THE CASE WITHIN THE CASE .........................................................15

ii

1. Plaintiff’s Proofs..............................................................................................................................15

2. Causation ........................................................................................................................................17

3. Use of Speculation and/or Conjecture Are Improper to Prove Causation .....................................18

4. Actual Damages ..............................................................................................................................19

5. The Rules of Professional Conduct as a Basis of Liability ...............................................................19

6. Contributory Negligence of the Client............................................................................................20

7. Exercise of Professional Judgment .................................................................................................21

D. PROVING DAMAGES – THE PLAINTIFF’S BURDEN...............................................................................21

1. Proving the Case Through an Expert ..............................................................................................21

2. Use of Expert Testimony.................................................................................................................21

3. Establishing the Viability of the Claim ............................................................................................22

4. Establishing the Value of the Claim ................................................................................................22

5. Lost Opportunities and/or Lost Profits ...........................................................................................23

6. Damages for Emotional Distress.....................................................................................................23

7. Punitive Damages ...........................................................................................................................25

8. Settlements Barring Malpractice Actions .......................................................................................26

9. Settlements to Avoid Litigation Catastrophes................................................................................28

10. Attorney Fees..................................................................................................................................28

E. THE CERTIFICATE OF MERIT ................................................................................................................28

1. The Requirement ............................................................................................................................28

2. The Procedure in Pennsylvania State Court ...................................................................................30

3. Procedure in Pennsylvania Federal Court.......................................................................................31

4. Effect of Judgment of Non Pros, Remedies and Relief ...................................................................31

F. THE STATUTE OF LIMITATIONS IN LEGAL MALPRACTICE....................................................................32

1. Applicable Statutory Period............................................................................................................32

2. The Occurrence Rule, Discovery Rule and Fraudulent Concealment.............................................36

G. THIRD PARTY CLAIMS AGAINST ATTORNEYS AND THE LITIGATION PRIVILEGE..................................37

1. Privity Requirements for Negligence Claims ..................................................................................37

2. The Doctrine of Judicial Privilege....................................................................................................38

3. Federal Statutory Claims Against Attorneys...................................................................................39

4. Civil Conspiracy and Aiding and Abetting Claims Brought Against Attorneys................................39

5. Wrongful Use of Civil Proceedings and Abuse of Process Claims...................................................40

H. THE DOCTRINE OF JUDICIAL ESTOPPEL IN LEGAL MALPRACTICE ACTIONS........................................41

I. End Notes ............................................................................................................................................42

Pennsylvania Legal Malpractice Handbook

www.marshalldennehey.com | 2017 Edition 1

A. THE ATTORNEY-CLIENT RELATIONSHIP

1. The Practice of Law and Legal Malpractice Claims Generally

The practice of law in Pennsylvania is guided by the Pennsylvania Rules of ProfessionalConduct.1 Pursuant to the Pennsylvania Rules of Civil Procedure, “[a] lawyer, as a member ofthe legal profession, is a representative of clients, an officer of the legal system and a publiccitizen having a special responsibility for the quality of justice.”2 The Rules of ProfessionalConduct provide guidance on how attorneys in Pennsylvania should practice law and theirduties and obligations to clients and others. However, a violation of the Rules of ProfessionalConduct does not give rise to legal malpractice liability.3 Thus, a violation of these rules, alone,does not form the basis for a legal malpractice claim.4

In Pennsylvania, a client may bring a legal malpractice claim in the form of breach ofcontract or negligence. The statute of limitations for a legal malpractice claim sounding inbreach of contract is four years;5 the statute of limitations for a legal malpractice claimsounding in negligence is two years.6

Factual and proximate causation are necessary elements of a plaintiff’s legal malpracticeclaim, whether in the form of breach of contract or negligence. In order to show that theattorney’s conduct was the cause in fact of the plaintiff’s alleged damages, the plaintiff mustprove, by a preponderance of the evidence, that her alleged damages would not have occurredbut for the negligent conduct of the attorney.7 It is not enough to show that the attorney mayhave “increased the risk of harm” to the plaintiff. Rather, a plaintiff must prove that he wouldhave prevailed in his underlying cause of action.8 In order to show that the attorney’s conductwas the proximate cause of the plaintiff’s alleged damages, the plaintiff must prove, by apreponderance of the evidence, that the attorney’s failure to adhere to the standard of carewas a substantial factor in bringing about the plaintiff’s alleged harm. It is not sufficient that theattorney’s acts may be viewed, in retrospect, to have been one of the happenings in the seriesof events leading up to the alleged damages.9 Rather, the plaintiff must produce evidencewhich, upon the whole, shows that it is more likely than not that his alleged damages werecaused by the attorney’s alleged negligence.10

Importantly, “[a]n attorney at law is not liable to his client for a failure to succeed,resulting in loss to the client, unless this is due to his mismanagement of the business entrustedto him through bad faith, inattention, or want of professional skill... .”11 “There is nopresumption that an attorney has been guilty of a want of care, arising merely from a badresult. To the contrary, an attorney is presumed to have discharged the duties of hisrepresentation until the opposite has been made to appear.”12 “An attorney does not ordinarilyguarantee the soundness of his opinions, and accordingly is not liable for every mistake he maymake in his practice. He is expected, however, to possess knowledge of those plain andelementary principles of law which are commonly known by well-informed attorneys, and todiscover those additional rules of law which, although not commonly known, may readily befound by standard research techniques.”13



2. Establishing the Attorney-Client Relationship

To state a claim for legal malpractice in Pennsylvania, absent very narrow exceptionsdiscussed elsewhere in this handbook, the plaintiff must be a client of the attorney defendant.14

The first element to state a claim for legal malpractice is the employment of the attorney orother basis for a duty.15 “Privity (an attorney-client or analogous professional relationship, or aspecific undertaking)” is “an element of proof necessary” to state a legal malpractice claim.16

The existence of an attorney-client relationship may be proven through a contractualagreement for representation or through the existence of an implied attorney-clientrelationship.17 “Absent an express contract, an implied attorney-client relationship will befound if (1) the purported client sought advice or assistance from the attorney; (2) the advicesought was within the attorney’s professional competence; (3) the attorney expressly orimpliedly agreed to render such assistance; and (4) it is reasonable for the putative client tobelieve the attorney was representing him.”18 In order to meet the last, “reasonable belief”requirement, the plaintiff must prove not only that he believed the attorney was representinghim, but also that such belief was objectively reasonable. Thus, whether the plaintiff personallybelieved that the attorney was representing him does not matter if his belief was notobjectively reasonable.19

3. Establishing the Fee

The fee owed by a client for legal representation is generally established by theengagement letter or representation agreement. Pursuant to the Pennsylvania Rules ofProfessional Conduct, absent a preexisting relationship between attorney and client, the feemust be communicated, in writing, to the client before or within a reasonable time aftercommencing the representation.20

An attorney may be paid on a flat fee or hourly basis, or the fee may be contingent(except in cases where a contingent fee is prohibited). A contingent fee agreement must alwaysbe in writing.21 The written contingent fee agreement “[s]hall state the method by which thefee is to be determined, including the percentage or percentages that shall accrue to the lawyerin the event of settlement, trial or appeal, litigation and other expenses to be deducted fromthe recovery, and whether such expenses are to be deducted before or after the contingent feeis calculated.”22 “With a contingency agreement, an attorney will evaluate the risks related to arecovery in a case and what percentage of an award will best compensate the attorney and thefirm for their labors. The attorney accepts the risk that, if there is no recovery, then theattorney receives no compensation.”23 Following the conclusion of a contingent matter, thelawyer must provide to the client a written statement stating the outcome of the matter, anyremittance to the client, and the method of calculating the amount owed the client.24

When a client terminates an attorney, that does not relieve the client of the obligationto pay the attorney’s fee.25 In the event of a contingency fee agreement, the attorney generallyhas a claim in quantum meruit to recover his fees.26 “Quantum meruit is an equitable remedy



[which] is defined as ‘as much as deserved’ and measures compensation under an impliedcontract to pay compensation as reasonable value of services rendered.”27 Quantum meruitrecovery “[s]hould be based on a fair assessment of the contributions of the dischargedattorney to any eventual award in the case.”28

In particular cases, court approval of counsel fees may be required. For example, indetermining the appropriate fee owed an estate attorney, the court considers the followingfacts and factors: “[t]he amount of work performed; the character of the services rendered; thedifficulty of the problems involved; the importance of the litigation; the amount of money orvalue of the property in question; the degree of responsibility incurred; whether the fundinvolved was ‘created’ by the attorney; the professional skill and standing of the attorney in hisprofession; the results he was able to obtain; the ability of the client to pay a reasonable fee forthe services rendered; and, very importantly, the amount of money or the value of the propertyin question.”29

Pennsylvania follows the “American Rule” with respect to payment of attorney’s fees.Under the “American Rule,” a party may not recover attorneys’ fees from its adversary absentan express statutory authorization, a clear agreement by the parties or some other establishedexception allowing for such a recovery.30

With respect to legal malpractice liability, disgorgement of fees paid or forfeiture of feesowed may be an appropriate remedy.31

4. Limiting or Declining the Scope of Representation

“It is old, settled law that persons may alter by express agreement the legal relationshipthey would normally have had by operation of law.”32 The Pennsylvania Rules of ProfessionalConduct specifically provide that “[a] lawyer may limit the scope of the representation if thelimitation is reasonable under the circumstances and the client gives informed consent.”33 Thecomment to the rule further provides: “[t]he scope of services to be provided by a lawyer maybe limited by agreement with the client or by the terms under which the lawyer’s services aremade available to the client.”34 Oftentimes, “‘[t]he primary issue in a legal malpractice suit isnot the existence of a duty but the extent of that duty,’ and ‘the extent of the duty derives fromthe circumstances, being the subject matter of the retention and the parties’ agreement.’”35

There are few cases in Pennsylvania which address the duty imposed on a lawyer who restrictsthe scope of his representation in writing. However, it is abundantly clear that a lawyer may befound to have undertaken implied duties that are collateral to the subject matter for which hewas initially retained.

To avoid this outcome, engagement letters that expressly, in writing, limit the scope ofthe representation may be used. Likewise, when an attorney declines to represent a potentialclient, a “non-engagement” letter may be sent that “‘refer[s] in general to statutes oflimitations.’”



5. Defense Attorneys Handling Affirmative Claims

As in all cases, a defense attorney raising counter claims or cross claims is required bythe Rules of Professional Conduct to provide competent representation to the client.36

“Competent representation requires the legal knowledge, skill, thoroughness and preparationreasonably necessary for the representation.”37 “A lawyer may accept representation wherethe requisite level of competence can be achieved by reasonable preparation.”38 Although theRule on competence may not be a source of liability, an attorney who provides representationin affirmative claims that falls below the standard of care may be liable for legal malpractice.

6. The Attorney’s Duty to Non-Clients

Generally speaking, an attorney only owes duties to his clients. “It is axiomatic that anattorney who undertakes representation of a client owes that client both a duty of competentrepresentation and the highest duty of honesty, fidelity, and confidentiality.”39 This duty“demands undivided loyalty” and “prohibits the attorney from engaging in conflicts ofinterest.”40 Thus, the duty an attorney owes to his client prohibits the attorney fromundertaking any duties which may be adverse to his client’s interests, including many duties tonon-clients.

In certain limited circumstances, an attorney may owe duties to third party beneficiariesof the attorney-client relationship. This will be discussed more thoroughly below, but onlyspecifically named beneficiaries have standing to bring a legal malpractice claim as a third partybeneficiary to the attorney-client contract.41

The Pennsylvania Rules of Professional Conduct also impose various duties on attorneys,many of which may implicate non-clients, including the duty of candor to the tribunal (RPC 3.3),the duty of fairness to opposing party and counsel (RPC 3.4), duties in connection with dealingwith unrepresented persons (RPC 4.3), and respect for rights of third persons (RPC 4.4).

B. THE DUTY OF CARE

1. Fiduciary Relationships

The Pennsylvania Supreme Court specifically recognized that an attorney owes afiduciary duty to his or her client.42 “Such duty demands undivided loyalty and prohibits theattorney from engaging in conflicts of interest, and breach of such duty is actionable.”43 “Anattorney who undertakes representation of a client owes that client both a duty of competentrepresentation and the highest duty of honesty, fidelity, and confidentiality.”44 An attorneymust place the interests of the client above the interests of the attorney; the attorney mustmake full and fair disclosure about the representation; and the attorney cannot take advantageof his position to gain a profit at the expense of his client.



2. Defining the Attorney’s Duty

An attorney’s duty to his or her client generally derives from the circumstances beingthe subject matter of the retention and the parties’ agreement.45 Rule 1.2(c) of the Rules ofProfessional Conduct similarly provides that “[a] lawyer may limit the objectives of therepresentation if the client consents after a full disclosure of the circumstances andconsultation.”46 The official comment accompanying Rule 1.2 further notes, “The objectives orscope of services provided by a lawyer may be limited by agreement with the client or by theterms under which the lawyer’s services are made available to the client.”47

3. Lawyer’s Duty to Be Informed

An attorney cannot be liable so long as he employed such judgment as is expected bythe standard of accepted legal practice. In Pennsylvania, “an informed judgment on the part ofcounsel, even if subsequently proven erroneous, is not negligence.”48 In Composition RoofersLocal 30/30B v. Katz, 581 A.2d 607 (Pa. Super. Ct. 1990), the union plaintiff asserted a legalmalpractice claim against its attorney for negligently advising it that its members’ legal feesincurred in defense of a criminal matter could be paid from union funds. This advice wassubsequently found to be erroneous; however, the trial court, in sustaining the attorney’spreliminary objections, held that the attorney’s incorrect advice was based on an informedjudgment. The Superior Court affirmed.49

“Although a lawyer is not expected to be infallible, he or she is expected to conduct thatmeasure of research sufficient to allow the client to make an informed decision. In order for alawyer to advise a client adequately, he or she is obligated to scrutinize any contract which theclient is to execute, and thereafter must disclose to the client the full import of the instrumentand any possible consequences which might arise therefrom.”50 To that point, “[t]he lawyer, []must be familiar with well settled principles of law and the rules of practice which are offrequent application in the ordinary business of the profession.”51

4. Keeping the Client Informed

A lawyer owe a duty to communicate with his or her client to enable the client toeffectively participate in the representation. Therefore, an attorney should “[e]xert his bestefforts to insure that decisions of his client are made only after the client has been informed ofrelevant considerations.”52 Rule of Professional Conduct 1.2 requires lawyers to abide by aclient’s decisions concerning the objections of representation and to consult with the client asto the means by which they are to be pursued. With respect to “consultation,” Rule 1.4provides that a lawyer shall:

(1) Promptly inform the client of any decision or circumstancewith respect to which the client’s informed consent isrequired;



(2) Reasonably consult with the client about the means bywhich the client’s objectives are to be accomplished;

(3) Keep the client reasonably informed about the status ofthe matter;

(4) Promptly comply with reasonable requests forinformation; and

(5) Consult with the client about any relevant limitation onthe lawyer’s conduct when the lawyer knows that theclient expects assistance not permitted by the Rules ofProfessional Conduct or other law.

Where the Rules require that a particular decision about the representation be made bythe client, paragraph (a)(1) requires that the lawyer promptly reach out to the client and securethe client’s consent prior to taking action. For example, it is exclusively within the province ofthe client to accept or reject a settlement. Accordingly, an attorney is required to communicateall settlement offers to the client, and failure to do so can give rise to malpractice.53 If,however, a lawyer’s prior discussions with the client have clarified the actions the client wantsthe lawyer to take, the lawyer may take such action without first speaking with the client.54

Rule of Professional Conduct 1.4 further requires that the lawyer provide the client withenough information “[s]o that the client can participate intelligently in decisions concerning theobjections of the representation and the means by which they are to be pursued, to the extentthe client is willing and able to do so.”55 Adequacy of communication is case specific. “Theguiding principle is that the lawyer should fulfill reasonable client expectations for informationconsistent with the duty to act in the client’s best interests, and the client’s overallrequirements as to the character of representation.”56 For example, in litigation, a lawyershould explain “[t]he general strategy and prospects of success and ordinarily should consultthe client on tactics that are likely to result in significant expense or to injure or coerce others.”A lawyer is not expected to go into great detail to describe trial or negotiation strategy.

