J-A13006-20

J-A13007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JIBREEL TOWNSEND 

Appellant

v.

SPEAR, GREENFIELD AND RICHMAN, P.C., 

AND MARK GREENFIELD, ESQUIRE AND 

RAND SPEAR, ESQUIRE 

___________________________________ 

JIBREEL TOWNSEND 

Appellant

v.

STUART A. RICHMAN, ESQUIRE

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 IN THE SUPERIOR 

COURT OF

 PENNSYLVANIA

 No. 2950 EDA 2019

Appeal from the Order Entered September 6, 2019

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

No(s): 001360 Sept. Term 2017, 

002945 Oct. Term 2018

JIBREEL TOWNSEND 

Appellant

v.

SPEAR, GREENFIELD AND RICHMAN, P.C., 

AND MARK GREENFIELD, ESQUIRE AND 

RAND SPEAR, ESQUIRE 

___________________________________ 

JIBREEL TOWNSEND 

Appellant

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 IN THE SUPERIOR 

COURT OF

 PENNSYLVANIA

 No. 2955 EDA 2019
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v.

STUART A. RICHMAN, ESQUIRE

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Appeal from the Order Entered September 6, 2019

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

No(s): 001360 Sept. Term 2017, 

002945 Oct. Term 2018

BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: Filed: August 13, 2020

Appellant, Jibreel Townsend, appeals at docket number 2950 EDA 2019 

from the trial court’s September 6, 2019 order granting summary judgment 

in favor of Appellees, Spear, Greenfield and Richman, P.C., Marc Greenfield, 

Esquire, and Rand Spear, Esquire. In addition, Mr. Townsend appeals at 

docket number 2955 EDA 2019 from that same September 6, 2019 order, 

which also granted summary judgment in favor of Appellee, Stuart A. 

Richman, Esquire.1, 2 We affirm. 

The trial court summarized the background of this case as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We sua sponte consolidate these appeals pursuant to Pa.R.A.P. 513. See

Pa.R.A.P. 513 (“Where there is more than one appeal from the same order, or 

where the same question is involved in two or more appeals in different cases, 

the appellate court may, in its discretion, order them to be argued together in 

all particulars as if but a single appeal.”). 

2 We refer herein to Spear, Greenfield and Richman, P.C., Attorney Greenfield, 

Attorney Spear, and Attorney Richman collectively as “Defendant-Attorneys.” 
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On October 8, 2011, Mr. ... Townsend, age 37, was standing 

behind his car after he ran out of gas on Aramingo Avenue in 

Philadelphia.... As he reached into the trunk for a gasoline can, a 

Jeep Cherokee crashed into him, crushing his lower extremities.

The Jeep was owned by Dr. Harold Milstein. Dr. Milstein’s 

daughter, Karli[e], was seated in the front passenger seat. The 

driver was Samuel Kemp. Mr. Kemp later testified that he fell 

asleep at the wheel after ingesting Xanax and Percocet given to 

him by Ms. ... Milstein[.] In subsequent criminal proceedings, Mr.

Kemp was incarcerated. Ms. Milstein was accepted into an 

[accelerated rehabilitative disposition (ARD)] program after [Mr.]

Townsend submitted an [a]ffidavit of support on her behalf.

Mr. Townsend retained the law firm of Spear[,] Greenfield and 

Richman, P.C.[,] to represent him for the auto accident case. 

[Mr.] Townsend commenced litigation on December 10, 2012, in 

the Court of Common Pleas of Philadelphia. The [d]efendants 

named in the Complaint were Mr. Kemp and Dr. Milstein.

Allstate Insurance Company provided the insurance coverage for 

the Jeep. Dr. Milstein was the named insured. He had a 

$500,000.00 primary policy and a $2 million umbrella policy.

On September 30, 2016, the parties went to private mediation 

before the Honorable Diane Welsh (Ret.). Mr. Townsend testified 

that[,] after she met with all counsel and with representatives 

from Allstate, Judge Welsh met with [Mr.] Townsend. [Mr. 

Townsend] agreed to settle for $702,800.00. The Allstate 

settlement funds were allocated as follows:

$500,000.00 - Primary Policy

 200,000.00 - Umbrella Policy

 2,800.00 - Property (Mr. Townsend’s truck)

$702,800.00

On October 11, 2016, [Mr.] Townsend signed a General Release. 

On November 18, 2016, [Mr. Townsend] signed a Settlement 

Agreement and Release. On December 16, 2016, [Mr. Townsend] 

executed a Schedule of Distribution -- which set forth his net 

recovery and his structured settlement payouts.

