J-A04028-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT WAGNER

v.

DAVID F. GOULD III, ESQUIRE 

GOULD LAW ASSOCIATES, PC, ET. 

AL., 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1585 EDA 2018

Appeal from the Order Entered, May 9, 2018,

in the Court of Common Pleas of Bucks County,

Civil Division at No(s): 2013-02880.

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 19, 2019

David F. Gould III, Esquire (“Gould”) and Gould Law Associates, PC, et 

al. appeal from the judgment entered against him in the amount of $500,000 

following a bench trial in this breach of contract action for legal malpractice.

1

 

Upon review, we affirm.

Robert Wagner was a client of Gould’s for many years. Wagner owned 

a residential, investment property in Upper Black Eddy, Pennsylvania, which 

was on the market for sale. In 2009, Gould approached Wagner about selling 

____________________________________________

1 We note that all arguments raised on appeal pertain to both Gould and 

Gould Law Associates, PC. However, for simplicity, we only refer to Gould in 

his individual capacity; the argument is the same as to both him and his law 

firm.
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the property to one of Gould’s other clients, Roy Stanley. In exchange for 

this, Gould wanted a 3% commission for locating a buyer. 

Prior to the sale, Gould required Wagner and Stanley to sign a Conflict

of Interest Waiver, identifying and waiving any conflicts Gould had 

representing Wagner and Stanley jointly in the transaction. Wagner and 

Stanley signed the Conflict of Interest Waiver on November 10, 2009. Gould 

then drafted the Agreement of Sale for the property, which Wagner and 

Stanley then executed on December 21, 2009.

Stanley, however, was unable to close timely per the Agreement of Sale. 

Wagner and Stanley agreed to extend the closing date under certain terms 

and conditions to be set forth in an Addendum to the Agreement of Sale.

2

 

Again, the parties all agreed that Gould would draft the Addendum. 

Notably, Wagner agreed to extend the closing date was conditioned 

upon Stanley providing security for the transaction in the event the deal fell 

through. In particular, Wagner wanted compensation for removing the 

property from the market and for any potential damage to the property or 

household items and furnishings (personalty) during the extended delay. This 

security was imperative to Wagner, and Gould knew it. Stanley suggested 

that they use Company Owned Life Insurance (“COLI”) policies, which he 

____________________________________________

2 Stanley was to purchase the property for $1,500,000. Additionally, Stanley 

and his family was moving into the property upon the execution of the 

Addendum.
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owned, as collateral for the Addendum to extend the closing date; Wagner 

agreed.

Life insurance policies totaling five million dollars ($5,000,000) face 

value which Alpine Holdings Trust held, secured the Addendum. In relevant 

part, it provided:

SECURITY Buyer shall provide security for the Purchase Liability 

and the Personalty Liability through a collateral assignment to 

Seller of Five Million dollars ($5,000,000) face value of that 

assignment of certain life insurance death benefits held by the 

Alpine Holdings Trust simultaneously with the signing of this 

Addendum. Seller shall have the right to execute or act against 

the security so provided if Buyer fails to close on the Agreement 

as extended or to pay the Personalty Liability when due.

Gould assured Wagner that Stanley’s collateral was adequate. Wagner and 

Stanley executed the Addendum on July 1, 2010. The policies were 

immediately transferred to Wagner pursuant to assignments, Gould also

drafted.

Unbeknownst to Wagner, Gould had a financial interest in the collateral. 

Gould created Baron Enterprises, Inc. (“Baron”) in 2009 to sell COLI policies. 

He and Stanley, along with another individual, were shareholders of the 

corporation; Gould was the president. If Baron sold a policy, Baron received

a commission. 

On May 3, 2010, prior to the drafting of the Addendum, Baron sold COLI 

Policies to Nazareth Ford, another former client of Gould’s. Nazareth Ford, 

then assigned and transferred 75% of the legal rights, title, and interest back 

to Baron, and thus effectively, Gould and Stanley. 
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Gould then created a company called Alpine Holdings Trust. Gould, 

acting as Baron’s president, transferred 49% of the COLI policies from Baron 

to Alpine. As trustee for Alpine, Gould then transferred all of Alpine’s interest 

in the COLI policies to Wagner. All of this was all undertaken in an attempt

to satisfy the collateral requirement under the Addendum.

