Abeln, P. v. Eidelman, M.

J. A20010/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

PAUL J. ABELN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MARY J.B. EIDELMAN, ESQUIRE AND : No. 1978 EDA 2013
RICHARD HUNTINGTON PEPPER, :
ESQUIRE :

Appeal from the Order, June 26, 2013,
in the Court of Common Pleas of Lehigh County
Civil Division at No. 2009-C-6037

PAUL J. ABELN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MARY J.B. EIDELMAN, ESQUIRE AND : No. 2573 EDA 2013
RICHARD HUNTINGTON PEPPER, :
ESQUIRE :

Appeal from the Judgment Entered September 6, 2013,
in the Court of Common Pleas of Lehigh County
Civil Division at No. 2009-C-6037

BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 23, 2015

In these consolidated appeals, appellant challenges the June 26, 2013

order which entered summary judgment against him in his legal malpractice
J. A20010/14

actions against two lawyers who represented him in his divorce and child

custody proceedings.1 According to appellant, the negligent representation

of these two attorneys resulted in diminished custody of his child. We

affirm.

Appellant raises the following issues on appeal:

A. Controlling precedents of both this Court and
the Pennsylvania Supreme Court leave no
doubt that the Trial Court erred in granting
summary judgment to Eidelman on grounds
that Abeln’s malpractice claims were legally
barred by his acceptance of a brokered child
custody settlement.

B. Whether, at the time that Abeln agreed to the
November 2007 custody settlement, Eidelman
was still his attorney is of absolutely no
consequence to the viability of his legal
malpractice claims against her.

C. The Trial Court erred in concluding that “there
was no evidence [in the record] * * * of
pressure or of anything improper by Appellee
Eidelman to show that [Abeln] was forced or
tricked into accepting the custody arrangement
in the November 19 [2007] agreed [custody]
order.”

D. The Trial Court erred in concluding, in reliance
upon a nonprecedential Supreme Court
decision and dictum in a case of this Court,
that, because Abeln followed Pepper’s advice,

1
The other order under appeal is a September 6, 2013 order granting
Attorney Pepper’s counterclaim for counsel fees. A prior appeal of the
summary judgment in favor of Attorney Eidelman was quashed by this court
on April 10, 2013, as interlocutory, apparently because this counterclaim
was still pending. The September 6, 2013 order concluded all actions
against all parties and has rendered the prior June 26, 2013 order final and
now appealable.

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J. A20010/14

to submit to a negotiated rather than
adjudicated determination of his child custody
rights as part of a broader litigation strategy,
Pepper’s exercise of professional judgment
legally precludes Abeln’s legal malpractice
claims against him.

E. Abeln’s statements to the Trial Court, to
Pepper, or for discussion with his treating
psychologist, as to the reasons for his
acceptance of the adverse, January 22, 2008
custody stipulation, cannot be deemed binding
judicial admissions that permit the Trial Court
to conclude, as it did, that Abeln’s actions had
been voluntary rather than a product of
Pepper’s negligence, because Abeln’s
mitigating explanations for these statements,
in his deposition testimony, create an issue of
fact that only a jury can properly decide.

Appellant’s brief at i.2

We find no error with the trial court’s holding. After a thorough review

of the record, the briefs of the parties, the applicable law, and the

well-reasoned opinions of the trial court, it is our determination that there is

no merit to the questions raised on appeal. The trial court’s thorough,

18-page opinion, filed on January 25, 2012, as well as the two separate

Rule 1925 opinions filed September 19, 2013, and November 8, 2013,

respectively, comprehensively discuss and properly dispose of the questions

2
These issues are taken from the table of contents of appellant’s brief. The
brief contains a separate page listing the questions presented, but the
argument section of the brief follows the issues presented in the table of
contents. Consequently, we will regard the table of contents as the
statement of issues.

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J. A20010/14

presented.3 We will adopt those opinions as our own and affirm on that

basis with the following additional analysis.

In Issues A and D, appellant questions the continuing viability of our

supreme court’s decision in Muhammad v. Strassburger, McKenna,

Messer, Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991), cert. denied,

502 U.S. 867 (1991), which holds that a client cannot maintain a legal

malpractice action against an attorney where the client agreed to the

settlement of his or her claim unless the settlement agreement was

fraudulently induced.4 Appellant argues that Muhammad “has virtually no

remaining precedential value,”5 because the supreme court subsequently

restricted the holding in that case to its unique facts, citing McMahon v.

Shea, 688 A.2d 1179 (Pa. 1997).

Appellant has greatly exaggerated the effect of the McMahon

decision. While the McMahon majority purported to restrict Muhammad to

its facts, we note that the McMahon “majority” was not even a plurality

decision. Rather, McMahon was the product of an equally divided,

six-member supreme court. In point of fact, the three-member “minority”

3
Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A.
4
Issue A raises this claim as to Attorney Eidelman while Issue D raises it as
to Attorney Pepper. We note that Issue A is waived as this matter was not
directly raised or fairly suggested in appellant’s statement of matters
complained of on appeal pertaining to Attorney Eidelman. See Pa.R.A.P.,
Rule 1925(b)(4)(vii).
5
Appellant’s brief at 27.

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J. A20010/14

concurred in the result, but specifically objected to limiting Muhammad to

its facts. McMahon, 688 A.2d at 1182-1183. Consequently, McMahon did

not serve to limit Muhammad to its facts, and Muhammad remains as

controlling precedent until a true majority of the supreme court rules

otherwise. The trial court correctly found that appellant’s malpractice action

against Attorney Pepper was barred by Muhammad because the Complaint

failed to allege fraud in the inducement of the settlement agreement to

which appellant consented.

In Issue B, appellant argues that it is of no consequence whether

Attorney Eidelman was still representing him at the time of the

November 19, 2007 custody hearing. We agree with the trial court that

appellant’s abrupt firing of Attorney Eidelman on November 16, 2007,

insulates her from a claim of legal malpractice predicated upon the consent

agreement that issued from the November 19, 2007 hearing.

Much of appellant’s complaint against Attorney Eidelman for

malpractice stems from a negative psychological evaluation of appellant

prepared by Dr. Phillip Nastasee. Appellant argues that Attorney Eidelman

was negligent in failing to meet with him and prepare him for Dr. Nastasee’s

examination, in failing to seek to obtain Dr. Nastasee’s work papers, and in

failing to obtain an independent psychology expert to counter Dr. Nastasee’s

report. (Appellant’s brief at 32.) First, Attorney Eidelman cannot be

deemed negligent for failing to help appellant prepare for a psychological

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J. A20010/14

examination. While Attorney Eidelman may be considered a legal expert,

she has no training in psychology and had no expertise to impart to

appellant for a psychological examination. Second, as to the other alleged

failings as to the Nastasee report, we remind appellant that he and

Attorney Eidelman did not receive the Nastasee report until November 14,

2007. When appellant fired Attorney Eidelman only two days later, he

rendered it impossible for Attorney Eidelman to take any further remedial

actions.

Appellant also asserts that Attorney Eidelman was negligent in

preparing, but not filing proposed findings of fact and conclusions of law and

in failing to request a continuance of the November 19, 2007 custody

hearing. Again, appellant fired Attorney Eidelman three days before the

custody hearing, thereby preventing her from taking the aforementioned

actions. Moreover, the trial court states in its opinion that

Attorney Eidelman was excused from further representation shortly after the

November 19, 2007 hearing commenced. (Trial court opinion, 1/25/12 at

4.) The court also indicates that both the court and appellant’s wife were

willing to continue the hearing until January 22, 2008, so that appellant

could secure the services of a new lawyer. (Id.) Nevertheless, acting

pro se, appellant suggested the new custody arrangement of which he now

complains. (Id.) This is simply not Attorney Eidelman’s fault.

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J. A20010/14

Appellant also cites other examples of Attorney Eidelman’s negligence

such as failing to prepare witnesses he had provided her, and taking a family

vacation shortly before the custody hearing. Again, appellant’s firing of

Attorney Eidelman prevented her from preparing any witnesses. As the trial

court indicates in its opinion, the eleventh hour release of the Nastasee

report essentially mandated a continuance of the November 19, 2007

custody hearing. (Trial court opinion, 1/25/12 at 9.) Had appellant not fired

Attorney Eidelman, presumably the case would have been continued and she

could have prepared witnesses for trial. This would also have dissipated any

failure to prepare attributable to taking a family vacation.

Finally, we distinguish one of the cases appellant cites in support,

White v. Kreithen, 644 A.2d 1262 (Pa.Super. 1994), appeal denied, 652

A.2d 1324 (Pa. 1994). In White, the appellant fired his lawyers in a

medical malpractice action because he felt they were not adequately

preparing for trial. Appellant alleged in his ensuing legal malpractice

complaint that the attorneys subsequently interfered with appellant’s ability

to secure new counsel by refusing to transfer appellant’s file and by

demanding unreasonable referral fees. Consequently, appellant had no

counsel prior to trial. At a conference before the Calendar Judge, appellant

was forced to accept an unfavorable settlement rather than immediately

proceeding to trial without counsel.

