Bassaro, L. v. De Levie, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LORI BASSARO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALVIN F. DE LEVIE : No. 1705 MDA 2019
Appeal from the Order Entered October 1, 2019
In the Court of Common Pleas of Centre County Civil Division at No(s):
2018-1901
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 2, 2020
Lori Bassaro (Bassaro) appeals the order of the Court of Common Pleas
of Centre County (trial court) dismissing with prejudice her second amended
complaint on the ground that she had failed to allege sufficient facts for a
claim of legal malpractice against her former attorney, Alvin F. de Levie (de
Levie). We affirm.
I.
On May 11, 2014, Bassaro was injured on the job while using a meat
grinder (the appliance). At the time, she was an employee of Weis Markets.
Bassaro alleges that while using the appliance, it gave her a serious electrical
shock. She alleges further that this event is making her vision progressively
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* Retired Senior Judge assigned to the Superior Court.
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darker; causes her to stutter when she tries to speak; diminishes her cognitive
ability; and gives her painful spinal lesions.
Bassaro hired de Levie to represent her in obtaining workers’
compensation benefits against her employer, Weis Markets, as well as
potential litigation against third parties who might be liable for her injuries.
Over two years after the incident, de Levie informed Bassaro that the statute
of limitations period for filing a negligence action had elapsed and suggested
she review her options to proceed against him on grounds of legal malpractice.
See Second Amended Complaint, 4/26/2019, at Paragraphs 34-36 (citing
Exhibit 2).
In 2018, Bassaro filed a complaint against de Levie alleging legal
malpractice. The elements of such a claim are that the attorney represented
the plaintiff, but failed to exercise ordinary skill and knowledge, causing harm
to the plaintiff in the form of a lost cause of action. The latter element is
commonly referred to as a “case within a case.”1
De Levie filed preliminary objections contending that Bassaro failed to
plead a claim of malpractice against him with sufficient specificity because she
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1 “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 (often referred to as proving a
‘case within a case’).” Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa.
1998); see Poole v. W.C.A.B., 810 A.2d 1182, 1184 (Pa. 2002) (same).
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did not state the cause of her injury or identify a responsible third party. In
response, Bassaro amended her complaint to name Hobart as the tortfeasor
due to its faulty design, manufacture, installation and maintenance of the
subject appliance.
De Levie then reiterated his preliminary objections that Bassaro’s
malpractice complaint lacked sufficient specificity in part because she had not
presented any theory of causation linking an act by a third party with her
injuries. The trial court sustained the preliminary objections to the first
amended complaint for lack of specificity and dismissed the pleading without
prejudice. See Trial Court Order, 3/9/2019, at 1-3.
Bassaro then filed a second amended complaint adding the following
allegations against Hobart and other third parties:
***
8. Upon information and belief, Hobart designed,
manufactured, and sold the aforementioned grinder.
9. Upon information and belief, said Hobart meat grinder was
in a defective condition by reason of its design and manufacture,
and by reason of the absence of proper warnings, notice and
instructions to users such as [Bassaro].
10. Upon information and belief, Hobart had a duty to perform
routine maintenance on the grinder, but such was not routinely
performed.
11. Prior to [Bassaro] being shocked by said defective meat
grinder. [Bassaro] had complained several times to Weis Markets’
supervisors/managers, who on information and belief reported the
same to Hobart, that [Bassaro] was receiving electric shocks from
the Hobart grinder.
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12. The Hobart machine utilized a 220V power outlet that was,
upon information and belief, deficient in its design and
manufacture rendering it unreasonably dangerous for its intended
user.
13. Upon information and belief, the 220V power outlet was
installed by Hobart employees or a similar representative from
Hobart.
14. Throughout the course of the day prior to her injury, the
Hobart machine exhibited electrical and systemic malfunctions
that could have been caused by a defect in the machine, a defect
in the electric supply, or a combination of both.
15. Upon information and belief, Hobart took no steps to
prevent further electric shocks and did not perform any
maintenance on the grinder to remedy [Bassaro’s] complaints,
despite Hobart’s legal duty in this regard.
