J-A04022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JOHN F. CONLEY, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. WILLIAM E. STOCKEY AND STOCKEY AND KELLY, JOINTLY AND SEVERALLY, Appellees No. 548 WDA 2015

Appeal from the Order February 26, 2015 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 09-22371
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and S HOGAN, J. MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 26, 2016 John F. Conley appeals from the order entered Febru ary 26, 2015, which granted summary judgment to William E. Stocke y and Stockey & Kelly (collectively, Stockey) in this legal malpractice a ction. We affirm. In 2005, Jeffrey A. Butya approached Appellant, see king a loan of $100,000. 1 Appellant and Mr. Butya both had been represented by Stockey previously, and the three of them knew each other w ell. 2 Appellant trusted

____________________________________________ 1 We derive the factual background to this case from Appellant’s deposition, attached to his response to Stockey’s motion for su mmary judgment. See Response, 01/02/2015, Exhibit A.

2 Stockey represented Appellant previously in variou s collection efforts and real estate issues.J-A04022-16

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Stockey. Thus, Mr. Butya suggested that Stockey co uld facilitate the loan
transaction. In September 2005, Appellant, Mr. Butya, and Stocke y met to discuss the potential loan. In addition, Appellant and Sto ckey discussed the potential loan during at least one phone conversati on. However, Appellant could not recall whether Stockey offered any advice regarding the potential loan. As a result of these conversations, and as M r. Butya continued to owe Appellant money from a previous loan, it was determ ined that a new loan would be formalized and would incorporate the pre-e xisting debt as well. In October 2005, Appellant and Mr. Butya agreed to terms in a formal closing whereupon Appellant loaned $150,000 to Mr. Butya. 3 The loan was secured purportedly by a mortgage to real property owned by Mr. Butya’s brother, Brian Butya. However, at the closing, App ellant signed a waiver, acknowledging expressly that the property was subje ct to foreclosure proceedings that may render the loan unsecured. See Waiver, 10/20/2005. Shortly after closing, Mr. Butya defaulted on the l oan. Appellant obtained a judgment, which was affirmed by this Cou rt. See Conley v. Butya , 62 A.3d 463 (Pa. Super. 2012) (unpublished memora ndum).

____________________________________________ 3 Although the parties signed a note suggesting that Appellant loaned $150,000 to Mr. Butya, in fact, Appellant only prov ided $100,000. Mr. Butya also owed an additional $12,000 to Appellant from a previous loan.J-A04022-16

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Attempts to collect on this judgment have been unsu ccessful. See Second Amended Complaint, 04/10/2013, at ¶ 38. The documents for the 2005 loan transaction were dr afted by Attorney Michael Carr, Esq., who also attended the October 2 005 closing. Appellant presumed that Stockey had reviewed all of the docum ents. However, Stockey was neither present at the closing, nor did he review or discuss the documents with Appellant prior to the closing. In addition, Stockey never billed Appellant for any legal services, and Appell ant never paid Stockey any legal fees. Appellant commenced this action by writ of summons in December 2009. Appellant filed a complaint in October 2010, claiming professional negligence and breach of contract. Stockey filed p reliminary objections; Appellant filed an amended complaint. Following a second round of preliminary objections, this action was stayed pend ing resolution of Appellant’s claims against Mr. Butya. In April 201 3, Appellant filed a second amended complaint. Again, Stockey filed preliminar y objections, resulting in the dismissal of Appellant’s contract claim. In No vember 2012, Stockey filed a motion for summary judgment. Appellant timely re sponded. Following argument, the trial court granted Stockey’s motion for summary judgment and dismissed Appellant’s complaint. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued a responsive opi nion.J-A04022-16

