Meksin, M. v. Glassman, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK MEKSIN AND DJ : IN THE SUPERIOR COURT OF
TRANSPORTATION, LLC : PENNSYLVANIA
:
Appellants, :
:
:
v. :
:
: No. 1174 EDA 2018
DAVID JAY GLASSMAN AND :
THEODORE SIMON :
Appeal from the Order Entered, March 8, 2018,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): 171002666.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 21, 2019
Mark Meksin and DJ Transportation, LLC (collectively “Meksin”) appeal
from the trial court’s orders sustaining preliminary objections and dismissing
the amended complaint he filed against his former lawyers, David Jay
Glassman and Theodore Simon. In the complaint, Meksin alleged breach of
contract, deceit, unjust enrichment, and violation of the Unfair Trade Practices
and Consumer Protection Law. Upon review, we affirm.
The trial court set forth the well plead facts from Meksin’s amended
complaint as follows:
On December 15, 2015, Appellant Mark Meskin was served with a
subpoena by federal agents that compelled his testimony before
a federal grand jury impaneled in Philadelphia on January 6, 2016.
On December 15, 2015, Appellant DJ Transportation was served
with a subpoena by federal agents that compelled their production
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* Former Justice specially assigned to the Superior Court.
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of documents before the same federal grand jury. In response to
this, Appellants began to look for counsel to advise and represent
them in the forthcoming grand jury matters. Appellants contacted
the Law Office of David Jay Glassman, located at 1500 Market
Street, 12th Floor East Tower, Philadelphia, Pennsylvania. On
December 22, 2015, Appellee David Glassman sent an email to
Appellants quoting his fee of $10,000 to address the subpoenas.
Appellants wired Mr. Glassman $10,000 and he represented them
in a meeting with a federal agent on January 8, 2016. On January
12, 2016, Appellants again met with Mr. Glassman, and he
verbally requested another $25,000 to continue representation.
On February 5, 2016, Mr. Glassman sent Appellants an email
stating that, ‘the Govt. has concluded that you are not their
primary target and has agreed to allow you to cooperate.’
Thereafter, Appellants ended their relationship with the Law Office
of David Jay Glassman by email on February 9, 2016. Appellants
demanded a refund of their payment of $25,000 to Appellee David
Glassman, less any reasonable amount for the value of the
services he provided. Appellee suggested said refund would only
amount to $7,000, asserting that he is entitled to $28,000 for the
services rendered for the two subpoenas.
The same day, February 8, 2017, Appellants retained Appellee
Theodore Simon to continue providing advice and representation
in regards to the two subpoenas. Appellee Theodore Simon
requested $25,000 to begin investigating, reviewing, evaluating
and advising. Five weeks later, Mr. Simon requested an additional
payment of $20,000 to continue representation, which the
Appellants paid. Within another week, Mr. Simon determined that
he would be unable to adequately represent Appellants without
them also hiring another attorney with the requisite expertise,
Richard Plewacki. Appellants paid Mr. Plewacki $5,000 for his
additional services. Having never been charged with any crime
relating to the federal investigation, Appellants ended their
relation with Appellee Theodore Simon on April 27, 2016.
Appellants dispute the amount Mr. Simon requested and was paid
for his services.
On October 20, 2017, Appellants filed a complaint against
Appellees David Glassman and Theodore Simon, followed by an
amended complaint on November 27, 2017. In the amended
complaint, Appellants allege contract rescission, deceit, unjust
enrichment and a violation of the Unfair Trade Practices and
Consumer Protection Law (UTPCPL), 73 Pa.C.S. §§ 201-1-209-6.
Appellees responded and filed preliminary objections, to which the
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Appellants answered. On March 8, 2018, upon review of these
preliminary objections and responses, the Honorable Sean F.
Kennedy entered an Order sustaining Appellees’ preliminary
objections, and dismissing Appellant’s amended complaint.
Trial Court Opinion, 8/15/18, at 1-3.1 Meksin timely appealed. Both Meskin
and the trial court complied with Pa.R.A.P. 1925.
On appeal, Meksin raises the following issues: 2
A. Whether the trial court abused its discretion in sustaining
Glassman and Simon’s preliminary objections?
B. Whether the trial court abused its discretion and committed an
error of law in concluding that Meksin’s complaint failed to state
sufficient facts and was vague?
