J. A20010/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

PAUL J. ABELN,                        :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                        Appellant     :
                                      :
                   v.                 :
                                      :
MARY J.B. EIDELMAN, ESQUIRE AND       :         No. 1978 EDA 2013
RICHARD HUNTINGTON PEPPER,            :
ESQUIRE                               :


                    Appeal from the Order, June 26, 2013,
               in the Court of Common Pleas of Lehigh County
                      Civil Division at No. 2009-C-6037



PAUL J. ABELN,                        :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                        Appellant     :
                                      :
                   v.                 :
                                      :
MARY J.B. EIDELMAN, ESQUIRE AND       :         No. 2573 EDA 2013
RICHARD HUNTINGTON PEPPER,            :
ESQUIRE                               :


          Appeal from the Judgment Entered September 6, 2013,
             in the Court of Common Pleas of Lehigh County
                    Civil Division at No. 2009-C-6037


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED JANUARY 23, 2015

     In these consolidated appeals, appellant challenges the June 26, 2013

order which entered summary judgment against him in his legal malpractice
J. A20010/14


actions against two lawyers who represented him in his divorce and child

custody proceedings.1 According to appellant, the negligent representation

of these two attorneys resulted in diminished custody of his child.     We

affirm.

      Appellant raises the following issues on appeal:

            A.    Controlling precedents of both this Court and
                  the Pennsylvania Supreme Court leave no
                  doubt that the Trial Court erred in granting
                  summary judgment to Eidelman on grounds
                  that Abeln’s malpractice claims were legally
                  barred by his acceptance of a brokered child
                  custody settlement.

            B.    Whether, at the time that Abeln agreed to the
                  November 2007 custody settlement, Eidelman
                  was still his attorney is of absolutely no
                  consequence to the viability of his legal
                  malpractice claims against her.

            C.    The Trial Court erred in concluding that “there
                  was no evidence [in the record] * * * of
                  pressure or of anything improper by Appellee
                  Eidelman to show that [Abeln] was forced or
                  tricked into accepting the custody arrangement
                  in the November 19 [2007] agreed [custody]
                  order.”

            D.    The Trial Court erred in concluding, in reliance
                  upon a nonprecedential Supreme Court
                  decision and dictum in a case of this Court,
                  that, because Abeln followed Pepper’s advice,

1
  The other order under appeal is a September 6, 2013 order granting
Attorney Pepper’s counterclaim for counsel fees. A prior appeal of the
summary judgment in favor of Attorney Eidelman was quashed by this court
on April 10, 2013, as interlocutory, apparently because this counterclaim
was still pending. The September 6, 2013 order concluded all actions
against all parties and has rendered the prior June 26, 2013 order final and
now appealable.


                                    -2-
J. A20010/14


                   to submit to a negotiated rather than
                   adjudicated determination of his child custody
                   rights as part of a broader litigation strategy,
                   Pepper’s exercise of professional judgment
                   legally precludes Abeln’s legal malpractice
                   claims against him.

             E.    Abeln’s statements to the Trial Court, to
                   Pepper, or for discussion with his treating
                   psychologist, as to the reasons for his
                   acceptance of the adverse, January 22, 2008
                   custody stipulation, cannot be deemed binding
                   judicial admissions that permit the Trial Court
                   to conclude, as it did, that Abeln’s actions had
                   been voluntary rather than a product of
                   Pepper’s     negligence,     because      Abeln’s
                   mitigating explanations for these statements,
                   in his deposition testimony, create an issue of
                   fact that only a jury can properly decide.

Appellant’s brief at i.2

      We find no error with the trial court’s holding. After a thorough review

of the record, the briefs of the parties, the applicable law, and the

well-reasoned opinions of the trial court, it is our determination that there is

no merit to the questions raised on appeal.        The trial court’s thorough,

18-page opinion, filed on January 25, 2012, as well as the two separate

Rule 1925 opinions filed September 19, 2013, and November 8, 2013,

respectively, comprehensively discuss and properly dispose of the questions




2
  These issues are taken from the table of contents of appellant’s brief. The
brief contains a separate page listing the questions presented, but the
argument section of the brief follows the issues presented in the table of
contents.   Consequently, we will regard the table of contents as the
statement of issues.


                                      -3-
J. A20010/14


presented.3     We will adopt those opinions as our own and affirm on that

basis with the following additional analysis.

        In Issues A and D, appellant questions the continuing viability of our

supreme court’s decision in Muhammad v. Strassburger, McKenna,

Messer, Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991), cert. denied,

502 U.S. 867 (1991), which holds that a client cannot maintain a legal

malpractice action against an attorney where the client agreed to the

settlement of his or her claim unless the settlement agreement was

fraudulently induced.4 Appellant argues that Muhammad “has virtually no

remaining precedential value,”5 because the supreme court subsequently

restricted the holding in that case to its unique facts, citing McMahon v.

Shea, 688 A.2d 1179 (Pa. 1997).

        Appellant has greatly exaggerated the effect of the McMahon

decision. While the McMahon majority purported to restrict Muhammad to

its facts, we note that the McMahon “majority” was not even a plurality

decision.      Rather, McMahon was the product of an equally divided,

six-member supreme court. In point of fact, the three-member “minority”


3
    Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A.
4
  Issue A raises this claim as to Attorney Eidelman while Issue D raises it as
to Attorney Pepper. We note that Issue A is waived as this matter was not
directly raised or fairly suggested in appellant’s statement of matters
complained of on appeal pertaining to Attorney Eidelman. See Pa.R.A.P.,
Rule 1925(b)(4)(vii).
5
    Appellant’s brief at 27.


                                      -4-
J. A20010/14


concurred in the result, but specifically objected to limiting Muhammad to

its facts. McMahon, 688 A.2d at 1182-1183. Consequently, McMahon did

not serve to limit Muhammad to its facts, and Muhammad remains as

controlling precedent until a true majority of the supreme court rules

otherwise. The trial court correctly found that appellant’s malpractice action

against Attorney Pepper was barred by Muhammad because the Complaint

failed to allege fraud in the inducement of the settlement agreement to

which appellant consented.

      In Issue B, appellant argues that it is of no consequence whether

Attorney   Eidelman     was   still   representing   him    at   the   time   of   the

November 19, 2007 custody hearing.            We agree with the trial court that

appellant’s abrupt firing of Attorney Eidelman on November 16, 2007,

insulates her from a claim of legal malpractice predicated upon the consent

agreement that issued from the November 19, 2007 hearing.

      Much     of   appellant’s   complaint    against     Attorney    Eidelman    for

malpractice stems from a negative psychological evaluation of appellant

prepared by Dr. Phillip Nastasee. Appellant argues that Attorney Eidelman

was negligent in failing to meet with him and prepare him for Dr. Nastasee’s

examination, in failing to seek to obtain Dr. Nastasee’s work papers, and in

failing to obtain an independent psychology expert to counter Dr. Nastasee’s

report.    (Appellant’s brief at 32.)      First, Attorney Eidelman cannot be

deemed negligent for failing to help appellant prepare for a psychological



                                        -5-
J. A20010/14


examination.     While Attorney Eidelman may be considered a legal expert,

she has no training in psychology and had no expertise to impart to

appellant for a psychological examination. Second, as to the other alleged

failings as to the Nastasee report, we remind appellant that he and

Attorney Eidelman did not receive the Nastasee report until November 14,

2007.      When appellant fired Attorney Eidelman only two days later, he

rendered it impossible for Attorney Eidelman to take any further remedial

actions.

        Appellant also asserts that Attorney Eidelman was negligent in

preparing, but not filing proposed findings of fact and conclusions of law and

in failing to request a continuance of the November 19, 2007 custody

hearing.     Again, appellant fired Attorney Eidelman three days before the

custody hearing, thereby preventing her from taking the aforementioned

actions.       Moreover,   the   trial   court   states      in    its   opinion   that

Attorney Eidelman was excused from further representation shortly after the

November 19, 2007 hearing commenced.             (Trial court opinion, 1/25/12 at

4.) The court also indicates that both the court and appellant’s wife were

willing to continue the hearing until January 22, 2008, so that appellant

could secure the services of a new lawyer.           (Id.)        Nevertheless, acting

pro se, appellant suggested the new custody arrangement of which he now

complains. (Id.) This is simply not Attorney Eidelman’s fault.




                                         -6-
J. A20010/14


      Appellant also cites other examples of Attorney Eidelman’s negligence

such as failing to prepare witnesses he had provided her, and taking a family

vacation shortly before the custody hearing.       Again, appellant’s firing of

Attorney Eidelman prevented her from preparing any witnesses. As the trial

court indicates in its opinion, the eleventh hour release of the Nastasee

report essentially mandated a continuance of the November 19, 2007

custody hearing. (Trial court opinion, 1/25/12 at 9.) Had appellant not fired

Attorney Eidelman, presumably the case would have been continued and she

could have prepared witnesses for trial. This would also have dissipated any

failure to prepare attributable to taking a family vacation.

      Finally, we distinguish one of the cases appellant cites in support,

White v. Kreithen, 644 A.2d 1262 (Pa.Super. 1994), appeal denied, 652

A.2d 1324 (Pa. 1994).       In White, the appellant fired his lawyers in a

medical malpractice action because he felt they were not adequately

preparing for trial.    Appellant alleged in his ensuing legal malpractice

complaint that the attorneys subsequently interfered with appellant’s ability

to secure new counsel by refusing to transfer appellant’s file and by

demanding unreasonable referral fees.        Consequently, appellant had no

counsel prior to trial. At a conference before the Calendar Judge, appellant

was forced to accept an unfavorable settlement rather than immediately

proceeding to trial without counsel.




                                       -7-
J. A20010/14


        The focus of the White decision was actually its finding that

Muhammad did not apply to bar appellant’s malpractice action because the

settlement agreement was not negotiated by appellant’s attorneys. We are

not finding that Muhammad applies to bar the malpractice action against

Attorney Eidelman.6      However, to the extent that White suggests that a

legal malpractice action may be maintained even where the attorney has

been fired and the client subsequently accepts an unfavorable settlement,

we note a critical difference with the instant situation. There is no allegation

or indication that Attorney Eidelman interfered in any way with appellant’s

ability to secure new counsel. Moreover, as noted, the trial court stated in

its opinion that it was aware that appellant was in the process of obtaining

the services of Attorney Pepper and was willing to continue the hearing to

afford him the ability to retain Attorney Pepper. Appellant’s decision to enter

the new custody settlement at that time without counsel was purely of his

own volition and cannot be attributed to any negligence or intentional

interference by Attorney Eidelman.

        Accordingly, we will affirm the orders entering summary judgment

against     appellant   and   entering   judgment   against   appellant   as   to

Attorney Pepper’s counterclaim.

        Order of June 26, 2013 affirmed.

        Judgment of September 6, 2013 affirmed.


6
    As noted earlier, that issue was waived.


                                         -8-
J. A20010/14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2015




                          -9-
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                                                ADD28




IN THE COURT Oli COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

                                       CIVIL         DIVlSIO~


PAUL J. ABELN.

               Plamtiff                                          No. 2009-C.6037

       v.                                                        (Superior COlm No. 19711 EOA 2013)

MARY J. B. ElDELMAN, ESQUIRE,and
RICHARD I-fUl.:TINGTON PEPPER,
ESQUIRE ,

               Defendants




Appearances:
                                          ... ...   . .. . .
                                                     ...   ...




       Richl.lrd L. Caplan, Esquire.
                on behalf o f Pl ainli rr/Appellanl, Paul J . Abeln

       Pau l C. Troy. Esquire,
               on behalfof DefendantlAppcllee, Mary J, B. Eidelman, Esquire

                                          ..............
WILLI AM E. FORD, JUDGE

                               Pa .R.A.P. J925(a} 0 P I N' JO N

       This is a Jcgul mulpracticecase in which Plaintiff/Appellant, Paul J. Abeln, brought

suit against Defendant/Appellee, Auomey Mary J. 8. Eidehnan, and Attorney Richard

Huntington Pepper who is not a party 10 this Ilppes!. I granted de fense motio ns for

summary j udgment d ismi ssing the claims against bOlh attorney defendants AppcJlant

Abeln flied the present appeal fro m my granting 1he motion for summary Judgment in

favor of Appell ee Eidelman.
                                                                                         Circulated 12/30/2014 11:51 AM

                                                ADD29




         The basis   fOT   this legal malpractice action is cll<;(ody case, Paul J. Abeln v, lIeidl C.

