Opposition Brief — Muhammad v. Strassburger

Gupreme Court, U.S

FILED

. SEP 3 199)

‘ QRHGE OF FHE CLERK

No. 91-236

In The

Supreme Court of the United States

October Term, 1991

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PAMELA MUHAMMAD, Administratrix of the

Estate of NAZIR MUHAMMAD and

ABDULLAH MUHAMMAD,

Petitioners,

VS.

STRASSBURGER, MCKENNA, MESSER, SHILOBOD

AND GUTNICK, a law partnership;

HOWARD MESSER and JAMES THOMAS, JR.,

Respondents.

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Petition For Writ Of Certiorari To The

Supreme Court Of Pennsylvania

®

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

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Perer J. Taytor, Esquire

Counsel of Record

James R. ScHADEL, Esquire

Davip L. Haber, Esquire

Murpny, Taycor & Trout, P.C.

326 Third Avenue, Suite 100

Pittsburgh, PA 15222

(412) 225-0200

Attorney for Respondents

Strassburger, McKenna, Messer,

Shilobod and Gutnick

and Howard Messer

QUESTIONS PRESENTED

Did the decision of the Pennsylvania Supreme Court

disallowing negligence or breach of contract suits

against the Petitioner’s lawyer after a voluntary set-

tlement, and limiting said claims to fraud, violate the

Due Process Clause of the Fourteenth Amendment of

the United States Constitution?

Did the decision of the Pennsylvania Supreme Court

refusing to permit the Petitioner leave to file a Fourth

Amended Complaint or finding that the Petitioner

had not pled a fraud claim with sufficient specificity

deny the Petitioner her Due Process rights under the

Fourteenth Amendment of the United States Consti-

tution?

PARTIES IN THE COURT BELOW

Pamela Muhammad, Administratrix of the Estate of

NAZIR MUHAMMAD and ABDULLAH MUHAMMAD,

Plaintiff

VS.

STRASSBURGER, MCKENNA, MESSER, SHILOBOD

AND GUTNICK, a law partnership; HOWARD MESSER

and JAMES THOMAS, JR.

Defendants

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TABLE OF CONTENTS

Page

ee i

Parties in the Court Below ........................ ii

SA iil

ME PUM occ vi cnet nav nedccareecveevess iv

Opinions and Judgments in the Court Below....... 1

Constitutional Provisions Involved................. l

Statement of the Case............. 00.00.0000 cee ee. 2

Summary of the Argument........................ 5

EI 8 a A ee saeea #

a Se eaeeveureccusveacn 12

iV

TABLE OF AUTHORITIES

Page

CASES

ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722

Pe ee ee oc eee hee wade ann cannes 8

Gropp v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27

Re 5 ats. g | Sy gers oer ee ene 11

Hortonville Joint School District No. 1, et al. v. Hor-

tonville Education Association, et al., 426 U.S. 482,

96 S.Ct. 2506, 49 L.E. 2d (1976)... ccc cece cece. 11

Insurance Concepts Inc. v. Western Life Insurance

Company, 639 F.2d 1108 (5th Cir. 1981)............. 4

Martinez v. California, 444 U.S. 277, 100 S.Ct. 553,

G2 U.c. Be See CA COG. TOS vic wv eck icevas 8, 9

Metropolitan Housing Development Corp. v. Village of

Arlington Heights, 616 F.2d 1006 (7th Cir. 1980) ..... 9

Muhammad v. Strassburger, et al., __ Pa. __, 587

PR es SM peat pene Og ape, ENN rere: ceo re &

Muhammad v. Children’s Hospital, et al., Superior

Ct. of Pennsylvaia (No. 601 Pgh. 1982, Novem-

ee BRR ARR ne Man irr ere et eee ee eee +

Nationwide Mutual Insurance Company v. Barbera,

eg Se Me ae” oy eG |) | 10

Pearson v. Ecological Science Corp., 522 F.2d 171 (5th

Cir. 1975), cert. denied, Skydell v. Ecological Sci-

ence Corp., 425 U.S. 912, 96 S.Ct. 1508, (1976) ...... Y

RULES

Pe ce OCs suv ye eet a ei ea eke eecLet 10

OPINIONS AND JUDGMENTS IN THE

COURTS BELOW

The Order and Opinion of the Court of Common

Pleas of Allegheny County, Pennsylvania, dismissing the

Second Amended Complaint of Petitioners is not

reported and is reproduced in the Appendix to Peti-

tioners’ Petition for Writ of Certiorari at pages A-51 to

A-62. The Superior Court of Pennsylvania’s decision

reversing the Court of Common Pleas of Allegheny

County, Pennsylvania with opinion is reported at 374 Pa.

