J-A27038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    AMY B. KLEIN AND WENDY BECK AS             :  IN THE SUPERIOR COURT OF
    CO-EXECUTORS OF THE ESTATE OF              :        PENNSYLVANIA
    EDGAR A. WAITE AND                         :
    INDIVIDUALLY,                              :
                                               :
                       Appellants              :
                                               :
                v.                             :
                                               :
    ALAN D. SILVERMAN, ESQUIRE AND             :
    GOLD, SILVERMAN, GOLDENBERG &              :
    BINDER,                                    :
                                               :
                      Appellees                : No. 330 EDA 2019


               Appeal from the Order Entered December 20, 2018
              in the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2015-10607

BEFORE:      BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED FEBRUARY 10, 2020

        Amy B. Klein and Wendy Beck (collectively, Appellants),              both

individually and as co-executors of the estate of Edgar A. Waite, appeal from

the order entered on December 20, 2018, which granted summary judgment

in favor of Alan D. Silverman, Esquire and Gold, Silverman, Goldenberg and

Binder (collectively, Appellees) in this legal malpractice case. After review,

we reverse the order granting summary judgment.

              For over [40] years, Attorney Silverman was the attorney
        for Waite. Attorney Silverman provided legal advice for Waite’s
        business interests and for Waite’s estate planning matters.
        Attorney Silverman’s last [face-to-face] contact with Waite was in
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A27038-19


     the mid to late 1990s. Appellants are the daughters of Waite and
     his first wife, who [is] deceased. Waite and his second wife, Janet
     Waite [(“Mrs. Waite”)], were married for approximately [30] years
     before Waite’s death in August 2013. The case sub judice arises
     from the May 31, 2013, sale of two income producing properties,
     a Midas Muffler and a 7-Eleven Store, (“Commercial Properties”),
     owned by Waite.

           In 2001, Waite established the Edgar A. Waite, Jr. 2001
     Family Trust. The 2001 Family Trust reflected Waite’s intention to
     provide for [Mrs. Waite] during her lifetime with income derived
     from assets placed in the trust, and upon Mrs. Waite’s death, the
     remainder principal would be distributed to separate trusts for the
     benefit of Waite’s issue (daughters and granddaughters of his first
     marriage). On January 30, 2006, Waite executed a Last Will and
     Testament.      Appellants do not dispute that Waite had
     testamentary capacity in 2006. The Will provided, inter alia, at
     ITEM 3:

           Specific Bequests--C. "If my wife, JANET WAITE,
           survives me, I direct that my interests in the following
           parcels of real estate: 120 South York Road, Hatboro,
           PA 19040, (Red Barn, Parcel No. 08-00-06661-009);
           1790 Easton Road, Doylestown, PA 18901, (Midas
           Muffler, Parcel No. 09-019003); and 1796 East Road,
           Doylestown, PA 18901, (7-Eleven, Parcel No. 09-
           019004), if owned by me at my death, be held in
           further trust for the benefit of my said wife upon
           the following terms and condition [(sic)]:

           (1)   Trustee shall pay the entire net income
                 therefrom, in quarterly or more convenient
                 installments, to my wife, JANET WAITE, during
                 her life.

     [See Amended Complaint, 7/17/2017, Exhibit C (emphasis
     added)]. The Will provided that if Waite owned certain commercial
     properties at the time of his death, the income from those
     properties would be paid to the marital trust for the benefit of his
     wife, and that during her lifetime, she was to receive the entire
     income from those properties. Mrs. Waite had the ability to invade
     the principal for her welfare, care, maintenance and support.
     Appellants were the residuary beneficiaries of the marital trust.
     Attorney Silverman did not draft the January 30, 2006 Will, but

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J-A27038-19


     he was aware of the terms and on two separate occasions he
     drafted two codicils to the Will.

           In August 2006, Waite was diagnosed with Alzheimer’s
     disease. In 2007, Attorney Silverman drafted a durable power of
     attorney [(POA)] in which Waite appointed his wife as his agent
     and appointed his daughter as the alternative agent. The durable
     [POA] did not comply with statutory requirements.

            As the disease progressed in 2012, it became necessary to
     obtain nursing services in the Waite home to assist Mrs. Waite in
     caring for her husband. At this time, the Waites did not have
     sufficient income to pay the substantial additional expenses, their
     living expenses and other, multiple outstanding debts.
     Eventually, costly [24] hour care became necessary.

