J-S67043-16

*Former Justice specially assigned to the Superior Court.

2016 PA Super 266

412 NORTH FRONT STREET 

ASSOCIATES, LP; AND MARK J. 

BROWNSTEIN AND TODD A. NEWMAN 

AND BEEZER FAMILY REAL ESTATE, LLC

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SPECTOR GADON & ROSEN, P.C.; DAVID 

M. GILES, ESQUIRE; OLIVER D. GRIFFIN, 

ESQUIRE AND RICHARD D. GALLUCCI, 

JR., ESQUIRE 

Appellee No. 777 EDA 2016

Appeal from the Order Entered February 4, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): Control No. 15070357

March Term, 2014, No. 4495

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

OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 29, 2016

412 North Front Street Associates, LP, Mark J. Brownstein, Todd A. 

Newman, and Beezer Family Real Estate, LLC (“Appellants”) appeal from the 

order entered by the Court of Common Pleas of Philadelphia County granting 

in part a motion for summary judgment filed by Spector Gadon & Rosen, 

P.C., David M. Giles, Esquire, Oliver D. Griffin, Esquire, and Richard D. 

Gallucci, Jr., Esquire (“Appellees”) and dismissing claims asserting billing 

errors and overbilling in Appellant’s breach of contract and professional 

negligence action against Appellees. In the same order, the court also 
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denied Appellees’ motion in its capacity as counterclaimant seeking unpaid 

legal bills for legal services allegedly rendered to Appellant Beezer. 

Previously, on October 23, 2014, the court sustained Appellees’ 

preliminary objections and dismissed with prejudice Appellants’ negligence 

and contract based legal malpractice claims. With both orders putting 

Appellants out of court, they file this direct appeal claiming that their second 

amended complaint stated sufficient facts to survive preliminary objections 

and that genuine issues of material fact regarding Appellees’ alleged breach 

of professional duty required the denial of Appellees’ motion for summary 

judgment.1 Appellees, for their part as counterclaimant, argue that the 

court improperly denied their counterclaim for payment on an account 

stated. We affirm.

I. ORDER SUSTAINING PRELIMINARY OBJECTIONS

With respect to Appellants’ challenge to the order sustaining 

preliminary objections and dismissing their breach of contract and 

professional negligence claims, we glean the pertinent facts underlying the 

____________________________________________

1 Appellants have filed a reply brief in which they included a supplemental 

reproduced record without prior permission of this Court. The inclusion of 

such a reproduced record, thus, runs counter to Pa.R.A.P. 2156, which 

provides only for an appellee to file a supplemental reproduced record. More 

problematic, still, is that the supplemental reproduced record contains 

information absent from the certified record. Accordingly, we accept the 

filing of Appellants’ reply brief but strike the supplemental reproduced record 

contained therein.
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case sub judice from Appellants’ Second Amended Complaint,2filed 

September 5, 2014, which stated as follows:

9. Plaintiffs Brownstein, Newman and Beezer Family Real 

Estate, LLC formed 412 North Front Street Associates, LP, a 

limited partnership established to purchase, manage, and 

develop real estate.

10. As part of that intended purpose, on or about October 21, 

2005, 412 North Front Street Associates, LP (hereinafter “412 

North Front Street”) entered into a loan agreement with 

Abington Bank.

11. Pursuant to the loan documents, 412 North Front Street 

promised to pay Abington Bank (the “Bank”) the principal sum of 

Five Million Nine Hundred Thousand Dollars ($5,900,000.00). 

the initial term of the loan expired on March 21, 2007.

12. The loan agreement was subsequently amended three 

times with the principal sum changing to Seven Million One 

Hundred Twenty-Five Thousand Dollars ($7,125,000.00). The 

term of the Note was extended to March 31, 2009.

13. On or about October 21, 2005, Brownstein, Newman, 

Zitomer and Beezer Family Real Estate executed Surety 

Agreements in favor of the Bank.

____________________________________________

2 On April 8, 2014, Appellants filed the original complaint against Appellees 

asserting breach of contract and professional negligence claims. Appellees 

filed a separate action on April 22, 2014 seeking allegedly unpaid legal fees. 

On May 21, 2014, Appellants served certificates of merit regarding all 

Appellees named in the original complaint. Appellees filed preliminary 

objections to the original complaint, but, based on alleged new information 

pertaining to firm time records attached to Appellees’ action, Appellants filed 

an amended complaint asserting improper billing practices and named 

Gallucci as an additional defendant. Appellants again filed preliminary 

objections, which the court sustained in part but with leave to allow further 

amendment of the complaint. Appellants filed their Second Amended 

Complaint, at issue herein, on September 5, 2014.
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14. Under the Sureties, Brownstein, Newman, Zitomer, and 

Beezer Family Real Estate agreed to guaranty and become 

sureties to the Bank for all obligations of 412 North Front Street 

under the Loan.

15. During the course of the refinancing of the loan agreement 

with the Bank, in the early spring 2009, Plaintiffs retained the 

services of the Firm and Attorneys Giles, Griffin and Gallucci 

(hereinafter “Attorney Defendants” to help in the refinancing and 

to assist in the potential discussions involving restructuring or 

modification of the loan. It was agreed that the Firm and 

[Appellees] would be representing all Plaintiffs in all matters 

stemming from loan documents including any future litigation.

16. The Firm and the Attorney Defendants and the Plaintiffs 

entered into a legal services contract.

