Opinion
J-S31033-18 No. 2688 EDA 2017
10-22-2018
INDEX REALTY, INC., ALBERT A. CIARDI, III, RUDOLPH J. DIMASSA AND ANTHONY MASAPOLLO v. JOSEPH J. GARGANO, AND JOSEPH Q. MIRARCHI AND MIRARCHI LEGAL SERVICES, P.C. APPEAL OF: JOSEPH Q. MIRARCHI, ESQUIRE
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered August 4, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at No(s): August Term, 2015 No. 02844 BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J. MEMORANDUM BY SHOGAN, J.:
Joseph Q. Mirarchi and Mirarchi Legal Services, P.C. (collectively "Counsel") appeal from the judgment entered in favor of Joseph J. Gargano ("Client") for $19,000, made final by the entry of orders granting Client's motion for post-trial relief and denying Counsel's motion for reconsideration. We affirm.
Additionally, we dispose of several outstanding motions filed in this Court. Client filed a document entitled, "Petition for Oral Argument and to Tax Costs of Supplemental Reproduced Record Against [Counsel]" on April 11, 2017. Counsel responded to both requests. We denied the application for oral argument by order filed April 27, 2018. We now deny Client's request to tax Counsel with the cost of supplementing the reproduced record.
Counsel filed a document entitled, "Motion to Accept Reply Brief" on May 11, 2018, and a document entitled, "Motion to Accept Amended Reply Brief" on May 23, 2018. Client has not filed a response to either motion. We grant Counsel's Motion to Accept Amended Reply Brief, and we deny Counsel's Motion to Accept Reply Brief as moot.
The trial court set forth the facts and procedural history of this case in its Pa.R.A.P. 1925(a) opinion. Trial Court Opinion, 6/3/18, at 1-6. In summary, Counsel represented Client in a breach-of-contract action filed against Client's former employer, Index Realty, Inc. and its individual owners of Le Castagne restaurant (collectively "Index Realty") for unreimbursed expenditures on alcohol ("Contract Action"). Counsel failed to notify Client of an arbitration hearing scheduled in the Contract Action and failed to attend the hearing on Client's behalf. Consequently, a judgment of non pros was entered against Client.
Index Realty then sued Client and Counsel under the Dragonetti Act, 42 Pa.C.S. §§ 8351-8355 ("Dragonetti Action"). Client filed an answer in the Dragonetti Action, along with new matter, a counterclaim against Index Realty for the $19,000 in unreimbursed expenditures ("Counterclaim Action"), and a crossclaim against Counsel for legal malpractice ("Crossclaim Action"). Counsel did not file an answer in the Dragonetti Action; consequently, a default judgment was entered against him. Instead, Counsel filed an untimely petition to open and vacate the non pros judgment entered against Client, which ultimately was denied, and an answer and new matter with affirmative defenses in the Crossclaim Action.
Following an arbitration hearing, the panel found in favor of Client and Counsel in the Dragonetti Action and in favor of Client in the Counterclaim Action in the amount of $1.00; the panel dismissed the Crossclaim Action as moot. Arbitration Award, 5/20/16. Client appealed the arbitration award for de novo review in the Philadelphia County Court of Common Pleas. In the meantime, Client and Index Realty reached a mutual discharge agreement but did not have the docket marked settled, satisfied, or discharged.
The trial court conducted a bench trial on February 7, 2017, addressing only the Crossclaim Action. Following the submission of post-trial briefs, the trial court entered judgment in favor of Counsel, ruling that Client failed to state a cause of action upon which relief could be granted. Order, 7/26/17. Client moved for post-trial relief, which the trial court granted because when it entered the July 26, 2017 order, it "was not in possession of the entire Crossclaim." Amended Order, 8/4/17. In the amended order, the trial court vacated its prior order and entered judgment in favor of Client for $19,000. Counsel filed a motion for reconsideration, which the trial court denied. Order, 8/16/17. This appeal followed. Counsel and the trial court complied with Pa.R.A.P. 1925.
On appeal, Counsel presents three issues for our consideration:
1. Whether the court erred as a matter of fact and law by finding in favor of [Client] when it failed to consider the effect of
[Client's] settlement of the underlying matter on the legal malpractice crossclaim filed against [Counsel].Counsel's Brief at 6.
2. Whether the court erred as a matter of fact and law by finding in favor of [Client] when it vacated a prior order of July 26, 2017, and finding that [Client] established a claim for legal malpractice and awarded nineteen thousand dollars ($19,000.00) in damages even though [Client] failed to establish the claim.
3. Whether the court erred as a matter of fact and law by finding in favor of [Client] when it granted [Client's] motion for post-trial [relief] without considering [Counsel's] response to the motion.
Client argues that Counsel has waived the third issue by failing to address it in the argument section of his appellate brief. Client's Brief at 4, n.1. In response, Counsel claims that he addressed the third issue at pages 46-50 of his brief. Counsel's [Amended] Reply Brief at 2. Because we have accepted Counsel's Amended Reply Brief, we decline to find the third issue waived.
As Counsel's issues involve a nonjury verdict, the following well-settled standards guide our review:
Our review in a non-jury case is limited to whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. We must grant the court's findings of fact the same weight and effect as the verdict of a jury and, accordingly, may disturb the non-jury verdict only if the court's findings are unsupported by competent evidence or the court committed legal error that affected the outcome of the trial. It is not the role of an appellate court to pass on the credibility of witnesses; hence we will not substitute our judgment for that of the factfinder. Thus, the test we apply is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion.Stephan v. Waldron Elec. Heating & Cooling , 100 A.3d 660, 665 (Pa. Super. 2014) (internal citations omitted).
Having thoroughly reviewed the certified record, the parties' briefs, and the relevant jurisprudence, we find no basis to disturb the nonjury verdict. The findings of the trial court are supported by competent evidence, and the trial court did not err in its application of law. Indeed, the trial court accurately and adequately addressed Counsel's issues in its Pa.R.A.P. 1925(a) opinion. In disposing of this appeal, therefore, we affirm on the basis of the trial court's analyses and conclusions that (1) it did not abuse its discretion in granting Client's post-trial motion before Counsel filed his responsive motion; (2) it did not err in ruling that Client established a claim for legal malpractice against Counsel; and (3) it did not err in ruling that Client's mutual discharge with Index Realty did not preclude his legal malpractice claim against Counsel. Trial Court Opinion, 6/3/18, at 8-15.
The parties are directed to attach a copy of the trial court's June 3, 2018 opinion in the event of further proceedings in this matter.
Judgment affirmed. Application to Tax Costs of Supplemental Reproduced Record denied. Motion to Accept Amended Reply Brief granted. Motion to Accept Reply Brief denied as moot.
Judge Dubow did not participate in the consideration or decision of this case. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/22/18
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