Abeln, P. v. Eidelman, M.

J. A20010/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

PAUL J. ABELN, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : MARY J.B. EIDELMAN, ESQUIRE AND : No. 1978 EDA 2013 RICHARD HUNTINGTON PEPPER, : ESQUIRE :

Appeal from the Order, June 26, 2013, in the Court of Common Pleas of Lehigh County Civil Division at No. 2009-C-6037

PAUL J. ABELN, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : MARY J.B. EIDELMAN, ESQUIRE AND : No. 2573 EDA 2013 RICHARD HUNTINGTON PEPPER, : ESQUIRE :

Appeal from the Judgment Entered September 6, 2013, in the Court of Common Pleas of Lehigh County Civil Division at No. 2009-C-6037

BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 23, 2015

In these consolidated appeals, appellant challenges the June 26, 2013 order which entered summary judgment against him in his legal malpractice

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actions against two lawyers who represented him in his divorce and child custody proceedings.1 According to appellant, the negligent representation of these two attorneys resulted in diminished custody of his child. We affirm.

Appellant raises the following issues on appeal:

A. Controlling precedents of both this Court and the Pennsylvania Supreme Court leave no doubt that the Trial Court erred in granting summary judgment to Eidelman on grounds that Abeln’s malpractice claims were legally barred by his acceptance of a brokered child custody settlement.

B. Whether, at the time that Abeln agreed to the November 2007 custody settlement, Eidelman was still his attorney is of absolutely no consequence to the viability of his legal malpractice claims against her.

C. The Trial Court erred in concluding that “there was no evidence [in the record] * * * of pressure or of anything improper by Appellee Eidelman to show that [Abeln] was forced or tricked into accepting the custody arrangement in the November 19 [2007] agreed [custody] order.”

D. The Trial Court erred in concluding, in reliance upon a nonprecedential Supreme Court decision and dictum in a case of this Court, that, because Abeln followed Pepper’s advice,

1 The other order under appeal is a September 6, 2013 order granting Attorney Pepper’s counterclaim for counsel fees. A prior appeal of the summary judgment in favor of Attorney Eidelman was quashed by this court on April 10, 2013, as interlocutory, apparently because this counterclaim was still pending. The September 6, 2013 order concluded all actions against all parties and has rendered the prior June 26, 2013 order final and now appealable.

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to submit to a negotiated rather than adjudicated determination of his child custody rights as part of a broader litigation strategy, Pepper’s exercise of professional judgment legally precludes Abeln’s legal malpractice claims against him.

E. Abeln’s statements to the Trial Court, to Pepper, or for discussion with his treating psychologist, as to the reasons for his acceptance of the adverse, January 22, 2008 custody stipulation, cannot be deemed binding judicial admissions that permit the Trial Court to conclude, as it did, that Abeln’s actions had been voluntary rather than a product of Pepper’s negligence, because Abeln’s mitigating explanations for these statements, in his deposition testimony, create an issue of fact that only a jury can properly decide.

Appellant’s brief at i.2

We find no error with the trial court’s holding. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the trial court, it is our determination that there is no merit to the questions raised on appeal. The trial court’s thorough, 18-page opinion, filed on January 25, 2012, as well as the two separate Rule 1925 opinions filed September 19, 2013, and November 8, 2013, respectively, comprehensively discuss and properly dispose of the questions

2 These issues are taken from the table of contents of appellant’s brief. The brief contains a separate page listing the questions presented, but the argument section of the brief follows the issues presented in the table of contents. Consequently, we will regard the table of contents as the statement of issues.

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presented.3 We will adopt those opinions as our own and affirm on that basis with the following additional analysis.

In Issues A and D, appellant questions the continuing viability of our supreme court’s decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991), cert. denied, 502 U.S. 867 (1991), which holds that a client cannot maintain a legal malpractice action against an attorney where the client agreed to the settlement of his or her claim unless the settlement agreement was fraudulently induced.4 Appellant argues that Muhammad “has virtually no remaining precedential value,”5 because the supreme court subsequently restricted the holding in that case to its unique facts, citing McMahon v. Shea, 688 A.2d 1179 (Pa. 1997).

Appellant has greatly exaggerated the effect of the McMahon decision. While the McMahon majority purported to restrict Muhammad to its facts, we note that the McMahon “majority” was not even a plurality decision. Rather, McMahon was the product of an equally divided, six-member supreme court. In point of fact, the three-member “minority”

3 Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A. 4 Issue A raises this claim as to Attorney Eidelman while Issue D raises it as to Attorney Pepper. We note that Issue A is waived as this matter was not directly raised or fairly suggested in appellant’s statement of matters complained of on appeal pertaining to Attorney Eidelman. See Pa.R.A.P., Rule 1925(b)(4)(vii). 5 Appellant’s brief at 27.

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concurred in the result, but specifically objected to limiting Muhammad to its facts. McMahon, 688 A.2d at 1182-1183. Consequently, McMahon did not serve to limit Muhammad to its facts, and Muhammad remains as controlling precedent until a true majority of the supreme court rules otherwise. The trial court correctly found that appellant’s malpractice action against Attorney Pepper was barred by Muhammad because the Complaint failed to allege fraud in the inducement of the settlement agreement to which appellant consented.

In Issue B, appellant argues that it is of no consequence whether Attorney Eidelman was still representing him at the time of the November 19, 2007 custody hearing. We agree with the trial court that appellant’s abrupt firing of Attorney Eidelman on November 16, 2007, insulates her from a claim of legal malpractice predicated upon the consent agreement that issued from the November 19, 2007 hearing.

Much of appellant’s complaint against Attorney Eidelman for malpractice stems from a negative psychological evaluation of appellant prepared by Dr. Phillip Nastasee. Appellant argues that Attorney Eidelman was negligent in failing to meet with him and prepare him for Dr. Nastasee’s examination, in failing to seek to obtain Dr. Nastasee’s work papers, and in failing to obtain an independent psychology expert to counter Dr. Nastasee’s report. (Appellant’s brief at 32.) First, Attorney Eidelman cannot be deemed negligent for failing to help appellant prepare for a psychological

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examination. While Attorney Eidelman may be considered a legal expert, she has no training in psychology and had no expertise to impart to appellant for a psychological examination. Second, as to the other alleged failings as to the Nastasee report, we remind appellant that he and Attorney Eidelman did not receive the Nastasee report until November 14, 2007. When appellant fired Attorney Eidelman only two days later, he rendered it impossible for Attorney Eidelman to take any further remedial actions.

Appellant also asserts that Attorney Eidelman was negligent in preparing, but not filing proposed findings of fact and conclusions of law and in failing to request a continuance of the November 19, 2007 custody hearing. Again, appellant fired Attorney Eidelman three days before the custody hearing, thereby preventing her from taking the aforementioned actions. Moreover, the trial court states in its opinion that Attorney Eidelman was excused from further representation shortly after the November 19, 2007 hearing commenced. (Trial court opinion, 1/25/12 at 4.) The court also indicates that both the court and appellant’s wife were willing to continue the hearing until January 22, 2008, so that appellant could secure the services of a new lawyer. (Id.) Nevertheless, acting pro se, appellant suggested the new custody arrangement of which he now complains. (Id.) This is simply not Attorney Eidelman’s fault.

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Appellant also cites other examples of Attorney Eidelman’s negligence such as failing to prepare witnesses he had provided her, and taking a family vacation shortly before the custody hearing. Again, appellant’s firing of Attorney Eidelman prevented her from preparing any witnesses. As the trial court indicates in its opinion, the eleventh hour release of the Nastasee report essentially mandated a continuance of the November 19, 2007 custody hearing. (Trial court opinion, 1/25/12 at 9.) Had appellant not fired Attorney Eidelman, presumably the case would have been continued and she could have prepared witnesses for trial. This would also have dissipated any failure to prepare attributable to taking a family vacation.

Finally, we distinguish one of the cases appellant cites in support, White v. Kreithen, 644 A.2d 1262 (Pa.Super. 1994), appeal denied, 652 A.2d 1324 (Pa. 1994). In White, the appellant fired his lawyers in a medical malpractice action because he felt they were not adequately preparing for trial. Appellant alleged in his ensuing legal malpractice complaint that the attorneys subsequently interfered with appellant’s ability to secure new counsel by refusing to transfer appellant’s file and by demanding unreasonable referral fees. Consequently, appellant had no counsel prior to trial. At a conference before the Calendar Judge, appellant was forced to accept an unfavorable settlement rather than immediately proceeding to trial without counsel.

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The focus of the White decision was actually its finding that Muhammad did not apply to bar appellant’s malpractice action because the settlement agreement was not negotiated by appellant’s attorneys. We are not finding that Muhammad applies to bar the malpractice action against Attorney Eidelman.6 However, to the extent that White suggests that a legal malpractice action may be maintained even where the attorney has been fired and the client subsequently accepts an unfavorable settlement, we note a critical difference with the instant situation. There is no allegation or indication that Attorney Eidelman interfered in any way with appellant’s ability to secure new counsel. Moreover, as noted, the trial court stated in its opinion that it was aware that appellant was in the process of obtaining the services of Attorney Pepper and was willing to continue the hearing to afford him the ability to retain Attorney Pepper. Appellant’s decision to enter the new custody settlement at that time without counsel was purely of his own volition and cannot be attributed to any negligence or intentional interference by Attorney Eidelman.

Accordingly, we will affirm the orders entering summary judgment against appellant and entering judgment against appellant as to Attorney Pepper’s counterclaim.

Order of June 26, 2013 affirmed.

Judgment of September 6, 2013 affirmed.

6 As noted earlier, that issue was waived.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/23/2015

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IN THE COURT Oli COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

CIVIL DIVlSIO~

PAUL J. ABELN.

Plamtiff No. 2009-C.6037

v. (Superior COlm No. 19711 EOA 2013)

MARY J. B. ElDELMAN, ESQUIRE,and RICHARD I-fUl.:TINGTON PEPPER, ESQUIRE ,

Defendants

Appearances: ... ... . .. . . ... ...

Richl.lrd L. Caplan, Esquire. on behalf o f Pl ainli rr/Appellanl, Paul J . Abeln

Pau l C. Troy. Esquire, on behalfof DefendantlAppcllee, Mary J, B. Eidelman, Esquire

.............. WILLI AM E. FORD, JUDGE

Pa .R.A.P. J925(a} 0 P I N' JO N

This is a Jcgul mulpracticecase in which Plaintiff/Appellant, Paul J. Abeln, brought suit against Defendant/Appellee, Auomey Mary J. 8. Eidehnan, and Attorney Richard Huntington Pepper who is not a party 10 this Ilppes!. I granted de fense motio ns for summary j udgment d ismi ssing the claims against bOlh attorney defendants AppcJlant Abeln flied the present appeal fro m my granting 1he motion for summary Judgment in favor of Appell ee Eidelman.

