Mahonski, J. v. Engel, C. , 2016 Pa. Super. 172 ( 2016 )

J-A18041-16, J-A18042-16, J-A18043-16
2016 Pa. Super. 172
JOANNE F. MAHONSKI, INDIVIDUALLY IN THE SUPERIOR COURT OF
AND AS EXECUTRIX OF THE ESTATE OF PENNSYLVANIA
FRANCIS J. MAHONSKI, BERNICE
WINDER, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF
WALTER J. WINDER, DIANE K. MASTERS,
ADMINISTRATRIX OF THE ESTATE OF
ROBERT C. MAHONSKI AND EXECUTRIX
OF THE ESTATE OF ELEANOR B.
MAHONSKI, LEONA A. KLEMENTOVICH,
INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF
LEO A. KLEMENTOVICH, AND LEO F.
KLEMENTOVICH,
Appellants
v.
CAROLINE M. ENGEL, INDIVIDUALLY
AND AS EXECUTRIX OF THE ESTATE OF
HOWARD A. ENGEL; JOSEPH L. RIDER,
INDIVIDUALLY, TRADING AND DOING
BUSINESS AS LAW OFFICES OF JOSEPH
L. RIDER, AND AS TRUSTEE AD LITEM
FOR LAW OFFICES OF JOSEPH L. RIDER;
PAUL A. ROMAN, INDIVIDUALLY,
TRADING AND DOING BUSINESS AS
LAW OFFICES OF JOSEPH L. RIDER, AND
AS TRUSTEE AD LITEM FOR LAW
OFFICES OF JOSEPH L. RIDER; LAW
OFFICES OF JOSEPH L. RIDER; RANGE
RESOURCES APPALACHIA, LLC; AND
RANGE RESOURCES CORPORATION,
Appellees No. 1123 MDA 2015
Appeal from the Judgment Entered September 28, 2015
In the Court of Common Pleas of Lycoming County
Civil Division at No(s): 11-01458
J-A18041-16, J-A18042-16, J-A18043-16
JOANNE F. MAHONSKI, BERNICE IN THE SUPERIOR COURT OF
WINDER, DIANE K. MASTERS, PENNSYLVANIA
EXECUTRIX OF THE ESTATE OF ELEANOR
B. MAHONSKI, AND LEONA A.
KLEMENTOVICH,
Appellants
v.
CAROLINE M. ENGEL,
Appellee No. 1160 MDA 2015
Appeal from the Judgment Entered July 6, 2015
In the Court of Common Pleas of Lycoming County
Civil Division at No(s): 12-01292
JOANNE F. MAHONSKI, INDIVIDUALLY IN THE SUPERIOR COURT OF
AND AS EXECUTRIX OF THE ESTATE OF PENNSYLVANIA
FRANCIS J. MAHONSKI, BERNICE
WINDER INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF
WALTER J. WINDER, DIANE K. MASTERS,
ADMINISTRATRIX OF THE ESTATE OF
ROBERT C. MAHONSKI AND EXECUTRIX
OF THE ESTATE OF ELEANOR B.
MAHONSKI, LEONA A. KLEMENTOVICH,
INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF
LEO A. KLEMENTOVICH, AND LEO F.
KLEMENTOVICH,
Appellants
v.
