                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2005

Natl Grange Mutl Ins v. Goldstein
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3186




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                                                               NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ____________

                                     NO. 04-3186
                                    ____________

            NATIONAL GRANGE MUTUAL INSURANCE COMPANY,

                                                                        Appellant,

                                          v.

         GOLDSTEIN, HESLOP, STEEL, CLAPPER, OSWALT & STOEHR;
                          JOHN HESLOP, Esq.

                                    ____________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 02-cv-01031)
                  District Judge: The Honorable James F. McClure, Jr.


                                 Argued July 14, 2005

       BEFORE: ALITO, VAN ANTWERPEN and ALDISERT, Circuit Judges

                                (Filed August 2, 2005)

Steven E. Angstreich (Argued)
Levy, Angstreich, Finney, Baldante, Rubenstein & Coren, P.C.
1616 Walnut Street, 5 th Floor
Philadelphia, PA 19103

Attorney for Appellant

Jeffrey B. McCarron (Argued)
Kathleen M. Carson
Swartz Campbell LLC
1601 Market Street, 34 th Floor
Philadelphia, PA 19103

Attorneys for Appellees


                                         OPINION


VAN ANTWERPEN, Circuit Judge

       Appellant National Grange Mutual Insurance Co. (“National Grange”) challenges

the July 8, 2004, order of the District Court granting summary judgment in favor of

Appellees John Heslop, Esq. (“Heslop”) and the law firm of Goldstein, Heslop, Steel,

Clapper, Oswalt & Stoehr (“the Firm”). In this diversity case, the District Court held that

National Grange’s legal malpractice action could not lie under Pennsylvania law because

the plaintiff could not establish actual loss due to the appellees’ actions or inaction. For

the reasons set forth below, we will affirm.

                     I. FACTUAL AND PROCEDURAL HISTORY

       This legal malpractice action arose from Heslop’s representation of National

Grange in a breach of contract and bad faith action brought by Ralph Martin Coyler in the

Court of Common Pleas of Centre County, Pennsylvania (“Coyler v. Nat’l Grange”). The

events leading up to the Coyler v. Nat’l Grange litigation began on October 2, 1996, when

Coyler filed a products liability and breach of contract action against Ebac Systems, Inc.

(“Coyler v. Ebac”). Ebac had a commercial general liability policy with National Grange

and requested that National Grange provide legal representation in the Coyler v. Ebac

                                               2
litigation in accordance with that policy.

       Tracy Robinson, the National Grange employee assigned to handle Ebac’s request,

denied coverage to Ebac, and it appears that she did so without first following company

policy of obtaining a formal coverage opinion from an attorney. Because of this, Ebac

hired its own attorney to handle the Coyler v. Ebac matter. Coyler and Ebac entered into

a settlement agreement shortly before trial, whereby Ebac paid Coyler $130,000.00 and

assigned its rights under the National Grange insurance policy to Coyler.

       On March 8, 2000, Coyler, as Ebac’s assignee, filed his action against National

Grange alleging breach of contract and violation of the Pennsylvania bad faith statute

based on National Grange’s failure to defend or indemnify Ebac. Coyler served a copy of

the complaint on National Grange’s corporate counsel in New Hampshire. The National

Grange legal department received the complaint at some time in March 2000, and

forwarded it to Tracy Robinson in National Grange’s Richmond office on March 20,

2000. National Grange entrusted Robinson to handle the Coyler v. Nat’l Grange litigation

on behalf of the company.

       Robinson took no action in response to the complaint, and Coyler served a notice

of intent to take default on National Grange on April 6, 2000. Nor did any one else at

National Grange take any action, and Coyler filed a praecipe for entry of default judgment

in the Court of Common Pleas on April 27, 2000. On May 2, 2000, Willam McKenna,

the head of National Grange’s legal department, called Robinson regarding the praecipe



                                             3
to enter default judgment, and Robinson represented that she was handling the matter.

Again, however, Robinson took no action, and a default judgment was entered against

National Grange on May 1, 2000.

       National Grange received a notice of the entry of default sometime in May 2000.

On June 5, 2000, Coyler filed a praecipe to schedule an assessment of damages hearing in

the Court of Common Pleas. The hearing was scheduled for August 14, 2000, and Coyler

served a notice to attend the hearing on David Royer, National Grange’s Treasurer. As of

July 5, 2000, when Coyler served the notice to attend, no one at National Grange had yet

taken any action in response to Coyler’s suit against the company.1 Finally, on July 19,

2000, Appellee Heslop and his Firm were retained to represent National Grange in the

damages proceedings.