On July 1, 2011, the closing date as extended by the Addendum, Stanley

again was unable to purchase the property. Sometime thereafter, Wagner 

tried to collect on the collateral, but could not. Prior to the scheduled closing, 

a new owner of Nazareth Ford performed a full-cash surrender and closeout 

of the COLI policies rendering the collateral under the Addendum worthless.

Wagner filed suit against Gould, as well as Stanley, asserting breach of 

contract claims. Specifically, with respect to Gould, Wagner alleged that Gould 

breached his contract for legal services and committed malpractice.

Following a non-jury trial, the court found in favor of Wagner and 

entered a decision against Gould in the amount of $500,000 on November 26, 

2017.3 Gould filed a motion for post-trial relief asking for judgment 

notwithstanding the verdict, which the trial court denied on January 5, 2018. 

Judgment was entered on May 8, 2018. Gould filed a notice of appeal on May 

23, 2018. Gould and the trial court complied with Pa.R.A.P. 1925(b).

We begin our analysis with a review of Gould’s 1925(b) statement. The 

trial court found that Gould failed to provide a concise statement of matters 

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3 The trial court also found against Stanley in the amount of $63,600. Stanley

did not appeal.
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complained of on appeal as required under Pa.R.A.P. 1925. According to the

trial court, the statement was anything but concise and lacked guidance which 

enabled the court to properly address the errors Gould believed the court

committed. Trial Court Opinion, 8/2/18, at 3. We agree. The trial court 

observed: 

A concise statement of matters complained of on appeal must be 

“concise and coherent”. A statement that is too vague is 

functionally equivalent to no concise statement at all. Further, a 

statement of errors complained of on appeal must, in accordance 

with Pa.R.A.P. 1925(b), be “sufficiently concise and coherent” to 

permit the trial court to identify the issues raised on appeal. 

Further, “[w]hen a court has to guess what issues an appellant is 

appealing, that is not enough for meaningful review.” 

Id. at 3-4. The trial court endeavored to identify the issues raised by Gould. 

However, to the extent that the trial court was unable to do so, as we discuss 

later in this decision, we find Gould waived those issues.

On appeal, Gould raises the following issues:

1. Whether the trial court erred in not giving effect to the parties’ 

contract.

2. Whether the trial court’s decision is offensive to the Rules of 

Professional Conduct.

3. Whether the trial court erred in rendering a verdict for Wagner 

in the absence of substantiation of his claim and in contradiction 

to the evidence.

4. Whether the trial court erred in its award to Wagner where he 

had not shown actual loss and the award was impermissibly 

speculative.
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See Gould’s Brief at 5-6.4

Initially, we note that all Gould’s issues on appeal involve questions of 

law. Thus, our standard of review is de novo, and our scope of review is 

plenary. Reott v. Asia Trend Inc., 55 A.3d 1088, 1093 (Pa. 2012).

In his complaint, Wagner alleged that Gould committed legal 

malpractice based upon breach of contract. A plaintiff pursuing a legal 

malpractice claim under a breach of contract theory, must prove: (1) the 

existence of a contract, including its essential terms; (2) a breach of a duty 

imposed by the contract; and (3) resultant damages. See CoreStates Bank, 

N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). For a claim of breach 

of contract for legal services, an attorney may be liable for failing to adhere 

the terms of the contract or for failing to follow a client’s specific instruction. 

See Bailey v. Tucker, 621 A.2d 108 (Pa. 1993); Gorski v. Smith, 812 A.2d 

683, 694 (Pa. Super. 2002).

Additionally, “every contract for legal services contains, as an implied 

term of the contract, a promise by the attorney to render legal services in 

accordance with the profession at large.” Gorski, 812 A.2d at 694. “Hence, 

a breach of contract claim may properly be premised on an attorney’s failure 

____________________________________________

4 Additionally, during the pendency of this matter, Gould filed preliminary 

objections, a motion for judgment on the pleadings, and a motion for summary 

judgment, all of which the trial court denied. In his brief, Gould suggests that 

the trial court erred in denying these. Gould’s Brief at 3. However, as 

observed by Wagner, Gould did not preserve any issues related thereto other 

than the parole evidence issue. 
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to fulfill his or her contractual duty to provide the agreed upon legal services 

in a manner consistent with the profession at large.” Id.