CAROLINE M. ENGEL, INDIVIDUALLY
AND AS EXECUTRIX OF THE ESTATE OF
HOWARD A. ENGEL; JOSEPH L. RIDER,
INDIVIDUALLY, TRADING AND DOING
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BUSINESS AS LAW OFFICES OF JOSEPH
L. RIDER, AND AS TRUSTEE AD LITEM
FOR LAW OFFICES OF JOSEPH L. RIDER;
PAUL A. ROMAN, INDIVIDUALLY,
TRADING AND DOING BUSINESS AS
LAW OFFICES OF JOSEPH L. RIDER, AND
AS TRUSTEE AD LITEM FOR LAW
OFFICES OF JOSEPH L. RIDER; LAW
OFFICES OF JOSEPH L. RIDER; RANGE
RESOURCES APPALACHIA, LLC; AND
RANGE RESOURCES CORPORATION,
Appellees No. 2113 MDA 2015
Appeal from the Judgment Entered November 20, 2015
In the Court of Common Pleas of Lycoming County
Civil Division at No(s): 11-01458
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 08, 2016
This case involves three separate appeals from matters arising from
two cases filed in the Court of Common Pleas of Lycoming County in which
the trial court entered judgment in favor of Appellees Caroline M. Engel,
Atty. Paul A. Roman, Atty. Joseph L. Rider, the Law Offices of Joseph L.
Rider, Range Resources Appalachia, LLC, and Range Recourses Corporation. 1
For the following reasons, we affirm.
The present action with a muddled procedural history arose out of a
family dispute concerning a 1990 real estate transaction involving the sale of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
This Court consolidated these three cases on appeal for ease of review as
their procedural histories are closely intertwined.
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362.2 acres of unimproved mountain land in Cogan House Township and the
property’s corresponding subsurface rights. At that time, the property was
owned in fee simple by nine siblings.2 Appellants, other than Atty. Leo
Klementovich, are the siblings or the representatives of the siblings' estates
and/or the estates of the siblings' spouses (collectively the “Appellant
Siblings”). Atty. Klementovich is the son of Appellant Sibling Leona A.
Klementovich and was granted an interest in the property from his mother.
In March 1990, Appellee Caroline M. Engel (“Appellee Engel”), who
was one of the siblings, approached her family with an offer to purchase the
property. Atty. Klementovich orchestrated and conducted a private family
meeting with Appellant Siblings to set the terms upon which they would sell
the property to Appellee Engel. Atty. Rider and Atty. Roman (“Appellee
attorneys”) were not involved in these negotiations. The terms sheet set the
purchase price at $135,000, conveyed 51% of the oil and gas rights to
Appellee Engel, leaving the remaining percentage to be divided among the
____________________________________________
2
The nine siblings are: Bruno Chester Mahonski (not participating in this
action), Robert C. Mahonski (estate represented by Diane K Masters),
Francis J. Mahonski (estate represented by Joanne F. Mahonski), Bernice
Winder (participating in her own right and on behalf of the estate of Walter
J. Winder), Phyllis M. Griggs (not participating in this action), Leona A.
Klementovich (participating in her own right and on behalf of the estate of
Leo A. Klementovich), Helen M. Churba (not participating in this action),
Eugenia E. Woltz (not participating in this action) and Appellee Caroline M.
Engel (named a defendant in her own right and as representative of the
estate of Howard A. Engel).
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remaining siblings. Appellants concede they wished to give Appellee Engel
exclusive leasing rights to the property as there were so many owners with
large families. Atty. Klementovich claimed that he spoke to Atty. Roman
who opined that, in order to grant leasing control to Appellee Engel, the sale
would have to convey a majority interest to Engel.
Appellee Engel and Atty. Klementovich sought the assistance of
Appellee attorneys to prepare a written agreement of sale and an
assignment of the subsurface rights. The drafted agreement was revised
several times based on negotiations between Atty. Klementovich and
Appellee Engel. Atty. Klementovich insisted that the agreement contain an
integration clause to declare the contract to be the full and final contract
between the parties that would supercede any other agreements, oral or
written, on the same subject. In addition, Atty. Klementovich assured
Appellee attorneys that despite the fact that Appellee attorneys had drafted
the sale agreement for parties with conflicting interests, Atty. Klementovich
believed “all interests can be adequately protected by one attorney.” Trial
Ct. Opinion, 11/20/15, at 3.
In the final agreement that was executed in October 1990, the parties
agreed that Appellants would retain interests in “all minerals, gas,
petroleum, and coal royalties paid under existing and future leases.” Id.