       Heslop asserts that he initially considered the possibility of filing a petition to open

the default judgment. However, he ultimately advised National Grange that such a

petition “would not have been advantageous” and recommended going forward only with

the presentation of a defense at the damages stage. Brief for Appellant at 6-7.2 On

November 15, 2000, the Court of Common Pleas entered its decision on damages. The


   1
    Although Robinson was the employee responsible for handling the Coyler v. Nat’l
Grange matter, Coyler served all of the relevant papers on National Grange’s
headquarters in New Hampshire in addition to providing personal copies to Robinson in
Richmond.
   2
     National Grange claims that Heslop made this recommendation without first
reviewing all of the relevant case materials, such as Ebac’s insurance policy with National
Grange.

                                              4
court awarded $130,000.00 in compensatory damages, $3,350,000.00 in punitive

damages, $62,245.00 in attorney’s fees, and compounded interest in the amount of

$142.763.00.

       National Grange then retained new counsel to handle post-trial litigation. Through

discussions with its new attorney, National Grange came to believe that Heslop was

negligent in failing to file a petition to open the default judgment and in failing to argue

that damages should be assessed under Virginia law.3 National Grange raised its choice

of law argument in a motion for post-trial relief in the Court of Common Pleas, which

was denied on May 4, 2001. The Superior Court of Pennsylvania affirmed on April 24,

2002, finding that National Grange waived its ability to invoke Virginia law on damages

when it allowed the default judgment to be entered pursuant to Pennsylvania law. The

state proceedings were eventually terminated when Coyler and National Grange entered

into a settlement agreement, whereby National Grange paid Coyler $2,500,000.00.

       On June 14, 2002, National Grange commenced this diversity action against

Heslop and the Firm in the United States District Court for the Middle District of

Pennsylvania. Applying Pennsylvania’s legal malpractice standards, the District Court

concluded that National Grange was unable to show actual loss due to the appellees’

inactions and entered summary judgment in favor of Appellees on July 8, 2004.

                  II. JURISDICTION AND STANDARD OF REVIEW

   3
   This alleged failure is significant because Virginia law places a cap on punitive
damages in a bad faith action at $350,000.00.

                                              5
       The District Court properly exercised jurisdiction over this case pursuant to 28

U.S.C. § 1332, as there is complete diversity of citizenship between the parties, and the

amount in controversy exceeds $75,000.00. This Court has jurisdiction over the timely

appeal of the District Court’s July 8, 2004, final order pursuant to 28 U.S.C. § 1291.

       This Court’s review of a lower court grant of summary judgment is de novo, and

we apply the same standard that the District Court should have applied. Union Pacific

R.R. v. Greentree Transp. Trucking Co., 293 F.3d 120, 125 (3d Cir. 2002). Under Fed. R.

Civ. P. 56(c), summary judgment should be granted where the “pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986). The material facts of this case are not in dispute. Our review is thus limited

to the purely legal question of whether National Grange failed as a matter of law to make

out a cause of action for legal malpractice.

                                     III. DISCUSSION

       As a federal court sitting in diversity, we apply Pennsylvania substantive law to

National Grange’s legal malpractice claims. See Erie R.R. v. Tompkins, 304 U.S. 64, 78

(1938); Banker v. Nighswander, Martin & Mitchell, 37 F.3d 866, 871 (2d Cir. 1994). To

succeed on a legal malpractice action under Pennsylvania law, a plaintiff must establish

the following elements: “1) employment of the attorney or other basis for duty; 2) the



                                               6
failure of the attorney to exercise ordinary skill and knowledge; and 3) that such

negligence was the proximate cause of damage to the plaintiff.” Kituskie v. Corbman,

714 A.2d 1027, 1029 (Pa. 1998) (quoting Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989)).

       “An essential element to this cause of action is proof of actual loss rather than a

breach of professional duty causing only nominal damages, speculative harm or the threat

of future harm.” Kituskie, 714 A.2d at 1030. Therefore, aside from showing that the

defendants’ representation was deficient, “a legal malpractice action in Pennsylvania

requires the plaintiff to prove that he had a viable cause of action against the party he

wished to sue in the underlying case.” Id. In other words, “a plaintiff must prove a case

within a case since he must initially establish by a preponderance of the evidence that he

would have recovered a judgment in the underlying action,” id., before reaching the

attorney’s alleged failure to exercise ordinary skill and knowledge. “It is only after the

plaintiff proves he would have recovered a judgment in the underlying action that the

plaintiff can then proceed with proof that the attorney he engaged to prosecute or defend

the underlying action was negligent. . . .” Id.

