J-A21043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL KACHMAR,                           :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                   Appellant               :
                                           :
              v.                           :
                                           :
WILLIAM J. LITVIN, ESQ. d/b/a LAW          :   No. 2794 EDA 2015
OFFICES OF SALING AND LITVIN,              :

             Appeal from the Judgment entered September 10, 2015
                in the Court of Common Pleas of Chester County,
                        Civil Division, No(s): 2013-06092

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.                       FILED NOVEMBER 17, 2016

      Michael Kachmar (“Kachmar”) appeals from the Judgment entered

against him and in favor of William J. Litvin, Esquire, d/b/a Law Offices of

Saling and Litvin (collectively, “Litvin”), in this professional negligence case.

We affirm.

      In its October 22, 2015 Opinion, the trial court set forth the factual

and procedural history underlying the instant appeal, which we adopt as

though fully restated herein. See Trial Court Opinion, 10/22/15, at 1-3; see

also Trial Court Opinion, 3/18/15, at 1-4.

      Following a bench trial, the trial court found in favor of Litvin and

against Kachmar.     Kachmar filed post-trial Motions, which the trial court

denied. Thereafter, Kachmar filed the instant timely appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.
J-A21043-16


      Kachmar presents the following claims for our review:

      (1) Did the trial court commit an error of law in granting Litvin’s
      Motion for Bifurcation, further remanding the “case-within-the-
      case” to a non-jury trial?

      (2) Did the [trial court] commit an error of law in holding [that]
      Muhammad [v. Strassburger, et al., 587 A.2d 1346 (Pa.
      1991),] per se[,] precluded a verdict in favor of Kachmar at
      trial?

Brief for Appellant at 4.

      Kachmar first claims that the trial court erred when it granted Litvin’s

Motion for Bifurcation, thereby allowing the “case-within-the-case”1 to

proceed without a jury. Id. at 17. Kachmar contends that at all times, he

demanded a jury trial, and that the bifurcation and non-jury trial of the

“case-within-the-case” violated his rights under the Pennsylvania and United

States Constitutions, as well as Pa.R.C.P. 1007.1(c)(1).    Id.   According to

Kachmar, “the liability of Litvin (which is separate and distinct from the

case-within-the-case proof) necessarily became part of the trial.” Id. at 18.

Kachmar contends that “the non-jury trial confused Litvin’s liability with the

Order of bifurcation[,] vis-à-vis ‘case-within-the-case’ proofs—with damages




1
  As we will discuss infra, 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, and that the attorney he hired was
negligent in prosecuting or defending that underlying case (often referred to
as proving a “case within a case”). Poole v. Workers’ Comp. Appeal Bd.
(Warehouse Club, Inc.), 810 A.2d 1182, 1184 (Pa. 2002).




                                  -2-
J-A21043-16


being relatively simplistic as mathematical (i.e., the underlying settlement

amount to Christine Kachmar).” Id.

      Under Pa.R.C.P. 213(b), the decision whether to bifurcate a trial is

within the trial court’s discretion.    Gallagher v. Pa. Liquor Control Bd.,

883 A.2d 550, 557 (Pa. 2007).          Accordingly, we review the trial court’s

ruling for an abuse of discretion. Id.

      In its Opinion, the trial court addressed Kachmar’s challenge to the

bifurcation (and the resulting bench trial), and concluded that it lacks merit.

Trial Court Opinion, 10/22/15, at 9-10 (addressing bifurcation), 10-11

(addressing the propriety of a bench trial in the underlying case). We agree

with the sound reasoning of the trial court, as set forth in its Opinion, and

affirm on this basis.2 See id.

      Kachmar next claims that the trial court erred in holding that the

Pennsylvania Supreme Court’s holding in Muhammad precluded a verdict in

favor of Kachmar. Brief for Appellant at 9. Kachmar asserts that he “is not

attempting to second-guess his attorney’s settlement valuation.          On the

contrary, [he] contends strict settlement causative legal errors.” Id. at 20.

2
  In its Opinion, the trial court adopted, inter alia, the rationale set forth in
its February 13, 2015 Order granting bifurcation. In that Order, the trial
court stated the following:

      A review of the underlying divorce action reveals that [Christine]
      Kachmar did not petition the court for a jury trial on the issue of
      spousal support, nor did the court issue such a ruling regarding a
      jury trial on any matter in the underlying divorce action.

