Storm v. Golden

• Decision Date: 22 February 1988
• Citation: 538 A.2d 61,371 Pa.Super. 368
• Parties: Margaret STORM, Appellant, v. W. Brian GOLDEN.
• Court: Pennsylvania Superior Court

Page 61

538 A.2d 61

371 Pa.Super. 368

Margaret STORM, Appellant, v. W. Brian GOLDEN.

Superior Court of Pennsylvania.

Argued Sept. 22, 1987.

Filed Feb. 22, 1988.

Steven E. Krawitz, E. Stroudsburg, for appellant.

Eugene J. Maginnis, Philadelphia, for appellee.

Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.

TAMILIA, Judge:

Appellant, Margaret H. Storm, commenced this action against her former attorney, W. Brian Golden, appellee, by writ of summons on June 3, 1981 followed by a complaint in trespass and assumpsit filed March 31, 1982. In her complaint, appellant claims damages for professional negligence and breach of contract arising from appellee's representation in a real estate transaction. After procedural delays, the case came to trial before a jury on February 7, 1986. At the close of appellant's case-in-chief, appellee moved for a compulsory nonsuit (N.T. 2/7/87, pp. 122-23), which was granted (N.T. 2/7/87, p. 143). Appellant filed a timely motion to remove the nonsuit and for new trial, which was denied by Order of January 16, 1987. This timely appeal followed.

The trial court found that in June, 1979, appellant negotiated an oral agreement with Albert Cole to sell a residential home for $48,000. She then retained appellee to draft an installment sales agreement containing the terms of the oral agreement reached by appellant and Cole prior to contacting appellee. Appellee drafted the installment sales agreement which provided appellant was to receive $131 per month from July 1, 1979 until closing on November 1, 1979, and thereafter, $500 per month until the entire contract price of $48,500 plus interest had been paid over the course of a ten-year term, with a clause expressly prohibiting prepayment of any of the installments until July of 1982. The installment sales agreement was executed by appellant and Cole at appellee's office on June 29, 1979. Prior to closing, appellant delivered to appellee a handwritten affidavit, signed by her on July 5, 1979 before a notary public, attesting that Cole had prepaid "all monthly payments in the entire sum of $38,500" (Defendant's Exhibit No. 1, 2/7/86). In addition to the real estate transaction, appellant gave Cole between $3,500 and $5,500 as a personal loan.

Sometime in September, 1979, Cole executed a sales agreement prepared by a real estate corporation to sell the house to Wayne and Patricia Smith. Patricia Smith was appellee's legal secretary. Appellant also executed the sales agreement on October 4, 1979, and on October 18, 1979 appellant signed the deed at appellee's office in advance of closing because at that time she felt she would be unable to attend the closing. The closing took place on October 30, 1979 with the Smiths, Cole, appellant, appellee and various bank representatives in attendance. At the closing, appellant received a $5,500 payment on the personal loan from Cole. A proceeds check in the amount of $24,542.76 was made payable to appellant and Cole. Both appellant and Cole endorsed this check and appellant delivered it to Cole; he has not been seen nor heard from since. A second check in the amount of $10,107.12 was forwarded to a savings and loan to satisfy appellant's mortgage. Appellant now blames appellee for what she perceives as his failure to ensure that she received the proceeds of the sale. The trial court specifically found that appellant's "irrational trust in Albert Cole was founded in Christian faith and fueled by his representation of faith and Biblical interest to such a degree that under his influence 'she couldn't think for herself' " (Slip Op., Vicar, J., 1/16/87, p. 3).

Appellant claims it was error to consider and enter a compulsory nonsuit in this case because appellee had already entered evidence before his motion for a nonsuit. At trial, appellant testified on her own behalf concerning appellee's conduct and representation in the real estate transaction. On cross-examination, appellee admitted into evidence three defense exhibits and examined appellant as to matters concerning the exhibits. Defendant's Exhibit No. 1 is a handwritten affidavit written and signed by appellant which states she waived her rights in the installment sales agreement and states she was prepaid by Cole in the amount of $38,500 (N.T. 2/7/86, p. 42). Defendant's Exhibit No. 2 is a treasurer's check in the amount of $24,542.76 with the bank as payor and the appellant and Cole as payees, representing the proceeds of the house sale to the Smiths (N.T. 2/7/86, p. 50). Lastly, defendant's Exhibit No. 3 is a check in the amount of $10,107.12 made payable to a savings and loan in order to satisfy appellant's mortgage. All of these exhibits were intended to show that appellant received the proceeds due her from the transactions involved (N.T. 2/7/86, p. 52).