In February[] 2017, Mr. Townsend received an unsolicited letter 

in the mail from the law firm of Forbes Bender Paolino & DiSanti, 
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P.C. It was signed by Attorney Guy N. Paolino. The letter, dated 

February 2, 2017, states in pertinent part:

[]As I understand it, you have recently settled your claim 

arising out of a motor vehicle accident that you were 

involved in on October 8, 2011. I also understand that the 

injuries you suffered in the accident were quite severe and 

that you may not have recovered all of the potential policy 

coverages available from Allstate Insurance Company. It is 

my belief that if all of the proper parties were named as 

defendants in this case, your injuries would have warranted 

Allstate to tender all of the policy coverages available to you 

in the settlement of your claim.[]

Shortly thereafter[,] Mr. Townsend contacted Attorney Paolino. In 

September[] 2017, the firm of Forbes Bender Paolino & DiSanti, 

P.C[.,] initiated this litigation against Spear[,] Greenfield and 

Richman, P.C., Marc Greenfield, Esquire and Rand Spear, Esquire 

on behalf of Mr. Townsend. In October[] 2018, a second and 

similar lawsuit was filed naming Stuart A. Richman, Esquire. The 

matters have been consolidated for pre-trial and trial[.] (All 

[d]efendants will be referred to as “Defendant-Attorneys”....)[.]

The current litigation is grounded in professional negligence and 

fraud. Mr. Townsend’s [c]omplaints state that the failure of the 

Defendant-Attorneys to sue Karli[e] Milstein in the underlying 

auto case for negligent entrustment “... [limited] the applicable 

insurance coverage for the accident to the $500,000.00 

automobile liability insurance policy and jeopardiz[ed] any 

coverage for the $2 million umbrella insurance policy.” [Mr.] 

Townsend’s [c]omplaints assert that he was fraudulently induced 

to settle his case for an amount that was less than the “value” of 

his auto litigation.

All Defendant-Attorneys have filed ... related [m]otions for 

[s]ummary [j]udgment....

Trial Court Opinion (TCO), 9/6/19, at 1-3 (internal citation omitted). 

With respect to these summary judgment motions, the trial court 

subsequently granted summary judgment in favor of all Defendant-Attorneys, 

determining that Mr. Townsend’s claims “are expressions of frustration and 

dissatisfaction with the amount of the 2016 settlement[,]” which are barred 
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by the rule set forth in Muhammad v. Strassburger, McKenna, Messer, 

Shilobod and Gutnick, 587 A.2d 1346 (Pa. 1991), and its progeny, in which 

our Supreme Court held that it “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.” See TCO at 4-5; Muhammad, 587 A.2d at 

1348. Additionally, the trial court concluded that, as a matter of law, Mr. 

Townsend did not produce sufficiently clear, precise, and convincing evidence 

to make out a prima facie case of fraudulent inducement. See TCO at 6-8. 

Accordingly, on September 6, 2019, the trial court granted summary 

judgment in favor of all Defendant-Attorneys and dismissed Mr. Townsend’s 

complaints with prejudice.

On October 4, 2019, Mr. Townsend timely filed separate notices of 

appeal at each docket in accordance with Commonwealth v. Walker, 185 

A.3d 969, 971 (Pa. 2018) (holding that “where a single order resolves issues 

arising on more than one docket, separate notices of appeal must be filed for 

each of those cases”).3 The trial court did not order Mr. Townsend to file 

____________________________________________

3 On these notices of appeal, which were identical, Mr. Townsend listed both 

docket numbers. Recently, an en banc panel of this Court determined that 

“[w]e should not invalidate an otherwise timely appeal based on the inclusion 

of multiple docket numbers, a practice that the Rules themselves do not 
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concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b), and he did not do so. 

Presently, Mr. Townsend raises the following issues for our review:

A. Did the lower court err in applying the case of Muhammad ... 

under the facts of our case?

B. Did the lower court err in granting summary judgment on [Mr. 

Townsend’s] fraudulent inducement cause of action?

C. Did the lower court err in granting summary judgment with 

regard to [Defendant-Attorneys’] claim in its motion that if Karlie

Milstein is not covered under the Allstate Umbrella Insurance 

Policy pursuant to the intentional/criminal act provisions, then 

[Mr. Townsend] cannot prove that [Defendant-Attorneys’] alleged 

malpractice caused any damages?

