# Appendix — Muhammad v. Strassburger > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2515%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 502 U.S. 867 ## Text FIrpRg 81-336 | AUG 6 1991 NO | 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 sd 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. Al /s/ IRMA T. GARDNER Deputy Prothonotary DATED: March 15, 1991 A2 IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT PAMELA MUHAMMAD, Administratrix of the Estate of VS 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. A3 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. A4 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 A5 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 A6 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. A7 a | 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 A8 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. A9 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 ne 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 a 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 ry 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: I. II. II. af V. 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 ee 5 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) (SEAL) (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 Ee 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 d [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2515%3A2. Public record. Not legal advice.