J

### -A25004-17
NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 JASON COHEN : IN THE SUPERIOR COURT OF PENNSYLVANIA 

### Appellant

v.

LYNNE GOLD-BIKIN, ESQUIRE AND : No. 552 EDA 2017 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP Appeal 

### from the Order EnteredJanuary 13, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): June 

### Term, 2016 No. 2663
BEFORE: OTT, J., STABILE, J., and STEVENS*, P.J.E. MEMORANDUM BY OTT, J.: 

### FILED FEBRUARY

### 07, 

### 2018 Jason Cohen appeals 

### from the 

### order entered January 13, 2017, in the Philadelphia 

### County Court of Common Pleas. The 

### order sustained the 

### preliminary objections filed by Lynne Gold-Bicken, Esquire, and Weber Gallagher Simpson

### Stapleton Fires& Newby, LLP 

### (hereinafter

### "Attorney"), and dismissed, 

### with prejudice, Cohen's

### complaint, in 

### this legal 

### malpractice action. On appeal, Cohen argues the 

### trial court erred in finding he failed to 

### state a cognizable claim 

### for legal 

### malpractice. For the reasons below, we 

### affirm. The 

### instant legal 

### malpractice action emanates 

### from 

### Attorney's representation ofCohen in a 

### prior custody battlewith his now 

### ex-wife, Alexis Braid. The 

### following 

### pertinentfacts and procedural 

### history are gleaned 

### from

* FormerJusticespecially assigned to the Superior Court.J

### -A25004-17

Cohen's amended 

### complaint, this Court's unpublished decision in a 

### prior appeal of the 

### custody action, and the 

### trial court docket. 

### See First Amended 

### Complaint, 

### 11/15/2016; J.C. v. 

### A.B., 96 A.3d 1082 (Pa. Super. 

### 2014) (unpublished 

### memorandum). In June of 2012, Braid filed a 

### complaint in divorce in 

### Montgomery County, Pennsylvania, and 

### sought 

### primary legal and physical 

### custody of the 

### parties'only child, Kayla, born in November of2006. At 

### thattime, Braid was 

### pregnant with Cohen's second child. In July of 2012, Braid filed a 

### petition for special 

### relief and requested permission to 

### "relocate

### temporarily" to Florida in 

### orderto reside

### with her parents

### forthe birth of

### their second child. 

### 1.C.,

### supra, 96A.3d 1082 

### (unpublished memorandum at

### *1). On

### August 13,2012, Cohen and Braid entered into a 

### stipulation whereby the parties would share legal 

### custody of Kayla, but Braid would be 

### granted 

### primary physical 

### custody ofthe child, and be 

### permitted to move, 

### temporarily, to Florida to 

### "reside with her parents during the 

### duration of her 

### pregnancy." First Amended 

### Complaint, 

### 11/15/2016, at ¶ 7. On 

### August 31, 

### 2012, 

### after the 

### stipulation was filed in 

### court, 

### Attorneyentered an appearance on behalf of Cohen. 

### Thereafter, on 

### September 12, 2012, Braid gave 

### birth in Florida to the 

### parties' second 

### daughter, Kendall. In November of2012, Braid issued notice of her 

### intention to relocate 

### permanentlyto Florida. 

### See1.C.,

### supra, 96A.3d 1082 

### (unpublished memorandum at 

### *5). Cohen objected to the relocation, and, in 

### addition, filed a 

### petition seeking 

### genetictesting of Kendallto establish


## -2J

### -A25004-17

his 

