J-A02036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARY HERMAN                                    IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

DONALD P. RUSSO, ESQ. D/B/A LAW
OFFICES OF DONALD RUSSO

                            Appellee                No. 1362 EDA 2014


                   Appeal from the Order Dated April 21, 2014
                 In the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2011-C-912


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                           FILED APRIL 23, 2015

       Appellant, Mary Herman, appeals from the order granting summary

judgment to Donald P. Russo, Esquire, on her claim for legal malpractice.

After careful review, we affirm.1

       Herman was employed by Carbon County Jury Selection Commission

as a full-time Jury Clerk for eighteen years. In late 2003, one member of

____________________________________________


1
   Herman also has filed an application for leave to supplement the
reproduced record with a transcript from the argument on summary
judgment in the trial court. We deny the application for two reasons. First,
Herman improperly seeks to supplement the reproduced record, but not the
certified record.   See Roth Cash Register Company, Inc. v. Micro
Systems, Inc., 868 A.2d 1222, 1223 (Pa. Super. 2005) (only documents in
the certified record are considered on appeal). Second, Herman fails to
identify what relevance the argument on summary judgment would have on
this appeal.
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the Commission, Carbon County President Judge Richard Webb, proposed

computerizing the office, eliminating the full-time Jury Clerk position, and

creating a new part-time position, to be filled by Herman.   The other two

members of the Commission voted against Judge Webb’s proposal.

     Undeterred, Judge Webb brought his proposal to the Carbon County

Salary Board. Herman sent a letter to the Carbon County Commissioners,

advocating that they vote against Judge Webb’s proposal. In a letter to one

Commissioner, Herman revealed her belief that Judge Webb was retaliating

against her due to her association and support of Jury Commissioners who

had filed a complaint to the Judicial Conduct Board against Judge Webb. The

Carbon County Commissioners ultimately adopted Judge Webb’s proposal,

and Herman’s hours and hourly wages were reduced.

     Herman alleges that she was subsequently told by Judge Webb that

her job was changed in retaliation for the Jury Commissioners’ actions.

Herman sought legal advice on her desire to file a complaint against Carbon

County due to the employment action.       The first attorney she spoke to

advised against including Judge Webb as a defendant in the complaint.

     Herman then sought the advice of Appellee Attorney Russo. Attorney

Russo also advised against including Judge Webb as a defendant, opining

that it would weaken her case before the ultimate trier of fact.    Herman

accepted this advice, as it comported with the advice she had previously

been given.


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       In 2004, Attorney Russo filed a complaint in the United States District

Court for the Middle District of Pennsylvania on behalf of Herman against the

Carbon County Commissioners who had approved the change in her

employment.     Of relevance to the current case, Herman asserted that the

Commissioners had improperly retaliated against her in violation of her

rights under the First Amendment to the United States Constitution.            The

Middle District initially dismissed the complaint.

       After the United States Court of Appeals for the Third Circuit opined

that Herman’s complaint was insufficiently specific, the case was remanded

to the Middle District to allow for an amended pleading.              In late 2007,

Attorney Russo filed a second amended complaint.           In 2009, the Middle

District granted the defendants’ motion for summary judgment, concluding

in relevant part that Herman had failed to establish that her support of the

Jury   Commissioners    had    been   a   substantial   factor   in    the   County

Commissioners’ decision to change her job.

       Directly relevant to the present matter, the Middle District penned the

following passage in granting summary judgment.

       In her deposition, [Herman] contended that “Judge Webb” acted
       to retaliate against her as part of his dispute with the Jury
       Commissioners when he changed her job.

       [Herman] has therefore produced evidence by which a jury could
       conclude that Judge Webb sought to reduce her hours in
       retaliation for her support of the jury commissioners in their
       dispute with him. Judge Webb, however, is not a defendant in
       this case. The relevant question, therefore, is not whether
       [Herman’s] speech was a substantial factor in Judge Webb’s

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      decision to change her hours, but whether [Herman’s] speech
      was a substantial factor in the [Carbon County Commissioners’]
      decision to adopt Judge Webb’s recommendation.

Herman v. County of Carbon, 2009 WL 1259083 (M.D. Pa., May 5, 2009)

(unpublished memorandum).

      Herman subsequently filed the instant action, alleging professional

malpractice, breach of contract, and breach of fiduciary duty against

Attorney Russo. On March 13, 2013, the trial court granted partial summary

judgment to Russo, dismissing all claims except those based on Attorney

Russo’s failure to name Judge Webb as a defendant in the underlying suit.

