J. S67014/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

SHEILA JANI,                            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :         No. 3322 EDA 2015
                                        :
STEVEN F. O’MEARA, ESQUIRE              :


          Appeal from the Judgment Entered November 30, 2015,
            in the Court of Common Pleas of Delaware County
                       Civil Division at No. 13-8800


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 18, 2016

      Sheila Jani (“Jani”), plaintiff in the court below, appeals from the

judgment entered November 30, 2015, in favor of defendant/appellee,

Steven F. O’Meara, Esq. (“O’Meara”), in this legal malpractice action. 1 We

affirm.




* Former Justice specially assigned to the Superior Court.
1
  Jani purports to appeal from the order of October 21, 2015, denying
post-trial motions. Ordinarily, an appeal properly lies from the entry of
judgment, not from the order denying post-trial motions. See generally,
Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 516
(Pa.Super. 1995). Nevertheless, a final judgment entered during pendency
of an appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull
Equip. and Supply Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied,
803 A.2d 735 (Pa. 2002). See also Pa.R.A.P. 905(a) (stating notice of
appeal filed after court’s determination but before entry of appealable order
shall be treated as filed after such entry and on the day of entry).
J. S67014/16


      The Honorable Spiros E. Angelos, sitting as finder-of-fact in this

non-jury trial, aptly summarized the history of this case as follows:

                   [Jani] filed a complaint with a single count for
            breach of contract against [O’Meara], her former
            attorney, on September 24, 2013. [Jani] testified
            that she hired [O’Meara] to represent her against
            two (2) tenants named on a lease for the property
            that she wanted evicted for lack of payment of rent.
            [Jani] testified that the lease for the property has
            two (2) signatures on it, but that neither she nor her
            real estate agent witnessed the execution of the
            lease and so she does not know who actually signed
            the lease.      [O’Meara] sent [Jani] a letter dated
            April 5, 2012 confirming his representation and
            stating that he intended to contact the defendants
            and file a landlord tenant action in the District Court
            for Glen Mills.      [Jani] sent [O’Meara] the lease
            documents [in response to] the April 5, 2012 letter.
            [Jani] paid [O’Meara] a flat fee, which included a one
            thousand dollar ($1,000.00) attorney fee and court
            costs of one hundred eighty-three dollars and
            fifty-six cents ($183.56).

                   [O’Meara] filed an action against one of the
            tenants, Perry Panaccio, and informed [Jani] by
            letter dated May 7, 2012 that he was not sure the
            other tenant listed on the lease, Joann Camero, was
            culpable after reviewing the lease documents and
            performing his own investigation into the matter.
            [O’Meara] testified credibly that [Jani] agreed not
            [to] proceed against Ms. Camaro [sic] following a
            discussion between the parties on May 15,
            2015 [sic]. [Jani] sent [O’Meara] an email the next
            day, May 16, 2012, stating that after thinking about
            the situation, if [O’Meara] wanted to continue to
            represent her, he had to include Ms. Camero as a
            defendant.     After receiving [Jani]’s email and
            speaking with [Jani]’s property manager that same
            day about Ms. Camero, [O’Meara] sent [Jani] a letter
            dated May 16, 2012 explaining that after a full
            investigation he did not see a viable claim against
            Ms. Camero and would not file an action against a


                                     -2-
J. S67014/16


            person he did not believe was culpable. [Jani] did
            not reply to [O’Meara]’s May 16, 2015 [sic] letter,
            but did subsequently contact [O’Meara] asking him
            to request a continuance of a hearing scheduled for
            May 22, 2015 [sic] for a family matter.

                   On June 1, 2012, [Jani] informed [O’Meara] by
            email that she no longer wished to have him
            represent her and demanded that he return the
            sums she had paid him. [O’Meara] sent [Jani] a
            billing statement showing that the time he spent on
            the matter exceeded the fee [Jani] paid for
            [O’Meara]’s services. [Jani] hired another attorney
            to represent her and paid him a flat fee of seven
            hundred fifty dollars ($750.00). [Jani] testified that
            she ultimately obtained a default judgment against
            Ms. Camero and Mr. Panaccio because neither
            showed up on the date of the hearing, but had not
            yet succeeded in collecting on any of the judgments.
            [Jani] testified that Ms. Camero filed for bankruptcy.