17. The legal services contract was in the form of a letter of 

representation. Defendant Giles drafted and forwarded a letter 

of representation to all Plaintiffs and specifically referenced that 

Defendants would be representing the interests of 412 North 

Front Street as well as the interests of Newman, Brownstein, 

Zitomer and Beezer Family Real Estate, LLC in the attempted

refinancing as well as any litigation stemming from, or as a 

result of, a failure to restructure or modify the loan.

18. The letter of representation made it abundantly clear that 

the strategies employed by the Firm would be consistent and the 

same for all Plaintiffs and that all actions taken or pursued on 

behalf of one of the Plaintiffs would be taken or pursued on 

behalf of all Plaintiffs. Defendants are in possession of the 

executed letter of agreement.

19. Plaintiffs retained the Firm and the Attorney Defendants 

because of their supposed knowledge of the banking industry 

and real estate market. The Firm and the Attorney Defendants 

hold themselves out to be experts in banking and banking 

litigation.

20. While Newman and Brownstein are attorneys, their 

respective areas of practice and expertise are separate and 

distinct from that of the Firm, Giles, and Griffin, which is why 

Plaintiffs sought out the Attorney Defendants[’] representation 

and assistance.
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21. The Firm and the Attorney Defendants, despite their initial 

representations, were not helpful in renegotiating or modifying 

payments to the Bank pursuant to the loan and therefore, the 

Bank confessed judgment against all Plaintiffs in the Court of 

Common Pleas in the amount of Eight Million Two Hundred Fifty 

thousand Four Hundred Fifty-Eight dollars and Seventy Five 

cents ($8,250, 458.75).

22. Plaintiffs forwarded the confessions of judgment to David 

Giles, Esquire, who informed Plaintiffs that the confessions 

themselves were flawed and that Petitions to Open said 

Judgments would be filed as to Newman, Brownstein, Beezer 

Family Real Estate and 412 North Front Street.

23. Attorney Giles represented to Plaintiffs that the warrants to 

all the confessions of judgment, including the confession of 

judgment against 412 North Front Street, were defective and 

that the Attorney Defendants would move to open or strike all 

the confessions of judgment.

24. The Attorney Defendants specifically communicated to 

Plaintiffs during multiple meetings and telephone conferences 

that all Plaintiffs, including 412 North Front Street as the Debtor, 

had valid, good faith defenses, including defective warrants, to 

the Confessions of Judgment.

25. A review of the billing entries of the Firm confirms that 

efforts were initially undertaken and billing entries were 

submitted reflecting that the confessions of judgment entered 

against all Plaintiffs were going to be attempted to be open. 

(See Exhibit “A”).

26. The description of legal services for June 29, 2009 

specifically states:

“Discussions with DMGiles; retrieval of dockets 

regarding confessions of judgment entered against 

Borrower and Guarantors; begin drafting of other 

petitions to open/strike for all defendants.”

27. There are no time entries indicating a conversation with 

any of the Plaintiffs wherein one or more of them were advised 
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that no efforts would be undertaken to open or strike the 

judgment against 412 North Front Street.

28. The Firm and the Attorney Defendants successfully moved 

to open the judgments against Brownstein, Newman, and Beezer 

Family Real Estate, but unbeknownst to Plaintiffs, never 

attempted to open the judgment against 412 North Front Street, 

even though the Attorney Defendants had specifically 

represented that the warrants for all of the confessions of 

judgment, including the 412 North Front Street judgment, were 

defective, and that the Attorney Defendants were going to 

attempt to open or strike all the judgments against all of the 

Plaintiffs pursuant to the letter of representation.

29. Plaintiffs made it clear to the Firm and the Attorney 

Defendants that all judgments needed to be opened, or at least 

good faith attempts needed to be made to open the judgments, 

against all Plaintiffs based upon the representations of the 

Attorney Defendants that there were valid defenses to the 

confessions of judgment entered against all Plaintiffs.

30. By failing to open the judgment against 412 North Front 

Street, or even attempting to open same, Plaintiffs, as 

guarantors, were left completely exposed and with no real 

recourse.

31. Additionally, by failing to open the judgment against 412 

North Front Street, or even attempting to open same, the Firm 

and Attorney Defendants had violated the terms of the letter of 

representation.

32. The Firm and the Attorney Defendants misrepresented 

their strategy with respect to the judgment entered against 412 

North Front Street in that the Attorney Defendants stated their 

intention to file Petitions to Open/Strike Judgments as to “all 

defendants” but failed to do so.

33. The Firm and the Attorney Defendants never informed 

Plaintiffs that they had no intention of moving to open the 

judgment and every intention of allowing the judgment against 

412 North Front Street to stand.

34. It was only after Plaintiffs’ retained new counsel in 2012 

that the Attorney Defendants communicated that they did not 
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attempt to open the judgment against 412 North Front Street 

because they did not believe there to be a valid ground for doing 

so. This new position of the Attorney Defendants was in 

complete contradiction to the Attorney Defendants’ previously 

communicated position to Plaintiffs that the warrants for all of 

the confessions of judgment were defective.

35. By failing to adhere to the terms of the letter of 

representation and the instructions of Plaintiffs in handling the 

judgments, the Firm and the Attorney Defendants acted in bad 

faith and in violation of the legal services contract between the 

parties.

