No. 2942 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil Action Law, No. 76 0688 06-1.
Galen D. Hawk, Philadelphia, for appellant.
David Freeman, Philadelphia, for appellees.
Price, Cavanaugh and Watkins, JJ. Watkins, J., dissents.
[ 279 Pa. Super. Page 545]
This appeal from the order of the trial court sustaining appellees' preliminary objections raises the novel question in Pennsylvania whether a devisee may maintain a cause of action for legal malpractice against counsel for the testator when the devise fails due to improprieties in the execution of the will. We hold that such an action may be maintained and accordingly, we reverse the order of the court of common pleas.
The pertinent facts are as follows. Appellant's decedent (hereinafter plaintiff) filed a complaint in trespass and in assumpsit on January 23, 1976, alleging that on February 24, 1957, she attested the will of Edward J. Kent, Jr., which was prepared by appellee Harry J. Liederbach, counsel for Mr. Kent. The will directed that she receive the residue of the estate, after payment of a $4,500 bequest, and it nominated her to be the executrix. At the time of the execution of the will and at his death, the testator owned a parcel of real estate in Avalon, New Jersey. In 1974, a probate court in Camden County, New Jersey, citing a New Jersey statute,*fn1
[ 279 Pa. Super. Page 546]
ruled that plaintiff was barred from taking under the will because she was an attesting witness. Her complaint alleged that the demise of the devise was caused by the negligence of appellee Liederbach in "directing" and "advising" her to be an attesting witness to the will while knowing that the testator was seized of real property in New Jersey, and she sought damages from appellees in an amount in excess of $10,000.
Appellees filed preliminary objections in the nature of a demurrer and alleged that the suit could not be maintained because: (1) no privity existed between plaintiff and appellees; and (2) the decision of the New Jersey court constituted collateral estoppel. The court of common pleas, in sustaining appellees' preliminary objections and dismissing the complaint, concluded that the suit was precluded due to a lack of an attorney-client relationship between plaintiff and appellees.
On appeal, appellant urges this court to adopt "the modern trend of recent decisions disposing of the instant question" and hold that an injured party may maintain a cause of action against an attorney regardless of the existence of privity of contract. We agree with appellant and conclude that the better view is to allow the maintenance of such a suit in accordance with the principles set forth herein.
Initially, we note that when considering preliminary objections in the nature of a ...