                   Following trial on February 12, 2015 and
            April 2, 2015, the parties were granted leave to file
            proposed findings of fact and conclusions of law. In
            her Proposed Findings of Fact and Conclusions of Law
            dated June 11, 2015, [Jani], for the first time, made
            a claim for breach of fiduciary duty.        Following
            review of the trial transcripts and the parties’
            proposed findings of fact and conclusions of law, the
            July 21, 2015 Decision was entered finding in favor
            of [O’Meara] and against [Jani] on her breach of
            contract claim. [Jani] filed a motion for post-trial
            relief and a motion to amend her complaint to add a
            breach of fiduciary duty claim on July 31, 2015,
            which were denied by an Order dated October 21,
            2015.       [Jani] filed her notice of appeal on
            October 27, 2015. Judgment was not entered until
            November 30, 2015.

Trial court opinion, 12/15/15 at 1-4 (citations to the transcripts omitted).

      On November 2, 2015, Jani was ordered to file a concise statement of

errors   complained    of   on   appeal    within   21    days   pursuant      to


                                     -3-
J. S67014/16


Pa.R.A.P. 1925(b), and she timely complied on November 20, 2015.

(Docket #24, 26.)         On December 15, 2015, the trial court filed a

Rule 1925(a) opinion.

      Jani has raised the following issues for this court’s review:

             1.      Did the trial court err by concluding that
                     O’Meara had not breached his contract with
                     Jani?

             2.      Did the trial court err by refusing to allow the
                     pleadings to be conformed to the evidence that
                     was presented at trial to include a claim for
                     breach of fiduciary duty, a claim for which
                     O’Meara had offered a defense anyway?

             3.      Did the trial court err by finding that O’Meara
                     had not breached his fiduciary duty to Jani?

Jani’s brief at 5.

             Our appellate role in cases arising from non-jury trial
             verdicts is to determine whether the findings of the
             trial court are supported by competent evidence and
             whether the trial court committed error in any
             application of the law. The findings of the trial judge
             in a non-jury case must be given the same weight
             and effect on appeal as the verdict of a jury, and the
             findings will not be disturbed on appeal unless
             predicated upon errors of law or unsupported by
             competent evidence in the record. Furthermore, our
             standard of review demands that we consider the
             evidence in a light most favorable to the verdict
             winner.

Baney v. Eoute, 784 A.2d 132, 135 (Pa.Super. 2001) (citation omitted).

             Additionally, “the trial court, as factfinder, is free to
             believe all, part or none of the evidence presented
             . . . .” Turney Media Fuel, Inc. v. Toll Bros., Inc.,
             725 A.2d 836, 841 (Pa.Super. 1999). “[T]herefore,
             assessments of credibility and conflicts in evidence


                                       -4-
J. S67014/16


           are for the trial court to resolve; this Court is not
           permitted to reexamine the weight and credibility
           determinations or substitute our judgment for that of
           the factfinder.” Id.

Sovereign Bank v. Valentino, 914 A.2d 415, 420 (Pa.Super. 2006).

     First, we address Jani’s breach of contract claim.    “Preliminarily, we

also recognize that ‘[a]n action for legal malpractice may be brought in

either contract or tort.’” Wachovia Bank v. Ferretti, 935 A.2d 565, 570

(Pa.Super. 2007), quoting Garcia v. Community Legal Servs. Corp., 524

A.2d 980, 982 (Pa.Super. 1987).

           Generally speaking, for a plaintiff to successfully
           maintain a cause of action for breach of contract
           requires that the plaintiff establish:         (1) the
           existence of a contract, including its essential terms,
           (2) a breach of a duty imposed by the contract and
           (3) resultant damages.         Corestates Bank v.
           Cutillo, 723 A.2d 1053, 1058 (Pa.Super. 1999). In
           the narrow realm of legal malpractice claims based
           on an alleged breach of a contract between an
           attorney and a client, the appellate courts of this
           Commonwealth have jurisprudentially established,
           and refined through time, the specific facts which a
           plaintiff is required to demonstrate in order to
           establish that a breach of a contractual duty on the
           part of the attorney has occurred.

Gorski v. Smith, 812 A.2d 683, 692 (Pa.Super. 2002), appeal denied, 856

A.2d 834 (Pa. 2004).

