J-A23036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NORTHWEST SAVINGS BANK                        IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellant

                     v.

BABST, CALLAND, CLEMENTS AND
ZOMNIR, P.C. AND ELIZABETH A.
DUPUIS, ESQUIRE

                          Appellees               No. 1611 WDA 2014


             Appeal from the Judgment Entered September 9, 2014
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD-12-012585


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                 FILED NOVEMBER 19, 2015

     Appellant, Northwest Savings Bank (“Bank”), appeals from the

summary judgment entered in the Allegheny County Court of Common

Pleas, in favor of Appellees, Babst, Calland, Clements and Zomnir, P.C.

(“Appellee Law Firm”) and Elizabeth A. DuPuis, Esquire (“Appellee DuPuis”).

We affirm.

     The relevant facts and procedural history of this case are as follows.

Bank held two mortgage liens on a commercial property in Lebanon County

known as Hillbilly Jack’s Restaurant (“the Property”). Bank and the owners

of the Restaurant, Zimark LLC (“Owners”), executed the first mortgage,

valued at $430,000.00, on March 1, 2007. Bank and Owners executed the

second mortgage, valued at $40,000.00, on January 8, 2008. In 2009, Bank
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contacted Appellee Law Firm to represent Bank in a possible foreclosure

action on the Property.       The parties did not enter into a formal

representation agreement.

     On August 5, 2010, Ellen Cowan (“Ms. Cowan”), contacted Bank’s

credit administrator, Paul DeArment (“Mr. DeArment”), and indicated the

Owners had hired Ms. Cowan as a realtor to sell the Property. Ms. Cowan

also informed Mr. DeArment that a sheriff sale was pending based on two

years’ of back taxes. Ms. Cowan asked if Bank was interested in paying the

back taxes to remove the Property from the sale.             Mr. DeArment

subsequently emailed Appellee DuPuis and informed her of the situation with

the Property. Appellee DuPuis responded on August 9, 2010, and told Mr.

DeArment that the sale scheduled for September 2010 was an upset tax sale

that would not divest Bank of its mortgage liens on the Property. Appellee

DuPuis also told Mr. DeArment that a judicial sale was not currently

scheduled and the Lebanon County Tax Claim Bureau would have to provide

Bank with formal notice before such a sale could occur. Nobody bid on the

Property at the tax upset sale on September 13, 2010, and Bank’s interest in

the Property remained unaffected.

     On September 23, 2010, Ms. Cowan contacted Mr. DeArment by email,

and told Mr. DeArment that the Lebanon County Tax Claim Bureau (“Tax

Claim Bureau”) was preparing for a judicial sale of the Property, tentatively

scheduled for either December 6, 2010 or December 13, 2010. Ms. Cowan


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told Mr. DeArment that if the judicial sale went forward, Bank would lose its

lien interest in the Property and a new buyer would take the Property free

and clear of all liens. Mr. DeArment forwarded the email to Appellee DuPuis

and suggested that they should discuss the situation with the Property. The

following week, Mr. DeArment and Appellee DuPuis had a telephone

conversation in which Appellee DuPuis told Mr. DeArment that a judicial sale

of the Property was not yet scheduled.

     On October 22, 2010, the Tax Claim Bureau filed a petition for sale of

unsold properties, including the Property.     On October 26, 2010, the

Lebanon County Court of Common Pleas issued a rule on all interested

parties to show cause why the properties listed in the petition should not be

sold, free and clear of their respective claims, liens, and mortgages.   The

court scheduled a hearing for November 30, 2010.

     On November 3, 2010, the sheriff’s department served notice of the

judicial sale at Bank’s Lebanon County branch office.          The sheriff’s

department also served notice of the judicial sale at Bank’s York County

branch office on November 5, 2010.        For unknown reasons, the notices

received at the two branches were not successfully delivered to Mr.

DeArment at Bank’s headquarters in Warren County. As a result, neither Mr.

