Greenawalt, C. v. Stanley Law Offices

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHARLES GREENAWALT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STANLEY LAW OFFICES, LLP : No. 1018 WDA 2019
Appeal from the Order Entered June 10, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD No. 14-008808,
GD No. 14-008808
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED JUNE 22, 2020
Charles Greenawalt appeals from the June 10, 2019 order granting
summary judgment in favor of Stanley Law Offices, LLP (the “Law Firm”) in
this legal malpractice action. After review, we affirm.
Mr. Greenawalt commenced this action against the Law Firm on May 27,
2014, alleging that it provided negligent legal advice and representation when
he sought guidance following a slip-and-fall accident that occurred while he
was working as a union laborer in Rochester, New York, for Bristol
Environmental, Inc. (“Bristol”). On December 14, 2009, while he was living in
corporate housing provided by his employer, he slipped in the parking lot of
the apartment complex as he was retrieving his car in order to drive himself
and several fellow employees to work. Although Mr. Greenawalt proceeded to
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* Retired Senior Judge assigned to the Superior Court.
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work that day, he was unable to perform his duties. His supervisor assigned
him to light duty work, but he was eventually laid off by Bristol.
On January 28, 2010, Mr. Greenawalt contacted the Law Firm, located in
Syracuse, New York, to “discuss his potential legal claims.” Complaint, 8/6/14,
at ¶10. According to the complaint, the Law Firm agreed to represent him in
a personal injury lawsuit against the owner of the apartment complex, and Mr.
Greenawalt signed a contingent-fee retainer agreement on February 9, 2010.
In the meantime, the Law Firm contacted Attorney Justin Lewis on February 4,
2010, and represented to him that Mr. Greenawalt had a potential worker’s
compensation claim, “but that New York did not have jurisdiction over the
matter.” Id. at ¶13. Attorney Lewis agreed to file a Pennsylvania worker’s
compensation claim on Mr. Greenawalt’s behalf. Id. at ¶14.
On July 28, 2011, the Law Firm settled Mr. Greenawalt’s personal injury
action against the owner of the apartment complex for slightly over $9,000,
satisfied the medical lien, and presented Mr. Greenawalt with a release that he
executed. On December 29, 2011, the Pennsylvania worker’s compensation
judge ruled that Pennsylvania lacked jurisdiction over Mr. Greenawalt’s
worker’s compensation claim. In response to this decision, Attorney Lewis filed
a timely appeal on his client’s behalf, and contacted the Law Firm about filing
a worker’s compensation claim in New York. The Law Firm agreed to do so,
and filed and provided a copy of the January 12, 2012 worker’s compensation
claim to Attorney Lewis. Thereafter, despite Attorney Lewis’s numerous
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inquiries regarding the status of the New York worker’s compensation claim,
the Law Firm did not respond. Id. at ¶22.
On September 23, 2013, the Pennsylvania worker’s compensation appeal
board affirmed the judge’s finding of no jurisdiction in Pennsylvania. That
decision was affirmed by the Commonwealth Court of Pennsylvania on May 12,
2014. While those appeals were pending, Attorney Lewis requested numerous
times that the Law Firm provide updates and additional documents pertaining
to Mr. Greenawalt’s New York worker’s compensation claim, but the Law Firm
did not respond to these inquiries.
On May 27, 2014, Attorney Lewis filed a praecipe for writ of summons
on behalf of Mr. Greenawalt against the Law Firm in Allegheny County,
Pennsylvania. The Law Firm advised Attorney Lewis on June 9, 2014, that the
statute of limitations may have expired on the New York worker’s
compensation claim prior to its filing. Two days later, the Law Firm advised
Mr. Greenawalt directly that it would withdraw from its representation of Mr.
Greenawalt in the New York worker’s compensation case if the legal
malpractice action was not terminated.
Mr. Greenawalt filed a complaint against the Law Firm on August 5,
2014, and thereafter, the Law Firm withdrew from representation. Mr.