           [Bailey v. Tucker, 621 A.2d 108 (Pa. 1993),]
           established the proposition that every contract for
           legal services contains, as an implied term of the
           contract, a promise by the attorney to render legal
           services in accordance with the profession at large.
           Thus, when an attorney enters into a contract to
           provide legal services, there automatically arises a


                                    -5-
J. S67014/16


            contractual duty on the part of the attorney to
            render those legal services in a manner that
            comports with the profession at large. Hence, a
            breach of contract claim may properly be premised
            on an attorney’s failure to fulfill his or her contractual
            duty to provide the agreed upon legal services in a
            manner consistent with the profession at large.

Id. at 694.     “[I]f a plaintiff demonstrates by a preponderance of the

evidence that an attorney has breached his or her contractual duty to

provide legal service in a manner consistent with the profession at large,

then the plaintiff has successfully established a breach of contract claim

against the attorney.”    Id. at 697.    See also Ferretti, 935 A.2d at 571

(“With regard to a breach of contract claim, ‘an attorney who agrees for a

fee to represent a client is by implication agreeing to provide that client with

professional services consistent with those expected of the profession at

large.’”), quoting Bailey, 621 A.2d at 115.

      Jani testified that her realtor was responsible for renting out the

property and she was not present to witness the signing of the lease

agreement. (Notes of testimony, 2/12/15 at 38-39.) She did not know who

actually signed the lease. (Id. at 39.) O’Meara testified that he spoke with

Ms. Camero who advised him that she was a close friend of Panaccio’s and

had filled out a rental application on his behalf. (Id. at 101-102.) However,

she never moved into the house and adamantly denied signing any lease.




                                      -6-
J. S67014/16


(Id. at 103.)2 Ms. Camero told O’Meara that she never went to the realtor’s

office and never saw a copy of the lease until he showed it to her. (Id. at

105.)     O’Meara testified that Ms. Camero’s signatures on the rental

application and the lease agreement were completely different.      (Id.)   In

addition, O’Meara spoke with Panaccio’s attorney who informed him that he

has represented Panaccio in approximately 20 cases involving property

disputes, including foreclosures and landlord/tenant proceedings.     (Id. at

104.) O’Meara learned from Panaccio’s attorney “that this was the modus

oper[a]ndi of Mr. [Panaccio] where he would get a woman involved, get her

to sign off on these things and then, you know, he would ditch the

property.” (Id.)

        Furthermore, O’Meara testified that in his judgment, Jani knew that

Ms. Camero had not signed the lease agreement.        O’Meara testified that,

“she wanted like a deep pocket she could go after because she knew

Mr. [Panaccio] wasn’t going to pay.” (Id. at 115.) When O’Meara told Jani

that Ms. Camero never signed the lease, she did not dispute it:          “She

basically, in my mind, made an admission that she knew that Ms. Camaro

[sic] had not been the one that had signed that document, the lease

document.”     (Id. at 116.)   “And all I’m saying is that Ms. Jani never

contested whenever I confronted her with it, with the fact that the lease



2
  Plaintiff’s counsel did not timely object to this testimony as hearsay. (Id.
at 106.)


                                    -7-
J. S67014/16


signature was wrong, that Ms. Camaro [sic] didn’t live there, that

Mr. [Panaccio] was the only person that resided there at the premises.”

(Id.) O’Meara testified that he told Jani that someone had obviously faked

Ms. Camero’s signature on the lease document: “But I did tell her that it

was a fraud.   I think she knew about the fraud.     She told me repeatedly,

well I just needed somebody to sign off so I could go after them.” (Notes of

testimony, 4/2/15 at 37.)

      It is well established that an attorney is prohibited from bringing a

frivolous claim.   See Pa.R.P.C. 3.1 (“A lawyer shall not bring or defend a

proceeding, or assert or controvert an issue therein, unless there is a basis

in law and fact for doing so that is not frivolous, which includes a good faith

argument for an extension, modification or reversal of existing law.”).     In

addition, an attorney may withdraw from representation if his client insists

on taking action which is fraudulent or with which the attorney has a

fundamental disagreement.        See Pa.R.P.C. 1.16(b) (“[A] lawyer may

withdraw from representing a client if: (2) the client persists in a course of

action involving the lawyer’s services that the lawyer reasonably believes is

criminal or fraudulent; [or] (4) the client insists upon taking action that the

lawyer considers repugnant or with which the lawyer has a fundamental

disagreement[.]”).

