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

Appellant

v.
EUGENE P. TINARI, ESQUIRE AND LAW OFFICES OF EUGENE P. TINARI : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2596 EDA 2019
Appeal from the Order Entered July 16, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): September Term, 2018 No. 00120

BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J. * MEMORANDUM BY COLINS, J.: FILED APRIL 20, 2020 This matter is an appeal filed by plaintiff Francis Carafa ( Plaintiff) from an order of the Court of Common Pleas of Philadelphia County (trial court) sustaining preliminary objections in the nature of a demurrer filed by the defendants, Eugene P. Tinari, Esquire (Tinari) and his law firm ( collectively, Defendants), and dismissing Plaintiff’s legal malpractice action with prejudice. For the reasons set forth below, we affirm. The actio n arises out of Tinari ’ s representation of Plaintiff in 2016 at the equitable distribution hearing s in Plaintiff’s divorce from his wife (the Divorce Action)

. Complaint ¶¶5, 12, 15

- 1 7

. Plaintiff and his wife were married in 1974 and separated in 2009. Divorce Action Equitable Distribution Order at

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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2. Tinari was the 11th of at least 12 different attorney s that Plaintiff retained to represent him in th e Divorce Action , which lasted fro m 2009 to 2017 , and represented Plaintiff for less than three months . Divorce Action Docket Entries at 1, 4

- 5, 8, 10, 13, 17, 19, 21 , 23

- 24, 26 , 31 ; Complaint ¶¶17, 71; Divorce Action Equitable Distribution Order at 1

. Plaintiff commenced this action by praecipe for a writ of summons on September 4, 2018 and filed his complaint on December 31, 2018. Plaintiff specifically identified in his complaint the Divorce Action as the matter in which Tinari represented him

. Complaint ¶5. Plaintiff a verr ed that Tinari neg ligently failed at the equitable distribution hearings in the Divorce Action to call witnesses and present evidence on the valu e of real property and vehicles , that he failed to present evidence concerning various bank accounts and IRAs , that he fail ed to show that Plaintiff’s police pension s and benefits w ere disability

- related , and that he failed to introduce evidence that Plaintiff was unable to work

. Id. ¶¶ 25

- 31, 41, 4 4 , 48

- 65, 76

- 99, 111

- 28 , 14 1

- 56, 158

- 78, 183

- 87, 189

- 98

. Plaintiff averred that those acts and omissions resulted
in unfavorable valuations of the marital real property and vehicles , inaccurate determinations of marital financial assets, inclusion of Plaintiff’s police pensions and benefits as marital property , and overvaluation of Plaintiff’s
income in the equitable distribution order in the Divorce Action

. Id. ¶¶ 65, 76,J

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- 3

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84, 86, 88, 90, 115, 117, 158, 165, 177, 187 , 193, 195, 2 05

- 06

. 1 Plaintiff averred in his complaint that he fired Tinari as his counsel at the end of the equitable distribution hearings and undertook to represent himself. Id. ¶71. Defendants filed preliminary objections to the complaint on April 2, 2019. Defendants ’ preliminary objections included a demurrer asserting that Plaintiff could not prove his claims of legal malpractice given the record in the equitable distribution proceedings in the Divorce Action . Defendants’ Preliminary Objections ¶¶1

- 53. In support of that demurrer, Defendants attached to their preliminary objections copies of the docket in the Divorce Action , the equitable distribution order on which Plaintiff based his legal malpractice claim, the memorandum opinion of this Court affirming the equita ble distribution order, and transcripts and exhibi ts from the equitable distribution hearing s . I d. Exs. B

- H

. Plaintiff, in response, filed preliminary objections to Defendants’ preliminary objections asserting that Defendants ’ submission of documents fro m the divorce action was improper. Plaintiff did not dispute the authenticity of any of the documents submitted by Defendants as exhibits to their preliminary objections, but contended that documents from the underlying action and proceedings on which the malpractice claim was based c ould not be considered on preliminary objections and that only the averments in

_________________ __________ ______ ____ _______ 1 Paragraphs 205 and 206 of Plaintiff’s complain t are numbered 105 and 106, but follow paragraph 204. Complaint at 20