Mr. Townsend’s Brief at 6 (unnecessary capitalization omitted).4 

At the outset, we acknowledge our standard of review for an order 

granting a motion for summary judgment:

Our standard of review of an order granting summary judgment 

requires us to determine whether the trial court abused its 

discretion or committed an error of law[,] and our scope of review 

is plenary. We view the record in the light most favorable to the 

____________________________________________

expressly forbid.” See Commonwealth v. Johnson, -- A.3d --, 2020 WL 

3869723, at *4 (Pa. Super. filed July 9, 2020). Accordingly, in Johnson, 

which contains similar circumstances to the case at bar, this Court explained 

that, “[b]ecause Johnson appealed from four docket numbers and filed four 

notices of appeal, Johnson has complied with Walker. The fact that each 

notice of appeal listed all four docket numbers does not invalidate his notices 

of appeal, and we decline to quash his appeals.” Id. In reaching this 

conclusion, the Johnson Court overruled this Court’s previous 

pronouncement in Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 

2019), that a notice of appeal may contain only one docket number. Thus, 

pursuant to Johnson, we need not quash Mr. Townsend’s appeal due to his 

listing both docket numbers on his separately filed notices of appeal. 

4 We have re-ordered Mr. Townsend’s issues for ease of disposition. 
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nonmoving party, and all doubts as to the existence of a genuine 

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

Only where there is no genuine issue as to any material fact and 

it is clear that the moving party is entitled to a judgment as a 

matter of law will summary judgment be entered.

* * *

Where the non-moving party bears the burden of proof on an 

issue, he may not merely rely on his pleadings or answers in order 

to survive summary judgment. Further, failure of a nonmoving 

party to adduce sufficient evidence on an issue essential to his 

case and on which he bears the burden of proof establishes the 

entitlement of the moving party to judgment as a matter of law.

Silvagni v. Shorr, 113 A.3d 810, 812 (Pa. Super. 2015) (citation omitted). 

A. 

In Mr. Townsend’s first issue, he contends the trial court erred in 

applying Muhammad to determine that it precluded his cause of action for 

negligence/legal malpractice. See Mr. Townsend’s Brief at 35. He claims that 

his “case is not one of unhappiness with the settlement as set forth in 

Muhammad[,] but rather his cause of action arises from a set of facts wherein 

the attorneys’ negligence caused the diminished settlement by failing to name 

a proper party.” Id. at 38. He argues that Muhammad “does not immunize 

attorneys from legal error upon which a settlement was causally predicated. 

The Muhammad settle[-]and[-]suit prohibition only prohibits speculative 

second guessing [of] the settlement valuation.” Id. at 37. 

This Court has previously summarized Muhammad as follows:

In Muhammad, plaintiffs filed a legal malpractice action against 

defendant law firm as a result of defendant’s representation of 

plaintiffs in a medical malpractice lawsuit following the death of 

plaintiffs’ child. Defendant law firm negotiated a settlement of the 

medical malpractice case. Plaintiffs verbally accepted the 
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settlement offer. Thereafter, plaintiffs changed their minds about 

the settlement before signing a written accord. [The defendants 

in the medical malpractice case] filed a Rule to Show Cause why 

the settlement agreement should not be enforced. After an 

evidentiary hearing, the trial court enforced the agreement. The 

court ordered the defendants in the medical malpractice case to 

pay the settlement funds and instructed the prothonotary to mark 

the case settled. Plaintiffs hired new counsel, appealed the order, 

and this Court affirmed. Muhammad v. Childrens Hospital, ...

487 A.2d 443 ([Pa. Super.] 1984) (unpublished memorandum 

opinion).

Thereafter, plaintiffs filed a legal malpractice case against the law 

firm that had negotiated the medical-malpractice settlement. The

legal malpractice case was dismissed, and our Supreme Court 

affirmed that dismissal, stating:

This case must be resolved in light of our longstanding 

public policy which encourages settlements. 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.

Muhammad, 587 A.2d at 1348.... The Court further stated:

[W]e foreclose the ability of dissatisfied litigants to agree to

a settlement and then file suit against their attorneys in the 

hope that they will recover additional monies. To permit 

otherwise results in unfairness to the attorneys who relied 

on their client’s assent and unfairness to the litigants whose 

cases have not yet been tried. Additionally, it places an 

unnecessarily arduous burden on an overly taxed court 

system. 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.

Id. at 1351. 
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Kilmer v. Sposito, 146 A.3d 1275, 1279 (Pa. Super. 2016) (quoting 

Silvagni, 113 A.3d at 813) (emphasis omitted). 

