J-A01044-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

PATRICIA SKONIECZNY,                       :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellant                :
                                           :
                    v.                     :
                                           :
DANIEL W. COOPER, COOPER AND               :
LEPORE,                                    :
                                           :
                  Appellees                :    No. 1166 WDA 2016

               Appeal from the Judgment Entered July 22, 2016,
              in the Court of Common Pleas of Allegheny County,
                     Civil Division at No(s): GD 01-018372

BEFORE:     BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED APRIL 28, 2017

      Patricia Skonieczny appeals pro se from the judgment entered on July

22, 2016, after the trial court directed a verdict in favor of Daniel W. Cooper,

Esquire, and his law firm, Cooper and Lepore, LLC (collectively, Appellees),

in this legal malpractice action. Upon review, we affirm.

      We summarize the relevant factual and procedural history of this case

as follows. In 1969, Skonieczny was hired by USAir1 as a flight attendant.

Skonieczny‟s “active service career was studded with several intervals due to

her having a large family and being pregnant a number of times because of

her religious belief.” Amended Complaint, 5/25/2012, at ¶ 5.        During this

1
  At the time she was hired, the airline was called Allegheny Airlines. That
airline eventually became USAir, and then USAirways. Because the airline
was called USAir for the time period relevant to the issues in this case, we
will refer to it as USAir.


*Retired Senior Judge assigned to the Superior Court.
J-A01044-17


time period, USAir had a policy governing the weight of flight attendants

when returning from maternity leave.      Under the policy, flight attendants

were weighed upon returning to work. “If the flight attendant exceeded the

required weight pursuant to USAir‟s weight chart, the flight attendant

remained on active status … but was required to lose a certain amount of

weight every three months until the flight attendant met the required goal.”

Id. at ¶ 8. “If the flight attendant was unable to lose the required weight

within the time frame allotted, USAir‟s policy was to place the flight

attendant on weight suspension.” Id. at ¶ 9.

      In October 1990, after Skonieczny gave birth to her eighth child, she

was placed on weight suspension status upon returning to work. Unable to

reach the weight goal, Skonieczny remained on weight suspension status in

December 1990.      While on this weight suspension, Skonieczny became

pregnant with her ninth child. On May 21, 1992, Skonieczny was removed

from weight suspension status and placed on maternity leave status.2

Skonieczny‟s ninth child was born on November 3, 1992, and she was

scheduled to return to work on April 28, 1993. She was immediately placed

on weight suspension status.    She remained on weight suspension status

until March 3, 1994, when she notified USAir she was pregnant with her

tenth child. From March 3, 1994 until her expected due date, October 10,

2
  “Due to complications during [that] pregnancy, [Skonieczny] applied for
and received a disability benefit from USAir as permitted in USAir‟s Flight
Attendant Maternity Policy [(Maternity Policy)] and pursuant to the Collective
Bargaining Agreement [(CBA)].” Amended Complaint, 5/25/2012, at ¶ 19.

                                    -2-
J-A01044-17


1994, Skonieczny‟s status was changed to maternity leave.                Sadly,

Skonieczny miscarried on April 3, 1994. Pursuant to the CBA, Skonieczny

was still entitled to six months of maternity leave.

      Meanwhile, the Equal Opportunity Employment Commission (EEOC)

had filed a class-action lawsuit against USAir in the U.S. District Court for

the Middle District of North Carolina (EEOC v. USAir, Inc., C.A. No.

6:92CV00272 (M.D.N.C.)) alleging USAir was discriminating against flight

attendants “on the basis of sex and age in the application of its weight

policy.” Amended Complaint, 5/25/2012, at ¶ 30.        The lawsuit settled on

March 23, 1994, and Skonieczny learned about this lawsuit when she

received a letter in the fall of 1994 requiring her to sign a release. Id. at

Exhibit 4.   As part of that lawsuit, USAir agreed to change its weight policy

to a performance-based policy in order to comply with Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII).

      Skonieczny was unable to return to work in the fall of 1994, and she

informed USAir she was unable “to medically take the Performance Test” as

requested by USAir. Id. at ¶ 53. Pursuant to the EEOC lawsuit settlement

agreement, Skonieczny was placed on weight suspension status as of

October 9, 1994. Skonieczny was informed that she would remain on weight

suspension until she could complete the performance test.         Skonieczny

passed the performance test in early 1995, but was still unable to return to

work due to medical issues she was experiencing.



