j-s17018-14 non-precedential decision

J-S17018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NEW WAY CLEANERS, LLC AND
STEPHEN LAMBERT,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
WILLIAM H. POOLE, JR., ESQUIRE,
Appellee
No. 1727 MDA 2013
Appeal from the Order entered September 4, 2013,
in the Court of Common Pleas of York County,
Civil Division, at No(s): 2013-SU-001651-81
BEFORE: GANTMAN, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY ALLEN, J.:
FILED MARCH 14, 2014
New Way Cleaners, LLC and Stephen Lambert (“Appellants”) appeal
from the trial court’s order granting the preliminary objections of William H.
Poole, Jr., Esquire (“Poole”), and dismissing Appellants’ complaint asserting
legal malpractice. Upon review, we affirm on the basis of the trial court’s
opinion.
On May 17, 2013, Appellants filed a complaint against Poole in which,
inter alia, they claimed that Poole committed legal malpractice in his
representation of Appellants at a hearing to determine whether Appellants’
HUD relocation funds were exempt from attachment by creditors. Appellants
specifically averred that Poole committed legal malpractice by failing to
object to an email from a HUD employee being introduced and read into the
record, and conceding that counsel for the York Housing Authority had
J-S17018-14
received an informal opinion from his client without seeing the document or
requesting an opportunity to investigate the e-mail. Appellants’ Complaint
at 7.
Poole filed preliminary objections on June 11, 2013. The parties filed
briefs and appeared before the trial court on August 28, 2013 for oral
argument. On September 3, 2013, the trial court issued its order granting
Poole’s preliminary objections and dismissing Appellants’ complaint.
The
trial court contemporaneously issued a memorandum opinion in which it
recited applicable legal authority and concluded:
[I]t is apparent that neither Poole’s alleged “failure to object to
the email” nor Poole’s alleged concession “that counsel for the
Housing Authority had received an informal opinion from HUD”
were the cause of any damage to [Appellants].
[Appellants’] allegations do not, as a matter of law, establish
that [Poole] acted with reckless indifference to [Appellants’]
rights, nor do they establish the outrageous conduct required by
Pennsylvania law to support a claim for punitive damages.
Memorandum Opinion, 9/3/13, at 7, 9.
Appellants filed a timely appeal.
Both Appellants and the trial court
have complied with Pa.R.A.P. 1925. With this Court, Appellants frame their
issues as follows:
A. WHETHER [THE] TRIAL COURT COMMITTED ERROR WHEN IT
FOUND [POOLE’S] NEGLIGENT CONDUCT WAS NOT THE
PROXIMATE CAUSE OF DAMAGES TO [APPELLANTS’?]
B. WHETHER [THE] TRIAL COURT COMMITTED ERROR WHEN IT
FOUND [POOLE’S] CONDUCT WAS NOT OUTRAGEOUS SO AS
TO SUPPORT A CLAIM FOR PUNITIVE DAMAGES[?]
-2-
J-S17018-14
Appellants’ Brief at 3.
When a trial court denies preliminary objections, our standard of
review is as follows:
When reviewing the dismissal of a complaint based upon
preliminary objections in the nature of a demurrer, we treat as
true all well-pleaded material, factual averments and all
inferences fairly deducible therefrom. Where the preliminary
objections will result in the dismissal of the action, the objections
may be sustained only in cases that are clear and free from
doubt.
To be clear and free from doubt that dismissal is
appropriate, it must appear with certainty that the law would not
permit recovery by the plaintiff upon the facts averred. Any
doubt should be resolved by a refusal to sustain the objections.
Moreover, we review the trial court’s decision for an abuse of
discretion of an error of law.
Rodgers v. Lorenz, 25 A.3d 1229, 1231 (Pa. Super. 2011) (citation
omitted).
With regard to legal malpractice, in order to establish a claim, a
plaintiff/aggrieved client must demonstrate three basic elements:
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. Kituskie v.
Corbman, 714 A.2d 1027, 1029 (Pa. 1998) (citation omitted). In essence,
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[.]” Id. at 1030.
