J-A07041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICIA FLANAGAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KEVIN HAND, ESQUIRE F/D/B/A : No. 1010 EDA 2018
WILLIAMS AND HAND, P.C. :
Appeal from the Order March 1, 2018
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2015-08413
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 08, 2019
Appellant Patricia Flanagan appeals from the Order entered on March 1,
2018, in the Court of Common Pleas of Bucks County Civil Division granting
the motion for summary judgment of Appellees Kevin Hand, Esquire F/D/B/A
Williams and Hand, P.C. and dismissing Appellant’s Fourth Amended
Complaint with prejudice. Upon our review, we affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
Appellant initiated the instant matter by filing a Praecipe for
Writ of Summons on March 16, 2015 in the Court of Common
Pleas of Philadelphia County against Defendants Kevin Hand,
Esquire; Lynelle Gleason, Esquire; Kardos, Rickles and
Bidlingmeier, P.C.; Williams and Hand, P.C.; Williams Family Law,
P.C.; and Jeff Williams, Esquire, as a result of her dissatisfaction
with representation she received[] in support proceedings related
to her divorce action. Appellant filed her subsequent Complaint for
professional liability against Defendants on June 25, 2015. The
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* Former Justice specially assigned to the Superior Court.
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Complaint asserted counts of Fraud, Professional
Negligence/Malpractice, Breach of Contract/Covenant of Good
Faith and Fair Dealing, and Breach of Fiduciary Duty.
[Appellees] filed Preliminary Objections to Appellant's
Complaint on October 5, 2015, and Appellant filed her First
Amended Complaint on October 26, 2015. Pursuant to a
Stipulation filed on October 27, 2015, this matter was transferred
to the Court of Common Pleas of Bucks County by court order on
November 6, 2015.
Appellant filed her Second Amended Complaint on January
11, 2016, which deleted Kardos, Rickles and Bidlingmeier, P.C. as
a defendant. After [Appellees] filed Preliminary Objections to
Appellant's Second Amended Complaint on February 1, 2016,
Appellant filed her Third Amended Complaint on February 22,
2016.
[Appellees] filed Preliminary Objections to the Third
Amended Complaint on March 11, 2016. Appellant filed a response
in opposition to the Preliminary Objections on May 2, 2016. After
the parties filed a flurry of motions related to discovery, oral
argument was eventually held on December 13, 2016, after which
this [c]ourt entered an Order on January 25, 2017, sustaining the
objections to Count I (a demurrer to the claim for Professional
Negligence/Malpractice), [Appellant’s] improper verification, and
[Appellant’s] requests for “other and further relief” and attorneys’
fees in the Complaint's “wherefore” clauses. The Order overruled
[Appellees’] objection to Count II (Breach of Contract) and denied
[Appellees’] motion for sanctions, but granted [Appellant] leave
to file an amended complaint within twenty days of the date of the
Order.
On February 13, 2017, Appellant filed her Fourth Amended
Civil Action Complaint alleging claims of Professional
Negligence/Malpractice (Count I) and Breach of Contract (Count
II) against remaining [Appellees] Kevin Hand, Lynelle Gleason and
Williams and Hand, P.C. In her Complaint, Appellant alleged that
in January, 2012, she had retained Williams and Hand, P.C. to
represent her in “family law matters stemming from a divorce
action” under Bucks County Docket No. 2009-61819, and that the
firm's principal, Jeff Williams, had advised her that Hand would be
representing her because Williams’ ex-wife represented
Appellant’s ex-husband in the underlying divorce action. Appellant
further alleged that she had not been provided with a written fee
agreement or an explanation of how much her legal fees would
likely be.