### paternity. Braid and Kayla 

### returned to Pennsylvania as 

### agreed; however, Kendall remained in Florida. The 

### trial court conducted a 

### three-day custody/relocation hearing 

### from February 

### 4-6, 2013. Before the 

### court issued its 

### ruling, on March 1, 2013, Cohen filed an amended 

### custody complaint, seeking

### joint legal and 

### primary physical 

### custody of both 

### daughters, 

### after genetic testing established his 

### paternity of Kendall. On March 15, 2013, the 

### trial court entered an 

### order granting Braid 

### primary physical 

### custody of Kayla and 

### permitting her to relocate to Florida. The 

### order did not 

### mention Kendall. 

### See First Amended 

### Complaint, 

### 11/15/2015, at Exhibit C, Order,

### 3/15/2013. Cohenfiled a 

### motion 

### for reconsideration on March 20, 2013, butonly mentioned Kendall inthefinal two paragraphs: (1)stating 

### therewas a 

### "pending action

### for custodyofKendall in 

### Pennsylvania[;]"1 and (2) claiming Braid had refused to 

### "bring Kendall to Pennsylvania" or 

### permit him to see her in the hospital and 

### demonstrated a 

### pattern of

### obstructive behavior designed to 

### prevent contact between [Cohen] and his 

### children[.]" 

### Id. at Exhibit D, Motion 

### for Reconsideration, 

### 3/20/2013, at 7. Cohen's 

### request 

### for relief, however, only sought 

### primary physical 

### custody of Kayla. 

### See 

### id. at 8. The 

### court did not rule upon the motion 

### for reconsideration before Cohen filed a notice of appeal onApril 10, 2013.

1 Presumably, 

### this "pending action 

### for custodyof Kendall" was the amended 

### custody

### complaint filed by Cohen on March 1, 2013. 

## -3J

### -A25004-17

In a decision filed on January 14, 2014, a panel of

### this Court 

### affirmed, in 

### part, and reversed, in part. 

### See .7.C., 

### supra. Specifically, the panel 

### affirmed the award 

### of 

### primary physical 

### custody to Braid, but reversed the 

### ordergranting her 

### petition

### for relocation. 

### See

### id., 96A.3d 1082 

### (unpublished memorandum at

### *17). On January 17, 2014, Cohen filed a 

### petition to 

### modify in 

### the 

### trial court seeking 

### custody of Kendall. On remand 

### from the decision of the Superior Court, the 

### trial court entered a 

### temporary order on March 4, 2014, 

### granting Cohen sole legal and 

### primary physical 

### custody of Kayla. On March 19, 2014, 

### after securing Cohen the 

### relief he requested, 

### Attorney withdrew her appearance, and new counsel entered an appearance on behalf ofCohen. 

### Subsequently, on March 28, 2014, the parties entered into a 

### stipulation, wherebytheyagreed Cohen's custodial period would begin

### followingthe 2014 school year. Once again, 

### the stipulation did not 

### mention Kendall. By 

### order datedApril 8, 2014, the 

### trialcourtapproved the 

### stipulation as a final 

### orderof the court. 

### Thereafter, Braid filed 

### preliminary objections, contesting Cohen's 

### motion seeking 

### custody of Kendall. On June 8, 2015, the 

### trial court entered
an 

### order sustaining Braid's 

### preliminary objections, and dismissing Cohen's 

### complaintfor lack 

### of subject 

### matterjurisdiction. See Attorney's Preliminary Objections, 

### 12/5/2016, at Exhibit E, Order,

### 6/8/2015. Cohen did not appeal 

### that order. Inthe 

### interim, Cohen 

### instituted the present legal 

### malpractice action by 

### filing a 

### writ of summons on June 23, 2016. 

### Subsequently, on November 15,

- 4 -J

### -A25004-17
2016, he filed a 

### first amended 

### complaint, asserting a claim of breach 

### of 

### contract/covenant of good 

### faith based upon 

### Attorney's failure to pursue 

### custodyof Kendall. 

### See FirstAmended 

### Complaint, 

### 11/15/2016, at 1111 

### 29-32. Heclaims

### that as a 

### resultof

### Attorney's neglect, he"does not havefull physical and legal 

### custodyof Kendall or, in 

### fact, any 

### custody rightsat all asto Kendall; and has suffered 

### extreme and severe 

### emotional distress and 

### significant financial loss as a 

### result 

### thereof." 

