J-A21043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL KACHMAR, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : WILLIAM J. LITVIN, ESQ. d/b/a LAW : No. 2794 EDA 2015 OFFICES OF SALING AND LITVIN, :
Appeal from the Judgment entered September 10, 2015 in the Court of Common Pleas of Chester County, Civil Division, No(s): 2013-06092
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J. FILED NOVEMBER 17, 2016
Michael Kachmar (“Kachmar”) appeals from the Judgment entered
against him and in favor of William J. Litvin, Esquire, d/b/a Law Offices of
Saling and Litvin (collectively, “Litvin”), in this professional negligence case.
We affirm.
In its October 22, 2015 Opinion, the trial court set forth the factual
and procedural history underlying the instant appeal, which we adopt as
though fully restated herein. See Trial Court Opinion, 10/22/15, at 1-3; see
also Trial Court Opinion, 3/18/15, at 1-4.
Following a bench trial, the trial court found in favor of Litvin and
against Kachmar. Kachmar filed post-trial Motions, which the trial court
denied. Thereafter, Kachmar filed the instant timely appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained
of on appeal. J-A21043-16
Kachmar presents the following claims for our review:
(1) Did the trial court commit an error of law in granting Litvin’s Motion for Bifurcation, further remanding the “case-within-the- case” to a non-jury trial?
(2) Did the [trial court] commit an error of law in holding [that] Muhammad [v. Strassburger, et al., 587 A.2d 1346 (Pa. 1991),] per se[,] precluded a verdict in favor of Kachmar at trial?
Brief for Appellant at 4.
Kachmar first claims that the trial court erred when it granted Litvin’s
Motion for Bifurcation, thereby allowing the “case-within-the-case”1 to
proceed without a jury. Id. at 17. Kachmar contends that at all times, he
demanded a jury trial, and that the bifurcation and non-jury trial of the
“case-within-the-case” violated his rights under the Pennsylvania and United
States Constitutions, as well as Pa.R.C.P. 1007.1(c)(1). Id. According to
Kachmar, “the liability of Litvin (which is separate and distinct from the
case-within-the-case proof) necessarily became part of the trial.” Id. at 18.
Kachmar contends that “the non-jury trial confused Litvin’s liability with the
Order of bifurcation[,] vis-à-vis ‘case-within-the-case’ proofs—with damages
1 As we will discuss infra, a legal malpractice action in Pennsylvania requires the plaintiff to prove that he had a viable cause of action against the party he wished to sue in the underlying case, and that the attorney he hired was negligent in prosecuting or defending that underlying case (often referred to as proving a “case within a case”). Poole v. Workers’ Comp. Appeal Bd. (Warehouse Club, Inc.), 810 A.2d 1182, 1184 (Pa. 2002).
-2- J-A21043-16
being relatively simplistic as mathematical (i.e., the underlying settlement
amount to Christine Kachmar).” Id.
Under Pa.R.C.P. 213(b), the decision whether to bifurcate a trial is
within the trial court’s discretion. Gallagher v. Pa. Liquor Control Bd.,
883 A.2d 550, 557 (Pa. 2007). Accordingly, we review the trial court’s
ruling for an abuse of discretion. Id.
In its Opinion, the trial court addressed Kachmar’s challenge to the
bifurcation (and the resulting bench trial), and concluded that it lacks merit.
Trial Court Opinion, 10/22/15, at 9-10 (addressing bifurcation), 10-11
(addressing the propriety of a bench trial in the underlying case). We agree
with the sound reasoning of the trial court, as set forth in its Opinion, and
affirm on this basis.2 See id.
Kachmar next claims that the trial court erred in holding that the
Pennsylvania Supreme Court’s holding in Muhammad precluded a verdict in
favor of Kachmar. Brief for Appellant at 9. Kachmar asserts that he “is not
attempting to second-guess his attorney’s settlement valuation. On the
contrary, [he] contends strict settlement causative legal errors.” Id. at 20.