36. Plaintiffs relied upon the Attorney Defendants’ 

representations that they would protect the interests of all 

Plaintiffs and accepted that the protracted litigation relating to 

the loan was being addressed in their best interests.

37. However, unbeknownst to Plaintiffs, the protracted and 

costly litigation was due directly to the actions and inactions of 

the Firm and the Attorney Defendants.

38. Plaintiffs were billed in excess of $300,000 for legal 

services, the majority of which could have been avoided had 

Defendants attempted to open the judgment against 412 North 

Front Street.

39. Because the Firm and the Attorney Defendants provided no 

assistance with respect to handling a potential refinancing or 

modification of the loan, and made no attempt to open the 

confession of judgment against 412 North Front Street, the real 

property collateralizing the loan, 107 Callowhill Street, 

Philadelphia, Pennsylvania, 412 North Front Street, Philadelphia, 

Pennsylvania, and 416 North Front Street, Philadelphia, 

Pennsylvania, was subject to a Sheriff’s Sale.

40. On or about September 24, 2009, the Bank assigned the 

Judgment, Mortgage and all loan documents to North Front 

Street Realty, LLC (hereinafter “North Front Street Realty”).

41. On or about October 6, 2009, North Front Street Realty, by 

Writ of Execution, caused the Sheriff’s Sale of the Mortgaged 

Property.
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42. The Bank was the successful bidder of the property at 

Sheriff’s Sale.

43. The Firm and the Attorney Defendants allowed the Sheriff’s 

Sale to proceed and erroneously permitted a portion of 

unencumbered property to be sold along with the mortgaged 

property.

44. Plaintiffs instructed Giles to object to and fight the Sheriff’s 

Sale. Giles advised Plaintiffs that they had no legal basis to 

object to the Sheriff’s Sale and that it was meaningless to 

[make] any efforts in reaching an amicable resolution of the 

matter. Because no objection was raised to the Sheriff’s Sale by 

the Firm, a date was set for a Fair Market Value Hearing. It 

never occurred to Plaintiffs, as they had placed their reliance 

upon the Attorney Defendants to adhere to the legal services 

contract, that no effort had been taken to open the judgment 

against 412 North Front Street. Attorney Giles never informed 

Plaintiffs that there was no legal basis to object to the Sheriff’s 

Sale because the Attorney Defendants had never attempted to 

open the judgment.

45. Had Defendants filed a Petition to Open the Judgment 

against 412 North Front Street, none of these events would have 

occurred.

46. Further, Giles allowed an unencumbered property known 

as 440 N. Front Street owned by 412 N. Front Street to be sold 

at the Sheriff’s Sale causing additional damages to Plaintiffs.

47. On or about April 1, 2010, the Bank, through North Front 

Street Realty, filed a Petition to Fix Fair Market Value and 

Establish a Deficiency Judgment against 412 North Front Street, 

Brownstein, Newman, and Beezer Family Real Estate as 

Respondents.

48. After extensive and costly written submissions, the Court 

conducted approximately two days of hearings on the Petition to 

Fix Fair Market Value.

49. The Court fixed the fair market value of the property at Six 

Million One Hundred Twenty-Five Thousand Dollars 

($6,125,000.00) and declared that the deficiency amount was
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One Million Three Hundred Four Thousand Eight Hundred Eleven 

dollars and Ninety Six cents ($1,304,811.96).

50. The Bank, through North Front Street Realty, filed a 

Complaint in the Court of Common Pleas of Philadelphia County 

against Brownstein, Newman, and Beezer Family Real Estate 

seeking the deficiency judgment.

51. The Firm filed a Motion for Reconsideration as well as an 

appeal of the fair market value order.

52. While the costly appeal was pending, Plaintiffs voiced their 

unhappiness with their representation by the Firm and the 

Attorney Defendants.

53. Plaintiffs determined that new counsel was necessary and 

in or around May 2012, Plaintiffs[ ] retained the services of 

Michael Wolf, Esquire.

54. In May 2012, upon retaining the services of Attorney Wolf, 

Plaintiffs learned for the first time of the Firm[’s] and Attorney 

Defendants’ mishandling of the judgment entered against 412 

North Front Street. Specifically, Attorney Wolf advised after 

reviewing the file and the pleadings in the matter that no effort 

had been undertaken to protect 412 North Front Street from the 

confession of judgment.

55. In May 2012, Plaintiffs discovered for the first time that 

the actions or inactions of the Firm and the Attorney Defendants 

in failing to contest the judgment by confession entered against 

412 North Front Street and the subsequent Sheriff’s Sale 

involving unencumbered property in complete disregard for 

Plaintiff’s specific requests and in direct contradiction of the legal 

services agreement rose to the level of professional negligence 

and breach of contract.

56. Ultimately, the deficiency action was settled for the sum of 

Eighty-Seven Thousand Five Hundred dollars ($87,500.00).

57. The settlement was effectuated by new counsel for 

Plaintiffs to whom Plaintiffs paid additional legal fees.

58. The Firm[’s] and the Attorney Defendants’ mishandling of 

the loan dispute resulting in thousands of dollars in unnecessary 
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legal fees being assessed to Plaintiffs, as well as their significant 

over-billing of the events surrounding the loan dispute, have 

caused significant damage to Plaintiffs in an amount in excess of 

$300,000.

