J-A04021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALDIS RUTYNA AND MARY JANE                    IN THE SUPERIOR COURT OF
RUTYNA,                                             PENNSYLVANIA

                        Appellants

                   v.

WILLIAM S. SCHWEERS, JR., AND
HARRINGTON, SCHWEERS, DATILLO &
MCCLELLAND, P.C.,

                        Appellees                 No. 1170 WDA 2014


                  Appeal from the Order of July 14, 2014
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD 07-025594


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 1, 2015

     Appellants, Aldis Rutyna and Mary Jane Rutyna, appeal from the order

entered on July 14, 2014, which granted the motion for summary judgment

that was filed on behalf of William S. Schweers, Jr. (hereinafter “Attorney

Schweers”) and Harrington, Schweers, Datillo & McClelland, P.C. (hereinafter

“the Law Firm”). We vacate the trial court’s order and remand.

     We previously explained the underlying facts of this case. We quote,

in part, from our prior factual summary:

        On May 18, 2006, [Attorney] Schweers filed a medical
        malpractice complaint on behalf of [Appellants, naming, as
        defendants, William P. Donaldson, III, M.D. and the
        University of Pittsburgh Medical Center – Presbyterian. The
        complaint alleged] that Mr. Rutyna was injured as a result
        of negligence during surgery. After [Attorney] Schweers did
*Retired Senior Judge assigned to the Superior Court.
J-A04021-15


        not file a certificate of merit, a judgment of non pros was
        entered and the case [was] dismissed.

        On December 5, 2007, [Appellants] filed a complaint
        against [Attorney Schweers and the Law Firm]. In that
        complaint, [Appellants] alleged that [Attorney] Schweers
        committed professional [malpractice] when he failed to file
        the required certificate of merit, resulting in the entry of a
        non pros judgment against [Appellants]. [Appellants] also
        alleged that [Attorney] Schweers made misrepresentations
        to them to conceal his misconduct and to prevent
        [Appellants] from seeking a different attorney. In their
        complaint, [Appellants] raised claims of professional
        negligence,    fraudulent    misrepresentation,      negligent
        misrepresentation, breach of fiduciary duty, and breach of
        contract against [Attorney] Schweers. [Appellants] alleged
        respondeat superior/vicarious liability and Unfair Trade
        Practices and Consumer Protection Law violations against
        the Law Firm. A certificate of merit for each defendant was
        attached to the complaint.

        [Attorney Schweers and the Law Firm] filed preliminary
        objections. On January 18, 2011, [Appellants] filed an
        amended complaint. On January 19, 2011, the trial court
        struck the amended complaint, and dismissed with
        prejudice from the original complaint the counts of
        fraudulent and negligent misrepresentation and breach of
        fiduciary duty against [Attorney] Schweers, and violations
        of the Unfair Trade Practices and Consumer Protection Law
        against the Law Firm.        The order also struck several
        paragraphs from the complaint that alleged that [Attorney]
        Schweers made misrepresentations to [Appellants.           The
        result of the trial court’s order was that only Appellants’
        claims for professional negligence, breach of contract, and
        vicarious liability remained pending before the trial court].

Rutyna v. Schweers, 100 A.3d 325 (Pa. Super. 2014) (unpublished

memorandum) at 1-3 (internal footnotes omitted) (internal italics added).

     On September 11, 2012, Attorney Schweers and the Law Firm filed a

motion for summary judgment.         As the movants claimed, during the



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J-A04021-15



underlying medical malpractice action, Attorney Schweers sought to obtain

an expert medical report from Dr. Lance Perling.         However, the movants

claimed, Dr. Perling “prepared a written report which yielded a negative

opinion[; in particular, Dr. Perling concluded] that Dr. Donaldson and UPMC

were not responsible for [Mr. Rutyna’s] condition.”1,    2
                                                             Motion for Summary

Judgment, 9/11/12, at ¶ 11 (internal emphasis omitted).

