McMahon v. Shea

assertion that the court admitted appellant’s improperly merit. As confession and admissions be without appellant’s initial the court explained, heretofore determination corpus regarding proved whether the Commonwealth has delicti, by a of the evidence standard. judged preponderance that the victim’s Instantly, presented showing evidence was work, his arrival was secured he left for home when later, open front wide home some ten hours window was was Concurrently, appellant his rifles were missing. and rifles and sold them. This evidence possession likely perpe- that a had been wrong makes more than not the court’s through agency, accordingly, trated criminal into and admis- appellant’s admission evidence of confession However, jury proper. due to the erroneous sions judgment we must of sentence charge, appellant’s vacate remand for new trial. of sentence vacated. New trial ordered. Juris-

Judgment relinquished. diction McMAHON, Appellant,

Robert M. Shea, SHEA, Esquire, Phyllis John G. McCormick Dinney, Esquire Esquire, Michael S. Shea Shea, Partnership, Appellees. & A Pennsylvania.

Argued Dec. 1994. 23, 1995.

Filed Feb. Reargument April Denied Fullem, Jr., appellant. for Joseph Philadelphia, W. T. Ryan, Philadelphia, appellees.

Patrick CAVANAUGH, ROWLEY, President Judge, Before POPOVICH, JOHNSON, WIEAND, CIRILLO, SOLE, DEL SAYLOR, HUDOCK and JJ.

WIEAND, Judge:

If, or her signs agreement, before a client written his to the client about lawyer negligently correctly fails advise of law or of pertinent principles impact agreement the rights obligations, lawyer the client’s future and is the to the liability agreement immunized from client because the The was executed in of marital pending dispute? liability immune lawyer trial court was from held preliminary objec- under such and sustained circumstances complaint tions the nature of a demurrer to the client’s The client seeking damages legal malpractice. appealed. for review, remand further careful we reverse and for After proceedings. wife, from McMahon was his separated

When Robert him. law firm of and Shea advised represented Shea advice, to his McMahon entered Upon lawyer’s agreement week, half was his wife the sum of of which pay per $791.00 deemed child and the other half of which was deemed support alimony. weekly for termination of only provision these the time “the payments referring was a clause to when age twenty-one, emancipated child reached youngest Subsequently, last.” Mrs. whichever occurs college, finishes upon the Allegedly in divorce. complaint McMahon filed a Shea, agreement that the agreed McMahon advice Shea into the incorporated merged but not alimony for should in divorce. decree had divorce decree

Approximately two months after the entered, was McMahon was remarried. McMahon been Mrs. his to further lawyers obligation pay advised his Code, the Divorce alimony provisions was terminated requiring to terminate the order petition and a was filed however, court, The trial refused payment alimony. of such relief, courts and the Court affirmed. These grant had survived the decree parties’ agreement held that the required pay McMahon to ending marriage divorce alimony youngest twenty-one, until child became college. or finished See: McMahon McMa- emancipated hon, against lawyers, alleging

McMahon then filed an action his guilty failing that Shea and Shea had been for duty alimony advise him regarding pay the duration his under failing agree- the Divorce Code and for review explain pay ment and to him the duration of his agreement. under the He also contended that had settle- lawyers allowing property been incorporated merged ment to be but not prelimi- final decree of divorce. and Shea filed When Shea nary objections in the nature of a demurrer to McMahon’s that, held complaint, the trial court dismissed the action. It in voluntarily signed because McMahon had action, settlement of a he could have no cause pending action against lawyers. as true reviewing ruling, accept

In the trial court’s we inferences pleaded all facts which have been well and all whether, deducible therefrom. then determine reasonably We that no alleged, says certainty on the facts the law exists, If a doubt that doubt must be recovery possible. 308 Garnick, v. Collas 425 plaintiff.