Greenawalt’s complaint alleged professional negligence in both the Law Firm’s
handling of his personal injury settlement and the New York worker’s
compensation claim. The Law Firm filed preliminary objections to the
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complaint challenging venue and raising forum non conveniens. In addition,
the Law Firm asserted multiple preliminary objections in the nature of a
demurrer alleging that the malpractice complaint failed to state a claim.
Specifically, the Law Firm pled that: (1) the negligence action for its handling
of Mr. Greenawalt’s personal injury settlement was legally barred; (2) the Law
Firm owed no duty to Mr. Greenawalt with regard to the worker’s
compensation claim until after it agreed to file a claim in New York, and any
negligence for failure to file that claim within the statute of limitations occurred
prior to that agreement, and could not be the cause of loss; and (3) since the
case was still pending, Mr. Greenawalt had not sustained any loss. After
considerable discovery limited to the issues of venue and forum non
conveniens, the trial court overruled all preliminary objections, with the
exception of the Law Firm’s demurrer to Mr. Greenawalt’s claim that the Law
Firm was negligent in its handling of his personal injury settlement.
The Law Firm subsequently moved for summary judgment regarding its
alleged legal malpractice in the handling of the New York worker’s
compensation claim. By order dated June 10, 2019, the trial court granted
summary judgment in favor of the Law Firm, and dismissed the case. The trial
court concluded that Mr. Greenawalt failed to establish the necessary elements
of a legal malpractice claim. Since the 2010 retainer agreement excluded any
worker’s compensation claims from the scope of representation, the trial court
found no attorney-client relationship existed. Hence, it held that the Law Firm
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owed no duty to Mr. Greenawalt with respect to those claims until January
2012, which was after the applicable two-year statute of limitations had run.
It found further that the Law Firm acted with reasonable care while
representing Mr. Greenawalt on the New York worker’s compensation claim.
Mr. Greenawalt timely appealed to this Court and complied with Pa.R.A.P.
1925(b). He presents two issues for our review:
A. Did the trial court commit an error of law in sustaining
preliminary objections regarding [the Law Firm’s] handling of the
personal injury claim?
B. Did the trial court commit an error of law in granting [the Law
Firm’s] motion for summary judgment?
Mr. Greenawalt’s brief at 5-6.
Mr. Greenawalt first faults the trial court for “parsing” his one negligence
count into two distinct claims, alleging that this “is an error of law.” Appellant’s
brief at 15. He then contends that the court erred in sustaining the Law Firm’s
demurrer to his claim that it was negligent in its handling of his personal injury
settlement.
In reviewing an order sustaining a demurrer, the following principles
inform our analysis:
A demurrer is an assertion that a complaint does not set
forth a cause of action or a claim on which relief can be granted.
A demurrer by a defendant admits all relevant facts sufficiently
pleaded in the complaint and all inferences fairly deducible
therefrom, but not conclusions of law or unjustified inferences. In
ruling on a demurrer, the court may consider only such matters
as arise out of the complaint itself; it cannot supply a fact missing
in the complaint.
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Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa.Super. 2008) (citation and
emphasis omitted). “The question presented by a demurrer is whether, on
the facts averred, the law says with certainty that no recovery is possible.”
Donaldson v. Davidson Bros., 144 A.3d 93, 100 (Pa.Super. 2016).
Our review of a trial court’s order sustaining a demurrer is plenary. We
examine the averments in the complaint and the documents attached thereto
to evaluate the adequacy of the facts averred by a plaintiff and to assess the
legal sufficiency of the complaint. See Floors, Inc. v. Altig, 963 A.2d 912,
915 (Pa.Super. 2009). We will affirm the trial court’s order sustaining a
demurrer only if, “assuming the facts in the complaint to be true, the plaintiff
has failed to assert a legally cognizable cause of action. We will reverse a trial
court’s decision to sustain preliminary objections only if the trial court has
committed an error of law or an abuse of discretion.” Am. Express Bank,
FSB v. Martin, 200 A.3d 87, 93 (Pa.Super. 2018).