### Id. at ¶ 28. On December 15, 2016, 

### Attorney filed 

### preliminary objections, asserting, 

### inter alia, Cohen 

### cannot establish a legal 

### malpractice claim because 

### (1) he would not have prevailed in the underlying dispute since the Montgomery County 

### court had no 

### jurisdiction to 

### determine the custody of Kendall; and 

### (2) he has not suffered actual harm because he can still seek 

### custody of Kendall in her home 

### state of Florida. 

### See PreliminaryObjectionsto First Amended 

### Complaint, 

### 12/5/2016, at 

### 5-8, 10-11. 

### After reviewing a 

### reply by Cohen and 

### another response by 

### Attorney, on 

### January 13, 2017, the 

### trial court entered an 

### order sustaining 

### Attorney's preliminary objections, and dismissing the claims 

### with prejudice. This appeal followed.2 Cohen's sole 

### argument on appeal asserts the 

### trial court erred in concluding he failed to 

### state a cognizable claim of legal 

### malpractice, and sustaining 

### Attorney's preliminaryobjections.

2 The 

### trial court did not 

### direct Cohen to file a concise 

### statement of errors complainedof on appeal 

### pursuantto Pa.R.A.P. 

### 1925(b). 

## -5J

### -A25004-17 

### "[Our] standard of review is denovo and

### thescope

### of review is 

### plenary" when 

### this Court considers a 

### trial court's order sustaining 

### preliminary objections.

### Jonesv. 

### Bd.

## ofDirectors

## ofValor

### CreditUnion, 169 A.3d 632, 635 (Pa. Super. 2017) 

### (quotation 

### omitted). Furthermore, if the 

### trial court's ruling 

### "will result in the denial of claim or a dismissal 

### of suit, 

### preliminary objections will be sustained only where the case is free and clear 

### of

### doubt." 

### Id. (quotation 

### omitted). To 

### state a cognizable claim of legal 

### malpractice a 

### plaintiff must plead the following 

### three elements: employment of the 

### attorney or 

### other basis 

### for a 

### duty; the 

### failure ofthe 

### attorneyto exercise 

### ordinaryskill and 

### knowledge; and 

### that the 

### attorney's negligence wasthe 

### proximate cause of damage to the 

### plaintiff. 

### 412 N. 

### FrontSt. 

### Assocs., LPv. 

### SpectorGadon & Rosen, P.C., 151 A.3d 646, 657 (Pa. Super. 

### 2016). The Pennsylvania Supreme Court has

### explained: An essential 

### elementto 

### this cause ofaction is 

### proofof actual loss 

### rather than a breach 

### of a professional 

### duty causing 

### only nominal damages, 

### speculative harm or the 

### threat of 

### future harm. Damages are considered 

### remote or speculative only if 

### there is 

### uncertainty concerning the 

### identification of the existence of damages 

### ratherthan the

### ability to precisely calculatethe 

### amount or 

### value of damages. In essence, a legal 

### malpractice action in Pennsylvania requires the 

### plaintiff to prove 

### that he had a 

### viable cause of action 

### against the party he wished to sue in the underlying case and 

### that the 

### attorney he hired was 

### negligent in prosecuting or defending 

### that underlying case 

### (often referred to as proving a "case 

### within a case"). 

### Kituskie v. 

### Corbman, 714 A.2d 1027, 1030 (Pa. 1998) 

### (internal citations omitted).


## -6J

### -A25004-17
Here, the 

### trial court found Cohen failed to 

### state a claim of legal 

### malpracticeagainst

### Attorneyfortwo reasons: 

### (1) Cohen did not establish he would have prevailed in a 

### custody action

### for Kendall in the

### trial court, and (2) Cohen failed to show he suffered actual damages. 

### See Trial Court Opinion, 

### 2/22/2017, at 2. First, in 

### determining Cohen failed to 

### demonstrate he would have prevailed in the 

### prior custody action, the 

### trial court explained 

### that because Kendall's 

### "home 

### state" is Florida, the Montgomery County 

### trial court would not have had 

### jurisdiction to make a 

### custody 

### determination. See 

### id. at 3. 

