J-S69041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARL HEMPHILL                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

DAVID M. SIEGEL, DAVID R. GALLAGHER
AND SIEGEL & GALLAGHER, LLC

                            Appellees                 No. 866 EDA 2015


                    Appeal from the Order February 17, 2015
               In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2012-004004


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                           FILED: January 21, 2016

       Appellant, Carl Hemphill, appeals from the order entered on February

17, 2015 granting a motion for summary judgment filed by David M. Siegel,

David R. Gallagher, and Siegel & Gallagher, LLC (Siegel & Gallagher) and

entering judgment in favor of Siegel & Gallagher on Appellant’s five-count

complaint1 against them. Upon review, we affirm.

       The trial court summarized the facts of this case as follows:

         MJC Inc. and/or MJC Labor Solutions, LLC (hereinafter
         collectively “MJC”) provided direct landscaping services
         and/or labor staffing by leasing “guest worker employees”
         to other landscapers for their use. MJC was the employer of
____________________________________________


1
   Appellant’s complaint alleged professional negligence, negligence,
respondeat superior, breach of contract, and violations of the Unfair Trade
Practices and Consumer Protection Law (UTPCPL).
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        guest workers present in this country on temporary work
        visas and MJC was responsible for those guest workers in
        accordance with applicable labor laws. On January 10,
        2008, [Appellant], Joseph P. Hemphill and Michael R.
        Hemphill, individually, and as [] officers, shareholders and
        partners of MJC Company Lawnworks, Inc., MJC Labor
        Solutions, LLC and MJC Company, d/b/a The Lawnworks
        Company, a partnership, entered into a consent judgment
        in the Eastern District of Pennsylvania, United States
        District Court at docket number 07-5495, with the Secretary
        of Labor, to pay for overtime compensation to certain
        current and former employees of MJC to settle Department
        of Labor litigation in which they were named [d]efendants.
        MJC was a defendant in the Department of Labor litigation
        and also in a class action lawsuit that alleged that they
        failed to properly pay the guest workers. The class action
        lawsuit and the Department of Labor litigation resulted in a
        judgment and/or settlement of over $115,000.00.

        In the aftermath of both above-described litigation matters,
        [six] lawsuits were filed against former clients of the MJC
        entities for contribution to the judgment and settlement[.]

                          *         *           *

        MJC and [Appellant] retained a number of attorneys over a
        period of approximately six years to represent them in
        these six (6) matters. The instant lawsuit [arose] from the
        alleged deficiencies in [Siegel & Gallagher’s] legal
        representation in these six (6) underlying suits.


Trial Court Opinion, 6/2/2015, at 4-6 (footnotes and record citations

omitted).

     Procedurally, this case progressed as follows:

        [Appellant,] on May 11, 2012, filed a five-count [c]omplaint
        [as set forth above] containing one hundred and nineteen
        (119) averments against [Siegel & Gallagher].

                          *         *           *



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       Preliminary [o]bjections filed by [Siegel & Gallagher] were
       overruled on February 21, 2013. [Siegel & Gallagher] filed
       an [a]nswer with [n]ew [m]atter on April 23, 2013 which
       raised many defenses, including, inter alia, lack of causation
       for any alleged damages and a lack of standing by
       [Appellant] “to pursue recovery for any purported damages
       related to underlying matters for which he was not a named
       party.”

