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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

SHEILA JANI, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. : No. 3322 EDA 2015

:

STEVEN F. O’MEARA, ESQUIRE :

Appeal from the Judgment Entered November 30, 2015,

in the Court of Common Pleas of Delaware County

Civil Division at No. 13-8800

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 18, 2016

Sheila Jani (“Jani”), plaintiff in the court below, appeals from the 

judgment entered November 30, 2015, in favor of defendant/appellee, 

Steven F. O’Meara, Esq. (“O’Meara”), in this legal malpractice action.1 We 

affirm.

 

* Former Justice specially assigned to the Superior Court.

1

Jani purports to appeal from the order of October 21, 2015, denying 

post-trial motions. Ordinarily, an appeal properly lies from the entry of 

judgment, not from the order denying post-trial motions. See generally, 

Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 516 

(Pa.Super. 1995). Nevertheless, a final judgment entered during pendency 

of an appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull 

Equip. and Supply Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied, 

803 A.2d 735 (Pa. 2002). See also Pa.R.A.P. 905(a) (stating notice of 

appeal filed after court’s determination but before entry of appealable order 

shall be treated as filed after such entry and on the day of entry).
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The Honorable Spiros E. Angelos, sitting as finder-of-fact in this 

non-jury trial, aptly summarized the history of this case as follows:

[Jani] filed a complaint with a single count for 

breach of contract against [O’Meara], her former 

attorney, on September 24, 2013. [Jani] testified 

that she hired [O’Meara] to represent her against 

two (2) tenants named on a lease for the property 

that she wanted evicted for lack of payment of rent. 

[Jani] testified that the lease for the property has 

two (2) signatures on it, but that neither she nor her 

real estate agent witnessed the execution of the 

lease and so she does not know who actually signed 

the lease. [O’Meara] sent [Jani] a letter dated 

April 5, 2012 confirming his representation and 

stating that he intended to contact the defendants 

and file a landlord tenant action in the District Court 

for Glen Mills. [Jani] sent [O’Meara] the lease 

documents [in response to] the April 5, 2012 letter. 

[Jani] paid [O’Meara] a flat fee, which included a one 

thousand dollar ($1,000.00) attorney fee and court 

costs of one hundred eighty-three dollars and 

fifty-six cents ($183.56). 

[O’Meara] filed an action against one of the 

tenants, Perry Panaccio, and informed [Jani] by 

letter dated May 7, 2012 that he was not sure the 

other tenant listed on the lease, Joann Camero, was 

culpable after reviewing the lease documents and 

performing his own investigation into the matter. 

[O’Meara] testified credibly that [Jani] agreed not 

[to] proceed against Ms. Camaro [sic] following a 

discussion between the parties on May 15, 

2015 [sic]. [Jani] sent [O’Meara] an email the next 

day, May 16, 2012, stating that after thinking about 

the situation, if [O’Meara] wanted to continue to 

represent her, he had to include Ms. Camero as a 

defendant. After receiving [Jani]’s email and 

speaking with [Jani]’s property manager that same 

day about Ms. Camero, [O’Meara] sent [Jani] a letter 

dated May 16, 2012 explaining that after a full 

investigation he did not see a viable claim against 

Ms. Camero and would not file an action against a 
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person he did not believe was culpable. [Jani] did 

not reply to [O’Meara]’s May 16, 2015 [sic] letter, 

but did subsequently contact [O’Meara] asking him 

to request a continuance of a hearing scheduled for 

May 22, 2015 [sic] for a family matter.

On June 1, 2012, [Jani] informed [O’Meara] by 

email that she no longer wished to have him 

represent her and demanded that he return the 

sums she had paid him. [O’Meara] sent [Jani] a 

billing statement showing that the time he spent on 

the matter exceeded the fee [Jani] paid for 

[O’Meara]’s services. [Jani] hired another attorney 

to represent her and paid him a flat fee of seven 

hundred fifty dollars ($750.00). [Jani] testified that 

she ultimately obtained a default judgment against 

Ms. Camero and Mr. Panaccio because neither 

showed up on the date of the hearing, but had not 

yet succeeded in collecting on any of the judgments. 

[Jani] testified that Ms. Camero filed for bankruptcy.

