Carafa, F. v. Tinari, E. ( 2020 )

J-S12032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRANCIS CARAFA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EUGENE P. TINARI, ESQUIRE AND : No. 2596 EDA 2019
LAW OFFICES OF EUGENE P. TINARI :
Appeal from the Order Entered July 16, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): September Term, 2018 No. 00120
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED APRIL 20, 2020
This matter is an appeal filed by plaintiff Francis Carafa (Plaintiff) from
an order of the Court of Common Pleas of Philadelphia County (trial court)
sustaining preliminary objections in the nature of a demurrer filed by the
defendants, Eugene P. Tinari, Esquire (Tinari) and his law firm (collectively,
Defendants), and dismissing Plaintiff’s legal malpractice action with prejudice.
For the reasons set forth below, we affirm.
The action arises out of Tinari’s representation of Plaintiff in 2016 at the
equitable distribution hearings in Plaintiff’s divorce from his wife (the Divorce
Action). Complaint ¶¶5, 12, 15-17. Plaintiff and his wife were married in
1974 and separated in 2009. Divorce Action Equitable Distribution Order at
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* Retired Senior Judge assigned to the Superior Court.
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2. Tinari was the 11th of at least 12 different attorneys that Plaintiff retained
to represent him in the Divorce Action, which lasted from 2009 to 2017, and
represented Plaintiff for less than three months. Divorce Action Docket Entries
at 1, 4-5, 8, 10, 13, 17, 19, 21, 23-24, 26, 31; Complaint ¶¶17, 71; Divorce
Action Equitable Distribution Order at 1.
Plaintiff commenced this action by praecipe for a writ of summons on
September 4, 2018 and filed his complaint on December 31, 2018. Plaintiff
specifically identified in his complaint the Divorce Action as the matter in which
Tinari represented him. Complaint ¶5. Plaintiff averred that Tinari negligently
failed at the equitable distribution hearings in the Divorce Action to call
witnesses and present evidence on the value of real property and vehicles,
that he failed to present evidence concerning various bank accounts and IRAs,
that he failed to show that Plaintiff’s police pensions and benefits were
disability-related, and that he failed to introduce evidence that Plaintiff was
unable to work. Id. ¶¶25-31, 41, 44, 48-65, 76-99, 111-28, 141-56, 158-
78, 183-87, 189-98. Plaintiff averred that those acts and omissions resulted
in unfavorable valuations of the marital real property and vehicles, inaccurate
determinations of marital financial assets, inclusion of Plaintiff’s police
pensions and benefits as marital property, and overvaluation of Plaintiff’s
income in the equitable distribution order in the Divorce Action. Id. ¶¶65, 76,
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84, 86, 88, 90, 115, 117, 158, 165, 177, 187, 193, 195, 205-06.1 Plaintiff
averred in his complaint that he fired Tinari as his counsel at the end of the
equitable distribution hearings and undertook to represent himself. Id. ¶71.
Defendants filed preliminary objections to the complaint on April 2,
2019. Defendants’ preliminary objections included a demurrer asserting that
Plaintiff could not prove his claims of legal malpractice given the record in the
equitable distribution proceedings in the Divorce Action. Defendants’
Preliminary Objections ¶¶1-53. In support of that demurrer, Defendants
attached to their preliminary objections copies of the docket in the Divorce
Action, the equitable distribution order on which Plaintiff based his legal
malpractice claim, the memorandum opinion of this Court affirming the
equitable distribution order, and transcripts and exhibits from the equitable
distribution hearings. Id. Exs. B-H.
Plaintiff, in response, filed preliminary objections to Defendants’
preliminary objections asserting that Defendants’ submission of documents
from the divorce action was improper. Plaintiff did not dispute the authenticity
of any of the documents submitted by Defendants as exhibits to their
preliminary objections, but contended that documents from the underlying
action and proceedings on which the malpractice claim was based could not
be considered on preliminary objections and that only the averments in
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1Paragraphs 205 and 206 of Plaintiff’s complaint are numbered 105 and 106,
but follow paragraph 204. Complaint at 20-22.
