Silvagni, P. v. Shorr, J. , 113 A.3d 810 ( 2015 )

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2015 Pa. Super. 62
PHILLIP J. SILVAGNI IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JEFFREY S. SHORR, ESQUIRE, JOHN A.
LORD, ESQUIRE, DASHEVSKY,
HORWITZ, KUHN & NOVELLO, P.C.,
SALTZ, MONGELUZZI, BARRETT &
BENDESKY, P.C.
Appellees No. 2566 EDA 2013
Appeal from the Order August 6, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1386
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
OPINION BY LAZARUS, J.: FILED MARCH 27, 2015
Phillip J. Silvagni appeals from the order entered in the Court of
Common Pleas of Philadelphia County granting summary judgment in favor
of Jeffrey S. Shorr, Esquire, and the law firm of Dashevsky, Horwitz, Kuhn &
Novello, P.C. (hereinafter “Defendants”). We affirm.
On October 27, 2011, Silvagni filed a complaint against Defendants
alleging legal malpractice in the handling of his workers’ compensation
claim.1 In the legal malpractice action, Silvagni claimed Defendants gave
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1
While in the employ of Jersey Shore Steel Company, Silvagni was injured
when an overhead crane fell on him. He retained Defendants to represent
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him incorrect legal advice that ultimately led to a compromise and release.
Silvagni claims that but for that incorrect legal advice, he would not have
agreed to the terms of the settlement.
Defendants filed preliminary objections, which the trial court denied.
On February 29, 2012, Silvagni filed a second amended complaint. On May
17, 2013, the parties entered into a stipulation to dismiss Counts I and III of
the complaint (Professional Negligence/Malpractice and Breach of Fiduciary
Duty). On June 6, 2013 the trial court approved the stipulation, and
Silvagni’s complaint continued with the remaining Count II (Breach of
Contract/Covenant of Good Faith and Fair Dealing). On May 31, 2013,
Defendants filed a motion for summary judgment, which the Honorable John
M. Younge granted. Thereafter, Silvagni filed this appeal, raising two issues:
1. Did the trial court commit an error of law in its grant of
summary judgment in its application of the Muhammad2
doctrine’s general prohibition against “settling and suing”
when the necessary diminished underlying settlement was
procured by underlying Defendants’ legal and not judgment
errors and otherwise, likewise not “voluntarily” entered?
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(Footnote Continued)
him both in the Workers’ Compensation action and in a separate third-party
action against the crane manufacturer and other companies. The third-party
action was referred to the law firm of Saltz, Mongeluzzi, Barrett & Bendesky,
P.C. (“the Saltz Firm”). That action was settled on March 29, 2009, a few
months after Silvagni signed the Compromise and Release in the Workers’
Compensation action.
2
Muhammad v. Strassburger, McKenna, Messer, Shilobod and
Gutnick, 587 A.2d 1346 (Pa. 1991).
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2. Did the trial court commit an error of law in its grant of
summary judgment per the Muhammad doctrine when that
doctrine had previously been adjudicated upon preliminary
objections as inapplicable and no material facts had changed
in the interim?
Because Silvagni’s claims are barred under the doctrine espoused in
Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick,
587 A.2d 1346 (Pa. 1991), we agree with Judge Younge’s order granting
summary judgment in Defendants’ favor.
Our standard of review of an order granting summary
judgment requires us to determine whether the trial court
abused its discretion or committed an error of law[,] and our
scope of review is plenary. We view the record in the light most
favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered.
***
Where the non-moving party bears the burden of proof on an
issue, he may not merely rely on his pleadings or answers in
order to survive summary judgment. Further, failure of a
nonmoving party to adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law.
Sokolsky v. Eidelman, 93 A.3d 858, 861–62 (Pa. Super. 2014) (quotation
marks and citations omitted).
In Muhammad, plaintiffs filed a legal malpractice action against
defendant law firm as a result of defendant’s representation of plaintiffs in a
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medical malpractice lawsuit following the death of plaintiffs' child.
Defendant law firm negotiated a settlement of the medical malpractice case.
Plaintiffs verbally accepted the settlement offer. Thereafter, plaintiffs
changed their minds about the settlement before signing a written accord.
Defendant law firm filed a Rule to Show Cause why the settlement
agreement should not be enforced. After an evidentiary hearing, the trial
court enforced the agreement. The court ordered the defendants in the
medical malpractice case to pay the settlement funds and instructed the
prothonotary to mark the case settled. Plaintiffs hired new counsel,
appealed the order, and this Court affirmed. Muhammad v. Childrens
Hospital of Pittsburgh, 487 A.2d 443 (Pa. Super. 1984) (unpublished
memorandum opinion).