DeArment nor Appellee DuPuis attended the November 30, 2010 hearing,

and the court subsequently listed the Property as one of the properties to be

sold free and clear of all liens at the judicial sale on December 20, 2010.


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The Property sold for $27,000.00 to LJE and LLE Investment Resource

Holdings at the public auction on December 20, 2010, with neither Bank nor

Appellee DuPuis present.

      In mid-January of 2011, Bank learned of the sale of the Property and

notified Appellee DuPuis. Appellee DuPuis filed a petition to re-open the sale

on behalf of Bank on February 4, 2011, alleging Bank received defective

notice of the sale.   On August 12, 2011, the court held a hearing on the

petition, determined Bank received sufficient notice of the sale, and denied

Bank’s petition to re-open the sale.

      On January 9, 2013, Bank filed a complaint against Appellees in which

Bank alleged Appellees had committed legal malpractice and breached their

fiduciary duty to Bank with respect to the Property. Appellees filed a motion

for summary judgment on July 10, 2014.          The court granted summary

judgment in favor of Appellees on September 9, 2014. On October 2, 2014,

Bank timely filed a notice of appeal. The court did not order Bank to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Bank did not file one.

      Bank raises the following issues for our review:

         WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW
         BY FAILING TO IDENTIFY A GENUINE ISSUE OF MATERIAL
         FACT ARISING FROM CONTRADICTORY TESTIMONY ON
         THE MATERIAL ISSUES OF WHETHER THE BANK ADVISED
         [APPELLEE DUPUIS] THAT THE PROPERTY WAS BEING
         EXPOSED TO THE JUDICIAL SALE BEFORE THE SALE
         OCCURRED, AND WHETHER [APPELLEE DUPUIS] FALSELY
         ADVISED THAT THE SALE WAS NOT HAPPENING[?]

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         WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW
         BY   FAILING   TO    IDENTIFY  AND   CREDIT   THE
         UNCONTRADICTED OPINIONS OF [BANK’S] EXPERTS THAT
         [APPELLEE] DUPUIS FELL BELOW THE STANDARD OF CARE
         FOR A PENNSYLVANIA COLLECTIONS ATTORNEY[?]

         WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW
         BY GRANTING SUMMARY JUDGMENT ON [BANK’S] CLAIMS
         FOR BREACH OF CONTRACT AND BREACH OF FIDUCIARY
         DUTY WHERE THE MOTION FOR SUMMARY JUDGMENT
         ONLY   RELATED  TO   [BANK’S]  ALLEGATIONS   OF
         NEGLIGENCE[?]

(Bank’s Brief at 3-4).

      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. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

347 (Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).   Our scope of review is plenary.    Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).         In reviewing a trial

court’s grant of summary judgment,

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there


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        exists a genuine issue of material fact. We view the record
        in the light most favorable to the non-moving 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. All doubts as to the existence of a genuine issue
        of a material fact must be resolved against the moving
        party.

        Motions for summary judgment necessarily and directly
        implicate the plaintiff’s proof of the elements of [a] cause
        of action.   Summary judgment is proper if, after the
        completion of discovery relevant to the motion, including
        the production of expert reports, an adverse party who will
        bear the burden of proof at trial has failed to produce
        evidence of facts essential to the cause of action or
        defense which in a jury trial would require the issues to be
        submitted to a jury. In other words, whenever there is no
        genuine issue of any material fact as to a necessary
        element of the cause of action or defense, which could be
        established by additional discovery or expert report and
        the moving party is entitled to judgment as a matter of
        law, summary judgment is appropriate. Thus, a record
        that supports summary judgment either (1) shows the
        material facts are undisputed or (2) contains insufficient
        evidence of facts to make out a prima facie cause of action
        or defense.

        Upon appellate review, we are not bound by the trial
        court’s conclusions of law, but may reach our own
        conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

     In its first issue, Bank argues there is a genuine issue of material fact

created by Mr. DeArment and Appellee DuPuis’ “contradicting testimony.”

Bank claims Appellee DuPuis’ testimony that she did not remember receiving


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a forward of Ms. Cowan’s September 23, 2010 email contradicts Mr.

