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May 24, 1985


The opinion of the court was delivered by: GILES


 This action arises out of Curtis G. Gans' claim that his former attorney, S. Simpson, Gray, committed legal malpractice in the course of prosecuting his personal injury action against the National Railroad Passenger Corporation ("AMTRAK") under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. (1976). See Gans v. National Railroad Passenger Corp., ("AMTRAK"), Civil Action No. 77-3883 (E.D. Pa. 1980) ("the underlying action"). Defendant has moved for summary judgment. For the following reasons, defendant's motion shall be granted.


 On November 11, 1977, Gans, by his counsel, Raynes, McCarty & Binder ("Raynes"), commenced the underlying action. The case was assigned by random selection to former United States District Court Senior Judge John Morgan Davis. In the underlying action, Gans sought compensatory damages for injuries allegedly sustained during the course of his employ as a trackman with AMTRAK. Specifically, Gans claimed that he sustained bodily injury when an AMTRAK bus, in which he and other AMTRAK employees responsible for railroad track maintenance were being transported to their assigned work area, was involved in an accident with a Southeastern Pennsylvania Transportation Authority ("SEPTA") bus.

 Following completion of the discovery phase of the underlying action and, on the eve of trial, Gans insisted that Raynes withdraw as his legal representative. Gans approached Gray about obtaining his legal services on or about November 20, 1979. Raynes subsequently transferred its entire file relating to the underlying action to Gray for his evaluation. On November 29, 1979, Raynes formally withdrew from the case and Gans was thereafter represented by Gray.

 In December 1979, Gans informed Gray that he had another potential cause of action against AMTRAK. Gans alleged that he had sustained further bodily injury in 1978 while lifting lumber during the course of his duties as a trackman for AMTRAK. Gray responded to Gans' new claim by filing the requisite motions to allow Gans to make his additional claim against AMTRAK. Senior Judge Davis granted Gans' motion for leave to amend his complaint and allowed plaintiff the opportunity to conduct limited discovery on the issue of Gans' new claim. Gray did in fact file an amended complaint adding Gans' second cause of action and conducted ample discovery of this issue. Gray Aff. at para. 12.

 Gray represented Gans during the entire trial of the underlying action. Both negligence causes of action asserted by Gans were submitted to a jury for its consideration. In responding to special interrogatories, the jury answered that AMTRAK was not negligent in either instance. See Exh. C-4 to Def. Mot. for Sum. Judg. Accordingly, on May 8, 1980, judgment was entered in favor of AMTRAK and against Gans. See Exh. B to Pl's Resp. to Def's Mot. for Sum. Judg.

 On May 19, 1980, Gray filed a motion for a new trial arguing that a finding of no negligence on the part of AMTRAK was against the weight of the evidence adduced at trial. Gray argued that the "mere fact that the [AMTRAK] bus hit the SEPTA bus from the rear on a day when the pavement was wet, and the driver of the bus knew it was wet" was sufficient evidence of negligence to warrant a new trial on the issue of liability. Exh. B to Pl's Mem. in Opp. to Def. Mot. for Sum. Judg. at 3.

 On March 5, 1981, Senior Judge Davis found that, although plaintiff had timely filed his motion for a new trial, he had failed to comply with Rule 34 of the Local Rules of Civil Procedure of the United States District Court for the Eastern District of Pennsylvania requiring that the moving party either order a transcript of the trial proceedings or file a motion to be excused from the requirement of ordering a transcript. *fn1" See Exh. C-6 to Def. Mot. for Sum. Judg. at 2. Gray not only failed to request a trial transcript, but he did not request leave to be excused from the provisions of Local Rule 34 until 165 days after expiration of the ten-day filing requirement. Finally, in a lengthy discourse, Senior Judge Davis ruled that, even if he had permitted plaintiff to proceed without the proper ordering of transcripts, the jury verdict in favor of AMTRAK was supported by the weight of the evidence. Exh. 6 to Pl's Mot. for Sum. Judg. at 5. Accordingly, he dismissed the action based on plaintiff's failure to comply adequately with the provisions of Local Rule 34. The order of dismissal was not appealed.

 Proceeding without counsel, Gans filed the instant action against Gray in February 1982. In May 1982, again acting pro se, Gans filed an amended complaint alleging certain acts or omissions by Gray which he believes give rise to several causes of action. *fn2" On November 22, 1983, Patrick T. Ryan, Esquire, through the Volunteer Lawyer's Action Program, entered his appearance on behalf of Gans. Ryan, acting as counsel to Gans, filed both plaintiff's pretrial memorandum and his memorandum in opposition to defendant's motion for summary judgment.

 Plaintiff's amended complaint alleges diverse and ill-defined causes of action against his former attorney. However, as a pro se litigant, Gans is entitled to a liberal construction of his lay-drafted pleading. Boag v. MacDougall, 454 U.S. 364, 365, 70 L. Ed. 2d 551, 102 S. Ct. 700 (1982); Bangert v. Harris, 553 F. Supp. 235, 238 (M.D. Pa. 1982). The amended complaint is sufficiently stated that this court can construe the pleadings as to do substantial justice. See Fed. R. Civ. P. 8(f).