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1To clarify, the trial court entered two separate orders, one for Glassman and
one for Simon.
2 Initially, we note that Meksin has failed to conform to several rules governing
appeals to this Court. First, neither Meksin’s statement of errors complained
of on appeal nor his statement of questions involved are sufficiently specific
contrary to Pa.R.A.P. 1925(b) and 2116. Instead, his issues are framed in a
very broad and general fashion. In particular, Meksin does not identify what
causes of action the trial court erroneously determined that he failed to state
a claim or failed to state with sufficient specificity.
Additionally, Meksin has not complied with the briefing requirements
under Pa.R.A.P. 2116. Meksin failed to set forth a meaningful and developed
argument or analysis in his brief. In support of his first issue, Meksin merely
recites the standard of review and legal principles relating to preliminary
objections in the nature of a demurrer, then summarily concludes that the
trial court erroneously sustained Glassman and Simon’s preliminary
objections. In support of his second issue, Meksin again merely recites legal
principles relating to each cause of action, but fails to reference the allegations
contained in his complaint that support each applicable cause of action or
demonstrate how the allegations are sufficiently specific. He further conflates
the issues pertaining to Glassman and Simon, as well as the different causes
of action, without separating his arguments in a logical manner. For these
reasons, we could dismiss Meksin’s appeal pursuant to Pa.R.A.P. 2101.
However, we decline to do so.
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See Meksin’s Brief at 5.
On appeal, Meksin argues that Glassman and Simon’s preliminary
objections were erroneously sustained. In his amended complaint, he alleged
causes of action for breach of contract, deceit, unjust enrichment, and
violations of Unfair Trade Practices and Consumer Protection Law, and did so
in a manner sufficient to overcome the initial stage of litigation. Meksin’s Brief
22-23. Thus, we must examine the allegations contained in Meksin’s amended
complaint within the context of each cause of action. A review of the
allegations shows that Meksin did not plead sufficient facts to establish the
causes of action set forth in his amended complaint.
Our review of a challenge to a trial court's decision on preliminary
objections is guided by the following:
[o]ur standard of review of an order of the trial court overruling
or granting preliminary objections is to determine whether the
trial court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases in
which it is clear and free from doubt that the pleader will be unable
to prove facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be sustained, it
should be resolved in favor of overruling the preliminary
objections.
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Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation
omitted).
We first consider Meksin’s breach of contract claim asserted against
Glassman. The trial court concluded that the allegations against Glassman
sounded in professional negligence rather than contract, and as such, Meksin
was required under Pa.R.C.P. 1043.2 to file a certificate of merit. Because
Meksin failed to do so, the trial court dismissed this claim.3 We agree.
Under Pennsylvania law, a client may bring both a contract action and a
tort action against a professional. To establish a breach of duty in a
professional negligence action, a plaintiff must show that the defendant's
conduct fell below the relevant standard of care applicable to the rendition of
the professional services at issue. Merlini v. Gallitzin Water Auth., 934
A.2d 100, 105 (Pa. Super. 2007). In most cases, this determination requires
expert testimony because the negligence of a professional encompasses
matters not within the ordinary knowledge and experience of laypersons. Id.In such cases, a certificate of merit must be filed. Pa.R.C.P. 1042.3. Where
a certificate of merit has not been filled to support claims of professional
negligence, the court may dismiss those claims. See Zokaites Contracting
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3 We note that the order dismissing the complaint against Glassman was silent
as to whether it was with or without prejudice. Generally, if the pleading can
be cured by an amendment, a court “must give the pleader an opportunity to
file an amended complaint.” Framlau Corp. v. County of Delaware, 299
A.2d 335 (Pa. Super. 1972). Arguably, Meksin could have filed an amended
complaint with a negligence claim, but for the statute of limitations and/or his
ability to obtain a certificate of merit.
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Inc. v. Trant Corp., 968 A.2d 1282, 1287 (Pa. Super. 2009). Otherwise, a
typical breach of contract action involves (1) the existence of a contract, (2)
a breach of a duty imposed by the contract, and (3) damages. J.F. Walker
Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269 (Pa. Super. 2002).
In a breach of contract action against a professional, the professional's liability
must be based upon the terms of the contract. Fiorentino v. Rapoport, 693
A.2d 208, 213 (Pa. Super. 1997).
