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JOHN MCHUGH AND JOAN MCHUGH v. LITVIN (09/19/88)

filed: September 19, 1988.

JOHN MCHUGH AND JOAN MCHUGH, HUSBAND AND WIFE
v.
LITVIN, BLUMBERG, MATUSOW & YOUNG, A PROFESSIONAL ASSOCIATION. APPEAL OF JOAN MCHUGH



Appeal from the Order entered May 12, 1987 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4421 February Term 1983

COUNSEL

William P. Murphy, Philadelphia, for appellant.

Joseph H. Foster, Philadelphia, for appellee.

Olszewski, Kelly and Hoffman, JJ.

Author: Hoffman

[ 379 Pa. Super. Page 97]

This appeal is from the order below entering summary judgment in favor of appellee in a legal malpractice action. Appellant contends that the trial court erred in granting summary judgment in favor of appellee (1) on the ground that appellant's underlying cause of action was not, at the time it arose, justiciable under Pennsylvania law, and (2) by ignoring the alternate federal common law basis for her claim. For the reasons that follow, we agree with the trial court that appellee was entitled to summary judgment and, accordingly, we affirm the order below.

The relevant procedural history, as summarized by the court below, is as follows:

On May 12, 1987, this Court granted Partial Summary Judgment in favor of [appellee] law firm Litvin, Blumberg, Matusow and Young (hereinafter "Litvin"), by entering judgment in its favor against Joan McHugh, [appellant], holding that a prima facie case of professional malpractice fails when [appellant] could not have succeeded in the underlying suit, her claim for loss of consortium to have been non-existent at the time her cause of action accrued . . . .

On February 12, 1971, [appellant's husband] John McHugh seriously hurt his back, having fallen on an obstruction aboard the barge Argoil 150, during the course of his employment as a tankerman. [In 1973,] through his attorney, Joseph Boardman, Esquire, . . . John McHugh brought suit against his employer, Interstate Oil Company, and Mobil Oil Company under the general maritime law and the Jones Act . . . . [In 1974,] Boardman [also] filed, on behalf of both John McHugh and his wife, Joan, another [action] . . . against Interstate Oil Company, Mobil Oil Company and E.W. Saybolt, Inc.

[ 379 Pa. Super. Page 98]

Boardman later referred the McHugh case to [appellee] Litvin, which entered its appearance for [the McHughs] on July 5, 1974.

It is alleged, however, that Litvin conducted [the McHughs'] cases in a negligent and careless manner; as a direct result thereof, [both actions were dismissed with prejudice] . . . .

After the dismissals were affirmed on appeal, [the McHughs] retained new counsel, who instituted the present action against Litvin, alleging that negligence and breach of contract by Litvin caused [the McHughs] to lose their rights to recover from Interstate Oil, Mobil Oil, and E.W. Saybolt for John McHugh's injuries sustained on February 12, 1971. [Appellant] Joan McHugh's sole allegation as to damages sustained by her is for the loss of her husband's consortium. Respecting that claim, Litvin moved this Court for entry of summary judgment in its favor, against [appellant] Joan McHugh, upon the ground that Pennsylvania law did not ...


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