J-A24038-16

2016 PA Super 263

JAMES HELDRING, INDIVIDUALLY AND 

ON BEHALF OF PENCOYD IRON WORKS, 

INC.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

LUNDY BELDECOS & MILBY, P.C. AND 

ERIC C. MILBY, ESQ.

Appellees No. 397 EDA 2016

Appeal from the Order Entered January 13, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 150502532

BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY SOLANO, J.: FILED NOVEMBER 28, 2016

Plaintiffs-Appellants Pencoyd Iron Works, Inc. and James Heldring, 

Pencoyd’s owner and founder, appeal from the trial court’s January 13, 2016 

order dismissing their complaint for legal malpractice and unjust enrichment. 

We affirm the dismissal of all claims brought by Mr. Heldring individually and 

the dismissal of Pencoyd’s unjust enrichment claim, reverse the dismissal of 

Pencoyd’s claim for legal malpractice, and remand for further proceedings 

consistent with this opinion.

The Underlying Case

This case arises from litigation pertaining to a construction dispute. In 

September 2005, Pencoyd won a bid to supply steel to be used in the 

conversion of a building at 1101 Washington Avenue in Philadelphia into 
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condominiums. The building was owned by 1101 Washington Associates, 

L.P. (“Washington Associates”). Am. Compl., at ¶ 5.1 Washington 

Associates hired Axis Construction Services, LLC,2to serve as its general 

contractor, and Axis contracted with Pencoyd to perform structural steel 

fabrication and to install rails, stairs, and lintels. Id. at ¶ 6. 

When Axis failed to make timely payments for the steel, Pencoyd 

stopped work. Am. Compl., at ¶ 11. Pencoyd resumed work only after 

David Grasso, who is identified in the amended complaint as “President of 

Grasso Holdings Acquisitions, LLC doing business as Grasso Holdings, 

principal of GH Property Services, Inc. and a partner of [Washington 

Associates],” promised to pay Pencoyd and the other subcontractors and 

arranged for additional project financing. Id. at ¶ 12. GH Property 

Services, Inc. (“GH Property”) took over day-to-day management of the 

project, but, when the project was completed, Pencoyd claimed it still was 

owed a balance of $130,953.50 for its work. Am. Compl., at ¶¶ 14-17, 19.

To collect that outstanding balance, Pencoyd retained Eric Milby, 

Esquire, of the law firm now known as Lundy, Beldecos & Milby, P.C. Am. 

Compl., ¶¶ 3, 20-37. The retention is reflected in a letter agreement dated 

____________________________________________

1 As this action was dismissed by the trial court on preliminary objections, 

we base the facts on the amended complaint, including its exhibits. See 

Albert v. Erie Ins. Exch., 65 A.3d 923, 928 (Pa. Super. 2013).

2 Axis Construction Services, LLC is also known as Axis Construction 

Management.
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August 21, 2009. Id., Ex. “A,” at 1, 3. That letter was from Attorney Milby 

and addressed to “Pencoyd Iron Works, Inc., Attn: James Heldring, 

President,” and it stated that Attorney Milby would engage in “proceedings 

to collect monies owed to Pencoyd.” Id., Ex. “A,” at 1. The letter 

agreement was signed by Attorney Milby and by Mr. Heldring as Pencoyd’s 

president. Id., Ex. “A,” at 3.

Attorney Milby filed a collection action on behalf of Pencoyd in the 

Court of Common Pleas of Philadelphia County. Am. Compl., ¶ 30, Ex. “B.”3 

The named defendants included Axis and an entity identified in the caption 

of the complaint as “Grasso Holdings” and in the body of the complaint as 

“Grasso Holdings Acquisitions, LLC.” The complaint did not name as 

defendants David Grasso, GH Property, or any other entity owned or 

operated by David Grasso. 