59. Additionally, by allowing an unencumbered property known 

as 440 N. Front Street owned by 412 N. Front Street to be sold 

at the Sheriff’s Sale, Plaintiffs have suffered damages totaling in 

excess of $200,000.

Second Amended Complaint, filed 9/5/14, at 1-11 (emphasis in original).

Appellants alleged further in their Second Amended Complaint 

(hereinafter “complaint”) that, pursuant to the terms of the parties’ contract, 

Appellees were required to perform their services competently, in good faith, 

in a manner consistent with the standards of the legal profession, and in 

accordance with the reasonable instructions and requests of Appellees. 

Nevertheless, Appellees breached the terms of the contract through 

instances of over-billing and billing for services that do not fall under the 

terms of the legal services contract, Appellants alleged. 

In particular, the complaint continued, Appellees failed to perform 

services discussed by the parties, namely, to modify or restructure the loan 

documents and, eventually, to open or attempt to open the confession of 

judgment against the debtor, 412 North Front Street. But for Appellees’ 

actions and omissions in this regard, Appellants would not have been 

exposed to the legal liabilities that befell them, it is alleged. Additionally, 

the complaint claimed that Appellees’ excessive billing was tied directly to 

activities necessitated by the Sheriff’s Sale and the fair market value 
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litigation that should never have occurred. The sale of an unencumbered 

property along with the encumbered property at Sheriff’s Sale was an 

additional unjustifiable loss caused by Appellees’ breach of duty, the 

complaint contended. 

Appellees filed preliminary objections to the complaint in which they 

argued, inter alia, that Appellants failed to allege all necessary elements to 

their negligence and contract-based claims of legal malpractice. Specifically, 

Appellees maintained, Appellants failed to allege either a good-faith basis 

upon which Appellees could have filed a petition to open judgment against 

the debtor or any facts from which a reasonable inference could be drawn 

that such a petition would have succeeded. An assertion of negligence was, 

therefore, not supported by well-pleaded facts, they argued. Moreover, 

Appellants failed to identify what injury Appellees caused when no facts were 

alleged from which it could plausibly be inferred that the filing of a petition 

to open or strike could have asserted a meritorious defense and led to a 

more favorable result for debtor 412 North Front Street and the other 

Appellants.

Breach of contract was not sufficiently alleged, either, according to 

Appellees’ preliminary objections, where the complaint pleaded only that 

Appellees informed Appellants they would make a good faith attempt to 

open the judgments against all Appellants. The complaint, however, failed 

to identify a good faith basis or defense available to support the filing of a 
J-S67043-16

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petition, Appellees objected, negating the allegation of breach. Additionally, 

to Appellants’ allegation that Appellees agreed to abide by Appellants’ 

reasonable directions and requests, Appellees objected that Appellants’ 

failure to identify a valid defense to the confession of judgment against 412 

North Front Street precluded them from alleging that any direction to file a 

petition to open or strike would have been reasonable.

As noted above, on October 23, 2014, the lower court3entered an 

order sustaining Appellees’ preliminary objections and dismissing with 

prejudice Appellants’ breach of contract and professional negligence claims. 

As for Appellants’ claims relating to improper or inaccurate billing of 

attorneys’ fees, the court sustained preliminary objections but with leave to 

amend. On November 12, 2014, the court denied Appellants’ motion for 

reconsideration.

Appellant raises the following issues pertinent to the court’s order 

sustaining preliminary objections:

1. Whether the Trial Court erred in sustaining in part 

Defendants’/Appellee’s [sic] Preliminary Objections to 

Plaintiffs’ Second Amended Complaint and dismissing with 

prejudice Plaintiffs’/Appellants’ claims for legal malpractice 

and malpractice-based breach of contract.

2. Whether the Trial Court erred in denying Plaintiffs’/Appellants’ 

Motion for Reconsideration.

Appellants’ brief at 8.

____________________________________________

3 The Honorable Pamela Pryor Dembe presiding.
J-S67043-16

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In their first issue, Appellants contend the court erroneously sustained 

Appellees' demurrers when the complaint comprised sufficient factual 

allegations, which must be read as a whole and accepted as true, to support 

liability under the respective theories of breach of contract and legal 

malpractice. Breach of contract was set forth through allegations that 

Appellees prepared and delivered to Appellants a letter of representation 

indicating that the interests of all Appellants, including debtor 412 North 

Front Street, would be advanced in the attempted refinancing as well as in 

any litigation stemming from a failure to reform or modify the loan. 

According to the complaint, moreover, Appellees declared to 

Appellants that the confessions of judgment against all were defective and 

that Appellee attorneys would move to open or strike each one, Appellants

argue. Appellants point to the complaint's averment that Appellees, on 

multiple occasions, represented that every Appellant had valid, good faith 

defenses, including but not limited to defective warrants, against the 

confessions of judgment. Despite these representations, Appellees never 

attempted to open or strike judgment against 412 North Front Street as they 

did for its guarantors, in violation of the contract, the complaint stated.

As to the claim of legal malpractice, Appellants direct us to where the 

complaint alleged that Appellees submitted billing entries reflecting 

measures taken to open the confessions of judgment entered against all 

Appellees. The description of legal services rendered for June 29, 2009, the 
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complaint alleged, identified the retrieval of dockets regarding confessions of 

judgments entered against "Borrower and Guarantors" and the preparation 

of petitions to open/strike for all defendants. The complaint also sufficiently 

alleged malpractice by asserting that Appellees allowed an unencumbered 

property owned by 412 North Front Street Associates to be sold at sheriff's 

sale, causing a $200,000 loss, Appellants maintain. 

