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Vadovsky v. Treat

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


September 21, 2010

ROBERT VADOVSKY, PLAINTIFF
v.
JEFFREY S. TREAT AND LAW OFFICES OF JEFFREY S. TREAT, DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 21st day of September, 2010, upon consideration of the report of the magistrate judge (Doc. 54) recommending that defendants' motion (Doc. 47) for summary judgment pursuant to FED. R. CIV. P. 56(c) be granted, and upon further consideration of the objections (Doc. 61) to the report filed by plaintiff Robert Vadovsky ("Vadovsky"),*fn1 and the response (Doc. 62) filed by defendants, and, following an independent review of the record, it appearing that Vadovsky has failed to provide an expert witness report*fn2 for his claims of legal malpractice, breach of contract, and breach of fiduciary duty,*fn3 and it further appearing that an expert witness report is necessary to prove the standard of care and a breach of said standard for legal malpractice,*fn4 see Storm v. Golden, 538 A.2d 61, 64 (Pa. Super. Ct. 1988) (necessity of expert testimony to establish legal malpractice), except in certain clear and obvious circumstances not present in the instant matter, see Rizzo v. Haines, 555 A.2d 58, 66 (Pa. 1989) (explaining that "the ordinary experience and comprehension of lay persons" is sufficient where the issues are "simple, and the lack of skill obvious"),*fn5 and it further appearing that, with respect to the one claim in which an expert witness report would not be necessary,*fn6 Vadovsky has failed to set out a prima facie case by failing to show injury caused by the alleged malpractice, and the court finding that Vadovsky failed to put forth sufficient evidence that defendant Jeffrey S. Treat ("Treat") breached any fiduciary duties to Vadovsky, see Destefano & Associates, Inc. v. Cohen, No. 2775 June Term 2000, 2002 WL 1472340 at *3 (Pa. Comm. Pl. May 23, 2002) (citing Commonwealth Dep't of Transp. v. E- Z Parks, Inc., 620 A.2d 712, 717 (1993) (noting that to succeed on a breach of fiduciary duty claim plaintiff must show the existence of a fiduciary duty and a breach of that duty, and holding that a fiduciary duty is "a duty to act for someone else's benefit, while subordinating one's personal interest to that of the other person")),*fn7 and the court noting that there is no evidence that any contractual term between Vadovsky and Treat was breached,*fn8 and the court concluding that there is no genuine issue of material fact, and that defendants are entitled to judgment as a matter of law, it is hereby ORDERED that:

1. The report of the magistrate judge (Doc. 54) is ADOPTED.

2. Defendants' motion for summary judgment (Doc. 47) is GRANTED. See FED. R. CIV. P. 56(c).

3. The Clerk of Court is directed to enter JUDGMENT in favor of defendants and against plaintiff on all claims.

4. The Clerk of Court is directed to CLOSE this case.

CHRISTOPHER C. CONNER United States District Judge


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