J. S15016/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


CURTIS C. PHILLIPS, JR.,        :                  IN THE SUPERIOR COURT OF
                                :                       PENNSYLVANIA
                  APPELLANT     :
             v.                 :
                                :
                                :
BRADLEY WARREN WEIDENBAUM, ESQ. :
                                :
                                :                  No. 2342 EDA 2016

                   Appeal from the Order Entered June 21, 2016
              In the Court of Common Pleas of Northampton County
                       Civil Division at No(s): 2016-01495

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                               FILED APRIL 05, 2017

     Appellant, Curtis C. Phillips, Jr., appeals pro se from the Order entered

in the Northampton County Court of Common Pleas sustaining the

Preliminary    Objections   filed   by   Bradley   Warren   Weidenbaum,   Esq.

(“Appellee”), and dismissing Appellant’s Complaint. We affirm.

     Appellee represented Appellant in an unrelated criminal matter.       On

February 23, 2016, displeased by the outcome of his criminal case,1



1
  After a trial, a jury convicted Appellant of three drug offenses, including
Possession with Intent to Deliver. 35 P.S. § 780-113(a)(30). On February
14, 2014, the trial court sentenced him to two to eight years’ incarceration.
On direct appeal, this Court concluded Appellant’s issues were meritless, but
sua sponte vacated and remanded for resentencing after finding that
Appellant had received an illegal mandatory minimum sentence under 18
Pa.C.S. § 7508. See Commonwealth v. Phillips, No. 2168 EDA 2014 (Pa.
Super. filed June 21, 2016).
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Appellant filed the instant legal malpractice action against Appellee asserting

claims of Breach of Contract, Negligence, and violation of the Unfair Trade

Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq.

Appellant also sought attorney’s fees and punitive damages.

         On March 28, 2016, Appellee’s counsel entered his appearance, and

filed a Demand for a Jury Trial and a Notice of Intention to Enter Judgment

of Non Pros pursuant to Pa.R.C.P. No. 1042.7, based upon Appellant’s failure

to file a Certificate of Merit. On April 1, 2016, Appellant filed a Certificate of

Merit.

         On April 4, 2016, Appellee filed Preliminary Objections in the nature of

demurrer to Appellant’s Complaint, seeking dismissal of the Complaint on

the grounds of (1) in pari delicto;2 (2) the legal insufficiency of the Breach of

Contract and Negligence claims; (3) the inapplicability of the UTPCPL to the

legal profession; and (4) the failure to support request for attorney’s fees.

The final Preliminary Objection was in the form of a Motion to Strike the

Complaint in its entirety for Plaintiff’s alleged failure to comply with Pa.R.C.P.

No. 1024 requiring proper verification of the Complaint.

         On April 18, 2016, Appellant filed a letter seeking an extension of time

in which to reply to the Preliminary Objections and averring that the

Prothonotary of the Northampton County Court of Common Pleas refused to


2
  This doctrine essentially provides that a plaintiff who participated in
wrongdoing may not recover damages from the wrongdoing.



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file a Praecipe for Default Judgment that he had allegedly sent along with his

Certificate of Merit on April 1, 2016.

      On June 21, 2016, the trial court sustained the majority of the

Preliminary Objections.3 With respect to Appellee’s Preliminary Objection in

the nature of a Motion to Strike the Complaint for failure to file a proper

verification, the court stated:

      As [Appellee] points out, the Complaint in the instant matter is
      wholly unverified. Indeed, it contains a Notice to Plead and a
      Certificate of Service, but it is not verified. Consequently, the
      Court must strike the Complaint in its entirety.         However,
      pursuant to Pa.R.C.P. 1028(d), the Plaintiff shall have thirty (30)
      days within which to file an amended pleading consistent with
      this Order of Court and Statement of Reasons.

Trial Court Order, 6/21/16, at 13.

      Appellant did not file an Amended Complaint. Rather, Appellant filed a

Notice of Appeal dated July 20, 2016, which the Court of Common Pleas

received on July 26, 2016, seeking review of the dismissal of the Complaint

entered by the court on June 21, 2016. Appellant stated in that Notice, that

he “hereby clearly indicates his intent to stand on the Complaint as filed.”

Notice of Appeal, dated 7/20/16.4

      Appellant and the trial court complied with Pa.R.A.P. 1925.

