HomeMy WebLinkAbout2023-01008
UPPER ALLEN TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION
:
STEPHEN J. GUTSHALL and :
SHERRY M. CASWELL, :
Co-Executors of the ESTATE OF :
JAMES M. GUTSHALL, and :
HOOVER ENGINEERING :
SERVICES, INC., :
Defendants :
:
v. :
:
JOHN N. PAPOUTSIS, :
st
ESQUIRE, and 1 ADVANTAGE:
SETTLEMENT SERVICES, :
INC., :
Additional Defendants : NO. 2023-01008 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT
JOHN N. PAPOUTSIS, ESQUIRE, TO AMENDED CROSS-CLAIM
OF DEFENDANT HOOVER ENGINERING SERVICES, INC.
BEFORE SMITH, HYAMS and SIBERT, JJ.
OPINION and ORDER OF COURT
HYAMS, J., January 6, 2025.
In this civil action (a) a municipality seeks damages arising out of a purported
conditions of approval of a subdivision and land development plan imposed by the
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municipality, and (b) an attorney who allegedly prepared two deeds from the decedent
that did not contain a notice required by the conditional approval is the subject of an
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See
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amended cross-claim filed by the defendant engineer. For disposition at this time are
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preliminary objections filed by the attorney to the amended cross-claim.
Briefs have been submitted by the additional defendant attorney in support of his
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preliminary objections, and by the defendant engineer in opposition to the preliminary
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objections.
For the reasons stated herein, the preliminary objections of the defendant engineer
will be overruled.
STATEMENT OF FACTS
This action was commenced by the filing of a complaint on February 7, 2023. The
Plaintiff is Upper Allen Township, a township of the first class located in
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Cumberland County, Pennsylvania. Defendants Stephen J. Gutshall and Sherry M.
Caswell are co-
testamentary granted by the Register of Wills of Cumberland County, Pennsylvania, on
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-Claims against Additional Defendant,
John N. Papoutsis, Esquire, filed July 30, 2024 (hereinafter -claim
against Additional Defendant Papoutsis). The original cross-
Defendant, Hoover Engineering Services, Inc. to Complaint with New Matter and New Matter Cross-
Claims, ¶¶70-73, filed July 7, 2023.
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Preliminary Objections of Additional Defendant John N. Papoutsis, Esq. to Amended Third-Party
Complaint of Defendants Stephen J. Gutshall and Sherry M. Caswell, Executors of the Estate of James M.
Gutshall, and to Amended Crossclaim of Defendant Hoover Engineering Services, Inc., filed August 19,
2024 (hereinafter, for purposes of this opinion, Preliminary Objections of Additional Defendant Papoutsis
to Amended Cross-claim).
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Br\[ie\]f in Support of Preliminary Objections of Additional Defendant John N. Papoutsis, Esquire
to . . . Amended Crossclaims of Defendant Hoover Engineering Services, filed August 19, 2024
(hereinafter Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended
Cross-claim).
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Memorandum of Law in Support of Defendant Hoover Engineering Services, I
Opposition to Preliminary Objections of Additional Defendant John N. Papoutsis, Esquire, filed
September 6, 2024.
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2
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May 2, 2022. And Defendant Hoover Engineering Services, Inc., is a Pennsylvania
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business corporation, providing civil engineering services, having its principal place of
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business in York County, Pennsylvania.
subdivision and land development plan submitted by the decedent of Defendant
Executors Stephen J. Gutshall and Sherry M. Caswell, subject to a deferral of the
based upon a representation by the decedent and a representative of his engineer,
Defendant Hoover Engineering Services, Inc., that liability for the expense of such a
connection would be imposed upon future lot owners by way of a notation to that effect
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on the recorded plan and inclusion of a notice to that effect in their deeds.
. . . \[T\]he applicant shall list the deferral notification in each deed so that future
property owners shall be made aware that they will be responsible for installing public
sanitary sewer should the Township require a connection. In addition, the 6 lots would be
required to share in the cost of the extension of the public sanitary sewer in the event of
the failure of one or more of the lots to support an on-lot disposal system or if the public
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sewer line is extended along Lisburn Road.
