J-A21043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL KACHMAR, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

WILLIAM J. LITVIN, ESQ. d/b/a LAW 

OFFICES OF SALING AND LITVIN,

:

:

No. 2794 EDA 2015

Appeal from the Judgment entered September 10, 2015

in the Court of Common Pleas of Chester County,

Civil Division, No(s): 2013-06092

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J. FILED NOVEMBER 17, 2016

Michael Kachmar (“Kachmar”) appeals from the Judgment entered 

against him and in favor of William J. Litvin, Esquire, d/b/a Law Offices of 

Saling and Litvin (collectively, “Litvin”), in this professional negligence case. 

We affirm.

In its October 22, 2015 Opinion, the trial court set forth the factual 

and procedural history underlying the instant appeal, which we adopt as 

though fully restated herein. See Trial Court Opinion, 10/22/15, at 1-3; see 

also Trial Court Opinion, 3/18/15, at 1-4. 

Following a bench trial, the trial court found in favor of Litvin and 

against Kachmar. Kachmar filed post-trial Motions, which the trial court 

denied. Thereafter, Kachmar filed the instant timely appeal, followed by a 

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained 

of on appeal.
J-A21043-16

- 2 -

Kachmar presents the following claims for our review: 

(1) Did the trial court commit an error of law in granting Litvin’s 

Motion for Bifurcation, further remanding the “case-within-thecase” to a non-jury trial?

(2) Did the [trial court] commit an error of law in holding [that] 

Muhammad [v. Strassburger, et al., 587 A.2d 1346 (Pa. 

1991),] per se[,] precluded a verdict in favor of Kachmar at 

trial?

Brief for Appellant at 4. 

Kachmar first claims that the trial court erred when it granted Litvin’s 

Motion for Bifurcation, thereby allowing the “case-within-the-case”

1

to 

proceed without a jury. Id. at 17. Kachmar contends that at all times, he 

demanded a jury trial, and that the bifurcation and non-jury trial of the 

“case-within-the-case” violated his rights under the Pennsylvania and United 

States Constitutions, as well as Pa.R.C.P. 1007.1(c)(1). Id. According to 

Kachmar, “the liability of Litvin (which is separate and distinct from the 

case-within-the-case proof) necessarily became part of the trial.” Id. at 18. 

Kachmar contends that “the non-jury trial confused Litvin’s liability with the 

Order of bifurcation[,] vis-à-vis ‘case-within-the-case’ proofs—with damages 

 

1 As we will discuss infra, 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”). Poole v. Workers’ Comp. Appeal Bd. 

(Warehouse Club, Inc.), 810 A.2d 1182, 1184 (Pa. 2002).
J-A21043-16

- 3 -

being relatively simplistic as mathematical (i.e., the underlying settlement 

amount to Christine Kachmar).” Id. 

Under Pa.R.C.P. 213(b), the decision whether to bifurcate a trial is 

within the trial court’s discretion. Gallagher v. Pa. Liquor Control Bd., 

883 A.2d 550, 557 (Pa. 2007). Accordingly, we review the trial court’s 

ruling for an abuse of discretion. Id.

In its Opinion, the trial court addressed Kachmar’s challenge to the 

bifurcation (and the resulting bench trial), and concluded that it lacks merit. 

Trial Court Opinion, 10/22/15, at 9-10 (addressing bifurcation), 10-11 

(addressing the propriety of a bench trial in the underlying case). We agree 

with the sound reasoning of the trial court, as set forth in its Opinion, and 

affirm on this basis.2 See id.

Kachmar next claims that the trial court erred in holding that the 

Pennsylvania Supreme Court’s holding in Muhammad precluded a verdict in 

favor of Kachmar. Brief for Appellant at 9. Kachmar asserts that he “is not 

attempting to second-guess his attorney’s settlement valuation. On the 

contrary, [he] contends strict settlement causative legal errors.” Id. at 20. 

 

2

In its Opinion, the trial court adopted, inter alia, the rationale set forth in

its February 13, 2015 Order granting bifurcation. In that Order, the trial 

court stated the following:

A review of the underlying divorce action reveals that [Christine] 

Kachmar did not petition the court for a jury trial on the issue of 

spousal support, nor did the court issue such a ruling regarding a 

jury trial on any matter in the underlying divorce action.