       Attorney Schweers and the Law Firm noted that, for Appellants to

prevail on their legal malpractice claim, Appellants must be able to prove the

following three elements:        “(1) [t]he employment of the attorney or other

basis for duty; (2) [t]he failure of the attorney to exercise ordinary skill and

knowledge; and (3) [t]hat such negligence was the proximate cause of

damage to the plaintiff.” Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989); see

Motion for Summary Judgment, 9/11/12, at ¶ 35.                 According to the

movants, since Attorney Schweers could not obtain a favorable expert

opinion from Dr. Perling to support the underlying medical malpractice

____________________________________________


1
  Attorney Schweers and the Law Firm attached a copy of Dr. Perling’s letter
to their summary judgment motion.       Motion for Summary Judgment,
9/11/12, at “Exhibit 5.”
2
  Within their summary judgment motion, Attorney Schweers and the Law
Firm claimed: “[Attorney Schweers and the Law Firm] have now obtained
two negative expert reviews on the case, one oral and one in writing.”
Motion for Summary Judgment, 9/11/12, at ¶ 24. However, the summary
judgment motion did not specify who provided the “oral” expert review –
and there was no documentation to support the statement regarding an
“oral” expert review.



                                           -3-
J-A04021-15



action, Attorney Schweers could not file a certificate of merit in the

underlying case. Therefore, the movants claimed, Appellants are unable to

sustain their burden of production in this legal malpractice case, as

Appellants cannot establish that Attorney Schweers failed to “exercise

ordinary skill and knowledge” when he failed to file a certificate of merit in

the underlying medical malpractice case. Id. at ¶¶ 41-42.

      Moreover, within the summary judgment motion, Attorney Schweers

and the Law Firm claimed that Appellants are unable to prove that the

alleged negligence was the proximate cause of their damages, as:

“[Appellants] have not presented any particular piece of evidence to prove

that [Attorney Schweers] did not obtain at least one medical expert report”

and it was speculative to conclude that Attorney Schweers should have

found “a doctor that was willing to opine that [Appellants’] case had merit.”

Id. at ¶¶ 46-54.

      Finally, Attorney Schweers and the Law Firm claimed that they were

entitled to summary judgment because Appellants refused to pay for their

case to be reviewed by other experts. See id. at ¶¶ 16-17.

      On December 11, 2012, Appellants filed their response to the

summary judgment motion. Within their response, Appellants: denied the

movants’ declaration that Dr. Perling’s review constituted a comprehensive,

expert review of their claim, as Dr. Perling had reviewed the case before all

of Mr. Rutyna’s relevant medical information was collected; claimed that

Attorney Schweers “never submitted [Mr. Rutyna’s] medical records and

                                    -4-
J-A04021-15



other documentation to any expert medical witness or requested a case

evaluation therefrom;” claimed that “[Attorney Schweers’] failure to file a

certificate of merit was not the result of not being able to find a suitable

medical review[, i]nstead, it was the result of [Attorney Schweers’] failure to

adequately seek one;” asserted that Attorney Schweers had actively misled

them as to the status and condition of their case; claimed that Attorney

Schweers promised them that he would “handle” the fees associated with

procuring an expert opinion; and, claimed that Attorney Schweers and the

Law Firm promised to pay all of the litigation costs associated with the

medical malpractice action.3        Appellants’ Response to Motion for Summary

Judgment, 12/11/12, at ¶¶ 11, 16-17, 22, 31, 32, 38, 41, 51, 52, 53, and

54.

       Further, even though Attorney Schweers and the Law Firm did not

move for summary judgment on the ground that Appellants failed to produce

an expert medical report to support their action, Appellants attached an

expert medical report to their response.         The report was authored by Dr.

Mark R. Foster and, within the report, Dr. Foster opined that Dr. Donaldson

had deviated from the standard of care during and following Mr. Rutyna’s




____________________________________________


3
  Appellants also denied the movants’ unsupported claim that Attorney
Schweers “obtained two expert reports.” Appellants’ Response to Motion for
Summary Judgment, 12/11/12, at ¶ 41.