For those claims, the trial court permitted further discovery, noting that its

case management order on the issue was arguably ambiguous.

      Herman subsequently filed an expert report in support of her

contention that Attorney Russo had committed professional negligence in

failing to name Judge Webb as a defendant. Attorney Russo again moved

for summary judgment, and this time, the trial court granted the motion,

concluding that the record before it could not support Herman’s claims. This

timely appeal followed.

      On appeal, Herman raises two issues for our review.

      (1) By misapplying the summary judgment standard (i.e.,
      omitting material facts, testing remaining facts in the light least
      favorable to [Herman], and making incorrect legal conclusions
      therefrom), did the trial court err when it entered summary
      judgment against [Herman] in her legal malpractice action
      secondary to [Attorney Russo’s] failure to join an indispensable
      party in the underlying First Amendment retaliation federal
      action?

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J-A22036-15



        …

        (2) Does the coordinate jurisdiction rule/law of the
        case/estoppel doctrines preclude the entry of summary
        judgment following non-material discovery events when
        summary judgment had already been pertinently denied by a
        different judge within the same trial court on the same material
        facts?

Appellant’s Brief, at 9.

        We will address these issues in reverse order. First, Herman argues

that the trial court’s grant of summary judgment on the claim based upon

the failure to name Judge Webb as a defendant in the underlying matter was

barred by the coordinate jurisdiction rule. In relevant part, the coordinate

jurisdiction rule prevents a Common Pleas Court judge from overruling a

different judge of the same court’s resolution of a legal question in a given

case.    See Zane v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003).         The

coordinate jurisdiction rule is based upon several policy considerations.

First, economy of judicial resources is preserved through fostering the

finality of pre-trial decisions.   See id.   Second, protection of the settled

expectations of the parties is furthered by application of the rule. See id.

Third, the rule serves to bring finality to litigation, preventing endless re-

hashing of disputed points of law before trial. See id.

        Herman contends that the initial, partial grant of summary judgment,

which excluded the issue based upon Judge Webb’s involvement, acted as a

final pre-trial resolution on the legal issue involved. We note, however, that


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Herman did not raise this issue before the trial court. It is therefore waived

for purposes of appeal. See Pa.R.A.P. Rule 302(a).

         Herman contends that “this Court has held that a trial court’s opining

on an otherwise never before briefed issue constitutes a preservation of that

issue for appeal when raised by Appellant in her Concise Statement of

Issues.”     Appellant’s Reply Brief, at 7 (citation omitted).   To support this

proposition, Herman cites to a case where the Pennsylvania Supreme Court

reviewed a capital conviction. In that opinion, the Supreme Court addressed

waiver of an issue that was not preserved in the record, as the transcript of

the relevant time was unavailable.       Ultimately, the Supreme Court found

that the trial court had conceded, in the absence of an official record, that

the issue had been preserved, see Commonwealth v. Sanchez, 82 A.3d

943, 978-979 (Pa. 2013). We find Sanchez distinguishable, as there is no

allegation that the relevant record is unavailable, and there is therefore no

implication that the trial court has conceded that the issue was preserved.

         Herman also cites to two Superior Court opinions that we are unable to

construe to support Herman’s position, see Commonwealth v. Lane, 81

A.3d 974, 978 (Pa. Super. 2013) and Commonwealth v. Rodriguez, 81

A.3d 103, n.3 (Pa. Super. 2013). In contrast, we observe that Rule 302 has

been consistently applied by the Supreme Court of Pennsylvania to require

that issues be raised in front of the trial court before an appeal has been

filed.    See, e.g., Scalice v. Pennsylvania Employees Benefit Trust


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J-A22036-15


Fund, 883 A.2d 449, n.10 (Pa. 2005).              Thus, Herman’s coordinate

jurisdiction argument is waived for purposes of appeal.

      In her next issue, Herman contends that the trial court erred by

incorrectly applying the appropriate standard of review at the summary

judgment stage. We review a challenge to the entry of summary judgment

as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. 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. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).   As the plaintiff asserting a cause of action for legal

malpractice, Herman bore the burden of adducing sufficient evidence of

record to establish the following elements.        First, employment of the

attorney or other basis for a duty to the plaintiff; second, a failure of the

attorney to exercise ordinary skill and knowledge; and third, that the failure



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J-A22036-15


was the proximate cause of the harm to the plaintiff.         See Bailey v.