       The case was assigned to [Judge Christine Fizzano Cannon]
       on June 10, 2013. Trial was initially set for [the trial
       court’s] November 12, 2013 term. Continuances sought by
       both counsel resulted in postponements to January 2014,
       September 2014 and, finally, the January 5, 2015 to
       January 30, 2015 trial term. No additional continuance was
       granted. On December 17, 2014, [Siegel & Gallagher] filed
       a [m]otion for [s]ummary [j]udgment and supporting
       [m]emorandum of [l]aw.         The [m]otion for [s]ummary
       [j]udgment was supported by sixteen (16) exhibits, which
       included a copy of the [c]omplaint, the retainer agreement,
       portions of the deposition of [Appellant], copies of dockets,
       court orders, correspondence, bankruptcy records relating
       to an underlying proceeding and unanswered discovery
       requests propounded during this litigation. [Appellant’s]
       response to the [m]otion for [s]ummary [j]udgment was
       due on January 16, 2015, however, on that date,
       [Appellant] requested additional time to file a response.
       [Appellant’s] [o]pposition to [Siegel & Gallagher’s] [m]otion
       for [s]ummary [j]udgment was filed on January 26, 2015
       (after the late response was permitted by [the trial court]).
       The relevant pleadings were closed, discovery was
       completed, and the date had passed for the submission of
       expert reports [(which had been set for four weeks prior to
       trial)]. [Appellant’s] response did not include any exhibits
       or any supplementation to the record. [Siegel & Gallagher]
       filed a [r]eply to [Appellant’s] [a]nswer to the [m]otion for
       [s]ummary [j]udgment on February 2, 2015. The argument
       on the [m]otion for [s]ummary [j]udgment, originally
       scheduled for January 26, 2015, was postponed to February
       9, 2015. An [o]rder was entered, after argument and
       review of the entire record, on February 17, 2015, granting
       [Siegel & Gallagher’s] [m]otion for [s]ummary [j]udgment.
       Upon examination of the record, [the trial court] did not find


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         that [Appellant] could establish a cause of action in his
         five-count complaint[.]

Id. at 1-3 (original footnote incorporated; emphasis omitted). This timely

appeal resulted.2

       On appeal, Appellant presents one issue for our review:

         Did the [t]rial [c]ourt err in granting the motion for
         summary judgment submitted by [Siegel & Gallagher]?

Appellant’s Brief at 4.

       Appellant argues that the trial court erred in granting Siegel &

Gallagher’s motion for summary judgment. Initially, Appellant contends the

trial court “improperly and artificially reduced the scope” of his negligence

claims to “the six specific litigation matters described in detail in the

[c]omplaint[.]”      Id. at 8.       He claims the complaint alleges “broader

negligence than the [] six matters” including, inter alia, “[f]ailing to take

other actions necessary for the prosecution of [Appellant’s] cases[,]”

because Siegel & Gallagher were retained for “all collection matters, civil

litigation, landlord-tenant disputes, contract review, criminal litigation,

business law, and insurance matters.” Id. (emphasis in original). Appellant

avers Siegel & Gallagher have repeatedly admitted their negligence. Id. at

9. Appellant maintains there is no factual issue that his “damages include
____________________________________________


2
   Appellant filed a notice of appeal on March 12, 2015. On March 16, 2015,
the trial court filed an order directing Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied on April 6, 2015. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on June 2, 2015.



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both lost opportunity for judgments and lost legal fees, and that a jury is

required to calculate them.” Id.

      Appellant further contends the trial court erred in concluding he does

not have standing in his individual capacity to act on behalf of MJC, because:

        One thing is clear: [Appellant], the President of MJC, Inc.,
        paid the legal fee for the earlier attorneys, and paid more
        than $40,000[.00] to [Siegel & Gallagher].           [Siegel &
        Gallagher] offered nothing in the record to contest this
        unambiguous fact. If [Appellant] has no standing, no one
        does. [T]his is a question for a jury, not for legal argument
        pre-trial.

Id. at 11.

      Further, Appellant argues that expert testimony was not required

because the matters at issue are not beyond the scope of layperson

experience. More specifically, Appellant posits:

        It simply does not take expert evaluation to determine
        whether a failure to appear at an arbitration, which directly
        resulted in the dismissal of a claim, was professional
        negligence.   It does not take an expert evaluation to
        determine whether a failure to file any opposition or
        response to a motion, which directly resulted in the
        dismissal of a claim, was professional negligence.
        Consequently, no expert is required. Nor does it take an
        expert evaluation to determine [] conduct which [Siegel &
        Gallagher] have admitted.

