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CHARLOTTE M. MCPEAKE v. WILLIAM T. CANNON (01/26/89)

filed: January 26, 1989.

CHARLOTTE M. MCPEAKE, AS ADMINISTRATRIX OF THE ESTATE OF ROBERT T. MCPEAKE, DECEASED AND CHARLOTTE M. MCPEAKE, ON BEHALF OF ERINA JAMIE MCPEAKE, A MINOR BY CHARLOTTE AND ROBERT T. MCPEAKE AND CHARLOTTE M. MCPEAKE IN HER OWN RIGHT, APPELLANT
v.
WILLIAM T. CANNON, ESQUIRE, P.C.



Appeal from the Order entered February 2, 1988 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 173 August Term 1987

COUNSEL

Alberto Roldan, Harrisburg, for appellant.

Jeffrey B. Albert, Philadelphia, for appellee.

Brosky, Kelly and Hoffman, JJ.

Author: Hoffman

[ 381 Pa. Super. Page 228]

This appeal arises from the order of August 26, 1987, granting appellee's preliminary objections and dismissing

[ 381 Pa. Super. Page 229]

    appellants' complaint with prejudice. Appellants contend that the trial court erred in granting appellee's preliminary objections because the complaint set forth a valid claim of legal malpractice. For the reasons that follow, we affirm the order below.

On January 11, 1985, appellants' decedent was arrested for burglary, rape, indecent assault, corrupting the morals of a minor, and possession of an instrument of crime. Decedent retained the legal services of appellee to represent him on the above-mentioned charges. On August 18, 1986, after a jury found decedent guilty on all counts, he suddenly jumped from a closed fifth floor window of the courtroom and killed himself. Appellants filed a legal malpractice, wrongful death and survivors' action against appellee, alleging that appellee's negligent representation of decedent caused his fatal leap from the courtroom window after the jury found him guilty of rape. Appellants averred in their complaint eighteen instances of alleged negligent conduct on the part of appellee which led to decedent's conviction. Appellee filed preliminary objections in the nature of a demurrer.*fn1 The court granted appellee's preliminary objections and the complaint was dismissed with prejudice. This timely appeal followed.

A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless

[ 381 Pa. Super. Page 230]

    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 support the claim raised by the [complaint], a dismissal is improper . . . .

For the purpose of our review of a dismissal on the pleadings in the nature of a demurrer, the averments [in the complaint], except to the extent that they constitute conclusions of law, must be taken as true, Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978) . . . .

Cianfrani v. Commonwealth, State Employees' Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468, 469 (1984). See also Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 374 Pa. Super. 613, 615, 543 A.2d 1138, 1139 (1988); Aetna Electroplating ...


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