J-A04021-15 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

ALDIS RUTYNA AND MARY JANE 

RUTYNA, 

IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellants 

v. 

WILLIAM S. SCHWEERS, JR., AND 

HARRINGTON, SCHWEERS, DATILLO & 

MCCLELLAND, P.C., 

 Appellees No. 1170 WDA 2014 

Appeal from the Order of July 14, 2014 

In the Court of Common Pleas of Allegheny County 

Civil Division at No(s): GD 07-025594 

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ. 

MEMORANDUM BY OLSON, J.: FILED APRIL 1, 2015 

Appellants, Aldis Rutyna and Mary Jane Rutyna, appeal from the order 

entered on July 14, 2014, which granted the motion for summary judgment 

that was filed on behalf of William S. Schweers, Jr. (hereinafter “Attorney 

Schweers”) and Harrington, Schweers, Datillo & McClelland, P.C. (hereinafter 

“the Law Firm”). We vacate the trial court’s order and remand. 

We previously explained the underlying facts of this case. We quote, 

in part, from our prior factual summary: 

On May 18, 2006, [Attorney] Schweers filed a medical 

malpractice complaint on behalf of [Appellants, naming, as 

defendants, William P. Donaldson, III, M.D. and the

University of Pittsburgh Medical Center – Presbyterian. The 

complaint alleged] that Mr. Rutyna was injured as a result 

of negligence during surgery. After [Attorney] Schweers did 
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not file a certificate of merit, a judgment of non pros was 

entered and the case [was] dismissed. 

On December 5, 2007, [Appellants] filed a complaint

against [Attorney Schweers and the Law Firm]. In that 

complaint, [Appellants] alleged that [Attorney] Schweers 

committed professional [malpractice] when he failed to file 

the required certificate of merit, resulting in the entry of a 

non pros judgment against [Appellants]. [Appellants] also 

alleged that [Attorney] Schweers made misrepresentations 

to them to conceal his misconduct and to prevent 

[Appellants] from seeking a different attorney. In their 

complaint, [Appellants] raised claims of professional 

negligence, fraudulent misrepresentation, negligent

misrepresentation, breach of fiduciary duty, and breach of 

contract against [Attorney] Schweers. [Appellants] alleged 

respondeat superior/vicarious liability and Unfair Trade 

Practices and Consumer Protection Law violations against 

the Law Firm. A certificate of merit for each defendant was 

attached to the complaint. 

[Attorney Schweers and the Law Firm] filed preliminary 

objections. On January 18, 2011, [Appellants] filed an 

amended complaint. On January 19, 2011, the trial court 

struck the amended complaint, and dismissed with 

prejudice from the original complaint the counts of

fraudulent and negligent misrepresentation and breach of 

fiduciary duty against [Attorney] Schweers, and violations 

of the Unfair Trade Practices and Consumer Protection Law 

against the Law Firm. The order also struck several 

paragraphs from the complaint that alleged that [Attorney] 

Schweers made misrepresentations to [Appellants. The 

result of the trial court’s order was that only Appellants’ 

claims for professional negligence, breach of contract, and 

vicarious liability remained pending before the trial court]. 

Rutyna v. Schweers, 100 A.3d 325 (Pa. Super. 2014) (unpublished 

memorandum) at 1-3 (internal footnotes omitted) (internal italics added). 

On September 11, 2012, Attorney Schweers and the Law Firm filed a 

motion for summary judgment. As the movants claimed, during the 
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underlying medical malpractice action, Attorney Schweers sought to obtain 

an expert medical report from Dr. Lance Perling. However, the movants 

claimed, Dr. Perling “prepared a written report which yielded a negative 

opinion[; in particular, Dr. Perling concluded] that Dr. Donaldson and UPMC 

were not responsible for [Mr. Rutyna’s] condition.”1, 2 Motion for Summary 

Judgment, 9/11/12, at ¶ 11 (internal emphasis omitted). 

