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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BONNIE CRUICKSHANK-WALLACE AND               IN THE SUPERIOR COURT OF
WILLIAM WALLACE                                    PENNSYLVANIA

                        Appellants

                   v.

CNA FINANCIAL CORPORATION AND
CONTINENTAL CASUALTY COMPANY AND
COLUMBIA CASUALTY COMPANY AND
JAMES S. TUPITZA, ESQUIRE AND
TUPITZA & ASSOCIATES, P.C.

                                                 No. 2403 EDA 2016


                    Appeal from the Order July 11, 2016
              In the Court of Common Pleas of Chester County
                   Civil Division at No(s): No. 2013-10242

BONNIE CRUICKSHANK-WALLACE AND               IN THE SUPERIOR COURT OF
WILLIAM WALLACE                                    PENNSYLVANIA

                        Appellants

                   v.

GERARD P. EGAN, ESQUIRE AND EGAN
YOUNG LAW FIRM AND NEIL E.
JOKELSON, ESQUIRE AND NEIL E.
JOKELSON & ASSOCIATES

                                                 No. 2621 EDA 2016


                 Appeal from the Order Dated July 12, 2016
              In the Court of Common Pleas of Chester County
                   Civil Division at No(s): No. 2013-11158


BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.
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MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 25, 2017

      Bonnie Cruickshank-Wallace (“Wife”) and William Wallace (“Husband)

(collectively “Appellants”) appeal from orders granting summary judgment to

the defendants and dismissing these actions. We affirm.

      Both of these appeals involve the same underlying facts, so we have

consolidated them for the sake of judicial economy. Three other lawsuits are

pertinent to the procedural history of these matters.

                  Mercantile versus Husband and Wife

      In 1998, Mercantile County Bank (“Mercantile”) filed an action against

Wife, Husband, and Husband’s company.        Mercantile had loaned Husband

and his company approximately $750,000, which was not repaid. Mercantile

joined Wife as a party defendant based upon its position that Husband had

made fraudulent conveyances to her that could be used to satisfy the debt

incurred by Husband and his company. The trial court in that case concluded

that Wife was liable to Mercantile for $20,000 in fraudulent transfers made

to her.

                          Wife versus Mercantile

      Even though Mercantile had prevailed against her in the action that it

brought, Wife thereafter filed a lawsuit against Mercantile for abuse of

process.   In that case, Wife was represented by Klehr, Harrison, Harvey,

Branzburg, & Ellers (“Klehr”).     Husband was not a party plaintiff, and

Mercantile prevailed in the abuse of process action Wife brought against it.

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                                 Wife versus Klehr

      Wife then instituted an action against Klehr for legal malpractice in

connection with Klehr’s representation of her in the abuse-of-process case

against Mercantile. Husband was not a named plaintiff in the lawsuit against

Klehr. Klehr filed a counter-claim against Wife for unpaid legal bills. Wife

initially was represented by Gerard P. Egan, Esquire and the Egan Young

Law Firm (“Egan”). Egan hired Neil E. Jokelson, Esquire, of Neil E. Jokelson

& Associates (“Jokelson”) as the expert witness in the legal malpractice suit

against Klehr, and Mr. Jokelson issued an opinion that Klehr committed legal

malpractice in connection with Klehr’s representation of Wife in her case

against Mercantile.   Klehr was granted summary judgment on Wife’s legal

malpractice claim.

      After summary judgment was entered against Wife on her cause of

action, Wife fired Egan and hired Anne DelCollo, Esquire.       Ms. Delcollo

defended Wife on the counter claim presented by Klehr, but Klehr prevailed

and was awarded unpaid legal fees in the amount of $46,661.31.

      Wife terminated the services of Ms. DelCollo and hired James S.

Tupitza of Tupitza and Associates PC (“Tupitza”) for purposes of appealing

the trial court’s decisions.   Tupitza did not file a court-ordered Pa.R.A.P.

1925(b) statement, and Wife did not prevail in her appeal in the Klehr

lawsuit.




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                           Present Two Actions

      Husband and Wife filed a legal malpractice case at civil action number

2013-11158 against Egan and Jokelson, and they have proceeded pro se

throughout these proceedings. Even though the pleadings averred that Egan

and Jokelson committed malpractice in connection with Wife’s case against

Klehr, Husband and Wife maintained that they did not need the testimony of

an expert witness to establish the merits of their case.       The trial court

granted summary judgment in favor of Egan and Jokelson. The appeal at

2621 EDA 2016 followed.

      At civil action number 2013-10242, Husband and Wife sued Tupitza

and three insurance companies, CNA Financial Corporation, Continental

Casualty Company, and Columbia Casualty Company (the “Insurers”).

