Appendix — Muhammad v. Strassburger

Supreme Court brief1991

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81-336 | AUG 6 1991

| ORFIGE OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1991

PAMELA MUHAMMAD, et. al.,

Petitioners,

Vv.

STRASSBURGER, McKENNA, MESSER,

SHILOBOD and GUTNICK,

a law partnership, et. al.,

Respondents. au

APPENDIX

KENNETH W. BEHREND

2400 Grant Building

Pittsburgh, PA 15219

(412) 391-2515

Counsel of Record

August 6, 199]

3\4

APPENDIX

TABLE OF CONTENTS

Pennsylvania Supreme Court Judgment

oes dos on tree es tee Al

Pennsylvania Supreme Court Opinion

es ee A3

Pennsylvania Supreme Court Dissenting

Opinion dated 03/15/91 ............... A26

Pennsylvania Supreme Court Order

Denying Reargument an Clarification

ae ee ee A28

Pennsylvania Superior Court Order

II Sa Gy 6c oo es Oe ssc e ees A29

Pennsylvania Superior Court Opinion

Ser rae A31

Allegheny County Court of Common

Pleas Order dated 01/13/87............. A51

Allegheny County Court of Common

Pleas Opinion dated 01/13/8............. A53

Allegheny County Court of Common

Pleas Second Amended Complaint filed

oe ans 6G wh we 4 6a o 6.k 6 oe 8-68 A63

Allegheny County Court of Common

Pleas Brief in Opposition to Defendants’

Preliminary Objections filed-06/16/86. .... A100

Pennsylvania Superior Court Brief

| ee a A132

Pennsylvania Supreme Court Brief

FISD GRR FOT i 444.0 55-6 > Sane A193

Petition for Reargument filed 04/01/91 ... A234

Petition for Clarification filed 04/01/91... . A267

Second Amended Complaint,

GD86-19191, contained as the third

exhibit to Appellants' Answer to

Appellee's Petitions forClarification

and Reargument filed 04/15/91 .......... A274

Amended Petition for Clarification and

Reargument filed 04/29/91 ............. A306

ary ak OO Sale stead lt

SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

PAMELA MUHAMMAD,

Administratrix of the Estate of

NAZIR MUHAMMAD and

ABDULLAH MUHAMMAD,

STRASSBURGER,

McKENNA, MESSER,

SHILOBOD and GUTNICK,

a law partnership;

~HOWARD MESSER and

JAMES THOMAS, JR.

APPEAL OF

STRASSBURGER,

McKENNA, MESSER,

SHILOBOD and GUTNICK,

a law partnership; and

HOWARD MESSER

No. 5, W.D. APPEAL

DOCKET 1989

Appeal from the Order of

Superior Court at No. 218

Pittsburgh, 1987, entered

May 13, 1988, reversing

the Order of the Court of

Common Pleas, Civil

Division, Allegheny

County, entered January 13,

1987 at No. GD 84-6520

and remanding the case.

374 Pa. Super 613,

543 A.2d 1138 (1988)

ARGUED: March 5, 1990

JUDGMENT

ON CONSIDERATION WHEREOF, it is

now here ordered and adjudged by this Court that

the judgment of the SUPERIOR COURT OF

PENNSYLVANIA be, and the same is, hereby

reversed and the within complaint is dismissed.

/s/ IRMA T. GARDNER

Deputy Prothonotary

DATED: March 15, 1991

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

PAMELA MUHAMMAD,

Administratrix of the Estate of

STRASSBURGER,

MCKENNA, MESSER,

SHILOBOD and GUTNICK,

No. 5, W.D. APPEAL

Dkt 1989

Appeal from the Order of

Superior Court at No. 218

Pittsburgh, 1987, entered

May 13, 1988, reversing

the Order of the Court of

Common Pleas, Civil

Division, Allegheny

County, entered January 13,

1987 at No. GD 84-6520

a law partnership; and remanding the case.

HOWARD MESSER and

JAMES THOMAS, JR., 374 Pa. Super 613,

543 A.2d 1138 (1988)

APPEAL OF !

STRASSBURGER, ARGUED: March 5, 1990

MCKENNA, MESSER,

SHILOBOD and GUTNICK,

a law partnership; and

HOWARD MESSER

OPINION OF THE COURT

MR. JUSTICE CAPPY* FILED: MARCH 15, 1991

We granted allocatur to determine whether the

appellees' claim of legal malpractice stemming

from their dissatisfaction with the settlement of

their prior medical malpractice action is barred by

This opinion was reassigned to this writer.

the doctrine of collateral estoppel and whether, as a

matter of law, the appellees have alleged sufficient

facts to entitle them to proceed with their action.

For the reasons set forth herein, we hold that the

case sub judice is not barred by the doctrine of

collateral estoppel, but that the appellees have failed

to allege sufficient facts, which if proved, would

entitle them to relief.

FACTUAL AND PROCEDURAL HISTORY

The facts of this case and its procedural history

are sO entwined that we must address them

together.

On November 7, 1977, Pamela Muhammad and

Abdullah Muhammad, husband and wife, had a son,

Nazir, born to them at Magee-Womens Hospital in

Pittsburgh, Pennsylvania. Upon the parents’

request, a circumcision was performed on baby

Nazir, but the procedure apparently failed to

remove the entire foreskin.

Subsequent to the initial circumcision, a second

procedure was scheduled at Childrens’ Hospital in

Pittsburgh on December 16, 1977. During the

surgery, the infant suffered pulmonary edema as a

consequence of the general anesthesia and died

three days later.

Appellees initially retained the services of the

appellant, attorney James Thomas, Jr., to represent

them in the claim arising from the death of their

son. At the suggestion of Mr. Thomas, the

appellees subsequently retained the services of the

appellant law firm of Strassburger, McKenna,

Messer, Shilobod and Gutnick. Mr. Messer

assumed control of the case and filed a complaint

against Children's Hospital, Dr. Stuart E. Price, Jr.,

(the urologist who performed the second circumci-

sion) and Dr. Helen Westman (the attending anes-

thesiologist).

After the depositions of the above named physi-

Cians, settlement negotiations began and the defen-

danis offered a settlement figure of $23,000 to the

Muhammads. The Muhammads communicated

their acceptance of the offer to their attorneys. At

a pre-trial conference, the defendants increased the

offer to $26,500 at the suggestion of the court.

That settlement offer was accepted by the appellees.

At some point thereafter, the appellees informed

their attorneys of their dissatisfaction with the

amount of the amount of the settlement. The appel-

lants communicated their clients' dissatisfaction to

the opposing side, prompting the attorneys for the

defendants to petition the trial court for a Rule to

Show Cause why the settlement agreement should

not be enforced.

After an evidentiary hearing, the court deter-

mined that the appellees had agreed to the $26,500

settlement and had communicated such agreement

to the appellants. Based on those facts, the trial

court upheld the settlement agreement, ordered the

defendants to pay the settlement sum, and instructed

the prothonotary to mark the docket settled and dis-

continued when the funds were received.

Appellees obtained new counsel and appealed to

the Superior Court, which affirmed the settlement

order. Muhammad v. Childrens' Hospital of

Pittsburgh, 337 Pa. Super. 635, 487 A.2d 443

(1984) (unpublished memorandum opinion).

The Muhammads then filed the instant legal

malpractice suit against the attorneys who had rep-

resented them in the medical malpractice case.! In

response to appellee's second amended complaint,

the appellants’ filed preliminary objections in the

nature of a demurrer, alleging inter alia, that the

current action should be dismissed because it sought

to relitigate the settkement and because the

Muhammads' claim of loss was too speculative and

thus failed to state a cause of action. The trial court

granted the preliminary objections on the basis that

the action was barred by the Superior Court's deci-

sion in the medical malpractice case (collateral

estoppel).

1 The Muhammads' second amended complaint

contains the following counts: Fraudulent

Misrepresentation (deceit); Fraudulent Concealment

(deceit); Nondisclosure; Breach of Contract;

Negligence; Outrageous Conduct Causing Severe

Emotional Distress and Breach of Fiduciary Duty.

On appeal, the Superior Court reversed the

decision of the trial court, holding that the order

sustaining the preliminary objections could not be

affirmed upon the doctrine of collateral estoppel.

DI ION

At the outset, we agree with the Superior Court

that the appellees instant action is not barred by the

doctrine of collateral estoppel. In order to grant a

demurrer pursuant to that doctrine, the objecting

party must show that "the fact or facts at issue in

both instances were identical; [and] that these facts

were essential to the first judgment and were actu-

ally litigated in the first cause." Schubach v. Silver,

461 Pa. 366, 377, 336 A.2d 328, 334 (1975). We

have also required that the party against whom a

plea of collateral estoppel is asserted must have had

a full and fair opportunity to litigate the issue in

question in a prior action. In re Ellis' Estate, 460

Pa. 281, 287, 333 A.2d 728, 731 (1975). The issue

in the first case was whether Mrs. Muhammad had

authorized the settlement. The issues in the case

before us are whether the attorney appellants were

negligent and/or deceitful in their representation of

the Muhammads and, if so, whether the

Muhammads suffered harm as a result. It is thus

evident that the matter is not barred by the doctrine

of collateral estoppel as there are issues in this case

that were not litigated in the medical malpractice

case.

Although we find that collateral estoppel does

not bar this action, we do not believe that our

inquiry need or should cease there. Rather, prelim-

inary objections should have been granted due the

appellees’ failure to state a claim for which relief

can be granted.

This case must be resolved in light of our long-

standing public policy which encourages settle-

ments. Simply stated, we will not permit a suit to

be filed by a dissatisfied plaintiff against his attor-

ney following a settlement to which that plaintiff

agreed, unless that plaintiff can show he was

fraudulently induced to settle the original action.

An action should not lie against an attorney for

malpractice based on negligence and/or contract

principles when that client has agreed to a settle-

ment. Rather, only cases of fraud should be action-

able.

In order to reach this conclusion, we review the

facts of this case as they have evolved in the courts

of the Commonwealth. In deciding this case, we

are mindful of our standard of review for prelimi-

nary objections. As we said in the case of Vattimo

vy. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d

1231, 1232-33 (1983): |

All material facts set forth in the

complaint as well as all inferences rea-

sonably deducible therefrom are

admitted as true for [the purpose of

this review.] Clevenstein v, Rizzuto,

439 Pa. 397, 266 A.2d 623 (1970).

The question presented by the

demurrer is whether, on the facts

averred, the law says with certainty

that no recovery is possible. Hoffman

vy. Misericordia Hospital of

Philadelphia, 439 Pa. 501, 267 A.2d

867 (1970). Where a doubt exists as to

whether a demurrer should be

sustained, this doubt should be resolved

Al0

a lait

in favor of overruling it. Birl v.

i , 402 Pa. 297,

167 A.2d 472 (1960).

Our review of this case begins with the settle-

ment that occurred in the medical malpractice

action. The essence of a settlement is contractual in

nature. There is an offer (the settlement figure),

acceptance, and consideration (in exchange for the

plaintiff terminating his lawsuit, the defendant will

pay the plaintiff the agreed upon sum). Thus, the

trial court's enforcement of that settlement was

| merely upholding the terms of a binding contract.

| In the medical malpractice case which preceded

| the case sub judice, a binding contact was formed;

| Mrs. Muhammad agreed to the offered settlement

of the defendant-physicians and communicated such

| agreement to her attorney. The plaintiffs agreed to

dismiss the suit in exchange for the defendants

paying the sum of $26,500. It was only after that

contract was formed that she decided--for reasons

unknown at that time--that it just was not enough

‘money. Her change of mind, however, did not

All

entitle her to have the settlement agreement set

aside. As this court has stated;

The law demands of every man who

bargains with another that he should do

so only after due reflection of the pos-

sible consequences of his bargain and if

he misjudges the consequences that

could have been expected by a reason-

ably intelligent man, he cannot rely on

the law to remedy his fecklessness.

New Charter Coal Co. v. McKee, 411

Pa. 307, 312, 191 A.2d 830, 833

(1963).

This situation has been referred to as the "too

bad category" of contracts; although a party to a

contract believes he might have made a better deal

after he agreed to the original contract, he is

nonetheless bound by the terms of that primary

agreement. The courts of this Commonwealth,

relying on established principles of contract law,

upheld the Muhammads' settlement agreement.

Nevertheless, due to their dissatisfaction with the

settlement, the Muhammads subsequently filed the

instant action against the attorneys who represented

them throughout the medical malpractice case;

Al2

alleging negligence, breach of contract, fraudulent

concealment and nondisclosure.

Based on our strong and historical public policy

of encouraging settlements, we do not believe that

the Muhammads should be permitted to continue

with this lawsuit.

The primary reason we decide today to disallow

negligence or breach of contract suits against

lawyers after a settlement has been negotiated by

the attorneys and accepted by the clients is that to

allow them will create chaos in our civil litigation

system. Lawyers would be reluctant to settle a case

for fear some enterprising attorney representing a

disgruntled client will find a way to sue them for

something that "could have been done, but was

not." We refuse to endorse a rule that will discour-

age settlements and increase substantially the num-

ber of legal malpractice cases. A long-standing

principle of our courts has been to encourage set- -

tlements; we will not now act so as to discourage

* them.

Al13

In fact, this court promulgated Pa.R.C.P. 238

for the express purpose of encouraging pre-trial

settlement. "Thus, the format of Rule 238 is

responsive to its fundamental goal of prompting

meaningful negotiations in major cases so as to

unclutter the courts." Laudenberger v. Port Auth.

of Allegheny Cty., 496 Pa. 52, 60, 436 A.2d 147,

151 (1981), appeal dismissed, sub nom, Bucheit v.

Laudenberger, 456 U.S. 940 (1982). Although

Rule 238 was declared unconstitutional in Craig v.

Magee Mem. Rehab. Ctr., 512 Pa. 60, 515 A.2d

1350 (1986), the importance of settlements was

never challenged. Moreover, the new Rule 238

now stands as direct evidence of our commitment to

meaningful negotiations for settlement.2

2 ‘The. current Rule 238 of the Pennsylvania Rules of

Civil Procedure provides, in pertinent part, that:

(a)(1) At the request of the plaintiff in a

civil action seeking monetary relief for

bodily injury, death or property damage,

damages for delay shall be added to the

amount of compensatory damages

awarded against each defendant or

additional defendant found to be liable to

the plaintiff. ...

The explanatory comment following the Rule states

that the “Court in Craig did not ‘overrule the

| Al4

In 1982, the then Chief Justice of the United

States Supreme Court, Warren Burger, addressed

the American Bar Association and focused on the

growing wave of litigation that threatened to over-

whelm our legal system.3 The Chief Justice cen-

tered his concern on the "delay and lack of final-

ity"4 in litigation and remarked that "[i]t appears

that people tend to be less satisfied with one round

of litigation and are demanding a ‘second bite of the

apple’ far more than in earlier times.">

Particularly troublesome to the efficacy of the

courts are these "second bite” cases; they require

twice the resources as a single case, yet resolve only

a single litigant's claims--thus denying access to the

rationales of Laudenberger. . . for they have validity

of their own in the context of the ends sought,’ [cite

omitted]. . . Laudenberger set forth two purposes for

Rule 238: (1) to alleviate delay in the courts, and (2) to

encourage defendants to settle meritorious claims as

soon as reasonably possible."

3 Burger, Isn't There a Better Way?, 68 A.B.A.J. 274

(1982).

. 4 Id. at 274.

5 Id. at 275.

Al5

courts to litigants who have never had a single reso-

lution of their dispute. For that reason, henceforth

we should view "litigation concerning litigation"

cases with a jaundiced eye.

Numerous commentators have addressed the

problem of overcrowded courts and the importance

of settlements to the efficient flow of justice.® A

fundament of those articles is that settlement of

civil litigation is critical to the courts’ management

of caseloads. Without settlement of cases, litigants

would have to wait years, if not decades, for their

day in court. Nearly 90% of all matters in contro-

versy end in settlement.’ Were we, as a court, to

encourage litigation that would undermine the cur-

rent rate of settlements, we would do a grave injus-

6 See, e.g., Title, The Lawyer's Role in Settlement

Conferences, 67 A.B.A.J. 592 (1981); Menkel-Meadow,

For and Against Settlement: Uses and Abuses of the

Mandatory Settlement Conference, 33 UCLA L. Rev. 485

(1985); McThenia & Shaffer, For Reconciliation, 94

Yale L.J. 1660 (1985).

7 Galanter, Reading the Landscape of Disputes: What

We K Don't K and This We Know) Al

Qur Allegedly Contentious Society, 31 UCLA L.Rev. 4

(1983).

Al16

tice and disservice to the citizens of the

dl ea. tes one

Commonwealth. "The settlement of cases before

trial is one of the greatest potentials for assisting

the courts to reduce their caseloads."8 As courts

are fond of repeating, "[j]ustice delayed is justice

denied.” See e.g. Stottlemyer v. Stottlemyer, 458

Pa. 503, 522, 329 A.2d 892, 901 (1974), Roberts,

J., dissenting. |

| The Pennsylvania Constitution also expressly

| recognizes that access to the courts without delay is

a right to be enjoyed by all citizens. “All courts

shall be open; and every man for an injury done

| him. . . shall have remedy by due course of law,

and right and justice administered without...

delay.” Article I, Section 11 (emphasis supplied).?

x oe ltt I he ON on 7

8 Title, supra, at 592.

9 We do not mean to suggest that all wrongs can be

remedied by means of the court system. Many wrongs

do not have a correlative legal remedy and many

wrongs must be pursued by avenues other than the

court system. For example, workers injured on the job

may not sue their employers; the sole redress is

through the worker's compensation arbitration

system.

ioe ae,

In addition to promoting settlements for pur-

poses of judicial economy, there are other, more

Significant reasons that we encourage them.

Professor Menkel-Meadow provides a compelling

and eloquent statement of the purposes of settle-

ments in her article, For and Against Settlement:

Uses and Abuses of the Mandatory Settlement

nfer .

What a settlement offers is a substan-

tive justice that may be more respon-

sive to the parties’ needs than adjudi-

cation. Settlement can be particular-

ized to the needs of the parties, it can

avoid win/lose, binary results, provide

richer remedies than the commodifica-

tion or monetarization of all claims,

and achieve legitimacy through con-

sent. In addition, settlement offers a

different substantive process by allow-

ing participation by the parties as well

as the lawyers. Id. 33 UCLA L. Rev.

at 504-05.

