United States District Court, E.D. Pennsylvania
ETTINGER & ASSOCIATES, LLC, NEIL D. ETTINGER, ESQUIRE, Plaintiffs
THE HARTFORD/TWIN CITY FIRE INSURANCE COMPANY, Defendant
For ETTINGER &
ASSOCIATES, LLC, NEIL D. ETTINGER, ESQUIRE, Plaintiffs: NEIL D. ETTINGER, LEAD
ATTORNEY, ETTINGER & ASSOCIATES, LLC, WHITEHALL, PA; EVERETT COOK, THE LAW
OFFICES OF EVERETT COOK, WHITEHALL, PA.
For THE HARTFORD/TWIN
CITY FIRE INSURANCE COMPANY, Defendant: RONALD P. SCHILLER, LEAD ATTORNEY,
MICHAEL ROBERT CARLSON, HANGLEY ARONCHICK SEGAL & PUDLIN, PHILADELPHIA, PA.
Plaintiffs Ettinger & Associates, LLC and Neil D.
Ettinger, Esquire (collectively " the law firm" ) brought this case (" the
Coverage Action" ) in the Court of Common Pleas of Northampton County seeking a
declaratory judgment that it was entitled to coverage under a professional
liability policy issued by Defendant The Hartford/Twin City Fire Insurance
Company (" Twin City" ). Twin City removed the case to this court, filed an
Answer, and has now filed a Motion for judgment on the pleadings. For the
following reasons, the Motion is granted and judgment is entered on behalf of
I. STANDARD OF REVIEW
" Pursuant to Federal Rule of Civil Procedure 12(c),
judgment on the pleadings will be granted only if 'the movant clearly
establishes there are no material issues of fact, and he is entitled to judgment
as a matter of law.'" Atiyeh v. Nat'l Fire Ins. Co. of Hartford, 742
F.Supp.2d 591, 595 (E.D. Pa. 2010) (quoting Sikirica v. Nationwide Ins. Co.,
416 F.3d 214, 220 (3d Cir. 2005)). " A party may move for judgment on the
pleadings '[a]fter the pleadings are closed -- but early enough not to delay
trial.'" Id. (quoting Fed.R.Civ.P. 12(c)). In deciding a motion for
judgment on the pleadings, the court considers the pleadings and exhibits
attached thereto, matters of public record, and " undisputedly authentic
documents attached to the motion for judgment on the pleadings if plaintiffs'
claims are based on the documents." Id. Rule 12(c) motions are reviewed
under the same standard that applies to motions to dismiss for failure to state
a claim pursuant to Rule 12(b)(6). See Turbe v. Gov't of Virgin Islands,
938 F.2d 427, 428 (3d Cir. 1991) (citations omitted). Accordingly, a motion for
judgment on the pleadings will be granted if a plaintiff has not articulated
enough facts " to raise a right to relief above the speculative level." See
Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007). It is not enough for plaintiffs to allege mere " labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do."
Id. Plaintiffs must plead " factual content that allows the court to draw
the reasonable inference that the defendant is liable for misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009). The Court " may disregard any legal conclusions." Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); see also Iqbal, 556 U.S. at 678
(" Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice." ).
When a court considers matters outside the pleadings,
a motion under Rule 12 ordinarily must be converted to a summary judgment motion
because plaintiff has not had an adequate opportunity to respond to the
extraneous evidence. Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). However, where the authenticity of
documents appended to the moving papers are not disputed and the plaintiff's
complaint relies upon them, a plaintiff is presumably on notice of their
contents and had the opportunity to refute the evidence. In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension
Ben. Guar. Corp., 998 F.2d at 1196-97. This exception to the general rule
prevents a plaintiff with a legally deficient claim from surviving a Rule 12
motion simply by failing to attach to the complaint a dispositive document upon
which his claim relies. Pension Ben. Guar. Corp., 998 F.2d at 1196.
Because the materials appended to Twin City's Motion 
are not disputed by the plaintiffs and the complaint relies upon them, they will
be considered part of the pleadings.
The events leading to the underlying malpractice
action began in 2005 when Bradley and Teri Miller (collectively " the Millers" )
hired the law firm to represent them in a dispute with their realtors, Norman H.
Gundrum and Martin J. Hacker d/b/a ReMax Unlimited Real Estate (" ReMax" ), over
the plaintiffs' purchase of a lot in Lehigh Township, Northampton County,
Pennsylvania. Def. Ex. I at 1-3. Gundrum had allegedly represented to the
Millers that a lot adjacent to the lot that they wished to purchase could not be
subdivided. Id. at 27. Several months prior to closing, however, the
Millers learned that the owners of the adjacent lot had applied for and received
a zoning variance to subdivide it. Def. Ex. II at 146; Def. Ex. I at 4-5. The
Millers nevertheless proceeded to closing, purchased their lot for $55,000 and,
less than two months later, successfully resold it for $82,000. Id.