Our Supreme Court next revisited Muhammad in its non-precedential 

decision, McMahon v. Shea, 688 A.2d 1179 (Pa. 1997), which this Court has 

described as,

affirm[ing] this Court’s reversal of a trial court order invoking 

Muhammad to dismiss a legal negligence claim alleging flawed 

legal advice as the basis for settlement. In our en banc decision, 

we held the policy set forth in Muhammad was not applicable 

where the attorneys’ alleged negligence lay not in the judgment 

regarding the amount to be accepted or paid in a settlement but, 

rather, in the failure to advise a client of well-established 

principles of law and the impact of a written agreement.[5] A six-

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5 Specifically, in McMahon, the following occurred:

Upon separation, Mr. and Mrs. McMahon entered into an 

agreement whereby Mr. McMahon agreed to pay his estranged 

wife alimony and child support. The only provision for termination 

of payment under the agreement was when the youngest child 

reached twenty-one, was emancipated, or finished college. After 

Mr. McMahon filed a complaint in divorce[,] he then entered into 

a stipulation, upon advice of counsel, wherein the previous 

agreements would be incorporated but not merged into the final 

divorce decree. Approximately two months after the divorce 

decree was entered, Mrs. McMahon was remarried. Mr. McMahon 

filed a motion to terminate the order requiring payment of 

alimony[,] which was denied. Mr. McMahon subsequently initiated 

suit against counsel, claiming that counsel was negligent in failing 

to merge the alimony agreement with the final divorce decree.1

1 The Divorce Code provides that the payment of alimony 

shall terminate upon the payee-spouse’s remarriage. See

23 Pa.C.S.[] § 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 
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member Supreme Court affirmed, but with three justices 

concurring in the result because they would not limit Muhammad

to its facts as would the “majority.”

Even without supplying binding precedent, McMahon provides 

helpful guidance..., for the concurrence agreed with the Opinion 

Announcing the Judgment of Court where it distinguished 

“between a challenge to an attorney’s professional judgment 

regarding an amount to be accepted or paid in settlement of a 

claim, and a challenge to an attorney’s failure to correctly advise 

his client about well established principles of law in settling a case. 

This is a reasonable and justifiable distinction.” McMahon, 688 

A.2d at 1183 (Cappy, J., Concurring). As such, all six members 

of the Court deciding the case drew a distinction between “holding 

an attorney accountable to inform a client about the ramifications 

of existing law and allowing the second guessing of an attorney’s 

professional judgment in an attempt to obtain monies, once a 

settlement agreement has been reached.” Id.

Kilmer, 146 A.3d at 1280.

Based on Muhammad, McMahon, and other relevant cases, this Court 

has extracted the following principles:

In cases wherein a dissatisfied litigant merely wishes to second 

guess his or her decision to settle due to speculation that he or 

she may have been able to secure a larger amount of money, i.e[,] 

“get a better deal[,]” the Muhammad rule applies so as to bar 

that litigant from suing his counsel for negligence. If, however, a 

settlement agreement is legally deficient or if an attorney fails to 

explain the effect of a legal document, the client may seek redress 

from counsel by filing a malpractice action sounding in negligence. 

Compare Martos v. Concilio, ... 629 A.2d 1037 ([Pa. Super.] 

1993) (client who was displeased with results of settlement 

agreement could not sue his attorney for malpractice absent 

allegations of fraudulent inducement) with Collas v. Garnick, 

____________________________________________

has been entered. See McMahon v. McMahon, ... 612 

A.2d 1360 ([Pa. Super.] 1992) (en banc).

Banks v. Jerome Taylor & Associates, 700 A.2d 1329, 1331-32 (Pa. Super. 

1997). 
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624 A.2d 117 ([Pa. Super.] 1993) (counsel who negligently 

advised personal injury clients that signing a general release did 

not bar future lawsuits against other possible tortfeasors could be 

liable in negligence).

Banks, 700 A.2d at 1332.6 

Here, Mr. Townsend explains that “the gist of [his] legal malpractice 

claim is the fact that [Defendant-Attorneys] failed to name Karlie Milstein as 

a defendant pursuant to a negligent entrustment claim.” Mr. Townsend’s Brief 

at 36. He says that, “[s]ince [he] was unaware of any potential legal 

malpractice, he had no choice but to accept his attorney’s advice and enter 

into the settlement agreement by signing the release in the underlying 

litigation. Mr. Townsend was unaware of the effect of not naming Karlie 

Milstein as a defendant[,] and that this decision jeopardized potential 

____________________________________________

6 Compare also Silvagni, 113 A.3d at 815 (barring the plaintiff’s negligence 

claim against his attorney pursuant to Muhammad where the plaintiff claimed 

that “the legal advice he received, that an adverse workers’ compensation 

decision could adversely affect his third-party claim, ... was negligent, and this 

caused an unknowing and involuntary settlement in the workers’