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The basis fOT this legal malpractice action is cll<;(ody case, Paul J. Abeln v, lIeidl C. Noll, Lehigh County number 2007-FC·0427 ("the custody case"). In Ihis malpractice suit, Appellant claims that each of the attorney defendants by their consecutive- representation in the custody case was responsible for climinishing through court orders his custody rights 10 Paul Christopher Abeln, the child lhat he has with lleidi C. Noll ("Mother").

Appellant Abeln presents several Iu-gllments in this appeal in support of his position that I mistakenly enlered summary judgJTlent against him in favor of /\ppellee Eidehnan. Each of his contentions lacks merit.

Pertinent Procedural History

This malpractice suit was brought on November 13, 2009. After discovery, each attorney defendant tiled a motion for swnntary judgment on September 1,2011. I granted the Illotions for summary judgment in favor of the attorney dcfimdants and against Appellant on January 25, 2012. The judgments were not appealable because Attorney Pepper, who is not involved in this appeal! had an wlresolved counterclaim for counsel fees filed unde.r this same case number. (On September 6, 2013. judgment was entered in favor or Attorney Pepper and against Appellant on the counterclaim. Appellant appealed that j udgment on the coumerclaim and the summary judgment in favor of Attorney Pt':pper on September 10,2013, which appeal has not yet been assigned a Superior Court docket number.)

On November 6, 20 12, I entered an order granti.ng Appellee Eidelman's uncontested motion to sever the claim brought against her irom the claim brought against Anomey Pepper.

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On December 5, 2012. Appellallt Abeln med a notice of appeal to the Superior Court ofPenl1sylvania " from the Order entered in this matter on the 25 th day of January, 2012, granting summury Judgment in [livor orlhe defendant, Mary 1. B. Eidehnan." This appeal received the Superior Coun docket number 3368 EOA 201 2.

Because oftbe November 6, 20 12. se.vering of the claims brought against Appellee Eidelman from the claims brought 3.gainst ALtomey Pepper, it appears thaI the appeal docketed at 3368 EDA 20 12 \vas a timely chal1enge to the summary judgment granted in favor of Appellee Eidclnum on January 25, 2012. Any appeal nfthe summary judgment before tbe severance order would have been interlocutory

Unfortunately, in my Memorandum to thc $ upcrior Co urt riled on January 22,2013. ( gave the S uperitlr Court incomplete information nbout the record in the lower court to that point. I f"iled til mention and then address the significance of the severUDce order of November 6, 2012, Perhaps guided by my Memorandum, the Superior Court quashed this appeal "sua t.poil/t? HS interlocutory" by order da tcd April 10, 20J3. I now believe t1ll1t Appellant was entitled to a suhstantive review by the Superior Co urt of the ~ umm ary judgment order in his c;lrlicl' appeal. To correct this error, which Jpl'obnbly am n:sponsible!ol' creating, I respectfully suggest tlllIt tliere should be.a subs lanllve review by tbe Superior C(l UI·t in tbe present proceedings.

Unnecessary evcnts in the {rial court followed the dismissal as mterlocutory of Appellant's earl ier appeal . A redundant judgment was taken by Appellee Eidelnmn on June 7, 2013 . It was redundant because lhc summary judgment entered on January 25, 2012. was a fi nal o rder as to Appellee Eidelman after entry of the November 6, 2012,

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severance order. See .f'cidJer v. Morris COl/pli/lg Co., 784 A.2d 8 12 ( Pa.Super. 2001). 'nlcre was au Wlsuccessful effort to sci aside the redundant judgment which ended with an order on June 28. 2013. Appellant then filed the current notice ofappcaJ o n July 5, 201 3, from the order grn.llling summary judgment for Appellee Eidt!lman . This Cllrrent appeal received the present Superior Coun docket number 1978 EDA 201 3.

O n July 24, 20 13, in response to an earlier order, Appellant filed a statement under Pa.R.A.P . 1925(b) ("Concise Statement"). In his Concise Statement, AppelJant alleges five errors. They cover the same subjeclS that were raised in the December 5, 2012, notice of appeal. [now address each alll!galioll in tbe Concise Statement.

The Granting of Summary Judgment

The first claim of error is the esscnct: of this appeal. It reads:

Did the trial court err in granting summary judgmcllt to Eidclman (Appellee) upon Abeln 's (Appe llant) legnl malpractice and breach of contract claims, on grounds that (i) Eidelman no longer represented Abe ln, when Abeln nccepted !l reduced share of physical custody of his o nly son, and (ii) Abeln, as a pro se litigant, approved an unfavorable, negoliated child custody agreement, when th~rc is ample evidencc in the record that this interim settlement agreement was forced upon Abeln by Eidelman's professional negligence, while still his attomey?

According to Appeltanl, it was improper for the court to grant SUmmary judgment for Appellee Ei delman on the legal malpractice claim against her because she was responsible for dim.irushing Appellant's custody time with rus child througb the agreed order of November 19,2007 . Summary judgment was properly granted in favor of Appellee Eidelman for two reasons. rirsl, as the rec.ord establishes, Appellee Eidelman

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had been dismissed as Appellant's counsel before the AppcUam. acting pro se. reached the November 19, 2007, agreement with Mother. Second, the record established that the November 19, 2007, agreed order was entered knowingly and voluntarily by Appellant. There was nothing in the record 10 establish that "this interim settlement agreement was forced upon (Appellant) Abeln by (Appellee) Eidelman's profess ional negligence, while she was still Ius attorney" despite Appellant'S contention thai il was forced on him .

Appellant hired Appellee Eidelman as his attorney on Murch 29, 2007, to pursue a diVorce from Mother and to obtain physical and legal custody of the child, Paul Christopher. Appellee Eidelmun filed the custody case on March 30, 2007.

On March 24, 2007, Mother secured nn order from a magisterial district judge against Appellant under Pennsy lvania's Protection from Abuse Act (PfA) at an ex parfe he3ring. Under the terms oflhat order, Appellant was evicted rrom the manlru residence in Lehigh County. -nlC order provided that it would expire at the end of the next business day unless further action was taken by Mother. Mother pennitted the ex parte order to expire. However, after Mother secured the ex parle order. without notice to Appel/ant, she took the child. Paul Christopher, \l.-1lh her to Arizona where she had lived before Ihe marriage.

On April 5,2007, Appellee Eidelman filed a petition for emergency relief under the custody case number on behalf of Appellant 1n the petition, Appellant sought the immediate return of Paul Christopher to I'ellnsyivania. Appellant also sought "temporary pdmary physic~1 custody" or Paul Christopher.

On the same date. April 5. 2007, ata hearing in Lehigh County Court with Appellee Eidelman and both parents present. the petition for emergency relier was resolved by agreement. Under the agreement, Appellant was made the primary physical custodian

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of Paul Christopber. Mother was given visitation with the cbild for a minimum of three hours pcr day. The panies agreed that these proviSions would be temporary. Additionally, Mother indicated she would withdraw a protection from abuse case she had filed in Arizona.

On ApdJ 24, 2007, Mother filed a petition in the custody C3se for shared legal and physical custody of Paul Christopher. A hearing was held on May 2, 2007. Appellee Eidelman represented Appellant at the May 2 hearing. Under the agreed order entered that day, the parents would share lega l custody of Paul Christopher. Appellant relllllined the primary physical custod ian of the child and Mother received increased partial physical custody rights. The parties agreed that a psychologist would do an evaluation of the panies. A custody trial was scheduled for November 19,2007.

Accordi ng to the complaint in Ule presenllegal malpractice complaint, Appellant and Appellee Eidelman did not receive a copy of the psychological evaluat.ion until November 14. 2007 . On "November 16, 2007. Abeln (Appellant) fired Eidelman (Appellee) as his attorney for incompe1ence, via e-mail, and asked her to request a continuance of the trial and to contact his new attorney, Pepper, prior to November 19." (paragraph 24 , Complaint.)

TIle Honorablt: Maria L. Dantas convened court in the custody ca.se on November 19, 2007. Appellee Eidel man presented a petition to withdraw as counsel for Appellant based on the November 16 e-mail Appellant sent her. Judge Dantos granted that petition. Then, by agreement, the trial was continued to January 22. 2008, so Appellant could have the opportunity to secure the services of Pepper. Also on November 19, 2007, after Appellee Eidelman was excused from further representation, Appellant, acting pro se,

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agreed in a fuIJ record colloquy with Judge Dantos to another interim custody arrangemenl wht:reby he and Mother would share legal and physical custody of Paul Chnstopher.

II would have been improper for Appellee to give her input about the wisdom of the Novembtr 19 agreed order or to provide advice for Appellant as the agreement was being stated. Appellnnt had not yet secured the services of hi s next attorney so he was on his 0\\011- by his choice - when the agreement was reached. The record of that hearing demonstrotes a complete setting forth of the agreement and Appellant's acceptance of it

As a general rule, a litigant is nOI permitted to agree to a settlemem and s ubsequently bring- a malpractice su it against his attorney based on the terms of the settlement. Muh(llllmad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346, 1348 (1991). The Superior Court bas held that MuJwmmadprecJucJes a malpractice action where (I settling client merely alleges that settlement resulted from "a deficiency In the lawyer's exercise of his or her professional judgment." McMahon v. Shea, 441 Pa.Super. 304, 313, 657 A.2d 938,942 (19')5). Conversel)', a malpractice suit stemming from a seUlement m~y proceed where a litigant shows thai the settlement resulted from fraud or from the attorney's failwe to correclly explain legal principles or the consequences of the settlement to the litigant. Jd

From the record developed through discovery, there was no evidence of fraud or of pressure or of anything improper by Appellee Eidelman to show that Appellant wus forced Or tricked into liccepting lhe custody arrangement in the November 19 agreed order or the two earlier agreed orders. Further, there was no evidence of inaccurate advice or the creation of unattainable expectations planted by Appellee Eidelman. Thus, under Afuhammad and its progeny, Appellant was properly precluded from proceeding with the

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malpractice case against Appellee Eidelman.

1be second allegation of error in the Concise Statement reads:

Did the trial CQur1 err i ll granting summary judgment 10 Eidelrnan on grounds that Abeln's request for damages, attributable to his forced rel inquishment of some physical cu stody of his child due to Eidelman's professional negligence, was tanlamollDt to a legally foreclosed drum for emotional distress damages, where the recoverability of such damages is a legal issue of first impression in Pennsylvania, and to summarily preclude such damages would vitiate meaningful claims for legal maJpractice in most, ifnot all, child custody cases?

