Carmody, D. v. Post and Schell

J-A19036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

DON T. CARMODY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
POST AND SCHELL, P.C., SIDNEY R. : No. 3151 EDA 2022
STEINBERG, MARC H. PERRY, :
ANDREW W. ALLISON, AND ERIKA :
M. PAGE :

Appeal from the Order Entered November 10, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 201100106

BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 13, 2023

Don T. Carmody (Carmody) appeals pro se1 from the November 10,

2022 order of the Court of Common Pleas of Philadelphia County (trial court)

granting the motion for summary judgment on filed by Post & Schell, P.C.,

Sidney R. Steinberg, Marc H. Perry (Perry), Andrew W. Allison and Erika M.

Page (collectively, Appellees). We affirm.

I.

The trial court aptly summarized the facts of the instant case as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Carmody is an attorney licensed to practice in New York.
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On November 23, 2015, [Carmody] was involved in a motor
vehicle accident in Center City Philadelphia, when the taxicab in
which he was riding was struck by hit and run motorist. As a
result of this accident, [Carmody] suffered injuries and sought to
sue the taxicab driver, Favzi Abdullah; the taxicab company (who
he purported to be “215-Get-A-Cab”); and the unidentified driver
of the hit and run vehicle as he believed the accident was caused
by their combined negligence.

In December 2015, [Carmody] entered into a contingency fee
agreement with Post & Schell. After becoming dissatisfied with
the manner in which Post & Schell was handling his case,
[Carmody] asked for his file to be sent to him. [Carmody] stated
in his deposition that he failed to respond to any of Post & Schell’s
repeated efforts to contact him about his case after he received
his file, claiming that he “had no obligation to do so.” According
to [Carmody’s] deposition testimony, he and [Perry], a Post &
Schell attorney handling his case, had a phone conversation on
November 22, 2017 in which Mr. Perry stated that the statute of
limitations for [Carmody’s] tort claim was expiring on November
23, 2017, that Perry was under the impression that Post & Schell
no longer represented [Carmody], but that he would speak with
his general counsel regarding how to proceed. Later that same
day, [Carmody] filed a pro se Complaint (“pro se action”) against
the wrong entity, 215-Get-A-Cab.

On November 27, 2017, Mr. Perry, in abundance of caution since
it was unclear where Post & Schell’s representation stood, filed a
Complaint (“Post & Schell action”) on [Carmody’s] behalf against
the correct entities: taxicab driver Favzi Abdullah, AF Taxi Inc.,
and the Philadelphia Taxi Association, Inc. Due to the
Thanksgiving holiday, this complaint was timely filed before the
expiration of the statute of limitations. In [Carmody’s] deposition
testimony, he stated that Post & Schell’s filing of this complaint
was “unauthorized” and maintained that Post & Schell “no longer
represented me as of my filing of the pro se complaint.”

On October 15, 2018, the Honorable Shelly Robins New granted
Post & Schell leave to withdraw as counsel and gave [Carmody]
sixty (60) days to retain new counsel. He failed to procure new
counsel and failed to prosecute the Post & Schell action, explaining
in his deposition that he “had no responsibility as far as that case
was concerned, no obligations, no relationship to it. It had nothing
to do with me.” After failing to appear at his scheduled arbitration

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hearing on January 24, 2019, the Honorable Lisette Shirdan-
Harris entered a judgment of non-pros.

Subsequently, [Carmody] learned from 215-Get-A-Cab general
counsel Danielle Friedman, Esquire, that 215-Get-A-Cab was a
dispatch service only and not the owner of the taxicab company.
On April 8, 2019, [Carmody] lost his pro se action at arbitration
since he had sued the wrong entity. He did not file an appeal to
the Philadelphia Court of Common Pleas.

[Carmody] commenced the instant action against [Appellees] on
November 2, 2020. He asserted claims for (1) legal malpractice;
(2) intentional infliction of emotional distress; and (3) fraud. He
further sought punitive damages. [Carmody] filed Amended
Complaints on February 23, 2021, April 1, 2021, and May 5, 2021.