2 In its Opinion, the trial court adopted, inter alia, the rationale set forth in its February 13, 2015 Order granting bifurcation. In that Order, the trial court stated the following:
A review of the underlying divorce action reveals that [Christine] Kachmar did not petition the court for a jury trial on the issue of spousal support, nor did the court issue such a ruling regarding a jury trial on any matter in the underlying divorce action.
Trial Court Order, 2/13/15, at 1 n.1.
-3- J-A21043-16
Kachmar contends that there is a “negligence exception” to the Pennsylvania
Supreme Court’s holding in Muhammad. Id. Kachmar argues in the
alternative that Muhammad does not apply in this case. Id. According to
Kachmar, “the settlement at issue regarded the divorce litigation[,] not
Litvin’s preparation and presentation of the defective postnuptial
agreement—two distinct proceedings (i.e., transactional v. litigation)—
necessarily distinguishing Muhammad’s rationale.” Id.
“Our review of the trial court’s decision after a non-jury trial is limited
to determining whether the findings of the trial court are supported by the
competent evidence and whether the trial court committed error in the
application of law.” Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa.
Super. 2004). It is not our role to pass on the credibility of witnesses, as
the trial court clearly is in the superior position to do so. Id.
As our Supreme Court has explained,
[a]n essential element to this cause of action is proof of actual loss[,] rather than a breach of a professional duty causing only nominal damages, speculative harm or the threat of future harm. [Rizzo v. Haines, 555 A.2d 58,] 68 [(Pa. 1989)]. Damages are considered remote or speculative only if there is uncertainty concerning the identification of the existence of damages[,] rather than the ability to precisely calculate the amount or value of damages. Id. ….
***
[The plaintiff] must initially establish by a preponderance of the evidence that he would have recovered a judgment in the underlying action …. It is only after the plaintiff proves he would have recovered a judgment in the underlying action that the plaintiff can then proceed with proof that the attorney he
-4- J-A21043-16
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.
Kituskie v. Corbman, 714 A.2d 1027, 1029-30 (Pa. 1998) (footnote
omitted).
Here, the trial court determined that Christine Kachmar would not
have been successful in setting aside the post-nuptial agreement. Trial
Court Opinion, 3/18/15, at 9, 11. In addition, the trial court observed that
Kachmar decided to settle the underlying litigation over the post-nuptial
agreement, and fails to argue fraudulent inducement to enter into the
settlement. Id. at 9-11. We agree with the sound reasoning of the trial
court, in resolving these issues, and affirm on the basis of its March 18,
2015 Opinion with regard to these claims. See id. at 9-11; see also Trial
Court Opinion, 10/22/15, at 6-9.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/17/2016
-5- Circulated 10/20/2016 04:03 PM
MICHAEL KACHMAR IN THE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNS.YLVANIA VS.
VV!LLIAM J. LITVIN, ESQUIRE d/b/a NO. 13-06092 .. r·.,
LAW OFFICES OF SALING & LITVIN CIVIL ACTION
Matthew B. We1sberg, Esquire, on behalf of Plaintiff/Appellant Jeffrey B. Mccarron'- Esquire, on behalf of Defendants/Appellees
OPINION PURSUANT TO Pa.R.A.P. 1925
I. PROCEDURAL SETTING
This matter comes before this Court as a result of an appeal filed by Michael :, Kachmar (hereinafter "Plaintiff') from the denial of Motion for Post-Trial Relief entered
August 17, 2015. Plaintiff timely filed his appeal on September 2, 2015. By Order of
September 3, 2015, the Court directed Plaintiff to prepare a Concise Statement of
Errors Complained Of on Appeal. The Concise Statement was filed on or about
September 18, 2015. The matter is now ready for determination.
II. .EbCTS
According to the Amended Complaint, this civil action arises out of the
representation by Defendant, William J. Litvin, Esquire, of Plaintiff in the preparation of
a post-nuptial agreement and subsequent divorce. Plaintiff alleges that Defendant
committed legal" malpractice by failing to include a :release of spousal support clause in ,, the post-nuptial agreement. Plaintiff was dissatisfied with the amount of property he
ultimately transferred to his ex-wife, Mrs. Kachmar, in a subsequent property
settlement agreement and claims that he was forced to settle for such amount as the
Ii ~i .: result of the absence of the spousal support waiver in the post-nuptial agreement.
