*4 NIX, C.J., Before LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, STOUT, PAPADAKOS and JJ.
OPINION OF THE COURT STOUT, Justice. the the Haines, A. from order of Esquire, appeals
Barton in affirming Court, Pa.Super. 515 A.2d Superior in the reversing remanding part, judgment and and part, Philadelphia County of the of Common Pleas of order Court faith, in conducted negligently, that held that he and bad Rizzo,1 Frank for his client L. negotiations settlement $50,000to had induced his client to transfer fraudulently he ex- him, costs and improperly and that he accounted him in The judgment against trial court entered a penses. $530,000 damages and compensatory the amount of addition, court punitive damages. the trial affirming judgment, recusal motion. In the denied Haines’ must interest at Superior pay held the Court market than the rate the fraudulent- statutory rather affirm. monies. We ly-transferred Rizzo, stopped in a vehicle September On while intersection, City Philadelphia a by an was rear-ended time, police an off-duty vehicle. At the Rizzo was police Rizzo’s soft-tissue City Philadelphia. for the officer accident, back, neck, sustained injuries, and arm worsened, he under the eventually supervision and came surgical procedures T. M.D. After three Henry Wycis, 16, 1971, September 29 and he became October between and paralyzed. Once handsome permanently partially officer, and comparatively helpless police became vital pitiful invalid. Caiazzo, Esquire, retained J. originally Anthony
Rizzo Philadelphia against City institute a suit [hereinafter ” Richter, he retained the law firm of Later “City case]. Levant, assigned Ross case to Syken, & relationship between an associate with firm. deteriorated, firm left Richter and Haines client, Rizzo took it firm. He file and copied Philadelphia Mayor Frank L. Rizzo. Appellee is related to former who this time friend, had personal become a with him.2 Frank and Lena Rizzo, counsel, under Haines’ instituted a medical malpractice against action Dr. Wycis and the hospi- tal where surgeries were performed “Wy- [hereinafter *6 ” cis The instant action arises from repre- Haines’ case].3 sentation of Rizzo in these two lawsuits.
Haines not pursue did consolidation of the two cases. Rather, a after failed attempt part on the of the City join to estate,4 Wycis’ Dr. City case the was for listed a trial jury before the Honorable Mema B. The Marshall. re- jury turned a in $450,000. verdict favor of Mr. Rizzo for Re- assuring the Rizzos that the Wycis viable, case was still Haines recommended that Rizzo take the money. Neither party filed post-trial motions.
After case, the in the City Marshall, verdict agreement involved, of those conducted a fee dispute hear- ing, wherein argued Caiazzo portion for a the of .and one-third of the placed verdict had in been escrow the of payment legal fees. Citing dissatisfaction with the conduct of the attorneys, and during with Haines’ conduct negotiations, Judge settlement Marshall ordered a return fund, Rizzo, from the escrow $50,000, to of and divided the remainder between the attorneys. Subsequently, Haines procured for himself Rizzo, from supposedly as a a gift, $50,000. of return of the City
Throughout case, course Haines repeated- led the ly Rizzos to believe that Wycis case had a recovery value between and million. The $1 reveals, however, record there was insufficient evi- photocopied many 2. The record reveals that Haines as as six files during his last few months the Richter firm without the firm’s knowledge. impropriety of such is action not before this Court. case, filing City time Wycis Between the of the of the case Pennsylvania changed law allow wife to recover for loss injuries. consortium as result of her Hopkins husband’s See v. 90, Blanco, (1974). 320 A.2d 139 Wycis during pre-trial phase 4. Dr. had died of the case. The preliminary Wycis objections joinder, estate filed to the which were 666, City Philadelphia, aff’d, sustained. 67 Pa.D. & C.2d 231 Rizzo (1974). Pa.Super. A.2d Fur figure. this malpractice justify of Dr. Wycis’ dence insurance cover thermore, professional liability doctor’s $100,000. insufficient addition, there was age only was extending hospital negligent either evidence that the On for Rizzo. caring to Dr. privileges Wycis staff 23, 1978, dismissed on a Wycis case was January Tak Harry A. motion. The Honorable judgment summary alia, inter that, the suit on the basis iff dismissed compensated Rizzo for fully in the suit had City recovery Rohrback, aff'd, Rizzo v. 8 Pa.D. & C.3d injuries. A.2d 995 Pa.Super. malpractice action instituted the instant The Rizzos alia, negligence inter professional against alleging, case, fiduciary duties with breach of settling the City $50,000 transfer, accounting of improper respect without a jury The case was tried expenses. costs and January On Raymond I. Kremer. the Honorable before *7 $300,000 He 1984, found for the Rizzos. awarded judge settlement, $150,- plus for compensatory damage negligent sum, statutory rate of on that calculated at 000 interest transfer, $50,000 plus He a return of the also awarded 6%. In statutory rate. $25,000 in interest also calculated at $5,000, interest, including addition, he another awarded Haines had expenses costs and representing $150,000 Lastly, the court awarded accounted. improperly sides damages. op. Trial at 73. Both slip Ct. punitive motions, objecting judgment post-trial filed Rizzos to the rate interest against objecting him and the 30, 1984, Haines filed On judgment. January to the applied motion, Kremer had been alleging a recusal 20, 1985, Judge June City in the case 1975. On involved motions and the motion to post-trial denied the Kremer affirmed, that, and held due Superior The Court disqualify. Rizzo with fiduciary duty regard to his breach of the transfer, pay must interest on statutory than the rate. the market rate rather amount at of the trial court the factual determinations reviewing In fact, to them the we must attribute sitting as finder 492 force and v. Cushing
same
effect as a jury’s verdict.
