Appeal from the Order entered January 13, 1987 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD84-6520.
Kenneth W. Behrend, Pittsburgh, for appellants.
James R. Schadel, Pittsburgh, for appellees.
Brosky, Del Sole and Hoffman, JJ.
[ 374 Pa. Super. Page 614]
This appeal is from the order below sustaining a demurrer and entering judgment in favor of appellees in a legal malpractice action. Appellants contend that the trial court erred in concluding that their cause of action is barred by this Court's prior decision in Muhammad v. Children's Hosp. of Pittsburgh, 337 Pa. Superior Ct. 635, 487 A.2d 443 (1984). For the reasons that follow, we reverse the order below and remand the case for proceedings consistent with this opinion.
The relevant procedural history, as summarized by the trial court, is as follows:
This matter is before the court on the third preliminary objections of [appellees] to [appellants'] complaint and on [appellants'] petition for change of venue in a legal malpractice action.
[Appellants] are the parents of Nazir Muhammad, who was born on November 7, 1977 and died shortly thereafter.
In November of 1977, an incomplete circumcision was performed on Nazir Muhammad at Magee-Womens Hospital.
[ 374 Pa. Super. Page 615]
On December 16, 1977, Nazir Muhammad was operated upon again to complete the removal of his foreskin. As a consequence of the preparation for general anesthesia, he suffered pulmonary edema and died three days later in the Children's Hospital at Pittsburgh, Pennsylvania.
In March, 1978 [appellants] employed [appellee] James Thomas, Jr., [Esq.] to represent them. In October of the same year, [appellants] retained and employed [appellee] law firm and the individual member of that firm to prosecute [appellants'] claim.
On November 18, 1978, [appellees] filed a notice of Complaint with the Medical Arbitration Board against Children's Hospital, and Stewart E. Price, Jr. (the urologist performing the second circumcision) and Helen Westman (the anesthesiologist attending the decedent). In April of 1979, an action was filed against the same defendants in the Court of Common Pleas of Allegheny County.
Due to [appellees'] representation and advice to [appellants], [appellants] agreed as a result of a pretrial conciliation before Judge Wekselman, to accept a settlement offer in the amount of $26,500.00.
[Appellants] thereafter became dissatisfied with the settlement to which they had agreed and attempted to have the Court prevent enforcement of the settlement. The original complaint states that the Court by Order entered the 23rd day of April, 1982 confirmed the settlement and that the Superior Court of Pennsylvania [affirmed the order] on November 23, 1984.
[Appellants] filed the action presently before the Court by praecipe on April 19, 1984. The complaint in this matter was filed on or about April 2, 1986.
Trial Court Opinion at 1-2 (footnote omitted).
The complaint set forth eight counts of allegedly wrongful conduct, deriving from appellees' prior legal representation of appellants. Appellees then raised preliminary objections in the nature of a demurrer to all counts of
[ 374 Pa. Super. Page 616]
appellants' complaint. The trial court noted that the issue presented was "whether [appellants'] cause of action is barred by the prior opinion of the Superior Court in this matter." Id. at 6. The court, without discussion, then entered an order sustaining appellees' demurrer and entering judgment in favor of appellees. This appeal followed.
A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hosp. of Phila., 439 Pa. 501, 267 A.2d 867 (1970). Therefore, if any theory of law will ...