J-A02036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARY HERMAN IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DONALD P. RUSSO, ESQ. D/B/A LAW 

OFFICES OF DONALD RUSSO

Appellee No. 1362 EDA 2014

Appeal from the Order Dated April 21, 2014

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): 2011-C-912

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 23, 2015

Appellant, Mary Herman, appeals from the order granting summary 

judgment to Donald P. Russo, Esquire, on her claim for legal malpractice. 

After careful review, we affirm.1

Herman was employed by Carbon County Jury Selection Commission 

as a full-time Jury Clerk for eighteen years. In late 2003, one member of 

____________________________________________

1 Herman also has filed an application for leave to supplement the 

reproduced record with a transcript from the argument on summary 

judgment in the trial court. We deny the application for two reasons. First, 

Herman improperly seeks to supplement the reproduced record, but not the 

certified record. See Roth Cash Register Company, Inc. v. Micro 

Systems, Inc., 868 A.2d 1222, 1223 (Pa. Super. 2005) (only documents in 

the certified record are considered on appeal). Second, Herman fails to 

identify what relevance the argument on summary judgment would have on 

this appeal.
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the Commission, Carbon County President Judge Richard Webb, proposed 

computerizing the office, eliminating the full-time Jury Clerk position, and 

creating a new part-time position, to be filled by Herman. The other two 

members of the Commission voted against Judge Webb’s proposal.

Undeterred, Judge Webb brought his proposal to the Carbon County 

Salary Board. Herman sent a letter to the Carbon County Commissioners, 

advocating that they vote against Judge Webb’s proposal. In a letter to one 

Commissioner, Herman revealed her belief that Judge Webb was retaliating 

against her due to her association and support of Jury Commissioners who 

had filed a complaint to the Judicial Conduct Board against Judge Webb. The 

Carbon County Commissioners ultimately adopted Judge Webb’s proposal, 

and Herman’s hours and hourly wages were reduced.

Herman alleges that she was subsequently told by Judge Webb that 

her job was changed in retaliation for the Jury Commissioners’ actions. 

Herman sought legal advice on her desire to file a complaint against Carbon 

County due to the employment action. The first attorney she spoke to 

advised against including Judge Webb as a defendant in the complaint.

Herman then sought the advice of Appellee Attorney Russo. Attorney 

Russo also advised against including Judge Webb as a defendant, opining 

that it would weaken her case before the ultimate trier of fact. Herman 

accepted this advice, as it comported with the advice she had previously 

been given.
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In 2004, Attorney Russo filed a complaint in the United States District 

Court for the Middle District of Pennsylvania on behalf of Herman against the 

Carbon County Commissioners who had approved the change in her 

employment. Of relevance to the current case, Herman asserted that the 

Commissioners had improperly retaliated against her in violation of her 

rights under the First Amendment to the United States Constitution. The 

Middle District initially dismissed the complaint.

After the United States Court of Appeals for the Third Circuit opined 

that Herman’s complaint was insufficiently specific, the case was remanded 

to the Middle District to allow for an amended pleading. In late 2007, 

Attorney Russo filed a second amended complaint. In 2009, the Middle 

District granted the defendants’ motion for summary judgment, concluding 

in relevant part that Herman had failed to establish that her support of the 

Jury Commissioners had been a substantial factor in the County 

Commissioners’ decision to change her job.

Directly relevant to the present matter, the Middle District penned the 

following passage in granting summary judgment.

In her deposition, [Herman] contended that “Judge Webb” acted 

to retaliate against her as part of his dispute with the Jury 

Commissioners when he changed her job.

[Herman] has therefore produced evidence by which a jury could 

conclude that Judge Webb sought to reduce her hours in 

retaliation for her support of the jury commissioners in their 

dispute with him. Judge Webb, however, is not a defendant in 

this case. The relevant question, therefore, is not whether 

[Herman’s] speech was a substantial factor in Judge Webb’s 
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decision to change her hours, but whether [Herman’s] speech 

was a substantial factor in the [Carbon County Commissioners’] 

decision to adopt Judge Webb’s recommendation.

Herman v. County of Carbon, 2009 WL 1259083 (M.D. Pa., May 5, 2009) 

(unpublished memorandum).

Herman subsequently filed the instant action, alleging professional 

malpractice, breach of contract, and breach of fiduciary duty against 

Attorney Russo. On March 13, 2013, the trial court granted partial summary 

judgment to Russo, dismissing all claims except those based on Attorney 

Russo’s failure to name Judge Webb as a defendant in the underlying suit. 