Following trial on February 12, 2015 and 

April 2, 2015, the parties were granted leave to file 

proposed findings of fact and conclusions of law. In 

her Proposed Findings of Fact and Conclusions of Law 

dated June 11, 2015, [Jani], for the first time, made 

a claim for breach of fiduciary duty. Following 

review of the trial transcripts and the parties’ 

proposed findings of fact and conclusions of law, the 

July 21, 2015 Decision was entered finding in favor 

of [O’Meara] and against [Jani] on her breach of 

contract claim. [Jani] filed a motion for post-trial 

relief and a motion to amend her complaint to add a 

breach of fiduciary duty claim on July 31, 2015, 

which were denied by an Order dated October 21, 

2015. [Jani] filed her notice of appeal on 

October 27, 2015. Judgment was not entered until 

November 30, 2015. 

Trial court opinion, 12/15/15 at 1-4 (citations to the transcripts omitted).

On November 2, 2015, Jani was ordered to file a concise statement of 

errors complained of on appeal within 21 days pursuant to 
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Pa.R.A.P. 1925(b), and she timely complied on November 20, 2015. 

(Docket #24, 26.) On December 15, 2015, the trial court filed a 

Rule 1925(a) opinion.

Jani has raised the following issues for this court’s review:

1. Did the trial court err by concluding that 

O’Meara had not breached his contract with 

Jani?

2. Did the trial court err by refusing to allow the 

pleadings to be conformed to the evidence that 

was presented at trial to include a claim for 

breach of fiduciary duty, a claim for which 

O’Meara had offered a defense anyway?

3. Did the trial court err by finding that O’Meara 

had not breached his fiduciary duty to Jani?

Jani’s brief at 5.

Our appellate role in cases arising from non-jury trial 

verdicts is to determine whether the findings of the 

trial court are supported by competent evidence and 

whether the trial court committed error in any 

application of the law. The findings of the trial judge 

in a non-jury case must be given the same weight 

and effect on appeal as the verdict of a jury, and the 

findings will not be disturbed on appeal unless 

predicated upon errors of law or unsupported by 

competent evidence in the record. Furthermore, our 

standard of review demands that we consider the 

evidence in a light most favorable to the verdict 

winner.

Baney v. Eoute, 784 A.2d 132, 135 (Pa.Super. 2001) (citation omitted).

Additionally, “the trial court, as factfinder, is free to 

believe all, part or none of the evidence presented 

. . . .” Turney Media Fuel, Inc. v. Toll Bros., Inc., 

725 A.2d 836, 841 (Pa.Super. 1999). “[T]herefore, 

assessments of credibility and conflicts in evidence 
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are for the trial court to resolve; this Court is not 

permitted to reexamine the weight and credibility 

determinations or substitute our judgment for that of 

the factfinder.” Id.

Sovereign Bank v. Valentino, 914 A.2d 415, 420 (Pa.Super. 2006).

First, we address Jani’s breach of contract claim. “Preliminarily, we 

also recognize that ‘[a]n action for legal malpractice may be brought in 

either contract or tort.’” Wachovia Bank v. Ferretti, 935 A.2d 565, 570 

(Pa.Super. 2007), quoting Garcia v. Community Legal Servs. Corp., 524 

A.2d 980, 982 (Pa.Super. 1987).

Generally speaking, for a plaintiff to successfully 

maintain a cause of action for breach of contract 

requires that the plaintiff establish: (1) the 

existence of a contract, including its essential terms, 

(2) a breach of a duty imposed by the contract and 

(3) resultant damages. Corestates Bank v. 

Cutillo, 723 A.2d 1053, 1058 (Pa.Super. 1999). In 

the narrow realm of legal malpractice claims based 

on an alleged breach of a contract between an 

attorney and a client, the appellate courts of this 

Commonwealth have jurisprudentially established, 

and refined through time, the specific facts which a 

plaintiff is required to demonstrate in order to 

establish that a breach of a contractual duty on the 

part of the attorney has occurred. 

Gorski v. Smith, 812 A.2d 683, 692 (Pa.Super. 2002), appeal denied, 856 

A.2d 834 (Pa. 2004).