Attorney Schweers and the Law Firm noted that, for Appellants to 

prevail on their legal malpractice claim, Appellants must be able to prove the 

following three elements: “(1) [t]he employment of the attorney or other 

basis for duty; (2) [t]he failure of the attorney to exercise ordinary skill and 

knowledge; and (3) [t]hat such negligence was the proximate cause of 

damage to the plaintiff.” Rizzo v. Haines, 555 A.2d 58, 65 (Pa. 1989); see

Motion for Summary Judgment, 9/11/12, at ¶ 35. According to the 

movants, since Attorney Schweers could not obtain a favorable expert 

opinion from Dr. Perling to support the underlying medical malpractice 

____________________________________________ 

1

 Attorney Schweers and the Law Firm attached a copy of Dr. Perling’s letter 

to their summary judgment motion. Motion for Summary Judgment, 

9/11/12, at “Exhibit 5.” 

2

 Within their summary judgment motion, Attorney Schweers and the Law 

Firm claimed: “[Attorney Schweers and the Law Firm] have now obtained 

two negative expert reviews on the case, one oral and one in writing.” 

Motion for Summary Judgment, 9/11/12, at ¶ 24. However, the summary 

judgment motion did not specify who provided the “oral” expert review – 

and there was no documentation to support the statement regarding an 

“oral” expert review. 
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action, Attorney Schweers could not file a certificate of merit in the 

underlying case. Therefore, the movants claimed, Appellants are unable to 

sustain their burden of production in this legal malpractice case, as 

Appellants cannot establish that Attorney Schweers failed to “exercise 

ordinary skill and knowledge” when he failed to file a certificate of merit in 

the underlying medical malpractice case. Id. at ¶¶ 41-42. 

Moreover, within the summary judgment motion, Attorney Schweers 

and the Law Firm claimed that Appellants are unable to prove that the 

alleged negligence was the proximate cause of their damages, as: 

“[Appellants] have not presented any particular piece of evidence to prove 

that [Attorney Schweers] did not obtain at least one medical expert report” 

and it was speculative to conclude that Attorney Schweers should have 

found “a doctor that was willing to opine that [Appellants’] case had merit.” 

Id. at ¶¶ 46-54. 

Finally, Attorney Schweers and the Law Firm claimed that they were 

entitled to summary judgment because Appellants refused to pay for their 

case to be reviewed by other experts. See id. at ¶¶ 16-17. 

On December 11, 2012, Appellants filed their response to the 

summary judgment motion. Within their response, Appellants: denied the 

movants’ declaration that Dr. Perling’s review constituted a comprehensive, 

expert review of their claim, as Dr. Perling had reviewed the case before all 

of Mr. Rutyna’s relevant medical information was collected; claimed that 

Attorney Schweers “never submitted [Mr. Rutyna’s] medical records and 
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other documentation to any expert medical witness or requested a case 

evaluation therefrom;” claimed that “[Attorney Schweers’] failure to file a 

certificate of merit was not the result of not being able to find a suitable 

medical review[, i]nstead, it was the result of [Attorney Schweers’] failure to 

adequately seek one;” asserted that Attorney Schweers had actively misled 

them as to the status and condition of their case; claimed that Attorney 

Schweers promised them that he would “handle” the fees associated with 

procuring an expert opinion; and, claimed that Attorney Schweers and the 

Law Firm promised to pay all of the litigation costs associated with the 

medical malpractice action.3 Appellants’ Response to Motion for Summary 

Judgment, 12/11/12, at ¶¶ 11, 16-17, 22, 31, 32, 38, 41, 51, 52, 53, and 

54. 

Further, even though Attorney Schweers and the Law Firm did not 

move for summary judgment on the ground that Appellants failed to produce 

an expert medical report to support their action, Appellants attached an 

expert medical report to their response. The report was authored by Dr. 

Mark R. Foster and, within the report, Dr. Foster opined that Dr. Donaldson 

had deviated from the standard of care during and following Mr. Rutyna’s 

____________________________________________ 

3

 Appellants also denied the movants’ unsupported claim that Attorney 

Schweers “obtained two expert reports.” Appellants’ Response to Motion for 

Summary Judgment, 12/11/12, at ¶ 41. 
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surgery, and that the deviations from the standard of care caused harm to 

Mr. Rutyna. Specifically, Dr. Foster opined: 

Dr. Donaldson’s care [was] significantly below the standard 

of care. First, he damaged the important lower sacral 

nerves, as they passed by his operative sight without 

documenting – or apparently being aware of – the damage 

that he had done. Not only was Dr. Donaldson unable to 

describe what happened, but he does not even describe the 

closure of the dural net, of which he certainly was aware. 