Cover
Capital Corp.,
593,
344
497
Pa.Super.
(1985);
A.2d 249
Herrmann,
v.
Snellbaker
520,
315
462
Pa.Super.
A.2d 713
(1983).
we
Accordingly,
view
evidence and all reason-
inferences therefrom in the light
able
most favorable to the
Rizzos, as verdict winners. Wilson v.
Benjamin,
332 Pa.
Super. 211,
(1984);
(1983). We will not our judgment substitute for that of the trial court. Delahanty, supra. in this light,
Viewed the facts surrounding the settlement City negotiations case are as follows. On March 1974, at Haines’ an request, informal conference held Albert, office of Sheldon the Chief Deputy City Solici- tor. After “mini-trial” of Rizzo’s position, Haines, with approval put Rizzo’s forth as million his client’s initial $1.2 86-89; settlement offer. N.T. 8/21/83 at 4/29/83 & 5/2/83 City accept did not this offer. Haines later provided the City figures with actuarial detailing client’s *8 potential earnings police a officer as versus his earnings jobs conceivably perform other that he given could his 87-88; N.T. disability. 8/21/83 at 4/29/83 at 69-70. The City responded. never
Again request,5 at Haines’ a pre-trial settlement confer- ence was held the McDevitt, before Honorable John J. III. following 5. the Haines wrote letter: an initial put the meeting, judge April At the $500,000 and on the case between ,/ange settlement his Haines reiterated at 107. 7/21/83 $3,000,000. N.T. Moran, City Deputy Mr. a million. demand of $1.2 client’s lifetime plus offering Solicitor, responded by stated Moran accept. did not Id. which pension, departments from other approval needed he although that the regarded he pension, the office to effectuate within it. accomplish could he he “firm” believed as because offer Moran had Albert testified 38. Sheldon Id. at at 11. 4/29/88 a fashion. N.T. in such to settle authority inquired he neither that, meeting, at the Haines testified N.T. pension, in a lifetime involved City what was was pension nor asked whether pml-2, at 4/27/83 He pm6. at settlement. Id. to a structured analogous Rizzo because explore pension not that he did stated disability pension for a City to the applied previously hearing because an administrative denied after City Rizzo there- duty. he on did not occur while accident him a pension. get that the could City did not fore believe explore Haines also did at 27. 4/29/83 & 5/2/83 N.T. Mr. Moran’s he did not believe pension because a true offer. constituted pension concerning remarks passing. made the remark Rather, that Moran thought did, however, one week of within at He pm4. N.T. 4/27/83 in which he letters to Mr. Moran conference, two write as well as City, from the for an offer asked specifically did not Mr. Moran concerning pension. information 104-08; N.T. at N.T. 7/21/83 these letters. respond 5/3/83 at formal set- second arranged for a
Subsequently, 18,1975, April Friday, transpired It conference. tlement At the trial, Judge Marshall. in front of days three before of the dismissal Superior affirmance Court’s In view of the defendants, special that a coupled with the fact both additional case, perhaps settle- granted trial in this listing for the has been might meaningful. be time at this ment discussion 100-01. N.T. 7/21/83 *9 meeting, raised his settlement demand to million.6 $2 In Moran made response, the offer only ever made in City writing. $50,000. This offer was for Moran testi- fied that he lowered offer because Haines had raised the demand. N.T. 5/3/83 at 12. day trial,
After fourth another settlement confer- ence held Judge was before The judge Marshall. offered to lend her assistance in reaching settlement by putting a $550,000 figure of Haines, case. at Id. 13. without Rizzo, consulting first immediately rejected figure. Moran, N.T. 4/27/83 at pm40. response, did not offer $550,000, “if because he is going not to it accept there is point offering no me it.” N.T. 5/3/83 at During 14. trial, however, course of “Look, Moran to say did got I’ve more than what want,” do to you really only Haines’ response was million.” Id. at 15. Haines “$2 inquire did not much how “more” the City willing was pay. Moran further testified that he was authorized to $750,000. settle at trial for Id.