5. The Duty to Report Misdeeds

Pursuant to the Pennsylvania Rules of Professional Conduct, a lawyer may not, in thecourse of representing a client, make a false statement of material fact or law to a third personor “[f]ail to disclose a material fact to a third person when disclosure is necessary to avoidaiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited byRule 1.6.”57 Moreover, an attorney has a duty of candor to the court.58 Likewise, a lawyer maynot unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy orconceal evidence.59 However, again, a violation of the Rules of Professional Conduct does notgive rise to legal malpractice liability.60 Thus, a violation of these rules, alone, does not form thebasis for a legal malpractice claim.61



6. Lawyer’s Duty to Supervise

Although there are no Pennsylvania cases addressing an attorney’s civil liability forfailing to supervise either subordinate attorneys or non-lawyers, a violation of an attorney’sethical obligation to do so can give rise to sanctions.

a. Supervising Subordinate Lawyers

Lawyers having direct supervisory responsibility over subordinate lawyers assume a dutyto make “[r]easonable efforts to ensure that the other lawyer conforms to the Rules ofProfessional Conduct” and may be liable for the subordinate attorney’s violations if:

(1) the lawyer orders or, with knowledge of the specific conduct,ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerialauthority in the law firm in which the other lawyer practices,or has direct supervisory authority over the other lawyer, andknows of the conduct at a time when its consequences can beavoided or mitigated but fails to take reasonable remedialaction.62

Rule 5.2 states, “A subordinate lawyer does not violate the Rules of ProfessionalConduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution ofan arguable question of professional duty.”63 The Eastern District Court further explained that“[w]hen lawyers in a supervisor-subordinate relationship encounter a matter involvingprofessional judgment as to ethical duty, the supervisor may assume responsibility for makingthe judgment. Otherwise a consistent course of action or position could not be taken... . Forexample, if a question arises whether the interests of two clients conflict under Rule 1.7, thesupervisor’s reasonable resolution of the question should protect the subordinateprofessionally if the resolution is subsequently challenged.”64

b. Supervising Non-Lawyers

An attorney who has supervisory authority over a non-lawyer shall make “[r]easonableefforts to ensure that the person’s conduct is compatible with the professional obligations ofthe lawyer.”65 Under certain circumstances, a lawyer may be responsible for his paralegal’sactions if he directs her to engage in the conduct or, knowing of the conduct, ratifies it.66

In Penda, a patent holder’s attorney directed a paralegal to call the manufacturer toinquire whether the manufacturer’s bed lines could be purchased in the Philadelphia area.During that call, the paralegal made misrepresentations, causing the manufacturer to seeksanctions against the patent attorney for violations of Rules 4.2 and 8.4 of the PennsylvaniaRules of Professional Conduct for alleged ex parte communications with a person known to be



represented. Although the court explained that the paralegal may have engaged inmisrepresentation when she failed to identify herself as an agent for the plaintiff and suggestedthat she was a potential customer, the attorney was not in violation of Rule 8.4 because thelawyer did not direct the paralegal to engage in misrepresentation.

7. Settlement of Claims

An attorney has an obligation to inform his or her client of any settlement offer andmust have express authority to settle a cause of action on behalf of the client.67 Failure tocommunicate a settlement offer, or accepting a settlement without authorization, can give riseto a claim for malpractice.68 Additionally, an attorney has a duty to inform himself or herself ofthe manner in which a proposed settlement affects the client and to inform the client regardingthe consequences thereof.69 Likewise, during settlement negotiations, a lawyer owes his or herclient a duty not to commit fraud.70

8. Organizational Attorney’s Duties

a. Duty to the Company

An attorney representing an organization generally owes his or her duty to thatorganization, not necessarily to any individual shareholder.71 Pennsylvania Rule of ProfessionalConduct states, “A lawyer employed or retained by an organization represents the organizationacting through its duly authorized constituents.”72 This makes it clear that an attorneyrepresenting a corporation generally represents the corporation and not the corporation’sshareholders, officers or directors.

There are times when the organization’s interests may be or become adverse to thoseof one or more of its constituents. In such circumstances, the lawyer should advise anyconstituent, whose interest the lawyer finds adverse to that of the organization, of the conflictor potential conflict of interest, that the lawyer cannot represent such constituent, and thatsuch person may wish to obtain independent representation. The organization’s attorney has aduty to ensure that the individual understands that he or she cannot provide legalrepresentation for that constituent individual and that discussions between the lawyer for theorganization and the individual may not be privileged.

b. Duty to Shareholder(s)

In certain circumstances, a personal attorney-client relationship between corporatecounsel and a shareholder may be established. In First Republic Bank v. Brand, the court utilizedthe following ten factors to determine whether an attorney-client relationship had beenformed between the corporation’s attorney and one of the corporation’s shareholders:



1. Whether the shareholder was separately represented by othercounsel when the corporation was created or in connectionwith its affairs;

2. Whether the shareholder sought advice on whether theattorney represented the shareholder in particularizedindividual matters, including matters arising prior to theattorney’s representation of the corporation;

3. Whether the attorney had access to the shareholder’sconfidential or secret information that was unavailable toother parties;

4. Whether the attorney’s services were billed to and paid by thecorporation or the shareholder;

5. Whether the corporation is closely held;

6. Whether the shareholder could reasonably have believed thatthe attorney was acting as his individual attorney rather thanas the corporation’s attorney;

7. Whether the attorney affirmatively assumed a duty ofrepresentation to the shareholder by either expressagreement or implication;

8. Whether the matters on which the attorney gave advice arewithin his or her professional competence;

9. Whether the attorney entered into a fee agreement; and

10. Whether there was evidence of reliance by the shareholder onthe attorney as his or her separate counsel, or of theshareholder’s expectation of personal representation.73

In applying that test, the Philadelphia Court of Common Pleas, in Del Borello v. DelBorello, held that a director of a close corporation could have reasonably believed that thecorporation’s attorney represented him because: (1) the director privately met with thecorporate lawyer to discuss disputes with other directors and officers of the corporation; (2)the director discussed non-corporate matters with the corporate attorney; (3) at no time didthe corporate attorney tell the director that any of the information exchanged could be usedagainst him; (4) the corporate attorney never told the director that his position precluded himfrom meeting or representing the director or that there was any potential conflict; and (5) thecorporate attorney represented three partnerships in which the director was a partner andperformed legal services for other members of the director’s family.74 That court did not hold



that an implied attorney-client relationship existed but, rather, directed the parties to conductdiscovery on issues related to the plaintiff’s motion to disqualify the defendants’ attorneys.

9. Examination of Title and Real Estate Matters

In connection with real estate matters, attorneys serve many roles. Lawyers mayrepresent a buyer or seller of a property, may be involved in examining title for the purpose ofissuing title insurance, or may represent a lender or borrower in connection with a foreclosure.In all cases, the attorney’s duties arise from the representation agreement between theattorney and his client and from the ordinary skill and knowledge expected of attorneys. Aswith other areas of law, only the lawyer’s client may bring a suit alleging legal malpractice.However, there may be other areas of liability to non-clients, including claims under the FairDebt Collection Practices Act (Section 2.27) and/or the Unfair Trade Practices ConsumerProtection Law (Section 2.28), discussed elsewhere herein.

With respect to title examinations and issuance of title insurance, attorneys may act as“approved attorneys” in examining title. The Pennsylvania Title Insurance Act defines an“approved attorney” as “[a]n attorney at law in good standing upon whose examination of titleand report of title thereon a title insurance company may issue a policy of title insurance.”75

“No policy of title insurance, excluding reinsurance, shall be written unless and until the titleinsurance company, either through its own employees, agents or approved attorneys, hasconducted a reasonable examination of the record title or has caused a reasonable examinationof title to be conducted.”76 The title abstract must be retained in writing or a copy must beretained.77

In connection with foreclosure proceedings, an attorney representing a mortgage lendershould be aware of the requirements of the Pennsylvania Loan Interest and Protection Law,which limits the attorney’s fees that a residential mortgage lender shall contract for or receivefrom a residential mortgage debtor.78 The Pennsylvania Loan Interest and Protection Lawprovides that:

[N]o residential mortgage lender shall contract for or receiveattorney’s fees from a residential mortgage debtor except asfollows:

(1) Reasonable fees for services included in actual settlementcosts.

(2) Upon commencement of foreclosure or other legal action withrespect to a residential mortgage, attorney’s fees which arereasonable and actually incurred by the residential mortgagelender may be charged to the residential mortgage debtor.



(3) Prior to commencement of foreclosure or other legal actionattorneys’ fees which are reasonable and actually incurred not inexcess of fifty dollars ($50) provided that no attorneys’ fees maybe charged for legal expenses incurred prior to or during thethirty-day notice period provided in section 403 of this act.79

Pursuant to Section 502 of the Act, “[a] person who has paid a rate of interest for the loan oruse of money at a rate in excess of that provided for by this act or otherwise by law or has paidcharges prohibited or in excess of those allowed by this act or otherwise by law may recovertriple the amount of such excess interest or charges in a suit at law against the person who hascollected such excess interest or charges[.]”80 The Pennsylvania Supreme Court held that “[a]borrower may recover under Section 502 from any entity – not solely the residential mortgagelender – that collects excessive attorney’s fees in connection with a foreclosure.”81 Thus, alawyer or law firm, representing a mortgage lender, may be liable to a mortgage debtor forexcessive attorney’s fees charged to the debtor.82

10. Wills, Trusts and Estates

Generally, “[a]n attorney is obligated to draft documents which carry out the testator’splan regardless of the effects or consequences on any potential beneficiaries.”83

A testator must be at least 18 years of age and of sound mind in order to have sufficienttestamentary capacity to execute a will or similar document.84 “The test for determining theexistence of testamentary capacity, a quality every person sui juris is presumed to possess, is‘whether a man [or woman] has an intelligent knowledge regarding the natural objects of hisbounty, the general composition of his estate, and what he desires done with it, even thoughhis memory may have been impaired by age or disease.’“85 Testamentary capacity “need notrise to the level required to conduct business affairs.”86 Testamentary capacity is “ascertainedas of the date of execution of the contested document.”87 “Implicit in a lawyer’s oath of fidelityto the court is his duty not to draw, or to countenance the execution of a will by a person whohe knows lacks testamentary capacity.”88

A holographic will is one that is entirely in the testator’s handwriting and has noattesting witnesses. Thus, a holographic will is one that was not prepared by a lawyer but maynonetheless be valid. “A valid holographic will can be found where the extrinsic evidenceotherwise supports the conclusion that the writer intended that the paper should take effectonly after death.”89

11. Claims by Beneficiaries – Burden of Proof

In a plurality opinion, the Pennsylvania Supreme Court held that a named beneficiary ina will has standing to bring a legal malpractice claim against the drafting attorney.90 ThePennsylvania Supreme Court developed a two-part test for determining whether one is anintended third party beneficiary: (1) “the recognition of the beneficiary’s right must be



‘appropriate to effectuate the intention of the parties,’“ and (2) “the performance must ‘satisfyan obligation of the promisee to pay money to the beneficiary or the circumstances indicatethat the promisee intends to give the beneficiary the benefit of the promised performance.’“91

In accordance with this two-part test, Pennsylvania courts recognized “a narrow class of thirdparty beneficiaries” to attorney-client contracts.92

Case law since Guy was, for a long time, unclear on whether the beneficiary must bespecifically named in order to have standing. Recently, the Pennsylvania Supreme Court hasclarified its position, holding that only specifically named beneficiaries have standing to bring alegal malpractice claim as a third party beneficiary to the attorney-client contract.93 “To theextent the attorney has drafted testamentary documents, which have been fully executed bythe testator, such documents are conclusive evidence the testator intended to benefit thenamed beneficiaries[.]”94

12. Medical Malpractice Claims

In order to state a claim for medical malpractice, a plaintiff must “[e]stablish that thecare and treatment of the plaintiff by the defendant fell short of the required standard of careand that the breach proximately caused the plaintiff’s injury.”95 A medical malpractice plaintiff“[g]enerally must produce the opinion of a medical expert to demonstrate the elements of hiscause of action.”96 The Pennsylvania Supreme Court “[h]as reaffirmed, in the context of medicalmalpractice claims, the need for ‘detailed expert testimony because a jury of laypersonsgenerally lacks the knowledge to determine the factual issues of medical causation’“97 Theplaintiff must “[p]resent an expert who would testify to a reasonable degree of medicalcertainty that [defendant’s] alleged acts or omissions deviated from the applicable standard ofcare and that such deviation was the proximate cause of [plaintiff’s] injuries.”98

Thus, an attorney handling a plaintiff’s medical malpractice claim must be cognizant ofthe expert witness requirement and must obtain and produce an appropriate expert report. Inthe context of a legal malpractice case arising from an underlying medical malpractice claim,the legal malpractice plaintiff will be required to produce expert testimony both on the allegedlegal malpractice and on the underlying alleged medical malpractice.

13. Workers’ Compensation Liens

An attorney may be held liable for malpractice arising out of a workers’ compensationmatter, however, proceeds from the malpractice action are subject to subrogation under theWorkers’ Compensation Act. In Poole v. Workers’ Compensation Appeal Board,99 the claimantfell on ice outside his workplace and received workers’ compensation benefits for his injury.The claimant attempted to file a tort claim against the owner of the property where he fell;however, his attorney named the wrong defendant. His attempt to re-file against the properdefendant failed because the statute of limitations had run. The claimant sued his attorney forlegal malpractice and received a settlement. The employer asserted a subrogation lien against



the settlement. The claimant responded that legal malpractice was separate and unrelated tothe cause of his work injury.

Our Supreme Court held that the employer was entitled to subrogation.100 The courtreasoned that, unlike a medical malpractice claim, a legal malpractice claim is unique in that itrequires a claimant to “[d]emonstrate not merely an injury as a result of the malfeasance of hisprevious counsel, but also the malfeasance of the original tortfeasor which resulted in theunderlying injury.”101 The settlement of the legal malpractice claim demonstrated that theclaimant’s compensable injury was caused by the third party.102 The court held that therationale behind subrogation mandated the reimbursement of the employer’s subrogation lienfor the following reasons:

The employee is made whole for his injury while not receiving adouble benefit. The employer is not compelled to makecompensation payments for the negligence of a third party.Finally, while the underlying tortfeasor may have escaped liabilitydue to the statute of limitations and the actions of employee’sprevious counsel, the legal malpractice action places this liabilityon the proper party.103

14. Fair Debt Collection Practices Act Claims

a. The Requirements of the Claim

In order to bring a claim under the FDCPA, a plaintiff must demonstrate that as a“consumer” he received a “communication” from a “debt collector” in an attempt to collect a“debt.”104 A debt collector is “[a]ny person who uses any instrumentality of interstatecommerce or the mails in any business the principal purpose of which is the collection of anydebts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or dueor asserted to be owed or due another.”105 The term “debt collector” also includes “[a]nyperson who uses any instrumentality of interstate commerce or the mails in any business theprincipal purpose of which is the enforcement of security interests.”106 If an attorney’s conductfalls within those definitions, then he or she must adhere to the rules and regulations under theFDCPA.

In Daniels v. Baritz, the District Court for the Eastern District of Pennsylvania held that“[a]ttorneys who regularly engage in debt collection practices, apart form their legalrepresentation, are covered under the FDCPA.”107

b. Attorneys as Debt Collectors

Under the FDCPA, an attorney has a duty to avoid using false or deceptivecommunication and unfair or unconscionable means of collecting debt. Section 1692e(3)prohibits the “[f]alse representation or implication that any individual is an attorney or that any



communication is from an attorney.”108 Section 1692f(1) prohibits the use of unfair orunconscionable means to collect any debt, and it specifically prohibits the collection of any debtamount unless that amount is expressly authorized by the agreement creating the debt orpermitted by law.109

A communication is deceptive for purposes of the FDCPA if “[i]t can be reasonably readto have two or more different meanings, one of which is inaccurate, viewed from theperspective of the least sophisticated consumer.”110 Thus, a district court is required to analyzethe statutory requirements of the FDCPA from “the perspective of the least sophisticatedconsumer.”111 The Third Circuit further noted that, “[a]lthough established to ease the lot ofthe naive, the [least sophisticated debtor] standard does not go so far as to provide solace tothe willfully blind or non-observant. Even the least sophisticated debtor is bound to readcollection notices in their entirety.”112

15. Unfair Trade Practices Consumer Protection Law

The Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa. Stat. Ann. §201-1 et seq., does not apply to claims of attorney misconduct in the context of practicinglaw.113

16. Union Attorneys’ Liability

Pennsylvania courts have not yet addressed whether a union member may sue theunion attorney for legal malpractice allegedly committed during the grievance process in whichthe attorney is retained to represent the union.114 However, Pennsylvania courts haveconsidered similar issues and generally found that a union member’s sole remedy is a claimagainst the union for a breach of the duty of fair representation. A union member cannot assertthird party rights to a collective bargaining agreement where the union has the exclusive rightto pursue the member’s claims to arbitration.115 This is because to allow a union member toassert third party rights “[w]ould lead to chaos and a breakdown in the entire scheme ofcollective bargaining for which the parties have provided and contracted.”116 Thus, the onlyremedy available to a union member is a claim for an alleged breach of the duty of fairrepresentation against the union.117 Likewise, a union member cannot assert claims againstunion representatives arising from the collective bargaining agreement.118 “Officials of theUnion, acting in their authorized capacities, cannot be held individually liable in damages to amember-employee for failure to process a grievance since they are but agents responsible onlyto the Union itself[.]”119 These cases may be instructive as to whether a union attorney may beliable to a union member for legal malpractice.

