The Pennsylvania Supreme Court has denied the appeal of a former Pietragallo Gordon Alfano Bosick & Raspanti client who saw his $525,000 legal malpractice award against the firm overturned.
In a one-paragraph order Tuesday, the state’s high court denied the petition for allowance of appeal in Lewis v. Pietragallo Gordon Alfano Bosick & Raspanti, about seven months after the Pennsylvania Superior Court agreed the verdict against the law firm should be vacated.
In September 2011, an Allegheny County Court of Common Pleas jury found Pietragallo Gordon breached its contract to plaintiff Robert J. Lewis by allowing a cohabitation agreement Lewis signed to provide for annual payments to his girlfriend in the event of a breakup rather than the one-time lump-sum payment Lewis preferred. The jury found Lewis didn’t breach his end of the contract and awarded him $525,000 in damages.
But the trial court, in granting judgment notwithstanding the verdict in August 2012, found the evidence didn’t support the jury’s verdict because Lewis failed to read a note from a Pietragallo Gordon attorney saying two versions of the contract were provided for him to sign—one with a lump-sum clause and another providing for annual payments.
A three-judge panel of the Superior Court then affirmed last December the trial judge in a memorandum opinion, ruling it was in fact Lewis who breached the contract rather than Pietragallo Gordon.
“As the trial court states, ‘communication is a two-way street,’” Judge Kate Ford Elliott had said for the Superior Court. “We agree that Lewis breached the contract with [Pietragallo Gordon] by failing to read critical correspondence from attorney [Jaci] Kelleher and failing to read or seek clarification of the unfinished document prior to signing it.”
The court further ruled Lewis failed to prove actual damages. Ford Elliott said Lewis’ girlfriend at the time, Jill Neely, wanted the annual payments in the event their relationship ended. Ford Elliott said there was no indication Neely would have agreed to the lump-sum payment Lewis preferred.
Maurice A. Nernberg Jr. of Nernberg & Associates in Pittsburgh represented Lewis. He said he was disappointed in the Supreme Court’s decision not to take the case because there are a few memorandum opinions from the Superior Court on this issue that seem to place the onus on the plaintiff to prove the other party would have agreed to what the plaintiff argued his lawyer should have done.
Nernberg said these rulings make it “almost” “impossible” to bring certain lawsuits against attorneys. Nernberg said the Superior Court wanted Lewis to prove Neely would have signed the contract as Lewis wanted it written. But Nernberg said Lewis wouldn’t have signed the contract knowing it was written as Neely wanted it to be. Nernberg also noted the court didn’t give Lewis a chance to prove Neely would have signed it with the lump-sum clause, but simply determined he couldn’t prove that.
James R. Schadel of Weinheimer, Schadel & Haber in Pittsburgh represented Pietragallo Gordon. He said the lower appellate court’s opinion in this case is important because it serves to show that a client who failed to read a contract a lawyer prepared for him cannot then say the lawyer was negligent in drafting the contract.
“The courts got it right,” Schadel said.
According to the Superior Court’s opinion, Lewis hired Pietragallo Gordon in 1995 to prepare a cohabitation and custody agreement with Neely. The two had a son together and Neely was living in New Mexico with the child. Lewis wanted the two to move to live with him in Pittsburgh but didn’t want to marry Neely or be considered to have a common-law marriage with her, Ford Elliott said.
Several drafts of the agreement were generated and the issue of lump-sum or annual payments became one of contention. Neely had rejected the version with the lump-sum payment clause. She later contacted a Pietragallo Gordon attorney and informed the attorney Lewis had changed his mind and agreed to the annual payments, according to the opinion.
Pietragallo Gordon sent a handwritten letter to Lewis enclosing two drafts of the agreement—one with the lump-sum clause and the other with the annual payments clause. In the letter, the attorney said both versions were included and that Lewis should choose which version he wanted to sign. Lewis didn’t read the letter and signed the document and mailed it to Neely, Ford Elliott said. Neely signed the portion with the annual payments and sent it back to Lewis, who signed the final draft.
When the couple split up in 2003, Neely made claims to the trial court for annual payments. That dispute was later settled in arbitration and Lewis then sued Pietragallo Gordon for breach of contract, legal malpractice and breach of fiduciary duty, according to the opinion.
The trial court granted the law firm’s motion for summary judgment based on a statute of limitations argument. Lewis appealed and an earlier panel of the Superior Court ruled in 2009 that the breach of contract claim could survive summary judgment. The case went to trial on that sole count.