-3-
J-S17018-14
In
assessing
Appellant’s
claim
for
punitive
damages,
“punitive
damages cannot be recovered in the absence of a legally recognized injury.
Furthermore, punitive damages can only be awarded where a defendant’s
conduct is found to be malicious, wanton, willful, reckless or oppressive.”
Houston v. Texaco, 538 A.2d 502, 505 (Pa. Super. 1988).
Mindful of the foregoing law, we have reviewed the record and discern
no abuse of discretion or error of law by the trial court.
The trial court’s
September 3, 2013 memorandum opinion, which the trial court adopted on
October 21, 2013 as its Pa.R.A.P. 1925(a) opinion, (see Order, 1/21/13),
capably addresses Appellants’ issues.
the trial court opinion as our own.
We therefore adopt and incorporate
The parties shall attach a copy of the
opinion in the event of future proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2014
-4-
IN THE COURT OF COMMON PLEAS Of YORK COUNTY, PENNSYLVANIA
CIVlL Df\'ISICN
~o.20J3-~~OOlb51-81
NEW WA'\' Cl.EAJ-<ERS. LLC and
srl!:rliEN LAMBERT
v
W[J.l.iAM H. POOLE, JR.. ESQUIRE
a\ii Actio:1 - Law
Def<:ndanl
A.PPlARANCES:
MARKS.KEENHEEL, ESQLIRE
M'pl"wood MaIl Lo~ Call","
59 MapleWood MaIl
Philndelphia, fA 191-14
for Plaintiffs
BRYON R. KASTER, ESqUIRF
PI ... 21, Su;Ie302
425 Nonh 2 I~ Streel
Camp Hill, PA 17011-2223
For Defendant
.Memonlndum Opinion on
DdeodaDI'~ Pnlimioary
Objtttions
Def...dan~ by and through oounsel '"" Jilod Pn:J.irnuwy
~1'lDtiffs
Obj""ti~1lS to the
Compl.InL Ikfcndaol, WillI.,... H. Poole, J., Esqwn:, overs thai Plaintiffs
fiUJdI 10 .rate a claim upon which rei;";....., i><: gm"od by fallin! 10 prove Ihal
Oefendnnl's ltCOlJoswere the pro~malc cau...c;;eof damage 10 the Plaintiffs.
DcJcodaot"s. first prclinuDlU) objection
15
in
{nc
DSfUl'1:
of
Q
dt.:murrer \0
Plnintiffi.- <lI1lim for legal maJp""'t1oc. Tnc!CO>n<l ptcluninary objeotiOD is in Ihe IlBturc
or. dan= 10 Ph""tiffs' claim tor ponib"" dam~
1"or!he fuJIowiDg reosons. Dcf<mdllll", hdu"U=) ObJCCI;Ons ""' GRAJ',TfD.
- ..
P2/10
- - - .-- - - - - - .____ __ __ L
F;\CTS AND PROCEDURAL HISTORY
On Aug",. 29. 2008. the
HOllSin~
Authon.y of the City of York, PennSylvam8
(hereinafter Housing Authority) forwarded
owner of New
W~y
it
teller to Plaint:ffs, Stephen Lambert as
Cleaners, LLC (hcreinatler Plaintiffs), informing hIm t'lfthcir interest
m ac':qulring 33S West College Avcnu(:, Yorlo., PA Plamliffs and HO\Jsing, Authority
reached /1U 1!grccmCtlI for the ::Iule of the land snd PlslntiiTs
different properly to relocate the
mOVlng
pl'QCts~,
b~me!fs,
Plaimiffs submIHoo
il
tht.'T1
began
J
search for 8
New Way Cleaners, LLC As part of this
U. S Departmenl of Housing Gnd Urba.'1
Oeve;opment (herem.fter HUO) form HUD-looSS to the Housing Authority seektng
actual reasonable moving and related expem.es. including reestablishmC:nt expenses
rdating 10 the relocation and i'CCstabushmenl of New Way Clean",., LLC under Ule
UOIform RcloClltlon Assisr3nC1: and Rca.! Property AcqUislhon P(,hcies Act ()f 1070
(URA) .