Further, he seems to be taken by surprise when the January 

29, 2004 urinary retention presents itself. Although the 

discharge sheet talks about a transient neurologic injury, 

this is a permanent injury which Dr. Donaldson did not 

recognize when he caused the injury. He still did not 

recognize the injury on [] January 29, 2004 and then 

attributed the problem to operative stretch. An MRI was 

performed to rule out cauda equine syndrome because Dr. 

Donaldson still did not recognize the neurologic permanent 

deficit that he had caused. 

Consequently, Dr. Donaldson not only deviated from the 

standard of care during surgery, he also deviated in the 

standard of care by failing to recognize and care for the 

injury caused. He further suggests in his notes (some of 

which are progress notes from the same day as the 

incident) that muscle strength was five out of five, but the 

resident notes demonstrate some failure of full recovery 

despite decadron, which was given for the motor weakness 

(not even recognizing the neurologic damage eliminating 

continence), and the admission to physical medicine and 

rehabilitation notes demonstrate “a significant diminish of 

the right extensor halluces longus, EHL which is L5 nerve 

root and would be involved with the L4-5 disc” as being the 

grade of 2 out of 5, which is less than anti-gravity strength, 

as anti-gravity strength is 3 out of 5. 

To a reasonable degree of medical certainty, Dr. Donaldson 

caused an intraoperative dural leak which damaged the 

sacral nerve roots. This damage to the sacral nerve roots 

caused permanent neurologic damages and eliminated 

bowel and bladder continence, which were not even 
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recognized by the attending surgeon performing the 

procedure. In addition, prolonged retraction damaged the 

L3 nerve roots, which had been normal on EMG, 

approximately six months later. 

Report of Dr. Mark R. Foster, dated 2/28/08, at 2-3 (attached as “Exhibit 13” 

to Appellants’ Response to the Motion for Summary Judgment). 

Within Appellants’ response, Appellants also averred that, after their 

medical malpractice action was dismissed, they retained a new attorney and 

their new counsel “was easily able to obtain” a favorable expert medical 

report to support their medical malpractice claim. Appellants’ Response to 

Motion for Summary Judgment, 12/11/12, at ¶ 52. 

Apparently, oral argument on the summary judgment motion occurred 

on December 17, 2012. See Scheduling Order, 11/21/12, at 1. Following 

oral argument, counsel for Attorney Schweers and the Law Firm handdelivered a letter to the trial judge. In relevant part, the letter reads: 

I am asking the court to grant summary judgment for

[Appellants’] failure to proffer an expert report establishing 

a breach of a standard of care by the lawyer. This is a 2007 

docket case (six years old) and [Appellants] have had 

ample time to secure an expert to establish a breach of a 

standard of care. 

Attorney Schweers’ and the Law Firm’s Letter to the Trial Judge, dated 

12/17/12, at 1. 

Even though Attorney Schweers and the Law Firm did not explicitly 

move for summary judgment on the ground that Appellants “fail[ed] to 

proffer an expert report establishing a breach of a standard of care by the 

lawyer,” the trial court signed the following order: 
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AND NOW, to wit, this 22nd day of [February], 2013, upon 

consideration of [Attorney Schweers’ and the Law Firm’s] 

Motion for Summary Judgment it is hereby ORDERED, 

ADJUDGED and DECREED that [Appellants are to] provide 

an expert report as to liability within 45 days. Failure to do 

so will result in the grant of summary judgment on praecipe

of [Attorney Schweers and the Law Firm]. 

Trial Court Order, dated 2/22/13, at 1. 

As this Court has explained: 

On April 9, 2013, [Attorney Schweers and the Law Firm] 

filed a praecipe to enter summary judgment, because 

[Appellants] had [allegedly] not complied with the [trial 

court’s] February 22[, 2013] order. On April 10, [2013, 

Appellants’] counsel delivered a letter to the [trial] court, 

indicating that [Appellants’ counsel had not] received the 

February 22[, 2013] order. On April 30, 2013, after hearing 

argument, the [trial] court entered summary judgment in 

favor of [Attorney Schweers and the Law Firm]. On May 3, 

2013, [Appellants] filed a notice of appeal [to the Superior 

Court and, within their brief to this Court, Appellants 

claimed that the trial court erred in granting summary 

judgment to Attorney Schweers and the Law Firm because 

“the [trial court] docket did not reflect that notice was given 

of the entry of the order directing [Appellants] to provide an 

expert report, and [Appellants], in fact, never received the 

order.”] 