Noll, Lehigh County number 2007-FC·0427 ("the custody case"). In Ihis malpractice suit,

Appellant claims that each of the attorney defendants by their consecutive- representation in

the custody case was responsible for climinishing through court orders his custody rights 10

Paul Christopher Abeln, the child lhat he has with lleidi C. Noll ("Mother").

         Appellant Abeln presents several Iu-gllments in this appeal in support of his position

that I mistakenly enlered summary judgJTlent against him in favor of /\ppellee Eidehnan.

Each of his contentions lacks merit.


                                       Pertinent Procedural History

         This malpractice suit was brought on November 13, 2009. After discovery, each

attorney defendant tiled a motion for swnntary judgment on September 1,2011. I granted

the Illotions for summary judgment in favor of the attorney dcfimdants and against

Appellant on January 25, 2012. The judgments were not appealable because Attorney

Pepper, who is not involved in this appeal! had an wlresolved counterclaim for counsel

fees filed unde.r this same case number. (On September 6, 2013. judgment was entered in

favor   or Attorney Pepper and against Appellant on the counterclaim.          Appellant appealed

that j udgment on the coumerclaim and the summary judgment in favor of Attorney Pt':pper

on September 10,2013, which appeal has not yet been assigned a Superior Court docket

number.)

         On November 6, 20 12, I entered an order granti.ng Appellee Eidelman's

uncontested motion to sever the claim brought against her irom the claim brought against

Anomey Pepper.



                                                   2
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                                           ADD30




       On December 5, 2012. Appellallt Abeln med a notice of appeal to the Superior

Court ofPenl1sylvania " from the Order entered in this matter on the 25 th day of January,

2012, granting summury Judgment in [livor orlhe defendant, Mary 1. B. Eidehnan." This

appeal received the Superior Coun docket number 3368 EOA 201 2.

       Because oftbe November 6, 20 12. se.vering of the claims brought against Appellee

Eidelman from the claims brought 3.gainst ALtomey Pepper, it appears thaI the appeal

docketed at 3368 EDA 20 12 \vas a timely chal1enge to the summary judgment granted in

favor of Appellee Eidclnum on January 25, 2012. Any appeal nfthe summary judgment

before tbe severance order would have been interlocutory

       Unfortunately, in my Memorandum to thc $ upcrior Co urt riled on January

22,2013. ( gave the S uperitlr Court incomplete information nbout the record in the

lower court to that point. I f"iled til mention and then address the significance of the

severUDce order of November 6, 2012, Perhaps guided by my Memorandum, the

Superior Court quashed this appeal "sua t.poil/t?    HS   interlocutory" by order da tcd

April 10, 20J3. I now believe t1ll1t Appellant was entitled to a suhstantive review by

the Superior Co urt of the   ~ umm ary   judgment order in his c;lrlicl' appeal. To correct

this error, which Jpl'obnbly am n:sponsible!ol' creating, I respectfully suggest tlllIt

tliere should be.a subs lanllve review by tbe Superior C(l UI·t in tbe present

proceedings.

       Unnecessary evcnts in the {rial court followed the dismissal as mterlocutory of

Appellant's earl ier appeal . A redundant judgment was taken by Appellee Eidelnmn on

June 7, 2013 . It was redundant because lhc summary judgment entered on January 25,

2012. was a fi nal o rder as to Appellee Eidelman after entry of the November 6, 2012,


                                               3
                                                                                 Circulated 12/30/2014 11:51 AM

                                           ADD31




severance order. See .f'cidJer v. Morris COl/pli/lg Co., 784 A.2d 8 12 ( Pa.Super. 2001).

'nlcre was au Wlsuccessful effort to sci aside the redundant judgment which ended with an

order on June 28. 2013. Appellant then filed the current notice ofappcaJ o n July 5, 201 3,

from the order grn.llling summary judgment for Appellee Eidt!lman . This Cllrrent appeal

received the present Superior Coun docket number 1978 EDA 201 3.

       O n July 24, 20 13, in response to an earlier order, Appellant filed a statement under

Pa.R.A.P . 1925(b) ("Concise Statement"). In his Concise Statement, AppelJant alleges

five errors. They cover the same subjeclS that were raised in the December 5, 2012, notice

of appeal. [now address each alll!galioll in tbe Concise Statement.


                            The Granting of Summary Judgment

       The first claim of error is the esscnct: of this appeal. It reads:

                       Did the trial court err in granting summary
              judgmcllt to Eidclman (Appellee) upon Abeln 's (Appe llant)
              legnl malpractice and breach of contract claims, on grounds
              that (i) Eidelman no longer represented Abe ln, when Abeln
              nccepted !l reduced share of physical custody of his o nly
              son, and (ii) Abeln, as a pro se litigant, approved an
              unfavorable, negoliated child custody agreement, when
              th~rc is ample evidencc in the record that this interim
              settlement agreement was forced upon Abeln by
              Eidelman's professional negligence, while still his
              attomey?

       According to Appeltanl, it was improper for the court to grant SUmmary judgment

for Appellee Ei delman on the legal malpractice claim against her because she was

responsible for dim.irushing Appellant's custody time with rus child througb the agreed

order of November 19,2007 . Summary judgment was properly granted in favor of

Appellee Eidelman for two reasons. rirsl, as the rec.ord establishes, Appellee Eidelman




                                               4
                                                                                  Circulated 12/30/2014 11:51 AM

                                          ADD32




had been dismissed as Appellant's counsel before the AppcUam. acting pro se. reached the

November 19, 2007, agreement with Mother. Second, the record established that the

November 19, 2007, agreed order was entered knowingly and voluntarily by Appellant.

There was nothing in the record 10 establish that "this interim settlement agreement was

forced upon (Appellant) Abeln by (Appellee) Eidelman's profess ional negligence, while

she was still Ius attorney" despite Appellant'S contention thai il was forced on him .

       Appellant hired Appellee Eidelman as his attorney on Murch 29, 2007, to pursue a

diVorce from Mother and to obtain physical and legal custody of the child, Paul

Christopher. Appellee Eidelmun filed the custody case on March 30, 2007.

       On March 24, 2007, Mother secured nn order from a magisterial district judge

against Appellant under Pennsy lvania's Protection from Abuse Act (PfA) at an ex parfe

he3ring. Under the terms oflhat order, Appellant was evicted rrom the manlru residence in

Lehigh County. -nlC order provided that it would expire at the end of the next business day

unless further action was taken by Mother. Mother pennitted the ex parte order to expire.

However, after Mother secured the ex parle order. without notice to Appel/ant, she took

the child. Paul Christopher, \l.-1lh her to Arizona where she had lived before Ihe marriage.

       On April 5,2007, Appellee Eidelman filed a petition for emergency relief under the

custody case number on behalf of Appellant 1n the petition, Appellant sought the

immediate return of Paul Christopher to I'ellnsyivania. Appellant also sought "temporary

pdmary physic~1 custody" or Paul Christopher.

       On the same date. April 5. 2007, ata hearing in Lehigh County Court with

Appellee Eidelman and both parents present. the petition for emergency relier was resolved

by agreement. Under the agreement, Appellant was made the primary physical custodian


                                              5
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                                          ADD33




of Paul Christopber. Mother was given visitation with the cbild for a minimum of three

hours pcr day. The panies agreed that these proviSions would be temporary. Additionally,

Mother indicated she would withdraw a protection from abuse case she had filed in

Arizona.

       On ApdJ 24, 2007, Mother filed a petition in the custody C3se for shared legal and

physical custody of Paul Christopher. A hearing was held on May 2, 2007. Appellee

Eidelman represented Appellant at the May 2 hearing. Under the agreed order entered that

day, the parents would share lega l custody of Paul Christopher. Appellant relllllined the

primary physical custod ian of the child and Mother received increased partial physical

custody rights. The parties agreed that a psychologist would do an evaluation of the

panies. A custody trial was scheduled for November 19,2007.

       Accordi ng to the complaint in Ule presenllegal malpractice complaint, Appellant

and Appellee Eidelman did not receive a copy of the psychological evaluat.ion until

November 14. 2007 . On "November 16, 2007. Abeln (Appellant) fired Eidelman

(Appellee) as his attorney for incompe1ence, via e-mail, and asked her to request a

continuance of the trial and to contact his new attorney, Pepper, prior to November 19."

(paragraph 24 , Complaint.)

       TIle Honorablt: Maria L. Dantas convened court in the custody ca.se on November

19, 2007. Appellee Eidel man presented a petition to withdraw as counsel for Appellant

based on the November 16 e-mail Appellant sent her. Judge Dantos granted that petition.

Then, by agreement, the trial was continued to January 22. 2008, so Appellant could have

the opportunity to secure the services of Pepper. Also on November 19, 2007, after

Appellee Eidelman was excused from further representation, Appellant, acting pro se,


                                             6
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                                            ADD34




agreed in a fuIJ record colloquy with Judge Dantos to another interim custody arrangemenl

wht:reby he and Mother would share legal and physical custody of Paul Chnstopher.

          II would have been improper for Appellee to give her input about the wisdom of the

Novembtr 19 agreed order or to provide advice for Appellant as the agreement was being

stated. Appellnnt had not yet secured the services of hi s next attorney so he was on his

0\\011-   by his choice - when the agreement was reached. The record of that hearing

demonstrotes a complete setting forth of the agreement and Appellant's acceptance of it

          As a general rule, a litigant is nOI permitted to agree to a settlemem and

s ubsequently bring- a malpractice su it against his attorney based on the terms of the

settlement. Muh(llllmad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346, 1348 (1991).

The Superior Court bas held that MuJwmmadprecJucJes a malpractice action where (I

settling client merely alleges that settlement resulted from "a deficiency   In   the lawyer's

exercise of his or her professional judgment." McMahon v. Shea, 441 Pa.Super. 304, 313,

657 A.2d 938,942 (19')5). Conversel)', a malpractice suit stemming from a seUlement

m~y    proceed where a litigant shows thai the settlement resulted from fraud or from the

attorney's failwe to correclly explain legal principles or the consequences of the settlement

to   the litigant. Jd

          From the record developed through discovery, there was no evidence of fraud or of

pressure or of anything improper by Appellee Eidelman to show that Appellant wus forced

Or tricked into liccepting lhe custody arrangement in the November 19 agreed order or the

two earlier agreed orders. Further, there was no evidence of inaccurate advice or the

creation of unattainable expectations planted by Appellee Eidelman. Thus, under

Afuhammad and its progeny, Appellant was properly precluded from proceeding with the


                                                7
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                                          ADD35




malpractice case against Appellee Eidelman.

       1be second allegation of error in the Concise Statement reads:

                        Did the trial CQur1 err i ll granting summary
               judgment 10 Eidelrnan on grounds that Abeln's request for
               damages, attributable to his forced rel inquishment of some
                physical cu stody of his child due to Eidelman's
                professional negligence, was tanlamollDt to a legally
                foreclosed drum for emotional distress damages, where the
               recoverability of such damages is a legal issue of first
               impression in Pennsylvania, and to summarily preclude
               such damages would vitiate meaningful claims for legal
               maJpractice in most, ifnot all, child custody cases?

       One of the arg uments made by Appellee Eidelman in support of her mOlion for

sumll1..8ry judgment was that Appellant Abeln could not prove dama~e s. However. the

dam~e   issue was nOI a ba... is for the entry of summary judgment

       Appellant's third allegation of error in the Concise Statement asks:

                        Did the trial court err in gnuuing Eidelman's motion
               to sever her case from thai of COM de rend ant ... without
               making "an express detennination that an immediate appeal
               would facilitate resolution of the entire case," where the
               trial court's termination of Abeln's case against Eidelman
               alone, while Pepper's counterclaim against Abeln had yd
               to be adjudicated, violated PaR.AP. 34 I (c) and was
               entered without affording Abeln an adequate opportunity to
               be heArd in opposition?

       Appellant is incorrec t in his assertion that the severance order should be analyzed

under Pa.RA.P. 341(c). Rather, in rulin&on the motion, I properly appJieJ Pa.R.C .P.

2 13(b) which Slates:

                       The court, in furtherance of convenience or to avoid
               prejudice, may , on its own motion oron motion orallY
               party, order a sepamte trial of any cause of action, claim, or
               cOWlterclaim, set-off, Or cross 5uit, or of any separate issue,
                                              M




               or of any number of causes of action, claims,
               cOlUuerciaims, set~oITs, cross-suits, or issues.


