J. A19012/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

EILEEN MCGUIRE, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. :

:

DONALD RUSSO, D/B/A LAW OFFICES 

OF DONALD P. RUSSO, ESQUIRE, 

DEIRDRE KAMBER TODD, D/B/A 

FITZPATRICK LENTZ & BUBBA P.C. 

D/B/A KAMBER LAW GROUP, P.C., AND 

FITZPATRICK LENTZ & BUBBA P.C.

:

:

:

:

:

:

No. 2603 EDA 2015

Appeal from the Order Dated July 15, 2015,

in the Court of Common Pleas of Lehigh County

Civil Division at No. 2014-C-3564

BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 22, 2016

Eileen McGuire, plaintiff in the court below, appeals from the order of 

July 15, 2015, sustaining defendants/appellees’ preliminary objections. We 

affirm.

The trial court has summarized the history of this matter as follows:

According to her Second Amended Complaint, 

Plaintiff is a skilled computerized tomography 

technologist who was employed by Palmerton 

Hospital in the fall of 2008 until July 2011. She 

alleges the hospital terminated her employment 

because she refused to engage in “multiple illegal 

and unethical healthcare practices” and because of 

her age. Second Amended Complaint, ¶ 6. She 

 

* Former Justice specially assigned to the Superior Court.
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retained Defendants, Deidre [sic] Kamber Todd, Esq. 

(“Attorney Todd”) and the law firm of Fitzpatrick, 

Lentz & Bubba (“Fitzpatrick Firm”) “[a]round January 

2012” in order to file an employment discrimination 

complaint against the hospital and her former 

supervisor, Louis Richards (“Richards”). Id. ¶ 12. 

“Thereafter,” she (not Defendants) filed charges with 

the Equal Employment Opportunity Commission 

(“EEOC”) and the Pennsylvania Human Rights 

Commission (“PHRC”) on the basis of age 

discrimination. Id. ¶ 13.

On or about March 7, 2012, approximately 

three months after filing her claim with the PHRC, 

Attorney Todd filed an action against the hospital 

and Richards in the Monroe County Court of Common 

Pleas on March 7, 2012, for breach of contract and 

wrongful termination. Id. ¶ 15-16. Although 

Plaintiff seems to complain the complaint did not 

contain a claim for age discrimination, she also 

acknowledged her administrative remedies had not 

been exhausted. Id. ¶ 16-17.

Attorney Todd left the Fitzpatrick Firm 

“[a]round spring 2012, midway through the 

litigation.” Id. ¶ 18. Plaintiff retained new counsel, 

Attorney Donald Russo (“Attorney Russo”), on or 

about July 3, 2012. The hospital and Richards 

removed the case to federal court on or about 

September 4, 2012. 

At federal court, “[t]he case was dismissed 

without prejudice and Plaintiff amended her 

complaint several times . . . [and] [o]n or about 

February 15, 2013, Plaintiff’s case was dismissed 

with prejudice. . . .” Id. ¶ 24-25. After the 

dismissal, Attorney Russo obtained a $7,000 

settlement for Plaintiff.

In this action against Attorneys Russo and 

Todd, and their law firms, including the Fitzpatrick 

Firm, Plaintiff alleges “[b]ut for Defendants’ . . . 

malpractice, Plaintiff would not have been in the 

weakened position that forced her to accept a 
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settlement amount significantly lower than what 

Plaintiff would have received from meritorious 

litigation.” Id. ¶ 29.

Order, 7/15/15 at 1-2 n.1.

Appellees’ preliminary objections in the nature of a demurrer were 

sustained by order filed July 15, 2015. This timely appeal followed. 

Appellant complied with Pa.R.A.P. 1925(b), and the trial court filed an 

opinion. 

The standard of review we apply when considering a trial court’s order 

sustaining preliminary objections is well settled:

[O]ur standard of review of an order of the trial court 

overruling or granting preliminary objections is to 

determine whether the trial court committed an error 

of law. When considering the appropriateness of a 

ruling on preliminary objections, the appellate court 

must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer 

test the legal sufficiency of the complaint. When 

considering preliminary objections, all material facts 

set forth in the challenged pleadings are admitted as 

true, as well as all inferences reasonably deducible 

therefrom. Preliminary objections which seek the 

dismissal of a cause of action should be sustained 

only in cases in which it is clear and free from doubt 

that the pleader will be unable to prove facts legally 

sufficient to establish the right to relief. If any doubt 

exists as to whether a demurrer should be sustained, 

it should be resolved in favor of overruling the 

preliminary objections.

HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114, 

118 (Pa.Super. 2014).
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The trial court dismissed appellant’s legal malpractice claims on the 

basis of Muhammad v. Strassburger, McKenna, Messer, Shilobod & 

Gutnick, 587 A.2d 1346 (Pa. 1991). In that seminal case, the Muhammads 

brought a medical malpractice claim following the death of their infant son 

during a surgical procedure. Id. at 1347. After the case settled for 

$26,500, the Muhammads filed a legal malpractice action against the 

attorneys who had represented them in the underlying medical malpractice 

case. Id. at 1347-1348. The Pennsylvania Supreme Court in Muhammad

held that absent specific allegations of fraud, a client who agrees to settle a 

case cannot subsequently bring a legal malpractice action against his 

attorney:

Simply stated, we will not permit a suit to be filed by 

a dissatisfied plaintiff against his attorney following a 

settlement to which that plaintiff agreed, unless that 

plaintiff can show he was fraudulently induced to 

settle the original action. An action should not lie 

against an attorney for malpractice based on 

negligence and/or contract principles when that 

client has agreed to a settlement. Rather, only cases 

of fraud should be actionable.

Id. at 1348. The Muhammad court’s decision was based on the strong and 

historical public policy of encouraging settlements: 

The primary reason we decide today to disallow 

negligence or breach of contract suits against 

lawyers after a settlement has been negotiated by 

the attorneys and accepted by the clients is that to 

allow them will create chaos in our civil litigation 

system. Lawyers would be reluctant to settle a case 

for fear some enterprising attorney representing a 

disgruntled client will find a way to sue them for 
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something that “could have been done, but was not.” 

We refuse to endorse a rule that will discourage 

settlements and increase substantially the number of 

legal malpractice cases. A long-standing principle of 

our courts has been to encourage settlements; we 

will not now act so as to discourage them.

Id. at 1349. The Muhammad court declared that, “henceforth we should 

view ‘litigation concerning litigation’ cases with a jaundiced eye.” Id. at 

1350. Absent a specific allegation of fraud, an agreement to settle 

forecloses the ability of a dissatisfied litigant to file suit against his attorney:

We do believe, however, there must be redress for 

the plaintiff who has been fraudulently induced

into agreeing to settle. It is not enough that the 

lawyer who negotiated the original settlement may 

have been negligent; rather, the party seeking to 

pursue a case against his lawyer after a settlement 

must plead, with specificity, fraud in the inducement. 

“One may not . . . induce another to contract by 

fraudulent misrepresentations.” College 

Watercolor Group, Inc. v. William H. Newbauer, 

Inc., 468 Pa. 103, 115, 360 A.2d 200, 206 (1976).

Id. at 1351 (emphasis in original).

In the event a litigant believes he has been 

fraudulently induced into settling, he has the right to 

file a suit, alleging with specificity the acts that he 

claims are fraudulent. If his allegations meet the 

standard of specificity required by Pa.R.C.P. 1019(b), 

then he will be allowed to proceed. In the event 

those allegations do not meet that standard of 

specificity, then the case will be dismissed upon the 

filing of preliminary objections.
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Id. at 1352 (emphasis in original).1

Appellant does not allege that she was fraudulently induced into 

signing the settlement agreement. Accepting appellant’s allegations as true, 

her attorneys failed to include a claim for age discrimination and also failed 

to exhaust appellant’s administrative remedies and obtain a “right to sue” 

letter from the EEOC. These allegations go to negligence and breach of 

contract, not actual fraud. Even if appellees’ negligence resulted in appellant 

accepting a “low-ball” offer, there is no allegation that appellees engaged in 

fraudulent conduct. Therefore, Muhammad applies to bar the action.

Appellant relies on a series of cases distinguishing Muhammad on the 

basis that the attorneys’ alleged negligence did not lie in their professional 

judgment in negotiating a settlement, but rather in their failure to advise 

their client of well-established principles of law and the consequences of 

entering into a legal agreement. In McMahon v. Shea, 688 A.2d 1179 (Pa. 