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J. A20010/14

The focus of the White decision was actually its finding that

Muhammad did not apply to bar appellant’s malpractice action because the

settlement agreement was not negotiated by appellant’s attorneys. We are

not finding that Muhammad applies to bar the malpractice action against

Attorney Eidelman.6 However, to the extent that White suggests that a

legal malpractice action may be maintained even where the attorney has

been fired and the client subsequently accepts an unfavorable settlement,

we note a critical difference with the instant situation. There is no allegation

or indication that Attorney Eidelman interfered in any way with appellant’s

ability to secure new counsel. Moreover, as noted, the trial court stated in

its opinion that it was aware that appellant was in the process of obtaining

the services of Attorney Pepper and was willing to continue the hearing to

afford him the ability to retain Attorney Pepper. Appellant’s decision to enter

the new custody settlement at that time without counsel was purely of his

own volition and cannot be attributed to any negligence or intentional

interference by Attorney Eidelman.

Accordingly, we will affirm the orders entering summary judgment

against appellant and entering judgment against appellant as to

Attorney Pepper’s counterclaim.

Order of June 26, 2013 affirmed.

Judgment of September 6, 2013 affirmed.

6
As noted earlier, that issue was waived.

-8-
J. A20010/14

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2015

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ADD28

IN THE COURT Oli COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

CIVIL DIVlSIO~

PAUL J. ABELN.

Plamtiff No. 2009-C.6037

v. (Superior COlm No. 19711 EOA 2013)

MARY J. B. ElDELMAN, ESQUIRE,and
RICHARD I-fUl.:TINGTON PEPPER,
ESQUIRE ,

Defendants

Appearances:
... ... . .. . .
... ...

Richl.lrd L. Caplan, Esquire.
on behalf o f Pl ainli rr/Appellanl, Paul J . Abeln

Pau l C. Troy. Esquire,
on behalfof DefendantlAppcllee, Mary J, B. Eidelman, Esquire

..............
WILLI AM E. FORD, JUDGE

Pa .R.A.P. J925(a} 0 P I N' JO N

This is a Jcgul mulpracticecase in which Plaintiff/Appellant, Paul J. Abeln, brought

suit against Defendant/Appellee, Auomey Mary J. 8. Eidehnan, and Attorney Richard

Huntington Pepper who is not a party 10 this Ilppes!. I granted de fense motio ns for

summary j udgment d ismi ssing the claims against bOlh attorney defendants AppcJlant

Abeln flied the present appeal fro m my granting 1he motion for summary Judgment in

favor of Appell ee Eidelman.
 Circulated 12/30/2014 11:51 AM

ADD29

The basis fOT this legal malpractice action is cll<;(ody case, Paul J. Abeln v, lIeidl C.

Noll, Lehigh County number 2007-FC·0427 ("the custody case"). In Ihis malpractice suit,

Appellant claims that each of the attorney defendants by their consecutive- representation in

the custody case was responsible for climinishing through court orders his custody rights 10

Paul Christopher Abeln, the child lhat he has with lleidi C. Noll ("Mother").

Appellant Abeln presents several Iu-gllments in this appeal in support of his position

that I mistakenly enlered summary judgJTlent against him in favor of /\ppellee Eidehnan.

Each of his contentions lacks merit.

Pertinent Procedural History

This malpractice suit was brought on November 13, 2009. After discovery, each

attorney defendant tiled a motion for swnntary judgment on September 1,2011. I granted

the Illotions for summary judgment in favor of the attorney dcfimdants and against

Appellant on January 25, 2012. The judgments were not appealable because Attorney

Pepper, who is not involved in this appeal! had an wlresolved counterclaim for counsel

fees filed unde.r this same case number. (On September 6, 2013. judgment was entered in

favor or Attorney Pepper and against Appellant on the counterclaim. Appellant appealed

that j udgment on the coumerclaim and the summary judgment in favor of Attorney Pt':pper

on September 10,2013, which appeal has not yet been assigned a Superior Court docket

number.)

On November 6, 20 12, I entered an order granti.ng Appellee Eidelman's

uncontested motion to sever the claim brought against her irom the claim brought against

Anomey Pepper.

2
 Circulated 12/30/2014 11:51 AM

ADD30

On December 5, 2012. Appellallt Abeln med a notice of appeal to the Superior

Court ofPenl1sylvania " from the Order entered in this matter on the 25 th day of January,

2012, granting summury Judgment in [livor orlhe defendant, Mary 1. B. Eidehnan." This

appeal received the Superior Coun docket number 3368 EOA 201 2.

Because oftbe November 6, 20 12. se.vering of the claims brought against Appellee

Eidelman from the claims brought 3.gainst ALtomey Pepper, it appears thaI the appeal

docketed at 3368 EDA 20 12 \vas a timely chal1enge to the summary judgment granted in

favor of Appellee Eidclnum on January 25, 2012. Any appeal nfthe summary judgment

before tbe severance order would have been interlocutory

Unfortunately, in my Memorandum to thc $ upcrior Co urt riled on January

22,2013. ( gave the S uperitlr Court incomplete information nbout the record in the

lower court to that point. I f"iled til mention and then address the significance of the

severUDce order of November 6, 2012, Perhaps guided by my Memorandum, the

Superior Court quashed this appeal "sua t.poil/t? HS interlocutory" by order da tcd

April 10, 20J3. I now believe t1ll1t Appellant was entitled to a suhstantive review by

the Superior Co urt of the ~ umm ary judgment order in his c;lrlicl' appeal. To correct

this error, which Jpl'obnbly am n:sponsible!ol' creating, I respectfully suggest tlllIt

tliere should be.a subs lanllve review by tbe Superior C(l UI·t in tbe present

proceedings.

Unnecessary evcnts in the {rial court followed the dismissal as mterlocutory of

Appellant's earl ier appeal . A redundant judgment was taken by Appellee Eidelnmn on

June 7, 2013 . It was redundant because lhc summary judgment entered on January 25,

2012. was a fi nal o rder as to Appellee Eidelman after entry of the November 6, 2012,

3
 Circulated 12/30/2014 11:51 AM

ADD31

severance order. See .f'cidJer v. Morris COl/pli/lg Co., 784 A.2d 8 12 ( Pa.Super. 2001).

'nlcre was au Wlsuccessful effort to sci aside the redundant judgment which ended with an

order on June 28. 2013. Appellant then filed the current notice ofappcaJ o n July 5, 201 3,

from the order grn.llling summary judgment for Appellee Eidt!lman . This Cllrrent appeal

received the present Superior Coun docket number 1978 EDA 201 3.

O n July 24, 20 13, in response to an earlier order, Appellant filed a statement under

Pa.R.A.P . 1925(b) ("Concise Statement"). In his Concise Statement, AppelJant alleges

five errors. They cover the same subjeclS that were raised in the December 5, 2012, notice

of appeal. [now address each alll!galioll in tbe Concise Statement.

The Granting of Summary Judgment

The first claim of error is the esscnct: of this appeal. It reads:

Did the trial court err in granting summary
judgmcllt to Eidclman (Appellee) upon Abeln 's (Appe llant)
legnl malpractice and breach of contract claims, on grounds
that (i) Eidelman no longer represented Abe ln, when Abeln
nccepted !l reduced share of physical custody of his o nly
son, and (ii) Abeln, as a pro se litigant, approved an
unfavorable, negoliated child custody agreement, when
th~rc is ample evidencc in the record that this interim
settlement agreement was forced upon Abeln by
Eidelman's professional negligence, while still his
attomey?

According to Appeltanl, it was improper for the court to grant SUmmary judgment

for Appellee Ei delman on the legal malpractice claim against her because she was

responsible for dim.irushing Appellant's custody time with rus child througb the agreed

order of November 19,2007 . Summary judgment was properly granted in favor of

Appellee Eidelman for two reasons. rirsl, as the rec.ord establishes, Appellee Eidelman

4
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ADD32

had been dismissed as Appellant's counsel before the AppcUam. acting pro se. reached the

November 19, 2007, agreement with Mother. Second, the record established that the

November 19, 2007, agreed order was entered knowingly and voluntarily by Appellant.

There was nothing in the record 10 establish that "this interim settlement agreement was

forced upon (Appellant) Abeln by (Appellee) Eidelman's profess ional negligence, while

she was still Ius attorney" despite Appellant'S contention thai il was forced on him .

Appellant hired Appellee Eidelman as his attorney on Murch 29, 2007, to pursue a

diVorce from Mother and to obtain physical and legal custody of the child, Paul

Christopher. Appellee Eidelmun filed the custody case on March 30, 2007.

On March 24, 2007, Mother secured nn order from a magisterial district judge

against Appellant under Pennsy lvania's Protection from Abuse Act (PfA) at an ex parfe

he3ring. Under the terms oflhat order, Appellant was evicted rrom the manlru residence in

Lehigh County. -nlC order provided that it would expire at the end of the next business day

unless further action was taken by Mother. Mother pennitted the ex parte order to expire.

However, after Mother secured the ex parle order. without notice to Appel/ant, she took

the child. Paul Christopher, \l.-1lh her to Arizona where she had lived before Ihe marriage.

On April 5,2007, Appellee Eidelman filed a petition for emergency relief under the

custody case number on behalf of Appellant 1n the petition, Appellant sought the

immediate return of Paul Christopher to I'ellnsyivania. Appellant also sought "temporary

pdmary physic~1 custody" or Paul Christopher.

