J-A19036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

DON T. CARMODY 

Appellant

v.

POST AND SCHELL, P.C., SIDNEY R. 

STEINBERG, MARC H. PERRY, 

ANDREW W. ALLISON, AND ERIKA 

M. PAGE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3151 EDA 2022

Appeal from the Order Entered November 10, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 201100106

BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 13, 2023

Don T. Carmody (Carmody) appeals pro se1from the November 10, 

2022 order of the Court of Common Pleas of Philadelphia County (trial court) 

granting the motion for summary judgment on filed by Post & Schell, P.C., 

Sidney R. Steinberg, Marc H. Perry (Perry), Andrew W. Allison and Erika M. 

Page (collectively, Appellees). We affirm.

I.

The trial court aptly summarized the facts of the instant case as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Carmody is an attorney licensed to practice in New York.
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On November 23, 2015, [Carmody] was involved in a motor 

vehicle accident in Center City Philadelphia, when the taxicab in 

which he was riding was struck by hit and run motorist. As a 

result of this accident, [Carmody] suffered injuries and sought to 

sue the taxicab driver, Favzi Abdullah; the taxicab company (who 

he purported to be “215-Get-A-Cab”); and the unidentified driver 

of the hit and run vehicle as he believed the accident was caused 

by their combined negligence.

In December 2015, [Carmody] entered into a contingency fee 

agreement with Post & Schell. After becoming dissatisfied with 

the manner in which Post & Schell was handling his case, 

[Carmody] asked for his file to be sent to him. [Carmody] stated 

in his deposition that he failed to respond to any of Post & Schell’s 

repeated efforts to contact him about his case after he received 

his file, claiming that he “had no obligation to do so.” According 

to [Carmody’s] deposition testimony, he and [Perry], a Post & 

Schell attorney handling his case, had a phone conversation on 

November 22, 2017 in which Mr. Perry stated that the statute of

limitations for [Carmody’s] tort claim was expiring on November 

23, 2017, that Perry was under the impression that Post & Schell 

no longer represented [Carmody], but that he would speak with 

his general counsel regarding how to proceed. Later that same 

day, [Carmody] filed a pro se Complaint (“pro se action”) against 

the wrong entity, 215-Get-A-Cab.

On November 27, 2017, Mr. Perry, in abundance of caution since 

it was unclear where Post & Schell’s representation stood, filed a 

Complaint (“Post & Schell action”) on [Carmody’s] behalf against 

the correct entities: taxicab driver Favzi Abdullah, AF Taxi Inc., 

and the Philadelphia Taxi Association, Inc. Due to the 

Thanksgiving holiday, this complaint was timely filed before the 

expiration of the statute of limitations. In [Carmody’s] deposition 

testimony, he stated that Post & Schell’s filing of this complaint 

was “unauthorized” and maintained that Post & Schell “no longer 

represented me as of my filing of the pro se complaint.”

On October 15, 2018, the Honorable Shelly Robins New granted 

Post & Schell leave to withdraw as counsel and gave [Carmody]

sixty (60) days to retain new counsel. He failed to procure new 

counsel and failed to prosecute the Post & Schell action, explaining

in his deposition that he “had no responsibility as far as that case 

was concerned, no obligations, no relationship to it. It had nothing 

to do with me.” After failing to appear at his scheduled arbitration 
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hearing on January 24, 2019, the Honorable Lisette ShirdanHarris entered a judgment of non-pros.

Subsequently, [Carmody] learned from 215-Get-A-Cab general 

counsel Danielle Friedman, Esquire, that 215-Get-A-Cab was a 

dispatch service only and not the owner of the taxicab company. 

On April 8, 2019, [Carmody] lost his pro se action at arbitration 

since he had sued the wrong entity. He did not file an appeal to 

the Philadelphia Court of Common Pleas.

[Carmody] commenced the instant action against [Appellees] on 

November 2, 2020. He asserted claims for (1) legal malpractice; 

(2) intentional infliction of emotional distress; and (3) fraud. He 

further sought punitive damages. [Carmody] filed Amended 

Complaints on February 23, 2021, April 1, 2021, and May 5, 2021.