                                               8
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                                              ADD36




        Appellee Eidelm.m sought the severance of the claims against her from the claims

that Appellant brought against Anomey Pepper for several reasons. With the granting of

summary judgment on January 25, 2012, in favor of Appellee Eidelman, there were no

further claims by Appellant pending against her in lhe trial court so she wanted the case 10

end. It could not end v.lithout severance from the Pepper claims because Pepper's

counterclaim was still pending. Appellee Eidelman also sought the severance because of

concerns with her malpractice insurance carrier about an active Jaw suit agwnst her. Third.

sbe wanted to pursue n Dragol1f!lli action against Appellant Abeln. With these reasons in

mind, Appellee Eidelmnn was able to demonstrate that the motion should be gntoted in the

interesl of convenience and avoidance of prejudice to her. She met the standard for

severance of claims. The record shows that AppeJtee Eideiman            gav~   notice of the

presentation of her severance motion. that AppeUaol did not appear to oppose it and tbar

there was no la ter challenge to the   SeVer3111.:e   order through a motion for reconsideration.

       The fourth contention of error reads: "Did the trial abuse its discretion in denying

Abeln's motion ;n limine ro exclude at trial evidence of his mental heallh treatment, during

the pendency of the child custody case?" The motion in /imine was filed on October 12,

2011. It became moot when summary judgment WItS entered for Appe ll ee. {fsummary

judgment was properly emcred for Appellee, there would be no trial so there was no need

for a molion in limine.

       The final issue posed by Appellant Abeln is: "Did the trial court err in denying

Abeln's molion to vacate lhe judgment entered in favor of Eidelman Gudgrnent entered on

June 7, 2013). where the severance ofber case from thc.t of her co-dcfcndant Pepper had



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                                          ADD37




been erroneously or improvidently granted,!" As I have said, the judb'lncllt that Appellee

Eidelman took. on JUlle 7, 20 13, was utmecessary because the summary judgment entered

on January 25.2012, became a final order after entry of the November 6, 2012, severance

order. Therefore, the mOlion to vacate the redundant judgmcm probably should have been

granted. The severing of the claims against the two aUorneys was proper for ule reasons

thaI [ have staled . The matters raised by Appellant under this last claimed error do not

alter the fact tlml the Superior Court should now examine whether I properly entered

summary judgment for Appell ee Eidehnan, For the reasons stated above, it is respectfull y

submitted that tbe entry of summary judgment was proper and that this appeal should

therefore bedc lli ed.




September 18, 2013
                                             ~~,  LIAM E. FORD, JUOGE




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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

                                          CIVIL DIVISION

PAUL 1. ABELN,

                Plaintiff                                  No.2009-C-6037

                                                          (SuperiorCoUl1 No. 2573 EDA 2013)

MARY 1. B. ElDELMAN, ESQUIRE, and
RJCHARD HUNTINGTON PEPPER,
ESQUIRE,

                Defendants

                                                                                             -'
                                                                                             =
                                            ..............                                   '"""  CP-
                                                                                                    -n
Appearances:
                                                                                             0
                                                                                                 ,
                                                                                              ""eo r-    -rn
       Rkhard L. eaplall. Esquire,                                                               ."

                on behalf ofPlainti fl7Appellant, Paul J. Abeln                                  '"      0
                                                                                                 '"
       Arthur   w. Lefco, Esquire,                                                                '"'"
                on behal f of Defendant/Appellee, Richard Huntington Pepper, Esquire



W[LLlAM E. FORD, ruOGE

                                  Pa.R.A.P. 1925(0) 0 PIN ION

       This is a legal malpractice case in which Plaintiff/Appellant, Paul 1. Abeln. brought

suit against Defendant/Appellee, AUomcy Richard Huntington Pepper, and Anomey Mary

.I. B. Eidclman who is   Flat   a party to this appeal before the Supe.rior Courl of Pennsylvania.

I granted defense motions for summary judgmenl dismissing the claims ngains\ both

sHorney de fendants Appellant Abeln filed tne present appeal from my granting lhe

motion for summary Judgment in favor of Appellee Pepper,




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                                        Case Histon

       This legal malpractice aClion arises from   i\   custody case, Palll J Abeln v. Heidi C.

Null, Lehigh County number 2007·FC-0427 ("the custody case"). In this malpractice !;iuit,

Appellant clrums that each of the attorney defendants by their consecutive reprcscnr3tion in

the custody case wns responsible for diminishing through court orders his custody rights to

Paul Christopher Abeln, the child that he has with lleidi C. Noll (,'Mother").

       Appellant commenced this malpractice suit on November 13.2009, by filing a

praecipe for writ of summons. Thereafter, Appellant filed a complaint on January 22,

2010 . Aller discovery, each attorney defendant ti led a motion for summary judgment on

September I. 201 L I granted the motions for summary judgment in favor of the attorney

defendants and against Appellant on January 25,2012. The judgments were not

appealable at that poilll because Appellee Pepper had an unresolved cottnlercluim for

counsel fees filed under this same case number.

       On November 6, 2012, I eOiered an order granting Attorney Eidelman's

uncontested motion to sever the malpractice claim brought against her from lht!

malpractice claim brought against Appellee Pepper. Appellnnt Abeln filed a notice of

appeal to the Superior Court from [he January 25, 2012, order granting summary judgment

in favor of Attorney Eidelmao. That appeal is pending at Superior Coun docket number

1978 EDA2013 .

       On September 6, 20 13,judgment was entered in favor of Appellee Pepper and

3g3mst Appellant on Pepper's counterclaim lor counsel fees which Pepper filed in

response 10 Appellant's malpmctice complaint. On &'j)tembcr la, 2013, Appellant

appealed the judgment on the counterclaim and the slumnary judgment in favor of


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Appellee Peppcr on the malpractice allegations. This is the present appeal and it is

assignc.d Superior Court docket number 2573 EOA 2013. In all order dated November I,

2013, the Superior Court consoJid.1ted the two appeals.

       On October 1,2013, in response to an earlier oreier, Appellant filed a statement

under Pa.R.A.P. 1925(b) ("Concise Statement") in which he sets forth four numbered

claims aferrar in the present appeal at 2513 EDA 2013. Ench challenges the granting of

summary judgment for Appellee Pepper.


                             Discussion and Conclusion of I.&w

       To properly evaluate Appt= lIant's claims of error, it is necessary to understand the

history of Appellee Pepper's representation of Appellant in the underlying custody case.

       Appellant's first a1l0mcy in the custody case was defendant, Attorney Eidclman.

Appellant retained Attorney Eidclman on March 29, 2007. With that attorney's assistance,

Appellant Abeln obtained two agreed imerim orders for custody ofbis son.

       On November 16,2007, Appellant fi rst consulted Appellee Pepper. (paragrapb 21,

complaint.) On the same date, "Appellwlt fired Eidclman as his altorney for incompetence.

via email, and asked her to request a continuance of lhc (custody) trial (scheduled for

November 19, 2007) and to contact bis new anomey, (AppeHant) Pepper, prior to [the

custody lrial] ." (paragraph 24, complaint.) Despite this last statement, Appellant did not

execute a written retainer <l,grccmcnt with Appellee Peppcr until December 3, 2007.

(Paragraph 32, complaint.)

       On November 19, 2007, when the case was called for trial, the court excused

defendant Eidelmau from further represCnlnlion at Appellant's request. Appellee Pepper;




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who was not yet retained and was only first consulted on the Fliday before this Monday

court date, did not appear in Court on November 19. By agreemem, the trial was continued

to January 22, 2008 . Mother, lluough her attorney. indicated she was prepa.red on

November 19 to proceed to trial, bUllhe cou~ gave Appellant the opportunity to secure the

services of Pepper   lor the trial. Appellant, acringpro .Ie, agreed to   anoi.hef interim custody

arrangement whereby he and Mother would share legal and physical custody of Paul

Christopher. (Appel lant subsequently sued defendant Eidelman under the present case

number alleging she committed malpmctice and was re~"J>Onsible for the terms of this order

ag.reed by Appellant even though Eidelman had been fi red as call1lsel before this agreed

order was entered .)

       Appellant Abeln and Mother appeared in court on January 22, 2008, for the

rescheduled tri;:li . Appellee Pepper represented Appellant Abeln and Mother also bad

counsel , Another agreed order was entered This is the order which Appellant attributes to

malpractice by Appellee.

        Under this agreed order, the parents shared legal custody of Paul Christopber.

Mother was designated as the primary physical custodian. Appellalll         WllS   given partial

custody rights. The lengthy agreement of the parties was set forth on the record before the

Honorable Maria L. Dalltos on January 22, 2008 . At one point during tbe           prc~'entntion   of

the agreement. there was an interruption when Appellant Abeln and Appellee Pepper spoke

privately. At a later point during the proceeding,s, Appellant, through Pepper, clarified that

the parties would be fo llowing, in reg".d.rd to counseling and a parenting coordinator.

recommendations found in a written custody evaluation made part of the record            (hal   date

and prepared by a psychologist, Doctor Phillip Nastasee.      Appel lee Pepper stated that


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Appellant was noting his disagreement with other significant aspects of Doctor Nastasee's

report. Doctor Nastasee's report resulted from an ag.reement of the parties made months

earlier that they would pay him to do a custody evaluation of this family . Both parents

stated their agreement to the terms of the custody arrangement reached on January 22,

2008, in response to questions by Judge Dantos before she entered the agreed order which

resolved all issues for which trial was to be conducted.

       Appell ant perceived the Nastasoe report as unfavorable to him. He ciaims in the

pt"esent suit that Appellee l'cpper was professionally negligent in not challenging the

Nastasee repon at the January 22, 2008, trial. Specifically, Appellant contends that Pepper

should have hired an opposing psychologist to critique the Nastasce reporr. ln~1.cad ,

according 10 Appellant, "Pepper recommended to Abelll lh81 they exploit a strategy of

delay to allow the (r]eport to become stale and then request n new evaluation. " AppeJlee

Pepper, with Appellant's l.'onsent, followed through on this strategy by filing a petition for

modification of custody on March II, 2008, and by filing the " Petition for Psychological

and Mental Examination of Panics" on September J 6,2008 .

       tn this petilion for a second evaiuat.ion, Appellee Pepper asked thai the court direct

the parties to u.ndergo u psychological evaluation by Steven E. Samuel, Ph.D .. Appellee

Pepper filed a memorandum in support of his petition . Pepper represented Appellant

Abeln at the October 8, 2008, hearing on the petition. Pepper brought Doctor Samuel to

the hearing. No one rcstified at the hearing over which I presided. I granted the pt:tition

for Ihesecond evaluation based on the arguments of coun~l.

       On October 16. 2008, Mother, acting pro Sit, filed n mOlion for reconsideration of

the order seuing up the evaluation by Doctor Samuel. After argument on this motion. J


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entered an order dated November 13,2008. granling reconsideration. Tn mal order, I

rescinded the order ofOciober 8, 2008, so that Mother ilnd Appellant Abeln were no

longer compelled to undergo an evaluation by Doctor Samuel. 1 indicated that the October

8, 2008, order " is   r~cindcd   without prejudice   LO   plaintiff (Appellnnt) to renew his motion

for psychological evnluation at the appropriate time during the trial in this case."

        On January 28, 2009, I entered an order granting Appellee Pepper' s petition to

wilbdrawas counsel for Appellant Abeln . According to Paragraph 3 of the petition,

Appellunt had not paid Appellee for services rendered and Appellant and Appellee had

philosophical differences about the handling of the custody case. On February 13, 2009,

Attorney Stephen J. Anderer entered an appearance 011 behalf of Appellant.

       Mother filed a petition for re(ocatioo to Arizona 00 January 16, 2009. That and

Appellant's petition for modification were heard at the trial which was conducted in Mareh

and April . 2009, before me. Attorney Aoderer represented Appellant at that custody uiaL

Mother was also represented by coWlSel at the trial. Altorney Anderer, in his trial

preparation and at trial , did not renew the request for      M.   evaluation of the parties by Doctor

Samuel. On May t 8, 2009, aller trial, J entered an order mandating tbat Appellant Abeln

and Mother jointly share legal custody and equally exercise physical custody of their child.

       With the above history in mind, 1 now turn to the four allegations of error raised by

Appellant in hjs Concise Statement.