Husband and Wife alleged that the Insurers were the legal malpractice

carriers for both Tupitza and Klehr, and that the Insurers conspired to have

Tupitza commit legal malpractice in the litigation filed by Wife against Klehr.

The conspiracy for Tupitza to commit malpractice purportedly was formed to

prevent Wife from prevailing against Klehr, which would have been

detrimental to the Insurers.   Husband and Wife claimed in that case that

they did not require the testimony of an expert witness to prove that

Insurers and Tupitza conspired for Tupitza to commit malpractice. The trial

court concluded that an expert witness was necessary to pursue the claim of




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legal malpractice, and it granted summary judgment to defendants therein.

The appeal at 2403 EDA 2016 followed.

                                   Appeals

      In the appeal involving Egan and Jokelson as Appellees, Appellants

raise these issues:

      1. Whether to REVERSE Judge Mahon 1925(b) Order (Exh. C)
      "deemed waived" the Wallaces' Concise Statement of rulings
      challenged?

      2. Whether to REVERSE Judge Mahon summary judgment Order
      (Exh. A) "claims against all Defendants fail for failure to certify
      expert testimony is required" and Rule 1033 Motion to Amend
      Complaint filed April 1, 2016, is DENIED" and p 3 para. 3 " Mr.
      Wallace has no legitimate interest in the suits brought against
      Defendants Egan and Jokelson "?

      3. Whether to REVERSE Judge Mahon Order (Exh. B) "all
      outstanding Motions are DENIED as moot" with regard only to
      the following motions (set forth in the 1925(b) Concise
      Statement)? and either GRANT these motions as a matter of law
      or remand these motions for first time consideration on their
      merits:

            (1) 9/25/15 second motion in this case to disqualify
            Marshall Dennehey law firm for conflict of interest
            and intentional spoliation of subpoenaed documents?

            (2) Rule 4019 sanctions against Jokelson            for
            intentional spoliation of subpoenaed documents?

            (3) for summary judgment against Jokelson and
            Egan?

Appellants’ brief at 2 (2621 EDA 2016).

      Appellants present these averments as to the disposition of their

lawsuit against Tupitza and the Insurers:

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     1. Whether to REVERSE Judge Mahon 1925 (b) Order (Exh. D)
     "deemed waived" the Wallaces' Concise Statement of rulings
     challenged?

     2. Whether to REVERSE Judge Mahon summary judgment Order
     (Exh. A) "claims against all Defendants fail for failure to certify
     expert testimony is required?

     3. Whether to REVERSE Judge Mahon Order (Exh. B) "all
     outstanding Motions are DENIED as moot" with regard only to
     the following motions (set forth in the 1925(b) Concise
     Statement)? and either GRANT these motions as a matter of law
     or remand these motions for first time consideration on their
     merits:

           (1) Pa.R.C.P.    1033   amend    their   2d   Amended
           Complaint?

           (2) reconsideration of Judge Cody Order (Exh. C)
           sustaining CNAF preliminary objection regarding
           jurisdiction of CNAF?

           (3) Rule 4019 sanctions against Tupitza for
           intentional spoliation of subpoenaed documents? and
           summary judgment motion against Tupitza?

           (4) Rule 4019 sanctions against Continental
           /Columbia for repeated refusal to be Rules 4007.1(e)
           deposed re. 4007.1(d)(1) requested documents? and
           summary judgment motion against the three CNA
           Defendants?

           (5) 9/25/15 second motion in this case to disqualify
           Marshall Dennehey for a conflict of interest as well as
           intentional spoliation of subpoenaed documents?

Appellants’ brief at 2 (2403 EDA 2016).

     The crucial positions of Appellees, Egan, Jokelson, Tupitza, and

Insurers, in these appeals are identical.       First, Appellees argue that

Appellants waived all their issues by filing an impermissibly vague Pa.R.A.P.

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1925(b)   statement.     Appellees   alternatively   maintain   that   summary

judgment was properly granted in these cases as Appellants needed the

opinion of an expert witness to prevail.

      Even though the trial court herein concluded that Appellants’ Pa.R.A.P.

1925(b) statement was too vague and confusing, we decline to find waiver

and prefer to address the merits of the trial court’s decision to grant

summary judgment in these actions.         While Appellants present prolix and

confusing argument on the pertinent issues, we agree with Appellees that

the dispositive issue herein is whether Appellants are correct in their

assertion that they do not need expert testimony in order to establish the

merits of their claims in these lawsuits.    We conclude that, absent expert

testimony, Appellants cannot establish the merits of their legal malpractice

claims. We therefore affirm.

      This Court may overturn an order granting summary judgment if the

appealing party establishes that the court either committed an error of law

or abused its discretion. Finder v. Crawford, 2017 PA Super 210, 2017 WL

28740492017 (filed July 6, 2017) (citation omitted).

