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                                   2015 PA Super 62



PHILLIP J. SILVAGNI                               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JEFFREY S. SHORR, ESQUIRE, JOHN A.
LORD, ESQUIRE, DASHEVSKY,
HORWITZ, KUHN & NOVELLO, P.C.,
SALTZ, MONGELUZZI, BARRETT &
BENDESKY, P.C.

                            Appellees                 No. 2566 EDA 2013


                      Appeal from the Order August 6, 2013
              In the Court of Common Pleas of Philadelphia County
                          Civil Division at No(s): 1386


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

OPINION BY LAZARUS, J.:                               FILED MARCH 27, 2015

       Phillip J. Silvagni appeals from the order entered in the Court of

Common Pleas of Philadelphia County granting summary judgment in favor

of Jeffrey S. Shorr, Esquire, and the law firm of Dashevsky, Horwitz, Kuhn &

Novello, P.C. (hereinafter “Defendants”). We affirm.

       On October 27, 2011, Silvagni filed a complaint against Defendants

alleging legal malpractice in the handling of his workers’ compensation

claim.1   In the legal malpractice action, Silvagni claimed Defendants gave
____________________________________________


1
 While in the employ of Jersey Shore Steel Company, Silvagni was injured
when an overhead crane fell on him. He retained Defendants to represent
(Footnote Continued Next Page)
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him incorrect legal advice that ultimately led to a compromise and release.

Silvagni claims that but for that incorrect legal advice, he would not have

agreed to the terms of the settlement.

      Defendants filed preliminary objections, which the trial court denied.

On February 29, 2012, Silvagni filed a second amended complaint.       On May

17, 2013, the parties entered into a stipulation to dismiss Counts I and III of

the complaint (Professional Negligence/Malpractice and Breach of Fiduciary

Duty).    On June 6, 2013 the trial court approved the stipulation, and

Silvagni’s complaint continued with the remaining Count II (Breach of

Contract/Covenant of Good Faith and Fair Dealing).        On May 31, 2013,

Defendants filed a motion for summary judgment, which the Honorable John

M. Younge granted. Thereafter, Silvagni filed this appeal, raising two issues:

      1. Did the trial court commit an error of law in its grant of
         summary judgment in its application of the Muhammad2
         doctrine’s general prohibition against “settling and suing”
         when the necessary diminished underlying settlement was
         procured by underlying Defendants’ legal and not judgment
         errors and otherwise, likewise not “voluntarily” entered?


                       _______________________
(Footnote Continued)

him both in the Workers’ Compensation action and in a separate third-party
action against the crane manufacturer and other companies. The third-party
action was referred to the law firm of Saltz, Mongeluzzi, Barrett & Bendesky,
P.C. (“the Saltz Firm”). That action was settled on March 29, 2009, a few
months after Silvagni signed the Compromise and Release in the Workers’
Compensation action.
2
   Muhammad v. Strassburger, McKenna, Messer, Shilobod and
Gutnick, 587 A.2d 1346 (Pa. 1991).



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      2. Did the trial court commit an error of law in its grant of
         summary judgment per the Muhammad doctrine when that
         doctrine had previously been adjudicated upon preliminary
         objections as inapplicable and no material facts had changed
         in the interim?

      Because Silvagni’s claims are barred under the doctrine espoused in

Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick,

587 A.2d 1346 (Pa. 1991), we agree with Judge Younge’s order granting

summary judgment in Defendants’ favor.

             Our standard of review of an order granting summary
      judgment requires us to determine whether the trial court
      abused its discretion or committed an error of law[,] and our
      scope of review is plenary. 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. Only where there is no genuine issue
      as to any material fact and it is clear that the moving party is
      entitled to a judgment as a matter of law will summary
      judgment be entered.

                                ***

      Where the non-moving party bears the burden of proof on an
      issue, he may not merely rely on his pleadings or answers in
      order to survive summary judgment. Further, failure of a
      nonmoving party to adduce sufficient evidence on an issue
      essential to his case and on which he bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law.

