Corliss, J. v. Lee A. Ciccarelli, PC ( 2022 )

J-S37018-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JUSTIN CORLISS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LEE A. CICCARELLI, PC D/B/A : No. 891 EDA 2021
CICCARELLI LAW OFFICES :
Appeal from the Order Entered January 11, 2021
In the Court of Common Pleas of Monroe County
Civil Division at 3129 CV 2020
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 4, 2022
Justin Corliss (Appellant) appeals pro se from the order sustaining the
preliminary objections of Lee A. Ciccarelli, PC d/b/a Ciccarelli Law Offices
(Ciccarelli), and dismissing Appellant’s complaint. We affirm.
This case is based on Appellant’s claim that Ciccarelli “failed to
adequately represent [Appellant] in a criminal matter.” Trial Court Opinion,
1/11/21, at 1. The trial count, which also presided in Appellant’s criminal
cases, explained:
The actions from which this case originates involve
underlying criminal cases that were initiated against [Appellant]
in 2013. [Appellant] represented himself in those cases for most
of the time before hiring [Ciccarelli] to represent him at [the] trial
held in 2016.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S37018-21
***
[Appellant] was ultimately convicted at trial in both actions
and sentenced to a period of incarceration. The convictions were
upheld on appeal. [Appellant] then filed Post-Conviction Relief Act
(PCRA) petitions on October 25, 2019 and October 28, 2019 in
each case. The PCRA petitions were denied on May 27, 2020 by
the trial court. [Appellant] then filed an appeal which is currently
pending before the Pennsylvania Superior Court.
Trial Court Opinion, 1/11/21, at 1-2.1
Appellant initiated the underlying civil action by pro se complaint filed
on May 26, 2020, and the trial court properly concluded Appellant’s claims
“sound in legal malpractice whether for breach of contract or negligence.”
Trial Court Opinion, 1/11/21, at 9. Appellant averred he “hired [Ciccarelli] to
represent him at trial in the criminal matters of Com. v. Corliss, CP-45-2173-
2013 and Com v. Corliss, CP-45-1749-2013.” Amended Complaint, 8/17/20,
at 2. Appellant maintained Ciccarelli “refuse[d] and fail[ed] to defend
[Appellant] ... [resulting in his being] falsely convicted.” Id. at 3-4. Appellant
claimed he “would have been acquitted ... had [Ciccarelli] performed the
necessary legal services required to conduct a competent defense[.]” Id. at
4. Appellant characterized Ciccarelli’s actions as “negligence.” Id. at 7. He
____________________________________________
1The Superior Court affirmed the denial of PCRA relief and the Pennsylvania
Supreme Court denied leave to appeal. See Commonwealth v. Corliss, 253
A.3d 327 (Pa. Super. Apr. 30, 2021) (unpublished memorandum), appeal
denied, 2021 WL 5576783 (Pa. Nov. 30, 2021); Commonwealth v. Corliss,
253 A.3d 322 (Pa. Super. Apr. 30, 2021) (unpublished memorandum), appeal
denied, 2021 WL 5576776 (Pa. Nov. 30, 2021).
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J-S37018-21
also claimed Ciccarelli breached his duty under the parties’ fee agreement,
although Appellant failed to identify a specific contractual provision, and
simply stated the fee agreement “implied more than two poorly dressed
people showing up to listen to testimony for two days and infrequently
playacting as counsel.” Id. at 6. Appellant asserted Ciccarelli’s “negligent
conduct, as aforesaid, was the proximate cause of [Appellant’s] injuries.” Id.
at 7.
The trial court recited the procedural history that followed:
On July 7, 2020, [Ciccarelli] filed a Notice of Intention to
Enter Judgment of Non Pros pursuant to Pa.R.C.P. 1042.6 for
failure of [Appellant] to file a certificate of merit, as required in
professional liability cases. On or about July 10, 2020, [Appellant]
filed what purport[ed] to be a certificate of merit which he
personally signed. The certificate of merit was not signed by an
attorney for [Appellant], nor did it include a written statement
from a licensed professional regarding liability. [Appellant]
asserted in the certificate of merit that no testimony from a
licensed professional attorney was necessary because this action
is brought for alleged breach of contract. On July 29, 2020,
[Ciccarelli] filed a Motion to Strike [Appellant’s] certificate of
merit. On August 4, 2020, this [c]ourt issued a Rule to Show
Cause against [Appellant], requiring him to file a response to the
Motion on or before September 4, 2020. On August 17, 2020,
[Appellant] filed a Response to [Ciccarelli’s] Motion. He also filed
an Amended Complaint.