One of the arg uments made by Appellee Eidelman in support of her mOlion for sumll1..8ry judgment was that Appellant Abeln could not prove dama~e s. However. the dam~e issue was nOI a ba... is for the entry of summary judgment

Appellant's third allegation of error in the Concise Statement asks:

Did the trial court err in gnuuing Eidelman's motion to sever her case from thai of COM de rend ant ... without making "an express detennination that an immediate appeal would facilitate resolution of the entire case," where the trial court's termination of Abeln's case against Eidelman alone, while Pepper's counterclaim against Abeln had yd to be adjudicated, violated PaR.AP. 34 I (c) and was entered without affording Abeln an adequate opportunity to be heArd in opposition?

Appellant is incorrec t in his assertion that the severance order should be analyzed under Pa.RA.P. 341(c). Rather, in rulin&on the motion, I properly appJieJ Pa.R.C .P. 2 13(b) which Slates:

The court, in furtherance of convenience or to avoid prejudice, may , on its own motion oron motion orallY party, order a sepamte trial of any cause of action, claim, or cOWlterclaim, set-off, Or cross 5uit, or of any separate issue, M

or of any number of causes of action, claims, cOlUuerciaims, set~oITs, cross-suits, or issues.

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Appellee Eidelm.m sought the severance of the claims against her from the claims that Appellant brought against Anomey Pepper for several reasons. With the granting of summary judgment on January 25, 2012, in favor of Appellee Eidelman, there were no further claims by Appellant pending against her in lhe trial court so she wanted the case 10 end. It could not end v.lithout severance from the Pepper claims because Pepper's counterclaim was still pending. Appellee Eidelman also sought the severance because of concerns with her malpractice insurance carrier about an active Jaw suit agwnst her. Third. sbe wanted to pursue n Dragol1f!lli action against Appellant Abeln. With these reasons in mind, Appellee Eidelmnn was able to demonstrate that the motion should be gntoted in the interesl of convenience and avoidance of prejudice to her. She met the standard for severance of claims. The record shows that AppeJtee Eideiman gav~ notice of the presentation of her severance motion. that AppeUaol did not appear to oppose it and tbar there was no la ter challenge to the SeVer3111.:e order through a motion for reconsideration.

The fourth contention of error reads: "Did the trial abuse its discretion in denying Abeln's motion ;n limine ro exclude at trial evidence of his mental heallh treatment, during the pendency of the child custody case?" The motion in /imine was filed on October 12, 2011. It became moot when summary judgment WItS entered for Appe ll ee. {fsummary judgment was properly emcred for Appellee, there would be no trial so there was no need for a molion in limine.

The final issue posed by Appellant Abeln is: "Did the trial court err in denying Abeln's molion to vacate lhe judgment entered in favor of Eidelman Gudgrnent entered on June 7, 2013). where the severance ofber case from thc.t of her co-dcfcndant Pepper had

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been erroneously or improvidently granted,!" As I have said, the judb'lncllt that Appellee Eidelman took. on JUlle 7, 20 13, was utmecessary because the summary judgment entered on January 25.2012, became a final order after entry of the November 6, 2012, severance order. Therefore, the mOlion to vacate the redundant judgmcm probably should have been granted. The severing of the claims against the two aUorneys was proper for ule reasons thaI [ have staled . The matters raised by Appellant under this last claimed error do not alter the fact tlml the Superior Court should now examine whether I properly entered summary judgment for Appell ee Eidehnan, For the reasons stated above, it is respectfull y submitted that tbe entry of summary judgment was proper and that this appeal should therefore bedc lli ed.

September 18, 2013 ~~, LIAM E. FORD, JUOGE

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IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

CIVIL DIVISION

PAUL 1. ABELN,

Plaintiff No.2009-C-6037

(SuperiorCoUl1 No. 2573 EDA 2013)

MARY 1. B. ElDELMAN, ESQUIRE, and RJCHARD HUNTINGTON PEPPER, ESQUIRE,

Defendants

-' = .............. '""" CP- -n Appearances: 0 , ""eo r- -rn Rkhard L. eaplall. Esquire, ."

on behalf ofPlainti fl7Appellant, Paul J. Abeln '" 0 '" Arthur w. Lefco, Esquire, '"'" on behal f of Defendant/Appellee, Richard Huntington Pepper, Esquire

W[LLlAM E. FORD, ruOGE

Pa.R.A.P. 1925(0) 0 PIN ION

This is a legal malpractice case in which Plaintiff/Appellant, Paul 1. Abeln. brought suit against Defendant/Appellee, AUomcy Richard Huntington Pepper, and Anomey Mary .I. B. Eidclman who is Flat a party to this appeal before the Supe.rior Courl of Pennsylvania. I granted defense motions for summary judgmenl dismissing the claims ngains\ both sHorney de fendants Appellant Abeln filed tne present appeal from my granting lhe motion for summary Judgment in favor of Appellee Pepper,

/1.1

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Case Histon

This legal malpractice aClion arises from i\ custody case, Palll J Abeln v. Heidi C. Null, Lehigh County number 2007·FC-0427 ("the custody case"). In this malpractice !;iuit, Appellant clrums that each of the attorney defendants by their consecutive reprcscnr3tion in the custody case wns responsible for diminishing through court orders his custody rights to Paul Christopher Abeln, the child that he has with lleidi C. Noll (,'Mother").

Appellant commenced this malpractice suit on November 13.2009, by filing a praecipe for writ of summons. Thereafter, Appellant filed a complaint on January 22, 2010 . Aller discovery, each attorney defendant ti led a motion for summary judgment on September I. 201 L I granted the motions for summary judgment in favor of the attorney defendants and against Appellant on January 25,2012. The judgments were not appealable at that poilll because Appellee Pepper had an unresolved cottnlercluim for counsel fees filed under this same case number.

On November 6, 2012, I eOiered an order granting Attorney Eidelman's uncontested motion to sever the malpractice claim brought against her from lht! malpractice claim brought against Appellee Pepper. Appellnnt Abeln filed a notice of appeal to the Superior Court from [he January 25, 2012, order granting summary judgment in favor of Attorney Eidelmao. That appeal is pending at Superior Coun docket number 1978 EDA2013 .

On September 6, 20 13,judgment was entered in favor of Appellee Pepper and 3g3mst Appellant on Pepper's counterclaim lor counsel fees which Pepper filed in response 10 Appellant's malpmctice complaint. On &'j)tembcr la, 2013, Appellant appealed the judgment on the counterclaim and the slumnary judgment in favor of

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Appellee Peppcr on the malpractice allegations. This is the present appeal and it is assignc.d Superior Court docket number 2573 EOA 2013. In all order dated November I, 2013, the Superior Court consoJid.1ted the two appeals.

On October 1,2013, in response to an earlier oreier, Appellant filed a statement under Pa.R.A.P. 1925(b) ("Concise Statement") in which he sets forth four numbered claims aferrar in the present appeal at 2513 EDA 2013. Ench challenges the granting of summary judgment for Appellee Pepper.

Discussion and Conclusion of I.&w

To properly evaluate Appt= lIant's claims of error, it is necessary to understand the history of Appellee Pepper's representation of Appellant in the underlying custody case.

Appellant's first a1l0mcy in the custody case was defendant, Attorney Eidclman. Appellant retained Attorney Eidclman on March 29, 2007. With that attorney's assistance, Appellant Abeln obtained two agreed imerim orders for custody ofbis son.

On November 16,2007, Appellant fi rst consulted Appellee Pepper. (paragrapb 21, complaint.) On the same date, "Appellwlt fired Eidclman as his altorney for incompetence. via email, and asked her to request a continuance of lhc (custody) trial (scheduled for November 19, 2007) and to contact bis new anomey, (AppeHant) Pepper, prior to [the custody lrial] ." (paragraph 24, complaint.) Despite this last statement, Appellant did not execute a written retainer <l,grccmcnt with Appellee Peppcr until December 3, 2007. (Paragraph 32, complaint.)

On November 19, 2007, when the case was called for trial, the court excused defendant Eidelmau from further represCnlnlion at Appellant's request. Appellee Pepper;

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who was not yet retained and was only first consulted on the Fliday before this Monday court date, did not appear in Court on November 19. By agreemem, the trial was continued to January 22, 2008 . Mother, lluough her attorney. indicated she was prepa.red on November 19 to proceed to trial, bUllhe cou~ gave Appellant the opportunity to secure the services of Pepper lor the trial. Appellant, acringpro .Ie, agreed to anoi.hef interim custody arrangement whereby he and Mother would share legal and physical custody of Paul Christopher. (Appel lant subsequently sued defendant Eidelman under the present case number alleging she committed malpmctice and was re~"J>Onsible for the terms of this order ag.reed by Appellant even though Eidelman had been fi red as call1lsel before this agreed order was entered .)

Appellant Abeln and Mother appeared in court on January 22, 2008, for the rescheduled tri;:li . Appellee Pepper represented Appellant Abeln and Mother also bad counsel , Another agreed order was entered This is the order which Appellant attributes to malpractice by Appellee.

Under this agreed order, the parents shared legal custody of Paul Christopber. Mother was designated as the primary physical custodian. Appellalll WllS given partial custody rights. The lengthy agreement of the parties was set forth on the record before the Honorable Maria L. Dalltos on January 22, 2008 . At one point during tbe prc~'entntion of the agreement. there was an interruption when Appellant Abeln and Appellee Pepper spoke privately. At a later point during the proceeding,s, Appellant, through Pepper, clarified that the parties would be fo llowing, in reg".d.rd to counseling and a parenting coordinator. recommendations found in a written custody evaluation made part of the record (hal date and prepared by a psychologist, Doctor Phillip Nastasee. Appel lee Pepper stated that

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Appellant was noting his disagreement with other significant aspects of Doctor Nastasee's report. Doctor Nastasee's report resulted from an ag.reement of the parties made months earlier that they would pay him to do a custody evaluation of this family . Both parents stated their agreement to the terms of the custody arrangement reached on January 22, 2008, in response to questions by Judge Dantos before she entered the agreed order which resolved all issues for which trial was to be conducted.

