J-A12035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ETHEL BANSLEY F/K/A ETHEL CRISALLI, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHN APPLETON, ESQ. AND NOGI,
APPLETON, WEINBERGER & WREN, P.C.,
Appellee No. 809 MDA 2014
Appeal from the Order entered April 9, 2014,
in the Court of Common Pleas of Lackawanna County,
Civil Division, at No(s): 12 CV 1996
BEFORE: BOWES, DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED MAY 04, 2015
Ethel Bansley, f/k/a Ethel Crisalli, (“Appellant”), appeals from the trial
court’s order granting summary judgment in favor of her former counsel,
John Appleton, Esquire (“Attorney”), and his firm, Nogi, Appleton,
Weinberger & Wren, P.C. (“Attorneys”). We affirm.
A detailed recitation of the procedural history of this case, before both
the trial court and this Court, is warranted. The trial court explained:
In accordance with the Appellant’s complaint, the [instant
action] arises from an action in Wayne County, Sum[n]er v.
Hartley (06 CV 509) (hereinafter referred to as the "underlying
action"). [Appellant’s] Amended Complaint at ¶ 5. This
underlying action involves an Action in Ejectment and
Declaratory Judgment and a Petition for Contempt. Id. In
August 2006, [one of the] Plaintiff[s] in the underlying action,
Lisa Sum[n]er, sought an order of ejectment against [Appellant]
[and] a Donald Bansley, and a Elizabeth Hartley. [The]
Defendants in the underlying action, which included Appellant in
this matter, alleged use of Little Beach Pond, and the Plaintiffs in
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the underlying action sought to prohibit the use of any waters of
Little Beach Pond by the Appellant. Id. at ¶ 6. On January 13,
2009, the Court of Common Pleas issued its Order[, which was
docketed on January 14, 2009,] granting the Appellant the right
to use the waters of Little Beach Pond only to the extent of the
waters above the pond-bed owned by the Appellant, in accord
with her deed. Id. at ¶ 7. [Specifically, the January 14, 2009
order included findings of fact that the “boundary line” of
Appellant’s property “includes the southerly shore of the Pond,”
that “the Pond has expanded approximately ten (10) to twelve
(12) feet into the southern boundary,” and that Appellant
“placed a dock on the portion of the Pond which has expanded
the ten (10) to twelve (12) and which is within their property
line.” Order, 1/14/09, at 1-2.] On September 18, 2009, the
Plaintiffs in the underlying action filed a Petition for Contempt
claiming the Appellant, and her guests, violated the Order issued
by the Court by using the waters beyond the boundary line
previously instituted by the court, via order. Id. at ¶ 8. In
response, the Appellant retained [Attorneys] in the underlying
action, … to represent her in the Contempt proceedings.
[Attorney’s] Transcript, pg. 68, lns. 8-24, pg. 69 lns. 1-12, pg.
70 lns. 2-3; [Attorneys’] Exhibit B Attached to Motion for
Summary Judgment. During the hearing on the Petition for
Contempt, [Attorney] stipulated that Appellant violated the
Order by using the waters above the pond-bed beyond the scope
of their boundary line to the mid-point, after being presented
with a picture showing the Appellant doing such. [Appellant’s]
Amended Complaint at ¶ 9. Appellant was therefore found in
contempt of the previously issued court order and therefore was
ordered to pay approximately $13,000.00. Id. at ¶ 10; See Also
[Attorney’s] Exhibit D Attached to Motion for Summary
Judgment.
Trial Court Opinion, 8/22/14, at 3-4.
In affirming the trial court’s March 31, 2010 contempt order, this Court
observed:
[] Following a non-jury trial, the trial court issued an
opinion and order on January 14, 2009. The trial court
discounted [the underlying plaintiffs’] position that [Appellant
and her co-defendants] did not have the right to use any portion
of Little Beach Pond, but it specifically ruled that [Appellant and
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her co-defendants] did not have the right to use the entire
waterway, as they had requested. The trial court noted that
originally [Appellant’s] property abutted the pond, but that the
pond had expanded approximately ten to twelve feet onto their
land. The trial court ruled that [Appellant and her co-
defendants] had the right to use the portion of the pond that had
expanded onto and that was above their property line, as
described in their deeds. Thus, the January 14, 2009 order
provides, “The Defendants’ Counterclaim for free and
uninterrupted use of the waters of Little Beach Pond is GRANTED
to the extent and only to the extent of the use of those waters
above the pond-bed owned by [Appellants] in accord with their
Deed.” Opinion and Order, 1/14/09, at 3. An appeal from that
order was discontinued.