On August 26, 2020, [Ciccarelli] filed Preliminary Objections
to [Appellant’s] Amended Complaint. [Appellant] then filed
Preliminary Objections to [Ciccarelli’s] Preliminary Objections on
September 14, 2020. An Order was issued on September 17,
2020, setting forth a briefing schedule for the Preliminary
Objections. On September 24, 2020, [Ciccarelli] filed a Response
to [Appellant’s] Preliminary Objections to [Ciccarelli’s] Preliminary
Objections and a memorandum of law. On September 28, 2020,
[Ciccarelli] filed a Motion for Hearing. That Motion was denied by
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court order dated September 30, 2020. [Appellant] filed a Motion
to Strike [Ciccarelli’s] Response to [Appellant’s] Preliminary
Objections. [Appellant] also filed a Motion to Quash/Dismiss
[Ciccarelli’s] Motion to Strike the Certificate of Merit on October
13, 2020. [Ciccarelli] filed a Response thereto on October 15,
2020.
Trial Court Opinion, 1/11/21, at 2-3 (footnote omitted).
On January 11, 2021, the trial court issued its opinion and order opinion
sustaining all of Ciccarelli’s preliminary objections, overruling and dismissing
Appellant’s preliminary objections, denying Appellant’s motion to strike
Ciccarelli’s response to Appellant’s preliminary objection, granting Ciccarelli’s
motion to strike Appellant’s certificate of merit, denying Appellant’s motion to
quash Ciccarelli’s motion to strike, and dismissing Appellant’s complaint. See
id. at 20-21. Due to a breakdown in the court system, Appellant did not
receive the order for several months.2 On March 18, 2021, Appellant filed a
nunc pro tunc motion to amend his complaint. The court denied the motion
because the January 11, 2021 order “was a final order in this matter.” Order,
3/22/21, at 1. However, because of the mail difficulties, the court granted
Appellant additional time to file for reconsideration and appeal nunc pro tunc.
____________________________________________
2 The court “sent [the order] to [Appellant at] SCI Coal Township with the
required Court Access Code; however, it was returned from SCI Coal
Township.” Order, 3/22/21. The court mailed the order to Appellant at SCI
Coal Township “at least twice, and once to the Florida Clearinghouse address.”
Id.
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Id. On April 16, 2021, Appellant filed a motion for reconsideration, which the
trial court denied. On April 21, 2021, Appellant filed a notice of appeal.3
Appellant presents two issues for review:
1. Did the court err in adopting [Ciccarelli’s] ploy of
recharacterizing the breach of contract complaint as an
estopped tort action, when it dismissed on preliminary
objections, where the elements of a breach of contract are
established?
2. This court established in Krauss v. Claar[, 879 A.2d 302(Pa. Super. 2005,] that a certificate of merit is not required
in breach of contract actions; thus, did the lower court err
in requiring one merely due to [Ciccarelli] being an attorney,
when [Appellant] does not sue for violating a public or social
duty and no expert testimony is required to prove the
breach?
Appellant’s Brief at 6.
Pertinently,
[i]n determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. Clemleddy Constr., Inc. v. Yorston, 810
A.2d 693 (Pa. Super. 2002). When sustaining the trial court’s
ruling will result in the denial of claim or a dismissal of suit,
preliminary objections will be sustained only where the case is free
and clear of doubt, and this Court will reverse the trial court’s
decision regarding preliminary objections only where there has
been an error of law or abuse of discretion. Id.David R. Nicholson, Builder, LLC v. Jablonski, 163 A.3d 1048, 1051 (Pa.
Super. 2017) (citation omitted).
____________________________________________
3 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Here, the crux of Appellant’s argument is that Ciccarelli “did not
‘represent’ [him] in any proceeding, filed no praecipe of appearance, argued
no issue in any court for [Appellant], but, acted merely as a jobber.”
Appellant’s Brief at 11 (citation omitted). Nonetheless, he denies that he is
claiming legal malpractice, and describes the trial court’s finding to the
contrary as “patently absurd,” and the result of “tortured decision making.”
Id. at 12. Appellant improperly engages in a rambling discussion of agency
law in an attempt to explain how his negligence claims constitute breach of
contract. Id. at 18-23.