Plaintiff asserted professional negligence, breachof contract/covenantof good faith
and fair dealing, and breach of fiduciary duty claims, · He eventually :withdrew the
breach of fiduciary duty .clalm.
Defendants filed- Preliminary Objections tothe Amended Complaint on or about
April 2, 2014, seeking to strike the claims for attorney's fees and emotional distress
damages. This Court sustained the Preliminary Objectionsby Ordered dated April 30,
2014.
At a later stage in the proceedings, Defendants moved for Summary Judgment,
raising an argument that Plaintiff's claims were barred as a matter of law by the
Superior Court's decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod,
and Gutnick, 587 A.2d 1346 (Pa. 1991), rehearing denied, 598 A.2d 27 (1991). This
Court denied the. Defendants' Motion for Summary Judgment by Order entered
September 23, 2014, without opinion.
Defendants subsequently filed a motion in llmine seeking bifurcation of this
action on the basis that in the underlying family cburt matter, Plaintiff ~;s not entitled
to a jury trial as of right. For purposes of resolving the "case within a case"
requirement of this legal malpractice action, this Court granted Defendants' motion in
limine, thereby bifurcating the action and granting a bench trial on the sole issue of
whether the underlying· petition would have been successful.
A bench trial was heard on the underlying Petition to Set Aside ori February '17,
2015. Following trial, the parties were permitted to submit proposed findings of fact
j j and conclusions of law. Thereafter, on March 18, 2015, this Court issued a Decision I i'I ! ;! 2 I pursuant to Pa.R.C.P. 1038 in favor of Defendants, which is hereby incorporated
herein and attached hereto for ease of reference. . .
On March 30,. 2015, Plai,ntiff filed a motion for post-trial relief, seeking judgment
in favor of Plaintiff or, in the alternative, a new trial. As a basis for the· request for a
new trial, Plaintiff claimed he was harmed by this Court's ruling which prohibited him
from offering evidence of his increased risk of harm. Plaintiff also argued that the
Court erred , in. applying ft(/uhammad to bar his claims . after previously denying
Defendants' Motion for Summary Judgment on the issue. · Plaintiff additionally claimed
that this Court erred in bifurcating the trial so that the issue of Mrs. Kachmar's success
on the Petition to Set Aside was heard at a bench trial. Finally, Plaintiff argued that the
evidence presented at trial supported a verdict in his favor and that the weight of the
evidence was contrary to this Court's verdict in favor of Defendant. By Order dated - August 17, 2015, this Court denied Plaintiffs post-trial motions. It is from this Order
that Plaintiff now appeals.
Plaintiffs Concise Statement of Matters Complained Of on Appeal contains 13
allegations of error by this Court, which are summarized into four categories. as
follows:
1: Did theCourt err in entering judgment against Plaintiff?
2. Did the Court err in holding that Muhammad applied to bar Plaintiffs
legal malpractice action?
3. Did the Court err in bifurcating the "case within a case" element of
Plaintiffs legal malpractice action?
4. Did the Court err in holding a bench trial on the issue of the "case wfthin II j I 3 ; I a case" in spite of Plaintiffs jury demand?
Ill. ISSUES
A. Whether judgment.should have been :entered in. favor of Defendants.
B. Whether Muhammad applied to bar Plaintiff's legal malpractice action.
C. Whether bifurcation of the "case within a case" was proper.
D. Whether a bench trial was properly held on the issue of th_? "case within
a case".
JV. HOLDINGS
A. Yes, judgment was properly entered in favor of Defendants.
B. Yes, Muhammad is good law that applied to bar Plaintiffs legal malpractice action.
C. Yes, bifurcation of the "case within a case" was proper.
D. Yes, a bench trial . was proper on the issue of the "case within. a case"
V. RA TIO NALE
A. Standard of Review
This appeal arises from the denial of Plaintiff's post-trial relief seeking judgment
in Plaintiffs favor or, in the alternative, a new trial. When reviewing a
trial court's decision in a non-jury trial, the appellate court must determine whether the
findings of the trial court are supported by competent evidence and whether the trial
judge committed error 'in the application of law. In a bench trial, the trial judge acts as
fact-finder and has the authority to make credibility determinations and to resolve
conflicts in evidence. See, Ruthreutt, Inc. v. Ravin, Inc., 914 A.2d 880 (Pa. Super.