Rizzo testified that he had authorized Haines to settle the $700,000 $750,000. case for N.T. 4/29/83 & 5/2/83 at 161. He further testified that he never authorized Haines million, to raise the demand to nor did $2 Haines ever tell him going 128; he was to do so. Id. at N.T. 8/12/83 at 30. also He testified that Haines never him informed suggested $550,000 Marshall had fig- settlement ure until after the was case over.7 N.T. & 4/29/83 5/2/83 160; at N.T. 8/12/83 at detailing addition to the evidence the specifics of the
settlement negotiations, there also evidence that Haines considered the opportunity try case to be a cornerstone in his building reputation as a plain- successful disputed 6. Haines this fact. He testified that his at demand this Therefore, change did from $1.2 conference the initial million. view, $50,000 City’s it precluded agree- was the low offer of pm29, pm33-34. ment. N.T. at 4/27/83 immediately meeting 7. Haines testified that after he told Rizzo $550,000 Marshall, figure by Judge about the recommended and that rejected it. Rizzo N.T. at 116-17. 7/22/83 7-8; am49; 5/2/83 at N.T. 4/27/83 attorney. tiff’s 8-9. 5/3/83 at transfer, the evidence shows to the regards
With power to a pursuant retained Caiazzo initially that Rizzo *10 a fee of was to receive 50% under which Caiazzo attorney Rizzo then retained deducted. expenses after were Rizzo and the of between power attorney firm. The Richter Haines left the After expenses. firm for after was 40% a of for signed power firm, Rizzo and Haines medical Rizzo to his own pay fee with contingent one-third $450,000 in the 1, 1975 verdict of May After the expenses. firm Caiazzo, Richter were case, Haines, and the City fees and costs. legal allocation of agree to on the unable 13, 1975, they submitted agreement, May By written agreement, Also the attor- Marshall. dispute Judge to repre- in an amount a fee escrow account established neys from which recovery, of the total senting one-third 4/28/83 at am36. limit their fee. N.T. agreed to attorneys firm an the Richter reached Haines and July $25,000 in accept firm would the Richter agreement wherein Consequent- N.T. 7/26/83 at 35. of its claims. settlement dispute or at the fee party present firm not a was ly, settlement, attempt at Haines’ failed hearings. Citing $50,000, fund for returned surcharged the Judge Marshall sum “should be added Rizzo, and stated that the the sum to Plaintiff, to the Rizzo.” money amount of distributed to the J.). (Marshall, of Law Findings of Fact and Conclusions $70,- approximately remaining money, judge divided Haines and Caiazzo. evenly between Findings issued of Fact Judge Marshall Shortly after dispute, approached in the fee Haines of Law Conclusions $50,000. N.T. him a return of the from procured Rizzo and practice Rizzo that his at 38. Haines told & 4/29/83 5/2/83 solvent, money and that needed still not case, had a potential Wycis pursuing continue $900,- $800,000 to value, according recovery advise sought independent legal Id. having After 000. of the Bucki, Esquire, propriety as to the Leonard J. from to the agreed a letter wherein Rizzo action, Haines drafted Id. at transfer.8 126. Rizzo testified that he believed this transfer to be loan. Id. at 176-77. did not inform Marshall, Caiazzo, or or the firm Richter of this In addition, transaction. to the prior time that Rizzo trans- $50,000, him, fered the never wife, showed or his Judge Marshall’s Findings Law, of Fact and Conclusions judge wherein the found that Haines negoti- had improperly 87; ated settlement of the case. 2-3, Id. at at City 5/18/83 91-93; 32-33; at slip 8/12/83 Trial Ct. op. at
Concerning alleged overreaching on fees and reimburse- ments, evidence that during pendency shows of the case, Haines lent City thirty Rizzo or approximately forty dollars each week for expenses, cab fare other nominal eighteen 96; about nineteen months. 5/18/83 N.T. 8-9. 7/27/83 at These transfers largely went undoc- umented. After the verdict but City case before resolution the fee Rizzo dispute, gave Haines *11 cash, $20,000 of which a loan in help was order to Haines proceed with case. Haines Wycis originally had asked $100,000, Rizzo for Rizzo refused to lend. N.T. $20,000 12. 8/12/83 at Haines repaid parties to Rizzo. dispute $10,000. the remaining alleged Haines that al- status of though money was left “open” order to circumstances, changing deal represented with it basically $7,200 reimbursement for the personal advances that Rizzo, $2,800 made to had as well as for miscellane- letter The undated stated: having completely opinion Judge After and read discussed the being fully by legal and Marshall responsibility advised Mr. I have no Haines that so, I, nevertheless, give to do wish to Mr. Haines the $50,000 by disagree Judge to awarded me the Court. I Mar- case, opinion in shall's efforts of Mr. this and know of the constant attention and kept kept who has the one of our case—who documents, up completely particularly of all informed those [sic] settlement, performance complete- whose discussions ly and we are right present up satisfied with to the time. him, up my He there when we I to was needed and want live to agreement, only part because I feel it is of what deserves for myself my family. done for what he has and counsel, fully right any I that I Of course understand have the to [sic], concerning other but I have to no desire do so. N.T. at 106. 