Appell ant perceived the Nastasoe report as unfavorable to him. He ciaims in the pt"esent suit that Appellee l'cpper was professionally negligent in not challenging the Nastasee repon at the January 22, 2008, trial. Specifically, Appellant contends that Pepper should have hired an opposing psychologist to critique the Nastasce reporr. ln~1.cad , according 10 Appellant, "Pepper recommended to Abelll lh81 they exploit a strategy of delay to allow the (r]eport to become stale and then request n new evaluation. " AppeJlee Pepper, with Appellant's l.'onsent, followed through on this strategy by filing a petition for modification of custody on March II, 2008, and by filing the " Petition for Psychological and Mental Examination of Panics" on September J 6,2008 .

tn this petilion for a second evaiuat.ion, Appellee Pepper asked thai the court direct the parties to u.ndergo u psychological evaluation by Steven E. Samuel, Ph.D .. Appellee Pepper filed a memorandum in support of his petition . Pepper represented Appellant Abeln at the October 8, 2008, hearing on the petition. Pepper brought Doctor Samuel to the hearing. No one rcstified at the hearing over which I presided. I granted the pt:tition for Ihesecond evaluation based on the arguments of coun~l.

On October 16. 2008, Mother, acting pro Sit, filed n mOlion for reconsideration of the order seuing up the evaluation by Doctor Samuel. After argument on this motion. J

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entered an order dated November 13,2008. granling reconsideration. Tn mal order, I rescinded the order ofOciober 8, 2008, so that Mother ilnd Appellant Abeln were no longer compelled to undergo an evaluation by Doctor Samuel. 1 indicated that the October 8, 2008, order " is r~cindcd without prejudice LO plaintiff (Appellnnt) to renew his motion for psychological evnluation at the appropriate time during the trial in this case."

On January 28, 2009, I entered an order granting Appellee Pepper' s petition to wilbdrawas counsel for Appellant Abeln . According to Paragraph 3 of the petition, Appellunt had not paid Appellee for services rendered and Appellant and Appellee had philosophical differences about the handling of the custody case. On February 13, 2009, Attorney Stephen J. Anderer entered an appearance 011 behalf of Appellant.

Mother filed a petition for re(ocatioo to Arizona 00 January 16, 2009. That and Appellant's petition for modification were heard at the trial which was conducted in Mareh and April . 2009, before me. Attorney Aoderer represented Appellant at that custody uiaL Mother was also represented by coWlSel at the trial. Altorney Anderer, in his trial preparation and at trial , did not renew the request for M. evaluation of the parties by Doctor Samuel. On May t 8, 2009, aller trial, J entered an order mandating tbat Appellant Abeln and Mother jointly share legal custody and equally exercise physical custody of their child.

With the above history in mind, 1 now turn to the four allegations of error raised by Appellant in hjs Concise Statement.

In the first allegation of error, Appellant Abeln Ilrgucs that r improperly granted summary judgment in favor of Pepper under the Mllhammadv. Strossburger, 5261'a. 541 . 587 A.2d 1346 (1991),lUld McMahan v. Silea, 441 Po.Super. 304, 657 A.2d 938 (l995) cases. 1 found that, as a m.atter of law, summary judgment had to be entered for Appellee

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Pepper because the alleged negligem conduct against Pepper stemmed from the custody order of January 22, 2008, entered with Appellant's agreement without any evidence of coercion or other improper action by Pepper. My decision was correcl

This is Appel lant's al legation against Appellee Pepper that Appellee forced him 10 reach an agreement embodied in the Jlll1uary 22. 2008, order which cut into Appellant's custody time with his child:

Pepper unfairly pressured Abeln into accepting au unfavorable settlement, of the custody issue that would ()then.'Iise have been resolved at trial, by both failing to adequately prepare to effectively advance Abeln's interests at the trial and by repeatedly advislng him that, in the absence of a settlement, tbe tenor of the (Nastasee) report and the inexperience of the judge virtually bruaranteed that Abeln would lose what little physical custody of Paul he and his son enjoyed .

(Paragrap h 66(c). complaint}

As a general rule, a litigunt is not pennitted to agree to a settlement and subsequcntly bring II. malpractice suit against his II.ttorney based on tile temlS of the sealemenL Muhammad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346,1348 (1991). The Superior Court hus held that Muhammad prechldes a malpmcticc action where a settling client merely alleges that settlement resulted from "n deficiency in the lawyer's exercise of his or her professional judgment." McMahon }I Shea, 441 Pa.Su~r. 304, 313, 657 A.2d 938, 942 (1995). Conversely, a malpractice suit stemming from a settlement may proceed where a litigant shows that the settlement resulted from fraud or from the attorney's failure to correctly explain legal principles or the consequences of the settlemcnt 10 the litigant. Id.

In the evidence presented through discovery, Appellee Pepper, upon review of the

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NnSHlsee report, concluded that Fnthcr would attain n more favomble custody arrangement through settlement tban through trial. Instead of directly attacking the Nnstasee repon, Pepper advised Appellant that the better course of action was to reach a custody arrangement with Molller at the scheduled trial on Jnnuary 22, 2008, allow the Nastasee repan to lose its effect Ovcr time, work on personality issues through therupy, scc.:ure a second evaluation orlhe partics and then anempt to get a better custody orrangcmcnl in a subsequent proceeding. Appellant accepted tb.is strategy and then AppcUunt and Appellee worked to implement it.

Appellant Abeln now contends (hal the January 22, 2008, agreed order te~ultcd from Pepper's flawed strategy of not impel1ching the Naslasee report, pursuing the senlemcnt option und then bringing litigation Inter oncc a more fnvornble psychological evaluation was obutined. Appellant does not allege thol he entered the January 22,2008, agreement as 11 result of frllud or Pepper's failure lO correctly explain to Jilin the pertinent legal principles or the consequences of the agreement While Appellant contends that he was coerced into the agreed order, examinntion oflhe evidence developed through discovery reveals thut Appellun! is octually claiming "a deficiency" in Pepper's "exercise ofhis professionuljudgment" in pursuiog ooe iitigulion Strategy over another. As tbe Superior COW1 noted in McMahon v. Shell, the Muhammad rule uperotes to preclude malpractice suits where a litigant claims his unfavorable settlement resulted merely from his lawyer's exercise of professional judgment. Thus, these malpractice claims asserted by AppclhlOl arc precluded as a matter of Jaw.

FUrther. Appellant gave his infonned consent to the agreement entered on Jll11uaJy 22,2008. The record from me hearing reveals 8 setting forth of the specifics oflhe

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custodyagreemenL At onc point, as the agreement was being sel forth, Appellant inteljecled his comment that he felt tbe transportation provisions for Paul Christopher wem too broadly stated and that there was conflict in the transportation provisions. N.T., 1/22/08, p. 7. Later in the hearing, Appellant responded to a question by the judge that he understood provisions regarding any planned removal of the child from Pennsylvania. NT., 1122108, p.20. Finally, Appellant gave his approval to the custody provisions put on the record by the nltomeys. N .T. , l/22108, p. 23,

Appellant's statement in his complaint (Paragraph 66(c» that he was "unfairly pressured" by Pepper to enter into the January 22, 2008, agreement is contrary to Appellant's emai l to Appellee Pepper dated December 20. 2007. In it, Appellant staled to Pepper: "If you are successful in getting Zamborsky (Mother'S attorney) & Heidi to discuss n custody arrangement, Twould consider Heidi having title of primary physica l custodian w ith the following visitation schedule (which Father then set rorth)." (The December 20, 2007, email is atlached to Appellee Pepper's motion for summary judgmem as Exhibit G. Appellant admitted sending this email in Paragraph 20 of his reply to Pepper's Illotion for summary j udgment filed on September 29, 2011.) Also, in a statement wbich is part of a document that Appellant prepared entitled "Se1fRepon Progress Note, dated February 20, 2008," Appellant wrote:

1 made the hardest decision of my life on 1/22108 by offering Heidi the title of primary physical custodian, not because she was deserving of it but because I hoped that by giving her what she craved most, that she would stop the hostile actions and start 10 cooperate in a civil, responsIve manner that is in {he best In!erests of our 5011.

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(The progress note is altached as Exhibit S to Appellee's October 24,2011. "Motion to Supplement Summary ludgment Record" (supplemental motion). Appellant has continned the progress note is authentic. See Exhibit 1 to the supplementaL moti on.

Appellant furthc r demonstrated that the January 22, 2008, agreement was his agreement with his testimony on March 24, 2009, during the custody Lrial, in the following exchange:

Q: And why did you agree to the order (stipulated order of January 22. 2008)?

A: Because 1 was very concerned about Nnstascc's report having so many problems with it 1 was concerned that I was gOitlg lO have 11 worse - I was not going to sec my son at all. And I had hoped that if I had given Ileidi what she was craving, that the hostility and aggressiveness towards me would end. and that she would enable us to slart co-parenting in the best interest of our son. And I had hoped, based on the terms of that agreemen!, that we would be able to use co- parent counseli ng and a pareming coordinator to resolve differences and get on better grounds so that in fact we would maximize the amount of time that bmh of us s hared with ou( son.

N.T., 5/24/09, p.1J O.

Thus, under the authority of Mlihammud and McMahon, f properly entered summary judgment for Appellee Pepper.

In hill secoud allegation of error, Appellant claims that I ignored bis ··credible evidence in the record" s upporting the malpractice clai m so that the granting of sum mary judgment wa:- not proper. As to the evidence I supposedly ignored, Appellant points to "the professiona l opinion of a qualified legal maJpmctice expen." This is a reference to Richard A. Katz, Esquire, who authored an opinion letter dated April 29. 20 11 . The

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August 29 letter refers to a March 4, 2010, letter by Attorney Katz. This earlier leiter does not appear LO be part of the record. Appellant also refers to "Pepper's admIssions in deposition"' which are not specified in the Concise Statement. Finally. he refers to Appellant' s own testimony that Pepper' s failure to adequately prepare for a custody trial \vrongrully prevented lum from exercisi ng meaningful discretion" to choose a trial over the settlemem of January 22, 2008. There is also no specificity given as to the fashion in which Appellee Pepper supposedl)' failed to adequately prepare for trial although the Concise Statement, taken as a whole, does make it clear that Appellant faults Appellee Pepper for no! preparing a critique afthe Nastasee report

I have aJrcady commented on Appellee Pepper' s advice not to attack the Naslnsee repon. That entire subject falls under the strotegy advice provided by Pepper (0 Appellant and accepted by Appellan t. As I have already explained,. as a matter of Ja.w, that strategy decision by Pepper cannot be used as a basis for this malpractice claim after it resulted in the agreed order of January 22, 2008. The remainder of these nllegalions in Appel lant'S second claim of error are nol sped tic. I do not know to what aspects of the legaJ malpractice expert's reports Appellant is referring and to what alleged lack of trial preparalion Appellant is referring beyond the NastaSec issue Moreover, all of me legal malpractice expert's opinions and Appellant'S preserved issues appear to go back to the Nastasee issue.