The condition also appears as Condition 13 in
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the approval.
However, the plan as recorded did not contain an explicit recitation of this deed
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requirement. In this regard,
block that the Board approved the deferral request at the October 7, 2015 meeting, and
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Introduction and ¶¶1, 6-14.
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granted until such time as the Board of Commissioners deem the improvement
18. The notes on the cover sheet referenced in the last two paragraphs did not
comply with Condition No. 13 and were not sufficient to put subsequent purchasers on
notice of Condition No. 13 including the requirement to connect to sanitary sewer if
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deemed necessary by the Township.
Nor did deeds to lots transferred in September, 2017, and April, 2018, by the
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decedent contain the notice. Furthermore, even after the decedent had been made aware
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of the omission, he executed a third deed in January of 2022 without the notification,
and following his death a fourth deed was executed in May of 2022 by the executors of
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his estate that did not contain it.
As a consequence of these lapses, Plaintiff Township has been deprived of its
ability to collect the expense of an extension of the system from the recipient lot
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owners.
the Township has incurred monetary damages in the amount of $640,500 representing the
cost to connect the conveyed lots to the sanitary sewer system as follows:
a. Engineering estimated to total $98,000.00
Surveying $10,000
Basemapping $2,500
Preliminary Design $9,500
PA DEP Pre-Application Meeting
& Planning Mailer $1,000
PA DEP Planning Module $10,000
Penn DOT HOP Permitting $15,000
Final Design $8000
Bidding Documents $7500
Construction Administration/Site Visits $10,000
Inspection $18,000
Testing $2,500
Permit Closeout $4,000
b. Construction costs estimated to total $545,500.00
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-18.
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Connection to existing manhole $2,500.00
Directional drilling under State road $25,000-$30,000
$195,000
Restoration (only PennDOT shoulder) $187,500 ($125/LF)
Grinder Pumps (5 total) $70,000
House lateral connections (5 total) $12,500 ($2,500/ea.)
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Contingency (10%) $50,000
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Defendant Executors and
Defendant Engineer
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denied, by order of court dated June 7, 2023. On June 27, 2023, Defendant Executors
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filed a praecipe for a writ to join John N. Papoutsis, Esquire, as an additional defendant,
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and subsequently filed an amended third party complaint against him.
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In an answer to Plaintiff complaint, Defendant Engineer notes that it
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certain
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conditional approval letter from Plaintiff Township dated October 8, 2015, and asserts
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-claims pursuant to Pa.R.C.P. 1031.1
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prayer for relief and ¶43.
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Order of Court, dated June 7, 2023.
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Praecipe for Writ To Join Additional Defendant, filed June 27, 2023.
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Amended Third Party Complaint against John N. Papoutsis, Esquire Filed by Stephen J. Gutshall and
Sherryl M. Caswell, Executors of the Estate of James M. Gutshall, filed July 29, 2024.
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Answer of Defendant, Hoover Engineering Services, Inc. to Complaint with New Matter and New
Matter Cross-
Complaint).
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.
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, ¶15.
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substantially contributed to by the negligence and/or other liability producing conduct of
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the other defendants and additional defendants in this action
defendants, and additional defendants joined to this action, are solely liable to Plaintiff
\[Township\], and/or jointly and severally liable with \[Defendant Engineer\], or are liable
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On July 30, 2024, Defendant Engineer filed an amended cross-claim against
complaint, as well as the averments of the amended third party complaint filed by the
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defendant executors against the additional defendant, and alleges that
3. \[Defendant Engineer\] relied on \[Additional Defendant Papoutsis\] to properly
prepare a deed for the subject property that included any encumbrances, covenants and
restrictions required by the township.
4. \[Defendant Engineer\] reasonably expected \[Additional Defendant\] Papoutsis
to properly prepare a deed for the subject property that included any encumbrances,
covenants and restrictions required by the township.