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Plaintiff’s complaint could be considered. Plaintiff’s Preliminary Objections to
Defendants’ Preliminary Objections at 3-6.
In an order entered July 16, 2019, the trial court sustained Defendant’s
preliminary objections and dismissed Plaintiff’s complaint with prejudice for
failure to state a claim upon which relief may be granted. Trial Court Order,
7/16/19. Plaintiff timely appealed on August 13, 2019. In his Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal, Plaintiff
asserted that the trial court erred in dismissing the action because the
complaint contained sufficient averments to set forth a cause of action for
legal malpractice and that documents from the equitable distribution
proceedings in the Divorce Action could not be considered on preliminary
objections. Plaintiff’s Statement of Matters Complained of on Appeal ¶¶2-4.
Plaintiff did not assert in his 1925(b) statement that the documents from
equitable distribution proceedings submitted by Defendants were not
authentic, that he could state a cause of action for legal malpractice if those
documents are considered, or that the trial court erred in not granting him
leave to amend the complaint.
Plaintiff states as the sole issue in this appeal:
Whether the court below erred in granting the Appellees’
Preliminary Objections and dismissing the Appellants’ [sic]
Complaint with prejudice?
Appellant’s Brief at 7. The only error that Plaintiff argues in his brief is that
the trial court failed to accept the averments of the complaint as true and
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sufficient without regard to the record in the underlying Divorce Action out of
which his legal malpractice claims arose.
On an appeal from an order sustaining preliminary objections in the
nature of a demurrer, our standard of review is de novo and our scope of
review is plenary. Hospital & Healthsystem Association of Pennsylvania
v. Department of Public Welfare, 888 A.2d 601, 607 n.12 (Pa. 2005);
Frank v. TeWinkle, 45 A.3d 434, 438 (Pa. Super. 2012). This Court may
affirm a trial court’s decision sustaining a demurrer only where it is clear that
the plaintiff is unable to prove facts legally sufficient to establish a right to
relief. Mazur v. Trinity Area School District, 961 A.2d 96, 101 (Pa. 2008);
Frank, 45 A.3d at 438. In making that determination, this Court must accept
as true all well-pleaded material averments of fact in the complaint and every
inference that is fairly deducible from those facts. Hudson v. Pennsylvania
Board of Probation and Parole, 204 A.3d 392, 395 (Pa. 2019); Frank, 45
A.3d at 438. The Court, however, is not required to accept as true conclusions
of law, unwarranted inferences, or argumentative allegations. Hudson, 204
A.3d at 395; Conrad v. City of Pittsburgh, 218 A.2d 906, 907 n.3 (Pa.
1966); In re Estate of Luongo, 823 A.2d 942, 966-68 (Pa. Super. 2003).
Contrary to Plaintiff’s contentions, these principles do not require the
trial court and this Court to consider the averments of the plaintiff’s complaint
in isolation where plaintiff’s claim is based on a prior litigation or disregard the
record in the underlying case. Where a complaint avers a cause of action
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arising out of a prior case and references that underlying case, the record in
the underlying case may properly be considered in determining whether the
plaintiff can prove the cause of action that he asserts, even though the plaintiff
has not attached such documents to his complaint. Perelman v. Perelman,
125 A.3d 1259, 1266 n.3 (2015); Morley v. Farnese, 178 A.3d 910, 913 n.1
(Pa. Cmwlth. 2018). Moreover, where a claim asserted by the plaintiff is based
on written documents, the defendant may properly submit those documents
with its preliminary objections and the court may consider those documents
in ruling on a demurrer. Conrad, 218 A.2d at 907-08 n.3; Regal Industrial
Corp. v. Crum & Forster, Inc., 890 A.2d 395, 398-99 (Pa. Super. 2005);
Satchell v. Insurance Placement Facility of Pennsylvania, 361 A.2d 375,
377-78 (Pa. Super. 1976). If a claim is based on a document, it is the
document, not averments in the plaintiff’s complaint characterizing it, that
determine whether the plaintiff has stated a cause of action, and averments
that conflict with the document need not be accepted as true. Jenkins v.