Appellees respond that, while the complaint alleged they represented 

to Appellants that "all judgments needed to be opened, or at least good faith 

attempts needed to be made to open the judgments, against all plaintiffs," 

Appellants failed, to the detriment of their contract-based claim, to allege 

that any defense or "good faith" basis actually existed to support an attempt 

to open. The complaint likewise failed to state a claim for legal 

malpractice/professional negligence, Appellees argue, where it failed to 

allege that a valid defense to the judgment confessed against the debtor, 

412 North Front Street, actually existed. 

Without pleading facts allowing for the reasonable inference that a 

valid defense existed, Appellees maintain, Appellants were unable as a 

matter of law to prove the necessary element of Appellees' negligence, i.e., 

the breach of their professional duty to exercise ordinary skill and knowledge 

by presenting such a valid defense. Simply calling Appellees "negligent," 

without offering facts, which, accepted as true, would establish or allow the 
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inference of negligence, was nothing more than a conclusory assertion 

incapable of surmounting a preliminary objection, Appellees insist. 

So, too, does it follow that the complaint failed to allege facts from 

which one could reasonably infer an injury caused by Appellees, they 

maintain, as it contained no allegation as to how losses tied to 412 North 

Front Street's confessed judgment would have been avoided simply by filing 

a petition to open or strike on its behalf. Indeed, Appellees contend, the 

complaint essentially conceded that the debtor owed a substantial debt it 

could no longer pay and one that Abington Bank opted against restructuring 

despite Appellees’ good-faith negotiating efforts.

We review appeals from orders sustaining preliminary objections in the 

nature of a demurrer under the following standard:

A preliminary objection in the nature of a demurrer is properly 

granted where the contested pleading is legally insufficient. 

Preliminary objections in the nature of a demurrer require the 

court to resolve the issues solely on the basis of the pleadings; 

no testimony or other evidence outside of the complaint may be 

considered to dispose of the legal issues presented by the 

demurrer. All material facts set forth in the pleading and all 

inferences reasonably deducible therefrom must be admitted as

true.

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine the 

averments in the complaint, together with the documents and 

exhibits attached thereto, in order to evaluate the sufficiency of 

the facts averred. The impetus of our inquiry is to determine the 

legal sufficiency of the complaint and whether the pleading 

would permit recovery if ultimately proven. This Court will 

reverse the trial court's decision regarding preliminary objections 

only where there has been an error of law or abuse of discretion. 

When sustaining the trial court's ruling will result in the denial of 
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claim or a dismissal of suit, preliminary objections will be 

sustained only where the case is free and clear of doubt.

Thus, the question presented by the demurrer is whether, on the 

facts averred, the law says with certainty that no recovery is 

possible. Where a doubt exists as to whether a demurrer should 

be sustained, this doubt should be resolved in favor of overruling

it.

Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208-209 (Pa. 

Super. 2012) (internal citations and quotation marks omitted). 

Where the complaint fails to set forth a valid cause of action, a 

preliminary objection in the nature of a demurrer is properly sustained. 

Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa.Super. 2008). The 

complaint need not identify specific legal theories, but it must provide 

essential facts to support the claim. See Krajsa v. Keypunch, Inc., 622 

A.2d 355, 357 (Pa.Super. 1993). “Assertions of legal rights and obligations 

in a complaint may be construed as conclusions of law, which have no place 

in a pleading.” DelConte v. Stefonick, 408 a.2d 1151, 1153 (Pa.Super. 

1979) (citation omitted).

“It is well-established that three elements are necessary to plead a 

cause of action for breach of contract: (1) the existence of a contract, 

including its essential terms, (2) a breach of the contract; and, (3) resultant 

damages.” Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law 

Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016) (citing 

J.F. Walker Co., Inc. v. Excalibur Oil Grp., Inc., 792 A.2d 1269, 1272 

(Pa.Super. 2002)). “Resultant damages” are those damages suffered from 
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the breach. McShea v. City of Philadelphia, 995 A.2d 334, 340 (Pa. 

2010). See also Logan v. Mirror Printing Co. of Altoona, Pa., 600 A.2d 

225, 226 (Pa.Super. 1991) (recognizing “[i]n order to recover damages 

pursuant to a breach of contract, the plaintiff must show a causal connection 

between the breach and the loss.”). A claim of legal malpractice requires 

that the plaintiff plead the following three elements: employment of the 

attorney or other basis for a duty; the failure of the attorney to exercise 

ordinary skill and knowledge; and that the attorney's negligence was the 

proximate cause of damage to the plaintiff. Kituskie v. Corbman, 714 

A.2d 1027, 1029 (Pa. 1998); accord Steiner v. Markel, 968 A.2d 1253, 

1255 (Pa. 2009). 

After reviewing the record, the parties’ respective arguments, and 

governing authority, we conclude Appellants failed to allege in their 

complaint sufficient facts allowing the plausible inference that a viable basis 

for recovery existed for either its breach of contract or legal malpractice 

claim. Most problematic for Appellants was that no allegation provided a 

causal connection between either the alleged breach of contract or 

professional duty, respectively, and Appellants’ proclaimed losses. 