Trial Court Order, 2/13/15, at 1 n.1.


                                   -3-
J-A21043-16


Kachmar contends that there is a “negligence exception” to the Pennsylvania

Supreme Court’s holding in Muhammad.                Id.     Kachmar argues in the

alternative that Muhammad does not apply in this case. Id. According to

Kachmar, “the settlement at issue regarded the divorce litigation[,] not

Litvin’s   preparation    and   presentation   of     the    defective   postnuptial

agreement—two distinct proceedings (i.e., transactional v. litigation)—

necessarily distinguishing Muhammad’s rationale.” Id.

      “Our review of the trial court’s decision after a non-jury trial is limited

to determining whether the findings of the trial court are supported by the

competent evidence and whether the trial court committed error in the

application of law.”     Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa.

Super. 2004). It is not our role to pass on the credibility of witnesses, as

the trial court clearly is in the superior position to do so. Id.

      As our Supreme Court has explained,

      [a]n essential element to this cause of action is proof of actual
      loss[,] rather than a breach of a professional duty causing only
      nominal damages, speculative harm or the threat of future
      harm. [Rizzo v. Haines, 555 A.2d 58,] 68 [(Pa. 1989)].
      Damages are considered remote or speculative only if there is
      uncertainty concerning the identification of the existence of
      damages[,] rather than the ability to precisely calculate the
      amount or value of damages. Id. ….

      ***

      [The plaintiff] must initially establish by a preponderance of the
      evidence that he would have recovered a judgment in the
      underlying action …. 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


                                   -4-
J-A21043-16


     engaged to prosecute or defend the underlying action was
     negligent in the handling of the underlying action and that
     negligence was the proximate cause of the plaintiff’s loss since it
     prevented the plaintiff from being properly compensated for his
     loss.

Kituskie v. Corbman, 714 A.2d 1027, 1029-30 (Pa. 1998) (footnote

omitted).

     Here, the trial court determined that Christine Kachmar would not

have been successful in setting aside the post-nuptial agreement.          Trial

Court Opinion, 3/18/15, at 9, 11. In addition, the trial court observed that

Kachmar decided to settle the underlying litigation over the post-nuptial

agreement, and fails to argue fraudulent inducement to enter into the

settlement.   Id. at 9-11.   We agree with the sound reasoning of the trial

court, in resolving these issues, and affirm on the basis of its March 18,

2015 Opinion with regard to these claims. See id. at 9-11; see also Trial

Court Opinion, 10/22/15, at 6-9.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2016




                                   -5-
                                                                          Circulated 10/20/2016 04:03 PM




     MICHAEL KACHMAR                              IN THE COURT OF COMMON PLEAS

                                                  CHESTER COUNTY, PENNS.YLVANIA
                           VS.


     VV!LLIAM J. LITVIN, ESQUIRE d/b/a            NO. 13-06092
                                                                                       ..
                                                                                       r·.,

     LAW OFFICES OF SALING &
     LITVIN                                       CIVIL ACTION

     Matthew B. We1sberg, Esquire, on behalf of Plaintiff/Appellant
     Jeffrey B. Mccarron'- Esquire, on behalf of Defendants/Appellees


                            OPINION PURSUANT TO Pa.R.A.P. 1925


     I. PROCEDURAL SETTING

              This matter comes before this Court as a result of an appeal filed by Michael
                                                                                  :,
     Kachmar (hereinafter "Plaintiff') from the denial of Motion for Post-Trial Relief entered

     August 17, 2015. Plaintiff timely filed his appeal on September 2, 2015. By Order of

     September 3, 2015, the Court directed Plaintiff to prepare a Concise Statement of

     Errors Complained Of on Appeal.        The Concise Statement was filed on or about

     September 18, 2015. The matter is now ready for determination.

     II. .EbCTS

              According to the Amended Complaint, this civil action arises out of the

     representation by Defendant, William J. Litvin, Esquire, of Plaintiff in the preparation of

     a post-nuptial agreement and subsequent divorce.         Plaintiff alleges that Defendant

     committed legal" malpractice by failing to include a :release of spousal support clause in
                                                                                  ,,
     the post-nuptial agreement. Plaintiff was dissatisfied with the amount of property he

     ultimately transferred to his ex-wife, Mrs. Kachmar, in a subsequent                     property

     settlement agreement and claims that he was forced to settle for such amount as the



Ii
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         result of the absence of the spousal support waiver in the post-nuptial                agreement.