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Appellant claimed that after [Appellees] had provided her
with her ex-husband's financial information, she contested the
amounts reported by him for his annual income and his business
valuation. She thereafter attended a Master’s Hearing on March 8,
2013, with [Appellees] at which [Appellees] allegedly failed to
challenge her ex-husband's financial information. Appellant
claimed that her ex-husband’s annual income was “fraudulently
low,” his business valuation was “several million dollars less than
[Appellant’s] business valuation,” and that she had been assigned
responsibility for a line of credit against which Husband had drawn
checks for $188,000 for business purposes and which he was
using to pay his divorce attorney. When Appellant asked
[Appellees] to act to either stop her ex-husband from paying his
divorce attorney with the business funds or allow her to pay her
attorneys' fees with the same account, [Appellees] allegedly
advised her that there was nothing they could do. [Appellees] also
allegedly failed to act on her request to have her ex-husband pay
her legal bills.
Appellant claimed that she had paid [Appellees]
approximately $200,000 over a fourteen month period leading up
to the Master's Hearing. She alleged that when she attempted to
object to her husband's financial information at the Master's
Hearing, she was told by Hand to keep quiet. When she
complained to [Appellees] about their representation of her
interests at the Master's Hearing and their failure to challenge her
ex-husband's financial data, she was allegedly told that her
concerns were being “saved” and would be raised at a hearing de
novo. She claimed that she was advised by [Appellees], however,
that this would require an additional fee of $150,000. Appellant
asserted that at that point she “finally understood that [Appellees]
were not loyally representing her” and she terminated their
representation.
Appellant claimed that she was “on the verge of
bankruptcy,” but obtained new counsel with whom she attended
a hearing de novo on July 9, 2013. The matter did not conclude
on that day and was continued for a second day on September 18,
2013. Appellant claimed, however, that on September 18, 2013,
her ex-husband offered her a settlement, “knowing that [she] was
financially unstable and could not afford to pursue litigation.” She
claimed she did not want to accept the offer but was advised by
her new counsel that “she would need approximately $80,000
more to litigate the matter if [she] did not settle the matter that
day.” Appellant therefore asserted in her Complaint that “because
of [Appellees’] intentional scheme to prolong representation, by
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failing to raise the aforementioned issues at the Master's Hearing,
and [Appellees’] failure to obtain payment for her attorney fees,
[Appellant] was caused to accept a diminished settlement to her
severe financial detriment.”
[Appellees] filed an Answer and New Matter to [Appellant’s]
Fourth Amended Complaint on March 16, 2017, in which they
specifically denied not providing [Appellant] with a written fee
agreement or an explanation of how much her fees would likely
cost. They further specifically denied ever telling [Appellant] that
they were “saving any issues to be addressed at a later
proceeding,” or that [Appellant] asked if they could stop her ex-
husband from using “business funds” to pay his attorney, or that
she asked if she could use the “business funds” to pay her
attorneys. They also denied that [Appellant] had asked them why
they had not raised the contested financial issues at the Master's
Hearing. They asserted that they did raise those issues at the
hearing, and denied telling her to keep quiet at that hearing.
Furthermore, [Appellees] denied [Appellant’s] allegation that she
had terminated them, and asserted to the contrary that they had
in fact terminated their representation of her.
On October 2, 2017, [Appellees] filed a Motion for Summary
Judgment in which they argued that, as a result of the gist of the
action doctrine, [Appellant’s] claim was based not upon a breach
of contract but upon negligence, and was therefore barred by the
two-year Statute of Limitations. [Appellees] further argued that
[Appellant] could not prove their liability for her damages because
their representation of [Appellant] was limited to the non-binding
Master's Hearing, which was subject to a subsequent de novo
review. Finally, [Appellees] argued that [Appellant’s] legal
malpractice claim was barred by the doctrine announced in
Muhammad v. Strassburger, McKenna, Messer. Shilobod and
Gutnick, 587 A.2d 1346 (Pa. 1991), [rehearing denied, 528 Pa.
345, 598 A.2d 27 (1991), cert. denied, 502 U.S. 867 (1991)]
which prohibits a legal malpractice claim against attorneys after a
plaintiff has agreed to a settlement in the underlying case.