The trial court sustained the demurrer to Mr. Greenawalt’s claim that the
Law Firm was negligent in its handling of the personal injury settlement based
upon our Supreme Court’s decision in Muhammad v. Strassburger,
McKenna, Messer, Shilobod & Gutnick, 587 A.2d 1346 (Pa. 1991). In
Muhammad, our High Court stated,
we will not permit a suit to be filed by a dissatisfied plaintiff against
his attorney following a settlement to which that plaintiff agreed,
unless that plaintiff can show he was fraudulently induced to settle
the original action. An action should not lie against an attorney
for malpractice based on negligence and/or contract principles
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when that client has agreed to a settlement. Rather, only cases
of fraud should be actionable.
Id. at 1348. In the case of fraudulent inducement, our High Court indicated
that the client must allege fraud with specificity, which includes describing the
acts claimed to be fraudulent. Id.
Mr. Greenawalt contends that his complaint contains specific allegations
that the Law Firm lied to him about its pursuit of the personal injury case and
then concealed the settlement from Attorney Lewis in order to prevent Mr.
Greenawalt from making an informed decision.1 He maintains that these
allegations sound in fraud and are sufficiently specific to meet the pleading
requirements set forth in Pa.R.C.P. 1019(b). Moreover, he suggests that in
granting allocatur in McGuire v. Russo, 169 A.3d 567 (Pa. 2017), the
Supreme Court signaled its willingness to overturn Muhammad and set a
lower bar for post-settlement legal malpractice actions. Mr. Greenawalt also
contends that his allegations that the Law Firm failed to advise him of the
possible consequences of entering into the settlement satisfy the standard of
McMahon v. Shea, 688 A.2d 1179 (Pa. 1997) (plurality) (limiting
Muhammad to its facts, and permitting legal malpractice action seeking
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1 The allegation in the complaint is that the Law Firm told Attorney Lewis that
it was not pursuing the personal injury case, which was purportedly not the
truth. We note that any duty owed by the Law Firm was to its client, Mr.
Greenawalt, not to Attorney Lewis.
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redress for attorney’s alleged negligence in failing to advise as to the
controlling law applicable to a contract to proceed).
The Law Firm counters that the trial court correctly found that none of
the allegations in Plaintiff's Complaint met the requirements of Rule 1019(b),
requiring that allegations of fraud be pled with specificity.2 In addition, the
Law Firm maintains that Muhammad has not lost its vitality and continues to
constitute controlling law herein. The Law Firm contends further that
McMahon was only a plurality decision, and that it involved incorrect legal
advice given by counsel to his client about the effect of an alimony agreement
merging into the divorce decree. Since Mr. Greenawalt did not plead that he
received incorrect advice about the effect of the settlement, the Law Firm
maintains that McMahon does not apply.
Preliminarily, we find no error in the trial court’s separate treatment of
the allegations of negligence against the Law Firm for its handling of the
personal injury settlement and its negligent advice regarding the proper
jurisdiction for the worker’s compensation claim. These claims are distinct and
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2 The Law Firm directs our attention to Presbyterian Med. Ctr. v. Budd, 832
A.2d 1066, 1072 (Pa.Super. 2003), defining the elements of fraud or
intentional misrepresentation as: “(1) a representation; (2) which is material
to the transaction at hand; (3) made falsely, with knowledge of its falsity or
recklessness as to whether it is true or false; (4) with the intent of misleading
another into relying on it; (5) justifiable reliance on the misrepresentation; and
(6) the resulting injury was proximately caused by the reliance.” Id. (quoting
Gibbs v. Ernst, 647 A.2d 882, 889 (1994) (citing Restatement (Second) of
Torts §525 (1977))).
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seek different relief. Arguably, under our pleading rules, the claims should
have been pled in separate counts. See Pa.R.C.P. 1020(a) (“The plaintiff may
state in the complaint more than one cause of action cognizable in a civil action
against the same defendant. Each cause of action and any special damage
related thereto shall be stated in a separate count containing a demand for
relief.”). Moreover, Mr. Greenawalt has not provided any authority in support
of his claim that the trial court erred in this regard.