2006). Consequently, the trial judge's findings made after a bench trial must be given
4 the same weight and effect as a jury verdict and will not be disturbed on appeal unless
they are not supported by competent evidence in the record. See, Levitt v. Patrick,
976 A.2d 581 (Pa. Su per. 2009); Stonehedge Square Ltd. v. Movie Merchants, Inc.,
685 A.2d 1019, 1022 (Pa. Super. 1996), appeal allowed in part, 696 A.2d 805 (1997),
affirmed, 715 A.2d 1082 (1998) (citations omitted).· It is not the Superior Court's role to
pass on the credibility of witnesses, as the trial court clearly is in the superior position
to do so. See,.Komfeld v. At!. Fin: Fed., 856 A.2d 170, 173 (Pa. Super. -2004), appeal
denied, 871 A.2d 192 (Pa. 2005) (citation and internal quotation marks omitted).
A judgment notwithstanding the verdict may be entered on two bases: (1) where
the movant is entitled to judgment as a matter of law and/or (2) where the evidence is
such that no two reasonable persons could disagree the verdict should have been
rendered for the movant. See, Griffin v University of Pittsburgh Medical Center-
Braddock Hosp., 950 A.2d 996, 999 (Pa. Super. 2008) (quoting Buckley v. Exodus
Transit & Sioreqe Corp., 744 A.2d 298, 304-305 (Pa. Super. 1999)) (citations omitted).
On the first basis, a court must review the record and conclude that, even with all
factual inferences decided adverse to the movant, the law nonetheless required a
verdict in rnovant's favor. As to the second basis, a court must review the evidentiary
record and conclude that the evidence is such that a verdict for the movant is beyond
peradventure. See, Eichman v. McKeon, 824 A.2d 305 (Pa. Super. 2003). Judgment
notwithstanding the verdict is not to be entered where the evidence is conflicting on a
material fact. See, Lilley v. Johns-Manville Corp., 596 A.2d 203, 207 (Pa. Super.
1991).
Trial courts have broad discretion to grant or deny a new trial It is well-
5 established law that, absent a clear abuse of discretion by the trial court, appellate
courts· must not interfere with the trial court's authority to grant or deny a new trial.
Because of the superior position of the trial judge as fact-finder to assess· the credibility
of witnesses and resolve conflicts in evidence, the trial court's authority to grant or
deny a post-trial motion foltowing a bench trial "is enhanced, and the appellate court's
authority to override the trial· court's decision is proportionately diminished." See,
Spang & Co. v. United States Steel Corp., 545 A.2d 861, 866 (Pa. 1988). A new trial
may be granted only when the verdict is so contrary to the evidence as to shock one's
sense of justice. See, Tucker v. Bensalem Twp. Sch. Dist., 987 A.2d 198 (Pa.
Cmwlth. 2009).
B. Discussion
1. .JudgJJ1~nt wa§._prope.[!:it entereQ . . !.nJa\J:pr of Defend9.o:t§.,.
Upon review and consideration of the Concise Statement, my findings of fact
and conclusions of law in support of my decision in favor of Defendants is set forth at
length in my Decision Pursuant to Pa.R.C.P. 1038 of March 18, 2015, and I have little
to add but the following for the reviewing court's consideration.
Sitting as the fact-finder during a bench trial on the issue of the "case within a ,, case", this Court determined that the Motion to Set Aside would not have been
successful, in whole or in part, because the allegations of Mrs. Kachrnar's Petition to
Set Aside were contradicted by the testimony of both Mrs. Kachmar and Plaintiff at
trial. See, Decision of March 18, 2015 at pgs. 5-6. Mrs. Kachmar testified that she
consulted with an attorney friend of hers who reviewed the agreement. See, Id. at pg.
