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HomeMy WebLinkAbout2007-5576 JOHN E. FRICK, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : : : : v. : : : : FRANK P. CLARK, : NO. 07-5576 CIVIL DEFENDANT : IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J. AND EBERT, J. ORDER OF COURT th AND NOW , this 18 day of March, 2011, upon consideration of Defendant’s Motion for Summary Judgment, the briefs filed by the parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Motion for DENIED. Summary Judgment is By the Court, M. L. Ebert, Jr., J. Ernest J. Bernabei, III, Esq. Attorney for Defendant John M. Kerr, Esq. Attorney for Plaintiff JOHN E. FRICK, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA : : v. : : : : FRANK P. CLARK, NO. 07-5576 CIVIL DEFENDANT IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J. AND EBERT, J. OPINION AND ORDER Ebert, J., March 18, 2011 - Statement of Facts Plaintiff is John E. Frick, a former employee of the Commonwealth of Pennsylvania’s Department of Community and Economic Development (“DCED”). Defendant is Frank P. Clark, an attorney who represented Plaintiff while practicing law at Clark Law Office in Camp Hill, Pennsylvania. Plaintiff was employed by the DCED as an Information Technology (“IT”) Generalist Supervisor Database Administrator from 1 June 1999 until his termination in July 2005. Plaintiff received favorable employee 2 performance ratings from 1999 through 2003. On June 30, 2003, Plaintiff authored a memorandum to the acting DCED Secretary indicating that IT policy was not being 3 enforced and that there were various problems within the IT department. Plaintiff alleges that he was reprimanded for the memorandum and that his immediate 1 Complaint, filed Nov. 9, 2007, ¶ 4. 2 Complaint, ¶ 6. 3 Complaint, ¶ 7. 1 supervisor retaliated against him with an unfavorable employee evaluation. Plaintiff contacted DCED’s human resources office, requested a meeting, and asked for 4 explanation of his rights under the whistleblower protection law. He received a brief 5 response but was not granted a meeting. On September 30, 2004, the DCED issued a Level 1 discipline letter indicating that Plaintiff had failed to resolve ongoing problems 6 with his overall work performance. The DCED issued a Level 2 discipline letter on November 28, 2004 also alleging performance issues. Plaintiff retained Defendant to represent him with regard to his ongoing difficulties with DCED. A civil service hearing was scheduled for March 2005, and Defendant recommended a settlement in which Plaintiff would plead guilty to the Level 1 letter in exchange for dismissal of the Level 2 letter. Plaintiff did not accept the settlement. The civil service hearing was cancelled and was never rescheduled. Both disciplinary letters remained in Plaintiff’s personnel records. Plaintiff’s employment with DCED was terminated on July 22, 2005 for alleged insubordination related to following proper procedure for evaluation of a former subordinate employee. Plaintiff appealed his termination and a civil service hearing was scheduled for September 22, 2005. According to Plaintiff, a settlement with DCED was reached on September 9, 2005, but based on Plaintiff’s reservations about the 7 settlement, Plaintiff did not sign the settlement until November 16, 2005. Plaintiff alleges that he relied on representations made to him by Defendant which induced 4 Complaint, ¶ 13. 5 Complaint, ¶ 13. 6 Complaint, ¶ 14. 7 Complaint, ¶ 37. 2 8 Plaintiff to enter into the settlement with DCED. Plaintiff alleges that certain conditions of the settlement were never actually negotiated with DCED, and as a result, Plaintiff was unable to regain employment with the Commonwealth and was unable to receive the benefits of Leave Without Pay status. Procedural History Plaintiff filed a Complaint against Defendant on November 9, 2007 for legal malpractice and fraudulent inducement to enter into settlement. On December 10, 2007, Defendant filed an Answer with New Matter. On January 31, 2008, Plaintiff filed a certificate of merit, and the parties stipulated that Plaintiff would present an expert liability report within forty-five days from October 19, 2009. No expert liability report was ever filed. Defendant filed a Motion for Sanctions. On June 21, 2010, Defendant’s Motion for Sanctions was granted, and Plaintiff was precluded from presenting any expert liability reports or expert liability testimony at the time of trial. On August 18, 2010, Defendant filed a Motion for Summary Judgment based on the argument that expert testimony was required to support his claims. By Order of Court on November 3, 2010, the Honorable Kevin A. Hess granted Defendant’s Motion for Summary Judgment as to Counts I and III of the Complaint, and denied Defendant’s Motion for Summary Judgment as to Count II of the Complaint, Fraudulent Inducement to Enter into Settlement Agreement. On December 2, 2010, Defendant filed the Motion for Summary Judgment now before this Court. 8 Complaint, ¶ 31. 