       In this case, National Grange claims that Heslop’s representation at the assessment

of damages stage of the Coyler v. Nat’l Grange matter was negligent in two respects: (1)

he failed to file a petition to open the default judgment, and (2) he failed to argue that

damages should be capped pursuant to Virginia law. Thus, in order for National Grange’s

malpractice claim to succeed, it must first establish as a threshold matter that a petition to



                                              7
open or a choice of law argument would have been successful if made. See id. The

District Court granted summary judgment based on the determination that neither action

would have been successful under Pennsylvania law and therefore declined to reach the

issue of whether Heslop exercised ordinary skill and knowledge.

A.     Petition to Open

       In order to succeed on a petition to open a default judgment under Pennsylvania

law, “(1) the petition to open must be promptly filed; (2) the failure to appear or file a

timely answer must be excused; and (3) the party seeking to open the judgment must

show a meritorious defense.” McCoy v. Pub. Acceptance Corp., 305 A.2d 698, 700 (Pa.

1973); see also Balk v. Ford Motor Co., 285 A.2d 128, 130-31 (Pa. 1971); Seeger v. First

Union Nat’l Bank, 836 A.2d 163, 165 (Pa. Super. Ct. 2003). The District Court

concluded that a petition to open the default judgment in Coyler v. Nat’l Grange would

have failed under the first two prongs of this standard.

       Regarding promptness, the length of delay in filing a petition to open is measured

from the date the defendant receives the entry of default judgment. Ruczynski v. Jesray

Constr. Corp., 326 A.2d 326, 328 (Pa. 1974). In this case, National Grange received

notice of the entry of default early in May 2000. Even if Heslop had filed a petition to

open on the day he was retained (July 19, 2000), filing would have been delayed

approximately two and one-half months. As the District Court noted, we cannot say that

a two and one-half-month delay is untimely as a matter of Pennsylvania law. Compare



                                              8
McCoy, 305 A.2d at 699-700 (filing after two and one-half weeks not prompt); Allegheny

Hydro No. 1 v. A. Line Bldrs., 722 A.2d 189, 194 (Pa. Super. Ct. 1998) (filing after 41

days not prompt); with Liberty Nat’l Bank & Trust Co. v. Yackovich, 99 F.R.D. 518, 520

(W.D. Pa. 1982) (filing after almost six months’ delay still prompt); Queen City Elec.

Supply Co. v. Soltis Elec. Co., 421 A.2d 174, 175 (Pa. 1980) (filing after 21-month delay

prompt under the circumstances). That said, the District Court concluded that the delay

would have rendered a petition untimely under the circumstances in this case because

National Grange could not provide a reasonable excuse for the delay.

       The District Court similarly determined that National Grange could not provide a

sufficient excuse under the second prong for its failure to answer Coyler’s complaint in

the first place. National Grange asserts the same excuse for both its failure to answer the

complaint and its delay in filing a petition to open: the company relied on the

misrepresentations of its “rogue employee,” Tracy Robinson, that she was handling the

matter. National Grange argues that it reasonably entrusted Robinson to handle the

Coyler litigation and was under a “justifiable belief” that the company’s interests were

being protected.

       We note first that, even if Robinson’s actions could justify the company’s initial

failure to answer Coyler’s complaint, they do not account for the delay in filing a petition

to open. Coyler served all relevant papers on National Grange’s headquarters in New

Hampshire in addition to sending separate copies to Robinson. It is undisputed that



                                             9
National Grange’s legal department received notice of the default in early May 2000.

Thus, even if management had believed that Robinson was protecting the company’s

interests prior to the entry of default, they were on notice that Robinson had failed in her

duties in May 2000. Still, National Grange delayed another two and one-half months

before hiring Heslop and the Firm. Any delay that occurred after the legal department

received notice of the default judgment cannot be justified by claims that National Grange

reasonably believed Robinson was handling the litigation.

