J-A04022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN F. CONLEY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
WILLIAM E. STOCKEY AND STOCKEY
AND KELLY, JOINTLY AND SEVERALLY,
Appellees No. 548 WDA 2015
Appeal from the Order February 26, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 09-22371
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 26, 2016
John F. Conley appeals from the order entered February 26, 2015,
which granted summary judgment to William E. Stockey and Stockey & Kelly
(collectively, Stockey) in this legal malpractice action. We affirm.
In 2005, Jeffrey A. Butya approached Appellant, seeking a loan of
$100,000.1 Appellant and Mr. Butya both had been represented by Stockey
previously, and the three of them knew each other well.2 Appellant trusted
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1
We derive the factual background to this case from Appellant’s deposition,
attached to his response to Stockey’s motion for summary judgment. See
Response, 01/02/2015, Exhibit A.
2
Stockey represented Appellant previously in various collection efforts and
real estate issues.
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Stockey. Thus, Mr. Butya suggested that Stockey could facilitate the loan
transaction.
In September 2005, Appellant, Mr. Butya, and Stockey met to discuss
the potential loan. In addition, Appellant and Stockey discussed the
potential loan during at least one phone conversation. However, Appellant
could not recall whether Stockey offered any advice regarding the potential
loan. As a result of these conversations, and as Mr. Butya continued to owe
Appellant money from a previous loan, it was determined that a new loan
would be formalized and would incorporate the pre-existing debt as well.
In October 2005, Appellant and Mr. Butya agreed to terms in a formal
closing whereupon Appellant loaned $150,000 to Mr. Butya.3 The loan was
secured purportedly by a mortgage to real property owned by Mr. Butya’s
brother, Brian Butya. However, at the closing, Appellant signed a waiver,
acknowledging expressly that the property was subject to foreclosure
proceedings that may render the loan unsecured. See Waiver, 10/20/2005.
Shortly after closing, Mr. Butya defaulted on the loan. Appellant
obtained a judgment, which was affirmed by this Court. See Conley v.
Butya, 62 A.3d 463 (Pa. Super. 2012) (unpublished memorandum).
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3
Although the parties signed a note suggesting that Appellant loaned
$150,000 to Mr. Butya, in fact, Appellant only provided $100,000. Mr. Butya
also owed an additional $12,000 to Appellant from a previous loan.
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Attempts to collect on this judgment have been unsuccessful. See Second
Amended Complaint, 04/10/2013, at ¶ 38.
The documents for the 2005 loan transaction were drafted by Attorney
Michael Carr, Esq., who also attended the October 2005 closing. Appellant
presumed that Stockey had reviewed all of the documents. However,
Stockey was neither present at the closing, nor did he review or discuss the
documents with Appellant prior to the closing. In addition, Stockey never
billed Appellant for any legal services, and Appellant never paid Stockey any
legal fees.
Appellant commenced this action by writ of summons in December
2009. Appellant filed a complaint in October 2010, claiming professional
negligence and breach of contract. Stockey filed preliminary objections;
Appellant filed an amended complaint. Following a second round of
preliminary objections, this action was stayed pending resolution of
Appellant’s claims against Mr. Butya. In April 2013, Appellant filed a second
amended complaint. Again, Stockey filed preliminary objections, resulting in
the dismissal of Appellant’s contract claim. In November 2012, Stockey filed
a motion for summary judgment. Appellant timely responded. Following
argument, the trial court granted Stockey’s motion for summary judgment
and dismissed Appellant’s complaint.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive opinion.
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Appellant raises the following issues:
[1.] Whether the trial court erred in granting summary judgment
to [Stockey] on the basis of credibility determinations[;]
[2.] Whether the trial court erred in granting summary judgment
where material issues of fact exist[; and]
[3.] Whether the trial [c]ourt erred in ruling that an attorney-
client relationship could not exist absent a fee agreement
between Appellant and [Stockey].
Appellant’s Brief at 2.
Although Appellant purports to raise three issues before this Court, his
brief presents two, distinct arguments. See Appellant’s Brief at i, 9, and 14.
First, according to Appellant, the trial court impermissibly relied upon
deposition testimony of Attorney Carr, who was deposed on behalf of
Stockey, thus violating the Nanty-Glo Rule. See Appellant’s Brief at 14-
17.4 Second, Appellant suggests that he proffered sufficient evidence to
establish that an attorney-client relationship existed between Appellant and
Shockey. Id. at 9-14. Technically, Appellant’s brief does not conform to
Rule 2119 of the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P.
2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued[.]”). Moreover, Appellant presents his arguments in
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4
The Nanty-Glo Rule precludes summary judgment based solely upon
testimonial evidence of the moving party or its witnesses. See Shamis v.
Moon, 81 A.3d 962, 965 (Pa. Super. 2013); Nanty-Glo v. American
Surety Co., 163 A. 523 (Pa. 1932).
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reverse order of the issues he identifies. Nevertheless, as these defects do
not preclude our review, we will address his arguments.
The standard and scope of our review are as follows:
Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its
discretion or committed an error of law[,] and our scope of
review is plenary. We view the record in the light most
favorable to the nonmoving 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 a judgment as a matter of law will summary
judgment be entered.
…
Where the non-moving party bears the burden of proof on an
issue, he may not merely rely on his pleadings or answers in
order to survive summary judgment. Further, failure of a
nonmoving party to adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law.
Silvagni v. Shorr, 113 A.3d 810, 812 (Pa. Super. 2015) (quoting Sokolsky
v. Eidelman, 93 A.3d 858, 861–62 (Pa. Super. 2014)).
