Steiner v. Markel

Justice SAYLOR,

dissenting.

I respectfully differ with the majority’s reasoning in several material respects, and I favor a supplemental allowance of appeal to address what I believe is a significant subsidiary question.

In terms of the majority’s approach, first, its opinion rejects an interpretation of Cardenas v. Schober, 788 A.2d 317 (Pa.Super.2001), that would recognize a duty with the trial courts to discover a cause of action from the facts stated in a complaint. See Majority Opinion, at 1258. Nevertheless, the majority does not reconcile its position with the following passage from the Cardenas decision: “[I]t is the duty of the court to discover from the facts alleged in a complaint the cause of action, if any, stated therein.” Cardenas, 783 A.2d at 325; see also id. (“[I]t is not necessary that the plaintiff identify the specific legal theory underlying the complaint.”); DelConte v. Stefonick, 268 Pa.Super. 572, 577, 408 A.2d 1151, 1153 (1979) (same).

The majority proceeds to distinguish Cardenas factually, establishing that the intermediate appellate court in that case did not sua sponte discover a cause of action from the facts stated in a complaint. See Majority Opinion at 1259. However, its opinion does not acknowledge that this Court appears to *529have done so in a decision referenced by Appellees in their brief and emphasized at oral argument. See Lobolito, Inc. v. North Pocono Sch. Dist., 562 Pa. 380, 389-91, 755 A.2d 1287, 1292-93 (2000) (discerning the possible application of a promissory estoppel theory from the facts alleged in a complaint, although such theory was not raised in the appellate briefing). More generally, the majority opinion seems disharmonious with the general conception of fact pleading relied upon by Appellees, although the majority does not appear to confront this longstanding principle directly.1

To the degree Pennsylvania is to remain a fact-pleading jurisdiction, I have no objection to continuing the practice of courts reviewing the allegations of a complaint to determine whether the facts state a cause of action on any theory. See, e.g., Cardenas, 783 A.2d at 325.2 Plaintiffs must bear in mind, however, both the prohibition against splitting of causes of action, see Pa.R.C.P. No. 1020(d), and the specific obligation to state each cause of action in a separate count where the intent is to pursue multiple causes of action, see Pa.R.C.P. No. *5301020(a).3 Amendments to correct pleading defects (such as a failure to identify multiple causes of action) are to be liberally allowed in the interests of justice. ¡See Pa.R.C.P. No. 126. Where, however, the amendment pertains to the addition of a cause, timing is a relevant issue (since, as in the present case, statutes of limitations may come into play). See Ash v. Continental Ins. Co., 593 Pa. 523, 525, 932 A.2d 877, 879 (2007) (explaining that “an amendment introducing a new cause of action will not be permitted after the statute of limitations has expired”). These factors seem to me to erect substantial impediments to Appellees’ arguments, particularly since Appellees pursued multiple causes of action in their complaint.

As (or perhaps more) important, a substantial, underlying, conceptual problem in this case is that this Court has not detailed the elements of a contract-based cause of action for legal malpractice in a fashion which would meaningfully distinguish them from those necessary to support a tort-based cause. Indeed, the discussion of a contract-based cause in Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993), suggests the elements of tort- and contract-based causes of action in this setting overlap substantially, if not completely. See id. at 251-52, 621 A.2d at 115.4 See generally 3 West’s Pa. Prac., Torts: Law and Advocacy § 6:29 (2008) (suggesting that, if Bailey is adhered to on its terms, “any distinction between contract and tort claims is practically meaningless” and plaintiffs, by mere “skillful pleading” may avail themselves of the longer limitations period). A counter-position has developed in the federal courts, which have effectively predicted this Court would require averment of a breach of some particular provision of the agreement of representation, or a failure to follow specific client instructions, to support a contract-based claim. See, e.g., Stacey v. City of Hermitage, 2008 WL 941642, *4 (W.D.Pa. Apr. 7, 2008); see also Edwards v. Thorpe, 876 *531F.Supp. 693, 694 (E.D.Pa.1995). In light of such enhanced requirement for contract-based pleading, these courts have admonished, “a plaintiff may not repackage a negligence-based malpractice claim under an assumpsit theory to avoid the statute of limitations.” Stacey, 2008 WL 941642, at *5.

In my view, the preferable approach to clarifying this disordered area of the law would be to delineate the elements of a contract cause of action for legal malpractice, compare them to those pertaining to a tort cause, and isolate any distinguishing factors. In this effort, the federal courts’ approach should be considered. The difficulty is that, although Appellants sought to raise this matter in their petition for allowance of appeal,5 this Court issued a limited grant order omitting the question. Since, upon further study, I believe we should have included the issue in our grant order, I would now remedy this via a supplemental order with leave to submit additional briefing.