***
[Appellant and her co-defendants] challenge the validity of
the January 14, 2009 order and assert that they have the right
to use Little Beach Pond to its midpoint under “precedential case
law from the Pennsylvania Supreme Court[.]” Appellant’s Brief
at 8. However, we are not permitted to examine the propriety of
the January 14, 2009 order because [Appellant and her co-
defendants] failed to appeal from that adjudication. Under 42
Pa.C.S. § 5505, an order becomes final and can no longer be
modified thirty days after its entry, unless an appeal has been
filed. []
On January 14, 2009, the trial court herein entered a final
order in this ejectment action and adjudicated the countervailing
claims of the parties regarding [Appellant and her co-
defendants’] right to use Little Beach Pond. That order provided
that [Appellant and her co-defendants] can use only the portion
of Little Beach Pond that was above their property line, and the
adjudication indicated that the property line was ten to twelve
feet into the pond. The appeal from the January 14, 2009 order
was discontinued on March 12, 2009, and was final when these
contempt proceedings were initiated in September 2009.
[Appellant and her co-defendants’] attempt to attack the validity
of the adjudication by reference to Supreme Court precedent is
unavailing as their position should have been raised in a direct
appeal from the January 14, 2009 decision. []
***
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[] The order, contrary to [Appellant and her co-
defendants’] position, was clear and precise. It stated
unequivocally that they could not utilize Little Beach Pond except
the portion that was within their property line, which is
delineated in the adjudication as being between ten to twelve
feet into the pond. Their acts were volitional, as established by
the photographs and testimony at the hearing.
***
[] [Appellant and her co-defendants] knew that the trial
court concluded that their property line was between ten to
twelve feet into the pond, and they admittedly used the
waterway beyond that point. Hence, we conclude that the
record supports the finding that [Appellant and her co-
defendants’] violation of the order was wrongful despite the fact
that [they] were not prosecuted for criminal trespass. We
therefore cannot discern an abuse of discretion by the trial court
in holding them in contempt and awarding [the underlying
plaintiffs] attorneys’ fees.
Sumner, et al. v. Hartley, et al., 15 A.3d 527 (Pa. Super. 2010)
(unpublished memorandum) at 2; 4-5; 8 (footnote omitted); appeal denied
20 A.3d 1212 (Pa. 2011).
With regard to the instant action, the trial court explained:
This claim was commenced by [Appellant] on March 27,
2012 by filing a Praecipe for Writ of Summons. After seeking,
and then receiving, an extension for a filing of her complaint, the
Appellant filed the complaint on or about June 21, 2012. The
Appellant alleged in the complaint there was professional
negligence, breach of contract, breach of fiduciary duty, and
intentional infliction of emotional distress (hereinafter "IIED") by
[Attorneys]. Thereafter, the Appellant filed a Certificate of Merit
as to [Attorneys], which was received by them on July 12, 2012.
Pursuant to, [Attorneys] filed preliminary objections, a brief in
support thereof, and a praecipe for assignment challenging the
legal and factual sufficiency of the Appellant’s complaint on July
23, 2012. Appellant’s counsel then contacted [Attorneys’]
counsel indicating his intention to file a motion with the court
seeking leave to withdraw as Appellant’s counsel. On August 28,
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2012, Appellant's counsel filed his Motion for Leave to Withdraw
as counsel asserting, inter alia, that “(1) counsel can no longer
prosecute this matter in good faith; (2) counsel no longer
believes the necessary proofs underlying required can be
discovered or otherwise obtained towards this matter's success;
. . ..” (Exhibit F of [Attorneys’] Motion for Summary Judgment).