* * * *
6. Should Plaintiff \[Township\] prove the claims as set forth in the Amended
Complaint, any liability on the part of \[Defendant Engineer\] being specifically denied, it
is averred that any such damages were caused or substantially contributed to by the
negligence and/or other liability producing conduct of \[Additional Defendant\] Papoutsis.
7. To the extent that \[Defendant Engineer\] is found liable for claims and damages
asserted by Plaintiff \[Township\], or any other party, said liability being expressly denied,
then \[Defendant Engineer\] asserts that \[Additional Defendant\] Papoutsis is solely liable,
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damages or any damages claimed by any other party.
The preliminary objections sub judice of Additional Defendant Papoutsis to the
defendant amended cross-claim were filed on August 19, 2024. As
preliminary objections as -claim are:
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29
.
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-claim against Additional Defndant
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-claim against Additional Defendant Papoutsis, ¶¶3-4. 6-7.
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1. Are the claims against Additional Defendant Papoutsis in fact legal
malpractice claims, rather than negligence claims, and therefore require a certificate of
merit?
2. \[Does\] the lack of privity between Additional Defendant Papoutsis
. . . and \[Defendant Hoover Engineering Services, Inc.,\] preclude recovery for \[its\] de
facto malpractice claim?
* * * *
5.
a claim upon \[which\] relief may be granted?
6. Should the claims against Additional Defendant Papoutsis be dismissed with
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prejudice and leave to amend be denied?
certificate of merit incident to the amended cross-claim requires a
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dismissal of the claim, he cites Pennsylvania Rule of Civil Procedure 1042.3(a), which
professional deviated from an acceptable professional standard, the attorney for the
plaintiff . . . shall file with the complaint or within sixty days after the filing of the
complaint, a certificate of merit signed by the attorney . . . that either . . . an appropriate
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In this regard, the additional defendant argues that the rule is applicable to the
cross-claim of the defendant engineer
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\[Additional Defendant\] Papoutsis depend upon showing he breached his professional
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Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 4-5.
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Preliminary Objections of Additional Defendant Papoutsis to Amended Cross-claim, ¶¶25, 28.
34
See Pa. R.C.P. 1042.3(a)(1), (3).
35
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 6.
7
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According to the
additional defendant,
\[a\]t a minimum, the claims require a party with standing and a certificate of merit to
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proceed. Neither is present here.
renders
the defendant -claim against him unsustainable, it is argued that
. . . The absence of privity defeats both \[a\] breach of contract and a malpractice
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claim. . . .
* * * *
\[Additional Defendant\] Papoutsis is not alleged to have represented either \[the
decedent\] nor the \[b\]uyers in the closing\[s\]; he prepared the \[d\]eeds. He never
represented either of the parties bringing claims now.
maintain an action against an attorney for malpractice is the party represented by that
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In connection with the defendant
amended cross-claim against him fails to state a viable cause of action, the
additional defendant asserts that
-\[p\]arty claims, and therefore should
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It appears that the additional defendant is thereby
incorporating arguments pertaining to preliminary objections filed by him to the
(a) advancing affirmative defenses in the form of the
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statute of limitations and statute of frauds, (b) averring that the executor decedent was
36
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 9.
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Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 9.
38
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 8.
39
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 8-9. (citation omitted).
40
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 16-17.
41
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 10.
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, inasmuch
of services, the real estate agent was the promisee, and the
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and (c) alleging
\[deeds\] were plainly prepared and executed before \[the additional defendant\] had notice
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of the obligation to include Condition No. 13.
defects in the amended cross-claim of Defendant Engineer against him are not
\[a\]mended \[t\]hird-\[p\]arty
\[c\]omplaint \[of Defendant Executors\] recites events that do not and could not constitute a
viable cause of action, that Defendant Exe
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without necessary supporting facts, and \[Defendant Engineer\] even less and that
where proposed amendments would be against positive rules of law they will be regarded
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DISCUSSION
Statement of law. Under Pennsylvania Rule of Civil Procedure 1028, grounds for
4647
and
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42
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 14.