Thereafter, plaintiffs filed a legal malpractice case against the law firm
that had negotiated the medical-malpractice settlement. The legal
malpractice case was dismissed, and our Supreme Court affirmed that
dismissal, stating:
This case must be resolved in light of our longstanding public
policy which encourages settlements. Simply stated, we will not
permit a suit to be filed by a dissatisfied plaintiff against
his attorney following a settlement to which that plaintiff
agreed, unless that plaintiff can show he was fraudulently
induced to settle the original action. An action should not lie
against an attorney for malpractice based on negligence and/or
contract principles when that client has agreed to a settlement.
Rather, only cases of fraud should be actionable.
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Muhammad, 587 A.2d at 1348 (emphasis added). The Court further
stated:
[W]e foreclose the ability of dissatisfied litigants to agree to a
settlement and then file suit against their attorneys in the hope
that they will recover additional monies. To permit otherwise
results in unfairness to the attorneys who relied on their client's
assent and unfairness 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 settlement 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.
Id. at 1351.
Silvagni claims that the trial court improperly applied the Muhammad
doctrine because he did not enter into the settlement voluntarily. Silvagni’s
claim is not supported in the record.
Silvagni executed a Compromise and Release Agreement on December
16, 2008, which included the following certification: “I have been
represented by an attorney of my own choosing during this case. My
attorney has explained to me the content of this agreement and the effects
upon my rights.” See Compromise and Release Agreement by Stipulation
Pursuant to Section 449 of the Workers’ Compensation Act, 12/16/08, ¶ 4.
Further, prior to approving the settlement, Judge Karl Baldys presided
over a colloquy conducted by Silvagni’s attorney, Jeffrey S. Shorr, Esq.:
Q: Mr. Silvagni, you were employed by Jersey Shore Steel as of
September 30, 2005, is that correct?
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A: Yes.
Q: And on that date you suffered multiple injuries as a result of
a crane collapse, is that correct?
A: Yes.
Q: And you received medical treatment for the injuries that you
had, including fractures and injuries to you neck and back, is
that correct?
A: Yes.
Q: And you continue to receive treatment for those problems, is
that correct?
A: Yes.
Q: Now since the work injury you had received $358.00 a week
in worker’s compensation benefits, is that correct?
A: Yes.
Q: And you have before you the Compromise and Release
Agreement, which is the settlement agreement, is that correct?
A: Yes, I do.
Q: Now I’m going to ask you to go to the “Employee’s
Certification” page. Is that your signature above the “Employee’
Signature” line?
A: Yes, it is.
Q: And is that your initials in the first part of Paragraph No.4?
A: Yes, it is.
Q: Before today’s hearing did you have an opportunity to read
this document?
A: Yes, I have.
Q: Did I explain each provision of the agreement to you?
A: Yes, you did.
Q: Do you understand each provision of the agreement?
A: Yes.
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Q: Do you understand that if Judge Baldys approves this
agreement you will receive a lump sum of $60,000.00, from
which a 20 percent attorney’s fee will be deducted and paid
directly to the firm that I work for, do you understand that?
A: Yes.
Q: And do you understand that you will receive the sum of
$48,000.00?
A: Yes.
Q: Do you understand that in return for that you will not
be entitled to any additional wage benefits, medical
benefits, specific loss benefits, or any other benefits
under the Workers’ Compensation Act for your work
injury of September 30, 2005?
A: Yes.
Q: Do you understand that if your condition worsens and you
cannot work, or you need additional medical treatment, that the
insurance company or Jersey Shore Steel Company will not be
responsible to pay for that wage loss or medical treatment?
A: Yes.
Q: Do you understand that it will be your own personal
responsibility to pay for any additional medical treatment after
today?
A: Yes.
Q: Do you understand that if you didn’t want to settle this case
you would have the right to have Judge Baldys decide the case,
in which case if he found in your favor you would continue to
receive your weekly wage benefits as well as your medical
expenses paid for from the insurance company and the
Employer?
A: Yes.
Q: Do you understand that if you didn’t resolve this matter
Judge Baldys could decide the case, and if he decided against
you, you would continue to have your medical expenses paid
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until some Judge terminates those benefits, do you understand
that?
A: Yes.
Q: By entering into this agreement you’re giving up your right to
have Judge Baldys decide the case, do you understand that?
A: Yes.
Q: Are you currently under the influence of any types of
substances that would affect your ability to understand what
you’re doing today?
A: No.
Q: Has anybody promised you anything other than what is set
forth in the agreement in order to encourage you to sign the
agreement?
A: No.
Q: You are doing this of your own free will?
A: Yes.
Q: Have you been satisfied with my firm’s representation of your
interests in this matter?
A: Yes.
Q: Did I explain to you that should Judge Baldys approve this
agreement he is going to circulate a Decision, from which you
would have twenty days to appeal that Decision?
A: Yes.
Q: Did I explain to you that you could choose to waive that
appeal, and what the consequences of waiving that appeal right
would be?
A: Yes.
Q: Do you wish to waive that appeal?
A: Yes.
N.T. Compromise and Release Hearing, 12/16/08, at 5-8 (emphasis added).