County of Schuylkill, 658 A.2d 380, 383 (Pa. Super. 1995); Davis v. Davis,
619 A.2d 743, 746-47 (Pa. Super. 1993); Framlau Corp. v. Delaware
County, 299 A.2d 335, 338 (Pa. Super. 1972).
Here, Plaintiff’s complaint was based on the equitable distribution
proceedings in the Divorce Action and the resulting equitable distribution
order. It was therefore proper for Defendants to attach the equitable
distribution order and other documents from the record in the Divorce Action
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and those documents may be considered in determining whether Plaintiff
stated a cause of action upon which relief may be granted. Perelman, 125
A.3d at 1266 n.3; Regal Industrial Corp., 890 A.2d at 398-99.
To prove a cause of action for legal malpractice, the plaintiff must prove
1) employment of the attorney or another basis on which the attorney owed
him a duty; 2) the failure by the attorney to exercise ordinary skill and
knowledge; and 3) that this negligence was the proximate cause of damage
to the plaintiff. Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182, 1184
(Pa. Super. 2000). The record from the equitable distribution proceedings in
the Divorce Action submitted by Defendants with their preliminary objections
precludes Plaintiff from proving two of these elements, negligence and
damage caused by the alleged negligence.
The equitable distribution order divided Plaintiff’s and his wife’s marital
property equally. Divorce Action Equitable Distribution Order at 15. Plaintiff’s
claim that Tinari did not present evidence concerning the marital real estate,
vehicles, and financial assets is contradicted by the record. The equitable
distribution order shows that Tinari did in fact introduce appraisals and call
witnesses who testified to the value of the properties and vehicles and that
this evidence was considered by the court in its valuations. Id. at 3-4, 9-10.
The equitable distribution order also shows that evidence was introduced
concerning over 30 different bank accounts and IRAs owned by Plaintiff and
his wife. Id. at 6-8, 11-12.
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Plaintiff’s claim that Tinari was negligent in failing to persuade the court
his disability pensions and benefits were not marital property is legally invalid.
The Divorce Code does not exclude disability payments by Pennsylvania
employers from marital property. Drake v. Drake, 725 A.2d 717, 723-26
(Pa. 1999). Such disability benefits are marital property if the right to
payment accrued during the marriage. Id. at 723-27; Yuhas v. Yuhas, 79
A.3d 700, 705-06 (Pa. Super. 2013) (en banc) (when right to benefit accrued
determines whether disability payment is marital property, post-separation
disability payments are non-marital if right to payment requires post-
separation recertification of continued disability). The record in the equitable
distribution hearings shows that Plaintiff’s disability pensions and benefits
permanently accrued in 1996, during the marriage, and that Plaintiff is entitled
to receive payments regardless of whether he is disabled. Defendants’
Preliminary Objections Ex. E Disability Retirement Agreement at 1, 2 ¶2.
Failure of an attorney to litigate a legally meritless position as a matter of law
cannot support a legal malpractice claim. McCartney v. Dunn & Conner,
Inc., 563 A.2d 525, 528-30 (Pa. Super. 1989).
With respect to Plaintiff’s claim that Tinari was negligent in failing to
introduce evidence that Plaintiff was unable to work, Plaintiff testified in the
equitable distribution proceedings that he was employed and the court found
that this actual employment constituted his highest earnings capacity.
Divorce Action Equitable Distribution Order at 1-2; N.T. Divorce Action
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Equitable Distribution Hearings, 9/20/16, at 202. No introduction of additional
evidence concerning Plaintiff’s ability to work could therefore have affected
the equitable distribution order.
Because Plaintiff’s legal malpractice claims were based the equitable
distribution proceedings in his Divorce Action and the record in those
proceedings demonstrated that Plaintiff could not prove the malpractice claims
that he asserted, the trial court did not err in sustaining Defendants’ demurrer
and dismissing Plaintiff’s complaint. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/20
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