### Indeed, the 

### trial court noted 

### that Cohen did, in 

### fact, later seek 

### custody of Kendall in the Pennsylvania 

### courts, and 

### the 

### trial court in 

### that proceeding dismissed Cohen's 

### complaint for custody because it lacked 

### "Subject Matter Jurisdiction."3 

## Id. at 4. Second, in concluding Cohen's 

### purported damages were 

### merely speculative, the 

### court stated 

### "[t]he opportunity to obtain custody in Florida 

### remains; 

### [] Cohen has not suffered actual 

### harm; and, 

### there has been no adverse ruling asto 

### Kendall." 

### Id. at 2. Consequently, the

### trial courtsustained 

### Attorney's preliminary objections and dismissed 

### thecomplaint with prejudice. Inexplicably, Cohen does not address 

### the specific 

### elements of a legal 

### malpractice action in his brief. Rather, he asserts the 

### Montgomery County

3 In

### fact, the

### trial court noted

### that Cohen's

### "sole legal 

### argument"on 

### this issue in his response to 

### Attorney's preliminary objections, "was a 

### lengthy quote 

### from a 

### memorandum submitted by a successor 

### attorney in the underlying custody 

### matter[.]" Trial Court Opinion, 

### 2/22/2017, at4.

- 7 -J

### -A25004-17

trial court had 

### jurisdiction over Kendall, so 

### the court erred in dismissing his 

### complaint on 

### that basis. 

### See Cohen's Brief at 17. Moreover, Cohen claims he did 

### suffer"actual 

### harm"because, as a 

### result ofBraid's

### alienation of Kendall in Florida, he

### "sustained severe 

### emotional distress (and 

### financial loss

### towards 

### visitation 

### out-of-state)." 

### Id. at 17. With regard to the 

### jurisdictional issue, Cohen asserts 

### that although Florida may be Kendall's

### "home 

### state" pursuant to 

### the Uniform Child Custody Jurisdiction Act ("UCCJA"),4 

### "in certain circumstances the 

### trial court may 

### determine the home 

### state is notthe 

### most 

### appropriate 

### forum." Cohen's Brief at 18, 

### citing 

### Merman v. 

### Merman, 603 A.2d 201 (Pa. Super. 1992). Cohen insists Braid 

### "implicitly" conceded Pennsylvania was the 

### "most appropriate 

### forum" forthe 

### parties' custody proceedings, and acted 

### with "unclean hands" when she alienated Cohen 

### from Kendall, and refused to bring the child to Pennsylvania. 

### Id. Furthermore, he 

### maintains a best 

### interest of the child analysis also results in a 

### determination 

### that Pennsylvania is the most 

### appropriateforum because Kendall's 

### sister, Kayla, resides 

### there with Cohen, and the parties "had 

### initiated custody proceedings in 

### Pennsylvania." 

### Id. at 19. We find Cohen's 

### argument unpersuasive. Section 5421 

### of the UCCJA provides 

### that a Pennsylvania 

### court has 

### jurisdiction to make an 

### initial child 

### custody 

### determination only in the following circumstances:

4

### See 23 Pa.C.S. §§ 5401 

## etseq. 

## -8J

### -A25004-17 (1) 

### this Commonwealth is the home

### state ofthe child on 

### the date ofthe 

### commencementofthe proceedingorwasthe home 

### state of the child 

### within six 

### months before the 

### commencement of the proceeding and the child is absent

### fromthis Commonwealth but a 

### parent or person acting as a 

### parent continues to live in 

### this Commonwealth; (2) a 

### court of 

### another state does not have 

### jurisdiction under paragraph (1) or a 

### court of the home 

### state of the child has declined to exercise 

### jurisdiction on the ground 

### that this Commonwealth is 

### themore 

### appropriateforum undersection5427 

### (relating to 

### inconvenient 

### forum) or 5428 

### (relating to 

### jurisdiction declined by reason of 

### conduct) and: (i) the child and thechild's parents, orthe