Specifically, the complaint alleged that Abington Bank confessed judgment 

against all Appellants after it declined Appellants’ request, presented through 

the advocacy of Appellee Firm and attorneys, to restructure or modify the 

terms of the loan agreement between the lender bank and debtor 412 North 
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Front Street. Appellants failed to allege how, but for Appellees’ conduct, 

they would have avoided what, by every indication in the pleading, was 

Abington Bank’s inevitable collection of a defaulted loan through sheriff’s 

sale of property owned by 412 North Front Street. Allegations of fact 

essential to establishing that Appellees’ conduct caused Appellants’ losses 

were, therefore, absent from the complaint.

Relatedly, the complaint refers to Appellees’ failure to act upon its 

pledge to make good-faith attempts to open judgments against all 

defendants as constituting a breach of contract, but Appellants failed to 

assert therein what practicable, good-faith attempts could have plausibly 

resulted in a superior outcome to the one obtained. Without identifying 

these essential facts, the complaint offers, at best, a baseless, conclusory 

statement that Appellees failed to make at least a "good-faith attempt" to 

file a petition.

In Appellants’ complaint, therefore, we discern insufficient assertion of 

essential facts necessary to support legally viable claims of breach of 

contract and legal malpractice. Accordingly, we find no abuse of discretion 

in the dismissal of both claims by way of the court order sustaining 

preliminary objections.4

____________________________________________

4 The same reasons for rejecting Appellants’ first claim apply to defeat their 

second claim, which pertains to the court’s denial of their motion for 

(Footnote Continued Next Page)
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II. ORDER GRANTING DEFENSE MOTION FOR SUMMARY 

JUDGMENT

The second aspect of the present appeal involves the lower court’s5

order granting Appellees’ motion for summary judgment on Appellants’ 

remaining claims asserting billing errors and practices but denying their 

motion seeking judgment on its counterclaims asserting breach of contract 

and unpaid legal fees. In setting forth the pertinent factual and procedural 

history of this phase of the case, the lower court aptly provides the following 

in its opinion dated February 1, 2016:

Defendants/Counterclaim Plaintiffs [Appellees] filed the instant 

motion for summary judgment seeking judgment on plaintiffs’ 

[Appellants’] sole remaining claim for breach of contract and 

legal services. [A summary of the underlying bank loan, 

retention of Appellees to negotiate and restructure the loan, 

failure to come to agreement with bank, confessions of 

judgment, decision not to include 412 North Front Street 

Associates among petitions to open, and sheriff’s sale is 

provided].

***

Pursuant to the retainer agreement between plaintiffs and 

defendants, plaintiffs were charged an hourly fee for the legal 

services SGR performed plus the cost of all out of pocket 

expenses. SGR submitted monthly invoices to plaintiffs for 

payment. The invoices included the hourly rate, the amount 

due, a description of the work performed by SGR, the identities 

(Footnote Continued) _______________________

reconsideration, as the arguments offered in support thereof essentially 

reiterate the arguments appearing in the unsuccessful first claim.

5

Presiding over the motion for summary judgment was the Honorable Ramy 

I. Djerassi, who assumed the calendar of the Honorable Pamela Pryor 

Dembe upon her July 2015 retirement.
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of the attorneys and staff who performed the billable work, the 

amount of time to complete the work and the monetary fee for 

the legal work and expenses.

On April 29, 2011, David Giles, Esquire of SGR emailed the 

following to plaintiffs Newman and Brownstein:

“As we advised you, as of March 1, 2011, you owe 

our firm approximately $91,000.00 in legal fees 

regarding our defending you from the actions 

brought by Abington Bank to collect on a Loan in the 

amount of $6,390,000.00 made by Abington Bank to 

412 North Front Street LP which was guaranteed by 

the both of you as well as Beatrice Zitomer and 

Beezer Family Real Estate, LLC (“Beezer”). I am 

confirming our agreement wherein you have agreed 

to the following:

1. Payment of $20,000.00 by the close of business 

today.

2. Commencing on June 1, 2011 and on the first day 

of each month thereafter, you will pay $10,000.00 

per month until all legal fees incurred in this 

matter have been paid in full.

3. As we previously agreed, you are entitled to a 

courtesy discount of 10% of the legal fees 

incurred and as soon as the amount due in legal 

fees has been reduced to the amount of the 

discount that you are entitled to then such fees 

shall applied [sic] to the satisfaction of the 

discount.

4. We will be drafting a petition for Reconsideration 

of the Court order which improperly violated the 

Deficiency Judgment Act by entering a judgment 

against the both of you without even an action 

being filed against you by Abington Bank under 

your Guaranty Agreements. We will not be 

representing Beatrice Zitomer or Beezer in the 

Petition for Reconsideration. 
J-S67043-16

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5. We will be filing an appeal on the amount of the 

deficiency determined by the Court. We will not 

be filing an appeal of this Order on behalf of 

Beatrice Zitomer or Beezer.

6. We will also be representing the both of you 

regarding any actions filed by Abington Bank 

against you (under the Guaranty Agreements 

executed by you) to collect the “deficiency.” We 

will not be representing Beatrice Zitomer or 

Beezer with respect to any actions filed against 

them by Abington Bank.

7. You are confirming that you owe the legal fees set

forth above and that it is your intention to pay all 

such fees pursuant to the terms of this email.

Please confirm your agreement to the terms set forth 

above.