Rutyna v. Schweers, 100 A.3d 325 (Pa. Super. 2014) (unpublished 

memorandum) at 4 (internal footnotes and some capitalization omitted) 

(internal italics added). 

On March 31, 2014, this Court vacated the trial court’s summary 

judgment order and remanded the case for further proceedings. As we 

explained, “[o]ur review of the docket show[ed] that there [was] no notation 

[on the docket, indicating that the February 22, 2013] order was sent to the 
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parties[,] as required by [Pennsylvania Rule of Civil Procedure] 236.” Id. at 

8. Therefore, we held, since the February 22, 2013 order was never 

properly entered, the grant of summary judgment to Attorney Schweers and 

the Law Firm was erroneous. Id. at 9. 

On remand, Appellants promptly filed an expert legal report to support 

their legal malpractice claim. The report, which was authored by Dennis M. 

Blackwell, Esquire, declared in relevant part: 

[] based on my experience, it is my opinion, expressed to a 

reasonable degree of professional certainty, that the 

standard of care prevailing in Western Pennsylvania in 2006 

required that an attorney handling a medical malpractice 

case for a client make some effort to obtain an expert 

witness to support a certificate of merit, and that an 

attorney that did not contact so much as a single potential 

expert had breached that duty of care. 

It is also my opinion, expressed to a reasonable degree of 

professional certainty, that [] the standard of care 

prevailing in Western Pennsylvania in 2006 required that an 

attorney handling a medical malpractice case for a client 

contact more than one potential expert to support a

certificate of merit, and that an attorney that only contacted 

a single potential expert had breached that duty of care. 

It is critical that I clarify what my opinion IS NOT. You did 

not ask me to opine, nor do I opine that [] the standard of 

care prevailing in Western Pennsylvania in 2006 required 

that an attorney handling a medical malpractice case for a 

client continue to search for an expert to support a 

certificate of merit, until he finds one. 

On a related issue, it is my opinion, expressed to a 

reasonable degree of professional certainty, that [Attorney] 

Schweers’ conduct in terms of his failure to promptly and 

accurately report to his clients, [Appellants], developments 
J-A04021-15 

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in the search for an expert, did not meet the applicable 

standard of care. 

Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6 (emphasis in 

original). 

On April 17, 2014, Attorney Schweers and the Law Firm filed a selftitled “renewed motion for summary judgment.” Within this filing, Attorney 

Schweers and the Law Firm claimed that Attorney Blackwell’s expert legal 

report was insufficient to defeat their summary judgment motion because: 

1) “no legal authority exists to support [Attorney Blackwell’s] assertion . . . 

that the standard of care in Pennsylvania in 2006 required an ‘attorney 

handling a medical malpractice case for a client [to] contact more than one 

potential expert to support a certificate of merit, and that an attorney that 

only contacted a single potential expert had breached that duty of care;’” 2) 

Attorney Blackwell did not opine that “the standard of care prevailing in 

Western Pennsylvania in 2006 required that an attorney handling a medical 

malpractice case for a client continue to search for an expert to support a 

certificate of merit, until he finds one;” and, 3) Attorney Schweers “obtained 

. . . two expert reviews that did not support [Appellants’] position.” 

Renewed Motion for Summary Judgment, 4/17/14, at ¶¶ 40-54. 

By order entered on July 14, 2014, the trial court again granted 

summary judgment against Appellants and in favor of Attorney Schweers 

and the Law Firm. Within the trial court’s memorandum order, the trial 

court declared that Attorney Blackwell’s expert legal report was insufficient 

to defeat the summary judgment motion because Attorney Blackwell refused 
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to opine that “the standard of care prevailing in Western Pennsylvania in 

2006 required that an attorney handling a medical malpractice case for a 

client continue to search for an expert to support a certificate of merit, until 

he finds one.” Trial Court Order, 7/14/14, at 2. 

