Attorney's Sexual Misconduct Towards a Client Found to Constitute Viable Basis for Legal Malpractice Claim

In the case of J.C. v. Fanucci & Kolcharno, No. 2022-CV-3490 (C.P. Lacka. Co. Feb. 4, 2025 Nealon, J.), the court addressed various Preliminary Objections filed in a case where a client sued her former attorney and his law firm for wanton and reckless legal malpractice, intentional infliction of emotional distress, breach of fiduciary duty, along with claims for vicarious liability, negligent hiring, supervision, and retention relative to claims that an attorney at the law firm pressured and extorted the client to engage in sexual activity with him as a condition of his continued representation of the client relative to criminal court matters. 

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas, in a 56 page Opinion, held, in part, that an attorney’s sexual misconduct toward a client constituted a viable basis for a legal malpractice action.

The court rejected the defense claims that the Plaintiff would need to have alleged that she had been found innocent in her underlying criminal matter in order to pursue legal malpractice claims against her attorney. The court rejected that argument, in part, because the Plaintiff did not claim that she had been wrongfully convicted relative to the underlying matter.

In this decision, the court overruled the attorney’s Preliminary Objections to the Plaintiff’s claim of malpractice, breach of fiduciary duty, and with regard to the claims of intentional infliction of emotional distress.

The court additionally overruled objections by the Defendant attorney’s law firm with respect to the Plaintiff’s claims against the firm for vicarious liability and negligent hiring.

The court additionally allowed the Plaintiff to proceed with the claims of recklessness and punitive damages. In ruling in this regard, the court cited, in part, to a Pennsylvania Bar Quarterly article by Daniel E. Cummins that provided an overview of recent Pennsylvania jurisprudence on the viability of claims of recklessness in personal injury matters based on claims of negligence.

Anyone wishing to review a copy of this decision may click this LINK.

Supreme Court of Pennsylvania Allows Legal Malpractice Claim Based Upon Scope of a Release to Proceed

In the case of Khalil v. Williams, No. 24 EAP 2021 (Pa. July 20, 2022) (Maj. Op. by Todd), the Pennsylvania Supreme Court addressed the issue of whether the Plaintiff’s legal malpractice claims against her former attorneys were barred under the Pennsylvania Supreme Court’s previous decision in the case of Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 587 A.2d 1346 (Pa. 1991), which held that a Plaintiff could not sue his or her attorney on the basis of the adequacy of a settlement to which the Plaintiff had agreed, unless the Plaintiff alleged that the settlement was the result of fraud.

After reviewing the record on appeal before it in this case, the Pennsylvania Supreme Court ruled that the Plaintiff’s Complaint demonstrated that the Plaintiff was not merely challenging the amount of her settlement, but rather was alleging that the attorneys provided incorrect legal advice regarding the scope and effect of the Release presented by the insurance carrier. As such, the Pennsylvania Supreme Court held that the prohibition set forth in the Muhammad case on legal malpractice lawsuits based upon the adequacy of settlements was not implicated by the record in this case.

Anyone wishing to review a copy of the Majority Opinion by Justice Todd for this decision may click this LINK.

The Concurring Opinion by Justice Wecht may be viewed HERE.

The Concurring Opinion by Justice Mundy may be viewed HERE.

Source of image:  Photo by Andrea Piacquadio from www.pexels.com.

Occurrence Rule under Statute of Limitations Applied in Legal Malpractice Suit

In the case of Keystone Custom Homes, Inc. v. Appel & Yost, LLP, No. 2015-07661-PL (C.P. Chester Co. Dec. 18, 2020 Tunnell, J.), the court, sitting without a jury, ruled in favor of the Defendant law firm in a legal malpractice claim.

Of note, the court found that the Plaintiff’s legal malpractice claim, in which it was alleged that the Defendants negligently prepared a public offering statement for them, was barred under the occurrence rule as the statute of limitations period had begun to run upon the happening of the alleged breach of duty, that is, when the Defendant prepared and provided them with an allegedly erroneous public offering statement back in 2007.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 4, 2021).

Pennsylvania Supreme Court Declines to Adopt Continuous Representation Rule for Attorney Malpractice Claims

In the case of Clark v. Stover, No. 2 MAP 2020 (Pa. Dec. 22, 2020) (Op. by Saylor, J.), the Pennsylvania Supreme Court was requested by the Plaintiff to adopt the continuous representation rule, which is applicable in a number of other jurisdiction, to toll the statute of limitations in this professional liability action based upon alleged attorney malpractice. In the end, the court denied the Plaintiff’s request that the Court adopt this rule. 

The Court reasoned that the statute of limitations are legislative in nature and that any change in the law should come from the general assembly.

At the trial court level of this case, the court found that the Plaintiffs in this legal malpractice claim were aware of the alleged negligence for more than four (4) years before they filed their malpractice suit. As such, the lower court found that the claims were time-barred by the two (2) year statute of limitations applicable to negligence claims as well as the four (4) years statute of limitations applicable to any contract claim.