Tht.!. Plamtiffs initially selected a location whiclt required
rthlmed
to
ntlll con~lruction ,
and
Shermeyez- and Associates. Inc. d/bJ3I SAA ArchileclS (hereinafter Shermeyer)
do a feWiibllll) st.wJ) for the proposed locauon IUld OOilsrruCllOll, Due to tbe high cost
of thai particular project, Pluintim. later chose
An
alremale loentioll at 363 W King
SucC1... York, PA. wbJth was an tXisllllg building for Jease.
On May 17.2010, Sh1m11eyer obtained. confes,od judgment againS! the Plainliffs
in
the amount of S 14,629 OS lor UD'pood serVIces
In
The relocation project. On Marth 7,
2011 , the PlaIntiffs were awarded S19,392.00 ror relocation costs pursuant to their URA.
P'!l/ID
20f!-09'-0fi 10;5"
application tll1d planned to t.l.Se and rely upon s:tid amount to pay the bulk of the COSI of
relocotion 10 363 W King 5_1, Yori<, PA 17'01.
00 March 19, 101 I, Shenne),c:r filed and served a writ of cxecunon
IUlQ
IDlcrrogalolies III l:!lrTIishmcllt upon the HOUSing AUthonly. Housmg Autholity fuspondt:d
Ihol 11 was holding funds IiWarded to Plaintiffs for relocouon cost. On April 25. 2011,
Shemu:ycr obta.ined Judgment against the Housing AulhonlY .as gami$heo for S18.142.01
On May 61 2011, Hawnn}; Authont)' filed
it
petition wilh the York County Coun
Or
Common Picas seeking a delennimnioll OS to whclhe:- it should disburse the rdncallon
f.nds to either Ihe PlaitlliilS or 10 Shermoyer On May 19, lOll, • he.ring was held
beforu the Hlmur:1blc Slt.'phcn P. Linebaugh on whether the Housing Authority should
tum Ir.C relocation funds over to Sherrneyer or 10 dIe Plainriff5 Tho Phtmuffs were
reprCo'it:nted by Defendanl
lit
tbe ~a)' 19. 2011 hearing Defendant :.ta!es thut the hcanng
addressed the .pplieabiUty of 49 C.f.R. 24.403(a)\6), which provides th."
Dtduclions from reiocahon paymcnts. An Agency shall de-duci the amount of any
advance rclocallon pa.yment frolll the relocation paymenl(s) to which a displaced
person is otherwise: entitled. Th.; Agency shall
relocation payment
\0 it
dlsplu.oet1 person to
DOl
58ltSfy
wIthhold any pllrt oj a
an ('IblLgation to
011)'
other
creditor. 49 C.F.R !4403(.)(6)
At the heanna. C(lllnseJ fur the HOUSIng AUlhonty referenced an informal adVISOry
opmion in Court. which ended up being an e-mail he received from a
Hun
ofliciaL
Plaintiffs alh!~e th:lt Oefcndanl faded to obJC(lt tha.I the alleged HUD "ndvisory tlpmion
- - + - - - ....
thlll was an informal opimon" as il would be madmlssible
HUD ufficials. lu addi\1on.
~ II!\'J It OT
D~rendunt
railed
10
requCSI
II
wd~
approved by prupw
wpy of .said infonnal opmioo to
to request a oelay 1n the procc(.I(hngs 10 delermine the validity of the mfonnal
opmion Defendant counters Pi.inuffs' .Ueg.tion by referring to 11", transcript of the
proct'Cding., which Indicates that
(Complatn~
Defeoda~l
did ;,Iace
th~ ;l1~enl
011 the
~cord
Ex. D. p. 5, In. 1· ', 0).
On May 26. 2011 , the C(lurtiSSUed ~n Order t'rde:riog t.b<:: Housmg AUUlOrity
10
pay Shenneyer th. amuunt of SI S,592.00 oOt of the PI!lnltffs' reloeobOo funds. In
a.ddlh~n . lhe
Court ordered the rcmamin~$799. 99 be paid over to Defendant. M a result.
Ihe PIJmriftS were unulile to r~localc and re·(lpen lhe- busin~li .
