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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CURTIS C. PHILLIPS, JR., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPELLANT :
v. :
:
:
BRADLEY WARREN WEIDENBAUM, ESQ. :
:
: No. 2342 EDA 2016
Appeal from the Order Entered June 21, 2016
In the Court of Common Pleas of Northampton County
Civil Division at No(s): 2016-01495
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED APRIL 05, 2017
Appellant, Curtis C. Phillips, Jr., appeals pro se from the Order entered
in the Northampton County Court of Common Pleas sustaining the
Preliminary Objections filed by Bradley Warren Weidenbaum, Esq.
(“Appellee”), and dismissing Appellant’s Complaint. We affirm.
Appellee represented Appellant in an unrelated criminal matter. On
February 23, 2016, displeased by the outcome of his criminal case,1
1
After a trial, a jury convicted Appellant of three drug offenses, including
Possession with Intent to Deliver. 35 P.S. § 780-113(a)(30). On February
14, 2014, the trial court sentenced him to two to eight years’ incarceration.
On direct appeal, this Court concluded Appellant’s issues were meritless, but
sua sponte vacated and remanded for resentencing after finding that
Appellant had received an illegal mandatory minimum sentence under 18
Pa.C.S. § 7508. See Commonwealth v. Phillips, No. 2168 EDA 2014 (Pa.
Super. filed June 21, 2016).
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Appellant filed the instant legal malpractice action against Appellee asserting
claims of Breach of Contract, Negligence, and violation of the Unfair Trade
Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq.
Appellant also sought attorney’s fees and punitive damages.
On March 28, 2016, Appellee’s counsel entered his appearance, and
filed a Demand for a Jury Trial and a Notice of Intention to Enter Judgment
of Non Pros pursuant to Pa.R.C.P. No. 1042.7, based upon Appellant’s failure
to file a Certificate of Merit. On April 1, 2016, Appellant filed a Certificate of
Merit.
On April 4, 2016, Appellee filed Preliminary Objections in the nature of
demurrer to Appellant’s Complaint, seeking dismissal of the Complaint on
the grounds of (1) in pari delicto;2 (2) the legal insufficiency of the Breach of
Contract and Negligence claims; (3) the inapplicability of the UTPCPL to the
legal profession; and (4) the failure to support request for attorney’s fees.
The final Preliminary Objection was in the form of a Motion to Strike the
Complaint in its entirety for Plaintiff’s alleged failure to comply with Pa.R.C.P.
No. 1024 requiring proper verification of the Complaint.
On April 18, 2016, Appellant filed a letter seeking an extension of time
in which to reply to the Preliminary Objections and averring that the
Prothonotary of the Northampton County Court of Common Pleas refused to
2
This doctrine essentially provides that a plaintiff who participated in
wrongdoing may not recover damages from the wrongdoing.
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file a Praecipe for Default Judgment that he had allegedly sent along with his
Certificate of Merit on April 1, 2016.
On June 21, 2016, the trial court sustained the majority of the
Preliminary Objections.3 With respect to Appellee’s Preliminary Objection in
the nature of a Motion to Strike the Complaint for failure to file a proper
verification, the court stated:
As [Appellee] points out, the Complaint in the instant matter is
wholly unverified. Indeed, it contains a Notice to Plead and a
Certificate of Service, but it is not verified. Consequently, the
Court must strike the Complaint in its entirety. However,
pursuant to Pa.R.C.P. 1028(d), the Plaintiff shall have thirty (30)
days within which to file an amended pleading consistent with
this Order of Court and Statement of Reasons.
Trial Court Order, 6/21/16, at 13.
Appellant did not file an Amended Complaint. Rather, Appellant filed a
Notice of Appeal dated July 20, 2016, which the Court of Common Pleas
received on July 26, 2016, seeking review of the dismissal of the Complaint
entered by the court on June 21, 2016. Appellant stated in that Notice, that
he “hereby clearly indicates his intent to stand on the Complaint as filed.”
Notice of Appeal, dated 7/20/16.4
Appellant and the trial court complied with Pa.R.A.P. 1925.
3
The court overruled Appellee’s Preliminary Objection pertaining to in pari
delicto, but sustained all of the other Preliminary Objections.