Appellant Siblings’ interests ranged between 5.444% and 6.125% while
Appellee Engel received 56.444%. Appellee attorneys did not meet with any
of Appellant Siblings, who did not request to speak with counsel at any point
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before signing the documents. Both Appellee Engel and Appellant Siblings
shared in the Appellee attorneys’ legal fees.
Nearly twenty years later, in July 2010, Atty. Klementovich discovered
that Appellee Engel had entered into a lease of the subsurface rights in
January 2008 with Great Lakes Energy Partners, LLC and had received
$125,197.45 from Great Lakes’ successor, Appellee Range Resources. As no
drilling for natural gas ever took place, neither Appellee Engel nor Appellants
received any royalties.
In August 2011, Appellants, represented by Atty. Klementovich, filed
the first complaint at civil docket 11-01458 to challenge the validity of the
1990 property sale and gas rights assignment. In the first complaint,
Appellants raised counts of fraud, breach of fiduciary duty, “account and
render,” and “reformation” against Appellees Engel and Range Resources, as
well as professional negligence, breach of contract, and breach of fiduciary
duty against Appellee attorneys and their law firm. The complaint also
included a quiet title claim with respect to the property’s subsurface rights.
Appellees Engel, Atty. Rider, and Atty. Roman filed preliminary
objections to Appellants’ complaint. The trial court granted Appellee Engel’s
preliminary objections to Count II (breach of fiduciary duty) and Count III
(account and render), but overruled all other preliminary objections.
On August 7, 2012, Appellants filed a second complaint at civil docket
12-01292 against Appellee Engel for breach of contract and breach of
fiduciary duties, seeking a proportionate percentage share of the lease
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payment that Appellee Engel received from Appellee Range Resources. This
case was initially consolidated with the first complaint docketed at 11-01458.
To avoid confusion, we will refer to the first complaint docketed at 11-01458
as the “property sale action” and the second complaint docketed at 12-
01292 as the “lease action.”
After discovery progressed, all Appellees filed motions for summary
judgment in the property sale action. The trial court granted Appellee Range
Resources’ motion and dismissed all of Appellants’ claims against it without
opposition. In addition, the trial court granted summary judgment in favor
of Appellee Engel on Appellants’ fraud claim, specifically finding the
applicable statute of limitations barred the action, which was filed twenty
years after the deed was executed. Order, 4/21/15, at 1. However, the trial
court denied the motion for summary judgment filed by Appellee attorneys,
specifically finding that the statute of limitations was not a bar pursuant to
the discovery rule. The trial court found that there was never a triggering
event for Appellants to question the legal advice of Appellee attorneys prior
to notice of Appellees’ lease in 2010.
Appellants subsequently appealed the trial court’s entry of summary
judgment on the fraud claim against Appellee Engel, but this Court
dismissed the appeal as it was taken from a non-appealable interlocutory
order. While the appeal was pending, the trial court severed the previously
consolidated cases, cancelled the trial against the Appellee attorneys, and
ordered Appellants to proceed to trial on their remaining claims in both
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actions against Appellee Engel.3 The trial court held two separate trials: a
bench trial on the quiet title count and request for declaratory judgment in
the property sale action and a jury trial on the claims in the lease action. At
the conclusion of the lease action trial held on May 20-21, 2015, the jury
returned a verdict in favor of Appellee Engel. Appellants filed their first post-
trial motion in the lease action on June 1, 2015.4
In an order docketed on June 9, 2015, the trial court dismissed
Appellants’ claims heard at the bench trial. With respect to Appellants’
request for declaratory relief pertaining to the “respective rights of the
parties pursuant to the assignment of the lease,” the trial court found that
Appellants:
surrendered all of their interest, and thus entitlement to any
monies received, under any leasing of the subject tract for oil,
gas, or other mineral exploration, with the exception of royalties
received from the extraction of any oil, gas, or other minerals, to
____________________________________________
3
Although the trial court continued to resolve Appellants’ claims while an
appeal was pending in this Court, the trial court was not divested of its
jurisdiction upon the filing of this notice of appeal as Appellant sought review
of a non-appealable interlocutory order. See Pa.R.A.P. 1701 (stating that a
trial court may “[p]roceed further in any matter in which a non-appealable
interlocutory order has been entered, notwithstanding the filing of a notice
of appeal or a petition for review of the order”). See also Melani v. Nw.
