NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-1094

_____________

SPECTOR GADON & ROSEN, P.C.

v.

ROBERT M. FISHMAN

 (D.C. No. 2-13-cv-02691)

ROBERT M. FISHMAN

v. 

ALAN B. EPSTEIN; SPECTOR GADON & ROSEN, P.C.

 (D.C. No. 2-13-cv-05198)

 Robert M. Fishman,

 Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Nos. 2-13-cv-02691 & 2-13-cv-05198)

District Judge: Honorable Joel H. Slomsky

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

November 3, 2016

Before: CHAGARES, HARDIMAN, and SCIRICA, Circuit Judges.

(Filed: November 10, 2016)

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OPINION*

____________

CHAGARES, Circuit Judge.

Plaintiff Robert M. Fishman appeals from the District Court’s order granting 

judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) in favor of 

Alan B. Epstein and Spector, Gadon & Rosen P.C. (“Spector Gadon”). Fishman also 

appeals the District Court’s denial of his motion for reconsideration. For the following 

reasons, we will affirm the District Court’s orders.

I.

We write solely for the parties and therefore recite only the facts necessary to our 

disposition. Robert M. Fishman was employed as Chief Executive Officer by United 

American Indemnity, Ltd. (“UAI”) until his termination in May 2007. After his 

termination, Fishman brought a breach of contract claim against UAI, retaining attorney 

Alan B. Epstein and the law firm Spector Gadon to represent him in connection with his 

claim. Because Fishman’s employment agreement with UAI contained an arbitration 

clause, Fishman’s case proceeded to binding arbitration before the Honorable James R. 

Melinson. 

Before the arbitration and during discovery, Epstein entered into settlement 

negotiations with UAI on Fishman’s behalf. On July 17, 2009, the parties negotiated 

several potential terms of settlement. For instance, the parties proposed that Fishman 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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would testify in a separate litigation – the Keane litigation – in favor of UAI’s position in 

exchange for a $1,000,000 payout to Fishman. Although Fishman was not present at the 

July 17 meeting, Epstein called him to convey the proposed settlement terms. 

Epstein and UAI continued to engage in settlement discussions by telephone and 

email over the next few months. On October 12, 2009, the parties again met to discuss 

additional terms relating to the settlement. Fishman, however, refused to accept the 

additional terms, and no settlement was reached. On November 29, 2009, after UAI 

settled the Keane litigation (thus obviating the need for Fishman’s testimony), UAI 

informed Fishman that it was withdrawing its $1,000,000 settlement offer. 

In response to UAI’s withdrawal of its settlement offer, Epstein filed a motion to

enforce the settlement agreement. Judge Melinson denied the motion, ruling that there 

had been no enforceable agreement. Judge Melinson based this conclusion, in part, on 

his determination that any ultimate settlement would have required ratification from the 

UAI Board of Directors. He further reasoned that because UAI Board approval had not 

been obtained, there had been no “meeting of the minds” with respect to the settlement. 

Appendix (“App.”) 417a. 

Fishman subsequently retained successor counsel to proceed with the arbitration. 

With the assistance of successor counsel, Fishman and UAI ultimately reached a 

settlement agreement, whose terms were apparently less favorable than those Epstein had 

negotiated with UAI. 

Fishman brought suit for professional negligence against Epstein and Spector 

Gadon and breach of contract against Epstein alone. Epstein and Spector Gadon moved 
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for judgment on the pleadings, denying the allegations of malpractice and arguing that 

Fishman failed to state a plausible claim for relief. After considering the arbitrator’s

opinion, the District Court granted judgment on the pleadings in favor of Epstein and 

Spector Gadon. The District Court subsequently denied Fishman’s motion for 

reconsideration. 

Fishman brought this timely appeal. 

II. 

The District Court had jurisdiction under 28 U.S.C. § 1332, and we have appellate 

jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s dismissal under 

Rule 12(c) is plenary. Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008). “In 

reviewing the grant of a Rule 12(c) motion, we must view the facts presented in the 

pleadings and the inferences to be drawn therefrom in the light most favorable to the 

nonmoving party.” Id. (citing Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 

290–91 (3d Cir.1988)). 

III. 

On appeal, Fishman argues that the District Court erred by considering the 

arbitrator’s opinion in rendering judgment. Fishman also argues that the District Court 

erred by concluding that Fishman failed to state viable claims of professional negligence

and breach of contract. We have considered Fishman’s arguments, and for the following 

reasons, we will affirm the District Court’s determination.

