J-A21005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEVERLY E. BROWN,                               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

CATHY S. BOYER, ESQUIRE AND BOYER,
PAULISICK & EBERLE,

                         Appellees                   No. 206 WDA 2017


                   Appeal from the Order January 12, 2017
               In the Court of Common Pleas of Butler County
                     Civil Division at No(s): 2014-10798


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

DISSENTING MEMORANDUM BY BENDER, P.J.E.:             FILED MAY 18, 2018

      I respectfully dissent. I would affirm the trial court’s order sustaining

the preliminary objections filed by Cathy S. Boyer, Esq., and Boyer, Paulisick

& Eberle (collectively “Law Firm”) and dismissing Beverly E. Brown’s (“Ms.

Brown”) second amended complaint with prejudice.

      As noted by the trial court, Ms. Brown’s legal malpractice complaint

sets forth causes of action for negligence and breach of contract. Law Firm’s

response via their preliminary objections asserts that the complaint fails to

state a claim upon which relief may be granted due to a lack of recoverable

damages, proof of which is a required element for success on either cause of

action. In relation to the damages issue, the trial court explains:

           In this case, the damages sought by [Ms. Brown] are
      speculative at best. The amount [Ms. Brown] claims in damages
      in her Second Amended Complaint is that which she would
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     receive under her ex-husband’s Pension, in the event said
     Pension was available to her. However, as previously stated,
     [Ms. Brown’s] ex-husband’s Pension would not have been
     available to her with or without Attorney Boyer’s advice. That is,
     no action or inaction of [Ms. Brown’s] counsel would have
     resulted in [Ms. Brown’s] ability to receive her ex-husband’s
     Pension in any form.        Therefore, it is a remedy that is
     unavailable as a matter of law rather than as a result of any
     wrongdoing by counsel.

            Further, even if armed with the knowledge that her ex-
     husband’s Pension Plan did not provide her with a separate
     annuity [and] [Ms. Brown] would have negotiated differently, no
     change in negotiation tactic would have provided her with a
     separate annuity. In fact, [Ms. Brown] did have the opportunity
     to continue negotiations well after the acknowledgement of the
     mistake on January 24, 2012, and thus a new May 7, 2015,
     “Domestic Relations Order” was entered. See Butler County
     Family Court Docket No. 2010-90027-D. While this may not
     reflect everything [Ms. Brown] desired to receive in the divorce
     proceedings, it does represent to this [c]ourt that some measure
     of correction was undertaken. Notwithstanding, even if no such
     order existed, there is no way to know exactly what [Ms. Brown]
     would or would not have foregone, or received in further
     negotiations with her ex-husband prior to the January 24, 2012,
     QDRO, so that any claim to the contrary would be wholly
     speculative.

            It is for the same reasons enumerated above that [Ms.
     Brown] cannot prove that her claim in the underlying divorce
     action was a viable one with respect to the Slippery Rock
     Borough Pension Plan. Stated differently, [Ms. Brown] has no
     ability to prove her “case within a case,” if only because what
     she seeks as damages are not available as a matter of law.

Trial Court Memorandum Opinion (TCMO), 1/12/17, at 4-5. Essentially, the

trial court concluded that “the damages claimed as a result of the [Law

Firm’s] alleged wrongdoings are either speculative at best, or totally

unavailable to [Ms. Brown] as a matter of law, at worst.” Id. at 6.




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      I also note that Ms. Brown failed to acknowledge that after the parties

were notified on January 24, 2012, that the QDRO could not be accepted as

a qualified plan, further negotiations were undertaken and a domestic

relations order was entered on May 7, 2015, that specifically related to the

pension plan. That order is not contained in the record of this case. Rather,

it appears that it is listed in the Butler County Family Court Docket relating

to the underlying case. Thus, this Court does not have access to that order

or its contents.   The trial court here recognized that although the May 7,

2015 order did not necessarily “reflect everything [Ms. Brown] desired to

receive in the divorce proceedings, it does represent … that some measure

of correction was undertaken.”      Id.   Essentially, the trial court concluded

that despite the May 7, 2015 order, “there is no way to know exactly what

[Ms. Brown] would or would not have foregone, or received in further

negotiations with her ex-husband prior to the January 24, 2012[] QDRO, so

that any claim to the contrary would be wholly speculative.” Id.

      I agree and would conclude that the trial court did not err.

Accordingly, I would affirm the trial court’s order that sustained Law Firm’s

preliminary   objections    and   dismissed   Ms.   Brown’s   second   amended

complaint with prejudice.




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