J-S73017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NITA M. FANDRAY & A BRIGHT FUTURE 

ADOPTIONS, INC.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

ALAN S. BAUM, MATIS BAUM O’CONNOR 

(FORMERLY MATIS BAUM RIZZA 

O’CONNOR), & PRO ASSURANCE 

SPECIALTY INSURANCE, INC.

Appellees No. 199 WDA 2016

Appeal from the Order January 13, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD-12-015513

*****

NITA M. FANDRAY & A BRIGHT FUTURE 

ADOPTIONS, INC.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

ALAN S. BAUM, MATIS BAUM O’CONNOR 

(FORMERLY MATIS BAUM RIZZA 

O’CONNOR), & PRO ASSURANCE 

SPECIALTY INSURANCE, INC.

Appellees No. 200 WDA 2016

Appeal from the Order January 13, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD-12-015513

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J. 
J-S73017-16

- 2 -

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 17, 2016

Nita Fandray (“Fandray”) and A Bright Future Adoptions, Inc. (“Bright 

Future”), (collectively “Plaintiffs”), appeal from two orders1entered in the 

Court of Common Pleas of Allegheny County granting summary judgment. 

The first order, in favor of Alan Baum and Matis Baum O’Connor (formerly 

Matis Baum Rizza O’Connor) (“Baum”), and the second, in favor of 

ProAssurance2 Specialty Insurance Company (“ProAssurance”), resulted in 

the dismissal of Plaintiffs’ Amended Complaint with prejudice. After our 

review, we affirm.

Fandray, a Pennsylvania attorney, owned and operated an adoption 

agency, Bright Future. In 2009, Patrick and Kimberly Hannon filed a lawsuit 

in Lawrence County against another adoption agency, Adoption Related 

Services, Inc., alleging breach of contract, defamation, and intentional 

infliction of emotional distress (“the Hannon suit”). The Hannon suit 

stemmed from the Hannons’ efforts to adopt two children from Bright Future 

and Adoption Related Services, Inc. In 2010, Fandray and Bright Future 

____________________________________________

1 See Strausser v. Pramco, III, 944 A.2d 761, 764 (Pa. Super. 2008) 

(where multiple defendants in single action are removed from case in 

piecemeal fashion by separate orders, each separate judgment becomes 

appealable when matter is resolved against final defendant, and appeal of 

those orders may be commenced as to all defendants by single notice of 

appeal taken from order resolving claim against final defendant). 

2 We note that “Pro Assurance” and “ProAssurance” are used 

interchangeably throughout the trial court record and appellate filings. 
J-S73017-16

- 3 -

were added as defendants in the suit. At that time, Fandray and Bright 

Future were insured by ProAssurance. ProAssurance assigned Attorney 

Baum and his firm to represent Plaintiffs in the Hannon suit. 

On September 17, 2010, ProAssurance notified the insureds, Fandray 

and Bright Future, that Baum would represent them and that they were 

represented under a reservation of rights. Thus, to the extent that the 

Hannons’ claims were not caused by a “professional incident” as defined in 

the policy, or were specifically excluded from coverage under the policy, 

there would be no coverage for the claims. ProAssurance explained that it 

“reserves the right to deny indemnity for any damages awarded in this case 

for claims excluded from coverage.” ProAssurance Letter to Policyholders, 

9/17/10. In essence, if the Hannons suit were successful, there was the 

potential that Fandray and Bright Future would be left to pay a jury award 

out of personal assets. Notably, the ProAssurance policy contained an 

“eroding liability” limit, so that when defense costs exceeded $100,000.00, 

further defense costs would erode the $100,000.00 indemnity coverage. 

Thus, the longer the action went on, the greater the potential for Fandray 

and Bright Future to be left with little or no insurance money to pay any jury 

verdict, should the Hannons ultimately win at trial or on appeal. 

On September 21, 2010, Attorney Baum entered his appearance on 

behalf of Fandray and Bright Future. He filed an Answer and New Matter to 

Plaintiffs’ Amended Complaint, and raised all affirmative defenses Fandray 

believed protected her and Bright Future in the underlying action. He 
J-S73017-16

- 4 -

participated in discovery, filed a motion for judgment on the pleadings, and 

prepared a brief in support of that motion. Fandray, an experienced 

practicing attorney herself, participated in her defense, and she directed 

Attorney Baum to withdraw the motion for judgment on the pleadings. See

Praecipe to Withdraw Motion, 6/9/11. 