On the same date. April 5. 2007, ata hearing in Lehigh County Court with

Appellee Eidelman and both parents present. the petition for emergency relier was resolved

by agreement. Under the agreement, Appellant was made the primary physical custodian

5
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ADD33

of Paul Christopber. Mother was given visitation with the cbild for a minimum of three

hours pcr day. The panies agreed that these proviSions would be temporary. Additionally,

Mother indicated she would withdraw a protection from abuse case she had filed in

Arizona.

On ApdJ 24, 2007, Mother filed a petition in the custody C3se for shared legal and

physical custody of Paul Christopher. A hearing was held on May 2, 2007. Appellee

Eidelman represented Appellant at the May 2 hearing. Under the agreed order entered that

day, the parents would share lega l custody of Paul Christopher. Appellant relllllined the

primary physical custod ian of the child and Mother received increased partial physical

custody rights. The parties agreed that a psychologist would do an evaluation of the

panies. A custody trial was scheduled for November 19,2007.

Accordi ng to the complaint in Ule presenllegal malpractice complaint, Appellant

and Appellee Eidelman did not receive a copy of the psychological evaluat.ion until

November 14. 2007 . On "November 16, 2007. Abeln (Appellant) fired Eidelman

(Appellee) as his attorney for incompe1ence, via e-mail, and asked her to request a

continuance of the trial and to contact his new attorney, Pepper, prior to November 19."

(paragraph 24 , Complaint.)

TIle Honorablt: Maria L. Dantas convened court in the custody ca.se on November

19, 2007. Appellee Eidel man presented a petition to withdraw as counsel for Appellant

based on the November 16 e-mail Appellant sent her. Judge Dantos granted that petition.

Then, by agreement, the trial was continued to January 22. 2008, so Appellant could have

the opportunity to secure the services of Pepper. Also on November 19, 2007, after

Appellee Eidelman was excused from further representation, Appellant, acting pro se,

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ADD34

agreed in a fuIJ record colloquy with Judge Dantos to another interim custody arrangemenl

wht:reby he and Mother would share legal and physical custody of Paul Chnstopher.

II would have been improper for Appellee to give her input about the wisdom of the

Novembtr 19 agreed order or to provide advice for Appellant as the agreement was being

stated. Appellnnt had not yet secured the services of hi s next attorney so he was on his

0\\011- by his choice - when the agreement was reached. The record of that hearing

demonstrotes a complete setting forth of the agreement and Appellant's acceptance of it

As a general rule, a litigant is nOI permitted to agree to a settlemem and

s ubsequently bring- a malpractice su it against his attorney based on the terms of the

settlement. Muh(llllmad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346, 1348 (1991).

The Superior Court bas held that MuJwmmadprecJucJes a malpractice action where (I

settling client merely alleges that settlement resulted from "a deficiency In the lawyer's

exercise of his or her professional judgment." McMahon v. Shea, 441 Pa.Super. 304, 313,

657 A.2d 938,942 (19')5). Conversel)', a malpractice suit stemming from a seUlement

m~y proceed where a litigant shows thai the settlement resulted from fraud or from the

attorney's failwe to correclly explain legal principles or the consequences of the settlement

to the litigant. Jd

From the record developed through discovery, there was no evidence of fraud or of

pressure or of anything improper by Appellee Eidelman to show that Appellant wus forced

Or tricked into liccepting lhe custody arrangement in the November 19 agreed order or the

two earlier agreed orders. Further, there was no evidence of inaccurate advice or the

creation of unattainable expectations planted by Appellee Eidelman. Thus, under

Afuhammad and its progeny, Appellant was properly precluded from proceeding with the

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ADD35

malpractice case against Appellee Eidelman.

1be second allegation of error in the Concise Statement reads:

Did the trial CQur1 err i ll granting summary
judgment 10 Eidelrnan on grounds that Abeln's request for
damages, attributable to his forced rel inquishment of some
physical cu stody of his child due to Eidelman's
professional negligence, was tanlamollDt to a legally
foreclosed drum for emotional distress damages, where the
recoverability of such damages is a legal issue of first
impression in Pennsylvania, and to summarily preclude
such damages would vitiate meaningful claims for legal
maJpractice in most, ifnot all, child custody cases?

One of the arg uments made by Appellee Eidelman in support of her mOlion for

sumll1..8ry judgment was that Appellant Abeln could not prove dama~e s. However. the

dam~e issue was nOI a ba... is for the entry of summary judgment

Appellant's third allegation of error in the Concise Statement asks:

Did the trial court err in gnuuing Eidelman's motion
to sever her case from thai of COM de rend ant ... without
making "an express detennination that an immediate appeal
would facilitate resolution of the entire case," where the
trial court's termination of Abeln's case against Eidelman
alone, while Pepper's counterclaim against Abeln had yd
to be adjudicated, violated PaR.AP. 34 I (c) and was
entered without affording Abeln an adequate opportunity to
be heArd in opposition?

Appellant is incorrec t in his assertion that the severance order should be analyzed

under Pa.RA.P. 341(c). Rather, in rulin&on the motion, I properly appJieJ Pa.R.C .P.

2 13(b) which Slates:

The court, in furtherance of convenience or to avoid
prejudice, may , on its own motion oron motion orallY
party, order a sepamte trial of any cause of action, claim, or
cOWlterclaim, set-off, Or cross 5uit, or of any separate issue,
M

or of any number of causes of action, claims,
cOlUuerciaims, set~oITs, cross-suits, or issues.

8
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ADD36

Appellee Eidelm.m sought the severance of the claims against her from the claims

that Appellant brought against Anomey Pepper for several reasons. With the granting of

summary judgment on January 25, 2012, in favor of Appellee Eidelman, there were no

further claims by Appellant pending against her in lhe trial court so she wanted the case 10

end. It could not end v.lithout severance from the Pepper claims because Pepper's

counterclaim was still pending. Appellee Eidelman also sought the severance because of

concerns with her malpractice insurance carrier about an active Jaw suit agwnst her. Third.

sbe wanted to pursue n Dragol1f!lli action against Appellant Abeln. With these reasons in

mind, Appellee Eidelmnn was able to demonstrate that the motion should be gntoted in the

interesl of convenience and avoidance of prejudice to her. She met the standard for

severance of claims. The record shows that AppeJtee Eideiman gav~ notice of the

presentation of her severance motion. that AppeUaol did not appear to oppose it and tbar

there was no la ter challenge to the SeVer3111.:e order through a motion for reconsideration.

The fourth contention of error reads: "Did the trial abuse its discretion in denying

Abeln's motion ;n limine ro exclude at trial evidence of his mental heallh treatment, during

the pendency of the child custody case?" The motion in /imine was filed on October 12,

2011. It became moot when summary judgment WItS entered for Appe ll ee. {fsummary

judgment was properly emcred for Appellee, there would be no trial so there was no need

for a molion in limine.

The final issue posed by Appellant Abeln is: "Did the trial court err in denying

Abeln's molion to vacate lhe judgment entered in favor of Eidelman Gudgrnent entered on

June 7, 2013). where the severance ofber case from thc.t of her co-dcfcndant Pepper had

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ADD37

been erroneously or improvidently granted,!" As I have said, the judb'lncllt that Appellee

Eidelman took. on JUlle 7, 20 13, was utmecessary because the summary judgment entered

on January 25.2012, became a final order after entry of the November 6, 2012, severance

order. Therefore, the mOlion to vacate the redundant judgmcm probably should have been

granted. The severing of the claims against the two aUorneys was proper for ule reasons

thaI [ have staled . The matters raised by Appellant under this last claimed error do not

alter the fact tlml the Superior Court should now examine whether I properly entered

summary judgment for Appell ee Eidehnan, For the reasons stated above, it is respectfull y

submitted that tbe entry of summary judgment was proper and that this appeal should

therefore bedc lli ed.

September 18, 2013
~~, LIAM E. FORD, JUOGE

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ADD39

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

CIVIL DIVISION

PAUL 1. ABELN,

Plaintiff No.2009-C-6037

(SuperiorCoUl1 No. 2573 EDA 2013)

MARY 1. B. ElDELMAN, ESQUIRE, and
RJCHARD HUNTINGTON PEPPER,
ESQUIRE,

Defendants

-'
=
.............. '""" CP-
-n
Appearances:
0
,
""eo r- -rn
Rkhard L. eaplall. Esquire, ."

on behalf ofPlainti fl7Appellant, Paul J. Abeln '" 0
'"
Arthur w. Lefco, Esquire, '"'"
on behal f of Defendant/Appellee, Richard Huntington Pepper, Esquire

W[LLlAM E. FORD, ruOGE

Pa.R.A.P. 1925(0) 0 PIN ION

This is a legal malpractice case in which Plaintiff/Appellant, Paul 1. Abeln. brought

suit against Defendant/Appellee, AUomcy Richard Huntington Pepper, and Anomey Mary

.I. B. Eidclman who is Flat a party to this appeal before the Supe.rior Courl of Pennsylvania.