Super. 613, 543 A.2d 1138 (1988). The decision and opin-

ion of the Supreme Court of Pennsylvania reversing the

Superior Court of Pennsylvania and reinstating the Order

of the Court of Common Pleas of Allegheny County

Pennsylvania dismissing the Second Amended Complaint

with Opinion is reported at __ Pa. __, 587 S.2d 1346

(1991).

CONSTITUTIONAL PROVISIONS INVOLVED

Fourteenth Amendment, Section I — United States

Constitution

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of jaw; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

STATEMENT OF THE CASE

Petitioners, Pamela and Abdullah Muhammad, filed

the instant action April 19, 1984 by praecipe. The Com-

plaint in this matter was not filed until April 2, 1986,

almost two years after the Praecipe. In response to the

Respondents’ timely preliminary objections, Petitioners

filed an Amended Complaint. After Respondents’ Second

Preliminary Objections were filed restating their original

objections and raising new challenges to the Petitioners’

Amended Complaint, the Petitioners filed a Second

Amended Complaint.

The Second Amended Complaint (hereinafter “Com-

plaint”) contained eight counts alleging wrongful con-

duct. The Complaint sets forth the following factual

allegations. Pamela Muhammad is the mother of a

deceased baby boy, Nazir Muhammad. She is also the

administratrix of the estate of Nazir Muhammad. The

Complaint further alleges that the defendant lawyers and

law firm represented Pamela Muhammad and her then

husband, Abdullah Muhammad in a medical malpractice

civil action before the Court of Common Pleas of Alle-

gheny County, Pennsylvania.

The Complaint alleges that an incomplete circumcision

was performed on the infant shortly after his birth at McGee

Women’s Hospital. About 4 weeks later the deceased was

admitted to Children’s Hospital for a second circumcision

because his parents were apparently dissatisfied with the

first circumcision. It is alleged in the Complaint that, as a

consequence of drugs administered in preparation for gen-

eral anesthesia, Nazir Muhammad suffered a pulmonary

edema and died on December 19, 1977, then being about 4

weeks of age. In April of 1979 an action was filed against

various medical providers in the Court of Common Pleas of

Allegheny County, Pennsylvania.

The Complaint further pleads that the medical mal-

practice case was settled for $26,500. The settlement was

achieved as a result of pretrial conciliation before Judge

Martin I. Wekselman of the Court of Common Pleas of

Allegheny County, Pennsylvania, wherein the Petitioners

agreed to accept the settlement offer in the amount rec-

ommended by Judge Wekselman of $26,500.00.

The Petitioners thereafter became dissatisfied with

settlement to which they agreed and a tempted to have

the Court prevent enforcement of the settlement. The

Petitioner contested the adequacy of the amount of settle-

ment, the unfairness used to obtain it, and the quality of

representation provided by her attorneys. At the hearing

before Judge Martin I. Wekselman, Mrs. Muhammad tes-

tified,

“Well, I felt that the amount was unfair, and that

whatever was arrived at was arrived at by

unjust means. You know, $26,500 is not enough

for the loss of a child. It seems like even my

defense counsel was in agreement with it, you

know. It was like as if, you know, | would com-

mit a crime for bringing this suit against the

hospital and the doctors involved. I feel like I

am being represented poorly, even by my own

attorney.”

After a hearing on the Petition to Enforce the settlement,

the Court by Order dated April 23, 1982 confirmed the

settlement.

In November, 1984, the Superior Court of Pennsylva-

nia affirmed the enforcement of the settlement. Before the

Superior Court of Pennsylvania, the Petitioners raised

numerous challenges to the settlement including lack of

consent, improper procedures for enforcement of the set-

tlement, and lack of counsel at the hearing before Judge

Martin. I. Wekselman.!

The thrust of the Complaint is that the failure to

include other defendants decreased the size of the settle-

ment Petitioners were able to obtain. The Petitioners

assert that a drug manufacturer and other doctors and

another hospital could have been sued. In each Count of

the Complaint (except the emotional distress claim) Peti-

tioners pled that if something different had been done,

the Petitioners could have achieved a settlement or ver-

dict in excess of the amount of the settlement that was

achieved and the other defendants would have made the

case “worth more”.

The Second Amended Complaint corrected some of

the pleading and procedural errors of the Complaint and

Amended Complaint, but failed to correct the fatal

defects raised in the Respondents’ Third Preliminary

Objections. The Court of Common Pleas of Allegheny

County, Pennsylvania granted Respondents’ demurrer

nd entered judgment in favor of Respondents. The Supe-

r'> Court reversed the granting of the demurrer and

remanded for further proceedings. A Petition for

Allowance of Appeal was filed in response to the order of

the Superior Court reversing the granting of the demurrer by

the lower Court in the Supreme Court of Pennsylvania.

1 The Superior Court of Pennsylvania affirmed the settle-

ment in a Memorandum Opinion. Mukammad v. Children’s Hos-

pital of Pittsburgh, (No. 601 Pgh 1982, November, 1984).