At the Superior Court level, that court had enforced the “occurrence rule,” which holds that the statutory period commences upon the happening of the alleged breach of duty, which amounts to either a duty of care under the negligence doctrine or, any duty from an agreement for purposes of contract law. The Superior Court had refused the Plaintiffs’ request that that court adopt a continuous representation rule, under which the applicable statute of limitations would not begin to run until the date on which the Defendants’ representation was terminated.

As noted, the Pennsylvania Supreme Court rejected the request that it adopt the continuous representation rule.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 5, 2021).

Court Finds No Jurisdiction Over Legal Malpractice Claims

In the case of Dakota Oil Processing, LLC v. Hayes, No. 2018-10444-CT (C.P. Chester Co. April 16, 2020 Tunnell, J.), the court dismissed the Plaintiff’s legal malpractice Complaint after finding that neither general nor specific personal jurisdiction existed over the Defendants.

According to the Opinion, the Plaintiff was a limited liability company formed to develop and operate a crude oil refinery in North Dakota. In order to raise money in this endeavor, the Plaintiff entered into a collateral transaction loan with a venture financing firm. After the Plaintiff allegedly lost a $2.5 million dollar escrow payment, it filed this lawsuit for legal malpractice. 

The court noted that, generally speaking, it could exercise personal jurisdiction over a Defendant based upon either general jurisdiction or more specific, case-linked jurisdiction. 

Under the rules pertaining to general jurisdiction, a party can be sued in any state court for any claim regardless of where the underlying actions of the claim occurred where a Defendant can be found to be “at home” in the forum state. Under issues pertaining to specific jurisdiction, a party could be hailed into court on issues deriving from or connecting with the very controversy that established jurisdiction.

The court noted that one Defendant was a resident of Virginia and did not consent to jurisdiction in Pennsylvania. Another Defendant was a partnership formed in another state and which had also not consented to personal jurisdiction in Pennsylvania. The court ruled that none of the Defendants at issue were registered to do business in Pennsylvania and did not carry on any continuous or systematic part of its business in Pennsylvania. As such, no general personal jurisdiction was found. 

Under the issues of specific personal jurisdiction, the court found that no Defendants had purposefully availed themselves of the privilege of conducting business within Pennsylvania or purposefully directed its conduct in Pennsylvania. The court also noted that, the Plaintiff’s claims did not arise out of or relate to any activities by the Defendant within Pennsylvania. Lastly, the court also noted that, in order for jurisdiction to be fair and reasonable, a finding of jurisdiction must not offend traditional notions of fair play and substantial justice. 

The court found that the contacts relied upon by the Plaintiff in an effort to establish specific jurisdiction were very minimal and consisted only of limited email and telephone contacts, none of which communications had anything to do with the Plaintiff’s claims. 

As such, the court found that there was neither general nor specific personal jurisdiction to be exercised over the moving Defendants. Accordingly, the Preliminary Objections seeking the dismissal of the Complaint with prejudice were sustained. 

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 1, 2020).

Should you need an attorney to serve as an expert witness in your legal malpractice case, either on the plaintiff's side or the defense side, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-319-5899.

The Long Arm of the Law Hales NY Attorney Into Court in Pennsylvania

In the legal malpractice case of Rock v. Russo, No. 7605-CV-2019 (C.P. Monroe Co. March 6, 2020 Zulick, J.), the court addressed issues pertaining to jurisdiction over a non-resident under the long-arm statute and based upon minimum contacts by the Defendant attorney in Pennsylvania. 

According to the Opinion, the New York attorney was representing the Plaintiff in a personal injury matter arising out of an incident that occurred in Pennsylvania. 

The attorney allegedly initially represented the Plaintiff and pursued the claim but then allegedly advised the Plaintiff that he was terminating his representation. According to the Plaintiff, the New York attorney allegedly mistakenly advised her on the applicable statute of limitation and, as a result, the Plaintiff was barred from pursuing her claim.

The Plaintiff filed this legal malpractice suit. The Defendant responded with Preliminary Objections to the Complaint, arguing, in part, that the court could not execute jurisdiction over the New York attorney or his firm because the Defendant did not have sufficient minimum contacts with Pennsylvania. 

While the court noted that the Defendants had demonstrated that there had been no continuous and systematic business contacts by the firm within Pennsylvania, the court still found that the Defendants availed themselves to the foreign state and established minimum contact to support in personam jurisdiction by undertaking the representation of a client who had been injured in Pennsylvania. As such, the Defendant’s Preliminary Objections were overruled. 

Anyone wishing to review this decision may click this LINK.   

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 12, 2020).

Should you need an attorney to serve as an expert witness in your legal malpractice case, either on the plaintiff's side or the defense side, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-319-5899.

Punitive Damages Claim Allowed to Proceed in Legal Malpractice Action

 

In the legal malpractice case of Perez v. Mathis, et.al., No. 1769 - CV - 2018 (C.P. Monroe Co. Sept. 6, 2018 Williamson, J.), the court addressed an issue of first impression in Pennsylvania with regards to whether a claim for punitive damages should be allowed to proceed in these types of actions.  