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Appellant raises the following issues: [1.] Whether the trial court erred in granting summ ary judgment to [Stockey] on the basis of credibility determinat ions[;] [2.] Whether the trial court erred in granting summ ary judgment where material issues of fact exist[; and] [3.] Whether the trial [c]ourt erred in ruling that an attorneyclient relationship could not exist absent a fee ag reement between Appellant and [Stockey]. Appellant’s Brief at 2. Although Appellant purports to raise three issues b efore this Court, his brief presents two, distinct arguments. See Appellant’s Brief at i, 9, and 14. First, according to Appellant, the trial court impe rmissibly relied upon deposition testimony of Attorney Carr, who was depo sed on behalf of Stockey, thus violating the Nanty-Glo Rule. See Appellant’s Brief at 14-
17. 4 Second, Appellant suggests that he proffered suff icient evidence to establish that an attorney-client relationship exis ted between Appellant and Shockey. Id. at 9-14. Technically, Appellant’s brief does not c onform to Rule 2119 of the Pennsylvania Rules of Appellate Pr ocedure. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as man y parts as there are questions to be argued[.]”). Moreover, Appellant p resents his arguments in

____________________________________________ 4 The Nanty-Glo Rule precludes summary judgment based solely upon testimonial evidence of the moving party or its wit nesses. See Shamis v. Moon , 81 A.3d 962, 965 (Pa. Super. 2013); Nanty-Glo v. American Surety Co. , 163 A. 523 (Pa. 1932).J-A04022-16

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reverse order of the issues he identifies. Neverth eless, as these defects do not preclude our review, we will address his argume nts. The standard and scope of our review are as follows : Our standard of review of an order granting summary judgment requires us to determine whether the trial court ab used its discretion or committed an error of law[,] and our scope of review is plenary. We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no g enuine issue as to any material fact and it is clear that the mo ving party is entitled to a judgment as a matter of law will summ ary judgment be entered.

... Where the non-moving party bears the burden of proo f on an issue, he may not merely rely on his pleadings or a nswers in order to survive summary judgment. Further, failur e of a nonmoving party to adduce sufficient evidence on an issue essential to his case and on which he bears the bur den of proof establishes the entitlement of the moving party to judgment as a matter of law. Silvagni v. Shorr , 113 A.3d 810, 812 (Pa. Super. 2015) (quoting Sokolsky v. Eidelman , 93 A.3d 858, 861–62 (Pa. Super. 2014)). It is long settled that “summary judgment may not b e entered where the moving party relies exclusively upon deposition testimony in order to establish that there is no genuine issue of materia l fact.” Drapeau v. Joy Techs., Inc. , 670 A.2d 165, 167 (Pa. Super. 1996) (citing Penn Center House, Inc. v. Hoffman , 553 A.2d 900, 903 (Pa. 1989); Nanty-Glo , 163 A. at 524). Nevertheless, we may affirm a decision “on any grounds that areJ-A04022-16

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supported by the record.” Shamis , 81 A.3d at 970 (citing Cassel-Hess v. Hoffer , 44 A.3d 80, 85 (Pa. Super. 2012)). In his first issue, Appellant asserts that the tria l court impermissibly “based its decision on credibility determinations.” Appellant’s Brief at 14. In particular, Appellant challenges the court’s relian ce upon the deposition testimony of Attorney Carr to refute Appellant’s cl aim that Stockey’s current representation was established by previous efforts made on Appellant’s behalf: More persuasive is that Attorney Michael Carr was contacted by Attorney Stockey, told of the conflict that existed for Stockey in representing either [Appellant] or [Butya]. Attorn ey Michael Carr was subsequently hired by Jeffrey Butya, draft ed the documents necessary to finalize the 2005 [l]oan, at tended the closing and he was paid for services associated wit h same. Further bolstering ... Stockey’s claim, [Attorney] Ca rr testified that Stockey did not represent [Appellant] or anyon e else with regard to [the] 2005 [l]oan or [c]losing. Trial Court Opinion, 05/26/2015, at 6 (emphasis add ed; citing the deposition of Attorney Carr). According to Appellant, it was improper for the trial court to assess the credibility of witnesses, and this er ror precluded entry of summary judgment. Appellant’s argument is not persuasive. In our vie w, the trial court’s analysis was flawed, and we disapprove of the trial court’s determination that Attorney Carr’s testimony was “more persuasive ” than Appellant’s evidence to the contrary. See Silvagni v. Shorr , 113 A.3d at 812 (requiring that we view the record in the light mos t favorable to the non-J-A04022-16