43
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 10.
44
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 17.
45
Brief of Additional Defendant Papoutsis in Support of Preliminary Objections to Amended Cross-
claim, at 17, citing Tanner v. Allstate Insurance Company, 321 Pa. Super. 132, 138, 467 A.2d 1164, 1167
(1983).
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Pa. R.C.P. 1028(a)(4).
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Pa. R.C.P. 1028(a)(2).
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Pa. R.C.P. 1028(a)(3).
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Under the Rules, it
or statute of limitations can be asserted only in a responsive pleading under the heading
New Matter,
§22:2, citing Pa. R.C.P. 1030 (2024 update) (citations omitted).
action, should be sustained only in cases that are clear and free from doubt. The test on
\[such\] preliminary objections is whether it is clear and free from doubt from all of the
facts pleaded that the pleader will be unable to prove facts legally sufficient to establish
his right to relief. To determine whether preliminary objections have been properly
sustained, \[a c\]ourt must consider as true all of the well-pleaded material facts set forth in
Little-
Stepp v. Cancilla, 2006 PA Super 73, ¶4, 896 A.2d 647, 650.
complaint but must limit itself to such matters as appear therein, and an effort to supply
facts missing from the objectionable pleading makes the preliminary objection in the
Practice 2d §25:
objection based upon legal insufficiency of pleading) (Nov. 2024 update).
Under Pennsylvania Rule of Civil Procedure 1042.3 (Certificate of Merit), it is
provided as follows:
(a) In any action based upon an allegation that a licensed professional deviated
from an acceptable professional standard, the attorney for the plaintiff . . . shall file with
the complaint or within sixty days after the filing of the complaint, a certificate of merit
signed by the attorney . . . that either
(1) an appropriate licensed professional has supplied a written
statement that there exists a reasonable probability that the care, skill or
knowledge exercised or exhibited in the treatment, practice or work that
is the subject of the complaint, fell outside acceptable professional
standards and that such conduct was a cause in bringing about the harm,
or
* * * *
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(3) expert testimony of an appropriate licensed professional is
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unnecessary for prosecution of the claim.
. . . required for
professional liability actions brought by plaintiffs who are not patients or clients of a
Bruno v. Erie Insurance Company, 630 Pa. 79, 121, 106 A.3d 48,
74 (2014).
Under Pennsylvania Rule of Civil Procedure 1019 (Contents of Pleadings. General
. . . is based
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be alleged for such an action \[on a contract\] are simple: there was a contract, the
McShea v. City
of Philadelphia, 606 Pa. 88, 97, 995 A.2d 334, 340 (2010) (citation omitted).
is broadly defined as
of property, or such an identification of interest of one person with another as to represent
Montella v. Berkheimer Associates, 690 A.2d 802, 804 (Pa.
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Traditionally, an aggrieved client in privity with a professional has a choice
either to sue the professional in assumpsit on the theory that the professional failed to
follow specific instructions and thereby committed a breach of contract, or to sue the
professional in trespass, on the theory that the professional failed to exercise the standard
of care required in performing the promised services. When an aggrieved client attempts
to combine both contract and negligence theories, courts examine the claim to determine
whether it essentially charges a failure by the professional to exercise the appropriate
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caused by his negligence to a person intended to be benefitted by his performance
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Pa. R.C.P. 1042.3(a)(1), (3) (emphasis added).
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Pa. R.C.P. 1019(a).
51
4 Pattern Discovery Products Liability 3d §54.8 (Parties) (March 2024 update).
52
Auditor Liability
Association Quarterly 109, 118 (July 1994) (citations omitted).
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Bearhalter v. Tracy, 20 Pa. D. & C.3d 1, 6-7, 1981
WL 438, at 3 (Bucks Co. 1981).