16. Similarly, Hobart did not perform any required maintenance
on the machine following Plaintiff’s complaints.
17. It is believed and therefore averred that Hobart’s grinder
was defective because it continually gave [Bassaro] electric
shocks shortly before electrocuting her.
18. It is believed and therefore averred neither the Hobart
grinder nor its designated power source was designed to produce
a shock to its intended user.
19. In addition to the grinder itself remaining in unsafe condition
and prior to the incident’s occurrence, $1.3 million worth
renovation or construction work was performed at Weis Markets
in 2011.
20. Upon information and belief, the meat cooler where Plaintiff
was injured was either significantly renovated or constructed
from-new and attached to Weis as an addition to the store. A true
and correct copy of the Construction Permit issued by the
Philipsburg Borough is attached hereto and marked as Exhibit 3.
21. The permit specifically approving such construction listed,
inter alia, electrical work was to be done at Weis Markets.
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22. The aforementioned construction, upon information and
belief, was performed in the area where [Bassaro’s] injury
occurred.
23. Shortly after the incident occurred, water was observed
coming from the same power outlet [Bassaro] was using to
operate the grinder.
24. Upon information and belief, water is not supposed to come
from a power outlet.
25. Upon information and belief, Hobart had a duty to ensure
water did not emanate from the power outlets installed and/or
repaired that were to be used in conjunction with said meat
grinder.
26. [Bassaro] was rendered unconscious as a result of the above
described injuries caused by the defective Hobart [appliance.]
Second Amended Complaint, at Paragraphs 8-26.
De Levie again filed preliminary objections, arguing that Bassaro’s
pleadings did not sufficiently set forth a cause of action against a third-party
tortfeasor. The trial court sustained those preliminary objections, relying on
Pa.R.C.P. No. 1028(a)(3) (lack of specificity in pleading). The trial court again
found that Bassaro had failed to clearly state the elements of the underlying
claim, “particularly because she fails to identify any third-party liability.” Trial
Court Opinion and Order, 9/30/2019, at 2. The second amended complaint
was dismissed with prejudice. Id. at 3. Bassaro timely appealed and both
she and the trial court complied with Pa.R.A.P. 1925.2
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2“When sustaining the trial court’s ruling will result in the denial of a claim or
a dismissal of suit, preliminary objections will be sustained only where the
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II.
On appeal, Bassaro primarily contends that the trial court erred in
finding that she did not plead sufficiently specific facts to make out an
underlying tort claim against Hobart.3 See Appellant’s Brief, at 5. She
contends that the trial court, in its opinion, focused exclusively on whether
she pleaded a claim of products liability when, in fact, her stronger potential
claims against Hobart had sounded in negligence,4 especially the claim that
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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.” Rambo v. Greene, 906 A.2d 1232, 1235 (Pa.
Super. 2006).
3 Bassaro now seems to abandon her argument to the trial court that she had
pleaded a viable products liability claim against Hobart. Had she raised that
issue on appeal, it would lack merit because “[t]o successfully litigate a
products liability suit, section 402A(1) requires a party to assert a product or
component was in a defective condition as sold.” Micciche v. E. Elevator
Co., 645 A.2d 278, 280 (Pa. Super. 1994); see also Tincher v. Omega Flex,
Inc., 104 A.3d 328, 399-402 (Pa. 2014) (summarizing the elements and
standard of proof for a products liability claim in general accordance with
Section 402A of Restatement (Second) of Torts)). Bassaro never made that
allegation in any of her complaints.
4 “Generally, to establish a cause of action negligence, the plaintiff must
demonstrate that the defendant owed a duty of care to the plaintiff, the
defendant breached that duty, the breach resulted in injury to the plaintiff and
the plaintiff suffered an actual loss or damage.” Brezenski v. World Truck
Transfer Inc., 755 A.2d 36, 40 (Pa. Super. 2000). Dismissal is proper if the
plaintiff does not aver sufficient facts to establish all the elements of a claim.