Trial Court Opinion, 3/31/23, at 2-4 (citations omitted). Appellees ultimately 

filed a motion for summary judgment, which was granted following briefing by 

both parties. Relevant to this appeal, the trial court concluded that Carmody 

had failed to state a claim for legal malpractice because he did not obtain an 

expert supporting his claim or show that he would have succeeded in his

underlying motor vehicle accident claim. It further held that the complaint 

was untimely filed after the expiration of the statute of limitations, that 

Carmody was not entitled to punitive damages, and that he was not entitled 

to conduct additional discovery after the deadline for doing so had passed. 

Carmody timely appealed and he and the trial court have complied with Pa. 

R.A.P. 1925.2

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2 The trial court observed that Carmody’s concise statement of issues 

complained of was “a disproportionally lengthy Statement of Errors for this 

type of matter involving a limited number of issues.” Trial Court Opinion, 

(Footnote Continued Next Page)
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II.

On appeal, Carmody contends that the trial court erred in granting 

Appellees’ motion for summary judgment on his claim for legal malpractice 

and punitive damages.

3, 4

 First, he argues that his complaint was timely filed 

because Appellees’ malpractice was ongoing until they were granted leave to 

withdraw from the underlying case in October of 2018. Next, he argues that 

he can establish a claim for malpractice without expert testimony and that he 

can prove the viability of his underlying motor vehicle accident claim. Because 

he contends that the legal malpractice claim is cognizable, he asserts that he 

is entitled to pursue punitive damages as well. Finally, he argues that the trial 

court erred in granting summary judgment without allowing him to conduct 

additional discovery pursuant to Pa. R. Civ. P. 1035.3(b).

____________________________________________

3/31/23, at 4. “In addition, this Statement of Errors is redundant and poorly 

organized, making it difficult for [the trial court] to review his alleged errors.” 

Id. at 4-5. While we agree that Carmody’s statement is not a model of clarity, 

the trial court was able to discern the relevant issues and our review on appeal 

is not hampered. Thus, we decline to find waiver.

3 Carmody has not challenged the trial court’s order as to the claims of 

intentional infliction of emotional distress and fraud.

4 This Court’s scope of review of a trial court’s order granting summary

judgment is plenary and we apply the same standard for summary judgment

as does the trial court. [A]n appellate court may reverse a grant of summary

judgment if there has been an error of law or an abuse of discretion.” Weaver

v. Lancaster Newspapers, Inc., 926 A.2d 899, 902–03 (Pa. 2007) (internal

citations omitted). A de novo standard of review applies as to whether there

exists an issue of material fact, as this presents a pure question of law. Id.
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“Summary judgment is appropriate only in those cases where the record 

clearly demonstrates that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law.” Atcovitz v. 

Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa. R.C.P. 

No. 1035.2. When considering a motion for summary judgment, the trial court 

must construe all facts of record and make all reasonable inferences in the

light that most favors the non-moving party. See Toy v. Metro. Life Ins. 

Co., 928 A.2d 186, 195 (Pa. 2007). Any question as to whether there exists 

a genuine issue of material fact must be resolved against the moving party. 

Id. For the purposes of summary judgment, the record includes pleadings, 

depositions, answers to interrogatories, admissions, affidavits and expert 

reports. Pa. R. Civ. P. 1035.1, 1035.4.

A.

We begin with Carmody’s argument related to the statute of limitations. 

He argues that the Appellees committed malpractice when they filed the motor 

vehicle lawsuit on November 27, 2017, without his authorization. He contends 

that following his phone conversation with Perry, he believed that Appellees 

no longer represented him and proceeded to file his pro se action based on 

that belief. Thus, he contends that the lawsuit Appellees commenced in his 

name was unauthorized and constituted legal malpractice. While he 

recognizes that our Supreme Court rejected the “continuous representation 

rule” for determining the statute of limitations for legal malpractice in Clark 
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v. Stover, 242 A.3d 1253 (Pa. 2020), he insists that there should be an 

exception when a lawsuit is pursued without a party’s express authorization.

