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### 1 NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
NO. 02-4144

__________________ 

### CAPITO L SURG ICAL SU PPLIES , INC., d/b/a CAPITOL MARKETI NG GROUP, Appellant

v. 

### MICHAEL J. CASALE, J R; CASALE & BONNER, P.C
.

_________________________________ On Appeal From the United States Distri ct Court for the Mid dle District of P ennsylvania (M..D. Pa . Civ. No. 01- cv-01338) District Judge: H onorable M alcolm Muir

________________________________ ARGUED OCTOBER 16, 2003 Before: SL OVITER , ROTH A ND STA PLETO N, CIRCUI T JUDGES

(Filed: January

28, 2004)
Gary P. Lightm

an, Esquire Kristi ne Chrste nsen, Esqui

re (Argue d) Lightman, Manochi & Kornilowicz 1520 Locust Str

eet, 12 th 

### Floor Philadel phia, PA 19102 Counsel for Appe llant

### 2

Jeffrey B. McCarr

on, Esquire

(Argued) Kathleen M. Carson, Esquire Swartz, Campbell & Det

weiler 1601 Market Street 34 th 

### Floor Philadel phia, PA 19103 Counsel for Appellees

_________________ OPINI ON

_________________ ROTH, Circuit

Judge Capitol Su rgical Supp lies d/b/a Capito l Marketing G roup (“Cap itol”) appeals from the District Co urt’s order gr anting summary judgment in f avor of th e defend ants, Michael J. Casale , Jr., Esquire, and the la w firm with which he is associa ted, Casale & Bonner, P.C. (collectively, “Casale”). Capitol’s claims involve the alleged legal malpractice and related b reach of co ntract by Casale. For the reaso ns that follo w, we will affirm the District Co urt’s judg ment. The backg round is set f

orth at length in the District Co urt’s order. T hus, because we write fo r the parties, we w ill revisit the factual b asis of the action only briefly. Capitol is a distributor of me dical products. The shareholders of Capitol are Norm an Horowitz an d Sidney Stadler. Hav en Pride, Inc. ( “Haven Prid e”) is an entity formed in

### 3

1999 b y Robert Meacham and G eorge Greico for the pu rpose of manu facturing a dult diapers ; Capitol

was one of the

initia l share holders of Ha

ven Pride,owning a 15% intere st. At Me acham ’s reque st, Cas ale per formed l egal se

rvices regardi ng the formation of Haven Pride. In return for his service s, Casale received H aven Pride sto ck equal to 2. 5% of th e c om pa ny. Under an exc lusive di stribut ion agreement,Capitol was the exc lusive di stribut or of Haven Pride

products. Initia

lly, Capitol

and Haven Pri de operated under an a greement they had drafted th emselves, without C asale’s involvement. T he entities later decid ed to form a new distribution agreement to replace the init ial agreement. Meacham consulte d with Casale rega rding assistance w ith the new ag reement and arrang ed a meeting with Horowitz at C asale’s office to discuss it. Horo witz had nev er communicated with C asale before that meeti

ng in early

2000, and both Stadler and Horowitz knew that Casale was Haven Pride’s attorney . After the meet ing, Horowitz and Stadler negotiated on Capitol’s behalf to h ave certain pro visions inclu ded in the ag reement. Casale drafted the new exclusive dist ribution agreement. Horowitz s ent proposed changes to th e new agreement to Casale, but there w as no discussio n with Casale regardi ng the lega

l ram ificat ions of Capit

ol’s propos ed provisi ons. Casa le did not provide any

comment to Horowi

tz rega rding the ne

w agreem ent’s t erms . No one on Capitol’s beh alf asked Casa le for legal ad vice during the negotiatio n of the ag reement. Casale made no a

greement to provi de Capitol any legal assist

ance in c onnection wi

th the

### 4

negotiation s with Haven Pride. Capito l did not p ay, or agree to pay, any am ount to Casale for legal ser

vices. There was no written repre sentation agreement between Capitol and Casale. The new exclusive distribution agreement was executed by Horowitz and Stadler on Capito l’s behalf, and by Meacham on Haven Pride’s behalf . However , the business relat ionship bet

ween Capit

ol and Haven Pr

ide dete riorat ed in the fa

ll of 2000. Capi

tol filed a s eparate lawsui

t against Haven Pri de for breach of the exc lusive di stribut ion agreem ent. Capi tol and Have