Additionally, settlements reduce the stress and

concrescent negativity associated with protracted

litigation. As Abraham Lincoln remarked,

“[p]ersuade your neighbors to compromise when-

Al8

Se ee eee

ever you can. Point out to them how the nominal

winner is often a real loser--in fees, expenses, and

waste of time."!0 Those entering into litigation do

not do so with an attitude of insouciance; rather,

they often engage their adversary with bellicosity,

determined to be the victor at any price--even if

that victory is a Pyrrhic one. There is frequently

more than one losing party at the end of any litiga-

tion.

Protracted litigation is also counterproductive te

businesses and to workers. In spending so much

time and energy on the lawsuit, litigants neglect the

positive and productive aspects of their lives.

Those who are involved in lawsuits often do so to

the detriment of their lives, their businesses and

their families. It is more important for our society

to encourage citizens and businesses to retreat from

litigation and return to their lives. It little profits

society and its citizens to be overly engaged in the

business of litigation. Rather, everyone benefits

10 This statement is quoted in Burger, supra, at 275.

Al9

from litigants resolving their disagreements, set-

tling their disputes and returning to the business of

being productive members of society.

Mindful of these principles, we foreclose the

ability of dissatisfied litigants to agree to a settle-

ment and then file suit against their attorneys in the

hope that they will recover additional monies. To

permit otherwise results in unfairness to the attor-

neys who relied on their client's assent and unfair-

ness to the litigants whose cases have not yet been

tried. Additionally, it places an unnecessarily

arduous burden on an overly taxed court system.

We do believe, however, there must be redress

for the plaintiff who has been fraudulently

induced into agreeing to settle. It is not enough

that the lawyer who negotiated the original settle-

ment may have been negligent; rather, the party

seeking to pursue a case against his lawyer after a

settlement must plead, with specificity, fraud in the

inducement. "One may not. . .induce another to

contract by fraudulent misrepresentations."

ll Watercolor Gr Inc. v. William

A20

nc At oe ea

A AEE I de tee introns * & hi eee

Newbauer, Inc., 468 Pa. 103, 115, 360 A.2d 200,

206 (1976).

If the lawyer knowingly commits malpractice,

but does not disclose the error and convinces the

client to settle so as to avoid the discovery of such

error, then the client's agreement was fraudulently

obtained. This fraudulent inducement, however,

does not alter the settkement agreement between

plaintiff and defendant, since it is not. the opposition

who has committed the fraud, but the plaintiff's

own lawyer. As such, the settlement agreement

must be honored.

So that the plaintiff who has been defrauded may

have redress, however, we would permit him to

proceed under a theory of fraud against the attor-

ney who represented him in the original action.

This holding would reflect the law as it has long

existed in the Commonwealth; "[i]t is scarcely nec-

essary at this late jurisprudential hour in the day of

stare decisis to cite cases to certify that fraud taints

"with illegality and invalidity anything its evil

A21

shadow darkens." Jacoponi v. Plisko, 412 Pa. 576,

581, 195 A.2d 362, 365 (1963).11

In the event a litigant believes he has been

fraudulently induced into settling, he has the right

to file a suit, alleging with specificity the acts that

he claims are fraudulent. If his allegations meet the

standard of specificity required by Pa. R.C.P.

1019(b), then he will be allowed to proceed. In the

event those allegations do not meet the standard of

specificity, then the case will be dismissed upon the

filing of preliminary objections.

Turning to the facts of the case currently before

us, the plaintiffs have filed a complaint in which

they seek damages for, inter alia, fraudulent con-

cealment and nondisclosure. The alleged basis of

this deceit is that the attorneys were negligent and

in an attempt to cover up their negligence, con-

vinced the Muhammads to agree to the settlement.

11 Where, however, an attorney discloses to this

client that he has committed malpractice that affects

the value of the case, but the client agrees to settle

anyway, that client would also be barred from later

suing the attorney.

A22

The allegations, as they are set forth in the com-

plaint, are mere suppositions. The complaint

alleges a failure to sue another hospital and a drug

manufacturer (arguably negligence claims) as the

basis for the fraud. The fatal flaw with this boot-

strapping, however, is the failure to cite with any

specificity how the defendant attorneys acted with

fraud as opposed to mere negligence. Rather, the

complaint goes on at great length to ascribe the acts

of the defendant attorneys to "evil motive with an

attempt to deceive and mislead." Unless the plain-

tiff can more fully describe what facts support the

defendant attorneys’ “evil motives," we consider

those allegations as nothing more than unfounded

accusations which have no apparent basis in fact.!2

Both Rule 1019(b) of the Pennsylvania Rules of

Civil Procedure and case law require that fraud be

12 We take note of the fact that the complaint

forming the basis of the case before us is the

plaintiffs’ third attempt to draft a complaint that

“ survives preliminary objections. The complaint we

are reviewing is the plaintiffs’ second amended

complaint.

A23

plead with specificity. See, e.g., Local 163,

ional ion i rew

Watkins, 417 Pa. 120, 207 A.2d 776 (1965). The

appellees’ complaint does not rise to the level of

specificity that we require. 13

13 Aside from compelling public policy reasons for

dismissal and aside from appellants’ failure to plead

fraud with sufficient specificity, we not that the

plaintiffs have not made a prima facie showing that

the alleged failings of the lawyers decreased the

amount of money they would have received; they

point to no articulable error--such as missing a

Statute of limitations or being barred from presenting

expert testimony due to the failure to file an expert

report--which would substantially decrease’ or

eliminate the value of their case. There is thus a tatal

failure to show the harm suffered. Because the harm

suffered is so speculative, this complaint could not

have survived under contract or tort principles, even

if the plaintiff would have been allowed to sue on

those principles. See, ¢.g., Mariscotti_v. Tinari, 335 Pa.

Super. 599, 485 A.2d 56 (1984).

It becomes obvious that by allowing suits such as

this, which merely "second guess" the original

attorney's strategy, we would permit a venture into

the realm of the chthonic unknown. It is impossible

to state whether a jury would have awarded more

damages if a suit had been filed against another

potential party or under another theory of liability.

It is indeed possible that a smaller verdict would have

been reached or a defense verdict ultimately would

have been rendered. Thus, sanctioning these

"Monday-morning-quarterback" suits would be to

permit lawsuits based on speculative harm; something

with which we cannot agree.

A24

Accordingly, for these reasons set forth herein,

we hold that the plaintiffs’ complaint does not

establish sufficient facts, which if proved, would

entitle them to relief. Because "on the facts

averred, the law says with certainty that no recov-

ery is possible," Hoffman v. Misericordia Hospital

of Philadelphia, supra, at 503, 267 A.2d at 868, we

reverse the decision of the learned Superior Court

and dismiss the within complaint.

It is so ordered.

Mr. Justice Larsen files a dissenting opinion in

which Mr. Justice Zappala joins.

A25

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

PAMELA MUHAMMAD, No. 5, W.D. Appeal

Administratrix of the Estate of | Docket 1989

NAZIR MUHAMMAD and

ABDULLAH MUHAMMAD, | Appeal from the Order of

the Superior Court at No.

Appellees 218 Pittsburgh, 1987,

entered May 13, 1988,

vs reversing the Order of the

Court of Common Pleas,

STRASSBURGER, Civil Division, Allegheny -

MCKENNA, MESSER,

SHILOBOD and GUTNICK,

County, entered January 13,

1987 at No. GD 84-6520

a law partnership; and remanding the case.

HOWARD MESSER and

JAMES THOMAS, JR.., 374 Pa. Super 613,

543 A.2d 1138 (1988)

APPEAL OF

STRASSBURGER, ARGUED: March 5, 1990

MCKENNA, MESSER,

SHILOBOD and GUTNICK,

a law partnership; and

HOWARD MESSER

I IN

JUSTICE ROLF LARSEN FILED: MARCH 15, 1991

The majority has just declared a "LAWYER'S

HOLIDAY.". . . It's Christmastime for Pennsylvania

lawyers. If a doctor is negligent in saving a human life,

the doctor pays. If a priest is negligent in saving the

spirit of a human, the priest pays. But if a lawyer is neg-

ligent in advising his client as to a settlement, the client

A26

ee er ee Se

pays. . . .Thus, "filthy lucre" has higher priority than

human life and/or spirit. The majority calls this "Public

Policy." Maybe ... Maybe Not?? It sure expedites

injustice. Should we change the law so that non-lawyers

can be judges?

I dissent.

Mr. Justice Zappala joins in this dissenting

opinion.

A27

THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

In Re: Pamela Muhammad, Administratrix of the

Estate of Nazir Muhammad and Abdullah

Muhammad v. Strassburger, McKenna,

Messer, Shilobod and Gutnick, etc., et al.

Appeal of: Strassburger, McKenna,

Messer, Shilobod, et al.

W.D.A 1 Docket 198

"PER CURIAM:

And now, this 8th day of May,

1991, the Petitioner's, Pamela Muhammad,

Administratrix for the Estate of Nazir

Muhammad and Abdullah Muhammad,

petitions for reargument and _ for

clarification are hereby DENIED.

It is so ORDERED."

IRMA T. GARDNER

Deputy Prothonotary

A28

2 eS EINE an ere Nelle > yet ech aii

- DW POONER he + ma i Oe tees

SUPERIOR COURT OF PENNSYLVANIA

PITTSBURGH DISTRICT

PAMELA MUHAMMAD,

ADMINISTRATRIX OF THE

ESTATE OF NAZIR

MUHAMMAD AND

ABDULLAH MUHAMMAD,

APPELLANTS,

Vv NO 218

PITTSBURGH 1987

STRASSBURGER,

MCKENNA, MESSER,

SHILOBOD AND GUTNICK,

A LAW PARTNERSHIP,

HOWARD MESSER AND

JAMES THOMAS, JR.

ORDER

AND NOW, this 13th day of May, 1988, it is

ordered as follows:

Order affirmed.

X Order reversed. Case remanded for

proceedings consistent with this

Opinion, Jurisdiction is \

relinquished.

Judgment affirmed.

Judgment of Sentence affirmed.

A29

Judgment of Sentence reversed.

Order vacated and lower court directed to

proceed in accordance with opinion filed

herewith.

Order modified as set forth in opinion

filed herewith.

Costs to be taxed as provided by Chapter

27 of the Pa.R.A.P.

Costs to be taxed as provided in the

opinion filed herewith.

Appeal quashed.

BY THE COURT

/s/ ELEANOR R. VALECKO

DEPUTY PROTHONOTARY

A30

PAMELA MUHAMMAD, IN THE

Administratrix of the Estate of | SUPERIOR COURT

Nazir Muhammad and OF PENNSYLVANIA

Abdullah Muhammad,

Appellants

Vv.

STRASSBURGER,

McKENNA, MESSER,

SHILOBOD AND GUTNICK,

: A Law Partnership,

HOWARD MESSER, and

i JAMES THOMAS, JR. NO. 00218 PGH 87

a cal AINA PaO hn em oe ts Dd oan one Re aly be

Appeal from the Order entered January 13, 1987

in the Court of Common Pleas of Allegheny County,

Civil Division,

at No. GD84-6520

BEFORE: BROSKY, DEL SOLE, AND HOFFMAN, JJ.

OPINION BY HOFFMAN, J: FILED: MAY 13, 1988

A31

This appeal is from the order below sustaining a

demurrer and entering judgment in favor of

appellees in a legal malpractice action. Appellants

contend that the trial court erred in concluding that

their cause of action is barred by this Court's prior

decision in Muhammad v. Children's Hosp. of

Pittsburgh, 337 Pa. Superior Ct. 635, 487 A.2d 443

(1984). For the reasons that follow, we reverse the

order below and remand the case for proceedings

consistent with this opinion.

The relevant procedural history, as summarized

by the trial court, is as follows:

This matter is before the court on

the third preliminary objections of

[appellees] to [appellants'] complaint

and on [appellants'] petition for change

of venue in a legal malpractice action.

[Appellants] are the parents of

Nazir Muhammad, who was born on

November 7, 1977 and died shortly

thereafter.

In November of 1977, an incom-

plete circumcision was performed on

A32

ee ee Se ee a aay

nt Pe A i ll A IT lt 5 ty Ne Se

Nazir Muhammad at Magee-Womens

Hospital. On December 16, 1977,

Nazir Muhammad was operated upon

again to complete the removal of his

foreskin. As a consequence of the

preparation for general anesthesia, he

suffered pulmonary edema and died

three days later in the Children's

Hospital at Pittsburgh, Pennsylvania.

In March, 1978 [appellants]

employed [appellee] James Thomas,

Jr., [Esq.] to represent them. In

October of the same year, [appellants]

retained and employed [appellee] law

firm and the individual member of that

firm to prosecute [appellants’] claim.

On November 18, 1978, [appellees]

filed a notice of complaint with the

Medical Arbitration Board against

Children's Hospital, and Stewart E.

Price, Jr. (the urologist performing the

second circumcision) and Helen

Westman (the anesthesiologist attend-

ing the decedent). In April of 1979, an

action was filed against the same

defendants in the Court of Common

Pleas of Allegheny County.

Due to [appellees'] representation

and advice to [appellants], [appellants]

agreed as a result of a pretrial concil-

lation before Judge Wekselman, to

A33

accept a settlement offer in the amount

of $26,500.00.

[Appellants] thereafter became

dissatisfied with the settlement to

which they had agreed and attempted

to have the Court prevent enforcement

of the settlement. The original com-

plaint states that the Court by Order

entered the 23rd day of April, 1982

confirmed the settlement and that the

Superior Court of Pennsylvania

{affirmed the order] on November 23,

1984.

[Appellants] filed the action

presently before the Court by praecipe

on April 19, 1984. The complaint in

the matter was filed on or about April

2, 1986.

Trial Court Opinion at 1-2 (footnote omitted).

The complaint set forth eight counts of allegedly

wrongful conduct, deriving from appellees’ prior

legal representation of appellants. Appellees then

raised preliminary objections in the nature of a

demurrer to all counts of appellants' complaint.

The trial court noted that the issue presented was

“whether [appellants'] cause of action is barred by

the prior opinion of the Superior Court in this

A34

matter." Id. at 6. The court, without discussion,

cena ces ont us er celal

then entered an order sustaining appellees’ demur-

rer and entering judgment in favor of appellees.

This appeal followed.

= A preliminary objection in the

nature of a demurrer is not to be sus-

tained and the complaint dismissed

unless the law says with certainty that

no recovery is possible. Hoffman v.

Misericordia Hosp. of Phila., 439 Pa.

501, 267 A.2d 867 (1970). Therefore,

if any theory of law will support the

claim raised by the [complaint], a dis-

missal is improper... .

For the purpose of our review of a

dismissal on the pleadings in the nature

of a demurrer, the averments [in the

complaint], except to the extent that

they constitute conclusions of law,

must be taken as true, Freezer Storage,

Inc. v. Armstrong Cash Co., 476 Pa.

270, 382 A.2d 715 (1978). ...

lanfrani_v mmonwealth, State Empl

Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468,

469 (1984). See also Aetna Electroplating Co. v.

- Jenkins, 335 Pa. Superior Ct. 283, 285, 484 A.2d

134, 135 (1984). When, as here, the complaint

A35

alleges a cause of action based upon legal malprac-

tice, three essential elements must be established:

1. The employment of the attorney or

other basis for duty;

2. The failure of the attorney to ex-

ercise ordinary skill and knowledge;

and

3. That such negligence was the

proximate cause of damage to the

plaintiff.

Schenkel v. Monheit, 266 Pa. Superior Ct. 396, -

399, 405 A.2d 493, 494 (1979) (quoting R. Mallen

& V. Levit, Legal Malpractice 123 (1977) (footnote

omitted). See also ei bon ee baya ghananee v.

Black, 350 Pa. Superior Ct. 134, 140, 504 A.2d

281, 284 (1986). With these principles in mind, we

consider the facts presented below.

The trial court did not state the reasoning behind

its conclusion that appellants’ cause of action is

barred by our prior decision. Following a review

of the brief filed in support of appellees’ prelimi-

nary objections, and the parties’ briefs on appeal,

A36

(VAN bi nek ak lll

however, we can surmise that the court's decision

was based on the following analysis:

1. Appellants, to recover in a legal

malpractice action, had to show that

they suffered pecuniary damages as a

proximate result of appellees’ prior

representation;

2. To prove those damages, appellants

had to show that the settlement of their

previous claim, obtained through the

services of appellees, was inadequate;

3. The question of the adequacy of the

prior settlement was previously liti-

gated, and that decision was affirmed

by this Court in Muhammad __v.

Children's Hosp. of Pittsburgh, supra;

and

4. Because the adequacy of the prior

settlement already was litigated, appel-

lants are barred from bringing this ac-

tion under

a. the doctrine of the law of the case,

and/or

b. the doctrine of collateral estoppel.

A37

See Brief in Support of [appellees'] Third

Preliminary Objections at 4-11; Brief for

Appellants at 8; Brief for Appellees at 6.

Appellants contend that both the "law of the

case" and "collateral estoppel" doctrines are inap-

plicable to the case at bar, and thus the trial court

erred in sustaining appellees’ demurrer and enter-

ng judgment in favor of appellees. We agree that

the two doctrines are inapplicable.

I. LAW OF THE CASE

The "law of the case" doctrine applies only if,

inter alia, the parties on the two appeals are the

same. “It is hornbook law that issues decided by an

appellate court on a prior appeal between the same

Parties become the law of the case and will not be

reconsidered on a second appeal.” mmonwealth

v. Tick, Inc., 431 Pa. 420, 427, 246 A.2d 424, 427

(1968) (citations omitted) (emphasis supplied). See

also Burke v. Pittsburgh Limestone Corp., 375 Pa.

390, 394, 100 A.2d 595, 598 (1953) ("[t]he doc-

trine of ‘the law of the case’ is that, when an appel-

A38

SO rs eon. at eX ae Ch

late court has considered and decided a question

submitted to it upon appeal, it will not, upon a sub-

sequent appeal on another phase of the same case,

reverse its previous ruling even though convinced

that it was erroneous ... .") (citation omitted)

(emphasis supplied); Daniels v. State Farm Mut.