17. Claims Against Defense Counsel Arising Out of Criminal Cases

In order to state a claim for legal malpractice in the criminal context, a criminaldefendant plaintiff must establish the following elements: (1) the employment of the attorney;(2) reckless or wanton disregard of the defendant/plaintiff’s interest on the part of the



attorney; (3) “but for” the attorney’s culpable conduct, the defendant/plaintiff would haveobtained an acquittal or complete dismissal of the charges; (4) as a result of the injury, thedefendant/plaintiff suffered damages; and (5) the plaintiff has pursued post-trial remedies andobtained relief which was dependent upon attorney error.120 This means that the plaintiff“[m]ust prove by a preponderance of the evidence that he did not commit any unlawful actswith which he was charged as well as any lesser offenses included therein.”121 If the plaintiffcannot establish his innocence, he cannot prevail on a legal malpractice case arising from hiscriminal defense.122 However, even if the plaintiff proves that he is innocent, that “[s]hall not bedispositive of the establishment of culpable conduct in the malpractice action.”123

It is important to note that a public defender owes the same duties and obligations tohis client as any privately retained attorney. “Once the appointment of a public defender in agiven case is made, his public or state function ceases and thereafter he functions purely as aprivate attorney concerned with servicing his client.”124 “His professional relationship with hisclient takes on all the obligations and protections attendant upon a private attorney-clientrelationship except one: the public pays his fee.”125 Likewise, a public defender is, therefore,not immune from liability for tortious conduct.126

C. PROVING LEGAL MALPRACTICE – THE CASE WITHIN THE CASE

1. Plaintiff’s Proofs

A plaintiff may bring a claim of legal malpractice in both tort and contract.127 In order toprevail in a claim for legal malpractice sounding in negligence, a plaintiff must plead and provethe following:

(a) employment of the attorney or other basis for duty;

(b) the failure of the attorney to exercise ordinary skill andknowledge; and

(c) that such negligence was the proximate cause of the actualdamages.128

It is very difficult to provide evidence sufficient to meet each and every element. The“case within a case” doctrine requires a plaintiff to demonstrate, by a preponderance of theevidence, that they would have prevailed in the underlying action had it not been for thedefendant attorney’s negligence.129 It is insufficient for a plaintiff to speculate as to whether heor she would have prevailed in the underlying matter. A plaintiff bears the burden ofestablishing, by a preponderance of the evidence, that he or she has sustained “actual loss” as aproximate result of the defendant attorney’s negligence.130 This obligation is not fulfilled simplyby “seeding doubt” as to what might have occurred in the absence of defendant-attorney’salleged negligence; rather, the plaintiff must establish, with competent evidence, that he or shesustained an actual loss as a proximate result of the defendant-attorney’s acts or omissions.131



Our Supreme Court has stated:

An essential element to this cause of action is proof of actual lossrather than a breach of a professional duty causing only nominaldamages, speculative harm or the threat of future harm. Damagesare considered remote or speculative only if there is uncertaintyconcerning the identification of the existence of damages ratherthan the ability to precisely calculate the amount or value ofdamages. In essence, a legal malpractice action in Pennsylvaniarequires the plaintiff to prove that he had a viable cause of actionagainst the party he wished to sue in the underlying case and thatthe attorney he hired was negligent in prosecuting or defendingthat underlying case (often referred to as proving a “case within acase”).132

It is important to remember that it is the “practice” of law, not the “perfection” of law.

To state a claim of legal malpractice based upon a theory of breach of contract, aplaintiff must allege: (1) the existence of a contract, including its essential terms; (2) a breach ofa duty imposed by the contract; and (3) resultant damages.133 The plaintiff is not relieved of hisburden to prove the “case within a case” simply by recasting the negligence claim as a breach ofcontract claim.

A party seeking damages for breach of contract is required to prove their allegeddamages “with reasonable certainty.” Damages may not be awarded “on the basis ofspeculation or conjecture.”134 Where a plaintiff brings a legal malpractice claim sounding inbreach of contract, the salient inquiry focuses upon whether an attorney breached a specificcontractual term, made and breached a specific promise upon which the plaintiff reasonablyrelied to his or her detriment, or failed to follow specific instructions from the client.135 Anattorney who agrees for a fee to represent a client is by implication agreeing to provide thatclient with professional services consistent with those expected of the profession at large.136 “Inthe narrow realm of legal malpractice claims based on an alleged breach of contract betweenan attorney and a client, the appellate courts of this Commonwealth have jurisprudentiallyestablished, and refined through time, the specific facts which a plaintiff is required todemonstrate in order to establish that a breach of a contractual duty on the part of theattorney has occurred.”137

[A]n assumpsit claim based on breach of the attorney-clientagreement is a contract claim and the attorney’s liability in thisregard will be based on terms of that contract. Thus, if anattorney agrees to provide his or her best efforts and fails to doso, an action will accrue. Of course an attorney who agrees for afee to represent a client is by implication agreeing to provide that



client with professional services consistent with those expected ofthe profession at large.138

2. Causation

It is well settled that the Restatement (Second) of Torts § 431, regarding causation, isthe law in Pennsylvania.139 Pennsylvania courts have adopted this “substantial factor” approachconcerning the evaluation of causation.140 The law establishes that a claimant, as a matter oflaw, may not base his/her claim upon speculation and conjecture.141 This issue of “predicting”the outcome of an action but for the actions/omissions of an attorney in the underlying actionswas previously recognized as pure speculation by the court.142 In other words, the plaintiff mustalso establish that the defendant’s actions and/or omissions were a substantial factor inbringing about the “actual” harm as claimed by the plaintiff.143

Proximate cause must be determined by the judge, and it must be established beforethe question of actual cause is put to the jury.144 “Proximate causation” in a legal malpracticeaction has been defined as “[t]hat which, in a natural and continuous sequence, unbroken byany sufficient intervening cause, produced injury, and without which the result would not haveoccurred.”145 To determine proximate cause, “[t]he question is whether the defendant’sconduct was a ‘substantial factor’ in producing the injury.”146

For example, in a case where a plaintiff claims that an attorney negligently drafted amarital settlement agreement, the plaintiff must present sufficient evidence that the partieswould have agreed to the terms of the marital settlement agreement had the attorney placedcertain provisions in the agreement. If the plaintiff cannot prove sufficient proof that if themarital settlement agreement was redrafted, husband and wife would have agreed to theterms, then causation is lacking, and dismissal would be warranted.

The plaintiff must prove that the underlying legal representation would have achievedwhatever the plaintiff hoped to achieve.147 If the underlying case would have failed regardlessof the defendant’s professional negligence, then the plaintiff has not suffered actual loss.148 TheSuperior Court affirmed a trial court’s grant of summary judgment in favor of the defendantsdue to lack of evidence regarding causation opining that the plaintiff suffered no actualinjury.149 Thus, while the court acknowledged the importance of compensating plaintiffswronged by their counsel, it was equally mindful of the importance of safeguarding defendantattorneys from being forced to pay sums greater than that which could have been collected inthe absence of the defendant attorney’s alleged malpractice. In other words, plaintiffs suingtheir attorneys are not permitted to use their legal malpractice claim as an opportunity to shootto the moon; rather, their recovery is strictly limited to that which they would have recoveredin the absence of their counsel’s negligence or breach of contract.



3. Use of Speculation and/or Conjecture Are Improper to Prove Causation

The law establishes that a claimant, as a matter of law, may not base his/her claim uponspeculation and conjecture.150 This issue of “predicting” the outcome of an action but for theactions/omissions of an attorney in the underlying actions was previously recognized as purespeculation by the court.151 At issue in Spillman v. Wallen was whether the outcome of theunderlying case would have been any different had a timely petition for allocatur been filed.The United States District Court in analyzing the issue looked to the plethora of established caselaw in the Commonwealth and determined that, “[e]ven if the Supreme Court did grant Mr.Spillman’s petition, that certainly does not mean the Supreme Court would have decided in hisfavor. I agree with the Sacks defendants that Mr. Spillman’s claim for damages in this regard ispure conjecture and that no reasonable jury could find otherwise.”152 The PennsylvaniaSuperior Court has specifically addressed this issue of speculation in the legal malpracticecontext on a number of occasions. By way of example, in Pashak, the plaintiff-wife filed a claimfor legal malpractice against her husband’s former counsel.153 She alleged that the defendantattorney recommended that her husband settle his federal personal injury claim for $100,000,which the husband did, and as a result of the settlement, the husband’s statutorycompensation benefits were terminated.154 Subsequently, the plaintiff-wife was advised thatshe, too, might be precluded from recovering any benefits as a consequence of her husband’ssettlement. She thereafter filed suit against her husband’s counsel, alleging that counsel’sadvice precluded her from ever recovering statutory compensation benefits.155 Counselresponded by filing preliminary objections and raised the remote nature of the plaintiff-wife’salleged damages as too speculative to warrant recovery. The trial court agreed and sustainedthe defendant’s preliminary objections.

On appeal, the Superior Court upheld the trial court’s decision and noted thatPennsylvania has long recognized that attorneys are not liable for speculative damages. ThisHonorable Court noted:

The test of whether damages are too remote or speculative hasnothing to do with the difficulty in calculating the amount, butdeals with the more basic question of whether there areidentifiable damages… . Thus, damages are speculative only if theuncertainty concerns the fact of damages rather than theamount.156

The Superior Court agreed that the plaintiff-wife’s allegation that she might have receivedstatutory compensation benefits in the absence of her husband’s counsel’s negligence was toospeculative to give rise to a cognizable claim for legal malpractice and, therefore, affirmed thedecision of the trial court.157

Similarly, in Mariscotti, the plaintiff brought suit against her former attorney in a divorceaction claiming the attorney did not properly valuate certain assets of her husband and that,but for this improper valuation, she would have been able to settle the case for a higher



amount.158 The Superior Court rejected the plaintiff’s argument and determined that theplaintiff’s entire argument was based upon speculation, finding that “[w]hether she could haveobtained a better settlement is anyone’s guess.”159

This issue of legal malpractice claims based on prediction or speculation as to whatmight have occurred under different circumstances was addressed in Muhammad v.Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991), wherein theSupreme Court clearly stated:160

It is impossible to state whether a jury would have awarded moredamages if a suit had been filed against another potential party orunder another theory of liability. It is indeed possible that asmaller verdict would have been reached or a defense verdictultimately would have been rendered. Thus, sanctioning these“Monday-morning quarterback” suits would be to permit lawsuitsbased on speculative harm; something with which we cannotagree.161

4. Actual Damages

As with causation, damages cannot be based on speculation or conjecture. Speculativedamages will be insufficient to support a claim for malpractice. Damages must be real, tangibleand quantifiable. Pennsylvania Courts do not permit the “Monday-morning quarterback.” It isimpossible to state whether a jury would have awarded more damages if a suit had been filedagainst another potential party or under another theory of liability. It is indeed possible that asmaller verdict might have been reached or a defense verdict ultimately might have beenrendered. Thus, sanctioning these “Monday-morning quarterback” suits would be to permitlawsuits based on speculative harm; something with which the court cannot agree.162

“An essential element of a claim [of legal malpractice] pursued under either theory [tortor contract] is ‘proof of actual loss rather than a breach of a professional duty causing onlynominal damages, speculative harm, or the threat of future harm’.”163 The plaintiff has theburden of presenting sufficient evidence by which damages can be determined on somerational basis, other than by pure speculation or conjecture.164 A party seeking damages forbreach of contract is required to prove their alleged damages “with reasonable certainty.”Damages may not be awarded “on the basis of speculation or conjecture.”165

5. The Rules of Professional Conduct as a Basis of Liability

It is well-settled in Pennsylvania that an alleged breach of a Rules of ProfessionalConduct cannot serve as the basis for a claim that an attorney breached his or her duties.166 Thepreamble to the Rules itself specifically prohibits plaintiffs from offering this type of testimony:



Violations of a Rule should not give rise to a cause of action norshould it create any presumption that a legal duty has beenbreached. In addition, violation of a Rule does not necessarilywarrant any other nondisciplinary remedy, such as disqualificationof a lawyer in pending litigation. The Rules are designed toprovide guidance to lawyers and to provide a structure forregulating conduct through disciplinary agencies. They are notdesigned to be a basis for civil liability. Furthermore, the purposeof the Rules can be subverted when they are invoked by opposingparties as procedural weapons. The fact that a Rule is a just basisfor a lawyer’s self-assessment, or for sanctioning a lawyer underthe administration of disciplinary authority, does not imply thatan antagonist in a collateral proceeding or transaction hasstanding to seek enforcement of the Rule. Accordingly, nothing inthe Rules should be deemed to augment any substantive legalduty of lawyers or the extra-disciplinary consequences of violatingsuch a duty.167

The Rules of Professional Conduct are not substantive law but, rather, serve to addressthe grounds for disciplinary action against attorneys.168 The mere fact that an attorney’s actionmay violate a Rule of Professional Conduct does not mean that such activity is also actionable atlaw.169

Courts are reluctant to allow this type of evidence to be presented to a jury.Pennsylvania Rule of Evidence 403 specifically provides that evidence, including relevantevidence, should be precluded where its probative value is outweighed by the danger of unfairprejudice, confusion of the issues, or misleading the jury, among other considerations.170 If ajury is permitted to hear testimony from a plaintiff’s expert concerning purported violations ofthe Rules of Professional Conduct, there is a substantial likelihood that the jury will erroneouslyand improperly confuse violations of the Rules with deviations from the standard of care. Thereis also the substantial likelihood that the jury will be misled into believing that a violation of theRules is tantamount to negligence, or that they can find negligence simply because they havefound a violation of a Rule of Professional Conduct. The only way to guarantee that the jurydoes not reach such an erroneous conclusion is to preclude this type of testimony.

6. Contributory Negligence of the Client

In a legal malpractice action, a client’s contributory negligence is an absolute defense toan attorney’s liability for any breach in the standard of care and there is no application of anyprinciples of comparative negligence.171 “Contributory negligence is conduct on the part of aplaintiff which falls below the standard of care to which he should conform for his ownprotection and which is a legally contributing cause, cooperating with the negligence of thedefendant, in bringing about plaintiff’s harm.172 Contributory negligence may arise from a



plaintiff’s carelessness or from his failure to exercise reasonable diligence for his ownprotection or any act or inaction by the plaintiff that serves as a clear hindrance to theattorney’s ability to adequately protect or advance the client’s interest.173

7. Exercise of Professional Judgment

An informed judgment, even if subsequently proven to be erroneous, is notnegligence.174 “An attorney is not a guarantor of success and is not liable to a client for failureto succeed unless the failure to succeed is the result of mismanagement through bad faith,inattention or want of professional skill. There is no presumption that an attorney had beenguilty of want of care arising from a bad result. To the contrary, an attorney is presumed tohave discharged the duties of his representation until the opposition has been made toappear.”175 In this Commonwealth, the litigant is the complete master of his own cause ofaction in matters of substance; he may press it to the very end regardless of the facts and lawarrayed against him.176

D. PROVING DAMAGES – THE PLAINTIFF’S BURDEN

1. Proving the Case Through an Expert

Expert testimony is required in order for the plaintiff to meet his/her prima facieburdens of proof with respect to claims of professional negligence and breach of contract withrespect to establishing the specific standard of care attributed to an attorney as well as howthat attorney is alleged to have deviated from this standard of care. “Our Supreme Court hasheld that ‘expert testimony is necessary to establish negligent practice in any profession’.”177

“Although such a general statement is not a concrete pronouncement as to any one profession,it exhibits a recognition that when dealing with the higher standards attributed to aprofessional in any field, a layperson’s views cannot take priority without guidance as to theacceptable practice in which the professional must operate.”178 “By its very nature, the specificstandard of care attributed to legal practitioners necessitates an expert witness’ explanationwhere a jury sits as the fact finder.”179 In Storm v. Golden, 538 A.2d 61 (Pa. Super. Ct. 1988), theSuperior Court disagreed with the appellant’s assertions that the sale of real estate waselementary.180 The court found that whether an attorney failed to exercise a reasonable degreeof care and skill related to common professional practice in handling a real estate transactionwas a question of fact outside the normal range of the ordinary experience of laypersons.