DeArment’s testimony that Appellee DuPuis told him that Ms. Cowan’s email

was incorrect and a judicial sale of the Property was not scheduled. Bank

asserts this contradictory testimony, when viewed in the light most favorable

to Bank as the non-moving party, establishes that Appellee DuPuis gave

incorrect legal advice about the judicial sale.      Bank concludes the court

either     disregarded   the    testimony    or   made    improper     credibility

determinations which should have been left to the jury, and this Court

should reverse and remand for trial. We disagree.

         “To maintain a claim of legal malpractice based on negligence, a

plaintiff must show an attorney-client or analogous professional relationship

with the defendant-attorney.” Hess v. Fox Rothschild, LLP, 925 A.2d 798,

806 (Pa.Super. 2007), appeal denied, 596 Pa. 733, 945 A.2d 171 (2008).

Significantly:

           Absent an express contract, an implied attorney-client
           relationship will be found if (1) the purported client sought
           advice or assistance from the attorney, (2) the advice
           sought was within the attorney’s professional competence;
           (3) the attorney expressly or impliedly agreed to render
           such assistance; and (4) it is reasonable for the putative
           client to believe the attorney was representing him.

Cost v. Cost, 677 A.2d 1250, 1254 (Pa.Super. 1996), appeal denied, 547

Pa. 727, 689 A.2d 233 (1997) (internal citations omitted).

         In a cause of action for legal professional malpractice based on

negligence, the plaintiff must demonstrate: (1) employment of the attorney


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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

damages to the plaintiff. Sabella v. Estate of Milides, 992 A.2d 180, 186-

87 (Pa.Super. 2010), appeal denied, 608 Pa. 642, 9 A.3d 631 (2010). “[A]n

attorney who undertakes representation of a client owes that client both a

duty of competent representation and the highest duty of honesty, fidelity,

and confidentiality.”    Capital Care Corp. v. Hunt, 847 A.2d 75, 84

(Pa.Super. 2004).

      Significantly, “[a]n attorney will be deemed negligent if he or she fails

to possess and exercise that degree of knowledge, skill and care which

would normally be exercised by members of the profession under the same

or similar circumstances.”    Fiorentino v. Rapoport, 693 A.2d 208, 212

(Pa.Super. 1997), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997)

(internal quotation marks omitted). “A lawyer should exert [her] best efforts

to insure that [actions] of [her] client are made only after the client has

been informed of relevant considerations.”      Collas v. Garnick, 624 A.2d

117, 120 (Pa.Super. 1993), appeal denied, 535 Pa. 672, 636 A.2d 631

(1993). “A lawyer is not required to be infallible; however, …she is expected

to conduct that measure of research sufficient to allow the client to make an

informed decision.” Fiorentino, supra at 213. “The existence of a duty is

a question of law for the court to decide.” R.W. v. Manzek, 585 Pa. 335,

346, 888 A.2d 740, 746 (2005).


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      Instantly, Bank and Appellees agree Appellee DuPuis’ response to Mr.

DeArment’s August 5, 2010 email correctly informed Bank that the tax upset

sale, scheduled for September 2010, would not divest Bank of its mortgage

liens on the Property. The parties also agree Appellee DuPuis told Bank that

the Tax Claim Bureau would have to provide Bank with formal notice before

a judicial sale of the Property could occur. For purposes of the motion for

summary judgment, the parties further agree that Mr. DeArment forwarded

Ms. Cowan’s September 23, 2010 email to Appellee DuPuis about a possible

judicial sale, and Appellee DuPuis promptly replied to Mr. DeArment by

telephone that a judicial sale of the Property was not scheduled at that time.

The record makes clear Appellee DuPuis’ information about a possible

judicial sale was correct at the time given, because the Tax Claim Bureau did

not file its petition for sale of unsold properties until October 22, 2010.