1997), for example, Robert McMahon and his wife Janet entered into a 

written settlement agreement providing for weekly child support and alimony

payments. Id. at 1180. These payments were to continue until the 

youngest living child reached age 21, was emancipated, or finished college, 

 

1 Under Rule 1019, “[t]he material facts on which a cause of action or 

defense is based shall be stated in a concise and summary form.” 

Pa.R.C.P. 1019. “Pennsylvania is a fact-pleading state; a complaint must 

not only give the defendant notice of what the plaintiff’s claim is and the 

grounds upon which it rests, but the complaint must also formulate the 

issues by summarizing those facts essential to support the claim.” Feingold 

v. Hendrzak, 15 A.3d 937, 942 (Pa.Super. 2011).
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whichever occurred last. Id. Upon advice of counsel, the parties entered 

into a stipulation wherein the written agreements would be incorporated but 

not merged into the final divorce decree. Id. Two months after the divorce 

decree was entered, Mrs. McMahon remarried. Id. Mr. McMahon filed a 

petition to terminate alimony, which was denied on the grounds that the 

parties’ agreement had survived the divorce decree.2 Id.

Mr. McMahon filed a legal malpractice action against his attorneys, 

alleging that they negligently failed to merge his alimony agreement with 

the final divorce decree, resulting in damages including alimony payments to 

his former wife after her remarriage. Id. at 1180-1181. Our supreme court 

distinguished Muhammad on the basis that Mr. McMahon was not simply 

dissatisfied with his settlement valuation; rather, he was alleging a failure to 

administer accurate advice about well-established principles of law in settling 

a case: 

 

2 The Divorce Code provides that the payment of 

alimony shall terminate upon the payee-spouse’s 

remarriage. See 23 Pa.C.S.A. § 3701(e). Where, 

however, the parties enter into an alimony 

agreement that is not merged with a subsequent 

divorce decree, then that agreement survives the 

divorce decree, thus obligating the parties to the 

agreement to honor the agreement after the divorce 

decree has been entered. See McMahon v. 

McMahon, 417 Pa.Super. 592, 612 A.2d 1360 

(1992) (en banc).

Banks v. Jerome Taylor & Assoc., 700 A.2d 1329, 1332 n.1 (Pa.Super. 

1997), appeal denied, 723 A.2d 668 (1998). 
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The laudable purpose of reducing litigation and 

encouraging finality would not be served by 

precluding the instant action. Mr. McMahon merely 

seeks redress for his attorneys’ alleged negligence in 

failing to advise him as to the controlling law 

applicable to a contract.

Id. at 1182. The court in McMahon concluded that the longstanding public 

policy favoring settlements had no application to the facts of that case, 

where Mr. McMahon was not attacking the value that his attorneys placed on 

his case:

Instead, Mr. McMahon is contending that his counsel 

failed to advise him as to the possible consequences 

of entering into a legal agreement. The fact that the 

legal document at issue had the effect of settling a 

case should not exempt his attorneys from liability.

Id. at 1182.3

In White v. Kreithen, 644 A.2d 1262 (Pa.Super. 1994), appeal 

denied, 652 A.2d 1324 (Pa. 1994), the plaintiff in a medical malpractice 

case discharged her attorneys, allegedly because of their negligence in 

handling her case and because they were not prepared for trial. Id. at 

1263. The plaintiff sought to retain other counsel but could not because her 

attorneys refused to transfer the file and demanded unreasonable 

“referral fees” from proposed new counsel. Id. The case was placed on the 

trial list, and the plaintiff still had not obtained new counsel. At a conference 

 

3 McMahon was decided by an evenly split six-member court. 

Justice Cappy, joined by Justices Castille and Newman, filed a concurring 

Opinion, rejecting the majority’s attempt to limit Muhammad to its facts 

and emphasizing the continuing validity of Muhammad. 
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before the Calendar Judge at which the plaintiff appeared pro se, the 

Calendar Judge recommended settlement in the amount of $150,000 and 

stipulated that if the plaintiff did not accept his recommendation, she would 

be forced to immediate trial unless the defendants refused to agree. Id. 