Ciccarelli responds that the trial court properly dismissed Appellant’s
claims, “whether sounding in tort or in breach of contract for legal
insufficiency.” Ciccarelli’s Brief at 12. Ciccarelli asserts Appellant “failed to
provide any factual specificity,” and argues Appellant is not entitled to relief
where the “essence of [his] allegations was that the ‘representation’ by
[Ciccarelli] must have been lacking because the jury ultimately convicted him
of the criminal charges.” Id.
We agree with Ciccarelli and the trial court, which found that without
“specific facts averred that would have led to a different result, in this case an
acquittal, [Appellant] is unable to meet the requirements necessary to bring
a claim against [Ciccarelli] as a criminal defense attorney.” Trial Court
Opinion, 1/11/21, at 7; see also id. at 8 (stating Appellant “has failed to
allege facts that even if true, would establish causation and damages for legal
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malpractice.”). Moreover, upon review, we find the Honorable David J.
Williamson, sitting as the trial court, has capably detailed — with reference to
the record and citation to applicable legal authority — why Appellant’s issues
lack merit, and why, regardless of whether Appellant’s complaint sounds in
contract or tort, he was required to file a certificate of merit signed by an
attorney. Accordingly, we adopt Judge Williamson’s January 11, 2021 opinion
as our own in deciding this appeal. The parties shall attach a copy of the trial
court opinion to any relevant future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
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47Circulated 12/15/2021 03:59 PM
OPINION-ORDER.pd
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
JUSTIN CORLISS, NO. 3129 CIVIL 2020
Plaintiff
vs. :
LEE A. CICCARELLI, PC :
d/h/a CICCARELLI LAW OFFICES,
: MOTION TO STRIKE AND Defendant
: PRELIMINARY OBJECTIONS
OPINION
This matter comes before the Court on several filings. The Defendant first filed a
Motion to Strike Plaintiffs Certificate of Merit in a professional liability claim. The Defendant
also filed Preliminary Objections to Plaintiffs Amended Complaint. Plaintiff has filed
Preliminary Objections to Defendant’s Preliminary Objections. The Plaintiff in this action is
Justin Corliss (hereinafter “Plaintiff”). The Defendant in this action is Lee A. Ciccarelli, P.C.,
d/b/a Ciccarelli Law Offices (hereinafter “Defendant”). The allegations in this case allege that
Defendant failed to adequately represent Plaintiff in a criminal matter.
The actions from which this case originates involve underlying criminal cases that
were initiated against Plaintiff in 2013. Plaintiff represented himself in those cases for most of
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47 OPINION-ORDER.pd
the time before hiring Defendant law firm to represent him at trial held in 2016.1 Defendant was
hired by Plaintiff on or about February 7,2016. The trial in the underlying actions occurred from
May 31 to June 1,2016. Attorneys in the Defendant law firm entered an appearance on behalf of
the Plaintiff on February 24,2016 for one of the underlying actions. On March 24,2016, an
attorney in Defendant law firm entered an appearance on behalf of the Plaintiff in the other
underlying action. Both underlying actions were tried together. Plaintiff was ultimately convicted
at trial in both actions and sentenced to a period of incarceration. The convictions were upheld on
appeal. Plaintiff then filed Post-Conviction Relief Act (PCRA) petitions on October 25,2019 and
October 28,2019 in each case. The PCRA petitions were denied on May 27,2020 by the trial
court. Plaintiff then filed an appeal which is currently pending before the Pennsylvania Superior
Court.
Plaintiff filed his first Complaint in this matter against Defendant on or about May
26,2020. The allegations included claims sounding in legal malpractice. On July 7,2020,
Defendant filed a Notice of Intention to Enter Judgment of Non Pros pursuant to Pa.R.C.P.
1042.6 for failure of the Plaintiff to file a certificate of merit, as required in professional liability
cases. On or about July 10,2020, Plaintiff filed what purports to be a certificate of merit which he
personally signed. The certificate of merit was not signed by an attorney for the Plaintiff, nor did
it include a written statement from a licensed professional regarding liability. Plaintiff asserted in
the certificate of merit that no testimony from a licensed professional attorney was
i plaintiff was originally represented in the underlying criminal actions by Robert Saurman, 1SlDefeSdant’s law trial.
2
47 OPINION-ORDER.pd
necessary because this action is brought for alleged breach of contract. On July 29,2020,
Defendant filed a Motion to Strike Plaintiffs certificate of merit. On August 4,2020, this Court
issued a Rule to Show Cause against the Plaintiff, requiring him to file a response to the Motion
on or before September 4,2020. On August 17,2020, Plaintiff filed a Response to Defendant’s
Motion. He also filed an Amended Complaint.