       In the first allegation of error, Appellant Abeln Ilrgucs that r improperly granted

summary judgment in favor of Pepper under the Mllhammadv. Strossburger, 5261'a. 541 .

587 A.2d 1346 (1991),lUld McMahan v. Silea, 441 Po.Super. 304, 657 A.2d 938 (l995)

cases. 1 found that, as a m.atter of law, summary judgment had to be entered for Appellee


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Pepper because the alleged negligem conduct against Pepper stemmed from the custody

order of January 22, 2008, entered with Appellant's agreement without any evidence of

coercion or other improper action by Pepper. My decision was correcl

         This is Appel lant's al legation against Appellee Pepper that Appellee forced him 10

reach an agreement embodied in the Jlll1uary 22. 2008, order which cut into Appellant's

custody time with his child:

                             Pepper unfairly pressured Abeln into accepting au
                   unfavorable settlement, of the custody issue that would
                   ()then.'Iise have been resolved at trial, by both failing to
                   adequately prepare to effectively advance Abeln's interests
                   at the trial and by repeatedly advislng him that, in the
                   absence of a settlement, tbe tenor of the (Nastasee) report
                   and the inexperience of the judge virtually bruaranteed that
                   Abeln would lose what little physical custody of Paul he
                   and his son enjoyed .

(Paragrap h 66(c). complaint}

         As a general rule, a litigunt is not pennitted to agree to a settlement and

subsequcntly bring       II.   malpractice suit against his II.ttorney based on tile temlS of the

sealemenL Muhammad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346,1348 (1991).

The Superior Court hus held that Muhammad prechldes a malpmcticc action where a

settling client merely alleges that settlement resulted from "n deficiency in the lawyer's

exercise of his or her professional judgment." McMahon               }I   Shea, 441   Pa.Su~r.   304, 313,

657 A.2d 938, 942 (1995). Conversely, a malpractice suit stemming from a settlement

may proceed where a litigant shows that the settlement resulted from fraud or from the

attorney's failure to correctly explain legal principles or the consequences of the settlemcnt

10 the litigant.   Id.

        In the evidence presented through discovery, Appellee Pepper, upon review of the


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NnSHlsee report, concluded that Fnthcr would attain n more favomble custody arrangement

through settlement tban through trial. Instead of directly attacking the Nnstasee repon,

Pepper advised Appellant that the better course of action was to reach a custody

arrangement with Molller at the scheduled trial on Jnnuary 22, 2008, allow the Nastasee

repan to lose its effect Ovcr time, work on personality issues through therupy, scc.:ure a

second evaluation orlhe partics and then anempt to get a better custody orrangcmcnl in a

subsequent proceeding. Appellant accepted tb.is strategy and then AppcUunt and Appellee

worked to implement it.

        Appellant Abeln now contends (hal the January 22, 2008, agreed order te~ultcd

from Pepper's flawed strategy of not impel1ching the Naslasee report, pursuing the

senlemcnt option und then bringing litigation Inter oncc a more fnvornble psychological

evaluation was obutined. Appellant does not allege thol he entered the January 22,2008,

agreement as 11 result of frllud or Pepper's failure lO correctly explain to Jilin the pertinent

legal principles or the consequences of the agreement While Appellant contends that he

was coerced into the agreed order, examinntion oflhe evidence developed through

discovery reveals thut Appellun! is octually claiming "a deficiency" in Pepper's "exercise

ofhis professionuljudgment" in pursuiog ooe iitigulion Strategy over another. As tbe

Superior COW1 noted in McMahon v. Shell, the Muhammad rule uperotes to preclude

malpractice suits where a litigant claims his unfavorable settlement resulted merely from

his lawyer's exercise of professional judgment. Thus, these malpractice claims asserted by

AppclhlOl arc precluded as a matter of Jaw.

       FUrther. Appellant gave his infonned consent to the agreement entered on         Jll11uaJy


22,2008. The record from     me hearing reveals 8 setting forth of the specifics oflhe
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custodyagreemenL At onc point, as the agreement was being sel forth, Appellant

inteljecled his comment that he felt tbe transportation provisions for Paul Christopher wem

too broadly stated and that there was conflict in the transportation provisions. N.T.,

1/22/08, p. 7. Later in the hearing, Appellant responded to a question by the judge that he

understood provisions regarding any planned removal of the child from Pennsylvania.

NT., 1122108, p.20. Finally, Appellant gave his approval to the custody provisions put on

the record by the nltomeys. N .T. , l/22108, p. 23,

       Appellant's statement in his complaint (Paragraph 66(c» that he was "unfairly

pressured" by Pepper to enter into the January 22, 2008, agreement is contrary to

Appellant's emai l to Appellee Pepper dated December 20. 2007. In it, Appellant staled to

Pepper: "If you are successful in getting Zamborsky (Mother'S attorney) & Heidi to

discuss n custody arrangement, Twould consider Heidi having title of primary physica l

custodian w ith the following visitation schedule (which Father then set rorth)." (The

December 20, 2007, email is atlached to Appellee Pepper's motion for summary judgmem

as Exhibit G. Appellant admitted sending this email in Paragraph 20 of his reply to

Pepper's Illotion for summary j udgment filed on September 29, 2011.) Also, in a

statement wbich is part of a document that Appellant prepared entitled "Se1fRepon

Progress Note, dated February 20, 2008," Appellant wrote:

               1 made the hardest decision of my life on 1/22108 by
               offering Heidi the title of primary physical custodian, not
               because she was deserving of it but because I hoped that by
               giving her what she craved most, that she would stop the
               hostile actions and start 10 cooperate in a civil, responsIve
               manner that is in {he best In!erests of our 5011.




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(The progress note is altached as Exhibit S to Appellee's October 24,2011. "Motion to

Supplement Summary ludgment Record" (supplemental motion). Appellant has

continned the progress note is authentic. See Exhibit 1 to the supplementaL moti on.

        Appellant furthc r demonstrated that the January 22, 2008, agreement was his

agreement with his testimony on March 24, 2009, during the custody Lrial, in the following

exchange:

               Q:     And why did you agree to the order (stipulated
               order of January 22. 2008)?

               A:        Because 1 was very concerned about Nnstascc's
               report having so many problems with it 1 was
               concerned that I was gOitlg lO have 11 worse - I was not
               going to sec my son at all. And I had hoped that if I had
               given Ileidi what she was craving, that the hostility and
               aggressiveness towards me would end. and that she
               would enable us to slart co-parenting in the best interest
               of our son. And I had hoped, based on the terms of that
               agreemen!, that we would be able to use co- parent
               counseli ng and a pareming coordinator to resolve
               differences and get on better grounds so that in fact we
               would maximize the amount of time that bmh of us
               s hared with ou( son.

N.T., 5/24/09, p.1J O.

       Thus, under the authority of Mlihammud and McMahon, f properly entered

summary judgment for Appellee Pepper.

       In hill secoud allegation of error, Appellant claims that I ignored bis ··credible

evidence in the record" s upporting the malpractice clai m so that the granting of sum mary

judgment wa:- not proper. As to the evidence I supposedly ignored, Appellant points to

"the professiona l opinion of a qualified legal maJpmctice expen." This is a reference to

Richard A. Katz, Esquire, who authored an opinion letter dated April 29. 20 11 . The



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August 29 letter refers to a March 4, 2010, letter by Attorney Katz. This earlier leiter does

not appear LO be part of the record. Appellant also refers to "Pepper's admIssions in

deposition"' which are not specified in the Concise Statement. Finally. he refers to

Appellant' s own testimony that Pepper' s failure to adequately prepare for a custody trial

\vrongrully prevented lum from exercisi ng meaningful discretion" to choose a trial over the

settlemem of January 22, 2008. There is also no specificity given as to the fashion in

which Appellee Pepper supposedl)' failed to adequately prepare for trial although the

Concise Statement, taken as a whole, does make it clear that Appellant faults Appellee

Pepper for no! preparing a critique afthe Nastasee report

       I have aJrcady commented on Appellee Pepper' s advice not to attack the Naslnsee

repon. That entire subject falls under the strotegy advice provided by Pepper   (0   Appellant

and accepted by Appellan t. As I have already explained,. as a matter of Ja.w, that strategy

decision by Pepper cannot be used as a basis for this malpractice claim after it resulted in

the agreed order of January 22, 2008. The remainder of these nllegalions in Appel lant'S

second claim of error are nol sped tic. I do not know to what aspects of the legaJ

malpractice expert's reports Appellant is referring and to what alleged lack of trial

preparalion Appellant is referring beyond the NastaSec issue Moreover, all of me legal

malpractice expert's opinions and Appellant'S preserved issues appear to go back to the

Nastasee issue.

       In the third ch.llm of error, Appellant complains that thc court's erroneous rulin& in

granting summ ary judgment in favor if Appellee Pepper wrongfully depnved him "of his

only viabJedefense to Pepper's counterclaim forattomey ' s fees." The counterchl1m was

heard at an arbilration at which no rec.ord was made, However, jfthe court properly


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granted summ ary judgment in favor of Pepper. then there is no substance to this al legation

of errOr and it should be denied.

       The final allegation of error reads:

                       Did the trial court err in finding no negligence in
               Pepper's failure to offer testimony of a quwified
               psychologist, with knowledge of Abeln's wifc's past
               performonce on certain probative psychological tests, to
               -support A beln's motion to have the menIal stability of his
               wife eva luated in order to gain primary physical custody of
               his child?

       A response 10 thls requires a summa ry of what 1 have already stated. The

psychological evaluation completed by DoelOT Nastasee before the January 22,2008.

agreed order resulted from the decision by Appellant Abeln and Mother to jointly pay for

and cooperate in the completion oftllllt report. Second, there was th e strategic decision

recommended b y and then made by Abeln oot to have a second psycho logical report

completed before the January 22, 2008, agreed order. Third, Appellant Abeln, agreeing

with the advice of Appellee Pepper, wai ted a number of months following the agreed order

and then filed a mOl ion aski ng the court for a second psychological evaluation to be

conducted by Doctor Samuel. The court initiall y granted th3t request and then rescinded

the authorization for it against the wishes of both Appellant and Appellee. Fourth,

Attorney Anderer, with whom Appellant Abeln apparently has no problem in regard to

representation, did not resubmit a request for a second psychological evaluation at any

point before or during the trial that occurred in March and April of 2009, despite being

given the opportunity to request a second psychological evaluation by the COlirt when it

rescinded the authorization for the evaluation by Doctor Samuel. The trial in 2009, \.vhere

no additional p sychological evidence was presented, yielded a result that Appellant


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acknowledges was acceptable to him . Thus, there is nO factual dispute that Appellant

Abeln was able 10 secure a result acceptable to him in terms of custody wlth his son

without any second psychological evaluation.

       As the fact·finder and the judge who made the decision at the trial in March and

April of 2009, far too OHlch weight is placed by Appellant Abeln on the effect that Doctor

Nastasee's report and lestimony had at any point. This was perhaps best demonstrated by

the result afthe lrial conducted in March and April, 2009. With these factors in mind, as a

matter of law, there can be no merit to the claim that Appellee Pepper was negligcnl for

foiling to go beyond what he did to secure a SeoJnd psychological evaluation.

       Because the granting   or summary judgmeot in favor of Appellee Pepper and
ag:linst Appellant Abeln was proper, this appeal should be denied.




November 8, 2013
                                                   lAM E. FORD, }         E




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                                                        ADD4 I




               TIIE counT
            IN TIlE COURT OF COMMON PLEAS OF LEIllOR
                                             LEIDCR COlil'<TY,
                                                     COUNTY, PENNSYLVANIA


'I~                                               CIVIL DIVISION
                                                        IlNlSJON

  ,\W       PAUL!. ABELN,

        P                   Plaintiff                                     No.2009-C-6037
                                                                          No. 2009-C-6OJ7

                     v.
                                                                                                                     t(9'
                                                                                                                     tfY
                                                                                                   .   ..,     ~
                                                                                                               ~
                                                                                                               =
            MARY .I.
                 J. B. EIDELMAN, ESQUIRE,
                                 ESQUtRE, and                                                       '.'.,, ,.
                                                                                                       .
                                                                                                           '-
                                                                                                               ~

                                                                                                                     II
                                                                                                                     1l
                                                                                                               '" ,-
                                                                                                               ".
            RICHARD HUNTINGTON PEPPER,
                                                                                                               ~
                                                                                                               ~
            ESQUIRE,                                                                        \ . . ;, -.-i,
                                                                                            ,...;"., ',-,      V>
                                                                                                               U1 I
                            Defendants                                                             .       -
                                                                                                               ~
                                                                                                               :;:
                                                                                                               :0:
                                                                                                                     r"lI-~l
                                                                                                                     0CJ
                                                                                                   "           ~




                                                    .........
                                                    ..............                                             ~




            WILLIAM E. !'ORD,
                       FORD, JUDGE

                                                    OPINION
                                                    OPIN IO N

                     This is a legal
                               Jegol malpractice suit which arises from a Lehigh County cuswdy
                                                                                        cust.ody action,
                                                                                                 action.