During the course of the proceedings, summary judgment was entered 

in favor of Axis. Am. Compl., ¶ 45, Ex. “C.” Following a bench trial, the trial 

court found in favor of Pencoyd and against Grasso Holdings in the amount 

of $130,950.00. Id., Ex. “C” & “D” (Findings of Fact and Conclusions of 

Law, at 11 ¶ 72). Relevant to this appeal, in Findings of Fact and 

Conclusions of Law dated September 11, 2012, the trial court stated the 

following:

____________________________________________

3 The action was captioned, Pencoyd Iron Works v. Axis Construction 

Services, LLC, et al., March Term, 2010, No. 00814 (C.P. Phila.). 
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1. David Grasso ("Grasso") is the President of the general 

partnership entity, Grasso Holdings, L.P. ("Grasso Holdings"), 

the CEO of GH Property Services, Inc. ("GH Property Services"), 

and a partner in [Washington Associates]. . . . 

5. On the Grasso Holdings website, Grasso Holdings purports to 

own the [condominium] Project. . . . 

22. . . . David Grasso personally guaranteed the debt on the 

Project as the President of Grasso Holdings and the partner of 

[Washington Associates]. . . . 

25. After the subcontractors ceased work, Axis indicated that 

they were going to walk away from the Project.

26. In response David Grasso decided to hire GH Property 

Services, an affiliate business, to “handle some of the 

responsibilities" because people were already living in the 

building and buyers were waiting to move in. 

27. GH Property Services took over the day to day management 

of the Project. . . . 

57. On the Grasso Holdings website they state, "Grasso 

Holdings, through its affiliates, provides brokerage and property 

management services for many of the properties that it 

develops."

58. Moreover, the Grasso Holdings website states that David 

Grasso is the President, CEO, and primary principal of Grasso 

Holdings and that Grasso Holdings is the owner of the 

[condominium project].

59. David Grasso personally guaranteed the construction loan to 

recommence the project. . . . 

61. Thus, there was substantial intermingling of corporate affairs 

which makes it apparent that Grasso Holdings was in charge of 

the Project and [Washington Associates] was a layering company 

in order for Grasso Holdings to avoid liability. . . . 

65. Grasso Holdings did not pay Pencoyd for their completed 

work and thus Grasso Holdings was unjustly enriched. . . . 
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69. Grasso Holdings . . . assured Pencoyd that it would be paid 

up to current and in the future be paid 15 days after receipt of 

an invoice. 

70. Pencoyd returned to work after leaving the job for lack of 

payment and completed their work on the project.

71. Grasso Holdings assumed the contract with Pencoyd so that 

Grasso Holdings could finish and sell the unsold units, comply 

with current residents, and pay off the debts that David Grasso 

had personally guaranteed.

72. A finding is entered in favor of the plaintiff, Pencoyd 

Ironworks, Inc. and against defendant, Grasso Holdings, in the 

amount of $130,950.00.

Am. Compl., Ex. “D” (Findings of Fact and Conclusions of Law, at 2-5, 8-11) 

(citations omitted).4 Grasso Holdings Acquisitions, LLC, filed an appeal to 

this Court (No. 2874 EDA 2012), which we dismissed on November 20, 

2012, because no post-trial motion had been filed. 

On May 17, 2013, Attorney Milby, on behalf of Pencoyd, praeciped for 

entry of judgment against “Grasso Holdings.” According to Pencoyd, when 

Attorney Milby took David Grasso’s deposition, he realized that “Grasso 

Holdings” is a mere trade name and not a legal entity. Am. Compl., ¶ 36. 

Attorney Milby then tried to amend the judgment by filing a motion for 

“clarification” that asked that the judgment apply to the following Grasso 

affiliates: GH Property Services; GH Realty Services LLC, GH Realty, LLC, 

____________________________________________

4 The court initially entered its finding against “David Grasso Holdings.” It 

later amended the finding to be against “Grasso Holdings.” Am. Compl., Ex. 