On M.y 27, 101 t. Plaintiffs appe,I,d the May 26, 2011 Court Onlcr. On Augu"
I, 2011 , the CoUrt tssued a I ~25(.) Opinion ill Support of Order Withm th' 1~25(.)
opmion, the Coon addressed the application of 49 C.F,R 24.403(0)(6) [0 [he dISpute. In
reuching us deClsion, thl! Court concluded that Shenneyer had prt)V1d~ ''advan~e
relocation payments" to PlainlitTs. and, therefore, according to the Coun , it did nOl act In
contr>vention of 49 C.F.R. 24.403(.)(6) be","" the regulntion provides [hal "an Agency
shall deduct the amount of I1IlY ~t!~nce relocation payment frtlln the relOcation
payment(~) to
whkh a djspla~ pCT't"On is Dlhcrwist: untitlc.d .. Th~ PeMsyl ....w11 Supenor
Coun upheld the lower oourtls decision
In
Its Opinion lssued on February 22. 2012. As a
result of the Supenor COtlrt'S ruling. the PlaU1tJrrS' rclocauoll funds were distributed tiS
ordered by tho Court
·----+1--------·- - - - - - - -- -----+
P5f1U
This legal malplllctice chl1m ilroSC from Dc:fende.nt's representation of Plaintiffs at
t'-lc hearing
bc:fur~
the Honorable Judge Stcphe.'1 P wneba\lg.h on r..,fay 1(), 1011.
Accordingly. P1illfllifts contend that Defendant's fa.ilure to object to the c·maU from 11
staff HUD employee beuig introduced ilOd read into the record 8S an lOfonnai opinion Or
as representing HUD in any manner was negligence. Plaintifis contend that it was
negligence per sc when Defcndam concede..::! tbat counsel for the HouslOg AuthQrity hlld
received an IOforTnui UpHlIOn irom HUO without seemg the documenlltself or reques1inS
an uppor'lunit)' ttJ mvcslig:ue ule e-matl as 10 source and Qulhorit)l. Plamlifts abo contend
that i[
W"d.S
11 direot conflict of' mterest for AttomC'v Poole's fee... to be paid from Ihe
relocation funds thai he
b3g~
WI!
fishtmg to ko:cp for the Plaintiffs Defendant :,1ates thet
upon the opinion.~ ft'Qrn the trial court and Scperior Court, the alleged "failure 10
unject to the c-mail" or that Defendant's e.l1cged concession "that counsel [or the HOu.)ing
Authority bad recei\'ed an lOfarrtutl opimon from HUD" had no bearing on the Counts
holdings IU\d therefore were clearly nQl the pro:dmalc causcofdarnagc to Ihe Plaioriffs
On May 17. 2013, PI.m,iffs,
S,cp~en
Lomhen and New Way Cle.n""" LLC,
initia'ed Ihis .Clion hy filing. Complain .. O.r.ndw1I, Wilham Poole, Jr., Esq., filed
timel y Preliminary ObJectlons On June 11.2013 , Defendant's bnef was thereafter filed On
June 21. 1013. PlainutTs replied to Dcfendant'~ bncf With their own brief on June! 28.
201] This cuse was listed Ii)r nnc-judge dlspo~ltiun on July 25'01, 1013 and asSigned to
thiS Court on August 1st, 201), o....-.sJ ar!,'1Jmenl on the Preliminary Objections
Augus' 28. 2013.
WilS
held on
Pi/III
·--------------------------------r'
P ISCUSSJON
Pr~[imintlry Qbjt:£/itHfS
I
olDefeJldant, if'ilJiam H. Poo!c. J,." E§,ouirc
1) Prtliminuy Objection, pursuant to PA.R.C.P. 1028(.)(4), for the Leg.1
Insufficiency of Plaintifls' legal Malptlclice Calm il8i\i nst DefendanL
Prelimmary Objt!ctions are "'ppro;>riate when: there is "legal lnsufliciency of a
plewng (demurrer)," PaR CivP I028(aX4\ Th.lcg.1 ,"",dan! under which !Ju, Court
decides a Demurrer Is AS follows' "In the rt"Vu:w
or prelimmary objecttons fin the nuture
of a dLlmurrcr] . the facts thai are well·pleaded, malenal, and telC\lflnl will be COJ)sidcrcd
es true, together with such reasonable
~ nfi}t'ences
as may be drawn from such facts."