On August 26,2020, Defendant filed Preliminary Objections to Plaintiffs
Amended Complaint. Plaintiff then filed Preliminary Objections to Defendant’s Preliminary
Objections on September 14,2020.2 An Order was issued on September 17,2020, setting forth a
briefing schedule for the Preliminary Objections. On September 24,2020, Defendant filed a
Response to Plaintiffs Preliminary Objections to Defendant’s Preliminary Objections and a
memorandum of law. On September 28,2020, Defendant filed a Motion for Hearing. That
Motion was denied by court order dated September 30,2020. Plaintiff filed a Motion to Strike
Defendant’s Response to Plaintiffs Preliminary Objections. Plaintiff also filed a Motion to
Quash/Dismiss Defendant’s Motion to Strike the Certificate of Merit on October 13,2020.
Defendant filed a Response thereto on October IS, 2020.
Discussion
A. Preliminary Objections -
We will first address the preliminary objections that were filed. Preliminary
objections may be raised on the following grounds:
2
It is also noted that Plaintiff filed a Motion for Recusal on September 14,2020 which was denied by order dated
September 17,2020. The undersigned judge also presided over Plaintiff’s criminal cases giving rise to this action.
3
47 OPINION-ORDER.pdf
(1) Lack of jurisdiction over the subject matter of the action or the person
of the defendant, improper venue or improper form of service of a writ of
summons or a complaint;
(2) Failure of a pleading to conform to law or rule of court or inclusion of
scandalous or impertinent matter;
(3) Insufficient specificity in a pleading;
(4) Legal insufficiency of a pleading (demurrer)
(5) Lack of capacity to sue, non-joinder of a necessary party or misjoinder
of a cause of action
Pa. R.C.P. No. 1028(a).
1. Demurrer for legal insufficiency for failure to state a claim -
The Defendant’s first objection is in the nature of a demurrer to strike the entire
Amended Complaint for failure to state a claim due to legal insufficiency. Preliminary objections
in the nature of a demurrer will be granted where the contested pleading is legally insufficient.
Caltaeirone v. Ceohalon. Inc.. 2018 Pa. Super. 158,190 A.3d 569, 599 (2018); Pa.R.C.P.
1028(a)(4). Preliminary objections to a complaint admit all material facts set forth in the
pleading and the inferences reasonably deducible therefrom are taken as true. See Caltaeirone.
supra. A demurrer will not be sustained, however, unless on the face of the complaint the claims
made cannot be recovered under the law. Chorba v. Davlisa Enterprises. Inc.. 303 Pa. Super 497,
450 A.2d 36,38 (1982). The complaint must not only apprise the defendant of the claims being
asserted, but it must also summarize the essential facts to support that claim. Landau v. Western
Pa. Nat’l Bank. 282 A.2d 335,339 (1971).
In this matter, Defendant alleges that the entire Amended Complaint should be
dismissed as the Plaintiff has failed to provide sufficient factual averments to support his claim.
First, we note that there is an argument by both parties as to what the legal basis is for the
allegations being asserted by the Plaintiff. The Defendant alleges in the Preliminary Objections
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that Plaintiff s claims sound in tort, but the Amended Complaint also references that the parties
had a contract for legal representation. Plaintiff argues in his Preliminary Objections and in his
brief that his claims are solely for breach of contract. However, his claims reference negligent
acts of the Defendant. An action for legal malpractice may be brought in either contract or tort.
Wachovia Bank, N.A. v. Ferretti. 935 A.2d 565 (Pa. Super. 2007).
Legal malpractice claims alleging negligence require a higher level of causation
to be proven than in a traditional negligence action. Fiorentino v. Rapoport. 693 A.2d 208,217
(Pa. Super. 1997). Legal malpractice claims generally require a plaintiff to prove that they had a
viable cause for relief in the underlying case and that their attorney was negligent in their
representation. McPeake v. William T. Cannon. Esquire. P.C.. 381 Pa. Super. 227,553 A.2d 439,
441 (1989). In order to establish this claim, a plaintiff/aggrieved client must demonstrate three
basic elements: (1) employment of the attorney or another basis for a duty owed to a plaintiff; (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. 552 Pa. 275, 714 A.2d
1027,1029 (2008).
