by Mark Bauman | Oct 4, 2013 | Legal Malpractice, Other Venues, Successes
Marshall L. Schwartz recently prevailed in the Superior Court after the plaintiff failed to file a certificate of merit and a judgment of non pros was entered in the Court of Common Pleas of Philadelphia County.
The attorney represented by Mr. Schwartz and Mr. Brien represented the plaintiff in four separate matters: the filing of a writ of habeas corpus, representation in an extradition proceeding, an appeal of the denial of an expungement petition, and an appeal of the denial of an assessment of costs and modification of sentence. The plaintiff alleged that his representation in each of these matters was deficient and filed a complaint with causes of action for malpractice, breach of contract, unjust enrichment, and negligence. However, he did not file a certificate of merit.
Accordingly, the defendant filed a Notice of Intention to Enter Judgment of Non Pros of Professional Liability Claim. The plaintiff responded by filing a Motion to Determine Necessity of Certificate of Merit. The Honorable William J. Manfredi denied the motion and ordered the plaintiff to file a certificate of merit.
Prior to the deadline to file a certificate of merit, the plaintiff filed a “Motion to Place This Matter In Deferred Status.” When the deadline elapsed, the defendant entered a judgment of non pros. The plaintiff filed a Petition to Strike And/Or Open Judgment of Non Pros. The Honorable Marlene F. Lachman issued an Order denying the petition. The plaintiff appealed.
The Superior Court affirmed the Order of Judge Lachman. In a Memorandum authored by the Honorable Jacqueline O. Shogan, the Superior Court found that a certificate of merit was required for each cause of action in the plaintiff’s complaint because each implicated the attorney’s overall exercise of care and professional judgment in carrying out his work for the plaintiff. Additionally, even if no expert testimony was required at trial, the plaintiff was still required to file a certificate of merit stating as such as set forth by the Pennsylvania Rules of Civil Procedure.
The Superior Court further held that the plaintiff’s Motion to Determine Necessity of Certificate did not constitute a motion for an extension of time to file a certificate of merit, which would have prevented the defendants from entering a judgment of non pros while the motion was pending. Finally, the Superior Court held that the plaintiff’s complaint did not set forth a meritorious cause of action, a requirement to open a judgment of non pros.
by Mark Bauman | Oct 4, 2013 | ADR, Legal Malpractice, Successes
Anthony P. DeMichele successfully defended an attorney and his firm at arbitration in a matter involving claims of professional negligence. The plaintiff was a musician and music producer who claimed that he entered into a contract with a legendary music artist to produce for distribution original songs written and performed by the legendary music artist. Plaintiff claimed that the legendary music artist breached the contract, and as a result, Plaintiff filed a lawsuit seeking damages for the alleged breach of contract. Plaintiff retained the services of several attorneys to pursue his breach of contract claim. After a default judgment was obtained in the breach of contract claim, Plaintiff presented his case for damages at an assessment of damages hearing in Philadelphia County Court of Common Pleas. However, after hearing testimony from expert witnesses for both Plaintiff and the legendary music artist, the judge determined that no monetary damages were suffered and awarded no damages to the plaintiff. As a result of that decision, the plaintiff filed suit against all of the attorneys who represented him in his breach of contract claim. Plaintiff alleged that, due to a poorly drafted complaint and failure to present sufficient evidence at the assessment of damages hearing, he suffered the loss of the monetary damages he was entitled to under the terms of the contract he entered into with the legendary music artist. Mr. DeMichele and Mr. Brien represented the attorney and his firm who handled the assessment of damages hearing.
With regard to the allegedly deficient complaint, Plaintiff argued that the default judgment should have been opened and the complaint amended in order to correct the alleged deficiencies. Defendants countered that it was an appropriate strategy to preserve the default judgment and not open the default judgment in order to amend the allegedly deficient complaint. Further, Defendants argued that sufficient expert testimony and exhibits were presented at the assessment of damages hearing, which were entered into evidence without objection from opposing counsel. Defendants also presented evidence that any potential judgment in the underlying breach of contract claim was uncollectible because the estate for the legendary music artist had no assets. The inability to collect a judgment is an affirmative defense to a legal malpractice claim. The arbitration panel agreed with Defendants arguments and entered an award in favor of Defendants on all claims.
by Mark Bauman | Sep 3, 2013 | Legal Malpractice, Philadelphia, Successes
Anthony P. DeMichele and Jeffrey P. Brien recently obtained summary judgment for an attorney and law firm in a legal malpractice action venued in the Court of Common Pleas of Philadelphia County. The Order dismissing all claims against the Firm’s clients was entered by the Honorable John M. Younge.
The plaintiff was injured when a crane fell on him at work. He retained the Firm’s clients to represent him in a Workers’ Compensation Action. After a period of time in which the plaintiff received significant medical treatment which was paid for by his employer’s Workers’ Compensation insurance carrier, the plaintiff was no longer receiving medical treatment. His employer offered him a light duty position. The plaintiff refused and his employer filed a petition to suspend his wage benefits.
While the petition was pending, the Firm’s clients negotiated a settlement for the plaintiff wherein he would receive three additional years worth of wage benefits in addition to the two years that he had already received. The plaintiff agreed to the settlement and it was approved by the Workers’ Compensation Judge after the plaintiff was colloquyed under oath.