Appellant filed a response in opposition to [Appellees’]
Motion for Summary Judgment on November 1, 2017. She
contended inter alia that summary judgment was premature
because discovery was not yet complete, the claim was filed within
two years of the discovery of when the malpractice occurred, and
[Appellees’] “fraudulent inducement also tolls the statute of
limitations.” Appellant further argued that Muhammad is not
applicable, and that another case, White v. Kreithen, 644 A.2d
1262 (Pa.Super. 1994)[, appeal denied, 652 A.2d 1324
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(Pa.1994)] was controlling in this matter. (See Memorandum of
Law in Support of Plaintiff's Opposition to Defendants' Motion for
Summary Judgment, 11/1/17.)
On March 1, 2018, after careful consideration of the issues
this [c]ourt entered an Order granting [Appellees’] Motion for
Summary Judgment and dismissing Plaintiff's Fourth Amended
Complaint with prejudice.
On April 2, 2018, Appellant filed a Notice of Appeal to the
Superior Court of Pennsylvania from our Order of March 1, 2018.
Pursuant to our Order of March 27, 2018, directing [Appellant] to
file a concise statement of the errors complained of on appeal
within twenty-one days of the date of the order, Appellant filed
her Concise Statement on April 23, 2018.
Trial Court Opinion, filed 7/12/18, at 1-6.
Although she raised nine (9) allegations of trial court error in her Concise
Statement of Matters Complained of on Appeal filed on April 23, 2018, in her
appellate brief Appellant presents only the following issue for our review:
Did the Court of Common Pleas err when it held Muhammad,
infra., required below Defendants’ Motion for Summary Judgment
be granted secondary to below Plaintiff’s underlying action’s
settlement through successor counsel?
Brief for Appellant at 10.1 It is well-settled that:
[o]ur scope of review of a trial court’s order granting or
denying summary judgment is plenary, and our standard of review
is clear: the trial court’s order will be reversed only where it is
established that the court committed an error of law or abused its
discretion.
Summary judgment is appropriate only when the record
clearly shows that there is no genuine issue of material fact and
____________________________________________
1 While Appellant did not raise this specific issue directly in her Concise
Statement of Matters Complained of on Appeal, we will not find it to be waived
as it was fairly suggested in Paragraph 6 thereof which reads: “Whether this
Honorable Court erred by holding [Appellant’s] legal malpractice claims are
barred because [Appellant] agreed to settle the underlying action.” See
Pa.R.A.P. 1925(b)(4)(vii).
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that the moving party is entitled to judgment as a matter of law.
The reviewing court must view the record in the light most
favorable to the nonmoving party and resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Ludwig v. McDonald, 2019 WL 759973 at *5 (Pa.Super. filed Feb. 21, 2019)
(citations omitted).
Appellant asserts Muhammed, supra, is inapplicable to her instant
legal malpractice claim against Appellees due to the fact that Appellees’
underlying legal errors caused Appellant to accept a “diminished settlement”
by successor counsel. Brief for Appellant at 15. Appellant reasons that unlike
the Muhammed plaintiffs, she is “not questioning the initial counsel’s
settlement valuation. [She] is asserting that she settled only because her
funds were totally drained as a result of [Appellees’] failures- she could no
longer afford to proceed.” Id. at 16. Relying upon White, supra, Appellant
contends that where, as herein, a plaintiff is not attempting to second guess
a settlement valuation, but rather, avers negligence precipitated that
settlement by successor counsel, prior counsel’s negligence “precludes that
settlement from barring a subsequent legal malpractice action.” Id. at 18. In
the alternative, Appellant concludes that:
If this Honorable Court disagrees that there exists a
negligence exception to Muhammad (i.e. not mere negligent
settlement evaluation but rather negligent settlement causation),
Muhammad does not even apply instantly. That is, the settlement
at issue regarded the de novo litigation (through successor
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counsel)-two distinct proceedings- necessarily distinguishing
Muhammad’s rationale.