4
Upon the expiration of the 30 days in which the court permitted Appellant
to amend his Complaint, the June 21, 2016 Order became final and
appealable.
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Appellant raises the following six issues on appeal:
1. Did the Northampton County Court of Common Pleas
commit reversible error when the court Prothonotary
refused to file a timely and properly submitted Praecipe for
Default Judgment filed by the then pro se [Appellant]?
2. Did the Northampton County Court of Common Pleas
commit reversible error when the court Prothonotary
removed from the court file a properly submitted and
briefed Responsive Preliminary Objections – and
subsequently refused to consider any part of [Appellant’s]
argument – filed by the pro se [Appellant] in response to
[Appellee’s] Preliminary Objections?
3. Did the Northampton County Court of Common Pleas
commit reversible error when it failed to acknowledge the
facts set forth by [Appellant] as the basis of a legally
binding oral contract, and concluded that the lawyer-client
relationship did not ensue when [Appellee] had made the
oral contract referred to within [t]he Complaint, nor when
[Appellee] had been paid a retainer fee for his services,
but rather when an un-dated, un-signed written “fee
agreement” – which was based upon the agreements of
the identified oral contract – was forwarded to [Appellant]
after [Appellee] had received payment for his services?
4. Did the Northampton County Court of Common Pleas
commit reversible error when it dismissed the Negligence
claim within [t]he Complaint under Bailey v. Tucker as
opposed to staying the prosecution pending final
disposition of the appeal of the underlying criminal matter
as [t]he Bailey Court indicates should be done?
5. Did the Northampton County Court of Common Pleas
commit reversible error when it concluded that [Appellee’s]
fraudulent retaining practices as alleged within [t]he
Complaint fell under the “practice of law” language within
Byers v. Richmond, 594 Pa. 694 (2007) pursuant to
Commonwealth v. Cole, 709 A.2d 994, 997 (Pa.
Commw. 1999), appeal denied, 558 Pa. 611, 737 A.2d 606
(Pa. 1999)?
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6. Did the Northampton County Court of Common Pleas
commit reversible error when it dismissed [t]he
[C]omplaint for a failure to verify due to the fact that
[Appellant] signed [t]he Complaint on page 18 thereof
which embodied the same legal force of a formal
verification pursuant to Pa.R.C.P. 1023.1, as well as that
[Appellant] did in fact file an amended verification form
with [t]he [c]ourt upon receipt of [Appellee’s] objections?
Appellant’s Brief at 2-3.5
In Appellant’s first issue, he claims that the trial court Prothonotary
improperly refused to accept and docket Appellant’s Praecipe for Entry of
Default Judgment on count 1 (breach of contract), which he purports to have
sent along with a Certificate of Merit, on March 29, 2016. Id. at 4.
Appellant claims that the Prothonotary denies having received the Praecipe
and supporting documentation; but notes that the Prothonotary did file the
Certificate of Merit, which was part of the same paperwork. Id. Appellant
argues that, because he properly sent the Prothonotary the Praecipe for
Entry of Default Judgment, there was no reason for the court not to enter
Judgment in his favor. Id. at 5.
The June 21, 2016 Order, which is the subject of this appeal, did not
address the issue Appellant purports to challenge in his first claim. The
5
Appellant has also included in the argument portion of his Brief a three-
paragraph section titled “Remainder of the Order.” Because Appellant did
not raise these issues in his Statement of Questions Involved, these issues
are waived. See Pa.R.A.P. 2116(a); see also Thomas v. Elash, 781 A.2d
170, 176-77 (Pa. Super. 2001) (reiterating that “an appellant must present
all issues on appeal in the Statement of Questions Involved section of his
brief.”).
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appealed order merely sustained in part and denied in part Appellee’s
Preliminary Objections. As the trial court noted, “this issue is addressed to
actions or omissions alleged of the Prothonotary, and it is beyond the scope
of the June 21, 2016 Order of Court that is the subject of this appeal.” Trial
Ct. Op. at 2.
We further note that, pursuant to Pa.R.A.P. 2115(b), Appellant was
required to include a statement in his Brief immediately following the
Statement of Jurisdiction detailing the alleged failure of the Prothonotary to
act and a brief citation of the statute under which it is claimed such action is
required. Appellant did not do so. Instead, he simply indicates he is seeking
review of the dismissal of the Complaint following the grant of Appellee’s
Preliminary Objections. See Appellant’s Brief at 1.