Appellants filed a timely notice of appeal and Appellants now raise the 

following claims to this Court:4

[1.] Did the [trial] court err in citing only a small portion of 

the expert report, when a reading of the report as a whole 

clearly set forth sufficient grounds to support a finding that 

[Attorney] Schweers failed to comply with the standard of 

care? 

[2.] Did the trial court commit reversible error when, in 

deciding [the] summary judgment motion, it removed from 

the fact-finder the question of the weight to be accorded 

[Appellants’] legal expert opinion and purported to make 

that determination, itself? 

[3.] Did the [trial] court err in making certain findings of 

fact, when those facts had clearly been disputed by

[Appellants]? 

Appellants’ Brief at 4 (some internal capitalization omitted). 

We note: 

Our scope of review of a trial court’s order granting or 

denying summary judgment is plenary, and our standard of 

review is clear: the trial court’s order will be reversed only 

____________________________________________ 

4

 The trial court did not order Appellants to file a concise statement of errors 

complained of on appeal, pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b), and Appellants did not file a Rule 1925(b) statement on 

their own initiative. 
J-A04021-15 

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where it is established that the court committed an error of 

law or abused its discretion. 

Summary judgment is appropriate only when the record 

clearly shows that there is no genuine issue of material fact 

and that the moving party is entitled to judgment as a 

matter of law. The reviewing court must view the record in 

the light most favorable to the nonmoving party and resolve 

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

fact against the moving party. Only when the facts are so 

clear that reasonable minds could not differ can a trial court 

properly enter summary judgment. 

Englert v. Fazio Mech. Serv.’s, Inc., 932 A.2d 122, 124 (Pa. Super. 2007) 

(internal citations omitted). 

Appellants claim that the trial court erred when it granted the 

summary judgment motion that was filed by Attorney Schweers and the Law 

Firm. As Appellants first claim, in granting the summary judgment motion, 

the trial court necessarily “disregarded [the] opinions expressed in 

[Attorney] Blackwell’s [expert] report that unquestionably support[ed] 

[Appellants’] claims.” Appellant’s Brief at 20 (some internal capitalization 

omitted). According to Appellants, the trial court attempted to support its 

order by citing to a superfluous statement within Attorney Blackwell’s expert 

report and the trial court then erroneously based its order upon the 

superfluous statement. Id. We agree. 

As this Court has explained: 

Our Supreme Court has held that “a legal malpractice action 

in Pennsylvania requires the plaintiff to prove that he had a 

viable cause of action against the party he wished to sue in 

the underlying case and that the attorney he hired was 

negligent in prosecuting or defending that underlying case 

(often referred to as proving a ‘case within a case’).” 
J-A04021-15 

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Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998). 

To prove [a legal] malpractice action, the plaintiff “must 

initially establish by a preponderance of the evidence that 

he would have recovered a judgment in the underlying 

action.” Id. “It is only after the plaintiff proves he would 

have recovered a judgment in the underlying action that 

[he] can then proceed with proof that the attorney he 

engaged to prosecute . . . the underlying action was 

negligent in the handling of the underlying action and that 

negligence was the proximate cause of the plaintiff’s loss 

since it prevented [him] from being properly compensated 

for [his] loss.” Id. To establish [the] legal malpractice 

claim, the plaintiff must satisfy the following three-prong 

test[:] 

1) [E]mployment of the attorney or other basis for a 

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. 

Sokolsky v. Eidelman, 93 A.3d 858, 862 (Pa. Super. 2014) (internal 

corrections omitted). 

Within Appellants’ complaint, Appellants alleged that Attorney 

Schweers was professionally negligent because he failed to timely file a 

certificate of merit in the underlying medical malpractice case and because, 

during the underlying action, Attorney Schweers misrepresented the status 

of Appellants’ case “to conceal his misconduct and/or preclude [Appellants] 

from retaining another attorney.” Appellants’ Complaint, 12/5/07, at ¶¶ 17-

19. At the close of discovery, Attorney Schweers and the Law Firm filed a 

summary judgment motion, wherein they raised the following grounds for 

relief: Attorney Schweers obtained a negative expert opinion from Dr. 
J-A04021-15 

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Perling and, therefore, Attorney Schweers was unable to file a certificate of 

merit in the underlying medical malpractice action; Attorney Schweers 

obtained a second negative expert opinion, from an unidentified source, in 

the underlying action; it was speculative to conclude that Attorney Schweers 

should have found “a doctor that was willing to opine that [Appellants’ 

medical malpractice] case had merit;” and, Appellants refused to pay for 

their medical malpractice case to be reviewed by other experts. 