In the third ch.llm of error, Appellant complains that thc court's erroneous rulin& in granting summ ary judgment in favor if Appellee Pepper wrongfully depnved him "of his only viabJedefense to Pepper's counterclaim forattomey ' s fees." The counterchl1m was heard at an arbilration at which no rec.ord was made, However, jfthe court properly

II

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granted summ ary judgment in favor of Pepper. then there is no substance to this al legation of errOr and it should be denied.

The final allegation of error reads:

Did the trial court err in finding no negligence in Pepper's failure to offer testimony of a quwified psychologist, with knowledge of Abeln's wifc's past performonce on certain probative psychological tests, to -support A beln's motion to have the menIal stability of his wife eva luated in order to gain primary physical custody of his child?

A response 10 thls requires a summa ry of what 1 have already stated. The psychological evaluation completed by DoelOT Nastasee before the January 22,2008. agreed order resulted from the decision by Appellant Abeln and Mother to jointly pay for and cooperate in the completion oftllllt report. Second, there was th e strategic decision recommended b y and then made by Abeln oot to have a second psycho logical report completed before the January 22, 2008, agreed order. Third, Appellant Abeln, agreeing with the advice of Appellee Pepper, wai ted a number of months following the agreed order and then filed a mOl ion aski ng the court for a second psychological evaluation to be conducted by Doctor Samuel. The court initiall y granted th3t request and then rescinded the authorization for it against the wishes of both Appellant and Appellee. Fourth, Attorney Anderer, with whom Appellant Abeln apparently has no problem in regard to representation, did not resubmit a request for a second psychological evaluation at any point before or during the trial that occurred in March and April of 2009, despite being given the opportunity to request a second psychological evaluation by the COlirt when it rescinded the authorization for the evaluation by Doctor Samuel. The trial in 2009, \.vhere no additional p sychological evidence was presented, yielded a result that Appellant

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acknowledges was acceptable to him . Thus, there is nO factual dispute that Appellant Abeln was able 10 secure a result acceptable to him in terms of custody wlth his son without any second psychological evaluation.

As the fact·finder and the judge who made the decision at the trial in March and April of 2009, far too OHlch weight is placed by Appellant Abeln on the effect that Doctor Nastasee's report and lestimony had at any point. This was perhaps best demonstrated by the result afthe lrial conducted in March and April, 2009. With these factors in mind, as a matter of law, there can be no merit to the claim that Appellee Pepper was negligcnl for foiling to go beyond what he did to secure a SeoJnd psychological evaluation.

Because the granting or summary judgmeot in favor of Appellee Pepper and ag:linst Appellant Abeln was proper, this appeal should be denied.

November 8, 2013 lAM E. FORD, } E

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TIIE counT IN TIlE COURT OF COMMON PLEAS OF LEIllOR LEIDCR COlil'<TY, COUNTY, PENNSYLVANIA

'I~ CIVIL DIVISION IlNlSJON

,\W PAUL!. ABELN,

P Plaintiff No.2009-C-6037 No. 2009-C-6OJ7

v. t(9' tfY . .., ~ ~ = MARY .I. J. B. EIDELMAN, ESQUIRE, ESQUtRE, and '.'.,, ,. . '- ~

II 1l '" ,- ". RICHARD HUNTINGTON PEPPER, ~ ~ ESQUIRE, \ . . ;, -.-i, ,...;"., ',-, V> U1 I Defendants . - ~ :;: :0: r"lI-~l 0CJ " ~

......... .............. ~

WILLIAM E. !'ORD, FORD, JUDGE

OPINION OPIN IO N

This is a legal Jegol malpractice suit which arises from a Lehigh County cuswdy cust.ody action, action.

Paul Abeln \I, Heidi C. C. Noll, Lehigh County 2007·FC-0427. 2007·FC-0427 . The child, orlhe ch ild, the subject or lhe

cllstody case, is Paul Chri custody Christopher stopher Abeln who was born on August 7. 2006. Paul Pa.ul

Paul J. Abeln (who will be referred to as arc plaintiff herein, Paull. Christopher's parents an:

"Father"), and Heidi Noll Abeln ("Mother"), 'NItD "Father"). party to this maJpraclice suit YAIO is not a part)1 suit.

Attorney Mary J. n. Defendant, Anomey Defendant. R EideJ.rnnn, Eidelmnn. and lhen then defendant, Attorney Richard

reprcscnte:i Father in the custody 3ct.ion. Huntington Pepper, represcnte:i action. Father aJlcges in Ibepresenl tbe present

action that each of these attorneys commined legal malpractice iictiol1lhnt committed professional professional negligence neg!igence

and breach of contract in each t!aCh attorney's respective representation of him in the cuslody

case . case.

oow, NON, bG /pr. -tJ. t.). COPIESOFTHEWlTHINCOURT COPIES OF THE WITHIN COURT OROER ORDER OR OECREE DECREE MAILED MAilED TO AU.INTERE~TED AIl.INTERESTED PARTIES BY' 9\' cW C rjf

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DcfcncU.U1ts filed motions for summary judgment. Because lhere DefcncU.Ults there is merit to the

mOlions, I granr mOlions. grant them and enter judgment for the defendants.

Claims against Claims: agHinst Atlorney Etdclman Attorney Eidclman

father Father hired defendant Eidelmun Eidelman as his attorney on March 29. 2007. 2007, to pursue a

diVorce divorce from Mother and for c~10dy of Paul Christopher. Eidelman filed a divorce fOT custody

complaint on March 30. 2007 . The complaint i.ncluded 30, 2007. included a8 COWlt count for ror primary custody of Paul

The divorce case with custody count was docketed in the Lehigh Christopher. 'me Lehigb County

at 2007-FC0427. Court of Common Pleas fll 2007-FC-0427.

On March 24, 2007, Mother secured an order from a magisterial dislrictjudge

cpr rut ex parle against Father wldcr Pennsylvania's Protection from Abuse Act (PF A) at all pal',e

hearing. Under t he be terms of that order. oCtha! order, Father was evicted from the rhe marital marilal residence in

Orefield, Lehigh CounlY, Pennsylvania. The order provided that it wouJd expire at {he Lehig.h County, the end

oflhe next busi.ness oflhc ul.lless further action were tuken business day wllcss taken by Mother. Mother permitled permitted the

ex pane e.c parte order to expire and sbe she did not. not proceed with the PF PFAA matter in Lehigh CoUnly COilnlY

Court. Court. flowever, ex parre order, she took (lowever. after Mother secured the I!.X LOok Paul Christopher wilh with

herto heTlo Arizona without advance not ice to Father.

5, 2007, defendant Eidelman filed a petition for emergency relief on On April 5,2007,

rather. In the pelition. behalf of Father. petition, Father sought the immediate return of Paul ChIistophcr Christopher to

PennsylVania. Pennsylvania. Father also a lso sought cu~1ody" of soughr "temporary primary physical custody" oIPaul Paul

Christopher.

April 5, 2007, at a hearing in On AprilS, In Lehigh County CoW!ty Court Cowt with both parents present,

the petition for emergency reJiefwas relief was resolved by agreement. Under the agreement. agreement, Father

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was granted exclusive possession of the marital residence . He was made thc the primary

physical custodian of Paul Christopher Mother MOlbt"r was given visitation with lhe chi ld for a the child

that these provisions would be minimwn of three hours per day. The parties agreed Lhallhesc minirnwn

temporaC)', Additionally, Mother agreed to withdraw a protection from abuse case she filed tempora.ry. met!

in Arizona. The part ies agreed to engage in counseling. Defendant Eidelman represented parties

rather at this hearing. Father

On April 24, 2007 2001 ., Mother filed a petition for shared legal and physical custody of

jlauJ Christopher. A hcuring ]lauJ hC<1ring was conducted On this petition on Ihis 2007 . Derendant petilion On May 2, 2007. Defendant

Eidelman represented Father at Ihe the May 2 hearing. Again an agreement was reached. The agrt:ement W<.tS

agreemeni, agreement, which was made an order of court, CQurt, had interim custody provisions. Under the

agreement, tbe parents would share legal custody of Paul Christopher. Father remaincd agreement. the remained the thc

primary physical custodian of Paul Christopher. Mother MOlher received incre."\sed increased partial

custody rights. The parties agreed that either Doclor physical cllstody Doctor Phillip Nastasee or Doctor

Eileen evaluation oflhe Eilecn Ginsburg would do a psychological evnluation parties.. Trial on the custody of the parties

count COUllt in the complainl complwnt was scheduled for November 19, 2007. 2007 .

According to the present malpractice ma lpractice complainl, complaint, Father aod and defendant Eiddman Eidelman did

nol receive a copy of Doctor NasL.1See not Nastasee 'S 's evaluation until November 14, 2007. On

"November 16, 2007, Abeln fired Eidelmnn EideLman as his attorney for incompetence, c-mail, incompetence. via e-mail,

and asked her to request a continuance continl1ance ofthc ofllie trial and to contact his new attorney. attorney,

(de fu nd ant) Pepper, prior to November 19." (defendant) 19." (paragrRph (paragraph 24, Complaint. Complaint.))

The Honomble Maria L. Dantos Honorable Marin D:m(DS convened coun in the custody CWle case all 0 11 November

19.2007. Defendant Eidclman presented a petition to withdraw as cowlSel counsel for Father.

Judge Dantos grantcd granted that petition.

3J

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According to Ihe the maJpmctice compluint, complaint, father Father initially consulted defendant

16, 2007, the day Father ""fired" Pepper on November 16.2007, fired" EideJrnan. Eidelman. (Paragraph 21.

Complain!.) Falher Complaint.) Falhercxc.cuted written retainer agreement with Pepper on December 3. executed a wrilten 3,

2007. (Paragrapb (Paragraph 32, Complaint.) Pepper entered his appearance on February 8, 2008,

January, 2008, as I will explain. although Pepper appeared with Father in court in JlUluary.

Ir return to a description of what occurred. occurred when this case was called for trial on

November 19,2007 19,2007. Shortly after the stan sIan of the hearing. bearing, defendant Eidelrnan Eidelman was

excused from further funhcr representation. Defendant Pepper, who W8S \N8.S not yet retained and was

fU'st consullcd only fll'st consulled on all the th e Friday before this Mond.1-}' Mond.'lY hearing, did not appear at the

November 19 hearing. bearing. By agreement. the trial was continued to Januury 22, 2008.

Mother, through het her attorney. aUomey, indicated she was prepared on November 19 to proceed to

trial, but !.he the court co urt gave Father ratber the Lhe oppOrtunity opportunity to secure the services of Pepper. Also all

November 19, 2007, aner lifter Eidelman was excused from funher representation, Father,

~·e, agreed 1 acting pro SC, to 0 another imerim interim cUSlody custody arrangement whereby he nnd Mother

would share legal and physical phys ical custody of Paul Pau l Christopher. Christopher.