“C.” 
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GH Property Management, LLC, GH Management, and Metro Development 

Real Estate Fund, L.P. Id. ¶ 53.5 The trial court denied the motion for 

clarification, stating:

On June 25, 2012, this court held a bench trial in which 

the parties presented evidence and this court made 

credibility determinations. Subsequent to the trial, both 

parties submitted proposed findings of fact and proposed 

conclusions of law. On September 11, 2012, this court 

entered judgment in favor of plaintiff, Pencoyd Iron Works, 

and issued findings of fact and conclusions of law to 

support the judgment. Moreover, on September 18, 2012, 

this court issued an amended order to correct the name of 

defendant to Grasso Holdings. Neither party filed motions 

for reconsideration nor did either party file post-trial 

motions. On October 12, 2012, defendant, Grasso 

Holdings, appealed to the Superior Court of Pennsylvania 

but the appeal was subsequently dismissed as defendant 

failed to file post-trial motions. Plaintiff, more than eight 

months after the entry of judgment, requests this court to 

clarify its judgment by changing its factual determinations 

regarding the entities sued by plaintiff and to sanction 

David Grasso. Essentially, plaintiff requests the court to 

reexamine the evidence and further reconsider the 

judgment entered. Obviously, the court cannot do so and 

this motion must be denied. See Pa.R.C.P. 227.1. See 

also 42 Pa.C.S.A. § 5505.

Am. Compl., Ex. “E” (Order denying motion for clarification, dated June 13, 

2013, at 1 n.1).

____________________________________________

5 According to Appellants’ Brief at 13, the motion also sought sanctions 

against David Grasso, but that information is not in the amended complaint. 

The motion for clarification itself is not in the certified record.
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The Current Litigation

On May 21, 2015, “James Heldring, individually and on behalf of 

Pencoyd Iron Works, Inc.,”6commenced this action by writ of summons 

against Attorney Milby and the Lundy law firm. In an amended complaint, 

Mr. Heldring and Pencoyd alleged that Attorney Milby and his firm “were 

negligent and careless in their pre-litigation investigation and due diligence 

because they did not name the correct Grasso entity or any of the various 

legal entities owned or controlled by David Grasso, as ‘Grasso Holdings’ is a 

simple trade name used by several entities.” Am. Compl., at ¶ 31. They 

averred, “The correct name of the Grasso entity whom the Defendants 

should have sued on plaintiff, Pencoyd's behalf was GH Property Services, 

Inc.” Id. at ¶ 33. Mr. Heldring and Pencoyd alleged that, by filing the 

complaint against “Grasso Holdings,” Attorney Milby impaired their ability to 

collect on the judgment secured in the underlying action:

On February 7, 2013, Milby prepared and filed a praecipe for 

Judgment against the trade name "Grasso Holdings". Judgment 

against a trade name is problematic from a post-crash judgment 

and enforcement standpoint, and a Pennsylvania lawyer, 

exercising ordinary skill and knowledge, would not expect there 

to be any assets titled to the name "Grasso Holdings".

____________________________________________

6 The reason Plaintiffs styled the caption in this way is not explained. The 

body of the amended complaint lists Mr. Heldring and Pencoyd as separate 

plaintiffs, see Am. Compl. ¶¶ 1-2, and throughout the litigation, the trial 

court and the parties treated the case as being brought by Mr. Heldring and 

Pencoyd as separate plaintiffs. We address the case with that same 

understanding.
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Id. at ¶ 39. They asserted that, as a result, “Pencoyd has been unable to 

collect even a single dollar from the worthless judgment obtained.” Id. at ¶ 

58. The complaint sought damages for legal malpractice (in counts alleging 

negligence and breach of contract) and unjust enrichment. Id. at ¶¶ 59-74.