       Aside from the promptness issue, the District Court found that National Grange’s

reliance on its “rogue employee” would not be sufficient justification for the company’s

failure to appear and answer Coyler’s complaint. Under Pennsylvania case law, a

petitioner may establish sufficient justification based on oversight, inadvertence, or

clerical error by an employee. See, e.g., Balk, 285 A.2d at 132 (sufficient justification

where defendant’s insurance company negligently lost the complaint); Fox v. Mellon, 264

A.2d 623, 625 (Pa. 1970) (excusable neglect where defendant’s insurance company

mistakenly believed it had more time to respond and the defendant himself was not

sophisticated enough to notice a problem); see also Campbell v. Heilman Homes, Inc.,

335 A.2d 371, 373 (Pa. Super. Ct. 1975) (“where failure to answer was due to an

oversight, an unintentional omission to act, or a mistake of the rights and duties of the

appellant, the default judgment may be opened.”).

       We agree with the District Court that Robinson’s actions on behalf of National



                                             10
Grange amounted to more than mere inadvertence or oversight. The Superior Court of

Pennsylvania’s decision in Campbell provides an example of excusable neglect on the

part of a company based on the inattentiveness of an employee. In that case, a complaint

against Heilman Homes, a seller of mobile homes, was served on the manager of one of

its sales lots. The lot manager did not forward the complaint to Heilman’s home offices,

thereby failing to follow company procedure. In declining to “saddle” the company with

a default judgment due to its employee’s inadvertence, the Superior Court noted that the

company’s mistake was “not unlike a clerical error.” Id. at 373.

       Unlike the defendant in Campbell, National Grange was aware of Coyler’s action

against the company and specifically delegated the responsibility for handling the matter

to its employee, Robinson. The District Court thus determined that Campbell is

inapposite and instead relied on the Superior Court’s decision in Autologic, Inc. v.

Cristinzio Movers, 481 A.2d 1362 (Pa. Super. Ct. 1985). Like this case, Autologic

involved the failures of an employee who was entrusted to handle claims against the

defendant company. See id. at 1363. The Superior Court expressly distinguished

Campbell and other cases involving mere inadvertence and clerical error:

       The fact remains that it was this type of employee that appellant chose to
       give responsibility to for handling damage claims. . . . Thus, appellant’s
       failure to respond to the complaint was not due to simply the inattentiveness
       of its employee, but to her conscious decision which it had empowered her
       to make.

Id. at 1364. We agree with the District Court that National Grange’s asserted justification



                                            11
for its failure to answer Coyler’s complaint is no closer to mere inadvertence than the

excuse rejected by the Superior Court in Autologic.

       National Grange attempts to distinguish its excuse from the one asserted by the

defendant in Autologic by labeling Robinson a “rogue employee.” As we understand it,

the distinction that National Grange draws between this case and Autologic is that

National Grange reasonably relied on Robinson, who had demonstrated reliability in the

past,4 whereas the defendant in Autologic unreasonably relied on an unqualified

employee. In other words, National Grange did not make the deliberate decision not to

defend but rather reasonably believed that its interests would be protected by giving the

case to Robinson, who unforeseeably misled the company and failed in her duties.

       This distinction is neither real nor meaningful. There was no suggestion in

Autologic that the defendant’s entrusted employee was generally unqualified to handle

her responsibilities. Moreover, like National Grange, the defendant company in

Autologic apparently intended to defend the underlying litigation but was prevented from

doing so by the mistakes of its employee. See id. at 1363. Thus, insofar as National

Grange was prevented from defending the Coyler matter because it delegated

responsibility to an employee who chose not to perform her duties by answering the

complaint, this case is directly analogous to Autologic.



   4
    We note that the notion that Robinson had always been a stellar employee who had
an unexpected lapse in character appears to be belied by her prior failure to follow
company policy with respect to the Coyler v. Ebac matter. See Section I, supra.

                                            12
       However, National Grange claims that the District Court failed in its obligation to

predict how the Supreme Court of Pennsylvania would have ruled on this case by relying

on state intermediate appellate court decisions. Brief for Appellant at 14 (“[B]y simply

determining that Autologic controlled, the District Court failed in its function to ‘predict’

the law of the highest court of the jurisdiction.”). National Grange argues that the

Supreme Court of Pennsylvania has not addressed the specific issue of whether reliance

on a “rogue employee” can constitute a sufficient excuse for failing to answer a complaint

under the standards for reviewing a petition to open.

       Federal courts sitting in diversity “are to apply state law as interpreted by the

state’s highest court. In the absence of guidance from that court we are to refer to

decisions of the state’s intermediate appellate courts for assistance in determining how

the highest court would rule.” McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d Cir.

