J-A25006-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

THERESE M. GREIM, NICOLE GREIM, A : IN THE SUPERIOR COURT OF
MINOR, BY THERESE M. GREIM, :            PENNSYLVANIA
GUARDIAN, AND EVAN GREIM,         :
                                  :
               Appellants         :
                                  :
          v.                      :
                                  :
MARY V.Z. WACHTERHAUSER AND :
JESSICA SIROLLY,                  :
                                  :
               Appellees          : No. 479 EDA 2015

                   Appeal from the Order January 28, 2015,
                  Court of Common Pleas, Delaware County,
                       Civil Division at No. 2013-2893

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 20, 2015

      Appellants, Therese M. Greim (“Mother”), Evan Greim, and Nicole

Greim, a minor, by Mother (the latter two appellants referred to collectively

as “the children”), appeal from the January 28, 2015 order entered by the

Delaware County Court of Common Pleas granting the motion for a directed

verdict requested by Mary V.Z. Wachterhauser (“Attorney Wachterhauser”)

and Jessica Sirolly (“Attorney Sirolly”) (referred to collectively as “counsel”)

in this legal malpractice action. Upon review, we affirm.

      The trial court summarized the relevant factual and procedural

histories of the case as follows:

               Mother and Robert Greim (“Father”) were married
            in 1994. In 1998, Father obtained a term life
            insurance policy with a death benefit of three



*Former Justice specially assigned to the Superior Court.
J-A25006-15


          hundred fifty thousand dollars ($350,000.00). The
          parties had two (2) children during the marriage who
          were born in 1995 and 1999, respectively. Mother
          and Father separated in 2008 and Mother [retained
          counsel, who] filed for divorce [on her behalf] on
          February 2, 2009. In 2010, Father’s life insurance
          policy lapsed due to Father’s failure to pay premiums
          and Mother received notification of the lapse by
          letter dated August 31, 2010. The August 31, 2010
          letter included notice that the policy would not be
          reinstated absent proof of Father’s insurability.
          During an equitable distribution hearing on October
          10, 2010, Mother and Father entered into a property
          settlement agreement [“PSA”]. As part of the [PSA],
          Father agreed to reinstate and/or obtain a life
          insurance policy with a death benefit of three
          hundred fifty thousand dollars ($350,000.00), name
          the children as beneficiaries of the policy and
          maintain such as long as was financially feasible. In
          the event Father experienced a change of financial
          circumstances, Father reserved the right to maintain
          a policy as low as fifty thousand dollars
          ($50,000.00).     [Counsel’s]      representation   of
          Appellants terminated no later than February 17,
          2011. Father died on April 11, 2011 without a life
          insurance policy.

              Appellants initiated the instant action by [w]rit of
          [s]ummons on April 1, 2013. In their [c]omplaint
          filed on May 7, 2013, they allege that [counsel] were
          negligent in their representation of Appellants in an
          equitable distribution action between Mother and
          Father. Appellants allege that negligence caused the
          children to be left without the benefit of the life
          insurance policy that Father agreed to reinstate
          and/or obtain for the children’s benefit. Appellants
          also allege that [counsel’s] negligence caused Mother
          to incur unexpected financial costs related to the
          children’s ongoing health, education and welfare.

             [Counsel] filed preliminary objections on August
          12, 2013 arguing, inter alia, that Mother should be
          dismissed as a plaintiff because Appellants failed to



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            allege that Mother had any interest in the proceeds
            of the life insurance policy that was to have the
            children as beneficiaries and, therefore, failed to
            establish that Mother suffered or was entitled to
            recover damages. The Honorable Christine Fizzano-
            Cannon entered an [o]rder on October 16, 2013
            dismissing Mother as a plaintiff. Subsequently, on
            July 14, 2014, Appellants filed a [p]etition for [l]eave
            to [f]ile [a]mended [c]omplaint seeking to add
            Mother back in as a plaintiff. Appellants allege that
            on July 2, 2014, following a subpoena issued on May
            23, 2014, Mother discovered she was the beneficiary
            of Father’s prior insurance policy at the time that it
            lapsed in 2010. Appellants allege further that the
            lapse of the policy was a result of further legal
            malpractice by [counsel]. On August 4, 2014,
            [counsel] filed their [o]pposition to [a]ppellants’
            [p]etition claiming, inter, alia, that any individual
            claim for legal malpractice by Mother is barred by
            the applicable statute of limitations. An [o]rder was
            entered on August 13, 2014 denying Appellants’
            [p]etition.

                Following the close of evidence at trial on the
            children’s claims alone, [counsel] made an oral
            motion for directed verdict. Based upon the issues
            raised by [counsel] and upon consideration of all the
            evidence and testimony offered at trial, reviewed in a
            light most favorable to Appellants, an [o]rder was
            entered on September 17, 2014 directing verdict in
            favor of [counsel]. Appellants filed their [m]otion for
            [p]ost –[t]rial [r]elief on September 29, 2014, which
            was denied by [o]rder dated January 28, 2015. A
            [p]raecipe to [e]nter [j]udgment on [the d]irected
            [v]erdict was filed on February 4, 2015 and,
            subsequently, final [j]udgment was entered in favor
            of [counsel].