Trial Court Order, 2/13/15, at 1 n.1. 
J-A21043-16

- 4 -

Kachmar contends that there is a “negligence exception” to the Pennsylvania 

Supreme Court’s holding in Muhammad. Id. Kachmar argues in the 

alternative that Muhammad does not apply in this case. Id. According to 

Kachmar, “the settlement at issue regarded the divorce litigation[,] not 

Litvin’s preparation and presentation of the defective postnuptial 

agreement—two distinct proceedings (i.e., transactional v. litigation)—

necessarily distinguishing Muhammad’s rationale.” Id.

“Our review of the trial court’s decision after a non-jury trial is limited 

to determining whether the findings of the trial court are supported by the 

competent evidence and whether the trial court committed error in the 

application of law.” Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa. 

Super. 2004). It is not our role to pass on the credibility of witnesses, as 

the trial court clearly is in the superior position to do so. Id. 

As our Supreme Court has explained,

[a]n essential element to this cause of action is proof of actual 

loss[,] rather than a breach of a professional duty causing only 

nominal damages, speculative harm or the threat of future 

harm. [Rizzo v. Haines, 555 A.2d 58,] 68 [(Pa. 1989)]. 

Damages are considered remote or speculative only if there is 

uncertainty concerning the identification of the existence of 

damages[,] rather than the ability to precisely calculate the 

amount or value of damages. Id. ....

* * *

[The plaintiff] must initially establish by a preponderance of the 

evidence that he would have recovered a judgment in the 

underlying action .... It is only after the plaintiff proves he would 

have recovered a judgment in the underlying action that the 

plaintiff can then proceed with proof that the attorney he 
J-A21043-16

- 5 -

engaged to prosecute or defend the underlying action was 

negligent in the handling of the underlying action and that 

negligence was the proximate cause of the plaintiff’s loss since it 

prevented the plaintiff from being properly compensated for his 

loss.

Kituskie v. Corbman, 714 A.2d 1027, 1029-30 (Pa. 1998) (footnote 

omitted). 

Here, the trial court determined that Christine Kachmar would not 

have been successful in setting aside the post-nuptial agreement. Trial 

Court Opinion, 3/18/15, at 9, 11. In addition, the trial court observed that 

Kachmar decided to settle the underlying litigation over the post-nuptial 

agreement, and fails to argue fraudulent inducement to enter into the 

settlement. Id. at 9-11. We agree with the sound reasoning of the trial 

court, in resolving these issues, and affirm on the basis of its March 18, 

2015 Opinion with regard to these claims. See id. at 9-11; see also Trial 

Court Opinion, 10/22/15, at 6-9. 

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016
Ii 

~ i 

.: 

settlement agreement and claims that he was forced to settle for such amount as the 

ultimately transferred to his ex-wife, Mrs. Kachmar, in a subsequent property 

,, 

the post-nuptial agreement. Plaintiff was dissatisfied with the amount of property he 

a post-nuptial agreement and subsequent divorce. Plaintiff alleges that Defendant 

committed legal" malpractice by failing to include a :release of spousal support clause in 

representation by Defendant, William J. Litvin, Esquire, of Plaintiff in the preparation of 

According to the Amended Complaint, this civil action arises out of the 

II. .EbCTS 

September 18, 2015. The matter is now ready for determination. 

Errors Complained Of on Appeal. The Concise Statement was filed on or about 

September 3, 2015, the Court directed Plaintiff to prepare a Concise Statement of 

August 17, 2015. Plaintiff timely filed his appeal on September 2, 2015. By Order of 

:, 

Kachmar (hereinafter "Plaintiff') from the denial of Motion for Post-Trial Relief entered 

This matter comes before this Court as a result of an appeal filed by Michael 

I. PROCEDURAL SETTING 

OPINION PURSUANT TO Pa.R.A.P. 1925 

Matthew B. We1sberg, Esquire, on behalf of Plaintiff/Appellant 

Jeffrey B. Mccarron'- Esquire, on behalf of Defendants/Appellees 

NO. 13-06092 

CIVIL ACTION 

VV!LLIAM J. LITVIN, ESQUIRE d/b/a 

LAW OFFICES OF SALING & 

LITVIN 

r·., 

.. 

VS. 