          In evaluating the trial court's decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient

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      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

Id. (citation omitted).

      In their case against Egan and Jokelson, Appellants averred that those

defendants committed malpractice in connection with activities in Wife’s case

against Klehr.   As to the lawsuit with Tupitza and Insurers as defendants,

Appellants alleged that Insurers and Tupitza conspired for Tupitza to commit

legal malpractice so that Wife could not prevail against Klehr in Wife’s legal

malpractice case against Klehr. As we articulated in Sokolsky v. Eidelman,

93 A.3d 858, 862 (Pa.Super. 2014) (citation omitted), “a legal malpractice

action in Pennsylvania requires the plaintiff to prove that she had a viable

cause of action against the party she wished to sue in the underlying case

and that the attorney she hired was negligent in prosecuting or defending

that underlying case (often referred to as proving a ‘case within a case’).”

Accordingly, Appellants must satisfy the following tripartite test: “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.”            Id.

(emphasis added).




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      In both of these cases, Appellants have consistently and adamantly

maintained that they do not need an expert witness.        Our Supreme Court

observed in Rizzo v. Haines, 555 A.2d 58, 66 (Pa. 1989), “expert

testimony is essential” in a case involving breach of a standard of care when

the question of whether the defendant failed to exercise ordinary skill and

knowledge is beyond the knowledge of the average person. Only when the

issue is simple and the lack of skill is obvious can a plaintiff dispense with an

expert opinion to establish malpractice.      Id. Essentially, the lack of skill

rendered by a professional must be self-evident or a plaintiff’s failure to

adduce expert testimony is fatal to his case. See Vazquez v. CHS Prof'l

Practice, P.C., 39 A.3d 395 (Pa.Super. 2012).

      In their appeals, Appellants fail to even delineate how the performance

of Egan and Jokelson was substandard in the matter of Wife against Klehr.

Thus, Appellants have not proven that breach of the applicable standard by

Egan and Jokelson was so obvious that an ordinary layperson would

understand that they exercised a lack of ordinary skill. As to Insurers and

Tupitza, the malpractice concerned Tupitza’s failure to file a Pa.R.A.P.

1925(b) statement. A layperson would not know what a Pa.R.A.P. 1925(b)

statement is, nor would they understand its legal significance.            Thus,

whether Tupitza committed malpractice when he did not file a Pa.R.A.P.

1925(b) statement would not be obvious to an ordinary person, and expert

testimony on that issue is required. We recognize that Appellants averred

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the existence of a conspiracy among Insurers and Tupitza, but the supposed

object    of    that    conspiracy   nevertheless   was   for   Tupitza      to   commit

malpractice.           Hence,   whether   Tupitza   deviated    from   the    applicable

professional standard of care remains an element of their case.

       We also observe that Appellants have completely overlooked that they

must prove the merits of their case within a case, which was outlined in

Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 641–42

(Pa.Super. 2016), noting that a “legal malpractice action is distinctly

different from any other type of lawsuit brought in the Commonwealth . . .

because        a plaintiff must prove a case within a case[.]”         Specifically, the

plaintiff averring legal malpractice must “establish by a preponderance of the

evidence that he would have recovered a judgment in the underlying

action.” Id. at 641-42. Therefore, “only after the plaintiff proves he would

have recovered a judgment in the underlying action” can the plaintiff

“proceed with proof that the attorney he engaged to prosecute or defend 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 the plaintiff from being properly compensated for his loss.” Id. at

642.

       Appellants wholly overlook that they must establish in these lawsuits

that Klehr committed malpractice and that they would have prevailed in their

abuse of process case against Mercantile if Klehr had not deviated from the

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applicable standard of care.    Appellants were required to present expert

testimony to establish that Klehr improperly litigated Wife’s case against

Mercantile and that Wife would have prevailed against Mercantile absent

Klehr’s deficit performance. Simply put, Appellants needed the opinion of an

expert witness in their case within a case.

      Appellants’ argument is identical in these two appeals.        Their first

position is that their cases are not premised upon malpractice but an

intentional tort committed by the Appellees herein, which obviates the need

for expert testimony. Appellants’ brief at 17 (2403 EDA 2016); Appellants’

brief at 18 (2621 EDA 2016). First, Appellants mischaracterize their lawsuits.

The torts averred require them to prove that the defaults committed by

Klehr in the abuse-of-process case caused Wife to lose, and that Appellees’

actions in the legal malpractice case against Klehr resulted in Wife’s loss in

that case, where she would have prevailed absent the activities of Appellees.

The lawsuits at issue in these appeals do not involve intentional torts.