Finally, even assuming arguendo that Appellant had attempted to file a
Praecipe of Default Judgment based on Appellee’s failure to respond timely
to the Complaint, such Praecipe would have been rejected by the
Prothonotary. Pursuant to our rules of civil procedure, in a professional
liability action, a defendant is allowed twenty days after service of the
Certificate of Merit to file a responsive pleading. Pa.R.C.P. No. 1042.4.
Since Appellant alleges that he sent the Praecipe at the same time as the
Certificate of Merit, filing the Praecipe for Default Judgment would have been
premature. Appellant’s first issue has no merit.
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Appellant next avers that the trial court Prothonotary erred in
removing his “Responsive Preliminary Objections” from the docket.
Appellant’s Brief at 5.6 He also claims that trial court erred in not
considering his “Responsive Preliminary Objections” before ruling on
Appellee’s Preliminary Objections, even though Appellant forwarded a copy
of them to the trial court judge assigned to rule on the Preliminary
Objections. Id.
As the trial court observed, this issue is beyond the scope of the June
21, 2016 Order from which this appeal is taken. See Trial Ct. Op. at 2.
Moreover, Appellant again failed to include a statement pertaining to the
Prothonotary’s challenged action immediately after the Statement of
Jurisdiction, as required by Pa.R.A.P. 2115(b). Moreover, he has not cited to
any authority to support of his claim of alleged error. Therefore, we find this
issue waived. See Pa.R.A.P. 2119(a); In re Estate of Whitley, 50 A.3d
203, 210-11 (Pa. Super. 2012) (holding that the ”[f]ailure to cite relevant
legal authority constitutes waiver of the claim on appeal.” (citation
omitted)).
6
Annexed to Appellant’s Brief as Exhibit “B” is a copy of a document entitled
“Plaintiff’s Preliminary Objections to Defendant’s Preliminary Objections” with
a court of common pleas file stamp dated May 19, 2016, with a giant X and
scribbles drawn over it.
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Appellant’s final four issues challenge the trial court’s Order sustaining
Appellee’s Preliminary Objections and dismissing Appellant’s Complaint. We
are guided by the following standard:
Our standard of review of an order of the trial court
overruling or granting preliminary objections is to
determine whether the trial court committed an error of
law. When considering the appropriateness of a ruling on
preliminary objections, the appellate court must apply the
same standard as the trial court.
Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint. When considering
preliminary objections, all material facts set forth in the
challenged pleadings are admitted as true, as well as all
inferences reasonably deducible therefrom. Preliminary
objections which seek the dismissal of a cause of action
should be sustained only in cases in which it is clear and
free from doubt that the pleader will be unable to prove
facts legally sufficient to establish the right to relief. If any
doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
preliminary objections.
Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012), quoting
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).
In his third issue, Appellant claims the trial court erred in concluding
that he had failed to plead sufficiently a Breach of Contract legal malpractice
claim. Although Appellant concedes that the parties had not incorporated
certain oral terms into the written contract they ultimately executed, he
nonetheless claims that Appellee was legally bound to perform the tasks he
had orally agreed to perform and the failure to do so constituted a breach of
contract. Appellant’s Brief at 6-8.
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A legal malpractice claim may be brought by an aggrieved client in an
action sounding in tort and/or breach of contract. Wachovia Bank, N.A. v.
Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007).
The elements of a legal malpractice action, sounding in
negligence,[7] include: (1) employment of the attorney or
other basis for a duty; (2) failure of the attorney to
exercise ordinary skill and knowledge; and (3) that such
failure was the proximate cause of the harm to the
plaintiff. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108,
112 (1993). With regard to a breach of contract claim, “an
attorney who agrees for a fee to represent a client is by
implication agreeing to provide that client with professional
services consistent with those expected of the profession
at large.” Id. at 115.
Id. at 570-71. See also CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053,
1058 (Pa. Super. 1999) (“A cause of action for breach of contract must be
established by pleading (1) the existence of a contract, including its essential
terms, (2) a breach of a duty imposed by the contract and (3) resultant
damages.”). Therefore, where, as here, a complaint asserts a legal
malpractice claim sounding in both tort and contract, the plaintiff/former
client is required to prove that the attorney breached a duty owed to him,
and that the breach caused him to suffer damages.