I granted defense motions for summary judgmenl dismissing the claims ngains\ both

sHorney de fendants Appellant Abeln filed tne present appeal from my granting lhe

motion for summary Judgment in favor of Appellee Pepper,

/1.1
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ADD40

Case Histon

This legal malpractice aClion arises from i\ custody case, Palll J Abeln v. Heidi C.

Null, Lehigh County number 2007·FC-0427 ("the custody case"). In this malpractice !;iuit,

Appellant clrums that each of the attorney defendants by their consecutive reprcscnr3tion in

the custody case wns responsible for diminishing through court orders his custody rights to

Paul Christopher Abeln, the child that he has with lleidi C. Noll (,'Mother").

Appellant commenced this malpractice suit on November 13.2009, by filing a

praecipe for writ of summons. Thereafter, Appellant filed a complaint on January 22,

2010 . Aller discovery, each attorney defendant ti led a motion for summary judgment on

September I. 201 L I granted the motions for summary judgment in favor of the attorney

defendants and against Appellant on January 25,2012. The judgments were not

appealable at that poilll because Appellee Pepper had an unresolved cottnlercluim for

counsel fees filed under this same case number.

On November 6, 2012, I eOiered an order granting Attorney Eidelman's

uncontested motion to sever the malpractice claim brought against her from lht!

malpractice claim brought against Appellee Pepper. Appellnnt Abeln filed a notice of

appeal to the Superior Court from [he January 25, 2012, order granting summary judgment

in favor of Attorney Eidelmao. That appeal is pending at Superior Coun docket number

1978 EDA2013 .

On September 6, 20 13,judgment was entered in favor of Appellee Pepper and

3g3mst Appellant on Pepper's counterclaim lor counsel fees which Pepper filed in

response 10 Appellant's malpmctice complaint. On &'j)tembcr la, 2013, Appellant

appealed the judgment on the counterclaim and the slumnary judgment in favor of

2
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ADD41

Appellee Peppcr on the malpractice allegations. This is the present appeal and it is

assignc.d Superior Court docket number 2573 EOA 2013. In all order dated November I,

2013, the Superior Court consoJid.1ted the two appeals.

On October 1,2013, in response to an earlier oreier, Appellant filed a statement

under Pa.R.A.P. 1925(b) ("Concise Statement") in which he sets forth four numbered

claims aferrar in the present appeal at 2513 EDA 2013. Ench challenges the granting of

summary judgment for Appellee Pepper.

Discussion and Conclusion of I.&w

To properly evaluate Appt= lIant's claims of error, it is necessary to understand the

history of Appellee Pepper's representation of Appellant in the underlying custody case.

Appellant's first a1l0mcy in the custody case was defendant, Attorney Eidclman.

Appellant retained Attorney Eidclman on March 29, 2007. With that attorney's assistance,

Appellant Abeln obtained two agreed imerim orders for custody ofbis son.

On November 16,2007, Appellant fi rst consulted Appellee Pepper. (paragrapb 21,

complaint.) On the same date, "Appellwlt fired Eidclman as his altorney for incompetence.

via email, and asked her to request a continuance of lhc (custody) trial (scheduled for

November 19, 2007) and to contact bis new anomey, (AppeHant) Pepper, prior to [the

custody lrial] ." (paragraph 24, complaint.) Despite this last statement, Appellant did not

execute a written retainer Onsible for the terms of this order

ag.reed by Appellant even though Eidelman had been fi red as call1lsel before this agreed

order was entered .)

Appellant Abeln and Mother appeared in court on January 22, 2008, for the

rescheduled tri;:li . Appellee Pepper represented Appellant Abeln and Mother also bad

counsel , Another agreed order was entered This is the order which Appellant attributes to

malpractice by Appellee.

Under this agreed order, the parents shared legal custody of Paul Christopber.

Mother was designated as the primary physical custodian. Appellalll WllS given partial

custody rights. The lengthy agreement of the parties was set forth on the record before the

Honorable Maria L. Dalltos on January 22, 2008 . At one point during tbe prc~'entntion of

the agreement. there was an interruption when Appellant Abeln and Appellee Pepper spoke

privately. At a later point during the proceeding,s, Appellant, through Pepper, clarified that

the parties would be fo llowing, in reg".d.rd to counseling and a parenting coordinator.

recommendations found in a written custody evaluation made part of the record (hal date

and prepared by a psychologist, Doctor Phillip Nastasee. Appel lee Pepper stated that

4
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ADD43

Appellant was noting his disagreement with other significant aspects of Doctor Nastasee's

report. Doctor Nastasee's report resulted from an ag.reement of the parties made months

earlier that they would pay him to do a custody evaluation of this family . Both parents

stated their agreement to the terms of the custody arrangement reached on January 22,

2008, in response to questions by Judge Dantos before she entered the agreed order which

resolved all issues for which trial was to be conducted.

Appell ant perceived the Nastasoe report as unfavorable to him. He ciaims in the

pt"esent suit that Appellee l'cpper was professionally negligent in not challenging the

Nastasee repon at the January 22, 2008, trial. Specifically, Appellant contends that Pepper

should have hired an opposing psychologist to critique the Nastasce reporr. ln~1.cad ,

according 10 Appellant, "Pepper recommended to Abelll lh81 they exploit a strategy of

delay to allow the (r]eport to become stale and then request n new evaluation. " AppeJlee

Pepper, with Appellant's l.'onsent, followed through on this strategy by filing a petition for

modification of custody on March II, 2008, and by filing the " Petition for Psychological

and Mental Examination of Panics" on September J 6,2008 .

tn this petilion for a second evaiuat.ion, Appellee Pepper asked thai the court direct

the parties to u.ndergo u psychological evaluation by Steven E. Samuel, Ph.D .. Appellee

Pepper filed a memorandum in support of his petition . Pepper represented Appellant

Abeln at the October 8, 2008, hearing on the petition. Pepper brought Doctor Samuel to

the hearing. No one rcstified at the hearing over which I presided. I granted the pt:tition

for Ihesecond evaluation based on the arguments of coun~l.

On October 16. 2008, Mother, acting pro Sit, filed n mOlion for reconsideration of

the order seuing up the evaluation by Doctor Samuel. After argument on this motion. J

5
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ADD44

entered an order dated November 13,2008. granling reconsideration. Tn mal order, I

rescinded the order ofOciober 8, 2008, so that Mother ilnd Appellant Abeln were no

longer compelled to undergo an evaluation by Doctor Samuel. 1 indicated that the October

8, 2008, order " is r~cindcd without prejudice LO plaintiff (Appellnnt) to renew his motion

for psychological evnluation at the appropriate time during the trial in this case."

On January 28, 2009, I entered an order granting Appellee Pepper' s petition to

wilbdrawas counsel for Appellant Abeln . According to Paragraph 3 of the petition,

Appellunt had not paid Appellee for services rendered and Appellant and Appellee had

philosophical differences about the handling of the custody case. On February 13, 2009,

Attorney Stephen J. Anderer entered an appearance 011 behalf of Appellant.

Mother filed a petition for re(ocatioo to Arizona 00 January 16, 2009. That and

Appellant's petition for modification were heard at the trial which was conducted in Mareh

and April . 2009, before me. Attorney Aoderer represented Appellant at that custody uiaL

Mother was also represented by coWlSel at the trial. Altorney Anderer, in his trial

preparation and at trial , did not renew the request for M. evaluation of the parties by Doctor

Samuel. On May t 8, 2009, aller trial, J entered an order mandating tbat Appellant Abeln

and Mother jointly share legal custody and equally exercise physical custody of their child.

With the above history in mind, 1 now turn to the four allegations of error raised by

Appellant in hjs Concise Statement.

In the first allegation of error, Appellant Abeln Ilrgucs that r improperly granted

summary judgment in favor of Pepper under the Mllhammadv. Strossburger, 5261'a. 541 .

587 A.2d 1346 (1991),lUld McMahan v. Silea, 441 Po.Super. 304, 657 A.2d 938 (l995)

cases. 1 found that, as a m.atter of law, summary judgment had to be entered for Appellee

6
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ADD45

Pepper because the alleged negligem conduct against Pepper stemmed from the custody

order of January 22, 2008, entered with Appellant's agreement without any evidence of

coercion or other improper action by Pepper. My decision was correcl

This is Appel lant's al legation against Appellee Pepper that Appellee forced him 10

reach an agreement embodied in the Jlll1uary 22. 2008, order which cut into Appellant's

custody time with his child:

Pepper unfairly pressured Abeln into accepting au
unfavorable settlement, of the custody issue that would
()then.'Iise have been resolved at trial, by both failing to
adequately prepare to effectively advance Abeln's interests
at the trial and by repeatedly advislng him that, in the
absence of a settlement, tbe tenor of the (Nastasee) report
and the inexperience of the judge virtually bruaranteed that
Abeln would lose what little physical custody of Paul he
and his son enjoyed .

(Paragrap h 66(c). complaint}

As a general rule, a litigunt is not pennitted to agree to a settlement and

subsequcntly bring II. malpractice suit against his II.ttorney based on tile temlS of the

sealemenL Muhammad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346,1348 (1991).