Trial Court Opinion, 3/31/23, at 2-4 (citations omitted). Appellees ultimately

filed a motion for summary judgment, which was granted following briefing by

both parties. Relevant to this appeal, the trial court concluded that Carmody

had failed to state a claim for legal malpractice because he did not obtain an

expert supporting his claim or show that he would have succeeded in his

underlying motor vehicle accident claim. It further held that the complaint

was untimely filed after the expiration of the statute of limitations, that

Carmody was not entitled to punitive damages, and that he was not entitled

to conduct additional discovery after the deadline for doing so had passed.

Carmody timely appealed and he and the trial court have complied with Pa.

R.A.P. 1925.2

____________________________________________

2 The trial court observed that Carmody’s concise statement of issues
complained of was “a disproportionally lengthy Statement of Errors for this
type of matter involving a limited number of issues.” Trial Court Opinion,
(Footnote Continued Next Page)

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II.

On appeal, Carmody contends that the trial court erred in granting

Appellees’ motion for summary judgment on his claim for legal malpractice

and punitive damages.3, 4 First, he argues that his complaint was timely filed

because Appellees’ malpractice was ongoing until they were granted leave to

withdraw from the underlying case in October of 2018. Next, he argues that

he can establish a claim for malpractice without expert testimony and that he

can prove the viability of his underlying motor vehicle accident claim. Because

he contends that the legal malpractice claim is cognizable, he asserts that he

is entitled to pursue punitive damages as well. Finally, he argues that the trial

court erred in granting summary judgment without allowing him to conduct

additional discovery pursuant to Pa. R. Civ. P. 1035.3(b).

____________________________________________

3/31/23, at 4. “In addition, this Statement of Errors is redundant and poorly
organized, making it difficult for [the trial court] to review his alleged errors.”
Id. at 4-5. While we agree that Carmody’s statement is not a model of clarity,
the trial court was able to discern the relevant issues and our review on appeal
is not hampered. Thus, we decline to find waiver.

3 Carmody has not challenged the trial court’s order as to the claims of
intentional infliction of emotional distress and fraud.

4 This Court’s scope of review of a trial court’s order granting summary
judgment is plenary and we apply the same standard for summary judgment
as does the trial court. [A]n appellate court may reverse a grant of summary
judgment if there has been an error of law or an abuse of discretion.” Weaver
v. Lancaster Newspapers, Inc., 926 A.2d 899, 902–03 (Pa. 2007) (internal
citations omitted). A de novo standard of review applies as to whether there
exists an issue of material fact, as this presents a pure question of law. Id.

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“Summary judgment is appropriate only in those cases where the record

clearly demonstrates that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law.” Atcovitz v.

Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa. R.C.P.

No. 1035.2. When considering a motion for summary judgment, the trial court

must construe all facts of record and make all reasonable inferences in the

light that most favors the non-moving party. See Toy v. Metro. Life Ins.

Co., 928 A.2d 186, 195 (Pa. 2007). Any question as to whether there exists

a genuine issue of material fact must be resolved against the moving party.

Id. For the purposes of summary judgment, the record includes pleadings,

depositions, answers to interrogatories, admissions, affidavits and expert

reports. Pa. R. Civ. P. 1035.1, 1035.4.

A.

We begin with Carmody’s argument related to the statute of limitations.

He argues that the Appellees committed malpractice when they filed the motor

vehicle lawsuit on November 27, 2017, without his authorization. He contends

that following his phone conversation with Perry, he believed that Appellees

no longer represented him and proceeded to file his pro se action based on

that belief. Thus, he contends that the lawsuit Appellees commenced in his

name was unauthorized and constituted legal malpractice. While he

recognizes that our Supreme Court rejected the “continuous representation

rule” for determining the statute of limitations for legal malpractice in Clark

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v. Stover, 242 A.3d 1253 (Pa. 2020), he insists that there should be an

exception when a lawsuit is pursued without a party’s express authorization.

Legal malpractice claims sounding in tort are subject to a two-year

statute of limitations. 42 Pa.C.S. § 5524(7). It is well-settled that

Pennsylvania observes the “occurrence rule” for the statute of limitations in

legal malpractice cases. “Under this rule, the statutory period commences

upon the happening of the alleged breach of duty.” Glenbrook Leasing Co.

v. Beausang, 839 A.2d 437, 441 (Pa. Super. 2003) (citation omitted). In

Clark, our Supreme Court considered whether to adopt the “continuous

representation rule” for claims of legal practice, which would toll the statute

of limitations for legal malpractice until the date the attorney’s representation

of the plaintiff was terminated. Clark, supra, at 1255. The High Court

rejected the rule, concluding that it was within the province of the General

Assembly, not the courts, to amend statutes of limitations or adopt new tolling

provisions. Id. at 1256-57.