Sokolsky v. Eidelman, 93 A.3d 858, 861–62 (Pa. Super. 2014) (quotation

marks and citations omitted).

      In Muhammad, plaintiffs filed a legal malpractice action against

defendant law firm as a result of defendant’s representation of plaintiffs in a



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medical   malpractice     lawsuit    following   the   death   of   plaintiffs'   child.

Defendant law firm negotiated a settlement of the medical malpractice case.

Plaintiffs verbally accepted the settlement offer.             Thereafter, plaintiffs

changed their minds about the settlement before signing a written accord.

Defendant law firm filed a Rule to Show Cause why the settlement

agreement should not be enforced.          After an evidentiary hearing, the trial

court enforced the agreement.          The court ordered the defendants in the

medical malpractice case to pay the settlement funds and instructed the

prothonotary to mark the case settled.             Plaintiffs hired new counsel,

appealed the order, and this Court affirmed.           Muhammad v. Childrens

Hospital of Pittsburgh, 487 A.2d 443 (Pa. Super. 1984) (unpublished

memorandum opinion).

       Thereafter, plaintiffs filed a legal malpractice case against the law firm

that   had   negotiated    the      medical-malpractice   settlement.      The    legal

malpractice case was dismissed, and our Supreme Court affirmed that

dismissal, stating:

       This case must be resolved in light of our longstanding public
       policy which encourages settlements. 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.




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Muhammad, 587 A.2d at 1348 (emphasis added).               The Court further

stated:

      [W]e foreclose the ability of dissatisfied litigants to agree to a
      settlement and then file suit against their attorneys in the hope
      that they will recover additional monies. To permit otherwise
      results in unfairness to the attorneys who relied on their client's
      assent and unfairness to the litigants whose cases have not yet
      been tried. Additionally, it places an unnecessarily arduous
      burden on an overly taxed court system. We do believe,
      however, there must be redress for the plaintiff who has been
      fraudulently induced into agreeing to settle. It is not enough that
      the lawyer who negotiated the original settlement may have
      been negligent; rather, the party seeking to pursue a case
      against his lawyer after a settlement must plead, with specificity,
      fraud in the inducement.

Id. at 1351.

      Silvagni claims that the trial court improperly applied the Muhammad

doctrine because he did not enter into the settlement voluntarily. Silvagni’s

claim is not supported in the record.

      Silvagni executed a Compromise and Release Agreement on December

16, 2008, which included the following certification:          “I have been

represented by an attorney of my own choosing during this case.             My

attorney has explained to me the content of this agreement and the effects

upon my rights.”   See Compromise and Release Agreement by Stipulation

Pursuant to Section 449 of the Workers’ Compensation Act, 12/16/08, ¶ 4.

      Further, prior to approving the settlement, Judge Karl Baldys presided

over a colloquy conducted by Silvagni’s attorney, Jeffrey S. Shorr, Esq.:

      Q: Mr. Silvagni, you were employed by Jersey Shore Steel as of
      September 30, 2005, is that correct?

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     A: Yes.

     Q: And on that date you suffered multiple injuries as a result of
     a crane collapse, is that correct?

     A: Yes.

     Q: And you received medical treatment for the injuries that you
     had, including fractures and injuries to you neck and back, is
     that correct?

     A: Yes.

     Q: And you continue to receive treatment for those problems, is
     that correct?

     A: Yes.

     Q: Now since the work injury you had received $358.00 a week
     in worker’s compensation benefits, is that correct?

     A: Yes.

     Q: And you have before you the Compromise and Release
     Agreement, which is the settlement agreement, is that correct?

     A: Yes, I do.

     Q: Now I’m going to ask you to go to the “Employee’s
     Certification” page. Is that your signature above the “Employee’
     Signature” line?

     A: Yes, it is.

     Q: And is that your initials in the first part of Paragraph No.4?