[Bailey v. Tucker, 621 A.2d 108 (Pa. 1993),] 

established the proposition that every contract for 

legal services contains, as an implied term of the 

contract, a promise by the attorney to render legal 

services in accordance with the profession at large. 

Thus, when an attorney enters into a contract to 

provide legal services, there automatically arises a 
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contractual duty on the part of the attorney to 

render those legal services in a manner that 

comports with the profession at large. Hence, a 

breach of contract claim may properly be premised 

on an attorney’s failure to fulfill his or her contractual 

duty to provide the agreed upon legal services in a 

manner consistent with the profession at large.

Id. at 694. “[I]f a plaintiff demonstrates by a preponderance of the 

evidence that an attorney has breached his or her contractual duty to 

provide legal service in a manner consistent with the profession at large, 

then the plaintiff has successfully established a breach of contract claim 

against the attorney.” Id. at 697. See also Ferretti, 935 A.2d at 571 

(“With regard to a breach of contract claim, ‘an attorney who agrees for a 

fee to represent a client is by implication agreeing to provide that client with 

professional services consistent with those expected of the profession at 

large.’”), quoting Bailey, 621 A.2d at 115.

Jani testified that her realtor was responsible for renting out the 

property and she was not present to witness the signing of the lease 

agreement. (Notes of testimony, 2/12/15 at 38-39.) She did not know who 

actually signed the lease. (Id. at 39.) O’Meara testified that he spoke with 

Ms. Camero who advised him that she was a close friend of Panaccio’s and 

had filled out a rental application on his behalf. (Id. at 101-102.) However, 

she never moved into the house and adamantly denied signing any lease. 
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(Id. at 103.)2 Ms. Camero told O’Meara that she never went to the realtor’s 

office and never saw a copy of the lease until he showed it to her. (Id. at 

105.) O’Meara testified that Ms. Camero’s signatures on the rental 

application and the lease agreement were completely different. (Id.) In 

addition, O’Meara spoke with Panaccio’s attorney who informed him that he 

has represented Panaccio in approximately 20 cases involving property 

disputes, including foreclosures and landlord/tenant proceedings. (Id. at 

104.) O’Meara learned from Panaccio’s attorney “that this was the modus 

oper[a]ndi of Mr. [Panaccio] where he would get a woman involved, get her 

to sign off on these things and then, you know, he would ditch the 

property.” (Id.)

Furthermore, O’Meara testified that in his judgment, Jani knew that 

Ms. Camero had not signed the lease agreement. O’Meara testified that, 

“she wanted like a deep pocket she could go after because she knew 

Mr. [Panaccio] wasn’t going to pay.” (Id. at 115.) When O’Meara told Jani 

that Ms. Camero never signed the lease, she did not dispute it: “She 

basically, in my mind, made an admission that she knew that Ms. Camaro 

[sic] had not been the one that had signed that document, the lease 

document.” (Id. at 116.) “And all I’m saying is that Ms. Jani never 

contested whenever I confronted her with it, with the fact that the lease 

 

2

Plaintiff’s counsel did not timely object to this testimony as hearsay. (Id.

at 106.)
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signature was wrong, that Ms. Camaro [sic] didn’t live there, that 

Mr. [Panaccio] was the only person that resided there at the premises.” 

(Id.) O’Meara testified that he told Jani that someone had obviously faked 

Ms. Camero’s signature on the lease document: “But I did tell her that it 

was a fraud. I think she knew about the fraud. She told me repeatedly, 

well I just needed somebody to sign off so I could go after them.” (Notes of 

testimony, 4/2/15 at 37.)

It is well established that an attorney is prohibited from bringing a 

frivolous claim. See Pa.R.P.C. 3.1 (“A lawyer shall not bring or defend a 

proceeding, or assert or controvert an issue therein, unless there is a basis 

in law and fact for doing so that is not frivolous, which includes a good faith 

argument for an extension, modification or reversal of existing law.”). In 

addition, an attorney may withdraw from representation if his client insists 

on taking action which is fraudulent or with which the attorney has a 

fundamental disagreement. See Pa.R.P.C. 1.16(b) (“[A] lawyer may 

withdraw from representing a client if: (2) the client persists in a course of 

action involving the lawyer’s services that the lawyer reasonably believes is 

criminal or fraudulent; [or] (4) the client insists upon taking action that the 

lawyer considers repugnant or with which the lawyer has a fundamental 

disagreement[.]”). 

