HomeMy WebLinkAbout2003-2005 Civil
KEITH A. SOLENBERGER
And DALE E. SOLENBERGER,
In their capacities as Executors of
The ESTATE OF MARY K.
SOLENBERGER, Deceased
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
LOWELL R. GATES, an individual NO. 03 - 2005 CIVIL TERM
GATES & ASSOCIATES, P.C., and:
GATES, HALBRUNER & HATCH, :
P.C. CIVIL ACTION -LAW
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE BAYLEY. GUIDO. JJ.
MEMORANDUM OPINION AND ORDER OF COURT
Currently before us is the defendants' Motion for Summary Judgment. The
arguments advanced in support of the motion are virtually the same as those advanced in
support of their preliminary objections, which we previously denied. Defendants have
stated their position as follows:
An executor of an estate does not have standing to bring a legal
malpractice claim against the attorney drafter of a will. See Jones v. Wilt,
871 A.2d 210 (Pa.Super.Ct. 2005); See also Guy v. Liederbach, 459 A.2d
744 (Pa.1983). Plaintiffs have brought his case solely in their capacities as
Executors of the Estate of Mary K. Solenberger, Deceased. 1
The law relied upon by defendants was summarized in the Jones v. Wilt, supra, case as
follows:
1 See "Brief in Support of Motion for Summary Judgment", p. 1.
In Guy, our Supreme Court stated:
We therefore turn to the question of whether the estate could sue the
drafting attorney for malpractice and receive damages for the failure of the
instrument to effectuate testator's intent. In any cause of action for
malpractice, some harm must be shown to have occurred to the person
bringing suit. In the case of a failed legacy, the estate is not harmed in any
way... .
Guy, 459 A.2d at 749. Thus, the estate is required to show that it suffered some
harm in order for it to bring suit, and according to Guy, this ordinarily would not
be the case.
But the trial court concluded that the estate had standing pursuant to 20 Pa.C.S. S
3373, which states:
~ 3373. Action by or against personal representative
An action or proceeding to enforce any right or liability which survives a
decedent may be brought by or against his personal representative alone or
with other parties as though the decedent were alive.
Whether in fact this statute bestows standing upon Appellant as executor would
depend upon whether the estate was harmed by the alleged malpractice. See
Guy, 459 A.2d at 749.
(emphasis added) 871 A.2d at 213 - 214.
The defendants' reliance on the above cases is misplaced. Unlike those cases
which involved beneficiaries suing for legal malpractice as the result of an estate plan
gone awry, this is a survival action for legal malpractice which accrued to Mary
Solenberger while she was alive. It was commenced to recover "unnecessary income tax
liability and unnecessary legal fees incurred" as a result of bad legal advice.2 The action
did not die with her? Therefore, the defendants' Motion for Summary Judgment must be
denied.
2 To the extent that the estate is less because of the payment of those sums, it was harmed by the alleged
malpractice.
3 In addition to 20 Pa. C.S.A. ~ 3373 cited in Jones v. Wilt, supra, See 42 Pa. C.S.A. ~ 8302 which
provides:
SURVIVAL ACTION
All causes of actions or proceedings, real or personal, shall survive the death of the plaintiff or of
the defendant, or the death of one or more joint plaintiffs or defendants.
ORDER OF COURT
AND NOW, this 9TH day of DECEMBER, 2005, Defendants' Motion for
Summary Judgment is DENIED.
By the Court,
Edward E. Guido, 1.
David A. Strassburger, Esquire
Four Gateway Center - 22nd Floor
Pittsburgh, Pa. 15222
James R. Schadel, Esquire
Scott R. Eberle, Esquire
429 Fourth Ave., Suite 602
Law and Finance Bldg.
Pittsburgh, Pa. 15219-1503
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