Auto Ins. Co., 305 Pa. Superior Ct. 352, 356, 451

A.2d 684, 686 (1982) (same); Albright v. Wella

Corp., 240 Pa. Superior Ct. 563, 567, 359 A.2d

460, 463 (1976) (same). Accord 21 C.J.S. Courts

Section 195a, at 330 (1940) (" ‘Law of the case’...

means that whatever is once irrevocably established

as the controlling legal rule of decision between the

ies in the same cas ntin h

law of the case... .") (emphasis supplied).

Here, although appellants, the Muhammads,

were parties in the prior appeal, it is uncontested

that appellees were not. Thus, for "law of the case"

purposes, this appeal does not involve the same

"case" as the prior appeal. Accordingly, we con-

clude that the law of the case doctrine does not bar

A39

appellants’ action, and the trial court order is not

affirmable on this basis.

II. COLLATERAL ESTOPPEL

"The doctrine of collateral estoppel is a broader

concept than res judicata. It operates to prevent a

question of law or an issue of fact which has once

been litigated and adjudicated finally in a court of

competent jurisdiction from being relitigated in a

subsequent suit." Day v. Volkswagenwerk

Aktiengesellschaft, 318 Pa. Superior Ct. 225, 236,

464 A.2d 1313, 1318 (1983) (citations omitted).

For the doctrine of collateral estoppel to apply, it

must appear that

1. the fact or facts at issue in both in-

stances were identical;

2. these facts were essential to the

first judgment;

3. the parties must have had an

opportunity to ‘actually litigate’ the

issue; and

4. the facts were actually litigated in

the first cause.

A40

Schubach_ v. Silver, 461 Pa. 366, 377, 379, 336

A.2d 328, 334, 334-35 (1975). See also Matson v.

Housing Auth. of Pittsburgh, 326 Pa. Superior Ct.

109, 112-13, 473 A.2d 632, 634 (1984); Long _v.

Long, 306 Pa. Superior Ct. 142, 144, 452 A.2d

255, 256 (1982); Lebeau _v. Lebeau, 258 Pa.

Superior Ct. 519, 525-26, 393 A.2d 480, 482-83

(1978); Restatement (Second) Judgments Section

27; Restatement Judgments Section 68.

Here, appellees argue that the issue common to

both this appeal and the prior appeal is the question

of the adequacy of the settlement of appellants’ suit

against Children's Hospital. Appellees maintain that

this factual question has already been litigated ad-

versely to appellants in the prior appeal. In con-

trast, appellants argue, inter alia, that the only fac-

tual issue presented and resolved in the former ac-

tion was whether appellants had authorized

appellees to settle their claim. Appellants submit

. that the observations made both by the trial court

and this Court in the prior appeal regarding the

A4l

adequacy of the settlement were not essential to the

disposition of that matter, and thus cannot preclude

the litigation of the issue in this action. We agree.

In determining whether the question of the ade-

quacy of the settlement was already decided in the

prior appeal, we necessarily must examine the rele-

vant portions of the record in the prior case. See

M v. Housing Auth. of Pi rgh, supra. The

certified record in the instant case contains both the

notes of testimony from the hearing held to deter-

mine whether the settlement should be enforced, as

well as the trial court's order and opinion on the

issue, and our Memorandum affirming the trial

court. See Brief in Support of Third Preliminary

Objections, Exhibits "A" & "B". Compare Matson

v. Housing Auth. of Pittsburgh, supra.

A review of these documents reveals that appel-

lants initially settled their medical malpractice

action against Children's Hospital and the two indi-

vidual defendants. The settlement was reached

following a pre-trial conference. Thereafter, the

A42

defendant hospital learned that appellants were not

satisfied with the settlement, so it petitioned the

trial court for a rule to show cause why the settle-

ment should not be enforced. The court then held

an evidentiary hearing, at which Pamela

Muhammad, one of the appellants, testified. After

the hearing, the trial court issued an order making

the rule absolute, and authorized the defendants to

pay into court the settlement sum. Appellants filed

an appeal with this Court, and we affirmed in an

unreported Memorandum.

The issue presented at the hearing held on the

rule to show cause was whether counsel [appellees

herein] were authorized to enter into the settlement

with Children's Hospital. See N.T. April 23, 1982

at R-2. The court concluded that Pamela

Muhammad had indeed authorized the settlement,

noting that,

It's the Court's conclusion from the

testimony and from the in chambers

discussion in which Mr. Messer indi-

cated that he was of the belief that he

A43

~~ Ge

was authorized to enter into the settle-

ment that has been corroborated by

Mrs. Muhammad who indicates that

she did indeed authorize a settlement

even at $23,000 if counsel felt that

were the proper settlem at. The only

difficulty is that she has changed her

mind since that time and now believes

the settlement to be inadequate.

Having authorized the settlement, she is

not privileged to change her mind at

this point. Had counsel not been

authorized to enter into the settlement

that, of course, would have been an

entirely different matter, but the

proper authority having been granted

we simply cannot permit these cases to

bounce around back and forth. It is

the Court's view, as it was then, that

the settlement agreement is a proper,

just and equitable settlement in the cir-

cumstances, or the Court would not

have suggested it....

Id. at R-7. The court reiterated this conclusion in

its opinion:

[Mrs. Muhammad] testified that she

had authorized [her] counsel .. . to

enter into the settlement and that she

had since had a change of mind. Her

change of mind does not alter the fact

that she had authorized the settlement

and that, in the view of the Court, the

A44

settlement was indeed an advantageous

one -- given the apparent difficult

liability and damages questions in the

j case.

Trial Court Opinion May 21, 1982 at 1.

Similarly, the relevant issue presented to, and

decided by, this Court on appeal, was framed by the

Superior Court panel as follows:

| Appellants suggest four reasons

why this Court should set aside the set-

tlement agreement and allow the appel-

lants to proceed to a trial on the

merits. . . .[Fourth], appellants suggest

that Mrs. Muhammad never expressly

authorized their previous attorney...

to settle their claim.

Muhammad v. Children's Hosp., 337 Pa. Superior

Ct. 635, 487 A.2d 443 (1984), unpublished

Memorandum at 2-3.! Our Court's entire discus-

sion of this issue was as follows,

1 The other three issues presented, not relevant to

this appeal, were

1. whether Mr. Muhammad expressly

consented to the agreement;

2. whether the court’ erred in

presiding over both’ the _ pre-trial

conference and the evidentiary hearing;

| and

nth Nel MDM Mash sali Teak

A45

Appellants finally suggest that Mrs.

Muhammad did not give her express

consent to Mr. Messer to settle the

appellants’ claim. The trial court

found that Mr. Messer did have this

authority, and that Mrs. Muhammad

had merely changed her mind after the

settlement agreement had been con-

cluded. Trial Court Opinion at 1.

Of course, an attorney may not set-

tle his clients’ claim without express

authorization from his clients. Tucker

v. Tucker, 370 Pa. 8, 19, 87 A.2d 650,

656 (1952). The trial court's finding,

however, that Mr. Messer was autho-

rized to settle is wholly supported by

the record. In chambers, Mr. Messer

informed Judge Wekselman that he

believed he was authorized to settle the

claim. Reproduced Record at 2: Mrs.

Muhammad also testified that she

authorized Mr. Messer to settle for a

specific sum, but later became dissatis-

fied with the amount of this sum.

Reproduced Record at 5. Thus, there

is no reason for this Court to disturb

3. whether the court erred’ in

proceeding with the evidentiary

hearing when Mrs. Muhammad was

unrepresented by counsel.

See Muhammad v. Children's Hosp. of Pittsburgh,

Supra, unpublished Memorandum at 1-2.

LR eas

the trial court's factual finding that

Mr. Messer had the appellants’ express

consent to settle the claim filed against

appellees. Moreover, we agree with

Judge Wekselman's assessment that the

settlement was beneficial to the appel-

lants; interests since, at trial, they

would have had great difficulty in

establishing that any of the appellees

behaved negligently.

Muhammad _ v. Children's Hospital of Pittsburgh,

supra, unpublished Memorandum at 6-7.

Our review of both the hearing transcript and

the trial court and Superior Court opinions in the

prior case convinces us that the only question

essential to the decision in that case was whether

appellants had authorized the settlement. Both the

trial court, and the Superior Court panel recog-

nized that, if appellants had not authorized the set-

tlement, basis might have existed for the trial court

to refuse to enforce the settlement. See, e.g.,

Rothman v. Fillette, 503 Pa. 259, 264, 469 A.2d

543, 545 (1983); Tucker v. Tucker, 370 Pa. 8, 19,

87 A.2d 650, 656 (1952). The trial court found,

however, as a factual matter, that appellants indeed

A47

had authorized the settlement; and, because the

record "wholly supported" this finding, we

affirmed.

The gravamen of appellees’ collateral estoppel

argument, and the basis for their preliminary

objections, derives from the comments made by this

Court and the trial court that the settlement was

"beneficial" or "advantageous" to appellants. These

comments, however, which followed the findings

that appellants had authorized the settlement, were

merely dictum. The comments apparently were

made in reference to the testimony of Pamela

Muhammad, who stated that she felt the amount of

the settlement was “unfair.” N.T. April 23, 1982,

at R-3 to 4. The fairness or adequacy of the settle-

ment, however, could not have been essential to the

decision on the hospital's petition for a rule to show

cause because, assuming appellees were authorized

to settle the case, the adequacy of the settlement was

irrelevant to the determination whether the hospital

was entitled to have the settlement enforced against

A48

ee ee eee

appellants. Cf. Restatement (Second) Agency

Section 15, Comment (c) ("until the [agency]

agreement is rescinded, the relation continues and

acts done in pursuance of it are effective as to third

persons") (emphasis supplied).

Because the courts’ comments regarding the

adequacy of the settlement were not essential to the

first judgment, they cannot act now to bar appel-

lants under a collateral estoppel theory. See, e.g.,

Schubach vy. Silver, supra; Matson v. Housing Auth.

of Pittsburgh, supra. Accordingly, we conclude

that the trial court's order sustaining the demurrer

and entering judgment in favor of appellees cannot

be affirmed based on collateral estoppel.

CONCLUSION

For the foregoing reasons, we hold that the trial

court erred in concluding that appellants’ cause of

action in the instant case is barred by our prior

decision in Muhammad v. Children's Hosp. of

Pittsburgh. Appellants are not barred from litigat-

ing the adequacy of the settlement; thus, a demurrer

A49

to their legal malpractice action cannot be sustained

on the ground that appellants cannot prove that

pecuniary damages resulted from appellees’ prior

legal representation. Accordingly, because we are

satisfied that our prior decision does not preclude

appellants from bringing this action, we reverse the

order below sustaining the demurrer and entering

judgment in favor of appellees, and remand the case

for proceedings consistent with this opinion.2

Reversed and remanded. Jurisdiction is relin-

quished.

2 In their briefs filed on appeal, both parties address

the question whether, assuming our prior decision

does not act as a bar, appeliants' complaint otherwise

sets forth a valid cause of action for legal malpractice.

We note, however, that the trial court explicitly based

its order upon its conclusion that our prior decision

in Muhammad v, Children's Hosp, of Pittsburgh bars

the present action. Accordingly, we need not

determine, and we express no view regarding, the

question whether appellants' complaint otherwise

sets forth a valid cause of action. It will be for the

trial court on remand to determine’ whether

appellants' complaint otherwise sets forth a_ valid

cause of action for legal malpractice.

A50

IN THE COURT OF COMMON PLEAS

OF ALLEGHENY COUNTY, PENNSYLVANIA

CIVIL DIVISION

PAMELA MUHAMMAD,

Administratrix of the Estate of

NAZIR MUHAMMAD and NO. GD 84-6520

ABDULLAH MUHAMMAD,

Plaintiffs,

Vv.

STRASSBURGER,

McKENNA, MESSER,

SHILOBOD and GUTNICK,

a law partnership,

| HOWARD MESSER and

JAMES THOMAS, JR.

Defendants.

ORDER OF COURT

AND NOW, to wit, this 13th day of January,

1987, upon the preliminary objections filed by the

defendants, it is hereby ORDERED, ADJUDGED

7 and DECREED that said demurrer is sustained and

judgment entered in favor of the defendants.

a EET a PS Sr St, 4

A51

It is further ORDERED that plaintiffs’ petition for

change of venue is denied.

BY THE COURT

s/ FINKELHOR

A52 |

IN THE COURT OF COMMON PLEAS

OF ALLEGHENY COUNTY, PENNSYLVANIA

PAMELA MUHAMMAD,

Administratrix of the Estate of

NAZIR MUHAMMAD and

ABDULLAH MUHAMMAD,

Plaintiffs,

Vv.

STRASSBURGER,

McKENNA, MESSER,

SHILOBOD and GU™ ICK,

a law partnership, .

HOWARD MESSER and

JAMES THOMAS, JR.

Defendants.

A53

CIVIL DIVISION

NO. GD 84-6520

OPINION AND ORDER

OF COURT SUSTAINING

DEFENDANTS'

PRELIMINARY

OBJECTIONS AND

DENYING CHANGE OF

VENUE

January 13, 1987

FINKELHOR, J.

Copies sent to:

Kenneth W. Behrend, Esq.

James R. Schadel, Esq.

James Thomas, Esq.

IN THE COURT OF COMMON PLEAS

OF ALLEGHENY COUNTY, PENNSYLVANIA

CIVIL DIVISION

PAMELA MUHAMMAD,

Administratrix of the Estate of

NAZIR MUHAMMAD and NO. GD 84-6520

ABDULLAH MUHAMMAD,

Plaintiffs,

wé

STRASSBURGER,

McKENNA, MESSER,

SHILOBOD and GUTNICK,

a law partnership,

HOWARD MESSER and

JAMES THOMAS, JR.

Defendants.

7 OPINION

FINKELHOR, J.

This matter is before the court on the third pre-

liminary objections of defendants to plaintiffs’

complaint and on plaintiff's petition for change of

venue in a legal malpractice action.

A54

Background

Plaintiffs are the parents of Nazir Muhammad,

who was born on November 7, 1977 and died

shortly thereafter.

In November of 1977, an incomplete circumci-

sion was performed on Nazir Muhammad at

Magee-Womens Hospital. On December 16, 1977,

Nazir Muhammad was operated upon again to

complete removal of his foreskin. As a conse-

quence of the preparation for general anesthesia, he

suffered pulmonary edema and died three days later

in the Children's Hospital at Pittsburgh,

Pennsylvania.

In March, 1978, plaintiffs employed defendant

James Thomas, Jr., to represent them. In October

of the same year, plaintiffs retained and employed

the defendant law firm and the individual member

of that firm to prosecute plaintiffs’ claim.

On November 18, 1978, defendants filed a

notice of Complaint with the Medical Arbitration

Board against Children's Hospital, and Stewart E.

AS55

Price, Jr. (the urologist performing the second cir-

cumcision) and Helen Westman (the anesthesiologist

attending the decedent). In April of 1979, an action

was filed against the same defendants in the Court

of Common Pleas of Allegheny County.

Due to defendants’ representation and advice to

plaintiffs, plaintiffs agreed as a result of a pretrial

conciliation before Judge Wekselman, to accept a

settlement offer in the amount of $26,500.00. -

Plaintiffs thereafter became dissatisfied with the

settlement to which they had agreed and attempted

to have the Court prevent enforcement of the set-

tlement. The original complaint states that the

Court by Order entered the 23rd day of April,

1982 confirmed the settlement and that the Superior

Court of Pennsylvania denied the appeal filed by

plaintiffs relating to the settkement on November

23, 1984.

Plaintiffs filed the action presently before the

Court by praecipe on April 19, 1984. The com-

A56

ee ee ee eee eee eee

plaint in this matter was filed on or about April 2,

1986."

Defendants seek a demurrer to all counts of

plaintiff's complaint. Additionally, plaintiffs seek a

change of venue.

Position of the Parties

Plaintiffs seek a shift of venue in this matter

from Allegheny County. Plaintiffs contend that,

due to the special relationship that the judges of

Allegheny County have with their fellow jurist

Judge Eugene B. Strassburger III, no judge can sit

on this case without an appearance of bias.

Defendants contend that plaintiffs’ request is in

effect, a request that the court peremptorily recuse

all 43 members of this court. Defendants also seek

a demurrer to all counts of plaintiffs’ complaint,

contending that plaintiffs have failed to establish a

cause of action in this matter.

A57

Discussion

1, Change of Venue

Plaintiffs have filed the instant action in the

Court of Common Pleas of Allegheny County.

They have voluntarily submitted themselves to

Allegheny County jurisdiction. In the absence of

gross impropriety, plaintiffs have waived all objec-

tions to venue.

As stated in the case of Alan Wood Steel

Company v. School District of Philadelphia, 425

Pa. 455, 229 A.2d 881 (1967):

“Moreover, the taxpayer voluntar-

ily submitted itself to the jurisdiction

of Philadelphia County. By the insti-

tution of its action the taxpayer waived

the issue of venue." 229 A.2d at 885

In addition to the fact that plaintiff, by submit-

ting itself to venue in the Courts of Allegheny

County, has waived the issue of venue, it is also

apparent to the court that plaintiff is, in effect ask-

ing for this court to grant a general recusal for all

the judges in Allegheny County.

A58

In Reilly by Reilly v. Southeastern Pa. Transp.

Auth., 507 Pa. 204, 489 A.2d 1291 (1985), the

Supreme Court of Pennsylvania recently set forth

the procedure by which a motion to disqualify a

judge is to be resolved. In Reilly, the Pennsylvania

Supreme Court stated that Canon 3C of the Code of

Judicial Conduct:

". . . does not have the force of

substantive law, but imposes standards

of conduct upon the judiciary to be

referred to by a judge in his self-

assessment of whether he should volun-

teer to recuse from a matter pending

before him. The rules do not give

standing to others, including Superior

Court, to seek compliance or enforce-

ment of the Code because its provisions

merely set a norm of conduct for all

our judges and do not impose substan-

tive legal duties on them.

Similarly, we have held that the

Code of Professional Conduct, appli-

cable to the conduct of attorneys does

not have the force of substantive law."

489 A.2d at 1298. (Emphasis in the

original.)

A59

Plaintiffs’ reliance upon Canon 3C as substantive

law in their attempt to recuse all the judges of the

Court of Common Pleas of Allegheny County is

misplaced. Therefore, plaintiffs' request for

change of venue (which is, in effect, a request for

recusal), is substantively improper.

In Reilly, supra., the Supreme Court also stated:

"... it is still the duty of the party,

who asserts that a judge should be dis-

qualified, to allege by Petition, the

bias, prejudice or unfairness necessitat-

ing recusal. Commonwealth v.