Trial Court Opinion, 4/13/15, at 2-4 (record citations omitted).




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      On appeal, the children1 raise one issue for our review:

            Did the lower court commit legal error and/or abuse
            its discretion[] by having directed a verdict in favor
            of [counsel] as to the attorney malpractice claim of
            [the children] against [counsel] due to the absence
            of a prior agreement by [Father] to reinstate or
            replace the $350,000 life insurance policy[] naming
            the [c]hildren as beneficiaries[] as required by the
            terms of the October 13, 2010 [PSA] between
            [Mother] and [Father] and/or the purported
            preclusive effect of the Divorce Code applicable to
            equitable distribution cases?

Appellants’ Brief at 2.

      We begin by stating our well-settled standard and scope of review of a

trial court’s grant of a motion for a directed verdict:

               In reviewing a trial court’s decision whether or not
            to grant judgment in favor of one of the parties, we
            must consider the evidence, together with all
            favorable inferences drawn therefrom, in the light
            most favorable to the verdict winner. … We will
            reverse a trial court’s grant or denial of a directed
            verdict [] only when we find an abuse of discretion
            or an error of law that controlled the outcome of the
            case. Further, the standard of review for an appellate
            court is the same as that for a trial court.

               There are two bases upon which a directed verdict
            [] can be entered; one, the movant is entitled to
            judgment as a matter of law and/or two, the
            evidence is such that no two reasonable minds could
            disagree that the outcome should have been
            rendered in favor of the movant. With the first, the
            court reviews the record and concludes that, even
            with all factual inferences decided adverse to the


1
   The issue raised on appeal pertains solely to the trial court’s issuance of a
directed verdict in favor of counsel. As Mother was not a party at trial, the
issue is raised solely by the children.


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J-A25006-15


            movant, the law nonetheless requires a verdict in his
            favor. Whereas with the second, the court reviews
            the evidentiary record and concludes that the
            evidence was such that a verdict for the movant was
            beyond peradventure.

Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012)

(citation omitted).

      To prove a claim of legal malpractice, the plaintiff has the burden of

proving three elements: “1) employment of the attorney or other basis for a

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.” Nelson v. Heslin, 806 A.2d 873, 876 (Pa. Super. 2002) (citation

omitted). “An essential element to this cause of action is proof of actual loss

rather than a breach of a professional duty causing only nominal damages,

speculative harm or threat of future harm.” Id. (citation omitted). Further,

            [o]ur Supreme Court has held that “a legal
            malpractice action in Pennsylvania requires the
            plaintiff to prove that [s]he had a viable cause of
            action against the party [s]he wished to sue in the
            underlying case and that the attorney [s]he hired
            was negligent in prosecuting or defending that
            underlying case (often referred to as proving a ‘case
            within a case’).” Kituskie v. Corbman,[] 714 A.2d
            1027, 1030 ([Pa.] 1998). …“It is only after the
            plaintiff proves [s]he would have recovered a
            judgment in the underlying action that [she] can
            then proceed with proof that the attorney [s]he
            engaged to prosecute ... the underlying action was
            negligent in the handling of the underlying action
            and that negligence was the proximate cause of the
            plaintiff's loss since it prevented [her] from being
            properly compensated for [her] loss.” Id.



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Sokolsky v. Eidelman, 93 A.3d 858, 862-63 (Pa. Super. 2014).

      The children assert that the trial court erred by taking the case away

from the jury and directing a verdict in favor of counsel. Appellants’ Brief at

27-28.    According to the children, they presented evidence through the

testimony of Mother and the children’s expert witness, Attorney Samuel C.

Totaro, that (1) there was an implied attorney-client relationship between

counsel and the children2; (2) counsel negligently failed to investigate

whether Father was insurable; and (3) this negligence was the proximate

cause of the children’s damages – the loss of the insurance policy. Id. at

16, 22, 24-25. The children state that there is no basis for finding that their

damages were speculative – only the fact of damages must be proven, not

the amount.    Id. at 24 (citing Rizzo v. Haines, 555 A.2d 58, 69 (Pa.

1989)).   The children further argue that the PSA must be evaluated as a

contract, to which the children were intended third party beneficiaries, and

that they would have successfully been able to sue Father for breach of

contract. Id. at 20-22.




2
  “Absent an express contract, an implied attorney-client relationship will be
found if 1) the purported client sought advice or assistance from the
attorney; 2) the advice sought was within the attorney's professional
competence; 3) the attorney expressly or impliedly agreed to render such
assistance; and 4) it is reasonable for the putative client to believe the
attorney was representing him.” Cost v. Cost, 677 A.2d 1250, 1254 (Pa.
Super. 1996) (quoting Atkinson v. Haug, 622 A.2d 983, 986 (Pa. Super.
1993)) (internal citation omitted).