         Plaintiff asserted professional       negligence, breachof contract/covenantof          good faith

         and fair dealing, and breach of fiduciary duty claims, · He eventually :withdrew the

         breach of fiduciary duty .clalm.

                  Defendants filed- Preliminary Objections tothe Amended Complaint on or about

         April 2, 2014, seeking to strike the claims for attorney's fees and emotional distress

         damages.       This Court sustained the Preliminary Objectionsby          Ordered dated April 30,

         2014.

                  At a later stage in the proceedings, Defendants moved for Summary Judgment,

         raising an argument that Plaintiff's claims were barred as a matter of law by the

         Superior Court's decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod,

         and Gutnick, 587 A.2d 1346 (Pa. 1991),         rehearing denied, 598 A.2d 27 (1991).           This

         Court denied       the. Defendants'     Motion for Summary         Judgment    by Order entered

         September 23, 2014, without opinion.

                  Defendants    subsequently     filed a motion   in   llmine seeking bifurcation of this

         action   on   the basis that in the underlying family    cburt   matter, Plaintiff ~;s not entitled

         to a jury trial     as of right.      For purposes   of resolving the "case within a case"

         requirement of this legal malpractice action, this Court granted Defendants' motion in

         limine, thereby bifurcating the action and granting a bench trial on the sole issue of

         whether the underlying· petition would have been successful.

                  A bench trial was heard on the underlying Petition to Set Aside ori February '17,

         2015.     Following trial, the parties were permitted to submit proposed findings of fact

j    j   and conclusions of law.       Thereafter, on March 18, 2015, this Court issued a Decision
I
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;!                                                       2
I
         pursuant to Pa.R.C.P.         1038 in favor of Defendants,      which is hereby incorporated

         herein and attached hereto for ease of reference. . .

                    On March 30,. 2015, Plai,ntiff filed a motion for post-trial relief, seeking judgment

         in favor of Plaintiff or, in the alternative, a new trial. As a basis for the· request for a

         new trial, Plaintiff claimed he was harmed by this Court's ruling which prohibited him

         from offering evidence of his increased risk of harm.            Plaintiff also argued that the

         Court erred , in. applying       ft(/uhammad to bar his claims . after previously       denying

         Defendants' Motion for Summary Judgment on the issue. · Plaintiff additionally claimed

         that this Court erred in bifurcating the trial so that the issue of Mrs. Kachmar's success

         on the Petition to Set Aside was heard at a bench trial. Finally, Plaintiff argued that the

         evidence presented at trial supported a verdict in his favor and that the weight of the

         evidence was contrary to this Court's verdict in favor of Defendant.            By Order dated
                                                                                          -
         August 17, 2015, this Court denied Plaintiffs        post-trial motions.   It is from this Order

         that Plaintiff now appeals.

                    Plaintiffs Concise Statement of Matters Complained        Of on Appeal contains 13

         allegations     of error by this Court, which are summarized           into four categories. as

         follows:

                    1:     Did theCourt err in entering judgment against Plaintiff?

                    2.     Did the Court err in holding that Muhammad          applied to bar Plaintiffs

         legal malpractice action?

                    3.     Did the Court err in bifurcating the "case within a case" element of

         Plaintiffs legal malpractice action?

                    4.     Did the Court err in holding a bench trial on the issue of the "case wfthin
II
j    I                                                    3
; I
a case" in spite of Plaintiffs jury demand?

Ill. ISSUES

        A.        Whether judgment.should           have been :entered in. favor of Defendants.

        B.        Whether Muhammad applied to bar Plaintiff's legal malpractice action.

        C.        Whether bifurcation of the "case within a case" was proper.

         D.       Whether a bench trial was properly held on the issue of th_? "case within

                  a case".

JV. HOLDINGS

        A.        Yes, judgment was properly entered in favor of Defendants.

        B.        Yes, Muhammad is good                 law that   applied      to bar Plaintiffs   legal
                  malpractice action.