Darush, Id.; Commonwealth v. Perry,

Id. A failure to produce a sufficient

plea will result in a denial of the

recusal motion.” 489 A.2d at 1299.

Plaintiffs allege that members of the defendant

law firm share social, familial and economic rela-

tionships with all of the members of the bench in

the Court of Common Pleas of Allegheny County.

When a charge of disqualification is made against a

Judge, the party must produce specific allegations

supported by evidence which has a tendency to

show bias, prejudice or unfairness. In the present

A60

matter, plaintiffs have failed to allege any facts

which wouid support a petition for change of venue

based on the recusal of all of the judges in

Allegheny County.

Plaintiffs’ petition for change of venue on the

basis of recusal is also improper procedurally. In

Reilly, supra., the Court stated:

"The proper practice on a plea of prej-

udice is to address an application by

petition to the judge before whom the

proceedings are being tried. He may

determine the question in the first

instance, and ordinarily his disposition

of it will not be disturbed unless there

is an abuse of discretion.” 489 A.2d

1299.

According to this case, Plaintiffs’ petition for

change of venue is premature. This case has not yet

been assigned to a trial judge and it is improper for

the Court at this time to grant a "blanket" recusal of

all judges in Allegheny County by shifting the

venue in this action to a different county.

Therefore, plaintiffs’ petition for change of venue

is denied in the present matter.

A6l

2. Preliminary Obiecti

Defendant has also raised preliminary objections

in the nature of a demurrer to al! counts of plain-

tiffs' complaint. The issue is whether plaintiff's

cause of action is barred by the prior opinion of

the Superior Court in this matter. See Muhammad

y. Children's Hospital, No. 601 Pittsburgh 1982

(Slip Opinion). Said demurrer is sustained and an

appropriate Order is attached hereto.

eight

Plaintiffs’ complaint in the present matter consists of

counts:

II.

VI.

VII.

VIII.

Fraudulent Misrepresentation (Deceit)

Fraudulent Concealment (Deceit)

Nondisclosure —

Breach of Contract

Negligence - But For Standard

Negligence - Substantiated Facts Standard

Outrageous Conduct Causing Severe Emotional

Distress

Breach of Fiduciary Obligation

A62

- ee tee th cee eee

IN THE COURT OF COMMON PLEAS

OF ALLEGHENY COUNTY, PENNSYLVANIA

PAMELA MUHAMMAD,

administratrix of the Estate of

NAZIR MUHAMMAD, and

ABDULLAH MUHAMMAD,

Plaintiffs,

VS.

STRASSBURGER,

MCKENNA, MESSER,

SHILOBOD AND GUTNIK,

a law Partnership,

HOWARD MESSER, and

JAMES THOMAS, JR.,

Defendants.

JURY TRIAL DEMANDED

CIVIL DIVISION

GD 84-6520

Code 011

SECOND AMENDED

COMPLAINT

Filed on behalf of:

Pamela Muhammad,

Administratrix of the Estate

of Nazir Muhammad, and

Abdullah Muhammad

Counsel of Record for

Party:

Kenneth W. Behrend,

Esquire

Pa. I.D. No. 00406

BEHREND, MORAN,

ERNSBERGER &

TAMILIA

Firm I.D. No. 018

1320 Grant Building

Pittsburgh, PA 15219

ACCEPTANCE OF SERVICE

I CERTIFY THAT A TRUE AND CORRECT COPY OF

THE WITHIN PLEADING WAS MAILED POSTAGE

PREPAID TO ADVERSE COUNSEL THIS 19 DAY OF

May, 1921

ATTORNEY FOR Plaintiff

A63

SECOND AMENDED COMPLAINT

This action is brought on behalf of the Plaintiffs

by and through their lawyer, Kenneth W. Behrend

and the law firm of Behrend, Moran, Ernsberger &

Tamilia. The statement of their injuries and dam-

ages and the basis in fact and law under which they

are entitled to recover are set forth below.

1. Plaintiff, Pamela Muhammad is the mother

of the deceased, baby boy, Nazir Muhammad. She |

is the Administratrix of his estate, No. 5024 of

1978. She and Abdullah Muhammad, now

divorced, were married at the time of the birth and

death of Nazir Muhammad. Pamela Muhammad, at

all times material, hereto, and at the present time, is

a resident of Allegheny County, Pennsylvania.

2. Abdullah Muhammad is the father of the

deceased baby boy, Nazir Muhammad. He is a

resident of Denver, Colorado.

3. Strassburger, McKenna, Messer, Shilobod

and Gutnik, is a partnership of lawyers organized

to practice Law. Howard Messer is a partner and

A64

er a

an individual defendant. They maintain an office in

Pittsburgh, Pennsylvania.

4. At all times material, hereto, the firm of

Strassburger, McKenna, Messer, Shilobod and

Gutnik and Howard Messer held themselves out as

lawyers and experienced practitioners specializing

in Medical Malpractice cases; possessing superior

knowledge and skill in such cases.

5. Defendant, James Thomas, Jr., is a lawyer

with an office in Pittsburgh, Pennsylvania. At all

times material hereto he was engaged in the general

practice of the law.

6. Nazir Muhammad, the deceased son of

Pamela Muhammad and Abdullah Muhammad, was

born November 7, 1977. He died December 19,

1977, in The Children's Hospital, at Pittsburgh,

Pennsylvania.

7. In November of 1977, an incomplete cir-

cumcision was performed at the Magee-Womens

Hospital on Nazir Muhammad by an employee-

“surgeon of the hospital, who was authorized to per-

A65

form the operation in the scope of his employment.

The attempted circumcision was negligently per-

formed, in that, it was not done according to the

standard of a reasonable man using due care under

the circumstances. The technique of operation

deviated from the required standard of care, which

was to remove the proper amount of foreskin in

one operation. The operation resulted in the

removal of an insufficient amount of foreskin and

causing his penis to have a redundant prepuce with

phimosis, a condition of his penis that threatened

the integrity of the penis and presented a hygiene

and health hazard.

8. On December 16, 1977 at the Children's

Hospital of Pittsburgh, Nazir Muhammad was

operated upon again to complete the removal of the

foreskin. As a consequence of succinylcholine

given to him in preparation for general anesthesia

he suffered fatal pulmonary edema. He lingered

until December 19, 1977, and died from pulmonary

insufficiency.

A66

9. In the month of March, 1978, Plaintiffs

retained and employed defendant, James Thomas,

Jr., to représent them in a claim arising from the

death of their infant son, Nazir Muhammad.

10. In the month of October, 1978, Plaintiffs, at

the urging of defendant, James Thomas, Jr.,

retained and employed the defendant law firm and

the defendant individual member of that firm to

prosecute the claim arising from the death of their

infant son, Nazir Muhammad.

11. The defendants had The Register of Wills of

Allegheny County on October 26, 1978, at Number

5024 of 1978, grant Letters of Administration unto

Abdullah Muhammad. Abdullah Muhammad, sub-

sequently, on July 3, 1984, renounced his nights-to

administer the estate of his son, Nazir Muhammad,

and resigned, giving the duties of Administratrix of

the said estate to Pamela Muhammad, the mother of

the decedent.

12. On November 18, 1978, Defendants filed

Notice of Complaint with the Medical Arbitration

A67

Board on behalf of Plaintiffs against; Children's .

Hospital of Pittsburgh, Stuart E. Price, Jr., M.D.,

and Helen Westman, M.D.

13. On April 13, 1979, Defendants filed a

Complaint in the Court of Common Pleas of

Allegheny County, Pennsylvania, on behalf of

Plaintiffs against; Children's Hospital of

Pittsburgh, Stuart E. Price, Jr., M.D., and Helen

Westman, M.D.

14. The defendants did not file suit within the

applicable Statue of Limitation period against

Magee-Womens Hospital or its employee-surgeon

on a cause of action based on the negligent attempt

to remove the foreskin. If the defendants had

timely filed a complaint alleging the negligence

described in paragraph 15, followed with the

required trial preparation, the Plaintiffs would have

prevailed in a trial by jury. The Plaintiffs would

have recovered damages on behalf of the Estate of

Nazir Muhammad for: loss of wages and earnings

for the natural life expectancy of the decedent (an

A68

amount substantially in excess of $26,500), for

monies expended for medical bills, funeral

expenses, headstone and administration expenses;

for pain and suffering and inconvenience on behalf

of the decedent from the date of the defendants acts

until his death, substantially in excess of $26,500,

by jury trial or by settlement. Additionally, dam-

ages would have been recovered by Plaintiffs as

parents for the loss of decedent's society, compan-

ionship, services, aid and comfort, assistance, wages

and their pecuniary losses, either by jury trial or

settlement, substantially, in excess of $26,500.

Such damages were collectable from Magee-

Womens Hospital or its employee-surgeon by rea-

son of insurance and the Catastrophe Loss Fund.

15. The Magee-Womens Hospital by its

employee-surgeon deviated from the required stan-

dard of care due to Nazir Muhammad because he

did not possess the requisite knowledge and skill to

do the foreskin operation and he did not perform it

as required and remove the foreskin to be removed

A69

in one operation and he did not act as a reasonable

man under the circumstances with due regard for

the care owed to Nazir Muhammad. The Plaintiffs

would have prevailed in a trial by jury against

Magee-Womens Hospital and the employee-sur-

geon. The Plaintiffs would have recovered dam-

ages against Magee-Womens Hospital and the

employee-surgeon on behalf of the Estate of Nazir

Muhammad for: loss of wages and earnings for the

natural life expectancy of the decedent (an amount

substantially in excess of $26,500), for monies

expended for medical bills, funeral expenses, head-

stone and administration expenses; for pain and suf-

fering and inconvenience on behalf of the decedent

from the date of the defendants acts until his death,

substantially in excess of $26,500, by jury trial or—

by settlement. Additionally, damages would have

been recovered by Plaintiffs as parents for the loss

of decedent's society, companionship, services, aid

and comfort, assistance, wages and their pecuniary

losses, either by jury trial or settlement, substan-

A70

5 RAL Re A dS El, Saati Digi her

tially, in excess of $26,500. Such damages were

collectable from Magee-Womens Hospital or its

employee-surgeon by reason of insurance and the

Catastrophe Loss Fund.

16. The succinylcholine as consumed by Nazir

Muhammad was in the same condition as manufac-

tured and sold. It was used for the purpose for

which it was intend as a pre-anesthesia agent. It

contained a defect. The chemical makeup was such

that it would react, with children's bodies and lungs

to create a life threatening and, in this instance, a

life destroying condition of pulmonary edema. No

warning of this dangerous deficit was affixed to the

product by way of labelling or by package insert.

The Plaintiffs would have prevailed in a trial by

jury against the manufacturer-seller and the

Children's Hospital, if suit would have been filed

within the time permitted by the applicable Statute

of Limitations. The Plaintiffs would have recov-

ered damages on behalf of the Estate of Nazir

Muhammad against the manufacturer-seller and

A7l

Children's Hospital for: loss of wages and earnings

for the natural life expectancy of the decedent (an

amount substantially in excess of $26,500), for

monies expended for medical bills, funeral

expenses, headstone and administration expenses;

for pain and suffering and inconvenience on behalf

of the decedent from the date of the defendants acts

until his death, substantially in excess of $26,500,

by jury trial or by settlement. Additionally, dam-

ages would have been recovered by Plaintiffs as

parents for the loss of decedent's society, compan-

ionship, services, aid and comfort, assistance, wages

and their pecuniary losses, either by jury trial or

settlement, substantially, in excess of $26,500.

Such damages were collectable from the manufac-

turer-seller of succinylcholine and Children's

Hospital by reason of insurance or attachable assets.

17. The Plaintiffs were unaware of the harm

done to them by the defendants until the month of

May 1982 and could not have and did not discover

the harm by reason of the deception of the defen-

A72

lace de

dants in not disclosing their negligence and that in

giving an altogether-false opinion as to the worth of

the suit.

COUNT I

FRAUDULENT MISREPRESENTATION

(DECEIT)

18. Paragraphs 1 through 17 are incorporated

by reference, hereto, as though they were set forth,

herein, at length.

19. The defendants have acted with evil motive,

with intent to deceive and mislead Plaintiffs, to

Plaintiffs’ harm.

20. Defendants made fraudulent misrepresenta-

tions at the outset, throughout and at the termina-

tion of the attorney-client relationship by making

false and misleading misrepresentations of fact,

opinion and intention. The details of which are

described in Paragraphs 21 through 26.

21. The Defendants misrepresented their per-

formance as the Plaintiffs’ lawyers as though they

did all things required of them by the relationship

A73

of attorney and client, when in fact, they had been

careless in their work as it is set forth in detail in

Count V, Negligence; and, the defendants urged a

settlement on the Plaintiffs with evil motive, falsely

telling them that a jury would not award more than

the $26,500 offered because they were poor and

black, when, in fact and in opinion, they had no

rational basis for saying this. Their purpose in

making the utterance was to have the Plaintiffs

accept the settlement; planning, thereby, that their

negligence and the harm done, therefrom, would go

unnoticed or that they could secure a settlement that

would foreclose the Plaintiffs from redress against

them.

22. Defendants made additional misrepresenta-

tions of fact which were altogether untrue, false,

misleading and fraudulent. They asserted that they

were pursuing a claim based on lack of informed

consent because of failure to advise, “the parents of

the decedent of the dangers and/or risks involved in

a repeat circumcision or in the propriety of admin-

A74

istering general anesthesia, to perform a circumci-

sion, and failed to obtain the informed consent of

the decedent's parents or guardians, to such a pro-

cedure”. In fact, the defendants did not procure

expert testimony to establish this proposition, nor

file such expert report to permit such evidence to

be introduced at trial. The defendants also asserted

contrary to fact that they had brought action on

behalf of the Plaintiffs on all applicable theories of

action, against all possible parties.

23. Defendants made the following misrepre-

sentations of opinion which were altogether,

untrue, false, misleading and fraudulent:

a. that the Plaintiffs should accept a set-

tlement of $26,500 because in the opinion of the

defendants a jury would award no greater amount

because they were poor and black.

b. that the defendants had brought suit

under all theories of liability against all parties who

were potentially responsible for the death of Nazir

Muhammad.

A75

24. The defendants had no basis for offering an

opinion that they had sued all the potentially

responsible parties under all applicable theories of

liability, but continued to offer such opinion when

it was clear that they had not. They then ventured

the opinion about the Plaintiffs being poor and

black limiting the possible recovery to $26,500.

They offered this opinion, not because they

believed it or had any basis in fact upon which to

base such belief, but because they sought to mislead

the Plaintiffs to enter into a settlement to their

harm.

25. The defendants made the misrepresentations

of intention that they intended to prosecute fully

any and all claims arising out of the death of Nazir

Muhammad through a jury trial, if necessary. This

was altogether untrue, false; misleading and fraudu-

lent; the intention of the defendants was to only

pursue the claims of the Plaintiffs, only to the

extent that they could settle such claims without a

jury trial.

A76

26. The defendants entered into the representa-

tion agreement having no intention to try the case

before a jury, but to settle -for what settlement

might be obtained with the least effort and most

profit for them. Subsequently, they reinforced

their intent not to prepare the case for trial and to

cause the Plaintiffs to settle for $26,500; the defen-

dants had the intent to cause the Plaintiffs to settle

for $26,500 to avoid their negligence from being

discovered and to prevent the Plaintiffs from

maintaining a law suit against them; the defendants

did not have the intent to properly prepare the

investigation of the cause of death and to obtain

complete expert advice, but intended to handle the

case in a time-cost effective manner, providing for

the most possible money being earned by them in

relation to the work performed; with inadequate

preparation and the saving on expenditures for

expert opinion and investigation to maximize the

monetary return to them, without regard to obtain-

ing adequate damages.

27. The Plaintiffs were deceived by the defen-

dants and entered into a representation agreement

with the defendants under the belief that the defen-

dants would fairly represent them and that the

defendants intended to prepare for a jury trial and

be ready to try the case; and that the defendants

intended to settle the case without trial was not

communicated to them at the outset.

28. The Plaintiffs justifiably relied on the

detendants, who were their lawyers, to their harm.

29. The Plaintiffs in their representative capac-

ity have suffered damage as a direct and proximate

result of the fraudulent concealment and misrepre-

sentations of the defendants. But for the acts of the

defendants, damages would have been recovered by

Plaintiffs as parents for the loss of decedent's soci-

ety, companionship, services, aid and comfort,

assistance, wages and their pecuniary losses, either

by jury trial or settlement, substantially in excess of

$26,500; they would have prevailed in a jury trial

that included the omitted defendants, identified

A78

ar 9 ant Da ul

herein, with the inclusion of all the theories of

recovery; they would have recovered substantially

~ in excess of $26,500 by verdict or by settlement in

their representative capacity and substantially in

excess of $26,500 by verdict or by settlement as

parents.

30. The Plaintiffs have been put to grievous

trouble, vexation and annoyance which have been

caused by Defendants’ deceit.

31. The Plaintiffs are entitled to compensatory

damages, including attorneys fees and pre-judgment

interest.

WHEREFORE, Plaintiffs demand joint, several

and joint and several judgment against the defen-

dants for compensatory damages in an amount in

excess of $20,000, together with delay damages.

A79

COUNT II

FRAUDULENT CONCEALMENT

(DECEIT)

32. Paragraphs 1 through 17 are incorporated

by reference, hereto, as though they were set forth,

herein, at length.

33. Defendants, concealed from the Plaintiffs

material information essential to making an

informed decision as to whether the Plaintiffs

should give consent to the proffered settlement of

$26,500. They concealed this material information

from the Plaintiffs by not informing them as was

required of them as the Plaintiffs’ attorneys and

with the certain knowledge that Plaintiffs could not

be expected to learn of the concealment.

34. Acting with evil motive, with intent to

deceive and mislead, the defendants concealed the

material information contained in Count V,

Negligence and set forth in Paragraphs 21, 22, 23,

24, 25 and 26.

A8&0

35. The defendants did not inform the Plaintiffs

of the consequences of the ostensible settlement

assent by the Plaintiffs until after assent was given.

They did not inform the Plaintiffs that the commu-

nication of an agreement of settlement to the Court

by the defendants, as lawyers for the Plaintiffs,

could bind the Plaintiffs to that settlement, with

respect to proceeding on the claim filed stemming

from the death of Nazir Muhammad.