compensation matter”); Banks, 700 A.2d at 1332 (“Banks has not complained 

that his attorneys failed to explain the legal effect of the settlement agreement 

nor has Banks complained that the agreement neglected to follow well settled 

legal principles. It is clear, therefore, that Banks is dissatisfied with the 

amount of his settlement and is utilizing the claim of legal malpractice as a 

vehicle to vent his frustration.”) with Kilmer, 146 A.3d at 1279-80 (“[T]he 

Muhammad decision is inapposite to the present action, which focuses not 

on [the attorney’s] professional judgment in negotiating a settlement—

indeed, he was no longer [the client’s] attorney when [the client] challenged 

the Final Accounting and ultimately settled—but on his failure to advise her 

correctly on the law pertaining to her interest in her late husband’s estate.”); 

White v. Kreithen, 644 A.2d 1262, 1265 (Pa. Super. 1994) (determining 

Muhammad rule did not preclude malpractice action where, “after [the client]

discharged [her attorneys], allegedly for failure to properly investigate and 

prepare her case for trial, [the client] was forced, due to her inability to retain 

counsel, to accept the settlement figure proposed by the judge”). 
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insurance coverage under the $2 million dollar Allstate umbrella policy.” Id. 

at 37. He argues that, “[a]fter a settlement[,] a subsequent legal malpractice 

case should not be precluded when negligence led to a diminished settlement.” 

Id. at 37-38.

We reject this argument. This is not a case where a prior attorney’s 

negligence forced the client to agree to an unfavorable settlement, see 

Kilmer, supra; White, supra, or a case where the attorney failed to inform 

the client of well-established principles of law or the effects of a settlement, 

see McMahon, supra; Collas, supra. Instead, Mr. Townsend’s 

negligence/legal malpractice claim appears most analogous to the 

circumstances of Muhammad, where the plaintiffs — who brought a medical 

malpractice action following the death of their son — alleged, inter alia, “a 

failure to sue another hospital and drug manufacturer (arguably negligence 

claims) as the basis for ... fraud.” See Muhammad, 587 A.2d at 1352.7 Our 

Supreme Court dismissed their complaint — which contained causes of action 

for fraudulent concealment, fraudulent misrepresentation, nondisclosure, and 

negligence, among other claims — observing:

It becomes obvious that by allowing suits such as this, which 

merely “second guess” the original attorney’s strategy, we would 

permit a venture into the realm of the chthonic unknown. It is 

impossible to state whether a jury would have awarded 

more damages if a suit had been filed against another 

potential party or under another theory of liability. It is 

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7 The plaintiffs in Muhammad also alleged that their attorneys “were 

negligent and in an attempt to cover up their negligence, convinced [the 

plaintiffs] to agree to the settlement.” Muhammad, 587 A.2d at 1352.
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indeed possible that a smaller verdict would have been reached or 

a defense verdict ultimately would have been rendered. Thus, 

sanctioning these “Monday-morning-quarterback” suits would be 

to permit lawsuits based on speculative harm; something with 

which we cannot agree.

Id. at 1352 n.13 (emphasis added). The Court also warned that, under a 

contrary rule, “[l]awyers would be reluctant to settle a case for fear some 

enterprising attorney representing a disgruntled client will find a way to sue 

them for something that ‘could have been done but was not.’” Id. at 1349. 

As Mr. Townsend’s claim similarly ‘second guesses’ the Defendant-Attorneys’

strategy not to sue Karlie Milstein, and merely speculates that he would have 

recovered more money if she had been a party, we agree with the trial court 

and the Defendant-Attorneys that the Muhammad rule applies and precludes 

Mr. Townsend’s negligence cause of action.

8, 9

 His negligence claim is no more 

than an “expression[] of frustration and dissatisfaction with the amount of the 

2016 settlement.” TCO at 5; see also Defendant-Attorneys’ Brief at 38 

____________________________________________

8 While Mr. Townsend insists that not naming Karlie Milstein “jeopardized 

potential insurance coverage under the $2 million dollar Allstate umbrella 

policy[,]” we note that $200,000 of the settlement funds he received came 

from that umbrella policy. See Mr. Townsend’s Brief at 37; TCO at 2. 

9 We briefly comment on two assertions made by Mr. Townsend in his brief. 

First, citing to McMahon, he conveys that “the analysis of Muhammad is 

limited to the facts of that case.” Mr. Townsend’s Brief at 36. However, as 

mentioned supra, McMahon is a non-precedential decision, and the Court 

specifically split over whether Muhammad should be limited to its facts. 