4/29/83 legal family. ous services rendered to Rizzo and his N.T. 106-07; 11-31; 7/22/83 at 7/27/83 at 8/9/83 at 209-10. $10,000 thought costs, Rizzo stated that he for only was not for repayment and of loans or for reimbursement of previously-incurred legal expenses. N.T. 8/12/83 at 14. There no an agreement that Haines was to be reim- Id. legal addition, for these services. at 14-15. bursed him Haines never showed a cost sheet or account- otherwise Id. at 9-10. ed for City expenses case. In the however, trial, midst of produced missing “black book,” ledger that detailed his costs and expenses. evidence,
Based on this the trial court found that Haines City negligently case, had conducted settlement of the $50,000 transfer was fraudulent and in violation of Haines’ and fiduciary duty, that Haines had overreached on $2,800. costs and in the amount of expenses His settlement negligent, court, conduct was to the trial according properly “explore good he failed and elicit” faith settle- ment offers from Mr. slip op. Moran. Trial Ct. at 19. The court stated:
It was Mr. Haines’s duty properly sufficiently investigate and determine the value of such proffered or the pension meaning significance of the settlement proposal suggested advanced and City conference before McDevitt. Instead he failed to properly explore and learn the value of the City’s propos- plaintiff plus al to a lifetime He pay pension. right upon did not have the un- rely plaintiff’s “guesses” informed and ill-informed as to the availability of either a or a pension pension-equivalent. He was *12 that settlement in not negligent pursuing proposal as a $300,000 negotiations. City’s basis for The offer of plus either pension properly “grasped” was never by negligently ignored defendant or was him of by because try reputation his desire to the case and establish a as a It is true that Mr. Haines engaged negligence attorney. in some letter and made some writing inquiries with amounts, to values and but there was regard pension no real excuse him to really get for fail informa-
tion he purportedly sought. There were multiple sources information, available for such the most obvious were the personnel City’s pension actuarial sources.
Id. at 20 (emphasis added). The court continued:
The City $550,000 would Philadelphia paid have settlement, following Judge Marshall’s recommendation trial, during and so indicated to After Judge defendant. Marshall’s initial recommendation of was re- Haines, fused Mr. Moran Mr. still indicated that than'$550,000 City pay would more in settlement. Mr. Moran “I asked Mr. can get more than you $550,000. What do you really want?” Mr. Haines did not discuss properly inquiry-offer that the plaintiff. He did properly Judge not disclose Marshall’s recommen- dation Mr. or He did inquiry. comply with a Moran’s duty properly plaintiff inform and to assure that plaintiff heard and understood. He did not properly competently negotiate to elicit how much “more” would paid. $2,000,000 be Instead he to a jumped demand which was calculated to and intended to close off all discussions. Id. at 22.
Concerning $50,000 transfer, propriety of the trial court stated: very
It clear Mr. is ... Haines fraudulently and Judge concealed deceptively ... Marshall’s recitations from Mr. Rizzo. Mr. was Rizzo never advised of any ... rights to contend that there were unrealistic refusals to Mr. negotiate. Rizzo never given opportunity any rights against advised of surcharges seek improper handling negotiations. settlement plaintiff given should have been full opportunity to ex- plore all of Marshall’s accusations and indications of malpractice improprieties and other and their effect upon to fees. entitlement
Id. at 45. complaints error, legal argues his
trial improperly imposed liability court based on exercise
499 tactics, and and that the strategy on matters of judgment him a to elicit his improperly imposed duty trial court The court authority. undisclosed settlement adversary’s erred, holding expert according also to appropriate not needed to detail the standard testimony was care, specula- by holding damages and that the were addition, improp- In Haines asserts that the trial court tive. financial records that detailed ignored authentic erly damages, expenses, by imposing punitive costs and erred in the calcula- Superior ordering and that the Court erred statutory at the market rate rather than the tion of interest in the trial court erred Finally, rate. Haines claims that his recusal motion. denying Monheit, Schenkel v. 396, 405 Pa.Super. (1979), Superior allegedly
A.2d 493 Court held that an aggrieved client must establish three elements order to legal malpractice. recover for are: They “1. The of the or other employment attorney basis
duty; 2. The failure of the to exercise skill ordinary knowledge; and 3. That such cause .of negligence proximate
damage
plaintiff.”