            Paul Abeln \I, Heidi C.
                                 C. Noll, Lehigh County 2007·FC-0427.
                                                        2007·FC-0427 . The child,              orlhe
                                                                           ch ild, the subject or lhe

            cllstody case, is Paul Chri
            custody                Christopher
                                        stopher Abeln who was born on August 7. 2006. Paul
                                                                                      Pa.ul

                                                        Paul J. Abeln (who will be referred to as
                                  arc plaintiff herein, Paull.
            Christopher's parents an:

            "Father"), and Heidi Noll Abeln ("Mother"), 'NItD
            "Father").                                                party to this maJpraclice suit
                                                        YAIO is not a part)1                    suit.

                       Attorney Mary J. n.
            Defendant, Anomey
            Defendant.                  R EideJ.rnnn,
                                           Eidelmnn. and lhen
                                                         then defendant, Attorney Richard

                               reprcscnte:i Father in the custody 3ct.ion.
            Huntington Pepper, represcnte:i                       action. Father aJlcges in Ibepresenl
                                                                                            tbe present

                              action that each of these attorneys commined
            legal malpractice iictiol1lhnt                        committed professional
                                                                            professional negligence
                                                                                         neg!igence

            and breach of contract in each
                                      t!aCh attorney's respective representation of him in the cuslody

            case .
            case.

                                                               oow,
                                                               NON,   bG
                                                                      /pr. -tJ.
                                                                           t.).
                                                               COPIESOFTHEWlTHINCOURT
                                                               COPIES OF THE WITHIN COURT
                                                               OROER
                                                               ORDER OR OECREE
                                                                         DECREE MAILED
                                                                                 MAilED TO
                                                               AU.INTERE~TED
                                                               AIl.INTERESTED PARTIES BY'
                                                                                      9\'
                                                                       cW
                                                                       C rjf
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       DcfcncU.U1ts filed motions for summary judgment. Because lhere
       DefcncU.Ults                                             there is merit to the

mOlions, I granr
mOlions.   grant them and enter judgment for the defendants.


Claims against
Claims: agHinst Atlorney Etdclman
                Attorney Eidclman

       father
       Father hired defendant Eidelmun
                              Eidelman as his attorney on March 29. 2007.
                                                                    2007, to pursue a

diVorce
divorce from Mother and for c~10dy of Paul Christopher. Eidelman filed a divorce
                        fOT custody

complaint on March 30. 2007 . The complaint i.ncluded
                   30, 2007.                included a8 COWlt
                                                        count for
                                                              ror primary custody of Paul

             The divorce case with custody count was docketed in the Lehigh
Christopher. 'me                                                     Lehigb County

                      at 2007-FC0427.
Court of Common Pleas fll 2007-FC-0427.

       On March 24, 2007, Mother secured an order from a magisterial dislrictjudge

                                                                 cpr    rut ex parle
against Father wldcr Pennsylvania's Protection from Abuse Act (PF A) at all    pal',e

hearing. Under t he
                 be terms of that order.
                          oCtha!  order, Father was evicted from the
                                                                 rhe marital
                                                                     marilal residence in

Orefield, Lehigh  CounlY, Pennsylvania. The order provided that it wouJd expire at {he
          Lehig.h County,                                                          the end

oflhe next busi.ness
oflhc                   ul.lless further action were tuken
           business day wllcss                       taken by Mother. Mother permitled
                                                                             permitted the

ex pane
e.c parte order to expire and sbe
                              she did not.
                                      not proceed with the PF
                                                           PFAA matter in Lehigh CoUnly
                                                                                 COilnlY

Court.
Court. flowever,                          ex parre order, she took
       (lowever. after Mother secured the I!.X                LOok Paul Christopher wilh
                                                                                    with

herto
heTlo Arizona without advance not ice to Father.

                5, 2007, defendant Eidelman filed a petition for emergency relief on
       On April 5,2007,

          rather. In the pelition.
behalf of Father.        petition, Father sought the immediate return of Paul ChIistophcr
                                                                              Christopher to

PennsylVania.
Pennsylvania. Father also
                     a lso sought                             cu~1ody" of
                           soughr "temporary primary physical custody" oIPaul
                                                                          Paul

Christopher.

          April 5, 2007, at a hearing in
       On AprilS,                     In Lehigh County
                                                CoW!ty Court
                                                       Cowt with both parents present,

the petition for emergency reJiefwas
                           relief was resolved by agreement. Under the agreement.
                                                                       agreement, Father



                                             2
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                                          IADD6 1



was granted exclusive possession of the marital residence . He was made thc
                                                                        the primary

physical custodian of Paul Christopher Mother
                                       MOlbt"r was given visitation with lhe chi ld for a
                                                                         the child

                                                   that these provisions would be
minimwn of three hours per day. The parties agreed Lhallhesc
minirnwn

temporaC)', Additionally, Mother agreed to withdraw a protection from abuse case she filed
tempora.ry.                                                                          met!

in Arizona. The part ies agreed to engage in counseling. Defendant Eidelman represented
                parties

rather at this hearing.
Father

       On April 24, 2007
                    2001 ., Mother filed a petition for shared legal and physical custody of

jlauJ Christopher. A hcuring
]lauJ                hC<1ring was conducted On this petition
                                            on Ihis                    2007 . Derendant
                                                    petilion On May 2, 2007.  Defendant

Eidelman represented Father at Ihe
                               the May 2 hearing. Again an agreement  was reached. The
                                                           agrt:ement W<.tS

agreemeni,
agreement, which was made an order of court,
                                      CQurt, had interim custody provisions. Under the


agreement, tbe parents would share legal custody of Paul Christopher. Father remaincd
agreement. the                                                               remained the
                                                                                      thc

primary physical custodian of Paul Christopher. Mother
                                                MOlher received incre."\sed
                                                                increased partial

         custody rights. The parties agreed that either Doclor
physical cllstody                                       Doctor Phillip Nastasee or Doctor

Eileen                                   evaluation oflhe
Eilecn Ginsburg would do a psychological evnluation        parties.. Trial on the custody
                                                    of the parties

count
COUllt in the complainl
              complwnt was scheduled for November 19, 2007.
                                                      2007 .

       According to the present malpractice
                                ma lpractice complainl,
                                             complaint, Father aod
                                                               and defendant Eiddman
                                                                             Eidelman did

nol receive a copy of Doctor NasL.1See
not                          Nastasee 'S
                                       's evaluation until November 14, 2007. On

"November 16, 2007, Abeln fired Eidelmnn
                                EideLman as his attorney for incompetence,     c-mail,
                                                             incompetence. via e-mail,

and asked her to request a continuance
                           continl1ance ofthc
                                        ofllie trial and to contact his new attorney.
                                                                            attorney,

(de fu nd ant) Pepper, prior to November 19."
(defendant)                              19." (paragrRph
                                              (paragraph 24, Complaint.
                                                             Complaint.))

       The Honomble  Maria L. Dantos
           Honorable Marin    D:m(DS convened coun in the custody CWle
                                                                  case all
                                                                       0 11 November


19.2007. Defendant Eidclman presented a petition to withdraw as cowlSel
                                                                counsel for Father.

Judge Dantos grantcd
             granted that petition.



                                              3J
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                                            IADD71
                                            IADD7 1


        According to Ihe
                     the maJpmctice compluint,
                                    complaint, father
                                               Father initially consulted defendant

                   16, 2007, the day Father ""fired"
Pepper on November 16.2007,                   fired" EideJrnan.
                                                     Eidelman. (Paragraph 21.

Complain!.) Falher
Complaint.) Falhercxc.cuted   written retainer agreement with Pepper on December 3.
                   executed a wrilten                                            3,

2007. (Paragrapb
      (Paragraph 32, Complaint.) Pepper entered his appearance on February 8, 2008,

                                                 January, 2008, as I will explain.
although Pepper appeared with Father in court in JlUluary.

        Ir return to a description of what occurred.
                                           occurred when this case was called for trial on

November 19,2007
         19,2007. Shortly after the stan
                                    sIan of the hearing.
                                                bearing, defendant Eidelrnan
                                                                   Eidelman was

excused from further
             funhcr representation. Defendant Pepper, who         W8S
                                                                  \N8.S   not yet retained and was

     fU'st consullcd
only fll'st consulled on
                      all the
                          th e Friday before this Mond.1-}'
                                                  Mond.'lY hearing, did not appear at the

November 19 hearing.
            bearing. By agreement. the trial was continued to Januury 22, 2008.

Mother, through het
                her attorney.
                    aUomey, indicated she was prepared on November 19 to proceed to

trial, but !.he
           the court
                co urt gave Father
                            ratber the
                                   Lhe oppOrtunity
                                       opportunity to secure the services of Pepper. Also all

November 19, 2007, aner
                   lifter Eidelman was excused from funher representation, Father,

           ~·e, agreed 1
acting pro SC,         to
                        0 another imerim
                                  interim cUSlody
                                          custody arrangement whereby he nnd Mother

would share legal and physical
                      phys ical custody of Paul
                                           Pau l Christopher.
                                                 Christopher.

        In Count r oflhe complaint, Father aUegcs
                                           alleges legal malpractice by defendant

Eiddrnan
Eidclrnan for the fo
                  following
                     Uowing reasons;
                            reasons ; (a) failing to seek access to Doctor Nastasee's work

                                             fa iling to prepare Father for rus
papers for the psychological evaluation; (b) failing                        his examination

by Nastasee as part of
                    ofthc
                       the evaluation process;
                                      proccss; (c) [ailing
                                                   failing to seek a continuance of the

November 19, 2007, trial date and failing to
                                          10 retain an independent expert to critique
                                                                             critiq ue

Naslasee's findings ; (d) fail ing LO
                                   to prepare witnesses for and arrange the aitendance
                                                                            attendance of

,viUlesses
witnesses at                                                     at trial; (0
           al trial; (e) failing to prepare Father for testimony al        (f) preparing proposed
                                                                                         propOsed

findings of fact and
                 und conclu
                     conclusions
                            sions of law before the presentation of any 101101
                                                                        Iriailestimony;
                                                                               testimony; (g)


                                                4
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                                           IIADDSI
                                             ADDS I




Inking
tak ing an out-of-state           Immedialely prior to trial "with
           oUI-of-Sl<ltc vacation immediaieJy                liwith knowledge that

transportation difficulties might arise that could prevent her (Eidclman)
transponalion                                                  (Eidelman) from appearing

with Abelo
     Abeln at
           ill the trial " ; and (h) lliiog
                   trial";           using a pretext as a reason for refusing to request a

continuance
cuntinuance of (he
               the November 19,2007, scheduled Irilll.
                                               trio.!. (Paragraph 56, Complaint.)

                              claims that he was "forced to accept an unfavorable,
       As his damages, Father ciamls

negotiltted outcome thR!
negotiated               nol only deprived him of Iia substantial amount of contact with his
                    thBt not

son, Paul, but exposed Paul to longer periods
                                      penods of Heidi 's
                                                      ' s care to the child's
                                                                      child 's emotional

detrimenl" (Paragraph
detrimenL" (Puragraph 57, Complaint)
                          Complaint.)