Second, to the extent Mr. Townsend argues that the Fair Share Act abrogates 

Muhammad, see id. at 37, we deem this argument waived for lack of 

meaningful analysis and development. See, e.g., In re R.D., 44 A.3d 657, 

677 (Pa. Super. 2012) (“[A]rguments in an appellate brief not appropriately 

developed or lacking citation to pertinent authority are waived.”) (citation

omitted). 
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(“Essentially, Mr. Townsend seeks to recover the difference between a 

hypothetically larger settlement or jury award and the $702,800 settlement 

to which Mr. Townsend agreed. This is exactly the type of legal malpractice 

claim prohibited by Muhammad.”). Accordingly, no relief is due on this basis. 

B. 

In Mr. Townsend’s second issue, he asserts that the trial court erred in 

granting summary judgment to Defendant-Attorneys on his fraudulent 

inducement claim, which he correctly recognizes is an exception to the 

Muhammad rule. See Mr. Townsend’s Brief at 19. Indeed, our Supreme 

Court stated in Muhammad that,

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., ... 360 A.2d 200, 206 ([Pa.] 1976).

If the lawyer knowingly commits malpractice, but does not 

disclose the error and convinces the client to settle so as to avoid 

the discovery of such error, then the client’s agreement was 

fraudulently obtained. This fraudulent inducement, however, 

does not alter the settlement agreement between plaintiff and 

defendant, since it is not the opposition who has committed the 

fraud, but the plaintiff’s own lawyer. As such, the settlement 

agreement must be honored.

So that the plaintiff who has been defrauded may have redress, 

however, we would permit him to proceed under a theory of fraud 

against the attorney who represented him in the original action. 

This holding would reflect the law as it has long existed in the 

Commonwealth; “[i]t is scarcely necessary at this late 

jurisprudential hour in the day of stare decisis to cite cases to 

certify that fraud taints with illegality and invalidity anything its 
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evil shadow darkens.” Iacoponi v. Plisko, ... 195 A.2d 362, 365 

([Pa.] 1963).

Muhammad, 587 A.2d at 1351 (emphasis in original; footnote omitted). 

Further, with respect to fraudulent inducement, this Court has 

articulated that:

Fraudulent conduct is defined as a misrepresentation fraudulently 

uttered with the intent to induce the action undertaken in reliance 

upon it to the damage of the victim. A person asserting fraud, 

therefore, must establish: (1) a misrepresentation, (2) scienter on 

behalf of the misrepresenter, (3) an intention by the maker that 

the recipient will be induced to act, (4) justifiable reliance by the 

recipient upon the misrepresentation; and (5) damage to the 

recipient.

Banks, 700 A.2d at 1333 (internal quotation marks and citations omitted). 

“[A] party alleging fraud has the burden of proving the same by clear and 

convincing evidence.” Moser v. DeSetta, 589 A.2d 679, 682 (Pa. 1991). 

This Court has explained:

“Clear and convincing evidence” requires:

that the witnesses must be found to be credible; that the 

facts to which they testify are distinctly remembered and 

the details thereof narrated exactly and in due order; and 

that their testimony is so clear, direct, weighty, and 

convincing as to enable the trier of fact to come to a clear 

conviction, without hesitancy, of the truth of the precise 

facts in issue. It is not necessary that the evidence be 

uncontradicted provided it carries a clear conviction to the 

mind or carries a clear conviction of its truth.

In re Interest of J.M., 166 A.3d 408, 423 (Pa. Super. 2017) (quoting In re 

Novosielski, 992 A.2d 89, 107 (Pa. 2010)); see also Delahanty v. First 

Pennsylvania Bank, N.A., 464 A.2d 1243, 1252-53 (Pa. Super. 1983) 

(same).
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Mr. Townsend agrees that fraud must be proven by clear and convincing 

evidence, and contends that “the allegations set forth in [his] Complaint and 

Affidavit clearly set[] forth very specific evidence concerning fraudulent 

inducement and if accepted by a jury, meet[] the required standard of clear, 

precise and convincing evidence.” See Mr. Townsend’s Brief at 24. 

Specifically, he states:

Mr. Townsend, in his Complaint and in his Affidavit, has set forth 

the following: (a) none of the attorneys at Spear Greenfield, et al

ever informed me that they made a strategic decision not to file a 

lawsuit against Karlie Milstein or name her as a defendant with 

respect to my automobile accident case; (b) none of the attorneys 

at Spear Greenfield, et al ever informed me that there was a viable 

negligent entrustment cause of action against Karlie Milstein as a 

result of my automobile accident; (c) none of the attorneys at 

Spear Greenfield, et al ever informed that there were any issues 

with respect to insurance coverage in regard to my automobile 

accident case; (d) none of the attorneys at Spear Greenfield, et al

ever told me that the failure to name Karlie Milstein as a defendant 

in my automobile accident case jeopardized insurance availability 

with respect to the $2 million umbrella insurance policy with 

Allstate; (e) [Mr.] Townsend relied on the advice of the attorneys 

at Spear Greenfield which did not include any of the material and 

relevant information identified above when entering into the 

settlement agreement.

