Jon Campisi Oct. 3, 2012, 8:23am

A Philadelphia judge is asking that an earlier trial court decision dismissing a legal

malpractice complaint against two attorneys who had been sued by the widow of a lung cancer victim be upheld on appeal.

In an opinion filed on Oct. 1, Philadelphia Common Pleas Court Judge Allan L. Tereshko requested that the court’s July 5 decision dismissing Dorothy Palmer’s lawsuit against attorneys Brian P. Kenney and Brian P. McCafferty be affirmed by the state Superior Court.

The two lawyers, along with their firm, Kenney & McCafferty P.C. and Provost Umphrey Law Firm LLP, were sued by Palmer for allegedly failing to file a survival action claim on the Palmer family’s behalf, an act of negligence that allegedly caused Palmer and her family to suffer great economic loss.

The history of the case dates back to 2002, when Palmer’s husband, George, was diagnosed with silicosis and asbestosis.

The defendant attorneys filed a silicosis lawsuit in Philadelphia’s Common Pleas Court in August 2002 on behalf of the couple.

George Palmer ended up being diagnosed with lung cancer in January 2008; he died in August of that year.

In September 2009, the defendants filed a suggestion of death in the silicosis lawsuit, and the following month, Dorothy Palmer was substituted as the personal representative of her late husband’s estate.

The silicosis lawsuit was subsequently settled for $272,992.08.

Dorothy Palmer filed her legal malpractice complaint against the two attorneys and the other two defendants on Jan. 20 of this year.

This spring, the defendants filed preliminary objections as well as a Notice of Intent to enter Judgment of Non Pros for Failure to File a Certificate of Merit.

Palmer eventually filed a second amended complaint.

In early July, the trial court simultaneously sustained the defendants’ preliminary objections and dismissed the plaintiff’s second amended complaint against the defendants.

The sole issue to be addressed on appeal is whether the trial court erred in dismissing the complaint with prejudice on the basis that Palmer was precluded from pursuing a legal malpractice lawsuit against the defendants after settling the underlying case.

In his opinion, Tereshko wrote that while Palmer alleges that the defendants were negligent in not filing a survival action on her behalf following her husband’s death, Palmer and her late husband had voluntarily signed releases with the various silica defendants, thereby releasing them from future claims, including potential malignancy claims.

“Whether or not a potential survival action would have resulted in a recovery greater than the $272,922.08 settlement amount is mere speculation, and therefore the failure to advise Plaintiff to pursue a survival action is not actionable legal malpractice,” Tereshko wrote. “Furthermore, Plaintiff has not alleged that she was fraudulently induced into settling her claims.

“Any assertion that advising Plaintiff to pursue a separate survival action rather than settling her claims would have resulted in a greater recovery is specious,” Tereshko continued. “Therefore, Plaintiff’s claim that her attorneys committed legal malpractice in advising her to settle the silicosis case must fail.”

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