In Count r oflhe complaint, Father aUegcs alleges legal malpractice by defendant

Eiddrnan Eidclrnan for the fo following Uowing reasons; reasons ; (a) failing to seek access to Doctor Nastasee's work

fa iling to prepare Father for rus papers for the psychological evaluation; (b) failing his examination

by Nastasee as part of ofthc the evaluation process; proccss; (c) [ailing failing to seek a continuance of the

November 19, 2007, trial date and failing to 10 retain an independent expert to critique critiq ue

Naslasee's findings ; (d) fail ing LO to prepare witnesses for and arrange the aitendance attendance of

,viUlesses witnesses at at trial; (0 al trial; (e) failing to prepare Father for testimony al (f) preparing proposed propOsed

findings of fact and und conclu conclusions sions of law before the presentation of any 101101 Iriailestimony; testimony; (g)

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Inking tak ing an out-of-state Immedialely prior to trial "with oUI-of-Sl<ltc vacation immediaieJy liwith knowledge that

transportation difficulties might arise that could prevent her (Eidclman) transponalion (Eidelman) from appearing

with Abelo Abeln at ill the trial " ; and (h) lliiog trial"; using a pretext as a reason for refusing to request a

continuance cuntinuance of (he the November 19,2007, scheduled Irilll. trio.!. (Paragraph 56, Complaint.)

claims that he was "forced to accept an unfavorable, As his damages, Father ciamls

negotiltted outcome thR! negotiated nol only deprived him of Iia substantial amount of contact with his thBt not

son, Paul, but exposed Paul to longer periods penods of Heidi 's ' s care to the child's child 's emotional

detrimenl" (Paragraph detrimenL" (Puragraph 57, Complaint) Complaint.)

In Count n Tn II of the complaint, Father stales states a bleach breach of contract chum against

defendant Eidclman. Edelman. He alleges that the negligent acts stated in the complaint, which I just

summarized, swnmari7.oo, constitute a breach of Paragraph 5 of ofPnragraph oCthe the retainer agreement whereby

Eidelman promised that "[ eJvery reasonable effort will be made to prosecute andlor defend " [ cJvery

your case cose di ligently and diligently WId efficiently according to legal, ethical and locnJ loeaJ practice standards

in an enart ellort to (0 achieve solutio ns which arc solutions you." (Para.graphs juSt and reasonable to YOll." are JUSt (Paragraphs 60

Father only alleges that, ·'[o.]s and 61, Complaint.) As to damages, Famer "[a1s a foreseeable forcseeable

consequence of Eidclman' Eidelman'ss breach, Abeln ssuffered uffered money damages ilial thai exceed arbitration

limils oft1lis limits of COW1 ," (paragraph 62, Compla this COw1." int.) There is no specification as to "moocy Complaint.) "money

damages,"

1n the motion for summary judgment filed fi led by defendant Eidelman on September Septembcr 1, I,

2011, she states she is entitled to summary judgment bec(luse beeause plaintiff cannot prove

to her representation, damages related [Q rn this regard, Eidelnuw representation. In Eidelman poinLS out that she was not

attorney when he agreed to shared custody on November 19,2007, and Father's auomey IlI1d that lht! the

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shared custody order th"t enlered on that date was actually entered by that Judge Dantos entered

agreement of Father with Mother. There is merit to these arguments made by Eide\man. Eidelman.

ofFJ:llher> The gravamen of Father's~ complaint is that the negligence of his attorneys led to

orden; whereby his custody with Paul Christupher orders Christopher was gradually diminished through court

orders. While there was diminishment of Father's custodial right3 rights at tJlnes tllnes through court coun

orders, there is no evidence in the record that it was caused by any negligence by defendant

Eidelman. Eidelman.

3ttorney, the agreed order of April S, 2007, Father'ss anomey, With defendant Eidclman as Father'

was entered. Under thal that order, Father was made the sale legal custodiun custodian of ofPaui Paul

Christopher. He was granted primary physical custody of Ihe the child. With Eidelmilll EidclllUUl as his

attorney, the agreed order of May 2. 2007, was entered. Under thal order, lhe the parties

shared legal custody of Paul Christopher. Father remained the primary physlcnl physical custodian,

but Mother's MOlher' s custodial lime time wilh with Paul Christopher increased. These are are. lhe the only two

order.; orders setting forth custodial rights oflhe parcnLS while Eidclman Bidelrnan was Pather' s attorney. allorney.

'f1te TllC order entered on November 19, 2007, WIlS entered by agreement was enlered of Father aftcr agrecmem ofF1tthcr after

Eidelman 8idelman had been excused by court order fJom fIOm further representation. Under this agreed

the panies shared order, thepanies order. sharcd both legal and physical custody of Paul Christopher.

There is no evidence that defc:ndanl defendant Eidelman is legaHy responsible for ror the

9, 2007, order providing shared custody. Because Father ""fired'l November J19.2007, Eidclman fired') Eidelman

the November 19 hearing and Judge Damos days before [he Dantos granted Eidclman ' s petition to Eidelman's 10

stated their agreement at the November 19 hearing, it would withdraw before the parties slaled

have been improper for Eidelman to give her input about abom the wisdom of oflhe the agreement or

p laintiff as the agreement was being stated. Father had not yel to provide advice for plaintiff

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QWI1 - by his choice- secured the services of his next attorney so he was on his own choice - when thl! the

agreement was reached. The record of that thai hearing demonstrates a complete selling setting forth

orlhe agreement and Father's acceptance of it. anhe

Furthennorc. Furthennorc, as a general rule, a litigant is not nol pennilted pennitted to agree 10 to a settlement

and subsequt:l1tly subsequently bring a malpractice suit against his hi s aflamey attorney based on the tenns oflhe terms of the

seulemem. Muhammad v. Slrassburger. Strassburger, 526 Pa. 541 , 546,587 A.2d 1346, 1346. 1348 ((1991). 1991 ).

ro commenting on the proper application oftht! In announced in Muhammad, oflhe rule annolillced Muhammad, the

Superior Court stated:

Muhammad has been held to \0 be controlling where the consistl."Ci or "advising and lawyer's alleged negligence consisted represenling [a client] and in negotiating for him the representing terms of tenns o([a] sale," Goodman v. senlcmenl and sale:' [a] settlement v, KOfzeh, Katzen, 436 Pa.5upec. 247, 250 (1994) 71. 77-79, 647 A.2d 247,250 PH.Supe,- 71,77-79, (1994).. Muhammad was also held to be detemlinutivc deremlinarjve where i.he tile exprclised dissatisfaction with the amount client merely expressed Mlount of her marital thal the lawyer's murital award and averred lhalthe conduct had caused herber to receive "8"a deficient amount" marilal property, alimony and other available relief. of marital Spirer SpireI' v. Freeland & Kronz, 434 Pa.Super. Pa.Supcl", 341 ,344-46, , 344-46. 673, 675 (1994). Finally, in Marro.~· 643 A.2d 673,675 Ma,ros v. '. Cancilio, eoneilio, 427 P,,-Super. Pa.Super. 612, 629 A.2d 1037 (1993), .Mllhammad Muhammad was held to be controlling where lhe 10 hI! the lawyer's alleged negligence had consisted of on "alleged lawy.:r's cliemJ in failure to adequately represent [the client] negotiations of the settlement agreement." Id. ItL at 613, 629 A.2d at 1038. These are 8re sitU3tions situations in which the client c lient perceived a deficiency in the lawyer's exercise of of his or her professional jjudgment. udg.ment.

McMahon v. Shea, 441 McMohon 44 1 Pa.Super. 304, 312-13, 312·13, 657 A.2d 93H, 941-42 (1995).

Conversely. Conversely, tbe Muhnmmad is inapplicable where a settlement occurs the rule announced in Muhnmm(ld

as 8a resull f(",dUd or an aUomey's result of fnmd attorney's fai lure to accurately advise the sewing failure settling client of an

eSlnblished eSLDblished principle prinCiple of law or Lhe the consequences ofthe of the settlement. setllement. Muhammad v. v.

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ADD11

Strasshurger, 526 Pa. at 546, 587 A.2d at 1346; and McMahon v. Sfr(Jsshurger, 1'. Shea, 441 Pa.Super. Pa.Supcl". at

313,657 313, 657 A.2d at 942.

demonstrates that In the case at bar, the record demonstroles mat Falber Father knowingly and voluntarily

entered the November t 9,2007, enteroo agreement. As was previously mentioned, Eidclman was 9. 2007. agrecluent.

not present at the agreement because Father chose to terminate her representBtion represcmotion three

days before the hearing. All of the evidence demonstrates that Father entered the

agreement w ithout the assistance of Eidelman by his Own without own choice. There is no evidence

demonsirating demonstrating that Father entered the agreement res~l h of fmud ngreement as a result fraud or a failure by

Eidelman to wi th accurate legal advice. La provide Father with advice. Thus, under Muhammad and its

progeny, Father is precluded from alleging malpractice rruUpractice against again st Eidelman based on the

oftbe terms of the November 19 agreement agreement.

Father also makes triaJ trial preparation allegations against defendant defendam Eidelman., EidelmflTL As r ou~ father pointed out, Father alleges in Paragraph 56(a) of the complaint, thai thal. Eidclman failed to

tbe work papers for the evaluation by Doctor Nastasee. However, secure the However, only two days

after the Nastasec Naslasec report was given to Eidelman and Father, Father fi fired red Eidelman. Father

further faults Eldelman for nm not preparing him fo forr his interviews inter views with Doctor Nastasee. Naslasec.

HO\\lcver, Hov,'cver, neither the complaint co m plai nt nor the discovery indicates how the failure to interview

alTected the report or testimony of Doctor affected DoclOr Nastasee.. Nastasee_

Father claims defentlant defendant Eidelman Eidelmnn was negligent in not requesting a continuance of

t 9, 2007, trial after the Nastasee report was released. The court granted a the November 19, tbe

continua nce of the November 19 trial by agreement of the parties. The court granted the continuance

continuance so Falher Father could secure the services of hls his next ncxt attorney, attom ey, Pepper. Therefore,

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ADD12

Futhcr Father cannOl dCmOnSL'"3tc any damages resulting from this alleged negligence on the part cannot demonstrate

ofEidclman, of Cidclmllll,

father next contends that defendant Eidclman was negligent ror Father l1cxt for not retaining an

expCI1 CXPC11 to cri tique Nastasec's critique Nastasee's report, not prepanng preparing wiLrlesses wi tnesses for fo r trial and not preparing

Father fo forr trial. that Eidelman did not retain another expert. how could tria l. As to the allegation tllal

she do that? As Ir pointed out, Qut, she was fired right afte afterr the Nastasce report was released.

of insufficient trial preparation by November 19,2007, The other allegations ofinsufficient 19, 2007, have no

merit. The continuing of the trial date beyond November 19,2007. 19.2007, was reasonable and

even predictable in light of the release of the report only days before November 19 and preilictablc In

Father's Father'S firi ng or firing Eidelman. The continuancc of Eidelmao. coolinuMCC was granted to allow Pather Father to preparc. prepare.