36. Incorporated, herein, by reference thereto

as though set forth in their entirety are paragraphs

27, 28, 29, 30, and 31.

WHEREFORE, Plaintiffs demand joint, several

and joint and several judgment against the defen-

dants for compensatory damages in an amount in

excess of $20,000, together with delay damages.

A81

COUNT ITI

NONDISCLOSURE

37. Paragraphs 1 through 35 are incorporated,

herein, by reference thereto as though they were

fully set forth in their entirety.

WHEREFORE, Plaintiffs demand joint, several

and joint and several judgment against the defen-

dants for pecuniary loss in an amount in excess of

$20,000 together with delay damages.

COUNT IV

BREACH OFCONTRACT

38. Paragraphs 1 through 17 are incorporated

by reference, thereto, as though they were set

forth, herein, at length.

39. The agreement between the Plaintiffs and

defendants was in part written and in part oral. A

true and correct copy of the written portion, dated

March 17, 1978, is attached hereto and designated,

Exhibit "A". The oral portion was entered into at a

later date, in the month of October, 1978.

A82

40. The terms of the agreement between the

Plaintiffs and defendants are that:

a. The defendants would perform in their

representation of the Plaintiffs as attorneys skilled

and experienced in medical malpractice litigation;

b. The defendant law firm and individual

law firm member, defendant, would perform in

their representation as attorneys who were special-

ists in medical malpractice litigation;

c. The defendants would pursue the

Plaintiffs’ claim with due diligence;

d. The defendants would conduct a thor-

ough and diligent search of the underlying facts of

the claim, which included a search of all hospital

records, a medical journal and medical text search

of surgical procedure, anesthesia procedure, and

medication given;

e. The defendants would seek expert

information from scientists and medical doctors

knowledgeable in the field of circumcision surgery,

pediatric anesthesiology and pharmacology;

A83

f. The defendants would inquire of the

putative defendants before suit entered for an

explanation of the cause of death of Nazir

Muhammad.

g. The defendants would inquire of the

defendants in any suit filed by court permitted dis-

covery, timely made, of the cause of injury;

h. The defendants would give advice and

opinion, only after a thorough research of the law

and facts and an intelligent decision reached there-

from;

i. The defendants would investigate all

possible claims and causes of action on behalf of the

Plaintiffs and render opinions after reaching an

intelligent decision as to what causes of actions

existed and with respect to what causes and course

of action should be pursued.

41. The defendants breached all of the

promises, terms and conditions set forth in para-

graph 40, above to the pecuniary loss of the

A84

Plaintiffs, including attorneys fees and pre-judg-

ment interest.

42. As a result of the breach of agreement by

the defendants, the Plaintiffs suffered pecuniary

loss in an amount in excess of $20,000 plus the

interest thereon from April 23, 1982.

43. Paragraph 29 is incorporated, herein, by

reference thereto as though set forth at length.

WHEREFORE, Plaintiffs demand joint, several

and joint and several judgment against the defen-

dants for pecuniary loss in an amount in excess of

$20,000 together with interest thereon from April

23, 1982.

COUNT V

NEGLIGENCE - BUT FOR STANDARD

44. Paragraphs 1 through 17 are incorporated

herein by reference, thereto, as though they were

set forth at length.

45. The Plaintiffs assert that had the defendants

timely brought suit against the parties omitted and

A&85

upon the causes of action omitted, as described

above in paragraphs 14, 15 and 16, a verdict or

settlement in their favor in excess of $26,500 would

have been recovered.

46. Further, the defendants did not pursue the

cause of action filed based on lack of informed con-

sent. The defendants asserted it in paragraph 17 of

the complaint they prepared and filed by saying:

“At the time of the admission none of

the defendants advised the parents of

the decedent, of the dangers and/or

risks involved in a repeat circumcision

or in the administration of general

anesthesia, or in the propriety of

administering general anesthesia, to

perform a circumcision, and failed to

obtain the informed consent of the

decedent's parents or guardians, to

such a procedure."

They were negligent because they did not file an

expert report in compliance with Allegheny County

Rules of Civil Procedure, Rule 212, permitting tes-

timony explaining the risks between local and gen-

eral anesthesia and the applicability of each.

A86

47. The defendants were negligent in that they

did not exercise the requisite skill and knowledge

necessary to represent the Plaintiffs in their claim

for the death of the infant, Nazir Muhammad.

They did not act as reasonable men under the cir-

cumstances.

48. The defendants committed further acts of

negligence in that:

a.. they failed to make any investigation of

medications administered to Nazir Muhammad at

The Children's Hospital of Pittsburgh associated

with the anesthesia procedure; specifically, suc-

cinylcholine;

b. they failed to take timely depositions,

which, when taken, revealed the harm and death

caused by the administration of succinylcholine;

c. they failed to attempt to discover what

was discoverable about succinylcholine: that it was

sold containing a defect that could cause death in an

infant and that defect was not warned of in the

package insert nor who was the manufacturer and

A87

who were the sellers, within the time permitted by

the applicable Statute of Limitations;

d. they failed to bring suit or give advice

pertinent to bringing suit against Magee-Womens

Hospital and its employee-surgeon for the negli-

gence in performing the original incomplete cir-

cumcision, within the time permitted by the appli-

cable Statute of Limitations;

e. they failed to bring suit or give advice

pertinent to the bringing of suit against the sellers

of the succinylcholine, including The Children's

Hospital of Pittsburgh and the manufacturer-seller,

with the time permitted by the applicable Statute of

Limitations;

49. Despite the holding forth of such skill the

defendants did not possess or exercise the knowl-

edge and skill of a specialist in medical malpractice

cases.

50. The defendants did not possess the ordinary

skill and knowledge required of them to represent

the Plaintiffs in a medical malpractice action.

os rath rr etl

51. The defendants did not possess the required

skill and knowledge to comprehend the patient

(hospital) charts, of Nazir Muhammad; to uncover

and understand adverse reactions of medications

and anesthesia in children; to select the correct

skilled help in analyzing the medical facts; to obtain

and cor \prehend the manufacturer's package insert

of succinylcholine; to inquire and understand the

significance of the failed circumcision.

52. The negligence of the defendants was the

legal cause of the Plaintiffs suffering pecuniary

loss.

53. The Plaintiffs assert that the defendants did

not bring suit against the parties omitted and upon

the causes of action omitted, as described above,

and did not pursue with due diligence the cause of

action for lack of informed consent and, therefore,

are proximately liable to the Plaintiffs for the

pecuniary loss suffered.

54. But for the negligence of the defendants the

Plaintiffs would have been successful at a jury tnal

A8&9

as described in paragraphs 14, 15, 16 and 46 and

would have recovered at jury trial a sum substan-

tially in excess of $26,500, by jury verdict in their

representative capacity and a sum substantially in

excess of $26,500 by verdict as parents and would

have collected the same.

WHEREFORE, Plaintiffs demand joint, several

and joint and several judgment against the defen-

dants for compensatory damages in an amount in

excess of 520,000, together with delay damages.

COUNT VI

NEGLIGENCE - SUBSTANTIATED

FACTS STANDARD

55. Paragraphs 44 through 53 are incorporated,

herein, by reference, thereto, as though they were

set forth at length.

56. The defendants increased, in a substantial,

practical way the risk that the Plaintiffs would suf-

fer damages by not receiving the compensation to

which they were entitled to receive, either by set-

tlement or verdict, if suit had been filed against the

omitted parties and upon the causes of action omit-

ted.

WHEREFORE, Plaintiffs demand joint, several

and joint and several judgment against the defen-

dants for compensatory damages in an amount in

excess of $20,000, together with delay damages.

_ COUNT VII

OUTRAGEOUS CONDUCT CAUSING

- SEVERE EMOTIONAL DISTRESS

57. Paragraphs 1 through 42 are incorporated,

nerein, by reference, thereto, as though they were

set forth at length.

58. The defendants by extreme and outrageous

conduct, with evil motive, intentionally and/or

recklessly caused the Plaintiffs to suffer severe

emotional distress by:

a. counseling the Plaintiffs falsely with

evil motive that the sum of $26,500 is all the money

that a jury would award for the death of their son

AQ]

Nazir, because they are poor and black and that

they should; therefore, settle for this amount;

b. urging the Plaintiffs to settle so as to

cover-up their malpractice;

c. not informing the Plaintiffs that the

assent they gave their lawyers to settle when com-

municated to the Court would forever bind them;

d. not disclosing to the Court during the

hearing to enforce the settlement that the Plaintiffs’

assent to settle was urged upon the Plaintiffs by

Howard Messer and the law firm of Strassburger,

McKenna, Messer, Shilobod and Gutnik;

e. the giving of altogether false opinions

as to the merit and value of the case;

f. not disclosing to the Plaintiffs or the

Court before or during the hearing to enforce the

settlement, that the defendants Howard Messer and

the law firm of Strassburger, McKenna, Messer,

Shilobod and Gutnik, had failed to file suit against

Magee-Womens Hospital and its employee-surgeon

for the negligently performed circumcision and that

A92

aa _— —

this would substantially increase the value of

Plaintiffs case;

g. not disclosing to the Plaintiffs or to the

Court that the defendants Howard Messer and the

law firm of Strasssburger, McKenna, Messer,

Shilobod and Gutnik, had failed to timely investi-

gate the cause of Nazir Muhammad's death and had

they done so by taking a timely deposition of Helen

Westman they would have discovered that the suc-

cinylcholine was responsible for the death of their

son and that this would have led to a products lia-

bility action against Children's Hospital and the

manufacturer-seller of succinylcholine and that this

would substantially increase the value of Plaintiffs’

case;

h. and in failing to inform the Court

during the hearing to enforce the settlement that the

defendants, Howard Messer and the law firm of

Strassburger, McKenna, Messer, Shilobod and

Gutnik, were in violation of Allegheny County

Rules of Civil Procedure, Rule 212, which required

A93

an expert opinion to be obtained and filed with

regard to that portion of the complaint which states

that the informed consent of the Muhammads was

never obtained by the Children's Hospital, Dr.

Price or Dr. Westman for the use of general anes-

thesia for this minor surgical procedure.

59. The Plaintiffs suffered emotional shock as a

result of the defendants intentional outrageous con-

duct as described.

60. The conduct of the defendants was so

extreme and outrageous that they are liable to the

Plaintiffs for the emotional distress because of their

conduct alone, whether or not the Plaintiffs suf-

fered actual emotional shock.

61. The Plaintiffs are entitled to compensatory

damages.

62. Exemplary damages must be awarded

against the defendants to discourage their willful

and wanton misconduct in violation of their fidu-

Clary obligation.

A94

WHEREFORE, Plaintiffs demand joint, several

and joint and several judgment against the defen-

dants for compensatory damages, in an amount in

excess of $20,000, together with delay damages.

COUNT VIII

BREACH OF FIDUCIARY OBLIGATION

63. Paragraphs 1 through 17 and 57 through 62

are incorporated by reference, thereto, as though

they were set forth, herein, at length.

64. The defendants, in an attorney and client

relationship with the Plaintiffs were under a fidu-

ciary obligation of the highest order. They violated

this trust when they undertook representation of the

Plaintiffs with the undisclosed intent of not to pros-

ecute their claim to jury verdict, when they did not

disclose their inept and negligent representation to

the Plaintiffs, when they gave from evil motive the

opinion that the Plaintiffs were limited in their

claim to $26,500 because they were poor and black,

and when at the hearing to enforce the settlement

A95

they did not disclose to the court how they obtained

an utterance of consent from the wife-Plaintiff.

65. The Plaintiffs are entitled to compensatory

damages equal to the amount they would have.

recovered, either by jury trial or settlement, and

counsel fees and pre-judgment interest.

66. Exemplary damages must be awarded

against the defendants to discourage their willful

and wanton misconduct in violation of their fidu-

ciary obligation.

WHEREFORE, Plaintiffs demand joint, several

and joint and several judgment against the defen-

dants for compensatory and punitive damages in an

amount in excess of $20,000 plus delay damages.

BEHREND, MORAN,

ERNSBERGER &

TAMILIA, Attorneys for

Plaintiffs,

By: /s/ Kenneth W. Behrend

JURY TRIAL DEMANDED

A96

JAMES THOMAS, JR.

Attorney at Law

Suite 530 Grant Building

Pittsburgh, Pennsylvania 15219

(412) 562-0223

POWER OF ATTORNEY

AND

CONTINGENT FEE AGREEMENT

KNOW ALL MEN BY THESE PRESENTS: That,

I (we), the undersigned, do authorize and appoint,

JAMES THOMAS, JR., Attorney at Law, to repre-

sent me (us) in all matters pertaining to my (our)

claim and/or suit for damages against Children's

Hospital of Pittsburgh, et al (or the appro-

priate parties), arising from an incident or contract

on 12/19, 1977, with full power to act for me (us)

and in my (our) behalf or to effect an amicable set-

tlement if possible.

IT IS FURTHER AGREED that I (we) direct

‘that said Attorney shall receive for professional

EXHIBIT "A"

A97

services, forth (40%) percent of any gross recov-

ery, whether by settlement or verdict, and further,

that said Attorney, in addition thereto, shall be

reimbursed for all costs actually incurred in the

furtherance of this legal cause. This agreement

does not include appeals.

IN THE EVENT there is no recovery, said

Attorney shall not be entitled to any fee for services

rendered, costs incurred excepted.

IT IS DISTINCTLY UNDERSTOOD that said

Attomey are not authorized to make any settlement

or compromise without my (our) consent.

IN WITNESS WHEREOF, I (we) have set my

(our) hand(s) and seal(s) this 17th day of March,

1978.

WITNESS:

(SEAL)

EXHIBIT "A"

A98

AFFIDAVIT

COMMONWEALTH OF PENNSYLVANIA :

-. .

COUNTY OF ALLEGHENY

Personally appeared before me, the undersigned

authority, a notary public in and for said common-

wealth and county, Naimah Pamela Muhammad,

who being duly sworn according to law, deposes

and states that the allegations of fact set forth in the

foregoing Second Amended Complaint are true and

correct to the best of her knowledge, information

and belief.

/s|/ PAMELA MUHAMMAD

Sworn and subscribed

before me this 19th day

of May, 1986.

S NTON

Commission expires

A99

IN THE COURT OF COMMON PLEAS

OF ALLEGHENY COUNTY, PENNSYLVANIA

PAMELA MUHAMMAD,

administratrix of the Estate

of NAZIR MUHAMMAD,

and ABDULLAH

MUHAMMAD,

Plaintiffs,

VS.

STRASSBURGER,

MCKENNA, MESSER,

SHILOBOD AND

GUTNIK, a law Partnership,

HOWARD MESSER, and

JAMES THOMAS, JR.,

Defendants.

JURY TRIAL DEMANDED

CIVIL DIVISION

G.D. 84-6520

Code: 011

BRIEF IN OPPOSITION

TO DEFENDANTS'

PRELIMINARY

OBJECTIONS

Filed on Behalf of:

Pamela Muhammad,

Adminsitratrix of the

Estate of Nazir Muhammad

and Abdullah Muhammad.

Counsel of Record for

This Party:

Kenneth W. Behrend, Esq.

Pa. I.D. No. 06406

BEHREND, MORAN,

ERNSBERGER &

TAMILIA

FIRM NO. 018

1320 Grant Building

Pittsburgh, PA 15219

(412) 391-2515

: ACCEPTANCE OF SERVICE

I CERTIFY THAT A TRUE AND CORRECT

COPY OF THE WITHIN PLEADING WAS

HAND DELIVERED TO ADVERSE COUNSEL

THIS 16TH DAY OF JUNE, 1986.

/S/ KENNETH W. BEHREND

ATTORNEY FOR PLAINTIFFS

A100

BRIEF IN OPPOSITION OF DEFENDANTS'

PRELIMINARY OBJE N

Introduction

This is a legal malpractice action which arises

from the defendants’ legal representation of the

plaintiff, Pamela Muhammad and her husband

Abdullah Muhammad, in a medical negligence for

claims arising from the death of their infant son

Nazir. Nazir Muhammad died on December 19,

1977, as the result of anesthesia given during an

operation to correct a persistent prepuce. He was

approximately four weeks of age.

On November 18, 1978, the defendants in this

action filed a Notice of Complaint with the medical

arbitration board against Childrens' Hospital and

Dr. Helen Westman (the anesthesiologist) and Dr.

Stuart E. Price (the surgeon). In April, 1979, an

action was filed against these defendants in the

Court of Common Pleas of Allegheny County.

On April 22, 1981, some 3 1/2 years after the

death of Nazir Muhammad, the defendants' lawyer

in the instant action, took the deposition of the

A101

anesthesiologist Dr. Helen Westman. At that time it

was learned from Dr. Westman that an adverse

drug reaction to Succinylcholine was the cause of

the death of Nazir Muhammad.

- Defendant, Howard Messer, and the law firm of

Strassburger, McKenna, Messer, Shilobod and

Gutnick made no further inquiry into the adverse

drug reaction to Succinylcholine, and its role in the

death of Nazir Muhammad. Nor did they inform

Mrs. Muhammad of Dr. Westman’s opinions as to

the cause of death.

In April, 1982, defendant Messer and his law

firm induced Mrs. Muhammad to settle their case

against Childrens’ Hospital and Drs. Westman and

Price for $26,500.00. The defendants intentionally

deceived the plaintiff as to the value of the case.

They were told that they could expect to receive no

more that $26,500 for the death of their son

because they are poor and black and because of that

a jury would award them no more. The defendants

purpose in deceiving the plaintiff was to hide from

the plaintiffs their negligence and ineptness and to

prevent any cause of action against themselves.

Mrs. Muhammad told the defendants in the set-

tlement negotiations to "do what they felt best,"

believing that the defendants had adequately inves-

tigated all potential theories of liability and putative

defendants. The plaintiffs subsequently became dis-

satisfied with the amount of settlement and

attempted to have the settlement set aside. A hear-

ing on the issue of whether the settlement should be

enforced was held before Judge Wekselman where

the wife plaintiff went unrepresented by counsel. |

The settlement was enforced by order of Judge

Wekselman on April 23, 1982.

Thereafter, the Plaintiffs sought the services of

present counsel to appeal Judge Wekselman's order.

On November 23, 1984, the Superior Court of

Pennsylvania affirmed that Court Order.