Glenbook Leasing and Clark are dispositive of Carmody’s argument.

Though he contends that initiating a lawsuit without authorization should

constitute an exception to the occurrence rule, he cites no case law or statute

in support of this position and this Court cannot craft an extra-statutory tolling

exception to the statute of limitations. Clark, supra. Because Carmody

contends that Appellees’ malpractice occurred in November of 2017 by filing

suit without his authorization, he was required to file his suit by November of

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2019. The instant case, filed November 2, 2020, was untimely. Accordingly,

the trial court did not err in granting summary judgment on this basis.

B.

Though the statute of limitations is dispositive of Carmody’s case, we

briefly address the remaining arguments he raises on appeal. He claims that

summary judgment was inappropriate because he can prosecute his claim for

legal malpractice without expert testimony, and that he can establish that he

would have succeeded in recovering for his automobile accident but for

Appellees’ malpractice. He contends that filing a lawsuit without authorization

is the type of malpractice an ordinary juror can comprehend without expert

testimony, and the only issue of fact for the jury to decide was whether the

Appellees continued to represent him when they filed suit on his behalf.

A claim for legal malpractice is comprised of three elements: “1) the

employment of the attorney or other basis for 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.” Storm v. Golden, 538

A.2d 61, 64 (Pa. Super. 1988). The Storm Court concluded that expert

testimony is generally necessary to establish the second element of

malpractice:

Expert testimony becomes necessary when the subject matter of
the inquiry is one involving special skills and training not common
to the ordinary lay person. . . .

We expressly limit our holding to the present circumstances in
order to allow flexibility as to when expert evidence is needed.

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Legal malpractice claims run a wide gamut of circumstances from
clear cut claims of a breach of an attorney’s duty for allowing the
statute of limitations to run against the former client’s cause of
action to the complex determination required of a claim of breach
of duty involving the attorney’s choice of trial tactics in which a
layperson’s judgment obviously requires guidance. Between
these two extremes lie a myriad number of legal malpractice
actions for which the necessity of expert evidence to establish the
attorney’s duty and breach thereof will not be readily evident
without careful examination of the factual circumstances upon
which they arise.[] Generally, the determination of whether expert
evidence is required or not will turn on whether the issue of
negligence in the particular case is one which is sufficiently clear
so as to be determinable by laypersons or concluded as a matter
of law, or whether the alleged breach of duty involves too complex
a legal issue so as to warrant explication by expert evidence.

Id. at 64–65 (citations omitted, cleaned up). In analyzing the third element

of legal malpractice, a plaintiff must establish a “claim within a claim,” i.e.,

that but for the defendant’s malpractice, he would have recovered on his

underlying suit. See 412 N. Front St. Assocs., LP v. Spector Gadon &

Rosen, P.C., 151 A.3d 646, 657 (Pa. Super. 2016) (“Most problematic for

Appellants was that no allegation provided a causal connection between either

the alleged breach of contract or professional duty, respectively, and

Appellants’ proclaimed losses.”).

Our Rules of Civil Procedure require that a plaintiff in a professional

liability action file a certificate of merit within 60 days of filing his complaint

certifying that an “appropriate licensed professional” has found a “reasonable

probability” that the defendant caused the plaintiff’s harm through work

“outside acceptable professional standards.” Pa. R. Civ. P. 1042.3(a)(1).

Section (a)(2) of the rule allows for a certificate of merit based on the

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defendant’s responsibility to supervise another licensed professional’s work.

Pa. R. Civ. P. 1042.3(a)(2). Alternatively, the certificate may certify that

expert testimony “is unnecessary for prosecution of the claim.” Pa. R. Civ. P.

1042.3(a)(3).

