2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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underlying cause of action involved an agreement of sale for the plaintiffs’ company andthe plaintiffs contended the defendant attorney informed the plaintiffs they would not bepersonally liable for unpaid taxes after the sale of the company. After discovering theplaintiffs still were liable for the unpaid taxes, the plaintiffs filed a breach of contract claimagainst their attorney. The court relied on Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993),which found damages for a breach of contract claim “will be limited to the amount actuallypaid for the services plus statutory interest.” The court in Coleman concluded thatrecovery for legal malpractice actions in assumpsit is limited to the amount paid for thelegal services plus statutory interest and found the plaintiffs could not state a cause ofaction because they failed to pay the defendant for legal services in connection with theunderlying action.Plaintiffs may recover punitive damages in a legal malpractice cause of action. InTheise v. Carroll, No. 10-CV-1715, 2011 WL 1584448, at *2 (M.D. Pa. Apr. 27, 2011), thecourt noted under Pennsylvania law “punitive damages may be awarded in legalmalpractice cases where the defendant has engaged in conduct that is outrageous becauseof the defendant’s evil motive or reckless indifference to the rights of others.” The Courtfound the complaint sufficiently stated a punitive damages claim where the complaintalleged the defendants took unauthorized actions on the plaintiffs’ behalf and failed tonotify the plaintiffs of such actions. Id., at *3. The complaint alleged the defendants filed acomplaint in New York even though the defendants knew the complaint was frivolous andwithout merit because venue was not proper. In addition, the complaint alleged that afterthe case was transferred to Pennsylvania, the defendants failed to file a statement ofmaterial facts or memorandum in opposition to the motion to dismiss. The court noted thelisted conduct was “not an exhaustive list of the plaintiff’s allegations.” Id. The complaintalso alleged the actions were intentional, fraudulent, and/or reckless to hide the defendant’sprofessional negligence.In Kirschner v. K & L Gates LLP, No. GD 09-01-015557, 2010 WL 5504811 (C.P.Allegheny Dec. 28, 2010), the Court of Common Pleas of Allegheny County addressedwhether a company insolvent at the time of the alleged attorney negligence for failing touncover a fraud, was harmed because the company’s insolvency increased by more than$500 million from the time of the alleged negligence to the time when the fraud wasuncovered. The court discussed case law addressing whether deepening insolvency can beeither an independent cause of action or a form of damages. Following this discussion, theKirschner court found the losses of the new creditors was not caused by the defendant’smalpractice because there was no link between the defendant’s report and the losses of newcreditors.F. CollectabilityIn Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998), the Supreme Court recognized theaffirmative defense of non-collectability in legal malpractice actions. The court held thefollowing:[t]he collectability of damages in an underlying case is a matter whichmust be considered in a legal malpractice action and the Defendant/lawyer154
ears the burden of proving by a preponderance that the underlying casewhich formed the basis of the damages award in a legal malpractice actionwould not have been fully collectible.Id. at 1030. After all, the Kituskie court noted, “it would be inequitable for the Plaintiff to beable to obtain a judgment against the attorney which is greater than the judgment that thePlaintiff could have collected from the third party; the Plaintiff would be receiving a windfall atthe attorney’s expense.” Id. Finally, the court noted in a footnote that collectability is a juryquestion. Id. at n.5.In Bayview Loan Servicing, LLC v. Law Firm of Richard M. Squire & Assoc., LLC,No. 10-1415, 2011 WL 1810603 (E.D. Pa. May 12, 2011), the Court found an affidavit fromthe defendant in the underlying lawsuit describing his limited resources and stating he didnot and does not have the financial capacity to pay a deficiency judgment was sufficient “togive rise to a genuine issue of fact regarding collectability.”G. PrivityIn Cost v. Cost, 677 A.2d 1250 (Pa. Super. Ct. 1996), appeal denied, 689 A.2d 233 (Pa.1997), the court granted Defendants’ demurrer. Specifically, the court found that the allegationsin Plaintiff’s complaint failed to allege that the Plaintiff “sought” legal assistance whichDefendants either expressly or impliedly agreed to render. Consequently, since the requisiteelement of privity was missing, the court held that Plaintiff failed to aver facts sufficient toestablish grounds for a legal malpractice suit. Id.In a case of first impression, the court in Erwin v. Clark, 38 Pa. D. & C. 4th 170,(Dauphin Ct. Ct. Com. Pl. 1997), ruled that an attorney working for a corporation may be suedby its shareholder for legal malpractice.In Silver v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, No. 03-4393, 2004 U.S.Dist. LEXIS 14651 (E. D. Pa. July 28, 2004), the court had to determine whether an allegedlychampertous assignment was valid. Because the assignee communicated with Defendant lawfirm on behalf of the assignor and had paid a portion of the retainer fee, the assignment wasdeemed not champertous and, therefore, valid. Id. at *10-11.In the absence of an express contract, an attorney-client relationship will be found if itcan be shown that(1) the purported client sought advice or assistance from theattorney; (2) the advice sought was within the attorney’sprofessional competence; (3) the attorney expressly or impliedlyagreed to render such assistance; and (4) it was reasonable for theputative client to believe the attorney was representing him.Capital Care Corp., 847 A.2d at 83 (citing Minnich v. Yost, 817 A.2d 538, 542 (Pa. Super. Ct.2003), appeal denied, 827 A.2d 1202 (Pa. 2003)).155
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EMTALA CASES ......................