The trial court found that Wagner and Gould had two contracts: 1)the 

Conflict of Interest Waiver, and 2) a verbal/implied contract for the provision 

of legal services in the negotiating, drafting, and executing the Agreement of 

Sale and the Addendum, as well as for preparing the assignments to secure 

the collateral for the transaction. Memorandum, 11/26/17, at 9. The trial 

court further found that Gould breached both of the agreements with Wagner,

and that, as a result, Wagner sustained damages. Id. at 8-11. On appeal, 

Gould’s arguments focus on the trial court’s finding that there was a second 

contract, the verbal/implied contract, between Gould and Wagner, and that 

Wagner sustained damages from his failure to adhere to the contract.

5

 

In his first issue, Gould argues that the trial court failed to give effect to 

the terms and conditions of the agreement between Gould and Wagner set 

forth in the written Conflict of Interest Waiver. According to Gould, this

agreement, and only this agreement, comprehensively set forth the terms and 

conditions under which Gould agreed to provide services to Wagner and 

____________________________________________

5 Gould does not challenge on appeal the trial court’s conclusion that the 

Conflict of Interest Waiver did not fully disclose his conflicts or that he was in 

breach for failing to do so. Additionally, Gould does not argue that he did not 

breach the agreements. We therefore do not address this element of a breach 

of contract claim below.
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Stanley in relation to the sale of property. Under this agreement, Gould was 

only to ascertain jointly and document evenly the parties’ transaction. Gould’s 

Brief at 24, 32. Despite this, the trial court impermissibly allowed parol 

evidence into the record, upon which, the trial court improperly concluded that 

there was a verbal/implied contract between Wagner and Gould to represent 

him individually. Id. at 28. Consequently, the trial court erred. We disagree.

Under the parole evidence rule, neither oral testimony nor prior written 

agreements or other writings are admissible to explain or vary the terms of a

written contract that is unambiguous and held to express the embodiment of 

all negotiations and agreements prior to its execution. Lenzi v. Hahnemann 

University, 664 A.2d 1375, 1379 (Pa. Super. 1995). 

The issue of whether a writing constitutes an integrated contract 

is a question of law. A contract is integrated if it represents a final 

and complete expression of the parties' agreement. Where a 

contract purports to be a complete legal obligation without any 

doubt as to its object or extent, it is presumed to reflect the whole 

legal right of the parties.

Id. (citations omitted). Accordingly, we must examine the Conflict of Interest 

Waiver and determine if it represents the entire contract between Wagner and 

Gould.

It is plainly evident from the face of the Conflict of Interest Waiver, 

contrary to Gould’s contention, that it was not an agreement for legal services. 

Instead, it only served to identify the conflicts Gould had in representing both 

Wagner and Stanley, and to have Wagner and Stanley acknowledge them. 
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The reference line indicated that it was regarding the “Disclosure of 

Conflicts in Arranging and Preparing Agreement of Sale” of the subject 

property. Although the letter briefly mentioned that Wagner and Stanley 

wanted Gould to draft the necessary documents and close on the property, 

and to do so, Gould stated that “it is my ethical duty to outline all of the 

conflicts of interest that would affect that representation and advise you to 

have separate legal review of the matter.” He then directed the parties “to 

sign the letter to indicate your waiver of and consent to the conflicts”. It did

not outline any of the typical terms and conditions set forth in an agreement 

for legal services, in particular, the scope of Gould’s services. 

Furthermore, much of Gould’s liability found by the trial court in this 

matter turned significantly on what transpired after the execution of the 

Conflict of Interest Waiver. In particular, the drafting of the Addendum and 

the securing of the collateral for the Addendum did not arise until after the 

execution of the Conflict of Interest Waiver. Thus, the parties could not have 

contemplated the provision of these services or account for Gould’s conflicts 

relating to the collateral and parties’ interest therein.

6

 Consequently, the 

Conflict of Interest Waiver was not an integrated writing as Gould contends.

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6 We further note that the parole evidence rule only precludes the use of 

contemporaneous or prior oral declarations to alter the import of a contract. 

See Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436-37 (Pa. 

2004); LeDonne v. Kessler, 389 A.2d 1123; 1126 (Pa. Super. 1978). 

Similarly, post-agreement conduct is always relevant in interpreting a 

writing. See Pennsylvania Engineering Corp. v. McGraw–Edison Co.,
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We therefore conclude that the trial court did not violate the parole

evidence rule by admitting evidence surrounding Gould’s agreement to 

provide legal services and assist with securing the collateral required under 

the Addendum. 

