J-S64028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MATTHEW I. KURZWEG,                            IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

HENRY MILLER,

                            Appellee                No. 630 WDA 2014


                     Appeal from the Order October 7, 2013
               In the Court of Common Pleas of Allegheny County
                       Civil Division at No(s): GD-04-411


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 7, 2014

       Matthew L. Kurzweg appeals from the order entered October 7, 2013,

overruling preliminary objections raised against Henry Miller’s amended

complaint.1 We reverse.

       Appellee Henry Miller and Appellant Matthew Kurzweg are Pittsburgh-

based attorneys.       A dispute between them arose when Appellee claimed

Appellant owed him a contingent fee earned for prior legal work.




____________________________________________


1
  This Court granted Kurzweg’s petition for review brought pursuant to
Pa.R.A.P. 1311(b). See Order of Court, No. 137 WDM 2013 (Apr. 22, 2014).
Thereafter, the case was transferred to the current docket.
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       In 1997, Janice Miller hired Appellee to represent her in a potential

medical malpractice case.2 Appellee initiated the case on her behalf by writ

of summons and, thereafter, filed a complaint in December 1999.            In

January 2002, Ms. Miller discharged Appellee, allegedly the result of

machinations orchestrated by Ms. Miller, Appellant, and his secretary, Kathie

McBride.     Appellant entered his appearance on behalf of Ms. Miller in

February 2002.        In September 2003, Appellant settled the case on Ms.

Miller’s behalf and subsequently collected a contingent fee.         Appellee

demanded payment of some portion of the fee at various times, but

Appellant did not acquiesce.

       Appellee commenced the current matter by writ of summons in

January 2004.         Eventually in 2012, Appellee filed a complaint and,

thereafter, an amended complaint, pleading six counts against Ms. Miller,

Appellant, and Ms. McBride, and seeking the entire contingent fee from the

malpractice case. In July 2013, the trial court dismissed for non pros five of

the six counts pleaded.3 The only remaining claim alleged unjust enrichment

against Appellant.


____________________________________________


2
  It does not appear from the record that Henry Miller and Janice Miller are
related.
3
 On August 13, 2013, Appellee timely filed a motion to reconsider entry of
non pros, which the trial court denied on September 9, 2013. In light of our
order reversing the dismissal of Appellant’s preliminary objections, and the
(Footnote Continued Next Page)


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      Appellant filed preliminary objections in the nature of a demurrer. See

Pa.R.C.P. 1028(a)(4).         The trial court denied those objections.   Appellant

petitioned the court to certify that its order denying Appellant’s preliminary

objections involved a controlling question of law as to which there is a

substantial ground for difference of opinion, but the trial court denied his

petition. Nevertheless, this Court granted Appellant’s petition for review and

issued a stay pending this appeal. See supra, n.1.

      Appellant raises the following question:

      Whether the Court of Common Pleas of Allegheny County erred
      in overruling Appellants’s [sic] Preliminary Objections, pursuant
      to Pa.R.C.P. 1028(a)(4), to a discharged attorney’s claim of
      unjust enrichment against a successor attorney who replaced the
      discharged attorney and who collected a contingent legal fee as
      a result of settlement of the client’s case.

Appellant’s Brief, at 3.

      We apply the following standard:

      [O]ur 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
                       _______________________
(Footnote Continued)

lifting of the stay pending appeal, Appellee may now appeal the denial of his
motion for reconsideration of entry of non pros.



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      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)).

      According to Appellant, Pennsylvania does not recognize a claim in

unjust enrichment, or quantum meruit, brought by a former attorney against

a subsequent attorney, citing in support Meyer, Darragh, Buckler,

Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, PC, 95

A.3d 893 (Pa. Super. 2014) (Meyer Darragh). We agree.

      In Meyer Darragh, an attorney representing an estate in a wrongful

death action left his firm to join another, taking with him the wrongful death

litigation file. Meyer Darragh, 95 A.3d at 895. Thereafter, the attorney’s

new firm began to represent the estate.          Id.   The case settled, and a

contingency fee was paid to the new firm. Id. The attorney’s original firm

initiated litigation, claiming quantum meruit against both the estate and the

new firm, and the trial court entered a verdict in its favor against both

defendants. Id. at 896.

      On appeal, a panel of this Court stated:

      It is well-settled that a client may terminate his relation with an
      attorney at any time, notwithstanding a contract for fees, but if
      he does so, thus making the performance of the contract
      impossible, the attorney is not deprived of his right to recover on
      a quantum meruit a proper amount for the services he has
      rendered. Quantum meruit is an equitable remedy. It is defined

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     as ‘as much as deserved’ and measures compensation under an
     implied contract to pay compensation as reasonable value of
     services rendered. Quantum meruit and ‘reasonable value of
     services’ are virtually interchangeable phrases.

     There is no Pennsylvania appellate court case holding that an
     attorney who initially represents a client and is dismissed can
     maintain a quantum meruit action against the attorney who
     ultimately settles the case. Rather, the initial attorney has to
     proceed against the client.

Id. (emphasis added) (citations omitted; internal quotation marks and other

punctuation omitted); see also Mager v. Bultena, 797 A.2d 948 (Pa.

Super. 2002), appeal denied, 814 A.2d 678 (Pa. 2002); Fowkes v.

Shoemaker, 661 A.2d 877 (Pa. Super. 1995), appeal denied, 674 A.2d

1072 (Pa. 1996); Styer v. Hugo, 619 A.2d 347 (Pa. Super. 1993), affirmed,

637 A.2d 276 (Pa. 1994).      The panel concluded, “Until our [S]upreme

[C]ourt holds otherwise, we will not recognize a claim for quantum meruit by

a former attorney against a subsequent attorney.”      Meyer Darragh, 95

A.3d at 898. The panel then vacated the judgment entered. Id. at 895.

     Based upon this authority, we discern no legal basis for Appellee’s

claim.   Moreover, Appellee’s arguments acknowledge this to be so.      See,

e.g., Appellee’s Brief, at 7 (suggesting that the current state of the law in

Pennsylvania is “neither logical nor fair”); at 8 (“The court should adopt a

restitutionary approach to this type of case and allow a predecessor attorney

in a contingent fee case to proceed against his successor.”) (emphasis

added); at 17 (citing in support, Ruby v. Abington Mem’l Hosp., 50 A.3d

128 (Pa. Super. 2012), a case in which this Court analyzed an employment

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contract dispute, not a quantum meruit action, between an attorney and his

former firm, see Ruby, 50 A.3d at 130). Accordingly, we reverse the order

of the trial court.

      Order reversed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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