child and at least one 

### parentor a person acting as a 

### parent, have a 

### significant connection 

### with this Commonwealth 

### other than mere physical presence; and 

### (ii) substantial evidence is available in this Commonwealth concerningthechild'scare, 

### protection,training and personal 

### relationships; (3) all courts having

### jurisdiction under paragraph (1) or 

### (2) have declined to exercise

### jurisdiction onthe ground 

### that a 

### courtofthis Commonwealth is the more 

### appropriate forum to 

### determine the custodyofthe child under section 5427 or 5428; or (4) no 

### court of any 

### other state would have

### jurisdiction under the criteria specified in paragraph 

### (1), (2) or 

### (3).
23 Pa.C.S. § 

### 5421(a). 

### It is 

### importantto note the

### statutewas revised in 

### 2004, andthe Commentfollowing the revisionexplains

### thatamong the changes was 

### "[t]he jurisdiction of the home 

### state has been 

### prioritized over other 

### jurisdictional bases." 23 Pa.C.S. § 5421, Uniform Law Comment. Section 5402 defines a child's 

### "home 

### state" as: The 

### state in which a child lived 

### with a 

### parent or a person acting as a 

### parent

### for at leastsixconsecutive 

### months 

### immediately before the 

### commencement of a child 

### custody proceeding. 

### Inthe case 

### of a 

### childsixmonths

### ofage

### oryounger,the

### term means

### the 

## -9J

### -A25004-17


### state in 

### which the child lived 

### from 

### birth 

### with any 

### of the persons 

### mentioned. A period 

### of

### temporary absence of any 

### of the mentioned persons is 

### partofthe period. 23 Pa.C.S. § 5402 (emphasis supplied). Accordingly, under a plain reading of the 

### statute, Pennsylvania did not have

### jurisdiction to make an 

### initial custody 

### determination of Kendall. Kendall
was born in Florida on 

### September 12, 2013, and has remained 

### there during these proceedings. When Cohen filed his amended 

### custody complaint on March 1, 2013, Kendall was less

### than six 

### months' old. 

### Therefore, pursuantto Section 5402, Florida is her 

### "home 

### state." Moreover, none of the remaining bases 

### for

### jurisdiction in Pennsylvania set 

### forth in Section 5421 are applicable since Florida has not declined to exercise

### jurisdiction.5 Furthermore, Cohen's reliance on 

### Merman,supra, and 

### the significant contacts test, is misplaced. First, 

### Merman was decided under the 

### prior version of the UCCJA. 

### See

### Merman, 

### supra, 603 A.2d at 204 

### (relying upon now repealed 23 Pa.C.S. §§ 

### 5348). Second, in 

### that case, the 

### father initiated custodyproceedings in Pennsylvania

### within six

### months'ofthe 

### mother's move, 

### with the children, to New Jersey. 

### See 

### id. at 202. 

### Therefore, Pennsylvania
wasthe home 

### state ofthe 

### childrenat

### thetime ofthe 

### initiation of proceedings.

5 Cohen implies Pennsylvania had

### jurisdiction over Kendall because Braid was 

### "still a 

### resident of Pennsylvania" when he 

### initiated the custody proceedings. 

### See Cohen's Brief at 17. However, he provides no legal 

### support for this assertion. Section 5402 

### clearly states 

### that the 

### "home 

### state" of a child six 

### monthsofage or

### younger is

### "the state in whichthe child lived

### from birth

### with" a parent. 23 Pa.C.S. § 5402. Had Kendall been born in Pennsylvania, our analysis would be 

### different.

- 10 -J

### -A25004-17

See 