resolved favor of the denied, (1993), allocatur 8, 117, 535 12, A.2d 119 Pa.Super. 624 P v. (1993); Nat’l & C Cos. 672, Kemper 636 Pa. A.2d 631 Smith, Taras 299, 372, (1992); 295, 374 419 615 A.2d Pa.Super. Cos., 884, 37, 42, 882, v. Wausau Ins. 412 602 A.2d denied, (1992). 657, allocatur 532 Pa. A.2d 1313 615 Garnick, 8, 117, supra, Collas v. A.2d 425 624 said: The which must order to state alleged elements be are: legal employment cause of action for “the malpractice duty; the failure of the of the or other basis for attorney ordinary and that attorney knowledge; exercise skill to the proximate damage such was the cause Ruder, v. 561, 567, Bank 402 Pa.Super plaintiff.” Liberty denied, 764-765, 637, allocatur 761, 528 Pa. 598 587 A.2d Litvin, Blumberg, (1991). v. McHugh 994 also: A.2d See (1990); Matusow 525 Pa. 1, 5, 1040, Young, & 574 A.2d 1042 Haines, (1989). 499, 58, A Rizzo v. 520 555 65 to be if he fails to lawyer will found or she skill and possess degree knowledge, and exercise normally care which would be exercised members similar circumstances. profession under same Cannon, P.C., 227, 232, Esquire, McPeake v. 381 Pa.Super. (1989). 439, 441 has a to inform lawyer 553 A.2d himself or herself of the manner which a proposed the client to inform the regard settlement affects client Client, ing consequences Attorney thereof. 7A C.J.S. Clemmons, v. Wade (1980), § citing 84 Misc.2d (1975). Snitoff, In re 53 Ill.2d N.Y.S.2d See also: denied, cert. v. Board 289 N.E.2d 428 Snitoff Assn., Bar Managers Chicago U.S. 93 S.Ct. 2292, 36 As one trial court has ob L.Ed.2d served, lawyer should exert his best efforts to insure has

decisions of his client are made after the client been informed of relevant considerations. Anton, (Wash.

Lang v. 40 D. & [Pa.Com.Pl.] C.3d 1983). 250, 262, Ziegelheim Apollo, See N.J. also: should clients (attorneys advise

309 skill, knowledge, to settlements with the same respect tasks.). they legal with which all other diligence pursue infallible, he or she lawyer expected is not to be Although to conduct that measure of research sufficient expected 7A C.J.S. at allow the client to make an informed decision. § lawyer adequately, 257. In order for a to advise a client which the obligated any he or she is to scrutinize contract execute, is to and thereafter must disclose to the client full import any possible client the the instrument 96, Id. at n. consequences might arise therefrom. Co., v. Paul Fire Marine Insurance 263 citing Ramp St. & DiFatta, (1972); La. 269 239 v. 364 So.2d So.2d Gill Kramer, v. (La.App.1978). Soderquist See also: O’Connor, 825 (La.App.1992); Wash.App. So.2d Bush v. (1990). moreover, lawyer, 791 P.2d 915 The must be familiar with well settled and the rules of law practice frequent application ordinary which are of Caton, business of the v. profession. George 93 N.M. 600 P.2d

Id., 12-14, at 624 A.2d at 119-120. provisions of the Divorce Code which establish

that the payment payee- shall terminate spouse’s remarriage lawyers practice are well known to who § provisions marital law. See: 23 Pa.C.S. 3706. These state a rule of of which the defendant-lawyers substantive law Moreover, this case should if have been aware. even lawyers provisions were unfamiliar with the of the Divorce Code, they had an to familiarize themselves with the obligation law before their advising sign legal agreement client containing language rights contrary which created to and If lawyers negli excess of those established statute. their client gently incorrectly advised about the duration him pay alimony the client’s or allowed to execute an required, more onerous than the substantive law would seem that client would have a cause of action for legal malpractice. held, however,

The trial court that a cause of action was barred the decision of a Court in panel Berschler, Miller Supreme Court in holding had extended the of the McKenna, Messer, Strassburger, Shilobod denied,

Gutnick, 541, cert. 526 Pa. 587 A.2d to circum L.Ed.2d 156 U.S. S.Ct. Superior similar to those the instant case. The stances a court of the instant case before reargument Court directed the be reviewed. might en banc so that Miller decision Muhammad, defendant-lawyers had represented the malpractice for parents asserting a claim medical who were which, death of their son. The had caused the allegedly, claim settle their for parents, following agreed to negotiations, $26,500.00. They subsequently sum of became dissatisfied the avoid their sought settlement and to amount their However, they court that were the trial held agreement. to them to agreement their and refused allow bound Thereafter, parents against filed an action withdraw. that contended lawyers legal malpractice. They their for recommending lawyers had been objections in preliminary The trial court sustained amount. parents’ complaint a to the the nature of demurrer subsequently the case reached dismissed the action. When Court, Court held that the trial court had that cause for failure to state a correctly complaint dismissed the The Court reviewed granted. action for which relief could be lawsuits and then principles which favored settlements of reasoned further follows: ability we foreclose the principles,