Furthermore, a plaintiff must show that, but for the breach of the duty by the
lawyer, the purported result that harmed the plaintiff would not have occurred. Id. In this case,
Plaintiffs burden is to show that he would have been acquitted of all counts or that all counts
would have been dismissed, if not for the actions or inactions of the Defendant. If a loss would
have occurred either way, then a plaintiff will not succeed in a claim for legal malpractice. Id,
Finally, to bring an action against a criminal defense anomey resulting from his or her
representation, foe plaintiff must esfoblish foe following elements: (1) foe employment of foe
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attorney; (2) reckless or wanton disregard of the plaintiffs interest on the part of the attorney; (3)
that the attorney’s culpable conduct was the proximate cause of an injury suffered by the
plaintiff, i.e. “but for” the attorney’s conduct, the plaintiff would have obtained an acquittal or
complete dismissal of the charges; (4) that as a result of the injury, the plaintiff suffered
damages; and, (5) that the plaintiff pursued post-trial remedies and obtained relief upon attorney
error. Bailev v. Tucker. 621 A.2d 108 (Pa. Super. 1993)3; Slaughter v. Rushing. 683 A.2d 1234(Pa. Super. 1996).
In a breach of contract action, an attorney who agrees to represent someone for a
fee has impliedly agreed to provide professional services consistent with those expected by the
profession at large. See Wachovia, supra. Quite simply, a contract to provide legal services
requires that the attorney act in a manner that comports with the legal profession in general.
Gorski v. Smith. 812 A.2d 683 (Pa. Super. 2002). The elements for a legal malpractice claim
based on breach of contract are: (1) The existence of a contract; (2) a breach of a duty imposed
by the contract and (3) damages. Id. To avoid a waiver of either a claim based in contract or tort,
a plaintiff must assert them together in one action. Wachovia, supra.Here, Plaintiff alleges that Defendant failed to illicit evidence and facts he knew
were available in Plaintiffs case at time of trial. Additionally, Plaintiff alleges that Defendant
refused and failed to conduct a cognizant defense at the end of the prosecution’s case in chief
and refused to seek a dismissal. Plaintiff also argues that Defendant failed to properly cross
examine witnesses. Finally, Plaintiff asserts that Defendant failed and refused to correct or
3
In Bailev. die malpractice claims were brought in both trespass (negligence) and assumpsit (breach of contract).
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challenge erroneous determinations of law regarding elements of the crimes, refused and failed
to hold the prosecutor and court to the burden of conducting a fair trial, and failed to correct or
challenge incorrect statements of law regarding elements of the crimes the jury was required to
find and which Plaintiff was on notice to defend against at trial. Plaintiff alleges that Defendant
failed to provide their best effort to represent him as any competent attorney would. See
Amended Complaint, paragraph 9.
Defendant objects to the Amended Complaint in part because Plaintiff fails to
aver specific facts necessary to find legal malpractice either in a contract or tort claim. For
example, Plaintiff does not specify what facts or evidence Defendant should have known about
that could have been used to defend the Plaintiff. Additionally, while Plaintiff provided a list of
witnesses that he claims should have been called in his defense, he failed to specify and explain
how their testimony would have been used to result in an acquittal. Plaintiff also failed to
identify what evidence could have been used to challenge the credibility determinations of the
prosecution's witnesses. Furthermore, Plaintiff did not identify which portions of the trial were
unfair or what evidence or facts supported a demurrer to the Commonwealth's case. He also did
not specify what incorrect statements of law were made which Defendant failed to object to at
time of trial. Plaintiffs assertions are devoid of any specific facts to support the allegations in
tiie Amended Complaint. Without specific facts averred that would have led to a different result,
in this case an acquittal, Plaintiff is unable to meet the requirements necessary to bring a claim
against the Defendant as a criminal defense attorney.
Defendant also argues that even if the allegations are specific enough, Plaintiff
has still failed to allege anything that would be sufficient to support a legal malpractice claim.
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We agree with this assertion. Defendant’s exercise of professional judgment, even where the
Plaintiff does not agree with how the case was handled, would not be enough to justify a legal
malpractice claim. If an attorney acts in his professional capacity with ordinary skill, which is
based on an informed judgment, no malpractice can be found to have occurred. See Composition
Roofers Local 3Q/30B v. Katz. 398 Pa. Super. 564,581 A.2d 607,610 (1990). There is no
presumption that an attorney deviated from a standard of care just because the attorney failed to
succeed. See Enterline v. Miller. 27 Pa. Super. 463 (1905). In other words, a plaintiff must allege
specifically how the attorney failed to act with ordinary skill and how those actions led to a
conviction in a criminal case.
