Cruickshank-Wallace, B. v. CNA Financial Corp.
2403 EDA 2016
| Pa. Super. Ct. | Sep 25, 2017Background
- Wife (Bonnie Cruickshank-Wallace) lost to Mercantile County Bank on fraudulent transfer claims; she then sued Mercantile for abuse of process and lost.
- Wife sued her trial counsel Klehr for legal malpractice and lost on summary judgment; Klehr obtained a counterclaim judgment for unpaid fees.
- Wife retained Egan (and Egan retained Jokelson as an expert) in the malpractice suit against Klehr; summary judgment was entered for Klehr; multiple counsel changes and appeals followed.
- Husband and Wife (pro se) filed two subsequent suits: one against Egan and Jokelson (2013-11158) alleging malpractice in the Klehr matter; the other against Tupitza and three insurers (2013-10242) alleging conspiracy and malpractice tied to Tupitza’s failure to file a Pa.R.A.P. 1925(b) statement.
- Trial court granted summary judgment for defendants in both suits on the ground that plaintiffs needed expert proof of the applicable standard of care and causation; appeals consolidated.
- The Superior Court affirmed, holding plaintiffs could not prove the required "case within a case" or attorney breach without expert testimony and that their pleadings did not state viable non‑malpractice torts or justify amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs waived appellate issues by an allegedly vague Pa.R.A.P. 1925(b) statement | Wallaces argue the 1925(b) statement should not be deemed waived | Defendants contend the 1925(b) was impermissibly vague and issues were waived | Court declined to find waiver and proceeded to the merits |
| Whether expert testimony was required to prove legal malpractice and causation ("case within a case") | Wallaces contend no expert required; malpractice or intentional tort is obvious | Defendants argue expert testimony is essential to prove standard of care and that plaintiffs bear burden of proving they would have prevailed absent malpractice | Court held expert testimony was required; summary judgment proper because plaintiffs failed to present expert proof |
| Whether claims were really intentional torts or non‑professional torts (avoiding malpractice rules) | Wallaces recharacterize claims as intentional misrepresentation, promissory estoppel, or conspiracy to avoid malpractice proof | Defendants assert pleadings are legal malpractice claims and plaintiffs failed to plead material facts for alternative torts | Court found pleadings insufficiently particularized; claims are malpractice in substance and do not avoid expert requirement |
| Whether plaintiffs should be permitted to amend complaints to cure deficiencies | Wallaces sought leave to amend and argued amendment could save claims | Defendants opposed; argued amendment would not cure the need for expert proof or add required facts | Court denied leave to amend because plaintiffs did not explain how amendment could cure the fundamental lack of expert proof or state necessary material facts |
Key Cases Cited
- Rizzo v. Haines, 555 A.2d 58 (Pa. 1989) (expert testimony is generally essential to prove professional standard of care unless negligence is obvious)
- Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014) (elements of legal malpractice include proof of underlying claim and attorney negligence — the "case within a case")
- Vazquez v. CHS Prof'l Practice, P.C., 39 A.3d 395 (Pa. Super. 2012) (plaintiff's failure to provide expert testimony fatal when standard of care is not within common knowledge)
- Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634 (Pa. Super. 2016) (malpractice plaintiff must show by preponderance they would have recovered in the underlying action)
- Smith v. Griffiths, 476 A.2d 22 (Pa. Super. 1984) (discusses absolute privilege and duties in context of litigation; not a holding on expert necessity)
- Krauss v. Claar, 879 A.2d 302 (Pa. Super. 2005) (distinguishing professional liability claims from non‑professional torts)
- Smith v. Yohe, 194 A.2d 167 (Pa. 1963) (res ipsa loquitur and doctrine for obvious negligence)
- Hill v. Ofalt, 85 A.3d 540 (Pa. Super. 2014) (leave to amend should be granted when there is a reasonable possibility amendment will succeed)