In making the determination whether, in a particular case, the privity requirement should
be dispensed with, the fact-finder \[is to\] employ a balancing test. This test . . . involves
the weighing of several factors, to wit: the extent to which the transaction was intended to
affect the plaintiff; the foreseeability of harm to the plaintiff; the degree of certainty that
the plaintiff suffered injury; and the policy of preventing future harm.
Id.; see Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983) (upholding right of
disqualified devisee under will to sue draftsman in assumpsit).
Application of law to facts.
that amended cross-claim against him must be dismissed for lack
of a certificate of merit, several factors militate against dismissing the amended cross-
claim on that basis. First, one ground for the cross-claim is that the additional defendant
is directly liable to the plaintiff townshipa non-client, as to which the certificate-of-
insistence that no attorney-client relationship existed between him and the defendant
engineer is not consistent with an argument that a pleading requirement predicated upon
such a relationship should be applied. Third, the preliminary objection was technically
premature, inasmuch as it was filed prior to the expiration 60 days from the filing of the
amended cross-claim.
amended cross-claim against him must be dismissed for lack of privity, the absence of
privity is not invariably fatal to a legal malpractice claim where the claimant can be said
to have been intended to be An analysis of this
contention will be assisted by a more developed factual record, for purposes of an
application of the aforesaid balancing test.
In connection with the
-claim against him must be dismissed for lack of legal validity,
the court will apply the general rule that statute-of-frauds and statute-of-limitations
defenses are to be raised in a responsive pleading under the heading of New Matter rather
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than asserted by way of preliminary objections.Theargument thatthe defendant engineer
could not have beenanintended beneficiary
servicesbecausehisservices were acquiredby a real estate agent for the benefit of
recipients of the deeds, assumes facts not pled and overlooks other inferences that may be
drawn from the pleadings; and a premise of the demurrer that
plainly prepared and executed before \[the additional defendant\] had notice of the
also is characteristicof a speaking demurrer.
Based upon the foregoing, the following order at this preliminary stage of the case
will be entered:
ORDER OF COURT
AND NOW, this 6thday of January, 2025, upon consideration of the Preliminary
Objections of Additional Defendant John N. Papoutsis, Esq....to Amended Crossclaim
of Defendant Hoover Engineering Services, Inc.,filed August 19, 2024, and for the
reasons stated in the accompanying opinion, the preliminary objections to the said
amendedcross-claimare overruled and Additional Defendant John N. Papoutsis, Esq., is
afforded a period of 20 days from the date of this order to file areplyto the amended
cross-claim.
BY THE COURT,
________________
Carrie E. Hyams, J.
DISTRIBUTION:
J. Stephen Feinour, Esq.
Joshua D. Bonn, Esq.
NAUMAN, SMITH, SHISSLER & HALL, LLP
18th Floor
200 North Third Street
Harrisburg, PA 17101
Attorneys for Plaintiff
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Linus E. Fenicle, Esq.
Bingran Li, Esq.
SMIGEL, ANDERSON & SACKS, LLP
4431 North Front Street, Fl. 3
Harrisburg, PA 17110-1778
Attorney for Defendants Stephen J. Gutshall and
Sherry M. Caswell, Co-Executors of the Estate of
James M. Gutshall
Frederick M. Brehm, Esq.
Madison C. Bierley, Esq.
BREHM NOFER & McCARTER, P.C.
Suite 1450
161 Washington Street
Conshohocken, PA 19428
Attorneys for Defendant Hoover Engineering
Services, Inc.
Murray J. Weed, Esq.
Frank J. Lavery, Jr., Esq.
LAVERY LAW
225 Market Street, Suite 304
Harrisburg, PA 17101-2126
Attorney for Additional Defendant John N. Papoutsis, Esq.
Matthew G. Laver, Esq.
Elizabeth Melamed, Esq.
WEBER GALLAGHER SIMPSON
STAPLETON FIRES & NEWBY LLP
2000 Market Street, Suite 1300
Philadelphia, PA 19103
st
Attorneys for Additional Defendant 1 Advantage
Settlement Services, Inc.
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