        C.        Yes, bifurcation of the "case within a case" was proper.

        D.        Yes, a bench trial . was proper on the issue of the "case within. a case"


V. RA TIO NALE

        A. Standard of Review

        This appeal arises from the denial of Plaintiff's post-trial relief seeking judgment

in   Plaintiffs    favor     or,   in   the   alternative,   a   new   trial.      When     reviewing   a

trial court's decision in a non-jury trial, the appellate court must determine whether the

findings of the trial court are supported by competent evidence and whether the trial

judge committed error 'in the application of law. In a bench trial, the trial judge acts as

fact-finder   and has the authority to make credibility determinations                    and to resolve

conflicts in evidence.         See, Ruthreutt, Inc. v. Ravin, Inc., 914 A.2d 880 (Pa. Super.

2006). Consequently, the trial judge's findings made after a bench trial must be given



                                                       4
the same weight and effect as a jury verdict and will not be disturbed on appeal unless

they are not supported by competent evidence in the record.         See, Levitt v. Patrick,

976 A.2d 581 (Pa. Su per. 2009); Stonehedge Square Ltd. v. Movie Merchants, Inc.,

685 A.2d 1019, 1022 (Pa. Super. 1996), appeal allowed in part, 696 A.2d 805 (1997),

affirmed, 715 A.2d 1082 (1998) (citations omitted).· It is not the Superior Court's role to

pass on the credibility of witnesses, as the trial court clearly is in the superior position

to do so. See,.Komfeld v. At!. Fin: Fed., 856 A.2d 170, 173 (Pa. Super. -2004), appeal

denied, 871 A.2d 192 (Pa. 2005) (citation and internal quotation marks omitted).

         A judgment notwithstanding the verdict may be entered on two bases: (1) where

the movant is entitled to judgment as a matter of law and/or (2) where the evidence is

such that no two reasonable persons could disagree the verdict should have been

rendered for the movant.      See, Griffin v University of Pittsburgh Medical Center-

Braddock Hosp., 950 A.2d 996, 999 (Pa. Super. 2008) (quoting Buckley v. Exodus

Transit & Sioreqe Corp., 744 A.2d 298, 304-305 (Pa. Super. 1999)) (citations omitted).

On the first basis, a court must review the record and conclude that, even with all

factual inferences decided adverse to the movant, the law nonetheless required a

verdict in rnovant's favor. As to the second basis, a court must review the evidentiary

record and conclude that the evidence is such that a verdict for the movant is beyond

peradventure. See, Eichman v. McKeon, 824 A.2d 305 (Pa. Super. 2003). Judgment

notwithstanding the verdict is not to be entered where the evidence is conflicting on a

material fact.   See, Lilley v. Johns-Manville Corp., 596 A.2d 203, 207 (Pa. Super.

1991).

         Trial courts have broad discretion to grant or deny a new trial         It is well-



                                             5
       established    law that, absent a clear abuse of discretion by the trial court, appellate

       courts· must not interfere with the trial court's authority to grant or deny                     a   new trial.

       Because of the superior position of the trial judge as fact-finder to assess· the credibility

       of witnesses     and resolve conflicts in evidence, the trial court's authority to grant or

       deny a post-trial motion foltowing a bench trial "is enhanced, and the appellate court's

       authority to override the trial· court's decision             is proportionately      diminished."        See,

       Spang & Co. v. United States Steel Corp., 545 A.2d 861, 866 (Pa. 1988). A new trial

       may be granted only when the verdict is so contrary to the evidence as to shock one's

       sense of justice.       See, Tucker v. Bensalem Twp. Sch. Dist., 987 A.2d 198 (Pa.

       Cmwlth. 2009).

                 B. Discussion

                            1. .JudgJJ1~nt wa§._prope.[!:it entereQ . . !.nJa\J:pr of Defend9.o:t§.,.

                 Upon review and consideration          of the Concise Statement,           my findings of fact

       and conclusions of law in support of my decision in favor of Defendants is set forth at

       length in my Decision Pursuant to Pa.R.C.P. 1038 of March 18, 2015, and I have little

       to add but the following for the reviewing court's consideration.

                 Sitting as the fact-finder during a bench trial on the issue of the "case within a
                                                                                                  ,,
       case", this Court determined           that the Motion to Set Aside would not have been

       successful, in whole or in part, because the allegations of Mrs. Kachrnar's Petition to

       Set Aside were contradicted by the testimony of both Mrs. Kachmar and Plaintiff at

       trial.    See, Decision of March 18, 2015 at pgs. 5-6. Mrs. Kachmar testified that she

       consulted with an attorney friend of hers who reviewed the agreement.                      See, Id.      at pg.