Here, after investigation, O’Meara reasonably believed that 

Ms. Camero did not sign the lease agreement, never moved into the 
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premises, and was not liable. Therefore, he had a professional obligation 

not to sue Ms. Camero, no matter what his client wanted.

Moreover, even assuming the April 5, 2012 letter3stating O’Meara’s 

intention to file suit against the “defendants” (plural) constituted a binding 

contract to sue both Panaccio and Ms. Camero, Jani subsequently agreed to 

proceed only against Panaccio. O’Meara testified that on May 15, 2012, he 

spoke with Jani regarding his concerns:

I spoke to her and her parents, and Mr. Cerillo[4] 

was there, present. And I advised her the situation 

was going on, that we had been back there for an 

hour. And I said it’s clear to me that Ms. Camaro 

[sic] didn’t – based on what she said, what she’s 

represented, the evidence that I’ve looked at, and I 

just didn’t have anything other to prove, to me, that 

Ms. Camaro [sic] had done anything or had signed 

this. Ms. Jani, again, agreed with me and agreed –

further agreed that we were just going to go after 

Mr. [Panaccio]. And at that point my – I believed my 

contract had been amended, our agreement had 

been amended so that we’re just going to go after 

Mr. [Panaccio] at this point. There was a meeting of 

the minds. I discussed it fully with her. I discussed 

it in front of her building manager. He agreed. She 

agreed.

Notes of testimony, 2/12/15 at 108-109.

I asked her permission not to include her and she 

said yes, you don’t have to include her. She agreed 

to it on May 15 while I sat there with her, her 

 

3 The April 5, 2012 letter stated, in relevant part, “It is my intention to file in 

the Glen Mills District Court for landlord tenant dispute. Additionally, I will 

be contacting defendants immediately by mail to advise of my 

representation.” (Plaintiff’s Exhibit 2.)

4

Joseph Cerillo was Jani’s property manager.
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parents, I believe it was her parents. I’m not getting 

any feedback so I’m assuming that was her parents. 

We talked about it and she agreed not to go forward 

with that.

Notes of testimony, 4/2/15 at 15. The trial court found O’Meara’s testimony 

to be credible and noted that even after O’Meara’s May 16, 2012 letter 

reiterating that in his opinion, Ms. Camero was not a proper defendant, 

Jani’s only response was to ask for a continuance so she could attend a 

family function. (Trial court opinion, 12/15/15 at 7.) Therefore, the record 

supports the trial court’s determination that the parties agreed to modify the 

terms of the contract.

Moreover, Jani failed to plead and prove any damages. See Ferretti, 

935 A.2d at 571 (“when it is alleged that an attorney has breached his 

professional obligations to his client, an essential element of the cause of 

action, whether the action be denominated in assumpsit or trespass, is proof 

of actual loss”) (citations omitted); see also Nelson v. Heslin, 806 A.2d 

873, 876 (Pa.Super. 2002), appeal denied, 831 A.2d 600 (Pa. 2003) (“An 

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 threat of future harm”) (citation omitted).
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As described above, Jani eventually obtained a default judgment 

against Ms. Camero.5 While she alleged that she had to pay another 

attorney $750 to represent her, she never provided any supporting 

documentation that such fees were billed or paid. (Trial court opinion, 

12/15/15 at 9.) O’Meara submitted a billing statement demonstrating that 

the time he spent on the matter, when billed at an hourly rate, actually 

exceeded the flat fee he initially charged Jani. (Id. at 8; notes of testimony, 

2/12/15 at 122.) See Pa.R.P.C. 1.16(d) (“Upon termination of 

representation, a lawyer shall take steps to the extent reasonably 

practicable to protect a client’s interests, such as . . . refunding any advance 

payment of fee or expense that has not been earned or incurred.”). 

Therefore, we agree with the trial court that Jani failed to establish an actual 

loss resulting from O’Meara’s alleged breach of contract that would entitle 

her to collect damages. 