Id. at 11-12 (emphasis in original).

      Finally, Appellant specifically challenges the dismissal of his breach of

contract and UTPCPL claims. Appellant alleges, “[t]he trial court erred in sua

sponte entering judgment on the breach of contract claim on the basis of an

arbitration clause[,]” when Siegel & Gallagher “did not raise the arbitration

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clause in their [a]nswer and [n]ew [m]atter.” Id. at 12. Appellant argues

the trial court erred in finding the UTPCPL is not applicable to legal

malpractice claims. Id. at 12-14. Citing federal case law, Appellant asserts

an UTPCPL claim challenging attorney debt collection is a viable cause of

action and he hired Siegel & Gallagher in this capacity. Id. at 13.

      When reviewing a grant of summary judgment, the appropriate scope

and standard of review are as follows:

        In reviewing an order granting summary judgment, our
        scope of review is plenary, and our standard of review is the
        same as that applied by the trial court. Our Supreme Court
        has stated the applicable standard of review as follows:
        [A]n appellate court may reverse the entry of a summary
        judgment only where it finds that the lower court erred in
        concluding that the matter presented no genuine issue as to
        any material fact and that it is clear that the moving party
        was entitled to a judgment as a matter of law. In making
        this assessment, we view 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. As our inquiry involves
        solely questions of law, our review is de novo.

        Thus, our responsibility as an appellate court is to
        determine whether the record either establishes that the
        material facts are undisputed or contains insufficient
        evidence of facts to make out a prima facie cause of action,
        such that there is no issue to be decided by the fact-finder.
        If there is evidence that would allow a fact-finder to render
        a verdict in favor of the non-moving party, then summary
        judgment should be denied.

Harris v. NGK N. Am., Inc., 19 A.3d 1053, 1063 (Pa. Super. 2011)

(citation omitted).




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      The trial court first determined that Appellant could not prove

causation or actual loss on his claims for professional negligence, negligence,

and respondeat superior because he failed to provide any expert testimony

to support these allegations. The trial court initially examined whether the

alleged breaches of duty involved complex legal issues requiring expert

evidence. Trial Court Opinion, 6/2/2015, at 9-17. More specifically, the trial

court thoroughly examined each of the six underlying legal actions, as

alleged in the complaint, wherein Siegel & Gallagher represented Appellant.

Id. at 11-17.       The trial court highlighted the intricacies of Siegel &

Gallagher’s representation, noting that Appellant retained Siegel & Gallagher

at various stages of litigation in each of the underlying cases and often there

were other attorneys representing Appellant before and/or after them. Id.

Thus, the trial court opined that expert testimony was necessary to untangle

the   procedural    intricacies   of   the   parties’   attorney-client   relationship,

including identifying the moment when the attorney-client relationship came

into existence and when it ceased in each of the six underlying cases.

Regarding Appellant’s contention that Siegel & Gallagher failed to appear at

an arbitration hearing, the trial court noted there were “issues concerning

judgment priority, collectability, and bankruptcy” which were “not within the

purview of a lay person and expert testimony is needed to establish

causation of actual harm to [Appellant] as a result of that failure to appear.”

Id. at 13-14.      At the time of summary judgment, one of the underlying

cases was still an open matter and the trial court opined, “[a]ssuming

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J-S69041-15



arguendo, that damages are not deemed completely speculative, it would

certainly take an expert to explain the how [Siegel & Gallagher’s] actions

caused any harm to [Appellant] when [Appellant] could still succeed on the

merits.” Id. at 15. In another matter, Joseph Hemphill, Appellant’s partner,

failed to show for a deposition, a motion for sanctions was issued and

unaddressed, and the case was dismissed.          The trial court determined,

“expert testimony is required to aid a jury in determining whether the cause

of the dismissal was the refusal of Joseph Hemphill to cooperate or the

failure to file a response to the motion for sanctions.” Id. at 16.

