legal malpractice claim in Pennsylvania

2024That is no cause for abstention by the lower courts in 153 Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989) (setting forth elements of a legal malpractice claim). [J-48-2023] - 39 the meantime.

2022For a legal malpractice claim, a plaintiff must allege “(1) the employment of the attorney or other basis for 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.” Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989) (citation omitted).

2025Accordingly, the statute of limitations in a legal malpractice claim begins to run when the attorney breaches his or her duty, and is tolled only when the client, despite the exercise of due diligence, cannot discover the injury or its cause. -8- J-A24037-24 Wachovia Bank, N.A., 935 A.2d at 572-73 (citations and emphasis omitted, and paragraph break added).

2025Accordingly, the statute of limitations in a legal malpractice claim begins to run when the attorney breaches his or her duty, and is tolled only when the client, despite the exercise of due diligence, cannot discover the injury or its cause. -8- J-A24037-24 Wachovia Bank, N.A., 935 A.2d at 572-73 (citations and emphasis omitted, and paragraph break added).

2020See CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999) (emphasis added).

2001A successful breach of contract action requires “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). (citation omitted) Some Pennsylvania cases hold that a plaintiff presenting a legal malpractice claim based on a breach of contract theory must show that the defendant-attorney “failed to follow a specific instruction of the client.” Rogers v. Williams, 420 Pa. Super. 396, 401 , 616 A.2d 1031, 1033 (1992).

2026We, thus, confine our review to that element, noting that the Sabella test is conjunctive, not disjunctive.16 We have recognized the “unique nature of a legal malpractice claim[,]” Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 641 (Pa. Super. 2016), where a plaintiff “must prove a case within a case since he must initially establish[,] by a preponderance of the evidence[,] that he would have recovered a judgment in the underlying action[.]” Kituskie, 714 A.2d at 1030 .

2021Id. at 643 .

2020Id. at 961 (citation and emphasis omitted); see also id. (explaining that “the statute of limitations in a legal malpractice claim begins to run when the attorney breaches his or her duty, and is tolled only when the client, despite the exercise of due diligence, cannot discover the injury or its cause.” (citation and emphasis omitted)).

2020Id. at 961 (citation and emphasis omitted); see also id. (explaining that “the statute of limitations in a legal malpractice claim begins to run when the attorney breaches his or her duty, and is tolled only when the client, despite the exercise of due diligence, cannot discover the injury or its cause.” (citation and emphasis omitted)).

2001A successful breach of contract action requires “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). (citation omitted) Some Pennsylvania cases hold that a plaintiff presenting a legal malpractice claim based on a breach of contract theory must show that the defendant-attorney “failed to follow a specific instruction of the client.” Rogers v. Williams, 420 Pa. Super. 396, 401 , 616 A.2d 1031, 1033 (1992).

2001A successful breach of contract action requires “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). (citation omitted) Some Pennsylvania cases hold that a plaintiff presenting a legal malpractice claim based on a breach of contract theory must show that the defendant-attorney “failed to follow a specific instruction of the client.” Rogers v. Williams, 420 Pa. Super. 396, 401 , 616 A.2d 1031, 1033 (1992).

2016At oral argument, Grandson’s counsel conceded that this claim is foreclosed by our Supreme Court’s decision in Guy v. Liederbach, 501 Pa. 47 , 459 A.2d 744 (1983), In Guy , our Supreme Court held that in order to pursue a legal malpractice claim there must be an attorney-client relationship, ie., privity, between the attorney and the plaintiff.

2016At oral argument, Grandson’s counsel conceded that this claim is foreclosed by our Supreme Court’s decision in Guy v. Liederbach, 501 Pa. 47 , 459 A.2d 744 (1983), In Guy , our Supreme Court held that in order to pursue a legal malpractice claim there must be an attorney-client relationship, ie., privity, between the attorney and the plaintiff.

2025“This Court has held that the determination of when the statute of limitations has run on a claim for legal malpractice is usually a question of law for the trial judge, unless the issue involves a factual determination.” O’Kelly v. Dawson, 62 A.3d 414, 419 (Pa. Super. 2013) (citation omitted).

2025“This Court has held that the determination of when the statute of limitations has run on a claim for legal malpractice is usually a question of law for the trial judge, unless the issue involves a factual determination.” O’Kelly v. Dawson, 62 A.3d 414, 419 (Pa. Super. 2013) (citation omitted).

2016A legal malpractice claim based on breach of contract, “involves (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages.” Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282, 1287 (Pa.Super.2009).