Although Meksin framed his claim as one for breach of contract seeking
rescission, to determine whether the trial court erred, we must consider the
true nature of Meksin’s allegations to ensure that the mandates of Pa.R.C.P.
1042.3 are not circumvented. Based upon our review of Meksin’s amended
complaint, we conclude that the allegations implicate Glassman’s overall
exercise of care and professional judgment rather than compliance with the
terms of his agreement to provide legal services.
After paying the initial fee of $10,000, Meksin alleged that he “again
met with [Glassman], and [Glassman] advised [Meksin] that the government
was prosecuting him and orally demanded another $20,000 from [Meksin] for
the same services [Meksin] had already previously paid $10,000 to
[Glassman]”. He further alleged that Meksin and Glassman attended a
meeting with the government during which Glassman “was distracted by his
cell phone”. During meetings with Meksin, Glassman “appeared unprepared”,
and “gave the impression to have not looked at any documents gathered by
[Meksin] in response to the subpoenas . . . .” or have met personally with the
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government representative. Finally, Meksin claimed that Glassman “led [him]
to believe that [he] had already been prosecuted by the government,” but
then subsequently informed Meksin that he was not the primary target and
that the government would allow Meksin to cooperate.
These allegations focus on the manner in which Glassman conducted
himself as an attorney: his communication with his clients, the advice given
to his clients, the diligence in preparing to represent the client in a matter,
and appropriateness of fees charged. Proof of these averments would require
Meksin to proffer expert testimony to establish that Glassman’s conduct fell
below the applicable standard of care in providing legal services to Meksin.
Consequently, Meksin was required to file a certificate of merit as required
under Pa.R.C.P. 1042.3.
We next address Meksin’s claim for unjust enrichment asserted against
both Glassman and Simon. 4 The trial court concluded that Meksin failed to
establish a claim for unjust enrichment because Glassman and Simon had
contracts with Meksin. We agree.
Regarding claims for unjust enrichment, this Court has held that:
When a person receives a benefit from another, and it would be
unconscionable for the recipient to retain that benefit, the doctrine
of unjust enrichment requires the recipient to make restitution.
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4 After Meksin cites legal principles pertaining to unjust enrichment, Meksin
references the professional rules of conduct regarding fees, billing and
communication. Brief at 24-25. However, it is unclear to the Court how this
relates to this issue. We, therefore, do not address those rules.
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This equitable doctrine imposes on the recipient an obligation in
the nature of quasi contract.
Mayers-Macomber Engineers v. M.L.S. Constr. Corp., 414 A.2d 357, 360
(Pa. Super. 1979) (citations omitted). “A party may not recover for unjust
enrichment under a quasi-contract theory when an express contract speaks
to the same matter because the express contract precludes any implied-in-
law contract.” Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999).
“[I]t has long been held in this Commonwealth that the doctrine of unjust
enrichment is inapplicable when the relationship between parties is founded
upon a written agreement or express contract, regardless of how harsh the
provisions of such contracts may seem in the light of subsequent happenings.”
Wilson Area Sch. Dist. v. Skepton, 895 A.2d 1250, 1254 (Pa. 2006)
(internal quotations omitted).
Simon had a detailed, written fee agreement with Meksin, which
provided that, in exchange for the stated fees, he would provide legal services
to Meksin. After that fee was drawn down, Simon asked for an additional fee
to continue representation. This fee was also covered by Simon’s fee
agreement.
Glassman, by email, agreed to provide legal services relating to the
grand jury subpoenas upon receipt of the $10,000 fee. He also requested
additional funds to continue providing legal services to Meksin, which Meksin
paid. Thus, because Meksin’s transactions with Simon and Glassman were
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governed by the parties’ express fee arrangements, he cannot establish a
cause of action for unjust enrichment.
Moreover, the principles underlying unjust enrichment are not present
in this matter. A cause of action for unjust enrichment may arise only when
a transaction of the parties not otherwise governed by an express contract
confers a benefit on the defendant to the plaintiff’s detriment without
any corresponding exchange of value. Mitchell, 729 A.2d at 1203-04(emphasis added). Here, Meksin did not confer a benefit upon Glassman or
Simon which they unjustly retained. Rather, the attorney’s fees which Meksin
paid to them were in exchange for representation in the federal criminal
investigation. Meksin’s allegation that Simon and Glassman’s fees were
“grossly excessive” does not transform his claim into one for unjust
enrichment.
