Attorney Malpractice • Pa.R.App.P. Rule 1925(b) Statement

Cruickshank-Wallace v. Klehr Harrison Harvey Branzburg & Ellers, LLP, PICS Case No. 13-3380 (C.P. Philadelphia Nov. 7, 2013) McInerny, J. (6 pages).

Plaintiff Bonnie Cruickshank-Wallance filed an action against defendant Klehr Harrison Harvey Branzburg & Ellers pursuant to their representation of plaintiff in a separate unrelated suit. Plaintiff asserted claims of breach of fiduciary duty, fraud, legal malpractice and breach of contract. Defendant answered and filed counterclaims against Plaintiff for unpaid legal expenses.

Defendant moved for summary judgment on all of plaintiff’s claims. The malpractice claim was granted, and as to the issue of damages on all other claims, assuming a finding of liability. Following a bench trial, the court found in favor of defendant on all of plaintiff’s claims, and against plaintiff on defendant’s counterclaim. Plaintiff filed a motion for post-trial relief, which was denied; defendant subsequently moved to have judgment entered against plaintiff on her claims as well as defendant’s counterclaim.

Plaintiff appealed to the Superior Court of Pennsylvania. She was ordered to file a Pa.R.App.P. 1925(b) statement, specifying that any issue not properly included would be deemed waived. Defendant also filed a cross-appeal (contingent on the Superior Court ordering a new trial on plaintiff’s appeal) for the denial in part of its motion for summary judgment, stating that plaintiff’s malpractice claim was denied for lack of proof of causation, also an element of all of plaintiff’s other claims, and that the trial court should have properly granted summary judgment on all of plaintiff’s claims. Defendant also argued that the trial court improperly excluded evidence the disciplinary and malpractice history of plaintiff’s expert witness.

Defendant filed a motion to dismiss plaintiff’s appeal based on her failure to file a timely 1925(b) statement. Plaintiff then filed for leave to file a 1925(b) statement nunc pro tunc, asserting that her failure to file a statement was due to a “staff malfunction” in plaintiff’s counsel’s office. Defendant argued that plaintiff’s excuse did not rise to the level of “extraordinary circumstance” necessary to grant leave to file a statement nunc pro tunc. Plaintiff’s motion and her appeal were denied.

Plaintiff then filed an appeal from the denial of her motion to file a 1925(b) statement nunc pro tunc. However, plaintiff again failed to file a 1925(b) statement in this appeal in a timely manner. Defendant motioned to have plaintiff’s appeal dismissed, which went unopposed by plaintiff. Defendant’s motion was granted.

Where plaintiff’s appeal had been dismissed, Defendant’s cross-appeal contingent on granting of new trial to plaintiff was rendered moot. Dismissed.