In response to the amended complaint, Attorney Milby and his law firm 

filed preliminary objections in the nature of a demurrer. They asserted that, 

as “it has already been judicially establish[ed] that [] Defendants sued the 

correct party in the Underlying Matter, [] Defendants cannot be deemed to 

have breached a duty of care owed to Pencoyd.” Defs.’ Prelim. Objections 

To Pls.’ Am. Compl., at 8-9 ¶ 30. They sought dismissal of the unjust 

enrichment claim “because [the parties’] relationship arises from an actual 

contractual agreement,” id. at 10 ¶ 45, and asserted that Mr. Heldring could 

not recover because he was not a party to the contract for retention of their 

legal services, id. at 3-4 ¶¶ 7-9, 13.

In an order dated January 13, 2016, the trial court sustained the 

preliminary objections and dismissed the amended complaint. The court 

explained:

Plaintiffs have filed the instant action, which asserts legal 

malpractice and unjust enrichment claims, against defendants 

based upon defendant[s’] representation of Pencoyd Iron 

Workers, Inc. ("Pencoyd") in the matter of Pencoyd Iron 

Workers. Inc. v. Axis Construction Services, LLC et al., 

March Term, 2010, No. 0814. Following a bench trial, the court 

held Grasso Holdings to be liable to Pencoyd, and entered 

judgment in favor of Pencoyd in the amount of $130,950.00. 

Neither party filed motions for reconsideration nor did either 

party file post-trial motions. Eight months after the entry of 
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judgment, Pencoyd filed a "motion for clarification," which was 

denied. Pencoyd claims it has since been unable to recover the 

judgment because Grasso Holdings is [] merely a fictitious trade 

name that does not own assets.

In order to establish a legal malpractice claim in either contract 

or tort, the plaintiff must establish actual loss. See Rizzo v. 

Haines, 555 A.2d 58, 68 (Pa. 1989). "Actual losses in a legal 

malpractice action are measured by the judgment the plaintiff 

lost in the underlying action and the attorney who negligently 

handled the underlying action is the party held responsible for 

the lost judgment." Kituskie v. Corbman, 714 A.2d 1027, 

1030 (Pa. 1998). Here, defendants successfully obtained a 

judgment in favor of its client, Pencoyd, in the underlying action. 

The underlying action did not result in a loss to plaintiffs. The 

court has already concluded that Grasso Holdings is liable to 

Pencoyd, and as a result, Pencoyd is not entitled to re-litigate 

the matter in order to recover from a more solvent party. 

Furthermore, defendants represented the company Pencoyd; 

there was no contractual relationship between defendants and 

Heldring individually. Therefore, Heldring's claims against 

defendants for legal malpractice and unjust enrichment fail as a 

matter of law. Defendants' demurrers are sustained

1/13/16 Order, at 1-2 n.1 (citations to pleadings omitted). Mr. Heldring and 

Pencoyd then timely filed this appeal.

Issues and Standard of Review

Appellants raise the following issues:

1. Is a legal malpractice action against an attorney who 

recovered a judgment against an impecunious fictitious 

name barred

a. by the doctrine of collateral estoppel? or

b. by the proposition that so long as an attorney 

secures a judgment—no matter how worthless—then he 

has done his duty, and no malpractice action can lie 

against him? 
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2. Did the company president, as an individual, have with the 

attorney defendants a contractual relationship that would 

permit him to file a legal malpractice action against them?

Appellants’ Brief at 5 ¶¶ 1-2.

In considering an appeal from an order granting preliminary objections 

in the nature of a demurrer, which is a question of law, our standard of 

review is de novo and our scope of review is plenary. Mazur v. Trinity 

Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008).

The court may sustain preliminary objections only when, based 

on the facts pleaded, it is clear and free from doubt that the 

complainant will be unable to prove facts legally sufficient to 

establish a right to relief. For the purpose of evaluating the legal 

sufficiency of the challenged pleading, the court must accept as 

true all well-pleaded, material, and relevant facts alleged in the 

complaint and every inference that is fairly deducible from those 

facts.

Id. Accord Frank v. TeWinkle, 45 A.3d 434, 438 (Pa. Super. 2012).