By letter dated May 19, 2011, ProAssurance and its outside counsel, 

Anthony J. Williot, Esquire, advised Fandray that ProAssurance believed a 

settlement with the Hannons was in Fandray’s and Bright Future’s best 

interests. In mid-June, through direct negotiations between ProAssurance 

and counsel for the Hannons, ProAssurance settled the claim for $62,000.00, 

within policy limits, without Fandray’s consent. 

Thereafter, Fandray and Bright Future filed a legal malpractice action 

against Attorney Baum and his law firm and a breach of contract/bad faith 

action against ProAssurance (“the Fandray suit”). The Fandray suit alleged 

that ProAssurance, in bad faith, needlessly settled the Hannon suit for 

$62,000 because Baum negligently failed to put forth defenses available to 

Fandray and Bright Future, which would have caused them to be dismissed 

from the case. The Fandray suit averred that the unwarranted settlement 

ruined her professionally and financially, devastated her emotionally, and 

destroyed her adoption agency. 

Baum and ProAssurance filed separate motions for summary 

judgment. The trial court granted both motions. Plaintiffs appealed and 

they present the following issues for review:
J-S73017-16

- 5 -

1. Did the trial court abuse its discretion and/or err as a 

matter of law in granting summary judgment [and] 

dismissing the complaint against Alan Baum and his 

law firm?

2. Did the trial court abuse its discretion and/or err as a 

matter of law in granting summary judgment [and] 

dismissing the complaint against ProAssurance 

Specialty Insurance Company? 

Appellants’ Brief, at 3-4. 

We review an appeal of the trial court’s entry of summary judgment as 

follows: 

Our scope of review of a trial court’s order granting or denying 

summary judgment is plenary, and our standard of review is 

clear: the trial court’s order will be reversed only where it is 

established that the court committed an error of law or abused 

its discretion. Summary judgment is appropriate only when the 

record clearly shows that there is no genuine issue of material 

fact and that the moving party is entitled to judgment as a 

matter of law. The reviewing court must view the record in the 

light most favorable to the nonmoving party and resolve all 

doubts as to the existence of a genuine issue of material fact 

against the moving party. Only when the facts are so clear that 

reasonable minds could not differ can a trial court properly enter 

summary judgment.

Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122, 124 (Pa. 

Super. 2007) (citations omitted).

In order to establish legal 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. Epstein v. 
J-S73017-16

- 6 -

Saul Ewing LLP, 7 A.3d 303, 313 (Pa. Super. 2010); Myers v. Robert 

Lewis Seigle, P.C., 751 A.2d 1182, 1184 (Pa. Super. 2000).

Pennsylvania Rule of Civil Procedure 1035.2 states, in relevant part:

After the relevant pleadings are closed, but within such time as 

not to unreasonably delay trial, any party may move for 

summary judgment in whole or in part as a matter of law . . . if, 

after the completion of discovery relevant to the motion, 

including the production of expert reports, an adverse party who 

will bear the burden of proof at trial has failed to produce 

evidence of facts essential to the cause of action or defense 

which in a jury trial would require the issues to be submitted to a 

jury.

Pa.R.C.P. 1035.2(2). 

Count I of Plaintiffs’ Amended Complaint, Negligence/Malpractice, 

avers the following:

Defendants Baum and the Firm negligently failed to properly 

assert and prosecute in the Suit the absolute defenses available 

to Plaintiffs, said negligence directly and proximately causing the 

damages set forth herein.

Defendant Baum’s negligence and malpractice was the result of 

his being preoccupied with certain personal, inappropriate 

desires and interests, and the overt expressions of said interests 

and desires to Plaintiff Fandray, followed by her rejection of said, 

said desires and interests being inconsistent with the 

professional duties and obligations he maintained toward 

Plaintiffs. 