                                     -3-
J-A01044-17


      Skonieczny formally applied to USAir for long-term disability (LTD)

benefits on May 5, 1995, stating that “she had been disabled due to „panic

disorder with agoraphobia and depression disorder [not otherwise specified

(NOS)]‟ since September 1994.” U.S. District Court Opinion in C.A. No. 97-

2357, 11/18/1998, at 5.      On October 3, 1995, USAir sent a letter to

Skoneiczny conceding that she was disabled, but concluded she was entitled

to zero dollars in LTD benefits. USAir reached this conclusion based on the

section 22.F.3 of the USAir Flight Attendant Agreement, which provided that

the “monthly [LTD] benefit shall be based on the previous year‟s gross

salary divided by the number of months actually worked.” Id. Skonieczny

did not earn any salary in 1994 due to her being on maternity leave; thus,

according to USAir, she was not eligible for any disability compensation even

though she was disabled.

      Thereafter, Skonieczny, through her union, the Association of Flight

Attendants (AFA), filed a grievance against USAir. 3 Additionally, on April 25,

1996, Skonieczny pro se notified the EEOC of discrimination claims against

USAir.   The EEOC conducted a telephone inquiry, and sent a charge of

discrimination form to Skonieczny.       Skonieczny filled out, signed, and

returned the form. Skonieczny checked the box on the form indicating that

she believed USAir was violating her rights pursuant to the Americans with



3
   Counsel from the AFA represented Skonieczny with respect to the
grievance process.

                                     -4-
J-A01044-17


Disability Act of 1990 (ADA).       On September 30, 1997, the EEOC sent

Skonieczny a right-to-sue letter.

      In October 1997, Skonieczny first consulted with Appellees about

these claims.   On December 29, 1997, Appellees filed a lawsuit against

USAir in the U.S. District Court for the Western District of Pennsylvania on

Skonieczny‟s behalf (C.A. No. 97-2357).        In her complaint, Skoneiczny

alleged claims for violations of Title VII, the ADA, and the Pennsylvania

Human Relations Act, 43 P.S. § 951 et seq. (PHRA). In addition, Appellees

sent a letter to Skonieczny, which stated the following.

             With regard to the merits of this matter, we do have
      significant obstacles for success. Obviously, if you win the
      arbitration case based on the union contract and past practice,
      this case is moot. You cannot collect more than the long term
      disability benefits. If you lose the arbitration, we are left with a
      “discrimination” argument instead of the union contract.
      However, I am concerned because the only charge you filed with
      the EEOC is … [an ADA] charge. Quite frankly, this is not an
      ADA case. In fact, [USAir] admits you are disabled. If anything,
      this is a sex discrimination or retaliation case under Title VII of
      the Civil Rights Act. Unfortunately, no charge was ever filed with
      the EEOC on these issues.

            In any event, we will see what develops.

Amended Complaint, 5/25/2012, at Exhibit 44.

      On February 25, 1998, Skonieczny received a letter from the AFA

attorney informing her that her grievance was “without legal merit” and that

it would withdraw “the case from arbitration before the Flight Attendant

Retirement Board.” Id. at Exhibit 26. Skonieczny informed Appellees of this

development.

                                      -5-
J-A01044-17


       On November 18, 1998, the district court ruled on USAir‟s motion to

dismiss, and dismissed all of Skonieczny‟s claims except for those under Title

VII and the PHRA where the claims involved alleged discrimination on the

basis of her gender (sex discrimination claims).          USAir then moved for

summary judgment with respect to the sex discrimination claims. Appellees,

on behalf of Skonieczny, did not file a response to that motion.

       On September 15, 1999, the district court granted summary judgment

in   favor   of   USAir,   holding   that   Skonieczny   failed   to   exhaust   her

administrative remedies.       Specifically, it concluded that “the actions of

[USAir] that underlie [Skonieczny‟s] Title VII sex discrimination claim are

neither fairly within the scope of [Skonieczny‟s] EEOC charge nor within the

scope of the EEOC‟s investigation arising therefrom.” U.S. District Court

Opinion in C.A. No. 97-2357, 11/18/1998, at 8.           Additionally, the district

court granted summary judgment with respect to her PHRA-based sex

discrimination claims because she never filed a charge with the PHRC to

exhaust her administrative remedies.