     A: Yes, it is.

     Q: Before today’s hearing did you have an opportunity to read
     this document?

     A: Yes, I have.

     Q: Did I explain each provision of the agreement to you?

     A: Yes, you did.

     Q: Do you understand each provision of the agreement?

     A: Yes.


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     Q: Do you understand that if Judge Baldys approves this
     agreement you will receive a lump sum of $60,000.00, from
     which a 20 percent attorney’s fee will be deducted and paid
     directly to the firm that I work for, do you understand that?

     A: Yes.



     Q: And do you understand that you will receive the sum of
     $48,000.00?

     A: Yes.

     Q: Do you understand that in return for that you will not
     be entitled to any additional wage benefits, medical
     benefits, specific loss benefits, or any other benefits
     under the Workers’ Compensation Act for your work
     injury of September 30, 2005?

     A: Yes.

     Q: Do you understand that if your condition worsens and you
     cannot work, or you need additional medical treatment, that the
     insurance company or Jersey Shore Steel Company will not be
     responsible to pay for that wage loss or medical treatment?

     A: Yes.

     Q: Do you understand that it will be your own personal
     responsibility to pay for any additional medical treatment after
     today?

     A: Yes.

     Q: Do you understand that if you didn’t want to settle this case
     you would have the right to have Judge Baldys decide the case,
     in which case if he found in your favor you would continue to
     receive your weekly wage benefits as well as your medical
     expenses paid for from the insurance company and the
     Employer?

     A: Yes.

     Q: Do you understand that if you didn’t resolve this matter
     Judge Baldys could decide the case, and if he decided against
     you, you would continue to have your medical expenses paid



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     until some Judge terminates those benefits, do you understand
     that?

     A: Yes.



     Q: By entering into this agreement you’re giving up your right to
     have Judge Baldys decide the case, do you understand that?

     A: Yes.

     Q: Are you currently under the influence of any types of
     substances that would affect your ability to understand what
     you’re doing today?

     A: No.

     Q: Has anybody promised you anything other than what is set
     forth in the agreement in order to encourage you to sign the
     agreement?

     A: No.

     Q: You are doing this of your own free will?

     A: Yes.

     Q: Have you been satisfied with my firm’s representation of your
     interests in this matter?

     A: Yes.

     Q: Did I explain to you that should Judge Baldys approve this
     agreement he is going to circulate a Decision, from which you
     would have twenty days to appeal that Decision?

     A: Yes.

     Q: Did I explain to you that you could choose to waive that
     appeal, and what the consequences of waiving that appeal right
     would be?

     A: Yes.

     Q: Do you wish to waive that appeal?

     A: Yes.

N.T. Compromise and Release Hearing, 12/16/08, at 5-8 (emphasis added).

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      Counsel for the Jersey Shore Steel Company, Silvagni’s employer,

cross-examined Silvagni with respect to the employer’s and insurance

company’s subrogation interest pertaining to the third-party lawsuit.

Silvagni affirmed that he understood the subrogation interests, that he

understood the effect the agreement had on his rights under the Workers’

Compensation Act, that he had no questions about it, and that he wanted

Judge Baldys to approve the agreement. Id. at 10-11.

      Finally, Judge Baldys asked Silvagni if he felt he “had enough time to

think about this decision[,]” to which Silvagni replied, “Yes.” Judge Baldys

also stated:   “Am I correct this was a case which had been mediated and

there was a prior mediation conference and quite a bit of negotiation?”

Silvagni answered in the affirmative to that question as well. Id. at 10.