Amended Complaint, 11/14/12, at ¶¶ 19, 20 (emphasis added). In its 

Answer, Baum denied the averments, stating that at all relevant times 

“Attorney Baum and the Firm exercised the requisite skill, knowledge and 

care required of members of the legal profession and adhered to all 
J-S73017-16

- 7 -

applicable professional rules, regulations, laws and guidelines.” Answer and 

New Matter to Plaintiffs’ Amended Complaint, 2/4/13, at ¶19. Further, 

Attorney Baum specifically denied “any type of personal or inappropriate 

desires and interests towards Ms. Fandray or that he expressed any interests 

or desires to Ms. Fandray.” Id. at ¶ 20. 

In their Brief in Opposition to Summary Judgment, Plaintiffs 

acknowledge that Attorney Baum in fact did raise the “absolute defenses of 

immunity, privilege, statute of limitations, truth, and the corporate veil to 

the underlying Hannon suit in the Answer and New Mattter he filed.” 

Plaintiffs’ Brief in Opposition to Summary Judgment, 1/4/16, at 4. Further, 

in her deposition, Fandray acknowledged this as well. See Fandray 

Deposition Vol. I, 7/16/14, at 35-36. 

The trial court noted that Plaintiffs now state that the legal malpractice 

emanated from Attorney Baum’s failure to “timely prosecute” the defenses 

and successfully terminate the Hannon suit prior to the date ProAssurance 

settled the claim in mid-June 2011. However, Attorney Baum entered his 

appearance on September 21, 2010 and did, as stated above, file an Answer 

and New Matter containing the absolute defenses. He also drafted and 

served interrogatories, took depositions and defended depositions, 

participated in strategy sessions with Fandray, drafted and filed a Motion for 

Judgment on the Pleadings, and drafted a brief in support of the Motion for 

Judgment on the Pleadings. Notably, at Fandray’s request, Attorney Baum 

withdrew the Motion for Judgment on the Pleadings on June 9, 2011. Thus, 
J-S73017-16

- 8 -

Plaintiffs claim Baum’s failure to have “timely prosecuted” the defenses and 

won a full and final dismissal of all claims within nine months, before 

ProAssurance settled the claim, fell below the standard of care and thus 

amounted to legal negligence. As the trial court stated, “It is illogical to 

require the trial lawyer defending the [u]nderlying [a]ction to structure a 

defense based upon some fluid, potential deadline[.]” Trial Court Opinion, 

4/12/16, at 8. In fact, Fandray acknowledged in her deposition that 

Attorney Baum was not aware of the settlement until it had occurred. 

Fandray Deposition, 9/29/14, at 169-70. Further, Fandray admitted that it 

was ProAssurance’s decision to settle the case. Id. at 171. Plaintiffs’ 

deadline is arbitrary. We find no abuse of discretion or error of law in the 

trial court’s determination that Plaintiffs have failed to produce evidence of 

facts essential to show breach of duty or causation, essential elements of 

their legal malpractice claim. Englert, supra.

Next, Plaintiffs claim the court erred in granting ProAssurance’s motion 

for summary judgment. In their complaint, Plaintiffs alleged breach of 

contract and bad faith in connection with ProAssurance’s settlement of the 

Hannon suit. This claim, too, is meritless. 

Under the terms of the policy, Fandray and Bright Future granted 

ProAssurance the right and duty to settle any claims. The policy provides in 

relevant part:

E. COVERAGE AGREEMENT RELATING TO THE DEFENSE OF 

CLAIMS
J-S73017-16

- 9 -

The Company shall have the right and duty to defend any 

claim against the insured even if any of the allegations are 

groundless, false or fraudulent. The Company may make 

such investigation and settlement of any claim, 

professional incident or occurrence which may result in a 

claim, as it deems expedient. 

Social Services Professional Liability Insurance and Commercial General 

Liability Insurance Policy, 12/08, at 2 (emphasis added). 

In mid-June 2011, “through direct negotiations between ProAssurance 

and counsel for the Hannons, ProAssurance had the opportunity to settle the 

[Hannon suit] on behalf of Fandray and Bright Future within the policy limits, 

and therefore without any payment by Fandray or Bright Future.” Trial 

Court Opinion, supra at 11. The court determined that by the terms of the 

policy, there is no question that ProAssurance had the authority to settle the 

Hannon claim without Fandray’s consent and that ProAssurance acted in 

good faith. We agree that no reasonable juror could decide otherwise. 

Therefore, we find no abuse of discretion or error of law. Englert, supra. 

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016
J-S73017-16

- 10 -