J-A04022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN F. CONLEY,                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

WILLIAM E. STOCKEY AND STOCKEY
AND KELLY, JOINTLY AND SEVERALLY,

                            Appellees                 No. 548 WDA 2015


                    Appeal from the Order February 26, 2015
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD 09-22371


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 26, 2016

       John F. Conley appeals from the order entered February 26, 2015,

which granted summary judgment to William E. Stockey and Stockey & Kelly

(collectively, Stockey) in this legal malpractice action. We affirm.

       In 2005, Jeffrey A. Butya approached Appellant, seeking a loan of

$100,000.1 Appellant and Mr. Butya both had been represented by Stockey

previously, and the three of them knew each other well.2 Appellant trusted


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1
  We derive the factual background to this case from Appellant’s deposition,
attached to his response to Stockey’s motion for summary judgment. See
Response, 01/02/2015, Exhibit A.
2
  Stockey represented Appellant previously in various collection efforts and
real estate issues.
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Stockey.    Thus, Mr. Butya suggested that Stockey could facilitate the loan

transaction.

       In September 2005, Appellant, Mr. Butya, and Stockey met to discuss

the potential loan.        In addition, Appellant and Stockey discussed the

potential loan during at least one phone conversation. However, Appellant

could not recall whether Stockey offered any advice regarding the potential

loan. As a result of these conversations, and as Mr. Butya continued to owe

Appellant money from a previous loan, it was determined that a new loan

would be formalized and would incorporate the pre-existing debt as well.

       In October 2005, Appellant and Mr. Butya agreed to terms in a formal

closing whereupon Appellant loaned $150,000 to Mr. Butya.3 The loan was

secured purportedly by a mortgage to real property owned by Mr. Butya’s

brother, Brian Butya.       However, at the closing, Appellant signed a waiver,

acknowledging expressly that the property was subject to foreclosure

proceedings that may render the loan unsecured. See Waiver, 10/20/2005.

       Shortly after closing, Mr. Butya defaulted on the loan.        Appellant

obtained a judgment, which was affirmed by this Court.         See Conley v.

Butya, 62 A.3d 463 (Pa. Super. 2012) (unpublished memorandum).


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3
   Although the parties signed a note suggesting that Appellant loaned
$150,000 to Mr. Butya, in fact, Appellant only provided $100,000. Mr. Butya
also owed an additional $12,000 to Appellant from a previous loan.




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Attempts to collect on this judgment have been unsuccessful. See Second

Amended Complaint, 04/10/2013, at ¶ 38.

        The documents for the 2005 loan transaction were drafted by Attorney

Michael Carr, Esq., who also attended the October 2005 closing. Appellant

presumed that Stockey had reviewed all of the documents.             However,

Stockey was neither present at the closing, nor did he review or discuss the

documents with Appellant prior to the closing.     In addition, Stockey never

billed Appellant for any legal services, and Appellant never paid Stockey any

legal fees.

        Appellant commenced this action by writ of summons in December

2009.     Appellant filed a complaint in October 2010, claiming professional

negligence and breach of contract.       Stockey filed preliminary objections;

Appellant filed an amended complaint.          Following a second round of

preliminary objections, this action was stayed pending resolution of

Appellant’s claims against Mr. Butya. In April 2013, Appellant filed a second

amended complaint. Again, Stockey filed preliminary objections, resulting in

the dismissal of Appellant’s contract claim. In November 2012, Stockey filed

a motion for summary judgment.         Appellant timely responded.   Following

argument, the trial court granted Stockey’s motion for summary judgment

and dismissed Appellant’s complaint.

        Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.


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       Appellant raises the following issues:

       [1.] Whether the trial court erred in granting summary judgment
       to [Stockey] on the basis of credibility determinations[;]

       [2.] Whether the trial court erred in granting summary judgment
       where material issues of fact exist[; and]

       [3.] Whether the trial [c]ourt erred in ruling that an attorney-
       client relationship could not exist absent a fee agreement
       between Appellant and [Stockey].

Appellant’s Brief at 2.

       Although Appellant purports to raise three issues before this Court, his

brief presents two, distinct arguments. See Appellant’s Brief at i, 9, and 14.

First, according to Appellant, the trial court impermissibly relied upon

deposition testimony of Attorney Carr, who was deposed on behalf of

Stockey, thus violating the Nanty-Glo Rule.        See Appellant’s Brief at 14-

17.4   Second, Appellant suggests that he proffered sufficient evidence to

establish that an attorney-client relationship existed between Appellant and

Shockey.     Id. at 9-14.     Technically, Appellant’s brief does not conform to

Rule 2119 of the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P.

2119(a) (“The argument shall be divided into as many parts as there are

questions to be argued[.]”). Moreover, Appellant presents his arguments in


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4
  The Nanty-Glo Rule precludes summary judgment based solely upon
testimonial evidence of the moving party or its witnesses. See Shamis v.
Moon, 81 A.3d 962, 965 (Pa. Super. 2013); Nanty-Glo v. American
Surety Co., 163 A. 523 (Pa. 1932).



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reverse order of the issues he identifies. Nevertheless, as these defects do

not preclude our review, we will address his arguments.

     The standard and scope of our review are as follows:

     Our standard of review of an order granting summary judgment
     requires us to determine whether the trial court abused its
     discretion or committed an error of law[,] and our scope of
     review is plenary.    We view 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. Only where there is no genuine issue
     as to any material fact and it is clear that the moving party is
     entitled to a judgment as a matter of law will summary
     judgment be entered.

     …

     Where the non-moving 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.         Further, failure of a
     nonmoving 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.