Turning to the breach of a fiduciary duty claim, Jani first raised it in 

her proposed findings of fact and conclusions of law filed after trial on 

June 11, 2015. (Trial court opinion, 12/15/15 at 10.) She did not move to 

amend her complaint until after the July 21, 2015 decision was filed. 

“Amendments to pleadings are freely allowed under the Pennsylvania Rules 

 

5 Ms. Camero filed for bankruptcy and Jani testified that she has been unable 

to collect the judgment. (Notes of testimony, 2/12/15 at 84.) In fact, this 

was another reason O’Meara advised Jani not to include Ms. Camero as a 

defendant, that she had hired a bankruptcy lawyer and was judgment proof. 

(Id. at 120.) 
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of Civil Procedure and it is within the trial court’s discretion whether to grant 

or deny permission to amend. An amendment, however, may not introduce 

a new cause of action after the applicable statute of limitations has run.” 

Beckner v. Copeland Corp., 785 A.2d 1003, 1005 (Pa.Super. 2001), 

appeal denied, 805 A.2d 518 (Pa. 2002), citing Pa.R.C.P. 1033; Trude v. 

Martin, 660 A.2d 626, 635 (Pa.Super. 1995) (quotation marks omitted).

Here, Jani sought to amend her complaint to add a new cause of 

action, breach of a fiduciary duty, after the two-year statute of limitations 

period had expired. 42 Pa.C.S.A. § 5524. In her email dated June 1, 2012, 

terminating O’Meara’s representation, Jani complained that, “I thought I had 

hired you to represent my interest not Ms[.] Comero’s [sic] interest. But 

from your letter dated 5/16/12 it is clear that you are representing Ms[.] 

Comero’s [sic] interest.” (Plaintiff’s Exhibit 6.) Despite these allegations, 

Jani did not pursue a claim for breach of a fiduciary duty until after trial. 

The trial court did not abuse its discretion in denying Jani’s motion to amend 

the pleadings.

At any rate, Jani failed to prove any breach of a fiduciary duty.

Under Pennsylvania law, the duty of an agent to his 

principal is one of loyalty in all matters affecting the 

subject of his agency, and the agent must act with 

the utmost good faith in the furtherance and 

advancements of the interests of his principal. This 

duty is the same as that of fiduciary which has been 

described as the duty to act for the benefit of 

another as to matters within the scope of the 

relation.
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Garbish v. Malvern Fed. Sav. & Loan Assn., 517 A.2d 547, 553-554 

(Pa.Super. 1986), appeal denied, 533 A.2d 712 (Pa. 1987) (citations and 

quotation marks omitted). 

Jani argues that O’Meara had an undisclosed relationship with 

Ms. Camero and appeared to be more concerned with protecting Ms. Camero 

than representing Jani’s interests. (Jani’s brief at 18-19.) O’Meara testified 

that he had met Ms. Camero socially 20 years earlier and knew she worked 

in Domestic Relations at the courthouse but did not have a relationship with 

her. (Notes of testimony, 4/2/15 at 49-50.) The trial court found that Jani 

failed to establish that the mere fact O’Meara was acquainted with 

Ms. Camero created a conflict of interest or that O’Meara failed to act in 

Jani’s best interests. (Trial court opinion, 12/15/15 at 13.) It is clear from 

the testimony that O’Meara refused to file suit against Ms. Camero because 

he did not believe she was liable, not because of any prior relationship. 

Furthermore, any breach of fiduciary duty claim would likewise fail because 

Jani failed to prove actual damages. 

The trial court appropriately summed up this case, which never should 

have seen the light of day in a courtroom, as follows:

In this case, what was perceived to be a simple 

landlord tenant matter became unforeseeably 

complicated, which led to a disagreement between 

an attorney and his client. Since the parties were 

unable to resolve their disagreement, the client was 

forced to seek alternative representation. While 

unfortunate, these circumstances do occur, are 

contemplated by the law, and do not necessarily 
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mean any party breached contractual obligations or 

acted in bad faith or without legal justification. 

[Jani] failed to establish that [O’Meara] breached his 

contractual obligations or his fiduciary obligations. 

[Jani] also failed to establish that she suffered any 

actual loss because of [O’Meara]’s conduct.

Trial court opinion, 12/15/15 at 15. We agree and can discern no basis for 

disturbing the trial court’s verdict. 

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016