!i     6.
                Upon such   review, Mrs.      Kachmar was apparently            satisfied    and executed the



! ,.                                                        6
· I
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agreement.        There was no suggestion by Mrs. Kachmar of fraud, misrepresentation                             or

                                                                 1
duress.      See, Decision of March 18, 2015 at pg. 9.

          Plaintiff further argues that this Court erred by not allowing him to present

evidence that the Motion to Set Aside did not expose him to a risk of harm which he
                                                                                                 '
mttigated       through     settlement.       However,     courts         of this     Commonwealth             have

determined        that they will not apply an increased               risk of harm standard              to legal

malpractice actions.         See, Myers v. Robert Lewis Seigle, P. C., 751 A.2d 1182, 1185

(Pa. Super.       2000); see also, Gans v. Gray, 612 F.Supp. 608, 614 (E.D. Pa.1985); see

also, ASTech Int'/, LLC v. Husick, 676 F. Supp. 2d 389, 401 (E.D. Pa. 2009).                                   Thus,

Plaintiffs assertion is wholly lacking merit.

          Simply put, Plaintiff did not meet his burden of proving the case within the case

by a preponderance            of the evidence.       As this is the threshold            issue in any legal

malpractice case, Plaintiff was not permitted to move forward in attempting to prove

the remaining         elements     of his claim.     See, Pa.R.C.P.           224.     Any further analysis

required      by the reviewing       court is set forth in my Decision                 of March        18, 2015.

Judgment was properly entered in favor of Defendants.                           Plaintiffs post-trial motion

clearly      failed   to    meet   the    criteria   necessary       to     entitle   him   to       a judgment

notvvithstanding the verdict or, in the alternative, a new trial. This Court's decision was

supported       by competent evidence based upon the credibility of the witnesses and the

resolution      of any conflicting evidence which should                  not be disturbed.          I, therefore,

respectfully request that my ruling be affirmed.

                       2.    Muhammad applied to bar Plaintiff's legal malpractice                   action.

          Ultimately, the Petition to Set Aside was never adjudicated                       because Plaintiff



                                                       7
         and Mrs. Kachmar reached a settlement                    of the matter.    See, Decision of March 18,

         2015 at pg. 10.     Settlement of the underlying matter in a legal malpractice action raises

         the question of whether a party is permitted, as a matter of law, to pursue such a claim

         against    his   attorney.     The        Supreme       Court    case,    Muhammad       v.   Strassburger,

         McKenna, Messer, Shilobob & Gutnick, 587 A.2d 1346 (Pa. 1991 ), cert. denied, 502

         U.S. 867 (1991 ), is instructive on this issue.              The Muhammad Court held that a client

         cannot maintain a legal malpractice              action against an attorney where theclient agreed

         to settlement of his or her claim in the absence of proof that the settlement was

         fraudulently     induced.    See,   ta.        Here, as stated in my Decision of March 18, 2015,

         there was no allegation that Plaintiff entered into the settlement agreement with Mrs.

         Kachmar      based upon a fraudulent               inducement by Defendants.            See, Decision of

         March 18, 2015at pg. 10. Indeed, Plaintiff indicated that he chose to settle the matter

         to put the matter behind him and move beyond the domestic relations battle with his

         former spouse. See, Id.       at pg.      7.

                   This Court's determination            following trial that Plaintiffs    claims were barred by

         Muhammed is not contrary to the law of the case doctrine.                         Defendants'    Preliminary

         Objections were not adjudicated                 on this issue.    The Order of September 23, 2014

         denying Defendants' Motion for Summary Judgment was issued without any opinion or

         basis for the ruling.        At trial, this Court is not bound by an earlier ruling denying

         summary judgment on an issue. The law of the case doctrine simply prohibits a court

         from granting relief that directly contradicts previous court holdings.                       See, Riccio v.

         American Republic Ins. Co., 705 A.2d 422 (Pa. 1997).                       However, this doctrine does

         not typically apply where the motions are of a different type.                        See, Id. at 425:-26.



                                                                  8
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1    !
Because this Court's Order denying Defendants' Motion for Summary Judgment was

issued
 .
       at a different . stage of litigation than this Court's
                                                       ,.     decision and opimon
                                                                              .   following

trial, the law of the case doctrine does not apply.

       I have _nothing additional with which to . supplement the legal analysis of
                             .                        ;                     . .