Next, we find that Muhammad is controlling as to whether Mr.
Greenawalt’s complaint states a claim against the Law Firm for its handling of
his personal injury settlement. As our High Court reasoned, to permit
negligence or breach of contract suits after a settlement has been accepted by
the client would “create chaos in our civil litigation system.” Muhammad,
supra at 548. Furthermore, it would discourage settlements and increase the
number of legal malpractice cases as “[l]awyers would be reluctant to settle a
case for fear some enterprising attorney representing a disgruntled client will
find a way to sue them for something that ‘could have been done, but was
not.’” Id.
Mr. Greenawalt styled his own pleading as one for negligence. While it
is the facts pled that control, not the label, our review of the complaint reveals
that the allegations with regard to the settlement of the personal injury case
sound in negligence. Mr. Greenawalt alleged that the Law Firm was negligent
in settling the personal injury case and resolving the lien in the following
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respects: without considering the Pennsylvania worker’s compensation claim
so Mr. Greenawalt could not make an informed decision; without talking to
Attorney Lewis; settling for less than the damages; failing to pursue any
damages other than the insurance policy; and failing to supervise non-lawyers
who worked on the personal injury case. See Complaint, 8/6/14, at ¶54. Mr.
Greenawalt complained that “Plaintiff had a significant personal injury claim
but the negligent actions and/or inactions of Defendant Law Offices were the
factual cause of Plaintiff being prevented from obtaining damages in a case
where he otherwise had a strong opportunity to prevail.” Id. at ¶57. In short,
this is the type of “Monday-morning quarterback” claim that the Muhammad
Court found was “based on speculative harm.” Muhammad, supra at 1352.
As fraud was not specifically pled, the claim of legal malpractice based on the
settlement is precluded under Muhammad.
Furthermore, to the extent McMahon carves out an exception to
Muhammad, Mr. Greenawalt has not demonstrated its applicability to the
facts herein. In that divorce proceeding, McMahon followed his counsel’s
advice and entered into a stipulation to incorporate, but not merge, an alimony
agreement into the final divorce decree. When his ex-wife remarried two
months later, McMahon filed a motion to terminate alimony. The trial court
denied the request because the agreement survived the divorce due to the lack
of merger. McMahon initiated a legal malpractice claim alleging that his divorce
counsel provided negligent advice. Relying on Muhammad, the trial court
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sustained McMahon’s counsel’s demurrer and dismissed the complaint. This
Court, sitting en banc, reversed the trial court, finding that the policy set forth
in Muhammad was not implicated where an attorney’s alleged negligence did
not involve the exercise of “judgment regarding the amount to be accepted or
paid in settlement, but rather lies in the failure to advise a client of well[-]
established principles of law and the impact of a written agreement.”
McMahon, supra at 1181.
The Supreme Court affirmed our decision, but was unable to achieve a
majority. The opinion announcing the judgment of the Court limited
Muhammad to its facts, and found it inapplicable where McMahon was merely
“seeking redress for his attorney’s negligence in failing to advise him as to the
controlling law applicable to a contract.” Id. at 1182. In his concurring opinion,
Justice Cappy agreed with the analytical distinction between a legal malpractice
claim based on a challenge to an attorney’s professional judgment regarding
an amount to be accepted in settlement of a claim as in Muhammad, and a
challenge to an attorney’s failure to correctly advise his client about well-
established principles of law in settling a case as in McMahon. Id. See also
Goodman v. Kotzen, 647 A.2d 247, 250 (Pa.Super. 1994) (finding
Muhammad controlling where the alleged negligence consists of “advising and
representing [a client] and in negotiating for him the terms of [a] settlement”).