Id. Following our review, we disagree.
Muhammad is a seminal case wherein the plaintiffs brought a medical
malpractice claim following the tragic death of their infant son during a surgical
procedure. Muhammad, 587 A.2d at 1347. The case settled for $26,500,
and the Muhammads later informed counsel of their dissatisfaction with that
amount. The Muhammads obtained new counsel and filed a legal malpractice
action against their previous counsel in the underlying medical malpractice
case. Id. at 1347–1348. The Pennsylvania Supreme Court ultimately held
that absent specific allegations of fraud, a client who agrees to settle a case
cannot subsequently bring a legal malpractice action against his or her
attorney based upon retrospective unhappiness with the terms of that
settlement to which he or she agreed. The Court announced:
Simply stated, we will not permit a suit to be filed by a dissatisfied
plaintiff against his attorney following a settlement to which that
plaintiff agreed, unless that plaintiff can show he was fraudulently
induced to settle the original action. An action should not lie
against an attorney for malpractice based on negligence and/or
contract principles when that client has agreed to a settlement.
Rather, only cases of fraud should be actionable.
Id. at 1348. The Supreme Court explained its decision was based on the
strong and historical public policy of encouraging settlements:
The primary reason we decide today to disallow negligence
or breach of contract suits against lawyers after a settlement has
been negotiated by the attorneys and accepted by the clients is
that to allow them will create chaos in our civil litigation system.
Lawyers would be reluctant to settle a case for fear some
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enterprising attorney representing a disgruntled client will find a
way to sue them for something that “could have been done, but
was not.” We refuse to endorse a rule that will discourage
settlements and increase substantially the number of legal
malpractice cases. A long-standing principle of our courts has
been to encourage settlements; we will not now act so as to
discourage them.
Id. at 1349.
The Court further declared that, “henceforth we should view ‘litigation
concerning litigation’ cases with a jaundiced eye” and clarified that absent a
specific allegation of fraud, a settlement agreement forecloses a dissatisfied
litigant’s ability to file suit against his or her attorney:
We do believe, however, there must be redress for the plaintiff
who has been fraudulently induced into agreeing to settle. It is
not enough that the lawyer who negotiated the original settlement
may have been negligent; rather, the party seeking to pursue a
case against his lawyer after a settlement must plead, with
specificity, fraud in the inducement. One may not induce another
to contract by fraudulent misrepresentations.
Id. at 1351 (emphasis in original) (citation, ellipsis, and quotation marks
omitted). The Muhammad Court declared that “[i]n the event a litigant
believes he has been fraudulently induced into settling, he has the right to file
a suit, alleging with specificity the acts that he claims are fraudulent.” Id.
at 1352 (emphasis in original).
In White, the plaintiff fired the lawyers who had been representing her
in a medical malpractice action against a number of health care providers
involved in her medical treatment because she felt they had not been
preparing for trial adequately. White alleged in her ensuing legal malpractice
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complaint that her former counsel subsequently had interfered with her ability
to secure new counsel by refusing to transfer her file and by demanding
unreasonable referral fees from proposed new counsel. White, 644 A.2d at
1263. Consequently, White entered her appearance pro se in the medical
malpractice case, and following a pretrial conference she was forced to accept
an unfavorable settlement recommended by the Calendar Judge rather than
immediately proceed to trial without counsel. Id.