Mindful of these a then file litigants agree settlement and dissatisfied they in the will against attorneys hope their suit permit monies. To results recover additional otherwise attorneys who relied on their client’s unfairness to have litigants whose cases not assent and unfairness places unnecessarily been tried. an yet Additionally, system. taxed overly arduous burden on an Id., Therefore, A.2d at 1351. the Court 526 Pa. at held: a permit will a suit to be filed dissatisfied

[W]e following to which attorney a settlement plaintiff against his he was plaintiff unless that can show plaintiff agreed, original action. An action fraudulently induced settle should not lie based on against attorney malpractice has contract when that client and/or Rather, agreed to a settlement. cases of fraud should be actionable.

Id. at at 1348. Bersckler,

In Miller v. supra, panel expanded holding a against Muhammad to action legal malpractice dismiss to a client his lawyer negligently explain who had failed under Divorce had failed to advise rights Code who imposed the client that the written of settlement obligations imposed by more onerous him than those Miller, not about the complained statute. the client had judgment of to or about the paid lawyer’s amount com- recommending payment of such amount. His (1) rather, plaint, lawyer’s explain failure to law, terminat- obligation pay alimony under the the client’s man, ed if his with another the terms of wife cohabited an of duration than agreement imposed obligation greater result, a the client had executed required by statute. As agreement required paying alimony an him to continue another begun cohabiting even after his former wife had A that the majority panel language man. of the Miller held deciding used Muhammad was Supreme Court negligently a had failed enough lawyer broad to immunize who and the applicable legal principles to advise a client about agreement long agreement effect of a written so as the had pending litigation. been executed in settlement of axiomatic, however, judicial prece- It is that a decision dential “for an identical or similar case after- authority or of Black’s Law arising question wards a similar law.” (5th 1979). opinion in an Dictionary expressions ed. “General light must be considered in the of and cannot be dissevered case; actually from the facts of that what is decided and particular is the law to the facts of that controlling applicable particular case and while all other statements and conclusions

312 are con- they not great therein are entitled to consideration Pew, 411 A.2d In re Trust Estate trolling.” of Tyler, on Estate grounds, other overruled 148, 474 Pa. the Supreme which formed the basis for salutary policy applicable is not equally Court’s decision in Muhammad lie in the does not lawyer’s alleged negligence where the accepted an amount to be judgment regarding exercise of but, rather, claim, in the failure to in settlement of a paid advise the client about well established properly upon the impact agreement law of an substantive A about enter obligations person of the client. rights and contract, rely on the all should be entitled to agree, would of the terms lawyer regarding impact advice of his or her because the the result be different agreement. Should which are the agreement property rights is intended to settle think subject litigation? respect We not. With pending client, required he or she is counsel’s advise if a client about degree advising exercise the same care part pending of a which is Garnick, litigation. supra, See: Collas v. Kreithen,

A.2d 117. See also: White (1994) (client 121-22, may maintain mal attorney’s conduct before set practice action where tlement caused damage). Court in

The rule announced cases similar to those which caused involving is facts limited Thus, ruling. Muhammad has been held to be the Court’s consisted of controlling lawyer’s alleged negligence where the representing negotiating and in “advising [a client] Goodman v. him the terms of settlement sale.” [a] (1994). Kotzen, 71, 77-79, 250 647 A.2d Pa.Super. determinative where the Muhammad was also held to be amount of her merely expressed client dissatisfaction averred that conduct had lawyer’s marital award and property, “a deficient amount” marital caused her receive Spirer and other available relief. v. Freeland & 341, 344-46, Kronz, Pa.Super. Concilio, in 629 A.2d