Here, the Amended Complaint of the Plaintiff simply avers that he disagrees with
the judgment exercised by Defendant because he was ultimately convicted at the end of the trial.
At paragraph 11 of the Amended Complaint, Plaintiff asserts generally that he would have been
acquitted provided Defendant’s attorneys had performed the necessary legal services required to
conduct a competent defense. However, Plaintiff does not allege any specific facts or evidence to
show that if Defendant had acted in a different manner, that the Plaintiff would have been
acquitted. Nor does Plaintiff allege how the Defendant failed to use ordinary skill and capacity as
a criminal defense attorney in the manner of the profession at large which led to a conviction.
Finally, Plaintiff attached the entire trial transcript of the underlying proceedings to the Amended
Complaint, but does not reference specific portions of the transcript in his allegations. Therefore,
Plaintiff has failed to allege facts that even if true, would establish causation and damages for
legal malpractice.
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Plaintiff argues that Defendant has no reason to view this as a professional
malpractice action in objecting to the Amended Complaint. He claims the Defendant has
concocted that theory out of thin air and that the objections are an unwarranted inference and
expression of opinion. Plaintiff asserts the Amended Complaint is not based in tort, but rather is
for breach of contract. As such, Plaintiff asserts in his Preliminary Objections that Defendant’s
Preliminary Objections should be dismissed for legal insufficiency. Plaintiff essentially argues
that a breach of contract claim against an attorney who represented that party is not a legal
malpractice action. We disagree with Plaintiffs assertion that die Amended Complaint sounds
solely as a breach of contract claim or that such a claim is not a legal malpractice action even if it
is solely a breach of contract claim.
Legal malpractice cases can be brought in either a tort (negligence) action or for
breach of contract. See Wachovia, supra.; Bailey, supra.; Gorski. supra. Failure of an attorney to
perform according to the standard of the profession in legal representation commits legal
malpractice. Id Whether styled as a negligence claim or a breach of contract claim, allegations
that an attorney failed to perform a duty required as a legal professional is a legal malpractice
action. Therefore, the claims made are legal malpractice even if Plaintiff s claims are solely for
breach of contract. Plaintiff has alleged a single claim for legal malpractice without any heading
of either a negligence or breach of contract action. Plaintiff alleges a written fee agreement
existed with Defendant and attached a copy of that fee agreement. However, he also uses
language synonymous with negligence actions, and words actually sounding in negligence as
well. This lack of specificity certainly creates confusion. But, the claims asserted by Plaintiff
sound in legal malpractice whether for breach of contract or negligence.
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Furthermore, we find that the Plaintiffs claims are made for negligence, and not
simply breach of contract. In paragraph 13 of his Amended Complaint, Plaintiff states that
Defendant “breached the contractual duty” and then generally lists things that counsel failed to do
properly at time of trial. In paragraph 14, Plaintiff then states that by the alleged conduct,
defendant failed to exercise the ordinary skill and knowledge possessed by attorneys in the
community.” This statement, and the failings of counsel listed in paragraph 13, are claims of
negligence, not breach of contract. In paragraph 15, Plaintiff also states in part “[b]y reason of the
foregoing negligence of the defendant’s constructive and actual breach of contract,” that Plaintiff
suffered damages, (emphasis added). In paragraph 16, Plaintiff then alleges “[djefendant’s
negligent conduct, as aforesaid, was the proximate cause of Plaintiffs injuries.” (emphasis added).
These allegations sound in negligence, which constitute a tort, and not claims for breach of
contract. Plaintiff even uses the terms “negligence” and “negligent conduct” in his allegations. In
addition, most of the paragraphs in the Amended Complaint allege that Defendant’s legal
representation was inadequate in some manner and that otherwise competent attorneys would
have acted differently. Those are claims for legal malpractice sounding in tort.
At best, it can be concluded that Plaintiff is asserting claims in both tort and breach of contract.
The various references to Defendant’s failings and negligent conduct, however, clearly represents
a tort claim for negligence.