Around the same time of this aforementioned filing, the
Appellant’s counsel also filed Appellant’s First Amended
Complaint in what was perceived by [Attorneys] in this case as
being an effort to preserve the Appellant’s “questionable claim”
in response to the Preliminary Objections filed by [Attorneys].
Thereafter, on October 18, 2012, Senior Judge Harold Thompson
entered an order denying Appellant’s Counsel’s Motion to
Withdraw. Then, on October 26, 2012, [Attorneys] filed
Preliminary Objections to the Amended Complaint together with
a Brief in Support of the Preliminary Objections and a Praecipe
for Assignment of Disposition of the Preliminary Objections. On
November 14, 2012, Appellant filed Preliminary Objections to
[Attorneys’] Preliminary Objections. Thereafter, on November
26, 2012 [Attorneys] filed a Brief in Opposition to Appellant’s
Preliminary Objections to [Attorneys’] Preliminary Objections to
Appellant’s First Amended Complaint. Then, on December 19,
2012, Appellant filed a Response in Opposition to [Attorneys’]
Preliminary Objections to [Appellant’s] First Amended Complaint.
On January 23, 2013, this Court issued an Order sustaining in
part and overruling in part the Preliminary Objections. Then, on
February 8, 2013, [Attorneys] filed an Answer with New Matter
to Appellant’s Amended complaint. Thereafter, on February 12,
2013, Appellant filed a Reply to New Matter. [Attorneys]
asserted at the time of the hearing on the Motion for Summary
Judgment (hereinafter "MFSJ") in this matter that discovery was
concluded, and as such their MFSJ was timely and ripe for
disposition. This court found such to be true, and heard
argument, as well as reviewed the file in full.
Trial Court Opinion, 8/22/14, at 1-2.
On April 9, 2014, the trial court granted summary judgment in favor
of Attorneys. On April 30, 2014, Appellant filed her notice of appeal.
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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On appeal, Appellant queries:
Whether the Court of Common Pleas erred in holding [Appellant]
did not state triable claims for: (a) legal malpractice negligence;
(b) legal malpractice breach of contract; (c) breach of fiduciary
duty; and (d) entitlement to damages – otherwise requiring the
denial of summary judgment?
Appellant’s Brief at 8.
In summarizing her argument, Appellant asserts:
[Appellant] sufficiently adduced evidence to preclude the
entry of summary judgment which was necessarily predicated on
the incorrect holdings that [Appellant] was rightfully held in
contempt in the underlying action notwithstanding [Attorney’s]
unilateral preclusion of her testimony at the contempt
proceedings and further, [Attorney’s] unilateral stipulation to
[Appellant’s] violation of the ejectment order giving rise to the
contempt proceedings — all despite his conflict of interest
underlying.
[Appellant] was not in violation of the order giving rise to
the contempt proceedings as would have been elucidated to the
contempt court but for [Attorney’s] aforesaid misconduct.
Appellant’s Brief at 12.
In reviewing Appellant’s challenge to the entry of summary judgment,
we recognize:
Our scope of review … [of summary judgment orders] … is
plenary. We apply the same standard as the trial court,
reviewing all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record in
the light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party. Only where there is no
genuine issue as to any material fact and it is clear that the
moving party is entitled to judgment as a matter of law will
summary judgment be entered.
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Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of his cause of
action. Summary judgment is proper if, after the completion of
discovery relevant to the motion, including the production of
expert reports, an adverse party who will bear the burden of
proof at trial has failed to produce evidence of facts essential to
the cause of action or defense which in a jury trial would require
the issues to be submitted to a jury. Thus a record that
supports summary judgment will either (1) show the material
facts are undisputed or (2) contain insufficient evidence of facts
to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the jury. Upon
appellate review we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions. The
appellate Court may disturb the trial court’s order only upon an
error of law or an abuse of discretion.
Alexander v. City of Meadville, 61 A.3d 218, 227 (Pa. Super. 2012)
(internal citation omitted).
Relative to legal malpractice:
‘An action for legal malpractice may be brought in either contract
or tort.’ Garcia v. Community Legal Servs. Corp., 362 Pa.Super.