Legal malpractice claims sounding in tort are subject to a two-year 

statute of limitations. 42 Pa.C.S. § 5524(7). It is well-settled that 

Pennsylvania observes the “occurrence rule” for the statute of limitations in 

legal malpractice cases. “Under this rule, the statutory period commences 

upon the happening of the alleged breach of duty.” Glenbrook Leasing Co. 

v. Beausang, 839 A.2d 437, 441 (Pa. Super. 2003) (citation omitted). In 

Clark, our Supreme Court considered whether to adopt the “continuous 

representation rule” for claims of legal practice, which would toll the statute 

of limitations for legal malpractice until the date the attorney’s representation 

of the plaintiff was terminated. Clark, supra, at 1255. The High Court 

rejected the rule, concluding that it was within the province of the General 

Assembly, not the courts, to amend statutes of limitations or adopt new tolling 

provisions. Id. at 1256-57.

Glenbook Leasing and Clark are dispositive of Carmody’s argument. 

Though he contends that initiating a lawsuit without authorization should 

constitute an exception to the occurrence rule, he cites no case law or statute 

in support of this position and this Court cannot craft an extra-statutory tolling 

exception to the statute of limitations. Clark, supra. Because Carmody 

contends that Appellees’ malpractice occurred in November of 2017 by filing 

suit without his authorization, he was required to file his suit by November of 
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2019. The instant case, filed November 2, 2020, was untimely. Accordingly, 

the trial court did not err in granting summary judgment on this basis.

B.

Though the statute of limitations is dispositive of Carmody’s case, we 

briefly address the remaining arguments he raises on appeal. He claims that 

summary judgment was inappropriate because he can prosecute his claim for 

legal malpractice without expert testimony, and that he can establish that he 

would have succeeded in recovering for his automobile accident but for 

Appellees’ malpractice. He contends that filing a lawsuit without authorization 

is the type of malpractice an ordinary juror can comprehend without expert 

testimony, and the only issue of fact for the jury to decide was whether the 

Appellees continued to represent him when they filed suit on his behalf.

A claim for legal malpractice is comprised of three elements: “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.” Storm v. Golden, 538 

A.2d 61, 64 (Pa. Super. 1988). The Storm Court concluded that expert 

testimony is generally necessary to establish the second element of 

malpractice:

Expert testimony becomes necessary when the subject matter of 

the inquiry is one involving special skills and training not common 

to the ordinary lay person. . . .

We expressly limit our holding to the present circumstances in 

order to allow flexibility as to when expert evidence is needed. 
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Legal malpractice claims run a wide gamut of circumstances from 

clear cut claims of a breach of an attorney’s duty for allowing the 

statute of limitations to run against the former client’s cause of 

action to the complex determination required of a claim of breach 

of duty involving the attorney’s choice of trial tactics in which a 

layperson’s judgment obviously requires guidance. Between 

these two extremes lie a myriad number of legal malpractice 

actions for which the necessity of expert evidence to establish the 

attorney’s duty and breach thereof will not be readily evident 

without careful examination of the factual circumstances upon 

which they arise.[] 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 whether the alleged breach of duty involves too complex 

a legal issue so as to warrant explication by expert evidence.

Id. at 64–65 (citations omitted, cleaned up). In analyzing the third element 

of legal malpractice, a plaintiff must establish a “claim within a claim,” i.e., 

that but for the defendant’s malpractice, he would have recovered on his 

underlying suit. See 412 N. Front St. Assocs., LP v. Spector Gadon & 

Rosen, P.C., 151 A.3d 646, 657 (Pa. Super. 2016) (“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.”).

Our Rules of Civil Procedure require that a plaintiff in a professional 

liability action file a certificate of merit within 60 days of filing his complaint

certifying that an “appropriate licensed professional” has found a “reasonable 

probability” that the defendant caused the plaintiff’s harm through work 

“outside acceptable professional standards.” Pa. R. Civ. P. 1042.3(a)(1). 

Section (a)(2) of the rule allows for a certificate of merit based on the 
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defendant’s responsibility to supervise another licensed professional’s work. 

Pa. R. Civ. P. 1042.3(a)(2). Alternatively, the certificate may certify that 

expert testimony “is unnecessary for prosecution of the claim.” Pa. R. Civ. P. 

1042.3(a)(3).

Here, Carmody filed a certificate of merit under all three subsections of 

the Rule. Pursuant to Section (a)(1), he asserted that he, as an attorney 

licensed in New York, was an appropriate licensed professional who had 

concluded that Post & Schell’s conduct fell outside of acceptable professional 

standards in pursuing his motor vehicle accident claim. Under Section (a)(2), 

he certified that Post & Schell was responsible for the conduct of the attorneys 

it supervised who did not meet professional standards. Finally, under Section 

(a)(3), he certified that the malpractice at issue did not require expert 

testimony to establish. On appeal, he relies on this third basis to argue that 

his certificate of merit was sufficient, claiming that expert testimony was not 

necessary because the issue of the unauthorized filing of Post & Schell’s 

complaint was a simple matter of “common sense” that could be understood 

by a jury without expert analysis. Carmody’s Brief at 17.