Best Regards

David Giles[fn]

Fn. Exhibit “3” to Defendants/Counterclaim Plaintiffs’ Motion

for Summary Judgment.

On May 2, 2011, Giles acknowledged receipt of $20,000 from 

plaintiffs and requested confirmation of the parties’ Agreement: 

“Please let me know if you agree to these terms. I received the 

payment, I just want to make sure that we are all in agreement 

with the email I sent on Friday which is set forth below.” On 

May 3, 2011, Brownstein responded: “Agreed, however, we 

reserve the right to review all submissions for payment. I want 

you to take Stern on and get this turned around.” 

In addition to the $20,000 immediate payment, plaintiffs made 

several monthly payments including a $10,000 payment in July 

2011, a $4,000 payment in August 2011, a $20,000 payment in 

December 2011, and a $10,000 payment on January 2012. No 

further payments were made. Presently, SGR alleges that it is 
J-S67043-16

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owed $78,511.94 for legal services rendered and out of pocket 

expenses incurred, exclusive of interest, as set forth in the most 

recent unpaid invoice dated May 3, 2013.[fn]

Exhibit “4” to Defendants/Counterclaim Plaintiffs’ Motion for 

Summary Judgment.

On April 8, 2014, plaintiffs filed their original complaint against 

SGR, Giles and Griffin. On May 21, 2014, certificates of merit 

were filed. [A summary of proceedings leading to the Honorable 

Judge Pamela Pryor Dembe’s order sustaining preliminary 

objections and dismissing Appellants’ negligence and contract 

based claims is provided]. 

Presently before the court is SGR’s motion for summary 

judgment seeking to dismiss plaintiff’s sole remaining claim for 

breach of contract alleging “billing errors” and “overbilling.” SGR 

also seeks judgment on its counterclaims at Count 1 (breach of 

contract) and County 2 (unpaid legal fees).

Trial Court Opinion, filed 2/1/16, at 1, 2-6.

With respect to Appellants’ remaining breach of contract claim 

asserting overbilling and billing errors, the court granted Appellees’ 

summary judgment motion because, in its opinion, Appellants failed to 

present evidence sufficient to make out a prima facie cause of action. 

Specifically, the court opined, the presentation of Appellees’ “invoices with 

boxes drawn around certain entries and another document with notations of 

‘overbilling’ or ‘error in billing’ noted beside each entry[]’” failed to explain 

what the proper amounts for such services really were or why such entries 

constituted errors or overbilling. Id., at 7.

Moreover, the court discounted the deposition testimony of Todd 

Newman, Esquire, that Attorneys Giles and Doherty took too long in 
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responding to the Bank’s letter and preparing for oral argument on the 

deficiency hearing, respectively, and that Giles’ delegation of other matters 

to less experienced attorneys was improper. Id., at 7 n. 9. Newman, the 

court noted, “is not a specialist in banking or lender litigation, confessions of 

judgment or deficiency proceedings. He also testified at deposition that he 

does not get paid by the hour for his legal work and has no experience 

keeping time records.[]” Id. at 7-8. The court, therefore, cited to authority 

calling for summary judgment where a party fails to produce expert 

testimony in a situation requiring one, and no other evidence exists to 

support the cause of action. Id. at 8 (citing Masgai v. Franklin, 787 A.2d 

982, 985 (Pa.Super. 2001).

Consistent with its judgment against Appellants’ breach of contract 

claim alleging overbilling, the court also entered judgment in favor of 

Appellees’ counterclaim for breach of contract pertaining to outstanding fees 

and costs and awarded them $78,511.94 along with prejudgment interest at 

the statutory rate of 6% per annum, totaling $13,148.03. The court, 

however, denied Appellees’ additional counterclaim for $27,000 for legal 

services allegedly performed for Appellant Beezer Family Real Estate 

because the billing invoices attached as exhibits did not distinguish such 

services from the work being performed for Appellants as a group. Without 

such evidence differentiating Beezer in this way, Appellees failed to 

substantiate its claim, the court ruled.
J-S67043-16

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Appellants now contend there existed genuine issues of material fact 

regarding the scope of work Appellees’ promised to perform, whether or not 

it was actually performed, whether or not overbilling took place, and 

whether Newman’s deposition offered sufficient insight into and criticism of 

such billing so as to have required denial of Appellees’ summary judgment 

motion. We disagree.

We begin by noting our scope and standard or review of the grant of 

summary judgment:

Our review of the trial court's grant of summary judgment is 

plenary. Summary judgment is proper where the pleadings, 

depositions, answers to interrogatories, admissions and 

affidavits and other materials show there is no genuine issue of 

material fact and the moving party is entitled to judgment as a 

matter of law. We must view the record in the light most 

favorable to the opposing party and resolve all doubts as to the 

existence of a genuine issue of material fact in favor of the 

nonmoving party. We will reverse the trial court's grant of 

summary judgment only upon an abuse of discretion or error of 

law.

Cresswell v. End, 831 A.2d 673, 675 (Pa.Super. 2003) (citation omitted).

Appellants argue that the allegations of Appellees’ overbilling and 

improper billing practices are so straightforward as to be within the 

understanding of a jury, thus obviating the need for expert explanation. For 

example, Appellants point to Appellants’ bill for over $28,000 for the 

research and drafting of four identical petitions to open/strike as an example 

of a matter coming within the common experience and comprehension of 

nonprofessional persons. Also within a layperson’s understanding, 
J-S67043-16

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Appellants’ contend, is the breach of duty manifest in Appellees’ allowing 

unencumbered property owned by 412 North Front Street to be sold at 

sheriff’s sale, causing additional damages of $200,000. An $80,000 bill for 

work associated with the fair market value hearing is also cited as patently 

excessive.

