J-A12020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ZOKAITES CONTRACTING, INC.,                :   IN THE SUPERIOR COURT OF
    GENERAL PARTNER AND TRADING                :        PENNSYLVANIA
    AS ZOKAITES PROPERTIES, LP AND             :
    WYNCREST DEVELOPMENT, INC.                 :
                                               :
                       Appellants              :
                                               :
                v.                             :
                                               :
    JEFFREY A. HULTON                          :
                                               :
                       Appellee                :      No. 1471 WDA 2019

              Appeal from the Order Entered September 16, 2019
              In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD 17-011433


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.:                                    FILED MAY 29, 2020

        Appellants, Zokaites Contracting, Inc., General Partner and Trading as

Zokaites Properties, LP and Wyncrest Development, Inc., appeal from the

order entered in the Allegheny County Court of Common Pleas, which granted

summary judgment in favor of Appellee, Jeffrey A. Hulton, in this legal

malpractice action. We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellants are residential real estate developers who own a tract in Butler

Township, Butler County (“Development”) with plans to build there and sell

47 homes. Before the end of 2009, Appellants completed 14 of the homes in

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A12020-20


compliance with the then-effective 2006 version of the Pennsylvania Uniform

Commercial Code (“PUCC”). The Pennsylvania legislature, however, amended

the PUCC, effective December 31, 2009.        Appellants’ president Frank R.

Zokaites executed a letter dated December 15, 2009 (“December 15th Letter”)

to architecture firm, Sweeny Shank, LLC (“Sweeny Shank”). The December

15th Letter purported to set forth between Appellants and Sweeny Shank an

agreement, under which Sweeny Shank would design the remaining 33 homes

in the Development.

      In 2010, Appellants applied for a permit to build homes under the 2006

PUCC, arguing the December 15th Letter constituted a “design contract” to

which the PUCC “grandfather provision” applied to allow construction of the

new homes under the 2006 PUCC. The Butler Township Code Enforcement

Officer denied Appellants’ application. Appellants retained the legal services

of Appellee and appealed the denial of their building permit application to the

Butler Township UCC Board (“Board”). On June 30, 2010, the Board upheld

the Code Enforcement Officer’s denial of Appellants’ application.

      While still represented by Appellee, Appellants filed a timely appeal in

the Butler County Court of Common Pleas.          On October 28, 2015, the

Honorable Michael Yeager presided over a bench trial, at which Appellants’

vice president, Jeffrey Robinson, testified. During trial, an exchange between

Judge Yeager and Mr. Robinson occurred, in relevant part, as follows:

         [THE COURT]:       … This letter of December 15, 2009,
         was authored by Frank R. Zokaites. Is that correct?

                                     -2-
J-A12020-20



       [MR. ROBINSON]:       Yes, Your Honor.

                                *     *    *

       [THE COURT]:          Who     usually    writes   the   design
       contract?

                                *     *    *

       [THE COURT]:           Well, your testimony, sir, was the
       design contract is what, and I quote you, whatever the
       architect puts into it.

                                *     *    *

       [MR. ROBINSON]: Yes. That was my testimony. I believe
       the question was a general question of a design contract.

       [THE COURT]:          I want to know what the design
       contract is, and your response was, whatever the architect—
       whatever the architect puts into it.

       [MR. ROBINSON]:       Okay.

       [THE COURT]:         So that would then—one would then
       have to conclude from that[,] that a design contract is
       customarily proffered by an architect.

       [MR. ROBINSON]:       Yes, Your Honor.

       [THE COURT]:          And why did Zokaites Properties—why
       was it that Zokaites Properties—Wyncrest Development,
       Inc. and Zokaites Properties, why was it that they were
       proffering this contract, to term this to be a design contract?

       [MR. ROBINSON]:       In this particular case?

       [THE COURT]:         Yes. If a design contract is typically
       and customarily proffered by an architect, why is it that this
       document that you’re terming to be a design contract under
       date of December 15, 2009, was proffered by the builder,
       Zokaites Properties, Inc. and—Wyncrest Development, Inc.
       and Zokaites Properties?