 In his amended complaint, Gans refers to Gray's "intentional" misconduct during the course of his representation in the underlying action. While couched in terms of a constitutional argument for ineffective assistance of counsel under the sixth amendment, *fn3" plaintiff's action is best characterized as one for legal malpractice. *fn4"

 Plaintiff's amended complaint, when read in conjunction with his counsel's interpretation of its contents, reveals a string of alleged acts or omissions at each phase of the representation: pretrial, trial and post-trial. Gans' most significant claim is that Gray was negligent in failing to comply with the "transcript" provisions of Local Rule 34 and in not appealing from Senior Judge Davis' dismissal on these grounds. Plaintiff believes that because of Gray's omissions, he lost any post-trial remedy to vindicate his right to recovery against AMTRAK.

 In his motion for summary judgment, Gray asks this court to rule that as a matter of law his pretrial and trial conduct was not beyond the pale of reasonable conduct for an attorney in his position. Moreover, he alleges that he is entitled to judgment in his favor because there is no causal nexus between his conduct and any injury sustained by plaintiff. In a supplemental memorandum filed in support of his motion, Gray contends that Gans has simply failed to produce sufficient evidence to support his contentions as mandated under Fed. R. Civ. P. 56(e). With respect to the alleged post-trial failures, Gray does not assert that his non-compliance with the Local Rules of Civil Procedure was other than negligent. Rather, Gray maintains that any omission on his part did not result in any legally cognizable injury to plaintiff. In this respect, Gray rests on the proposition that Pennsylvania law requires proof of actual damages in a legal malpractice action. Gray argues that, since plaintiff has failed to produce evidence that he would have prevailed on the merits in any post-trial motion, a claim of actual damages is purely speculative. He maintains that the jury verdict in favor of AMTRAK was supported by the weight of the evidence, and hence, summary judgment in this action must be granted in his favor.

 In response to defendant's motion, plaintiff seems to agree that this action sounds in negligence. Gans has advanced the theory that proof of damages is not a part of plaintiff's prima facie case in a legal malpractice action. Plaintiff concedes that he must show that Gray owed him a duty, that such duty was breached and that such breach caused him injury. However, he asserts that it is Gray's burden to show that plaintiff has not suffered any appreciable harm as a result of defendant's negligent conduct. Under this theory, plaintiff is not required to prove that the underlying claim was meritorious. Rather, once duty, breach and causation are shown, the burden would shift to the defendant to show that plaintiff would not have succeeded in the underlying action.

 Nevertheless, plaintiff attempts to convince this court that he did have a meritorious claim in the underlying action. This contention is based primarily on the theory that the nature of the accident, a rear-end collision, must give rise to a irrebuttable presumption of negligence on the part of AMTRAK. In order to support his legal contentions, Gans has filed a sworn statement describing the alleged instances of malpractice. The only other relevant evidence supplied by plaintiff in opposition to the summary judgment motion is a copy of the jury instructions on the issue of the "sudden emergency doctrine."


 Under the principle set forth in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), this court is obliged to apply the substantive law of the forum state. Accordingly, we are bound by the decisional law of Pennsylvania. Although the courts of the Commonwealth have been faced with a steady rise in the number of professional malpractice cases, see Forage & McBride, Annual Survey of Significant Developments in the Law: Tort Law, 56 Pa. B.A.Q. 24, 35 (Jan. 1985), there is a dearth of reported case law dealing with the issue of attorney malpractice allegedly committed in the conduct of litigation. This is not to say, however, that there is an absence of established legal principles which guide this court.

 The Pennsylvania Supreme Court has acknowledged the legitimacy of an action in either assumpsit or trespass by a client against his attorney for malpractice. Guy v. Liederbach, 501 Pa. 47, 57, 459 A.2d 744, 748 (1983). However, the supreme court has yet to address either the specific elements required to prove such causes or the precise burden of proof assigned to the litigants.

 It is perhaps the confusion caused by the lack of supreme court precedent that has caused plaintiff to promote his somewhat novel theories on the applicable law. Plaintiff has proffered several arguments in support of his view that he does not have to show that he would have prevailed on the merits of the underlying action in order to succeed in this action. First, plaintiff argues that the instant case falls within the purview of section 323(a) of the Restatement (Second) of Torts (1965). *fn5" In interpreting section 323(a), the Pennsylvania Supreme Court held that the effect of this section is "to relax the degree of certitude normally required of plaintiff's evidence in order to make a case for the jury" as to defendant's liability. Hamil v. Bashline, 481 Pa. 256, 269, 392 A.2d 1280, 1286 (1978). Specifically, the court ruled that under the Restatement, once a plaintiff introduces evidence that defendant's negligent act increased the risk of harm to plaintiff, and that harm was in fact sustained, it is for the jury to determine whether "that increased risk was a substantial factor in producing the harm." Id. It appears that plaintiff believes this relaxed burden of proof on the issue of causation will enable him to overcome defendant's motion for summary judgment. Plaintiff's theory on the applicability to and the effect of this section of the Restatement on the instant case is fatally flawed.

 The language of the Restatement indicates that a plaintiff under this section must have suffered a physical injury resulting from the negligent rendition of services, whether gratuitous or contracted for. In the instant case, plaintiff seeks damages for injuries resulting from the negligent rendition of contracted for legal services. However, he does not assert any physical injury. Plaintiff has also failed to direct this court to any Pennsylvania decision applying section 323(a) to a legal malpractice case. In Hamil, the very case cited by plaintiff, the court applied section 323(a) to a medical malpractice case. The Pennsylvania Supreme Court limited its holding in Hamil to cases where the issue is "the adequacy of medical services rendered in a fact ...

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