      Further, nothing in the record suggests Bank asked Appellee DuPuis to

monitor the court dockets for a judicial sale of the Property.      Additionally,

nothing in the record supports Bank’s assertion that Appellee DuPuis should

have learned of the judicial sale after the Tax Claim Bureau filed its petition

on October 22, 2010. In fact, the record reveals, and the parties agree, that

Bank received notice of the judicial sale at two of Bank’s branches on

November 3, 2010 and November 5, 2010. Appellees did not receive notice

of the sale and were not attorneys of record with respect to the Property.

Thus, Appellee DuPuis consistently provided Bank with correct information so


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Bank would be on notice if a judicial sale was scheduled. Because the Bank

set forth no evidence to suggest Appellee DuPuis expressly or impliedly

agreed to monitor the dockets or anticipate that Bank would mishandle the

notice of judicial sale it had received, Appellees owed Bank no duty in this

context. See Sabella, supra. Therefore, no genuine issue of material fact

existed regarding whether the Property was being exposed to a judicial sale

at the time Appellee DuPuis told Bank that the sale was not scheduled.

Bank’s first issue merits no relief.

      In its second issue, Bank argues its experts’ opinions create a genuine

issue of material fact that precludes summary judgment.       Bank claims its

experts opined that Appellee DuPuis’ failure to contact the Tax Claim Bureau

to inquire about the status of the Property, after receiving Mr. DeArment’s

September 23, 2010 email, fell below the applicable standard of care for a

Pennsylvania collections attorney. Bank states Appellees did not offer any

evidence to contradict the opinions of Bank’s experts, so the court should

have credited the reasonable inferences from the opinions in favor of Bank

as the non-moving party.      Bank avers the opinions of its experts directly

contradict the trial court’s findings in favor of Appellees. Bank concludes the

opinions of its experts create a genuine issue of material fact regarding

Appellee DuPuis’ actions and this Court should reverse and remand for trial.

We disagree.

      With regard to expert opinions in the context of summary judgment,


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Pennsylvania law states that, the credibility and weight attributed to those

conclusions are not proper considerations at summary judgment. DeArmitt

v. New York Life Ins. Co., 73 A.3d 578 (Pa.Super. 2013) (citing Glaab v.

Honeywell Intern., Inc., 56 A.3d 693, 697-98 (Pa.Super. 2012)).

Likewise, neither the moving party nor the non-moving party can rely on its

own witness’ testimony via affidavits or deposition, either to prevail or

defeat summary judgment. DeArmitt, supra (citing generally Borough of

Nanty-Glo v. American Surety Co. of New York, 309 Pa. 236, 163 A.

523 (1932)).    “The function of the summary judgment proceedings is to

avoid a useless trial but is not, and cannot be used[,] to provide for trial by

affidavits or trial by depositions. That trial by testimonial affidavit is

prohibited cannot be emphasized too strongly.”      DeArmitt, supra at 595.

At the summary judgment stage, the court must initially determine whether

the plaintiff has alleged facts sufficient to establish a prima facie case; next

the court must determine whether there is any discrepancy as to any

material facts of the case; finally, the court must refrain from acting as fact-

finder by resolving any material issues of fact. Id. at 594-95.

      Instantly, the record makes clear the Bank did not ask Appellee DuPuis

to monitor the status of the Property within the court dockets or with the

Tax Claim Bureau. Thus, the court correctly held that Appellees owed Bank

no duty to monitor the status of the Property, and Bank failed to make out a

prima facie case of legal malpractice. See DeArmitt, supra. Further, given


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the court’s determination that Appellees owed no duty to Bank, the court

was under no obligation to consider the opinions of Bank’s experts. Bank’s

suggestion that the court should have credited its experts’ opinions in Bank’s

favor is inappropriate where the court must refrain from making credibility

and weight determinations at the summary judgment stage. Id. Therefore,

the opinions of Bank’s experts did not create a genuine issue of material

fact, and Bank’s second issue on appeal warrants no relief.

