Opinion
J-A21043-16 No. 2794 EDA 2015
11-17-2016
MICHAEL KACHMAR, Appellant v. WILLIAM J. LITVIN, ESQ. d/b/a LAW OFFICES OF SALING AND LITVIN
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment entered September 10, 2015 in the Court of Common Pleas of Chester County, Civil Division, No(s): 2013-06092 BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.
Michael Kachmar ("Kachmar") appeals from the Judgment entered against him and in favor of William J. Litvin, Esquire, d/b/a Law Offices of Saling and Litvin (collectively, "Litvin"), in this professional negligence case. We affirm.
In its October 22, 2015 Opinion, the trial court set forth the factual and procedural history underlying the instant appeal, which we adopt as though fully restated herein. See Trial Court Opinion, 10/22/15, at 1-3; see also Trial Court Opinion, 3/18/15, at 1-4.
Following a bench trial, the trial court found in favor of Litvin and against Kachmar. Kachmar filed post-trial Motions, which the trial court denied. Thereafter, Kachmar filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Kachmar presents the following claims for our review:
(1) Did the trial court commit an error of law in granting Litvin's Motion for Bifurcation, further remanding the "case-within-the-case" to a non-jury trial?Brief for Appellant at 4.
(2) Did the [trial court] commit an error of law in holding [that] Muhammad [ v. Strassburger , et al., 587 A.2d 1346 (Pa. 1991),] per se[,] precluded a verdict in favor of Kachmar at trial?
Kachmar first claims that the trial court erred when it granted Litvin's Motion for Bifurcation, thereby allowing the "case-within-the-case" to proceed without a jury. Id. at 17. Kachmar contends that at all times, he demanded a jury trial, and that the bifurcation and non-jury trial of the "case-within-the-case" violated his rights under the Pennsylvania and United States Constitutions, as well as Pa.R.C.P. 1007.1(c)(1). Id. According to Kachmar, "the liability of Litvin (which is separate and distinct from the case-within-the-case proof) necessarily became part of the trial." Id. at 18. Kachmar contends that "the non-jury trial confused Litvin's liability with the Order of bifurcation[,] vis-à-vis 'case-within-the-case' proofs—with damages being relatively simplistic as mathematical (i.e., the underlying settlement amount to Christine Kachmar)." Id.
As we will discuss infra, a legal malpractice action in Pennsylvania requires the plaintiff to prove that he had a viable cause of action against the party he wished to sue in the underlying case, and that the attorney he hired was negligent in prosecuting or defending that underlying case (often referred to as proving a "case within a case"). Poole v. Workers' Comp. Appeal Bd. (Warehouse Club , Inc.) , 810 A.2d 1182, 1184 (Pa. 2002).
Under Pa.R.C.P. 213(b), the decision whether to bifurcate a trial is within the trial court's discretion. Gallagher v. Pa. Liquor Control Bd ., 883 A.2d 550, 557 (Pa. 2007). Accordingly, we review the trial court's ruling for an abuse of discretion. Id.
In its Opinion, the trial court addressed Kachmar's challenge to the bifurcation (and the resulting bench trial), and concluded that it lacks merit. Trial Court Opinion, 10/22/15, at 9-10 (addressing bifurcation), 10-11 (addressing the propriety of a bench trial in the underlying case). We agree with the sound reasoning of the trial court, as set forth in its Opinion, and affirm on this basis. See id.
In its Opinion, the trial court adopted, inter alia, the rationale set forth in its February 13, 2015 Order granting bifurcation. In that Order, the trial court stated the following:
A review of the underlying divorce action reveals that [Christine] Kachmar did not petition the court for a jury trial on the issue of spousal support, nor did the court issue such a ruling regarding a jury trial on any matter in the underlying divorce action.Trial Court Order, 2/13/15, at 1 n.1.
Kachmar next claims that the trial court erred in holding that the Pennsylvania Supreme Court's holding in Muhammad precluded a verdict in favor of Kachmar. Brief for Appellant at 9. Kachmar asserts that he "is not attempting to second-guess his attorney's settlement valuation. On the contrary, [he] contends strict settlement causative legal errors." Id. at 20. Kachmar contends that there is a "negligence exception" to the Pennsylvania Supreme Court's holding in Muhammad. Id. Kachmar argues in the alternative that Muhammad does not apply in this case. Id. According to Kachmar, "the settlement at issue regarded the divorce litigation[,] not Litvin's preparation and presentation of the defective postnuptial agreement—two distinct proceedings (i.e., transactional v. litigation)—necessarily distinguishing Muhammad 's rationale." Id.
"Our review of the trial court's decision after a non-jury trial is limited to determining whether the findings of the trial court are supported by the competent evidence and whether the trial court committed error in the application of law." Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa. Super. 2004). It is not our role to pass on the credibility of witnesses, as the trial court clearly is in the superior position to do so. Id.
As our Supreme Court has explained,
[a]n essential element to this cause of action is proof of actual loss[,] rather than a breach of a professional duty causing only nominal damages, speculative harm or the threat of future harm. [ Rizzo v. Haines , 555 A.2d 58,] 68 [(Pa. 1989)]. Damages are considered remote or speculative only if there is uncertainty concerning the identification of the existence of damages[,] rather than the ability to precisely calculate the amount or value of damages. Id. ....
* * *
[The plaintiff] must initially establish by a preponderance of the evidence that he would have recovered a judgment in the underlying action .... It is only after the plaintiff proves he would have recovered a judgment in the underlying action that the plaintiff can then proceed with proof that the attorney he
engaged to prosecute or defend the underlying action was negligent in the handling of the underlying action and that negligence was the proximate cause of the plaintiff's loss since it prevented the plaintiff from being properly compensated for his loss.Kituskie v. Corbman , 714 A.2d 1027, 1029-30 (Pa. 1998) (footnote omitted).
Here, the trial court determined that Christine Kachmar would not have been successful in setting aside the post-nuptial agreement. Trial Court Opinion, 3/18/15, at 9, 11. In addition, the trial court observed that Kachmar decided to settle the underlying litigation over the post-nuptial agreement, and fails to argue fraudulent inducement to enter into the settlement. Id. at 9-11. We agree with the sound reasoning of the trial court, in resolving these issues, and affirm on the basis of its March 18, 2015 Opinion with regard to these claims. See id. at 9-11; see also Trial Court Opinion, 10/22/15, at 6-9.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/17/2016
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