Eng'g, Inc., 909 A.2d 404, 406 (Pa. Super. 2006) (finding appeal before
the entry of judgment did not divest the trial court of jurisdiction since the
appeal was from an interlocutory order).
4
Appellants’ first post-trial motion was timely filed within ten days of the
jury’s verdict pursuant to Pa.R.C.P. 227.1 as the tenth day fell on Sunday,
May 31, 2015.
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which [Appellants] are entitled to a percentage share as set forth
in the deed.
Trial Court Order, docketed 6/9/15, at 1. Appellants filed a second post-trial
motion on June 10, 2015, which was filed at both dockets. On June 29,
2015, the trial court entered an order denying both of Appellants’ post-trial
motions.
Appellants filed notices of appeal in both cases before the trial court
had entered judgment. This Court docketed the appeal of the property sale
action at 1124 MDA 2015 and the appeal of the lease action at 1160 MDA
2015. The Lycoming County Prothonotary subsequently entered judgment
in favor of Appellee Engel in the lease action on July 6, 2015, and in the
quiet title claim in the property sale action on September 28, 2015.
Nevertheless, at that point, Appellants’ claims against Appellee
attorneys had not yet been resolved in the property sale action. On
September 10, 2015, Appellee attorneys filed a second motion for summary
judgment. On November 20, 2015, the trial court granted the motion for
summary judgment. Appellants filed a timely notice of appeal, which was
docketed in this Court at 2113 MDA 2015.
We note that the trial court’s entry of summary judgment on
November 20, 2015 against Appellee attorneys was a final order that
disposed of all parties in the property sale case and rendered the prior
orders dismissing the claims against the other Appellees final under
Pa.R.A.P. 341. See Betz v. Pneumo Abex, LLC, 615 Pa. 504, 547, 44
A.3d 27, 54 (2012) (stating that “an appeal of a final order subsumes
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challenges to previous interlocutory decisions”); K.H. v. J.R., 573 Pa. 481,
494–95, 826 A.2d 863, 871–72 (2003) (appeal from denial of post-trial
motions was no longer interlocutory after the trial court's subsequent entry
of judgment in the case pursuant to Pa.R.A.P. 905(a)). Although Appellants’
appeal of the order in the property sale case entering judgment against
Appellee Engel was prematurely filed, the appeal was subsequently perfected
when the final, appealable order was entered, dismissing the claims against
the remaining parties. See Pa.R.A.P. 905 (“[a] notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”)
Before we reach the merits of these appeals, we must first address
Appellee Engel’s motion to quash Appellants’ first two appeals docketed at
1124 MDA 2015 and 1160 MDA 2015. Appellee adopts the argument of the
trial judge who filed a “Statement in Lieu of Formal Opinion,” refusing to
address the eighty-seven issues Appellants raised for appellate review in
their “concise” ten-page statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The trial
court specifically found that Appellants waived their right to appeal by filing
an outrageous number of claims in their 1925(b) statement in bad faith in
an attempt to overwhelm the court.
The purpose of Rule 1925 is to narrow the focus of an appeal to those
issues which the appellant wishes to raise on appeal. The rule sets clear
requirements to avoid waiver:
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(i) The Statement shall set forth only those rulings or errors that
the appellant intends to challenge.
(ii) The Statement shall concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge. The judge shall not
require the citation to authorities; however, appellant may
choose to include pertinent authorities in the Statement.
