J-S41029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD KAPUSCINSKI AND TG COOPER                  IN THE SUPERIOR COURT OF
& CO. INC.,                                             PENNSYLVANIA

                            Appellant

                       v.

ROBERT M. CAVALIER, ESQUIRE, LUCAS
AND CAVALIER, LLC, ARNOLD DRANOFF,
ESQUIRE AND DRANOFF & PATRIZIO,
P.C.,

                            Appellees                  No. 1098 EDA 2015


                 Appeal from the Order Entered March 11, 2015
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): October Term, 2014 No. 2074


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JULY 14, 2016

        In this action for legal malpractice, Edward Kapuscinski and TG Cooper

& Co., Inc. appeal from the order entered March 11, 2015, which granted

the preliminary objections in the nature of a demurrer filed by Robert M.

Cavalier, Esq. and Lucas and Cavalier, LLC, as well as Arnold Dranoff, Esq.,

and Dranoff & Patrizio P.C. (collectively, the Attorneys). We affirm.

        We adopt the following statement of facts and procedural background:

        This action arises out of the settlement of four underlying actions
        involving the sale of a property to George Graeber. [Appellant
        Cooper] owned the property.              [Appellant] Kapuscinsky
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*
    Former Justice specially assigned to the Superior Court.
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     assert[ed] he was the sole shareholder of [Cooper].    [The
     Attorneys] represented [Appellants] during a portion of the
     underlying actions.

     In 2002, [Appellants] entered into a five-year lease agreement
     with Graeber. The agreement allowed Graeber to purchase the
     property at the end of the lease at fair market value. At the end
     of the lease, Graeber wanted to purchase the property, but the
     parties could not agree upon a sales price.

     …

     On August 23, 2007, Graeber initiated an action to compel the
     sale of the property under the terms of the agreement.

     On November 1, 2007, [Appellants] initiated an action against
     Graeber alleging that the lease agreement was breached. In
     December 2007, this action was consolidated with the suit filed
     by Graeber. The docket reflects that [Appellee Cavalier] entered
     his appearance on behalf of [Appellants] in the underlying
     actions on January 30, 2008. In August 2008 [c]ross-motions
     for summary judgment were filed. On September 22, 2008,
     both motions for summary judgment were denied. On March 24,
     2009, the consolidated matters were scheduled for a two[-
     ]day[,] non-jury trial. On April 15, 2009, the [trial] court
     ordered [Appellants] to sell the property to Graeber.
     [Appellants] appealed the trial court’s order. On January 12,
     2010, the Superior Court granted a stay of the trial court’s order.
     On March 18, 2011, the Superior Court vacated the trial court’s
     order, dismissed the Graeber action because [Cooper] was not a
     party, and remanded the action for consideration of the claim by
     [Kapuscinski]. [See Graeber v. Kapuscinski, 26 A.3d 1197
     (Pa. Super. 2011) (unpublished memorandum).]

     On June 10, 2011, Graeber initiated a second action. The
     allegations in the second action were identical to those in the
     initial matter, but added [Cooper] as a defendant.

     On October 13, 2011, [Appellants] commenced a second action
     against Graeber.     The second action was based upon [an
     alleged] breach of contract.

     On November 17, 2011, Graeber filed a motion to consolidate all
     four cases. On December 8, 2011, [Appellees Cavalier and

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      Lucas and Cavalier, LLC], on behalf of [Appellants], filed an
      answer in opposition to the motion to consolidate. In December
      2011, all four actions were consolidated under a single docket
      number …. On March 12, 2012, [Appellee Dranoff] entered his
      appearance on behalf of [Appellants].

      On October 15, 2012, the parties informed the [trial] court that
      the consolidated actions were settled by agreement prior to trial.
      On December 5, 2012, Graeber filed a motion to enforce
      settlement, which was granted. On January 7, 2013, Graeber
      filed a [p]etition for [c]ontempt. On January 30, 2013, after a
      hearing, the court entered a conditional order on the motion for
      contempt. On February 8, 2013, the court then scheduled a
      subsequent “further hearing” on the [p]etition for [c]ontempt.

      On March 19, 2013, a hearing was held before the Honorable
      Patricia McInerney and the court issued an order dismissing the
      [p]etition for [c]ontempt as moot. At the hearing[,] Kapuscinksi
      acknowledged he understood a settlement was reached with
      respect to the sale of the property. Kapuscinski acknowledged
      he agreed to the sale of the property.

Trial Court Opinion, 12/10/2015, at 1-4 (citations to record omitted; some

punctuation modified).

      In October 2014, Appellants commenced this action.           Thereafter,

Appellants filed an amended complaint and, in January 2015, a second

amended complaint asserting that the Attorneys failed to consult with them

and, further, failed to obtain their consent with respect to the settlement in

the underlying property dispute.