Appellants responded to the summary judgment motion by: claiming 

that Dr. Perling’s review of the case was necessarily incomplete, as Dr. 

Perling had reviewed the case before all of Mr. Rutyna’s relevant medical 

information was collected; denying Attorney Schweers’ unsupported 

statement that he received a second negative expert opinion in the medical 

malpractice case; and, claiming that Attorney Schweers promised them that 

he would advance the fees necessary to obtain further expert medical 

reviews and that the firm would pay for all litigation expenses. Further, 

Appellants filed an expert legal report, authored by Attorney Blackwell, 

wherein Attorney Blackwell declared: 

[] based on my experience, it is my opinion, expressed to a 

reasonable degree of professional certainty, that the 

standard of care prevailing in Western Pennsylvania in 2006 

required that an attorney handling a medical malpractice 

case for a client make some effort to obtain an expert 

witness to support a certificate of merit, and that an 

attorney that did not contact so much as a single potential 

expert had breached that duty of care. 
J-A04021-15 

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It is also my opinion, expressed to a reasonable degree of 

professional certainty, that [] the standard of care 

prevailing in Western Pennsylvania in 2006 required that an 

attorney handling a medical malpractice case for a client 

contact more than one potential expert to support a

certificate of merit, and that an attorney that only contacted 

a single potential expert had breached that duty of care. 

It is critical that I clarify what my opinion IS NOT. You did 

not ask me to opine, nor do I opine that [] the standard of 

care prevailing in Western Pennsylvania in 2006 required 

that an attorney handling a medical malpractice case for a 

client continue to search for an expert to support a 

certificate of merit, until he finds one. 

On a related issue, it is my opinion, expressed to a 

reasonable degree of professional certainty, that [Attorney] 

Schweers’ conduct in terms of his failure to promptly and 

accurately report to his clients, [Appellants], developments 

in the search for an expert, did not meet the applicable 

standard of care. 

Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6 (emphasis in 

original). 

Notwithstanding the fact that the above-quoted, penultimate 

paragraph in Attorney Blackwell’s report was superfluous, the trial court 

based its summary judgment ruling upon that superfluous statement. 

Specifically, the trial court granted Attorney Schweers’ and the Law Firm’s 

motion for summary judgment because Attorney Blackwell did not render 

an opinion on whether “the standard of care prevailing in Western 

Pennsylvania in 2006 required that an attorney handling a medical 

malpractice case for a client continue to search for an expert to support a 

certificate of merit, until he finds one.” Trial Court Opinion, 7/14/14, at 2. 
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The trial court’s reasoning in this case was erroneous, given that 

Attorney Blackwell’s statement in the above-quoted, second-to-last 

paragraph neither added to nor detracted from the opinions contained in his 

expert report. Further, when Attorney Blackwell’s actual, stated opinions in 

the expert report are combined with Appellants’ response to the summary 

judgment motion, it is evident that the trial court erred when it granted 

summary judgment to Attorney Schweers and the Law Firm. Indeed, when 

the record is viewed in the light most favorable to Appellants, the record 

demonstrates that Attorney Schweers contacted, at most, one expert – Dr. 

Perling – to support the certificate of merit in the underlying case.5 

However, as Attorney Blackwell opined, when an attorney contacts only one 

potential expert to support a certificate of merit and then receives a negative 

response, the attorney breached the standard of care he owes to his client. 

In the words of Attorney Blackwell: 

the standard of care prevailing in Western Pennsylvania in 

2006 required that an attorney handling a medical 

malpractice case for a client contact more than one

potential expert to support a certificate of merit, and that 

an attorney that only contacted a single potential expert 

had breached that duty of care. 