Meanwhile, the plaintiff also settled his third party action for a significant sum. However, this sum was apparently less than the plaintiff was expecting. The plaintiff initiated a legal malpractice action against the Firm’s clients as well as the attorneys who represented him in the third party action. These attorneys entered into a joint-tortfeasor agreement with the plaintiff during the pendancy of the legal malpractice action.
The plaintiff alleged that the Firm’s clients breached their agreement with the plaintiff by advising him to settle the Workers’ Compensation action. Specifically, the plaintiff alleged that, had he known that his third party action would be settled for an “inadequate” amount, he would not have agreed to settle the Workers’ Compensation action.
In the motion for summary judgment, Mr. DeMichele and Mr. Brien argued that plaintiff’s cause of action was barred because he was merely a dissatisfied litigant who was now seeking a larger monetary settlement. As the plaintiff’s cause of action would require an impermissible degree of speculation, it could not go forward. In addition, they argued that there was no evidence that the Firm’s client had breached their agreement with the plaintiff.
UPDATE:
On appeal, the Pennsylvania Superior Court upheld the entry of summary judgment for the Firm’s clients. In a published opinion, the Honorable Anne E. Lazarus, joined by the Honorable Jack A. Panella and the Honorable David N. Wecht, found that the plaintiff’s claim that he did not voluntarily enter into the workers’ compensation settlement was not supported by the record. In particular, the court noted that the plaintiff underwent a thorough colloquy prior to the approval of his workers’ compensation settlement. He stated under oath that he understood the effects of the settlement, that he had enough time to think about his decision to enter the settlement, and that he wanted the settlement to be approved.
Since there was no evidence that the plaintiff’s assent to the settlement was involuntary, the Superior Court held that his legal malpractice action was barred under Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991). Unless the plaintiff had pled and could prove that he was fraudulently induced to settle the workers’ compensation action, or he could prove that defendants failed to explain the effect of that settlement to him, or that the settlement was somehow legally deficient, he did not have a viable cause of action for negligence.
The court held that it was clear that the Firm’s clients were entitled to judgment as a matter of law.
by Mark Bauman | Aug 16, 2012 | Legal Malpractice, Other Venues, Successes
UPDATE: Third Circuit Upholds Grant of Summary Judgment on Appeal
Following the events described below, the legal malpractice insurer filed an appeal to the United States Court of Appeals for the Third Circuit. The Third Circuit affirmed the grant of summary judgment for the Firm’s client on the basis that he was not a joint tortfeasor with the third attorney, who allowed a default judgment to be entered.
Oral argument was conducted by Dan Ryan. You can read coverage of the argument by The Legal Intelligencer HERE.
In its opinion, the court held that it was appropriate to apply the multifactor test to determine whether the Firm’s client and the third attorney were joint tortfeasors. The court found that the two attorneys owed different duties to the business owners and years passed between their actions. Finally, the court found that the default judgment may have been a direct result of the actions of the Firm’s client, but it was caused solely by the actions of the third attorney. Therefore, the two attorneys did not cause a single, unapportionable injury to the business owners and the two attorneys were not jointortfeasors.
Since this determination alone was sufficient to affirm Judge Tucker’s grant of summary judgment, the Third Circuit did not reach the question of whether the Firm’s client was a proximate cause of any harm to the business owners.
Marshall L. Schwartz obtained summary judgment in the United States District Court for the Eastern District of Pennsylvania on behalf of an attorney in a legal malpractice case. The Firm’s client had represented business owners in a Bucks County township whose application for an occupancy permit was denied. The business owners felt that the permit was denied for improper reasons and sought to bring suit against the township and certain township officials. The Firm’s client prepared a complaint with RICO and civil rights causes of action but declined to continue with his representation of the business owners. The business owners filed the complaint pro se.
The business owners then retained a second attorney to pursue the federal action. The federal action was eventually dismissed. Three township officials then sued the business owners under the Dragonetti Act, alleging wrongful use of civil proceedings. A third attorney was retained to defend the business owners. However, he failed to file an answer to the Dragonetti Act complaint and a default judgment was taken.
Liability having been admitted through the default judgment, a trial on damages returned a verdict of $3,030,000 against the business owners. The business owners then sued their third attorney for legal malpractice. The third attorney’s legal malpractice insurer resolved both of these actions through the payment of $1,500,000 to the township officials.
The legal malpractice insurer then sued the Firm’s client and the second attorney for contribution, alleging that they were also negligent in their representation of the business owners. At the close of discovery, summary judgment motions were filed.
The Honorable Petrese B. Tucker granted the Firm’s motion, finding that its client could not be a joint tortfeasor with the third attorney, a requirement for contribution. Judge Tucker also granted summary judgment as to the Firm’s second argument, that its client was not a proximate cause of any harm to the business owners as the subsequent events were not foreseeable. After granting summary judgment for the Firm’s client, Judge Tucker held that summary judgment was also appropriate for the second attorney on the same grounds.
You can read the December 28, 2011 story on this case published in The Legal Intelligencer HERE.