       In Count n
       Tn       II of the complaint, Father stales
                                            states a bleach
                                                     breach of contract chum against

defendant Eidclman.
          Edelman. He alleges that the negligent acts stated in the complaint, which I just

summarized,
swnmari7.oo, constitute a breach of Paragraph 5 of
                                 ofPnragraph    oCthe
                                                   the retainer agreement whereby

Eidelman promised that "[  eJvery reasonable effort will be made to prosecute andlor defend
                       " [ cJvery

your case
     cose di ligently and
          diligently  WId efficiently according to legal, ethical and locnJ
                                                                      loeaJ practice standards

in an enart
      ellort to
             (0 achieve solutio ns which arc
                        solutions                                   you." (Para.graphs
                                             juSt and reasonable to YOll."
                                         are JUSt                          (Paragraphs 60

                                   Father only alleges that, ·'[o.]s
and 61, Complaint.) As to damages, Famer                     "[a1s a foreseeable
                                                                     forcseeable

consequence of Eidclman'
               Eidelman'ss breach, Abeln ssuffered
                                           uffered money damages ilial
                                                                 thai exceed arbitration

limils oft1lis
limits of      COW1 ," (paragraph 62, Compla
          this COw1."                        int.) There is no specification as to "moocy
                                      Complaint.)                                  "money

damages,"

       1n the motion for summary judgment filed
                                          fi led by defendant Eidelman on September
                                                                          Septembcr 1,
                                                                                    I,

2011, she states she is entitled to summary judgment bec(luse
                                                     beeause plaintiff cannot prove

                to her representation,
damages related [Q                     rn this regard, Eidelnuw
                       representation. In              Eidelman poinLS out that she was not

         attorney when he agreed to shared custody on November 19,2007, and
Father's auomey                                                         IlI1d that lht!
                                                                                   the




                                                5
                                                                                 Circulated 12/30/2014 11:51 AM

                                         IADD9 1


shared custody order th"t              enlered on that date was actually entered by
                     that Judge Dantos entered

agreement of Father with Mother. There is merit to these arguments made by Eide\man.
                                                                           Eidelman.

                    ofFJ:llher>
       The gravamen of Father's~ complaint is that the negligence of his attorneys led to

orden; whereby his custody with Paul Christupher
orders                               Christopher was gradually diminished through court

orders. While there was diminishment of Father's custodial right3
                                                           rights at tJlnes
                                                                     tllnes through court
                                                                                    coun

orders, there is no evidence in the record that it was caused by any negligence by defendant

Eidelman.
Eidelman.

                                             3ttorney, the agreed order of April S, 2007,
                                   Father'ss anomey,
        With defendant Eidclman as Father'

was entered. Under thal
                   that order, Father was made the sale legal custodiun
                                                              custodian of
                                                                        ofPaui
                                                                           Paul

Christopher. He was granted primary physical custody of Ihe
                                                        the child. With Eidelmilll
                                                                        EidclllUUl as his

attorney, the agreed order of May 2. 2007, was entered. Under thal order, lhe
                                                                          the parties

shared legal custody of Paul Christopher. Father remained the primary physlcnl
                                                                      physical custodian,

but Mother's
    MOlher' s custodial lime
                        time wilh
                             with Paul Christopher increased. These are
                                                                    are. lhe
                                                                         the only two

order.;
orders setting forth custodial rights oflhe parcnLS while Eidclman
                                                          Bidelrnan was Pather' s attorney.
                                                                                  allorney.

'f1te
TllC order entered on November 19, 2007, WIlS entered by agreement
                                         was enlered               of Father aftcr
                                                         agrecmem ofF1tthcr  after

Eidelman
8idelman had been excused by court order fJom
                                         fIOm further representation. Under this agreed

       the panies shared
order, thepanies
order.            sharcd both legal and physical custody of Paul Christopher.

       There is no evidence that defc:ndanl
                                 defendant Eidelman is legaHy responsible for
                                                                          ror the

           9, 2007, order providing shared custody. Because Father ""fired'l
November J19.2007,                                                           Eidclman
                                                                     fired') Eidelman

            the November 19 hearing and Judge Damos
days before [he                               Dantos granted Eidclman ' s petition to
                                                             Eidelman's            10


                            stated their agreement at the November 19 hearing, it would
withdraw before the parties slaled

have been improper for Eidelman to give her input about
                                                  abom the wisdom of
                                                                  oflhe
                                                                     the agreement or

                      p laintiff as the agreement was being stated. Father had not yel
to provide advice for plaintiff



                                              6
                                                                                        Circulated 12/30/2014 11:51 AM

                                               ADD10




                                                           QWI1 - by his choice-
secured the services of his next attorney so he was on his own           choice - when thl!
                                                                                       the

agreement was reached. The record of that
                                     thai hearing demonstrates a complete selling
                                                                          setting forth

orlhe agreement and Father's acceptance of it.
anhe

        Furthennorc.
        Furthennorc, as a general rule, a litigant is not
                                                      nol pennilted
                                                          pennitted to agree 10
                                                                             to a settlement

and subsequt:l1tly
    subsequently bring a malpractice suit against his
                                                  hi s aflamey
                                                       attorney based on the tenns oflhe
                                                                             terms of the

seulemem. Muhammad v. Slrassburger.
                      Strassburger, 526 Pa. 541 , 546,587 A.2d 1346,
                                                               1346. 1348 ((1991).
                                                                            1991 ).

ro commenting on the proper application oftht!
In                                                 announced in Muhammad,
                                        oflhe rule annolillced  Muhammad, the

Superior Court stated:

                 Muhammad has been held to     \0 be controlling where the
                                                 consistl."Ci or "advising and
                 lawyer's alleged negligence consisted
                 represenling [a client] and in negotiating for him the
                 representing
                 terms of
                 tenns  o([a]                   sale," Goodman v.
                               senlcmenl and sale:'
                           [a] settlement                            v, KOfzeh,
                                                                         Katzen,
                 436 Pa.5upec.                           247, 250 (1994)
                                 71. 77-79, 647 A.2d 247,250
                      PH.Supe,- 71,77-79,                             (1994)..
                 Muhammad was also held to be detemlinutivc
                                                      deremlinarjve where i.he  tile
                                exprclised dissatisfaction with the amount
                 client merely expressed                                   Mlount
                 of her marital                        thal the lawyer's
                        murital award and averred lhalthe
                 conduct had caused herber to receive "8"a deficient amount"
                    marilal property, alimony and other available relief.
                 of marital
                Spirer
                SpireI' v. Freeland & Kronz, 434 Pa.Super.
                                                       Pa.Supcl", 341 ,344-46,
                                                                          , 344-46.
                            673, 675 (1994). Finally, in Marro.~·
                 643 A.2d 673,675                             Ma,ros v. '.
                 Cancilio,
                 eoneilio, 427 P,,-Super.
                                 Pa.Super. 612, 629 A.2d 1037 (1993),
                .Mllhammad
                Muhammad was held to        be controlling where lhe
                                         10 hI!                        the
                 lawyer's alleged negligence had consisted of on "alleged
                 lawy.:r's
                                                          cliemJ in
                 failure to adequately represent [the client]
                negotiations of the settlement agreement." Id.     ItL at 613,
                629 A.2d at 1038. These are  8re sitU3tions
                                                  situations in which the
                client
                c lient perceived a deficiency in the lawyer's exercise of      of
                his or her professional jjudgment.
                                           udg.ment.

McMahon v. Shea, 441
McMohon          44 1 Pa.Super. 304, 312-13,
                                     312·13, 657 A.2d 93H, 941-42 (1995).

Conversely.
Conversely, tbe                   Muhnmmad is inapplicable where a settlement occurs
            the rule announced in Muhnmm(ld

as 8a resull    f(",dUd or an aUomey's
      result of fnmd          attorney's fai lure to accurately advise the sewing
                                         failure                           settling client of an

eSlnblished
eSLDblished principle
            prinCiple of law or Lhe
                                the consequences ofthe
                                                 of the settlement.
                                                        setllement. Muhammad v.
                                                                             v.



                                                    7
                                                                                    Circulated 12/30/2014 11:51 AM

                                           ADD11




Strasshurger, 526 Pa. at 546, 587 A.2d at 1346; and McMahon v.
Sfr(Jsshurger,                                              1'. Shea, 441 Pa.Super.
                                                                          Pa.Supcl". at

313,657
313, 657 A.2d   at   942.

                                       demonstrates that
        In the case at bar, the record demonstroles mat Falber
                                                         Father knowingly and voluntarily

entered the November t 9,2007,
enteroo                         agreement. As was previously mentioned, Eidclman was
                       9. 2007. agrecluent.

not present at the agreement because Father chose to terminate her representBtion
                                                                   represcmotion three

days before the hearing. All of the evidence demonstrates that Father entered the

agreement w ithout the assistance of Eidelman by his Own
          without                                    own choice. There is no evidence

demonsirating
demonstrating that Father entered the agreement      res~l h of fmud
                                      ngreement as a result     fraud or a failure by

Eidelman to                wi th accurate legal advice.
         La provide Father with                 advice. Thus, under Muhammad and its

progeny, Father is precluded from alleging malpractice
                                           rruUpractice against
                                                        again st Eidelman based on the

      oftbe
terms of the November 19 agreement
                         agreement.

       Father also makes triaJ
                         trial preparation allegations against defendant
                                                               defendam Eidelman.,
                                                                         EidelmflTL As         r
        ou~ father
pointed out, Father alleges in Paragraph 56(a) of the complaint, thai
                                                                 thal. Eidclman failed to

       tbe work papers for the evaluation by Doctor Nastasee. However,
secure the                                                    However, only two days

after the Nastasec
          Naslasec report was given to Eidelman and Father, Father fi
                                                                   fired
                                                                      red Eidelman. Father

further faults Eldelman for nm
                            not preparing him fo
                                              forr his interviews
                                                       inter views with Doctor Nastasee.
                                                                               Naslasec.

HO\\lcver,
Hov,'cver, neither the complaint
                       co m plai nt nor the discovery indicates how the failure to interview

alTected the report or testimony of Doctor
affected                            DoclOr Nastasee..
                                           Nastasee_

       Father claims defentlant
                     defendant Eidelman
                                Eidelmnn was negligent in not requesting a continuance of

             t 9, 2007, trial after the Nastasee report was released. The court granted a
the November 19,
tbe

continua nce of the November 19 trial by agreement of the parties. The court granted the
continuance

continuance so Falher
               Father could secure the services of hls
                                                   his next
                                                       ncxt attorney,
                                                            attom ey, Pepper. Therefore,




                                               8
                                                                                     Circulated 12/30/2014 11:51 AM

                                              ADD12




 Futhcr
 Father cannOl dCmOnSL'"3tc any damages resulting from this alleged negligence on the part
        cannot demonstrate

 ofEidclman,
 of Cidclmllll,

            father next contends that defendant Eidclman was negligent ror
            Father l1cxt                                               for not retaining an

 expCI1
 CXPC11 to cri tique Nastasec's
           critique  Nastasee's report, not prepanng
                                            preparing wiLrlesses
                                                      wi tnesses for
                                                                 fo r trial and not preparing

 Father fo
        forr trial.                       that Eidelman did not retain another expert. how could
             tria l. As to the allegation tllal

 she do that? As Ir pointed out,
                            Qut, she was fired right afte
                                                     afterr the Nastasce report was released.

                       of insufficient trial preparation by November 19,2007,
 The other allegations ofinsufficient                                19, 2007, have no

 merit. The continuing of the trial date beyond November 19,2007.
                                                         19.2007, was reasonable and

 even predictable  in light of the release of the report only days before November 19 and
      preilictablc In

Father's
Father'S firi ng or
         firing     Eidelman. The continuancc
                 of Eidelmao.     coolinuMCC was granted to allow Pather
                                                                  Father to preparc.
                                                                            prepare.