                                     -3-
J-A12020-20



                                 *    *    *

         [THE COURT]:      Well, who drafted—well it’s written on
         Wyncrest Development, Inc. letterhead.

         [MR. ROBINSON]:      Yes, you’re right.

         [THE COURT]:         And it’s signed…by a Mr. Zokaites.

         [MR. ROBINSON]: Actually I think you’re right, Your
         Honor. It looks like we did do it because I do see the
         initials—

         [THE COURT]:         ZR—FRZ?

         [MR. ROBINSON]: Right, which stands for Frank R.
         Zokaites. So apparently Mr. Zokaites did. Why was it done,
         um—um, oh, probably because we were planning to take
         advantage of the grandfather provision.

         [THE COURT]:         And    because   of   the   time   frame
         involved?

         [MR. ROBINSON]:      Probably.

(N.T. Trial, 10/28/15, at 39-42; R.R. at 226a-229a).

      On November 3, 2015, Judge Yeager entered a verdict in favor of the

Board and against Appellants, upholding the Board’s decision. Judge Yeager

determined the December 15th Letter did not constitute a design contract

under the PUCC, but was merely a self-serving document representing

Appellants’ attempt to circumvent the intent of the PUCC to provide safety and

welfare standards.

      While still represented by Appellee, Appellants timely appealed. Judge

Yeager ordered Appellants to file a concise statement of errors complained of


                                     -4-
J-A12020-20


on   appeal   per   Pa.R.A.P.   1925(b),   but   Appellants   failed   to   comply.

Subsequently, Judge Yeager entered two Rule 1925(a) opinions, noting

Appellants had failed to file a court-ordered concise statement. On May 3,

2017, the Commonwealth Court determined all appellate issues had been

waived for failure to file a court-ordered Rule 1925(b) statement and affirmed

Judge Yeager’s decision. See Zokaites Properties, LP v. Butler Township

UCC Board of Appeals, 167 A.3d 306 (Pa.Cmwlth. 2017) (unpublished

memorandum).

      On August 14, 2017, Appellants initiated the current case when they

filed in the Allegheny County Court of Common Pleas a complaint against

Appellee for legal malpractice, based upon Appellee’s failure to file a court-

ordered Rule 1925(b) statement on Appellants’ behalf in the Butler County

action. Appellee filed a motion for summary judgment on June 26, 2019, and

Appellants filed a response on August 23, 2019. On September 16, 2019, the

trial court granted Appellee’s motion for summary judgment.             Appellants

timely filed a notice of appeal on September 24, 2019. The trial court ordered

Appellants on September 27, 2019, to file a Rule 1925(b) statement;

Appellants timely complied on October 3, 2019.

      Appellants raise the following issues for our review:

         WHETHER THE COURT COMMITTED ERRORS OF LAW AND
         FACT IN FAILING TO FIND THAT THERE WERE
         SUBSTANTIAL ISSUES OF MATERIAL FACT CONCERNING
         WHETHER THE DESIGN CONTRACT SATISFIED ALL THE
         ELEMENTS REQUIRED TO SUSTAIN A CONTRACT THEREBY
         PRECLUDING THE GRANT OF SUMMARY JUDGMENT[?]

                                      -5-
J-A12020-20



         WHETHER THE COURT COMMITTED ERRORS OF LAW AND
         FACT IN FAILING TO FIND THAT THERE WERE
         SUBSTANTIAL ISSUES OF MATERIAL FACT CONCERNING
         WHETHER      THE    DESIGN   CONTRACT    BETWEEN
         [APPELLANTS]    AND   SWEENY   SHANK  ARCHITECTS
         CONSTITUTED A DESIGN CONTRACT WITHIN THE MEANING
         OF PENNSYLVANIA’S UNIFORM CONSTRUCTION CODE, 35
         P.S. § 7210.104, THEREBY PRECLUDING THE GRANT OF
         SUMMARY JUDGMENT[?]