      With regard to Appellant’s breach of contract claim, the trial court first

noted that there was “a provision in the fee agreement that any fee disputes

go to binding arbitration.”     Id. at 21.     However, the trial court also

recognized that, “[o]ddly, the breach of contract claim only related to” one

of the underlying lawsuits at issue. Id. The trial court concluded that “[t]he

record is clear that the appeal [in that matter] was dismissed because no

post-trial motions were filed by the attorney who represented MJC prior to

[Siegel & Gallagher].” Id. at 24.

      Finally, the trial court found that the UTPCPL does not apply to actions

taken by attorneys while practicing law.         The trial court determined

“[Appellant] claims that [Siegel & Gallagher] violated the UTPCPL because

they did not pursue collection efforts against two third parties.” Id. at 25.

The trial court ultimately found “[t]he UTPCPL is not applicable to an




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attorney’s conduct in collecting judgments and is not applicable to legal

malpractice arising from the practice of law.” Id.

      Upon review of the certified record and applicable law, we conclude

Appellant’s failure to obtain expert evidence to support his claims was fatal

to his causes of action. We begin with an examination of relevant law. Both

the trial court and Appellant cite our decision in Storm v. Golden, 538 A.2d

61 (Pa. Super. 1988), a case of first impression in Pennsylvania as to

whether expert testimony was necessary or required in a legal malpractice

case to establish a breach of duty.       Storm commenced an action for

professional negligence and breach of contract against her former attorney

for his representation in a real estate transaction.          In Storm, we

determined:

        As a general rule, our Supreme Court has held that expert
        testimony is necessary to establish negligent practice in any
        profession. Although such a general statement is not a
        concrete pronouncement as to any one profession, it
        exhibits a recognition that when dealing with the higher
        standards attributed to a professional in any field a
        layperson's views cannot take priority without guidance as
        to the acceptable practice in which the professional must
        operate. The standard of care in a legal malpractice case is
        whether the attorney has exercised ordinary skill and
        knowledge related to common professional practice. By its
        very nature, the specific standard of care attributed to legal
        practitioners necessitates an expert witness' explanation
        where a jury sits as the fact finder.

        We recognize that if all the primary facts can be accurately
        described to a jury and if the jury is as capable of
        comprehending and understanding such facts and drawing
        correct conclusions from them as are witnesses possessed
        of special training, experience or observation, then there is

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J-S69041-15


       no need for the testimony of an expert. Expert testimony
       becomes necessary when the subject matter of the inquiry
       is one involving special skills and training not common to
       the ordinary lay person. The requirement of expert
       testimony has been applied to physicians, dentists, and
       architects. We hold the requirement applies equally to legal
       malpractice claims under the circumstances presented here.
       We expressly limit our holding to the present circumstances
       in order to allow flexibility as to when expert evidence is
       needed. Legal malpractice claims run a wide gamut of
       circumstances from clear cut claims of a breach of an
       attorney's duty for allowing the statute of limitations to run
       against the former client's cause of action to the complex
       determination required of a claim of breach of duty
       involving the attorney's choice of trial tactics in which a
       layperson's judgment obviously requires guidance. Between
       these two extremes lie a myriad number of legal
       malpractice actions for which the necessity of expert
       evidence to establish the attorney's duty and breach thereof
       will not be readily evident without careful examination of
       the factual circumstances upon which they arise. Generally,
       the determination of whether expert evidence is required or
       not will turn on whether the issue of negligence in the
       particular case is one which is sufficiently clear so as to be
       determinable by laypersons or concluded as a matter of law,
       or whether the alleged breach of duty involves too complex
       a legal issue so as to warrant explication by expert
       evidence.

       Here, the underlying question of whether legal malpractice
       occurred revolves around a lawyer's duty and responsibility
       in connection with representing a client in a real estate
       transaction. We do not agree with appellant's assertions
       that the sale of real estate is an elementary and non-
       technical transaction which requires only simple common
       sense. At issue is not the simplicity of the transaction but
       the duty and degree of care of the attorney. Whether an
       attorney failed to exercise a reasonable degree of care and
       skill related to common professional practice in handling a
       real estate transaction is a question of fact outside the
       normal range of the ordinary experience of laypersons.

