No. 1717 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, at No. 3696 September Term, 1973.
William L. Keller, Philadelphia, for appellant.
Glenn C. Equi, Philadelphia, for appellee.
Cercone, President Judge, and Spaeth and Lipez, JJ. Spaeth, J., concurs in the result.
[ 266 Pa. Super. Page 397]
This complaint in trespass was initiated by appellant, John F. Schenkel, who alleged that appellee, Herbert Monheit, Esq., negligently handled a tort action entrusted to him by appellant. The lower court granted appellee's motion for summary judgment in the instant case, because the court found that appellant was not damaged by appellee's alleged malpractice. We have reviewed the record and find that the decision of the trial court was justifiable. Therefore, we affirm the lower court's summary judgment for appellee.
Briefly stated, these are the facts upon which the instant case is based. On January 9, 1969, appellant was injured in an automobile accident when his vehicle was struck from behind by a car driven by one Charles Salem. Appellant
[ 266 Pa. Super. Page 398]
thereafter retained appellee as his attorney to prosecute appellant's civil action against Salem. When appellee filed this action, he did not join Salem's employer, Wintz Brothers Construction Company, as defendants. Appellant claims that at the time of the accident, Salem was "on the job" and was within the scope of his employment for Wintz Brothers and that Wintz Brothers should have been joined as defendants. Appellant's dissatisfaction with appellee's handling of the personal injury action led appellant to dismiss appellee before trial and retain other counsel to complete the case. New counsel filed the present malpractice action on appellant's behalf on September 19, 1973, well before the jury's verdict in the personal injury case, which verdict was returned on December 14, 1976. In the personal injury case, the jury awarded appellant $9,500.00 in damages. No appeal was taken challenging the adequacy of this verdict and, since Salem was insured for $10,000.00, appellant was able to collect the entire judgment from Salem's insurance company. The judgment was listed as satisfied on March 16, 1977.
Appellant now alleges that the jury would have awarded him a larger verdict in the personal injury action if the corporate employer had been joined as a defendant. In support of his contention, appellant refers to a conference called by Judge Stanley Greenberg, trial judge in the personal injury action. In attendance at this meeting were counsel for appellant and counsel for defendant Salem. (Appellee had no representative at that meeting.) Judge Greenberg, when informed of the pending malpractice suit, attempted to negotiate a settlement between appellant and Salem. During the negotiations, Judge Greenberg expressed the opinion that the case had a settlement value in the area of $75,000.00. Frank Jakobowski, an attorney from Salem's insurance company, said that he felt that if there were adequate insurance coverage, the case might have a settlement value of $25,000.00. Appellant claims that these two estimates establish that the jury verdict did not adequately cover his damages.
[ 266 Pa. Super. Page 399]
The issue of damage assessment in cases of professional negligence has not been squarely addressed by the appellate courts of this state, although other jurisdictions have treated this question. There are three essential elements which must be established ...