         WHETHER THE COURT COMMITTED ERRORS OF LAW AND
         FACT IN FINDING THAT APPELLANTS’ TAKING ADVANTAGE
         OF THE GRANDFATHER PROVISION WAS AN IMPROPER
         ATTEMPT TO CIRCUMVENT THE INTENT TO PROVIDE
         STANDARDS FOR THE PROTECTION OF LIFE, HEALTH,
         PROPERTY, AND ENVIRONMENT AND FOR THE SAFETY AND
         WELFARE OF THE CONSUMER, GENERAL PUBLIC, AND THE
         OWNERS     AND    WELFARE   OF    BUILDINGS   AND
         STRUCTURES[?]

(Appellants’ Brief at 3).

      Our standard of review of an order granting summary judgment requires

us to determine whether the trial court abused its discretion or committed an

error of law.   Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347

(Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it misapplies
         the law or exercises its discretion in a manner lacking
         reason. Similarly, the trial court abuses its discretion if it
         does not follow legal procedure.

Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations and quotation marks omitted).        Our scope of review is

plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001),

                                       -6-
J-A12020-20


cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).        In

reviewing a trial court’s grant of summary judgment,

         [W]e 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 against the moving party. Only where there is
         no genuine issue as to any material fact and it is clear that
         the moving party is entitled to a judgment as a matter of
         law will summary judgment be entered. All doubts as to the
         existence of a genuine issue of a material fact must be
         resolved against the moving party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] 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. In other words, whenever there is no genuine
         issue of any material fact as to a necessary element of the
         cause of action or defense, which could be established by
         additional discovery or expert report and the moving party
         is entitled to judgment as a matter of law, summary
         judgment is appropriate. Thus, a record that supports
         summary judgment either (1) shows the material facts are
         undisputed or (2) contains insufficient evidence of facts to
         make out a prima facie cause of action or defense.

         Upon appellate review, we are not bound by the trial court’s
         conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

      The PUCC includes a “grandfather provision,” which provides in relevant

part, as follows:

                                      -7-
J-A12020-20


         § 7210.104. Application

         (a) General rule.—This act shall apply to the
         construction, alteration, repair and occupancy of all
         buildings in this Commonwealth.

         (b)   Exclusions.—This act shall not apply to:

                                    *     *   *

            (2) new buildings or renovations to existing buildings
            on which a contract for design or construction has been
            signed prior to the effective date of the regulations
            promulgated under this act on projects requiring
            department approval;

                                    *     *   *

35 P.S. § 7210.104(a), (b)(2) (effective July 17, 2007, to October 24, 2017).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Donald R.

Walko, Jr., we conclude Appellants’ issues merit no relief.      The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed November 5, 2019, at 3-6) (finding:

to complete “case within case” analysis, trial court stands in shoes of

Commonwealth Court as if it were reviewing appeal from Judge Yeager’s

decision in underlying action to uphold Board’s denial of Appellants’ application

for building permit; at trial in underlying case, Jeffrey Robinson, Appellants’

vice president, testified that architect typically writes design contract; Mr.

Robinson explained, however, Appellants’ president drafted December 15th

Letter; Mr. Robinson admitted Appellants “probably” drafted letter for


                                        -8-
J-A12020-20


purposes of taking advantage of grandfather provision of 2009 PUCC; Judge

Yeager determined December 15th Letter was merely self-serving letter, which

was not “design contract” within meaning of PUCC; whether December 15th

Letter satisfied elements of contract, generally, is irrelevant, because even if

December 15th Letter was enforceable contract, it was not design contract

under PUCC; Judge Yeager’s decision was sound; thus, there is no substantial

issue of material fact regarding whether December 15th Letter constituted

design contract under PUCC; additionally, Board found December 15th Letter

was not design contract to be excluded or “grandfathered in” from 2009 PUCC

requirements;    additionally,   no   evidence   demonstrated     2009    PUCC

requirements would have required alteration of any of architect Sweeny

Shank’s design work; in upholding Board’s denial, Judge Yeager noted

regulatory purpose of PUCC grandfather provision was to “save building

owners time and expense and not to require redesign or resubmission of plans

for buildings in the construction process”; Judge Yeager determined

Appellants’ interpretation of grandfather provision would permit them to build

homes without regard to changes in PUCC in virtual perpetuity; such

expansive exception conflicts with PUCC’s overall purpose to ensure safety

and welfare of general public; record of underlying action supports Judge

Yeager’s conclusion; based upon foregoing, Appellants cannot prove they

would have been successful on merits on appeal from Judge Yeager’s decision,

even if Appellee had filed court-ordered Rule 1925(b) statement on Appellants’