2. Use of Expert Testimony

“Expert testimony becomes necessary when the subject matter of the inquiry is oneinvolving special skills and training not common to the ordinary lay person.”181 Where theissues giving rise to the claim of professional malpractice are beyond the acumen of a layperson, the plaintiff must introduce the testimony of an expert to explain the standard of careto the finder of fact, as well as the manner in which the defendant attorney is alleged to havedeviated from the standard.182



Similarly, claims for breach of contract require expert testimony because the claims aretypically so closely aligned with a claim of professional negligence, i.e., simply a re-cast ofallegations of breach of duties. With regards to a claim of breach of contract, expert testimonyis required in order to establish how an attorney allegedly breached his contractualobligations/duties to a plaintiff.183 This requirement is not obviated simply because a plaintiffelects to characterize the breach in question as breach of contract.184

3. Establishing the Viability of the Claim

The Supreme Court of Pennsylvania has described the unique nature of a legalmalpractice claim:

A legal malpractice action is distinctly different from any othertype of lawsuit brought in the Commonwealth. A legal malpracticeaction is different because . . . a plaintiff must prove a case withina case since he must initially establish by a preponderance of theevidence that he would have recovered a judgment in theunderlying action. . . . It is only after the plaintiff proves he wouldhave recovered a judgment in the underlying action that theplaintiff can then proceed with proof that the attorney heengaged to prosecute or defend the underlying action wasnegligent in the handling of the underlying action and thatnegligence was the proximate cause of the plaintiff’s loss since itprevented the plaintiff from being properly compensated for hisloss.185

Therefore, an important question in a legal malpractice action is whether the plaintiff “[h]ad aviable cause of action against the party he wished to sue in the underlying case and that theattorney he hired was negligent in prosecuting or defending that underlying case (oftenreferred to as proving a ‘case within a case’).”186

4. Establishing the Value of the Claim

Damages may not be awarded “on the basis of speculation or conjecture.”187 Where aplaintiff brings a legal malpractice claim sounding in breach of contract, the salient inquiryfocuses upon whether an attorney breached a specific contractual term, made and breached aspecific promise upon which the plaintiff reasonably relied to his or her detriment, or failed tofollow specific instructions from the client.188 “In the narrow realm of legal malpractice claimsbased on an alleged breach of contract between an attorney and a client, the appellate courtsof this Commonwealth have jurisprudentially established, and refined through time, the specificfacts which a plaintiff is required to demonstrate in order to establish that a breach of acontractual duty on the part of the attorney has occurred.”189



[An assumpsit claim based on breach of the attorney-clientagreement] is a contract claim, and the attorney’s liability in thisregard will be based on terms of that contract. Thus, if anattorney agrees to provide his or her best efforts and fails to doso, an action will accrue. Of course, an attorney who agrees for afee to represent a client is by implication agreeing to provide thatclient with professional services consistent with those expected ofthe profession at large.190

5. Lost Opportunities and/or Lost Profits

It is insufficient for a plaintiff to rely upon speculative or unrealized “future harm” tosatisfy the requirement that the attorney’s alleged negligence be a proximate cause of theplaintiff’s actual damages. “The mere breach of a professional duty, causing only nominaldamages, speculative harm or threat of future harm – not yet realized – does not suffice tocreate a cause of action for negligence.”191 While a plaintiff need not provide an exact dollarfigure in substantiating his or her damages, a plaintiff cannot simply alleged to have been“damaged” without establishing the actual existence of such damages and providing the factfinder with evidence of the same. Plaintiffs suing their attorneys are not permitted to use theirlegal malpractice claims as an opportunity to shoot to the moon; rather, their recovery isstrictly limited to actual loss. Plaintiffs are not entitled to recover more than they would haverecovered had the alleged breach never occurred.

6. Damages for Emotional Distress

While the Pennsylvania Supreme Court has yet to formally recognize a cause of actionfor intentional infliction of emotional distress,192 the Pennsylvania Superior Court hasrecognized the cause of action and has held that, “[i]n order for a plaintiff to prevail on such aclaim, he or she must, at the least, demonstrate intentional outrageous or extreme conduct bythe defendant, which causes severe emotional distress to the plaintiff.”193 Swisher v. Pitz, 868A.2d 1228, 1230 (Pa. Super. Ct. 2005) (discussing how the Pennsylvania Supreme Court hasindicated that, were it to recognize a cause of action for intentional infliction of emotionaldistress, these would be the requirements necessary for a plaintiff to prevail on such a claim).194

In order to sustain a claim for intentional infliction of emotional distress, a plaintiff isrequired to prove: (a) the exercise of extreme and/or outrageous conduct; (b) that the conductwas intentional and/or reckless; (c) that the conduct caused emotional distress; and (d) actualdamages amounting to severe emotional distress.195 While Pennsylvania courts recognize acause of action for intentional infliction of emotional distress, the courts allow recovery in onlyvery egregious cases.196 Simply put, plaintiffs must establish that: (1) defendants’ conduct wasintentional or reckless; (2) defendants’ conduct was extreme and outrageous; (3) defendants’conduct cause emotional distress; and (4) the resultant emotional distress was severe.



In order for a plaintiff’s entitlement to such recovery to survive a dispositive motion, acourt has to be satisfied that the alleged misconduct meets the incredibly high standard asforth by the courts of this Commonwealth. The outrageous conduct requirement has beendefined as follows:

Liability has been found only where the conduct has been sooutrageous in character, and so extreme in degree, as to gobeyond all possible bounds of decency, and to be regarded asatrocious, and utterly intolerable in a civilized society. Generally,the case is one in which the recitation of the facts to an averagemember of the community would arouse his resentment againstthe actor, and lead him to exclaim, ‘Outrageous!’197

In addition, a plaintiff seeking to recover damages for emotional harm is required toestablish that he or she sustained actual, physical injury as a result of the emotional harm.198 Inthe absence of such physical injury, a plaintiff cannot recover damages for emotionaldistress.199 Plaintiffs’ claims must be supported, at the very least, by competent medicalevidence.200

It is basic tort law that an injury is an element to be proven. Giventhe advanced state of medical science, it is unwise andunnecessary to permit recovery to be predicated on an inferencebased on the defendant’s ‘outrageousness’ without expertmedical confirmation that the plaintiff actually suffered theclaimed distress. Moreover, the requirement of some objectiveproof of severe emotional distress will not present aninsurmountable obstacle to recovery. Those truly damaged shouldhave little difficulty in procuring reliable testimony as to thenature and extent of their injuries.201

“The definition of ‘outrageousness’ is subjective and nebulous; thus, the availability ofrecovery for IIED is ‘highly circumscribed,’ and objective proof of an injury is required.”202 Grayv. Huntzinger, 147 A.3d 924 (Pa. Super. Ct. 2016).

In sum, our Supreme Court clearly articulated in Kazatkzy that, to the extent the tort ofIIED is recognized in this Commonwealth, recovery is limited to those cases in which competentmedical evidence of emotional distress is presented by the claimant. See also Cassell v.Lancaster Mennonite Conference, 2003 Pa. Super. 387, 834 A.2d 1185, 1189 n.3 (Pa. Super.2003) (“Expert medical testimony is necessary to establish that a plaintiff actually suffered theclaimed emotional distress.”); Wecht v. PG Pub. Co., 1999 Pa. Super. 28, 725 A.2d 788, 791 (Pa.Super. 1999) (“The court [in Kazatkzy] held that plaintiffs could not succeed absent medicalconfirmation that they actually suffered the claimed emotional distress.”); Shiner v. Moriarty,706 A.2d 1228, 1239 (Pa. Super. 1998) (“Expert medical testimony is required to establish aclaim [**14] for intentional infliction of emotional distress.”); Britt v. Chestnut Hill College, 429



Pa. Super. 263, 632 A.2d 557, 561 (Pa. Super. 1993) (“In addition to requiring that a plaintiffestablish that the conduct complained of was outrageous, the Pennsylvania Supreme Court hasrequired that the plaintiff present competent medical evidence to support the claim.”).203

7. Punitive Damages

In Pennsylvania, the imposition of punitive damages is an extreme remedy reserved forthe most exceptional circumstances.204 Punitive damages are awarded to punish a defendantfor outrageous conduct. “Outrageous conduct” is described as “[a]cts done with a bad motiveor with a reckless indifference to the interests of others.”205

Pennsylvania has adopted the Restatement (Second) of Torts § 908 regarding punitivedamages. Chambers v. Montgomery, 192 A.2d 355 (Pa. 1963). The Restatement defines punitivedamages as follows:

Punitive damages are damages . . . awarded against a person topunish him for his outrageous conduct and to deter him andothers like him from similar conduct in the future. Punitivedamages may be awarded for conduct that is outrageous becauseof the defendant’s evil motive or his reckless indifference to therights of others.

Restatement (Second) of Torts, §908(1), (2).

The Restatement goes on to emphasize that the imposition of punitive damages shouldbe reserved only for exceptional circumstances and is not to be utilized as a means of simplecompensation to the plaintiff.

Since the purpose of punitive of damages is not compensation ofthe plaintiff but punishment of the defendant and deterrence,these damages can be awarded only for conduct for which thisremedy is appropriate, which is to say, conduct involving someelement of outrage similar to that usually found in crime. Theconduct must be outrageous, either because the defendant’s actsare done with an evil motive or because they are done withreckless indifference to the rights of others...reckless indifferenceto the rights of others and conscious action in deliberate disregardof them may provide the necessary state of mind to justifypunitive damages... .206

In order to justify the imposition of punitive damages, plaintiffs must make somemeasurable demonstration that the tortfeasor acted with “reckless disregard” for the safety,health or well-being of the injured plaintiff. The Restatement (Second) of Torts defines“reckless disregard” at § 500:



The actor’s conduct is in reckless disregard of the safety ofanother if he does an act or intentionally fails to do an act which itis his duty to the other to do, having or having reason to know offacts which would lead a reasonable man to realize not only thathis conduct creates an unreasonable risk of physical harm toanother, but also that such risk is substantially greater than thatwhich it is necessary to make his conduct negligent.207

The comments to § 500 further extrapolate that in order to be “reckless,” thedefendant’s conduct “[m]ust be something more than negligent… it must involve a risk of harmto others substantially in excess of that necessary to make the conduct negligent.”208 Thecomments explain that the distinction between reckless behavior and negligent behavior “[i]s adifference in the degree of risk, but this difference of degree is so much as to amountsubstantially to a difference in kind.”209 Thus, behavior which is negligent will not rise to thelevel of recklessness absent some allegation of wanton and unreasonable disregard for thehealth or welfare of others, with said disregard being so egregious as to take the behavior outof the realm of “negligence” and elevate it to the level of “recklessness.”

Punitive damages are proper when a person’s actions are of such an outrageous natureas to demonstrate intentional, willful, wanton, or reckless conduct. Accordingly, inPennsylvania, to establish a basis for punitive damages, the conduct of a claimed tortfeasormust have been committed willfully, maliciously, or so intentionally as to indicate willfuldisregard for the rights of the injured party.210 The conduct must be malicious, wanton orwillful.211 Punitive damages are not appropriate for conduct which is merely negligent.212 Infact, in Takes v. Metropolitan Edison Co., 695 A.2d 397, 400 n.4 (Pa. 1997), the PennsylvaniaSupreme Court explained, “Neither mere negligence, nor gross negligence can support anaward for punitive damages.”213

In determining whether to award punitive damages, the emphasis is on the conduct ofthe defendant, not the harm to the plaintiff.214 Conduct is only sufficient to warrant punitivedamages where “[a] defendant knows, or has reason to know, of facts which create a highdegree of risk of physical harm to another, and deliberately proceeds to act in consciousdisregard of, or indifference to that risk.”215 Consequently, the defendant’s state of mind isrelevant to this determination.216 The proper focus is on the “[a]ct itself together with allcircumstances involving the motive of the wrongdoer and the relations between the parties.”217

“If the defendant actually does not realize the high degree of risk involved, even though areasonable man in his position would, the mental state required for the imposition of punitivedamages under Pennsylvania law is not present.”218

8. Settlements Barring Malpractice Actions

The courts of this Commonwealth “[w]ill not permit a suit to be filed by a dissatisfiedplaintiff against his attorney following a settlement to which that plaintiff agreed, unless thatplaintiff can show he was fraudulently induced to settle the original action. An action should



not lie against an attorney for malpractice based on negligence and/or contract principles whenthat client has agreed to a settlement. Rather, only cases of fraud should be actionable.”219 TheSupreme Court decided:

To disallow negligence or breach of contract suits against lawyersafter a settlement has been negotiated by the attorneys andaccepted by the clients is that to allow them will create chaos inour civil litigation system. Lawyers would be reluctant to settle acase for fear some enterprising attorney representing adisgruntled client will find a way to sue them for something that‘could have been done, but was not.’ We refuse to endorse a rulethat will discourage settlements and increase substantially thenumber of legal malpractice cases. A long-standing principle ofour courts has been to encourage settlements; we will not nowact so as to discourage them.

***

Numerous commentators have addressed the problem ofovercrowded courts and the importance of settlements to theefficient flow of justice. A fundament of those articles is thatsettlement of civil litigation is critical to the courts’ managementof caseloads. Without settlement of cases, litigants would have towait years, if not decades, for their day in court. Nearly 90% of allmatters in controversy end in settlement. Were we, as a court, toencourage litigation that would undermine the current rate ofsettlements, we would do a grave injustice and disservice to thecitizens of the Commonwealth. ‘The settlement of cases beforetrial is one of the greatest potentials for assisting the courts toreduce their caseloads.’ As courts are fond of repeating, ‘[j]usticedelayed is justice denied.’

***

Mindful of these principles, we foreclose the ability of dissatisfiedlitigants to agree to a settlement and then file suit against theirattorneys in the hope that they will recover additional monies. Topermit otherwise results in unfairness to the attorneys who reliedon their clients’ assent and unfairness to the litigants whose caseshave not yet been tried. Additionally, it places an unnecessarilyarduous burden on an overly taxed court system.220

Muhammad has been called into question.221 Three justices concluded that theSupreme Court’s decision in Muhammad should be limited to the facts of that case. Three



concurring justices, however, disagreed and emphasized the continuing need for, and validityof, this court’s decision in Muhammad. In McMahon v. Shea, 688 A.2d 1179 (Pa. 1997), thePennsylvania Supreme Court affirmed and held that law firm defendants had to exercise therequisite degree of professional care and skill in the settlement of a divorce case by advising thehusband of the consequences of a separation agreement entered into with the wife, and theimpact of either incorporating or merging the agreement into the final divorce decree issued tothe husband and his wife. The court found that the husband’s action did not lie in the amountthat he had to pay in a settlement, but was based on the law firm’s failure to advise him of thewell-established impact of the agreement. The court rejected the law firm’s assertion that thehusband’s action merely second-guessed the law firm’s strategy, and because the law firmshould not be shielded from liability in failing to exercise skill and care in the creation andimplementation of a settlement.

9. Settlements to Avoid Litigation Catastrophes

In Gen. Nutrition Corp. v. Gardere Wynne Sewell, LLP, 2008 U.S. Dist. LEXIS 64585 (W.D.Pa. Aug. 20, 2008), the court permitted the plaintiff to maintain a legal malpractice suit despitesettlement of the underlying case. the attorney defendant advised GNC that their contract wasgoverned by the UCC and, therefore, exposure for termination of its contract with Franklinwould not exceed $3 million. Based on this advice, GNC terminated its contract. As a result,Franklin sued for breach of contract. The court found that the contract was not governed by theUCC and damages could exceed $34 million. Due to the potential for large exposure, GNCsettled with Franklin, and then GNC filed this suit against the attorney defendants. The courtdetermined that the settlement of the underlying case by GNC, resulting in its alleged damagesbeing made actual and concrete. Therefore, the court concluded that the settlement did not actto bar a subsequent malpractice action.

10. Attorney Fees

It is well settled that plaintiffs in civil actions such as the instant action are not entitledto recover attorneys’ fees.222 Pursuant to the “American Rule,” litigants bear their own costs ofsuit unless there is a statutory authorization for such recovery, an agreement of the parties, oranother established exception.