The White Court found Muhammad did not preclude the subsequent
legal malpractice action against White’s prior counsel under the facts set forth
in White’s amended complaint because counsel did not negotiate the
settlement of the medical malpractice action. The Court further found that
White did not knowingly and voluntarily conclude the underlying action by
entering into the settlement agreement, but rather, was forced to settle her
claim as a result of the appellees’ alleged failure to investigate and prepare
her case for trial. Id. at 1265. The Court stressed that the spirit of the rule
pronounced in Muhammed would not be achieved in finding White’s
malpractice action to be barred, since “appellees did not participate in the
settlement, and appellant was prevented- allegedly as a result of appellees’
conduct- from questioning ‘before settlement’ whether the terms of the
settlement were advantageous.” Id. The Court concluded that “because the
complaint alleges that appellant was subsequently forced to settle her claim
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as a result of appellees’ negligence, the rule pronounced in Muhammad may
not be invoked to preclude her claim for such negligence.” Id.
To the extent Appellant argues that White suggests a legal malpractice
action may be maintained even where one has fired his or her attorney and
the client subsequently accepts an unfavorable settlement because she could
not afford to proceed further, see Appellant’s Brief at 16-17, we note a critical
difference between that case and the instant situation. Herein, as we shall
discuss in more detail infra, Appellant does not allege that Appellees interfered
in any way with her ability to secure new counsel, and, in fact, she was able
to do so for her appeal de novo. In this regard, we are guided by this Court’s
decision in Spirer v. Freeland & Krontz, 643 A.2d 673 (Pa.Super. 1994),
appeal denied, 543 Pa. 730, 673 A.2d 336 (1996) which was handed down a
few months prior to White, although Appellant fails to acknowledge this
decision in her appellate brief.
In Spirer, the plaintiff alleged in her complaint that she had entered
into an oral contract with the defendant attorneys wherein they agreed to
represent her in a divorce action instituted by her former husband. The
complaint asserted that the defendants had breached their duty of good faith
and fair dealing in their performance of the contractual agreement and that
their failure to perform their contractual obligations, and specifically obtain
accurate financial information concerning her husband’s assets, caused her to
receive a deficient distribution of marital property, alimony, and other
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available relief. Id. at 675. She testified regarding those claims at her
deposition and argued counsel’s discovery efforts should have uncovered
significantly more assets belonging to her former husband which could have
been claimed as joint marital property. Id. at 675-76. Notwithstanding her
representations, the plaintiff ultimately executed settlement documents in
connection with her divorce action wherein she stated she fully understood
and accepted the settlement terms as fair and equitable and that she had
entered into the settlement freely and voluntarily. Id. at 676.
Examining the record in light of the clear holding in Muhammad, this
Court reversed the trial court’s denial of the defendant’s motion for summary
judgment and in doing so stated:
It is evident that the plaintiff's complaint failed to allege with
specificity any fraudulent acts on the part of the defendants.
Moreover, neither the testimony of the plaintiff in deposition, nor
any other matter in the record, provides any additional evidence
to support an inference that the plaintiff has established a cause
of action in fraud against her former attorneys. The complete
absence of allegations or other inferences of fraud compels us to
conclude that the trial court committed an error of law in failing
to grant summary judgment to the defendants, based upon the
directly applicable rule enunciated by the Supreme Court in
Muhammad.
Id.
Also instructive is our more recent holding in Silvagni v. Shorr, 113
A.3d 810, 813 (Pa.Super. 2015), reargument denied, May 27, 2015, appeal
denied, ___ Pa. ____, 128 A.3d 1207 (2015), wherein the plaintiff brought a
legal malpractice action against his former attorney and firm for allegedly
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offering flawed advice that induced him into settling his worker's
compensation claim. The plaintiff claimed that but for the incorrect legal
advice he had received, he would not have agreed to the terms of the
settlement. The trial court granted summary judgment in favor of the
defendants, and, on appeal, this Court affirmed on the basis of Muhammad.
In doing so, we reasoned as follows:
During the colloquy, [] Silvagni acknowledged, under oath,
that he understood that in return for the settlement he would no
longer receive medical benefits or any other benefits under the
Workers' Compensation Act. N.T. Compromise and Release
Hearing, supra at 6–7. Counsel engaged Silvagni in a thorough
colloquy, advising him of the consequences of the settlement. The
colloquy included questions from opposing counsel as well as
Judge Baldys. There is no indication that Silvagni's assent to the
Compromise and Release Agreement was involuntary. Silvagni is
thus barred from filing an action in negligence against Defendants.