Mr. Greenawalt agreed to the settlement of his personal injury lawsuit
and signed a release. In contrast to the situation in McMahon, there are no
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allegations that the Law Firm misstated the law or the facts regarding the effect
of the settlement. Nor are there any allegations that the Law Firm fraudulently
misrepresented facts or the law in order to induce Mr. Greenawalt to settle the
case. Rather, Mr. Greenawalt is attacking the adequacy of the financial
settlement after the fact, the very situation Muhammad was intended to
preclude. Accordingly, the trial court properly sustained the demurrer with
regard to Mr. Greenawalt’s negligence claims involving the personal injury
settlement.
We turn now to Mr. Greenawalt’s contention that the trial court erred in
entering summary judgment with regard to his claim that the Law Firm was
negligent in its handling of his worker’s compensation case. As our Supreme
Court has declared on numerous occasions
“summary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law.” Atcovitz v. Gulph Mills Tennis Club,
Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (Pa. 2002); Pa.C.P. No.
1035.2(1). When considering a motion for summary judgment,
the trial court must take all facts of record and reasonable
inferences therefrom in a light most favorable to the non-moving
party. Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d
186, 195 (Pa. 2007). In so doing, the trial court must resolve all
doubts as to the existence of a genuine issue of material fact
against the moving party, and, thus, may only grant summary
judgment “where the right to such judgment is clear and free from
all doubt.” Id.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159-1160 (Pa. 2010). A
grant of summary judgment may be reversed by an appellate court only if
there has been an error of law. The question whether there are genuine issues
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of material fact is a question of law, and therefore, our standard of review is
de novo. We may resolve that question in the context of the entire record.
Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007).
In order to prove legal malpractice, an allegedly aggrieved client must
establish three elements:
1. The employment of the attorney or other basis for 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.
Rutyna v. Schweers, 177 A.3d 927, 929 n.3 (Pa.Super 2018) (quoting Rizzo
v. Haines, 555 A.2d 58, 65 (Pa. 1989)) (quotation marks omitted).
Mr. Greenawalt maintains that, although the Law Firm was not initially
bound by the retainer agreement to pursue a worker’s compensation claim on
his behalf, it did assist him with that claim. Specifically, it advised him that
New York did not have jurisdiction over the claim, and referred Mr. Greenawalt
to Attorney Lewis in Pennsylvania. Mr. Greenawalt argues that the language
in the retainer agreement to the effect that the Law Firm was not bound to
assist in a related worker’s compensation case did not preclude such
assistance.3 Moreover, it did not specifically absolve the Law Firm of a duty to
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3 Mr. Greenawalt points out that the Law Firm did not have him sign a new
retainer agreement when it filed the New York worker’s compensation claim.
However, the certified record contains a completed the Notice of Appearance and
Retainer Form (OC-400), signed by Mr. Greenawalt, and dated January 18, 2012.
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provide reasonable advice as a matter of law should it provide such assistance.
See Appellant’s brief at 18.
Furthermore, in concluding that employment of the Law Firm to pursue
the worker’s compensation case was a prerequisite to a duty to provide
competent legal advice regarding the possibility of such an action, Mr.
Greenawalt alleges that the trial court failed to take the facts pled and the
reasonable inferences therefrom in the light most favorable to him as the non-
moving party. Moreover, Mr. Greenawalt contends that there are genuine
issues of fact as to whether the Law Firm acted with reasonable care after it
was officially retained to file the workers’ compensation claim that would
preclude summary judgment as a matter of law.4
As we reiterated in Althaus by Althaus v. Cohen, 710 A.2d 1147, 1152
(Pa.Super. 1998), whether a legal duty exists under a particular set of facts is
generally a legal question for the trial court. The trial court found the Law Firm
owed Mr. Greenawalt no duty in 2010 with regard to a worker’s compensation
case because the retainer did not bind the Law Firm to represent Mr.