***
(iv) The Statement should not be redundant or provide lengthy
explanations as to any error. Where non-redundant, non-
frivolous issues are set forth in an appropriately concise manner,
the number of errors raised will not alone be grounds for finding
waiver.
Pa.R.A.P. 1925(b)(4)(i)-(ii),(iv) (emphasis added).
We begin by discussing a similar case, Kanter v. Epstein, 866 A.2d
394, 401 (Pa. Super. 2004), in which this Court held that the appellants’
attempt to raise 104 issues in their 1925(b) statement “deliberately
circumvented the meaning and purpose of Rule 1925(b) and … thereby
effectively precluded appellate review of the issues [they sought] to raise.”
In Kanter, a panel of this Court found that the defendants in a relatively
straightforward breach of contract action had violated the rules of appellate
procedure and the duty of dealing in good faith by raising an outrageous
number of issues in their 1925(b) statements. This Court found that the
only “motive underlying such conduct is to overwhelm the court system to
such an extent that the courts are forced to throw up their proverbial hands
in frustration.” Id. at 402.
However, in a subsequent decision in Eiser v. Brown & Williamson
Tobacco Corp., 595 Pa. 366, 938 A.2d 417 (2007) (Baldwin, J., plurality),
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our Supreme Court provided that “the number of issues raised in a Rule
1925(b) statement does not, without more, provide a basis upon which to
deny appellate review where an appeal otherwise complies with the
mandates of appellate practice.” Id. at 384, 938 A.2d at 427-28. However,
the Supreme Court distinguished the underlying facts of Eiser, indicating
that unlike Kanter, the appellants had a reasonable basis to include a large
number of issues in their 1925(b) statement as they had filed a complicated
lawsuit with numerous counts and multiple defendants that resulted in a
large number of trial court rulings.
Nevertheless, the Supreme Court in Eiser indicated that in a rare
case, like Kanter, where a trial court concludes there was an attempt to
thwart the appellate process by including an exceptionally large number of
issues in a Rule 1925(b) statement, waiver may result. Id. at 384, 938 A.2d
at 428. While the trial court in Eiser did not find that the appellants had
acted in bad faith by filing a lengthy 1925(b) statement, the Supreme Court
acknowledged that a disgruntled appellant could file a voluminous 1925(b)
statement in retaliation against a trial judge who did not rule in his favor.
As a result, the Supreme Court required lower courts to determine whether
the circumstances indicate that the appellant’s action was motivated by bad
faith. Id. at 383, 938 A.2d at 427 n. 16.
More recently, in Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa.
Super. 2008), this Court emphasized that a 1925(b) statement must be
“sufficiently concise and coherent such that the trial court judge may be able
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to identify the issues to be raised on appeal, and the circumstances must not
suggest the existence of bad faith.” After analyzing the decisions in Eiser
and Kanter, this Court found that as the appellant in Jiricko filed a 1925(b)
statement characterized as an incoherent, confusing, redundant, defamatory
rant, the appropriate remedy was to find waiver of the appellant’s claims.
Here, Atty. Klementovich filed 1925(b) statements in support of the
appeals at 1123 MDA 2015 and 1160 MDA 2015 containing eighty-seven
unnumbered issues for appellate review. Although the Supreme Court found
it reasonable for the appellant to raise a large number of issues on appeal in
the complex litigation in Eiser, this case does not involve complicated
causes of action, but concerns conventional breach of contract claims that
only required a two-day trial. Our review of the 1925(b) statements
confirms the trial court’s observation that Appellants’ issues are “overly
vague, redundant, [and] prolix” and some contain multiple sub-issues.
More importantly, we recognize the trial court refused to draft an
opinion analyzing Appellants’ eighty-seven issues as it made a specific
finding of fact that Atty. Klementovich had filed the 1925(b) statements in
bad faith. We note the Atty. Klementovich’s issues for appeal include
flippant remarks demonstrating disrespect of the judicial process, indicating
that the “the jury, indeed the entire trial, decided precisely nothing.”