At the end of appellant's case, appellee moved for a compulsory nonsuit; the parties argued the motion, which was granted at trial (N.T. 2/7/87, p. 143).

A motion for compulsory nonsuit allows a defendant to test the sufficiency of a plaintiff's evidence. Francioni v. Gibsonia Truck Corporation, 472 Pa. 362, 372 A.2d 736 (1977). A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in the evidence in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 506 A.2d 862 (1986); Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Pennsylvania Rule of Civil Procedure 230.1, Compulsory Nonsuit at Trial, provides:

In a case involving only one defendant, at the close of plaintiff's case on liability and before any evidence on behalf of the defendant has been introduced, the court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief. If the motion is not granted, the trial shall proceed. If the motion is granted, the plaintiff may file a written motion for the removal of the nonsuit.

(Emphasis added.) Our Supreme Court has strictly enforced the rule that a nonsuit may not be granted where a defendant has offered evidence either during the plaintiff's case, Highland Tank & Manufacturing Company v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966); Cantanzaro v. Pennsylvania Railroad Company, 230 Pa. 305, 79 A. 624 (1911), or after it. Atlantic Richfield Company v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978); F.W. Wise Company v. Beech Creek Railroad Company, 437 Pa. 389, 263 A.2d 313 (1970); Jordan v. Sun Life Assurance Company of Canada, 366 Pa. 495, 77 A.2d 631 (1951). ¹

Here, appellee offered the defense exhibits during appellant's case and the trial court had the exhibits before it when it evaluated the motion for compulsory nonsuit. The express language of Rule 230.1 and the above cited authorities compel us to conclude the trial court was not empowered to enter a nonsuit because appellee had offered evidence.

However, even though it was procedurally improper for the trial court to enter a nonsuit, we find that as a matter of law the error was harmless. See Atlantic Richfield Company, supra (entertaining a harmless error argument with respect to improper entry of a nonsuit); Jordan, supra (ruling that an improperly entered nonsuit could not result in a new trial when to do so would be a vain act as a matter of law); and Pushnik v. Winky's Drive In Restaurants, 242 Pa.Super. 323, 363 A.2d 1291 (1976) (concluding improperly entered nonsuit would be affirmed as harmless error where defendant could not be liable as a matter of law). We reach this determination upon review of the basis of the trial court's entering nonsuit and in disposing of appellant's second issue on appeal dealing with whether expert testimony is required as a matter of law in order to establish a prima facie case of legal malpractice in Pennsylvania.

There are three essential elements which must be established in order to bring an action for legal malpractice: 1) the employment of the attorney or other basis for duty; 2) the failure of the attorney to exercise ordinary skill and knowledge; and 3) that such negligence was the proximate cause of damage to the plaintiff. Trice v. Mozenter, 356 Pa.Super. 510, 515 A.2d 10 (1986), allocatur granted, 514 Pa. 643, 523 A.2d 1132 (1987); ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 504 A.2d 281 (1986); Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979) (establishing the elements in Pennsylvania). The trial court concluded that because appellant offered no competent evidence in the form of expert testimony as to the proper standard of care under which appellee should have conducted himself and in what way appellee's actions deviated from that standard, the second element was not met, therefore, as a matter of law appellant failed to meet her burden of proof, warranting entry of a nonsuit.

Whether expert evidence is necessary or required in a legal malpractice case to establish an attorney's breach of his duty of care is a question of first impression in Pennsylvania. However, we are not without guidance in this area. As a general rule, our Supreme Court has held that "expert testimony is necessary to establish negligent practice in any profession." Powell v. Risser, 375 Pa. 60, 65, 99 A.2d 454, 456 (1953); Bierstein v. Whitman, 360 Pa. 537, 541, 62 A.2d 843, 845 (1949). ² Although such a general statement is not a concrete pronouncement as to any one profession, it exhibits a recognition that when dealing with the higher standards attributed to a professional in any field a layperson's views cannot take priority without guidance as to the acceptable practice in which the professional must operate. The standard of care in a legal malpractice case is whether the attorney has exercised ordinary skill and knowledge...