Here, Carmody filed a certificate of merit under all three subsections of

the Rule. Pursuant to Section (a)(1), he asserted that he, as an attorney

licensed in New York, was an appropriate licensed professional who had

concluded that Post & Schell’s conduct fell outside of acceptable professional

standards in pursuing his motor vehicle accident claim. Under Section (a)(2),

he certified that Post & Schell was responsible for the conduct of the attorneys

it supervised who did not meet professional standards. Finally, under Section

(a)(3), he certified that the malpractice at issue did not require expert

testimony to establish. On appeal, he relies on this third basis to argue that

his certificate of merit was sufficient, claiming that expert testimony was not

necessary because the issue of the unauthorized filing of Post & Schell’s

complaint was a simple matter of “common sense” that could be understood

by a jury without expert analysis. Carmody’s Brief at 17.

We disagree. Here, Carmody claims that the malpractice at issue was

the filing of the Post & Schell’s complaint without his authorization. The

record, however, reveals that the issue of whether Appellees were justified in

believing that they had a duty to represent Carmody was more complex. For

instance, in October of 2016, Carmody asked Perry to send him a copy of his

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file for the motor vehicle accident case. Perry did so, along with a letter asking

Carmody to confirm his understanding that Appellees were no longer

representing him in the case. The letter additionally notified Carmody that

the statute of limitations on his claim would expire on November 23, 2017,

again based on Perry’s understanding that Carmody had terminated his

representation. Carmody did not respond to the letter, explaining in his

deposition that he had “no obligation to do so.” Depo. of Carmody, 5/31/22,

at 214. Perry apparently took this non-response as confirmation that the

relationship had terminated.

On the eve of the expiration of the statute of limitations, on November

21, 2017, Carmody contacted Perry for an update on the status of the matter.

Perry immediately responded and said that he believed the representation had

been terminated and that Carmody was no longer retaining Appellees to

represent him in the matter. When Carmody disputed this interpretation of

events, Perry informed him he would have to speak with his general counsel

to determine how to proceed. When Carmody did not hear back from Perry

that same day, he filed his pro se complaint. Perry timely initiated the Post &

Schell action on the following Monday to protect Carmody’s rights, but then

later sought to withdraw based on the breakdown in the relationship.

Carmody’s argument is based on contradictory premises: first, that that

attorney-client relationship was ongoing in November of 2017 and that

Appellees had failed to diligently pursue his case, and second, that Appellees

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did not have his authorization to file the Post & Schell complaint. Analysis of

this claim would require a jury to consider the October 2016 letter and the

circumstances leading up to the November 2017 conversations to determine

the status of Appellees’ representation of Carmody. These considerations

implicate best practices for terminating an attorney-client relationship and the

reasonableness of Perry’s beliefs about Carmody’s conduct, all of which are

outside the general understanding of a jury of laypeople. Accordingly, we

cannot conclude that Carmody would be able to establish malpractice without

expert testimony on these matters.

In any event, the trial court did not err in determining that Carmody had

failed to produce evidence that but-for Appellees’ alleged malpractice, he

would have recovered damages related to the motor vehicle accident.

Crucially, Carmody could not produce any evidence that the driver of his

taxicab was negligent. To the contrary, he testified at his deposition that the

taxicab had been stopped at a red light and then proceeded into the

intersection when the light turned green, at which point it was struck at a high

rate of speed by the hit-and-run driver. A witness at the scene of the accident

also reported to police that the taxi had been proceeding normally into the

intersection when it was struck by the hit-and-run driver. Neither Carmody,

Appellees nor the police ever identified the hit-and-run driver, who was

undoubtedly at fault for the accident and the proper defendant from whom to

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recover.5 While Carmody asserted that family members spoke with

Hahnemann Hospital security and viewed footage of the accident, they did not

identify the hit-and-run driver from this footage and no party was ever able

to secure a copy of the alleged video. Thus, even if Carmody had elected to

prosecute the lawsuit Appellees filed on his behalf, he was not able to establish

that he would have recovered for his injuries. With no causal connection

between the alleged malpractice and his proclaimed losses from the motor

vehicle accident, Carmody could not succeed on his malpractice claim. 412

N. Front St. Assocs., LP, supra. No relief is due.6

C.

Finally, Carmody contends that the trial court erred by granting

summary judgment without allowing him to seek discovery pursuant to Rule

of Civil Procedure 1035.3(b). See Pa. R. Civ. Pro. 1035.3(b) (“An adverse

party [to a motion for summary judgment] may supplement the record or set

____________________________________________

5Perry confirmed early in the case that Carmody did not have uninsured
motorist insurance with which he could file a claim for the accident.