to the
Id.,
Pa.Superior
(quoting
Ct. at
“[voluntary Judges and alike strive assid- judicial lawyers favor. of matters promote adjustments amicable uously they as for the most wholesome of reasons dispute, successful, should. When the effort is certainly parties expense avoid delay litigation incidental issues; of the spared court is of a burdens trial preparation and the and proceedings that must forerun it.”
Id.,
(footnote omitted)
Consistent with skill and it ordinary knowledge, was law, upon incumbent as a matter of to communicate State, all settlement offers to his client. v. See Whiteaker (Iowa 1986); 112 Co., 382 N.W.2d v. Joos Auto-Owners Ins. 419, (1979); 94 443 Mich.App. 288 N.W.2d Rubenstein & 615, v. 31 A.D.2d 295 Papadakos, Rubenstein N.Y.S.2d 876 (1968), 25 N.Y.2d 250 N.E.2d 303 N.Y.S.2d aff'd, (1969). of Professional Responsibility See also Code EC (1974) (noting 7-7 that it is for the client to exclusively offer).9 accept decide whether to a settlement This rule principle derives from the settled that an must Similarly, provide: the Rules of Professional Conduct (a) by concerning lawyer shall abide a client’s decisions A objectives representation ... and shall consult with the client as lawyer A shall abide by they pursued. to the means are to be by accept a client’s decision whether to an settlement a offer of matter. (1988) added). 1.2(a) (emphasis Rules of Professional Conduct client express authority have from the to settle case. Karlak, 299 A.2d Archbishop accept Since the choice to or reject client’s a settlement one, offer must an be informed we further believe that under investigate Haines was also the offers that duty Queen were proposed City. Snyder v. Cutlery Cf. Co., (1986) Pa.Super. (failure to investi gate potential claim can grounds malpractice). be See also Giaramita v. Flow Master Machine N.Y. Corp., investigate S.2d 817 is under (Sup.1962) (attorney duty to case). every phase Thus, material of his or her client’s assertion, contrary duty imposed by to Haines’ the trial court simply opponent’s was not he elicit maximum ' Rather, settlement in the of an it authority form offer. duty steps investigate inquiries take reasonable the City offers that extended. court, however, agree
We cannot trial *15 his investigate Haines breached to the that the duty pension City Although offered. it true that was not is in justified relying on the “ill-informed” of his guesses client, he to pension took reasonable ascertain the steps supplied earning value. He Moran and him wrote figures. inquired He also of Moran the offer pension what asking entailed. Moran failed to to Haines’ letters respond Moran, for prevented more information. and not pension becoming meaningful. the offer from hand, other this clearly duty
On the breached to investigate by failing respond settlement offers to to Moran’s comment at he more than get trial could comment, $550,000. Despite the took no to ascer steps tain “more” He willing pay. how much was to also City to duty breached the communicate this settlement offer to malpractice client. Since other elements of attorney met, have been we hold that breach of these duties is support malpractice sufficient to action.
Concerning the
necessity
expert testimony to
care,
Meehan,
establish the standard
Reardon v.
(1967),
noted
general
Pa.
this Court
rule that
it
expert testimony
help
is essential where would
the finder of fact understand an issue that is
beyond
knowledge
average person.
of the
where the is-
Clearly,
are
beyond
knowledge,
appropriate
sues
such
stan-
expert testimony.
dard of care can be
without
established
obvious,
the issue is
and the lack of skill
simple,
Where
can
ordinary experience
comprehension
lay persons
the standard of care.
Fringe Employ-
establish
Lentino v.
Plans, Inc.,
(3d Cir.1979)
ee
Instantly,
testimony
Mendel,
of M. Mark
The trial court concluded that
Esquire.
expert
assumptions
reaching
this
made inaccurate factual
opinions,
some of his
and therefore did not
on this
rely
expert
reaching its conclusion that Haines violated the
Nevertheless,
standard of care that he owed his clients.
we
agree with the trial court
that breach of the
duty
of,
investigate, and to inform one’s client
settlement offers
Joos,
does not
require expert testimony.
supra,
See
(“It
Mich.App. at
503 further expert testimony We believe that was not needed to detail the obligations fiduciary attorney of an engages client, who financial transactions with his since obligations law, these are by established of Profes Code sional Responsibility, and the Model Rules of Professional Conduct. In Lynch Hook, v. 298 Pa.Super.