For those claims, the trial court permitted further discovery, noting that its 

case management order on the issue was arguably ambiguous.

Herman subsequently filed an expert report in support of her 

contention that Attorney Russo had committed professional negligence in 

failing to name Judge Webb as a defendant. Attorney Russo again moved 

for summary judgment, and this time, the trial court granted the motion, 

concluding that the record before it could not support Herman’s claims. This 

timely appeal followed.

On appeal, Herman raises two issues for our review.

(1) By misapplying the summary judgment standard (i.e., 

omitting material facts, testing remaining facts in the light least 

favorable to [Herman], and making incorrect legal conclusions 

therefrom), did the trial court err when it entered summary 

judgment against [Herman] in her legal malpractice action 

secondary to [Attorney Russo’s] failure to join an indispensable 

party in the underlying First Amendment retaliation federal 

action?
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...

(2) Does the coordinate jurisdiction rule/law of the 

case/estoppel doctrines preclude the entry of summary 

judgment following non-material discovery events when 

summary judgment had already been pertinently denied by a 

different judge within the same trial court on the same material 

facts?

Appellant’s Brief, at 9.

We will address these issues in reverse order. First, Herman argues 

that the trial court’s grant of summary judgment on the claim based upon 

the failure to name Judge Webb as a defendant in the underlying matter was 

barred by the coordinate jurisdiction rule. In relevant part, the coordinate 

jurisdiction rule prevents a Common Pleas Court judge from overruling a

different judge of the same court’s resolution of a legal question in a given 

case. See Zane v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003). The 

coordinate jurisdiction rule is based upon several policy considerations. 

First, economy of judicial resources is preserved through fostering the 

finality of pre-trial decisions. See id. Second, protection of the settled 

expectations of the parties is furthered by application of the rule. See id. 

Third, the rule serves to bring finality to litigation, preventing endless rehashing of disputed points of law before trial. See id.

Herman contends that the initial, partial grant of summary judgment, 

which excluded the issue based upon Judge Webb’s involvement, acted as a 

final pre-trial resolution on the legal issue involved. We note, however, that 
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Herman did not raise this issue before the trial court. It is therefore waived 

for purposes of appeal. See Pa.R.A.P. Rule 302(a).

Herman contends that “this Court has held that a trial court’s opining

on an otherwise never before briefed issue constitutes a preservation of that 

issue for appeal when raised by Appellant in her Concise Statement of 

Issues.” Appellant’s Reply Brief, at 7 (citation omitted). To support this 

proposition, Herman cites to a case where the Pennsylvania Supreme Court 

reviewed a capital conviction. In that opinion, the Supreme Court addressed 

waiver of an issue that was not preserved in the record, as the transcript of 

the relevant time was unavailable. Ultimately, the Supreme Court found 

that the trial court had conceded, in the absence of an official record, that 

the issue had been preserved, see Commonwealth v. Sanchez, 82 A.3d 

943, 978-979 (Pa. 2013). We find Sanchez distinguishable, as there is no 

allegation that the relevant record is unavailable, and there is therefore no 

implication that the trial court has conceded that the issue was preserved.

Herman also cites to two Superior Court opinions that we are unable to 

construe to support Herman’s position, see Commonwealth v. Lane, 81 

A.3d 974, 978 (Pa. Super. 2013) and Commonwealth v. Rodriguez, 81 

A.3d 103, n.3 (Pa. Super. 2013). In contrast, we observe that Rule 302 has 

been consistently applied by the Supreme Court of Pennsylvania to require 

that issues be raised in front of the trial court before an appeal has been 

filed. See, e.g., Scalice v. Pennsylvania Employees Benefit Trust 
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Fund, 883 A.2d 449, n.10 (Pa. 2005). Thus, Herman’s coordinate 

jurisdiction argument is waived for purposes of appeal.

In her next issue, Herman contends that the trial court erred by 

incorrectly applying the appropriate standard of review at the summary 

judgment stage. We review a challenge to the entry of summary judgment 

as follows.

[We] may disturb the order of the trial court only where it is 

established that the court committed an error of law or abused 

its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule 

states that where there is no genuine issue of material fact and 

the moving party is entitled to relief as a matter of law, 

summary judgment may be entered. Where the nonmoving 

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. Failure of a non-moving 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. Lastly, we will review the 

record in the light most favorable to the nonmoving party, and 

all doubts as to the existence of a genuine issue of material fact 

must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) 

(citation omitted). As the plaintiff asserting a cause of action for legal 

malpractice, Herman bore the burden of adducing sufficient evidence of 

record to establish the following elements. First, employment of the 

attorney or other basis for a duty to the plaintiff; second, a failure of the 

attorney to exercise ordinary skill and knowledge; and third, that the failure 
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was the proximate cause of the harm to the plaintiff. See Bailey v. 