In his second issue, Gould argues that the trial court’s conclusion is 

contrary to the Rules of Professional Conduct. However, we find that Gould 

has waived this issue. First, Gould failed to preserve his second issue for our 

review. Gould did not claim specifically in his post-trial motion that the trial 

court’s conclusions offend the Rules of Professional Conduct. Failure to raise 

an issue in post-trial motions or exceptions result in a waiver of that issue for 

purposes of appellate review. Taylor v. Celotex Corp., 574 A.2d 1084, 1093

(Pa. Super. 1990); Pa.R.Civ.P. 227.1(b). 

Second, although Gould discussed his efforts to comply with the Rules 

of Professional Conduct by requiring Wagner and Stanley to execute the 

Conflict of Interest Waiver, Gould did not develop this as a separate argument 

in his brief. Where an appellant fails to develop his argument, he waives it. 

Commonwealth v. Kane, 10 A.3d 327, 331-32 (Pa. Super. 2010), appeal 

denied, 29 A.3d 796 (Pa. 2011); Pa.R.A.P. 2116. Thus, Gould waived this 

issue, and, therefore, we do not address it. 

____________________________________________

459 A.2d 329 (Pa. 1983). The introduction of emails, the parties’ discussions 

and conduct following the execution of the Conflict of Interest Waiver,

particularly relating to the collateral, does not fall under the parole evidence 

rule. 
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In his third issue, Gould claims that the trial court violated the principles 

of contract law and erred in concluding that the evidence of record 

demonstrated that there was an implied contract between Wagner and Gould. 

Gould’s Brief at 29, 38. Again, Gould argues that the trial court erred by 

ignoring the contract between the parties, i.e., the Conflict of Interest Waiver, 

and finding an implied contract between Wagner and Gould under which Gould 

owed a duty to Wagner. Further, under the terms of the Conflict of Interest 

Waiver, Gould could not be subject to any liability (no breach) for a contractbased malpractice claim because that agreement expressed he was 

representing Wagner and Stanley jointly. See id. at 39.

Additionally, Gould argues that the evidence did not establish the 

elements of a contract-based, malpractice claim. Gould’s Brief at 39. In 

particular, Gould argues that there was no basis in the record to support the 

trial court’s finding of either an implied attorney/client contract or a finding of 

damages. Id. at 32, 39. 

As explained above, the Conflict of Interest Waiver did not preclude the 

trial court from finding an implied contract. We therefore only consider his 

remaining argument as to whether the evidence supported the trial court’s 

conclusion that an implied contract between Wagner and Gould existed.7 

A contract implied-in-fact has the same legal effect as any other 

contract. Cameron v. Eynon, 3 A.2d 423, 424 (Pa. 1939). It differs from an 

____________________________________________

7 Because Gould raised the issue of damages separately, we discuss the 

damages issue in detail below under the fourth issue.
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express contract only in the manner of its formation. An express contract is 

formed by either written or verbal communication. Id. On the other hand, a

contract implied-in-fact arises “where the parties agree upon the obligations 

to be incurred, but their intention, instead of being expressed in words, is 

inferred from their acts in the light of the surrounding circumstances.” Id. 

The trial court found that sufficient evidence was presented to support a 

finding that Gould impliedly agreed to provide legal services to Wagner. 

Memorandum, 11/26/17, at 9. We agree.

After the first scheduled closing on the property fell through, Wagner 

and Stanley agreed to extend the closing date under certain conditions. Gould 

facilitated the parties’ negotiations.

Of particular import to Wagner was the requirement that Stanley provide 

collateral to secure the transaction. Wagner and Stanley agreed to use the 

COLI policies as collateral. Wagner communicated the agreed upon terms to 

Gould. In particular, Wagner specifically instructed that the house and 

personalty be cross collateralized. Gould proceeded to draft the Addendum 

per Wagner’s direction, including this critical provision.

After receiving the draft Addendum, Wagner emailed Gould about this 

particular provision, amongst other things, for clarification and a better 

understanding about the type and amount of collateral provided. Gould 

further advised Wagner that “[t]he security locks in [Stanley] and provides 

additional security to you.” Upon receiving assurance from Gould that he was 

covered, Wagner signed the Addendum. Gould later confirmed again for 
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Wagner that the collateral was currently worth ten cents on the dollar for a 

total of $500,000, the full amount of collateral agreed upon. Additionally, 

Gould prepared the assignments to secure the collateralized COLI Policies, 

which was critical to Wagner. 