Dismissal of Claims by Mr. Heldring

We begin with the second question presented, which addresses the 

trial court’s dismissal of the claims made individually by Mr. Heldring. 

As noted above, the trial court dismissed Mr. Heldring’s malpractice 

claim because “defendants represented the company Pencoyd; there was no 

contractual relationship between defendants and Heldring individually.” 

1/13/16 Order, at 2 n.1. We agree. The threshold element of any legal 

malpractice claim, whether brought in contract or tort, is the existence of an 

attorney-client relationship. McHugh v. Litvin, Blumberg, Matusow & 

Young, 574 A.2d 1040, 1042 (Pa. 1990). The letter of retention from 
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Attorney Milby and his firm, dated August 21, 2009, is addressed to 

Pencoyd, with “Attn:” to Mr. Heldring as Pencoyd’s president. Nowhere does 

the letter state that the firm would represent Mr. Heldring personally, and, in 

accordance with the instructions set forth in the letter, the letter was 

executed (and consequently transformed into an agreement) by Mr. Heldring 

only as president of Pencoyd, and not in an individual capacity. Additionally, 

when suit was filed by Attorney Milby, only Pencoyd was named as the 

plaintiff. We thereby agree with the trial court that Mr. Heldring failed to 

establish an attorney-client or other contractual relationship between himself 

and Attorney Milby that would enable him to recover for malpractice. 

Similarly, nowhere does Mr. Heldring set forth a relationship between 

himself and the Defendants or allege any personal payment by him to 

Defendants that would give rise to a claim for unjust enrichment. 

Accordingly, we affirm the dismissal of all claims asserted by Mr. Heldring.

Dismissal of Pencoyd’s Legal Malpractice Claim

The elements of a claim for legal malpractice are:

1. The employment of the attorney or other basis for 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.

Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989). The Supreme Court of 

Pennsylvania has described the unique nature of a legal malpractice claim:
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[A] legal malpractice action is distinctly different from any 

other type of lawsuit brought in the Commonwealth. A 

legal malpractice action is different because . . . a plaintiff 

must prove a case within a case since he 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 

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, 1030 (Pa. 1998) (footnote omitted). 

Therefore, an important question in a legal malpractice action is whether the 

plaintiff “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. W.C.A.B. (Warehouse Club, Inc.), 810 

A.2d 1182, 1184 (Pa. 2002) (emphasis added).

Here, Pencoyd alleges that the underlying lawsuit, if properly framed 

by Attorney Milby and his firm, would have been filed on Pencoyd’s behalf 

against GH Property, rather than against “Grasso Holdings.” Although the 

issue does not seem to arise frequently, we conclude that, upon proper 

proof, failure to sue the correct party may be a viable basis for a legal 

malpractice cause of action and that Pencoyd should have been permitted to 

proceed on that theory. 
J-A24038-16

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Initially, the Supreme Court’s decision in Poole provides some limited 

guidance. Poole received worker’s compensation benefits from his employer 

for a slip-and-fall injury that occurred during the course of his employment. 

He also attempted to sue the owner of the property where his fall occurred, 

but his lawyer sued the wrong party and that suit was dismissed. Because 

the statute of limitations had run, Poole was unable to file a new action 

against the correct party. 810 A.2d at 1182. Poole then “filed a civil 

complaint against his former legal counsel alleging that former counsel had 

been negligent in his representation” by suing the wrong party. Id. Poole 

and his former lawyer settled that case, and Poole’s employer then sought 

reimbursement of its worker’s compensation payments from those 

settlement proceeds. Id. at 1182-83. 