Lerner v. Lerner, 954 A.2d 1229, 1234–35 (Pa. Super. 2008).
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Hobart failed to maintain the appliance and its power source. See id. at 13-
14.5
A.
Pennsylvania is a fact-pleading jurisdiction. See generally Pa.R.C.P.
No. 1019; see also Serin v. Kelshaw, 611 A.2d 1232, 1235 (Pa. Super.
1992). A complaint must set forth the material facts upon which a claim is
based in “concise and summary form.” Pa.R.C.P. No. 1019(a). A complaint
may be dismissed at the preliminary objection stage if the pleading is
insufficiently specific. See Pa.R.C.P. No. 1028(a)(3).
“Rule 1020(a) permits a plaintiff to state more than one cause of action
against a defendant but each cause of action and any special damages related
thereto must be stated in a separate count containing a demand for relief.”
Bouchon v. Citizen Care, Inc., 176 A.3d 244, 258 (Pa. Super. 2017)
(quoting Pa.R.C.P. No. 1020(a)). “[W]here the factual background underlying
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5 In the alternative, Bassaro argues that if her pleadings are found to be too
vague to satisfy the applicable pleading requirements, the lack of detail should
be attributed to de Levie’s inadequate investigative efforts. This argument
has already been rejected by our Supreme Court, which places the initial
burden on the plaintiff to establish the merit of an underlying case: “[i]t 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 engaged to prosecute or defend the underlying action was
negligent[.]” Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998). In a
malpractice suit, a plaintiff cannot rely on a lack of facts to establish by
inference that she would have prevailed in an underlying case if not for her
counsel’s conduct; the facts must be asserted affirmatively. See id.-7-
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each defendant’s liability is different,” a plaintiff cannot state a cause of action
against each defendant in a single count. Bouchon, 176 A.3d at 258 (citing
Gen. State Auth. v. Lawrie and Green, 356 A.2d 851, 854 (Pa. Cmwlth.
1976)). “Assertions of legal rights and obligations in a complaint may be
construed as conclusions of law, which have no place in a pleading.”
DelConte v. Stefonick, 408 A.2d 1151, 1153 (Pa. 1979).
In determining whether a complaint is sufficiently specific under
Pa.R.C.P. 1023(a)(3), the court will consider “whether [it] informs the
defendant with accuracy and completeness of the specific basis on which
recovery is sought so that he may know without question upon what grounds
to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super.
2006); see also Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d
579, 588 (Pa. Super. 2002).
To plead a legal malpractice action, a plaintiff must allege at least one
meritorious cause of action she would have had against a third party but for
the attorney’s malpractice. See Kituskie, 714 A.2d at 1030. To avoid liability
at trial, the attorney would have to defend against such claims in much the
same way as the alleged third-party tortfeasor — by attempting to show that
the alleged tortfeasor was not liable. The pleading requirements that would
have applied in a pure personal injury action directly against the third party
must, therefore, apply equally as to the “case within a case” element of a
malpractice claim against an attorney.
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B.
Bassaro’s central argument is that the trial court dismissed her suit by
ignoring well-pleaded facts establishing her underlying personal injury claims.
She asserts that she laid out all the elements of negligence against Hobart
based on its failure to maintain the appliance and the appliance’s power
source. See Appellant’s Brief, at 13-15; Second Amended Complaint, at
Paragraphs 9-17. While it is true that the trial court in this case evaluated the
sufficiency of Bassaro’s “case within a case” only in the context of products
liability rather than negligence, this was symptomatic of the inherent difficulty
in identifying Bassaro’s underlying cause(s) of action.
The operative complaint did not set forth the facts and elements of each
potential claim in the underlying personal injury claim against Hobart, such
that de Levie could “know without question upon what grounds to make his
defense.” Bassaro did not organize the pleadings supporting her underlying
claims against Hobart into separate counts, making it unclear whether those
claims sounded in negligence, products liability or both. Nor did her complaint
outline the particular facts that would have allowed her to prevail as to each
discreet cause of action.
