J-A21005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BEVERLY E. BROWN                                     IN THE SUPERIOR COURT
                                                                   OF
                                                              PENNSYLVANIA
                             Appellant

                        v.

    CATHY S. BOYER, ESQUIRE AND BOYER,
    PAULISICK & EBERLE

                             Appellees                      No. 206 WDA 2017


                Appeal from the Order Entered January 12, 2017
                 In the Court of Common Pleas of Butler County
                        Civil Division at No: 2014-10798


BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                                  FILED MAY 18, 2018

        Appellant, Beverly E. Brown, appeals from the January 12, 2017 order

sustaining the preliminary objections of Appellees, Cathy S. Boyer (“Boyer”)

and Boyer, Paulisick & Eberle (collectively with Boyer, “Appellees”) and

dismissing Appellant’s complaint with prejudice. We reverse and remand.

        Appellant sued Appellees for professional negligence and breach of

contract based on Appellees’ representation of her in her divorce action. 1 As

part of that representation, Appellees negotiated an agreed-upon division of

marital assets (the “Agreement”).              Pursuant to the Agreement, Appellant

would receive, as an annuity, one-half of the marital portion of her ex-

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1 We have culled the relevant facts from the trial court’s February 27, 2017
opinion.
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husband’s pension (the “Pension”) from the Slippery Rock Borough. Second

Amended Complaint, 5/2/16, at ¶ 12. The annuity was to begin upon the ex-

husband’s earliest retirement date and continue after his death.               Id.

Subsequently, the Pension plan administrator determined that Appellant could

not receive the agreed-upon annuity because the Pension was not an ERISA2

qualified plan.    Id.3    Appellant therefore claims she did not get what she

bargained for under the Agreement.               Appellant claims she would have

negotiated a more favorable distribution of other marital assets had she known

she would not receive the annuity. Id. at ¶ 24.

       Appellant commenced this action by writ of summons on September 8,

2014 and filed her second amended complaint on May 2, 2016. Appellees

filed preliminary objections on May 23, 2016, claiming Appellant failed to state

a claim upon which relief could be granted.4           The trial court conducted a

hearing on December 22, 2016. On January 12, 2017, the trial court entered

the order on appeal, which sustained Appellees’ preliminary objections and

dismissed Appellant’s complaint with prejudice. This timely appeal followed.




____________________________________________


2   Employee Retirement Income Security Act, 29 U.S.C.A. § 1001, et. seq.

3  The Second Amended Complaint, in an apparent typographical error,
contains two consecutive paragraphs numbered “12.”

4 See Pa.R.C.P. No. 1028(a)(4) (“Preliminary objections may be filed by any
party to any pleading and are limited to the following grounds: […] legal
insufficiency of a pleading (demurrer)[.]”).

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J-A21005-17


       The sole issue before us is whether the trial court erred in finding that

Appellant failed to state a claim because the alleged damages were

speculative. Appellant’s Brief at 5.

              Our standard of review of an order of the trial court
       overruling or [sustaining] 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 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.

Adams v. Hellings Builders, Inc., 146 A.3d 795, 798 (Pa. Super. 2016).

       Appellant’s contract and tort causes of action require proof of damages.

Wachovia Bank, N.A. v. Ferrenti, 935 A.2d 565, 570-71 (Pa. Super.

2007);5 CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super.




____________________________________________


5 “The elements of a legal malpractice action, sounding in negligence, include:
(1) employment of the attorney 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 the harm to the plaintiff.” Ferrenti, 935 A.2d at
570-71.



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J-A21005-17


1999).6 The law provides: “The mere breach of a professional duty, causing

only […] speculative harm […] does not suffice to create a cause of action for

[professional] negligence.”         Wachovia, 935 A.2d at 571–72 (quoting

Schenkel v. Monheit, 405 A.2d 493, 494 (Pa. Super. 1979)).

             However, the “[t]he test of whether damages are remote or
       speculative has nothing to do with the difficulty in calculating the
       amount, but deals with the more basic question of whether there
       are identifiable damages.... Thus, damages are speculative
       only if the uncertainty concerns the fact of damages rather
       than the amount.”

Id. at 572 (quoting Rizzo v. Haines, 555 A.2d 58, 68 (Pa. 1989)) (emphasis

added in Wachovia).

       The trial court reasoned as follows:

             In this case, the damages sought by [Appellant] are
       speculative at best. The amount Appellant claims in damages in
       her Second Amended Complaint is that which she would receive
       under her ex-husband’s Pension, in the event said Pension was
       available to her. However, as previously stated, [Appellant’s] ex-
       husband’s pension would not have been available to her with or
       without [Boyer’s] advice. That is, no action or inaction of
       [Appellant’s] counsel would have resulted in [Appellant’s] ability
       to receive her ex-husband’s Pension in any form. Therefore, it is
       a remedy that is unavailable as a matter of law rather than as a
       result of any wrongdoing by counsel.

Trial Court Opinion, 1/12/17, at 4-5.




____________________________________________


6  “A cause of action for breach of contract must be established by pleading
(1) the existence of a contract, including its essential terms, (2) a breach of a
duty imposed by the contract and (3) resultant damages.” Cutillo, 723 A.2d
at 1058.



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J-A21005-17


      We disagree.    Appellant has alleged that she received less than she

bargained for in the Agreement due to counsel’s erroneous advice.           Said

another way, she is seeking the difference between the amount she believed

she would receive under the Agreement and the amount she actually received

as a result of Appellees’ alleged erroneous advice. Thus, she has alleged the

fact of damages, and we agree with Appellant’s assertion that the amount she

expected to receive is easily ascertainable: begin with the value of her ex-

husband’s Pension as of his earliest retirement date, divide it in half, and

multiply that amount by Appellant’s life expectancy. Appellant’s Brief at 15.

We do not find that calculation to be overly speculative, and in any event,

damages need not be calculated with mathematical precision.          Wachovia,

935 A.2d at 572. At the very least, the issue is not so “free and clear of doubt”

as to be disposed of on preliminary objections, as the trial court did here.

Adams, 146 A.3d at 798.

      The trial court reached a different conclusion because Appellant is not

legally entitled to receive half of her ex-husband’s Pension. We disagree, and

conclude that Appellant’s legal inability to receive the benefit of the Agreement

is precisely the point. Appellant alleged Appellees committed malpractice by

negotiating an agreement whose execution was impossible because Appellees

failed to appreciate that the Pension was not an ERISA-qualified plan.

Appellant alleges that she entered the Agreement based on Appellees’

erroneous advice and received less than she bargained for because of


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J-A21005-17


Appellees’ error. The trial court erred in concluding that Appellant failed to

state a claim upon which relief can be granted.

      For the foregoing reasons, we reverse the order sustaining Appellees’

preliminary objections and remand for further proceedings.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Olson files a concurring statement in which Judge Stabile joins.

      President Judge Emeritus Bender files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2018




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