484, 524 A.2d 980, 982 (1987). The elements of a legal
malpractice action, sounding in negligence, include: (1)
employment of the attorney or other basis for a duty; (2) failure
of the attorney to exercise ordinary skill and knowledge; and (3)
that such failure was the proximate cause of the harm to the
plaintiff. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108, 112
(1993). With regard to a breach of contract claim, “an attorney
who agrees for a fee to represent a client is by implication
agreeing to provide that client with professional services
consistent with those expected of the profession at large.” Id. at
115. See also Gorski v. Smith, 812 A.2d 683, 694 (Pa. Super.
2002) (citing Bailey and noting that “when an attorney enters
into a contract to provide legal services, there automatically
arises a contractual duty on the part of the attorney to render
those legal services in a manner that comports with the
profession at large”).
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Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 570-571 (Pa. Super.
2007).
Here, the trial court rebutted Appellant’s claims of error at length:
In the case at hand Appellant could not, and did not,
present the [required evidence] to this court to withstand a
MFSJ. The Appellant was given a clear order from the court, in
the underlying action, on the parameters in which the water in
and around their property could be used. The Appellant not only
did not comply with the order, but there was clear photo
documentation displaying the Appellant in their non-compliance.
Therefore, [Attorney’s] stipulating to the violation, when
presented with such a clear and undisputable pieces of evidence,
did exercise ordinary skill and knowledge in his profession.
Furthermore, since there was no negligence on the part of
[Attorney] in making the aforementioned stipulation, then the
harm the underlying case's decision had on the Appellant was by
no means the proximate cause of anything done by [Attorney].
Instead, the Appellant’s actions were the proximate cause of the
aforementioned damages that [Appellant] suffered.
Lastly, there is also the “case within the case” doct[rine] to
consider [in legal malpractice actions]. In this matter, even if
this could get past the standard for legal malpractice/negligence
in this state, it would not be able to sustain the “case within a
case doctrine.” The Appellant disobeyed a court order, and such
was encapsulated in photographic evidence. Therefore, in a
contempt proceeding, there is no merit to the allegation that the
Appellant’s case would have triumphed by a preponderance of
the evidence, with photographic evidence of the Appellant in
violation, but for the [Attorney’s] actions.
***
The Appellant in this matter cannot prove there was legal
malpractice/negligence by [Attorney], and therefore cannot
prove there was a breach of a duty imposed by the contract
between the parties. [Attorney’s] actions in this matter were
within his knowledge and discretion in his practice as an
attorney, and in no way rise to a level where a breach of a duty
to the Appellant occurred. Furthermore, the Appellant cannot
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prove the damages sustained in the underlying case were a
result of this alleged breach within a reasonable certainty, since
they cannot prove there was a breach at all.
It has been established that “the elements the plaintiff
must prove in claim of breach of fiduciary duty are: ‘(1) that the
defendant negligently or intentionally failed to act in good
faith and solely for the benefit of plaintiff in all matters
for which he or she was employed; (2) that the plaintiff
suffered injury; and (3) that the agent's failure to act solely for
the plaintiffs benefit ... was a real factor in bring[ing] about
plaintiffs injuries [.]’” McDermott v. Party City Corp., 11 F.
Supp. 2d 612, 626 (E.D. Pa. 1998) citing Pa. S.S.J.I. § 4.16
(1991) (emphasis added). Furthermore, in Pennsylvania
“common law imposes on attorneys the status of fiduciaries vis á
vis their clients; that is, attorneys are bound, at law, to perform
their fiduciary duties properly. Failure to so perform gives rise to
a cause of action. It is ‘actionable’ threatened failure to so
perform gives rise to a request for injunctive relief to prevent the
breach of duty." Maritrans CP Inc. v. Pepper, Hamilton &
Scheetz, 602 A.2d 1277, 1283 (Pa. 1992).
In this matter the Appellant cannot show that [Attorney]
acted negligently or in bad faith, and therefore cannot prove
there was a breach of a fiduciary duty. In the aforementioned
analysis, as to if there was legal malpractice/negligence in this
matter, the court will rely on the same argument as stated
previously. Thus, since no legal malpractice/negligence can be
proven on the part of [Attorney], a breach of fiduciary duty is
not present. Therefore, even with [Attorney] as an attorney
with a status of a fiduciary via á vis to the Appellant, there is no
underlying showing of negligence and/or bad faith on the part of
[Attorney], and therefore there was not a prima facie case for
this cause of action presented to this court.