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Counsel for the Jersey Shore Steel Company, Silvagni’s employer,
cross-examined Silvagni with respect to the employer’s and insurance
company’s subrogation interest pertaining to the third-party lawsuit.
Silvagni affirmed that he understood the subrogation interests, that he
understood the effect the agreement had on his rights under the Workers’
Compensation Act, that he had no questions about it, and that he wanted
Judge Baldys to approve the agreement. Id. at 10-11.
Finally, Judge Baldys asked Silvagni if he felt he “had enough time to
think about this decision[,]” to which Silvagni replied, “Yes.” Judge Baldys
also stated: “Am I correct this was a case which had been mediated and
there was a prior mediation conference and quite a bit of negotiation?”
Silvagni answered in the affirmative to that question as well. Id. at 10.
In light of the foregoing, we find Silvagni’s claim fails. Silvagni’s
assertion that he would never have settled his worker’s compensation claim
had he understood that it would terminate his medical coverage and wage
benefits is contradicted by the record. Essentially, Silvagni claims that the
legal advice he received, that an adverse workers’ compensation decision
could adversely affect his third-party claim, or the “interplay” between the
workers’ compensation and third-party matters, was negligent, and this
caused an unknowing and involuntary settlement in the workers’
compensation matter. Silvagni claims Defendant Schorr, who represented
him in the workers’ compensation matter, advised him that as a result of his
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catastrophic injuries, the third-party action was “of such great value” that
“the natural progression of the case” is to settle the workers’ compensation
matter “when there’s a third party case.” See Silvagni Deposition, 1/30/13,
at 147-48.
During the colloquy, however, Silvagni acknowledged, under oath, that
he understood that in return for the settlement he would no longer receive
medical benefits or any other benefits under the Workers’ Compensation Act.
N.T. Compromise and Release Hearing, supra at 6-7. Counsel engaged
Silvagni in a thorough colloquy, advising him of the consequences of the
settlement. The colloquy included questions from opposing counsel as well
as Judge Baldys. There is no indication that Silvagni’s assent to the
Compromise and Release Agreement was involuntary. Silvagni is thus
barred from filing an action in negligence against Defendants. See
Muhammad, supra (when client has signed off on final settlement
agreement, absent fraud, client may not later sue his attorney because he is
dissatisfied with settlement amount). See also Banks v. Jerome Taylor
& Assoc., 700 A.2d 1329, 1332 (Pa. Super. 1997) (where dissatisfied
litigant merely wishes to second guess decision to settle due to speculation
he may have been able to “get a better deal,” Muhammad rule applies to
bar litigant from suing counsel for negligence). Compare Martos v.
Concilio, 629 A.2d 1037 (Pa. Super. 1993) (client displeased with results of
settlement agreement could not sue attorney for malpractice absent
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allegations of fraudulent inducement) with McMahon v. Shea, 688 A.2d
1179 (Pa. 1997) (holding Muhammad rule did not apply to divorce
settlement where counsel allegedly failed to advise client of legal
ramification of settlement) and Collas v. Garnick, 624 A.2d 117 (Pa.
Super. 1993) (counsel who negligently advised personal injury clients that
signing general release did not bar future lawsuits against other possible
tortfeasors could be liable in negligence).
Unless Silvagni had specifically pled, and could prove, Defendants
fraudulently induced him into signing the Compromise and Release
Agreement,3 or he could prove that Defendants failed to explain the effect of
that settlement, or that the settlement was somehow legally deficient,
Silvagni is barred from maintaining an action in negligence against
Defendants. Viewing the record in the light most favorable to Silvagni, and
resolving all doubts as to whether there exists a genuine issue of material
fact against Defendants as the moving party, we conclude that it is clear that
Defendants are entitled to judgment as a matter of law. We find no abuse
of discretion or error of law. Sokolsky, supra.
Next, Silvagni argues that the trial court committed an error of law in
granting summary judgment under the Muhammad doctrine when the trial
court had previously denied Defendants’ preliminary objections. This claim,
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3
Pa.R.C.P. 1019(b) states: “Averments of fraud or mistake shall be averred
with particularity.”
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too, is meritless. Preliminary objections were filed in January 2012, and
Judge Marc Bernstein overruled them in June 2012. Summary judgment
was granted by Judge Younge more than a year and a half later, after
Silvagni’s deposition. The motions differ in kind, and a judge ruling on a
later motion is not precluded from granting relief although another judge has
denied an earlier motion. See Goldey v. Trustees of Univ. of
Pennsylvania, 675 A.2d 264, 267 (Pa. 1996). See also Rosenfield v.
Pennsylvania Auto. Ins. Plan, 636 A.2d 1138 (Pa. Super. 1994) (when
reviewing preliminary objections, court looks to pleadings, but in considering
motion for summary judgment court weighs pleadings, depositions, answers
to interrogatories, admissions and affidavits; there is no reason to fail to
grant summary judgment if record warrants such action).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2015
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