Mellon 8unk. N.A . I'. i'obmyl v. r .. blnyi, 437 Po. Super 559,650 A.2d 895 (1994).
In 3ddiIIOIl, "[pjrchmmary objections. the c:nd Il:'Sull of which would be dismissal
of a cause of action. should be su5t"lncd onl), in t'~ses that are clear and free from doubt.·'
HOlO.'er ,. Bo .....e,.. 531 Pa. 54, 611 A,2d 18), 182 (1992).
objCClions should be
gtAl'ltcd
Moreover, preliminary
"only where u appears with Ct'T13iolY Ihat, upon the fflcts
'!\'crrcd, the lew will not ulloVr the pilllnuff to recover' Snare v. Ebensburg POI4'U Co.,
431 Pa. Super 515, 637 A.2d 296 (1993) (dl,tion ami ned), appeal denltd 518 Pa. 627.
646 A.2d 1 1 ~1 (1994\, Moreover, when the plamuff bas.. his ,ause of action "pon a
y,:rilmg. the writing may be referred (0 for purposes of deciding a demurrer, SaJchel/
Inowranc" PllJcement Facilir)/ qJ PD. , 141
\I
ra. Super 287, 292. 361 A.2d 315. 311 (1970)
(citillK Line LC).'iftgtop Lmnbf!r &. Millwork, Co. Inc v. Pemu}'/YUnia Publishing Corp,.
4S1 P. 154.301 A.2d 6M (19731).
I.
Ii
!/
P 1/10
, ------r-----------------------------At;.Cording to the Pennsylvania SLIprelTte Court, a plaintiff muse
e.~lahHsh
three
Clt!11hmlS to reooVl'f in 0 legal malpracucc action: (I) the employment of" the anorney OT
other b.1sis for dutYi (2) thd fuilurc of [be attorney to exercise ordinary ':'ikill and
knowledge.; nnd (3) fhal such failure wtullhe pn.lxirmltt: cause of damage to ihe plaintiff,
Ri::o v, Elaines, 520 P•. ~g4, 499, 555 A,2d ;;8. 65
(19~9).
See al,a, Schenkel Y, Mo"II.11.
266 P•. Super. 396, 405 A2d 493 (1979) (quotillg IL Mallen & Levi!, Legal Malpractice,
123 1971»). "in essence, a legal ma1llfucti<z lletiou In Pennsylvama requi res the plamtiff
10 prove thar he had a \ lllhlc: cause of actiOli against the party he wished to
su~
10
th~
underlying case and th!:it the 2Homoy he hired wus negligent in prosecuting or d\'fc;1ldJn~
the underlYll1g
C3Se
{often refe!Tl'tl to as proving a 'case within
II.
case')." LIiUS/u'·
1'.
Corbol/. 551 Pa. 275. 281 714 A.2d 1027. 1030 (1998). citing Ri=<>. 555 A.2d at 68.
"Based upon ilie opm!ons front this Honorable Court .and the- SUPCf10f Coun, it is
apparent that neither Poolc's alleged "failure to obyxl to Ihe e-mail" nor Poole's allegeo
com:t!ssion "'that \:(llJn:;d fot the HOUsing Authoriry had received an infonne.l opinion
&run HUD" were the cause of any damage
iO rb~
deciSIon th:1t the funds could be distributed direclly
Pllli1u iITs. Rather, in (caclung its
(0
Shermt!ycr, Judge Linebaugh
explained hi:l rationale by :lunmg that "[eJonullunily holding contempt hcanngs docs
nothing to i.tOvance thIS matter toward resolution except to run up additional altorneys'
fee~
and CO$ts," and.. thc:r'l'ror'l:, he direcled the Housing Authority to ''pay ll) [Shenni'!yer]
the sum of$18,592.01 ," representing ''the judgmenl amount imL&'Cd ugainst the [Housing
Authority]
G!:I
garnishee." h also appears thot Judge. Liu{:baugh did not usc the HUD
JO:>
P8J1O
lZ 15405Z50~
"._- - - - * - - - - - - - - - - - - - Informal opimonlc-mail as B basis for his
deci ~ion .
tnstcad, Judge Linebaugh slaled thai
Ihe umount owed was an "ad\lance relocation payment" Ilnd, tllerefore, according, tv the
Court, 11 did not act 10 conlrtivcntlon of49 C.fR.