                                      -9-
J-A12020-20


behalf in underlying action; thus, Appellants’ legal malpractice claim fails). 1

The record supports the trial court’s rationale.         See Chenot, supra.

Accordingly, we affirm on the basis of the trial court’s opinion.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2020




____________________________________________


1 We depart only from the trial court’s reliance on Scaramuzza v. Sciolla,
No. Civ.A.04-1270, 2006 WL 557716 (E.D.Pa. March 3, 2006), as that is a
federal district court case, which is non-binding on our Court.

                                          - 10 -
                                                                                     Circulated 05/06/2020 07:04 AM



                       Allegheny County - Department of Court Records
                              Civil Division - Filings Information


County caseID:GD-17-011433
Case Description:Zokaites Contracting Inc. etal vs Hulton
Official Docket Entry, Sort By Document Number Ascending

Document       Filed Date      Title/Entry                  Entry Classification    Filed By
Number

1              11/05/2019      Opinion                      Official Docket Entry   Donald RWalko Jr.




                                               (Index Page-1)
                                                                                      1-Opinion




     IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                              CML DIVISION



    ZOKAITES CONTRACTING, INC.,                          No: GD-17-011433
    GENERAL PARTNER AND TRADING AS
    ZOKAITES PROPERTIES, LP, and                         Superior Court No: 1471 WDA 2019
    WYNCRESTY DEVELOPMENT, INC.

                                           Plaintiffs,   OPINION

         v.
                                                         BY:
     JEFFREY A. HULTON
                                                         Honorable Donald R. Walko, Jr.
                                           Defendant.    City-County Building
                                                         414 Grant Street, Room 706
                                                         Pittsburgh, PA 15219



                                                         COPIES TO:

                                                         Counsel for Plaintiff:
                                                         Jeffrey M. Robinson, Esq.
                                                         Robinson Law Group
                                                         155 Lake Drive, Suite 103
                                                         Wexford, PA 15090
              .. - . :-�      �--· .

-
              '       ···,,·
                  !   �·. .:.. ·,
                      :. l� :.· ..
                                       •
                                                         Counsel for Defendant:
u,                                                       Robert J. Grimm, Esq.
                                                         Swartz Campbell LLC
                                                         Koppers Building
                                                         436 th A venue
                                                         Pittsburgh, PA 15219
 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                          CIVIL DIVISION

ZOKAITES CONTRACTING, INC.,                            No: GD-17-011433
GENERAL PARTNER AND TRADING AS
ZOKAITES PROPERTIES, LP, and                           Superior Court No: 1471 WDA 2019
WYNCRESTY DEVELOPMENT, INC.

                       Plaintiffs,

       v.

JEFFREY A. HULTON

                        Defendant.




                                             OPINION

WALKO,J.                                                                        November 5, 2019


       This appeal concerns the Order dated September 13, 2019, in which the Court granted

Defendant's Motion for Summary Judgment and dismissed all claims with prejudice.


                               I.    FACTUAL BACKGROUND

       Zokaites Properties, LP ("Zokaites") and Wycrest Development, lnc.("Wycrest")

( collectively, the "Plaintiffs") drew up plans to construct 47 homes as part of a residential

development in Butler Township. Fourteen homes were constructed in compliance with the 2006

version of the Pennsylvania Uniform Construction Code ("UCC"). The UCC was amended in

2009, which added requirements that would increase Plaintiffs' building costs for the remaining

33 homes. The amendments were to take effect on December 31, 2009; however, there was a

"grandfather" provision for existing designs and constructions.