           In early 2012, Mrs. Waite consulted [Attorney Silverman] as
     to whether she could sell the Commercial Properties to pay
     medical bills related to Waite’s healthcare. Attorney Silverman
     advised her that this was possible and it was determined that the
     Commercial Properties would be sold. Mrs. Waite did not seek
     financial or tax advice from Attorney Silverman, and there is no
     evidence that any such financial advice was provided by Attorney
     Silverman.

           Mrs. Waite accomplished the sale of the Commercial
     Properties as attorney in fact for Waite. As mentioned above,
     Waite signed a durable [POA] appointing Mrs. Waite as his
     attorney in fact in 2007. Said 2007 [POA], drafted by Attorney
     Silverman, did not include the statutory notice. Thus, the title
     company required a new [POA] form for each property.

            Attorney Silverman did not make any inquiry as to Waite’s
     mental capacity to sign but emailed Mrs. Waite that, “[Waite] had
     to [be] able to comprehend what he is signing for the POA to be
     valid.” Attorney Silverman forwarded the [POAs] prepared by the
     title company to Mrs. Waite for Waite’s signature, and the powers
     were signed in March 2013, at the time of closing of the sale.

          The Commercial Properties’ sales price was $1.8 million, and
     after expenses, realized $1,596,475.24[.] Because the
     Commercial Properties were sold during Waite’s lifetime, the sale
     was subject to capital gains tax. On the Waites’ 2013 federal and


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J-A27038-19


       state tax returns, capital gains tax (plus underpayment penalty)
       totaled $414,791.

              Waite passed away on August 5, 2013. Attorney Silverman
       became the attorney representing the Estate of Edgar A. Waite,
       thus representing Appellants as executor[s] of their father’s
       estate. The 2006 Will was probated along with the First and
       Second Codicils from 2011. Unfortunately, Mrs. Waite did not live
       very long after the death of her husband and she passed away on
       April 13, 2014, just eight [] months after the death of Waite.

             Upon Waite’s death, Appellants [filed a complaint against
       Appellees, wherein Appellants] alleged that they [] suffered
       damages in the amount of $939,932.24, the difference between
       the net proceeds of sale and the funds that were deposited into
       the Family Trust following Waite’s death. Alternatively, Appellants
       allege they are entitled to the present value of $130,491 annual
       loss of net income suffered by the sale of the Commercial
       Properties calculated for [a] number of years determined by the
       trier of fact to be sufficient to fully compensate Appellants.
       Additionally, Appellants allege they are entitled to an award of
       punitive damages.

Trial Court Opinion, 4/30/2019, at 1-4 (footnote and some citations omitted;

party designations altered).

       Following the completion of discovery, Appellees filed a motion for

summary judgment. On June 29, 2018, Appellants filed a cross-motion for

summary judgment. Following argument,1 the trial court granted Appellees’

motion for summary judgment and dismissed Appellants’ claims.                Order

12/20/2018. In its opinion to this Court, the trial court explained that, while

it determined that Attorney Silverman owed a duty to Waite and his estate

____________________________________________


1 “The trial court limited oral argument to the sole issue of ‘[w]hether the
invalid 2007 [POA] and subsequent 2013 [POAs were] the proximate cause of
any damage to [Appellants].’” Trial Court Opinion, 4/30/2019, at 4-5 citing
Order, 11/2/2018.

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J-A27038-19



and that Attorney Silverman “failed to exercise ordinary skill, knowledge and

diligence possessed by attorneys[,]” Appellees were nonetheless entitled to

summary judgment because Attorney Silverman’s actions were not the

proximate cause of any damage suffered by Appellants. Trial Court Opinion,

4/30/2019, at 7.

        This timely-filed appeal followed.2 Although presented as five distinct

issues, Appellants’ claims on appeal are all interrelated.      Thus, we shall

address them together. In essence, Appellants assert the trial court erred in

concluding that Appellees were entitled to summary judgment because

Attorney Silverman’s actions were not the proximate cause of Appellants’

damages.3      Appellants’ Brief at 5-6; See also id. at 29 (“The sole issue on

appeal is whether [Attorney] Silverman’s negligent actions were the proximate

cause of damage to Appellants.”). We begin with the relevant legal principles.

        In reviewing an appeal from the trial court’s grant of a motion for

summary judgment, we are governed by the following.