### id. at 204. 

### Third, because the children had been living in New Jersey since the move, the 

### father conceded New Jersey also had

### jurisdiction under the UCCJA. 

### See

### id., citing

### formerstatute23 Pa.C.S. § 

### 5344(a)(2). Therefore, in 

### that case, 

### the Pennsylvania 

### court was 

### permitted to consider which 

### jurisdiction was a more 

### appropriate forum under

### formerstatute, 23 Pa.C.S. § 

### 5348(e). Conversely, in the present case, the Montgomery County 

### court never had 

### jurisdiction over Kendall. 

### Accordingly, the 

### "significant contacts" test is 

### irrelevant underthefacts ofthis case. 

### See 23 Pa.C.S. § 5421, Uniform Law 

### Comment

### ("[A] significantconnection state mayassume

### jurisdiction

### only when 

### there is 

### no 

### home 

### state or when 

### the home 

### state decides that the 

### significant connection statewould be a more

### appropriate forum under section 207 or 208 (section 5427 or 

### 5428).") (emphasis supplied). Likewise, 

### while
we recognize the importance of a best 

### interestofthechild analysis in 

### custody proceedings, the analysis is unnecessary where, as here, the Montgomery County 

### court had no

### jurisdiction overthe child. Because we agree 

### with the 

### trial court 

### that Pennsylvania had no 

### jurisdictionto

### determine thecustodyofKendall, Cohen's 

### request

### foremotional distress and 

### travel expense damages necessarily fails. 

### Indeed, had 

### Attorney sought custody of Kendall in 

### Montgomery County, her 

### petition would have been denied. Cohen may still seek 

### custody of Kendall in the Florida courts. Lastly, we note Cohen 

### objects to the 

### trial court's consideration of the 

### ultimate ruling in 

### underlying custody proceeding, which in June of 2015, dismissed his

### complaint seeking 

### custody of Kendall due to the lackof 

### subject

- 11 -J

### -A25004-17

matter

### jurisdiction. See Cohen's Brief at 20. He emphasizes 

### "[p]reliminary objections mayonly rest upon theComplaint's 

### sufficiency" and ifthe record is not

### sufficiently developed, 

### "thenthis 

### matter should be remanded to the Court ofCommon Pleas to develop the child 

### custody 

### record." 

### Id. Generally, a 

### trial court's review of 

### preliminary objections in the nature of

### demurrer, "should be 

### restricted to thefacts alleged in 

### the complaint, and a 

### trial court should not 

### take 

### judicial notice of collateral 

### facts." 

### 220 P'ship v. 

### Philadelphia Elec. Co., 650 A.2d 1094, 1097 (Pa. Super. 

### 1994). However,

a 

### court may take

### judicial notice of a 

### fact "which the parties have 

### admitted or which is 

### incorporated into the 

### complaint by reference to a 

### prior court 

### action." 

### Id. Indeed, 

### "[t]he sufficiency of a 

### complaint which refers to a separate and 

### distinct proceeding is 

### determined by a 

### consideration of all 

### relevant matters therein set 

### forth." Gulentz v. 

### Schanno Transp., 

### Inc., 513 A.2d 

### 440, 443 (Pa. Super. 

### 1986), appealdenied, 527 A.2d 541 (Pa. 

### 1987), and 527A.2d 543 (Pa. 1987). Here, the underlying custody proceedings were referenced in, and 

### relevant to, the 

### complaint because Cohen's cause of action was based upon 

### Attorney's purported negligence in 

### representing him in those proceedings. Nevertheless, our conclusion 

### that Pennsylvania did not have 

### jurisdiction to 

### determinethe custodyof Kendallwas not based upon

### theJune 8, 2015, ruling ofthe Montgomery CountyCourtofCommon Pleas. Rather, itwas based upon the facts set 

### forth in the 

### complaint and 

### underlying custody proceedings, as well as the applicable law.

- 12 -J

### -A25004-17
Accordingly, because we agree Cohen has failed to 

### state a cognizable claim of legal 

### malpractice against 

### Attorney, we 

### affirm the 

### order sustaining 

### Attorney's preliminary objectionsand dismissing the

### complaintwith prejudice. Orderaffirmed. Judgment Entered.


### Jseph D. 

### Seletyn, Prothonotary


### Date:2/7/18

- 13 -