Finally, Martos v. where the controlling was held to be failure “alleged of an had consisted lawyer’s alleged of the in negotiations client] adequately represent [the at 1038. These at 629 A.2d Id. agreement.” deficiency in the a perceived in the client situations which are judgment. or her professional exercise of his lawyer’s alleged similar. case are not The facts the instant involved the in this case defendant-lawyers negligence of the client about well established failure to advise client’s future agreement upon impact law and the obligations. otherwise, will not we Court directs

Unless the Muhammad, who careless blindly protect lawyers interpret rights their substantive incorrectly clients about ly advise to resolve is intended a which the effect of written v. Ber decision Miller dispute. Because the existing reaches a schler, supra, otherwise result, To do expressly it is overruled. contrary upon the advice rely to clients who must would do a disservice future involving entering agreements before lawyers of their practitioners to careful and conscientious obligations and also before the client fully to advise their clients who undertake complex, simple agreement, asked to execute an whether them, clients, against their or at least advise protect and who burdens more onerous provisions impose contractual law requires. than the substantive in fact is in this case were lawyers

Whether the complaint hold that the not now for us to decide. We summary granting judgment adequate to withstand the a in the nature of demur- objections response preliminary rer. further Jurisdic- proceedings.

Reversed and remanded for tion is not retained. SOLE, J., Statement. Concurring

DEL files J., in which CAVANAUGH, Dissenting Opinion files HUDOCK, CIRILLO, join. JJ. and POPOVICH SOLE, Judge, concurring. DEL join

I in its Majority interpretation Strassburger, in holding Court’s that case should be and this agree remanded to the trial court. sustaining is on of a appeal

This matter before us Order Having Objections Complaint. to the Plaintiffs preliminary not that I conclude that the Plaintiff has Complaint, reviewed plead upon granted. a cause of action which relief could paying is on fact he is The Plaintiffs claim based of a property to his former wife as a result alimony agreement, even she has remarried. basis of though claim, follows: Complaint, as contained in his as hereto, Mr. aware

33. At all relevant McMahon was times However, was re-marry. of the fact that his wife might not after advised until his wife remarried defendants his his wife could obligation support Mr. McMahon that be terminated. for

34. Defendants failed intervention provide alimony agreement by failing Mr. McMahon’s concerning same the March specifically provide agreement agreement as amended the December with final decree. agreement not worded merging ....

38. McMa- failing merge Defendants’ conduct Mr. alimony a final was a agreement hon’s divorce decree care, breach of defendants’ to exercise reasonable skill on diligence Mr. McMahon’s behalf. failure merge As result of defendants’ final Mr. McMahon’s with the divorce decree, Mr. Loss.... injury McMahon sustained allege in the that he complaint Appellant Nowhere does he legal received incorrect or insufficient advise He signing agreement. relied before does claim terms, agreement’s he was misled or about about

315 Rather, language alimony. on remarriage effects of for a defined paid would provided period. court a trial court concludes appellate when an

Normally, ad- than that correct, a reason different is but for decision affirm. court would judge, appellate vanced the trial has case, plaintiff I However, while conclude that in this no action, the trial court decided because not stated a cause averred, opportu- given he was cause of action could be the court I believe on remand complaint. his nity to amend Prelimi- 4 Defendant’s 3 and of the paragraphs should address sufficient or complaint if the Objections, and determine nary to amend. permitted if Plaintiff should be CAVANAUGH, dissenting. Judge, before I threshold issue

I dissent. see the respectfully most majority different posed by from the one question us as a opinion. at the outset of its substantially modify court undertake to superior

Should the there is decision where supreme in a court policy adopted the case from distinguishing rationale for principled no is to overrule or and where the effect supreme court decision promulgat- which have been abrogate a series of decided cases the su- interim between published four-year ed and today’s court decision and decision? preme enunciation be less need of Although principle no should frequent self-remind engaged our court has repetition, See supreme opinions. court ers of our of obeisance Furnaces, 111, 613 A.2d Pa.Super. 418 v. Drever Aivazoglou (1992) policy making court as (deferring supreme 595 our Zemel, R. Commonwealth); v. Foflygen see also court of this (1992); M.D., 18, Preiser v. 615 A.2d 1345 Pa.Super. 420 341, allocatur 614 A.2d 303 Rosenzweig, Pa.Super. 418 (1993); v. A.2d 1009 DeFrancesco 535 Pa. 631 granted, Co., 1295 Pa.Super. 329 Western Pa. Water 545, 464 (1984); v. Edrington, Commonwealth (1983). course, not hesitat court has supreme Of A.2d 456 that our ed to remind our court of its confines when felt proper its boundaries. See two stepped beyond had Publications, Inc. v. day: Municipal cases decided the same Pleas; Appeal Edgehill, Pa. Common (1985) by Reilly A.2d 1286 v. Reilly SEPTA 489 A.2d 1291 Berschler, Miller