                                           -5-
J-A04021-15



surgery, and that the deviations from the standard of care caused harm to

Mr. Rutyna. Specifically, Dr. Foster opined:

        Dr. Donaldson’s care [was] significantly below the standard
        of care. First, he damaged the important lower sacral
        nerves, as they passed by his operative sight without
        documenting – or apparently being aware of – the damage
        that he had done. Not only was Dr. Donaldson unable to
        describe what happened, but he does not even describe the
        closure of the dural net, of which he certainly was aware.
        Further, he seems to be taken by surprise when the January
        29, 2004 urinary retention presents itself. Although the
        discharge sheet talks about a transient neurologic injury,
        this is a permanent injury which Dr. Donaldson did not
        recognize when he caused the injury. He still did not
        recognize the injury on [] January 29, 2004 and then
        attributed the problem to operative stretch. An MRI was
        performed to rule out cauda equine syndrome because Dr.
        Donaldson still did not recognize the neurologic permanent
        deficit that he had caused.

        Consequently, Dr. Donaldson not only deviated from the
        standard of care during surgery, he also deviated in the
        standard of care by failing to recognize and care for the
        injury caused. He further suggests in his notes (some of
        which are progress notes from the same day as the
        incident) that muscle strength was five out of five, but the
        resident notes demonstrate some failure of full recovery
        despite decadron, which was given for the motor weakness
        (not even recognizing the neurologic damage eliminating
        continence), and the admission to physical medicine and
        rehabilitation notes demonstrate “a significant diminish of
        the right extensor halluces longus, EHL which is L5 nerve
        root and would be involved with the L4-5 disc” as being the
        grade of 2 out of 5, which is less than anti-gravity strength,
        as anti-gravity strength is 3 out of 5.

        To a reasonable degree of medical certainty, Dr. Donaldson
        caused an intraoperative dural leak which damaged the
        sacral nerve roots. This damage to the sacral nerve roots
        caused permanent neurologic damages and eliminated
        bowel and bladder continence, which were not even

                                    -6-
J-A04021-15


        recognized by the attending surgeon performing the
        procedure. In addition, prolonged retraction damaged the
        L3 nerve roots, which had been normal on EMG,
        approximately six months later.

Report of Dr. Mark R. Foster, dated 2/28/08, at 2-3 (attached as “Exhibit 13”

to Appellants’ Response to the Motion for Summary Judgment).

      Within Appellants’ response, Appellants also averred that, after their

medical malpractice action was dismissed, they retained a new attorney and

their new counsel “was easily able to obtain” a favorable expert medical

report to support their medical malpractice claim. Appellants’ Response to

Motion for Summary Judgment, 12/11/12, at ¶ 52.

      Apparently, oral argument on the summary judgment motion occurred

on December 17, 2012.       See Scheduling Order, 11/21/12, at 1. Following

oral argument, counsel for Attorney Schweers and the Law Firm hand-

delivered a letter to the trial judge. In relevant part, the letter reads:

        I am asking the court to grant summary judgment for
        [Appellants’] failure to proffer an expert report establishing
        a breach of a standard of care by the lawyer. This is a 2007
        docket case (six years old) and [Appellants] have had
        ample time to secure an expert to establish a breach of a
        standard of care.

Attorney Schweers’ and the Law Firm’s Letter to the Trial Judge, dated

12/17/12, at 1.

      Even though Attorney Schweers and the Law Firm did not explicitly

move for summary judgment on the ground that Appellants “fail[ed] to

proffer an expert report establishing a breach of a standard of care by the

lawyer,” the trial court signed the following order:


                                      -7-
J-A04021-15



        AND NOW, to wit, this 22nd day of [February], 2013, upon
        consideration of [Attorney Schweers’ and the Law Firm’s]
        Motion for Summary Judgment it is hereby ORDERED,
        ADJUDGED and DECREED that [Appellants are to] provide
        an expert report as to liability within 45 days. Failure to do
        so will result in the grant of summary judgment on praecipe
        of [Attorney Schweers and the Law Firm].

Trial Court Order, dated 2/22/13, at 1.