       On September 13, 2001, Skonieczny pro se filed a praecipe for writ of

summons against Appellees. On September 15, 2003, Skonieczny, through

counsel, filed a complaint against Appellees which included claims sounding

in legal malpractice.4


4
  “[A] legal malpractice action in Pennsylvania requires the plaintiff to prove
that [s]he had a viable cause of action against the party [s]he wished to sue
in the underlying case and that the attorney [s]he hired was negligent in

                                        -6-
J-A01044-17


     After years of litigation, including an appeal to this Court, 5 Appellees

filed an answer and new matter to Skonieczny‟s amended complaint on

November 29, 2012. A jury trial commenced on March 28, 2016.

     At trial, Skonieczny presented Attorney John Quinn as her expert to

testify about how Appellees‟ representation of Skonieczny in her efforts to

pursue LTD benefits fell below acceptable professional standards.      Quinn

testified about three areas he researched with respect to Appellees‟

representation of Skonieczny. First, Quinn assessed Appellees‟ “handling of

the federal court action which [] Cooper filed on [Skonieczny‟s] behalf in

response to a right-to-sue letter that [] Skonieczny had received.” N.T.,

3/30/2016, at 328.    Quinn also assessed whether “there was any other

action that could be taken relative to her LTD plan that was mired in the

administrative process with the flight attendant union versus USAir.” Id. at

328-29.   Finally, and according to Quinn, least important, Quinn assessed

“whether there was any breach of duty of fair representation on the part of

the union that may have been actionable and upon which [] Cooper should

have acted or steered [] Skonieczny to other counsel.” Id. at 329.

     Quinn concluded that Appellees‟ representation in all three areas “fell

below accepted standards.” Id.      According to Quinn, Skonieczny‟s ADA

prosecuting or defending that underlying case (often referred to as proving a
„case within a case.‟).” Myers v. Robert Lewis Seigle, P.C., 751 A.2d
1182, 1184 (Pa. Super. 2000).
5
  The relevant details surrounding this stage of the proceedings will be
discussed infra.

                                    -7-
J-A01044-17


claims in district court could have been successful had Appellees raised

certain arguments with respect to a Third Circuit decision. With respect to

Skonieczny‟s claims relative to the LTD plan, Quinn opined that Appellees

should have filed an action pursuant to the Employee Retirement Income

Secured Act (ERISA).6 According to Quinn, “Cooper should have recognized

that there really had been no final decision by an administrator on this claim.

The Retirement Board never made a decision because … [the union] yanked

the claim from consideration.” Id. at 336. Appellees either should have filed

this claim or “advise[d] [] Skonieczny of her right to file it.” Id. at 337. In

addition, Quinn testified that the fact that the “same Plan had been

interpreted before to allow her to use her last year of real earnings in

determining what her LTD benefit would be” would have permitted it to be

interpreted in that manner again. Id. at 338.      Finally, Quinn opined that

Appellees‟ representation of Skonieczny fell below accepted standards with

respect to the fair representation claim because he did not advise her of the

relatively short statute of limitations of only six months to bring such a

claim. Id. at 342.

      In response, Appellees called Attorney Ernest B. Orsatti to testify as

their expert.   According to Orsatti, “any kind of ERISA lawsuit would have

been frivolous” under these circumstances. Id. at 514. He testified that in


6
 “ERISA is a comprehensive statute designed to promote the interests of
employees and their beneficiaries in employee benefit plans.” Barnett v.
SKF USA, Inc., 38 A.3d 770, 776 (Pa. 2012) (quotation marks omitted).

                                     -8-
J-A01044-17


order for Skonieczny to prevail on her ERISA claim, she would have had to

show that the “decision denying benefits was arbitrary” and this was not this

case in this matter. Id. at 512. With respect to the 1992 benefit decision,

Orsatti testified that “[j]ust because a fund makes a mistake or does

something once or twice, that doesn‟t give rise to an obligation on their part

to do that forever.” Id. at 515.            Additionally, Orsatti testified that

Skonieczny would not have prevailed on her ADA claim. Id. at 524. Finally,

he testified that Skonieczny would not have prevailed on her breach of fair

representation   claim.     Accordingly,    Orsatti    testified   that   Appellees‟

representation of Skonieczny fell within acceptable professional standards.

      After both Skonieczny and Appellees presented their cases, Appellees

moved for a directed verdict. The trial court offered the following.

      [I]t is this [c]ourt‟s opinion that in order to recover damages for
      a lawyer malpractice claim, [Skonieczny] must establish each of
      three elements. And those elements were: The employment of
      [Appellees] for a specific undertaking by that lawyer to furnish
      legal advice or assistance to [Skonieczny] and that [Appellees
      were] negligent in failing to possess and exercise the ordinary
      skill, knowledge, care, normally possessed and exercised by
      members in good standing in the legal profession, and such
      negligence caused [Skonieczny] to lose a cause of action on
      which [she] would have recovered judgment. This [c]ourt has
      determined that the third element was not met.