              Our scope of review of summary judgment orders is plenary.
        We apply the same standard as the trial court, reviewing all the
        evidence of record to determine whether there exists a genuine
        issue of material fact. We view the record in the light most
        favorable to the non-moving party, and all doubts as to the
        existence of a genuine issue of material fact must be resolved
____________________________________________


2   Both Appellants and the trial court complied with Pa.R.A.P. 1925.

3 Additionally, Appellants assert the trial court committed “an error of law or
an abuse of discretion in failing to find that punitive damages should be
imposed upon [Appellees] as to all of [Appellants’] claims[.]” Appellants’ Brief
at 6.

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J-A27038-19


      against the moving party. Only where there is no genuine issue
      as to any material fact and it is clear that the moving party is
      entitled to judgment as a matter of law will summary judgment
      be entered.

             Motions for summary judgment necessarily and directly
      implicate the plaintiffs’ proof of the elements of their cause of
      action. Summary judgment is proper if, after the completion of
      discovery relevant to the motion, including the production of
      expert reports, an adverse party who will bear the burden of proof
      at trial has failed to produce evidence of facts essential to the
      cause of action or defense which in a jury trial would require the
      issues to be submitted to a jury. Thus a record that supports
      summary judgment will either (1) show the material facts are
      undisputed or (2) contain insufficient evidence of facts to make
      out a prima facie cause of action or defense and, therefore, there
      is no issue to be submitted to the jury. Upon appellate review we
      are not bound by the trial court’s conclusions of law, but may
      reach our own conclusions. The appellate [c]ourt may disturb the
      trial court’s order only upon an error of law or an abuse of
      discretion.

Collins v. Philadelphia Suburban Development Corp., 179 A.3d 69, 73

(Pa. Super. 2018) (citation, brackets, and ellipses omitted).

      “A cause of action for legal malpractice contains three elements: the

plaintiff’s employment of the attorney or other grounds for imposition of a

duty; the attorney’s neglect to exercise ordinary skill and knowledge; and the

occurrence of damage to the plaintiff proximately caused by the attorney’s

misfeasance.” Kirschner v. K & L Gates LLP, 46 A.3d 737, 748 (Pa. Super.

2012). “An essential element to this cause of action is proof of actual loss

rather than a breach of a professional duty causing only nominal damages,

speculative harm or threat of future harm.” Nelson v. Heslin, 806 A.2d 873,

876 (Pa. Super. 2002).


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      Proximate cause[] is a question of law, to be determined by the
      judge, and it must be established before the question of actual
      cause may be put to the jury. A determination of legal causation,
      essentially regards whether the negligence, if any, was so remote
      that as a matter of law, [the actor] cannot be held legally
      responsible for [the] harm which subsequently, occurred.

Reilly v. Tiergarten Inc., 633 A.2d 208, 210 (Pa. Super. 1993) (citations

and quotation marks omitted; brackets in original).

      In this case, Appellants assert that the trial court erred in concluding

that Attorney Silverman’s negligence was not the proximate cause of

Appellants’ damages.    According to Appellants, “the sale of the properties

would not have occurred but for [] Waite signing the invalid 2013 POAs[,

Attorney] Silverman’s action[s] were a substantial factor in [] Waite signing

the POAs[, and therefore, Attorney] Silverman’s actions were a proximate

cause of the sale of the properties.” Appellants’ Brief at 35-36. Additionally,

Appellants assert that the trial court’s conclusion that, if the 2007 POA had

been executed properly, the result would have been the same, i.e., the

properties would have still been sold, “ignore[s] the significant fact that in

2012 before listing the properties for sale [Mrs.] Waite asked [for Attorney]

Silverman’s advice on whether to sell” the Commercial Properties. Id. at 41-

42. Specifically,

      [i]n early 2012[, Mrs.] Waite, citing the increased cost of [Waite’s]
      home care, asked [Attorney] Silverman for advice about whether
      to sell the properties. [Attorney] Silverman testified that part of
      their conversation was [Mrs. Waite] saying she was running out
      of money to care for [] Waite; bills were increasing for the Red
      Barn Mall property ([] Waite’s third commercial property that was
      not sold); and she was “trying to free up some cash.” [Attorney]

                                      -7-
J-A27038-19


     Silverman advised [Mrs.] Waite to sell the two properties; but
     [Attorney] Silverman had made no inquiry into the facts of
     [Waite’s] finances. [Attorney] Silverman did not know what
     income Midas Muffler and 7-Eleven produced; he did not know the
     extent of the household expenses; and he did not review the
     Waites’ tax returns. [Attorney] Silverman did not review medical
     costs associated with [] Waite’s care; and he did not ascertain []
     Waite’s condition. [Attorney] Silverman did not consider the tax
     consequences of a lifetime sale of real estate.