n Pride re ached a s ettle

ment i n that action, but t

he course of that litigation rev ealed issues regard ing the valid ity of the agreement. On July 18, 2001, Capitol filed this act ion against Casale in the Dist rict Court under theories of negligence and breach of contract. Specifically,Capitol alleged that Casale was negligent and breached cer tain duties owed to Capitol in preparing the new exclusi ve distr ibution agr

eeme nt, and tha

t Casal e breached a contr act wit h Capitol regardi ng Capitol’ s instr

uctions t o prepare a valid a nd enforcea

ble excl usive distributi on agreement. Cas ale moved for summary judgment. By m

emorandum and order entered October 25 , 2002, th e District Court g ranted the motion , determining that n o reasonab le fact-fi nder could c onclude tha

t an att orney-clie

nt rela tionship existed between Capi tol and Casale. In a ddition, th e District Court co ncluded th at Capitol had not suff iciently demonstrated any harm suff ered as a conseq uence of

Casale’s alleged n egligence. Th is appeal fol lowed.1 There is no di spute t hat Pennsy lvania

law appli es to t

his cas e. 

### 5 We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review ove r an order g ranting summary judgment. Curley v. Kle m , 298 F.3d 271, 276- 77 (3d Cir. 2002). Summary judgment is appropriate when “no genuine issue [exists] as to any mate rial fact and [when] t

he moving pa

rty is enti tled to a judgment as a ma

tter of law.” Fe d. R. Civ. P. 56(c). We view the facts i n the light

most fa vorable t o the nonmovin g party and we draw all inferences in that party’s favor. See Reitz v. County of Bucks , 125 F.3d 139, 143 (3d Cir. 1997). In order t o prevail on its cl aims , Capitol

had the burde

n of establishing the existence of an attorney

-client rela

tionship between the parties as a basis for Casale’s owing Capitol a duty. In this c ase, it is undisputed that t here was no express contract between Ca

pitol and Casale for

legal s ervice s. There fore, Capi tol had to e stabli sh the existenc e of an

imp lie d attorney

-cl ient rel ati onshi

p. Under Penn sy

lvani a la w, 1 

### an implied attorne y- client relat ionship is shown if (1) t

he purporte d client

sought advic e or assistance from

the attorney ; (2) the assist ance sought was within the attorney ’s professional competence; (3) the attorney expressly

or impliedly

agreed to provide such assistance; and (4) it is reasonable for the putat ive client to believe t

hat the attorney

was representing h im. Atkinson v. Ha ug , 622 A.2d 983, 986 (Pa . Super 1993). A request for legal services , and an agreement to provide legal s ervices, are necessary

elements t

o form an attorney-client relationsh ip. Cost v. Co st , 677 A.2d 1250, 12 54-55 (Pa. 1996).

### 6

The District Court concluded that the rec ord is devoid of any evidence that Capitol sou ght Casale’s legal ser vices or that Casale agreed to pr ovide legal co unsel to Capitol. Capitol a

rgues tha t the District

Court ignore d evidence

that Horowi

tz and Meacham jointly sought Casa

le’s l egal as sista

nce in drafting the ne

w exclusi ve distri bution agre ement . In support , Capitol cites portions of de

position t estim ony by Horowitz, S tadler, and Me acham in which e ach indicated that the parties wa nted to formalize thei

r pre-existing agreem

ent. Yet Horowitz also test ified that Meacham initiated Casale’s inv olvement with th e new agreement an d that his first co ntact with Casale occurred at t

he meeting arra

nged by Meacham . Moreover, Horowitz and Stadler both indicated elsewhere in their depositions that they

did not request any l egal services from Casale. Capitol c ites ot

her evide nce, such as Casa

le’s r eferenc es to m

ultiple “clie nt s ” on his billing entries re lating to the new exclusive distri bution agreement, as wel l as instances wher e Casale had some d irect communications with Capitol fo llowing th eir initial meeting. How ever, we agree w ith the District Co urt that, althou gh these fac ts might bolster Capitol’s

contention that it held a subjective beli ef that Casale was repres enting Capi

tol, the y do not create a genuine

issue of m

ateri al fact

concerni ng whether Ca

pitol re quested,and Casal e agree d to provide,legal s ervice s. A subjective belief that an attorney

-client rela

tionship was formed is an insufficient basi s upon which to find th e existence of

a genuine issu e of material fact preclu ding summary judgment.