E. THE CERTIFICATE OF MERIT

1. The Requirement

In 2003, concerned with the frequency of meritless claims against professionals, thePennsylvania Supreme Court adopted and made effective the requirement of filing a certificateof merit in professional liability actions, governed by Pa. R.C.P. 1042.1 et seq. (“Certificate ofMerit Rules”). The Certificate of Merit Rules apply to any action asserted “by or on behalf of apatient or client of the licensed professional,” including attorneys, which action is based uponan allegation that the attorney deviated from an acceptable professional standard.223



The Certificate of Merit Rules, therefore, do not apply to claims by non-clients againstattorneys for intentional conduct or to claims for ordinary negligence as opposed toprofessional negligence.224 That said, a plaintiff may not avoid the filing of a certificate of meritby labeling a professional liability claim as something else, and the substance of the complaintwill control rather than its form.225

Where the Certificate of Merit Rules are applicable, the attorney for the plaintiff, or theplaintiff if not represented, is required to file a certificate of merit within 60 days of the filing ofthe complaint, which date runs from the filing of the original complaint raising a professionalliability claim. Subsequent amendments to the complaint do not toll the period in whichplaintiff is required to file a certificate of merit.226 However, upon demonstration of good cause,a plaintiff is permitted to file a motion for an extension of time to file a certificate of merit for aperiod not to exceed 60 days, as long as the motion is filed prior to the expiration of the duedate for the certificate of merit.227

The certificate of merit is required to certify that “[a]n appropriate licensed professionalhas supplied a written statement that there exists a reasonable probability that the care, skill,or knowledge exercised or exhibited in the treatment, practice, or work that is the subject ofthe complaint fell outside acceptable professional standards and that such conduct was a causein bringing about the harm,” or, in the case of vicarious liability, that the claim is based solely onallegations that other licensed professionals for whom the defendant is responsible deviatedfrom an acceptable professional standard.228 A separate certificate of merit is required as toeach attorney or law firm against whom a professional liability claim is asserted.229 Until thecertificate of merit is filed, the defendant is not required to file a responsive pleading, nor maythe plaintiff seek discovery without leave of the court.230

In cases where an attorney signs the certificate of merit, the actual written statement bythe “appropriate licensed professional” is not required to be attached to the certificate of meritor produced to the defendant unless and until the case is dismissed. Upon the dismissal of theprofessional liability claims, the defendant may make a request for the written statement uponwhich the certificate of merit was based, which the plaintiff must then produce within 30days.231

However, this Rule later became problematic in cases of pro se plaintiffs, whereby suchplaintiffs, either not familiar with the Certificate of Merit Rules or apt to abuse the system,were falsely certifying that licensed professionals had provided the required written statementby an appropriate licensed professional. These pro se plaintiffs were frustrating the purpose ofthe Certificate of Merit Rules and allowing non-meritorious actions to clog the court system.Therefore, the Supreme Court adopted Rule 1042.3(e), providing that a plaintiff proceeding prose must attach the statement of the appropriate licensed professional to the certificate of merititself.232

Alternatively, the plaintiff may file a certificate of merit which certifies that experttestimony is unnecessary for the prosecution of the claim. In such cases, where a plaintiff or his



attorney signs such a certificate, the plaintiff will be bound by that assessment and will later beprecluded from introducing expert testimony, absent extraordinary circumstances.233

Therefore, the filing of such a certificate of merit exposes the plaintiff to a preliminarydispositive motion, whereby the defendant-attorney may argue that expert testimony isrequired to prosecute the claim, but that the plaintiff is precluded from doing so by virtue ofthe binding certification that expert testimony is unnecessary. In professional liability actions,expert testimony is generally required, except in circumstances where the matter is so simple,and the lack of skill is so obvious, as to be within the range of the ordinary experience andcomprehension of a layperson.234

2. The Procedure in Pennsylvania State Court

If a certificate of merit is filed but does not comply with the requirements of Rule1042.3(b), the defendant may file a motion to strike, and the court shall grant the plaintiff 20days to cure the defect.235

To the extent a plaintiff fails to file a certificate of merit within 60 days of the filing ofthe complaint, in Pennsylvania state court, the defendant is entitled to file a praecipe to enter ajudgment of non pros. The judgment may be without notice, and without involvement of thecourt, as long as the defendant filed and served a written notice of intention to enter thejudgment at least 30 days prior to taking the judgment and no motions concerning thecertificate of merit are pending before the court.236 The notice of intention may not be filed bythe defendant until the 31st day after the filing of the complaint, thereby allowing thedefendant to take a judgment of non pros at the first opportunity after the 60th day, but givingthe plaintiff at least 30 days notice of the defendant’s intent to do so.237

Upon the defendant’s filing and service of the notice of intention to enter judgment ofnon pros, a plaintiff has options if additional time is needed or if there is some question as towhether a certificate of merit is required. First, upon receiving a notice of intention to enterjudgment of non pros, a plaintiff may file a motion for extension of time, and upon thedemonstration of good cause, the court may extend the time to file the certificate of merit for aperiod not to exceed 60 days. There are no restrictions upon the number of motions forextension that may be filed, as long as the motion is timely and is based upon good cause.238

Second, to the extent the plaintiff believes that the Certificate of Merit Rules are notapplicable, i.e., that the lawsuit is not a professional liability action based upon a deviation of aprofessional standard, the plaintiff may file a motion seeking a determination by the court as tothe necessity of filing a certificate of merit. The filing of this motion tolls the time period withinwhich a certificate of merit must be filed until the court rules upon the motion. If the courtdetermines a certificate of merit is required, the plaintiff will then have 20 days in which to doso after the court enters its order.239 Should a plaintiff fail to file such a motion, and a judgmentof non pros is entered, a plaintiff may be precluded from raising any argument that a certificateof merit was not required.240



3. Procedure in Pennsylvania Federal Court

The certificate of merit requirement in Pennsylvania has been held to be substantivestate law that must be applied in federal court.241 However, some federal courts have struggledas to which specific rules pertaining to the certificate of merit must be interpreted assubstantive law, particularly where there is no similar counterpart in federal court. Forexample, there is no mechanism in federal procedure to take a “judgment of non pros” as existsin Pennsylvania state court.

In Schmigel v. Uchal, 800 F.3d 113 (3d Cir. 2015), the United States Court of Appeals forthe Third Circuit answered two important questions regarding the application of the Certificateof Merit Rules in federal court. First, the Third Circuit held that the filing and service of a noticeof intention to enter judgment of non pros is substantive law that must be applied in federalcourt. Therefore, no judgment of any kind may be taken in federal court without the required30-day notice period afforded to plaintiffs under the Pennsylvania rules. Second, the ThirdCircuit held that the proper mechanism to obtain dismissal of an action against a licensedprofessional for the failure to file a certificate of merit is via a motion for summary judgment.The Third Circuit reasoned that the certificate of merit requirement and its conditions are“facts” that are “not part of the complaint” and “do not have any effect on what is included inthe pleadings.” Moreover, the Third Circuit held that a motion for summary judgment “can befiled whenever appropriate.”242 Therefore, under appropriate circumstances, a motion forsummary judgment may be filed even before a defendant files a responsive pleading to acomplaint.

4. Effect of Judgment of Non Pros, Remedies and Relief

A judgment of non pros, including for the failure to file a certificate of merit, is notconsidered an adjudication on the merits, and, therefore, principles of res judicata do not applyto bar a subsequent action based upon the same cause of action.243 However, while principlesof res judicata may not apply to bar a subsequent lawsuit, the statute of limitations certainlycan. Therefore, a judgment of non pros will constitute a dismissal with prejudice where thestatute of limitations has run.244

Accordingly, in cases where the statute of limitations has not run, a plaintiff who hashad a judgment of non pros entered in his or her lawsuit may simply re-file the same lawsuit ata different docket number. By contrast, in cases where the statute of limitations has run, aplaintiff’s lawsuit may only be salvaged by attempting to establish that an equitable exceptionapplies by filing Petition to Strike/Open the Judgment.

Pennsylvania courts are clear that “[t]he 60-day deadline for filing a certificate of meritwill be strictly construed and not lightly excused.”245 In Womer v. Hilliker, the PennsylvaniaSupreme Court set forth the substantive law as it pertain to the ability of a court to excuse anuntimely certificate of merit.246



First, the court acknowledged that a court may overlook a technical error where a partyhas “substantially complied” with the Certificate of Merit Rules and where no prejudice exists.However, this exception is not available where there was no compliance with the Rules duringthe requisite timeframe. Therefore, in Womer, while the plaintiff furnished an expert report tothe defendant rather than a certificate of merit, the doctrine of “substantial compliance” didnot apply.

Second, the Womer court held that under Pa. R.C.P. 3051, a plaintiff may demonstratethat the failure to comply with the Certificate of Merit Rules should be excused. Under Rule3051, a judgment may be opened where: (1) a petition to open is timely filed; (2) there is areasonable explanation or legitimate excuse for the delay; and (3) there is a meritorious causeof action. However, the Womer court strictly construed what could be considered a“reasonable explanation or legitimate excuse,” holding that the plaintiff’s honest belief that anexpert report substantially complied with the Rule did not satisfy the standard.247 Moreover,neither the plaintiff’s pro se status nor lack of access to an expert provides an excuse for aplaintiff’s failure to comply with the Certificate of Merit Rules.248

As such, where the Certificate of Merit Rules now provide plaintiffs with notice from thedefendant, opportunities for extensions, motions to determinations of necessity of a certificateof merit, etc., a plaintiff will typically have an uphill battle to open a judgment of non proswhere no certificate of merit is filed within the timeframes set forth in the Certificate of MeritRules.

F. THE STATUTE OF LIMITATIONS IN LEGAL MALPRACTICE

1. Applicable Statutory Period

In Pennsylvania, professional liability actions against attorneys can arise under bothnegligence and breach of contract,249 each of which carry their own respective statutes oflimitations. A claim for negligence carries a statute of limitations of two years.250 A claim forbreach of contract carries a statute of limitations of four years.251

Prior to the Pennsylvania Supreme Court’s decision in Bailey v. Tucker,252 the law inPennsylvania made clear the distinction between claims of negligence and breach of contractand, consequently, which statute of limitations should apply. In Duke & Co. v. Anderson,253 theSuperior Court of Pennsylvania explained that litigants have a choice either to sue on a claim ofnegligence resting upon the attorney’s failure to exercise the standard of care or on a claim ofbreach of contract resting upon the attorney’s failure to follow a client’s specific instruction.This principle was affirmed and maintained in several subsequent decisions, requiring that allclaims for breach of contract be premised upon a specific instruction or contractual provisionthat the attorney failed to follow.254

In conjunction with this principle is the notion that a plaintiff is not permitted to side-step the application of the two-year statute of limitations applicable to claims based upon an



attorney’s negligence simply by recasting the claim as one for breach of contract, therebyaffording the client an additional two years to sue his or her former attorney.255

In Bailey v. Tucker, however, the Pennsylvania Supreme Court blurred the line betweennegligence and breach of contract claims, holding as follows:

[An assumpsit claim based on a breach of the attorney-clientagreement] is a contract claim and the attorney’s liability in thisregard will be based on terms of that contract. Thus, if anattorney agrees to provide his or her best efforts and fails to doso, an action will accrue. Of course, an attorney who agrees for afee to represent a client is by implication agreeing to provide thatclient with professional services consistent with those expected ofthe profession at large.256

Subsequent to Bailey, courts were somewhat inconsistent as to what allegations weresufficient to maintain a cause of action premised upon breach of contract, but most appearedto recognize some continued viability to the specific instruction requirement. For example, inCostello v. Primavera,257 the plaintiffs mirrored the language in Bailey and alleged that theattorney-defendants breached an implied contract “to provide legal services consistent withthose expected of the legal profession at large” and reiterated the allegations set forth in theclaim for negligence. The court held that the plaintiffs could not claim a four-year statute oflimitations for breach of contract because they failed to establish the requisite breach of aspecific contractual term or instruction. The court rejected the plaintiffs’ argument thatnegligent performance could in and of itself constitute a breach of contract and rather focusedupon the phrase “based on terms of that contract” as the first step in the Bailey analysis,thereby interpreting Bailey as consistent with prior case law.258

In Gorski v. Smith,259 however, the Superior Court of Pennsylvania changed thelandscape when it held that the requirement that a plaintiff must allege a “specific instruction”to state a claim for breach of contract “no longer has continuing vitality” in light of the languageset forth in Bailey. Thus, the court held that the attorney-defendants’ failure to explain to theplaintiffs the impact of an agreement they signed was in breach of the contractual obligation toprovide legal services in a manner consistent with the profession at large.

After Gorski, Pennsylvania state courts were hesitant to dismiss a breach of contractclaim for the failure to allege a breach of a specific provision or instruction.260 Nonetheless,Pennsylvania federal courts continued to uphold the distinction between negligence and breachof contract actions despite the language in Gorski, particularly where the statute of limitationswas an issue.

In Stacey v. City of Hermitage,261 the court provided an overview of Pennsylvania law inthis area, ultimately reaffirming that, while there is disagreement as to the specificity of thebreach required to be applied after Gorski and Bailey, a plaintiff may not nonetheless



“[r]epackage a negligence-based malpractice claim under an assumpsit theory to avoid thestatute of limitations.” The court noted:

Of course, virtually all legal representation occurs within thescope of a contract between lawyer and client. This does not,however, mean that contractual limitations period automaticallyapplies. Rather, the courts have looked to the terms of thecontract allegedly breached and to the nature of the injuryasserted. If the damages requested stem from negligence or othertortious misconduct, then the action sounds in tort and the two-year statute of limitations applies. If the damages arise from abreach of an explicit contractual term, and if the request is onlyfor compensatory damages appropriate in contract, then theaction sounds in contract.262

Significantly, The Honorable Thomas Saylor of the Supreme Court of Pennsylvaniaacknowledged the incongruity in Pennsylvania case law, and the “counter-position” that hasdeveloped in the federal courts, in his dissent in Steiner v. Markel.263 Justice Saylor noted thatthe Supreme Court of Pennsylvania “[h]as not detailed the elements of a contract-based causeof action for legal malpractice in a fashion which would meaningfully distinguish them fromthose necessary to support a tort-based cause.” Justice Saylor further recognized criticisms ofthe language in Bailey which leave “[a]ny distinction between contract and tortclaims…practically meaningless” and that plaintiffs may avail themselves of longer limitationsperiods through “skillful pleading.” Justice Saylor acknowledged the admonishment in Staceythat a plaintiff may not “repackage” a negligence claim as one for breach of contract to avoidthe statute of limitations. Thus, Justice Saylor implored the Pennsylvania Supreme Court toprovide some clarity to the issue:

In my view, the preferable approach to clarifying this disorderedarea of the law would be to delineate the elements of a contractcause of action for legal malpractice, compare them to thosepertaining to a tort cause, and isolate any distinguishing factors. Inthis effort, the federal courts’ approach should be considered.(Emphasis added).264

The majority, however, declined to undertake this task as it considered any attempt todo so to be an “improper advisory opinion” as the issue was not preserved.

Nonetheless, in New York Central Mutual Ins. Co. v. Margolis Edelstein,265 the UnitedStates Court of Appeals for the Third Circuit, in a non-precedential opinion, took hold of thisissue when it applied the gist of the action doctrine to preclude a legal malpractice plaintifffrom utilizing a four-year statute of limitations, despite labeling the claim as breach of contractin the complaint. The Third Circuit held the “gravamen” of the plaintiff’s allegations is that theattorney negligently performed his undertaking and thus failed to exercise the appropriate



standard of professional care. The Third Circuit, citing the Pennsylvania Supreme Court’s non-legal malpractice decision in Bruno v. Erie Insurance Co.,266 observed that:

The gist of the action doctrine determines whether a cause ofaction, although arising from a contractual relationship, sounds incontract or tort. …if the facts of a particular claim establish thatthe duty breached is one created by the parties by the terms ofthe contract—i.e., a specific promise to do something that a partywould not ordinarily have been obligated to do but for theexistence of the contract, then the claim should be treated as onefor breach of contract. If, however, the facts establish that theclaim involves the defendant’s violation of a broader social dutyowed to all individuals, which is imposed by the law of torts and,hence, exists regardless of the contract, then it must be regardedas a tort. In sum, a claim sounds in negligence unless it is allegedthat the party breached one of the specific executory promiseswhich comprise the contract.267

Thus, the Third Circuit rejected the line of cases which previously relied upon thelanguage in Bailey and Gorski to hold that an independent basis for a breach of contract actionexists when an attorney agrees, by implication, to provide that client with professional servicesconsistent with those expected of the profession at large and, thus, apply its accompanyingfour-year statute of limitation period.

In Seidner v. Finkelman,268 the court likewise applied the gist of the action doctrine andrejected the plaintiff’s attempt to take advantage of a four-year statute of limitations in a claimlabeled as one arising from breach of contract. The court held:

Implying a term in attorney-client contracts as held by Gorskiraises to major issues. First, it would mean a contract claim couldbe asserted where the attorney was negligent and that negligenceharmed his or her client. Second, such a hybrid contract-negligence claim would be most likely subject to a four-yearstatute of limitations, in contrast to a malpractice claim soundingsolely in tort which is subject to a two-year statute of limitations.This outcome clashes with the express will of the legislature thatcrafted two different statutes of limitations for two distinct causesof action. Such a result would permit plaintiffs to circumvent thestatute of limitations for legal malpractice in tort by usingcontracts as a foundation upon which to sue for negligence thatoccurred during the contractual relationship and may otherwisebe time-barred. If the legislature wished to carve out a specialexception for attorneys, they would have explicitly done so.269



The decisions in Margolis Edelstein and Seidner are indicative of a potential trend torevert to scrutinizing the complaint to determine whether the claim truly sounds in negligenceor breach of contract, at least where a determination of the applicable statute of limitations isrequired.