      As this Court has explained:

        On April 9, 2013, [Attorney Schweers and the Law Firm]
        filed a praecipe to enter summary judgment, because
        [Appellants] had [allegedly] not complied with the [trial
        court’s] February 22[, 2013] order. On April 10, [2013,
        Appellants’] counsel delivered a letter to the [trial] court,
        indicating that [Appellants’ counsel had not] received the
        February 22[, 2013] order. On April 30, 2013, after hearing
        argument, the [trial] court entered summary judgment in
        favor of [Attorney Schweers and the Law Firm]. On May 3,
        2013, [Appellants] filed a notice of appeal [to the Superior
        Court and, within their brief to this Court, Appellants
        claimed that the trial court erred in granting summary
        judgment to Attorney Schweers and the Law Firm because
        “the [trial court] docket did not reflect that notice was given
        of the entry of the order directing [Appellants] to provide an
        expert report, and [Appellants], in fact, never received the
        order.”]

Rutyna v. Schweers, 100 A.3d 325 (Pa. Super. 2014) (unpublished

memorandum) at 4 (internal footnotes and some capitalization omitted)

(internal italics added).

      On March 31, 2014, this Court vacated the trial court’s summary

judgment order and remanded the case for further proceedings.             As we

explained, “[o]ur review of the docket show[ed] that there [was] no notation

[on the docket, indicating that the February 22, 2013] order was sent to the


                                     -8-
J-A04021-15



parties[,] as required by [Pennsylvania Rule of Civil Procedure] 236.” Id. at

8.   Therefore, we held, since the February 22, 2013 order was never

properly entered, the grant of summary judgment to Attorney Schweers and

the Law Firm was erroneous. Id. at 9.

      On remand, Appellants promptly filed an expert legal report to support

their legal malpractice claim. The report, which was authored by Dennis M.

Blackwell, Esquire, declared in relevant part:

        [] based on my experience, it is my opinion, expressed to a
        reasonable degree of professional certainty, that the
        standard of care prevailing in Western Pennsylvania in 2006
        required that an attorney handling a medical malpractice
        case for a client make some effort to obtain an expert
        witness to support a certificate of merit, and that an
        attorney that did not contact so much as a single potential
        expert had breached that duty of care.

        It is also my opinion, expressed to a reasonable degree of
        professional certainty, that [] the standard of care
        prevailing in Western Pennsylvania in 2006 required that an
        attorney handling a medical malpractice case for a client
        contact more than one potential expert to support a
        certificate of merit, and that an attorney that only contacted
        a single potential expert had breached that duty of care.

        It is critical that I clarify what my opinion IS NOT. You did
        not ask me to opine, nor do I opine that [] the standard of
        care prevailing in Western Pennsylvania in 2006 required
        that an attorney handling a medical malpractice case for a
        client continue to search for an expert to support a
        certificate of merit, until he finds one.

        On a related issue, it is my opinion, expressed to a
        reasonable degree of professional certainty, that [Attorney]
        Schweers’ conduct in terms of his failure to promptly and
        accurately report to his clients, [Appellants], developments



                                     -9-
J-A04021-15


         in the search for an expert, did not meet the applicable
         standard of care.

Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6 (emphasis in

original).

      On April 17, 2014, Attorney Schweers and the Law Firm filed a self-

titled “renewed motion for summary judgment.” Within this filing, Attorney

Schweers and the Law Firm claimed that Attorney Blackwell’s expert legal

report was insufficient to defeat their summary judgment motion because:

1) “no legal authority exists to support [Attorney Blackwell’s] assertion . . .

that the standard of care in Pennsylvania in 2006 required an ‘attorney

handling a medical malpractice case for a client [to] contact more than one

potential expert to support a certificate of merit, and that an attorney that

only contacted a single potential expert had breached that duty of care;’” 2)

Attorney Blackwell did not opine that “the standard of care prevailing in

Western Pennsylvania in 2006 required that an attorney handling a medical

malpractice case for a client continue to search for an expert to support a

certificate of merit, until he finds one;” and, 3) Attorney Schweers “obtained

. . . two expert reviews that did not support [Appellants’] position.”

Renewed Motion for Summary Judgment, 4/17/14, at ¶¶ 40-54.

      By order entered on July 14, 2014, the trial court again granted

summary judgment against Appellants and in favor of Attorney Schweers

and the Law Firm.     Within the trial court’s memorandum order, the trial

court declared that Attorney Blackwell’s expert legal report was insufficient

to defeat the summary judgment motion because Attorney Blackwell refused

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J-A04021-15



to opine that “the standard of care prevailing in Western Pennsylvania in

2006 required that an attorney handling a medical malpractice case for a

client continue to search for an expert to support a certificate of merit, until

he finds one.” Trial Court Order, 7/14/14, at 2.