       As to [Storm’s] argument that her contract claim in
       assumpsit must be treated separately from her negligence

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J-S69041-15


            claim in trespass and that expert testimony is not necessary
            to sustain the burden in a breach of contract action, we
            [disagree]. Appellant's breach of contract count does not
            allege that appellee failed to follow specific instructions nor
            that a breach of a specific provision of the contract
            occurred. Instead,[] we find [Storm’s] assumpsit claim is
            not a true contract cause of action but sounds in negligence
            by alleging [her attorney] failed to exercise the appropriate
            standard of care. Consequently, expert testimony is needed
            for both claims.

Storm, 538 A.2d at 64-65 (record citations, legal citations, quotations, and

brackets omitted).

          Our Supreme Court provided further clarity in Merlini ex rel. Merlini

v. Gallitzin Water Authority, 980 A.2d 502 (Pa. 2009), a case decided

after the promulgation of Pa.R.C.P. 1042.33 that requires the filing of a
____________________________________________


3
    Pennsylvania Rule of Civil Procedure 1042.3 provides, in pertinent part:

    (a)     In any action based upon an allegation that a licensed
            professional deviated from an acceptable professional
            standard, the attorney for the plaintiff, or the plaintiff if not
            represented, shall file with the complaint or within sixty
            days after the filing of the complaint, a certificate of merit
            signed by the attorney or party that either

               (1)    an appropriate licensed professional has
                      supplied a written statement that there exists
                      a reasonable probability that the care, skill or
                      knowledge exercised or exhibited in the
                      treatment, practice or work that is the subject
                      of the complaint, fell outside acceptable
                      professional standards and that such conduct
                      was a cause in bringing about the harm, or

               (2)    the claim that the defendant deviated from an
                      acceptable professional standard is based
                      solely on allegations that other licensed
(Footnote Continued Next Page)


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certificate of merit in support of a professional liability claim. The Merlini

Court examined when a professional malpractice claim requires expert

testimony.     It first looked at this Court’s decision in Varner v. Classic

Communities Corporation, 890 A.2d 1068 (Pa. Super. 2006):

         Varner dealt with a professional liability claim against an
         architect who designed a townhouse, which rapidly burnt to
         the ground, killing the plaintiffs' mother. It was alleged the
         architect was under a duty to abide by the [applicable
         building codes] in the construction of the premises, but did
         not do so, especially with regard to the fire resistant
         materials provision. The Varner court originally noted
         regarding professional liability claims, and the need for a
         certificate of merit, it is the substance of the complaint
         rather than its form which controls whether the claim
         against a professionally licensed defendant sounds in
         ordinary negligence or professional negligence. Ultimately,
         Varner held the cause of action filed against the architect
         sounded in professional negligence because it dealt directly
         with professional architectural services in the construction
         of the townhouse. Additionally, the court found the claims
         against the architect involved [building code] compliance,
         which was clearly beyond the realm of common knowledge

                       _______________________
(Footnote Continued)

                       professionals for whom this defendant is
                       responsible deviated from an acceptable
                       professional standard, or
             (3)       expert testimony of an appropriate licensed
                       professional is unnecessary for prosecution of
                       the claim.

Pa.R.C.P. 1042.3 (notes omitted). Here, Appellant filed a certificate of merit
on July 24, 2012 stating that a licensed professional supplied a written
statement that Siegel & Gallagher’s practice fell outside of acceptable
professional standards pursuant to Pa.R.C.P. 1042.3(a)(1).          Appellant,
however, has changed tactics and currently argues that expert testimony is
unnecessary under Pa.R.C.P. 1042.3(a)(3).



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        and would require further explanation through expert
        testimony.

Merlini, 980 A.2d at 506-507 (citations, quotations, footnotes, and brackets

omitted).