      In January 2015, the Attorneys filed preliminary objections in the

nature of a demurrer.       In relevant part, the Attorneys objected that

Appellants could not state a claim for legal malpractice based upon their

dissatisfaction with the terms of a settlement absent proof of fraud, citing in


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support Muhammad v. Strassburger, McKenna, Messer, Shilobad and

Gutnick, 587 A.2d 1346 (Pa. 1991). See Cavalier’s Preliminary Objections,

01/08/2015, at ¶ 58; Dranoff’s Preliminary Objections, 01/22/2015, at ¶ 58.

The trial court granted the Attorneys’ preliminary objections and dismissed

Appellants’ second amended complaint with prejudice.

     Appellants timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

     In this appeal, Appellants contend that the trial court erred in

sustaining the Attorneys’ preliminary objections and dismissing their

complaint with prejudice.      According to Appellants, (1) their second

amended complaint was sufficiently specific; (2) the Attorneys’ failure to

disclose the agreed upon terms of settlement was tantamount to fraud; (3)

the Attorneys were negligent for failing to secure Appellants’ consent to

settle; and (4) the settlement court coerced Appellants into agreeing to

settle the underlying property dispute. See Appellants’ Brief at 3-4; 7-10.

     Our standard of review is settled.

     [We must] determine whether the trial court committed an error
     of law. When considering the appropriateness of a ruling on
     preliminary objections, the appellate court must apply the same
     standard as the trial court.

     Preliminary objections in the nature of a demurrer test the legal
     sufficiency of the complaint.       When considering preliminary
     objections, all material facts set forth in the challenged pleadings
     are admitted as true, as well as all inferences reasonably
     deducible therefrom.      Preliminary objections which seek the
     dismissal of a cause of action should be sustained only in cases
     in which it is clear and free from doubt that the pleader will be

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      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

Majorsky v. Douglas, 58 A.3d 1250, 1268-69 (Pa. Super. 2013) (quoting

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011)).

      In order to state a claim for legal malpractice, a plaintiff must

demonstrate (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.

See Kituskie v. Corbman, 714 A.2d 1027, 1029 (Pa. 1998).               However,

where a plaintiff alleges legal malpractice following a settlement agreement,

public policy dictates that the plaintiff further allege fraud in the inducement:

      Simply stated, we will not permit a suit to be filed by a
      dissatisfied plaintiff against his attorney following a settlement to
      which that plaintiff agreed, unless that plaintiff can show he was
      fraudulently induced to settle the original action. An action
      should not lie against an attorney for malpractice based on
      negligence and/or contract principles when that client has
      agreed to a settlement. Rather, only cases of fraud should be
      actionable.

Muhammad, 587 A.2d at 1348.

      We need not address Appellants’ arguments in detail.                    Here,

Appellants’ second amended complaint contains no allegation of fraud.

Accordingly, Appellants’ claim for legal malpractice is not actionable. Id.

      Appellants suggest that the trial court should have inferred allegations

of fraud based upon their averments that the Attorneys never informed them


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of the terms of settlement and that Appellant Kapuscinski did not agree to

those terms. This argument is without merit. Fraud must be averred with

particularity.   Pa.R.C.P. 1019(b).        Here, Appellants failed to do so.   See,

e.g., Ellison v. Lopez, 959 A.2d 395, 398 (Pa. Super. 2008) (setting forth

the elements of fraud).             Moreover, Appellants’ suggestion that the

underlying property dispute was settled without Appellant Kapuscinski’s

consent is belied by his clear admission to the contrary:

       THE COURT: Okay, Mr. Kapuscinski is present here in the
       courtroom and Mr. Graeber is present here in the courtroom.
       And you both – I should probably ask you individually. Mr.
       Kapuscinski, do you agree with this?

       MR. KAPUSCINSKI: Yes, ma’am.

Notes of Testimony (N.T.), 03/19/2013, at 93.1

       Appellants also suggest that they were coerced by the settlement

court into accepting a settlement. See Appellant’s Brief at 10. Initially, we

observe that Appellant’s second amended complaint contains no allegation of

coercion. See Second Amended Complaint. In addition, whether the trial
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1
  Generally, when considering preliminary objections in the nature of a
demurrer, a trial court “may not take judicial notice in one case of the
records of another case.” 220 P’ship v. Phila. Elec. Co., 650 A.2d 1094,
1096 (Pa. Super. 1994). An exception has been recognized, however, for
this Court has held that “[i]t is appropriate for a court to take notice of a fact
which the parties have admitted or which is incorporated into the complaint
by reference to a prior court action.” Id. (citing Gulentz v. Schanno
Transp., Inc., 513 A.2d 440, 443 (Pa. Super. 1986). Here, Appellants’
second amended complaint incorporated the recorded settlement of the
underlying property dispute. See Second Amended Complaint, 01/06/2015,
at ¶ 46, 66.



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court coerced a settlement is irrelevant to whether the Attorneys breached

their duty to exercise ordinary skill and knowledge.   For these reasons,

Appellants’ argument is devoid of merit.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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