2015A legal malpractice claim based on breach of contract, “involves (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages.” Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282, 1287 (Pa.Super. 2009), appeal denied, 604 Pa. 691 , 985 A.2d 972 (2009).

2002Our Court reasoned that when she pled guilty she “modified the ‘contract.’ ” ¶ 23 While these cases arguably support Appellants’ position, we note that the restrictive view espoused in Hoyer and Rogers , that a legal malpractice claim for breach of contract is limited solely to those instances in which the plaintiff can show that the attorney failed to follow a specific instruction of the client, no longer has continuing vitality in light of the Supreme Court’s more recent ruling in the case of Bailey v. Tucker, 533 Pa. 237 , 621 A.2d 108 (1993).

2002Our Court reasoned that when she pled guilty she “modified the ‘contract.’ ” ¶ 23 While these cases arguably support Appellants’ position, we note that the restrictive view espoused in Hoyer and Rogers , that a legal malpractice claim for breach of contract is limited solely to those instances in which the plaintiff can show that the attorney failed to follow a specific instruction of the client, no longer has continuing vitality in light of the Supreme Court’s more recent ruling in the case of Bailey v. Tucker, 533 Pa. 237 , 621 A.2d 108 (1993).

2026We, thus, confine our review to that element, noting that the Sabella test is conjunctive, not disjunctive.16 We have recognized the “unique nature of a legal malpractice claim[,]” Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 641 (Pa. Super. 2016), where a plaintiff “must prove a case within a case since he must initially establish[,] by a preponderance of the evidence[,] that he would have recovered a judgment in the underlying action[.]” Kituskie, 714 A.2d at 1030 .

2006Kituskie, 552 Pa. at 281 , 714 A.2d at 1030 ; Rizzo v. Haines, 520 Pa. 484, 504-505 , 555 A.2d 58, 68 (1989); Nelson, supra. Therefore, to succeed with a legal malpractice claim, the plaintiff must prove that [s]he had a viable cause of action against the party [s]he wished to sue and that the attorney [s]he hired was negligent in prosecuting or defending that underlying case.

2022See Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346, 1348 (Pa. 1991) (wherein, after an evidentiary hearing, a trial court determined that appellees agreed to the settlement, the appellees sued their attorney for legal malpractice, and the Pennsylvania Supreme Court held that it “will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action.” (emphasis added)).

2019Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991), [rehearing denied, 528 Pa. 345 , 598 A.2d 27 (1991), cert. denied, 502 U.S. 867 (1991)] which prohibits a legal malpractice claim against attorneys after a plaintiff has agreed to a settlement in the underlying case.

2016See Nelson, 806 A.2d at 876 . - 12 - Circulated 12/08/2016 03:01 PM OPINION ~ono, P.J.

2006Kituskie, 552 Pa. at 281 , 714 A.2d at 1030 ; Rizzo v. Haines, 520 Pa. 484, 504-505 , 555 A.2d 58, 68 (1989); Nelson, supra. Therefore, to succeed with a legal malpractice claim, the plaintiff must prove that [s]he had a viable cause of action against the party [s]he wished to sue and that the attorney [s]he hired was negligent in prosecuting or defending that underlying case.

2025See Bruno, 106 A.3d at 70 (requiring breach of contract action to be based on “specific executory promises which comprise a contract.”); see also Meksin v. Glassman, No. 1174 EDA 2018 (Pa. Super. filed May 21, 2019) (unpublished memorandum) (holding that trial court properly dismissed breach of contract malpractice claim where “the allegations implicated [counsel’s] overall exercise of care and professional judgment rather than compliance with the terms of his agreement to provide legal services.”).

2020See also Dougherty v. Pepper Hamilton LLP, 133 A.3d 792, 796 (Pa. Super. 2016) (“A legal malpractice claim based on breach of contract, ‘involves (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages.’”) (citation omitted).

2020McCartney v. Dunn & Conner, Inc., 563 A.2d 525, 528-30 (Pa. Super. 1989).

2017The Rutynas did not do so and the trial court granted summary judgment. 4 “[A] legal malpractice action in Pennsylvania requires the plaintiff to prove that he had a viable cause of action against the party he wished to sue in the underlying case and that the attorney he hired was negligent in prosecuting or defending that underlying case (often referred to as proving a ‘case within a case.’).” Myers v. Robert Lewis Seigle, P.C., 751 A.2d 1182, 1184 (Pa. Super. 2000). 5 Instantly, Attorney Schweers claimed he contacted Dr. Lance Perling, who issued a report concluding that Dr. Donaldson and UP