!i 6. Upon such review, Mrs. Kachmar was apparently satisfied and executed the
! ,. 6 · I '. I agreement. There was no suggestion by Mrs. Kachmar of fraud, misrepresentation or
1 duress. See, Decision of March 18, 2015 at pg. 9.
Plaintiff further argues that this Court erred by not allowing him to present
evidence that the Motion to Set Aside did not expose him to a risk of harm which he ' mttigated through settlement. However, courts of this Commonwealth have
determined that they will not apply an increased risk of harm standard to legal
malpractice actions. See, Myers v. Robert Lewis Seigle, P. C., 751 A.2d 1182, 1185
(Pa. Super. 2000); see also, Gans v. Gray, 612 F.Supp. 608, 614 (E.D. Pa.1985); see
also, ASTech Int'/, LLC v. Husick, 676 F. Supp. 2d 389, 401 (E.D. Pa. 2009). Thus,
Plaintiffs assertion is wholly lacking merit.
Simply put, Plaintiff did not meet his burden of proving the case within the case
by a preponderance of the evidence. As this is the threshold issue in any legal
malpractice case, Plaintiff was not permitted to move forward in attempting to prove
the remaining elements of his claim. See, Pa.R.C.P. 224. Any further analysis
required by the reviewing court is set forth in my Decision of March 18, 2015.
Judgment was properly entered in favor of Defendants. Plaintiffs post-trial motion
clearly failed to meet the criteria necessary to entitle him to a judgment
notvvithstanding the verdict or, in the alternative, a new trial. This Court's decision was
supported by competent evidence based upon the credibility of the witnesses and the
resolution of any conflicting evidence which should not be disturbed. I, therefore,
respectfully request that my ruling be affirmed.
2. Muhammad applied to bar Plaintiff's legal malpractice action.
Ultimately, the Petition to Set Aside was never adjudicated because Plaintiff
7 and Mrs. Kachmar reached a settlement of the matter. See, Decision of March 18,
2015 at pg. 10. Settlement of the underlying matter in a legal malpractice action raises
the question of whether a party is permitted, as a matter of law, to pursue such a claim
against his attorney. The Supreme Court case, Muhammad v. Strassburger,
McKenna, Messer, Shilobob & Gutnick, 587 A.2d 1346 (Pa. 1991 ), cert. denied, 502
U.S. 867 (1991 ), is instructive on this issue. The Muhammad Court held that a client
cannot maintain a legal malpractice action against an attorney where theclient agreed
to settlement of his or her claim in the absence of proof that the settlement was
fraudulently induced. See, ta. Here, as stated in my Decision of March 18, 2015,
there was no allegation that Plaintiff entered into the settlement agreement with Mrs.
Kachmar based upon a fraudulent inducement by Defendants. See, Decision of
March 18, 2015at pg. 10. Indeed, Plaintiff indicated that he chose to settle the matter
to put the matter behind him and move beyond the domestic relations battle with his
former spouse. See, Id. at pg. 7.
This Court's determination following trial that Plaintiffs claims were barred by
Muhammed is not contrary to the law of the case doctrine. Defendants' Preliminary
Objections were not adjudicated on this issue. The Order of September 23, 2014
denying Defendants' Motion for Summary Judgment was issued without any opinion or
basis for the ruling. At trial, this Court is not bound by an earlier ruling denying
summary judgment on an issue. The law of the case doctrine simply prohibits a court
from granting relief that directly contradicts previous court holdings. See, Riccio v.
American Republic Ins. Co., 705 A.2d 422 (Pa. 1997). However, this doctrine does
not typically apply where the motions are of a different type. See, Id. at 425:-26.
8 I; 1 ! Because this Court's Order denying Defendants' Motion for Summary Judgment was
issued . at a different . stage of litigation than this Court's ,. decision and opimon . following
trial, the law of the case doctrine does not apply.
I have _nothing additional with which to . supplement the legal analysis of . ; . .