The direct question before the Supreme Court in Poole was whether 

proceeds from a legal malpractice action are subject to subrogation under 

the Workers’ Compensation Act, an issue that the Court ultimately answered 

affirmatively. See 810 A.2d at 1182-83, 1185. Although the Court was not 

asked to decide whether a viable legal malpractice action may be brought 

against an attorney who sued the wrong party in an underlying case — the 

issue before us here — the Supreme Court never questioned the viability of 

such a malpractice claim. See id. at 1182, 1184-85. In fact, the Court 

implicitly recognized the validity of such a claim by the penultimate sentence 

in its opinion: “while the underlying tortfeasor may have escaped liability 
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due to the statute of limitations and the actions of employee’s previous 

counsel, the legal malpractice action places this liability on the proper 

party.” Id. at 1185.

Courts in other jurisdictions have more directly held that a viable 

malpractice action may be brought against a lawyer who sued the incorrect 

party. See, e.g., Cosgrove v. Grimes, 774 S.W.2d 662, 663-65 (Tex. 

1989) (client was entitled to recover against attorney for malpractice in 

pursuing personal injury action, where the attorney filed suit against the 

wrong defendant); Bricker v. Kay, 446 So.2d 1151, 1152 (Fla. App. 1984) 

(allegation that attorney named wrong defendant in client's action, resulting 

in dismissal of complaint with prejudice after expiration of time within which 

suit could commence, was sufficient to state claim for malpractice, and the 

complaint should not have been dismissed); Young v. Jones, 256 S.E.2d 58 

(Ga. App. 1979) (attorney held liable to former clients for malpractice in 

negligently handling personal injury case against a railroad, because she 

sued the wrong railroad company and did not amend the complaint before 

the statute of limitations had run). We recognize that “we are not bound by 

these cases; however, we may use them for guidance to the degree we find 

them useful and not incompatible with Pennsylvania law.” Trach v. Fellin, 

817 A.2d 1102, 1115 (Pa. Super. 2003) (en banc) (citations omitted).

Pencoyd alleges that it retained Attorney Milby and his firm to collect 

the money it was owed for its steel fabrication work. See Am. Compl., ¶¶ 
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20-37. It alleges further that Attorney Milby and his firm were negligent in 

failing to sue David Grasso and companies owed or affiliated with him that 

were liable on that debt — particularly, GH Property — and that they were 

negligent when they instead sued only Grasso Holdings, which is merely a 

trade name against which they cannot recover on a judgment. Id. ¶¶ 30-

31, 33, 39, 58 & Ex. “B.” Finally, Pencoyd alleges that this negligence 

caused it damage because it has been unable to collect the amount owed to 

it, even though it now has a judgment against Grasso Holdings. Id. ¶ 58. 

These allegations are sufficient to state a claim for legal malpractice.

The trial court held that Pencoyd’s theory of recovery is not valid 

because a viable malpractice action requires proof that the lawyer’s 

negligence caused damage to the plaintiff, see Rizzo, 555 A.2d at 65, and, 

in the trial court’s view, Pencoyd did not suffer damage. The court 

explained: “The underlying action did not result in a loss to [Pencoyd]. The 

court has already concluded that Grasso Holdings is liable to Pencoyd, and, 

as a result, Pencoyd is not entitled to re-litigate the matter in order to 

recover from a more solvent party.” 1/13/16 Order, at 2 n.1. Pencoyd 

responds, however, that the judgment it obtained from Grasso Holdings 

“was worthless.” Appellants’ Brief at 29. Pencoyd vigorously asserts that 

the fact Attorney Milby sued an entity against which a recoverable judgment 

could not be obtained cannot be a valid defense against Attorney Milby’s 

failure to sue a different liable party that is able to pay a judgment. Pencoyd 
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argues that it was Attorney Milby’s responsibility to investigate and to 

identify a proper solvent party to sue so that any judgment obtained would 

then be collectible, and Pencoyd argues that it should be allowed to pursue 

this theory of recovery at trial. Id. at 23. Neither party has presented us 

with any authority addressing a fact pattern like this one, but, after careful 

consideration, we agree that Pencoyd’s claim based on this theory of 

recovery is not dismissible as a matter of law.