In [Appellant’s] Amended Complaint, [Appellant] alleges
[she] suffered “great pain and agony, humiliation,
embarrassment, and emotional distress.” [Appellant’s] Amended
Complaint ¶ 13.
Intentional Infliction of Emotional Distress (hereinafter,
"IIED") requires a Plaintiff to show that the Defendant/Tortfeasor
is “[o]ne who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to
[the Plaintiff; and therefore] is subject to liability for such
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emotional distress . . . .” Taylor v. Albert Einstein Med. Ctr., 562
Pa. 176, 180, 754 A.2d 650, 652 (2000) citing Restatement
(Second) of Torts § 46(2) [(emphasis added)]. Although
Pennsylvania common law has recognized IIED as a cause of
action it is only granted when “the emotional distress has
created medically-documented physical symptoms.”
Armstrong v. Paoli Mem’l Hosp., 633 A.2d 605, 608 (Pa. Super.
1993) [(emphasis added)]. Therefore, in absence of such
“medically-documented physical symptoms” or injuries, the
Plaintiff cannot recover.
The presentation of [an IIED] cause of action in this matter
is totally unfounded, and frivolous. In this section, the court will
rely in part upon the arguments previously presented in this
memorandum to support this argument against a case of IIED
sustaining a MFSJ in this matter. The Appellant, by no manner
could prove, or did provide, evidence to this court that
[Attorney] went about “extreme or outrageous” conduct to
“intentionally harm” the Appellant. This court found, by the
argument and evidence provided, [Attorneys] went about their
job with the requisite knowledge and experience required in the
legal profession. At no time did anything [Attorneys] did in their
representation of the Appellant illustrate even a minutia of
outrageous or extreme conduct made to intentionally hurt the
Appellant. Instead, [Attorneys’] actions were professional, and
typical of the profession. Furthermore, the Appellant did not
provide to this court any documentation of the required
medically-documented physical symptoms necessary to present
a claim of IIED in Pennsylvania. Therefore, even if IIED was
present in this matter, [Appellant] could not recover absent of
such proof.
Trial Court Opinion, 8/22/14, at 7-11.
Our review of the record comports with the trial court’s reasoning.
Appellant’s own deposition testimony supports Attorney’s entry into the
stipulation that Appellant used Little Beach Pond beyond the 10-12 feet
boundary set forth in the January 14, 2009 order, as well as Attorney’s
decision to forego Appellant’s testimony at the hearing, and to focus instead
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on arguing that Appellant’s actions were not volitional. During her
deposition, Appellant admitted that she entered Little Beach Pond
“subsequent” to the January 14, 2009 order. N.T., 3/11/13, at 62.
Appellant excused her entry and maintained it was precipitated by the
actions of the Sumner plaintiffs. Appellant testified, “I used the pond after I
had seen them in their boat on my shoreline doing something. I went in my
boat with one of my friends to photograph my shoreline and to try to
determine what they were doing and that’s when I found that they had put
stakes on my land and I took the stakes out.” Id. at 62-63. Appellant
further admitted she entered the pond “65 feet [to] 70 feet[.]” Id. at 63.
Appellant’s entry clearly exceeded the 10-12 feet boundary. Appellant
additionally testified she allowed a friend to enter Little Beach Pond. Id. at
67. Appellant acknowledged that the Sumner plaintiffs filed a contempt
action following these entries into Little Beach Pond. Id. at 69. Accordingly,
Appellant’s testimony shows that Attorney did not err in stipulating to
Appellant’s violation of the January 14, 2009 order, and foregoing
Appellant’s testimony at the hearing.
Appellant erroneously focuses on the stipulation as the basis for the
trial court’s finding that she was in contempt of the January 14, 2009 order.