Trial did nol not occur until more than a year and four months ancr Eidelman was excused aller Eidclman

from represenLation and, in the interim, Father and Mother lived under their agreed custody

order of November 19,2007. Under these circumSlances. circumstances, there thcre is no evidence of

insufJiciclltlrio..l insufficicnt preparolion nor evidence that Eidclman's trial preparation imp(iCl~d any Eidelrnan's conduct impacted

di dim inishment of Father's custody rights. minishment

As to the remaining allegations against defendant al legations of professional negligence againsi

Eidelman, Eidelrnan, they arc to the contentions about Eidc:lman's are patently frivolous. I refer lo Eidelman's pre--uial pre-crial

preparation of findings of fact and conclusions of law. her vacation and other allegations prcpararion

about continuing 19,2007, trial date. continu ing the November 19.2007,

The proft:SSional negligence claims against defendant Eidclman lack a legal and

fac tuall baS factua basIs IS so judgment must mu st be entered for Eidelman Eiddmao on them. Further, becausc tJle Further. because the

contrac t claim rests upon the claims breach of contracl claim s of negligence, the breach of contract claim ofnesligcnce,

fa il s.. fails

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ADD13

Claims ugainst again.,1 Attorney Pepper

Following Eidelman's withdrawal frOot frOUl the case, Falher Father ruld and Mother appeared in

court on January 22, 2008, for the rescheduled triai. trial. Both parents were represented by

counsel for that day's proceedings. Another agreed order was entered. Under the agreed

order, tbe parents shared legal custody of Paul Christopher. Mother was designaled order. designated as the

phys ical custodiall. primary physical custodiun . Father was given partial custody rights. The lengthy

agreement of the me parties was set forth on the record before Judge Dantos. At one point Danlos. Alone

during the presentation of the agreement, there was an interruption when Falner Father and his

attorney. attorney, defendant Pepper, spoke priwlcly. privately. At an lulcr later pOint point during the proceerung:;, proceedings,

Father, through Pepper, clarified thai that the patties parties will be following Doctor Nasl.lJ.see's Nnstilsee's

recommendations in regard to counsd counsel ing ins and 8a parenting coordinator hut but thai the parties

Doctor Nastasee's are not agreeing to DOCior conclusions. It was also made clear that Father was Nastasee' s CQnclusions.

contesting allegations. conclusions, diagnoses and other things contained in Doctor

NaslflSee' s reporl. Nastasee's report. The report was made part of the record during that proceeding. Both

parents stated their agreement to the terms oflhe custody arrangement in response 10 to

questions by Judge Danlos. Dantes .

On March II, II , 200g. 2008, ailer hearing. the Honorable Edward D. Reibman after a contested hearing,

entered a filml final PFA order in favor fhree years. favo r of Mother and against Father fo r a period of three

(Lehigh County Counl)' case number number2008-PF-0089.} 2008-PF-0089.)

On March 11,2008, II, 2008, Falher, Father, through defendant Pepper, filed a petition for

modificntioll of custody Mother filed aB petition on January 16. 2009, for relocation to modification

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ADD1 4 ADD14

Arizona . Both petitions {fini which was conducted in Morch petItions were heard at the trial Mnrch and April, April.

2009, before me. 2009.

In ID preparation for fOT the trial on tilese these petitions, Father, through defendant Pepper. Pepper,

filed "Petition for Psychological and Mental Menial Examination of Parties" on all September 16,

III it, he asked that the c:owt 2008. In court direct the parties to undergo a psychological evaluation evuluation

Samuel , Ph.D .. Pepper fLIed a memorandum in support of his petition. by Steven E. Samuel, pelilion.

Attorney Pepper represented Father at the October 8, 2008, hearing on the petition. petition. Pepper

brought Doctor Samuel 10 the Ibe hearing over which JI tile hearing. No one testified at the

presided. 1I gra[]ted granted the petition for the evaluation hased hiL'ied on the argumentS argumc1lI5 of counsel.

On October 16. 2008 , Mother, aClingpro 16, 2008, Sf!, filed a motion for reconsideration of aclingpro Sf,

the order granting DoclOr Samuel. After argument on this mOlioll, grantiJlg the evaluation by Doctor motion. I

entered an order daied dated November 13, 2008. granting reconsideration. In that tha[ order, order. I

rescinded the order of Oclober 8, 2008, so that Mother and Father were no longer

compelled to undergo an evaluation by Doctor Samuel. indicated that the October 8, SamueL I indicUlcd

2008, order "is rescinded Without ptaintiff (Father) 10 renew hi prejUdice to plaintiff without prejudice mOlion for hiss motiun

psychological evalualion evaluation at the appropriate time during the trial in this case."

On January 28 , 2009, I entered an order granting defendant Pepper's petition to

wi \vi thdra\\' thdrawas as counsel for Father. According 10 to Paragroph PnragrJ.ph 3 of the petition, Father had llot not

paid Pepper for ser.'ices services rendered and Father philosopllicaJ differences FaLher and Pepper had philosophical

aboul about the hand band ling of the custody case. Pebruary 13, 2009, Attorney Stephen 1. casco On February J.

Anderer entered an un appearnnce appearance on behalf of FOlher. Father. Anomey Andcrer Anderer represented father Father

£II the custody trial in March and April, al April. 2009. Mother was also represented by counsel at

the trial.

II

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ADD15 ADD 15

I entered an order dated February 26, 2009, granting Father's pet ition, presented by

Attorney Anderer, for Doctor Nai>iasee's emire file, Nast3see's coLin file:. On the same dale. I denied Motber's Mother's

petition for discovery ofLhe oflhe file of Doctor Doclor Samuel. As I indicated in me foornoLC to tbal the footnote tbat

"A t this point, second February 26 order, "At point. according pillimiff acconling to counsel (Anderer) for pll1iOliff

(Father), th ere is no expectation tblll there that Doctor Samuel will be ca lled as a witness in this

was case." There .....'3.5 no further petition filed by Falher fUl1her pelition Fruher for an evaluation cvoJualion by Doctor Samue l.

parties when IJ rescinded the order thai As I made clear to the purties allowed the evaluation by thol ollowed

Sarn uel, Doctor Sam u c~ . Ii wou Doctor Samuel iiit ld have considered again an evaluation by DOClor would ifit

appeared at the trial that su ch an evaluation was appropriate. fn e.ppcnrcd evenllhm Tn the event thm such IIII

petilion had been suhmin petition ed and in submitted ifI deemed it appropriate, I would have adjourned the

custody trio.! trial for Doctor DOclor Samuel 's evaluatio Samuel's evaluation. ll, made provision fo r hi s testimony, and

entered an intedm th ings could be done interim order until those things done..

In Count Coun t TIl of his complaint, complain!, Father bri ngs a count for legal malpractice against

Counl rv, defentlnnl Pepper. In Count defendrutt TV, Father alleges breach of contrncl contrnct by Pepper. Pepper.

As to legal mrupracticc, Father cclaims malpractice, father laims that Pepper wns professionally professionnUy negl igent by:

(a) not seeking seeki ng discovery of Doctor Nastasee Naslasee's 's work papers; (b) ( b) by not suggesti suggcsli ng the

relaining rew.ining of an expert for Father to rebut Nastasee 's ' s assessment of Father; (c) by unfairly unf.."tirly

pressuring Father into a settlement agreement a.greemenl in that Pepper was failing ftl iling to properly

prepare for lrial trial and by advising father tbat there would be an worse result if he did nOt Father that

accepllhc accept settlement;; (d) by allowing the settlement al lowing Doctor Nastasee's N:lStasee's report 10 be made pan reporllo part of the

record (apparentl y, at the January 22, 2008, henring); (c) 2008. hearing); FaUler that no appeal (e) by advising Father

cou ld be taken from the PF A order entered by Judge Reibman on March could t I, 2008; (f) by Marcb 11,2008;

compromising Doctor Samuel' Samuel'ss qualificalions qualifications (0 testify and Doctor Samuel '=s credibil to lestify crt:dibility; ity;

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ADD16

and (g) by not nOl calling Doctor Samuel as a0. witness \\;tness in suppon support of the pefition ofthc petition to have Doctor

Samuel conduct an evaluation. evaluation.

rv. Father In Count TV. rather alleges Ilepper nlleges that his retainer agreement with defendant Pepper

provided, in Parogr-Jph ParogI"Jph 4, that "[wje "[w]e (Pepper) ... can assure you that you will receive the

most conscicntiol15, conscientious, diligent and competent legal services available." Father al leges that alleges Ibat

Pepper violated this provision of the agreement by conunitling commitling the negligence which is

in Count JII, aJ lcg,cd ill alleged HI, which ::Jllegatiolls ~hc preceding purugruph. ::tll egatiolls 1I have summarized in the p<lr.lgroph.

In his brief in opposition to Pepper's motion for summary judgmeut, Falher judgment. Father

withdraws his allegation of negligence for Pepper' Pepper'ss allegedly nUcgcdly not advising Fatbcrtb:l1 Father that no

appeal could be taken from the PFA order. Additionally. although Father's complainl complaint

contains the seven allegations of ofnegligerlCe Pepper that I JUSt negligence against Pqlper just Iisled listed,, Father's brier brief

coma ins argument in support of only three contains threc of these allegations. oflhese SpeCifically, father IIllegations. Specifically, fathcr

pursues pursucs only the claims that Pepper committed malpractice by railing to retain an expen to commitu:d malpraotice

rebUlthe Naslasee report rebut the Nastasee repon , by pressuring phtintiffto plaintiff to enter into an a.greement with Mother on agreement Wlt!t

January 22. .1anu.1.ry Hod by fai ling to call Doctor Samuel as :1a witness at the hearing on 22, 2008, and

plaintiff's a n evaluation by Doctor Samuel. Thus, the allegations petition seeking an plaintifrs petitlon aJlegalions of

negligence agai negtigence nst Pepper stated in the complaint but not addressed against uddressed in piaintifrs plaintifrs brief are

waived.