The Petition for Allowance of Appeal was granted by the

Pennsylvania Supreme Court and on March 15, 1991 the

Supreme Court of Pennsylvania reversed the Superior

Court and reinstated the Order of the Court of Common

Pleas of Allegheny County dismissing the Second

amended Complaint.

In dismissing the Complaint, the Supreme Court of

Pennsylvania determined that as a matter of public policy

in Pennsylvania lawsuits in contract or negligence could

not be maintained by dissatisfied plaintiffs against their

attorneys after a voluntary settlement. The Supreme

Court of Pennsylvania allowed claims based on fraud in

procuring the settlement. A plaintiff was required to

plead that his attorney committed fraud in procuring the

settlement and must plead the fraud with specificity as

required under the Pennsylvania Rules of Civil Pro-

cedure. Finding that the Petitioners had not pled a claim

for fraud and could not do so, the Supreme Court of

Pennsylvania reinstated the Order of the Court of Com-

mon Pleas of Allegheny County dismissing the Second

Amended Complaint. The Petitioners were given three

opportunities to plead a claim for fraud and the Supreme

Court of Pennsylvania determined that based on the

record before them and the opportunities provided to the

Petitioners, no claim for fraud could be pled against the

Respondents.

SUMMARY OF THE ARGUMENT

The decision of the Supreme Court of Pennsylvania

limiting the remedies available to a dissatisfied plaintiff

after a voluntary settlement does not raise any constitu-

tional question. The decision is not wholly arbitrary or

irrational and therefore is left to the discretion of the

states in administering its own tort law. This is not a case

involving denial of access to the Courts. The plaintiff

filed a medical malpractice suit which was voluntarily

settled. She then subsequently filed a legal malpractice

action which is the present matter before this Honorable

Court. This case does not involve denial of access to the

Court, but is simply a petition by a dissatisfied litigant

with the results achieved.

The determination of whether the plaintiff has

alleged a fraudulent claim is a matter of state law and the

decision of the Supreme Court of Pennsylvania is binding

upon this Court. Furthermore, the decision not to give the

plaintiff a fourth opportunity to file a complaint setting

forth a claim for fraud does not raise a constitutional

question.

The decision of the Pennsylvania Supreme Court is a

question of state law. This decision does not violate any

constitutional protection and therefore no federal ques-

tion is raised.

ARGUMENT

I. THE DECISION OF THE PENNSYLVANIA

SUPREME COURT DISALLOWING NEGLIGENCE

OR BREACH OF CONTRACT SUITS AGAINST A

PLAINTIFF’S LAWYER AFTER A VOLUNTARY

SETTLEMENT, AND LIMITING THOSE CLAIMS

TO FRAUD, DOES NOT VIOLATE THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT OF THE UNITED STATES CONSTI-

TUTION. .

The decision of the Pennsylvania Supreme Court

does not violate any constitutional protection under the

Fourteenth Amendment. The Pennsylvania Supreme

Court decision was a determination of the parameters of

a suit that could be brought against an attorney for mal-

practice after the voluntary settlement of an underlying

case.

The Supreme Court of Pennsylvania’s decision was

grounded upon sound public policy. The Pennsylvania

Supreme Court declined to allow breach of contract and

negligence suits against lawyers after a voluntary settle-

ment since to allow these types of suits would create

chaos in the civil litigation system.

“The primary reason we decided today to disal-

low 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 would create chaos

in our civil litigation system. Lawyers would be

reluctant to settle a case for fear of some enter-

prising attorney representing a disgruntled cli-

ent could find a way to sue them for something

that ‘could have been done, but was not.’ We

refuse to endorse a rule that wil! discourage

settlements and increase substantially the

number of legal malpractice cases. A long-

standing principal of our courts has been to

encourage settlements; we will not act so as to

discourage them.”

Muhammad v. Strassburger, et al., ____ Pa. __, 587 A.2d

1346, 1349 (1991).

In Martinez v. California, 444 U.S. 277, 100 S. Ct. 553,

62 L.E. 2d 481 (1979) this Court considered the role of the

U.S. Constitution and the federal courts in a state’s deter-

mination of its tort law. In Martinez v. California, supra, the

plaintiff challenged a state law granting immunity to

state workers involved in parole and probation decisions.

This Court unanimously rejected a due process challenge

to the immunity afforded by the State of California.

“But even if one characterizes the immunity

defense-‘as a statutory deprivation, it would

remain true that the State’s interest in fashion-

ing its own rules of tort is paramount to any

discernible federal interest, except perhaps an

interest of protecting the individual citizen from

state action that is wholly arbitrary or irra-

tional.”

Martinez v. California, 444 U.S. at 282.

