J-S29031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MICHAEL GALLAGHER AND SHARON             :   IN THE SUPERIOR COURT OF
 GALLAGHER H/W                            :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 CARIN A. O'DONNELL, ESQUIRE              :
 AND STARK & STARK, P.C.                  :   No. 557 EDA 2017
                                          :
                                          :
 APPEAL OF: MICHAEL GALLAGHER             :

             Appeal from the Judgment Entered January 4, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): April Term, 2014 No. 02810


BEFORE:    PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JULY 16, 2018

      Appellants/Plaintiffs Sharon and Michael Gallagher appeal from the

judgment entered in the Court of Common Pleas of Philadelphia County in

favor of Appellees/Defendants Carin A. O’Donnell, Esq., and Stark & Stark,

P.C., in this legal malpractice action. We affirm.

      Mr. Gallagher sustained a serious injury to his ankle during a work-

related accident, and Appellees represented him in his workers’ compensation

claim and both his wife and him in their third-party personal injury claim. As

part of the settlement reached in the third-party claim, the Gallaghers signed

a general release on future claims consistent with Appellees’ legal advice.

      Two months later, Dr. Ramon Lopez, D.P.M., performed the first of

several unsuccessful surgical operations on Mr. Gallagher’s injured ankle,


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29031-18



prompting the Gallaghers to consider filing a medical malpractice claim against

Dr. Lopez. However, the Gallaghers never filed suit, as they determined the

general release they had signed in settlement of their third-party claim

precluded a medical malpractice claim alleging negligent treatment of Mr.

Gallagher’s injured ankle. Instead, the Gallaghers instituted the present legal

malpractice action against Appellees for their role in advising them to sign the

general release in the third-party lawsuit without explaining the full effect of

such a release.

      Appellees filed preliminary objections in which they asserted, inter alia,

that the Gallaghers’ claims should be dismissed because the release would not

have precluded Mr. Gallagher from filing a medical malpractice claim. The

release, Appellees maintained, only released “‘AMQUIP CRANE RENTAL, LLC,

SUNOCO, and all their respective insurers, and their affiliates and/or

subsidiaries, servants, agents, employees and representatives, as well as their

successors and assigns (hereinafter collectively referred to as “Releasees”),

from any and all actions . . . .’   Dr. Lopez was not released.”     Appellees’

Preliminary Objections, filed 10/13/14, at 8.

      In the Gallaghers’ Answer to Appellees’ preliminary objections, they

denied that the release applied only to the named parties. Because the release

stated it applied to “specifically, but not limited to, all claims of any kind,

character, or description which have been or could have been asserted against

the Releasees[,]” it applied to additional parties, as well, the Gallaghers




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maintained. This broad application, the Gallaghers continued, was reinforced

by additional language in the release stating:

        IT IS UNDERSTOOD AND AGREED that this is a full and final
        release of all claims of every nature and kind whatsoever, and
        releases claims that are known and unknown, suspected and
        unsuspected, and that the amount paid herein is in the nature of
        a compromise settlement and is not to be considered an admission
        of liability, liability being expressly denied.

Plaintiff’s Answer to Preliminary Objections, filed 12/12/14, at ¶ 24; Plaintiff’s

Memorandum of Law in Opposition to Preliminary Objections, filed 12/12/14,

at 3.

        Prior to trial, the parties jointly stipulated that Appellees’ motion in

limine to preclude the Gallaghers’ claims based on the release raised a matter

of law that would dispose of the matter if the court granted the motion. This

was so because the Gallaghers’ legal malpractice claim could prevail only if

the court determined that the release barred a medical malpractice claim

against Dr. Lopez and that Appellees failed to advise him of this effect. The

parties agreed that if the court granted Appellees’ motion, it would enter

judgment for Appellees. If, instead, the court denied the motion, the joint

stipulation provided that the parties would proceed to a final and binding

arbitration before the Judge Richard Klein (Ret.).

        After entertaining oral argument on the motions, the trial court granted

Appellees’ motion and entered judgment in favor of Appellees and against the

Gallaghers on January 4, 2017. Specifically, the court determined:




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       [t]he treatment received by [Mr. Gallagher] from Dr. Lopez as a
       result of the [Sunoco] incident is not included in that clause
       [appearing in the release]. Any potential suit [the Gallaghers]
       may have against Dr. Lopez as a result of the treatment for the
       injury occurring out of the accident [is] a separate occurrence.
       Any potential claim for injuries caused by Dr. Lopez would be
       subject to [a] medical malpractice claim against the doctor, and
       would not be related to the injuries which occurred on September
       28, 2006, at the Sunoco Refinery.

Trial Court Opinion, 12/29/17, at 5.1 This timely appeal followed.