      In support of this proposition, Appellants rely upon Smith v. Griffiths,

476 A.2d 22 (Pa.Super. 1984), which does not advance their cause.

Therein, Smith filed a lawsuit against Griffiths, who was representing Smith’s

wife in a marital case.      Smith averred that Griffiths defamed him in

connection with averments made in the marital case and that Griffiths

caused injury to Smith by giving incorrect legal advice to Smith’s wife.

Griffiths filed preliminary objections, which were granted.     We concluded

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that anything stated by Griffiths in the divorce case as to Smith was

protected by an absolute privilege; hence, Smith did not have a cause of

action for defamation. We upheld the dismissal of the averments regarding

legal advice given to Smith’s wife on the basis that Griffiths owed no duty to

Smith in connection with the legal counsel given to Smith’s wife. The case in

question did not discuss, to any extent, the need for expert testimony for

intentional torts.

      Appellants also assert that their lawsuits do not contain professional

negligence claims, but allege “intentional misrepresentation,” which “does

not set forth a professional liability claim, and “promissory esttoppel [sic],”

which also is not a position that Appellees deviated from an acceptable

professional standard. Appellants’ brief at 17 (2403 EDA 2016); Appellants’

brief at 18 (2621 EDA 2016).

      We reject Appellants’ position that their complaints set forth viable

causes of action for intentional misrepresentation or promissory estoppel.

Appellants did not offer a single statement or promise made by Appellees to

support   their   suggestion   that   these    two   actions   involve   intentional

misrepresentation or promissory estoppel. They violated Pa.R.C.P. 1019(a)

by cursorily asserting intentional misrepresentation and promissory estoppel

causes of action but not setting forth the “material facts on which [their]

cause of action” was based. Pa.R.C.P. 1019(a) (“The material facts on which

a cause of action or defense is based shall be stated in a concise and

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summary form.”) “Pennsylvania is a fact-pleading state; a complaint must

not only give the defendant notice of what the plaintiff's claim is and the

grounds upon which it rests, but the complaint must also formulate the

issues by summarizing those facts essential to support the claim.” Lerner v.

Lerner, 954 A.2d 1229, 1235 (Pa.Super. 2008). Appellants’ complaints did

not   contain   causes   of   action   for   intentional   misrepresentation   and

promissory estoppel because they failed to aver the specific facts essential

to support those claims. Likewise, on appeal, Appellants fail to delineate any

statement or promise made by any Appellee that would constitute an

intentional misrepresentation or support a cause of action for promissory

estoppel.   The present cases are straightforward legal malpractice cases.

Cf. Krauss v. Claar, 879 A.2d 302 (Pa.Super. 2005) (claims against

attorney did not constitute professional liability claims).

      Finally, Appellants suggest that when the “claim is for ‘negligence

rising to the level of gross incompetence’ no expert testimony is required.”

Appellants’ brief at 17 (2403 EDA 2016); Appellants’ brief at 18 (2621 EDA

2016). Appellants cite Smith v. Yohe, 194 A.2d 167 (Pa. 1963), involving

the doctrine of res ipsa loquitur, which applies when the negligence is

obvious and speaks for itself.          We have delineated above that the

malpractice in these lawsuits is not so obvious that an ordinary layperson

would be able to ascertain that the Appellees committed malpractice.

Appellants did not even assert what Egan and Jokelson did that would

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constitute such an obvious deviation from the standard of care that expert

testimony was unnecessary. A layperson would not be able to ascertain that

Tupitza’s action was obviously a breach of the applicable standard of care.

Additionally, Appellants do not advance how Klehr’s deficient performance in

the abuse-of-process case against Mercantile was so obvious that an

ordinary person would understand that Klehr deviated from the applicable

standard of care and that Wife would have prevailed against Mercantile

absent Klehr’s malpractice. We thus reject Appellants’ position that they do

not need the testimony of an expert witness in these actions to establish the

merits of their cases, and we affirm the trial court’s decision to grant

summary judgment to the Appellees herein.

      Appellants also suggest that they should be afforded the opportunity

to amend their complaints. We set forth in Hill v. Ofalt, 85 A.3d 540, 557

(Pa.Super. 2014), that “the right to amend should not be withheld where

there is some reasonable possibility that amendment can be accomplished

successfully.”   In the present case, Appellants wholly fail to delineate how

they could have amended their complaints to successfully assert a cause of

action. Appellants’ brief at 14-15 (2403 EDA 2016); Appellant’s brief at 15-

16 (2621 EDA 2016). They merely block quote principles applicable in the

summary judgment context to amendment of complaints. Since Appellants

do not set forth how there was a reasonable possibility, absent expert




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testimony, that amendment would have enabled them to set forth a viable

cause of action, we decline to grant them the opportunity to amend.

     As these actions were properly dismissed due to Appellants’ insistence

that they can proceed without an expert opinion, Appellants’ remaining

issues are moot.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




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