Appellant disregards that our Court previously determined that the trial court
did not abuse its discretion in finding that Appellant was in contempt of the
January 14, 2009 order, because Appellant’s acts of trespass “were
volitional, as established by the photographs and testimony at the
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hearing.” Sumner, supra, at 7 (emphasis supplied). In addition to the
stipulation, we cited the following evidence:
On September 16, 2009, [the underlying plaintiffs] filed a
petition for contempt, alleging that [Appellant] continued to use
the entirety of Little Beach Pond in violation of the January 14,
2009 order. At the hearing on the matter, Ms. Hartley[,
Appellant’s sister,] acknowledged receiving a copy of the January
14, 2009 order that prohibited her from using any portion of the
pond that was not above her property and that she was aware
that the trial court had ruled that the pond in question had
expanded approximately ten to twelve feet onto her property.
Then she admitted that she and her guests had been “out in the
pond beyond the 12 feet, yes we have.” N.T. Hearing on
Contempt, 2/4/10, at 7. [The underlying plaintiffs] then
presented witnesses who testified that the other two defendants
also had violated the order. Finally, the court was presented
with a stipulation entered by [Appellant and her co-defendants]
that they had utilized the pond, in violation of the order, to the
midpoint of that waterway. Id. at 76. [The underlying
plaintiffs] also introduced photographic evidence of [Appellant
and her co-defendants’] violation of the trial court’s decree.
Based upon this evidence, the trial court entered an order
finding [Appellant and her co-defendants] in contempt and
ordering them to pay [the underlying plaintiffs’] attorneys’ fees.
Sumner, supra, at 3.
We further rejected Appellant’s arguments regarding her lack of
wrongful intent:
[] The order, contrary to [Appellant and her co-
defendants’] position, was clear and precise. It stated
unequivocally that they could not utilize Little Beach Pond except
the portion that was within their property line, which is
delineated in the adjudication as being between ten to twelve
feet into the pond. Their acts were volitional, as established by
the photographs and testimony at the hearing.
[Appellant and her co-defendants’] arguments on appeal
relate to whether they acted with wrongful intent. First, they
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posit that the January 14, 2009 order was legally incorrect and,
thus, their intent in violating the order was not wrongful.
[Appellant’s] Brief at 11, 12. [They] maintain that the order in
question was contrary to law and that they have a legal right to
use Little Beach Pond to its midpoint under binding Supreme
Court precedent. We hold, however, that this position should
have been raised in a timely appeal from the January 14, 2009
order. [Appellant and her co-defendants’] averments are not a
valid defense to their disregard of a final and binding
adjudication when it was violated.
[Appellant and her co-defendants] also claim that their
disregard of the order was not wrongful because when police
were called about trespass incidents, they “determined that no
trespass by [Appellant and her co-defendants] occurred and
instructed … [them] to enjoy the use of the pond.” [Appellant’s]
Brief at 13. The first police report indicated that the police read
the January 14, 2009 order, could not determine where the
property line under the pond was located, and decided not to
prosecute [Appellant and her co-defendants] for trespass. The
second police report noted that, in accordance with the order,
[Appellant and her co-defendants] did have access to the lake on
their side of the waterway and thus, [Appellant and her co-
defendants] could use the lake.
Nothing said by police should have given [Appellant and
her co-defendants] a reasonable belief that they were permitted
to violate the order in question. The reports indicate nothing
more than police had been called to file criminal trespass
charges and were unable to determine whether a criminal
trespass occurred. Their determination was not based upon a
conclusion that [Appellant and her co-defendant] did not violate
the order. Police merely knew that [Appellant and her co-
defendants] were entitled to use some portion of the pond and
could not determine from looking at the pond where [their]
property line was located. The state troopers were there to
investigate whether there was a commission of the crime of
criminal trespass, not to interpret an order.
However, [Appellant and her co-defendants] knew that the
trial court concluded that their property line was between ten to
twelve feet into the pond, and they admittedly used the
waterway beyond that point. Hence, we conclude that the
record supports the finding that [Appellant and her co-
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defendants’] violation of the order was wrongful despite the fact
that [they] were not prosecuted for criminal trespass.
Sumner, supra, at 6-8.