Furthermore, tbe Superior Court upheld
~
24A03(e.)(6)
Jud~e
Lirtcl>augh's dccISlon. In doing so.
the Supcnor Court djJ not rely on the HUQ infonntll opinionlc-mail, although tt is
rclercnced. This Court cannot find any suppOrt 10 elther Coun's opiI1lon Thai Ihe
"infon:nal opiruon" was relied on by I!ithcr Coun in reaching its decisIOn.
2) P(tlimiruuy Objection, pursUilI1t 10 P.:t.ItC.P, 1028{a)(4), for the Legal
Insufficiency of Plalntiffs l Porutive Damage Claims,
Defendllnt make:; thelt second Preliminary Objection to Plainuffs' Complamt under
Pa. R.C-P. Rule 1028(a) 14) aUcgmg PI. lOtiff, f.i1,. ,Iote facts ,h81 support a cla,m for
purutivc damages sought agi!lT1st Defendant. "It is well settled that pumtl "'~ damuges will
Ue only
til
t:3SCS of outrageous
~havlor,
where defendant's egrcsiou.q conduct lihnws
either nn evil motive or reckless indifference to the nghts (If owers. Punitive damages tre
appropnah: when tUJ individual's actions are of such an outrageous nature as to
dcmorufrntc intentional, WIllful , wanton, or recltless CODdul;t," Slappo \I J 's D1tvdopmenJ
Associares, /IIC., 791 A.2d 409, 41 7 (Pa. Super_ CI. 2002) (citing Bonnar ,. MiII'r, 701
A.2d 1.12, 1'2 (Po. Super. Ct. (997)).
"OUItogool.ls conduct" hilS been defined O1S on (ll;t done with a bad motive or with
a reckless rndiffc:rcncc to the Interests of oth(,'fS. See Phillips \'. Cricket Ughters, ~83
A.2rl 439, 445 lPa. 2(05), Rcckless indlfferenco means thai .. the BctOT has inte:nric,mwly
p,,~
done an atrt, of an unreasonable chm-dcter. and
obvIOUS t1lllt
dl~'Tegard
to a nsk known (0 him or 50
he must be taken 10 Lave bocn awu.re oftl cmd sa gn~at as to make it hIghly
probable that harm YIlU fOllow ,' McCeJJaTl \' Heallh Malntenancc
Orgam~Qll0n
oj
Pcmlsy/vol>iu, 604 A.2d 1035, 1061 (Pa Super 19m),
TO award punitive dBmllges in Pcnnsylvama.
there. :nUS! be sufficient evidence U,I
cslablish "( I) • defendant had a subjective appreciation
~f
the ri,k of harm to winch the
plamtiIT was oxposed and thai (2) he Jctcd, or failed to act, as the case rna y be,
In
C::OffiJl.!ious disregard of that nsk.'· HllJcMnsoll 'v. Ludd)'1 870 A.2d 766,712 (Ps. 2005)
In thIS ca,t, PlainllIT, allege thot Defendant "f.H[ed! 10 object to the c-IDall from
e. HUO staff employee" and that "Defendant co[)ceded that counsel for !he Hom.mg
Acihonry had
",CCIVer!
an infonnal opinIon !Tom HUD." (Complaint1il42 and 43) The
allegations 00 not, as a matter of law. establish
th~t
Defendant acted with reckless
indifference to PI2.innffs· righls, nor do the> esrablish the outrageous conducf
Penn~ylv3T1\a
r~uired
by
law U, ..:;upport u claim l'Or punitlVt damuges, Therefure, Oelcndants
prdhninary obJection~ are granted
BY THE COURT
Ii C. ADAMS, JUIIG!!
Dated: Sep(~mbcr J'd, 1013

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