(1982), Superior Court stated:
It is well settled that transactions between attorneys and clients will be only sustained when and good faith full disclosures attend such transactions. “The relation [at- torney and is so confidential its nature it client] calls for the exercise perfect of the most good faith ... no shadow of like anything deception unfair [and] dealing upon part of an attorney, can be coun- ____ tenanced.” “often law declares transactions void, between ... their [attorneys and clients] between persons other be unobjectionable.....” would propriety When the of a transaction attorney between issue, has put client been is burden on the to show a preponderance the evidence that his has conduct conformed to these strict standards. Id., Pa.Superior 29-30, (citations 298 444 Ct. at A.2d at 159 omitted). Hewitt, also See Meara v. 314 A.2d (1974). addition, 263 Responsi- Code Professional bility states:
A lawyer should not suggest gift his client be made himself or for his If benefit. a lawyer accepts a gift client, from he is particularly susceptible to the charge that he unduly influenced or over-reached the client client. If a offers voluntarily gift to make a to his lawyer, lawyer gift, may accept doing but before so, he should urge that his client secure disinterested advice from an independent, competent person who is proof negligence arising demand. Whether pretrial from or trial strategy beyond comprehension is laypersons settlement requires expert testimony depends particular facts and circum- Dobrovir, Gebhardt, Applegate stances of case. v. Oakes & (D.D.C.1985), (D.C.Cir.1987); F.Supp. aff’d, Pongonis F.2d Saab, 396 Mass. 486 N.E.2d *17 504
cognizant all the circumstances. Other than in excep- circumstances, tional should insist that an in- lawyer strument in which his client desires to name him benefi- cially prepared by lawyer by be another selected client. (1974).11
Code of Professional 5-5 Responsibility EC The trial court stated:
One of the lessons of this case is to the profession warn regard gravest suspicion law will with the —a virtually suspicion insurmountable —circumstances an whereby attorney procures his client’s assets by way of supposed gift. dealings It is intolerable that there be an client attorney permit attorney between and monies, up to end with the client’s with a as to dispute whether the transaction is one of or gift loan. of the acquisition client’s monies an attor- able-bodied ney from a catastrophically permanently injured alia, supposed inter client, for, purposes disabled must gratitude regarded be law as a void obscenity. language indignation Such conduct demands of judicial and condemnation.
Trial slip op. Ct. at 61. there was no need for Accordingly, expert this testimony establish standard care.
Haines also
argues that the trial court erred
finding that
damages
speculative. Clearly,
were
alleged
“when it is
that an
has
breached
client,
professional obligations to his
an essential element of
action,
the cause of
the action
denominated in
whether
be
Duke & Co.
or
is
of actual loss.”
assumpsit
trespass,
proof
Anderson,
v.
65, 73-74,
613,
Pa.Super.
418 A.2d
617
professional
causing
“The mere breach of a
duty,
harm,
damages, speculative
nominal
or the threat of
only
Similarly,
provides:
the Model Rules of Professional Conduct
(c)
giving
lawyer
prepare
lawyer
A
shall not
an instrument
or a
child,
person
lawyer
parent,
sibling,
spouse any
related to the
as
client,
gift
including testamentary gift, except
from a
substantial
degree
where the client is related to the donee within
third
relationship.
1.8(c) (1988).
Rules of Professional Conduct
future harm —not
suffice
yet realized —does not
to create a
Monheit,
v.
cause of action
Schenkel
negligence____”
supra,
Budd
Pa.Super.
(quoting
Thus, in order for one to
on a claim
prevail
legal
malpractice, one must
the party against
establish that
asserted,
whom
initial claim was
in this case the City,
agreement
would have reached
upon a settlement
an
Levit,
supra,
ascertainable amount. R. Mallen
& V.
§
at 729-31. Sheldon Albert testified
Mr. Moran
had the
authority
$300,000
settle the case for
plus
lifetime
trial,
pension,
that,
and Mr. Moran testified
he
at
had the
Thus,
authority
$750,000.
to settle the case for
this case is
Bierman,
from Fuschetti
distinguishable
v.
128 N.J.Super.
v.
(1974),
Campbell Magana, 184
Cal.App.2d 751, Cal.Rptr.
(1960),
by
cited
Haines.