3
  The court overruled Appellee’s Preliminary Objection pertaining to in pari
delicto, but sustained all of the other Preliminary Objections.
4
  Upon the expiration of the 30 days in which the court permitted Appellant
to amend his Complaint, the June 21, 2016 Order became final and
appealable.




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     Appellant raises the following six issues on appeal:

        1. Did the Northampton County Court of Common Pleas
        commit reversible error when the court Prothonotary
        refused to file a timely and properly submitted Praecipe for
        Default Judgment filed by the then pro se [Appellant]?

        2. Did the Northampton County Court of Common Pleas
        commit reversible error when the court Prothonotary
        removed from the court file a properly submitted and
        briefed Responsive Preliminary Objections – and
        subsequently refused to consider any part of [Appellant’s]
        argument – filed by the pro se [Appellant] in response to
        [Appellee’s] Preliminary Objections?

        3. Did the Northampton County Court of Common Pleas
        commit reversible error when it failed to acknowledge the
        facts set forth by [Appellant] as the basis of a legally
        binding oral contract, and concluded that the lawyer-client
        relationship did not ensue when [Appellee] had made the
        oral contract referred to within [t]he Complaint, nor when
        [Appellee] had been paid a retainer fee for his services,
        but rather when an un-dated, un-signed written “fee
        agreement” – which was based upon the agreements of
        the identified oral contract – was forwarded to [Appellant]
        after [Appellee] had received payment for his services?

        4. Did the Northampton County Court of Common Pleas
        commit reversible error when it dismissed the Negligence
        claim within [t]he Complaint under Bailey v. Tucker as
        opposed to staying the prosecution pending final
        disposition of the appeal of the underlying criminal matter
        as [t]he Bailey Court indicates should be done?

        5. Did the Northampton County Court of Common Pleas
        commit reversible error when it concluded that [Appellee’s]
        fraudulent retaining practices as alleged within [t]he
        Complaint fell under the “practice of law” language within
        Byers v. Richmond, 594 Pa. 694 (2007) pursuant to
        Commonwealth v. Cole, 709 A.2d 994, 997 (Pa.
        Commw. 1999), appeal denied, 558 Pa. 611, 737 A.2d 606
        (Pa. 1999)?




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         6. Did the Northampton County Court of Common Pleas
         commit reversible error when it dismissed [t]he
         [C]omplaint for a failure to verify due to the fact that
         [Appellant] signed [t]he Complaint on page 18 thereof
         which embodied the same legal force of a formal
         verification pursuant to Pa.R.C.P. 1023.1, as well as that
         [Appellant] did in fact file an amended verification form
         with [t]he [c]ourt upon receipt of [Appellee’s] objections?

Appellant’s Brief at 2-3.5

      In Appellant’s first issue, he claims that the trial court Prothonotary

improperly refused to accept and docket Appellant’s Praecipe for Entry of

Default Judgment on count 1 (breach of contract), which he purports to have

sent along with a Certificate of Merit, on March 29, 2016.         Id. at 4.

Appellant claims that the Prothonotary denies having received the Praecipe

and supporting documentation; but notes that the Prothonotary did file the

Certificate of Merit, which was part of the same paperwork. Id. Appellant

argues that, because he properly sent the Prothonotary the Praecipe for

Entry of Default Judgment, there was no reason for the court not to enter

Judgment in his favor. Id. at 5.

      The June 21, 2016 Order, which is the subject of this appeal, did not

address the issue Appellant purports to challenge in his first claim.    The


5
  Appellant has also included in the argument portion of his Brief a three-
paragraph section titled “Remainder of the Order.” Because Appellant did
not raise these issues in his Statement of Questions Involved, these issues
are waived. See Pa.R.A.P. 2116(a); see also Thomas v. Elash, 781 A.2d
170, 176-77 (Pa. Super. 2001) (reiterating that “an appellant must present
all issues on appeal in the Statement of Questions Involved section of his
brief.”).



                                    -5-
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appealed order merely sustained in part and denied in part Appellee’s

Preliminary Objections. As the trial court noted, “this issue is addressed to

actions or omissions alleged of the Prothonotary, and it is beyond the scope

of the June 21, 2016 Order of Court that is the subject of this appeal.” Trial

Ct. Op. at 2.