We disagree. Here, Carmody claims that the malpractice at issue was 

the filing of the Post & Schell’s complaint without his authorization. The 

record, however, reveals that the issue of whether Appellees were justified in 

believing that they had a duty to represent Carmody was more complex. For 

instance, in October of 2016, Carmody asked Perry to send him a copy of his 
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file for the motor vehicle accident case. Perry did so, along with a letter asking 

Carmody to confirm his understanding that Appellees were no longer

representing him in the case. The letter additionally notified Carmody that 

the statute of limitations on his claim would expire on November 23, 2017, 

again based on Perry’s understanding that Carmody had terminated his 

representation. Carmody did not respond to the letter, explaining in his 

deposition that he had “no obligation to do so.” Depo. of Carmody, 5/31/22, 

at 214. Perry apparently took this non-response as confirmation that the 

relationship had terminated.

On the eve of the expiration of the statute of limitations, on November 

21, 2017, Carmody contacted Perry for an update on the status of the matter. 

Perry immediately responded and said that he believed the representation had 

been terminated and that Carmody was no longer retaining Appellees to 

represent him in the matter. When Carmody disputed this interpretation of 

events, Perry informed him he would have to speak with his general counsel 

to determine how to proceed. When Carmody did not hear back from Perry 

that same day, he filed his pro se complaint. Perry timely initiated the Post & 

Schell action on the following Monday to protect Carmody’s rights, but then 

later sought to withdraw based on the breakdown in the relationship.

Carmody’s argument is based on contradictory premises: first, that that 

attorney-client relationship was ongoing in November of 2017 and that 

Appellees had failed to diligently pursue his case, and second, that Appellees 
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did not have his authorization to file the Post & Schell complaint. Analysis of 

this claim would require a jury to consider the October 2016 letter and the 

circumstances leading up to the November 2017 conversations to determine 

the status of Appellees’ representation of Carmody. These considerations 

implicate best practices for terminating an attorney-client relationship and the 

reasonableness of Perry’s beliefs about Carmody’s conduct, all of which are 

outside the general understanding of a jury of laypeople. Accordingly, we 

cannot conclude that Carmody would be able to establish malpractice without 

expert testimony on these matters.

In any event, the trial court did not err in determining that Carmody had 

failed to produce evidence that but-for Appellees’ alleged malpractice, he 

would have recovered damages related to the motor vehicle accident. 

Crucially, Carmody could not produce any evidence that the driver of his 

taxicab was negligent. To the contrary, he testified at his deposition that the 

taxicab had been stopped at a red light and then proceeded into the 

intersection when the light turned green, at which point it was struck at a high 

rate of speed by the hit-and-run driver. A witness at the scene of the accident 

also reported to police that the taxi had been proceeding normally into the 

intersection when it was struck by the hit-and-run driver. Neither Carmody, 

Appellees nor the police ever identified the hit-and-run driver, who was 

undoubtedly at fault for the accident and the proper defendant from whom to 
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recover.5 While Carmody asserted that family members spoke with 

Hahnemann Hospital security and viewed footage of the accident, they did not 

identify the hit-and-run driver from this footage and no party was ever able 

to secure a copy of the alleged video. Thus, even if Carmody had elected to 

prosecute the lawsuit Appellees filed on his behalf, he was not able to establish 

that he would have recovered for his injuries. With no causal connection 

between the alleged malpractice and his proclaimed losses from the motor 

vehicle accident, Carmody could not succeed on his malpractice claim. 412 

N. Front St. Assocs., LP, supra. No relief is due.6

C.

Finally, Carmody contends that the trial court erred by granting 

summary judgment without allowing him to seek discovery pursuant to Rule 

of Civil Procedure 1035.3(b). See Pa. R. Civ. Pro. 1035.3(b) (“An adverse 

party [to a motion for summary judgment] may supplement the record or set 

____________________________________________

5 Perry confirmed early in the case that Carmody did not have uninsured 

motorist insurance with which he could file a claim for the accident.

