J-A25006-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
THERESE M. GREIM, NICOLE GREIM, A : IN THE SUPERIOR COURT OF
MINOR, BY THERESE M. GREIM, : PENNSYLVANIA
GUARDIAN, AND EVAN GREIM, :
:
Appellants :
:
v. :
:
MARY V.Z. WACHTERHAUSER AND :
JESSICA SIROLLY, :
:
Appellees : No. 479 EDA 2015
Appeal from the Order January 28, 2015,
Court of Common Pleas, Delaware County,
Civil Division at No. 2013-2893
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 20, 2015
Appellants, Therese M. Greim (“Mother”), Evan Greim, and Nicole
Greim, a minor, by Mother (the latter two appellants referred to collectively
as “the children”), appeal from the January 28, 2015 order entered by the
Delaware County Court of Common Pleas granting the motion for a directed
verdict requested by Mary V.Z. Wachterhauser (“Attorney Wachterhauser”)
and Jessica Sirolly (“Attorney Sirolly”) (referred to collectively as “counsel”)
in this legal malpractice action. Upon review, we affirm.
The trial court summarized the relevant factual and procedural
histories of the case as follows:
Mother and Robert Greim (“Father”) were married
in 1994. In 1998, Father obtained a term life
insurance policy with a death benefit of three
*Former Justice specially assigned to the Superior Court.
J-A25006-15
hundred fifty thousand dollars ($350,000.00). The
parties had two (2) children during the marriage who
were born in 1995 and 1999, respectively. Mother
and Father separated in 2008 and Mother [retained
counsel, who] filed for divorce [on her behalf] on
February 2, 2009. In 2010, Father’s life insurance
policy lapsed due to Father’s failure to pay premiums
and Mother received notification of the lapse by
letter dated August 31, 2010. The August 31, 2010
letter included notice that the policy would not be
reinstated absent proof of Father’s insurability.
During an equitable distribution hearing on October
10, 2010, Mother and Father entered into a property
settlement agreement [“PSA”]. As part of the [PSA],
Father agreed to reinstate and/or obtain a life
insurance policy with a death benefit of three
hundred fifty thousand dollars ($350,000.00), name
the children as beneficiaries of the policy and
maintain such as long as was financially feasible. In
the event Father experienced a change of financial
circumstances, Father reserved the right to maintain
a policy as low as fifty thousand dollars
($50,000.00). [Counsel’s] representation of
Appellants terminated no later than February 17,
2011. Father died on April 11, 2011 without a life
insurance policy.
Appellants initiated the instant action by [w]rit of
[s]ummons on April 1, 2013. In their [c]omplaint
filed on May 7, 2013, they allege that [counsel] were
negligent in their representation of Appellants in an
equitable distribution action between Mother and
Father. Appellants allege that negligence caused the
children to be left without the benefit of the life
insurance policy that Father agreed to reinstate
and/or obtain for the children’s benefit. Appellants
also allege that [counsel’s] negligence caused Mother
to incur unexpected financial costs related to the
children’s ongoing health, education and welfare.
[Counsel] filed preliminary objections on August
12, 2013 arguing, inter alia, that Mother should be
dismissed as a plaintiff because Appellants failed to
-2-
J-A25006-15
allege that Mother had any interest in the proceeds
of the life insurance policy that was to have the
children as beneficiaries and, therefore, failed to
establish that Mother suffered or was entitled to
recover damages. The Honorable Christine Fizzano-
Cannon entered an [o]rder on October 16, 2013
dismissing Mother as a plaintiff. Subsequently, on
July 14, 2014, Appellants filed a [p]etition for [l]eave
to [f]ile [a]mended [c]omplaint seeking to add
Mother back in as a plaintiff. Appellants allege that
on July 2, 2014, following a subpoena issued on May
23, 2014, Mother discovered she was the beneficiary
of Father’s prior insurance policy at the time that it
lapsed in 2010. Appellants allege further that the
lapse of the policy was a result of further legal
malpractice by [counsel]. On August 4, 2014,
[counsel] filed their [o]pposition to [a]ppellants’
[p]etition claiming, inter, alia, that any individual
claim for legal malpractice by Mother is barred by
the applicable statute of limitations. An [o]rder was
entered on August 13, 2014 denying Appellants’
[p]etition.
Following the close of evidence at trial on the
children’s claims alone, [counsel] made an oral
motion for directed verdict. Based upon the issues
raised by [counsel] and upon consideration of all the
evidence and testimony offered at trial, reviewed in a
light most favorable to Appellants, an [o]rder was
entered on September 17, 2014 directing verdict in
favor of [counsel]. Appellants filed their [m]otion for
[p]ost –[t]rial [r]elief on September 29, 2014, which
was denied by [o]rder dated January 28, 2015. A
[p]raecipe to [e]nter [j]udgment on [the d]irected
[v]erdict was filed on February 4, 2015 and,
subsequently, final [j]udgment was entered in favor
of [counsel].