       The Gallaghers present the following question for our consideration:

       DID THE LOWER COURT ERR IN GRANTING THE MOTION IN
       LIMINE TO PRECLUDE [PLAINTIFFS/THE GALLAGHERS]
____________________________________________


1 The trial court would go on to opine in its Pa.R.A.P. 1925 opinion, “Although
Dr. Lopez is an affiliate of Sunoco, the release did not include actions by
affiliates of Sunoco after the September 28, 20006 [sic] incident.” TCO, at 5.
Both the Gallaghers and Appellees agree on appeal, however, that there is no
factual basis for the apparent factual finding that Dr. Lopez was an affiliate of
Sunoco. See Brief for the Gallaghers, at 16 (noting the trial court “inexplicably
states that Dr. Lopez is ‘an affiliate’ of Sunoco[,]” as “there is nothing in the
record to support this statement[.]”). The Gallaghers complain further in their
brief that the trial court engaged in a finding of fact that was not part of the
motion and “was not for the [trial court] to determine. [The Gallaghers are]
unsure of what is meant by ‘affiliate’ and even more concerned that this may
have played some part in the Decision.” Id., 16-17.

In the Gallaghers’ reply brief, however, they argue for the first time that
remand is required because the court’s apparent factual finding would
necessarily bring Dr. Lopez’s alleged negligent surgery within the scope of the
release, as the release applied to affiliates of Sunoco. We disagree with this
assessment, not only because both parties agree there is no factual support
for what appears by all accounts to be a mistaken finding made by the trial
court, but also because of our determination, explained infra, that the release
may not fairly be said to have contemplated a separate medical malpractice
cause of action that did not accrue until months after the parties executed the
release. This conclusion takes the alleged negligent surgery outside the scope
of the release, even if Dr. Lopez were an affiliate of Sunoco who possessed
standing to assert the release as a defense to the medical malpractice claim
against him.

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      FROM PURSUING A CLAIM BASED ON THE LANGUAGE OF
      THE RELEASE AND ENTERING JUDGMENT IN FAVOR OF
      [DEFENDANTS/APPELLEES] WHERE THE GALLAGHERS
      HAVE BROUGHT A LEGAL MALPRACTICE CLAIM AGAINST
      APPELLEES ALLEGING THEY FAILED TO EXPLAIN TO THE
      GALLAGHERS THAT THEY WERE GIVING UP ANY RIGHT TO
      BRING ANY ADDITIONAL ACTION ARISING FROM [MR.
      GALLAGHER’S] INJURIES, INCLUDING A POSSIBLE
      MEDICAL MALPRACTICE CLAIM, WHERE THE RELEASE WAS
      SPECIFICALLY NOT LIMITED TO INJURIES SUFFERED OR
      CLAIMS THAT COULD HAVE BEEN BROUGHT AGAINST THE
      SETTLING PARTIES AND IT IS SETTLED LAW THAT THE
      EFFECT OF THE RELEASE MUST BE DETERMINED FROM THE
      ORDINARY MEANING OF ITS LANGUAGE?

Appellant’s brief, at 5.

      “[A] court's decision to grant or deny a motion in limine is subject to an

evidentiary abuse of discretion standard of review.”      Commonwealth v.

Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (en banc).

      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.

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

citations omitted).

      The Gallaghers assert that the sole issue before us is whether the scope

of the release may include future claims against a non-named individuals.

They direct us to the following sentence within the release as supportive of

their position that the release may fairly be read to contemplate the future

medical malpractice claim against Dr. Lopez:




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                             GENERAL RELEASE

      . . . Michael Gallagher and Sharon Gallagher . . . do hereby . . .
      acquit and forever discharge:

      Defendants, AMQUIP CRANE RENTAL, LLC, SUNOCO, and all their
      respective insurers, and their affiliates and/or subsidiaries,
      servants, agents, employees and representatives, as well as their
      successors and assigns (hereinafter collectively referred to as
      “Releasees”), from any and all actions, causes of action, claims,
      demands, damages liabilities or suits of any kind, in law or in
      equity, whether known or unknown, including but not limited to
      all claims and liability arising out of or in any way related to
      injuries and/or damages sustained as a result of the incident that
      occurred on or about September 28, 2006, located at the Sunoco
      Refinery in Philadelphia, Pennsylvania, . . . including specifically,
      but not limited to, all claims of any kind, character or description
      which have been or could have been asserted against the
      Releasees.

Appellant’s brief, at 6-7 (quoting General Release, dated 10/8/2009, at 1)

(emphasis added).