Generally, if parties to an oral contract agree on the essential terms of
the contract and intend to be bound by them, they have formed a valid legal
contract, even if they intend also to incorporate these terms, and possibly
7
Traditionally, our courts have treated claims of professional negligence
alleging criminal defense malpractice as trespass actions. See Bailey v.
Tucker, 621 A.2d 108, 112 (Pa. 1993).
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others, in a written contract at a later date. Krause v. Great Lakes
Holdings, Inc., 563 A.2d 1182, 1186 (Pa. Super. 1989). However, if the
parties contemplate that their agreement is not final until it is reduced to
writing, they have not formed a valid legal contract until so doing. Id.
In the Complaint, Appellant alleged that, when the parties met to
discuss the possibility of a lawyer-client relationship, Appellant set forth a
number of tasks Appellant expected Appellee to perform, and Appellee
agreed to such performance. See Complaint, 2/23/16, at ¶¶ 5, 6, 8-10.
However, Appellant also asserted in the Complaint that the lawyer-client
relationship did not begin until the execution of a “written retainment [sic]
fee agreement and contract with [Appellee] for these services [that]
commenced on May 18, 2013.” Id. at ¶ 11. Appellant’s Complaint
specifically claims that, though “[t]hese claims arise out of specific oral
agreements made between [Appellant] and [Appellee,]” they were solidified
through[] entry into a legally binding contract.” Id. at ¶ 4.
Our review of the written contract appended to Appellant’s Complaint
reveals that the contract does not include any specific tasks for
performance; rather, it provides that “[Appellee’s] firm agrees to exert its
best efforts to obtain the best possible results in [Appellant’s] case.” Letter,
May 20, 2013. Appellant has not pleaded any facts that demonstrate that
Appellee did not exert his “best efforts to obtain the best possible results” in
Appellant’s criminal case, or any facts upon which the trial court could
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conclude that Appellee failed to provide legal services consistent with the
relevant standard of care.
It is clear from the Complaint that Appellant pleaded that his Breach of
Contract claim arose from the written agreement between the parties, and
not from the terms to which he and Appellee allegedly orally agreed. It is
also clear that, in failing to plead with specificity the standard of care, or
how the services provided by Appellee fell below the standard of care,
Appellant failed to plead facts legally sufficient to establish his right to relief.
Accordingly, the trial court did not err in sustaining Appellee’s Preliminary
Objection as to Appellant’s Breach of Contract claim.8
In his fourth issue, Appellant challenges the trial court’s reliance on
Bailey, supra, in dismissing his Negligence claim. He claims that the trial
court erroneously interpreted Bailey to require, inter alia, that he plead in
his Complaint that he has “pursued post-trial remedies and obtained relief
which was dependent upon attorney error.” Appellant’s Brief at 9, citing
Bailey, 621 A.2d at 115. Appellant argues that Bailey only requires that he
be able to establish this fact at some point prior to a final disposition in his
8
Alternatively, Appellant argues that the trial court erred in finding the
written fee agreement between the parties to be a legally enforceable
contract because its terms were too ambiguous to be enforceable.
Appellant’s Brief at 7. Appellant also avers that the written fee agreement is
not enforceable because the parties did not sign it. Id. at 7-8. These
claims, if true, would render his Breach of Contract action void ab initio.
Accordingly, we do not consider them to be valid alternate arguments
requiring our review.
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legal malpractice case. Id. Appellant argues that the court should have
stayed his claim pending final disposition of his criminal matter. Our review
indicates, however, that Appellant has misapprehended the totality of the
basis for the trial court’s ruling.
In Bailey, our Supreme Court articulated the following required
elements for a trespass-negligence based legal malpractice claim stemming
from representation in a criminal matter.
… [T]oday we hold that a plaintiff seeking to bring a
trespass action against a criminal defense attorney,
resulting from his or her representation of the plaintiff in
criminal proceedings, must establish the following
elements:
(1) The employment of the attorney;
(2) Reckless or wanton disregard of the defendant’s
interest on the part of the attorney;
(3) the attorney’s culpable conduct was the
proximate cause of an injury suffered by the
defendant/plaintiff, i.e., “but for” the attorney’s
conduct, the defendant/plaintiff would have obtained
an aquittal [sic] or a complete dismissal of the
charges.