In a different context, the Supreme Court held in Kituskie, 714 A.2d 

1027, that collectability of damages is an appropriate issue for consideration 

in a malpractice trial. The lawyer in Kituskie failed to sue the party 

responsible for his client’s personal injuries before the statute of limitations 

had run. In the resulting malpractice action, a jury awarded the plaintiff 

$2.3 million. On appeal, the lawyer contended that the jury should have 

been asked to consider whether the damages should have been reduced, 

because it was unlikely that their full amount could have been collected from 

the defendant. Answering that question affirmatively, the Supreme Court 

held: 

[C]ollectibility of damages in an underlying case is a matter 

which must be considered in a legal malpractice action and . . . 

the defendant/lawyer bears the burden of proving that the 

underlying case which formed the basis of the damages award in 

a legal malpractice action would not have been fully collectible.

Id. at 1032. The Court added that a plaintiff bringing a legal malpractice 

action is “entitled to have a jury determine the issue of collectability if there 
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are disputed facts or inferences which can be drawn from the facts.” Id. at 

1033 n.9. 

Kituskie permits consideration of collectability as a defense to a 

malpractice action, rather than as a factor giving rise to liability. However, 

the broader point confirmed by Kituskie is that collectability of a judgment 

is an important consideration in pursuing litigation — one that lawyers are 

obligated to take into account.7 Pencoyd should have the opportunity to 

prove that Attorney Milby was negligent in failing to consider whether he 

was naming as defendants in the underlying action those parties who were 

liable and against which a judgment could be collected. Therefore, we hold 

that the trial court erred in holding that Pencoyd’s allegations failed to state 

a viable cause of action for legal malpractice as a matter of law. 

We also hold that Pencoyd’s legal malpractice action is not barred by 

collateral estoppel. Pencoyd interprets the trial court statement that it 

would refuse to allow Pencoyd to “re-litigate the matter,” 1/13/16 Order, at 

2 n.1, as a holding that collateral estoppel barred its claim. See Appellants’ 

Brief at 21. The trial court did not expressly say that its conclusion was 

based on collateral estoppel principles, however, and we conclude that 

collateral estoppel does not bar the present action.

____________________________________________

7 See, e.g., W.L. Douglas Shoe Co. v. Rollwage, 63 S.W.2d 841 (Ark. 

1933) (holding that delaying suit until a judgment becomes uncollectible 

gives rise to a malpractice action). 
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Under the doctrine of collateral estoppel, or “issue preclusion,” “the 

second action is upon a different cause of action and the judgment in the

prior suit precludes relitigation of issues actually litigated and necessary to 

the outcome of the first action.” In re Stevenson, 40 A.3d 1212, 1222 (Pa. 

2012) (quoting Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 

n.5 (1979)). 

Collateral estoppel applies if (1) the issue decided in the prior 

case is identical to one presented in the later case; (2) there was 

a final judgment on the merits; (3) the party against whom the 

plea is asserted was a party or in privity with a party in the prior 

case; (4) the party or person privy to the party against whom 

the doctrine is asserted had a full and fair opportunity to litigate 

the issue in the prior proceeding and (5) the determination in 

the prior proceeding was essential to the judgment.

Selective Way Ins. Co. v. Hospitality Grp. Servs., Inc., 119 A.3d 1035, 

1042 (Pa. Super. 2015). For collateral estoppel to apply, all of these 

elements must be met. Id.

A legal malpractice action does not litigate the same cause of action as 

the underlying case in which the malpractice allegedly occurred. 

Necessarily, the parties in the two suits are different: the underlying suit by 

Pencoyd was against Grasso Holdings; the malpractice suit is by Pencoyd 

against Attorney Milby and his law firm. There also is no identity of issues. 