In response to my position, the majority suggests that I have confused the concepts of “claims” and “legal theories,” see Majority Opinion at 524-26 n. 11, 968 A.2d at 1258-59 n. 11; misconstrued the Lobolito decision, see id.; and proposed the issuance of an improper advisory opinion, see id. at 522-23 n. 9, 968 A.2d at 1257 n. 9.

I have difficulty answering the first of these points, because the majority does not indicate what passage of my opinion it is challenging. For my part, I do not see where I have used the terms “legal theories” or “claims” inappropriately. As to Lobolito, the majority’s inference that the plaintiff in that case had pursued equitable theories in its complaint, see Majority Opinion at 524-26 n. 11, 968 A.2d at 1258-59 n. 11, is certainly inconsistent with at least one court’s summary of the case. See Lobolito, Inc. v. North Pocono Sch. Dist., 722 A.2d 249, *532251 (Pa.Cmwlth.1998) (explaining that the plaintiff “filed an action ... alleging a breach of contract and seeking consequential damages”). Moreover, as a matter of record, the Lobolito appellant simply did not preserve any issues related to equitable claims before this Court. See Brief for Appellant at *5, Lobolito v. North Pocono Sch. Dist., No. 193 MAP 1999, 1999 WL 33657584 (Pa. Sept. 15, 1999) (setting forth the statement of the questions involved, confined to matters of contract). See generally Pa.R.A.P. 2116 (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”). Thus, it seems clear that the matter of other theories of relief was no more or no less waived in Lobolito than it is in this case, and that this Court’s examination of the complaint in Lobolito for equitable theories was, in fact, undertaken sua sponte.

Finally, according to the majority, it is inappropriate for either the parties or me to address the matter of the sufficiency of the underlying complaint to state a contract cause of action, because that issue is waived. See Majority Opinion at 522-23 n. 9, 968 A.2d at 1257 n. 9. However, despite its assertion of waiver challenging any discussion by others, the majority itself decides this issue. See Majority Opinion at 527, 968 A.2d at 1260 (applying Rules of Civil Procedure 1019 and 126, and concluding “[t]he Clients here simply did not plead facts sufficient to apprise the Attorneys that the Clients intended to allege a cause of action grounded in contract.”). Even aside from the implications of Lobolito, if the Court itself is going to address a legal issue, the parties and responding Justices should be free to do so as well. In other words, either this is a pure Rule 1925 waiver case, and the majority should confine itself to this rule’s application, or the proceedings should be open for all participants to address substantive questions which are also being decided by the Court.

. In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), this Court described the fact pleading approach as follows:

The notion that a complaint weds a plaintiff to a particular theory of liability is foreign to Pennsylvania pleading. Ours is a system of fact pleading, not ‘theory’ pleading; a plaintiff is free to proceed on any theory of liability which the facts alleged in his complaint will support.

Id. at 326 n. 8, 319 A.2d at 918 n. 8. I recognize that this perspective is in tension with other authority referenced by the majority and with our Rule of Civil Procedure 1020, where multiple causes of action are pursued in a complaint (as discussed below). In such circumstances, it would be best to provide clarification by recognizing the conflicts and either reconciling them or directly disapproving one line or the other of irreconcilable decisions where appropriate.

. In essence, the rules already require more than mere fact pleading in cases where the plaintiff seeks to pursue more than one cause of action.

. There are reasonable arguments to be made, however, that, given the complexity of modern litigation and experience with strategic behavior in pleading, we should move to a system where parties are expressly and consistently required to identify both the material facts and any or all pertinent causes of action. While I believe there are advantages to such a scheme, my position is that any changes should be made on a prospective basis, via rulemaking; upon the advice of the Civil Procedural Rules Committee; and after full opportunity for comment by the public and the bar.

. Bailey also suggests that the contractual duties owed by an attorney to his client (i.e., the basis for a contract cause of action) overlap with the duties owed to clients by the profession at large (or the basis for a tort cause of action). See id.

. Appellants framed the issue as follows:

Did the Superior Court err in holding that Count I of the Plaintiff's Complaint entitled "Professional Malpractice” actually set forth a cause of action for breach of contract where no reasonable reading of the Complaint would lead to this conclusion because it failed to set forth the required allegation of a specific contractual provision breached by the attorney or a specific instruction from the client which the attorney failed to follow.