      Here,    after   investigation,   O’Meara   reasonably   believed   that

Ms. Camero did not sign the lease agreement, never moved into the



                                        -8-
J. S67014/16


premises, and was not liable.      Therefore, he had a professional obligation

not to sue Ms. Camero, no matter what his client wanted.

        Moreover, even assuming the April 5, 2012 letter3 stating O’Meara’s

intention to file suit against the “defendants” (plural) constituted a binding

contract to sue both Panaccio and Ms. Camero, Jani subsequently agreed to

proceed only against Panaccio. O’Meara testified that on May 15, 2012, he

spoke with Jani regarding his concerns:

              I spoke to her and her parents, and Mr. Cerillo[ 4]
              was there, present. And I advised her the situation
              was going on, that we had been back there for an
              hour. And I said it’s clear to me that Ms. Camaro
              [sic] didn’t – based on what she said, what she’s
              represented, the evidence that I’ve looked at, and I
              just didn’t have anything other to prove, to me, that
              Ms. Camaro [sic] had done anything or had signed
              this. Ms. Jani, again, agreed with me and agreed –
              further agreed that we were just going to go after
              Mr. [Panaccio]. And at that point my – I believed my
              contract had been amended, our agreement had
              been amended so that we’re just going to go after
              Mr. [Panaccio] at this point. There was a meeting of
              the minds. I discussed it fully with her. I discussed
              it in front of her building manager. He agreed. She
              agreed.

Notes of testimony, 2/12/15 at 108-109.

              I asked her permission not to include her and she
              said yes, you don’t have to include her. She agreed
              to it on May 15 while I sat there with her, her

3
  The April 5, 2012 letter stated, in relevant part, “It is my intention to file in
the Glen Mills District Court for landlord tenant dispute. Additionally, I will
be contacting defendants immediately by mail to advise of my
representation.” (Plaintiff’s Exhibit 2.)
4
    Joseph Cerillo was Jani’s property manager.


                                       -9-
J. S67014/16


            parents, I believe it was her parents. I’m not getting
            any feedback so I’m assuming that was her parents.
            We talked about it and she agreed not to go forward
            with that.

Notes of testimony, 4/2/15 at 15. The trial court found O’Meara’s testimony

to be credible and noted that even after O’Meara’s May 16, 2012 letter

reiterating that in his opinion, Ms. Camero was not a proper defendant,

Jani’s only response was to ask for a continuance so she could attend a

family function. (Trial court opinion, 12/15/15 at 7.) Therefore, the record

supports the trial court’s determination that the parties agreed to modify the

terms of the contract.

      Moreover, Jani failed to plead and prove any damages. See Ferretti,

935 A.2d at 571 (“when it is alleged that an attorney has breached his

professional obligations to his client, an essential element of the cause of

action, whether the action be denominated in assumpsit or trespass, is proof

of actual loss”) (citations omitted); see also Nelson v. Heslin, 806 A.2d

873, 876 (Pa.Super. 2002), appeal denied, 831 A.2d 600 (Pa. 2003) (“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”) (citation omitted).




                                    - 10 -
J. S67014/16


      As described above, Jani eventually obtained a default judgment

against Ms. Camero.5       While she alleged that she had to pay another

attorney $750 to represent her, she never provided any supporting

documentation that such fees were billed or paid.            (Trial court opinion,

12/15/15 at 9.) O’Meara submitted a billing statement demonstrating that

the time he spent on the matter, when billed at an hourly rate, actually

exceeded the flat fee he initially charged Jani. (Id. at 8; notes of testimony,

2/12/15   at   122.)      See    Pa.R.P.C.     1.16(d)    (“Upon   termination   of

representation, a      lawyer   shall take     steps to   the extent reasonably

practicable to protect a client’s interests, such as . . . refunding any advance

payment of fee or expense that has not been earned or incurred.”).

Therefore, we agree with the trial court that Jani failed to establish an actual

loss resulting from O’Meara’s alleged breach of contract that would entitle

her to collect damages.