IN THE COURT OF COMMON PLEAS 

CHESTER COUNTY, PENNS.YLVANIA 

MICHAEL KACHMAR 

Circulated 10/20/2016 04:03 PM
2015. Following trial, the parties were permitted to submit proposed findings of fact 

j j and conclusions of law. Thereafter, on March 18, 2015, this Court issued a Decision 

I i ! 

'I 

;! 2 

I 

limine, thereby bifurcating the action and granting a bench trial on the sole issue of 

whether the underlying· petition would have been successful. 

A bench trial was heard on the underlying Petition to Set Aside ori February '17, 

requirement of this legal malpractice action, this Court granted Defendants' motion in 

to a jury trial as of right. For purposes of resolving the "case within a case" 

Defendants subsequently filed a motion in llmine seeking bifurcation of this 

action on the basis that in the underlying family cburt matter, Plaintiff ~;s not entitled 

September 23, 2014, without opinion. 

and Gutnick, 587 A.2d 1346 (Pa. 1991), rehearing denied, 598 A.2d 27 (1991). This 

Court denied the. Defendants' Motion for Summary Judgment by Order entered 

raising an argument that Plaintiff's claims were barred as a matter of law by the 

Superior Court's decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod, 

At a later stage in the proceedings, Defendants moved for Summary Judgment, 

2014. 

damages. This Court sustained the Preliminary Objectionsby Ordered dated April 30, 

April 2, 2014, seeking to strike the claims for attorney's fees and emotional distress 

Defendants filed- Preliminary Objections tothe Amended Complaint on or about 

breach of fiduciary duty .clalm. 

and fair dealing, and breach of fiduciary duty claims, · He eventually :withdrew the 

Plaintiff asserted professional negligence, breachof contract/covenantof good faith 

result of the absence of the spousal support waiver in the post-nuptial agreement. 
3 

I 

I 

j I 

; I 

4. Did the Court err in holding a bench trial on the issue of the "case wfthin 

Plaintiffs legal malpractice action? 

3. Did the Court err in bifurcating the "case within a case" element of 

legal malpractice action? 

2. Did the Court err in holding that Muhammad applied to bar Plaintiffs 

1: Did theCourt err in entering judgment against Plaintiff? 

follows: 

allegations of error by this Court, which are summarized into four categories. as 

that Plaintiff now appeals. 

Plaintiffs Concise Statement of Matters Complained Of on Appeal contains 13 

- 

August 17, 2015, this Court denied Plaintiffs post-trial motions. It is from this Order 

evidence was contrary to this Court's verdict in favor of Defendant. By Order dated 

on the Petition to Set Aside was heard at a bench trial. Finally, Plaintiff argued that the 

evidence presented at trial supported a verdict in his favor and that the weight of the 

that this Court erred in bifurcating the trial so that the issue of Mrs. Kachmar's success 

from offering evidence of his increased risk of harm. Plaintiff also argued that the 

Court erred , in. applying ft(/uhammad to bar his claims . after previously denying 

Defendants' Motion for Summary Judgment on the issue. · Plaintiff additionally claimed 

new trial, Plaintiff claimed he was harmed by this Court's ruling which prohibited him 

in favor of Plaintiff or, in the alternative, a new trial. As a basis for the· request for a 

On March 30,. 2015, Plai,ntiff filed a motion for post-trial relief, seeking judgment 

herein and attached hereto for ease of reference. . . 

pursuant to Pa.R.C.P. 1038 in favor of Defendants, which is hereby incorporated 
4 

conflicts in evidence. See, Ruthreutt, Inc. v. Ravin, Inc., 914 A.2d 880 (Pa. Super. 

2006). Consequently, the trial judge's findings made after a bench trial must be given 

fact-finder and has the authority to make credibility determinations and to resolve 

judge committed error 'in the application of law. In a bench trial, the trial judge acts as 

trial court's decision in a non-jury trial, the appellate court must determine whether the 

findings of the trial court are supported by competent evidence and whether the trial 

in Plaintiffs favor or, in the alternative, a new trial. When reviewing a 

This appeal arises from the denial of Plaintiff's post-trial relief seeking judgment 

A. Standard of Review 

V. RA TIO NALE 

D. Yes, a bench trial was proper on the issue of the "case within a case" 

. . 