Silvagni v. Shorr, 113 A.3d 810, 812 (Pa. Super. 2015) (quoting Sokolsky

v. Eidelman, 93 A.3d 858, 861–62 (Pa. Super. 2014)).

     It is long settled that “summary judgment may not be entered where

the moving party relies exclusively upon deposition testimony in order to

establish that there is no genuine issue of material fact.” Drapeau v. Joy

Techs., Inc., 670 A.2d 165, 167 (Pa. Super. 1996) (citing Penn Center

House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989); Nanty-Glo, 163

A. at 524). Nevertheless, we may affirm a decision “on any grounds that are




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supported by the record.” Shamis, 81 A.3d at 970 (citing Cassel-Hess v.

Hoffer, 44 A.3d 80, 85 (Pa. Super. 2012)).

      In his first issue, Appellant asserts that the trial court impermissibly

“based its decision on credibility determinations.” Appellant’s Brief at 14. In

particular, Appellant challenges the court’s reliance upon the deposition

testimony of Attorney Carr to refute Appellant’s claim that Stockey’s current

representation was established by previous efforts made on Appellant’s

behalf:

      More persuasive is that Attorney Michael Carr was contacted by
      Attorney Stockey, told of the conflict that existed for Stockey in
      representing either [Appellant] or [Butya]. Attorney Michael
      Carr was subsequently hired by Jeffrey Butya, drafted the
      documents necessary to finalize the 2005 [l]oan, attended the
      closing and he was paid for services associated with same.
      Further bolstering … Stockey’s claim, [Attorney] Carr testified
      that Stockey did not represent [Appellant] or anyone else with
      regard to [the] 2005 [l]oan or [c]losing.

Trial Court Opinion, 05/26/2015, at 6 (emphasis added; citing the deposition

of Attorney Carr). According to Appellant, it was improper for the trial court

to assess the credibility of witnesses, and this error precluded entry of

summary judgment.

      Appellant’s argument is not persuasive. In our view, the trial court’s

analysis was flawed, and we disapprove of the trial court’s determination

that Attorney Carr’s testimony was “more persuasive” than Appellant’s

evidence to the contrary.      See Silvagni v. Shorr, 113 A.3d at 812

(requiring that we view the record in the light most favorable to the non-


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moving party). Nevertheless, this was not the sole basis of the trial court’s

decision.

       To the contrary, the trial court properly recognized that in order to

state a claim of attorney malpractice, a plaintiff must establish:

       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.

Trial Court Opinion at 5 (citing Kituskie v. Corbman, 714 A.2d 1027, 1029

(Pa. 1998)). Having established this framework, the trial court noted that it

was undisputed that Appellant and Stockey never entered into a fee

agreement regarding the 2005 loan; that Stockey never reviewed the loan

documents with Appellant prior to closing; and that Appellant never paid

Stockey for legal services. Id. at 6. Based upon this absence of evidence,

the court determined that Appellant could not establish employment of

Stockey. We discern no abuse of the court’s discretion in this regard.5

       In his second issue, Appellant contends the trial court erred as a

matter of law when it required the existence of a fee agreement to establish

an attorney-client relationship between him and Stockey.             According to

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5
   Alternatively, the trial court also referenced Appellant’s waiver,
acknowledging expressly that the property was subject to foreclosure
proceedings that may render the loan unsecured. It is not clear from the
court’s opinion why the court found this undisputed evidence significant. In
our view, the waiver is irrelevant to whether Appellant employed Stockey for
legal services, though it may have been probative in another context.



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Appellant, there was sufficient evidence to establish an implied attorney-

client relationship existed. See Appellant’s Brief at 10. Appellant suggests

that based upon their prior attorney-client relationship and, further, because

Stockey wanted to secure additional work from Appellant’s son, it was

reasonable for him to believe that Stockey was representing him in the 2005

loan transaction. Id. at 13-14.

      Appellant is entitled to no relief.           First, the premise of Appellant’s

argument is flawed. Second, mindful of our standard of review, and viewing

the evidence in the light most favorable to Appellant, we conclude that he

cannot establish an implied attorney-client relationship.

      Following its conclusion that Appellant could not establish an express

contract   for   legal   services,   the    trial    court   examined   “whether   an

attorney/client relationship was consummated absent an express contract.”

Trial Court Opinion at 8 (emphasis added).              Thus, the trial court did not

require Appellant to produce evidence of a fee agreement. To the contrary,

as recognized by the trial court, an implied relationship may be found when

certain conditions are met.

      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.




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Kirschner v. K&L Gates LLP, 46 A.3d 737, 748-49 (Pa. Super. 2012)

(quoting Cost v. Cost, 677 A.2d 1250, 1254 (Pa. Super. 1996)); see also

Trial Court Opinion at 8.   Reviewing Appellant’s evidence, the trial court

concluded that although Appellant could establish the first two conditions,

the court discerned no evidence that Stockey agreed to provide Appellant

with legal assistance. See Trial Court Opinion at 8.

      We agree with the court’s conclusion.        Further, we note that a

plaintiff’s subjective belief that an attorney represents his interests is

insufficient.   See Cost, 677 A.2d at 1254.      Here, even accepting that

Appellant’s prior relationship with Stockey included legal representation,

there is no evidence that Stockey agreed, expressly or implicitly, to

represent Appellant in the 2005 loan transaction.      Notably, Stockey never

billed Appellant for any legal services, and Appellant never paid Stockey any

legal fees. Stockey was not present at the closing, and he never reviewed

the loan documents with Appellant prior to the closing. At most, Appellant’s

evidence demonstrates his subjective belief that Stockey represented him.

Such evidence is insufficient. Cost. Accordingly, we discern no error of law.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2016




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