Father' s first allegation of negligence preserved against defendant Pepper is thai: Father's thm:

"Pepper never suggested retnining retaining an independent psychological psychologicaJ expert to critique

Nastasoe' s Repan Nastasce's Rep()n andlor and/or to reevaluate Abeln (Falher) to attempt to rebut Nastasce's Nastasee' s

un illlttering assessment of Abe lU1fluttering ln''ss pa Abeln 66(b). Complaint.) renting capabilities." (paragraph 66{b), parenting

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ADD17

This allegation direclly directly relates to Father's second malpractice claim in which he assens asserts

that:

Pepper unfairly pressured Abeln (Father) inlo accepttng uccepting an unfavorable settlement, of the custody issue lhatthat would otherwise have. been resolved at trial, trinl, by both failing to ndequately prepare to effectively advance Abeln's interests ooequately thai, in the tnnI and by repeatedly advising him that, at the trial absence of an seruement, settlement, the tenor of the Report and the afme inexperience of the judge vinuaJly vlrtuaJly guaranteed b'l1atanteed that Abeln would lose what little physical custody of Paul he and his son enjoyed.

(Paragrnph (Paragraph 66(c), Compluint.) Complaint)

in essence, with the above allegatio In ns, Father contends Ihal allegations, that Pepper conunitted committed

malpractice by deciding nol not to auuck orlhe Naslasee report prior to the altuck the credibility orthe

custody trial scheduled for January 22, 2008, thereby leaving It!'o:ving Father unprepared for trial

and forcing him to reach an agreement with Mother which further limited his custody lime time

with the child ,

cJaims fail as a matter of law under the rule announced in Muhammad These claims

Muhammad v Strassburger, Strassblirger, 526 Pa. at 546, 587 A.2d at 1348, which, as I have explained,

bars a litigant who voluntarily settlemenl from subseq voluntari ly agrees to a settlement uently bringing a subsequently

malpractice suilllgainst sui t against his anorney based on !.he me tenns teoos oflhe of the settlement. The Superior

Court has held that Muhammad precludes 8a malpractice action where a settling settl ing client

merely alleges thlll settlement resulted from "a deficiency in the lawyer's exercise of his or that seulement

her professional judgmellt." McMahQII professiona1 judgment." McMahon v\I Shea, 441 Pa.Super. Pa.$uper. at 313, 657 A.2d at 942.

Conversely. n malpractice suit stemming from a settlement may proceed where n litigant

tJuu the settlement res ulted shows that ul ted from fraud or from the attorney's fuilure failure to correctly

the settlement to the liti gant. id explwn legal principles or the consequences of lhe explain Id

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ADD 18

In the case at bur, bar, the evidence is undisputed that defendant Pepper. upon review of

the Nnstasee report. concluded that Fatherwould Nastasee report, Father would attain a more morc favorable custody

arrangement through settlement thom than through tria1. trial. In lieu of of directly au.acking attacking the

Nastasce report. report, Pepper advised thaI that Father's best course of action was lO to reach rench a

temporary custody iUl'angement <'lnangemcnt with Mother at the hearing on January 22, 2008, obtain a

continuance of the custody trial, and allow the Nastasec report to lose its effect over lime. time.

At some point in the future, Pepper would then (and actually did) a.ttempt attempt [0 to secure a new

evaluation of the parties oCthe parties.. The reCord record from the January 22,2008. 22, 2008. hearing reveals that

un agreement with Mother as envisioned by Father knowingly and voluntarily entered into an

IUld previously explained by him to Father. Pepper and

Father now DOW contends that the January 22. 2008, agreement resulted from l)epper's Pepper' s

allegedly flawed strategy of not impeaching the Nastasec Nastasee report and instead pursuing the

settlement opLion. option, Patht."T Father docs not allege that he entered the rhe January 22, 20011, 2008, agreement

as a resull result of fraud or Pepper's fai failure lW"c to correctly explain to him the pertinent legal

principles or the consequences of the agreement. Boiled down ofrhe to its essence, Father is do\oVJl!O

asserting OtSscrting ihnt that the agreement resulted from "a deficiency" in Pepper's "exercise of orhis his

profussional judgment" in pursuing one litigation strategy over another. As the Superior proressional

Court noted in McMahon II. 1'. Shea, the Muhammad rule operates to preclude malpractice

suits where a litigant claims his unfavorable settlement resulted merely from his lawyer's lawyer' s

exercise of professional judgment. ,[hus, Thus, these malpractice claims asserted by Father are

precluded as a matter oflaw. of law.

Further, Father gave his infonned consent to the agreement entered on January 22,

2008. The Thc record from the hearing reveals a setting forth fortb ofthe specifics of the custody

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ADD19

agreement. At one point. as the agreement was being set forth. forth, Father interjected his

comment that he felt fell the lransponation transponation provisions for Paul Christopher were too broadly

stated and that there was conflict conflia: in the transportation provisions. N.T" N.T.. 1122108, p. 7.

Later in Ihe Lmcr the hearing, Fnther Father responded to 11Do question questioo by the judge that he understood

provisions regarding nny planned removal of the child from Pennsylvania. N.T., 1122108, 1122/08,

p20. Fi p.20. nally. Falber Finally, Father gave. gave his approval to the custody provisions pUI record by the put on the recort!

1122108,, p. 23. attorneys. N.T., 1122108

Father's father slatement in his complaint (Paragraph 66(c» ' s statement that he wns 66(c)) lhat was "unfai rly "unfairly

pressured" by Pepper 10 pressured" 10 enter into mto the January 22. 22, 2008, agreement is contrary 10 Father's 10

email to Pepper dated December December20,2007. [n it, Father stated 20, 2007. In slaled to Pepper: "If "'fyou you are 8re

to successful in getting Zamborsky (Mother's attorney) & Heidi L custody o discuss a cuslody

arrangemem, f would consider Heidi having title of primary physical cuslodian arrangement. custodian wilh with the

follo .....40g visitation schedule (which Fathcnhen following Fatherthen set forth)." (The December 20, 2007, 2007.

emui emu.i l is attached to defendant Pepper's motion for summary judgment judg.ment as Exhibit G.)

Also, in n statement which is part Also. pan of a document that Father prepared enlitled"SelfRepon entitled "SelfReport

Note. dated February 20, 2008," Father wrote: Progress Note,

Il made the hardest decision of my life on 1122'081/22108 by offering Heidi Hcid i the title of primary physical custodian, custodia.n, no lt because she was deserving of it but because I hoped that by giving her what whal she craved most. most.., that thai she would ~10p the h05ii stop le acti, hostile ons and start to cooperate in a civil actions civil.. responsive that is resp::msive manner lhat IS in the best interests of our son, son .

furth~r demonstrated that the January Father further Jan uary 22, 2008, 2008 . agreement was \.Vas his

agrccment agreement with his testimony on March 24. 24, 2009. during thc the custody trial., trial, in the foll owing following

exchange:

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ADD20

Q: And why did you agree to lhe the order (supulnted (stipulated order of J:wuary January 22, 2008)1

A: Because 1I was very concerned about Nastasec's many problems \vith it. 1t was report having so mllny concerned thaI thai I was going to have a worse-I worse - I was not Ullli if going to see my son at all. And I had hoped that if I had given Heidi what she was craving, that the hostility and aggressiveness towards me VJOuld would end, and that shes he would enable us to start CO-parClliing "'IOuld co-parenting in the best interest of our son. And I had hoped, based on the Icnns terms oforthat that agreement, that we would be able to use c<rpll/'cnt co-p!U'cnt counseli ng ood counseling and a parenting coordinator to resolve differences and get on bener beneT grounds so lhat foel we that in fnct would 'w maxim ize the amount of lime ould maximize time that both of us shared W'ith with our son, son

N.T ...• 5124/09. 5(24/09. p.11 O.

for nil of these reasons, Father cillim rar all clllim of malpractice based on Pepper's Pepper' s allegedly

ngreement of January forcing him to accept the agreement Janunry 22, 2008, locks lacks merit .

The final malpractice allegation against Pepper is lhol Theiinal reppcr was negligent in not that f'eppcr

calling call OT Father as witnesses on October 8, 2008. ing Doctor Samuel or 200&, wben when 1I heard beard the petition

to be evaluated for the parties (0 cvaluated by Doctor Samuel. According to Father, the fai1ul'c railul'c to call

either or both of these witnesses "significanlly the. ease with whieh "significantly increased the which Heidi,

represenung VDcate its original ber.;elf, subsequently succeeded in getting the trial court to vacate representing hcrself.

order authorizing the new evaluation," (Pnmgraph 66(g), Complaint) evaluation." (Pamgraph Complaint.)

There is no evidence of malpruc\ice malpractice by Pepper from his presellling prcsellling the petilion petition for

the evaluation on October 8, 2008. J J controlled lbal that heming, hearing. I decided the petitioD petition based

the offers of proof from counsel and their arguments. A review of upon thc the notes of oCtbe

mat testimony from that hearing heating reflects Ihnt thnt Pepper offered to present prcsenl Doctor Samuel or Fathcr Father

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ADD21

or bOlh. iOllial reluctance to both. Pepper's presentation overcame my initial to have another onother

psychologic~d evaluation. psychological evaluution. IJ granted Ihe the petition. petition.

Mother's Mother 16.2008, 's motion for reconsideration which was filed on October 16, 2008, was

heard all Lhal hearing by indicating on November 13,2008. (began that thm I wus indicAting thaI WIlS second- second·

un evaluation by Doctor guessing the wisdom of allowing an Doclor Samuel. After add t1dditional itional

IlTguments by the attorneys, arguments auorneys. I entered an order cancelling the evR,ilUltion. evaluation. However, 1 made

that I was denying Ihe it clear lita( the request for fOT an eva luation without prejudice and 1 explained evaluation

how the court would handle schedu li ng if the evaluation were granted scheduling grunted at al a& later date. IUler-date.

There were no further requests for an evaluation.

There is no basis for afI legal malpractice action on the topic of defendant Pepper's ofdefe.ndanL

nn evaluation by Doctor request for an DOCIOT Samuel. nOI when Pepper succeeded in Sumuel, nal m getting Ihe the

coun 10 C0W1 to allow the evnluaLion evaluation under authorized prooedures court. By the WilY, procedures used by the eourt. way,

Ihe the allegation in Paragraph 66(g) of the compliliOllhat complaint thm l'epper' Pepper'ss failure to call witnesses at flI

[he the October 8 hearing "significantly increased" Mother's gening the trial court to cancel

evaluation by way of the evniu.alion reconsideration isjust ofreconsiderution not accurate. iSjUSl nOI

Father Fruher bases the breach con1nlct claim against derendnnt breuch of COotnlct defendant Pepper On on his

negligence claims. Because Bec.ause there is no factual or legal basis bll$is to the legal lons of allegations tbe al

malpractice, II enler malpractIce, sununary judgment for Pepper on the breach of contract action as well . eIlier summary

January 25, 2012 JlUlUary