Id. at 20-21 (citations omitted). 

At Mr. Townsend’s deposition, however, his testimony revealed that he 

remembered very little about the underlying case and the communications he 

had with Defendant-Attorneys. In fact, he admitted that he could not 

remember the specific substance of any of the communications he had had 

with anyone at Spear, Greenfield and Richman, P.C., during the underlying 
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case. For instance, at his deposition, Mr. Townsend testified to the following

about his representation in the underlying lawsuit:

[Defendant-Attorneys’ Counsel:] I’m just trying to figure out who 

you communicated with? 

[Mr. Townsend:] It was so far back. I don’t remember who I 

talked to. I talked to numerous people, but it was -- I knew it was 

a gentleman I talked to. And if they are not there, you leave a 

voice message. And they usually get back to you probably within 

two, three weeks after you leave a voice message. 

[Defendant-Attorneys’ Counsel:] Without -- I have some of the 

documents that I am going to review with you, but I am just trying 

to get a general sense of what you remember about [the] Spear, 

Greenfield firm representing you in ... the underlying case. 

Over the course of the whole lawsuit, the underlying case, 

how many total people would you say that you communicated with 

at the Spear, Greenfield firm?

[Mr. Townsend:] I spoke with Mr. Spear. I spoke to Mr. Richman, 

the gentleman on the phone, and then there was a lady in 

accounts, or an accounting lady, or someone. 

***

[Defendant-Attorneys’ Counsel:] Okay. And over the course of 

the whole underlying lawsuit, could you tell us about how many 

times you met with anyone in person from Spear, Greenfield? 

[Mr. Townsend:] That, I can’t remember. 

[Defendant-Attorneys’ Counsel:] What do you remember about 

those communications? 

[Mr. Townsend:] It’s so long ago. I can barely remember 

anything. 

[Defendant-Attorneys’ Counsel:] Okay. How many times did you 

communicate directly with Rand Spear? 

[Mr. Townsend:] That, I’m not sure. 

[Defendant-Attorneys’ Counsel:] Do you remember when those 

communications occurred? 
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[Mr. Townsend:] No, I don’t. 

[Defendant-Attorneys’ Counsel:] Do you remember where they 

occurred? 

[Mr. Townsend:] Probably, at his office. 

[Defendant-Attorneys’ Counsel:] Ok. And do you remember the 

substance of those communications? 

[Mr. Townsend:] No. 

[Defendant-Attorneys’ Counsel:] The same question for Marc 

Greenfield; do you remember where your communications 

occurred with Marc?

[Mr. Townsend:] At the office. It was probably the same time that 

I was talking to Mr. Spear. 

[Defendant-Attorneys’ Counsel:] Okay. Do you know if it was 

more than one time that you met with Marc in person? 

[Mr. Townsend:] I believe so. 

[Defendant-Attorneys’ Counsel:] Okay. And did you meet in 

person with anyone else from Spear, Greenfield that you can 

recall, other than Rand Spear, Marc Greenfield, and the gentleman 

who came to the hospital?

[Mr. Townsend:] That lady in accounts. I don’t remember her 

name. ... I only met her through Mr. Spear. 

[Defendant-Attorneys’ Counsel:] And do you remember the 

substance of any of the communication that you had with Marc 

Greenfield in relation to the underlying case? 

[Mr. Townsend:] No. 

[Defendant-Attorneys’ Counsel:] Can you remember the 

substance of the communication that you had with anyone from 

Spear, Greenfield in relation to the underlying lawsuit?

[Mr. Townsend:] I basically talked on the phone to the gentleman 

on the phone, who usually didn’t have any answers for me. 

[Defendant-Attorneys’ Counsel:] And you don’t remember what 

his name was?

[Mr. Townsend:] No. 
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See Exhibit B to TCO (Deposition of Mr. Townsend, 10/10/18) at 32-35. 

Further, Mr. Townsend testified:

[Defendant-Attorneys’ Counsel:] Okay. At this point in time, 

when the Complaint was filed in December of 2012, were you 

aware that there was a passenger in the vehicle that hit you?

[Mr. Townsend:] I was told. 

[Defendant-Attorneys’ Counsel:] And who told you that? 