      We further note that, pursuant to Pa.R.A.P. 2115(b), Appellant was

required to include a statement in his Brief immediately following the

Statement of Jurisdiction detailing the alleged failure of the Prothonotary to

act and a brief citation of the statute under which it is claimed such action is

required. Appellant did not do so. Instead, he simply indicates he is seeking

review of the dismissal of the Complaint following the grant of Appellee’s

Preliminary Objections. See Appellant’s Brief at 1.

      Finally, even assuming arguendo that Appellant had attempted to file a

Praecipe of Default Judgment based on Appellee’s failure to respond timely

to the Complaint, such Praecipe would have been rejected by the

Prothonotary.   Pursuant to our rules of civil procedure, in a professional

liability action, a defendant is allowed twenty days after service of the

Certificate of Merit to file a responsive pleading.     Pa.R.C.P. No. 1042.4.

Since Appellant alleges that he sent the Praecipe at the same time as the

Certificate of Merit, filing the Praecipe for Default Judgment would have been

premature. Appellant’s first issue has no merit.




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      Appellant next avers that the trial court Prothonotary erred in

removing     his   “Responsive   Preliminary   Objections”   from   the   docket.

Appellant’s Brief at 5.6      He also claims that trial court erred in not

considering his “Responsive       Preliminary Objections”    before ruling on

Appellee’s Preliminary Objections, even though Appellant forwarded a copy

of them to the trial court judge assigned to rule on the Preliminary

Objections. Id.

      As the trial court observed, this issue is beyond the scope of the June

21, 2016 Order from which this appeal is taken. See Trial Ct. Op. at 2.

Moreover, Appellant again failed to include a statement pertaining to the

Prothonotary’s challenged action immediately after the Statement of

Jurisdiction, as required by Pa.R.A.P. 2115(b). Moreover, he has not cited to

any authority to support of his claim of alleged error. Therefore, we find this

issue waived.      See Pa.R.A.P. 2119(a); In re Estate of Whitley, 50 A.3d

203, 210-11 (Pa. Super. 2012) (holding that the ”[f]ailure to cite relevant

legal authority constitutes waiver of the claim on appeal.” (citation

omitted)).




6
  Annexed to Appellant’s Brief as Exhibit “B” is a copy of a document entitled
“Plaintiff’s Preliminary Objections to Defendant’s Preliminary Objections” with
a court of common pleas file stamp dated May 19, 2016, with a giant X and
scribbles drawn over it.



                                      -7-
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      Appellant’s final four issues challenge the trial court’s Order sustaining

Appellee’s Preliminary Objections and dismissing Appellant’s Complaint. We

are guided by the following standard:

         Our standard of review of an order of the trial court
         overruling or granting preliminary objections is to
         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 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.

Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012), quoting

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

      In his third issue, Appellant claims the trial court erred in concluding

that he had failed to plead sufficiently a Breach of Contract legal malpractice

claim.   Although Appellant concedes that the parties had not incorporated

certain oral terms into the written contract they ultimately executed, he

nonetheless claims that Appellee was legally bound to perform the tasks he

had orally agreed to perform and the failure to do so constituted a breach of

contract. Appellant’s Brief at 6-8.



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      A legal malpractice claim may be brought by an aggrieved client in an

action sounding in tort and/or breach of contract. Wachovia Bank, N.A. v.

Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007).

         The elements of a legal malpractice action, sounding in
         negligence,[7] include: (1) employment of the attorney or
         other basis for a duty; (2) failure of the attorney to
         exercise ordinary skill and knowledge; and (3) that such
         failure was the proximate cause of the harm to the
         plaintiff. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108,
         112 (1993). With regard to a breach of contract claim, “an
         attorney who agrees for a fee to represent a client is by
         implication agreeing to provide that client with professional
         services consistent with those expected of the profession
         at large.” Id. at 115.

Id. at 570-71. See also CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053,

1058 (Pa. Super. 1999) (“A cause of action for breach of contract must be

established by pleading (1) the existence of a contract, including its essential

terms, (2) a breach of a duty imposed by the contract and (3) resultant

damages.”). Therefore, where, as here, a complaint asserts a legal

malpractice claim sounding in both tort and contract, the plaintiff/former

client is required to prove that the attorney breached a duty owed to him,

and that the breach caused him to suffer damages.