3 Discussion Defendant argues that he is entitled to summary judgment because expert testimony is necessary to support the causal relationship of damages to the alleged fraudulent conduct of the Defendant. We disagree and for the reasons discussed below, we deny summary judgment. A. Issues of material fact remain relating to the fraudulent inducement claim. Pursuant to Pa. C.S.A. 1035.2, after the relevant pleadings are closed, a party may move for summary judgment in two instances: (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. C.S.A. 1035.2. A court shall grant summary judgment whenever there is no genuine issue of any material fact as to a necessary element of cause of action that could be established by additional discovery. Swords v. Harleysville Ins. Co., 883 A.2d 562, 566 (Pa. 2005). Summary judgment is meant to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would simply be a useless formality. Liles v. Balmer, 567 A.2d 691, 692 (Pa. Super. 1989). In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. 4 Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005) (citing Jones v. SEPTA, 772 A.2d 435, 438 (Pa. 2001)). Furthermore, in reviewing the record, we will accept as true all well- pleaded allegations, giving the non-moving party the benefit of all reasonable inferences that can be drawn from those allegations. In re Estate of Scharlach, 809 A.2d 376, 380 (Pa.Super. 2002). In the present case, there are numerous issues of fact still in dispute concerning what details of the settlement were discussed with Plaintiff and what Plaintiff believed was being done by Defendant to negotiate a settlement with DCED. The very essence of the fraudulent inducement claim involves the specifics of what Defendant told Plaintiff about the settlement and whether this information influenced Plaintiff’s decision to accept the settlement. Specifically, Plaintiff alleges, and Defendant denies, that Defendant represented that DCED would adhere to existing management directives, which included giving Plaintiff ninety days as a bona fide Commonwealth employee to find other employment and giving Plaintiff certain rights under Leave Without Pay status. Plaintiff also alleges that Defendant made misrepresentations about how the settlement agreement addressed the issue of termination in his personnel records. The issues still in dispute are clearly ones of material fact relating to the claim of fraudulent inducement. B. Expert testimony is not required. Defendant argues that the issues in dispute cannot be resolved without expert testimony and that he is entitled to summary judgment because expert testimony has been precluded in this case. Because the matters are not beyond the knowledge of the average person, we disagree and find that expert testimony is not required in this case. 5 According to the Pennsylvania Supreme Court, [E]xpert testimony is essential where it would help the finder of fact understand an issue that is beyond the knowledge of the average person. Clearly, where the issues are not beyond such knowledge, the appropriate standard of care can be established without expert testimony. Where the issue is simple, and the lack of skill obvious, the ordinary experience and comprehension of lay persons can establish the standard of care. Rizzo v. Haines, 555 A.2d 58, 66 (Pa. 1989). Furthermore, the court in Rizzo stated that “breach of the duty to investigate, and inform one’s client of, settlement offers does not require expert testimony.” Id. at 67. Defendant argues in part that an expert is required because Plaintiff’s claims are based on legal analysis and strategy and therefore cannot be determined by a lay person. While the viability of an action under the whistleblower statute as a legal strategy may require expert testimony, it is within a lay person’s knowledge and ability to evaluate whether Defendant properly pursued all options available to Plaintiff, responded to Plaintiff’s inquiries about a particular action, thoroughly investigated and accurately informed Plaintiff of all settlement details, and timely executed any actions as directed by Plaintiff. A jury can certainly make an assessment of whether, when Plaintiff settled with his employer, Plaintiff’s decision was based on representations of Defendant, and whether those representations were accurate or inaccurate. Likewise, expert testimony is not needed for a jury to determine whether, and to what extent, Plaintiff was damaged by any misrepresentations of Defendant. It is within a lay person’s capability to listen to the testimony and determine whether Defendant’s actions or representations led Plaintiff to take the settlement offer and whether Plaintiff suffered damages as a result of this decision. Plaintiff alleges damages in the form of 6 9 lost wages for two years’ worth of employment plus fringe benefits. This can easily be understood and assessed by a jury. Viewing the record in the light most favorable to Plaintiff, the non-moving party in this case, there remain issues of material fact concerning what representations were made by Defendant and accepted by Plaintiff. Accordingly, we cannot grant summary judgment. Furthermore, it is within a jury’s capability to determine, without expert testimony, the relationship between Defendant’s conduct and Plaintiff’s claimed damages. Accordingly, the following Order shall be entered: th AND NOW , this 18 day of March, 2011, upon consideration of Defendant’s Motion for Summary Judgment, the briefs filed by the parties and after oral argument; IT IS HEREBY ORDERED AND DIRECTED that Defendant’s Motion for DENIED. Summary Judgment is By the Court, M. L. Ebert, Jr., J. Ernest J. Bernabei, III, Esq. Attorney for Defendant John M. Kerr, Esq. Attorney for Plaintiff 9 Complaint, ¶ 46. 7