                                                   1
       Plaintiffs claim that they entered into a construction contract on December 15, 2009,

which led them to believe that their construction plans would fall under the 2006 UCC as these

plans existed prior to the enactment of the new UCC. Plaintiffs applied for a building permit

under the less onerous requirements of the 2006 UCC, but the Butler Township Code

Enforcement Officer denied their application, claiming the building contract did not fall under

the "grandfather" provisions of the 2009 UCC. Plaintiffs retained Attorney Jeffrey A. Hulton,

Esquire ("Defen�ant" or "Attorney Hulton") to represent them in their appeal to Butler

Township's Uniform Commercial Code Board of Appeals ("Board"). The Board upheld the

Code Enforcement Officers denial of the application. Plaintiffs then appealed to the Butler

County Court of Common Pleas.

       On November 3, 2015, the Honorable Judge Yeager of the Butler County Court of

Common Pleas entered a verdict in favor of the Board, upholding its denial of the building

permit. Plaintiffs filed a Notice of Appeal and the trial court issued a Rule 1925(b) Order

directing Plaintiffs to file a statement of matters complained of on appeal. Defendant failed to

timely file a statement of matters on behalf of Plaintiffs. As a result, Judge Yeager issued an

Opinion indicating that the failure to file the statement waived all issues on appeal. On May 3,

201 7, Commonwealth Court dismissed the appeal, agreeing with the trial court that all issues had

been waived on appeal.

                              II.    PROCEDURAL HISTORY

        On August 14, 2017, Plaintiffs Zokaites and Wycrest launched this complaint against

Defendant Attorney Hulton raising one count of professional negligence for his failure to timely

file the Rule l 925(b) statement. Defendant responded with preliminary objections on several

issues including failure to serve original process, improper venue, lack of standing, and failure to


                                                 2
state a claim. The Allegheny County Court of Common Pleas Judge Ignelzi overruled

Defendant's preliminary objections and allowed the complaint to be served. Defendant then filed

an Answer and New Matter, raising a statute of limitations defense, failure to state a claim,

laches, accord, satisfaction, consent, discharge, illegality, impossibility, and the doctrines of

collateral estoppel and/or res judicata. Following Plaintiff's Response to New Matter, Defendant

moved for summary judgment only after a prolonged delay in the case because of a Suggestion

of Bankruptcy, which was ultimately dismissed against Defendant.

       In an Order dated September 13, 2019, this Court granted Defendant's Motion for

Summary Judgment. For the reasons outlined below, the Court's Order should be affirmed.

                                      III.   DISCUSSION

        A plaintiff in an attorney malpractice case must establish three elements: 1) employment

of the attorney or other basis for a duty; 2) the failure of the attorney to exercise ordinary skill

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

Kituskie v. Corbman, 714 A.2d 1027, 1029 (Pa. 1998). The Pennsylvania Supreme Court has

explicitly stated that "[a] legal malpractice action is different because ... a plaintiff must prove a

case within a case since he must initially establish by a preponderance of the evidence that he

would have recovered a judgment in the underlying action ... [i]t is only after the plaintiff

proves he would have recovered a judgment in the underlying action that the plaintiff can then

proceed with proof that the attorney he engaged ... was negligent." Id. at 1030 (emphasis added).

The case within a case analysis requires the Court to replicate the underlying litigation "via a

careful review of the record of the underlying trial" Scaramuza v. Sciolla, No. Civ.A.04-1270,

2006 WL 557716 (E.D.P.A. March 3, 2006). Accordingly, the factual findings made in the




                                                   3
underlying case will be used to determine whether Plaintiffs would have recovered a judgment in

the previous action based on the merits.

       After careful consideration of the record, the Court finds that Plaintiffs would not have

been successful on the merits of its appeal and that the Commonwealth Court would have

affirmed the trial court's decision to uphold the Board's denial of Plaintiffs' appeal. Pursuant to

the Local Agency Law, the appropriate standard of review before both the trial court and

Commonwealth Court is whether the Board's decision to uphold an appeal of the denial of a

building permit was supported by substantial evidence. 2 Pa.C.S.A. § 754(b). Under the

Pennsylvania Rules of Civil Procedure, "any party may move for summary judgment in whole or

in part as a matter of law whenever there is no genuine issue of any material fact as to a

necessary element of the cause of action or defense which could be established by additional

discovery or expert report ... " Pa.R.C.P. No. 1035.2. In the case at hand, the first element

Plaintiffs are required to establish is that they would have recovered a judgment in the

underlying action.