                                      ***

      I will dismiss this case and release the jury.

Id. at 605-606. In other words, the trial court concluded that Skonieczny

failed to convince the trial court that she would prevail on her “case within a



                                      -9-
J-A01044-17


case.” Myers, 751 A.2d at 1184. Thus, the trial court directed a verdict in

favor of Appellees and dismissed this case by entering a non-jury verdict.

        Skonieczny pro se filed post-trial motions, and on July 13, 2016, the

trial court denied post-trial relief. After the entry of judgment, Skonieczny

appealed.7     Both Skonieczny and the trial court complied with Pa.R.A.P.

1925.

        On appeal, Skonieczny first challenges two pre-trial orders concerning

preliminary objections.8 See Skonieczny‟s Brief at 2-16.          By way of

background, Skonieczny filed her complaint sounding in legal malpractice on

September 15, 2003. On November 18, 2003, Appellees filed a praceipe for

entry of judgment of non pros “based upon Skonieczny‟s failure to file a

certificate of merit within 60 days of filing her complaint pursuant to

Pa.R.C.P. 1042.3.” Skonieczny v. Cooper, 37 A.3d 1211, 1212 (Pa. Super.

2012).    The Prothonotary entered a judgment of non pros that day.


7
  Skonieczny filed three notices of appeal in this case, one for each of the
three orders she was challenging. On August 25, 2016, this Court sua
sponte dismissed two of the appeals as duplicative and consolidated the
issues as being preserved for appeal under the instant docket number.
8
  Arguably, Skonieczny has waived these issues by failing to include them in
her motion for post-trial relief. See Pa.R.Crim.P. 227.1(b)(1)-(2) (“[P]ost-
trial relief may not be granted unless the grounds therefor … were raised in
pre-trial proceedings [and] are specified in the motion. The motion shall
state how the grounds were asserted in pre-trial proceedings or at trial.
Grounds not specified are deemed waived unless leave is granted upon
cause shown to specify additional grounds.”). Appellees have not raised the
issue of waiver, and out of an abundance of caution, we address these
issues on the merits.


                                     - 10 -
J-A01044-17


      Skonieczny filed a petition to strike the judgment of non pros, and the

trial court denied that petition.   Skonieczny appealed to this Court.      On

February 12, 2012, this Court reversed the order of the trial court, holding

that because Skonieczny filed a praecipe for writ of summons in this case

prior to the enactment of Pa.R.C.P. 1042.3, she was not required to file a

certificate of merit with her complaint, even though the complaint was filed

after the enactment of the rule. See Skonieczny, 37 A.3d at 1214 (holding

that Skonieczny commenced this action within the meaning of the rule when

she filed her praecipe for writ of summons on September 13, 2001).

      After remand, on March 12, 2012, the parties entered into an

agreement providing that Appellees had until “March 29, 2012 to file an

answer or preliminary objections to [Skonieczny‟s] complaint.” Agreement

Under Rule 237.2, 3/12/2012 (unnecessary capitalization omitted).           On

March 28, 2012, Appellees filed preliminary objections.      Skonieczny then

filed preliminary objections to the preliminary objections arguing, in part,

that Appellees were not entitled to file a second set of preliminary

objections.9   On April 30, 2012, the trial court overruled the preliminary

objections to preliminary objections.     On the same day, the trial court


9
  Pa.R.C.P. 1028(b) provides that “[a]ll preliminary objections shall be raised
at one time.” According to Skonieczny, Appellees‟ praecipe for entry of
judgment of non pros was a preliminary objection; thus, Appellees should
not be permitted to file this second set of preliminary objections to the
extent that those preliminary objections could have been raised at the time
Appellees filed the praceipe for entry of judgment of non pros.


                                    - 11 -
J-A01044-17


granted the Appellees‟ preliminary objections in part.       On May 25, 2012,

Skonieczny filed an amended complaint.

      In this appeal, Skonieczny argues that her preliminary objections to

preliminary objections should have been sustained.             Specifically, she

contends that Appellees‟ filing of a praecipe for entry of judgment of non

pros is akin to the preliminary objection of “failure to conform to rule of

court … within the meaning of Pa.R.C.P. 1028(a)(2).” Skonieczny‟s Brief at

3-4. Thus, she suggests the preliminary objections filed after remand were

“[i]mpermissible serial preliminary objections” and the only preliminary

objections available to Appellees were those that could not have been raised

initially. Id. at 4, 11.    Skonieczny goes on to argue that these serial

preliminary objections were a “nullity.” Id. at 6. Accordingly, she suggests

that “judgment by default should have been appropriately entered.” Id. at

12-13.