The Superior Court hus held that Muhammad prechldes a malpmcticc action where a

settling client merely alleges that settlement resulted from "n deficiency in the lawyer's

exercise of his or her professional judgment." McMahon }I Shea, 441 Pa.Su~r. 304, 313,

657 A.2d 938, 942 (1995). Conversely, a malpractice suit stemming from a settlement

may proceed where a litigant shows that the settlement resulted from fraud or from the

attorney's failure to correctly explain legal principles or the consequences of the settlemcnt

10 the litigant. Id.

In the evidence presented through discovery, Appellee Pepper, upon review of the

7
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ADD46

NnSHlsee report, concluded that Fnthcr would attain n more favomble custody arrangement

through settlement tban through trial. Instead of directly attacking the Nnstasee repon,

Pepper advised Appellant that the better course of action was to reach a custody

arrangement with Molller at the scheduled trial on Jnnuary 22, 2008, allow the Nastasee

repan to lose its effect Ovcr time, work on personality issues through therupy, scc.:ure a

second evaluation orlhe partics and then anempt to get a better custody orrangcmcnl in a

subsequent proceeding. Appellant accepted tb.is strategy and then AppcUunt and Appellee

worked to implement it.

Appellant Abeln now contends (hal the January 22, 2008, agreed order te~ultcd

from Pepper's flawed strategy of not impel1ching the Naslasee report, pursuing the

senlemcnt option und then bringing litigation Inter oncc a more fnvornble psychological

evaluation was obutined. Appellant does not allege thol he entered the January 22,2008,

agreement as 11 result of frllud or Pepper's failure lO correctly explain to Jilin the pertinent

legal principles or the consequences of the agreement While Appellant contends that he

was coerced into the agreed order, examinntion oflhe evidence developed through

discovery reveals thut Appellun! is octually claiming "a deficiency" in Pepper's "exercise

ofhis professionuljudgment" in pursuiog ooe iitigulion Strategy over another. As tbe

Superior COW1 noted in McMahon v. Shell, the Muhammad rule uperotes to preclude

malpractice suits where a litigant claims his unfavorable settlement resulted merely from

his lawyer's exercise of professional judgment. Thus, these malpractice claims asserted by

AppclhlOl arc precluded as a matter of Jaw.

FUrther. Appellant gave his infonned consent to the agreement entered on Jll11uaJy

22,2008. The record from me hearing reveals 8 setting forth of the specifics oflhe
 Circulated 12/30/2014 11:51 AM

ADD47

custodyagreemenL At onc point, as the agreement was being sel forth, Appellant

inteljecled his comment that he felt tbe transportation provisions for Paul Christopher wem

too broadly stated and that there was conflict in the transportation provisions. N.T.,

1/22/08, p. 7. Later in the hearing, Appellant responded to a question by the judge that he

understood provisions regarding any planned removal of the child from Pennsylvania.

NT., 1122108, p.20. Finally, Appellant gave his approval to the custody provisions put on

the record by the nltomeys. N .T. , l/22108, p. 23,

Appellant's statement in his complaint (Paragraph 66(c» that he was "unfairly

pressured" by Pepper to enter into the January 22, 2008, agreement is contrary to

Appellant's emai l to Appellee Pepper dated December 20. 2007. In it, Appellant staled to

Pepper: "If you are successful in getting Zamborsky (Mother'S attorney) & Heidi to

discuss n custody arrangement, Twould consider Heidi having title of primary physica l

custodian w ith the following visitation schedule (which Father then set rorth)." (The

December 20, 2007, email is atlached to Appellee Pepper's motion for summary judgmem

as Exhibit G. Appellant admitted sending this email in Paragraph 20 of his reply to

Pepper's Illotion for summary j udgment filed on September 29, 2011.) Also, in a

statement wbich is part of a document that Appellant prepared entitled "Se1fRepon

Progress Note, dated February 20, 2008," Appellant wrote:

1 made the hardest decision of my life on 1/22108 by
offering Heidi the title of primary physical custodian, not
because she was deserving of it but because I hoped that by
giving her what she craved most, that she would stop the
hostile actions and start 10 cooperate in a civil, responsIve
manner that is in {he best In!erests of our 5011.

9
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ADD48

(The progress note is altached as Exhibit S to Appellee's October 24,2011. "Motion to

Supplement Summary ludgment Record" (supplemental motion). Appellant has

continned the progress note is authentic. See Exhibit 1 to the supplementaL moti on.

Appellant furthc r demonstrated that the January 22, 2008, agreement was his

agreement with his testimony on March 24, 2009, during the custody Lrial, in the following

exchange:

Q: And why did you agree to the order (stipulated
order of January 22. 2008)?

A: Because 1 was very concerned about Nnstascc's
report having so many problems with it 1 was
concerned that I was gOitlg lO have 11 worse - I was not
going to sec my son at all. And I had hoped that if I had
given Ileidi what she was craving, that the hostility and
aggressiveness towards me would end. and that she
would enable us to slart co-parenting in the best interest
of our son. And I had hoped, based on the terms of that
agreemen!, that we would be able to use co- parent
counseli ng and a pareming coordinator to resolve
differences and get on better grounds so that in fact we
would maximize the amount of time that bmh of us
s hared with ou( son.

N.T., 5/24/09, p.1J O.

Thus, under the authority of Mlihammud and McMahon, f properly entered

summary judgment for Appellee Pepper.

In hill secoud allegation of error, Appellant claims that I ignored bis ··credible

evidence in the record" s upporting the malpractice clai m so that the granting of sum mary

judgment wa:- not proper. As to the evidence I supposedly ignored, Appellant points to

"the professiona l opinion of a qualified legal maJpmctice expen." This is a reference to

Richard A. Katz, Esquire, who authored an opinion letter dated April 29. 20 11 . The

10
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ADD49

August 29 letter refers to a March 4, 2010, letter by Attorney Katz. This earlier leiter does

not appear LO be part of the record. Appellant also refers to "Pepper's admIssions in

deposition"' which are not specified in the Concise Statement. Finally. he refers to

Appellant' s own testimony that Pepper' s failure to adequately prepare for a custody trial

\vrongrully prevented lum from exercisi ng meaningful discretion" to choose a trial over the

settlemem of January 22, 2008. There is also no specificity given as to the fashion in

which Appellee Pepper supposedl)' failed to adequately prepare for trial although the

Concise Statement, taken as a whole, does make it clear that Appellant faults Appellee

Pepper for no! preparing a critique afthe Nastasee report

I have aJrcady commented on Appellee Pepper' s advice not to attack the Naslnsee

repon. That entire subject falls under the strotegy advice provided by Pepper (0 Appellant

and accepted by Appellan t. As I have already explained,. as a matter of Ja.w, that strategy

decision by Pepper cannot be used as a basis for this malpractice claim after it resulted in

the agreed order of January 22, 2008. The remainder of these nllegalions in Appel lant'S

second claim of error are nol sped tic. I do not know to what aspects of the legaJ

malpractice expert's reports Appellant is referring and to what alleged lack of trial

preparalion Appellant is referring beyond the NastaSec issue Moreover, all of me legal

malpractice expert's opinions and Appellant'S preserved issues appear to go back to the

Nastasee issue.

In the third ch.llm of error, Appellant complains that thc court's erroneous rulin& in

granting summ ary judgment in favor if Appellee Pepper wrongfully depnved him "of his

only viabJedefense to Pepper's counterclaim forattomey ' s fees." The counterchl1m was

heard at an arbilration at which no rec.ord was made, However, jfthe court properly

II
 Circulated 12/30/2014 11:51 AM

ADD50

granted summ ary judgment in favor of Pepper. then there is no substance to this al legation

of errOr and it should be denied.

The final allegation of error reads:

Did the trial court err in finding no negligence in
Pepper's failure to offer testimony of a quwified
psychologist, with knowledge of Abeln's wifc's past
performonce on certain probative psychological tests, to
-support A beln's motion to have the menIal stability of his
wife eva luated in order to gain primary physical custody of
his child?

A response 10 thls requires a summa ry of what 1 have already stated. The

psychological evaluation completed by DoelOT Nastasee before the January 22,2008.

agreed order resulted from the decision by Appellant Abeln and Mother to jointly pay for

and cooperate in the completion oftllllt report. Second, there was th e strategic decision

recommended b y and then made by Abeln oot to have a second psycho logical report

completed before the January 22, 2008, agreed order. Third, Appellant Abeln, agreeing

with the advice of Appellee Pepper, wai ted a number of months following the agreed order

and then filed a mOl ion aski ng the court for a second psychological evaluation to be

conducted by Doctor Samuel. The court initiall y granted th3t request and then rescinded

the authorization for it against the wishes of both Appellant and Appellee. Fourth,

Attorney Anderer, with whom Appellant Abeln apparently has no problem in regard to

representation, did not resubmit a request for a second psychological evaluation at any

point before or during the trial that occurred in March and April of 2009, despite being

given the opportunity to request a second psychological evaluation by the COlirt when it

rescinded the authorization for the evaluation by Doctor Samuel. The trial in 2009, \.vhere

no additional p sychological evidence was presented, yielded a result that Appellant

12
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ADD51

acknowledges was acceptable to him . Thus, there is nO factual dispute that Appellant

Abeln was able 10 secure a result acceptable to him in terms of custody wlth his son

without any second psychological evaluation.