The Complaint filed against the defendant

Messer and his law firm outlines the defendants

deviations from the required standard of care that

was owed to the plaintiffs. In particular, the com-

A103

plaint states that the plaintiffs were fraudulently

induced by the defendants to settle their claims

against Childrens' Hospital and Drs. Westman and

Price by telling the Muhammads to accept the

$26,500.00 as a settlement because the jury would

award no more than that because they were poor

and black. This was an altogether false opinion and

was done to prevent the plaintiffs from discovering

that the defendants had been negligent in their pros-

ecution of this case. This-being a clear violation of

a lawyers fiduciary duty to his client.

The Complaint further states that the defendants

failed to file actions against Magee-Womens

Hospital and its employee surgeon for failing to

perform a proper circumcision in the first instance.

The defendant lawyers were negligent in failing to

file these actions and in failing to advise the plain-

tiffs of the reasons for not doing so.

The complaint further states that the defendants

failed to perform timely discovery in that they took

the deposition of Dr. Westman on April 22, 1981.

This was some 2 1/2 years after filing the notice of

A104

complaint against the hospital and doctors and some

3 1/2 years after the death of Nazir Muhammad.

Had they taken a timely deposition of Dr. Westman,

they would have discovered that it was Dr.

Westman's opinion that the cause of the infant

Muhammad's death was an adverse drug reaction to

Succinylcholine causing pulmonary edema.

Pulmonary edema was not an adverse reaction that

was warned of by the manufacturer. If the defen-

dants had taken a timely deposition of Dr. Westman

it would have lead to a products liability action

against the manufacturer of the Succinylcholine

prior to the passing of the statute limitations.

The complaint further states that the defendants,

although they plead the lack of informed consent

for the use of general anesthesia as opposed to the

use of local anesthesia for a circumstances, failed

to, in accordance with local rule of Civil Procedure

212, engage an expert to proceed on this cause of

action.

: Defendant in the instant action have maintained

in their Brief In Support Of Preliminary

A105

Objections, that theories of issue preclusion, pre-

vent the plaintiffs from bringing the present action

because the Courts have approved the settlement as

beneficial and advantageous to the plaintiff.

THERE ARE TWO CONSTELLATIONS OF

WRONG: ONE GROUP CENTERS ABOUT THE

SUIT THAT WAS FILED AND THE OTHER

GROUP FOCUSES ON THE SUITS NOT FILED

Assuming, arguendo, that the court approved

settlement terminates all claims that stem from the

fraud in obtaining the consent of the plaintiffs, such

settlement does not bar the claims for not filing suit

against the Magee-Womens Hospital, the employee-

physician, and the manufacture of succinylcholine.

The latter three putative wrongdoers committed

such separate acts, that they could not take advan-

tage of any settlement or release entered into. A

jury would not have found the three asserted

wrongdoers against whom suit was actually filed to

be liable. A jury would not have found, that

Children's Hospital of Pittsburgh, Stuart E. Price,

and Helen Westman were negligent. That is pre-

A106

cisely why the Defendants persuaded the Plaintiffs

to settle. An action for negligence was all the

defendants preserved for trial.

It is Hornbook Law that for a tortfeasor to be

discharged by the settlement or release with

another, the released or discharged person or entity

must be a tortfeasor, who is a joint tortfeasor

together with the tortfeasor seeking to take advan-

tage of the release settlement.

Simply stated, the plaintiffs assert "but for" the

negligence of the defendants a case against the par-

ties actually would have resulted in a verdict sub-

stantially more than the settlement. The plaintiffs

also assert that the settlement is of no moment with

respect to the claims negligently not filed by the

defendants because the parties with whom settle-

ment was made are not at fault under under the

theories the defendants relied upon.

Statements contained in Defendants’ Brief in

Support of Preliminary Objections in the factual

background portion relating to the inadequacy of

the settlement are not complete. Plaintiffs do

A107

complain of the inadequacy of the settlement but

just as strongly complain of the defendants’ failure

ree

to sue the Magee-Womens Hospital, employee-sur-

geon, and manufacturer-seller of Succinylcholine

who did not participate in the settlement.

Res Judicata/Collateral Estoppel

Certain underlying principals govern the appli-

cation of Res Judicata:

1. Identity of the subject matter is

essential-to the application of Res

Judicata.

2. Identity of causes of action is an

element in the application of Res

Judicata.

3. When causes of action are dis-

tinct the doctrine of Res Judicata does

not apply. Pa. Legal Encyclopedia,

Sections 252, 253, 254.

The law in Pennsylvania on the application of

collateral estoppel is set forth in Pilgrim Food

Products Co, v, Filler Products, Inc., 393 Pa. 418,

A108

143 A.2d 47 (1958) wherein the Supreme Court

stated:

"If the parties to an action have

had an opportunity to appear and be

heard in a prior proceeding involving

the same subject matter, all issues of

fact which were actually adjudicated in

the former action and essential to the

judgment therein are concluded as

between the parties even though the

causes of action in the two proceedings

are not identical.’ Larsen v. Larsen,

392 Pa. 609, 612, 141 A.2d 353, 355

(1958); Thal v. Krawitz, 365 Pa. 110,

112, 73 A.2d 376 (1950); In re

Wallace's Estate, 316 Pa. 148, 153,

174 A. 397 (1934); Restatement,

Judgments 68 (1942)."

Id. 393 Pa. 418 at 421-22, 143 A.2d at 49.

Defendants in their Brief in Support of

Preliminary Objections assert that the doctrine of

A109

issue preclusion prevents what they characterize as

the relitigation of the adequacy of the $26,500.00

settlement. The defendants have attached to their

brief a copy of Judge Wekselman's Order enforcing

settlement and the Superior Court opinion affirm-

ing Judge Wekselman's Order. They have with

bold conceit asked this Court to apply principals of

issue preclusion to the instant case and thereby pre-

vent plaintiffs from asserting legal malpractice of

the defendants as a cause of action.

Judge Wekselman's Order enforcing settlement

and the Superior Court Order affirming are limited

to the issues of whether or not Mrs. Muhammad

consented to the settlement. Not whether Mr.

Messer and his law firm are liable to the plaintiffs

for their negligence and fraud in their representa-

tion of the plaintiffs claims.

The Pennsylvania Commonwealth Court in

Westi lectric _v. Boar n

Appeals, 456 A.2d 694, 72 Pa. 180 Cmwlth. 400

(1983) held that “application of this doctrine (Res

Judicata) requires an identity in the claim sued

A110

upon, an identity of the cause of action and an

identity of the quality or capacity of the parties

suing or sued” Id page 698.

The Court in Westinghouse quoting from Sharp

vy. Department of Transportation, 67 Pa. Cmwlth.

Ct. 522, 447 A2d 1057 (1982) that "The essential

inquiries whether the ultimate and controlling

issues have been decided in a prior preceding in

which the present parties have an opportunity to

appeal and consent their rights."

Plaintiffs have not yet litigated the malpractice

and fraud of defendant Messer and his law firm.

The hearing before Judge Wekselman and the

appeal to the Superior Court cannot be used by way

of issue preclusion either under principles or res

judicata or collateral estoppel to prevent them from

bringing this cause of action. In short, plaintiffs

have had no opportunity to present their cause of

action for professional negligence and fraud against

the defendants and have it decided by a jury. The

Court should deny defendants’ request for demur-

A111

rer to Counts I, II, II], IV, V, VI and VIII of

Plaintiffs’ Complaint.

Professional Negligence

It is well established that there are three essential

elements which must be established to bring a cause

of action for professional negligence. "These are:

-a. the employment of the attomey or other basis

for duty;

b. the failure of the attorney to exercise ordi-

nary skill and knowledge; and

c. that such negligence was the proximate cause

of damage to the plaintiff." Schenkel v. Monheit,

405 A.2d 493 (Pa. Super. 1979).

Defendants in their Brief In Support Of

Preliminary Objections state that the defendants

failure to name, "the drug manufacturer, the sur-

geon, the previous hospital or unnamed others" did

not add to plaintiffs’ harm. Defendants cite several

cases in support of this contention. In particular,

they rely on Gans v. Mundy, 762 F2d 338, U:S.

Ai12

Cert. 106 S.Ct. 537 (1985) and Schenkel _v.

Monheit, Supra.

The Gans case was a legal malpractice case

brought against the plaintiff's second attorney. The

complaint alleged that the attorney failed to include

a defendant in the prior action and that the statute

of limitations had passed as to this defendant.

Plaintiff's complaint alleged a diminished and inad-

equate verdict as a result. The Gans Court held that

there could be no cause of action against the attor-

ney for failing to add the additional defendant

where the statute of limitations had passed on an

potential cause of action prior to the attorney

defendant being retained as counsel. This is not the

issue in the instant action.

The Schenkel Court was also faced with a legal

malpractice case involving the failure of an attor-

ney to join a putative defendant. In that case, the

attorney failed to join a corporate defendant,

allegedly liable on the basis of respondeat superior

in a prior personal injury action involving an auto

accident. The plaintiff in that case alleged that the

A113

attorneys failure to sue the driver's corporate

employer, in addition to the driver, caused an inad-

equate award of damages. The Schenkel Court held

that "the actual tortfeasor, Salem, was made the

defendant; the corporate employer could only

arguably be liable under agency principles, not as

n_in nden rt feasor." (emphasis added)

Schenkel v. Monheit, 405 A.2d 494.

What Mr. Messer and his law firm fail to point

out in their Brief is that neither of these cases stand

for the proposition, that an attorney cannot be held |

accountable to his client if he fails to include as a

defendant in an action entrusted to him potential

defendants, who can be held liable under separate

causes of action, and as independent tortfeasors

liable for successive torts.

It is plaintiffs' position that defendant Messer

and his law firm's failure to sue the hospital,

employee surgeon and the drug manufacturers on

distinct causes of action and as independent tort fea-

sors is malpractice.

A114

Actual Loss

In Count V the plaintiffs plead negligence based

on the "but for" standard. Specific acts of negli-

gence are set forth. It is asserted that “but for" the

negligence of the defendants, suit would have been

filed against, Magee-Womens Hospital, the

employee-physician, and the manufacturer-seller of

Succinylcholine. "But for" the negligence of the

defendants recovery by jury verdict would be in

favor of the plaintiffs. Also, “but for” the negli-

gence and fraud of the defendants the plaintiffs

would have recovered by jury verdict against the

three parties actually sued.

In Gans _v. Gray, 612 F.Supp. 608, District

Judge Giles; held that the burden of demonstrating

injury, i.e. actual harm, is the causation require-

ment in a legal malpractice case. “To prove actual

injury, plaintiff must demonstrate that he would

have prevailed in the underlying action in the

absence of defendant's alleged negligence." Gans,

612 F.Supp. at 617. It is defendant's claim that the

plaintiffs’ damages are too speculative; however, a

A115

measure of damages in a legal malpractice claim

would be the amount which the plaintiffs would

have received from a jury or through settlement.

William v. Bashman, 457 F.Supp 322 (1978).

The fact that plaintiffs' damages are unliqui-

dated, makes them more difficult to determine, but

does not render them speculative. The courts have

required expert testimony on this issue as well as

the attorneys standard of care in legal malpractice

actions. See Gans v Gray, Supra.

In Williams, the Court held, “Ordinarily the

probability of settkement would be proved by

expert testimony in the usual outcome of similar

cases including such factors as the merit of the case,

the size of the award that the plaintiff might have

received, and whether the defendant in the underly-

ing action would have been represented by counsel

for an insurance company." Williams, 457 F.Supp

328. Plaintiffs’, in their complaint, allege the req-

uisite actual harm, i.e. that they would have pre-

vailed in the underlying action against the Magee-

Womens’ Hospital, its employees/surgeon and the

Ai16

drug manufacturer and that any award would be

collectable. Also, but for the negligence and fraud

of the defendants the plaintiffs would have pre-

vailed in a jury trial against the parties actually

sued.

Defendants are asking this Court to determine at

the pleading stage of the proceedings before any

evidence has been introduced as a matter of law that

the plaintiffs have suffered no compensable injury.

It is plaintiffs’ position that this is an inappropriate

time to award any proposed motion by defendants

to strike the complaint.

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress is

defined in Section 46 of the Restatement of Torts

Second as:

"Outrageous conduct causing severe

emotional distress (1) one who by

extreme and outrageous conduct inten-

tionally or recklessly causes severe

emotional distress to another is subject

A117 :

to liability for such emotional distress,

and if bodily harm to the other results

from it, for such bodily harm."

(Comment d) to the Restatement of Torts

Second, Section 46, provides further explanation:

"d. Extreme and outrageous con-

duct. The cases thus far decided are

found liability only where the defen-

dant's conduct has been extreme and

Outrageous. It has not been enough

that the defendant has acted with an

intent which is tortuous or even crimi-

nal or that he has intended to inflict

emotional distress, or even that his

conduct has been characterized by

‘malice’, or a degree of aggravation

which would entitle the plaintiff to

punitive damages for another tort.

Liability has been found only where

the conduct has been so outrageous in

character and so extreme in degree, as

to go beyond all possible bounds of

A118

decency and to be regarded as atro-

cious and utterly intolerable in civi-

lized community. Generally, the case

in one in which the recitation of the

facts to an average member of the

community would arouse his resent-

ment against the actor and lead him to

explain, ‘'Outrageous!’."

The Third Circuit of Appeals on Chuy_v

Philadelphia Eagles Football Club, 431 F.Supp. 254

(Eastern District Pa 1977), has outlined four ele-

ments necessary to sustain a cause of action under

Restatement of Tort Second Section 46:

1. The conduct must be extreme and

outrageous;

2. The conduct must be intentional or

reckless;

3. It must cause emotional distress;

4. The distress must be severe.

There is no requirement of physical injury

impact for this tort. The plaintiffs have alleged

more than sufficient amount of facts when recited

A119

to an average member of the community would

illicit the response of ‘outrageous.’ The overreach-

ing and fraud perpetrated upon them by the defen-

dants in supplying to them false opinions as to the

value of their case being only $26,500.00 because

they were ‘poor and black’ can only be character-

ized as extreme and outrageous.

Accepting as true plaintiffs’ allegations, the

Court must find that plaintiffs have alleged extreme

and outrageous conduct on the part of the defen-

dants. It is further asserted that the Court must

find that plaintiffs have alleged extreme and outra-

geous conduct on the part of the defendants. It is

further asserted that the Court must accept plain-

tiffs’ allegation that these statements as to the value

of their case were made for the sole purpose of

protecting the defendants’ interests and were made

to the detriment of the plaintiffs. In any event, it is

asserted that it is inappropriate to make a determi-

nation that the claim for intentional infliction of

emotional distress cannot stand without having the

opportunity to present all the facts in this case. It

A120

et ae ee |

should be for the trial judge to decide, after appro-

priate discovery, whether or not the count for

intentional infliction of emotional distress can be an

issue in this case.

I, I, Il of Plaintiffs’ lain

Do State a Cause of Action in Deceit

Paragraphs 21 through 28 and 33 through 35 of

the Second Amended Complaint plead with particu-

larity and specificity fraudulent misrepresentations,

concealment and nondisclosure.

The wife plaintiff, at the hearing before Judge

Wekselman to enforce the settlement, was not rep-

resented by counsel. Defendant Messer at the

hearing did not raise the issue of whether or not he

had the informed consent of the plaintiffs to bind

them to the settlement. Contrary to that proposi-

tion, he at all times maintained that he did have

their consent.

Defendant further argues that any lack of con-

sent by the defendant attorneys to bind the plaintiffs

A121

to a settlement should have been raised during the

appeal to the Superior Court.

Knowing that Mrs. Muhammad was not repre-

sented by independent counsel at the hearing before

Judge Wekselman to enforce the settlement and that

this issue could not have been brought upon the

appeal to the Superior Court, defendant Messer and

his law firm now seek to profit by their own fraud

on the plaintiffs and assert that res judicata and

collateral estoppel prevent them from bringing this

action.

This Honorable Court should not countenance

such a suggestion and should deny defendants’

Motion to Strike Counts I, II, III of plaintiffs’

Complaint.

Response to Defendants’ Motion trik nt IV

Count IV of plaintiffs’ Complaint sets forth a

cause of action in negligence asserting that the

defendants’ conduct ‘increased the risk’ that plain-

tiffs would not recover from the Magee-Womens

Hospital, its employee surgeon and the drug manu-

A122

nae

facturer. Defendants in their brief maintain that

the law is 'well established’ and that the only test

that can be applied to a legal malpractice action is

the “but for" test. They cite several Pennsylvania

Superior Court decisions in support of this state-

ment. However, the Pennsylvania Supreme Court

has not yet spoken on this issue. The plaintiff in

Gans, Supra, argued that Pennsylvania Law follow-

ing the Restatement (Second) of Torts, Section 323

(a), and Hamil v. Bashline, 481 Pa 256, 392 A.2d

1280 (1978) allow a legal malpractice claims to

show that the attorneys negligence increased the

risk of harm to the plaintiff. The Federal District

Court held that since any legal malpractice claim

did not involve "physical injury", the relative cau-

sation analysis allowed in Hamil v_Bashline for

medical malpractice cases could not be employed in

a legal malpractice case. Gans, 612 F.Supp. 614.

However, a Subcommittee which has promul-

gated the Proposed Jury Instructions on

Professional Negligence, has determined that the

Hamil v Bashline approach to proximate causation

A123

_e—asi is

should be used in a legal malpractice action. The

subcommittee has rejected the “but for test" as too

harsh and instead has employed the traditional sub-

stantial factor "language". The subcommittee

writes: “Perhaps most significantly, legal cause is

proved if the attorneys action or omission is shown

to have destroyed the reasonable possibility of the

client's success. Once the evidence sustains a rea-

sonable possibility of recovery, whether ample or

narrow, the defendant attorneys disregarded his

duty and failure to conform to the applicable stan-

dard of care will compel the imposition of liabil-

ity." Proposed Instruction Section 10.01 (E).

The Subcommittee in discussing the difference

between the causation issue and the measure of

damages issue writes that the current Superior

Court opinions: "Would seem to require the plain-

tiff to prove by a preponderance of the evidence

that he or she would have been successful in obtain-

ing a verdict in judgment in the prior litigation. To

give meaning to the dicta, the plaintiff would be

required to prove the precise amount of a verdict

A124

which would have been rendered by a jury ina

former action and further and, further that, that the

jury verdict would have been upheld on appeal. In

position of such a stringent burden or proof has

been rejected in many jurisdictions as an equitable

and inconsistent with existing authority in posing

malpractice liability upon other kinds of profes-

sionals for their negligent conduct.”

