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Home My WebLink About02-2009 CivilJOHN RUS SELL NICRONE, Plaintiff VS. DAVID R. BRESCHI, ESQ., MELISSA A. SWAUGER, ESQ., and SHUMAKER WILLIAMS P.C. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2009 CIVIL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS OPINION AND ORDER This case concerns a legal malpractice claim brought by John Russell Nicrone (hereinafter Plaintiff) against David R. Breschi, Melissa A. Swauger and Shumaker Williams, P.C. (hereinafter Defendants). The claim stems from a judgment of sentence passed by the Honorable Lawrence F. Clark, Court of Common Pleas of Dauphin County, wherein the court imposed a sentence upon plaintiff for imprisonment of not less than nine (9) years and no more than twenty-five (25) years. The plaintiff was sentenced following his guilty plea to criminal charges of robbery, burglary, criminal conspiracy, aggravated assault and criminal mischief. Mr. Nicrone sought to challenge the trial court's sentence and filed a motion to modify sentence with the trial court on May 5, 2000. Plaintiff' s motion to modify sentence was denied by Judge Clark on July 31, 2000. Plaintiff then requested defendants to assist in filing a direct appeal to the Superior Court of Pennsylvania challenging the discretionary aspects of plaintiff' s sentence. On June 14, 2001, the Superior Court issued a Memorandum Opinion affirming the trial court's sentence, but declining to address the merits of plaintiff' s appeal due to the failure of defendants to include a "concise statement of reasons relied upon in support of the request for appeal" in the brief filed 02-2009 CIVIL on behalf of plaintiff, as required by Rule 2119(f) of the Pennsylvania Rules of Appellate Procedure. ~ Subsequent to the dismissal of plaintiff' s first appeal to the Superior Court, the Honorable Lawrence F. Clark entered an order dated November 5,2001, granting plaintiff' s amended petition for relief under the Post Conviction Relief Act, thereby allowing plaintiff to file a new direct appeal to the Superior Court of Pennsylvania nunc pro tunc. Plaintiff filed a second appeal to the Pennsylvania Superior Court wherein the Court addressed the merits of plaintiff' s appeal. The Superior Court affirmed the judgment of sentence of plaintiff finding that plaintiff' s appeal lacked merit. The instant matter was initiated by plaintiff against defendants on April 24, 2002. Count I of plaintiff' s complaint claims legal malpractice and negligence against defendants. Count II claims defendant Melissa A. Swauger was negligent in her practice of law. Count III claims defendant Shumaker Williams, P.C. is vicariously liable for the acts of the defendant attorneys. Plaintiff's alleged damages are stated in paragraphs 14, 15, 19 and 20 of plaintiff's complaint, provided below: 14. Because of the defendant's negligence, plaintiff has been forced to endure another year of mental anguish and suffering wondering what the outcome of his appeal will be. 15. Because of the defendant's negligence, plaintiff has been forced to defend himself: to spend dozens of hours doing research in an area in which he was completely ignorant, and to do so without legal assistance because he was effectively ~ From the face of the pleadings, it is clear that the plaintiff has referenced to the Rule of Court requiring a concise statement of matters complained of with regard to the discretionary aspects of his sentence. According to Pa.R.A.P. 2119(1), such a statement must precede the argument on the merits. This is not to be confused with the "concise statement of matters complained of on the appeal" which may be required by the lower court in accordance with Pa.R.A.P. 1925(b). 2 02-2009 CIVIL without funds. Plaintiff could not afford new counsel. 19. Because of the defendant's negligence, plaintiff has been forced to endure another year of mental anguish and suffering wondering what the outcome of his appeal will be. 20. Because of the defendant's negligence, plaintiff has been forced to defend himself: to spend dozens of hours doing research in an area in which he was completely ignorant, and to do so without legal assistance because he was effectively without funds. Plaintiff could not afford new counsel. Plaintiff's Complaint, ¶ 14, 15, 19, 20. The above allegations are the only damages claimed in Plaintiff' s Complaint. Issue Pennsylvania Rule of Civil Procedure 1035.2 states that: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2. Summary judgment should be granted, "[F]irst, when there is no genuine issue of material fact that could be established by additional discovery and second, after discovery, if an adverse party bearing the burden of proof has failed to produce evidence of 3 02-2009 CIVIL essential facts so as to warrant the submission of the issue to a jury." Lynady v. Community Medical Center, 49 Pa. D. & C.4th 391,394 (Pa. Com. P1. 2000). Summary judgment is proper where, viewing all the facts in the light most favorable to the nonmoving party and resolving all doubts as to the existence of material fact against the moving party, the moving party is entitled to judgment as a matter of law. Kahres v. Henry, 801 A.2d 650 (Pa. Commw. 2002). Summary judgment may be granted, only where the moving party's right is clear and free from doubt. Id. In order to establish a claim of legal malpractice, a plaintiff client must demonstrate three elements: 1) employment of the attorney or other basis for a duty; 2) the failure of the attorney to exercise ordinary skill and knowledge; and 3) that such negligence was the proximate cause of damage to the plaintiff. Kituskie v. Corbman, 714 A.2d 1027, 1029, 552 Pa. 275,281 (Pa. 1998). An essential element to a legal malpractice cause of action is proof of actual loss, and not merely a breach of a professional duty causing only nominal damages, speculative harm or the threat of future harm. Id. "The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm--not yet realized--does not suffice to create a cause of action for negligence." Carnegie Mellon University v. Schwartz, 105 F.3d 863,867 (3d Cir. 1997). The court in Duke v. Anderson, 275 Pa. Super. 65,418 A.2d 613 (Pa. Super. 1980), noted that "when it is alleged that an attorney has breached his professional obligations to his client, an essential element of the cause of action, ... is proof of actual loss." Duke at 73,418 A.2d at 617. Duke further emphasized that, in proving damages, the client has the "task of establishing that, but for the negligence complained of, the client would have been successful in the prosecution or defense of the action in question." Duke at 74, 418 A.2d at 618. Therefore, even assuming that 4 02-2009 CIVIL the attorney is negligent, if a plaintiff' s cause of action in the underlying case is not viable, a claim of legal malpractice fails due to lack of actual damages. In the case sub judice, the July 31, 2002, opinion of the Superior Court found that the plaintiff' s argument on appeal regarding his challenge to the trial court's sentencing had no merit and affirmed the trial court's decision. As indicated above, in order to establish a claim for legal malpractice, a plaintiff must show that he/she suffered actual damages as a result of the attorney's action or inaction; i.e., that he/she would have prevailed in the underlying case. In this case, plaintiff would not, and in fact did not, prevail in the underlying case. ORDER AND NOW, this 3rd day of January, 2003, the motion of the defendants for summary judgment in this matter is SUSTAINED. The complaint of the plaintiff is DISMISSED. BY THE COURT, John Nicrone, EF-5026, Pro se SCI Dallas 1000 Follies Road Dallas, PA 18612-0286 Edwin A. D. Schwartz, Esquire For the defendants Kevin A. Hess, J. JOHN RUS SELL NICRONE, Plaintiff VS. DAVID R. BRESCHI, ESQ., MELISSA A. SWAUGER, ESQ., and SHUMAKER WILLIAMS P.C. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-2009 CIVIL IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS ORDER AND NOW, this 3rd day of January, 2003, the motion of the defendants for summary judgment in this matter is SUSTAINED. The complaint of the plaintiff is DISMISSED. BY THE COURT, John Nicrone, EF-5026, Pro se SCI Dallas 1000 Follies Road Dallas, PA 18612-0286 Edwin A. D. Schwartz, Esquire For the defendants Kevin A. Hess, J. :rlm