Trial did nol
          not occur until more than a year and four months ancr  Eidelman was excused
                                                           aller Eidclman

from represenLation and, in the interim, Father and Mother lived under their agreed custody

order of November 19,2007. Under these circumSlances.
                                       circumstances, there
                                                      thcre is no evidence of

insufJiciclltlrio..l
insufficicnt         preparolion nor evidence that Eidclman's
              trial preparation                                        imp(iCl~d any
                                                   Eidelrnan's conduct impacted

di
dim inishment of Father's custody rights.
   minishment

            As to the remaining allegations                             against defendant
                                al legations of professional negligence againsi

Eidelman,
Eidelrnan, they arc                             to the contentions about Eidc:lman's
                are patently frivolous. I refer lo                       Eidelman's pre--uial
                                                                                     pre-crial

preparation of findings of fact and conclusions of law. her vacation and other allegations
prcpararion

about continuing               19,2007, trial date.
      continu ing the November 19.2007,

            The proft:SSional negligence claims against defendant Eidclman lack a legal and

fac tuall baS
factua    basIs
              IS so judgment must
                             mu st be entered for Eidelman
                                                  Eiddmao on them. Further, becausc tJle
                                                                   Further. because the

          contrac t claim rests upon the claims
breach of contracl                       claim s of negligence, the breach of contract claim
                                                 ofnesligcnce,

fa il s..
fails


                                                 9
                                                                                   Circulated 12/30/2014 11:51 AM

                                          ADD13




Claims ugainst
       again.,1 Attorney Pepper

        Following Eidelman's withdrawal frOot
                                        frOUl the case, Falher
                                                        Father ruld
                                                               and Mother appeared in

court on January 22, 2008, for the rescheduled triai.
                                               trial. Both parents were represented by

counsel for that day's proceedings. Another agreed order was entered. Under the agreed

order, tbe parents shared legal custody of Paul Christopher. Mother was designaled
order.                                                                  designated as the

        phys ical custodiall.
primary physical  custodiun . Father was given partial custody rights. The lengthy

agreement of the
             me parties was set forth on the record before Judge Dantos. At one point
                                                                 Danlos. Alone

during the presentation of the agreement, there was an interruption when Falner
                                                                         Father and his

attorney.
attorney, defendant Pepper, spoke priwlcly.
                                  privately. At an lulcr
                                                   later pOint
                                                         point during the proceerung:;,
                                                                          proceedings,

Father, through Pepper, clarified thai
                                  that the patties
                                           parties will be following Doctor Nasl.lJ.see's
                                                                            Nnstilsee's

recommendations in regard to counsd
                             counsel ing
                                     ins and 8a parenting coordinator hut
                                                                      but thai the parties

                    Doctor Nastasee's
are not agreeing to DOCior             conclusions. It was also made clear that Father was
                           Nastasee' s CQnclusions.

contesting allegations. conclusions, diagnoses and other things contained in Doctor

NaslflSee' s reporl.
Nastasee's   report. The report was made part of the record during that proceeding. Both

parents stated their agreement to the terms oflhe custody arrangement in response 10
                                                                                  to

questions by Judge Danlos.
                   Dantes .

       On March II,
                II , 200g.
                     2008, ailer             hearing. the Honorable Edward D. Reibman
                           after a contested hearing,

entered a filml
          final PFA order in favor                                                fhree years.
                             favo r of Mother and against Father fo r a period of three

(Lehigh County
        Counl)' case number
                     number2008-PF-0089.}
                            2008-PF-0089.)

       On March 11,2008,
                II, 2008, Falher,
                          Father, through defendant Pepper, filed a petition for

modificntioll of custody Mother filed aB petition on January 16. 2009, for relocation to
modification




                                              10
                                                                                       Circulated 12/30/2014 11:51 AM

                                               ADD1 4
                                               ADD14




Arizona . Both petitions                   {fini which was conducted in Morch
               petItions were heard at the trial                        Mnrch and April,
                                                                                  April.

2009, before me.
2009.

             In
             ID preparation for
                            fOT the trial on tilese
                                             these petitions, Father, through defendant Pepper.
                                                                                        Pepper,

filed "Petition for Psychological and Mental
                                      Menial Examination of Parties" on
                                                                     all September 16,

      III it, he asked that the c:owt
2008. In                        court direct the parties to undergo a psychological evaluation
                                                                                    evuluation

             Samuel , Ph.D .. Pepper fLIed a memorandum in support of his petition.
by Steven E. Samuel,                                                      pelilion.

Attorney Pepper represented Father at the October 8, 2008, hearing on the petition.
                                                                          petition. Pepper

brought Doctor Samuel 10 the                               Ibe hearing over which JI
                         tile hearing. No one testified at the


presided. 1I gra[]ted
             granted the petition for the evaluation hased
                                                     hiL'ied on the argumentS
                                                                    argumc1lI5 of counsel.

         On October 16. 2008 , Mother, aClingpro
                    16, 2008,                    Sf!, filed a motion for reconsideration of
                                       aclingpro Sf,

the order granting                    DoclOr Samuel. After argument on this mOlioll,
          grantiJlg the evaluation by Doctor                                motion. I

entered an order daied
                 dated November 13, 2008. granting reconsideration. In that
                                                                       tha[ order,
                                                                            order. I

rescinded the order of Oclober 8, 2008, so that Mother and Father were no longer

compelled to undergo an evaluation by Doctor Samuel.  indicated that the October 8,
                                             SamueL I indicUlcd

2008, order "is rescinded Without              ptaintiff (Father) 10 renew hi
                                  prejUdice to plaintiff
                          without prejudice                                     mOlion for
                                                                           hiss motiun

psychological evalualion
              evaluation at the appropriate time during the trial in this case."

         On January 28 , 2009, I entered an order granting defendant Pepper's petition to

wi
\vi thdra\\'
    thdrawas as counsel for Father. According 10
                                              to Paragroph
                                                 PnragrJ.ph 3 of the petition, Father had llot
                                                                                          not

paid Pepper for ser.'ices
                services rendered and Father                philosopllicaJ differences
                                      FaLher and Pepper had philosophical

aboul
about the hand
          band ling of the custody case.    Pebruary 13, 2009, Attorney Stephen 1.
                                   casco On February                            J.

Anderer entered an
                un appearnnce
                   appearance on behalf of FOlher.
                                           Father. Anomey Andcrer
                                                          Anderer represented father
                                                                              Father

£II the custody trial in March and April,
al                                 April. 2009. Mother was also represented by counsel at

the trial.


                                                  II
                                                                                     Circulated 12/30/2014 11:51 AM

                                            ADD15
                                            ADD 15




        I entered an order dated February 26, 2009, granting Father's pet ition, presented by

Attorney Anderer, for Doctor Nai>iasee's emire file,
                             Nast3see's coLin  file:. On the same dale. I denied Motber's
                                                                                 Mother's

petition for discovery ofLhe
                       oflhe file of Doctor
                                     Doclor Samuel. As I indicated in me  foornoLC to tbal
                                                                      the footnote    tbat

                          "A t this point,
second February 26 order, "At       point. according                          pillimiff
                                           acconling to counsel (Anderer) for pll1iOliff

(Father), th ere is no expectation tblll
          there                    that Doctor Samuel will be ca lled as a witness in this

             was
case." There .....'3.5 no further petition filed by Falher
                          fUl1her pelition          Fruher for an evaluation
                                                                  cvoJualion by Doctor Samue l.

                       parties when IJ rescinded the order thai
As I made clear to the purties                                  allowed the evaluation by
                                                           thol ollowed

       Sarn uel,
Doctor Sam  u c~ . Ii wou                                           Doctor Samuel iiit
                          ld have considered again an evaluation by DOClor
                      would                                                       ifit

appeared at the trial that su ch an evaluation was appropriate. fn
e.ppcnrcd                                                              evenllhm
                                                                Tn the event thm such IIII

petilion had been suhmin
petition                 ed and in
                  submitted     ifI deemed it appropriate, I would have adjourned the

custody trio.!
        trial for Doctor
                  DOclor Samuel 's evaluatio
                         Samuel's  evaluation.
                                             ll, made provision fo r hi s testimony, and

entered an intedm                    th ings could be done
           interim order until those things           done..

        In Count
           Coun t TIl of his complaint,
                             complain!, Father bri ngs a count for legal malpractice against

                      Counl rv,
defentlnnl Pepper. In Count
defendrutt                  TV, Father alleges breach of contrncl
                                                         contrnct by Pepper.
                                                                     Pepper.

       As to legal mrupracticc, Father cclaims
                   malpractice, father   laims that Pepper wns professionally
                                                               professionnUy negl igent by:

(a) not seeking
        seeki ng discovery of Doctor Nastasee
                                     Naslasee's
                                              's work papers; (b)
                                                              ( b) by not suggesti
                                                                          suggcsli ng the

relaining
rew.ining of an expert for Father to rebut Nastasee 's
                                                    ' s assessment of Father; (c) by unfairly
                                                                                     unf.."tirly

pressuring Father into a settlement agreement
                                    a.greemenl in that Pepper was failing
                                                                  ftl iling to properly

prepare for lrial
            trial and by advising father tbat there would be an worse result if he did nOt
                                  Father that

accepllhc
accept     settlement;; (d) by allowing
       the settlement          al lowing Doctor Nastasee's
                                                N:lStasee's report 10 be made pan
                                                            reporllo          part of the

record (apparentl y, at the January 22, 2008, henring); (c)
                                        2008. hearing);                 FaUler that no appeal
                                                        (e) by advising Father

cou ld be taken from the PF A order entered by Judge Reibman on March
could                                                                 t I, 2008; (f) by
                                                                Marcb 11,2008;

compromising Doctor Samuel'
                    Samuel'ss qualificalions
                              qualifications (0 testify and Doctor Samuel '=s credibil
                                             to lestify                       crt:dibility;
                                                                                       ity;


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                                           ADD16




and (g) by not
           nOl calling Doctor Samuel as a0. witness
                                            \\;tness in suppon
                                                        support of the pefition
                                                                ofthc  petition to have Doctor

Samuel conduct an evaluation.
                  evaluation.

                 rv. Father
        In Count TV. rather alleges                                            Ilepper
                            nlleges that his retainer agreement with defendant Pepper

provided, in Parogr-Jph
             ParogI"Jph 4, that "[wje
                                "[w]e (Pepper) ... can assure you that you will receive the

most conscicntiol15,
     conscientious, diligent and competent legal services available." Father al leges that
                                                                             alleges  Ibat

Pepper violated this provision of the agreement by conunitling
                                                   commitling the negligence which is

          in Count JII,
aJ lcg,cd ill
alleged            HI, which ::Jllegatiolls                        ~hc preceding purugruph.
                             ::tll egatiolls 1I have summarized in the           p<lr.lgroph.

       In his brief in opposition to Pepper's motion for summary judgmeut, Falher
                                                                 judgment. Father

withdraws his allegation of negligence for Pepper'
                                           Pepper'ss allegedly
                                                     nUcgcdly not advising Fatbcrtb:l1
                                                                           Father that no

appeal could be taken from the PFA order. Additionally. although Father's complainl
                                                                          complaint

contains the seven allegations of
                               ofnegligerlCe         Pepper that I JUSt
                                  negligence against Pqlper        just Iisled
                                                                        listed,, Father's brier
                                                                                          brief

coma ins argument in support of only three
contains                             threc of these allegations.
                                           oflhese                SpeCifically, father
                                                    IIllegations. Specifically, fathcr

pursues
pursucs only the claims that Pepper committed malpractice by railing to retain an expen to
                                    commitu:d malpraotice

rebUlthe  Naslasee report
rebut the Nastasee repon , by pressuring phtintiffto
                                         plaintiff to enter into an a.greement with Mother on
                                                                    agreement Wlt!t

January 22.
.1anu.1.ry           Hod by fai ling to call Doctor Samuel as :1a witness at the hearing on
           22, 2008, and

plaintiff's                  a n evaluation by Doctor Samuel. Thus, the allegations
            petition seeking an
plaintifrs petitlon                                                     aJlegalions of

negligence agai
negtigence      nst Pepper stated in the complaint but not addressed
           against                                         uddressed in piaintifrs
                                                                        plaintifrs brief are

waived.

       Father' s first allegation of negligence preserved against defendant Pepper is thai:
       Father's                                                                       thm:

"Pepper never suggested retnining
                        retaining an independent psychological
                                                 psychologicaJ expert to critique

Nastasoe' s Repan
Nastasce's  Rep()n andlor
                   and/or to reevaluate Abeln (Falher) to attempt to rebut Nastasce's
                                                                           Nastasee' s

un illlttering assessment of Abe
lU1fluttering                    ln''ss pa
                             Abeln                                           66(b). Complaint.)
                                           renting capabilities." (paragraph 66{b),
                                        parenting




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                                              ADD17




This allegation direclly
                directly relates to Father's second malpractice claim in which he assens
                                                                                  asserts

that:

                   Pepper unfairly pressured Abeln (Father) inlo accepttng
                                                                      uccepting an
                   unfavorable settlement, of the custody issue lhatthat would
                   otherwise have. been resolved at trial,
                                                      trinl, by both failing to
                   ndequately prepare to effectively advance Abeln's interests
                   ooequately
                                                                  thai, in the
                          tnnI and by repeatedly advising him that,
                   at the trial
                   absence of an seruement,
                                 settlement, the tenor of  the Report and the
                                                        afme
                   inexperience of the judge vinuaJly
                                               vlrtuaJly guaranteed
                                                         b'l1atanteed that Abeln
                   would lose what little physical custody of Paul he and his
                   son enjoyed.

