ATTORNEY MALPRACTICE-STATE ACTION-SETTLEMENT- Kilmer v. Sposito, 146 A.3d 1275 (Pa. Super. 2016)

February 15th, 2017 by Rieders Travis in Attorney Malpractice

In this appeal, Appellant Janet Kilmer (“Appellant”) appeals the trial court’s order sustaining preliminary objections in the nature of a demurrer filed by her former attorney, Appellee James Sposito (“Appellee”), in Appellant’s legal malpractice and breach of contract case. Because we conclude that the trial court erred as a matter of law, we reverse.

According to the complaint, Appellee negligently and carelessly advised Appellant, the surviving spouse, to file an election to take against her husband’s will under the provisions of 20 Pa.C.S.A. § 2203, which would entitle her to one-third of husband’s estate,1 when pure operation of law pursuant to 20 Pa. C.S.A. §§ 2507 and 21022 would have entitled Appellant to one-half of the estate as a surviving spouse who had married the testator after he made his will. Appellant followed this advice, and Appellee, on Appellant’s behalf, filed an election to take against her husband’s will in Orphan’s Court on June 30, 2009, a move that effectively reduced Appellant’s share of her husband’s estate from one-half to one-third.3

Appellant terminated the services of Appellee upon discovering the significance of exercising her right of election and hired a new attorney, Michael Briechle, Esq., to represent her interests in the disposition of the estate and challenge the validity of her election. Specifically, Appellant, through Attorney Briechle, filed objections to the executors’ Final Account that listed Appellant’s share as one-third of the estate consistent with her election, and she argued that she was, instead, entitled to a one-half share as if her husband had died intestate, pursuant to Section 2507(3), supra. The lower court scheduled a hearing on the issue of Appellant’s lawful share of the estate, but it continued the hearing date on joint motion of the parties, who were negotiating toward settlement. In July of 2011, Attorney Briechle and the estate reached settlement, wherein Appellant agreed to accept a 41.5% share of Husband’s estate.  The question is whether the settlement means that no suit could be brought against the malpracticing attorney.  At issue was the interpretation of Muhammad v. Serassburger, 587 A.2d 1346 (1991) which held that a dissatisfied plaintiff may not sue his or her attorney for malpractice following a settlement with which plaintiff agreed.  The court, however, distinguished Muhammad.  The court said that appellant had no real choice, given the risk, but to settle the underlying action.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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