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Filing an Affidavit of Non-Involvem
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II.PROFESSIONAL LIABILITY - AN OVER
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The Superior Court reversed the tri
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to a third party pursuant to the st
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After approximately five months, De
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learned the day after the surgery t
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conduct to the delay in colon cance
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court admitted the expert’s testi
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(b)(c)other reasonable causes, incl
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corroborated his testimony. The cou
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husband’s estate. Plaintiff alleg
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Other notable federal cases arising
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The Superior Court found that in re
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§ 1303.512(b). The court, however,
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In Neidig v. United States, No. 07-
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Additionally, the Supreme Court not
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were not indicated for her conditio
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surgeon is the same as it would be
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It should be noted that the Superio
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Finally, the court held that the tr
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The Supreme Court of Pennsylvania r
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nurses deviating from applicable st
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certainty, the court reviews expert
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Under Pennsylvania law, the Court n
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testimony, Defendant presented his
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Following Cooper v. Roberts, 286 A.
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Plaintiff developed chronic diarrhe
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where payment is made by Medicaid w
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accomplished. In Valles v. Albert E
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In 1980, the Pennsylvania Superior
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Plaintiff had a routine monitoring
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Plaintiff’s Contract ClaimsThe Co
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is a failure to report changes in a
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unit to assure post-surgical patien
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sliced his wrist and arm with a raz
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licensed professionals for whom the
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(c)Limitations of Corporate Neglige
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Even more recently, our Superior Co
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(a)HMO IssuesIn McClellan v. Health
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affidavit submitted by Defendants o
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treatments while at VA’s faciliti
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[s]ubstantively, we believe that a
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The party claiming the benefit of t
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deprive (him) of civil rights guara
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found that the District Court was w
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With respect to fraudulent concealm
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would be applied in situations wher
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they had not raised them in the cou
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(a)Informed ConsentUnder MCARE, a p
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civil enforcement provisions and ma
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MCARE also changes the manner in wh
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whose death, in 2005, was allegedly
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Page 112 and 113: health center or its equivalent or
Page 114 and 115: In Pennsylvania Medical Society, th
Page 116 and 117: to any professional who is alleged
Page 118 and 119: Since the 2005 amendments, there ha
Page 120 and 121: ule, but who intentionally ignores
Page 122 and 123: the original Complaint was delivere
Page 124 and 125: foreclose all challenges against th
Page 126 and 127: number of boxes), which was support
Page 128 and 129: questions of professional judgment
Page 130 and 131: deviated from any professional stan
Page 132 and 133: The Third Circuit affirmed the Dist
Page 134 and 135: claims and cross-claims remain agai
Page 136 and 137: By an Amendatory Order dated March
Page 138 and 139: The court acknowledged that there i
Page 140 and 141: apply and that the trial court misa
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Page 144 and 145: E. Preemption of Vaccine Design Def
Page 146 and 147: 2. Pa. R. Civ. Pro. 1036.1 - Reinst
Page 148 and 149: Barrick, at *34-35.Furthermore, the
Page 150 and 151: (b) the utility of the defendant’
Page 152 and 153: 2006). In this case, Plaintiffs bro
Page 154 and 155: B. Elements of a Cause of Action fo
Page 156 and 157: decision in Muhammad precluded Mr.
Page 158 and 159: considered speculative “only if t
Page 162 and 163: In Capital Care Corp., the Superior
Page 164 and 165: The court found, however, to state
Page 166 and 167: of reasonable diligence. The standa
Page 168 and 169: not be set aside. On July 7, 2005,
Page 170 and 171: complete bar to recovery. Since a l
Page 172 and 173: On appeal, Plaintiffs claimed that
Page 174 and 175: In Liggon-Redding, 659 F.3d at 265,
Page 176 and 177: elieved of those minimum standards
Page 178 and 179: elevant to the proceedings, the com
Page 180 and 181: establish professional misconduct b
Page 182 and 183: Upholding the Superior Court’s Or
Page 184 and 185: Id.Rejecting revocation and suspens
Page 186 and 187: order as a sanction under Rule 4019
Page 188: {1009912]182
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2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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