(Paragrnph
(Paragraph 66(c), Compluint.)
                  Complaint)

        in essence, with the above allegatio
        In                                   ns, Father contends Ihal
                                   allegations,                  that Pepper conunitted
                                                                             committed

malpractice by deciding nol
                        not to auuck                  orlhe Naslasee report prior to the
                               altuck the credibility orthe

custody trial scheduled for January 22, 2008, thereby leaving
                                                      It!'o:ving Father unprepared for trial

and forcing him to reach an agreement with Mother which further limited his custody lime
                                                                                    time

with the child ,

              cJaims fail as a matter of law under the rule announced in Muhammad
        These claims

Muhammad v Strassburger,
           Strassblirger, 526 Pa. at 546, 587 A.2d at 1348, which, as I have explained,

bars a litigant who voluntarily              settlemenl from subseq
                    voluntari ly agrees to a settlement             uently bringing a
                                                             subsequently

malpractice suilllgainst
            sui t against his anorney based on !.he
                                               me tenns
                                                    teoos oflhe
                                                          of the settlement. The Superior

Court has held that Muhammad precludes 8a malpractice action where a settling
                                                                     settl ing client

merely alleges thlll settlement resulted from "a deficiency in the lawyer's exercise of his or
               that seulement

her professional judgmellt." McMahQII
    professiona1 judgment."  McMahon v\I Shea, 441 Pa.Super.
                                                   Pa.$uper. at 313, 657 A.2d at 942.

Conversely. n malpractice suit stemming from a settlement may proceed where n litigant

      tJuu the settlement res ulted
shows that                    ul ted from fraud or from the attorney's fuilure
                                                                       failure to correctly

                                               the settlement to the liti gant. id
explwn legal principles or the consequences of lhe
explain                                                                         Id


                                                  14
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                                             ADD 18




        In the case at bur,
                       bar, the evidence is undisputed that defendant Pepper. upon review of

 the Nnstasee report. concluded that Fatherwould
     Nastasee report,                Father would attain a more
                                                           morc favorable custody

arrangement through settlement thom
                               than through tria1.
                                            trial. In lieu of
                                                           of directly au.acking
                                                                       attacking the

Nastasce report.
         report, Pepper advised thaI
                                that Father's best course of action was lO
                                                                        to reach
                                                                           rench a

 temporary custody iUl'angement
                   <'lnangemcnt with Mother at the hearing on January 22, 2008, obtain a

continuance of the custody trial, and allow the Nastasec report to lose its effect over lime.
                                                                                        time.

At some point in the future, Pepper would then (and actually did) a.ttempt
                                                                  attempt [0
                                                                           to secure a new

evaluation of the parties
           oCthe  parties.. The reCord
                                record from the January 22,2008.
                                                        22, 2008. hearing reveals that

                                              un agreement with Mother as envisioned by
Father knowingly and voluntarily entered into an

       IUld previously explained by him to Father.
Pepper and

       Father now
              DOW contends that the January 22. 2008, agreement resulted from l)epper's
                                                                              Pepper' s

allegedly flawed strategy of not impeaching the Nastasec
                                                Nastasee report and instead pursuing the

settlement opLion.
           option, Patht."T
                   Father docs not allege that he entered the
                                                          rhe January 22, 20011,
                                                                          2008, agreement

as a resull
     result of fraud or Pepper's fai
                                 failure
                                     lW"c to correctly explain to him the pertinent legal

principles or the consequences of the agreement. Boiled down
                               ofrhe                            to its essence, Father is
                                                        do\oVJl!O

asserting
OtSscrting ihnt
           that the agreement resulted from "a deficiency" in Pepper's "exercise of
                                                                                 orhis
                                                                                    his

profussional judgment" in pursuing one litigation strategy over another. As the Superior
proressional

Court noted in McMahon     II.
                           1'.   Shea, the Muhammad rule operates to preclude malpractice

suits where a litigant claims his unfavorable settlement resulted merely from his lawyer's
                                                                                  lawyer' s

exercise of professional judgment. ,[hus,
                                   Thus, these malpractice claims asserted by Father are

precluded as a matter oflaw.
                      of law.

       Further, Father gave his infonned consent to the agreement entered on January 22,

2008. The
      Thc record from the hearing reveals a setting forth
                                                    fortb ofthe specifics of the custody


                                                15
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                                            ADD19




agreement. At one point. as the agreement was being set forth.
                                                        forth, Father interjected his

comment that he felt
                fell the lransponation
                         transponation provisions for Paul Christopher were too broadly

stated and that there was conflict
                          conflia: in the transportation provisions. N.T"
                                                                     N.T.. 1122108, p. 7.

Later in Ihe
Lmcr     the hearing, Fnther
                      Father responded to 11Do question
                                               questioo by the judge that he understood

provisions regarding nny planned removal of the child from Pennsylvania. N.T., 1122108,
                                                                               1122/08,

p20. Fi
p.20.   nally. Falber
      Finally, Father gave.
                      gave his approval to the custody provisions pUI        record by the
                                                                  put on the recort!

                 1122108,, p. 23.
attorneys. N.T., 1122108

       Father's
       father     slatement in his complaint (Paragraph 66(c»
              ' s statement                                    that he wns
                                                        66(c)) lhat    was "unfai rly
                                                                           "unfairly

pressured" by Pepper 10
pressured"           10 enter into
                              mto the January 22.
                                              22, 2008, agreement is contrary 10 Father's
                                                                              10


email to Pepper dated December
                      December20,2007.   [n it, Father stated
                               20, 2007. In            slaled to Pepper: "If
                                                                         "'fyou
                                                                             you are
                                                                                 8re

                                                            to
successful in getting Zamborsky (Mother's attorney) & Heidi L            custody
                                                             o discuss a cuslody

arrangemem, f would consider Heidi having title of primary physical cuslodian
arrangement.                                                        custodian wilh
                                                                              with the

follo .....40g visitation schedule (which Fathcnhen
following                                 Fatherthen set forth)." (The December 20, 2007,
                                                                                    2007.

emui
emu.i l is attached to defendant Pepper's motion for summary judgment
                                                             judg.ment as Exhibit G.)

Also, in n statement which is part
Also.                         pan of a document that Father prepared enlitled"SelfRepon
                                                                     entitled "SelfReport

         Note. dated February 20, 2008," Father wrote:
Progress Note,

              Il made the hardest decision of my life on 1122'081/22108 by
              offering Heidi
                        Hcid i the title of primary physical custodian,
                                                                 custodia.n,
              no lt because she was deserving of it but because I hoped
              that by giving her what
                                   whal she craved most.
                                                       most.., that
                                                               thai she would
              ~10p the h05ii
              stop           le acti,
                        hostile     ons and start to cooperate in a civil
                                actions                                 civil..
              responsive            that is
              resp::msive manner lhat     IS in the best interests of our son,
                                                                           son .

              furth~r demonstrated that the January
       Father further                       Jan uary 22, 2008,
                                                         2008 . agreement was
                                                                          \.Vas his

agrccment
agreement with his testimony on March 24.
                                      24, 2009. during thc
                                                       the custody trial.,
                                                                   trial, in the foll owing
                                                                                 following

exchange:



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                                             ADD20




                 Q:     And why did you agree to lhe
                                                 the order (supulnted
                                                           (stipulated
                 order of J:wuary
                          January 22, 2008)1

                  A:      Because 1I was very concerned about Nastasec's
                                    many problems \vith it. 1t was
                  report having so mllny
                  concerned thaI
                             thai I was going to have a worse-I
                                                        worse - I was not
                                                                 Ullli if
                  going to see my son at all. And I had hoped that     if I had
                  given Heidi what she was craving, that the hostility and
                  aggressiveness towards me VJOuld
                                              would end, and that shes he
                 would enable us to start CO-parClliing
                 "'IOuld                    co-parenting in the best interest
                  of our son. And I had hoped, based on the Icnns
                                                               terms oforthat
                                                                           that
                  agreement, that we would be able to use c<rpll/'cnt
                                                            co-p!U'cnt
                  counseli ng ood
                  counseling  and a parenting coordinator to resolve
                  differences and get on bener
                                         beneT grounds so lhat      foel we
                                                           that in fnct
                  would
                 'w      maxim ize the amount of lime
                    ould maximize                 time that both of us
                 shared W'ith
                         with our son,
                                   son

N.T ...• 5124/09.
         5(24/09. p.11 O.

        for nil of these reasons, Father cillim
        rar all                          clllim of malpractice based on Pepper's
                                                                        Pepper' s allegedly

                          ngreement of January
forcing him to accept the agreement    Janunry 22, 2008, locks
                                                         lacks merit .

        The final malpractice allegation against Pepper is lhol
        Theiinal                                                reppcr was negligent in not
                                                           that f'eppcr

calling
call                   OT Father as witnesses on October 8, 2008.
     ing Doctor Samuel or                                   200&, wben
                                                                  when 1I heard
                                                                          beard the petition

                to be evaluated
for the parties (0    cvaluated by Doctor Samuel. According to Father, the fai1ul'c
                                                                           railul'c to call

either or both of these witnesses "significanlly           the. ease with whieh
                                  "significantly increased the            which Heidi,

represenung                                                                 VDcate its original
             ber.;elf, subsequently succeeded in getting the trial court to vacate
representing hcrself.

order authorizing the new evaluation," (Pnmgraph 66(g), Complaint)
                          evaluation." (Pamgraph        Complaint.)

        There is no evidence of malpruc\ice
                                malpractice by Pepper from his presellling
                                                               prcsellling the petilion
                                                                               petition for

the evaluation on October 8, 2008. J
                                   J controlled lbal
                                                that heming,
                                                     hearing. I decided the petitioD
                                                                            petition based

     the offers of proof from counsel and their arguments. A review of
upon thc                                                               the notes of
                                                                    oCtbe

                  mat
testimony from that hearing
                    heating reflects Ihnt
                                     thnt Pepper offered to present
                                                            prcsenl Doctor Samuel or Fathcr
                                                                                     Father




                                                 17
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                                           ADD21




or bOlh.                                   iOllial reluctance to
   both. Pepper's presentation overcame my initial            to have another
                                                                      onother

psychologic~d evaluation.
psychological evaluution. IJ granted Ihe
                                     the petition.
                                         petition.

          Mother's
          Mother                                                          16.2008,
                 's motion for reconsideration which was filed on October 16, 2008, was

heard all                         Lhal hearing by indicating
      on November 13,2008. (began that                       thm I wus
                                                  indicAting thaI  WIlS second-
                                                                        second·

                                un evaluation by Doctor
guessing the wisdom of allowing an               Doclor Samuel. After add
                                                                      t1dditional
                                                                          itional

IlTguments by the attorneys,
arguments         auorneys. I entered an order cancelling the evR,ilUltion.
                                                              evaluation. However, 1 made

         that I was denying Ihe
it clear lita(              the request for
                                        fOT an eva luation without prejudice and 1 explained
                                               evaluation

how the court would handle schedu li ng if the evaluation were granted
                           scheduling                          grunted at
                                                                       al a& later date.
                                                                             IUler-date.

There were no further requests for an evaluation.

       There is no basis for afI legal malpractice action on the topic of defendant Pepper's
                                                                       ofdefe.ndanL

            nn evaluation by Doctor
request for an               DOCIOT Samuel. nOI when Pepper succeeded in
                                    Sumuel, nal                       m getting Ihe
                                                                                the

coun 10
C0W1 to   allow the evnluaLion
                    evaluation under authorized prooedures             court. By the WilY,
                                                procedures used by the eourt.        way,

Ihe
the allegation in Paragraph 66(g) of the compliliOllhat
                                         complaint thm l'epper'
                                                        Pepper'ss failure to call witnesses at
                                                                                            flI


[he
the October 8 hearing "significantly increased" Mother's gening the trial court to cancel

    evaluation by way of
the evniu.alion          reconsideration isjust
                      ofreconsiderution         not accurate.
                                         iSjUSl nOI

       Father
       Fruher bases the breach    con1nlct claim against derendnnt
                        breuch of COotnlct               defendant Pepper On
                                                                          on his

negligence claims. Because
                   Bec.ause there is no factual or legal basis
                                                         bll$is to the    legal lons of
                                                                       allegations
                                                                   tbe al

malpractice, II enler
malpractIce,           sununary judgment for Pepper on the breach of contract action as well .
                eIlier summary




January 25, 2012
JlUlUary




                                               18