Trial Court Opinion, 4/13/15, at 2-4 (record citations omitted).
-3-
J-A25006-15
On appeal, the children1 raise one issue for our review:
Did the lower court commit legal error and/or abuse
its discretion[] by having directed a verdict in favor
of [counsel] as to the attorney malpractice claim of
[the children] against [counsel] due to the absence
of a prior agreement by [Father] to reinstate or
replace the $350,000 life insurance policy[] naming
the [c]hildren as beneficiaries[] as required by the
terms of the October 13, 2010 [PSA] between
[Mother] and [Father] and/or the purported
preclusive effect of the Divorce Code applicable to
equitable distribution cases?
Appellants’ Brief at 2.
We begin by stating our well-settled standard and scope of review of a
trial court’s grant of a motion for a directed verdict:
In reviewing a trial court’s decision whether or not
to grant judgment in favor of one of the parties, we
must consider the evidence, together with all
favorable inferences drawn therefrom, in the light
most favorable to the verdict winner. … We will
reverse a trial court’s grant or denial of a directed
verdict [] only when we find an abuse of discretion
or an error of law that controlled the outcome of the
case. Further, the standard of review for an appellate
court is the same as that for a trial court.
There are two bases upon which a directed verdict
[] can be entered; one, the movant is entitled to
judgment as a matter of law and/or two, the
evidence is such that no two reasonable minds could
disagree that the outcome should have been
rendered in favor of the movant. With the first, the
court reviews the record and concludes that, even
with all factual inferences decided adverse to the
1
The issue raised on appeal pertains solely to the trial court’s issuance of a
directed verdict in favor of counsel. As Mother was not a party at trial, the
issue is raised solely by the children.
-4-
J-A25006-15
movant, the law nonetheless requires a verdict in his
favor. Whereas with the second, the court reviews
the evidentiary record and concludes that the
evidence was such that a verdict for the movant was
beyond peradventure.
Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012)
(citation omitted).
To prove a claim of legal malpractice, the plaintiff has the burden of
proving three elements: “1) employment of the attorney or other basis for a
duty; 2) the failure of the attorney to exercise ordinary skill and knowledge;
and 3) that such negligence was the proximate cause of damage to the
plaintiff.” Nelson v. Heslin, 806 A.2d 873, 876 (Pa. Super. 2002) (citation
omitted). “An essential element to this cause of action is proof of actual loss
rather than a breach of a professional duty causing only nominal damages,
speculative harm or threat of future harm.” Id. (citation omitted). Further,
[o]ur Supreme Court has held that “a legal
malpractice action in Pennsylvania requires the
plaintiff to prove that [s]he had a viable cause of
action against the party [s]he wished to sue in the
underlying case and that the attorney [s]he hired
was negligent in prosecuting or defending that
underlying case (often referred to as proving a ‘case
within a case’).” Kituskie v. Corbman,[] 714 A.2d
1027, 1030 ([Pa.] 1998). …“It is only after the
plaintiff proves [s]he would have recovered a
judgment in the underlying action that [she] can
then proceed with proof that the attorney [s]he
engaged to prosecute ... the underlying action was
negligent in the handling of the underlying action
and that negligence was the proximate cause of the
plaintiff's loss since it prevented [her] from being
properly compensated for [her] loss.” Id.
-5-
J-A25006-15
Sokolsky v. Eidelman, 93 A.3d 858, 862-63 (Pa. Super. 2014).
The children assert that the trial court erred by taking the case away
from the jury and directing a verdict in favor of counsel. Appellants’ Brief at
27-28. According to the children, they presented evidence through the
testimony of Mother and the children’s expert witness, Attorney Samuel C.
Totaro, that (1) there was an implied attorney-client relationship between
counsel and the children2; (2) counsel negligently failed to investigate
whether Father was insurable; and (3) this negligence was the proximate
cause of the children’s damages – the loss of the insurance policy. Id. at
16, 22, 24-25. The children state that there is no basis for finding that their
damages were speculative – only the fact of damages must be proven, not
the amount. Id. at 24 (citing Rizzo v. Haines, 555 A.2d 58, 69 (Pa.
1989)). The children further argue that the PSA must be evaluated as a
contract, to which the children were intended third party beneficiaries, and
that they would have successfully been able to sue Father for breach of
contract. Id. at 20-22.
2
“Absent an express contract, an implied attorney-client relationship will be
found if 1) the purported client sought advice or assistance from the
attorney; 2) the advice sought was within the attorney's professional
competence; 3) the attorney expressly or impliedly agreed to render such
assistance; and 4) it is reasonable for the putative client to believe the
attorney was representing him.” Cost v. Cost, 677 A.2d 1250, 1254 (Pa.
