J-A14022-17 J-A14023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BONNIE CRUICKSHANK-WALLACE AND IN THE SUPERIOR COURT OF WILLIAM WALLACE PENNSYLVANIA
Appellants
v.
CNA FINANCIAL CORPORATION AND CONTINENTAL CASUALTY COMPANY AND COLUMBIA CASUALTY COMPANY AND JAMES S. TUPITZA, ESQUIRE AND TUPITZA & ASSOCIATES, P.C.
No. 2403 EDA 2016
Appeal from the Order July 11, 2016 In the Court of Common Pleas of Chester County Civil Division at No(s): No. 2013-10242
BONNIE CRUICKSHANK-WALLACE AND IN THE SUPERIOR COURT OF WILLIAM WALLACE PENNSYLVANIA
GERARD P. EGAN, ESQUIRE AND EGAN YOUNG LAW FIRM AND NEIL E. JOKELSON, ESQUIRE AND NEIL E. JOKELSON & ASSOCIATES
No. 2621 EDA 2016
Appeal from the Order Dated July 12, 2016 In the Court of Common Pleas of Chester County Civil Division at No(s): No. 2013-11158
BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ. J-A14022-17 J-A14023-17
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 25, 2017
Bonnie Cruickshank-Wallace (“Wife”) and William Wallace (“Husband)
(collectively “Appellants”) appeal from orders granting summary judgment to
the defendants and dismissing these actions. We affirm.
Both of these appeals involve the same underlying facts, so we have
consolidated them for the sake of judicial economy. Three other lawsuits are
pertinent to the procedural history of these matters.
Mercantile versus Husband and Wife
In 1998, Mercantile County Bank (“Mercantile”) filed an action against
Wife, Husband, and Husband’s company. Mercantile had loaned Husband
and his company approximately $750,000, which was not repaid. Mercantile
joined Wife as a party defendant based upon its position that Husband had
made fraudulent conveyances to her that could be used to satisfy the debt
incurred by Husband and his company. The trial court in that case concluded
that Wife was liable to Mercantile for $20,000 in fraudulent transfers made
to her.
Wife versus Mercantile
Even though Mercantile had prevailed against her in the action that it
brought, Wife thereafter filed a lawsuit against Mercantile for abuse of
process. In that case, Wife was represented by Klehr, Harrison, Harvey,
Branzburg, & Ellers (“Klehr”). Husband was not a party plaintiff, and
Mercantile prevailed in the abuse of process action Wife brought against it.
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Wife versus Klehr
Wife then instituted an action against Klehr for legal malpractice in
connection with Klehr’s representation of her in the abuse-of-process case
against Mercantile. Husband was not a named plaintiff in the lawsuit against
Klehr. Klehr filed a counter-claim against Wife for unpaid legal bills. Wife
initially was represented by Gerard P. Egan, Esquire and the Egan Young
Law Firm (“Egan”). Egan hired Neil E. Jokelson, Esquire, of Neil E. Jokelson
& Associates (“Jokelson”) as the expert witness in the legal malpractice suit
against Klehr, and Mr. Jokelson issued an opinion that Klehr committed legal
malpractice in connection with Klehr’s representation of Wife in her case
against Mercantile. Klehr was granted summary judgment on Wife’s legal
malpractice claim.
After summary judgment was entered against Wife on her cause of
action, Wife fired Egan and hired Anne DelCollo, Esquire. Ms. Delcollo
defended Wife on the counter claim presented by Klehr, but Klehr prevailed
and was awarded unpaid legal fees in the amount of $46,661.31.
Wife terminated the services of Ms. DelCollo and hired James S.
Tupitza of Tupitza and Associates PC (“Tupitza”) for purposes of appealing
the trial court’s decisions. Tupitza did not file a court-ordered Pa.R.A.P.
1925(b) statement, and Wife did not prevail in her appeal in the Klehr
lawsuit.
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Present Two Actions
Husband and Wife filed a legal malpractice case at civil action number
2013-11158 against Egan and Jokelson, and they have proceeded pro se
throughout these proceedings. Even though the pleadings averred that Egan
and Jokelson committed malpractice in connection with Wife’s case against
Klehr, Husband and Wife maintained that they did not need the testimony of
an expert witness to establish the merits of their case. The trial court
granted summary judgment in favor of Egan and Jokelson. The appeal at
2621 EDA 2016 followed.
At civil action number 2013-10242, Husband and Wife sued Tupitza
and three insurance companies, CNA Financial Corporation, Continental
Casualty Company, and Columbia Casualty Company (the “Insurers”).