                                     ***
             Placed in context, [Attorney] Silverman’s negligence was
     the proximate cause of these sales that occurred when [] Waite
     was 88 years old and at the very end of his life. He lived only 2
     months after the properties were sold. Obviously[,] the need for
     expensive 24 hour home care also ended. Another asset that could
     have substantially and easily met the Waites’ 2012 financial needs
     was the $188,690 RBC Wealth Management Account that earned
     no interest, or pennies of interest. There were also three unused
     cars worth a combined $46,500. Simply put it was a financial
     catastrophe to sell the properties worth $1.8 million dollars, incur
     a $414,701 tax, and give up $130,000+ in annual income, to pay
     bills less than $200,000.

Id. at 43-44, 49-50 (citations omitted).

     In its opinion to this Court, the trial court reiterated that granting

summary judgment in Appellees’ favor was appropriate because Attorney

Silverman’s actions were not the proximate cause of Appellants’ injuries.

           Appellants allege that due to [Attorney] Silverman’s
     conduct, they have suffered damages in the amount of
     $939,932.24, the difference between the net proceeds of sale and
     the funds that were deposited into the [2001] Family Trust
     following [] Waite’s death. In the plain reading of [] Waite’s [w]ill,
     at the time of [] Waite’s death, Appellants had only an expectation
     of an inheritance. Mrs. Waite could have dissipated [] Waite’s
     entire estate in her lifetime as Mrs. Waite was to be the primary,
     and potentially sole, beneficiary of his estate.

           Only if his assets were still in existence at the time of Mrs.
     Waite’s death would the provisions of the family trust apply. There

                                     -8-
J-A27038-19


     was no evidence that [] Waite intended to provide his daughters
     with anything but what remained from his assets upon the death
     of [Mrs. Waite]. And this is exactly what Appellants received, the
     remainder of [] Waite’s assets upon the death of [Mrs. Waite].
     Therefore, the trial court found [Attorney] Silverman’s conduct
     was not a proximate cause of Appellants’ alleged damages.

            The 2007 [POA] specifically authorized the attorney in fact,
     Mrs. Waite, “[t]o lease, sell, release, convey, extinguish or
     mortgage any interest in any real estate I own on such terms as
     my agent deems advisable ....” The record reflects that [] Waite
     lacked the capacity to execute the [2013 POAs] prepared in
     conjunction with the sale of the properties in 2013. Had the 2007
     [POA] included the notice, there would not be a need for the
     invalid 2013 [POA]. The issue of the [POA] did not make the sale
     improper or invalid, and that any such alleged negligence on the
     part of [Appellees] did not cause harm to [Appellants]. Indeed, if
     the power had been properly prepared, the result would have been
     exactly the same, namely, the properties would have been sold.
     While the absence of the statutory notice may have permitted
     third parties to disregard or refuse to recognize the power, the
     fact that the power was imperfectly executed did not alter []
     Waite’s intent to name [Mrs. Waite] as his attorney in fact. Thus,
     the trial court concluded that [Attorney] Silverman’s conduct was
     not a substantial factor in bringing about Appellant[s’] financial
     “injury.”

                                       ***
            Further, in Ma[y] 2013 when the properties were sold, no
     one knew that [] Waite would live for only [two] more months.
     There is no suggestion that [Attorney] Silverman knew that []
     Waite would pass away soon after the sale of the properties, so
     as to hold him liable for failing to advise the Waites that they could
     forego a substantial capital gains tax if they held the property until
     after [] Waite’s death. There is also no suggestion that [Attorney]
     Silverman knew that Mrs. Waite would live a mere eight months
     after [Waite].




                                     -9-
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Trial Court Opinion, 4/30/2019, at 9-10 (citations omitted).4 Appellees assert

that the record supports the trial court’s findings. See Appellees’ Brief at 9

(“There was no question that [Mrs.] Waite was [Waite’s] intended attorney in

fact, that the Waites were in need of the funds, and that the funds were utilized

to retire their debts, pay for their care, and that [Appellants] received the

residuary upon Mrs. Waite’s death, exactly as [] Waite had intended and

directed.”). Notably, both parties stipulated, and the trial court agreed, that

there was no dispute of any material facts. We disagree.

