2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

underlying action and that such negligence was the proximatecause of the Plaintiff’s loss since it prevented the Plaintiff frombeing properly compensated for his loss.Id. at 1030; see also Still v. Saul Ewing, L.L.P., No. 3737, 2009 Phila. Ct. Com. Pl. LEXIS 190(Phila. Cty. Ct. Com. Pl. Sept. 10, 2009) (granting summary judgment when plaintiff did nothave a viable cause of action at the time he was represented by Defendants); Weller v. Ransom-Garner, No. 05-cv-2758, 2008 U.S. Dist. LEXIS 49953 (E.D. Pa. June 27, 2008) (grantingsummary judgment where Plaintiff fails to provide any support beyond speculation, conclusoryallegations and mere denials for contention that trial judge would have reached differentconclusion had attorney-Defendants acted differently); aff’d, 338 Fed. Appx. 249 (3d Cir. 2009)(not precedential); Garland v. U.S. Airways, Inc., No. 05-140, 2006 WL 2927271 (W.D. Pa.2006) (under first prong of legal malpractice test, no duty owed by attorney to adverse party),reconsideration denied, 2007 WL 433178 (W.D. Pa. 2007), aff’d, 270 Fed. Appx. 99 (3d Cir.2008) (not precedential), cert. denied, 129 S.Ct. 125 (2008); CBC Innovis, INC. v. Federman &Phelan,LLP, No. 4147, 2009 Phila. Ct. Com. Pl. LEXIS 50 (Phila. Cty. Ct. Com. Pl. Feb. 18,2009) (defendant attorney did not owe a duty to confirm payoff data provided by Plaintiff inconnection with a foreclosure action), aff’d, 11 A.3d 1022 (Pa. Super. Ct. 2010); WindwardAgency, Inc. v. Russell, No. 3333, 2009 Phila Ct. Com. Pl. LEXIS 196 (Phila. Cty. Ct. Com. Pl.Oct. 1, 2009), aff’d, 11 A.3d 1035 (Pa. Super. 2010), pet. for allowance of app. denied, 23 A.3d542 (Pa. 2011) (foregoing the right to name an arbitrator and losing all right to participate innaming a neutral arbitrator is clearly below the professional standard of care).In Stacey v. City of Hermitage, 02-Cv-1911, 2008 WL 941642 (W.D. Pa. 2008), thecourt set forth the requirements for establishing a legal malpractice claim and discussed whetherPlaintiff’s allegations regarding breach and causation were legally sufficient. The court statedthere must be “proof of actual loss rather than a breach of a professional duty causing onlynominal damages, speculative harm or the threat of future harm.” (quoting Kituskie v.Corbmanu, 714 A.2d at 1030). The only reference to legal malpractice in Plaintiffs’ AmendedComplaint stated “[b]ecause of the actions and omissions of the ‘malpractice’ Defendants(Attorney Ferry and his firm Watts & Pepicelli, and Attorney Cartwright) injured their respectiveclients … Plaintiff seek damages for those injuries.”The court characterized Plaintiff’s allegations as bare and conclusory and found theywere not sufficient facts pled regarding a failure to exercise ordinary professional skill andknowledge. The court also explained the failure to file a complaint, without more “may be‘consistent with’ wrongful conduct, but it is not ‘suggestive’ of misconduct.” (quoting BellAtlantic Corp v. Twombly, 550 U.S. 554 (2007)). The court further noted that a failure to file acomplaint is not suggestive of misconduct because attorneys have an independent professionalobligation to undertake a reasonable investigation prior to filing suit and to avoid filing frivolousclaims. The court found that there were no allegations to satisfy the causation requirement, asPlaintiff did not allege how the attorneys’ alleged breach caused any actual loss. The court alsonoted that Plaintiff could not avoid the two year statute of limitations for negligence actions bycharacterizing the negligence action as a breach of contract action.A notable case regarding a plaintiff’s burden to prove a “case within a case” is Barcola v.Hourigan, Kluger & Quinn, 82 Pa. D. & C. 4th 394 (Lackawanna Cty. Ct. Com. Pl. Dec. 29,145