       Appellants filed a timely notice of appeal and Appellants now raise the

following claims to this Court:4

         [1.] Did the [trial] court err in citing only a small portion of
         the expert report, when a reading of the report as a whole
         clearly set forth sufficient grounds to support a finding that
         [Attorney] Schweers failed to comply with the standard of
         care?

         [2.] Did the trial court commit reversible error when, in
         deciding [the] summary judgment motion, it removed from
         the fact-finder the question of the weight to be accorded
         [Appellants’] legal expert opinion and purported to make
         that determination, itself?

         [3.] Did the [trial] court err in making certain findings of
         fact, when those facts had clearly been disputed by
         [Appellants]?

Appellants’ Brief at 4 (some internal capitalization omitted).

       We note:

         Our scope of review of a trial court’s order granting or
         denying summary judgment is plenary, and our standard of
         review is clear: the trial court’s order will be reversed only


____________________________________________


4
  The trial court did not order Appellants to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), and Appellants did not file a Rule 1925(b) statement on
their own initiative.



                                          - 11 -
J-A04021-15


         where it is established that the court committed an error of
         law or abused its discretion.

         Summary judgment is appropriate only when the record
         clearly shows that there is no genuine issue of material fact
         and that the moving party is entitled to judgment as a
         matter of law. The reviewing court must view the record in
         the light most favorable to the nonmoving party and resolve
         all doubts as to the existence of a genuine issue of material
         fact against the moving party. Only when the facts are so
         clear that reasonable minds could not differ can a trial court
         properly enter summary judgment.

Englert v. Fazio Mech. Serv.’s, Inc., 932 A.2d 122, 124 (Pa. Super. 2007)

(internal citations omitted).

      Appellants claim that the trial court erred when it granted the

summary judgment motion that was filed by Attorney Schweers and the Law

Firm. As Appellants first claim, in granting the summary judgment motion,

the   trial   court   necessarily   “disregarded   [the]   opinions   expressed   in

[Attorney] Blackwell’s [expert] report that unquestionably support[ed]

[Appellants’] claims.”     Appellant’s Brief at 20 (some internal capitalization

omitted). According to Appellants, the trial court attempted to support its

order by citing to a superfluous statement within Attorney Blackwell’s expert

report and the trial court then erroneously based its order upon the

superfluous statement. Id. We agree.

      As this Court has explained:

         Our Supreme Court has held that “a legal malpractice action
         in Pennsylvania requires the plaintiff to prove that he had a
         viable cause of action against the party he wished to sue in
         the underlying case and that the attorney he hired was
         negligent in prosecuting or defending that underlying case
         (often referred to as proving a ‘case within a case’).”

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J-A04021-15


            Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998).
            To prove [a legal] malpractice action, the plaintiff “must
            initially establish by a preponderance of the evidence that
            he would have recovered a judgment in the underlying
            action.” Id. “It is only after the plaintiff proves he would
            have recovered a judgment in the underlying action that
            [he] can then proceed with proof that the attorney he
            engaged to prosecute . . . the underlying action was
            negligent in the handling of the underlying action and that
            negligence was the proximate cause of the plaintiff’s loss
            since it prevented [him] from being properly compensated
            for [his] loss.” Id. To establish [the] legal malpractice
            claim, the plaintiff must satisfy the following three-prong
            test[:]

               1) [E]mployment of the attorney or other basis for a
               duty;

               2) the failure of the attorney to exercise ordinary skill
               and knowledge; and

               3) that such negligence was the proximate cause of
               damage to the plaintiff.

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

corrections omitted).

          Within   Appellants’   complaint,   Appellants   alleged   that   Attorney

Schweers was professionally negligent because he failed to timely file a

certificate of merit in the underlying medical malpractice case and because,

during the underlying action, Attorney Schweers misrepresented the status

of Appellants’ case “to conceal his misconduct and/or preclude [Appellants]

from retaining another attorney.” Appellants’ Complaint, 12/5/07, at ¶¶ 17-

19. At the close of discovery, Attorney Schweers and the Law Firm filed a

summary judgment motion, wherein they raised the following grounds for

relief:     Attorney Schweers obtained a negative expert opinion from Dr.