(1993) Muhammad v. applicability we examined the Strass- al, burger, 526 Pa. to a case et to the instant matter and involving circumstances similar opined: appellant’s argument unpersuasive.

We find the Muham- mad, terms, in bars who speaking straightforward litigants agreement have a from subsequently entered settlement attorney legal malprac- a suit their maintaining against agree- tice fraud is in the inducement of the alleged unless fundamentally ment. is a may argued While be that this problematic holding, obliged pronounce- we are to follow ments highest e.g., of our court. See Commonwealth (1985) (“The 537, 545, Dugger, 486 A.2d formal is to maintain and purpose court Supreme] effectuate the decisional law Court as [the as faithfully possible.”)

... rule Supreme sponte promulgated sua a attorneys protection malpractice broad in cases. affording stated, to be a permit we will not a suit filed Simply his a plaintiff against attorney following dissatisfied set- plaintiff agreed, tlement to which the unless that plaintiff can fraudulently origi- show he was induced to settle the An against attorney nal action. action should not lie for malpractice prin- based on contract and/or ciples agreed when client has to a settlement. Rath- er, cases of fraud should actionable.

Id., 526 Pa. at A.2d 1346. The court gave rationales for this rule: the court declared following nature, and essence of settlement is contractual contract, similar a time for a questioning whether settlement, advantageous is is before agreement settlement 547-548, 1349; principle of A.2d at the contract id. at settlements, so that a similarly emptor applies caveat locked into is entering a settlement person into agreed he to once the compromise whatever 1349; at the Court effective, at 587 A.2d becomes id. supported public policy overriding found that a if result, to settle case lawyers might its be reluctant them for way find a to sue they might feared client later ” “ done, not,’ but id. at ‘cold have been something 1349; with the at was concerned courts finality delay already lack of overcrowded concerning ‘litigation [the “we should view court] believed: 549-550, jaundiced eye,” id. at litigation’ cases with a 1350; particular over is of litigation A.2d at settlements concern, part an essential because settlement judicial system, our id. at operation efficient 1349; societal advan- finally, A.2d at there are distinct tages judicial to a which is not adversarial nature system attempts disputes by compromise but resolve conces- sion, 551-552, id. at 587 A.2d at that,

It the broad rationales em- appears given policy articula- ployed by unqualified Court and “simply tion holding, proclaims of its stated” fraud, which, clear, attorneys line rule absent shields bright malpractice sounding from in or legal claims completed they by contract where involve cases concluded settlement. 408-09, 405, 406-07, Berschler, Pa.Super.

Miller v. 595, 596, 597. in argued The dissent Miller that Muhammad should be as dispute limited cases where the to the amount in money settlement. involved conspicuously any fails to refer present majority in which opinion suggest would

language supreme be as it is interpreted the Muhammad decision should suggests revisitation to today. Although majority twice distinction, the “amount” of dollars as a basis for the court later would draw the line between Muhammad cases where there was a failure to advise a client about well- “impact established of law and the on future obli- or, declaratively by majority, stated where gations” as or her “deficiency lawyers there is a exercise of his (which If professional judgment”. these statements could well be all are to be taken legal malpractice) used as definition of Muhammad, as the basis for differentiation from it is clear Muhammad, that the but majority only improperly not limits that our court in fact enunciated policy has now nullified by supreme our court. emasculates Muham-

