Paul J. Abeln v. Mary J. B. Eidelman, Esq., PICS Case No. 14-0117 (C.P. Lehigh Nov. 8, 2013) Ford, J. (13 pages).

COURTS OF COMMON PLEAS

The Legal Intelligencer

LEGAL PROFESSION

Attorney Malpractice • Attorney Fee Recovery

Paul J. Abeln v. Mary J. B. Eidelman, Esq., PICS Case No. 14-0117 (C.P. Lehigh Nov. 8, 2013) Ford, J. (13 pages).

Plaintiff Paul J. Abeln appealed the court's granting of summary judgment in favor of co-defendant Richard Huntington Pepper. Summary judgment affirmed.

Abeln brought a legal malpractice action against co-defendant Mary J. B. Eidelman and Pepper following a custody dispute. Abeln claimed that the defendant-attorneys are collectively responsible for diminishing through court orders his custody rights to his minor son. On March 29, 2007, Eidelman was the first attorney retained to represent Abeln in the custody case which resulted in two agreed interim orders for custody of his son. On November 16, 2007, Abeln consulted with Pepper and released Eidelman as his counsel requesting she adjourn the custody trial and consult with Pepper; a written retainer agreement was not signed with Pepper until December 3, 2007. As the retainer was not yet signed on the date of the custody trial, Abeln acted pro se and signed another interim custody arrangement. At the adjourned trial date, Abeln, along with Pepper, signed another agreed custody order; Abeln attributed the last order to malpractice.

Following discovery, defendant-attorneys sought summary judgment which was granted by the court; the judgments were not appealable at that point as Pepper had an unresolved counterclaim for attorney fees. The court further severed the malpractice claims against Eidelman and Pepper; Abeln appealed the severance which remains pending. On September 6, 2013, the court entered judgment in favor of Pepper on his counterclaim for counsel fees.

Abeln appealed the judgment as well as the summary judgment order arguing four claims of errors: (1) improper granting of summary judgment in favor of Pepper; (2) ignored credible evidence; (3) summary judgment deprived Abeln of his "only viable defense to Pepper's counterclaim for attorney fees"; and (4) failure to find negligence in Pepper's omission of a qualified psychologist's testimony.

The court upheld summary judgment in favor of Pepper as the custody order was based on Pepper's legal judgment and with Abeln's informed consent prior its entry. Such decision is supported by Muhammad v. Strassburger, 526 Pa. 541, 546 (1991) which precluded a malpractice action where a settling client merely alleged that a settlement resulted from a "deficiency in the lawyer's exercise of his or her professional judgment." Summary judgment was further upheld as the court did not agree that credible evidence was ignored, nor was the court required to take into account a letter opined by a legal malpractice expert. Further many of the "credible evidence" reverted back to the argument of failed legal strategy which the court already held were not grounds for malpractice under Muhammad. As to the third allegation, the court held there was no substance and upheld summary judgment. Finally, summary judgment remained upheld with the court holding that the fourth allegation was continuous of Pepper's legal strategy and therefore not grounds for malpractice. The court upheld summary judgment in favor of Pepper.