____________________________________________ 

5As stated, the record, viewed in a light most favorable to the Appellant, 

leads to the conclusion that Attorney Schweers contacted only one potential 

medical expert. Attorney Schweers and the Law Firm refute this and claim 

that a second expert was contacted (a factual allegation denied by the 

Appellants). Thus, at a minimum, a genuine issue of material fact exists 

which makes summary judgment inappropriate. 
J-A04021-15 

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Report of Dennis M. Blackwell, Esquire, dated 4/7/14, at 6. 

Attorney Blackwell’s stated opinion clearly demonstrates that there is a 

genuine issue of material fact as to whether Attorney Schweers breached his 

duty of care when he contacted only one potential expert to support the 

certificate of merit. The trial court’s ruling to the contrary was erroneous.6,

7, & 8

____________________________________________ 

6

 The trial court also erred in granting summary judgment to Attorney 

Schweers and the Law Firm, as Appellants’ professional malpractice claim 

was not limited to the single contention that Attorney Schweers was 

negligent in contacting only one potential expert. Rather, within Appellants’ 

complaint, Appellants also claimed that Attorney Schweers was 

professionally negligent because he misrepresented the status of Appellants’ 

case “to conceal his misconduct and/or preclude [Appellants] from retaining 

another attorney.” Appellants’ Complaint, 12/5/07, at ¶¶ 17-19. Moreover, 

Appellants claimed that they suffered harm as a result of Attorney Schweers’ 

misrepresentations and concealments and Appellants attached an expert 

report from Attorney Blackwell, wherein Attorney Blackwell specifically 

opined that Attorney Schweers’ misrepresentations and concealments 

constituted a breach of an attorney’s duty of care. Thus, Appellants 

established that there was a genuine issue of material fact as to whether 

Attorney Schweers was professionally negligent when he, allegedly, 

misrepresented the status of Appellants’ case “to conceal his misconduct 

and/or preclude [Appellants] from retaining another attorney.” Id. 

7

 According to Appellants’ second claim on appeal, the trial court erred when 

it “refus[ed] to defer to the conclusions set forth in [Appellants’] expert 

report.” Appellants’ Brief at 20-22. We will not independently discuss this 

claim, as it is subsumed within Appellants’ first claim on appeal. See also

Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010) (“[i]t has 

long been Pennsylvania law that, while conclusions recorded by experts may 

be disputed, the credibility and weight attributed to those conclusions are 

not proper considerations at summary judgment; rather, such 

determinations reside in the sole province of the trier of fact”). 
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Further, although this Court may affirm a trial court’s ruling upon any 

basis, in this case there was simply no basis upon which the trial court could 

have granted the summary judgment motion that was filed by Attorney 

Schweers and the Law Firm. Therefore, we vacate the trial court’s order and 

remand for further proceedings. 

Order vacated. Case remanded. Jurisdiction relinquished. 

Judge Bowes joins this memorandum. 

Judge Strassburger files a Concurring Statement. 

(Footnote Continued) _______________________ 

8

 Within Appellants’ third claim on appeal, Appellants contend that the trial 

court is biased against them. Appellants thus request this Court to instruct 

that, on remand, a different trial judge hear the case. Appellants’ Brief at 

28. In support of their claim, Appellants note that, within the trial court’s 

factual recitation to this Court, the trial court acted in contravention of its 

standard of review by purporting to resolve two disputed factual issues 

against Appellants and in favor of Attorney Schweers and the Law Firm. Id.

at 22-24. Further, Appellants note: that the trial court initially “dismissed 

[Appellants’ c]omplaint because [Appellants] had not filed an expert report, 

notwithstanding [Appellants’ counsel’s] repeated protests that they had 

never received the order telling them to do so and additionally pointing out 

that the docket did not reflect that the order had been mailed” and that the 

trial court “complete[ly] disregard[ed] the opinions stated in [Attorney 

Blackwell’s] expert report in favor of a non-opinion found in that report, as a 

basis for dismissing this case a second time.” Id. at 27 (internal 

capitalization omitted). However, this Court lacks authority to remove a 

judge from a case. Such power rests solely with our High Court. Reilly v. 

Southeastern Pa. Transp. Auth., 489 A.2d 1291 (1985). See also 

Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006). 
J-A04021-15 

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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date:4/1/2015