C. Yes, bifurcation of the "case within a case" was proper. 

B. Yes, Muhammad is good law that applied to bar Plaintiffs legal 

malpractice action. 

A. Yes, judgment was properly entered in favor of Defendants. 

JV. HOLDINGS 

a case". 

D. Whether a bench trial was properly held on the issue of th_? "case within 

C. Whether bifurcation of the "case within a case" was proper. 

A. Whether judgment.should have been :entered in. favor of Defendants. 

B. Whether Muhammad applied to bar Plaintiff's legal malpractice action. 

Ill. ISSUES 

a case" in spite of Plaintiffs jury demand? 
5 

Trial courts have broad discretion to grant or deny a new trial It is well1991). 

material fact. See, Lilley v. Johns-Manville Corp., 596 A.2d 203, 207 (Pa. Super. 

notwithstanding the verdict is not to be entered where the evidence is conflicting on a 

record and conclude that the evidence is such that a verdict for the movant is beyond 

peradventure. See, Eichman v. McKeon, 824 A.2d 305 (Pa. Super. 2003). Judgment 

verdict in rnovant's favor. As to the second basis, a court must review the evidentiary 

factual inferences decided adverse to the movant, the law nonetheless required a 

On the first basis, a court must review the record and conclude that, even with all 

Braddock Hosp., 950 A.2d 996, 999 (Pa. Super. 2008) (quoting Buckley v. Exodus 

Transit & Sioreqe Corp., 744 A.2d 298, 304-305 (Pa. Super. 1999)) (citations omitted). 

rendered for the movant. See, Griffin v University of Pittsburgh Medical Centersuch that no two reasonable persons could disagree the verdict should have been 

the movant is entitled to judgment as a matter of law and/or (2) where the evidence is 

A judgment notwithstanding the verdict may be entered on two bases: (1) where 

denied, 871 A.2d 192 (Pa. 2005) (citation and internal quotation marks omitted). 

to do so. See,.Komfeld v. At!. Fin: Fed., 856 A.2d 170, 173 (Pa. Super. -2004), appeal 

pass on the credibility of witnesses, as the trial court clearly is in the superior position 

affirmed, 715 A.2d 1082 (1998) (citations omitted).· It is not the Superior Court's role to 

685 A.2d 1019, 1022 (Pa. Super. 1996), appeal allowed in part, 696 A.2d 805 (1997), 

976 A.2d 581 (Pa. Su per. 2009); Stonehedge Square Ltd. v. Movie Merchants, Inc., 

they are not supported by competent evidence in the record. See, Levitt v. Patrick, 

the same weight and effect as a jury verdict and will not be disturbed on appeal unless 
! ,. 

· I 

'. I 

6 

!i 6. Upon such review, Mrs. Kachmar was apparently satisfied and executed the 

consulted with an attorney friend of hers who reviewed the agreement. See, Id. at pg. 

trial. See, Decision of March 18, 2015 at pgs. 5-6. Mrs. Kachmar testified that she 

Set Aside were contradicted by the testimony of both Mrs. Kachmar and Plaintiff at 

successful, in whole or in part, because the allegations of Mrs. Kachrnar's Petition to 

,, 

case", this Court determined that the Motion to Set Aside would not have been 

Sitting as the fact-finder during a bench trial on the issue of the "case within a 

to add but the following for the reviewing court's consideration. 

length in my Decision Pursuant to Pa.R.C.P. 1038 of March 18, 2015, and I have little 

and conclusions of law in support of my decision in favor of Defendants is set forth at 

Upon review and consideration of the Concise Statement, my findings of fact 

1. .JudgJJ1~nt wa§._prope.[!:it entereQ .... !.nJa\J:pr of Defend9.o:t§.,. 