Greenawalt in that matter. It provided in pertinent part:
CLAIMS NOT INCLUDED. This agreement does not bind STANLEY
LAW OFFICES to assist in any related Property Damage, Worker’s
Compensation or Disability Insurance or other such or similar
insurance or other claims if, at STANLEY LAW OFFICES option,
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4 Mr. Greenawalt complains that the Law Firm concealed the possible statute-
of-limitations problem from him and his Pennsylvania counsel. He fails to
elaborate, however, how concealment alone could have caused any loss or
injury for purposes of this legal malpractice action.
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STANLEY LAW OFFICES do assist the undersigned with any such
claim, STANLEY LAW OFFICES may charge the undersigned for any
such services performed at STANLEY LAW OFFICES then current
hourly rates and I will promptly pay STANLEY LAW OFFICES for
such services . . .
.
Contingent Fee Retainer Agreement, 2/9/10, at 1.
We note that Mr. Greenawalt provided uncontroverted testimony in his
deposition that the Law Firm referred him to Attorney Lewis after concluding
that a worker’s compensation claim would have to be pursued in Pennsylvania,
rather than in New York. According to Attorney Lewis, a similar representation
was made to him by the Law Firm as the reason for this referral. Thus, while
the Law Firm did not expressly undertake to represent Mr. Greenawalt on the
worker’s compensation claim, it did provide legal advice and procure
Pennsylvania counsel to pursue such a claim in Pennsylvania on or about
February 4, 2010, several days prior to the execution of the retainer
agreement.
Although the retainer agreement attempted to limit the Law Firm’s
representation to the personal injury lawsuit, it did not expressly rule out the
possibility that the Law Firm would assist or render advice on other claims.
Thus, to the extent the Law Firm assisted Mr. Greenawalt with the worker’s
compensation matter, it owed a duty to provide reasonably competent advice.
Genuine issues of fact remain as to whether the Law Firm’s advice was
reasonably competent. “An attorney will be found to have been negligent if he
or she has failed to use that ordinary skill, knowledge, and care which would
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normally be possessed and exercised under the circumstances by members of
the legal profession.” See Restatement (Second) of Torts, § 299A(2) (1988
edition).
The trial court found as a matter of law that the Law Firm acted with
reasonable care. In so concluding, the trial court ignored the evidence that
the Law Firm advised Mr. Greenawalt in 2010 that jurisdiction of a worker’s
compensation action lay in Pennsylvania, not in New York. For the reasons
supra, we find that the Law Firm may be subject to liability if it failed to give
competent advice in this regard. The trial court did not consider Mr.
Greenawalt’s allegations that once the claim was filed, the Law Firm relegated
it to unsupervised paralegals who, for more than two years, did nothing to
move it to resolution. In determining as a matter of law that the Law Firm
acted reasonably, the trial court looked solely to the period between the
Commonwealth Court’s affirmance of dismissal of the Pennsylvania worker’s
compensation claim on May 12, 2014, and Mr. Greenawalt’s initiation of a legal
malpractice lawsuit against the Law Firm by filing a praecipe on May 21, 2014,
a nine-day period, and concluded that the Law Firm provided reasonable and
competent representation during that time as a matter of law.
We perceive of no reason why the trial court chose to restrict its inquiry
to that limited period, except that the trial court appears to have concluded
that the Law Firm had no duty to actively pursue the New York claim until the
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Pennsylvania claim was finally dismissed.5 With regard to the Law Firm’s 2010
advice regarding the proper jurisdiction for a worker’s compensation claim, as
well as its alleged lack of diligence during the two years it admittedly
represented Mr. Greenawalt, we find that there were genuine issues of material
fact as to whether the Law Firm acted with reasonable care that precluded the
grant of summary judgment as a matter of law.