     The Merlini Court then distinguished the facts of that case from those

in Varner:

        Merlini never alleged appellant fell below a professional
        engineering standard, or any standard affiliated with
        consulting engineers; rather, she alleged ordinary
        negligence and trespass because [the Gallitzin Water
        Authority] directed the installation of a water line on her
        property without a right-of-way, easement, or permission.
        It further alleged [those] actions, while working under
        appellant's direction, constituted trespass and negligence.
        The form and substance of Merlini's complaint alleged
        ordinary negligence. First, Merlini averred [the Gallitzin
        Water Authority] had a duty to plot out any right-of-way
        necessary for the new water line or to assure [] no
        easement or right-of-way was needed. Merlini asserted the
        right-of-way issue was brought to appellant's attention
        when it contacted Merlini to request permission to enter her
        property to locate an underground AT&T line. Appellant
        then directed or allowed [the contractors] to install the
        water line without adequate investigation and without
        obtaining a permit. Merlini claimed appellant's actions
        amounted to gross negligence and violated a duty to her,
        due to the utter disregard of her property rights. Finally,
        Merlini's complaint asserted appellant violated its duty to
        adequately review state, county, and municipal records
        relevant to her property rights and the presence of a right-
        of-way.

        The Superior Court determined Merlini's allegation sounded
        in ordinary negligence. [The Supreme Court] agree[d]. As
        the Superior Court found, appellant's actions occurred while
        it performed professional services; however, the issue
        Merlini raised was not one of professional judgment beyond
        the scope of common knowledge and experience. Merlini
        asserted a claim of basic negligent trespass - this is not a


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J-S69041-15


         breach of a duty owed by a professional, but a breach of a
         duty owed by any third party entering upon the property of
         another. As the Superior Court acknowledged, expert
         testimony may be required to clarify the property rights as
         established through state, county, and municipal records;
         however, once that factual issue is clarified, whether
         appellant trespassed will not require further expert
         elucidation[;] thus, she was not required to file a certificate
         of merit in conjunction with her complaint.

Id. at 507-508.

       Here, upon review of Appellant’s complaint, all five counts allege that

Siegel & Gallagher’s representation fell below professional standards. While

Appellant argues Siegel & Gallagher’s purported failures were within the

normal layperson experience, Appellant oversimplifies these issues. 4 As the

trial court astutely noted, the procedural morass of multiple attorneys

representing Appellant at various stages of litigation required expert

testimony.     As demonstrated by the trial court’s thorough analysis, it was

difficult to decipher who was representing Appellant when the alleged

breaches of professional duty transpired. This factual phenomenon impacts

Appellant’s ability to demonstrate liability in this case because, without
____________________________________________


4
  Appellant claims, for example, that Siegel & Gallagher admit they never
took action to reinstate an appeal, failed to respond to motions, did not
prosecute claims, and failed to appear for a scheduled arbitration hearing.
See Appellant’s Brief at 6-7. These contentions, however, actually highlight
the need for expert testimony. At issue is whether Appellant had retained
Siegel & Gallagher during the relevant periods and whether they had
corresponding professional duties. While Siegel & Gallagher may admit they
did not take action in these specific instances, it is not clear whether they
had been retained at the time. Moreover, prior counsel’s dereliction may
have foreclosed Siegel & Gallagher from obtaining relief on behalf of
Appellant. As such, expert testimony was required to explain duty.



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expert testimony, Appellant cannot establish a breach of duty or causation

on the part of Siegel & Gallagher.

      Moreover, we note that Appellant originally filed a certificate of merit

indicating that he obtained a written statement from a licensed professional

that Siegel & Gallagher’s legal representation fell below professional

standards, but then did not produce that statement during discovery. Had

Appellant determined that expert testimony was not necessary, he should

have filed a certificate of merit to that effect, but he did not. Based upon all

of the foregoing, the trial court did not err in granting summary judgment

for lack of expert testimony on claims of professional legal malpractice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2016




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