The plaintiff alleged that her medical expenses alone exceeded $150,000. 

Id. The medical malpractice defendants agreed to pay the figure 

recommended by the Calendar Judge, at which point the plaintiff had no 

choice but to accept the figure. Id. 

This court concluded that the subsequent legal malpractice suit was 

not barred as a result of the plaintiff’s settlement of the medical malpractice 

action, distinguishing Muhammad:

It is thus apparent that Muhammad does not 

control the present case since the settlement in the 

underlying action was not a settlement negotiated by 

counsel for appellant. Rather, after appellant 

discharged appellees, allegedly for failure to properly 

investigate and prepare her case for trial, appellant 

was forced, due to her inability to retain counsel, to 

accept the settlement figure proposed by the judge. 

Moreover and quite importantly, none of the 

motivating reasons for the Supreme Court decision in 

Muhammad, supra, would be achieved by finding 

the instant malpractice action barred, since appellees 

did not participate in the settlement, and appellant 

was prevented-allegedly as a result of appellees’ 

conduct-from questioning “before settlement” 

whether the terms of the settlement were 

advantageous.
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Id. at 1265. Therefore, critical to this court’s decision in White was the fact 

that the defendants in the legal malpractice action did not negotiate the 

settlement in the underlying medical malpractice action.

Similarly, in the recent case of Kilmer v. Sposito, A.3d , 2016 

WL 3612406 (Pa.Super. July 1, 2016), the plaintiff’s former attorney 

represented her in matters related to settling the estate of her late husband. 

Id. at *1. According to the complaint, he negligently advised the plaintiff to 

file an election to take against her husband’s will under 20 Pa.C.S.A. § 2203, 

which would entitle her to one-third of her husband’s estate. Id. In fact, 

under 20 Pa.C.S.A. §§ 2507 and 2102, she was entitled to one-half of the 

estate as a surviving spouse who had married the testator after he made his 

will. Id. The plaintiff followed her attorney’s advice and filed an election to 

take against the will, effectively reducing her share of the estate from onehalf to one-third. Id.

Subsequently, the plaintiff terminated her attorney’s services and 

retained new counsel to challenge the validity of her election. Id. 

Ultimately, she reached a settlement with the estate whereby she agreed to 

accept a 41.5% share of her late husband’s estate. Id. The plaintiff then 

filed a legal malpractice action against her former attorney, which was 

dismissed on the basis of Muhammad. On appeal, this court reversed, 

distinguishing Muhammad where the plaintiff was challenging her former 

attorney’s failure to advise her correctly on the law pertaining to her interest 
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in her late husband’s estate. Id. at *4. Following McMahon, in which all 

six justices drew a distinction between challenging an attorney’s professional 

judgment regarding settlement and challenging an attorney’s failure to 

advise a client of well-established principles of law and the impact of a 

written agreement, this court in Kilmer stated:

We apply the same rationale herein, for barring 

Appellant from seeking to hold Appellee accountable 

for allegedly flawed legal advice on an underlying 

matter essential to her inheritance as a surviving 

spouse would not advance the interests of finality in 

settlements. Appellant alleged in her complaint that 

Appellee’s negligence and breach of contract 

consisted of his failure to advise her properly on the 

consequences of exercising her right of election to 

take against the will. Appellant relied upon 

Appellee’s advice to her ostensible detriment when 

she authorized Appellee to file her election with the 

orphan’s court, a filing that would reduce Appellant’s 

legal interest in her husband’s estate by 17 2/3 if 

accepted by the court. She and new counsel 

challenged the validity of her election in a 

subsequent proceeding, but the prospects of 

prevailing in that matter were uncertain at best, 

driving them to the reasonable position of accepting 

a settlement that allowed her to make what was, 

indisputably, only a partial recovery of what she lost 

by virtue of the advice rendered by Appellee.

Id. at *4 (footnote omitted). As in White, the defendant attorney in 

Kilmer did not negotiate any settlement on his client’s behalf. Rather, he 

administered plainly erroneous legal advice. 

In the case sub judice, appellant agreed to settle her case for $7,000 

after her third amended complaint was dismissed in federal court. Appellant 

does not allege that she was fraudulently induced into accepting the 
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settlement, or that appellees misrepresented the terms of the agreement. 