       We begin our analysis by reiterating that

       summary judgment is appropriate only in those cases where the
       record clearly demonstrates that there is no genuine issue of
       material fact and that the moving party is entitled to judgment as
       a matter of law[.] … Importantly, the trial court may only grant
       summary judgment where the right to such judgment is clear and
       free from all doubt. Moreover, an appellate court may reverse a
       grant of summary judgment if there has been an error of law or
       an abuse of discretion.

Brewington for Brewington v. City of Philadelphia, 199 A.3d 348, 352

(Pa. 2018) (citations and quotation marks omitted).

       The facts in this case, when viewed in the light most favorable to

Appellants as the non-moving parties, establish that Attorney Silverman was

counsel for Waite for over 40 years, assisting Waite in, inter alia, estate

planning and business matters. Silverman Deposition, 3/26/2016, at 11-14.


____________________________________________


4The trial court also concluded that, because it “did not find that [Appellees’]
conduct was the proximate cause of [Appellants’] damages[,]” granting
Appellants’ request for punitive damages was “improper.” Id. at 11.

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Attorney Silverman estimated that his last face-to-face contact with Waite was

in the 1990s. Id. at 31.        Waite was diagnosed with Alzheimer’s disease in

August 2006. Plaintiffs’ Motion for Summary Judgment, 6/29/2018, at 3. In

2007,5 Attorney Silverman assisted the Waites in executing a POA, which

granted, in relevant part, certain powers to Mrs. Waite in the event that Waite

became disabled or incapacitated. Id. at 5 These powers included providing

Mrs. Waite with the authority to sell the Commercial Properties as Waite’s

attorney in fact. Id. citing Amended Complaint, 7/17/2017, at Exhibit F. Of

significance, the 2007 POA, which was not signed or notarized in Attorney

Silverman’s presence, lacked the proper statutory requirements for a durable

POA. Specifically, “it lacked the required notice to the principal, explaining

the    significance    of   rights   given     to   the   agent[,]   and   lacked   the

acknowledgement of agent, regarding her duty to the principal.” 6 Id. at 5.

        In 2012, Mrs. Waite approached Attorney Silverman about selling the

Commercial Properties.         Although these properties were solely in Waite’s

name, Attorney Silverman dealt only with Mrs. Waite7 during this time. It was

____________________________________________


5 Although the 2007 POA was signed after Waite’s Alzheimer’s diagnosis,
Appellants do not allege he was incapacitated at the time. N.T., 11/30/2018,
at 9, 23.

6   See 20 Pa.C.S. § 5601(c)-(d).

7 Regarding his relationship with Mrs. Waite, Attorney Silverman stated that
he did not recall meeting Mrs. Waite “more than once, maybe twice[.]”
Silverman Deposition, 3/26/2016, at 164. “I didn’t have very much contact



                                          - 11 -
J-A27038-19


Attorney Silverman’s understanding that Waite was becoming “frail.”8

Silverman Deposition, 3/26/2016, at 33, 39, 54-55. Attorney Silverman did

not inquire into the current financial position of the parties nor apprise Mrs.

Waite of the tax implications associated with the sale of the Commercial

Properties during Waite’s lifetime. Id. at 45-47, 50-55. However, Attorney

Silverman was cognizant that the Waites were having difficulty paying bills

and maintaining the properties.                Id. at 54-55.   Specifically, Attorney

Silverman was aware that the financial issues were due, in some part, to costly

medical care needed for Waite during this time. Id. at 45. Upon consultation

with Attorney Silverman, Mrs. Waite decided to sell the Commercial

Properties.     Id. at 44-45.         With Attorney Silverman’s assistance, the



____________________________________________


with her until the last couple years, when these properties went up for sale,
but she usually would listen to anything I said to her and take it under advice.”
Id.

8 In October 2012, Attorney Silverman was included on an email exchange
regarding Mrs. Waite signing a Midas lease agreement on behalf of Waite. An
inquiry was made as to whether it was necessary for Mrs. Waite to sign on
behalf of her husband. Plaintiffs’ Brief in Support of Summary Judgment,
6/29/2018, at 5, citing Amended Complaint, 7/17/2017, at Exhibit J. Art
Loatka, Jr., corporate counsel for Midas, responded that it was “because
[Waite] has [A]lzheimer[’]s and []is no longer capable of signing.” Id.
Attorney Silverman responded that he was not aware Waite was “not capable
of understanding his affairs. He has become a little physically challenged but
he is capable of understanding his actions and is therefore capable of entering
into the lease exten[s]ion.” Id. At his deposition, Attorney Silverman stated
that, after receiving this email, he spoke with Waite on the phone and asked
if there were any problems, to which Waite responded “no.” Silverman
Deposition, 3/26/2016, at 41. It does not appear that Attorney Silverman
followed up any further on this issue after he spoke with Waite.