As the fact·finder and the judge who made the decision at the trial in March and

April of 2009, far too OHlch weight is placed by Appellant Abeln on the effect that Doctor

Nastasee's report and lestimony had at any point. This was perhaps best demonstrated by

the result afthe lrial conducted in March and April, 2009. With these factors in mind, as a

matter of law, there can be no merit to the claim that Appellee Pepper was negligcnl for

foiling to go beyond what he did to secure a SeoJnd psychological evaluation.

Because the granting or summary judgmeot in favor of Appellee Pepper and
ag:linst Appellant Abeln was proper, this appeal should be denied.

November 8, 2013
lAM E. FORD, } E

13
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IIADD41
ADD4 I

TIIE counT
IN TIlE COURT OF COMMON PLEAS OF LEIllOR
LEIDCR COlil'
U1 I
Defendants . -
~
:;:
:0:
r"lI-~l
0CJ
" ~

.........
.............. ~

WILLIAM E. !'ORD,
FORD, JUDGE

OPINION
OPIN IO N

This is a legal
Jegol malpractice suit which arises from a Lehigh County cuswdy
cust.ody action,
action.

Paul Abeln \I, Heidi C.
C. Noll, Lehigh County 2007·FC-0427.
2007·FC-0427 . The child, orlhe
ch ild, the subject or lhe

cllstody case, is Paul Chri
custody Christopher
stopher Abeln who was born on August 7. 2006. Paul
Pa.ul

Paul J. Abeln (who will be referred to as
arc plaintiff herein, Paull.
Christopher's parents an:

"Father"), and Heidi Noll Abeln ("Mother"), 'NItD
"Father"). party to this maJpraclice suit
YAIO is not a part)1 suit.

Attorney Mary J. n.
Defendant, Anomey
Defendant. R EideJ.rnnn,
Eidelmnn. and lhen
then defendant, Attorney Richard

reprcscnte:i Father in the custody 3ct.ion.
Huntington Pepper, represcnte:i action. Father aJlcges in Ibepresenl
tbe present

action that each of these attorneys commined
legal malpractice iictiol1lhnt committed professional
professional negligence
neg!igence

and breach of contract in each
t!aCh attorney's respective representation of him in the cuslody

case .
case.

oow,
NON, bG
/pr. -tJ.
t.).
COPIESOFTHEWlTHINCOURT
COPIES OF THE WITHIN COURT
OROER
ORDER OR OECREE
DECREE MAILED
MAilED TO
AU.INTERE~TED
AIl.INTERESTED PARTIES BY'
9\'
cW
C rjf
 Circulated 12/30/2014 11:51 AM

IADD5 1

DcfcncU.U1ts filed motions for summary judgment. Because lhere
DefcncU.Ults there is merit to the

mOlions, I granr
mOlions. grant them and enter judgment for the defendants.

Claims against
Claims: agHinst Atlorney Etdclman
Attorney Eidclman

father
Father hired defendant Eidelmun
Eidelman as his attorney on March 29. 2007.
2007, to pursue a

diVorce
divorce from Mother and for c~10dy of Paul Christopher. Eidelman filed a divorce
fOT custody

complaint on March 30. 2007 . The complaint i.ncluded
30, 2007. included a8 COWlt
count for
ror primary custody of Paul

The divorce case with custody count was docketed in the Lehigh
Christopher. 'me Lehigb County

at 2007-FC0427.
Court of Common Pleas fll 2007-FC-0427.

On March 24, 2007, Mother secured an order from a magisterial dislrictjudge

cpr rut ex parle
against Father wldcr Pennsylvania's Protection from Abuse Act (PF A) at all pal',e

hearing. Under t he
be terms of that order.
oCtha! order, Father was evicted from the
rhe marital
marilal residence in

Orefield, Lehigh CounlY, Pennsylvania. The order provided that it wouJd expire at {he
Lehig.h County, the end

oflhe next busi.ness
oflhc ul.lless further action were tuken
business day wllcss taken by Mother. Mother permitled
permitted the

ex pane
e.c parte order to expire and sbe
she did not.
not proceed with the PF
PFAA matter in Lehigh CoUnly
COilnlY

Court.
Court. flowever, ex parre order, she took
(lowever. after Mother secured the I!.X LOok Paul Christopher wilh
with

herto
heTlo Arizona without advance not ice to Father.

5, 2007, defendant Eidelman filed a petition for emergency relief on
On April 5,2007,

rather. In the pelition.
behalf of Father. petition, Father sought the immediate return of Paul ChIistophcr
Christopher to

PennsylVania.
Pennsylvania. Father also
a lso sought cu~1ody" of
soughr "temporary primary physical custody" oIPaul
Paul

Christopher.

April 5, 2007, at a hearing in
On AprilS, In Lehigh County
CoW!ty Court
Cowt with both parents present,

the petition for emergency reJiefwas
relief was resolved by agreement. Under the agreement.
agreement, Father

2
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IADD6 1

was granted exclusive possession of the marital residence . He was made thc
the primary

physical custodian of Paul Christopher Mother
MOlbt"r was given visitation with lhe chi ld for a
the child

that these provisions would be
minimwn of three hours per day. The parties agreed Lhallhesc
minirnwn

temporaC)', Additionally, Mother agreed to withdraw a protection from abuse case she filed
tempora.ry. met!

in Arizona. The part ies agreed to engage in counseling. Defendant Eidelman represented
parties

rather at this hearing.
Father

On April 24, 2007
2001 ., Mother filed a petition for shared legal and physical custody of

jlauJ Christopher. A hcuring
]lauJ hC<1ring was conducted On this petition
on Ihis 2007 . Derendant
petilion On May 2, 2007. Defendant

Eidelman represented Father at Ihe
the May 2 hearing. Again an agreement was reached. The
agrt:ement W<.tS

agreemeni,
agreement, which was made an order of court,
CQurt, had interim custody provisions. Under the

agreement, tbe parents would share legal custody of Paul Christopher. Father remaincd
agreement. the remained the
thc

primary physical custodian of Paul Christopher. Mother
MOlher received incre."\sed
increased partial

custody rights. The parties agreed that either Doclor
physical cllstody Doctor Phillip Nastasee or Doctor

Eileen evaluation oflhe
Eilecn Ginsburg would do a psychological evnluation parties.. Trial on the custody
of the parties

count
COUllt in the complainl
complwnt was scheduled for November 19, 2007.
2007 .

According to the present malpractice
ma lpractice complainl,
complaint, Father aod
and defendant Eiddman
Eidelman did

nol receive a copy of Doctor NasL.1See
not Nastasee 'S
's evaluation until November 14, 2007. On

"November 16, 2007, Abeln fired Eidelmnn
EideLman as his attorney for incompetence, c-mail,
incompetence. via e-mail,

and asked her to request a continuance
continl1ance ofthc
ofllie trial and to contact his new attorney.
attorney,

(de fu nd ant) Pepper, prior to November 19."
(defendant) 19." (paragrRph
(paragraph 24, Complaint.
Complaint.))

The Honomble Maria L. Dantos
Honorable Marin D:m(DS convened coun in the custody CWle
case all
0 11 November

19.2007. Defendant Eidclman presented a petition to withdraw as cowlSel
counsel for Father.

Judge Dantos grantcd
granted that petition.

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IADD71
IADD7 1

According to Ihe
the maJpmctice compluint,
complaint, father
Father initially consulted defendant

16, 2007, the day Father ""fired"
Pepper on November 16.2007, fired" EideJrnan.
Eidelman. (Paragraph 21.

Complain!.) Falher
Complaint.) Falhercxc.cuted written retainer agreement with Pepper on December 3.
executed a wrilten 3,

2007. (Paragrapb
(Paragraph 32, Complaint.) Pepper entered his appearance on February 8, 2008,

January, 2008, as I will explain.
although Pepper appeared with Father in court in JlUluary.

Ir return to a description of what occurred.
occurred when this case was called for trial on

November 19,2007
19,2007. Shortly after the stan
sIan of the hearing.
bearing, defendant Eidelrnan
Eidelman was

excused from further
funhcr representation. Defendant Pepper, who W8S
\N8.S not yet retained and was

fU'st consullcd
only fll'st consulled on
all the
th e Friday before this Mond.1-}'
Mond.'lY hearing, did not appear at the

November 19 hearing.
bearing. By agreement. the trial was continued to Januury 22, 2008.

Mother, through het
her attorney.
aUomey, indicated she was prepared on November 19 to proceed to

trial, but !.he
the court
co urt gave Father
ratber the
Lhe oppOrtunity
opportunity to secure the services of Pepper. Also all

November 19, 2007, aner
lifter Eidelman was excused from funher representation, Father,

~·e, agreed 1
acting pro SC, to
0 another imerim
interim cUSlody
custody arrangement whereby he nnd Mother

would share legal and physical
phys ical custody of Paul
Pau l Christopher.
Christopher.