Thus, we find that the record belies Appellant’s contention that
Attorney erred in stipulating that she entered Little Beach Pond beyond the
10-12 feet boundary. Indeed, as the trial court observed, the Sumner
plaintiffs produced photographic evidence of Appellant’s entry into Little
Beach Pond beyond the 10-12 feet boundary. The record refutes Appellant’s
assertion that the trial court would not have found Appellant in contempt of
the January 14, 2009 order but for Attorney’s stipulation.
Further, while Ms. Hartley testified that the stipulation overstated the
extent of Appellant’s entry into Little Beach Pond by incorrectly indicating
Appellant entered to the midpoint of the waterway, Ms. Hartley nonetheless
testified that “to be precise … we have [been] out in the pond beyond the 12
feet, yes we have.” N.T., 2/4/10, at 7. Ms. Hartley’s testimony did not
contradict the stipulation that Appellant entered beyond the 10-12 feet
boundary set forth by the January 14, 2009 order. Although Appellant
disavows the stipulation, she failed to express any disagreement at the time
of its entry. N.T., 11/23/09, at 2; 4-5; 10; 12; 15. Indeed, Appellant did
not oppose the stipulation even when the trial court addressed the parties
and entreated them to “come to an agreement.” Id. at 18. We thus find
that Appellant ratified the stipulation by failing to promptly repudiate it.
We have observed:
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In Yarnall v. Yorkshire Worsted Mills, 370 Pa. 93, 87 A.2d 192
(1952), our Supreme Court determined that “[a] client ratifies
his attorney’s act if he does not repudiate it promptly upon
receiving knowledge that the attorney has exceeded his
authority.” Id. at 96, 87 A.2d at 193.
“[A] client may ratify his attorney's acts; and ‘an
affirmance of an unauthorized transaction may be inferred
from a failure to repudiate it’: Restatement, Agency, § 94.
Indeed, a client makes his attorney's act his own if he does
not disavow it the first moment he receives knowledge
that his attorney has transcended his authority.”
Id. at 96, 87 A.2d at 193, quoting Baumgartner v. Whinney, 156
Pa.Super. 167, 39 A.2d 738, 740 (1944).
Piluso v. Cohen, 764 A.2d 549, 550-551 (Pa. Super. 2000) (appellant
ratified her counsel’s action of settling with a defendant when she failed to
promptly repudiate the settlement and only objected after the trial
concluded as to remaining defendants); see also Step Plan Services, Inc.
v. Koresko, 12 A.3d 401, 421 n.9 (Pa. Super. 2010).
Our review of the record additionally refutes Appellant’s assertion that
“[Attorney’s] impermissible joint representation precluded his ability to
rightfully challenge [Ms.] Hartley’s thus uncontested perhaps adverse
testimony,” concerning Appellant’s entry into Little Beach Pond. Appellant’s
Brief at 19. Appellant’s claim discounts that the portion of Ms. Hartley’s
testimony which Appellant challenges was adduced when Ms. Hartley was
called to testify by the Sumner Plaintiffs during their case-in-chief as if on
cross-examination. N.T., 2/4/10, at 3-9. Appellant additionally discounts
that Ms. Hartley repeated her testimony when she was recalled to the stand
“by the Court,” and not by Attorney. Id. at 43-48. Appellant further
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disregards that when Attorney finally examined Ms. Hartley directly during
her third turn on the stand, Attorney only adduced testimony that was
favorable to Appellant and her co-defendants’ joint position that their entries
into Little Beach Pond were not wrongfully intended to violate the January
14, 2009 order. Id. at 49-56.
Likewise, Appellant’s claim regarding damages is meritless. We
discern no error by the trial court in determining that Appellant’s contempt
of the January 14, 2009 order, rather than Attorney’s actions, caused
Appellant’s damages. See Trial Court Opinion, 8/22/14, at 7; see also
Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182, 1184 (Pa. Super.
2000) (appellant required to prove actual loss due to attorney’s breach of
duty of care).
In sum, based on our review of the record and applicable
jurisprudence, we find that the trial court did not err in granting summary
judgment in favor of Attorneys.
Order affirmed.
Judge Bowes joins the Memorandum.
Judge Donohue concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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