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GANS v. MUNDY (05/31/85)

May 31, 1985

GANS, CURTIS, G., APPELLANT
v.
MUNDY, JAMES F. AND THE LAW FIRM OF RAYNES, MCCARTY, BINDER & MUNDY



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 83-1447).

Aldisert, Chief Judge, Sloviter and Mansmann,*fn* Circuit Judges.

Author: Aldisert

ALDISERT, Chief Judge.

This appeal from an award of summary judgment in favor of a law firm and one of the firm's partners on a claim of legal malpractice requires us to decide whether, in moving for summary judgment, appellees were obligated to offer expert evidence on the professional standard of care and whether the district court properly adjudicated the case as a matter of law. We conclude that the district court committed no error and we therefore affirm.

I.

This malpractice action tried in diversity under Pennsylvania law stems from an underlying claim of personal injuries made by Curtis G. Gans as the result of an accident on October 20, 1977. Gans was then an employee of the National Railroad Passenger Corporation (Amtrak). He and others suffered personal injuries while commuting to work on a bus owned and operated by Amtrak when that bus struck the rear of a bus owned and operated by the South Eastern Pennsylvania Transportation Authority (SEPTA). Gans retained appellees -- James F. Mundy and the law firm of Raynes, McCarty, Binder & Mundy -- to represent him in his claim.

The appellees filed a law suit against Amtrak but not against SEPTA. Thereafter, Gans returned to work and sustained another injury on November 2, 1978. Settlement conferences pertaining to the bus accident followed, at which time Gans was offered $12,500. He was not satisfied with this offer. Later he expressed dissatisfaction with the Mundy firm, terminated his relationship with it, and obtained successor counsel. Gans's successor counsel amended the original complaint by adding a second count of negligence against Amtrak based on appellant's second injury sustained on November 2, 1978. The case proceeded into a two-week trial that resulted in a defense verdict on both counts. Gans then sued his original law firm and James F. Mundy on the basis of legal malpractice. The district court entered summary judgment in favor of the law firm. Gans appeals.

II.

On appeal Gans raises four issues: that appellees committed legal malpractice by (1) failing to make SEPTA a party in the original litigation; (2) failing to keep appellant advised about the progress of his case; (3) advising him that his claim against Amtrak was worth more than Amtrak's settlement offer which caused him to reject the offer; and (4) failing to bring a second action against Amtrak based on Gans's second alleged injury. Throughout Gans's argument runs the theme that genuine issues of material fact existed that should have been resolved by a jury.

Our standard of review of the district court's award of summary judgment is well settled:

On review the appellate court is required to apply the same test the district court should have utilized initially. Inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion. The non-movant's allegations must be taken as true and, when these assertions conflict with those of the movant, the former must receive the benefit of the doubt.

Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) (footnote omitted), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). And, of course, we review the record to determine whether the district court properly concluded that "no genuine issue as to a material fact remain(ed) for trial, and that the moving party (was) entitled to judgment as a matter of law." Id.

III.

Under Rule 56, Federal Rules of Civil Procedure, the moving party has the "burden of showing the absence of a genuine issue as to any material fact . . . ." Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1969). Rule 56(e) requires that "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." F.R. Civ. P. 56(e).

This court has held that "a party resisting a (Rule 56) motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). We also have emphasized that "summary judgment has been characterized as a 'drastic remedy' . . . and that courts are to resolve any doubts as to existence of genuine issues of fact against the moving parties . . . ." Id. (citations omitted). In those negligence actions where the evidence is in dispute, questions of breach of duty and causation appropriately are resolved by the trier of fact. However, "although questions of negligence are usually reserved for the factfinder, summary judgment is proper where the facts are undisputed and only one conclusion may reasonably be drawn from them." Flying Diamond Corp. v. Pennaluna & Co., 586 F.2d 707, 713 (9th Cir. 1978). In such an instance, determination of negligence becomes a matter of law. Id.

The parties agree that Pennsylvania malpractice law governs the substantive aspects of this case and the panel is unanimous in the statement of relevant controlling precepts of substantive law. Elements of this tort under Pennsylvania law are "(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." Schenkel v. Monheit, 266 Pa. Super. 396, 399, 405 A.2d 493, 494 (1979) (quotation omitted). The standard of care to which an attorney must adhere is measured by the skill generally possessed and employed by practitioners of the profession . See Denardo v. Carneval, 297 Pa. Super. 484, 444 A.2d 135 (1982). "An attorney is presumed to have discharged the duties of his representation until the opposite has been made to appear." Mazer v. Security Insurance Group, 368 F. Supp. 418, 422 (E.D. Pa. 1973), aff'd mem., 507 F.2d 1338 (3d Cir. 1975). Under Mazer, an attorney's considered decision involving at a minimum the requisite exercise of "ordinary skill and capacity," and which is an "informed judgment," does not constitute malpractice. An attorney's conscious exercise of such judgment, "even if subsequently proven to be erroneous, is not negligence. . . . There is no presumption that an attorney has been guilty of a want of care, arising merely from a bad result." Id.

IV.

Initially, we must address an issue raised at oral argument that appellees, as the parties moving for summary judgment, were required to include in the moving papers expert evidence as to the standard of care. This issue arises primarily because of our decision in Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474 (3d Cir. 1979). where we affirmed a district court's involuntary dismissal of a legal malpractice action. The action was dismissed on defendants motion ...


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