       As the Court now stands in the shoes of the Commonwealth Court, it is tasked with

reviewing the Court of Common Pleas Judge Yeager's decision to uphold the Board's denial of

Plaintiffs appeal of the Code Enforcement Officer's permit denial. The record before the Court

shows that a non-jury trial was held before Judge Yeager and was transcribed, creating a full

record of the trial. Jeffrey Robinson, the then-Vice President of both Plaintiff companies,

testified that a design contract is typically written by an architect but that the letter at issue was

drafted by the builder, Frank Zokaites. When asked why this was the case, Robinson simply

answered, "probably because we were planning to take advantage of the grandfather provision."




                                                    4
       Fallowing the trial, Judge Yeager concluded that the proffered contract was nothing more

than a self-serving letter that failed to meet the definition of a "design contract" within the

meaning of the UCC. It is irrelevant whether the design contract satisfied all the elements

required to sustain a contract because even it if was an enforceable contract, it was not a design

contract within the meaning of the UCC. The Commonwealth Court would not have disturbed

Judge Yeager's sound decision and, therefore, there is no substantial issue of material fact

concerning whether the design contract in question constituted a design contract within the

meaning of the UCC. Accordingly, summary judgment on this issue was appropriate.


        Last, there is substantial evidence to support Judge Yeager's finding that the Board was

correct in concluding that Plaintiffs use of the grandfather provision was an improper attempt to

circumvent the intent to provide standards for the protection of the health, safety, and welfare of

the general public. In its decision, the Board found that the contract was not the type of design

contract that is excluded or "grandfathered in" from the 2009 UCC requirements. There was no

testimony or documentary evidence of record that Sweeney Shank performed any design work

that would need to be altered because of the 2009 requirements. The Board concluded that

Plaintiffs were required to show either detrimental reliance or inequity in accordance with the

intent of the UCC's exclusionary provision.


        In upholding the Board's decision Judge Yeager cited the Department of Labor and

Industry's interpretation of the exclusionary provision in concluding that the letter was not the

type of design contract excluded from the 2009 UCC. According to the Department of Labor and

Industry "[t]he purpose is to save building owners time and expense and not to require redesign

or resubmission of plans for buildings in the construction process." Pa Regulation Text, 2006. Pa

Regulation Text 45260 (NS). Judge Yeager emphasized that Plaintiffs' interpretation would

                                                   5
enable them to perpetually build homes without regard to the changes in the UCC. He also

concluded that such a result would conflict with the purpose of the UCC, which is to provide

standards that ensure the safety and welfare of the general public. Accordingly, Judge Yeager

upheld the decision of the Board.


                                    IV.    CONCLUSION

       There are no genuine issues of material fact that demonstrate Plaintiffs would have been

successful in their underlying appeal. If it had ruled on the merits, the Commonwealth Court

would have affirmed Judge Yeager's decision because his determination that the letter was not a

"contract for design or construction" within the meaning of the UCC exclusion was supported by

substantial evidence. First, the letter was drafted by the builder, President Frank Zokaites, rather

than an architect, as would be expected. After reviewing the UCC exclusionary provision, Judge

Yeager determined that the letter did not comport with its purpose or intent and, therefore,

affirmed the Board's decision. Defendant's failure to file the 1925(b) statement was not the

proximate cause of Plaintiffs loss on appeal and, therefore, Plaintiffs cannot prove that they

would have recovered in the underlying action.


        Since Plaintiffs cannot show by a preponderance of the evidence that they would have

recovered in the underlying case, the Court is not required to analyze whether Attorney Hulton

was negligent in his representation. For the foregoing reasons, the Court's Order dated

September 13, 2019 should be affirmed.




                                                  6