### 7

Atkinson v. Ha

ug , 622 A.2d at 987- 88. We have consider ed Capitol ’s rem

aining arguments and f

ind them witho ut merit. Up on re vi ew of

th e r ec or d a nd th e p ar ti es ’ c on te nt io ns , w e a gr ee th at no at to rn eyclient relat

ionship was formed between the partiesand, thus, that there was no basis for a duty to Capitol. For that reason, we need not reach t he issue whether Capit ol suffer ed any har m as a resul t of Casal e’s al leged bre aches of duty. Accordingly , we will affirm t he Distri ct Court’ s order gr anting s ummary judgment in favor of Casa le.



### _______________________ TO THE CLER

K: Please file the foregoing opini on. By the Court,

/s/ JANE R. ROTH Circuit Judge2 Horo witz w as asked a t this deposition, “[D ]id you make any specific reque st of M r. 

### 1 Casale during the Januar y 2000 meet ing?” Horowitz r eplie d, “That he put togethe r an 

### 2 agreement for

the busi ness – for t

he dist ribut ion – to put

togethe r the di stribution 

### 3 agreement t o be a legal ly binding document . I t

hink mys elf and Mr. Meacham did that.” 

### 4 (See Appellees’ App. at 76, 79.) Thi s versi on of events was cor roborat ed by St adler, who 

### 5 test ifie d that “ [w]e all togethe r asked [Casal e] as a uni t, j ust as a matter of discus sion, that 

### 6 he would draft

an agreement be tween Haven Pride and [Capi tol] .” ( See id. at 26 2.) 

### 7 Moreover, the re is documentary evidence t ending to s how that Horowitz r equested l egal 

### 8 advice fr om Casale. For example, on one of the dra ft vers ions of t he dist ribut ion 

### 9 agreement, Horowitz made a notation next t o the te rminati on clause whic h read, “ What 

### 10 do you sugge st?” ( See Appellees’ App. at 104-05. ) At his de posit ion, Horowitz test ifie d 

### 11 that h is qu estio n w as d irect ed to Ca sale . ( See id. ) 

### 12 8 CAPITOL SURGICAL SUPPLI ES, INC. V. CASALE – NO. 02-4144 /S/ Walt er K. Stapl eton, Circuit Judge STAPL ETON , J. , Disse nting: I conclude that t

here is a materi al dis pute of fact as to: (a) whether

there was an attor ney- clie nt rel ations hip between Capit ol and Casal e, and (b) whether Casal e’s al leged breach of dut

y t o Capitol caused it

to settle i ts l iti gation wit h Haven Pride for

su bs tan tia lly le ss th an it w ou ld ha ve re ce iv ed in th e a bs en ce of th at b re ac h. A cc or di ng ly, I would reverse and remand this case to the District Court for further proceedings. The summary j udgment recor d will s upport a finding that Capitol and Haven Pride made a joint

request of Casale t

hat he pre pare a di stribution agr eement for t hem and that Casale honore d that r equest by doing so. Horowitz and Stadl er repeatedly insi sted dur ing their deposit ions that a j oint r equest was made at the initial

meeting. 2 If that te stimo ny is credit ed, i t is clear

that Casa le accept ed the re quested r epresent ation by drafting the3 The issue of whether the di stribution agr eement is invali d is not before us, and I 

### 1 wo uld ex press n o op inion re gard ing it. 

### 2 9 requ ested a greem ent an d fo rwa rding his dra ft to bo th Ca pitol an d H aven Pride . Casa le does not cla im to h ave to ld Ca pitol tha t he w as on ly represen ting H aven Pride , and h is time re cords bear

evidence which would s upport a finding that he underst ood this to be a joint repres entat ion. I n any eve nt, whether or not Casale subj ecti vely

belie ved he repres ented Capit ol, t

he rele vant is sue is whether ther e is r ecord evi dence permit ting a conclusi on that a

reasonabl e cli ent in Capi tol’ s position could have beli eved it was a joint rep rese ntati on. Atkinson v . Haug , 622 A.2d 983, 986 (Pa. Super . 1993). I conclude that there is. W hile i t is a c lose r qu estio n be cau se th e rele van t reco rd is l ess w ell de velo ped , I also conclude that

Capitol has proffer ed enough evidence to avoid s ummary judgment on the issu e of w hethe r Cas ale’s alle ged m alprac tice resu lted in h arm to Cap itol. It is undisputed that Haven Pride asserted as a defense that the agreement was invalid because it was not ap proved in the man ner required for contracts w ith a director. 3 Wh ile Ho row itz and Stadle r acknowledged t hat the y may

have had other

reasons f

or settli ng as they

did, their de positio n testim ony refle cts their c once rn ab out this defe nse a nd w ould supp ort a finding t hat the y would not

have settled on the terms t hey di d but for t

hat concer

n.