Unfortunately, Plaintiffs allegations are not sufficient to support a professional
negligence claim by a criminal defense counsel. As stated above, Plaintiff has not specifically set
forth in what manner the Defendant failed to exercise ordinary skill and knowledge that other
attorneys in the profession at large would have done. Nor has Plaintiff alleged reckless or wanton
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disregard of the Plaintiff* s interest. Finally, Plaintiff has not alleged facts sufficient to show
that, “but for” the attorney’s conduct, Plaintiff would have obtained an acquittal or a complete
dismissal of the charges. Therefore, the Defendant’s Preliminary Objection for a demurrer as to
legal insufficiency for failure to state a claim will be granted and Plaintiffs Preliminary
Objection thereto will be dismissed.
2. Demurrer to Breach of Contract claim due to the “gist of the action doctrine”-
Defendant also objects to Plaintiff asserting both a tort and a contract claim in
his Amended Complaint. Defendant argues that the breach of contract claim is barred by the gist
of the action doctrine. The gist of the action doctrine has been followed by Pennsylvania Courts.
See Brunov. Erie Ins. Co.. 630 Pa. 79, 106 A.3d 48,60 (2014); Hart v. Arnold. 884 A.2d 316 (Pa.
Super. 2005). It is used to determine if a case should properly be brought as either a tort or a
breach of contract action. Bruno, supra. The doctrine operates to bar claims that are labelled or
ostensibly brought as a breach of contract action, but actually sound in negligence. Id. A tort
action for negligence and a breach of contract action both require proof of different elements.
The elements to prove that an attorney has committed legal malpractice due to professional
negligence or by breach of contract were set forth previously herein. The language used in a
complaint determines if a case is brought in tort or by breach of contract. Bruno, at 69-70. The
Bruno case set a departure from the previously decided cases of Bailey, supra, and Gorski,
supra., which had ostensibly allowed aUegations of both tort and breach of contract together in
civil actions.
Here, the Plaintiff alleges that his claims were brought solely as a breach of
contract action. He filed Preliminary Objections to the Defendant’s Preliminary Objections
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47 OPINION-ORDER.p Jf
(E.D. PA. 1995). In other words, there must be allegations of a “flat out failure to perform”
under the contract for a breach of contract claim alone, and not a “careless performance” of
contractual duties. Brenco Oil v. Blanev. 2017 U.S. Dist. LEXIS 204775 (E.D. Pa. 2017). These
federal cases are very persuasive when applied to this matter. The allegations made by the
Plaintiff constitute claims of a negligent failure to exercise ordinary care and are not specific
claims of failure to perform per the requirements of the parties’ contract. Quite simply, there are
no allegations that Defendant failed to follow specific instructions of the Plaintiff, or that a
specific provision of the contract was breached.
We also note that in Plaintiffs Preliminary Objections, he asserts that the contract
is an implicit agreement to provide the client with professional services consistent with those
expected of the profession at large. As set forth above, this language only further points to the
fact that what Plaintiff is claiming falls outside the scope of a breach of contract claim and is
actually a claim based in tort. Allegations of failing to conduct meaningful cross-examination,
failing to object or raise defenses, and failing to provide best efforts are allegations of
carelessness that sound in negligence. There are no facts alleged that are distinct from claims
sounding in professional negligence. The allegations of the Amended Complaint are a purported
contract claim that actually sounds in tort. As such, we find that Defendant has sufficiently
shown that the gist of the action doctrine applies. Plaintiff is alleging facts that sound in
negligence and not breach of contract. Defendant’s Preliminary Objection in that regard will be
sustained and Plaintiffs Preliminary Objection will be dismissed.
3. Demurrer for legal insufficiency as to breach of contract claims —
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Defendant has alleged that if there is any validity to the claims being solely for
breach of contract in the Plaintiff*s Amended Complaint, such claims should also be dismiggpri
due to legal insufficiency. Plaintiff* s Amended Complaint does not contain any specific counts
or headings. The allegations therein amount to claims of legal malpractice. To plead a viable
claim for breach of contract, a party must allege (1) the existence of a contract, including the
essential terms thereof; (2) a breach of a duty imposed by the contract; and (3) damages resulting
from the breach. See Lackner v. Glosser. 892 A.2d 21 (Pa. Super. 2006).
The “Trial Fee Agreement” attached to Plaintiff’s Amended Complaint is the
contract Plaintiff alleges was breached by the Defendant. The Agreement sets forth terms for
payment by Plaintiff for legal services. It sets forth the scope/duration of the legal representation.
