J-S64028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MATTHEW I. KURZWEG, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. HENRY MILLER, Appellee No. 630 WDA 2014

Appeal from the Order October 7, 2013 In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD-04-411

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J. MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 7, 2014 Matthew L. Kurzweg appeals from the order entered O ctober 7, 2013, overruling preliminary objections raised against He nry Miller’s amended complaint. 1 We reverse. Appellee Henry Miller and Appellant Matthew Kurzweg are Pittsburghbased attorneys. A dispute between them arose when Appellee claimed Appellant owed him a contingent fee earned for prio r legal work.

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1 This Court granted Kurzweg’s petition for review b rought pursuant to Pa.R.A.P. 1311(b). See Order of Court, No. 137 WDM 2013 (Apr. 22, 2014). Thereafter, the case was transferred to the current docket.J-S64028-14

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In 1997, Janice Miller hired Appellee to represent her in a potential medical malpractice case. 2 Appellee initiated the case on her behalf by writ of summons and, thereafter, filed a complaint in De cember 1999. In January 2002, Ms. Miller discharged Appellee, alleg edly the result of machinations orchestrated by Ms. Miller, Appellant, and his secretary, Kathie McBride. Appellant entered his appearance on behal f of Ms. Miller in February 2002. In September 2003, Appellant settle d the case on Ms. Miller’s behalf and subsequently collected a contin gent fee. Appellee demanded payment of some portion of the fee at vari ous times, but Appellant did not acquiesce. Appellee commenced the current matter by writ of su mmons in January 2004. Eventually in 2012, Appellee filed a complaint and, thereafter, an amended complaint, pleading six coun ts against Ms. Miller, Appellant, and Ms. McBride, and seeking the entire contingent fee from the malpractice case. In July 2013, the trial court di smissed for non pros five of the six counts pleaded. 3 The only remaining claim alleged unjust enrichment against Appellant.

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2 It does not appear from the record that Henry Mill er and Janice Miller are related.

3 On August 13, 2013, Appellee timely filed a motion to reconsider entry of non pros , which the trial court denied on September 9, 2013 . In light of our order reversing the dismissal of Appellant’s prelim inary objections, and the (Footnote Continued Next Page)J-S64028-14

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Appellant filed preliminary objections in the natur e of a demurrer. See Pa.R.C.P. 1028(a)(4). The trial court denied those objections. Appellant petitioned the court to certify that its order deny ing Appellant’s preliminary objections involved a controlling question of law a s to which there is a substantial ground for difference of opinion, but t he trial court denied his petition. Nevertheless, this Court granted Appella nt’s petition for review and issued a stay pending this appeal. See supra , n.1. Appellant raises the following question: Whether the Court of Common Pleas of Allegheny Coun ty erred in overruling Appellants’s [ sic ] Preliminary Objections, pursuant to Pa.R.C.P. 1028(a)(4), to a discharged attorney’s claim of unjust enrichment against a successor attorney who replaced the discharged attorney and who collected a contingent legal fee as a result of settlement of the client’s case. Appellant’s Brief, at 3. We apply the following standard: [O]ur standard of review of an order of the trial c ourt overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When conside ring the appropriateness of a ruling on preliminary objectio ns, the appellate court must apply the same standard as the trial court. Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering prel iminary objections, all material facts set forth in the cha llenged pleadings are admitted as true, as well as all inferences rea sonably deducible therefrom. Preliminary objections which s eek the dismissal of a cause of action should be sustained only in cases (Footnote Continued) _______________________ lifting of the stay pending appeal, Appellee may no w appeal the denial of his motion for reconsideration of entry of non pros

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in which it is clear and free from doubt that the p leader will be unable to prove facts legally sufficient to establi sh the right to relief. If any doubt exists as to whether a demurre r should be sustained, it should be resolved in favor of overru ling the preliminary objections.

Richmond v. McHale , 35 A.3d 779, 783 (Pa. Super. 2012) (quoting Feingold v. Hendrzak , 15 A.3d 937, 941 (Pa. Super. 2011)). According to Appellant, Pennsylvania does not recog nize a claim in unjust enrichment, or quantum meruit , brought by a former attorney against a subsequent attorney, citing in support Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middle man, PC , 95 A.3d 893 (Pa. Super. 2014) ( Meyer Darragh ). We agree.

In Meyer Darragh , an attorney representing an estate in a wrongful death action left his firm to join another, taking with him the wrongful death litigation file. Meyer Darragh , 95 A.3d at 895. Thereafter, the attorney’s new firm began to represent the estate. Id. The case settled, and a contingency fee was paid to the new firm. Id. The attorney’s original firm initiated litigation, claiming quantum meruit against both the estate and the new firm, and the trial court entered a verdict in its favor against both

defendants. Id. at 896. On appeal, a panel of this Court stated: It is well-settled that a client may terminate his relation with an attorney at any time, notwithstanding a contract fo r fees, but if he does so, thus making the performance of the cont ract impossible, the attorney is not deprived of his rig ht to recover on a quantum meruit

a proper amount for the services he has rendered. Quantum meruit is an equitable remedy. It is definedJ-S64028-14

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as ‘as much as deserved’ and measures compensation under an implied contract to pay compensation as reasonable value of services rendered. Quantum meruit and ‘reasonable value of services’ are virtually interchangeable phrases. There is no Pennsylvania appellate court case holdi ng that an attorney who initially represents a client and is d ismissed can maintain a quantum meruit action against the attorn ey who ultimately settles the case. Rather, the initial a ttorney has to proceed against the client.

Id. (emphasis added) (citations omitted; internal quota tion marks and other punctuation omitted); see also Mager v. Bultena , 797 A.2d 948 (Pa. Super. 2002), appeal denied , 814 A.2d 678 (Pa. 2002); Fowkes v.

Shoemaker , 661 A.2d 877 (Pa. Super. 1995), appeal denied , 674 A.2d 1072 (Pa. 1996); Styer v. Hugo , 619 A.2d 347 (Pa. Super. 1993), affirmed , 637 A.2d 276 (Pa. 1994). The panel concluded, “Unt il our [S]upreme [C]ourt holds otherwise, we will not recognize a cl aim for quantum meruit by a former attorney against a subsequent attorney.” Meyer Darragh , 95 A.3d at 898. The panel then vacated the judgment e ntered. Id. at 895. Based upon this authority, we discern no legal basi s for Appellee’s claim. Moreover, Appellee’s arguments acknowledge this to be so. See,

e.g. , Appellee’s Brief, at 7 (suggesting that the curre nt state of the law in Pennsylvania is “neither logical nor fair”); at 8 ( “The court should adopt a restitutionary approach to this type of case and al low a predecessor attorney in a contingent fee case to proceed against his suc cessor.”) (emphasis added); at 17 (citing in support, Ruby v. Abington Mem’l Hosp. , 50 A.3d 128 (Pa. Super. 2012), a case in which this Court a nalyzed an employmentJ-S64028-14

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contract dispute , not a quantum meruit action, between an attorney and his former firm, see Ruby , 50 A.3d at 130). Accordingly, we reverse the ord er of the trial court.

Order reversed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/7/2014