2. The Occurrence Rule, Discovery Rule and Fraudulent Concealment

Generally, the statute of limitations begins to run when the right to institute andmaintain suit arises.270 In Pennsylvania, claims premised upon the breach of a duty by anattorney, whether sounding in contract or tort, are governed by the “occurrence rule,” whereinthe statutory period commences upon the occurrence or the happening of the alleged breachof duty, not the realization of actual loss.271

In Wachovia Bank v. Feretti, the Superior Court of Pennsylvania reiterated thisfundamental rule, finding that the statute of limitations was not tolled during the period thatthe legal malpractice-plaintiff was litigating the underlying action. The court rejected theplaintiff’s argument that it had not suffered “actual loss” until judgment was entered against itand appeals had been exhausted, or that bringing a legal malpractice action prior to that timewould have been premature.272 According to the court, damages are only speculative “[i]f theuncertainty concerns the fact of the damages rather than the amount.”273 In that case, thestatute of limitations was triggered when the attorney breached a duty by failing to have ajudgment marked satisfied, and the plaintiff became aware of the breach when the holder ofthe judgment initiated a claim against the plaintiff. At that point, both the breach of duty andthe “fact” of damages were identifiable and known to the plaintiff, even though the plaintiffcontinued to litigate the action for years thereafter, even successfully for a period of time, untiljudgment was ultimately entered against it.274

Thus, claims premised upon a breach of a duty commence not when a potential plaintiffbecomes aware of the extent or amount of his or her damages but, rather, when the plaintiffbecomes aware of the breach of that duty. Pennsylvania law does, however, allow for thestatute to be tolled when the client, despite the exercise of due diligence, cannot discover theinjury or its cause. This principle is known in Pennsylvania as the “discovery rule.”275 As hasbeen explained by one court:

The discovery rule is a judicially created device that tolls therunning of the applicable statute of limitations until that pointwhen the plaintiff knows or reasonably should know: (1) that hehas been injured; and (2) that his injury has been caused byanother party’s conduct. …Pennsylvania’s formulation of thediscovery rule reflects a narrow approach to determining accrualfor limitations purposes and places a greater burden vis-à-vis thediscovery rule than most other jurisdictions. The commencementof the limitations period is grounded on inquiry notice that is tiedto actual or constructive knowledge of at least some form of



significant harm and of a factual cause linked to another’sconduct, without the necessity of notice of the full extent of theinjury, the fact of actual negligence, or precise cause.276

A plaintiff, therefore, has the duty to “[e]xercise all reasonable diligence to informhimself of the facts and to bring the suit within the prescribed period.”277 While the question ofwhether a plaintiff has exercised such diligence often involves a factual determinationappropriate for a jury, Pennsylvania courts do not hesitate to find that the discovery rule doesnot apply as a matter of law where reasonable minds could not differ as to whether a partyknew or should have known of his injury and its cause.278 Moreover, if a plaintiff seeks thebenefit of the discovery rule, it is the plaintiff who bears the burden of establishing that itapplies.279

Although less frequently encountered, the statute of limitations may also be tolled by adistinct doctrine known as equitable tolling or fraudulent concealment, i.e., that “[t]hroughfraud or concealment,” the defendant “[c]aused the plaintiff to relax his vigilance or deviatefrom his right of inquiry into the facts.”280 To apply, the defendant “[m]ust have committedsome affirmative independent act of concealment upon which the plaintiffs justifiably relied.”Mere silence in the absence of a duty to speak will not be sufficient to prove fraudulentconcealment.281 Moreover, this doctrine carries with it a heavier burden than the discoveryrule, requiring the plaintiff to establish “clear, precise and convincing” evidence of justifiablereliance.282

Therefore, in the majority of Pennsylvania legal malpractice cases, plaintiffs rely uponthe discovery rule, where courts will find that the statute of limitations has been triggered uponthe breach of the attorney’s duty, and where the plaintiff is able, through the exercise of duediligence, to discover his injury and its cause.

G. THIRD PARTY CLAIMS AGAINST ATTORNEYS AND THE LITIGATION PRIVILEGE

1. Privity Requirements for Negligence Claims

In Pennsylvania, to maintain a claim of legal malpractice based on negligence, a plaintiffmust show an attorney-client or analogous professional relationship with the defendant-attorney.283 Unlike other jurisdictions, Pennsylvania has declined to adopt the “California Rule,”which permits aggrieved third parties to pursue legal malpractice claims sounding in negligenceagainst attorneys whom they believe caused them harm.284 In Lucas, the California Supremeconcluded that the determination of whether in a specific case the defendant attorney will beheld liable to a third person not in privity involves the balancing of various factors, amongwhich are the extent to which the transaction was intended to affect the plaintiff, theforeseeability of harm to him, the degree of certainty that the plaintiff suffered injury, thecloseness of the connection between the defendant’s conduct and the injury, and the policy ofpreventing future harm.285 The Pennsylvania Supreme Court in Guy, however, rejected thereasoning in Lucas, holding that policy reasons underlying the retention of privity and the



dangers of adopting negligence concepts of duty analyzed in terms of scope of the risk orforeseeability remain cogent and are underscored by the unsatisfactory experiences inCalifornia after that state’s courts abolished the doctrine to allow such suits in negligence.286 Asfurther stated by our Superior Court in Smith:

These policy considerations are even stronger where the attorneyis representing a client who is involved in litigation. In suchcircumstances, the law is clear that the attorney owes no duty ofcare to the adverse party but only to his own client. To imposeupon an attorney a duty of care to the adverse party would placethe attorney in a position where his own interest would conflictwith the interests of his client and prevent him from exerting amaximum effort on behalf of the client. It would place an undueburden on the profession and would diminish the quality of thelegal services rendered to and received by the client. Where anattorney represents a client in litigation or during arms lengthnegotiations, the public interest demands that attorneys, in theproper exercise of their functions as such, not be liable to adverseparties for acts performed in good faith and for the honestpurpose of protecting the interests of their clients.287

2. The Doctrine of Judicial Privilege

Pursuant to the judicial privilege, a person is entitled to absolute immunity for“communications which are issued in the regular course of judicial proceedings and which arepertinent and material to the redress or relief sought.”288 This privilege is based on the “[p]ublicpolicy which permits all suiters, however bold and wicked, however virtuous and timid, tosecure access to the courts of justice to present whatever claims, true or false, real or fictitious,they seek to adjudicate.”289 “To assure that such claims are justly resolved, it is essential thatpertinent issues be aired in a manner that is unfettered by the threat of libel or slander suitsbeing filed.”290 Significantly, “[t]he absolute privilege accorded an attorney in representation ofa client in judicial proceedings is not limited to protection against defamation actions. Theimmunity bars actions for tortious behavior by an attorney other than defamation, so long as itwas a communication pertinent to any stage of a judicial proceeding.”291 The doctrine of judicialprivilege applies not merely to pleadings and sessions in open court, but also to less formalcircumstances, such as preliminary conferences, negotiations, and routine correspondenceexchanges between counsel in furtherance of their clients’ interests.292

If, however, an attorney’s communications are extraneous to the litigation, he can beheld liable.293 In Bochetto, an attorney, Gibson, commenced an action sounding in legalmalpractice and breach of fiduciary duty against Bochetto. After filing the malpracticecomplaint, the malpractice attorney faxed a copy of the complaint to a freelance reporter whoregularly wrote stories for a daily local legal publication. An article detailing the allegations in



the complaint was published. As a result, Bochetto filed a defamation action against Gibson.Gibson and his firm filed a motion for summary judgment asserting judicial privilege. The trialcourt erred in granting the motion for summary judgment. The Pennsylvania Supreme Courtultimately held that judicial privilege did not protect Gibson and his firm with regard to thecopy of the complaint that was faxed to the reporter. The act of sending the complaint to thereporter was an extrajudicial act that occurred outside the regular course of the judicialproceedings and was not relevant in any way to those proceedings.

3. Federal Statutory Claims Against Attorneys

In most instances, the doctrine of judicial privilege provides that pertinent and materialcommunications made in the context of judicial proceedings are absolutely privileged from civilliability.294 If, however, a plaintiff asserts federal statutory claims against an attorney, thedoctrine of judicial privilege does not apply unless the federal statute expressly affords thatdefense.295 Similarly, attorneys engaging in unfair debt collection activities during the course oflitigation are not permitted to invoke the doctrine of judicial immunity in defense of an actionbrought under the Fair Debt Collection Practices Act (FDCPA).296 (“The FDCPA does not containan exemption from liability for common law privileges. Thus, the application of thePennsylvania judicial privilege doctrine does not absolve defendants from liability under theFDCPA.). In Agresta v. Goode, 797 F. Supp. 399, 405 (E.D. Pa. 1992), the District Court rejectedthe application of the doctrine of judicial privilege in defense of Section 1983 civil rights claims,concluding that “[e]xtension of the judicial privilege to section 1983 actions would effect asubstantial enlargement of official immunity in the section 1983 context.”

4. Civil Conspiracy and Aiding and Abetting Claims Brought Against Attorneys

An attorney cannot be deemed to have conspired with his client unless he has acted forhis sole personal benefit.297 It is well settled that a plaintiff cannot establish the existence ofactionable joint or conspiratorial conduct through actions undertaken by counsel in anattorney-client relationship.298 Under the “intracorporate conspiracy doctrine,” an entitycannot conspire with one who acts as its agent.299 Liability may attach in such settings onlywhere the attorney acts solely in a personal capacity and not within the scope of the attorney-client agency.300

Similarly, liability for aiding and abetting a breach of fiduciary duty, with respect to alawyer, must be limited to those situations where the lawyer’s conduct fell outside the scope ofnormal provision of legal services.301 Such a rule is necessary because, in virtually every disputeamong corporate parties, partners, professionals and clients, or even family matters, there areoften fiduciary relationships. In every such dispute, a lawyer’s advice to, or representation ofhis client, in ascertaining and accomplishing his client’s goals, exposes the lawyer to a laterclaim from the opposing party, or in this case, a non-party, that he aided and abetted hisclient’s breach of fiduciary duty. Such exposure would preclude vigorous representation bylawyers and candid disclosure by clients.302



5. Wrongful Use of Civil Proceedings and Abuse of Process Claims

Non-clients may also assert civil actions against attorneys who previously representedtheir adversaries pursuant to Pennsylvania’s Wrongful Use of Civil Proceedings statute, 42 Pa.C.S. §8351, et seq. (also known as the “Dragonetti Act”) and for common law abuse of process.

In Pennsylvania, “[a] person who takes part in the procurement, initiation orcontinuation of civil proceedings against another is subject to liability to the other for wrongfuluse of civil proceedings if: (1) he acts in a grossly negligent manner or without probable causeand primarily for a purpose other than that of securing the proper discovery, joinder of partiesor adjudication of the claim in which the proceedings are based; and (2) the proceedings haveterminated in favor of the person against whom they are brought.”303 It is, however, difficult fora plaintiff to prevail, as an attorney is entitled to rely upon his client’s representations inprosecuting the underlying civil action that is alleged to give rise to a Dragonetti claim.304 InMeiksin, the Pennsylvania Superior Court stated:

An attorney who initiates a civil proceeding on behalf of his clientor one who takes any steps in the proceeding is not liable if he hasprobable cause for his action; and even if he has no probablecause and is convinced that his client’s claim is unfounded, he isstill not liable if he acts primarily for the purpose of aiding hisclient in obtaining a proper adjudication of his claim. An attorneyis not required or expected to prejudge his client’s claim, andalthough he is fully aware that its chances of success arecomparatively slight, it is his responsibility to present it to thecourt for adjudication if his client so insists after he has explainedto the client the nature of the chances.305

Moreover, in order to prevail on a wrongful use case, a plaintiff is required to prove that theattorney-defendant had a malicious ulterior motive.306 “To constitute a favorable termination,the reason for termination should connect to the alleged absence of probable cause. Simplybecause a party does not prevail on the evidence does not mean the suit was broughtimproperly.”307

If a plaintiff meets these burdens and prevail on a wrongful use claim, he can recover:(1) the harm normally resulting from any arrest or imprisonment, or any dispossession orinterference with the advantageous use of his land, chattels or other things, suffered by himduring the course of the proceedings; (2) the harm to his reputation by any defamatory matteralleged as the basis of the proceedings; (3) the expense, including any reasonable attorney fees,that he has reasonably incurred in defending himself against the proceedings; (4) any specificpecuniary loss that has resulted from the proceedings; (5) any emotional distress that is causedby the proceedings; [and,] (6) punitive damages according to law in appropriate cases.308



“Abuse of process is defined as the use of legal process against another primarily toaccomplish a purpose for which it is not designed.”309 “To establish a claim for abuse of process,it must be shown that the defendant: (1) used a legal process against the plaintiff; (2) primarilyto accomplish a purpose for which the process was not designed; and (3) harm has been causedto the plaintiff.”310 “In order to state a cause of action for abuse of process, it is not enough thatthe defendant had bad or malicious intentions or that the defendant acted from spite or withan ulterior motive.”311 “There must be an act or threat not authorized by the process, or theprocess must be used for an illegitimate aim such as extortion, blackmail, or to coerce orcompel the plaintiff to take some collateral action. There is no liability where the defendant hasdone nothing more than carry out the process to its authorized conclusion, even though withbad intentions.”312 “The significance of [the word ‘primarily’] is that there is no action for abuseof process when the process is used for the purpose for which it is intended, but there is anincidental motive of spite or ulterior purpose of benefit to the defendant.”313 “Filing acomplaint in the hopes that it will induce settlement negotiations does not constitute an abuseof process.”314

H. THE DOCTRINE OF JUDICIAL ESTOPPEL IN LEGAL MALPRACTICE ACTIONS

Judicial estoppel is an equitable doctrine created to protect the integrity of the court bypreventing litigants from “[p]laying fast and loose with the judicial system by adoptingwhatever position suits them at the moment.”315 The doctrine serves the integrity of thejudicial system by holding that “[a] plaintiff who has obtained relief from an adversary byasserting and offering proof to support one position may not be heard later… to contradicthimself in an effort to establish… a second claim inconsistent with his earlier contention.”316

The doctrine provides that “[w]hen a man alleges a fact in a court of justice, for his advantage,he shall not be allowed to contradict it afterwards.”317 “Absent a sufficient explanation, a partyshould be prohibited from gaining an advantage by litigating on one theory and thensubsequently seeking an additional advantage by pursuing an irreconcilably inconsistenttheory.”318

This doctrine can be applied in a legal malpractice action. For example, a court hadpreviously dismissed with prejudice a breach of fiduciary duty and breach of contract claimpursuant to a motion to dismiss. The plaintiff’s Amended Complaint contains the exact sameclaims. Given the dismissal was with prejudice, it is improper for the plaintiff to set forth thesame claim in their Amended Complaint. As such, the plaintiff is judicially estopped from raisingthe exact same claim in his/her Amended Complaint against the same defendants.



I. End Notes

1See Pa. R.P.C. “Scope” (2017).

2Pa. R.P.C. “Preamble” para. 1 (2017).

3Pa. R.P.C. “Scope” para. 1 (2017) (providing that “[v]iolation of a Rule should not give rise to a cause of action nor should it

create any presumption that a legal duty has been breached”; and that the Rules “are not designed to be a basis for civilliability.”).4

Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1284 (Pa. 1992) (holding that a lawyer’s conduct is not“actionable” simply because it “may violate the rules of ethics…”).5

42 Pa. C.S. § 5525 (2002).6

42 Pa. C.S. § 5524 (2004).7

Galullo v. Federal Express Corp., 937 F.Supp. 392, 395 (E.D. Pa. 1996) (citing Robertson v. Allied Signal, Inc., 914 F.2d 360, 366(3d Cir. 1990)).8

See Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182 (Pa. Super. Ct. 2000).9

Eckroth v. Pa. Elec., Inc., 12 A.3d 422, 428 (Pa. Super. Ct. 2010) (internal citations omitted).10

Harmelin v. Man Fin. Inc., 2007 U.S. Dist. Lexis 79865, *9-10 (E.D. Pa. 2007) (quoting Hamil v. Bashline, 392 A.2d 1280, 1285(Pa. 1978)).11

Enterline v. Miller, 27 Pa. Super. 463, 467 (1905).12

Former Pa. SSJI (Civ) 10.03 (Subcommittee Note) (citing Mazer v. Security Ins. Group, 368 F. Supp. 418, 422 (E.D. Pa. 1973)).13

Former Pa. SSJI (Civ) 10.03 (Subcommittee Note) (citing Smith v. Lewis, 530 P.2d 589 (Cal. 1975)).14

See Krauss v. Claar, 879 A.2d 302, 308 (Pa. Super. Ct. 2005).15

Kituskie v. Corbman, 714 A.2d 1027, 1029 (Pa. 1998).16

Cost v. Cost, 677 A.2d 1250, 1253 (Pa. Super. Ct. 1996); See also Sabella v. Estate of Milides, 992 A.2d 180, 187 (Pa. Super. Ct.2010) (Privity is “an element of proof necessary to maintain an action in negligence for professional malpractice.”).17

See Cost v. Cost, 677 A.2d 1250 (Pa. Super. Ct.1996).18

Id. at 1254.19

Id. See also Atkinson v. Haug, 622 A.2d 983, 987-988 (Pa. Super. 1993).20

Pa. R.P.C. 1.5(b) (2017).21

Pa. R.P.C. 1.5(c) (2017).22

Id.23

Angino & Rovner v. Jeffrey R. Lessin & Assocs., 131 A.3d 502, 509 (Pa. Super. Ct. 2016), appeal dismissed without opinion, 154A.3

rd317 (Pa. 2017).

24Pa. R.P.C. 1.5(c) (2017).

