Phillips, C. v. Weidenbaum, B.
Phillips, C. v. Weidenbaum, B. No. 2342 EDA 2016
| Pa. Super. Ct. | Apr 5, 2017Background
- Plaintiff Curtis C. Phillips, Jr. (pro se) sued his former criminal defense lawyer, Bradley Weidenbaum, for breach of contract, negligence (legal malpractice), and violations of the UTPCPL, seeking fees and punitive damages, after an unfavorable criminal conviction.
- Appellee filed preliminary objections (demurrer) alleging among other defects: failure to verify the complaint, failure to plead legally sufficient breach and negligence claims, UTPCPL inapplicability to legal services, and failure to support a fee award.
- Plaintiff filed a Certificate of Merit but did not timely file an amended, verified complaint after the court struck the unverified pleading and granted 30 days to amend.
- The trial court sustained most preliminary objections and struck the complaint for lack of verification; plaintiff did not timely amend and appealed the June 21, 2016 order.
- On appeal the Superior Court affirmed: it found the breach and negligence claims legally insufficient, held UTPCPL does not apply to the practice of law, and found waiver/failure to comply with verification rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract legal malpractice | Phillips: oral promises created enforceable contract terms and appellee breached those obligations despite a later written fee letter | Weidenbaum: the written fee agreement controls, contains only a best-efforts covenant, and plaintiff failed to plead specific contractual terms or how those terms were breached | Court: Complaint pleaded breach as arising from the written agreement and failed to plead essential terms or facts showing breach of professional standard; demurrer sustained |
| Negligence / criminal-malpractice (Bailey) | Phillips: need not have obtained post-trial relief before pleading; at most the court should have stayed malpractice claim pending resolution of criminal appeal | Weidenbaum: plaintiff failed to allege reckless/wanton conduct and causation (that but for counsel’s conduct plaintiff would have been acquitted) and appeal was pending | Court: Under Bailey plaintiff failed to plead the required elements (reckless/wanton conduct and but-for acquittal causation); dismissal proper; stay unnecessary because pleading was legally insufficient |
| UTPCPL claim | Phillips: fraudulent/deceptive retaining practices fall within UTPCPL coverage | Weidenbaum: UTPCPL does not apply to the practice of law | Court: Bound by Pennsylvania Supreme Court (Beyers) holding UTPCPL inapplicable to legal profession; claim fails (and argument waived for lack of authority) |
| Verification / procedural defects | Phillips: he signed the complaint and later filed an amended verification, so dismissal for lack of verification was improper | Weidenbaum: complaint was unverified as filed and Rule 1024 requires verification; dismissal and leave to amend were proper | Court: Complaint was unverified; trial court correctly struck it and gave 30 days to amend; plaintiff failed to timely amend; dismissal stands (also appellate waiver for unsupported arguments) |
Key Cases Cited
- Bailey v. Tucker, 621 A.2d 108 (Pa. 1993) (defines elements for criminal-defense malpractice, including reckless/wanton conduct and but-for causation, and addresses post-trial relief requirement)
- Beyers v. Richmond, 937 A.2d 1082 (Pa. 2007) (holds UTPCPL does not apply to the practice of law)
- Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565 (Pa. Super. 2007) (discusses malpractice claims sounding in tort and contract)
- CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053 (Pa. Super. 1999) (elements required for breach of contract claim)
- Krause v. Great Lakes Holdings, Inc., 563 A.2d 1182 (Pa. Super. 1989) (when oral agreements are binding vs. when parties intend contract only upon written memorialization)
- Richmond v. McHale, 35 A.3d 779 (Pa. Super. 2012) (standard of review for preliminary objections)