6 Carmody summarily argues that “[i]n the event this matter is remanded, it 

follows that, consequently, a path will exist for the recovery of punitive 

damages and [he] should be entitled to prove up his entitlement to punitive 

damages[.]” Carmody’s Brief at 19. However, as we have found that 

Carmody’s claim is untimely and that he has failed to set forth a cause of 

action for legal malpractice, he similarly has no cognizable basis to seek 

punitive damages. See Weston v. Northampton Pers. Care, Inc., 62 A.3d 

947, 961 (Pa. Super. 2013) (citation omitted) (“A request for punitive 

damages does not constitute a cause of action in and of itself. Rather, a 

request for punitive damages is merely incidental to a cause of action.”).
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forth the reasons why the party cannot present evidence essential to justify 

opposition to the motion and any action proposed to be taken by the party to 

present such evidence.”). He faults Appellees for not responding to his 

interrogatories, expert interrogatories and requests for production of 

documents and complains that the trial court should have allowed additional 

time for him to seek discovery.

The trial court addressed this issue as follows:

A review of the docket in this matter shows that the discovery 

deadline was June 6, 2022 and the expert deadline was July 1, 

2022.[] During the discovery period, [Carmody] did nothing to 

participate in discovery in any meaningful way. He did not take 

any depositions, did not issue any subpoenas, and failed to 

procure any expert reports. Indeed, [Carmody] was sanctioned 

twice, on June 15, 2021 and on July 8, 2022, for failing to comply 

with discovery requests from [Appellees]. [Carmody] only 

appeared for a deposition after [Appellees] filed a motion to 

compel him to appear.[] [Carmody] did not make any discovery 

requests from [Appellees] until June 7, 2022, one day after the 

discovery deadline had elapsed. Even though [Appellees] had no 

obligation to respond to this untimely request, [Appellees] still 

responded to [Carmody’s] request for admissions and turned over 

their legal expert report. Furthermore, [Appellees] already

provided Plaintiff with his entire file upon his request. [Carmody] 

does not state what other evidence he believes [Appellees] still 

have in their possession. The record is clear that [Carmody] had 

ample time during the discovery period to obtain any evidence he 

required to prove his claims and he inexplicably chose not to do 

so. There is nothing, if anything, he could obtain from [Appellees] 

now that he could not have acquired prior to [Appellees] filing 

their Motion for Summary Judgment. Moreover, [Carmody] has 

repeatedly stated that he does not have and will not procure any 

expert reports for his legal malpractice and intentional infliction of 

emotional distress claims. Without expert evidence, both claims 

fail and no other form of evidence he could purport to get from 

[Appellees] can cure them. Accordingly, no relief is due.
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Trial Court Opinion, 3/31/23, at 15-16 (emphasis in original). We agree. The 

record reveals that Carmody waited until the eve of the discovery deadline to 

participate in the process and delayed producing his own responses to 

Appellees’ timely discovery requests throughout the pendency of the case. 

The trial court elected not to reward this gamesmanship by allowing him to 

conduct additional discovery when he had ample time to do so before the 

deadline expired and could not explain why additional time was warranted.7 

This claim is meritless.

Order affirmed.

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7 Carmody insists that his discovery requests were timely filed on June 6, 

2022. In their reply to his response to their motion for summary judgment, 

Appellees attached an email from Carmody with his discovery requests that 

was dated June 7, 2022, at 1:07 AM. The email noted it had forwarded the 

requests “via Federal Express this evening, Pacific Time.” Reply Memorandum 

in Further Support of Defendants’ Motion for Summary Judgment, 9/15/22, 

Exhibit A. An accompanying FedEx receipt indicated that the materials were 

shipped on June 7, 2022, and received by Appellees on June 13, 2022. Id. 

Carmody asserts that he shipped the materials to Appellees from California at 

7:53 PM on June 6, 2022. This was clearly not a good faith effort to comply 

with the case management deadline or our Rules of Civil Procedure. See, 

e.g., Pa. R. Civ. Pro. 4009.12(a) (granting parties 30 days to respond to 

document requests); Pa. R. Civ. Pro. 4014(b) (granting parties 30 days to 

respond to requests to admission unless deadline is altered by the court).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2023