Nor does appellant allege that appellees gave her wrong advice concerning 

well-established principles of law, or failed to explain the impact of a legal 

document. See Banks, 700 A.2d at 1332 (the Muhammad rule does not 

bar a client from suing his counsel for negligence where the settlement 

agreement is legally deficient or where counsel fails to explain the effect of a 

legal document) (citations omitted). Here, appellant alleges, inter alia, that 

appellees failed to include all pertinent facts in her first complaint when the 

lawsuit was initiated, failed to properly amend the complaint, failed to 

exhaust her administrative remedies, and failed to respond to her questions 

regarding settlement of her case. (Second amended complaint, 4/10/15 at 

¶ 31; RR Vol. I at 72.) Since appellant failed to specifically plead fraudulent 

inducement or that the settlement agreement itself was somehow legally 

deficient, the Muhammad rule applies, and appellant is barred from filing 

suit for legal malpractice. It appears that appellant is dissatisfied with her 

decision to settle and feels that more competent counsel would have been 

able to get her a “better deal”; this is precisely the sort of inefficacious 

litigation that the court in Muhammad was trying to foreclose. See 

Muhammad, 587 A.2d at 1350 (“Particularly troublesome to the efficacy of 

the courts are these ‘second bite’ cases; they require twice the resources as 

a single case, yet resolve only a single litigant’s claims--thus denying access 
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to the courts to litigants who have never had a single resolution of their 

dispute.”).4

In her reply brief, appellant complains that Muhammad has been 

heavily criticized and other jurisdictions, including New Jersey, have refused 

to follow it. (Appellant’s reply brief at 4.) It is well established that this 

court is bound by decisions of our supreme court unless they are overturned 

by that court. See Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 

(Pa.Super. 2000) (this court continues to follow controlling precedent as long 

as the decision has not been overturned by our supreme court), appeal 

denied, 788 A.2d 381 (Pa. 2001). Appellant wrongly characterizes 

McMahon as limiting Muhammad to the facts of that case. (Appellant’s 

brief at 19.) As stated above, McMahon was the product of an equally 

divided, six-member supreme court. In point of fact, the three-member 

“minority” concurred in the result, but specifically objected to limiting 

Muhammad to its facts. McMahon, 688 A.2d at 1182-1183. 

Consequently, McMahon did not serve to limit Muhammad to its facts, and 

Muhammad remains as controlling precedent until a true majority of the 

supreme court rules otherwise. The trial court did not err in sustaining 

 

4 At any rate, clearly appellant cannot maintain suit against the Todd and 

Fitzpatrick defendants where they were replaced in 2012. Appellant hired 

appellee Russo who filed several amended complaints on her behalf, 

including an age discrimination claim. As the trial court observed, neither 

Todd nor the Fitzpatrick firm represented appellant when she negotiated and 

accepted the settlement agreement. (Trial court opinion, 10/9/15 at 5.) 
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appellees’ preliminary objections and dismissing appellant’s complaint with 

prejudice where she failed to allege that the settlement agreement was 

legally deficient, that she was fraudulently induced to settle, and/or that the 

consequences of the legal agreement were not fully explained to her.

For these reasons, it is unnecessary to address appellant’s other claim 

raised on appeal, that she was entitled to attorneys’ fees.5 Furthermore, 

“The settled law of this Commonwealth is that attorneys’ fees are 

recoverable from an adverse party to a cause only when provided for by 

statute, or when clearly agreed to by the parties.” J.C. Snavely & Sons, 

Inc. v. Web M & E, Inc., 594 A.2d 333, 337 (Pa.Super. 1991), appeal 

denied, 602 A.2d 860 (Pa. 1991), quoting Fidelity-Philadelphia Trust Co. 

v. Philadelphia Trans. Co., 173 A.2d 109, 113 (Pa. 1961). Instantly, 

appellant has cited no statute or agreement between the parties that would 

entitle her to attorneys’ fees.

Order affirmed.

Ott, J. joins this Memorandum.

Fitzgerald, J. notes dissent.

 

5 Appellant has abandoned her claims for punitive damages and breach of a 

fiduciary duty.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016