                                          - 12 -
J-A27038-19


Commercial Properties were listed for sale and eventually a buyer was

procured. During this time, Attorney Silverman assisted with negotiations,

spoke     with   representatives   from   Midas   and   7-Eleven,   exchanged

correspondence with the real estate agent hired to sell the Commercial

Properties, and relayed pertinent information to Mrs. Waite. Id. at 56-64,

108-117. Attorney Silverman did not, however, have any contact with Waite.

Id. at 39.

        A few days before the anticipated closing on the Commercial Properties,

Attorney Silverman was made aware that the 2007 POA did not comply with

the statutory requirements. Because of this, it was requested that a compliant

POA for each property be executed before closing, to which Attorney

Silverman agreed.      Plaintiffs’ Motion for Summary Judgment, 6/29/2018.

Attorney Silverman forwarded to Mrs. Waite an email that included the new

POAs and directed Mrs. Waite to have it signed and notarized. In the email,

Attorney Silverman acknowledged that “[t]he problem is that [Waite] had [sic]

to be able to comprehend what he is signing for the POA to be valid.” Id.,

citing Amended Complaint, 7/17/2017, at Exhibit G. The POAs (2013 POAs)

were signed by Waite, notarized, and provided to the parties at closing. Id.

at 10. Neither party disputes that Waite was incapacitated at the time he

executed the 2013 POA. However, Attorney Silverman has maintained that

he only became aware of Waite’s Alzheimer’s diagnosis after Waite’s death.

Silverman Deposition, 3/26/2016 at 35.


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      Instantly, we are persuaded by the trial court’s determination that

Attorney Silverman’s negligence, insomuch as it relates to the 2007 POA and

subsequent 2013 POAs, was not the proximate cause of Appellants’ alleged

harm. Specifically, we find that, under the unique facts of this case, the trial

court concluded correctly that Waite’s intentions when signing the 2007 POA

was to grant Mrs. Waite the authority, inter alia, to sell the Commercial

Properties, which was precisely what occurred here.

      While the absence of the statutory notice may have permitted
      third parties to disregard or refuse to recognize the power, the
      fact that the power was imperfectly executed did not alter []
      Waite’s intent to name [Mrs. Waite] as his attorney in fact. Thus,
      the trial court concluded that [Attorney] Silverman’s conduct was
      not a substantial factor in bringing about Appellant[s’] financial
      “injury.”

See Trial Court Opinion, 4/30/2019, at, 9-10. As such, we find that, like

providing a pen for a signature, Attorney Silverman’s actions may have been

the “but for” cause, but were not the proximate cause of the damages

Appellants alleged to have suffered.

      Nonetheless, we observe that there are genuine issues of material fact

as to what, as Waite’s lawyer, Attorney Silverman was obligated to do, and

what he did do: (1) to review his client’s finances; and (2) to inform his client

about the tax implications before advising the client whether it would be

prudent to sell the Commercial Properties. As Appellants point out, regardless

of the 2007 POA, Mrs. Waite approached Attorney Silverman in 2012, and

sought his advice on whether to sell the Commercial Properties. Due to the


                                     - 14 -
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financial issues the Waites were facing, Attorney Silverman advised Mrs. Waite

to sell the properties. However, this advice was offered with little or no inquiry

into the Waites’ finances and without informing Mrs. Waite of the tax

implications associated with the sale of these properties during Waite’s

lifetime.

      Based upon the foregoing, we conclude that the trial court erred in

granting summary judgment to Appellees. In finding as such, we are mindful

that our Supreme Court has emphasized “that it is not [a] court’s function

upon summary judgment to decide issues of fact, but only to decide whether

there is an issue of fact to be tried.” Fine v. Checcio, 870 A.2d 850, 862 (Pa.

2005) (citing Pa.R.C.P. 1035.2(1)). Further, the focus on summary judgment

is not on weight and credibility; instead, it is “whether the proffered evidence,

if credited by a jury, would be sufficient to prevail at trial.”     Weaver v.

Lancaster Newspapers, Inc., 926 A.2d 899, 906 (Pa. 2007) (emphasis in

original).

      For these reasons, we conclude that, at a minimum, there are a genuine

issues of material fact yet to be resolved. Accordingly, we hold that the trial

court erred in granting summary judgment to Appellees.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/20




                          - 16 -