Fishman first argues that the District Court erred by: 1) refusing to strike the 

arbitrator’s opinion, and 2) failing to convert the motion for judgment on the pleadings 
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into one for summary judgment. We do not agree. Fishman explicitly relied on the 

arbitrator’s opinion in his complaint. App. 36a ¶ 27. Indeed, Judge Melinson’s denial of 

the motion to enforce settlement was integral to Fishman’s malpractice claim. Fishman

thus invited consideration of the arbitrator’s opinion on a Rule 12(c) motion. See Mele v. 

Fed. Reserve Bank of New York, 359 F.3d 251, 256 n.5 (3d Cir. 2004), as amended

(Mar. 8, 2004) (noting that, in the context of ruling on a Rule 12(c) motion, a district 

court may rely on any “‘document integral to or explicitly relied upon in the complaint’ . 

. . ‘without converting the motion [to dismiss into one for summary judgment].’” (quoting 

In re Burlington Coat Factory Sec. Lit., 114 F.3d 1410, 1426 (3d Cir. 1997))). 

Accordingly, the District Court was entitled to consider the arbitrator’s opinion. 

We also agree with the District Court that Fishman failed to state a cognizable 

claim for professional negligence. Under Pennsylvania law, the elements of a legal 

malpractice claim are: “(1) the 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 

failure was the proximate cause of damage to the plaintiff.” Knopick v. Connelly, 639 

F.3d 600, 605 n.7 (3d Cir. 2011) (citing Bailey v. Tucker, 621 A.2d 108, 112 (Pa. 1993)). 

Fishman’s complaint alleged several bases for Epstein’s purported malpractice, 

including, inter alia, that Epstein failed to: (1) memorialize the negotiated settlement or 

put its terms on the record; (2) control the drafting of the settlement agreement; (3) seek 

UAI Board approval for the settlement or inform Fishman that such approval was 

required; and (4) produce Fishman for deposition in favor of UAI’s position in the Keane
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litigation. These allegations do not plausibly suggest that Epstein failed to exercise the 

ordinary skill and knowledge required of attorneys under similar circumstances. 

The District Court correctly concluded that Fishman has not pleaded that any 

alleged malpractice on Epstein’s part prevented Fishman from achieving a binding 

settlement with UAI. As discussed, UAI maintained a contract approval policy that 

required UAI Board approval before the adoption of any settlement exceeding $500,000. 

The existence of this policy meant that any actions or omissions on Epstein’s part, such 

as failing to memorialize the terms of the July 17, 2009 settlement discussions, did not 

prevent the realization of a binding settlement. Nor did Epstein act negligently or in a 

dilatory fashion in permitting UAI to draft the initial agreement. Rather, Epstein

participated in several discussions with UAI over the course of several months and “made 

repeated inquiries, by phone and email, as to the status of the written agreement.” App. 

412a. Finally, Epstein’s purported failure to produce Fishman for deposition in the 

Keane case does not amount to malpractice because, as the District Court observed,

Epstein could not have manipulated the progress of a litigation over which he lacked

control. In these circumstances, we conclude that Fishman failed to state a cognizable 

malpractice claim.

The District Court also correctly determined that Fishman’s alleged damages were 

too remote to support a malpractice claim. “An essential element to [a legal malpractice] 

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.” Kituskie v. 

Corbman, 714 A.2d 1027, 1030 (Pa. 1998); see also Rizzo v. Haines, 555 A.2d 58, 68 
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(Pa. 1989) (“[I]n order for one to prevail on a claim of legal malpractice, one must 

establish that the party against whom the initial claim was asserted . . . would have 

reached agreement upon a settlement in an ascertainable amount.”). Here, Fishman’s 

purported damages were based on a settlement that was never concluded. Fishman 

therefore did not plead that he would have reached a settlement with an ascertainable 

value. Fishman’s purported harm was thus entirely too speculative to support a viable 

claim. 

Finally, we perceive no error with the District Court’s determination that Fishman 

failed to state a viable breach of contract claim. The breach of contract claim was 

premised on the same conduct underlying the malpractice claim. Because the alleged

facts do not plausibly suggest professional negligence, they similarly do not make out a 

breach of a contractual duty. 

IV.

For the foregoing reasons, we will affirm the District Court’s orders granting 

judgment on the pleadings and denying the motion to reconsider.