(4) As a result of the injury, the criminal
defendant/plaintiff suffered damages.
(5) Moreover, a plaintiff will not prevail in an action
in criminal malpractice unless and until he has
pursued post-trial remedies and obtained relief which
was dependent upon attorney error; additionally,
although such finding may be introduced into
evidence in the subsequent action it shall not be
dispositive of the establishment of culpable conduct
in the malpractice action.
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Id. at 114-15 (footnotes omitted).
The Bailey Court further explained that if an attorney defendant is
served with a Complaint alleging professional malpractice in a criminal
matter, the defendant may file a Preliminary Objection in the nature of a
demurrer. The Court instructed that the “trial court shall then reserve its
ruling on said objection until the resolution of the post-conviction criminal
proceedings.” Id. at 115 n.13.
The trial court explained its application of Bailey to the instant facts
as follows:
In this case, while Defendant/Appellee based his demurrer
in part on the fact that the Plaintiff/Appellant’s appeal was
still pending, he also argued Plaintiff/Appellant’s failure to
plead the second and third elements of his claim,
specifically that Defendant/Appellee acted in “reckless or
wanton disregard” for Plaintiff/Appellant’s interests and
that, but for such culpable conduct, Plaintiff/Appellant
would have been acquitted or his charges dismissed. In
sustaining the demurrer, the [c]ourt reviewed the claim
and found it legally insufficient to withstand demurrer.
Although not expressly stated in the [c]ourt’s [prior]
opinion, this finding was premised not only on the
pendency of Plaintiff/Appellant’s appeal of his criminal
matter, but also on his failure to plead the second and
third elements of his claim.
Trial Ct. Op. at 3-4.
Our review of Appellant’s Complaint confirms the trial court’s finding
that Appellant failed to plead the second and third Bailey factors, and this
failure was fatal to Appellant’s claim. This issue, therefore, lacks merit.
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In his fifth issue, Appellant challenges the trial court’s determination
that the allegations in the Complaint fell within the definition of “practice of
law,” which therefore barred Appellant from raising a claim under the
UTPCPL. Appellant’s Brief at 10. Appellant argues that he alleged that
Appellee engaged in “fraudulent and deceptive retaining practices,” which
claim is cognizable under the UTPCPL. Id. Appellant avers that, since he
properly raised a claim under the UTPCPL, the court erred in dismissing this
count of his Complaint. Id.
The UTPCPL creates a private right of action for “[a]ny person who
purchases or leases goods or services primarily for personal, family[,] or
household purposes and thereby suffers any ascertainable loss of money or
property, real or personal, as a result of the use or employment by any
person of a method, act[,] or practice declared unlawful by section 3 [] of
[the] act . . ..” 73 P.S. § 201-9.2(a). In 2007, however, the Pennsylvania
Supreme Court found the UTPCPL inapplicable to the legal profession.
Beyers v. Richmond, 937 A.2d 1082 (Pa. 2007).
Notwithstanding the holding in Beyers, without citing to any
controlling authority, Appellant argues that claims that an attorney engaged
in fraudulent and deceptive retaining practices are permissible under the
UTPCPL. Because Appellant has not supported this argument with citation to
controlling authority, we find this claim waived. See Pa.R.A.P. 2119(a).
Moreover, even if it were not waived, this Court is bound by the precedential
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decision of the Pennsylvania Supreme Court in Beyers, and, thus,
Appellant’s claim would fail.
In his final issue, Appellant claims that the court erred in dismissing
his Complaint pursuant to Pa.R.C.P. No. 10249 because he filed a “matter of
course amendment to the Complaint[,]” which was properly verified.
Appellant’s Brief at 11. Appellant has, again, failed to support this argument
with citation to any authority. Accordingly, it is also waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2017
9
Rule 1024 provides that: “every pleading containing an averment of fact
not appearing of record in the action or containing a denial of fact shall state
that the averment or denial is true upon the signer’s personal knowledge or
information and belief and shall be verified. The signer need not aver the
source of the information of expectation or ability to prove the averment or
denial at the trial. A pleading may be verified upon personal knowledge as
to a part and upon information and belief as to the remainder.” Pa.R.C.P.
No. 1024(a).
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