6 Carmody summarily argues that “[i]n the event this matter is remanded, it

follows that, consequently, a path will exist for the recovery of punitive
damages and [he] should be entitled to prove up his entitlement to punitive
damages[.]” Carmody’s Brief at 19. However, as we have found that
Carmody’s claim is untimely and that he has failed to set forth a cause of
action for legal malpractice, he similarly has no cognizable basis to seek
punitive damages. See Weston v. Northampton Pers. Care, Inc., 62 A.3d
947, 961 (Pa. Super. 2013) (citation omitted) (“A request for punitive
damages does not constitute a cause of action in and of itself. Rather, a
request for punitive damages is merely incidental to a cause of action.”).

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forth the reasons why the party cannot present evidence essential to justify

opposition to the motion and any action proposed to be taken by the party to

present such evidence.”). He faults Appellees for not responding to his

interrogatories, expert interrogatories and requests for production of

documents and complains that the trial court should have allowed additional

time for him to seek discovery.

The trial court addressed this issue as follows:

A review of the docket in this matter shows that the discovery
deadline was June 6, 2022 and the expert deadline was July 1,
2022.[] During the discovery period, [Carmody] did nothing to
participate in discovery in any meaningful way. He did not take
any depositions, did not issue any subpoenas, and failed to
procure any expert reports. Indeed, [Carmody] was sanctioned
twice, on June 15, 2021 and on July 8, 2022, for failing to comply
with discovery requests from [Appellees]. [Carmody] only
appeared for a deposition after [Appellees] filed a motion to
compel him to appear.[] [Carmody] did not make any discovery
requests from [Appellees] until June 7, 2022, one day after the
discovery deadline had elapsed. Even though [Appellees] had no
obligation to respond to this untimely request, [Appellees] still
responded to [Carmody’s] request for admissions and turned over
their legal expert report. Furthermore, [Appellees] already
provided Plaintiff with his entire file upon his request. [Carmody]
does not state what other evidence he believes [Appellees] still
have in their possession. The record is clear that [Carmody] had
ample time during the discovery period to obtain any evidence he
required to prove his claims and he inexplicably chose not to do
so. There is nothing, if anything, he could obtain from [Appellees]
now that he could not have acquired prior to [Appellees] filing
their Motion for Summary Judgment. Moreover, [Carmody] has
repeatedly stated that he does not have and will not procure any
expert reports for his legal malpractice and intentional infliction of
emotional distress claims. Without expert evidence, both claims
fail and no other form of evidence he could purport to get from
[Appellees] can cure them. Accordingly, no relief is due.

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Trial Court Opinion, 3/31/23, at 15-16 (emphasis in original). We agree. The

record reveals that Carmody waited until the eve of the discovery deadline to

participate in the process and delayed producing his own responses to

Appellees’ timely discovery requests throughout the pendency of the case.

The trial court elected not to reward this gamesmanship by allowing him to

conduct additional discovery when he had ample time to do so before the

deadline expired and could not explain why additional time was warranted.7

This claim is meritless.

Order affirmed.

____________________________________________

7 Carmody insists that his discovery requests were timely filed on June 6,
2022. In their reply to his response to their motion for summary judgment,
Appellees attached an email from Carmody with his discovery requests that
was dated June 7, 2022, at 1:07 AM. The email noted it had forwarded the
requests “via Federal Express this evening, Pacific Time.” Reply Memorandum
in Further Support of Defendants’ Motion for Summary Judgment, 9/15/22,
Exhibit A. An accompanying FedEx receipt indicated that the materials were
shipped on June 7, 2022, and received by Appellees on June 13, 2022. Id.
Carmody asserts that he shipped the materials to Appellees from California at
7:53 PM on June 6, 2022. This was clearly not a good faith effort to comply
with the case management deadline or our Rules of Civil Procedure. See,
e.g., Pa. R. Civ. Pro. 4009.12(a) (granting parties 30 days to respond to
document requests); Pa. R. Civ. Pro. 4014(b) (granting parties 30 days to
respond to requests to admission unless deadline is altered by the court).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/13/2023

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