Husband and Wife alleged that the Insurers were the legal malpractice
carriers for both Tupitza and Klehr, and that the Insurers conspired to have
Tupitza commit legal malpractice in the litigation filed by Wife against Klehr.
The conspiracy for Tupitza to commit malpractice purportedly was formed to
prevent Wife from prevailing against Klehr, which would have been
detrimental to the Insurers. Husband and Wife claimed in that case that
they did not require the testimony of an expert witness to prove that
Insurers and Tupitza conspired for Tupitza to commit malpractice. The trial
court concluded that an expert witness was necessary to pursue the claim of
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legal malpractice, and it granted summary judgment to defendants therein.
The appeal at 2403 EDA 2016 followed.
Appeals
In the appeal involving Egan and Jokelson as Appellees, Appellants
raise these issues:
1. Whether to REVERSE Judge Mahon 1925(b) Order (Exh. C) "deemed waived" the Wallaces' Concise Statement of rulings challenged?
2. Whether to REVERSE Judge Mahon summary judgment Order (Exh. A) "claims against all Defendants fail for failure to certify expert testimony is required" and Rule 1033 Motion to Amend Complaint filed April 1, 2016, is DENIED" and p 3 para. 3 " Mr. Wallace has no legitimate interest in the suits brought against Defendants Egan and Jokelson "?
3. Whether to REVERSE Judge Mahon Order (Exh. B) "all outstanding Motions are DENIED as moot" with regard only to the following motions (set forth in the 1925(b) Concise Statement)? and either GRANT these motions as a matter of law or remand these motions for first time consideration on their merits:
(1) 9/25/15 second motion in this case to disqualify Marshall Dennehey law firm for conflict of interest and intentional spoliation of subpoenaed documents?
(2) Rule 4019 sanctions against Jokelson for intentional spoliation of subpoenaed documents?
(3) for summary judgment against Jokelson and Egan?
Appellants’ brief at 2 (2621 EDA 2016).
Appellants present these averments as to the disposition of their
lawsuit against Tupitza and the Insurers:
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1. Whether to REVERSE Judge Mahon 1925 (b) Order (Exh. D) "deemed waived" the Wallaces' Concise Statement of rulings challenged?
2. Whether to REVERSE Judge Mahon summary judgment Order (Exh. A) "claims against all Defendants fail for failure to certify expert testimony is required?
3. Whether to REVERSE Judge Mahon Order (Exh. B) "all outstanding Motions are DENIED as moot" with regard only to the following motions (set forth in the 1925(b) Concise Statement)? and either GRANT these motions as a matter of law or remand these motions for first time consideration on their merits:
(1) Pa.R.C.P. 1033 amend their 2d Amended Complaint?
(2) reconsideration of Judge Cody Order (Exh. C) sustaining CNAF preliminary objection regarding jurisdiction of CNAF?
(3) Rule 4019 sanctions against Tupitza for intentional spoliation of subpoenaed documents? and summary judgment motion against Tupitza?
(4) Rule 4019 sanctions against Continental /Columbia for repeated refusal to be Rules 4007.1(e) deposed re. 4007.1(d)(1) requested documents? and summary judgment motion against the three CNA Defendants?
(5) 9/25/15 second motion in this case to disqualify Marshall Dennehey for a conflict of interest as well as intentional spoliation of subpoenaed documents?
Appellants’ brief at 2 (2403 EDA 2016).
The crucial positions of Appellees, Egan, Jokelson, Tupitza, and
Insurers, in these appeals are identical. First, Appellees argue that
Appellants waived all their issues by filing an impermissibly vague Pa.R.A.P.
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1925(b) statement. Appellees alternatively maintain that summary
judgment was properly granted in these cases as Appellants needed the
opinion of an expert witness to prevail.
Even though the trial court herein concluded that Appellants’ Pa.R.A.P.
1925(b) statement was too vague and confusing, we decline to find waiver
and prefer to address the merits of the trial court’s decision to grant
summary judgment in these actions. While Appellants present prolix and
confusing argument on the pertinent issues, we agree with Appellees that
the dispositive issue herein is whether Appellants are correct in their
assertion that they do not need expert testimony in order to establish the
merits of their claims in these lawsuits. We conclude that, absent expert
testimony, Appellants cannot establish the merits of their legal malpractice
claims. We therefore affirm.
This Court may overturn an order granting summary judgment if the
appealing party establishes that the court either committed an error of law
or abused its discretion. Finder v. Crawford, 2017 PA Super 210, 2017 WL
28740492017 (filed July 6, 2017) (citation omitted).
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient
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evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
Id. (citation omitted).