             [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.

Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012).

      With respect to the relationship between praecipe to enter a judgment

of non pros for failure to file a certificate of merit and preliminary objections,

we have held that “the filing of preliminary objections is irrelevant when the

plaintiff has set forth a professional negligence claim and it is his duty to

                                     - 12 -
J-A01044-17


obtain a valid certificate of merit within sixty days of filing the complaint.”

Ditch v. Waynesboro Hosp., 917 A.2d 317, 325 (Pa. Super. 2007). Thus,

it is clear that the rules for a praecipe for entry of judgment of non pros and

the filing of preliminary objections are distinct and not dependent in any way

on one another.        Accordingly, even though this Court determined that

Appellees were not permitted to file a praceipe for entry of judgment of non

pros under these circumstances, we cannot agree that by doing so, they

waived their rights to file a set of preliminary objections.        Accordingly,

Skonieczny is not entitled to relief on this basis.

      In   addition,   Skonieczny   presents   an     argument   suggesting   her

constitutional rights were violated by the serial preliminary objections.

Skonieczny‟s Brief at 13.    This argument was not raised in the trial court.

Thus, it is waived. See Pa.R.A.P 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

      We now turn to Skonieczny‟s arguments with respect to the directed

verdict entered in favor of Appellees. See Skonieczny‟s Brief at 18-35. At

this juncture, Skonieczny has voluntarily narrowed her issues on appeal to

those related to her ERISA claim. See id at 19 (“[Skonieczny] has

attempted to narrow the issue on appeal to her ERISA claim, not because

she could not have proved the many complex convoluted facets of the

underlying federal case but to simplify matters and reach the heart of the

issue.”). We consider these issues mindful of the following.



                                      - 13 -
J-A01044-17


     In reviewing a trial court‟s decision to direct a verdict in favor of
     a defendant, we must view the evidence presented in the light
     most favorable to plaintiff and determine whether plaintiff failed
     to prove his case as a matter of law. If a jury could have
     reasonably concluded on the basis of the evidence and all
     reasonable inferences therefrom that liability should rest with
     the appellee, then the decision to direct a verdict must be
     reversed. In examining the trial court‟s determination to direct
     verdict, our standard of review is plenary, as it is with any
     review of questions of law.

Riley v. Warren Mfg., Inc., 688 A.2d 221, 224 (Pa. Super. 1997) (citations

omitted).

     In considering whether Skonieczny had a viable ERISA claim, we bear

in mind the following. “Section 502(a)(1)(B) of ERISA allows a participant to

bring a claim to recover benefits due to him under the terms of the plan. 29

U.S.C. § 1132(a)(1)(B).” Miller v. Am. Airlines, Inc., 632 F.3d 837, 845

(3d Cir. 2011).

     Courts must review an ERISA administrator‟s actions de novo
     unless the benefit plan gives the administrator or fiduciary
     discretionary authority to determine eligibility for benefits or to
     construe the terms of the plan, in which case review is under the
     arbitrary and capricious standard. The key, then, lies in
     determining whether a plan provides an administrator with such
     discretion.

Evans v. Sodexho, 946 A.2d 733, 744 (Pa. Super. 2008) (internal

quotation marks omitted). Here, all parties agree that the LTD benefit plan

at issue gave the benefits administrator discretionary authority.            “An

administrator‟s decision is arbitrary and capricious if it is without reason,

unsupported by substantial evidence or erroneous as a matter of law.”

Miller, 632 F.3d at 845 (internal quotation marks omitted).

                                    - 14 -
J-A01044-17


      In concluding that Skonieczny was entitled to zero dollars for her LTD

benefit, the letter sent to Skonieczny by benefits administrator, Janet Fields,

provided the following:

      Section 22.F.3 of the USAir Flight Attendant Agreement states,
      “The monthly benefit shall be based on the previous year‟s gross
      salary divided by the number of months actually worked.”
      Therefore, since you have not earned any salary in 1994 you are
      not eligible to receive any [LTD] compensation.