See Muhammad, supra (when client has signed off on final
settlement agreement, absent fraud, client may not later sue his
attorney because he is dissatisfied with settlement amount). See
also Banks v. Jerome Taylor & Assoc., 700 A.2d 1329, 1332
(Pa.Super.1997) (where dissatisfied litigant merely wishes to
second guess decision to settle due to speculation he may have
been able to “get a better deal,” Muhammad rule applies to bar
litigant from suing counsel for negligence). Compare Martos v.
Concilio, 427 Pa.Super. 612, 629 A.2d 1037 (1993) (client
displeased with results of settlement agreement could not sue
attorney for malpractice absent allegations of fraudulent
inducement) with McMahon v. Shea, 547 Pa. 124, 688 A.2d 1179
(1997) (holding Muhammad rule did not apply to divorce
settlement where counsel allegedly failed to advise client of legal
ramification of settlement) and Collas v. Garnick, 425 Pa.Super.
8, 624 A.2d 117 (1993) (counsel who negligently advised personal
injury clients that signing general release did not bar future
lawsuits against other possible tortfeasors could be liable in
negligence).
Unless Silvagni had specifically pled, and could prove,
Defendants fraudulently induced him into signing the Compromise
and Release Agreement, or he could prove that Defendants failed
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to explain the effect of that settlement, or that the settlement was
somehow legally deficient, Silvagni is barred from maintaining an
action in negligence against Defendants. Viewing the record in the
light most favorable to Silvagni, and resolving all doubts as to
whether there exists a genuine issue of material fact against
Defendants as the moving party, we conclude that it is clear that
Defendants are entitled to judgment as a matter of law. We find
no abuse of discretion or error of law. Sokolsky, supra.
Silvagni, 113 A.3d at, 815–16 (2015) (footnote omitted).
This Court later referenced Silvagni’s application of the Muhammad
rationale when deciding Kilmer v. Sposito, 146 A.3d 1275 (Pa.Super. 2016)
at which time we distinguished an attorney’s professional judgment in
negotiating a settlement from the attorney’s failure to advise a client correctly
on the law pertaining to the client’s interests. In Kilmer, the plaintiff/wife,
following her attorney's advice, elected to take against her late husband's will,
which gave her 1/3 of his estate. Id. at 1276. The wife subsequently learned
that by operation of law she would have been entitled to one-half of the estate
as a surviving spouse who had married the testator after he made his will.
She retained new counsel and eventually settled with the estate, agreeing to
take a 41.5% share. Id. at 277. Thereafter, the wife sued her former
attorney, alleging professional negligence and breach of contract for failing to
advise her correctly on the law. Id. at 1277, 1279. The trial court sustained
the defendant/attorney's preliminary objections, finding that the claims were
barred by Muhammad. Id. at 1278.
On appeal, this Court indicated it was constrained to reverse the trial
court’s Order and in doing so reasoned as follows:
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Muhammad [ ] stands for the proposition that dissatisfied
plaintiffs may not later challenge an attorney's professional
judgment with respect to an amount of money to be accepted in
a settlement, unless plaintiffs plead and can prove they were
fraudulently induced to settle. As such, the Muhammad decision
is inapposite to the present action, which focuses not on [the
attorney's] professional judgment in negotiating a settlement—
indeed, he was no longer [the wife's] attorney when [the wife]
ultimately settled—but on his failure to advise her correctly on the
law pertaining to her interest in her late husband's estate. The
facts of the case sub judice, therefore, take it outside the scope
of the Muhammad prohibition against second-guessing an
attorney's judgment as to settlement amounts.
Id. at 1279-80. We concluded that “barring Appellant from seeking to hold
Appellee accountable for allegedly flawed legal advice on an underlying matter
essential to her inheritance as a surviving spouse would not advance the
interests of finality in settlements.” Id. at 1280.