In
Fuschetti,
held that expert testimony concerning
court
inadmissible,
reasonable settlement value was
because “no
expert
suppose
any degree
can
certainty
reasonable
private
hopes
might
blends of
and fears have come
settlement____”
Id. 128 N.J.Super.
together
produce
Fuschetti revealed
at
Although that did Haines’ answers constitute a admission, judicial trial court nonetheless admitted this It did simply accept evidence. accounting belated explanation that Haines offered. Trial Ct. at 76 slip op. n. 39. We believe there was sufficient evidence support finding that Haines overreached on costs expenses. also argues that the trial court erred $150,000 in
imposing
punitive damages. This Court has
908(2)
Section
adopted
(Second)
of the Restatement
of Torts
regarding the
imposition
punitive damages.
provi
That
permits punitive
sion
damages
conduct
is “out
rageous because
the defendant’s evil motives or his
reckless
indifference
rights
others.” Restatement
(Second)
908(2) (1977).
Merriam,
of Torts
See
Feld
§
(1984);
Pa.
Based on this we believe that trial court acted properly awarding the Rizzos punitive damages. Haines used his position confidential *20 persuade injured good client and that friend he should $50,000 transfer to him the Judge that Marshall had award ed him due to Haines’ misconduct. Haines secured this after transfer intentionally withholding Marshall’s misconduct, findings of in order to evade her He ruling. also secured this transfer by telling his client that he to pursue needed a claim and money against doctor hospital. claim, however, That proved meritless. In addition, he overreached on costs and expenses. These breaches intentional fiduciary duty, withholding crit- ical information and misrepresentation, fraudulent were more than sufficient to justify punitive damage award. Delahanty, supra. argues
Haines also
the Superior
that
Court erred in
calculating
interest on the
transfer
market
rate rather
than the
rate.
statutory
Pennsylvania
has
legislature
provided for
interest
in
prejudgment
breach
of contract cases at the
rate
statutory
percent
of six
per
(Purdon
annum.
Pa.Stat.Ann.
Supp.Pamph.1988).
§
Richards,
In Citizens Natural Gas Co. v.
130 Pa.
18 A.
(1889),
this Court articulated the
rule
tort cases:
cases the party chargeable cannot
or make
pay
[tort]
tender until both the time and the amount have been
ascertained, and his default is not therefore of that abso
lute nature
necessarily
involves interest
for the
delay.
tort,
But there are cases
sounding
and cases of
unliquidated damages,
only
principle
where not
the recovery
is to be had is compensation, but
where also the
can
compensation
be measured
market
standard____
value, or other definite
Into these cases
factor,
the element of time
enter as an
may
important
not
plaintiff
fully compensated
will
be
unless he
receive,
it,
of his
only
property,
value
but receive
be,
nearly may
as
as
as of the date of his loss. Hence it
is that
additional
jury may
damages,
allow
interest,
nature of
for the
of time.
lapse
Id.,
39-40,
509 time precedent, safest and same the fairest at way questions pertaining a court is to decide according interest to a and plain single consideration and justice dealing. fair
Id.,
410,
Damages for the detention of money under the circum- present stances here be should measured by what money so detained if produced would have it been had delivered those entitled to it.
Id.,
Consistent with this precedent, we believe that the Superior Court holding was correct in that Haines pay must interest the market rate on that he fraudu lently induced his client to to him. transfer Courts in this Commonwealth should not permit person guilty of fraudu lently the funds withholding of another to therefrom. profit Conston, 364 Brooks Pa. A.2d See Lexington Co., also Co. v. F.Supp. Ins. Abington (E.D.Pa.1985). Accordingly, where funds are wrongfully and procured or intentionally withheld from one who seeks restoration, their the court should calculate interest these monies at the market rate.