      According to the Gallaghers, the two instances where the release uses

the expansive language “including but not limited to” when setting forth claims

subject to the release show that the release was limited neither to injuries

caused by the September 28, 2006, incident nor to claims that could have

been asserted against the Releasees. They argue, therefore, that their release

is similar to releases examined in other cases where our courts have

recognized a broadly-worded, general release may release more parties than

those specifically named. See Buttermore v. Aliquippa Hosp., 561 A.2d

733, 735 (Pa. 1989) (holding release discharging particular individual and



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“any and all other persons . . . whether herein named or not” applied to all

tort-feasors despite fact they were not specifically identified in release). Id.

at 735.   We discern no such similarity.        Because the precedential cases

involved releases that plainly and explicitly applied to all other persons

potentially liable for any future damages related to the underlying event in

question, they are inapposite to the case sub judice.

      For example, the Gallaghers cite Fortney v. Callenberger, 801 A.2d

594 (Pa.Super. 2002) to advance their position. In Fortney, Daniel Fortney

filed a medical malpractice action alleging negligent emergency surgical

treatment of an ankle injury he sustained in a motor vehicle accident.       In

response, the surgeon raised the defense of a general release Fortney had

executed in settling his motor vehicle claim.

      The Fortney release stated the following:

      [Fortney] hereby releases and forever discharges Hattie Sweeney,
      Robert Sweeney, Brandon Moyer, their heirs, executors,
      administrators, agents and assigns and all other persons, firms
      or corporations liable or, who might be claimed liable, none
      of whom admit liability to the undersigned but all expressly deny
      any liability, from any and all claims, demands, damages, actions,
      causes of action or suits of any kind or nature whatsoever, and
      particularly on account of all injuries, known and unknown, both
      to person and property, which have resulted or may in the future
      develop from an accident which occurred on or about the 3 day of
      January, 1996, at or near Ayersville, PA.
      ¶
      Further, the release state[d]:

      [Fortney] hereby declares that the terms of this settlement have
      been completely read and are fully understood and voluntarily
      accepted for the purpose of making a full and final compromise
      adjustment and settlement of any and all claims, disputed or

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J-S29031-18


      otherwise, on account of the injuries and damages above
      mentioned, and for the express purpose of precluding forever any
      further or additional claims arising out of the aforesaid accident.

Id., at 596 (emphasis added).

      Under our standard of review, we set out to “determine[] the effect of

[Fortney’s] release using the ordinary meaning of its language and interpret[]

the release as covering ‘only such matters as can fairly be said to have been

within the contemplation of the parties when the release was given.’” Id., at

597 (quoting Vaughn v. Didizian, 648 A.2d 38, 40 (Pa.Super. 1994))

(citations omitted). See also Bowman v. Sunoco, Inc., 620 Pa. 28, 41, 65

A.3d 901, 909 (2013)(recognizing “[a] long line of Pennsylvania cases has

held that a release covers only those matters which may be fairly said to have

been within the contemplation of the parties when the release was given.”)

(citation omitted). We noted, further, that releases are strictly construed so

as not to bar the enforcement of a claim that had not accrued at the date of

the execution of the release. Vaughn, 648 A.2d at 40 (citations omitted).

      First, examining the language of Fortney’s release, we observed it

discharged from liability not only specified persons but also “all other persons,

firms or corporations liable or, who might be claimed liable . . . from any and

all claims . . . of any kind or nature whatsoever, and particularly on account

of all injuries . . . which have resulted or may in the future develop from [the

accident in question].” Fortney, at 598. Therefore, we found the release was

potentially applicable to persons not named therein.




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       In this regard, we specifically relied on Buttermore, which, as noted

above, held language releasing “any and all other persons . . . whether herein

named or not” potentially discharged all tort-feasors regardless of whether the

release failed to identify them in particular. Id. at 735. Virtually identical

language in Fortney’s release in settlement of the motor vehicle action,

therefore, clearly gave the surgeon standing to assert the release as a defense

to Fortney’s subsequent malpractice claim.2

____________________________________________


2  See also Collas v. Garnick, 624 A.2d 117 (Pa.Super. 1993), for the
proposition that the discharge of “all other parties known or unknown” from
liability potentially reached persons unnamed in the release. In Collas, Marie
Collas filed a legal malpractice case against her former lawyer who had
advised her to sign a general release as part of the settlement of her motor
vehicle-related personal injury action. The “general release [], by its terms,
released and discharged the other driver and all other parties, known or
unknown, who might be liable for the damages sustained.” Id. at 119
(emphasis added).

Before signing, Collas asked her lawyer if the release would affect her plan to
sue the manufacturer of her vehicle’s seat belt system or any other tortfeasor.
Her lawyer assured her that a cause of action against such parties would
survive the release.        In reliance on the lawyer’s advice, she signed.
Subsequently, her action against the seat belt manufacturer was dismissed
after the trial court held her action was barred by the prior release. This Court
affirmed and the Pennsylvania Supreme Court denied allocatur.