Defendants’ Motion for M ifi

Pleading/Count IV Breach of Contract

Defendants in their Third Set of Preliminary

Objections complain that paragraphs 41 and 42 of

Plaintiffs’ Complaint which plead that plaintiffs

have suffered pecuniary loss violates the applicable

Rules of Civil Procedure in that it lacks specificity.

Paragraphs 39 and 40 are essential to a discus-

sion of Paragraphs 41 and 42. Paragraphs 39 and

42 appear from plaintiffs’ Second Amended

Complaint appear as follows:

39. The agreement between the plain-

tiffs and defendants was in part written

A125

and in part oral. A true and correct

copy of the written portion, dated

March 17, 1978, is attached hereto and

designated, Exhibit "A". The oral

portion was entered into at a later date,

in the month of October, 1978.

40: The terms of the agreement

between the plaintiff and the defendant

are that:

a. The defendants would perform

in their representation of the plaintiffs

as attorneys skilled and experienced in

medical malpractice litigation;

b. The defendant law firm and

individual law firm member, defen-

dant, would perform in their represen-

tation as attorneys who were specialists

in medical malpractice litigation;

c. The defendants would pursue the

plaintiffs’ claim with due diligence;

d. The defendants would conduct a

thorough and diligent search of the

A126

underlying facts of the claim which

included a search of all hospital

records, a medical journal and medical

text search or surgical procedure,

anesthesia procedure, and medication

given;

e. The defendants would seek

expert information from scientists and

medical doctors knowledgeable in the

field of circumcision surgery, pediatric

anesthesiology and pharmacology;

f. The defendant would inquire of

the putative defendants before suit

entered for an explanation of the cause

of death of Nazir Muhammad;

g. The defendant would inquire of

the defendant in any suit filed by court

permitted discovery, timely made, of

the cause of injury; |

h. The defendants would give

advice and opinion, only after a thor-

ough research of the law and facts and

A127

‘meee

an intelligent decision reached there-

from;

i. The defendants would investigate

all possible claims and causes of action

on behalf of the plaintiffs and render

. opinions after reaching an intelligent

decision as to what causes of actions

existed and with respect to what causes

and course of action should be pur-

sued.

41. The defendants breached all of

the promises, terms and conditions set

forth in paragraph 40, above to the

pecuniary loss of the plaintiffs, includ-

ing attorneys fees and pre-judgment

interest.

42. As a result of the breach of

agreement by the defendants, the

plaintiffs suffered pecuniary loss in an

amount in excess of $20,000 plus the

interest thereon from April 23, 1982.

A128

Black's Legal Dictionary defines pecuniary loss

as:

"A loss of money, or of something

by which money or something of

money value may be acquired. As

applied to a dependent's loss from

death pecuniary loss means the reason-

able expectation of pecuniary benefit

from the continued life of the

deceased: such includes loss of ser-

vices, training, nurture, educations,

guidance, and society. Sea Land

Services, Inc. v Gaudet, 4114 U.S.

573, 94 S.Ct. 806, 39 L.Ed.2d 9."

The pecuniary loss that plaintiffs refer to in para-

graphs 41 aned 42 of their Complaint is set forth in

exquisite detail in paragraphs 14, 15 and 16 of their

Complaint. In these paragraphs, plaintiffs plead

that the pecuniary loss resulting from the defen-

dants' negligence and fraud in the claims filed and

in those that defendants failed to file against Magee-

Womens Hospital, its employee-surgeon, and the

A129

manufacturer-seller of Succinylcholine is a “loss of

wages and earnings for the natural life expectancy

of the decedent (an amount substantially in excess

of $26,500), for monies expended for medical bills,

funeral expenses, headstone and administration

expenses; for pain and suffering and inconvenience

on behalf of the decedent from the date of the

defendants acts until his death, substantially in

excess of $26,500, by jury trial or by settlement.

Additionally, damages would have been recovered

by Plaintiffs as parents for the loss of decedent's

society, companionship, services, aid and comfort,

assistance, wages and their pecuniary losses, either

by jury trial or settlement, substantially, in excess

of $26,500. Such damages were collectable from

Magee-Womens Hospital or its employee-surgeon

by reason of insurance and the Catastrophe Loss

Fund.:

Count IV sets out the oral contract that plaintiffs

entered into with the defendants. Without a reit-

eration of each allegation, plaintiffs placed their

trust in the defendants and in their promise to use

A130

their skill as lawyers experienced in medical mal-

practice cases to investigate and prosecute their

claim arising from the death of their infant son

Nazir.

Defendants should be estopped from suggesting

to the Court that they did not promise to do any of

these things that a lawyer must do on behalf of his

or her client.

Defendants also suggest in the concluding para-

graph of their brief that the defendants cannot be

responsible for the alleged failure to sue an uniden-

tified party. (i.e. the seller-manufacturer of the

Succinylcholine). The Court should not permit the

defendants who had a duty to investigate the iden-

tity of this putative tortfeasors some 7 years ago to

now bring their identity into issue.

Respectfully submitted,

ls/ Kenneth W. Behrend

Attorney for Plaintiffs

A131

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 218 Pittsburgh, 1987

PAMELA MUHAMMAD, Administratrix of

the Estate of NAZIR MUHAMMAD and

ABDULLAH MUHAMMAD,

Appellants,

vs.

STRASSBURGER, McKENNA, MESSER, SHILOBOD

and GUTNICK, a law partnership, HOWARD

MESSER and JAMES THOMAS, JR..,

Appellee.

BRIEF FOR APPELLANTS

Appeal from Order of Court entered January

13, 1987, in the Court of Common Pleas of

Allegheny County, Pennsylvania, at No.

GD84-6520, Civil Division.

Kenneth W. Behrend

PA I.D. No. 00406

BEHREND, MORAN, ERNSBERGER

and TAMILIA

2400 Grant Building

Pittsburgh, PA 15219

(412) 391-2515

Attorney for Appellants

A132

| LE OF CONTENT

Page

TABLE OF CITATIONS . «2... 00 c cee. li

STATEMENT OF JURISDICTION ....... ]

ORDER IN QUESTION ............... 2

STATMENT OF QUESTIONS INVOLVED. 3

STATEMENT OF THE CASE........... 4

SUMMARY OF THE ARGUMENT ....... 8

| ARGUMENT

I. THE TRIAL COURT ERRED IN

HOLDING THAT APPELLANTS'

ACTION IS BARRED BY A PRIOR

OPINION OF THE SUPERIOR

REE Ca UN dew CEN eee cae ees 10

Il. APPELLANTS COMPLAINT

SETS FORTH A VALID CAUSE OF

ACTION FOR LEGAL

MALPRACTICE SUFFICIENT TO

WITHSTAND A DEMURRER....... 21

be a ee a eee 30

OPINION OF THE COURT OF COMMON

WN Terese eth eis eek teien ed aes 31

PROOF Se ERs «Cask wo ioe 6 0 eee 40

A133

TABLE OF CITATIONS

Cases Page

A lectroplatin = A

Jenkins, 335 Pa. Super. 283, 484

Pe 95 0, ee 22

Azzarello v. Black Bros. Co., Inc., 480

Pa. 547, 391 A.2d 1020 (1978)....... 24

Baldino v. Castagna, 505 Pa. 239, 478

P&G 84. | | Se re eee 24

Boyer v. Smith, 345 Pa.Super. 66, 497

ph en a 24

Chorba v. Davlisa Enterprises, Inc., 303

Pa. Super. 497, 450 A.2d 36 (1982)... . 22, 27

ianfrani v mmonwealth, Stat

Employees Retirement Bd., 505 Pa.

294, 479 A.2d 468 (1984) ........... 22

Commonwealth v. Tick, Inc., 431 Pa. 420,

ZAG A.28 SAE CIGGR) «ok ccc icccwees 12

Daniels v. State Farm Mut. Auto Ins. ,

305 Pa.Super 352, 451 A.2d 684 (1982) . 12

ei bon ee baya ghananee v. Black, 350 Pa.

Super 134, 504 A.2d 281 (1986)...... 23, 26

Gallegor by Gallegor v. Felder, 329 Pa.

Super. 204, 478 A.2d 34 (1984) ...... 25

A134

Greentree Cinemas Inc., v. Hakim, 289 Pa.

Super 39, 432 A.2d 1039 (1981)......

Hamil v. Bashline, 481 Pa.256, 392 A.2d

Re 2 on ks oh cc w ab Kepenes

n hlin l .» 328

Pa.Super 442, 477 A.2d 527 (1984)....

Kuchinic v. McCrory, 422 Pa. 620, 222

Po fk eee a

Lebeau v. Lebeau, 258 Pa.Super. 519, 39

pe OE)

Long v. Long, 306 Pa.Super. 142, 452

Fie BOP CEPOED 6 oes 6 owe escne x

Mariscotti v. Tenari, 355 Pa.Super. 499,

AGS A.20 SO CESSES) . wc ccc ce ess

k Lane Shopping Center, Inc. v. Flame,

Pashak v. Barish, 303 Pa.Super. 559, 450

Sea I en ov ee tween e wees

Pratt v. Stein, 298 Pa.Super 92, 444 A.2d

| 7 > SG ae cee area reer

Rogers v. Lu, 335 Pa.Super 595, 485

ee EE eee ee os ee

A135

264 Pa.Super. 142, 398 A.2d 721 (1978) .

Rothman vy. Fillette, 507 Pa. 259, 469 A.2d

ee ES od oie kek ie Se Sw a 18

Schenkel v, Monheit, 266 Pa.Super 396,

Beer a COEFF) or oe wiewieresecs 10, 23

i Vv lair Memorial ital,

332 Pa.Super. 444, 481 A.2d 870

| Ua Ee oe one ae 24

Webb v. Zern, 422 Pa. 424, 220 A.2d

EN wie -0 6 ed de thee ee eso 24

Other

Restatement (Second) of Agency, section 15.. 19

Restatement (Second) of Torts, section 402A . 24

A136

STATEMENT OF JURISDICTION

Jurisdiction over this appeal is conferred upon

this Court under 42 Pa.C.S. section 742.

A137

IN QUE

AND NOW, to wit, this 13th day of January,

1987, upon the preliminary objections filed by the

defendants, it is hereby ORDERED, ADJUDGED

and DECREED that said demurrer is sustained and

judgment is entered in favor of the defendants.

It is further ORDERED that plaintiffs’ petition

for change of venue is denied.

BY THE COURT:

A138

TOF QUESTIONS INVOLVED

I. DID THE TRIAL COURT ERR IN HOLDING

THAT APPELLANTS’ ACTION [IS BARRED BY

A PRIOR OPINION OF THE SUPERIOR

COURT?

II. DOES APPELLANTS' COMPLAINT SET

FORTH A VALID CAUSE OF ACTION FOR

LEGAL MALPRACTICE SUFFICIENT TO

WITHSTAND A DEMURRER?

A139

T NT OF

This is an appeal from the order sustaining a

demurrer and entering judgment for appellees in a

legal malpractice case which developed as follows.

On November 7, 1977, Nazir Muhammad was

born to Pamela and Abdullah Muhammad at Magee

Womens Hospital in Pittsburgh. In November of

1977, a surgeon on the staff of Magee Womens

Hospital attempted to perform a circumcision on

the infant boy, but failed to remove a sufficient

amount of foreskin. As a result, the baby's penis

had a redundant prepuce with phimosis, a condition

which presented a health and hygiene hazard.

The parents took the infant to Children’s

Hospital for corrective surgery. On December 16,

1977, Doctor Stuart E. Price, Jr., a urologist, and

Dr. Helen Westman, an anesthesiologist, members

of the Children's Hospital staff, prepared for the

operation. The drug succinylcholine was adminis-

tered in preparation, followed by general anesthe-

sia. Although complications developed, the doctors

A140

elected to proceed with the operation rather than to

force the infant to undergo a second anesthesia at a

later date. The succinylcholine induced fatal pul-

monary edema in the baby, and he died three days

later from pulmonary insufficiency on December

19, 1977.

Three months later, Mr. and Mrs. Muhammad

retained Attorney James Thomas, Jr., to represent

them in a claim arising from the death of their baby

son, Nazir Muhammad. Seven months later, in

October, 1978, on the advice of Attorney Thomas,

Mr. and Mrs. Muhammad retained Attorney

Howard F. Messer and the partnership of

Strassburger, McKenna, Messer, Shilobod and

Gutnick to prosecute their claim.

Letters of administration for the estate of the

infant were granted on October 28, 1978. In

November, 1978, a complaint was filed with the

Medical Arbitration Board against Children's

Hospital of Pittsburgh, Stuart E. Price, Jr., M.D.,

and Helen Westman, M.D. A complaint was filed

against the same defendants in the Court of

\141

Common Pleas of Allegheny County on April 13,

1979. During a pretrial conciliation conference

before the Honorable Martin J. Wekselman, the

parties reached a settsement. The Muhammads,

represented by Attorney Howard F. Messer,

accepted the defendants’ settlement offer of $26,500

for all claims arising from the death of their son.

Thereafter, the Muhammads became dissatisfied

with the settlement. On April 5, 1982, upon peti-

tion of Children's Hospital, the trial court issued a

Rule to Show Cause why the settlement should not

be enforced. Tie trial court held a hearing on the

Rule on April 23, 1982. Still represented at the

hearing by Attorney Howard F. Messer, Mrs.

Muhammad expressed her opinion that the amount

of $26,500 was unfair and inadequate for the loss

of a child. N.T., 4/23/82, at 3; R. R. 113a. She

also testified that the settlement was negotiated by

unjust means and that she was represented poorly

by her own attorney. Id., at 3-4; R. R. 113-114a.

The court then questioned her as to her authoriza-

tion for her attorney to settle the case. She testified

A142

a ee ee

that she told him to do "whatever you feel is best,"

and that she authorized him to "settle for $23,000 if

we can't go any higher." Id. at 5; R. R. 115a. The

court held that Mrs. Muhammad:

did indeed authorize a settlement even

at $23,000 if counsel felt that were the

proper settlement. The only difficulty

is that she has changed her mind since

that time and now believes the settle-

ment to be inadequate. Having autho-

rized the settlement, she is not privi-

leged to change her mind at this point.

Had counsel not been authorized to

enter into the settlement that, of

course, would have been an entirely

different matter....

Id. at 7; R. R. 117a. Accordingly, the court

ordered the enforcement of the settlement agree-

ment and authorized appellees to pay the fund into

court. To date, the Muhammads have not accepted

that fund.

The Muhammads, then newly represented by

undersigned counsel, appealed Judge Wekselman's

decision to the Superior Court of Pennsylvania, at

No. 601 Pittsburgh, 1982. On November 23, 1984,

a panel composed of Judges Rowley, Johnson and

A143

Popovich affirmed the order of the trial court. The

memorandum opinion of this Court indicates that

the affirmance was based on the holding that Mr.

and Mrs. Muhammad authorized their attorney to

settle their claim against Children's Hospital and

Doctors Price and Westman.

Subsequent to taking the Superior Court appeal

from the settlement of the medical malpractice case,

the Muhammads brought an action alleging legal

malpractice against the partnership of Strassburger,

McKenna, Messer, Shilobod and Gutnick, and

against Attorneys Messer and Thomas. Their

complaint includes eight counts sounding in:

fraudulent misrepresentation (deceit); fraudulent

concealment (deceit); nondisclosure; breach of

contract; negligence ("but for" standard); negli-

gence ("substantiated facts" standard); outrageous

conduct causing severe emotional distress; and

breach of fiduciary obligation. The defendant

attorneys filed preliminary objections in the nature

of a demurrer to a second amended complaint filed

by the Muhammads.

A144

By order dated January 13, 1987, the Honorable

Marion K. Finkelhor sustained the defendant attor-

neys' demurrer and entered judgment in their

favor. Her opinion issued in conjunction with that

order states that the issue upon which she granted

the demurrer was "whether plaintiff's [sic] cause of

action is barred by the prior opinion of the Supe-

rior Court in this matter."

This appeal timely followed.

SUMMARY OF ARGUMENT

The Muhammads' complaint against appellees

essentially states a cause of action in legal malprac-

tice. Judge Finkelhor sustained a demurrer by

appellees and entered judgment in their favor. She

did so apparently on the basis that the Muhammads

had to show pecuniary damages in order to recover

in such an action; that in order to do so they had to

show that the settlement of the previous action was

inadequate; and that they were estopped from

making such a showing either by the doctrine of the

law of the case or the doctrine of collateral estop-

pel.

The doctrine of the law of the case was not,

however, applicable because appellees were not

parties to the previous action in which the settle-

ment was enforced.

The doctrine of collateral estoppel is applicable

only if an issue is actually adjudicated in a previous

action, if the party against whom the doctrine is

involved had a full, fair and adequate opportunity

to litigate the issue, and the adjudication of the issue

A146

peer

was essential to the disposition of the previous

action. The comments of Judge Wekselman con-

cerning the adequacy of the settlement did not

reflect an adjudication of the issue, but were merely

dicta. Likewise, this Court's remarks were not an

affirmance of a factual finding by Judge

Wekselman, but were also only dicta.

The Muhammads could not have had a fair

opportunity to adjudicate the adequacy of the set-

tlement negotiated by appellees when they were

represented by appellees in the previous action.

Although the Muhammads were represented by new

counsel in the appeal to this Court of that action,

they were bound by the record created by

appellees.

Finally, Judge Wekselman was required to

enforce the settlement once he had determined that

the settlement was authorized by them whether or

not that authorization was the result of malpractice

by appellees which caused the settlement to be inad-

equate. Similarly, this Court had no choice but to

affirm Judge Wekselman's order once it found sup-

A147

port in the record for his finding that the settlement

was authorized.

In reviewing a judgment entered on preliminary

objections in the nature of a demurrer, all allega-

tions in the complaint are deemed to be admitted,

and any doubts must be resolved in favor of over-

ruling the demurrer. To establish a cause of action

for legal malpractice, three elements must be

alleged: 1) employment of the attorneys; 2) failure

of the attorneys to exercise ordinary skill and

knowledge, and 3) actual pecuniary damage to the

client caused by the attorneys’ negligence.

Appellants’ complaint clearly alleges each of these

elements; it was therefore erroneous to sustain a

demurrer to the complaint.