Muhammad and its applicability to the facts; therefore, I defer to my Decision of March

18, 2015.    There was no error of law in barring Plaintiffs legal· malpractice claims
                                                                                  '

stemming from the settlement of the Petition to Set Aside and other equitable

distribution issues in the underlying matter. Accordingly, I respectfully request that the

Superior Court affirm my ruling.

                  3. Bifurcation of the "case within a case" was proper.

       The decision to bifurcate the underlying "case within a case" was addressed in

my Order of February 12, 2015, which I hereby incorporate by reference and attach

hereto for ease of reference.

       Bifurcation of tria! issues is permitted by Pennsylvania case law and the Rules

of Civil Procedure.   See, Pa. R. C.P. 213(a). The trial court may order bifurcation of

trial issues in furtherance of convenience or to avoid prejudice.        See, Geiswite v.

Warner, 21    O&C 4th 473, 476 (C.P. Clinton Cty, 1993); see also, Coleman v.

Philadelphia Newspapers, Inc., 570 A.2d 552, 555 (Pa. Super. 1990). The decision to

bifurcate is discretionary. See, Wolk   v.   Wolk, 464 A2d 1359, 1362 (Pa. Super. 1983).

The court's decision to bifurcate a trial shall not be disturbed absent an abuse of

discretion. See, Sacco v. City of Scranton, 540A.2d 1370, 1372 (Pa. Cmw!th.1988).

       It is well-settled law in this Commonwealth that to prevail on a legal malpractice

rction, the plaintiff must first successfully litigate the "case within the case." See,



                                               9
Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998).          Only after the plaintiff proves that he

would have lost in the underlying         matter may the plaintiff proceed on the other

elements     of his claim, i.e., proof that the attorney's negligence was the proximate

cause of the plaintiffs loss.      See, Id.    Here, Plaintiff was required to litigate to a

conclusion the Petition to Set Aside that was underlying his legal malpractice claim. In

light of the clear delineation of these matters for trial and the prerequisite that Plaintiff

first demonstrate that he would have prevailed in the underlying matter, bifurcation of

this action promoted the interests of judicial economy and avoided any unnecessary

prejudice.     See, Pa.R.C.P.    213(a) and 224 (the court may compel the plaintiff to

produce all evidence     upon the question of the defendant's       liability before calling any

witness to testify solely to the extent of the injury or damages).        Additionally,   Plaintiff

has not claimed that this Court abused its discretion in so ordering bifurcation; rather,

the Concise Statement suggests that the bifurcation was an error of law, which is not a

basis for disturb this Court's decision.      For these reasons,    I respectfully request that

the Superior Court affirm my ruling.

                   4. }2§_t]Ch trial on the issu~ of the "case w[ttlLo a case" was gIQQ§.f..

        The decision to hold a non-jury trial on the issue of the underlying "case within a

case"   was    addressed    in my Order       of February    12,   2015, which     I previously

incorporated    by reference and have attached hereto for ease of reference.               In the

Order, I noted that the underlying matter involving the Petition to Set Aside filed by

Mrs. Kachmar could not properly go before a jury.           See, 23 Pa. C. S.A.· 3322.      Upon

investigation, this Court discovered that neither Mrs. Kachmar nor Plaintiff. at any point

in the underlying proceedings, petitioned the family court for the equitable distribution



                                               10
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    1.
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         matters to be submitted for a jury trial.         Moreover, at no point in the underlying

         proceedings did the family court issue a ruling regarding either party's entitled to a jury

         on this matter.   For these reasons, I determined that Plaintiff was not entitled to a jury

         on this matter in the prosecution of his legal malpractice action.

                 In sum, whether Mrs. Kachmar would have prevailed on her Petition to Set

         Aside was for determination     by a trial judge, not a jury.   Plaintiff is not permitted to

         maneuver this case so that a jury decides the "case within a case" which would have

         been adjudicated by a judge had the matter not been settled.

                 As there was no abuse of discretion in this Court's determination that the "case

         within a case" was to be heard in a non-jury trial, I respectfully         request that the

         Superior Court affirm my rullng.

                                                             BY THE COURT:




                                                                                           J.




             1
                 Plaintiff's Concise Statement raises the argument that that this Court erred by
         disregarding Plaintiffs expert's testimony. This matter was not raised by Plaintiffs
         post-trial motion and, therefore, the issue is deemed waived for purposes of this
         appeal.


                                                      11