Amended Complaint, 5/25/2012, at Exhibit 13.10

      According to Skonieczny, the language “previous year‟s gross salary”

is defined in the LTD plan. She contends that language required USAir “to

use a participant‟s W-2 in the participant‟s preceding tax year which is the

participant‟s last active year.” Skonieczny‟s Brief at 34 (unnecessary

capitalization omitted). Thus, Skonieczny suggests the previous year as it

applied to her, was the last year in which she was actively earning a salary.

Accordingly, Skonieczny contends that the decision of Janet Fields not to

apply that year was arbitrary and capricious.

      At trial, Skonieczny testified as follows.

            My understanding was that USAir was required to
      determine my disability benefits based on my average monthly
      earnings. And according to the -- my understanding, according
      to the provisions of the Plan and how they interpreted it in 1992,
      when I didn‟t have any previous year‟s salary, they went to my
      last active year when I had a W-2, in order to determine what
      my average monthly earnings were because the disability
      benefits were based on 60 percent of your average monthly

10
   The quoted passage is actually from section 22.F.4. See Amended
Complaint, 5/25/2012, at Exhibit 27. This was confirmed by Janet Fields
during her deposition. N.T., 3/14/2016, at 16.

                                     - 15 -
J-A01044-17


     earnings.    And that‟s how the 1992 Retirement Board
     determined my benefits in 1992.            So it was identical
     circumstances in 1994. I had no previous year‟s salary because
     USAir placed me on weight suspension and everything was
     identical. So I didn‟t understand the difference. There was no
     difference.
                                   ***

     Since the onset of everything can be attributed to the weight
     suspension, I believe the benefits should be based on the
     previous year‟s wages of the initial weight suspension year, in
     which case, I earned wages.

N.T., 3/29/2016, at 151-53.

     Fields testified about how she reached the decision that Skonieczny

was entitled to zero dollars in LTD benefit.       She testified that “USAir

interpreted that language to require flight attendants to have wages in the

year previous to the date benefits commence.” N.T., 3/14/2016, at 19. With

respect to Skonieczny receiving an LTD benefit in 1992, when she had not

earned wages in 1991, Fields testified that it was “an honest mistake.” Id. at

37. However, she testified that other than Skonieczny‟s situation in 1992,

she was not aware of any other flight attendant who received LTD benefits

who had not actually earned wages the prior year. Id. at 40.

     Based on the foregoing, we conclude the trial court did not err in

finding that Fields‟s determination was neither arbitrary nor capricious. She

applied the clear and unambiguous11 language found in the plan with respect

to “previous year‟s gross salary divided by the number of months actually

11
   Skonieczny concedes the language of the plan is unambiguous. See
Skonieczny‟s Brief at 31 (“[Skonieczny] has never asserted that the LTD Plan
language was ambiguous.”).

                                    - 16 -
J-A01044-17


worked.”   Amended     Complaint,    5/25/2012,   at   Exhibit   27.   Because

Skonieczny did not work any months during 1994, she was not entitled to

collect an LTD benefit under this plan.

      Moreover, it is evident that the testimony of Skonieczny‟s expert,

Quinn, could not be presented to a jury under these circumstances.         His

primary rationale for opining that Skonieczny had a viable ERISA claim was

based upon the fact that Skonieczny had received benefits under the same

plan in 1992.     However, in Shopmen’s Local Union 527 Pension &

Benefit Funds v. T. Bruce Sales, 2007 WL 649277, at *1 (W.D. Pa. Feb.

6, 2007), the same District Court that granted summary judgment in favor

of U.S.A.ir held that there is “no case holding an employee who is

unambiguously ineligible for benefits under the terms of an ERISA plan can

nonetheless receive that benefit because the administrator granted it to

other ineligible participants.”12   Thus, Quinn erred as a matter of law in

rendering his expert opinion.

      Accordingly, Skonieczny could not have prevailed had Appellees filed a

lawsuit utilizing an ERISA claim.    Thus, we agree with the trial court that




12
   See Vitale v. Latrobe Area Hosp., 420 F.3d 278, 286 (3d Cir. 2005)
(“Where an ERISA plan mandates a denial of benefits, the mere fact that
administrators have in the past granted benefits is no reason to impose a
straightjacket requiring them to do so forever. Both the clear requirements
of ERISA and obvious reasons of policy suggest that administrators should
be allowed to correct their mistakes and deny benefits to those participants
who are not eligible for them under the unambiguous terms of their plan.”).


                                     - 17 -
J-A01044-17


Skonieczny failed to establish the elements of a legal malpractice claim on

this basis.

      Having concluded that Skoniezcny has presented no issue on appeal

entitling her to relief, we affirm the judgment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/28/2017




                                     - 18 -