In their case against Egan and Jokelson, Appellants averred that those
defendants committed malpractice in connection with activities in Wife’s case
against Klehr. As to the lawsuit with Tupitza and Insurers as defendants,
Appellants alleged that Insurers and Tupitza conspired for Tupitza to commit
legal malpractice so that Wife could not prevail against Klehr in Wife’s legal
malpractice case against Klehr. As we articulated in Sokolsky v. Eidelman,
93 A.3d 858, 862 (Pa.Super. 2014) (citation omitted), “a legal malpractice
action in Pennsylvania requires the plaintiff to prove that she had a viable
cause of action against the party she wished to sue in the underlying case
and that the attorney she hired was negligent in prosecuting or defending
that underlying case (often referred to as proving a ‘case within a case’).”
Accordingly, Appellants must satisfy the following tripartite test: “1)
Employment of the attorney or other basis for a 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.” Id.
(emphasis added).
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In both of these cases, Appellants have consistently and adamantly
maintained that they do not need an expert witness. Our Supreme Court
observed in Rizzo v. Haines, 555 A.2d 58, 66 (Pa. 1989), “expert
testimony is essential” in a case involving breach of a standard of care when
the question of whether the defendant failed to exercise ordinary skill and
knowledge is beyond the knowledge of the average person. Only when the
issue is simple and the lack of skill is obvious can a plaintiff dispense with an
expert opinion to establish malpractice. Id. Essentially, the lack of skill
rendered by a professional must be self-evident or a plaintiff’s failure to
adduce expert testimony is fatal to his case. See Vazquez v. CHS Prof'l
Practice, P.C., 39 A.3d 395 (Pa.Super. 2012).
In their appeals, Appellants fail to even delineate how the performance
of Egan and Jokelson was substandard in the matter of Wife against Klehr.
Thus, Appellants have not proven that breach of the applicable standard by
Egan and Jokelson was so obvious that an ordinary layperson would
understand that they exercised a lack of ordinary skill. As to Insurers and
Tupitza, the malpractice concerned Tupitza’s failure to file a Pa.R.A.P.
1925(b) statement. A layperson would not know what a Pa.R.A.P. 1925(b)
statement is, nor would they understand its legal significance. Thus,
whether Tupitza committed malpractice when he did not file a Pa.R.A.P.
1925(b) statement would not be obvious to an ordinary person, and expert
testimony on that issue is required. We recognize that Appellants averred
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the existence of a conspiracy among Insurers and Tupitza, but the supposed
object of that conspiracy nevertheless was for Tupitza to commit
malpractice. Hence, whether Tupitza deviated from the applicable
professional standard of care remains an element of their case.
We also observe that Appellants have completely overlooked that they
must prove the merits of their case within a case, which was outlined in
Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 641–42
(Pa.Super. 2016), noting that a “legal malpractice action is distinctly
different from any other type of lawsuit brought in the Commonwealth . . .
because a plaintiff must prove a case within a case[.]” Specifically, the
plaintiff averring legal malpractice must “establish by a preponderance of the
evidence that he would have recovered a judgment in the underlying
action.” Id. at 641-42. Therefore, “only after the plaintiff proves he would
have recovered a judgment in the underlying action” can the plaintiff
“proceed with proof that the attorney he engaged to prosecute or defend the
underlying action was negligent in the handling of the underlying action and
that negligence was the proximate cause of the plaintiff's loss since it
prevented the plaintiff from being properly compensated for his loss.” Id. at
642.
Appellants wholly overlook that they must establish in these lawsuits
that Klehr committed malpractice and that they would have prevailed in their
abuse of process case against Mercantile if Klehr had not deviated from the
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applicable standard of care. Appellants were required to present expert
testimony to establish that Klehr improperly litigated Wife’s case against
Mercantile and that Wife would have prevailed against Mercantile absent
Klehr’s deficit performance. Simply put, Appellants needed the opinion of an
expert witness in their case within a case.
Appellants’ argument is identical in these two appeals. Their first
position is that their cases are not premised upon malpractice but an
intentional tort committed by the Appellees herein, which obviates the need
for expert testimony. Appellants’ brief at 17 (2403 EDA 2016); Appellants’
brief at 18 (2621 EDA 2016). First, Appellants mischaracterize their lawsuits.
The torts averred require them to prove that the defaults committed by
Klehr in the abuse-of-process case caused Wife to lose, and that Appellees’
actions in the legal malpractice case against Klehr resulted in Wife’s loss in
that case, where she would have prevailed absent the activities of Appellees.
The lawsuits at issue in these appeals do not involve intentional torts.