The underlying action was brought by Pencoyd against “Grasso Holdings” 

and/or “Grasso Holdings Acquisitions, LLC” to collect on monies unpaid for 

construction work performed by Pencoyd. The current action is brought by 

Pencoyd against Attorney Milby and his law firm for alleged damages 
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resulting from their alleged negligence and breach of contract in connection 

with their commencement and litigation of the underlying claim. Pencoyd 

had no full or fair opportunity to litigate that malpractice issue in the 

underlying action, since it was in the course of that action that the 

malpractice allegedly occurred and since Pencoyd’s alleged damages —

resulting from uncollectability of the judgment — were not incurred until the 

underlying action ended. 

Referring to the findings made by the trial court in the underlying 

action, Attorney Milby contends that a controlling issue in the malpractice 

case — which party is liable to Pencoyd on the construction debt — was 

conclusively determined when the court held Grasso Holdings liable and 

entered a judgment against it. Appellees’ Brief at 7, 15. Attorney Milby 

asserts that this means that he could not have been negligent in suing 

Grasso Holdings. But Pencoyd’s theory of recovery here is that Attorney

Milby was negligent in suing only Grasso Holdings, and in not also suing 

David Grasso and his other companies — particularly, GH Property — parties 

that allegedly were both liable and able to pay the judgment. The trial court 

in the underlying action did not find that David Grasso and GH Property 

could not also be held liable to Pencoyd; there would have been no basis for 

such a finding, since David Grasso and GH Property were not named 

defendants in that case. The judgment in the underlying action therefore 

does not conclusively answer the question whether these other potential 
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defendants shared liability. Notably, however, the trial court cited evidence 

that Grasso Holdings acts “through its affiliates,” and it found that “there 

was substantial intermingling of corporate affairs” among the Grasso 

companies. Am. Compl., Ex. D, ¶¶ 57, 61. 

This matter thus involves different parties and issues from the 

underlying action. Without equivalence of issues and parties, collateral 

estoppel does not apply, Selective, 119 A.3d at 1042, and, accordingly, 

does not bar Pencoyd’s current legal malpractice case.

In light of the foregoing, we conclude that Pencoyd has stated a cause 

of action sounding in legal malpractice against Attorney Milby and his firm 

and that principles of collateral estoppel do not preclude assertion of that 

action. Our holding is narrow. Pencoyd’s theory of recovery is hotly 

contested and may be subject to various defenses. The parties have 

identified material disputes about several elements of Pencoyd’s malpractice 

claim, including whether the judgment against Grasso Holdings in the 

underlying action is truly uncollectible. These are genuine issues of material 

fact to be determined by a factfinder during the course of the legal 

malpractice action, see Kituskie, 714 A.2d at 1033 n.9, but they are not 

reasons to hold that no cause of action may be asserted as a matter of law. 

The trial court erred in determining otherwise. Therefore, we reverse the 

dismissal of Pencoyd’s legal malpractice claim.
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Dismissal of Pencoyd’s Unjust Enrichment Claim

Finally, we affirm the trial court’s dismissal of Pencoyd’s unjust 

enrichment claim against Attorney Milby and his firm. A “cause of action for 

unjust enrichment arises only when a transaction is not subject to a written 

or express contract.” Northeast Fence & Iron Works, Inc. v. Murphy 

Quigley Co., 933 A.2d 664, 669 (Pa. Super. 2007). Here, Pencoyd had a 

written and express contract with Attorney Milby and his firm — the mutually 

signed August 21, 2009 letter agreement solemnizing retention of the firm 

to engage in “proceedings to collect monies owed to Pencoyd.” Am. Compl., 

Ex. “A,” at 1. As such, there is no basis for Pencoyd’s claim of unjust 

enrichment, and the trial court’s dismissal of that claim will not be disturbed. 

1/13/16 Order, at 2 n.1. 

In sum, we reverse the dismissal of Pencoyd’s claim for legal 

malpractice and affirm the dismissal of the claims brought by Mr. Heldring 

individually and of Pencoyd’s claim for unjust enrichment. We remand for 

further proceedings consistent with this opinion.

Order affirmed in part, reversed in part, and remanded. Jurisdiction 

relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/28/2016