25Angino & Rovner v. Jeffrey R. Lessin & Assocs., 131 A.3d 502, 508 (Pa. Super. Ct. 2016), appeal dismissed without opinion, 154

A. 3d. 317 (Pa. 2017).26

Id.27

Id. (citing Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, PC, 95 A.3d 893, 896 (Pa.Super. 2014)).28

Angino , 131 A.3d at 511.29

Larocca Estate, 246 A.2d 337, 339 (Pa. 1968); see also Sutch v. Roxborough Mem. Hosp., 142 A.3d 38, 72 (Pa. Super. Ct. 2016).30

See Mosaica Acad. Charter Sch. v. Commonwealth, 813 A.2d 813, 822 (Pa. 2002); Merlino v. Delaware County, 728 A.2d 949,951 (Pa. 1999).31

See, e.g., Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1285 (Pa. 1992) (“Courts throughout the countryhave ordered disgorgement of fees paId. or the forfeiture of fees owed to attorneys who have breached their fiduciary duties totheir clients by engaging in impermissible conflicts of interest.”); Duffy v. Colonial Trust Co., 135 A. 204, 206 (Pa. 1926)(“[W]here an attorney is guilty of unprofessional conduct, he may, in addition to, or in place of, other and more severepenalties, be deprived of the right to recover fees for services connected with the case in which his misbehavior occurred[….]”).32

Ress v. Barent, 548 A.2d 1259, 1265 (Pa. Super. Ct. 1988).33

Pa. R.P.C. 1.2(c) (2017).34

Pa. R.P.C. 1.2, comment 6 (2017).35

Jones v. Bresset, 47 Pa. D. & C. 4th 60, 70 (Ct. Com. Pl. Lackawanna Cty. 2000) (citing Mallen, R.E., Smith, J.M., LegalMalpractice, § 8.2, p. 558 (4th ed. West Publishing 1996)).36

Pa. R.P.C. 1.1 (2017).37

Id.



38Id. at cmt. 5.

39Kirschner v. K&L Gates LLP, 46 A.3d 737, 757 (Pa. Super. Ct. 2012).

40Id.

41Estate of Agnew v. Ross, 152 A.3d 247, 259 (Pa. 2017).

42Gorski v. Smith, 812 A.2d 683, 711 (Pa. Super. Ct. 2002), (citing Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d

1277, 1287 (Pa. 1992)).43

See Maritrans, 602 A.2d at 1283.44

Capital Care Corp. v. Hunt, 847 A.2d 75, 84 (Pa. Super. Ct. 2004).45

Jones v. Bresset, 47 Pa. D. & C. 4th (Ct. Com. Pl. Lackawanna Cty. 2000) (citing Mallen, R.E., Smith, J.M., Legal Malpractice, §8.2, p. 558 (4th ed. West Publishing 1996)).46

Pa. R.P.C. 1.2(c).47

Jones , 47 Pa. D. & C. 4th at 70.48

Composition Roofers Local 30/30B v. Katz, 581 A.2d 607, 610, (Pa. Super. Ct. 1990).49

Id. at 609.50

McMahon v. Shea, 657 A.2d 938, 940 (Pa. Super. Ct. 1995).51

Collas v. Garnick, 624 A.2d 117, 120 (Pa. Super. Ct. 1993).52

See McMahon, 657 A.2d at 940.53

Rizzo v. Haines, 555 A.2d 58 (66).54

Pa. R.P.C. 1.4 cmt. 2 (2017)55

Id. at cmt.556

Id.57

Pa. R.P.C. 4.1 (2017).58

Pa. R.P.C. 3.3 (2017).59

Pa. R.P.C. 3.4 (2017).60

Pa. R.P.C. “Scope” Note (2017) (providing that “[v]iolation of a Rule should not give rise to a cause of action nor should itcreate any presumption that a legal duty has been breached”; and that the Rules “are not designed to be a basis for civilliability.”).61

Maritrans GP, Inc. v. Pepper Hamilton & Scheetz, 602 A.2d 1277, 1284 (Pa. 1992) (holding that a lawyer’s conduct is not“actionable” simply because it “may violate the rules of ethics…”).62

Pa. R.P.C. 5.1. (2017).63

Chotiner v. Phila. Hous. Auth., 2004 U.S. Dist. LEXIS 25436, *20 (E.D. Pa. Dec. 15, 2004).64

Id. at n.10.65

Pa. R.P.C. 5.3(a).66

Penda Corp. v. STK, L.L.C., 2004 U.S. Dist. LEXIS 13577, 16 (E.D. Pa. July 16, 2004) (citing to Pa. R.P.C 5.3(c)(1)-(2)).67

Manzitti v. Amsler, 550 A.2d. 537, 542-543 (Pa. Super. Ct. 1988).68

Rizzo v. Haines, 555 A.2d. 58 (Pa. 1989).69

McMahon v. Shea, 657 A.2d 938, 939 (Pa. Super. Ct. 1995).70

Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 587 A.2d 1346, 1348 (Pa. 1991).71

Pa. R.P.C. 1.13.72

Id.73

First Republic Bank v. Brand, 51 Pa. D. & C. 4th 167, 184-185 (Ct. Com. Pl. Phila. Cty. 2001).74

Del Borrello v. Del Borrell, 62 Pa. D. & C. 4th 417, 442 (Ct. Com. Pl. Phila. Cty. 2001).75

40 P.S. § 910-1(7) (1963).76

40 P.S. § 910-7 (1963).77

Id.78

Glover v. Udren Law Offices, P.C., 139 A.3d 195, 196 (Pa. 2016) (citing 41 P.S. § 406 (1974)).79

41 P.S. § 406 (1974).80

41 P.S. § 502 (1974).81

Glover v. Udren Law Offices, P.C., 139 A.3d 195, 200 (Pa. 2016).82

Id.83

Estate of Agnew v. Ross, 152 A.3d 247, 264 (Pa. 2017).84

20 Pa. C.S. § 2501 (1976).85

In re Estate of Ziel, 359 A.2d, 728, 731.86

In re Cohen Will, 284 A.2d 754, 756 (Pa. 1971).87

In re Estate of Ziel, 359 A.2d, 728, 731 (Pa. 1976).88

Frazier Estate, 75 Pa. D. & C. 577, 587 (Ct. Com. Pl. Phila. 1951).



89In re Estate of Sedmak, 357 A.2d 142, 145 (Pa. 1976).

90Guy v. Liederbach, 459 A.2d 744 (Pa. 1983).

91Guy v. Liederbach, 459 A.2d 744, 751 (Pa. 1983).

92Guy v. Liederbach, 459 A.2d 744, 747 (Pa. 1983); see also Kirschner v. K&L Gates LLP, 46 A.3d 737, 762 (Pa. Super. Ct. 2012)

(“[t]his narrow exception established a ‘restricted class of third party beneficiaries’“).93

Estate of Agnew v. Ross, 752 A.3d 247, 259 (Pa. 2017).94

Id. at 264.95

Grossman v. Barke, 868 A.2d 561, 566-67 (Pa. Super. Ct. 2005) (citing Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997)).96

Rohrer v. Pope, 918 A.2d 122, 128 (Pa. Super. Ct. 2007).97

Polett v. Public Communs., Inc., 126 A.3d 895, 931 n.25 (Pa. 2015).98

Grossman v. Barke, 868 A.2d 561, 572 (Pa. Super. Ct. 2005) (emphasis in original).99

Poole v. Worker’s Comp. Appeal Bd. (Warehouse Club, Inc.), 810 A.2d 1182 (Pa. 2002).100

Kennedy v. Workers’ Comp. Appeal Bd. Henry Modell & Co., 74 A.3d 343, 347 (Pa. Commw. Ct. 2013).101

Id. at 500, 810 A.2d at 1184; See also, Poole, 810 A.2d at 1184.102

Kennedy v. Workers’ Comp. Appeal Bd. Henry Modell & Co., 74 A.3d 343, 347 (Pa. Commw. Ct. 2013).103

Id. at 500, 810 A.2d at 1185 (emphasis added). See also Poole, 810 A.2d at 1185 (emphasis added).104

15 U.S.C. § 1692, et seq.105

Id. at § 1692a(6) (1997) (emphasis added).106

Id.107

Daniels v. Baritz, 2003 U. S. Dist. LEXIS 7707 at *11-12 (E.D. Pa. May 1, 2003) (emphasis supplied).108

Section 1692e(3).109

15 U.S.C. § 1692f(1) (1977).110

Reed v. Pinnacle Credit Servs., 2009 U.S. Dist. LEXIS 70566 at 11 (E.D. Pa. Aug. 11, 2009).111

Campuzano-Burgos v. Midland Credit Mgmt., 550 F.3d 294, 298 (3d Cir. 2008) (quoting Rosenau v. Unifund Corp., 539 F.3d218, 221 (3d Cir. 2008)).112

Campuzano-Burgos, 550 F.3d at 299 (emphasis added)(citing Federal Home Loan Mortgage Corporation v. Lamar, 503 F.3d504, 510 (6th Cir. 2007)).113

Beyers v. Richmond, 937 A.2d 1082 (2007).114

Other jurisdictions have held that a union attorney cannot be liable to union members for malpractice. See Carino v. Stefan,376 F.3d 156 (3d Cir. 2004) (applying New Jersey law) (attorneys employed by or hired by unions to perform services related toa collective bargaining agreement are immune from suit for malpractice); Waterman v. Transport Workers’ Union Local 100,176 F.3d 150, 150 (2d Cir. 1999) (“Under Atkinson, a union’s attorneys may not be sued by an individual member for actionstaken pursuant to a collective bargaining agreement.”); Arnold v. Air Midwest, 100 F.3d 857, 862 (10th Cir. 1996) (“[A]nattorney who performs services for and on behalf of a union may not be held liable in malpractice to individual grievants wherethe services performed constitute a part of the collective bargaining process.”).115

See Falsetti v. Local Union No. 2026, United Mine Workers of America, 161 A.2d 882 (Pa. 1960).116

Id. at 894.117

Martino v. Transport Workers’ Union of Philadelphia, Local 234, 480 A.2d 242 (Pa. 1984).118

Falsetti, at 161 A.2d 896.119

Id.120

Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993).121

Id. at n.12.122

See generally Id.123

Id. at 115.124

Reese v. Danforth, 406 A.2d 735, 739 (Pa. 1979).125

Id.126

Id. at 740.127

ASTech Int’l, LLC v. Husick, 676 F. Supp.2d 389 (E.D. Pa. 2009).128


Id. at 1030.130

Rizzo v. Haines, 555 A.2d 58 (Pa. 1989); Myers v. Robert Lewis Siegle, P.C., 751 A.2d 1182 (Pa. Super. Ct. 2000)(to proveactual injury, appellant must demonstrate that she would have prevailed in the underlying action in the absence of appellees’alleged negligence.).131

Duke & Co. v. Anderson, 418 A.2d 613 (Pa. Super. Ct. 1980); Rizzo v. Haines, 555 A.2d 58 (Pa. 1989).132

Kituskie, 714 A.2d at 1027.



133Corestates Bank, Nat’l Assn. v. Cutillo, 723 A.2d 1053, 1057 (Pa. Super. Ct. 1999); Williams v. Nationwide Mut. Ins. Co., 750

A.2d 881 (Pa. Super. 2000).134

Divenuta v. Bilcare, Inc., 2011 U.S. Dist. LEXIS 34279 at *25 (E.D. Pa. 2011) (quoting Carroll v. Phila. Hous. Authy., 650 A.2d1097, 1100 (Pa. Commw. Ct. 1994)).135

See Fiorentino v. Rapoport, 693 A.2d 208 (Pa. Super. Ct. 1997).136

Sherman Industries, Inc. v. Goldhammer, et. al., 683 F. Supp. 502, 506 (E.D. Pa. 1988).137

Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super. Ct. 2002) (citing Bailey v. Tucker, 621 A.2d 108 (Pa. 1993).138

Id.139

Ford v. Jeffries, 379 A.2d 111 (Pa. 1977); see also, Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636- 637 (Pa. Super.Ct. 1998).140

Trude v. Martin, 660 A.2d 626, 627, 628 (Pa. Super. 1995); see also, Mietelski v. Banks, 854 A.2d 579, 584 n.6 (Pa. Super. Ct.2004).141

Kituskie v. Corbman, 741 A.2d 1027, 1030 (Pa. 1998); Rizzo v. Haines, 555 A.2d 58 (Pa. 1989); Mariscotti v. Tinari, 485 A.2d56, 57-58 (Pa. Super. Ct. 1984); Pashak v. Barish, 450 A.2d 67, 69 (Pa. Super. Ct. 1982).142

Spillman v. Wallen, 1996 U.S. Dist. LEXIS 9284 (E.D. Pa. July 1, 1996).143

Hamil v. Bashline, 392 A.2d 1280, 1284, 1285 (Pa. 1978).144

Brown v. Philadelphia College of Osteopathic Med., 760 A.2d 863, 868 (Pa. Super. Ct. 2000).145

Fiorentino v. Rapoport, 693 A.2d 208, 217 (Pa. Super. Ct. 1997) (citation omitted).146

Brown, 760 A.2d at 869.147

ASHTech Int’l, LLC, 676 F. Supp. at 402.148

Id.149

Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182 (Pa. Super.Ct. 2000).150

Kituskie v. Corbman, 741 A.2d 1027 (Pa. 1998); Rizzo v. Haines, 555 A.2d 58 (Pa. 1989); Mariscotti v. Tinari, 335 Pa. Super.,485 A.2d 56 (Pa. Super. Ct. 1984); Pashak v. Barish, 450 A.2d 67 (Pa. Super. 1982).151

Spillman v. Wallen, 1996 U.S. Dist. LEXIS 9284 (E.D. Pa. July 1, 1996).152

Id. at 45.153

Pashak v. Barish, 450 A.2d 67 (Pa. Super. Ct. 1982).154

Id. at 68.155

Id.156

Id. at 69. (Emphasis in original. See also R. Mallen & V. Levitt, Legal Malpractice §302 (2d. ed. 1981); D. Meiselman, AttorneyMalpractice: Law and Procedure, §4:1 (1980).157

Id.158

Mariscotti v. Tinari, 485 A.2d 56, 57 (Pa. Super. Ct. 1984).159

Id. at 58.160

Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346, 1352 (Pa. 1991).161

Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346, 1352 N.13 (Pa. 1991).162

Id.163

ASTech Int’l, LLC v. Husick, 676 F. Supp. 2d 389, 400 (E.D. Pa. 2009)(citing Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa.1998)).164

Curran v. Stradley, Ronan, Stevens & Young, 521 A.2d 451 (Pa. Super. Ct. 1987).165

Divenuta v. Bilcare, Inc., 2011 U.S. Dist. LEXIS 34279 at *25 (E.D. Pa. 2011) (quoting Carroll v. Phila. Hous. Auth., 650 A.2d1097, 1100 (Pa. Commw. Ct. 1994)).166

In re: Estate of Pedrick, 482 A.2d 215, 217 (Pa. 1984).167

Pa.R.P.C. “Preamble” ¶19. (emphasis added).168

See In re: Estate of Wood, 818 A.2d 568, 573 (Pa. Super. Ct. 2003).169

See Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1284 (Pa. 1992).170

Pa.R. Evid. 403.171

Gorski v. Smith, 812 A.2d 683, 699 (Pa. Super. Ct. 2002)(emphasis added); See also, Hackers Inc. v. Palmer, 79 Pa. D. & C. 4thLEXIS 485 (Ct. Com. Pl. Lawrence Cty. 2006).172

Id. at 703.173

Id.174

Mazer v. Security Ins. Group, 368 F. Supp. 418 (E.D. Pa. 1973).175

Mazer v. Security Insurance Groups, 368 F. Supp. 418, 422 (E.D. Pa. 1973).176

Archbishop v. Karlak, 299 A.2d 294, 296 (Pa. 1973).



