The opinion of the court was delivered by: J. WILLIAM DITTER, JR.
In 1988, plaintiff, Paul Boerger, hired defendant, attorney Richard Levin, to represent him in a mortgage foreclosure action. That case is pending in this court as Boerger, et al. v. Clearbrook Properties, et al., No. 88-CV-5396, before the Honorable Lowell A. Reed, Jr. In August, 1992, Judge Reed stayed the Boerger litigation when Clearbrook filed for bankruptcy. The stay remains in effect.
I will grant Levin's motion to dismiss on the ground of non-justiciability. Since the underlying suit in which Levin represented Boerger has not yet been adjudicated, Boerger cannot show that Levin's performance proximately caused his injury or even that he was injured at all.
"When it is alleged that an attorney has breached his professional obligations to his client, an essential element of the cause of action . . . is proof of actual loss." Duke & Co. v. Anderson, 275 Pa. Super. 65, 418 A.2d 613, 617 (Pa. Super. Ct. 1980). See also Gans v. Gray, 612 F. Supp. 608, 617 (E.D. Pa. 1985) (approving Pennsylvania Superior Court holdings that legal malpractice plaintiffs must prove actual loss resulting from defendants' conduct). While Boerger expects to lose money from the bankruptcy court's distribution of the Clearbrook estate, "the mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm -- not yet realized -- does not suffice to create a cause of action for negligence. . . . Until the client suffers appreciable harm as a consequence of his attorney's negligence, the client cannot establish a cause of action for malpractice." Budd v. Nixen, 6 Cal. 3d 195, 491 P.2d 433, 436, 98 Cal. Rptr. 849 (Ca. 1971); see Fort Myers Seafood Packers, Inc. v. Steptoe and Johnson, 127 U.S. App. D.C. 93, 381 F.2d 261, 262 (D.C. Cir.), cert. denied, 390 U.S. 946, 19 L. Ed. 2d 1135, 88 S. Ct. 1033 (1967).
This case is even clearer than Bowman v. Abramson, 545 F. Supp. 227 (E.D. Pa. 1982). In that case, summary judgment had been entered against a medical malpractice plaintiff in an underlying suit. While the judgment was pending on appeal, plaintiff sued his lawyer for malpractice. Judge Newcomer dismissed the suit for lack of a justiciable controversy, holding that the underlying medical case may yet be decided on appeal in plaintiff's favor. See id. at 228. Similarly, in Garcia v. Community Legal Services Corp., 362 Pa. Super. 484, 524 A.2d 980 (Pa. Super. Ct. 1987), appeal denied, 538 A.2d 876 (Pa. 1988), the court stated in dicta that were a jury award to be stayed pending appeal, a suit by the losing party against his attorney for malpractice may be non-justiciable until the appeal process was complete and the stay lifted. See id. at 987. These cases stand for the proposition that until a client's loss is enforceable against him, the client cannot sue his lawyer for malpractice.
I will also dismiss without prejudice Boerger's demand for the accounting of fees. Although Boerger requests fee clarification in a separate count of his complaint, I find the request is an integral part of the malpractice claim and is similarly unripe.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 812 F. Supp. 564.
AND NOW, this 11th day of February, 1993, plaintiff's complaint is hereby ...