B. Discussion 

Cmwlth. 2009). 

sense of justice. See, Tucker v. Bensalem Twp. Sch. Dist., 987 A.2d 198 (Pa. 

may be granted only when the verdict is so contrary to the evidence as to shock one's 

Spang & Co. v. United States Steel Corp., 545 A.2d 861, 866 (Pa. 1988). A new trial 

authority to override the trial· court's decision is proportionately diminished." See, 

deny a post-trial motion foltowing a bench trial "is enhanced, and the appellate court's 

of witnesses and resolve conflicts in evidence, the trial court's authority to grant or 

Because of the superior position of the trial judge as fact-finder to assess· the credibility 

courts· must not interfere with the trial court's authority to grant or deny a new trial. 

established law that, absent a clear abuse of discretion by the trial court, appellate 
7 

Ultimately, the Petition to Set Aside was never adjudicated because Plaintiff 

2. Muhammad applied to bar Plaintiff's legal malpractice action. 

respectfully request that my ruling be affirmed. 

resolution of any conflicting evidence which should not be disturbed. I, therefore, 

notvvithstanding the verdict or, in the alternative, a new trial. This Court's decision was 

supported by competent evidence based upon the credibility of the witnesses and the 

clearly failed to meet the criteria necessary to entitle him to a judgment 

required by the reviewing court is set forth in my Decision of March 18, 2015. 

Judgment was properly entered in favor of Defendants. Plaintiffs post-trial motion 

the remaining elements of his claim. See, Pa.R.C.P. 224. Any further analysis 

malpractice case, Plaintiff was not permitted to move forward in attempting to prove 

by a preponderance of the evidence. As this is the threshold issue in any legal 

Simply put, Plaintiff did not meet his burden of proving the case within the case 

Plaintiffs assertion is wholly lacking merit. 

(Pa. Super. 2000); see also, Gans v. Gray, 612 F.Supp. 608, 614 (E.D. Pa.1985); see 

also, ASTech Int'/, LLC v. Husick, 676 F. Supp. 2d 389, 401 (E.D. Pa. 2009). Thus, 

malpractice actions. See, Myers v. Robert Lewis Seigle, P. C., 751 A.2d 1182, 1185 

determined that they will not apply an increased risk of harm standard to legal 

mttigated through settlement. However, courts of this Commonwealth have 

evidence that the Motion to Set Aside did not expose him to a risk of harm which he 

' 

Plaintiff further argues that this Court erred by not allowing him to present 

duress. See, Decision of March 18, 2015 at pg. 9. 1 

agreement. There was no suggestion by Mrs. Kachmar of fraud, misrepresentation or 
I; 

1 ! 

8 

not typically apply where the motions are of a different type. See, Id. at 425:-26. 

American Republic Ins. Co., 705 A.2d 422 (Pa. 1997). However, this doctrine does 

from granting relief that directly contradicts previous court holdings. See, Riccio v. 

summary judgment on an issue. The law of the case doctrine simply prohibits a court 

Objections were not adjudicated on this issue. The Order of September 23, 2014 

denying Defendants' Motion for Summary Judgment was issued without any opinion or 

basis for the ruling. At trial, this Court is not bound by an earlier ruling denying 

Muhammed is not contrary to the law of the case doctrine. Defendants' Preliminary 

This Court's determination following trial that Plaintiffs claims were barred by 

former spouse. See, Id. at pg. 7. 

to put the matter behind him and move beyond the domestic relations battle with his 

March 18, 2015at pg. 10. Indeed, Plaintiff indicated that he chose to settle the matter 

Kachmar based upon a fraudulent inducement by Defendants. See, Decision of 

there was no allegation that Plaintiff entered into the settlement agreement with Mrs. 

fraudulently induced. See, ta. Here, as stated in my Decision of March 18, 2015, 

to settlement of his or her claim in the absence of proof that the settlement was 

cannot maintain a legal malpractice action against an attorney where theclient agreed 

U.S. 867 (1991 ), is instructive on this issue. The Muhammad Court held that a client 

McKenna, Messer, Shilobob & Gutnick, 587 A.2d 1346 (Pa. 1991 ), cert. denied, 502 

against his attorney. The Supreme Court case, Muhammad v. Strassburger, 

the question of whether a party is permitted, as a matter of law, to pursue such a claim 

2015 at pg. 10. Settlement of the underlying matter in a legal malpractice action raises 

and Mrs. Kachmar reached a settlement of the matter. See, Decision of March 18, 
9 

rction, the plaintiff must first successfully litigate the "case within the case." See, 

It is well-settled law in this Commonwealth that to prevail on a legal malpractice 

discretion. See, Sacco v. City of Scranton, 540A.2d 1370, 1372 (Pa. Cmw!th.1988). 

The court's decision to bifurcate a trial shall not be disturbed absent an abuse of 

Warner, 21 O&C 4th 473, 476 (C.P. Clinton Cty, 1993); see also, Coleman v. 