Tucker, 621 A.2d 108, 112 (Pa. 1993).

      With respect to the third element, causation, we note that the plaintiff

bears a difficult burden. To establish this element, the plaintiff must prove

that she would have been successful in achieving a judgment in her favor in

the underlying case. See Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa.

1998).   “It is only after the plaintiff proves [she] would have recovered a

judgment in the underlying action that the plaintiff can then proceed with

proof that the attorney [she] engaged to prosecute or defend the underlying

action was negligent in the handling of the underlying action ….” Id.

      Here, the injury suffered by Herman was the reduction in pay and

hours for her job as jury clerk. Herman does not contend that Judge Webb

independently effectuated this reduction.    Rather, all parties acknowledge

that the action was taken by the County Commissioners.

      In the underlying action, Herman sued the County Commissioners who

voted in favor of her demotion.     As noted above, the Middle District of

Pennsylvania held that that Herman had failed to adduce sufficient evidence

to establish that Herman’s alleged protected activities had been a substantial

factor in the County Commissioners’ decision to demote her.       Specifically,

the District Court highlighted the fact that, when asked about evidence that

the County Commissioners had been motivated by her protected activity,




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Herman admitted that she had none. See Herman, 2009 WL 1259083 at

*6.

         Herman contends that pursuant to the “cat’s paw” theory of liability,

including Judge Webb as a defendant would have allowed her to impute

Judge Webb’s improper motive to the County Commissioners.                In a “cat’s

paw” case, a plaintiff seeks to hold her employer liable for the improper

motives of a non-decision maker. See McKenna v. City of Philadelphia,

649 F.3d 171, 177 (3d Cir. 2011). In these cases, an employer can be held

liable    “because   one   of   its   agents   committed   an   action   based   on

discriminatory animus that was intended to cause, and did in fact cause, an

adverse employment decision.”           Staub v. Proctor Hospital, 131 S.Ct.

1186, 1193 (U.S. 2011). The plaintiff’s burden is to establish that the non-

decision making agent, motivated by an improper purpose, acted in a

manner designed to produce the adverse employment decision. See id., at

1192-1193.

         We conclude that Staub is distinguishable from the present case, as

Herman does not contend that any of the reasons provided by Judge Webb

to the County Commissioners for the adverse employment action were

untrue or otherwise inaccurate.        Nor can she establish that the reasoning

that the County Commissioners claimed in support of taking the action were

pretextual. In the record currently before us, Herman provides no evidence

to contradict the following reasoning, set forth by the Middle District of


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J-A22036-15


Pennsylvania in its memorandum granting summary judgment to the County

Commissioners.

     [Judge Webb] based his recommendation on an analysis that the
     staffing level was unnecessary. He concluded that the manual
     methods plaintiff used to update the jury pool were time-
     consuming and inefficient, and that computer-based methods
     would reduce the time and cost required for such updates.
     Accordingly, the Judge recommended that the jury clerk position
     be reduced to a part-time job. The board based its decision to
     make the jury-clerk position half-time on this recommendation.
     Judge Webb’s decision reducing staffing was consistent with the
     approach advocated by the Pennsylvania Supreme Court to
     reduce staffing.

Herman, 2009 WL 1259083 at *5 (citations omitted).

     Put simply, we conclude that Herman has failed to establish that

including Judge Webb as a defendant in the underlying action would have

changed the outcome in the Middle District of Pennsylvania. Even assuming,

as we must under our standard of review, that Judge Webb was motivated

by an improper animus of retaliation, there is no evidence, or even

argument, that the reasons he presented to the County Commissioners were

untrue with respect to any factual assertions.   To the extent that Judge

Webb’s presentation to the County Commissioners involved his own personal

opinions, there is no evidence, or even argument, that these opinions were

against the policy set forth by the Supreme Court of Pennsylvania, nor is

there evidence or argument that such policy was applied in a discriminatory

manner.    Thus, Herman failed to establish that Judge Webb’s alleged

retaliatory animus was a proximate cause of the County Commissioner’s


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J-A22036-15


decision to reduce the hours and rate of pay of Herman’s job.   Herman’s

argument on appeal merits no relief.

     Order affirmed. Application for Leave to Supplement the Reproduced

Record denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




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