Lastly, argues that the trial court erred failing grant his recusal motion. Haines that asserts Judge Kremer acquired knowledge of extrajudicial disputed evidentiary matters while an that had he parte ex communications some of the con witnesses case, cerning personal had bias prejudice against him his attorney, judge made himself a witness on the motion to disqualify. us presents
This case with the to reaffirm the opportunity our holding Reilly Auth., v. Southeastern Pa. Trans. (1985), that recusal motions must so, filed. do timely
be Since Haines failed to motion must be dismissed. 15, 1983,
The record reveals that on three December trial, months after completion Kremer conduct- a conference in purpose settling ed chambers for the *22 conference, malpractice case. N.T. 12/15/83. At this although stated on the record that he had not made a judge decision, final he did from “strong have recommendation” clerk. 3. The then to off-the- parties agreed law Id. at record settlement discussions separately judge. Id. at 7-8. Haines did not make a motion for recusal at this time. 3, 1984,
On Haines’ counsel January judge wrote requested days negotiate ten additional settlement. On 12, 1984, court, January again Haines’ counsel wrote the stating that “certain information has come to our recently attention that previously which indicates Your Honor was involved in the formation of the facts operative gave rise to slip op. this law suit.” Trial Ct. sur recusal at 4. The letter judge voluntarily asked the recuse himself. stated, resolved, “[ujntil letter also this matter is we that no decision in of either expect party favor will be made in this case.” The letter no Id. contained details as to the foundation for recusal. 18, 1984, the January judge
On conducted another meet- Haines ing again suggested judge wherein that the volun- recuse himself. He tarily alleged judge, that as a in the “formation of the lawyer was involved operative dispute hearing Judge facts” of the fee before Specifically, alleged Marshall. that the had judge knowledge charges of an affidavit which the Rizzos made firm, consulted, against members of the Richter that he was concerning charges, as an these and that he had attorney, knowledge dispute hearings Findings of the fee and the Judge Fact and of Law of Marshall. Conclusions When stated, pressed specifics, Haines’ counsel are not “[w]e evidence at 50. willing produce what we have.” Id. voluntarily, Kremer then refused to recuse himself he did having because ever had contact with remember anyone concerning case. N.T. 1/18/84 at 34-35. Coun- sel for Haines then told the file court would Id. formal motion to within hours. disqualify forty-eight judge finding against 64. The then entered a as he do, had him previously granted stated he would leave to file a motion to disqualify. later,
Twelve Haines filed a days January motion, formal recusal him- supported by the affidavits of counsel, self and of his they January wherein stated that on 6, 1984, at a cocktail told a former party, they were of the member Richter firm and former associate he, associate, the former had heard second-hand of Kremer’s involvement. Haines and his counsel did not submit an affidavit from this individual. The trial court, however, did permit depositions Haines to take from several former members of the Richter firm. evidence,
Based on this
the trial court concluded
*23
insufficient,
that the recusal motion was
untimely,
filed
SEPTA,
in
v.
agree.
bad faith.
Reilly
supra,
We
this
Court enunciated the rule concerning the substance of a
recusal motion: “When
during
circumstances
arise
course of a trial raising questions of a trial judge’s bias or
impartiality,
it is still the duty of the
who asserts
party,
a judge
should
disqualified,
allege by petition
be
bias,, prejudice or unfairness necessitating
Id.,
recusal.”
220,
A.2d at Instantly, 1300. Haines allegedly obtained the 6, 1984, information at a cocktail party January and also on January pressed however, for specifics, When divulge refused to his information. It not until was after days entry produced twelve of the verdict that Haines any concerning Judge information Kremer’s in involvement the case. that the trial court communi- regard assertion
With witnesses, parte cated ex knowledge Haines had actual with 15,1983, conference that eight months before December conducting other cases process the trial court was scheduling some of the and that it needed to discuss parties asked if the specifically The trial court witnesses. responded and Haines objection procedure, had an this at 43-44. negative. Finally N.T. 4/29/83 & 5/2/83 made statements off Haines’ assertion that the trial court trial court was record that indicated that biased 15, 1983, him and his at the December against 30, 1984, January forty-six conference not raised until was memorialize those No made to attempt later. days meeting. Accordingly, record at the comments on the denying discretion in the recusal trial court acted within its to untimeliness. motion due recusal motion a if Haines had filed the
Even
that the
fashion,
finding
affirm the trial court’s
we
timely
for recusal
petitions
meritless. A
who
party
motion was
evidence that establishes
producing
the burden of
bears
v.
Perry,
or unfairness. Commonwealth
bias,
prejudice,
Hill, v.
(1976);
Feingold
515,
Lastly,
Publica
Municipal
motion,
in
recusal
under
witness
Pleas, 507 Pa.
tions,
v. Court
Common
Inc.
There,
imper
it
this Court held that was
A.2d
as a
itself to be called
permit
the trial court to
for
missible
Id.,
conduct.
concerning its
testify
and to
witness
The Order of the Superior Court is affirmed. FLAHERTY, J., joins the majority opinion and files a concurring opinion ZAPPALA, J., which joins. PAPADAKOS, J., concurs in the result.
FLAHERTY, Justice, concurring.
I join the but majority express my concern about creating precedent imposes on an liability attorney for a settlement and for not strategy “second a guessing” jury being unaware of the actual limits of authority an opposing attorney during settlement negotiations of a civil suit; dangerous law certainly step and one which should approached be believe, utmost caution. I do not however, this case sets such precedent.
ZAPPALA, J., joins this concurring opinion. CORETSKY, Appellee,
Steven TOWNSHIP, BOARD OF COMMISSIONERS OF BUTLER County Pennsylvania, Appellant. Butler Supreme Pennsylvania. Court of
Argued Sept. 1988. Decided March