Thus, majority opinion but, overrides, mad four effectively pub- also overrules or court which reasoning lished decisions this followed policy of Muhammad. These decisions which involve nine court, judges part hegemony of this are but a of the which our may reasonably pivotal be attributed to the decision highest example, court.1 For we do not know number of unpublished applied memoranda our court have immunity policy or the number of cases the trial courts2 applied which have its literal terms or followed virtually the authorities above which have now been discussed Nor can we measure the effect that Mu- discountenanced. hammad, previously applied by as our cases and its own broad has had counsel and their advice to language, upon prospective litigants previous today. the doctrine of stare sum, decisis I would apply

eloquently by Judge Rowley: described majority Although overruling undertakes to avoid in haec verba Kotzen, 71, 77-79, (1994); Pa.Super. Goodman v. 647 A.2d Kronz, 341, 344-46, Spirer v. Freeland & Concilio, and Martos v. (1993), they indistinguishable reading majority are in fact and a of the opinion discloses that there is no reasoned basis which these opinions may distinguished from cases Muhammad Miller. These supreme all followed the court’s decision in Muhammad and do not provide any support reasoning majority. present for the (No. example, Phelps for See v. Williams 83-5499-14-2 C.C.P. Bucks Co., 30, 1991); (no. Oct. Estate Andrews v. Newman 88-06167 C.C.P. of Co., 8, 1991); (No. Montgomery v. C.C.P. Oct. Dries Holko 86-C-1942 Co., 27, 1991) (bench Lehigh Sept. opinion).

Furthermore, us to the necessary explore it not is analysis. of Such determina- impact particular extent and Pennsyl- Court of Supreme of the prerogative tions are the Rather, Supreme to follow the compelled we are vania. Fitterer, 503 Pa. Carrender [v. Court’s decision class, the same in factual situations of ] Supreme to be. present which we find the case Where obli- it is our subject, has on a spoken particular Court court, to and follow gation, appellate an intermediate of as to establish some measure that decision so apply absence stability our case law. predictability and of a distinction between facts legally of a relevant us, obliged are we previous case and the case before in the Supreme of Court’s decision follow the dictates to create irrele- prior Resolving by attempting case. cases of doctrine vant, impedes application factual distinctions imbue decisis, function of which is to of the principal stare predictability some measure of judicial system with law in a con- of the stability, places development stant, practitioners flux such that neither uncertain state of can, any degree predictability, judges nor trial law to each new application proper determine them. It also similar facts that comes before involving case analysis apply our different methods of prerogative which particular our has made clear where particular it situa- analysis applied believes should tion. Co., & 371 Pa.Super.

Malinder Jenkins Elevator Mach.

421-22, 538 A.2d Or, day by on an earlier Mr. Justice Paxson: plaintiff,

It was admitted the learned counsel authority against his view the current case, previous decisions urged we were review with the state harmony this court and recast them why no public opinion present day. at the We see reason public to suit the barometer of change the law should why opinion. contrary, many we see reasons On the for such disposed, should not. And are we not especially reason, cases, decided, long solemnly to overturn a line of have, extent, to some become property, rules of the faith of which investments have been made and have It is our maxim rights grown up. apply stare decisis. Dunkirk, Co.,

Struthers v. Pittsburgh Rwy. Warren & (1878) (cited Dictionary Black’s Law 4th Edition Decisis). 1976-Stare I

Respectfully, present would conclude that case is holding controlled Muhammad v. et Strassburger, al.; adopted by majority and also that the new rule artificial, unworkable, any principled based on distinc and, tion attributable to the supreme according court decision I, therefore, ly, Dissent and Affirm trial would the order of the court.3

CIRILLO, HUDOCK, JJ., join. POPOVICH and Pennsylvania, Appellee,

COMMONWEALTH of Eugene MILLER, Appellant. Thomas Pennsylvania. Court of

Argued Jan. 1995. March Filed course, application 3. Of of the Stare decisis doctrine does not which, preclude judicial recognizing governance statements while supreme majority, question- practical of a undertake to wis- holding. present example. dom of the rule is an See dissent ("It’s Pennsylvania Lawyers”) Christmastime and con- ([the immunity granted currence in Gordon is] in Muhammad "well shield]). nigh may absolute” be an unmerited [and

Case Details

Case Name: McMahon v. Shea

Court Name: Superior Court of Pennsylvania

Date Published: Feb 23, 1995

Citation: 657 A.2d 938

Court Abbreviation: Pa. Super. Ct.