The URL can be used to link to this page

Home My WebLink About2008-4275 Civil LAW OFFICES OF PETER J. RUSSO, : IN THE COURT OF COMMON PLEAS OF P.C., : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : KELLY J. KON, : DEFENDANT : 08-4275 CIVIL TERM IN RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., July 16, 2010:-- Now before the court is the motion for judgment on the pleadings filed by plaintiff, Law Offices of Peter J. Russo P.C., to the counterclaim raised by 1 defendant, Kelly J. Kon, representing herself. Following argument en banc, we grant plaintiff's motion and dismiss Kon's counterclaim. Plaintiff represented Kon in a domestic relations action in 2006. After she accepted a settlement, the matter was resolved. Plaintiff now sues Kon for unpaid legal fees. Roughly a month after plaintiff filed its complaint, Kon filed an answer and counterclaim sounding in professional negligence. In response, plaintiff filed a notice of intention to enter judgment non pros for Kon’s failure to file a Certificate 1 Kon attended oral argument but was not permitted to participate due to her failure to file a brief prior to argument. See C.C.R.P. Nos. 1034(a); 1028(c)(5) (“Argument may be denied to any party who fails to comply with the [briefing] requirements of this paragraph.”). 08-4275 CIVIL TERM 2 of Merit pursuant to Pa. R.C.P. No. 1042.3. Ultimately, Kon filed a Certificate of Merit alleging “[e]xpert testimony of an appropriate licensed professional is unnecessary for the prosecution of my claim.” Based on this record, we now dismiss Kon's counterclaim. A fair reading of Kon's counterclaim reveals two sets of claims against plaintiff: those sounding in professional negligence, and those objecting to the amount of her settlement. The latter may be dismissed pursuant to our Supreme Court's opinion in Muhammad v. Strasburger et al., 526 Pa. 541, 587 A.2d 1346 (1991). In Muhammad, our Supreme Court barred legal malpractice actions filed by disgruntled clients who sue their former counsel on the sole basis of subsequent dissatisfaction with the amount of a settlement. Id. at 547, 587 A.2d at 1348. Later, our Supreme Court limited the Muhammad claim preclusion, in relevant part, to claims that consist of nothing more than “speculation as to whether a jury would return a verdict greater than the amount recovered by a settlement.” McMahon v. Shea, 547 Pa. 124, 130, 688 A.2d 1179, 1182 (1997). 2Rule 1042.3 reads, in relevant part, a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party 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 * * * (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. Pa. R.C.P. No. 1042.3 (emphasis added). -- 2 08-4275 CIVIL TERM Here, paragraphs 22, 23, 24, 25, and 27 of Kon's counterclaim are nothing more than retroactive disputations of the value of the settlement she accepted upon plaintiff's advice. See Def.'s Counterclaim at ¶22 (disputing valuation of vehicles); ¶23 (alleging agreement to vacate residence led to financial detriment); ¶¶24-25 (asserting agreement not to pursue child support led to financial detriment); ¶27 (alleging excessive fees). As such, they are barred by Muhammad, and dismissed. The remaining allegations in Kon's counterclaim all relate to the inadequacy of plaintiff's legal services and advice which resulted in her accepting an allegedly financially detrimental settlement. Muhammad does not preclude these claims because, alone, “the fact that the legal document at issue had the effect of settling a case should not exempt [one's] attorneys from liability.” McMahon, 547 Pa. at 130, 688 A.2d 1182. “[T]he necessity for an attorney's use of ordinary skill and knowledge extends to the conduct of settlement negotiations.” Id., 688 A.2d at 1182. Even though these claims are not precluded by Muhammad, we must nonetheless dismiss them due to Kon's failure to file an appropriate Certificate of Merit. Our General Assembly introduced the Certificate of Merit requirement as “a component of a scheme designed to contain costs of professional liability insurance and encourage prompt determination and adjudication of malpractice claims.” Wilson v. El-Daief, 600 Pa. 161, 184, 964 A.2d 354, 367-68 (2009). Requiring a Certificate of Merit helps to “eliminate frivolous claims of professional negligence and, possibly, to help hasten the prosecution of the same.” Almes v. -- 3 08-4275 CIVIL TERM Burket, 881 A.2d 861, 866 (Pa. Super. 2005). For these reasons, a litigant cannot pursue a professional negligence action without first obtaining “a written statement that there exists a reasonable probability that the care, skill or knowledge exercised … fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm ....” Pa. R.C.P. No. 1042.3(a)(1). Kon contends expert testimony is unnecessary for the prosecution of her claim; she is wrong. A layperson would not be able to determine whether plaintiff's legal advice was negligent without expert testimony regarding an attorney's proper standard of care. Notably, Kon does not allege fraud or gross incompetence such that expert testimony is unnecessary for a jury to determine negligence. Kon needed to file a Certificate of Merit attesting to the fact that a licensed professional had supplied her with a written statement that there exists a reasonable probability that she was the victim of legal malpractice. Pa. R.C.P. No. 1042.3(a)(1). She did not do so, and the Certificate she filed is binding. McCool v. Dept. of Corrections, 984 A.2d 565, 571 (Pa. Cmwlth. 2009). Because Kon cannot pursue her claim for professional malpractice without expert testimony, her complaint fails to state a claim. Id. at 571-72. Accordingly, we grant plaintiff's motion for judgment on the pleadings. -- 4 08-4275 CIVIL TERM ORDER OF COURT AND NOW, this day of July, 2010, the plaintiff’s motion for IS GRANTED. IS judgment on the pleadings, The defendant’s counterclaim DISMISSED. By the Court, Albert H. Masland, J. Elizabeth J. Saylor, Esquire For Plaintiff Kelly J. Kon, Pro se PO Box 712 New Bloomfield, PA 17058 :sal -- 5 08-4275 CIVIL TERM LAW OFFICES OF PETER J. RUSSO, : IN THE COURT OF COMMON PLEAS OF P.C., : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : KELLY J. KON, : DEFENDANT : 08-4275 CIVIL TERM IN RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. AND MASLAND, J. ORDER OF COURT AND NOW, this day of July, 2010, the plaintiff’s motion for IS GRANTED. IS judgment on the pleadings, The defendant’s counterclaim DISMISSED. By the Court, Albert H. Masland, J. Elizabeth J. Saylor, Esquire For Plaintiff Kelly J. Kon, Pro se PO Box 712 New Bloomfield, PA 17058 :sal -- 6