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J-A04021-15



Perling and, therefore, Attorney Schweers was unable to file a certificate of

merit in the underlying medical malpractice action; Attorney Schweers

obtained a second negative expert opinion, from an unidentified source, in

the underlying action; it was speculative to conclude that Attorney Schweers

should have found “a doctor that was willing to opine that [Appellants’

medical malpractice] case had merit;” and, Appellants refused to pay for

their medical malpractice case to be reviewed by other experts.

     Appellants responded to the summary judgment motion by: claiming

that Dr. Perling’s review of the case was necessarily incomplete, as Dr.

Perling had reviewed the case before all of Mr. Rutyna’s relevant medical

information   was   collected;   denying     Attorney   Schweers’   unsupported

statement that he received a second negative expert opinion in the medical

malpractice case; and, claiming that Attorney Schweers promised them that

he would advance the fees necessary to obtain further expert medical

reviews and that the firm would pay for all litigation expenses.       Further,

Appellants filed an expert legal report, authored by Attorney Blackwell,

wherein Attorney Blackwell declared:

        [] based on my experience, it is my opinion, expressed to a
        reasonable degree of professional certainty, that the
        standard of care prevailing in Western Pennsylvania in 2006
        required that an attorney handling a medical malpractice
        case for a client make some effort to obtain an expert
        witness to support a certificate of merit, and that an
        attorney that did not contact so much as a single potential
        expert had breached that duty of care.




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J-A04021-15


         It is also my opinion, expressed to a reasonable degree of
         professional certainty, that [] the standard of care
         prevailing in Western Pennsylvania in 2006 required that an
         attorney handling a medical malpractice case for a client
         contact more than one potential expert to support a
         certificate of merit, and that an attorney that only contacted
         a single potential expert had breached that duty of care.

         It is critical that I clarify what my opinion IS NOT. You did
         not ask me to opine, nor do I opine that [] the standard of
         care prevailing in Western Pennsylvania in 2006 required
         that an attorney handling a medical malpractice case for a
         client continue to search for an expert to support a
         certificate of merit, until he finds one.

         On a related issue, it is my opinion, expressed to a
         reasonable degree of professional certainty, that [Attorney]
         Schweers’ conduct in terms of his failure to promptly and
         accurately report to his clients, [Appellants], developments
         in the search for an expert, did not meet the applicable
         standard of care.

Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6 (emphasis in

original).

      Notwithstanding    the   fact   that     the   above-quoted,   penultimate

paragraph in Attorney Blackwell’s report was superfluous, the trial court

based its summary judgment ruling upon that superfluous statement.

Specifically, the trial court granted Attorney Schweers’ and the Law Firm’s

motion for summary judgment because Attorney Blackwell did not render

an opinion on whether “the standard of care prevailing in Western

Pennsylvania in 2006 required that an attorney handling a medical

malpractice case for a client continue to search for an expert to support a

certificate of merit, until he finds one.” Trial Court Opinion, 7/14/14, at 2.




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J-A04021-15



       The trial court’s reasoning in this case was erroneous, given that

Attorney    Blackwell’s     statement      in   the   above-quoted,   second-to-last

paragraph neither added to nor detracted from the opinions contained in his

expert report. Further, when Attorney Blackwell’s actual, stated opinions in

the expert report are combined with Appellants’ response to the summary

judgment motion, it is evident that the trial court erred when it granted

summary judgment to Attorney Schweers and the Law Firm. Indeed, when

the record is viewed in the light most favorable to Appellants, the record

demonstrates that Attorney Schweers contacted, at most, one expert – Dr.

Perling – to support the certificate of merit in the underlying case.5

However, as Attorney Blackwell opined, when an attorney contacts only one

potential expert to support a certificate of merit and then receives a negative

response, the attorney breached the standard of care he owes to his client.

In the words of Attorney Blackwell:

         the standard of care prevailing in Western Pennsylvania in
         2006 required that an attorney handling a medical
         malpractice case for a client contact more than one
         potential expert to support a certificate of merit, and that
         an attorney that only contacted a single potential expert
         had breached that duty of care.