For example, Paragraph 9 provides that the appliance had a
manufacturing and design defect, suggesting a theory of products liability as
to Hobart. However, the very next paragraph provides that Hobart had a duty
to “perform routine maintenance” on the appliance, suggesting a theory of
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negligence. Paragraph 14 attributes to Hobart a design and manufacturing
defect with respect to the electrical outlet from which the appliance drew
power.
Apart from any alleged conduct by Hobart, Paragraphs 19 and 20 refer
to the negligence of an unnamed third party who caused the appliance’s
malfunction by renovating Bassaro’s work area years after installation of the
appliance.6 The only mention of causation (linking tortious conduct with
physical injury) comes in Paragraph 26, in which Bassaro asserted that her
accident resulted from a “defect” in the appliance. This is a products liability
concept, and it is not clear how the preceding allegations of negligence relate
to that conclusion.
As stated previously, the test for a sufficiently specific complaint is
whether it “informs the defendant with accuracy and completeness of the
specific basis on which recovery is sought so that he may know without
question upon what grounds to make his defense.” Rambo, 906 A.2d at
1236. To that end, a plaintiff must state clearly in a separate count each
individual cause of action asserted against each individual defendant,
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6 It is well established that “[i]t is never enough for the plaintiff to prove that
he was injured by the negligence of some person unidentified.” Fessenden
v. Robert Packer Hosp., 97 A.3d 1225, 1232 (Pa. Super. 2014) (quoting
Restatement (Second) of Torts § 328D, cmt. f (1965)). Bassaro did not
sufficiently plead a claim against the unnamed contractor because she did not
identify that third party, assert the basis of a legal duty to her, or present a
theory of causation between the purported breach of the duty and damages.
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including the facts pertaining to every element of that count. See Pa.R.C.P.
Nos. 1019(a), 1020(a), 1028(a)(3). These rules apply in legal malpractice
cases like this one, where the plaintiff must plead and prove a “case within a
case.”
Here, de Levie was entitled to the same degree of notice of the
underlying tort claims, as the third-party tortfeasor would have had in a pure
personal injury suit (Hobart). Yet the sections of the complaint purporting to
state the “case within a case” did not state each cause of action in a separate
count, enumerate all the elements of each cause of action in each individual
count, or separate the allegations with respect to each individual defendant.
Because all of the facts, legal theories and parties of the “case within a
case” are lumped together without the appropriate separation and specificity,
it is impossible to discern how the entire body of those allegations corresponds
to a discrete claim against an individual third party. See Commonwealth v.
Parisi, 873 A.2d 3, 9 (Pa. Cmwlth. 2005) (explaining that each claim or cause
of action asserted in a complaint “must be presented in a self-sufficient
separate count, which includes averments of facts pertaining to the particular
claim and relief sought.”); see also Estate of Swift v. Northeaster Hosp.
of Philadelphia, 690 A.2d 719, 723 (Pa. Super. 1997) (“If a plaintiff fails to
properly plead a separate cause of action, the cause he did not plead is
waived.”).
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Accordingly, had Bassaro relied on these same averments in a personal
injury matter, Hobart could not have known for sure upon what grounds to
defend, subjecting the complaint to dismissal. As directed against de Levie,
the allegations supporting Bassaro’s underlying claims are likewise
insufficient. Thus, the trial court did not err in sustaining de Levie’s
preliminary objection and dismissing Bassaro’s second amended complaint.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/02/2020
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7 A preliminary objection, based on lack of specificity in the pleadings, falls
under the purview of Pa.R.C.P. No. 1028(a)(3), and this was the sole basis for
the trial court’s dismissal in the order on review. See Trial Court Opinion,
9/30/2019, at 1-2. For the reasons discussed above, dismissal would have
also been proper under Pa.R.C.P. No. 1028(a)(2) due to “failure of a pleading
to conform to law or rule of court,” or “legal insufficiency of a pleading
(demurrer)” under Pa.R.C.P. No. 1028(a)(4). “[T]his court may affirm the
decision of the trial court on any correct basis.” Rambo, 906 A.2d, at 1235
n.4.
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