      Turning to the breach of a fiduciary duty claim, Jani first raised it in

her proposed findings of fact and conclusions of law filed after trial on

June 11, 2015. (Trial court opinion, 12/15/15 at 10.) She did not move to

amend her complaint until after the July 21, 2015 decision was filed.

“Amendments to pleadings are freely allowed under the Pennsylvania Rules


5
  Ms. Camero filed for bankruptcy and Jani testified that she has been unable
to collect the judgment. (Notes of testimony, 2/12/15 at 84.) In fact, this
was another reason O’Meara advised Jani not to include Ms. Camero as a
defendant, that she had hired a bankruptcy lawyer and was judgment proof.
(Id. at 120.)


                                      - 11 -
J. S67014/16


of Civil Procedure and it is within the trial court’s discretion whether to grant

or deny permission to amend. An amendment, however, may not introduce

a new cause of action after the applicable statute of limitations has run.”

Beckner v. Copeland Corp., 785 A.2d 1003, 1005 (Pa.Super. 2001),

appeal denied, 805 A.2d 518 (Pa. 2002), citing Pa.R.C.P. 1033; Trude v.

Martin, 660 A.2d 626, 635 (Pa.Super. 1995) (quotation marks omitted).

      Here, Jani sought to amend her complaint to add a new cause of

action, breach of a fiduciary duty, after the two-year statute of limitations

period had expired. 42 Pa.C.S.A. § 5524. In her email dated June 1, 2012,

terminating O’Meara’s representation, Jani complained that, “I thought I had

hired you to represent my interest not Ms[.] Comero’s [sic] interest.        But

from your letter dated 5/16/12 it is clear that you are representing Ms[.]

Comero’s [sic] interest.”   (Plaintiff’s Exhibit 6.)   Despite these allegations,

Jani did not pursue a claim for breach of a fiduciary duty until after trial.

The trial court did not abuse its discretion in denying Jani’s motion to amend

the pleadings.

      At any rate, Jani failed to prove any breach of a fiduciary duty.

            Under Pennsylvania law, the duty of an agent to his
            principal is one of loyalty in all matters affecting the
            subject of his agency, and the agent must act with
            the utmost good faith in the furtherance and
            advancements of the interests of his principal. This
            duty is the same as that of fiduciary which has been
            described as the duty to act for the benefit of
            another as to matters within the scope of the
            relation.



                                     - 12 -
J. S67014/16


Garbish v. Malvern Fed. Sav. & Loan Assn., 517 A.2d 547, 553-554

(Pa.Super. 1986), appeal denied, 533 A.2d 712 (Pa. 1987) (citations and

quotation marks omitted).

      Jani argues that O’Meara had an undisclosed relationship with

Ms. Camero and appeared to be more concerned with protecting Ms. Camero

than representing Jani’s interests. (Jani’s brief at 18-19.) O’Meara testified

that he had met Ms. Camero socially 20 years earlier and knew she worked

in Domestic Relations at the courthouse but did not have a relationship with

her. (Notes of testimony, 4/2/15 at 49-50.) The trial court found that Jani

failed to establish that the mere fact O’Meara was acquainted with

Ms. Camero created a conflict of interest or that O’Meara failed to act in

Jani’s best interests. (Trial court opinion, 12/15/15 at 13.) It is clear from

the testimony that O’Meara refused to file suit against Ms. Camero because

he did not believe she was liable, not because of any prior relationship.

Furthermore, any breach of fiduciary duty claim would likewise fail because

Jani failed to prove actual damages.

      The trial court appropriately summed up this case, which never should

have seen the light of day in a courtroom, as follows:

                  In this case, what was perceived to be a simple
            landlord tenant matter became unforeseeably
            complicated, which led to a disagreement between
            an attorney and his client. Since the parties were
            unable to resolve their disagreement, the client was
            forced to seek alternative representation.      While
            unfortunate, these circumstances do occur, are
            contemplated by the law, and do not necessarily


                                    - 13 -
J. S67014/16


            mean any party breached contractual obligations or
            acted in bad faith or without legal justification.
            [Jani] failed to establish that [O’Meara] breached his
            contractual obligations or his fiduciary obligations.
            [Jani] also failed to establish that she suffered any
            actual loss because of [O’Meara]’s conduct.

Trial court opinion, 12/15/15 at 15. We agree and can discern no basis for

disturbing the trial court’s verdict.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016




                                        - 14 -