In Count r oflhe complaint, Father aUegcs
alleges legal malpractice by defendant

Eiddrnan
Eidclrnan for the fo
following
Uowing reasons;
reasons ; (a) failing to seek access to Doctor Nastasee's work

fa iling to prepare Father for rus
papers for the psychological evaluation; (b) failing his examination

by Nastasee as part of
ofthc
the evaluation process;
proccss; (c) [ailing
failing to seek a continuance of the

November 19, 2007, trial date and failing to
10 retain an independent expert to critique
critiq ue

Naslasee's findings ; (d) fail ing LO
to prepare witnesses for and arrange the aitendance
attendance of

,viUlesses
witnesses at at trial; (0
al trial; (e) failing to prepare Father for testimony al (f) preparing proposed
propOsed

findings of fact and
und conclu
conclusions
sions of law before the presentation of any 101101
Iriailestimony;
testimony; (g)

4
 Circulated 12/30/2014 11:51 AM

IIADDSI
ADDS I

Inking
tak ing an out-of-state Immedialely prior to trial "with
oUI-of-Sl
The gravamen of Father's~ complaint is that the negligence of his attorneys led to

orden; whereby his custody with Paul Christupher
orders Christopher was gradually diminished through court

orders. While there was diminishment of Father's custodial right3
rights at tJlnes
tllnes through court
coun

orders, there is no evidence in the record that it was caused by any negligence by defendant

Eidelman.
Eidelman.

3ttorney, the agreed order of April S, 2007,
Father'ss anomey,
With defendant Eidclman as Father'

was entered. Under thal
that order, Father was made the sale legal custodiun
custodian of
ofPaui
Paul

Christopher. He was granted primary physical custody of Ihe
the child. With Eidelmilll
EidclllUUl as his

attorney, the agreed order of May 2. 2007, was entered. Under thal order, lhe
the parties

shared legal custody of Paul Christopher. Father remained the primary physlcnl
physical custodian,

but Mother's
MOlher' s custodial lime
time wilh
with Paul Christopher increased. These are
are. lhe
the only two

order.;
orders setting forth custodial rights oflhe parcnLS while Eidclman
Bidelrnan was Pather' s attorney.
allorney.

'f1te
TllC order entered on November 19, 2007, WIlS entered by agreement
was enlered of Father aftcr
agrecmem ofF1tthcr after

Eidelman
8idelman had been excused by court order fJom
fIOm further representation. Under this agreed

the panies shared
order, thepanies
order. sharcd both legal and physical custody of Paul Christopher.

There is no evidence that defc:ndanl
defendant Eidelman is legaHy responsible for
ror the

9, 2007, order providing shared custody. Because Father ""fired'l
November J19.2007, Eidclman
fired') Eidelman

the November 19 hearing and Judge Damos
days before [he Dantos granted Eidclman ' s petition to
Eidelman's 10

stated their agreement at the November 19 hearing, it would
withdraw before the parties slaled

have been improper for Eidelman to give her input about
abom the wisdom of
oflhe
the agreement or

p laintiff as the agreement was being stated. Father had not yel
to provide advice for plaintiff

6
 Circulated 12/30/2014 11:51 AM

ADD10

QWI1 - by his choice-
secured the services of his next attorney so he was on his own choice - when thl!
the

agreement was reached. The record of that
thai hearing demonstrates a complete selling
setting forth

orlhe agreement and Father's acceptance of it.
anhe

Furthennorc.
Furthennorc, as a general rule, a litigant is not
nol pennilted
pennitted to agree 10
to a settlement

and subsequt:l1tly
subsequently bring a malpractice suit against his
hi s aflamey
attorney based on the tenns oflhe
terms of the

seulemem. Muhammad v. Slrassburger.
Strassburger, 526 Pa. 541 , 546,587 A.2d 1346,
1346. 1348 ((1991).
1991 ).

ro commenting on the proper application oftht!
In announced in Muhammad,
oflhe rule annolillced Muhammad, the

Superior Court stated:

Muhammad has been held to \0 be controlling where the
consistl."Ci or "advising and
lawyer's alleged negligence consisted
represenling [a client] and in negotiating for him the
representing
terms of
tenns o([a] sale," Goodman v.
senlcmenl and sale:'
[a] settlement v, KOfzeh,
Katzen,
436 Pa.5upec. 247, 250 (1994)
71. 77-79, 647 A.2d 247,250
PH.Supe,- 71,77-79, (1994)..
Muhammad was also held to be detemlinutivc
deremlinarjve where i.he tile
exprclised dissatisfaction with the amount
client merely expressed Mlount
of her marital thal the lawyer's
murital award and averred lhalthe
conduct had caused herber to receive "8"a deficient amount"
marilal property, alimony and other available relief.
of marital
Spirer
SpireI' v. Freeland & Kronz, 434 Pa.Super.
Pa.Supcl", 341 ,344-46,
, 344-46.
673, 675 (1994). Finally, in Marro.~·
643 A.2d 673,675 Ma,ros v. '.
Cancilio,
eoneilio, 427 P,,-Super.
Pa.Super. 612, 629 A.2d 1037 (1993),
.Mllhammad
Muhammad was held to be controlling where lhe
10 hI! the
lawyer's alleged negligence had consisted of on "alleged
lawy.:r's
cliemJ in
failure to adequately represent [the client]
negotiations of the settlement agreement." Id. ItL at 613,
629 A.2d at 1038. These are 8re sitU3tions
situations in which the
client
c lient perceived a deficiency in the lawyer's exercise of of
his or her professional jjudgment.
udg.ment.

McMahon v. Shea, 441
McMohon 44 1 Pa.Super. 304, 312-13,
312·13, 657 A.2d 93H, 941-42 (1995).

Conversely.
Conversely, tbe Muhnmmad is inapplicable where a settlement occurs
the rule announced in Muhnmm(ld

as 8a resull f(",dUd or an aUomey's
result of fnmd attorney's fai lure to accurately advise the sewing
failure settling client of an

eSlnblished
eSLDblished principle
prinCiple of law or Lhe
the consequences ofthe
of the settlement.
setllement. Muhammad v.
v.

7
 Circulated 12/30/2014 11:51 AM

ADD11

Strasshurger, 526 Pa. at 546, 587 A.2d at 1346; and McMahon v.
Sfr(Jsshurger, 1'. Shea, 441 Pa.Super.
Pa.Supcl". at

313,657
313, 657 A.2d at 942.

demonstrates that
In the case at bar, the record demonstroles mat Falber
Father knowingly and voluntarily

entered the November t 9,2007,
enteroo agreement. As was previously mentioned, Eidclman was
9. 2007. agrecluent.

not present at the agreement because Father chose to terminate her representBtion
represcmotion three

days before the hearing. All of the evidence demonstrates that Father entered the

agreement w ithout the assistance of Eidelman by his Own
without own choice. There is no evidence

demonsirating
demonstrating that Father entered the agreement res~l h of fmud
ngreement as a result fraud or a failure by

Eidelman to wi th accurate legal advice.
La provide Father with advice. Thus, under Muhammad and its

progeny, Father is precluded from alleging malpractice
rruUpractice against
again st Eidelman based on the

oftbe
terms of the November 19 agreement
agreement.

Father also makes triaJ
trial preparation allegations against defendant
defendam Eidelman.,
EidelmflTL As r
ou~ father
pointed out, Father alleges in Paragraph 56(a) of the complaint, thai
thal. Eidclman failed to

tbe work papers for the evaluation by Doctor Nastasee. However,
secure the However, only two days

after the Nastasec
Naslasec report was given to Eidelman and Father, Father fi
fired
red Eidelman. Father

further faults Eldelman for nm
not preparing him fo
forr his interviews
inter views with Doctor Nastasee.
Naslasec.

HO\\lcver,
Hov,'cver, neither the complaint
co m plai nt nor the discovery indicates how the failure to interview

alTected the report or testimony of Doctor
affected DoclOr Nastasee..
Nastasee_

Father claims defentlant
defendant Eidelman
Eidelmnn was negligent in not requesting a continuance of

t 9, 2007, trial after the Nastasee report was released. The court granted a
the November 19,
tbe

continua nce of the November 19 trial by agreement of the parties. The court granted the
continuance

continuance so Falher
Father could secure the services of hls
his next
ncxt attorney,
attom ey, Pepper. Therefore,

8
 Circulated 12/30/2014 11:51 AM

ADD12

Futhcr
Father cannOl dCmOnSL'"3tc any damages resulting from this alleged negligence on the part
cannot demonstrate

ofEidclman,
of Cidclmllll,

father next contends that defendant Eidclman was negligent ror
Father l1cxt for not retaining an

expCI1
CXPC11 to cri tique Nastasec's
critique Nastasee's report, not prepanng
preparing wiLrlesses
wi tnesses for
fo r trial and not preparing

Father fo
forr trial. that Eidelman did not retain another expert. how could
tria l. As to the allegation tllal

she do that? As Ir pointed out,
Qut, she was fired right afte
afterr the Nastasce report was released.

of insufficient trial preparation by November 19,2007,
The other allegations ofinsufficient 19, 2007, have no

merit. The continuing of the trial date beyond November 19,2007.
19.2007, was reasonable and

even predictable in light of the release of the report only days before November 19 and
preilictablc In

Father's
Father'S firi ng or
firing Eidelman. The continuancc
of Eidelmao. coolinuMCC was granted to allow Pather
Father to preparc.
prepare.