Clearly, the decision of the Supreme Court of Penn-

sylvania in setting the parameters of its tort law in legal

malpractice action is not wholly arbitrary or irrational. It

clearly furthers the sound public policy of promoting

settlements and the finality ¢ civil litigation; A policy

that Federal Courts have also supported. ABKCO Music,

Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2nd Cir. 1983);

Insurance Concepts, Inc. v. Western Life Insurance Company,

639 F. 2d 1108 (5th Cir. 1981); Metropolitan Housing Devel-

opment Corp. v. Village of Arlington Heights, 616 F.2d 1006

(7th Cir. 1980); Pearson v. Ecological Science Corp., 522 F.2d

171 (5th Cir. 1975), cert. denied, Skydell v. Ecological Science

Corp., 425 U.S. 912, 96 S: Ct. 1508 (1976).

If the Petitioner is arguing that she has been deprived

access to the Courts, or a meaningful opportunity to

appear, this argument is without merit. The Petitioner

was provided access to the Pennsylvania courts to file a

medical malpractice action which was voluntarily settled.

The plaintiff was also provided access to the Courts to file

the legal malpractice action that is presently before this

Court on the Petitioner’s Petition for Certiorari. A litigant

who is merely unhappy with the results cannot raise a

due process claim claiming lack of access to the courts.

Clearly, the Petitioner has not raised a valid challenge

that she has been denied access to the courts of Pennsyl-

vania.

It would also appear that in raising her due process

claim, the petitioner has not set forth any interest which

is being deprived without due process of law. As this

Court noted in Martinez, the right to bring a tort action

based on an injury is not a clear property interest. How-

ever, even if a property or other interest protected by the

Fourteenth Amendment was found, the petitioner has not

been deprived of any interest without due process of law.

She had the right to file her suit and was given every

opportunity to convince the courts of Pennsylvania that

under Pennsylvania tort law she could successfully bring

a suit against her attorneys.

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The Pennsylvania Supreme Court set forth a second

basis for dismissal of the Complaint. In footnote 13 of its

Opinion, the Court also found that the petitioner had set

forth no harm suffered as a result of the settlement. The

Court determined that the harm suffered was so specula-

tive that it would not allow a contract or tort claim to

proceed. Consequently, there is an independent basis

under state law for dismissal of the action, the failure to

allege a recoverable harm.

II. THE PENNSYLVANIA SUPREME COURT DID

NOT DENY THE PETITIONER DUE PROCESS BY

REFUSING HER A FOURTH OPPORTUNITY TO

PLEAD A FRAUD CLAIM AGAINST KESPON-

DENTS OR FINDING THAT THE PETITIONER’S

SECOND AMENDED COMPLAINT DID NOT

CONTAIN A SUFFICIENTLY PLED FRAUD

COUNT.

The decision of whether to permit the petitioner to

file a fourth amended Complaint is a question of state

law. There is no constitutional right to have an indefinite

opportunity to plead a claim under Pennsylvania tort law.

There is no requirement that a plaintiff be given an

unlimited opportunity to plead a claim. The Pennsylvania

Courts are granted discretion in determining when a

plaintiff should be given additional opportunities to

plead a claim against a defendant. See e.g. Nationwide

Mutual Insurance Company v. Barbera, 443 Pa. 93, 277 A.2d

827 (1971).

Under Pennsylvania Rule of Civil Procedure 1028(c),

the Petitioner had an opportunity to file a Third

11

Amended Complaint after the Respondents filed Prelimi-

nary Objections to the Petitioners’ Second Amended

Complaint. The petitioner chose not to file an Amended

Complaint at that time but to rest on her pleadings. She

should not now complain that she has been denied an

opportunity to plead her cause of action.

The question whether the petitioner has pled suffi-

cient facts to support a fraud claim is clearly a matter of

state law. The decision of the Pennsylvania Supreme

Court on questions of state law are final and binding on

this Court. Hortonville Joint School District No. 1, et al. v.

Hortonville Education Association, et al., 426 U.S. 482, 96 S.

Ct. 2308, 49 L. E. 2d 1 (1976); Groppi v. Wisconsin, 400 U.S.

505, 91 S. Ct. 490, 27 L. E. 2d 57 (1971).

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CONCLUSION

For the foregoing reasons, Respondent contends that

the instant case presents no question of federal law. The

decision of the Pennsylvania Supreme Court on the

parameters of its tort law does not raise any constitu-

tional questions. Respondent requests that this action be

concluded and that this Petition for Writ of Certiorari be

denied.

Respectfully submitted,

Murpny, TAvcor & Trout, P.C.

Petrer J. TAYLOR

(Counsel of Record)

James R. SCHADEL

Davip L. HaBER

Attorneys for Respondents

Strassburger, McKenna, Messer,

Shilobod and Gutnick

and Howard Messer

326 Third Avenue, Suite 100

Pittsburgh, PA 15222

(412) 255-0200