Muhammad and its applicability to the facts; therefore, I defer to my Decision of March
18, 2015. There was no error of law in barring Plaintiffs legal· malpractice claims '
stemming from the settlement of the Petition to Set Aside and other equitable
distribution issues in the underlying matter. Accordingly, I respectfully request that the
Superior Court affirm my ruling.
3. Bifurcation of the "case within a case" was proper.
The decision to bifurcate the underlying "case within a case" was addressed in
my Order of February 12, 2015, which I hereby incorporate by reference and attach
hereto for ease of reference.
Bifurcation of tria! issues is permitted by Pennsylvania case law and the Rules
of Civil Procedure. See, Pa. R. C.P. 213(a). The trial court may order bifurcation of
trial issues in furtherance of convenience or to avoid prejudice. See, Geiswite v.
Warner, 21 O&C 4th 473, 476 (C.P. Clinton Cty, 1993); see also, Coleman v.
Philadelphia Newspapers, Inc., 570 A.2d 552, 555 (Pa. Super. 1990). The decision to
bifurcate is discretionary. See, Wolk v. Wolk, 464 A2d 1359, 1362 (Pa. Super. 1983).
The court's decision to bifurcate a trial shall not be disturbed absent an abuse of
discretion. See, Sacco v. City of Scranton, 540A.2d 1370, 1372 (Pa. Cmw!th.1988).
It is well-settled law in this Commonwealth that to prevail on a legal malpractice
rction, the plaintiff must first successfully litigate the "case within the case." See,
9 Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998). Only after the plaintiff proves that he
would have lost in the underlying matter may the plaintiff proceed on the other
elements of his claim, i.e., proof that the attorney's negligence was the proximate
cause of the plaintiffs loss. See, Id. Here, Plaintiff was required to litigate to a
conclusion the Petition to Set Aside that was underlying his legal malpractice claim. In
light of the clear delineation of these matters for trial and the prerequisite that Plaintiff
first demonstrate that he would have prevailed in the underlying matter, bifurcation of
this action promoted the interests of judicial economy and avoided any unnecessary
prejudice. See, Pa.R.C.P. 213(a) and 224 (the court may compel the plaintiff to
produce all evidence upon the question of the defendant's liability before calling any
witness to testify solely to the extent of the injury or damages). Additionally, Plaintiff
has not claimed that this Court abused its discretion in so ordering bifurcation; rather,
the Concise Statement suggests that the bifurcation was an error of law, which is not a
basis for disturb this Court's decision. For these reasons, I respectfully request that
the Superior Court affirm my ruling.
4. }2§_t]Ch trial on the issu~ of the "case w[ttlLo a case" was gIQQ§.f..
The decision to hold a non-jury trial on the issue of the underlying "case within a
case" was addressed in my Order of February 12, 2015, which I previously
incorporated by reference and have attached hereto for ease of reference. In the
Order, I noted that the underlying matter involving the Petition to Set Aside filed by
Mrs. Kachmar could not properly go before a jury. See, 23 Pa. C. S.A.· 3322. Upon
investigation, this Court discovered that neither Mrs. Kachmar nor Plaintiff. at any point
in the underlying proceedings, petitioned the family court for the equitable distribution
10 'I 1. I 1 I
matters to be submitted for a jury trial. Moreover, at no point in the underlying
proceedings did the family court issue a ruling regarding either party's entitled to a jury
on this matter. For these reasons, I determined that Plaintiff was not entitled to a jury
on this matter in the prosecution of his legal malpractice action.
In sum, whether Mrs. Kachmar would have prevailed on her Petition to Set
Aside was for determination by a trial judge, not a jury. Plaintiff is not permitted to
maneuver this case so that a jury decides the "case within a case" which would have
been adjudicated by a judge had the matter not been settled.
As there was no abuse of discretion in this Court's determination that the "case
within a case" was to be heard in a non-jury trial, I respectfully request that the
Superior Court affirm my rullng.
BY THE COURT:
J.
1 Plaintiff's Concise Statement raises the argument that that this Court erred by disregarding Plaintiffs expert's testimony. This matter was not raised by Plaintiffs post-trial motion and, therefore, the issue is deemed waived for purposes of this appeal.