In support of this proposition, Appellants rely upon Smith v. Griffiths,
476 A.2d 22 (Pa.Super. 1984), which does not advance their cause.
Therein, Smith filed a lawsuit against Griffiths, who was representing Smith’s
wife in a marital case. Smith averred that Griffiths defamed him in
connection with averments made in the marital case and that Griffiths
caused injury to Smith by giving incorrect legal advice to Smith’s wife.
Griffiths filed preliminary objections, which were granted. We concluded
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that anything stated by Griffiths in the divorce case as to Smith was
protected by an absolute privilege; hence, Smith did not have a cause of
action for defamation. We upheld the dismissal of the averments regarding
legal advice given to Smith’s wife on the basis that Griffiths owed no duty to
Smith in connection with the legal counsel given to Smith’s wife. The case in
question did not discuss, to any extent, the need for expert testimony for
intentional torts.
Appellants also assert that their lawsuits do not contain professional
negligence claims, but allege “intentional misrepresentation,” which “does
not set forth a professional liability claim, and “promissory esttoppel [sic],”
which also is not a position that Appellees deviated from an acceptable
professional standard. Appellants’ brief at 17 (2403 EDA 2016); Appellants’
brief at 18 (2621 EDA 2016).
We reject Appellants’ position that their complaints set forth viable
causes of action for intentional misrepresentation or promissory estoppel.
Appellants did not offer a single statement or promise made by Appellees to
support their suggestion that these two actions involve intentional
misrepresentation or promissory estoppel. They violated Pa.R.C.P. 1019(a)
by cursorily asserting intentional misrepresentation and promissory estoppel
causes of action but not setting forth the “material facts on which [their]
cause of action” was based. Pa.R.C.P. 1019(a) (“The material facts on which
a cause of action or defense is based shall be stated in a concise and
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summary form.”) “Pennsylvania is a fact-pleading state; a complaint must
not only give the defendant notice of what the plaintiff's claim is and the
grounds upon which it rests, but the complaint must also formulate the
issues by summarizing those facts essential to support the claim.” Lerner v.
Lerner, 954 A.2d 1229, 1235 (Pa.Super. 2008). Appellants’ complaints did
not contain causes of action for intentional misrepresentation and
promissory estoppel because they failed to aver the specific facts essential
to support those claims. Likewise, on appeal, Appellants fail to delineate any
statement or promise made by any Appellee that would constitute an
intentional misrepresentation or support a cause of action for promissory
estoppel. The present cases are straightforward legal malpractice cases.
Cf. Krauss v. Claar, 879 A.2d 302 (Pa.Super. 2005) (claims against
attorney did not constitute professional liability claims).
Finally, Appellants suggest that when the “claim is for ‘negligence
rising to the level of gross incompetence’ no expert testimony is required.”
Appellants’ brief at 17 (2403 EDA 2016); Appellants’ brief at 18 (2621 EDA
2016). Appellants cite Smith v. Yohe, 194 A.2d 167 (Pa. 1963), involving
the doctrine of res ipsa loquitur, which applies when the negligence is
obvious and speaks for itself. We have delineated above that the
malpractice in these lawsuits is not so obvious that an ordinary layperson
would be able to ascertain that the Appellees committed malpractice.
Appellants did not even assert what Egan and Jokelson did that would
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constitute such an obvious deviation from the standard of care that expert
testimony was unnecessary. A layperson would not be able to ascertain that
Tupitza’s action was obviously a breach of the applicable standard of care.
Additionally, Appellants do not advance how Klehr’s deficient performance in
the abuse-of-process case against Mercantile was so obvious that an
ordinary person would understand that Klehr deviated from the applicable
standard of care and that Wife would have prevailed against Mercantile
absent Klehr’s malpractice. We thus reject Appellants’ position that they do
not need the testimony of an expert witness in these actions to establish the
merits of their cases, and we affirm the trial court’s decision to grant
summary judgment to the Appellees herein.
Appellants also suggest that they should be afforded the opportunity
to amend their complaints. We set forth in Hill v. Ofalt, 85 A.3d 540, 557
(Pa.Super. 2014), that “the right to amend should not be withheld where
there is some reasonable possibility that amendment can be accomplished
successfully.” In the present case, Appellants wholly fail to delineate how
they could have amended their complaints to successfully assert a cause of
action. Appellants’ brief at 14-15 (2403 EDA 2016); Appellant’s brief at 15-
16 (2621 EDA 2016). They merely block quote principles applicable in the
summary judgment context to amendment of complaints. Since Appellants
do not set forth how there was a reasonable possibility, absent expert
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testimony, that amendment would have enabled them to set forth a viable
cause of action, we decline to grant them the opportunity to amend.
As these actions were properly dismissed due to Appellants’ insistence
that they can proceed without an expert opinion, Appellants’ remaining
issues are moot.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/25/2017
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