- 22.J

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Plaintiff’s complaint could be considered. Plaintiff’s Preliminary Objections to Defendants’ Preliminary Objections at 3

- 6. In an order en tered July 16, 2019, the trial court sustained Defendant’s preliminary objections and dismissed Plaintiff’s complaint with prejudice for failure to state a claim upon which relief may be granted

. Trial Court Order, 7/16/19. Plaintiff timely appealed on A ugust 13, 2019. In his Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal, Plaintiff asserted that the trial court erred in dismiss ing the action because the complaint contained sufficient averments to set forth a cause of action for l egal malpractice and that documents from the equitable distribution proceedings in the Divorce Action could not be considered on preliminary objections. Plaintiff’s Statement of Matters Complained of on Appeal ¶¶2

- 4. Plaintiff did not assert in his 1925(b) statement that the documents from equitable distribution proceedings submitted by Defendants were not authentic, that he could state a cause of action for legal malpractice if those documents are considered, or that the trial court erred in not granting him leave to amend the complaint. Plaintiff states as the sole issue in this appeal: Whether the court below erred in granting the Appellees ’ Preliminary Objections and dismissing the Appellants ’ [ sic ] Complaint with prejudice? Appellant’ s Brief at 7

. The only error that Plaintiff a rgue s in his brief is that the trial court failed to accept the averments of the complaint as true andJ

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sufficient without regard to the record in the underlying D ivorce Action out of which hi s legal malpractice claim s arose. On an appeal from an order sustaining preliminary objections in the nature of a demurrer, our standard of review is de novo and our scope of review is plenary. Hospital & Healthsystem Association of Pennsylvania v. Department of Public We lfare , 888 A.2d 601, 607 n.12 (Pa. 2005) ; Frank v. TeWinkle , 45 A.3d 434, 43 8 (Pa. Super. 2012 ). This Court may affirm a trial court’s decision sustaining a demurrer only whe re it is clear that the plaintiff is unable to prove facts legally sufficient to establish a right to relief. Mazur v. Trinity Area School District, 961 A.2d 96, 101 (Pa. 2008) ; Frank , 45 A.3d at 43 8. In making that determination , th is C ourt must accept as true all well

- pleaded material av erments of fact in the complaint and every inference that is fairly deducible from those facts

. Hudson v. Pennsylvania Board of Probation and Parole , 204 A.3d 392 , 395 (Pa. 2019); Frank , 45 A.3d at 43 8. The Court, however, is not required to accept as true conclusions of law, unwarranted inferences , or argumentative allegations. Hudson , 204 A.3d at 395; Conrad v. City of Pittsburgh , 218 A.2d 906 , 907 n.3 (Pa. 1966) ; In re Estate of Luongo , 823 A.2d 942 , 966

- 68 (Pa. Super. 2003)

. Contrary to Plaintiff’s contentions, these principles do not require the trial court and this Court to consider the averments of the plaintiff’s complaint in isolation where plaintiff’s claim is based on a prior litigation or disregard the record in the un derlying case. Where a complaint avers a cause of actionJ

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arising out of a prior case and references that underlying case, the record in the underlying case may properly be considered in determining whether the plaintiff can prove the cause of action that he asserts, even though the plaintiff has not attached such documents to his complaint. Perelman v. Perelman , 125 A.3d 1259 , 1266 n.3 (2015); Morley v. Farnese , 178 A.3d 910, 91 3 n.1 (Pa. Cmwlth. 201 8 )

. Moreover, where a claim asserted by the plaintiff i s based on written documents, the defendant may properly submit th os e documents with its preliminary objections and the court may consider those documents in ruling on a demurrer. Conrad , 218 A.2d at 907

- 08 n.3 ; Regal Indus trial Corp. v. Crum & Forster, I nc. , 890 A.2d 395, 39 8

- 99 (Pa. Super. 2005) ; Satchell v. Insurance Placement Facility of Pennsylvania , 361 A.2d 375, 377

- 78 (Pa. Super. 1976)