Trial did nol
not occur until more than a year and four months ancr Eidelman was excused
aller Eidclman

from represenLation and, in the interim, Father and Mother lived under their agreed custody

order of November 19,2007. Under these circumSlances.
circumstances, there
thcre is no evidence of

insufJiciclltlrio..l
insufficicnt preparolion nor evidence that Eidclman's
trial preparation imp(iCl~d any
Eidelrnan's conduct impacted

di
dim inishment of Father's custody rights.
minishment

As to the remaining allegations against defendant
al legations of professional negligence againsi

Eidelman,
Eidelrnan, they arc to the contentions about Eidc:lman's
are patently frivolous. I refer lo Eidelman's pre--uial
pre-crial

preparation of findings of fact and conclusions of law. her vacation and other allegations
prcpararion

about continuing 19,2007, trial date.
continu ing the November 19.2007,

The proft:SSional negligence claims against defendant Eidclman lack a legal and

fac tuall baS
factua basIs
IS so judgment must
mu st be entered for Eidelman
Eiddmao on them. Further, becausc tJle
Further. because the

contrac t claim rests upon the claims
breach of contracl claim s of negligence, the breach of contract claim
ofnesligcnce,

fa il s..
fails

9
 Circulated 12/30/2014 11:51 AM

ADD13

Claims ugainst
again.,1 Attorney Pepper

Following Eidelman's withdrawal frOot
frOUl the case, Falher
Father ruld
and Mother appeared in

court on January 22, 2008, for the rescheduled triai.
trial. Both parents were represented by

counsel for that day's proceedings. Another agreed order was entered. Under the agreed

order, tbe parents shared legal custody of Paul Christopher. Mother was designaled
order. designated as the

phys ical custodiall.
primary physical custodiun . Father was given partial custody rights. The lengthy

agreement of the
me parties was set forth on the record before Judge Dantos. At one point
Danlos. Alone

during the presentation of the agreement, there was an interruption when Falner
Father and his

attorney.
attorney, defendant Pepper, spoke priwlcly.
privately. At an lulcr
later pOint
point during the proceerung:;,
proceedings,

Father, through Pepper, clarified thai
that the patties
parties will be following Doctor Nasl.lJ.see's
Nnstilsee's

recommendations in regard to counsd
counsel ing
ins and 8a parenting coordinator hut
but thai the parties

Doctor Nastasee's
are not agreeing to DOCior conclusions. It was also made clear that Father was
Nastasee' s CQnclusions.

contesting allegations. conclusions, diagnoses and other things contained in Doctor

NaslflSee' s reporl.
Nastasee's report. The report was made part of the record during that proceeding. Both

parents stated their agreement to the terms oflhe custody arrangement in response 10
to

questions by Judge Danlos.
Dantes .

On March II,
II , 200g.
2008, ailer hearing. the Honorable Edward D. Reibman
after a contested hearing,

entered a filml
final PFA order in favor fhree years.
favo r of Mother and against Father fo r a period of three

(Lehigh County
Counl)' case number
number2008-PF-0089.}
2008-PF-0089.)

On March 11,2008,
II, 2008, Falher,
Father, through defendant Pepper, filed a petition for

modificntioll of custody Mother filed aB petition on January 16. 2009, for relocation to
modification

10
 Circulated 12/30/2014 11:51 AM

ADD1 4
ADD14

Arizona . Both petitions {fini which was conducted in Morch
petItions were heard at the trial Mnrch and April,
April.

2009, before me.
2009.

In
ID preparation for
fOT the trial on tilese
these petitions, Father, through defendant Pepper.
Pepper,

filed "Petition for Psychological and Mental
Menial Examination of Parties" on
all September 16,

III it, he asked that the c:owt
2008. In court direct the parties to undergo a psychological evaluation
evuluation

Samuel , Ph.D .. Pepper fLIed a memorandum in support of his petition.
by Steven E. Samuel, pelilion.

Attorney Pepper represented Father at the October 8, 2008, hearing on the petition.
petition. Pepper

brought Doctor Samuel 10 the Ibe hearing over which JI
tile hearing. No one testified at the

presided. 1I gra[]ted
granted the petition for the evaluation hased
hiL'ied on the argumentS
argumc1lI5 of counsel.

On October 16. 2008 , Mother, aClingpro
16, 2008, Sf!, filed a motion for reconsideration of
aclingpro Sf,

the order granting DoclOr Samuel. After argument on this mOlioll,
grantiJlg the evaluation by Doctor motion. I

entered an order daied
dated November 13, 2008. granting reconsideration. In that
tha[ order,
order. I

rescinded the order of Oclober 8, 2008, so that Mother and Father were no longer

compelled to undergo an evaluation by Doctor Samuel. indicated that the October 8,
SamueL I indicUlcd

2008, order "is rescinded Without ptaintiff (Father) 10 renew hi
prejUdice to plaintiff
without prejudice mOlion for
hiss motiun

psychological evalualion
evaluation at the appropriate time during the trial in this case."

On January 28 , 2009, I entered an order granting defendant Pepper's petition to

wi
\vi thdra\\'
thdrawas as counsel for Father. According 10
to Paragroph
PnragrJ.ph 3 of the petition, Father had llot
not

paid Pepper for ser.'ices
services rendered and Father philosopllicaJ differences
FaLher and Pepper had philosophical

aboul
about the hand
band ling of the custody case. Pebruary 13, 2009, Attorney Stephen 1.
casco On February J.

Anderer entered an
un appearnnce
appearance on behalf of FOlher.
Father. Anomey Andcrer
Anderer represented father
Father

£II the custody trial in March and April,
al April. 2009. Mother was also represented by counsel at

the trial.

II
 Circulated 12/30/2014 11:51 AM

ADD15
ADD 15

I entered an order dated February 26, 2009, granting Father's pet ition, presented by

Attorney Anderer, for Doctor Nai>iasee's emire file,
Nast3see's coLin file:. On the same dale. I denied Motber's
Mother's

petition for discovery ofLhe
oflhe file of Doctor
Doclor Samuel. As I indicated in me foornoLC to tbal
the footnote tbat

"A t this point,
second February 26 order, "At point. according pillimiff
acconling to counsel (Anderer) for pll1iOliff

(Father), th ere is no expectation tblll
there that Doctor Samuel will be ca lled as a witness in this

was
case." There .....'3.5 no further petition filed by Falher
fUl1her pelition Fruher for an evaluation
cvoJualion by Doctor Samue l.

parties when IJ rescinded the order thai
As I made clear to the purties allowed the evaluation by
thol ollowed

Sarn uel,
Doctor Sam u c~ . Ii wou Doctor Samuel iiit
ld have considered again an evaluation by DOClor
would ifit

appeared at the trial that su ch an evaluation was appropriate. fn
e.ppcnrcd evenllhm
Tn the event thm such IIII

petilion had been suhmin
petition ed and in
submitted ifI deemed it appropriate, I would have adjourned the

custody trio.!
trial for Doctor
DOclor Samuel 's evaluatio
Samuel's evaluation.
ll, made provision fo r hi s testimony, and

entered an intedm th ings could be done
interim order until those things done..

In Count
Coun t TIl of his complaint,
complain!, Father bri ngs a count for legal malpractice against

Counl rv,
defentlnnl Pepper. In Count
defendrutt TV, Father alleges breach of contrncl
contrnct by Pepper.
Pepper.

As to legal mrupracticc, Father cclaims
malpractice, father laims that Pepper wns professionally
professionnUy negl igent by:

(a) not seeking
seeki ng discovery of Doctor Nastasee
Naslasee's
's work papers; (b)
( b) by not suggesti
suggcsli ng the

relaining
rew.ining of an expert for Father to rebut Nastasee 's
' s assessment of Father; (c) by unfairly
unf.."tirly

pressuring Father into a settlement agreement
a.greemenl in that Pepper was failing
ftl iling to properly

prepare for lrial
trial and by advising father tbat there would be an worse result if he did nOt
Father that

accepllhc
accept settlement;; (d) by allowing
the settlement al lowing Doctor Nastasee's
N:lStasee's report 10 be made pan
reporllo part of the

record (apparentl y, at the January 22, 2008, henring); (c)
2008. hearing); FaUler that no appeal
(e) by advising Father

cou ld be taken from the PF A order entered by Judge Reibman on March
could t I, 2008; (f) by
Marcb 11,2008;

compromising Doctor Samuel'
Samuel'ss qualificalions
qualifications (0 testify and Doctor Samuel '=s credibil
to lestify crt:dibility;
ity;

12
 Circulated 12/30/2014 11:51 AM

ADD16

and (g) by not
nOl calling Doctor Samuel as a0. witness
\\;tness in suppon
support of the pefition
ofthc petition to have Doctor

Samuel conduct an evaluation.
evaluation.

rv. Father
In Count TV. rather alleges Ilepper
nlleges that his retainer agreement with defendant Pepper

provided, in Parogr-Jph
ParogI"Jph 4, that "[wje
"[w]e (Pepper) ... can assure you that you will receive the

most conscicntiol15,
conscientious, diligent and competent legal services available." Father al leges that
alleges Ibat

Pepper violated this provision of the agreement by conunitling
commitling the negligence which is

in Count JII,
aJ lcg,cd ill
alleged HI, which ::Jllegatiolls ~hc preceding purugruph.
::tll egatiolls 1I have summarized in the p