____________________________________________


5
 As stated, the record, viewed in a light most favorable to the Appellant,
leads to the conclusion that Attorney Schweers contacted only one potential
medical expert. Attorney Schweers and the Law Firm refute this and claim
that a second expert was contacted (a factual allegation denied by the
Appellants). Thus, at a minimum, a genuine issue of material fact exists
which makes summary judgment inappropriate.



                                          - 16 -
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Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6.

         Attorney Blackwell’s stated opinion clearly demonstrates that there is a

genuine issue of material fact as to whether Attorney Schweers breached his

duty of care when he contacted only one potential expert to support the

certificate of merit. The trial court’s ruling to the contrary was erroneous.6,
7, & 8




____________________________________________


6
  The trial court also erred in granting summary judgment to Attorney
Schweers and the Law Firm, as Appellants’ professional malpractice claim
was not limited to the single contention that Attorney Schweers was
negligent in contacting only one potential expert. Rather, within Appellants’
complaint, Appellants also claimed that Attorney Schweers was
professionally negligent because he misrepresented the status of Appellants’
case “to conceal his misconduct and/or preclude [Appellants] from retaining
another attorney.” Appellants’ Complaint, 12/5/07, at ¶¶ 17-19. Moreover,
Appellants claimed that they suffered harm as a result of Attorney Schweers’
misrepresentations and concealments and Appellants attached an expert
report from Attorney Blackwell, wherein Attorney Blackwell specifically
opined that Attorney Schweers’ misrepresentations and concealments
constituted a breach of an attorney’s duty of care.         Thus, Appellants
established that there was a genuine issue of material fact as to whether
Attorney Schweers was professionally negligent when he, allegedly,
misrepresented the status of Appellants’ case “to conceal his misconduct
and/or preclude [Appellants] from retaining another attorney.” Id.
7
  According to Appellants’ second claim on appeal, the trial court erred when
it “refus[ed] to defer to the conclusions set forth in [Appellants’] expert
report.” Appellants’ Brief at 20-22. We will not independently discuss this
claim, as it is subsumed within Appellants’ first claim on appeal. See also
Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010) (“[i]t has
long been Pennsylvania law that, while conclusions recorded by experts may
be disputed, the credibility and weight attributed to those conclusions are
not proper considerations at summary judgment; rather, such
determinations reside in the sole province of the trier of fact”).




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      Further, although this Court may affirm a trial court’s ruling upon any

basis, in this case there was simply no basis upon which the trial court could

have granted the summary judgment motion that was filed by Attorney

Schweers and the Law Firm. Therefore, we vacate the trial court’s order and

remand for further proceedings.

      Order vacated. Case remanded. Jurisdiction relinquished.

      Judge Bowes joins this memorandum.

      Judge Strassburger files a Concurring Statement.




                       _______________________
(Footnote Continued)
8
  Within Appellants’ third claim on appeal, Appellants contend that the trial
court is biased against them. Appellants thus request this Court to instruct
that, on remand, a different trial judge hear the case. Appellants’ Brief at
28. In support of their claim, Appellants note that, within the trial court’s
factual recitation to this Court, the trial court acted in contravention of its
standard of review by purporting to resolve two disputed factual issues
against Appellants and in favor of Attorney Schweers and the Law Firm. Id.
at 22-24. Further, Appellants note: that the trial court initially “dismissed
[Appellants’ c]omplaint because [Appellants] had not filed an expert report,
notwithstanding [Appellants’ counsel’s] repeated protests that they had
never received the order telling them to do so and additionally pointing out
that the docket did not reflect that the order had been mailed” and that the
trial court “complete[ly] disregard[ed] the opinions stated in [Attorney
Blackwell’s] expert report in favor of a non-opinion found in that report, as a
basis for dismissing this case a second time.”            Id. at 27 (internal
capitalization omitted). However, this Court lacks authority to remove a
judge from a case. Such power rests solely with our High Court. Reilly v.
Southeastern Pa. Transp. Auth., 489 A.2d 1291 (1985). See also
Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006).



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J-A04021-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:4/1/2015




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