      In light of the foregoing, we find Silvagni’s claim fails.       Silvagni’s

assertion that he would never have settled his worker’s compensation claim

had he understood that it would terminate his medical coverage and wage

benefits is contradicted by the record.   Essentially, Silvagni claims that the

legal advice he received, that an adverse workers’ compensation decision

could adversely affect his third-party claim, or the “interplay” between the

workers’ compensation and third-party matters, was negligent, and this

caused   an    unknowing   and   involuntary   settlement   in   the   workers’

compensation matter.    Silvagni claims Defendant Schorr, who represented

him in the workers’ compensation matter, advised him that as a result of his


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catastrophic injuries, the third-party action was “of such great value” that

“the natural progression of the case” is to settle the workers’ compensation

matter “when there’s a third party case.” See Silvagni Deposition, 1/30/13,

at 147-48.

     During the colloquy, however, Silvagni acknowledged, under oath, that

he understood that in return for the settlement he would no longer receive

medical benefits or any other benefits under the Workers’ Compensation Act.

N.T. Compromise and Release Hearing, supra at 6-7.        Counsel engaged

Silvagni in a thorough colloquy, advising him of the consequences of the

settlement. The colloquy included questions from opposing counsel as well

as Judge Baldys. There is no indication that Silvagni’s assent to the

Compromise and Release Agreement was involuntary.          Silvagni is thus

barred from filing an action in negligence against Defendants.          See

Muhammad, supra (when client has signed off on final settlement

agreement, absent fraud, client may not later sue his attorney because he is

dissatisfied with settlement amount).   See also Banks v. Jerome Taylor

& Assoc., 700 A.2d 1329, 1332 (Pa. Super. 1997) (where dissatisfied

litigant merely wishes to second guess decision to settle due to speculation

he may have been able to “get a better deal,” Muhammad rule applies to

bar litigant from suing counsel for negligence). Compare Martos v.

Concilio, 629 A.2d 1037 (Pa. Super. 1993) (client displeased with results of

settlement agreement could not sue attorney for malpractice absent


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allegations of fraudulent inducement) with McMahon v. Shea, 688 A.2d

1179 (Pa. 1997) (holding Muhammad rule did not apply to divorce

settlement     where    counsel     allegedly   failed   to   advise    client   of   legal

ramification of settlement) and Collas v. Garnick, 624 A.2d 117 (Pa.

Super. 1993) (counsel who negligently advised personal injury clients that

signing general release did not bar future lawsuits against other possible

tortfeasors could be liable in negligence).

       Unless Silvagni had specifically pled, and could prove, Defendants

fraudulently    induced     him   into   signing   the   Compromise        and    Release

Agreement,3 or he could prove that Defendants failed to explain the effect of

that settlement, or that the settlement was somehow legally deficient,

Silvagni is barred from maintaining an action in negligence against

Defendants.      Viewing the record in the light most favorable to Silvagni, and

resolving all doubts as to whether there exists a genuine issue of material

fact against Defendants as the moving party, we conclude that it is clear that

Defendants are entitled to judgment as a matter of law.                We find no abuse

of discretion or error of law. Sokolsky, supra.

       Next, Silvagni argues that the trial court committed an error of law in

granting summary judgment under the Muhammad doctrine when the trial

court had previously denied Defendants’ preliminary objections. This claim,
____________________________________________


3
 Pa.R.C.P. 1019(b) states: “Averments of fraud or mistake shall be averred
with particularity.”



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too, is meritless.      Preliminary objections were filed in January 2012, and

Judge Marc Bernstein overruled them in June 2012.           Summary judgment

was granted by Judge Younge more than a year and a half later, after

Silvagni’s deposition.     The motions differ in kind, and a judge ruling on a

later motion is not precluded from granting relief although another judge has

denied   an   earlier    motion.   See    Goldey   v.   Trustees   of   Univ.   of

Pennsylvania, 675 A.2d 264, 267 (Pa. 1996).             See also Rosenfield v.

Pennsylvania Auto. Ins. Plan, 636 A.2d 1138 (Pa. Super. 1994) (when

reviewing preliminary objections, court looks to pleadings, but in considering

motion for summary judgment court weighs pleadings, depositions, answers

to interrogatories, admissions and affidavits; there is no reason to fail to

grant summary judgment if record warrants such action).

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2015




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