      Generally, if parties to an oral contract agree on the essential terms of

the contract and intend to be bound by them, they have formed a valid legal

contract, even if they intend also to incorporate these terms, and possibly

7
   Traditionally, our courts have treated claims of professional negligence
alleging criminal defense malpractice as trespass actions. See Bailey v.
Tucker, 621 A.2d 108, 112 (Pa. 1993).



                                     -9-
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others, in a written contract at a later date.              Krause v. Great Lakes

Holdings, Inc., 563 A.2d 1182, 1186 (Pa. Super. 1989). However, if the

parties contemplate that their agreement is not final until it is reduced to

writing, they have not formed a valid legal contract until so doing. Id.

      In the Complaint, Appellant alleged that, when the parties met to

discuss the possibility of a lawyer-client relationship, Appellant set forth a

number of tasks Appellant expected Appellee to perform, and Appellee

agreed to such performance.        See Complaint, 2/23/16, at ¶¶ 5, 6, 8-10.

However, Appellant also asserted in the Complaint that the lawyer-client

relationship did not begin until the execution of a “written retainment [sic]

fee agreement and contract with [Appellee] for these services [that]

commenced on May 18, 2013.”               Id. at ¶ 11.        Appellant’s Complaint

specifically claims that, though “[t]hese claims arise out of specific oral

agreements made between [Appellant] and [Appellee,]” they were solidified

through[] entry into a legally binding contract.” Id. at ¶ 4.

      Our review of the written contract appended to Appellant’s Complaint

reveals   that   the   contract   does    not     include   any   specific   tasks   for

performance; rather, it provides that “[Appellee’s] firm agrees to exert its

best efforts to obtain the best possible results in [Appellant’s] case.” Letter,

May 20, 2013. Appellant has not pleaded any facts that demonstrate that

Appellee did not exert his “best efforts to obtain the best possible results” in

Appellant’s criminal case, or any facts upon which the trial court could



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conclude that Appellee failed to provide legal services consistent with the

relevant standard of care.

      It is clear from the Complaint that Appellant pleaded that his Breach of

Contract claim arose from the written agreement between the parties, and

not from the terms to which he and Appellee allegedly orally agreed. It is

also clear that, in failing to plead with specificity the standard of care, or

how the services provided by Appellee fell below the standard of care,

Appellant failed to plead facts legally sufficient to establish his right to relief.

Accordingly, the trial court did not err in sustaining Appellee’s Preliminary

Objection as to Appellant’s Breach of Contract claim.8

      In his fourth issue, Appellant challenges the trial court’s reliance on

Bailey, supra, in dismissing his Negligence claim. He claims that the trial

court erroneously interpreted Bailey to require, inter alia, that he plead in

his Complaint that he has “pursued post-trial remedies and obtained relief

which was dependent upon attorney error.”           Appellant’s Brief at 9, citing

Bailey, 621 A.2d at 115. Appellant argues that Bailey only requires that he

be able to establish this fact at some point prior to a final disposition in his


8
  Alternatively, Appellant argues that the trial court erred in finding the
written fee agreement between the parties to be a legally enforceable
contract because its terms were too ambiguous to be enforceable.
Appellant’s Brief at 7. Appellant also avers that the written fee agreement is
not enforceable because the parties did not sign it. Id. at 7-8. These
claims, if true, would render his Breach of Contract action void ab initio.
Accordingly, we do not consider them to be valid alternate arguments
requiring our review.



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legal malpractice case.     Id.   Appellant argues that the court should have

stayed his claim pending final disposition of his criminal matter. Our review

indicates, however, that Appellant has misapprehended the totality of the

basis for the trial court’s ruling.

      In Bailey, our Supreme Court articulated the following required

elements for a trespass-negligence based legal malpractice claim stemming

from representation in a criminal matter.

         … [T]oday we hold that a plaintiff seeking to bring a
         trespass action against a criminal defense attorney,
         resulting from his or her representation of the plaintiff in
         criminal proceedings, must establish the following
         elements:

             (1) The employment of the attorney;

             (2) Reckless or wanton disregard of the defendant’s
             interest on the part of the attorney;

             (3) the attorney’s culpable conduct was the
             proximate cause of an injury suffered by the
             defendant/plaintiff, i.e., “but for” the attorney’s
             conduct, the defendant/plaintiff would have obtained
             an aquittal [sic] or a complete dismissal of the
             charges.