Although they earned $27,000 profit from their purchase and sale, the Millers
consulted with Ettinger to determine whether they had viable claims against
ReMax over the alleged misrepresentation about the adjacent lot. Def. Ex. I at
27. Ettinger advised them that they had a claim, and commenced a lawsuit against
ReMax on June 8, 2005, on behalf of the Millers in the Court of Common Pleas of
Northampton County (the " Realtor Action" ). Id. The Millers alleged
claims of (1) fraudulent misrepresentation, (2) negligent misrepresentation, (3)
breach of contract, (4) promissory estoppel, and (5) violation of the
Pennsylvania Unfair Trade Practices Act and Consumer Protection Law (" UTPCPL"
). Id. The ReMax defendants repeatedly asserted that the lawsuit was
frivolous and warned Ettinger that they would sue his clients for " fraud, abuse
of process and malicious prosecution," if the lawsuit was not withdrawn. Id.
Ignoring these warnings, the Millers followed Ettinger's advice and pursued the
lawsuit to its conclusion. Id.
The Court of Common Pleas rejected the Millers'
claims in two separate summary judgment orders. Id. In the first order,
the court dismissed the Millers' breach of contract and promissory estoppel
claims because they had incurred no damages. Def. Ex. II at 117-18. In the
second order, issued one year later after further discovery, the court dismissed
the Millers' remaining claims because they had produced no evidence that Gundrum
had misrepresented anything to the Millers. Id. at 155-59. The court
found that the Millers admitted Gundrum's statements were true at the time that
they were made. Id. at 156.
ReMax then filed a lawsuit against the Millers,
Ettinger, and the law firm in August 2009, alleging wrongful abuse of civil
proceedings pursuant to the Dragonetti Act, 42 Pa. Con. Stat. § § 8351-8354 (the
" Dragonetti Action" ). Id. at 37-184; Def. Ex. I at 3-4, 28. The
Dragonetti Action alleged that Ettinger " not only knew his filings and
prosecution of the [Realtor Action] claims were wrongful and malicious under the
law, but encouraged and/or permitted his clients to pursue those claims rather
than terminating or withdrawing from the action as their counsel, even in the
face of being forewarned of the consequences." Def. Ex. II at 45; Def. Ex. I at
4-5, 28. Ettinger represented the Millers and himself in the Dragonetti Action,
having allegedly advised them that there was no conflict of interest in that
dual representation. Def. Ex. I at 27.
The Millers fired Ettinger in December 2011,
informing him through their new attorney, Ralph Bellafatto, Esquire, that they
would likely seek claims against him for professional negligence. Id. at
14-17. Three months later, in March 2012, the Millers filed a malpractice
complaint against Ettinger and the law firm in the Northampton County Court of
Common Pleas (the " Malpractice Action" ). Id. at 3. The Millers also
filed a similar cross claim against Ettinger in the Dragonetti Action. Id.
at 4; Def. Ex. II at 4. The Millers alleged that Ettinger had committed
professional negligence in the Realtor Action by inducing them to pursue a
frivolous lawsuit against the ReMax defendants which, in turn, led to the
subsequent Dragonetti Action against them. Id. at 29. The Millers further
alleged that Ettinger had breached fiduciary duties by, among other things, (1)
improperly advising them that there was no conflict of interest that would
prevent him from representing all defendants in the Dragonetti Action unless and
until the case proceeded to trial and (2) failing to advise them of their right
to file a cross claim against him. Id. at 28-31.
In this Coverage Action, Ettinger and the law firm
seek a declaratory judgment that they are entitled to coverage under Defendant's
Claims Made Professional Liability Policy issued to the Law Offices of Ettinger
& Associates, LLC, Policy No. LT 1616547, for the Policy Period of July 1, 2011
to July 1, 2012 (the " Policy" ). Def. Ex. II at 12-36. The Policy provides
coverage for " claims" first made during the Policy period for negligent acts,
errors, or omissions, or personal injury in the rendering of professional legal
We will pay on behalf of an insured, subject to the limit of
liability, such damages and claims expenses in excess of the applicable
deductible for claims made during the policy period or applicable extended
reporting period and reported to us in writing immediately, but in no event
later than sixty (60) calendar days after the expiration date of the policy
period or applicable extended reporting period. The damages must arise out of
a negligent act, error, or omission or personal injury in
the rendering of or failure to render professional legal services
for others by you or on your behalf provided always that the negligent act,
error, omission or personal injury occurs on or after the retroactive date as
stated in the Declarations.
Def. Ex. II at 17 (Policy, § I A) (emphasis in original ).
The Policy defines " claim" to mean (a) " [a] demand received by an insured for
money or services alleging a negligent act, error, omission or personal injury
in the rendering of or failure to render professional legal services . . . ." or
(b) " [s]ervice or receipt of a suit or arbitration proceedings or any other
alternative dispute resolution proceeding ...