Nonetheless, we find that summary judgment was appropriate on an
alternate basis. The Law Firm separately sought summary judgment because
Mr. Greenawalt has not sustained any loss. The trial court did not address this
basis for summary judgment, but we find it dispositive. According to the
parties, the worker’s compensation claim is still pending in New York.6 It
remains to be seen whether the New York claim is barred by the statute of
limitations, and whether Mr. Greenawalt may yet prevail on his claim and be
entitled to benefits in that jurisdiction. Hence, the legal malpractice action
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5 The trial court reasoned: “It is clear that [the Law Firm] has acted with
reasonable care while representing the New York compensation claim pending
the outcome of the Pennsylvania conclusion, as only nine (9) days later [the
Law Firm] was sued for malpractice and consequently necessitated its
withdrawal as [Mr. Greenawalt’s] counsel.” Trial Court Opinion, 10/9/19, at 4.
6 The Law Firm indicated in its brief in support of summary judgment that the
statute of limitations will not bar a worker’s compensation claim in New York if
the employer is aware of the work-related injury prior to the expiration of the
statute, as was the case herein. Not only did Mr. Greenawalt inform his
employer of his injury on the day it happened, and complete paperwork to that
effect, the employer defended the worker’s compensation claim in
Pennsylvania on the basis of no jurisdiction.
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premised on the Law Firm’s advice regarding a worker’s compensation case,
which resulted in its possibly untimely filing in New York, is premature. There
has been no determination in the case; thus, any negligence in this regard has
not resulted in the denial of benefits, which is an ascertainable loss. See
Rizzo, supra at 60 (reiterating that “[t]he mere breach of a professional duty,
causing only nominal damages, speculative harm, or the threat of future harm
-- not yet realized -- does not suffice to create a cause of action for
negligence.”).
Mr. Greenawalt also alleged, however, that “If Plaintiff's New York
worker’s compensation claim is not time-barred and has not been dismissed,
then Plaintiff has suffered a nine-plus year delay in benefits and – most
importantly - medical treatment.” Appellant’s brief at 19-20. However, the
record details the medical treatment that Mr. Greenawalt sought and received
for his injury. See Deposition of Charles Greenawalt, 5/13/17, at 12, 24-28,
76-79. He did not assert, and certainly did not establish, that due to a lack of
worker’s compensation benefits, he did not undergo necessary medical
treatment. Furthermore, Mr. Greenawalt has offered no proof that any
negligence on the part of the Law Firm caused nine-plus years of delay in
receiving benefits. In fact, six years have elapsed since the Law Firm withdrew
from representation. Mr. Greenawalt has not retained new counsel or taken
any steps to pursue the pending claim. Id. at 73. Attorney Lewis confirmed
that he did not take any action to find other counsel to represent Mr.
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Greenawalt on his New York claim. See Deposition of Justin Lewis, Esquire,
11/9/17, at 35. Such inaction tends to undercut Mr. Greenawalt’s claim that
all loss occasioned by the delay in receiving benefits is the fault of the Law
Firm. Moreover, such a theory is predicated on proof that Mr. Greenawalt is
entitled to receive worker’s compensation benefits in New York, a fact Mr.
Greenawalt has done nothing to establish.7
Should the claim ultimately be dismissed in New York as untimely filed,
the issue of whether the Law Firm was negligent in advising Mr. Greenawalt
that jurisdiction of the worker’s compensation claim lay in Pennsylvania rather
than New York would become ripe. Even then, however, Mr. Greenawalt will
have to prove that, absent the delay in filing the claim in New York, he would
have prevailed on his claim for worker’s compensation benefits in that state.
Since he has offered no proof of loss beyond mere allegations in the pleadings,
we affirm the grant of summary judgment on that basis.8
Order affirmed.
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7 In opposition to summary judgment, Mr. Greenawalt did not attach any
documentation in support of his claims. “Where the nonmoving party bears
the burden of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a non-moving party
to adduce sufficient evidence on an issue essential to his case and on which he
bears the burden of proof establishes the entitlement of the moving party to
judgment as a matter of law.” Finder v. Crawford, 167 A.3d 40, 44
(Pa.Super. 2017).
8 We may affirm on any basis supported by the record. Hassel v. Franzi, 207
A.3d 939, 957 n.19 (Pa.Super. 2019) (affirming that this Court holding is not
limited by the trial court’s rationale and may affirm its decision on any basis).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2020
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