[Mr. Townsend:] I believe – either Spear or Richman, one of those 

two gentlemen. 

[Defendant-Attorneys’ Counsel:] And did you ask them why the 

passenger in the vehicle wasn’t being sued in the underlying case?

[Mr. Townsend:] That, I don’t remember. 

Id. at 43-44. 

In addition, Mr. Townsend did not remember if it was ever 

communicated to him in 2012 that there were differing stories about how Mr. 

Kemp got the keys to be driving the vehicle at the time of the accident, id. at 

49-50, nor did he remember if it was communicated to him in 2013 that Mr. 

Kemp was not a driver with permission to use the vehicle, id. at 51. Mr. 

Townsend likewise could not recall if Defendant-Attorneys ever communicated 

to him that Karlie Milstein’s criminal defense attorney proposed that, if Mr. 

Townsend would write a letter stating that he was not opposed to ARD for Ms. 

Milstein in her criminal case, she would confirm that Mr. Kemp was a 

permissive user of the vehicle and that its brakes were working at the time of 

the accident. See id. at 67-69.

10

 Similarly, Mr. Townsend could not 

____________________________________________

10 In eventually signing an affidavit to that effect, Mr. Townsend said that he 

signed it voluntarily, but did not read it and understand it. Id. at 78-82. 
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remember any communications that he specifically had with DefendantAttorneys at the time Allstate’s counsel offered to go to mediation, other than 

that he had to be there for it, id. at 92-93, nor did he remember anything said 

to him by Marc Greenfield during a private meeting between them before the 

mediation started, id. at 95-96. 

Ultimately, Mr. Townsend conceded: 

[Defendant-Attorneys’ Counsel:] Okay. I know that you verified 

signing all the documents that we reviewed, and your attorneys 

did produce some letters, whether or not you remember receiving 

them or not. You’ve answered those questions.

But the substance of any of the actual communications that 

you had with anyone at Spear, Greenfield during the whole case, 

you’re saying you can’t remember the specific substance of any of 

the communications; is that accurate? 

[Mr. Townsend:] That is because it’s been -- it’s been a while. 

[Defendant-Attorneys’ Counsel:] Right. So, that is accurate? 

[Mr. Townsend:] I guess, yes.

Id. at 152. 

Given the lack of recall by Mr. Townsend, we agree with the trial court 

that “[t]he cold transcript of Mr. Townsend’s deposition commands judgment 

in favor of all Defendant-Attorneys. [Mr.] Townsend’s testimony relaying the 

circumstances of the legal representation and settlement does not meet any 

threshold for ‘clear, direct, weighty and convincing’ proof.” TCO at 7. Because 

Mr. Townsend is unable to remember key facts regarding DefendantAttorneys’ representation, he has not adduced sufficient evidence to support 
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his fraudulent inducement claim.11 Accordingly, the trial court properly 

granted summary judgment in favor of Defendant-Attorneys on this basis.12 

Order affirmed. 

____________________________________________

11 To the extent Mr. Townsend claims that, pursuant to Borough of NantyGlo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932), “a moving 

party cannot rely upon the oral testimony of witnesses as support for a Motion 

for Summary Judgment[,]” see Mr. Townsend’s Brief at 25, we deem this 

claim waived for lack of development. In re R.D., supra. Notwithstanding, 

this Court has explained that:

Nanty–Glo precludes summary judgment where the moving 

party relies solely upon testimonial affidavits and depositions of 

his witnesses to resolve material issues of fact. However, if 

there are no material issues of fact, or if the non-moving party 

has failed, in the first instance, to allege facts sufficient to make 

out a prima facie case, then summary judgment may be granted 

properly, even if the moving party has only set forth the pleadings 

and depositions of his witnesses in support thereof. ... Error only 

occurs if the moving party, in relying upon the testimonial 

affidavits of his witnesses, is attempting to resolve a 

material issue of fact, or more importantly, is attempting 

to demonstrate the lack of any material issues of fact by 

asserting that the testimony of his witnesses is 

uncontradicted.

Dudley v. USX Corp., 606 A.2d 916, 920 (Pa. Super. 1992) (footnote 

omitted; emphasis added). Here, even if Mr. Townsend had not waived this 

argument, Nanty-Glo would not preclude the entry of summary judgment in 

favor of Defendant-Attorneys because Mr. Townsend’s own testimony 

demonstrates that he does not remember critical aspects of DefendantAttorneys’ representation, which renders him unable to prove fraudulent 

inducement by clear, precise, and convincing evidence. 

12 Given our disposition, we need not address Mr. Townsend’s third issue. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/20