. If a claim is based on a document, it is the document, not averments in the plaintiff’s complaint characterizing it, that determine whether the plaintiff has stated a cause of action , and averments that conflict with the document need not be accepted as t rue . Jenkins v. County of Schuylkill , 658 A.2d 380, 383 (Pa. Super. 1995 ); Davis v. Davis , 619 A.2d 743, 746

- 47 ( Pa. Super. 1993) ; Framlau Corp. v. Delaware County , 299 A.2d 335, 338 (Pa. Super. 1972)

. Here, Plaintiff’s complaint was based on the equita ble distribution proceedings in the Divorce Action and the resulting equitable distribution order. It was therefore proper for Defendants to attach the equitable distribution order and other documents from the record in the Divorce ActionJ

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and those documents may be considered in determining whether Plaintiff stated a cause of action upon which relief may be granted

. Perelman , 125 A.3d at 1266 n.3; Regal Indus trial Corp. , 890 A.2d at 39 8

- 99. To prove a cause of action for legal malpractice, the plaintiff must prove 1) employment of the attorney or an other basis on which the attorney owed him a duty; 2) the failure by the attorney to exercise ordinary skill and knowledge; and 3) that this negligence was the proximate cause of damage to the pl aintiff. Myers v. Robert Lewis Seigle, P.C

. , 751 A.2d 1182 , 1184 (Pa. Super. 2000). The record from the equitable distribution proceedings in the Divorce Action submitted by Defendants with their preliminary objections precludes Plaintiff from proving two of these elements, negligence and damage caused by the alleged negligence

. The equitable distribution order divided Plaintiff’s and his wife’s marital property equally. Divorce Action Equitable Distribution Order at 15. Plaintiff’s claim that Tinari did not present evidence concerning the marital real estate , vehicles, and financial assets is contradicted by the record. The equitable distribution order shows that Tinari did in fact introduce appraisals and call
witnesse s who testified to the value of the properties and vehicles and that th is evidence was considered by the court in its valuation s . Id. at 3

- 4, 9

- 10. The equitable distribution order also shows that evidence was introduced concerning over 30 different bank accounts and IRAs owned by Plaintiff and his wife

. Id. at 6

- 8, 11

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Plaintiff’s claim that Tinari was negligent in failing to persuade the court his disability pensions and benefits were not marital property is legally invalid. The Divorce Code does n ot exclude disability payments by Pennsylvania employers from marital property. Drake v. Drake , 725 A.2d 717 , 723

- 2 6 (Pa. 1999) . Such d isability benefits are marital property if the right to payment accrue d during the marriage

. Id. at 723

- 27 ; Yuhas v. Yuhas , 79 A.3d 700 , 705

- 06 (Pa. Super. 2013) ( en banc ) (when right to benefit accrued determines whether disability payment is marital property, post

- separation disability payments are non

- marital if right to pay ment requires post
separation recertificatio n of continued disability)

. The record in the equitable distribution hearings show s that Plaintiff’s disability pensions and benefits permanently accrued in 1996 , during the marriage, and that Plaintiff is entitled to receive payments regardless of whether he is disabled. Defendants’ Preliminary Objections Ex. E Disability Retirement Agreement at 1, 2 ¶ 2. Failure of an attorney to litigate a legally meritless position as a matter of law

can not support a legal malpractice claim

. McCartney v. Dunn & Conner, Inc. , 563 A.2d 525 , 528

- 30 (Pa. Super. 1989)

. With respect to Plaintiff’s claim that Tinari was negligent in failing to introduce evidence that Plaintiff was unable to work, Plaintiff testified in the equitable distribution proceedings that he was employed and the court found that this actual employment constituted his highest earnings capacity. Divorce Action Equitable Distribution Order at 1

- 2; N.T. Divorce ActionJ

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Equitable Distribution Hearings, 9/20/16, at 202. No introduction of additional

ev idence concerning Plaintiff’s ability to work could therefore have affected the equitable distribution order. Because Plaintiff’s legal malpractice claim s w ere based the equitable distribution proceedings in his Divorce Action and the record in those
pr oceedings demonstrated that Plaintiff could not prove the malpractice claims that he asserted, the trial court did not err in sustaining Defendants’ demurrer and dismissing Plaintiff’s complaint. Accordingly, we affirm. Order affirmed

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/20/20