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09/30/97 WINSTON J. BANKS VS JEROME TAYLOR &

September 30, 1997

WINSTON J. BANKS, APPELLANT VS JEROME TAYLOR & ASSOCIATES & JOSEPH FINEMAN, ESQUIRE


Appeal from the Order entered December 5, 1996 docketed December 12, 1996 in the Court of Common Pleas of Philadelphia County, Civil No. 9412-2656. Before MANFREDI, J.

Before: Cirillo, P.j.e., and Ford Elliott and Hester, JJ. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

Filed September 30, 1997

OPINION BY CIRILLO, P.J.E.:

Winston J. Banks appeals from the order entered in the Court of Common Pleas of Philadelphia County granting appellees', Jerome Taylor & Associates and Joseph Fineman, Esquire (defendants below), motion for summary judgment. See Pa.R.A.P. 341; Pa.R.C.P. 227.1, note. We affirm.

In reviewing an order granting a motion for summary judgment, an appellate court must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Merriweather v. Philadelphia Newspapers, Inc., 453 Pa. Super. 464, 684 A.2d 137 (1996) (citation omitted). See generally Pa.R.C.P. 1035.2, 42 Pa.C.S.A.

In conformance with the above standard, the facts read in a light most favorable to the non-moving party are as follows: Banks retained Joseph Fineman, a member of the firm Jerome Taylor & Associates (the Taylor firm), to represent him in a personal injury lawsuit arising out of a motor vehicle accident. Mr. Fineman subsequently filed suit in the Eastern District of Pennsylvania against the driver and the driver's insurance company. Two settlement conferences were held before the Honorable E. Mac Troutman. At the first conference, Banks rejected an offer of $90,000.00, but at a subsequent conference Banks agreed to accept a settlement offer of $95,000.00. Judge Troutman then marked the case settled and dismissed the suit pursuant to E.D.Pa. Loc.R.Civ.P. 45. Banks then executed a release against the driver of the vehicle and his insurance company.

Two weeks after the suit had been settled, Banks wrote a letter to Judge Troutman asking him to set aside the settlement agreement because he had not yet received payment thereunder. Approximately one week after writing Judge Troutman, Banks filed a complaint with the Disciplinary Board of the Pennsylvania Supreme Court alleging that Mr. Fineman had promised him payment within one week of settlement and had failed to deliver payment within that time. On October 21, 1994, approximately six weeks after the settlement agreement was executed, Mr. Fineman notified Banks that the settlement check had arrived. Banks then retrieved the settlement check, less counsel fees and costs, and deposited the tendered funds in his account.

In December of 1994 Banks filed the instant legal malpractice action against Mr. Fineman and the Taylor firm. Banks alleged that he was induced to settle because Mr. Fineman promised him that he would receive payment within one week of settlement and a new position of employment with SEPTA, Banks' former employer, neither of which occurred. Fineman and the Taylor firm then filed a motion for summary judgment which was granted. This appeal followed. Banks presents the following issues for our consideration:

1. Whether an attorney's promise of a job and assurance that appellant would get his settlement check within one week served as sufficient inducement to coerce appellant to enter [into] a settlement in his personal injury action?

2. Whether an attorney's promise of a job to induce appellant to enter into a settlement agreement constituted legal malpractice?

Our standard of review is well settled. This court will only reverse the trial court's entry of summary judgment where there was an abuse of discretion or an error of law. Merriweather, 453 Pa. Super. at 470, 684 A.2d at 140. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2, 42 Pa.C.S.A. In determining whether to grant summary judgment a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the nonmoving party. Id. Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id.

Initially, we feel compelled to comment upon the litigants' interpretations of the state of the law governing legal malpractice actions arising out of settlement agreements. In order to do so, however, we must first briefly recount the development of this area of the law. In Muhammad v. Strassburger et al., 526 Pa. 541, 587 A.2d 1346 (1987), the Supreme Court of Pennsylvania held that a client is foreclosed from claiming legal malpractice due to dissatisfaction with the monetary terms of a settlement agreement. This rule was premised upon numerous policy considerations iterated as follows:

Id. at 552, 587 A.2d at 1351. The Muhammad court did, however, leave open the courthouse doors for relief for clients who could prove that they were fraudulently induced into agreeing to ...


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