In her Fourth Amended Complaint, Appellant herein did not allege that
any fraudulent conduct on the part of Appellees induced her to enter into the
Property Settlement Agreement on December 18, 2014. Rather, Appellant
asserted claims sounding only in negligence and breach of contract.
Moreover, this case does not present a situation wherein Appellant relied upon
the incorrect advice of Appellees in entering the Property Settlement
Agreement as was the case in Kilmer, nor was she deprived of the opportunity
to retain new counsel like the plaintiff in White. To the contrary, regardless
of Appellees’ alleged negligent acts or omissions at the non-binding 2013
Master’s Hearing, Appellant was represented by new counsel at the trial de
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novo which presented a fresh opportunity for Appellant to pursue the issues
she faulted Appellees for failing to advance.
In fact, Appellant indicated that she was assisted in the negotiation and
preparation of the Property Settlement Agreement which settled the
underlying divorce action by Susan Levy Eisenberg, Esquire, that she fully
understood the terms, conditions, and provisions thereof, and that she
believed those terms to be “fair, just, adequate, a[n]d reasonable.” See
Property Settlement Agreement, 12/18/14, at 4, Section VI. Unlike the
plaintiff in White who was left with no choice but to settle her medical
malpractice action or proceed to trial pro se, Appellant's decision to enter the
Property Settlement Agreement with the assistance of new counsel was purely
of her own volition and cannot be attributed to any fraudulent interference by
Appellees. As the trial court reasoned:
Appellant was obviously unhappy with the amount of
support she was awarded after the Master's Hearing on March 8,
2013, and therefore proceeded to a hearing de novo in an attempt
to obtain a greater financial award. On the scheduled second day
of the hearing de novo, Appellant claimed that when she was
informed by her new counsel that if she did not accept her ex-
husband's settlement offer it would cost her approximately
$80,000 more to continue to litigate the matter, she reluctantly
accepted the offer. Presumably, when the hearing de novo did not
conclude in her favor after the first day but was continued, and
she was faced with the prospect of mounting litigation costs that
might not result in a guaranteed favorable outcome, Appellant
apparently accepted that settlement offer.
Appellant obviously believes that she was not awarded a
sufficient amount of support, and is attempting to attribute that
to the alleged failure of [Appellees] to challenge the financial
information provided by her ex-husband at the non-binding
Master's hearing. Appellant suggests she was “shortchanged” in
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the amount of support she received between the time of the
Master's conference and the hearing de novo, and her legal
malpractice claim is therefore based upon mere speculation that
had her ex-husband's financial information been challenged, she
would have received a greater award of support. She fails to
acknowledge, however, that she nevertheless settled for a lesser
amount of support than she expected, but which was presumably
based upon the same information presented at the Master's
conference.
Appellant is now clearly attempting to obtain a “second bite
of the apple” through this legal malpractice action against her
original attorneys. What is clear from the record, however, is that
there is no evidence to suggest that Appellant was fraudulently
induced into accepting the settlement by [Appellees], and
significantly, [Appellees] were in fact no longer representing
Appellant in the subject proceedings when she agreed to accept
her ex-husband's settlement offer. Therefore, while it was difficult
to discern a legal malpractice action against [Appellees] in this
matter based upon breach of contract in that Appellant failed to
identify with any specificity particular contract clauses that were
breached, and Appellant's claims against [Appellees] sounded
primarily in negligence, our decision was based upon, and we were
consequently constrained to grant summary judgment in
accordance with, the principles announced by the Supreme Court
of Pennsylvania in Muhammad, supra.
Trial Court Opinion, filed 7/12/18, at 8-9.
Accordingly, we affirm the trial court’s Order entering summary
judgment against Appellees and dismissing Appellant’s Fourth Amended
Complaint with prejudice.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/19
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