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moving party). Nevertheless, this was not the sole basis of the trial court’s decision. To the contrary, the trial court properly recognize d that in order to state a claim of attorney malpractice, a plaintiff must establish: 1) employment of the attorney or other basis for a duty; 2) the failure of the attorney to exercise ordinary skill and knowledge; and 3) that such negligence was the proximate cause of damage to the plaintiff. Trial Court Opinion at 5 (citing Kituskie v. Corbman , 714 A.2d 1027, 1029 (Pa. 1998)). Having established this framework, th e trial court noted that it was undisputed that Appellant and Stockey never ent ered into a fee agreement regarding the 2005 loan; that Stockey nev er reviewed the loan documents with Appellant prior to closing; and that Appellant never paid Stockey for legal services. Id. at 6. Based upon this absence of evidence, the court determined that Appellant could not estab lish employment of Stockey. We discern no abuse of the court’s discre tion in this regard. 5 In his second issue, Appellant contends the trial c ourt erred as a matter of law when it required the existence of a f ee agreement to establish an attorney-client relationship between him and Sto ckey. According to

____________________________________________ 5 Alternatively, the trial court also referenced App ellant’s waiver, acknowledging expressly that the property was subje ct to foreclosure proceedings that may render the loan unsecured. It is not clear from the court’s opinion why the court found this undisputed evidence significant. In our view, the waiver is irrelevant to whether Appel lant employed Stockey for legal services, though it may have been probative i n another context.J-A04022-16

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Appellant, there was sufficient evidence to establi sh an implied attorneyclient relationship existed. See Appellant’s Brief at 10. Appellant suggests that based upon their prior attorney-client relatio nship and, further, because Stockey wanted to secure additional work from Appel lant’s son, it was reasonable for him to believe that Stockey was repr esenting him in the 2005 loan transaction. Id. at 13-14. Appellant is entitled to no relief. First, the pre mise of Appellant’s argument is flawed. Second, mindful of our standar d of review, and viewing the evidence in the light most favorable to Appella nt, we conclude that he cannot establish an implied attorney-client relatio nship. Following its conclusion that Appellant could not e stablish an express contract for legal services, the trial court examin ed “whether an attorney/client relationship was consummated absent an express contract .” Trial Court Opinion at 8 (emphasis added). Thus, t he trial court did not require Appellant to produce evidence of a fee agre ement. To the contrary, as recognized by the trial court, an implied relati onship may be found when certain conditions are met. Absent an express contract, an implied attorney-cli ent relationship will be found if 1) the purported clie nt sought advice or assistance from the attorney; 2) the advice soug ht was within the attorney's professional competence; 3) the atto rney expressly or impliedly agreed to render such assist ance; and 4) it is reasonable for the putative client to believe the attorney was representing him.J-A04022-16

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Kirschner v. K&L Gates LLP , 46 A.3d 737, 748-49 (Pa. Super. 2012) (quoting Cost v. Cost , 677 A.2d 1250, 1254 (Pa. Super. 1996)); see also Trial Court Opinion at 8. Reviewing Appellant’s ev idence, the trial court concluded that although Appellant could establish t he first two conditions, the court discerned no evidence that Stockey agreed to provide Appellant with legal assistance. See Trial Court Opinion at 8. We agree with the court’s conclusion. Further, we note that a plaintiff’s subjective belief that an attorney repr esents his interests is insufficient. See Cost , 677 A.2d at 1254. Here, even accepting that Appellant’s prior relationship with Stockey include d legal representation, there is no evidence that Stockey agreed, expressly or implicitly, to represent Appellant in the 2005 loan transaction. Notably, Stockey never billed Appellant for any legal services, and Appell ant never paid Stockey any legal fees. Stockey was not present at the closing , and he never reviewed the loan documents with Appellant prior to the clos ing. At most, Appellant’s evidence demonstrates his subjective belief that St ockey represented him. Such evidence is insufficient. Cost . Accordingly, we discern no error of law. Order affirmed.J-A04022-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/26/2016