177Storm v. Golden, 538 A.2d 61 (Pa. Super. Ct. 1988) (citing Powell v. Risser, 99 A.2d 454, 456 (Pa. 1953)(Whether an attorney

failed to exercise a reasonable degree of care and skill related to common professional practice in handling a real estatetransaction is a question of fact outside the normal range of the ordinary experience of laypersons.)).178

Id. at 64.179

Id.180

Id. at 65.181

Id. at 64.182

See Rizzo v. Haines, 555 A.2d 58, 66 (Pa. 1989).183

See Corestates Bank, N.A., 723 A.2d 1053, 1057 (Pa. Super. Ct. 1999); Williams v. Nationwide Mut. Ins. Co., 750 A.2d 881 (Pa.Super. Ct. 2000).184

Woods v. Egler, 52 Pa. D. & C. 4th 505 (Ct. Com. Pl. Allegheny Cty.); Destefano & Associates, Inc. v. Cohen, 2002 Phila. Ct.Com. Pl. Lexis 54 (Ct. Com. Pl. Phila. Cty. May 23, 2002).185


Heldring v. Lundy, Beldecos & Milby, P.C., 151 A.3d 634, 642 (Pa. Super. Ct. 2016)(citing Poole v. W.C.A.B. (Warehouse Club,Inc.), 810 A.2d 1182, 1184 (Pa. 2002)).187

Divenuta v. Bilcare, Inc., 2011 U.S. Dist. LEXIS 34279 at *25 (E.D. Pa. March 31, 2011)(quoting Exton Drive-In, Inc. v. HomeIndem. Co., 261 A.2d 319, 324 (Pa. 1969)).188

Fiorentino v. Rapoport, 693 A.2d 208 (Pa. Super. Ct. 1997); Sherman Industries, 683 F. Supp. 502, 506 (E.D. Pa. 1988).189

Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super. Ct. 2002).190

Id. at 694 citing Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993).191

Carnegie Mellon Univ. v. Schwartz, 105 F.3d 863, 867 (3d Cir. 1997).192

Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000).193

Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010).194

Id.195

Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct.1997).196

Hoy, 691 A.2d at 482.197

Small v. Juniata College, 682 A.2d 350, 355 (Pa. Super. Ct. 1996) (emphasis added).198

Kazatsky, 527 A.2d at 995.199

Id.200

Id.201

Id.202

Gray v. Huntzinger, 147 A.3d 924, 927-928 (Pa. Super. Ct. 2016).203

Id.204

Browne v. Maxfield 663 F. Supp. 1193 (E.D. Pa. 1987); Cochetti v. Desmond, 572 F.2d 102 (3d. Cir. 1978); Dowhouer v.Judson, 45 D. & C. 4th 172, 176-177 (Ct. Com. Pl. Dauphin Cty. 2000); Phillips v. Cricket Lighters, 883 A.2d 439 (Pa. 2005).205

Judge Tech. Servs. Inc. v. Clancy, et al., 813 A.2d 879, 889 (Pa. Super. Ct. 2002).206

Restatement (Second) of Torts, §908, comment (b).207

Id.208

Id. at comment (a).209

Id. at comment (g).210

Moran v. G & W. H. Corson, Inc., 586 A.2d 416 (Pa. Super. Ct. 1991), appeal denied, 602 A.2d 860 (Pa. 1992).211

Browne v. Maxfield, 663 F.Supp. 1193 (E.D. Pa. 1987); Chambers v. Montgomery, 192 A.2d 355 (Pa. 1963).212

McDaniel v. Merck, Sharp, Dohme, 533 A.2d 436 (Pa. Super. Ct. 1987); See also, Restatement (Second) of Torts § 908,comment (b)(Pennsylvania law does not allows an award of punitive damages for mere inadvertence, mistake, error ofjudgment and the like, which constitutes ordinary negligence).213

Takes v. Metropolitan Edison Co., 695 A.2d 397, 399. n. 4 (Pa 1997); See also Williams v. Syed, 782 A.2d 1090, 1096 (Pa.Commw. Ct. 2001).214

Feld v. Merriam, 485 A.2d 742 (Pa. 1984).215

Polselli v. Nationwide Mutual Fire Insurance Co., 23 F.3d 747, 751 (3d. Cir. 1994).216

Rizzo v. Haines, 555 A.2d 58, 69 (Pa. 1989).217

Pittsburgh Outdoor Advertising Co. v. Virginia Manor Apartments, Inc., 260 A.2d 801, 803 (Pa. 1970).218

Field v. Philadelphia Elec. Co., 565 A.2d 1170, 1182 (Pa. Super. Ct. 1989) (citing Martin v. Johns-Manville Corp., 494 A.2d 1088(Pa. 1985), rev’d on other grounds, 528 A.2d 947 (Pa. 1987)).219

Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 587 A.2d 1346, 1348 (Pa. 1991)(we will not permit a suitto be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless thatPlaintiff can show he/she was fraudulently induced to settle the original action).



220Id. at 1349-1351.

221Id. at 1346.

222See Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998); See also Lavelle v. Koch, 617 A.2d 319, 323 (Pa. 1992) (a litigant cannot

recover counsel fees from an adverse party unless there is express statutory authorization, a clear agreement of the parties orsome other established exception – a/k/a “American Rule”); See also 42 Pa.C.S. § 1726(a)(1) (attorneys’ fees are not an item oftaxable costs except as permitted by 42 Pa. C.S. § 2503).223

Pa. R.C.P. 1042.1(a)-(c)(2), 1042.3(a).224

Sabella v. Estate of Gus Milides, 992 A.2d 180 (Pa. Super. Ct. 2010).225

Varner v. Classic Communities Corp., 890 A.2d 1068 (Pa. Super. Ct. 2006); Perez v. Griffin, 304 Fed. Appx. 72 (3d. Cir. 2008).226

Ditch v. Waynesboro Hosp., 917 A.2d 317, 320 (Pa. Super. Ct. 2007); Hoover v. Davila, 862 A.2d 591, 595 n.3 (Pa. Super. Ct.2004); Stroud v. Abington Memorial Hosp., 546 F. Supp. 2d 238, 249 (E.D. Pa. 2008); Rodriguez v. City of Phila., 2015 U.S. Dist.LEXIS 94465; 21 n.5 (E.D. Pa. 2015).227

Pa. R.C.P. 1042.3(d).228

Pa. R.C.P. 1042.3(a)(1)&(2).229

Pa. R.C.P. 1042.3(b)(1).230

Pa. R.C.P. 1042.4; 1042.5.231

Pa. R.C.P. 1042.9.232

Pa. R.C.P. 1042.3(e).233

Pa. R.C.P. 1042.3(a)(3). Note; see also, Burke v. Diamond Pharmacy Services, 2013 Pa. Super. Unpub. LEXIS 669 (Pa. Super. Ct.2013)(although the Note to Rule 1042.3 does not speak to certifications made by pro se plaintiffs, a pro se litigant is notabsolved from the certificate of merit requirements, and is therefore bound by his certification that expert testimony isunnecessary).234

Smith v. Golden, 538 A.2d 61, 64 (Pa. 1998).235

Pa. R.C.P. 1042.8.236

Pa. R.C.P. 1042.7(a)(4).237

Pa. R.C.P. 1042.6(a).238

Pa. R.C.P. 1042.3(d). Note.239

Pa. R.C.P. 1042.6(c).240

Pa. R.C.P. 1042.6(c). Note.241

Munsif v. Jefferson Hosp., 2016 U.S. Dist. LEXIS 140433 (E.D. Pa. Oct. 11, 2016).242

Schmigel v. Uchal, 800 F.3d 113, 122 (3d Cir. 2015); see also Fed. R. Civ. P. 56(b).243

Gutman v. Giordano, 557 A.2d 782 (Pa. Super. Ct. 1987); Haefner v. Sprague, 494 A.2d 1115 (Pa. Super. Ct. 1985); Hatchiganv. Koch, 553 A.2d 10108 (Pa. Super. Ct. 1989); Helfrick v. UMPC Shadyside Hosp., 65 Pa. D. & C. 4

th420 (Ct. Com. Pl. Allegheny

Cty. 2003); Keybank National Assoc. v. Reidbord, 2005 U.S. Dist. LEXIS 29936 (W.D. Pa. Nov. 29, 2005).244

Munsif, 2016 U.S. Dist. LEXIS at *4.245

Stroud v. Abington Memorial Hosp., 546 F. Supp. 2d, 238 (E.D. Pa. 2006).246

Womer v. Hilliker, 908 A.2d 269 (Pa. 2006).247

Id. at 272-274; see also, Bassill v. Brynn Mawr Rehabilitation Hosp., 2016 U.S. Dist. LEXIS 148101 (E.D. Pa. Oct. 26, 2016) (nolegitimate excuse where plaintiff put on notice of deficiency, failed to file motion for determination of necessity of filingcertificate of merit, and had considerable time to take action to cure).248

Muhammad v. United States of America, 2016 U.S. Dist. LEXIS 10244 (M.D. Pa. Jan. 27, 2016).249

Duke v. Anderson, 418 A.2d 613 (Pa. Super. Ct. 1980).250

42 Pa.C.S. § 5524(7) (2004); Robbins & Seventko Orthopedic Surgeons, Inc. v. Geisenberger, 674 A.2d 244 (Pa. Super. Ct.1996).251

42 Pa. C.S. § 5525 (2002).252

Bailey v. Tucker, 621 A.2d 108 (Pa. 1993).253

Duke & Co. v. Anderson, 418 A.2d 613 (Pa. Super. Ct. 1980).254

See Hoyer v. Frazee, 470 A.2d 990 (Pa. Super. Ct. 1984) (where no allegation that attorney breached a specific instruction,plaintiff’s breach of contract claim stated claim for negligence); Rogers v. Williams, 616 A.2d 1031 (Pa. Super. Ct. 1992) (“abreach of contract occurred when the attorney failed to follow a specific instruction”).255

Sherman Indus., Inc. v. Goldhammer, 683 F. Supp. 502 (E.D. Pa. 1988).256

Bailey, 621 A.2d at 115 (emphasis added).257

Costello v. Primavera, 39 Pa. D. & C. 4th 502 (Ct. Com. Pl. Phila. Cty. 1998).258

See also, F & G Associates v. Pomerantz, 47 Pa. D. & C. 4th 173 (Ct. Com. Pl. Phila. Cty. 2000) (holding it was impermissiblefor plaintiff to simply restate his tort claim as one for breach of contract in order to avoId. the two-year statute of limitations);



Saferstein v. Paul Mardinly Durhan James Flandreau & Rodger, P.C., 1997 U.S. Dist. LEXIS 2375 (E.D. Pa. 1997) (plaintiff may notsidestep the two-year statute of limitations by pleading tort claims as breaches of contract).259

Gorski v. Smith, 812 A.2d 683 (Pa. Super. Ct. 2002).260

Romy v. Burke, 2003 Phila. Ct. Com. Pl. LEXIS 67 (Ct. Com. Pl. Phila. Cty. May 2, 2003) (engaging in conflict of interest notconsistent with provision of services expected by profession at large and was sufficient to sustain breach of contract claim);Itskowitz v. White & Williams LLP, 2005 Phila. Ct. Pl. LEXIS 595 (Ct. Com. Pl. Phila. Cty. Nov. 10, 2005) (“plaintiff need not provethat defendants failed to follow a specific instruction in order to recover a breach of contract claim”).261

2008 U.S. Dist. LEXIS 29359 (W.D. Pa. April 7, 2008).262

Stacey v. City of Hermitage, 2008 U.S. Dist. LEXIS at *12; see also, McGee & Co. v. Richard I. Rubin & Co. Inc., 1995 U.S. Dist.LEXIS 8469 (E.D. Pa. June 20,1995) (where plaintiff’s action sounded in tort rather than breach of contract, plaintiff’s claimsbarred by two-year statute of limitations).263

Steiner v. Markel, 968 A.2d 1253 (Pa. 2009) (Saylor, J. dissenting).264

Id. at 1262.265

New York Central Mutual Ins. Co. v. Margolis Edelstein, 637 Fed. Appx. 70 (3d Cir. 2016).266

Bruno v. Erie Insurance Co., 106 A.3d 48 (Pa. 2014).267

New York Central Mutual Insurance Co., 637 Fed. Apps. 71-73.268

Seidner v. Finkelman, 2016 Phila. Ct. Com. Pl. LEXIS 378 (Ct. Com. Pl. Phila. Cty. Oct. 4, 2016).269

Id. at *35.270

Mahonski v. Engel, 145 A.3d 175 (Pa. Super. Ct. 2016).271

Wachovia Bank v. Feretti, 935 A.2d 565 (Pa. Super. Ct. 2007); Robbins & Seventko Orthopedic Surgeons, Inc. v. Geisenberger,674 A.2d 244 (Pa. Super. Ct. 1996).272

Wachovia Bank, 935 A.2d at 572.273

Id.274

Id. at 574.275

Id. citing Robbins & Seventko Orthophedic Surgeons, 674 A.2d at 246-247.276

Lorenzo v. Milner, 131 A.3d 105 (Pa. Super. Ct. 2015), citing K.A.R. v. T.G.L., 107 A.3d 770, 779-780 (Pa. Super. Ct. 2014)).277

Moore v. McComsey, 459 A.2d 841, 844 (Pa. Super. Ct. 1983).278

Fine v. Checcio, 870 A.2d 850 (Pa. 2005).279

Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa. 1995).280

Perelman v. Adams, 945 F. Supp. 2d 607, 615 (E.D. Pa. 2013).281

Namani v. Bezark, Lerner & Devirgilis, P.C., 2017 Pa. Super. Unpub. LEXIS 35 (Pa. Super. Ct. Jan. 5, 2017), citing Lange v. Burd,800 A.2d 336 (Pa. Super. Ct. 2002).282

Perelman v. Schnader Harrison Segal & Lewis, LLP, 2010 Phila. Ct. Com. Pl. LEXIS 360 (Ct. Com. Pl. Phila. Cty. Oct. 4, 2010).283

Guy v. Liederbach, 459 A.2d 744, 746, 750 (1983). See also Gregg v. Lindsay, 649 A.2d 935, 937 n.1 (Pa. Super. Ct. 1994)(holding that because the litigants did not not have an attorney-client relationship, the plaintiff could not recover for legalmalpractice based on negligence).284

Lucas v. Hamm, 364 P.2d 685, 687 (Cal. 1961).285

Id.286

Guy, 459 A.2d 746-747; see also, Smith v. Griffiths, 476 A.2d 22, 26 (Pa. Super. Ct. 1984).287

Smith, 476 A. 2d at 26.288

Post v. Mendel, 507 A.2d 351, 355 (Pa. 1986).289

Id.290

Id.291

Brown v. Delaware Valley Transplant Program, 539 A.2d 1372, 1374 (Pa. Super. Ct. 1988).292

Pelagatti v. Cohen, 3536 A.2d 1337, 1344 (Pa. Super. Ct. 1987).293

See Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004).294

Post v. Mendel, 507 A.2d 351, 355 (Pa. 1986).295

Lin v. Rohm & Hass Co., 2014 U.S. Dist. LEXIS 51052, 33-34 (E.D. Pa. Apr. 14, 2014) (holding that the Supremacy Clause bars adefense to claims brought under Title VII under the Civil Rights Act.).296

Nobile v. U.S. Bank N.A., 2016 U.S. Dist. LEXIS 1110 (M.D. Pa. Jan. 5, 2016).297

See Heffernan v. Hunter, 189 F.3d 405, 411-413 (3d Cir. 1999).298

Andrekovich v. PennPrime Liab. Trust, 2013 U.S. Dist. LEXIS 29781, 23 (W.D. Pa. Mar. 5, 2013).299

Heffernan, 189 F.3d at 412-413.300

Id. at 412.301

Reis v. Barley, Snyder, Senft & Cohen, LLC, 2009 U.S. Dist. LEXIS 91579, 52- 53 (E.D. Pa. Sept. 30, 2009).



302See Restatement 3d. Law Governing Lawyers, § 51(4) and comment h (lawyer has no duty to beneficiary where the client is

corporate officer, director or controlling shareholder, nor where non-client is reasonably able to protect own rights, nor wheresuch a duty would significantly impair the performance of the lawyer’s objectives to the client.).303

42 Pa. C.S. § 8351.304

Meiksin v. Howard Hanna Co., 590 A.2d 1303, 1304-1306 (Pa. Super. Ct. 1991).305

Id.306

Mi-Lor, Inc. v. DiPentino, 654 A.2d 1156 (Pa. Super. Ct. 1995).307

Keystone Freight Corp. v. Stricker, 15 Pa. D. & C. 5th 406, 412 (Ct. Com. Pl. Phila. Cty. 2010).308

42 Pa. C.S. § 8353.309

Cruz v. Princeton Ins. Co., 925 A.2d 853, 856 (Pa. Super. Ct. 2007).310

Id.311

Cruz v. Princeton Ins. Co., 2005 Phila. Ct. Com. Pl. LEXIS 87, 6-7 (Phila. Com. P. LEXIS 2005), citing Rosen v. Tesoro PetroleumCorp., 399 Pa.Super. 226, 582 A.2d 27 (1990), allocatur denied, 527 Pa. 636, 592 A.2d 1303 (1991).312

Cruz, 2005 Phila. Ct. Com. Pl. LEXIS 87, at 7.313

Rosen v. Tabby, 1997 U.S. Dist. LEXIS 16115, 25 (E.D. Pa. Oct. 10 1997), citing Rosen v. American Bank of Rolla, 627 A.2d 190,192 (Pa. Super. Ct.1993).314

Holst v. Oxman, 2006 U.S. Dist. LEXIS 11384, 20 (E.D. Pa. Mar. 17, 2006).315

Sunbeam Corp. v. Liberty Mutual Ins. Co., 781 A.2d 1192, 1192 (Pa. 2001).316

Scarano v. Cent. R. Co. of New Jersey, 203 F.2d 510, 513 (3d. Cir. 1953).317

In re: Adoption of S.A.J., 838 A.2d 616, 621 (Pa. 2003) (citing Topps Apparel Mfg. Co. v. Rothman, 244 A.2d 436, 438 n.8 (Pa.1968)).318

Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d. Cir. 1996).

Documents

Pennsylvania Legal Malpractice Handbook