No. 108 E.D. Appeal Docket 1984, Appeal from the judgment of the Superior Court dated March 23, 1984 in No. 69 Philadelphia 1982, affirming a judgment of the Court of Common Pleas of Bucks County entered in No. 80-10603-06-1.
A.B. Kyle, I.P.P., pro se.
Paul J. Gelman, Howland W. Abramson, Charles W. Johns, Philadelphia, for appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty and Papadakos, JJ., join in this majority opinion and also join in Hutchinson's, J., concurring opinion. Hutchinson, J., joins in this majority opinion and also files a concurring opinion.
Appellant seeks review of the Superior Court's affirmance, 325 Pa. Super. 623, 473 A.2d 685, of the order of the Court of Common Pleas of Bucks County sustaining defendants' preliminary objections in the nature of a demurrer. Because we find error in the decisions of both lower courts, we reverse and remand.
In his Complaint, Appellant alleged that he had enlisted the services of the Appellees, Nathan Criste and his law firm, to prosecute a private criminal action against the Appellant's wife's paramour. The Complaint further alleged
that Appellee Criste, upon interviewing Appellant, informed him that it would be necessary for Appellant to make a full and candid disclosure of all matters touching on the prosecution. At that point, it was alleged, Appellant and Appellee Criste agreed that in consideration of this disclosure, Appellees, having been retained as counsel, would not accept future legal employment inconsistent or in conflict with the confidential information given to them by the Appellant. Subsequent to this alleged agreement, Appellee Criste accepted an appointment as a Master in the divorce proceedings instituted by Appellant's wife against Appellant. Having asserted these facts, the Appellant filed suit against Appellees in assumpsit claiming a breach of the agreement not to accept legal employment inconsistent with Appellant having disclosed confidential information to them. The Appellees filed preliminary objections in the nature of a demurrer and a motion to strike the Complaint. These objections were sustained by the lower court, affirmed by the Superior Court, and are now before us for review.
The standard of review of an appellate court in passing on a challenge to the sustaining of a preliminary objection in the nature of a demurrer was recently stated in Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461, 462 (1983), quoting Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-33 (1983) as follows:
All material facts set forth in the Complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).
The Appellees' first assert by way of demurrer that the Complaint failed to establish the ...