In Powell v. Risser, 99 A.2d 454 (Pa. 1953), our Supreme Court 

stated: “[E]xpert testimony is necessary to establish negligent practice in 

any profession.” Id. at 456. This Court expounded on the precept in Storm

v. Golden, 538 A.2d 61 (Pa.Super. 1988), wherein we stated that although 

the general statement in Powell “is not a concrete pronouncement as to any 

one profession, it exhibits a recognition that when dealing with the higher 

standards attributed to a professional in any field[,] a layperson's views 

cannot take priority without guidance as to the acceptable practice in which 

the professional must operate.” Id. at 64.

In Storm, the plaintiff alleged that her former attorney breached 

duties owed to her in performance of a real estate transaction. Defendant 

attorney moved for nonsuit given plaintiff's failure to present expert 

testimony. On appeal, we rejected plaintiff's contention that the purported 

simplicity of the real estate transaction eliminated the need for expert 

testimony. Specifically, we stated:

Generally, the determination of whether expert evidence is 

required or not will turn on whether the issue of negligence in 

the particular case is one which is sufficiently clear so as to be 

determinable by laypersons or concluded as a matter of law, or 
J-S67043-16

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whether the alleged breach of duty involves too complex a legal 

issue so as to warrant explication by expert evidence.... Here, 

the underlying question of whether legal malpractice occurred 

revolves around a lawyer's duty and responsibility in connection 

with representing a client in a real estate transaction. We do not 

agree with appellant's assertions that the sale of real estate is an 

elementary and non-technical transaction [that] requires only 

simple common sense.... At issue is not the simplicity of the 

transaction but the duty and degree of care of the attorney. 

Whether an attorney failed to exercise a reasonable degree of 

care and skill related to common professional practice in 

handling a real estate transaction is a question of fact outside 

the normal range of the ordinary experience of laypersons.

Id. at 64–65. We indicated, further, that “[e]xpert testimony becomes 

necessary when the subject matter of the inquiry is one involving special 

skills and training not common to the ordinary layperson.” Id. at 64. 

Therefore, our decisional law has held that the standard of care applicable to 

a given profession must be determined from the testimony of experts, 

unless the conduct involved is within the common knowledge of the ordinary 

layperson. 

Contrary to Appellants’ position, we discern nothing about the subject 

matter at issue that resides within the ordinary layperson’s common 

knowledge. Billing practices in the litigation of petitions to open or strike 

orders relating to the high-stakes banking and real estate matters at hand 

would transcend the experience of lay jurors and, therefore, require the 

testimony of an expert to clarify the issues. Attorney Newman did not fill 

that role, moreover, as he, himself, conceded that the scope of his practice 

and skills has never included such work. 
J-S67043-16

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Nor was it obviously the product of a breached duty of care that 

unencumbered property belonging to debtor 412 North Front Street 

Associates was also subjected to sheriff’s sale, as the sale proceeds were 

applied to satisfy the debtor’s obligations owed to Abington Bank. Again, an 

expert would have been required to explain how Appellees’ actions or 

inaction in this instance deviated from the “knowledge and skill required” of 

an attorney practicing in this field. Therefore, Appellants’ failure to produce 

an expert or any other source of explication as to the standards of care 

required in the case sub judice justified the dismissal of their claim. 

Consistent with its dismissal of Appellants’ claim of overbilling, the 

lower court accepted Appellees’ counterclaim that Appellants were, 

therefore, in breach of contract by not paying the outstanding $91,000.00 in 

legal fees in accordance with the parties’ agreement. In their May 3, 2011, 

reply to David Giles’ letter setting forth the balance of legal fees owed, 

Newman and Brownstein clearly and concisely said they “agreed” with Giles’ 

accounting. See correspondence, supra. Appellants deny that their reply 

amounted to an agreement on legal fees owed because, they claim, it was 

made under duress and only in response to David Giles’ “ultimatum” 

demanding payment. Consequently, Appellants argue, there was no 

“account stated” on which they were subject to pay. 

This bare assertion, however, is in conflict with the record before the 

lower court, as the correspondence between the parties supports the court’s 

conclusion that no issue of material fact existed regarding the formation of 
J-S67043-16

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an agreement as to the amount of legal fees accrued as of the April 29, 

2011 date of Giles’ letter. Neither Appellants’ financial difficulties at the time 

nor their subsequent statement in reply to Giles that they reserved the right 

to review all submissions for payment qualified, in any way, their succinct 

and explicit assent to Giles’ account of legal fees as of the date of their 

correspondence. Accordingly, we will not disturb the grant of summary 

judgment on this this claim for legal fees.6 

Order Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016

____________________________________________

6 We also affirm the court’s denial of summary judgment on Appellees’ 

counterclaim for $27,000 payable by Appellant Beezer Family Real Estate, as 

Appellees’ briefed argument fails to address, let alone establish error with, 

the lower court’s determination that billing invoices did not separately 

describe work performed for Beezer as a separate group. As such, we 

perceive no reason to upset the court’s conclusion that factual support for 

the position that such a sum was due and owing by Beezer was lacking.