1925(b) statement, 10/9/15, at 8. In another claim of error, Atty.
Klementovich vaguely argued that Appellants were entitled to a new trial
because “the jury demonstrably did not understand the most basic concepts
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of oil and gas law critical to interpreting the parties’ legal rights under the
documents.” 1925(b) statement, 10/9/15, at 8.
Appellants also filed motions in the trial court and in this Court asking
for the opportunity to revise their 1925(b) statements to avoid waiver.
Appellants unapologetically claimed that they believed it was necessary to
submit eighty-seven claims on appeal as there were “many, many errors of
consequence,” blaming the trial court for failing to provide reasoning for
each error when they were committed and in failing to address similar claims
in their post-trial motions, which Appellants set forth in “exquisite detail.”
Response to Application to Quash, 12/17/15, at 7. Accusing the trial court
of careless review, Atty. Klementovich asserts that “if [the trial judge] had
conscientiously considered the arguments on all these issues when they
originally arose, [he] should by this time have a thorough understanding of
them.” Id. at 10. Atty. Klementovich threatened that if the trial court
refused to rule in Appellants’ favor, “it will be clear beyond peradventure
that the court is motivated by prejudice, acrimony, bias, and ill will against
Appellants’ counsel, rather than a good faith desire to see the issues
presented on the appeal decided on the merits.” Motion, 12/14/15, at 5.
The record supports the trial court’s determination that Appellants’
voluminous 1925(b) statements failed to set forth non-redundant, non-
frivolous issues in an appropriately concise matter. We will not disturb the
trial court’s finding of fact that Appellants filed these two statements in bad
faith, deliberately circumventing the purpose of Rule 1925(b) in violation of
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our Rules of Appellate Procedure. Although Appellants have asked that we
remand to the trial court to allow them to file a shorter 1925(b) statement,
the plain language of Rule 1925(b) allows appellate courts to respect the
trial court’s determination that the number of issues raised was so abusive
that the appropriate remedy was to deem all appellate claims waived. As a
result, we conclude that the trial court did not err in dismissing the claims
raised in the appeals docketed at 1123 MDA 2015 and 1160 MDA 2015.
Appellants’ remaining claims on appeal were docketed by this Court at
2113 MDA 2015. Appellant challenges the trial court’s decision to grant
summary judgment on all the claims raised against Appellee attorneys who
assisted Atty. Klementovich in drafting the documents for the 1990 property
transfer pursuant to the terms agreed by the parties. Appellants also
contend the trial court erred in granting summary judgment in favor of
Appellee Engel on Appellants’ fraud and breach of fiduciary duty claims.
Before we reach the merits of these arguments, we must determine
whether Appellants’ claims are timely filed. As noted above, the trial court
found Appellants’ claims against Appellee Engel were time barred by the
statute of limitations as the action was filed over twenty years after the deed
was executed. However, the trial court found the discovery rule applied to
allow review of Appellants’ claims against Appellee attorneys.
An action to recover damages for injury to person or property which
sounds in fraud is governed by a two-year statute of limitations. See 42
Pa.C.S. § 5524(7). A four-year statute of limitations applies to the legal
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malpractice claim based in contract principles. 42 Pa.C.S. § 5525;
Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 571 (Pa. Super. 2007).
Generally, the statute of limitations begins to run when the right to institute
and maintain a suit arises. Toy v. Metro. Life Ins. Co., 863 A.2d 1, 7 (Pa.
Super. 2004), affirmed, 593 Pa. 20, 928 A.2d 186 (2007). The discovery
rule provides an exception in circumstances where the right to institute suit
has arisen, but it is not reasonable to expect the party, who has exercised
due diligence, to discover that he has been injured. Id. Pursuant to the
discovery rule, the statute of limitations is tolled until the plaintiff knows, or
in the exercise of reasonable diligence should have known, that he/she has
been injured and that her injury was caused by another's conduct. Id.