The Agreement sets forth that no promises or guarantees are made as to the outcome. There is no
reference in the Agreement as to defenses to be explored, witnesses to be called, objections to be
made at trial, or legal strategy. It is a contract for Defendant to provide legal services through the
conclusion of a trial and Plaintiff’s agreement to pay for those services.
Plaintiff avers in the Amended Complaint that he paid for the services. He states
that those services were inadequate due to Defendant’s failure to do various things at time of trial
that led to his conviction. The allegations sound in negligence, and not breach of contract.
Plaintiff has not pointed to anything in the Agreement that Defendant failed to do specifically
that was required by that Agreement. Rather, Plaintiff alleges that Defendant “failed to provide
his best efforts to represent Plaintiff as a competent attorney would,” and “had defendant
performed the necessary legal services required to conduct a competent defense, with the skill
required to do so ” the defendant presumably would have been acquitted. Plamnff further alleges
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that Defendant “failed to exercise the ordinary skill and knowledge possessed by attorneys in the
community.” (Amended Complaint paragraphs 9, 11 and 14). These are claims of negligence,
not breach of contract.
In paragraph 13 of the Amended Complaint, Plaintiff states that Defendant
“breached the contractual duty of representing Plaintiff,” followed by a litany of things the
Defendant did that were improper. Those alleged failings all sound in negligence. Plaintiff does
not cite to the Agreement in support of any specific breach of duty therein that was not
performed under the contract. Plaintiff admits Defendant was paid and represented him at trial;
he just disagrees with the actions taken by counsel and is unhappy with the result. Those
allegations do not sufficiently state grounds for a breach of contract claim and Defendant’s
Preliminary Objection will be granted and Plaintiffs Preliminary Objection will be dismissed.
Finally, we decline to rule at this time on the Defendant’s claim that relief is also
barred due to a denial of the Plaintiffs PCRA in the underlying criminal cases. While the trial
court did deny die Plaintiffs PCRA, the matter is on appeal and is not yet final. Defendant
alleges that without a successful PCRA for ineffectiveness of legal counsel, there can be no
claim for legal malpractice against one’s criminal attorney. Plaintiff alleges that rule does not
apply in a breach of contract action. We disagree with Plaintiffs assertion as there is no
difference under Bailey, supra, whether the claims are made for breach of contract or negligence.
We also note that Plaintiff has not adequately pled a breach of contract claim anyway. As such,
the failure to assert a successful PCRA for ineffectiveness of counsel would be grounds by itself
to dismiss Plaintiff s claims under Bailev. supra. However, since the PCRA matter is not yet a
final action, we will not render a decision on that issue at this time.
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B. Defendant’s Motion to Strike Plaintiffs Certificate of Merit -
In a legal malpractice case, expert testimony is necessary to establish the standard
of care. Rizzo v. Haines. 520 Pa. 484,555 A.2d 58,66 (1989). Where the issue is beyond that of the
average person, expert testimony is essential to help the trier of fact understand the issue. Id. It is
the substance of the complaint that defines whether the claim sounds in ordinary negligence or
professional negligence. Merlini ex rel. Merlini v. Gallitzin Water Authority. 602 Pa. 346,980 A.2d
502,507 (2009). However, even if ordinary negligence is alleged, expert testimony will be required
if the standard of care is unknown to a lay person or is not within a layperson’s common
knowledge. Yee v. Roberts. 2005 Pa. Super. 240,878 A.2d 906,911-13 (2005).
The Pennsylvania Rules of Civil Procedure clearly lay out the rules regarding the
filing of a certificate of merit in a professional malpractice case. Pa. R.C.P. 1042.3. In addition,
pro se parties have a heightened requirement regarding the filing of a certificate of merit. Pa.
R.C.P. 1042.3. If a certificate of merit is not signed by an attorney, the pro se party signing the
certificate must attach to it a written statement from a licensed professional attesting to the
likelihood of malpractice. Pa. R.C.P. 1042.3(e). The written statement must indicate that a
reasonable probability exists that the care, skill, or knowledge exercised or exhibited by a
defendant fell outside acceptable professional standards and that such conduct was a cause in
bringing about the harm. Pa. R.C.P. 1042.3(e); Pa. R.C.P. 1042.3(a)(l)-(2).
Plaintiff argues that since the Amended Complaint now alleges a breach of
contract action, no certificate of merit is needed. However, as discussed above, we believe that
this case sounds in tort based on the averments in the Amended Complaint. Additionally, a
review of those averments clearly show that what Plaintiff is alleging is outside the scope of
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