We next consider Meksin’s claim for deceit asserted against Simon.
Meksin’s Brief at 28. The trial court concluded that Meskin failed to plead facts
to establish the requisite elements of deceit. We agree.
Deceit is the common law tort of fraud or misrepresentation. In
Pennsylvania, a plaintiff seeking recovery for fraud must plead the following
elements: 1) a misrepresentation; 2) a misrepresentation which is material
to the transaction at hand; 3) an intent to induce reliance; 4) justifiable
reliance; and 5) damage. Kit v. Mitchell, 771 A.2d 814, 819 (Pa. Super.
2001). Fraud “consists of anything calculated to deceive whether by single
act or combination, or by suppression of truth, or suggestion of what is false
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whether it be by direct falsehood or by innuendo, by speech or silence, word
of mouth, or look or gesture.” Delahanty v. First Pennsylvania Bank, N.A.,
464 A.2d 1243, 1251 (Pa. Super. 1983) (citing Frowen v. Blank, 425 A.2d
412, 415 (Pa. 1981)). Moreover, fraud must be averred with particularity and
must be demonstrated by specific facts and not merely subterfuge. Pa. R.C.P.
1019 (b); Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1072 (Pa. Super.
2003).
Fundamental to a cause of action for fraud is the making of a material
misrepresentation. Here, Meksin failed to allege that Simon made any
misrepresentation. As the trial court observed,
Meksin only alleges that a fee agreement existed between him and
[Simon], and that [Meksin] misunderstood the terms of the
agreement. The express terms of the fee agreement outline
payments for a non-refundable retainer, payment of attorneys’
fees on an hourly basis, and replenishment of funds to cover
additional legal services.
Trial Court Opinion, 8/15/18, at 6. Additionally, although Meksin alleged that
he retained Simon based upon his biography advertised on the Super Lawyer
Website, he did not allege that any of the advertisement was misrepresented.
Lastly, we address Meksin’s claim for violation of the consumer
protection laws asserted against Glassman. Meksin’s Brief at 29. The trial
court dismissed this claim against Glassman. We agree.
The UTPCPL creates a private right of action for “[a]ny person who
purchases or leases goods or services primarily for personal, family[,] or
household purposes and thereby suffers any ascertainable loss of money or
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property, real or personal, as a result of the use or employment by any person
of a method, act[,] or practice declared unlawful by section 3[t] of [the] act
....” 73 P.S. § 201–9.2(a). In 2007, however, the Pennsylvania Supreme
Court found the UTPCPL inapplicable to the legal profession. Beyers v.
Richmond, 937 A.2d 1082 (Pa. 2007). In Beyers, the Court held that the
Supreme Court has the exclusive authority to regulate the conduct of
attorneys, and that the General Assembly has no authority under the
Pennsylvania Constitution to regulate the conduct of lawyers or the practice
of law. Id. at 668. The Court found that any application of the UTPCPL that
effectively regulates the practice of law violates the separation of powers and
encroaches on the Court’s exclusive power to regulate the legal profession.
Id. In exercising its constitutional authority, the Supreme Court “adopted the
Rules of Professional Conduct and the Rules of Disciplinary Enforcement, which
govern the conduct and discipline of attorneys.” Commonwealth v. Stern,
701 A.2d 568, 571 (Pa. 1997). In particular, the Rules of Professional Conduct
regulate a lawyer’s conduct relating to fees. See Pa.R.P.C. 1.5.5
The allegations which Meksin set forth in his amended complaint solely
relate to the provision of legal services by Glassman and the fees charged. We
therefore conclude, based upon the foregoing, that Meksin failed to state a
cause of action under the UTPCPL.
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5 We also note that the Philadelphia Bar Association has a fee disputes
committee where Meskin could have challenged the fees of his attorneys.
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For the reasons stated above, we conclude that the trial did not abuse
its discretion or commit an error of law in sustaining Glassman or Simon’s
preliminary objections. The trial court therefore properly dismissed the
amended complaint.6
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/19
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6 Because we have concluded that the trial properly dismissed Meksin’s
complaint, we need not address the issue of whether his allegations were
sufficiently specific.
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