The court noted that there was a considerable split of authority on how punitive damages are treated for purposes of professional negligence actions when reviewing cases from around the United States.  

The court noted that several states hold that punitive damages are meant to be a deterrent and a punishment for wrongdoing, which cannot be accomplished when they are assessed against anyone other than the original wrongdoer.  

Other courts emphasize the need to place the innocent client in the same position as he would have been absent the attorney’s negligence.   

In the end, the court allowed the Plaintiff to proceed on the claim for the lost punitive damages in the underlying bad faith claim as compensable damages in this legal malpractice suit.  The court ruled in this fashion as the Plaintiff was successful in the underlying lawsuit with substitute counsel and may have recovered punitive damages from the bad faith claim in that suit but for the original attorney’s alleged negligence in withdrawing the bad faith claim.  

More specifically, the Plaintiff had retained his original attorneys to pursue a lawsuit against Liberty Mutual Insurance Company.   The Plaintiff alleged that, over his objection, his original attorneys agreed to enter a stipulation to dismiss portions of the Plaintiff’s federal Complaint, including the claim for bad faith.    The Plaintiff alleged that the attorneys did so without his knowledge and indirect opposition to his expressed wishes. 

The Plaintiff eventually hired substitute counsel and ultimately secured a judgment against the insurance carrier on the remaining claims.  

In this follow-up legal malpractice case, the Plaintiff was additionally allowed to proceed on a  specific claim for punitive damages against the Defendant law firm.  The court denied the Preliminary Objections against the claim for punitive damages. 

The court found that punitive damages in the legal malpractice action were potentially warranted where the Plaintiff asserted that the attorney recklessly went against his wishes in the underlying action.  The court noted that a jury could potentially find that such acts or omissions by the Defendant law firm were outrageous.  As such, that claim was allowed to proceed.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).

Should you need an attorney to serve as an expert witness in your legal malpractice case, either on the plaintiff's side or the defense side, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-319-5899.

Summary Judgment Denied in Legal Malpractice Claim in Context of Real Estate Transaction

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently denied a motion for summary judgment legal malpractice and insurance policy and exclusions questions in the context of a real estate transaction and related title insurance in the Brogan case which has provided fodder on other related issues as previously summarized here on Tort Talk.

In this latest decision out of the case, Judge Nealon denied the defendant's motions for summary judgment on the grounds that genuine issues of material fact and credibility issues existed to allow the case to proceed to the jury.

Should you be facing issues in the context of legal malpractice claims and/or questions of exclusions under a title insurance policy, this Opinion provides a current status of the applicable law of Pennsylvania on these topics.  Judge Nealon's latest decision in Brogan can be viewed HERE.

Certificate of Merit Not Required in Case Against Attorney for Wrongful Use of Civil Proceedings

In the case of Sabella v. Estate of Gus Milides, 2010 WL 1080720, 2010 Pa.Super. LEXIS 78 (Pa.Super. March 25, 2010 Gantman, J.), the Pennsylvania Superior Court recently held that a Certificate of Merit is not required to support a lawsuit filed against an attorney when the underlying cause of action is for wrongful use of civil proceedings. The Court issued this ruling even though the suit raised questions about the attorney's professional judgment.

The primary rationale of the Superior Court in support of this decision was that the suit was filed against an opposing counsel, as opposed to counsel who formerly represented the Plaintiff.

In Sabella, the Plaintiff filed a lawsuit against the estate of a deceased attorney asserting a claim for abuse of process and wrongful use of civil proceedings. Counsel for the defendant estate of the attorney secured a Judgment of Non Pros pursuant to former Rule 1042.6 on the grounds that the Plaintiff failed to file a Certificate of Merit. Thereafter, the trial court denied the Plaintiff's Motion to Strike Judgment of Non Pros and the Plaintiff appealed the matter to the Superior Court.

In determining a Certificate of Merit was not required against a lawyer in an abuse of process/wrongful use of civil proceedings case, the Superior Court emphasized the "gist of the allegations involves actions [the decedent attorney] took as opposing counsel, not as [the plaintiff's] counsel." The Court also noted that, although the complaint "might raise questions of professional judgment beyond the realm of common knowledge and experience, [the plaintiff's] cause of action did not arise from within the course of a professional relationship with [the decedent attorney]."

Ultimately, the Sabella Court held that, even though the Plaintiff's allegations called into question various legal strategies and choices made by the decedent attorney, such allegations, in and of themselves, do not automatically make the case one of professional liability requiring a Certificate of Merit to proceed.

Accordingly, the Superior Court held a Certificate of Merit was not required in conjunction with the filing of an abuse of process/wrongful use of civil proceedings complaint against an attorney.


A tip of the hat to Matthew P. Keris, Esquire, of the Moosic, Pennsylvania office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.