It is long settled that “summary judgment may not be entered where
the moving party relies exclusively upon deposition testimony in order to
establish that there is no genuine issue of material fact.” Drapeau v. Joy
Techs., Inc., 670 A.2d 165, 167 (Pa. Super. 1996) (citing Penn Center
House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989); Nanty-Glo, 163
A. at 524). Nevertheless, we may affirm a decision “on any grounds that are
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supported by the record.” Shamis, 81 A.3d at 970 (citing Cassel-Hess v.
Hoffer, 44 A.3d 80, 85 (Pa. Super. 2012)).
In his first issue, Appellant asserts that the trial court impermissibly
“based its decision on credibility determinations.” Appellant’s Brief at 14. In
particular, Appellant challenges the court’s reliance upon the deposition
testimony of Attorney Carr to refute Appellant’s claim that Stockey’s current
representation was established by previous efforts made on Appellant’s
behalf:
More persuasive is that Attorney Michael Carr was contacted by
Attorney Stockey, told of the conflict that existed for Stockey in
representing either [Appellant] or [Butya]. Attorney Michael
Carr was subsequently hired by Jeffrey Butya, drafted the
documents necessary to finalize the 2005 [l]oan, attended the
closing and he was paid for services associated with same.
Further bolstering … Stockey’s claim, [Attorney] Carr testified
that Stockey did not represent [Appellant] or anyone else with
regard to [the] 2005 [l]oan or [c]losing.
Trial Court Opinion, 05/26/2015, at 6 (emphasis added; citing the deposition
of Attorney Carr). According to Appellant, it was improper for the trial court
to assess the credibility of witnesses, and this error precluded entry of
summary judgment.
Appellant’s argument is not persuasive. In our view, the trial court’s
analysis was flawed, and we disapprove of the trial court’s determination
that Attorney Carr’s testimony was “more persuasive” than Appellant’s
evidence to the contrary. See Silvagni v. Shorr, 113 A.3d at 812
(requiring that we view the record in the light most favorable to the non-
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moving party). Nevertheless, this was not the sole basis of the trial court’s
decision.
To the contrary, the trial court properly recognized that in order to
state a claim of attorney malpractice, a plaintiff must establish:
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.
Trial Court Opinion at 5 (citing Kituskie v. Corbman, 714 A.2d 1027, 1029
(Pa. 1998)). Having established this framework, the trial court noted that it
was undisputed that Appellant and Stockey never entered into a fee
agreement regarding the 2005 loan; that Stockey never reviewed the loan
documents with Appellant prior to closing; and that Appellant never paid
Stockey for legal services. Id. at 6. Based upon this absence of evidence,
the court determined that Appellant could not establish employment of
Stockey. We discern no abuse of the court’s discretion in this regard.5
In his second issue, Appellant contends the trial court erred as a
matter of law when it required the existence of a fee agreement to establish
an attorney-client relationship between him and Stockey. According to
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5
Alternatively, the trial court also referenced Appellant’s waiver,
acknowledging expressly that the property was subject to foreclosure
proceedings that may render the loan unsecured. It is not clear from the
court’s opinion why the court found this undisputed evidence significant. In
our view, the waiver is irrelevant to whether Appellant employed Stockey for
legal services, though it may have been probative in another context.
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Appellant, there was sufficient evidence to establish an implied attorney-
client relationship existed. See Appellant’s Brief at 10. Appellant suggests
that based upon their prior attorney-client relationship and, further, because
Stockey wanted to secure additional work from Appellant’s son, it was
reasonable for him to believe that Stockey was representing him in the 2005
loan transaction. Id. at 13-14.
Appellant is entitled to no relief. First, the premise of Appellant’s
argument is flawed. Second, mindful of our standard of review, and viewing
the evidence in the light most favorable to Appellant, we conclude that he
cannot establish an implied attorney-client relationship.
Following its conclusion that Appellant could not establish an express
contract for legal services, the trial court examined “whether an
attorney/client relationship was consummated absent an express contract.”
Trial Court Opinion at 8 (emphasis added). Thus, the trial court did not
require Appellant to produce evidence of a fee agreement. To the contrary,
as recognized by the trial court, an implied relationship may be found when
certain conditions are met.
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.
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Kirschner v. K&L Gates LLP, 46 A.3d 737, 748-49 (Pa. Super. 2012)
(quoting Cost v. Cost, 677 A.2d 1250, 1254 (Pa. Super. 1996)); see also
Trial Court Opinion at 8. Reviewing Appellant’s evidence, the trial court
concluded that although Appellant could establish the first two conditions,
the court discerned no evidence that Stockey agreed to provide Appellant
with legal assistance. See Trial Court Opinion at 8.
We agree with the court’s conclusion. Further, we note that a
plaintiff’s subjective belief that an attorney represents his interests is
insufficient. See Cost, 677 A.2d at 1254. Here, even accepting that
Appellant’s prior relationship with Stockey included legal representation,
there is no evidence that Stockey agreed, expressly or implicitly, to
represent Appellant in the 2005 loan transaction. Notably, Stockey never
billed Appellant for any legal services, and Appellant never paid Stockey any
legal fees. Stockey was not present at the closing, and he never reviewed
the loan documents with Appellant prior to the closing. At most, Appellant’s
evidence demonstrates his subjective belief that Stockey represented him.
Such evidence is insufficient. Cost. Accordingly, we discern no error of law.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2016
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Conley, J. v. Stockey, W.
Combined Opinion