Tucker, 621 A.2d 108, 112 (Pa. 1993).

With respect to the third element, causation, we note that the plaintiff 

bears a difficult burden. To establish this element, the plaintiff must prove 

that she would have been successful in achieving a judgment in her favor in 

the underlying case. See Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 

1998). “It is only after the plaintiff proves [she] would have recovered a 

judgment in the underlying action that the plaintiff can then proceed with 

proof that the attorney [she] engaged to prosecute or defend the underlying 

action was negligent in the handling of the underlying action ....” Id.

Here, the injury suffered by Herman was the reduction in pay and 

hours for her job as jury clerk. Herman does not contend that Judge Webb 

independently effectuated this reduction. Rather, all parties acknowledge 

that the action was taken by the County Commissioners.

In the underlying action, Herman sued the County Commissioners who 

voted in favor of her demotion. As noted above, the Middle District of 

Pennsylvania held that that Herman had failed to adduce sufficient evidence 

to establish that Herman’s alleged protected activities had been a substantial 

factor in the County Commissioners’ decision to demote her. Specifically, 

the District Court highlighted the fact that, when asked about evidence that 

the County Commissioners had been motivated by her protected activity, 
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Herman admitted that she had none. See Herman, 2009 WL 1259083 at 

*6.

Herman contends that pursuant to the “cat’s paw” theory of liability,

including Judge Webb as a defendant would have allowed her to impute 

Judge Webb’s improper motive to the County Commissioners. In a “cat’s 

paw” case, a plaintiff seeks to hold her employer liable for the improper 

motives of a non-decision maker. See McKenna v. City of Philadelphia, 

649 F.3d 171, 177 (3d Cir. 2011). In these cases, an employer can be held 

liable “because one of its agents committed an action based on 

discriminatory animus that was intended to cause, and did in fact cause, an 

adverse employment decision.” Staub v. Proctor Hospital, 131 S.Ct. 

1186, 1193 (U.S. 2011). The plaintiff’s burden is to establish that the nondecision making agent, motivated by an improper purpose, acted in a 

manner designed to produce the adverse employment decision. See id., at 

1192-1193.

We conclude that Staub is distinguishable from the present case, as 

Herman does not contend that any of the reasons provided by Judge Webb 

to the County Commissioners for the adverse employment action were 

untrue or otherwise inaccurate. Nor can she establish that the reasoning 

that the County Commissioners claimed in support of taking the action were 

pretextual. In the record currently before us, Herman provides no evidence 

to contradict the following reasoning, set forth by the Middle District of 
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Pennsylvania in its memorandum granting summary judgment to the County 

Commissioners.

[Judge Webb] based his recommendation on an analysis that the 

staffing level was unnecessary. He concluded that the manual 

methods plaintiff used to update the jury pool were timeconsuming and inefficient, and that computer-based methods 

would reduce the time and cost required for such updates. 

Accordingly, the Judge recommended that the jury clerk position 

be reduced to a part-time job. The board based its decision to 

make the jury-clerk position half-time on this recommendation. 

Judge Webb’s decision reducing staffing was consistent with the 

approach advocated by the Pennsylvania Supreme Court to 

reduce staffing.

Herman, 2009 WL 1259083 at *5 (citations omitted).

Put simply, we conclude that Herman has failed to establish that 

including Judge Webb as a defendant in the underlying action would have 

changed the outcome in the Middle District of Pennsylvania. Even assuming, 

as we must under our standard of review, that Judge Webb was motivated 

by an improper animus of retaliation, there is no evidence, or even 

argument, that the reasons he presented to the County Commissioners were 

untrue with respect to any factual assertions. To the extent that Judge 

Webb’s presentation to the County Commissioners involved his own personal 

opinions, there is no evidence, or even argument, that these opinions were 

against the policy set forth by the Supreme Court of Pennsylvania, nor is 

there evidence or argument that such policy was applied in a discriminatory 

manner. Thus, Herman failed to establish that Judge Webb’s alleged 

retaliatory animus was a proximate cause of the County Commissioner’s 
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decision to reduce the hours and rate of pay of Herman’s job. Herman’s 

argument on appeal merits no relief.

Order affirmed. Application for Leave to Supplement the Reproduced 

Record denied. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/2015