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      At the close of trial, when granting counsel’s motion for a directed

verdict, the trial court stated the following:

                I find that the facts are clear and there’s no room
            for doubt that the claim of the [d]efense [sic] should
            be removed [from] the jury’s consideration. I’ve
            considered the testimony of the [p]laintiff[s] and the
            evidence presented[] [a]nd have arrived at [the
            conclusion that] even if there was an attorney[-
            ]client relationship between the attorneys, the
            [d]efendants, and the children, and even if there was
            negligence, I haven’t seen where the [children have]
            sufficiently proved that any negligence was the
            []proximate cause of any actual damages. And my
            reasoning is because [] the children[] had no
            underlying cause of action against [F]ather for any
            proceeds of any life insurance policy prior to
            [M]other entering into a [PSA].

N.T., 9/17/14, at 26-27.       In its written opinion pursuant to Pa.R.A.P.

1925(a), the trial court further explains that the life insurance provision was

part of the equitable distribution order, and pursuant to the Divorce Code, a

court’s “authority is limited to directing that existing policies be maintained

with existing beneficiary designations and the discretion to require the

purchase of a life insurance policy to protect the interests of a party.” Trial

Court Opinion, 4/13/15, at 7 (citing 23 Pa.C.S.A. § 3502(d)). The children

lacked standing to participate in the equitable distribution hearing or to

challenge the resultant order. Id. at 7-8. The trial court further found that

even if the children had a viable cause of action against Father, they failed

to prove the existence of damages, as they failed to present evidence that

Father was in fact uninsurable, and Mother never sought to enforce the



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provision requiring that Father purchase life insurance for the children’s

benefit. Id. at 8.

       Upon reviewing the record, we find no error or abuse of discretion in

the trial court’s decision to grant counsel’s motion for a directed verdict as

the evidence, viewed in the light most favorable to the children, entitled

counsel to judgment as a matter of law.         See Hall, 54 A.2d at 395.

Assuming solely for the sake of this argument that counsel owed a duty to

the children and that counsel breached that duty, as the children claimed, by

failing to investigate whether Father was insurable, there is absolutely no

evidence of record to support a conclusion that counsel’s negligence in this

respect was the proximate cause of any damages. See Nelson, 806 A.2d at

876.

               Proximate cause is a term of art denoting the
            point at which legal responsibility attaches for the
            harm to another arising out of some act of
            defendant, ... and it may be established by evidence
            that the defendant’s negligent act or failure to act
            was a substantial factor in bringing about the
            plaintiff's harm. The defendant's negligent conduct
            may not, however, be found to be a substantial
            cause where the plaintiff’s injury would have been
            sustained even in the absence of the actor’s
            negligence.

Wilson v. PECO Energy Co., 61 A.3d 229, 237-38 (Pa. Super. 2012)

(quoting Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978)).

       The record reflects that Attorney Totaro testified that in his expert

opinion, Attorney Sirolly breached her duty to the children by failing to



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investigate whether Father was insurable upon learning that Father had a

medical condition that could be a basis to deny him insurance, as she was

aware that for Father to obtain medical insurance, he had to provide proof of

insurability.   N.T., 9/16/14 (Volume I), at 74.         Attorney Totaro further

testified that this failure by Attorney Sirolly was “directly related to the

damages, which is the loss of the policy.” Id. at 78.

       The only way Attorney Sirolly’s negligence in failing to investigate

Father’s insurability could have proximately caused the loss of the policy,

however, is if Father was not in fact insurable (i.e., that he failed to obtain

life insurance policy because he was uninsurable). The children concede that

there was no evidence regarding Father’s insurability. They baldly state that

such a requirement would be “absurd,” because “it would be impossible to

ascertain and prove the insurability of a person after his death.” Appellants’

Brief at 22.    We disagree, as we see no reason that a medical witness or

someone from an insurance agency could not review Father’s medical

records during the relevant time period and make a determination as to

Father’s insurability at that time.

       The children also attempt to shift the burden of proof on this issue,

stating, without citation to authority, that evidence that Father was

uninsurable went to an “‘impossibility of performance’ defense,” and that

counsel had the “burden to prove such defense by proffering facts showing

that   [Father]   was   uninsurable   (rendering   his    contract   performance



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impossible).” Id. As the above-cited case law makes clear, however, the

children had the burden to prove that counsel’s negligence (the failure to

investigate Father’s insurability) was the proximate cause of damage (the

loss of the insurance policy). See Nelson, 806 A.2d at 876. The children

failed to satisfy their burden of proof regarding a material element of a claim

of legal malpractice, and as such, counsel was entitled as a matter of law to

the entry of judgment in their favor.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015




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