In Collas’ ensuing legal malpractice case, the trial court sustained the lawyer’s
preliminary objections on recognized public policy dismissing legal malpractice
complaints where the client agreed to a settlement only to allege, thereafter,
the inadequacy of the settlement.         See Muhammed v. Strassburg,
McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991)
(barring legal malpractice suits filed by clients who agreed to negotiated
settlement but later regret its terms). This Court, however, distinguished
Muhammed on its facts, and reversed.
                                                               (footnote cont’)



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       Next, we inquired into whether it could fairly be said that the contracting

parties anticipated the malpractice claim when they executed Fortney’s

release.     Prior to signing, Fortney had been experiencing extensive post-

operative problems with his ankle for months despite physical therapy, and

he reported these problems to the tort-feasor motorist’s insurance company.

Therefore, because the medical malpractice cause of action accrued prior to

the execution of the release, we concluded that the release contemplated the

malpractice action, such that Fortney discharged the surgeon of any possible

liability when he signed it.

       In contrast to this governing decisional law, the case sub judice involves

neither release language discharging “all other liable or potentially liable

persons” nor facts demonstrating an accrual of the Gallagher’s medical

malpractice cause of action prior to the execution of the release.

       The ordinary meaning of the language in the Gallaghers’ release shows

that it discharges only a defined set of persons consisting of named entities

and their “respective insurers, and their affiliates and/or subsidiaries,
____________________________________________


Unlike the plaintiff in Muhammed, the Court reasoned, Ms. Collas’ legal
malpractice claim complained not of the settlement reached in her motor
vehicle accident but of counsel’s reassurance during settlement negotiations
that the release would not preclude a planned separate action against the
seatbelt manufacturer for Ms. Collas’ injuries.

Moreover, and most pertinent to the case sub judice, because the general
release clearly applied to “all other parties, known or unknown, who might be
liable for the damages sustained” by Ms. Collas, the release potentially
reached unnamed persons, and counsel rendered negligent advice if the
averments of the complaint against counsel were correct, we concluded.
Collas, 624 A.2d at 121.

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servants, agents, employees and representatives, as well as their successors

and assigns (collectively referred to as Releasees)….” The Gallaghers argue

that expansive language elsewhere discharging the Releasees from any and

all actions, “including but not limited to” all claims and liability arising out of

or in any way related to injuries and/or damages sustained from the Sunoco

Refinery incident necessarily expands the release to apply to individuals

unnamed. The “including but not limited to” phrase in question, however,

expands not the persons potentially affected under the release but, instead,

only the kinds of claims potentially filed against the defined set of Releasees.

       Nor do the facts support the conclusion that the Gallaghers’ medical

malpractice claim against Dr. Lopez had accrued at the time they executed

the release. Unlike in Fortney, where the plaintiff signed the release only

after notifying the tortfeasor’s motor vehicle insurer of lingering complications

with his ankle after unsuccessful surgical intervention, the Gallaghers signed

the release months before Mr. Gallagher underwent his first surgery. As such,

it cannot fairly be said the contracting parties contemplated the release would

apply to a future malpractice action for a surgery that did not yet occur.3
____________________________________________


3 Also instructive on the question of accrual is Vaughn, where we held a
general release discharging “all known and unknown claims against all known
and unknown parties arising from injuries sustained in the automobile
accident[]” did not bar a medical malpractice action where the parties signed
the release eight months before the surgery to repair Vaughn’s accident-
related injury. Because the cause of action in the medical malpractice case
did not accrue until after the signing of the release, we reasoned, the parties
could not have contemplated future negligent surgery that was alleged in the



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       Consequently, there is no merit to the Gallaghers’ argument that the

release they signed in settlement of their third-party claim discharged Dr.

Lopez from potential liability for negligent surgical treatment of Mr. Gallagher’s

ankle occurring two months after execution of the release. The release did

not include language expanding the scope of the release beyond the set of

named entities and others with a defined relationship to such entities, who

were collectively named as “Releasees.”            Nor can we say Mr. Gallagher’s

medical malpractice cause of action accrued at the time of the release when

another two months would pass before Dr. Lopez performed the first of several

ankle surgeries in question. For these reasons, we discern no error with the

court order granting Appellees’ motion in limine and the ensuing entry of

judgment in Appellees’ favor.

       Judgment affirmed.




____________________________________________


malpractice action. See Bowman, 65 A.3d at 909 (“Waivers which release
liability for actions not accrued at the time of the release are generally only
invalid if they involve future actions entirely different than ones contemplated
by the parties at the time of the release. . . . Vaughn involved a waiver that
involved actions not anticipated by the waiver or release.”).

Here, as in Vaughn, we cannot fairly say the release anticipated a medical
malpractice action based on future negligent medical treatment for Mr.
Gallagher’s accident-related injury. As such, the release would not have
precluded the Gallaghers from filing a timely medical malpractice claim against
Dr. Lopez.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/18




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