A148

ARGUMENT

I. THE TRIAL COURT ERRED IN

HOLDING THAT APPELLANTS'

ACTION IS BARRED BY A PRIOR

OPINION OF THE SUPERIOR COURT

Although set forth in eight counts, the

Muhammads' complaint against appellees generally

pleads a cause of action for legal malpractice. To

establish such a cause of action, a plaintiff must

establish: 1) employment of the attorneys; 2) the

attorneys’ failure to exercise ordinary skill and

judgment; and 3) pecuniary damages proximately

caused by the attorneys’ malpractice. Schenkel v.

Monheit, 266 Pa. Super. 396, 405 A.2d 493 (1979).

Appellees in their preliminary objections to the

Muhammads’ complaint, focused on the third ele-

ment of damages stating that "[t]he settlement which

had been entered into by the Plaintiffs [appellants]

bars Plaintiffs' instant action and Plaintiffs are

estopped from relitigating the settlement claiming

additional damages for the same, i.e., the death of

Nazir Muhammad." In their brief accompanying

A149

their preliminary objections, appellees argued that

seven of the eight counts of appellants' complaint

were dependent on their allegations of the inade-

quacy of the settlement of the previous action

against Children's Hospital, Dr. Stuart E. Price, and

Dr. Helen Westman. They further argued that the

adequacy of the settlement had already been liti-

gated in the previous action and that, therefore,

under either the doctrine of collateral estoppel or

the doctrine of the law of the case, appellants’ seven

counts did not state causes of action.

After considering appellants’ preliminary objec-

tions, Judge Finkelhor sustained a demurrer to all

counts of appellants’ complaint. In her opinion, she

explained her decision as follows:

Defendant has also raised preliminary

objections in the nature of a demurrer

to all counts of plaintiffs’ complaint.

The issue is whether plaintiff's cause of

action is barred by the prior opinion of

the Superior Court in this matter. See

Muhammad v. Childrens Hospital, No.

601 Pittsburgh 1982 (Slip Opinion).

Said demurrer is sustained and an

appropriate Order is attached hereto.

OS 9 Cate iv be

we Nar Bed te a

wT) EL a BS ee ee

(Trial Court Opinion, p. 6). Although Judge

Finkelhor offered no analysis whatsoever of why

appellants’ "cause of action is barred by the prior

opinion of the Superior Court," it would appear

that she accepted appellees’ argument concerning

collateral estoppe! or law of the case.!

Although Muhammads concede that seven counts

of their complaint were dependent on their allega-

tions of the settlement's inadequacy, they most vig-

Orously content that neither of the two doctrines

invoked by appellees was applicable in the instant

Case.

1 Curiously, Judge Finkelhor sustained a demurrer to all

counts of appellants’ complaint despite the fact that

appellees’ argument concerning collateral estoppel and law

of the case by its own terms was relevant to only seven of

the eight counts. The remaining count, which alleged a

cause of action for emotional distress, was not dependent on

whether the settlement of the previous action was

inadequate. Thus, the emotional distress count would not fail

to state a cause of action even if the adequacy of the

settlement had already been litigated so as to estop

appellants from relitigating the issue. Appellants submit

that this Court, must, therefore, conclude that Judge

Finkelhor erred at the very Icast in sustaining a demurrer to

appellants’ emotional distress count.

LAW OF THE CASE

Appellants will first discuss the doctrine of the

law of the case since it is so obviously inapplicable

to this case and thus can be quickly and easily con-

sidered and disposed of by the Court. This doctrine

is a general rule of law that provides that issues

decided by an appellate court on a prior appeal

between the same parties will not be reconsidered

on a second appeal. Commonwealth v. Tick, Inc.,

431 Pa. 420, 246 A.2d 424 (1968); Daniels v. State

Farm Mut. Auto. Ins. Co., 305 Pa.Super. 352, 451

A.2d 684 (1982). In other words, the law of the

case doctrine requires that a second appeal involve

the same case as a previous appeal, which require-

ment cannot be satisfied unless the parties to both

appeals are the same.

Clearly, the parties to this appeal are not the

same parties as were involved in the previous

appeal that Judge Finkelhor held barred the instant

action. Although the Muhammads were parties in

both appeals, appellees were not parties in the pre-

vious appeal. This is thus not the same "case" that

A152

se ee en Pee ee

was involved in the previous appeal. Therefore,

even if the issue of the adequacy of the settlement

has been decided in the previous appeal (a fact

which appellants do not concede), the doctrine of

the law of the case could not possibly preclude

appellants from litigating that issue in the instant

action.2

COLLATERAL ESTOPPEL

The only doctrine which even arguably could

preclude appellants from litigating the adequacy of

the settlement is the doctrine of collateral estoppel.3

: In any cvent, appellees’ argument to Judge Finkelhor that

she should sustain their demurrer under the doctrine of the

law of the case was a non sequitur since that doctrine

applies only to appellate courts. Kuchinic v. McCrory, 422

Pa. 620, 222 A.2d 897 (1966).

3 Appelices in their trial bricf used the terms res judicata

and collateral estoppel interchangeably in support of their

argument that appellants were precluded from litigating the

adequacy of the settlement. Those terms, however,

represent very distinct doctrines. Unlike collateral estoppel,

and like law of the case, res judicata requires the identity of

the parties to the action. r nes_v ;

328 Pa.Super. 442, 477 A.2d 527 (1984). Since the parties to

the instant action are not identical to the parties in the

previous action, the doctrine of res judicata has no

applicability to this case.

A153

Collateral estoppel is a doctrine of issue preclusion.

Lebeau _v. Lebeau, 258 Pa.Super. 519, 393 A.2d

480 (1978). It essentially precludes a party in an

action from relitigating an issue which that party

litigated in a previous action.- In order for the

doctrine to be applicable, however, three conditions

must be satisfied. First, the issue in question must

have been actually adjudicated in the former action.

Oak Lane Shopping Center, Inc. v. Flame, 264

Pa.Super. 9, 398 A.2d 721 (1978). Second, the

party against whom the doctrine is invoked must

have had a full, fair and adequate opportunity to

litigate the issue. Long v. Long, 306 Pa.Super.

142, 452 A.2d 255 (1982). Third, the adjudication

of the issue had to have been essential to the dispo-

sition of the former action. Id. The Muhammads

submit that none of these conditions was met in

regard to the issue of the adequacy of the settle-

ment.

Appellants first content that adequacy of the set-

tlement was adjudicated neither by Judge

Wekselman in the previous action nor by this Court

A154

in the appeal of that action. In their successful

effort to persuade Judge Finkelhor otherwise,

appellees in their trial brief quoted out of context

the following portions of Judge Wekselman's opin-

ion and the Superior Court panel's memorandum:

[I]n the view of the Court, settle-

ment was indeed an advantageous one--

given the apparently difficult liability

and damages questions in the case.

Settlement having been authorized

and it being a proper settlement, the

court made the rule absolute and

authorized the Defendants to pay the

fund in the Court.

mmad v. Children's Hospital of Pittsburgh,

GD81-02864, Court of Common Pleas of

Allegheny County, Slip Opinion, p. 1., R. R. 107a.

Moreover, we agree with Judge

Wekselman's assessment that the set-

tlement was beneficial to Appellants’

interests since, at trial, they would

have had great difficulty in establishing

that any of the Appellees behaved neg-

ligently.

A155

No. 601 Pittsburgh 1982, Slip Opinion, p. 7., R. R.

125a.

Appellants concede that, out of context, the

foregoing quotations make it appear that both

courts adjudicated the adequacy of the settlement.

In context, however, it is apparent that the above

excerpts were merely gratuitous comments or

observations by the courts.

An examination of the transcript of the proceed-

ing before Judge Wekselman quite clearly reveals

that no issue of the adequacy of the settlement was

before-him and that no testimony was adduced by

either party on that issue except for a statement by

Mrs. Muhammad that she believed the amount of

the settlement was unfair. The only factual issue

presented to and resolved by Judge Wekselman was

whether Mrs. Muhammad had authorized the set-

tlement. This conclusion is evident from the fol-

lowing statements made by Judge Wekselman at the

hearing:

A156

THE COURT: Very well. It's the

Court's conclusion from the testimony

and from the in chambers discussion in

i which Mr. Messer indicated that he

' was of the belief that he was authorized

| to enter into the settlement that has

been corroborated by Mrs. Muhammad

who indicates that she did indeed

authorize settlement even at $23,000 if.

counsel felt that were the proper set-

tlement. The only difficulty is that she

has changed her mind since that time

and now believes the settlement to be

inadequate. Having authorized the set-

tlement, she is not privileged to change

her mind at this point. Had counsel not

been authorized to enter into the set-

tlement that, of course, would have

been an entirely different matter, but

the proper authority having been

granted we simply cannot permit these

cases to bounce around back and forth.

It is the Court's view, as it was then,

that the settlement agreement is a

proper, just and equitable settlement in

the circumstances, or the Court would

not have suggested it.

N.T. 4/23/82, at 7-8; R. R. 117-118a. It is thus

apparent that Judge Wekselman resolved the factual

issue of whether the settlement had been authorized

and then simply made a fleeting reference to his

A157

personal opinion that the amount of the settlement

was adequate.

Since Judge Wekselman made no factual finding

as to the adequacy of the settlement, this Court

could not of course have affirmed such a finding in

the prior appeal. Rather, this Court's comments

were essentially of the same nature as those of

Judge Wekselman. An examination of appellants’

brief in the previous appeal will demonstrate that

no issue was presented to the Court regarding the

settlement's adequacy. The panel's comments were

made at the end of its discussion of the last issue

raised by appellants. That issue dealt with whether

Mrs. Muhammad had given her express consent to

the settlement of appellants’ claim. After conclud-

ing that "there is no reason for this Court to disturb

the trial court's factual finding that Mr. Messer had

the appellants’ express consent to settle the claim

Judge Wekselman's opinion that the amount of the

settlement was adequate is most understandable in light of

his statement that he had suggested that the case be settled

for that amount.

A158

filed against the appellee,” the panel added the sur-

plusage that it also agreed with Judge Wekselman's

"assessment" of the adequacy of the settlement.

Thus, the Muhammads submit that there can be

no question that the above-quoted excerpts do not

represent the resolution of a factual issue by Judge

Wekselman or an affirmance of a factual finding by

this Court. Appellants therefore contend that there

has never been an adjudication of the adequacy of

the settlement such that collateral estoppel would

preclude the litigation of that issue in the instant

action.

Even if it is assumed that the issue of the settle-

ment's adequacy was actually litigated in the previ-

ous action, the Muhammads did not have a full, fair

and adequate opportunity to conduct that litigation.

At the proceeding before Judge Wekselman, appel-

lants were still represented by appellees. For

appellees to have contended in their trial brief that

such a proceeding constituted a full, fair and ade-

quate opportunity for the Muhammads to show that

appellees had negotiated an inadequate settlement

A159

was, to say the least, disingenuous and ludicrous. If

the Muhammads had been represented by different

counsel, Judge Wekselman presumably would have

been informed, as he was not, that other parties

whose liabilities were clear and who could have

contributed to a settlement had not been sued.

Furthermore, while the Muhammads were repre-

sented by new counsel in the appeal from Judge

Wekselman's order, they had to rely in that appeal

on the record created by appellees in the trial court

proceeding. Appellants therefore respectfully con-

tend that the only conclusion this Court can reach

that would comport with the reality of the previous

proceedings is that the Muhammads have never had

a full, fair and adequate opportunity to litigate the

adequacy of the settlement negotiated by appellees.

Thus, again, collateral estoppel would not preclude

the Muhammads from litigating the adequacy of the

settlement in this action.

Finally, even if this Court were to conclude that

the Muhammads had in the previous action a full

opportunity to litigate the issue of the adequacy of

A160

: the settlement and that that issue was actually adju-

dicated, the doctrine of collateral estoppel would

4 still not be applicable. It would not be applicable

| because an adjudication of the adequacy of the set-

! tlement was not essential to the disposition of the

former action.

The purpose of the former proceeding was to

dispose of Children's Hospital's Rule to Show Cause

why the settlement it had agreed upon with

appellees should not be enforced. In Pennsylvania,

an attorney cannot settle his client's litigation with-

out express authorization from the client. Rothman

y. Fillette, 503 Pa. 259, 469 A.2d 543 (1983).

Thus, the question to be answered in the proceeding

before Judge Wekselman was whether or not

appellees had been authorized to enter into the set-

tlement agreement. Judge Wekselman resolved that

question in favor of Children's Hospital and appel- -

lants readily concede that collateral estoppel would

preclude them from relitigating the question of

authorization in this action.

In the instant action, however, the Muhammads

PEP Te ke nS | ue ,

seek to prove that their authorization for the set-

tlement resulted from the legal malpractice of

appellees and in order to recover on that cause of

action they must show that the settlement they

authorized was inadequate. Neither issue was rele-

vant in the outcome of the proceeding before Judge

Wekselman. This conclusion results from the fol-

lowing general principles of agency:

An agency relation exists only if there

has been a manifestation by the princi-

pal to the agent that the agent may act

on his account, and consent by the

agent so to act. _

As in the case of any other agreement,

one or both of the parties may have

entered into it by mistake resulting

from fraud or otherwise. When this is

true, the agreement may be voidable

by the one mistaken. See the

Restatement of Contracts, Section 502.

However, until the agreement is

rescinded, the relation continues and

acts done in pursuance of it are effec-

tive as to third persons.

A162

Restatement (Second) of Agency, Section 15 and

Comment thereto.

Here, the agreement was the Muhammads'’

authorization to appellees to settle, and the act done

in pursuance of that agreement was appellees’ set-

tlement with the “third person" of Children's

Hospital. Thus, the settlement was effective as to

Children's Hospital even if appellees were given

authority by a mistake resulting from their mal-

practice. Therefore, whether or not appellees’

malpractice caused the Muhammads to authorize an

inadequate settlement, once Judge Wekselman had

determined that the Muhammads had in fact autho-

rized the settlement, he had no choice but to

enforce it as to Children's Hospital. Since the set-

tlement had to be enforced as to Children's Hospital

whether or not the amount of the settlement was

inadequate, it could not have been essential for

Judge Wekselman to adjudicate the issue of the set-

tlement's adequacy in order to dispose of Children's

A163

Hospital's Rule to Show Cause why the settlement

should not be enforced.5 |

An identical analysis applies to the previous

appeal before this Court. Since that appeal con-

cerned only Judge Wekselman's order to enforce

the settlement as to Children's Hospital and the ade-

quacy of the settlement was irrelevant to the pro-

priety of that order, it was not essential for this

Court to adjudicate that issue in the former appeal.

As the foregoing analysis demonstrates, the issue

of the adequacy of the settlement was not essential

to the disposition of the former action. Therefore,

collateral estoppel would not preclude the

Muhammads from litigating that issue in the instant

action.

Since neither the doctrine of the law of the case

nor the doctrine of collateral estoppel would pre-

It is true that this Court has held that a settlement

agreement may be attacked on the basis of fraud. See

Greentree Cinemas Inc., v. Hakim, 289 Pa.Super. 39, 432 A.2d

1039 (1981). However, fraud in this context refers to fraud

by the party seeking to enforce the agreement, not, as in the

instant case, to fraud by an agent of the party against whom

the enforcement of the agreement is sought.

A164

clude the Muhammads from litigating the adequacy

of the settlement negotiated by appellees, appellants

respectfully submit that Judge Finkelhor erred in

holding that the instant action is barred by the

decision in appellants’ previous action and, on that

basis, sustaining appellees’ demurrer. Accordingly,

the Muhammads urge this Court to correct that

error by vacating the order entering judgment

entered in favor of appellees and remanding this

case for appellants’ action to proceed.

A165

II. APPELLANTS' COMPLAINT SETS

FORTH A VALID CAUSE OF ACTION

FOR LEGAL MALPRACTICE

SUFFICIENT TO WITHSTAND A

DEMURRER.

It is submitted that the preceding section estab-

lishes that judgment for the attorney-appellees can-

not be justified on grounds of "the prior opinion of

the Superior Court in this matter," as it was granted

by Judge Finkelhor. This Court, however, might

deem it appropriate to affirm the judgment if it

would have been proper for any other reason

asserted in appellees’ preliminary objections to the

complaint. This section of the brief therefore

addresses the sufficiency of the allegations in the

complaint to state a cause of action upon which

relief can be granted. The complaint clearly states

a cause of action for legal malpractice based on a

number of different theories of liability.

In assessing whether a complaint states a cause

of action sufficient to withstand a demurrer, the

court must apply the following standard:

A preliminary objection in the

nature of a demurrer is not to be sus-

A166

tained and the complaint dismissed

unless the law says with certainty that

no recovery is possible. Hoffman v.

Misericordia Hosp. of Phila., 439 Pa.

510, 267 A.2d 867 (1970). Therefore,

if any theory of law will support the

claim raised by the [complaint], a dis-

missal is improper... .

For the purpose of our review of a

dismissal on the pleadings in the nature

of a demurrer, the averments of [the

complaint], except to the extent that

they constitute conclusions of law,

must be taken as true, Freezer Storage,

Inc. v. Armstrong Cash Co., 476 Pa.

270, 382 A.2d 715 (1978).

ni v mmonwealth Empl 1

Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468,

469 (1984). This Court has recently stated the test

in the following language:

A preliminary objection in the nature

of a demurrer “admits all relevant

facts sufficiently pleaded in the com-

plaint, and all inferences fairly

deducible therefrom, but not conclu-

sions of law or unjustified inferences."

Preliminary objections can properly be

sustained and a complaint dismissed

only in cases that are clear and free

from doubt. Any doubt must be

resolved against the moving party.

A167

Only where it appears with certainty

that, upon the facts averred, the law

will not permit recovery can the com-

plaint be dismissed and summary

judgment entered for the defendant.

Aetna Electroplating Co., Inc. vy. Jenkins, 335

Pa.Super. 283, 285, 484 A.2d 134, 135 (1984)

(citations omitted). Furthermore, any doubt should

be resolved in favor of overruling the demurrer,

Chorba v. Davlisa Enterprises, Inc., 303 Pa. Super.

497, 450 A.2d 36 (1982).

With this standard of review in mind, the ques-

tion is whether the complaint sets forth a claim

upon which relief can be granted.

This court has recently restated the elements of a

cause of action for legal malpractice:

There _are three essential elements

which must be established in order to

bring an ac

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