Super. 1996) (quoting Atkinson v. Haug, 622 A.2d 983, 986 (Pa. Super.
1993)) (internal citation omitted).
-6-
J-A25006-15
At the close of trial, when granting counsel’s motion for a directed
verdict, the trial court stated the following:
I find that the facts are clear and there’s no room
for doubt that the claim of the [d]efense [sic] should
be removed [from] the jury’s consideration. I’ve
considered the testimony of the [p]laintiff[s] and the
evidence presented[] [a]nd have arrived at [the
conclusion that] even if there was an attorney[-
]client relationship between the attorneys, the
[d]efendants, and the children, and even if there was
negligence, I haven’t seen where the [children have]
sufficiently proved that any negligence was the
[]proximate cause of any actual damages. And my
reasoning is because [] the children[] had no
underlying cause of action against [F]ather for any
proceeds of any life insurance policy prior to
[M]other entering into a [PSA].
N.T., 9/17/14, at 26-27. In its written opinion pursuant to Pa.R.A.P.
1925(a), the trial court further explains that the life insurance provision was
part of the equitable distribution order, and pursuant to the Divorce Code, a
court’s “authority is limited to directing that existing policies be maintained
with existing beneficiary designations and the discretion to require the
purchase of a life insurance policy to protect the interests of a party.” Trial
Court Opinion, 4/13/15, at 7 (citing 23 Pa.C.S.A. § 3502(d)). The children
lacked standing to participate in the equitable distribution hearing or to
challenge the resultant order. Id. at 7-8. The trial court further found that
even if the children had a viable cause of action against Father, they failed
to prove the existence of damages, as they failed to present evidence that
Father was in fact uninsurable, and Mother never sought to enforce the
-7-
J-A25006-15
provision requiring that Father purchase life insurance for the children’s
benefit. Id. at 8.
Upon reviewing the record, we find no error or abuse of discretion in
the trial court’s decision to grant counsel’s motion for a directed verdict as
the evidence, viewed in the light most favorable to the children, entitled
counsel to judgment as a matter of law. See Hall, 54 A.2d at 395.
Assuming solely for the sake of this argument that counsel owed a duty to
the children and that counsel breached that duty, as the children claimed, by
failing to investigate whether Father was insurable, there is absolutely no
evidence of record to support a conclusion that counsel’s negligence in this
respect was the proximate cause of any damages. See Nelson, 806 A.2d at
876.
Proximate cause is a term of art denoting the
point at which legal responsibility attaches for the
harm to another arising out of some act of
defendant, ... and it may be established by evidence
that the defendant’s negligent act or failure to act
was a substantial factor in bringing about the
plaintiff's harm. The defendant's negligent conduct
may not, however, be found to be a substantial
cause where the plaintiff’s injury would have been
sustained even in the absence of the actor’s
negligence.
Wilson v. PECO Energy Co., 61 A.3d 229, 237-38 (Pa. Super. 2012)
(quoting Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978)).
The record reflects that Attorney Totaro testified that in his expert
opinion, Attorney Sirolly breached her duty to the children by failing to
-8-
J-A25006-15
investigate whether Father was insurable upon learning that Father had a
medical condition that could be a basis to deny him insurance, as she was
aware that for Father to obtain medical insurance, he had to provide proof of
insurability. N.T., 9/16/14 (Volume I), at 74. Attorney Totaro further
testified that this failure by Attorney Sirolly was “directly related to the
damages, which is the loss of the policy.” Id. at 78.
The only way Attorney Sirolly’s negligence in failing to investigate
Father’s insurability could have proximately caused the loss of the policy,
however, is if Father was not in fact insurable (i.e., that he failed to obtain
life insurance policy because he was uninsurable). The children concede that
there was no evidence regarding Father’s insurability. They baldly state that
such a requirement would be “absurd,” because “it would be impossible to
ascertain and prove the insurability of a person after his death.” Appellants’
Brief at 22. We disagree, as we see no reason that a medical witness or
someone from an insurance agency could not review Father’s medical
records during the relevant time period and make a determination as to
Father’s insurability at that time.
The children also attempt to shift the burden of proof on this issue,
stating, without citation to authority, that evidence that Father was
uninsurable went to an “‘impossibility of performance’ defense,” and that
counsel had the “burden to prove such defense by proffering facts showing
that [Father] was uninsurable (rendering his contract performance
-9-
J-A25006-15
impossible).” Id. As the above-cited case law makes clear, however, the
children had the burden to prove that counsel’s negligence (the failure to
investigate Father’s insurability) was the proximate cause of damage (the
loss of the insurance policy). See Nelson, 806 A.2d at 876. The children
failed to satisfy their burden of proof regarding a material element of a claim
of legal malpractice, and as such, counsel was entitled as a matter of law to
the entry of judgment in their favor.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
- 10 -