Judge overrules in part, sustains in part preliminary objections by lawyer being sued by former clients

By Jon Campisi | Feb 21, 2013

A Philadelphia judge has overruled in part and sustained in part preliminary objections

A Philadelphia judge has overruled in part and sustained in part preliminary objections

that had been filed by an attorney who is a defendant in a legal malpractice case brought by a private Philadelphia club that had retained the lawyer to challenge citations stemming from alleged liquor law violations.

Kenrich Athletic Club and Hard Investment Finances LLC had filed suit last fall against Bala Cynwyd, Pa. attorney Donald M. Moser asserting claims of legal malpractice relating to work Moser had been doing on behalf of the plaintiffs.

The complaint was first filed on Sept. 11, 2012, and second and third amended complaints were filed on Oct. 18, 2012 and Nov. 21, 2012 respectively, the court docket in the case shows.

Swartz Campbell attorney Jeffrey B. McCarron, who was representing Moser, filed his preliminary objections on Sept. 28 of last year in the nature of a demurrer, which is response to a complaint in which the defendant asks for a case to be dismissed, even if the facts alleged were true, because there is no legal basis for litigation.

Kenrich Athletic Club and Hard Investment Finances alleged in their complaint that Moser’s alleged negligence entitled them to more than $2 million and to the return of fees paid for legal services.

The question presented by the demurrer was whether the law says with certainty that no recovery is possible, according to a memorandum opinion filed Feb. 15 by Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson.

Any doubt, the judge stated, should be resolved in favor of overruling the demurrer.

Massiah-Jackson, in ruling to sustain in part Moser’s preliminary objections, wrote that the plaintiffs have not asserted a viable malpractice cause of action relating to any substantive matters that could have been addressed by the court.

The judge wrote that the complaint presented no facts that could have established that the plaintiffs would have prevailed in the underlying litigation, which partially had to do with a challenge over an alleged failure to timely file for a liquor license renewal back in 2011.

The judge also wrote that there were no facts contained within the suit that would have established the plaintiffs would have prevailed in the litigation with regard to administrative hearings pertaining to the supposed liquor law violations.

Additionally, Massiah-Jackson determined that the final paragraphs in the complaint were “broad legal conclusions and extraordinary demands for monetary relief.”

Citing a past Pennsylvania Superior Court case, the judge wrote that when considering a demurrer, the courts are precluded from considering conclusions of law or inferences that are not supported by factual allegations contained in a complaint.

“It is apparent that on the record presented herein these Plaintiffs have alleged nothing more than speculative harm and conjecture, which do not suffice to create a cause of action for legal malpractice,” Massiah-Jackson wrote in her opinion.

The judge did, however, overrule one of the defendant’s preliminary objections.

The third amended complaint does aver facts that, if true, would have enabled the plaintiffs to keep their business open pending their appeal of the citations.

“To that extent only, the Preliminary Objections to this allegation of negligence is Overruled,” Massiah-Jackson wrote. “The Defendant suggests at page 5, that this averment reflects ‘nominal damages.’ The Court is required to Overrule a demurrer unless there is a certainty that no recovery is possible.”

The court docket in the case shows that back on Feb. 4, Massiah-Jackson sustained all of Moser’s preliminary objections and dismissed the complaint with prejudice, but the jurist reversed her decision about a week later in an effort to address the merits of the objections.

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