1994) (citations omitted) (emphasis added). In this case, the District Court applied well-

settled law from the highest court in Pennsylvania regarding what factors must be

considered in reviewing a petition to open a default judgment. Although the state’s

highest court has not decided a case with the precise factual background presented here,

the District Court correctly looked to decisions from the state’s intermediate appellate

courts for guidance in applying the well-settled law to the undisputed facts of this case.

Specifically, Pennsylvania law clearly requires that a party petitioning to open a default

judgment must establish a sufficient excuse for failing to answer the underlying complaint



                                             13
and provides that inadvertence or oversight may constitute a sufficient excuse. See Balk,

285 A.2d at 132; Fox, 264 A.2d at 625. The District Court properly looked to factually

analogous decisions from the Superior Court of Pennsylvania to determine that the

inaction of National Grange, through its employee, went beyond mere inadvertence.

         Contrary to National Grange’s assertions, Autologic and Campbell do not involve

conflicting interpretations of state law. Rather these cases involve the application of the

same legal principle to differing sets of facts.5 Our review of the District Court’s opinion

reveals that the court properly reviewed both cases and was persuaded by the reasoning in

Autologic, which was factually more similar to the case at hand. The District Court

demonstrated an awareness of the proper approach to state law, and we will not find error

merely because the District Court did not expressly “predict” that the Supreme Court of

Pennsylvania would apply state law to the facts of this case in the same way. We will not

elevate form over substance and find reversible error.

B.       Choice of Law

         We also agree with the District Court that National Grange could not sustain a

legal malpractice claim based on its choice of law argument because National Grange had

     5
     In both cases, the Superior Court recognized that Pennsylvania law provides that
clerical error or mere oversight by an employee may constitute a sufficient legal
justification for failing to answer a complaint. Autologic, 481 A.2d at 1364; Campbell,
335 A.2d at 373. While the court in Campbell held that an inattentive employee’s
oversight in forwarding papers to his superiors “is not unlike a clerical error,” 335 A.2d at
373, the court in Autologic expressly distinguished situations in which an employee
makes a “conscious decision which [the company] entrusted her to make” from simple
inattentiveness, 481 A.2d at 1364.

                                             14
already waived its ability to invoke Virginia law by the time it retained Helsop. Under

Pennsylvania law, issues involving choice of law are not jurisdictional and may be waived

if not raised. See 42 Pa.C.S.A. § 5327(a) (“A party who intends to raise an issue

concerning the law of any jurisdiction . . . outside the Commonwealth shall give notice in

his pleadings or other reasonable written notice.” (emphasis added)); see also Pa.R.C.P.

No. 1030(a), 42 Pa.C.S.A. (requiring parties to plead non-jurisdictional defenses in a

responsive pleading). Therefore, by failing to file a responsive pleading which raised the

choice of law issue, National Grange waived its ability to invoke Virginia law. See

Pa.R.C.P. No. 1032(a), 42 Pa.C.S.A. (“A party waives all defenses and objections which

are not presented either by preliminary objection, answer or reply. . . .”).6

       For these reasons, had Heslop argued after the default judgment had already been

entered and the time to file responsive pleadings had passed, that Virginia’s law on

damages was applicable, such an argument would have failed.

                                    IV. CONCLUSION

       Because a petition to open the default judgment and a choice of law argument at

the assessment of damages stage would have been rejected if made, National Grange

cannot establish that it would have succeeded in the underlying Coyler v. Nat’l Grange

   6
     National Grange now asserts that an attempt to argue that Virginia law applied after
the default judgment had already been entered could have been construed as a motion to
amend the pleadings under Pa.R.C.P. No. 1033, 42 Pa.C.S.A. Although a motion under
Rule 1033 may be made at any time, even after trial, see Winterhalter v. West Penn Power
Co., 512 A.2d 1187, 1189 (Pa. Super. Ct. 1986), National Grange did not submit any
responsive pleadings in this case that might be “amended” pursuant to this rule.

                                              15
litigation but for the omissions of Heslop and the Firm. Therefore, under Pennsylvania’s

law on legal malpractice, whether these omissions constitute a failure to exercise ordinary

skill and knowledge is irrelevant. See Kituskie, 714 A.2d at 1030. We will therefore

affirm the July 8, 2004, Order and Memorandum Opinion of the District Court.




                                            16