From these circumstances, it is evident that Wagner sought legal 

services from Gould, and Gould provided Wagner with those services. Thus, 

although there was no express written agreement between Wagner and Gould, 

based upon their actions, an implied contract clearly arose. 

Moreover, when Gould provided these services, he was required to 

provide them with competent representation of legal knowledge, skill, and 

thoroughness. This is a well-established principle in our jurisprudence, and 

Wagner proved Gould’s breach of his professional duty through competent, 

expert testimony. 

Gould argues, however, that he had no attorney-client relationship with

Wagner. This likewise contradicts the evidence presented. 

Absent an express contract, an implied attorney/client relationship will 

be found if: 1) the purported client sought advice or assistance from the 

attorney; 2) the advice sought was within the attorney's professional 

competence; 3) the attorney expressly or impliedly agreed to render such 

assistance; and 4) it is reasonable for the putative client to believe the 

attorney was representing him. Atkinson v. Haug, 622 A.2d 983, 986 (Pa. 

Super. 1993). 
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The evidence recited above supports the existence of an attorney-client 

relationship between Wagner and Gould with respect to securing the 

appropriate security for the Addendum. Wagner sought advice and assistance 

from Gould, who agreed to render those services when he actually performed 

the work. It was reasonable for Wagner to believe that Gould was 

representing him. Moreover, Gould knew that Wagner had to have the 

transaction secured by collateral. Writing this into the Addendum at Wagner’s 

request had legal implications. The preparation of the assignments to transfer 

the collateral to Wagner was within Gould’s professional competence, as there 

were legal ramifications in guaranteeing that Wagner had a right to the 

security if needed. Gould’s claim that this was only a business matter is 

therefore inaccurate.

Because the evidence of record, when viewed in the light most favorable 

to Wagner, was sufficient to establish an implied contract for legal services, 

the trial court correctly denied Gould judgment as a matter of law. 

In his last issue, Gould claims the trial court’s award of damages in the 

amount of $500,000 was arbitrary, excessive, and speculative. Gould’s Brief 

at 23. Specifically, he argues that Wagner failed to demonstrate how Gould’s 

alleged breach of his professional duty resulted in actual loss to Wagner. 

Gould’s Brief at 23, 42. Again, we disagree.

A malpractice claim requires proof of actual loss, rather than a breach 

of professional duty causing only nominal damages, speculative harm, or the 

threat of future harm. Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 
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1998). “Evidence which demonstrates that a plaintiff has suffered the loss of 

property rights under a contract will suffice to establish ‘actual injury’ or ‘harm’

in a legal malpractice action.” Curran v. Stradley, Ronon, Stevens & 

Young, 21 A.2d 451, 455 (Pa. Super). “The test of whether damages are 

remote or speculative has nothing to do with the difficulty in calculating the 

amount, but deals with the more basic question of whether there are 

identifiable damages. Thus, damages are speculative only if the uncertainty 

concerns the fact of damages rather than the amount.” Rizzo v. Haines, 

555 A.2d 68 (Pa. 1989). 

Here, the trial court found that “there is no question that Wagner 

suffered actual loss of the COLI policies as collateral for the Addendum.” 

Memorandum, 11/26/17, at 11. The parties agreed that the collateral under 

the Addendum was to be $500,000. Gould confirmed to Wagner that the value 

of the COLI policies that he obtained for Wagner was $500,000. Because the 

policies were ultimately worthless due to Gould’s failure to ensure that the 

transaction was properly secured, Wagner’s actual loss was $500,000. 

Gould argues however that because the trial court found Stanley liable 

for damages only in the amount $63,600, that his liability should, likewise, be 

limited to that amount. Gould’s Brief at 43. 

The award of damages against Stanley was primarily based upon the 

failure to make payments as required under the Addendum. Here, however, 

the trial court’s award was based upon Gould’s failure to ensure adequate 
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security for Wagner’s agreement to extend the closing for the sale of the 

property. Gould was liable for the security promised (i.e. $500,000). 

Thus, there was sufficient evidence that Wagner suffered actual loss of 

property totaling $500,000, and the trial court did not err in finding Gould 

liable to Wagner in the amount of $500,000. 

For the foregoing reasons, we conclude that the trial court did not err

as a matter of law, and none of Gould’s issues warrants relief.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/19/19