      In     its   third   issue,   Appellant   argues   summary     judgment    was

inappropriate as to Appellant’s breach of contract and breach of fiduciary

duty claims.       Appellant avers Appellees’ motion for summary judgment

related    only    to   Appellant’s    negligence   claim   and   addressed   neither

Appellant’s breach of contract claim nor Appellant’s breach of fiduciary duty

claim against Appellees. Appellant states it can assert a breach of contract

and a breach of fiduciary duty as well as a negligence claim against

Appellees.     Appellant contends Appellees offered no basis for dismissal of

either Appellant’s breach of contract claim or breach of fiduciary duty claim.

Appellant concludes the court should have construed Appellees’ motion as a

motion for partial summary judgment with respect to negligence only, and

this Court should reverse and remand for trial on the breach of contract and

breach of fiduciary duty claims. We disagree.

      “Activity is actionable if it constitutes breach of a duty imposed by

statute or by common law.             Maritrans GP Inc. v. Pepper, Hamilton &


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Scheetz, 529 Pa. 241, 253, 602 A.2d 1277, 1283 (1992).                   A legal

malpractice claim based on breach of contract, “involves (1) the existence of

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

damages.”    Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282,

1287 (Pa.Super. 2009), appeal denied, 604 Pa. 691, 985 A.2d 972 (2009).

With respect to a legal malpractice claim based on breach of contract, this

Court has stated:

         [T]he attorney’s liability must be assessed under the terms
         of the contract. Thus, if attorney agrees to provide…her
         best efforts and fails to do so, an action in assumpsit will
         accrue. 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.

Fiorentino, supra at 213 (internal citations omitted).

      With respect to a breach of fiduciary duty claim, “a confidential

relationship and the resulting fiduciary duty may attach wherever one

occupies toward another such a position of advisor or counsellor as

reasonably to inspire confidence that [s]he will act in good faith for the

other’s interest.” Basile v. H & R Block, Inc., 777 A.2d 95, 102 (Pa.Super.

2001), appeal denied, 569 Pa. 714, 806 A.2d 857 (2002).          The fiduciary

duty owed by an attorney arises from either an express or implied attorney-

client relationship.   See Estate of Pew, 655 A.2d 521, 545 (Pa.Super.

1994).

         The [Pennsylvania] Supreme Court [has] held that part of
         the fiduciary duty which arises out of the attorney client

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         relationship is that of undivided loyalty. This duty, the
         Court emphasized, prohibits an attorney from engaging in
         activity which constitutes a conflict of interest, and the
         Court held that a breach of that duty by the attorney is
         actionable.

Gorski v. Smith, 812 A.2d 683, 711 (Pa.Super. 2002), appeal denied, 579

Pa. 692, 856 A.2d 834 (2004).

      Instantly, the record belies Bank’s claim. In Bank’s complaint, Bank

averred identical facts in support of its negligence claim, breach of contract

claim, and breach of fiduciary duty claim.     Because all of the assertions

contained in Bank’s complaint raised the same misconduct, the trial court

properly assessed Bank’s claims as one.      Additionally, Bank and Appellees

did not enter into a formal contract with respect to the Property, and

Appellee DuPuis made no promise to Bank that Appellee DuPuis would

monitor the status of the Property.    Thus, no express or implied contract

existed between Appellees and Bank from which Bank could successfully

assert a breach of contract claim. See Zokaites Contracting Inc., supra.

Because no contract creating an attorney-client relationship existed between

the parties with respect to the Property at issue, Appellees owed Bank no

fiduciary duty in this context; and Bank’s breach of fiduciary duty claim fails

as well. See Estate of Pew, supra.

      When Appellees filed their motion for summary judgment, they broadly

challenged Bank’s claim that Appellees owed a duty to Bank under any

theory asserted.   The record makes clear that Bank did not ask Appellee


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DuPuis to monitor the status of the Property, and the trial court properly

determined Appellees owed Bank no duty under any theory alleged in Bank’s

complaint. Therefore, the trial court properly granted summary judgment in

favor of Appellees as to all of Bank’s claims; and Bank’s third issue on

appeal lacks merit. Accordingly, we affirm the summary judgment entered

in favor of Appellees.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




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