2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

and the attorney who have standing to assert a legal malpractice claim. To determine whether aparticular legatee is an intended third-party beneficiary our Court has established a two-part test:(1) recognition of the beneficiary’s right must be “appropriate toeffectuate the intention of the parties,” and(2) the performance must “satisfy an obligation of the promisee topay money to the beneficiary” or “the circumstances indicate thatthe promisee intends to give the beneficiary the benefit of thepromised performance.” The first part of the test sets forth astanding requirement. For any suit to be brought, the right toperformance must be “appropriate to effectuate the intentions ofthe parties.”Id. at 807 (citing Guy, 459 A.2d at 751-52).The Superior Court recognized the class of legatees that may bring suit under the thirdpartybeneficiary theory is narrow. Applying Guy to the case before the court, the SuperiorCourt stated that Mrs. Rosewater’s intentions under her will were clear and that the rule of Guydid not allow Plaintiffs to bring suit simply because they felt Mrs. Rosewater’s intent was tobequeath them a greater legacy than they received.Thus, the Superior Court held that Plaintiffs did not have standing to bring their legalmalpractice action against plaintiffs and that the trial court properly dismissed their action.W. Entry of Non Pros for Failure to Comply With Discovery OrderIn Sahutsky v. Mychak, Geckle & Welker, P.C., 900 A.2d 866 (Pa. Super. Ct. 2006),appeal denied, 916 A.2d 1103 (Pa. 2007), Plaintiff’s attorney malpractice claim was dismissedby the trial court by an entry of non pros pursuant to Pennsylvania Rule of Civil Procedure 4019,for failure to comply with a discovery order. Plaintiff subsequently filed a petition to open/strikeoff the entry of non pros which the trial court denied. After the Superior Court quashedPlaintiff’s appeal, the Pennsylvania Supreme Court vacated the Superior Court’s order andremanded for disposition on the merits.pros:On remand, the Superior Court considered three questions relating to the entry of non(1) Where a case had been non prossed under Rule 4019, doappellants have to file a petition to open/strike off before the orderis appealable, or is the order granting non pros immediatelyappealable?(2) Does the Supreme Court’s remand order overrule existingprecedent regarding whether actual prejudice must be shown if nonpros is ordered by a trial judge for failure to comply with a judicial179