We first analyze Appellants’ argument that the trial court erred in
finding the statute of limitations barred its fraud claim against Appellee
Engel. Appellants’ claim is based on their assertion that Appellee Engel
fraudulently changed the terms of sale given to Appellee attorneys to
prepare the initial sales documents. While Appellants acknowledge that the
two-year statute of limitations has passed and attempt to invoke the
discovery rule exception, they fail to explain how they were prevented from
discovering this alleged fraud for twenty years. Appellants admit that they
read, signed, and executed the agreement of sale, the deed, and the
assignment, but assert that they could not themselves understand the
documents they signed which explicitly set forth the parties’ terms of sale.
However, “[l]ack of knowledge, mistake or misunderstanding, will not toll
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the running of the statute.” Pocono [International] Raceway v. Pocono
Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983). Appellants’
dissatisfaction with the terms that they agreed to in the relevant documents
does not allow them to avoid the time bar set forth in the applicable statute
of limitations. Accordingly, we conclude that the trial court did not err in
entering summary judgment in favor of Appellee Engel on these claims in
the property sale action.
With respect to Appellants’ claims against Appellee attorneys, we note
that the trial court found that Appellants did properly invoke the discovery
rule to allow their action to proceed as there was no “triggering event [for
Appellants] to question [Appellee attorneys’] legal advice prior to notice of
the lease in 2010.” Order, 4/21/15, at 1. We observe that this Court has
held that “the trigger for the accrual of a legal malpractice action, for statute
of limitations purposes, is not the realization of actual loss, but the
occurrence of a breach of duty.” Ferretti, 935 A.2d at 572.
While the trial court initially denied Appellee attorneys’ claim that
Appellants’ action was barred by the statute of limitations, it subsequently
granted Appellee attorneys’ motion for summary judgment finding that
Appellants failed to show Appellee attorneys breached a duty to Appellants.
We note that the parties disagree on whether Appellee attorneys
represented all nine siblings in the sale of the property or limited their role
to drafting the relevant documents for Appellee Engel.
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Appellants’ malpractice claim hinges on their assertion that Appellee
attorneys gave them incorrect legal advice to give Appellee Engel a majority
share of the mineral rights to establish control. However, the trial court
emphasized that Atty. Klementovich, who is also a licensed legal
practitioner, played a significant role in fashioning the terms of the sales
agreement at the family meeting, revising the sales agreements between the
parties, and negotiating on behalf of the Appellant Siblings, who never
sought specific legal advice from Appellee attorneys. With respect to the
legal advice that Appellants found improper, the trial court noted that
Appellee Atty. Roman communicated this information to Atty. Klementovich,
not Appellants. We agree with the trial court’s finding that Atty. Roman did
not owe any duty to Atty. Klementovich who was not a client but a fellow
attorney with the training, education, and ability to research the issue and
form a conclusion. See Hess v. Fox Rothschild, LLP, 925 A.2d 798, 806
(Pa. Super. 2007) (“[t]o maintain a claim of legal malpractice based on
negligence, a plaintiff must show an attorney-client or analogous
professional relationship with the defendant-attorney”). As a result, we find
the trial court did not err in granting summary judgment in favor of Appellee
attorneys.5
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5
In granting summary judgment, the trial court also found that Appellants’
claims must fail as the fact that any harm that resulted from Appellee
attorneys’ advice is mere speculation as there is no reasonable basis upon
(Footnote Continued Next Page)
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For the foregoing reasons, we affirm the trial court’s orders filed in
both docketed cases and the resulting three appeals.
Orders affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2016
_______________________
(Footnote Continued)
which to award damages for the recovery of royalties. There are no entities
seeking to extract any minerals or natural gas on this property.
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