The opinion
J-A21005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEVERLY E. BROWN IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
CATHY S. BOYER, ESQUIRE AND BOYER,
PAULISICK & EBERLE
Appellees No. 206 WDA 2017
Appeal from the Order Entered January 12, 2017
In the Court of Common Pleas of Butler County
Civil Division at No: 2014-10798
BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 18, 2018
Appellant, Beverly E. Brown, appeals from the January 12, 2017 order
sustaining the preliminary objections of Appellees, Cathy S. Boyer (“Boyer”)
and Boyer, Paulisick & Eberle (collectively with Boyer, “Appellees”) and
dismissing Appellant’s complaint with prejudice. We reverse and remand.
Appellant sued Appellees for professional negligence and breach of
contract based on Appellees’ representation of her in her divorce action. 1 As
part of that representation, Appellees negotiated an agreed-upon division of
marital assets (the “Agreement”). Pursuant to the Agreement, Appellant
would receive, as an annuity, one-half of the marital portion of her ex-
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1 We have culled the relevant facts from the trial court’s February 27, 2017
opinion.
J-A21005-17
husband’s pension (the “Pension”) from the Slippery Rock Borough. Second
Amended Complaint, 5/2/16, at ¶ 12. The annuity was to begin upon the ex-
husband’s earliest retirement date and continue after his death. Id.
Subsequently, the Pension plan administrator determined that Appellant could
not receive the agreed-upon annuity because the Pension was not an ERISA2
qualified plan. Id.3 Appellant therefore claims she did not get what she
bargained for under the Agreement. Appellant claims she would have
negotiated a more favorable distribution of other marital assets had she known
she would not receive the annuity. Id. at ¶ 24.
Appellant commenced this action by writ of summons on September 8,
2014 and filed her second amended complaint on May 2, 2016. Appellees
filed preliminary objections on May 23, 2016, claiming Appellant failed to state
a claim upon which relief could be granted.4 The trial court conducted a
hearing on December 22, 2016. On January 12, 2017, the trial court entered
the order on appeal, which sustained Appellees’ preliminary objections and
dismissed Appellant’s complaint with prejudice. This timely appeal followed.
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2 Employee Retirement Income Security Act, 29 U.S.C.A. § 1001, et. seq.
3 The Second Amended Complaint, in an apparent typographical error,
contains two consecutive paragraphs numbered “12.”
4 See Pa.R.C.P. No. 1028(a)(4) (“Preliminary objections may be filed by any
party to any pleading and are limited to the following grounds: […] legal
insufficiency of a pleading (demurrer)[.]”).
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The sole issue before us is whether the trial court erred in finding that
Appellant failed to state a claim because the alleged damages were
speculative. Appellant’s Brief at 5.
Our standard of review of an order of the trial court
overruling or [sustaining] preliminary objections is to determine
whether the trial court committed an error of law. When
considering the appropriateness of a ruling on preliminary
objections, the appellate court must apply the same standard as
the trial court.
Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
Adams v. Hellings Builders, Inc., 146 A.3d 795, 798 (Pa. Super. 2016).
Appellant’s contract and tort causes of action require proof of damages.
Wachovia Bank, N.A. v. Ferrenti, 935 A.2d 565, 570-71 (Pa. Super.
2007);5 CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super.
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5 “The elements of a legal malpractice action, sounding in negligence, include:
(1) employment of the attorney or other basis for a duty; (2) failure of the
attorney to exercise ordinary skill and knowledge; and (3) that such failure
was the proximate cause of the harm to the plaintiff.” Ferrenti, 935 A.2d at
570-71.
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1999).6 The law provides: “The mere breach of a professional duty, causing
only […] speculative harm […] does not suffice to create a cause of action for
[professional] negligence.” Wachovia, 935 A.2d at 571–72 (quoting
Schenkel v. Monheit, 405 A.2d 493, 494 (Pa. Super. 1979)).
However, the “[t]he test of whether damages are remote or
speculative has nothing to do with the difficulty in calculating the
amount, but deals with the more basic question of whether there
are identifiable damages.... Thus, damages are speculative
only if the uncertainty concerns the fact of damages rather
than the amount.”
Id. at 572 (quoting Rizzo v. Haines, 555 A.2d 58, 68 (Pa. 1989)) (emphasis
added in Wachovia).
The trial court reasoned as follows:
In this case, the damages sought by [Appellant] are
speculative at best. The amount Appellant claims in damages in
her Second Amended Complaint is that which she would receive
under her ex-husband’s Pension, in the event said Pension was
available to her. However, as previously stated, [Appellant’s] ex-
husband’s pension would not have been available to her with or
without [Boyer’s] advice. That is, no action or inaction of
[Appellant’s] counsel would have resulted in [Appellant’s] ability
to receive her ex-husband’s Pension in any form. Therefore, it is
a remedy that is unavailable as a matter of law rather than as a
result of any wrongdoing by counsel.
Trial Court Opinion, 1/12/17, at 4-5.
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6 “A cause of action for breach of contract must be established by pleading
(1) the existence of a contract, including its essential terms, (2) a breach of a
duty imposed by the contract and (3) resultant damages.” Cutillo, 723 A.2d
at 1058.
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We disagree. Appellant has alleged that she received less than she
bargained for in the Agreement due to counsel’s erroneous advice. Said
another way, she is seeking the difference between the amount she believed
she would receive under the Agreement and the amount she actually received
as a result of Appellees’ alleged erroneous advice. Thus, she has alleged the
fact of damages, and we agree with Appellant’s assertion that the amount she
expected to receive is easily ascertainable: begin with the value of her ex-
husband’s Pension as of his earliest retirement date, divide it in half, and
multiply that amount by Appellant’s life expectancy. Appellant’s Brief at 15.
We do not find that calculation to be overly speculative, and in any event,
damages need not be calculated with mathematical precision. Wachovia,
935 A.2d at 572. At the very least, the issue is not so “free and clear of doubt”
as to be disposed of on preliminary objections, as the trial court did here.
Adams, 146 A.3d at 798.
The trial court reached a different conclusion because Appellant is not
legally entitled to receive half of her ex-husband’s Pension. We disagree, and
conclude that Appellant’s legal inability to receive the benefit of the Agreement
is precisely the point. Appellant alleged Appellees committed malpractice by
negotiating an agreement whose execution was impossible because Appellees
failed to appreciate that the Pension was not an ERISA-qualified plan.
Appellant alleges that she entered the Agreement based on Appellees’
erroneous advice and received less than she bargained for because of
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Appellees’ error. The trial court erred in concluding that Appellant failed to
state a claim upon which relief can be granted.
For the foregoing reasons, we reverse the order sustaining Appellees’
preliminary objections and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Olson files a concurring statement in which Judge Stabile joins.
President Judge Emeritus Bender files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2018
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