             (4) As a result of the injury,           the   criminal
             defendant/plaintiff suffered damages.

             (5) Moreover, a plaintiff will not prevail in an action
             in criminal malpractice unless and until he has
             pursued post-trial remedies and obtained relief which
             was dependent upon attorney error; additionally,
             although such finding may be introduced into
             evidence in the subsequent action it shall not be
             dispositive of the establishment of culpable conduct
             in the malpractice action.



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Id. at 114-15 (footnotes omitted).

      The Bailey Court further explained that if an attorney defendant is

served with a Complaint alleging professional malpractice in a criminal

matter, the defendant may file a Preliminary Objection in the nature of a

demurrer.     The Court instructed that the “trial court shall then reserve its

ruling on said objection until the resolution of the post-conviction criminal

proceedings.” Id. at 115 n.13.

      The trial court explained its application of Bailey to the instant facts

as follows:

         In this case, while Defendant/Appellee based his demurrer
         in part on the fact that the Plaintiff/Appellant’s appeal was
         still pending, he also argued Plaintiff/Appellant’s failure to
         plead the second and third elements of his claim,
         specifically that Defendant/Appellee acted in “reckless or
         wanton disregard” for Plaintiff/Appellant’s interests and
         that, but for such culpable conduct, Plaintiff/Appellant
         would have been acquitted or his charges dismissed. In
         sustaining the demurrer, the [c]ourt reviewed the claim
         and found it legally insufficient to withstand demurrer.
         Although not expressly stated in the [c]ourt’s [prior]
         opinion, this finding was premised not only on the
         pendency of Plaintiff/Appellant’s appeal of his criminal
         matter, but also on his failure to plead the second and
         third elements of his claim.

Trial Ct. Op. at 3-4.

      Our review of Appellant’s Complaint confirms the trial court’s finding

that Appellant failed to plead the second and third Bailey factors, and this

failure was fatal to Appellant’s claim. This issue, therefore, lacks merit.




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      In his fifth issue, Appellant challenges the trial court’s determination

that the allegations in the Complaint fell within the definition of “practice of

law,” which therefore barred Appellant from raising a claim under the

UTPCPL.    Appellant’s Brief at 10.     Appellant argues that he alleged that

Appellee engaged in “fraudulent and deceptive retaining practices,” which

claim is cognizable under the UTPCPL. Id. Appellant avers that, since he

properly raised a claim under the UTPCPL, the court erred in dismissing this

count of his Complaint. Id.

      The UTPCPL creates a private right of action for “[a]ny person who

purchases or leases goods or services primarily for personal, family[,] or

household purposes and thereby suffers any ascertainable loss of money or

property, real or personal, as a result of the use or employment by any

person of a method, act[,] or practice declared unlawful by section 3 [] of

[the] act . . ..” 73 P.S. § 201-9.2(a). In 2007, however, the Pennsylvania

Supreme Court found the UTPCPL inapplicable to the legal profession.

Beyers v. Richmond, 937 A.2d 1082 (Pa. 2007).

      Notwithstanding   the   holding    in    Beyers,   without   citing   to   any

controlling authority, Appellant argues that claims that an attorney engaged

in fraudulent and deceptive retaining practices are permissible under the

UTPCPL. Because Appellant has not supported this argument with citation to

controlling authority, we find this claim waived.        See Pa.R.A.P. 2119(a).

Moreover, even if it were not waived, this Court is bound by the precedential



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decision of the Pennsylvania Supreme Court in Beyers, and, thus,

Appellant’s claim would fail.

      In his final issue, Appellant claims that the court erred in dismissing

his Complaint pursuant to Pa.R.C.P. No. 10249 because he filed a “matter of

course amendment to the Complaint[,]” which was properly verified.

Appellant’s Brief at 11. Appellant has, again, failed to support this argument

with citation to any authority. Accordingly, it is also waived.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/5/2017




9
  Rule 1024 provides that: “every pleading containing an averment of fact
not appearing of record in the action or containing a denial of fact shall state
that the averment or denial is true upon the signer’s personal knowledge or
information and belief and shall be verified. The signer need not aver the
source of the information of expectation or ability to prove the averment or
denial at the trial. A pleading may be verified upon personal knowledge as
to a part and upon information and belief as to the remainder.” Pa.R.C.P.
No. 1024(a).



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