Philadelphia Newspapers, Inc., 570 A.2d 552, 555 (Pa. Super. 1990). The decision to 

bifurcate is discretionary. See, Wolk v. Wolk, 464 A2d 1359, 1362 (Pa. Super. 1983). 

trial issues in furtherance of convenience or to avoid prejudice. See, Geiswite v. 

of Civil Procedure. See, Pa. R. C.P. 213(a). The trial court may order bifurcation of 

Bifurcation of tria! issues is permitted by Pennsylvania case law and the Rules 

hereto for ease of reference. 

my Order of February 12, 2015, which I hereby incorporate by reference and attach 

The decision to bifurcate the underlying "case within a case" was addressed in 

3. Bifurcation of the "case within a case" was proper. 

Superior Court affirm my ruling. 

stemming from the settlement of the Petition to Set Aside and other equitable 

distribution issues in the underlying matter. Accordingly, I respectfully request that the 

Muhammad and its applicability to the facts; therefore, I defer to my Decision of March 

18, 2015. There was no error of law in barring Plaintiffs legal· malpractice claims 

' 

trial, the law of the case doctrine does not apply. 

I have _nothing additional with which to . supplement the legal analysis of 

. ; . . 

issued at a different stage of litigation than this Court's decision and opimon following 

. . ,. .. 

Because this Court's Order denying Defendants' Motion for Summary Judgment was 
10 

in the underlying proceedings, petitioned the family court for the equitable distribution 

investigation, this Court discovered that neither Mrs. Kachmar nor Plaintiff. at any point 

Mrs. Kachmar could not properly go before a jury. See, 23 Pa. C. S.A.· 3322. Upon 

Order, I noted that the underlying matter involving the Petition to Set Aside filed by 

incorporated by reference and have attached hereto for ease of reference. In the 

case" was addressed in my Order of February 12, 2015, which I previously 

The decision to hold a non-jury trial on the issue of the underlying "case within a 

4. }2§_t]Ch trial on the issu~ of the "case w[ttlLo a case" was gIQQ§.f.. 

the Superior Court affirm my ruling. 

basis for disturb this Court's decision. For these reasons, I respectfully request that 

the Concise Statement suggests that the bifurcation was an error of law, which is not a 

has not claimed that this Court abused its discretion in so ordering bifurcation; rather, 

witness to testify solely to the extent of the injury or damages). Additionally, Plaintiff 

produce all evidence upon the question of the defendant's liability before calling any 

prejudice. See, Pa.R.C.P. 213(a) and 224 (the court may compel the plaintiff to 

this action promoted the interests of judicial economy and avoided any unnecessary 

first demonstrate that he would have prevailed in the underlying matter, bifurcation of 

light of the clear delineation of these matters for trial and the prerequisite that Plaintiff 

conclusion the Petition to Set Aside that was underlying his legal malpractice claim. In 

cause of the plaintiffs loss. See, Id. Here, Plaintiff was required to litigate to a 

elements of his claim, i.e., proof that the attorney's negligence was the proximate 

would have lost in the underlying matter may the plaintiff proceed on the other 

Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998). Only after the plaintiff proves that he 
11 

1 Plaintiff's Concise Statement raises the argument that that this Court erred by 

disregarding Plaintiffs expert's testimony. This matter was not raised by Plaintiffs 

post-trial motion and, therefore, the issue is deemed waived for purposes of this 

appeal. 

J. 

BY THE COURT: 

Superior Court affirm my rullng. 

within a case" was to be heard in a non-jury trial, I respectfully request that the 

As there was no abuse of discretion in this Court's determination that the "case 

been adjudicated by a judge had the matter not been settled. 

maneuver this case so that a jury decides the "case within a case" which would have 

Aside was for determination by a trial judge, not a jury. Plaintiff is not permitted to 

on this matter in the prosecution of his legal malpractice action. 

on this matter. For these reasons, I determined that Plaintiff was not entitled to a jury 

proceedings did the family court issue a ruling regarding either party's entitled to a jury 

matters to be submitted for a jury trial. Moreover, at no point in the underlying 

In sum, whether Mrs. Kachmar would have prevailed on her Petition to Set 

'I 

1

1. I 

I